Motion for costs after remand. A plaintiff sought sanctions and attorneys' fees because a case he had commenced had been improperly removed to federal court. The defendants had agreed to stipulate to remand, but the plaintiff refused to so stipulate. The plaintiff's initial motion to remand had been granted, but its motion for fees and sanctions was denied. The Second Circuit on appeal from the district court's order on fees and sanctions, affirmed the decision of the district court, but made clear that the district court had had jurisdiction to hear the motion. The decision in Bryant v. Britt can be found here.

Late appeal. The Board of Immigration Appeals dismissed an appeal as untimely. The petitioner had sent his notice of appeal by overnight delivery (as recommended by the BIA), but it was not delivered for five days. Had it been delivered on time, it would have been timely. The Second Circuit held that these facts might constitute the "unique and extraordinary circumstances" that would allow the BIA to consider the appeal although it was technically late. The Court vacated the BIA opinion and remanded the case for further proceedings. The decision in Sun v. United States Department of Justice can be found here.

What's the amount. The Second Circuit reversed the denial of a defendant's presentencing motion to withdraw his guilty plea on a criminal drug charge brought under 21 U.S.C. 841(b)(1)(A), which charge requires a finding of a specific quantity of crack. The defendant had not admitted to the quantity of crack involved in the offense. The decision by the Second Circuit in United States v. Gonzalez can be found here.

Non-argument calendar. Commencing October 3, 2005, the Second Circuit will institute a Non-Arguement calendar for all INS cases, involving the denial of an asylum claim. For more information on this procedure, check out the Second Circuit website.

No pretrial restraint. The Second Circuit has decided that 28 U.S.C. 2461(c), part of the Civil Asset Forfeiture Reform Act of 2000, does not authorized pretrial restraint of assets that the government claims are subject to criminal forfeiture. The decision in United States v. Razmilovic can be found here.

No 9/11 Insurance Money for Citigroup. The Second Circuit has affirmed the judgment of the District Court of the Southern District of New York that Citigroup was not entitled to insurance money paid to 7 World Trade Company, L.P. for Citigroup's permanent but removable property at 7 World Trade Center, where Citigroup had rented space. The Court held that because Citigroup's property was explicitly excluded from coverage, it was entitled to no money from the insurance proceeds. The decision (very short) in Citigroup, Inc. v. Industrial Risk Insurers can be found here.

Local call. All it takes is a local telephone call to meet the requirement of a connection to interstate commerce to support a federal conviction. The statute at issue, 18 U.S.C. 1958, requires the use of a facility in interstate commerce. The Second Circuit held that that phrase only means that the facility (which includes means of transportation and communication) is used -- at times -- in interstate commerce, not that the alleged criminal used it in interstate commerce. The circuits appear to be split on this issue. The decision in United States v. Perez can be found at here.

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.