Beneficials Owners Be Aware

Posted On Monday, June 14, 2021
By: Christin M. Roberts

Takeaway:

In an effort to curtail corruption, President Biden’s new memorandum requires U.S. Companies to disclose their beneficial ownership to the Department of the Treasury.


One hundred and forty-one days after President Biden took office, he now calls upon 15 different agencies and offices within the government to each play a part in his administration’s assault on corruption. In his “whole of government” approach, President Biden tasks the 15 agencies and offices – which ranges from the Department of Defense, to the Office of Management and Budget to the Office of the Chairman of the Joint Chiefs of Staff – to actively participate in an interagency review to counter corruption in the U.S. and abroad.

On June 3, 2021, President Biden signed his 173rd Presidential Action, titled Memorandum of Establishing the Fight Against Corruption as a Core United States National Security Interest. After a long and contentious campaign trail, this memorandum serves as an initiation for his administration to:

  • Promote good governance
  • Bring transparency to the U.S. and global financial systems
  • Prevent and combat corruption at home and abroad
  • Make it increasingly difficult for corrupt actors to shield their activities

According to the “Fact Sheet” released in conjunction with the Memorandum, on December 20, 2021, 200 days after President Biden signed the Memorandum, the interagency review will culminate in a report and provide recommendations on how the U.S. Government and its partners can:

  • Modernize, Coordinate, and Resource Efforts to Better Fight Corruption
  • Curb Illicit Finance
  • Hold Corrupt Actors Accountable
  • Build International Partnerships
  • Improve Foreign Assistance

The true implications of this memorandum will not be known for another 192 days, but for now we know the focus on “curbing illicit finance” has a newfound federal focus: robust federal law will now require U.S. companies to report their beneficial owner or owners to the Department of the Treasury. This requirement is geared toward eliminating shell corporations and disrupting tax havens by reducing offshore financial secrecy and improving information sharing.

These proactive measures mark a bold new take on weeding out corruption; the interagency review report will determine whether new Federal legislation is necessary to implement more reforms targeted at combating illicit finance in the U.S. and international financial system. See full Memorandum on Establishing the Fight Against Corruption as a Core United States National Security Interest

Supreme Court Bans Retroactive Application of New Decisions in Criminal Cases

Posted On Thursday, May 20, 2021
By: Lourdes Sánchez Ridge

Takeaway:

The U.S. Supreme Court announced that new decisions in criminal cases are never to be applied retroactively in cases not on direct review.


The U.S. Supreme Court (the Court) has once again ruled that new decisions in criminal matters are not to be applied retroactively on federal collateral review even if convictions were obtained in violation of the Constitution.  The Court saw no new rules of criminal procedure capable of ever being applied retroactively.  It stated in its May 17, 2021 opinion in Edwards v Vannoy, (Edwards) that continuing to suggest that there may be cases in the future where retroactive application of a new rule or decision is possible, is giving litigants false hope of reversal, “distorts the law, misleads judges, and wastes the resources of defense counsel, prosecutors, and courts.”

In Edwards the defendant was convicted of kidnapping, armed robbery, and rape by less than a unanimous vote.  The defendant appealed arguing that a non-unanimous jury verdict in state court violated his Sixth Amendment constitutional right to a unanimous verdict.  While the defendant’s petition for certiori before the Court was pending, the Court decided Ramos v Louisiana, (Ramos), ruling that the Fourteenth Amendment incorporates the Sixth Amendment’s right to a unanimous jury verdict requiring state court convictions to be unanimous.  The Court refused to retroactively apply the Ramos decision to Edwards.

A new rule of criminal procedure decided by the Court, either by reversing an existing precedent or declaring a new rule, does not usually apply retroactively to overturn final convictions on federal collateral review.  The Court reasoned that applying a new rule retroactively “seriously undermines the principle of finality which is essential to the operation of our criminal justice system.”  The Court further explained that applying a new rule would essentially open the floodgates of overturning decades of convictions and relitigating cases would be too costly and virtually impossible in older cases where the evidence may have been stale or lost. 

Prior to Edwards, there was only one exception to the rule forbidding retroactive application of a new rule:  the “watershed rule of criminal procedure.”  The watershed rule allowed for a new rule to be applied retroactively if it alters “our understanding of the bedrock procedural elements essential to the fairness of a proceeding.  Yet, only one doctrine has ever been applied retroactively:  the right to counsel in criminal cases, Gideon v Wainwright.  Since 1963 there has been no new rules applied retroactively including landmark cases that fundamentally reshaped and expanded constitutional rights of criminal defendants such as the defendant’s right to counsel during police interrogation (Miranda v Arizona); the right to a jury trial (Duncan v Louisiana); and the right under the Sixth Amendment Confrontation Clause to restrict hearsay evidence (Crawford v Washington).

It is of utmost interest that the Court has determined that there will never be a situation where a constitutional violation is so grave that will merit applying a new decision retroactively.  In Edwards, the Court has essentially shattered all hopes of any defendant having been convicted in violation of the Constitution but whose constitutional infirmities had not yet been decided at the time of conviction. 

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