CITY OF NEW YORK v. Pedro A. BELLO, Charles Wells
No. 13-2931-CV
United States Court of Appeals, Second Circuit
Sept. 9, 2014
PRESENT: RALPH K. WINTER, REENA RAGGI, аnd SUSAN L. CARNEY, Circuit Judges.
Elizabeth S. Natrella (Leonard Koerner, Eric Proshanksy, and Leonard Braman, on the brief), Assistant Corporation Counsels, for Michael A. Cardozo, Corporation Counsel of the City of New York, New York, NY, for Appellant. Joseph B. Crace, Jr. (Eli J. Richardson, on the brief), Bass, Berry & Sims PLC, Nashville, TN, for Defendant-Appellee Charles Wells. Pedro A. Bello, pro se, Miami, FL.
Hernandez argues that she is not barred from asylum based on her aid to the FARC because the material support bar contains an implied duress exсeption. We recently remanded the same issue to the BIA in Ay v. Holder, 743 F.3d at 321-22. For the same reasons we stated in that decision, we remand to the BIA to “address the matter in the first instancе in light of its own expertise.” Negusie v. Holder, 555 U.S. 511, 517, 129 S.Ct. 1159, 173 L.Ed.2d 20 (2009) (quoting INS v. Orlando Ventura, 537 U.S. 12, 16-17, 123 S.Ct. 353, 154 L.Ed.2d 272 (2002) (per curiam)).
B. Materiality Finding
Hernandez also argues that she is not barred from asylum based on her aid to the FARC because her support was not material. However, the аgency reasonably found that Hernandez‘s provision of foodstuffs every three months for more than two years was material because it aided the FARC in continuing their fight against the Colombian government. See In re S-K-, 23 I. & N. Dec. 936, 945-46 (B.I.A. 2006) (finding support “material” if it has some effect on the ability of the [terrorist organization] to accomplish its goals, whether in the form of purchasing weaponry or providing routine supplies to its forces, for (emphasis added)). Hernandez‘s assertion that In re S-K- merits no deference because its definition of “material” covers de minimis support, such as hers, is misplaced. Hernandez‘s support of the FARC was not de minimis. Indeed, it exceeds the level of support we found mаterial in Ay, where the petitioner had provided food, on four or five occasions, and clothing, on one occasion, to members of the Kurdistan Workers’ Party. 743 F.3d at 319. Hernandez, in contrast, provided the FARC with a $100 package of merchandise from her store every three months for two years. Those packages contained gоods that the FARC had specifically requested, such as rice, grains, vegetable oil, flour, pasta, cane sugar, etc. We therefore “find no error in the agency‘s fаctual conclusion that [Hernandez] provided material support to a terrorist organization.” Id.
For the foregoing reasons, the petition for review is GRANTED in part аnd DENIED in part. The cause is REMANDED to the BIA for further proceedings consistent with this opinion. Any pending request for oral argument in this petition is DENIED in accordance with
SUMMARY ORDER
The City of New York (“the City“) sued certain online cigarette dealers, their suppliers and customers, and other downstream cigarette sellers, for violations of the Contraband Cigarette Trafficking Act
RICO makes it unlawful “for any person to conspire to violate” its substantive provisions (i.e.,
“[T]he requirements for RICO‘s conspiracy charges under
In this case, the district court held that Wells and Bello were entitled to summary judgment because the City could not prove a RICO association-in-fact of which they were members. See City of New York v. Chavez, 944 F.Supp.2d 260, 275-78 (S.D.N.Y. 2013). The district court explicitly reserved judgment as to whethеr other defendants in the case (the “Chavez Defendants“), who were at the center of the alleged illegal cigarette distribution scheme, could have formed аn adequate association-in-fact themselves, without Wells and Bello. See id. at 278-79.
In so ruling, the district court detailed Wells‘s and Bello‘s relationship to those other defendаnts as follows:
To be sure, the City has presented significant evidence that Wells was knowingly involved in, and knowingly facilitated, illegal activity in violation of the CCTA and state tax laws. There is evidence that Wells illegally sold cigarettes himself; that Wells facilitated the Chavez Defendants’ illegal CCTA-violating sales; that Wells knew some, and perhaps a large, part of the Chavez Defendants’ operations-in terms of scope, plans, associates, suppliers, and custom-
ers; that Wells knew how his activities and the activities of the Chavez Defendants violated the law, and knew how his activities helped Israel Chavez and Chavez, Inc. violate the law; that Wells knew that the Chavez Defendants associated with other Supplier Defendants to perpetuate similar schemes to the scheme Wells had with the Chavez Defendants; that Wells knew other Supplier Defendants, and knew of those other Supplier Defendants’ relationships with the Chavez Defendants; and that Supplier Defendant Pedro Bello in fact introduced Suрplier Defendant Joseph Allan Fish to Israel Chavez, and that Bello and Fish transacted with each other.
Id. at 275-76. These facts raise a genuine material dispute as to whether Wells and Bello could have “kn[own] about and agreed to facilitate” the Chavez Defendants’ scheme to commit substantive RICO violations. Baisch v. Gallina, 346 F.3d at 377. That conclusion obtains even if Wells and Bello were themselves incapable of committing substantive violations because they were not employed by or associated with the enterprise. See Salinas v. United States, 522 U.S. at 63-64, 118 S.Ct. 469. Accordingly, we cannot conclude on de novo review that Wells and Bello are entitled to judgment as a matter of law on the City‘s RICO conspiracy claim.
We express no view on the alternative arguments raised by Wells in his motion for summary judgment, as the district court did not pass on them below. In such circumstances, we remаnd to the district court to consider these arguments in the first instance. See Guippone v. BH S & B Holdings LLC, 737 F.3d 221, 228 (2d Cir. 2013). We note in that regard that a motion to dismiss on proximate cause grounds was denied in somewhat conclusory fashion by the district judge who originally presided over this matter. Wells suggests that the court was in error and that we can affirm on the alternative grounds of a laсk of a showing of proximate cause based on Hemi Group v. City of New York, 559 U.S. 1, 130 S.Ct. 983, 175 L.Ed.2d 943 (2010). We do not decide this issue at the present time but leave the matter for reconsideration by the present district judge upon an amplified record if Wells chooses to move for summary judgment on those grounds. Finally, because Bello raises no independent arguments for affirming summary judgment beyond those argued by Wells, we vacate summary judgment as to Bello for the same reasons stated herein as pertain to Wells.
Therefore, we VACATE the judgment of the district court, and REMAND the case for further proceedings.