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

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CRIMINAL LAW & PROCEDURE, EVIDENCE, SENTENCING US v. DeFilippo, No. 071618 Conviction and sentence for conspiring to racketeer, illegal gambling, and conspiring to collect credit through extortionate means is affirmed where: 1) though lower court erred in admitting certain testimony by a witness and his sentencing challenges, the error was harmless; 2) the district court appropriately considered murder to be relevant conduct under the Guidelines; 3) there was no support for defendant’s assertion that incarceration created a rebuttable presumption of withdrawal from a conspiracy; and 4) the district court did not abuse its discretion by resolving the dispute over attorney’s fees without a hearing.

CRIMINAL LAW & PROCEDURE, EVIDENCE US v. Luna, No. 073018 Judgment of acquittal notwithstanding the verdict for a cocaine-distribution conspiracy is reversed and remanded where there was sufficient evidence to support the jury’s determination that the defendant not only had a buyer-seller relationship with the head of the conspiracy but also knowingly and intentionally joined in and participated in the conspiracy. .

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CRIMINAL LAW & PROCEDURE, EVIDENCE, SENTENCING US v. DeFilippo, No. 071618 Conviction and sentence for conspiracy to racketeer, illegal gambling, and conspiracy to collect credit through extortionate means are affirmed over claims of error that: 1) the district court erred when it admitted testimony from a high-ranking member of the Bonanno Crime Family; 2) the murder of George Sciascia was not relevant conduct because it was not related to a conspiratorial object of which defendant was convicted; 3) the Government failed to rebut an alleged presumption that a person withdraws from a conspiracy when he is arrested; and 4) the district court erred in refusing to hold a hearing on that issue. .

IMMIGRATION LAW Shao v. Mukasey, No. 072689 In an immigration matter brought by Chinese nationals who asserted a fear of future persecution, specifically, forced sterilization, if removed to China based on their having fathered or given birth to more than one child, petitions for review of decision of Board of Immigration Appeals (BIA) denying relief from removal are denied where: 1) there was no legal error in the evidentiary framework employed; and 2) because substantial evidence supported the BIA’s findings that each of the petitioners failed to demonstrate that his or her stated fears of persecution on return to China were objectively reasonable.

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ADMINISTRATIVE LAW, AEROSPACE & DEFENSE, LABOR & EMPLOYMENT LAW, MILITARY LAW Dibble v. Fenimore, No. 063307

In an action for administrative relief brought by plaintiff-state National Guard service technician who was denied reenlistment, grant of summary judgment in favor of defendant-Secretary of the Air Force is affirmed where: 1) the doctrine of intramilitary immunity does not preclude a federal court from reviewing a challenge under the Administrative Procedure Act to a decision by the Air Force Board for the Correction of Military Records; and 2) the district court correctly found that the Board’s decision was not arbitrary, capricious, contrary to law, or unsupported by substantial evidence.

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As reported in an article by Mark Hamblett in the May 1 New York Law Journal, the U.S. Court of Appeals for the Second Circuit dismissed a suit by New York City attempting to hold gun manufactures liable for the flow of illegal arms into the city. In its ruling on April 30 the Second Circuit upheld an act of congress (The Protection of Lawful Commerce in Arms Act) that insulated gun manufacturers from liability “…while upholding that New York’s public nuisance law does not fint into an exception in the act”. To see the opinion and related documents from Findlaw click on the link below:

CITY OF NEW YORK V. BERETTA U.S.A. CORP., ET AL.
(U.S. 2nd Cir., April 30, 2008) –

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