U.S. Court of Appeals for the 2nd Circuit Case Summaries: June 22,

Daily Record (Rochester, NY), Jun 22, 2009

Confrontation Clause

United States v. Jass

United States v. Leight

06-4899-cr

06-4951-cr

Appealed from the Southern District of New York

Background: These appeals are from judgments of conviction for conspiracy to transport and actual transportation of minors in interstate commerce for the purpose of engaging in and producing visual images of sexual activity, and for possession of child pornography. Jass's arguments that her Sixth Amendment right to confrontation was violated by the introduction at trial of defendant Leight's redacted confession, and her below-Guidelines sentence was infected by procedural error because the district court applied an unwarranted two-level enhancement for using a computer to solicit sexual activity with a minor in calculating her Sentencing Guidelines. The minors were Leight's daughter and her friend. Jass argues that her Sixth Amendment right to confrontation was violated by the admission at trial of an inculpatory statement by Leight in which references to Jass were redacted and replaced by neutral pronouns or references to "another person."

Ruling: The court rejects the first argument as without merit, concluding further that any error would have been harmless. As to the second argument, the court agrees that the [section]2G2.1(b)(3)(B)(ii) enhancement was unwarranted in this case. Nevertheless, this error was also harmless because the district court clearly stated that it would have imposed the same below-Guidelines sentence in any event. The judgment is affirmed.

Colleen P. Cassidy, of Federal Defenders of New York, Inc., for appellant Jass and Marcia S. Cohen, Assistant U.S. Attorney, for the appellee

Administrative Agencies

Delegation of Power -- Jurisdiction

Snell Island SNF LLC v.

National Labor Relations Board

08-3822-ag

Petition for Review; National Labor Relations Board

Background: The petitioners are two companies whose employees had recently voted to join a labor union; they seek review of an order of the National Labor Relations Board which concluded that petitioners had violated various provisions of the National Labor Relations Act by refusing to recognize and bargain with the United Food and Commercial Workers Union, Local 1625. The board had previously certified a vote by petitioners' employees in favor of union representation. Petitioners argue that, in each instance, the board acted through an unlawfully constituted panel of only two members, because the Act requires that panels of the board contain a minimum of three members, with two members necessary for a quorum. The remaining board members had attempted to solve the problem by delegating their power to a three-member panel consisting of current board members.

Ruling: The court holds that the panel in this case was a lawfully convened panel of three members, and that the panel continued to operate in accordance with the Act after one of its members ceased to serve on the board, because there remained a quorum of two members. It also holds that the decision by a regional director of the NLRB to overrule petitioners' objections to the union election without holding a hearing was not an "abuse of discretion." The petition for review is denied.

Charles P. Roberts III, of Constangy, Brooks & Smith, LLC, for the petitioners and Ruth E. Burdick, of the National Labor relations Board, for the respondent

Death Penalty

Jurors' Beliefs -- Federalism

United States v. Fell

06-2882-cr

Petition for Rehearing

Background: The appellant, facing the death penalty for several murders in Vermont and New York, and having filed a petition for panel rehearing or, in the alternative, for rehearing en banc, the members of the court now consider the request for a rehearing en banc. The appellant murdered his mother and her companion along with a kidnapped convenience store clerk who was forced to drive him and his associate across the state line into New York.

Ruling: The request for a hearing en banc is denied. Disagreement is expressed in the separate opinions as to the necessity of en banc review; one dissent argues that it is needed to address federalism concerns, among them being whether a federal district court, selecting a federal capital crime jury in a state such as Vermont that does not provide for a death penalty, must take that fact into account when deciding whether to excuse jurors who express opposition to the death penalty.

John Blume, of Cornell Law School, for the appellant and William B. Darrow, Assistant U.S. Attorney, for the appellee