New Rule is not Retroactive. The rule set out in Blakely v. Washington is not a new rule of constitutional law made retroactive to cases on collateral review by the Supreme Court. That finding was the death knell for Freddy Carmona's motion to file a second habeas corpus petition based on Blakely. The decision in Carmona v. United States can be found here.

For those of you who do not know what Blakely is about, where the heck have you been. Read the opinion, or better yet, read the blog.

Moist is Not Wet. The Second Circuit held that Georgia Pacific Corporation's product, "Quilted Northern Moist-Ones" pre-moistened towelettes did not infringe on Playtex Products, Inc.'s "Wet Ones" brand. The decision in Playtex Products, Inc. v. Georgia Pacific Corporation can be found here.

Senior Circuit Judge Ellsworth Van Graafeiland died. The Judge, who was 89 years old, died on Saturday. He was appointed to the bench in 1974. For more information, click here. (Thanks to Howard Bashman of How Appealing for the pointer.)

Voter Enrollment Scheme Enjoined. New York law provides that if a party does not get at least 50,000 votes for its gubernatorial candidate in the previous election, the party is removed from the voter registration forms and voters registered as members of such parties become non-enrolled voters. As a recognized party has certain benefits as a result of that status. For instance, a party may choose their statewide candidate in a closed primary electin, while an independent organization may not. A number of small political parties challenged the law and obtained a preliminary injunction. The Board of Elections appealed.

The Second Circuit affirmed the grant of the injunction. It upheld the District Court's finding that the law would damage the minor parties ability to identify, appeal to, inform, organize, mobilize and raise money from its supporters." It also held that the State's interest in upholding the statute did not outweigh the plaintiff's interests.

The decision in Green Party of New York State v. New York State Board of Elections can be found here.

Harmless Error? The Kings County DA obtained the conviction of Guy Zappulla with the use of a confession taken in violation of Zappulla's Miranda rights. The Appellate Division, Second Department affirmed his conviction, holding that the use of the tainted confession was harmless error. The District Court denied Zappulla's petition for a writ of habeas corpus. But the Second Circuit reversed and remanded, holding that the Appellate Division applied the harmless error review in an objectively unreasonable manner and that the admission of the confession required the Court to vacate the conviction.

The factors relevant to a harmless error determination as to improperly admitted evidence, based on Supreme Court precedent, are:

the overall strength of the prosecutor's case;

the prosecutor's conduct with respect ot the improperly admitted evidence;

the importance of the wrongfully admitted testimony; and

whether such evidence was cumulative of other properly admitted evidence.

Based on these factors, the Second Circuit held that the admission of the confession was not harmless error.

The decision in Zappulla v. People can be found here.

Outside the record. The Second Circuit affirmed the decision of the District Court in which the Court, after a three-day bench trial, determined that the plaintiff was entitled to disablity benefits. The defendant insurance company had argued that the District Court had erred in considering material outside the administrative record in reaching its decision. The administrator in this case was the very insurance company that had denied the claim.

The Second Circuit held that such a conflict, in and of itself, did not per se constitute good cause to consider evidence outside of the administrative record. Such a rule would allow a plaintiff to add evidence to the record in almost every case because the administrator of the benefits plan is always linked to the insurer. However, in this case, there were no written procedures for claims review, and the Court held that the lack of such procedures exacerbated the conflict, rendering it proper for the District Court to have considered the new evidence.

The Court then looked to the evidence and held that it was sufficient to justify the District Court's finding. The Court also upheld the District Court's award of attorneys' fees.

The decision in Locher v. Unum Life Insurance Co. can be found here.

Update on Second Circuit News. It's not much of an update, but I called the Second Circuit library and asked what the problem was with the Second Circuit News blog. I was told that it had been taken down. The person I spoke to wasn't sure if it was going to be coming back up. He just said that there were some "issues" with it. If I hear anything further, I will let you know. And if any of you find out anything, let me know -- shausler at gmail.com.

Second Circuit New -- AWOL. With some trepidation, I note that Second Circuit News has not been accessible for the past few days. It would be a shame if this valuable cite were to disappear into the blogosphere. I will keep my readers posted if I hear anything (and I would appreciate it, if you know anything about the blog's disappearance, please keep me informed -- shausler at gmail.com)

The Railroad is Sovereign. The plaintiffs in Abrams v. Societe Nationale des Chemins de Fer Francais were Holocaust survivors, who brought an action against the railroad company that transported tens of thousands of French civilians to Nazi death camps. The District Court dismissed the case for lack of subject matter jurisdiction because the railroad had been nationalized and was an instrumentality of the French government and, hence, protected from suit by the Foreign Sovereign Immunity Act.

The Second Circuit had vacated the order and remanded for further proceedings on the issue of what the State Department's position during World War II on the significance of the corporate form in foreign sovereign immunity determinations and whether the State Department would have recognized imunity in a case like this.

The defendants sought review from the Supreme Court, which granted certiorai, vacated the Second Circuit decision and remanded for further consideration in light of the Court's decision in Republic of Austria v. Altmann.

Upon remand, the Court affirmed the decision of the District Court. The Court held that Altman held that the Foreign Sovereign Immunity Act could be applied retroactively and that the State Department's views were irrelevant. Hence, the District Court lacked jurisdiction to hear the case and had correctly dismissed it.

The decision can be found here.

I've always wondered why cases like this were not barred by the statute of limitations. Anyone who can enlighten me is invited to e-mail me with the information -- shausler at gmail.com.

Legal Malpractice and the Arbitrator's Affidavit. Mason, Ketterman & Cawood had an interesting idea. When sued for malpractice relating to its representation of a woman in a Dalkon Shield-related arbitration, it got the arbitrator to provide an affidavit to the effect that none of their alleged mistakes would have changed the decision. The District Court granted summary judgment to the firm on the ground that, even if the firm had been negligent in its representation, the negligence was not the proximate cause of the injury, the loss before the arbitrator.

The Second Circuit held that the arbitrator's affidavit was inadmissible and its use in the summary judgment motion was prejudicial to the plaintiff. It is well settled law that testimony revealing the deliberative thought processes of judges, juries or arbitrators is inadmissible. Admission of the affidavit put the plaintiff in an impossible spot: she could not rebut the thought processes of the arbitrator. Hence, the Court vacated the decision to the extent it granted summary judgment on the issue of liability.

The Court did affirm the decision to the extent that it ruled in favor of the law firm on its counterclaim for the costs and expenses of the arbitration.

The decision in Rubens v. Mason can be found here.

Another new blog. Say hello to Appellate Law and Practice, a blog which deals with, well, appellate law and practice. (Bet you didn't see that coming.)

Back to the Second Circuit. The case, Muntaqim v. Coombe, may be heading back to the Second Circuit. The Court had denied rehearing en banc in October. However, nine judges said they would reconsider if the Supreme Court denied certiorari, which the Court has done. The case involved the issue of whether a provision of New York Election Law, which disenfranchises persons currently in prison or on parole can be challenged under the Voting Rights Act. The order denying rehearing, along with concurrences and dissents can be found here. The original panel decision, which affirmed the dismissal of the action, can be found here. Thanks to SCOTUS for alerting us to this.

Immigration Appeals Surge in the Second Circuit. Now this is interesting. Immigration appeals constitute 44% of the Second Circuit's docket. (That doesn't leave much space for all those boring sentencing appeals.) In order to keep pace with these appeals, the Court is taking a number of steps, such as asking its judges to sit more often, hiring a part-time staff attorney and bringing on a dozen volunteer attorneys to help its regular staff attorneys vet and schedule cases. The Court is planning on fielding three panels of judges in a single week three times next year. For more information, read the New York Law Journal article on this subject by clicking here. I think you need a subscription to read it. (Sorry.)

Sex Offender Registration. The Second Circuit, in United States v. Rosario, decided the issue of whether a condition of supervised release requiring registration as a sex offender violates the Tenth Amendment. The sentence that Rosario was serving was not related to a sexual offense, but he had previously been convicted of rape of a seven-year-old girl. The Court held that because Rosario was already required to register under state law, conditioning his release on registration was not an undue intrusion into a state's regulatory scheme.

A second issue addressed by the Court was whether modifications to the oral pronouncement of sentence in a subsequent written judgment are valid. The general rule, the Court acknowledged, is that they are not. The basis for this rule is that a criminal defendant is entitled to be present at all critical stages of his trial, including sentencing. However, as to modifications of the terms of supervised release omitted from the oral pronouncement, the Court has permitted the inclusion of mandatory or standard conditions of supervised release contained in subsections 5D1.3(a), (c) of the Sentencing Guideline, conditions recommended by subsection 5D1.3(d) of the Guidelines and basic administrative requirements that are necessary to supervised release. Here, the Government agreed that a provision requiring Family Court approval before Rosario could see his son, which was not imposed in the oral pronouncement, should be removed, and the Court remanded the case to delete that provision.

The Court did note, in dicta, that in some circumstances, it would afford the sentencing judge an opportunity to reimpose the provisions of the written sentence in the defendant's presence.

The decision can be found here.

This case was decided on October 8, 2004. I am trying to catch up on some cases that I had pulled for inclusion in this blog, but had not had the opportunity to write about. Sorry for the delay.

Underneath Their Robes post. Check out the Halloween post of Underneath Their Robes, which reveals certain secrets of some Second Circuit Judges, among others.

Appellate Advocacy Seminar. DRI is running an appellate advocacy seminar at the Westin New York in New York, New York on November 11-12, 2004. It looks like a great program. Howard Bashman of How Appealing will be there (and, I hope, so will I). For more information, click here.

Minors and sentencing. The Second Circuit, in United States v. Lewis, decided an issue of first impression with respect to whether the use of a minor in a crime can be used to enhance a sentence, under section 3B1.4 of the Sentencing Guidelines, of a leader of a conspiracy who was not directly involved with recruiting a minor, and did not have actual knowledge that such individual was a minor, but who nonetheless had general authority over the activities in furtherance of the conspiracy. The Court held (in accord with other circuits that had decided the issue) that 3B1.4 does not require scienter in order to apply the enhancement. The Court determined that the use of a minor by one of the defendant's co-conspirators was a reasonably foreseeable act in furtherance of the conspiracy.

The Court also addressed the issue of whether the mother of one of the defendants had the authority to consent to a search of his bedroom where the defendant himself was present at the scene of the search, handcuffed in a police car outside his apartment building. The Court held that since the mother had permission to access the defendant's room, her consent was sufficient to warrant the search of that room.

The decision can be found here.

Chief Justice Not at Work. Chief Justice Rehnquist was not able to make it to work today. That's not surprising in light of his recent surgery for thyroid cancer. For more information, click here.

Motion for dismissal treated as one for summary affirmance. In United States v. Monsalve, the defendant agreed to plead guilty to one count of conspiracy with intent to distribute greater than one kilogram of heroin. However, at sentencing, her counsel objected to her sentence on the ground that because the defendant had not orally admitted to a drug type or quantity, her sentence should not be based on greater than one kilogram of heroin. She appealed on that ground.

The Government moved to dismiss the appeal based on the defendant's waiver of appeal in the plea agreement. The Court agreed that the defendant had waived her appellate rights, but that certain statutory rights could not be waived. The Court held that the defendant's only contention on appeal -- that her sentence violated her Sixth Amendment under Blakely v. Washington because the District Court imposed the mandatory minimum sentence based on a drug type and quantity that she had not verbally admitted during her plea colloquy -- was frivolous and treated the Government's motion as one for summary affirmance, and affirmed the sentence imposed by the District Court.

The decision can be found here.

Apologies. Posting has been a little slow of late. Unfortunately, even faithful bloggers have spurts of heavy work activity, which keep them from their blogging duties. I can't promise that it won't happen again, but I will do my best to keep the posts coming at a steady pace.