Justia U.S. 2nd Circuit Court of Appeals Opinion Summaries

Attempted robbery in the second degree under New York law is not a "crime of violence" under the "enumerated offenses" of application note 1(B)(iii) to Section 2L1.2 of the November 1, 2014 edition of the Sentencing Guidelines, but it is a "crime of violence" under the "force clause" of application note 1(B)(iii) to Section 2L1.2 of the November 1, 2014 edition of the Sentencing Guidelines.The Second Circuit affirmed defendant's sentence for illegal reentry into the United States after previously having been deported after the commission of an aggravated felony. The court held that defendant's prior New York conviction for attempted robbery was a crime of violence under the force clause. View "United States v. Pereira-Gomez" on Justia Law

Empire a distributor of alcoholic beverages, is New York State’s exclusive distributor for popular brands like Johnnie Walker, Grey Goose, and Seagram’s Gin. Empire alleges that from 2008-2014, Reliable and (non‐party) RNDC, among Maryland’s largest liquor distributors, conspired with retail liquor stores in Cecil County, Maryland and New York City to smuggle liquor from Maryland to New York, in violation of New York liquor law. Empire sued Reliable and several Cecil County and New York retailers under the Racketeer Influenced and Corrupt Organizations Act (RICO), 18 U.S.C. 1961, alleging that their bootlegging directly harmed Empire “because every case of alcohol smuggled into New York from Maryland was a lost sale by New York’s authorized distributors.” The defendants argued that the smuggling operation did not directly cause Empire to lose sales and that Empire had not adequately alleged proximate cause under RICO. The district court dismissed the case. The Second Circuit affirmed. Empire failed to allege proximate cause adequately. Empire adequately alleged a smuggling scheme, satisfying the first element of wire fraud and satisfied the third element of wire fraud, alleging “dozens of specific wire communications allegedly made by defendants.” The Supreme Court, however, has suggested the need for skepticism “to claims brought by economic competitors” and New York State was a more direct victim of the smuggling operation. View "Empire Merchants, LLC v. Reliable Churchill, LLLP" on Justia Law

Plaintiffs filed a derivative action under Section 16(b) of the Securities Exchange Act of 1934 against Perceptive, seeking to require the company to disgorge profits from writing call options on shares of Repros that later expired. The Second Circuit affirmed the district court's grant of Perceptive's motion to dismiss the complaint, holding that, under the plain text of 17 C.F.R. 240.16b6(d) and the congressional purpose of Section 16(b), the statement that liability attaches "upon the cancellation or expiration of [the] option" to mean that there could be liability only if Perceptive owned more than 10 percent of Repros shares at the moment when the calls actually expired. In this case, because the puts were exercised—resulting in Perceptive's sale of most of its Repros shares—prior to the expiration of the calls, the expiration of the calls did not trigger liability. View "Olagues v. Perceptive Advisors LLC" on Justia Law

The Second Circuit affirmed defendant's conviction under the Biological Weapons Anti-Terrorism Act of 1989 and related statutes for ordering the lethal toxin ricin over the internet for the stated purpose of facilitating murder. The court held that defendant did not stand convicted of purely local conduct so as to require construction of the Act according to principles of federalism. The court also held that defendant's conduct fell within the Act even when construed according to principles of federalism. In this case, defendant's conduct -- attempting to acquire ricin over the internet and using a false identity to have the Postal Service deliver the toxin to him -- manifests no purely local crime as in Bond v. United States, but conduct of primarily federal concern. Furthermore, Congress's enactment of the Act fell within its Commerce Clause authority and defendant's constitutional challenges failed. Finally, the court declined to review defendant's ineffective assistance claim in this appeal. View "United States v. Le" on Justia Law

The Second Circuit affirmed defendant's conviction and sentence for conspiracy to distribute or possess with intent to distribute heroin, oxycodone, and cocaine, and distributing and possessing with intent to distribute 500 grams or more of cocaine. The court held that the police officer conducting the traffic stop had reasonable suspicion to extend the stop when defendant and the driver appeared nervous and were unable to provide information about where they were coming from; the stop did not ripen into a de facto arrest because the police officer used reasonable methods and intrusions to confirm or dispel his suspicions; and, although certain evidence was improperly seized during a frisk, the physical evidence would have inevitably been discovered and thus suppression was not warranted. The court also held that accompanying statements should have been suppressed but the error was harmless. The court found no merit in defendant's remaining challenges. View "United States v. Santillan" on Justia Law

The Foreign Corrupt Practices Act (FCPA) defines precisely the categories of persons who may be charged for violating its provisions and states clearly the extent of its extraterritorial application. In this case, the Second Circuit held that the FCPA's carefully-drawn limitations did not comport with the government's use of the complicity or conspiracy statutes. Therefore, the court affirmed the district court's decision to bar the government from bringing the charge at issue. The court reversed the district court's holding on the Second Object of the Conspiracy because the government's intention to prove that defendant was an agent of a domestic concern placed him squarely within the terms of the statute and took the provision outside the court's analysis on the other counts. View "United States v. Hoskins" on Justia Law

The Second Circuit denied a petition for review of the Board's finding that HealthBridge engaged in a number of unfair labor practices in violation of the National Labor Relations Act. The court held that sound legal reasoning and substantial evidence supported the Board's determination that HealthBridge violated the Act by temporarily requiring housekeeping workers to work under a subcontractor only to rehire them as new employees following their termination by the subcontractor--thereby divesting them of seniority and related benefits accrued under the CBAs. In this case, the obligations that HealthBridge attempted to shed remained binding, and no reasonable reading of those obligations permitted HealthBridge to eliminate the seniority-based entitlements of its housekeeping workers as it did.Furthermore, the Board was correct in finding that HealthBridge committed two additional NLRA violations for failing to rehire two employees when every other housekeeping worker who sought continued employment with the company was returned to its payroll, and for threatening to call the police on workers who would not either immediately vacate the premises or accede to the unlawful elimination of their bargained-for seniority. The court also affirmed the Board's finding that HealthBridge violated the Act when it discontinued two of its policies without attempting to bargain. View "HealthBridge Management, LLC v. NLRB" on Justia Law

Miller and Jenkins entered into a civil union in Vermont in 2000. In 2002, Miller gave birth to IMJ. Miller took IMJ to Virginia. Jenkins remained in Vermont. In 2003, a Vermont court dissolved the union and awarded custody to Miller. Miller repeatedly refused to respect Jenkins’ visitation rights. Following several contempt citations, the Vermont court awarded sole custody to Jenkins in 2009. While the litigation was pending, Miller kidnapped IMJ, fleeing to Nicaragua. The government issued subpoenas under the Stored Communications Act 18 U.S.C. 2703(c)(2), rather than a court‐approved warrant, to a cell phone company, seeking billing records spanning 28 months and other information. As confirmed by Zodhiates’ cell phone and email records, which were introduced at trial, Zodhiates drove Miller and IMJ from Virginia to Buffalo, where they crossed into Ontario. Miller remains a fugitive. Zodhiates coordinated delivery of Miller's personal items to Nicaragua. Zodhiates was convicted of conspiring with and aiding and abetting Miller to obstruct the lawful exercise of parental rights, International Parental Kidnapping Crime Act, 18 U.S.C. 371, 1204, and 2. The district court declined to suppress inculpatory location information garnered from his cell phone records. The Second Circuit affirmed, rejecting arguments under the Fourth Amendment and that the charge to the jury, referring to Vermont family law, denied Zodhiates a fair trial. The court noted that in 2011 a warrant was not required for cell records so the government acted in good faith. View "United States v. Zodhiates" on Justia Law

The Army took photographs of detainees at military detention facilities in Afghanistan and Iraq after September 11, 2001. The ACLU sought records related to the treatment of detainees with a Freedom of Information Act (FOIA) request submitted to the Department of Defense (DoD) and filed suit in 2004, after receiving no response. The district court ordered the government to produce or identify all responsive documents and ordered the release of the photographs with redactions, rejecting arguments that the photographs could be withheld under three FOIA exemptions. A third party released the photographs without authorization. During the pendency of an appeal, the government identified additional photographs potentially responsive to the FOIA request and attempted to withhold them under the same three exemptions. The district court again rejected these arguments. The Second Circuit reversed, in favor of DoD. The Protected National Security Documents Act of 2009 (PNSDA), 123 Stat. 2142, permits the government to withhold disclosure of any photograph “taken during the period beginning on September 11, 2001, through January 22, 2009.” Regardless of whether PNSDA is an exemption under FOIA, the Secretary of Defense’s certification, following an extensive, multi-step review process including recommendations of several senior U.S. military commanders, and the information provided by the DoD, satisfied PNSDA. View "American Civil Liberties Union v. United States Department of Defense" on Justia Law

Paysys Atos non‐exclusive rights to use Paysys software and to grant licenses for that software within a specified territory. The agreement provided that in litigation with respect to a territorial violation, the prevailing party would be entitled to an award of its reasonable attorneys’ fees. Paysys sued Atos for breach, alleging multiple violations of those territorial restrictions. Three years later, 12 of Paysys’s 13 claims had been dismissed. Paysys sought a dismissal with prejudice of its remaining breach of contract claim, offering to provide Atos a perpetual, global software license. Atos asserted that it would consent if the court recognized Atos as the “prevailing party.” Paysys argued that if such a condition were imposed, it should be entitled to withdraw its motion. The district court granted Paysys’s motion on the condition that it pay Atos’s attorney’s fees, finding that Atos had succeeded in getting most of Paysys’s claims dismissed. The court held that Paysys was not entitled to withdraw its motion because the fee‐shifting obligation was a contractual one. The Second Circuit vacated. Paysys was entitled to an opportunity to withdraw its motion rather than acquiesce to the court’s terms. When a plaintiff files a motion for dismissal under Rule 41(a)(2), it takes on the risk is that its motion will be denied, not that the motion will carry additional consequences to which the plaintiff does not consent. View "Paysys International, Inc. v. Atos IT Servs. Ltd." on Justia Law