Link to Case
Keywords: false arrest, improper opinion testimony, new trial
Panel: Calabresi, Cabranes, and Hall
Opinion by: Calabresi
Appeal from: SDNY (Crotty, USDJ)
Result below: Jury verdict for defendants
Result: New trial ordered due to improper opinion testimony

Coming soon.

“Two Assistant District Attorneys (“ADAs”) and a police lieutenant were allowed to give their opinions on [defendant arresting police officers’] credibility, on whether probable cause existed to arrest or charge the [plaintiffs], and on whether certain evidence strengthened or weakened [plaintiffs’] case. The admission of these statements violated bedrock principles of evidence law that prohibit witnesses (a) from vouching for other witnesses, (b) from testifying in the form of legal conclusions, and (c) from interpreting evidence that jurors can equally well analyze on their own. These errors were not harmless, not least because they allowed ostensibly neutral government agents to speak directly to the two most hotly contested issues in this case: [defendants'] credibility, and whether [defendant police officers] had probable cause for their actions. Accordingly, we vacate the jury verdict and remand for a new trial.”

Link to Case
Keywords: Injunction, FINRA, Arbitration, “serious questions”
Panel: Feinberg, Walker, and Katzmann
Opinion by:
Appeal from: SDNY (Jones, USDJ)
Result below: Prelim. Injunction against FINRA Arbitration Granted
Result: Affirmed

Coming soon.

“Because we conclude that the “serious questions” standard for assessing a movant’s likelihood of success on the merits remains valid in the wake of recent Supreme Court cases, and because neither the district court’s assessment of the facts nor its application of the law supports a finding of abuse of discretion, we AFFIRM as to both [the order granting a preliminary injunction against arbitration and denying a motion for reconsideration].”

Link to Case
Keywords: First Amendment, Adult Entertainment, Zoning
Panel: Winter, Calabresi, and Sack
Opinion by: Calabresi
Appeal from: EDNY (Feuerstein, USDJ)
Result below: Denied Motion for Injunction
Result: Vacated and remanded

Coming Soon.

“This case requires us to resolve an interesting and surprisingly unanswered question of First Amendment law: whether the constitutionality of a zoning ordinance should only be evaluated with regard to the “alternative avenues of communication” it leaves open at the time it is passed, or also those it leaves open at the time it is challenged.”

Link to Case
Keywords: 18 USC § 924(c)(1)(A), trading drugs for guns
Panel: Feinberg, Katzmann, and Castel (SDNY)
Opinion by: Katzmann
Appeal from: SDNY (Rakoff, USDJ)
Result below: Conviction and sentence
Result: Affirmed

Coming soon.

“We join our sister circuits in concluding that when a defendant acquires a firearm using drugs as payment, he possesses that firearm in furtherance of a drug trafficking crime in violation of 18 U.S.C. § 924(c)(1)(A). We therefore conclude that the district court appropriately instructed the jury that they could find that a given defendant possessed a firearm in furtherance of the drug conspiracy if the jury unanimously concluded beyond a reasonable doubt that the defendant acquired a firearm with drugs involved in the conspiracy. We also conclude that there was sufficient evidence to support Gardner and Gladden’s convictions under this statute because a rational trier of fact could have found that they acquired firearms using drugs as payment. See United States v. Aguilar, 585 F.3d 652, 656 (2d Cir. 2009).”

Link to Case
Keywords: FRAP 4(b), Rule of Finality
Panel: Miner, Cabranes, and Rakoff (SDNY)
Opinion by:
Appeal from: EDNY (Johnson, USDJ)
Result below: Denying Motions to Dismiss
Result: Appeal dismissed for lack of jurisdiction

Coming soon.

Link to Case
Keywords: RLUIPA, qualified immunity, tuberculosis hold, prisoner’s rights
Panel: Walker, Leval, and Hall
Opinion by: Walker
Appeal from: NDNY (Magnuson, USDJ)
Result below: Complaint dismissed
Result: Affirmed

Coming Soon.

Link to Case
Keywords: 10(b) and 10b-5, Securities Exchange Act, Loss Causation
Panel: Feinberg, Winter, and Cabranes
Opinion by: Winter
Appeal from: SDNY (Pauley, USDJ)
Result below: SJ Defendant
Result: Affirmed

Coming Soon.

Link to Case
Keywords: 4th Amendment, Automobile Exception, Trailer
Panel: Laval, Wesley, and Gleeson (USDJ, EDNY)
Opinion by: Wesley
Appeal from: SDNY (Pauley, USDJ)
Result below: Denied motion to suppress
Result: Reversed

Automobile Exception and Trailers

A bad decision from a good panel.

The Court holds that a trailer (which contained drugs), unhitched from its cab and parked in a warehouse with its legs dropped, is subject to search under the “automobile exception” first established in the prohibition-era case Carroll v. United States, 267 U.S. 132 (1925). Carroll upheld a car search based on the automobiles ability to be moved quickly and “put out of reach of a search warrant.” Here, the district court held that the exception did not apply because “a stationery trailer, detached from a tractor cab with its legs dropped, and stored in side a warehouse, is not a vehicle that is readily mobile or in use for transportation.” In reversing the district court, the panel rejected the district court’s suggestion that the agents “were required to halt an ongoing investigation to wait at the scene and ensure that the trailer remained secure while a search warrant was obtained,” holding that “[t]he Fourth Amendment does not necessitate such a course of action.” Slip Op. at 20. Actually, it does, and it did, until this mistaken decision expanded the automobile exception beyond its reasonable bounds.

A quick computer search indicates that there are cases going both ways on this issue (although surprisingly few on point), with state courts being generally more protective than federal. Compare United States v. Smith, 623 F.Supp.2d 693 (WD Va 2009) (unhitched trailer in open field subject to search under automobile exception even though no tractor found nearby); State v. Kypreos, 115 Wash. App. 207 (2002) (search of unhitched “fifth wheel trailer” not justified under automobile exception because the unhitched trailer is not “readily mobile”), review denied, 149 Wash.2d 1029 (2003); State v. Durbin, 170 Wis. 2d 475 (1992) (search of parked camper trailer not justified under automobile exception because an unhitched trailer is “not inherently mobile or even readily mobile”); United States v. Ervin, 907 F.2d 1534 (5th Cir. 1990) (camper trailer subject to automobile exception because it was attached to a car). If the primary rationale for the automobile exception is mobility — and the Supreme Court has made clear that it is — then it is illogical to justify search of an unhitched, immobilized trailer in a seized warehouse under the exception.

There are other factors in the case which make reasonable the desire to uphold the search, even if the ultimate rationale is an unjustified and unwise weakening of the Fourth Amendment. First, of course, the officers had probable cause to believe that the trailer contained drugs. The search would not be justified under the automobile exception without probable cause. But in the absence of exigent circumstances, police should be encouraged to obtain warrants.  Second, one of the conspirators consented to a search of the warehouse containing the cab “and anything that was in there.” It is unclear why that consent did not or could not extend to the cab itself. Third, it is true, as the panel notes, that the trailer is mobile. But it is not mobile without a cab, and the police were firmly in control of the trailer and could easily have obtained a warrant to search the trailer with a minimal amount of fuss. Finally, it is also true that interstate commercial trucking is pervasively regulated and that there is a diminished expectation of privacy in the contents of tractor trailers, such as to justify a warrantless administrative search. But as the court impliedly concedes, there is no basis for upholding the search of the trailer as a valid administrative search.

———

Here’s the district court’s analysis:

Under the automobile exception, police may conduct a warrantless search of a readily mobile motor vehicle if probable cause exists to believe the vehicle contains contraband or other evidence of a crime.” United States v. Howard, 489 F.3d 484, 492 (2d Cir.2007). “The reasons for the vehicle exception are twofold. Besides the element of mobility, less rigorous warrant requirements govern because the expectation of privacy with respect to one’s automobile is significantly less than that relating to one’s home or office.” California v. Carney, 471 U.S. 386, 391, 105 S.Ct. 2066, 85 L.Ed.2d 406 (1985) (internal citation omitted). Therefore, “[w]hen a vehicle is being used on the highways, or if it is readily capable of such use and is found stationary in a place not regularly used for residential purposes-temporary or otherwise-the two justifications for the vehicle exception come into play.” Carney, 471 U.S. at 392, 105 S.Ct. 2066. However, “[w]hether a vehicle is ‘readily mobile’ within the meaning of the automobile exception has more to do with the inherent mobility of the vehicle than with the potential for the vehicle to be moved from the jurisdiction, thereby precluding a search.” Howard, 489 F.3d at 493 (emphasis added). “Even when there is little practical likelihood that the vehicle will be driven away, the exception applies at least when that possibility exists.” Howard, 489 F.3d at 493 (emphasis added).

No case law addresses the situation presented here-a trailer unhooked from a tractor cab and stored in a warehouse. However, the automobile exception generally relates to some type of vehicle that is capable of moving on its own. The vehicle exception does not turn “on the other uses to which a vehicle might be put … [but rather] on the ready mobility of the vehicle, and on the presence of the vehicle in a setting that objectively indicates that the vehicle is being used for transportation.”Carney, 471 U.S. at 394, 105 S.Ct. 2066. A stationary trailer, detached from a tractor cab with its legs dropped, and stored inside a warehouse, is not a vehicle that is readily mobile or in use for transportation.

The relevant issue is whether there is a possibility that the vehicle could be driven away. Howard, 489 F.3d at 493-94(possibility existed where drivers were detained, but “confederates in another car, of whom the police were unaware, might have observed the police intervention and might drive the car away”). Here, Defendants were under arrest, and more than a dozen government agents surrounded the warehouse. It is hard to imagine a scenario where the tractor-trailer could have been hooked up to a cab and driven away.

Even where a vehicle is not readily mobile “a warrantless search … would be justified based on the diminished expectation of privacy enjoyed by the drivers and passengers ….” Howard, 489 F.3d at 494. However, under the circumstances described at the hearing in this case, the unhitched trailer in the warehouse does not constitute a vehicle in use for transportation. Accordingly, the Government cannot rely on the automobile exception to introduce the 230 kilograms of cocaine that it seized after drilling through the roof of the trailer.

U.S. v. Navas, 640 F.Supp.2d 256, 267 -268 (SDNY. 2009), reversed –F.3d–, 2010 WL 760131 (2d Cir. March 8, 2010).

Link to Case
Keywords: Certification, NY Tax Law §§ 471, 471(e)
Panel: Hall, Livingston, and Chin (USDJ, SDNY)
Opinion by: Hall
Appeal from: EDNY (Anon, USDJ)
Result below: Grant of Preliminary Injunction
Result: Questions Certified to NY Court of Appeals

This case involves the district court’s grant of an injunction to New York City against defendants, owners of businesses on the Poospatuck Reservation of the sovereign Unkechauge Nation, prohibiting defendants’ sale of untaxed cigarettes to “bootleggers” who resell the cigarettes in NYC and avoid the hefty state and city taxes on cigarettes. The Court certifies the following questions to the New York Court of Appeals:

(1) Does N.Y. Tax Law § 471-e, either by itself or in combination with the provisions of § 471, impose a tax on cigarettes sold on Native American reservations when some or all of those cigarettes may be sold to persons other than members of the reservation’s nation or tribe?

(2) If the answer to Question 1 is “no,” does N.Y. Tax Law § 471 alone impose a tax on cigarettes sold on Native American reservations when some or all of those cigarettes may be sold to persons other than members of the reservation’s nation or tribe?

As a preliminary matter, the court holds that the City was not required to make a showing of irreparable harm; such harm is presumed by defendant’s alleged violation of state and federal tax statutes. The city must, however, demonstrate a clear and substantial showing of a likelihood of success on the merits. Federal law prohibits the taxation of cigarette sales to tribal members on a reservation. States are permitted to impose such taxes so long as they are not “unduly burdensome.” The precise issue on appeal is the interplay between NY’s Tax Law § 471, enacted in 1939, and § 471(e), enacted in 2005, which set up a tax-exempt coupon program for cigarette sales on tribal lands.

There is a recent Appellate Division, Fourth Department decision effectively answering the certified questions, Cayuga Indian Nation of New York v. Gould, 884 NYS 2d 510 (4th Dept 2009) (the majority held that § 471(e) is the exclusive means for taxing cigarette sales and that the section is not yet in effect, therefore “there is no statutory basis for the imposition of a cigarette tax on a qualified reservation;” the dissent would hold that § 471 imposes an independent obligation to pay taxes on cigarette sales), but the decision is on appeal to the New York Court of Appeals (0ral argument is scheduled for March 25, 2010) and “there are a number of factors that may persuade the Court of Appeals in its review of Cayuga to adopt the rationale of Justice Peradotto’s dissent.” Slip Op. at 20.

Link to Decision
Keywords: Attorney Admission, Misstatements of Fact
Panel: Cabranes, Sack, and Wesley
Result: Attorney’s admission vacated

Attorney Rodkin’s application to the 2d Circuit bar failed to disclose a suspension and a prior letter of admonition that he had received from New York’s disciplinary authorities. The offense was worse than mere non-disclosure; the attorney had directly denied he had ever been suspended in any court. The attorney has also been cautioned for raising meritless or un-exhausted claims. The panel strikes the attorney from the rolls of the Second Circuit bar and directs that he arrange substitute counsel on all pending matters.