Findlaw Case Summaries: Second Circuit U.S. Court of Appeals October 16-20, 2008

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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. .

CIVIL PROCEDURE, CONSTITUTIONAL LAW, GOVERNMENT LAW, PROPERTY LAW & REAL ESTATE Diaz v. Paterson , No. 052685, 063942, 063992 In a putative class action challenging the constitutionality of state civil procedure law, which allows a plaintiff who brings a lawsuit claiming interest in real property to file a lis pendens with respect to the property, is affirmed where the state’s lis pendens law as applied to plaintiffs did not offend the Constitution as construed by Connecticut v. Doehr, 501 U.S. 1 (1991).

IMMIGRATION LAW Alibasic v. Mukasey, No. 064046 Petition to review decision of Board of Immigration Appeals (BIA) vacating grant of Albanian Muslim-petitioner’s application for asylum from violent disintegration of the former Yugoslavia, is granted where the BIA did not demonstrate that its decision was supported by “substantial evidence in the record,” especially because it did not even address the evidence of continued persecution of Serbian minorities identified by the Immigration Judge in supporting materials submitted by petitioner and in the 2004 Country Report itself.

BANKRUPTCY LAW, COMMERCIAL LAW, TRANSPORTATION In Re: Peaslee, No. 073962 In appeal from judgment reversing a Bankruptcy Court court finding that negative equity on a trade-vehicle is included in the purchase money security acompanying a new car’s purchase and is therefore protected from cramdown by the Hanging Paragraph of Section 1325 of the Bankruptcy code, the court here certifies the question of whether negative equity is included in a purchase money security interest under state’s interpretation of the Uniform Commercial code (UCC).

CIVIL PROCEDURE, SECURITIES LAW ATSI Communications, Inc. v. The Shaar Fund, Ltd., No. 081815 In a securities-fraud action, motion to vacate judgment for monetary sanctions against plaintiff’s counsel is denied where the general rule governing a court of appeals’ vacatur of a district court’s judgment after the case has been settled applied, where the settlement is, by its terms, conditioned upon vacatur and no special circumstances obtain.

CRIMINAL LAW & PROCEDURE, EVIDENCE US v. Gomez, No. 050236, 051113 Conviction for conspiracy to import ecstasy, importing ecstasy, conspiracy to distribute and possess with intent to distribute ecstasy, and possession with intent to distribute ecstasy is reversed and remanded where the evidence was insufficient to demonstrate the specific intent element of each of the offenses.

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