Opinion Summaries: Second Circuit U.S. Court of Appeals
Findlaw Summaries: June 11, 2008:
BANKING LAW, CRIMINAL LAW & PROCEDURE, DEBT COLLECTION, SENTENCING
"In a sentence appeal primarily addressing loss calculations under sentencing guideline provisions which govern the "intended loss" of defendant's offenses involving fraudulent loan applications, the circuit court rules that: 1) a defendant should have an opportunity to persuade the sentencing judge that the loss intended was less than the face amount of the loans; and 2) in the event that a trial judge determines that a defendant has proven a subjective intent to cause a loss less than the aggregate amount of the loans, loss calculation should be based on intended losses, unless the actual loss is a higher amount."
CRIMINAL LAW & PROCEDURE, EVIDENCE
US v. Brumer, No. 07-0715, 07-0716
"Defendants' convictions upon guilty pleas to crimes relating to health care matters are affirmed over claims that: 1) their guilty pleas were entitled to be withdrawn because of procedural defects in the acceptance of the pleas, which were conducted by a magistrate judge with defendants' consent; and 2) right to counsel was violated by the district court's refusal to allow substitution to retained counsel"
EVIDENCE, IMMIGRATION LAW
"Petition for review of an order denying petitioner's application for asylum, withholding of removal, and protection under the CAT is denied where: 1) the IJ's adverse credibility determination, based on implausibility, was supported by substantial evidence; and 2) while explanations were available for features of petitioner's account that were found implausible, the overall implausibility of petitioner's account precluded any reasonable adjudicator from concluding that she testified credibly.."
ADMINISTRATIVE LAW, IMMIGRATION LAW
Bah v. Mukasey, No. 07-1715, 07-1994, 07-2120
"Petitions for review of a BIA decision finding petitioners ineligible for withholding of removal based on claims of genital mutilations which they suffered previously in Guinea are granted in part in part where the BIA erred in its application of the withholding of removal regulatory framework to female genital mutilation claims. Under the governing regulations, the fact that an applicant has undergone female genital mutilation in the past cannot, in and of itself, be used to rebut the presumption that her life or freedom will be threatened in the future"
.BANKING LAW, CRIMINAL LAW & PROCEDURE, EVIDENCE, SECURITIES LAW, SENTENCING, WHITE COLLAR CRIME
US v. Leonard, No. 05-5523, 06-0080, 06-2392
"In a criminal prosecution for securities fraud offenses, defendants' convictions are affirmed over claims that: 1) there was insufficient evidence to support a determination that the interests at issue were 'securities' for a conviction of securities related-offenses; and 2) the district court erroneously included a 'no ultimate harm' charge in the jury instructions. However, defendants' sentence, which included an amount of ordered restitution for the victims' loss, is vacated and remanded where the district court erred in its loss calculations by assigning no actual value to misrepresented instruments without considering the possibility of some nominal value non-attributable to defendants' fraud."
CRIMINAL LAW & PROCEDURE, SENTENCING
"Sentence imposed on a defendant for violating the terms of his supervised release is vacated and remanded where the district court: 1) omitted defendant's opportunity for a pre-sentence allocution; and 2) did not otherwise conform with special circumstances which might have avoided the need for a resentence.?
