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Legal news from Tuesday, December 28, 2010




Mentally disabled immigrants facing deportation accorded right to representation
Erin Bock on December 28, 2010 4:39 PM ET

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[JURIST] A federal judge has ruled that US Immigration Customs and Enforcement (ICE) [official website] officials must provide representation to two mentally disabled immigrants [JURIST news archive] who are challenging deportation proceedings. The ruling was a landmark decision in immigration proceedings as, unlike criminal courts, immigration courts are not required to provide defense attorneys to indigent defendants. Judge Dolly Gee of the US District Court for the Central District of California [official website] held last week that the men are entitled to representation, but stated that the representative does not have to be an attorney [Mercury News report]. The decision stemmed from a lawsuit [materials] filed by the American Civil Liberties Union of Southern California [advocacy website] arguing that the two men, Jose Franco-Gonzales and Guillermo Gomez-Sanchez, were deprived of their right to due process when they were declared unfit to face immigration proceedings and detained by immigration officials rather than released to their families until the situation was resolved. Although the action was originally filed on behalf of the two men, the court granted a petition to transform it into a class-action suit [LA Times report]. Franco-Gonzalez suffers from severe cognitive disabilities and Gomez-Sanchez was diagnosed with paranoid schizophrenia. Judge Gee released the two men on bail in April, but they are still facing possible deportation.

In October, the ICE and the US Department of Homeland Security (DHS) [official website] announced that US government has deported a record number of illegal immigrants [JURIST report] in 2010. The agencies reported that more than 390,000 illegal immigrants were deported and that half of those deported allegedly had criminal records. In July, a study released by Syracuse University [JURIST report] indicated that backlogs at US immigration courts had increased by more than 30 percent in the previous 18 months. This rise has been attributed to the Obama Administration increasing enforcement of immigration laws [JURIST report]. Federal authorities have indicated that the workload would continue to grow if Arizona's recent immigration law [SB 1070 text; JURIST news archive] is implemented. The Arizona law criminalizes illegal immigration and requires police officers to question an individual's immigration status if the officer has a "reasonable suspicion" to believe an individual is in the country illegally. The constitutionality of the law has been widely disputed, and the legislation is now facing several lawsuits, including a suit filed by the US Department of Justice [JURIST report]. In October, a judge for the US District Court in the District of Arizona [official website] denied [JURIST report] motions to dismiss a class action lawsuit challenging the law's constitutionality.




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SEC sues investors for insider trading in acquisition of biosciences corporation
Matt Glenn on December 28, 2010 3:53 PM ET

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[JURIST] The Securities and Exchange Commission (SEC) [official website] has filed an insider trading complaint [SEC release] against unknown investors in Martek Biosciences Corp. [corporate website], claiming that the investors purchased an unusually large number of call options in Martek in the two weeks preceding the December 21 announcement [DSM release] that DSM [corporate website] planned to purchase Martek. The SEC's complaint, filed last week in the US District Court for the Southern District of New York [official website], alleges that the investors bought 2,615 Martek call options [Baltimore Sun report] between December 10 and 15 and sold the options on December 21, the day on which the previously non-disclosed deal was announced. DSM paid a 35 percent premium over Martek's December 20 closing price in the deal, allowing the investors to make $1.2 million according to the SEC. To prevail on the insider trading [SEC backgrounder] claims, the SEC must show that the defendants purchased the call options on the basis of material nonpublic information. The court agreed to freeze assets from the sale [AP report] on December 23 and scheduled a hearing for January 6.

Recent years have seen an increase in insider trading cases. Last week it was announced that Karl Motey, a cooperating witness in a large insider trading probe, had pleaded guilty [Bloomberg report] earlier in the month to conspiracy and securities fraud. Earlier this month authorities arrested executives from Dell, Advanced Micro Devices (AMD), Flextronics and Taiwan Semiconductor Manufacturing [corporate websites] on insider trading charges [PC Mag report] in part of the same probe that snared Motey. The probe involves expert networks [Reuters report] that facilitate conversations between insiders and investors and whether or not these conversations led to the disclosure of confidential information. In September, a judge sentenced former IBM [corporate website] senior vice president Robert Moffat to six months in prison [JURIST report] and ordered him to pay a $50,000 fine for his role in the largest insider trading trading case in US history. Moffat's conviction was part of the government's investigation into Galleon Group hedge fund founder Raj Rajaratnam [JURIST news archive], who pleaded not guilty [JURIST report] to insider trading charges last December. Prosecutors claim that Rajaratnam and others at Galleon Group solicited nonpublic information from insiders at other companies. Former Qwest CEO Joseph Nacchio began serving a 6-year sentence [JURIST report] for insider trading in April 2009.




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Telecom company reaches settlements with DOJ and SEC in bribery case
Erin Bock on December 28, 2010 3:43 PM ET

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[JURIST] Global telecommunications organization Alcatel-Lucent [corporate website] on Monday agreed to pay more than $137 million [press release] to resolve investigations into its sales practices by the Department of Justice (DOJ) and Securities and Exchange Commission (SEC) [official websites]. The company will pay $92 million as part of a deferred prosecution agreement to resolve the criminal charges filed today by the DOJ in the US District Court for the Southern District of Florida [official website]. The charges consist of one count of "violating the internal control provisions" of the Foreign Corrupt Practices Act (FCPA) [materials] and one count of "violating the books and records provisions" of the FCPA. Additionally, the DOJ filed charges against three of the company's subsidiaries for "conspiring to violate the anti-bribery, books and records, and internal control provisions" of the FCPA. The subsidiaries have agreed to plead guilty to these charges. According to the DOJ statement, the company and its subsidiaries made improper payments to foreign government officials in order to obtain contracts for business in Costa Rica, Honduras, Malaysia and Taiwan and also violated FCPA regulations by hiring third-party sales and marketing agents. The company profited more than $48 million dollars from these transactions. As part of the settlement, Alcatel-Lucent agreed to enhance their compliance procedures, retain an independent compliance monitor for three years, and submit yearly reports to the DOJ. In a separate settlement with the SEC, the company consented to a permanent injunction against FCPA violations and agreed to pay more than $45 million to resolve the matter. Alcatel-Lucent released a statement [text] welcoming the settlements and announcing procedures to prevent such violations from occurring in the future.

Alcatel committed these violations prior to merging with Lucent Technologies in December 2006. Lucent has fought its own legal battles relating to patent infringement. In 2003, Lucent filed 15 patent claims alleging that PC makers violated patents governing digit music technology developed by its research and development organization, Bell Laboratories [corporate website]. Microsoft [corporate website] joined the litigation as an intervenor and counter-claimant, due to its wide circulation of Windows Media Player through its Windows operating system. Claims were also filed against Gateway and Dell [corporate websites]. In February 2007, a federal jury in California found that Microsoft violated two patents and awarded Alcatel-Lucent $1.52 billion in damages [JURIST report]. One week later, a federal judge dismissed [JURIST report] Alcatel-Lucent's second patent infringement suit filed against Microsoft concerning patents related to speech recognition technology. In August 2007, a federal judge overturned the $1.52 billion jury decision [JURIST report], ruling that the verdict "was against the clear weight of the evidence." The US Court of Appeals for the Federal Circuit [official website] affirmed [JURIST report] the decision in 2008.




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Khodorkovsky verdict draws international criticism
Matt Glenn on December 28, 2010 3:00 PM ET

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[JURIST] International human rights organizations and numerous governments criticized Russia's justice system following Monday's guilty verdict [JURIST report] against Mikhail Khodorkovsky [defense website; JURIST news archive] and his business partner Platon Lebedev [defense profile] on embezzlement charges. Amnesty International (AI) [advocacy website] urged Russian courts to overturn the verdict [press release], claiming the trial was unfair and appeared politically motivated. AI claimed that prosecutors failed to provide due process for Khodorkovsky by refusing to allow Khodorkovsky to cross-examine witnesses, harassing and pressuring former colleagues to testify against Khodorkovsky and failing to disclose potentially exculpatory evidence to the defense team. US Secretary of State Hillary Clinton [official profile] also criticized the process [press release], saying that Monday's verdict "raises serious questions about selective prosecution -- and about the rule of law being overshadowed by political considerations. This and similar cases have a negative impact on Russia's reputation for fulfilling its international human rights obligations and improving its investment climate." German Foreign Minister Guido Westerwelle [official profile] also criticized the verdict, stating [press release]:
I am greatly concerned that Mikhail Khordorkovsky and Platon Lebedev have once again been found guilty. The circumstances of the trial were most unsatisfactory and a setback for the modernization to which the country aspires. It is in the interest of our Russian partners to take these concerns seriously and firmly uphold the rule of law, democracy and human rights.
A spokesperson for Russia's Ministry for Foreign Affairs [official website, in Russian] rebuffed criticism from foreign governments [press release, in Russian; RIA Novosti report], declaring "[a]ttempts to exert pressure on the court are unacceptable." Khodorkovsky and Lebedev are currently serving eight-year prison sentences after being convicted on fraud and tax evasion charges [JURIST report] in 2005 stemming from attempts to embezzle valuable assets from Yukos. Prosecutors are seeking a six-year prison term for Khodorkovsky, but a sentence will not be handed down [Moscow Times report] until Judge Viktor Danilkin finishes reading the 250-page verdict.

The trial has not proceeded without considerable political conflict. In May, former Russian prime minister Mikhail Kasyanov [BBC profile] testified [JURIST report] that former president and current prime minister Vladimir Putin [official website; JURIST news archive] ordered Khodorkovsky's arrest for political reasons, indicating that Khodorkovsky had funded the Communist Party [party website, in Russian] without first getting approval to do so from the president. Some critics of the Russian government have argued that the charges against Khodorkovsky and Lebedev are politically motivated [JURIST op-ed] due to Khodorkovsky's opposition to Putin. In March, Khodorkovsky criticized Russia's justice system [JURIST report] as an "assembly line" that inevitably finds the government's political enemies to be guilty. The statement echoed concerns Khodorkovsky had previously expressed about the fairness of Russian trials and the need for widespread reform of the Russian court system [JURIST reports].




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Afghanistan president orders tribunal to hear parliamentary election fraud complaints
Zach Zagger on December 28, 2010 12:47 PM ET

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[JURIST] Afghanistan President Hamid Karzai [BBC profile, JURIST news archive] issued a decree Sunday allowing the country's Supreme Court [official website] to go forward with its plan to set up a tribunal to hear complaints of fraud during the September parliamentary elections [IEC backgrounder]. The tribunal brings doubt over the legitimacy of the elections which have already been tainted by irregularities that forced authorities to invalidate a significant number of votes and disqualify candidates. The decision comes less than a month before the 249-seat parliament is set to convene on January 20 but officials say Karzai is committed to inaugurating the parliament by then. The Supreme Court had initially suggested the tribunal after receiving a flood of complaints passed on by the Attorney General Office [official website]. The Independent Election Commission (IEC) [official website], however, claims that no one has the authority to overturn the results of the election once it has certified them. The tribunal will consist [Reuters report] of a five-judge panel that will review all issues with the election including allegations of criminal fraud and intimidation at the polls.

The September parliamentary elections irregularities raise doubt over the ability of the Afghanistan government to lead. In November, the Afghanistan Electoral Complaints Commission (ECC) [official website] disqualified 21 candidates [JURST report] for electoral fraud after finding widespread voting irregularities in 12 provinces. Of the disqualified candidates, 19 had either won or were leading in their districts, seven of which were incumbents, and two were second place finishers in districts where the first place finisher was also disqualified. In October, the IEC invalidated 1.3 million votes [JURIST report], nearly a quarter of the 5.6 million votes cast nationwide, due to findings of fraud. The IEC found that the 2,543 polling stations where the votes had been cast did not follow IEC procedures. The 2009 presidential election [JURIST news archive] of Karzai was also marred by fraud allegations.




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Nine men charged in UK for terror plot against US Embassy
Zach Zagger on December 28, 2010 10:59 AM ET

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[JURIST] Nine men were charged and taken custody on Monday in the UK for conspiring to bomb the US Embassy and the London Stock Exchange [official websites]. The charges come after [AP report] British authorities had apprehended 12 men on December 21 as part of raids to capture suspected terrorists. Four of the men charged are from Stoke-on-Trent, three are from Cardiff, and two more are from London. Three were released uncharged. The men are being charged [BBC report] with conspiring to cause an explosion and for engaging in conduct in preparation for terrorist acts under 5(1) of the British Terrorism Act of 2006 [text]. The men are alleged to have carried out reconnaissance on potential targets, downloaded research and materials, and tested explosive devices. US State Department [official website] spokesman Mark Toner told reporters in Washington [press release] that US officials in the UK were aware of the charges and "are working quite closely with British authorities, and appreciate the high level of cooperation that we have with them and are obviously taking suitable security precautions." British Security officials stated that the plots were not planned for over the holidays and were not connected to any larger European terror plots. The men will appear before England's Central Criminal Court [official website] in London on January 14.

The UK has been proactive about prompt apprehension of terror suspects since the July 2005 London transit bombings [JURIST report; JURIST news archive] that killed 52 people and injured 700 others. In October, a UK court began inquests into the bombings [JURIST report] to determine whether more lives could have been saved with a quicker response. In July, the UK Woolwich Crown Court sentenced three British Muslims to a minimum of 20 years in prison after being convicted [JURIST reports] under the Terrorism Act of 2006 for involvement with a 2006 plot to blow up numerous transatlantic flights to life in prison.




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