Case of the Day: McCarty v. Roos

The case of the day is McCarty v. Roos (D. Nev. 2012). It’s a bit off the beaten path. Robert Joseph McCarty was convicted of “quasi indecent assault” in Japan in 2003. When he returned to the United States, he was required to register as a sex offender under the Sex Offender Registration Notification Act. McCarthy argued that he had been denied due process in Japan, 1 and he sued several Nevada officials as well as John V. Roos, the US ambassador to Japan, and Joseph Koen, a US consular officer, in their individual and official capacities.

Roos and Koen moved to dismiss the claims asserted against them in their individual capacities on the grounds, among others, of insufficient service of process. At the time of service, Roos resided in Japan and Koen in Mexico. McCarthy had sought to serve both defendants by mail.

As for Japan, the court acknowledge that Japan had not objected to service by mail under Article 10(a) of the Hague Service Convention, but following Ninth Circuit precedent in Brockmeyer v. May, he held that Article 10 did not, of its own force, authorize service by mail. This is correct, but note that the law is different elsewhere, e.g., in the Second Circuit. Service by mail in such circumstances is permissible under FRCP 4(f)(2)(C)(ii), but only if the clerk addresses and sends the mail, and the form of mail used requires a signed receipt. 2 Incidentally, this is a case where service by mail in Japan might actually make sense. Ordinarily, service by mail is to be avoided if the judgment will have to be enforced in Japan, because even though Japan has not objected to service by mail under the Convention, its declarations indicate that it may be difficult to enforce a judgment in Japan based on such service. But here the defendant was the US ambassador, and presumably the judgment could be enforced against him in the United States.

As for Mexico, the judge noted that Mexico, unlike Japan, has objected to service by mail under the Convention. So the attempt at service by mail was simply impermissible.

The judge therefore granted Roos and Koen’s motion, but with leave to attempt service again.

Notes:

  1. The relevant part of SORNA, 42 USC § 16911(5)(B), provides: “A foreign conviction is not a sex offense for the purposes of this subchapter if it was not obtained with sufficient safeguards for fundamental fairness and due process for the accused …“
  2. Note that there are some instances of courts showing leniency on this requirement, at least where the clerk refuses to mail the papers and returns them to the plaintiff for service. But that apparently wasn’t the case here.

About Ted Folkman

Ted Folkman is a shareholder with Murphy & King, a Boston law firm, where he has a complex business litigation practice. He is the author of International Judicial Assistance (MCLE 2012), a nuts-and-bolts guide to international judicial assistance issues, and of the chapter on service of process in the ABA's forthcoming treatise on International Aspects of US Litigation, and he is the publisher of Letters Blogatory, the Web's first blog devoted to international judicial assistance, which the ABA recognized as one of the best 100 legal blogs in 2012, 2014, and 2015.

2 thoughts on “Case of the Day: McCarty v. Roos

  1. I plead for help with “Clean Hands” [no prior arrests,convictions, no “prior bad act” evidence or ever a hint of inappropriate sexual behavior] because I have lost my right to vote, required to register as a Tier 1 Sex Offender due to year 2003 Japanese conviction of “Quasi Indecent Assault” absent all due process consistent with the concepts of fundamental fairness; extensive psychological and physical torture;repeatedly beaten with punches to stomach,kicked in legs/shins, pushed against walls,head banged against walls/floors, arms twisted/held in judo locks,handcuffed tightly stop blood flow; hair pulled;threatened with a gun by the lead detective; remained in handcuffs for extended periods of time and denied use of toilet; forced to provide culpatory testimony written Japanese which was not understood, under beatings and threat of beating, to prosecutor without lawyer while tied to a chair for multiple hours,as late as 12:00 AM; trial lasted one full year; forced to sit at attention in 7 by 12 foot cell and never allowed to exercise in the cell, eventually suffered two (2) strokes and a heart attack; at trial, no jury trial; evidence access limited by Japanese law; not understanding the charges, because never informed of the nature and the cause of the accusation;not being able to confront one’s accusers, at trial, although 19 years of age, alleged victims testified facing the judge behind a screen; incriminating testimony written in Japanese, not understood because accused could not read Japanese, obtained while being tied to a chair and threatened, those statements that were signed under beatings and threat of beatings were in fact used during the trial; accused compelled to be a witness against self by being forced to testify statements that were not understood, both before prosecutor and detectives as well as before three (3) different judges at probable cause hearings, were in fact signed by the accused; consequently the conviction was based on not being allowed to adequately defend against the spurious charges and being compelled to testify against self; accused not allowed to contact or sit alongside the attorney, because forced to sit at attention between two (2) guards while rope tied around waist on a hard wooden bench; not allowed to talk to the attorney at all during trial; not allowed to take notes during trial; not allowed to present any exculpatory evidence at trial level; not allowed to introduce a rebuttal expert witness testimony nor cross examine the surprise expert witness for the prosecution; initial prosecutor relieved for lies to judge, prosecutor demanded Japanese witness contact American witness to discourage her from testifying with exculpatory evidence; prosecutor forced Japanese friendly witnesses to sign culpatory statements; attorney consultation severely limited and attorney not allowed at any prosecutor or detective interrogations or at other crucial periods of the justice process before Japanese judges at probable cause hearings, where compelled to sign culpatory statements under threat of beatings, written in Japanese,trial; i.e., During all interrogations the accused repeatedly insisted that the acts were not done, however the accused was compelled under threats of further torture and beating to falsely testify via written statements not understood, written in Japanese, that the accused simply did not remember doing those alleged acts; and then subsequently absent all United States Due Process which changed both federal and state legal status.
    Please help me in justice and fairness.
    I am a senior citizen (66); impoverished, honorably serving during time of war, United States Marine Corps Veteran (1964~1968) who is ignorant of the law.
    Nevada Federal Court Case Number 2:11-cv-01538-JCM-RJJ

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