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

March 2010 Archives

Criminal and Insurance Matters

Duane Reade, Inc. v. St. Paul Fire & Marine Ins. Co., No. 07-4141, concerned an action seeking insurance proceeds based on the destruction of a drug store in the September 11, 2001 attacks.  The Second Circuit affirmed the dismissal of the complaint on the grounds that 1) the district court's application of res judicata was proper because plaintiff could have raised in its prior action the claims it raised here, but it did not; and 2) because the store had not yet been "actually replaced," nor had the Recovery Period in the policy terminated following the actual replacement of the store, the Extended Recovery Period provision was inapplicable.

In US v. Burden, No. 03-1727, the court of appeals affirmed defendants' convictions under the Racketeer Influenced and Corrupt Organizations Act ("RICO") and the Violent Crimes in Aid of Racketeering statute ("VCAR"), holding that 1) sufficient evidence existed to support the jury's finding that the defendants' organization constituted an enterprise for RICO purposes; 2) there was sufficient evidence that the predicate acts alleged in the racketeering counts formed a pattern of racketeering activity; and 3) the evidence supported a finding that the defendants engaged in violent acts because it was expected of them as a way of taking care of each other and as members of the organization.  However, the court remanded defendants' sentences to give the district court an opportunity to indicate whether it would have imposed a non-Guidelines sentence knowing that it had discretion to deviate from the Guidelines.

In Besser v. Walsh, No. 05-4375, which involved habeas petitions filed by multiple petitioners sentenced under New York's persistent offender statute, the Second Circuit affirmed the orders granting the petitions and vacated the orders denying the petitions, on the ground that the New York courts' upholding of the constitutionality of the New York state persistent felony offender statute after the U.S. Supreme Court's decision in Blakely v. Washington, 542 U.S. 296 (2004), was an unreasonable application of clearly established Sixth and Fourteenth Amendment law.  However, the court affirmed as to one petitioner whose conviction became final before Blakely.

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Peconic Baykeeper, Inc. v. Suffolk Cty., No. 09-0097

Peconic Baykeeper, Inc. v. Suffolk Cty., No. 09-0097, involved an action claiming that a county violated the Clean Water Act (CWA) in its application of certain anti-mosquito pesticides, and, separately, its dredging of mosquito ditches.

The court of appeals affirmed judgment for defendant is part, holding that 1) because the CWA established a permit exemption for the maintenance of drainage ditches, and the ditches had as their purpose the draining of surface waters, the county's maintenance activities were exempt from the CWA's permit requirements; and 2) the record supported the conclusion that the county's activities did not bring an area of the navigable waters into a use to which it was not previously subject, and thus did not fall within the CWA's recapture provision. 

However, the court vacated in part because 1) the district court acknowledged the existence of evidence that the county may have sprayed above various creeks, but did not adequately explain the basis for its finding that the county fully complied with the pesticides' label instructions; and 2) the district court's conclusion that the pesticides were not discharged from a point source was in error.

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Civil Procedure, Criminal and Tort Cases

Napoli v. New Windsor, No. 09-2547, involved a 42 U.S.C. section 1983 action claiming that defendants retaliated against plaintiff for exercising his First Amendment rights.  The court of appeals dismissed defendants' appeal from the denial of qualified immunity, holding that the district court's clarification of issues completely unrelated to qualified immunity did not restart the time in which defendants could seek an interlocutory appeal, and thus defendants' appeal was untimely.

In US v. Menendez, No. 08-2761, the court of appeals affirmed defendant's drug conspiracy sentence, on the grounds that 1) the district court did not err in calculating the base offense level for defendant's conviction in Count Two, conspiracy to launder money, by considering the amount of narcotics involved in his conviction for Count One, conspiracy to distribute heroin; and 2) the sentencing disparities between defendant and his co-defendants were not unwarranted in this case.

Anglo-Iberia Underwriting Mgmt. Co. v. P.T. Jamsostek, No. 08-2666, concerned an action against the Republic of Indonesia and an Indonesian state-owned corporation based on their negligent supervision of the corporation's employee.  The Second Circuit affirmed the dismissal of the action for lack of subject matter jurisdiction under the Foreign Sovereign Immunities Act (FSIA), holding that defendants were not engaged in "commercial activity" for purposes of the FSIA, and even assuming arguendo that they were involved in "commercial activity," their alleged negligent supervision of defendant corporation's employees was not "in connection with" such commercial activity.

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Bankruptcy and Criminal Matters

US v. Janvier, No. 08-5978, involved defendant's appeal from the district court's order revoking his term of supervised release due to his use of drugs, and sentencing him to five months' incarceration and an additional period of supervised release.  The court of appeals reversed, holding that the district court lacked jurisdiction because no warrant or summons was issued before the end of the supervised release term.

In re: WestPoint Stevens, Inc., No. 07-4772, involved a bankruptcy proceeding in which the district court's order reversed the bankruptcy court's orders permitting 1) the distribution of unregistered securities and subscription rights to satisfy the liens held by senior secured creditors and 2) the distribution of the remaining subscription rights to junior secured creditors, but affirming the bankruptcy court's order of adequate protection payments to the junior secured creditors.  The court of appeals affirmed in part, holding that the adequate protection payments held in escrow were properly released to the second lien lenders. 

However, the court reversed in part on the grounds that 1) the court of appeals lacked jurisdiction to review the sale order unless a stay had been entered or there was a challenge to the "good faith" aspect of the sale, and 2) in withdrawing the motion for "a stay of the closing of the sale," the parties' stay stipulation permitted the transfer of assets and the lien release, claim satisfaction, and distribution to occur as a single integrated transaction.

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Ruling in Forced Labor Case of US v. Sabhnani, No. 08-3720

In US v. Sabhnani, No. 08-3720, defendants' forced labor, harboring aliens, peonage, and document servitude convictions are affirmed, on the grounds that 1) the district court did not err in denying defendants' motion for a change of venue because the prosecution's statements regarding the character of the crimes were proper in the context in which they were made: bail hearings in which the prosecutors were arguing that defendants were a danger to the victims and their families, justifying an order of pretrial detention; 2) the pretrial publicity was not so pervasive and prejudicial as to have created a reasonable likelihood that a fair trial could not be conducted; 3) the district court acted well within its discretion in determining that the evidence proffered by defendants in support of their motion to require a psychiatric examination of a prosecution witness was insufficient; 4) the district court's instruction on willfulness, considered in the context of the aiding and abetting instruction as a whole, did not render the instructions confusing; and 5) the existence of a criminal agreement between two persons could be inferred from circumstantial evidence.  However, the court reversed the district court's restitution order because the district court erred in awarding overtime pay.

As the court wrote: "Defendants-Appellants Mahender Murlidhar Sabhnani and Varsha Mahender Sabhnani appeal from a judgment of the United States District Court for the Eastern District of New York (Spatt, J.). Following a jury trial, both defendants were convicted on counts of forced labor, harboring aliens, peonage, and document servitude, as well as conspiracy to commit each of the substantive offenses, with Mahender Sabhnani receiving a sentence of 40 months' imprisonment and Varsha Sabhnani a sentence of 132 months' imprisonment. The district court further ordered both defendants to pay substantial restitution to their victims and to forfeit their ownership interest in their home, where their victims had been held during the commission of the crimes at issue. On appeal, the Sabhnanis raise challenges to the district court's refusal to grant the defendants' request for a change of venue, its refusal to compel an independent psychiatric evaluation of a prosecution witness, its management of the presentation of witness testimony, the content of the jury instructions, the sufficiency of the evidence, the extent of the district court's inquiry into purported juror misconduct, the calculation of the applicable Guidelines sentencing range, the amount of restitution, and the scope of the property forfeiture. We vacate the district court's award of restitution to the victims and remand for recalculation of the amount. In all other respects we find Defendants-Appellants' arguments to be without merit."

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Civil Procedure, Constitutional and Criminal Matters

In US v. Basciano, No. 09-0281, the court of appeals affirmed defendant's racketeering and conspiracy to commit murder convictions in part where, because distinct factual elements must be proved to establish 18 U.S.C. section 1959(a)(5) and section 1962(d) conspiracies, a defendant may be prosecuted under both statutes without violating the Double Jeopardy Clause.  However, the court reversed in part on the ground that defendant's prosecution on a successive substantive racketeering charge, as pleaded in the pending indictment, was barred by double jeopardy.

Goldberg v. Danaher, No. 08-5387, involved a due process challenge to the firearm permit revocation procedures employed by the Connecticut Department of Public Safety and Board of Firearms Permit Examiners.  The Second Circuit vacated the dismissal of the complaint on the ground that D. Conn. Local Civil Rule 7(a)(1) clearly contemplated instances where a plaintiff might stand on his pleadings in response to a motion to dismiss, rather than filing an opposition; and it provided that automatic dismissal was not authorized in such cases.

Kuck v. Danaher, No. 08-5368, concerned another action challenging, on due process grounds, the firearm permit renewal procedures employed by the Connecticut Department of Public Safety and the Board of Firearms Permit Examiners.  The court of appeals affirmed the dismissal of the complaint in part on the ground that, whether authorized or not, the fact that state officials required plaintiff to produce proof of citizenship or legal residency in connection with his permit renewal application was hardly outrageous or shocking.  However, the court reversed in part, holding that, while the court was often solicitous of governmental interests, particularly those related to the public's safety, it could not accept, at least without additional factual support, the months-long delay that Connecticut attempted to justify.

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Fox News Network, LLC v. Bd. of Gov'rs. of Fed. Reserve Sys., No. 09-3795, concerned an action brought to enforce a Freedom of Information Act (FOIA) request for information relating to lending conducted by the twelve regional Federal Reserve Banks, the court of appeals vacated summary judgment for defendant, holding that 1) Federal Reserve Board regulations provided that some records at the Federal Reserve Banks -- those kept at the Banks under certain conditions for "administrative reasons"--were records of the Board, and these were required to be searched under the FOIA request at issue; and 2) the district court did not reach the question of whether the Board misconstrued the scope of the request.

Bloomberg L.P. v. Bd. of Gov'rs. of Fed. Reserve Sys., No. 09-4083, involved another action seeking disclosure under the Freedom of Information Act of information about loans made by the Federal Reserve Banks.  The Second Circuit affirmed summary judgment for plaintiff, on the ground that the information at issue -- the identity of the borrowing bank, the dollar amount of the loans, the loan origination and maturity dates, and the collateral securing the loan -- was not "obtained from" the borrowing banks within the meaning of FOIA Exemption 4.

Kinneary v. N.Y., No. 08-1330, concerned an action under the Americans with Disabilities Act for failure to accommodate plaintiff's disability.  The court of appeals reversed judgment for plaintiff, holding that 1) because plaintiff was offered, but failed to qualify for, his captain's license under the accommodation to which he claimed he was entitled, he became unqualified to perform the essential functions of his job; and 2) defendants did not violate state or local discrimination laws by implementing federal regulations.

Clark v. Astrue, No. 08-5801, concerned an action challenging the Social Security Administration's interpretation of two provisions of the Social Security Act, which permitted the Administration to suspend certain benefits of an individual who "is violating" the terms of her probation or parole.  The court of appeals reversed summary judgment for defendants, holding that the Administration's interpretation was contrary to the plain meaning of the Act.

Robinson Knife Mfg. Co. v. Comm'r. of Int'l. Rev., No. 09-1496, was an appeal from a judgment of the tax court holding that, pursuant to 26 U.S.C. section 263A and the corresponding Treasury regulations, petitioner could not immediately deduct its sales-based trademark royalty payments, but was instead required to capitalize such costs.  The Second Circuit reversed, holding that if a producer's royalty payments 1) were calculated as a percentage of sales revenue from inventory and 2) were incurred only upon the sale of that inventory, they were immediately deductible as a matter of law because they were not "properly allocable to property produced" within the meaning of 26 C.F.R. section 1.263A-1(e).

In re: Johns-Manville Corp., No. 06-2103, involved an appeal from the district court's order affirming in part and vacating in part two 2004 bankruptcy court orders.  The court of appeals reversed in part, holding that objector-insurer was not given constitutionally sufficient notice of the bankruptcy court's 1986 orders, so that due process absolved it from following them, whatever their scope.

In US v. Bari, No. 09-1074, the court of appeals affirmed the district court's judgment revoking defendant's term of supervised release, imposed after an earlier conviction for bank robbery and, after revocation, sentencing him principally to a term of thirty-six months' imprisonment, on the grounds that 1) the Federal Rules of Evidence did not apply with their full force in supervised release revocation hearings, and 2) the district judge did not commit reversible error in conducting an Internet search to confirm his intuition regarding a matter of common knowledge.

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Criminal and Personal Injury Cases

In US v. Van Buren, No. 08-6262, the court of appeals affirmed defendant's conviction for failing to comply with the requirements of the Sex Offender Registration and Notification Act (SORNA), on the grounds that 1) defendant's conduct in terminating his residence to travel to North Carolina, with no intention of returning to his residence in New York, qualified as a "change" in his residence regardless of which definition of "change" one uses; 2) between SORNA's language and legislative history, it was clear that a registrant must update his registration information if he alters his residence such that it no longer conforms to the information that he earlier provided to the registry.

In US v. Gilmore, No. 07-0349, the court of appeals affirmed defendant's sentence for producing child pornography of a minor child under his custody and control, holding that, if a sentencing court calculates and considers a sentence under the version of the Sentencing Guidelines in effect at the time of the offense, but referred to a subsequent version of the Guidelines as indicative of the seriousness of the offense and the reasonableness of a non-Guidelines sentence, there is no violation of the Ex Post Facto Clause.

In re Ephedra Prods. Litig., No. 06-2071, involved a personal injury action alleging injuries resulting from the ingestion of the drug ephedra.  The Second Circuit certified the following questions to the New York Court of Appeals:  1) Are the provisions of N.Y. C.P.L.R. section 214-c(4) providing for an extension of the statute of limitations in certain circumstances limited to actions for injuries caused by the latent effects of exposure to a substance?  2) Can an injury that occurs within 24 to 48 hours of exposure to a substance be considered "latent" for these purposes?  3) What standards should be applied to determine whether a genuine issue of material fact exists for resolution by a trier of fact as to whether "technical, scientific or medical knowledge and information sufficient to ascertain the cause of [the plaintiff's] injury" was "discovered, identified or determined" for N.Y. C.P.L.R. section 214-c(4) purposes?

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Challenge to Expulsion of ex-NY Senator Hiram Monserrate Rejected

Monserrate v. N.Y. State Senate, No. 10-0604, concerned an action seeking a preliminary injunction that would have unwound the expulsion of state senator Hiram Monserrate from the New York State Senate. 

The court of appeals affirmed the denial of the injunction, holding that 1) assuming that Monserrate's expulsion burdened constitutional rights related to voting and political association, any such burden was justified by the state interest in maintaining the integrity of the Senate; 2) it would be anomalous to rule that the Constitution prohibits a state legislature from exercising, in the regulation of its internal affairs, a latitude comparable to that expressly allowed to Congress; and 3) the availability of adequate process defeated plaintiffs' "stigma-plus" claim.

In another case decided today, Taravella v. Wolcott, No. 08-2529, involved an action alleging that plaintiff's right to due process was violated when she was fired from municipal employment without a hearing.  The court of appeals reversed the denial of summary judgment based on qualified immunity, holding that 1) plaintiff conceded that defendant neither knew nor had reason to know about an alleged oral promise to plaintiff; and 2) plaintiff's employment agreement was ambiguous as a matter of law.

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Criminal and Insurance Matters

US v. Davis, No. 08-3240, concerned the government's motion for summary affirmance of a defendant's child pornography possession sentence before the appeal of the sentence had been fully briefed.  The court of appeals affirmed, on the ground that the appeal rested on neither fanciful allegations of fact nor inarguable assertions of law.

N.Y. Marine & Gen. Ins. Co. v. Lafarge N. Am., Inc., No. 08-5504, involved an action by a barge operator against an insurer for defense costs associated with Hurricane Katrina-related damages. 

The Second Circuit affirmed in part the district court's order 1) dismissing all causes of action brought against defendant, 2) granting plaintiff the fees and expenses of two of the three law firms it retained to defend Katrina-related actions, and 3) denying plaintiff's motion to transfer and its application for attorneys' fees, holding that 1) the locus of operative facts as well as the interests of efficiency and fairness favored a New York forum; 2) the term "otherwise" in the insurance policy did not include the kind of relationship associated with a shipowner's bailment to a terminal operator, which was at issue in this case; 3) plaintiff did not have a right to pursue independent counsel to defend the Katrina actions whose legal fees would be covered by the primary policy; 4) because summary judgment in favor of defendant was warranted based on the simple non-coverage of the barge under the policy, and because there was no dispute that the primary policy had been exhausted, the excess policy applied to cover expenses in excess of the primary policy's limits.

However, the court of appeals vacated the district court's order in part on the ground that coverage for fees earned by both counsel, either as excess to defendant's primary policy or as initial coverage for plaintiff's independent counsel, was intended pursuant to the umbrella coverage provided by the excess policy.

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Criminal and First Amendment Issues

In US v. DeAndrade, No. 08-4815, the court affirmed defendant's drug conspiracy conviction and sentence, holding that 1) a brief and fleeting comment on the defendant's incarceration during trial, without more, did not impair the presumption of innocence to such an extent that a mistrial is required; 2) the government never relied upon certain challenged testimony, and a curative instruction could easily have done more harm than good by focusing the jurors on two allusive references that they otherwise might have missed or construed as innocuous; and 3) defendant's sentence was unaffected by his juvenile drug offense.

Alexander v. Cahill, No. 07-3677, concerned a First Amendment challenge to attorney advertising rules issued by the New York Appellate Division barring, inter alia, testimonials from clients relating to pending matters, portrayals of judges or fictitious law firms, attention-getting techniques unrelated to attorney competence, and trade names or nicknames that imply an ability to get results, and establishing a thirty-day moratorium for targeted solicitation following a specific incident, including targeted ads on television or in other media.

The court of appeals affirmed in part the district court's summary judgment order invalidating most of the content-based restrictions and upholding the thirty-day moratorium, on the grounds that the content-based restrictions in the disputed provisions regulated commercial speech protected by the First Amendment.  However, the Second Circuit reversed in part, holding that 1) the prohibition on advertising mentioning fictitious firms was valid because it targeted potentially misleading advertising; and 2) as to the moratorium, there was a substantial state interest in protecting the privacy and tranquility of personal injury victims and their loved ones against intrusive, unsolicited contact by lawyers.

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Civil Rights and Criminal Matters

US v. Awad, No. 07-4483, involved defendants' appeal from an order of criminal forfeiture against defendants pursuant to 21 U.S.C. section 853.  The court of appeals affirmed the order, on the ground that section 853 permitted imposition of a money judgment on a defendant who possesses no assets at the time of sentencing.

Huth v. Haslun, No. 08-2203, concerned an action claiming that defendants, who were employees of the New York State Thruway Authority, violated plaintiff's rights under the First Amendment by initiating disciplinary proceedings against her resulting in her demotion.  The court of appeals reversed the denial of summary judgment based on qualified immunity, holding that 1) the conduct that resulted in plaintiff's demotion did not qualify as speech protected from retaliation by the First Amendment; and 2) plaintiff could not assert a claim on behalf of her coworker because that coworker suffered no infringement of her own constitutional rights.

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Arbitration, Civil Rights, Constitutional, and Criminal Matters

Cameron v. N.Y., No. 08-5937, involved an action for false arrest and malicious prosecution.  The court of appeals reversed summary judgment for defendant-officers, on the grounds that 1) prosecutors' opinions as to probable cause and complaining officers' credibility are irrelevant in virtually all cases involving claims of malicious prosecution; and 2) the introduction of such evidence was not harmless because it provided strong external validation for propositions that otherwise would have come in only from the defendants' mouths.

Citigroup Global Markets, Inc. v. VCG Special Opportunities Master Fund Ltd., No. 08-6090, concerned an appeal from the district court's order granting plaintiff's motion for a preliminary injunction and enjoining defendant from proceeding with an arbitration initiated against plaintiff before the Financial Industry Regulatory Authority.  The court of appeals affirmed, holding that the "serious questions" standard for assessing a movant's likelihood of success on the merits remained valid in the wake of recent Supreme Court cases, and neither the district court's assessment of the facts nor its application of the law supported a finding of abuse of discretion.

TJS of N.Y., Inc. v. Smithtown, No. 08-2789, concerned an action seeking an injunction and declaratory judgment to the effect that defendant-town's zoning ordinance did not give plaintiff adequate alternative sites on which to locate its adult entertainment business.  The court of appeals vacated the denial of an injunction for plaintiff on the grounds that the First Amendment required courts to consider the adequacy of alternative sites available when the ordinance is challenged, not at the time the ordinance is passed.

In US v. Gardner, No. 08-4793, the court of appeals affirmed defendant's drug and firearm convictions, on the grounds that, when a defendant acquires a firearm using drugs as payment, he possesses the firearm in furtherance of a drug trafficking crime in violation of 18 U.S.C. section 924(c)(1)(A).

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Civil Rights Case Involving TB Hold and Securities Litigation

Redd v. Wright, No. 06-4315, involved a 42 U.S.C. section 1983 action arising out of plaintiff inmate's confinement in tuberculosis hold following his refusal to submit to tuberculosis testing. 

The court of appeals affirmed summary judgment for defendant, on the grounds that 1) prior precedent did not "clearly foreshadow" a holding that the testing policy, as applied in this case, violated plaintiff's free exercise rights; 2) it could not reasonably be said that the defendants acted in violation of clearly established Eighth Amendment law by implementing the policy; and 3) it was not clearly established that plaintiff was entitled to some kind of notice that religious objectors could be exempt from the policy.

In re: Omnicom Group, Inc. Secs. Litig., No. 08-0612, involved a securities class action alleging that defendant fraudulently accounted for a transaction.

The Second Circuit affirmed summary judgment for defendants, holding that: 1) plaintiffs failed to prove loss causation because their expert's testimony did not suffice to draw the requisite causal connection between the information in the article at issue and the fraud alleged in the complaint; and 2) the generalized investor reaction of concern causing a temporary share price decline was far too tenuously connected -- indeed, by a metaphoric thread -- to the transaction to support liability.

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US v. Navas, No. 09-1144

US v. Navas, No. 09-1144, involved a drug conspiracy prosecution in which the district court suppressed narcotics seized by law enforcement officers during a warrantless search of a trailer.

As Circuit Judtge Wesley noted in the the court of appeals opinion:  "This appeal concerns a trailer, unhitched from its cab and parked in a warehouse. The district court held that a warrantless search of the trailer ran afoul of the Fourth Amendment. On appeal, defendants liken the trailer to a fixed structure, and argue that the district court properly suppressed the fruits of the search. The government argues that, whether or not attached to a cab, the trailer is subject to a warrantless search pursuant to the "automobile exception" to the Fourth Amendment's warrant requirement. As the trailer was readily mobile and commanded only a diminished expectation of privacy, we hold that the automobile exception applies."

The court of appeals reversed on the ground that the search was lawful under the "automobile exception" to the Fourth Amendment's warrant requirement.

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The Second Circuit decided one case concerning the intersection of federal Indian law and tax law, and another involving attorney discipline.

New York v. Golden Feather Smoke Shop, Inc., No. 09-3942, involved an appeal from a preliminary injunction prohibiting the sale of untaxed cigarettes other than to members of the Unkechauge Nation for their personal use.  The Second Circuit certified the following questions to the New York Court of Appeals:  1) Does N.Y. Tax Law section 471-e, either by itself or in combination with the provisions of section 471, impose a tax on cigarettes sold on Native American reservations when some or all of those cigarettes may be sold to persons other than members of the reservation's nation or tribe?  2) If the answer to Question 1 is "no," does N.Y. Tax Law section 471 alone impose a tax on cigarettes sold on Native American reservations when some or all of those cigarettes may be sold to persons other than members of the reservation's nation or tribe?

In In re: David Rodkin, No. 09-90133, the court vacated an attorney's admission to the Second Circuit bar, on the ground that the attorney made a material misrepresentation in his application for admission to the court's bar and failed to respond to a prior order directing him to show cause why his admission should not be vacated.

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Review of a Decision Reinstating a Deportation Order

Herrera-Molina v. Holder, No. 07-0985, involved a petition for review of a February 23, 2007 decision of the United States Department of Homeland Security, Immigration and Customs Enforcement ("ICE"), reinstating a prior order of deportation.

As the court of appeals wrote:  "Petitioner William Herrera-Molina seeks review of a February 2007 decision of the United States Department of Homeland Security, Immigration and Customs Enforcement ("ICE"), reinstating a prior order of deportation for illegal entry, entered in July 1985 against Herrera-Molina. The first issue before us is whether the reinstatement of removal statute, section 241(a)(5) of the Immigration and Naturalization Act ("INA"), as added by section 305(a)(3) of the Illegal Immigration Reform and Immigrant Responsibility Act of 1996 ("IIRIRA"), 8 U.S.C. § 1231(a)(5), is impermissibly retroactive as applied to Herrera-Molina, an alien who illegally reentered the United States and married a United States citizen prior to the statute's enactment."

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Banking, Civil Rights, Employment and Immigration Decisions

The Second Circuit decided cases concerning banking law, prisoner litigation, sex discrimination and immigration.

Vega v. Lantz, No. 08-4748, involved a 42 U.S.C. section 1983 action claiming that plaintiff-inmate was improperly labeled as a sex offender in violation of the Due Process Clause.  The Second Circuit reversed summary judgment for plaintiff, holding that: 1) while it may be the case that, in certain circumstances, misclassification as a sex offender results in "stigma plus," this possibility was of no particular assistance to plaintiff because he did not establish a threshold requirement -- the existence of a reputation-tarnishing statement that was false; and 2) because current regulations did not prohibit prison officials from considering acquitted conduct when assigning a needs score, they did not support the existence of a liberty interest.

Castro v. Holder, No. 08-4820, involved a petition for review of a denial of petitioners' asylum application.  The Court of Appeals granted the petition on the ground that, instead of evaluating the claim against the backdrop of Guatemala's volatile political history, the Immigration Judge (IJ) short-circuited the analysis and dismissed petitioner's claim of political persecution by presuming that petitioner was targeted for his resistance to being recruited by corrupt officers, which the IJ believed to lack any political dimension, and for reporting the crimes of rogue police officers, which the IJ considered an occupational hazard of petitioner's job, and thus again non-political.

Brzak v. United Nations, No. 08-2799, concerned a sex discrimination action against the United Nations and various UN officials.  The Court of Appeals affirmed the dismissal of the complaint, on the grounds that where: 1) the UN and the related individual defendants had, respectively, absolute and functional immunity from suit; and 2) plaintiffs offered no principled arguments as to why the continuing existence of immunities violates the Constitution.

Ma v. Merrill Lynch, Pierce, Fenner & Smith, Inc., No. 08-4828, was an action against Merrill Lynch based on unauthorized transfers from plaintiff's investment account.  The Second Circuit affirmed summary judgment for defendant, holding that New York U.C.C. Section 4-A-505, which imposes a one-year statute of repose on certain claims based on electronic funds transfers, bars plaintiffs' common law claims, which had longer limitations periods.

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