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ADMINISTRATIVE LAW, AEROSPACE & DEFENSE, LABOR & EMPLOYMENT LAW, MILITARY LAW Dibble v. Fenimore, No. 063307
In an action for administrative relief brought by plaintiff-state National Guard service technician who was denied reenlistment, grant of summary judgment in favor of defendant-Secretary of the Air Force is affirmed where: 1) the doctrine of intramilitary immunity does not preclude a federal court from reviewing a challenge under the Administrative Procedure Act to a decision by the Air Force Board for the Correction of Military Records; and 2) the district court correctly found that the Board’s decision was not arbitrary, capricious, contrary to law, or unsupported by substantial evidence.
CIVIL PROCEDURE, IMMIGRATION LAW Ajlani v. Chertoff, No. 071170
In an action pursuant to 8 U.S.C. section 1447(b) for declaratory and injunctive relief to effect plaintiff’s naturalization as a U.S. citizen and to prohibit his removal from the U.S., dismissal of plaintiff’s action is affirmed where: 1) the district court lacked jurisdiction to review the propriety of the removal proceedings pending against plaintiff; and 2) in light of 8 U.S.C. section 1429, the pendency of those removal proceedings precludes plaintiff from stating a claim for relief under 8 U.S.C. section 1447(b) in the form of an order either (a) compelling defendants to admit plaintiff to U.S. citizenship, or (b) directly granting his naturalization.
CRIMINAL LAW & PROCEDURE, EVIDENCE, SENTENCING US v. Matthews , No. 070699
Conviction and sentence for conspiracy to commit bank robbery and bank robbery are affirmed where: 1) shifting the burden to the defendant under section 3559(c)(3)(A) was constitutional; 2) because defendant did not prove by a preponderance of the evidence that his felonies were not serious, court refrained from addressing the constitutionality of the clear-and-convincing standard; 3) defendant’s Apprendi claim is foreclosed by our case law; and 4) the district court did not err in rejecting of defendant’s fair-trial due process claim as untimely.
CRIMINAL LAW & PROCEDURE, REMEDIES, SENTENCING US v. Ojeikere, No. 071970, 073127
Conviction and sentence for wire fraud and conspiracy to commit wire fraud are affirmed where: 1) the defendant managed and supervised his female criminal accomplice, and, therefore, a two-level enhancement is warranted under Section 17 3B1.1(c); and 2) restitution under the Mandatory Victims Restitution Act of 1996 (MVRA) may not be denied simply because the victim had greedy or dishonest motives, where those intentions were not in pari materia with those of the defendant.
ADMINISTRATIVE LAW, CIVIL RIGHTS, EDUCATION LAW, GOVERNMENT LAW P., by His Parents v. Newington, No. 074652
Final judgment granting defendant’s motion for summary judgment and affirming the decision of an administrative hearing officer that the plaintiff elementary-school student’s Individualized Education Plan for the 2005-2006 academic year complied with the requirement under the Individuals with Disabilities Education Act is affirmed where determining whether a student has been placed in the “least restrictive environment” requires a flexible, fact-specific analysis, considering whether, with the aid of appropriate supplemental aids and services, education in the regular classroom may be achieved, and if not, whether the school has included the student in regular classes, programs, and activities to the maximum extent appropriate.
CRIMINAL LAW & PROCEDURE, GOVERNMENT LAW US v. Kozeny, No. 073107
In charges of violations of the Foreign Corrupt Practices Act (FCPA), the Travel Act, money laundering, and making false statements to an FBI agent, judgment granting defendant’s motion to dismiss as to most of the counts on which he had been indicted is affirmed where the plain language of the provision, and the structure and content of the law by which it was enacted, required the government to apply for a suspension of the running of the statute of limitations before the limitations period expires.
CONSTITUTIONAL LAW, CRIMINAL LAW & PROCEDURE Hartline v. Gallo, No. 065309
In claim for unconstitutional strip search in the absence of individualized suspicion that she was secreting contraband, grant of summary judgment in favor of defendants is vacated in part, affirmed in part, and remanded where: 1) defendant’s evidence demonstrated a violation of her Fourth Amendment right; 2) defendant was subjected to a strip search by the police, pursuant to departmental policy, in the absence of individualized suspicion that she was secreting contraband on her person; and 3) the district court erred in holding that defendant waived the alternative basis for her section 1983 claim, namely, that the officers violated her Fourth Amendment rights by telecasting her strip search through the 20 police station.
CRIMINAL LAW & PROCEDURE, EVIDENCE, SENTENCING US v. Worjloh, No. 063129
Conviction for conspiring to distribute cocaine base and possessing with intent to distribute is affirmed and sentence is vacated and remanded where: 1) federal prosecutors did not seek to offer any evidence obtained by state officials in violation of the Sixth Amendment; 2) district court did not abuse discretion in denying a suppression hearing to enable the court to conclude that contested issues of fact existed as to whether defendant’s initiation of conversation with the federal agents was “anything but voluntary”; 3) defendant did not demonstrate that the affiant knowingly misled the Judge; 4) it was highly unlikely that the challenged jury instruction improperly influenced the jury; and 5) district court has to determine whether it would impose a different sentence given its discretion to depart from the Guidelines for crack cocaine.