Opinion Summaries: Second Circuit U.S. Court of Appeals
From: Findlaw Opinion Summaries July 18, 21, 2008.
ADMINISTRATIVE LAW, CONSTITUTIONAL LAW, IMMIGRATION LAW
Grant v. US Dep't of Homeland Sec., No. 05-4614
"The circuit court rejects a constitutional challenge to 8 U.S.C. section 1432(a) (1994), which provided that an alien born out of wedlock could obtain derivative citizenship based on the naturalization of his or her mother before the alien turned eighteen but could not obtain derivative citizenship based on the naturalization of his or her father before the alien turned eighteen unless paternity had been established by legitimation"
CRIMINAL LAW & PROCEDURE, EVIDENCE
"A conviction for being a felon in possession of a firearm is vacated and remanded for trial where: 1) the trial court reopened proceedings after the parties' summation and after the jury had been charged and had begun deliberating; 2) the government failed to present an adequate legal explanation that would justify the reopening of the case without a motion from a party; 3) the prosecution elicited testimony that defendant's counsel knew about the evidence in order to discredit counsel; and 4) the late introduction of evidence distorted the importance of the evidence, prejudiced the defense with unfair surprise, and undermined defense counsel's credibility after the defense had already presented its case."
ADMINISTRATIVE LAW, CONTRACTS, DISPUTE RESOLUTION & ARBITRATION, LABOR & EMPLOYMENT LAW, RETAIL
Salmon Run Shopping Ctr. LLC v. Nat'l Labor Relations Bd., No. 06-4961, 06-5510
"An NLRB order requiring a shopping mall operator to allow a union to distribute literature on mall premises is vacated where the mall operator did not improperly discriminate against the union under section 7 of the National Labor Relations Act"
CIVIL PROCEDURE, FAMILY LAW, INTERNATIONAL LAW
Duran v. Beaumont, No. 06-5614
"Dismissal of a motion for the return of petitioner's daughter to Chile is affirmed where, for purposes of the Hague Convention on the Civil Aspects of International Child Abduction, petitioner had only access rights, not custody rights, leaving the district court without jurisdiction to order the return of the child."
CIVIL RIGHTS, CONSTITUTIONAL LAW, CRIMINAL LAW & PROCEDURE, EVIDENCE, HEALTH LAW
"In an inmate's 42 U.S.C. section 1983 action alleging excessive force, inmate's petition for writ of mandamus challenging an order requiring him to produce his mental health records is granted because: 1) a plaintiff does not forfeit the psychotherapist-patient privilege merely by asserting a claim for injuries that do not include emotional damage, or by stating that he suffers from depression or anxiety for which he does not seek damages; 2) a plaintiff may withdraw or formally abandon all claims for emotional damages to avoid forfeiting the psychotherapist-patient privilege; and 3) a party's psychotherapist-patient privilege is not overcome when his mental state is put in issue only by another party."
CRIMINAL LAW & PROCEDURE, EVIDENCE
US v. Lorenzo, No. 07-1435, 07-1855
"Drug importation, distribution, and conspiracy convictions are reversed where no evidence was offered that: 1) either defendant knowingly entered a conspiracy with the specific intent to violate the relevant statutes; or 2) defendant charged with aiding and abetting importation had knowledge or intent to violate the importation statute."
CRIMINAL LAW & PROCEDURE, SECURITIES LAW, WHITE COLLAR CRIME
"In a securities-fraud case, judgment setting aside jury's guilty verdict is affirmed where defendant's conducting of "interpositioning" trades was not deceptive or misleading."
CRIMINAL LAW & PROCEDURE, HABEAS CORPUS
Pena v. United States, No. 06-0218
"Order holding that appellate counsel was not constitutionally ineffective for failing to inform client of his right to file certiorari is affirmed where: 1) counsel was retained, not appointed, and thus the Criminal Justice Act does not apply; 2) petitioner's other arguments were without merit."
HABEAS CORPUS
Nnebe v. United States, No. 05-5713
"Denial of petition for habeas relief, alleging that court-appointed counsel failed to timely petition for certiorari review is vacated and remanded where, construing the appeal as motion to recall the mandate, the motion is granted, the judgment vacated, and the matter is remanded in accordance with Wilkins v. US, 441 U.S. 468 (1979). "
IMMIGRATION LAW
"Petition for review of a denial of asylum and related relief is denied where: 1) the REAL ID Act of 2005 abrogated the circuit court's holding in a prior case that an adverse credibility determination cannot be based on inconsistencies and omissions that are ancillary or collateral to an applicant's claims of persecution; and 2) pursuant to the REAL ID Act, an IJ's adverse credibility was proper in light of the totality of the circumstances."
