Articles Posted in Court Decisions

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August 24 – 28, 2009.

To view the full-text of cases you must sign in to FindLaw.com. All summaries are produced by Findlaw.

U.S. 1st Circuit Court of Appeals, August 24, 2009 US v. Padilla-Colon, No. 07-2372 Conviction of defendant for possession of drugs with intent to distribute is affirmed where, although defendant’s waiver of appeal was invalid, there was no error in the district court finding that defendant did not qualify for the safety valve provision of 18 U.S.C. section 3553(f), based on a reasoned assessment of the defendant’s credibility in light of the facts on record.

U.S. 1st Circuit Court of Appeals, August 24, 2009 Crawford v. Clarke, No. 08-2100 In an action brought by Muslim inmates in the custody of the Massachusetts Department of Corrections (DOC) alleging the Commissioner violated their right to freely exercise their religion, grant of an injunction in favor of inmates is affirmed where the district court did not abuse its decision in denying Commissioner’s motion for reconsideration as the Commissioner sought to introduce evidence that could have been introduced at trial but chose not to.

U.S. 1st Circuit Court of Appeals, August 26, 2009 US v. Calderon, No. 05-2650 District court’s sentence and conviction of defendants for conspiring to possess drugs with the intent to distribute is affirmed where: 1) under the totality of the circumstances, the existence of common purpose, distribution of drugs, interdependence of various elements in the overall plan, and overlap among defendants, a reasonable jury could have convicted each of the defendants of the single conspiracy charge; 2) district court did not err in allowing a witness to testify as the defendant had not preserved a delayed disclosures claim; 3) court did abuse its discretion in admitting evidence of a firearm as it was clearly a relevant evidence and Rule 403 balancing did not weigh in favor of exclusion; 4) district court did not abuse its discretion in ruling that murder evidence was relevant, and even were the circuit court to conclude that the district court erred in admitting the evidence, the error would not be clear or obvious; 5) district court did not err in severing! defendant’s trial from his codefendants as he did not file a severance motion before trial; and 6) district court did not err in determining the drug quantity findings in sentencing the defendants under the sentencing Guidelines Continue reading

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Update from the Lexis Alert Service,

August 19, 2009
1. People v. Olivo, 880, SUPREME COURT OF NEW YORK, APPELLATE DIVISION, FIRST DEPARTMENT, 2009 NY Slip Op 5194; 63 A.D.3d 576; 881 N.Y.S.2d 359; 2009 N.Y. App. Div. LEXIS 5037, June 23, 2009, Decided, June 23, 2009, Entered, THE LEXIS PAGINATION OF THIS DOCUMENT IS SUBJECT TO CHANGE PENDING RELEASE OF THE FINAL PUBLISHED VERSION., THIS OPINION IS UNCORRECTED AND SUBJECT TO REVISION BEFORE PUBLICATION IN THE OFFICIAL REPORTS.
The People of the State …
… appellant from a judgment of the Supreme Court, New York County (Laura Ward, J.), …

2. People v. Gomez, 892, SUPREME COURT OF NEW YORK, APPELLATE DIVISION, FIRST DEPARTMENT, 2009 NY Slip Op 5169; 63 A.D.3d 558; 881 N.Y.S.2d 359; 2009 N.Y. App. Div. LEXIS 5036, June 23, 2009, Decided, June 23, 2009, Entered, THE LEXIS PAGINATION OF THIS DOCUMENT IS SUBJECT TO CHANGE PENDING RELEASE OF THE FINAL PUBLISHED VERSION., THIS OPINION IS UNCORRECTED AND SUBJECT TO REVISION BEFORE PUBLICATION IN THE OFFICIAL REPORTS.
The People of the State …
… appellant from a judgment of the Supreme Court, New York County (William A. Wetzel, …

3. People v. Disla, 864, SUPREME COURT OF NEW YORK, APPELLATE DIVISION, FIRST DEPARTMENT, 2009 NY Slip Op 5182; 63 A.D.3d 566; 881 N.Y.S.2d 359; 2009 N.Y. App. Div. LEXIS 5062, June 23, 2009, Decided, June 23, 2009, Entered, THE LEXIS PAGINATION OF THIS DOCUMENT IS SUBJECT TO CHANGE PENDING RELEASE OF THE FINAL PUBLISHED VERSION., THIS OPINION IS UNCORRECTED AND SUBJECT TO REVISION BEFORE PUBLICATION IN THE OFFICIAL REPORTS.
The People of the State …
… appellant from a judgment of the Supreme Court, New York County (James Yates, J.), …

4. People v. Bustamante, 899, SUPREME COURT OF NEW YORK, APPELLATE DIVISION, FIRST DEPARTMENT, 2009 NY Slip Op 5174; 63 A.D.3d 561; 881 N.Y.S.2d 359; 2009 N.Y. App. Div. LEXIS 5042, June 23, 2009, Decided, June 23, 2009, Entered, THE LEXIS PAGINATION OF THIS DOCUMENT IS SUBJECT TO CHANGE PENDING RELEASE OF THE FINAL PUBLISHED VERSION., THIS OPINION IS UNCORRECTED AND SUBJECT TO REVISION BEFORE PUBLICATION IN THE OFFICIAL REPORTS.
The People of the State …
… appellant from a judgment of the Supreme Court, New York County (Bonnie Wittner, J. …

5. People v. Neary, 902, SUPREME COURT OF NEW YORK, APPELLATE DIVISION, FIRST DEPARTMENT, 2009 NY Slip Op 5177; 63 A.D.3d 563; 881 N.Y.S.2d 359; 2009 N.Y. App. Div. LEXIS 5038, June 23, 2009, Decided, June 23, 2009, Entered, THE LEXIS PAGINATION OF THIS DOCUMENT IS SUBJECT TO CHANGE PENDING RELEASE OF THE FINAL PUBLISHED VERSION., THIS OPINION IS UNCORRECTED AND SUBJECT TO REVISION BEFORE PUBLICATION IN THE OFFICIAL REPORTS.
The People of the State …
… appellant from a judgment of the Supreme Court, New York County (Carol Berkman, J.), …

6. People v. Rivera, 861, SUPREME COURT OF NEW YORK, APPELLATE DIVISION, FIRST DEPARTMENT, 2009 NY Slip Op 5180; 63 A.D.3d 565; 881 N.Y.S.2d 359; 2009 N.Y. App. Div. LEXIS 5053, June 23, 2009, Decided, June 23, 2009, Entered, THE LEXIS PAGINATION OF THIS DOCUMENT IS SUBJECT TO CHANGE PENDING RELEASE OF THE FINAL PUBLISHED VERSION., THIS OPINION IS UNCORRECTED AND SUBJECT TO REVISION BEFORE PUBLICATION IN THE OFFICIAL REPORTS.
The People of the State …
… appellant from a judgment of the Supreme Court, New York County (Charles Solomon, J.), …

7. People v. Padworski, 893, 7538/89, SUPREME COURT OF NEW YORK, APPELLATE DIVISION, FIRST DEPARTMENT, 2009 NY Slip Op 5170; 63 A.D.3d 558; 880 N.Y.S.2d 486; 2009 N.Y. App. Div. LEXIS 5041, June 23, 2009, Decided, June 23, 2009, Entered, THE LEXIS PAGINATION OF THIS DOCUMENT IS SUBJECT TO CHANGE PENDING RELEASE OF THE FINAL PUBLISHED VERSION., THIS OPINION IS UNCORRECTED AND SUBJECT TO REVISION BEFORE PUBLICATION IN THE OFFICIAL REPORTS.
The People of the State …
Judgment of resentence, Supreme Court, New York County (Carol Berkman, J.), …

8. People v. Hernandez, 874, 6597/05, SUPREME COURT OF NEW YORK, APPELLATE DIVISION, FIRST DEPARTMENT, 2009 NY Slip Op 5188; 63 A.D.3d 571; 880 N.Y.S.2d 489; 2009 N.Y. App. Div. LEXIS 5040, June 23, 2009, Decided, June 23, 2009, Entered, THE LEXIS PAGINATION OF THIS DOCUMENT IS SUBJECT TO CHANGE PENDING RELEASE OF THE FINAL PUBLISHED VERSION., THIS OPINION IS UNCORRECTED AND SUBJECT TO REVISION BEFORE PUBLICATION IN THE OFFICIAL REPORTS.
The People of the State …
Judgment, Supreme Court, New York County (Rena K. Uviller, …

9. People v. McNeil, 885, 832/03, SUPREME COURT OF NEW YORK, APPELLATE DIVISION, FIRST DEPARTMENT, 2009 NY Slip Op 5163; 63 A.D.3d 551; 881 N.Y.S.2d 417; 2009 N.Y. App. Div. LEXIS 5047, June 23, 2009, Decided, June 23, 2009, Entered, THE LEXIS PAGINATION OF THIS DOCUMENT IS SUBJECT TO CHANGE PENDING RELEASE OF THE FINAL PUBLISHED VERSION., THIS OPINION IS UNCORRECTED AND SUBJECT TO REVISION BEFORE PUBLICATION IN THE OFFICIAL REPORTS.
The People of the State …
Judgment, Supreme Court, New York County (William A. Wetzel, …

10. People v. Nelson, 901, 3425/07, SUPREME COURT OF NEW YORK, APPELLATE DIVISION, FIRST DEPARTMENT, 2009 NY Slip Op 5176; 63 A.D.3d 563; 881 N.Y.S.2d 94; 2009 N.Y. App. Div. LEXIS 5048, June 23, 2009, Decided, June 23, 2009, Entered, THE LEXIS PAGINATION OF THIS DOCUMENT IS SUBJECT TO CHANGE PENDING RELEASE OF THE FINAL PUBLISHED VERSION., THIS OPINION IS UNCORRECTED AND SUBJECT TO REVISION BEFORE PUBLICATION IN THE OFFICIAL REPORTS.
The People of the State …
Judgment, Supreme Court, New York County (Lewis Bart Stone, …
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Source: Quinlan Law Enforcement E-News Alert, July 16, 2009.

Warrant to seize computer records

In a case involving a narcotics arrest, the court held that a warrant allowing for the seizure of “computerized records” authorized the investigators serving the warrant to seize the defendant’s computers. The defendant argued that because the warrant did not specifically list “computers” as an item to be seized, the seizure of the computers was outside the scope of the warrant. The court reasoned that anyone with a minimum of computer knowledge would understand that seizing “computer records” would necessitate seizing the actual computers those records were contained within. The court did, however, note that seized computers should not be kept by the government indefinitely after the seizure.

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To view the full-text of cases you must sign in to FindLaw.com. All summaries are produced by Findlaw.

July 20-24. 2009.

U.S. 1st Circuit Court of Appeals, July 22, 2009 US v. Allen, No. 08-1451
Conviction for being a felon in possession of a firearm is affirmed where: 1) the district court did not abuse its discretion in failing to conduct an evidentiary hearing before denying defendant’s motion to suppress as defendant failed to raise a genuine issue of material fact regarding the plain view analysis or the existence of probable cause; 2) the court did not abuse of discretion by finding without an evidentiary hearing that his statements to the police were voluntary, as there was an affidavit and a signed Miranda acknowledgment, and defendant’s assertions were unsupported by any references to specific statements he sought to suppress; and 3) the court did not abuse its discretion in denying defendant’s motion for reconsideration as defendant’s affidavit in support of his motion did not respond to the government’s plain view assertions or specify the alleged Miranda violations. Read more…

U.S. 1st Circuit Court of Appeals, July 23, 2009 US v. Rodriguez-Barrios, No. 07-1854
Conviction for committing a carjacking resulting in death is affirmed where: 1) the court properly denied defendant’s motion for acquittal as the evidence was sufficient for a reasonable jury to conclude that defendant had the intent to kill or seriously harm the victim when he took control of her car; 2) the court did not err in excluding tape recordings of the victim as the recordings did not contradict the victim’s hearsay allegations of abuse; 3) the court did not abuse its discretion in refusing to allow defendant to present expert witness testimony regarding the reliability of eyewitness identification; 4) the court did not abuse its discretion denying defendant’s motion for a mistrial as the brief mention of the possibility of a polygraph examination did not warrant a mistrial; and 5) the court erroneously admitted certain statements made by the victim’s friend and mother, but the error was harmless. Read more..! .

U.S. 1st Circuit Court of Appeals, July 23, 2009 US v. Wallace, No. 07-1884 Sentence for armed robbery and other crimes is affirmed where: 1) the district court properly applied the mandate rule and refused to consider defendant’s objection to sentencing enhancement for obstruction of justice based on his perjury as defendant failed to challenge the enhancement in his first appeal and it became the law of the case; 2) the court properly applied the mandate rule to defendant’s objection to the stolen weapons enhancement; 3) defendant’s claim that his use of a dangerous weapon during the robbery was an improper basis for an upward departure and his claim that court’s decision to depart upwardly based on defendant’s disruption of government functions are both barred by the law of the case doctrine; 4) the court did not err in imposing a two-level increase for extreme psychological injury; 5) the court did not abuse its discretion in imposing an upward departure to his sentencing level based on his criminal history; and 6) defendant’s sentence was reaso! nable Continue reading

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July 20-24. 2009.

U.S. 5th Circuit Court of Appeals, July 21, 2009 Oscar Renda Contracting Inc. v. Lubbock, No. 08-10481 In a 42 U.S.C. section 1983 action claiming that defendant city violated the First Amendment by denying plaintiff a construction contract, summary judgment for defendant is affirmed where not all construction contract disputes involving government entities or agents are matters of public concern.

U.S. 5th Circuit Court of Appeals, July 21, 2009 US v. Whaley, No. 08-10951 Defendant’s conviction for failure to register in accordance with the Sex Offender Registration and Notification Act (SORNA) is affirmed where SORNA does not exceed Congress’s powers under the Commerce Clause because it forbids sex offenders from using the channels of interstate commerce to evade their registration requirements.

U.S. 6th Circuit Court of Appeals, July 22, 2009 Waeschle v. Dragovic, No. 08-2228 In a 42 U.S.C. section 1983 action against a county Medical Examiner for depriving plaintiff of her right to dispose of her deceased mother’s brain (removed in an autopsy and later incinerated as medical waste), denial of defendant’s motion for summary judgment based on qualified immunity is reversed where plaintiff had no clearly established property right in the brain because it was removed and retained for study in furtherance of a lawful criminal investigation Continue reading

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Update from the Lexis Alert Service,

July 24, 2009
1. People v. Bright, 1010, 5732/05, SUPREME COURT OF NEW YORK, APPELLATE DIVISION, FIRST DEPARTMENT, 2009 NY Slip Op 5607; 881 N.Y.S.2d 291; 2009 N.Y. App. Div. LEXIS 5436, July 2, 2009, Decided, July 2, 2009, Entered, THE LEXIS PAGINATION OF THIS DOCUMENT IS SUBJECT TO CHANGE PENDING RELEASE OF THE FINAL PUBLISHED VERSION., THIS OPINION IS UNCORRECTED AND SUBJECT TO REVISION BEFORE PUBLICATION IN THE OFFICIAL REPORTS.
The People of the State …
Judgment, Supreme Court, New York County (Eduardo Padro, J.), …

2. People v. Thomas, 985, 5090/04, SUPREME COURT OF NEW YORK, APPELLATE DIVISION, FIRST DEPARTMENT, 2009 NY Slip Op 5636; 881 N.Y.S.2d 291; 2009 N.Y. App. Div. LEXIS 5417, July 2, 2009, Decided, July 2, 2009, Entered, THE LEXIS PAGINATION OF THIS DOCUMENT IS SUBJECT TO CHANGE PENDING RELEASE OF THE FINAL PUBLISHED VERSION., THIS OPINION IS UNCORRECTED AND SUBJECT TO REVISION BEFORE PUBLICATION IN THE OFFICIAL REPORTS.
The People of the State …
Judgment of resentence, Supreme Court, New York County, (Carol Berkman, J.), …

3. People v. Coronel, 975, 9516/98, SUPREME COURT OF NEW YORK, APPELLATE DIVISION, FIRST DEPARTMENT, 2009 NY Slip Op 5629; 881 N.Y.S.2d 293; 2009 N.Y. App. Div. LEXIS 5414, July 2, 2009, Decided, July 2, 2009, Entered, THE LEXIS PAGINATION OF THIS DOCUMENT IS SUBJECT TO CHANGE PENDING RELEASE OF THE FINAL PUBLISHED VERSION., THIS OPINION IS UNCORRECTED AND SUBJECT TO REVISION BEFORE PUBLICATION IN THE OFFICIAL REPORTS.
The People of the State …
Judgment, Supreme Court, New York County (Michael R. Ambrecht, …

4. People v. Deoleo, 979, SUPREME COURT OF NEW YORK, APPELLATE DIVISION, FIRST DEPARTMENT, 2009 NY Slip Op 5632; 881 N.Y.S.2d 292; 2009 N.Y. App. Div. LEXIS 5468, July 2, 2009, Decided, July 2, 2009, Entered, THE LEXIS PAGINATION OF THIS DOCUMENT IS SUBJECT TO CHANGE PENDING RELEASE OF THE FINAL PUBLISHED VERSION., THIS OPINION IS UNCORRECTED AND SUBJECT TO REVISION BEFORE PUBLICATION IN THE OFFICIAL REPORTS.
The People of the State …
Judgment, Supreme Court, New York County (Laura Ward, J.), …
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Update from the Lexis Alert Service,

July 16, 2009:

1. People v. Ross, 678, 4397/06, SUPREME COURT OF NEW YORK, APPELLATE DIVISION, FIRST DEPARTMENT, 2009 NY Slip Op 4164; 62 A.D.3d 619; 2009 N.Y. App. Div. LEXIS 4042, May 28, 2009, Decided, May 28, 2009, Entered, THE LEXIS PAGINATION OF THIS DOCUMENT IS SUBJECT TO CHANGE PENDING RELEASE OF THE FINAL PUBLISHED VERSION., THIS OPINION IS UNCORRECTED AND SUBJECT TO REVISION BEFORE PUBLICATION IN THE OFFICIAL REPORTS.
The People of the State …
Judgment, Supreme Court, New York County (A. Kirke Bartley, …

2. People v. Boateng, 668, 380/06, 668A, 2434/06, SUPREME COURT OF NEW YORK, APPELLATE DIVISION, FIRST DEPARTMENT, 2009 NY Slip Op 4157; 62 A.D.3d 614; 2009 N.Y. App. Div. LEXIS 4052, May 28, 2009, Decided, May 28, 2009, Entered, THE LEXIS PAGINATION OF THIS DOCUMENT IS SUBJECT TO CHANGE PENDING RELEASE OF THE FINAL PUBLISHED VERSION., THIS OPINION IS UNCORRECTED AND SUBJECT TO REVISION BEFORE PUBLICATION IN THE OFFICIAL REPORTS.
The People of the State …
Judgments, Supreme Court, New York County (Maxwell Wiley, J.), …

3. People v. Glover, 109, 876/04, 110, SUPREME COURT OF NEW YORK, APPELLATE DIVISION, FIRST DEPARTMENT, 2009 NY Slip Op 4168; 62 A.D.3d 626; 2009 N.Y. App. Div. LEXIS 4053, May 28, 2009, Decided, May 28, 2009, Entered, THE LEXIS PAGINATION OF THIS DOCUMENT IS SUBJECT TO CHANGE PENDING RELEASE OF THE FINAL PUBLISHED VERSION., THIS OPINION IS UNCORRECTED AND SUBJECT TO REVISION BEFORE PUBLICATION IN THE OFFICIAL REPORTS.
The People of the State …
Judgment, Supreme Court, New York County (Micki A. Scherer, …

4. People v. Frederick, 663, 6348/03, SUPREME COURT OF NEW YORK, APPELLATE DIVISION, FIRST DEPARTMENT, 2009 NY Slip Op 4155; 62 A.D.3d 612; 2009 N.Y. App. Div. LEXIS 4041, May 28, 2009, Decided, May 28, 2009, Entered, THE LEXIS PAGINATION OF THIS DOCUMENT IS SUBJECT TO CHANGE PENDING RELEASE OF THE FINAL PUBLISHED VERSION., THIS OPINION IS UNCORRECTED AND SUBJECT TO REVISION BEFORE PUBLICATION IN THE OFFICIAL REPORTS.
The People of the State …
Judgment, Supreme Court, New York County (Ronald A. Zweibel, …

5. People v. Manrique, 674, 1575/06, SUPREME COURT OF NEW YORK, APPELLATE DIVISION, FIRST DEPARTMENT, 2009 NY Slip Op 4162; 62 A.D.3d 617; 880 N.Y.S.2d 51; 2009 N.Y. App. Div. LEXIS 4050, May 28, 2009, Decided, May 28, 2009, Entered, THE LEXIS PAGINATION OF THIS DOCUMENT IS SUBJECT TO CHANGE PENDING RELEASE OF THE FINAL PUBLISHED VERSION., THIS OPINION IS UNCORRECTED AND SUBJECT TO REVISION BEFORE PUBLICATION IN THE OFFICIAL REPORTS.
The People of the State …
Judgment, Supreme Court, New York County (Arlene D. Goldberg, …

6. People v. Hogans, 654, 1437/07, SUPREME COURT OF NEW YORK, APPELLATE DIVISION, FIRST DEPARTMENT, 2009 NY Slip Op 4118; 62 A.D.3d 595; 878 N.Y.S.2d 890; 2009 N.Y. App. Div. LEXIS 3988, May 26, 2009, Decided, May 26, 2009, Entered, THE LEXIS PAGINATION OF THIS DOCUMENT IS SUBJECT TO CHANGE PENDING RELEASE OF THE FINAL PUBLISHED VERSION., THIS OPINION IS UNCORRECTED AND SUBJECT TO REVISION BEFORE PUBLICATION IN THE OFFICIAL REPORTS.
The People of the State …
Judgment, Supreme Court, New York County (Lewis Bart Stone, …

7. People v. Nevarez, 630, 630A, 3633/06, 6046/06, SUPREME COURT OF NEW YORK, APPELLATE DIVISION, FIRST DEPARTMENT, 2009 NY Slip Op 4104; 62 A.D.3d 585; 878 N.Y.S.2d 888; 2009 N.Y. App. Div. LEXIS 3992, May 26, 2009, Decided, May 26, 2009, Entered, THE LEXIS PAGINATION OF THIS DOCUMENT IS SUBJECT TO CHANGE PENDING RELEASE OF THE FINAL PUBLISHED VERSION., THIS OPINION IS UNCORRECTED AND SUBJECT TO REVISION BEFORE PUBLICATION IN THE OFFICIAL REPORTS.
The People of the State …
Judgments, Supreme Court, New York County (Edward J. McLaughlin, …
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David Badertscher
Legal experts and prosecutors are quite concerned about possible results of the June 25, 2009 U.S. Supreme Court decision Melendez-Diaz v. Massachusetts 07-591. In this decision the Court has ruled that forensic analysts conducting tests must be in court to testify about their test results and that lab sheets that identify a substance as a narcotic, or breath test printouts describing a suspect’s blood-alcohol level are no longer to be considered as sufficient evidence. A person is now required to be in court to talk about the test results. The basic question the Supreme Court addressed in this opinion was: “Is a state forensic analyst’s laboratory report prepared for use in a criminal prosecution “testimonial” evidence subject to the demands of the Sixth Amendment’s Confrontation Clause as set forth in Crawford v. Washington?”* In its ruling the Supreme Court answered, yes.
_________________________ *The above quote was taken from discussion of this opinion in the U.S. Supreme Court Oyez website at. http://www.oyez.org/cases/2000-2009/2008/2008_07_591 . This site also includes links to the text of the opinion as well at to the Syllabus, dissent, concurrance, and argument. For additional information see discussion in a July 15, 2009 Washington Post article by Tom Jackman, and follow the link on the U.S. Supreme Court website.

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To view the full-text of cases you must sign in to FindLaw.com. All summaries are produced by Findlaw.

July 6-10, 2009.

U.S. 1st Circuit Court of Appeals, July 08, 2009 US v. Meadows, No. 08-1122 Conviction for firearms possession is affirmed where: 1) the district court properly denied defendant’s motion to suppress as the officers acted within the permissible scope of an investigatory stop when they handcuffed defendant and removed him from his sister’s home; 2) the court did not err in its handling of defendant’s status as a felon during trial as defendant was not unfairly prejudiced by any information about his criminal history that came before the jury; 3) the government did not err in the challenged statements it made during its closing summation; and 4) the government did not err in its instructions to the jury.

U.S. 1st Circuit Court of Appeals, July 08, 2009 US v. Bryant , No. 08-1160 Conviction and sentence for drug crimes is affirmed in part and reversed in part where: 1) the district court erred in not requiring the government to show that the presentence report’s description of the prior New York conviction was based on a sufficiently reliable source to establish the accuracy of that description, and thus the government could not have met its burden of establishing the existence of the prior conviction for sentencing enhancement purposes; 2) the court did not err in finding that a certified copy of the record from the Suffolk Superior Court was sufficiently reliable to support the fact of defendant’s Suffolk Superior Court conviction for sentencing enhancement purposes; 3) both of the defendant’s prior convictions, if proven, qualify as a predicate offenses under U.S.S.G. sec. 4B1.2; and 4) the court did not err in considering the two transactions as part of the same course of conduct for purposes of sentencing.

U.S. 2nd Circuit Court of Appeals, July 06, 2009 Pilgrim v. Luther, No. 07-1950 In a prisoner civil rights action, district court’s grant of summary judgment for defendant is affirmed where: 1) plaintiff’s First Amendment retaliation claim fails as a matter of law as entreaties to activity such as petitions protesting prison conditions are not entitled to First Amendment protection where other less disruptive means of airing grievances are available; and 2) plaintiff’s claims that defendant violated his due process rights are without merit as any error on the part of the corrections officer assigned to assisting plaintiff was harmless in light of defendant’s owns failures.
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To view the full-text of cases you must sign in to FindLaw.com. All summaries are produced by Findlaw.

July 6-10. 2009.

U.S. 1st Circuit Court of Appeals, July 08, 2009 McCullen v. Coakley , No. 08-2310
In an action challenging a statute creating a fixed buffer zone around reproductive health care facilities, district court judgment rejecting the facial challenge and refuseing to enjoin enforcement of the new law is affirmed where: 1) there is nothing in the text or the legislative history of the statute that deprives that statute of content-neutral status, and thus an intermediate scrutiny analysis applies; 2) the statute is a valid time-place-manner regulation that advances a significant governmental interest without burdening substantially more speech than necessary and leaves open adequate alternative channels of communication; 3) plaintiffs’ overbreadth argument is without merit as the increased degree of the expansion of the buffer zone in the statute is reasonable, and thus the expansion is not a matter of constitutional significance; and 4) plaintiffs’ vagueness argument fails as plaintiffs want to engage in the anti-abortion protests that are proscribed in the atto! rney general’s challenged guidance letter, and a party to whose conduct a statute clearly applies may not successfully challenge it for vagueness.

U.S. 2nd Circuit Court of Appeals, July 06, 2009 Pilgrim v. Luther, No. 07-1950 In a prisoner civil rights action, district court’s grant of summary judgment for defendant is affirmed where: 1) plaintiff’s First Amendment retaliation claim fails as a matter of law as entreaties to activity such as petitions protesting prison conditions are not entitled to First Amendment protection where other less disruptive means of airing grievances are available; and 2) plaintiff’s claims that defendant violated his due process rights are without merit as any error on the part of the corrections officer assigned to assisting plaintiff was harmless in light of defendant’s owns failures.

U.S. 5th Circuit Court of Appeals, July 10, 2009 Little v. KPMG LLP, No. 08-50100 In an action claiming that Plaintiff accounting firms lost business to Defendant when Defendant’s partner practiced without a Texas accounting license, the dismissal of the action is affirmed, where the alleged injury to Plaintiff was too speculative Continue reading

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