MOCA Update

The LA Times's Mike Boehm has an update on the California attorney general's investigation into LA MOCA's finances -- "the withered state of which became a running news story last November and December."

Third-Party Guarantee

At Christie's last night, a Picasso was sold by Jerome Fisher, a founder of the footwear company Nine West and (according to the NYT's Carol Vogel) "a victim of the Bernard L. Madoff swindle," for $14.6 million. The WSJ's Kelly Crow adds some further detail:

"Before the sale, the auction house had signed up outside investors to promise the seller of the Picasso a prearranged price for the painting. In exchange, the investors were promised a cut of any profits should the work sell to another bidder for an even greater price, an arrangement called a third-party guarantee. During the sale, the anonymous investors bid on the Picasso but were ultimately outbid."

"Ultimately the administration decided that the government should hold onto more tax revenue to improve health care"

The director of the White House domestic policy council tells foundation officials that President Obama’s plan to limit charitable tax deductions "was hotly debated in the White House."

More Art-Related Bankruptcy News

The Wall Street Journal reports: "The art lovers at a once high-flying subprime mortgage lender now under bankruptcy protection and California’s insurance regulator have settled their fight over collection of Ansel Adams prints. Fremont General Corp. has agreed to let California’s Insurance Commissioner to keep $4.1 million from the sale of Ansel Adams prints sold at Christie’s auction house last year in the months before the company filed for bankruptcy protection."

Salander Bankruptcy Compromise

Bloomberg's Philip Boroff has the latest on the Salander bankruptcy: "Bank of America’s First Republic unit agreed to share proceeds from the sale of art with other creditors of the bankrupt Salander-O’Reilly Galleries LLC. The compromise was announced [Monday] in U.S. Bankruptcy Court in Manhattan. As a secured creditor, First Republic could have claimed the proceeds before others."

Flores-Figueroa: Forgiving Sloppy Statutese

[1] The USSC decided a case yesterday contrary to the actual language of the statute - using the language of statutory interpretation. In Flores-Figueroa, the Court had to decides "knowingly" is not an adverb but a substitute for the phrase "knowing it to be." The Court is interpreting this statute:

[2] knowingly transfers, possesses, or uses, without lawful authority, a means of identification of another person. 18 U. S. C. §1028A(a)(1)

[3] However, when the Court is finished with it, the statute ends up being this:

[4] transfers, possesses, or uses, without lawful authority, a means of identification knowing it to be of another person.

[5] The Court's rationale is that

As a matter of ordinary English grammar, it seems natural to read the statute’s word "knowingly" as applying to all the subsequently listed elements of the crime. The Government cannot easily claim that the word "knowingly" applies only to the statutes first four words, or even its first seven.

[6] Poppycock. Balderdash. Fiddlesticks.

[7] "Knowingly" does not equal "knowing it to be." To be certain, the statute is poorly written and would make much more sense if it were written in the manner which the Court decided to rewrite it. However, as we all learned somewhen about the 3d grade, "ly" is a suffix indicating an adverb. This confines it to the verbs, "transfers, possesses, or uses." Thus, the government is quite correct in claiming that "knowingly" applies only to those four words. The Court is correct in stating that "without lawful authority" (the next three words-making "its first seven") isn't modified by "knowingly" because they also modify the verbs.

[8] Before anyone argues that certain adjectives can also end in "ly", I concede the point. Words such as "lovely" are clearly adjectives: "the lovely dress." Still, the general rule isn't violated in this case.

[9] In any event, I invite you to diagram that statute. Go on, it's a skill we all learned in seventh grade English class. Okay, now look at that line which separates the verbs from the object. Which side is "knowingly" on? The verbal side. Or, if you don't have the rudimentary English skills to do that, just take "knowingly" and try to fit it anywhere into "a means of identification of another person" without changing the form of "knowingly." It doesn't work.

[10] Justify your decision another way. Tell me that the Constitution, via the common law, requires a defendant to intend every element of a crime. Tell me there's a rule of statutory interpretation requiring intent for every element of a crime. Heck, tell me there's a scriviner's error. Just don't tell me you've reached this conclusion "as a matter of ordinary English grammar."

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