U.S. Court of Appeals for the Second Circuit Case Summaries: August

Daily Record (Rochester, NY), Aug 27, 2008

Jury Instructions

Inference of Guilt

U.S. v. Mundy

06-1190-cr

Appealed from the Western District of New York

Background: The defendant appeals his conviction by a jury for drug and firearm offenses on the grounds that Judge Siragusa erred in refusing to instruct the jury concerning the flight of a co- defendant. To support his contention that the drugs at issue were not his, Mundy requested a jury charge to the effect that co- defendant McDonald's attempt to flee from the apartment when the police entered supported an inference of his consciousness of guilt. The district court refused to give the instruction.

Ruling: The court urges the district courts, when faced with such requests for instructions and objections, to think carefully about whether any benefit from giving the charge will outweigh potential harms, including the possibility that a court may give false credence to one party's version of the facts.

Bobbi C. Sternheim for the appellant and Joseph J. Karaszewski, assistant U.S. attorney, for the appellee

Immigration

Due Process

Miller v. Mukasey

06-1680-ag

Appealed from the Bureau of Immigration and Customs Enforcement

Background: This case presents a petition for review of an order, issued by an immigration officer, reinstating a prior order of removal. The order reinstated a 1989 order of removal entered against Miller for illegal entry into the United States. Miller, a citizen of Jamaica, entered the United States in 1985 through Miami, Fla. The petitioner contends the procedure is not authorized by statute and, as applied to him, is in violation of his right to due process.

Ruling: The court holds that when an alien chooses not to avail himself of available administrative procedures to challenge reinstatement of a prior order of removal, he cannot claim those procedures failed to provide adequate process. The petitioner is barred statutorily from collaterally attacking a prior order of removal in reinstatement proceedings.

Anne E. Doebler for the petitioner and Shane Cargo, U.S. Attorney's Office, for the respondent

Restitution

Criminal-Civil Restitution

U.S. v. Amato

06-5600-cr

Appealed from the Southern District of New York

Background: The defendants appeal from judgments of the district court convicting them of mail and wire fraud and imposing, among other penalties, a $12.8 million restitution order that included attorney fees and accounting costs incurred by the corporate victim of the fraud. Three individuals, a business executive, his lawyer and an officer in the business from which the criminal activity originated, conspired to perpetrate a series of frauds against several states and a corporation that purchased the small company that employed the three individuals. Before trial, the executive died. The lawyer and the officer were convicted for the frauds, and the trial court ordered them to make restitution.

Ruling: The court affirms the judgment of the district court. Even when Amato was not a contemporaneous participant, he later engaged in cover-up activities. It was within the district court's discretion to make Amato jointly and severally liable for the entire loss EDS suffered as a result of the conspiracy, even while apportioning the liability of some of his co-conspirators.

Joshua L. Dratel for the defendant, and Marcus A. Asner, assistant U.S. attorney, for the United States