Articles Posted in Court Decisions

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U.S. 1st Circuit Court of Appeals, October 08, 2008 US v. Jackson, No. 072510 Conviction for being a felon in possession of a firearm is vacated and remanded where defendant was subjected to custodial interrogation before being given his Miranda warnings.

U.S. 1st Circuit Court of Appeals, October 08, 2008 US v. Vasquez, No. 072796 Conviction for drug and gun offenses is affirmed over claims of error that: 1) the district court should have suppressed his statements acknowledging that the drugs were his, his admission that he possessed the gun and the gun itself; and 2) the evidence was insufficient to show that the gun defendant surrendered at his arrest was carried during and in relation to a drug trafficking crime. .

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CRIMINAL LAW & PROCEDURE, EVIDENCE, SENTENCING US v. DeFilippo, No. 071618 Conviction and sentence for conspiracy to racketeer, illegal gambling, and conspiracy to collect credit through extortionate means are affirmed over claims of error that: 1) the district court erred when it admitted testimony from a high-ranking member of the Bonanno Crime Family; 2) the murder of George Sciascia was not relevant conduct because it was not related to a conspiratorial object of which defendant was convicted; 3) the Government failed to rebut an alleged presumption that a person withdraws from a conspiracy when he is arrested; and 4) the district court erred in refusing to hold a hearing on that issue. .

IMMIGRATION LAW Shao v. Mukasey, No. 072689 In an immigration matter brought by Chinese nationals who asserted a fear of future persecution, specifically, forced sterilization, if removed to China based on their having fathered or given birth to more than one child, petitions for review of decision of Board of Immigration Appeals (BIA) denying relief from removal are denied where: 1) there was no legal error in the evidentiary framework employed; and 2) because substantial evidence supported the BIA’s findings that each of the petitioners failed to demonstrate that his or her stated fears of persecution on return to China were objectively reasonable.

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ADMINISTRATIVE LAW, AEROSPACE & DEFENSE, LABOR & EMPLOYMENT LAW, MILITARY LAW Dibble v. Fenimore, No. 063307

In an action for administrative relief brought by plaintiff-state National Guard service technician who was denied reenlistment, grant of summary judgment in favor of defendant-Secretary of the Air Force is affirmed where: 1) the doctrine of intramilitary immunity does not preclude a federal court from reviewing a challenge under the Administrative Procedure Act to a decision by the Air Force Board for the Correction of Military Records; and 2) the district court correctly found that the Board’s decision was not arbitrary, capricious, contrary to law, or unsupported by substantial evidence.

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Update from the Lexis Alert Service, Search run morning of October 9, 2008:

1. People v. Calderon, 4198, 009/05, SUPREME COURT OF NEW YORK, APPELLATE DIVISION, FIRST DEPARTMENT, 2008 NY Slip Op 7559; 2008 N.Y. App. Div. LEXIS 7404, October 7, 2008, Decided, October 7, 2008, 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 …

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Update from the Lexis Alert Service, Search run morning of October 6, 2008:

1. People v. Pearson, 5161/04, SUPREME COURT OF NEW YORK, APPELLATE DIVISION, FIRST DEPARTMENT, 2008 NY Slip Op 7193; 2008 N.Y. App. Div. LEXIS 7025, October 2, 2008, Decided, October 2, 2008, 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.

4170 The People of the State …

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Update from the Lexis Alert Service, Search run morning of October 2, 2008:

1. People v. Peralta, 4143, 514/07, SUPREME COURT OF NEW YORK, APPELLATE DIVISION, FIRST DEPARTMENT, 2008 NY Slip Op 7170; 2008 N.Y. App. Div. LEXIS 7008, September 30, 2008, Decided, 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 …

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U.S. 1st Circuit Court of Appeals, September 23, 2008 Welch v. Campia, No. 072470 In a lawsuit filed against the Chief of Police and the Town on the grounds that defendants impermissibly retaliated against plaintiff for exercising his First Amendment rights, grant of summary judgment in favor of defendants is reversed in part and affirmed in part where: 1) plaintiff’s non-reappointment constituted an adverse employment action sufficient to support a section 1983 claim; 2) district court properly granted summary judgment in favor of co-defendants because defendant was the only one with the appointment authority; 3) plaintiff failed to explain how defendants’ actions resulted in unreasonably inferior work conditions; 4) defendants’ argument that plaintiff’s First Amendment claim failed; 5) the district court erred in placing the burden on plaintiff to show that the reasons articulated by defendant were pretextual; 6) liability can be imposed for defendant’s decision not to reappoint plaintiff; 7) plaintiff’s whistleblower claims survived since there was a q! uestion as to whether he was not reappointed because of his involvement in the grand jury investigation; and 8) district court erred in concluding that plaintiff could not maintain an action for interference with advantageous relations.

U.S. 1st Circuit Court of Appeals, September 24, 2008 Thomas v. State of Rhode Island, No. 071985 In a suit brought by members of an Indian tribe claiming that state officials violated their constitutional rights by arresting them without lawful authority on tribal lands for alleged cigarette tax violations, dismissal of action for failure to state a claim is affirmed over claims of error that: 1) the court construed their allegations too narrowly, thereby ignoring a viable Fourth Amendment claim based on the lack of probable cause for arrest; and 2) the court wrongly denied their request to amend the complaint, thereby denying them the opportunity to remedy any tax deficiencies.

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arch Update from the Lexis Alert Service, Search run morning of September 29, 2008:

1. People v. Kerins, 4121, 6352/05, SUPREME COURT OF NEW YORK, APPELLATE DIVISION, FIRST DEPARTMENT, 2008 NY Slip Op 7069; 2008 N.Y. App. Div. LEXIS 6910, September 25, 2008, Decided, 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 …

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