Case Notes – Summer 2011

Sean G. Kulkarni

Chicago-Area Businessman Found Guilty of Providing Material Support to Pakistani Terror Organization; Acquitted of Conspiracy Charges Relating to November 2008 Terrorist Attacks in Mumbai

On June 9, 2011, an Illinois federal jury convicted Chicago-area businessman and Pakistani native Tahawwur Rana of one count of conspiracy involving a terrorism plot against a Danish newspaper and one count of providing material support to Pakistan’s Lashkar e Tayyba (“Army of the Good”), a U.S.-designated foreign terrorist organization. Rana’s conviction on the two counts proved to be a mixed result for U.S. prosecutors, as jurors seemed to doubt testimony provided by the government’s key witness and ultimately acquitted Rana on charges of providing material support to Lashkar in connection with the 2008 terrorist attacks in Mumbai, India, that killed more than 160 people, including six Americans. Judge Harry D. Leinenweber presided over the case, U.S. v. Kashmiri, et. al., in the U.S. District Court for the Northern District of Illinois.

U.S. prosecutors focused their case around Rana’s association with his childhood friend and fellow Pakistani native David C. Headley (a.k.a. Daood Gilani), a U.S. citizen who performed espionage work for Lashkar and surveyed potential attack sites in Mumbai. As owner of First World Immigration Services (“First World”) in Chicago, Rana was alleged to have prepared false immigration documents to facilitate Headley’s travels. Jurors also heard testimony that Rana had approved the opening of a First World branch in Mumbai to provide cover for Headley’s espionage and surveillance activity. During his five-day testimony, Headley recounted to jurors a meeting in Chicago with Rana in which Headley disclosed his surveillance work for Lashkar and certain espionage instructions he claims to have received from Pakistan’s Inter-Services Intelligence Agency (the “ISI”). Jurors found Headley’s testimony to be sufficiently credible to find Rana guilty of providing material support to Lashkar as a general matter, but otherwise insufficient to convict Rana of providing direct material support in the Mumbai attacks.

Headley pleaded guilty in 2010 to all twelve federal terrorism charges brought by the United States in connection with his role in the Mumbai attacks and the joint plot with Rana and others to attack the offices of Morgenavisen Jyllands-Posten, the Danish newspaper whose publication of cartoon depictions of the Prophet Muhammad in September 2005 sparked a wave of protests and threats of retaliation in and from the Islamic world.

In pre-trial proceedings earlier this year, Rana had notified the Court that any role he may have played in the Mumbai attacks was conducted with “public authority” on behalf of the government of Pakistan and the ISI. Rana told the Court that by acting under the authority of the Pakistani government and the ISI — rather than at the behest of Lashkar — the Court was obligated to grant Rana immunity from criminal prosecution in the United States under the U.S. Foreign Sovereign Immunities Act (the “FSIA”). As evidence for Islamabad’s role in the attacks, Rana cited portions of Headley’s earlier grand jury testimony concerning the espionage work that Headley suggested had been ordered and supervised by ISI.

Judge Leinenweber granted the government’s motion to exclude Rana’s public authority defense, holding that neither the FSIA nor any other law cited by Rana permitted a defendant to rely upon the authority of a foreign government agency or official to authorize the defendant’s violation of U.S. federal law. In fact, Rana proffered no evidence that he relied on representations from any U.S. federal official — or any party with apparent authority as a federal official — to engage in his alleged illegal activities. In rejecting Rana’s defense, the Court further noted as a jurisdictional matter that Rana held his meetings with Headley on U.S. territory in Chicago, rather than in Pakistan or India.

Rana faces up to 30 years in federal prison as a result of his conviction on the two terrorism-related charges.
United States Court of Appeals for the Fifth Circuit Affirms Conviction of H-2B Visa Fraud Perpetrator
On March 16, 2011, the U.S. Court of Appeals for the Fifth Circuit affirmed the conviction of Bernardo Pena for his role in a scheme to profit from inducing workers from India to illegally enter the United States through the use of non-immigrant H-2B work visas. U.S. v. Pena, 2011 U.S. App. LEXIS 5357 (5th Cir. 2011).

Pena had worked for AMEB Business Group (“AMEB”), a Brownsville, Texas-based company specializing in assisting U.S.-based employers to recruit foreign temporary workers by managing the workers’ H-2B visa application process. An H-2B visa permits an alien to enter the United States for up to one year to work in nonagricultural, labor-related jobs, with the possibility of an extension of up to three years.

In April 2005, Viscardi Industrial Services (“Viscardi) hired AMEB to prepare and submit H-2B visa applications for 400 Indian and Mexican workers at a charge of $1,000 per worker, as Viscardi needed staffing assistance on various construction projects in Louisiana and Texas. AMEB contacted Mahendrakumar Patel (“Mack”) to recruit workers in India, and Mack in turn arranged for his relative, Rakesh Patel, to contact Raskesh’s brother Naimesh in India to identify particular workers who might undertake such an overseas assignment. Pena traveled to India in late 2005 to assist a group of 300 workers with the application and interview process. While the laborers awaited consular interviews, Pena’s boss signed a written agreement with Keith Viscardi (owner of the industrial services firm) and Mack and Ramesh Patel to charge the Indian visa applicants $20,000 per visa, as opposed to the normal $500 to $1,000 cost for such services. Although Viscardi testified that Pena had not been a party to the agreement and that AMEB’s owner instructed Vicscardi not to discuss the agreement with Pena, the government showed jurors an e-mail message from Pena addressed to Mack in which Pena sought to enter a three-way side deal between Mack, Pena and Pena’s twin-brother and AMEB colleague, Alberto, to charge each worker only $15,000 and cut the others out of the deal.
The U.S. Consulate in Mumbai ultimately approved 88 visa applications before receiving an anonymous fax stating that the workers had paid large sums of money to enter the United States without the intention of returning. Following a State Department investigation, the Consulate denied all remaining pending applications.

A jury convicted Pena on all 18 counts including conspiracy charges, encouragement and inducement of illegal immigration for private financial gain, and aiding and abetting of money laundering. In upholding Pena’s conviction, the Fifth Circuit reasoned that the government had sufficiently met its evidentiary burdens during trial by showing Pena’s extensive involvement in the conspiracy through travel to India, signing of H-2B visa applications, and Pena’s e-mail correspondence with Mack acknowledging and seeking to manipulate the terms of the scheme.

United States Court of Appeals for the Ninth Circuit Clarifies Scope of “Changed Circumstances” Exception to U.S. Asylum Application Deadline
On April 5, 2011, the U.S. Court of Appeals for the Ninth Circuit reversed an Immigration Judge’s denial of Ayubbhai Vahora’s asylum application on the basis that Vahora, a Sunni Muslim and native of a predominantly Hindu village in Gujurat, India, had demonstrated sufficiently “changed circumstances” so as to merit a congressionally-designed exception to the normal one-year filing application deadline for refugees seeking asylum inside the United States. Vahora v. Holder, 2011 U.S. App. LEXIS 6867 (9th Cir 2011).

Vahora’s religious affiliation in Gujurat and his leadership activities on behalf of the local Muslim community in the 1990s led Vahora’s Hindu neighbors to target him through frequent incidents of harassment and violence. After mobilizing fellow Muslims to rebuild a mosque destroyed by a Hindu mob in Vahora’s town in 1992, Vahora was detained for a series of five days by police and subject to 12-14 beatings per day lasting a debilitating 10-12 minutes each. In addition, Vahora was dismissed from his job by his Hindu employer and harassed and threatened by local supporters of the Hindu nationalist Bhartiya Janta Party (“BJP”).
Vahora ultimately fled to the United States on April 5, 2001, ostensibly for purposes of seeking temporary refuge and without the intent of seeking asylum (Vahora had previously travelled to London twice, only to be beaten or threatened by police upon returning home). In February 2002, a group of Hindu fundamentalists burned down Vahora’s family home and farmhouse amidst widespread Hindu rioting in the region. Upon filing a complaint with local authorities, police arrested Vahora’s brother, Karim, whose whereabouts continue to remain unknown despite repeated inquiries by Vahora and his family.

Eventually Vahora’s older brother, Husman, fled for his life and went into hiding following his own police detention, prompting Vahora to file an affirmative application for U.S. asylum on December 16, 2002. The Immigration Judge (“IJ”) rejected Vahora’s claim on the basis that Vahora had failed to file his application within his first year inside the United States following his arrival from India (see 8 C.F.R. § 208.4(a)(2)). Vahora appealed, contending that he was eligible for an exception to the one-year filing requirement on the basis that intervening events between February 2002 and the eventual filing date, including the intensified regional violence, direct attacks on Vahora’s family home and property, and confrontation of Vahora’s brothers by Indian police, constituted sufficiently “changed circumstances” so as to merit an exception to the one-year timeframe under 8 C.F.R. § 208.4(a)(5). The Board of Immigration Appeals (the “BIA”) upheld the IJ’s ruling, however, finding that uptick in violence and direct attacks on Vahora’s family and property were insufficient indicia of changed circumstances, particularly in light of the substantial civil unrest and familial violence to which Vahora was exposed prior to fleeing India for the United States in 2001.

In reversing the BIA’s ruling, the Ninth Circuit found compelling the evidentiary record surrounding the events of February 2002, which had been described by some accounts as “India’s worst religious violence in decades” and a material heightening of previous civil tension that had been brewing while Vahora was still in the region. The majority also found to be material in its analysis of Vahora’s “changed circumstances” petition the increasingly direct and expanded targeting of Vahora’s family by Gujurati rioters and police.

In a bristling dissent, Ninth Circuit Judge Alex Kozinski stated that the majority’s ruling made “mincemeat” of the one-year filing requirement, and accused the majority of partaking in a “tired game” of judicial usurpation and “creative interpretation.” In the dissent’s view, an asylum seeker may only rely upon the “changed circumstances” exception if the applicant had not previously “experienced circumstances that arguably would establish a colorable claim for asylum within the statutory time period for filing.” Reasoning that Vahora possessed an arguably meritorious case for asylum even prior to the February 2002 violence, and that denial of such an application within the one-year filing deadline would not have prejudiced Vahora from filing a subsequent application should circumstances have worsened in Gujurat, Judge Kozinski concluded that “there can be no changed circumstances, regardless of how much country conditions may have deteriorated.”

The Ninth Circuit majority responded by noting the somewhat misaligned incentive that Judge Kozinski’s interpretation would create for refugees such as Vahora that do not seek asylum initially, but rather seek to wait some period of time and evaluate whether tensions might subside in their home country such that return may be possible. In response to the dissent’s claim that “[i]llegal immigrants can now sit on their asylum claims indefinitely, assured that virtually any change in country conditions will excuse their lateness,” the majority found itself unable to “conceive of a reason why any immigrant who intends to seek asylum and has an asylum claim he believes to be meritorious would withhold filing and wait, in the perverse hope that conditions in his homeland might deteriorate, rather than file his application when he is eligible.”

United States Court of Appeals for the Eleventh Circuit Affirms Dismissal of Bollywood Copyright Infringement Claim Against U.S. Hip-Hop Producer
On March 25, 2011, the United States Court of Appeals for the Eleventh Circuit affirmed the dismissal of a copyright infringement suit brought by Bollywood music and distribution company Saregama Indian Ltd. (“Saregama”) against the popular U.S. hip-hop producer Timothy Mosley (a.k.a. “Timbaland”) and various recording companies involved in the production of the 2005 song “Put You on the Game” (“PYOG”) by Grammy-nominated rap artist Jaceon Taylor (a.k.a. “The Game”). Saregama India Ltd. v. Mosley, et al., 635 F. 3d 1284 (11th Cir. 2011).

As musical producer for the work, Timbaland had allegedly interspersed The Game’s choral interludes with an approximately one-second looped vocal snippet from “Baghor Mein Bahar Hai” (“BMBH”), a feature song from the 1969 Hindi cinematic classic “Aradhana.” Specifically, while The Game trumpets a certain mastery over the factional and flirtatious goings-on of his hometown of Compton, California, PYOG listeners hear a mellifluous descending G minor arpeggio chord delivered by a female vocalist. The chord bears similarity to the notes delivered by Aradhana’s female protagonist as she engages in a timeless Bollywood routine: fending off a bedazzled romantic suitor in bucolic pastures, only to find herself drawn ever closer as the song’s melody and rhythmic intricacies develop.
In a 2007 complaint filed with the U.S. District Court for the Southern District of New York, Saregama claimed to own a copyright in the BMBH sound recording pursuant to a 1967 agreement (the “Agreement”) between the Indian film producer, Shakti Films, and Saregama’s predecessor in interest, Gramophone Company of India, Ltd. A federal district court in Florida (to where the case had been transferred) granted summary judgment to the defendants on the basis that the Agreement conferred on Saregama only a two-year exclusive right to re-record any pre-recorded song covered by the Agreement, and that such right became non-exclusive — and ceased being a copyright — at the conclusion of the Agreement’s two-year term. As a result, the Court determined that Saregama did not currently own a copyright in the BMBH sound recording and granted summary judgment without having to address whether BMBH was actually covered by the Agreement, or whether the particular PYOG voiceover sample was sufficiently similar to the BMBH melody.

India Calls for EU Member State Action on Generic Drug Seizures as a Condition to Withdrawing WTO Case
Indian Commerce and Industry Minister Anand Sharma informed members of press on April 6, 2011 that India would withdraw a case filed with the WTO in 2010 on the issue of generic drug seizures by EU transit authorities only when all members of the 27-nation bloc amended their transit rules to prevent such incidents. Sharma reported that the EU had provided India with written confirmation that the seizure of generic drugs in transit was in fact wrong and that customs rules would be amended to stop the seizures. However, Sharma insisted that the case would remain with the WTO until appropriate legislative steps had been taken at the various EU member state levels.

India’s formal request for consultations in 2010 with the EU and Netherlands under WTO dispute settlement rules (European Union and a Member State — Seizure of Generic Drugs in Transit (WT/DS408/1)) cited at least sixteen instances of “seizures of consignments of generic drugs originating in India at ports and airports in the Netherlands on the ground of alleged infringement of patents subsisting in the Netherlands while these consignments were in transit to third country destinations.” India understood the seizures to have been made by Dutch authorities under the so-called “manufacturing fiction,” by which generic drugs actually manufactured in India and in transit to Nigeria, Peru, Brazil, and other destinations were treated as if they had been manufactured in the Netherlands. India alleges the generic drug seizures to constitute an unreasonable and discriminatory restriction on the freedom of transit, in contravention of GATT 1994, and also a violation of WTO rules established as part of the Doha Round to protect certain instances of compulsory licensing of pharmaceuticals for public health purposes.

Following India’s filing of the case in Geneva, a number of other WTO members submitted formal requests to join the consultations with the EU, including fellow manufacturers of generic drugs for international export such as Canada and China, traditional generics importers such as Ecuador, and countries such as Brazil, whose trade interests in generic drugs are driven by import and export considerations alike.

Sean G. Kulkarni is an international trade and economic affairs attorney based in Washington, D.C. Sean currently serves as an International Trade Policy Fellow at the Ways and Means Committee of the U.S. House of Representatives. Sean may be reached at sean.g.kulkarni@gmail.com.

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