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

US v. MacPherson, No. 08-1829

Defendant's drug distribution sentence following a guilty plea is affirmed where: 1) the agreement and the plea colloquy put the defendant on notice that the Pimentel drug quantity estimate was not binding on the prosecutor and that if the estimate was wrong, the plea could not be withdrawn; and 2) there was no authority that prevented a sentencing judge from using facts of the offense conduct both to determine the applicable Sentencing Guidelines range and to select a sentence within that range.

Read US v. MacPherson, No. 08-1829

Appellate Information

Submitted: October 19, 2009

Decided: December 30, 2009

Judges

Per Curiam

Counsel

For Appellant:

Todd M. Merer, New York, NY

For Appellee:

Benton J. Campbell, Susan Corkery, Licha M. Nyiendo, Asst. U.S. Attys., Brooklyn, NY

Wilner v. Nat'l Sec. Agency, No. 08-4726

In a Freedom of Information Act (FOIA) action filed by attorneys for Guantanamo Bay detainees seeking information regarding whether the government intercepted plaintiffs' communications relating to the representation of their detainee clients, an order upholding the National Security Agency's (NSA) and Department of Justice's responses neither confirming nor denying the existence of such records is affirmed where: 1) a Glomar response was available to agencies as a valid response to FOIA requests; 2) an agency may issue a Glomar response to FOIA requests seeking information obtained pursuant to a publicly acknowledged intelligence program, at least when the existence of such information has not already been publicly disclosed; 3) the NSA properly invoked the Glomar doctrine in response to plaintiffs' request for information pursuant to FOIA Exemption 3; 4) the government's affidavits sufficiently alleged the necessity of a Glomar response in this case, making it unnecessary for the court to review or to require the district court to review ex parte and in camera any classified affidavits that the NSA might proffer in support of its Glomar response; and 5) there was no evidence in the record that the NSA invoked Glomar for the purpose of concealing activities that violated the Constitution or were otherwise illegal.

Read Wilner v. Nat'l Sec. Agency, No. 08-4726

Appellate Information

Argued: October 9, 2009

Decided: December 30, 2009

Judges

Opinion by Judge Cabranes

Counsel

For Appellants:

Kathryn A. Sabbeth, David C. Vladeck and Karen Borg, Georgetown University Law Center Institute for Public Representation

For Appellee:

Thomas M. Bondy, Michael F. Hertz and Lev Dassin, U.S. Department of Justice, Washington, DC

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

In an action by an insurer seeking a declaration that defendant-excess insurer was required to reimburse plaintiff for part of a settlement of a personal injury action, summary judgment for defendant is reversed where the district court erred in deciding that the underlying state-court judgment established legal liability against the insured and thus precluded recovery under the policy.

Read General Star Nat'l 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

Kirschner v. KPMG LLP, No. 09-2020

In an action brought by the trustee of a litigation trust, resulting from a bankruptcy proceeding, in which the trustee alleged misconduct by corporate insiders and advisers, the Court of Appeals certifies the following questions to the Court of Appeals of New York: 1) the over-arching question whether the allegations of the complaint in this case satisfied the "adverse interest" exception to the Wagoner rule of imputing insiders' misconduct to their corporation, and the following subsidiary questions subsumed within that ultimate question: 2) whether the adverse interest exception was satisfied by showing that the insiders intended to benefit themselves by their misconduct; 3) whether the exception was available only where the insiders' misconduct harmed the corporation; 4) if harm was required, whether the analysis of such harm could include any detriment to a corporation resulting from the eventual unmasking of the misconduct; 5) if harm was required, whether such harm could be determined by considering a corporation and its related corporations as a single enterprise; 6) if harm was required and was to be determined with respect to separate though related corporations, whether the complaint adequately alleged such harm; 7) whether the exception was precluded where the misconduct conferred some benefit upon the corporation; and 8) if the adverse interest exception were otherwise available, would it be precluded by the "sole actor" rule?

Read Kirschner v. KPMG LLP, No. 09-2020

Appellate Information

Heard: September 18, 2009

Decided: December 23, 2009

Judges

Opinion by Judge Newman

Counsel

For Appellant:

Kathleen M. Sullivan, Richard I. Werder, Jr., Sascha N. Rand, Sanford I. Weisburst, Quinn Emanuel Urquhart Oliver & Hedges, LLP, New York, NY

For Appellee:

Linda T. Coberly, Winston & Strawn LLP, Chicago, IL

Kevin A. Burke, Gary Bendinger, Howrey, LLP, New York, NY

Fulton v. Goord, No. 06-5023

In an action under the Americans with Disabilities Act and the Rehabilitation Act regarding defendants' alleged failure to accommodate plaintiff's disabilities when she was visiting her incarcerated spouse, dismissal of the complaint is reversed where: 1) plaintiff alleged that she was discriminatorily denied a reasonable accommodation for her disability in violation of her rights under the two acts, and thus had Article III standing; and 2) the district court failed to address whether plaintiff had sufficiently alleged that defendants administered the inmate visitor program in a discriminatory fashion, despite this issue being at the core of her complaint.

Read Fulton v. Goord, No. 06-5023

Appellate Information

Argued: April 7, 2009

Decided: December 22, 2009

Judges

Opinion by Judge Walker

Counsel

Samuel J. Lieberman, Bernstein Litowitz Berger & Grossman LLP, New York, NY

Douglas F. Curtis, Shauna K. Friedman,Wilmer Culter Pickering Hale and Dorr LLP, New York, NY

For Appellees:

Kate H. Nepveu, Barbara D. Underwood, Andrea Oser, State of New York, Albany, NY

Palacios v. Burge, No. 07-0470

In a murder prosecution, the denial of petitioner's habeas petition alleging ineffective assistance of counsel is affirmed where: 1) it was not ineffective assistance to fail to raise a Fourth Amendment claim challenging a show-up, which involved exigent circumstances and, based on the totality of the circumstances, was reasonable; and 2) similarly, it was not ineffective assistance to fail to challenge petitioner's subsequent confession as the fruit of the show-up where there was an insufficient showing that the show-up was unconstitutional.

Read Palacios v. Burge, No. 07-0470

Appellate Information

Argued: March 11, 2009

Decided: December 21, 2009

Judges

Opinion by Judge Walker

Counsel

For Appellant:

Lawrence T. Hausman, Steven Banks, Legal Aid Society, Criminal Appeals Bureau, New York, NY

For Appellees:

Jill A. Gross-Marks, John M. Castellano, Assistant District Attorneys, Queens County, Kew Gardens, NY

US v. Frankel, No. 06-1752

In a wire fraud prosecution, the court of appeals' prior order relieving appointed counsel as a sanction for defendant's misconduct is vacated where the order was not preceded by notice to defendant and an opportunity to respond.  Thus, the court of appeals' prior dismissal of defendant's appeal for failure to file a timely pro se brief is also vacated.

Read US v. Frankel, No. 06-1752

Appellate Information

Filed October 5, 2009

Decided December 21, 2009

Judges

Per Curiam

Counsel

For Appellant:

Martin Frankel, Big Spring, TX

For Appellee:

John H. Durham, Asst. U.S. Atty., New Haven, CT

New York v. Nuclear Reg. Comm'n, No. 08-3903

In a petition for review of the Nuclear Regulatory Commission's denial of rulemaking petitions filed by Massachusetts and California, the petition is denied where the Commission gave due consideration to the relevant studies, and thus the court was required to defer to their expertise in determining the proper risk level associated with the storage of nuclear material in spent fuel pools.

Read New York v. Nuclear Reg. Comm'n, No. 08-3903

Appellate Information

Argued: October 23, 2009

Decided: December 21, 2009

Judges

Per Curiam

Counsel

For Petitioners:

John J. Sipos, Monica Wagner, Andrew M. Cuomo and Barbara D. Underwood, State of New York, Albany, NY

Matthew Brock and Martha Coakley, Commonwealth of Massachusetts, Boston, MA

For Respondent:

James E. Adler, Stephen G. Burns, John F. Cordes, Jr. and Sean D. Croston, U.S. Nuclear Regulatory Commission, Washington, DC

In re: DeMell, No. 07-9040

The recommendation of the Court's Committee on Attorney Admissions and Grievances that an attorney be publicly reprimanded is adopted where: 1) the attorney failed to show that the Committee's failure to grant access to certain interview notes prejudiced him in any way; and 2) it remained unclear whether the attorney fully accepted the fact that he engaged in serious misconduct and whether he was fully committed to mending his ways.

Read In re: DeMell, No. 07-9040

Appellate Information

Filed December 21, 2009

Judges

Per Curiam

Counsel

For Petitioner:

Roger B. Adler, New York, NY

Tuccio v. Marconi, No. 07-5493

In a 42 U.S.C. section 1983 action claiming that a town selectman violated plaintiff's right to petition the government under the First Amendment by refusing to meet with him in retaliation for his filing a lawsuit against the town, judgment as a matter of law for defendants is affirmed where, given that plaintiff had no business with the town and suffered no harm or injury, the town's reasonable precaution to communicate with an adverse litigant only in writing was not a violation of a constitutional right.

Read Tuccio v. Marconi, No. 07-5493

Appellate Information

Argued: January 14, 2009

Decided: December 18, 2009

Judges

Opinion by Judge Leval

Counsel

For Appellants:

John R. Williams, John R. Williams & Associates, LLC, New Haven, CT

For Appellees:

Thomas R. GerardeHowd & Ludorf, LLC, Hartford, CT

Turkmen v. Ashcroft, No. 06-3745

In an action claiming abuse, mistreatment, and detention of Arab and Muslim aliens who were held on immigration violations in the wake of the terrorist attacks of September 11, 2001, an order partially dismissing the complaint is affirmed in part where there was no clearly established equal protection right to be free of selective enforcement of immigration laws based on national origin, race, or religion at the time of plaintiffs' detentions.  However, the order is vacated in part where defendant-officials were entitled to qualified immunity because a law enforcement official's actual motivation for the Fourth Amendment seizure of a person was constitutionally irrelevant if the seizure was supported by probable cause.

Read Turkmen v. Ashcroft, No. 06-3745

Appellate Information

Argued: February 14, 2008

Decided: December 18, 2009

Judges

Per Curiam

Counsel

For Appellants:

Robert M. Loeb, Peter D. Keisler, Gregory G. Garre, Jonathan F. Cohn and R. Craig Lawrence, United States Department of Justice, Washington, DC

For Appellees:

Michael Winger, C. William Phillips, Kate Greenwood, Amanda J. Gourdine, and Kimberly Zelnick, Covington & Burling LLP, New York, NY

Claudia SlovinskyLaw Offices of Claudia Slovinsky, New York, NY

US v. Hester, No. 08-4665

Defendant's conviction for traveling in interstate commerce and failing to register or update his sex offender registration in violation of the Sex Offender Registration and Notification Act (SORNA) is affirmed where the fact that defendant had no actual notice of SORNA was not sufficient to render his prosecution pursuant to that statute a violation of his due process rights.

Read US v. Hester, No. 08-4665

Appellate Information

Submitted: June 16, 2009

Decided: December 16, 2009

Judges

Per Curiam

Counsel

For Appellant:

Timothy E. Austin and Molly Corbett, Office of the Federal Public Defender, Albany, NY

For Appellee:

Brenda K. Sannes and Andrew T. Baxter, Office of the United States Attorney for the Northern District of New York, Syracuse, NY

Richard S. v. Carpinello, No. 08-4197

In a habeas petition seeking release from involuntary confinement in a psychiatric hospital, the denial of the petition is affirmed where the involuntary commitment standard in Kansas v. Crane, 534 U.S. 407 (2002), applies to insanity acquittees, but the New York courts did not unreasonably conclude that petitioner's continued involuntary confinement met the requirements of the due process clause.

Read Richard S. v. Carpinello, No. 08-4197

Appellate Information

Argued: July 9, 2009

Decided: December 15, 2009

Judges

Opinion by Judge Sessions

Counsel

For Petitioner:

Arthur A. Baer, Dennis B. Feld, Mental Hygiene Legal Service, Mineola, NY

For Respondent:

Andrew M. Cuomo, Alyson J. Gill and Elaine L. Block, Office of the Attorney General, New York, NY

Lynch v. N.Y., No. 08-5250

In an action challenging the constitutionality of a New York Police Department (NYPD) policy that required that a breathalyzer test be administered to every NYPD officer who caused injury or death as a result of firing his or her gun, denial of a preliminary injunction is affirmed where: 1) the district court did not make a clearly erroneous assessment of the evidence when it found that the primary purpose of the breathalyzer policy was not the NYPD's general interest in crime control, and thus fell under the "special needs" doctrine of Fourth Amendment jurisprudence; 2) the fact that crime control was one purpose -- but not the primary purpose -- of the breathalyzer policy did not bar the application of the "special needs" doctrine to the breathalyzer policy; and 3) based on the record at this stage of the proceedings, the breathalyzer policy was reasonable under the three-factor balancing test of the "special needs" doctrine.

Read Lynch v. N.Y., No. 08-5250

Appellate Information

Argued November 18, 2009

Decided December 11, 2009

Judges

Opinion by Judge Cabranes

Counsel

For Appellants:

Thomas P. Puccio, Michael T. Murray, New York, NY

For Appellees:

Jane L. GordonEdward F.X. Hart and Alan M. Schlesinger, New York, NY

Sacirbey v. Guccione, No. 06-5137

In a habeas petition challenging an order extraditing plaintiff to Bosnia, denial of the petition is reversed where the relevant arrest warrant was issued by a court that neither had jurisdiction over the matter nor authority to enforce the warrant, and thus the requirement of the Treaty for Mutual Extradition of Fugitives from Justice between the U.S. and Bosnia that an individual be "charged" with an extraditable offense had not been satisfied.

Read Sacirbey v. Guccione, No. 06-5137

Appellate Information

Argued: February 26, 2008

Decided: December 9, 2009

Judges

Opinion by Judge Cabranes

Counsel

For Appellant:

James J. McGuire, Kesari Ruza, Timothy J. McCarthy, Elizabeth Rotenberg-Schwartz and Sean J. Kirby, Sheppard, Mullin, Richter & Hampton LLP, New York, NY

For Appellee:

Anjan Sahni, Michael J. Garcia, Jonathan S. Kolodner, Office of the United States Attorney for the Southern District of New York, New York, NY

United Transp. Union v. Nat'l. R.R. Passenger Corp., No. 08-0854

In defendant-Amtrak's appeal from an order setting aside an award issued by a special adjustment board constituted pursuant to the Railway Labor Act (RLA), the order is reversed where the board did not exceed its jurisdiction under the RLA when it held that Amtrak was permitted to discipline an employee for conduct that occurred while that employee was functioning as a union representative.

Read United Transp. Union v. Nat'l. R.R. Passenger Corp., No. 08-0854

Appellate Information

Argued: April 3, 2009

Decided: December 9, 2009

Judges

Opinion by Judge Sullivan

Counsel

For Plaintiffs:

Kevin C. Brodar, Clinton J. Miller, III, United Transportation Union, Cleveland, OH

For Defendant:

Thomas E. Reinert, Jr., Jonathan C. Fritts and Kirsten B. White, Morgan Lewis & Bockius, LLP, Washington, DC

WWBITV, Inc. v. Vill. of Rouses Point, No. 08-5112

In a 42 U.S.C. section 1983 action arising out of the demolition of plaintiffs' building by defendant village after a fire, summary judgment for defendants is affirmed where: 1) plaintiffs failed to produce evidence sufficient to create a genuine dispute concerning whether defendants abused their discretion in determining that an emergency existed; and 2) given the eventual dismissal of all of plaintiffs' federal claims, the district court acted well within its discretion in declining to assert supplemental jurisdiction over plaintiffs' state-law claim.

Read WWBITV, Inc. v. Vill. of Rouses Point, No. 08-5112

Appellate Information

Argued: August 27, 2009

Decided: December 9, 2009

Judges

Opinion by Judge Lynch

Counsel

For Appellants:

Mar Schneider, Plattsburgh, NY

For Appellee:

Thomas W. Plimpton, Stafford, Owens, Piller, Murnane & Trombley, PLLC, Plattsburgh, NY

Pierre v. Holder, No. 08-6217

In a petition for review of the BIA's order removing petitioner from the U.S. for committing an aggravated felony, the petition is granted where: 1) petitioner was not charged, either explicitly or implicitly, with an aggravated felony as defined by 8 U.S.C. section 101(a)(43)(U); 2) subsection U is not a necessarily included offense under subsection M of the same statute; and 3) petitioner therefore was denied her due process rights of notice and an opportunity to be heard when the BIA sua sponte found her removable on the basis of her conviction for an aggravated felony as defined by subsection U.

Read Pierre v. Holder, No. 08-6217

Appellate Information

Argued: September 24, 2009

Decided: December 8, 2009

Judges

Opinion by Judge Walker

Counsel

For Petitioner:

Sarah Loomis Cave, Hughes Hubbard & Reed LLP, New York, NY

For Respondent:

Edward E. Wiggers and John S. Hogan, Office of Immigration Litigation, Civil Division, United States Department of Justice, Washington, DC

Jones v. Richards-Cantave, No. 07-2042

In an appeal from an order approving a settlement agreement in a class action challenging policies adopted by the New York City Administration for Children's Services relating to the removal of children from their homes in cases of abuse and neglect, the order is affirmed in part where: 1) the district court erred in finding that the objector had opted out and, consequently, in removing her as class representative, but the error was harmless; and 2) the agreement was fair, adequate, and reasonable.  However, the order is vacated in part where the text of a release provision did not comport with the undisputed intent of the parties.

Read Jones v. Richards-Cantave, No. 07-2042

Appellate Information

Argued: October 31, 2008

Decided: December 8, 2009

Judges

Opinion by Judge Miner

Counsel

For Petitioner:

Michael A. Ugolini, Springfield, MA

For Respondent:

Susan Choi-Hausman, Michael A. Cardozo, Pamela Seider Doglow and Martha Calhoun, Corporation Counsel of the City of New York, New York, NY

Electronic Trading Grp., LLC v. Banc of Am. Secs. LLC, No. 08-0420

In an antitrust action by a short seller against "prime brokers" in short sale transactions alleging that the prime brokers arbitrarily designated certain securities as "hard to borrow" and then fixed the price for borrowing them, dismissal of the complaint is affirmed where federal securities law implicitly precluded application of the antitrust law to the alleged anticompetitive conduct.

Read Electronic Trading Grp., LLC v. Banc of Am. Secs. LLC, No. 08-0420

Judges

Opinion by Judge Jacobs

Counsel

For Appellant:

Andrew J. Entwistle, Vincent R. Cappucci and Harold F. McGuire, Entwistle & Cappucci LLP, New York, NY

For Appellees:

Robert F. Wise, Jr. and William J. Fenrich, Davis Polk & Wardwell LLP, New York, NY

Starbucks Corp. v. Wolfe's Borough Coffee, Inc., No. 08-3331

In a trademark infringement action by Starbucks Corp. regarding a competitor's use of the name "Charbucks," judgment for defendant is affirmed in part where: 1) the district court did not clearly err in finding that the Charbucks Marks were minimally similar to the Starbucks Marks; 2) the Charbucks line of coffee was marketed as a product of very high quality -- as Starbucks also purported its coffee to be -- which was inconsistent with the concept of tarnishment. However, the judgment is vacated in part where the district court needed to conduct further proceedings on the issue of whether Starbucks demonstrated a likelihood of dilution by "blurring" under federal trademark law.

Read Starbucks Corp. v. Wolfe's Borough Coffee, Inc., No. 08-3331

Appellate Information

Argued: June 22, 2009

Decided: December 3, 2009

Judges

Opinion by Judge Miner

Counsel

For Appellant:

Mark N. Mutterperl, John C. Rawls and Sarah Silbert, Fulbright & Jaworski L.L.P., New York,
NY

For Appellee:

Christopher Cole and John-Mark Turner, Sheehan, Phinney, Bass + Green, P.A., Manchester, NH

Ljutica v. Holder, No. 07-5638

In an action challenging the Attorney General's denial of citizenship to plaintiff, summary judgment for defendants is affirmed where plaintiff's conviction under 18 U.S.C. section 1344 for attempting to execute a fraudulent scheme to obtain money from a bank constituted an "aggravated felony" as defined in 8 U.S.C. section 1101(a)(43)(M)(i) and that conviction for an aggravated felony made one ineligible for naturalization under 8 U.S.C. section 1101(f)(8).

Read Ljutica v. Holder, No. 07-5638

Appellate Information

Argued: April 16, 2009

Decided: December 3, 2009

Judges

Opinion by Judge Leval

Counsel

For Appellant:

Walter Drobenko, Drobenko & Associates, P.C., Astoria, NY

For Appellees:

Patricia L. Buchanan and Sarah S. Normand, Assistant United States Attorneys, New York, NY

US v. Labbe, No. 08-0673

Defendant's sentence for interstate transportation of stolen property is vacated where the district court failed to make findings in support of its denial of a minimal role adjustment.

Read US v. Labbe, No. 08-0673

Appellate Information

Heard: October 16, 2009

Decided: December 4, 2009

Judges

Opinion by Judge Newman

Counsel

For Appellant:

Devin McLaughlin, Langrock Sperry & Wool, LLP, Middlebury, VT

For Appellee:

Seetha Ramachandran, Lev L. Dassin and Iris Lan, Asst. U.S. Attys., New York, NY

Duch v. Jakubek, No. 07-3503

In a sex discrimination action claiming that defendant-supervisor should have prevented the harassment of plaintiff taking place, summary judgment for defendants is affirmed in part where 1) plaintiff was not deprived of all reasonable avenues of complaint and 2) defendants could not be liable based on information that plaintiff requested be kept confidential but which was conveyed to a co-worker.  However, the order is reversed in part where a reasonable jury could conclude that the employer defendants 1) knew, or in the exercise of reasonable care should have known, of the harassment directed at plaintiff and 2) failed to take appropriate remedial action.

Read Duch v. Jakubek, No. 07-3503

Appellate Information

Argued: December 9, 2008

Decided: December 4, 2009

Judges

Opinion by Judge Cabranes

Counsel

For Appellant:

Mathew Paulose, Jr., Koehler & Isaacs LLP, New York, NY

For Appellees:

Patrick J. Walsh, Barbara D. Underwood, Peter Karanjia, Office of the Attorney General for the State of New York, New York, NY

Ge v. Holder, No. 07-3630

Petition for review of the BIA's order denying petitioner's asylum application is granted where: 1) the BIA committed legal error by effectively holding that petitioner's only cognizable activity was the act of his enrollment in the China Democratic Party (CDP), an act which petitioner contends was committed clandestinely, and took no notice of his later activities as a member of the CDP; and 2) remand was proper to reopen the record to permit petitioner to present additional evidence as to the Chinese government's likely future awareness of his involvement with the CDP.

Read Ge v. Holder, No. 07-3630

Appellate Information

Argued: May 27, 2009

Decided: December 2, 2009

Judges

Opinion by Judge Pooler

Counsel

For Petitioner:

David K.S. Kim, Matthew L. Guadagno, Kerry W. Bretz, and Jules E. Coven, New York, NY

For Respondent:

Annete M. Wietecha, Anh-Thu P. Mai, and Jeffrey S. Bucholtz, U.S. Department of Justice,
Washington, DC

US v. Garcia, No. 08-1621

Defendant's money laundering conspiracy sentence is vacated where the record lacked a sufficient factual basis to conclude that defendant participated in the alleged conspiracy with the requisite knowledge of the concealment element of the crime charged.

Read US v. Garcia, No. 08-1621

Appellate Information

Argued: September 30, 2009

Decided: December 1, 2009

Judges

Opinion by Judge Lynch

Counsel

For Appellant:

Jonathan I. Edelstein, New York, NY

For Appellee:

Brent S. Wible, Brendan R. McGuire and Andrew L. Fish, Assistant United States Attorneys, New York, NY