June 11, 2010

U.S.A v. Justin K. Dorvee: Second Circuit U.S. Court of Appeals Decision

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.;

EXCERPT FROM OPINION:

Justin K. Dorvee pled guilty to one count of distribution of child pornography in violation
of 18 U.S.C. § 2252A(a)(2)(A). He was sentenced by the United States District Court for the
Northern District of New York (McAvoy, J.) to the statutory maximum of 240 months, less 194 days for time served for a related state sentence. He challenges both the procedural and substantive reasonableness of his sentence. Our review of the record indicates that the district court may have improperly calculated Dorvee’s Guidelines range which, we conclude, constitutes procedural error. We also conclude that the sentence imposed on Dorvee is substantively unreasonable. We therefore vacate the judgment and remand to the district court for resentencing.

COMMENTS FROM MR.ANGIOLETTI:

I recently received an e-mail from Mr. Angioletti which included some brief comments about this case. He also expresses appreciation regarding the legal research facilities and staff at the New York Supreme Court Criminal Term (New York County) Law Library. We are certainly pleased that he found the library facilities helpful and the service supportive. Here is an excerpt:

Dear Mr. Badertscher:

Last year you posted the brief in United States v. Dorvee on the library blog. The case was assigned to me under the Criminal Justice Act by the Second Circuit Court of Appeals. On May 11, the Second Circuit issued an opinion vacating my client's sentence as unreasonable, and remanding the case for resentence. The case has gotten a lot of national attention, because it is one of the few cases to find a within-guidelines sentence substantively unreasonable.

The brief involved a lot of fairly sophisticated research, including legislative history. All of the research was conducted on the 17th floor library, both electronically through Lexis, and the old-fashioned way-- with the books....

Click here to see U.S.A v. Justin K. Dorvee 09-0648-cr

April 2, 2010

U.S. Second Circuit: Enhanced Sentencing in New York for Persistent Felons Violates U.S. Constitution

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."

05-4375-pr; 06-3550-pr; 07-1599-pr; 07-3588-pr; 07-3949-pr
Besser v. Walsh; Phillips v. Artus; Portalatin v. Graham; Morris v. Artus;
Washington v. Poole

Click here to see decision


October 1, 2009

United States v. Justin K. Dorvee - Appellant Brief

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.

BRIEF FOR DEFENDANT-APPELLANT JUSTIN K. DORVEE

PRELIMINARY STATEMENT

Defendant Justin K. Dorvee appeals from the final appealable Judgment of the
United States District Court for the Northern District of New York (Thomas J.
McAvoy, J.), entered on February 12, 2009, convicting him upon plea of guilty of the
crime of Distribution of Child Pornography [18 U.S.C. §§ 2252A (a)(2)(A), (b)(1) &
2256(8)(A)] and sentencing him principally to 240 months, with Dorvee given credit
pursuant to U.S.S.G. § 5G1.3 for six months and fourteen days for which he would not
Numbers in parentheses preceded by “A” refer to the pages 1 of Appellant’s Appendix.
numbers in parentheses preceded by “P” refer to the pages of the plea; numbers in parentheses
preceded by “S” refer to the pages of the sentencing. otherwise receive credit by the Bureau of Prisons (A 9-15).1 The sentence was to run concurrently with a New York state court sentence.

Dorvee was also sentenced to lifetime supervised release. Timely notice of appeal was filed on February 12, 2009

By order dated March 9, 2009, this Court appointed Paul J. Angioletti as
counsel for Dorvee pursuant to the Criminal Justice Act.

Dorvee is currently incarcerated pursuant to this judgment of conviction at
Otisville Federal Correctional Institution in Otisville, New York.

SUBJECT MATTER AND JURISDICTION

The district court had jurisdiction over this matter pursuant to 18 U.S.C. § 3231.
This Court has jurisdiction over this direct appeal from a conviction in the district
court pursuant to 18 U.S.C. § 3742 and 28 U.S.C. § 1291.

ISSUES PRESENTED
1. WHETHER THE DISTRICT COURT
MISTAKENLY BELIEVED THAT THE 240-MONTH
STATUTORY MAXIMUM SENTENCE IT IMPOSED
WAS A BELOW GUIDELINES SENTENCE?
WHETHER THE DISTRICT COURT ERRED IN
IMPOSING SEVERAL § 2G2.2 ENHANCEMENTS?

See: U.S. v. Durvee 09-0648-cr Appellant Brief

NOTE: As a bonus, I am including with this posting a link to an article recommended to me by Paul Angioleetti. Here is his comment:

"This is a link to an interesting article on 'Questions Presented' in appellate briefs"
http://www.alwd.org/JALWD/CurrentIssues/2009/Fischer_2.html

July 14, 2009

Findlaw Case Summaries: Second Circuit U.S. Court of Appeals

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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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June 9, 2009

Findlaw Case Summary: Gollomp v. Spitzer 07-0847

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 5, 2009

Findlaw Case Summaries: Second Circuit U.S. Court of Appeals

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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.

INJURY AND TORT LAW, SECURITIES LAW
Holmes v. Grubman , No. 06-5246
In a fraudulent misrepresentation action involving securities, district court judgment is affirmed in part where: 1) the court properly denied plaintiff's motion to amend, as the record is devoid of evidence supporting plaintiffs' contention that good cause existed for the district court to modify its scheduling order; and 2) the court properly dismissed plaintiff's claim brought under Georgia’s "blue sky" law, as plaintiffs did not cite a specific provision of the statute or refer to particular false or misleading statement that allegedly violated the statute and thus failed to provide defendant with fair notice of their claim and the grounds upon which it rested. The remaining three issues on appeal are certified to the Supreme Court of Georgia, as the state's highest court has not directly addressed the issues and the present court is unable to predict with certainty how the court would rule on them in the instant case.

ATTORNEY'S FEES, GOVERNMENT LAW, PER CURIAM
Pietrangelo v. US Army , No. 07-3124
District court judgment denying a pro se lawyer's motion for attorneys' fees under the Freedom of Information Act is affirmed where lawyers who represent themselves in FOIA litigation are not eligible for attorneys' fees under the Act's fee-shifting provision, 5 U.S.C. section 552(a)(4)(E). R

GOVERNMENT BENEFITS
Encarnacion v. Astrue , No. 07-3550
In an action involving children's eligibility for Supplemental Security Income Benefits, district court's grant of summary judgment for defendant is affirmed where the Commissioner of Social Security's interpretation of the Social Security Act Act and the disputed policy implementing the Act's provisions for determining children's eligibility for Supplemental Security Income Benefits is entitled to deference under Skidmore. The Commissioner is thus not required to engage in cross-domain combination of less-than-marked limitations, and the regulations adequately take into account the combined effect of a child’s impairments.

June 3, 2009

Findlaw Case Summaries: Second Circuit U.S. Court of Appeals

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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

ADMINISTRATIVE LAW, IMMIGRATION LAW
Guzman v. Holder , No. 08-2544
Petition for review of Board of Immigration Appeals' cancellation of removal and finding of removeability is granted where the Board violated 8 C.F.R. sec 1003.1(d)(3)(iv) by engaging in impermissible factfinding as it relied on facts that were contested by the parties and expressly not found by the Immigration Judge.

May 18, 2009

Findlaw Case Summaries: Second Circuit U.S. Court of Appeals

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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. .

IMMIGRATION LAW
Mendez v. Holder , No. 06-0032
Petition for review of the Board of Immigration Appeals' decision affirming denial of cancellation of removal is granted and remanded where an error of law occurred in the Board's decision, as facts important to the determination of exceptional and extremely unusual hardship were totally overlooked and others were seriously mischaracterized.


CRIMINAL LAW & PROCEDURE, HABEAS CORPUS
Brisco v. Ercole , No. 05-4339
Grant of petition for habeas relief is reversed where: 1) plaintiff failed to establish that the state court's decision was an unreasonable application of clearly established federal law, as the challenged showup procedure was not unnecessarily suggestive; and 2) the showup identification was independently reliable.

ERISA, LABOR & EMPLOYMENT LAW
Rahm v. Halpin , No. 07-3206
In a dispute involving an employer's contributions to an employee benefit plan, district court judgment is affirmed where defendant's failure to make the required contributions to the plan did not constitute a breach of a fiduciary duty, as defendant's unpaid contributions were not assets and thus defendant was not a fiduciary over the funds and not personally liable for any loss resulting from his conduct.

CRIMINAL LAW & PROCEDURE, IMMIGRATION LAW
US v. Tureseo, No. 07-2933
Conviction and sentence for reentering the U.S. after deportation, making a false claim of U.S. citizenship, and aggravated identity theft is affirmed in part and vacated in part where: 1) the district court erred when it instructed the jury in defendant's absence, but the error did not cause prejudice and was harmless beyond a reasonable doubt; but 2) the court made a constitutional error that was not harmless beyond a reasonable doubt when it omitted an essential element of the offense in its jury instruction on the aggravated identity theft charge.

May 13, 2009

Findlaw Case Summaries: Second Circuit U.S. Court of Appeals

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.

LABOR & EMPLOYMENT LAW
NLRB v. Special Touch Home Care Serv., Inc., No. 07-5422
In an unfair labor practices action, NLRB order is enforced in part, denied in part, and modified in part where: 1) the Board properly found that employee Miller was properly discharged; 2) the Board erred in not considering the intersection of the plant rule doctrine and National Labor Relations Act sec. 8(g) in connection with the reinstatement of strikers, and on remand the Board should determine the relationship between these two rules; and 3) two employees of defendant unlawfully interrogated aides regarding their support for the union in violation of the Act

CRIMINAL LAW & PROCEDURE, HABEAS CORPUS
Brisco v. Ercole , No. 05-4339
Grant of petition for habeas relief is reversed where: 1) plaintiff failed to establish that the state court's decision was an unreasonable application of clearly established federal law, as the challenged showup procedure was not unnecessarily suggestive; and 2) the showup identification was independently reliable.


April 21, 2009

Findlaw Case Summaries: Second Circuit U.S. Court of Appeals

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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...

CONSTITUTIONAL LAW, GOVERNMENT LAW, INJURY AND TORT LAW, INTERNATIONAL LAW, MILITARY LAW
Matar v. Dichter, No. 07-2579
In an action brought by survivors of Israeli bombing in Gaza, seeking damages for war crimes and violations of international law, district court's dismissal of plaintiff's claims for lack of jurisdiction on grounds that defendant is immune from suit under the Foreign Sovereign Immunities Act is affirmed where, although questions exist as to whether the Act applies to former officials like defendant or not, common law principles that predate and survive the enactment of the Act still apply and recognize the immunity of former foreign officials for acts performed in their official capacity.

GOVERNMENT BENEFITS, INSURANCE LAW
Poupoure v. Astrue , No. 08-0659
In a dispute involving disability insurance benefits under the Social Security Act, district court judgment affirming the denial of plaintiff's claim is affirmed where: 1) substantial evidence supports the ALJ's determination that plaintiff is not entitled to disability benefits because he retained the ability to perform light work and there is work in the national economy that he can do; 2) the ALJ did not err in finding that the testimony of one of plaintiff's treating physicians was not entitled to significant weight; and 3) substantial evidence supports the finding that plaintiff's subjective complaints of pain were insufficient to establish disability

IMMIGRATION LAW
Johnson v. Holder , No. 07-4629
Petition to review of Board of Immigration Appeal's denial of motion to reopen deportation proceedings is denied where the law of the case doctrine requires that the present court's ruling in an earlier action involving plaintiff must be followed, and thus plaintiff's argument that she need not make an individualized showing of reliance is rejected.

ETHICS & PROFESSIONAL RESPONSIBILITY, SANCTIONS
Wolters Kluwer Fin. Serv., Inc. v. Scivantage, No. 07-2491
In an action involving sanctions imposed on a law firm and its partners, district court's judgment is affirmed in part and reversed in part where: 1) sanction against the firm for the voluntary dismissal and the use of deposition transcripts was unjustified absent other specific evidence of the law firm's bad faith; 2) sanction against law firm partner Reiner was in error absent other specific evidence of his intentional misconduct and because his sanctioned actions were procedurally adequate; and 3) court did not abuse its discretion in its sanctions against law firm partner Peters

April 10, 2009

Findlaw Case Summaries: Second Circuit U.S. Court of Appeals

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April 8-9, 2009.

COMMUNICATIONS LAW, GOVERNMENT LAW, PROPERTY LAW & REAL ESTATE
Global Network Communications, Inc. v. City of New York, No. 07-5184
In an action involving the denial of an application for a public pay telephone franchise, district court's grant of summary judgment for defendant is affirmed where: 1) defendant's refusal to grant plaintiff a franchise to operate on public rights-of-way on the basis of its past history of fraud is within the scope of the safe harbor exception of Telecommunications Act sec. 253; 2) the court did not err in dismissing plaintiff's state and federal law preemption claims; and 3) the court did not err in dismissing plaintiff's federal constitutional claims.

CRIMINAL LAW & PROCEDURE, SENTENCING
US v. Martinucci, No. 08-0104
Sentence for production of child pornography is affirmed where: 1) there is no merit to defendant's claim that the court erred in considering hearsay information in determining the appropriate sentence; and 2) the court did not exceed its sentencing discretion in departing upward under U.S.S.G. sec. 5K2.8 and imposing a term of imprisonment of 300 months, considering the seriousness of the offense and the great harm inflicted on the victim as well as the defendant's recidivism and lack of remorse.


CRIMINAL LAW & PROCEDURE, SENTENCING, TAX LAW
US v. Josephberg, No. 07-3958
Conviction for tax offenses and health care fraud is affirmed where: 1) the government presented sufficient evidence to support defendant's conviction for income tax evasion and health care fraud; 2) defendant's conviction for willful failure to file timely income tax returns and willful failure to pay tax did not violate the Fifth Amendment privilege against self incrimination as the pendency of a government investigation does not give a taxpayer a Fifth Amendment option to fail to file a tax return; 3) defendant did not provide sufficient evidence to support his allegations of prosecutorial misconduct; 4) the court did not err in refusing to give jury instruction defendant requested; and 5) the court did not err in sentencing calculations.

CRIMINAL LAW & PROCEDURE, SENTENCING
US v. Robles, No. 07-1013
Conviction and sentence for conspiracy to commit Hobbs Act robbery is affirmed where: 1) the district court did not err in calculating defendant's Sentencing Guidelines range as it properly considered the robberies as objects of the conspiracy even though the robberies were not identified as objects of the conspiracy in the conspiracy count of the indictment; and 2) the court properly enhanced defendant's sentence based on its finding that the robberies were objects of the overall conspiracy of which defendant was convicted, despite being acquitted of the robbery charge itself.

CRIMINAL LAW & PROCEDURE, SENTENCING
US v. McCourty , No. 07-3862
Conviction and sentence for drug crimes is affirmed and remanded where: 1) no constructive amendment resulted when the district court broke the single offense into two parts to be addressed by the jury as neither the trial evidence nor the jury charge altered the superseding indictment; 2) there is no double jeopardy violation in the government's pursuance of a retrial of the one count of the indictment left undecided by the jury as there was neither a complete acquittal on the count nor an acquittal relating to a key factual element of the crime described in the count; and 3) the court did not abuse its discretion in denying defendant's motion for a new trial. Case is remanded for the limited purpose of allowing the district court to re-sentence in light of the Supreme Court's decision in Kimbrough. .

DISPUTE RESOLUTION & ARBITRATION
ReliaStar Life Ins. Co. of N.Y. v. EMC Nat'l Life Co., No. 07-0828
In a dispute involving an arbitration award, district court's judgment is reversed and remanded where the inclusion in an arbitration agreement of a statement that each will bear the expenses of its own arbitrator and attorneys does not deprive the arbitration panel of the authority to award such expenses as a sanction against a party whom the panel determines failed to arbitrate in good faith.

April 8, 2009

Findlaw Case Summaries: Second Circuit U.S. Court of Appeals

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April 7, 2009.

CRIMINAL LAW & PROCEDURE, PER CURIAM
US v. Kopp , No. 07-2797
Conviction for intentionally inflicting on a person, because that person was a provider of reproductive health services, an injury resulting in death is affirmed where: 1) district court properly denied defendant's motion to suppress evidence as untimely, and defendant provided no valid basis for a claim for relief from the Fed. R. Crim. P. rule 12(e) waiver; 2) court did not err when it granted government's motion to introduce defendant's statements in redacted form as the redacted portions had no bearing on the jury's consideration; and 3) the court did not err in precluding defendant from asserting a justification defense and instructing the jury that it was not to consider a justification defense, as the evidence was insufficient to support that defense under any reasonable articulation. ..

CRIMINAL LAW & PROCEDURE, SENTENCING
US v. Hertular, No. 07-1453
Conviction for drug and drug-related crimes is affirmed in part, reversed in part, and vacated and remanded where: 1) the evidence was insufficient to support defendant's conviction for forcibly impeding or intimidating a federal officer under 18 U.S.C. sec. 111(a)(1) as the agents were not being threatened with immediate harm; 2) defendant's sufficiency challenge to his obstruction of justice conviction was patently without merit; 3) there was no plain error in the district court's jury instructions regarding the specific intent element of the obstruction of justice charge; and 4) although defendant's sentence is vacated in light of the reversal of his sec. 111 conviction, there is still no merit to defendant's procedural challenges to his sentence.

April 6, 2009

Rescuecom Corp. v. Google Inc.

From: Findlaw Case Summaries, Second Circuit U.S. Court of Appeals:

CYBERSPACE LAW, INTELLECTUAL PROPERTY, TRADEMARK

Rescuecom Corp. v. Google Inc. , No. 06-4881

In an action brought under the Lanham Act for trademark infringement, false designation of origin, and dilution, the district court's dismissal for failure to state a claim is reversed and remanded where plaintiff's allegations that Google's recommendation and sale of its mark to Google's advertisers, so as to trigger the appearance of their advertisements and links in a manner likely to cause consumer confusion when a Google user launches a search of plaintiff's trademark, defendant made a use in commerce of the plaintiff's trademark, properly alleges a claim under the Lanham Act.

March 27, 2009

Findlaw Case Sumaries: Second Circuit U.S. Court of Appeals

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March 24-26, 2009

CRIMINAL LAW & PROCEDURE, SENTENCING

US v. Samas , No. 05-5213

Conviction and sentence for possession with intent to distribute and distribution of cocaine and cocaine base is affirmed where: 1) plaintiff's argument that the mandatory sentencing scheme in 14 U.S.C. sec. 841(b) violates the Equal Protection Clause fails, as the Supreme Court's decision in Kimbrough does not suggest that the powder to crack cocaine disparity in sec. 841(b)is unconstitutional; 2) the parsimony clause in 18 U.S.C. sec. 3553(a) does not conflict with the mandatory sentencing provisions in sec. 841(b); and 3) any error in sentencing did not affect plaintiff's substantial rights


CIVIL PROCEDURE, ERISA

Kendall v. Employee Retirement Plan of Avon Prods., No. 07-4203

In an ERISA class action, district court's grant of plaintiff's motion to dismiss is affirmed where plaintiff lacks the constitutional standing to assert that the plan administrator breached a fiduciary duty or that the plan violates ERISA, as she can cannot show any individualized harm from a direct injury or an injury-in-fact.

EDUCATION LAW, TAX LAW

US v. Memorial Sloan-Kettering Cancer Ctr., No. 07-0926

In an action involving the FICA tax exemption for students, district court judgment is vacated where the district courts erred in ruling as a matter of law that medical residents are categorically ineligible for the FICA tax exemption for students, as the question of whether a medical resident qualifies for the student exclusion is a separate factual inquiry that must be reviewed on remand. The district court ruling that the monies paid by defendant to medical residents are not scholarships is affirmed.

BANKRUPTCY LAW, PER CURIAM

Pleasant v. TLC Liquidation Trust, No. 07-4641

In a bankruptcy action, district court's judgment in favor of defendant is reversed and remanded where plaintiff's claim against defendant was not entered without a contest as defendants initially filed an objection to it. Defendant's motion to reconsider is thus subject to the one-year time limit under Rule 9024 of the Federal Rules of Bankruptcy Procedure and is untimely.


February 18, 2009

Findlaw Case Summaries: Second Circuit U.S. Court of Appeals

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February 11, 13, 17, 2009.

CRIMINAL LAW & PROCEDURE, ETHICS & PROFESSIONAL RESPONSIBILITY, SENTENCING
U.S. v. Gutierrez, No. 083581
Conviction for possession of counterfeit checks and bank fraud and sentence of 24 months on each count, to run concurrently, is affirmed over claims of error that: 1) defendant's sentence was procedurally unreasonable because the District Court did not provide defense counsel a meaningful opportunity to speak before imposing a sentence, in violation of Rule 32 of the Federal Rules of Criminal Procedure; and 2) a sentence of twenty-four months' imprisonment was procedurally unreasonable because the District Court did not adequately consider the sentencing factors in 18 U.S.C. section 3353(a), provide sufficient reasons for imposing a sentence of twenty-four months' imprisonment, or address defendant's specific arguments for a non-Guidelines sentence

ADMINISTRATIVE LAW, FAMILY LAW, GOVERNMENT LAW, HEALTH LAW
State of New York v. U.S. Dep't of Health and Human Servs., No. 073858
In challenge to defendant's determination that the state's failure to comply with the "judicial determination of reasonable efforts" requirements in 45 C.F.R. section 1356.21(b)(2) rendered it ineligible for federal reimbursement of foster care maintenance payments, dismissal of plaintiff's action is affirmed where: 1) state's contention that section 1356.21(b)(2) conflicted with the statute it implemented, 42 U.S.C. section 672(a)(1), was incorrect; 2) section 1356.21(b)(2) required a judicial determination of state compliance with the reasonable child placement efforts set forth in 42 U.S.C. section 671(a)(15) as amended by the 1997 Adoption and Safe Families Act; 3) the plain language of section 672(a)(1) signaled Congress's intent to incorporate all "reasonable efforts" discussed in section 671(a)(15) into section 672(a)(1); and 4) state's complaint was properly dismissed pursuant for failure to state a claim. Read more...

ATTORNEY'S FEES, SECURITIES LAW
Trust for the Certificate Holders of the Merrill Lynch Mortgage Investors v. Love Funding Corp., No. 071050
In a case arising out of the sale of commercial mortgage-backed securities in an approximate amount of $100 billion, the court certified the following questions: 1) Is it sufficient as a matter of law to find that a party accepted a challenged assignment with the "primary" intent proscribed by New York Judiciary Law section 489(1), or must there be a finding of "sole" intent?; 2) As a matter of law, does a party commit champerty when it "buys a lawsuit" that it could not otherwise have pursued if its purpose is thereby to collect damages for losses on a debt instrument in which it holds a pre-existing proprietary interest?; 3) (a) As a matter of law, does a party commit champerty when, as the holder of a defaulted debt obligation, it acquires the right to pursue a lawsuit against a third party in order to collect more damages through that litigation than it had demanded in settlement from the assignor? (b) Is the answer to question 3(a) affected by the fact that the challenged assignment enabled the assignee to exercise the assignor's indemnification rights for reasonable costs and attorneys' fees?

CIVIL PROCEDURE, CONSTITUTIONAL LAW, CRIMINAL LAW & PROCEDURE
Sledge v. Kooi, No. 07-1547
In a suit brought pro se by plaintiff alleging defendant violated his Eighth Amendment rights while incarcerated, grant of defendant's motion for summary judgment is affirmed. When facing pro se litigants who are repeat filers, absent a strong showing that the pro se litigant has acquired adequate experience more generally, a district court should limit the withdrawal of pro se litigant's special status to specific contexts in which the litigant's experiences indicates that he may fairly be deemed knowledgeable and experienced.

CONSTITUTIONAL LAW, CONSUMER PROTECTION LAW, FOOD & BEVERAGES, HEALTH LAW
New York State Restaurant Ass'n v. New York City Bd. of Health , No. 08-1892
In an action challenging the constitutionality of a law requiring restaurants to post caloric information on menus, the District Court's denial of plaintiff's motions for preliminary injunction, declaratory relief, and summary judgment, and grant of defendant's motion for summary judgment, are affirmed where New York Health Code 81.50: 1) is not expressly preempted by the Nutrition Labeling and Education Act of 1990; and 2) does not infringe on plaintiff's member restaurants' First Amendment rights.

January 9, 2009

Findlaw Case Summaries: Second Circuit U.S. Court of Appeals

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January 5-8, 2009:

ADMINISTRATIVE LAW, GOVERNMENT LAW, MEDIA LAW, MILITARY LAW

Associated Press v. US Dep't of Def., No. 06-5352

In a Freedom of Information Act (FOIA) action brought by the Associated Press against the Department of Defense, judgment mainly for AP ordering the DOD's disclosure of, inter alia, Guantanamo detainee identifying information contained in records of DOD's investigations of detainee abuse at Guantanamo is reversed where: 1) detainees and their family members have a measurable privacy interest in the nondisclosure of their identifying information in such records; 2) the AP failed to show how the public interest would be further served by disclosure of their identities; and 3) thus, the identifying information is exempt from disclosure under the FOIA privacy exemptions.

ATTORNEY'S FEES, PROFESSIONAL MALPRACTICE

Chen v. Chen Qualified Settlement Fund, No. 06-1302, 06-3810

In a case arising from a medical malpractice action which had been settled, denial of attorney's application for attorneys' fees is affirmed where: 1) the district court did not abuse its discretion in denying the application based on a finding that attorney engaged in misconduct with respect to the fees and expenses in the case and that he failed to represent his client adequately with respect to the post-settlement proceedings in the district court; and 2) the record did not support his claim of bias

CRIMINAL LAW & PROCEDURE, EVIDENCE, SECURITIES LAW, WHITE COLLAR CRIME

US v. Kelley, No. 06-5536

A conviction for securities fraud and wire fraud is affirmed where: 1) although the use of bogus account statements to lull defrauded investors is not in and of itself sufficient to establish a securities law violation, the use of such statements is relevant as evidence to prove, inter alia, a defendant's intent to defraud and the extent of the scheme employed; and 2) thus, there was no error in admitting such evidence in this case.

ATTORNEY'S FEES, BANKRUPTCY LAW, CIVIL PROCEDURE, COMMERCIAL LAW, CORPORATION & ENTERPRISE LAW

In Re: Smart World Techs., LLC, No. 08-1721

In the bankruptcy context, pre-approval of a fee agreement under 11 U.S.C. section 328(a) depends on the totality of the circumstances, including whether the professional's application, or the court's order, referenced section 328(a), and whether the court evaluated the propriety of the fee arrangement before granting final, and not merely preliminary, approval. In the circumstances of this case, the circuit court rules that: 1) the bankruptcy court's Retention Order was a pre-approval within the meaning of 11 U.S.C. section 328(a); and 2) no subsequent developments warranted modifying the terms of appellee-firm's retention. ..

CIVIL PROCEDURE, COMMERCIAL LAW, CONTRACTS, INTERNATIONAL LAW

CP Solutions PTE, Ltd. v. Gen. Elec. Co., No. 07-3444

In a commercial contract dispute, dismissal of plaintiff's complaint for lack of subject matter jurisdiction is reversed and remanded where: 1) contrary to the district court's ruling, one of the defendants was not an indispensable party; and 2) thus, that defendant could be dropped as a party so as to preserve diversity jurisdiction.

CRIMINAL LAW & PROCEDURE, SENTENCING

US v. Uddin, No. 07-3121

A sentence for food stamp fraud and theft of public property is affirmed where, despite the absence of data as to the exact amount of loss, the district court's loss calculation was a reasonable estimate of the loss caused by the defendant, and its forfeiture calculation was not plainly erroneous.


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December 23, 2008

Findlaw Case Summaries: Second Circuit US Court of Appeals

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December 18, 22 2008.

CRIMINAL LAW & PROCEDURE, HABEAS CORPUS, IMMIGRATION LAW

Martinez v. Mukasey, No. 07-3031

Where Petitioner's state drug conviction could have been for nonremunerative transfer of as little as two grams of marijuana, his conviction is the equivalent of a federal misdemeanor under the Controlled Substances Act and therefore not an aggravated felony under the INA.


GOVERNMENT LAW, LABOR & EMPLOYMENT LAW, PER CURIAM

Burch v. Pioneer Credit Recovery, Inc. , No. 072963

In a per curiam decision reviewing claim by plaintiff against defendant-former employer for violation of the Privacy Act by photocopying and otherwise impermissibly handling his security clearance package, dismissal of plaintiff's claim is affirmed where: 1) plaintiff did not plead factual allegations sufficient to make a plausible claim that his employer was a "government controlled corporation"; and 2) the claim therefore failed to state a cause of action under the Privacy Act.

December 3, 2008

Findlaw Case Summaries: Second Circuit U.S. Court of Appeals

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ADMINISTRATIVE LAW, IMMIGRATION LAW
Diallo v. US Dept. of Justice, No. 073649
Petition for review of decision denying native citizen of Guinea asylum, withholding of removal, and relief under the Convention Against Torture (CAT), is granted where: 1) given the presence of errors in the Board of Immigration Appeals' decision as to issues that were properly exhausted and the plausibility of other newly claimed errors, remand to the BIA would not have been futile; and 2) there were sufficient exhausted flaws in the reasoning of the Immigration Judge's adverse credibility determination to warrant a remand, and the court could not confidently predict the same outcome if there were further agency reconsideration. Read more...

CIVIL PROCEDURE, CLASS ACTIONS, GOVERNMENT LAW, INSURANCE LAW
Shady Grove Orthopedic Assoc. v. Allstate Ins. Co., No. 070141
In a class action claim for statutory penalties under section 5106(a) of New York insurance law against defendant-Allstate Insurance Company, grant of motion to dismiss is affirmed where: 1) section 901(b) of the New York Civil Practice Law and Rules may be applied in a federal court sitting in diversity jurisdiction and adjudicating claims under state law; and 2) section 5016(a) did not fall within the exception clause of section 901(b).

CONSTITUTIONAL LAW, CRIMINAL LAW & PROCEDURE, GOVERNMENT LAW, INTERNATIONAL LAW
In re Terrorist Bombings of U.S. Embassies in East Africa (Fifth Amendment Challenges), No. 011535, 011550, 011553, 011571, 056149, 056704
Judgments of convictions for offenses arising from involvement in an international conspiracy, led by Osama Bin Laden and organized through the al Qaeda terrorist network, to kill American citizens and destroy American facilities across the globe are affirmed where: 1) the inculpatory statements of defendants that were obtained overseas by U.S. agents were properly admitted at trial; 2) the district court did not violate defendant's Sixth Amendment right to counsel by permitting him to withdraw his initial suppression motion on religious grounds; 3) on a motion to reopen a suppression hearing, there was no bright-line rule that necessarily and invariably required the government to provide a reasonable justification for its failure to offer relevant evidence at an earlier suppression proceeding; and 4) the district court did not abuse its discretion by reopening a suppression hearing at the government's request, notwithstanding the government's failure to provide a reasonable justification for not offering the evidence at an earlier proceeding because no such justification was required in all cases. .


CONSTITUTIONAL LAW, CRIMINAL LAW & PROCEDURE, INTERNATIONAL LAW, SENTENCING
In reTerrorist Bombings of U.S. Embassies in East Africa, No. 011535, 011550, 011553, 011571, 056149, 056704
Judgments of convictions for offenses arising from involvement in an international conspiracy, led by Osama Bin Laden and organized through the al Qaeda terrorist network, to kill American citizens and destroy American facilities across the globe are affirmed and remanded for re-sentencing where: 1) the indictment was sufficient to support a conviction of a capital offense; 2) sufficient evidence supported the convictions; 3) the District Court's application of the Classified Information Procedures Act did not violate the Constitution; 4) a severance motion was properly denied; 5) statements of co-defendants, co-conspirators, and certain third parties were properly admitted at trial; 6) the government withheld exculpatory evidence; 7) there was no merit in co-defendant's suggestion that "cumulative error" deprived him of a fair trial; and 8) the application of certain enhancements to co-defendant's sentencing guidelines calculation was not in error. Insofar as co-defendant's sentence resulted from the mandatory application of the U.S. Sentencing Guidelines, he is entitled to be resentenced pursuant to U.S. v. Fagans, 406 F.3d 138 (2d Cir. 2005).

CIVIL PROCEDURE, DISPUTE RESOLUTION & ARBITRATION, INSURANCE LAW
Life Receivables Trust v. Syndicate 102 at Lloyd's of London, No. 071197
In a matter concerning life insurance, grant of defendant's motion to enforce a subpoena issued by by arbitration panel is reversed where section 7 of the Federal Arbitration Act does not enable arbitrators to issue pre-hearing document subpoenas to entities not parties to the arbitration proceedings

CONSTITUTIONAL LAW, CRIMINAL LAW & PROCEDURE, MEDIA LAW
Associated Press v. U.S. Dep't of Justice, No. 071384
In a matter brought by Associated Press for denial of request for any petitions seeking to reduce a twenty-two year prison sentence of John Walker Lindh, convicted of aiding the Taliban in Afghanistan, dismissal of plaintiff's complaint under the Freedom of Information Act and grant of summary judgment in favor of defendant are affirmed where: 1) a significant privacy interest is implicated in release of Lindh's petition; 2) plaintiff failed to show that release of the information would shed light on the workings of government; and thus 3) district court did not err in holding the petition exempt from disclosure under FOIA Exemptions 6 and 7(C).

November 13, 2008

Findlaw Case Summaries: Second Circuit U.S. Court of Appeals

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ADMIRALTY, INTERNATIONAL TRADE, TRANSPORTATION

Rexroth Hydraudyne B.V. v. Ocean World Lines, Inc., No. 071207

Order awarding defendants partial summary judgment and limiting their liability to $13,500 pursuant to the Carriage of Goods by Sea Act is affirmed where: 1) defendants did not fall within the statutory grasp of the Carmack Amendment; and 2) defendants were therefore entitled to employ the contractual limitations of liability set out in the through bills of lading.


CRIMINAL LAW & PROCEDURE, IMMIGRATION LAW

Mendez v. Mukasey, No. 071114

In an immigration appeal, petition for review of decision ordering petitioner's removal is denied where first degree larceny in the form of "defrauding a public community" is a crime involving moral turpitude


CRIMINAL LAW & PROCEDURE, EVIDENCE

US v. Hamilton, No. 06-2933

Conviction for conspiracy to distribute and possess with intent to distribute marijuana is remanded for further proceedings where defendant's motion to suppress evidence seized from a house, in which he claimed a privacy interest, could not properly be denied on grounds of lack of standing without a hearing. (Amended opinion)


IMMIGRATION LAW, INTERNATIONAL LAW

Balachova v. Mukasey, No. 072278, 072279

Review of decision directing removal of husband and wife petitioners to Russia and denying asylum, withholding of removal, and relief under the Convention Against Torture is dismissed in part, granted in part, and the order of removal is vacated where: 1) wife-petitioner's claims were dismissed for failure to exhaust administrative remedies; 2) there were numerous errors in assessing husband-petitioner's applications for asylum and withholding of removal; 3) IJ's conclusion that husband-petitioner must have participated in the stated abuse because he equivocated the meaning of "rape" was not supported by substantial evidence; and 4) wife-petitioner may be eligible for derivative relief based on her husband's application.


October 24, 2008

Findlaw Case Summaries: U.S. Court of Appeals Second Circuit

BANKING LAW, CIVIL PROCEDURE, SECURITIES LAW
Morrison v. Nat'l Australia Bank, Ltd., No. 070583
In a securities matter involving defendant-foreign bank, dismissal of claims is affirmed where court did not have subject matter jurisdiction based on the fact that: 1) the fraudulent statements at issue emanated from defendant's corporate headquarters in Australia; 2) the complete lack of any effect on America or Americans; and 3) the lengthy chain of causation between defendant's acquired lending company's actions and the statements that reached investors.

CRIMINAL LAW & PROCEDURE
US v. Oberoi, No. 044545
Conviction for mail fraud and health care fraud is affirmed over claims of error that defendant was denied a speedy trial in violation of the Speedy Trial Act on the grounds that: 1) the pre-indictment delay exceeded 30 days; and 2) the pretrial delay exceeded 70 days.

CRIMINAL LAW & PROCEDURE, EVIDENCE
US v. Kapelioujnvy, No. 073353
Conviction for conspiracy to sell stolen property is reversed where: 1) the government failed to prove that the defendant believed that the stolen property was worth at least five thousand dollars; and 2) the government failed to prove the defendant was involved in a conspiracy involving goods that moved in interstate commerce. .

GOVERNMENT LAW, LABOR & EMPLOYMENT LAW
Havey v. Homebound Mortgage, Inc., No. 060978
Grant of summary judgment in favor of defendants on plaintiff's claims for violation of the overtime provisions of the Fair Labor Standards Act (FLSA) is affirmed where: 1) prospective adjustments to an employee's salary based on the quality of work which do not reduce the "predetermined amount" of salary do not violate the "salary-basis test" of the FLSA so long as the salary scheme was not designed to circumvent the requirements of the FLSA; and 2) prospective adjustments to an employee's salary based on projected quantity of work performed do not necessarily violate that test.

ANTITRUST & TRADE REGULATION, BANKING LAW, CIVIL PROCEDURE, CLASS ACTIONS, DISPUTE RESOLUTION & ARBITRATION
Ross v. Am. Express Co., No. 064598
In an appeal from the district court's holding that defendants-American Express may avail themselves of the arbitration clauses in the cardholder agreements and compel the plaintiffs to arbitrate their claims related to a multi-district class action antitrust litigation against defendants, plaintiffs' appeal is granted and defendants' appeal is denied where the district court erred in holding that the cardholder agreements provided a sufficient contractual basis for sending this case to arbitration.

CONTRACTS, CORPORATION & ENTERPRISE LAW, GOVERNMENT LAW, INDIAN LAW
Catskill Dev., LLC v. Park Place Entm't Corp., No. 065860
In a claim that defendant tortiously interfered with plaintiff's contractual and business relations with the non-party Mohawk Indian Tribe when it entered into an exclusive agreement with the Tribe, dismissal of plaintiff's tortious interference claim and grant of summary judgment in favor defendant are affirmed where: 1) the contract with the Tribe were void and otherwise unenforceable at the time of defendant's alleged interference; and 2) plaintiff failed to establish a triable issue of fact that defendant used wrongful means to interfere