Articles Posted in U.S. Second Circuit 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.

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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. ..

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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

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January 5-8, 2009:

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.

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
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.

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. ..

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.

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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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).

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. .

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