JURIST - Paper Chase: Saturday, August 13, 2011

[JURIST] Mexico's National Human Rights Commission [official website, in Spanish] on Friday released a report [text, PDF, in Spanish] contending that military and law enforcement officials routinely conduct illegal searches in their efforts to combat the country's narcotics trade. The report describes a "systematic pattern" of coercive, threatening and physically abusive behavior, often accompanied by property damage, theft and evidence tampering. Documented complaints of human rights violations allegedly committed by authorities rose from 234 in 2006 to 964 in 2008, the same year a law was enacted easing requirements for search warrants. Per the report's projections, such complaints are expected to surpass 1,000 by the close of this year.

Following the April resignation [JURIST report] of former Mexican Attorney General Arturo Chavez, the Attorney General's Office (PGR) [official website] last month charged [JURIST report] 111 officials who served under Chavez with various corruption-related offenses, including falsifying documents, interfering with the administration of justice, abuse of power, perjury and bribery. Additionally, 140 police officers were fired and it was disclosed that 280 more are under investigation. Mexico has struggled to combat the drug cartels' influence on the government and the country as a whole. There have been more than 27,000 drug-related deaths [STRATFOR report] since 2006, and the violence has steadily escalated over the past few years. In April 2009, Mexico's Senate passed a constitutional amendment [JURIST report] permitting the seizure of suspected drug traffickers' property prior to their conviction. In 2008, a former assistant attorney general was arrested for receiving bribes, and Mexico's prosecutor's office admitted that it had been infiltrated [JURIST reports] by the drug cartels.

[JURIST] Chinese authorities in Beijing on Friday began the trial against Wang Lihong, one of the dozens of human rights activists the government detained earlier this year as part of a crackdown on dissidents in the country. Wang is charged with one count of creating a disturbance [AFP report] for allegedly utilizing the Internet to attempt organizing anti-government demonstrations during the recent period of similar unrest in Middle Eastern and African countries. Her supporters contend that the offense of "creating a disturbance" is purposefully ambiguous, and that it is frequently levied against vocal government opponents. Wang was arrested in April, shortly before the anniversary of the peaceful Tiananmen Square [BBC backgrounder] protests of June 1989. In the months prior to the occasion, the government arrested at least 48 individuals in what rights group Chinese Human Rights Defenders (CHRD) [advocacy website] described [press release] as the "most severe repression of dissent and activism since the post-Tiananmen crackdown." A contingent of several international diplomats, including representatives from the United States and European Union, sought to attend the proceedings but were denied entry. If convicted, Wang faces a maximum of five years incarceration.

China's human rights record has been widely criticized. The US Department of State [official website] in June urged [JURIST report] the Chinese government to release protesters arrested for their Tiananmen Square involvement and account for those missing or killed during the suppression. The State Department also urged China to protect universal human rights afforded to peaceful dissenters, and to release those that had been detained or placed under house arrest in the months prior. In May, the UN Working Group on Arbitrary Detention [official website] called for the immediate release of Chinese rights activist and Nobel Laureate Liu Xiaobo [BBC profile; JURIST news archive]. Liu, awarded the 2010 Nobel Peace Prize in absentia, is currently serving an 11-year prison term [JURIST reports] after being convicted on charges of subversion in a trial that lasted only two hours and was closed to foreign diplomats. China has also been criticized for jailing human rights attorney Gao Zhisheng [advocacy website; JURIST news archive]. The Working Group on Arbitrary Detention called on the Chinese government [JURIST report] in March to free Gao, claiming his detention violates international law.

[JURIST] A federal appeals court on Friday upheld [opinion, PDF] the conviction of ex-Merrill Lynch [corporate website] executive James Brown stemming from his role in the Enron fraud scandal [JUIRST news archive]. Brown was indicted on five counts in 2003 stemming from a 1999 transaction in which Merrill took a $28 million equity interest in a facility of barge-mounted power generators on the Nigerian coast along with Enron. The transaction, in which Merrill paid Enron $7 million and loaned $21 million more was ultimately exposed as a "sham sale" designed only to "allow Enron to artificially enhance its fourth-quarter earnings to meet forecasts." Brown served as the director in charge of Merrill's Strategic Asset and Lease Finance group at the time. With three of the charges dropped [JURIST report], Brown was convicted [JURIST report], along with three other former Merrill executives, in 2004 on charges of perjury and obstruction of justice. Brown challenged his convictions on the grounds that the government violated his right to due process by "withholding materially favorable evidence that it possessed pre-trial," specifically a set of FBI notes from an interview of Enron CFO Andrew Fastow, Senate investigators' notes from an interview with Enron Treasurer Jeff McMahon and transcripts of testimony delivered by Merrill Lynch Chief Counsel Katherine Zrike delivered to a grand jury and the Securities and Exchange Commission (SEC) [official website]. The court held that the evidence in question was not material and thus, under Brady v. Maryland [opinion], insufficient to overturn Brown's conviction:

Brown points to the divided panel in Brown I to argue that the case against him was relatively weak. It is true that the panel was divided on Brown's guilt, but that division was over whether a legally unenforceable oral promise could establish Brown's guilt, not whether there was an oral promise at all [as documented in the undisclosed FBI evidence]. . . . The alleged Brady evidence in this appeal only addresses the latter issue . . . It thus does not call the majority's holding in Brown I into question, and we have no authority to relitigate the issue that divided the panel. In short, the district court did not commit reversible error in holding that the Brady items, taken together, did not create a reasonable probability of a different outcome.

The Fifth Circuit overturned fraud and conspiracy convictions [opinion, PDF; JURIST report] against Brown in 2006 "on the legal ground that the government's theory of fraud relating to the deprivation of honest services — one of three theories of fraud charged in the Indictment — is flawed." Enron CEO Jeffrey Skilling [JURIST news archive] was also absolved of fraud charges when the Supreme Court's interpreted the "honest service" doctrine [18 USC § 1346] narrowly in Skilling v. United States [Cornell II backgrounder; JURIST report]. Although the Court's ruling [text, PDF] did not overturn the rule as unconstitutionally vague, it limited its application only to instances of bribery and kickbacks.

[JURIST] A federal judge for the US District Court for the District of Wyoming [official website] on Friday struck down a set of administrative rules advanced by the Obama administration last year that placed stricter limits on environmental impact requirements of oil and gas drilling operations. Judge Nancy Freudenthal ruled that administrative memos restricting categorical exemptions [US DOT backgrounder] to environmental impact restrictions under the Energy Policy Act of 2005 [text, PDF] represented an undue burden on energy companies by delaying drilling operations and adding to their cost. The Western Energy Alliance (WEA) [advocacy website] filed suit [complaint, PDF] against the US Bureau of Land Management (BLM) [official website], the National Forest Service (NFS) [official website] and Secretary of the Interior Ken Salazar [official biography] last October. The government argued unsuccessfully that the harms complained of were merely speculative, and Judge Freudenthal agreed with WEA's arguments that the rules were promulgated in violation of the Administrative Procedure Act [materials] and inconsistent with the plain language mandate of the 2005 Act.

The BLM issued an administrative memorandum [text] in March 2010 restricting the scope of those exceptions, allowing exceptions under § 390 of the 2005 Act only where a site or operation is within close physical proximity to a previous one, where a site is subject to a National Environmental Policy Act (NEPA) [materials]-sanctioned land plan, and where the operator completes additional reporting requirements. The NFS followed suit with its own memo [text, PDF] to the same effect in June. The ruling removes the 2010 restrictions, reinstating the Bush administration-era regime of expedited oil and gas drilling provisions under which provides categorical exceptions for all oil and gas drilling operations on federal land where a minimal degree of environmental disturbance is expected or where wells are subsequently tapped after an impact survey was performed at the first drilling.