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August 18 – 27, 2009.

View FindLaw’s new Case Summary Blog for the U.S. 2nd Circuit Court of Appeals
CIVIL RIGHTS, CRIMINAL LAW & PROCEDURE, GOVERNMENT LAW, INJURY AND TORT LAW Okin v. Cornwall-on-Hudson, No. 06-5142 In a 42 U.S.C. section 1983 action alleging that defendants-officers permitted plaintiff’s partner to abuse her, summary judgment for certain defendants is affirmed in part where plaintiff failed to show a genuine issue of material fact as to whether defendants enhanced the risk of violence by making explicit assurances to the perpetrator. However, the ruling is reversed in part where plaintiff raised a genuine issue of material fact as to whether defendant-officers implicitly but affirmatively sanctioned the abuse.

CRIMINAL LAW & PROCEDURE, SENTENCING US v. Dhafir, No. 05-5965 Defendant’s Medicare fraud sentence is vacated where the district court overlooked an alternate means of determining which sentencing provision under U.S.S.G. section 2S1.1(a) applied to the charges against defendant
CRIMINAL LAW & PROCEDURE, SENTENCING US v. Ware, No. 07-5222 Defendant’s securities fraud conviction is affirmed, where the Double Jeopardy Clause did not apply to defendant’s retrial because he himself moved for a mistrial. However, his sentence is vacated where the district court made insufficient findings regarding defendant’s role in the conspiracy for sentencing purposes.

CRIMINAL LAW & PROCEDURE, EVIDENCE US v. Pizzonia, No. 07-4314 Defendant’s Racketeer Influenced and Corrupt Organizations (RICO) Act conviction is affirmed where, even though the predicate acts proved by the government were outside the statute of limitations, other trial evidence permitted the jury to conclude that both the charged racketeering conspiracy and defendant’s membership in it continued into the limitations period.
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Update from the Lexis Alert Service,

July 2009.


Identity theft “In a case involving identity theft, the court found that a search warrant for computer data was valid even though its actual wording was overbroad, since the officers executing the search acted in good faith that the warrant was valid. The defendant was a United States postal worker who intercepted certain credit card information from individuals on her route. After an investigation, postal inspectors applied for a warrant to search both the defendant’s home and computers. The warrant was drafted in such a way that it was overbroad in its reference to the computerized data. However, the court found that because the officers believed the warrant to be valid and limited their search in a reasonable manner, the search was not unconstitutional.”

Citation: U.S. v. Otero, 2009 WL 1119657 (10th Cir. 2009)

Hard drive mirror image “In a case in which a prosecutor has complied with its duty to provide discovery by delivering a transcript of evidence from the hard drive of a police computer, the defendant argued that he had the right to obtain a mirror image of the computer hard drive without making a prima facie showing that the information in the transcript was false, incomplete, adulterated, or spoliated. The court concluded that without making such a showing, the defendant had no right to obtain a copy of the hard drive. The defendant was accused of inappropriate sexual conduct with a minor. The state presented evidence that included transcriptions of chat logs obtained from the defendant’s computer. When the defendant requested a mirror image of the hard drive, the state refused. The court concluded that the transcripts were sufficient evidence and that the defendant’s mere speculation that the original hard drive would vindicate him was insufficient to compel the state to produce a mirror image.”

Boyle v. United States  

No. 07–1309. Decided June 8, 2009. Opinion author: Alito, J.

The evidence at petitioner Boyle’s trial for violating the Racketeer Influenced and Corrupt Organizations Act (RICO) provision forbidding “any person … associated with any enterprise engaged in, or the activities of which affect, interstate or foreign commerce, to conduct or participate, directly or indirectly, in the conduct of such enterprise’s affairs through a pattern of racketeering activity,” 18 U. S. C. §1962(c), was sufficient to prove that Boyle and others committed a series of bank thefts in several States; that the participants included a core group, along with others recruited from time to time; and that the core group was loosely and informally organized, lacking a leader, hierarchy, or any long-term master plan.

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June 4, 2009.

BANKING LAW, SECURITIES LAW Koehler v. Bank of Bermuda Ltd., No. 82 The Court of Appeals answered a certified question from the U.S. Court of Appeals for the Second Circuit as follows: A court sitting in New York may order a bank over which it has personal jurisdiction to deliver stock certificates owned by a judgment debtor (or cash equal to their value) to a judgment creditor, pursuant to CPLR article 52, when those stock certificates are located outside New York.

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May 17-22, 2009.

U.S. Supreme Court, May 18, 2009 Ashcroft v. Iqbal, No. 07-1015 In an action alleging that Plaintiff, who was arrested on suspicion of September-11th terrorist activity, was unconstitutionally detained, the denial of the government’s motion to dismiss is reversed and remanded where the complaint failed to plead sufficient facts to state a claim for purposeful and unlawful discrimination, as it did not show that the government policy under which Plaintiff was detained was based on discriminatory factors.

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May 11-15, 2009.

U.S. 1st Circuit Court of Appeals, May 11, 2009 Pina v. Maloney , No. 07-1267
Denial of petition for habeas relief is affirmed where although plaintiff did not procedurally default his ineffective assistance of counsel claim, the claim still fails on the merits as counsel’s decision to pursue a defense of misidentification rather than an alibi defense was a reasonable, tactical decision. ..

U.S. 1st Circuit Court of Appeals, May 12, 2009 US v. Del Valle , No. 08-1234
District court’s denial of defendant’s motion for a new trial is affirmed where: 1) the defendant did not meet his burden of proving that the newly discovered evidence met the requirements for warranting a new trial; and 2) the court properly rejected defendant’s claim that the government violated Brady by failing to disclose evidence, as defendant cannot show a reasonable probability that this evidence would have changed the outcome of the trial.

U.S. 1st Circuit Court of Appeals, May 15, 2009 US v. Melendez-Rivas, No. 07-1962 Conviction for conspiracy and aiding and abetting a motor vehicle hijacking with intent to cause death is vacated and remanded where: 1) the district court properly denied defendant’s motion for aquittal as the evidence was sufficient to support his conviction; and 2) the district court’s intervention in questioning a defense witness went beyond the appropriate limits and elicited inadmissible, prejudicial testimony that interfered with defendant’s fair trial rights
U.S. 2nd Circuit Court of Appeals, May 13, 2009 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. .

U.S. 2nd Circuit Court of Appeals, May 14, 2009 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 Continue reading

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