CA2 (8.18.05)

Five today, including some good ones.  Sorry for the short squibs, but the day job calls:

1. United States v. Wu (McLaughlin, Pooler, Wesley): Very interesting facts on this decision -- an alien essentially assumed the identity of a dead U.S. citizen and then, under that assumed identity, petitioned to bring all sorts of family members over to the U.S. He was prosecuted for making false statements in an immigration document, and the CA2 affirmed his conviction, holding his misstatements to be material. Worth a read for the facts alone.

2. State of New York v. Green (Straub, Sack, Mark R. Kravitz (D. Conn.)): The CA2 affirmed a default judgment. Nothing especially interesting here.

3. Travelers Cas. & Surety Co. v. Gerling Global Reins. Corp. of Am. (Walker, Pooler, Wesley): Apparently, the "follow-the-fortunes" doctrine applied to plaintiff’s post-settlement allocation.  Who knew?

4. Gill v. INS (Oakes, Straub / Jacobs, dissenting): "Petitioner Shobinder Gill petitions for review of a Board of Immigration Appeals ("BIA") opinion finding Gill removable based on a conviction of a "crime involving moral turpitude" ("CIMT") under 8 U.S.C. § 1227(a)(2)(A)(i). Gill argues that his crime of conviction, attempted reckless assault under New York Penal Law § 120.05(4), is not a CIMT because it requires only a reckless state of mind, whereas some positive intent is required for a CIMT. Gill does not specifically argue that his conviction for attempted reckless assault does not demonstrate the requisite mental state for a CIMT because it incoherently combines the specific intent element of criminal attempt under New York law with the recklessness standard of § 120.05(4). Nonetheless, we exercise our discretion to consider this subsidiary issue sua sponte and find that the BIA committed clear error in ordering Gill’s removal based on a crime that, because it is legally impossible, demonstrates no clear mental state."

As usual, tremendous dissent from Judge Jacobs:

I conclude: that the argument decided by the majority is unexhausted; that exhaustion is required no matter how effective an argument may seem on appeal; and that Gill’s status as an honor student confers no jurisdiction (though it may confer on his unfortunate parents the right to display a bumper sticker). I therefore respectfully dissent.

5. United States v. Coreas (Jacobs, Calabresi, Jed S. Rakoff (S.D.N.Y.)): Another quite interesting case. This one raises substantially the same issues that were decided two weeks ago in United States v. Martin, where a divided panel of the CA2 held that a search warrant predicated primarily on defendant’s membership in a child pornography internet group was valid. Here, the panel would have held that the warrant was not valid, but was required to rule otherwise in light of Martin. See AL&P’s discussion of Martin here, and the Federal Defenders' unvarnished views here ("Chills ran down this reader's spine while reading the majority opinion.").