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U.S. Supreme Court, March 08, 2010 Milavetz, Gallop & Milavetz, P.A. v. US, No. 08–1119 In an action by a law firm seeking declaratory relief, arguing that plaintiff was not bound by the Bankruptcy Abuse Prevention and Consumer Protection Act’s (BAPCPA) debt relief agency provisions and therefore could freely advise clients to incur additional debt and need not make the requisite disclosures in its advertisements, the Eighth Circuit’s order rejecting the district court’s conclusion that attorneys are not “debt relief agencies” under BAPCPA, upholding application of BAPCPA’s disclosure requirements to attorneys, and finding BAPCPA section 526(a)(4) unconstitutional, is affirmed in part where: 1) attorneys who provided bankruptcy assistance to assisted persons were debt relief agencies under the BAPCPA; and 2) BAPCPA section 528’s requirements were reasonably related to the government’s interest in preventing consumer deception. However, the court of appeals’ order is reversed in part where BAPCPA section 526(a)(4) prohibited a debt relief agency only from advis! ing a debtor to incur more debt because the debtor was filing for bankruptcy, rather than for a valid purpose. .

U.S. 1st Circuit Court of Appeals, March 10, 2010 Foley v. Town of Randolph, No. 09-1558 In plaintiff’s 42 U.S.C. section 1983 suit claiming that he was wrongfully retaliated against in violation of his First Amendment rights when he was suspended, as a Chief of the Fire Department, for fifteen days based on public statements he made at the scene of a fatal fire, district court’s grant of summary judgment in favor of the defendants is affirmed as, under the circumstances of the press conference in the case, there could be no doubt that plaintiff was speaking in his official capacity and not as a citizen when he addressed budgetary and staffing shortfalls the department.

U.S. 1st Circuit Court of Appeals, March 11, 2010 Peralta v. US, No. 08-1765 In proceedings involving defendant’s pro se motion under 28 U.S.C. section 2255 to vacate his sentence on grounds of ineffective assistance of counsel in connection with his guilty plea, sentencing, and direct appeal, the district court’s denial of the motion is affirmed where: 1) the district court did not commit err in finding that defendant was not denied constitutionally effective assistance of counsel; and 2) defendant’s other issues outside the certificate of appealability are waived Continue reading

November 9-13, 2009.

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U.S. Supreme Court, November 09, 2009 Bobby v. Van Hook, No. 09–144 In a capital habeas matter, a circuit court of appeals’ grant of the petition on the basis that petitioner’s lawyers performed deficiently in investigating and presenting mitigating evidence is reversed where: 1) the court of appeals applied 2003 ABA Professional Guidelines to defense counsel’s conduct at a trial that took place in 1985; and 2) counsel’s performance at the trial was not deficient under the standards in place at the time.

U.S. 1st Circuit Court of Appeals, November 10, 2009 US v. Villar, No. 08-1154 In proceedings arising after defense counsel in a criminal matter received an e-mail from a juror containing ethnically-biased statements, an order denying defendant’s motion to make an inquiry into the validity of the verdict is reversed and the matter remanded where: 1) although the trial court correctly found that Rule of Evidence 606(b) precludes inquiry into juror prejudice; 2) a court has the discretion to conduct such an inquiry under the Sixth Amendment and the Due Process Clause of the United States Constitution. …

U.S. 1st Circuit Court of Appeals, November 12, 2009 Cabral v. US Dep’t of Justice, No. 07-1633 In an appeal arising from an underlying action brought by a nurse practitioner claiming that defendant-sheriff barred plaintiff from a County House of Correction (HOC) for informing the FBI of alleged prisoner abuse at the HOC, denial of defendants’ motions for a new trial and for remittur is affirmed where: 1) there is nothing in the record indicating that the district court abused its discretion in making its pre-trial evidentiary and disclosure rulings; 2) district court’s dismissal of defendants’ action under the Administrative Procedure Act (APA) was proper as there was nothing in the record indicating that agency’s denial of the defendants’ Touhy requests was arbitrary and capricious; 3) the evidence was sufficient to establish that the sheriff engaged in the callous and reckless conduct necessary to support an award of punitive damages; and 4) the award of punitive damages of $250,000 against sheriff was not excessive.
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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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