New blog. Well, OK, it's been around since December 2004, but it's new to me. I've just run across the Second Circuit blog, authored by a group of Federal Public Defenders in New York, New York. I haven't done an exhaustive look at the blog, but it seems to be oriented toward criminal law (understandably, given the identities of their authors). Welcome to the blogosphere, gang.

Parents. Under immigration law, someone subject to coercive family planning policies in his or her native land (or that person's spouse) may seek asylum in the United States. The Second Circuit has held that parents or parents-in-law of such persons are not entitled to seek asylum. The decision in Yuan v. United States Department of Justice can be found here.

Dickens. I usually don't report on criminal cases involving sentencing disputes, but being a big Charles Dickens fan, I could not go without providing you with a link to United States v. Brady, a case where Judge Cardamone starts off with a quote from A Tale of Two Cities. Unfortunately for Brady, the sentence she was given by the District Court, along with the giant downward departure, was remanded because the District Court's factual findings were insufficient to justify the departure. The decision can be found here. The worst of times, indeed! (Of course, further factfinding will be performed by the District Court, which may then warrant the departure, so you never know.)

Jury decides. A party who demands that a jury consider a claim for lost wages under Title VII will get a jury where the defendant fails to object. That's what the Second Circuit held in Broadnax v. City of New Haven, a case of first impression. A lost wages award is considered to be an equitable remedy, and equitable claims are generally not decided by juries. However, the Court found, agreeing with other circuits, that a failure to object is equivalent to consent under Rule 39(c) of the Federla Rules of Civil Procedure, which allows jury trials even in cases not triable of right by juries if both parties consent. The decision can be found here.

Amend that notice. If you file a notice of appeal from a judgment and the judgment is later amended after a post-trial motion, you had better file a new notice of appeal if you want to appeal from any of the amendments. The plaintiff in Sorensen v. City of New York learned that rule to her regret -- her appeal was dismissed. The decision in that case can be found here.

BTW, you've probably heard of this case. It's about the Danish woman who left her baby in a carriage in front of a restaurant while she was having lunch inside. Evidently, that's common in Denmark.

Circuit split. The Second Circuit has noted that "[t]here is a circuit split on the question of whether the actual use [of the telephone] by the defendant must be an interstate one" for such acts to be covered by 18 U.S.C. 1958. The District Court had answered that question in the negative, in accord with decisions of the Fifth and Seventh Circuits. The Sixth Circuit has taken the opposite view, as had two district courts in the Second Circuit. The Second Circuit agreed with the Fifth and Seventh Circuits.

In that the Sixth Circuit decision was limited to its facts by a later Sixth Circuit opinion, it is unlikely that this issue is likely to go up to the Supreme Court at this time.

The decision in United States v. Perez can be found here.

Quattrone report. Frank Quattrone's appeal of his obstruction of justice conviction was argued in the Second Circuit. The New York Sun published this report of the argument.

Non-attorney Parent representing Minor Child. The Second Circuit, in Tindall v. Poultney High School District, has seemed to take a looser view on non-attorney parents representing their minor children. While, in this case, the Court did not allow the parent to represent the child, it gave more time for counsel to be retained. It also stated that "the rule that a parent may not represent her child should be applied gingerly." The decision does not set out the exact perameters of the rule, so I guess that is an issue for another day. Judge Kearse concurred in part and dissented in part. Her dissent went straight to the issue of non-attorney parents representing their children. She disagrees with the Court's less stringent view. The decision can be found here.

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.