August 1, 2008

U.S. Court of Appeals for the Second Circuit Case Summaries: August 1, 2008

U.S. Court of Appeals for the Second Circuit


Number of Victims

U.S. v. Abiodun


Appealed from the Southern District of New York

Background: The appellants, following their guilty pleas to various charges of fraud, appeal their sentences imposed by the district court. They were sentenced to 87 and 96 months, respectively, and challenge the court's determination of the number of victims affected by their conduct, to the extent that it factors into the sentences imposed.

Ruling: The court finds the trial court incorrectly calculated the number of victims affected by the defendants' conduct, but it rejects the argument that an individual who is reimbursed for economic loss cannot qualify as a victim under the number-of- victims enhancement under the sentencing guidelines. The case is remanded for resentencing and a determination as to whether, if individuals whose losses ultimately consisted only of lost time are excluded from the count, it is still "more likely than not" that Abiodun's crimes affected "250-plus victims."

Andrew H. Freifeld and Brian I. Kaplan for the appellants, and Marcus Asner, assistant U.S. attorney, for the appellee

Clean Water Act

Citizen Suits

Coon v. Willet Dairy


Appealed from the Northern District of New York

Background: A group of neighbors in East Genoa appeal a decision granting the defendant and its owners summary judgment. The appellants brought a citizen suit under the Clean Water Act, alleging the defendants failed to manage their operation's animal waste properly and otherwise caused environmental and public health hazards. The appellants argue summary judgment was inappropriate because, among other reasons, Willet Dairy operated without a permit prior to July 1999, in violation of the CWA, and discharged pollutants into navigable waterways after July 1999, also in violation of the CWA and its permit.

Ruling: Compliance with an authorized permit is deemed compliance with the CWA, so long as Willet Dairy acted in accordance with its permit it cannot be held liable in a citizen suit for CWA violations. There is no indication from the appellants that the defendants failed to meet any compliance deadlines. Willet Dairy also did not need a permit to divert Schaeffer Brook to construct the stock pond. Summary judgment on that claim was proper.

Gary A. Abraham of the Law Office of Gary A. Abraham and Alan J. Knauf of Knauf Shaw LLP for the appellants, and David L. Cook of Nixon Peabody LLP for the appellees.

Originally published by Daily Record Staff & Wire Reports.

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