November 12, 2014

New York Law Journal / Written by: Harvey M. Stone, Richard H. Dolan

In the U.S. District Court for the Eastern District of New York, Judge Arthur D. Spatt vacated a guilty plea and sentence because petitioner had received 'affirmative misadvice' that deportation was merely a 'possible' consequence of the plea. In others: Judge I. Leo Glasser dismissed a Title VI claim against CUNY by an undergraduate who was allegedly barred from her French class and exam. Judge Raymond J. Dearie excluded speculative and unreliable opinions by plaintiffs' expert witness, who drew a link between Similac and juvenile diabetes; and Magistrate Judge Joan M. Azrack recommended a damages award for a violation of the Cable Communications Policy Act against restaurateurs who, without authorization, showed a pay-per-view boxing match to their patrons.

§ 2255: Withdrawal of Guilty Plea

In Zhang v. United States, 04 CV 3261, Judge Spatt granted petitioner's § 2255 motion to vacate his guilty plea and sentence, where defense counsel, the prosecutor and the court had misadvised petitioner that deportation was merely a possible, rather than certain, consequence of the plea. The plea was therefore not knowing and voluntary.

In 1985 petitioner, then seven years old, emigrated to the United States from China. He is a permanent resident, but not a U.S. citizen.

After becoming a practicing chemist, petitioner made 2,4 Dinitrophenol (DNP), a metabolic stimulant banned by the Food and Drug Administration, and sold it to body builders over the Internet. As a result, one of his customers died and another lapsed into a 10-day coma.

In 2001, petitioner was indicted on 10 counts of introducing a misbranded drug, 21 USC § 331(a), and 10 counts of mail fraud, 18 USC § 1341. He disposed of the case by pleading guilty to a single count of mail fraud. During the plea allocution the prosecutor referred to petitioner's 'possible' post-sentence deportation, and the magistrate judge noted that the felony conviction 'could' result in deportation. At the sentencing, the prosecutor and the court used similar language. Petitioner was sentenced to imprisonment for the maximum term, 60 months.

In June 2004, petitioner filed a § 2255 motion to vacate the plea. He argued that the plea was involuntary because his counsel and the court had misled him into believing that deportation was not a mandatory consequence of his conviction for the aggravated felony of mail fraud. Petitioner also argued that, had he pleaded guilty to the counts alleging the misbranding of a drug, he would have faced the same jail term, but not automatic deportation.

As Judge Spatt noted, the 'possibility' of deportation after a guilty plea is a 'collateral' rather than a 'direct' consequence of the plea, and thus need not be addressed at the plea hearing. Whether automatic deportation, as here, must be addressed at the plea hearing is a question not yet decided by the U.S. Court of Appeals for the Second Circuit. Slip op. 11.

Judge Spatt found it unnecessary to reach this issue, because the court and counsel did address the deportation issue--and caused petitioner to believe, incorrectly, that deportation would be discretionary. This error was of sufficient magnitude and prejudice to render the plea involuntary.

As Judge Spatt also observed, petitioner's mail fraud conviction is an aggravated felony requiring automatic deportation and barring discretionary relief under the Immigration and Nationality Act. Even if petitioner were to prevail in a claim under the Convention Against Torture, the best he could hope for would be removal to a country other than China. Slip op. 19.

In short, the constitutional defect in the plea was the 'affirmative misadvice' about deportation. Defense counsel added to the problem by suggesting to petitioner that mitigating factors--his marriage to an American, the lack of a prior criminal history, the conviction for a nonviolent crime-- would be relevant in deportation proceedings.

Title VI

In Aoutif v. City University of New York, York College, 05 CV 496 (EDNY, Dec. 8, 2005), Judge Glasser granted a motion to dismiss a complaint under Title VI of the Civil Rights Act, 42 U.S.C. § 2000(d). Plaintiff, a woman of Arab descent born in Morocco, claimed that CUNY had improperly withdrawn her from a French class because of her race, color or national origin.

The complaint, in essence, alleged the following: Plaintiff attended CUNY as a freshman during the fall semester of 2001 and enrolled in an elementary French class. In the 'tumultuous' wake of Sept. 11, 2001, plaintiff's French professor allegedly mistreated her, preventing her from obtaining credit for attendance, discouraging her from participating in class, barring her entry into the classroom, blocking her attempt to take the final exam and, as a result, giving her a failing grade.

After being barred from class, plaintiff unsuccessfully sought redress from the department chair, who allegedly told plaintiff, 'You're from Morocco, you're Arab, an Arabic student who frightens a French professor can go to jail.'

Plaintiff also 'pleaded' to several authorities within the college to allow her to take the final French exam even if she was barred from class. At one point, plaintiff claimed, an assistant in an office of one of the deans said, in plaintiff's presence and with reference to her, 'Bin Laden is here.'

Because she was not allowed to take the final exam, the university issued a failing grade for the course in February 2002. Plaintiff eventually succeeded in converting the final disposition to a 'W' (withdrawn), which could have unfavorable connotations on her record. In conversations with several department heads, 'some mention of [plaintiff's] Arab heritage was made.'

Plaintiff's claim was subject to a three-year statute of limitations. As Judge Glasser observed, any allegedly discriminatory act resulting in the failing grade occurred during the fall semester of 2001--over three years before plaintiff filed this complaint, on Jan. 27, 2005. Plaintiff's point that she did not receive her grade until February 2005 was unavailing. Her receipt of the failing grade, the court stated, 'is a quintessential example of a consequential, as opposed to a causal, act.' In other words, the failing grade was a consequence of her preclusion from the exam. Even if that preclusion was discriminatory, the discriminatory acts necessarily occurred outside of the limitations period. Obviously, plaintiff knew of those acts more than three years before filing the complaint.

One aspect of plaintiff's claim--that she was denied access to appeal her grade--was not time-barred. But the claim still could not survive a motion to dismiss. The allegations in the complaint of comments referring to plaintiff's race and origin were too conclusory, isolated and unspecified to show discriminatory intent. Moreover, she never alleged 'that she notified CUNY authorities of any alleged racial discrimination, or that those authorities knew of the discrimination and failed to respond.' Slip op. 9.

Inadequate Expert Opinion

In Colon v. Abbott Laboratories, a/k/a Ross Products, 03 CV 1492 (EDNY, Nov. 15, 2005), a products liability case, Judge Dearie granted defendant's motion for summary judgment and to exclude opinions by plaintiffs' experts that there was a link between insulin dependent Type 1 juvenile diabetes (T1D) and defendant's product, Similac infant formula.

After Alexis Colon was born, her mother, Carmella Stolyar, tried to breast-feed her but was ultimately unsuccessful. Ms. Stolyar fed Similac to Alexis, as a supplement to her breast-milk feedings and then as her only milk. At 18 months Alexis was diagnosed with T1D.

To counteract defendant's experts, Dr. Jack Newman, plaintiffs' expert, contended that there was a connection between the development of T1D and the cow's milk in Similac. In Judge Dearie's view, Dr. Newman's subjective belief and unsupported speculation did not meet the requirements of Daubert and Federal Rule of Evidence 702. Dr. Newman also failed to provide a reliable explanation for the theory. Similarly, Dr. Newman could not establish that Similac specifically caused plaintiff's T1D, because (1) there was a substantial analytical gap between the possibility of a link and his conclusion that there was a link; (2) he offered only opinion evidence; (3) his opinions were not supported by his references; and (4) he excluded other possible causes of plaintiff's T1D.

Even if admissible, Dr. Newman's opinions 'would not permit a fact finder to conclude that it is more likely than not that Similac causes Type 1 diabetes. ' Granting summary judgment to defendant, Judge Dearie stated:

What the scientific community will in the course of time prove or disprove remains to be seen, but asking a lay jury to do what science has yet to do, and may never do, would be clearly inappropriate. It may well be, as defendants' experts suggest, that science has overtaken plaintiffs' theory of causation; or, perhaps, the ongoing studies will provide critical evidence to establish a connection. But the trial court is no place for pure theory, hypothesis, or even sincerely held opinion. And, for the moment at least, that is all plaintiffs are in a position to offer. Slip op. 22.

Cable Laws: Damages

In Kingvision Pay-Per-View, Ltd. v. Batista, 05 CV 0614 (EDNY, Oct. 6, 2005), Magistrate Judge Azrack, in a Report and Recommendation to Judge Raymond J. Dearie, recommended a damages award for violation of the Cable Communications Policy Act, 47 USC § § 553(a)(1) and 604(a), in the total amount of $31,590, including statutory damages, an increase for the willful violation of the statute and attorney's fees and costs. Defendants had violated the act by showing a televised boxing event at their restaurant.

Plaintiff, a franchised cable television operator that markets and licenses boxing events on a pay-per-view basis, was the broadcast licensee of a boxing match between Felix Trinidad and Ricardo Mayorga on Oct. 2, 2004. Plaintiff paid substantial fees for its right to telecast the program and was paid substantial fees in return by commercial establishments for the right to transmit the event to their patrons.

An investigator visiting defendants' restaurant, El Gran Mar De Plata, on Oct. 2, 2004 observed the Trinidad/Mayorga boxing event on the television, and counted approximately 190 patrons viewing the fight. Defendants did not have authorization to intercept or receive the signal of the event and had not paid for the privilege of showing the event in a commercial venue.

After service of the complaint, defendants defaulted. Judge Azrack awarded statutory damages under 47 USC § 605(a), which proscribes the unauthorized interception and publication of any 'radio communication.' The court set per-patron damages at $50 and multiplied that number by 190--the number of patrons observed by the investigator--for statutory damages of $9,500. Next, the court awarded $20,000 in enhanced damages for defendants' continuing egregious behavior (they had pirated three previous events, also resulting in default judgments). Judge Azrack awarded attorney's fees based on the 'lodestar' method, but reduced the requested amount, citing the ''cut and paste job,' and a sloppy one at that.' Slip op. 13.

Harvey M. Stone and Richard H. Dolan are partners at Schlam Stone & Dolan. Bennette D. Kramer, a partner of the firm, assisted in the preparation of the article.

[This article is reprinted with permission from the December 15, 2005, issue of the New York Law Journal. Copyright © 2007 ALM Properties, Inc. All rights reserved. Further duplication without permission is prohibited.]