ACORN Federal Funding Matter, and Administrative, Criminal and Immigration Matters - U.S. Second Circuit
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ACORN Federal Funding Matter, and Administrative, Criminal and Immigration Matters

In US v. Bonilla, No. 09-1799, the court granted the government's motion for summary affirmance of defendant's conviction and sentence for reentering the U.S. after having been deported, holding that 1) the court has never required a district court to make specific responses to points argued by counsel in connection with sentencing; and 2) a prior felony conviction need not be pleaded, proved, or admitted to.

US v. Green, No. 08-5548, concerned defendant's appeal challenging a condition of his supervised release prohibiting him from associating with members of criminal street gangs or wearing the colors, tattoos or insignia related to such gangs.  The court vacated this condition on the ground that the portion of the condition prohibiting defendant from wearing gang colors or insignia was unconstitutionally vague.

ACORN v. US, No. 09-5172, involved an action challenging provisions in several federal appropriations laws barring the distribution of federal funds to ACORN and its affiliates, subsidiaries, and allied organizations.  The court affirmed in part a preliminary injunction in favor of plaintiffs, holding that, in light of the Office of Management and Budget's (OMB) actual and continuing responsibility to oversee the management of the budgets of Executive Branch agencies, and its consequent impact on the plaintiffs' reputation, plaintiffs showed sufficient injury to bring suit against the Director of the OMB.  However, the court vacated in part on the grounds that 1) plaintiffs failed to show that the appropriations laws constituted "punishment" under the functional test for a bill of attainder; and 2) the legislative record sufficient to demonstrate "punishment" cumulatively with the historical and functional tests of punishment.

Caro v. Weintraub, No. 09-3685, involved an action under Title III of the Omnibus Crime Control and Safe Streets Act based on the unauthorized recording of a conversation.  The court affirmed the dismissal of the complaint on the ground that the exception to the one-party consent provision of 18 U.S.C. section 2511(2)(d) requires that a communication be intercepted for the purpose of a tortious or criminal act that was independent of the intentional act of recording. 

CFTC v. Walsh, No. 09-3742, involved an action by the CFTC and SEC alleging securities fraud.  The Second Circuit certified the following question to the New York Court of Appeals: 1) does "marital property" within the meaning of New York Domestic Relations Law section 236 include the proceeds of fraud?; and 2) does a spouse pay "fair consideration" according to the terms of New York Debtor and Creditor Law section 272 when she relinquishes in good faith a claim to the proceeds of fraud?

Pucino v. Verizon Comms., Inc., No. 09-1306, concerned an action claiming that defendants maintained a hostile working environment at the garage where plaintiff was employed.  The court vacated summary judgment for defendant, on the grounds that 1) plaintiff offered sufficient evidence to allow a trier of fact to find that the alleged abuse was indeed sex-based; and 2) a rational juror could find that the gender-based conduct in question was "sufficiently severe or pervasive to alter the conditions of the victim's employment and create an abusive working environment."

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