The D.C. Circuit releases opinions on Tuesdays and Fridays. We read them all so you don’t have to. On Tuesday (July 3), the court issued five opinions:
EIG Energy Fund XIV v. Petroleo Brasileiro. In an opinion by Judge Henderson (joined by Judge Wilkins) the court pierced sovereign immunity for Brazil’s state-owned oil company, Petrobas, which had induced a $221 million investment from a U.S. company for a corrupt oil-drilling scheme. The corruption was eventually uncovered and prosecuted by Brazilian authorities, leaving U.S. investors “with nothing but worthless shares.” Because Petrobas targeted U.S. investment, intentionally concealed the corruption, and caused the loss suffered by Americans, Henderson reasoned it could get hailed into a U.S. court under the “commercial activity exception” to sovereign immunity. Judge Sentelle dissented, relying on Merriam Webster’s Dictionary to argue that the effects in the U.S. were not “direct” enough to grant jurisdiction.
U.S. v. Franklin Torres. Torres was accused of engaging in sexual activity with a 16-year-old and taking nude photos of him. A jury convicted him of sexually abusing a minor and child pornography charges. In an opinion by Judge Pillard (joined by Judge Griffith), the court upheld the convictions. Pillard said the jury had enough evidence of Torres’s purpose in taking the photos to find him guilty of a federal statute relating to the production of child pornography. She also said a leading question to the key witness at trial did not taint the sex-abuse conviction. Judge Williams dissented on the pornography conviction because he did not believe there was enough evidence to prove the statute’s requirement that the purpose of the sexual conduct was the production of pornography.
Republic of Argentina v. AWG Group Ltd. Griffith (joined by Henderson and Williams) affirmed an enforcement award under the Federal Arbitration Act against the Republic of Argentina for $20 million. Argentina said the award should not stand because one of the arbitrators was partial to the other side—namely, she was a board member of UBS who was a passive investor in two of the companies involved in the arbitration. But as the panel noted, courts are loathe to interfere with arbitration awards. Challengers have a “steep slope to climb,” and here, Argentina couldn’t make the summit.
U.S. v. Carlos Aguiar. In an opinion by Judge Rogers (joined by Judge Srinivasan), the court split the baby on two challenges by a convicted armed robber who claimed he received ineffective assistance of counsel. The court denied one challenge because Aguiar could not show that closing the courtroom during jury selection caused his trial to be significantly different or that the jury selection was fundamentally unfair. But the court remanded the case to the district court with orders to hold an evidentiary hearing on Aguiar’s other challenge, which involved whether his attorney properly explained the government’s plea offer. Griffith dissented on the second holding because he saw “no abuse of discretion to forego an evidentiary hearing” in the first place.
Ho-Chunk, Inc. v. Jeff Sessions. Federal investigators wanted to inspect business records of four tobacco companies, all located on a Native American reservation in Nebraska and incorporated under the tribe’s laws. The companies said they are not subject to a record-keeping law meant to combat contraband cigarettes. The court, in an opinion by Judge Randolph (joined by Rogers and Pillard), disagreed. The panel took a puff of a perennial question: are corporations people? For the purposes of this statute, which imposes record-keeping requirements on any “person” selling large amounts of cigarettes, the answer is yes.
