U.S. Court of Appeals for the Second Circuit Case Summaries: January 15, 2008

U.S. Court of Appeals for the Second Circuit

Immigration

Asylum — Persecution

— Changed Country

Conditions

Ogunwomoju v. United States

06-3734-pr

Appealed from the Southern District of New York

Issue: Did the district court have jurisdiction over a habeas petition or a request to review an order of removal where the reason for detainment was due to the order of removal following a state conviction?

Background: The petitioner sought review of an order of removal that was construed as a petition for habeas relief by the district court and the Second Circuit. The order of removal followed a conviction for crimes involving moral turpitude.

Ruling: The court finds, because the petitioner’s detainment does not qualify as “custody” under 28 U.S.C. [section] 2254, the courts lack jurisdiction to consider the petition. The respondent’s motion to dismiss is granted and the stay of removal is vacated.

Adeniyi Ogunwomoju, pro se, and Sue Chen, special assistant U.S. attorney, and Michael J. Garcia, U.S. attorney, for the respondent

Sentencing

Role Enhancement —

Statement of Reasons

United States v. Espinoza

05-0711-cr

Appealed from the Eastern District of New York

Issue: Does the district court’s failure to state in open court its rationale for the sentence constitute error where the defendant’s receipt of the statement of reasons was delayed, but the defendant was on notice that the sentence was based on the presentence investigation?

Background: The defendant was sentenced to 30 years in prison for possession of and intent to distribute cocaine. He argues on appeal that the trial court failed to state it was applying a four-level role enhancement to his sentence and its reasons for so doing. This purportedly prejudiced the defendant since the findings were not received by the defendant until submission of the government’s response brief on appeal.

Ruling: The court finds there was no prejudice to the defendant as a result of the delayed receipt of the statement of reasons because it simply incorporated the findings of the sentencing report, which were available to the defendant.

Mary Anne Wirth of Bleakley Platt & Schmidt LLP for the appellant and Susan Corkery, assistant U.S. attorney, and Roslynn R. Mauskopf, U.S. attorney, for the appellee

Work Product Privilege

Grand Jury Subpoena

In Re Grand Jury Subpoena

05-6891-cv

Appealed from the Eastern District of New York

Issue: Are recordings made of business conversations with a colleague protected by work product privilege when made at the behest of an attorney with an expectation of litigation?

Background: The appellant is the subject of a criminal investigation related to his activities as a mortgage broker. At the suggestion of his attorney, he surreptitiously recorded conversations with business colleagues. A grand jury subpoena demanded that he produce these recordings, but the appellant argues they are attorney work product and privileged in the appeal from the district court’s determination that they are not.

Ruling: The court finds that the highest claim to evidence is one made by a grand jury and that the government met its burden in establishing that the grand jury had a substantial need for the fact- based information contained in the recordings, which otherwise could not be obtained.

Paula Schwartz Frome for the appellant and Robert M. Radick, assistant U.S. attorney, and Roslynn R. Mauskopf, U.S. attorney, for the appellee

Originally published by Daily Record Staff Report.

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