U.S. Second Circuit: July 2010 Archives
U.S. Second Circuit - The FindLaw 2nd Circuit Court of Appeals Opinion Summaries Blog

July 2010 Archives

Gerena v. Korb, No. 09-2594, involved an action arising from an alleged dorm room sexual and physical assault, wherein plaintiffs' appealed from a dismissal of their action under Federal Rule of Civil Procedure 4(m) for failure to timely serve defendants.  The court of appeals affirmed in part on the ground that the district court was within the bounds of its discretion in determining that plaintiffs had neither sought nor received an extension of time to serve defendant university.  However, the court reversed in part on the ground that it was an abuse of discretion to find that plaintiffs' time to serve an individual defendant had not been extended by a previous district judge prior to transfer.

US v. Amanuel, No. 06-1103, concerned a prosecution for conspiracy to distribute cocaine.  The district court vacated the grant of defendants' motion to suppress certain intercepted electronic communications, on the ground that  the failure properly to record and seal the electronic interceptions was not a constitutional violation that merits suppression under 18 U.S.C. section 2518(10)(c).

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Child Pornography Sentence Vacated

In US v. DeSilva, No. 09-2988, the court of appeals vacated defendant's child pornography sentence, on the ground that the district court committed procedural error by engaging in clearly erroneous fact-finding at defendant's sentencing when it relied upon a psychologist's report -- which was prepared for use at a pretrial bail hearing -- to find that defendant, an admitted child molester, posed no danger to the community.

As the court wrote:  "We are called upon here to determine whether the United States District Court for the Western District of New York committed procedural error by engaging in clearly erroneous factfinding at defendant's sentencing when it relied upon a psychologist's report--which was prepared for use at a pretrial bail hearing--to find that defendant, an admitted child molester, posed no danger to the community. We hold that the District Court did commit such procedural error and therefore remand for resentencing."

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Zalaski v. City of Bridgeport Police Dep't., No. 08-3671, a civil rights action based on the allegedly unlawful breakup of an animal rights demonstration, summary judgment for defendants is vacated where the district court needed to undertake a comprehensive public forum analysis so the drastic device of summary judgment was not precipitously imposed.

Metro. Taxicab Bd. of Trade v. City of N.Y., No. 09-2901, involved an appeal by the Taxicab & Limousine Commission of New York City and several New York City officials from the grant of a preliminary injunction that enjoined the enforcement of the City's revisions to the maximum lease rates for taxicabs that effectively shifted fuel costs from drivers of fleet taxis to fleet owners to incentivize the use of hybrid-engine and fuel-efficient vehicles.  The court of appeals affirmed on the ground that the City's new rules, based expressly on the fuel economy of a leased vehicle, plainly fall within the scope of the Energy Policy and Conservation Act preemption provision.

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Action To Enforce German Bearer Bonds

Mortimer Off Shore Servs., Ltd. v. Fed. Repub. of Germany, No. 08-1783, involved an action to enforce bearer bonds valued at $400,000,000 against the Federal Republic of Germany.  The court of appeals affirmed the dismissal of the action on the grounds that 1) plaintiff could not seek to enforce certain bonds without first complying with the statutory validation procedures aimed to ensure that the bonds represented valid, legal obligations; and 2) plaintiff failed to allege an action based upon a commercial activity that, if proven, would give rise to jurisdiction over a foreign sovereign.

As the court wrote:  "Plaintiff-Appellant-Cross-Appellee Mortimer Off Shore Services, Ltd. appeals from the judgment of the United States District Court for the Southern District of New York (Lynch, Judge) dismissing Mortimer's action to enforce bearer bonds valued at $400,000,000 against Defendant-Appellee-Cross-Appellant the Federal Republic of Germany ("FRG") for failure to state a claim. Mortimer also appeals from the denial of its subsequent motions to amend the judgment and for leave to file an amended complaint. The FRG cross-appeals from the denial of its motion to dismiss for lack of subject matter jurisdiction pursuant to the Foreign Sovereign Immunities Act, 28 U.S.C. § 1602 et seq."

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Racketeering Conviction Affirmed, and Civil Rights Matter

In US v. Caracappa, No. 09-1177, the Second Circuit affimed defendants' racketeering and drug conspiracy convictions on the grounds that 1) there was no error in the district court's determination that defendants had suggested that a witness had fabricated his testimony in order to get out of prison; 2) a witness's alleged improper vouching for another government witness was an isolated incident that did not amount to plain error; and 3) the government's cross-examination of a defense witness was within the scope of direct examination.

Manganiello v. City of N.Y., No. 09-0462, involved an action against a police detective for malicious prosecution.  The court of appeals affirmed judgment for plaintiff on the grounds that 1) there was ample evidence to support plaintiff's claim that defendant lacked probable cause; 2) the jury could reasonably infer that defendant refrained from making an inquiry into other possible suspects; and 3) the evidence was sufficient to show that defendant proceeded against plaintiff with malice.

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Denial of Reduction in Sentence Affirmed

US v. Mock, No. 09-4154, involved defendant's appeal from the district court's denial of defendant's motion for a reduction in sentence pursuant to 18 U.S.C. section 3582(c)(2).  The court of appeals affirmed on the grounds that 1) neither the district court nor the court of appeals was free to address, in a proceeding pursuant to 18 U.S.C. section 3582(c)(2), defendant's arguments regarding procedural errors at his original, now-final sentencing; and 2) at least for purposes of a motion for a reduced sentence, the record disclosed that defendant was sentenced as a career offender under U.S.S.G. section 4B1.1.

As the court wrote:  "Defendant-Appellant John Mock III appeals from the district court's denial of his motion for a reduction in sentence pursuant to 18 U.S.C. § 3582(c)(2), which he filed based on the amendments to the U.S. Sentencing Guidelines relating to the base offense levels for crack-related offenses, see U.S.S.G., Supp. to App. C., Amend. 706 (effective Nov. 1, 2007); see also id. Amend. 713 (effective Mar. 3, 2008) (collectively, the "crack cocaine amendments"). The district court reasoned that, because Mock was originally sentenced as a career offender, see U.S.S.G. § 4B1.1, he was ineligible for a sentence reduction based on the crack cocaine amendments."

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Royal & Sun Alliance Ins., PLC v. Ocean World Lines, Inc., No. 08-4324, involved an action based on damage to a printing press shipped pursuant to a bill of lading.  The court of appeals affirmed partial summary judgment for defendant on the ground that the Supreme Court previously held that the Carmack Amendment "does not apply to a shipment originating overseas under a single through bill of lading," in Kawasaki Kisen Kaisha Ltd. v. Regal-Beloit Corp., ___ S.Ct. ___ (2010).

S.K.I. Beer Corp. v. Baltika Brewery, No. 06-3501, concerned plaintiff's appeal from the district court's order granting defendant's motion to dismiss the complaint based upon a forum selection clause in the parties' written agreement.  The court of appeals affirmed on the ground that plaintiff failed to make a clear showing that enforcement of the parties' contractual forum selection clause was unreasonable, unjust, or invalid.

US v. Pickett, No. 09-0683, involved defendant's appeal from the district court's imposition of restitution more than ninety days after defendant's sentencing hearing, based on his conviction for access device fraud.  The court of appeals affirmed on the ground that the district court had the authority to order restitution pursuant to Dolan v. United States, ___ S. Ct. ___ (Jun. 14, 2010).

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Child Pornography Sentence Vacated

In US v. Tutty, No. 09-2705, the Second Circuit vacated defendant's child pornography sentence on the ground that the district court erred when it held, relying on outdated law, that it did not have the authority to impose a non-Guideline sentence based on policy considerations applicable to all defendants.

As the court wrote:  "Defendant-appellant Jason E. Tutty pleaded guilty to one count of receiving child pornography in violation of 18 U.S.C. § 2252A(a)(2)(A). He was sentenced by the United States District Court for the Western District of New York (Siragusa, J.) to 168 months' imprisonment. On appeal, Tutty challenges the substantive reasonableness of his sentence. Upon review of the record, we conclude that the district court erred when it held, relying on outdated law, that it did not have the authority to impose a non-Guideline sentence based on policy considerations applicable to all defendants. Moreover, as we recently recognized in United States v. Dorvee, 604 F.3d 84 (2d Cir.2010), the child pornography Guidelines present important policy considerations, and unless they are "carefully applied," they "can easily generate unreasonable results." Id. at 98. We vacate the judgment and remand to the district court for resentencing to correct the procedural error and to consider the policy concerns addressed in Dorvee."

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Reversal of Grant of Habeas Petition in Assault Prosecution

In Gueits v. Kirkpatrick, No. 09-2335, an assault prosecution, the court of appeals reversed the grant of petitioner's habeas petition, holding that petitioner failed to demonstrate that the New York Supreme Court, Appellate Division, was unreasonable in its application of the ineffective assistance of counsel standard set forth in Strickland v. Washington, 466 U.S. 668 (1984).

As the court wrote:  "Respondent Robert Kirkpatrick, Superintendent of New York State's Wende Correctional Facility, appeals from the judgment of the United States District Court for the Eastern District of New York (Brian M. Cogan, Judge) granting Johnny Gueits's petition for a writ of habeas corpus. Exercising de novo review, we hold that Gueits has failed to demonstrate that the New York Supreme Court, Appellate Division, was unreasonable in its application of the ineffective assistance of counsel standard set forth in Strickland v. Washington, 466 U.S. 668, 687 (1984). Accordingly, we REVERSE the district court's judgment and REMAND with instructions to dismiss the petition."

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Green Pty. of Conn. v. Garfield, No. 09-0599, involved a First Amendment challenge to Connecticut's Campaign Finance Reform Act (CFRA).  The court of appeals affirmed summary judgment for defendants in part, holding that the CFRA comported with the First Amendment insofar as it bans contributions by state contractors, "prospective" state contractors, the "principals" of contractors and prospective state contractors, and the spouses and dependent children of those individuals.  However, the court reversed in part on the ground that the CFRA violated the First Amendment insofar as it banned contributions by lobbyists and their families and insofar as it prohibits contractors, lobbyists, and their families from soliciting contributions on behalf of candidates.

State of Conn. v. Duncan, No. 08-2437, concerned an action against the Secretary of Education, alleging that 1) the Secretary's interpretation of the so-called "Unfunded Mandates Provision" of the No Child Left Behind Act ("NCLBA") violated the State's statutory and constitutional rights by requiring the State to expend its own funds to comply with the Act, and 2) the Secretary violated the Administrative Procedure Act ("APA") by denying the State's request for waivers from the NCLBA's requirements; rejecting the State's proposed amendments to its NCLBA accountability plan; and failing to provide the State a hearing on its proposed plan amendments.  The court of appeals affirmed judgment for defendant, on the ground that that State's Unfunded Mandates Provision arguments were not yet ripe for judicial review.

Fox Tel. Stations, Inc. v. FCC, No. 06-1760, involved a petition for review of the indecency policy of the Federal Communications Commission (FCC).  The Second Circuit granted the petition on the ground that the FCC's policy violated the First Amendment because it was unconstitutionally vague, creating a chilling effect that goes far beyond the fleeting expletives at issue.

Green Pty. of Conn. v. Garfield, No. 09-3760, concerned an action claiming that Connecticut's Citizen Election Program (CEP), a statutory scheme providing public funds for candidates running for state office, violated the First and Fourteenth Amendments.  The court of appeals affirmed judgment for plaintiffs in part on the ground that the CEP's so-called "trigger provisions" violated the First Amendment in a manner similar to the law struck down in Davis v. Federal Election Commission, 128 S. Ct. 2759 (2008).  However, the court reversed in part on the ground that the CEP did not unconstitutionally discriminate against minor-party candidates.

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Arbitration Clause Held Unconscionable

Fensterstock v. Educ. Fin. Ptnrs., No. 09-1562, involved defendant's appeal from the district court's denial of its motion to compel arbitration.  The court of appeals affirmed on the ground that the arbitration clause of the promissory note at issue was unconscionable under California law because of its class action waiver provision.

As the court wrote:  "Plaintiff Joshua G. Fensterstock commenced this action asserting state-law claims on behalf of himself and others similarly situated, alleging that defendants Education Finance Partners ("EFP") and Affiliated Computer Services, Inc. ("ACS"), have engaged in frauudlent and deceptive practices in connection with the solicitation, consolidation, and servicing of student loans."

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District Lodge 26 v. United Techs. Corp., No. 10-0702, involved an action claiming that defendant's announced plans to close two facilities in Connecticut and move the work performed at those facilities outside the State violated the collective bargaining agreement between the company and the plaintiff union.  The court of appeals affirmed a permanent injunction in favor of plaintiffs, on the grounds that 1) the district court did not err in finding that defendant's actions did not constitute "every reasonable effort" to preserve work within the bargaining unit; and 2) the district court did not err in finding that the Closure Plan violated defendant's implied covenant of good faith and fair dealing.

Natural Resources Def. Coun. v. US Dept. of Agric., No. 09-2021, concerned an action claiming that the Department of Agriculture failed to comply with the National Environmental Policy Act and the Plant Protection Act when it adopted new regulations for the importation of unmanufactured wood packaging material into the United States.  The court of appeals affirmed summary judgment for defendants, holding that defendants considered all reasonable alternatives to the proposed rule, and did not act arbitrarily or capriciously in adopting a rule providing for either heat treatment or fumigation with methyl bromide of the wood material prior to importation.

Ruston v. Town Bd., No. 09-4480, involved a "class of one" equal protection action by property owners, who were denied sewer hookups for their proposed subdivision, against the Village of Skaneateles, the Town Board, and the Town Planning Board (and individual members of the Boards).  The Second Circuit affirmed summary judgment for defendants, on the ground that plaintiffs failed to allege specific examples of the Town's proceedings, let alone applications that were made by persons similarly situated, and thus failed to make out an Equal Protection claim.

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In US v. Castello, No. 09-2784, the court of appeals vacated the district court's forfeiture order against defendant based on his conviction for failing to file Currency Transaction Reports in the course of running his check-cashing business, holding that the application of the four Bajakajian factors established that the forfeiture imposed in the district court's initial forfeiture order was not grossly disproportional to the crime for which defendant was convicted.

In US v. Woltmann, No. 10-413, a tax fraud prosecution, the court of appeals denied the government's motion to dismiss defendant's appeal, and vacated defendant's sentence, holding that the appeal waiver provision of defendant's plea agreement was unenforceable.

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Pharmaceutical Salespersons Not Outside Salespersons under FLSA

In re Novartis Wage & Hour Litig., No. 09-0437, involved an action by pharmaceutical company salespersons for overtime pay under the Fair Labor Standards Act (FLSA).  The court of appeals reversed summary judgment for defendant, on the ground that, under the Department of Labor's regulations, the salespersons were not outside salesmen or administrative employees for purposes of the FLSA.

As the court wrote:  "In these consolidated class actions, the plaintiffs, current or former pharmaceutical sales representatives employed by defendant Novartis Pharmaceuticals Corporation ("Novartis"), appeal from a judgment of the United States District Court for the Southern District of New York, Paul A. Crotty, Judge, denying their claims under the Fair Labor Standards Act of 1938 ("FLSA" or the "Act"), 29 U.S.C. section 201 et seq., and state law, for overtime pay with respect to time worked in excess of 40 hours per week."

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Costa v. Holder, No. 09-2380, concerned a petition for review of an order of the BIA affirming the decision of an Immigration Judge that denied petitioner's motion to terminate and ordered him removed as an alien who had been convicted of an aggravated felony pursuant to section 101(a)(43)(F) of the Immigration and Nationality Act.  The court of appeals denied the petition, on the ground that, under the court's decision in Chery v. Ashcroft, 347 F.3d 404, 408-09 (2d Cir. 2003), petitioner's conviction for violation of Connecticut General Statutes section 53a-71 constituted an aggravated felony pursuant to INA section 101(a)(43)(F).

As the court wrote:  "Petitioner seeks review of an order of the Board of Immigration Appeals ("BIA" or "Board") affirming the decision of an Immigration Judge that denied Petitioner's motion to terminate and ordered him removed as an alien who had been convicted of an aggravated felony pursuant to section 101(a)(43)(F) of the Immigration and Nationality Act ("INA"), 8 U.S.C. § 1101(a)(43)(F). Because under this Court's decision in Chery v. Ashcroft, 347 F.3d 404, 408-09 (2d Cir. 2003), Petitioner's conviction for violation of Connecticut General Statutes § 53a-71 constitutes an aggravated felony pursuant to INA § 101(a)(43)(F), 8 U.S.C. § 1101(a)(43)(F), we DENY the petition for review."

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College Std. Magazine v. Student Assn., No. 07-0891, involved a facial challenge under the First Amendment to a policy pursuant to which defendant university distributed funds to student groups.  The court of appeals dismissed defendants' appeal from summary judgment for plaintiffs on the ground that because the challenged policy was repealed and the plaintiffs stipulated to having summary judgment entered against them on their as-applied challenge, the case was moot.

In US v. Kaiser, No. 07-2365, the court of appeals vacated defendant's securities fraud conviction, holding that the district court erred in its instruction with respect to the conscious avoidance theory and in admitting the statement of defendant's corporation's general counsel.

Vivenzio v. City of Syracuse, No. 08-2436, concerned an action alleging racial discrimination by a city fire department.  The Second Circuit vacated summary judgment for defendants, holding that the record did not establish as a matter of law that the city's continued reliance on racial considerations in the hiring of firefighters was justified by a prior consent decree.

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