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 New York.

The producer licenses movie rights to a Hollywood studio, though she has never been to CA. All negotiations and all financial transactions occur in New York. The studio sought out the producer.

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 United States . . . such person at a place other than a designated port of entry . . .;

(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

(1) In general

 

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.

 

(2) Applicable procedures

 

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

(1) When Available.

An action in rem may be brought:

(a) To enforce any maritime lien;

(b) Whenever a statute of the United States provides for a maritime action in rem or a proceeding analogous thereto.

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.

* * *.

(2) Complaint.

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.

* * *

(4) Notice.

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 Butter Valley to pick up golf clubs

--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 Madison County IL (3d Judicial Circuit Court) CS=Edwardsville

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 Kenosha: sells to local, who sells to Buffalo Grove ptf; front wheel falls off on Edens, account mfg defect; dealer never been outside Kenosha county; WWV says no min contacts thus no juris in IL

1.      Burden on dft- low; hop on North Line train in Kenosha

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