March 5, 2014 United States Supreme Court opinions

Rosemond v United States

Rosemond was charged with violating 18 USC 924(c) by participating in a drug deal where a firearm was discharged. The district court instructed the jury that Rosemond could be convicted if they found Rosemond knew of the use of the firearm by a cohort and his knowing active participation in the drug deal. The jury convicted Rosemond and the 10th Circuit affirmed. Resolving a circuit split on what if any knowledge about the use of a firearm must be proved in a 924(c) case, the Court, with two justices dissenting in part, reversed. The Court held that proof of minimal active participation in the drug offense was sufficient to trigger aiding and abetting liability. However, the majority held that the government must prove that the aider and abettor had knowledge of a cohort’s use of a firearm at a time when the aider could realistically opt out of the drug offense so that the aider can form the intent to participate in the armed drug deal not just a drug deal. As the jury instructions erroneously omitted this timing requirement, the case was remanded to consider other arguments made by the government. The partial dissent argued that the majority approach changed normal rules on intent by confusing motive with intent and placed a burden on the government that should be borne by the defense as the defendant’s thought and feelings are within the particular knowledge of the defendant.

BG Group, LLC v Republic of Argentina

BG and Argentina arbitrated a claim by BG that certain actions Argentina took during an economic crisis violated an investment treaty between Argentina and the United Kingdom. The arbitrators excused BG’s failure to file suit and awarded damages to BG. The award was confirmed by eh district court, but, the DC Circuit reversed holding the requirement to file suit issue was for the courts, not the arbitrator to decide and that failure to file suit barred the arbitration. The Court, with one justice concurring in part and 2 dissenters, reversed. The majority held that under normal contract interpretive principals, procedural questions, like the pre-arbitration suit filing requirement here, are for the arbitrator to decide and that treaties being contacts between nations should be interpreted the same way. The majority held that the mere presence of “consent” in the treaty did not change things and in any event the treaty language clearly makes arbitration available in a different part of the text. Applying deferential review to the arbitration award, the majority held that the decision drew form the text of the treaty and thus must be affirmed. The concurrence argued that the “consent’ discussion is dicta and probably wrong to boot as the presence of “consent” in a treaty may be dispositive on the issue. The dissent argued that the pre-arbitration provision was not procedural but rather the only way for BG to enter into a contract of arbitration with Argentina. Thus, court review de novo is the correct rule not deferential review of the arbitration reward.

Lozano v Montoya Alvarez

Montoya removed the parties child form the United Kingdom and came to the United States. Lozano petitioned for return of the child under the Hague Convention more than one year after the child was removed. The district court concluded the child was now settled and denied the petition. The 2nd Circuit affirmed holding that the one year period where a petition for return must be granted is not subject to equitable tolling. The Court, resolving a circuit spit as to the equitable tolling issue, reversed with three justices adding a concurrence. The Court held that unlike statutes of limitation in the federal system, there was no background policy of allowing tolling for treaties. Instead, the issue is one of determining the intent of the countries involved. Here, there was no evidence that the nations who signed the treaty intended to allow equitable tolling and in any event the one year provision was not a statute of limitation as relief can still be granted and the acts of concealment can defeat a claim that the child is settled. The concurrence argued that even when a  child is “settled’ under the treaty, courts retain equitable power to return based on a consideration of all relevant factors as set out in Article 18 of the treaty.

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