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• ADMIRALTY Partial parasailing ban accords with federal law Neither a U.S. Coast Guard license nor the federal Marine Mammal Protection Act pre-empts Hawaii state law prohibiting parasailing during certain times of the year, the 9th U.S. Circuit Court of Appeals held on Nov. 28. UFO Chuting of Hawaii Inc. v. Smith, No. 05-16545. UFO Chuting of Hawaii Inc. operated parasailing tours in Hawaii under a federal maritime coasting license in compliance with the federal Marine Mammal Protection Act. However, Hawaii state law prohibits parasailing off the coast of Maui from Dec. 15 to May 15 in order to protect the breeding grounds of humpback whales. UFO sued the state in a Hawaii federal court, arguing that the federal marine life protection law pre-empts Hawaii state law. The court granted summary judgment to UFO. However, shortly after this ruling, Congress passed an omnibus federal appropriations bill containing a provision giving Hawaii the authority to regulate watercraft to protect humpback whales. The court vacated its earlier order and entered summary judgment in favor of the state. Affirming, the 9th Circuit distinguished Hawaii’s parasailing law, which prohibits parasailing only during certain times of the year, with the Hawaii law at issue in its earlier holding, Young v. Coloma-Agaran, 340 F.3d 1053, 1055 (9th Cir. 2003) � a law that banned all commercial vessels from the Hanalei River or Hanalei Bay ocean waters at all times of the year. In Young, the 9th Circuit held that a commercial tour boat operator that held a federal license from the Coast Guard authorizing it to engage in coastwise trade pre-empted the Hawaii rule. “Here, in contrast to Young,” the court said, “the ban on parasailing is only in effect for five months of the year. The Hawaii statute undoubtedly imposes a significant restriction on the ability of UFO to ply its trade, but the State has not ‘completely excluded’ UFO from engaging in coastwise trade in the relevant waters as it did with the year-round ban in Young.” Full text of the decision • ADR Award can be modified only if there’s been error An Alabama court exceeded its authority by reducing an arbitration award in a dispute over property taxes owed on a Missouri shopping center, the 11th U.S. Circuit Court of Appeals held on Nov. 27. AIG Baker Sterling Heights LLC v. American Multi-Cinema Inc., No. 07-10130. Shopping center owners AIG Baker Sterling Heights and A.B. Olathe II L.P. agreed with American Multi-Cinema Inc. to arbitrate a dispute concerning the liability for real estate taxes assessed by a Kansas county on property American leased for movie theaters. During arbitration, American said its share of taxes for the year 2002 was about $227,000. The arbitration panel awarded Baker more than $866,000, which included American’s share of the tax bill. Subsequently, American discovered it had paid the tax assessor directly about $249,000. Baker filed an action in an Alabama federal court to confirm the award and collect prejudgment interest. American filed suit in a Missouri federal court to change the award, claiming it was based on erroneous information it had provided the panel. The cases were consolidated in Alabama. Rejecting Baker’s argument to confirm, an Alabama federal judge deducted $249,000 from the panel’s award. The judge cited a provision of the Federal Arbitration Act, 9 U.S.C. 11(a), which says a district court may correct “an evident material mistake in the description of any person, thing, or property referred to in the award.” The failure of the facts to reflect that American had paid $248,624.57 to the county was an “evident material mistake,” the judge said. Reversing, the 11th Circuit concluded that the trial court exceeded its authority in changing the arbitration award. The judge had misinterpreted the statute. According to Section 11(a), a district court may modify or correct an arbitration award “[w]here there was an evident material miscalculation of figures or an evident material mistake in the description of any person, thing, or property referred to in the award.” The arbitration award in this case wasn’t a mistake, but a result of ignorance. “The panel lacked knowledge because American never provided the panel with information about the tax payment to the county. The arbitration award that Baker received may be a product of ignorance attributable to an oversight by American, but the award does not contain an ‘evident material mistake in the description of any person, thing, or property referred to in the award,’ ” the court said. • CONSTITUTIONAL LAW Counsel can waive right against double jeopardy A defendant’s counsel can � over his client’s objections � waive the defendant’s constitutional protection against double jeopardy, the District of Columbia Court of Appeals held on Nov. 29 in a case of first impression for the court. Nero v. District of Columbia, No. 06-CT-269. Jimmy Nero was on trial for driving under the influence of drugs and failure to obey a lawful police order. During cross-examination, Nero claimed that, at the time of the incident, he was not high on drugs, but “with the Holy Spirit.” He added that phencyclidine (PCP) was the Holy Spirit and that he was with the Holy Spirit as he was testifying. The court ordered him to undergo a urinalysis. Nero’s urine tested positive for PCP. Over Nero’s objections, his counsel moved for a mistrial, which the trial court granted. After he was convicted at a retrial, Nero appealed, arguing that jeopardy had attached in the first trial and that � because his counsel moved for a mistrial over his objections � his conviction violated his constitutional protection against double jeopardy. Affirming, the District of Columbia Court of Appeals, the district’s highest court, noted that courts have long held that finding a defendant incompetent to stand trial in the midst of trial is a “manifest necessity” permitting a court to declare a mistrial over a defendant’s objections and allowing a defendant to be retried in a subsequent proceeding. “[T]he decision to move for a mistrial is within the sound discretion of counsel exercising his professional expertise, and may be made over the objection of a defendant . . . .By moving for a mistrial, trial counsel effectively waived Nero’s claims of double jeopardy and Nero’s second trial was proper.” • CRIMINAL PRACTICE No DNA testing after a defendant pleads guilty A defendant who pleads guilty may not subsequently file a motion seeking genetic testing as part of an actual innocence claim, the Illinois Supreme Court held on Nov. 29 in a case of first impression. Illinois v. O’Connell, No. 102707. John O’Connell pleaded guilty to murder and aggravated criminal sexual assault of a flower shop worker. He was arrested near the scene with blood on his clothing and hands. A bloodstained knife was found in his van. O’Connell confessed and pleaded guilty. Before the plea, the trial judge informed him that he had the right to a jury trial and to present a defense. O’Connell told the judge he was waiving these rights. O’Connell was sentenced to life imprisonment. Subsequently, O’Connell filed a pro se motion to allow DNA testing pursuant to Section 116-3 of the state criminal code, which allows a defendant to make a motion for fingerprint or forensic testing “not available at the time of trial” when “identity was the issue in the trial” that resulted in the defendant’s conviction. A judge denied the motion, saying O’Connell had failed to establish a prima facie case for DNA testing because “identity was not at issue at trial.” However, an intermediate appellate court reversed and remanded, finding that the defendant’s motion satisfied the requirements of the law. The Illinois Supreme Court vacated. Conducting what it called a straightforward statutory construction, the court said: “The plain and unambiguous language of section 116-3 permits a motion for DNA testing only when a defendant has been convicted following a trial contesting identity. Accordingly, as a matter of law, defendants who plead guilty may not avail themselves of section 116-3. Those defendants are a separate group who have not contested identity at trial.” • IMMIGRATION LAW Refusal to cooperate is an imputed political opinion After being kidnapped, released and told she would be called on again, a Colombian woman’s subsequent flight from her previous residence can be considered an imputed political opinion that she did not want to cooperate with an anti-government group, the 2d U.S. Circuit Court of Appeals ruled on Nov. 28. Delgado v. Mukasey, No. 05-4393. Maria Del Pilar Delgado, a Colombian national, was abducted by an anti-government group, the Revolutionary Armed Forces of Colombia (FARC), and ordered to set up the group’s computer network. The kidnappers threatened Delgado’s family if she did not help, but after three days, the computer equipment had not arrived and so they let Delgado go. She fled to another town, but FARC members showed up in Delgado’s former hometown and called her mother, asking where she was. Delgado eventually fled to the United States and sought asylum. The immigration judge said that, though Delgado’s fears were subjectively genuine, she was eligible for removal because she was not kidnapped for her political opinions, only for her computer skills. The Board of Immigration Appeals affirmed. The 2d Circuit reversed and granted Delgado’s petition for review. The BIA should have considered Delgado’s “imputed political opinion” claim: that she was threatened with death if she did not help FARC, and that her flight to another town could be viewed as a refusal to cooperate with the group. Furthermore, kidnapping can constitute persecution, and just because Delgado has already been kidnapped once does not mean that a subsequent kidnapping would not be considered persecution.

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