The Republic of the Philippines v. Ferdinand E. Marcos

The Republic of the Philippines (the Republic) brought a civil suit against its former president, Ferdinand Marcos, and his wife Imelda (the Marcoses), asserting claims under the Racketeer Influenced and Corrupt Organizations Act (RICO), 18 U.S. *1358 C. §§ 1961 et seq., and other applicable law. The district court on June 25, 1986 entered a preliminary injunction enjoining the Mar-coses from disposing of any of their assets save for the payment of attorney fees and normal living expenses. The Marcoses appealed. A panel of this court reversed, 2-1. 818 F.2d 1473 (9th Cir.1987). We took the case en banc and now affirm the district court.

Federal Jurisdiction

The Republic alleges that the Marcoses engaged in mail fraud, wire fraud, and the transportation of stolen property in the foreign or interstate commerce of the United States. The acts alleged are crimes under 18 U.S.C. §§ 1341 , 1343, and 2315. The Republic alleges that the acts were repeated, forming a pattern of predicate acts under RICO, 18 U.S.C. § 1961 , and thereby giving rise to civil liability under RICO, 18 U.S.C. § 1964 .

Contrary to the contention of the Marcoses, the Republic as a governmental body is a person…

with whom CANBY, Circuit Judge, joins concurring in part and dissenting in part.

I join in the majority’s conclusion that there is a well-pleaded RICO claim providing federal subject matter jurisdiction. I agree further that the act of state doctrine is not a threshold bar to considering the activities of the defendants during the time that Mr. Marcos was the Philippine head of state. Those were the principal issues that a majority of the three-judge panel considered and that we undertook to decide in this en banc proceeding.

The injunction we review, however, was entered only a week after this suit was filed, and the record before us is minimal. It does not provide support for the majority’s resolution of the further issues it must reach, without reasoned analysis, in order *1365 to uphold this injunction. I therefore dissent from the affirmance.

The injunction is based upon the district court’s exercise of pendent jurisdiction, not federal question jurisdiction. It is based on a complaint alleging, in the most sweeping of generalities, pendent claims of fraud and conversion by the Marcoses over the course of twenty years. The pendent claims are alleged to be violations of as…

concurring specially in Judge SGHROEDER’s concurring and dissenting opinion:

I concur fully in the following portions of Judge Schroeder’s opinion: its discussion of the basis for finding jurisdiction based on a well-pleaded RICO claim; its discussion of the basis for concluding that the act of state doctrine is not a prudential bar at this stage of the proceedings in this case.

I concur only in its conclusion that the injunction should be vacated and remanded for further consideration in that I do not agree with its restrictive view of pendent jurisdiction (by the same token, I cannot agree with the majority’s expansive approach). Also, I would stay the vacation of the injunction for a reasonable period of time to allow the district court to reconsider the injunction and its scope in light of the current state of the record.

862 F.2d 1355 57 USLW 2351 , RICO Bus.Disp.Guide 7108 The REPUBLIC OF THE PHILIPPINES, Plaintiff-Appellee, v. Ferdinand E. MARCOS, et al., Defendants-Appellants. No. 86-6091. United States Court of Appeals, Ninth Circuit. Argued and Submitted Feb. 10, 1988. Decided Dec. 1, 1988. Special Concurrence, Dec. 2, 1988. Richard A. Hibey, Anderson, Hibey, Nauheim & Blair, Washington, D.C., John J. Bartko, Bartko, Welsch, Tarrant & Miller, and Stephen Horn, Schmeltzer, Aptaker & Sheppard, P.C., Washington, D.C., for defendants-appellants Ferdinand E. Marcos, Imelda R. Marcos and Ramon Azurin. John J. Stumreiter, Rosenfeld, Meyer & Susman, Beverly Hills, Cal. and Gerald Walpin, Rosenman, Colin, Freund, Lewis & Cohen, New York City, for defendants-appellants Diosdado C. Ordonez and Ancor Holdings, N.V. Ronald L. Olson, Bradley S. Phillips, Richard B. Kendall, Munger, Tolles & Olson, Los Angeles, Cal., for plaintiff-appellee Republic of the Philippines. Richard K. Willard, Asst. Atty. Gen., James M. Spears, Deputy Asst. Atty. Gen., Robert C. Bonner, U.S. Atty., Robert E. Kopp, John F. Cordes, and John P. Schnitker, Asst. U.S. Attys., Washington, D.C., for the amicus…