Eastern District Roundup

“Whether for religious or secular reasons,” the court added, “human beings require the company of others to stay healthy.” Similarly, “research demonstrates the psychological harms of solitary confinement and segregation,” forms of punishment that may “seriously inhibit rehabilitation.”

Thus, assuming the proposed order is constitutional, the court elected in its discretion not to issue it. “It is expected,” Judge Weinstein stated, “that this defendant, like all others, will have telephonic and visiting privileges with his natural family.” The Bureau of Prisons, moreover, has “adequate power” to deter participation in organized crime “without resorting to harsh confinement.” Slip op. 7.

While ordering non-association with other criminals during supervised release, the court chose not to cut off familial association, which eases integration into society. Should interaction with relatives lead to the possibility of further crime, the powers of probation officials and the court suffice to deal with the problem. The overriding factor is that “[u]nnecessary denial of contact with family stunts rehabilitation and violates basic human rights.” Slip op. 9-10.

Speedy Trial Act

In United States v. Munlyn, 08 CR 796 (EDNY, April 15, 2009), Judge Bianco, while dismissing an indictment because of a 65-day delay between defendant’s arraignment and his eventual indictment, declined to dismiss with prejudice.

In March 2008 defendant, then already a convicted felon, was arrested on state charges of robbery. At the time, he was allegedly in possession of a loaded firearm, resulting in charges of criminal possession of a weapon in violation of New York Penal Law. The weapons charge was later referred to the Eastern District U.S. Attorney’s Office. In June 2008 defendant was found guilty by a Nassau County jury on robbery and related charges. In July 2008 he was sentenced to consecutive terms of imprisonment for a total of 17 years.

On Sept. 8, 2008, defendant was arraigned in the Eastern District on a federal complaint charging possession of a firearm by a convicted felon. Under the Speedy Trial Act, the indictment on those charges had to be filed within 30 days of the arraignment. The indictment was 45 days late. Defendant moved to dismiss the indictment with prejudice.

On balance, Judge Bianco found no basis for a dismissal with prejudice:

As Judge Bianco noted, dismissal without prejudice is not a “toothless sanction,” United States v. Taylor, 487 U.S. 326, 342 (1988), and will require the government to obtain a new indictment within six months if it decides to reprosecute.

Montreal Convention

In Hutchinson v. British Airways PLC, 08 CV 2781 (EDNY, April 6, 2009), Judge Garaufis denied a motion by British Airways (BA) to dismiss a putative class action complaint alleging that British Airways’ baggage handling system was operated “recklessly and with knowledge that damage would probably result.”

Plaintiffs allege that from April through June 2007, British Airways lost bags at twice the rate of the worst U.S. airline. The British airline’s Heathrow processing centre had a massive backlog of lost luggage – 40,000 lost bags in March 2007 – and sometimes auctioned off lost bags after only a few weeks. British Airways admitted in 2007 that its baggage service did not meet an acceptable standard. The complaint included allegations of lost, damaged and delayed baggage relating to the various named plaintiffs.

In 2003 the Montreal Convention, a comprehensive international treaty that addresses the liability of airline carriers for destroyed, lost, damaged or delayed baggage, replaced the Warsaw Convention. Article 22 of the Montreal Convention expressly limits the liability of carriers for the destruction, loss, damage or delay of baggage, unless a plaintiff can prove that the damage resulted from an act or omission “done with intent to cause damage or recklessly and with knowledge that damage would probably result.” Because the Montreal Convention is substantially the same as the Warsaw Convention, courts look to the cases interpreting the Warsaw Convention.

British Airways contended that plaintiffs had failed adequately to allege that its conduct was reckless or that it acted with knowledge that damage would probably result. To demonstrate that the airline was aware that its baggage handling system would cause damage, loss or delay to some passengers’ baggage, plaintiffs pointed to British Airways’ acknowledgement that its service did not meet an acceptable standard and concession that it had lost baggage at rates from 2.8 percent to 2.3 percent, which was 60 percent above the industry average.

Judge Garaufis determined that plaintiffs’ allegations stated a claim under the Montreal Convention. First, plaintiffs alleged that British Airways’ conduct was