url
stringlengths 56
59
| text
stringlengths 3
913k
| downloaded_timestamp
stringclasses 1
value | created_timestamp
stringlengths 10
10
|
|---|---|---|---|
https://www.courtlistener.com/api/rest/v3/opinions/8473288/
|
ON MOTION
ORDER
Paul N. Nelson moves to dismiss his appeal, no. 2009-1243. K2 Inc. et al. (K2) consent to the dismissal and request clarification of the briefing schedule and requirements for the remaining appeal.
Because there is no longer a cross appeal in this case, the parties should comply *537with the normal brief timelines and requirements for appeals. Thus, the cover of K2’s principal brief shall be blue; the cover of Nelson’s brief shall be red; and the cover of K2’s reply brief shall be gray. See Fed. R.App. P. 32(a)(2). The parties should use the revised caption for 2009-1361, set forth above, on the briefs.
Upon consideration thereof,
IT IS ORDERED THAT:
(1) The motion to dismiss appeal no. 2009-1243 is granted.
(2) Each side shall bear its own costs for 2009-1243.
(3) K2’s principal brief in 2009-1361 is due no later than September 11, 2009. The parties should calculate the remaining due dates in accordance with Fed. Cir. R. 31.
(4) The revised official caption for 2009-1361 is reflected above.
|
01-04-2023
|
11-05-2022
|
https://www.courtlistener.com/api/rest/v3/opinions/8473296/
|
ON MOTION
ORDER
Marco Faraoni moves to voluntarily dismiss his petition for review.
Upon consideration thereof,
IT IS ORDERED THAT:
(1) The motion is granted.
(2) Each side shall bear its own costs.
|
01-04-2023
|
11-05-2022
|
https://www.courtlistener.com/api/rest/v3/opinions/8473299/
|
JUDGMENT
PER CURIAM.
This appeal was considered on the record from the United States District Court for the District of Columbia and on the brief and supplements thereto filed by appellant. See Fed. R.App. P. 34(a)(2); D.C.Cir. Rule 34(j). It is
ORDERED AND ADJUDGED that the district court’s order filed February 10, 2009, 2009 WL 331363, be affirmed. The district court properly dismissed the complaint as to the D.C. Superior Court judge who presided over appellant’s criminal trial, because the judge is absolutely immune from liability for damages for acts taken in his official capacity. See Atherton v. District of Columbia Office of Mayor, 567 F.3d 672, 682-83 (D.C.Cir.2009) (and cases cited therein). To the extent appellant complained about and sought damages regarding the fact of his confinement, the court properly dismissed as well. See Heck v. Humphrey, 512 U.S. 477, 114 S.Ct. 2364, 129 L.Ed.2d 383 (1994) (criminal defendant may not recover damages under section 1983 for harm caused by actions whose unlawfulness would render conviction or sentence invalid unless conviction or sentence has been invalidated in another proceeding). We also affirm the dismissal of the section 1983 claims against the District of Columbia; a municipality is liable for constitutional torts arising out of official municipal policy, but is not liable under principles of respondeat superior. See Atherton, 567 F.3d at 691.
Pursuant to D.C. Circuit Rule 36, this disposition will not be published. The Clerk is directed to withhold issuance of the mandate herein until seven days after resolution of any timely petition for rehearing or petition for rehearing en banc. *550See Fed. R.App. P. 41(b); D.C.Cir. Rule 41.
|
01-04-2023
|
11-05-2022
|
https://www.courtlistener.com/api/rest/v3/opinions/8473302/
|
SUMMARY ORDER
Petitioner Shi Yong Fang, a native and citizen of the People’s Republic of China, seeks review of a September 19, 2008 order of the BIA denying his motion to reopen. In re Shi Yong Fang, No. A073 569 259 (B.I.A. Sept. 19, 2008). We assume the parties’ familiarity with the underlying facts and procedural history in this case.
We review the BIA’s denial of a motion to reopen for abuse of discretion. See Ke Zhen Zhao v. U.S. Dep’t of Justice, 265 *557F.3d 83, 90 (2d Cir.2001). A motion to reopen must be filed no later than 90 days after the final administrative decision is rendered in the proceedings that the applicant seeks to reopen. 8 U.S.C. § 1229a(c)(7); 8 C.F.R. § 1003.2(c)(2). In this case, there is no question that Fang’s motion to reopen was untimely. However, when a movant raises a claim of ineffective assistance of counsel, the filing deadline may, under certain conditions, be equitably tolled. See Jin Bo Zhao v. INS, 452 F.3d 154, 156-59 (2d Cir.2006). To merit equitable tolling, the movant must establish, among other things, that he exercised due diligence during the time period he seeks to toll. See Jian Hua Wang v. BIA, 508 F.3d 710, 714 (2d Cir.2007).
In this case, Fang did not file a disciplinary complaint against his former counsel until April 2008, almost twelve years after his former counsel’s alleged failure to inform him of the date of his rescheduled hearing. In the absence of any explanation from Fang for this extensive delay, the BIA did not err in concluding that Fang failed to exercise the due diligence required to merit equitable tolling. See id.
In addition, the BIA did not err in finding that Fang failed to present evidence of changed country conditions in China that would warrant an exception to the filing deadline for his motion to reopen. 8 U.S.C. § 1229a(c) (7) (C) (ii); 8 C.F.R. § 1003.2(e)(3)(ii). The bulk of the evidence that Fang submitted with his motion — including his marriage certificate, his child’s birth certificate, and two abortion certificates — pre-dated not only the BIA’s final administrative decision but also Fang’s arrival in the United States in 1994. None of this evidence qualifies as material evidence that was not available and could not have been discovered or presented during the underlying deportation proceedings. 8 C.F.R. § 1003.2(c)(1).
Although some of the country conditions evidence that Fang submitted indicated that the enforcement of the family planning policy in certain localities in China sometimes involved coercive practices, none of these described recent changes in the policy or its enforcement that would materially affect Fang’s eligibility for relief. Instead, these documents described long-standing, continuing practices dating back to the years prior to Fang’s departure from China. Accordingly, the BIA reasonably concluded that Fang did not merit an exemption from the time limit for filing a motion to reopen. See 8 U.S.C. § 1229a(c) (7) (C) (ii); 8 C.F.R. § 1003.2(c)(3)(ii).
Finally, Fang argues that the BIA erred by failing to consider and analyze the documentary evidence that he submitted. However, the BIA had no obligation to address the merits of Fang’s untimely motion given his failure to make the threshold showing that conditions in China had changed such that an exemption from the filing deadline was warranted. See 8 C.F.R. § 1003.2(e)(3)(ii).
For the foregoing reasons, the petition for review is DENIED. As we have completed our review, any stay of removal that the Court previously granted in this petition is VACATED, and any pending motion for a stay of removal in this petition is DISMISSED as moot. Any pending request for oral argument in this petition is DENIED in accordance with Federal Rule of Appellate Procedure 34(a)(2), and Second Circuit Local Rule 34(b).
|
01-04-2023
|
11-05-2022
|
https://www.courtlistener.com/api/rest/v3/opinions/8473304/
|
SUMMARY ORDER
Petitioners Ljindita Vuljaj and Nikola Vuljaj, both natives of Montenegro and citizens of the former Yugoslavia, seek review of an October 30, 2008 order of the BIA denying their motion to reopen. In re Ljindita Vuljaj, Nikola Vuljaj, Nos. A072 413 523, A029 445 544 (B.I.A. Oct. 30, *5592008). We assume the parties’ familiarity with the underlying facts and procedural history in this case.
We review the BIA’s denial of a motion to reopen for abuse of discretion. See Ke Zhen Zhao v. U.S. Dep’t of Justice, 265 F.3d 83, 90 (2d Cir.2001). A motion to reopen must be filed no later than 90 days after the final administrative decision is rendered in the proceedings that the applicant seeks to reopen. 8 U.S.C. § 1229a(c)(7); 8 C.F.R. § 1003.2(c)(2). There is no dispute that the petitioners’ motion was untimely. However, the petitioners argue that they presented evidence of changed country conditions in Serbia-Montenegro that both warranted an exception to the filing deadline for their motion, 8 U.S.C. § 1229a (c)(7)(C)(ii); 8 C.F.R. § 1003.2(c)(3)(ii), and established their prima facie eligibility for asylum and withholding of removal.
Because the BIA did not err in finding that the petitioners failed to establish a ptima facie case for relief, it did not abuse its discretion in denying their motion to reopen. See Ke Zhen Zhao, 265 F.3d at 93. In support of their motion, the petitioners submitted voluminous background materials concerning a September 2006 law enforcement operation known as “Eagle’s Flight” in which Montenegrin authorities arrested eighteen ethnic Albanian Catholics on terrorism charges. However, even assuming the circumstances surrounding the “Eagle’s Flight” incident constituted a change in country conditions in Montenegro with respect to the treatment of ethnic Albanian Catholics, petitioners failed to establish that they had a well-founded fear of persecution as a result.
The petitioners submitted a number of affidavits from friends and associates who claimed that the petitioners would face persecution in Montenegro because Nikola was related to one of the individuals arrested during Eagle’s Flight and he had participated in protests against the Montenegrin authorities in the United States and donated generously to charitable funds intended to assist the families of the Eagle’s Flight defendants. However, as the BIA observed, the petitioners presented no evidence suggesting that the Montenegrin authorities have taken action against Nikola or have any intention of doing so. The documentation petitioners submitted provided no basis for the BIA to conclude that the Montenegrin authorities were aware of Nikola’s political activities in the United States or, even if they were aware, that they would be likely to persecute him on that basis.
Although Nikola could easily have submitted his own statement detailing his political activities in the United States, describing how those activities might have come to the attention of the Montenegrin authorities, and explaining why those activities would result in his persecution in Montenegro, as the BIA found, he failed to do so. See Hongsheng Leng v. Mukasey, 528 F.3d 135, 143 (2d Cir.2008). Given the vague and conelusory nature of the allegations made in the affidavits that were submitted, the BIA did not err in finding that the petitioners’ fear of future persecution was speculative at best. See Jian Xing Huang v. U.S. I.N.S., 421 F.3d 125, 128-29 (2d Cir.2005). Accordingly, the BIA reasonably concluded that the petitioners had failed to establish their prima facie eligibility for the relief they sought. As the failure to establish a prima facie case for relief constitutes an independent basis for denying a motion to reopen, the BIA did not abuse its discretion in denying the petitioners’ motion. See INS v. Abudu, 485 U.S. 94, 104, 108 S.Ct. 904, 99 L.Ed.2d 90 (1988).
For the foregoing reasons, the petition for review is DENIED. As we have completed our review, any stay of removal that *560the Court previously granted in this petition is VACATED, and any pending motion for a stay of removal in this petition is DISMISSED as moot. Any pending request for oral argument in this petition is DENIED in accordance with Federal Rule of Appellate Procedure 34(a)(2), and Second Circuit Local Rule 34(b).
|
01-04-2023
|
11-05-2022
|
https://www.courtlistener.com/api/rest/v3/opinions/8473306/
|
SUMMARY ORDER
Petitioner Yi Fu Zheng, a native and citizen of the People’s Republic of China, seeks review of the February 11, 2009 order of the BIA denying his motion to reopen. In re Yi Fu Zheng, No. A077 224 443 (B.I.A. Feb. 11, 2009). We assume the parties’ familiarity with the underlying facts and procedural history of the case.
We review the BIA’s denial of a motion to reopen for abuse of discretion, mindful of the Supreme Court’s admonition that such motions are “disfavored.” Ali v. Gonzales, 448 F.3d 515, 517 (2d Cir.2006) (citing INS v. Doherty, 502 U.S. 314, 322-23, 112 S.Ct. 719, 116 L.Ed.2d 823 (1992)). Here, we conclude that the BIA did not abuse its discretion in denying Zheng’s motion to reopen as untimely.
An alien seeking to reopen proceedings must file his motion to reopen no later than 90 days after the date on which the final administrative decision was rendered. See 8 C.F.R. § 1003.2(c)(2). There is no dispute that Zheng’s November 2008 motion was untimely where the BIA issued a final order of removal in June 2002. Moreover, the BIA properly found that Zheng’s motion did not qualify for an exception to the time limitation based on his assertion of changed country conditions in China. See 8 C.F.R. § 1003.2(c)(3)(ii).
It is well-settled that a change in personal circumstances, such as Zheng’s confirmation as a Roman Catholic in the United States and his recent increased devotion to the faith, is not evidence of changed conditions in China. See Wei Guang Wang v. BIA, 437 F.3d 270, 273-74 (2d Cir.2006); Li Yang Zheng v. U.S. Dep’t of Justice, 416 F.3d 129, 130-31 (2d Cir.2005).
Moreover, the BIA did not err in finding no changed country conditions in China as the 2007 and 2008 U.S. State Department Reports found that: Chinese Catholic clerics have led prayers for the pope and displayed the pope’s picture in some official (i.e., government registered) churches, the majority of Chinese Catholic bishops have reconciled with the Vatican, and the Chinese government allows the Vatican to have a discreet role in the selection of local bishops. Further, the letter Zheng submitted from a friend in China regarding the alleged harassment of Catholics does not compel the conclusion that the treatment of Catholics in China has materially changed since Zheng’s hearing in 2002 or that Zheng would become a specific target of China’s enforcement measures. See Jian Hui Shao v. Mukasey, 546 F.3d 138, 169-72 (2d Cir.2008). Contrary to Zheng’s assertion that the BIA faded to consider his evidence regarding changed county conditions, the BIA need not “expressly parse or refute on the record each individual argument or piece of evidence offered by the petitioner” as long as it “has given reasoned consideration to the petition, and made adequate findings.” Wei Guang Wang, 437 F.3d at 275 (internal quotations omitted).
Thus, the BIA did not abuse its discretion in finding that Zheng failed to demonstrate changed country conditions sufficient to excuse the untimeliness of his motion. See Ke Zhen Zhao v. U.S. Dep’t of Justice, 265 F.3d 83, 93 (2d Cir.2001).
For the foregoing reasons, the petition for review is DENIED. As we have completed our review, any stay of removal that *562the Court previously granted in this petition is VACATED, and any pending motion for a stay of removal in this petition is DISMISSED as moot. Any pending request for oral argument in this petition is DENIED in accordance with Federal Rule of Appellate Procedure 34(a)(2), and Second Circuit Local Rule 34(b).
|
01-04-2023
|
11-05-2022
|
https://www.courtlistener.com/api/rest/v3/opinions/8473308/
|
SUMMARY ORDER
Petitioner Zhuo Zheng, a native and citizen of the People’s Republic of China, seeks review of a February 11, 2009 order of the BIA, In re Zhou Zheng, No. A079 436 630 (B.I.A. Feb. 11, 2009), issued on remand from this Court. Zhou Zheng v. Mukasey, 285 Fed.Appx. 780 (2d Cir.2008). We assume the parties’ familiarity with the underlying facts and procedural history in this case.
When the BIA issues an independent decision on remand from this Court, the Court reviews the BIA’s decision alone. See Belortaja v. Gonzales, 484 F.3d 619, 623 (2d Cir.2007). We review the agency’s factual findings under the substantial evidence standard. 8 U.S.C. § 1252(b)(4)(B); see, e.g., Corovic v. Mukasey, 519 F.3d 90, 95 (2d Cir.2008). Questions of law and the application of law to undisputed fact are reviewed de novo. Salimatou Bah v. Mukasey, 529 F.3d 99, 110 (2d Cir.2008).
The agency properly found that Zheng failed to establish a well-founded fear of persecution, as required for a grant of asylum. 8 U.S.C. § 1101(a)(42). In our prior decision, we identified three errors in the BIA’s order necessitating remand: (1) the BIA failed to take into account Zheng’s testimony that he feared arrest because other church members might have given his name to the police, or because police officers might have recognized him; (2) the BIA erred in relying on omissions in Zheng’s grandmother’s letter; and (3) the BIA failed to consider the letter from Zheng’s uncle, which specifically addressed the shortcomings of the letter from Zheng’s grandmother.
The BIA remedied these errors in its February 2009 decision. First, the BIA assumed that police were aware of Zheng’s involvement in a church group, but found that he had failed to explain what happened to church members who were arrested. It further noted the absence of evidence suggesting that the authorities continued to look for Zheng after 2002. Thus, the BIA reasonably found that the record did not support a finding that Zheng’s fear was objectively reasonable. See Jian Xing Huang v. INS, 421 F.3d 125, 128-29 (2d Cir.2005) (holding that a fear is not objectively reasonable if it lacks “solid support” in the record and is merely “speculative at best.”). Second, the BIA considered Zheng’s uncle’s letter in conjunction with Zheng’s grandmother’s letter, reasonably concluding that, while his uncle’s letter confirmed details missing in his grandmother’s letter, it did not support a finding of a well-founded fear of future persecution. See Xiao Ji Chen v. U.S. Dep’t of Justice, 471 F.3d 315, 342 (2d Cir.2006) (holding that the weight afforded to the applicant’s evidence in immigration proceedings lies largely within the discretion of the IJ).
*564We also find no clear error in the agency’s conclusion that Zheng failed to establish the existence of a pattern or practice of persecution of unauthorized Christian church groups in China. See 8 C.F.R. § 1208.16(b)(2)(i). The agency’s finding was reasonable because the record indicates that in some areas of China, authorities tolerate small church and Bible study groups. Even if the record also reveals some official repression of religious groups, we find no error in the agency’s weighing of the evidence. See Siewe v. Gonzales, 480 F.3d 160, 167 (2d Cir.2007) (“Where there are two permissible views of the evidence, the factfinder’s choice between them cannot be clearly erroneous.”) (quoting Anderson v. Bessemer City, 470 U.S. 564, 574, 105 S.Ct. 1504, 84 L.Ed.2d 518 (1985)).
Because Zheng did not demonstrate that the agency erred in its analysis of his asylum claim, we leave undisturbed the agency’s denial of that relief. Insofar as Zheng failed to meet his burden of proof with respect to his asylum claim, he necessarily failed to meet the higher burden of proof required to prevail on his claim for withholding of removal. See Paul v. Gonzales, 444 F.3d 148, 156 (2d Cir.2006).
Finally, the BIA did not abuse its discretion in declining to remand Zheng’s proceedings to the IJ based on his claim that the record was “stale.” Motions to remand are held to the same substantive standards as motions to reopen. Singh v. U.S. Dep’t of Justice, 461 F.3d 290, 293 (2d Cir.2006). Here, because Zheng failed to specify any new evidence he wished to include other than the most recent country report, which he admits contained information “substantially similar” to the reports already in the record, the BIA did not err in refusing to remand. Id.; 8 C.F.R. § 1003.23(c). Nor will this Court remand for the BIA to consider additional evidence. See Xiao Xing Ni v. Gonzales, 494 F.3d 260, 269 (2d Cir.2007).
For the foregoing reasons, the petition for review is DENIED. As we have completed our review, any stay of removal that the Court previously granted in this petition is VACATED, and any pending motion for a stay of removal in this petition is DISMISSED as moot. Any pending request for oral argument in this petition is DENIED in accordance with Federal Rule of Appellate Procedure 34(a)(2), and Second Circuit Local Rule 34(b).
|
01-04-2023
|
11-05-2022
|
https://www.courtlistener.com/api/rest/v3/opinions/8473310/
|
SUMMARY ORDER
Petitioner Ya Ying Chen, a native and citizen of the People’s Republic of China, seeks review of a December 4, 2008 order of the BIA, denying her motion to reopen. In re Ya Ying Chen, No. A077 283 031 (B.I.A. Dec. 4, 2008). We assume the parties’ familiarity with the underlying facts and procedural history in this case.
As an initial matter, we decline to grant the government’s motion for summary disposition of Chen’s petition for review because her petition is not frivolous. Cf. Pillay v. INS, 45 F.3d 14, 17 (2d Cir.1995) (recognizing that the Court has the “inherent authority ... to dismiss an appeal or petition for review as frivolous when the appeal or petition presents no arguably meritorious issue for [] consideration.”). Nonetheless, because we are not persuaded that the BIA erred in denying Chen’s motion to reopen, we deny the petition for review.
We review the BIA’s denial of a motion to reopen for abuse of discretion. See Kaur v. BIA, 413 F.3d 232, 233 (2d Cir.2005) (per curiam). When the BIA considers relevant evidence of country conditions in evaluating a motion to reopen, we review the BIA’s factual findings under the substantial evidence standard. See Jian Hid Shao v. Mukasey, 546 F.3d 138, 169 (2d Cir.2008).
There is no dispute that Chen’s July 2008 motion to reopen was untimely because the BIA issued a final order of removal more than five years earlier in December 2002. See 8 C.F.R. § 1003.2(c)(2). However, there is no time limitation for filing a motion to reopen if it is “based on changed circumstances arising in the country of nationality or in the country to which deportation has been ordered, if such evidence is material and was not available and could not have been discovered or presented at the previous hearing.” 8 C.F.R. § 1003.2(c)(3)(h). The BIA reasonably found that Chen’s motion to reopen did not qualify for such an exception.
*566Chen waives any challenge to the BIA’s finding that she failed to demonstrate changed country conditions in China based on the birth of her two U.S. citizen children. See Yueqing Zhang v. Gonzales, 426 F.3d 540, 541 n. 1, 545 n. 7 (2d Cir.2005). Indeed, Chen’s sole argument is that the BIA abused its discretion in failing to explain its reason for finding that the notice from the Lingnan Village Committee of Tantou Town, Changle City (“Notice”) did not demonstrate changed circumstances in China related to her Falun Gong claim because said Notice indicated that local government officials had become aware of her practice of Falun Gong in the United States and wanted to punish her for such activities.
We have rejected the notion that the agency “must expressly parse or refute on the record each individual argument or piece of evidence offered by the petitioner,” Wei Guang Wang v. BIA, 437 F.3d 270, 275 (2d Cir.2006) (internal quotation marks omitted), and we “presume that [the agency] has taken into account all of the evidence before [it], unless the record compellingly suggests otherwise,” Xiao Ji Chen v. U.S. Dep’t of Justice, 471 F.3d 315, 337 n. 17 (2d Cir.2006). Nonetheless, the BIA abuses its discretion if it fails completely to address evidence of changed country conditions. See Wei Guang Wang, 437 F.3d at 275; see also Poradisova v. Gonzales, 420 F.3d 70, 81 (2d Cir.2005). However, while the agency must review evidence that it “is asked to consider time and again, ... it may do so in summary fashion without a reviewing court presuming that it has abused its discretion.” Wei Guang Wang, 437 F.3d at 275.
The BIA did not err in summarily declining to find that Chen’s evidence demonstrated changed circumstances in China. Indeed, the BIA is asked to consider, time and again, similar unauthenticated notices purportedly from Chinese government officials stating that they have discovered a Chinese national’s violation of China’s laws and ordering that individual to return to China for punishment. See id. We cannot find that the BIA erred in declining to credit as evidence of changed circumstances the unauthenticated Notice Chen submitted, particularly given the agency’s underlying finding that her claim of a well-founded fear of persecution was implausible. Cf. Qin Wen Zheng v. Gonzales, 500 F.3d 143, 146-49 (2d Cir.2007) (relying on the doctrine falsus in uno, falsus in omnibus to conclude that the agency may decline to credit documentary evidence submitted with a motion to reopen by an alien who was found not credible in the underlying proceeding) (citing Siewe v. Gonzales, 480 F.3d 160, 170 (2d Cir.2007)). In fact, we note the implausibility of Chen’s assertion that local government officials in China discovered her practice of Falun Gong in the United States because unidentified Chinese nationals visiting New York happened to photograph her practicing Falun Gong and somehow gave the photographs to Chen’s local village committee. See Siewe, 480 F.3d at 168-69.
Accordingly, because the BIA did not abuse its discretion in summarily considering and rejecting the evidence Chen submitted, it reasonably denied her motion to reopen as untimely. See 8 C.F.R. § 1003.2(c)(3)(h).
For the foregoing reasons, the Respondent’s motion for summary disposition is DENIED and, upon plenary consideration, the petition for review is DENIED. As we have completed our review, any stay of removal that the Court previously granted in this petition is VACATED, and any pending motion for a stay of removal in this petition is DISMISSED as moot. Any pending request for oral argument in this petition is DENIED in accordance *567with Federal Rule of Appellate Procedure 34(a)(2), and Second Circuit Local Rule 34(b).
|
01-04-2023
|
11-05-2022
|
https://www.courtlistener.com/api/rest/v3/opinions/8473320/
|
SUMMARY ORDER
Plaintiff-appellant Paul Louis was granted disability insurance benefits by defendant-appellee Commissioner of Social Security, in a fully favorable decision issued by the Appeals Council on May 13, 2005, that found that plaintiff had been disabled since his claimed onset date of May 1, 1981. The Appeals Council mailed notice to plaintiff advising him that if he disagreed with the decision, he could seek judicial review within sixty days of receiving the notice, and that receipt would be presumed within five days of mailing. The Appeals Council also advised plaintiff that if he could not seek review within the sixty days, he could request a time extension for filing. Plaintiff did not timely seek review or extension, but rather faxed a letter to the Appeals Council on December 4, 2006 (almost nineteen months after plaintiff received the Appeals Council notice). The Appeals Council construed plaintiffs letter as a request for reopening and declined to reopen his case because his request fell outside of the sixty-day window. On December 24, 2006, plaintiff submitted a second request for reopening which the Appeals Council denied on May 12, 2007.
On May 25, 2007, plaintiff filed a complaint seeking reopening of his benefits claim in the District Court and, on April 10, 2008, the Magistrate Judge issued a Report and Recommendation (R & R) recommending that the District Court grant defendant’s motion to dismiss plaintiffs complaint. Plaintiff filed timely objections to the R & R, which the Magistrate Judge rejected in an April 23, 2008 order that also granted defendant’s motion to dismiss. *578Plaintiff timely filed this appeal. We assume the parties’ familiarity with the remaining underlying facts, the procedural history, and the issues on appeal.
Plaintiff argues that (1) the statute of limitations for reopening the Appeals Council’s decision should be equitably tolled because there was a misunderstanding with his attorney as to the onset date of his disability, and (2) even though the District Court determined that it lacked jurisdiction to review defendant’s decisions^ — inasmuch as they are not “final decisions” — to deny reopening of plaintiffs claims, plaintiffs claim warrants review because he was denied due process under the Fifth Amendment.
For the reasons stated in its order of April 23, 2008, Louis v. Comm’r of Soc. Sec., No. 6:07 cv 0557, 2008 WL 1882706 (N.D.N.Y. Apr.24, 2008), we agree with the District Court that it lacked jurisdiction to review defendant’s decisions. We have considered plaintiffs remaining claims and find them to be without merit.
CONCLUSION
Accordingly, we AFFIRM the judgment of the District Court.
|
01-04-2023
|
11-05-2022
|
https://www.courtlistener.com/api/rest/v3/opinions/8473324/
|
SUMMARY ORDER
Yun Juan Pan, a native and citizen of the People’s Republic of China, seeks review of a December 31, 2008 order of the BIA, affirming the November 20, 2006 de-*581cisión of Immigration Judge (“IJ”) Steven R. Abrams, who pretermitted Pan’s application for asylum as untimely, and denied Pan’s application for withholding of removal and relief under the Convention Against Torture (“CAT”). In re Yuan Juan Pan, No. A099 560 326 (B.I.A. Dec. 31, 2008), aff'g No. A099 560 326 (Immig. Ct. N.Y. City Nov. 20, 2006). We assume the parties’ familiarity with the underlying facts and procedural history in this case.
When the BIA affirms the IJ’s decision in some respects but not in others, this Court reviews the IJ’s decision as modified by the BIA. See Xue Hong Yang v. U.S. Dep’t of Justice, 426 F.3d 520, 522 (2d Cir.2005). We review the agency’s factual findings, including adverse credibility determinations, under the “substantial evidence” standard. 8 U.S.C. § 1252(b)(4)(B); Corovic v. Mukasey, 519 F.3d 90, 95 (2d Cir.2008). We review de novo questions of law and the application of law to undisputed fact. Salimatou Bah v. Mukasey, 529 F.3d 99, 110 (2d Cir.2008).
As an initial matter, because Pan did not raise a constitutional claim or question of law regarding the timeliness of her asylum application, we lack jurisdiction to review the agency’s pretermission of her asylum claim. See 8 U.S.C. §§ 1158(a)(3), 1252(a)(2)(D); Xiao Ji Chen v. U.S. Dep’t of Justice, 471 F.3d 315, 324 (2d Cir.2006). Accordingly, we consider only her challenge to the agency’s adverse credibility determination and the resulting denial of her application for withholding of removal and CAT relief.
Substantial evidence supports the agency’s adverse credibility determination. For example, her testimony that she arrived in the U.S. 2004, but later submitted into evidence a passport issued at the Chinese Consulate in New York in October 2004. When asked how she obtained a passport at the New York consulate before her arrival in the U.S., Pan’s counsel provided no answer. Because the IJ was entitled to rely on any discrepancy in making his adverse credibility determination, this finding was not in error. See Xiu Xia Lin v. Mukasey, 534 F.3d 162, 166-67 (2d Cir.2008).
Additionally, Pan initially testified and indicated in her asylum application that her parents had been arrested three times, but stated on cross-examination that they were arrested a fourth time. When asked why she failed to mention this incident in her asylum application, Pan stated that she thought her application contained enough information. Although we have held that “asylum applicants are not required to list every incident of persecution on their 1-589 statements,” Pavlova v. INS, 441 F.3d 82, 90 (2d Cir.2006), Pan’s omission of this assertion was sufficiently dramatic as to undermine her credibility, see Xian Tuan Ye v. DHS, 446 F.3d 289, 295-96 (2d Cir.2006). Moreover, the IJ reasonably declined to credit Pan’s explanations. See Majidi v. Gonzales, 430 F.3d 77, 80-81 (2d Cir.2005).
The agency also reasonably found portions of Pan’s testimony implausible, including her claim that she sent her child to be baptized in China despite her alleged fear of persecution there. Asked to explain, Pan claimed that the church she attended in the U.S. told her “they could not just perform [a] baptism [at] anytime.” The agency also found suspicious Pan’s testimony that her underground church had remained in the same location despite multiple raids. Pan argues that these findings are arbitrary. We disagree. Indeed, they are “tethered to record evidence,” and we are not left with a “firm *582conviction of error.” See Wensheng Yan v. Mukasey, 509 F.3d 63, 67-68 (2d Cir.2007); see also Siewe v. Gonzales, 480 F.3d 160, 168-69 (2d Cir.2007).
Ultimately, the agency’s adverse credibility determination is amply supported by the record. Accordingly, its denial of Pan’s application for withholding of removal was proper. See Xiu Xia Lin, 534 F.3d at 166-67.
Finally, Pan argues that the BIA erred by failing to conduct a separate analysis of her CAT claim. However, both the IJ and the BIA observed that Pan failed to provide any evidence that she had been tortured in the past or would more likely than not be tortured in the future. Because a petitioner must provide such evidence to establish a CAT claim, see 8 C.F.R. § 1208.16(c), there was no error in denying Pan’s CAT claim.
For the foregoing reasons, the petition for review is DENIED. As we have completed our review, any stay of removal that the Court previously granted in this petition is VACATED, and any pending motion for a stay of removal in this petition is DISMISSED as moot. Any pending request for oral argument in this petition is DENIED in accordance with Federal Rule of Appellate Procedure 34(a)(2), and Second Circuit Local Rule 34(b).
|
01-04-2023
|
11-05-2022
|
https://www.courtlistener.com/api/rest/v3/opinions/8473326/
|
SUMMARY ORDER
Defendant Auburn Enlarged Central School District (“Auburn”) appeals from a judgment awarding J.G., as parent and next friend of plaintiffs V.G. and M.G., $9,608.30 in attorneys’ fees as the “prevailing party” in two administrative actions brought pursuant to the Individuals with Disabilities Education Act (IDEA), 20 U.S.C. § 1415(i)(3)(B)(i)(I). On appeal, Auburn argues that the district court erred in ruling that J.G. qualifies as a prevailing party under the statute because the Impartial Hearing Officers (“IHO”) in V.G. and M.G.’s administrative actions simply “so-ordered” consent decrees negotiated, drafted, and agreed upon by the parties. “[W]e review the district court’s interpretation of the relevant fee-shifting statute de novo,” Mr. L. v. Sloan, 449 F.3d 405, 406 (2d Cir.2006), and we assume the parties’ familiarity with the facts and the record of prior proceedings, which we reference only as necessary to explain our decision.
Our decision in A.R. v. New York City Department of Education, 407 F.3d 65 (2d Cir.2005), compels affirmance here. In A.R., we held that parents are “entitled to ‘prevailing party’ status” if they obtain the “administrative analog of a consent decree” from an IHO, even where “the terms of [such orders] ar[i]se out of an agreement between the parties, rather than out of the wisdom of the IHO.” Id. at 77. That is precisely what took place in V.G. and M.G.’s administrative actions.
In urging us to reach a contrary result, Auburn principally relies on a footnote in A.R., 407 F.3d at 78 n. 14, that, in turn, discussed certain “footnoted dictum” in Torres v. Walker, 356 F.3d 238, 245 n. 6 (2d Cir.2004). We are not persuaded. Even assuming, as we did in A.R., that “some evidence” of an IHO’s intent to *584place his imprimatur on a consent decree is required for a parent to be considered a prevailing party under these circumstances, that requirement is met here. A.R. v. N.Y. City Dep’t of Educ., 407 F.3d at 78 n. 14. This case is not materially distinguishable from that part of A.R. addressing the record of the second portion of M.S.’s case. See id. at 69. Moreover, the IHOs’ intent to place imprimaturs on the consent decrees is beyond dispute here. See, e.g., Letter from IHO James P. Walsh to Susan P. Johns (Jan. 17, 2006) (“I return to you herewith the original [M.G.] Consent Decree entered into by and between the parties, to which I have added my ‘So Ordered.’ ”); Owen Aff. at 6 (describing signing of V.G. decree). Finally, we decline Auburn’s invitation to speculate that the Ai?, panel reached its conclusions in reliance on factors not identified in the opinion. See, e.g., Appellant’s Reply Br. at 7 (“It is possible that the record before the Court revealed that the IHO [in M.S.] actually played more of a role than is appai’ent from the decision.”).
We have considered Auburn’s other arguments and find them to be without merit. For the foregoing reasons, the judgment of the district court is AFFIRMED.
|
01-04-2023
|
11-05-2022
|
https://www.courtlistener.com/api/rest/v3/opinions/8473328/
|
SUMMARY ORDER
Li Ming Lin, a native and citizen of the People’s Republic of China, seeks review of a November 26, 2008 order of the BIA denying his motion to reopen his removal proceedings. In re Li Ming Lin, No. A076 095 528 (B.I.A. Nov. 26, 2008). We assume the parties’ familiarity with the underlying facts and procedural history of the case.
We review the BIA’s denial of a motion to reopen for abuse of discretion. Ali v. Gonzales, 448 F.3d 515, 517 (2d Cir.2006). Here, the BIA did not abuse its discretion in denying Lin’s untimely motion to reopen. An alien may only file one motion to reopen and must do so within 90 days of the final administrative decision. 8 C.F.R. § 1003.2(c)(2). However, there is no time or numerical limitation where the alien establishes materially “changed circumstances arising in the country of nationality.” 8 C.F.R. § 1003.2(c)(3)(ii). Lin’s motion to reopen was unquestionably untimely where it was filed almost six years after the agency’s final order of removal. See 8 C.F.R. § 1003.2(c)(2).
The BIA did not err in finding that the evidence Lin submitted with his motion to reopen did not overcome the adverse credibility determination made in Lin’s removal proceeding. As we have found, the BIA may reasonably decline to accord probative weight to documents submitted with a motion to reopen where the IJ made an adverse credibility determination after the movant’s asylum hearing. Qin Wen Zheng v. Gonzales, 500 F.3d 143, 146-47 (2d Cir.2007). We find no abuse of discretion in the BIA’s decision to do so here. See id.; Kaur v. BIA, 413 F.3d 232, 233 (2d Cir.2005) (per curiam) (finding that evidence submitted was not material because it did not overcome the IJ’s prior adverse credibility determination); Siewe v. Gonzales, 480 F.3d 160, 170 (2d Cir.2007) (“[A] single false document or a single instance of false testimony may (if attributable to the petitioner) infect the balance of the alien’s uncorroborated or unauthenticated evidence.”). The BIA’s finding that Lin failed to demonstrate changed country conditions is dispositive of his petition for review. See 8 C.F.R. § 1003.2(c)(3)(ii).
*586For the foregoing reasons, the petition for review is DENIED. As we have completed our review, any stay of removal that the Court previously granted in this petition is VACATED, and any pending motion for a stay of removal in this petition is DISMISSED as moot. Any pending request for oral argument in this petition is DENIED in accordance with Federal Rule of Appellate Procedure 34(a)(2), and Second Circuit Local Rule 34(b).
|
01-04-2023
|
11-05-2022
|
https://www.courtlistener.com/api/rest/v3/opinions/8473330/
|
*587
SUMMARY ORDER
Petitioner Oleg Samartsiev, a native and citizen of Belarus, seeks review of a September 19, 2008 order of the BIA denying his motion to reopen and affirming the IJ’s March 22, 2004 denial of his motion to rescind his in absentia removal order. In re Oleg S. Samartsiev, No. A075 981 363 (B.I.A. Sept. 19, 2008), aff'g No. A075 981 363 (Immig. Ct. N.Y. City Mar. 22, 2004). We assume the parties’ familiarity with the underlying facts and procedural history in this case.
When the BIA adopts the decision of the IJ and supplements the IJ’s decision, we review the decision of the IJ as supplemented by the BIA. See Yan Chen v. Gonzales, 417 F.3d 268, 271 (2d Cir.2005). We review a motion to reopen proceedings in order to rescind an in absentia removal order for abuse of discretion. See Alrefae v. Chertoff, 471 F.3d 353, 357 (2d Cir.2006). In order to succeed on such a motion, an alien must demonstrate that his failure to appear was the result of exceptional circumstances beyond his control. 8 C.F.R. § 1003.23(b)(4)(ii). Ineffective assistance of counsel may constitute such an exceptional circumstance if the ineffective assistance results in an alien’s failure to appear at his hearing. See Aris v. Mukasey, 517 F.3d 595, 599 (2d Cir.2008).
Samartsiev argued in his motion to rescind that he failed to appear at his hearing because his former attorney’s assistant, David Lynn, erroneously informed him that his hearing had been canceled. However, Samartsiev stated in an earlier filed Notice of Appeal, which the BIA rejected, that he failed to appear on account of illness. The IJ denied the motion based on Samartsiev’s failure to explain the discrepancy, and the BIA reasonably affirmed that decision. Accordingly, the agency did not abuse its discretion in denying the motion to rescind. See Alrefae, 471 F.3d at 357.
In addition, the BIA did not abuse its discretion in denying Samartsiev’s motion to reopen for failure to meet the procedural requirements for a claim of ineffective assistance of counsel set forth in Matter of Lozada, 19 I. & N. Dec. 637 (B.I.A.1988). Samartsiev did fulfill the hozada requirements with respect to the allegation set forth in his motion to rescind. However, Samartsiev made an additional allegation of misconduct in his motion to reopen, claiming that Lynn instructed him to sign a blank Notice of Appeal form which he subsequently filed with the BIA without Samartsiev’s knowledge or consent. This claim was a separate and independent allegation of ineffective assistance, and Samartsiev failed to separately and independently satisfy the procedural requirements set forth in Matter of Lozada with respect to that allegation. Because Samartsiev made no effort to comply with Matter of Lozada in advancing this new claim of ineffective assistance, the BIA did not err in denying his motion. See Ruiz-Martinez v. Mukasey, 516 F.3d 102, 121 (2d Cir.2008) (recognizing that, while “slavish adherence” to Matter of Lozada is not required, when an alien does not comply with those requirements in any respect, the ineffective assistance of counsel claim is forfeited).
Samartsiev argues that he should not be required to comply with the requirements set forth in Matter of Lozada because Lynn was not an attorney. However, Samartsiev has repeatedly identified Lynn as the assistant to his former attorney. And when a petitioner brings a claim of ineffective assistance of counsel stemming from the actions of a non-attorney immigration consultant, he must still make an effort to comply with Matter of Lozada. See, e.g., Omar v. Mukasey, 517 F.3d 647, 651 (2d Cir.2008) (finding that the BIA’s decision to deny the petitioner’s ineffective assistance claim against a non-attorney immi*588gration consultant based on non-compliance with Lozada was “neither arbitrary nor capricious”).
Samartsiev also argues that he should not be required to comply with Matter of Lozada because it is “obvious” that Lynn provided ineffective assistance of counsel. We have held that strict compliance with Matter of Lozada is not necessary when the facts upon which the petitioner’s ineffective assistance of counsel claim is based are plain on the face of the administrative record. See Yi Long Yang v. Gonzales, 478 F.3d 133, 143 (2d Cir.2007). The record here, however, does not establish either that Lynn filed the Notice of Appeal on Samartsiev’s behalf or the circumstances surrounding its filing. Nor does Lynn’s supposed arrest and conviction provide a basis for excusing compliance with Matter of Lozada in the circumstances of this case.
For the foregoing reasons, the petition for review is DENIED. As we have completed our review, any stay of removal that the Court previously granted in this petition is VACATED, and any pending motion for a stay of removal in this petition is DISMISSED as moot. Any pending request for oral argument in this petition is DENIED in accordance with Federal Rule of Appellate Procedure 34(a)(2), and Second Circuit Local Rule 34(b).
|
01-04-2023
|
11-05-2022
|
https://www.courtlistener.com/api/rest/v3/opinions/8473332/
|
SUMMARY ORDER
Defendant-appellant John P. Dundon appeals from a July 17, 2008 second amended judgment of conviction entered after defendant pleaded guilty to one count of bank fraud in violation 18 U.S.C. § 1344, one count of identity theft in violation of 18 U.S.C. § 1028(a)(7), and two counts of willful failure to account for or pay over taxes in violation of 26 U.S.C. § 7202. Defendant was sentenced princi*590pally to eighty-seven months imprisonment on the bank fraud count, eighty-seven months imprisonment on the identity theft count, and sixty months imprisonment on each count of willful failure to pay taxes— all to run concurrently.
Defendant was originally sentenced in August 2006. One year later, in August 2007, defendant made a motion under 28 U.S.C. § 2255 claiming that he had received ineffective assistance of counsel because his attorney had failed to file a notice of appeal. The District Court granted defendant’s motion in July 2008 and stated its intent to “enter a new judgment imposing the same sentence in open court with defense counsel present.” Appellant’s App. 208; see Garcia v. United States, 278 F.3d 134, 138 (2d Cir.2002) (instructing a district court, in a similar situation, to either “(1) enter a new judgment imposing the same sentence in open court with defense counsel present or (2) if the district court discerns any useful purpose in further considering the sentence, resentence the defendant” (citation omitted)). Ten days later, the District Court held a hearing, briefly discussed the defendant’s sentence, and imposed the same sentence it had imposed in 2006. Defense counsel was present at the second sentencing hearing, but defendant and counsel for the government were not.
Defendant brings this appeal seeking to overturn his sentence only. Defendant claims that the District Court erred in applying an obstruction-of-justice enhancement under United States Sentencing Guidelines § 3C1.1 because (i) the District Court failed to make a specific finding that defendant willfully obstructed justice and (ii) the District Court failed to state its reasons for applying the obstruction-of-justice enhancement with sufficient particularity. Defendant also claims that the District Court’s “findings” were “confusing” because, in the second sentencing hearing, the District Court stated that the government had moved for a one-level reduction for acceptance of responsibility when, in fact, the government had not made such a motion. Appellant’s Br. 24.
We review a District Court’s sentencing determinations under a “ ‘deferential abuse-of-discretion standard,’ ” considering both procedural and substantive reasonableness. See United States v. Cavera, 550 F.3d 180, 189 (2d Cir.2008) (en banc) (quoting Gall v. United States, 552 U.S. 38, 128 S.Ct. 586, 591, 169 L.Ed.2d 445 (2007)). Undertaking that review, we affirm the District Court’s sentencing determination.
Defendant first argues that the obstruction-of-justice enhancement under § 3C1.1 was improper because the District Court failed to make an explicit finding that defendant willfully obstructed justice. An obstruction of justice enhancement under § 3C1.1 “is not appropriate, by the terms of that section, unless the obstruction was ‘willful[ ],’ ” and in order “to impose a § 3C1.1 obstruction-of-justice enhancement on a defendant who has raised an issue as to his state of mind ..., the court must make ‘a specific finding of intent.’ ” United States v. Reed, 49 F.3d 895, 900-01 (2d Cir.1995).
Here, the District Court imposed the obstruction-of-justice enhancement on the basis of two findings: first, that defendant had submitted a fabricated document to the IRS and, second, that defendant had caused his wife to submit a forged email in support of defendant’s bail application. Although the District Court did not use the words “willfull,” “willfully,” or “willfulness” at the sentencing hearing, we do not read our precedent to require the use of magic words at sentencing. See Cavera, 550 F.3d at 193 (“Sentencing is a responsibility heavy enough without our adding formulaic or ritualized burdens.”). It is enough that the District Court, having ad*591dressed and rejected defendant’s arguments, specifically found that defendant “did obstruct justice pursuant to U.S. Sentencing Guidelines 3C1.1.” Appellant’s App. 191. Indeed, although remand is appropriate where a court “neither clearly resolves the disputed issue nor explicitly relies on factual assertions made in a [pre-sentence report],” Reed, 49 F.3d at 901, here the District Court clearly stated its grounds for applying the obstruction-of-justice enhancement and explicitly adopted the factual assertions made in the presen-tence report. We therefore reject defendant’s claim that the District Court erred by failing to make a “specific finding of intent” with respect to the obstruction-of-justice enhancement.
Likewise, we reject defendant’s contention that the District Court erred by making insufficiently particular findings with respect to the obstruction-of-justice enhancement. After reviewing the transcripts of the sentencing hearings, we are “satisfied]” that the District Court “ ‘considered the parties’ arguments’ ” and had a “ ‘reasoned basis for exercising [its] own legal decisionmaking authority.’ ” Cavera, 550 F.3d at 193 (quoting Rita v. United States, 551 U.S. 338, 356, 127 S.Ct. 2456, 168 L.Ed.2d 203 (2007)).
Finally, we reject defendant’s contention that remand is required because the District Court’s “findings” were “confusing” in the second sentencing hearing. Appellant’s Br. 24. In the initial sentencing hearing, the District Court granted, over the government’s objection, a two-point reduction for acceptance of responsibility. At the second sentencing hearing, with only defense counsel present, the District Court again applied the two-point reduction for acceptance of responsibility but also stated that the government had moved for an additional one-point reduction for acceptance of responsibility under United States Sentencing Guidelines § 3E1.1 (b). In fact, the government had made no such motion. The District Court then calculated the Guidelines sentencing range but did not apply the additional one-point reduction. After defense counsel pointed out the discrepancy, the District Court explained that a sentence of 87 months was within the Guidelines range even if the additional one-point reduction applied. Thus, the District Court stated that its 87-month “stands.” Appellant’s App. 219.
We do not conclude that the District Court’s minor misstatement regarding the additional one-point reduction merits remand. The District Court at the second sentencing hearing simply carried out its intention of “imposing the same sentence” that it imposed in the first sentencing hearing. Appellant’s App. 208. Even if the District Court mistakenly stated that the government had moved for an additional one-point reduction, the sentence must be affirmed because the District Court found that the sentence would “stand[]” even if that reduction were to apply. See United States v. Bermingham, 855 F.2d 925, 935 (2d Cir.1988) (“As long as the sentencing judge is satisfied that the same sentence would have been imposed no matter which of the two guideline ranges applies, the sentence should stand.”).
CONCLUSION
The July 17, 2008 second amended judgment of conviction is AFFIRMED.
|
01-04-2023
|
11-05-2022
|
https://www.courtlistener.com/api/rest/v3/opinions/8473334/
|
SUMMARY ORDER
Employers Reinsurance Corporation (“ERC”) appeals from a judgment of the United States District Court for the Southern District of New York (Berman, J.) denying its motion for summary judgment against The Thomson Corporation (“Thomson”), which brought this action seeking, *593inter alia, a declaration that its communications liability insurance policy (“the policy”) with ERC provided for coverage of up to $10 million. We assume the parties’ familiarity with the underlying facts and the procedural history of the case, as well as the issues on appeal.
Thomson, the publisher of a Canadian newspaper called “The Globe and Mail,” claims that ERC breached its obligation under the policy to provide $10 million (U.S.) in coverage with respect to two copyright lawsuits brought against it in Canada relating to the re-publication of freelance articles written for The Globe and Mail in “Info Globe Online,” an electronic database owned by Thomson. The policy specifically provided “communications liability” coverage to the “Named Insured,” which included Thomson and its subsidiaries, arising out of, among other things, copyright infringement “committed in the utterance or dissemination of matter by or with the permission of the NAMED INSURED or its subsidiary during the policy period [March 31, 1995-March 31, 1996] in the named publication(s) and in any advertising of the named publication(s).” Endorsement No. 31 extended coverage “to include the on-line activities of the Named Insured.”
According to ERC, the policy provided coverage of up to $1 million (Canadian). ERC asserts that Endorsement No. 18 (adding the publication The Globe and Mail with a liability limit of $10 million (U.S.)) does not apply here because the copyright infringements did not occur in The Globe and Mail- — but rather on Info Globe Online — and Info Globe Online is an “on-line activity” of “named insured” Thomson, not a daily electronic version of The Globe and Mail newspaper.
The district court denied ERC’s motion for summary judgment, concluding that the policy was ambiguous as to whether the $1 million or the $10 million coverage limit applied to the copyright claims. The case proceeded to trial. The jury returned a verdict for Thomson, finding that the $10 million coverage limit set forth in Endorsement No. 18 applied. ERC appealed.
ERC now asks us to review the district court’s order denying it summary judgment. ERC argues that the district court erred in concluding that the policy was ambiguous as to the liability limits applicable to the copyright infringement actions. It asserts that the policy unambiguously provided Thomson with coverage in the amount of $1 million (Canadian), not $10 million (U.S.) as found by the jury.
However, it was conceded on appeal that the case was tried by ERC on the theory that Globe Online was under the control of Thomson and therefore the coverage limit was $1 million (Canadian) as set forth in Endorsement No. 31 and not the $10 million (U.S.) provided for in Endorsement No. 18 for The Globe and Mirror. Thus, ERC tried the case on a theory different from that which it espoused in its motion for summary judgment, and it did not continue to assert at trial that the coverage issue could be decided as a matter of law.
Generally, a party cannot appeal from the denial of a motion for summary judgement where there was an intervening trial of the merits. Pahuta v. Massey-Ferguson, Inc., 170 F.3d 125, 129-33 (2d Cir.1999). The circumstances of ERC’s employment of a trial strategy that differed from the legal theory it advanced on its motion for summary judgment do not make this case an appropriate candidate for any of the available exceptions to the general rule. See Schaefer v. State Ins. Fund, 207 F.3d 139, 142 (2d Cir.2000).
The Court has reviewed ERC’s remaining arguments and finds them to be without merit. Accordingly, for the reasons *594set forth above, the judgment of the district court is hereby AFFIRMED.
|
01-04-2023
|
11-05-2022
|
https://www.courtlistener.com/api/rest/v3/opinions/8473336/
|
SUMMARY ORDER
Appellant James Williams, pro se, appeals from a judgment of the District Court entered after the District Court granted defendant James Temple’s motion for summary judgment. Williams brought this action under 42 U.S.C. § 1983 alleging a procedural due process claim under Sandin v. Conner, 515 U.S. 472, 115 S.Ct. 2293, 132 L.Ed.2d 418 (1995); a claim under the Free Exercise Clause of the First Amendment and the Religious Land Use and Institutionalized Persons Act (“RLUI-PA”), 42 U.S.C. § 2000ce, et seq.; and a First Amendment retaliation claim. We assume the parties’ familiarity with the underlying facts, procedural history, and issues on appeal.
We review a district court’s order granting summary judgment de novo and ask whether the district court properly concluded that there was no genuine issue as to any material fact and that the moving party was entitled to judgment as a matter of law. See Miller v. Wolpoff & Abramson, L.L.P., 321 F.3d 292, 300 (2d Cir.2003). In determining whether there are genuine issues of material fact, we are “required to resolve all ambiguities and draw all permissible factual inferences in favor of the party against whom summary judgment is sought.” Terry v. Ashcroft, 336 F.3d 128, 137 (2d Cir.2003) (internal quotation marks omitted).
First, we agree with the District Court that summary judgment for Temple was proper with respect to Williams’s procedural due process claim. As the Supreme Court held in Sandin, a prisoner has the right to procedural due process before the deprivation of a liberty interest. 515 U.S. at 483-84, 115 S.Ct. 2293. Nevertheless, placement in restrictive confinement implicates a prisoner’s liberty interest only if the confinement “imposes [an] atypical and significant hardship on the inmate in relation to the ordinary incidents of prison life.” Id. at 484, 115 S.Ct. 2293. The admissible evidence in the record contains no indication that the conditions and duration of Williams’s placement on limited privilege — which lasted from approximately April 13, 2005, to May 25, 2005— rose to the level of an “atypical and significant hardship.” See Palmer v. Richards, 364 F.3d 60, 64-65 (2d Cir.2004).
*596We also agree with the District Court that summary judgment for Temple was proper with respect to Williams’s claims under the Free Exercise Clause and RLUIPA. The prison in which Williams was housed allowed inmates on limited privilege to request to attend religious services, and Williams has provided no evidence that he complied with that policy. On this record, Williams’s evidence cannot support a claim that the prison’s policy was not “reasonably related to a legitimate penological interests” under the Free Exercise Clause. Salahuddin v. Goord, 467 F.3d 263, 274 (2d Cir.2006) (internal quotation marks omitted). Nor does the evidence submitted by Williams support a claim under RLUIPA, 42 U.S.C. § 2000cc-1(a).
Lastly, we agree with the District Court that summary judgment for Temple was proper with respect to Williams’s First Amendment retaliation claim. To defeat summary judgment on his First Amendment retaliation claim, Williams was required to provide evidence that (1) his speech was constitutionally protected, (2) Temple took an adverse action against him, and (3) there was a causal relationship between the protected speech and the adverse action. See Scott v. Coughlin, 344 F.3d 282, 287 (2d Cir.2003). Williams provided evidence that Temple placed him on limited privilege status after Williams complained that he had not been assigned an educational or vocational program. As we have previously held, however, where the challenged action “is motivated by both proper and improper reasons, the action may be sustained if it would have been taken even in the absence of the improper reason.” Lowrance v. Achtyl, 20 F.3d 529, 535 (2d Cir.1994). Here, Williams submitted several documents with his opposition to the motion for summary judgment in which he admitted that he had refused to accept programs that had been offered to him. Thus, we agree with the District Court that Williams’s “assignment to limited privilege status would have occurred even in the absence of the alleged improper motive.” Cf. id. at 535.
CONCLUSION
For the reasons set forth above, the judgment of the district court is AFFIRMED. Williams’s pending motion “for some kind of settlement” is DENIED.
|
01-04-2023
|
11-05-2022
|
https://www.courtlistener.com/api/rest/v3/opinions/8473340/
|
SUMMARY ORDER
Petitioner Jian Wen Wang, a native and citizen of the People’s Republic of China, seeks review of:. (1) the February 27, 2008 order of the BIA denying his third motion to reopen, In re Jian Wen Wang, No. A076 586 583 (B.I.A. Feb. 27, 2008); and (2) the July 24, 2008 order of the BIA denying his motion to reconsider and fourth motion to reopen, In re Jian Wen Wang, No. A076 586 583 (B.I.A. July 24, 2008). We assume the parties’ familiarity with the underlying facts and procedural history in this case.
We review the BIA’s denial of a motion to reopen and reconsider for abuse of discretion. See Kaur v. BIA, 413 F.3d 232, 233 (2d Cir.2005) (per curiam). There is no dispute that Wang’s third and fourth motions to reopen were untimely and number-barred. See 8 C.F.R. § 1003.2(c)(2) (providing that an alien seeking to reopen proceedings may file one motion to reopen no later than 90 days after the date on which the final administrative decision was rendered). However, there are no time and number limitations for filing a motion to reopen if it is “based on changed circumstances arising in the country of nationality or in the country to which deportation has been ordered, if such evidence is material and was not available and could not have been discovered or presented at the previous hearing.” 8 C.F.R. § 1003.2(c)(3) (ii).
I. Dkt. No. 08-1296-ag (L)
The BIA did not abuse its discretion in denying Wang’s third motion to reopen because it reasonably found that he failed to proffer material evidence in support of that motion. Contrary to Wang’s *601arguments, in evaluating the evidence that he submitted in support of his motion, the BIA did not err in failing to specifically discuss: (1) an unauthenticated notice that family planning officials allegedly sent to an anonymous couple in Fujian Province; and (2) a newspaper article from The New Ycyrk Times. Although “Us and the BIA have a duty to explicitly consider any country conditions evidence submitted by an applicant that materially bears on his claim,” Zhi Yun Gao v. Mukasey, 508 F.3d 86, 87 (2d Cir.2007)(quotations omitted), the Court presumes that the agency has considered the evidence unless the record compellingly suggests otherwise, see Xiao Ji Chen v. U.S. Dep’t of Justice, 471 F.3d 315, 336 n. 17 (2d Cir.2006). We are not compelled to conclude that the BIA ignored Wang’s evidence.
With respect to Wang’s religion-based claim, the BIA reasonably concluded that he failed to establish that the Chinese government was or would become aware of his religious activities. See Hongsheng Leng v. Mukasey, 528 F.3d 135, 143 (2d Cir.2008). Wang argues that the BIA “had a duty” to take administrative notice of the International Religious Freedom Report that he submitted. But, again, we are not compelled to find that the BIA ignored that evidence. See Xiao Ji Chen, 471 F.3d at 337 n. 17.
Ultimately, because the BIA did not err in finding that Wang failed to submit material evidence demonstrating a change in country conditions, see Jian Hui Shao v. Mukasey, 546 F.3d 138, 169 (2d Cir.2008), it did not abuse its discretion in denying his third motion to reopen. See INS v. Abudu, 485 U.S. 94, 104-05, 108 S.Ct. 904, 99 L.Ed.2d 90 (1988); see also 8 C.F.R. § 1003.2(c)(1). This Court lacks jurisdiction to consider the BIA’s refusal to reopen Wang’s proceedings sua sponte. See Ali v. Gonzales, 448 F.3d 515, 518 (2d Cir.2006).
II. Dkt. No. 08-3940-ag (Con)
Although Wang filed a timely petition for review from the BIA’s order denying his motion to reconsider and fourth motion to reopen, he makes no argument concerning that order. Thus, we deem any challenge to that order waived. See Yueqing Zhang v. Gonzales, 426 F.3d 540, 545 n. 7 (2d Cir.2005).
For the foregoing reasons, these petitions for review are DENIED. As we have completed our review, the pending motion for a stay of removal in these petitions is DISMISSED as moot.
|
01-04-2023
|
11-05-2022
|
https://www.courtlistener.com/api/rest/v3/opinions/8473344/
|
SUMMARY ORDER
The first of these tandem appeals, No. 06-3444-cv, is from a judgment on a jury verdict. The jury concluded, in an action brought under Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e et seq., that the plaintiff Joyce Johnson had not been subjected to a hostile work environment or to unlawful retaliation. That litigation was begun by Johnson’s filing of a complaint in the district court in 1999. The second appeal, No. 07-3311-cv, is from a judgment against Johnson on her claim that in 2000 she was retaliated against for filing the 1999 lawsuit. We assume the parties’ familiarity with the underlying facts and the procedural history of these cases, and the issues on appeal.
With respect to the appeal in No. 06-3444-cv, Johnson argues, first, that it was an abuse of discretion for the district court to discharge one of the jurors during the trial. “During trial or deliberation, the court may excuse a juror for good cause.” Fed.R.Civ.P. 47(c). “We review a district court’s rulings regarding dismissal of jurors for abuse of discretion, and reverse only if there is clear abuse of the district court’s discretion.” Cruz v. Jordan, 357 F.3d 269, 270 (2d Cir.2004) (internal quotation marks omitted).
Beginning on the third day of the trial, May 17, 2006, the defense raised some concerns regarding juror number 7, whom the defense thought, judging by the juror’s body language, was “not approaching this case with an open mind.” Trial Tr. at 282. In response to this and related complaints about the juror by defense counsel, Magistrate Judge Azrack and her law clerk monitored the juror’s behavior. They observed the juror to be inattentive and to seem at times to be asleep. Based on these observations, on May 19, 2006, the court dismissed juror number 7. “[A] court has considerable discretion in deciding how to handle a sleeping juror”; “[i]f sleep by a juror makes it impossible for that juror to perform his or her duties or would otherwise deny the defendant a fair trial, the sleeping juror should be removed from the jury.” United States v. Freitag, 230 F.3d 1019, 1023 (7th Cir.2000); see also United *606States v. Diaz, 176 F.3d 52, 78 (2d Cir.1999) (expressing approval of a district court judge who “from the moment the sleeping juror allegation was raised, investigated the matter and carefully observed the juror in question throughout the trial”). We conclude that the district court did not abuse its discretion in dismissing juror number 7.
Johnson argues second that, in addition to the two counts based on theories of hostile work environment and retaliation on which the court instructed the jury, the court should have instructed the jury to consider a count of intentional racial discrimination, and that the failure to do so constituted a dismissal of the intentional discrimination claim under Federal Rule of Civil Procedure 12(b)(6). The court noted in deciding not to instruct the jury on an intentional discrimination claim that “in almost every one of the paragraphs [in the complaint] it is all couched ... as a hostile work environment.” Trial Tr. at 1016. The court thus apparently read the complaint as not alleging a claim of intentional discrimination, and therefore refused to instruct the jury on it.
“We will reverse the judgment of a trial court because of an error in the jury instructions only if, based on a review of the record as a whole, we are persuaded that the error was prejudicial.” Phelan v. Local 305 of the United Ass’n of Journeymen, & Apprentices of Plumbing & Pipe-fitting Indus., 973 F.2d 1050, 1062 (2d Cir.1992) (internal quotation marks and alterations omitted). It is not clear to us that the district court was correct to confine its inquiry entirely to the language of the complaint. See Cruz v. Coach Stores, Inc., 202 F.3d 560, 568-69 (2d Cir.2000). For the following reasons, however, we conclude that any such error was nonprejudicial inasmuch as Johnson has not made out a prima facie case of intentional discrimination.
In order to establish a prima facie case of intentional discrimination under Title VII, the plaintiff must show, inter alia, that “she suffered an adverse employment action[ ] and ... the circumstances give rise to an inference of discrimination.” Weinstock v. Columbia Univ., 224 F.3d 33, 42 (2d Cir.2000). Johnson points to no evidence indicating that the actions of which she complains were motivated by discrimination. We therefore conclude that any error the court may have made in failing to instruct the jury as to intentional discrimination was harmless.
Addressing the second tandem appeal, “[w]e review a grant of summary judgment die novo,” granting relief only when “there is no genuine issue as to any material fact and the moving party is entitled to judgment as a matter of law.” Graham v. Long Island R.R., 230 F.3d 34, 38 (2d Cir.2000). The district court concluded that Johnson had made out a prima facie case of retaliation for her blunging the 1999 lawsuit, but that she had failed to demonstrate that the defendants’ proffered legitimate non-discriminatory rationale was pretextual. We agree with the district court that Johnson failed to establish that the defendants’ proffered rationale for their actions was a pretext for discrimination.
It is undisputed that an eight-member panel, representing a cross-section of employees from the New York Harbor Healthcare System, engaged in a lengthy evaluation process to rank the candidates for the three available Care Line Manager positions for which Johnson had applied. In the resulting cumulative ranking, Johnson was ranked seventh out of eleven candidates. The first-, third-, and fourth-ranked individuals were ultimately selected by the final decision-maker, Elvira Miller. The defendants therefore assert that the failure to select Johnson was a result *607of a thorough and non-discriminatory selection process in which several candidates were found to be better suited to the position than Johnson. Johnson attempts to refute this rationale by asserting that Miller was heard to say that one of the nurses selected, Rose Brown, was not the most qualified, but was selected for her “potential.” Even if Brown was selected for her potential, that does not help establish that Johnson was better qualified than Brown or that the selection of Brown over Johnson was discriminatory. We therefore affirm the district court’s grant of summary judgment as to this lawsuit.
We have considered Johnson’s other arguments and find them to be without merit.
For the foregoing reasons, the judgments of the District Court are hereby AFFIRMED.
|
01-04-2023
|
11-05-2022
|
https://www.courtlistener.com/api/rest/v3/opinions/8473346/
|
SUMMARY ORDER
Plaintiff-appellant appeals a September 29, 2008, 2008 WL 4449382, judgment of the District Court entered after a jury returned a verdict in favor of defendants. *609Plaintiff brought this action under 42 U.S.C. § 1983 alleging that defendants violated the U.S. Constitution and New York law by removing her five children and three grandchildren from her custody without a court order and by pursuing an abuse and neglect petition against plaintiff in the Family Court of the State of New York.
On appeal, plaintiff argues that the District Court erred by (1) declining to enter judgment as a matter of law or to grant a new trial, see Fed.R.Civ.P. 50, 59; (2) granting judgment as a matter of law to defendants on plaintiffs municipal liability claim pursuant to Monell v. Department of Social Services, 436 U.S. 658, 98 S.Ct. 2018, 56 L.Ed.2d 611 (1978); (3) granting judgment as a matter of law to defendants on plaintiffs malicious prosecution claim; and (4) declining to permit plaintiffs expert witness to testify.
First, after a careful review of the trial record, we agree with the District Court’s decision not to grant judgment as a matter of law to plaintiff. “We review a district court’s ruling on a Rule 50 motion de novo, and apply the same standard used by the district court below.” Cobb v. Pozzi, 363 F.3d 89, 101 (2d Cir.2004). We affirm the judgment entered by the District Court because there was a “legally sufficient evidentiary basis for a reasonable jury to find” for defendants on all issues. Id. (internal quotation marks omitted). We also agree with the District Court’s decision not to grant a new trial because we do not conclude that the jury “reached a seriously erroneous result” or that its verdict was “a miscarriage of justice.” Nimely v. City of New York, 414 F.3d 381, 392 (2d Cir.2005) (internal quotation marks omitted).
Second, we agree with the District Court that judgment as a matter of law for defendants was proper with respect to plaintiffs Monell claim. See Special App. 215 (Tr. 1046). Plaintiff did not provide sufficient evidence that a “policy or custom” of the City of New York caused the alleged constitutional violation. Monell, 436 U.S. at 694, 98 S.Ct. 2018.
Third, we agree with the District Court that judgment as a matter of law for defendants was proper with respect to plaintiffs malicious prosecution claim. Plaintiff did not provide evidence from which a reasonable jury could infer that the Family Court proceedings were “begun in malice,” a necessary element of a malicious prosecution claim. See, e.g., Engel v. CBS, Inc., 182 F.3d 124, 131 (2d Cir.1999) (per curiam).
Finally, we review for abuse of discretion the District Court’s decision not to allow plaintiffs expert to testify. Nimely, 414 F.3d at 393. “A district court has abused its discretion if it [has] based its ruling on an erroneous view of the law or on a clearly erroneous assessment of the evidence, or rendered a decision that cannot be located within the range of permissible decisions.” Sims v. Blot, 534 F.3d 117, 132 (2d Cir.2008) (citation, alteration, and quotation marks omitted). The District Court’s decision not to permit plaintiffs expert to testify was, in the circumstances presented, well within the range of permissible decisions.
We have considered plaintiffs remaining arguments on appeal and find them to be without merit.
CONCLUSION
For the reasons set forth above, the September 29, 2008 judgment of the District Court is AFFIRMED.
|
01-04-2023
|
11-05-2022
|
https://www.courtlistener.com/api/rest/v3/opinions/8473348/
|
SUMMARY ORDER
Defendants Osman Ozsusamlar (“Osman”) and his father Mustafa Ozsusamlar (“Mustafa”) were convicted of conspiracy to commit murder for hire, murder for hire, and conspiracy to commit extortion. On appeal, Osman argues, inter alia, that: (1) there was insufficient evidence to convict him for conspiracy to commit extortion, and (2) prosecutorial misconduct in the State’s rebuttal summation deprived him of a fair trial. On appeal, Mustafa argues that: (1) the court violated his rights under the Confrontation Clause by finding that the government made a good faith effort to locate missing witnesses and then allowing into evidence prior testimony of those witnesses, and (2) he was denied effective assistance of counsel when his lawyer failed to object to the government’s assertion that the witnesses were unavailable.
We review each of these four claims seriatim. We assume the parties’ familiarity with the underlying facts, the procedural history, and the issues presented for review.
[1] Osman first argues that there was insufficient evidence to convict him for conspiracy to commit extortion because there was no evidence that he knew that his father contemplated a kidnapping as a means of inducing the Batkas to repay money allegedly owed to him.
This challenge assumes that the government’s extortion theory was based entirely on the defendants’ plot to kidnap the Bat-kas’s two children. But Osman was not charged with conspiracy to commit kidnapping, and the government’s argument was not limited to extortion by kidnapping. Rather, the government’s theory was that the defendants conspired to use threatened or actual force to induce the Batkas to repay their debt. The government presented more than sufficient evidence to support a conviction on this theory.
[2] Osman’s second argument is that the prosecutor engaged in misconduct during rebuttal summation by attacking the integrity of the defense attorneys and by distorting what defense attorneys argued and the evidence on which they relied.
Prosecutors are afforded “‘broad latitude in the inferences [they] may reasonably suggest to the jury during summation.’ ” United States v. Zackson, 12 F.3d 1178, 1183 (2d Cir.1993) (quoting United States v. Casamento, 887 F.2d 1141, 1189 (2d Cir.1989)). Under the “invited response” doctrine, “defense argument may, in a proper case, ‘open the door’ to otherwise inadmissible prosecution rebuttal.” United States v. Rivera, 971 F.2d 876, 883 (2d Cir.1992); see also United States v. Robinson, 485 U.S. 25, 33-34, 108 S.Ct. 864, 99 L.Ed.2d 23 (1988). This is because prosecutors must be allowed to offer “legitimate responses” to defense arguments raised during summation. See Rivera, 971 F.2d at 883; see also United States v. Thai, 29 F.3d 785, 807 (2d Cir.1994); United States v. Praetorius, 622 F.2d 1054, 1060-61 (2d Cir.1979).
“[A] criminal conviction is not to be lightly overturned on the basis of a prosecutor’s comments standing alone, for the *612statements or conduct must be viewed in context.” United States v. Young, 470 U.S. 1, 11, 105 S.Ct. 1038, 84 L.Ed.2d 1 (1985). We will vacate a conviction on grounds of prosecutorial misconduct only if “the statements, viewed against the ‘entire argument before the jury,’ deprived the defendant of a fair trial.” United States v. Wilkinson, 754 F.2d 1427, 1435 (2d Cir.1985) (quoting United States v. Socony-Vacuum Oil Co., 310 U.S. 150, 242, 60 S.Ct. 811, 84 L.Ed. 1129 (1940)). In keeping with this rule, vacatur is required only where the prosecutor’s conduct “amounted to prejudicial error.” Young, 470 U.S. at 12, 105 S.Ct. 1038. But “where prosecutors have responded reasonably in closing argument to defense counsel’s attacks,” it is “unlikely that the jury was led astray,” and vacatur is not generally required. Id.
The prosecutor’s comments in rebuttal summation were aimed at rebutting defense arguments. The defense had argued, for example, that the government did not care about the truth of its witnesses’ testimony and wanted its principal prosecution witness to “say whatever it takes to convict these two defendants.” Against that backdrop, the prosecutor’s comments in rebuttal summation do not constitute misconduct. We have previously upheld prosecution comments remarkably similar to those at issue on this appeal. See, e.g., United States v. Caputo, 808 F.2d 963, 968-69 (2d Cir.1987); United States v. Marrale, 695 F.2d 658, 666-67 & n. 9 (2d Cir.1982); United States v. Perry, 643 F.2d 38, 51 (2d Cir.1981).
[3] Mustafa challenges the district court’s finding that the government made a good faith effort to locate two missing witnesses, and the subsequent admission into evidence of those two witnesses’ prior testimony.
The Confrontation Clause affords a criminal defendant the right “to be confronted with the witnesses against him.” U.S. Const. amend. VI. It permits the introduction of prior testimony against a criminal defendant if the witness is unavailable and the defendant had a prior opportunity to cross-examine the witness. See Crawford v. Washington, 541 U.S. 36, 68, 124 S.Ct. 1354, 158 L.Ed.2d 177 (2004).
“For purposes of the confrontation clause, a declarant is unavailable when the declarant is absent ‘despite good-faith efforts undertaken prior to trial to locate and present that witness.’ ” United States v. Casamento, 887 F.2d 1141, 1169 (2d Cir.1989) (quoting Ohio v. Roberts, 448 U.S. 56, 74, 100 S.Ct. 2531, 65 L.Ed.2d 597 (1980)). Whether government efforts constitute “good-faith” is “a question of reasonableness.” Id.; see also Roberts, 448 U.S. at 74, 100 S.Ct. 2531.
Here, the government’s efforts were reasonable and in good faith. It looked for the witnesses in the United States, but learned that they were likely in Turkey. It contacted the FBI’s legal attaché in Turkey seeking its assistance. And the attaché in turn obtained the assistance of Turkish law enforcement officials.
Mustafa next argues that his counsel was constitutionally ineffective under Strickland v. Washington, 466 U.S. 668, 687, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984), because he failed to object to the government’s unavailability argument. However, trial counsel is not constitutionally ineffective when it fails to object to the introduction of admissible evidence. United States v. Diaz, 176 F.3d 52, 113 (2d Cir.1999); United States v. Brooks, 82 F.3d 50, 53-54 (2d Cir.1996); United States v. Boothe, 994 F.2d 63, 68-69 (2d Cir.1993).
Finding no merit in either defendant’s remaining arguments, we hereby AFFIRM the judgment of the district court.
|
01-04-2023
|
11-05-2022
|
https://www.courtlistener.com/api/rest/v3/opinions/8473350/
|
SUMMARY ORDER
Plaintiff, John Lambrinos, and defendant, Donald Gagnier, appeal from a judgment entered June 29, 2007 in the United States District Court for the Northern District of New York (Hurd, J.). Sua sponte and on defendant Exxon Mobil’s motion for summary judgment and defendant Gagnier’s order to show cause, the district court dismissed all claims and cross-claims. We assume the parties’ familiarity with the underlying facts, the procedural history, and the issues presented for review.
On appeal, Lambrinos argues that the district court erred by dismissing his claims against Gagnier for lack of “standing.” Lambrinos also argues, as assignee of Exxon Mobil’s cross-claims against Gag-nier, that the district court erred by dismissing the assigned cross-claims for statutory contribution. Gagnier argues that the district court erred by dismissing his cross-claim against Exxon Mobil for damages under the New York Navigation Law. We have considered Lambrinos’ and Gag-nier’s arguments and find that they warrant partial vacatur and remand.
1. Lambrinos’ claims against Gagnier were improperly dismissed by the district court for lack of “standing.” While the district court’s legal basis for this dismissal is somewhat unclear, the issue is, properly understood, one concerning the real party in interest. The assignment was sufficient to render Lambrinos the real party in interest for purposes of Rule 17(a) of the Federal Rules of Civil Procedure. See Rosenblum v. Dingfelder, 111 F.2d 406, 407 (2d Cir.1940); see also, Dubuque Stone Prods. Co. v. Fred L. Gray Co., 356 F.2d 718, 723-24 (8th Cir.1966) (holding assignment after commencement of action sufficient to satisfy Rule 17); Kilbourn v. W. Sur. Co., 187 F.2d 567, 571 (10th Cir.1951) (same). Moreover, the preferable course is to cure any Rule 17 defects by granting leave to amend, rather than to dismiss the affected claims. See Fed.R.Civ.P. 17(a)(3); Advanced Magnetics, Inc. v. Bayfront Partners, Inc., 106 F.3d 11, 20 (2d Cir.1997) (holding that, even though district court retains discretion despite Rule 17(a)(3) to dismiss an action for failure to commence in the name of the real party in interest, “substitution ... should be liberally allowed when the change is merely formal and in no way alters the original complaint’s factual allegations as to the events or the participants”).
2. Exxon Mobil’s cross-claims against Gagnier (assigned to Lambrinos) for statutory contribution were improper*615ly dismissed. In its responsive pleadings, Exxon Mobil asserted both common law and statutory cross-claims for contribution. The district court dismissed the statutory cross-claims on the basis of Exxon Mobil’s previously established status as a “discharger” and dismissed its common law cross-claim on the basis of “the expressed provisions of the General Obligations Law.” On appeal, Lambrinos appears to contest only dismissal of the statutory claims: He cites only cases discussing statutory contribution claims and makes only statutory arguments. Accordingly, we review the district court’s ruling only insofar as it dismissed Exxon’s Mobil’s statutory contribution claims. Under neither § 181(5) nor § 176(8) of the New York Navigation Law is Exxon Mobil’s status as a “discharger” — as defined in § 181(1) of the New York Navigation Law — alone sufficient to bar its recovery. See Booth Oil Site Admin. Group v. Safety Kleen Corp., 532 F.Supp.2d 477, 511 (W.D.N.Y.2007). Dismissal of Exxon Mobil’s cross-claims for statutory contribution on the ground that it was a “dischar-ger” was accordingly erroneous.
3. Gagnier’s cross-claim against Exxon Mobil for damages under § 181(5) of the New York Navigation Law was improperly dismissed. Exxon Mobil failed to raise a statute of limitations defense to Gagnier’s cross-claim in its responsive pleadings, raising it for the first time in its January 5, 2007 motion for summary judgment. Though a district court has the discretion to consider an otherwise forfeited statute of limitations defense when deciding a motion for summary judgment, Block v. First Blood Assocs., 988 F.2d 344, 350 (2d Cir.1993), it is unclear that the district court affirmatively decided to exercise that discretion; no rationale is stated with sufficient particularity to permit review. In such circumstances, its consideration of the defense was an abuse of discretion. See Stone v. Nat’l Bank & Trust Co., No. 92-cv-211, 1996 WL 310351, at *1 (N.D.N.Y. June 6, 1996) (considering statute of limitations defense raised for the first time at summary judgment upon a finding that no prejudice resulted); Steinberg v. Columbia Pictures Indus., Inc., 663 F.Supp. 706, 715 (S.D.N.Y.1987) (“ ‘[Absent prejudice to the plaintiff, a defendant may raise an affirmative defense in a motion for summary judgment for the first time.’ ”) (emphasis added; alterations in original) (quoting Rivera v. Anaya, 726 F.2d 564, 566 (9th Cir.1984)).
Insofar as the district court’s ruling was premised on discovery violations, the ruling was similarly an abuse of discretion. Though a district court has “ ‘wide discretion’ in imposing sanctions” for discovery violations, Shcherbakovskiy v. Da Capo Al Fine, Ltd., 490 F.3d 130, 135 (2d Cir.2007) (quoting Daval Steel Prods. v. M/V Fakredine, 951 F.2d 1357, 1365 (2d Cir.1991)), the district court’s decision to exercise that discretion here was stated with insufficient particularity to permit review. The district court made no factual findings regarding Gagnier’s purported violations, and no consideration of lesser sanctions appears in the record. In such circumstances, the district court’s ruling was an abuse of discretion. See id. at 135-40.
For the foregoing reasons, the judgment of the district court is hereby VACATED IN PART, insofar as it dismissed Lambri-nos’ claims, Exxon Mobil’s statutory cross-claims for contribution, and Gagnier’s statutory cross-claim for damages, and REMANDED to the district court for further proceedings consistent with this Order.
|
01-04-2023
|
11-05-2022
|
https://www.courtlistener.com/api/rest/v3/opinions/8473354/
|
SUMMARY ORDER
Petitioner Yun Xia Zheng, a native and citizen of the People’s Republic of China, seeks review of the February 11, 2008, order of the BIA denying her motion to reopen and reconsider. In re Yun Xia Zheng, No. A078 859 914 (B.I.A. Feb. 11, 2008). We assume the parties’ familiarity with the underlying facts and procedural history of the case.
A motion to reconsider must specify errors of fact or law in the challenged BIA decision and be supported by pertinent authority. 8 C.F.R. § 1003.2(b)(2); Jian Hui Shao v. Mukasey, 546 F.3d 138, 173 (2d Cir.2008). To the extent that Zheng sought reconsideration of that portion of the BIA’s September 2007 decision that denied her first motion to reopen, the BIA did not abuse its discretion by denying Zheng’s motion to reconsider based on her failure to identify such errors of fact or law. See Jian Hui Shao, 546 F.3d at 173. Zheng never specifically identified the errors of fact and law that the BIA allegedly made in denying her first motion to reopen, but rather rehashed the arguments that she had presented to the agency on appeal and in support of her first motion. See id. To the extent that Zheng sought reconsideration of that portion of the BIA’s decision that denied her first motion to reconsider, the regulations prohibit an applicant from seeking reconsideration of a decision denying a previous motion to reconsider. See 8 C.F.R. § 1003.2(b)(2).
The BIA also did not abuse its discretion in denying Zheng’s motion to *621reopen. An alien may file only one motion to reopen, and that motion must be filed no later than 90 days after the date on which the final administrative decision was rendered in the proceeding sought to be reopened. 8 U.S.C. § 1229a(c)(7); 8 C.F.R. § 1003.2(c)(2). An applicant may be excused from compliance with the time and numerical limitations on motions to reopen if she submits evidence establishing “changed country conditions arising in the country of nationality.” 8 U.S.C. § 1229a(c)(7)(C)(ii); 8 C.F.R. § 1003.2(c)(3)(h). Such a motion shall not be granted unless it appears that the evidence offered in support of the motion “is material and was not available and could not have been discovered or presented” at the previous hearing. 8 C.F.R. § 1003.2(c)(1).
The primary piece of documentary evidence that Zheng submitted in support of her motion to reopen was a letter, purportedly from the Xiyuan Village Committee, which stated that the government was aware of the birth of Zheng’s two children in the United States and of her continued involvement in Falun Gong and ordered her to return to China and report for sterilization. The BIA reasonably declined to give any weight to this document, finding it of “questionable authenticity” given the IJ’s unrefuted adverse credibility determination in the underlying proceedings. See Qin Wen Zheng v. Gonzales, 500 F.3d 143, 147-48 (2d Cir.2007). A prior adverse credibility determination can undermine a motion to reopen, particularly when the evidence submitted in support of the motion does not bear independent indicia of authenticity and thus hinges on the applicant’s credibility. See id. Documents submitted in support of a motion to reopen cannot constitute “material” evidence when they fail to overcome or rebut a prior negative credibility finding. See id.; Kaur v. BIA, 413 F.3d 232, 234 (2d Cir.2005).
Zheng argues that the BIA erred in discounting her documentary evidence based on the IJ’s adverse credibility determination because, ultimately, that determination was flawed. However, this argument is fundamentally a challenge to the IJ’s decision in the underlying proceedings, and that decision is not properly before this Court. See Ke Zhen Zhao v. U.S. Dep’t of Justice, 265 F.3d 83, 89-90 (2d Cir.2001). Accordingly, Zheng’s challenge to the BIA’s rejection of her documentary evidence on credibility grounds is merit-less. See Qin Wen Zheng, 500 F.3d at 147-48.
Finally, Zheng argues that her case should be remanded to the BIA for an assessment of whether the background materials that she submitted, which included the 2007 U.S. Department of State Country Report on Human Rights Practices for China, and two administrative decisions from Fujian Province related to an individual other than Zheng, met the requirement for reopening under this Court’s decision in Jian Hui Shao, 546 F.3d at 139-40. However, in that case, we reviewed the same evidence that Zheng submitted and evidence similar to it and found no error in the BIA’s conclusion that such evidence was insufficient to establish either the existence of changed country conditions in China or the alien’s prima facie eligibility for asylum. See id. at 169-72.
For the foregoing reasons, the petition for review is DENIED. As we have completed our review, any stay of removal that the Court previously granted in this petition is VACATED, and any pending motion for a stay of removal in this petition is DISMISSED as moot. Any pending request for oral argument in this petition is DENIED in accordance with Federal Rule *622of Appellate Procedure 34(a)(2), and Second Circuit Local Rule 34(b).
|
01-04-2023
|
11-05-2022
|
https://www.courtlistener.com/api/rest/v3/opinions/8473356/
|
SUMMARY ORDER
Petitioner, Xiu Fang Zheng, a native and citizen of the People’s Republic of China, seeks review of a December 3, 2007 order of the BIA denying her motion to reopen her removal proceedings and affirming the August 26, 2004 decision of immigration judge (“IJ”) Roxanne C. Hladylowycz denying Zheng’s applications for asylum, withholding of removal, and relief under the Convention Against Torture (“CAT”). In re Xiu Fang Zheng, No. A079 408 005 (B.I.A. Dec. 3, 2007), aff'g A079 408 005 (Immig. Ct. N.Y. City Aug. 26, 2004). We assume the parties’ familiarity with the underlying facts and procedural history of the case.
As an initial matter, Zheng requests that this Court take administrative notice of the U.S. Department of State’s 2006 and 2007 Country Reports on Human Rights Practices for China. We deny that request. See 8 U.S.C. § 1252(b)(4)(A); Xiao Xing Ni v. Gonzales, 494 F.3d 260, 269-70 (2d Cir.2007).
1. Asylum, Withholding of Removal, and CAT Relief
When the BIA adopts the decision of the IJ and supplements the IJ’s decision, this Court reviews the decision of the IJ as supplemented by the BIA. See Yan Chen v. Gonzales, 417 F.3d 268, 271 (2d Cir.2005). This Court reviews the agency’s factual findings under the substantial evidence standard. See 8 U.S.C. § 1252(b)(4)(B); see also Manzur v. U.S. Dep’t of Homeland, Sec., 494 F.3d 281, 289 (2d Cir.2007). We review de novo questions of law and the application of law to undisputed fact. See Salimatou Bah v. Mukasey, 529 F.3d 99, 110 (2d Cir.2008).
Zheng argues that she demonstrated a well-founded fear of persecution based on her practice of Falun Gong because the Chinese government is aware of her practice and the U.S. Department of State’s 2002 Country Report on Human Rights Practices for China indicates that the Chinese government engages in a “harsh and comprehensive campaign” against Falun Gong practitioners.2 We find no error, however, in the agency’s denial of her asylum application. The BIA properly found that police have not visited her parents’ home to look for her since October 2001 and that her parents were never harmed or threatened during their encounters with police. Although the Department of State report indicates that some Falun Gong practitioners are subject to severe mistreatment, the report also indicates that an individual’s treatment correlates with the level of participation. Zheng’s participation in Falun Gong in China was limited; the government has not expressed an interest in her in more than six years; and her parents were not harmed or threatened in their prior encounters with police. The record thus supports the BIA’s finding that Zheng did not establish a well-founded fear of persecution. See Jian Xing Huang v. INS, 421 F.3d 125, 128-29 (2d Cir.2005) (per curiam) (holding that, absent solid support in the record for the petitioner’s assertion that he would be persecuted, his fear was “speculative at best”).3
*624Because Zheng was unable to show the objective likelihood of persecution needed to make out an asylum claim, she was necessarily unable to meet the higher standard required to succeed on a claim for withholding of removal or CAT relief because the three claims rest on the same factual predicate. See Paul v. Gonzales, 444 F.3d 148, 156 (2d Cir.2006); Kyaw Zwar Tun v. INS, 445 F.3d 554, 567 (2d Cir.2006) (holding that torture is “something more severe than the kind of treatment that would suffice to prove persecution”).
II. Motion to Reopen
We review the BIA’s denial of a motion to reopen for abuse of discretion. Ali v. Gonzales, 448 F.3d 515, 517 (2d Cir.2006) (per curiam). When the BIA considers relevant evidence of country conditions in evaluating a motion to reopen, we review the BIA’s factual findings under the substantial evidence standard. See Jian Hui Shao v. Mukasey, 546 F.3d 138, 169 (2d Cir.2008).
The BIA did not abuse its discretion in denying Zheng’s motion to reopen because she failed to demonstrate her prima facie eligibility for relief. We have previously reviewed the BIA’s consideration of evidence similar to the evidence Zheng submitted, and have found no error in its conclusion that such evidence was insufficient to establish material changed country conditions or an objectively reasonable fear of persecution. See id. at 171 (noting that “[w]e do not ourselves attempt to resolve conflicts in record evidence, a task largely within the discretion of the agency”); see also Wei Guang Wang v. BIA, 437 F.3d 270, 275 (2d Cir.2006) (noting that while the BIA must consider evidence such as “the oft-cited Aird affidavit, which [it] is asked to consider time and again[,] ... it may do so in summary fashion without a reviewing court presuming that it has abused its discretion”). Nothing in the record compels us to conclude that the BIA ignored the evidence Zheng submitted or the arguments she made, evidence and arguments the BIA is asked to consider time and again. See Xiao Ji Chen v. U.S. Dep’t of Justice, 471 F.3d 315, 338 n. 17 (2d Cir.2006). Contrary to Zheng’s assertion, the BIA did not abuse its discretion when it discounted the significance of a document purporting to be a 2006 notice issued by the Fujian Province family planning authorities; the document bears fax dates from 2001 and 2005. See id. at 342 (finding that the weight afforded to the applicant’s evidence in immigration proceedings lies largely within the discretion of the agency).
For the foregoing reasons, the petition for review is DENIED. As we have completed our review, any pending motion for a stay of removal in this petition is DISMISSED as moot. Any pending request for oral argument in this petition is DENIED in accordance with Federal Rule of Appellate Procedure 34(a)(2), and Second Circuit Local Rule 34(b).
. Because Zheng failed to challenge the IJ’s finding that she did not demonstrate past persecution either before the BIA or this Court, we deem any such challenge abandoned. See Gui Yin Liu v. INS, 508 F.3d 716, 723 n. 6 (2d Cir.2007).
. Contrary to the government’s argument, Zheng has never made a pattern or practice claim.
|
01-04-2023
|
11-05-2022
|
https://www.courtlistener.com/api/rest/v3/opinions/8473358/
|
SUMMARY ORDER
Defendant Ranier Gerow (“Gerow” or “defendant”) appeals from a judgment of the District Court sentencing him principally to 240 months’ incarceration following his guilty plea to distribution of child pornography in violation of 18 U.S.C. § 2252(a)(2). On appeal defendant argues the following: (1) the District Court improperly applied enhancements for relevant conduct, (2) his sentence was based on mistaken assumptions of fact, (3) the District Court gave excessive deference to the United States Sentencing Guidelines (“U.S.S.G.” or “Guidelines”), (4) the District Court erred in failing separately to justify the imposition of a life term of supervised release, (5) the District Court imposed an unconstitutional special condition restricting defendant’s contact with his children, and (6) defendant’s sentencing counsel was ineffective for failing, inter alia, to argue that the Guidelines for child pornography are entitled to less deference based on Kimbrough v. United States, 552 U.S. 85, 128 S.Ct. 558, 169 L.Ed.2d 481 (2007). We assume the parties’ familiarity with the factual and procedural history of the case.
I. The District Court’s Purported Errors
Defendant argues that the District Court erred procedurally in determining his sentence. Procedural error occurs where the District Court makes a mistake in calculating the Guidelines range, treats the Guidelines as mandatory, fails to consider the factors listed in 18 U.S.C. § 3553(a), rests its sentence on clearly erroneous findings of fact, or fails adequately to explain its chosen sentence. See United States v. Cavera, 550 F.3d 180, 190 (2d Cir.2008) (en banc). “Where, as here, a defendant has failed to object to an alleged sentencing impropriety on the record in the district court, we review for plain error, requiring the defendant to establish (1) error, (2) that is plain, and (3) that affects substantial rights.” United States v. Fuller, 426 F.3d 556, 563 (2d Cir.2005) (internal quotation marks omitted). “An error is ‘plain’ if it is ‘clear’ or ‘obvious’ at the time of appellate consideration.” United States v. Thomas, 274 F.3d 655, 667 (2d Cir.2001) (en banc).
Defendant first argues that the District Court erred in imposing two enhancements for “relevant conduct.” Relying on United States v. Fowler, 216 F.3d 459 (5th Cir.2000), he contends that the District Court improperly applied a four-level enhancement for the possession of sadistic or masochistic images. Whether or not the enhancement was error, it certainly was not plain error because it did not, standing alone, prejudice the defendant. See Thomas, 274 F.3d at 668 (“An error affects a defendant’s substantial rights if it is prejudicial and it affected the *627outcome of the district court proceedings.” (internal quotation marks omitted)). Even without the four-level enhancement, defendant’s Guidelines range would have been 292-365 months — ie., well above the maximum statutory sentence of 20 years that he received.
Nor did the District Court err in imposing a five-level enhancement for defendant’s possession of over 600 images depicting child pornography. It is undisputed that on several occasions defendant sent images to individuals he believed to be minors in an effort to entice them to engage in sexual acts with him. Accordingly, there was sufficient evidence from which the District Court could conclude that defendant’s possession of child pornography was part of a common scheme or plan, or part of the same course of conduct, as his distribution of the same. See U.S.S.G. § 1B1.3(a)(2) (including within the definition of “Relevant Conduct” all acts and omissions “that were part of the same course of conduct or common scheme or plan as the offense of conviction”).
Defendant next argues that the District Court based its sentence on erroneous findings of fact. We disagree. The District Court’s suggestion that defendant’s failure to take his medication might be relevant to the risk of recidivism is supported by the report of Dr. Charles Patrick Ewing, which directly linked defendant’s criminal conduct to his mental illness and indicated that medication would help control that illness. The District Court’s finding that defendant is a “pedophile” appears to have been based primarily on a misunderstanding of the medical meaning of that word rather than a misapprehension of the facts of the case. Moreover, nothing in the record suggests that this finding played any role in the District Court’s determination of an appropriate sentence.
Defendant’s third argument is that the District Court gave excessive deference to the Guidelines and did not fully appreciate its discretion to impose a variant sentence. Defendant relies on Judge Skretny’s statements that defendant’s personal history and characteristics did not demonstrate anything “extraordinary” or take this case “outside the heartland.” At other times during the sentencing hearing Judge Skretny noted that “I must consider the discretionary factors and make an individualized assessment based on the facts presented in deciding whether to deviate from the guideline range” and that “I am prepared to exercise the discretion that I have under the law to consider all of the submissions as well as whatever appropriate discretionary factors there are before I make a final decision on sentencing.” J.A. 158-59. Viewed in their totality, Judge Skretny’s statements indicate that he fully understood his discretion under the Guidelines and did not give them undue deference.
Defendant next argues that the District Court erred in imposing a life term of supervised release inasmuch as it did not independently consider the sentencing factors as they relate to this portion of the sentence and did not independently justify this portion of the sentence. Although 18 U.S.C. § 3553(a) requires the District Court to consider a number of factors in arriving at a sentence, and 18 U.S.C. § 3553(c) requires the District Court to state the reasons for the imposition of a particular sentence, nothing in this Section or any other statute requires the court separately to justify each component of a sentence. Accordingly, there was no error in the District Court’s decision to impose a life term of supervised release.
Finally, defendant argues that the District Court imposed an unconstitutional special condition of release by restricting *628his ability to have contact with his own children. The government responds that the District Court intended only to restrict defendant’s ability to pick his children up from school or other locations frequented by minors. We agree with the government’s interpretation of the condition and note that, in any event, as defendant’s counsel conceded at argument, our affir-mance of the District Court’s sentence effectively renders the special condition moot because defendant will not be released from custody while his children are minors.
Accordingly, we find no error in the District Court’s determination of defendant’s sentence.
II. Ineffective Assistance of Counsel
In addition to arguing that the District Court erred in determining his sentence, defendant also maintains that his sentencing counsel was ineffective for failing to make a number of objections and arguments. To prevail on a claim of ineffective assistance of counsel under Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984), defendant “must (1) demonstrate that his counsel’s performance fell below an objective standard of reasonableness ... and (2) affirmatively prove prejudice arising from counsel’s allegedly deficient representation.” Carrion v. Smith, 549 F.3d 583, 588 (2d Cir.2008) (internal quotation marks omitted).
Aside from failing to object to the District Court’s purported errors discussed above, defendant argues primarily that his sentencing counsel was ineffective for failing to make an argument, based on Kim-brough, 128 S.Ct. 558, that the child pornography Guidelines are entitled to less deference because they are a product of political interference. Although defendant points to a number of recent cases in which courts have extended the logic of Kimbrough to the child pornography guidelines, only two of those cases had been decided at the time of his sentencing. See United States v. Grossman, 513 F.3d 592, 597-98 (6th Cir.2008); United States v. Baird, 580 F.Supp.2d 889, 894 (D.Neb.2008). Moreover, in one of those cases, the Court emphasized that “[t]he extent to which a district court may offer a wholesale disagreement with a guideline as the basis for a variance remains unclear after Kimbrough.” Grossman, 513 F.3d at 597 (emphasis added).
Defendant’s sentencing counsel was not objectively unreasonable in failing to anticipate the extension of Kimbrough or in failing to cite non-binding precedent from other jurisdictions. See Sellan v. Kuhlman, 261 F.3d 303, 315 (2d Cir.2001) (“An attorney is not required to forecast changes or advances in the law.” (internal quotation marks omitted)). Based on the state of the law at the time of Gerow’s sentencing, it would have been reasonable for counsel to conclude that his energy was better spent arguing that Gerow’s specific circumstances justified a below-Guidelines sentence.
Defendant also argues that his sentencing counsel was ineffective in failing to correct Judge Skretny’s misstatement that there were no objections to the Presen-tence Report. Defendant had, in fact, made two objections, one of which concerned the reasons for his decision to stop taking his medication. The District Court cited defendant’s failure to take his medication as a factor that might increase the likelihood of recidivism and, as discussed above, that conclusion finds support in Dr. Ewing’s report. We have no reason to believe that the reason for defendant’s failure to take his medication would have altered the District Court’s conclusion. Accordingly, defendant has not shown that counsel’s failure to raise this objection at *629sentencing — whether reasonable or not— resulted in prejudice.
Accordingly, we conclude that defendant has not shown that his sentencing counsel rendered ineffective assistance.
CONCLUSION
For the foregoing reasons, the judgment of the District Court is AFFIRMED.
|
01-04-2023
|
11-05-2022
|
https://www.courtlistener.com/api/rest/v3/opinions/8473360/
|
SUMMARY ORDER
Plaintiff-Appellant Michael Hammond appeals from the decision of the United States District Court for the Eastern District of New York (Spatt, J.), entered May 15, 2009, granting summary judgment to Defendants-Appellees Keyspan Energy and National Grid (“Keyspan”). On appeal, Hammond argues that the District Court erred in finding that the summary judgment evidence could not support a claim under the Americans with Disabilities Act (“ADA”), 42 U.S.C. § 12101 et seq. We assume the parties’ familiarity with the underlying facts, procedural history, and specification of the issues on appeal.
We review the grant of summary judgment on appeal de novo. Howley v. Town of Stratford, 217 F.3d 141, 151 (2d Cir.2000). Summary judgment is appropriate when, after all evidence is construed in the light most favorable to the non-moving party, there is no genuine issue of material fact. June v. Town of Westfield, 370 F.3d 255, 257 (2d Cir.2004). To establish a claim of discrimination based on disability, a plaintiff must show that “(1) his employer is subject to the ADA; (2) he was disabled within the meaning of the ADA; (3) he was otherwise qualified to perform the essential functions of his job, with or without reasonable accommodation; and (4) he suffered [an] adverse employment action because of his disability.” Cameron v. Cmty. Aid for Retarded Children, Inc., 335 F.3d 60, 63 (2d Cir.2003) (alteration in original).
The ADA bars covered entities from “diseriminat[ing] against a qualified individual on the basis of disability.” 42 U.S.C. § 12112. “Disability” under the ADA includes physical or mental impair-*631merits that substantially limit one or more of an individual’s major life activities; an individual may also qualify as disabled when “regarded as” having such an impairment. Id. § 12102(1)(A), (C). Whether an individual is “regarded as” having a disability is a question of the employer’s intent; rather than whether the employee actually has a disability. Colwell v. Suffolk County Police Dep’t, 158 F.3d 635, 646 (2d Cir.1998). In order to prevail on a “regarded as” claim, a plaintiff must show that his employer regarded him as having an impairment that substantially limited a major life activity. Id. When the major life activity in question is working, the plaintiff must be perceived as unable to perform a “broad class of jobs.” Giordano v. City of New York, 274 F.3d 740, 749-50 (2d Cir.2001) (internal quotation marks omitted).
Hammond has failed to produce evidence to show that Keyspan regarded him as being disabled within the meaning of the ADA. Hammond has failed to show that his employer regarded him as suffering from alcoholism or as being unable to perform a broad class of jobs. Keyspan continued to employ Hammond after he violated the company’s drug policy in November 2001, and it rehired him pursuant to its standard procedure after his termination for the violation at issue, moving him to first class lineman after a year as a splicer. There is no evidence in the record that Hammond possessed or used alcohol during working hours on any occasion pri- or to May 18, 2005, nor has Hammond offered evidence suggesting that Keyspan regarded him as suffering from alcoholism at that time. Indeed, his supervisors permitted Hammond to remain in a safety-sensitive job during the period prior to May 18 and, in fact, they promoted him to foreman. Although Hammond alleges that manager Patrick Noonan informed supervisor Michael Abrams that “Mr. Hammond had a drug and alcohol abuse problem” prior to May 18, Appellant’s Br. 21, the deposition testimony cited by Hammond actually indicates that Noonan simply told Abrams that Hammond had violated the corporate alcohol and drug policy on a previous occasion, a true statement. Given the evidence produced, we therefore conclude that the district court did not err in dismissing Hammond’s ADA claim.
All arguments not otherwise discussed in this summary order are found to be moot or without merit.
For the foregoing reasons, the judgment of the district court is hereby affirmed.
|
01-04-2023
|
11-05-2022
|
https://www.courtlistener.com/api/rest/v3/opinions/8473364/
|
SUMMARY ORDER
Petitioner Chuan Zhi Wang, a native and citizen of the People’s Republic of China, seeks review of the January 30, 2009 order of the BIA affirming the November 1, 2006 decision of Immigration Judge (“IJ”) Sandy K. Horn denying his applications for asylum, withholding of removal, and relief under the Convention Against Torture (CAT). In re Chuan Zhi Wang, No. A099 538 159 (B.I.A. Jan. 30, 2009), aff'g No. A099 538 159 (Immig. Ct. N.Y. City Nov. 1, 2006). We assume the parties’ familiarity with the underlying facts and procedural history of the case.
We review the agency’s factual findings, including adverse credibility determinations, under the substantial evidence standard. 8 U.S.C. § 1252(b)(4)(B); see Dong Gao v. BIA, 482 F.3d 122, 126 (2d Cir.2007). We review de novo questions of law and the application of law to undisputed *636fact. See Salimatou Bah v. Mukasey, 529 F.3d 99, 110 (2d Cir.2008).
The agency’s adverse credibility finding is supported by substantial evidence. Because Wang’s application was filed after May 11, 2005, the amendments made to the Immigration and Nationality Act by the REAL ID Act apply.
The IJ noted inconsistencies in Wang’s testimony concerning the circumstances surrounding his arrival in the United States. Further, IJ reasonably found that, despite claiming persecution on account of his practice of Catholicism, Wang failed to exhibit even a basic understanding of this religion, and did not corroborate his claim that he had attended Catholic mass subsequent to his arrival in the United States. Indeed, despite claiming that he went to mass weekly, that he had been doing so since his youth, and that he had been arrested in China for reciting Bible stories, Wang could not recall any portion of a recent sermon, nor could he identify any story from the Bible. Accordingly, although we have held that “a certain degree of doctrinal knowledge is [not] necessary ... to be eligible for asylum on grounds of religious persecution,” in these circumstances, it was not improper for the IJ to find Wang not credible based on his ignorance of even the most basic aspects of his religion. Rizal v. Gonzales, 442 F.3d 84, 91 (2d Cir.2006) (citing Zhen Li Iao v. Gonzales, 400 F.3d 530, 533 (7th Cir.2005) (holding that a purported Christian who did not know, for example, who Jesus Christ was would be “instantly suspect”)).
Because substantial evidence supports the agency’s adverse credibility determination, it did not err in denying Wang’s applications for asylum and withholding of removal because both claims were based on the same factual predicate. See Paul v. Gonzales, 444 F.3d 148, 156-57 (2d Cir.2006). Moreover, although Wang argues that the agency erred by denying his claim for CAT relief based on his illegal departure from China, the agency correctly found that Wang failed to demonstrate that it was more likely than not he would be tortured if returned to that country. It is well-settled that the agency does not err in finding that a petitioner is not “entitled to CAT protection based solely on the fact that she is part of the large class of persons who have illegally departed China,” see Mu Xiang Lin v. U.S. Dep’t of Justice, 432 F.3d 156, 160 (2d Cir.2005), and Wang failed to present any particularized evidence demonstrating that it was more likely than not he would be tortured if returned to China, see id. (citing Mu-Xing Wang v. Ashcroft, 320 F.3d 130, 144 n. 21 (2d Cir.2003)).
Finally, Wang’s allegation that the IJ was biased against him is unfounded. The instances Wang cites in support of this argument concern statements made by his own attorney, not the IJ. Cf. Ali v. Mukasey, 529 F.3d 478, 490 (2d Cir.2008) (“[W]hen the IJ’s conduct results in the appearance of bias or hostility such that we cannot conduct a meaningful review of the decision below, we remand.”); accord Islam v. Gonzales, 469 F.3d 53, 55 (2d Cir.2006).
For the foregoing reasons, the petition for review is DENIED. As we have completed our review, any stay of removal that the Court previously granted in this petition is VACATED, and any pending motion for a stay of removal in this petition is DISMISSED as moot. Any pending request for oral argument in this petition is DENIED in accordance with Federal Rule of Appellate Procedure 34(a)(2), and Second Circuit Local Rule 34(b).
|
01-04-2023
|
11-05-2022
|
https://www.courtlistener.com/api/rest/v3/opinions/8473366/
|
SUMMARY ORDER
Plaintiff-Appellant Brian Rosner appeals from a judgment of the United States District Court for the Southern District of New York (Marrero, J.) entered December 18, 2008, dismissing his complaint against Defendant-Appellee the Bank of China (“BOC”) for failure to state a claim upon which relief can be granted and for failure to plead fraud with particularity. Rosner is the court-appointed Permanent Equity Receiver for International Financial Services (New York), Inc. (“IFS”) an(j other entities that were found to have engaged in fraudulent sales of investments in overseas currency trades in a civil enforcement proceeding brought by the Commodity Futures Trading Commission. See CFTC v. Int’l Fin. Servs. (N.Y.), Inc., 323 F.Supp.2d 482, 499-503 (S.D.N.Y.2004). Rosner brought this action against BOC alleging claims of aiding and abetting common law fraud and commercial bad faith in BOC’s processing of bank transactions that were a part of IFS’s fraudulent scheme. We assume the parties’ familiarity with the underlying facts, procedural history, and specification of the issues on appeal.
We review de novo a dismissal of a complaint under Rule 12(b)(6). Jaghory v. N.Y. State Dep’t of Educ., 131 F.3d 326, 329 (2d Cir.1997). “When we review the grant of a motion to dismiss under Rule 9(b) or Rule 12(b)(6), we accept as true the factual allegations of the complaint, and draw all inferences in favor of the pleader.” Mills v. Polar Molecular Corp., 12 F.3d 1170, 1174 (2d Cir.1993). We cannot make inferences unsupported by the facts alleged in the complaint, however: “To survive dismissal, the plaintiff must provide the grounds upon which his claim rests through factual allegations sufficient ‘to raise a right to relief above the speculative level.’ ” ATSI Commc’ns, Inc. v. Shaar Fund, Ltd., 493 F.3d 87, 98 (2d Cir.2007) (quoting Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555, 127 S.Ct. 1955, 167 L.Ed.2d 929 (2007)).
To state a claim for aiding and abetting fraud under New York law, a plaintiff must show 1) the existence of a fraudulent scheme, 2) that the defendant had actual knowledge of the fraud, and 3) that the defendant provided substantial assistance to the fraudulent scheme. Lerner v. Fleet Bank, N.A., 459 F.3d 273, 292 (2d Cir.2006). We find that Rosner has not alleged under any theory that BOC had actual knowledge of IFS and Siu Lap’s fraudulent scheme and therefore affirm the district court’s judgment dismissing this claim. To the extent Rosner attempts to re-argue any of the five theories of actual knowledge raised in his Second Amended Complaint (“Complaint”), Compl. ¶¶ 89-94, we agree substantially with the reasoning set forth in the district court’s opinion that these theories lack merit.
Rosner argues on appeal a somewhat different theory of BOC’s actual knowledge of the fraudulent scheme: based on his analysis of transaction records, Rosner now argues that BOC had actual knowledge that Siu Lap was a “bogus currency trading company” and “a shell company” that was engaged in money laundering at BOC’s Macau branch; that *639BOC-Macau had actual knowledge of this money laundering; and that this knowledge constitutes actual knowledge of the fraudulent scheme.1 We are not persuaded. Even if BOC had reason to suspect that Siu Lap was laundering money, this does not mean that BOC had actual knowledge of the fraudulent scheme perpetrated by IFS and Siu Lap. No facts alleged in the Complaint indicate why BOC knew that the money Siu Lap was receiving into its company account was the proceeds of a fraud committed by a different entity, the sale of investments in currency trades to investors through false and misleading statements. See CFTC v. Int'l Fin. Servs. (N.Y.), Inc., 323 F.Supp.2d at 499-500 (describing the fraud committed by IFS on its investors); cf. Lerner, 459 F.3d at 293.
The cases on which Rosner relies do not change this analysis, and in fact demonstrate the factual deficiencies in Rosner’s own complaint. In Wight v. BankAmerica Corp., 219 F.3d 79 (2d Cir.2000), this Court found that the plaintiff had properly alleged that the defendant had actual knowledge of a fraudulent scheme because the bank’s employees had “longstanding personal ties” to the parties to the fraud, id. at 82, and a bank employee testified that he knew that the parties to the fraud were “shell” companies, id. at 92. Rosner, by contrast, provides no factual support whatsoever for his allegation that Siu Lap was a “shell company,” and the Complaint alleges no facts that would suggest that any BOC employee knew anything about Siu Lap or IFS other than through Siu Lap’s transactions with the bank. In Mazzaro re Abreu v. Bank of America Corp., 525 F.Supp.2d 381 (S.D.N.Y.2007), the court found that the plaintiff had properly alleged that the bank defendants had actual knowledge of fraud because, among other reasons, they made transfers to “entities [they] knew were black market currency traders.” Id. at 389 (internal quotation marks omitted) (emphasis added). Finally, in Prudential-Bache Securities, Inc. v. Citibank, N.A., 73 N.Y.2d 263, 539 N.Y.S.2d 699, 536 N.E.2d 1118 (1989), the court found that the plaintiff had properly alleged that Citibank had actual knowledge of the fraud, sufficient for a claim of commercial bad faith, because two of its employees participated in the scheme and knew of the illegal conduct. Id. at 1126. Rosner alleges no analogous facts.
At bottom, the facts alleged in Rosner’s complaint only go so far as to suggest that BOC should have known that something was amiss with Siu Lap’s transactions, Rosner’s conclusory statements on appeal that BOC actually knew something notwithstanding. As the district court held, such a showing is insufficient to support an aiding-and-abetting claim under New York law. See, e.g., Chemtex, LLC v. St. Anthony Enters., Inc., 490 F.Supp.2d 536, 546-47 (S.D.N.Y.2007); Nigerian Nat’l Petroleum Corp. v. Citibank, N.A., No. 98 Civ. 4960, 1999 WL 558141, at *1-2, 7-8 (S.D.N.Y. July 30, 1999) (noting that bank’s knowing disregard of several indications of fraud, including transfer of funds from a company’s account to a personal account, did not amount to bank’s having actual knowledge of the fraudulent *640scheme); Prudential-Bache, 539 N.Y.S.2d 699, 536 N.E.2d at 1125-26 (A “lapse of [a bank’s] wary vigilance ... or even suspicious circumstances which might well have induced a prudent banker to investigate” are “insufficient to state a cause of action against a depositary bank.”) (quotation marks and citations omitted).
Because Rosner has failed to allege sufficient facts to support the inference that BOC had actual knowledge of the fraudulent scheme, the district court properly dismissed Rosner’s aiding-and-abetting claim. Given our determination that Ros-ner has not satisfied the “actual knowledge” requirement of this claim, we need not address whether BOC’s activities constituted “substantial assistance” in the fraudulent scheme. Because a “commercial bad faith” claim under New York law likewise requires a plaintiff to show actual knowledge of the fraudulent scheme, see Wight, 219 F.3d at 91, the district court properly dismissed that claim as well. We have considered all of Rosner’s remaining arguments and find them to be without merit.
For the foregoing reasons, the judgment of the district court is hereby affirmed.
. We express considerable doubt as to whether this theory of BOC's actual knowledge, or several of its factual predicates, was properly raised by Rosner before the district court. For example, the complaint contains no allegation at all that Siu Lap was a "shell company,” a charge that Rosner stresses in this Court. Because we find that, even under this new theory, Rosner has failed to plead actual knowledge, we need not conclusively resolve whether Rosner's theory was sufficiently raised before the district court.
|
01-04-2023
|
11-05-2022
|
https://www.courtlistener.com/api/rest/v3/opinions/8473371/
|
SUMMARY ORDER
Petitioner Mohammed Tara Mian, a native and citizen of Bangladesh, seeks review of an August 25, 2008 order of the BIA affirming the June 21, 2007 decision of Immigration Judge (“IJ”) Steven R. Abrams, pretermitting his application for asylum and denying his applications for -withholding of removal and CAT relief. In re Mohammed Tara Miah, No. A079 122 874 (B.I.A. Aug. 25, 2008), aff'g No. A079 122 874 (Immig. Ct. N.Y. City June 21, 2007). We assume the parties’ familiarity with the underlying facts and procedural history in this case.
When the BIA affirms the IJ’s decision and supplements it, this Court reviews the IJ’s decision as supplemented by the BIA. See Yan Chen v. Gonzales, 417 F.3d 268, 271 (2d Cir.2005). We review the agency’s factual findings under the substantial evidence standard. 8 U.S.C. § 1252(b)(4)(B); see Corovic v. Mukasey, 519 F.3d 90, 95 (2d Cir.2008). Questions of law and the application of law to undisputed fact are reviewed de novo. See, e.g., Salimatou Bah v. Mukasey, 529 F.3d 99, 110 (2d Cir.2008).
We lack jurisdiction to review the agency’s finding that Miah failed to file his *644asylum application within one year of his arrival in the United States as required under 8 U.S.C. § 1158(a)(2)(B). See 8 U.S.C. § 1158(a)(3). Although this Court retains jurisdiction to review constitutional claims and “questions of law,” Miah has raised no such arguments in connection with the pretermission of his asylum application. See 8 U.S.C. § 1252(a)(2)(D). Accordingly, we dismiss the petition to the extent that it seeks review of the agency’s denial of Miah’s asylum claim.
Furthermore, we deny the petition with respect to Miah’s claims for withholding of removal and CAT relief because the agency’s adverse credibility determination was supported by substantial evidence. We recognize that the parties dispute the exact date of the filing of Mian’s application for relief, and, by extension, whether the amendments of the REAL ID Act of 2005 govern our review of the adverse credibility determination in this case. Ultimately, we need not resolve this issue because the agency’s credibility determination is supported by substantial evidence under the pre-REAL ID Act standard which is more favorable to Miah and which he contends applies.
As required under pre-REAL ID Act case law, the IJ identified “specific, cogent reasons” for rejecting Miah’s testimony that “b[ore] a legitimate nexus” to the IJ’s credibility finding. Secaida-Rosales v. INS, 331 F.3d 297, 307 (2d Cir.2003). The agency’s adverse credibility determination rested on Mian’s demeanor; the discrepancy between Miah’s testimony and documentary evidence in the record regarding whether Miah personally went to the pharmacy to obtain medication; the discrepancy in his testimony regarding his relationship with Tarekur Rahman; Miah’s inability to explain the meaning of the initials “BNP,” which is an acronym for the major political party that was in charge of the Bangladeshi government at the time Miah left the country; and his failure to submit documentary evidence corroborating his medical treatment. The agency reasonably relied on the cumulative effect of the discrepancies in the record to find that Miah was not credible. See Tu Lin v. Gonzales, 446 F.3d 395, 402 (2d Cir.2006). Moreover, we afford particular deference to the IJ’s evaluation of Mian’s demeanor. See Majidi v. Gonzales, 430 F.3d 77, 81 n. 1 (2d Cir.2005). Accordingly, the agency did not err in denying Mian’s claim for withholding of removal based on his lack of credibility.
The adverse credibility determination was also a valid basis for denying Miah’s CAT claim, as his CAT claim was based on the same factual predicate as his claim for withholding of removal. See Paul v. Gonzales, 444 F.3d 148, 156-57 (2d Cir.2006).
For the foregoing reasons, the petition for review is DISMISSED in part and DENIED in part. As we have completed our review, any stay of removal that the Court previously granted in this petition is VACATED, and any pending motion for a stay of removal in this petition is DISMISSED as moot. Any pending request for oral argument in this petition is DENIED in accordance with Federal Rule of Appellate Procedure 34(a)(2), and Second Circuit Local Rule 34(b).
|
01-04-2023
|
11-05-2022
|
https://www.courtlistener.com/api/rest/v3/opinions/8473373/
|
SUMMARY ORDER
Petitioner Zhang Cheng, a native and citizen of the People’s Republic of China, seeks review of a December 19, 2008 order of the BIA denying his motion to reopen. In re Zhang Cheng, No. A073 133 454 (B.I.A. Dec. 19, 2008). We assume the parties’ familiarity with the underlying facts and procedural history in this case.
We review the BIA’s denial of a motion to reopen for abuse of discretion. Ali v. Gonzales, 448 F.3d 515, 517 (2d Cir.2006) (citing INS v. Doherty, 502 U.S. 314, 322-23, 112 S.Ct. 719, 116 L.Ed.2d 823 (1992)). *646The BIA’s regulations require an alien seeking to reopen proceedings to file a motion to reopen no later than 90 days after the date on which the final administrative decision was rendered. See 8 C.F.R. § 1003.2(c)(2). There is no dispute that Cheng’s August 2008 motion was untimely where the agency issued its final order of deportation nearly thirteen years before. However, there is no time limit for filing a motion to reopen “based on changed circumstances arising in the country of nationality or in the country to which deportation has been ordered, if such evidence is material and was not available and could not have been discovered or presented at the previous hearing.” 8 C.F.R. § 1003.2(c)(3)(ii). Here, the BIA properly found that Cheng’s motion did not qualify for such an exception.
Cheng argues that the BIA abused its discretion by failing to consider evidence he submitted that allegedly showed changed country conditions in China regarding that country’s treatment of Catholics. This argument is unavailing. Nothing in the record compels the conclusion that the BIA failed to consider the evidence Cheng submitted. See Xiao Ji Chen v. U.S. Dep’t of Justice, 471 F.3d 315, 338 n. 17 (2d Cir.2006) (presuming the agency has taken into account all of the evidence unless the record “compelling suggests otherwise”). To the contrary, the BIA listed Cheng’s evidence in its decision.
More significantly, regardless of the materiality of that evidence, the BIA reasonably determined that, because Cheng’s motion was predicated on his conversion to Catholicism subsequent to his arrival in the United States, he had alleged only a change in his personal circumstances. It is well-settled that such a change does not suffice to establish an exception to the timeliness requirement under 8 C.F.R. § 1003.2(c)(3)(ii). See Li Yong Zheng v. U.S. Dep’t of Justice, 416 F.3d 129, 130-31 (2d Cir.2005) (finding that a change in personal circumstances does not establish an exception to the filing deadline for motions to reopen); cf. Wei Guang Wang v. BIA, 437 F.3d 270, 273-74 (2d Cir.2006) (“[I]t would be ironic, indeed, if petitioners ... who have remained in the United States illegally following an order of deportation, were permitted to have a second and third bite at the apple simply because they managed to marry and have children while evading authorities. This apparent gaming of the system in an effort to avoid deportation is not tolerated by the existing regulatory scheme.”).
Accordingly, because Cheng is under a final order of removal and did not file a timely motion to reopen or demonstrate materially changed country conditions excusing the untimeliness of his motion, the BIA did not abuse its discretion in denying his motion to reopen. See 8 U.S.C. § 1229a(c)(7)(C)(ii); 8 C.F.R. § 1003.2(c)(3) (ii).
For the foregoing reasons, the petition for review is DENIED. As we have completed our review, any stay of removal that the Court previously granted in this petition is VACATED, and any pending motion for a stay of removal in this petition is DISMISSED as moot. Any pending request for oral argument in this petition is DENIED in accordance with Federal Rule of Appellate Procedure 34(a)(2), and Second Circuit Local Rule 34(b).
|
01-04-2023
|
11-05-2022
|
https://www.courtlistener.com/api/rest/v3/opinions/8473375/
|
SUMMARY ORDER
Edward Mwelwa, a native and citizen of Zambia, seeks review of an October 20, 2008 order of the BIA affirming the January 16, 2007 decision of Immigration Judge (“IJ”) Michael W. Straus denying Mwel-wa’s application for asylum and withholding of removal, and granting his request for relief under the Convention Against *648Torture (“CAT”). In re Edward Mwelwa, No. A097 753 250 (BIA Oct. 20, 2008), aff'g No. A097 753 250 (Immig. Ct. Hartford, CT Jan. 16, 2007). We assume the parties’ familiarity with the underlying facts and procedural history of the case.
When the BIA issues an opinion that fully adopts the IJ’s decision, this Court reviews the IJ’s decision. See Chun Gao v. Gonzales, 424 F.3d 122, 124 (2d Cir.2005). We review the agency’s factual findings under the substantial evidence standard. 8 U.S.C. § 1252(b)(4)(B); see also Manzur v. U.S. Dep’t of Homeland Sec., 494 F.3d 281, 289 (2d Cir.2007). Questions of law and the application of law to undisputed fact are reviewed de novo. See Salimatou Bah v. Mukasey, 529 F.3d 99, 110 (2d Cir.2008).
Substantial evidence supports the agency’s finding that Mwelwa failed to establish that the harm he endured was on account of a protected ground. See 8 U.S.C. § 1101(a)(42). In order for an applicant to demonstrate that he was persecuted on account of his political opinion, he must show that the persecution arises from his own political opinion, not from some “generalized political motive.” Yueqing Zhang v. Gonzales, 426 F.3d 540, 545 (2d Cir.2005). During Mwelwa’s first hearing, the IJ found that “there was no evidence that [his] alleged imprisonment was politically motivated.” Although Mwelwa testified that he was tortured and interrogated about missing funds from the ministry of finance where he worked, the agency reasonably found that he failed to provide sufficient evidence that he was targeted on account of his political opinion. See Yueqing Zhang, 426 F.3d at 545.
Mwelwa argues that he was targeted because he “had specialized knowledge regarding the Movement for Multi-Party Democracy (“MMD”) and because “[h]e expressed his political opinions as a member of the Forum for Democracy and Development (“FDD”) and used his specialized knowledge to combat the corruption in the MMD.” However, the IJ noted that Mwelwa testified that the paramilitary never asked him any questions about the FDD. Mwelwa testified that he was only asked questions about the two billion kwat-cha (Zambian currency) that was diverted from the National Assembly to the campaign of former President Chiluba. The IJ’s reference to this political corruption did not undermine his finding of insufficient evidence that Mwelwa was persecuted on account of his political opinion. See Vumi v. Gonzales, 502 F.3d 150, 159 (2d Cir.2007)
Mwelwa also argues that the IJ erred in failing “to reverse his prior decision and [ ] proceed consistent with the [BIA’s] opinion” on remand. However, the BIA’s order did not reverse the IJ’s decision, but rather remanded for the IJ to consider new evidence. Accordingly, Mwelwa’s argument in this regard is without merit.
Because substantial evidence supports the agency’s conclusion that Mwelwa failed to demonstrate the requisite nexus to a protected ground, he is necessarily unable to succeed on his claims for asylum and withholding of removal. See 8 C.F.R. § 1208.16(b)(1)(i)(A); Paul v. Gonzales, 444 F.3d 148, 156 (2d Cir.2006).
For the foregoing reasons, the petition for review is DENIED. As we have completed our review, any stay of removal that the Court previously granted in this petition is VACATED, and any pending motion for a stay of removal in this petition is DISMISSED as moot. Any pending request for oral argument in this petition is DENIED in accordance with Federal Rule *649of Appellate Procedure 34(a)(2), and Second Circuit Local Rule 34(b).
|
01-04-2023
|
11-05-2022
|
https://www.courtlistener.com/api/rest/v3/opinions/8473377/
|
AMENDED SUMMARY ORDER
Plaintiffs appeal from the dismissal of their complaint on the ground of forum non conveniens. We assume the parties’ familiarity with the facts and procedural history, which we reference only as necessary to explain our decision.
Toward that end, we note that defendant ImageSat is in the business of commercializing Israeli military earth observation satellite technology. Its two largest shareholders are Israeli, one of which, IAI, is wholly owned by the Israeli government. The core of plaintiffs’ complaint is that ImageSat pursued the interests of the two defendant shareholders, and subordinated the company’s interests to those of the Israeli government, to the detriment of the plaintiff investors. Plaintiffs do not challenge the district court’s conclusion that there is a “strong nexus between plaintiffs’ claims and Israel.”
Forum non conveniens analysis follows the three-step inquiry set forth in Iragorri v. United Techs. Corp., 274 F.3d 65, 73-74 (2d Cir.2001) (en banc). “At step one, a court determines the degree of deference properly accorded the plaintiffs choice of forum. At step two, it considers whether *651the alternative forum proposed by the defendants is adequate to adjudicate the parties’ dispute. Finally, at step three, a court must balance the private and public interests implicated in the choice of forum.” Norex Petroleum Ltd. v. Access Indus., Inc., 416 F.3d 146, 153 (2d Cir.2005) (citing Iragorri v. United Techs. Corp., 274 F.3d at 73-74) (internal citations omitted). We review the district court’s application of these factors deferentially for abuse of discretion, id., and we conclude that the district court acted within its discretion in this ease.
1. Step One of the Iragorri Three-Step Inquiry
At the first step of analysis, and after careful consideration of the range of factors identified as relevant in Iragorri v. United Techs. Corp., 274 F.3d at 72, the district court concluded that plaintiffs’ choice of a New York forum was entitled to “some deference.” Wilson v. ImageSat Int’l N.V., No. 07-cv-6176, 2008 WL 2851511, at *5 (S.D.N.Y. July 22, 2008). Plaintiffs assert that their choice warranted full deference because (1) six of the fifteen plaintiffs are United States citizens or residents, (2) defendants are probably amenable to suit in the Southern District, (3) defendants have access to legal counsel in the forum, and (4) certain agreements between the parties identify New York as the appropriate forum for disputes arising thereunder. We are not persuaded.
The district court appropriately considered each plaintiffs connection to the New York forum, reducing the overall deference accorded on the ground that less than half of the plaintiffs are United States residents. See Norex Petroleum Ltd. v. Access Indus., Inc., 416 F.3d at 154 (recognizing that degree of deference accorded plaintiffs choice of forum moves on a “sliding scale” correlated with “degree of convenience” choice reflects). The district court assumed that defendants are probably amenable to suit and have legal counsel in the New York forum. Nevertheless, it found that “the most pertinent documentary and testimonial evidence exists in Israel,” Wilson v. ImageSat Int’l N.V., 2008 WL 2851511, at *4, a determination not challenged by plaintiifs. Further, the district court determined that plaintiffs had sought a favorable forum by filing suit in the Southern District because the forum would (1) permit them to sue for treble damages under RICO, which would heighten the pressure on defendants to settle; (2) be less convenient and more expensive for defendants; and (3) be less favorable to defendants than Israel. Id. at *5.
Plaintiffs do not challenge these findings individually. Instead, they fault the district court for overlooking provisions in certain agreements between the parties identifying New York as the appropriate forum and waiving defendants’ ability to raise a forum non conveniens objection. Specifically, plaintiffs assert that the district court failed to acknowledge their claim arising from defendants’ failure to appoint independent members to Image-Sat’s board in violation of the 2000 Securi-tyholders Agreement, which contains a New York choice-of-law provision. This is incorrect. Although plaintiffs’ complaint identifies defendants’ apparent duty to appoint independent directors, see Compl. ¶ 190, the alleged breach of this duty does not form the basis of any of plaintiffs’ twenty-two claims or account for any portion of the more than $5 billion in demanded damages.
Because we discern no error in the district court’s conclusion that the identified choice-of-law provisions are inapplicable, we agree that those provisions should have no effect on the court’s forum non conve-niens analysis. Taking all the pertinent step-one factors together, we identify no abuse of discretion in the district court’s *652determination that plaintiffs’ choice of forum should be accorded “some” rather than “full” deference.
2. Step Three
Because plaintiffs do not challenge the district court’s step-two determination that Israel is an adequate alternative forum, we consider its step-three balancing of the private interest factors and the public interest factors “to ascertain whether the case should be adjudicated in the plaintiffs chosen forum or in the alternative forum proposed by the defendant.” Iragorri v. United Techs. Corp., 274 F.3d at 73-74 (describing private and public interest factors).
A. Private Interests
Plaintiffs challenge the district court’s determination that the private interests strongly favor dismissal, arguing that (1) witnesses and documents are available in their chosen forum, (2) unavailable witnesses can provide testimony by letters rogatory, (3) neither treble damages under RICO nor punitive damages are available in Israel, (4) plaintiffs “might” have to pay a filing fee of 2.5% in Israel, (5) plaintiffs’ counsel in New York is already familiar with the case, and (6) defendants are better able to bear the cost of litigating in the Southern District because their litigation expenses are borne by insurance or indemnified by their company. We are not convinced.
Plaintiffs do not challenge as clearly erroneous the district court’s conclusion that “the most pertinent documentary and testimonial evidence exists in Israel.” Wilson v. ImageSat Int’l N.V., No. 07-cv-6176, 2008 WL 2851511, at *4. In light of that finding, the fact that other, less pertinent witnesses and documents are located in New York, or that the “most pertinent” witnesses could submit testimony by letters rogatory, is no basis for concluding that the district court abused its discretion. As to plaintiffs’ other arguments, even assuming arguendo their relevance, they are not so weighty as to manifest that the district court abused its discretion in concluding that the totality of the private interests favor dismissal.
B. Public Interests
Although plaintiffs raise a host of challenges to the district court’s assessment of the public interests implicated by plaintiffs claims, none undermines the district court’s conclusion that Israel has a far stronger interest in this litigation than does plaintiffs’ chosen forum. The district court acted within its discretion in determining that, among other factors, the relationship between defendants and the Israeli government and plaintiffs’ allegations concerning the Israeli military and Israeli foreign policy counsel in favor of a forum non conveniens dismissal. This conclusion is reinforced by the letter submitted by Israel’s Ministry of Defense, which explains that the complaint raises claims related to Israel’s national security and other governmental interests.1
We have considered all of the plaintiffs’ remaining arguments and conclude that *653they lack merit. Accordingly, the district court’s July 25, 2008 order is AFFIRMED.
. After defendants submitted this letter to the district court with their reply brief, the court allowed plaintiffs an opportunity to file a sur-reply. The district court ultimately declined to rely on the letter, however, noting that defendants' motion to dismiss would be granted in any event. See Wilson v. ImageSat Int'l N.V., 2008 WL 2851511, at *7 n. 10. Nevertheless, because the parlies fully briefed the effect of the letter on defendants’ motion to dismiss, we may consider it. See Booking v. Gen. Star Mgmt. Co., 254 F.3d 414, 418-19 (2d Cir.2001) ("[W]e have discretion to consider issues that were raised, briefed, and argued in the District Court, but that were not reached there.”).
|
01-04-2023
|
11-05-2022
|
https://www.courtlistener.com/api/rest/v3/opinions/8473321/
|
SUMMARY ORDER
Plaintiff-appellant Paul Louis was granted disability insurance benefits by defendant-appellee Commissioner of Social Security, in a fully favorable decision issued by the Appeals Council on May 13, 2005, that found that plaintiff had been disabled since his claimed onset date of May 1, 1981. The Appeals Council mailed notice to plaintiff advising him that if he disagreed with the decision, he could seek judicial review within sixty days of receiving the notice, and that receipt would be presumed within five days of mailing. The Appeals Council also advised plaintiff that if he could not seek review within the sixty days, he could request a time extension for filing. Plaintiff did not timely seek review or extension, but rather faxed a letter to the Appeals Council on December 4, 2006 (almost nineteen months after plaintiff received the Appeals Council notice). The Appeals Council construed plaintiffs letter as a request for reopening and declined to reopen his case because his request fell outside of the sixty-day window. On December 24, 2006, plaintiff submitted a second request for reopening which the Appeals Council denied on May 12, 2007.
On May 25, 2007, plaintiff filed a complaint seeking reopening of his benefits claim in the District Court and, on April 10, 2008, the Magistrate Judge issued a Report and Recommendation (R & R) recommending that the District Court grant defendant’s motion to dismiss plaintiffs complaint. Plaintiff filed timely objections to the R & R, which the Magistrate Judge rejected in an April 23, 2008 order that also granted defendant’s motion to dismiss. *578Plaintiff timely filed this appeal. We assume the parties’ familiarity with the remaining underlying facts, the procedural history, and the issues on appeal.
Plaintiff argues that (1) the statute of limitations for reopening the Appeals Council’s decision should be equitably tolled because there was a misunderstanding with his attorney as to the onset date of his disability, and (2) even though the District Court determined that it lacked jurisdiction to review defendant’s decisions^ — inasmuch as they are not “final decisions” — to deny reopening of plaintiffs claims, plaintiffs claim warrants review because he was denied due process under the Fifth Amendment.
For the reasons stated in its order of April 23, 2008, Louis v. Comm’r of Soc. Sec., No. 6:07 cv 0557, 2008 WL 1882706 (N.D.N.Y. Apr.24, 2008), we agree with the District Court that it lacked jurisdiction to review defendant’s decisions. We have considered plaintiffs remaining claims and find them to be without merit.
CONCLUSION
Accordingly, we AFFIRM the judgment of the District Court.
|
01-04-2023
|
11-05-2022
|
https://www.courtlistener.com/api/rest/v3/opinions/8473323/
|
SUMMARY ORDER
Plaintiff Jeanette C. Martin (“plaintiff’ or “Martin”) appeals from the October 30, 2008 judgment of the District Court denying plaintiffs motion for judgment on the pleadings, dismissing plaintiffs complaint, and affirming the decision of the Commissioner of the Social Security Administration denying plaintiffs application for disability benefits. On appeal plaintiff argues (1) that the District Court erred in concluding that the vocational expert’s testimony before the Administrative Law Judge (“ALJ”) constituted substantial evidence in support of the ALJ’s finding that Martin could perform certain jobs and (2) that District Court erred in upholding the ALJ’s reliance on the Medical-Vocational Guidelines to conclude that plaintiff was not disabled. We assume the parties’ familiarity with the facts and procedural history of the case.
We have reviewed each of plaintiff’s claims and find them to be without merit. Substantially for the reasons stated by Magistrate Judge Peebles in his careful and thoughtful report and recommendation of May 28, 2008, see Martin v. Astrue, 06-CV-0720 (N.D.N.Y. May 28, 2008), which the District Court adopted, see Martin v. Comm’r of Soc. Sec., 06-CV-0720 (N.D.N.Y. Oct. 30, 2008), the October 30, 2008 judgment of the District Court is AFFIRMED.
|
01-04-2023
|
11-05-2022
|
https://www.courtlistener.com/api/rest/v3/opinions/8473327/
|
SUMMARY ORDER
Defendant Auburn Enlarged Central School District (“Auburn”) appeals from a judgment awarding J.G., as parent and next friend of plaintiffs V.G. and M.G., $9,608.30 in attorneys’ fees as the “prevailing party” in two administrative actions brought pursuant to the Individuals with Disabilities Education Act (IDEA), 20 U.S.C. § 1415(i)(3)(B)(i)(I). On appeal, Auburn argues that the district court erred in ruling that J.G. qualifies as a prevailing party under the statute because the Impartial Hearing Officers (“IHO”) in V.G. and M.G.’s administrative actions simply “so-ordered” consent decrees negotiated, drafted, and agreed upon by the parties. “[W]e review the district court’s interpretation of the relevant fee-shifting statute de novo,” Mr. L. v. Sloan, 449 F.3d 405, 406 (2d Cir.2006), and we assume the parties’ familiarity with the facts and the record of prior proceedings, which we reference only as necessary to explain our decision.
Our decision in A.R. v. New York City Department of Education, 407 F.3d 65 (2d Cir.2005), compels affirmance here. In A.R., we held that parents are “entitled to ‘prevailing party’ status” if they obtain the “administrative analog of a consent decree” from an IHO, even where “the terms of [such orders] ar[i]se out of an agreement between the parties, rather than out of the wisdom of the IHO.” Id. at 77. That is precisely what took place in V.G. and M.G.’s administrative actions.
In urging us to reach a contrary result, Auburn principally relies on a footnote in A.R., 407 F.3d at 78 n. 14, that, in turn, discussed certain “footnoted dictum” in Torres v. Walker, 356 F.3d 238, 245 n. 6 (2d Cir.2004). We are not persuaded. Even assuming, as we did in A.R., that “some evidence” of an IHO’s intent to *584place his imprimatur on a consent decree is required for a parent to be considered a prevailing party under these circumstances, that requirement is met here. A.R. v. N.Y. City Dep’t of Educ., 407 F.3d at 78 n. 14. This case is not materially distinguishable from that part of A.R. addressing the record of the second portion of M.S.’s case. See id. at 69. Moreover, the IHOs’ intent to place imprimaturs on the consent decrees is beyond dispute here. See, e.g., Letter from IHO James P. Walsh to Susan P. Johns (Jan. 17, 2006) (“I return to you herewith the original [M.G.] Consent Decree entered into by and between the parties, to which I have added my ‘So Ordered.’ ”); Owen Aff. at 6 (describing signing of V.G. decree). Finally, we decline Auburn’s invitation to speculate that the Ai?, panel reached its conclusions in reliance on factors not identified in the opinion. See, e.g., Appellant’s Reply Br. at 7 (“It is possible that the record before the Court revealed that the IHO [in M.S.] actually played more of a role than is appai’ent from the decision.”).
We have considered Auburn’s other arguments and find them to be without merit. For the foregoing reasons, the judgment of the district court is AFFIRMED.
|
01-04-2023
|
11-05-2022
|
https://www.courtlistener.com/api/rest/v3/opinions/8473329/
|
SUMMARY ORDER
Li Ming Lin, a native and citizen of the People’s Republic of China, seeks review of a November 26, 2008 order of the BIA denying his motion to reopen his removal proceedings. In re Li Ming Lin, No. A076 095 528 (B.I.A. Nov. 26, 2008). We assume the parties’ familiarity with the underlying facts and procedural history of the case.
We review the BIA’s denial of a motion to reopen for abuse of discretion. Ali v. Gonzales, 448 F.3d 515, 517 (2d Cir.2006). Here, the BIA did not abuse its discretion in denying Lin’s untimely motion to reopen. An alien may only file one motion to reopen and must do so within 90 days of the final administrative decision. 8 C.F.R. § 1003.2(c)(2). However, there is no time or numerical limitation where the alien establishes materially “changed circumstances arising in the country of nationality.” 8 C.F.R. § 1003.2(c)(3)(ii). Lin’s motion to reopen was unquestionably untimely where it was filed almost six years after the agency’s final order of removal. See 8 C.F.R. § 1003.2(c)(2).
The BIA did not err in finding that the evidence Lin submitted with his motion to reopen did not overcome the adverse credibility determination made in Lin’s removal proceeding. As we have found, the BIA may reasonably decline to accord probative weight to documents submitted with a motion to reopen where the IJ made an adverse credibility determination after the movant’s asylum hearing. Qin Wen Zheng v. Gonzales, 500 F.3d 143, 146-47 (2d Cir.2007). We find no abuse of discretion in the BIA’s decision to do so here. See id.; Kaur v. BIA, 413 F.3d 232, 233 (2d Cir.2005) (per curiam) (finding that evidence submitted was not material because it did not overcome the IJ’s prior adverse credibility determination); Siewe v. Gonzales, 480 F.3d 160, 170 (2d Cir.2007) (“[A] single false document or a single instance of false testimony may (if attributable to the petitioner) infect the balance of the alien’s uncorroborated or unauthenticated evidence.”). The BIA’s finding that Lin failed to demonstrate changed country conditions is dispositive of his petition for review. See 8 C.F.R. § 1003.2(c)(3)(ii).
*586For the foregoing reasons, the petition for review is DENIED. As we have completed our review, any stay of removal that the Court previously granted in this petition is VACATED, and any pending motion for a stay of removal in this petition is DISMISSED as moot. Any pending request for oral argument in this petition is DENIED in accordance with Federal Rule of Appellate Procedure 34(a)(2), and Second Circuit Local Rule 34(b).
|
01-04-2023
|
11-05-2022
|
https://www.courtlistener.com/api/rest/v3/opinions/8473331/
|
*587
SUMMARY ORDER
Petitioner Oleg Samartsiev, a native and citizen of Belarus, seeks review of a September 19, 2008 order of the BIA denying his motion to reopen and affirming the IJ’s March 22, 2004 denial of his motion to rescind his in absentia removal order. In re Oleg S. Samartsiev, No. A075 981 363 (B.I.A. Sept. 19, 2008), aff'g No. A075 981 363 (Immig. Ct. N.Y. City Mar. 22, 2004). We assume the parties’ familiarity with the underlying facts and procedural history in this case.
When the BIA adopts the decision of the IJ and supplements the IJ’s decision, we review the decision of the IJ as supplemented by the BIA. See Yan Chen v. Gonzales, 417 F.3d 268, 271 (2d Cir.2005). We review a motion to reopen proceedings in order to rescind an in absentia removal order for abuse of discretion. See Alrefae v. Chertoff, 471 F.3d 353, 357 (2d Cir.2006). In order to succeed on such a motion, an alien must demonstrate that his failure to appear was the result of exceptional circumstances beyond his control. 8 C.F.R. § 1003.23(b)(4)(ii). Ineffective assistance of counsel may constitute such an exceptional circumstance if the ineffective assistance results in an alien’s failure to appear at his hearing. See Aris v. Mukasey, 517 F.3d 595, 599 (2d Cir.2008).
Samartsiev argued in his motion to rescind that he failed to appear at his hearing because his former attorney’s assistant, David Lynn, erroneously informed him that his hearing had been canceled. However, Samartsiev stated in an earlier filed Notice of Appeal, which the BIA rejected, that he failed to appear on account of illness. The IJ denied the motion based on Samartsiev’s failure to explain the discrepancy, and the BIA reasonably affirmed that decision. Accordingly, the agency did not abuse its discretion in denying the motion to rescind. See Alrefae, 471 F.3d at 357.
In addition, the BIA did not abuse its discretion in denying Samartsiev’s motion to reopen for failure to meet the procedural requirements for a claim of ineffective assistance of counsel set forth in Matter of Lozada, 19 I. & N. Dec. 637 (B.I.A.1988). Samartsiev did fulfill the hozada requirements with respect to the allegation set forth in his motion to rescind. However, Samartsiev made an additional allegation of misconduct in his motion to reopen, claiming that Lynn instructed him to sign a blank Notice of Appeal form which he subsequently filed with the BIA without Samartsiev’s knowledge or consent. This claim was a separate and independent allegation of ineffective assistance, and Samartsiev failed to separately and independently satisfy the procedural requirements set forth in Matter of Lozada with respect to that allegation. Because Samartsiev made no effort to comply with Matter of Lozada in advancing this new claim of ineffective assistance, the BIA did not err in denying his motion. See Ruiz-Martinez v. Mukasey, 516 F.3d 102, 121 (2d Cir.2008) (recognizing that, while “slavish adherence” to Matter of Lozada is not required, when an alien does not comply with those requirements in any respect, the ineffective assistance of counsel claim is forfeited).
Samartsiev argues that he should not be required to comply with the requirements set forth in Matter of Lozada because Lynn was not an attorney. However, Samartsiev has repeatedly identified Lynn as the assistant to his former attorney. And when a petitioner brings a claim of ineffective assistance of counsel stemming from the actions of a non-attorney immigration consultant, he must still make an effort to comply with Matter of Lozada. See, e.g., Omar v. Mukasey, 517 F.3d 647, 651 (2d Cir.2008) (finding that the BIA’s decision to deny the petitioner’s ineffective assistance claim against a non-attorney immi*588gration consultant based on non-compliance with Lozada was “neither arbitrary nor capricious”).
Samartsiev also argues that he should not be required to comply with Matter of Lozada because it is “obvious” that Lynn provided ineffective assistance of counsel. We have held that strict compliance with Matter of Lozada is not necessary when the facts upon which the petitioner’s ineffective assistance of counsel claim is based are plain on the face of the administrative record. See Yi Long Yang v. Gonzales, 478 F.3d 133, 143 (2d Cir.2007). The record here, however, does not establish either that Lynn filed the Notice of Appeal on Samartsiev’s behalf or the circumstances surrounding its filing. Nor does Lynn’s supposed arrest and conviction provide a basis for excusing compliance with Matter of Lozada in the circumstances of this case.
For the foregoing reasons, the petition for review is DENIED. As we have completed our review, any stay of removal that the Court previously granted in this petition is VACATED, and any pending motion for a stay of removal in this petition is DISMISSED as moot. Any pending request for oral argument in this petition is DENIED in accordance with Federal Rule of Appellate Procedure 34(a)(2), and Second Circuit Local Rule 34(b).
|
01-04-2023
|
11-05-2022
|
https://www.courtlistener.com/api/rest/v3/opinions/8473333/
|
SUMMARY ORDER
Defendant-appellant John P. Dundon appeals from a July 17, 2008 second amended judgment of conviction entered after defendant pleaded guilty to one count of bank fraud in violation 18 U.S.C. § 1344, one count of identity theft in violation of 18 U.S.C. § 1028(a)(7), and two counts of willful failure to account for or pay over taxes in violation of 26 U.S.C. § 7202. Defendant was sentenced princi*590pally to eighty-seven months imprisonment on the bank fraud count, eighty-seven months imprisonment on the identity theft count, and sixty months imprisonment on each count of willful failure to pay taxes— all to run concurrently.
Defendant was originally sentenced in August 2006. One year later, in August 2007, defendant made a motion under 28 U.S.C. § 2255 claiming that he had received ineffective assistance of counsel because his attorney had failed to file a notice of appeal. The District Court granted defendant’s motion in July 2008 and stated its intent to “enter a new judgment imposing the same sentence in open court with defense counsel present.” Appellant’s App. 208; see Garcia v. United States, 278 F.3d 134, 138 (2d Cir.2002) (instructing a district court, in a similar situation, to either “(1) enter a new judgment imposing the same sentence in open court with defense counsel present or (2) if the district court discerns any useful purpose in further considering the sentence, resentence the defendant” (citation omitted)). Ten days later, the District Court held a hearing, briefly discussed the defendant’s sentence, and imposed the same sentence it had imposed in 2006. Defense counsel was present at the second sentencing hearing, but defendant and counsel for the government were not.
Defendant brings this appeal seeking to overturn his sentence only. Defendant claims that the District Court erred in applying an obstruction-of-justice enhancement under United States Sentencing Guidelines § 3C1.1 because (i) the District Court failed to make a specific finding that defendant willfully obstructed justice and (ii) the District Court failed to state its reasons for applying the obstruction-of-justice enhancement with sufficient particularity. Defendant also claims that the District Court’s “findings” were “confusing” because, in the second sentencing hearing, the District Court stated that the government had moved for a one-level reduction for acceptance of responsibility when, in fact, the government had not made such a motion. Appellant’s Br. 24.
We review a District Court’s sentencing determinations under a “ ‘deferential abuse-of-discretion standard,’ ” considering both procedural and substantive reasonableness. See United States v. Cavera, 550 F.3d 180, 189 (2d Cir.2008) (en banc) (quoting Gall v. United States, 552 U.S. 38, 128 S.Ct. 586, 591, 169 L.Ed.2d 445 (2007)). Undertaking that review, we affirm the District Court’s sentencing determination.
Defendant first argues that the obstruction-of-justice enhancement under § 3C1.1 was improper because the District Court failed to make an explicit finding that defendant willfully obstructed justice. An obstruction of justice enhancement under § 3C1.1 “is not appropriate, by the terms of that section, unless the obstruction was ‘willful[ ],’ ” and in order “to impose a § 3C1.1 obstruction-of-justice enhancement on a defendant who has raised an issue as to his state of mind ..., the court must make ‘a specific finding of intent.’ ” United States v. Reed, 49 F.3d 895, 900-01 (2d Cir.1995).
Here, the District Court imposed the obstruction-of-justice enhancement on the basis of two findings: first, that defendant had submitted a fabricated document to the IRS and, second, that defendant had caused his wife to submit a forged email in support of defendant’s bail application. Although the District Court did not use the words “willfull,” “willfully,” or “willfulness” at the sentencing hearing, we do not read our precedent to require the use of magic words at sentencing. See Cavera, 550 F.3d at 193 (“Sentencing is a responsibility heavy enough without our adding formulaic or ritualized burdens.”). It is enough that the District Court, having ad*591dressed and rejected defendant’s arguments, specifically found that defendant “did obstruct justice pursuant to U.S. Sentencing Guidelines 3C1.1.” Appellant’s App. 191. Indeed, although remand is appropriate where a court “neither clearly resolves the disputed issue nor explicitly relies on factual assertions made in a [pre-sentence report],” Reed, 49 F.3d at 901, here the District Court clearly stated its grounds for applying the obstruction-of-justice enhancement and explicitly adopted the factual assertions made in the presen-tence report. We therefore reject defendant’s claim that the District Court erred by failing to make a “specific finding of intent” with respect to the obstruction-of-justice enhancement.
Likewise, we reject defendant’s contention that the District Court erred by making insufficiently particular findings with respect to the obstruction-of-justice enhancement. After reviewing the transcripts of the sentencing hearings, we are “satisfied]” that the District Court “ ‘considered the parties’ arguments’ ” and had a “ ‘reasoned basis for exercising [its] own legal decisionmaking authority.’ ” Cavera, 550 F.3d at 193 (quoting Rita v. United States, 551 U.S. 338, 356, 127 S.Ct. 2456, 168 L.Ed.2d 203 (2007)).
Finally, we reject defendant’s contention that remand is required because the District Court’s “findings” were “confusing” in the second sentencing hearing. Appellant’s Br. 24. In the initial sentencing hearing, the District Court granted, over the government’s objection, a two-point reduction for acceptance of responsibility. At the second sentencing hearing, with only defense counsel present, the District Court again applied the two-point reduction for acceptance of responsibility but also stated that the government had moved for an additional one-point reduction for acceptance of responsibility under United States Sentencing Guidelines § 3E1.1 (b). In fact, the government had made no such motion. The District Court then calculated the Guidelines sentencing range but did not apply the additional one-point reduction. After defense counsel pointed out the discrepancy, the District Court explained that a sentence of 87 months was within the Guidelines range even if the additional one-point reduction applied. Thus, the District Court stated that its 87-month “stands.” Appellant’s App. 219.
We do not conclude that the District Court’s minor misstatement regarding the additional one-point reduction merits remand. The District Court at the second sentencing hearing simply carried out its intention of “imposing the same sentence” that it imposed in the first sentencing hearing. Appellant’s App. 208. Even if the District Court mistakenly stated that the government had moved for an additional one-point reduction, the sentence must be affirmed because the District Court found that the sentence would “stand[]” even if that reduction were to apply. See United States v. Bermingham, 855 F.2d 925, 935 (2d Cir.1988) (“As long as the sentencing judge is satisfied that the same sentence would have been imposed no matter which of the two guideline ranges applies, the sentence should stand.”).
CONCLUSION
The July 17, 2008 second amended judgment of conviction is AFFIRMED.
|
01-04-2023
|
11-05-2022
|
https://www.courtlistener.com/api/rest/v3/opinions/8473335/
|
SUMMARY ORDER
Employers Reinsurance Corporation (“ERC”) appeals from a judgment of the United States District Court for the Southern District of New York (Berman, J.) denying its motion for summary judgment against The Thomson Corporation (“Thomson”), which brought this action seeking, *593inter alia, a declaration that its communications liability insurance policy (“the policy”) with ERC provided for coverage of up to $10 million. We assume the parties’ familiarity with the underlying facts and the procedural history of the case, as well as the issues on appeal.
Thomson, the publisher of a Canadian newspaper called “The Globe and Mail,” claims that ERC breached its obligation under the policy to provide $10 million (U.S.) in coverage with respect to two copyright lawsuits brought against it in Canada relating to the re-publication of freelance articles written for The Globe and Mail in “Info Globe Online,” an electronic database owned by Thomson. The policy specifically provided “communications liability” coverage to the “Named Insured,” which included Thomson and its subsidiaries, arising out of, among other things, copyright infringement “committed in the utterance or dissemination of matter by or with the permission of the NAMED INSURED or its subsidiary during the policy period [March 31, 1995-March 31, 1996] in the named publication(s) and in any advertising of the named publication(s).” Endorsement No. 31 extended coverage “to include the on-line activities of the Named Insured.”
According to ERC, the policy provided coverage of up to $1 million (Canadian). ERC asserts that Endorsement No. 18 (adding the publication The Globe and Mail with a liability limit of $10 million (U.S.)) does not apply here because the copyright infringements did not occur in The Globe and Mail- — but rather on Info Globe Online — and Info Globe Online is an “on-line activity” of “named insured” Thomson, not a daily electronic version of The Globe and Mail newspaper.
The district court denied ERC’s motion for summary judgment, concluding that the policy was ambiguous as to whether the $1 million or the $10 million coverage limit applied to the copyright claims. The case proceeded to trial. The jury returned a verdict for Thomson, finding that the $10 million coverage limit set forth in Endorsement No. 18 applied. ERC appealed.
ERC now asks us to review the district court’s order denying it summary judgment. ERC argues that the district court erred in concluding that the policy was ambiguous as to the liability limits applicable to the copyright infringement actions. It asserts that the policy unambiguously provided Thomson with coverage in the amount of $1 million (Canadian), not $10 million (U.S.) as found by the jury.
However, it was conceded on appeal that the case was tried by ERC on the theory that Globe Online was under the control of Thomson and therefore the coverage limit was $1 million (Canadian) as set forth in Endorsement No. 31 and not the $10 million (U.S.) provided for in Endorsement No. 18 for The Globe and Mirror. Thus, ERC tried the case on a theory different from that which it espoused in its motion for summary judgment, and it did not continue to assert at trial that the coverage issue could be decided as a matter of law.
Generally, a party cannot appeal from the denial of a motion for summary judgement where there was an intervening trial of the merits. Pahuta v. Massey-Ferguson, Inc., 170 F.3d 125, 129-33 (2d Cir.1999). The circumstances of ERC’s employment of a trial strategy that differed from the legal theory it advanced on its motion for summary judgment do not make this case an appropriate candidate for any of the available exceptions to the general rule. See Schaefer v. State Ins. Fund, 207 F.3d 139, 142 (2d Cir.2000).
The Court has reviewed ERC’s remaining arguments and finds them to be without merit. Accordingly, for the reasons *594set forth above, the judgment of the district court is hereby AFFIRMED.
|
01-04-2023
|
11-05-2022
|
https://www.courtlistener.com/api/rest/v3/opinions/8473337/
|
SUMMARY ORDER
Appellant James Williams, pro se, appeals from a judgment of the District Court entered after the District Court granted defendant James Temple’s motion for summary judgment. Williams brought this action under 42 U.S.C. § 1983 alleging a procedural due process claim under Sandin v. Conner, 515 U.S. 472, 115 S.Ct. 2293, 132 L.Ed.2d 418 (1995); a claim under the Free Exercise Clause of the First Amendment and the Religious Land Use and Institutionalized Persons Act (“RLUI-PA”), 42 U.S.C. § 2000ce, et seq.; and a First Amendment retaliation claim. We assume the parties’ familiarity with the underlying facts, procedural history, and issues on appeal.
We review a district court’s order granting summary judgment de novo and ask whether the district court properly concluded that there was no genuine issue as to any material fact and that the moving party was entitled to judgment as a matter of law. See Miller v. Wolpoff & Abramson, L.L.P., 321 F.3d 292, 300 (2d Cir.2003). In determining whether there are genuine issues of material fact, we are “required to resolve all ambiguities and draw all permissible factual inferences in favor of the party against whom summary judgment is sought.” Terry v. Ashcroft, 336 F.3d 128, 137 (2d Cir.2003) (internal quotation marks omitted).
First, we agree with the District Court that summary judgment for Temple was proper with respect to Williams’s procedural due process claim. As the Supreme Court held in Sandin, a prisoner has the right to procedural due process before the deprivation of a liberty interest. 515 U.S. at 483-84, 115 S.Ct. 2293. Nevertheless, placement in restrictive confinement implicates a prisoner’s liberty interest only if the confinement “imposes [an] atypical and significant hardship on the inmate in relation to the ordinary incidents of prison life.” Id. at 484, 115 S.Ct. 2293. The admissible evidence in the record contains no indication that the conditions and duration of Williams’s placement on limited privilege — which lasted from approximately April 13, 2005, to May 25, 2005— rose to the level of an “atypical and significant hardship.” See Palmer v. Richards, 364 F.3d 60, 64-65 (2d Cir.2004).
*596We also agree with the District Court that summary judgment for Temple was proper with respect to Williams’s claims under the Free Exercise Clause and RLUIPA. The prison in which Williams was housed allowed inmates on limited privilege to request to attend religious services, and Williams has provided no evidence that he complied with that policy. On this record, Williams’s evidence cannot support a claim that the prison’s policy was not “reasonably related to a legitimate penological interests” under the Free Exercise Clause. Salahuddin v. Goord, 467 F.3d 263, 274 (2d Cir.2006) (internal quotation marks omitted). Nor does the evidence submitted by Williams support a claim under RLUIPA, 42 U.S.C. § 2000cc-1(a).
Lastly, we agree with the District Court that summary judgment for Temple was proper with respect to Williams’s First Amendment retaliation claim. To defeat summary judgment on his First Amendment retaliation claim, Williams was required to provide evidence that (1) his speech was constitutionally protected, (2) Temple took an adverse action against him, and (3) there was a causal relationship between the protected speech and the adverse action. See Scott v. Coughlin, 344 F.3d 282, 287 (2d Cir.2003). Williams provided evidence that Temple placed him on limited privilege status after Williams complained that he had not been assigned an educational or vocational program. As we have previously held, however, where the challenged action “is motivated by both proper and improper reasons, the action may be sustained if it would have been taken even in the absence of the improper reason.” Lowrance v. Achtyl, 20 F.3d 529, 535 (2d Cir.1994). Here, Williams submitted several documents with his opposition to the motion for summary judgment in which he admitted that he had refused to accept programs that had been offered to him. Thus, we agree with the District Court that Williams’s “assignment to limited privilege status would have occurred even in the absence of the alleged improper motive.” Cf. id. at 535.
CONCLUSION
For the reasons set forth above, the judgment of the district court is AFFIRMED. Williams’s pending motion “for some kind of settlement” is DENIED.
|
01-04-2023
|
11-05-2022
|
https://www.courtlistener.com/api/rest/v3/opinions/8473339/
|
SUMMARY ORDER
Petitioner Bao Zhi Liu, a native and citizen of the People’s Republic of China, seeks review of: (1) the October 29, 2007 order of the BIA denying his second motion to reopen, In re Bao Zhi Liu, No. A072 366 183 (B.I.A. Oct. 29, 2007); and (2) the July 31, 2008 order of the BIA denying his third motion to reopen, In re Bao Zhi Liu, No. A072 366 183 (B.I.A. July 31, 2008). We assume the parties’ familiarity with the underlying facts and procedural history in this case.
*598We review the BIA’s denial of a motion to reopen for abuse of discretion. See Kaur v. BIA, 413 F.3d 232, 233 (2d Cir.2005) (per curiam). There is no dispute that Liu’s second and third motions to reopen would ordinarily be untimely and number-barred. See 8 C.F.R. § 1003.2(c)(2) (providing that an alien seeking to reopen proceedings may file only one motion to reopen no later than 90 days after the date on which the final administrative decision was rendered). However, there are no time and number limitations for filing a motion to reopen if it is “based on changed circumstances arising in the country of nationality or in the country to which deportation has been ordered, if such evidence is material and was not available and could not have been discovered or presented at the previous hearing.” 8 C.F.R. § 1003.2(c)(3)(ii).
I. Dkt. No. 07-4982-ag (L)
The BIA did not abuse its discretion in denying Liu’s second motion to reopen because it reasonably found that he failed to proffer material evidence in support of that motion. Liu was previously found not credible in his underlying proceeding, and his changed country conditions argument was supported only by unauthenticated documents. In such circumstances, the BIA does not err in refusing to credit the movant’s evidence. See Qin Wen Zheng v. Gonzales, 500 F.3d 143, 147-48 (2d Cir.2007) (finding that the agency may properly conclude that a prior adverse credibility determination undermines the authenticity of documentary evidence accompanying an alien’s motion to reopen); Siewe v. Gonzales, 480 F.3d 160, 170 (2d Cir.2007) (holding that a “finding of fraudulent evidence redounds upon all evidence the probative force of which relies in any part on the credibility of the petitioner.”); 8 C.F.R. § 1003.2(c)(1); see also INS v. Abudu, 485 U.S. 94, 104-05, 108 S.Ct. 904, 99 L.Ed.2d 90 (1988). Nor did the BIA abuse its discretion by not revisiting Liu’s ineffective assistance and adjustment of status claims given that the stipulated order remanding Liu’s case to the BIA did not require it to do so.
II. Dkt. No. 08-3982-ag (L)
To the extent that Liu challenges the BIA’s refusal to reopen his case sua sponte based on alleged translation errors in the record, we lack jurisdiction to review those arguments because such a decision is “entirely discretionary.” Azmond Ali v. Gonzales, 448 F.3d 515, 518 (2d Cir.2006); see also Cyrus v. Keisler, 505 F.3d 197, 202 (2d Cir.2007).2
Liu further argues that the BIA erred by failing to consider the evidence he submitted in support of his third mo*599tion to reopen. However, we have rejected the notion that the agency must “expressly parse or refute on the record each individual argument or piece of evidence offered by the petitioner,” Jian Hui Shao v. Mukasey, 546 F.3d 138, 169 (2d Cir.2008) (internal quotation marks omitted), and “presume that [the agency] has taken into account all of the evidence before [it], unless the record compellingly suggests otherwise,” Xiao Ji Chen v. U.S. Dep’t of Justice, 471 F.3d 315, 337 n. 17 (2d Cir.2006). Here, it is clear that the BIA considered the evidence Liu submitted in support of his third motion to reopen and did not err in denying that motion. See 8 U.S.C. § 1229a(c)(7)(C)(ii); Jian Hui Shao, 546 F.3d at 169.
For the foregoing reasons, these petitions for review are DENIED. As we have completed our review, any stay of removal that the Court previously granted in these petitions is VACATED, and any pending motion for a stay of removal in these petitions is DISMISSED as moot. Any pending request for oral argument in these petitions is DENIED in accordance with Federal Rule of Appellate Procedure 34(a)(2), and Second Circuit Local Rule 34(b).
. The BIA construed Liu’s argument regarding translation errors as a request that it exercise its authority to reopen his proceedings sua sponte. Liu does not challenge the BIA’s decision to do so. Nonetheless, we note that because the statute is clear that an alien must show "changed country conditions," 8 U.S.C. § 1229a (c)(7)(C)(ii), the BIA did not abuse its discretion by declining to reopen based on Liu’s argument that the BIA's past reliance on mistranslated documents was the "functional equivalent" of such a change. We allow that in some circumstances — such as when new evidence brings to light an ongoing but heretofore unknown persecutory practice that may alter the State Department’s perception of country conditions — the BIA may abuse its discretion by finding that the evidence does not show the requisite change. But, such is not the case here. As the BIA found, the allegedly mistranslated portions of the evidence in question, even if corrected, would not change the evidence's meaning.
|
01-04-2023
|
11-05-2022
|
https://www.courtlistener.com/api/rest/v3/opinions/8473341/
|
SUMMARY ORDER
Petitioner Jian Wen Wang, a native and citizen of the People’s Republic of China, seeks review of:. (1) the February 27, 2008 order of the BIA denying his third motion to reopen, In re Jian Wen Wang, No. A076 586 583 (B.I.A. Feb. 27, 2008); and (2) the July 24, 2008 order of the BIA denying his motion to reconsider and fourth motion to reopen, In re Jian Wen Wang, No. A076 586 583 (B.I.A. July 24, 2008). We assume the parties’ familiarity with the underlying facts and procedural history in this case.
We review the BIA’s denial of a motion to reopen and reconsider for abuse of discretion. See Kaur v. BIA, 413 F.3d 232, 233 (2d Cir.2005) (per curiam). There is no dispute that Wang’s third and fourth motions to reopen were untimely and number-barred. See 8 C.F.R. § 1003.2(c)(2) (providing that an alien seeking to reopen proceedings may file one motion to reopen no later than 90 days after the date on which the final administrative decision was rendered). However, there are no time and number limitations for filing a motion to reopen if it is “based on changed circumstances arising in the country of nationality or in the country to which deportation has been ordered, if such evidence is material and was not available and could not have been discovered or presented at the previous hearing.” 8 C.F.R. § 1003.2(c)(3) (ii).
I. Dkt. No. 08-1296-ag (L)
The BIA did not abuse its discretion in denying Wang’s third motion to reopen because it reasonably found that he failed to proffer material evidence in support of that motion. Contrary to Wang’s *601arguments, in evaluating the evidence that he submitted in support of his motion, the BIA did not err in failing to specifically discuss: (1) an unauthenticated notice that family planning officials allegedly sent to an anonymous couple in Fujian Province; and (2) a newspaper article from The New Ycyrk Times. Although “Us and the BIA have a duty to explicitly consider any country conditions evidence submitted by an applicant that materially bears on his claim,” Zhi Yun Gao v. Mukasey, 508 F.3d 86, 87 (2d Cir.2007)(quotations omitted), the Court presumes that the agency has considered the evidence unless the record compellingly suggests otherwise, see Xiao Ji Chen v. U.S. Dep’t of Justice, 471 F.3d 315, 336 n. 17 (2d Cir.2006). We are not compelled to conclude that the BIA ignored Wang’s evidence.
With respect to Wang’s religion-based claim, the BIA reasonably concluded that he failed to establish that the Chinese government was or would become aware of his religious activities. See Hongsheng Leng v. Mukasey, 528 F.3d 135, 143 (2d Cir.2008). Wang argues that the BIA “had a duty” to take administrative notice of the International Religious Freedom Report that he submitted. But, again, we are not compelled to find that the BIA ignored that evidence. See Xiao Ji Chen, 471 F.3d at 337 n. 17.
Ultimately, because the BIA did not err in finding that Wang failed to submit material evidence demonstrating a change in country conditions, see Jian Hui Shao v. Mukasey, 546 F.3d 138, 169 (2d Cir.2008), it did not abuse its discretion in denying his third motion to reopen. See INS v. Abudu, 485 U.S. 94, 104-05, 108 S.Ct. 904, 99 L.Ed.2d 90 (1988); see also 8 C.F.R. § 1003.2(c)(1). This Court lacks jurisdiction to consider the BIA’s refusal to reopen Wang’s proceedings sua sponte. See Ali v. Gonzales, 448 F.3d 515, 518 (2d Cir.2006).
II. Dkt. No. 08-3940-ag (Con)
Although Wang filed a timely petition for review from the BIA’s order denying his motion to reconsider and fourth motion to reopen, he makes no argument concerning that order. Thus, we deem any challenge to that order waived. See Yueqing Zhang v. Gonzales, 426 F.3d 540, 545 n. 7 (2d Cir.2005).
For the foregoing reasons, these petitions for review are DENIED. As we have completed our review, the pending motion for a stay of removal in these petitions is DISMISSED as moot.
|
01-04-2023
|
11-05-2022
|
https://www.courtlistener.com/api/rest/v3/opinions/8473343/
|
AMENDED SUMMARY ORDER
Plaintiff-Appellant Anthony Harris, appearing pro se, appeals from the judgment of the United States District Court for the Southern District of New York (Preska, J.), granting defendants’ motion for summary judgment as to all of Appellant’s 42 U.S.C. § 1983 claims, except for the claim arising from the allegation of assault by Appellee James Correa. Appellant also appeals from the judgment of the district court upon a jury verdict in favor of Cor-rea. We assume the parties’ familiarity with the facts and procedural history.
We review orders granting summary judgment de novo and focus on whether the district court properly concluded that there was no genuine issue as to any material fact and that the moving party was entitled to judgment as a matter of law. See Miller v. Wolpoff & Abramson, L.L.P., 321 F.3d 292, 300 (2d Cir.2003). Because Appellant has not challenged the district court’s dismissal of his claims against defendants Mgichy, Blanch, Garant, White, Hardy, and Rawlins for failure to effect proper service, he has waived those arguments. See LoSacco v. City of Middletown, 71 F.3d 88, 92-93 (2d Cir.1995) (holding that, when a litigant raises an issue before the district court but does not raise it on appeal, it is abandoned, and that this rule may be applied to pro se litigants).
*603For substantially the same reasons as the district court, we find that the district court properly granted summary judgment. First, the Prison Litigation Reform Act (PLRA) requires prisoners to exhaust administrative remedies before bringing suit. See 42 U.S.C. § 1997e(a); Johnson v. Rowley, 569 F.3d 40, 44 (2d Cir.2009). The PLRA’s “exhaustion requirement applies to all inmate suits about prison life, whether they involve general circumstances or particular episodes, and whether they allege excessive force or some other wrong.” Porter v. Nussle, 534 U.S. 516, 532, 122 S.Ct. 983, 152 L.Ed.2d 12 (2002). Although Appellant provided evidence of having filed some grievances relating to the denial of access to the law library, he did not establish that he had filed grievances as to the failure to produce him in court or the failure to provide treatment for asthma. Moreover, as to the grievances he did file, Appellant provided no evidence that he exhausted grievance procedures by appealing the denial of such grievances. Thus, he failed to exhaust the bulk of his claims against the prison officials.
Second, the claims against the City of New York properly were dismissed, as Appellant failed to provide any evidence that the City had a policy or custom of denying medical treatment or not addressing inmate grievances. See Dunton v. Suffolk County, 729 F.2d 903, 907 (2d Cir.1984). Moreover, the City cannot be held liable under a theory of respondeat superior. See Monell v. Department of Social Services, 436 U.S. 658, 691-94, 98 S.Ct. 2018, 56 L.Ed.2d 611 (1978).
Finally, we find none of Appellant’s attacks on the jury verdict persuasive. We review the district court’s evidentiary rulings for abuse of discretion. Arlio v. Lively, 474 F.3d 46, 51 (2d Cir.2007). The district court did not abuse its discretion by excluding irrelevant evidence, or evidence as to which Appellant failed to provide proper notice by failing to identify in advance of trial the witnesses and documents or exhibits he intended to use at trial. We review challenges to the district court’s jury instructions de novo. See Hudson v. New York City, 271 F.3d 62, 67 (2d Cir.2001). The district court properly declined to include the jury instructions sought by Appellant, as they were not relevant to the issues contested at trial. With respect to the conduct of the trial, the “trial-management authority entrusted to district courts includes ‘the discretion to place reasonable limits on the presentation of evidence.’ ” United States v. Quattrone, 441 F.3d 153, 183 (2d Cir.2006). The right to a fair trial is infringed only when “a judge’s questions and comments convey to the jury that the judge disbelieves the ... testimony.” Id.; see also Bolin v. Harvard Protection Svc., Inc., 277 Fed.Appx. 102, 104 (2d Cir.2008). Appellant failed to show that any prejudice resulted from the district court’s comments, which were in the service of managing the trial and keeping the proceedings running in orderly fashion.
We have reviewed Appellant’s remaining arguments and find them to be without merit. For the reasons stated above, the judgment of the district court is AFFIRMED.
|
01-04-2023
|
11-05-2022
|
https://www.courtlistener.com/api/rest/v3/opinions/8473347/
|
SUMMARY ORDER
Plaintiff-appellant appeals a September 29, 2008, 2008 WL 4449382, judgment of the District Court entered after a jury returned a verdict in favor of defendants. *609Plaintiff brought this action under 42 U.S.C. § 1983 alleging that defendants violated the U.S. Constitution and New York law by removing her five children and three grandchildren from her custody without a court order and by pursuing an abuse and neglect petition against plaintiff in the Family Court of the State of New York.
On appeal, plaintiff argues that the District Court erred by (1) declining to enter judgment as a matter of law or to grant a new trial, see Fed.R.Civ.P. 50, 59; (2) granting judgment as a matter of law to defendants on plaintiffs municipal liability claim pursuant to Monell v. Department of Social Services, 436 U.S. 658, 98 S.Ct. 2018, 56 L.Ed.2d 611 (1978); (3) granting judgment as a matter of law to defendants on plaintiffs malicious prosecution claim; and (4) declining to permit plaintiffs expert witness to testify.
First, after a careful review of the trial record, we agree with the District Court’s decision not to grant judgment as a matter of law to plaintiff. “We review a district court’s ruling on a Rule 50 motion de novo, and apply the same standard used by the district court below.” Cobb v. Pozzi, 363 F.3d 89, 101 (2d Cir.2004). We affirm the judgment entered by the District Court because there was a “legally sufficient evidentiary basis for a reasonable jury to find” for defendants on all issues. Id. (internal quotation marks omitted). We also agree with the District Court’s decision not to grant a new trial because we do not conclude that the jury “reached a seriously erroneous result” or that its verdict was “a miscarriage of justice.” Nimely v. City of New York, 414 F.3d 381, 392 (2d Cir.2005) (internal quotation marks omitted).
Second, we agree with the District Court that judgment as a matter of law for defendants was proper with respect to plaintiffs Monell claim. See Special App. 215 (Tr. 1046). Plaintiff did not provide sufficient evidence that a “policy or custom” of the City of New York caused the alleged constitutional violation. Monell, 436 U.S. at 694, 98 S.Ct. 2018.
Third, we agree with the District Court that judgment as a matter of law for defendants was proper with respect to plaintiffs malicious prosecution claim. Plaintiff did not provide evidence from which a reasonable jury could infer that the Family Court proceedings were “begun in malice,” a necessary element of a malicious prosecution claim. See, e.g., Engel v. CBS, Inc., 182 F.3d 124, 131 (2d Cir.1999) (per curiam).
Finally, we review for abuse of discretion the District Court’s decision not to allow plaintiffs expert to testify. Nimely, 414 F.3d at 393. “A district court has abused its discretion if it [has] based its ruling on an erroneous view of the law or on a clearly erroneous assessment of the evidence, or rendered a decision that cannot be located within the range of permissible decisions.” Sims v. Blot, 534 F.3d 117, 132 (2d Cir.2008) (citation, alteration, and quotation marks omitted). The District Court’s decision not to permit plaintiffs expert to testify was, in the circumstances presented, well within the range of permissible decisions.
We have considered plaintiffs remaining arguments on appeal and find them to be without merit.
CONCLUSION
For the reasons set forth above, the September 29, 2008 judgment of the District Court is AFFIRMED.
|
01-04-2023
|
11-05-2022
|
https://www.courtlistener.com/api/rest/v3/opinions/8473349/
|
SUMMARY ORDER
Defendants Osman Ozsusamlar (“Osman”) and his father Mustafa Ozsusamlar (“Mustafa”) were convicted of conspiracy to commit murder for hire, murder for hire, and conspiracy to commit extortion. On appeal, Osman argues, inter alia, that: (1) there was insufficient evidence to convict him for conspiracy to commit extortion, and (2) prosecutorial misconduct in the State’s rebuttal summation deprived him of a fair trial. On appeal, Mustafa argues that: (1) the court violated his rights under the Confrontation Clause by finding that the government made a good faith effort to locate missing witnesses and then allowing into evidence prior testimony of those witnesses, and (2) he was denied effective assistance of counsel when his lawyer failed to object to the government’s assertion that the witnesses were unavailable.
We review each of these four claims seriatim. We assume the parties’ familiarity with the underlying facts, the procedural history, and the issues presented for review.
[1] Osman first argues that there was insufficient evidence to convict him for conspiracy to commit extortion because there was no evidence that he knew that his father contemplated a kidnapping as a means of inducing the Batkas to repay money allegedly owed to him.
This challenge assumes that the government’s extortion theory was based entirely on the defendants’ plot to kidnap the Bat-kas’s two children. But Osman was not charged with conspiracy to commit kidnapping, and the government’s argument was not limited to extortion by kidnapping. Rather, the government’s theory was that the defendants conspired to use threatened or actual force to induce the Batkas to repay their debt. The government presented more than sufficient evidence to support a conviction on this theory.
[2] Osman’s second argument is that the prosecutor engaged in misconduct during rebuttal summation by attacking the integrity of the defense attorneys and by distorting what defense attorneys argued and the evidence on which they relied.
Prosecutors are afforded “‘broad latitude in the inferences [they] may reasonably suggest to the jury during summation.’ ” United States v. Zackson, 12 F.3d 1178, 1183 (2d Cir.1993) (quoting United States v. Casamento, 887 F.2d 1141, 1189 (2d Cir.1989)). Under the “invited response” doctrine, “defense argument may, in a proper case, ‘open the door’ to otherwise inadmissible prosecution rebuttal.” United States v. Rivera, 971 F.2d 876, 883 (2d Cir.1992); see also United States v. Robinson, 485 U.S. 25, 33-34, 108 S.Ct. 864, 99 L.Ed.2d 23 (1988). This is because prosecutors must be allowed to offer “legitimate responses” to defense arguments raised during summation. See Rivera, 971 F.2d at 883; see also United States v. Thai, 29 F.3d 785, 807 (2d Cir.1994); United States v. Praetorius, 622 F.2d 1054, 1060-61 (2d Cir.1979).
“[A] criminal conviction is not to be lightly overturned on the basis of a prosecutor’s comments standing alone, for the *612statements or conduct must be viewed in context.” United States v. Young, 470 U.S. 1, 11, 105 S.Ct. 1038, 84 L.Ed.2d 1 (1985). We will vacate a conviction on grounds of prosecutorial misconduct only if “the statements, viewed against the ‘entire argument before the jury,’ deprived the defendant of a fair trial.” United States v. Wilkinson, 754 F.2d 1427, 1435 (2d Cir.1985) (quoting United States v. Socony-Vacuum Oil Co., 310 U.S. 150, 242, 60 S.Ct. 811, 84 L.Ed. 1129 (1940)). In keeping with this rule, vacatur is required only where the prosecutor’s conduct “amounted to prejudicial error.” Young, 470 U.S. at 12, 105 S.Ct. 1038. But “where prosecutors have responded reasonably in closing argument to defense counsel’s attacks,” it is “unlikely that the jury was led astray,” and vacatur is not generally required. Id.
The prosecutor’s comments in rebuttal summation were aimed at rebutting defense arguments. The defense had argued, for example, that the government did not care about the truth of its witnesses’ testimony and wanted its principal prosecution witness to “say whatever it takes to convict these two defendants.” Against that backdrop, the prosecutor’s comments in rebuttal summation do not constitute misconduct. We have previously upheld prosecution comments remarkably similar to those at issue on this appeal. See, e.g., United States v. Caputo, 808 F.2d 963, 968-69 (2d Cir.1987); United States v. Marrale, 695 F.2d 658, 666-67 & n. 9 (2d Cir.1982); United States v. Perry, 643 F.2d 38, 51 (2d Cir.1981).
[3] Mustafa challenges the district court’s finding that the government made a good faith effort to locate two missing witnesses, and the subsequent admission into evidence of those two witnesses’ prior testimony.
The Confrontation Clause affords a criminal defendant the right “to be confronted with the witnesses against him.” U.S. Const. amend. VI. It permits the introduction of prior testimony against a criminal defendant if the witness is unavailable and the defendant had a prior opportunity to cross-examine the witness. See Crawford v. Washington, 541 U.S. 36, 68, 124 S.Ct. 1354, 158 L.Ed.2d 177 (2004).
“For purposes of the confrontation clause, a declarant is unavailable when the declarant is absent ‘despite good-faith efforts undertaken prior to trial to locate and present that witness.’ ” United States v. Casamento, 887 F.2d 1141, 1169 (2d Cir.1989) (quoting Ohio v. Roberts, 448 U.S. 56, 74, 100 S.Ct. 2531, 65 L.Ed.2d 597 (1980)). Whether government efforts constitute “good-faith” is “a question of reasonableness.” Id.; see also Roberts, 448 U.S. at 74, 100 S.Ct. 2531.
Here, the government’s efforts were reasonable and in good faith. It looked for the witnesses in the United States, but learned that they were likely in Turkey. It contacted the FBI’s legal attaché in Turkey seeking its assistance. And the attaché in turn obtained the assistance of Turkish law enforcement officials.
Mustafa next argues that his counsel was constitutionally ineffective under Strickland v. Washington, 466 U.S. 668, 687, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984), because he failed to object to the government’s unavailability argument. However, trial counsel is not constitutionally ineffective when it fails to object to the introduction of admissible evidence. United States v. Diaz, 176 F.3d 52, 113 (2d Cir.1999); United States v. Brooks, 82 F.3d 50, 53-54 (2d Cir.1996); United States v. Boothe, 994 F.2d 63, 68-69 (2d Cir.1993).
Finding no merit in either defendant’s remaining arguments, we hereby AFFIRM the judgment of the district court.
|
01-04-2023
|
11-05-2022
|
https://www.courtlistener.com/api/rest/v3/opinions/8473351/
|
SUMMARY ORDER
Plaintiff, John Lambrinos, and defendant, Donald Gagnier, appeal from a judgment entered June 29, 2007 in the United States District Court for the Northern District of New York (Hurd, J.). Sua sponte and on defendant Exxon Mobil’s motion for summary judgment and defendant Gagnier’s order to show cause, the district court dismissed all claims and cross-claims. We assume the parties’ familiarity with the underlying facts, the procedural history, and the issues presented for review.
On appeal, Lambrinos argues that the district court erred by dismissing his claims against Gagnier for lack of “standing.” Lambrinos also argues, as assignee of Exxon Mobil’s cross-claims against Gag-nier, that the district court erred by dismissing the assigned cross-claims for statutory contribution. Gagnier argues that the district court erred by dismissing his cross-claim against Exxon Mobil for damages under the New York Navigation Law. We have considered Lambrinos’ and Gag-nier’s arguments and find that they warrant partial vacatur and remand.
1. Lambrinos’ claims against Gagnier were improperly dismissed by the district court for lack of “standing.” While the district court’s legal basis for this dismissal is somewhat unclear, the issue is, properly understood, one concerning the real party in interest. The assignment was sufficient to render Lambrinos the real party in interest for purposes of Rule 17(a) of the Federal Rules of Civil Procedure. See Rosenblum v. Dingfelder, 111 F.2d 406, 407 (2d Cir.1940); see also, Dubuque Stone Prods. Co. v. Fred L. Gray Co., 356 F.2d 718, 723-24 (8th Cir.1966) (holding assignment after commencement of action sufficient to satisfy Rule 17); Kilbourn v. W. Sur. Co., 187 F.2d 567, 571 (10th Cir.1951) (same). Moreover, the preferable course is to cure any Rule 17 defects by granting leave to amend, rather than to dismiss the affected claims. See Fed.R.Civ.P. 17(a)(3); Advanced Magnetics, Inc. v. Bayfront Partners, Inc., 106 F.3d 11, 20 (2d Cir.1997) (holding that, even though district court retains discretion despite Rule 17(a)(3) to dismiss an action for failure to commence in the name of the real party in interest, “substitution ... should be liberally allowed when the change is merely formal and in no way alters the original complaint’s factual allegations as to the events or the participants”).
2. Exxon Mobil’s cross-claims against Gagnier (assigned to Lambrinos) for statutory contribution were improper*615ly dismissed. In its responsive pleadings, Exxon Mobil asserted both common law and statutory cross-claims for contribution. The district court dismissed the statutory cross-claims on the basis of Exxon Mobil’s previously established status as a “discharger” and dismissed its common law cross-claim on the basis of “the expressed provisions of the General Obligations Law.” On appeal, Lambrinos appears to contest only dismissal of the statutory claims: He cites only cases discussing statutory contribution claims and makes only statutory arguments. Accordingly, we review the district court’s ruling only insofar as it dismissed Exxon’s Mobil’s statutory contribution claims. Under neither § 181(5) nor § 176(8) of the New York Navigation Law is Exxon Mobil’s status as a “discharger” — as defined in § 181(1) of the New York Navigation Law — alone sufficient to bar its recovery. See Booth Oil Site Admin. Group v. Safety Kleen Corp., 532 F.Supp.2d 477, 511 (W.D.N.Y.2007). Dismissal of Exxon Mobil’s cross-claims for statutory contribution on the ground that it was a “dischar-ger” was accordingly erroneous.
3. Gagnier’s cross-claim against Exxon Mobil for damages under § 181(5) of the New York Navigation Law was improperly dismissed. Exxon Mobil failed to raise a statute of limitations defense to Gagnier’s cross-claim in its responsive pleadings, raising it for the first time in its January 5, 2007 motion for summary judgment. Though a district court has the discretion to consider an otherwise forfeited statute of limitations defense when deciding a motion for summary judgment, Block v. First Blood Assocs., 988 F.2d 344, 350 (2d Cir.1993), it is unclear that the district court affirmatively decided to exercise that discretion; no rationale is stated with sufficient particularity to permit review. In such circumstances, its consideration of the defense was an abuse of discretion. See Stone v. Nat’l Bank & Trust Co., No. 92-cv-211, 1996 WL 310351, at *1 (N.D.N.Y. June 6, 1996) (considering statute of limitations defense raised for the first time at summary judgment upon a finding that no prejudice resulted); Steinberg v. Columbia Pictures Indus., Inc., 663 F.Supp. 706, 715 (S.D.N.Y.1987) (“ ‘[Absent prejudice to the plaintiff, a defendant may raise an affirmative defense in a motion for summary judgment for the first time.’ ”) (emphasis added; alterations in original) (quoting Rivera v. Anaya, 726 F.2d 564, 566 (9th Cir.1984)).
Insofar as the district court’s ruling was premised on discovery violations, the ruling was similarly an abuse of discretion. Though a district court has “ ‘wide discretion’ in imposing sanctions” for discovery violations, Shcherbakovskiy v. Da Capo Al Fine, Ltd., 490 F.3d 130, 135 (2d Cir.2007) (quoting Daval Steel Prods. v. M/V Fakredine, 951 F.2d 1357, 1365 (2d Cir.1991)), the district court’s decision to exercise that discretion here was stated with insufficient particularity to permit review. The district court made no factual findings regarding Gagnier’s purported violations, and no consideration of lesser sanctions appears in the record. In such circumstances, the district court’s ruling was an abuse of discretion. See id. at 135-40.
For the foregoing reasons, the judgment of the district court is hereby VACATED IN PART, insofar as it dismissed Lambri-nos’ claims, Exxon Mobil’s statutory cross-claims for contribution, and Gagnier’s statutory cross-claim for damages, and REMANDED to the district court for further proceedings consistent with this Order.
|
01-04-2023
|
11-05-2022
|
https://www.courtlistener.com/api/rest/v3/opinions/8473353/
|
SUMMARY ORDER
Petitioner Yue Xiang Xiao, a native and citizen of the People’s Republic of China, seeks review of an October 11, 2007, order of the BIA affirming the February 19, 2002, decision of Immigration Judge (“IJ”) Helen Sichel, denying her application for asylum, withholding of removal, and relief under the Convention Against Torture (“CAT”). In re Yue Xiang Xiao, No. A078 715 915 (B.I.A. Oct. 11, 2007), aff'g No. A078 715 915 (Immig. Ct. N.Y. City Feb. 19, 2002). We assume the parties’ familiarity with the underlying facts and procedural history in this case.
When the BIA adopts the decision of the IJ and supplements the IJ’s decision, we review the decision of the IJ as supplemented by the BIA. See Yan Chen v. Gonzales, 417 F.3d 268, 271 (2d Cir.2005). We review the agency’s factual findings under the substantial evidence standard. 8 U.S.C. § 1252(b)(4)(B); see Corovic v. Mukasey, 519 F.3d 90, 95 (2d Cir.2008). Questions of law and the application of law to undisputed fact are reviewed de novo. See, e.g., Salimatou Bah v. Mukasey, 529 F.3d 99, 110 (2d Cir.2008).
As an initial matter, Xiao failed to administratively exhaust her claim that the IJ violated her right to due process by failing to consider all the evidence in the record. Although the BIA lacks jurisdiction over constitutional claims, the BIA can adjudicate underlying issues concerning fairness of process and statutory interpretation. See Theodoropoulos v. INS, 358 F.3d 162, 172-73 (2d Cir.2004). Thus, as long as the BIA can provide the possibility of relief, the issue must be exhausted before the agency. See id. Accordingly, because the BIA could have provided relief by finding that the IJ erred and remanding for consideration of the evidence in question, we lack jurisdiction to review Xiao’s due process claim. See 8 U.S.C. § 1252(d)(1).
*618In addition, we find that the agency’s adverse credibility determination was supported by substantial evidence. See Corovic, 519 F.3d at 95. The IJ reasonably based her credibility finding on implausible aspects of Xiao’s testimony, internal inconsistencies in her testimony, and discrepancies between her testimony and the record evidence. See id.
The IJ found implausible Xiao’s testimony that: 1) she retained the IUD that had allegedly been forcefully inserted after her arrival in the United States because she did not know where she could go to have it removed; and 2) Xiao’s claim that she voluntarily gave birth to her second child in the same hospital where she had given birth to her first even though she had been hiding in another city because she feared that her pregnancy would be forcibly aborted. The inferences that the IJ drew in making these findings were both “tethered to the evidentiary record” and reasonable in light of common sense and ordinary experience. See Siewe v. Gonzales, 480 F.3d 160, 168-69 (2d Cir.2007).
In addition, the IJ identified internal inconsistencies in Xiao’s testimony as well as discrepancies between her testimony and the record evidence. First, the IJ noted that, although Xiao initially testified that she had lived in New York City since she arrived in the United States, she later admitted that she actually lived in New Jersey and only spent a few nights a month in New York.
The IJ also noted that, although Xiao testified that her mother paid the fine that was imposed on her because of her violation of the family-planning policy, the fine receipt stated that Xiao paid the fine personally. In addition, the IJ noted that Xiao could not have registered her daughter’s birth in person as she claimed because, according to the family registration booklet, her daughter was registered during a period of time when Xiao was in hiding. Moreover, the IJ noted that, while Xiao testified that she left China in December 1999, her household registration indicated that she left China in May 1999 and her registration was cancelled in November 1999.
The discrepancy that the IJ noted with regard to Xiao’s address was minor and ancillary to her claim. See Latifi v. Gonzales, 430 F.3d 103, 105 (2d Cir.2005). However, the remaining inconsistencies identified by the IJ served to undermine the overall credibility of Xiao’s testimony. See Tu Lin v. Gonzales, 446 F.3d 395, 402 (2d Cir.2006); see also Liang Chen v. U.S. Att’y Gen’l, 454 F.3d 103, 106-07 (2d Cir.2006). Accordingly, the adverse credibility determination was supported by substantial evidence. See Corovic, 519 F.3d at 95
Although Xiao submitted voluminous background materials to establish that she would be subject to sterilization in China on account of having two children in violation of the family-planning policy, the BIA reasonably found that documentation insufficient to support a well-founded fear of future persecution given Xiao’s incredible testimony and the lack of reliable evidence establishing that Xiao ever had contact with family-planning officials after the birth of her second child. See Jian Hui Shao v. Mukasey, 546 F.3d 138, 169-72 (2d Cir.2008).
The agency did not err in finding that, regardless of Xiao’s lack of credibility, the background materials that she submitted, which included the 1998 Asylum Profile for China and the 2000 Country Report for China, were insufficient to establish a well-founded fear of future persecution. See Jian Hui Shao, 546 F.3d at 169-72. We *619have previously reviewed, in the context of an untimely motion to reopen, the BIA’s consideration of the evidence that Xiao submitted, as well as evidence similar to it, and found no error in its conclusion that such evidence was insufficient to establish that an applicant who gave birth to two children in China would be subject to family planning enforcement activities amounting to persecution. See id.
Because Xiao failed to meet her burden of proof with respect to her asylum claim, she also necessarily failed to meet the higher burden imposed by her claims for withholding of removal and CAT relief, which shared the same factual predicate. See Paul v. Gonzales, 444 F.Bd 148, 156-57 (2d Cir.2006).
For the foregoing reasons, the petition for review is DENIED. As we have completed our review, any stay of removal that the Court previously granted in this petition is VACATED, and any pending motion for a stay of removal in this petition is DISMISSED as moot. Any pending request for oral argument in this petition is DENIED in accordance with Federal Rule of Appellate Procedure 34(a)(2), and Second Circuit Local Rule 34(b).
|
01-04-2023
|
11-05-2022
|
https://www.courtlistener.com/api/rest/v3/opinions/8473357/
|
SUMMARY ORDER
Petitioner, Xiu Fang Zheng, a native and citizen of the People’s Republic of China, seeks review of a December 3, 2007 order of the BIA denying her motion to reopen her removal proceedings and affirming the August 26, 2004 decision of immigration judge (“IJ”) Roxanne C. Hladylowycz denying Zheng’s applications for asylum, withholding of removal, and relief under the Convention Against Torture (“CAT”). In re Xiu Fang Zheng, No. A079 408 005 (B.I.A. Dec. 3, 2007), aff'g A079 408 005 (Immig. Ct. N.Y. City Aug. 26, 2004). We assume the parties’ familiarity with the underlying facts and procedural history of the case.
As an initial matter, Zheng requests that this Court take administrative notice of the U.S. Department of State’s 2006 and 2007 Country Reports on Human Rights Practices for China. We deny that request. See 8 U.S.C. § 1252(b)(4)(A); Xiao Xing Ni v. Gonzales, 494 F.3d 260, 269-70 (2d Cir.2007).
1. Asylum, Withholding of Removal, and CAT Relief
When the BIA adopts the decision of the IJ and supplements the IJ’s decision, this Court reviews the decision of the IJ as supplemented by the BIA. See Yan Chen v. Gonzales, 417 F.3d 268, 271 (2d Cir.2005). This Court reviews the agency’s factual findings under the substantial evidence standard. See 8 U.S.C. § 1252(b)(4)(B); see also Manzur v. U.S. Dep’t of Homeland, Sec., 494 F.3d 281, 289 (2d Cir.2007). We review de novo questions of law and the application of law to undisputed fact. See Salimatou Bah v. Mukasey, 529 F.3d 99, 110 (2d Cir.2008).
Zheng argues that she demonstrated a well-founded fear of persecution based on her practice of Falun Gong because the Chinese government is aware of her practice and the U.S. Department of State’s 2002 Country Report on Human Rights Practices for China indicates that the Chinese government engages in a “harsh and comprehensive campaign” against Falun Gong practitioners.2 We find no error, however, in the agency’s denial of her asylum application. The BIA properly found that police have not visited her parents’ home to look for her since October 2001 and that her parents were never harmed or threatened during their encounters with police. Although the Department of State report indicates that some Falun Gong practitioners are subject to severe mistreatment, the report also indicates that an individual’s treatment correlates with the level of participation. Zheng’s participation in Falun Gong in China was limited; the government has not expressed an interest in her in more than six years; and her parents were not harmed or threatened in their prior encounters with police. The record thus supports the BIA’s finding that Zheng did not establish a well-founded fear of persecution. See Jian Xing Huang v. INS, 421 F.3d 125, 128-29 (2d Cir.2005) (per curiam) (holding that, absent solid support in the record for the petitioner’s assertion that he would be persecuted, his fear was “speculative at best”).3
*624Because Zheng was unable to show the objective likelihood of persecution needed to make out an asylum claim, she was necessarily unable to meet the higher standard required to succeed on a claim for withholding of removal or CAT relief because the three claims rest on the same factual predicate. See Paul v. Gonzales, 444 F.3d 148, 156 (2d Cir.2006); Kyaw Zwar Tun v. INS, 445 F.3d 554, 567 (2d Cir.2006) (holding that torture is “something more severe than the kind of treatment that would suffice to prove persecution”).
II. Motion to Reopen
We review the BIA’s denial of a motion to reopen for abuse of discretion. Ali v. Gonzales, 448 F.3d 515, 517 (2d Cir.2006) (per curiam). When the BIA considers relevant evidence of country conditions in evaluating a motion to reopen, we review the BIA’s factual findings under the substantial evidence standard. See Jian Hui Shao v. Mukasey, 546 F.3d 138, 169 (2d Cir.2008).
The BIA did not abuse its discretion in denying Zheng’s motion to reopen because she failed to demonstrate her prima facie eligibility for relief. We have previously reviewed the BIA’s consideration of evidence similar to the evidence Zheng submitted, and have found no error in its conclusion that such evidence was insufficient to establish material changed country conditions or an objectively reasonable fear of persecution. See id. at 171 (noting that “[w]e do not ourselves attempt to resolve conflicts in record evidence, a task largely within the discretion of the agency”); see also Wei Guang Wang v. BIA, 437 F.3d 270, 275 (2d Cir.2006) (noting that while the BIA must consider evidence such as “the oft-cited Aird affidavit, which [it] is asked to consider time and again[,] ... it may do so in summary fashion without a reviewing court presuming that it has abused its discretion”). Nothing in the record compels us to conclude that the BIA ignored the evidence Zheng submitted or the arguments she made, evidence and arguments the BIA is asked to consider time and again. See Xiao Ji Chen v. U.S. Dep’t of Justice, 471 F.3d 315, 338 n. 17 (2d Cir.2006). Contrary to Zheng’s assertion, the BIA did not abuse its discretion when it discounted the significance of a document purporting to be a 2006 notice issued by the Fujian Province family planning authorities; the document bears fax dates from 2001 and 2005. See id. at 342 (finding that the weight afforded to the applicant’s evidence in immigration proceedings lies largely within the discretion of the agency).
For the foregoing reasons, the petition for review is DENIED. As we have completed our review, any pending motion for a stay of removal in this petition is DISMISSED as moot. Any pending request for oral argument in this petition is DENIED in accordance with Federal Rule of Appellate Procedure 34(a)(2), and Second Circuit Local Rule 34(b).
. Because Zheng failed to challenge the IJ’s finding that she did not demonstrate past persecution either before the BIA or this Court, we deem any such challenge abandoned. See Gui Yin Liu v. INS, 508 F.3d 716, 723 n. 6 (2d Cir.2007).
. Contrary to the government’s argument, Zheng has never made a pattern or practice claim.
|
01-04-2023
|
11-05-2022
|
https://www.courtlistener.com/api/rest/v3/opinions/8473361/
|
SUMMARY ORDER
Plaintiff-Appellant Michael Hammond appeals from the decision of the United States District Court for the Eastern District of New York (Spatt, J.), entered May 15, 2009, granting summary judgment to Defendants-Appellees Keyspan Energy and National Grid (“Keyspan”). On appeal, Hammond argues that the District Court erred in finding that the summary judgment evidence could not support a claim under the Americans with Disabilities Act (“ADA”), 42 U.S.C. § 12101 et seq. We assume the parties’ familiarity with the underlying facts, procedural history, and specification of the issues on appeal.
We review the grant of summary judgment on appeal de novo. Howley v. Town of Stratford, 217 F.3d 141, 151 (2d Cir.2000). Summary judgment is appropriate when, after all evidence is construed in the light most favorable to the non-moving party, there is no genuine issue of material fact. June v. Town of Westfield, 370 F.3d 255, 257 (2d Cir.2004). To establish a claim of discrimination based on disability, a plaintiff must show that “(1) his employer is subject to the ADA; (2) he was disabled within the meaning of the ADA; (3) he was otherwise qualified to perform the essential functions of his job, with or without reasonable accommodation; and (4) he suffered [an] adverse employment action because of his disability.” Cameron v. Cmty. Aid for Retarded Children, Inc., 335 F.3d 60, 63 (2d Cir.2003) (alteration in original).
The ADA bars covered entities from “diseriminat[ing] against a qualified individual on the basis of disability.” 42 U.S.C. § 12112. “Disability” under the ADA includes physical or mental impair-*631merits that substantially limit one or more of an individual’s major life activities; an individual may also qualify as disabled when “regarded as” having such an impairment. Id. § 12102(1)(A), (C). Whether an individual is “regarded as” having a disability is a question of the employer’s intent; rather than whether the employee actually has a disability. Colwell v. Suffolk County Police Dep’t, 158 F.3d 635, 646 (2d Cir.1998). In order to prevail on a “regarded as” claim, a plaintiff must show that his employer regarded him as having an impairment that substantially limited a major life activity. Id. When the major life activity in question is working, the plaintiff must be perceived as unable to perform a “broad class of jobs.” Giordano v. City of New York, 274 F.3d 740, 749-50 (2d Cir.2001) (internal quotation marks omitted).
Hammond has failed to produce evidence to show that Keyspan regarded him as being disabled within the meaning of the ADA. Hammond has failed to show that his employer regarded him as suffering from alcoholism or as being unable to perform a broad class of jobs. Keyspan continued to employ Hammond after he violated the company’s drug policy in November 2001, and it rehired him pursuant to its standard procedure after his termination for the violation at issue, moving him to first class lineman after a year as a splicer. There is no evidence in the record that Hammond possessed or used alcohol during working hours on any occasion pri- or to May 18, 2005, nor has Hammond offered evidence suggesting that Keyspan regarded him as suffering from alcoholism at that time. Indeed, his supervisors permitted Hammond to remain in a safety-sensitive job during the period prior to May 18 and, in fact, they promoted him to foreman. Although Hammond alleges that manager Patrick Noonan informed supervisor Michael Abrams that “Mr. Hammond had a drug and alcohol abuse problem” prior to May 18, Appellant’s Br. 21, the deposition testimony cited by Hammond actually indicates that Noonan simply told Abrams that Hammond had violated the corporate alcohol and drug policy on a previous occasion, a true statement. Given the evidence produced, we therefore conclude that the district court did not err in dismissing Hammond’s ADA claim.
All arguments not otherwise discussed in this summary order are found to be moot or without merit.
For the foregoing reasons, the judgment of the district court is hereby affirmed.
|
01-04-2023
|
11-05-2022
|
https://www.courtlistener.com/api/rest/v3/opinions/8473363/
|
SUMMARY ORDER
Plaintiff-Appellant Instead, Inc. (“Instead”) appeals from a judgment of the United States District Court for the Southern District of New York (Cote, J.) entered on February 5, 2009, dismissing its complaint against Defendants-Appellees ReProtect, Inc. (“ReProtect”) and individual Defendants for failure to state a claim upon which relief could be granted under Fed.R.Civ.P. 12(b)(6). The district court found that the 1998 Asset Purchase Agreement (hereinafter “Purchase Agreement”) between Ultrafem, Inc. (“Ultrafem”) and Akcess Pacific Group, LLC (“Akcess”), pursuant to which Instead claims rights as assignee, unambiguously excluded from the assets Ultrafem sold to Akcess any rights pursuant to Ultrafem’s 1996 License, Research and Product Development Agreement with ReProtect (hereinafter “1996 Agreement”). The district court ae-*633cordingly dismissed Instead’s complaint seeking a declaration of its rights and damages against ReProtect for anticipatory breach. We assume the parties’ familiarity with the underlying facts, procedural history, and specification of the issues on appeal.
We review de novo a dismissal of a complaint under Rule 12(b)(6). Jaghory v. N.Y. State Dep’t of Educ., 131 F.3d 326, 329 (2d Cir.1997). We must assume that all well-pleaded facts alleged in the complaint are true and draw all reasonable inferences in the Plaintiffs favor. Chapman v. N.Y. State Div. of Youth, 546 F.3d 230, 235 (2d Cir.2008). The interpretation of a contract is a question of law that we also review de novo. Compagnie Financiere de CIC et de L’Union Europeenne v. Merrill Lynch, Pierce, Fenner & Smith Inc., 232 F.3d 153, 158 (2d Cir.2000). Under New York law, which governs both agreements at issue here, a contractual term is not ambiguous “simply because the parties urge different interpretations.” Hugo Boss Fashions, Inc. v. Fed. Ins. Co., 252 F.3d 608, 616 (2d Cir.2001). “The court should not find the language ambiguous on the basis of the interpretation urged by one party, where that interpretation would strain the contract language beyond its reasonable and ordinary meaning.” Metro. Life Ins. Co. v. RJR Nabisco, Inc., 906 F.2d 884, 889 (2d Cir.1990) (quotation marks and citation omitted).
We find the language of the Purchase Agreement unambiguous in its exclusion of the rights created by the 1996 Agreement from the “Assets” sold by Ultrafem to Akcess. The Purchase Agreement conveys to Akcess all of Ultrafem’s “right, title and interest in and to the patents ... and other intangible property ..., the material items of which are listed on Schedule 1.1(a), including but not limited to, product formulas, research and development, trade secrets and know how.” Purchase Agreement ¶ 1.1(a). Neither the 1996 Agreement nor any rights held by Ultrafem pursuant to that Agreement are referenced specifically in the conveyance. Listed in a Schedule of those assets “Excluded” from the Purchase Agreement, moreover, is the 1996 Agreement:
Agreement dated as of February 8, 1996 between Seller and ReProtect, LLC. Seller has not made payments required thereunder for the months of March, April, May, and June 1998, and Seller is in default thereunder.
Id. Sched. 1.4. Giving the terms of the contract them most natural and plain meaning, see ReliaStar Life Ins. Co. of N.Y. v. EMC Nat’l Life Co., 564 F.3d 81, 88 (2d Cir.2009), the 1996 Agreement, which created all the rights claimed by Instead in its complaint, was excluded from Ultrafem’s asset sale to Akcess.
We find Instead’s arguments to the contrary unpersuasive. First, Instead’s contention that Schedule 1.4’s exclusion applies only to the research and development portion of the 1996 Agreement is highly implausible. Nowhere does the Purchase Agreement suggest that the various parts of the 1996 Agreement should be treated as separate contracts: The 1996 Agreement is listed as one agreement in the Schedule of Ultrafem’s “Executory Contracts,” Purchase Agreement Sched. G, and Ultrafem’s “Intellectual Property,” id. Sched. 3.6. Further, Paragraph 3.6 of the Purchasing Agreement notes that Schedule 3.6 lists “all intellectual property of Seller.” Id. ¶ 3.6 (emphasis added). Schedule 3.6, in turn, lists the 1996 Agreement using identical language to Schedule 1.4, along with those “Intangible Assets” to be conveyed that are listed in Schedule 1.1(a). The use of the same language in Schedules 1.4 and 3.6 suggests that the reference to the 1996 Agreement is to the entire agreement; otherwise, under In*634stead’s theory, Schedule 3.6 would not list “all [Ultrafem’s] intellectual property” because it would fail to mention the portions of the 1996 Agreement not related to research and development.
Second, Instead argues that while the 1996 Agreement may have been excluded from the Purchase Agreement, Ultrafem’s rights under the 1996 Agreement vested separately. Instead argues that because these separate vested rights were not excluded specifically by the Purchase Agreement, they passed from Ultrafem to Akcess, and then to Instead. Instead contends that the fact these separate rights were not listed as “material” assets in Schedule 1.1(a) is of no moment because Schedule 1.1(a) was not the exclusive list of Ultrafem’s assets.
We are not persuaded by this argument. The Purchase Agreement treats the 1996 Agreement as a single entity, excluding it as an “Asset,” and contains no provision that can be interpreted to convey the alleged separate vested rights to Akcess. Moreover, we agree with Instead that Schedule 1.1(a) is not the exhaustive list of Ultrafem’s assets. However, Schedule 3.6 is the exhaustive list of Ultrafem’s intellectual property, and it includes only those items listed in Section 1.1(a) as “material” assets and the rights created under the 1996 Agreement. That Schedule treats the 1996 Agreement as a whole, and the 1996 Agreement is excluded as a whole under Schedule 1.4.
Finally, we conclude that the district court did not rely on any improper materials outside of the complaint in reaching its decision, as the Plaintiff argues. The passage of the district court’s opinion that the Plaintiff refers to is merely a summary of the terms of the 1996 Agreement, and in no way resolves any factual dispute. We also decline to remand the case for the district court to consider Instead’s first and second claims for relief. Because we have concluded that Instead never owned any rights under the 1996 Agreement, no “actual controversy” between Instead and ReProtect exists with regard to whether those rights may have terminated. See 28 U.S.C. § 2201.
We have reviewed Instead’s remaining arguments and find them to be without merit.
For the foregoing reasons, the judgment of the district court is hereby affirmed.
|
01-04-2023
|
11-05-2022
|
https://www.courtlistener.com/api/rest/v3/opinions/8473365/
|
SUMMARY ORDER
Petitioner Chuan Zhi Wang, a native and citizen of the People’s Republic of China, seeks review of the January 30, 2009 order of the BIA affirming the November 1, 2006 decision of Immigration Judge (“IJ”) Sandy K. Horn denying his applications for asylum, withholding of removal, and relief under the Convention Against Torture (CAT). In re Chuan Zhi Wang, No. A099 538 159 (B.I.A. Jan. 30, 2009), aff'g No. A099 538 159 (Immig. Ct. N.Y. City Nov. 1, 2006). We assume the parties’ familiarity with the underlying facts and procedural history of the case.
We review the agency’s factual findings, including adverse credibility determinations, under the substantial evidence standard. 8 U.S.C. § 1252(b)(4)(B); see Dong Gao v. BIA, 482 F.3d 122, 126 (2d Cir.2007). We review de novo questions of law and the application of law to undisputed *636fact. See Salimatou Bah v. Mukasey, 529 F.3d 99, 110 (2d Cir.2008).
The agency’s adverse credibility finding is supported by substantial evidence. Because Wang’s application was filed after May 11, 2005, the amendments made to the Immigration and Nationality Act by the REAL ID Act apply.
The IJ noted inconsistencies in Wang’s testimony concerning the circumstances surrounding his arrival in the United States. Further, IJ reasonably found that, despite claiming persecution on account of his practice of Catholicism, Wang failed to exhibit even a basic understanding of this religion, and did not corroborate his claim that he had attended Catholic mass subsequent to his arrival in the United States. Indeed, despite claiming that he went to mass weekly, that he had been doing so since his youth, and that he had been arrested in China for reciting Bible stories, Wang could not recall any portion of a recent sermon, nor could he identify any story from the Bible. Accordingly, although we have held that “a certain degree of doctrinal knowledge is [not] necessary ... to be eligible for asylum on grounds of religious persecution,” in these circumstances, it was not improper for the IJ to find Wang not credible based on his ignorance of even the most basic aspects of his religion. Rizal v. Gonzales, 442 F.3d 84, 91 (2d Cir.2006) (citing Zhen Li Iao v. Gonzales, 400 F.3d 530, 533 (7th Cir.2005) (holding that a purported Christian who did not know, for example, who Jesus Christ was would be “instantly suspect”)).
Because substantial evidence supports the agency’s adverse credibility determination, it did not err in denying Wang’s applications for asylum and withholding of removal because both claims were based on the same factual predicate. See Paul v. Gonzales, 444 F.3d 148, 156-57 (2d Cir.2006). Moreover, although Wang argues that the agency erred by denying his claim for CAT relief based on his illegal departure from China, the agency correctly found that Wang failed to demonstrate that it was more likely than not he would be tortured if returned to that country. It is well-settled that the agency does not err in finding that a petitioner is not “entitled to CAT protection based solely on the fact that she is part of the large class of persons who have illegally departed China,” see Mu Xiang Lin v. U.S. Dep’t of Justice, 432 F.3d 156, 160 (2d Cir.2005), and Wang failed to present any particularized evidence demonstrating that it was more likely than not he would be tortured if returned to China, see id. (citing Mu-Xing Wang v. Ashcroft, 320 F.3d 130, 144 n. 21 (2d Cir.2003)).
Finally, Wang’s allegation that the IJ was biased against him is unfounded. The instances Wang cites in support of this argument concern statements made by his own attorney, not the IJ. Cf. Ali v. Mukasey, 529 F.3d 478, 490 (2d Cir.2008) (“[W]hen the IJ’s conduct results in the appearance of bias or hostility such that we cannot conduct a meaningful review of the decision below, we remand.”); accord Islam v. Gonzales, 469 F.3d 53, 55 (2d Cir.2006).
For the foregoing reasons, the petition for review is DENIED. As we have completed our review, any stay of removal that the Court previously granted in this petition is VACATED, and any pending motion for a stay of removal in this petition is DISMISSED as moot. Any pending request for oral argument in this petition is DENIED in accordance with Federal Rule of Appellate Procedure 34(a)(2), and Second Circuit Local Rule 34(b).
|
01-04-2023
|
11-05-2022
|
https://www.courtlistener.com/api/rest/v3/opinions/8473367/
|
SUMMARY ORDER
Plaintiff-Appellant Brian Rosner appeals from a judgment of the United States District Court for the Southern District of New York (Marrero, J.) entered December 18, 2008, dismissing his complaint against Defendant-Appellee the Bank of China (“BOC”) for failure to state a claim upon which relief can be granted and for failure to plead fraud with particularity. Rosner is the court-appointed Permanent Equity Receiver for International Financial Services (New York), Inc. (“IFS”) an(j other entities that were found to have engaged in fraudulent sales of investments in overseas currency trades in a civil enforcement proceeding brought by the Commodity Futures Trading Commission. See CFTC v. Int’l Fin. Servs. (N.Y.), Inc., 323 F.Supp.2d 482, 499-503 (S.D.N.Y.2004). Rosner brought this action against BOC alleging claims of aiding and abetting common law fraud and commercial bad faith in BOC’s processing of bank transactions that were a part of IFS’s fraudulent scheme. We assume the parties’ familiarity with the underlying facts, procedural history, and specification of the issues on appeal.
We review de novo a dismissal of a complaint under Rule 12(b)(6). Jaghory v. N.Y. State Dep’t of Educ., 131 F.3d 326, 329 (2d Cir.1997). “When we review the grant of a motion to dismiss under Rule 9(b) or Rule 12(b)(6), we accept as true the factual allegations of the complaint, and draw all inferences in favor of the pleader.” Mills v. Polar Molecular Corp., 12 F.3d 1170, 1174 (2d Cir.1993). We cannot make inferences unsupported by the facts alleged in the complaint, however: “To survive dismissal, the plaintiff must provide the grounds upon which his claim rests through factual allegations sufficient ‘to raise a right to relief above the speculative level.’ ” ATSI Commc’ns, Inc. v. Shaar Fund, Ltd., 493 F.3d 87, 98 (2d Cir.2007) (quoting Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555, 127 S.Ct. 1955, 167 L.Ed.2d 929 (2007)).
To state a claim for aiding and abetting fraud under New York law, a plaintiff must show 1) the existence of a fraudulent scheme, 2) that the defendant had actual knowledge of the fraud, and 3) that the defendant provided substantial assistance to the fraudulent scheme. Lerner v. Fleet Bank, N.A., 459 F.3d 273, 292 (2d Cir.2006). We find that Rosner has not alleged under any theory that BOC had actual knowledge of IFS and Siu Lap’s fraudulent scheme and therefore affirm the district court’s judgment dismissing this claim. To the extent Rosner attempts to re-argue any of the five theories of actual knowledge raised in his Second Amended Complaint (“Complaint”), Compl. ¶¶ 89-94, we agree substantially with the reasoning set forth in the district court’s opinion that these theories lack merit.
Rosner argues on appeal a somewhat different theory of BOC’s actual knowledge of the fraudulent scheme: based on his analysis of transaction records, Rosner now argues that BOC had actual knowledge that Siu Lap was a “bogus currency trading company” and “a shell company” that was engaged in money laundering at BOC’s Macau branch; that *639BOC-Macau had actual knowledge of this money laundering; and that this knowledge constitutes actual knowledge of the fraudulent scheme.1 We are not persuaded. Even if BOC had reason to suspect that Siu Lap was laundering money, this does not mean that BOC had actual knowledge of the fraudulent scheme perpetrated by IFS and Siu Lap. No facts alleged in the Complaint indicate why BOC knew that the money Siu Lap was receiving into its company account was the proceeds of a fraud committed by a different entity, the sale of investments in currency trades to investors through false and misleading statements. See CFTC v. Int'l Fin. Servs. (N.Y.), Inc., 323 F.Supp.2d at 499-500 (describing the fraud committed by IFS on its investors); cf. Lerner, 459 F.3d at 293.
The cases on which Rosner relies do not change this analysis, and in fact demonstrate the factual deficiencies in Rosner’s own complaint. In Wight v. BankAmerica Corp., 219 F.3d 79 (2d Cir.2000), this Court found that the plaintiff had properly alleged that the defendant had actual knowledge of a fraudulent scheme because the bank’s employees had “longstanding personal ties” to the parties to the fraud, id. at 82, and a bank employee testified that he knew that the parties to the fraud were “shell” companies, id. at 92. Rosner, by contrast, provides no factual support whatsoever for his allegation that Siu Lap was a “shell company,” and the Complaint alleges no facts that would suggest that any BOC employee knew anything about Siu Lap or IFS other than through Siu Lap’s transactions with the bank. In Mazzaro re Abreu v. Bank of America Corp., 525 F.Supp.2d 381 (S.D.N.Y.2007), the court found that the plaintiff had properly alleged that the bank defendants had actual knowledge of fraud because, among other reasons, they made transfers to “entities [they] knew were black market currency traders.” Id. at 389 (internal quotation marks omitted) (emphasis added). Finally, in Prudential-Bache Securities, Inc. v. Citibank, N.A., 73 N.Y.2d 263, 539 N.Y.S.2d 699, 536 N.E.2d 1118 (1989), the court found that the plaintiff had properly alleged that Citibank had actual knowledge of the fraud, sufficient for a claim of commercial bad faith, because two of its employees participated in the scheme and knew of the illegal conduct. Id. at 1126. Rosner alleges no analogous facts.
At bottom, the facts alleged in Rosner’s complaint only go so far as to suggest that BOC should have known that something was amiss with Siu Lap’s transactions, Rosner’s conclusory statements on appeal that BOC actually knew something notwithstanding. As the district court held, such a showing is insufficient to support an aiding-and-abetting claim under New York law. See, e.g., Chemtex, LLC v. St. Anthony Enters., Inc., 490 F.Supp.2d 536, 546-47 (S.D.N.Y.2007); Nigerian Nat’l Petroleum Corp. v. Citibank, N.A., No. 98 Civ. 4960, 1999 WL 558141, at *1-2, 7-8 (S.D.N.Y. July 30, 1999) (noting that bank’s knowing disregard of several indications of fraud, including transfer of funds from a company’s account to a personal account, did not amount to bank’s having actual knowledge of the fraudulent *640scheme); Prudential-Bache, 539 N.Y.S.2d 699, 536 N.E.2d at 1125-26 (A “lapse of [a bank’s] wary vigilance ... or even suspicious circumstances which might well have induced a prudent banker to investigate” are “insufficient to state a cause of action against a depositary bank.”) (quotation marks and citations omitted).
Because Rosner has failed to allege sufficient facts to support the inference that BOC had actual knowledge of the fraudulent scheme, the district court properly dismissed Rosner’s aiding-and-abetting claim. Given our determination that Ros-ner has not satisfied the “actual knowledge” requirement of this claim, we need not address whether BOC’s activities constituted “substantial assistance” in the fraudulent scheme. Because a “commercial bad faith” claim under New York law likewise requires a plaintiff to show actual knowledge of the fraudulent scheme, see Wight, 219 F.3d at 91, the district court properly dismissed that claim as well. We have considered all of Rosner’s remaining arguments and find them to be without merit.
For the foregoing reasons, the judgment of the district court is hereby affirmed.
. We express considerable doubt as to whether this theory of BOC's actual knowledge, or several of its factual predicates, was properly raised by Rosner before the district court. For example, the complaint contains no allegation at all that Siu Lap was a "shell company,” a charge that Rosner stresses in this Court. Because we find that, even under this new theory, Rosner has failed to plead actual knowledge, we need not conclusively resolve whether Rosner's theory was sufficiently raised before the district court.
|
01-04-2023
|
11-05-2022
|
https://www.courtlistener.com/api/rest/v3/opinions/8473369/
|
SUMMARY ORDER
Plaintiff-appellant Lok Prakashan, Ltd., doing business as Gujarat Samachar, appeals from the District Court’s grant of summary judgment dismissing plaintiffs complaint for legal malpractice against defendants-appellees Ralph A. Berman, Steven I. Kern, and their law firms — respectively, Davidoff Malito & Hutcher, LLP, and Kern Augustine Conroy & Schoppmann, P.C. Plaintiffs legal malpractice claims arose from an underlying lawsuit in which defendants represented plaintiff Samachar in a contractual dispute with his publisher. In an order dated November 1, 2005, the District Court granted defendants’ motion for summary judgment dismissing plaintiffs legal malpractice claims. Defendants then sought summary judgment on their counterclaims for unpaid legal fees and attorney’s fees and costs and, in an order dated December 12, 2008, 2008 WL 5274535, the District Court granted in part defendants’ motion. Plaintiff appeals from each of these holdings. We assume the parties’ familiarity with the underlying facts, the procedural history, and the issues on appeal.
Plaintiff argues that the District Court erred in granting summary judgment on the legal malpractice claim because there are material questions of fact on the issue of whether defendants were negligent in failing to introduce a particular document into evidence, and whether this alleged negligence proximately caused loss to the plaintiff. Plaintiff further asserts that if the legal malpractice claim goes to trial, the judgment in favor of defendants for their counterclaims should also be vacated.
We review de novo the District Court’s decision to grant summary judgment and, in the course of that review, we draw all *642permissible factual inferences in favor of the non-moving party. See, e.g., Holcomb v. Iona College, 521 F.3d 130, 137 (2d Cir.2008). In order to sustain a legal malpractice claim, plaintiff must show (1) the existence of an attorney-client relationship, (2) negligence, (3) which is the proximate cause of loss, and (4) actual damages. See Achtman v. Kirby, McInerney & Squire, LLP, 464 F.3d 328, 337 (2d Cir.2006). “A complaint that essentially alleges either an ‘error of judgment’ or a ‘selection of one among several reasonable courses of action’ fails to state a claim for malpractice.” Id.
The District Court concluded that “[b]e-cause there is ample evidence in the record that Defendants’ omission of the specified document was a conscious and reasonable decision regarding trial strategy, not negligence, and the omission of the document was not the proximate cause of any loss, Plaintiff has failed to show the elements required to support a claim of legal malpractice.” Order of November 1, 2005. We agree and, substantially for the reasons stated by the District Court in its well-reasoned orders of November 1, 2005 and December 12, 2008, find plaintiffs arguments to be without merit.
CONCLUSION
Accordingly, we AFFIRM the judgment of the District Court.
|
01-04-2023
|
11-05-2022
|
https://www.courtlistener.com/api/rest/v3/opinions/8473370/
|
SUMMARY ORDER
Petitioner Mohammed Tara Mian, a native and citizen of Bangladesh, seeks review of an August 25, 2008 order of the BIA affirming the June 21, 2007 decision of Immigration Judge (“IJ”) Steven R. Abrams, pretermitting his application for asylum and denying his applications for -withholding of removal and CAT relief. In re Mohammed Tara Miah, No. A079 122 874 (B.I.A. Aug. 25, 2008), aff'g No. A079 122 874 (Immig. Ct. N.Y. City June 21, 2007). We assume the parties’ familiarity with the underlying facts and procedural history in this case.
When the BIA affirms the IJ’s decision and supplements it, this Court reviews the IJ’s decision as supplemented by the BIA. See Yan Chen v. Gonzales, 417 F.3d 268, 271 (2d Cir.2005). We review the agency’s factual findings under the substantial evidence standard. 8 U.S.C. § 1252(b)(4)(B); see Corovic v. Mukasey, 519 F.3d 90, 95 (2d Cir.2008). Questions of law and the application of law to undisputed fact are reviewed de novo. See, e.g., Salimatou Bah v. Mukasey, 529 F.3d 99, 110 (2d Cir.2008).
We lack jurisdiction to review the agency’s finding that Miah failed to file his *644asylum application within one year of his arrival in the United States as required under 8 U.S.C. § 1158(a)(2)(B). See 8 U.S.C. § 1158(a)(3). Although this Court retains jurisdiction to review constitutional claims and “questions of law,” Miah has raised no such arguments in connection with the pretermission of his asylum application. See 8 U.S.C. § 1252(a)(2)(D). Accordingly, we dismiss the petition to the extent that it seeks review of the agency’s denial of Miah’s asylum claim.
Furthermore, we deny the petition with respect to Miah’s claims for withholding of removal and CAT relief because the agency’s adverse credibility determination was supported by substantial evidence. We recognize that the parties dispute the exact date of the filing of Mian’s application for relief, and, by extension, whether the amendments of the REAL ID Act of 2005 govern our review of the adverse credibility determination in this case. Ultimately, we need not resolve this issue because the agency’s credibility determination is supported by substantial evidence under the pre-REAL ID Act standard which is more favorable to Miah and which he contends applies.
As required under pre-REAL ID Act case law, the IJ identified “specific, cogent reasons” for rejecting Miah’s testimony that “b[ore] a legitimate nexus” to the IJ’s credibility finding. Secaida-Rosales v. INS, 331 F.3d 297, 307 (2d Cir.2003). The agency’s adverse credibility determination rested on Mian’s demeanor; the discrepancy between Miah’s testimony and documentary evidence in the record regarding whether Miah personally went to the pharmacy to obtain medication; the discrepancy in his testimony regarding his relationship with Tarekur Rahman; Miah’s inability to explain the meaning of the initials “BNP,” which is an acronym for the major political party that was in charge of the Bangladeshi government at the time Miah left the country; and his failure to submit documentary evidence corroborating his medical treatment. The agency reasonably relied on the cumulative effect of the discrepancies in the record to find that Miah was not credible. See Tu Lin v. Gonzales, 446 F.3d 395, 402 (2d Cir.2006). Moreover, we afford particular deference to the IJ’s evaluation of Mian’s demeanor. See Majidi v. Gonzales, 430 F.3d 77, 81 n. 1 (2d Cir.2005). Accordingly, the agency did not err in denying Mian’s claim for withholding of removal based on his lack of credibility.
The adverse credibility determination was also a valid basis for denying Miah’s CAT claim, as his CAT claim was based on the same factual predicate as his claim for withholding of removal. See Paul v. Gonzales, 444 F.3d 148, 156-57 (2d Cir.2006).
For the foregoing reasons, the petition for review is DISMISSED in part and DENIED in part. As we have completed our review, any stay of removal that the Court previously granted in this petition is VACATED, and any pending motion for a stay of removal in this petition is DISMISSED as moot. Any pending request for oral argument in this petition is DENIED in accordance with Federal Rule of Appellate Procedure 34(a)(2), and Second Circuit Local Rule 34(b).
|
01-04-2023
|
11-05-2022
|
https://www.courtlistener.com/api/rest/v3/opinions/8473372/
|
SUMMARY ORDER
Petitioner Zhang Cheng, a native and citizen of the People’s Republic of China, seeks review of a December 19, 2008 order of the BIA denying his motion to reopen. In re Zhang Cheng, No. A073 133 454 (B.I.A. Dec. 19, 2008). We assume the parties’ familiarity with the underlying facts and procedural history in this case.
We review the BIA’s denial of a motion to reopen for abuse of discretion. Ali v. Gonzales, 448 F.3d 515, 517 (2d Cir.2006) (citing INS v. Doherty, 502 U.S. 314, 322-23, 112 S.Ct. 719, 116 L.Ed.2d 823 (1992)). *646The BIA’s regulations require an alien seeking to reopen proceedings to file a motion to reopen no later than 90 days after the date on which the final administrative decision was rendered. See 8 C.F.R. § 1003.2(c)(2). There is no dispute that Cheng’s August 2008 motion was untimely where the agency issued its final order of deportation nearly thirteen years before. However, there is no time limit for filing a motion to reopen “based on changed circumstances arising in the country of nationality or in the country to which deportation has been ordered, if such evidence is material and was not available and could not have been discovered or presented at the previous hearing.” 8 C.F.R. § 1003.2(c)(3)(ii). Here, the BIA properly found that Cheng’s motion did not qualify for such an exception.
Cheng argues that the BIA abused its discretion by failing to consider evidence he submitted that allegedly showed changed country conditions in China regarding that country’s treatment of Catholics. This argument is unavailing. Nothing in the record compels the conclusion that the BIA failed to consider the evidence Cheng submitted. See Xiao Ji Chen v. U.S. Dep’t of Justice, 471 F.3d 315, 338 n. 17 (2d Cir.2006) (presuming the agency has taken into account all of the evidence unless the record “compelling suggests otherwise”). To the contrary, the BIA listed Cheng’s evidence in its decision.
More significantly, regardless of the materiality of that evidence, the BIA reasonably determined that, because Cheng’s motion was predicated on his conversion to Catholicism subsequent to his arrival in the United States, he had alleged only a change in his personal circumstances. It is well-settled that such a change does not suffice to establish an exception to the timeliness requirement under 8 C.F.R. § 1003.2(c)(3)(ii). See Li Yong Zheng v. U.S. Dep’t of Justice, 416 F.3d 129, 130-31 (2d Cir.2005) (finding that a change in personal circumstances does not establish an exception to the filing deadline for motions to reopen); cf. Wei Guang Wang v. BIA, 437 F.3d 270, 273-74 (2d Cir.2006) (“[I]t would be ironic, indeed, if petitioners ... who have remained in the United States illegally following an order of deportation, were permitted to have a second and third bite at the apple simply because they managed to marry and have children while evading authorities. This apparent gaming of the system in an effort to avoid deportation is not tolerated by the existing regulatory scheme.”).
Accordingly, because Cheng is under a final order of removal and did not file a timely motion to reopen or demonstrate materially changed country conditions excusing the untimeliness of his motion, the BIA did not abuse its discretion in denying his motion to reopen. See 8 U.S.C. § 1229a(c)(7)(C)(ii); 8 C.F.R. § 1003.2(c)(3) (ii).
For the foregoing reasons, the petition for review is DENIED. As we have completed our review, any stay of removal that the Court previously granted in this petition is VACATED, and any pending motion for a stay of removal in this petition is DISMISSED as moot. Any pending request for oral argument in this petition is DENIED in accordance with Federal Rule of Appellate Procedure 34(a)(2), and Second Circuit Local Rule 34(b).
|
01-04-2023
|
11-05-2022
|
https://www.courtlistener.com/api/rest/v3/opinions/8473374/
|
SUMMARY ORDER
Edward Mwelwa, a native and citizen of Zambia, seeks review of an October 20, 2008 order of the BIA affirming the January 16, 2007 decision of Immigration Judge (“IJ”) Michael W. Straus denying Mwel-wa’s application for asylum and withholding of removal, and granting his request for relief under the Convention Against *648Torture (“CAT”). In re Edward Mwelwa, No. A097 753 250 (BIA Oct. 20, 2008), aff'g No. A097 753 250 (Immig. Ct. Hartford, CT Jan. 16, 2007). We assume the parties’ familiarity with the underlying facts and procedural history of the case.
When the BIA issues an opinion that fully adopts the IJ’s decision, this Court reviews the IJ’s decision. See Chun Gao v. Gonzales, 424 F.3d 122, 124 (2d Cir.2005). We review the agency’s factual findings under the substantial evidence standard. 8 U.S.C. § 1252(b)(4)(B); see also Manzur v. U.S. Dep’t of Homeland Sec., 494 F.3d 281, 289 (2d Cir.2007). Questions of law and the application of law to undisputed fact are reviewed de novo. See Salimatou Bah v. Mukasey, 529 F.3d 99, 110 (2d Cir.2008).
Substantial evidence supports the agency’s finding that Mwelwa failed to establish that the harm he endured was on account of a protected ground. See 8 U.S.C. § 1101(a)(42). In order for an applicant to demonstrate that he was persecuted on account of his political opinion, he must show that the persecution arises from his own political opinion, not from some “generalized political motive.” Yueqing Zhang v. Gonzales, 426 F.3d 540, 545 (2d Cir.2005). During Mwelwa’s first hearing, the IJ found that “there was no evidence that [his] alleged imprisonment was politically motivated.” Although Mwelwa testified that he was tortured and interrogated about missing funds from the ministry of finance where he worked, the agency reasonably found that he failed to provide sufficient evidence that he was targeted on account of his political opinion. See Yueqing Zhang, 426 F.3d at 545.
Mwelwa argues that he was targeted because he “had specialized knowledge regarding the Movement for Multi-Party Democracy (“MMD”) and because “[h]e expressed his political opinions as a member of the Forum for Democracy and Development (“FDD”) and used his specialized knowledge to combat the corruption in the MMD.” However, the IJ noted that Mwelwa testified that the paramilitary never asked him any questions about the FDD. Mwelwa testified that he was only asked questions about the two billion kwat-cha (Zambian currency) that was diverted from the National Assembly to the campaign of former President Chiluba. The IJ’s reference to this political corruption did not undermine his finding of insufficient evidence that Mwelwa was persecuted on account of his political opinion. See Vumi v. Gonzales, 502 F.3d 150, 159 (2d Cir.2007)
Mwelwa also argues that the IJ erred in failing “to reverse his prior decision and [ ] proceed consistent with the [BIA’s] opinion” on remand. However, the BIA’s order did not reverse the IJ’s decision, but rather remanded for the IJ to consider new evidence. Accordingly, Mwelwa’s argument in this regard is without merit.
Because substantial evidence supports the agency’s conclusion that Mwelwa failed to demonstrate the requisite nexus to a protected ground, he is necessarily unable to succeed on his claims for asylum and withholding of removal. See 8 C.F.R. § 1208.16(b)(1)(i)(A); Paul v. Gonzales, 444 F.3d 148, 156 (2d Cir.2006).
For the foregoing reasons, the petition for review is DENIED. As we have completed our review, any stay of removal that the Court previously granted in this petition is VACATED, and any pending motion for a stay of removal in this petition is DISMISSED as moot. Any pending request for oral argument in this petition is DENIED in accordance with Federal Rule *649of Appellate Procedure 34(a)(2), and Second Circuit Local Rule 34(b).
|
01-04-2023
|
11-05-2022
|
https://www.courtlistener.com/api/rest/v3/opinions/8473376/
|
AMENDED SUMMARY ORDER
Plaintiffs appeal from the dismissal of their complaint on the ground of forum non conveniens. We assume the parties’ familiarity with the facts and procedural history, which we reference only as necessary to explain our decision.
Toward that end, we note that defendant ImageSat is in the business of commercializing Israeli military earth observation satellite technology. Its two largest shareholders are Israeli, one of which, IAI, is wholly owned by the Israeli government. The core of plaintiffs’ complaint is that ImageSat pursued the interests of the two defendant shareholders, and subordinated the company’s interests to those of the Israeli government, to the detriment of the plaintiff investors. Plaintiffs do not challenge the district court’s conclusion that there is a “strong nexus between plaintiffs’ claims and Israel.”
Forum non conveniens analysis follows the three-step inquiry set forth in Iragorri v. United Techs. Corp., 274 F.3d 65, 73-74 (2d Cir.2001) (en banc). “At step one, a court determines the degree of deference properly accorded the plaintiffs choice of forum. At step two, it considers whether *651the alternative forum proposed by the defendants is adequate to adjudicate the parties’ dispute. Finally, at step three, a court must balance the private and public interests implicated in the choice of forum.” Norex Petroleum Ltd. v. Access Indus., Inc., 416 F.3d 146, 153 (2d Cir.2005) (citing Iragorri v. United Techs. Corp., 274 F.3d at 73-74) (internal citations omitted). We review the district court’s application of these factors deferentially for abuse of discretion, id., and we conclude that the district court acted within its discretion in this ease.
1. Step One of the Iragorri Three-Step Inquiry
At the first step of analysis, and after careful consideration of the range of factors identified as relevant in Iragorri v. United Techs. Corp., 274 F.3d at 72, the district court concluded that plaintiffs’ choice of a New York forum was entitled to “some deference.” Wilson v. ImageSat Int’l N.V., No. 07-cv-6176, 2008 WL 2851511, at *5 (S.D.N.Y. July 22, 2008). Plaintiffs assert that their choice warranted full deference because (1) six of the fifteen plaintiffs are United States citizens or residents, (2) defendants are probably amenable to suit in the Southern District, (3) defendants have access to legal counsel in the forum, and (4) certain agreements between the parties identify New York as the appropriate forum for disputes arising thereunder. We are not persuaded.
The district court appropriately considered each plaintiffs connection to the New York forum, reducing the overall deference accorded on the ground that less than half of the plaintiffs are United States residents. See Norex Petroleum Ltd. v. Access Indus., Inc., 416 F.3d at 154 (recognizing that degree of deference accorded plaintiffs choice of forum moves on a “sliding scale” correlated with “degree of convenience” choice reflects). The district court assumed that defendants are probably amenable to suit and have legal counsel in the New York forum. Nevertheless, it found that “the most pertinent documentary and testimonial evidence exists in Israel,” Wilson v. ImageSat Int’l N.V., 2008 WL 2851511, at *4, a determination not challenged by plaintiifs. Further, the district court determined that plaintiffs had sought a favorable forum by filing suit in the Southern District because the forum would (1) permit them to sue for treble damages under RICO, which would heighten the pressure on defendants to settle; (2) be less convenient and more expensive for defendants; and (3) be less favorable to defendants than Israel. Id. at *5.
Plaintiffs do not challenge these findings individually. Instead, they fault the district court for overlooking provisions in certain agreements between the parties identifying New York as the appropriate forum and waiving defendants’ ability to raise a forum non conveniens objection. Specifically, plaintiffs assert that the district court failed to acknowledge their claim arising from defendants’ failure to appoint independent members to Image-Sat’s board in violation of the 2000 Securi-tyholders Agreement, which contains a New York choice-of-law provision. This is incorrect. Although plaintiffs’ complaint identifies defendants’ apparent duty to appoint independent directors, see Compl. ¶ 190, the alleged breach of this duty does not form the basis of any of plaintiffs’ twenty-two claims or account for any portion of the more than $5 billion in demanded damages.
Because we discern no error in the district court’s conclusion that the identified choice-of-law provisions are inapplicable, we agree that those provisions should have no effect on the court’s forum non conve-niens analysis. Taking all the pertinent step-one factors together, we identify no abuse of discretion in the district court’s *652determination that plaintiffs’ choice of forum should be accorded “some” rather than “full” deference.
2. Step Three
Because plaintiffs do not challenge the district court’s step-two determination that Israel is an adequate alternative forum, we consider its step-three balancing of the private interest factors and the public interest factors “to ascertain whether the case should be adjudicated in the plaintiffs chosen forum or in the alternative forum proposed by the defendant.” Iragorri v. United Techs. Corp., 274 F.3d at 73-74 (describing private and public interest factors).
A. Private Interests
Plaintiffs challenge the district court’s determination that the private interests strongly favor dismissal, arguing that (1) witnesses and documents are available in their chosen forum, (2) unavailable witnesses can provide testimony by letters rogatory, (3) neither treble damages under RICO nor punitive damages are available in Israel, (4) plaintiffs “might” have to pay a filing fee of 2.5% in Israel, (5) plaintiffs’ counsel in New York is already familiar with the case, and (6) defendants are better able to bear the cost of litigating in the Southern District because their litigation expenses are borne by insurance or indemnified by their company. We are not convinced.
Plaintiffs do not challenge as clearly erroneous the district court’s conclusion that “the most pertinent documentary and testimonial evidence exists in Israel.” Wilson v. ImageSat Int’l N.V., No. 07-cv-6176, 2008 WL 2851511, at *4. In light of that finding, the fact that other, less pertinent witnesses and documents are located in New York, or that the “most pertinent” witnesses could submit testimony by letters rogatory, is no basis for concluding that the district court abused its discretion. As to plaintiffs’ other arguments, even assuming arguendo their relevance, they are not so weighty as to manifest that the district court abused its discretion in concluding that the totality of the private interests favor dismissal.
B. Public Interests
Although plaintiffs raise a host of challenges to the district court’s assessment of the public interests implicated by plaintiffs claims, none undermines the district court’s conclusion that Israel has a far stronger interest in this litigation than does plaintiffs’ chosen forum. The district court acted within its discretion in determining that, among other factors, the relationship between defendants and the Israeli government and plaintiffs’ allegations concerning the Israeli military and Israeli foreign policy counsel in favor of a forum non conveniens dismissal. This conclusion is reinforced by the letter submitted by Israel’s Ministry of Defense, which explains that the complaint raises claims related to Israel’s national security and other governmental interests.1
We have considered all of the plaintiffs’ remaining arguments and conclude that *653they lack merit. Accordingly, the district court’s July 25, 2008 order is AFFIRMED.
. After defendants submitted this letter to the district court with their reply brief, the court allowed plaintiffs an opportunity to file a sur-reply. The district court ultimately declined to rely on the letter, however, noting that defendants' motion to dismiss would be granted in any event. See Wilson v. ImageSat Int'l N.V., 2008 WL 2851511, at *7 n. 10. Nevertheless, because the parlies fully briefed the effect of the letter on defendants’ motion to dismiss, we may consider it. See Booking v. Gen. Star Mgmt. Co., 254 F.3d 414, 418-19 (2d Cir.2001) ("[W]e have discretion to consider issues that were raised, briefed, and argued in the District Court, but that were not reached there.”).
|
01-04-2023
|
11-05-2022
|
https://www.courtlistener.com/api/rest/v3/opinions/8473408/
|
OPINION
PER CURIAM.
On March 4, 2009, Appellant, Bernard Thompson, commenced an action in the United States District Court for the Eastern District of Pennsylvania against Marc Altshuler, M.D. and Thomas Jefferson University Hospital. In the complaint, Thompson alleged that Dr. Altshuler, his primary care physician, negligently over-medicated him with the drug Lipitor. By order entered on March 24, 2009, the District Court dismissed Thompson’s complaint without prejudice for lack of subject matter jurisdiction. See Fed.R.Civ.P. 12(h)(3). This appeal followed.1
The District Court correctly concluded that it lacked subject matter jurisdiction over Thompson’s complaint, as Thomas did not allege a violation of the Constitution or federal law under 28 U.S.C. § 1331, nor did he allege any facts that would provide a basis for diversity of citizenship among the parties under 28 U.S.C. § 1332. Rather, as the District Court noted, Thompson, a Philadelphia resident, sought to bring a medical malpractice claim against a physician practicing in a Philadelphia hospital.
Accordingly, we will summarily affirm the District Court’s order.2 See Third Cir. LAR 27.4 and I.O.P. 10.6.
. We have jurisdiction over this appeal pursuant to 28 U.S.C. § 1291.
. We will deny Thompson’s motion for a protection from abuse order.
|
01-04-2023
|
11-05-2022
|
https://www.courtlistener.com/api/rest/v3/opinions/8473415/
|
OPINION
PER CURIAM.
Appellant Gary Ramsey, a federal prisoner proceeding pro se, appeals from the decision of the District Court denying in part his “Motion for Order Corrections to Presentence Report.” Ramsey was convicted in 2001 of numerous charges stemming from two armed bank robberies he orchestrated in 2000. His sentence was enhanced because of his career-offender status and aggravating factors related to the robberies. As a result, he received a sentence of 900 months’ imprisonment. Ramsey filed a direct appeal challenging his sentence under Apprendi v. New Jersey, 530 U.S. 466, 120 S.Ct. 2348, 147 L.Ed.2d 435 (2000), and we affirmed. United States v. Ramsey, 80 Fed.Appx. 168 (3d Cir.2003).
In 2004, Ramsey filed a motion under 28 U.S.C. § 2255, in which he raised 20 claims for relief. Among these, he argued that he should be resentenced because: 1) a state court vacated a conviction that served as a predicate to the career offender enhancement applied at sentencing; and 2) his sentence violated the constitutional rule of criminal procedure established in United States v. Booker, 543 U.S. 220, 125 S.Ct. 738, 160 L.Ed.2d 621 (2005), *693and that he should be able to present an argument based on that case on habeas review because he raised a similar claim based on Apprendi on direct appeal. The District Court denied relief, and we declined to issue a certificate of appealability. United States v. Ramsey, No. 06-1671 (order entered September 6, 2006).
Recently, Ramsey filed a motion in the District Court raising the two resentencing claims from his § 2255 motion and requesting that his pre-sentence investigation report be revised to reflect the change in his criminal history and its effect on his potential range under the Sentencing Guidelines. The District Court granted his request to revise the pre-sentence report, but denied the other claims as previously litigated and/or frivolous. Ramsey filed a timely appeal. The Clerk listed the case for possible summary action, and Ramsey then filed a motion for summary reversal, in which he rehashes his resen-tencing arguments and attacks the District Court’s decisions regarding his § 2255 case and the motion underlying this appeal.
We have jurisdiction pursuant to 28 U.S.C. § 1291. In denying Ramsey’s re-sentencing claims, the District Court reasoned that those claims were previously litigated and/or legally frivolous. Though we agree that those claims were already litigated, we note that the District Court actually lacked authority to entertain them at all. An attempt to advance claims that attack the validity of an underlying conviction following the denial of a § 2255 motion should be treated as a second or successive § 2255 motion. See Gonzalez v. Crosby, 545 U.S. 524, 530-31, 125 S.Ct. 2641, 162 L.Ed.2d 480 (2005); Pridgen v. Shannon, 380 F.3d 721, 727 (3d Cir.2004). Absent authorization from the Court of Appeals, the District Court lacks the authority to adjudicate a second or successive § 2255 motion. See Pridgen, 380 F.3d at 725 (citing § 2244(b)). Here, Ramsey’s motion clearly raised claims — already presented in his § 2255 motion — that attacked the validity of his sentence. Thus, the District Court properly declined to entertain what amounted to an unauthorized second § 2255 motion.
We may take summary action when an appeal presents no substantial question. See 3d Cir. LAR 27.4; 3d Cir. IOP 10.6. For the reasons given, Ramsey’s attempt to re-advance his sentencing claims was clearly meritless, as he did not have permission to proceed with a second or successive § 2255 motion.1
Accordingly, we will summarily affirm the judgment of the District Court. Ramsey’s own motion for summary reversal is denied.
. Even if Ramsey satisfied the requirements for filing a second § 2255 motion, which he clearly does not, see 28 U.S.C. § 2244(b)(2), his claims likely could not receive consideration because they have already been raised and rejected in § 2255 proceedings. See § 2244(b)(1) ("A claim presented in a second or successive habeas corpus application under section 2254 that was presented in a prior application shall be dismissed.”); United States v. Bendolph, 409 F.3d 155, 163 (3d Cir.2005) (holding that motions under § 2255 and § 2254 should be treated “the same absent sound reason to do otherwise”).
|
01-04-2023
|
11-05-2022
|
https://www.courtlistener.com/api/rest/v3/opinions/8473417/
|
OPINION
PER CURIAM.
Carl Anthony Knight appeals from an order of the United States District Court for the Western District of Pennsylvania, which denied his motion for reduction of sentence, filed pursuant to 18 U.S.C. § 3582(c)(2). Because no substantial question is presented by the appeal, we will grant Appellee’s motion for summary action, and will affirm the District Court’s judgment.
Knight’s motions and supplements in the District Court argued that his sentence should be reduced due to Amendment 706 to the United States Sentencing Guidelines (“U.S.S.G.” or “Guidelines”), which concerns sentencing for convictions involving crack cocaine. He also argued that on resentencing, the District Court should consider the Guidelines to be advisory, pursuant to United States v. Booker, 543 U.S. 220, 125 S.Ct. 738, 160 L.Ed.2d 621 (2005). The District Court determined that it lacked jurisdiction to reduce Knight’s sentence, as Amendment 706 would not lower Knight’s sentencing range. The District Court also rejected Knight’s argument that on resentencing it would have discretion to impose a sentence that varied from the Guidelines range, and noted that even if it had such discretion, it would not exercise it to reduce Knight’s sentence.
The District Court properly found that it lacked jurisdiction to reduce Knight’s *695sentence. Normally, a court may not modify a term of imprisonment once it is imposed. However, 18 U.S.C. § 3582(c)(2) creates a limited exception, noting that a court may reduce a term of imprisonment “in the case of a defendant who has been sentenced to a term of imprisonment based on a sentencing range that has subsequently been lowered by the Sentencing Commission ... after considering the factors set forth in section 3553(a) to the extent that they are applicable, if such a reduction is consistent with applicable policy statements issued by the Sentencing Commission.” The District Court properly held, citing U.S.S.G. § 1B1.10(a)(2)(B), that section 3582(c)(2) only applies if an applicable amendment lowers a defendant’s sentencing range. Dist. Ct. Op., dkt. # 211 at 2-3; see also United States v. Mateo, 560 F.3d 152, 154 (3d Cir.2009). As the District Court noted, at the time Knight was sentenced, an offense involving greater than 1.5 kilograms of cocaine base (the highest amount listed in the Drug Quantity Table at the time) would be assigned a base offense level of 38. U.S.S.G. § 2Dl.l(e) (1998). After amendment, an offense involving at least 1.5 kilograms but less than 4.5 kilograms of cocaine base is assigned a base offense level of 36, but an offense involving 4.5 kilograms or more of cocaine base is assigned level 38. U.S.S.G. § 2Dl.l(c) (2008). As Knight’s offense involved over 4.5 kilograms of cocaine base, the base offense level (and the resulting final adjusted offense level) would not change.1
Knight argues that the only drug quantity the District Court should have considered is the 1.8 kilograms of cocaine base, referenced in paragraph 30 of his presen-tence report (PSR), which was the amount seized on the day of his arrest. He notes that the Guidelines calculation portion of the PSR states that the drug quantity was “in excess of 1.5 kilograms of cocaine base,” see PSR ¶ 38, and then appears to conclude that this paragraph must refer only to the 1.8 kilogram amount referenced in paragraph 30. However, the PSR also notes that Knight “was responsible for the distribution of at least three kilograms of cocaine base a month in Erie.” PSR § 41. Indeed, in an appeal after a remand for further consideration based on Apprendi v. New Jersey, 530 U.S. 466, 120 S.Ct. 2348, 147 L.Ed.2d 435 (2000), we stated that “the jury [that convicted Knight] credited testimony from coconspirators including evidence that Knight bought approximately 2 kilograms of cocaine base for between $21,000 to $25,000 per kilogram every ten days” over the course of the conspiracy.2 United States v. Knight, 50 Fed.Appx. 565, 568 (3d Cir.2002). Because Knight’s offense clearly involved over 4.5 kilograms of cocaine base, Amendment 706 did not change his sentencing range. The District Court thus properly held that it lacked jurisdiction to reduce Knight’s sentence.3
*696For the foregoing reasons, we will grant the Government’s motion and summarily affirm the District Court’s judgment.4
. Knight does not appear to dispute the District Court's calculations, see Dist. Ct. Op. at 4, that after adjustments, the final offense level would remain 43. Instead, Knight disputes the District Court's characterization of the drug quantity involved, and argues that the District Court should consider the Guidelines advisory on resentencing.
. The superceding indictment charged a conspiracy taking place between January 1993 and November 14, 1997. PSR II 6.
.As the District Court lacked jurisdiction to consider Knight's motion, his argument regarding the application of Booker is moot. We note, however, that even if the District Court could have considered a reduction of sentence, our decision in United States v. Dillon, 572 F.3d 146 (3d Cir.2009) forecloses Knight’s argument that Booker would apply to render the Guidelines advisory on resentenc-ing. Dillon, 572 F.3d at 149.
. Knight’s motion to supplement the record is denied. We note that the material he submits was not before the District Court, and it is further irrelevant to the question of whether the District Court had jurisdiction to consider Knight’s motion for a reduction of sentence.
|
01-04-2023
|
11-05-2022
|
https://www.courtlistener.com/api/rest/v3/opinions/8473418/
|
OPINION OF THE COURT
SCIRICA, Chief Judge.
Remote Solution Co., Ltd. appeals from the District Court’s denial of its motion to vacate or modify an arbitral award. The underlying dispute involves an agreement between Remote Solution and Contec Corporation.1 The arbitrator determined Remote Solution had agreed to defend and indemnify Contec against certain patent infringement claims brought by third parties and awarded damages to Contec, as well as fees and costs. The District Court denied Remote Solution’s motion to vacate or modify the arbitral award and entered judgment for Contec. We will affirm.
I.
Remote Solution is a Korean electronics manufacturer. In February 1999, it entered into a Manufacturing and Purchase Agreement [“Agreement”] with Contec, a Delaware corporation with its principal place of business in New York. Contec sold remote-control devices to consumers and cable television providers. The agreement governed the production and sale of such devices according to specifications provided to Remote Solution by Contec. Section 3(c) of the Agreement states that Remote Solution would defend certain suits against Contec and indemnify Contec against damages:
Seller shall defend any suit or proceeding brought against Purchaser to the extent that such suit or proceeding is based on a claim that the Products constitute an infringement of any valid United States or foreign patent, copyright, trade secret or other intellectual property right and Seller shall pay all damages and costs awarded by final judgment against Purchaser.
One of the devices Contec purchased under the agreement was the RT-U49C. Contec sent specifications for the device and placed an order in the spring of 2000. About two years later, Universal Electronics, Inc. (“UEI”) sued Contec for patent infringement in the United States District Court for the District of Delaware, claiming the RT-U49C infringed its patents. The parties settled in May 2002. That same year, Philips Electronics North America and U.S. Philips Corporation (collectively “Philips”) sued Contec, also in the United States District Court for the District of Delaware, claiming the RT-U49C infringed its patents.2 In June 2003, Con-tec and another defendant entered into a Consent Judgment and Order stating they infringed two Philips patents. Contec incurred fees and costs in its defense against both patent-infringement claims. In resolution of the claims, it paid a settlement and royalties to both UEI and Philips.
Remote Solution’s failure to defend and indemnify Contec against the UEI and Philips actions prompted Contec to withhold payment from Remote Solution for devices shipped in January 2003. In June *6982003, Remote Solution filed a complaint in Korean court, seeking payment for the devices. In response, Contec demanded arbitration with the American Arbitration Association under Section 19 of the Agreement,3 and subsequently filed a motion in the United States District Court for the Northern District of New York to compel arbitration. The arbitrator determined it had standing to hear the dispute, the New York court entered judgment confirming the arbitrator’s standing,4 and the parties proceeded to arbitrate their dispute.
In arbitration, Remote Solution claimed the indemnification provision did not apply because Contec’s own specifications had caused the patent infringement. The arbitrator, however, concluded Remote Solution had agreed to indemnify Contec in Section 3(c) of the Agreement regardless of whether Contec provided its own specifications. That provision, moreover, displaced N.Y. U.C.C. § 2-312(3), which “[u]nless otherwise agreed,” would require a buyer who furnishes specifications to hold the seller harmless against claims “aris[ing] out of compliance with the specifications.”5 The arbitrator ordered Remote Solution to pay Contec $482,067.50. This figure represents $1,102,105.50, which Remote Solution owes Contec under section IV(G) of the Arbitrator’s damages award, reduced by $620,038, the amount Contec withheld from Remote Solution for devices shipped in January 2003. Of the total amount, $295,833 represents Remote Solution’s share of the Philips and UEI settlement and royalties;6 $270,206.32 is for Contec’s attorneys’ fees and expenses in the Philips and UEI actions; $304,099.57 represents Contec’s fees and costs in the Korean and New York actions, which the arbitrator determined were “clearly incurred in the conduct of this arbitration;” and $231,966.62 is for Remote Solution’s share of Contec’s fees and expenses associated with the arbitration itself.
Remote Solution filed a motion to vacate or modify the arbitral award in the United States District Court for the District of Delaware. The District Court denied the motion, and entered judgment for Contec.7 Remote Solution appeals.8
*699II.
Review of arbitration awards under the Federal Arbitration Act (“FAA”), 9 U.S.C. §§ 1-16, is “extremely deferential.” Metromedia Energy, Inc. v. Enserch Energy Servs., Inc., 409 F.3d 574, 578 (3d Cir.2005). We may disturb the award only when the arbitrator is “partial or corrupt” or “manifestly disregards, rather than merely erroneously interprets the law.” Id.9 Additionally, we may refuse to enforce an award that violates law or a “well-defined and dominant” public policy. Exxon Shipping Co. v. Exxon Seamen’s Union, 993 F.2d 357, 360 (3d Cir.1993). “[A] court’s refusal to enforce an arbitrator’s interpretation of [a] contradi ] is limited to situations where the contract as interpreted would violate ‘some explicit public policy that is ‘well defined and dominant, and is to be ascertained by reference to the laws and legal precedents and not from general considerations of supposed public interests.’ ” United Paperworkers Int'l Union v. Misco, Inc., 484 U.S. 29, 43, 108 S.Ct. 364, 98 L.Ed.2d 286 (1987) (quoting W.R. Grace & Co. v. Rubber Workers, 461 U.S. 757, 766, 103 S.Ct. 2177, 76 L.Ed.2d 298 (1983) (internal quotation marks omitted)).
Remote Solution challenges the arbitrator’s determination that it had agreed to defend and indemnify Contec against patent claims like the UEI and Philips claims. Remote Solution contends the award violates public policy because the arbitrator’s interpretation of the contract did not comport with proper principles of contract interpretation.10 (Br. of Appellant at 16) (citing Sweeney v. Hertz Corp., 292 A.D.2d 286, 740 N.Y.S.2d 19, 21 (N.Y.A.D. 1st Dep’t 2002) (requiring an indemnity provision in a car-rental contract to “clearly and unequivocally express an intent to indemnify [the rental company] against its own negligence”)). This argument suggests the arbitrator misconstrued the contract,11 not that the contract “as interpreted,” see Misco, 484 U.S. at 43, 108 S.Ct. 364, would violate a well-defined and dominant public policy. Remote Solution’s argument is that the arbitrator committed legal error, but this is not a sufficient basis to determine the award violates public policy.
Remote Solution additionally contends the arbitrator manifestly disregarded the law twice in its award of attorneys’ fees. First, it contends the arbitrator should have limited the award of attorneys’ fees and costs to the fees and costs it expended. Section 19 of the Agreement entitles the prevailing party “in any [arbitration] ... to recover from the other party all of its expenses, including, without limitation ... its attorneys fees incurred in the conduct *700of such arbitration but in no event will the recovery of its attorney’s fees be in excess of the actual cost of the other party’s attorney’s fees.” In the arbitration, Con-tec reported $231,966.62 of fees, compared to only $13,581.11 of fees for Remote Solution.12
The arbitrator acknowledged the contractual limitation on fees, but explained “it is equally plain ... that Remote Solution has breached its obligation of good faith and fair dealing.... ” Remote Solution’s fees were “unreasonably” and “inexplicably” low,13 the arbitrator determined, and the “unusually low billings here cannot provide a basis for negating the spirit of section 19” because Remote Solution had “arrang[ed] for the losing party’s attorney’s fees and expenses to approach zero.”14 The arbitrator considered the contractual limitation as well as the good faith and fair dealing claims. By “construing or applying the contract and acting within the scope of his authority,” Misco, 484 U.S. at 38, 108 S.Ct. 364, the arbitrator did not manifestly disregard the law.
Remote Solution’s second argument is likewise unavailing. It contends under New York law that the provision in Section 19 does not allow for recovery of pre-arbitration attorneys’ fees and costs because it does not “unmistakably” address these costs. But the arbitrator considered the language of the contract and determined these fees and costs were “incurred in the conduct of [the] arbitration.” Its determination was not in manifest disregard of the law.15
For the foregoing reasons we will affirm the judgment of the District Court and remand for a determination of pre-judgment interest.16
. Prior to this dispute, Remote Solution Co., Ltd. was Hango Electronics Co., Ltd. During the dispute, Contec changed its corporate name to FGH Liquidating Corp. Throughout this opinion, we refer to the parties and their predecessor and successor corporations as Remote Solution and Contec, respectively.
. Philips also named Compo Micro Tech, Inc. and Seoby Electronics, two other Contec suppliers, along with Remote Solution as defendants in the suit.
. Section 19 of the Agreement states: "In the event of any controversy arising with respect to this Agreement ... such controversy shall be determined by arbitration ... in accordance with the Commercial Arbitration Rules of the American Arbitration Association....”
. Contec Corp. v. Remote Solution Co., No. 1:03-CV-910, 2003 WL 25719933 (N.D.N.Y. Dec. 2, 2003), aff'd, 398 F.3d 205 (2d Cir.2005).
. The parties agree the contract is governed by New York law.
. Remote Solution was only one of multiple companies that supplied devices to Contec. The $295,833 award to Contec represents Remote Solution’s pro-rata share of the patent-infringement settlements and royalties.
. The District Court also ordered Remote Solution to remit to Contec 75% of its administrative costs and fees incurred in arbitration, and 25% of the arbitrator's fee under section IV(I) of the Arbitrator's damages award. We assume the District Court mistakenly ordered 25% of the arbitrator's fee to be remitted to Contec, as opposed to the 75% stated in the aforementioned section of the Arbitration damages award. We correct this typographical error; accordingly, Remote Solution shall remit to Contec 75% of its administrative costs and fees and 75% of the arbitrator’s fee.
. The District Court had jurisdiction under 28 U.S.C. § 1332. Although the case was initially dismissed for failure to meet the amount-in-controversy requirement, Remote Solution filed a renewed motion to vacate or modify the award. The renewed motion asserted claims involving the arbitral award that were not certainly less than the amount-in-controversy threshold. See St. Paul Mercury Indem. Co. v. Red Cab Co., 303 U.S. 283, 289, 58 S.Ct. 586, 82 L.Ed. 845 (1938) ("It must appear to a legal certainty that the claim is really for less than the jurisdictional amount to justify dismissal.”); Columbia Gas Transmission *699Corp. v. Tarbuck, 62 F.3d 538, 541 (3d Cir.1995). We have jurisdiction to review the appeal from a final judgment under 28 U.S.C. § 1291.
. “[A]s long as the arbitrator is even arguably construing or applying the contract and acting within the scope of his authority, that a court is convinced he committed serious error does not suffice to overturn his decision.” United Paperworkers Int’l Union v. Misco, Inc., 484 U.S. 29, 38, 108 S.Ct. 364, 98 L.Ed.2d 286 (1987). The typical result, which is “to affirm easily the arbitration award,” is consistent with the purpose behind the FAA. Dluhos v. Strasberg, 321 F.3d 365, 370 (3d Cir.2003).
. The District Court concluded the arbitrator's decision did not “constitute a ‘manifest disregard for the law.' " Remote Solution Co. v. FGH Liquidating Corp., 568 F.Supp.2d 534, 542-43 (D.Del.2008). On appeal, Remote Solution only challenges the interpretation of the contract on public policy grounds.
. We do not address whether this contention is correct, but note that the District Court determined the arbitrator had not manifestly disregarded the law because the cases Remote Solution relies upon do not clearly govern patent-infringement indemnification clauses in New York.
. Remote Solution also contends the limitation on fees applies to the New York action. In that action, it incurred $54,273.75 of costs, and Contec spent $288,779.30.
. Contec had cited to more than thirty instances where Remote Solution’s counsel did not bill for its time.
. As noted, the arbitrator awarded $231,966.62 for fees incurred in arbitration, even though Remote Solution claims to have incurred only $13,581.11. And the arbitrator awarded Contec an additional $288,779.30 for its fees in the New York action, although Remote Solution claims it only incurred $54,273.75 in that action.
. Contec has also filed a motion for damages under Federal Rule of Appellate Procedure 38. We will deny this motion. "If a court of appeals determines that an appeal is frivolous, it may ... award just damages and single or double costs to the appellee.” Fed. R.App. P. 38. Damages under Rule 38 are within the discretion of the court and awarded as justice requires. Beam v. Bauer, 383 F.3d 106, 109 (3d Cir.2004); Hilmon Co. (V.I.) Inc. v. Hyatt Int’l, 899 F.2d 250, 253 (3d Cir.1990). "[Ajttorneys have an affirmative obligation to research the law and to determine if a claim on appeal [has merit]”. Beam, 383 F.3d at 109 (internal citations omitted). The test is whether a reasonable attorney would conclude that the appeal is frivolous. Id.
Remote Solution's appeal to this Court, although unsuccessful, contains colorable claims. The arbitrator did not manifestly disregard the law, but some interpretative issues in the contract might have been reasonably construed in more than one way. While the arbitrator's decision receives great deference, Remote Solution's appeal is not so lacking in merit as to warrant a damages award under Rule 38.
.Contec has renewed its request for prejudgment interest beginning on January 25, 2006, which is the date the arbitrator ordered payment of the damages award. The District Court did not address this issue.
|
01-04-2023
|
11-05-2022
|
https://www.courtlistener.com/api/rest/v3/opinions/8473420/
|
OPINION OF THE COURT
PER CURIAM.
Wing Hong Kwong, proceeding pro se, petitions for review of an order of the Board of Immigration Appeals (“BIA”) vacating the Immigration Judge’s (“IJ”) decision deferring his removal under the Convention Against Torture (“CAT”). We will deny the petition for review.
Kwong is a native of Hong Kong and a citizen of China. He came to the United States in 1968 as a visitor and became a lawful permanent resident in 1970. In 1988, Kwong pleaded guilty in federal court to conspiracy to possess and export munitions without the requisite license and possession of unregistered firearms. Before sentencing, Kwong was indicted, tried, and convicted in 1992 of attempting to murder an Assistant United States Attorney. The latter conviction was reversed on appeal due to an erroneous jury instruction. United States v. Kwong, 14 F.3d 189, 195-96 (2d Cir.1994). On retrial, Kwong was convicted again. United States v. Kwong, 69 F.3d 663 (2d Cir.1995). Kwong received an aggregate sentence of 262 months in prison.
*702In 2006, the Immigration and Naturalization Service issued a notice to appear charging that Kwong was subject to removal because he was convicted of a crime of violence, which constitutes an aggravated felony under the immigration statute, and because he was convicted of a firearms offense. Kwong sought relief from removal under the CAT.1
In support of his CAT claim, Kwong testified that he worked for the Drug Enforcement Agency (“DEA”) from July 1988 to May 1989 as an undercover informant. Kwong explained that he went into Chinese communities, made contacts with criminal elements, particularly those involved in drug trafficking and organized crime, and reported back to the DEA. He stated that his work culminated in the prosecution of four major cases. Kwong further testified that he did similar work for the Federal Bureau of Investigation (“FBI”) from June 1989 to August 1991, and that his work resulted in several arrests.
Kwong stated that he feared that he would be tortured in China because individuals who were convicted as a result of his work have been deported to China and these individuals have extensive criminal roots there. Kwong testified that the FBI arrested a Chinese drug kingpin named Johnny Kong, whose associate attacked Kwong in prison in 1993 and told Kwong that he would wait for him in Hong Kong and kill him there. Kwong also testified that he has received other threats. He stated that in 1991, while working for the FBI, someone shot at his car.2 Kwong stated that an FBI agent recommended his placement in the federal witness protection program, but he was arrested before he could enter the program.
Kwong further testified that he believes that the Chinese government will protect him only if he agrees to work against American agencies. Kwong believes that he will be detained if he returns to China, and that he will be tortured if he refuses to cooperate with government officials. Kwong stated that Chinese officials will not care about his criminal record, but that they will be interested in the information that he can give them. Kwong believes that the Chinese government will know that he worked for United States law enforcement agencies due to the notoriety of his criminal case.
The IJ noted that there was no direct evidence of Kwong having provided intelligence or information to the FBI or DEA and stated that he was not willing to accept Kwong’s testimony on its face that he was as crucial to the government as he testified. The IJ also questioned whether Chinese officials would be aware that Kwong helped the government in 1991, and stated that Kwong’s alleged notoriety based on his criminal conviction cut against his claim that foreign governments would think that he cooperated with the United States government.
The IJ, however, recognized the widespread use of torture by China against detainees and prisoners reflected in the background evidence, and noted that it is rare to find direct evidence that an alien would likely be tortured in a proposed country of removal. The IJ stated that he *703would assume, and that he believed, that Kwong would be detained upon his arrival given that he has lived here for 40 years and has a serious criminal conviction, and given China’s propensity to engage in intrusions on the lives of its citizens and high incidence of torture. The IJ was not convinced that Chinese officials would know of Kwong’s cooperation with the United States government unless Kwong tells them, but he believed that, in light of the background evidence of torture, Kwong could be subjected to pain or suffering upon being interrogated. The IJ thus deferred Kwong’s removal.
The BIA sustained the Government’s appeal. The BIA agreed that the record reflected that torture remained widespread in Chinese detention facilities, but stated that fact only becomes relevant if Kwong established that it was likely that he would be detained. The BIA stated that the only evidence that China may detain criminal returnees was Kwong’s testimony that he had a friend who was released from prison and returned to China, that the Chinese government detained him, and that Kwong never heard from him again. The BIA found this evidence insufficient, noting that the basis for Kwong’s assertion that the friend was detained was unclear, and that Kwong gave no details about the friend’s circumstances to indicate whether the friend was similarly situated to him.
The BIA further stated that nothing in the record supported Kwong’s statement that the Chinese government would find out that he worked for the FBI, indicated that China is likely to detain returnees who lived in the United States for a long time, or showed that China has detained or is likely to detain criminal returnees. The BIA concluded that the IJ’s finding that Kwong is likely to be detained was clearly erroneous. The BIA further concluded that, even if Kwong had shown that he is likely to be detained, he had not shown that Chinese authorities would have a specific intent to torture him. The BIA decided that Kwong failed to meet his burden of proving that it is more likely than not that the Chinese government will torture him. The BIA also decided that Kwong did not meet his burden of proof on his CAT claim based on harm by organized crime figures in China. This petition for review followed.
We have jurisdiction pursuant to 8 U.S.C. § 1252(a)(1). Because the basis for Kwong’s removal is his conviction for an aggravated felony, our jurisdiction is limited under the Real ID Act to constitutional claims and questions of law. See 8 U.S.C. § 1252(a)(2)(C) — (D); Pierre v. Attorney General, 528 F.3d 180, 184 (3d Cir.2008).
Kwong has not presented any constitutional claims or questions of law in his brief for our review. Rather, Kwong challenges the BIA’s assessment of the evidence and seeks to bolster his claim with materials and information that are not part of the administrative record. These arguments are not properly before us. Even if we had jurisdiction to consider the evidence supporting Kwong’s CAT claim, our review is limited to the evidence contained in the administrative record. 8 U.S.C. § 1252(b)(4)(A); Berishaj v. Ashcroft, 378 F.3d 314, 330 (3d Cir.2004).3
Accordingly, we will deny the petition for review. Kwong’s motion to file his *704brief under seal and motions to supplement the record are denied.
. The IJ initially terminated the proceedings without prejudice because Kwong's earliest release date was not until mid-May 2010, and the IJ concluded that his CAT claim was not ripe. The BIA sustained the Government’s appeal, finding that the Government was prejudiced by the termination.
. Although Kwong testified that the shooting was in 2001, he clarified on cross-examination that he worked for the FBI until 1991. It appears that the shooting was in 1991. Similarly, Kwong initially testified that the prison attack occurred in 2003, but he clarified on cross-examination that the attack was in fact in 1993.
. Kwong does assert that the BIA "incorrectly used the standard set forth in 8 C.F.R. § 1208.18(a)(1) to makes its assessment on whether [he] would be tortured with the acquiescence of the Chinese authorities” and appears to assert that the BIA applied a higher burden of proof than Congress intended. See Pet’r’s Br. at 12. Kwong has not developed arguments on these points or shown that the BIA erred.
|
01-04-2023
|
11-05-2022
|
https://www.courtlistener.com/api/rest/v3/opinions/8473423/
|
OPINION OF THE COURT
NYGAARD, Circuit Judge.
Because our opinion is wholly without precedential value, and because the parties and the District Court are familiar with its operative facts, we offer only an abbreviated recitation to explain why we will affirm the judgment of conviction and sentence of the District Court.
Ephraim Barr was convicted by the District Court for his role in a conspiracy to traffic in counterfeit credit cards and to make and possess counterfeit checks. Barr also received a sentence enhancement for being a leader or organizer in the conspiracy. Barr presents four issues challenging evidentiary rulings made by the District Court. He also challenges the sentence enhancement.
First, Barr argues that the District Court incorrectly denied his motion to suppress statements he made during interviews with law enforcement on two occasions after waiving Miranda rights. “This Court reviews the District Court’s denial of a motion to suppress for clear error as to the underlying factual findings and exercises plenary review of the District Court’s application of the law to those facts.” United States v. Perez, 280 F.3d 318, 336 (3d Cir.2002).
With regard to the first interview, Barr alleges that “his invocation of his Fifth Amendment right to remain silent required the police officer to end the interrogation.” Barr was advised of his Miranda rights by law enforcement in both a verbal and written form, and he memorialized his waiver of these rights in writing. He invoked his Fifth Amendment right to silence in response to three of twenty-one questions, but responded to all of the other questions in the one-hour interview. There is no evidence to suggest that Barr made a clear, unequivocal reassertion of his right to silence. The District Court did not clearly err in concluding that Barr “understood all of his rights, did not want to remain silent, did not want to talk with a lawyer before the interview or have a lawyer present for the interview, and was willing to answer questions voluntarily and without coercion.”
With regard to the second interview, Barr claims that testimony offered by an Agent was inadmissible because there is no evidence that Barr made a knowing and voluntary waiver of his Miranda rights. The agent apprised Barr of his Miranda rights, reading from a standard form. After the Miranda rights were read to him, Barr signed on the second page of the form to indicate that he had been advised of and understood his rights. Moreover, after the interview, Barr wrote two letters reiterating his desire to cooperate with authorities. We cannot find any evidence on this record that Barr’s waiver was either involuntary or shrouded in an ignorance of his right. We do not find any error in the District Court’s assessment that testimony of the Agent regarding that interview was admissible.
Barr’s third argument on appeal focuses upon the admissibility of both in-court and out-of-court identifications of Barr made by a witness. Barr challenges the reliability of this identification based on the fact that the photo array was unduly suggestive. We agree with the District Court’s conclusion that, given the amount of time that the witness had to observe Barr during the commission of the crime, *706and the temporal proximity of that experience to her first look at photos, sufficient indicia of a reliable identification were present to satisfy any Due Process concerns about the admissibility of this evidence.
Fourth, Barr asserts that probable cause did not exist to support a search warrant for his residence. The District Court concluded that the search warrant was properly based upon the police officers’ lawful plain view observations into the house and around the trailer parked on his property. We agree.
Finally, with regard to Barr’s objections to his organizer/leader sentence enhancement we note that he does not challenge the District Court’s finding that there were six culpable participants involved. Barr was found to be in the business that used the sort of merchandise obtained in this fraud, and these items were found at his residence. Additionally, he was found to exercise control over the means of conducting the fraud. We conclude that the District Court did not err in applying the enhancement to Barr’s sentence.
For these reasons, we will affirm the District Court’s judgment of conviction and sentence.
|
01-04-2023
|
11-05-2022
|
https://www.courtlistener.com/api/rest/v3/opinions/8473425/
|
OPINION OF THE COURT
PER CURIAM.
Petitioner Phik Ha Lie, a native and citizen of Indonesia, entered the United States on May 27, 2000 on a visitor’s visa, and overstayed. She was served with a Notice to Appear for removal proceedings, alleging that she was removable under Immigration and Nationality Act (“INA”) § 237(a)(1)(B), 8 U.S.C. § 1227(a)(1)(B), as an alien present in the United States in violation of the law. She filed an application for asylum under INA § 208(a), 8 U.S.C. § 1158(a), withholding of removal under INA § 241(b)(3), 8 U.S.C. § 1231(b)(3), and protection under the Convention Against Torture, 8 C.F.R. §§ 1208.16(c), 1208.18, claiming persecution on the basis of her Chinese ethnicity and Christian religion.1 On March 1, 2004, an Immigration Judge denied Lie’s claim for relief and protection, and, on June 23, 2006, the Board of Immigration Appeals affirmed the finding that the incidents Lie experienced in Indonesia did not rise to the level of persecution. The Board also agreed that Lie had not established a well founded fear of future persecution. Lie filed a petition for review, and, on October 9, 2007, we denied it. See Lie v. Mukasey, 250 Fed.Appx. 496 (3d Cir.2007).
On November 13, 2007, Lie and her husband filed an untimely motion to reopen removal proceedings with the Board, contending that their daughter’s recent grant of asylum (on March 28, 2007) was a changed personal circumstance which merited reopening proceedings under INA § 208(a)(2)(D), 8 U.S.C. § 1158(a)(2)(D). *708Lie argued that she need not file a motion to reopen in order to submit a successive asylum application. The Department of Homeland Security opposed the motion.
On February 5, 2008, the Board denied the untimely motion to reopen, holding that the couple’s daughter’s asylum grant did not represent changed country conditions so as to create an exception to the 90-day time limit for filing a motion to reopen, see 8 C.F.R. § 1003.2(c)(3)(ii); Matter of C-W-L-, 24 I. & N. Dec. 346 (BIA 2007). The Board also declined to reopen removal proceedings through its sua sponte authority, noting that the daughter’s asylum grant was not an “exceptional situation” warranting such action, see Matter of J-J-, 21 I. & N. Dec. 976 (BIA 1997). Phik Ha Lie has timely petitioned for review of this decision.
We will deny the petition for review. We have jurisdiction under INA § 242(a), 8 U.S.C. § 1252(a). The Board’s jurisdiction arose under 8 C.F.R. § 1003.2(c), which grants it authority to adjudicate motions regarding matters it has previously considered. We review the Board’s denial of a motion to reopen for abuse of discretion. Immigration & Naturalization Serv. v. Abudu, 485 U.S. 94, 105, 108 S.Ct. 904, 99 L.Ed.2d 90 (1988). Under this deferential standard of review, we will not disturb the Board’s decision unless it is arbitrary, irrational, or contrary to the law. See Guo v. Ashcroft, 386 F.3d 556, 562 (3d Cir.2004).
The regulation governing motions to reopen provides that: “A motion to reopen proceedings shall state the new facts that will be proven at a hearing to be held if the motion is granted and shall be supported by affidavits or other evidentiary material.... A motion to reopen proceedings shall not be granted unless it appears to the Board that evidence sought to be offered is material and was not available and could not have been discovered or presented at the former hearing....” 8 C.F.R. § 1003.2(e)(1). Although a motion to reopen “must be filed no later than 90 days after the date on which the final administrative decision was rendered in the proceeding sought to be reopened,” 8 C.F.R. § 1003.2(c)(2), this time limitation does not apply if the alien seeks reopening “based on changed circumstances arising in the country of nationality or in the country to which deportation has been ordered, if such evidence is material and was not available and could not have been discovered or presented at the previous hearing.” 8 C.F.R. § 1003.2(c)(3)(ii). See also 8 U.S.C. § 1229a(c)(7)(C)(ii).
Because Lie’s motion was untimely, being more than a year late, her motion had to be based on changed country conditions for Chinese Christians in Indonesia. See 8 U.S.C. § 1229a(c)(7)(C)(ii). Lie did not base her claim on changed country conditions, and, in fact, Lie does not challenge the Board’s finding that she failed to establish changed country conditions in Indonesia. Instead, she contends that she should be able to reopen proceedings, or file a successive asylum application, based on changed personal circumstances, in accordance with due process and the 1951 Refugee Convention and 1967 Refugee Protocol. Furthermore, she contends, the Board’s interpretation of the INA and the implementing regulations in Matter of C-W-L-, 24 I. & N. Dec. 346, is not entitled to Chevron deference, see Chevron U.S.A. Inc. v. Natural Res. Def. Council, Inc., 467 U.S. 837, 104 S.Ct. 2778, 81 L.Ed.2d 694 (1984). Lie contends that INA § 208(a)(2)(D), 8 U.S.C. § 1158(a)(2)(D), standing alone, is a basis for filing an additional asylum application, even though she is currently under an order of removal and barred by INA § 240(c)(7)(C)(ii), 8 U.S.C. § 1229a(c)(7)(C)(ii), from filing such an application, except where accompanied *709by a timely motion to reopen based on changed country conditions.
We reject this argument as unpersuasive. Section 208(a)(2)(D) of the INA states:
An application for asylum of an alien may be considered, notwithstanding subparagraphs (B) and (C), if the alien demonstrates to the satisfaction of the Attorney General either the existence of changed circumstances which materially affect the applicant’s eligibility for asylum or extraordinary circumstances relating to the delay in filing an application within the period specified in subparagraph (B).
8 U.S.C. § 1158(a)(2)(D).2 Regulations implementing INA § 208(a)(2)(D) define “changed circumstances” to include, in pertinent part, not only changes in conditions in the applicant’s country, but also “[cjhanges in the applicant’s circumstances that materially affect the applicant’s eligibility for asylum,” including “changes in applicable U.S. law and activities the applicant becomes involved in outside the country of feared persecution that place the applicant at risk,” 8 C.F.R. § 1208.4(a)(4)(i)(B) (2007). We accept for the sake of argument that the deadline waiver standard of “changed circumstances” for a successive asylum application is likely broader than the deadline waiver standard of “changed country conditions” for a motion to reopen.
The Board, however, has concluded that aliens already under a final order of removal are bound by INA § 240’s filing deadline for motions to reopen. In Matter of C-W-L-, 24 I. & N. Dec. 346, the Board held that a successive and untimely asylum application filed by an alien under a final order of removal must satisfy the requirements for a motion to reopen. This decision of the Board has precedential effect and is entitled to deference under Chevron, 467 U.S. 837, 104 S.Ct. 2778, so long as it is not arbitrary, capricious, or contrary to the statute. See id. at 844, 104 S.Ct. 2778. See also Immigration & Naturalization Serv. v. Aguirre-Aguirre, 526 U.S. 415, 424, 119 S.Ct. 1439, 143 L.Ed.2d 590 (1999) (Chevron deference applies to INA). A reasonable interpretation of a provision or provisions in the statute made by an administrator of an agency is afforded substantial deference. Thomas Jefferson Univ. v. Shalala, 512 U.S. 504, 512, 114 S.Ct. 2381, 129 L.Ed.2d 405 (1994).
Just as we did recently in Liu v. Att’y Gen. of U.S., 555 F.3d 145 (3d Cir.2009), we hold that the Board’s interpretation of the relationship between INA § 208(a)(2)(D), 8 U.S.C. § 1158(a)(2)(D), and INA § 240(e)(7)(C)(i), 8 U.S.C. § 1229a(c)(7)(C)(i), is reasonable. The issue for the Board in Matter of C-W-L- as in Lie’s case, was whether to entertain the application as a free-standing claim for asylum subject to the more liberal exception in section 1158(a)(2)(D), and without regal’d to the time limit on motions to reopen found in section 1229a(c)(7)(C)(i). This required the Board to “consider the relationship between sections 208(a)(2)(D) and 240(c)(7)(C)(ii) of the Act and the corresponding regulations that implement those sections of the statute.” 24 I. & N. Dec. at 348. The Board explained that INA §§ 208(a)(2)(B)-(C) of the Act provide that an alien may file only one claim for asylum, which must be filed within one year of his or her arrival in the United States. 8 U.S.C. § 1158(a)(2)(B)-(C). Exceptions to the filing deadline and the prohibition on refiling after the denial of an asylum application do not apply “if the *710alien demonstrates to the satisfaction of the Attorney General either the existence of changed circumstances which materially affect the applicant’s eligibility for asylum or extraordinary circumstances relating to the delay in filing an application within the period specified.” INA § 208(a)(2)(D), 8 U.S.C. § 1158(a)(2)(D).
Section 240(c)(7)(C)(ii) of the Act, 8 U.S.C. § 1158(c)(7)(C)(ii), on the other hand, was enacted as part of the Illegal Immigration Reform and Immigrant Responsibility Act of 1996 (“IIRIRA”), and was intended to curb abuse of the asylum process. Matter of C-W-L-, 24 I. & N. Dec. at 349. It provided for one motion to reopen filed within 90 days of the final order of removal (except in some limited circumstances not applicable here). However, if the purpose of the motion to reopen is to file a successive asylum application, the 90-day deadline will be excused so long as the alien can show “changed country conditions arising in the country of nationality or the country to which removal has been ordered, if such evidence is material and was not available and would not have been discovered or presented at the previous proceeding.” INA § 240(c)(7)(C)(ii), 8 U.S.C. § 1229a(c)(7)(C)(ii).
The Board surmised that section 208(a)(2)(D) of the Act was silent on the issue of reopening, “most likely because the requirement of an accompanying motion to reopen once a final order of removal has been entered is clearly set forth in other parts of the statutory and regulatory scheme.” Matter of C-W-L-, 24 I. & N. Dec. at 352. Moreover, “the statutory bars that are exempted by sections 208(a)(2)(D) are separate from, and apply principally at an earlier stage of proceedings than, the 90-day reopening provisions in both the statute and regulations.” Id. at 353 (citations omitted). Accordingly, the Board reasoned, the “reopening restrictions are best viewed as additional limitations on the ability of aliens to use either asylum or withholding claims as a means of reopening final orders of exclusion, deportation, or removal.” Id.
In Liu, 555 F.3d 145, we found this interpretation reasonable and entitled to Chevron deference. It is reasonable for the Board to conclude that an alien who has ignored her final order of removal is not entitled to avoid the time-limit for filing a motion to reopen by framing her request for relief as a successive asylum application under INA § 208 on the basis of changed personal circumstances. Absent a showing of changed conditions in Indonesia, Lie is bound by the 90-day deadline for filing a motion to reopen. We defer to the Board’s construction under Chevron, concluding that it is a permissible reading of the statutory provisions. Liu, 555 F.3d at 150 (holding that 8 U.S.C. § 1158(a)(2)(D) “must be applied in harmony with 8 U.S.C. § 1229a(e)(7)(C) and the regulations at 8 C.F.R. §§ 1003.2(c)(2), 1003.2(c)(3)(h), and 1003.23(b)).”
As we noted in Liu, 555 F.3d at 151, we have “much company” because other courts of appeals are in agreement. In Yuen Jin v. Mukasey, 538 F.3d 143 (2d Cir.2008), for example, the Court of Appeals for the Second Circuit, agreeing with the Court of Appeals for the Seventh Circuit, held that aliens under a final order of removal are required to show changed country conditions, rather than changed personal circumstances. See id. at 152. The court explained:
Any potential tension between [8 C.F.R. § 1208.4(a)(4)’s] broad provision that changed country conditions or changed personal circumstances can support a new asylum application under § 1158(a)(2)(D) and the BIA’s determination that only changed country conditions can support a new asylum appli*711cation filed by an alien under a final removal order is easily resolved. As the Seventh Circuit noted in Cheng Chen, § 1158(a)(2)(D) “says nothing about the situation in which the applicant has already been ordered removed, the order has become final, and the time for reopening the removal proceeding has expired.” Thus, ... 8 U.S.C. § 1229(a)(c)(7)(C), which delineates the requirements for such a motion when a final order has issued, can properly be read as filling this gap by setting forth the mechanism by which an alien may file a successive asylum petition when the alien has already been ordered removed.
Id. at 152-53 (citing Cheng Chen v. Gonzales, 498 F.3d 758, 760 (7th Cir.2007)).
In short, the Board’s interpretation gives meaning to both 8 U.S.C. § 1229a(c)(7)(C) and 8 U.S.C. § 1158(a)(2)(D). Liu, 555 F.3d at 150. A statute should be construed so as to give effect to all of its provisions; it should not be construed so as to render a portion of it superfluous, void, or meaningless. Disabled in Action of Pa. v. Southeastern Pa. Transp. Authority, 539 F.3d 199, 211 (3d Cir.2008). An alien may file a successive asylum application based on changed personal circumstances or changed country conditions, pursuant to 8 U.S.C. § 1158(a)(2)(D), at any time during proceedings before the entry of a final order of removal, or within the 90-day deadline for a motion to reopen. Outside of those circumstances, changed country conditions under 8 U.S.C. § 1229a(c)(7)(C)(ii) must be shown. Liu, 555 F.3d at 150-52; Yuen Jin, 538 F.3d at 152-53; Cheng Chen, 498 F.3d at 760. See also Chen v. Mukasey, 524 F.3d 1028, 1032-33 (9th Cir.2008) (deferring to Board’s interpretation in Matter of C-W-L- and noting that “[fits interpretation harmonizes the competing exceptions”); Hui Zheng v. Holder, 562 F.3d 647, 654 (4th Cir.2009) (same); Zhang v. Mukasey, 543 F.3d 851, 858-59 (6th Cir.2008) (same); Zheng v. Mukasey, 509 F.3d 869, 872 (8th Cir.2007) (regulatory history of 8 C.F.R. § 1208.4 does not support assertion of “intent to weaken the requirements of a motion to reopen when an alien under a final order of removal seeks to file an untimely or successive asylum application”).
Lie contends that her due process rights and rights under international law have been violated. With respect to her due process argument, we agree with the Second Circuit that an alien who has already filed one asylum application, been adjudicated removable after a full and fair hearing and ordered deported, and who has nevertheless remained in the country illegally, does not have a liberty or property interest in a discretionary grant of asylum. Yuen Jin, 538 F.3d at 157. Cf. Mudric v. Att’y Gen. of U.S., 469 F.3d 94, 99 (3d Cir.2006) (in making request for immigration benefits aliens have only those statutory rights granted by Congress). The fact remains that Lie has remained in the United States in violation of the law, see 8 U.S.C. § 1253(a)(1)(A) (setting forth penalties for an alien who “willfully fails or refuses to depart from the United States within a period of 90 days from the date of the final order of removal under administrative processes”). Furthermore, due process does not prevent the Attorney General from setting reasonable procedures and limits on successive asylum applications. Cf. Sukwanputra v. Gonzales, 434 F.3d 627, 631-32 (3d Cir.2006) (it does not violate due process for Congress to impose reasonable limitations on filing of naturalization petitions). We note that the time and number limitations do not apply when the Department of Homeland Security does not oppose the motion to reopen, see 8 C.F.R. § 1003.2(c)(3)(iii) (time and number limita*712tions do not apply where motion to reopen is “[ajgreed upon by all parties and jointly filed”), and it is also within the Board’s discretion to reopen proceedings sua sponte if it determines, based on an alien’s particular circumstances, that reopening is warranted, see 8 C.F.R. § 1003.2(a) (“The Board may at any time reopen or reconsider on its own motion any case in which it has rendered a decision.”). Avenues for relief thus remain for aliens whose personal circumstances have changed more than 90 days after an order of removal becomes final.
Lie’s argument based on a violation of international law is similarly unavailing. The United States is a signatory to the 1967 United Nations Protocol Relating to the Status of Refugees, which incorporated the 1951 Convention. The Attorney General implemented l-egulations to comply with its terms, Immigration & Naturalization Serv. v. Stevic, 467 U.S. 407, 428-30, n. 22, 104 S.Ct. 2489, 81 L.Ed.2d 321 (1984), and, in 1980, Congress amended the INA by passing the Refugee Act, which brought U.S. domestic law into conformity with its treaty obligations under the 1967 Protocol, see id. at 421, 104 S.Ct. 2489. “The 1967 Protocol is not self-executing, nor does it confer any rights beyond those granted by implementing domestic legislation.” Al-Fara v. Gonzales, 404 F.3d 733, 743 (3d Cir.2005) (citing Stevic, 467 U.S. at 428 n. 22, 104 S.Ct. 2489). See also Sukivanputra, 434 F.3d at 631-32 (1951 Convention provides no enforceable rights beyond those granted by INA). Furthermore, Lie has presented no evidence that the Board’s interpretation of the statutory provisions at issue here conflicts with principles of international law.
Accordingly, Lie, who was subject to a final order of removal, was required to file a motion to reopen to pursue a new asylum application. Because she filed her motion to reopen more than ninety days after the entry of her final removal order, she was required to demonstrate that conditions in Indonesia had changed. She requested reopening and asylum based on a grant of asylum to her daughter, and concedes that this is evidence of changed personal circumstances, not changed country conditions within the meaning of 8 U.S.C. § 1229a(e)(7)(C)(ii). The Board thus did not abuse its discretion in denying her motion to reopen. In addition, we are without jurisdiction to review the Board’s decision declining to exercise its sua sponte authority to reopen removal proceedings. See Calle-Vujiles v. Ashcroft, 320 F.3d 472, 475 (3d Cir.2003).
For the foregoing reasons, we will deny the petition for review.
. Lie's husband, Pek Siong Lo, was named as a derivative applicant on his wife's asylum application.
. Ordinarily, an asylum application must be filed within one year of the alien's arrival in the United States, see id. at § 1158(a)(2)(B), and an alien who has previously applied and been turned down, may not re-apply, see id. at § 1158(a)(2)(C).
|
01-04-2023
|
11-05-2022
|
https://www.courtlistener.com/api/rest/v3/opinions/8473427/
|
OPINION OF THE COURT
ALDISERT, Circuit Judge.
The Estate of Albert P. Schultz (“Schultz”) appeals from the District Court’s summary judgment determination of Schultz’s action to enforce a back-pay order of the U.S. Merit Systems Protection Board (“MSPB”). After 17 years of protracted judicial and administrative litigation, the parties have settled the merits of the underlying matter, a disability discrimination claim by the late Mr. Schultz against the U.S. Postal Service, his former employer. In this appeal, Schultz challenges the District Court’s computation of the Postal Service’s back-pay (including benefits) and interest obligations under the Back Pay Act, 5 U.S.C. § 5596, and urges that the Court erred in refusing to consider arguments raised after Schultz’s original motion for summary judgment. We conclude that the District Court for the Western District of Pennsylvania did not err in calculating Schultz’s back pay award and applied the correct legal standards in making its calculations. We do determine that the Court erred in one aspect of its interest calculation: with respect to the Postal Service’s April 14, 2008 back-pay payment, statutory interest should have accrued until “a date not more than 30 days before” the April 14, 2008 payment. 5 U.S.C. § 5596(b)(2)(B)®. We further conclude that the District Court acted within its discretion in choosing not to entertain arguments raised by Schultz more than a year after the Court ruled on the parties’ cross-motions for summary judgment. We will affirm in part and remand to the District Court for the limited purpose of calculating outstanding interest relating to the April 14, 2008 payment.1
*715I.
Because we write only for the parties, who are familiar with the facts, procedural history and contentions presented, we truncate our discussion of this case’s overlong history.
Albert Schultz, a postal carrier hired in 1987, suffered from physical disabilities in his wrists and hands as a consequence of a work-related injury. See Schultz v. U.S. Postal Serv. (Schultz II), 78 M.S.P.R. 159, 161 (1998). He voluntarily took leave-without-pay status on November 6, 1990. He also sought wage-replacement benefits under the Federal Employees’ Compensation Act (“FECA”), 5 U.S.C. § 8101 et seq., which were granted by the Department of Labor’s Office of Workers’ Compensation Programs (“OWCP”).
On December 4, 1991, Schultz asked to return to work and requested accommodations for his injured hands and wrists. On February 24, 1992, the Postal Service informed him that it was considering his request to return to work, but his request was not granted. On November 24, 1992, the Postal Service discharged Schultz for failing to meet attendance requirements. See Schultz v. U.S. Postal Serv. (Schultz I), 70 M.S.P.R. 633, 635 (1996). Schultz sought administrative relief from the MSPB and the EEOC, alleging that the Postal Service’s actions constituted unlawful disability discrimination.2
The MSPB determined that Schultz’s absence from work became a constructive suspension in violation of the Rehabilitation Act, 29 U.S.C. § 791, on February 24, 1992, when the Postal Service failed to accommodate his physical disability. See Schultz II, 78 M.S.P.R. at 164. The MSPB also determined that Schultz’s November 24, 1992 removal violated the Rehabilitation Act and ordered the Postal Service to “cancel [his] removal and [reinstate] him effective November 24, 1992,” with the “appropriate amount” of back pay, interest and benefits. See Schultz I, 70 M.S.P.R. at 642. Schultz was reinstated in September 1995, although he never returned to work. He took disability retirement from the Postal Service in November 1997, but later exercised his right to continue receiving FECA/OWCP benefits beyond that date. The Postal Service offered him a “limited duty” position on March 11, 1998, which he declined. Schultz died in October 2000.
The instant case arose from a petition filed by the Schultz Estate for enforcement of the MSPB orders directing back payment for Schultz’s constructive suspension and removal periods. On May 12, 2004, while the petition for enforcement was pending before the MSPB, the parties entered into a settlement agreement resolving “all issues and claims against the agency related to Albert Schultz’s employment,” with two exceptions: (1) the proper amount of back pay due for the period after November 23,1992 and (2) the timeliness of Schultz’s enforcement action. *716(App.166-167.) On September 13, 2004, an Administrative Judge of the MSPB concluded that Schultz’s enforcement action was untimely. The full Board adopted that decision as its final order on July 22, 2005. The Schultz Estate filed this suit in the District Court on August 22, 2005, and the Postal Service subsequently abandoned its timeliness defense. The sole dispute in the District Court concerned the proper amount of back pay (including benefits) and interest due Schultz for the period after his removal on November 24, 1992.
II.
After discovery, Schultz moved for summary judgment, asking the District Court to resolve three questions regarding the back-pay claim:
1. Is the value of fringe benefits payable, and if so, what is the monetary value of fringe benefits payable?
2. On what date do back pay and benefits terminate?
3. If and when should workers’ compensation benefits offset back pay in the interest computation under the Back Pay Act?
The Postal Service cross-moved for summary judgment on each point. (App.4.)
On the issue of fringe benefits, the District Court held that the calculation of fringe benefits must be specific to the employee and cannot be based on generalized figures. The Court also held that the Postal Service was required to include health benefits in its calculation of Schultz’s back pay, but was not required to include the value of contributions to Schultz’s Thrift Savings Plan (“TSP”), as he never participated in the TSP. On the issue of termination of back pay, the Court held that the termination date for the calculation of back pay was June 12, 1996, the date that the MSPB ordered corrective action. On the issue of offsets, the Court held that the Postal Service was entitled to offset back pay by the amount of FECA/ OWCP benefits received by Schultz, and that FECA/OWPC benefits are to be offset prior to calculating back-pay interest. The Court’s order was dated April 12, 2007 and was filed the next day. On April 14, 2008, the Postal Service paid Schultz $103,769.81 in accordance with this order, calculating interest through April 12, 2007. (App. 1.09-1.10; App. 10-11; Appellant’s Br. 21; Appellee’s Br. 56.)
At a hearing on May 2, 2007, the District Court concluded, without opposition, that no outstanding issues remained and ordered that the case “be marked closed.” (App.2.) Schultz filed a notice of appeal on June 11, 2007. Oral argument was heard in this Court, but on July 22, 2008, we dismissed the case for lack of jurisdiction and remanded to the District Court for final disposition. See Estate of Schultz v. Potter, 285 Fed.Appx. 886 (3d Cir.2008) (finding that the District Court had issued an “administrative close-out order” that lacked finality).
On remand, the District Court specified that the total value of back pay due Schultz was $99,760.65 ($47,246.69 in back pay and allowances plus $52,315.73 interest plus $198.23 retirement deduction) and that the sum-certain value for health care benefits was $32,196.51 (for the period of November 24, 1992 to November 1, 1995, plus interest through the date of the previous District Court order).3 Accordingly, the Court held that the total value of back pay, benefits and interest owed to Schultz totaled $131,957.16, and that because the Postal Service had already paid Schultz $103,769.81, the outstanding balance was $28,187.35. On remand, Schultz also filed a “Motion for Clarification,” which pre*717sented arguments and evidence not reflected in Schultz’s original motion for summary judgment or reply, and requested that the District Court consider all arguments raised in its briefs before this Court. The District Court rejected these arguments as untimely and entered final judgment on September 16, 2008.
Schultz timely filed a motion to alter the judgment, contending that (1) the District Court had overlooked evidence and arguments in Schultz’s original motion for summary judgment, (2) the parties had not agreed that no issues were outstanding and (3) Schultz was entitled to benefits for the period of his constructive suspension from February 24, 1992 to November 23, 1992. The District Court rejected these contentions, but amended its order to direct that “the ending date for computation of interest for payment not yet made is not more than 30 days before the date on which payment is made.” (App. 1.04 (citing 5 U.S.C. § 5596(b)(2)(B)(i)).) The District Court issued its ruling on October 30, 2008. Schultz timely appealed on November 17, 2008.
III.
Schultz contends that the District Court erred in construing 5 U.S.C. § 5596(b)(2)(B)(i) to apply only to “payment not yet made,” and contends that the Court’s construction prematurely ended the interest accrual period on the amount paid by the Postal Service on April 14, 2008. Schultz argues that under 5 U.S.C. § 5596(b)(2)(B)®, interest on this amount should have accrued until a date “not more than 30 days before the date on which payment [was] made.” He urges that the District Court erred in permitting interest on the April 14, 2008 payment to accrue only through April 12, 2007, the date the District Court initially ordered that amount to be paid.
We agree. The Back Pay Act directs that interest on back pay due under the Act “shall be computed for the period beginning on the effective date of the withdrawal or reduction involved and ending on a date not more than 30 days before the date on ivhich payment is made.” 5 U.S.C. § 5596(b)(2)(B)® (emphasis added); see also 5 C.F.R. § 550.806(b), (f). The District Court correctly amended its order to reflect this statutory directive with regard to back-pay amounts not yet paid and should have done the same with regard to the amount paid to Schultz on April 14, 2008. Though this case has already overworked the judiciary, we remand to the District Court on one issue: the computation of interest still owing on the back-pay amount paid on April 14, 2008, which accrued, as a matter of law, “from the date of the withdrawal or reduction involved and ending on a date not more than 30 days before” April 14, 2008. 5 U.S.C. § 5596(b)(2)(B)®.4 We expect the active parties on remand to extend the maximum good faith effort to reach agreement on this straightforward mathematical calculation without adding additional burdens on the District Court.
IV.
Schultz next contends that FECA/ OWPC wage-replacement payments should have been offset from the calculation after interest was calculated for outstanding back pay rather than before interest was *718calculated. For the back-pay period between November 24, 1992 and June 12, 1996, Schultz received $77,390.89 in FECA/OWPC payments from the Postal Service. Schultz contends that the Back Pay Act requires that interest be paid on this $77,390.89 amount in addition to interest on the difference between that amount and what he would have earned had he not been terminated. We disagree.
The Back Pay Act endeavors “to make workers whole who [have] suffered on account of unfair labor practices.” Martin v. Dep’t of Air Force, 184 F.3d 1366, 1372 (Fed.Cir.1999). To that end, the Act awards back pay and interest when “an appropriate authority” directs the correction of an unjustified personnel action that deprived the employee of pay. 5 C.F.R. §§ 550.805-550.806. A back-pay award restores to the employee “an amount equal to all or any part of the pay, allowances, or differentials” he or she would have received if the unjustified action had not occurred, offset by any (1) “outside earnings undertaken to replace the employment” and (2) “erroneous payments received from the government as a result of the unjustified or unwarranted personnel action.” Id. § 550.805(e)(l)-(2); see 5 U.S.C. § 5596(b)(l)(A)(i). Interest on such an award accrues from “the date or dates (usually one or more pay dates) on which the employee would have received the pay, allowances, and differentials if the unjustified or unwarranted personnel action had not occurred.” 5 C.F.R. § 550.806(a)(1). Significantly, “outside earnings” are deducted from gross back pay before interest is calculated, while “erroneous payments” are deducted after the calculation of interest. See id. § 550.806(c).
Schultz seeks to maximize interest on his back-pay award by characterizing FECA/OWPC benefits as “erroneous payments.” We reject this characterization. FECA/OWPC wage-replacement payments, a form of workers’ compensation, arise from a separate statutory scheme— FECA — and do not fall into either the “outside earnings” or “erroneous payments” categories of the Back Pay Act.5 Contrary to Schultz’s contention, the FECA/OWPC payments were not received by Schultz “as a result of the unjustified or unwarranted personnel action,” but as compensation for his work-related injury. Employees may recover under both FECA and the Rehabilitation Act, which address different injuries: work-related injuries resulting in diminished working capacity and discriminatory actions by employers, respectively. See Miller v. Bolger, 802 F.2d 660, 663, 665-667 (3d Cir.1986). Accordingly, Schultz’s receipt of FECA/ OWPC benefits is hardly “erroneous.”
The Postal Service contends that FECA/OWCP benefits fall within the definition of “pay, allowances, and differentials” Schultz had already received, and hence should be deducted before computing interest. We agree. In assessing back pay due under the Back Pay Act, the first step is to compute the “pay, allowances, and differentials” of which the employee was deprived due to the unwarranted personnel action. 5 U.S.C. § 5596(b)(1)(A)(i). The implementing regulations state that “[p]ay, allowances, and differentials means pay, leave, and other monetary employment benefits to which an employee is entitled by statute or regulation and which are payable by the employing agency to an employee during periods of Federal employment.” 5 C.F.R. *719§ 550.803. FECA/OWCP wage-replacement payments are a monetary employment benefit, to which an injured federal employee is entitled by statute, payable by the employing agency. Accordingly, we determine that FECA/OWCP benefits qualify as “pay, allowances, and differentials” under the Back Pay Act.
We conclude that the District Court properly computed interest after deducting the $77,390.89 in FECA/OWCP benefits from Schultz’s gross back-pay award. It would be a windfall to Schultz if the Postal Service were required to pay interest on monies it had already paid him.6 Indeed, the Back Pay Act’s objective of remedying “unfair labor practices” would not be advanced by a decision awarding interest on payments already received. See Martin, 184 F.3d at 1372.
V.
Without need for elaboration, we conclude that the District Court properly calculated Schultz’s fringe benefits. Additionally, the District Court acted within its discretion to not entertain arguments and evidence not reflected in Schultz’s original motion for summary judgment or reply, including Schultz’s attempt to extend the time frame for calculating health benefits. We find Schultz’s remaining contentions untimely and without merit.
* * * * * *
We have considered all contentions raised by the parties and conclude that no further discussion is necessary.
We will remand to the District Court for final computation of interest due on the back-pay amount paid on April 14, 2008, in accordance with this opinion. We trust that this straightforward mathematical calculation will mark the end of this interminable ease. On all other points the judgment of the District Court will be affirmed.
. The District Court had jurisdiction over Schultz’s action to enforce the MSPB decision pursuant to 5 U.S.C. § 7703(b)(2). This Court dismissed an earlier appeal for lack of subject matter jurisdiction. See Estate of Schultz v. Potter, 285 Fed.Appx. 886 (3d Cir.2008). The District Court entered final judgment on September 16, 2008, 2008 WL 4279811. Schultz timely filed a motion to alter the judgment pursuant to Rule 59(e) of the Federal Rules of Civil Procedure, which the District Court granted in part and denied in part on October 30, 2008, 2008 WL 4790653. Schultz timely appealed on November 17, 2008. We have jurisdiction pursuant to 28 U.S.C. § 1291.
We review the District Court’s grant of summary judgment de novo, using the same standard the District Court should have applied. Union Pac. R.R. Co. v. Greentree Transp. Trucking Co., 293 F.3d 120, 125 (3d Cir.2002). Actions before the MSPB are generally classified as either "pure" or "mixed.” "A pure case is when the employee alleges harm from an improper non-discriminatory personnel decision. A mixed case, on the other hand, is when the employee alleges such a personnel decision resulted in part from prohibited discrimination.” Kean v. Stone, 966 F.2d 119, 121 (3d Cir.1992). Because Schultz alleged both an improper personnel action and discriminatory discharge, this was a mixed case. In mixed cases, the MSPB's decision concerning the discrimination issue is reviewed de novo, whereas its decision concerning the civil service issue is reviewed under a deferential *715standard. See 5 U.S.C. § 7703(c). We agree with the District Court that because this case stems from Schultz’s discrimination claim, it is subject to de novo review, although our ruling would be the same even under a deferential review. We ordinarily review a district court's back-pay calculations for abuse of discretion. Durham Life Ins. Co. v. Evans, 166 F.3d 139, 156 (3d Cir.1999). But where the question is whether the district court applied the correct legal standard in its back-pay calculations, our review is plenary. Cf. Kean, 966 F.2d at 121. We review a district court’s decision not to entertain new arguments not adequately raised in the parties’ summary judgment papers for abuse of discretion. Kiewit E. Co., Inc. v. L & R Constr. Co., 44 F.3d 1194, 1204 (3d Cir.1995).
. Schultz alleged discrimination based on both physical and mental disabilities. The claims related to mental disabilities were rejected by the MSPB and EEOC. See Schultz II, 78 M.S.P.R. at 164-166.
. Although the District Court indicated its previous order was dated April 27, 2007, it appears the actual date of that order was April 12, 2007. (App. 109.)
. We would have preferred if in its brief Appellant (1) had asserted its objections to the District Court’s interest calculation to the District Court, (2) had calculated the amount of additional interest it now claims is due and shared that information with this Court and (3) cited some authority to support its cursory, three-paragraph argument on this issue. But because we remand to the District Court only on one narrow issue, we deliberately overlook the derelictions of the Appellant in its brief.
. Although administered by the Department of Labor, there is no collateral payment source under FECA and the Postal Service was the sole source of the actual payments made.
. To the extent that Schultz argues that he was deprived of the time value of some of his FECA/OWCP benefits because of delayed receipt of certain payments, the timing of these payments is entrusted solely to the Department of Labor, 5 U.S.C. § 8128(a), and is not subject to review by this Court. See 5 U.S.C. § 8128(b); McDougal-Saddler v. Herman, 184 F.3d 207, 211-214 (3d Cir.1999).
|
01-04-2023
|
11-05-2022
|
https://www.courtlistener.com/api/rest/v3/opinions/8473429/
|
OPINION OF THE COURT
FUENTES, Circuit Judge:
Mahesh Tejwani, a citizen and native of India, was convicted of money laundering in violation of New York law. As a result, Tejwani was ordered removed as an alien convicted of a crime of moral turpitude within five years of admission. 8 U.S.C. § 1227(a)(2)(A)(i)(I). In affirming this order, the Board of Immigration Appeals (“BIA”) held that Tejwani’s New York money laundering offense involved deception and the concealment of criminal conduct from the government, thus constituting a crime of moral turpitude. Tejwani petitions for review of this determination and further argues that the BIA erred in applying new law retroactively in ruling on his appeal.
We defer to the BIA’s definition of moral turpitude and its use of the categorical approach, which focuses on the statute and the record of conviction, rather than the specific conduct committed by the alien. However, because we find that deception and the concealment of criminal conduct from the government are not required to prove money laundering under New York law, and because we find that money laundering was not a crime of moral turpitude under the BIA’s binding case law at the time of Tejwani’s conviction, we will grant the petition for review.
I.
Tejwani was admitted to the United States as a lawful permanent resident in March 1995. He is married to a United States citizen and has two United States citizen children, now teenagers. On November 30, 2000, Tejwani was convicted of two counts of money laundering in violation of N.Y. Penal Law § 470.10 (1999) (“the money laundering statute”).
By pleading guilty, Tejwani admitted to engaging in a financial transaction involving U.S. currency to conceal or disguise the nature, location, source, or ownership of drug proceeds, knowing that the monetary instruments involved were the proceeds of some illegal activity. Tejwani did not admit that he knew that the illegal activity was drug trafficking. (A.R. at 281, 287-88.) He was sentenced to a term of imprisonment.
In October 2001, the Immigration and Naturalization Service served Tejwani with a Notice to Appear charging him with removability pursuant to 8 U.S.C. § 1227(a)(2)(A)(iii) as an alien convicted of *721an aggravated felony. This charge was dismissed and replaced with a charge that Tejwani was removable under 8 U.S.C. § 1227(a)(2)(A)(i)(I) as an alien convicted of a crime of moral turpitude committed within five years of admission.2 On June 20, 2003, the Immigration Judge (“IJ”) found that the offenses were crimes of moral turpitude and ordered Tejwani removed. Tejwani appealed and the BIA affirmed without opinion in September 2004. Tejwani then petitioned this Court for review. Another panel of this Court remanded, holding that whether money laundering constituted a crime of moral turpitude was an issue of first impression which should not have been resolved in a summary order. Tejwani v. Att’y Gen. of the U.S., 159 Fed.Appx. 412, 413 (3d Cir.2005). Following remand, in a decision issued in February 2007, the BIA once again affirmed the IJ.
Tejwani filed a second petition challenging this determination. Tejwani also filed a motion to reopen, arguing that he should be permitted to apply for cancellation of removal under 8 U.S.C. § 1229b(a)(2) (providing that a lawful permanent resident is eligible for cancellation of removal only after seven years of continuous residence and five years as a lawful permanent resident). Specifically, Tejwani argued that he was eligible for cancellation of removal because more than seven years had passed since he committed his offense. He further argued that proceedings should be terminated to allow him to pursue an application for naturalization. His motion to reopen was denied by the BIA and Tejwani filed a third petition for review. Tejwani’s second and third petitions for review have been consolidated.
In its February 2007 decision, the BIA correctly stated that the categorical approach applies to evaluating whether an offense under the money laundering statute constitutes a crime of moral turpitude. In re Tejwani, 24 I. & N. Dec. 97, 98 (B.I.A.2007). The BIA reasoned that an act which obstructs the function of a government agency “by deceit, graft, trickery, or dishonest means is a crime involving moral turpitude.” Id. The BIA also relied on its 2006 case, In re Robles-Urrea, 24 I. & N. Dec. 22, 25-26 (B.I.A.2006), for the proposition that “[ajffirmative acts to conceal criminal activity and impede law enforcement have been found to be crimes involving moral turpitude.” Id. The BIA further reasoned that money laundering requires proof of intent to conceal rather than mere failure to report, as in financial structuring. Id. at 99. Again relying on Robles-Urrea for the proposition that concealing criminal conduct is a crime of moral turpitude “regardless of whether the concealed offense is a crime involving moral turpitude,” the BIA held that money laundering was categorically a crime of moral turpitude. Id.
II.
We have jurisdiction to review the BIA’s orders pursuant to 8 U.S.C. § 1252(a). Our review of legal issues is plenary, subject to Chevron deference. Knapik v. Ashcroft, 384 F.3d 84, 87 (3d Cir.2004). We afford deference when an agency construes or interprets a statute it administers. Id. Thus, “we defer, under Chevron, ‘to the BIA’s definition of moral turpitude,’ as well as the BIA’s determination that a certain crime involves moral turpitude.” Mehboob v. Att’y Gen. of U.S., 549 F.3d 272, 275 (3d Cir.2008) (quoting Knapik, 384 F.3d at 88 n. 3).
Analyzing the elements of a state criminal statute does not implicate the BIA’s expertise. Knapik v. Ashcroft, 384 F.3d *72284, 88 (3d Cir.2004). Accordingly, “[n]o deference ... is given to the BIA’s parsing of the elements of the underlying crime.” Mehboob, 549 F.3d at 275; see also Partyka v. Att’y Gen. of the U.S., 417 F.3d 408, 411 (3d Cir.2005) (“[W]e owe no deference to the Id’s interpretation of a state criminal statute.”). We therefore analyze the elements of an underlying crime de novo. Knapik, 384 F.3d at 88.
Tejwani argues that the BIA erred in concluding that money laundering, evaluated under the categorical approach, met the definition of moral turpitude used by the BIA. Tejwani also argues that the BIA erred in applying Robles-Urrea, a case it decided over six years after Tejwani’s offense was complete, rather than the law that existed at the time of Tejwani’s guilty plea.
1.
In this case the BIA used the following definition of moral turpitude:
Moral turpitude is conduct that is inherently base, vile, or depraved, and contrary to the accepted rules of morality and the duties owed to other persons, either individually or to society in general. It generally involves conduct that is contrary to justice, honesty, or morality. A crime that impairs and obstructs a function of a department of government by defeating its efficiency or destroying the value of its lawful operations by deceit, graft, trickery, or dishonest means is a crime involving moral turpitude. Affirmative acts to conceal criminal activity and impede law enforcement have been found to be crimes involving moral turpitude. Crimes containing as an element a specific intent to defraud always involve moral turpitude, but we have also determined that certain crimes are inherently fraudulent and involve moral turpitude even though they can be committed without proof of a specific intent to defraud.
As set forth above, we must defer to the BIA’s definition of moral turpitude if it is reasonable. For the purposes of this case, we assume that this definition was reasonable.
2.
We apply the categorical approach to evaluating whether an offense meets the definition of moral turpitude. See Jean-Louis v. Attorney General of the United States, 582 F.3d 462, 482 (3d Cir.2009) (rejecting the Attorney General’s modified “realistic probability test” advanced in Matter of Cristoval Silva-Trevino, 24 I. & N. Dec. 687, 706-708 (A.G.2008), and affirming the historically applied categorical approach). In so doing, we consider the criminal statute and the record of conviction, not the alien’s conduct. Partyka, 417 F.3d at 411-12; Knapik, 384 F.3d at 88, 90-91; De Leon-Reynoso v. Ashcroft, 293 F.3d 633, 635 (3d Cir.2002). Applying the categorical approach, “a crime involves moral turpitude when ‘the least culpable conduct necessary to sustain a conviction under the statute’ can be considered morally turpitudinous.” Mehboob, 549 F.3d at 275 (quoting Partyka, 417 F.3d at 411). Accordingly, we must determine the least culpable conduct that could result in a conviction under the New York money laundering statute, and compare that conduct to the BIA’s definition of moral turpitude.
The relevant portion of the New York money laundering statute provides that:
A person is guilty of money laundering in the second degree when that person exchanges or receives in exchange, in one or more transactions, one or more monetary instruments which are the proceeds of specified criminal conduct and have a total value exceeding ten thousand dollars for one or more other monetary instruments and/or equivalent *723property when that person knows that the monetary instrument or instruments exchanged or received in exchange are the proceeds of any criminal conduct and that person:
1. intentionally makes the exchange to conceal or disguise the nature, the location, the source, the ownership, or the control of such proceeds.
N.Y. Penal Law § 470.10 (1999) (emphasis added).3 “Specified criminal conduct” includes serious offenses such as homicide and rape, as well as nonturpitudinous conduct such as criminal mischief, usury, contempt, firearms offenses, unauthorized recordings, and antitrust violations. N.Y. Penal Law §§ 470.00, 460.10.
Thus, the essential elements of money laundering are that: (1) the actor knows that the property involved in the financial transaction represents the proceeds of any unlawful activity; (2) the actor “conducts” the financial transaction which in fact involves the proceeds of specified unlawful activity (including most felonies); (3) the perpetrator acts with knowledge that the transaction is designed to conceal or disguise the nature, the location, the source, the ownership or the control of the proceeds; and (4) the total value of the property involved exceeds $10,000. See N.Y. Penal Law § Donnino, Practice Commentaries, McKinney’s Consol. Laws of N.Y., Book 39, Penal Law art 470 (setting forth elements of equivalent money laundering offense).
These elements do not meet the criteria the BIA relied on in holding that Tejwani’s offense met its definition of moral turpitude. The BIA focused on the fact that a money launderer takes “affirmative steps to conceal or disguise the proceeds of criminal conduct]]] acts in an inherently deceptive manner and impairs governmental function, specifically the ability to detect and combat criminal activity.” The BIA further stated that “[s]uch interference in governmental function is inherently dishonest and contrary to accepted moral standards.” Here, however we have a problem: deception and knowingly or recklessly concealing criminal conduct from the government are neither elements of money laundering nor inherent characteristics of the offense.
Certainly, “classic money laundering”— that is “taking steps to make [criminal] funds appear legitimate” (Regalado Cuellar v. United States, 553 U.S. 550, 128 S.Ct. 1994, 2000, 170 L.Ed.2d 942 (2008))— may constitute a deceptive attempt to conceal criminal conduct from the government. However, as set forth below, many money laundering statutes, like the New York statute at issue in this case, reach a far broader range of conduct. Again, under the categorical approach we are concerned only with the least culpable conduct a statute reaches. Mehboob, 549 F.3d at 275.
In Regalado Cuellar, the Supreme Court considered whether a federal money laundering statute (with language similar *724to that at issue here) required proof of “an attempt to create the appearance of legitimate wealth.”4 128 S.Ct. at 1998. In that case, the Court rejected Regalado Cuel-lar’s argument that concealing or disguising the nature, location, source, ownership, or control of the proceeds of unlawful activity “would necessarily have the effect of making the funds appear legitimate, and, conversely, revealing any such attribute would necessarily reveal the funds as illicit.” Id. at 2000; see also id. at 2001 (reasoning that “revealing those attributes — nature, location, source, ownership, or control — would not necessarily expose the illegitimacy of the funds”). The Court continued by observing that “[i]t might be possible for a defendant to conceal or disguise a listed attribute without also creating the appearance of legitimate wealth.” Id. For example, knowingly depositing the proceeds of non-turpitudinous conduct into a bank account in exchange for a cashiers check to avoid being mugged disguises the location of those proceeds, but does not create the appearance of legitimate wealth, suggest dishonesty, or necessarily hinder detection of the underlying conduct.
The New York statute — which also prohibits concealing or disguising the nature, location, source, ownership, or control of the proceeds of unlawful activity — similarly does not require proof of an attempt to create the appearance of legitimate wealth. Thus, contrary to the BIA’s assumption, the New York statute is broader than classic money laundering and does not require a deliberate act to concéal illegal activity. In short, deliberately concealing the listed characteristics of criminal proceeds does not imply an intent to conceal the underlying criminal activity.
Further, although concealing the listed characteristics of criminal proceeds may unintentionally — but foreseeably — impede a government investigation, intentional or reckless conduct is required to find moral turpitude. Mehboob, 549 F.3d at 276 (“[E]vil intent is a requisite element for a crime involving moral turpitude.”); Partyka, 417 F,3d at 416 (holding that “negligently inflicted bodily injury lacks the inherent baseness or depravity that evinces moral turpitude”); De Leon-Reynoso, 293 F.3d at 636 (distinguishing negligent possession of stolen property — not a crime of moral turpitude — from possession of property knowing that it was probably stolen— a crime of moral turpitude); In re Khourn, 21 I. & N. Dec. 1041, 1046 (B.I.A.1997) (“ ‘[E]vil intent’ is a requisite element for a crime involving moral turpitude.”); In re Flores, 17 I. & N. Dec. 225, 227 (B.I.A. 1980) (“An evil or malicious intent is said to be the essence of moral turpitude.”); In re Abreu-Semino, 12 I. & N. Dec. 775, 777 (B.I.A.1968) (“[M]oral turpitude normally inheres in the intent.”); In re P — , 2 I. & N. Dec. 117, 121 (B.I.A.1944) (“One of the criteria adopted to ascertain whether a particular crime involves moral turpitude is that it be accompanied by a vicious motive or corrupt mind. ‘It is in the intent that moral turpitude inheres.’”) (quoting United States ex rel. Meyer v. Day, 54 F.2d 336 (2d Cir.1931)); Michel v. INS, 206 F.3d 253, 263 (2d Cir.2000) (“[Corrupt scienter is the touchstone of moral turpitude.”). The BIA relied on the fact that the New York statute contained a scienter requirement. However, as set forth above, the scienter requirement is not intended to deceive or hinder lawful authorities.
*725Accordingly, because the New York statute reaches conduct that does not meet the BIA’s definition of moral turpitude, the categorical approach compels us to conclude that money laundering is not a crime of moral turpitude under New York law.5
III.
For the foregoing reasons, we will grant Tejwani’s petition for review of his order of removal. Accordingly, the issues raised in his petition to review the BIA’s refusal to reopen his case are moot and that petition will be denied.
. Although Tejwani was not convicted until more than five years after he was admitted, Tejwani does not dispute that the offense was committed within five years of admission.
. Because die statute is not divisible in any relevant way, we may not apply the modified categorical approach, which would permit the Court to consider certain parts of the underlying record of conviction. See Evanson v. Att'y Gen. of U.S., 550 F.3d 284, 291-92 (3d Cir.2008) (discussing when various documents may be considered). However, we note that those portions of the underlying record of conviction would not provide any relevant additional information about Tejwani’s offense. In particular, the record does not state that Tejwani knowingly laundered the proceeds of a crime of moral turpitude, nor does it state that Tejwani knowingly or recklessly disguised from lawful authorities the illegal character of those proceeds. We also note that contrary to the BIA's analysis the statute has no explicit "deliberate act to conceal illegal activity" requirement. For the reasons that follow in text, we find that this requirement is also not implicit in the statute.
. "[F]ederal case law to date should guide the interpretation of these [New York] statutes [including the money laundering statutes].” People v. Rozenberg, 21 Misc.3d 235, 236, 862 N.Y.S.2d 895, 897 (N.Y.Sup.2008) (applying Regalado Cuellar companion case to interpret money laundering statute).
. Our holding is not inconsistent with Smalley v. Ashcroft, 354 F.3d 332, 339 (5th Cir.2003) (holding that knowingly concealing the proceeds of drug trafficking was a crime of moral turpitude). In Smalley, the Fifth Circuit relied on the fact that Smalley knew that he was concealing the proceeds of illegal drug transactions, and thus intentionally facilitating the drug trade. Id. at 337, 338-39. Further, to the extent that Smalley is inconsistent with Regalado Cuellar, we find that it is not persuasive.
|
01-04-2023
|
11-05-2022
|
https://www.courtlistener.com/api/rest/v3/opinions/8473433/
|
OPINION OF THE COURT
FISHER, Circuit Judge.
Antonio Figueroa appeals from the District Court’s order denying his motion to compel the Bureau of Prisons (“BOP”) to credit him for time served or, in the alternative, to correct his sentence. For the reasons that follow, we will vacate the District Court’s order and remand this case to the District Court.
I.
We write exclusively for the parties, who are familiar with the factual context and legal history of this case. Therefore, we will set forth only those facts necessary to our analysis.
In January 2002, Figueroa was arrested and charged by the Pennsylvania authorities with violating the terms of his probation and committing other offenses arising out of his participation in a home invasion robbery. In February 2002, he was sentenced in a Pennsylvania court to one to two years in prison for the probation violation.1
In February 2003, Figueroa was indicted by the federal government in the Eastern District of Pennsylvania on four charges arising out of the home invasion robbery.2 In April 2003, while Figueroa *729was still serving his sentence for the probation violation, the Pennsylvania authorities transferred him to the custody of the United States Marshals Service.3 That same month, Figueroa pled guilty in the United States District Court for the Eastern District of Pennsylvania to all four charges in the indictment. In April 2005, the District Court sentenced Figueroa to concurrent sentences of twelve months in prison on three of the charges and a consecutive term of eighty-four months in prison on the fourth charge. The District Court recommended that the BOP credit Figueroa for all time served since his January 2002 arrest and that his sentence ran concurrently with any other sentence, state or federal, that Figueroa may have been serving since that time. Figueroa did not appeal his sentence.
Figueroa was imprisoned at the Federal Detention Center in Philadelphia from April 2005 until June 2005, when he was transferred to the United States Penitentiary in Lewisburg, Pennsylvania. After approximately one week at the Lewisburg facility, Figueroa was transferred to the Federal Correctional Institution' — Schuylkill in Minersville, Pennsylvania.
In August 2007, while still imprisoned at the Minersville facility, Figueroa filed a motion in the United States District Court for the Eastern District of Pennsylvania seeking to compel the BOP to credit him for time served since January 2002 or, in the alternative, to correct his sentence. The District Court denied that motion on the ground that Figueroa had failed to exhaust his administrative remedies. Thereafter, Figueroa petitioned the BOP to credit him for time served. The BOP denied that petition. In February 2008, Figueroa filed another motion in the District Court seeking to compel the BOP to credit him for time served or, in the alternative, to correct his sentence. In November 2008, the District Court summarily denied Figueroa’s motion. In a footnote, the District Court clarified that it had only recommended, not ordered, that Figueroa receive credit for time served since January 2002 and that his federal sentence run concurrently with any other sentence. The District Court also found no error in either the BOP’s calculation of Figueroa’s credit for time served or its denial of his petition. This appeal followed.4
II.
We have an obligation to consider both our own jurisdiction and the jurisdiction of the District Court before entering an order on appeal. See United States v. Higgs, 504 F.3d 456, 457 (3d Cir.2007).
In his motion before the District Court, Figueroa cited no statutory basis for the relief he requested. Because Figueroa essentially challenged the manner in which his sentence was executed and not the validity of the sentence itself, he clearly sought relief that is available exclusively under 28 U.S.C. § 2241. See Woodall v. Fed. Bureau of Prisons, 432 F.3d 235, 241-44 (3d Cir.2005); Coady v. Vaughn, 251 F.3d 480, 485 (3d Cir.2001) (holding that 28 U.S.C. § “2241 is the only statute that confers habeas jurisdiction to hear the petition of a federal prisoner who is challenging not the validity but the execution *730of his sentence” (citations omitted)); see also, e.g., United States v. Grimes, 641 F.2d 96, 99 (3d Cir.1981) (rejecting the petitioner’s claim “that he [was] entitled to federal credit for time spent serving his state sentences” because it constituted “a challenge to the sentence as executed by the prison and parole authorities and should [have been] made on a petition for a writ of habeas corpus [under] 28 U.S.C. § 2241, not under 28 U.S.C. § 2255 whose terms cover challenges to sentences as imposed” (citations omitted)).
A petition brought under 28 U.S.C. § 2241 must be filed in the district in which the petitioner is imprisoned. Rumsfeld v. Padilla, 542 U.S. 426, 447, 124 S.Ct. 2711, 159 L.Ed.2d 513 (2004) (“Whenever a § 2241 habeas petitioner seeks to challenge his present physical custody within the United States, he should name his warden as respondent and file the petition in the district of confinement.” (citations omitted)); Burkey v. Marberry, 556 F.3d 142, 146 (3d Cir.2009) (noting that the petitioner, who challenged the BOP’s determination that he was ineligible for early release, had “appropriately filed his habeas corpus petition in the district of confinement”); Yi v. Maugans, 24 F.3d 500, 503 (3d Cir.1994) (“A district court’s habeas corpus jurisdiction is territorially limited and extends only to persons detained and custodial officials acting within the boundaries of that district.” (citations omitted)).
At the time Figueroa filed his motion in the District Court, he was imprisoned at a facility in Minersville, Pennsylvania, which is located within the territorial limits of the Middle District of Pennsylvania.5 Therefore, Figueroa was required to file a petition under 28 U.S.C. § 2241 in the United States District Court for the Middle District of Pennsylvania. The United States District Court for the Eastern District of Pennsylvania lacked jurisdiction to consider his motion. Accordingly, we will vacate the District Court’s order and remand this case to the District Court with instructions to dismiss it without prejudice, unless the District Court finds that a transfer under 28 U.S.C. § 1631 is appropriate under the circumstances.6
III.
For the foregoing reasons, we will vacate the District Court’s order and remand this case to the District Court for further proceedings consistent with this opinion.7
. Figueroa completed that sentence in January 2004.
. Specifically, Figueroa was indicted for conspiracy to affect commerce by robbery in vio*729lation of 18 U.S.C. § 1951(a); interference with commerce by robbery in violation of 18 U.S.C. § 1951(a); using and carrying a firearm during the commission of a violent crime in violation of 18 U.S.C. § 924(c)(1)(A)(ii); and possession of a firearm by a convicted felon in violation of 18 U.S.C. § 922(g)(1).
. The Pennsylvania authorities apparently dropped the charges against Figueroa arising out of the home invasion robbery in light of the federal charges against him.
. We have jurisdiction to review the District Court’s order under 28 U.S.C. § 1291.
. We have taken judicial notice of Miners-ville's location within the territorial limits of the Middle District of Pennsylvania. See generally Boyce Motor Lines v. United States, 342 U.S. 337, 344, 72 S.Ct. 329, 96 L.Ed. 367 (1952) (Jackson, J., dissenting) (acknowledging a court’s authority to "take judicial notice of geography”). We note as well that the BOP's website states that the Federal Correctional Institution — Schuylkill is located in the Middle District of Pennsylvania. See http://www.bop.gov/locations/institutions/sch/ index.jsp (last visited Sept. 18, 2009).
. The caption of Figueroa’s motion before the District Court indicates that he also sought to correct his sentence. Federal Rule of Criminal Procedure 35(a) provides: "Within 7 days after sentencing, the court may correct a sentence that resulted from arithmetical, technical, or other clear error." Fed.R.Crim.P. 35(a). Rule 35(a)'s time limitation is jurisdictional. United States v. Washington, 549 F.3d 905, 915-16 (3d Cir.2008). Because Figueroa’s motion was filed well beyond that limitation, the District Court also lacked jurisdiction to consider it to the extent Figueroa sought relief under that rule.
.Given this disposition, we do not reach the merits of Figueroa's motion.
|
01-04-2023
|
11-05-2022
|
https://www.courtlistener.com/api/rest/v3/opinions/8473435/
|
OPINION OF THE COURT
FUENTES, Circuit Judge:
Debtor-Appellant Victor Mondelli appeals the decision of the District Court to affirm two orders entered by the Bankruptcy Court: one that enforced a mortgage and lease. specifically agreed to by Mondelli; and another that denied a subsequent motion for reconsideration. For the reasons that follow, we will affirm the District Court’s order dismissing Mondel-li’s appeal from the Bankruptcy Court.
I.
Because we write exclusively for the parties, we only discuss the facts and proceedings to the extent necessary for the resolution of this case.
In May 2007, the Bankruptcy Court approved a plan whereby Mondelli would satisfy a significant portion of his outstanding debts by mortgaging property he owned in Berkeley Heights, New Jersey. Mondelli obtained the loan from Jack Sil-verman Realty & Mortgage Co. (“JSRM”) and used the loan proceeds to pay his creditors. Atypieally, the mortgage agreement with JSRM was accompanied by a ninety-nine year ground lease to another company, Berkeley Realty Partners (“BRP”). The lease expressly states that the lease’s existence was a condition precedent to JSRM’s grant of the mortgage— JSRM and BRP share some overlapping ownership interests, and the mortgage from JSRM and the lease to BRP were clearly part of a package deal.
*732The lease to BRP contains several provisions relevant to this appeal. First, the lease gives BRP a right of first refusal if and when Mondelli decides to sell the property. Second, the lease contains a “subordination” provision, which requires Mondelli to subordinate his interest in the property to any subsequent mortgage entered into by BRP for the purpose of “construction and permanent financing” of the lease. Third, pursuant to the lease, BRP is required to pay property taxes and purchase insurance for the property.
The present dispute arose when BRP attempted to obtain a mortgage on the property, invoking the provision of the lease requiring Mondelli to subordinate his interest. Mondelli objected and refused to execute the necessary paperwork. BRP and JSRM then filed a motion with the Bankruptcy Court to enforce the relevant lease provisions consented to by Mondelli. During the hearing on the motion, Mondel-li noted that BRP had fallen behind on its property tax obligations, thus endangering Mondelli’s interest in the land. Over Mon-delli’s objections, the Bankruptcy Court granted the motion, noting that Mondelli had agreed to the subordination and characterized Mondelli’s resistance as something akin to buyer’s remorse.
Shortly thereafter, Mondelli filed a motion for reconsideration of the decision enforcing the lease provisions. In this motion, Mondelli supplemented his claim about the unpaid taxes by arguing that (1) BRP’s right of first refusal constituted a clog on Mondelli’s equitable right of redemption; (2) BRP could not request subordination without evidence that the mortgage was for development of the property; (3) BRP had breached the lease by subleasing a portion of the property; and (4) the Bankruptcy Judge should have recused himself for bias. The Bankruptcy Court rejected all of these arguments and dismissed the motion for reconsideration.1 Mondelli then appealed to the District Court, presenting the same arguments he raised in his earlier submissions. The District Court affirmed, agreeing with the Bankruptcy Court on the merits of Mon-delli’s appeal, but also noting that Mondelli had defaulted on his obligation under the Federal Rules of Bankruptcy Procedure to provide the District Court with a complete appellate record.
II.
Pursuant to Federal Rule of Bankruptcy Procedure 8006, “[wjithin 10 days after filing [a] notice of appeal ..., [an] appellant shall file with the clerk and serve on the appellee a designation of the items to be included in the record on appeal and a statement of the issues to be presented.” Fed. R. Bank. Proc. 8006. As noted by the District Court, Mondelli filed his notice of appeal on February 4, 2008, but did not file his designation of the items to be included in the record until April 2, 2008, well past the ten-day filing limit. Such a violation may constitute a basis for dismissal of the appeal. See Fed. R. Bank. Proc. 8001(a) (“An appellant’s failure to take any step other than timely filing a notice of appeal does not affect the validity of the appeal, but is ground only for such action as the district court or bankruptcy appellate panel deems appropriate, which may include dismissal of the appeal.”). Before dismissing Mondelli’s appeal for this procedural violation, however, the Dis*733trict Court appropriately analyzed Mondel-li’s violation in reference to the factors laid out in Poulis v. State Farm Fire and Casualty Co., 747 F.2d 863 (3d Cir.1984).
(1) the extent of the party’s personal responsibility; (2) the prejudice to the adversary caused by the failure to meet scheduling orders and respond to discovery; (3) a history of dilatoriness; (4) whether the conduct of the party or the attorney was willful or in bad faith; (5) the effectiveness of sanctions other than dismissal, which entails an analysis of alternative sanctions; and (6) the meritoriousness of the claim or defense.
Id. at 868. The District Court addressed each factor and found, in the aggregate, that dismissal for failure to meet the requirements of Rule 8006 was warranted.
We have reviewed the District Court’s application of the Poulis factors, and we see no abuse of discretion. See Emerson v. Thiel College, 296 F.3d 184, 191 (3d Cir.2002) (noting standard of review). In terms of the merits of Mondelli’s arguments, we affirm for the thorough and persuasive reasons noted in the District Court’s opinion. In particular, we echo the District Court’s analysis of the alleged clogs to Mondelli’s equitable right of redemption — a contention that Mondelli prioritizes in his briefing. We do not see how BRP’s right of first refusal in the event that Mondelli chooses to sell the property in any way compares to the sort of unconditional right to purchase held by the mortgagee in Humble Oil & Refining Co. v. Doerr, 123 N.J.Super. 530, 303 A.2d 898 (N.J.Super.Ct. Ch. Div.1973). Quite simply, BRP’s right to repurchase would not affect Mondelli’s ability to redeem his mortgage — it would only affect his efforts to sell the property to a third party. And, as noted by the District Court, even if the right of first refusal did clog the equitable right of redemption, the remedy would be to render the provision unenforceable, not to invalidate the entire lease. Id. at 565, 303 A.2d 898. We also reject the argument that the mere presence of the subordination clause somehow clogs the equitable right of redemption. While the subordination clause might affect Mondelli’s ability to obtain other financing at a favorable rate, the clause does not in any way prevent him from actually redeeming his mortgage, and thus cannot be considered a clog to that essential right.
In regard to the non-merits factors, we see no clear error in the District Court’s factual determination that Mondelli was not personally responsible for the procedural violation; that BRP was somewhat prejudiced by the delay; that Mondelli has a history of dilatoriness; and that alternate sanctions, such as financial penalties, would be ineffective given Mondelli’s bankruptcy. Accordingly, we agree with the District Court’s analysis and balancing of the Poulis factors, and will affirm its dismissal of Mondelli’s appeal.
. As noted by the District Court, the Bankruptcy Court did not clearly address Mondel-li's second argument — that subordination was dependent on evidence of development — perhaps because it did not understand Mondelli to be actually arguing that point. Regardless, the District Court did address the issue in its Opinion, and we will review that determination for abuse of discretion.
|
01-04-2023
|
11-05-2022
|
https://www.courtlistener.com/api/rest/v3/opinions/8473438/
|
OPINION
McKEE, Circuit Judge.
Emmanuel Herrera pled guilty to one count of conspiracy to import 100 grams or more of heroin, in violation of 21 U.S.C. § 963, and was sentenced to 60 months imprisonment pursuant to 21 U.S.C. § 960(b)(2)(A), as well as a term of supervised release for five years, and ordered to pay a fine of $2,500, and a special assessment of $100. He argues the sentencing court erred in concluding that he was a “supervisor” pursuant to U.S.S.G. § 5C1.2, and that the court violated the Fifth and Sixth Amendments by making a finding of fact that increased his sentence. For the reasons that follow, we will affirm.
I.
As we write primarily for the parties who are familiar with the facts of this case, we need not recite the factual or procedural history in detail. We exercise plenary *738review over a district court’s interpretation of sentencing guidelines and examine a district court’s factual findings for clear error. See United States v. Grier, 475 F.3d 556, 570 (3d Cir.2007).
II.
The district court increased Herrera’s Offense Level by two points pursuant to U.S.S.G. § 3B1.1(c) based on its finding that he played a leadership role in the criminal activity underlying his plea. Section 3B1.1(c) directs district courts to increase a defendant’s offense level by two levels where the defendant was “an organizer, leader, manager, or supervisor in any criminal activity” involving less than five participants. U.S.S.G. § 3B1.1(c).
On appeal, Herrera contends that the record does not support a finding that he was an organizer or supervisor of criminal activity, and that increasing his sentence based on that finding denied him due process and the right to a jury trial. Neither argument has merit.
Herrera admitted at to recruiting and directing two other co-conspirators “to fly to the Dominican Republic and then smuggle drugs back into the United States.” A.R. 24. He stipulated to the Pre-Sentence Report which shows that he and another co-conspirator agreed to pay those two co-conspirators (who were under his direction) $100 for every pellet of heroin smuggled into the U.S. It is therefore clear that the district court correctly concluded that Herrera was a supervisor for purposes of sentencing and that the court correctly increased his base offense level pursuant to U.S.S.G. § 3Bl.l(c).
III.
Herrera’s attempt to fashion a constitutional deprivation from the court’s fact finding and corresponding increase in sentence also fails. The argument is based on Herrera’s contention that the conclusion that he was a manager or supervisor of criminal activity had to be proven to a jury beyond a reasonable doubt pursuant to United States v. Booker, 543 U.S. 220, 125 S.Ct. 738, 160 L.Ed.2d 621 (2005). However, the resulting increase in sentence was well within the statutory maximum for the offenses he pled guilty to. Accordingly, Booker does not apply. See United States v. Grier, 475 F.3d 556, 561 (3d Cir.2007) (en banc).
IV.
For all the reasons set forth above, we will affirm the judgement of conviction.
|
01-04-2023
|
11-05-2022
|
https://www.courtlistener.com/api/rest/v3/opinions/8473443/
|
OPINION
PER CURIAM.
Monroe Merritt appeals pro se from the District Court’s order dismissing his complaint and denying his motions for leave to amend. For the following reasons, we will vacate the District Court’s judgment and remand for further proceedings.
I.
Merritt is a Pennsylvania state prisoner serving a sentence of life imprisonment. In 2007, he filed suit pro se against various medical professionals and Department of Corrections employees under 42 U.S.C. § 1983, asserting an Eighth Amendment claim that they have been deliberately indifferent to his medical needs. He also asserted a claim for medical malpractice under state law. We take the following factual allegations as true for purposes of this appeal. See Ashcroft v. Iqbal, — U.S. —, 129 S.Ct. 1937, 1949, 173 L.Ed.2d 868 (2009).
Merritt has the Hepatitis C virus (“HCV”) and has tried repeatedly for many years to obtain treatment but has been refused. Merritt alleges that he began seeking a combined drug treatment for HCV with Interferon and Ribavirin in 1998. In 2000, a physician’s assistant initially told him that he had to complete drug and alcohol therapy before receiving the treatment. Merritt completed the therapy in 2001 and again requested treatment. Defendants Fairman and Howard-Diggs (both physician’s assistants), however, told him that his white blood cell count was too low to receive treatment. Merritt *744alleges he was ultimately approved for the treatment in 2003 (by a psychiatrist), but does not allege why the treatment was never begun.
In 2005, Merritt’s liver condition began to deteriorate, which he attributes to medication he was prescribed after a tooth extraction. Merritt again began seeking treatment. In 2007, defendant Falor (a physician) told Merritt that his liver function test numbers were “all out of wack,” but denied treatment and told Merritt to “pray.” Merritt was referred to defendant Jin (another physician), but he too denied treatment. Merritt alleges that Jin refused to consider the effect of the medication he had been taking on his liver. He also alleges that, while he was reviewing his medical records, he overhead a physician’s assistant tell a technician that he had “shredded all of plaintiffs sick call requests.”
Shortly thereafter, he again requested treatment, but defendant Howard-Diggs told him that he had not qualified for treatment under the Department of Corrections HCV treatment protocol for the past two and one-half years because he had turned 50 years of age. He alleges that he finally obtained a copy of that protocol and learned that his white blood cell count had in fact been within the protocol range for treatment in 2001 and that the protocol contemplates treatment until the age of 60, not 50 as Howard-Diggs had told him. After filing multiple grievances, he filed the instant suit, seeking both an injunction requiring defendants to provide him with HCV treatment and monetary damages. He filed along with his complaint a motion for the appointment of counsel, which a Magistrate Judge denied. Merritt timely appealed that ruling to the District Court, but the District Court never ruled on his appeal.
The defendants filed motions to dismiss Merritt’s complaint under Rule 12(b)(6). Merritt thereafter filed a motion for leave to amend his complaint, a second motion for leave to amend his complaint, and several “addenda” in support of his motions to amend. By these filings, he sought to include the following additional allegations. In 2004, medical staff denied him treatment on the grounds that his “ALT and AST values” were normal and told him that he could not receive treatment until those values were at least three times normal, though normal ALT and AST values are not exclusionary criteria for treatment under the protocol. Then, in 2005, he received a liver biopsy, which revealed that his ALT and AST values were over six and one-half and five and one-half times normal, respectively, but that he was still refused treatment.
Merritt further alleges that, in 2007, defendant Falor, the physician defendant who had told him to “pray” after denying him treatment, also told him “that whenever the SCI Greene medical staff met for their staff meetings, and the question of what they are going to do about inmates with Hepatitis C comes up, SCI Greene medical staff members just shrug their shoulders, indicating nothing.” He also alleges that, during that same year, defendant Jin reviewed his most recent liver test and told him that “it looks bad” but that “I will not be treated.” Finally, he alleges that he obtained from defendants in discovery a 1996 letter from a Dr. Frederick Ruthardt, whom he characterizes as “defendants’ own specialist,” stating that Merritt “would be an excellent candidate for therapy with alpha interferon” and “would benefit from the treatment.” Merritt alleges that defendants’ refusal to provide treatment has caused his liver condition to deteriorate and may lead to his death.
The Magistrate Judge issued a Report and Recommendation recommending that *745the District Court dismiss Merritt’s Eighth Amendment claim for failure to state a claim and his malpractice claim for failure to comply with Pennsylvania’s certificate of merit requirement. He also recommended denying Merritt’s motions to amend on the grounds that amendment would be futile. The District Court followed that recommendation by order entered August 1, 2008, 2008 WL 2967528. Merritt appeals.
II.
We have jurisdiction pursuant to 28 U.S.C. § 1291. On appeal, Merritt challenges the dismissal of his complaint and the denial of his motions for leave to amend. We review the first of those rulings de novo, see Phillips v. County of Allegheny, 515 F.3d 224, 230 (3d Cir.2008), and the second for abuse of discretion, see Singletary v. Pa. Dep’t of Corr., 266 F.3d 186, 193 (3d Cir.2001).1
We begin by addressing a procedural wrinkle identified by neither the parties nor the District Court. After Merritt filed his initial complaint and defendants filed their motions to dismiss, Merritt filed his first motion “for leave” to file an amended complaint. Merritt, however, was entitled to file that amended complaint as of right. Defendants’ motions to dismiss were not “pleadings,” see Fed. R.Civ.P. 7(a), so Merritt remained entitled to amend his complaint once as a matter of course, see Fed.R.Civ.P. 15(a)(1). Thus, the District Court should have construed Merritt’s initial motion, to which his amended complaint was attached, as the filing of that amended complaint. That filing would have rendered moot defendants’ motions to dismiss. See Pure Country, Inc. v. Sigma Chi Fraternity, 312 F.3d 952, 956 (8th Cir.2002). Technically speaking, then, there were no motions to dismiss properly pending when the District Court dismissed Merritt’s complaint.
In any event, we believe that the District Court’s dismissal of Merritt’s complaint and denial of leave to amend were erroneous on the merits, and we address those issues in tandem under the posture presented here. “To survive a motion to dismiss, a complaint must contain sufficient factual matter, accepted as true, to ‘state a claim for relief that is plausible on its face.’ A claim has facial plausibility when the plaintiff pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged.’” Iqbal, 129 S.Ct. at 1949 (quoting Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 570, 127 S.Ct. 1955, 167 L.Ed.2d 929 (2007)). Complaints filed pro se, like Merritt’s, must be liberally construed. See Erickson v. Pardus, 551 U.S. 89, 93-96, 127 S.Ct. 2197, 2200, 167 L.Ed.2d 1081 (2007). Before dismissing a complaint, “a district court must permit a curative amendment unless such an amendment would be inequitable or futile.” Phillips, 515 F.3d at 245.
In this case, Merritt’s Eighth Amendment claim required him to allege that the defendants (1) were deliberately indifferent to (2) his serious medical needs. See Spruill v. Gillis, 372 F.3d 218, 235 (3d Cir.2004). There is no dispute that HCV constitutes a serious medical need. Instead, the District Court dismissed this claim and denied leave to amend on the grounds that Merritt had not adequately *746alleged that defendants were deliberately indifferent to that need. “We have found ‘deliberate indifference’ in a variety of circumstances, including where a prison official (1) knows of a prisoner’s need for medical treatment but intentionally refuses to provide it; (2) delays necessary medical treatment based on a non-medical reason; or (3) prevents a prisoner from receiving needed or recommended medical treatment.” Rouse v. Plantier, 182 F.3d 192, 197 (3d Cir.1999). Deliberate indifference, however, requires more than mere malpractice or disagreement with a particular course of treatment. See Spruill, 372 F.3d at 235.
The Magistrate Judge thought Merritt’s claim deficient as a matter of law because his own allegations show that defendants have repeatedly monitored and tested him and have determined that he does not qualify for HCV treatment. In reaching that conclusion, the Magistrate Judge relied primarily on responses by certain defendants and others to Merritt’s grievances that he attached to his initial complaint. As the Magistrate Judge noted, those responses indicate that Merritt has been tested and that certain defendants and others have concluded that he is not a candidate for combined drug treatment for various reasons.2 Thus, the Magistrate Judge reasoned that Merritt’s allegations show that he merely disagrees with defendants’ medical judgment and insists on the treatment of his choice.
If that were all that Merritt alleged, then the Magistrate Judge would be right. Merritt, however, makes many other specific factual allegations that the Magistrate Judge did not discuss and that, taken as true as they must be at this stage, raise an inference of deliberate indifference. For example, Merritt alleges that one of defendants’ own specialists recommended him for treatment as long ago as 1996 but that defendants fraudulently concealed that information from him until he finally filed suit. He also alleges that he is within the protocol for treatment, though various defendants have falsely told him otherwise. Thus, as Merritt argues, he claims to seek, not merely the treatment of his own choice, but treatment that has been recommended by a specialist and that is called for by the Department of Corrections protocol.
Moreover, his allegations permit the inference that defendants may have nonmedical reasons for refusing to provide this treatment. For example, he alleges that defendant Falor told him both that medical staff merely “shrug their shoulders, indicating nothing” when the subject of HCV treatment arises at staff meetings and that Merritt would not receive treatment though his liver numbers were “all out of wack” and that he should instead “pray.” He also alleges that he overheard a physician’s assistant admit to having shredded his sick call requests. Finally, he alleges that has been denied treatment for at least five different reasons over the years, most of which he alleges were fabricated.
Taken together, and in light of Merritt’s pro se status, we believe that these specific factual allegations permit the inference that at least some defendants have acted with deliberate indifference to Merritt’s medical needs. Thus, for pleading purposes, Merritt’s factual allegations have “ ‘nudged his claim ... across the line from conceivable to plausible.’ ” Iqbal, 129 *747S.Ct. at 1951 (quoting Twombly, 550 U.S. at 570, 127 S.Ct. 1955). For that reason, the District Court should not have dismissed Merritt’s complaint without leave to amend and should not have denied his motions for leave to amend as futile. Accordingly, we will vacate the dismissal of Merritt’s complaint and remand with an instruction to allow him to file an amended complaint.3
Merritt also challenges the Magistrate Judge’s order denying his motion for the appointment of counsel. Merritt timely appealed that order to the District Court, but the District Court never addressed it. Because the Federal Magistrate Judges Act contemplates a first level of review in the District Court, see 28 U.S.C. § 636(b)(1)(A), we will not reach that issue in the first instance. Instead, Merritt’s appeal to the District Court will remain pending on remand. Although we do not address the merits of the Magistrate Judge’s ruling, we observe that the potential merit and medical complexity of Merritt’s claims may warrant the appointment of counsel in the District Court. See Montgomery v. Pinchak, 294 F.3d 492, 501-06 (3d Cir.2002) (holding that District Court abused its discretion in refusing to appoint counsel for prisoner asserting potentially-meritorious claim of deliberate indifference to medical needs); Parham v. Johnson, 126 F.3d 454, 458-461 (3d Cir.1997) (same).4
. Merritt also challenges the District Court’s (1) denial of his motion for counsel, (2) denial of a motion for discovery he sought to respond to defendants’ motions to dismiss, and (3) application of Pennsylvania’s certificate of merit requirement. In light of our disposition and the posture of this case, we do not reach these issues, though we briefly discuss the issue of counsel below.
. The responses state that Merritt is not a candidate for treatment because he is "asymptomatic,” his biopsy showed "grade 1 inflamation and no fibrosis,” and because his lab tests have shown improvement in his liver condition. Merritt, however, alleges that his liver condition continues to deteriorate. The Magistrate Judge properly did not purport to resolve that factual issue at the pleading stage.
. Defendants moved to dismiss Merritt's complaint on other grounds, including the statute of limitations and failure to exhaust his claims against one defendant. The District Court did not address those arguments, and we will not do so in the first instance on the record presented here.
. As the Department of Corrections defendants note in their brief, we previously denied Merritt's motion for the appointment of counsel in this Court. Although it should go without saying, many of the considerations relevant to the appointment of counsel in a trial court are not relevant to the appointment of counsel in an appellate court. See Montgomery, 294 F.3d at 498-99.
|
01-04-2023
|
11-05-2022
|
https://www.courtlistener.com/api/rest/v3/opinions/8473449/
|
OPINION OF THE COURT
ALDISERT, Circuit Judge.
Appellant David Connolly appeals from an order of the District Court for the District of New Jersey imposing a sentence of 100 months’ imprisonment after a jury found him guilty of being a felon in possession of a firearm. Connolly contends that the District Court’s refusal to suppress evidence of a firearm in Connolly’s possession was reversible error because the investigating officers did not possess the requisite reasonable suspicion to justify a Terry frisk. He further contends that the District Court committed reversible error in denying Connolly a downward adjustment in offense level under United States Sentencing Guidelines § 3E1.1 for acceptance of responsibility. *756We reject both contentions and affirm the judgment of the District Court.1
I.
Because we write only for the parties we will discuss only the relevant legal precepts and only those facts relating thereto.
On May 1, 2007, Detectives Hector Rodriguez (“Detective Rodriguez”) and Gerardo Rodriguez were patrolling an area of Newark, New Jersey that had been recently plagued by purse-snatchings. The detectives became suspicious after observing Connolly attempt to speak to two women who appeared inhospitable to his advances. The detectives believed, based on their collective experience, that this was behavior characteristic of purse-snatching. Detective Rodriguez subsequently approached Connolly and identified himself as a police officer. Connolly appeared visibly nervous to Detective Rodriguez and almost immediately placed his hands in his pockets. The detective asked Connolly to remove his hands from his pockets and when Connolly did not comply, the detective ordered him to do so. When Connolly again failed to comply, Detective Rodriguez performed a frisk, which produced a fully loaded .38-caliber handgun concealed in Connolly’s waistband. On July 9, 2007, a grand jury returned an indictment charging Connolly with one count of possession of a firearm by a convicted felon in violation of 18 U.S.C. § 922(g)(1).
After pleading not guilty, Connolly filed a motion to suppress on October 24, 2007. The District Court held a hearing at which both arresting officers were examined at length. Detective Rodriguez testified that “[ajfter he refused a second time, now I felt that I needed to pat him down because there’s a reason why he’s not removing his hands from his pockets, so I approached him.” (App.31.) The Court ultimately denied the motion in February 2008. Connolly’s two-day trial commenced on March 11, 2008 and a jury found him guilty of being a felon in possession of a handgun on March 12, 2008. The District Court sentenced Connolly to 100 months’ imprisonment with three years’ supervised release, denying him a downward adjustment for acceptance of responsibility under U.S. Sentencing Guidelines § 3E1.1. Connolly filed a timely notice of appeal on July 28, 2008.
II.
In considering a motion to suppress, we review the District Court’s factual findings for clear error, and we exercise plenary review over its application of the law to those facts. United States v. Mathurin, 561 F.3d 170, 173 (3d Cir.2009).
Police may make a brief investigatory stop for reasonable suspicion of criminal activity. Terry v. Ohio, 392 U.S. 1, 30, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968). Such a detained person may be frisked for weapons if the police have a reasonable belief that the person is armed and dangerous. Id. at 27, 88 S.Ct. 1868. We must first inquire whether the detectives had the “minimal level of objective justification” for a Terry stop. United States v. Sokolow, 490 U.S. 1, 2, 109 S.Ct. 1581, 104 L.Ed.2d 1 (1989). This requires “something more than an inchoate and unpartic-ularized suspicion.” Id. Police officers may “draw on their own experience and specialized training to make inferences from and deductions about the cumulative information,” but must act on more than “a mere ‘hunch’ ” to meet the requirements of reasonable suspicion. United States v. Arvizu, 534 U.S. 266, 274, 122 S.Ct. 744, 151 L.Ed.2d 740 (2002) (quoting Terry, 392 U.S. at 27, 88 S.Ct. 1868). We have observed that the test is one of “reasonable*757ness given the totality of circumstances,” which can include location, history of crime in the area, a suspect’s nervous behavior and evasiveness and police officers’ “common sense judgments and inferences about behavior.” Johnson v. Campbell, 332 F.3d 199, 206 (3d Cir.2003) (quoting Illinois v. Wardlow, 528 U.S. 119, 124-125, 120 S.Ct. 673, 145 L.Ed.2d 570 (2000)). In reviewing a subsequent Terry frisk for reasonable suspicion, “the issue is whether a reasonably prudent man in the circumstances would be warranted in the belief that his safety or that of others was in danger.” Terry, 392 U.S. at 27, 88 S.Ct. 1868.
Connolly contends that the initial stop was impermissible because the detectives were unable to articulate a chain of inferences that led logically to their belief that Connolly was engaging in criminal activity. To the contrary, the officers were on patrol in an area that had been the site of recent purse-snatchings. They observed Connolly approach not one, but two women, who apparently rebuffed his advances. In the officers’ experience, this behavior was consistent with the preliminary stages of purse-snatching. Under the totality of the circumstances, the initial Terry stop was permissible.
Connolly next contends that the District Court erred in admitting the handgun found during the Terry frisk because the officers did not possess a reasonable and particularized suspicion that he was armed and dangerous. We disagree, on our reading of the record, the District Court properly concluded that the detectives had a sufficiently particularized and objective suspicion that Connolly might be armed and dangerous. When approached, Connolly appeared nervous and evasive. After Detective Rodriguez identified himself as a police officer, Connolly immediately placed his hands in his pockets and refused both a request and a direct order to remove them. We conclude that from this sequence of events, the attendant circumstances, and their combined 30 years of experience, the police officers could reasonably suspect that Connolly might be armed and dangerous. Under the totality of the circumstances, the Terry frisk was permissible. The District Court did not err in denying Connolly’s motion to suppress the handgun.
III.
This Court reviews for clear error the factual findings underlying a sentencing court’s denial of a Sentencing Guidelines reduction for acceptance of responsibility. United States v. Lessner, 498 F.3d 185, 199 (3d Cir.2007). We reverse only if we are “left with a definite and firm conviction that a mistake has been committed.” Id. “The sentencing judge is in a unique position to evaluate a defendant’s acceptance of responsibility. For this reason, the determination of the sentencing judge is entitled to great deference on review.” U.S. Sentencing Guidelines § 3E1.1 cmt. n. 5.
Section 3E1.1(a) of the Guidelines provides that a sentencing court may grant a two-level reduction in offense level if the defendant has clearly demonstrated acceptance of responsibility. The reduction contemplates a defendant “truthfully admitting the conduct comprising the offense(s) of conviction, and truthfully admitting or not falsely denying any additional relevant conduct for which the defendant is aecountable[.]” U.S. Sentencing Guidelines § 3E1.1 cmt. n. 1(a); see Lessner, 498 F.3d at 199. Although this downward adjustment does not generally apply to defendants who go to trial, the Guidelines expressly recognize exceptions to this general rule, such as when defendants go to trial to preserve constitutional issues.2
*758Connolly contends that because the government did not permit him to take a conditional plea, he was forced to go to trial to preserve his Fourth Amendment objection. Additionally, he argues that he made no pretrial statements denying possession of the gun and that this militates in favor of a finding of acceptance of responsibility. The District Court found that Connolly did not demonstrate acceptance of responsibility because: Connolly did not waive his right to a jury; he subpoenaed witnesses lacking knowledge of relevant events; he refused to stipulate to certain non-controversial elements of the crime; and he vigorously attacked the credibility of the testifying officers, even suggesting that their testimony was false. The District Court assessed the “totality of the situation” and determined that Connolly did not accept responsibility. United States v. McDowell, 888 F.2d 285, 293 n. 2 (3d Cir.1989). The District Court is in the unique position to best gauge the defendant’s acceptance of responsibility or lack thereof and as such we accord great deference. We cannot say that the record before us leaves us with “a definite and firm conviction that a mistake has been committed.” Lessner, 498 F.3d at 199.
* * * * * *
We have considered all the contentions presented by the appellant and conclude that no further discussion is necessary.
The judgment of the District Court will be affirmed.
. The District Court had subject matter jurisdiction pursuant to 18 U.S.C. § 3231. We have jurisdiction pursuant to 18 U.S.C. § 3742(a)(1) and 28 U.S.C. § 1291.
. The Sentencing Guidelines provide:
This adjustment is not intended to apply *758to a defendant who puts the government to its burden of proof at trial by denying the essential factual elements of guilt, is convicted, and only then admits guilt and expresses remorse. Conviction by trial, however, does not automatically preclude a defendant from consideration for such a reduction. In rare situations a defendant may clearly demonstrate an acceptance of responsibility for his criminal conduct even though he exercises his constitutional right to a trial. This may occur, for example, where a defendant goes to trial to assert and preserve issues that do not relate to factual guilt (e.g., to make a constitutional challenge to a statute or a challenge to the applicability of a statute to his conduct). In each such instance, however, a determination that a defendant has accepted responsibility will be based primarily upon pre-trial statements and conduct.
U.S. Sentencing Guidelines § 3E1.1 cmt. n. 2.
|
01-04-2023
|
11-05-2022
|
https://www.courtlistener.com/api/rest/v3/opinions/8473451/
|
*760OPINION OF THE COURT
ALDISERT, Circuit Judge.
Defendant Bobcat Company1 appeals from a judgment entered by the District Court for the Western District of Pennsylvania on a jury verdict finding Bobcat fully liable for injuries sustained by Thomas Altman in an accident involving a Bobcat Model 709 backhoe attachment. Following a seven-day trial, the jury found Bobcat’s negligence to be the sole cause of Altman’s injuries and awarded $2,991,337.00 in damages to Plaintiffs Thomas and Roxana Altman. The District Court denied Bobcat’s motion for a new trial, and this appeal followed.
Bobcat urges this Court to reverse the judgment below and order a new trial, contending that: (1) the District Court should have ordered a mistrial because Juror 73’s trial misconduct substantially prejudiced Bobcat; (2) the Court committed prejudicial error when it permitted the jury to view a computer animation depicting the Model 709 backhoe attachment and feasible alternative designs; and (3) the Court committed prejudicial error when it permitted the Altmans to cross-examine a key Bobcat witness using an “unrelated” case from the Washington Court of Appeals. We have considered each of these contentions and will affirm the decision of the District Court.2
I.
Because the parties are familiar with the facts and proceedings in the District Court, we will recite them only as necessary to the discussion.
Thomas Altman, a hazard responder for First Energy, was working with a First Energy crew to locate and repair damaged underground electrical wires. Altman’s coworker, Gregory Muscarella, was operating a Bobcat Model 863G skid-steer loader with a Bobcat Model 709 backhoe attachment. While Altman was standing in the swing zone of the backhoe attachment, Muscarella inadvertently activated the backhoe’s control lever with his knee. The backhoe’s bucket rotated 180 degrees to the right and struck Altman in the head, causing irreversible brain damage.
Mr. and Mrs. Altman sued Bobcat and went to trial on two theories of liability— negligent design and negligent failure to warn. Specifically, the Altmans alleged that Bobcat negligently designed the backhoe’s operator compartment by placing an unguarded operational control lever at knee height and in such close quarters that inadvertent activation was inevitable. The Altmans also alleged that Bobcat negligently failed to warn operators that the backhoe’s bucket and swing arm could pivot even after the operator released the hand controls to stop operation. On April 7, 2008, the jury found Bobcat’s negligence to be the sole cause of the Altmans’ injuries and returned a $2,991,337.00 verdict in their favor. Final judgment was entered on April 8, 2008. On April 21, 2008, Bobcat filed a motion for a new trial, which was denied on July 14, 2008, 2008 WL 2779301. Bobcat timely appealed on July 18, 2008.
II.
Bobcat contends that the District Court should have declared a mistrial after learning that Juror 73 conducted independent research during the trial by sitting in the cab of what she believed to be a Bobcat machine. During deliberations, Juror 73 described her experience to other jurors and reported that the Bobcat’s operator compartment was “tight.” Almost imme*761diately, the jury foreperson notified Chief Judge Ambrose, who dismissed Juror 73 and conducted voir dire of the remaining jurors. After questioning each juror individually, the Judge “did not find any of the remaining jurors to be biased, prejudiced or unable to render an impartial verdict based on the statements of Juror 73.” (App.37.) Bobcat disagrees, and contends that we should order a new trial because Juror 73’s statements “substantially prejudiced Bobcat.” (App.20.)
“[E]very litigant who is entitled to trial by jury is entitled to an impartial jury, free to the furthest extent practicable from extraneous influences that may subvert the fact-finding process.” Waldorf v. Shuta, 3 F.3d 705, 709 (3d Cir.1993). When jurors obtain extrinsic information during jury deliberations, a new trial is warranted if the objecting party “likely suffered substantial prejudice as a result of the jury’s exposure to the extraneous information.” United States v. Lloyd, 269 F.3d 228, 238 (3d Cir.2001) (citation and quotation omitted). Nevertheless, a new trial is not required if the jury can remain impartial and unprejudiced and can confine its deliberations to the record evidence. Waldorf, 3 F.3d at 709. Thus, when “the trial court learns that [the jury] may have received extra-record information with a potential for substantial prejudice, [it] must determine whether the members of the jury have been prejudiced.” Gov’t of V.I. v. Dowling, 814 F.2d 134, 141 (3d Cir.1987). We have long expressed a preference for individual voir dire questioning of each potentially tainted juror. Id. at 137.
We accord “great deference to the trial judge’s wide discretion in using voir dire to determine the presence or absence of prejudice.” Id. Consequently, we employ an abuse-of-discretion standard to review both the District Court’s conduct of voir dire and its determination that the jurors had not been prejudiced. Waldorf, 3 F.3d at 710. Under our deferential review, a district court need not pursue any specific line of questioning on voir dire. Indeed, “any method is sufficient provided it is probative on the issue of impartiality.” Id. (citations omitted). This deferential standard places a heavy burden on Bobcat, which must demonstrate that the District Court abused its broad discretion in determining that the jurors would remain impartial.
We are satisfied that the District Court did not abuse its discretion in conducting voir dire or concluding that Juror 73’s misconduct would not prejudice the proceedings. After it learned of the misconduct, the Court immediately dismissed Juror 73 (App.366-368) and conducted voir dire of the remaining jurors (App.368-385). Consistent with Waldorf, the Court’s questions elicited testimony probative of the jurors’ impartiality. See Waldorf, 3 F.3d at 710. The jurors each testified that Juror 73’s statements would neither change nor influence then' opinions and that they could disregard completely Juror 73’s improper statements.3 Moreover, in light of the Court’s broad discretion to conduct voir dire using “any method” aimed at discovering prejudice, we have no criticism of the Court’s decision to permit counsel to probe the prejudice issue with their own questions. See id. On this record, we determine that the Court did not abuse its *762discretion in either its conduct of voir dire or its conclusion that the jurors had not been prejudiced.
Contrary to Bobcat’s contention, the Court’s voir dire of the jury foreperson (Juror 6) did not suggest that one or more jurors feared that Juror 73’s comments would undermine their impartiality. Bobcat reads Chief Judge Ambrose’s colloquy with Juror 6 to suggest that one juror subjectively believed that she had been prejudiced by Juror 73’s statements:
JUROR NO. 6: It was right at that one point [during Juror 73’s explanation of Juror 73’s encounter with a Bobcat machine] where one of the other jurors said she felt that was inappropriate, given the boundaries that we were given, and not to discuss any of the particulars of the case, and felt that this was something that might have swayed her opinion one way or another and asked for me to bring it forward to the Judge.
(App. 368 (emphasis added).) Absent the benefit of subsequent clarification, we might agree. Unfortunately for Bobcat, Juror 6 immediately clarified that no member of the jury panel indicated to Juror 6 that Juror 73’s statements would sway his or her opinion. (App.369-370.) We omit the relevant excerpts, but we have reviewed the transcript and uncover no evidence of subjective prejudice. (App.368-372.) We observe also that no juror’s voir dire statement corroborates Bobcat’s subjective prejudice theory, confirming our view that this theory lacks merit.
We are unpersuaded by Bobcat’s remaining arguments and dismiss them with little elaboration. Bobcat urges that we should presume prejudice in cases involving juror experiments. We disagree, and note that this Court has declined to adopt such a presumption in cases like this, where circumstances are not “sufficiently aggravated.” Waldorf, 3 F.3d at 711 n. 6.
Bobcat additionally contends that the District Court should have determined that Juror 73’s statements were so fundamentally prejudicial that the jurors could not, as an objective matter, disregard them. We disagree. We have held that “absen[t] ... an examination designed to elicit answers which provide an objective basis for the court’s evaluation, merely ... obtaining [jurors’] assurances of impartiality is insufficient to test that impartiality.” Id. at 712 (citation and quotation omitted). Contrary to Bobcat’s contention, the District Court’s prejudice inquiry did not rely on the jurors’ bare and subjective assurances of their own impartiality. The judge asked each juror what she heard Juror 73 say, whether any other juror was exposed to the extraneous information and whether each juror subjectively believed she could disregard the remarks. (App.346-383.) The judge listened to the jurors’ responses, observed their demeanors and determined that each would remain impartial. We believe the Court’s questions afforded an objective basis for its evaluation of prejudice and recognize that the District Court was in a superior position to assess the prejudicial effects of Juror 73’s misconduct.4 We determine that Chief Judge *763Ambrose acted well within her discretion, and we will defer to her conclusion that the jury had not been prejudiced.
III.
Bobcat next challenges the Court’s decision to allow the jury to view a computer animation depicting the Bobcat and backhoe attachment and alternative designs. At trial, the Altmans’ expert Christopher Ferrone used a computer-animated backhoe operator and Model 709 to explain why he believed Model 709’s design created a risk of inadvertent activation. The animation superimposed hypothetical design modifications over Model 709’s existing design to suggest how that risk might be eliminated.
The District Court overruled Bobcat’s objections at trial, which alleged that the animation was unduly prejudicial, misleading, irrelevant, lacked foundation, and amounted to an improper accident reconstruction. In this appeal, Bobcat contends that the evidence was “unfairly prejudicial” under Rule 403 and should not have been admitted without foundational evidence that the “simulation was substantially similar to the facts of the case.” (Appellant’s Br. 36.) Because evidentiary rulings are committed to the sound discretion of the district court, we review for abuse of discretion. We will reverse a trial judge’s decision to admit or exclude evidence under Rule 403 only if it was “arbitrary and irrational.” McKenna v. City of Philo., 582 F.3d 447, 461 (3d Cir.2009) (citation and quotation omitted). That demonstrably was not the case here.
A district court has discretion to exclude relevant evidence if its probative value is substantially outweighed by the danger of “unfair prejudice” or “misleading the jury.” See Rule 403, Federal Rules of Evidence. In applying Rule 403 to visual demonstrations, we have determined that depictions that appear to “recreate” an accident are significantly more likely to confuse the jury than depictions which merely “illustrate principles forming an expert’s opinion.” Hinkle v. City of Clarksburg, 81 F.3d 416, 425 (4th Cir.1996); Harkins v. Ford Motor Co., 437 F.2d 276, 278 (3d Cir.1970). Thus, for demonstrative evidence closely resembling the actual accident, courts generally require the proponent to establish that the demonstration shares substantial similarity with accident conditions. E.g., McKnight By & Through Ludwig v. Johnson Controls, 36 F.3d 1396, 1402, 1403 (8th Cir.1994). By contrast, if a demonstration does not appear to recreate the accident, Rule 403 generally does not require a foundational showing of similarity -with accident conditions. Gilbert v. Cosco, Inc., 989 F.2d 399, 402 (10th Cir.1993); Champeau v. Fruehauf Corp., 814 F.2d 1271, 1278 (8th Cir.1987); cf. Harkins, 437 F.2d at 278. The test is “not one of labels,” but “whether the demonstration is sufficiently close in appearance to the original accident to create the risk of misunderstanding by the jury, for it is that risk that gives rise to the special requirement to show similar conditions.” Fusco v. Gen. Motors Corp., 11 F.3d 259, 264 (1st Cir.1993).
The District Court concluded, and we cannot disagree, that the Altmans’ computer animation was admissible under Rule 403 without a foundational showing of similarity.5 The Court carefully considered Bobcat’s objection (App.226), determined that unfair prejudice or confusion could be mitigated by cross-examination and limiting jury instructions (App.228), and concluded that “the jury understands it is not an accident reconstruction” (App.228-229). *764We agree. The Altmans’ depiction — a series of sketches interspersed -with brief animations — is not at all lifelike. It clearly illustrates Ferrone’s testimony and does not appear even remotely to be a recreation of the accident. (App.551.) To remove all doubt, the Court instructed the jury that the animation was not a recreation and highlighted differences between the animation and the facts as adduced at trial. (Appellee’s Br. 53.) After reviewing the record and the evidence itself, we determine that the depiction evidence was not “sufficiently close in appearance to the original accident to create the risk of misunderstanding by the jury” or prejudice to Bobcat. Fusco, 11 F.3d at 264. We hold that the District Court did not abuse its discretion in permitting the jury to view this evidence.
IV.
Bobcat next charges that the Court erred in permitting the Altmans’ attorney to cross-examine its sole corporate witness, Product Safety Manager Thomas Ihringer, using an “unrelated” Washington state case, Gammon v. Clark Equipment Co., 38 Wash.App. 274, 686 P.2d 1102 (1984). To support its argument that Model 709 was safe, Bobcat presented Ihringer’s testimony that Bobcat had never received a report of an accident similar to Altman’s. (App.260, 293.) On cross-examination, the Altmans questioned Ihringer about Gammon, a case in which Clark (Bobcat’s parent) violated discovery rules and repeatedly refused “to turn over ... accident reports.” Gammon, 686 P.2d at 1105. After seven questions on Gammon, Bobcat objected that the Gammon line of questioning was “collateral” because it related to a discovery issue that “has nothing to do with [the Altman] case.” (App.302.) The Court overruled Bobcat’s objection, agreeing with the Altmans that the questioning was “all about credibility.” (App.302.) In subsequent questioning the Alt-mans’ attorney elicited testimony, over Bobcat’s general objection, that Clark had been sanctioned in Gammon for discovery violations. The next day, after the close of evidence, Bobcat moved for a mistrial, alleging for the first time that the Gammon questions violated Rules 403 and 608. In this appeal, Bobcat renews its objections based on relevance and Rules 403 and 608.
We admit doubts about the propriety of the Gammon questions and are not absolutely certain they logically undermined either Ihringer’s credibility or the integrity of Bobcat’s accident reporting system. Even so, we cannot say that the District Court abused its discretion in overruling Bobcat’s relevancy objection to this line of questioning. Relevance is a concept expansively construed, and we do not consider the Gammon questions to be completely irrelevant to the Altmans’ claims.6 It is another matter entirely that Gammon may have been allegedly relevant only for improper purposes.
We further determine, under a dear-error standard, that the Court did not err *765in overruling Bobcat’s objection to the “sanctions” question or its belated objections under Rules 408 and 608. See Rule 103(a)(1) (authorizing only dear-error review for general objections unless specific ground apparent from context); United States v. Sandini, 803 F.2d 123, 126-127 (3d Cir.1986) (determining that timely relevancy objection did not preserve for appellate review untimely objections under Rules 403 and 404(b)). In our tradition, the initiative in excluding improper evidence is left entirely to the opponent, who must object to disputed evidence in a specific, timely manner. This requirement is not a trap for the unwary, but is designed to alert the trial court to evidentiary defects so that the court and counsel may immediately remedy those defects. Cf. Estelle v. Williams, 425 U.S. 501, 509 n. 3, 96 S.Ct. 1691, 48 L.Ed.2d 126 (1976). An objection must, therefore, “suppl[y] the Court with sufficient information ... [to] determine the ground of the objection and ... make an informed and intelligent ruling.” 1 Wigmore, Evidence § 18. Consequently, we examine the Court’s rulings in light of the objections, arguments and evidence proffered by Bobcat at trial.
Under these principles, we cannot say that it was clear error for the Court to overrule Bobcat’s “sanctions” objection or its belated Rule 403 and 608 objections. Our review of the record suggests that the Court reasonably understood Ihringer’s testimony as establishing his own participation and malfeasance in Bobcat’s prior litigation misconduct. (App.284, 285, 286, 300, 301.) Earlier testimony established that during the Gammon litigation, Ihringer was the Clark employee responsible for furnishing accident reports for litigation at the request of Clark’s counsel. (App.283-284.) Ihringer also testified that he attended the Gammon trial and had assisted in pretrial discovery. When asked about Clark’s conduct in the Gammon case, Ihringer frequently responded in terms of what “we” and “I” did. (App.300-302.) Based on the trial Court’s understanding of the testimony, the Gammon questions, including the “sanctions” question, were proper under Rule 608.
Significantly, Bobcat forewent multiple opportunities to correct the Court’s understanding of the testimony, if that understanding was indeed erroneous. In her colloquy with Bobcat’s counsel, Chief Judge Ambrose explained, “I think what [sic] Mr. Hartman said he’s introducing [the Gammon questions] for credibility.” (App.302.) At that point, Bobcat should have immediately asserted its Rule 608 objection and should have sought to clarify Ihringer’s involvement in the Gammon matter. It did not. Re-direct would have presented another opportunity to develop this information, but Bobcat declined the opportunity. Indeed, Bobcat points us to no place in the record where it informed the trial court of the factual basis for its objection to the Gammon cross-examination. In light of Bobcat’s failure to apprise the Court of the basis of its objections, we determine that the Court did not commit clear error when it overruled Bobcat’s objections under Rules 403 and 608.7 We *766will not, therefore, disturb the Court’s evi-dentiary rulings with respect to the Gammon questions.
* * * * *
We have considered all contentions presented by the parties and conclude that no further discussion is necessary.
The judgment of the District Court will be AFFIRMED.
. Bobcat Company is an unincorporated business unit of Clark Equipment Company.
. The District Court had jurisdiction pursuant to 28 U.S.C. § 1332. This Court has jurisdiction pursuant to 28 U.S.C. § 1291.
. The question posed to Juror 8 was typical: “Do you feel that anything that [Juror 73] said would in any way affect your ability to render a fair verdict in this case?” Juror 8’s response was also typical: “No I don’t.” (App. 375.) Our review of the record reveals that Chief Judge Ambrose posed this question, or a substantively identical question, to each juror. (App.368, 373, 375, 378, 380, 382, 384-385.) Each juror assured the Court that he or she could disregard Juror 73's statements and could render a fair, impartial verdict.
. Two additional circumstances assure us that the Court had objective indicia that the jury would remain impartial. First, the jury had already demonstrated its ability to follow the Court’s instructions by reporting Juror 73’s misconduct almost immediately (App.369). Objectively speaking, the jury’s obedience gave the Court reason to believe the jury would follow instructions to decide the case only on the evidence adduced at trial. Second, the Court was doubtless aware that Juror 73’s statement that the compartment was "tight” was cumulative of other uncontested evidence. Notwithstanding Bobcat's argument to the contrary, no witness testified that the operator’s compartment was anything but "tight.” The uncontested nature of this evidence objectively suggests that Juror 73's *763statements would not, and could not, prejudice the jury.
. The Court’s Rule 403 analysis was implicit in the trial colloquy. See Forrest v. Beloit Corp., 424 F.3d 344, 355 (3d Cir.2005).
. As Professor Wigmore has explained,
The modern theory of relevancy has been dubbed logical relevancy. This theory contains a number of tenets, one being the claim that evidence having any probative value, however slight, is relevant and therefore admissible in the absence of a specific exclusionary rule or a specific reason, such as undue prejudice, warranting its exclusion. ... This expansive understanding of what it is that makes evidence "relevant” makes it quite difficult to assert with any confidence that any evidence is irrelevant to anything, and close analysis in a modem vein of decisions that purport to exclude evidence for its irrelevancy usually serves to demonstrate that the supposedly irrelevant evidence was in fact excluded (or should have been) for reasons quite apart from irrelevance, such as undue prejudice or undue consumption of time.
1 Wigmore, Evidence § 9.
. In light of the extremely deferential standard for reviewing a trial judge's Rule 403 balancing decisions, we determine that the Court did not commit clear error in rejecting Bobcat's belated Rule 403 objections.
Even were we to decide this evidentiary issue in Bobcat’s favor, we conclude that the alleged errors would be harmless. Error attributable to an evidentiary ruling is "harmless” only if it is "highly probable that the error did not affect the outcome of the case.” Becker v. ARCO Chem. Co., 207 F.3d 176, 180 (3d Cir.2000) (citation and quotation omitted). Bobcat lodged its belated objections only after the Altmans’ attorney had asked, and received answers to, seven Gammon-based questions. This testimony (1) revealed that Clark had failed to produce records in *766the Gammon proceeding, (2) suggested that Ihringer had been involved in the discovery abuses, and (3) attacked Ihringer's "credibility." (App.300-302.) By then, most of the "damage” of which Bobcat complains, was already done. That the jury heard these matters was not attributable to the District Court's ruling, but to Bobcat's failure to timely object. Chief Judge Ambrose herself highlighted this issue: "I don't know what I would have done if the objection would have been made after the first question. I don't know if I would have thought it went to credibility then or not, but that opportunity went by and I don't know what my ruling would have been." (App.346-347.)
Moreover, in view of the jury’s demonstrated ability to obey jury instructions, Chief Judge Ambrose's curative instructions were more than sufficient to mitigate any unfair prejudice. (App. 350-351 ("[Tjhere's no evidence that Mr. Ihringer and/or the defendant Bobcat withheld any evidence of other accidents involving the machines at issue here. I want to instruct you that the incident that Mr. Hartman questioned Mr. Ihringer about yesterday occurred many years ago, in another state, and in a totally unrelated incident.”).)
Finally, we disagree that any error was harmful to the extent that it impugned Ihringer’s credibility and allegedly unfairly prejudiced Bobcat’s key "design defense.” Our review of the record demonstrates that the evidence adduced in the seven-day trial overwhelmingly supported the Altmans' negligence claim. The Gammon questions comprised a very small portion of this evidence, occupying only five pages of Ihringer's sixty-page trial testimony, which itself occupied a fraction of one day in a seven-day trial. Moreover, prior to the Gammon questions, the Altmans' cross-examination of Ihringer had substantially undercut Bobcat's "design defense” that no previous accidents had occurred by demonstrating that Bobcat’s accident-reporting system did not track "near-misses” (incidents and accidents which did not result in injuries). In view of these circumstances, we determine that the alleged error would be harmless.
|
01-04-2023
|
11-05-2022
|
https://www.courtlistener.com/api/rest/v3/opinions/8473453/
|
OPINION
PER CURIAM.
Appellant Nicholas V. Siravo appeals from the dismissal of his civil suit pursuant to Federal Rule of Civil Procedure 12(b)(6). For the following reasons, we will affirm.
On June 28, 2007, Nicholas and Felicia Siravo filed suit in federal district court against Appellees Countrywide Home Loan (“Countrywide”), Deutsche Bank National Trust Company and Morgan Stanley ABS Capital I., Inc. alleging breach of contract, predatory lending, negligence, and unspecified civil rights and due process violations. Their claims arose out of Countrywide’s alleged misrepresentations about their mortgage, including Countrywide’s alleged failure to properly notify them of the change in mortgage servicers and their resultant problems in obtaining credit and financing. Ultimately, the Sira-vos lost their home to a foreclosure action.
Prior to the initiation of their federal suit, the Siravos had filed three lawsuits in state court alleging harm arising out of the same initial set of facts alleged here. The November 2004 suit, filed by Nicholas Siravo only, sought damages against Countrywide for lack of notice regarding the change in the company servicing the mortgage. Siravo claimed that the lack of notice resulted in a missed mortgage payment. Siravo v. Deutsche Bank National Trust Co., November Term, 2004, No. 1774 (Pa.Ct.Com.Pl. Nov. 2004). That lawsuit settled on March 3, 2005, with an agreement by Siravo to a general release of all existing claims against Countrywide arising out of the mortgage loan. The second suit, filed in July 2005, sought damages against Countrywide for breach of the settlement agreement. Siravo v. Deutsche Countrywide Home Loans, Inc., July Term, 2005, No.1914 (Pa.Ct.Com.Pl. July 2005). The court dismissed the case without prejudice for Siravo’s failure to substantiate breach of the settlement agreement and for his failure to demonstrate what damages were suffered. Apparently, Siravo did not appeal or seek reconsideration of the court’s order.
In December 2005, the Siravos filed a third lawsuit. The complaint once again sought damages for Countrywide’s failure to notify and breach of the settlement agreement. See Siravo v. Countrywide Home Loans, Inc. et. al., December Term, 2005, No. 2259 (Pa.Ct.Com.Pl. Dec. 2005). In addition to naming Countrywide, the Siravos sought damages against Deutsche Bank and Morgan Stanley with regard to the mortgage foreclosure resulting from *768the missed loan payments. On August 21, 2006, the Court of Common Pleas dismissed the suit as repetitive of the first. The court also advised the Siravos that their proper remedy was to re-open the order disposing of the 2004 suit. Taking the court’s suggestion, Siravo attempted to re-open his first case against Countrywide, arguing that Appellees breached the settlement agreement resolving that action. Siravo also filed a motion to enforce the settlement agreement. The Court of Common Pleas denied both of motions and Siravo did not appeal those orders.
Following dismissal of their third lawsuit in state court, the Siravos filed the instant complaint alleging that Appellees violated their civil rights and various federal laws. Countrywide moved to dismiss the complaint arguing that it was barred by res judicata and the Rooker-Feldman doctrine. The District Court granted its motion and, citing the doctrine of res judi-cata, dismissed the case. This appeal followed.1
We have jurisdiction over final orders of district courts under 28 U.S.C. § 1291. Our review of the district court’s dismissal of a complaint pursuant to Rule 12(b)(6) is plenary. McGovern v. City of Phila., 554 F.3d 114, 115 (3d Cir.2009).
We agree with Appellees that Siravo’s claims are barred by the Rooker-Feldman doctrine and therefore the District Court should have dismissed the case for lack of subject matter jurisdiction. The Rooker-Feldman doctrine “prohibits District Courts from adjudicating actions in which the relief requested requires determining whether the state court’s decision is wrong or voiding the state court’s ruling.” Walker v. Horn, 385 F.3d 321, 329 (3d Cir.2004) (citations and internal quotation marks omitted.) Here, to the extent that Siravo attempts to challenge Countrywide’s servicing of his loan, those claims were resolved in a state court settlement agreement. Siravo attempted to file a separate lawsuit concerning the agreement and, when that failed, attempted to re-open the original case and also filed a motion to enforce the settlement agreement. The Court of Common Pleas denied both motions and Siravo did not appeal. (Supp.App. 12-13.) The relief Sira-vo now seeks would require a federal court to either invalidate the settlement agreement or determine that the state court’s refusal to re-examine the parties’ compliance with the agreement was wrong. Under the Rooker-Feldman doctrine, neither is permissible. See Desi’s Pizza, Inc. v. City of Wilkes-Barre, 321 F.3d 411, 419 (3d Cir.2003).
Further, even if Siravo’s claims were not barred by Rooker-Feldman, they would be barred by the doctrine of res judicata. The principle of res judicata bars claims that were brought, or could have been brought, in a previous action. In re Mullarkey, 536 F.3d 215, 225 (3d Cir.2008). The District Court properly applied the same factors a Pennsylvania court would apply in determining whether res judicata bars Siravo’s federal claims, namely: 1) whether the action in the Court of Common Pleas involved the same “cause of action” as the federal claims; 2) whether the parties had the capacities to sue or be sued in the Court of Common Pleas; and 3) whether the litigation in the Court of Common Pleas resulted in a decision on the merits. See Lance v. Dennis, 546 U.S. 459, 466, 126 S.Ct. 1198, 163 L.Ed.2d 1059 (2006); Turner v. Crawford Square Apartments III, L.P., 449 F.3d 542, 548 (3d Cir.2006) (listing factors necessary for res judicata inquiry).
*769Here, the first element is satisfied inasmuch as Siravo’s first complaint, which led to the settlement agreement, contained the same allegation as his federal complaint: that miscommunications regarding his loan and errors Countrywide committed led to the foreclosure of his house. (Supp.App.61-67.) Further, Siravo’s third lawsuit brought claims related to Countrywide’s breach of the settlement agreement. Second, while Siravo named only Countrywide in the first complaint, he could have named both Deutsche Bank and Morgan Stanley and did so in the thud lawsuit. In any event, though he names both Deutsche Bank and Morgan Stanley in the caption, it does not appear that Siravo makes any claims against either of these defendants in his federal complaint. Third, under Pennsylvania law, a court-approved settlement, such as the one Siravo agreed to, constitutes a final, valid judgment for purposes of claim preclusion. Bearoff v. Bearoff Bros., Inc., 458 Pa. 494, 327 A.2d 72, 75 (1974). Finally, the Court of Common Pleas dismissed Siravo’s third state court lawsuit with prejudice but noted that Siravo had an option to re-open the 2004 action. As discussed above, Siravo’s attempts to re-open that action were unsuccessful. We therefore find that the state courts also rejected the merits of Siravo’s claims based on breach of the settlement agreement. See Gambocz v. Yelencsics, 468 F.2d 837, 840 (3d Cir.1972) (“[d]ismissal with prejudice constitutes an adjudication of the merits as fully and completely as if the order had been entered after trial”) (citation omitted). Thus, even if not bai*red by the Rooker-Feldman doctrine, Siravo’s claims are barred by the doctrine of res judicata.
For the foregoing reasons, we will affirm the judgment of the District Court.
. Felicia Siravo has been dismissed from this appeal pursuant to a Clerk's order.
|
01-04-2023
|
11-05-2022
|
https://www.courtlistener.com/api/rest/v3/opinions/8473455/
|
OPINION
BARRY, Circuit Judge.
Centrix HR, LLC (“HR”) appeals various aspects of the final order of the Magistrate Judge, following a bench trial, in which the Magistrate Judge resolved a contractual dispute involving HR and Defendants Centrix HR Logistics, Inc. (“Logistics”), William Black (Logistics’ owner), and On-Site Staff Management, Inc. (“On-Site,” a successor to Logistics) (collectively “Defendants.”). Defendants cross-appeal as to one issue. We will affirm except as to the award of counterclaim damages, which we will remand for further consideration.
I.
Because we write only for the parties, we recite only those facts as found by the Magistrate Judge that are relevant to our analysis. On May 15, 2002, HR and Logistics entered into a Licensing Agreement (the “Agreement”), whereby Logistics agreed to generate sales of temporary personnel staffing contracts and HR agreed to provide administrative functions for Logistics including the collection of revenues from employers and the payment of salaries, benefits, payroll taxes, and other administrative expenses. Among other things, the Agreement required HR to provide regular reports and financial statements to Logistics, and it contained a non-compete clause, providing that Logistics or any person in control of Logistics may not “[h]ave any interest, direct or indirect, in the ownership or operation of any business similar to that of [HR]’s business, within the licensed area or within 100 miles thereof, for a period of three years after expiration or termination of this Agreement....” (App. at 53-54.) The parties entered into a separate Guaranty Agreement (the “Guaranty”) by which Logistics and Black guaranteed the performance and payment of HR’s obligations arising out of the Agreement. Logistics and Black did not agree to guarantee losses incurred by HR arising out of HR’s gross negligence, intentional misconduct, or intentional material breach of the Agreement.
Although it was not permitted by the Agreement, HR, through its owner, Blaise Mazzoni, used funds collected from Logistics’ clients to cover expenses incurred by other companies related to HR and/or Mazzoni. Mazzoni thought it was his obligation to keep all accounts among the various companies positive, and, therefore, used the funds to cover various companies’ expenses rather than to pay federal payroll taxes. Mazzoni allocated expenses to the companies based upon their sales value, despite the fact that Black did not consent to the use of funds belonging to Logistics for the benefit of any company *772other than Transit Aide, a company also owned by Black.
HR consistently failed to provide financial statements to Logistics as required by the Agreement, and the business relationship between Mazzoni and Black quickly deteriorated. In October 2003, HR and Logistics entered into a Letter of Understanding in which Logistics acknowledged that it was obligated to repay loans from HR to Logistics that had been used to pay for Logistics’ operating losses. By November 2003, HR had lost its funding source, and, on December 1, 2003, Black notified Mazzoni and HR of Logistics’ intent to terminate the Agreement due to HR’s default. Thereafter, Black formed On-Site, which also engages in the temporary staffing business.
HR brought suit against Defendants raising a number of issues, including a claim that Defendants were responsible for HR’s inability to pay its tax liabilities because, as a result of their conduct, HR “has been deprived of the assets assigned to it which were earmarked to discharge [the] liabilities.” (App. at 11.) Logistics counterclaimed for fees owed to it by HR pursuant to the Agreement.
After a three-day bench trial in October 2007, the Magistrate Judge issued Findings of Fact and Conclusions of Law on March 25, 2008, 2008 WL 783558. The Magistrate Judge found that Logistics was contractually obligated to repay any loans made from HR to Logistics and Transit Aide, but not loans made by HR to other companies, and concluded that Logistics, On-Site (as Logistics’ successor), and Black (as guarantor of Logistics’ obligations) were liable to HR for loans in the amount of $865,999.36.
The Magistrate Judge also concluded that Logistics properly terminated the Agreement because HR breached it in numerous ways, but that Black breached the Agreement’s non-compete clause by establishing On-Site. Because HR failed to demonstrate damages arising from breach of the non-compete clause, however, only $1.00 in nominal damages was awarded.
The Magistrate Judge found that HR’s remaining claims — for intentional interference with contractual relations, an accounting, civil conspiracy, conversion, unfair competition, and violation of the Racketeer Influenced and Corrupt Organizations Act — failed. Finally, the Magistrate Judge found in Logistics’ favor on the counterclaim, awarding $1,603,673 in damages based on the finding that HR’s books of original entry showed a net due to Logistics of $1,603,673 on the last date for which financial statements were prepared. Logistics’ award on its counterclaim was offset by the amount owed by Defendants to HR, so that the Magistrate Judge’s final order required HR to pay $737,673.70 in damages.
HR moved for reconsideration, and Defendants moved for relief pursuant to Federal Rules of Civil Procedure 52, 59, and 60. In one order resolving all post-trial motions, dated June 3, 2008, 2008 WL 2265266, the Magistrate Judge granted Defendants’ motion in part and amended the Conclusions of Law such that Black was not personally liable for the repayment of loans made to Logistics by HR, given the plain language of the Guaranty. HR’s motion was denied in its entirety.
On appeal, HR argues that the Magistrate Judge erred when he: (1) awarded $1.6 million to Logistics on its counterclaim, (2) granted Defendants’ post-trial motion in part, (3) failed to hold Black and Logistics liable for HR’s tax obligations, (4) allowed Black and On-Site to offset damages awarded on Logistics’ counterclaim, and (5) denied HR’s request for an accounting to determine damages on its claim for breach of the non-compete clause. In their cross appeal, Defendants *773argue that the Magistrate Judge erred in concluding that they breached the non-compete clause. We have jurisdiction pursuant to 28 U.S.C. § 1291.
II.
In this appeal from a trial to the bench, we review findings of fact for clear error and conclusions of law de novo. McCutcheon v. America’s Servicing Co., 560 F.3d 143, 147 (3d Cir.2009). Factual findings are clearly erroneous if we are “left with a definite and firm conviction that a mistake has been committed,” and we must uphold factual findings “[i]f the district court’s account of the evidence is plausible in light of the record viewed in its entirety.” Giles v. Kearney, 571 F.3d 318, 322 (3d Cir.2009) (quoting Krasnov v. Dinan, 465 F.2d 1298, 1302 (3d Cir.1972) and Anderson v. Bessemer City, 470 U.S. 564, 573, 105 S.Ct. 1504, 84 L.Ed.2d 518 (1985)).
A. Counterclaim Damages
HR argues that the Magistrate Judge clearly erred when he awarded approximately $1.6 million to Logistics on its counterclaim, representing the net amount due to Logistics based on HR’s own books. HR does not appear to dispute that its books showed that it owed Logistics a net amount of $1.6 million at the conclusion of the parties’ relationship. It argues, however, that the correct amount of damages should have been $505,965, because, at various points in the litigation, Defendants made clear that they were seeking only $505,965 in damages on the counterclaim.
Defendants’ expert testified at trial that the total amount owed to Logistics was $1.6 million, but he also testified, almost immediately thereafter, that $505,965 was “the amount that would be required to restore [Logistics] to the financial position it otherwise would have been in, had there been no breach that is alleged in the counterclaim” — “the amount due to Logistics from [HR].... ” (App. at 229.) Moreover, while the $1.6 million figure is listed as “net amount due [Logistics]” in Exhibit B to the expert’s rather sparse report,1 Exhibit A to that report lists $505,965 as the “Total Net Amount Due [Logistics].” (Id. at 107-08.) Defendants also argued for $505,965 in their Proposed Findings of Fact and Conclusions of Law and post-trial brief (although, at another point in the brief, they stated that the total amount owed by HR to Logistics was $1.6 million and that any award to HR should be offset by this amount), and counsel summarized the counterclaim to the Magistrate Judge saying “my client is out a half of a million bucks.” (Id. at 279.)
HR moved for reconsideration of the $1.6 million award. The Magistrate Judge denied the motion, concluding that the Proposed Findings of Fact and Conclusions of Law were not evidence, that there was sufficient evidence to support the $1.6 million figure in the form of HR’s own records and Defendants’ expert’s unrefut-ed testimony, and that at trial Defendants’ expert qualified his calculation of $505,965, stating: “Yeah, when you take everything into account and if you accept the arguments in the counterclaim and if you find liability, that would be the amount....” (Id. at 229.) The Magistrate Judge stated that it was “unclear” what the expert thought had to be taken “into account” to arrive at the $505,965 figure or even which counterclaim the expert was referencing. (Id. at 393). What is clear, at least to us, *774is that the expert directly, albeit confusingly, undermined the $1.6 million figure and did so right on the heels of having first espoused it.
Given the contradictions noted above, the inadequate explanation by the parties and the Magistrate Judge of those contradictions, and the somewhat haphazard portions of the record presented to us on appeal, we are unable to determine that the Magistrate Judge’s award of $1.6 was clearly erroneous—or that it was not. Accordingly, we will remand this issue to the Magistrate Judge for clarification or recalculation of that award. We are confident that, following clarification or recalculation, there will be no need for further review.
B. Black as Guarantor for Logistics
HR argues that the Magistrate Judge erred in considering Black’s claim that he was not personally liable for Logistics’ obligations because Defendants raised this claim for the first time in their post-trial motions. In his order, however, the Magistrate Judge cited numerous places in the record where Defendants had claimed that the plain language of the Guaranty controlled the parties’ obligations as guarantors, and HR does not challenge these citations. Moreover, the plain language of the Guaranty makes clear that Black agreed to guarantee certain obligations of HR pursuant to the Agreement, not the obligations of Logistics. Therefore, we agree with the Magistrate Judge that the evidence supports the conclusion that Black was not personally hable for the debts of Logistics to HR.
C. Liability for Outstanding Tax Liabilities
HR argues that, according to the Magistrate Judge’s interpretation of the Guaranty, Black and Logistics are responsible for paying HR’s liability to the IRS and other obligations because Black and Logistics had guaranteed those obligations. HR does not, however, challenge the findings of the Magistrate Judge that Mazzoni and HR intentionally breached the Agreement in several ways, including by intentionally failing to pay federal payroll taxes. The Guaranty provides that Black and Logistics “shall not be responsible for any loss incurred by [HR] arising out of [HR’s] own gross negligence, or intentional misconduct or intentional material breach in its performance of the Licensing Agreement.” (App. at 76.) Because HR fails to challenge any of the findings of intentional breach, its argument that the Magistrate Judge’s interpretation of the Guaranty necessitates a finding that Defendants guaranteed HR’s tax obligations fails.
D. Offset of Damages
HR argues that, because the counterclaim was brought only on behalf of Logistics, Black and On-Site should not be able to use the $1,603,673 awarded on the counterclaim to offset their joint and several liability for the $865,999.36 that the Magistrate Judge found Defendants owed to HR. Because, as discussed above, Black is not personally liable for repayment of HR’s loans to Logistics, Black has no personal liability for the $865,999.36 owed by Logistics. As for On-Site, the Magistrate Judge concluded that it was a successor corporation to Logistics and was therefore liable to HR for the amounts that Logistics owed to HR. Because Logistics owed nothing after offset, On-Site owes nothing.
E. Request for an Accounting
HR argues that the Magistrate Judge should have ordered an accounting to establish HR’s damages on its claim for breach of the non-compete clause because its failure to present evidence of damages was a direct result of Defendants’ wrongful *775refusal to produce relevant documents. Black admitted at trial that he received a request for records relating to On-Site’s sales activity from HR’s counsel, but that he did not comply.
Addressing HR’s argument on reconsideration, the Magistrate Judge correctly refused to order an accounting both because HR never requested one as to the relevant count of the complaint and because HR had an adequate remedy at law, i.e., a claim for damages, see Rock v. Pyle, 720 A.2d 137, 142 (Pa.Super.Ct.1998). The Magistrate Judge recognized that Defendants failed to produce relevant financial documents, but noted that the documents were originally requested on January 31, 2006 and that, after that date, HR did nothing further to obtain them until the time of trial almost two years later.
In Pennsylvania2, the burden is on the plaintiff to prove damages. Omicron Sys., Inc. v. Weiner, 860 A.2d 554, 564 (Pa.Super.Ct.2004). Unlike in some contracts, in this Agreement there is no damage provision for breach of the non-compete clause, compare id. at 565, and, therefore, the measure of damages is lost profits, proved to a “reasonable certainty.” Scobell, Inc. v. Schade, 455 Pa.Super. 414, 688 A.2d 715, 719 (1997). It is clear that an award of damages “cannot be based upon mere guess or speculation.” Id. In cases where a defendant’s wrongful conduct renders an exact calculation of damages difficult, however, courts will not permit a defendant to profit from its misconduct by allowing the defendant to avoid damages based on the plaintiffs failure to provide precise evidence of damages. In Judge Technical Services, Inc. v. Clancy, 813 A.2d 879, 886-87 (Pa.Super.Ct.2002), the court upheld the trial court’s “just and reasonable estimate” of damages in a case where defendants intentionally and repeatedly ignored numerous discovery orders and then argued that plaintiffs failed to prove damages.
Here, unlike in Clancy, Defendants have not disobeyed repeated discovery orders and there is no evidence from which there could be a reasonable estimate of damages for breach of the non-compete clause. In addition, the Magistrate Judge found, and HR does not dispute, that HR was out of business at the time the Agreement was terminated, prior to the existence of On-Site, because it lost its funding source, not because of competition with On-Site. The Magistrate Judge’s award of nominal damages on HR’s claim for breach of the non-compete clause was eminently appropriate.
F. Cross-Appeal: Liability for Breach of Non-Compete Clause
In their cross-appeal, Defendants argue that they were no longer bound by the non-compete clause after the Agreement’s termination, based on the general principle that a party that materially breaches a contract may not seek damages resulting from the other party’s subsequent refusal to perform its obligations. See J.W.S. Delavau, Inc. v. Eastern Am. Transport & Warehousing, Inc., 810 A.2d 672, 686 (Pa.Super.Ct.2002).
The non-compete clause specifically contemplates an ongoing obligation after the Agreement’s termination, however, and the Magistrate Judge correctly concluded that this provision continued to have effect, despite the fact that Defendants were justified in terminating the Agreement due to HR’s breach. The general principle of Pennsylvania law cited by Defendants is not applicable under these circumstances, where the parties did each (at least somewhat) successfully perform *776their obligations under the Agreement for a time prior to termination. The Magistrate Judge’s finding that HR breached the Agreement did not give Defendants license to declare the entire Agreement void and discharge their own continuing obligation under the non-compete clause. Therefore, we agree with the Magistrate Judge that Defendants breached that clause.
III.
For the reasons discussed above, we will remand the award of counterclaim damages for further consideration, and in all other respects will affirm the Order of the Magistrate Judge.
. We note that the Magistrate Judge may have made a clerical error when he used the $1,603,673 figure because Defendants' expert's report, at Exhibit B, states that the net amount due to Logistics, based on HR’s books, was $1,603,901. Neither party seeks correction of Otis error and, therefore, we need not address it.
. The Agreement provides for the application of Pennsylvania law.
|
01-04-2023
|
11-05-2022
|
https://www.courtlistener.com/api/rest/v3/opinions/8473458/
|
OPINION
BARRY, Circuit Judge.
Angel Santos (“Santos”) was convicted on two counts of heroin distribution and one count of possession with intent to distribute heroin, and sentenced to 240 months’ imprisonment. He appeals his conviction and sentence on a variety of grounds. We will affirm.
I.
Because we write solely for the parties, we presume familiarity with the facts and *777will recite only the basic underpinnings of this case.
On three occasions in October and November 2006, Santos sold heroin to an undercover police officer- — first, 96 milligrams, then 18 grams, and finally 40 grams. On the third occasion, he was arrested. On the day of the arrest, the police obtained a search warrant for his residence and found 67 additional grams of heroin.
From the outset of the federal proceedings against him, Santos raised a series of meritless challenges to the jurisdiction of the federal court. He also had been assigned a series of attorneys, and then decided that he would like to waive counsel and represent himself, albeit with stand-by counsel in the wings. Accordingly, the United States Magistrate Judge before whom Santos was appearing at the time conducted a Faretta colloquy to ensure that his waiver of counsel was knowing, voluntary, and intelligent. After asking Santos a series of questions that probed into what he wanted and what he knew with respect to self-representation, the Magistrate Judge concluded that Santos’s waiver of counsel was knowing, voluntary, and intelligent. Before the start of trial, the District Court conducted another Far-etta colloquy, and also concluded that Santos’s waiver was valid. Following trial, Santos was convicted on all counts, and sentenced to 240 months’ imprisonment.
The District Court had jurisdiction pursuant to 18 U.S.C. § 3231, and we have jurisdiction pursuant to 28 U.S.C. § 1291 and 18 U.S.C. § 3742.
II.
On appeal, Santos argues, among other things, that his waiver of the right to counsel was not knowing, voluntary, and intelligent, and that his sentence was procedurally unreasonable.1
A.
Before a criminal defendant can be permitted to proceed pro se, a court must make certain that he is knowingly, voluntarily, and intelligently waiving his Sixth Amendment right to counsel. See, e.g., Faretta v. California, 422 U.S. 806, 835, 95 S.Ct. 2525, 45 L.Ed.2d 562 (1975). Because of the singular import of the right to counsel, we have instructed that “[cjourts must indulge every reasonable presumption against a waiver of counsel.” Buhl v. Cooksey, 233 F.3d 783, 790 (3d Cir.2000). Accordingly, such a waiver “ought not [be] accept[ed] ... absent a penetrating and comprehensive examination of all the circumstances.” United States v. Stubbs, 281 F.3d 109, 118-19 (3d Cir.2002) (internal citations and quotations omitted). It is clear that “the defendant [must] be informed of all risks and consequences associated with his decision for self-representation.” United States v. Peppers, 302 F.3d 120, 135 (3d Cir.2002) (emphasis in original). “Our review of whether a defendant’s waiver of counsel was knowing and intelligent is plenary as it involves only legal issues.” Stubbs, 281 F.3d at 113 n. 2.
In Peppers, we set forth a series of questions, some with subparts, that provides a “useful framework for the court to assure itself that a defendant’s decision to proceed pro se is knowing and voluntary.” 302 F.3d at 136. In United States v. Jones, we observed that “[although no scripted recital is required for this inquiry, we do require that all of the subjects covered in the model questions set forth in *778Peppers be fully explored in the inquiry, to the extent those subjects are relevant.” 452 F.3d 223, 234 (3d Cir.2006).
Each and every Peppers/Jones subject was covered almost word for word in the colloquy conducted by the Magistrate Judge at the time Santos elected to proceed pro se; indeed, at oral argument before us his counsel described that colloquy as “perfect.” The District Court conducted yet another colloquy on the day trial was to commence after confirming that Santos wanted to proceed pro se, a colloquy in which the Court went into all but two of the Peppers subjects and went beyond Peppers when it questioned Santos about the Sentencing Guidelines. Santos has not explained why, in his view, the District Court was obligated to conduct an additional complete colloquy when it had already been determined that his waiver of the right to counsel was knowing, voluntary, and intelligent.2 Moreover, Santos never wavered in his desire to represent himself at any point prior to or during sentencing, nor was there any change in circumstances between the end of his trial in January, 2008 and his sentencing hearing in July, 2008. Absent a revocation of his waiver or some other change in circumstances before sentencing, the District Court had no reason, let alone an obligation, to revisit the waiver question and conduct another Faretta colloquy. Cf United States v. Modena, 302 F.3d 626, 630-31 (6th Cir.2002).
The record reflects the sort of full and penetrating examination that we require pursuant to Peppers and Jones.3 Santos made the decision to waive counsel; we need not revisit that decision simply because he is displeased with the jury’s verdict.
B.
Santos also contends that the District Court erred in not sufficiently discussing the 18 U.S.C. § 3553(a) factors before imposing sentence.4 There is no merit to this contention. In light of the arguments raised, the facts presented in the presen-tence report, and the circumstances surrounding Santos and the crimes of which he was convicted, the Court’s discussion of the § 3553(a) factors, albeit brief, was entirely adequate. There is also no merit to the contention that Santos should not have been sentenced because he represented himself at the trial. (See Appellant’s Br. 29.) This argument is simply a different version of the Faretta claim rejected above.
III.
For the foregoing reasons, we will affirm the judgment of conviction and sentence.
. Santos also raises the following arguments, which we have reviewed and dismiss summarily as devoid of merit: (1) the District Court made an improper drug quantity calculation at sentencing; (2) the Court erroneously concluded that he was a career offender; and (3) the Court wrongly denied his motion to suppress.
. Indeed, Santos recognized that there had already been just such a colloquy. (See JA 113 (“Mr. Santos: Your Honor, I believe I did my colloquy back in October 19th."); id. at 115a ("Mr. Santos: Your Honor, I believe I’ve already taken my colloquy back on October 9th. I don’t know if another one is needed by law.”).)
. Santos's appellate counsel expends much time and energy pointing out Santos's deficiencies in representing himself at trial. But the issue here is not whether, after the fact, Santos turned out to be a good representative for himself. To the contrary, the issue is whether he validly waived the right to counsel. Accordingly, we will not discuss Santos's trial strategy or any deficiencies in his performance.
.Santos erroneously characterizes this alleged error as a problem of substantive reasonableness rather than procedural reasonableness: "Assuming, arguendo, that there was no procedural error [in sentencing a defendant who should not have represented himself], the sentence was not substantively reasonable because the court failed to follow the required sentencing analysis.” (Appellant’s Br. 29.)
|
01-04-2023
|
11-05-2022
|
https://www.courtlistener.com/api/rest/v3/opinions/8473463/
|
OPINION
GARTH, Circuit Judge:
David B. Chontos, Esq., counsel for defendant Ray Kelly in this case, submitted a motion to withdraw as counsel and accompanying brief pursuant to Anders v. California, 386 U.S. 738, 87 S.Ct. 1396, 18 L.Ed.2d 493 (1967) and Local Appellate Rule 109.2(a) because there are no non-frivolous issues on appeal. Upon careful review of the brief and the record, we will grant the motion and affirm the District Court’s judgment and sentence.
*784I.
In 2005, Kelly began serving a 70-month federal prison sentence imposed following a conviction on narcotics charges. While incarcerated, Kelly continued to arrange the distribution of large quantities of cocaine. This was accomplished largely through a series of telephone calls from prison to his wife and two partners in the narcotics business. Law enforcement officers monitored those calls, and connected them with the June 15, 2006 seizure of $250,000 in cash from a mail facility in North Huntingdon, Pennsylvania. Police later determined that the money had been sent from one of Kelly’s co-conspirators to the other as payment for approximately fifteen kilograms of cocaine. In subsequent telephone calls, Kelly discussed the seizure of the money and the continuing viability of the enterprise. App. 38^2.
Kelly was indicted in June 2007, and pled guilty to conspiring to distribute, and to possess with intent to distribute, at least five kilograms of cocaine. See 21 U.S.C. § 841(a)(1), 846. The District Court sentenced Kelly to 240 months of imprisonment, the minimum term of imprisonment allowed by statute in light of Kelly’s prior felony drug conviction.1 See 21 U.S.C. § 841(b)(1)(A). Kelly appealed, and his counsel filed a motion to withdraw and accompanying Anders brief. Kelly filed an informal pro se reply brief.2
II.
Our task in ruling on a motion to withdraw pursuant to Anders is twofold.3 We ask (1) whether counsel adequately fulfilled the requirements of 3d Cir. L.A.R. 109.2; and (2) whether an independent review of the record reveals any non-frivolous issues meriting consideration. United States v. Coleman, 575 F.3d 316, 319 (3d Cir.2009). To satisfy Local Rule 109.2, counsel must (1) “satisfy the court that [he] has thoroughly examined the record in search of appealable issues” and (2) “explain why the issues are frivolous. Counsel need not raise and reject every possible claim. However, at a minimum, he or she must meet the ‘conscientious examination’ standard set forth in Anders.” United States v. Youla, 241 F.3d 296, 300 (3d Cir.2001). If the Anders brief appears adequate, the court need not itself engage in a “complete scouring of the record,” but may be “guided in reviewing the record by the Anders brief itself.” Id. at 301 (quoting United States v. Wagner, 103 F.3d 551, 553 (7th Cir.1996)).
III.
Counsel’s thorough brief meets the requirements of Anders, Coleman, and Local *785Rule 109.2. The brief correctly observes that because Kelly pled guilty, he is limited to arguing three issues on appeal: (1) the jurisdiction of the court below; (2) the constitutional and statutory validity of the plea; and (3) the legality of his sentence. See United States v. Broce, 488 U.S. 563, 569, 109 S.Ct. 757, 102 L.Ed.2d 927 (1989). Kelly pled guilty to a violation of the federal narcotics conspiracy statute, 21 U.S.C. § 846. The District Court plainly had jurisdiction over that offense under 18 U.S.C. § 3231. Thus there are no non-frivolous jurisdictional issues to be argued.
Counsel’s brief notes several deficiencies in the colloquy conducted by the District Court before Kelly changed his plea to guilty. The requirements of the colloquy are set forth in Fed.R.Crim.P. 11(b), and are intended to ensure that the defendant’s decision to plead guilty is made voluntarily, knowingly, and intelligently. See United States v. Tidwell, 521 F.3d 236, 251-52 (3d Cir.2008). Although the District Court’s colloquy covered many of the items provided in the Rule, it failed to address several required topics. In particular, the District Court failed to explicitly inform Kelly that he had a right to maintain his plea of not guilty; to inform Kelly that he had a right to be protected against compelled self-incrimination and to present evidence on his own behalf; and to discuss the impact of Kelly’s guilty plea on the forfeiture allegations contained in the indictment.
Because Kelly did not object to the adequacy of the colloquy in the District Court, we review only for plain error. United States v. Vonn, 535 U.S. 55, 59, 122 S.Ct. 1043, 152 L.Ed.2d 90 (2002); United States v. Corso, 549 F.3d 921, 926-27 (3d Cir.2008). “Plain error requires that there must be (1) error, (2) that is plain or obvious, and (3) that affects a defendant’s substantial rights. If all three conditions are met, an appellate court may then exercise its discretion to notice a forfeited error, but only if (4) the error seriously affects the fairness, integrity, or public reputation of judicial proceedings.” United States v. Goodson, 544 F.3d 529, 539 (3d Cir.2008) (quoting Johnson v. United States, 520 U.S. 461, 467, 117 S.Ct. 1544, 137 L.Ed.2d 718 (1997)) (alterations and internal citations omitted). The defendant bears the burden of persuading us that any error affected his substantial rights. United States v. Adams, 252 F.3d 276, 281 (3d Cir.2001). In the context of allegedly plain error under Rule 11, Kelly is required to “show a reasonable probability that, but for the error, he would not have entered the [guilty] plea.” United States v. Dominguez Benitez, 542 U.S. 74, 83, 124 S.Ct. 2333, 159 L.Ed.2d 157 (2004).
The District Court did not explicitly inform Kelly that he had a right to persist in his guilty plea, as required by Fed.R.Crim.P. 11(b)(1)(B). But Kelly’s right to plead not guilty was implicit in at least one other question posed by the District Court. The Court asked Kelly: “Do you understand that if you continue to plead not guilty and you don’t change your plea, you have a right to be assisted by an attorney at the trial of these charges?” Kelly answered, ‘Tes.” App. 26. Although the District Court would have been well advised to make Kelly’s right to plead not guilty the focus of a separate inquiry, we find it extremely unlikely that doing so would have caused Kelly to rethink his decision to plead guilty. Kelly has not pointed to anything in the record suggesting either that he did not know he had the right to maintain his plea of not guilty, or that he would have exercised that right had the District Court specifically mentioned it during the plea colloquy.
The District Court also failed to inform Kelly of his right against self-incrimination, and of his right to present *786evidence at trial. See Fed.R.Crim.P. 11(b)(1)(E). While these lapses are clearly inconsistent with Rule 11, Kelly is again unable to show that his substantial rights were affected by them — i.e., that there is a reasonable probability that he would not have entered a guilty plea had the District Court fully complied with Rule 11. See United States v. Griffin, 521 F.3d 727, 730 (7th Cir.2008) (holding failure of District Court to inform defendant of right to present evidence was not plain error); cf. United States v. Stead, 746 F.2d 355, 357 (6th Cir.1984) (holding trial court’s failure to inform defendant of right against self-incrimination constituted harmless error under Fed.R.Crim.P. 11(h)).
Finally, the District Court did not discuss the forfeiture allegations against Kelly contained in the indictment, as required by Rule 11(b)(1)(J). Once again, although the colloquy fell short of the Rule’s requirements, there is no reason to suppose Kelly would not have pled guilty but for this omission. Other Courts of Appeals have similarly found that a District Court’s failure to discuss forfeiture allegations during a plea colloquy does not rise to the level of plain error. See United States v. Viveros, 298 Fed.Appx. 817, 819-20 (11th Cir.2008); United States v. Williamson, 219 Fed.Appx. 332, 333 (4th Cir.2007).
“The better practice unquestionably is to comply literally and completely with every requirement of Rule 11.” United States v. de le Puente, 755 F.2d 313, 315 (3d Cir.1985). The District Court did not do that here. Nevertheless, counsel correctly concludes that Kelly is unable to demonstrate that his substantial rights have been affected by the plea colloquy’s various shortcomings, or even by their possible cumulative effect. Nothing in the record suggests that Kelly might not have entered a guilty plea had the colloquy’s errors been corrected. There is thus no plain error, and there are no arguably meritorious grounds upon which Kelly might challenge the validity of his guilty plea.
Finally, no non-frivolous arguments are available to Kelly in challenging his sentence. The District Court sentenced Kelly to 240 months’ imprisonment, the minimum term permitted by statute given the amount of narcotics involved in the charge to which Kelly pled guilty, and Kelly’s prior felony drug conviction. See 21 U.S.C. § 841(b)(1)(A); United States v. Williams, 510 F.3d 416, 418 n. 1 (3d Cir.2007). The District Court had no discretion to impose a lesser sentence. The record reveals no arguably meritorious challenges to Kelly’s sentence.
IV.
For the foregoing reasons, we will grant counsel’s motion to withdraw and affirm the District Court’s judgment and sentence of April 17, 2008. We further hold that “the issues presented in the appeal lack legal merit for purposes of counsel filing a petition for writ of certiorari in the Supreme Court.” 3d Cir. L.A.R. 109.2(b).
. Kelly's sentence also included ten years of supervised release and a $100 special assessment.
. Just before the disposition date of this appeal, Kelly filed a motion to submit a pro se reply brief out of time. We granted the motion and accepted the pro se brief for filing. After consideration of the arguments made in Kelly’s brief, we find them to be without merit.
Kelly’s double jeopardy claim is barred by his guilty plea. United States v. Broce, 488 U.S. 563, 571, 109 S.Ct. 757, 102 L.Ed.2d 927 (1989). To the extent that he argues his plea was the result of ineffective assistance of counsel, the claim must be presented in a motion under 28 U.S.C. § 2255 rather than on direct appeal. United States v. Morena, 547 F.3d 191, 198 (3d Cir.2008).
Kelly's arguments regarding his sentence are baseless. A twenty-year mandatory minimum sentence applied to Kelly because the amount of cocaine involved in the offense exceeded five kilograms, and Kelly had a prior felony drug conviction. 21 U.S.C. § 841(b)(1)(A).
. We have jurisdiction over the appeal under 28 U.S.C. § 1291 and 18 U.S.C. § 3742(a). The District Court had jurisdiction under 18 U.S.C. § 3231.
|
01-04-2023
|
11-05-2022
|
https://www.courtlistener.com/api/rest/v3/opinions/8473469/
|
Submitted are:
(1) Appellant’s motion to quash untimely brief;
(2) Appellees’ response to motion quash;
(3) Appellees’ addendum to response;
(4) Appellant’s reply to Appellees’ response;
(5) Appellees’ supplemental response to motion to quash; and
(6) Appellees’ addendum to supplemental response in the above-captioned case.
JUDGMENT ORDER
FRANKLIN S. VAN ANTWERPEN, Circuit Judge.
The foregoing has been considered by the Court and is ruled upon as follows. We note first that although the District Court’s first July 8, 2008 order denied Jones’ first motion to alter or amend, its second July 8, 2008 order gave Jones an opportunity to respond to the Defendants-Appellees’ motion to dismiss and the Magistrate Judge’s Report and Recommendation. As that is essentially the relief Jones sought in his first motion to alter or amend, Jones’ appeal from the first order is moot. See, e.g., In re Orthopedic Bone Screw Prod. Liab. Litig., 94 F.3d 110, 111 (3d Cir.1996). Moreover, the order effectively reopened the case and, as a result, there was no longer a final, appealable order in the case. See Firestone Tire & Rubber Co. v. Risjord, 449 U.S. 368, 373, 101 S.Ct. 669, 66 L.Ed.2d 571 (1981). Accordingly, we dismiss the appeal docketed at 08-3452.
With regard to the appeal docketed at 08-3893, this matter is remanded to the District Court to consider the Defendants-Appellees’ motion to dismiss in light of Jones’ response. The District Court was incorrect in its conclusion that it lacked jurisdiction because of Jones’ first notice of appeal. See Mondrow v. Fountain House, 867 F.2d 798, 800 (3d Cir.1989). Jones’ motion to quash Appellees’ brief is denied.
|
01-04-2023
|
11-05-2022
|
https://www.courtlistener.com/api/rest/v3/opinions/8473411/
|
OPINION
PER CURIAM.
Morris J. Warren appeals pro se from the denial of his petition for a writ of habeas corpus. We will summarily affirm. See 3d Cir. LAR 27.4 (2008); 3d Cir. I.O.P. 10.6.
I.
Warren is in federal custody in the Middle District of Pennsylvania pursuant to a 1983 conviction in the District of Columbia Superior Court for rape, kidnaping and other crimes. The trial court sentenced him to multiple terms of imprisonment, including concurrent terms of ten years to life imprisonment followed by a consecutive term of five to fifteen years of imprisonment. The District of Columbia Court of Appeals affirmed. See Warren v. United States, 515 A.2d 208 (D.C.1986). The State of Maryland has since lodged a de-tainer against Warren for a life sentence for murder that he will begin serving if and when he completes his District of Columbia sentence or is paroled.
*688Because Warren was convicted in the District of Columbia, his sole post-conviction remedy lies under D.C.Code § 23-110, and he may not proceed with a federal habeas petition unless the § 23-110 remedy “is inadequate or ineffective to test the legality of his detention.” D.C.Code § 23-110(g). See also Swain v. Pressley, 430 U.S. 372, 377-78, 97 S.Ct. 1224, 51 L.Ed.2d 411 (1977). Warren has filed at least five § 23-110 motions in the District of Columbia Superior Court. He has filed at least five federal habeas petitions as well.
The background relevant to the habeas petition at issue here is as follows. In Warren’s most recent § 23-110 motion in the District of Columbia Superior Court, he sought (1) recalculation of his sentence, (2) credit for time served and good conduct, and (3) review of the United States Parole Commission’s denial of his request for parole. The District of Columbia Superior Court denied that motion in 2007 because Warren’s first claim was untimely and it lacked jurisdiction over the remaining two claims.1 The District of Columbia Court of Appeals affirmed.
Warren then filed another federal habe-as petition, apparently challenging his District of Columbia conviction. The District Court transferred that petition to the United States District Court for the District of Columbia under 28 U.S.C. § 1404(a). Warren appealed the transfer order, and we dismissed his interlocutory appeal for lack of jurisdiction. Warren v. Williamson, 3d Cir. C.A. No. 08-1416 (Apr. 2, 2008 order). The District of Columbia District Court later dismissed his petition pursuant to D.C.Code § 23-110(g), see Warren v. Williamson, No. 08-0119, 2008 WL 194655 (D.D.C. Jan.22, 2008), and the United States Court of Appeals for the District of Columbia Circuit denied Warren’s request for a certificate of appealability, Warren v. Williamson, D.C.Cir. No. 08-5039 (Oct. 10, 2008 order). In its order, the Circuit Court of Appeals noted the possibility that Warren might be able to pursue the claims that the District of Columbia Superior Court had denied for lack of jurisdiction by means of a § 2241 petition in the Middle District of Pennsylvania (which, as explained above, he already had done).
Warren then filed the federal habeas petition at issue here, purportedly under § 2241 and eight other (non-pertinent) provisions of Title 28 of the United States Code. As the Magistrate Judge aptly explained, Warren’s petition is a “long, rambling document” that “does not expressly ask for any particular relief.” (R & R at 3.) The Magistrate Judge liberally construed the petition to argue either that the District Court had erred in transferring his previous petition to a United States District Court instead of the District of Columbia Superior Court, or that the District of Columbia federal courts had erred in failing to make that transfer. The Magistrate Judge properly explained that there is no mechanism for a federal court to transfer a habeas petition to a state court and that federal habeas petitions cannot be used to collaterally challenge the habeas rulings of other federal courts. Thus, the Magistrate Judge recommended dismissing Warren’s petition as facially insufficient under Rule 4 of the Rules Governing Section 2254 Cases in the United *689States District Courts. The District Court did so by Memorandum and Order entered February 27, 2009, writing to address Warren’s objections. Warren appeals. (He later filed a motion for reconsideration, which the District Court denied. Warren has not separately appealed that ruling.)
II.
The District Court treated Warren’s petition as one under § 2254 instead of § 2241 because Warren is considered a “state prisoner” for habeas purposes. See Madley v. U.S. Parole Comm’n, 278 F.3d 1306, 1309 (D.C.Cir.2002). Because Warren’s petition does not actually request any relief, it is somewhat difficult to characterize his petition as one under either § 2254 or § 2241 (or even as a habeas petition, for that matter). Warren’s petition, however, clearly raises no challenge to his underlying conviction or sentence. Thus, to the extent that it can be construed as a habeas petition, we believe that it should be construed as a § 2241 petition challenging the execution of his sentence. See Burkey v. Marberry, 556 F.3d 142, 146 (3d Cir.2009).2
The only conceivable habeas claims that Warren’s petition might be read to assert are the second and third claims he raised in the District of Columbia Superior Court — i.e., that he should receive credit for time served and good behavior, and that he should be paroled. Warren notes that the United States Court of Appeals for the District of Columbia Circuit suggested that he might be able to raise them in a § 2241 petition in the Middle District of Pennsylvania. He has not actually done so in this petition, however, because he has not argued the merits of those claims or even requested any relief. Moreover, we already have affirmed the denial of both claims, and Warren’s most recent challenge to his denial of parole remains pending in the District Court. Accordingly, we will affirm.
. Warren already had raised those claims in federal habeas petitions under § 2241. The District Court denied both petitions. We affirmed the denial of the petition seeking sentencing credits in Warren v. Dodrill, 122 Fed.Appx. 599 (3d Cir.2005) (Table), and affirmed the denial of the petition seeking parole in Warren v. United States, 145 Fed.Appx. 715 (3d Cir.2005). In addition, Morris has since filed another § 2241 petition challenging his denial of parole. That petition remains pending at M.D. Pa. Civ. No. 08-cv-01657 as of the date of this opinion.
. Accordingly, Warren does not require a certificate of appealability to appeal (and if he did, we would decline to issue one for the reasons discussed herein). See Burkey, 556 F.3d at 146. We thus have jurisdiction under 28 U.S.C. § 1291 and 28 U.S.C. § 2253(a), and review the District Court's ruling under these circumstances de novo. See Vega v. United States, 493 F.3d 310, 314 (3d Cir.2007). The District Court applied Rule 4 of the Rules Governing Section 2254 Cases, but those rules apply to § 2241 petitions as well. See Rule 1(b), 28 U.S.C. foll. § 2254.
|
01-04-2023
|
11-05-2022
|
https://www.courtlistener.com/api/rest/v3/opinions/8473413/
|
OPINION
PER CURIAM.
Michael J. Piskanin, Jr., a Pennsylvania state inmate, commenced this pro se action in the United States District Court for the Eastern District of Pennsylvania by filing a pleading titled “Complaint Seeking to Compel Federal Officers to Perform Duty to Protect.” Piskanin claimed that he is a “former operative” for the Federal Bureau of Investigation, and that he is entitled to FBI “protection” from numerous public officials who allegedly have engaged in retaliatory acts, including the criminal prosecution of Piska-nin. Piskanin asked that the District Court direct the named defendants to transfer him to federal custody, conduct a full investigation, and “remove” to federal court “the criminal prosecutions at CR 0002072 and 2004.” Piskanin purported to seek this relief under the All Writs Act, 28 U.S.C. § 1651, and 28 U.S.C. §§ 1442(a)(1) and 1446.
The District Court granted Piskanin leave to proceed in forma pauperis and dismissed his complaint as legally frivolous. Viewing the complaint as seeking a writ of mandamus under 28 U.S.C. § 1361, the District Court held that Piskanin failed to show that he exhausted all other avenues of relief or that his right to issuance of the writ is clear and indisputable. The District Court declined to intervene in the pending criminal actions given the absence of any showing of circumstances warranting such relief.
*691Piskanin timely filed this appeal. We have appellate jurisdiction under 28 U.S.C. § 1291. Our Clerk advised the parties that this Court would consider summary action under Third Circuit Internal Operating Procedure Chapter 10.6. Piskanin has filed responses titled “Statement of Issues on Appeal with Informal Brief’ and “Motion to Allow Informal Brief.”1 After a careful review of these submissions and the record, we will summarily affirm.
The District Court was correct that Piskanin is not entitled to mandamus relief. A district court has jurisdiction under 28 U.S.C. § 1361 to issue a writ “to compel an officer or employee of the United States ... to perform a duty owed to the plaintiff,” but the writ may issue only for “a clear nondiscretionary duty.” Heckler v. Ringer, 466 U.S. 602, 616, 104 S.Ct. 2013, 80 L.Ed.2d 622 (1984). Piskanin’s alleged status as a “former operative” does not support a claim that he is owed a nondiscretionary duty from the FBI either to “protection” from or an investigation of the allegedly retaliatory acts taken against him. While 28 U.S.C. § 535 provides that the FBI “may investigate any violations of Federal criminal law involving Government officers and employees,” the decision to initiate an investigation is within the FBI’s discretion. See, e.g., Jafree v. Barber, 689 F.2d 640, 643 (7th Cir.1982).
Piskanin’s suggestion that the District Court erred in failing to acknowledge “removal” of the state criminal prosecutions under 28 U.S.C. § 1442(a)(1) is without merit. “To establish removal jurisdiction under section 1442(a)(1), a defendant ... must establish that (1) it is a ‘person’ within the meaning of the statute; (2) the plaintiffs claims are based upon the defendant’s conduct ‘acting under’ a federal office; (3) it raises a colorable federal defense; and (4) there is a causal nexus between the claims and the conduct performed under color of a federal office.” Feidt v. Owens Corning Fiberglas Corp., 153 F.3d 124, 127 (3d Cir.1998). Piskanin’s allegation that he was subjected to retaliation for his alleged reports to federal law enforcement about those who have allegedly conspired against him cannot support § 1442(a)(1) removal.2
We reject Piskanin’s contention that the District Court erred procedurally in dismissing his action prior to service. The District Court acted in accordance with its authority under 28 U.S.C. § 1915A, which requires a district court, “before docketing,” to review a prisoner civil action seeking redress from government employees, and to dismiss the case if it is frivolous. See 28 U.S.C. § 1915A(a)-(b).
Because this appeal presents “no substantial question,” 3d Cir. IOP Ch. 10.6, we will summarily affirm the District Court’s judgment.
. Insofar as Piskanin moves for permission to submit his "Motion to Allow Informal Brief" as a response to possible summary action, that motion is granted.
. To the extent that Piskanin also sought removal of his criminal prosecution under 28 U.S.C. § 1446, we note that the criminal matter to which he apparently refers, Lehigh County Court of Common Pleas No. 39-CR-0002027-2004, is no longer pending, and the District Court clearly has no authority to review the state courts' decision.
|
01-04-2023
|
11-05-2022
|
https://www.courtlistener.com/api/rest/v3/opinions/8473414/
|
OPINION
PER CURIAM.
Appellant Gary Ramsey, a federal prisoner proceeding pro se, appeals from the decision of the District Court denying in part his “Motion for Order Corrections to Presentence Report.” Ramsey was convicted in 2001 of numerous charges stemming from two armed bank robberies he orchestrated in 2000. His sentence was enhanced because of his career-offender status and aggravating factors related to the robberies. As a result, he received a sentence of 900 months’ imprisonment. Ramsey filed a direct appeal challenging his sentence under Apprendi v. New Jersey, 530 U.S. 466, 120 S.Ct. 2348, 147 L.Ed.2d 435 (2000), and we affirmed. United States v. Ramsey, 80 Fed.Appx. 168 (3d Cir.2003).
In 2004, Ramsey filed a motion under 28 U.S.C. § 2255, in which he raised 20 claims for relief. Among these, he argued that he should be resentenced because: 1) a state court vacated a conviction that served as a predicate to the career offender enhancement applied at sentencing; and 2) his sentence violated the constitutional rule of criminal procedure established in United States v. Booker, 543 U.S. 220, 125 S.Ct. 738, 160 L.Ed.2d 621 (2005), *693and that he should be able to present an argument based on that case on habeas review because he raised a similar claim based on Apprendi on direct appeal. The District Court denied relief, and we declined to issue a certificate of appealability. United States v. Ramsey, No. 06-1671 (order entered September 6, 2006).
Recently, Ramsey filed a motion in the District Court raising the two resentencing claims from his § 2255 motion and requesting that his pre-sentence investigation report be revised to reflect the change in his criminal history and its effect on his potential range under the Sentencing Guidelines. The District Court granted his request to revise the pre-sentence report, but denied the other claims as previously litigated and/or frivolous. Ramsey filed a timely appeal. The Clerk listed the case for possible summary action, and Ramsey then filed a motion for summary reversal, in which he rehashes his resen-tencing arguments and attacks the District Court’s decisions regarding his § 2255 case and the motion underlying this appeal.
We have jurisdiction pursuant to 28 U.S.C. § 1291. In denying Ramsey’s re-sentencing claims, the District Court reasoned that those claims were previously litigated and/or legally frivolous. Though we agree that those claims were already litigated, we note that the District Court actually lacked authority to entertain them at all. An attempt to advance claims that attack the validity of an underlying conviction following the denial of a § 2255 motion should be treated as a second or successive § 2255 motion. See Gonzalez v. Crosby, 545 U.S. 524, 530-31, 125 S.Ct. 2641, 162 L.Ed.2d 480 (2005); Pridgen v. Shannon, 380 F.3d 721, 727 (3d Cir.2004). Absent authorization from the Court of Appeals, the District Court lacks the authority to adjudicate a second or successive § 2255 motion. See Pridgen, 380 F.3d at 725 (citing § 2244(b)). Here, Ramsey’s motion clearly raised claims — already presented in his § 2255 motion — that attacked the validity of his sentence. Thus, the District Court properly declined to entertain what amounted to an unauthorized second § 2255 motion.
We may take summary action when an appeal presents no substantial question. See 3d Cir. LAR 27.4; 3d Cir. IOP 10.6. For the reasons given, Ramsey’s attempt to re-advance his sentencing claims was clearly meritless, as he did not have permission to proceed with a second or successive § 2255 motion.1
Accordingly, we will summarily affirm the judgment of the District Court. Ramsey’s own motion for summary reversal is denied.
. Even if Ramsey satisfied the requirements for filing a second § 2255 motion, which he clearly does not, see 28 U.S.C. § 2244(b)(2), his claims likely could not receive consideration because they have already been raised and rejected in § 2255 proceedings. See § 2244(b)(1) ("A claim presented in a second or successive habeas corpus application under section 2254 that was presented in a prior application shall be dismissed.”); United States v. Bendolph, 409 F.3d 155, 163 (3d Cir.2005) (holding that motions under § 2255 and § 2254 should be treated “the same absent sound reason to do otherwise”).
|
01-04-2023
|
11-05-2022
|
https://www.courtlistener.com/api/rest/v3/opinions/8473416/
|
OPINION
PER CURIAM.
Carl Anthony Knight appeals from an order of the United States District Court for the Western District of Pennsylvania, which denied his motion for reduction of sentence, filed pursuant to 18 U.S.C. § 3582(c)(2). Because no substantial question is presented by the appeal, we will grant Appellee’s motion for summary action, and will affirm the District Court’s judgment.
Knight’s motions and supplements in the District Court argued that his sentence should be reduced due to Amendment 706 to the United States Sentencing Guidelines (“U.S.S.G.” or “Guidelines”), which concerns sentencing for convictions involving crack cocaine. He also argued that on resentencing, the District Court should consider the Guidelines to be advisory, pursuant to United States v. Booker, 543 U.S. 220, 125 S.Ct. 738, 160 L.Ed.2d 621 (2005). The District Court determined that it lacked jurisdiction to reduce Knight’s sentence, as Amendment 706 would not lower Knight’s sentencing range. The District Court also rejected Knight’s argument that on resentencing it would have discretion to impose a sentence that varied from the Guidelines range, and noted that even if it had such discretion, it would not exercise it to reduce Knight’s sentence.
The District Court properly found that it lacked jurisdiction to reduce Knight’s *695sentence. Normally, a court may not modify a term of imprisonment once it is imposed. However, 18 U.S.C. § 3582(c)(2) creates a limited exception, noting that a court may reduce a term of imprisonment “in the case of a defendant who has been sentenced to a term of imprisonment based on a sentencing range that has subsequently been lowered by the Sentencing Commission ... after considering the factors set forth in section 3553(a) to the extent that they are applicable, if such a reduction is consistent with applicable policy statements issued by the Sentencing Commission.” The District Court properly held, citing U.S.S.G. § 1B1.10(a)(2)(B), that section 3582(c)(2) only applies if an applicable amendment lowers a defendant’s sentencing range. Dist. Ct. Op., dkt. # 211 at 2-3; see also United States v. Mateo, 560 F.3d 152, 154 (3d Cir.2009). As the District Court noted, at the time Knight was sentenced, an offense involving greater than 1.5 kilograms of cocaine base (the highest amount listed in the Drug Quantity Table at the time) would be assigned a base offense level of 38. U.S.S.G. § 2Dl.l(e) (1998). After amendment, an offense involving at least 1.5 kilograms but less than 4.5 kilograms of cocaine base is assigned a base offense level of 36, but an offense involving 4.5 kilograms or more of cocaine base is assigned level 38. U.S.S.G. § 2Dl.l(c) (2008). As Knight’s offense involved over 4.5 kilograms of cocaine base, the base offense level (and the resulting final adjusted offense level) would not change.1
Knight argues that the only drug quantity the District Court should have considered is the 1.8 kilograms of cocaine base, referenced in paragraph 30 of his presen-tence report (PSR), which was the amount seized on the day of his arrest. He notes that the Guidelines calculation portion of the PSR states that the drug quantity was “in excess of 1.5 kilograms of cocaine base,” see PSR ¶ 38, and then appears to conclude that this paragraph must refer only to the 1.8 kilogram amount referenced in paragraph 30. However, the PSR also notes that Knight “was responsible for the distribution of at least three kilograms of cocaine base a month in Erie.” PSR § 41. Indeed, in an appeal after a remand for further consideration based on Apprendi v. New Jersey, 530 U.S. 466, 120 S.Ct. 2348, 147 L.Ed.2d 435 (2000), we stated that “the jury [that convicted Knight] credited testimony from coconspirators including evidence that Knight bought approximately 2 kilograms of cocaine base for between $21,000 to $25,000 per kilogram every ten days” over the course of the conspiracy.2 United States v. Knight, 50 Fed.Appx. 565, 568 (3d Cir.2002). Because Knight’s offense clearly involved over 4.5 kilograms of cocaine base, Amendment 706 did not change his sentencing range. The District Court thus properly held that it lacked jurisdiction to reduce Knight’s sentence.3
*696For the foregoing reasons, we will grant the Government’s motion and summarily affirm the District Court’s judgment.4
. Knight does not appear to dispute the District Court's calculations, see Dist. Ct. Op. at 4, that after adjustments, the final offense level would remain 43. Instead, Knight disputes the District Court's characterization of the drug quantity involved, and argues that the District Court should consider the Guidelines advisory on resentencing.
. The superceding indictment charged a conspiracy taking place between January 1993 and November 14, 1997. PSR II 6.
.As the District Court lacked jurisdiction to consider Knight's motion, his argument regarding the application of Booker is moot. We note, however, that even if the District Court could have considered a reduction of sentence, our decision in United States v. Dillon, 572 F.3d 146 (3d Cir.2009) forecloses Knight’s argument that Booker would apply to render the Guidelines advisory on resentenc-ing. Dillon, 572 F.3d at 149.
. Knight’s motion to supplement the record is denied. We note that the material he submits was not before the District Court, and it is further irrelevant to the question of whether the District Court had jurisdiction to consider Knight’s motion for a reduction of sentence.
|
01-04-2023
|
11-05-2022
|
https://www.courtlistener.com/api/rest/v3/opinions/8473419/
|
OPINION OF THE COURT
SCIRICA, Chief Judge.
Remote Solution Co., Ltd. appeals from the District Court’s denial of its motion to vacate or modify an arbitral award. The underlying dispute involves an agreement between Remote Solution and Contec Corporation.1 The arbitrator determined Remote Solution had agreed to defend and indemnify Contec against certain patent infringement claims brought by third parties and awarded damages to Contec, as well as fees and costs. The District Court denied Remote Solution’s motion to vacate or modify the arbitral award and entered judgment for Contec. We will affirm.
I.
Remote Solution is a Korean electronics manufacturer. In February 1999, it entered into a Manufacturing and Purchase Agreement [“Agreement”] with Contec, a Delaware corporation with its principal place of business in New York. Contec sold remote-control devices to consumers and cable television providers. The agreement governed the production and sale of such devices according to specifications provided to Remote Solution by Contec. Section 3(c) of the Agreement states that Remote Solution would defend certain suits against Contec and indemnify Contec against damages:
Seller shall defend any suit or proceeding brought against Purchaser to the extent that such suit or proceeding is based on a claim that the Products constitute an infringement of any valid United States or foreign patent, copyright, trade secret or other intellectual property right and Seller shall pay all damages and costs awarded by final judgment against Purchaser.
One of the devices Contec purchased under the agreement was the RT-U49C. Contec sent specifications for the device and placed an order in the spring of 2000. About two years later, Universal Electronics, Inc. (“UEI”) sued Contec for patent infringement in the United States District Court for the District of Delaware, claiming the RT-U49C infringed its patents. The parties settled in May 2002. That same year, Philips Electronics North America and U.S. Philips Corporation (collectively “Philips”) sued Contec, also in the United States District Court for the District of Delaware, claiming the RT-U49C infringed its patents.2 In June 2003, Con-tec and another defendant entered into a Consent Judgment and Order stating they infringed two Philips patents. Contec incurred fees and costs in its defense against both patent-infringement claims. In resolution of the claims, it paid a settlement and royalties to both UEI and Philips.
Remote Solution’s failure to defend and indemnify Contec against the UEI and Philips actions prompted Contec to withhold payment from Remote Solution for devices shipped in January 2003. In June *6982003, Remote Solution filed a complaint in Korean court, seeking payment for the devices. In response, Contec demanded arbitration with the American Arbitration Association under Section 19 of the Agreement,3 and subsequently filed a motion in the United States District Court for the Northern District of New York to compel arbitration. The arbitrator determined it had standing to hear the dispute, the New York court entered judgment confirming the arbitrator’s standing,4 and the parties proceeded to arbitrate their dispute.
In arbitration, Remote Solution claimed the indemnification provision did not apply because Contec’s own specifications had caused the patent infringement. The arbitrator, however, concluded Remote Solution had agreed to indemnify Contec in Section 3(c) of the Agreement regardless of whether Contec provided its own specifications. That provision, moreover, displaced N.Y. U.C.C. § 2-312(3), which “[u]nless otherwise agreed,” would require a buyer who furnishes specifications to hold the seller harmless against claims “aris[ing] out of compliance with the specifications.”5 The arbitrator ordered Remote Solution to pay Contec $482,067.50. This figure represents $1,102,105.50, which Remote Solution owes Contec under section IV(G) of the Arbitrator’s damages award, reduced by $620,038, the amount Contec withheld from Remote Solution for devices shipped in January 2003. Of the total amount, $295,833 represents Remote Solution’s share of the Philips and UEI settlement and royalties;6 $270,206.32 is for Contec’s attorneys’ fees and expenses in the Philips and UEI actions; $304,099.57 represents Contec’s fees and costs in the Korean and New York actions, which the arbitrator determined were “clearly incurred in the conduct of this arbitration;” and $231,966.62 is for Remote Solution’s share of Contec’s fees and expenses associated with the arbitration itself.
Remote Solution filed a motion to vacate or modify the arbitral award in the United States District Court for the District of Delaware. The District Court denied the motion, and entered judgment for Contec.7 Remote Solution appeals.8
*699II.
Review of arbitration awards under the Federal Arbitration Act (“FAA”), 9 U.S.C. §§ 1-16, is “extremely deferential.” Metromedia Energy, Inc. v. Enserch Energy Servs., Inc., 409 F.3d 574, 578 (3d Cir.2005). We may disturb the award only when the arbitrator is “partial or corrupt” or “manifestly disregards, rather than merely erroneously interprets the law.” Id.9 Additionally, we may refuse to enforce an award that violates law or a “well-defined and dominant” public policy. Exxon Shipping Co. v. Exxon Seamen’s Union, 993 F.2d 357, 360 (3d Cir.1993). “[A] court’s refusal to enforce an arbitrator’s interpretation of [a] contradi ] is limited to situations where the contract as interpreted would violate ‘some explicit public policy that is ‘well defined and dominant, and is to be ascertained by reference to the laws and legal precedents and not from general considerations of supposed public interests.’ ” United Paperworkers Int'l Union v. Misco, Inc., 484 U.S. 29, 43, 108 S.Ct. 364, 98 L.Ed.2d 286 (1987) (quoting W.R. Grace & Co. v. Rubber Workers, 461 U.S. 757, 766, 103 S.Ct. 2177, 76 L.Ed.2d 298 (1983) (internal quotation marks omitted)).
Remote Solution challenges the arbitrator’s determination that it had agreed to defend and indemnify Contec against patent claims like the UEI and Philips claims. Remote Solution contends the award violates public policy because the arbitrator’s interpretation of the contract did not comport with proper principles of contract interpretation.10 (Br. of Appellant at 16) (citing Sweeney v. Hertz Corp., 292 A.D.2d 286, 740 N.Y.S.2d 19, 21 (N.Y.A.D. 1st Dep’t 2002) (requiring an indemnity provision in a car-rental contract to “clearly and unequivocally express an intent to indemnify [the rental company] against its own negligence”)). This argument suggests the arbitrator misconstrued the contract,11 not that the contract “as interpreted,” see Misco, 484 U.S. at 43, 108 S.Ct. 364, would violate a well-defined and dominant public policy. Remote Solution’s argument is that the arbitrator committed legal error, but this is not a sufficient basis to determine the award violates public policy.
Remote Solution additionally contends the arbitrator manifestly disregarded the law twice in its award of attorneys’ fees. First, it contends the arbitrator should have limited the award of attorneys’ fees and costs to the fees and costs it expended. Section 19 of the Agreement entitles the prevailing party “in any [arbitration] ... to recover from the other party all of its expenses, including, without limitation ... its attorneys fees incurred in the conduct *700of such arbitration but in no event will the recovery of its attorney’s fees be in excess of the actual cost of the other party’s attorney’s fees.” In the arbitration, Con-tec reported $231,966.62 of fees, compared to only $13,581.11 of fees for Remote Solution.12
The arbitrator acknowledged the contractual limitation on fees, but explained “it is equally plain ... that Remote Solution has breached its obligation of good faith and fair dealing.... ” Remote Solution’s fees were “unreasonably” and “inexplicably” low,13 the arbitrator determined, and the “unusually low billings here cannot provide a basis for negating the spirit of section 19” because Remote Solution had “arrang[ed] for the losing party’s attorney’s fees and expenses to approach zero.”14 The arbitrator considered the contractual limitation as well as the good faith and fair dealing claims. By “construing or applying the contract and acting within the scope of his authority,” Misco, 484 U.S. at 38, 108 S.Ct. 364, the arbitrator did not manifestly disregard the law.
Remote Solution’s second argument is likewise unavailing. It contends under New York law that the provision in Section 19 does not allow for recovery of pre-arbitration attorneys’ fees and costs because it does not “unmistakably” address these costs. But the arbitrator considered the language of the contract and determined these fees and costs were “incurred in the conduct of [the] arbitration.” Its determination was not in manifest disregard of the law.15
For the foregoing reasons we will affirm the judgment of the District Court and remand for a determination of pre-judgment interest.16
. Prior to this dispute, Remote Solution Co., Ltd. was Hango Electronics Co., Ltd. During the dispute, Contec changed its corporate name to FGH Liquidating Corp. Throughout this opinion, we refer to the parties and their predecessor and successor corporations as Remote Solution and Contec, respectively.
. Philips also named Compo Micro Tech, Inc. and Seoby Electronics, two other Contec suppliers, along with Remote Solution as defendants in the suit.
. Section 19 of the Agreement states: "In the event of any controversy arising with respect to this Agreement ... such controversy shall be determined by arbitration ... in accordance with the Commercial Arbitration Rules of the American Arbitration Association....”
. Contec Corp. v. Remote Solution Co., No. 1:03-CV-910, 2003 WL 25719933 (N.D.N.Y. Dec. 2, 2003), aff'd, 398 F.3d 205 (2d Cir.2005).
. The parties agree the contract is governed by New York law.
. Remote Solution was only one of multiple companies that supplied devices to Contec. The $295,833 award to Contec represents Remote Solution’s pro-rata share of the patent-infringement settlements and royalties.
. The District Court also ordered Remote Solution to remit to Contec 75% of its administrative costs and fees incurred in arbitration, and 25% of the arbitrator's fee under section IV(I) of the Arbitrator's damages award. We assume the District Court mistakenly ordered 25% of the arbitrator's fee to be remitted to Contec, as opposed to the 75% stated in the aforementioned section of the Arbitration damages award. We correct this typographical error; accordingly, Remote Solution shall remit to Contec 75% of its administrative costs and fees and 75% of the arbitrator’s fee.
. The District Court had jurisdiction under 28 U.S.C. § 1332. Although the case was initially dismissed for failure to meet the amount-in-controversy requirement, Remote Solution filed a renewed motion to vacate or modify the award. The renewed motion asserted claims involving the arbitral award that were not certainly less than the amount-in-controversy threshold. See St. Paul Mercury Indem. Co. v. Red Cab Co., 303 U.S. 283, 289, 58 S.Ct. 586, 82 L.Ed. 845 (1938) ("It must appear to a legal certainty that the claim is really for less than the jurisdictional amount to justify dismissal.”); Columbia Gas Transmission *699Corp. v. Tarbuck, 62 F.3d 538, 541 (3d Cir.1995). We have jurisdiction to review the appeal from a final judgment under 28 U.S.C. § 1291.
. “[A]s long as the arbitrator is even arguably construing or applying the contract and acting within the scope of his authority, that a court is convinced he committed serious error does not suffice to overturn his decision.” United Paperworkers Int’l Union v. Misco, Inc., 484 U.S. 29, 38, 108 S.Ct. 364, 98 L.Ed.2d 286 (1987). The typical result, which is “to affirm easily the arbitration award,” is consistent with the purpose behind the FAA. Dluhos v. Strasberg, 321 F.3d 365, 370 (3d Cir.2003).
. The District Court concluded the arbitrator's decision did not “constitute a ‘manifest disregard for the law.' " Remote Solution Co. v. FGH Liquidating Corp., 568 F.Supp.2d 534, 542-43 (D.Del.2008). On appeal, Remote Solution only challenges the interpretation of the contract on public policy grounds.
. We do not address whether this contention is correct, but note that the District Court determined the arbitrator had not manifestly disregarded the law because the cases Remote Solution relies upon do not clearly govern patent-infringement indemnification clauses in New York.
. Remote Solution also contends the limitation on fees applies to the New York action. In that action, it incurred $54,273.75 of costs, and Contec spent $288,779.30.
. Contec had cited to more than thirty instances where Remote Solution’s counsel did not bill for its time.
. As noted, the arbitrator awarded $231,966.62 for fees incurred in arbitration, even though Remote Solution claims to have incurred only $13,581.11. And the arbitrator awarded Contec an additional $288,779.30 for its fees in the New York action, although Remote Solution claims it only incurred $54,273.75 in that action.
. Contec has also filed a motion for damages under Federal Rule of Appellate Procedure 38. We will deny this motion. "If a court of appeals determines that an appeal is frivolous, it may ... award just damages and single or double costs to the appellee.” Fed. R.App. P. 38. Damages under Rule 38 are within the discretion of the court and awarded as justice requires. Beam v. Bauer, 383 F.3d 106, 109 (3d Cir.2004); Hilmon Co. (V.I.) Inc. v. Hyatt Int’l, 899 F.2d 250, 253 (3d Cir.1990). "[Ajttorneys have an affirmative obligation to research the law and to determine if a claim on appeal [has merit]”. Beam, 383 F.3d at 109 (internal citations omitted). The test is whether a reasonable attorney would conclude that the appeal is frivolous. Id.
Remote Solution's appeal to this Court, although unsuccessful, contains colorable claims. The arbitrator did not manifestly disregard the law, but some interpretative issues in the contract might have been reasonably construed in more than one way. While the arbitrator's decision receives great deference, Remote Solution's appeal is not so lacking in merit as to warrant a damages award under Rule 38.
.Contec has renewed its request for prejudgment interest beginning on January 25, 2006, which is the date the arbitrator ordered payment of the damages award. The District Court did not address this issue.
|
01-04-2023
|
11-05-2022
|
https://www.courtlistener.com/api/rest/v3/opinions/8473421/
|
OPINION OF THE COURT
PER CURIAM.
Wing Hong Kwong, proceeding pro se, petitions for review of an order of the Board of Immigration Appeals (“BIA”) vacating the Immigration Judge’s (“IJ”) decision deferring his removal under the Convention Against Torture (“CAT”). We will deny the petition for review.
Kwong is a native of Hong Kong and a citizen of China. He came to the United States in 1968 as a visitor and became a lawful permanent resident in 1970. In 1988, Kwong pleaded guilty in federal court to conspiracy to possess and export munitions without the requisite license and possession of unregistered firearms. Before sentencing, Kwong was indicted, tried, and convicted in 1992 of attempting to murder an Assistant United States Attorney. The latter conviction was reversed on appeal due to an erroneous jury instruction. United States v. Kwong, 14 F.3d 189, 195-96 (2d Cir.1994). On retrial, Kwong was convicted again. United States v. Kwong, 69 F.3d 663 (2d Cir.1995). Kwong received an aggregate sentence of 262 months in prison.
*702In 2006, the Immigration and Naturalization Service issued a notice to appear charging that Kwong was subject to removal because he was convicted of a crime of violence, which constitutes an aggravated felony under the immigration statute, and because he was convicted of a firearms offense. Kwong sought relief from removal under the CAT.1
In support of his CAT claim, Kwong testified that he worked for the Drug Enforcement Agency (“DEA”) from July 1988 to May 1989 as an undercover informant. Kwong explained that he went into Chinese communities, made contacts with criminal elements, particularly those involved in drug trafficking and organized crime, and reported back to the DEA. He stated that his work culminated in the prosecution of four major cases. Kwong further testified that he did similar work for the Federal Bureau of Investigation (“FBI”) from June 1989 to August 1991, and that his work resulted in several arrests.
Kwong stated that he feared that he would be tortured in China because individuals who were convicted as a result of his work have been deported to China and these individuals have extensive criminal roots there. Kwong testified that the FBI arrested a Chinese drug kingpin named Johnny Kong, whose associate attacked Kwong in prison in 1993 and told Kwong that he would wait for him in Hong Kong and kill him there. Kwong also testified that he has received other threats. He stated that in 1991, while working for the FBI, someone shot at his car.2 Kwong stated that an FBI agent recommended his placement in the federal witness protection program, but he was arrested before he could enter the program.
Kwong further testified that he believes that the Chinese government will protect him only if he agrees to work against American agencies. Kwong believes that he will be detained if he returns to China, and that he will be tortured if he refuses to cooperate with government officials. Kwong stated that Chinese officials will not care about his criminal record, but that they will be interested in the information that he can give them. Kwong believes that the Chinese government will know that he worked for United States law enforcement agencies due to the notoriety of his criminal case.
The IJ noted that there was no direct evidence of Kwong having provided intelligence or information to the FBI or DEA and stated that he was not willing to accept Kwong’s testimony on its face that he was as crucial to the government as he testified. The IJ also questioned whether Chinese officials would be aware that Kwong helped the government in 1991, and stated that Kwong’s alleged notoriety based on his criminal conviction cut against his claim that foreign governments would think that he cooperated with the United States government.
The IJ, however, recognized the widespread use of torture by China against detainees and prisoners reflected in the background evidence, and noted that it is rare to find direct evidence that an alien would likely be tortured in a proposed country of removal. The IJ stated that he *703would assume, and that he believed, that Kwong would be detained upon his arrival given that he has lived here for 40 years and has a serious criminal conviction, and given China’s propensity to engage in intrusions on the lives of its citizens and high incidence of torture. The IJ was not convinced that Chinese officials would know of Kwong’s cooperation with the United States government unless Kwong tells them, but he believed that, in light of the background evidence of torture, Kwong could be subjected to pain or suffering upon being interrogated. The IJ thus deferred Kwong’s removal.
The BIA sustained the Government’s appeal. The BIA agreed that the record reflected that torture remained widespread in Chinese detention facilities, but stated that fact only becomes relevant if Kwong established that it was likely that he would be detained. The BIA stated that the only evidence that China may detain criminal returnees was Kwong’s testimony that he had a friend who was released from prison and returned to China, that the Chinese government detained him, and that Kwong never heard from him again. The BIA found this evidence insufficient, noting that the basis for Kwong’s assertion that the friend was detained was unclear, and that Kwong gave no details about the friend’s circumstances to indicate whether the friend was similarly situated to him.
The BIA further stated that nothing in the record supported Kwong’s statement that the Chinese government would find out that he worked for the FBI, indicated that China is likely to detain returnees who lived in the United States for a long time, or showed that China has detained or is likely to detain criminal returnees. The BIA concluded that the IJ’s finding that Kwong is likely to be detained was clearly erroneous. The BIA further concluded that, even if Kwong had shown that he is likely to be detained, he had not shown that Chinese authorities would have a specific intent to torture him. The BIA decided that Kwong failed to meet his burden of proving that it is more likely than not that the Chinese government will torture him. The BIA also decided that Kwong did not meet his burden of proof on his CAT claim based on harm by organized crime figures in China. This petition for review followed.
We have jurisdiction pursuant to 8 U.S.C. § 1252(a)(1). Because the basis for Kwong’s removal is his conviction for an aggravated felony, our jurisdiction is limited under the Real ID Act to constitutional claims and questions of law. See 8 U.S.C. § 1252(a)(2)(C) — (D); Pierre v. Attorney General, 528 F.3d 180, 184 (3d Cir.2008).
Kwong has not presented any constitutional claims or questions of law in his brief for our review. Rather, Kwong challenges the BIA’s assessment of the evidence and seeks to bolster his claim with materials and information that are not part of the administrative record. These arguments are not properly before us. Even if we had jurisdiction to consider the evidence supporting Kwong’s CAT claim, our review is limited to the evidence contained in the administrative record. 8 U.S.C. § 1252(b)(4)(A); Berishaj v. Ashcroft, 378 F.3d 314, 330 (3d Cir.2004).3
Accordingly, we will deny the petition for review. Kwong’s motion to file his *704brief under seal and motions to supplement the record are denied.
. The IJ initially terminated the proceedings without prejudice because Kwong's earliest release date was not until mid-May 2010, and the IJ concluded that his CAT claim was not ripe. The BIA sustained the Government’s appeal, finding that the Government was prejudiced by the termination.
. Although Kwong testified that the shooting was in 2001, he clarified on cross-examination that he worked for the FBI until 1991. It appears that the shooting was in 1991. Similarly, Kwong initially testified that the prison attack occurred in 2003, but he clarified on cross-examination that the attack was in fact in 1993.
. Kwong does assert that the BIA "incorrectly used the standard set forth in 8 C.F.R. § 1208.18(a)(1) to makes its assessment on whether [he] would be tortured with the acquiescence of the Chinese authorities” and appears to assert that the BIA applied a higher burden of proof than Congress intended. See Pet’r’s Br. at 12. Kwong has not developed arguments on these points or shown that the BIA erred.
|
01-04-2023
|
11-05-2022
|
https://www.courtlistener.com/api/rest/v3/opinions/8473422/
|
OPINION OF THE COURT
NYGAARD, Circuit Judge.
Because our opinion is wholly without precedential value, and because the parties and the District Court are familiar with its operative facts, we offer only an abbreviated recitation to explain why we will affirm the judgment of conviction and sentence of the District Court.
Ephraim Barr was convicted by the District Court for his role in a conspiracy to traffic in counterfeit credit cards and to make and possess counterfeit checks. Barr also received a sentence enhancement for being a leader or organizer in the conspiracy. Barr presents four issues challenging evidentiary rulings made by the District Court. He also challenges the sentence enhancement.
First, Barr argues that the District Court incorrectly denied his motion to suppress statements he made during interviews with law enforcement on two occasions after waiving Miranda rights. “This Court reviews the District Court’s denial of a motion to suppress for clear error as to the underlying factual findings and exercises plenary review of the District Court’s application of the law to those facts.” United States v. Perez, 280 F.3d 318, 336 (3d Cir.2002).
With regard to the first interview, Barr alleges that “his invocation of his Fifth Amendment right to remain silent required the police officer to end the interrogation.” Barr was advised of his Miranda rights by law enforcement in both a verbal and written form, and he memorialized his waiver of these rights in writing. He invoked his Fifth Amendment right to silence in response to three of twenty-one questions, but responded to all of the other questions in the one-hour interview. There is no evidence to suggest that Barr made a clear, unequivocal reassertion of his right to silence. The District Court did not clearly err in concluding that Barr “understood all of his rights, did not want to remain silent, did not want to talk with a lawyer before the interview or have a lawyer present for the interview, and was willing to answer questions voluntarily and without coercion.”
With regard to the second interview, Barr claims that testimony offered by an Agent was inadmissible because there is no evidence that Barr made a knowing and voluntary waiver of his Miranda rights. The agent apprised Barr of his Miranda rights, reading from a standard form. After the Miranda rights were read to him, Barr signed on the second page of the form to indicate that he had been advised of and understood his rights. Moreover, after the interview, Barr wrote two letters reiterating his desire to cooperate with authorities. We cannot find any evidence on this record that Barr’s waiver was either involuntary or shrouded in an ignorance of his right. We do not find any error in the District Court’s assessment that testimony of the Agent regarding that interview was admissible.
Barr’s third argument on appeal focuses upon the admissibility of both in-court and out-of-court identifications of Barr made by a witness. Barr challenges the reliability of this identification based on the fact that the photo array was unduly suggestive. We agree with the District Court’s conclusion that, given the amount of time that the witness had to observe Barr during the commission of the crime, *706and the temporal proximity of that experience to her first look at photos, sufficient indicia of a reliable identification were present to satisfy any Due Process concerns about the admissibility of this evidence.
Fourth, Barr asserts that probable cause did not exist to support a search warrant for his residence. The District Court concluded that the search warrant was properly based upon the police officers’ lawful plain view observations into the house and around the trailer parked on his property. We agree.
Finally, with regard to Barr’s objections to his organizer/leader sentence enhancement we note that he does not challenge the District Court’s finding that there were six culpable participants involved. Barr was found to be in the business that used the sort of merchandise obtained in this fraud, and these items were found at his residence. Additionally, he was found to exercise control over the means of conducting the fraud. We conclude that the District Court did not err in applying the enhancement to Barr’s sentence.
For these reasons, we will affirm the District Court’s judgment of conviction and sentence.
|
01-04-2023
|
11-05-2022
|
https://www.courtlistener.com/api/rest/v3/opinions/8473424/
|
OPINION OF THE COURT
PER CURIAM.
Petitioner Phik Ha Lie, a native and citizen of Indonesia, entered the United States on May 27, 2000 on a visitor’s visa, and overstayed. She was served with a Notice to Appear for removal proceedings, alleging that she was removable under Immigration and Nationality Act (“INA”) § 237(a)(1)(B), 8 U.S.C. § 1227(a)(1)(B), as an alien present in the United States in violation of the law. She filed an application for asylum under INA § 208(a), 8 U.S.C. § 1158(a), withholding of removal under INA § 241(b)(3), 8 U.S.C. § 1231(b)(3), and protection under the Convention Against Torture, 8 C.F.R. §§ 1208.16(c), 1208.18, claiming persecution on the basis of her Chinese ethnicity and Christian religion.1 On March 1, 2004, an Immigration Judge denied Lie’s claim for relief and protection, and, on June 23, 2006, the Board of Immigration Appeals affirmed the finding that the incidents Lie experienced in Indonesia did not rise to the level of persecution. The Board also agreed that Lie had not established a well founded fear of future persecution. Lie filed a petition for review, and, on October 9, 2007, we denied it. See Lie v. Mukasey, 250 Fed.Appx. 496 (3d Cir.2007).
On November 13, 2007, Lie and her husband filed an untimely motion to reopen removal proceedings with the Board, contending that their daughter’s recent grant of asylum (on March 28, 2007) was a changed personal circumstance which merited reopening proceedings under INA § 208(a)(2)(D), 8 U.S.C. § 1158(a)(2)(D). *708Lie argued that she need not file a motion to reopen in order to submit a successive asylum application. The Department of Homeland Security opposed the motion.
On February 5, 2008, the Board denied the untimely motion to reopen, holding that the couple’s daughter’s asylum grant did not represent changed country conditions so as to create an exception to the 90-day time limit for filing a motion to reopen, see 8 C.F.R. § 1003.2(c)(3)(ii); Matter of C-W-L-, 24 I. & N. Dec. 346 (BIA 2007). The Board also declined to reopen removal proceedings through its sua sponte authority, noting that the daughter’s asylum grant was not an “exceptional situation” warranting such action, see Matter of J-J-, 21 I. & N. Dec. 976 (BIA 1997). Phik Ha Lie has timely petitioned for review of this decision.
We will deny the petition for review. We have jurisdiction under INA § 242(a), 8 U.S.C. § 1252(a). The Board’s jurisdiction arose under 8 C.F.R. § 1003.2(c), which grants it authority to adjudicate motions regarding matters it has previously considered. We review the Board’s denial of a motion to reopen for abuse of discretion. Immigration & Naturalization Serv. v. Abudu, 485 U.S. 94, 105, 108 S.Ct. 904, 99 L.Ed.2d 90 (1988). Under this deferential standard of review, we will not disturb the Board’s decision unless it is arbitrary, irrational, or contrary to the law. See Guo v. Ashcroft, 386 F.3d 556, 562 (3d Cir.2004).
The regulation governing motions to reopen provides that: “A motion to reopen proceedings shall state the new facts that will be proven at a hearing to be held if the motion is granted and shall be supported by affidavits or other evidentiary material.... A motion to reopen proceedings shall not be granted unless it appears to the Board that evidence sought to be offered is material and was not available and could not have been discovered or presented at the former hearing....” 8 C.F.R. § 1003.2(e)(1). Although a motion to reopen “must be filed no later than 90 days after the date on which the final administrative decision was rendered in the proceeding sought to be reopened,” 8 C.F.R. § 1003.2(c)(2), this time limitation does not apply if the alien seeks reopening “based on changed circumstances arising in the country of nationality or in the country to which deportation has been ordered, if such evidence is material and was not available and could not have been discovered or presented at the previous hearing.” 8 C.F.R. § 1003.2(c)(3)(ii). See also 8 U.S.C. § 1229a(c)(7)(C)(ii).
Because Lie’s motion was untimely, being more than a year late, her motion had to be based on changed country conditions for Chinese Christians in Indonesia. See 8 U.S.C. § 1229a(c)(7)(C)(ii). Lie did not base her claim on changed country conditions, and, in fact, Lie does not challenge the Board’s finding that she failed to establish changed country conditions in Indonesia. Instead, she contends that she should be able to reopen proceedings, or file a successive asylum application, based on changed personal circumstances, in accordance with due process and the 1951 Refugee Convention and 1967 Refugee Protocol. Furthermore, she contends, the Board’s interpretation of the INA and the implementing regulations in Matter of C-W-L-, 24 I. & N. Dec. 346, is not entitled to Chevron deference, see Chevron U.S.A. Inc. v. Natural Res. Def. Council, Inc., 467 U.S. 837, 104 S.Ct. 2778, 81 L.Ed.2d 694 (1984). Lie contends that INA § 208(a)(2)(D), 8 U.S.C. § 1158(a)(2)(D), standing alone, is a basis for filing an additional asylum application, even though she is currently under an order of removal and barred by INA § 240(c)(7)(C)(ii), 8 U.S.C. § 1229a(c)(7)(C)(ii), from filing such an application, except where accompanied *709by a timely motion to reopen based on changed country conditions.
We reject this argument as unpersuasive. Section 208(a)(2)(D) of the INA states:
An application for asylum of an alien may be considered, notwithstanding subparagraphs (B) and (C), if the alien demonstrates to the satisfaction of the Attorney General either the existence of changed circumstances which materially affect the applicant’s eligibility for asylum or extraordinary circumstances relating to the delay in filing an application within the period specified in subparagraph (B).
8 U.S.C. § 1158(a)(2)(D).2 Regulations implementing INA § 208(a)(2)(D) define “changed circumstances” to include, in pertinent part, not only changes in conditions in the applicant’s country, but also “[cjhanges in the applicant’s circumstances that materially affect the applicant’s eligibility for asylum,” including “changes in applicable U.S. law and activities the applicant becomes involved in outside the country of feared persecution that place the applicant at risk,” 8 C.F.R. § 1208.4(a)(4)(i)(B) (2007). We accept for the sake of argument that the deadline waiver standard of “changed circumstances” for a successive asylum application is likely broader than the deadline waiver standard of “changed country conditions” for a motion to reopen.
The Board, however, has concluded that aliens already under a final order of removal are bound by INA § 240’s filing deadline for motions to reopen. In Matter of C-W-L-, 24 I. & N. Dec. 346, the Board held that a successive and untimely asylum application filed by an alien under a final order of removal must satisfy the requirements for a motion to reopen. This decision of the Board has precedential effect and is entitled to deference under Chevron, 467 U.S. 837, 104 S.Ct. 2778, so long as it is not arbitrary, capricious, or contrary to the statute. See id. at 844, 104 S.Ct. 2778. See also Immigration & Naturalization Serv. v. Aguirre-Aguirre, 526 U.S. 415, 424, 119 S.Ct. 1439, 143 L.Ed.2d 590 (1999) (Chevron deference applies to INA). A reasonable interpretation of a provision or provisions in the statute made by an administrator of an agency is afforded substantial deference. Thomas Jefferson Univ. v. Shalala, 512 U.S. 504, 512, 114 S.Ct. 2381, 129 L.Ed.2d 405 (1994).
Just as we did recently in Liu v. Att’y Gen. of U.S., 555 F.3d 145 (3d Cir.2009), we hold that the Board’s interpretation of the relationship between INA § 208(a)(2)(D), 8 U.S.C. § 1158(a)(2)(D), and INA § 240(e)(7)(C)(i), 8 U.S.C. § 1229a(c)(7)(C)(i), is reasonable. The issue for the Board in Matter of C-W-L- as in Lie’s case, was whether to entertain the application as a free-standing claim for asylum subject to the more liberal exception in section 1158(a)(2)(D), and without regal’d to the time limit on motions to reopen found in section 1229a(c)(7)(C)(i). This required the Board to “consider the relationship between sections 208(a)(2)(D) and 240(c)(7)(C)(ii) of the Act and the corresponding regulations that implement those sections of the statute.” 24 I. & N. Dec. at 348. The Board explained that INA §§ 208(a)(2)(B)-(C) of the Act provide that an alien may file only one claim for asylum, which must be filed within one year of his or her arrival in the United States. 8 U.S.C. § 1158(a)(2)(B)-(C). Exceptions to the filing deadline and the prohibition on refiling after the denial of an asylum application do not apply “if the *710alien demonstrates to the satisfaction of the Attorney General either the existence of changed circumstances which materially affect the applicant’s eligibility for asylum or extraordinary circumstances relating to the delay in filing an application within the period specified.” INA § 208(a)(2)(D), 8 U.S.C. § 1158(a)(2)(D).
Section 240(c)(7)(C)(ii) of the Act, 8 U.S.C. § 1158(c)(7)(C)(ii), on the other hand, was enacted as part of the Illegal Immigration Reform and Immigrant Responsibility Act of 1996 (“IIRIRA”), and was intended to curb abuse of the asylum process. Matter of C-W-L-, 24 I. & N. Dec. at 349. It provided for one motion to reopen filed within 90 days of the final order of removal (except in some limited circumstances not applicable here). However, if the purpose of the motion to reopen is to file a successive asylum application, the 90-day deadline will be excused so long as the alien can show “changed country conditions arising in the country of nationality or the country to which removal has been ordered, if such evidence is material and was not available and would not have been discovered or presented at the previous proceeding.” INA § 240(c)(7)(C)(ii), 8 U.S.C. § 1229a(c)(7)(C)(ii).
The Board surmised that section 208(a)(2)(D) of the Act was silent on the issue of reopening, “most likely because the requirement of an accompanying motion to reopen once a final order of removal has been entered is clearly set forth in other parts of the statutory and regulatory scheme.” Matter of C-W-L-, 24 I. & N. Dec. at 352. Moreover, “the statutory bars that are exempted by sections 208(a)(2)(D) are separate from, and apply principally at an earlier stage of proceedings than, the 90-day reopening provisions in both the statute and regulations.” Id. at 353 (citations omitted). Accordingly, the Board reasoned, the “reopening restrictions are best viewed as additional limitations on the ability of aliens to use either asylum or withholding claims as a means of reopening final orders of exclusion, deportation, or removal.” Id.
In Liu, 555 F.3d 145, we found this interpretation reasonable and entitled to Chevron deference. It is reasonable for the Board to conclude that an alien who has ignored her final order of removal is not entitled to avoid the time-limit for filing a motion to reopen by framing her request for relief as a successive asylum application under INA § 208 on the basis of changed personal circumstances. Absent a showing of changed conditions in Indonesia, Lie is bound by the 90-day deadline for filing a motion to reopen. We defer to the Board’s construction under Chevron, concluding that it is a permissible reading of the statutory provisions. Liu, 555 F.3d at 150 (holding that 8 U.S.C. § 1158(a)(2)(D) “must be applied in harmony with 8 U.S.C. § 1229a(e)(7)(C) and the regulations at 8 C.F.R. §§ 1003.2(c)(2), 1003.2(c)(3)(h), and 1003.23(b)).”
As we noted in Liu, 555 F.3d at 151, we have “much company” because other courts of appeals are in agreement. In Yuen Jin v. Mukasey, 538 F.3d 143 (2d Cir.2008), for example, the Court of Appeals for the Second Circuit, agreeing with the Court of Appeals for the Seventh Circuit, held that aliens under a final order of removal are required to show changed country conditions, rather than changed personal circumstances. See id. at 152. The court explained:
Any potential tension between [8 C.F.R. § 1208.4(a)(4)’s] broad provision that changed country conditions or changed personal circumstances can support a new asylum application under § 1158(a)(2)(D) and the BIA’s determination that only changed country conditions can support a new asylum appli*711cation filed by an alien under a final removal order is easily resolved. As the Seventh Circuit noted in Cheng Chen, § 1158(a)(2)(D) “says nothing about the situation in which the applicant has already been ordered removed, the order has become final, and the time for reopening the removal proceeding has expired.” Thus, ... 8 U.S.C. § 1229(a)(c)(7)(C), which delineates the requirements for such a motion when a final order has issued, can properly be read as filling this gap by setting forth the mechanism by which an alien may file a successive asylum petition when the alien has already been ordered removed.
Id. at 152-53 (citing Cheng Chen v. Gonzales, 498 F.3d 758, 760 (7th Cir.2007)).
In short, the Board’s interpretation gives meaning to both 8 U.S.C. § 1229a(c)(7)(C) and 8 U.S.C. § 1158(a)(2)(D). Liu, 555 F.3d at 150. A statute should be construed so as to give effect to all of its provisions; it should not be construed so as to render a portion of it superfluous, void, or meaningless. Disabled in Action of Pa. v. Southeastern Pa. Transp. Authority, 539 F.3d 199, 211 (3d Cir.2008). An alien may file a successive asylum application based on changed personal circumstances or changed country conditions, pursuant to 8 U.S.C. § 1158(a)(2)(D), at any time during proceedings before the entry of a final order of removal, or within the 90-day deadline for a motion to reopen. Outside of those circumstances, changed country conditions under 8 U.S.C. § 1229a(c)(7)(C)(ii) must be shown. Liu, 555 F.3d at 150-52; Yuen Jin, 538 F.3d at 152-53; Cheng Chen, 498 F.3d at 760. See also Chen v. Mukasey, 524 F.3d 1028, 1032-33 (9th Cir.2008) (deferring to Board’s interpretation in Matter of C-W-L- and noting that “[fits interpretation harmonizes the competing exceptions”); Hui Zheng v. Holder, 562 F.3d 647, 654 (4th Cir.2009) (same); Zhang v. Mukasey, 543 F.3d 851, 858-59 (6th Cir.2008) (same); Zheng v. Mukasey, 509 F.3d 869, 872 (8th Cir.2007) (regulatory history of 8 C.F.R. § 1208.4 does not support assertion of “intent to weaken the requirements of a motion to reopen when an alien under a final order of removal seeks to file an untimely or successive asylum application”).
Lie contends that her due process rights and rights under international law have been violated. With respect to her due process argument, we agree with the Second Circuit that an alien who has already filed one asylum application, been adjudicated removable after a full and fair hearing and ordered deported, and who has nevertheless remained in the country illegally, does not have a liberty or property interest in a discretionary grant of asylum. Yuen Jin, 538 F.3d at 157. Cf. Mudric v. Att’y Gen. of U.S., 469 F.3d 94, 99 (3d Cir.2006) (in making request for immigration benefits aliens have only those statutory rights granted by Congress). The fact remains that Lie has remained in the United States in violation of the law, see 8 U.S.C. § 1253(a)(1)(A) (setting forth penalties for an alien who “willfully fails or refuses to depart from the United States within a period of 90 days from the date of the final order of removal under administrative processes”). Furthermore, due process does not prevent the Attorney General from setting reasonable procedures and limits on successive asylum applications. Cf. Sukwanputra v. Gonzales, 434 F.3d 627, 631-32 (3d Cir.2006) (it does not violate due process for Congress to impose reasonable limitations on filing of naturalization petitions). We note that the time and number limitations do not apply when the Department of Homeland Security does not oppose the motion to reopen, see 8 C.F.R. § 1003.2(c)(3)(iii) (time and number limita*712tions do not apply where motion to reopen is “[ajgreed upon by all parties and jointly filed”), and it is also within the Board’s discretion to reopen proceedings sua sponte if it determines, based on an alien’s particular circumstances, that reopening is warranted, see 8 C.F.R. § 1003.2(a) (“The Board may at any time reopen or reconsider on its own motion any case in which it has rendered a decision.”). Avenues for relief thus remain for aliens whose personal circumstances have changed more than 90 days after an order of removal becomes final.
Lie’s argument based on a violation of international law is similarly unavailing. The United States is a signatory to the 1967 United Nations Protocol Relating to the Status of Refugees, which incorporated the 1951 Convention. The Attorney General implemented l-egulations to comply with its terms, Immigration & Naturalization Serv. v. Stevic, 467 U.S. 407, 428-30, n. 22, 104 S.Ct. 2489, 81 L.Ed.2d 321 (1984), and, in 1980, Congress amended the INA by passing the Refugee Act, which brought U.S. domestic law into conformity with its treaty obligations under the 1967 Protocol, see id. at 421, 104 S.Ct. 2489. “The 1967 Protocol is not self-executing, nor does it confer any rights beyond those granted by implementing domestic legislation.” Al-Fara v. Gonzales, 404 F.3d 733, 743 (3d Cir.2005) (citing Stevic, 467 U.S. at 428 n. 22, 104 S.Ct. 2489). See also Sukivanputra, 434 F.3d at 631-32 (1951 Convention provides no enforceable rights beyond those granted by INA). Furthermore, Lie has presented no evidence that the Board’s interpretation of the statutory provisions at issue here conflicts with principles of international law.
Accordingly, Lie, who was subject to a final order of removal, was required to file a motion to reopen to pursue a new asylum application. Because she filed her motion to reopen more than ninety days after the entry of her final removal order, she was required to demonstrate that conditions in Indonesia had changed. She requested reopening and asylum based on a grant of asylum to her daughter, and concedes that this is evidence of changed personal circumstances, not changed country conditions within the meaning of 8 U.S.C. § 1229a(e)(7)(C)(ii). The Board thus did not abuse its discretion in denying her motion to reopen. In addition, we are without jurisdiction to review the Board’s decision declining to exercise its sua sponte authority to reopen removal proceedings. See Calle-Vujiles v. Ashcroft, 320 F.3d 472, 475 (3d Cir.2003).
For the foregoing reasons, we will deny the petition for review.
. Lie's husband, Pek Siong Lo, was named as a derivative applicant on his wife's asylum application.
. Ordinarily, an asylum application must be filed within one year of the alien's arrival in the United States, see id. at § 1158(a)(2)(B), and an alien who has previously applied and been turned down, may not re-apply, see id. at § 1158(a)(2)(C).
|
01-04-2023
|
11-05-2022
|
https://www.courtlistener.com/api/rest/v3/opinions/8473428/
|
OPINION OF THE COURT
FUENTES, Circuit Judge:
Mahesh Tejwani, a citizen and native of India, was convicted of money laundering in violation of New York law. As a result, Tejwani was ordered removed as an alien convicted of a crime of moral turpitude within five years of admission. 8 U.S.C. § 1227(a)(2)(A)(i)(I). In affirming this order, the Board of Immigration Appeals (“BIA”) held that Tejwani’s New York money laundering offense involved deception and the concealment of criminal conduct from the government, thus constituting a crime of moral turpitude. Tejwani petitions for review of this determination and further argues that the BIA erred in applying new law retroactively in ruling on his appeal.
We defer to the BIA’s definition of moral turpitude and its use of the categorical approach, which focuses on the statute and the record of conviction, rather than the specific conduct committed by the alien. However, because we find that deception and the concealment of criminal conduct from the government are not required to prove money laundering under New York law, and because we find that money laundering was not a crime of moral turpitude under the BIA’s binding case law at the time of Tejwani’s conviction, we will grant the petition for review.
I.
Tejwani was admitted to the United States as a lawful permanent resident in March 1995. He is married to a United States citizen and has two United States citizen children, now teenagers. On November 30, 2000, Tejwani was convicted of two counts of money laundering in violation of N.Y. Penal Law § 470.10 (1999) (“the money laundering statute”).
By pleading guilty, Tejwani admitted to engaging in a financial transaction involving U.S. currency to conceal or disguise the nature, location, source, or ownership of drug proceeds, knowing that the monetary instruments involved were the proceeds of some illegal activity. Tejwani did not admit that he knew that the illegal activity was drug trafficking. (A.R. at 281, 287-88.) He was sentenced to a term of imprisonment.
In October 2001, the Immigration and Naturalization Service served Tejwani with a Notice to Appear charging him with removability pursuant to 8 U.S.C. § 1227(a)(2)(A)(iii) as an alien convicted of *721an aggravated felony. This charge was dismissed and replaced with a charge that Tejwani was removable under 8 U.S.C. § 1227(a)(2)(A)(i)(I) as an alien convicted of a crime of moral turpitude committed within five years of admission.2 On June 20, 2003, the Immigration Judge (“IJ”) found that the offenses were crimes of moral turpitude and ordered Tejwani removed. Tejwani appealed and the BIA affirmed without opinion in September 2004. Tejwani then petitioned this Court for review. Another panel of this Court remanded, holding that whether money laundering constituted a crime of moral turpitude was an issue of first impression which should not have been resolved in a summary order. Tejwani v. Att’y Gen. of the U.S., 159 Fed.Appx. 412, 413 (3d Cir.2005). Following remand, in a decision issued in February 2007, the BIA once again affirmed the IJ.
Tejwani filed a second petition challenging this determination. Tejwani also filed a motion to reopen, arguing that he should be permitted to apply for cancellation of removal under 8 U.S.C. § 1229b(a)(2) (providing that a lawful permanent resident is eligible for cancellation of removal only after seven years of continuous residence and five years as a lawful permanent resident). Specifically, Tejwani argued that he was eligible for cancellation of removal because more than seven years had passed since he committed his offense. He further argued that proceedings should be terminated to allow him to pursue an application for naturalization. His motion to reopen was denied by the BIA and Tejwani filed a third petition for review. Tejwani’s second and third petitions for review have been consolidated.
In its February 2007 decision, the BIA correctly stated that the categorical approach applies to evaluating whether an offense under the money laundering statute constitutes a crime of moral turpitude. In re Tejwani, 24 I. & N. Dec. 97, 98 (B.I.A.2007). The BIA reasoned that an act which obstructs the function of a government agency “by deceit, graft, trickery, or dishonest means is a crime involving moral turpitude.” Id. The BIA also relied on its 2006 case, In re Robles-Urrea, 24 I. & N. Dec. 22, 25-26 (B.I.A.2006), for the proposition that “[ajffirmative acts to conceal criminal activity and impede law enforcement have been found to be crimes involving moral turpitude.” Id. The BIA further reasoned that money laundering requires proof of intent to conceal rather than mere failure to report, as in financial structuring. Id. at 99. Again relying on Robles-Urrea for the proposition that concealing criminal conduct is a crime of moral turpitude “regardless of whether the concealed offense is a crime involving moral turpitude,” the BIA held that money laundering was categorically a crime of moral turpitude. Id.
II.
We have jurisdiction to review the BIA’s orders pursuant to 8 U.S.C. § 1252(a). Our review of legal issues is plenary, subject to Chevron deference. Knapik v. Ashcroft, 384 F.3d 84, 87 (3d Cir.2004). We afford deference when an agency construes or interprets a statute it administers. Id. Thus, “we defer, under Chevron, ‘to the BIA’s definition of moral turpitude,’ as well as the BIA’s determination that a certain crime involves moral turpitude.” Mehboob v. Att’y Gen. of U.S., 549 F.3d 272, 275 (3d Cir.2008) (quoting Knapik, 384 F.3d at 88 n. 3).
Analyzing the elements of a state criminal statute does not implicate the BIA’s expertise. Knapik v. Ashcroft, 384 F.3d *72284, 88 (3d Cir.2004). Accordingly, “[n]o deference ... is given to the BIA’s parsing of the elements of the underlying crime.” Mehboob, 549 F.3d at 275; see also Partyka v. Att’y Gen. of the U.S., 417 F.3d 408, 411 (3d Cir.2005) (“[W]e owe no deference to the Id’s interpretation of a state criminal statute.”). We therefore analyze the elements of an underlying crime de novo. Knapik, 384 F.3d at 88.
Tejwani argues that the BIA erred in concluding that money laundering, evaluated under the categorical approach, met the definition of moral turpitude used by the BIA. Tejwani also argues that the BIA erred in applying Robles-Urrea, a case it decided over six years after Tejwani’s offense was complete, rather than the law that existed at the time of Tejwani’s guilty plea.
1.
In this case the BIA used the following definition of moral turpitude:
Moral turpitude is conduct that is inherently base, vile, or depraved, and contrary to the accepted rules of morality and the duties owed to other persons, either individually or to society in general. It generally involves conduct that is contrary to justice, honesty, or morality. A crime that impairs and obstructs a function of a department of government by defeating its efficiency or destroying the value of its lawful operations by deceit, graft, trickery, or dishonest means is a crime involving moral turpitude. Affirmative acts to conceal criminal activity and impede law enforcement have been found to be crimes involving moral turpitude. Crimes containing as an element a specific intent to defraud always involve moral turpitude, but we have also determined that certain crimes are inherently fraudulent and involve moral turpitude even though they can be committed without proof of a specific intent to defraud.
As set forth above, we must defer to the BIA’s definition of moral turpitude if it is reasonable. For the purposes of this case, we assume that this definition was reasonable.
2.
We apply the categorical approach to evaluating whether an offense meets the definition of moral turpitude. See Jean-Louis v. Attorney General of the United States, 582 F.3d 462, 482 (3d Cir.2009) (rejecting the Attorney General’s modified “realistic probability test” advanced in Matter of Cristoval Silva-Trevino, 24 I. & N. Dec. 687, 706-708 (A.G.2008), and affirming the historically applied categorical approach). In so doing, we consider the criminal statute and the record of conviction, not the alien’s conduct. Partyka, 417 F.3d at 411-12; Knapik, 384 F.3d at 88, 90-91; De Leon-Reynoso v. Ashcroft, 293 F.3d 633, 635 (3d Cir.2002). Applying the categorical approach, “a crime involves moral turpitude when ‘the least culpable conduct necessary to sustain a conviction under the statute’ can be considered morally turpitudinous.” Mehboob, 549 F.3d at 275 (quoting Partyka, 417 F.3d at 411). Accordingly, we must determine the least culpable conduct that could result in a conviction under the New York money laundering statute, and compare that conduct to the BIA’s definition of moral turpitude.
The relevant portion of the New York money laundering statute provides that:
A person is guilty of money laundering in the second degree when that person exchanges or receives in exchange, in one or more transactions, one or more monetary instruments which are the proceeds of specified criminal conduct and have a total value exceeding ten thousand dollars for one or more other monetary instruments and/or equivalent *723property when that person knows that the monetary instrument or instruments exchanged or received in exchange are the proceeds of any criminal conduct and that person:
1. intentionally makes the exchange to conceal or disguise the nature, the location, the source, the ownership, or the control of such proceeds.
N.Y. Penal Law § 470.10 (1999) (emphasis added).3 “Specified criminal conduct” includes serious offenses such as homicide and rape, as well as nonturpitudinous conduct such as criminal mischief, usury, contempt, firearms offenses, unauthorized recordings, and antitrust violations. N.Y. Penal Law §§ 470.00, 460.10.
Thus, the essential elements of money laundering are that: (1) the actor knows that the property involved in the financial transaction represents the proceeds of any unlawful activity; (2) the actor “conducts” the financial transaction which in fact involves the proceeds of specified unlawful activity (including most felonies); (3) the perpetrator acts with knowledge that the transaction is designed to conceal or disguise the nature, the location, the source, the ownership or the control of the proceeds; and (4) the total value of the property involved exceeds $10,000. See N.Y. Penal Law § Donnino, Practice Commentaries, McKinney’s Consol. Laws of N.Y., Book 39, Penal Law art 470 (setting forth elements of equivalent money laundering offense).
These elements do not meet the criteria the BIA relied on in holding that Tejwani’s offense met its definition of moral turpitude. The BIA focused on the fact that a money launderer takes “affirmative steps to conceal or disguise the proceeds of criminal conduct]]] acts in an inherently deceptive manner and impairs governmental function, specifically the ability to detect and combat criminal activity.” The BIA further stated that “[s]uch interference in governmental function is inherently dishonest and contrary to accepted moral standards.” Here, however we have a problem: deception and knowingly or recklessly concealing criminal conduct from the government are neither elements of money laundering nor inherent characteristics of the offense.
Certainly, “classic money laundering”— that is “taking steps to make [criminal] funds appear legitimate” (Regalado Cuellar v. United States, 553 U.S. 550, 128 S.Ct. 1994, 2000, 170 L.Ed.2d 942 (2008))— may constitute a deceptive attempt to conceal criminal conduct from the government. However, as set forth below, many money laundering statutes, like the New York statute at issue in this case, reach a far broader range of conduct. Again, under the categorical approach we are concerned only with the least culpable conduct a statute reaches. Mehboob, 549 F.3d at 275.
In Regalado Cuellar, the Supreme Court considered whether a federal money laundering statute (with language similar *724to that at issue here) required proof of “an attempt to create the appearance of legitimate wealth.”4 128 S.Ct. at 1998. In that case, the Court rejected Regalado Cuel-lar’s argument that concealing or disguising the nature, location, source, ownership, or control of the proceeds of unlawful activity “would necessarily have the effect of making the funds appear legitimate, and, conversely, revealing any such attribute would necessarily reveal the funds as illicit.” Id. at 2000; see also id. at 2001 (reasoning that “revealing those attributes — nature, location, source, ownership, or control — would not necessarily expose the illegitimacy of the funds”). The Court continued by observing that “[i]t might be possible for a defendant to conceal or disguise a listed attribute without also creating the appearance of legitimate wealth.” Id. For example, knowingly depositing the proceeds of non-turpitudinous conduct into a bank account in exchange for a cashiers check to avoid being mugged disguises the location of those proceeds, but does not create the appearance of legitimate wealth, suggest dishonesty, or necessarily hinder detection of the underlying conduct.
The New York statute — which also prohibits concealing or disguising the nature, location, source, ownership, or control of the proceeds of unlawful activity — similarly does not require proof of an attempt to create the appearance of legitimate wealth. Thus, contrary to the BIA’s assumption, the New York statute is broader than classic money laundering and does not require a deliberate act to concéal illegal activity. In short, deliberately concealing the listed characteristics of criminal proceeds does not imply an intent to conceal the underlying criminal activity.
Further, although concealing the listed characteristics of criminal proceeds may unintentionally — but foreseeably — impede a government investigation, intentional or reckless conduct is required to find moral turpitude. Mehboob, 549 F.3d at 276 (“[E]vil intent is a requisite element for a crime involving moral turpitude.”); Partyka, 417 F,3d at 416 (holding that “negligently inflicted bodily injury lacks the inherent baseness or depravity that evinces moral turpitude”); De Leon-Reynoso, 293 F.3d at 636 (distinguishing negligent possession of stolen property — not a crime of moral turpitude — from possession of property knowing that it was probably stolen— a crime of moral turpitude); In re Khourn, 21 I. & N. Dec. 1041, 1046 (B.I.A.1997) (“ ‘[E]vil intent’ is a requisite element for a crime involving moral turpitude.”); In re Flores, 17 I. & N. Dec. 225, 227 (B.I.A. 1980) (“An evil or malicious intent is said to be the essence of moral turpitude.”); In re Abreu-Semino, 12 I. & N. Dec. 775, 777 (B.I.A.1968) (“[M]oral turpitude normally inheres in the intent.”); In re P — , 2 I. & N. Dec. 117, 121 (B.I.A.1944) (“One of the criteria adopted to ascertain whether a particular crime involves moral turpitude is that it be accompanied by a vicious motive or corrupt mind. ‘It is in the intent that moral turpitude inheres.’”) (quoting United States ex rel. Meyer v. Day, 54 F.2d 336 (2d Cir.1931)); Michel v. INS, 206 F.3d 253, 263 (2d Cir.2000) (“[Corrupt scienter is the touchstone of moral turpitude.”). The BIA relied on the fact that the New York statute contained a scienter requirement. However, as set forth above, the scienter requirement is not intended to deceive or hinder lawful authorities.
*725Accordingly, because the New York statute reaches conduct that does not meet the BIA’s definition of moral turpitude, the categorical approach compels us to conclude that money laundering is not a crime of moral turpitude under New York law.5
III.
For the foregoing reasons, we will grant Tejwani’s petition for review of his order of removal. Accordingly, the issues raised in his petition to review the BIA’s refusal to reopen his case are moot and that petition will be denied.
. Although Tejwani was not convicted until more than five years after he was admitted, Tejwani does not dispute that the offense was committed within five years of admission.
. Because die statute is not divisible in any relevant way, we may not apply the modified categorical approach, which would permit the Court to consider certain parts of the underlying record of conviction. See Evanson v. Att'y Gen. of U.S., 550 F.3d 284, 291-92 (3d Cir.2008) (discussing when various documents may be considered). However, we note that those portions of the underlying record of conviction would not provide any relevant additional information about Tejwani’s offense. In particular, the record does not state that Tejwani knowingly laundered the proceeds of a crime of moral turpitude, nor does it state that Tejwani knowingly or recklessly disguised from lawful authorities the illegal character of those proceeds. We also note that contrary to the BIA's analysis the statute has no explicit "deliberate act to conceal illegal activity" requirement. For the reasons that follow in text, we find that this requirement is also not implicit in the statute.
. "[F]ederal case law to date should guide the interpretation of these [New York] statutes [including the money laundering statutes].” People v. Rozenberg, 21 Misc.3d 235, 236, 862 N.Y.S.2d 895, 897 (N.Y.Sup.2008) (applying Regalado Cuellar companion case to interpret money laundering statute).
. Our holding is not inconsistent with Smalley v. Ashcroft, 354 F.3d 332, 339 (5th Cir.2003) (holding that knowingly concealing the proceeds of drug trafficking was a crime of moral turpitude). In Smalley, the Fifth Circuit relied on the fact that Smalley knew that he was concealing the proceeds of illegal drug transactions, and thus intentionally facilitating the drug trade. Id. at 337, 338-39. Further, to the extent that Smalley is inconsistent with Regalado Cuellar, we find that it is not persuasive.
|
01-04-2023
|
11-05-2022
|
https://www.courtlistener.com/api/rest/v3/opinions/8473430/
|
OPINION OF THE COURT
SCIRICA, Chief Judge.
Lester M. Warren appeals the dismissal of his federal civil rights complaint against thirty-three defendants. This action, brought under 42 U.S.C. § 1983, arose from the dismissal of Warren’s state-court medical malpractice and wrongful death suit against eighteen of the present defendants. In his federal complaint, Warren alleges several conspiracies that arose in the handling of his state-court action in the Court of Common Please of Dauphin County and the Pennsylvania Superior Court. In addition to the defendants from the state-court proceeding, Warren added as defendants in his federal complaint all of the state court defendants’ lawyers and the county and state judges who presided over his earlier litigation. By four separate orders, granting five motions to dismiss, the District Court dismissed Warren’s complaint against all thirty-three of the defendants. The District Court found it did not have subject matter jurisdiction under the Rooker-Feldman doctrine because the claim required the court to review a state court judgment.1 We will affirm.
As we write primarily for the parties, we need not set forth in detail the complex procedural and factual background of this case. In sum, the Pennsylvania Superior Court entered a judgment of non pros against Warren for failure to file appropriate Certificates of Merit, as required under Pennsylvania law for medial malpractice actions. Warren subsequently filed this action alleging “a vast conspiracy existed between the Defendant Judges, Defendant doctors and Defendant legal practitioners to deprive him of his constitutional and statutory rights.” A-434b. Furthermore, he alleges that all defendants violated the Pennsylvania Constitution in ways that amount to negligence and gross negligence.
Warren’s appellate brief does not raise any colorable claims. It alleges Warren was “deprived of his federally protected and Pennsylvania Constitution protected *727right to appeal, which was rendered a nullity by the state court’s striking certain Defendants from the caption of the wrongful death case, and of his federally and state protected property rights, including damages in the wrongful death case, by the vexatious and biased acts, in violation of settled law, of Defendants to needlessly and deliberately increase the cost of litigation, and to violate the Plaintiffs right to due process and equal protection of the law.” Appellant Br. 3. This allegation is repeated verbatim throughout Warren’s brief unsupported by any factual allegations. The rest of the brief is comprised of short paragraphs which read like paren-theticals, describing cases and statutes, but not actually connecting such material to the facts of the appeal before us. Warren repeatedly mentions a conspiracy to deprive him of his constitutional and statutory rights, but without any factual details.
The District Court held it did not have subject matter jurisdiction because the “Rooker-Feldman doctrine operates as a bar to Plaintiffs claims in this action.” A-437b. The Rooker-Feldman doctrine prohibits federal courts from exercising jurisdiction over a claim which is functionally an equivalent of an appeal from a state court judgment. See Rooker v. Fidelity Trust Co., 263 U.S. 413, 44 S.Ct. 149, 68 L.Ed. 362 (1923); District of Columbia Court of Appeals v. Feldman, 460 U.S. 462, 103 S.Ct. 1303, 75 L.Ed.2d 206 (1983). “Rooker-Feldman applies only when in order to grant the federal plaintiff the relief sought, the federal court must determine that the state court judgment was erroneously entered or must take action that would render that judgment ineffectual.” FOCUS v. Allegheny County Court of Common Pleas, 75 F.3d 834, 840 (3d Cir.1996).
The United States Supreme Court has narrowed the applicability of the Rooker-Feldman doctrine to cases “brought by state-court losers complaining of injuries caused by state-court judgments rendered before the district court proceedings commenced and inviting district court review and rejection of those judgments.” Exxon Mobil Corp. v. Saudi Basic Industries, 544 U.S. 280, 284, 125 S.Ct. 1517, 161 L.Ed.2d 454 (2005). As the District Court found, Warren’s complaint fits this description of cases barred by the Rooker-Feldman doctrine. Warren lost in state court, he then complained of injuries caused by a state-court judgment rendered before the district court proceedings and then sought relief to review and reject the determinations made by the state courts.
If as Warren alleges, “the state-court decision was wrong,” Congress has empowered the United States Supreme Court to exercise appellate authority to “reverse or modify a state-court judgment.” Id. (internal quotation omitted). We will affirm the judgment of the District Court.
. "The District Court held that it lacked jurisdiction under the Rooker-Feldman doctrine. We exercise plenary review over the decision to grant the motion to dismiss for lack of subject matter jurisdiction.” Marran v. Marran, 376 F.3d 143, 149 (3d Cir.2004).
|
01-04-2023
|
11-05-2022
|
https://www.courtlistener.com/api/rest/v3/opinions/8473432/
|
OPINION OF THE COURT
FISHER, Circuit Judge.
Antonio Figueroa appeals from the District Court’s order denying his motion to compel the Bureau of Prisons (“BOP”) to credit him for time served or, in the alternative, to correct his sentence. For the reasons that follow, we will vacate the District Court’s order and remand this case to the District Court.
I.
We write exclusively for the parties, who are familiar with the factual context and legal history of this case. Therefore, we will set forth only those facts necessary to our analysis.
In January 2002, Figueroa was arrested and charged by the Pennsylvania authorities with violating the terms of his probation and committing other offenses arising out of his participation in a home invasion robbery. In February 2002, he was sentenced in a Pennsylvania court to one to two years in prison for the probation violation.1
In February 2003, Figueroa was indicted by the federal government in the Eastern District of Pennsylvania on four charges arising out of the home invasion robbery.2 In April 2003, while Figueroa *729was still serving his sentence for the probation violation, the Pennsylvania authorities transferred him to the custody of the United States Marshals Service.3 That same month, Figueroa pled guilty in the United States District Court for the Eastern District of Pennsylvania to all four charges in the indictment. In April 2005, the District Court sentenced Figueroa to concurrent sentences of twelve months in prison on three of the charges and a consecutive term of eighty-four months in prison on the fourth charge. The District Court recommended that the BOP credit Figueroa for all time served since his January 2002 arrest and that his sentence ran concurrently with any other sentence, state or federal, that Figueroa may have been serving since that time. Figueroa did not appeal his sentence.
Figueroa was imprisoned at the Federal Detention Center in Philadelphia from April 2005 until June 2005, when he was transferred to the United States Penitentiary in Lewisburg, Pennsylvania. After approximately one week at the Lewisburg facility, Figueroa was transferred to the Federal Correctional Institution' — Schuylkill in Minersville, Pennsylvania.
In August 2007, while still imprisoned at the Minersville facility, Figueroa filed a motion in the United States District Court for the Eastern District of Pennsylvania seeking to compel the BOP to credit him for time served since January 2002 or, in the alternative, to correct his sentence. The District Court denied that motion on the ground that Figueroa had failed to exhaust his administrative remedies. Thereafter, Figueroa petitioned the BOP to credit him for time served. The BOP denied that petition. In February 2008, Figueroa filed another motion in the District Court seeking to compel the BOP to credit him for time served or, in the alternative, to correct his sentence. In November 2008, the District Court summarily denied Figueroa’s motion. In a footnote, the District Court clarified that it had only recommended, not ordered, that Figueroa receive credit for time served since January 2002 and that his federal sentence run concurrently with any other sentence. The District Court also found no error in either the BOP’s calculation of Figueroa’s credit for time served or its denial of his petition. This appeal followed.4
II.
We have an obligation to consider both our own jurisdiction and the jurisdiction of the District Court before entering an order on appeal. See United States v. Higgs, 504 F.3d 456, 457 (3d Cir.2007).
In his motion before the District Court, Figueroa cited no statutory basis for the relief he requested. Because Figueroa essentially challenged the manner in which his sentence was executed and not the validity of the sentence itself, he clearly sought relief that is available exclusively under 28 U.S.C. § 2241. See Woodall v. Fed. Bureau of Prisons, 432 F.3d 235, 241-44 (3d Cir.2005); Coady v. Vaughn, 251 F.3d 480, 485 (3d Cir.2001) (holding that 28 U.S.C. § “2241 is the only statute that confers habeas jurisdiction to hear the petition of a federal prisoner who is challenging not the validity but the execution *730of his sentence” (citations omitted)); see also, e.g., United States v. Grimes, 641 F.2d 96, 99 (3d Cir.1981) (rejecting the petitioner’s claim “that he [was] entitled to federal credit for time spent serving his state sentences” because it constituted “a challenge to the sentence as executed by the prison and parole authorities and should [have been] made on a petition for a writ of habeas corpus [under] 28 U.S.C. § 2241, not under 28 U.S.C. § 2255 whose terms cover challenges to sentences as imposed” (citations omitted)).
A petition brought under 28 U.S.C. § 2241 must be filed in the district in which the petitioner is imprisoned. Rumsfeld v. Padilla, 542 U.S. 426, 447, 124 S.Ct. 2711, 159 L.Ed.2d 513 (2004) (“Whenever a § 2241 habeas petitioner seeks to challenge his present physical custody within the United States, he should name his warden as respondent and file the petition in the district of confinement.” (citations omitted)); Burkey v. Marberry, 556 F.3d 142, 146 (3d Cir.2009) (noting that the petitioner, who challenged the BOP’s determination that he was ineligible for early release, had “appropriately filed his habeas corpus petition in the district of confinement”); Yi v. Maugans, 24 F.3d 500, 503 (3d Cir.1994) (“A district court’s habeas corpus jurisdiction is territorially limited and extends only to persons detained and custodial officials acting within the boundaries of that district.” (citations omitted)).
At the time Figueroa filed his motion in the District Court, he was imprisoned at a facility in Minersville, Pennsylvania, which is located within the territorial limits of the Middle District of Pennsylvania.5 Therefore, Figueroa was required to file a petition under 28 U.S.C. § 2241 in the United States District Court for the Middle District of Pennsylvania. The United States District Court for the Eastern District of Pennsylvania lacked jurisdiction to consider his motion. Accordingly, we will vacate the District Court’s order and remand this case to the District Court with instructions to dismiss it without prejudice, unless the District Court finds that a transfer under 28 U.S.C. § 1631 is appropriate under the circumstances.6
III.
For the foregoing reasons, we will vacate the District Court’s order and remand this case to the District Court for further proceedings consistent with this opinion.7
. Figueroa completed that sentence in January 2004.
. Specifically, Figueroa was indicted for conspiracy to affect commerce by robbery in vio*729lation of 18 U.S.C. § 1951(a); interference with commerce by robbery in violation of 18 U.S.C. § 1951(a); using and carrying a firearm during the commission of a violent crime in violation of 18 U.S.C. § 924(c)(1)(A)(ii); and possession of a firearm by a convicted felon in violation of 18 U.S.C. § 922(g)(1).
. The Pennsylvania authorities apparently dropped the charges against Figueroa arising out of the home invasion robbery in light of the federal charges against him.
. We have jurisdiction to review the District Court’s order under 28 U.S.C. § 1291.
. We have taken judicial notice of Miners-ville's location within the territorial limits of the Middle District of Pennsylvania. See generally Boyce Motor Lines v. United States, 342 U.S. 337, 344, 72 S.Ct. 329, 96 L.Ed. 367 (1952) (Jackson, J., dissenting) (acknowledging a court’s authority to "take judicial notice of geography”). We note as well that the BOP's website states that the Federal Correctional Institution — Schuylkill is located in the Middle District of Pennsylvania. See http://www.bop.gov/locations/institutions/sch/ index.jsp (last visited Sept. 18, 2009).
. The caption of Figueroa’s motion before the District Court indicates that he also sought to correct his sentence. Federal Rule of Criminal Procedure 35(a) provides: "Within 7 days after sentencing, the court may correct a sentence that resulted from arithmetical, technical, or other clear error." Fed.R.Crim.P. 35(a). Rule 35(a)'s time limitation is jurisdictional. United States v. Washington, 549 F.3d 905, 915-16 (3d Cir.2008). Because Figueroa’s motion was filed well beyond that limitation, the District Court also lacked jurisdiction to consider it to the extent Figueroa sought relief under that rule.
.Given this disposition, we do not reach the merits of Figueroa's motion.
|
01-04-2023
|
11-05-2022
|
https://www.courtlistener.com/api/rest/v3/opinions/8473434/
|
OPINION OF THE COURT
FUENTES, Circuit Judge:
Debtor-Appellant Victor Mondelli appeals the decision of the District Court to affirm two orders entered by the Bankruptcy Court: one that enforced a mortgage and lease. specifically agreed to by Mondelli; and another that denied a subsequent motion for reconsideration. For the reasons that follow, we will affirm the District Court’s order dismissing Mondel-li’s appeal from the Bankruptcy Court.
I.
Because we write exclusively for the parties, we only discuss the facts and proceedings to the extent necessary for the resolution of this case.
In May 2007, the Bankruptcy Court approved a plan whereby Mondelli would satisfy a significant portion of his outstanding debts by mortgaging property he owned in Berkeley Heights, New Jersey. Mondelli obtained the loan from Jack Sil-verman Realty & Mortgage Co. (“JSRM”) and used the loan proceeds to pay his creditors. Atypieally, the mortgage agreement with JSRM was accompanied by a ninety-nine year ground lease to another company, Berkeley Realty Partners (“BRP”). The lease expressly states that the lease’s existence was a condition precedent to JSRM’s grant of the mortgage— JSRM and BRP share some overlapping ownership interests, and the mortgage from JSRM and the lease to BRP were clearly part of a package deal.
*732The lease to BRP contains several provisions relevant to this appeal. First, the lease gives BRP a right of first refusal if and when Mondelli decides to sell the property. Second, the lease contains a “subordination” provision, which requires Mondelli to subordinate his interest in the property to any subsequent mortgage entered into by BRP for the purpose of “construction and permanent financing” of the lease. Third, pursuant to the lease, BRP is required to pay property taxes and purchase insurance for the property.
The present dispute arose when BRP attempted to obtain a mortgage on the property, invoking the provision of the lease requiring Mondelli to subordinate his interest. Mondelli objected and refused to execute the necessary paperwork. BRP and JSRM then filed a motion with the Bankruptcy Court to enforce the relevant lease provisions consented to by Mondelli. During the hearing on the motion, Mondel-li noted that BRP had fallen behind on its property tax obligations, thus endangering Mondelli’s interest in the land. Over Mon-delli’s objections, the Bankruptcy Court granted the motion, noting that Mondelli had agreed to the subordination and characterized Mondelli’s resistance as something akin to buyer’s remorse.
Shortly thereafter, Mondelli filed a motion for reconsideration of the decision enforcing the lease provisions. In this motion, Mondelli supplemented his claim about the unpaid taxes by arguing that (1) BRP’s right of first refusal constituted a clog on Mondelli’s equitable right of redemption; (2) BRP could not request subordination without evidence that the mortgage was for development of the property; (3) BRP had breached the lease by subleasing a portion of the property; and (4) the Bankruptcy Judge should have recused himself for bias. The Bankruptcy Court rejected all of these arguments and dismissed the motion for reconsideration.1 Mondelli then appealed to the District Court, presenting the same arguments he raised in his earlier submissions. The District Court affirmed, agreeing with the Bankruptcy Court on the merits of Mon-delli’s appeal, but also noting that Mondelli had defaulted on his obligation under the Federal Rules of Bankruptcy Procedure to provide the District Court with a complete appellate record.
II.
Pursuant to Federal Rule of Bankruptcy Procedure 8006, “[wjithin 10 days after filing [a] notice of appeal ..., [an] appellant shall file with the clerk and serve on the appellee a designation of the items to be included in the record on appeal and a statement of the issues to be presented.” Fed. R. Bank. Proc. 8006. As noted by the District Court, Mondelli filed his notice of appeal on February 4, 2008, but did not file his designation of the items to be included in the record until April 2, 2008, well past the ten-day filing limit. Such a violation may constitute a basis for dismissal of the appeal. See Fed. R. Bank. Proc. 8001(a) (“An appellant’s failure to take any step other than timely filing a notice of appeal does not affect the validity of the appeal, but is ground only for such action as the district court or bankruptcy appellate panel deems appropriate, which may include dismissal of the appeal.”). Before dismissing Mondelli’s appeal for this procedural violation, however, the Dis*733trict Court appropriately analyzed Mondel-li’s violation in reference to the factors laid out in Poulis v. State Farm Fire and Casualty Co., 747 F.2d 863 (3d Cir.1984).
(1) the extent of the party’s personal responsibility; (2) the prejudice to the adversary caused by the failure to meet scheduling orders and respond to discovery; (3) a history of dilatoriness; (4) whether the conduct of the party or the attorney was willful or in bad faith; (5) the effectiveness of sanctions other than dismissal, which entails an analysis of alternative sanctions; and (6) the meritoriousness of the claim or defense.
Id. at 868. The District Court addressed each factor and found, in the aggregate, that dismissal for failure to meet the requirements of Rule 8006 was warranted.
We have reviewed the District Court’s application of the Poulis factors, and we see no abuse of discretion. See Emerson v. Thiel College, 296 F.3d 184, 191 (3d Cir.2002) (noting standard of review). In terms of the merits of Mondelli’s arguments, we affirm for the thorough and persuasive reasons noted in the District Court’s opinion. In particular, we echo the District Court’s analysis of the alleged clogs to Mondelli’s equitable right of redemption — a contention that Mondelli prioritizes in his briefing. We do not see how BRP’s right of first refusal in the event that Mondelli chooses to sell the property in any way compares to the sort of unconditional right to purchase held by the mortgagee in Humble Oil & Refining Co. v. Doerr, 123 N.J.Super. 530, 303 A.2d 898 (N.J.Super.Ct. Ch. Div.1973). Quite simply, BRP’s right to repurchase would not affect Mondelli’s ability to redeem his mortgage — it would only affect his efforts to sell the property to a third party. And, as noted by the District Court, even if the right of first refusal did clog the equitable right of redemption, the remedy would be to render the provision unenforceable, not to invalidate the entire lease. Id. at 565, 303 A.2d 898. We also reject the argument that the mere presence of the subordination clause somehow clogs the equitable right of redemption. While the subordination clause might affect Mondelli’s ability to obtain other financing at a favorable rate, the clause does not in any way prevent him from actually redeeming his mortgage, and thus cannot be considered a clog to that essential right.
In regard to the non-merits factors, we see no clear error in the District Court’s factual determination that Mondelli was not personally responsible for the procedural violation; that BRP was somewhat prejudiced by the delay; that Mondelli has a history of dilatoriness; and that alternate sanctions, such as financial penalties, would be ineffective given Mondelli’s bankruptcy. Accordingly, we agree with the District Court’s analysis and balancing of the Poulis factors, and will affirm its dismissal of Mondelli’s appeal.
. As noted by the District Court, the Bankruptcy Court did not clearly address Mondel-li's second argument — that subordination was dependent on evidence of development — perhaps because it did not understand Mondelli to be actually arguing that point. Regardless, the District Court did address the issue in its Opinion, and we will review that determination for abuse of discretion.
|
01-04-2023
|
11-05-2022
|
https://www.courtlistener.com/api/rest/v3/opinions/8473436/
|
OPINION
PER CURIAM.
Nardeep Singh petitions for review of an order of the Board of Immigration Appeals (BIA), which dismissed his appeal of an Immigration Judge’s (IJ’s) final removal order. We will deny the petition.
I.
Singh is a native and citizen of India. He testified that he first entered the United States in 1994 (without a passport or visa). He returned to India in mid-June 2000 using someone else’s passport because he had learned that his father had been arrested on June 6, 2000 due to his involvement with the Shormani Akali Dal Committee political party that advocates for the creation of Khalistan. His father was no longer in prison when he returned, but his father was rearrested in January 2001, and was tortured during his 4-day detention. Police came to the family home again on June 5, 2001 to arrest Nardeep’s father, but he was not home. The police beat Nardeep and dragged him to the police station, where he was detained for four days. He was brutally beaten and his arm was broken. He was hospitalized for three to five days after his release. The police began visiting the family home looking for Nardeep, so he left for the United States.
Singh applied for asylum in California, and asylum was conditionally granted, but it was cancelled when the Government learned that Singh had been arrested twice for larceny in New York in 1999. A.R. 412. Singh’s asylum application had stated that he resided in India from Oct. 1978 to June 2001, and had not disclosed any previous time in the United States. Id. The asylum application was referred to the Immigration Court.1 Singh was al*735lowed to amend his application. The IJ found that Singh was not credible. The IJ found that Singh had submitted contradictory and partially fraudulent proofs of identity. His arrest records showed the names “Sunn Singh” and “Nardip Singh” and gave incorrect birthdates. Singh said he was not aware how these discrepancies appeared, as he did not lie to the police. Singh submitted a “ration card” issued to his father dated 1999 that includes a photograph of the family, including Nardeep. He stated that the photograph was taken in 2000, but the IJ did not credit his explanation that the reason that a photo taken in 2000 was affixed to a card issued in 1999 must have been because it was reissued. Singh also submitted an Indian driver’s license. A forensics report indicated that the license was produced on an ink jet printer and it included a misspelled word. Singh could not provide any information about his living situation in the United States between 1994 and 2000; he could not remember the names of cities he lived in or names of people he lived with, aside from a few nicknames.
The IJ also faulted Singh for failing to provide corroborating evidence regarding events in India. Singh testified that his arm was broken, but the medical report submitted mentions only cuts and bruises. The IJ also noted that the medical report regarding Singh’s father and the one regarding Nardeep “are largely identical save for the dates.” Singh did not produce any record of his arrest.
The IJ found that Singh had not established with credible testimony or evidence that he had filed his asylum claim within one year of entry to the United States. Alternatively, the IJ found that Singh was not a “refugee” within the meaning of the Immigration and Nationality Act, as he had not provided evidence that he feared persecution on the basis of his Sikh religion, Singh acknowledged that he had never been a member of a political party, and he did not establish that police imputed his father’s political opinion to him. The IJ also found no evidence that Singh would be persecuted as a member of a particular social group, and found no evidence of a pattern or practice of persecution of those associated with the Shormani Akali Dal Committee. The IJ denied all relief.
The BIA found that the adverse credibility finding was not clearly erroneous, and also noted that Singh failed to meet his burden regarding past persecution because he did not belong to a political party, and failed to show that his father’s opinions had been imputed to him. The BIA also noted that Singh had not presented persuasive evidence that he feared persecution on religious grounds or any other grounds. The BIA held that even if Singh’s asylum application had been timely filed, he did not establish eligibility for asylum relief on the merits. Proceeding pro se, Singh filed a timely petition for review.
II.
We review the final order of the BIA, but to the extent that the BIA adopts parts of the IJ’s opinion, we review the IJ’s opinion to determine whether the BIA’s decision to defer to the IJ was appropriate. Zhang v. Gonzales, 405 F.3d 150, 155 (3d Cir.2005). “We will uphold the [adverse credibility] findings ... to the extent that they are supported by reasonable, substantial and probative evidence on the record considered as a whole, and will reverse those findings only if there is evidence so compelling that no reasonable factfinder could conclude as the [IJ] did.” Kayembe v. Ashcroft, 334 F.3d 231, 234 (3d Cir.2003). In general, “minor inconsistencies and minor admissions that reveal nothing about an ... applicant’s fear for his safety are not an adequate basis for an *736adverse credibility finding.” Gao v. Ashcroft, 299 F.3d 266, 272 (3d Cir.2002) (internal quotation and citation omitted). Any discrepancies must involve the heart of the claim. Id.2
The IJ identified several factors supporting her adverse credibility finding: problems with documents Singh produced to establish his identity; his inability to give information about where he was living in the United States and with whom between 1994 and 2000; and an inconsistency between his testimony (his arm was broken when he was beaten in India) and the medical record he submitted (no mention of a broken arm). Singh argues that where he was from 1994 to 2000 is irrelevant to his asylum claim; even assuming he is correct, the other factors cited by the IJ involve the “heart” of Singh’s asylum claim.
Singh’s claim is based on his allegation that he was detained and beaten in India in 2001. However, the documents Singh produced to show that he returned to India in 2000 and 2001 are questionable. His explanation of how a photo that he alleges was taken in 2000 came to be affixed to a ration card issued in 1999 does not ring true. The driver’s license that he alleges was issued in India in 2000 was produced on a laser-jet printer and contains a misspelled word. A bank book allegedly relating to an account he opened in India in September 2001 “contains no indication of who specifically opened the account or made the listed transactions;” Singh also admitted that “anyone in his family can make transactions.” IJ’s decision at 11; A.R. 77. Further, Singh’s testimony that his arm was broken in custody is contradicted by the medical report he produced. While Singh argues that he was not given a chance to explain this discrepancy, he certainly should have been aware of the contents of any exhibits he submitted in support of his asylum claim, and he could have offered an explanation without being prompted to do so. Given the unreliability of Singh’s documentary evidence, we do not feel compelled to conclude that Singh was credible. Lin-Zheng v. Attorney General, 557 F.3d 147, 155 (3d Cir.2009); 8 U.S.C. § 1252(b)(4)(B).3
Because Singh did not credibly testify regarding past persecution or the likelihood of future persecution, the IJ and BIA properly denied Singh asylum and withholding of removal. We further agree that Singh did not produce any evidence that he is likely to be tortured if he returns to India. We will thus deny the petition for review.
. Singh was ordered removed in absentia, but his subsequent motion to reopen was granted and venue was changed to New Jersey, because he had moved.
. The provisions of the Real ID Act of 2005 regarding review of adverse credibility findings do not apply to cases such as this one, where the asylum application was filed before the enactment of the Real ID Act. Real ID Act of 2005, Pub.L. No. 109-13, Div. B, § 101, 119 Stat. 231 (May 11, 2005).
. Because we uphold the IJ's adverse credibility finding, we need not discuss the IJ's finding that Singh failed to sufficiently corroborate his claim and her alternative finding that Singh failed to show that any persecution would be on the basis of a statutorily-protected ground.
|
01-04-2023
|
11-05-2022
|
https://www.courtlistener.com/api/rest/v3/opinions/8473439/
|
OPINION
McKEE, Circuit Judge.
Emmanuel Herrera pled guilty to one count of conspiracy to import 100 grams or more of heroin, in violation of 21 U.S.C. § 963, and was sentenced to 60 months imprisonment pursuant to 21 U.S.C. § 960(b)(2)(A), as well as a term of supervised release for five years, and ordered to pay a fine of $2,500, and a special assessment of $100. He argues the sentencing court erred in concluding that he was a “supervisor” pursuant to U.S.S.G. § 5C1.2, and that the court violated the Fifth and Sixth Amendments by making a finding of fact that increased his sentence. For the reasons that follow, we will affirm.
I.
As we write primarily for the parties who are familiar with the facts of this case, we need not recite the factual or procedural history in detail. We exercise plenary *738review over a district court’s interpretation of sentencing guidelines and examine a district court’s factual findings for clear error. See United States v. Grier, 475 F.3d 556, 570 (3d Cir.2007).
II.
The district court increased Herrera’s Offense Level by two points pursuant to U.S.S.G. § 3B1.1(c) based on its finding that he played a leadership role in the criminal activity underlying his plea. Section 3B1.1(c) directs district courts to increase a defendant’s offense level by two levels where the defendant was “an organizer, leader, manager, or supervisor in any criminal activity” involving less than five participants. U.S.S.G. § 3B1.1(c).
On appeal, Herrera contends that the record does not support a finding that he was an organizer or supervisor of criminal activity, and that increasing his sentence based on that finding denied him due process and the right to a jury trial. Neither argument has merit.
Herrera admitted at to recruiting and directing two other co-conspirators “to fly to the Dominican Republic and then smuggle drugs back into the United States.” A.R. 24. He stipulated to the Pre-Sentence Report which shows that he and another co-conspirator agreed to pay those two co-conspirators (who were under his direction) $100 for every pellet of heroin smuggled into the U.S. It is therefore clear that the district court correctly concluded that Herrera was a supervisor for purposes of sentencing and that the court correctly increased his base offense level pursuant to U.S.S.G. § 3Bl.l(c).
III.
Herrera’s attempt to fashion a constitutional deprivation from the court’s fact finding and corresponding increase in sentence also fails. The argument is based on Herrera’s contention that the conclusion that he was a manager or supervisor of criminal activity had to be proven to a jury beyond a reasonable doubt pursuant to United States v. Booker, 543 U.S. 220, 125 S.Ct. 738, 160 L.Ed.2d 621 (2005). However, the resulting increase in sentence was well within the statutory maximum for the offenses he pled guilty to. Accordingly, Booker does not apply. See United States v. Grier, 475 F.3d 556, 561 (3d Cir.2007) (en banc).
IV.
For all the reasons set forth above, we will affirm the judgement of conviction.
|
01-04-2023
|
11-05-2022
|
https://www.courtlistener.com/api/rest/v3/opinions/8473442/
|
OPINION
PER CURIAM.
Monroe Merritt appeals pro se from the District Court’s order dismissing his complaint and denying his motions for leave to amend. For the following reasons, we will vacate the District Court’s judgment and remand for further proceedings.
I.
Merritt is a Pennsylvania state prisoner serving a sentence of life imprisonment. In 2007, he filed suit pro se against various medical professionals and Department of Corrections employees under 42 U.S.C. § 1983, asserting an Eighth Amendment claim that they have been deliberately indifferent to his medical needs. He also asserted a claim for medical malpractice under state law. We take the following factual allegations as true for purposes of this appeal. See Ashcroft v. Iqbal, — U.S. —, 129 S.Ct. 1937, 1949, 173 L.Ed.2d 868 (2009).
Merritt has the Hepatitis C virus (“HCV”) and has tried repeatedly for many years to obtain treatment but has been refused. Merritt alleges that he began seeking a combined drug treatment for HCV with Interferon and Ribavirin in 1998. In 2000, a physician’s assistant initially told him that he had to complete drug and alcohol therapy before receiving the treatment. Merritt completed the therapy in 2001 and again requested treatment. Defendants Fairman and Howard-Diggs (both physician’s assistants), however, told him that his white blood cell count was too low to receive treatment. Merritt *744alleges he was ultimately approved for the treatment in 2003 (by a psychiatrist), but does not allege why the treatment was never begun.
In 2005, Merritt’s liver condition began to deteriorate, which he attributes to medication he was prescribed after a tooth extraction. Merritt again began seeking treatment. In 2007, defendant Falor (a physician) told Merritt that his liver function test numbers were “all out of wack,” but denied treatment and told Merritt to “pray.” Merritt was referred to defendant Jin (another physician), but he too denied treatment. Merritt alleges that Jin refused to consider the effect of the medication he had been taking on his liver. He also alleges that, while he was reviewing his medical records, he overhead a physician’s assistant tell a technician that he had “shredded all of plaintiffs sick call requests.”
Shortly thereafter, he again requested treatment, but defendant Howard-Diggs told him that he had not qualified for treatment under the Department of Corrections HCV treatment protocol for the past two and one-half years because he had turned 50 years of age. He alleges that he finally obtained a copy of that protocol and learned that his white blood cell count had in fact been within the protocol range for treatment in 2001 and that the protocol contemplates treatment until the age of 60, not 50 as Howard-Diggs had told him. After filing multiple grievances, he filed the instant suit, seeking both an injunction requiring defendants to provide him with HCV treatment and monetary damages. He filed along with his complaint a motion for the appointment of counsel, which a Magistrate Judge denied. Merritt timely appealed that ruling to the District Court, but the District Court never ruled on his appeal.
The defendants filed motions to dismiss Merritt’s complaint under Rule 12(b)(6). Merritt thereafter filed a motion for leave to amend his complaint, a second motion for leave to amend his complaint, and several “addenda” in support of his motions to amend. By these filings, he sought to include the following additional allegations. In 2004, medical staff denied him treatment on the grounds that his “ALT and AST values” were normal and told him that he could not receive treatment until those values were at least three times normal, though normal ALT and AST values are not exclusionary criteria for treatment under the protocol. Then, in 2005, he received a liver biopsy, which revealed that his ALT and AST values were over six and one-half and five and one-half times normal, respectively, but that he was still refused treatment.
Merritt further alleges that, in 2007, defendant Falor, the physician defendant who had told him to “pray” after denying him treatment, also told him “that whenever the SCI Greene medical staff met for their staff meetings, and the question of what they are going to do about inmates with Hepatitis C comes up, SCI Greene medical staff members just shrug their shoulders, indicating nothing.” He also alleges that, during that same year, defendant Jin reviewed his most recent liver test and told him that “it looks bad” but that “I will not be treated.” Finally, he alleges that he obtained from defendants in discovery a 1996 letter from a Dr. Frederick Ruthardt, whom he characterizes as “defendants’ own specialist,” stating that Merritt “would be an excellent candidate for therapy with alpha interferon” and “would benefit from the treatment.” Merritt alleges that defendants’ refusal to provide treatment has caused his liver condition to deteriorate and may lead to his death.
The Magistrate Judge issued a Report and Recommendation recommending that *745the District Court dismiss Merritt’s Eighth Amendment claim for failure to state a claim and his malpractice claim for failure to comply with Pennsylvania’s certificate of merit requirement. He also recommended denying Merritt’s motions to amend on the grounds that amendment would be futile. The District Court followed that recommendation by order entered August 1, 2008, 2008 WL 2967528. Merritt appeals.
II.
We have jurisdiction pursuant to 28 U.S.C. § 1291. On appeal, Merritt challenges the dismissal of his complaint and the denial of his motions for leave to amend. We review the first of those rulings de novo, see Phillips v. County of Allegheny, 515 F.3d 224, 230 (3d Cir.2008), and the second for abuse of discretion, see Singletary v. Pa. Dep’t of Corr., 266 F.3d 186, 193 (3d Cir.2001).1
We begin by addressing a procedural wrinkle identified by neither the parties nor the District Court. After Merritt filed his initial complaint and defendants filed their motions to dismiss, Merritt filed his first motion “for leave” to file an amended complaint. Merritt, however, was entitled to file that amended complaint as of right. Defendants’ motions to dismiss were not “pleadings,” see Fed. R.Civ.P. 7(a), so Merritt remained entitled to amend his complaint once as a matter of course, see Fed.R.Civ.P. 15(a)(1). Thus, the District Court should have construed Merritt’s initial motion, to which his amended complaint was attached, as the filing of that amended complaint. That filing would have rendered moot defendants’ motions to dismiss. See Pure Country, Inc. v. Sigma Chi Fraternity, 312 F.3d 952, 956 (8th Cir.2002). Technically speaking, then, there were no motions to dismiss properly pending when the District Court dismissed Merritt’s complaint.
In any event, we believe that the District Court’s dismissal of Merritt’s complaint and denial of leave to amend were erroneous on the merits, and we address those issues in tandem under the posture presented here. “To survive a motion to dismiss, a complaint must contain sufficient factual matter, accepted as true, to ‘state a claim for relief that is plausible on its face.’ A claim has facial plausibility when the plaintiff pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged.’” Iqbal, 129 S.Ct. at 1949 (quoting Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 570, 127 S.Ct. 1955, 167 L.Ed.2d 929 (2007)). Complaints filed pro se, like Merritt’s, must be liberally construed. See Erickson v. Pardus, 551 U.S. 89, 93-96, 127 S.Ct. 2197, 2200, 167 L.Ed.2d 1081 (2007). Before dismissing a complaint, “a district court must permit a curative amendment unless such an amendment would be inequitable or futile.” Phillips, 515 F.3d at 245.
In this case, Merritt’s Eighth Amendment claim required him to allege that the defendants (1) were deliberately indifferent to (2) his serious medical needs. See Spruill v. Gillis, 372 F.3d 218, 235 (3d Cir.2004). There is no dispute that HCV constitutes a serious medical need. Instead, the District Court dismissed this claim and denied leave to amend on the grounds that Merritt had not adequately *746alleged that defendants were deliberately indifferent to that need. “We have found ‘deliberate indifference’ in a variety of circumstances, including where a prison official (1) knows of a prisoner’s need for medical treatment but intentionally refuses to provide it; (2) delays necessary medical treatment based on a non-medical reason; or (3) prevents a prisoner from receiving needed or recommended medical treatment.” Rouse v. Plantier, 182 F.3d 192, 197 (3d Cir.1999). Deliberate indifference, however, requires more than mere malpractice or disagreement with a particular course of treatment. See Spruill, 372 F.3d at 235.
The Magistrate Judge thought Merritt’s claim deficient as a matter of law because his own allegations show that defendants have repeatedly monitored and tested him and have determined that he does not qualify for HCV treatment. In reaching that conclusion, the Magistrate Judge relied primarily on responses by certain defendants and others to Merritt’s grievances that he attached to his initial complaint. As the Magistrate Judge noted, those responses indicate that Merritt has been tested and that certain defendants and others have concluded that he is not a candidate for combined drug treatment for various reasons.2 Thus, the Magistrate Judge reasoned that Merritt’s allegations show that he merely disagrees with defendants’ medical judgment and insists on the treatment of his choice.
If that were all that Merritt alleged, then the Magistrate Judge would be right. Merritt, however, makes many other specific factual allegations that the Magistrate Judge did not discuss and that, taken as true as they must be at this stage, raise an inference of deliberate indifference. For example, Merritt alleges that one of defendants’ own specialists recommended him for treatment as long ago as 1996 but that defendants fraudulently concealed that information from him until he finally filed suit. He also alleges that he is within the protocol for treatment, though various defendants have falsely told him otherwise. Thus, as Merritt argues, he claims to seek, not merely the treatment of his own choice, but treatment that has been recommended by a specialist and that is called for by the Department of Corrections protocol.
Moreover, his allegations permit the inference that defendants may have nonmedical reasons for refusing to provide this treatment. For example, he alleges that defendant Falor told him both that medical staff merely “shrug their shoulders, indicating nothing” when the subject of HCV treatment arises at staff meetings and that Merritt would not receive treatment though his liver numbers were “all out of wack” and that he should instead “pray.” He also alleges that he overheard a physician’s assistant admit to having shredded his sick call requests. Finally, he alleges that has been denied treatment for at least five different reasons over the years, most of which he alleges were fabricated.
Taken together, and in light of Merritt’s pro se status, we believe that these specific factual allegations permit the inference that at least some defendants have acted with deliberate indifference to Merritt’s medical needs. Thus, for pleading purposes, Merritt’s factual allegations have “ ‘nudged his claim ... across the line from conceivable to plausible.’ ” Iqbal, 129 *747S.Ct. at 1951 (quoting Twombly, 550 U.S. at 570, 127 S.Ct. 1955). For that reason, the District Court should not have dismissed Merritt’s complaint without leave to amend and should not have denied his motions for leave to amend as futile. Accordingly, we will vacate the dismissal of Merritt’s complaint and remand with an instruction to allow him to file an amended complaint.3
Merritt also challenges the Magistrate Judge’s order denying his motion for the appointment of counsel. Merritt timely appealed that order to the District Court, but the District Court never addressed it. Because the Federal Magistrate Judges Act contemplates a first level of review in the District Court, see 28 U.S.C. § 636(b)(1)(A), we will not reach that issue in the first instance. Instead, Merritt’s appeal to the District Court will remain pending on remand. Although we do not address the merits of the Magistrate Judge’s ruling, we observe that the potential merit and medical complexity of Merritt’s claims may warrant the appointment of counsel in the District Court. See Montgomery v. Pinchak, 294 F.3d 492, 501-06 (3d Cir.2002) (holding that District Court abused its discretion in refusing to appoint counsel for prisoner asserting potentially-meritorious claim of deliberate indifference to medical needs); Parham v. Johnson, 126 F.3d 454, 458-461 (3d Cir.1997) (same).4
. Merritt also challenges the District Court’s (1) denial of his motion for counsel, (2) denial of a motion for discovery he sought to respond to defendants’ motions to dismiss, and (3) application of Pennsylvania’s certificate of merit requirement. In light of our disposition and the posture of this case, we do not reach these issues, though we briefly discuss the issue of counsel below.
. The responses state that Merritt is not a candidate for treatment because he is "asymptomatic,” his biopsy showed "grade 1 inflamation and no fibrosis,” and because his lab tests have shown improvement in his liver condition. Merritt, however, alleges that his liver condition continues to deteriorate. The Magistrate Judge properly did not purport to resolve that factual issue at the pleading stage.
. Defendants moved to dismiss Merritt's complaint on other grounds, including the statute of limitations and failure to exhaust his claims against one defendant. The District Court did not address those arguments, and we will not do so in the first instance on the record presented here.
. As the Department of Corrections defendants note in their brief, we previously denied Merritt's motion for the appointment of counsel in this Court. Although it should go without saying, many of the considerations relevant to the appointment of counsel in a trial court are not relevant to the appointment of counsel in an appellate court. See Montgomery, 294 F.3d at 498-99.
|
01-04-2023
|
11-05-2022
|
https://www.courtlistener.com/api/rest/v3/opinions/8473444/
|
OPINION OF THE COURT
FUENTES, Circuit Judge:
Appellant Paul Polishan was the Senior Vice-President of Finance, Chief Financial Officer, and Chief Accounting Officer of Leslie Fay Companies, a publicly traded corporation. In 2002, Polishan was convicted in a non-jury trial on eighteen counts relating to a substantial accounting fraud at Leslie Fay, and was sentenced to 108 months imprisonment. Polishan appealed the judgment but not the sentence, and on July 14, 2003 we affirmed his conviction. United States v. Polishan, 336 F.3d 234 (3d Cir.2003).
Polishan now brings this habeas petition alleging that his appellate counsel rendered ineffective assistance by not challenging the constitutionality of the federal sentencing guidelines during the direct appeal of his conviction. For the reasons that follow, we will affirm the District Court and deny the petition.1
I.
Because we write exclusively for the parties, we only discuss the facts and proceedings to the extent necessary for the resolution of this case.
Polishan was sentenced by the District Court on January 17, 2002. During sentencing, Polishan’s counsel argued that the District Court’s adjustments to Polishan’s guideline range were not based on facts found beyond a reasonable doubt at trial, thus violating the Supreme Court’s decision in Apprendi v. New Jersey, 530 U.S. 466, 120 S.Ct. 2348, 147 L.Ed.2d 435 (2000). The District Court rejected the Apprendi argument and sentenced Polish-an based on the adjusted guideline range. Polishan promptly filed a notice of appeal, but only challenged the judgment of conviction, not the sentence imposed by the District Court. We held oral argument on Polishan’s appeal on March 10, 2003, affirmed his conviction in a precedential opinion dated July 14, 2003, and issued a mandate on September 4, 2003. Polishan appealed to the Supreme Court but was denied cert on March 1, 2004.
Shortly before Polishan filed his cert petition, the Supreme Court granted cert in Blakely v. Washington, 542 U.S. 296, 124 S.Ct. 2531, 159 L.Ed.2d 403 (2004). The Court heard argument in Blakely on March 23, 2004 and issued its opinion on *749June 24, 2004. Later that summer, on August 2, 2004, the Court granted cert in United States v. Booker, 543 U.S. 220, 125 S.Ct. 738, 160 L.Ed.2d 621 (2005). The Court heard argument in Booker on October 4, 2004 and issued an opinion on January 12, 2005.
II.
Polishan’s principal contention is that his appellate counsel was constitutionally ineffective for failing to present the Apprendi argument in his brief on direct appeal. Specifically, Polishan argues that he would have been eligible for a resentencing pursuant to Booker had the Apprendi argument been included in his appellate brief.
A claim for ineffective assistance of counsel is evaluated under the standard set forth in Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). The standard has two prongs: Petitioner must show (1) that counsel’s performance was deficient and (2) that the deficient performance prejudiced the defense. Id. at 687, 104 S.Ct. 2052. The first prong requires petitioner to show that counsel made errors “so serious that counsel was not functioning as ‘counsel’ guaranteed by the Sixth Amendment.” Id. This showing can be made by demonstrating that the attorney’s performance was unreasonable under prevailing norms. United States v. Day, 969 F.2d 39, 42 (3d Cir.1992). The second prong requires petitioner to show that the errors were “sufficiently serious as to deprive the defendant of a fair trial, a trial whose result is reliable.” Strickland, 466 U.S. at 687, 104 S.Ct. 2052. To establish prejudice, the petitioner must show “a reasonable probability that, but for counsel’s unprofessional errors, the result of the proceeding would have been different.” United States v. Mannino, 212 F.3d 835, 840 (3d Cir.2000). For the reasons outlined below, we need not address whether the performance of Polishan’s counsel was deficient, as Polish-an cannot show a “reasonable probability” that the omission of the Apprendi argument affected the disposition of his appeal. See Strickland, 466 U.S. at 697, 104 S.Ct. 2052 (“[A] court need not determine whether counsel’s performance was deficient before examining the prejudice suffered .... If it is easier to dispose of an ineffectiveness claim on the ground of lack of sufficient prejudice, which we expect will often be so, that course should be followed.”).
Polishan is correct to note that we did hold a number of sentencing appeals c.a.v. pending the decisions in Blakely and Booker.2 See, e.g., United States v. Simmons, 124 Fed.Appx. 142 (3d Cir.2005), United States v. Hertzog, 131 Fed.Appx. 7 (3d Cir.2005), and United States v. Mortimer, — Fed.Appx. —, 2005 WL 318650 (3d Cir.2005). In each of those cases, however, the decision to hold the case c.a.v. was made well after the Supreme Court’s June 24, 2004 decision in Blakely, and either contemporaneous to or shortly after the Supreme Court granted cert on August 2, 2004 in Booker. Simmons was held c.a.v. on August 2, 2005; Hertzog was held c.a.v. on August 17, 2004; and Mortimer was held c.a.v. on August 19, 2004. In other words, we did not place federal sentencing cases on hold until Blakely had already been decided and the prospect of Booker-cast doubt on the continuing validity of the federal guidelines. Polishan’s direct appeal was heard before this Court more than a year before Hertzog, Simmons, or Mortimer,3 We affirmed Polishan’s con*750viction — and the Supreme Court denied cert on his subsequent petition — well before Blakely was decided by the Supreme Court. Accordingly, we cannot say that there was a “fair probability” that we would have held his appeal c.a.v. had his appellate counsel included an argument challenging the constitutionality of the federal sentencing guidelines.
We also do not see a fair probability that the Supreme Court would have acted on Polishan’s cert petition had his appellate attorney included the Apprendi argument. Polishan has still not cited “any federal sentencing decision that was pending review by the Supreme Court when it denied his certiorari petition and which was either vacated by the [Supreme] Court in light of Blakely or held for further consideration pending the outcome in Blakely.” United States v. Polishan, 481 F.Supp.2d 350, 358 (M.D.Pa.2007). And the assertion that the Supreme Court would have actually granted his cert petition had he included the Apprendi argument is, to quote the District Court, “entirely conjectural” — an exercise in possibilities, not probabilities. Id. at 357-58. Accordingly, Polishan has failed to show that he was prejudiced by his counsel’s omission of the Apprendi argument during his direct appeal.
III.
For the reasons outlined above, we will affirm the District Court’s opinion and deny Polishan’s petition.
. We have jurisdiction pursuant to 28 U.S.C. § 2253 and 28 U.S.C. § 1291.
. C.a.v. is an abbreviation of curia advisari vult, meaning “the court will be advised, will consider, will deliberate." In re Mystic Tank Lines Corp., 544 F.3d 524, 526 n. 1 (3d Cir.2008).
. Polishan also cites United States v. Benjamin, 125 Fed.Appx. 438 (3d Cir.2005). Like *750Hertzog, Simmons, and Mortimer, Benjamin was held c.a.v. in anticipation of the Supreme Court's decision in Booker, although the exact day it was held c.a.v. is somewhat unclear. In all other respects, however, Benjamin was like the appeals in Hertzog, Simmons, and Mortimer. Benjamin was heard before the Court on May 4, 2004, the same day as Simmons (and nearly fourteen months after argument in Polishan's direct appeal), and, like those other cases, was still pending before us when Blakely was decided.
|
01-04-2023
|
11-05-2022
|
https://www.courtlistener.com/api/rest/v3/opinions/8473446/
|
OPINION OF THE COURT
ALDISERT, Circuit Judge.
Gregory Raysor appeals from an order of the District Court of the District of New Jersey revoking two terms of supervised release and imposing two concurrent sentences of eight months’ imprisonment and two years’ supervised release after Raysor violated a condition of both terms of supervised release. Raysor contends that the District Court did not consider adequately the relevant 18 U.S.C. § 3553(a) and non-Guidelines factors raised at sentencing and thereby failed to fashion a minimally sufficient, individualized sentence. We conclude that the District Court did not abuse its sentencing discretion and we will affirm.1
I.
Because we write only for the parties we will discuss only the relevant legal precepts and only those facts relating thereto.
In 2005, Raysor pled guilty to conspiracy to commit bank fraud in violation of 18 U.S.C. § 371. On January 13, 2006, he was sentenced to 24 months in prison, three years of supervised release and restitution. On January 15, 2007, Raysor escaped from Lewisburg Federal Correctional Institution. He was apprehended and later pled guilty to escaping from a correctional facility in violation of 18 U.S.C. § 751(a). He was sentenced to nine months of imprisonment and three years of supervised release. The conditions of supervised release ordered, in relevant part, that Raysor “shall not commit another federal, state, or local crime.” In November 2008, during a period of supervised release for both the escape and bank fraud sentences, Raysor was arrested in New York City while in possession of cocaine. He subsequently pled guilty to criminal possession of a controlled dangerous substance in New York City Criminal Court.
In November 2008, the United States Office of Probation filed a formal petition to revoke Raysor’s supervised release, alleging that Raysor had violated several conditions of his supervised release. Ray-sor pled guilty to committing another federal, state, or local crime, a grade C violation of his supervised release in both the bank fraud and escape sentences. The Government dismissed the remaining charges. The Federal Sentencing Guidelines provided an 8-14 month range for violation of supervised release in the escape sentence. U.S. Sentencing Guidelines Manual § 7B 1.4(a). The Guidelines provided a 6-12 month range for violation of supervised release in the bank fraud *752sentence. Id. The statutory maximum was 24 months’ imprisonment for each violation with an additional term of supervised release. 18 U.S.C. § 3583(e)(3).
At sentencing, Raysor requested leniency based on mitigating factors pursuant to § 3553(a). He urged the District Court to limit his imprisonment to time served, with the remainder of the sentence to be served under house arrest with electronic monitoring. The District Court sentenced him to eight months of imprisonment with two years of supervised release for violating his supervised release in the escape sentence. The District Court sentenced him to an identical, concurrent sentence for violating his supervised release in the bank fraud sentence. The judgment was entered on January 27, 2009 and Raysor filed a timely notice of appeal on February 6, 2009.
II.
Revocation of supervised release is governed by 18 U.S.C. § 3583, which instructs a sentencing court to consider virtually all factors set forth in 18 U.S.C. § 3553 in imposing a sentence for violation of supervised release.2 After United States v. Booker, 543 U.S. 220, 125 S.Ct. 738, 160 L.Ed.2d 621 (2005), which rendered the Guidelines advisory, sentencing courts now have broad discretion in imposing sentences, subject to the requirement that they commence analysis with the properly calculated Guidelines range, adequately address the relevant § 3553(a) factors and fully consider all grounds properly advanced by the parties at sentencing. United States v. Vampire Nation, 451 F.3d 189, 196 (3d Cir.2006); see also United States v. Bungar, 478 F.3d 540, 543 (3d Cir.2007) (reasonableness requires the sentencing court to give “meaningful consideration” to the § 3553(a) factors and to reasonably apply those factors (quoting United States v. Cooper, 437 F.3d 324, 329 (3d Cir.2006))). A sentence imposed following revocation of supervised release is reviewed for procedural and substantive reasonableness. See United States v. Tomko, 562 F.3d 558, 567 (3d Cir.2009) (en banc); Bungar, 478 F.3d at 542 (applying reasonableness standard to revocation of supervised release). At both stages, the party challenging the sentence bears the burden of demonstrating unreasonableness and we review for abuse of discretion. Tomko, 562 F.3d at 567 (citing Gall v. United States, 552 U.S. 38, 128 S.Ct. 586, 597, 169 L.Ed.2d 445 (2007)); Bungar, 478 F.3d at 543 (our review is “highly deferential”). The sentencing court need not make findings on the record as to each factor if the record demonstrates that the court took the factors into account in sentencing. Bungar, 478 F.3d at 543; United States v. Lessner, 498 F.3d 185, 203 (3d Cir.2007). A sentence is not unreasonable simply because the sentencing court failed to give mitigating factors the weight the defendant contends they deserve. Lessner, 498 F.3d at 204. After examining the procedural propriety of the sentencing, we review the totality of the circumstances for substantive reasonableness. Gall, 128 S.Ct. at 597. Absent procedural error, we will affirm the sentencing court “unless no reasonable sentencing court would have imposed the same sentence on that particular defendant for the reasons the district court provided.” Tomko, 562 F.3d at 568.
III.
Raysor challenges his sentence as procedurally and substantively flawed. Raysor contends that his sentence was procedurally flawed because the District Court failed *753to adequately consider the relevant § 3553(a) factors, instead strictly adhering to the Guidelines’ sentence range. Second, Raysor contends that his sentence is substantively flawed because the District Court failed to take into account relevant non-Guidelines factors, including his wife’s illness, the nature of the underlying violation, his drug addiction and his strong support network.
We reject both contentions. The record demonstrates that the District Court engaged in a textbook discussion of the applicable § 3553(a) factors. The District Court entertained argument from defense counsel, the United States, and Raysor himself before thoroughly analyzing each relevant factor and explaining both the type and duration of sentence imposed. The record further demonstrates that the District Court adequately addressed the non-Guidelines factors argued by Raysor at his sentencing.
The District Court did not strictly adhere to the Guidelines. The Court clearly understood its role, as evinced by its explanation of its statutory duty at sentencing:
So in looking at the sentence that’s sufficient but not greater than necessary to, one, promote respect for the law and reflect the seriousness of what occurred here.
(J.A. 26.) Contrary to Raysor’s argument that the District Court was not apprised of its discretion in sentencing, the Court acknowledged that it was not bound by the Guidelines and that it had discretion to consider mitigating factors raised by Ray-sor during sentencing:
And while I’ve accepted the plea of guilty in this matter, I’m not bound to impose any sentence other than what the Court feels in its discretion is appropriate.
(J.A. 24.)
The District Court addressed the substance of each relevant § 3553(a) factor in detail. The District Court considered the nature and circumstances of the offense and the history and characteristics of the defendant (§ 3553(a)(1)):
I did have the opportunity, Mr. Raysor, to read the violation notice as well as the presentence report.... And obviously there’s this escape charge, which is an additional aspect of your supervised release .... One, that obviously you’re on supervised release for two separate offenses for which you are now entering a plea of guilty because you’ve gotten arrested while you’re on supervised release. But also there have been just a number of non-compliant areas.
(J.A. 23-24, 26.) The District Court addressed the need to afford adequate deterrence and the need to protect the public from future crimes (§ 3553(a)(2)(B)-(C)), noting that “when a person is placed on supervised release, it is extremely important ... that people understand ... that these are requirements that you have to follow.” (J.A. 25.) Contrary to Raysor’s argument that the Court failed to address his need for rehabilitation versus incarceration, the District Court explicitly considered both Raysor’s drug addiction and his need for treatment (§ 3553(a)(2)(D)):
The bigger concern is there is a severe drug problem which requires, and certainly you need treatment for, and it appears based on the record and my conversations with your probation officer, that there has been, I don’t know if it’s an inability or whatever the case maybe [sic], it has resulted in your not seeking treatment and taking advantage of that treatment. I still think that that’s something that the Court should be concerned about and should try to fashion a sentence that could give you that opportunity to get treatment and try to rectify what maybe [sic] at the heart of a lot of the activity that you are involved in.
*754(J.A. 24.) The District Court additionally considered the Guidelines and the applicable policy statements, while directly addressing Raysor’s request for an alternative sentence without further incarceration (§ 3553(a)(4)-(5)):
But what I think [defense counsel] is arguing for on your behalf, which is some type of electronic monitoring. I don’t think that gets to the heart of the problem, quite honestly, and that is the Court’s concern.
(J.A. 25-26.) Furthermore, the Court addressed the need to provide restitution to victims (§ 3553(a)(7)), noting that Raysor had not “paid a penny towards” his restitution obligation. (J.A. 25.) At sentencing and on appeal, Raysor has failed to present evidence of sentence disparities. He has not met his burden on appeal to prove that his sentence resulted in unwarranted sentencing disparities pursuant to factor § 3553(a)(6).
Raysor vigorously contends that the District Court disregarded his non-Guidelines argument that his wife’s stage-four ovarian cancer and attendant need for care were mitigating factors. To the contrary, the District Court explicitly addressed that argument during the sentencing hearing:
I did read the letter from Miss Johnson, and certainly her circumstances are very — I’m very sympathetic to her situation. And she appears to rely on you greatly. But the Court has a responsibility as well, and it’s a responsibility that goes beyond Miss Johnson.
(J.A. 24-25.) We have considered Ray-sor’s additional non-Guidelines arguments and conclude that he has not met his burden of demonstrating substantive unreasonableness by showing that “no reasonable sentencing court would have imposed the same sentence on that particular defendant for the reasons the district court provided.” Tomko, 562 F.3d at 568.
******
After reviewing the record, we find no merit in Raysor’s contention that the District Court failed to adequately consider the applicable § 3553(a) factors and erroneously focused only on the recommended Guidelines range. The record similarly controverts Raysor’s argument that the District Court disregarded non-Guidelines factors raised at sentencing and therefore failed to fashion a minimally sufficient, individualized sentence. At sentencing, the District Court entertained extensive argument and gave meaningful consideration to both the relevant § 3553(a) and the non-Guidelines factors to arrive at a sentence that was both procedurally and substantively reasonable. The District Court did not abuse its discretion under this Court’s ruling case law.
We have considered all the contentions presented by the Appellant and conclude that no further discussion is necessary.
The judgment of the District Court will be affirmed.
. The District Court had subject matter jurisdiction pursuant to 18 U.S.C. § 3231 and 18 U.S.C. § 3583(e)(3). We have jurisdiction pursuant to 18 U.S.C. § 3742(a)(1) and 28 U.S.C. § 1291.
. 18 U.S.C. § 3583(e) omits § 3553(a)(2)(A) (punitive purposes of sentencing) and § 3553(a)(3) (kind of sentences available) from the § 3553(a) factors to be considered when sentencing a defendant for violation of supervised release.
|
01-04-2023
|
11-05-2022
|
https://www.courtlistener.com/api/rest/v3/opinions/8473448/
|
OPINION OF THE COURT
ALDISERT, Circuit Judge.
Appellant David Connolly appeals from an order of the District Court for the District of New Jersey imposing a sentence of 100 months’ imprisonment after a jury found him guilty of being a felon in possession of a firearm. Connolly contends that the District Court’s refusal to suppress evidence of a firearm in Connolly’s possession was reversible error because the investigating officers did not possess the requisite reasonable suspicion to justify a Terry frisk. He further contends that the District Court committed reversible error in denying Connolly a downward adjustment in offense level under United States Sentencing Guidelines § 3E1.1 for acceptance of responsibility. *756We reject both contentions and affirm the judgment of the District Court.1
I.
Because we write only for the parties we will discuss only the relevant legal precepts and only those facts relating thereto.
On May 1, 2007, Detectives Hector Rodriguez (“Detective Rodriguez”) and Gerardo Rodriguez were patrolling an area of Newark, New Jersey that had been recently plagued by purse-snatchings. The detectives became suspicious after observing Connolly attempt to speak to two women who appeared inhospitable to his advances. The detectives believed, based on their collective experience, that this was behavior characteristic of purse-snatching. Detective Rodriguez subsequently approached Connolly and identified himself as a police officer. Connolly appeared visibly nervous to Detective Rodriguez and almost immediately placed his hands in his pockets. The detective asked Connolly to remove his hands from his pockets and when Connolly did not comply, the detective ordered him to do so. When Connolly again failed to comply, Detective Rodriguez performed a frisk, which produced a fully loaded .38-caliber handgun concealed in Connolly’s waistband. On July 9, 2007, a grand jury returned an indictment charging Connolly with one count of possession of a firearm by a convicted felon in violation of 18 U.S.C. § 922(g)(1).
After pleading not guilty, Connolly filed a motion to suppress on October 24, 2007. The District Court held a hearing at which both arresting officers were examined at length. Detective Rodriguez testified that “[ajfter he refused a second time, now I felt that I needed to pat him down because there’s a reason why he’s not removing his hands from his pockets, so I approached him.” (App.31.) The Court ultimately denied the motion in February 2008. Connolly’s two-day trial commenced on March 11, 2008 and a jury found him guilty of being a felon in possession of a handgun on March 12, 2008. The District Court sentenced Connolly to 100 months’ imprisonment with three years’ supervised release, denying him a downward adjustment for acceptance of responsibility under U.S. Sentencing Guidelines § 3E1.1. Connolly filed a timely notice of appeal on July 28, 2008.
II.
In considering a motion to suppress, we review the District Court’s factual findings for clear error, and we exercise plenary review over its application of the law to those facts. United States v. Mathurin, 561 F.3d 170, 173 (3d Cir.2009).
Police may make a brief investigatory stop for reasonable suspicion of criminal activity. Terry v. Ohio, 392 U.S. 1, 30, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968). Such a detained person may be frisked for weapons if the police have a reasonable belief that the person is armed and dangerous. Id. at 27, 88 S.Ct. 1868. We must first inquire whether the detectives had the “minimal level of objective justification” for a Terry stop. United States v. Sokolow, 490 U.S. 1, 2, 109 S.Ct. 1581, 104 L.Ed.2d 1 (1989). This requires “something more than an inchoate and unpartic-ularized suspicion.” Id. Police officers may “draw on their own experience and specialized training to make inferences from and deductions about the cumulative information,” but must act on more than “a mere ‘hunch’ ” to meet the requirements of reasonable suspicion. United States v. Arvizu, 534 U.S. 266, 274, 122 S.Ct. 744, 151 L.Ed.2d 740 (2002) (quoting Terry, 392 U.S. at 27, 88 S.Ct. 1868). We have observed that the test is one of “reasonable*757ness given the totality of circumstances,” which can include location, history of crime in the area, a suspect’s nervous behavior and evasiveness and police officers’ “common sense judgments and inferences about behavior.” Johnson v. Campbell, 332 F.3d 199, 206 (3d Cir.2003) (quoting Illinois v. Wardlow, 528 U.S. 119, 124-125, 120 S.Ct. 673, 145 L.Ed.2d 570 (2000)). In reviewing a subsequent Terry frisk for reasonable suspicion, “the issue is whether a reasonably prudent man in the circumstances would be warranted in the belief that his safety or that of others was in danger.” Terry, 392 U.S. at 27, 88 S.Ct. 1868.
Connolly contends that the initial stop was impermissible because the detectives were unable to articulate a chain of inferences that led logically to their belief that Connolly was engaging in criminal activity. To the contrary, the officers were on patrol in an area that had been the site of recent purse-snatchings. They observed Connolly approach not one, but two women, who apparently rebuffed his advances. In the officers’ experience, this behavior was consistent with the preliminary stages of purse-snatching. Under the totality of the circumstances, the initial Terry stop was permissible.
Connolly next contends that the District Court erred in admitting the handgun found during the Terry frisk because the officers did not possess a reasonable and particularized suspicion that he was armed and dangerous. We disagree, on our reading of the record, the District Court properly concluded that the detectives had a sufficiently particularized and objective suspicion that Connolly might be armed and dangerous. When approached, Connolly appeared nervous and evasive. After Detective Rodriguez identified himself as a police officer, Connolly immediately placed his hands in his pockets and refused both a request and a direct order to remove them. We conclude that from this sequence of events, the attendant circumstances, and their combined 30 years of experience, the police officers could reasonably suspect that Connolly might be armed and dangerous. Under the totality of the circumstances, the Terry frisk was permissible. The District Court did not err in denying Connolly’s motion to suppress the handgun.
III.
This Court reviews for clear error the factual findings underlying a sentencing court’s denial of a Sentencing Guidelines reduction for acceptance of responsibility. United States v. Lessner, 498 F.3d 185, 199 (3d Cir.2007). We reverse only if we are “left with a definite and firm conviction that a mistake has been committed.” Id. “The sentencing judge is in a unique position to evaluate a defendant’s acceptance of responsibility. For this reason, the determination of the sentencing judge is entitled to great deference on review.” U.S. Sentencing Guidelines § 3E1.1 cmt. n. 5.
Section 3E1.1(a) of the Guidelines provides that a sentencing court may grant a two-level reduction in offense level if the defendant has clearly demonstrated acceptance of responsibility. The reduction contemplates a defendant “truthfully admitting the conduct comprising the offense(s) of conviction, and truthfully admitting or not falsely denying any additional relevant conduct for which the defendant is aecountable[.]” U.S. Sentencing Guidelines § 3E1.1 cmt. n. 1(a); see Lessner, 498 F.3d at 199. Although this downward adjustment does not generally apply to defendants who go to trial, the Guidelines expressly recognize exceptions to this general rule, such as when defendants go to trial to preserve constitutional issues.2
*758Connolly contends that because the government did not permit him to take a conditional plea, he was forced to go to trial to preserve his Fourth Amendment objection. Additionally, he argues that he made no pretrial statements denying possession of the gun and that this militates in favor of a finding of acceptance of responsibility. The District Court found that Connolly did not demonstrate acceptance of responsibility because: Connolly did not waive his right to a jury; he subpoenaed witnesses lacking knowledge of relevant events; he refused to stipulate to certain non-controversial elements of the crime; and he vigorously attacked the credibility of the testifying officers, even suggesting that their testimony was false. The District Court assessed the “totality of the situation” and determined that Connolly did not accept responsibility. United States v. McDowell, 888 F.2d 285, 293 n. 2 (3d Cir.1989). The District Court is in the unique position to best gauge the defendant’s acceptance of responsibility or lack thereof and as such we accord great deference. We cannot say that the record before us leaves us with “a definite and firm conviction that a mistake has been committed.” Lessner, 498 F.3d at 199.
* * * * * *
We have considered all the contentions presented by the appellant and conclude that no further discussion is necessary.
The judgment of the District Court will be affirmed.
. The District Court had subject matter jurisdiction pursuant to 18 U.S.C. § 3231. We have jurisdiction pursuant to 18 U.S.C. § 3742(a)(1) and 28 U.S.C. § 1291.
. The Sentencing Guidelines provide:
This adjustment is not intended to apply *758to a defendant who puts the government to its burden of proof at trial by denying the essential factual elements of guilt, is convicted, and only then admits guilt and expresses remorse. Conviction by trial, however, does not automatically preclude a defendant from consideration for such a reduction. In rare situations a defendant may clearly demonstrate an acceptance of responsibility for his criminal conduct even though he exercises his constitutional right to a trial. This may occur, for example, where a defendant goes to trial to assert and preserve issues that do not relate to factual guilt (e.g., to make a constitutional challenge to a statute or a challenge to the applicability of a statute to his conduct). In each such instance, however, a determination that a defendant has accepted responsibility will be based primarily upon pre-trial statements and conduct.
U.S. Sentencing Guidelines § 3E1.1 cmt. n. 2.
|
01-04-2023
|
11-05-2022
|
https://www.courtlistener.com/api/rest/v3/opinions/8473450/
|
*760OPINION OF THE COURT
ALDISERT, Circuit Judge.
Defendant Bobcat Company1 appeals from a judgment entered by the District Court for the Western District of Pennsylvania on a jury verdict finding Bobcat fully liable for injuries sustained by Thomas Altman in an accident involving a Bobcat Model 709 backhoe attachment. Following a seven-day trial, the jury found Bobcat’s negligence to be the sole cause of Altman’s injuries and awarded $2,991,337.00 in damages to Plaintiffs Thomas and Roxana Altman. The District Court denied Bobcat’s motion for a new trial, and this appeal followed.
Bobcat urges this Court to reverse the judgment below and order a new trial, contending that: (1) the District Court should have ordered a mistrial because Juror 73’s trial misconduct substantially prejudiced Bobcat; (2) the Court committed prejudicial error when it permitted the jury to view a computer animation depicting the Model 709 backhoe attachment and feasible alternative designs; and (3) the Court committed prejudicial error when it permitted the Altmans to cross-examine a key Bobcat witness using an “unrelated” case from the Washington Court of Appeals. We have considered each of these contentions and will affirm the decision of the District Court.2
I.
Because the parties are familiar with the facts and proceedings in the District Court, we will recite them only as necessary to the discussion.
Thomas Altman, a hazard responder for First Energy, was working with a First Energy crew to locate and repair damaged underground electrical wires. Altman’s coworker, Gregory Muscarella, was operating a Bobcat Model 863G skid-steer loader with a Bobcat Model 709 backhoe attachment. While Altman was standing in the swing zone of the backhoe attachment, Muscarella inadvertently activated the backhoe’s control lever with his knee. The backhoe’s bucket rotated 180 degrees to the right and struck Altman in the head, causing irreversible brain damage.
Mr. and Mrs. Altman sued Bobcat and went to trial on two theories of liability— negligent design and negligent failure to warn. Specifically, the Altmans alleged that Bobcat negligently designed the backhoe’s operator compartment by placing an unguarded operational control lever at knee height and in such close quarters that inadvertent activation was inevitable. The Altmans also alleged that Bobcat negligently failed to warn operators that the backhoe’s bucket and swing arm could pivot even after the operator released the hand controls to stop operation. On April 7, 2008, the jury found Bobcat’s negligence to be the sole cause of the Altmans’ injuries and returned a $2,991,337.00 verdict in their favor. Final judgment was entered on April 8, 2008. On April 21, 2008, Bobcat filed a motion for a new trial, which was denied on July 14, 2008, 2008 WL 2779301. Bobcat timely appealed on July 18, 2008.
II.
Bobcat contends that the District Court should have declared a mistrial after learning that Juror 73 conducted independent research during the trial by sitting in the cab of what she believed to be a Bobcat machine. During deliberations, Juror 73 described her experience to other jurors and reported that the Bobcat’s operator compartment was “tight.” Almost imme*761diately, the jury foreperson notified Chief Judge Ambrose, who dismissed Juror 73 and conducted voir dire of the remaining jurors. After questioning each juror individually, the Judge “did not find any of the remaining jurors to be biased, prejudiced or unable to render an impartial verdict based on the statements of Juror 73.” (App.37.) Bobcat disagrees, and contends that we should order a new trial because Juror 73’s statements “substantially prejudiced Bobcat.” (App.20.)
“[E]very litigant who is entitled to trial by jury is entitled to an impartial jury, free to the furthest extent practicable from extraneous influences that may subvert the fact-finding process.” Waldorf v. Shuta, 3 F.3d 705, 709 (3d Cir.1993). When jurors obtain extrinsic information during jury deliberations, a new trial is warranted if the objecting party “likely suffered substantial prejudice as a result of the jury’s exposure to the extraneous information.” United States v. Lloyd, 269 F.3d 228, 238 (3d Cir.2001) (citation and quotation omitted). Nevertheless, a new trial is not required if the jury can remain impartial and unprejudiced and can confine its deliberations to the record evidence. Waldorf, 3 F.3d at 709. Thus, when “the trial court learns that [the jury] may have received extra-record information with a potential for substantial prejudice, [it] must determine whether the members of the jury have been prejudiced.” Gov’t of V.I. v. Dowling, 814 F.2d 134, 141 (3d Cir.1987). We have long expressed a preference for individual voir dire questioning of each potentially tainted juror. Id. at 137.
We accord “great deference to the trial judge’s wide discretion in using voir dire to determine the presence or absence of prejudice.” Id. Consequently, we employ an abuse-of-discretion standard to review both the District Court’s conduct of voir dire and its determination that the jurors had not been prejudiced. Waldorf, 3 F.3d at 710. Under our deferential review, a district court need not pursue any specific line of questioning on voir dire. Indeed, “any method is sufficient provided it is probative on the issue of impartiality.” Id. (citations omitted). This deferential standard places a heavy burden on Bobcat, which must demonstrate that the District Court abused its broad discretion in determining that the jurors would remain impartial.
We are satisfied that the District Court did not abuse its discretion in conducting voir dire or concluding that Juror 73’s misconduct would not prejudice the proceedings. After it learned of the misconduct, the Court immediately dismissed Juror 73 (App.366-368) and conducted voir dire of the remaining jurors (App.368-385). Consistent with Waldorf, the Court’s questions elicited testimony probative of the jurors’ impartiality. See Waldorf, 3 F.3d at 710. The jurors each testified that Juror 73’s statements would neither change nor influence then' opinions and that they could disregard completely Juror 73’s improper statements.3 Moreover, in light of the Court’s broad discretion to conduct voir dire using “any method” aimed at discovering prejudice, we have no criticism of the Court’s decision to permit counsel to probe the prejudice issue with their own questions. See id. On this record, we determine that the Court did not abuse its *762discretion in either its conduct of voir dire or its conclusion that the jurors had not been prejudiced.
Contrary to Bobcat’s contention, the Court’s voir dire of the jury foreperson (Juror 6) did not suggest that one or more jurors feared that Juror 73’s comments would undermine their impartiality. Bobcat reads Chief Judge Ambrose’s colloquy with Juror 6 to suggest that one juror subjectively believed that she had been prejudiced by Juror 73’s statements:
JUROR NO. 6: It was right at that one point [during Juror 73’s explanation of Juror 73’s encounter with a Bobcat machine] where one of the other jurors said she felt that was inappropriate, given the boundaries that we were given, and not to discuss any of the particulars of the case, and felt that this was something that might have swayed her opinion one way or another and asked for me to bring it forward to the Judge.
(App. 368 (emphasis added).) Absent the benefit of subsequent clarification, we might agree. Unfortunately for Bobcat, Juror 6 immediately clarified that no member of the jury panel indicated to Juror 6 that Juror 73’s statements would sway his or her opinion. (App.369-370.) We omit the relevant excerpts, but we have reviewed the transcript and uncover no evidence of subjective prejudice. (App.368-372.) We observe also that no juror’s voir dire statement corroborates Bobcat’s subjective prejudice theory, confirming our view that this theory lacks merit.
We are unpersuaded by Bobcat’s remaining arguments and dismiss them with little elaboration. Bobcat urges that we should presume prejudice in cases involving juror experiments. We disagree, and note that this Court has declined to adopt such a presumption in cases like this, where circumstances are not “sufficiently aggravated.” Waldorf, 3 F.3d at 711 n. 6.
Bobcat additionally contends that the District Court should have determined that Juror 73’s statements were so fundamentally prejudicial that the jurors could not, as an objective matter, disregard them. We disagree. We have held that “absen[t] ... an examination designed to elicit answers which provide an objective basis for the court’s evaluation, merely ... obtaining [jurors’] assurances of impartiality is insufficient to test that impartiality.” Id. at 712 (citation and quotation omitted). Contrary to Bobcat’s contention, the District Court’s prejudice inquiry did not rely on the jurors’ bare and subjective assurances of their own impartiality. The judge asked each juror what she heard Juror 73 say, whether any other juror was exposed to the extraneous information and whether each juror subjectively believed she could disregard the remarks. (App.346-383.) The judge listened to the jurors’ responses, observed their demeanors and determined that each would remain impartial. We believe the Court’s questions afforded an objective basis for its evaluation of prejudice and recognize that the District Court was in a superior position to assess the prejudicial effects of Juror 73’s misconduct.4 We determine that Chief Judge *763Ambrose acted well within her discretion, and we will defer to her conclusion that the jury had not been prejudiced.
III.
Bobcat next challenges the Court’s decision to allow the jury to view a computer animation depicting the Bobcat and backhoe attachment and alternative designs. At trial, the Altmans’ expert Christopher Ferrone used a computer-animated backhoe operator and Model 709 to explain why he believed Model 709’s design created a risk of inadvertent activation. The animation superimposed hypothetical design modifications over Model 709’s existing design to suggest how that risk might be eliminated.
The District Court overruled Bobcat’s objections at trial, which alleged that the animation was unduly prejudicial, misleading, irrelevant, lacked foundation, and amounted to an improper accident reconstruction. In this appeal, Bobcat contends that the evidence was “unfairly prejudicial” under Rule 403 and should not have been admitted without foundational evidence that the “simulation was substantially similar to the facts of the case.” (Appellant’s Br. 36.) Because evidentiary rulings are committed to the sound discretion of the district court, we review for abuse of discretion. We will reverse a trial judge’s decision to admit or exclude evidence under Rule 403 only if it was “arbitrary and irrational.” McKenna v. City of Philo., 582 F.3d 447, 461 (3d Cir.2009) (citation and quotation omitted). That demonstrably was not the case here.
A district court has discretion to exclude relevant evidence if its probative value is substantially outweighed by the danger of “unfair prejudice” or “misleading the jury.” See Rule 403, Federal Rules of Evidence. In applying Rule 403 to visual demonstrations, we have determined that depictions that appear to “recreate” an accident are significantly more likely to confuse the jury than depictions which merely “illustrate principles forming an expert’s opinion.” Hinkle v. City of Clarksburg, 81 F.3d 416, 425 (4th Cir.1996); Harkins v. Ford Motor Co., 437 F.2d 276, 278 (3d Cir.1970). Thus, for demonstrative evidence closely resembling the actual accident, courts generally require the proponent to establish that the demonstration shares substantial similarity with accident conditions. E.g., McKnight By & Through Ludwig v. Johnson Controls, 36 F.3d 1396, 1402, 1403 (8th Cir.1994). By contrast, if a demonstration does not appear to recreate the accident, Rule 403 generally does not require a foundational showing of similarity -with accident conditions. Gilbert v. Cosco, Inc., 989 F.2d 399, 402 (10th Cir.1993); Champeau v. Fruehauf Corp., 814 F.2d 1271, 1278 (8th Cir.1987); cf. Harkins, 437 F.2d at 278. The test is “not one of labels,” but “whether the demonstration is sufficiently close in appearance to the original accident to create the risk of misunderstanding by the jury, for it is that risk that gives rise to the special requirement to show similar conditions.” Fusco v. Gen. Motors Corp., 11 F.3d 259, 264 (1st Cir.1993).
The District Court concluded, and we cannot disagree, that the Altmans’ computer animation was admissible under Rule 403 without a foundational showing of similarity.5 The Court carefully considered Bobcat’s objection (App.226), determined that unfair prejudice or confusion could be mitigated by cross-examination and limiting jury instructions (App.228), and concluded that “the jury understands it is not an accident reconstruction” (App.228-229). *764We agree. The Altmans’ depiction — a series of sketches interspersed -with brief animations — is not at all lifelike. It clearly illustrates Ferrone’s testimony and does not appear even remotely to be a recreation of the accident. (App.551.) To remove all doubt, the Court instructed the jury that the animation was not a recreation and highlighted differences between the animation and the facts as adduced at trial. (Appellee’s Br. 53.) After reviewing the record and the evidence itself, we determine that the depiction evidence was not “sufficiently close in appearance to the original accident to create the risk of misunderstanding by the jury” or prejudice to Bobcat. Fusco, 11 F.3d at 264. We hold that the District Court did not abuse its discretion in permitting the jury to view this evidence.
IV.
Bobcat next charges that the Court erred in permitting the Altmans’ attorney to cross-examine its sole corporate witness, Product Safety Manager Thomas Ihringer, using an “unrelated” Washington state case, Gammon v. Clark Equipment Co., 38 Wash.App. 274, 686 P.2d 1102 (1984). To support its argument that Model 709 was safe, Bobcat presented Ihringer’s testimony that Bobcat had never received a report of an accident similar to Altman’s. (App.260, 293.) On cross-examination, the Altmans questioned Ihringer about Gammon, a case in which Clark (Bobcat’s parent) violated discovery rules and repeatedly refused “to turn over ... accident reports.” Gammon, 686 P.2d at 1105. After seven questions on Gammon, Bobcat objected that the Gammon line of questioning was “collateral” because it related to a discovery issue that “has nothing to do with [the Altman] case.” (App.302.) The Court overruled Bobcat’s objection, agreeing with the Altmans that the questioning was “all about credibility.” (App.302.) In subsequent questioning the Alt-mans’ attorney elicited testimony, over Bobcat’s general objection, that Clark had been sanctioned in Gammon for discovery violations. The next day, after the close of evidence, Bobcat moved for a mistrial, alleging for the first time that the Gammon questions violated Rules 403 and 608. In this appeal, Bobcat renews its objections based on relevance and Rules 403 and 608.
We admit doubts about the propriety of the Gammon questions and are not absolutely certain they logically undermined either Ihringer’s credibility or the integrity of Bobcat’s accident reporting system. Even so, we cannot say that the District Court abused its discretion in overruling Bobcat’s relevancy objection to this line of questioning. Relevance is a concept expansively construed, and we do not consider the Gammon questions to be completely irrelevant to the Altmans’ claims.6 It is another matter entirely that Gammon may have been allegedly relevant only for improper purposes.
We further determine, under a dear-error standard, that the Court did not err *765in overruling Bobcat’s objection to the “sanctions” question or its belated objections under Rules 408 and 608. See Rule 103(a)(1) (authorizing only dear-error review for general objections unless specific ground apparent from context); United States v. Sandini, 803 F.2d 123, 126-127 (3d Cir.1986) (determining that timely relevancy objection did not preserve for appellate review untimely objections under Rules 403 and 404(b)). In our tradition, the initiative in excluding improper evidence is left entirely to the opponent, who must object to disputed evidence in a specific, timely manner. This requirement is not a trap for the unwary, but is designed to alert the trial court to evidentiary defects so that the court and counsel may immediately remedy those defects. Cf. Estelle v. Williams, 425 U.S. 501, 509 n. 3, 96 S.Ct. 1691, 48 L.Ed.2d 126 (1976). An objection must, therefore, “suppl[y] the Court with sufficient information ... [to] determine the ground of the objection and ... make an informed and intelligent ruling.” 1 Wigmore, Evidence § 18. Consequently, we examine the Court’s rulings in light of the objections, arguments and evidence proffered by Bobcat at trial.
Under these principles, we cannot say that it was clear error for the Court to overrule Bobcat’s “sanctions” objection or its belated Rule 403 and 608 objections. Our review of the record suggests that the Court reasonably understood Ihringer’s testimony as establishing his own participation and malfeasance in Bobcat’s prior litigation misconduct. (App.284, 285, 286, 300, 301.) Earlier testimony established that during the Gammon litigation, Ihringer was the Clark employee responsible for furnishing accident reports for litigation at the request of Clark’s counsel. (App.283-284.) Ihringer also testified that he attended the Gammon trial and had assisted in pretrial discovery. When asked about Clark’s conduct in the Gammon case, Ihringer frequently responded in terms of what “we” and “I” did. (App.300-302.) Based on the trial Court’s understanding of the testimony, the Gammon questions, including the “sanctions” question, were proper under Rule 608.
Significantly, Bobcat forewent multiple opportunities to correct the Court’s understanding of the testimony, if that understanding was indeed erroneous. In her colloquy with Bobcat’s counsel, Chief Judge Ambrose explained, “I think what [sic] Mr. Hartman said he’s introducing [the Gammon questions] for credibility.” (App.302.) At that point, Bobcat should have immediately asserted its Rule 608 objection and should have sought to clarify Ihringer’s involvement in the Gammon matter. It did not. Re-direct would have presented another opportunity to develop this information, but Bobcat declined the opportunity. Indeed, Bobcat points us to no place in the record where it informed the trial court of the factual basis for its objection to the Gammon cross-examination. In light of Bobcat’s failure to apprise the Court of the basis of its objections, we determine that the Court did not commit clear error when it overruled Bobcat’s objections under Rules 403 and 608.7 We *766will not, therefore, disturb the Court’s evi-dentiary rulings with respect to the Gammon questions.
* * * * *
We have considered all contentions presented by the parties and conclude that no further discussion is necessary.
The judgment of the District Court will be AFFIRMED.
. Bobcat Company is an unincorporated business unit of Clark Equipment Company.
. The District Court had jurisdiction pursuant to 28 U.S.C. § 1332. This Court has jurisdiction pursuant to 28 U.S.C. § 1291.
. The question posed to Juror 8 was typical: “Do you feel that anything that [Juror 73] said would in any way affect your ability to render a fair verdict in this case?” Juror 8’s response was also typical: “No I don’t.” (App. 375.) Our review of the record reveals that Chief Judge Ambrose posed this question, or a substantively identical question, to each juror. (App.368, 373, 375, 378, 380, 382, 384-385.) Each juror assured the Court that he or she could disregard Juror 73's statements and could render a fair, impartial verdict.
. Two additional circumstances assure us that the Court had objective indicia that the jury would remain impartial. First, the jury had already demonstrated its ability to follow the Court’s instructions by reporting Juror 73’s misconduct almost immediately (App.369). Objectively speaking, the jury’s obedience gave the Court reason to believe the jury would follow instructions to decide the case only on the evidence adduced at trial. Second, the Court was doubtless aware that Juror 73’s statement that the compartment was "tight” was cumulative of other uncontested evidence. Notwithstanding Bobcat's argument to the contrary, no witness testified that the operator’s compartment was anything but "tight.” The uncontested nature of this evidence objectively suggests that Juror 73's *763statements would not, and could not, prejudice the jury.
. The Court’s Rule 403 analysis was implicit in the trial colloquy. See Forrest v. Beloit Corp., 424 F.3d 344, 355 (3d Cir.2005).
. As Professor Wigmore has explained,
The modern theory of relevancy has been dubbed logical relevancy. This theory contains a number of tenets, one being the claim that evidence having any probative value, however slight, is relevant and therefore admissible in the absence of a specific exclusionary rule or a specific reason, such as undue prejudice, warranting its exclusion. ... This expansive understanding of what it is that makes evidence "relevant” makes it quite difficult to assert with any confidence that any evidence is irrelevant to anything, and close analysis in a modem vein of decisions that purport to exclude evidence for its irrelevancy usually serves to demonstrate that the supposedly irrelevant evidence was in fact excluded (or should have been) for reasons quite apart from irrelevance, such as undue prejudice or undue consumption of time.
1 Wigmore, Evidence § 9.
. In light of the extremely deferential standard for reviewing a trial judge's Rule 403 balancing decisions, we determine that the Court did not commit clear error in rejecting Bobcat's belated Rule 403 objections.
Even were we to decide this evidentiary issue in Bobcat’s favor, we conclude that the alleged errors would be harmless. Error attributable to an evidentiary ruling is "harmless” only if it is "highly probable that the error did not affect the outcome of the case.” Becker v. ARCO Chem. Co., 207 F.3d 176, 180 (3d Cir.2000) (citation and quotation omitted). Bobcat lodged its belated objections only after the Altmans’ attorney had asked, and received answers to, seven Gammon-based questions. This testimony (1) revealed that Clark had failed to produce records in *766the Gammon proceeding, (2) suggested that Ihringer had been involved in the discovery abuses, and (3) attacked Ihringer's "credibility." (App.300-302.) By then, most of the "damage” of which Bobcat complains, was already done. That the jury heard these matters was not attributable to the District Court's ruling, but to Bobcat's failure to timely object. Chief Judge Ambrose herself highlighted this issue: "I don't know what I would have done if the objection would have been made after the first question. I don't know if I would have thought it went to credibility then or not, but that opportunity went by and I don't know what my ruling would have been." (App.346-347.)
Moreover, in view of the jury’s demonstrated ability to obey jury instructions, Chief Judge Ambrose's curative instructions were more than sufficient to mitigate any unfair prejudice. (App. 350-351 ("[Tjhere's no evidence that Mr. Ihringer and/or the defendant Bobcat withheld any evidence of other accidents involving the machines at issue here. I want to instruct you that the incident that Mr. Hartman questioned Mr. Ihringer about yesterday occurred many years ago, in another state, and in a totally unrelated incident.”).)
Finally, we disagree that any error was harmful to the extent that it impugned Ihringer’s credibility and allegedly unfairly prejudiced Bobcat’s key "design defense.” Our review of the record demonstrates that the evidence adduced in the seven-day trial overwhelmingly supported the Altmans' negligence claim. The Gammon questions comprised a very small portion of this evidence, occupying only five pages of Ihringer's sixty-page trial testimony, which itself occupied a fraction of one day in a seven-day trial. Moreover, prior to the Gammon questions, the Altmans' cross-examination of Ihringer had substantially undercut Bobcat's "design defense” that no previous accidents had occurred by demonstrating that Bobcat’s accident-reporting system did not track "near-misses” (incidents and accidents which did not result in injuries). In view of these circumstances, we determine that the alleged error would be harmless.
|
01-04-2023
|
11-05-2022
|
https://www.courtlistener.com/api/rest/v3/opinions/8473454/
|
OPINION
BARRY, Circuit Judge.
Centrix HR, LLC (“HR”) appeals various aspects of the final order of the Magistrate Judge, following a bench trial, in which the Magistrate Judge resolved a contractual dispute involving HR and Defendants Centrix HR Logistics, Inc. (“Logistics”), William Black (Logistics’ owner), and On-Site Staff Management, Inc. (“On-Site,” a successor to Logistics) (collectively “Defendants.”). Defendants cross-appeal as to one issue. We will affirm except as to the award of counterclaim damages, which we will remand for further consideration.
I.
Because we write only for the parties, we recite only those facts as found by the Magistrate Judge that are relevant to our analysis. On May 15, 2002, HR and Logistics entered into a Licensing Agreement (the “Agreement”), whereby Logistics agreed to generate sales of temporary personnel staffing contracts and HR agreed to provide administrative functions for Logistics including the collection of revenues from employers and the payment of salaries, benefits, payroll taxes, and other administrative expenses. Among other things, the Agreement required HR to provide regular reports and financial statements to Logistics, and it contained a non-compete clause, providing that Logistics or any person in control of Logistics may not “[h]ave any interest, direct or indirect, in the ownership or operation of any business similar to that of [HR]’s business, within the licensed area or within 100 miles thereof, for a period of three years after expiration or termination of this Agreement....” (App. at 53-54.) The parties entered into a separate Guaranty Agreement (the “Guaranty”) by which Logistics and Black guaranteed the performance and payment of HR’s obligations arising out of the Agreement. Logistics and Black did not agree to guarantee losses incurred by HR arising out of HR’s gross negligence, intentional misconduct, or intentional material breach of the Agreement.
Although it was not permitted by the Agreement, HR, through its owner, Blaise Mazzoni, used funds collected from Logistics’ clients to cover expenses incurred by other companies related to HR and/or Mazzoni. Mazzoni thought it was his obligation to keep all accounts among the various companies positive, and, therefore, used the funds to cover various companies’ expenses rather than to pay federal payroll taxes. Mazzoni allocated expenses to the companies based upon their sales value, despite the fact that Black did not consent to the use of funds belonging to Logistics for the benefit of any company *772other than Transit Aide, a company also owned by Black.
HR consistently failed to provide financial statements to Logistics as required by the Agreement, and the business relationship between Mazzoni and Black quickly deteriorated. In October 2003, HR and Logistics entered into a Letter of Understanding in which Logistics acknowledged that it was obligated to repay loans from HR to Logistics that had been used to pay for Logistics’ operating losses. By November 2003, HR had lost its funding source, and, on December 1, 2003, Black notified Mazzoni and HR of Logistics’ intent to terminate the Agreement due to HR’s default. Thereafter, Black formed On-Site, which also engages in the temporary staffing business.
HR brought suit against Defendants raising a number of issues, including a claim that Defendants were responsible for HR’s inability to pay its tax liabilities because, as a result of their conduct, HR “has been deprived of the assets assigned to it which were earmarked to discharge [the] liabilities.” (App. at 11.) Logistics counterclaimed for fees owed to it by HR pursuant to the Agreement.
After a three-day bench trial in October 2007, the Magistrate Judge issued Findings of Fact and Conclusions of Law on March 25, 2008, 2008 WL 783558. The Magistrate Judge found that Logistics was contractually obligated to repay any loans made from HR to Logistics and Transit Aide, but not loans made by HR to other companies, and concluded that Logistics, On-Site (as Logistics’ successor), and Black (as guarantor of Logistics’ obligations) were liable to HR for loans in the amount of $865,999.36.
The Magistrate Judge also concluded that Logistics properly terminated the Agreement because HR breached it in numerous ways, but that Black breached the Agreement’s non-compete clause by establishing On-Site. Because HR failed to demonstrate damages arising from breach of the non-compete clause, however, only $1.00 in nominal damages was awarded.
The Magistrate Judge found that HR’s remaining claims — for intentional interference with contractual relations, an accounting, civil conspiracy, conversion, unfair competition, and violation of the Racketeer Influenced and Corrupt Organizations Act — failed. Finally, the Magistrate Judge found in Logistics’ favor on the counterclaim, awarding $1,603,673 in damages based on the finding that HR’s books of original entry showed a net due to Logistics of $1,603,673 on the last date for which financial statements were prepared. Logistics’ award on its counterclaim was offset by the amount owed by Defendants to HR, so that the Magistrate Judge’s final order required HR to pay $737,673.70 in damages.
HR moved for reconsideration, and Defendants moved for relief pursuant to Federal Rules of Civil Procedure 52, 59, and 60. In one order resolving all post-trial motions, dated June 3, 2008, 2008 WL 2265266, the Magistrate Judge granted Defendants’ motion in part and amended the Conclusions of Law such that Black was not personally liable for the repayment of loans made to Logistics by HR, given the plain language of the Guaranty. HR’s motion was denied in its entirety.
On appeal, HR argues that the Magistrate Judge erred when he: (1) awarded $1.6 million to Logistics on its counterclaim, (2) granted Defendants’ post-trial motion in part, (3) failed to hold Black and Logistics liable for HR’s tax obligations, (4) allowed Black and On-Site to offset damages awarded on Logistics’ counterclaim, and (5) denied HR’s request for an accounting to determine damages on its claim for breach of the non-compete clause. In their cross appeal, Defendants *773argue that the Magistrate Judge erred in concluding that they breached the non-compete clause. We have jurisdiction pursuant to 28 U.S.C. § 1291.
II.
In this appeal from a trial to the bench, we review findings of fact for clear error and conclusions of law de novo. McCutcheon v. America’s Servicing Co., 560 F.3d 143, 147 (3d Cir.2009). Factual findings are clearly erroneous if we are “left with a definite and firm conviction that a mistake has been committed,” and we must uphold factual findings “[i]f the district court’s account of the evidence is plausible in light of the record viewed in its entirety.” Giles v. Kearney, 571 F.3d 318, 322 (3d Cir.2009) (quoting Krasnov v. Dinan, 465 F.2d 1298, 1302 (3d Cir.1972) and Anderson v. Bessemer City, 470 U.S. 564, 573, 105 S.Ct. 1504, 84 L.Ed.2d 518 (1985)).
A. Counterclaim Damages
HR argues that the Magistrate Judge clearly erred when he awarded approximately $1.6 million to Logistics on its counterclaim, representing the net amount due to Logistics based on HR’s own books. HR does not appear to dispute that its books showed that it owed Logistics a net amount of $1.6 million at the conclusion of the parties’ relationship. It argues, however, that the correct amount of damages should have been $505,965, because, at various points in the litigation, Defendants made clear that they were seeking only $505,965 in damages on the counterclaim.
Defendants’ expert testified at trial that the total amount owed to Logistics was $1.6 million, but he also testified, almost immediately thereafter, that $505,965 was “the amount that would be required to restore [Logistics] to the financial position it otherwise would have been in, had there been no breach that is alleged in the counterclaim” — “the amount due to Logistics from [HR].... ” (App. at 229.) Moreover, while the $1.6 million figure is listed as “net amount due [Logistics]” in Exhibit B to the expert’s rather sparse report,1 Exhibit A to that report lists $505,965 as the “Total Net Amount Due [Logistics].” (Id. at 107-08.) Defendants also argued for $505,965 in their Proposed Findings of Fact and Conclusions of Law and post-trial brief (although, at another point in the brief, they stated that the total amount owed by HR to Logistics was $1.6 million and that any award to HR should be offset by this amount), and counsel summarized the counterclaim to the Magistrate Judge saying “my client is out a half of a million bucks.” (Id. at 279.)
HR moved for reconsideration of the $1.6 million award. The Magistrate Judge denied the motion, concluding that the Proposed Findings of Fact and Conclusions of Law were not evidence, that there was sufficient evidence to support the $1.6 million figure in the form of HR’s own records and Defendants’ expert’s unrefut-ed testimony, and that at trial Defendants’ expert qualified his calculation of $505,965, stating: “Yeah, when you take everything into account and if you accept the arguments in the counterclaim and if you find liability, that would be the amount....” (Id. at 229.) The Magistrate Judge stated that it was “unclear” what the expert thought had to be taken “into account” to arrive at the $505,965 figure or even which counterclaim the expert was referencing. (Id. at 393). What is clear, at least to us, *774is that the expert directly, albeit confusingly, undermined the $1.6 million figure and did so right on the heels of having first espoused it.
Given the contradictions noted above, the inadequate explanation by the parties and the Magistrate Judge of those contradictions, and the somewhat haphazard portions of the record presented to us on appeal, we are unable to determine that the Magistrate Judge’s award of $1.6 was clearly erroneous—or that it was not. Accordingly, we will remand this issue to the Magistrate Judge for clarification or recalculation of that award. We are confident that, following clarification or recalculation, there will be no need for further review.
B. Black as Guarantor for Logistics
HR argues that the Magistrate Judge erred in considering Black’s claim that he was not personally liable for Logistics’ obligations because Defendants raised this claim for the first time in their post-trial motions. In his order, however, the Magistrate Judge cited numerous places in the record where Defendants had claimed that the plain language of the Guaranty controlled the parties’ obligations as guarantors, and HR does not challenge these citations. Moreover, the plain language of the Guaranty makes clear that Black agreed to guarantee certain obligations of HR pursuant to the Agreement, not the obligations of Logistics. Therefore, we agree with the Magistrate Judge that the evidence supports the conclusion that Black was not personally hable for the debts of Logistics to HR.
C. Liability for Outstanding Tax Liabilities
HR argues that, according to the Magistrate Judge’s interpretation of the Guaranty, Black and Logistics are responsible for paying HR’s liability to the IRS and other obligations because Black and Logistics had guaranteed those obligations. HR does not, however, challenge the findings of the Magistrate Judge that Mazzoni and HR intentionally breached the Agreement in several ways, including by intentionally failing to pay federal payroll taxes. The Guaranty provides that Black and Logistics “shall not be responsible for any loss incurred by [HR] arising out of [HR’s] own gross negligence, or intentional misconduct or intentional material breach in its performance of the Licensing Agreement.” (App. at 76.) Because HR fails to challenge any of the findings of intentional breach, its argument that the Magistrate Judge’s interpretation of the Guaranty necessitates a finding that Defendants guaranteed HR’s tax obligations fails.
D. Offset of Damages
HR argues that, because the counterclaim was brought only on behalf of Logistics, Black and On-Site should not be able to use the $1,603,673 awarded on the counterclaim to offset their joint and several liability for the $865,999.36 that the Magistrate Judge found Defendants owed to HR. Because, as discussed above, Black is not personally liable for repayment of HR’s loans to Logistics, Black has no personal liability for the $865,999.36 owed by Logistics. As for On-Site, the Magistrate Judge concluded that it was a successor corporation to Logistics and was therefore liable to HR for the amounts that Logistics owed to HR. Because Logistics owed nothing after offset, On-Site owes nothing.
E. Request for an Accounting
HR argues that the Magistrate Judge should have ordered an accounting to establish HR’s damages on its claim for breach of the non-compete clause because its failure to present evidence of damages was a direct result of Defendants’ wrongful *775refusal to produce relevant documents. Black admitted at trial that he received a request for records relating to On-Site’s sales activity from HR’s counsel, but that he did not comply.
Addressing HR’s argument on reconsideration, the Magistrate Judge correctly refused to order an accounting both because HR never requested one as to the relevant count of the complaint and because HR had an adequate remedy at law, i.e., a claim for damages, see Rock v. Pyle, 720 A.2d 137, 142 (Pa.Super.Ct.1998). The Magistrate Judge recognized that Defendants failed to produce relevant financial documents, but noted that the documents were originally requested on January 31, 2006 and that, after that date, HR did nothing further to obtain them until the time of trial almost two years later.
In Pennsylvania2, the burden is on the plaintiff to prove damages. Omicron Sys., Inc. v. Weiner, 860 A.2d 554, 564 (Pa.Super.Ct.2004). Unlike in some contracts, in this Agreement there is no damage provision for breach of the non-compete clause, compare id. at 565, and, therefore, the measure of damages is lost profits, proved to a “reasonable certainty.” Scobell, Inc. v. Schade, 455 Pa.Super. 414, 688 A.2d 715, 719 (1997). It is clear that an award of damages “cannot be based upon mere guess or speculation.” Id. In cases where a defendant’s wrongful conduct renders an exact calculation of damages difficult, however, courts will not permit a defendant to profit from its misconduct by allowing the defendant to avoid damages based on the plaintiffs failure to provide precise evidence of damages. In Judge Technical Services, Inc. v. Clancy, 813 A.2d 879, 886-87 (Pa.Super.Ct.2002), the court upheld the trial court’s “just and reasonable estimate” of damages in a case where defendants intentionally and repeatedly ignored numerous discovery orders and then argued that plaintiffs failed to prove damages.
Here, unlike in Clancy, Defendants have not disobeyed repeated discovery orders and there is no evidence from which there could be a reasonable estimate of damages for breach of the non-compete clause. In addition, the Magistrate Judge found, and HR does not dispute, that HR was out of business at the time the Agreement was terminated, prior to the existence of On-Site, because it lost its funding source, not because of competition with On-Site. The Magistrate Judge’s award of nominal damages on HR’s claim for breach of the non-compete clause was eminently appropriate.
F. Cross-Appeal: Liability for Breach of Non-Compete Clause
In their cross-appeal, Defendants argue that they were no longer bound by the non-compete clause after the Agreement’s termination, based on the general principle that a party that materially breaches a contract may not seek damages resulting from the other party’s subsequent refusal to perform its obligations. See J.W.S. Delavau, Inc. v. Eastern Am. Transport & Warehousing, Inc., 810 A.2d 672, 686 (Pa.Super.Ct.2002).
The non-compete clause specifically contemplates an ongoing obligation after the Agreement’s termination, however, and the Magistrate Judge correctly concluded that this provision continued to have effect, despite the fact that Defendants were justified in terminating the Agreement due to HR’s breach. The general principle of Pennsylvania law cited by Defendants is not applicable under these circumstances, where the parties did each (at least somewhat) successfully perform *776their obligations under the Agreement for a time prior to termination. The Magistrate Judge’s finding that HR breached the Agreement did not give Defendants license to declare the entire Agreement void and discharge their own continuing obligation under the non-compete clause. Therefore, we agree with the Magistrate Judge that Defendants breached that clause.
III.
For the reasons discussed above, we will remand the award of counterclaim damages for further consideration, and in all other respects will affirm the Order of the Magistrate Judge.
. We note that the Magistrate Judge may have made a clerical error when he used the $1,603,673 figure because Defendants' expert's report, at Exhibit B, states that the net amount due to Logistics, based on HR’s books, was $1,603,901. Neither party seeks correction of Otis error and, therefore, we need not address it.
. The Agreement provides for the application of Pennsylvania law.
|
01-04-2023
|
11-05-2022
|
https://www.courtlistener.com/api/rest/v3/opinions/8473456/
|
OPINION
BARRY, Circuit Judge.
Angel Santos (“Santos”) was convicted on two counts of heroin distribution and one count of possession with intent to distribute heroin, and sentenced to 240 months’ imprisonment. He appeals his conviction and sentence on a variety of grounds. We will affirm.
I.
Because we write solely for the parties, we presume familiarity with the facts and *777will recite only the basic underpinnings of this case.
On three occasions in October and November 2006, Santos sold heroin to an undercover police officer- — first, 96 milligrams, then 18 grams, and finally 40 grams. On the third occasion, he was arrested. On the day of the arrest, the police obtained a search warrant for his residence and found 67 additional grams of heroin.
From the outset of the federal proceedings against him, Santos raised a series of meritless challenges to the jurisdiction of the federal court. He also had been assigned a series of attorneys, and then decided that he would like to waive counsel and represent himself, albeit with stand-by counsel in the wings. Accordingly, the United States Magistrate Judge before whom Santos was appearing at the time conducted a Faretta colloquy to ensure that his waiver of counsel was knowing, voluntary, and intelligent. After asking Santos a series of questions that probed into what he wanted and what he knew with respect to self-representation, the Magistrate Judge concluded that Santos’s waiver of counsel was knowing, voluntary, and intelligent. Before the start of trial, the District Court conducted another Far-etta colloquy, and also concluded that Santos’s waiver was valid. Following trial, Santos was convicted on all counts, and sentenced to 240 months’ imprisonment.
The District Court had jurisdiction pursuant to 18 U.S.C. § 3231, and we have jurisdiction pursuant to 28 U.S.C. § 1291 and 18 U.S.C. § 3742.
II.
On appeal, Santos argues, among other things, that his waiver of the right to counsel was not knowing, voluntary, and intelligent, and that his sentence was procedurally unreasonable.1
A.
Before a criminal defendant can be permitted to proceed pro se, a court must make certain that he is knowingly, voluntarily, and intelligently waiving his Sixth Amendment right to counsel. See, e.g., Faretta v. California, 422 U.S. 806, 835, 95 S.Ct. 2525, 45 L.Ed.2d 562 (1975). Because of the singular import of the right to counsel, we have instructed that “[cjourts must indulge every reasonable presumption against a waiver of counsel.” Buhl v. Cooksey, 233 F.3d 783, 790 (3d Cir.2000). Accordingly, such a waiver “ought not [be] accept[ed] ... absent a penetrating and comprehensive examination of all the circumstances.” United States v. Stubbs, 281 F.3d 109, 118-19 (3d Cir.2002) (internal citations and quotations omitted). It is clear that “the defendant [must] be informed of all risks and consequences associated with his decision for self-representation.” United States v. Peppers, 302 F.3d 120, 135 (3d Cir.2002) (emphasis in original). “Our review of whether a defendant’s waiver of counsel was knowing and intelligent is plenary as it involves only legal issues.” Stubbs, 281 F.3d at 113 n. 2.
In Peppers, we set forth a series of questions, some with subparts, that provides a “useful framework for the court to assure itself that a defendant’s decision to proceed pro se is knowing and voluntary.” 302 F.3d at 136. In United States v. Jones, we observed that “[although no scripted recital is required for this inquiry, we do require that all of the subjects covered in the model questions set forth in *778Peppers be fully explored in the inquiry, to the extent those subjects are relevant.” 452 F.3d 223, 234 (3d Cir.2006).
Each and every Peppers/Jones subject was covered almost word for word in the colloquy conducted by the Magistrate Judge at the time Santos elected to proceed pro se; indeed, at oral argument before us his counsel described that colloquy as “perfect.” The District Court conducted yet another colloquy on the day trial was to commence after confirming that Santos wanted to proceed pro se, a colloquy in which the Court went into all but two of the Peppers subjects and went beyond Peppers when it questioned Santos about the Sentencing Guidelines. Santos has not explained why, in his view, the District Court was obligated to conduct an additional complete colloquy when it had already been determined that his waiver of the right to counsel was knowing, voluntary, and intelligent.2 Moreover, Santos never wavered in his desire to represent himself at any point prior to or during sentencing, nor was there any change in circumstances between the end of his trial in January, 2008 and his sentencing hearing in July, 2008. Absent a revocation of his waiver or some other change in circumstances before sentencing, the District Court had no reason, let alone an obligation, to revisit the waiver question and conduct another Faretta colloquy. Cf United States v. Modena, 302 F.3d 626, 630-31 (6th Cir.2002).
The record reflects the sort of full and penetrating examination that we require pursuant to Peppers and Jones.3 Santos made the decision to waive counsel; we need not revisit that decision simply because he is displeased with the jury’s verdict.
B.
Santos also contends that the District Court erred in not sufficiently discussing the 18 U.S.C. § 3553(a) factors before imposing sentence.4 There is no merit to this contention. In light of the arguments raised, the facts presented in the presen-tence report, and the circumstances surrounding Santos and the crimes of which he was convicted, the Court’s discussion of the § 3553(a) factors, albeit brief, was entirely adequate. There is also no merit to the contention that Santos should not have been sentenced because he represented himself at the trial. (See Appellant’s Br. 29.) This argument is simply a different version of the Faretta claim rejected above.
III.
For the foregoing reasons, we will affirm the judgment of conviction and sentence.
. Santos also raises the following arguments, which we have reviewed and dismiss summarily as devoid of merit: (1) the District Court made an improper drug quantity calculation at sentencing; (2) the Court erroneously concluded that he was a career offender; and (3) the Court wrongly denied his motion to suppress.
. Indeed, Santos recognized that there had already been just such a colloquy. (See JA 113 (“Mr. Santos: Your Honor, I believe I did my colloquy back in October 19th."); id. at 115a ("Mr. Santos: Your Honor, I believe I’ve already taken my colloquy back on October 9th. I don’t know if another one is needed by law.”).)
. Santos's appellate counsel expends much time and energy pointing out Santos's deficiencies in representing himself at trial. But the issue here is not whether, after the fact, Santos turned out to be a good representative for himself. To the contrary, the issue is whether he validly waived the right to counsel. Accordingly, we will not discuss Santos's trial strategy or any deficiencies in his performance.
.Santos erroneously characterizes this alleged error as a problem of substantive reasonableness rather than procedural reasonableness: "Assuming, arguendo, that there was no procedural error [in sentencing a defendant who should not have represented himself], the sentence was not substantively reasonable because the court failed to follow the required sentencing analysis.” (Appellant’s Br. 29.)
|
01-04-2023
|
11-05-2022
|
https://www.courtlistener.com/api/rest/v3/opinions/8473457/
|
JORDAN, Circuit Judge,
concurring in part and dissenting in part.
While I agree with my colleagues in the Majority that Santos’s waiver of his right to counsel at both his pre-trial proceedings and at trial was knowing, intelligent, and voluntary,5 I believe that the failure of the District Court to make any inquiry at all into Santos’s continued desire to represent himself at sentencing violated long-standing precedent that requires courts to affirmatively protect a defendant’s right to counsel at every critical stage of a criminal proceeding. I therefore concur in the judgment to the extent it upholds Santos’s conviction, but, since I would vacate Santos’s sentence and remand for a resentenc-ing that would include an inquiry into whether Santos continues to waive counsel, I respectfully dissent as to the portion of the judgment upholding the sentence.
More than sixty years ago, in Von Moltke v. Gillies, 332 U.S. 708, 68 S.Ct. 316, 92 L.Ed. 309 (1948), the Supreme Court instructed that it is “the solemn duty of a federal judge before whom a defendant appears without counsel to make a thorough inquiry and to take all steps necessary to insure the fullest protection of this constitutional right [to counsel] at every stage of the proceedings.” Id. at 722, 68 S.Ct. 316 (Black, J., plurality opinion; emphasis added). One might read the italicized portion of that quotation, as the Majority here evidently does, to mean that a judge’s duty is to be assured at least once that the defendant’s right to counsel has been dealt with so thoroughly as to give protection to that right throughout the entirety of the proceedings. Alternatively, one may understand the admonition to be that “at every stage” the judge must take steps to ensure that the right to counsel continues to be protected. That is how I understand it, particularly in light of our own decisions that have elaborated on and emphasized that language from Von Molt-ke.
For example, in United States v. Salemo, 61 F.3d 214 (3d Cir.1995), we vacated a sentence and remanded for re-sentencing when the District Court failed to conduct at sentencing a waiver colloquy as required by Faretta v. California, 422 U.S. 806, 835, 95 S.Ct. 2525, 45 L.Ed.2d 562 (1975) (“[The defendant] should be made aware of the dangers and disadvantages of self-representation, so that the record will establish that ‘he knows what he is doing and his choice is made with eyes open.’ ”) (citation omitted). The defendant, Salerno, had been represented by counsel at trial, unlike Santos in the present case. But, just as in this case, the government in *780Salerno argued that no inquiry about waiver was needed at the sentencing stage because the district court could infer that “Salerno understood the nature of the sentencing proceeding and the possible consequences” and that “he wanted to represent himself at sentencing.” Salemo, 61 F.3d at 218. We rejected that argument, quoting the afore-cited language from Von Moltke and emphasizing the “at every stage” portion of the quote. Id. at 219. We then observed that “[n]either logic nor precedent supports carving out an exception when the waiver occurs at sentencing.” Id. at 219.
Significantly for the present case, we noted that “the inquiry at sentencing need only be tailored to that proceeding and the consequences that may flow from it” and so “need not be as exhaustive and searching as a similar inquiry before the conclusion of trial.” Id. Nevertheless, we stressed that “sentencing is a critical and often times complicated part of the criminal process that contains subtleties which may be beyond the appreciation of the average layperson seeking to represent him/herself.” Id. at 220. And we indicated that some inquiry into waiver of counsel is particularly important at sentencing because it may be that “one’s ultimate fate is determined more by the application of the Guidelines than the determination of innocence or guilt.”6 Id.
The district court in Salemo did not conduct a “thorough,” id. at 219, and “proper,” id. at 218, inquiry about the defendant’s waiver of counsel at sentencing, and we were thus required to vacate and remand for resentencing. In the present case, the District Court did not conduct any inquiry whatsoever into Santos’s waiver of counsel at sentencing. From the perspective of the government and the Majority, it might be said that Salemo is inapposite because there had been no previous waiver colloquy in that case while there had been two in this one. I cannot escape the impression, however, that, in highlighting the particular legal complexities presented at sentencing, and in rejecting the government’s argument about inferring waiver from the record, our opinion in Salerno stands for the proposition that some inquiry into waiver must be made at sentencing, even when a defendant has previously said or done something to assert his right to self-representation.
That impression is deepened by other decisions of our Court. In United States v. Peppers, 302 F.3d 120 (3d Cir.2002), we found constitutional error when the district court failed to apprise the defendant “of the full range of risks and structural limitations that would be attendant upon [the defendant] should he proceed pro se .....” Id. at 134. In United States v. Welty, 674 F.2d 185 (3d Cir.1982), while discussing the dangers of proceeding pro *781se, we noted that after the jury handed down a verdict following a trial in which the defendant had been without counsel, the defendant, “realizing the need for the assistance of counsel at sentencing,” engaged counsel for the sentencing proceeding. Id. at 191-92. Cf. Johnson v. Zerbst, 304 U.S. 458, 465, 58 S.Ct. 1019, 82 L.Ed. 1461 (1938) (“While an accused may waive the right to counsel, whether there is a proper waiver should be clearly determined by the trial court, and it would be fitting and appropriate for that determination to appear upon the record.”).
The Majority says that “Santos has not explained why, in his view, the District Court was obligated to conduct a complete colloquy when it had already determined that his waiver of the right to counsel was knowing, voluntary and intelligent.” (Maj. Op. at IIA). That comment, however, implies that it was Santos’s burden to once again raise the question of his right to counsel, when the law places the burden on the District Court to affirmatively “take all steps necessary to insure the fullest protection of this constitutional right....” Von Moltke, 332 U.S. at 722, 68 S.Ct. 316. I do not think it was incumbent on the District Court to conduct at sentencing another complete colloquy of the sort suggested in Peppers. See Salemo, 61 F.3d at 219 (“the inquiry at sentencing need only be tailored to that proceeding and the consequences that may flow from it”). And I repeat our oft-stated assurance that there is “no talismanic formula for the district court’s inquiry.” Jones, 452 F.3d at 229 (internal quotation marks, brackets, and citation omitted). As Santos himself intuited (see supra n. 1), a re-run of the same colloquy at every stage is not a necessity. Nonetheless, since the trial had concluded and some six months had passed since the District Court engaged in any inquiry into the defendant’s waiver of counsel, the Court should have made a “sufficiently penetrating inquiry to satisfy itself’ at sentencing, which is a distinct and critical stage of criminal proceedings, that Santos’s waiver was knowing, intelligent and voluntary. See Peppers, 302 F.3d at 130-31 (“It is the tension between the right to have counsel and the right to represent oneself that places upon the trial court the weighty responsibility of conducting a sufficiently penetrating inquiry to satisfy itself that the defendant’s waiver of counsel is knowing and understanding as well as voluntary.”); see also Gardner v. Florida, 430 U.S. 349, 358, 97 S.Ct. 1197, 51 L.Ed.2d 393 (1977) (“[I]t is now clear that the sentencing process, as well as the trial itself, must satisfy the requirements of the Due Process Clause.... [Sentencing is a critical stage of the criminal proceeding at which [the defendant] is entitled to the effective assistance of counsel.”)
In short, I do not believe that Von Molt-ke or our own case law permits a “once and done” — or even, as in this case, a “twice and done” — approach to the inquiry into a defendant’s desire to proceed pro se. The job is only done when the record reflects sufficient care by the district court to safeguard the right to counsel “at every stage of the proceedings.” Von Moltke, 332 U.S. at 722, 68 S.Ct. 316. While there may be legitimate debate about exactly what constitutes a separate stage of a criminal proceeding and what constitutes an adequate inquiry at each stage, I think at least this much is clear: sentencing is a discreet stage, and a district judge must do something at sentencing to be satisfied that a defendant’s waiver of counsel remains knowing, intelligent, and voluntary.
Consequently, to the extent noted, I dissent and would vacate and remand for resentencing.
. In light of our decision in United States v. Jones, 452 F.3d 223 (3d Cir.2006), the adequacy of the District Court’s inquiry regarding Santos’s waiver of counsel at trial is open to question, but ultimately the exchange between the Court and Santos appears to have been sufficient. In Jones, we emphasized that if a district court does not engage a defendant in a colloquy that covers the issues developed in Faretta v. California, 422 U.S. 806, 95 S.Ct. 2525, 45 L.Ed.2d 562 (1975), and later in United States v. Peppers, 302 F.3d 120 (3d Cir.2002), "it fails to establish that the waiver is knowing, intelligent and voluntary" and can thus require a reversal of the judgment. Id. at 231 (citation omitted). Here, however, the colloquy at trial came not long after a full colloquy before the magistrate judge during a probable cause and detention hearing. (JA 70-82; JA 115(a) — 115(d)). Moreover, the defendant twice indicated under questioning by the District Judge that he had been through the colloquy once before. (See JA at 113 ("Mr. Santos: Your Honor, I believe I did my colloquy back in [sic] October 19th.”); id. at 115a ("Mr. Santos: Your Honor, I believe I’ve already taken my colloquy back on October 9th. I don't know if another one is needed by law.”).) The present case is thus distinguishable from Jones, where there had not been a discussion of waiver with a magistrate judge shortly before the defendant's trial. See Jones, 452 F.3d at 226-27.
. That observation was delivered before the decision in United States v. Booker, 543 U.S. 220, 125 S.Ct. 738, 160 L.Ed.2d 621 (2005), made the Sentencing Guidelines advisory rather than mandatory. Yet even in a post-Booker world it remains true that the Guidelines are the starting point in the exercise of judicial discretion, United States v. Ali, 508 F.3d 136, 142 (3d Cir.2007) (noting that the first step for district courts in sentencing after Booker is “to calculate a defendant's Guidelines sentence precisely as they would have before Booker"), and that “[t]he Sentencing Guidelines contain a complex procedure for determining the appropriate increase in offense level for conviction of multiple counts." Salemo, 61 F.3d at 220 (citing United States v. Johnson, 931 F.2d 238, 242 (3d Cir.1991)) (internal bracket omitted). See also United States v. Smith, 997 F.2d 396, 398 (8th Cir.1993) (Gibson, J., concurring) ("The guidelines ... have created a complex hypertechnical system consuming great amounts of judicial time for both trial and appellate judges.”).
|
01-04-2023
|
11-05-2022
|
https://www.courtlistener.com/api/rest/v3/opinions/8473462/
|
OPINION
GARTH, Circuit Judge:
David B. Chontos, Esq., counsel for defendant Ray Kelly in this case, submitted a motion to withdraw as counsel and accompanying brief pursuant to Anders v. California, 386 U.S. 738, 87 S.Ct. 1396, 18 L.Ed.2d 493 (1967) and Local Appellate Rule 109.2(a) because there are no non-frivolous issues on appeal. Upon careful review of the brief and the record, we will grant the motion and affirm the District Court’s judgment and sentence.
*784I.
In 2005, Kelly began serving a 70-month federal prison sentence imposed following a conviction on narcotics charges. While incarcerated, Kelly continued to arrange the distribution of large quantities of cocaine. This was accomplished largely through a series of telephone calls from prison to his wife and two partners in the narcotics business. Law enforcement officers monitored those calls, and connected them with the June 15, 2006 seizure of $250,000 in cash from a mail facility in North Huntingdon, Pennsylvania. Police later determined that the money had been sent from one of Kelly’s co-conspirators to the other as payment for approximately fifteen kilograms of cocaine. In subsequent telephone calls, Kelly discussed the seizure of the money and the continuing viability of the enterprise. App. 38^2.
Kelly was indicted in June 2007, and pled guilty to conspiring to distribute, and to possess with intent to distribute, at least five kilograms of cocaine. See 21 U.S.C. § 841(a)(1), 846. The District Court sentenced Kelly to 240 months of imprisonment, the minimum term of imprisonment allowed by statute in light of Kelly’s prior felony drug conviction.1 See 21 U.S.C. § 841(b)(1)(A). Kelly appealed, and his counsel filed a motion to withdraw and accompanying Anders brief. Kelly filed an informal pro se reply brief.2
II.
Our task in ruling on a motion to withdraw pursuant to Anders is twofold.3 We ask (1) whether counsel adequately fulfilled the requirements of 3d Cir. L.A.R. 109.2; and (2) whether an independent review of the record reveals any non-frivolous issues meriting consideration. United States v. Coleman, 575 F.3d 316, 319 (3d Cir.2009). To satisfy Local Rule 109.2, counsel must (1) “satisfy the court that [he] has thoroughly examined the record in search of appealable issues” and (2) “explain why the issues are frivolous. Counsel need not raise and reject every possible claim. However, at a minimum, he or she must meet the ‘conscientious examination’ standard set forth in Anders.” United States v. Youla, 241 F.3d 296, 300 (3d Cir.2001). If the Anders brief appears adequate, the court need not itself engage in a “complete scouring of the record,” but may be “guided in reviewing the record by the Anders brief itself.” Id. at 301 (quoting United States v. Wagner, 103 F.3d 551, 553 (7th Cir.1996)).
III.
Counsel’s thorough brief meets the requirements of Anders, Coleman, and Local *785Rule 109.2. The brief correctly observes that because Kelly pled guilty, he is limited to arguing three issues on appeal: (1) the jurisdiction of the court below; (2) the constitutional and statutory validity of the plea; and (3) the legality of his sentence. See United States v. Broce, 488 U.S. 563, 569, 109 S.Ct. 757, 102 L.Ed.2d 927 (1989). Kelly pled guilty to a violation of the federal narcotics conspiracy statute, 21 U.S.C. § 846. The District Court plainly had jurisdiction over that offense under 18 U.S.C. § 3231. Thus there are no non-frivolous jurisdictional issues to be argued.
Counsel’s brief notes several deficiencies in the colloquy conducted by the District Court before Kelly changed his plea to guilty. The requirements of the colloquy are set forth in Fed.R.Crim.P. 11(b), and are intended to ensure that the defendant’s decision to plead guilty is made voluntarily, knowingly, and intelligently. See United States v. Tidwell, 521 F.3d 236, 251-52 (3d Cir.2008). Although the District Court’s colloquy covered many of the items provided in the Rule, it failed to address several required topics. In particular, the District Court failed to explicitly inform Kelly that he had a right to maintain his plea of not guilty; to inform Kelly that he had a right to be protected against compelled self-incrimination and to present evidence on his own behalf; and to discuss the impact of Kelly’s guilty plea on the forfeiture allegations contained in the indictment.
Because Kelly did not object to the adequacy of the colloquy in the District Court, we review only for plain error. United States v. Vonn, 535 U.S. 55, 59, 122 S.Ct. 1043, 152 L.Ed.2d 90 (2002); United States v. Corso, 549 F.3d 921, 926-27 (3d Cir.2008). “Plain error requires that there must be (1) error, (2) that is plain or obvious, and (3) that affects a defendant’s substantial rights. If all three conditions are met, an appellate court may then exercise its discretion to notice a forfeited error, but only if (4) the error seriously affects the fairness, integrity, or public reputation of judicial proceedings.” United States v. Goodson, 544 F.3d 529, 539 (3d Cir.2008) (quoting Johnson v. United States, 520 U.S. 461, 467, 117 S.Ct. 1544, 137 L.Ed.2d 718 (1997)) (alterations and internal citations omitted). The defendant bears the burden of persuading us that any error affected his substantial rights. United States v. Adams, 252 F.3d 276, 281 (3d Cir.2001). In the context of allegedly plain error under Rule 11, Kelly is required to “show a reasonable probability that, but for the error, he would not have entered the [guilty] plea.” United States v. Dominguez Benitez, 542 U.S. 74, 83, 124 S.Ct. 2333, 159 L.Ed.2d 157 (2004).
The District Court did not explicitly inform Kelly that he had a right to persist in his guilty plea, as required by Fed.R.Crim.P. 11(b)(1)(B). But Kelly’s right to plead not guilty was implicit in at least one other question posed by the District Court. The Court asked Kelly: “Do you understand that if you continue to plead not guilty and you don’t change your plea, you have a right to be assisted by an attorney at the trial of these charges?” Kelly answered, ‘Tes.” App. 26. Although the District Court would have been well advised to make Kelly’s right to plead not guilty the focus of a separate inquiry, we find it extremely unlikely that doing so would have caused Kelly to rethink his decision to plead guilty. Kelly has not pointed to anything in the record suggesting either that he did not know he had the right to maintain his plea of not guilty, or that he would have exercised that right had the District Court specifically mentioned it during the plea colloquy.
The District Court also failed to inform Kelly of his right against self-incrimination, and of his right to present *786evidence at trial. See Fed.R.Crim.P. 11(b)(1)(E). While these lapses are clearly inconsistent with Rule 11, Kelly is again unable to show that his substantial rights were affected by them — i.e., that there is a reasonable probability that he would not have entered a guilty plea had the District Court fully complied with Rule 11. See United States v. Griffin, 521 F.3d 727, 730 (7th Cir.2008) (holding failure of District Court to inform defendant of right to present evidence was not plain error); cf. United States v. Stead, 746 F.2d 355, 357 (6th Cir.1984) (holding trial court’s failure to inform defendant of right against self-incrimination constituted harmless error under Fed.R.Crim.P. 11(h)).
Finally, the District Court did not discuss the forfeiture allegations against Kelly contained in the indictment, as required by Rule 11(b)(1)(J). Once again, although the colloquy fell short of the Rule’s requirements, there is no reason to suppose Kelly would not have pled guilty but for this omission. Other Courts of Appeals have similarly found that a District Court’s failure to discuss forfeiture allegations during a plea colloquy does not rise to the level of plain error. See United States v. Viveros, 298 Fed.Appx. 817, 819-20 (11th Cir.2008); United States v. Williamson, 219 Fed.Appx. 332, 333 (4th Cir.2007).
“The better practice unquestionably is to comply literally and completely with every requirement of Rule 11.” United States v. de le Puente, 755 F.2d 313, 315 (3d Cir.1985). The District Court did not do that here. Nevertheless, counsel correctly concludes that Kelly is unable to demonstrate that his substantial rights have been affected by the plea colloquy’s various shortcomings, or even by their possible cumulative effect. Nothing in the record suggests that Kelly might not have entered a guilty plea had the colloquy’s errors been corrected. There is thus no plain error, and there are no arguably meritorious grounds upon which Kelly might challenge the validity of his guilty plea.
Finally, no non-frivolous arguments are available to Kelly in challenging his sentence. The District Court sentenced Kelly to 240 months’ imprisonment, the minimum term permitted by statute given the amount of narcotics involved in the charge to which Kelly pled guilty, and Kelly’s prior felony drug conviction. See 21 U.S.C. § 841(b)(1)(A); United States v. Williams, 510 F.3d 416, 418 n. 1 (3d Cir.2007). The District Court had no discretion to impose a lesser sentence. The record reveals no arguably meritorious challenges to Kelly’s sentence.
IV.
For the foregoing reasons, we will grant counsel’s motion to withdraw and affirm the District Court’s judgment and sentence of April 17, 2008. We further hold that “the issues presented in the appeal lack legal merit for purposes of counsel filing a petition for writ of certiorari in the Supreme Court.” 3d Cir. L.A.R. 109.2(b).
. Kelly's sentence also included ten years of supervised release and a $100 special assessment.
. Just before the disposition date of this appeal, Kelly filed a motion to submit a pro se reply brief out of time. We granted the motion and accepted the pro se brief for filing. After consideration of the arguments made in Kelly’s brief, we find them to be without merit.
Kelly’s double jeopardy claim is barred by his guilty plea. United States v. Broce, 488 U.S. 563, 571, 109 S.Ct. 757, 102 L.Ed.2d 927 (1989). To the extent that he argues his plea was the result of ineffective assistance of counsel, the claim must be presented in a motion under 28 U.S.C. § 2255 rather than on direct appeal. United States v. Morena, 547 F.3d 191, 198 (3d Cir.2008).
Kelly's arguments regarding his sentence are baseless. A twenty-year mandatory minimum sentence applied to Kelly because the amount of cocaine involved in the offense exceeded five kilograms, and Kelly had a prior felony drug conviction. 21 U.S.C. § 841(b)(1)(A).
. We have jurisdiction over the appeal under 28 U.S.C. § 1291 and 18 U.S.C. § 3742(a). The District Court had jurisdiction under 18 U.S.C. § 3231.
|
01-04-2023
|
11-05-2022
|
https://www.courtlistener.com/api/rest/v3/opinions/8473464/
|
OPINION
GARTH, Circuit Judge:
Appellant UPMC St. Margaret Hospital (“UPMC”) appeals from the order of the United States District Court for the Western District of Pennsylvania granting summary judgment in favor of appellee Kathleen Sebelius, Secretary of the United States Department of Health and Human Services (“Secretary”). For the reasons stated below, we will affirm.
I. Factual and Procedural Background
St. Margaret Memorial Hospital was a Pennsylvania nonprofit corporation that *788operated an inpatient hospital. Memorial entered into a statutory merger agreement with UPMC St. Margaret Hospital (“UPMC”).
On March 1, 1997, Memorial merged into UPMC. Pursuant to the merger agreement, UPMC assumed all rights, obligations and liabilities of Memorial. App. at 254. At the time of the merger, Memorial had monetary assets totaling $87 million,1 and liabilities in the amount of $71.6 million. App. at 319. Thus, UPMC received $87 million in monetary assets in exchange for “consideration” of $71.6 million, resulting in a “profit” of approximately $15 million. In addition to acquiring Memorial’s monetary assets, UPMC also acquired Memorial’s depreciable assets, including its land, buildings, and equipment, whose total value was appraised at $36.9 million. Id.
Following the merger, UPMC, acting as Memorial’s successor, submitted a fiscal-year-end claim to Medicare for merger-related reimbursement of losses related to depreciable medical equipment. On September 22, 1999, Veritus Medicare Services, Medicare’s fiscal intermediary (“Intermediary”), issued a Notice of Program Reimbursement that disallowed the claimed losses of just over $13 million. App. at 234-45.
UPMC subsequently appealed the Intermediary’s denial of its claim to the Provider Reimbursement Review Board (“PRRB”). In a decision dated May 26, 2006, the PRRB reversed the Intermediary’s decision and ruled that UPMC’s claim should be allowed. App. at 136-44.
That decision was appealed to the Administrator of the Center for Medicare and Medicaid Services, who reversed the PRRB and once again denied UPMC’s claim, basing his decision on findings that the sale was not bona fide and the parties were related due to Memorial’s significant control over UPMC following the merger. App. at 10-31. The Secretary declined to exercise review over the Administrator’s ruling, thus rendering it a “final decision” pursuant to 42 U.S.C. § 1395oo(f)(l).
UPMC thereafter sought judicial review of the Secretary’s decision in the District Court for the Western District of Pennsylvania. On July 27, 2007, a United States Magistrate Judge issued a report recommending that UPMC’s motion for summary judgment be denied. On September 4, 2007, the District Court issued an order adopting the report and denying UPMC’s motion.
On September 17, 2007, the Secretary moved for summary judgment based upon the legal rulings made in the report and adopted by the District Court. On November 5, 2007, the Magistrate Judge issued a second report recommending that the Secretary’s motion for summary judgment be granted. On December 12, 2007, 2007 WL 4389842, the District Court entered an order granting the Secretary’s motion for summary judgment in favor of the Secretary and against UPMC. UPMC timely appealed.
II. Jurisdiction and Standard of Review
The District Court had jurisdiction pursuant to 42 U.S.C. § 1395oo(f)(l). We have appellate jurisdiction pursuant to 28 U.S.C. § 1291.
Our review of agency action is governed by the Administrative Procedures Act, 5 *789U.S.C. § 701, et seq. (“APA”). We may only set aside agency actions, findings, and conclusions that are “arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law” or “unsupported by substantial evidence.” APA § 706(2)(A), (E). “Substantial evidence is ‘more than a mere scintilla. It means such relevant evidence as a reasonable mind might accept as adequate to support a conclusion.’ ” Mercy Home Health v. Leavitt, 436 F.3d 370, 380 (3d Cir.2006) (quoting Richardson v. Perales, 402 U.S. 389, 401, 91 S.Ct. 1420, 28 L.Ed.2d 842 (1971)). Under the “substantial evidence” standard, the agency’s factual findings “must be upheld unless the evidence not only supports a contrary conclusion, but compels it.” Abdille v. Ashcroft, 242 F.3d 477, 484 (3d Cir.2001).
III. Statutory and Regulatory Framework
Under the Medicare Act, 42 U.S.C. § 1395 et seq., Medicare service providers such as Memorial are entitled to be reimbursed for the reasonable cost of the services they provide under the Medicare program. 42 U.S.C. § 1395f(b)(1). The Act grants power to the Secretary to promulgate regulations establishing the proper methods for calculating such costs. Id. § 1395x(v)(1)(A).
One such regulation states that a provider such as Memorial may claim reimbursement for depreciation on its buildings and equipment to the extent that they are used in the provision of care to Medicare patients. 42 C.F.R. § 413.134(a). In general, reimbursement is calculated by prorating the original cost of the asset over the asset’s “estimated useful life,” and then estimating a percentage of that amount attributable to Medicare services. Id. § 413.134(a)(3). However, where, as in the instant case, assets are sold in the course of a statutory merger, § 413.134(k) provides that the estimated amount is subject to a loss or gain adjustment depending on the value of the depreciable assets as determined by the amount for which they were “sold.” An adjustment is available only if the merger (1) qualifies as a bona fide sale, and (2) was between “unrelated parties” as defined by 42 C.F.R. § 413.17. Albert Einstein Med. Ctr. v. Sebelius, 566 F.3d 368, 376-78 (3d Cir.2009).
IV. Discussion
In the instant case, the Secretary denied UPMC’s claim for reimbursement because, inter alia, she found that merger did not qualify as a bona fide sale.2 App. at 31. The Secretary based her ruling primarily on the fact that “[e]ven if the value of the depreciable assets are not considered, UPMC[’s] assumption of [Memorial’s] debt ... was $15 million less than [Memorials current and monetary assets alone,” id. (emphasis added), and thus, “[t]his purchase price cannot be considered reasonable consideration and, thus, the transaction did not constitute a bona fide sale.”3 Id.
*790UPMC argues that the Secretary inappropriately utilized the “book value” of Memorial’s depreciable assets when assessing the disparity in consideration, and instead should have looked to the fair market value of the assets in question. Br. of Appellant at 58. However, as the Secretary notes, Br. of Appellee at 29, regardless of how the $86.9 million (book-valued) depre-ciable assets would be valued in the fair market, it is certain that their worth would far exceed the amount that UPMC paid for them.4
Moreover, we need not even reach the issue of the true value of Memorial’s de-preciable assets. The $15 million disparity between the purchase price and the acquired monetary assets is an undisputed fact that is clearly stated in the record, see App. 319-21, and that alone constitutes substantial evidence to support the Secretary’s determination that the merger was not a bona fide sale. See Einstein, 566 F.3d at 378-79 (holding that a material disparity between the purchase price and the acquired monetary assets constitutes substantial evidence that a merger was not a bona fide sale); Robert F. Kennedy Med. Ctr., 526 F.3d 557, 563 (9th Cir.2008) (same); Via Christi Reg’l Med. Ctr. v. Leavitt, 509 F.3d 1259, 1276-77 (10th Cir.2007) (same).
Based on the foregoing, we conclude that the Secretary’s determination that the merger did not constitute a bona fide sale was based on substantial evidence, and therefore that she correctly denied UPMC’s reimbursement claim. “Because this is an independent ground upon which the [Secretary] denied the claim, we need not address whether the parties were “related” within the meaning of 42 C.F.R. § 413.17, and decline to do so.” Einstein, 566 F.3d at 380.
Y. Conclusion
The District Court correctly granted summary judgment in favor of appellee Secretary and against appellant UPMC, and we will affirm its judgment.
. This amount includes $84 million in cash-based monetary assets and $3 million in "other” monetary assets. App. at 319.
. The Secretary also denied reimbursement on the independent grounds that the merger was a related party transaction. App. 29. However, we need not reach the Secretary's determination on the related party issue, because the bona fide sale issue is dispositive. See Einstein, 566 F.3d at 376 (citing Robert F. Kennedy Med. Ctr. v. Leavitt, 526 F.3d 557, 563 (9th Cir.2008)).
. The Secretary also noted additional facts supporting her determination, including: (1) the fact that Memorial failed to obtain an appraisal of its depreciable assets prior to the closing date of the merger, indicating that Memorial was "not concerned with receiving reasonable consideration for its depreciable assets;" as well as (2) the absence of any documentation as to the basis for Memorial's conclusion that the assumption of its debt was fair consideration for its (significantly more valuable) monetary assets. App. at 31.
. Since UPMC paid $71.6 million for Memorial and in return received more than that amount in monetary assets alone, UPMC effectively received Memorial's depreciable assets for free.
|
01-04-2023
|
11-05-2022
|
Subsets and Splits
No community queries yet
The top public SQL queries from the community will appear here once available.