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CIVIL PROCEDURE, ETHICS & PROFESSIONAL RESPONSIBILITY, PROFESSIONAL MALPRACTICE Tydings v. Greenfield, Stein & Senior, LLP, No. 154 In a legal malpractice action by the former trustee of a grantor trust against the law firm that represented her in a proceeding to compel an accounting, reversal of dismissal on collateral estoppel grounds is affirmed where: 1) collateral estoppel does not prevent relitigation of a ruling that was an alternative basis for a trial-level decision, where an appellate court affirmed the decision without addressing that ruling; and 2) when a trustee resigns, the statute of limitations governing an action to compel her to account runs from the date the trusteeship is turned over to a successor trustee.

CIVIL PROCEDURE, GOVERNMENT LAW, PER CURIAM In the Matter of City of Elmira v. Doe, No. 142 In a civil proceeding to vacate a sealing order, appellate court order is affirmed where some of the sealed records were not official records subject to a CPL 160.50 seal.

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CRIMINAL LAW & PROCEDURE, EVIDENCE, SENTENCING US v. DeFilippo, No. 071618 Conviction and sentence for conspiring to racketeer, illegal gambling, and conspiring to collect credit through extortionate means is affirmed where: 1) though lower court erred in admitting certain testimony by a witness and his sentencing challenges, the error was harmless; 2) the district court appropriately considered murder to be relevant conduct under the Guidelines; 3) there was no support for defendant’s assertion that incarceration created a rebuttable presumption of withdrawal from a conspiracy; and 4) the district court did not abuse its discretion by resolving the dispute over attorney’s fees without a hearing.

CRIMINAL LAW & PROCEDURE, EVIDENCE US v. Luna, No. 073018 Judgment of acquittal notwithstanding the verdict for a cocaine-distribution conspiracy is reversed and remanded where there was sufficient evidence to support the jury’s determination that the defendant not only had a buyer-seller relationship with the head of the conspiracy but also knowingly and intentionally joined in and participated in the conspiracy. .

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U.S. 1st Circuit Court of Appeals, October 15, 2008 Batterman v. Leahy, No. 072653 In a claim for attorneys fees, the district court’s administrative closure of the case on grounds of Pullman abstention is vacated and remanded where: 1) the Pullman abstention did not apply in this case; 2) there was no right under state law, property or otherwise, for attorney-plaintiff to be paid more than the cap on billable hours and so no federal constitutional issue is presented by defendants’ refusal to do so; 3) there was no ambiguity with respect to state law that required clarification; and 4) no single abstention doctrine, or probably any combination of them, would justify abstention for all of the counts.

U.S. 2nd Circuit Court of Appeals, October 17, 2008 Diaz v. Paterson , No. 052685, 063942, 063992 In a putative class action challenging the constitutionality of state civil procedure law, which allows a plaintiff who brings a lawsuit claiming interest in real property to file a lis pendens with respect to the property, is affirmed where the state’s lis pendens law as applied to plaintiffs did not offend the Constitution as construed by Connecticut v. Doehr, 501 U.S. 1 (1991).

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U.S. Supreme Court, October 14, 2008 Moore v. U.S., No. 07-10689 Sentence for possession of cocaine base with intent to distribute is reversed and the case remanded where the district court’s statements during sentencing showed that it did not think it had the discretion, which was later upheld by the Supreme Court in Kimbrough v. U.S., to reject the Guidelines’ crack-to-powder cocaine sentencing ratio. .

U.S. 2nd Circuit Court of Appeals, October 14, 2008 In re Vincent Basciano, No. 082157 Writ of mandamus seeking judge’s recusal based on government-furnished evidence suggesting that petitioner had plotted to have judge murdered, is denied where petitioner did not “clearly and indisputably” demonstrate that the district court abused its discretion. .

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Update from the Lexis Alert Service, Search run morning of October 20, 2008:

1. People v. Clarke, 4260, 11467/93, SUPREME COURT OF NEW YORK, APPELLATE DIVISION, FIRST DEPARTMENT, 2008 NY Slip Op 7766; 2008 N.Y. App. Div. LEXIS 7612, October 16, 2008, Decided, October 16, 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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PC World has named its ‘5 Sites That Will Boost Your Political Awareness.’ Included on this list are some very useful Web sites that many of you are probaly familiar with. Here is their list as posted by the American Association of Law Libraries Washington Blawg along with some helpful comments.:

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U.S. 2nd Circuit Court of Appeals, October 08, 2008 Hartline v. Gallo, No. 065309 In claim for unconstitutional strip search in the absence of individualized suspicion that she was secreting contraband, grant of summary judgment in favor of defendants is vacated in part, affirmed in part, and remanded where: 1) defendant’s evidence demonstrated a violation of her Fourth Amendment right; 2) defendant was subjected to a strip search by the police, pursuant to departmental policy, in the absence of individualized suspicion that she was secreting contraband on her person; and 3) the district court erred in holding that defendant waived the alternative basis for her section 1983 claim, namely, that the officers violated her Fourth Amendment rights by telecasting her strip search through the 20 police station.

U.S. 6th Circuit Court of Appeals, October 07, 2008 M.A.L. v. Kinsland, No. 07-1409 In an action involving the constitutionality of a public middle school’s regulation of a student’s leafleting, entry of a permanent injunction against the school and an award of nominal damages is reversed where: 1) the school hallways constituted a nonpublic forum; 2) the restrictions were reasonable and were not overbroad; 3) the heightened Tinker standard did not apply to the school’s viewpoint-neutral time, place, and manner restrictions on speech, which were designed to prevent hallway clutter and congestion; and 4) the award could not stand without a constitutional violation.

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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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