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   Federal Courts - 2nd Circuit Court of Appeals - November 15, 2007

  
Sindone v. Kelly, No. 06-3230-cv, UNITED STATES COURT OF APPEALS FOR THE SECOND CIRCUIT, November 15, 2007, Decided
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Overview: District court's dismissal of the former police inspector's claim that he did not receive due process during his disciplinary hearing was affirmed because the inspector had an adequate remedy under state law to challenge the proceedings under N.Y. C.P.L.R. art. 78.

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Smith v. N.Y. Presbyterian Hosp., No. 05-6920-cv, UNITED STATES COURT OF APPEALS FOR THE SECOND CIRCUIT, November 15, 2007, Decided
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Overview: Judgment of dismissal of a pro se plaintiff's complaint was vacated and the matter remanded so that plaintiff could replead the complaint because plaintiff should have been given an opportunity to amend her complaint, after a dismissal under 28 U.S.C.S. § 1915, when the first complaint was factually, but not legally, deficient.

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United States v. Mendez, No. 06-2299-cr, UNITED STATES COURT OF APPEALS FOR THE SECOND CIRCUIT, November 15, 2007, Decided
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Overview: District court that observed that defendant's sentence was not unreasonable applied the appropriate legal standards for sentencing because district court respectfully considered USSG range, gave particular attention to 18 U.S.C.S. § 3553 factors cited by defendant, and made independent determination to impose sentence at the low end of USSG range.

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United States v. Rodriguez, No. 05-5778-cr, UNITED STATES COURT OF APPEALS FOR THE SECOND CIRCUIT, November 15, 2007, Decided
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Overview: Conviction was affirmed. In determining criminal history under USSG § 4A1.2(a)(2), district court's rejection of defendant's consolidation argument was not based on lack of formal order, but on specific finding that none of factual predicates required by USSG for relatedness of convictions were present. Such a finding merited substantial deference.

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United States v. Walker, No. 06-2986-cr, UNITED STATES COURT OF APPEALS FOR THE SECOND CIRCUIT, November 15, 2007, Decided
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Overview: Defendant's first count of conviction for bank fraud was not reversed as duplicitous. Fact that multiple banks and executions were involved was apparent in indictment, and district court's failure to give unanimity charge as to specific act that served as basis for the guilty verdict did not by itself cause prejudice sufficient to warrant reversal.

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United States v. Williams, No. 06-3509-cr, UNITED STATES COURT OF APPEALS FOR THE SECOND CIRCUIT, November 15, 2007, Decided
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Overview: Under Fourth Amendment plain view sitting of incriminating evidence rendered seizure of box and its contents from defendant's home reasonable even absent defendant's consent to search. Defendant's voluntary actions in pointing to second box during course of cooperation supported agents' reasonable belief that defendant was consenting to its search.

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Xin Yao Wang v. Mukasey, No. 06-3935-ag, UNITED STATES COURT OF APPEALS FOR THE SECOND CIRCUIT, November 15, 2007, Decided
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Overview: BIA properly denied an untimely motion to reopen because nowhere in an alien's affidavit did he state that his former attorney agreed to file an appeal. Absence of even a conclusory statement in that regard precluded the finding of an agreement or the alien's reasonable reliance thereon, which was essential to the application of equitable estoppel.

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Zhang Zhong v. Keisler, 06-5660-ag NAC, UNITED STATES COURT OF APPEALS FOR THE SECOND CIRCUIT, November 15, 2007, Decided
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Overview: Under 8 U.S.C.S. § 1252, substantial evidence supported the BIA's and an IJ's denial of asylum to a Chinese applicant. Applicant failed to show that he suffered persecution on account of his "other resistance" to China's family planning policy, as refusal to pay fine for his girlfriend's illegal pregnancy did not constitute requisite persecution.

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