December 2010 Archives

Illegal Reentry Sentence Vacated

In US v. Ibarra-Luna, No. 09-40768, the court vacated defendant's illegal reentry sentence where, under the discretionary sentencing regime of Booker and its progeny, the harmless error doctrine applied only if the proponent of the sentence convincingly demonstrated both: 1) that the district court would have imposed the same sentence had it not made the error, and 2) that it would have done so for the same reasons it gave at the prior sentencing, and defendant's sentence did not meet this standard.

Action Seeking Indemnification From Insurer

In 10 Ellicott Square Court Corp. v. Mountain Valley Indemn. Co., No. 10-0799, an action seeking defense and indemnification from defendant insurance company based on an underlying personal injury lawsuit, the Second Circuit certifies the following question to the New York Court of Appeals:  In a case brought against an insurer in which a plaintiff seeks a declaration that it is covered under an insurance policy issued by that insurer, does a certificate of insurance issued by an agent of the insurer that states that the policy is in force but also bears language that the certificate is not evidence of coverage, is for informational purposes only, or other similar disclaimers, estop the insurer from denying coverage under the policy?

Crack Distribution Sentence Vacated

In US v. Preaceley, No. 09-2580, the court vacated defendant's sentence for distributing and possessing with intent to distribute 50 grams or more of a substance containing cocaine base so that the district court could perform an individualized consideration of factors relevant to an assessment of whether Category VI under the Sentencing Guidelines significantly over-represented the seriousness of defendant's criminal history or the likelihood that he would commit further crimes.

ERISA Action Regarding Withdrawal Liability

In Retirement Plan of the UNITE HERE Nat'l. Ret. Fund v. Kombassan Holding A.S., No. 07-4143, an ERISA action claiming that defendant was responsible for the withdrawal liability incurred by a third party pursuant to sections 502(a)(3) and 4301(a) of ERISA, the court affirmed judgment for plaintiff where, in the circumstances presented here, defendant was an alter ego of the third party and was, therefore, responsible for its withdrawal liability.

Murder in Aid of Racketeering Conviction Affirmed

In US v. Arevalo, No. 09-0576, defendant's appeal from his convictions for conspiracy to commit murder in aid of racketeering, and of using a firearm during a crime of violence, defendant's claim of Federal Rule of Criminal Procedure 32 error and his claim based on the absence of a Spanish interpreter during a portion of his sentencing proceeding were foreclosed by his appeal waiver.

Dismissal of Appeal for Lack of Jurisdiction

In Houbigant, Inc. v. IMG Fragrance Brands, LLC, No. 10-361, plaintiff's appeal from the dismissal of a complaint in one of two related cases, the court dismissed the appeal where the district court's order was a nonfinal judgment that is not independently appealable, because, although the district court directed the Clerk of the Court to "close" the dismissed case, the district court also instructed that the dismissal was not to affect, inter alia, pending motions in the case with which the dismissed action was consolidated.

Conviction for Communicating National Defense Information Affirmed

In US v. Abu-Jihaad, No. 09-1375, the court affirmed defendant's conviction for communicating national defense information respecting the movements of a United States Navy battlegroup to unauthorized persons, holding that 1) there were no constitutional defects in Foreign Intelligence Surveillance Act's (FISA) certification requirement of "a significant" rather than a primary "purpose...to obtain foreign intelligence information"; 2) no denial of due process in the district court's decision not to order disclosure of FISA materials to the defendant, or to conduct a preliminary hearing to rule on defendant's challenge to FISA's implementation in this case; and 3) the record convincingly satisfied FISA's purpose and probable cause requirements.

Action Alleging Retaliatory Termination

In Thomas v. iStar Fin., Inc., No. 07-5327, an action claiming that plaintiff's termination was in retaliation for complaints he had made about his supervisor's alleged misconduct, the court affirmed partial judgment for plaintiff where 1) plaintiff had no mechanism by which to challenge the district court's constitutional analysis related to punitive damages; 2) no reasonable jury could have found the "occasional and isolated" events plaintiff complained of were severe or pervasive enough to create an abusive work environment; and 3) defendants could not point to anywhere in the record where they objected to the district court submitting the issue of back-pay damages to the jury.

Action Based on Alleged Termination Because Plaintiff Was Muslim

In Sayed v. Hilton Hotels Corp., No. 10-453, an action claiming that defendant terminated plaintiff's employment because plaintiff was Muslim, the court affirmed summary judgment for defendant where plaintiff produced no evidence other than temporal proximity in support of his charge that the proffered reason for his discharge was pretextual.

Petition for Review of Order of Removal Denied

In Varughese v. Holder, No. 10-0467, a petition for review of a final order of removal issued by the BIA, the court denied the petition where 1) Immigration and Nationality Act section 101(a)(43)(D), which defined an "aggravated felony" as a money laundering offense in which "the amount of the funds exceeded $10,000," 8 U.S.C. section 1101(a)(43)(D), captured only those violations of criminal statutes that use the specific word "funds"; and 2) because petitioner's money laundering conviction rendered him ineligible for admissibility to the U.S., he was similarly ineligible for adjustment of status.

Felon In Possession Sentence Affirmed

In US v. Thomas, No. 09-4335, the court affirmed defendant's sentence for being a felon in possession of a firearm, where 1) the lack of a scienter requirement in the stolen firearm enhancement is permissible; and 2) a rational basis existed to support the Guidelines' differential treatment of stolen explosives and stolen firearms such that U.S.S.G. section 2K2.1(b)(4)(A) did not violate equal protection.

Motion to Withdraw Granted

In US v. Diaz, No. 10-317, proceedings involving a motion for permission to withdraw pursuant to Anders v. California, 386 U.S. 738 (1967), on the ground that defendant was not entitled to the benefit of the Fair Sentencing Act of 2010, the court granted the motion where defendant was sentenced before the effective date of the Act, and the Act was not retroactive.

Hobbs Act Conviction Affirmed

In US v. Markle, No. 06-1600, the court affirmed defendant's Hobbs Act extortion conviction, holding that the district court did not err in denying a defense under United States v. Enmons, 410 U.S. 396 (1973), because such defense is limited to labor-management disputes and does not extend to inter-union violence.

Excess Insurance Coverage Dispute

In Lumbermens Mut. Cas. Co. v. RGIS Inventory Specialists, LLC, No. 09-0753, an action seeking a declaratory judgment to the effect that defendants were not entitled to coverage under an excess insurance policy for an underlying personal injury judgment because of defendants' untimely notice, the court affirmed summary judgment for defendants where, under the specific circumstances of this case, defendants provided timely notice within the meaning of the excess liability insurance policy's notice provision.

RICO Action Dismissal Affirmed

In Norex Petro. Ltd. v. Access Indus., Inc., No. 07-4553,  a RICO action alleging various injuries to plaintiff arising from the activities of defendants' alleged international criminal enterprise, the court affirmed the dismissal of the complaint where 1) the question of the justiciability of the RICO claims is properly one of whether the complaint adequately states a claim for relief; and 2) because the RICO statute lacked a clear statement of extraterritorial reach, plaintiff's claims are barred.

Trafficking Victims Protection Act Conviction Partially Affirmed

In US v. Marcus, No. 07-4005, the court affirmed defendant's forced labor conviction under the Trafficking Victims Protection Act (TVPA), holding that defendant offered no explanation for how his pre-enactment conduct differed from his post-enactment conduct in a manner that would lead the court to conclude that there was a reasonable probability that the jury would not have convicted defendant absent the district court's due process error.  However, the court vacated defendant's conviction for sex trafficking under the TVPA where there was a reasonable probability that the erroneous jury charge affected the outcome of the trial and affected the fairness, integrity or public reputation of the proceedings.

Firearm Possession Sentence Affirmed

In US v. Bouknight, No. 09-4085, the court affirmed defendant's sentence for possessing a firearm after having been convicted of a felony, holding that the district court properly considered defendant's conditional discharge to be a criminal justice sentence under U.S.S.G. section 4A1.1.

Petition for Review of Denial of Motion to Reopen Removal Proceedings Dismissed

In Duarte-Ceri v. Holder, No. 08-6128, a petition for review of the BIA's denial of petitioner's motion to reopen removal proceedings, the court held the petition in abeyance and transferred the matter to the district court where petitioner was still "under the age of eighteen years" when his mother was naturalized, but there had been no factual finding as to the actual timing of petitioner's birth, and thus a new hearing on the nationality claim was required.

Denial of Cancellation of Removal Affirmed

In Rosario v. Holder, No. 09-3877, a petition for review of the BIA's denial of petitioner's application for cancellation of removal as an abused spouse under the amended Immigration and Naturalization Act, the court dismissed the petition where the BIA's decision raised no constitutional claims or questions of law.

Cocaine Conspiracy Conviction Affirmed

In US v. Andino, No. 09-4694, the court affirmed defendant's conviction for conspiring to distribute or possess with intent to distribute cocaine, holding that the government was required to show only that defendant knowingly participated in a conspiracy involving a controlled substance.

Title VII Discrimination Action

In Estate of Paulette Hamilton v. City of N.Y., No. 09-4318, a Title VII employment discrimination action, the court affirmed summary judgment for defendant in part where 1) plaintiff could not introduce evidence of subsequent remedial measures taken by defendant in order to establish defendant's underlying liability; 2) the decision to consider EEOC findings was left to the "sound discretion" of the district court; and 3) plaintiffs pointed to no evidence indicating that the relevant performance evaluations were biased or manifestly inaccurate.  However, the court vacated in part where plaintiffs deserved an opportunity to present their Labor Law claim to the district court as it inevitably considered whether it would be appropriate to construe defendants' motion for summary judgment as a motion to amend their answer.

Mail Theft Suppression Order Affirmed

In US v. Capers, No. 07-1830, a prosecution for mail theft, the court affirmed the district court's order suppressing inculpatory statements made by defendant while in custody, holding that the initial interrogation conducted by an investigator aware of the obvious need for a Miranda warning, followed 90 minutes later by a second, post-Miranda interrogation by the same investigator, on the same subject matter, under similar circumstances and with no explicit curative language amounted to a deliberate, two-step interrogation technique designed to undermine the defendant's Miranda rights.

Religious Land Use and Institutionalized Persons Act Action

In Third Church of Christ, Scientist, of N.Y. v. City of N.Y., No. 08-6022, an action seeking a permanent injunction prohibiting New York City from restricting a church's use of its facility for private, catered events pursuant to the equal-terms provision of the Religious Land Use and Institutionalized Persons Act, the court affirmed an injunction in favor of plaintiff, holding that the formal differences the City asserted could not protect its course of conduct and the institutions at issue were similarly situated for all functional intents and purposes relevant here.

FLSA Attorney's Fees Case

In Scott v. City of N.Y., No. 09-5232, an appeal from the district court's order awarding plaintiff's counsel attorney's fees pursuant to section 216(b) of the Fair Labor Standards Act, the court vacated the order where, because the district court did not explain the basis on which counsel was excepted from the requirement that attorneys submit contemporaneous time records with their fee applications, the court was unable to divine whether the district court abused its discretion in granting such an exception.