Hypos for Shaffer v. Heitner
class
Hypo 1. Suppose Sarah Kidder is the producer of a theatrical production who wants to cast a French citizen in a play; it will take too much time to get an entertainer visa so the producer encourages the French actor to come to the U.S. on a tourist visa and to act in the play in violation of the terms of the visa.
The producer, the
play, and the actor are all in
The producer
licenses movie rights to a Hollywood studio, though she has never been to CA.
All negotiations and all financial transactions occur in
The U.S. Attorney in LA commences civil forfeiture under 8 U.S.C. § 1324 proceedings against the movie assets—the screenplay, the video shot so far, the set, and the scenery.
Is this constitutional?
8
U.S.C. § 1324
(1)(A) Any person who--
(i) knowing that a person is an alien, brings to . . . the
(ii) knowing
or in reckless disregard of the fact that an alien has come to . . . the United
States in violation of law, transports, or moves such alien within the United
States . . .;
(iii) knowing
or in reckless disregard of the fact that an alien has come to . . . the United States in violation of law,
conceals, harbors, or shields from detection . . . such alien in any place,
including any building or any means of transportation;
(iv) encourages . . . an alien to come to . . . the United States, knowing or in reckless
disregard of the fact that such coming to will be in violation of law; or
* * *
(b)
Seizure and forfeiture
Any conveyance, including any vessel, vehicle, or aircraft, that has been or is being used in the commission of a violation of subsection (a) of this section, the gross proceeds of such violation, and any property traceable to such conveyance or proceeds, shall be seized and subject to forfeiture.
Seizures and forfeitures under this subsection shall be governed by the provisions of chapter 46 of Title 18, relating to civil forfeitures . . ..
18 U.S.C. § 981(b)(2)
Seizures pursuant to this section shall be made pursuant to a
warrant obtained in the same manner as provided for a search warrant under the
Federal Rules of Criminal Procedure, except that a seizure may be made without
a warrant if--
(A) a complaint for forfeiture has been filed in the United States district court and the court issued an arrest warrant in rem pursuant to the Supplemental Rules for Certain Admiralty and Maritime Claims;
(B) there is probable cause to believe that the property is subject to forfeiture and--
(i) the seizure is made pursuant to a lawful arrest or search; or
(ii) another exception to the Fourth Amendment warrant requirement would apply; or
(C) the property was lawfully seized by a State or local law enforcement agency and transferred to a Federal agency.
Federal
Rules of Civil Procedure
SUPPLEMENTAL RULES FOR CERTAIN
ADMIRALTY AND MARITIME CLAIMS >
Rule
C. - Actions in Rem: Special Provisions
An action in rem may be brought:
(a) To enforce any maritime lien;
(b) Whenever a statute of the
Except as otherwise provided by law a party
who may proceed in rem may also, or in the
alternative, proceed in personam against any person
who may be liable.
* * *.
In an action in rem the complaint must:
(a) be verified;
(b) describe with
reasonable particularity the property that is the subject of the action; and
(c) state that the
property is within the district or will be within the district while the action
is pending.
(3) Judicial Authorization and Process.
(a) Arrest Warrant.
(i) The court must review the complaint and
any supporting papers. If the conditions for an in rem action appear to exist,
the court must issue an order directing the clerk to issue a warrant for the
arrest of the vessel or other property that is the subject of the action.
(ii) If the plaintiff or the plaintiff’s
attorney certifies that exigent circumstances make court review impracticable,
the clerk must promptly issue a summons and a warrant for the arrest of the
vessel or other property that is the subject of the action. The plaintiff has
the burden in any post-arrest hearing under Rule E(4)(f)
to show that exigent circumstances existed.
(b) Service.
(i) If the property that is the subject of
the action is a vessel or tangible property on board a vessel, the warrant and
any supplemental process must be delivered to the marshal for service.
* * *
(c) Deposit in
Court.
If the property that is the subject of the
action consists in whole or in part of freight, the proceeds of property sold,
or other intangible property, the clerk must issue - in addition to the warrant
- a summons directing any person controlling the property to show cause why it
should not be deposited in court to abide the judgment.
* * *
No notice other than execution of process
is required when the property that is the subject of the action has been
released under Rule E(5).
If the property is not released within 10 days after execution, the plaintiff
must promptly - or within the time that the court allows - give public notice
of the action and arrest in a newspaper designated by court order and having
general circulation in the district, but publication may be terminated if the
property is released before publication is completed. The notice must specify
the time under Rule C(6)
to file a statement of interest in or right against the seized property and to
answer. . . ..
(see U.S. Marshal procedures)
Hypo 2 – understand
what’s out, what’s in
Ms Morataya has a Beech Sundowner; she lives in
IL, never been to PA
She loans it to Mr. Marraso, who flies it
into Butter Valley airport near Quakertown PA
Mr. Barrios claims she converted it; it’s his airplane; files quiet
title action; attaches airplane
Juris over Morataya?
--she told him to go to
--she told him to go to MO to pick up golf clubs
Hypo 3
Marataya buys a condo in Butter Valley; never been there
Foreclosure action
Hypo 4 – testing
constitutionality of IL fraudulent debtor’s attachment statute, q.v.
1. Ms Greggio romised
to participate in study group
2. She
does not; graduates; moves to Cuba, to advise Raul Castro on transition
3. Mr.
Bucharo sues for br/K
(fraud) in the Circuit Court of Cook County, IL
4. Gets
writ of attachment v. CK for diploma, transcript, bar-letter
5. Meet
standards of statute?
6. Constitutional
per Shaffer v. Heitner?
7. Constitutional
per cases for first day of class?
8. [add, to make in rem] replevin and attach email with attached
outline of PJ from CP.
Hypo 5 – same as 4,
but moves to CA to advise Arnold Swarzeneger
Hypo 6: Facts of
AGS v. Carroll, or failure to secure door in GA, sucked out in TN
Whose law? Prefer
Attach aircraft at ORD
PJ in IL?
DL?
Air taxi operator—first trip to ORD
Hypo 7 –(facts of AZ Western Union case, posted on Web)
Greek manager of Athens office of Roundabout Advertising, an
IL corporation, commits fraud, embezzles; deposits money in Eighteenth Second
Bank in CHI, which has only one office
Roundabout obtains a writ of attachment over the bank account
Constitutional?
Hypo 8-FP&SJ but no contacts
Auto dealer in
1. Burden
on dft- low; hop on North Line train in
2. Interests
of forum state- high
3. Ptf’s interest in obtaining relief- WI has cap on ds
4. Interstate
judicial system interest in most efficient resolution-all the evidence is in IL
5. Shared
interest of several states in furthering fundamental substantive social
policies-WI ds cap is discredited; Gov just got
elected and legislature with him campaigning to repeal it