Wednesday, April 6, 2005

What's Holding Up Pasquantino?

The Supreme Court heard oral arguments on the case of Pasquantino v. United States back on November 9, 2004.  And a good number of cases that were heard after this one, have been ruled on by the Court.  But it seems that there is still no decision in Pasquantino and also in Small v. United States.  Interestingly these two cases have a commonality; that being that there is an international aspect to each of these matters.  Pasquantino is a white collar case, a wire fraud case, involving the transporting of liquor between the United States and Canada.  In Pasquantino the harm suffered was to Canada, and it was premised upon a loss of tax revenue to that country.  The question accepted for review is:

Whether the federal wire fraud statute (18 U.S.C. s 1343) authorizes criminal prosecution of an alleged fraudulent scheme to avoid payment of taxes potentially owed to a foreign sovereign, given the lack of any clear statement by Congress to override the common law revenue rule, the interests of both the Legislative and executive Branches in guiding foreign affairs, and this Court's prior rulings concerning the limited scope of the term "property" as used in the wire fraud statute.

It is an issue that can go in so many directions. 1) It could be a case where the Court will focus on the wire fraud statute and its breadth and cut back on what is "property" as was done in the Cleveland case, where the Court held that licenses were not property.  2) Or it could be a case that the Court will define how far the revenue rule can extend, a relatively narrow decision in comparison to the other choices.  3) Or, finally, it could be a case where the Court focuses on extraterritoriality and whether wire fraud should apply outside the United States.   This last option could make this a landmark decision.  This decision coupled with what the Court might do in Small could make this the year that the Court tackles tough questions of transnational law.  And what better place to start than with a white collar case.

My guess is that the Court is focusing on the international issue.  It seems odd that both Small and Pasquantino have been bypassed in the Court's ruling on cases heard well after these two, and both of these cases have an international issue.  Could this be the year that the Court will finally look at whether criminal law should apply to extraterritorial cases?  The last time this was really examined is in the Bowman decision, and a lot has happened since 1922 when this decision was issued.

Pasquantino could be a simple resolution of the jurisdictional split coming from in the cases of Boots, Trapilo, and Fountain.   But as the jury stays out longer, I am beginning to think that this case may be more monumental than some may have expected it to be.

(esp)

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Tracked on Apr 11, 2005 6:45:44 AM