Findlaw Case Summaries: Second Circuit U.S. Court of Appeals 13

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August 18 – 27, 2009.

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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.

ADMINISTRATIVE LAW, LABOR & EMPLOYMENT LAW, TRANSPORTATION NLRB v. Consolidated Bus Transit, Inc., No. 08-0856 NLRB’s petition for enforcement of its finding that respondent-employer committed an unfair labor practice by terminating an employee is granted where substantial evidence supported the NLRB’s determination that respondent discharged, instead of temporarily disqualified, the employee from employment as a school bus driver. ..

BANKING LAW, CIVIL PROCEDURE, JUDGMENT ENFORCEMENT Koehler v. Bank of Bermuda Ltd., No. 05-2378 In a proceeding to enforce a default judgment, denial of petitioner’s motion seeking an order and requiring respondent to deliver to petitioner certain stock certificates is vacated where 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 N.Y. C.P.L.R. Article 52, when those stock certificates are located outside New York.

CONSTITUTIONAL LAW, CRIMINAL LAW & PROCEDURE, GOVERNMENT LAW, MEDIA LAW In the Matter of the App. of the N.Y. Times. Co. to Unseal Wiretap & Search Warrant Materials, No. 09-0854 In an appeal from a district court order granting an application by a newspaper to access sealed wiretap applications relating to the investigation of a prostitution ring, the order is reversed where: 1) petitioner did not show good cause to unseal the wiretap-related documents pursuant to Title III of the Omnibus Crime Control and Safe Streets Act of 1968; and 2) petitioner did not have a First Amendment right to gain access to wiretap applications. (Amended opinion)

CONSTITUTIONAL LAW, GOVERNMENT LAW Cooper v. U.S. Postal Serv., No. 07-4825 In an Establishment Clause challenge to religious displays in a contract postal unit operated by a church, summary judgment for plaintiff is vacated where the Establishment Clause requires no more than that the postal counter be free of religious material, and that visual cues distinguish the space operating as a postal facility from the space functioning as purely private property.

CRIMINAL LAW & PROCEDURE, SENTENCING US v. Gamez, No. 07-3660 Defendant’s sentence for illegally reentering the U.S. following removal is vacated where criminal possession of a weapon in the second degree, in violation of N.Y. Penal Law section 265.03, is not a crime of violence for the purposes of Sentencing Guidelines section 2L1.2(b)(1)(A)(ii).

GOVERNMENT LAW, LABOR & EMPLOYMENT LAW, PER CURIAM Ford v. D.C. 37 Union Local 1549, No. 08-2317 In an action for breach of a union’s duty of fair representation under the Labor Management Relations Act (LMRA), dismissal of the action for lack of jurisdiction is affirmed where the LMRA does not apply to public employees.

ADMINISTRATIVE LAW, PUBLIC UTILITIES Brodsky v. Nuclear Reg. Comm., No. 08-1454 In a petition for review of an order of the U.S. Nuclear Regulatory Commission granting an exemption from certain fire safety regulations to an energy company, the petition is dismissed, where 1) the court lacked jurisdiction under the Hobbs Act to review exemptions; and 2) the order being challenged was not an amendment or other order covered by the Hobbs Act. Read more…

CRIMINAL LAW & PROCEDURE, SENTENCING US v. Ray, No. 08-2795 In an appeal from an order sentencing defendant, after a fifteen-year delay, to a one-day term of imprisonment and three years of supervised release with a special condition that she serve six months in a halfway house, the order is vacated where: 1) the Speedy Trial Clause of the Sixth Amendment, which governs the timing of trials, does not apply to sentencing proceedings; but 2) for purposes of a Due Process claim, the delay in the imposition of sentence was not justified by any legitimate reason and caused defendant prejudice insofar as the custodial portion of it threatened to undermine her successful rehabilitation.

CRIMINAL LAW & PROCEDURE, SENTENCING US v. Main, No. 08-4088 In a drug prosecution, a denial of defendant’s motion for a reduction of sentence is affirmed where the district court lacked authority to reduce defendant’s sentence under 18 U.S.C. section 3582(c), because the sentence was dictated by his plea agreement pursuant to Fed. R. Crim. P. 11(c)(1)(C), and not the Sentencing Guidelines related to crack cocaine. ..

DEBT COLLECTION Kuhne v. Cohen & Slamowitz, LLP, No. 08-1669 In an action under the Fair Debt Collection Practices Act claiming that defendants illegally attempted to collect a debt because they were not licensed to do so in New York, the Court of Appeals certifies the following questions to the New York Court of Appeals: 1) whether defendant was a “debt collection agency” under the pre-amendment version of New York City Administrative Code section 20-489(a); and 2) if so, whether defendant violated New York Gen. Bus. Law section 349

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