by
The Second Circuit granted a petition for review of the BIA's decision affirming the IJ's order of removal because petitioner had derivative citizenship from his citizen father. The court held that the temporary physical separation caused by petitioner's time in federal pretrial juvenile detention did not strip petitioner's father of his "physical custody" of petitioner as that term is used in 8 U.S.C. 1431(a), and therefore petitioner is a U.S. citizen. The court explained that the statutory context and history of the derivative citizenship statute indicate that the "physical custody" requirement ensures that the legal permanent resident child, such as petitioner, has a strong connection to the naturalizing parent and to the United States at the time the child becomes eligible for derivative citizenship. Furthermore, the applicable canons of statutory interpretation also favored construing the term "physical custody" so that such custody does not terminate upon a brief, temporary separation from a parent; and the distinctive nature of federal pretrial juvenile detention—which encourages continued family involvement with the child during such detention—further supports the conclusion that petitioner's father retained "physical custody" over him. View "Khalid v. Sessions" on Justia Law

Posted in: Immigration Law

by
Defendant, a union local president, appealed his conviction of racketeering conspiracy and Hobbs Act extortion conspiracy for his efforts to force non‐union contractors to hire union members. The Second Circuit reversed the count of conviction for Hobbs Act conspiracy, affirmed the count of conviction for racketeering conspiracy, and remanded for resentencing. The court held that an an Enmons‐like exception did not apply to New York Penal Law extortion; the wages defendant attempted to extort were "property" capable of being extorted; the district court's threat instruction was correct with respect to New York Penal Law extortion; but the Government failed to prove defendant's involvement in the charged Hobbs Act conspiracy. View "United States v. Kirsch" on Justia Law

Posted in: Criminal Law

by
Sports photographers filed suit seeking to recover damages on copyright, contract, and tort theories of liability after the NFL exploited thousands of their photographs without a license and without compensation. The photographers also brought an antitrust challenge alleging that the NFL and AP conspired to restrain trade in the market for commercial licenses of NFL event photographs. The district court dismissed the complaint for failure to state a claim. The Second Circuit held that the photographers' allegations plausibly supported an inference that before the 2012 AP-NFL agreement was signed, AP had not granted the NFL a complimentary license to use the photographers' works, and the NFL knew it. The court vacated the photographers' claims for copyright infringement against AP and the NFL relating to the NFL's use of photographs from 2009 to present; claims for copyright infringement against AP, the NFL, and Replay relating to uses of the photographs in connection with the Replay Photo Store; claims for breach of the implied covenant of good faith and fair dealing against AP; and claims for fraud against AP. The court affirmed in all other respects and remanded for further proceedings. View "Spinelli v. National Football League" on Justia Law

by
The Second Circuit affirmed defendant's conviction for using firearms in the commission of violent crimes. The court held that defendant's argument as to substantive Hobbs Act robbery was defeated by this court's post-Dimaya decision in United States v. Hill, 890 F.3d 51 (2d Cir. 2018), which held that substantive Hobbs Act robbery was a categorical crime of violence under 18 U.S.C. 924(c)(3)(A). Defendant's argument as to conspiratorial Hobbs Act robbery failed for two reasons: first, circuit precedent has long recognized that a conspiracy to commit a crime of violence was itself a crime of violence, and Dimaya/Johnson warranted no different conclusion; and second, in any event, the section 924(c)(3) definitions of a crime of violence applied only to the predicate offense of a crime of pending prosecution, not a crime of prior conviction as in Dimaya and Johnson. View "United States v. Barrett" on Justia Law

Posted in: Criminal Law

by
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

Posted in: Criminal Law

by
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

by
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

Posted in: Securities Law

by
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

Posted in: Criminal Law

by
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

Posted in: Criminal Law

by
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

Posted in: Criminal Law