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

November 2010 Archives

US v. Turk, No. 09-5091

Mail and Wire Fraud Sentence Affirmed

In US v. Turk, No. 09-5091, the court affirmed defendant's sentence for conspiracy to commit mail and wire fraud where the district court properly calculated the loss caused by the defendant's fraud and imposed a reasonable sentence.

 

US v. Fuller, No. 09-1437

Sex Offender Registration and Notification Act Conviction Affirmed

In US v. Fuller, No. 09-1437, the court affirmed defendant's conviction under the Sex Offender Registration and Notification Act (SORNA), holding that 1) SORNA applied upon enactment to sex offenders whose predicate sex offense convictions predate SORNA; and 2) violation of SORNA's criminal enforcement provision was a general intent crime.

 

US v. Kalish, No. 08-3374

Asset Forfeiture Order

In US v. Kalish, No. 08-3374, defendant's appeal from a final order of asset forfeiture in a mail and wire fraud prosecution, the court affirmed the order where 1) a money judgment was properly entered for the amount of the forfeiture; 2) both the forfeiture and the restitution remedies were properly imposed, and 3) while there may arise a subsequent claim to have the forfeiture amount reduced by any amounts of restitution actually paid, any such reduction was not available at this time.

  • US v. Douglas, No. 09-4955

    Child Pornography Conviction Affirmed

    In US v. Douglas, No. 09-4955, the court affirmed defendant's convictions for enticing a minor to engage in illegal sexual activity and knowingly transporting an image of child pornography in interstate commerce, holding that the district court did not err in concluding that a defendant may commit criminal enticement pursuant to 18 U.S.C. section 2422(b) by communicating with an adult guardian of a minor.

     

    IMS Health Inc. v. Sorrell, No. 09-1913

    First Amendment to Prescriber-Identifiable Data Sale Ban

    In IMS Health Inc. v. Sorrell, No. 09-1913, a First Amendment challenge to a Vermont statute banning the sale, transmission, or use of prescriber-identifiable data (PI data) for marketing or promoting a prescription drug unless the prescriber consents, the court reversed judgment for defendants where, because the statute was a commercial speech restriction that did not directly advance the substantial state interests asserted by Vermont, and was not narrowly tailored to serve those interests, the statute could not survive intermediate scrutiny under Central Hudson.

     

    Cenzon-DeCarlo v. Mt. Sinai Hosp., No. 10-0556

    No Private Right of Action Under 42 U.S.C. section 300a-7(c)

    In Cenzon-DeCarlo v. Mt. Sinai Hosp., No. 10-0556, an action claiming that plaintiff nurse was compelled by her supervisors to participate in a late-term abortion, suffering serious emotional harm as a result, the court affirmed summary judgment for defendant where there was no evidence that Congress intended to create a right of action under 42 U.S.C. section 300a-7(c).

    Cenzon-DeCarlo v. Mt. Sinai Hosp., No. 10-0556

    No Private Right of Action Under 42 U.S.C. section 300a-7(c)

    In Cenzon-DeCarlo v. Mt. Sinai Hosp., No. 10-0556, an action claiming that plaintiff nurse was compelled by her supervisors to participate in a late-term abortion, suffering serious emotional harm as a result, the court affirmed summary judgment for defendant where there was no evidence that Congress intended to create a right of action under 42 U.S.C. section 300a-7(c).

    US v. Miller, No. 08-1152

    Parental Kidnapping Conviction Affirmed

    In US v. Miller, No. 08-1152, the court affirmed defendant's conviction for international parental kidnapping, holding that 1) defendant's argument ignored the basic principle that any "lawful parental rights" created by a state family court order came into existence when the order was issued; 2) defendant failed to establish prejudice because neither her family court appeal nor its ultimate outcome were relevant to the existence of the other parent's rights during the period of the indictment while the Vermont order was still in effect and defendant was accordingly bound by it; and 3) the government provided sufficient evidence with respect to defendant's intent.

     

    Denial of Motion to Compel Arbitration Affirmed

    In Louisiana Stadium & Exposition Dist. v. Merrill Lynch, Pierce, Fenner & Smith Inc., No. 10-889, plaintiffs' appeal from the denial of their motion to compel arbitration, the court affirmed where, assuming for the sake of argument that plaintiffs possessed a right to arbitration, plaintiffs waived that right by expressing the intent to resolve the dispute through litigation.


    FOIA Request to Department of Homeland Security

    In Allard K. Lowenstein Int'l. Human Rights Project v. Dept. of Homeland Sec., No. 09-2225, an action seeking through the Freedom of Information Act (FOIA) to obtain internal government documents that plaintiff believed might reveal governmental misconduct in its terrorism investigations, the court affirmed partial summary judgment for defendants where the Department of Homeland Security properly withheld certain portions of a 2004 memorandum under Exemption (b)(7)(E) of the Freedom of Information Act.


    Kirschner v. KPMG LLP, No. 09-2020

    Litigation Trustee Lacked Standing to Sue Persons Who Allegedly Defrauded Bankrupt Company

    In Kirschner v. KPMG LLP, No. 09-2020, a case involving the standing of the trustee of a bankrupt corporation's litigation trust to sue third parties who allegedly assisted corporate insiders in defrauding the corporation's creditors, the court affirmed the dismissal of the suit where the trustee lacked standing because the insiders' misconduct was imputed to the corporation.


    Local Union 36 v. NLRB, No. 10-3448

    Denial of Motion to Transfer

    In Local Union 36 v. NLRB, No. 10-3448, the court denied a motion by respondent National Labor Relations Board to transfer the case to the District of Columbia Circuit where, if a party files a petition for review in the Second Circuit and then serves the agency with the petition accompanied by the email, bearing the date and time of filing, by which the petition was filed, the party has satisfied the requirements of 28 U.S.C. section 2112(a)(2).

     

    US v. Hudson, No. 09-3600

    Debtor's Appeal From Reversal of Attorney's Fee Award

    In US v. Hudson, No. 09-3600, debtor's appeal from the district court's reversal of an award of attorney's fees in favor of the debtor after he successfully challenged a claim lodged against him in bankruptcy court by the IRS, the court affirmed where lawyers appearing pro se who prevail in administrative or court proceedings against the U.S. are ineligible for attorneys' fees under IRC section 7430.

    Lewis v. Holder, No. 09-2511

    Grant of Petition for Review of Denial of Cancellation of Removal

    In Lewis v. Holder, No. 09-2511, a petition for review of an order of the BIA dismissing petitioner's appeal of the denial of her application for cancellation of removal, the court granted the petition where the BIA's "reissuance" of a decision triggered a new thirty-day period to obtain judicial review.


    US v. Davis, No. 09-3626

    Sexual Exploitation Conviction Affirmed

    In US v. Davis, No. 09-3626, the court affirmed defendant's conviction for sexual exploitation of a minor is affirmed where the knowledge of interstate transmission of a visual depiction of a minor, induced to engage in explicit sexual conduct, under 18 U.S.C. section 2251(a), need not be contemporaneous with the production of the visual depiction.

     

    Wilson v. Northwestern Mut. Ins. Co., No. 09-1895

    Life Insurance Benefit Dispute

    In Wilson v. Northwestern Mut. Ins. Co., No. 09-1895, an action claiming that plaintiff was the beneficiary of two life insurance policies issued by defendant to her late husband, the court affirmed summary judgment for defendant-insurer in part, where there were no modifications, oral or otherwise, of the written terms of the Term Life Policy.  However, the court reversed in part where a reasonable jury could find that the retroactive refund by defendant was a self-serving afterthought, designed to reduce the length of the decedent's policy coverage.

     

    Moltner v. Starbucks Coffee Co., No. 09-4943

    Denial of Motion to Remand Affirmed

    In Moltner v. Starbucks Coffee Co., No. 09-4943, a tort action arising from injuries allegedly sustained when plaintiff spilled tea on herself at Starbucks, the court affirmed the denial of plaintiff's motion to remand where the time for removal ran from the service of the first paper stating on its face the amount of damages sought.