Daily Archives: July 16, 2021

The Supreme Court of Pennsylvania recently overturned Bill Cosbys 2018 conviction for crimes of sexual assault. Most have focused on the justness of this outcome. But the courts 79-page opinion also has implications for how witnesses in civil cases navigate the potential risk of self-incriminationincluding witnesses testifying on behalf of a corporation as a corporate designee under Federal Rule of Civil Procedure 30(b)(6).

As we discussed in our blog on invoking the Fifth Amendment in a civil deposition, the privilege can only be claimed if the deponents answer to the question may render them vulnerable to prosecution for a crime. The question must require the witness to confront a substantial and real, and not merely trifling or imaginary, hazardof incrimination.[1] Whether the risk of incrimination is substantial and real is the very issue that has resulted in why Cosby is free today.

Cosbys legal issues started with a criminal investigation in 2005 by then Montgomery County District Attorney Bruce Castor after an alleged victim reported she was sexually assaulted by Cosby in 2004. For a variety of reasons, District Attorney Castor determined that he did not have enough evidence at the time to prosecute Cosby. Prosecutors weigh similar decisions every day, and typically, a prosecutors decision to not proceed with charges is not binding and is subject to reconsideration at a later date. But District Attorney Castor wanted to help the victim seek some justice in a civil case, so he made a promise he could not keephe publicly promised not to prosecute Cosby for that particular crime. Cosbys attorneys then determined that, because he had no reasonable fear of prosecution, he could not invoke his Fifth Amendment right against self-incrimination at a deposition in his civil case. Cosby made multiple admissions of guilt in the depositionin reliance on the promise that he would not be criminally prosecuted.

Whether this promise was enforceable and valid was a hotly litigated issue in the casebut the Supreme Court of Pennsylvania held that whether the promise was properly executed and / or enforceable was irrelevant since Cosby detrimentally relied on it. There was no way to un-ring the bell of his testimony and restore him to a position where he would not have incriminated himself had he utilized his Fifth Amendment protections. So, when District Attorney Castors successor later decided to charge Cosby and used his admissions in the civil deposition against him in the criminal trial, the court held that Cosbys rights to due process and protection from self-incrimination were violated. When an unconditional charging decision is made publicly and with the intent to induce action and reliance by the defendant, and when the defendant does so to his detriment (and in some instances upon the advice of counsel), denying the defendant the benefit of that decision is an affront to fundamental fairness.[2]

The civil and criminal justice systems interweave and collide in many circumstances, and some conduct, even negligent omissions, can raise both criminal and civil consequences. The complex circumstances of Cosbys conviction and subsequent release serve as an ominous reminder that your attorney needs to understand all aspects of potential incrimination and liability.

[1] Marchetti v. United States, 390 U.S. 39, 453 (1968).

[2] Pennsylvania v. Cosby, Supreme Court of Pennsylvania Case No. 39 MAP 2020 (June 30, 2021).

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What Does Bill Cosbys Overturned Conviction Mean for Your Fifth Amendment Rights Against Self-Incrimination? - JD Supra

MOUNTAIN VIEW, Calif., July 15, 2021 /PRNewswire/ -- Wisk Aero LLC ("Wisk"), the Urban Air Mobility (UAM) company behind the first all-electric, self-flying air taxi in the U.S., has submitted a brief in support of its preliminary injunction motion to the San Francisco federal court [FOUND HERE]. The filing details newly-obtained documents and testimony from Archer demonstrating misappropriation of Wisk's trade secrets "on a massive scale," and that an Archer engineer pleaded the Fifth Amendment. The brief states:

Archer's SPAC sponsor, Atlas Crest Investment Corp., disclosed in its July 1 amended S-4 that Archer and three of its employees received grand jury subpoenas from the United States Attorney's Office for the Northern District of California. According to the S-4, the "grand jury subpoenas seek documents and information about Archer's business, including its hiring practices and intellectual property, as well as documents and information relating to the employment of such employees at Wisk, including Wisk's intellectual property, business plans, and information relating to Wisk's aircraft design."

Additional context for Wisk's legal action and latest filing can be found on our website.

ABOUT WISK

Wisk is an urban air mobility company dedicated to delivering safe, everyday flight for everyone. Wisk's self-flying, eVTOL (electric vertical takeoff and landing) air taxi, will make it possible for passengers to skip the traffic and get to their destination faster. Based in the San Francisco Bay Area and New Zealand, Wisk is an independent company backed by The Boeing Company and Kitty Hawk Corporation. With over a decade of experience and over 1500 test flights, Wisk is shaping the future of daily commutes and urban travel, safely and sustainably.

For more information, follow us onLinkedIn,Twitter,InstagramorFacebook, or visitwisk.aero

SOURCE Wisk Aero

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Wisk Submits Evidence Claiming Massive Theft and Archer's Use of Wisk Trade Secrets, as Archer Engineer Pleads the Fifth - PRNewswire

Rhode Island is a small state favored with many natural attractions, not the least of which are its 400 miles of shoreline and more than 8,200 acres of public parks and recreation areas. Such lands frequently abut private property, and their borders have increasingly become sparring rings for individuals declaring rival rights of access and ownership.

As lawmakers continue to look for means of balancing these competing interests, the U.S. Supreme Court issued its ruling in Cedar Point Nursery v. Hassid, refining the terms according to which a state may prohibit private landowners from denying access to their land by third parties. Rhode Island landowners with property adjoining public lands should take note: a state generally cannot compel a private landowner to provide public access without just compensation.

Cedar Point Nursery may be summarized as follows: when the government gives with one hand, it may also take with the other, and the Constitution compels it to pay for what it takes. The Takings Clause of the Fifth Amendment, applicable to the states through the Fourteenth Amendment, provides that private property shall not be taken for public use without just compensation. A physical takingthe clearest sort of takingoccurs when the government physically appropriates private property for public use.

The law before the Court in Cedar Point Nursery was a California regulation that granted union organizers access to agricultural employers property for three hours per day, 120 days per year to solicit support for unionization. The agricultural employers argued that the regulation effected an unconstitutional per se physical taking by appropriating without compensation a right to enter their property. In other words, the regulation granted an easement over the agricultural employers property. On the other hand, the Agricultural Labor Relations Board, the entity that promulgated the regulation at issue, argued that the regulation did not constitute a per se physical taking because it authorized only limited and intermittent access for a narrow purpose. The Board further argued that the regulation should be evaluated as regulatory rather than per se physical taking.

A regulatory taking occurs when the government imposes a regulation that restricts a private landowners ability to use his or her own property, as opposed to appropriating property for itself or a third party. While property may be regulated to a certain extent, if a regulation goes too far in restricting the use of property, it will be recognized as a regulatory taking. According to the Board, the appropriation of a three hour per day, 120 day per year right to invade the agricultural employers property did not constitute a taking of a property interest but rather a mere restriction on its use.

In a 6 to 3 ruling, a majority of the Court held that the regulation constituted a clear, per se taking because it resulted in a physical appropriation of private property. Rather than restraining the agricultural employers use of their property, the regulation appropriated for the enjoyment of third parties the agricultural employers right to exclude. A common way of describing the rights of a property owner is that they constitute a bundle of sticks: each stick is a separate right related to the land, such as the right of possession or enjoyment. The Court emphasized that the right to exclude is universally held to be a fundamental element of property ownershipa principal stick in the bundle, to extend the metaphor. The right to exclude, the Court explained, is not an empty formality that can be modified at the governments pleasure. When the government creates a right to invade private propertywhether by statute, regulation, ordinance, or miscellaneous decreea per se taking has occurred, regardless of the scope, duration, and frequency of the physical invasion. The terms of the permitted invasion bear the amount of compensation due, but not its fundamental effect.

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Give And Take: How The U.S. Supreme Courts Ruling In Cedar Point Nursery v. Hassid May Impact Rhode Islanders Who Own Property Abutting Public Lands -...

The U.S. Supreme Court recently concluded its 2020-21 term. The Court decided several major cases, with many of the more significant decisions released earlier this summer.

Mahanoy Area School District v. B.L. was one of the Courts most anticipated First Amendment cases this year. It involved a high school cheerleader who was suspended from her cheer team for a profanity-laden social media post. By a vote of 8-1, the Court overturned the cheerleaders suspension in Mahanoy. Although the Court interpreted the First Amendment to provide public schools with the power to regulate some off-campus student speech, the justices found that this cheerleaders speech was protected. Justice Stephen Breyer wrote for the majority how a public school has an interest in protecting a students unpopular expression, especially when the expression takes place off campus. Americas public schools are the nurseries of democracy. Our representative democracy only works if we protect the marketplace of ideas.

Americans for Prosperity Foundation v. Bonta was another First Amendment case decided this summer. The justices voted 6-3 that a California requirement that non-profit organizations disclose their donors identities violates the First Amendment. Chief Justice John Roberts explained for the Court that when it comes to the freedom of association, the protections of the First Amendment are triggered not only by actual restrictions on an individuals ability to join with others to further shared goals. The risk of a chilling effect on association is enough.

The Court decided multiple cases interpreting the First Amendments freedom of religion over the last few months. In Fulton v. City of Philadelphia, the Court unanimously struck down Philadelphias refusal to contract with a Catholic foster care agency unless the agency agreed to certify same-sex couples as foster parents. Chief Justice Roberts wrote for the Court, holding the law in question violated the Free Exercise Clause by burdening religion: so long as the government can achieve its interests in a manner that does not burden religion, it must do so.

In another freedom of religion case, Roman Catholic Diocese of Brooklyn v. Cuomo, the Court ruled by a vote of 5-4 that New York State could not ban in-person attendance at religious worship services. A per curiam opinion declared the following: even in a pandemic, the Constitution cannot be put away and forgotten. The restrictions at issue here, by effectively barring many from attending religious services, strike at the very heart of the First Amendments guarantee of religious liberty.

The Court issued several noteworthy constitutional law decisions outside of the First Amendment. One was Cedar Point Nursery v. Hassid, where a 6-3 majority found that a California law granting labor unions a right of access to farmworkers at their worksites violated the property rights of agricultural employers under the Takings Clause of the Fifth Amendment. Chief Justice Roberts again wrote for the Court, explaining for the majority that the access regulation grants labor organizations a right to invade the growers property. It therefore constitutes a per se physical taking.

Jones v. Mississippi saw the Court rule 6-3 that the Eighth Amendment prohibition on cruel and unusual punishment does not require a finding that a juvenile is permanently incorrigible before imposing a sentence of life without parole. Justice Brett Kavanaugh clarified for the Court that while a finding of incorrigibility is not required, there remains a requirement that a sentencer consider youth as a mitigating factor when deciding whether to impose a life-without-parole sentence.

Finally, in California v. Texas the justices by a vote of 7-2 held that plaintiffs challenging the constitutionality of the Affordable Care Acts minimum essential coverage provision lacked standing to sue under Article III of the Constitution. Writing for the Court, Justice Breyer emphasized that since Congress repealed the penalty for not carrying that health insurance coverage, the plaintiffs in this suit failed to show a concrete, particularized injury fairly traceable to the defendants conduct in enforcing the specific statutory provision they attack as unconstitutional.

Next year, the Court is again expected to rule on important constitutional questions, including reviewing laws on abortion and affirmative action. As is typical, next years most anticipated decisions are expected in June.

Eric T. Kasper is a professor of political science and the director of the Menard Center for Constitutional Studies at UW-Eau Claire. He also serves as the municipal judge for the city of Rice Lake and is a member of the Wisconsin Bar Association.

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Ink Blog: The Supreme Court & the Constitution in 2021 - Ashland Daily Press

A man prosecuted for assault in theUte Mountain Ute's judicial system is turning to the U.S. Supreme Court, arguing his subsequent conviction in federal court violated his constitutional right against double jeopardy.

Merle Denezpi is asking the justices to determine whether the "CFR Court" for the Ute Mountain Reservation named for the Code of Federal Regulations provision that established it is an arm of the federal government rather than a sovereign entity. The answer could illuminate whether he deserved to have his second case dismissed entirely.

"CFR courts differ from tribal courts and whether federal or tribal sovereignty is the source of their prosecutorial powers is an important question this Court has not yet answered," Santa Fe attorney Theresa M. Duncan wrote to the Supreme Court in Denezpi's petition.

According to court records, Denezpi, of Shiprock, N.M., traveled into the reservation in July 2017 to his girlfriend's house near the town ofTowaoc. Denzpi, a Navajo tribal member, traveled there with his victim, also Navajo, and at the house he threatened and sexually assaulted her.

The victim was able to escape in the early morning and after being picked up by police, she reported the assault to tribal authorities and underwent a forensic examination that documented numerous injuries to her body and genitals.

Tribal police arrested Denezpi afterward, and he faced an assault charge in theCourt of Indian Offenses of the Ute Mountain Ute Agency. He ultimately served a sentence of less than five months in custody.

However, a federal grand jury subsequently indicted Denezpi for aggravated sexual abuse in Indian Country. The crime is subject to both federal and tribal jurisdiction when the victim and perpetrator are Indian. A jury found him guilty and Denezpi received a sentence of 30 years in prison.

Denezpi appealed, arguingthe Fifth Amendment prohibited his re-prosecution for the same offense.

A federal district court judge decided it did not, given that tribes derive their prosecutorialpower separately from any delegation by the federal government. The U.S. Court of Appeals for the 10th Circuit upheld Denezpi's conviction last year, also rejecting his claim that the tribal court gained its jurisdiction from the federal government, rather than its status as a sovereignentity.

Congress established CFR courts to give tribes jurisdiction over American Indians where tribal courts have not been established. Tribes have both created and stepped back fromtheir tribal courts over the years.

In writing for the three-member appeals panel, Senior Judge Stephanie Kulp Seymour referenced the Supreme Court's 1978 finding that Indian nations' power to punish tribal members who violate tribal law has never been taken away, and always stemmed from their sovereignty.

"Congresss creation of CFR courts, then, did not divest the tribes of their self-governing power," she wrote in the panel's opinion.

The case raises the issue of "dual sovereignty," a doctrine that allows for two sovereign entities to both prosecute a crime that is against their laws, regardless of double jeopardy protections. Denezpi claimed that CFR courts are hybrids, operating as tribal courts in areas where there are none, but are also arms of the federal government.

"Because the CFR courts function, at least in part, as a 'federal agency,' the the Double Jeopardy clause prohibits a second prosecution by another federal agency, in this case the Department of Justice," his petition argued.

The government waived its right to respond to Denezpi's petition, but the Supreme Court subsequently requested that the U.S. Departmentof Justice weigh in.

The case is Denezpi v. United States.

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Man convicted of sex crime on Colo. tribal reservation appeals to SCOTUS - coloradopolitics.com

On July 13, 2021, the U.S. Court of Appeals for the Federal Circuit (CAFC) released its opinion reversing the U.S. Court of International Trades (CIT) decision that President Trump had unlawfully doubled tariffs on imports of steel from Turkey under Section 232 of the Trade Expansion Act of 1962 (Section 232). The CIT had initially found that such action was beyond the Presidents authority as it was taken outside the timeframe set forth in Section 232. Our prior blog post discussing Section 232 cases at the CIT, including that decision, can be found here.

In Transpacific Steel LLC v. U.S., the CAFC found that the increase in Section 232 tariffs on Turkish steel was permissible because the initial proclamation imposing tariffs on steel imports had allowed for future adjustments. According to the CAFC, under the statute, the President can take a continuing course of action which allows later modification, including the increase of import restrictions. The CAFC concluded that the CITs narrow reading of the statute obstructs the statutory purpose of Section 232, and would impede the Presidents ability to effectively address the national security issues raised by the Department of Commerce. The CAFC also reversed the CITs finding that the tariff increase had violated equal protection rights under the Fifth Amendment. One member of the CAFC panel, Judge Reyna, dissented, arguing that the CIT correctly found that the President exceeded his authority under Section 232.

While this decision concerned a temporary increase in 232 tariffs with respect to imports of steel from Turkey, its impact could be much broader, in that the Biden Administration may rely on this decision to adjust any of the Section 232 duties on steel and aluminum imports more freely. Currently, it is unclear what President Bidens next steps with regard to these Section 232 tariffs will be, and now, he may have a freer hand in modifying these tariff levels to effectuate broader trade and industrial policies.

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Federal Circuit Reverses CIT's Decision on the President's Ability to Modify Section 232 Tariffs - Lexology