Federal Criminal Law

Courthouse Steps: Maslenjak v. United States Update

Criminal Law & Procedure Practice Group Teleforum Wednesday, July 05, 02:00 PMFederalist Society Teleforum Conference Call

At the close of the Bosnian civil war, Divna Maslenjak sought refuge for herself and her family in the U.S. due to fear of persecution regarding their Serbian identity in modern-day Bosnia and the threat of reprisal against her husband, who she claimed had evaded military conscription in the Bosnian Serb militia. After the family was granted refuge and Maslenjak became a U.S. citizen, a U.S. court convicted Maslenjak’s husband Ratko on two counts of falsifying claims regarding Serbian military service on U.S. government documents, since Ratko had in fact served in the Serbian military. When Ratko applied for asylum to avoid deportation, Divna Maslenjak admitted to lying about her husband’s military service and was charged with two counts of naturalization fraud for previously denying that she had given false information to a U.S. official. At her trial, jurors were told that a naturalization fraud conviction could be carried out for false claims in Maslenjak’s application process, even if the claims did not affect whether she was approved. Convicted on both counts, Divna Maslenjack faced two years of probation and lost her citizenship. The Sixth Circuit affirmed her conviction, claiming that naturalization fraud did not require proof of a material false statement.

Please join us as Vikrant Reddy, a Senior Research Fellow at the Charles Koch Institute, discusses the potential impact of the recent Supreme Court ruling and the main question of the case: whether immaterial false statements should be a basis for withdrawing an individual’s citizenship.


  • Vikrant P. Reddy, Senior Research Fellow, Charles Koch Institute

Ziglar v. Abbasi Decided - Are Government Officials Liable for Damages?

Monday, June 26, 03:00 PMFederalist Society Teleforum Conference Call

Ziglar v. Abbasi is the result of over a decade of remands and appeals. The case was originally filed by the Center for Constitutional Rights on behalf of incarcerated Muslim, South Asian, and Arab non-citizens who were targeted after 9/11 by law enforcement as “terrorism suspects.” The defendants in the case, high level officials in the Bush administration, such as Attorney General John Ashcroft and FBI director Robert Mueller, and low level detention officials, filed a motion to dismiss, which was rejected by the in the District Court.

In 2009, the Supreme Court decided in Ashcroft v. Iqbal that government officials were not liable for discriminatory actions of their subordinates without evidence they directly ordered the actions. Meanwhile, five of the petitioners in Ziglar settled with the government, and the case was remanded to the District Court and amended. In 2010, the District Court granted a new motion of dismissal, but only for the high level officials. This dismissal was reversed by the Second Circuit.

The main question the Supreme Court answered was whether these high-level government officials could be sued for damages under the Bivens precedent. The precedent, created in a 1971 case involving the Federal Bureau of Narcotics, created an implied cause of action for any person whose Fourth Amendment rights are violated by federal officials. On Monday, June 19 the Supreme Court refused to extend the Bivens precedent to the petitioners, reversing the decision by the Second Circuit and remanding the case.

David Rivkin of Baker Hostelter will join us to discuss the opinion and its significance.


  • David B. Rivkin Jr., Partner, Baker & Hostetler LLP 

Legislating Clemency - Podcast

Criminal Law & Procedure Practice Group Podcast
Margaret Love, John G. Malcolm June 16, 2017

The enactment of lengthy no-parole sentences and the atrophy of other statutory early release mechanisms has placed unusual demands on the clemency mechanism in recent years, notably in the federal system. Similarly, an increase in the number and severity of collateral penalties has made pardon the only way most people with a criminal record can pay their debt to society. As Enlightenment philosophers recognized, clemency was never intended to substitute for a well-functioning legal system. With all due respect to Alexander Hamilton, in today’s world it is questionable whether a politician is “a more eligible dispenser of the mercy of the government” than a court.

The American Law Institute recently approved a revision of the sentencing articles of the Model Penal Code, the first such revision in 60 years. The revised MPC includes provisions intended to reduce the need for executiveclemency, in two ways. First, the MPC provides authority for courts to reduce prison sentences in situations where circumstances have fundamentally changed. Second, the MPC proposes a comprehensive scheme for managing the collateral consequences of conviction that makes courts the primary source of relief. Former U.S. Pardon Attorney Margaret Love, currently the Executive Director of the Collateral Consequences Resource Center, will discuss the merits and potential consequences of these proposed MPC reforms.


  • Margaret Love, Law Office of Margaret Love
  • Moderator: John Malcolm, Director, Edwin Meese III Center for Legal and Judicial Studies, and Ed Gilbertson and Sherry Lindberg Gilbertson Senior Legal Fellow, The Heritage Foundation

Beyond the Yates Memo: A New Era of Enforcement? - Event Audio/Video

Criminal Law & Procedure Practice Group
Alice Fisher, Matthew S. Miner, George J. Terwilliger, Richard J. Leon June 16, 2017

In this sequel to our panel last year on “The Limits of Federal Criminal Law,” we ask a distinguished panel to discuss how enforcement policy is evolving under Attorney General Jeff Sessions. Is the Yates Memo targeting individual employees of a corporation still operative? Do the speeches of the new Attorney General give any insights into future enforcement tendencies?

This event was held on June 13, 2017, at the National Press Club in Washington, DC.


  • Hon. Alice Fisher, Partner, Latham & Watkins LLP 
  • Matthew S. Miner, Partner, Morgan, Lewis & Bockius LLP
  • Hon. George J. Terwilliger III, Partner, McGuireWoods LLP  
  • Moderator: Hon. Richard J. Leon, U.S. District Court for the District of Columbia

National Press Club
Washington, DC

Courthouse Steps: Esquivel-Santana v. Sessions - Podcast

Criminal Law & Procedure Practice Group Podcast
Vikrant P. Reddy June 14, 2017

The Immigration and Nationality Act (INA) was used as grounds for the deportation of Juan Esquivel-Quintana, a permanent resident admitted to the U.S. in 2000, after he pled guilty to a California statute in 2009, making sexual intercourse with a minor more than three years younger than the perpetrator a misdemeanor or felony. After the California ruling, Esquivel-Quintana moved to Michigan where the Department of Homeland Security used INA to remove him from the country. INA states that a non-citizen convicted of an aggravated felony (ex: sexual abuse of a minor) may be removed from the United States. An immigration judge authorized Esquivel-Quintana’s removal from the country after finding him guilty of sexual abuse of a minor. The Board of Immigration Appeals (BIA) affirmed the decision without looking at the individual facts of the case; and the U.S. Court of Appeals affirmed the BIA’s decision, establishing that BIA should be afforded deference considering an ambiguous statute under Chevron, USA, Inc. v. Natural Resources Defense Council, Inc. Additionally, BIA found that the rule of lenity, which favors defendants in the face of ambiguous statutes, did not apply.

Vikrant Reddy, a Senior Research Fellow at the Charles Koch Institute, discussed the potential impact of the recent Supreme Court ruling and the main question of the case: whether a California statute’s “unlawful sexual intercourse with a minor” should be considered an aggravated felony (i.e. “sexual abuse of a minor”) under the Immigration and Nationality Act, and therefore, require mandatory removal.


  • Vikrant P. Reddy, Senior Research Fellow, Charles Koch Institute