Panel Upsets Rakoff Ruling in Citigroup/SEC Settlement in SEC v. Citigroup Global Markets

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by Soma Sengupta

Soma Sengupta

The U.S. Court of Appeals for the Second Circuit has vacated Judge Jed Rakoff’s refusal to approve a settlement between the Securities and Exchange Commission and Citigroup of Nov. 28, 2011. A three-judge panel said that Judge Rakoff applied the wrong standard in blocking a consent decree between the SEC and Citigroup Global Markets over mortgage-backed securities.

The SEC alleged that Citigroup had misrepresented its role and influence in a billion-dollar fund collateralized by subprime securities that were tied to an imploding housing market. Citigroup was alleged to have misled investors that the fund portfolio was selected by an independent investment advisor and that fund investors suffered millions of dollars in losses while Citigroup reaped some $160 million in profits short selling the very same investments.

Judge Rakoff criticized the consent decree as the latest in a series of cases where the SEC alleged serious securities fraud for which the defendant admitted no wrongdoing and

questioned why culpable individuals were not held responsible, rather than Citigroup and its shareholders paying the penalty. He said the decree was “neither fair, nor reasonable, nor adequate, nor in the public interest.”

The SEC petitioned the Second Circuit for a writ of mandamus ordering Judge Rakoff to approve the settlement. A motions panel of Judges Rosemary Pooler, John Walker and Pierre Leval stayed Judge Rakoff’s ruling on March 15, 2012, finding that there was a likelihood the parties would succeed on the merits, and appointed John Wing, partner at Lankler, Siffert & Wohl, as pro bono counsel to argue Rakoff’s position.

Writing for the court Wednesday, Judge Pooler quoted language from the U.S. Supreme Court decision of eBay,Inc. v. Merc Exchange, 547 U.S. 388 (2006) saying “Today we clarify that the proper standard for reviewing a proposed consent judgment involving an enforcement agency requires the district court to determine whether the proposed consent decree is fair and reasonable, with the additional requirement that the ‘public interest would not be disserved’”. “Adequacy”, as required by Judge Rakoff was “particularly inapt in the context of a proposed S.E.C. consent decree.” On remand, Judge Rakoff was told that while inquiry of the parties was permissible in assessing the “fairness” and “reasonableness” of a consent decree, “[t]he primary focus of the inquiry, however, should be on ensuring the consent decree was procedurally proper, using objective measures … taking care not to infringe on the S.E.C. discretionary authority to settle on a particular set of terms.”

“It is an abuse of discretion to require, as the district court did here, that the S.E.C. establish the “truth” of the allegations against a settling party as a condition for approving the consent decrees,” Pooler said.

Oral argument was heard at the circuit on Feb. 8, 2013, with Deputy General Counsel Michael Conley of the S.E.C. representing the commission and Brad Karp, a partner with Paul, Weiss, Rifkind, Wharton & Garrison for Citigroup. The ruling was by Judges Pooler, Raymond Lohier and Susan Carney.


Martinez v Illinois: No “functional approach” to Double Jeopardy


by Soma Sengupta

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Without full briefing and oral argument, the Supreme Court in Martinez v Illinois, summarily struck down an Illinois Supreme Court ruling that Martinez had never been put “in jeopardy” when charges were dismissed after a jury was impaneled.

Esteban Martinez was indicted in 2006 for “aggravated battery and mob action” against Avery Binion and Demarco Scott, two Elgin residents. The case was repeatedly put off but was slated for trial in July 2009. But the prosecution sought several delays, saying it could not find Binion and Scott and that they were necessary witnesses. The trial judge was exasperated, commenting that the two complaining witnesses were “convicted felons…well known in Elgin.”

Finally the trial judge said it was time for this case to proceed or be dismissed, issued warrants for Binion and Scott, and set the trial for May 17, 2010. On that day, the prosecution stated that it could not find Binion and Scott. Insisting on starting, the judge was then notified by the prosecution that it would not take any part in the trial.

The jury was sworn in, and the judge ordered the prosecution to make its case. The prosecutor refused to do so. Given repeated opportunities to call witnesses, the prosecution each time said it would not participate. Martinez thereafter moved for a directed verdict of not guilty since the prosecution was offering no argument and presenting no evidence against him. The judge granted the motion, and Martinez was cleared of both charges.

The prosecution appealed, and first a middle-level appeals court and then the Illinois Supreme Court ruled that Martinez had never been put “in jeopardy” because the prosecution never put on a case against him. Illinois’ high court ruled that “rigid, mechanical rules” should not determine whether the Double Jeopardy Clause is violated. The Illinois Supreme Court held that since the state was not participating in the case, Martinez was “never at risk of conviction.” Thus Martinez was never in jeopardy the first time and so would not suffer double jeopardy by a new trial.

The Supreme Court, rejected the Illinois Supreme Court’s opinion that courts should follow a functional approach to determine how far into the prosecution a defendant must go before he is in jeopardy of a conviction unanimously struck down this ruling saying that the Illinois Supreme Court had “manifestly erred” in allowing the state to appeal, because Martinez had been ruled not guilty by the trial judge. In the per curiam opinion, it remarked “[t]here are few if any rules of criminal procedure clearer than the rule that jeopardy attaches when the jury is empaneled and sworn.” Moreover, the opinion noted it was similarly clear that, once Martinez had been acquitted by the trial judge, he could not be subjected to retrial. That is “perhaps the most fundamental rule in the history of double jeopardy jurisprudence.”

The Court also noted that, rather than going through the jury selection process, Illinois could have sought dismissal and re-charged if it found Binion and Smith. Once the jury was sworn in, there was no going back.


IQ and the Death Penalty: No rigid rule of 70, the Supreme Court holds in Hall v Florida

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by Soma Sengupta

Soma Sengupta

“Florida law defines intellectual disability to require an IQ test score of 70 or less. If, from test scores, a prisoner is deemed to have an IQ above 70, all further exploration of intellectual disability is foreclosed. This rigid rule, the Court now holds, creates an unacceptable risk that persons with intellectual disability will be executed, and thus is unconstitutional.” Thus spoke the 5-4 majority in an opinion by Justice Kennedy in ruling that the states cannot use a fixed IQ score of 70 as the measure of incapacity to be put to death. “Intellectual incapacity,” the Court said, “is a condition, not a number.”

But the ruling was not an expansive proscription of a rigid rule regarding IQ scores. While states cannot make an IQ test score above 70 permission for an individual’s execution, the Court said that it was not ruling on whether a state could set the fixed score at 75 or above and use that alone as the measure. The rule the Court applied in Mr. Hall’s case is this: if the individual claiming intellectual incapacity has an IQ score between 70 and 75, then that individual’s lawyers must be allowed to offer additional evidence of intellectual deficit, including, most importantly, the inability to learn basic skills and adapt reactions to changing circumstances. Mr. Hall’s case before the Supreme Court proceeded on an assumption that Florida had used a score of 71 to find him eligible to be executed under its above-70 rule.

The ruling did not rule out states’ use of IQ test scores as part of the analysis of whether an individual had sufficient intellectual functioning to qualify for the death sentence. But any use of such scores must always take into account the “inherent” imprecision of such scores.

Mr. Hall was sentenced to die for the 1978 murder of a pregnant housewife. He was convicted of abducting her from a store parking lot in Leesburg, Florida and with another man, then sexually assaulting and killing her. After that, the two men went to rob a convenience store in a neighboring county and shot and killed a deputy sheriff who had responded.

Justice Samuel A. Alito, Jr., wrote the dissent, joined by Chief Justice John G. Roberts, Jr., and Justices Antonin Scalia and Clarence Thomas.   The dissenting opinion said that, for the first time, the Court had actually abandoned its former reliance in judging eligibility for the death sentence on the consensus among the states and had turned over the issue largely to the practice of psychiatric medicine and, in particular, to private medical associations to determine a constitutional rule.

Justice Alito Halts Execution of Russell Bucklew


by Soma Sengupta 

Soma Sengupta

The U.S. Supreme Court has halted the execution of Russell Bucklew, who had been scheduled to be put to death at 12:01am Wednesday for the 1996 killing of a man during a violent crime spree. Justice Samuel Alito had blocked the execution an hour before the scheduled execution while the full court considered the matter. A unanimous Supreme Court then sent the case back to the St. Louis-based 8th U.S. Circuit Court of Appeals for reconsideration. Mr. Bucklew would have been the first inmate put to death since the botched execution in Oklahoma on April 29, Clayton Lockett’s vein collapsed and he writhed on the gurney before eventually dying of a heart attack more than 40 minutes after the start of a procedure that typically takes about 10 minutes to complete. Mr. Bucklew, who suffers from a rare congenital condition—cavernous hemangioma—that causes weakened and malformed blood vessels, as well as tumors in his nose and throat, argued that his condition and the secrecy surrounding Missouri’s lethal-injection drug combine to make for an unacceptably high risk that the execution would be excruciating, in violation of the Constitutional protection against cruel and unusual punishment. Since European companies opposed to capital punishment cut off supplies of certain execution drugs, Missouri and other states have turned to U.S. sources. The states refuse to identify these sources saying secrecy is necessary to protect them from possible retaliation by death-penalty opponents.

Matter of State of New York v John S.

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by Soma Sengupta

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The majority of a divided Court of Appeals found that basis hearsay of expert testimony based on indictment and a guilty plea later vacated on the ground of mental incapacity to plead met minimum due process requirements for an Article 10 hearing.

In 1968, John S. pleaded guilty to rape and robbery in the first degree, in satisfaction of multiple charges arising from a series of attacks on women committed around City College in Manhattan. The United States District Court for the Southern District of New York vacated the convictions, determining that the convictions were invalid because John S. was incompetent when he pleaded guilty in September 1968 and Supreme Court never afforded him an adequate colloquy regarding the voluntariness of his plea. The Second Circuit affirmed and John S. was released on parole in August 1978.

28 days after he was released from parole, John S. committed a violent rape and was convicted after trial of rape in the first degree. He was sentenced to an indeterminate term of 72 months to 20 years imprisonment and was released on parole in 1992. He then pleaded guilty in 1996 to rape in the first degree and was sentenced to 12 ½ years imprisonment. Prior to his release from custody, the Attorney General filed a petition under N.Y. Mental Hyg. Law 10 seeking a determination that John S. was a detained sex offender requiring civil management. The petition included a written evaluation report prepared by a licensed psychologist and psychiatric examiner employed by the New York Office of Mental Health (OMH) which stated that as a result of her personal examination of respondent and her review of available records describing his background and criminal history, she concluded that John S. currently suffers from antisocial personality disorder which constitutes a “mental abnormality” that predisposes him to the commission of sexual offenses and makes it difficult for him to control such behavior. John S. moved in limine & oral argument to preclude expert testimony relating to both the 1968 charges and an uncharged rape he allegedly committed in 1978, which was included in the expert’s report. Supreme Court denied the motion. After a trial, the jury returned a verdict finding that John S. suffered from a mental abnormality qualifying him for civil management under article 10. Supreme Court subsequently ordered John S. committed to a secure treatment facility.

The Court of Appeals affirmed, holding (1) basis hearsay related to John S.’ 1968 indictments for rape and robbery met minimum due process requirements and was properly admitted at trial; and (2) basis hearsay about Respondent’s uncharged rape was unreliable and should have been excluded, but its admission was harmless error. The Court noted that “[r]espondent was never acquitted of the 1968 charges and the evidence underlying the indictments which a grand jury found was legally sufficient to establish every element of the charged offenses and provided reasonable cause to believe that respondent committed them has never been called into question” and “[h]is convictions were later vacated, but that occurred because he was mentally incompetent at the time of his plea.”. The Court declined to extend the holding of People v Mingo, that “hearsay information found in presentence reports is inherently reliable for purposes of determining the appropriate risk level of a sex offender under the Sex Offender Registration Act (SORA)” to Article 10 proceedings. It held that “hearsay related to uncharged crimes must be excluded if its only basis for reliability is that it came from a presentence report” because “[w]e believe this rule is most appropriate for article 10 proceedings, where the liberty interests at stake are greater than in SORA proceedings and the factfinders are often not judges but juries *** who have no specialized knowledge of the “origins and function” of presentence reports”.

Judge Rivera wrote the dissent, in which Chief Judge Lippman and Judge Smith concurred. Judge Smith added the following: “I add a few words to express my disappointment that John S. has not argued that a civil commitment under Mental Hygiene Law article 10 may not be based solely on a diagnosis of antisocial personality disorder. That seems to me a strong argument, for reasons I have previously explained (see Matter of State of New York v Shannon S., 20 NY3d 99, 110 [2012] [Smith, J., dissenting] ["If a diagnosis of ASPD could support civil commitment, the State could have locked up half of those now in prison without bothering with the complexities of the criminal law"]).”

Robers v. United States- “Any part of the property … returned” refers to the property the banks lost

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by Soma Sengupta

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Question: Does a defendant who has fraudulently obtained a loan and thus owes restitution for the loan under the Mandatory Victims Restitution Act (MVRA) return “any part “ of the loan money by surrendering title to a house that has fallen under foreclosure?

Answer: No. The word “property” in the MVRA refers to the money lent by the banks, not to the houses the banks received as collateral for the fraudulent loans. The district court properly calculated the restitution amount because the property (money) was not returned to the banks until the date on which the homes were actually sold.

Benjamin Robers participated in a mortgage fraud scheme in which his role was to pose as a legitimate buyer of houses, make fraudulent loan applications by misrepresenting his income and his intention to live in the house and repay the mortgage, then allow the loan to default by not paying it. Two houses were obtained via this scheme. The banks foreclosed on the houses and sold them to pay back the lenders.

Prior to indictment, Robers pled guilty to one count of conspiracy to commit wire fraud. The funds for the fraudulent loans were disbursed electronically (wired) by lenders. A federal district court sentenced Robers to three years of probation and ordered him to pay restitution pursuant to the Mandatory Victims Restitution Act (MVRA, 18 U.S.C. 3663A–3664) in the amount of $218,952.18 for both incidents. The MVRA requires property crime offenders to pay “an amount equal to … the value of the property” less “the value (as of the date the property is returned) of any part of the property that is returned.” Robers’ restitution amount was calculated by finding the difference between each loan and the resale amount of each house that was foreclosed (the offset value). Robers appealed the restitution award and argued that the wrong offset value was used in the calculation; instead, the fair market price at the time of foreclosure should have been used. The U.S. Court of Appeals for the Seventh Circuit unanimously affirmed, as did the Supreme Court. “Any part of the property … returned” refers to the property the banks lost: the money lent to Robers, not to the collateral the banks received. Because valuing money is easier than valuing other property, this “natural reading” facilitates the statute’s administration. For purposes of the statute’s proximate-cause requirement, normal market fluctuations do not break the causal chain between the fraud and losses incurred by the victim. Even assuming that the return of collateral compensates lenders for their losses under state mortgage law, the issue here is whether the statutory provision, which does not purport to track state mortgage law, requires that collateral received be valued at the time the victim received it.

Justice Stephen G. Breyer delivered the opinion of the unanimous Court.

Justice Sonia Sotomayor wrote a concurring opinion, in which Justice Ruth Bader Ginsburg joined, that the Court’s ruling applied only to cases where the victim intended to sell the collateral but encountered a reasonable delay in doing so. In other cases, a defendant might be able to show that a victim intended to hold onto the collateral as an investment rather than reduce it to cash right away and should consequently bear the loss of any decline in value.


Court of Appeals Expands Right to Counsel for DWI Arrestees in New York

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by Soma Sengupta

In People v. Washington, 2014 N.Y. Slip Op. 00065 (Ct. App. N.Y. May 6, 2014), the Court of Appeals suppressed the results of a chemical test to determine an arrestee’s blood alcohol content (BAC) that was obtained with the consent of the arrestee after a lawyer hired by the arrestee’s family contacted police and asked that no BAC test be performed. The police did not inform her, and the arrestee did not know of the telephonic intervention at the time of the BAC test. In a 4-3 decision, the Court held that a right to counsel relating to BAC tests attaches in driving while intoxicated (DWI) arrests when an attorney contacts police on behalf of the arrestee, even without the knowledge of the arrestee.

The decision in Washington expands the Court’s earlier decision in People v. Gursey, 22 N.Y.2d 224 (1968), which held that an arrestee in a DWI case had a limited, statutory right to consult a lawyer before submitting to a BAC test. Under Gursey, the right to counsel regarding BAC tests attaches only when the arrestee personally asks to consult a lawyer. Under Washington, the right to counsel regarding BAC tests now attaches when a lawyer contacts police on behalf of the arrestee–even without the arrestee’s knowledge–and requests that a BAC test not be performed. Thus, the right to counsel regarding BAC tests has been expanded to the point that a lawyer can initiate that right to counsel on behalf of the arrestee without the arrestee ever having personally invoked that right.

Judge Graffeo wrote the opinion, in which Chief Judge Lippman and Judges Piggott and Rivera concur. Judge Read wrote the dissent, in which Judges Smith and Abdus-Salaam concur.

In Issues of First Impression, the 2nd Circuit holds Morrison bars “Listing” and “Foreign Squared” Claims.

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by Soma Sengupta

In City of Pontiac v. UBS AG, the U.S. Court of Appeals for the Second Circuit issued a decision clarifying the applicability of the anti-fraud provisions of the Securities Exchange Act of 1934 to transactions in foreign securities, holding that the Act does not apply to purchasers of a foreign issuer’s shares on a foreign exchange, even if those shares were also cross-listed on a United States exchange, and even if the purchasers on the foreign exchange were U.S. residents who had placed their buy orders in the United States.

UBS is the latest decision construing the Supreme Court’s landmark ruling in Morrison v. National Australia Bank and continues the trend of limiting the Act’s applicability to domestic transactions.

Morrison and Absolute Activist

Prior to Morrison, decided in June 2010, most courts had analyzed the Act’s extraterritorial application under the “conduct/effects test.” The “conduct test” considered whether the defendant’s conduct in the United States was significant enough to have been more than merely preparatory to the alleged fraud and to have directly caused non-U.S. investors’ losses. The “effects test” considered the alleged fraud’s effects on U.S. markets or investors.

In June 2010, the Supreme Court in Morrison rejected the conduct/effects test in favor of a “bright-line” rule that § 10(b) of the Act applies only to “transactions in securities listed on domestic exchanges, and domestic transactions in other securities.”  Explaining the rule, the Court stated “no one thought that the Act was intended to regulate foreign securities exchanges—or indeed even believed that . . . Congress had the power to do so.”

In 2012, in Absolute Activist Value Master Fund Ltd. v. Ficeto, the 2nd Circuit construed the second prong of the Morrison test- “domestic transactions in other securities.”  The Court held that, “to sufficiently allege the existence of a ‘domestic transaction in other securities,’ plaintiffs must allege facts indicating that irrevocable liability was incurred or that title was transferred within the United States.”  That irrevocable liability was incurred in the United States could be demonstrated by pleading facts showing that “the purchaser incurred irrevocable liability within the United States to take and pay for a security, or that the seller incurred irrevocable liability within the United States to deliver a security.”


The UBS case was filed in the U.S. under the Act by plaintiffs who had purchased shares of UBS – a Swiss corporation – on one or more non-U.S. exchanges.  Relying on Morrison’s holding that U.S. securities laws apply “in connection with the purchase or sale of a security listed on an American stock exchange, and the purchase or sale of any other security in the United States” the plaintiffs in UBS contended that U.S. securities laws apply to (i) transactions in any security dually listed on both a U.S. and non-U.S. exchange, even when the transaction itself occurred on the non-U.S. exchange (the “listing theory”); and (ii) non-U.S. securities transactions in dually listed securities that were initiated by a U.S. entity in the U.S. (the “foreign squared theory”).

In its decision of what it called “a matter of first impression, whether the bar on extraterritorial application of the United States securities laws, as set forth in Morrison v. National Australia Bank Ltd., 561 U.S. 247 (2010), precludes claims arising out of foreign‐issued securities purchased on foreign exchanges, but cross‐listed on a domestic exchange”, the 2nd Circuit rejected the “listing theory,” reasoning that Morrison “evinces a concern with the location of the securities transaction and not the location of an exchange where the security may be dually listed” (emphasis in original).

OPEB, a U.S. entity that had purchased UBS shares on a foreign exchange by placing a buy order in the U.S. that was later executed on a Swiss exchange additionally invoked Morrison’s second prong – “purchase . . . of [a] security in the United States” – and contended that, under the Absolute Activist test, it had incurred “irrevocable liability” in the U.S. by placing its buy order in this country.  The Court considered, again “as an issue of first impression” “whether the mere placement of a buy order in the United States for the purchase of foreign securities on a foreign exchange is sufficient to allege that a purchaser incurred irrevocable liability in the United States, such that the U.S. securities laws govern the purchase of those securities.”  The court concluded that the placement of “a buy order in the United States that was then executed on a foreign exchange, standing alone,” does not establish that the plaintiff “incurred irrevocable liability in the United States”.  That OPEB was a U.S. entity was immaterial – “the fact that OPEB was a U.S. entity, does not affect whether the transaction was foreign or domestic”.


Morrison was decided on a basic principle of statutory construction- the “longstanding principle of American law `that legislation of Congress, unless a contrary intent appears, is meant to apply only within the territorial jurisdiction of the United States.”  In rejecting the “listing theory”, the 2nd  circuit has clarified that, at least within the 2nd Circuit, some contact within the U.S. will not confer jurisdiction if the transaction occurs abroad.  In rejecting the “foreign squared theory”, it has clarified that effect on a U.S. entity “standing alone” will likewise not confer jurisdiction.  There are the implication on § 10(b) litigation- that although an argument that the placement of a buy order in the U.S. is enough – on its own – to constitute a domestic transaction is clearly foreclosed,   the court’s use of the words “mere placement of a buy order” and “standing alone” could lead to further litigation about whether other factors – in addition to the location of the buy order – could collectively constitute a domestic transaction under Morrison‘s second prong.  But the implications of these holdings are not limited to construction of § 10(b).  As noted in Morrison, “we apply the presumption in all cases”.

Soy Poached Chicken

by Soma Sengupta

aromatic soy poached chicken aromatic soy poached chicken liquoraromatic soy poached chicken whole

For the aromatic soy poaching liquor;

1 cup of light soy

1/2 cup of dark soy

6 cups of water

1/2 cup of rock sugar

1 cup of Chinese cooking wine

2 inch knob of ginger, sliced into 1/8 inch batons

3 garlic cloves

1 spring onion (white part only)

1 cassia bark or cinnamon stick

2 star anise

1 tsp of Sichuan peppercorns


1 whole chicken (2 ½ to 3 lbs)


Sesame oil

Cooking oil


Marinate chicken with soy and aromatics for 20 minutes.


Remove the chicken.  Prepare the poaching liquor by simmering everything else in a pot for 30 minutes.  The pot should be large enough to subsequently hold the chicken.


Place chicken breast side down and bring the liquor back to a simmer.  Cover and simmer on the lowest heat for 30 minutes. Turn the chicken over half way through the cooking.


Remove chicken and brush some sesame oil over the bird.  Cover loosely and let rest for at least 15 minute before carving. You can strain and keep the cooking liquor for other uses if you wish.


To serve, carve chicken in pieces and arrange on platter.  Ladle some cooking liquor over the pieces.  Scatter julienned spring onion.  Pour 1/3 cup heated cooking oil over the dish.



aromatic soy poached chicken liquor  aromatic soy poached chicken whole

The On-Again, Off-Again Indictment of Devyani Khobragade by the US Attorney. Why?

by Soma Sengupta

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The pillars of the Devyani Khobragade saga are by now well-known.  She was arrested by federal agents in New York in December 2013.  On January 9, a federal grand jury indicted her on one count of visa fraud and one count of making false statements.  Ms. Khobragade filed a motion to dismiss the charges, claiming she was “cloaked in diplomatic immunity at the time of her arrest,” according to court documents.  On Monday March 10, 2013, Judge Shira Sheindlin dismissed the charges, finding that Ms. Khobragade was “appointed a Counselor to the Permanent Mission of India to the United Nations, a position that cloaked her with full diplomatic immunity”.   Ms. Khobragade was appointed to that position on January 8, 2013, one day before her first indictment.  On Wednesday March 12, 2013, Ms. Khobragade was again indicted on the same charges and a warrant was issued for her arrest.

The indictment of Ms. Khobragade is replete with patronizing references towards Ms. Richard, who is referred to throughout as “Victim”.  According to the indictment, Ms. Richard went to Ms. Khobragade’s residence for an interview for a position of housekeeper and child-carer.  This was followed by a second interview, to which Ms. Richard was accompanied by her husband.  Negotiations for salary took place, and Ms. Richard successfully increased the initial offer of Rs. 20,000 per month to Rs. 30,000 per month.  A visa application was then submitted for Ms. Richard to the US Embassy in India.  Ms. Richard appeared for interview at the Embassy, but was told that an employment contract was required for the interview.  She was not accompanied by Ms. Khobragade to this interview.  Ms. Richard subsequently returned for another interview, this time with an employment contract.  Again, she was not accompanied by Ms. Khobragade.  According to the indictment, Ms. Richard and Ms. Khobragade prepared for the second interview together, after which Ms. Richard substantiated the terms of the employment contract at her interview.  The indictment goes on to state that Ms. Richard and Ms. Khobragade then executed a second employment contract reflecting their negotiated terms, which differed from the contract submitted in support of Ms. Richard’s visa application, or, as the indictment states,  “[u]pon arriving at the Khobragade India Residence, KHOBRAGADE told the Victim that the Victim needed to sign another employment contract (the “True Employment Contract”), which contained the terms that the Victim and KHOBRAGADE had verbally agreed to in October 2012.”  The “fake contract” provided for a 40-hour workweek at $9.75 per hour and paid sick leave, holidays and overtime.  The “true contract” contained none of these provisions.  Ms. Richard signed the “true contract” before leaving India, not while she was within the apparently hostile clutches of the Khobragade household.

According to the indictment, “[p]rior to the Victim’s commencement of her employment for KHOBRAGADE, the Victim had provided KHOBRAGADE with the Victim’s personal passport. KHOBRAGADE never returned the Victim’s passport.”  This assertion defies reason.  According to the indictment, Ms. Richard “provided KHOBRAGADE” with her passport while still in India, so that her visa application could be made.  It is difficult to see how she then managed to travel to the U.S. and pass border control if “KHOBRAGADE never returned the Victim’s passport”.

The indictment then dramatically asserts that “[o]n or about November 15, 2012, and as a direct result of KHOBRAGADE’s fraud, including her creation of the Fake Employment Contract, the Victim received an A-3 visa.”  The “Victim’s” participation in the fraud is not mentioned.

According to the indictment Ms. Khobragade “did not want to pay the Victim the required wages under U.S. law or provide the Victim with other protections against exploitative work conditions mandated by U.S. law”.  But apparently, Ms. Richard also freely accepted employment on these terms.  The “true contract” accurately reflected her negotiated terms, while she was on home turf, and fortified by the presence of her husband.  Obviously, the U.S. has its own laws which it can enforce.  But the characterization of Ms. Richard as “Victim” in the context of her salary or her interactions with the U.S. Embassy seems curiously strained.

The indictment continues, stating “[a]t KHOBRAGADE’s request and direction, this fraudulent employment agreement was submitted to the U.S. Embassy in India in connection with the Victim’s visa application on November  14, 2012.”  Another way to represent this might be that Ms. Richard executed a “fraudulent employment agreement” with Ms. Khobragade which she submitted in support of her visa application during an interview she attended without Ms. Khobragade.  As the indictment then notes, “[t]he Victim then obtained a visa on the basis of the fraudulent employment agreement.”

The indictment states that Ms. Richard was required to work long hours with limited time off and that “KHOBRAGADE denied her requests” to resign.  But Ms. Khobragade is not charged with violation of labor laws.  She is charged with visa fraud.

Eventually, Ms. Richard left the Khorbagade residence and sought assistance from Safe Horizon, which provides legal representation on immigration matters.  Ms. Richard has been granted “continued presence,” a legal status given to those co-operating with authorities.   Ms. Richard’s family, allegedly with the assistance of these authorities, has joined her in New York.  Subsequently, Ms. Khobragade filed charges of for fraud, willful deceit, harassment and extortion against Ms. Richard and her husband in India.

The tale of Ms. Richard and Ms. Khobragade illustrates the severely distasteful aspects of domestic employment in India, which continue despite the economic boom India has experienced in recent years.  Live-in “housekeepers” earn about Rs. 9,000 a month, while live-in cleaners earn Rs. 5,000-7,000.  They sleep on thin roll-out mattresses on the floor.  They are never off-duty, except for a sporadic hour or so.  Against this scenario, Ms. Richard negotiated a salary of Rs. 30,000 per month.  While the conditions that force the need that drives a person to accept employment for inhumanly long hours for ridiculously low pay is unspeakably deplorable, to Ms. Richard, the salary she negotiated might well have appeared princely.  She made the difficult decision to leave her home and family in order to obtain this salary.  It sits ill for the U.S. Attorney to belittle her efforts by denying her the dignity of her name and refer to her simply as “Victim”.  It sits ill for the U.S. Attorney to imply that she was incapable of making these choices in her best interests.  The conclusion that she fully and voluntarily participated in the conduct for which Ms. Khobragade now faces charges is almost inescapable.  It sits ill for the U.S. Attorney to characterize a woman capable of successfully negotiating an Embassy interview as a witless dupe.

India is a country of deal-makers.  Buying food involves negotiations, as does buying anything else.  Traffic tickets are often dismissed sua sponte by police officers after the expected haggling.  Obtaining housing, utilities, permits require the art of offer and counter-offer.  Deal-making is considered the necessary lubrication of the wheels of bureaucracy.  “Burdensome” laws are often considered merely obstacles to overcome.  The individual knows best, it is said with a shrug, and the agreement between individuals is given informal supremacy.  Against this cultural backdrop, Ms. Richard and Ms. Khorbagade struck a deal that suited both, and participated in the means to effectuate that deal.   Ms. Richard received a salary almost 400% higher than she could otherwise expect.  Ms. Khobragade received labor at a rate vastly lower than American rates.  When the deal ceased to work for Ms. Richard, she left, apparently without difficulty.  She apparently had the freedom to move in and out of the Khobragade residence.  Why, with so many egregious violations of labor laws in New York that go uninvestigated, with the many large-scale immigration frauds, is the U.S. Attorney expending its resources on two charges of “visa fraud” in which the “Victim” obviously freely participated?  And how is Ms. Richard the “Victim” of visa fraud?

“Real Housewives” stars plead guilty, lawyer reads statement of “mistakes”.

by Soma Sengupta


“The Real Housewives of New Jersey” stars Teresa and Joe Giudice appeared in federal court in Newark, New Jersey, this morning to plead guilty to 4 charges including bankruptcy fraud and mail fraud in their respective cases.  Mr. Giudice also pled guilty to an additional charge of failure to file a tax return.

The couple had been charged with a 39-count indictment in July 2013.  Two more charges were added in November 2013.  The most serious count, conspiracy to commit mail and wire fraud, would have carried a maximum sentence of 20 years in prison and a $250,000 fine.

Ms. Giudice faces a possible sentence of up to 27 months in prison and agreed to pay a fine of $200,000.  Mr. Giudice, who admitted avoiding income taxes on nearly $1 million between 2004 and 2008, faces a possible sentence of up to 46 months imprisonment.  The couple will also face forfeitures, to be imposed at sentencing.

At the conclusion of any prison term Mr. Giudice serves, he will face a deportation hearing that will “likely result in … your being removed from the United States,” said Federal Judge Esther Salas in accepting the pleas.  Mr. Giudice is an Italian citizen.

Today’s proceedings only focused on the federal charges filed by the U.S. Department of Justice. Mr. Giudice still faces New Jersey state charges.

At a press conference after the hearing, the couple’s attorneys, Henry E. Klingeman said that the plea agreement was in the best interest of their four children.  He read a statement from Mrs. Giudice which said:  “Today, I took responsibility for a series of mistakes I made several years ago.  I have said throughout that I respect the legal process and thus I intend to address the court directly at sentencing.  I will describe the choices I made, continue to take responsibility for my decisions, and express my remorse to Judge Salas and the public.  I am heartbroken that this is affecting my family — especially my four young daughters, who mean more to me than anything in the world. Beyond this, I do not intend to speak specifically about the case outside of court, at the recommendation of my attorney and out of deference to the government and our legal system.”

“The Real Housewives of New Jersey” is currently filming its sixth season and the Giudices plan to continue their involvement with the show.

Judge Salas set sentencing for July 8, 2014.

Verdict in Florida Loud Music Killing Case-No Murder, Lawyer argued Self-Defense

By Soma Sengupta

basketball player

In a case that raised the specter of the George Zimmerman trial for killing Trayvon Martin, a jury in Jacksonville, Florida has found Michael David Dunn guilty on four charges, including three for attempted second-degree murder and one charge of shooting a deadly missile.  But after thirty-one hours after deliberations over two days, it could not agree on first-degree murder in the death of 17-year old Jordan Davis, or any lesser included offenses.  A mistrial was declared on that charge.

On November 23, 2012, Dunn pulled into a gas station in Jacksonville, parking next to a red SUV with 4 teenagers inside.  Dunn testified that he expressed his displeasure at the loud music to the teenagers and asked them to lower the volume.  Dunn claimed that he saw four inches of a gun barrel and subsequently opened fire in self-defense, killing Davis.  No weapon, other than Dunn’s, was found.  Dunn, who has a concealed weapons permit, fired 10 shots, hitting the vehicle nine times.

Dunn will be sentenced on March 24.

Shrimp Malai

by Soma Sengupta

shrimp malai

Is it time to warm up?  Snow everywhere, bitter winds, wet feet.  Don’t go out!  Make this awesome Shrimp Malai & stay in.  This dish was made for weather like this.  Its aromatic, complex, rich & if you want, spicy enough to warm you through.

As with almost all of my dishes, there are very few ingredients and its really quick & easy to prepare.

If you’ve never shopped at an Indian food store, this is your chance.  There are tons in Jersey City or Jackson Heights that are easily accessible by subway.  There are fruit & vegetables of amazing quality & price, as well as spices, lentils, Indian breads & snacks, etc. Fair warning: you might become addicted to these shops.


3 tablespoons of oil

Five Cardamom pods

Six Cloves

Two or Three sticks of Cinnamon

1 ½ to 2 pounds large shrimp, peeled & de-veined

2 table spoon of ginger paste (puree ginger in a liquefier or blender, adding as little water by teasponfulls if necessary)

Seven or Eight Green Chili, 7 if medium, 8 if small

1 teaspoon of turmeric powder

Chili powder to taste (you can make it as hot or mild as you want, but this dish is better with some heat. I suggest you add at least 1 tsp.  But if you cannot stand heat, you need not)

2 cans of coconut milk

1 tablespoon water

1 generous teaspoon sugar

Salt to taste



Heat oil in a sauté pan.  The pan must be at least 3 inches deep.

When oil is starting to smoke, add the cloves, cardamom and cinnamon and fry over medium heat, just until aromas are released.  This should take about 3-4 minutes.  Do not let the cardamom color.

Add shrimp. Allow to fry for 2 or 3 minutes, then turn the shrimp over and fry for another 2 minutes.

Add ginger paste, turmeric powder and chili powder and sauté for 1 minute.  Then add the green chilis, followed by the coconut milk and about a tablespoon of water. Add the teaspoon of sugar and salt to taste.

Boil hard for 4 to five minutes.

You’re done.  Serve with basmati rice & enjoy!

NY Appellate Division Holds That Claims for Breach of RMBS Representations and Warranties Acrue on Issuance.

by Soma Sengupta

law contract

In ACE Securities Corp. v. DB Structured Products, Inc., No.650980/12 (N.Y. App. Div. 1st Dep’t Dec. 19, 2013), the First Department ruled that claims for breach of contract claims alleging breaches of representations and warranties made in connection with residential mortgage-backed securities (RMBS) accrue when the representations and warranties are made, instead of when a defendant refuses to comply with a plaintiff’s demand for a contractual remedy.  These representations and warranties are typically made when the securitization closes, which is when the Court held that the six-year contract statute of limitations begins to run.  The four-judge panel unanimously reversed a May decision by New York State Supreme Court Justice Shirley Werner Kornreich, who had ruled that the six-year period began when DB failed to timely cure or repurchase defective loans in the pool.

DB Structured Products sold mortgage loans to an RMBS trust.  Contractual representations and warranties about the loans were made when the securitization closed.   Ace asserted that the representations and warranties as to certain of the loans were false, and that therefore, the defendant was required to repurchase those loans—the sole remedy under the contract.

Ace argued that the claims “did not accrue until defendant either failed to timely cure or repurchase a defective mortgage loan” under the remedy provisions of the contract.  Justice Kornreich, in her May ruling stated that if a six-year statute of limitations began to run at closing, the contracts, which included “specific deadlines for the demand and cure period and involve loans with a 30-year term,” could have specified that the repurchase demands could only be made within that time frame.  The First Department rejected this holding, stating that Kornreich “erred in finding that plaintiff’s claims did not accrue until defendant either failed to timely cure or repurchase a defective mortgage loan. To the contrary, the claims accrued on the closing date” of the loan purchase agreement, “March 28, 2006, when any breach of the representations and warranties contained therein occurred.”

The First Department also ruled that the trustee could not rely on the fact that individual RMBS certificate holders had sued before the limitations period expired.   First, the Court held that the investors’ suit was “a nullity” because the investors had sued before the contractual cure or repurchase period had elapsed, and the running of that period was a “condition precedent to commencing suit”.  Second, the Court held the investors were not authorized to file the suit on behalf of the trust under the contracts. The contracts required the investors to notify the trustee of defaults by the servicer or master servicer for the loans, not the sponsor and under the principle of Walnut Place LLC v. Countrywide Home Loans, Inc., the investors “lacked standing to commence the action on behalf of the trust”.

New York’s statute of limitations plays a vital role in allowing parties to order their affairs predictably through private contracts.  Justice Kornreich refused to read a condition regarding remedy into a contract silent on the issue and held for the investors.  The First Department also refused to read in an absent condition and held for Deutsche Bank.  In the silence, Justice Kornreich  found the breach occurred when DB refused to afford Ace the contractually agreed buy-back remedy.  In the silence, the First Department found that the breach occurred when DB made alleged misrepresentations.  Ace plans to appeal this ruling.  The desired predictability may be absent for some time.

9th Circuit extends heightened scrutiny to discrimination based on sexual orientation

by Soma Sengupta

law library2

The 9th Circuit became the first federal appeals court in the nation to rule that discrimination based on sexual orientation is subject to heightened scrutiny.   The ruling came in SmithKline Beecham Corp. v Abbott Laboratories  where the three-judge panel of the U.S. 9th Circuit Court of Appeals unanimously reversed and remanded the antitrust case, concluding that Abbott Laboratories had decided to strike a juror because he was gay.  The lawsuit was brought by SmithKline Beecham over a licensing agreement relating to HIV medication.  Abbott used a peremptory challenge during the 2011 trial to strike a man who had revealed that he had a male partner and friends with HIV.  Writing for the panel, Judge Stephen Reinhardt wrote:

“This appeal’s central question is whether equal protection prohibits discrimination based on sexual orientation in jury selection. We must first decide whether classifications based on sexual orientation are subject to a standard higher than rational basis review. We hold that such classifications are subject to heightened scrutiny. We also hold that equal protection prohibits peremptory strikes based on sexual orientation and remand for a new trial.”

The ruling expanded the protections of a 1986 Supreme Court ruling, Batson v. KentuckyBatson barred peremptory challenges based on race. The prohibition was later extended to gender.

The decision has implications beyond jury selection.   Thus far, equal protection claims based on sexual orientation have been judged under the rational basis standard, the lowest level of review.  Under this holding, a higher standard now applies.  Judge Reinhardt wrote “[w]e must first decide whether classifications based on sexual orientation are subject to a standard higher than rational basis review.”  There is no language in the opinion limiting classification to the juror context.

A challenge to Nevada’s marriage law is already pending in the 9th Circuit, and marriage bans are being fought in trial courts in Oregon, Idaho and Arizona.  Those laws will now be reviewed with heightened scrutiny.

Abbott could ask a larger panel of the 9th Circuit to reconsider the case and even take it to the Supreme Court.  But for now, discrimination based on based on sexual orientation will be subject to heightened scrutiny in the 9th Circuit.

Two reversals in two months for prosecutorial misconduct during summations


By Soma Sengupta

On December 18, 2013, the Appellate Division, Second Department reversed and ordered a new trial  in People v Naasir Mehmood, “on the law and as a matter of discretion in the interest of justice”.  Mr. Mehmood was convicted of a course of sexual conduct against a child in the first and second degrees, criminal sexual act in the second degree, and two counts of endangering the welfare of a child.  Mr. Mehmood raised several grounds on appeal:  sufficiency of the evidence, improper bolstering, and ineffective assistance of counsel, among others.  These claims were found to be without merit, and with the exception of ineffective assistance, unpreserved.  However, reversal was granted because “the cumulative effect of the prosecutor’s improper comments during summation requires a new trial”.  Moreover, the Court reviewed this claim under its interest of justice jurisdiction, finding the claim unpreserved.

On November 8, 2013, the Appellate Division, Fourth Department dismissed two counts for insufficiency and granted a new trial on the remaining counts in People v Richard Morgan.  This was the second reversal in this case.  The first reversal was granted on Batson grounds, but the Court nevertheless noted “our strong disapproval of the misconduct of the prosecutor on summation in improperly shifting the burden of proof onto defendant and in improperly vouching for the credibility of the People’s witnesses”.  The new trial granted in November, 2013 was granted on the basis of prosecutorial misconduct during summation, with the Court noting that reversal was warranted “particularly in light of our previous admonition to the People in this matter”.

Defense counsel often make tactical decisions to eschew objections during the prosecution’s summations.  Some fear that such objections might alienate the fact-finder.  Perhaps these decisions suggest reconsideration of that tactic.


Two reversals in two months for prosecutorial misconduct during summations

By Soma Sengupta


On December 18, 2013, the Appellate Division, Second Department reversed and ordered a new trial  in People v Naasir Mehmood, “on the law and as a matter of discretion in the interest of justice”.  Mr. Mehmood was convicted of a course of sexual conduct against a child in the first and second degrees, criminal sexual act in the second degree, and two counts of endangering the welfare of a child.  Mr. Mehmood raised several grounds on appeal:  sufficiency of the evidence, improper bolstering, and ineffective assistance of counsel, among others.  These claims were found to be without merit, and with the exception of ineffective assistance, unpreserved.  However, reversal was granted because “the cumulative effect of the prosecutor’s improper comments during summation requires a new trial”.  Moreover, the Court reviewed this claim under its interest of justice jurisdiction, finding the claim unpreserved.

On November 8, 2013, the Appellate Division, Fourth Department dismissed two counts for insufficiency and granted a new trial on the remaining counts in People v Richard Morgan.  This was the second reversal in this case.  The first reversal was granted on Batson grounds, but the Court nevertheless noted “our strong disapproval of the misconduct of the prosecutor on summation in improperly shifting the burden of proof onto defendant and in improperly vouching for the credibility of the People’s witnesses”.  The new trial granted in November, 2013 was granted on the basis of prosecutorial misconduct during summation, with the Court noting that reversal was warranted “particularly in light of our previous admonition to the People in this matter”.

Defense counsel often make tactical decisions to eschew objections during the prosecution’s summations.  Some fear that such objections might alienate the fact-finder.  Perhaps these decisions suggest reconsideration of that tactic.

Pots de Chocolat

By Soma Sengupta

pots de chocoat

Pots de Chocolat!  Creamy, smooth, extra-rich!  Irresistible.

This is quick and easy to prepare.  But make it several hours before serving: it must be refrigerated for several hours. Yes, only 2 tablespoons of sugar is right.


2 cups light cream

4 ounces semisweet chocolate

6 egg yolks, large or extra-large

2 tablespoons granulated sugar

Pinch of salt

1 1/2 teaspoon vanilla extract

1 cup whipping cream, for topping


Adjust rack in center of oven and preheat oven to 325 degrees F.

Place 1 1/2 cups cream in small, heavy saucepan over low heat. Place remaining 1/2 cup cream and chocolate in top of a large double boiler over hot water on moderate heat. In a mixing bowl, stir yolks lightly just to mix — do not beat until foamy.

Scald the cream, stir in sugar and salt and remove from heat. Stir chocolate mixture with a small wire whisk until perfectly smooth. Off heat, add hot cream to chocolate very gradually, stirring constantly to keep smooth. Gradually stir chocolate mixture into yolks and stir in vanilla.

Return mixture to top of double boiler over hot water on low heat and cook, stirring constantly with rubber spatula for 3 minutes. Strain through a fine strainer into a pitcher.

Pour into individual cups (custard cups, heatproof coffee cups, etc,).  Do not fill all the way. Place in a shallow baking pan and pour hot water half the depth of the cups. Cover the cups, with aluminum foil if you don’t have covers.

Bake for 22 minutes. Don’t worry, its done.  Don’t poke it with anything, it will become firmer as it chills.

Cool on a wire rack with cover removed, then refrigerate a few hours. Serve with a spoonful of sweetened whipped cream on top.

Whole Roast Chicken with Pan-Roasted Vegetables

By Soma Sengupta

roast chicken

Mmmmm!!  Comfort food at its best.  This recipe takes very little effort.  A few chops of the knife, a few minutes of chicken-attention, and it cooks itself.  And you get a tasty and nourishing dinner that beats hell out of take-out dinners.  Try it.

If you plan to make quick, easy dinners at home, I suggest you prepare & store a few items that greatly enhance the experience.  I suggest one here that can be used with this recipe: herb butter.  To make this, chop any herbs finely.  I recommend rosemary & thyme for this recipe.  THE HERBS MUST BE FINE CHOPPED!!  Mix with softened butter.  Refrigerate & use as needed.

Warning: I don’t like chickens roasted until well-done.  The time I suggest makes a moist, juicy chicken.  If you want a more roasted chicken, this recipe is not for you, but there’s plenty of other recipes on the web.

Ingredients 1 whole chicken Carrots, as many as you want, chunked Potatoes, as many as you want, cut into serving size pieces 2 or 3 onions, or more if you want, peeled & cut into 8 pieces 1 head garlic Salt & pepper, if you wish.  I don’t add any.

Method Preheat oven to 375.

Remove chicken from refrigerator & remove any covering.  Cut head & tail of the head of garlic and cut the head in half.  Cut the carrots, potatoes & onions.  Strew them in the roasting pan.  This creates a natural rack & also flavors the pan juices.  If you wish, add a few sprigs of herbs.  Place 1 of the garlic head halves in roasting pan, cut side down.

If you wish to salt & pepper the chicken, do so.  If you have any herb butter, soften a little and place some under the chicken skin, manipulating both under the skin and on top of the skin to move the butter into place.  But this will be delicious with or without.  Place the other garlic half into the cavity of the chicken.

Place chicken on top of the vegetables in the roasting pan.  Place pan in oven & roast for 12 minutes per pound.  Turn off the oven and remove chicken from oven.  DO NOT OVERCOOK !  Be ruthless.  Let the roast sit for at least 10-15 minutes.

If the vegetables, including the onions are not tender enough, microwave for a few minutes.  If you’ve never tried a roasted onion, try one now.  They’re delicious & nutritious.

Call the family to the table.   Serve chicken with the vegetables & pan juices.  The garlic is edible, & incredibly healthy.  You can serve with the chicken, or keep and eat later.


If you need legal advice, please contact a lawyer.

What was Ma’lik Richmond’s lawyer thinking?

By Soma Sengupta


Ma’lik Richmond, one of two teens convicted in August of 2012 of raping a 16-year-old girl in Steubenville, Ohio has been released from a juvenile detention facility in Ohio on Sunday.  Judge Thomas Lipps found Richmond delinquent of one count of rape and sentenced him to a minimum of one year in juvenile detention and ruled the sentence was contingent on behavior and rehabilitation progress while serving.

Richmond was given Ohio’s second-toughest sex-offender classification, requiring him to register as a sex offender every six months for 20 years after his release. Unlike adult sex offenders, his name will not be included on publicly accessible websites, and he can request to have the classification removed later based on his rehabilitation.

Richmond’s attorney, Walter Madison released the following statement on his behalf:

“Ma’Lik Richmond recently completed his designated time at the Cuyahoga Hills Juvenile Detention Facility. The past sixteen months have been extremely challenging for Ma’Lik and his extended family. At sixteen years old, Ma’Lik and his family endured hardness beyond imagination for any adult yet alone child. He has persevered the hardness and made the most of yet another unfortunate set of circumstances in his life. As with each other obstacle, Ma’Lik has met it squarely, lifted his chin, and set his shoulders; he is braced for the balance of his life.  While away, Ma’Lik has reflected, learned, matured, and grown in many ways.  He is a better, stronger person and looks forward to school, life, and spending time with family.  At this point, Ma’Lik wants most to be a high school teenager. In conjunction with his release, Ma’Lik, his family, and guardians ask that the media respect their privacy in this matter, as we all need to heal and move on with our lives. We will have you know that Ma’Lik will be taking all the time necessary to focus on his academic and personal goals. We ask for your support and prayers as we move forward, Thank you.”

In response, Robert Fitzsimmons, the attorney for the victim in the case, released this statement on her behalf:

“Although everyone hopes convicted criminals are rehabilitated, it is disheartening that this convicted rapist’s press release does not make a single reference to the victim and her family – whom he and his co-defendant scarred for life. One would expect to see the defendant publicly apologize for all the pain he caused rather than make statements about himself. Rape is about victims, not defendants. Obviously, the people writing his press release have yet to learn this important lesson.”

If an attorney accepts the responsibility to speak on behalf of his client, shouldn’t he do better than this?