April 27: Immigrant Swindler & Double Jeopardy in a Capital Case

Case: Nijhawan v. Holder

Date: Monday, April 27, 2009

Issue: Can evidence not presented at trial be used by the government against an immigrant for the purpose of kicking him out of the country?

Background: Manoj Nijhawan entered the United States in 1985 from his native India. In 2002, he and others at his New Jersey-based metal-sales company were arrested for duping banks into lending them money for bogus overseas operations. Nijhawan was convicted of conspiring to commit fraud and money laundering. He was sentenced to 3 1/2 years in prison and along with his fellow co-workers was ordered to pay $683,632,800.23 in restitution.

While Nijhawan was in prison, the Bureau of Immigration Affairs moved to have him kicked out of the country. Immigration law says anyone convicted of fraud in which the victim loses more than $10,000 is subject to removal. But the amount that was swindled never came up during the criminal trial. It was not necessary for prosecutors to determine the loss in order secure their conviction. It was only during sentencing that the staggering amount of money involved was brought to light. Nijhawan says information only gathered at trial and considered by a jury may be presented before an immigration judge. The immigration judge in his case disagreed and so has every other court that has reviewed the matter.

Case: Bobby v. Bies

Date: Monday, April 27, 2009

Issue: Does Double Jeopardy apply to an Ohio man convicted of the vicious murder of a 10 year old boy? The murderer claims an Ohio Supreme Court assessment that he has a "mild to borderline mental retardation" prevents the state from trying to refute that conclusion in its effort to secure him a date with the executioner.

Background: In 1992, 10 year old Aaron Raines was lured into an abandoned building in Cincinnati where Michael Bies and another man brutally beat the boy after he fought their attempt to rape him. An autopsy revealed the gruesome injuries the men caused and after a nine week investigation, Bies and his accomplice were arrested. A jury convicted Bies of first degree murder and a judge sentenced him to death. Ohio's Supreme Court affirmed that decision but also agreed with a clinical psychologist's determination—presented at sentencing—that Bies was mildly retarded. The court concluded that mitigation wasn't enough to keep Bies off death row.

Bies went on to seek post-conviction relief in state and federal courts and his efforts gained steam in 2002 when the U.S. Supreme Court ruled in another case that executions of the mentally retarded are unconstitutional. A federal judge ordered the issue over Bies's supposed mental retardation back to the Ohio courts. Bies immediately filed for summary judgment in his favor saying that matter had already been determined by the Ohio Supreme Court when it agreed with the psychologist's assessment that he is mentally retarded. Ohio disagreed saying the trial record left the matter unclear and that it should be able to present evidence supporting its assessment that Bies was mentally fit to be executed.

Federal courts have so far sided with Bies in concluding that another hearing to determine his mental capacity and therefore his ultimate sentence would violate his Fifth Amendment rights against Double Jeopardy. Under a legal premise known as collateral estoppel, matters of fact that have already been litigated and resolved can not be revisited. In this case, that legal issue is the Ohio Supreme Court's declaration of Bies's mental retardation. Ohio argues a new hearing to more fully determine mental fitness is appropriate and would not violate the Fifth Amendment. It argues that protection only involves individuals who were acquitted and Bies was found guilty.