Month: March 2019

Today's extra-long episode contains your guide to all of the developments involving Paul Manafort over the past week.  What does it all mean and what can we expect next?  Listen and find out!

We begin, however, with a brief update on Episode 247 now that the Department of Defense has issued a Directive-Type Memorandum (DTM 19-004) implementing the ban on transgender service in the military.  With the help of some friends of the show, we break down the most pressing issues on the near horizon.

Then, it's time for All Things Manafort (TM), which sneakily includes a deep dive into exactly how the U.S. Federal Sentencing Guidelines came into effect, when they were mandatory, how they became advisory, and what the hell happened in the Eastern District of Virginia.

But that's not all!  After that, we have a discussion on when sentences should run consecutively versus concurrently, and how that interacts with Judge Amy Berman Jackson's sentencing decision in Manafort's DC case.

AND we also have breaking news regarding new state charges brought against Manafort as soon as both federal sentences were handed down.

And if that's not enough for you, well, we end, as always, with a brand new Thomas Takes the Bar Exam Question #118 that's a dreaded real property question.  As always, remember to follow our Twitter feed (@Openargs) and like our Facebook Page so that you too can play along with #TTTBE!

AppearancesNone!  If you'd like to have either of us as a guest on your show, drop us an email at openarguments@gmail.com.

Show Notes & Links

1. First discussed trans ban back in Episode OA: 247
2. We were assisted by Alice Ashton – trans Arabic linguist who contributed to the Advocate article located here and by Deirdre Anne Hendrick.
3. Here is a link to Directive-Type Memorandum (DTM) 19-004.
4. This is the Feb. 22, 2018 Mattis directive.
5. Here are the DSM-5 guidelines on gender dysphoria
6. We first discussed the Sentencing Guidelines in Episode OA: 162.
7. The accompanying statute is 18 U.S.C. §3553.
8. For a primer on “variances” versus downward departures, check out the Sentencing Commission guidelines.
9. Judge Ellis transcript can be found here.
10. Concurrent/consecutive is governed by 18 U.S.C. § 3554.
11. Manafort’s NY State indictment involves Residential Mortgage Fraud 1st degree (4 counts) under Penal Law § 187.25 and Falsifying Business Records 1st Degree (8 counts) under §175.10.
12. We discussed Gamble v. U.S. in Episode Episode OA: 215.

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On January 9, 2019, the Supreme Court heard argument in Franchise Tax Board of California v. Hyatt, a case considering whether one state may, without its consent, be sued by a private citizen in another state’s courts.
In the 1990s, Gilbert Hyatt moved from California to Nevada. Following an investigation and audit, however, the Franchise Tax Board of California (FTB) claimed that he had misstated the date of his move and therefore owed California millions in unpaid taxes, penalties and interest. Hyatt then brought a tort suit against FTB, which is a California state agency, in Nevada state court--and won a jury verdict of nearly $500 million. Although the Nevada Supreme Court set aside much of the award on appeal, it nevertheless affirmed an award of $1 million for fraud--even though a Nevada statute would have capped such damages in a similar suit against Nevada officials at $50,000. Nevada’s interest in providing adequate redress to its own citizens, the court concluded, superseded the application of any statutory cap for California’s benefit.
California sought review in the U.S. Supreme Court, urging it to overrule the 1979 decision Nevada v. Hall, which held that one state’s courts could adjudicate a private citizen’s lawsuit against another state without the second state’s consent. The Supreme Court granted certiorari but split 4-4 on the issue, which resulted in a technical affirmance of the Nevada Supreme Court’s exercise of jurisdiction. Reaching the merits, the Court held by a vote of 6-2 that the U.S. Constitution did not permit Nevada to apply a rule of Nevada law that awarded damages against California greater than it could award against Nevada in similar circumstances.
On remand, the Nevada Supreme Court reissued its vacated opinion except as to the damages portion and applied the statutory damages caps for FTB’s benefit. FTB again petitioned for certiorari, however, and the U.S. Supreme Court agreed to revisit the issue on which it had previously split 4-4: whether Nevada v. Hall, which permits a sovereign state to be haled into another state’s courts without its consent, should be overruled.
To discuss the case, we have Stephen Sachs, Professor of Law at Duke University.