Dr. Mitchell: Seeking immunity from prosecution

Prime Minister Dr. Keith Mitchell has hired the same U.S law firm that is being used by his deputy, Gregory Bowen to defend him in a costly oil and gas dispute with U.S oil investor, Jack Grynberg.

The law firm is Paul, Weiss, Rifkind, Wharton & Garrison LLP that is located in the prestigious Avenue of the Americas in the heart of New York city.

The lead lawyer in the case is Charles Johnson, who earlier in the year visited Boston to urge imprisoned fraudster, Eric Resteiner not to co operate with legal proceedings on the Switzerland US$500, 000 bribery video-tape.

Dr. Mitchell is facing an accusation in New York of benefitting from the mail and wire fraud committed by Resteiner against Boston businessman, Charles Howland.

The U.S law firm is asking the court hearing the matter to dismiss the case that is brought against the Prime Minister and his wife on the grounds that the Grenadian leader is a"head of state" and is immune from prosecution in the United States.

Following is Part 1 of the"Motion to Dismiss" that was filed by Johnson on behalf of Prime Minister Mitchell:

Preliminary Statement

This is a bogus lawsuit brought against the Prime Minister of Grenada and his wife. As a matter of law, it should be dismissed for at least the following five reasons:

First, as this very Court noted in Tannenbaum V. Rabin, No. CV-95-4357, 1996 (dismissing an action against the Prime Minister of Israel), the Head-of State immunity doctrine is an absolute bar to this action against Prime Minister Mitchell - for claims of either a personal or official nature

- unless that immunity has been expressly waived by Grenada or by a U.S. Statute.

Neither such waiver has occurred. That same immunity extends to the Prime Minister's wife.

Second, this Court lacks personal jurisdiction over Prime Minister Mitchell and his wife. Here, the basis for invoking this Court's personal jurisdiction over the Mitchells is their alleged ownership of property in New York, purportedly satisfying 302(a)(4) of New York's long-arm statute.

However 302(a)(4) requires a plaintiff to identify in what way the cause of action"arose out of" the alleged property ownership.

Plaintiffs have not and cannot do this.

Third, this Court also lacks subject-matter jurisdiction. The Amended Complaint premises jurisdiction on the diversity of the parties, pursuant 28 U.S.C 1332.

However, because Marietta Mitchell is alleged to be a U.S. citizen residing in Grenada, complete diversity does not exist.

Where, as here, one of the parties to an action is alleged to be a U.S. citizen not domiciled in the United States, a federal court does not have diversity jurisdiction.

Fourth, plaintiff's sole cause of action, for"fraudulent transfer," fails to state a claim. Under New York's choice-of-law rules, Swiss law applies to plaintiff's claim for fraudulent transfer.

And, under Swiss law, there is no cause of action for fraudulent transfer outside of insolvency proceedings filed in a Swiss court.

Fifth, plaintiff fails to state a claim against Mrs. Mitchell, even under New York law, for two separate reasons. First, she cannot be held liable simply by association with her husband.

Plaintiff Howland alleges that Mrs. Mitchell is married to the Prime Minister and, apparently by virtue of that relationship, benefitted from the proceeds of the transfer allegedly received by her husband.

However, the marital relationship does not magically impose on a wife liability for her husband's torts.

Second, even under New York law, Mrs Mitchell not only must have benefitted from the allegedly fraudulent transfer outside the context of her marital relationship, she must also have participated in that transfer.

Because plaintiff Howland fails to allege Mrs. Mitchell's participation, he fails to state a claim against her for this reason, too.

Statement of Facts

In this lawsuit plaintiff Charles Howland alleges that he was the victim of a fraud perpetrated by defendant Eric Resteiner, in which he lost $140,000.

On February 8, 2006, Resteiner pled guilty to five counts of wire fraud and two counts of mail fraud in federal Indictment No. 04 Cr. 10082 pending against him in the District of Massachusetts.

In that Indictment, Howland is identified by name as one of the people who Resteiner fraudulently solicited and who wired Resteiner monies.

On May 16, 2007, Judge Nancy Gertner sentenced Resteiner to 87 months in prison, to be followed by two years of supervised release.

This sentence also included an order of restitution for the benefit of the victims of Resteiner's fraud, which, presumably, include Howland. Resteiner is now incarcerated at a federal detention facility in Rhode Island (Am Compl 2).

The Amended Complaint does not allege, nor could it, that Prime Minister Mitchell or Mrs. Mitchell took any part in Resteiner's fraud. Rather, the pretext for suing the Mitchells is the fantastic allegation that in June 2000 Resteiner gave the Prime Minister $500,000 cash at Resteiner estate in St. Moritz, Switzerland.

The apparent origin of this allegation is Resteiner's pre-sentence submission, in which he makes this claim, in a vain effort to offer himself as a cooperating witness.

The U.S. Attorney in Boston, however, apparently rejected this offer, and Judge Gertner, in imposing sentence, likewise failed to credit Resteiner purported cooperation on this score.

Plaintiff Howland asserts a single cause of action for"fraudulent transfer" against Prime Minister Mitchell which Howland characterizes as a"bribe" to"frustrate Resteiner's creditors including Plaintff".

There is no allegation at all that defendant Marietta Mitchell participated in this alleged receipt of cash.

Although plaintiff, in conclusory fashon, alleges that Mrs. Mitchell knew the alleged cash transfer frustrated the efforts of Resteiner's creditors to recover their money, the allegaton directed against her is that she is married to Prime Minister Mitchell and that she benefitted"from the alleged transfer. Federal jurisdiction is premised on diversity of citizenship. Plaintiff Howland is alleged to be a resident of Massachusetts, defendant Resteiner is alleged to be a former resident of the Bahamas and Switzerland, now in federal detention in Rhode Island.

Defendant Keith Mitchell is the current Prime Minister of Grenada and the Amended Complaint alleges that both Prime Minister Mitchell and his wife are U.S. Citizens and residents of Grenada.

As the sole basis for personal jurisdiction over the Mitchells in this diversity action, the Amended Complaint alleges, upon information and belief, that the Mitchells own real property at 483 Linden Boulevard in Brooklyn.

There is no other allegation in the Amended Complaint of a connection to New York. There is no allegation that 483 Linden Boulevard has any connection to Howland, Resteiner, the alleged transfers of cash to Prime Minister Mitchell or that 483 Linden Boulevard was purchased with use of that cash.

There is no allegation that the alleged transfers of cash to Prime Minister Mitchell took place in New York.

Argument

This ACTION AGAINST THE MITCHELLS MUST BE DISMISSED PURSUANT TO THE DOCTRINE OF HEAD-OF-STATE IMMUNITY

A. Prime Minister Mitchell

As the current Prime Minister of the sovereign nation of Grenada, defendant Keith Mitchell is immune from suit in this Court under the long-standing doctrine of head-of-state immunity.

Under this doctrine, U.S. Courts lack personal jurisdiction over foreign heads of state, whether they are being sued for official or private acts, unless this immunity has been waived by the foreign government in question or by U.S. Statute.

Plaintiff Howland does not dispute, and indeed alleges, that defendant Keith Mitchell is the current Prime Minister of Grenada. Further, Howland does not and cannot allege that the government of Grenada has waived the immunity accruing to its Prime Minister, or that this immunity has been waived by U.S. Statute.

Although the Amended Complaint makes reference to the Foreign Sovereign Immunities Act, which affords foreign states jurisdictional immunity (and contains exceptions to that immunity in a variety of circumstances), it is well established that head-of-state immunity is not preempted by, and has survived the enactment of, the Foreign Sovereign Immunities Act.

Even in the event that the Court were to some how conclude that Prime Minister Mitchell is not entitled to head-of-state immunity, he is also immune from suit in this court pursuant to the Foreign Sovereign Immunities Act (³FSIA").

The FSIA provides the sole basis for subject-matter jurisdiction in the U.S. Federal and state courts over a"foreign state," and affords complete jurisdictional immunity unless one of the statutory exceptions within the FSIA applies.

An individual is a"foreign state" within the meaning of the FSIA when he is a foreign official being sued for actions taken in his official capacity.

The Prime Minister of Grenada is indisputably a foreign official.

Further, plaintiff himself alleges that Resteiner was Grenada's General Ambassador and a supposed meeting between a country's ambassador and Prime Minister is, on its face, conceivably well within the ambit of that Prime Minister's official duties.

Although plaintiff contends that the motive for the meeting was a purported bribe, courts do not look to the motive underlying official actions.

("In determining whether acts are official or personal, the court must be mindful of the nature of the individual's alleged actions, rather than the alleged motives underlying them...") Thus, even were the allegations of fraudulent transfer true, the head-of state doctrine affords the Prime Minister absolute immunity from suit.

In tachiona, Judge Marrero addressed ugly allegations that President Mugabe of Zimbabwe and others had carried out a campaign of extra-judicial brutality, including murder, torture, terrorism, and rape, designed to violently suppress an opposition political party.

Tachiona plaintiffs alleged that President Mugabe, in committing these wrongs, had acted outside his official duties.

In discussing the complaint, Judge Marrero stated that"the controversy now before the Court tests the residual vigour of a political and legal legacy of sovereign antiquity,"whether courts are still"preclud(ed) from extending jurisdiction over the foreign government leaders here, no matter how grievous or unofficial the wrongs they are called upon to answer".

Judge marrero concluded that the lawsuit was indeed precluded, under the common law doctrine of head-of-state immunity.

Likewise, here,"no matter how grievous or unofficial the wrongs" alleged against Prime Minister Mitchell, he is entitled to the immunity that U.S.

Law confers on heads of sovereign states. Therefore, this Court lacks personal jurisdiction over him.

B: Defendant Marietta Mitchell

Likewise, the Head-of-State immunity that bars actions against the Prime Minister extends to his wife.

Extension of the immunity to Mrs Mitchell is particularly appropriate here, given that she is sued simply for being the Prime Minister's wife, and"benefiting" from his actions.

Accordingly, this action must be dismissed against both Prime Minister and Mrs Mitchell on the grounds that they are absolutely immune from suit in the U.S. Courts.

(To be continued next week)