How odd! The Second Circuit has held that the destruction of trial exhibits, absent a showing of specific prejudice to an appellant's ability to perfect an appeal, does not warrant a new trial. That is not odd. The Second Circuit is in agreement with most other circuits on this point. What is odd that the two circuits that hold differently are the Fifth and the Eleventh Circuits, two fairly conservative circuits. Well, if the Fourth Circuit had joined them, I would have believed that the Messiah has come. To read the Second Circuit's opinion in United States v. Weisser, click here.

Supreme Court nominees. Everyone's talking about who's going to replace Chief Justice Rehnquist (or other aging justices). (It's not as bad as last year when the media decided that there Rehnquist and O'Connor were both quitting and neither did. Serves the media right!) In the past I had thought that a number of Second Circuit judges would be excellent choices. My top had been Senior Judge Jon Newman, although he's now in his 70s. I know Amalya Kearse was Judge Newman's choice -- he did an op ed piece suggesting her appointment during the Bush I presidency -- and she certainly would have been a credible pick and a fine justice. I also like Judge Jose A. Cabranes, although not being from the Federalist school, I doubt he'd even be considered, let alone considered seriously. If a Democrat were in office Guido Calabresi might have been chosen, although because of intemperate remarks about President Bush, his appointment would be fought by the Republicans. But actually, the best pick I could provide to President Bush, if he were inclined to pick a New Yorker, would not be on the Second Circuit, but on the New York State Court of Appeals. Judge Robert Smith would not only be a credit to the High Court, but has the Conservative credentials (Republican, Federalist Society) that he could actually be considered. Here's hoping President Bush looks beyond the short list that has been reported in the media.

Voting Rights of Felons. The Second Circuit, sitting en banc, has heard a case involving the voting rights of prisoners and felons on parole. New York law provides that such individuals are not eligible to vote, but the statute has been challenged under the Voting Rights Act on the ground that that qualification results in the denial to vote because of race. An article on the argument in Muntaqim v. Coombe can be found here. (You may need a password to access it. Sorry.) I will report on further developments.

Unfair settlement. The Government, in the course of criminal proceeding, entered into a settlement agreement with members of the Rigas family. Under the agreement, the Rigases would forfeit certain assets and all victims of their crimes would be discharged. Certain victims protested, claiming that the settlement would foreclose them from getting full restitution in ongoing civil actions, which they claim to be entitled to under the Crime Victims' Rights Act of 2004 ("CVRA"). The Second Circuit noted that, under the Manditory Victim Restitution Act ("MVRA"), victims are not entitled to restitution if there are too many victims or if the factual issues are so complex that determining the cause or the amount of a victim's loss would unduly prolong the sentencing process. In this case, both exceptions to required restitution under the MVRA, were applicable. Also, in light of the complex issues of culpability of the individuals and because of the security ineterest affecting the Rigases assets, the victims could not meet their burden in showing that the Government or the district court had acted unreasonabley in entering into the Settlement Agreeement or approving it. The decision in In re W. R. Huff Asset Management Co. can be found here.

"Excessive" Appeal -- Off Topic. This has nothing to do with the Second Circuit, but the Pennsylvania Superior Court's decision in Jones v. Jones may be of interest to appellate practitioners. The appellant (the wife in a divorce case) has raised 29 issues on appeal and listed them in narrative form in a statement required by Pennsylvania rules. The Court found that such a statement waived the issues on appeal and that the appeal was frivolous. The case was remanded for a hearing on counsel fees. The decision can be found here.

Denial of en banc review. The Court's decision to deny en banc review in Landell v. Sorrell seems to have triggered a debate. That case involved Vermont's radical limits on campaign spending. An article on the case from today's New York Law Journal can be found here. (You may need a password. Sorry.) The various decisions can be found at the Second Circuit website. (I will try to get a better cite.)

New certified questions. The Second Circuit has certified five questions to the New York State Court of Appeals regarding the application to summary judgment of section 388(1) of the New York Vehicle and Traffic Law. The questions are:

1. Under New York law, are uncontradicted statements of the both the owner and the driver of a car that the dirver was operating the vehicle without the owner's permissions sufficient to warrant a court in awarding summary judgment to the owner?

2. If no, can additional circumstantial evidence such as the contemporaneous accident reports submitted by the owner tip the balance and warrant a court in awarding summary judgment despite the interested nature of the sources?

3. If no, is the uncontradicted testimony of the driver and the woner that the driver was operating the vehicle without permission, even if not sufficient for summary judgment, sufficient at a trial to overcome the statutory presumption of permissive use, thereby placing the burden on the plaintiff to prove permissive use at trial?

4. Even if the concontradicted testimony of the dirver and owner that the use of the vehicle was without permission is not by itself enough to rebut the presumption of permissive use, is the addition of such further evidence as contemporaneous accident reports by the ownersufficient to do so, with the result at trial that the burden of proving permissive use will rest on the plaintiff?

5. Is the answer of any of the previous questions affected by the absence of evidence that the defendant (Amtrak) reported the unauthorized use of its vehicle to any law enforcement agency?

The decision in Country Wide Insurance Co. v. National Railroad Passenger Corp. a.k.a. Amtrak can be found here.

Bad character. An non-citizen sought suspension of deportation. However, prior to that she had attempted to obtain asylum and had made false statements in her testimony. The Second Circuit held that such statements could constitute evidence that she was not of good character, which would preclude the relief she sought. The decision in Medina v. Gonzales can be found here.

Prisoner for a Day. Susan Godding was convicted of the embezzlemant of almost $366,000 from her employer, but was sentenced to one day's imprisonment, five years' supervised reliease, with six months in hom confinement, and full restitution. The Government appealed this sentence. The Second Circuit remanded the case to the District Court, noting that the Court would be required to consider, among other things, the need for the sentence imposed "to reflect the seriousness of the offense, to promote respect for the law, and to provide just punishment for the offense." The decision in United States v. Godding can be found here.

Habeas Proceeding is Civil. Well, it should come as no surprise that a habeas proceeding is a civil action, but the question in Vacchio v. Ashcroft is whether its a civil action within the meaning of the Equal Access to Justice Act, which would allow the plaintiff to recover attorneys' fees. The proceeding at issue was "a petition for a writ of habeas corpus challenging an immigration detention." the Court found that it was a civil action under the Act and that the plaintiff was a prevailing party, but because the Government's position was substantially justified, and that the plaintiff was not entitled to fees. Judge Oakes issued a short dissent. The decision can be found here.

You gotta sign. Sarhank had a contract with one of Oracle Corp.'s subsidiaries. It sought arbitration not only with the subsidiary, but with Oracle itself. Although Sarhank had an arbitration agreement with the subsidiary, Oracle had never signed such an agreement. The arbitrators (under Egyptian law) found that Oracle was bound to arbitrate and rendered an award against both Oracle and the subsidiary. Sarhank sought to enforce the award in America under the Convention on the Recognition and Enforcement of Foreign Arbitral Awards. The Second Circuit held that it was not bound by the finding of the arbitrators as to whether Oracle was bound by the arbitration clause and found that the award could not be enforced as Oracle had not agreed to arbitrate. The decision can be found here.

I thought this was over. Well, Judge Guido Calabresi's remarks comparing Bush v. Gore to the use of legitimate institutions by fascist leaders is back in the news. The Second Circuit's Judicial Council has determined that the admonition he received for the remark by the chief judge was sufficient punishment. An article on this determination can be found here. This is old news. You'd think the Judicial Council would have something better (or at least more timely) to do.

Certified Question. The New York State Court of Appeals has answered a certified question regarding common law copyright under New York law of sound recordings produced prior to 1972 (at which date sound recordings became subject to statutory copyright). The decision in Capitol Records, Inc. v. Naxos of America, Inc. can be found here. C.E. Petit of Scrivener's Error has some comments on the case here.

New case for the Supremes? Occasionally, I will point out a Second Circuit case that I think might be picked up by the Supremes. The case of Abdul-Malik v. Hawk-Sawyer might be such a case, although procedurally it might not make the cut (if certiorari is even sought). The appeal was dismissed by the Second Circuit on the ground that it was meritless. But that's only Second Circuit precedent. The Court noted that there is a sharp dispute among the circuits and suggested congressional attention.

The question is how to treat prisoners sentenced first in federal and then in state court, and the phenomenon (in some circuits) that neither the state nor the federal court can run those sentences concurrently.

The decision can be found here.

Clarett appeal. The Supreme Court has denied certiorari in the Clarrett case, challenging the eligibility rules of the NFL. For more info, click here.

Cross-post. It's been a while since I've done a cross-post with this blog's sister blog, The FAPE Page, but another Second Circuit case in the area of special education law just came down. The Court, in Murphy v. Arlington Central School District Board of Education, has held that expert fees are compensable as costs under the Individuals with Disabilities Act, but that such fees will not generally be approved unless the application is accompanied by time records contemporaneously maintaned by the person performing the services. The decision can be found here.

Offer of judgment and mootness. Trans Union, L.L.C. issued a credit report about Peter McCauley that was incorrect and prevented him from getting a certain student loan. He had to borrow that money and accrued damages of $240. He sued Trans Union. Trans Union made an offer of judgment for the entire $240 plus court costs, but it was rejected. It moved for summary judgment, claiming that there was no longer any case or controversy between the parties. The District Court noted McCauley, at the time the offer was made, had potentially been entitled to punitive damages, but determined that he was no longer entitled to such damages (presumably because Trans Union was willing to pay) and that if Trans Union repeated its offer, and McCauley declined to accept it, another summary judgment could be made. Trans Union made another offer in the same amount. The offer stated that there was no admission of guilt and that the judgment should be confidential. McCauley rejected it and, upon a second summary judgment, the Court dismissed the case. McCauley appealed the case pro se and won. The Court held that the dismissal made no sense. Trans Union admitted that it owed McCauley $240. It made a conditional offer. McCauley was not obligated to agree to the conditions, but in not doing so, he wound up with nothing even the amount that Trans Union admitted it owed. The Court concluded that the rejected settlement offer did not moot the case so as to warrant judgment in favor of Trans Union. The Court remanded the case to the District Judge for the purpose of entering a default judgment. Both parties had agreed at oral argument that such a solution would satisfactorily resolve the case. The decision in McCauley v. Trans Union, L.L.P. can be found here.

Changing a copyrighted program. That's what Titleserv did to a program created by a former employee who left without signing over his copyrights. He told Titleserv that it could only use the program as is, but that did not stop Titleserv, since modifications were required to make the programs work. The employee sued for breach of copyright, and Titleserv moved for summary judgment, which was granted. On appeal, the Second Circuit affirmed, holding that, under 17 U.S.C. 117, it was entitled to adapt the programs because it was an owner of the programs, the copy was created as an essential step in the utilization of the computer program in conjunction with a machine and the program was ued in no other way. The decision in Krause v. Titleserv, Inc. can be found here.

Judge Frederic Block of the Eastern District of New York has asked the Second Circuit for guidance on a case where blacks were disproportionately excluded from a jury that convicted a man of three robberies. An article on this case (Anderson v. Superintendent) can be found in today's New York Law Journal. You may need a password to get the article. The decision can be found here.

Finality of Criminal Judgment. In Moshier v. United States, the Second Circuit held that a criminal judgment was final for purposes of the Anti-Terrorism and Effective Death Penalty Act of 1996 when the time for filing a direct appeal expires. The decision can be found here.