Criminal Law Library Blog

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

US v. Crawford, No. 06-5059

"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 re Sims, No. 06-0644

"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

US v. Finnerty, No. 07-1104

"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

Lin v. Mukasey , No. 07-5211

"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."

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Posted In: Constitutional Law , Court Decisions , Criminal Law and Justice , U.S. Second Circuit Court of Appeals

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U.S. 1st Circuit Court of Appeals, July 16, 2008
Pineda v. Watts, No. 07-2462
In an action brought under 42 U.S.C. section 1983 alleging that the defendants' failure to supervise resulted in arrests without probable cause, illegal warrantless searches, and use of excessive force, summary judgment for defendants is affirmed where plaintiffs failed to establish that the actions of defendants amounted to supervisory encouragement, condonation or acquiescence, or gross negligence amounting to deliberate indifference

U.S. 2nd Circuit Court of Appeals, July 17, 2008
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.

U.S. 2nd Circuit Court of Appeals, July 18, 2008
In re Sims, No. 06-0644
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.

U.S. 3rd Circuit Court of Appeals, July 15, 2008
Startzell v. Philadelphia, No. 07-1461
In an action stemming from the arrest of plaintiffs-protestors at a street festival in Philadelphia, summary judgment for defendants is affirmed where: 1) defendant-event organizer had a First Amendment right to exclude plaintiffs-Repent America from its permitted event, despite the event's being held on public streets and sidewalks; 2) city properly imposed narrowly-tailored restrictions upon plaintiff's protest in a content-neutral manner; 3) plaintiffs had no valid equal-protection claim as to disparate police treatment of their protest and defendants' efforts to drown out that protest because the parties could not be regarded as similarly situated; 4) plaintiffs' Fourth Amendment rights were not violated when they were arrested for disorderly conduct, even though they were engaged in protected speech at the time; 5) a 42 U.S.C. section 1983 claim failed as there was no underlying breach of plaintiffs' constitutional rights; 6) there was no evidence to support plaintiffs'! conspiracy claim.

U.S. 3rd Circuit Court of Appeals, July 18, 2008
US v. Stevens, No. 05-2497
Conviction for selling depictions of animal cruelty is vacated, and the statute itself, 18 U.S.C. section 48, is declared unconstitutional, where: 1) the criminalization of depictions of animal cruelty, rather than of the acts of cruelty themselves, is a content-based regulation on speech; 2) the speech in question does not constitute a new category of unprotected speech; and 3) the government has not shown that the statute is narrowly tailored, using the least restrictive means, to achieve an important governmental interest.

U.S. 4th Circuit Court of Appeals, July 15, 2008
Al-Marri v. Pucciarelli, No. 06-7427
In a closely divided opinion, denial of a petition for a writ of habeas corpus challenging petitioner's military detention as an enemy combatant is reversed where: 1) Congress has empowered the President to hold the petitioner as an enemy combatant if the allegations against him are true; nevertheless, 2) assuming Congress has empowered the President to detain petitioner as an enemy combatant provided its allegations against him are true, petitioner has not been afforded sufficient process to challenge his designation as an enemy combatant.

U.S. 5th Circuit Court of Appeals, July 14, 2008
James v. Texas Collin County, No. 07-40566
In a suit alleging violations of plaintiff's First Amendment rights arising from the termination of his employment after he lost his bid to become the Republican nominee for a county commissioner, summary judgment for defendants is affirmed where: 1) there was no evidence to find that plaintiff was terminated by the county commissioners or by his supervisor in their individual capacities; 2) plaintiff presented no evidence that he was terminated for any First Amendment related reason other than for campaigning on county property; and 3) county's policies prohibiting political campaigning by their employees while working and under other circumstances is viewpoint neutral and limited in scope. ..

U.S. 5th Circuit Court of Appeals, July 18, 2008
LA ex rel Caldwell v. Allstate Ins. Co., No. 08-30465
In a parens patriae action alleging violations of Louisiana's antitrust laws, denial of plaintiff's motion to remand the case back to state court after removal to federal court pursuant to the Class Action Fairness Act is affirmed where: 1) the Louisiana attorney general has power to bring parens patriae antitrust actions and possesses broad powers to vindicate the interests of the state; 2) the policyholders and not the state are the real parties in interest due to the state's request for treble damages; and 3) plaintiff waived its Eleventh Amendment immunity.

U.S. 6th Circuit Court of Appeals, July 17, 2008
Burlison v. US, No. 06-6369
Judgments finding that plaintiffs-landowners have an easement by reservation over a field-access road crossing a national wildlife refuge, and that the government lacks power under the National Wildlife Refuge System Administration Act to regulate that easement, are affirmed in part and reversed in part where: 1) state law on parol evidence does not prevent a court from considering letters expressing prior deedholders' intent to reserve an express easement over the road, 2) the Property Clause gives Congress the power to regulate privately held easements over federal land, and 3) the Refuge Act properly grants the Fish and Wildlife Service the power to impose reasonable regulations on the use of the easement. .

U.S. 7th Circuit Court of Appeals, July 16, 2008
Davis v. Cook County, No. 06-1534
In a nurse's suit against county employer alleging, inter alia, that defendants violated her First Amendment rights and defamed her in violation of 42 U.S.C. section 1983 and state law, summary judgment and dismissal rulings against plaintiff are affirmed where: 1) the speech upon which plaintiff based her case was made pursuant to her duties as a public employee, and thus was not constitutionally protected; and 2) a decision to decline supplemental jurisdiction over the defamation claim was not an abuse of discretion. ..

U.S. 7th Circuit Court of Appeals, July 17, 2008
Corey H. v. Bd. of Educ.of the City of Chicago, No. 07-2084
In the context of enforcing a consent decree governing the placement of disabled students in Chicago schools, a district court order is not ripe for review where defendant-school board has not shown that the order will necessarily result in harm. .

U.S. 8th Circuit Court of Appeals, July 15, 2008
US v. Benitez, No. 06-3763
A conviction and sentence for possession and conspiracy to possess methamphetamine with intent to distribute is affirmed over claims of error regarding: 1) the legality and length of a stop; 2) the lack of consent to a search because it was not given knowingly and voluntarily; 3) the admissibility of evidence of a prior conviction for cocaine possession; 4) the sufficiency of the evidence supporting the conviction; and 5) the constitutionality of section 3E1.1 of the Sentencing Guidelines. .

U.S. 9th Circuit Court of Appeals, July 16, 2008
Howell v. Polk, No. 06-16418
In a 42 U.S.C. section 1983 action alleging, inter alia, that police unconstitutionally executed a knock-and-announce search warrant by failing to wait long enough for plaintiffs to open the door before breaking it down, judgment pursuant to a jury verdict for defendants is affirmed where: 1) there was no error in submitting to the jury the issue of whether execution of the search warrant was reasonable given the totality of the circumstances; and 2) the district court did not err in denying plaintiffs summary judgment on their claim of unlawful entry.

U.S. 10th Circuit Court of Appeals, July 15, 2008
Amundsen v. Jones, No. 06-4310
In an action brought under 42 U.S.C. section 1983 for violations of plaintiff's Fourth Amendment right to be free from unreasonable searches and seizures, denial of summary judgment for defendant based on qualified immunity is reversed where: 1) there was jurisdiction to consider the appeal; 2) plaintiff's erratic driving created reasonable suspicion of driving under the influence and entitled the defendant to conduct a standard roadside sobriety test; and 3) plaintiff consented to toxicology exams conducted after the stop.

Supreme Court of California, July 14, 2008
Silicon Valley Taxpayers Ass'n, Inc. v. Santa Clara County Open Space Authority, No. S136468
County agency's imposition of a countywide assessment to fund a program to acquire, improve, and maintain open space lands is subject to independent review by court under Proposition 218, and the assessment is invalid because it does not comply with the special benefit and proportionality requirements for such assessments under article XIII D of the California Constitution

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From: Findlaw Breaking Documents, June 25, 2008.

Justices Reject Death Penalty for Child Rape Convictions

KENNEDY V. LOUISIANA

"(U.S. Supreme Court, June 25, 2008) - In a 5-4 ruling the U.S. Supreme Court rules that the 'death penalty is not a proportional punishment for the rape of a child '."

Supreme Court Slashes Punitive Damages in Exxon Valdez Oil Spill Case

EXXON SHIPPING V. BAKER

"(U.S. Supreme Court, June 25, 2008) - In an 8-0 decision, the Supreme Court reduce the $2.5 billion punitive damage award in the Exxon Valdez oil spill case to $500,000."

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Posted In: Constitutional Law , Court Decisions , Criminal Law and Justice , The Documents Corner , U.S. Supreme Court

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To view these cases distributed by Findlaw.com you must first sign in to Findlaw.com. "Findlaw summaries [may] include opoinions that have not yet been released for publication and may be subject to modification, correction or withdrawl

U.S. Supreme Court, June 19, 2008
Indiana v. Edwards, No. 07-208
In the context of the Sixth Amendment right for defendants to represent themselves, the Constitution permits states to insist upon representation by counsel for those competent enough to stand trial under applicable precedent but who suffer from severe mental illness to the point where they are not competent to conduct trial proceedings by themselves. .

U.S. 1st Circuit Court of Appeals, June 19, 2008
Asociacion de Periodistas de Puerto Rico v. Mueller, No. 07-2196
In an action alleging the FBI's conduct against a group of journalists during the execution of a search warrant violated the First and Fourth Amendments, summary judgment for the government based on qualified immunity is affirmed on all First Amendment claims, but reversed as to individual plaintiffs' excessive force claims where: 1) plaintiffs failed to establish a violation of their First Amendment via governmental interference with their ability to gather news in an area inaccessible to the public at large; but 2) because protections under qualified immunity require individualized assessments of specific circumstances underlying the injuries sustained by each plaintiff, summary judgment on qualified immunity grounds was premature in light of an evidentiary gap. ..

U.S. 2nd Circuit Court of Appeals, June 18, 2008
Ali v. Mukasey, No. 06-1469
An order terminating petitioner's grant of deferred removal under the CAT is vacated and remanded where the petitioner was deprived of his right to a fair hearing by the IJ's apparent bias against him and reliance on unfounded assumptions about homosexuals

U.S. Supreme Court, June 18, 2008
Boumediene v. Bush, No. 06-1195, 06-1196
In habeas proceedings brought by aliens detained at Guantanamo after being captured in Afghanistan or elsewhere abroad and designated enemy combatants by tribunals, the Court rules that petitioners have the constitutional privilege of habeas corpus. The procedures for review of the detainees' status provided by the Detainee Treatment Act of 2005 are not an adequate and effective substitute for habeas corpus, and consequently, section 7 of the Military Commissions Act of 2006 (MCA), operates as an unconstitutional suspension of the writ.

U.S. 6th Circuit Court of Appeals, June 17, 2008
Lanman v. Hinson, No. 06-2263
In an action brought alleging violations of a decedent's constitutional rights under 42 U.S.C. section 1983, abuse or neglect in violation of Michigan law, and assault and battery arising after he stopped breathing as a result of defendants' attempt to restrain him at a psychiatric hospital, denial of defendant's motion for summary judgment is affirmed for certain defendants and reversed for others where: 1) the Fourteenth Amendment governed the claim since it allows for balancing an individual's liberty interest against the state's asserted reasons for restraining the individual's liberty while in its care; and 2) the district court failed to separately analyze the constitutionality of the individual actions of each defendant.

U.S. 6th Circuit Court of Appeals, June 19, 2008
Gabbard v. FAA, No. 07-3977
Petition for review of an order by the FAA which revoked petitioner's airman and medical certificates after he failed a drug test and after the FAA concluded that he had piloted a jet with a prohibited drug in his system is denied where: 1) the evidence presented by the FAA to an ALJ was enough for a reasonable mind to find that petitioner piloted a chartered jet with cocaine metabolites in his system; 2) petitioner failed to properly raise the issue that the Board failed to treat inadvertent ingestion of cocaine as a legitimate medical explanation for the test results; and 3) there was no violation of his Sixth Amendment right to effective assistance of counsel.

U.S. 7th Circuit Court of Appeals, June 18, 2008
Taake v. County of Monroe, No. 07-2620
In a suit brought under 42 U.S.C. section 1983 to attempt to force defendant-county to sell plaintiff a piece of land that he argued the county contractually agreed to sell him, summary judgment for defendant is vacated and remanded with instructions to dismiss the case without prejudice as there was no basis for federal jurisdiction where: 1) no substantive constitutional property interest arises simply because a state actor breaks a contract with a state citizen; and 2) plaintiff was not asking for a procedural due process remedy since he was interested in specific performance of the land sale, and not notice and a hearing on the decision not to sell him the land.

U.S. 8th Circuit Court of Appeals, June 16, 2008
Kutten v. Bank of America, N.A., No. 07-3565
Dismissal of plaintiff's class action claims as preempted by the Securities Litigation Uniform Standards Act of 1998 is affirmed where: 1) plaintiffs alleged the same injuries as claimed by parties in a prior Eighth Circuit case, wherein the issue of preemption had already been ruled upon; and 2) plaintiffs failed to distinguish their case from the previous case.

U.S. 8th Circuit Court of Appeals, June 20, 2008
Duluth, Winnipeg, and Pac. Railway Co. v. City of Orr, No. 07-2689
In an action seeking a declaratory judgment that the Federal Railway Safety Act preempts a state law which limited the speed of trains passing through parts of the state, judgment finding that the special law fell within the savings clause of the federal preemption statute is reversed where there was no evidence of local conditions amounting to an essentially local safety hazard that could not be adequately encompassed within a national uniform standard. .

U.S. 9th Circuit Court of Appeals, June 20, 2008
Nelson v. Nat'l Aeronautics & Space Admin., No. 07-56424
In an action brought by scientists, engineers, and administrative support personnel at the Jet Propulsion Laboratory (JPL) challenging NASA's recently adopted requirement that "low risk" contract employees like themselves submit to in-depth background investigations, denial of plaintiffs' request for a preliminary injunction is reversed and remanded where they raised serious questions as to the merits of their informational privacy claim, and the balance of hardships tipped sharply in their favor. (Substituted opinion)

U.S. 11th Circuit Court of Appeals, June 18, 2008
Johnston v. Tampa Sports Auth., No. 06-14666
In an action brought by a plaintiff claiming that pat-down searches performed on him before he entered a football stadium to attend NFL games violated his rights under the constitutions of Florida and United States, judgment in favor of plaintiff is reversed and remanded where: 1) the record is replete with evidence that plaintiff had advance notice of the stadium entry search policy to support his valid consent of the search; and 2) the district court erred in concluding that unconstitutional condition doctrine invalidated plaintiff's consent, as the government had no role in formulating or mandating a pat-down search policy required by a private entity such as the NFL.

U.S. D.C. Circuit Court of Appeals, June 20, 2008
Johnson v. Dist. of Columbia, No. 06-7136, 06-7180
In a suit brought under 42 U.S.C. section 1983 for use of excessive force in an unreasonable seizure under the Fourth Amendment, as well as common law claims of police brutality, assault and battery, and intentional infliction of emotional distress when a police officer was mistaken for a criminal when he unwittingly landed in the middle of a drug bust, summary judgment in favor of defendant is reversed as to section 1983 claims and affirmed as to the common law claims where: 1) defendant was not entitled to qualified immunity against the section 1983 claims because of conflicting deposition testimony, which gave rise to genuine issues of fact material to both the section 1983 claim and the qualified immunity defense; and 2) the Police and Firefighters Retirement and Disability Act barred plaintiff's common law claims

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Findlaw Opinion Summaries June 23, 2008.

CIVIL PROCEDURE, COMMERCIAL LAW, COMMUNICATIONS LAW, CONTRACTS

Sprint Communications Co., L.P. v. APCC Servs., Inc., No. 07-552

"An assignee of a legal claim for money owed has standing to pursue that claim in federal court, even when the assignee has promised to remit the proceeds of the litigation to the assignor".

CIVIL RIGHTS, CONSTITUTIONAL LAW, CRIMINAL LAW & PROCEDURE, GOVERNMENT LAW

Rothgery v. Gillespie County, No. 07-440

"A criminal defendant's initial appearance before a judicial officer, where he learns the charge against him and his liberty is subject to restriction, marks the start of adversary judicial proceedings that trigger attachment of the Sixth Amendment right to counsel. The Court rules that attachment of the right does not also require that a prosecutor (as distinct from a police officer) be aware of such initial proceeding or be involved in its conduct"

CRIMINAL LAW & PROCEDURE, SENTENCING

Greenlaw v. US, No. 07-330

"In a criminal case in which, over the government's objection, a district court made an error when calculating defendant's sentence, a circuit court's decision imposing a longer sentence on defendant after he appealed is reversed where, absent a government appeal or cross-appeal, the sentence defendant received should not have been increased"

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Posted In: Constitutional Law , Criminal Law and Justice , U.S. Supreme Court

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Findlaw Summaries June 23-24, 2008.

CRIMINAL LAW & PROCEDURE, SENTENCING

US v. Jones, No. 05-5879

"Sentence for unlawful possession of cocaine base is vacated in part where ambiguities in the sentencing record suggested that the district court was uncertain about its authority with respect to the Guideline rules as provided under Kimbrough and Gall"

CIVIL PROCEDURE, COMMERCIAL LAW, CONSTITUTIONAL LAW, PROPERTY LAW & REAL ESTATE, SECURITIES LAW

Eberhard v. Marcu, No. 06-4536

I"n a case involving the authority of a federal securities receiver over property claimed by a third party, the circuit court rules that: 1) a receiver cannot employ a state's commercial law to set aside a conveyance when representing only the transferor; and 2) a third party is entitled to a jury trial under the Seventh Amendment to determine ownership of property claimed by a receiver"

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Posted In: Constitutional Law , Court Decisions , U.S. Second Circuit Court of Appeals

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Findlaw Opiinion Summaries June 13 - 18, 2008

ADMINISTRATIVE LAW, EVIDENCE, IMMIGRATION LAW

Li v. Mukasey, No. 04-3985

"Petition for review of BIA decision denying petitioner's applications for asylum, withholding of removal, and relief under the CAT is granted where: 1) the decision was premised on an adverse credibility finding which failed to comport in certain respects with subsequently announced rulings by the court; and 2) it could not be confidently predicted that the BIA would have reached the same decision absent these errors."

CRIMINAL LAW & PROCEDURE

Parisi v. US, No. 06-1148

"Judgment denying habeas relief is affirmed where, despite the concern that stipulated "ends-of-justice" continuances may not be consistent with Zedner v. US 547 U.S. 489 (2006), defendant's attorney was not constitutionally ineffective in failing to anticipate Zedner and the potential for an extension of its holding to stipulated continuances under the Speedy Trial Act."

BANKRUPTCY LAW, CIVIL PROCEDURE, CORP. GOVERNANCE, CORPORATION & ENTERPRISE LAW, REMEDIES, SERVICES

In re: CBI Holding Co., Inc., No. 04-5972, 04-6300

"In bankruptcy proceedings wherein plaintiff (the court appointed disbursing agent of a Plan of Reorganization) brought claims against defendants-accountants concerning professional services rendered to corporate bankruptcy debtor, the circuit court finds that: 1) plaintiff had standing to assert debtor's claims under the "adverse interest" exception to the normal rule that a claim against a third party for defrauding a corporation with the cooperation of its management accrues to creditors rather than to the guilty corporation; 2) plaintiff had standing to bring claims as the assignee of interests which the assignor acquired as a pre-bankruptcy creditor; 3) all of the claims pressed by plaintiff were "core proceedings" which were covered by the language of 28 U.S.C. section 157(b) and integrally related to the Proof of Claim which defendant voluntarily submitted against the bankruptcy estate; and 4) defendant waived its right to a jury trial on plaintiff's claims when it submitted its Proof of Claim against the bankruptcy estate and subjected itself to the equitable powers of the bankruptcy court."

CRIMINAL LAW & PROCEDURE, SENTENCING

US v. Whitley, No. 06-0131

"A sentence imposing concurrent terms of 282 months for a Hobbs Act robbery and a career criminal firearms possession violation, plus a consecutive mandatory minimum term of 10-years for discharging a firearm, is remanded for resentencing where the consecutive minimum 10-year sentence for discharge of firearm is inapplicable to a defendant subjected to a higher 15-year minimum sentence as an armed career criminal"

CONSTITUTIONAL LAW, ETHICS & DISCIPLINARY CODE, ETHICS & PROFESSIONAL RESPONSIBILITY, EVIDENCE, IMMIGRATION LAW

Ali v. Mukasey, No. 06-1469

"An order terminating petitioner's grant of deferred removal under the CAT is vacated and remanded where the petitioner was deprived of his right to a fair hearing by the IJ's apparent bias against him and reliance on unfounded assumptions about homosexuals"

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Posted In: Commentary and Opinion , Constitutional Law , Criminal Law and Justice , Lawyers and Law Librarians, News Humor Etc. , News from Organizations

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From: Findlaw Opinion Summaries June 12, 2008:

ADMINISTRATIVE LAW, AEROSPACE & DEFENSE, CIVIL PROCEDURE, GOVERNMENT LAW, TRADE SECRETS

Taylor v. Sturgell, No. 07-371

"In a case involving two friends' and antique aircraft enthusiasts' separate Freedom of Information Act (FOIA) requests asking the FAA for copies of technical documents related to a vintage airplane, summary judgment finding petitioner's suit barred by claim preclusion based on his friend's prior suit is vacated and remanded where: 1) the Court disapproves the doctrine of preclusion by "virtual representation"; and 2) based on the record as it stood, the judgment against petitioner's friend in the prior action did not bar petitioner from maintaining the suit at hand."

CIVIL PROCEDURE, CLASS ACTIONS, CRIMINAL LAW & PROCEDURE, DEBT COLLECTION, GOVERNMENT LAW, INTERNATIONAL LAW, JUDGMENT ENFORCEMENT, PROPERTY LAW & REAL ESTATE

Republic of the Philippines v. Pimentel, No. 06-1204

I"n an interpleader action commenced to determine the ownership of property allegedly stolen by Ferdinand Marcos when he was the President of the Republic of the Philippines, a circuit court's decision finding that the action could proceed without the Republic of the Philippines and a Philippine Commission as parties, which had successfully asserted sovereign immunity and been dismissed from the action, is reversed where: 1) the circuit court gave insufficient weight to the foreign sovereign status of those two parties; and 2) it further erred in reaching and discounting the merits of their claims"

CONSTITUTIONAL LAW, CRIMINAL LAW & PROCEDURE, GOVERNMENT LAW, HABEAS CORPUS, MILITARY LAW

Boumediene v. Bush, No. 06-1195, 06-1196

"In habeas proceedings brought by aliens detained at Guantanamo after being captured in Afghanistan or elsewhere abroad and designated enemy combatants by tribunals, the Court rules that petitioners have the constitutional privilege of habeas corpus. The procedures for review of the detainees' status provided by the Detainee Treatment Act of 2005 are not an adequate and effective substitute for habeas corpus, and consequently, section 7 of the Military Commissions Act of 2006 (MCA), operates as an unconstitutional suspension of the writ"

.CRIMINAL LAW & PROCEDURE, HABEAS CORPUS, INTERNATIONAL LAW, MILITARY LAW

Munaf v. Geren, No. 06-1666

"In cases concerning the availability of habeas corpus relief arising from an international coalition force's detention of American citizens who voluntarily traveled to Iraq and were alleged to have committed crimes there, the Court rules that the habeas statute extends to American citizens held overseas by American forces operating subject to an American chain of command, even when those forces are acting as part of a multinational coalition. However, district courts may not exercise their habeas jurisdiction to enjoin the United States from transferring individuals alleged to have committed crimes and detained within the territory of a foreign sovereign to that sovereign's government for criminal prosecution."

CRIMINAL LAW & PROCEDURE, SENTENCING

Irizarry v. US, No. 06-7517

"Federal Rule of Criminal Procedure 32(h), which states that "[b]efore the court may depart from the applicable sentencing range on a ground not identified . . . either in the presentence report or in a party's pre-hearing submission, the court must give the parties reasonable notice that it is contemplating such a departure," does not apply to a variance from a recommended Guidelines range."

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From: Findlaw Opinion Summaries June 11, 2008.

CONSTITUTIONAL LAW, CRIMINAL LAW & PROCEDURE, GOVERNMENT LAW

In the Matter of Feola v. Carroll, No. 83

"When a police officer is convicted of a misdemeanor with elements which constitute willful deceit, calculated disregard for honest dealings, intentional dishonesty or corruption of purpose, an oath of office violation has occurred and the position becomes vacant without the need for a due process disciplinary hearing. Further, a conviction for endangering the welfare of a child under Penal Law section 260.10(1) conclusively establishes a lack of moral integrity"

CONTRACTS, JUDGMENT ENFORCEMENT, LABOR & EMPLOYMENT LAW, PROPERTY LAW & REAL ESTATE

Cox v. NAP Constr. Co., Inc., No. 84, 85

"When a contractor has promised to pay its workers the prevailing wages required by the United States Housing Act, the workers may sue under state law to enforce the promise"

ETHICS & DISCIPLINARY CODE, ETHICS & PROFESSIONAL RESPONSIBILITY, PER CURIAM, SANCTIONS

In the Matter of Honorable Robert M. Restaino, No. 82

"A judge is sanctioned and removed from office based on his actions when, after a device rang in his courtroom and its owner could not be determined, he arbitrarily revoked or denied the recognizance release status of 46 individuals present in his courtroom. Despite the judge's proffered psychological evidence of suffering from an anxious state of mind due to a strained marriage and recognizable prior service record, the public confidence which had been lost was irreparable"

INJURY AND TORT LAW, SPORTS LAW

Roberts v. Boys and Girls Republic, Inc., No. No. 134 SSM 11

"Dismissal of plaintiff's complaint for injuries sustained when a baseball player in an off-field on-deck batting circle struck her with a bat is affirmed where plaintiff assumed the risk of her injuries, as she concededly observed batting equipment and players swinging bats in the area which the accident occurred"

INJURY AND TORT LAW, TRANSPORTATION

Jones v. Bill , No. 89

"For the purposes of the federal Graves Amendment, an action commences on the date of the initial filing of the summons and complaint."

INSURANCE LAW

Fair Price Med. Supply Corp. v. Travelers Indem. Co., No. 105

"While an insurer is entitled to contest a claimant's claim as fraudulent, it is required to do so within the rules of the "no-fault system" which impose tight deadlines"

CONSTRUCTION, CONTRACTS, INSURANCE LAW, LABOR & EMPLOYMENT LAW, PROPERTY LAW & REAL ESTATE, WORKERS' COMPENSATION

Preserver Ins. Co. v. Ryba, No. 97

"In a coverage dispute over a jobsite injury allegedly sustained by a construction worker presenting the question of whether an employer's liability insurance coverage is unlimited or limited to $100,000 as specified in a standard form workers' compensation and employers' liability contract policy, the court of appeals finds that employer's liability is limited under the circumstances of this case where: 1) from a contractual interpretation standpoint, nothing in the underlying policy suggested unlimited liability; and 2) from a legal perspective, none of the applicable state laws provided for an unlimited employers' liability insurance."

CONTRACTS, LABOR & EMPLOYMENT LAW

Pachter v. Bernard Hodes Group, Inc., No. 86

"An 'executive' falls within the ambit of the protections afforded to 'employees' under sections 190 and 193 of the Labor Law. Also, the determination of when a commission is earned is governed by the parties' express or implied agreement."

CRIMINAL LAW & PROCEDURE

People v. Finley, No. 87, 88

"In the context of detention facilities, the small amounts of marijuana at issue, substantially less than 25 grams, were not "dangerous contraband" under Penal Law sections 205.00 (4) and 205.25 (2)."

DEBT COLLECTION, PROPERTY LAW & REAL ESTATE, TAX LAW

"In the Matter of Mill Creek Phase 1 Staten Island Bluebelt Sys., No. 95

The interest due and owing on a subject tax lien continues to accrue at the interest rate of 18%, pursuant to Administrative Code sections 11-224 and 11-319(6), from the vesting of title in the City of New York until the date of full payment of the lien."

ELECTIONS, GOVERNMENT LAW

In the Matter of Master v. Pohanka, No. 91

"Election Law section 6-120(3) allows a political party's state committee to vest itself with the authority to issue certificates of authorization for county, city or local public offices"

ELECTIONS, GOVERNMENT LAW

In the Matter of Conroy v. State Comm. of the Independence Party of New York, No. 90

I"n a declaratory judgment action seeking to invalidate an party rule on grounds that the rule conflicted with Election Law section 6-120(3), the court of appeals finds that the rule at issue does not conflict with Election Law section 6-120(3) insofar as it vests in the Executive Committee of the State Committee the authority to designate or nominate non-party members for 'non-citywide' public offices in the City of New York"

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Posted In: Constitutional Law , Criminal Law and Justice , New York State Court Of Appeals

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Findlaw Summaries: June 11, 2008:

BANKING LAW, CRIMINAL LAW & PROCEDURE, DEBT COLLECTION, SENTENCING

US v. Confredo, No. 06-3201

"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

Li v. BCIS, No. 07-0963

"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

US v. Gonzalez, No. 07-4824

"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.?

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Posted In: Constitutional Law , Criminal Law and Justice , U.S. Second Circuit Court of Appeals

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From: Findlaw Opinion Summaries June 6, 9, 2008:

CRIMINAL LAW & PROCEDURE, EVIDENCE, SENTENCING

US v. Thompson, No. 05-5255

"In a prosecution for various offenses related to a narcotics trafficking conspiracy and use of firearms in connection therewith, defendants' conviction is affirmed over challenges regarding: 1) the seating of the jury and a reverse-Batson challenge; 2) the sufficiency of evidence; 3) the introduction of a tape recording of an attempted crack sale; 4) an evidentiary ruling; and 5) the government's alleged withholding of Brady material. However, defendants' sentences are remanded for reconsideration on the issue of the crack/powder cocaine disparity in light of Kimbrough".

CORP. GOVERNANCE, CORPORATION & ENTERPRISE LAW, ERISA, LABOR & EMPLOYMENT LAW, PER CURIAM, REMEDIES

Burke v. Hamilton Equip. Installers, Inc., No. 06-5249, 06-5425

"Judgment finding one corporation not liable for the ERISA debt liability of another corporation is affirmed where the underlying relationship between the companies did not establish a sufficient nexus for derivative liability on the grounds of either an alter-ego or a veil-piercing theory."

ADMINISTRATIVE LAW, CIVIL PROCEDURE, LABOR & EMPLOYMENT LAW, TRANSPORTATION

Ollman v. Special Bd. of Adjustment No. 1063, No. 05-1706

"In an action instituted by a plaintiff-employee alleging that his former employer, labor union, and a special board of adjustment violated the Railway Labor Act, dismissal of plaintiff's claims on summary judgment is affirmed where: 1) plaintiff failed to show the existence of a genuine issue of material fact negating his union's authority to represent him before the board, and it was undisputed that union received "due notice" of the board proceeding; 2) whereas a special adjustment board's awards may be reviewed by a district court, a board is not a proper party to petition for review; and 3) plaintiff's claim against the union for breaching its duty of fair representation had already been dismissed in a prior decision."

ETHICS & PROFESSIONAL RESPONSIBILITY, EVIDENCE, INJURY AND TORT LAW, PROFESSIONAL MALPRACTICE

Rubens v. Mason, No. 06-1213

"In an attorney malpractice suit, summary judgment for attorney-defendants is vacated and remanded where the district judge appeared to have focused unnecessarily on the issue of negligence while failing to address the element of causation."

ADMINISTRATIVE LAW, CIVIL PROCEDURE, COMMERCIAL LAW, CONSTITUTIONAL LAW

New York Civil Liberties Union v. Grandeau, No. 06-4895

"In a First Amendment case stemming from a state lobbying commission's inquiry into whether plaintiff-organization incurred reportable lobbying expenses in connection with a billboard promoting awareness of free speech issues in a private shopping mall, summary judgment for defendant is affirmed where: 1) although the district court erred in finding that the case was moot because the organization's complaint challenged an alleged Commission policy beyond the specific billboard controversy; nevertheless, 2) the policy challenge was not ripe for judicial review."

EVIDENCE, IMMIGRATION LAW

Leng v. Mukasey, No. 06-2477

"In order to establish eligibility for relief based exclusively on activities undertaken after his arrival in the United States, an alien must make some showing that authorities in his country of nationality are: 1) aware of his activities; or 2) likely to become aware of his activities."

CIVIL PROCEDURE, CIVIL RIGHTS, GOVERNMENT LAW, PER CURIAM

Ricci v. Destefano, No. 06-4996

"In an action arising from an invalidated Civil Services Board exam with racially disproportionate impact, grant of defendants' motion for summary judgment is affirmed where invalidating the exam results of dyslexic examinee plaintiff did not provide him a viable Title VII claim, as the Board was simply trying to fulfill its obligations under Title VII in refusing to validate the exams"

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Posted In: Constitutional Law , Court Decisions , Criminal Law and Justice , U.S. Second Circuit Court of Appeals

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U.S. Supreme Court, May 27, 2008
Riley v. Kennedy, No. 07-77
In a case concerning section 5 of the Voting Rights Act of 1965, the Court rules that a covered state need not obtain fresh preclearance required by section 5 in order to reinstate an election practice prevailing before the enactment of an election law struck down by the state's supreme court. Read more...

U.S. Supreme Court, May 27, 2008
Gomez-Perez v. Potter, No. 06-1321
A federal employee who is a victim of retaliation due to the filing of a complaint of age discrimination may assert a claim under the federal-sector provision of the Age Discrimination in Employment Act of 1967 (ADEA), 29 U.S.C. section 633a(a). Read more...

U.S. Supreme Court, May 27, 2008
CBOCS W., Inc. v. Humphries, No. 06-1431
The longstanding civil rights law, 42 U.S.C. section 1981, encompasses retaliation claims.

U.S. 2nd Circuit Court of Appeals, May 29, 2008
Doninger v. Niehoff, No. 07-3885
"In proceedings involving an application to preliminarily enjoin a public high school's decision, which disqualified plaintiff's daughter from running for school office after she posted a vulgar and misleading message on an independently operated, publicly-accessible web "blog", judgment denying relief is affirmed where the district court did not abuse its discretion in determining that plaintiff failed to demonstrate a sufficient likelihood of success on her purported First Amendment and equal protection claims."

U.S. 3rd Circuit Court of Appeals, May 28, 2008
Arca-Pineda v. Atty. Gen. of US, No. 07-1914
"Petition for review of an order finding petitioner removable and denying her application for suspension of deportation is denied where: 1) petitioner's continuous physical presence clock did not begin anew based on an administrative closure; 2) contrary to claims of inequitable application of the stop-time rule to her case, allowing petitioner's application for suspension of deportation would essentially permit her to avail herself from her failure to attend a deportation proceeding, frustrating Congress's purpose in enacting the stop-time rule; 3) petitioner's purported continuous period physical presence did not satisfy the requisite statutory period "immediately proceeding" her application for suspension of deportation; and 4) retroactive application of the stop-time rule to petitioner did not violate her due process rights."

U.S. 4th Circuit Court of Appeals, May 29, 2008
Steinburg v. Chesterfield County Planning Comm'n, No. 07-1181
"In an action alleging violations of plaintiff's First Amendment rights when the chairman of a county commission had him removed from a public meeting for criticizing the way in which the commission conducted its business, summary judgment for defendants is affirmed where: 1) the commission's public meeting was a "limited public forum"; 2) a content neutral policy against personal attacks was not unconstitutional since it was adopted to serve the legitimate public interest in a limited public forum of decorum and order; 3) defendant's actions in cutting off plaintiff were in accordance with the right and duty as chair to restore order and cut off irrelevant discussion; 4) the chairman did not discriminate against plaintiff's viewpoint when he acted within his discretion as chair by having plaintiff removed for failing to abide by the forum rules; and 5) there was no abuse of discretion in denying plaintiff's motion to file an amended complain to assert claims against commissi! oners in their individual capacities."

U.S. 6th Circuit Court of Appeals, May 29, 2