Findlaw Case Summaries: Second Circuit U.S. Court of Appeals 6

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April 8-9, 2009.

COMMUNICATIONS LAW, GOVERNMENT LAW, PROPERTY LAW & REAL ESTATE Global Network Communications, Inc. v. City of New York, No. 07-5184 In an action involving the denial of an application for a public pay telephone franchise, district court’s grant of summary judgment for defendant is affirmed where: 1) defendant’s refusal to grant plaintiff a franchise to operate on public rights-of-way on the basis of its past history of fraud is within the scope of the safe harbor exception of Telecommunications Act sec. 253; 2) the court did not err in dismissing plaintiff’s state and federal law preemption claims; and 3) the court did not err in dismissing plaintiff’s federal constitutional claims.

CRIMINAL LAW & PROCEDURE, SENTENCING US v. Martinucci, No. 08-0104 Sentence for production of child pornography is affirmed where: 1) there is no merit to defendant’s claim that the court erred in considering hearsay information in determining the appropriate sentence; and 2) the court did not exceed its sentencing discretion in departing upward under U.S.S.G. sec. 5K2.8 and imposing a term of imprisonment of 300 months, considering the seriousness of the offense and the great harm inflicted on the victim as well as the defendant’s recidivism and lack of remorse.

CRIMINAL LAW & PROCEDURE, SENTENCING, TAX LAW US v. Josephberg, No. 07-3958 Conviction for tax offenses and health care fraud is affirmed where: 1) the government presented sufficient evidence to support defendant’s conviction for income tax evasion and health care fraud; 2) defendant’s conviction for willful failure to file timely income tax returns and willful failure to pay tax did not violate the Fifth Amendment privilege against self incrimination as the pendency of a government investigation does not give a taxpayer a Fifth Amendment option to fail to file a tax return; 3) defendant did not provide sufficient evidence to support his allegations of prosecutorial misconduct; 4) the court did not err in refusing to give jury instruction defendant requested; and 5) the court did not err in sentencing calculations.

CRIMINAL LAW & PROCEDURE, SENTENCING US v. Robles, No. 07-1013 Conviction and sentence for conspiracy to commit Hobbs Act robbery is affirmed where: 1) the district court did not err in calculating defendant’s Sentencing Guidelines range as it properly considered the robberies as objects of the conspiracy even though the robberies were not identified as objects of the conspiracy in the conspiracy count of the indictment; and 2) the court properly enhanced defendant’s sentence based on its finding that the robberies were objects of the overall conspiracy of which defendant was convicted, despite being acquitted of the robbery charge itself.

CRIMINAL LAW & PROCEDURE, SENTENCING US v. McCourty , No. 07-3862 Conviction and sentence for drug crimes is affirmed and remanded where: 1) no constructive amendment resulted when the district court broke the single offense into two parts to be addressed by the jury as neither the trial evidence nor the jury charge altered the superseding indictment; 2) there is no double jeopardy violation in the government’s pursuance of a retrial of the one count of the indictment left undecided by the jury as there was neither a complete acquittal on the count nor an acquittal relating to a key factual element of the crime described in the count; and 3) the court did not abuse its discretion in denying defendant’s motion for a new trial. Case is remanded for the limited purpose of allowing the district court to re-sentence in light of the Supreme Court’s decision in Kimbrough. .

DISPUTE RESOLUTION & ARBITRATION ReliaStar Life Ins. Co. of N.Y. v. EMC Nat’l Life Co., No. 07-0828 In a dispute involving an arbitration award, district court’s judgment is reversed and remanded where the inclusion in an arbitration agreement of a statement that each will bear the expenses of its own arbitrator and attorneys does not deprive the arbitration panel of the authority to award such expenses as a sanction against a party whom the panel determines failed to arbitrate in good faith.

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