Articles Posted in U.S. Second Circuit Court of Appeals

On October 1, 2009 I posted an appalant brief for U.S.A v. Justin K. Dorvee on this blog. The Brief was prepared by Paul F. Angioletti, attorney for the defendant-appellant.

Mr. Angioletti has now informed me that the Court of Appeals Second Circuit issued an opinion on the Dorvee appeal on May 11, 2010. In this posting we are including a paragraph from the Second Circuit decision which summarizes the conclusion that the sentence imposed on Dorvee by the District Court was “substantively unreasonable”, therefore vacating the judgment and remanding the case to the District Court for resentencing.;


Citing a series of U.S. Supreme Court rulings, including Blakely v. Washington, 542 U.S. 296 (2004), the Court of Appeals for the Second Circuit ruled on March 1 that a New York state statute that permits stiffer sentences for persistent felony offenders violates defendant’s constitutional rights. In the ruling Judge Ralph K. Winter wrote:

“We hold that the Sixth Amendment Right to a jury trial, applicable to the states as incorporated in the Fourteenth Amendment, prohibits the type of judicial fact finding resulting in enhanced sentences under New York’s {Persistent Felony Offender] statute.”

Reporting on the decision in the April 1, 2010 New York Law Journal Joel Stqashenko writes, “The immediate effect of yesterday’s ruling was not clear. Second Circuit rulings on New York law are not binding on the state’s highest court, the Court of Appeals. The federal panel did not, howeverk that state court rulings upholding the constitutionality of the persistent felony offencer statute have been ‘unreasonable’ in light of seemingly contrary U.S. Supreme Court decisions in similar cases.”

Occasionally we are asked by lawyers preparing briefs if we would consider posting the final product on this blog. In this instance we are posting an appellant brief for the New York Sourt of Appeals Second Circuit case United States v. Justin K. Dorvee. The brief was prepared by Paul J. Angioletti, attorney for the defendant. We are grateful to Mr. Angioletti for submitting his brief for posting on this blog.

The information immediately below is taken from the introductory sections to give you a quick overview of the issues involved. It is followed by a link to the complete text of the brief, which you can upload.


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July 8-13, 2009
ADMIRALTY, CORP. GOVERNANCE, CORPORATION & ENTERPRISE LAW, DEBT COLLECTION Transfield ER Cape Ltd. v. Industrial Carriers Inc., No. 09-1733 In a dispute involving a maritime attachment and garnishment against a corporate alter ego, district court order vacating the attachment is affirmed where, if a corporation is registered with the New York Department of State and therefore found within the district for the purposes of Rule B of the Supplemental Rules for Admiralty and Maritime Claims and Asset Forfeiture Actions, that corporation’s alter egos are also found within the district and the property of those alter egos is not subject to maritime attachment.

CIVIL RIGHTS, LABOR & EMPLOYMENT LAW Harris v. Mills, No. 07-2283 In an employment discrimination action brought under the Americans with Disabilities Act and the Rehabilitation act, district court judgment granting the defendants’ motion to dismiss the plaintiff’s pro se amended complaint is affirmed where: 1) the district court erred in concluding that claims under Title II of the ADA and the Rehabilitation Act cannot be asserted against individuals in their official capacity; 2) plaintiff’s amended complaint fails to state reasonable accommodation claims upon which relief can be granted, as both of his claims are legally insufficient; and 3) plaintiff’s due process rights were not violated, as he was given notice and an opportunity to be heard before his petition for reinstatement was denied, and a New York Civil Practice Law and Rules Article 78 post-deprivation hearing.

ERISA, LABOR & EMPLOYMENT LAW, PER CURIAM Burke v. PricewaterhouseCoopers LLP Long Term Disability Plan, No. 08-1611 In a dispute involving disability insurance benefits, district court judgment dismissing plaintiff’s ERISA claim is affirmed where the court was correct to enforce the limitations period of the benefits plan in its entirety, including its prescribed start date, and to dismiss plaintiff’s claim as time-barred as it was brought after the expiration of the limitations period
CRIMINAL LAW & PROCEDURE, SENTENCING US v. Daye, No. 08-1012 Sentence for being a felon in possession of a firearm is vacated and remanded where: 1) defendant’s prior state conviction for engaging in a sexual act with a minor satisfies the standard articulated in Begay and is therefore a violent felony under the residual clause of the Armed Career Criminal Act; and 2) the District Court must consider of remand whether Defendant’s escape conviction constitutes a conviction for a violent felony under Chambers, and whether his two prior state convictions stem from conduct committed on different occasions for purposes of the Act.
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Second Circuit U.S. Court of Appeals
CONSTITUTIONAL LAW, GOVERNMENT LAW, SANCTIONS Gollomp v. Spitzer, No. 07-0847 District court judgment dismissing plaintiff’s second amended complaint against various state entities and imposing sanctions on his attorneys is affirmed where: 1) the New York State Unified Court System is an arm of the state, and thus the lawsuit against it is barred as it is entitled to Eleventh Amendment sovereign immunity; and 2) the court did not abuse its discretion in imposing sanctions as plaintiff’s counsel acted in bad faith, plaintiff’s claims were frivolous and there was nothing improper in recovering reasonable attorney’s fees from plaintiff’s counsel as a form of sanctions
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June 3-4, 2009.

CIVIL PROCEDURE, EDUCATION LAW, INJURY AND TORT LAW O’Connor v. Pierson , No. 07-1758 In an action brought by a public school teacher against a school, alleging various state and federal tort claims, district court’s of defendant’s motion for summary judgment on grounds that plaintiff’s claim is barred by res judicata is affirmed where: 1) the state court decision against plaintiff on his intentional infliction claim was decided on the merits and bars his pursuit of the substantive due process claims in federal district court; 2) the parties in the state and federal actions are in privity for purposes of res judicata; and 3) plaintiff had a fair and adequate opportunity to litigate his claims, even if they may have eventually been separated from one another.

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June 1-2, 2009.

CRIMINAL LAW & PROCEDURE, SENTENCING US v. Timewell, No. 07-4587 Sentence for drug crimes and making false statements to federal agents is vacated and remanded where the district court erred in neglecting to answer the question posed by the Crosby remand of defendant’s original sentence of whether the court would have imposed a materially different sentence under the post-Booker sentencing regime based on the circumstances at the time of the original sentence, and this error was not harmless

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May 14, 2009.

CRIMINAL LAW & PROCEDURE US v. Ness, No. 05-440 Conviction for conspiring to commit three money laundering offenses is reversed where: 1) a reasonable jury could not find beyond a reasonable doubt that the purpose of defendant’s transportation of narcotics proceeds was to conceal the nature, location, or source of the narcotics proceeds; and 2) the government failed to prove that defendant violated 18 U.S.C. sec. 1957(a), as it did not present sufficient evidence that a financial institution was involved. .

May 12-13, 2009

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CIVIL PROCEDURE Yakin v. Tyler Hill Corp. , No. 07-5300 District court order enforcing a forum selection clause and remanding the case to state court is affirmed where there is no ambiguity in the forum selection clause, as a reasonable person reviewing the clause would conclude the parties intended the litigation take place in an appropriate venue in Nassau County, where there is a state court but no district court.

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CRIMINAL LAW & PROCEDURE, SENTENCING US v. Borden , No. 08-1625 Sentence for drug crimes is affirmed where the district court did not abuse its discretion in denying defendant a sentence reduction where: 1) defendant’s sentence was appropriate based upon his extensive criminal history and the need to protect society; and 2) the court did not erroneously rely upon its earlier decision not to resentence defendant as a the basis for the present denial.

CIVIL PROCEDURE, PER CURIAM, SECURITIES LAW Esquire Trade & Fin., Inc. v. CBQ, Inc., No. 07-1701 In an action for breaches of debenture-related agreements and for securities fraud, district court’s grant of summary judgment for defendant on grounds that plaintiff’s claims were barred by res judicata is vacated and remanded where the order dismissing the earlier action between plaintiff and a third party does not operate as a res judicata bar to the claims raised in the present action as the required privity between the third party and defendant is not present. Read more…