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Fake Bomb Charge an Overreaction
Practice Focuses | 2007/09/23 09:41
The MIT student who walked into Logan International Airport wearing a computer circuit board and wiring on her sweat shirt claimed it was harmless artwork. But to troopers who arrested her at gunpoint, it was a fake bomb. Nineteen-year-old Star Simpson was charged Friday with possessing a hoax device. Her attorney described the charge as offbase and "almost paranoid," arguing at a court hearing that she did not act in a suspicious manner and had told an airport worker that the device was art.

Authorities said they were amazed that someone would wear such a device eight months after a similar scare in Boston, and six years after two of the jets hijacked in the Sept. 11 attacks took off from Logan.

"I'm shocked and appalled that somebody would wear this type of device to an airport," said State Police Maj. Scott Pare, the airport's commanding officer.

Simpson showed "a total disregard to understand the context of the situation she is in, which is an airport of post-9/11," prosecutor Wayne Margolis said at a hearing where a not guilty plea was entered for Simpson and she was released on $750 bail. Margolis had asked for $5,000 bail.

Simpson, of Lahaina, Hawaii, was arrested Friday morning outside Terminal C, home to United Airlines, Jet Blue and other carriers.

She wore the white circuit board on her chest over a black hooded sweat shirt, Pare said at a news conference. The battery-powered rectangular device had nine flashing lights, and Simpson had Play-Doh in her hands, he said.

Two phrases that looked hand-drawn — "Socket to me" and "Course VI" — were written on the back of Simpson's sweat shirt, which authorities displayed to the media. Course VI appears to refer to Massachusetts Institute of Technology's major of electrical engineering and computer science.

"She said that it was a piece of art and she wanted to stand out on career day," Pare said. "She claims that it was just art, and that she was proud of the art and she wanted to display it."

There was a career fair at the university on Thursday, according to the university's Web site.

Simpson is the secretary of MIT's Electrical Research Society, according to her lawyer. She is a graduate of the Hawaii Preparatory Academy, a private boarding school, has won school prizes for chemistry and leadership and had received a Congressional citation for her work in robotics, said Ross Schreiber, who was appointed to represent Simpson.

He said she was not a risk to flee, cooperated with authorities and was a good student with no prior convictions. He said they would fight the charges.

"I would characterize it as almost being paranoid at this point," Schreiber said of authorities' response.

He said Simpson had gone to the airport to meet her boyfriend. "She was there for legitimate purposes," Schreiber said.

A Massachusetts Port Authority staffer manning an information booth in the terminal became suspicious when Simpson — wearing the device — approached to ask about an incoming flight, Pare said. Simpson then walked outside, and the staffer notified a nearby trooper.

The trooper, joined by others with submachine guns, confronted her in front of the terminal.

"She was immediately told to stop, to raise her hands and not to make any movement, so we could observe all her movements to see if she was trying to trip any type of device," Pare said. "Had she not followed the protocol, we might have used deadly force."

He added, "She's lucky to be in a cell as opposed to the morgue."

The terminal was not evacuated and flights were not affected, airport officials said.

Boston was the focus of a security scare Jan. 31 when dozens of battery-powered devices that featured a character making an obscene gesture with a finger were discovered in various locations. Bomb squads were deployed and some transportation links were closed temporarily. They turned out to be a promotion for the Cartoon Network. Two men were charged in that incident, but prosecutors dropped the charges after they apologized and performed community service.



How to Share Wealth Without the IRS Getting It All
Practice Focuses | 2007/09/13 01:57

Whenever something of value changes hands, the Internal Revenue Service is usually going to want its cut.


But if you plan ahead and employ tax-smart strategies, you can make sure more of your wealth goes to your nephew Steve than to Uncle Sam.

Although many people would rather share their wealth with family while they're alive, the IRS often makes this a tall task -- but not impossible.

The Gift of Gifting

The easiest way to share your wealth, of course, is by simply giving money or assets away. There is a limit, however, to how much you can give before the IRS starts taking its cut. And the tax consequences can turn a gift into a burden -- just ask the Oprah audience members who discovered they owed thousands to the IRS after the generous host gave them all cars in 2004.

This year, the inflation-adjusted annual gift tax exclusion is $12,000 per donee (there is no limit if the recipient is a spouse and a U.S. citizen). That means you can give as much as $12,000 to any individual each year without incurring taxes, and there is no limit to the number of beneficiaries.

So you can give to as many people as you want, as long as each one doesn't receive more than the annual limit. In addition to benefiting your loved ones, the added advantaged to gifting is that it also reduces your taxable estate, and thus the estate tax burden on your heirs.

The gift tax rules, however, don't apply only to cash, but to assets such as property and equities. And in some cases this may be even more advantageous than giving away just cash. Because of inflation, cash depreciates in value over time, while stocks have the ability to increase in value. Even if you give away a stock that appreciates, for tax purposes it will be taxed on its market value as of the day of transfer.
A Trustworthy Strategy

Another effective way to share your wealth while limiting your tax exposure is with a grantor retained annuity trust. A GRAT is an irrevocable trust set for a specific amount of time, during which you receive a set annual payment. At the end of the trust's term, the length of which you set, the assets in the trust are passed along to your heirs.

For example, you can create a GRAT and fund it with $500,000 that generates an annual cash flow of $50,000. Under the terms of the GRAT, you receive that annual annuity for 10 years. At the end of the term, the remainder, including any appreciation, is passed along to your beneficiary. However, once established, you can't add to the trust during its term.

Another trust useful for transferring wealth is an irrevocable life insurance trust, or ILIT. This is a trust that takes ownership of your life insurance policy and, like the GRAT, removes it from your taxable estate. On the other hand, if, for example, you have a life insurance policy that pays out $5 million and it is included in your estate, your heirs will be burdened with a hefty estate tax bill.

With a GRAT, you can not only give to your loved ones, but you can dictate the terms under which they are entitled to receive benefits. This means that if you are concerned one of your heirs is not responsible enough to handle their whole inheritance at once, you can have the trust distribute a predetermined amount of the proceeds over a specified period of time.

But it's important to remember that the terms and conditions of any irrevocable trust cannot be changed once it has been created. To learn more about choosing a life insurance provider see "How to Measure Your Life Insurer's Health."
529 and Feeling Fine

While the IRS may seem to be the bane of your financial existence, it can be of some help too. One such example is with section 529 of the Internal Revenue Code, better known as a 529 plan or qualified tuition plan.

These tax-advantaged savings plans allow you to sock away money to help pay for future college costs. While contributions to the plan are not deductible on your federal tax return, the investment grows tax-deferred and distributions to pay for the beneficiary's college costs are free of federal taxes. You can make withdrawals from the plan, however, the funds must be used for eligible expenses, such as tuition, books and housing. If they are not, you will be subject to income tax plus a 10% federal tax penalty.

Each state, and Washington, D.C., offers its own 529 plan with various investments, though you don't have to live in the state whose plan you use. You can contribute as much as $12,000 each year to the 529 plan ($24,000 for married couples), and under a special five-year averaging election, you can contribute as much $60,000 in a lump sum ($120,000 for married couples).



2nd Circuit Upholds Conviction in Rare Bird Import Case
Practice Focuses | 2007/08/28 05:15

Deciding a "rare bird" of a case, a federal appeals court last week upheld the unusual conviction of an "enigmatic and colorful" exotic bird collector for illegally importing black sparrowhawks from South Africa. Thomas W. Cullen of Goshen, N.Y., was convicted and sentenced to four months in jail under the Wild Bird Conservation Act of 1992, 16 U.S.C. §4901 et. seq. His case may have been the first criminal prosecution ever under the act.

Cullen challenged his conviction on the grounds that the act does not apply to captive-bred birds and that its failure to specifically define the term "personal pet" rendered it unconstitutionally vague.

But the 2nd U.S. Circuit Court of Appeals rejected those arguments in United States v. Cullen, 06-0607-cr.

Judges Richard Cardamone and Chester Straub, along with Southern District of New York Judge John Koeltl, sitting by designation, decided the appeal.

Writing for the court, Cardamone noted that judges frequently describe odd legal provisions or ingenious arguments as a "rare bird."

"We have before us as the subject matter literally a rara avis in terris or a rare bird of the earth," he wrote.

The court described Cullen as "an internationally known professional falconer." He was hired at one time by the City of New York to help restore bald eagles to Inwood Hill Park. Cullen once claimed to own one of the largest collections of birds of prey in the country. At the time of his trial, he maintained 47 birds of prey in Goshen.

But Cardamone added that Cullen "also has a history of questionable activity involving exotic birds."

According to the court, Cullen wanted to add the black sparrowhawk to his collection, but he did not meet the criteria for any of the four exceptions to the Act's importation ban: he had not been away from the United States for more than a year, so he did not come within the personal pet exception; he was not conducting scientific research; he was not involved in zoological breeding or display programs; and he was not engaged in cooperative breeding programs.

The government alleged Cullen used an American couple living in London, Joseph and Kristen Kulak, as a front for the importation in 1999 of three black sparrowhawks said to be the couple's personal pets.

One of the birds died in transit, and a Wildlife Service inspector at JFK Airport refused to believe Cullen's claim that he was just picking up the remaining birds for the Kulaks. The officer quarantined the birds pending an investigation.

A second bird died while in quarantine. The lone remaining bird was turned over to Cullen in 2000 with the understanding that he would return it to the Kulaks.

Instead, Cullen made a breeding arrangement with the owner of the only other black sparrowhawk in North America. That failed and the bird was returned to Cullen.

Kulak testified against Cullen, pursuant to a nonprosecution agreement, at a jury trial in 2005 before Southern District Judge Colleen McMahon. Cullen was convicted of knowingly importing exotic birds and making false statements about his activities. However, he was acquitted of illegally importing saker falcons.

WILD VERSUS CAPTIVE

At the 2nd Circuit, Cardamone addressed first Cullen's contention that Congress passed the Wild Bird Conservation Act because it was concerned about protecting birds in the wild -- not captive-bred birds.

"Yet, nothing in the language of the statute itself supports Cullen's assertion," Cardamone said. "Quite the contrary -- the statute provides that any exotic bird listed ... is covered, with no limiting language as to where or how an exotic bird is bred."

The judge added that a "Wild Bird Act provision mandating the Secretary of the Interior to exempt selected captive-bred species from the act's prohibitions on importation ... conclusively demonstrates that Congress aimed to have all other captive-bred species, like the Black Sparrowhawk, covered under the act. Otherwise, this exemption would be meaningless."

Cullen's complaint about the vagueness of the personal pet exception required the court to employ the requirement that a law must give "fair warning" to the accused of exactly what activity it prohibited.

"Although we recognize in many English words there lurk uncertainties ... to meet the fair warning prong an ounce of common sense is worth more than an 800-page dictionary," Cardamone wrote. Here, he said, the words personal and pet are "comprehensible to an ordinary person."

"The common meanings of these words, coupled with the Wild Bird Act's explicit provisions as to who qualifies for the personal pet exception, gave adequate notice to defendant that the activities he was planning did not fit within the pet exception," Cardamone said.

Peter Ginsberg of Crowell & Moring in New York represented Cullen.

"We're obviously disappointed in the circuit's opinion," Ginsberg said. "Tom has dedicated his life to protecting and expanding the bird population and if he made a technical mistake in how he obtained some birds -- and it's clear the jury did think he made mistakes -- it was certainly not out of malice or the desire to break the law."

Assistant U.S. Attorneys Jesse Furman, Stephen Ritchen and John Hillebrecht represented the government.



PETA's call in wake of Vick plea plan has merit
Practice Focuses | 2007/08/23 01:24

No matter how you feel about Michael Vick or the folks at People for the Ethical Treatment of Animals (PETA), only a drooling, spiral-eyed sadist would insist that drowning, hanging or electrocuting innocent dogs should be an unpunishable offense, let alone allowing them to rip each other to shreds for fun and profit. Guilty dogs should be included in that statement, too.

Now that Vick will cop a guilty plea in a federal dogfighting case loaded with allegations of such hideous, heartless behavior, PETA is calling for the public's assistance in demanding that the NFL add cruelty to animals "in all its forms" to the list of offenses in the league's code of personal conduct. The organization's Web site cites three prior cases -- Falcon tackle Jonathan Babineaux accused in February of beating his girlfriend's pit bull, which later died; ex-Packers/Cardinals/Giants running back LeShon Johnson found guilty in 2004 of involvement in a dogfighting ring; and former Eagles running back Thomas Hamner charged in 2001 with beating his dog.

If there's any cosmic justice for all of those poor pooches, Commissioner Roger Goodell will listen to PETA's minions. Of course, if he acts according to PETA's standards, he'll have to suspend a big chunk of the league. PETA is steadfastly against using animals for food, clothing, experimentation, entertainment or "any other purpose" and the NFL is home to more than a few players who avidly "enjoy" hunting.

Yep, hunting. Don't think that widely-accepted recreational activity is cruel? That deer or rabbit that just had a shell or arrow put into it and crawled off to bleed to death in the brush will beg to differ, as will the buffalo, boar, elk and more that are sitting ducks in enclosed areas on so-called "canned hunt" farms. And if you go by PETA's standards, fishing is a no-go, too. Think that bass enjoys that hook in the roof of its mouth while it's hauled gasping out of the drink?

I know. Get a grip, Rolfe. Personally, I've never understood what's so enjoyable about killing things. The chance to spend time in the great outdoors? Take a hike, son. For food and clothing? Unless you live in the wild, God invented supermarkets, falafel stands and fabrics just for you, Jack.

Before we go any further, I plead guilty to sitting at the groaning board each night, belching contentedly as I toss bones over my shoulder. I know that the animals I consume are raised and killed in hellish conditions. It's amazing what a little barbecue sauce can do to a man's conscience. I pass a sheep farm every day and when I think about chasing one of those cute, wooly critters around with a big ol' fork, I realize I'm just a goldplated candy ass who would be slaughtering and butchering fruits and vegetables -- exclusively -- if I had to slaughter and butcher my own meat.

I've heard the arguments that hunting helps control certain populations, such as deer, that would otherwise take a big nasty hit from disease and starvation. But whether it comes at the hands of Mother Nature or mankind, cruelty is cruelty. Is cruelty merely defined by the manner and circumstance in which pain and death are inflicted on animals?

You bet.

So, the NFL's avid hunters and fishers can rest easy, not that the league would ever bow to PETA's standards. After all, this is the ultimate meat-eater league in a sport where tales of coaches strangling a bulldog (Harvard's Percy Haughton in 1908) or having a bull castrated in front of players (Mississippi State's Jackie Sherrill in 1992) to inspire their ferocity are legendary if not always true, as in the case of Haughton. But, in the wake of the Vick case, PETA's plea deserves a sincere nod in the form of stern warnings and penalties from the NFL. The general legal definition of cruelty used by the Humane Society and state chapters of the Society For Prevention of Cruelty to Animals is a reasonable place to start: "Any act of violence or neglect against an animal, causing unnecessary and extreme pain or suffering and death."

At the very least, exactly what those acts are should be food for thought.



A grudging defense of Gonzales' inartful dodging
Practice Focuses | 2007/08/02 04:35

I find myself in an unaccustomed and unexpected position: defending Attorney General Alberto Gonzales.

Gonzales fans, if there are Gonzales fans left, except for the only fan who counts: Don't take any comfort from my assessment.

In his Senate testimony last week, Gonzales once again dissembled and misled. He was too clever by seven-eighths. He employed his signature brand of inartful dodging — linguistic evasion, poorly executed. The brutalizing he received from senators of both parties was abundantly deserved.

But I don't think he actually lied about his March 2004 hospital encounter with then-Attorney General John Ashcroft. I certainly don't think he could be charged with — much less convicted of — perjury.

Go back to December 2005, when The New York Times reported on a secret program of warrantless wiretapping. President Bush acknowledged an effort "to intercept the international communications of people with known links to al-Qaida and related terrorist organizations."

Soon, the first stories about the hospital visit appeared.

In a Jan. 1, 2006, article, the Times reported then-Deputy Attorney General James Comey's refusal to approve continuation of the surveillance program and described "an emergency visit" to Ashcroft's hospital room by Gonzales and Andrew Card, then White House counsel and chief of staff, respectively.

Similarly, Newsweek reported how the White House aides "visited Ashcroft in the hospital to appeal Comey's refusal. In pain and on medication, Ashcroft stood by his No. 2."

It was in this context — senators knew about the hospital visit well before Comey's riveting description in May — that Gonzales appeared before the Senate Judiciary Committee in February 2006.

Asked about those reports, he said that "with respect to WHAT THE PRESIDENT HAS CONFIRMED, I do not believe that these DOJ officials that you were identifying had concerns about this program." The disagreements, he said, "dealt with operational capabilities that we're not talking about today."

Flash-forward to last week, when Gonzales once again said: "The disagreement that occurred and the reason for the visit to the hospital ... was about other intelligence activities. It was not about the Terrorist Surveillance Program THAT THE PRESIDENT ANNOUNCED TO THE AMERICAN PEOPLE."

The emphasis is mine, and it matters. We know, from Comey's account, that the dispute was intense. We don't know precisely what the disagreement was about — and it makes sense that we don't know: This was a classified program, and all the officials, current and former, who have testified about it have been deliberately and appropriately vague.

In his May testimony, Comey referred only to "a particular classified program." FBI Director Robert Mueller told the House Judiciary Committee last week that the hospital-room encounter was about "an NSA program that has been much discussed."

Does this really contradict Gonzales or turn him into a perjurer? It's clear there was an argument over the warrantless wiretapping program. Comey refused to recertify it. In response, something about the program changed; Justice officials were willing to go along with the modified program.

The New York Times reported Sunday that the disagreement involved "computer searches through massive electronic databases" — not necessarily the more-limited program the president acknowledged. As the Times put it, "If the dispute chiefly involved data mining, rather than eavesdropping, Mr. Gonzales' defenders may maintain that his narrowly crafted answers, while legalistic, were technically correct."

Congress deserves better than technically correct linguistic parsing. So the bipartisan fury at Gonzales is understandable. Lawmakers are in full Howard Beale mode, mad as hell at Gonzales and not wanting to take it anymore.

But perjury is a crime that demands parsing: To be convicted, the person must have "willfully" stated a "material matter which he does not believe to be true."

The Supreme Court could have been writing about Gonzales when it ruled that "the perjury statute is not to be loosely construed, nor the statute invoked simply because a wily witness succeeds in derailing the questioner — so long as the witness speaks the literal truth" — even if the answers "were not guileless but were shrewdly calculated to evade."

Consequently, the calls by some Democrats for a special prosecutor to consider whether Gonzales committed perjury have more than a hint of maneuvering for political advantage. What else is to be gained by engaging in endless Clintonian debates about what the meaning of "program" is?

Rather, lawmakers need to concentrate on determining what the administration did — and under what claimed legal authority — that produced the hospital room showdown. They need to satisfy themselves that the administration has since been operating within the law; to see what changes might guard against a repetition of the early, apparently unlawful activities; and to determine where the foreign intelligence wiretapping statute might need fixes.

That's where Congress's focus should be — not on trying to incite a criminal prosecution that won't happen of an attorney general who should have been gone long ago.



Taking Aim at D.C.’s Gun Law
Practice Focuses | 2007/07/31 07:33
The District of Columbia has the most restrictive gun laws in the country. But that’s a distinction the nation’s capital will soon lose—if Robert Levy prevails. Levy was born in Washington, but left years ago; a resident of Naples, Fla., who made a fortune as an investment analyst, he is now a senior fellow in constitutional studies at the libertarian Cato Institute. A critic of what he sees as unnecessary government regulation, he rounded up six D.C. plaintiffs who either owned firearms or wanted to, for self-protection, and helped bankroll their challenge to the city’s gun law—which makes it illegal to own or possess an unregistered handgun (D.C. stopped registering handguns back in 1978). The city permits registered “long” guns like shotguns and rifles, but they must be disassembled or disabled with trigger locks, and it’s illegal to use a firearm of any kind in self-defense—even in the owner’s home.

The suit, which is being bankrolled by Levy, has been successful so far; in March, the U.S. Court of Appeals for the D.C. Circuit found the gun law unconstitutional. Earlier this month, D.C. officials announced plans to take the case (Parker v. District of Columbia) to the Supreme Court, in hopes of having the appeals court’s ruling overturned. If the high court agrees to hear Parker, it could finally settle one of the biggest arguments in constitutional law: whether the Second Amendment’s right to “keep and bear arms” is an individual right or was meant to apply only to members of a “well-regulated militia.” NEWSWEEK’s Daren Briscoe spoke with Levy about the suit’s prospects, and what drove him to bring it to court. Excerpts:

NEWSWEEK: Why did you file this suit?

Robert Levy:
First, because I’m a fervent believer in the Constitution, including the Second Amendment, and I read the Second Amendment as securing an individual’s right to keep and bear arms. In most jurisdictions, the courts have read the Second Amendment only to protect members of militias.  In D.C., that issue has not been resolved.  I saw an opportunity, with my two co-counsels, to vindicate Second Amendment rights and to establish a precedent that, if it reached the Supreme Court, would be applicable across the nation.

You don’t own any guns personally.  Why not?

While I believe the Constitution secures my right to own guns, as a practical matter, I don’t sense the need to do so.  I live in a safe area, a relatively affluent area, and crime isn’t a major issue where I live.  I don’t have the same need for self-defense as the six plaintiffs in the Parker case.

Why is the Second Amendment so important?

Originally it was important as a protection accorded to American citizens against a tyrannical government. But even before the Constitution was written, even before the U.S. government was formed, the right existed.  It was a means of self-defense, and today the right to bear arms protects us against predators.  It’s important to note that the Second Amendment doesn’t grant a right to bear arms.  It says the right to keep and bear arms “shall not be infringed,” meaning that it already existed.

How expansive is your view of what the Second Amendment protects?  What if I want to walk around carrying a fully automatic machine gun?

The right to keep and bear arms, like all other rights, is not absolute.  Under the First Amendment, we can’t incite other people to riot. Under the Fourth Amendment, reasonable searches are permitted.  Well, in the case of the Second Amendment, there can be reasonable regulations.  It’s quite clear that some weapons can be regulated, weapons of mass destruction, for instance.  Some persons can be regulated against bearing arms, minors for instance.  Some uses can be and are regulated.  Uses of guns in crimes, for instance.  The question is what constitutes reasonable regulation.

D.C.’s mayor, Adrian Fenty, says that the gun laws have saved countless lives by keeping guns out of the hands of those who would hurt themselves or others.  What's your response to that?

I've looked at the evidence.  I've taught regression analysis and statistical inference, so I know a little bit about how to understand what it means, and the evidence is that gun laws do not help.  Gun restrictions tend to increase violence.  So, on both a constitutional basis and as a general matter, these gun restrictions have been counterproductive.  The evidence is that more gun laws lead to increased crime and more guns lead to decreased crime.

You're paying for this case out of your own pocket.  How much has it cost you?
I have paid for the whole thing, but a good part of this case was put together on donated time on the part of the attorneys involved.  My co-counsel Clark Neily and I are working on this pro bono, and our lead counsel, Alan Gura, is working at subsistence-level wages.  But I've spent a sizable sum of money, a substantial five-figure number.




Rudy gives idea of ideal Supreme Court Justice
Practice Focuses | 2007/07/18 22:28

Rudy Giuliani pledged Wednesday to appoint Supreme Court justices in the model of conservatives Antonin Scalia and Clarence Thomas, hoping to win over anti-abortion Republicans in this key first-caucus state. But Giuliani avoided any mention of whether he would seek to overutrn the Roe v. Wade abortion rights decision -- now potentially just one justice from being repealed -- insisting he would not have a litmus test on that or any other issue.

Giuliani named those two justices, along with President George W. Bush's two picks, Chief Justice John Roberts and Justice Samuel Alito, as the kind of people he would put on the court. He said they don't try to write laws from the bench but only interpret the Constitution "in a way that will protect your rights and my rights. They will not get it into their heads that they're really legislators and they can go around changing things," Giuliani said.

Bush himself had mentioned Scalia and Thomas as his model judges during his 2000 campaign -- a move widely viewed as a way to signal conservatives that he would move the court rightward, including on Roe v. Wade.

But conservatives then knew that Bush was personally opposed to abortion. Giuliani is using a similar pledge to convince conservatives that he would look beyond his personal views in support of abortion rights in pickng justices, raising questions of whether it will be as effective an appeal.

Giuliani also defended his record of picking mostly Democratic judges as New York mayor, saying those people didn't decide constitutional issues but mainly presided over criminal cases.

Giuliani is making his first swing through heavilly Republican western Iowa today and tomorrow, seeking to convince voters he is not bypassing the state's January caucuses despite mixed signals from his campaign.



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