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| Ades-Berg Investors v. Breeden (In re Bennett Funding Group, Inc.), Docket No. 05-1141-bk,
UNITED STATES COURT OF APPEALS FOR THE SECOND CIRCUIT, February 24, 2006, Decided
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Overview: Contrary to investors' argument, bankruptcy court's Fed. R. Bankr. P. 9019 order authorizing bankruptcy trustee to enter into settlement agreement was final order, so investors' Fed. R. Bankr. P. 8002 ten-day window to file notice of appeal began to run on that day. District court's judgment determining that appeal notice was untimely was affirmed.
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| Chen v. United States DOJ, No. 04-3062-ag NAC,
UNITED STATES COURT OF APPEALS FOR THE SECOND CIRCUIT, February 24, 2006, Decided
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Overview: Petition for review was granted, BIA's opinion was vacated, and case was remanded. BIA found it implausible that alien's wife, knowing that she was pregnant and that she missed scheduled IUD checkup, would stay at home and "wait" for the authorities to take her away to undergo abortion instead of hiding, but finding was impermissible speculation.
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| Diaoune v. McElroy, No. 04-0757-ag,
UNITED STATES COURT OF APPEALS FOR THE SECOND CIRCUIT, February 24, 2006, Decided
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Overview: BIA's finding that an asylum application was frivolous under 8 U.S.C.S. § 1158(d)(6) was supported by incontrovertible evidence that the alien presented fabricated accounts of his persecution, submitted false documentation to bolster his application, and could not plausibly have reconciled significant inconsistencies in his narrative.
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| Durant, Nichols, Houston, Hodgson & Cortese-Costa, P.C. v. Dupont, 05-2169-cv,
UNITED STATES COURT OF APPEALS FOR THE SECOND CIRCUIT, February 24, 2006, Decided
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Overview: In a very brief order, the court affirmed the denial of a Fed. R. Civ. P. 60(b) motion, which sought relief from a default judgment in an action to compel arbitration; record showed that service of process satisfied New York's requirements for service upon a defendant who refused to accept service, and defendant had not acted with diligence.
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| Jaegly v. Couch, Docket No. 05-2191-cv,
UNITED STATES COURT OF APPEALS FOR THE SECOND CIRCUIT, February 24, 2006, Decided
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Overview: Dismissal of arrestee's § 1983 false arrest claim was affirmed. It was close question whether officer had probable cause to arrest arrestee for first degree criminal contempt, but no reasonable juror could find that officer lacked probable cause to arrest arrestee for second degree harassment, so arrestee's constitutional rights were not violated.
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| Jaegly v. Couch, No. 05-2191-cv,
UNITED STATES COURT OF APPEALS FOR THE SECOND CIRCUIT, February 24, 2006, Decided
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Overview: A police officer had probable cause to file a felony complaint for contempt of a protective order and, thus, was entitled to qualified immunity in a malicious prosecution action because an arrestee's action in taking photographs in front of the victim's home could have been viewed by a reasonable officer as an implicit threat of continued violence.
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| McClellan v. Smith, Docket No. 04-5996-cv,
UNITED STATES COURT OF APPEALS FOR THE SECOND CIRCUIT, February 24, 2006, Decided
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Overview: Summary judgment and order denying reconsideration was vacated and case was remanded. The district court, in dismissing the false arrest, unlawful imprisonment, and unreasonable search and seizure claims, erred in applying what it considered to be an unrebutted presumption of probable cause arising from the grand jury's indictment of the arrestee.
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| Tusino v. Int'l Bhd. of Teamsters, 04-6488-cv,
UNITED STATES COURT OF APPEALS FOR THE SECOND CIRCUIT, February 24, 2006, Decided
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Overview: Where a former officer was awarded recovery from a union for engaging in a scheme to suppress dissent in violation of the Labor Management Reporting and Disclosure Act, 29 U.S.C.S. §§ 411(a) and 412(a), a prejudgment interest award was vacated and remanded to assure that the officer was only compensated for loss of use of his monetary damages.
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| United States v. Hartery, No. 05-4277-cr,
UNITED STATES COURT OF APPEALS FOR THE SECOND CIRCUIT, February 24, 2006, Decided
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Overview: Even if confidential informant's statements and taxidermy shop owner's testimony were insufficient to provide probable cause to support the issuance of a disputed search warrant, the evidence was admissible under Fourth Amendment because the police relied in good faith on a facially valid warrant issued by a neutral and detached judicial officer.
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| United States v. Schlisser, No. 04-6501-CR,
UNITED STATES COURT OF APPEALS FOR THE SECOND CIRCUIT, February 24, 2006, Decided
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Overview: A sentence imposed for convictions of securities fraud and wire fraud did not violate defendant's Sixth Amendment rights because, in imposing the sentence, the district court clearly treated the U.S. Sentencing Guidelines as advisory, rather than as mandatory, and it expressly considered the sentencing factors set forth under 18 U.S.C.S. § 3553(a).
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