U.S. Second Circuit: November 2009 Archives
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November 2009 Archives

US v. Rodriguez, No. 08-2805

Defendants' alien transportation conviction is affirmed where: 1) the strength of the evidence rendered harmless any error that might have occurred with respect to denying one defendant a severance; 2) there was no reason to anticipate that the prosecutor's question would prompt one defendant to volunteer that he was in jail; and 3) the prosecutor merely invited the jury to consider the implausibility of one defendant's claim that the government witnesses were all committing perjury and did not impermissibly vouch for the witnesses.  However, defendants' Hostage Taking Act conviction is reversed where the Act did not apply to an extortion scheme that used brief confinement of a taxi passenger to obtain a somewhat above average taxi fare.

Read US v. Rodriguez, No. 08-2805

Appellate Information

Heard: October 19, 2009

Decided: November 30, 2009

Judges

Opinion by Judge Newman

Counsel

For Appellant:

Beverly Van Ness, New York, NY

For Appellee:

Edward V. Sapone and Nicole Boeckmann, Assistant United States Attorneys, Brooklyn, NY

SEC v. DiBella, No. 08-1673

In an action by the SEC seeking civil penalties for securities fraud, judgment for plaintiff is affirmed where: 1) the district court did not abuse its discretion in concluding that, at the time of the transaction at issue, the government official whose fraud defendants allegedly abetted was a fiduciary with respect to the transaction; 2) the district court did not abuse its discretion in determining that the fee paid to one defendant as part of that transaction was material; and 3) there was substantial evidence that defendant knowingly aided and abetted the official in violating section 10(b) of the Securities Exchange Act and Rule 10b-5.

Read SEC v. DiBella, No. 08-1673

Appellate Information

Argued: May 14, 2009

Decided: November 25, 2009

Judges

Opinion by Judge Wesley

Counsel

For Appellants:

James A. Wade, William J. Kelleher, III, Thomas J. Donlon, Robinson & Cole LLP, Stamford, CT

For Appellee:

Luis De La Torre, Jacob H. Stillman, Securities and Exchange Commission, Washington, DC

Michtavi v. N.Y. Daily News, No. 08-2111

In an action for libel and intentional infliction of emotional distress based on news reports stating that plaintiff, a criminal defendant, was to cooperate with prosecutors, dismissal of the complaint is affirmed where the statement reporting that plaintiff planned to cooperate with authorities was not defamatory as a matter of law.

Read Michtavi v. N.Y. Daily News, No. 08-2111

Appellate Information

Submitted: October 23, 2009

Decided: November 25, 2009

Judges

Opinion by Judge Jacobs

Counsel

For Appellant:

Shemtov Michtavi, pro se, White Deer, PA

For Appellees:

Marion Bachrachm, Dana Moskowitz, DePetris & Bachrach, LLP, New York, NY

O'Rourke v. US, No. 08-6259

In an appeal from a bankruptcy court's order denying debtors' objection to a claim by the IRS, the order is affirmed where: 1) the bankruptcy court's finding that a notice of deficiency was mailed to debtors, based on a certified mail log stamped by the Postal Service and a partial copy of the notice, was not clearly erroneous; 2) debtors identified no affirmative misconduct on the part of the IRS warranting an estoppel; and 3) their argument that the certified mail log was inadmissible was waived.

Read O'Rourke v. US, No. 08-6259

Appellate Information

Argued: September 1, 2009

Decided: November 23, 2009

Judges

Per Curiam

Counsel

For Appellant:

Steven M. Kwartin, Hollywood, FL

For Appellee:

Regina S. Moriarty, John A. DiCicco and Bruce R. EllisenTax Division, Department of Justice, Washington, DC

Davis v. J.P. Morgan Chase & Co., No. 08-4092

In an action challenging a bank's categorization of underwriters as administrative employees exempt from the Fair Labor Standard Act's overtime pay requirements, summary judgment for defendant is reversed where plaintiff's work was not related either to setting "management policies" nor to "general business operations" such as human relations or advertising, 29 C.F.R. section 541.2, but rather concerned the "production" of loans -- the fundamental service provided by the bank.

Read Davis v. J.P. Morgan Chase & Co., No. 08-4092

Appellate Information

Argued: May 12, 2008

Decided: November 20, 2009

Judges

Opinion by Judge Lynch

Counsel

For Appellant:

J. Nelson Thomas, Dolin, Thomas & Solomon LLP, Rochester, NY

For Appellee:

Samuel Shaulson, Carrie A. Gonnell, Morgan, Lewis & Bockius LLP, New York, NY

United Airlines, Inc. v. Brien, No. 04-6018

In a consolidated appeal from three district court orders in actions by international airline companies challenging the INS's imposition of fines against the airlines for bringing undocumented immigrant and non-immigrant aliens into the United States in violation of 8 U.S.C. section 1323, the court of appeals rules as follows.  One order is affirmed in part where the INS did not act arbitrarily when it employed its parole power rather than its visa waiver authority to admit aliens into the U.S.  However, the order is reversed in part where a Board of Immigration Appeals rule, which exempted airlines from liability for bringing an undocumented alien to the U.S. when the alien received a post-arrival visa waiver, was consistent with the Penalty Statute. Another order is reversed where the INS's Rule 60 motion was procedurally defective because the circumstances were not sufficiently extraordinary to merit such relief.  In another matter, summary judgment for the INS is reversed where: 1) the INS's 1996 amendment of its tourist visa waiver regulation was invalid because it was promulgated in violation of the joint action requirement; and 2) the State Department's 1999 version of the tourist visa waiver regulation was invalid because it was promulgated in violation of the joint action requirement and without notice-and-comment.

Read United Airlines, Inc. v. Brien, No. 04-6018

Appellate Information

Argued: May 12, 2008

Decided: November 20, 2009

Judges

Opinion by Judge Hall

Counsel

For Appellants:

Christina Hagan, Jonathan A. Fuchs, Hagan, Coury & Associates, Brooklyn, NY

For Appellee:

Scott Dunn, Roslynn R. Mauskopf, F. Franklin Amanat, Assistant United States Attorneys, Brooklyn, NY

Perez v. Westchester Cty. Dep't of Corr., No. 08-4245

In appeals from an attorney's fees award in Muslim inmates' civil rights suit arising from defendants' refusal to provide them Halal meat, the fees award is affirmed where: 1) plaintiffs were prevailing parties, as they achieved a material alteration in the legal relationship between the parties, and the so-ordered settlement bore judicial imprimatur; and 2) the Prison Litigation Reform Act's fee cap applied even though some plaintiffs were released from prison after the filing of the suit but before the successful resolution of the litigation.

Read Perez v. Westchester Cty. Dep't of Corr., No. 08-4245

Appellate Information

Argued: July 10, 2009

Decided: November 19, 2009

Judges

Opinion by Judge Calabresi

Counsel

For Appellants:

Mary Lynn Nicolas and Martin G. Gleeson, Office of the Westchester County Attorney, White Plains, NY

For Appellees:

Richard Cohen, Donia F. Sawwan, Samantha H. Evans, Kathleen M. Aiello, Matthew Bettinger,  Fox Rothschild LLP, New York, NY

EEOC v. United Parcel Serv., Inc., No. 08-5348

In the EEOC's appeal from a denial of its petition to enforce an administrative subpoena issued to UPS seeking information about how religious exemptions to UPS's Uniform and Personal Appearance Guidelines were handled nationwide, the order is reversed where the district court, in finding that national information was not relevant to the charges being investigated by the EEOC, applied too restrictive a standard of relevance.

Read EEOC v. United Parcel Serv., Inc., No. 08-5348

Appellate Information

Argued: August 24, 2009

Decided: November 19, 2009

Judges

Per Curiam

Counsel

For Appellant:

Julie L. Gantz, James L. Lee, Equal Employment Opportunity Commission, Washington, DC

For Appellee:

Wendy Johnson Lario, Day Pitney LLP, Morristown, NJ

International Action Ctr. v. New York, No. 07-5739

In a First Amendment challenge to a New York City regulation banning new parades on Fifth Avenue, summary judgment for defendant is affirmed where 1) the rule did not seek to regulate messages or distinguish between different types of speech; and 2) plaintiff lacked standing to challenge the provision of the rule establishing punishment for violations because the "chill" on those that might spontaneously join plaintiff's marches was purely conjectural.

Read International Action Ctr. v. New York, No. 07-5739

Appellate Information

Argued: March 6, 2009

Decided: November 17, 2009

Judges

Opinion by Judge Chin

Counsel

For Appellant:

Jeffrey E. Fogel, Gideon Orion Oliver and Palyn Hung, Charlottesville, VA

For Appellee:

Scott Shorr, Ronald E. Sternberg, Office of the Corporation Counsel, New York, NY

US v. Stewart, No. 06-5015

Defendants' convictions for violating government restrictions on communications and other contacts with Sheikh Omar Ahmad Ali Abdel Rahman, a high-security federal prisoner, are affirmed in part where: 1) defendants concealed their efforts to obtain statements from Rahman to publicize on his behalf; 2) Rahman's attorney agreed to the restrictions and thus could not collaterally attack their constitutionality; and 3) a reasonable jury could have found that defendants participated in a conspiracy to murder persons abroad.  However, the sentence of one defendant, who was Rahman's attorney, is vacated where the district court needed to 1) reconsider the extent to which her status as a lawyer affected the appropriate sentence; and 2) determine whether defendant's conduct was perjurious and, if so, determine its effect on her sentence.

Read US v. Stewart, No. 06-5015

Appellate Information

Argued: January 29, 2008

Decided: November 17, 2009

Judges

Opinion by Judge Sack

Concurrence by Judge Calabresi

Dissent by Judge Walker

Counsel

For Appellants:

Joshua L. Dratel, Meredith S. Heller, Erik B. Levin, David B. Rankin, Law Offices of Joshua L. Dratel, P.C., New York, NY

For Appellee:

Anthony S. Barkow, Andrew S. Dember, Michael D. Maimin, Diane Gujarati, Katherine Polk Failla and Celeste L. Koeleveld, Assistant United States Attorneys, New York, NY

Hawknet, Ltd. v. Overseas Shipping Agencies, No. 09-2128

In an appeal from the district court's order vacating the attachment of an electronic funds transfer (EFT), the order is affirmed and the case is remanded for an order to show cause why the action should not be dismissed for lack of personal jurisdiction where: 1) the rule announced recently in Shipping Corp. of India Ltd. v. Jaldhi Overseas Pte Ltd., __ F.3d __, No.08-3477, 2009 WL 3319675 (2d Cir. Oct. 16, 2009), applies retroactively; and 2) a party's failure to assert an argument prior to the announcement of a decision which might support it does not constitute waiver.

Read Hawknet, Ltd. v. Overseas Shipping Agencies, No. 09-2128

Appellate Information

Submitted: June 16, 2009

Decided: November 13, 2009

Judges

Opinion by Judge Cabranes

Counsel

For Appellant:

Keith W. Heard, Burke & Parsons, New York, NY

For Appellee:

Robert K. Gross, Alan Van Praag and Edward W. Floyd, Eaton & Van Winkle LLP, New York, NY

Puglisi v. US, No. 04-4834

In an appeal from the district court's denial of defendant's 28 U.S.C. section 2255 motion to vacate his conviction and sentence due to ineffective assistance of counsel, the order is affirmed where defendant failed to produce or identify evidence of actual prejudice.

Read Puglisi v. US, No. 04-4834

Appellate Information

Argued: January 29, 2008

Decided: November 17, 2009

Judges

Opinion by Judge Winter

Counsel

For Appellant:

Cheryl J. Sturm, Chadds Ford, PA

For Appellee:

Jo Ann M. Navickas, Peter A. Norling, Assistant United States Attorneys, Brooklyn, NY

Warney v. Monroe Cty., No. 08-0947

In a civil rights action alleging that the exculpatory result of post-trial DNA testing was not timely disclosed to plaintiff, denial of defendant-prosecutors' motion for summary judgment based on absolute or qualified immunity is reversed where, because the testing was undertaken in connection with post-trial proceedings and was therefore integral to the advocacy function, the prosecutors enjoyed absolute immunity under Imbler v. Pachtman, 424 U.S. 409 (1976).

Read Warney v. Monroe Cty., No. 08-0947

Appellate Information

Argued: June 1, 2009

Decided: November 13, 2009

Judges

Opinion by Judge Jacobs

Counsel

For Appellants:

Michael E. Davis, Second Deputy County Attorney, Rochester, NY

For Appellee:

Deborah L. Cornwall, Peter J. Neufeld and Sarah Crowley, Cochran Neufeld & Scheck, LLP, New York, NY

Young v. Cooper Cameron Corp., No. 08-5847

In an action seeking unpaid overtime under the Fair Labor Standards Act, summary judgment for plaintiff is affirmed where: 1) plaintiff, a Product Design Specialist, was outside the "professional exemption" to the FLSA's overtime requirements and 2) defendant's violation of the FLSA was willful.

Read Young v. Cooper Cameron Corp., No. 08-5847

Appellate Information

Argued: September 9, 2009

Decided: November 12, 2009

Judges

Opinion by Judge Jacobs

Counsel

For Appellant:

Jennifer B. Rubin, John M. Delehanty and Andrew Nathanson, Mintz, Levin, Cohn, Ferris, Glovsky & Popeo, P.C., New York, NY

For Appellee:

Michael J.D. Sweeney, Getman & Sweeney PLLC, New Paltz, NY

Wilson v. CIA, No. 07-4244

In a First Amendment action claiming that the CIA was required to allow former employee Valerie Plame Wilson to publish a memoir about her tenure at the agency, summary judgment for defendants is affirmed where: 1) plaintiff, and not the agency, permitted the classified information at issue to be revealed to the public; and 2) further, the public disclosure did not deprive the information of classified status, and the agency demonstrated good reason for adhering to its classification decision. A former CIA agent cannot use her own unauthorized disclosure of classified information to challenge the CIA's ability to maintain the information as classified.

Read Wilson v. CIA, No. 07-4244

Appellate Information

Argued: January 8, 2009

Decided: November 12, 2009

Judges

Opinion by Judge Raggi

Counsel

For Appellants:

David B. Smallman, Smallman & Hans LLP, New York, NY

For Appellees:

Benjamin H. Torrance, Beth E. Goldman, Assistant United States Attorneys, New York, NY

Ortiz v. N.Y.S. Parole in Bronx, No. 07-2299

In a petition for habeas relief from petitioner's convictions for first degree riot and second degree assault under New York law, denial of the petition is affirmed where the New York courts' rejection of petitioner's due process claim and, specifically, his contention that the law did not make it reasonably clear at the relevant time that his conduct was criminal, was not an unreasonable application of clearly established federal law.

Read Ortiz v. N.Y.S. Parole in Bronx, No. 07-2299

Appellate Information

Argued: April 20, 2009

Decided: November 10, 2009

Judges

Opinion by Judge Livingston

Counsel

For Appellant:

Susan D. Fitzpatrick, Law Offices of Susan D. Fitzpatrick, Esq., Red Hook, NY

For Appellee:

Jodi A. Danzig, Assistant Attorney General, New York, NY

US v. Hasan, No. 08-4921

Defendant's conviction and sentence for making a false statement on a passport application is affirmed where: 1) 18 U.S.C. section 1542 does not require that the false statement on a passport application be "material"; and 2) the district court did not err in imposing an enhancement for obstruction of justice where defendant's abduction of his children prevented proper legal proceedings from occurring by taking matters completely outside the purview of the administration of justice.

Read US v. Hasan, No. 08-4921

Appellate Information

Argued: October 6, 2009

Decided: November 10, 2009

Judges

Opinion by Judge Cabranes

Counsel

For Appellant:

B. Alan Seidler, New York, NY

For Appellee:

Daniel A. Spector, Jo Ann M. Navickas, Assistant United States Attorneys, Brooklyn, NY

Heath v. SEC, No. 09-0825

Investment banker's petition for review of the SEC's affirmance of the New York Stock Exchange's (NYSE) finding that petitioner violated NYSE Rule 476(a)(6) by disclosing a client's confidential information to a third party, the petition is denied where: 1) a violation of the rule did not require bad faith; 2) mere unethical conduct was sufficient for violation of the rule outside the breach of contract context; and 3) summary judgment was appropriate on the issue of petitioner's guilt.

Read Heath v. SEC, No. 09-0825

Appellate Information

Argued: September 16, 2009

Decided: November 4, 2009

Judges

Opinion by Judge Straub

Counsel

For Petitioner:

Gary P. Naftalis, Michael S. Oberman, Alan R. Friedman, Kramer Levin Naftalis & Frankel, LLP, New York, NY

For Respondent:

Dominick V. Freda, David M. Becker, Securities and Exchange Commission, Washington, DC

Liberty Mut. Ins. Co. v. Hurlbut, No. 09-1215

In a constitutional challenge to two amendments to the New York Workers' Compensation Law, the district court's judgment abstaining from the case is affirmed where Burford abstention was appropriate because federal court intervention would be disruptive of a carefully established state system, and might also yield inconsistent and therefore conflicting results.

Read Liberty Mut. ins. Co. v. Hurlbut, No. 09-1215

Appellate Information

Argued: June 22, 2009

Decided: November 4, 2009

Judges

Opinion by Judge Miner

Counsel

For Appellants:

Mark F. Horning, Jeffrey M. Theodore, Steptoe & Johnson LLP, Washington, DC

For Appellees:

Steven C. Wu, New York, NY

General Star Nat. Ins. Co. v. Universal Fabricators, Inc., No. 07-4443

In an action claiming that defendant insurer was bound by the terms of an excess insurance policy it had issued to contribute to the satisfaction of a state-court judgment of liability in a personal injury action against two entities for whom the insured had been a contractor, summary judgment for plaintiffs is reversed where the district court erred in deciding that the state-court judgment established legal liability against the insured.

Read General Star Nat. Ins. Co. v. Universal Fabricators, Inc., No. 07-4443

Appellate Information

Argued: September 3, 2008

Decided: November 5, 2009

Judges

Opinion by Judge Sack

Counsel

For Appellant:

Christopher Bradley, Marshall, Conway, Wright & Bradley, P.C., New York, NY

For Appellees:

Patrick W. Brophy, McMahon, Martine & Gallagher, LLP, Brooklyn, NY

Ogle v. Fidelity & Deposit Co. of Md., No. 09-0691

In an appeal from the district court's affirmance of the bankruptcy court's order requiring a liquidating trust to pay post-petition attorneys' fees on a claim that stemmed from a pre-petition indemnity agreement, the judgment is affirmed where such claims are categorically allowable.

Read Ogle v. Fidelity & Deposit Co. of Md., No. 09-0691

Appellate Information

Argued: October 15, 2009

Decided: November 5, 2009

Judges

Opinion by Judge Jacobs

Counsel

For Appellant:

Jeffrey A. Dove and James C. Thoman, Menter, Rudin & Trivelpiece, P.C., Syracuse, NY

For Appellee:

Glenn M. Fjermedal, Lacy Katzen LLP, Rochester, NY

US v. Aguilar, No. 08-4640

Defendant's drug-related murder conviction is affirmed where there was sufficient evidence demonstrating that defendant induced his drug associates to participate in the victim's murder through promises to forgive drug-related debts and to engage in future drug transactions.

Read US v. Aguilar, No. 08-4640

Appellate Information

Argued: September 21, 2009

Decided: November 5, 2009

Judges

Opinion by Judge Raggi

Counsel

For Appellant:

James E. Neuman and David Stern, New York, NY

For Appellee:

David Bitkower and Emily Berger, Assistant United States Attorneys, Brooklyn, NY

Moore v. Delaware, No. 08-2426

In a motion for costs by the prevailing party in an appeal, the motion is denied where, while an award of costs to a prevailing party pursuant to Rule 39 is customary, the court retained discretion to deny costs when, in the exercise of its discretion, it determines taxation is not appropriate, and equitable considerations militated against taxing costs.

Read Moore v. Delaware, No. 08-2426

Appellate Information

Argued June 17, 2009

Decided July 27, 2009

Judges

Per Curiam

Counsel

For Appellee:

Frank W. Miller, The Law Firm of Frank W. Miller, East Syracuse, NY

For Appellants:

Catherine E. Stuckart, Binghamton, NY

Arar v. Ashcroft, No. 06-4216

In an action under the Torture Victim Protection Act and the Fifth Amendment based on plaintiff's detention at a U.S. airport and subsequent removal to and alleged torture in Syria, the dismissal of the complaint is affirmed where 1) plaintiff insufficiently pleaded that the alleged conduct of defendant U.S. officials was done under color of Syrian law; and 2) in the context of extraordinary rendition, allowing a Bivens action against policymaking federal officials would have the natural tendency to affect diplomacy, foreign policy, and the security of the nation. 

Read Arar v. Ashcroft, No. 06-4216

Appellate Information

In Banc Rehearing: December 9, 2008

Decided: November 2, 2009

Judges

Opinion by Judge Jacobs

Dissents by Judge Calabresi, Judge Pooler, Judge Sack and Judge Parker

Counsel

For Appellant:

David Cole, Maria Couri LaHood, Jules Lobel, Katherine Gallagher, Center for Constitutional Rights, New York, NY

For Appellees:

Jonathan F. Cohn, Larry Lee Gregg, R. Joseph Sher, Dennis C. Barghaan, Assistant United States Attorneys, U.S. Department of Justice, Washington, DC