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5,595,665 | The judgment of the trial court declining to issue a second writ of habeas corpus was correct. Judgment affirmed. All the Justices concur. | opinion_xml_harvard | 23 | 2022-01-11 02:35:21.70859+00 | 020lead | t | f | 5,743,940 | null | null | U | f | Published | 0 | Jackson v. Hopper | Hopper | JACKSON v. HOPPER | null | null | null | null | null | null | null | null | null | 62,098,785 | 29446 | 0 | ga | S | t | Supreme Court of Georgia | Supreme Court of Georgia |
802,681 | FILED United States Court of Appeals Tenth Circuit June 20, 2012 UNITED STATES COURT OF APPEALS Elisabeth A. Shumaker Clerk of Court TENTH CIRCUIT UNITED STATES OF AMERICA, Plaintiff - Appellee, No. 11-3179 v. (D.C. No. 2:10-CR-20135-CM-1) (D. Kan.) SHERI L. ZUBER, Defendant - Appellant. ORDER AND JUDGMENT * Before KELLY, TYMKOVICH, and GORSUCH, Circuit Judges. ** Defendant-Appellant Sheri L. Zuber was convicted in a jury trial of possession with intent to distribute crack cocaine (Count 1), cocaine (Count 2), and marijuana (Count 3). 1 R. 27 -32; 21 U.S.C. §§ 841 (a)(1), (b)(1)(A)(iii), (b)(1)(C), (b)(1)(D); 18 U.S.C. § 2 . She was sentenced to 97 months’ imprisonment followed by four years’ supervised release. On appeal she * This order and judgment is not binding precedent, except under the doctrines of law of the case, res judicata, and collateral estoppel. It may be cited, however, for its persuasive value consistent with Fed. R. App. P. 32.1 and 10th Cir. R. 32.1. ** After examining the briefs and the appellate record, this three-judge panel has determined unanimously that oral argument would not be of material assistance in the determination of this appeal. See Fed. R. App. P. 34(a); 10th Cir. R. 34.1(G). The cause is therefore ordered submitted without oral argument. challenges the denial of her motion to suppress a statement to an officer; the court’s finding that her testimony warranted a two-level sentencing enhancement under U.S.S.G. § 3C1.1; and the sufficiency of the evidence supporting her conviction. Jurisdiction exists under 28 U.S.C. § 1291 and 18 U.S.C. § 3742 (a) and we affirm. Background In May 2010, Kansas City Police Department Officers Brandon Holloway and Christopher James responded to an automobile accident. 2 R. 249 , 306. Ms. Zuber told Officer Holloway at the scene that she owned one of the vehicles involved; that she had been riding as a passenger; and that the driver had left to get a tow truck. Id. at 259. Later she changed her story, telling the officer that she had not been a passenger; that a different individual had been driving; and that she had been at work and showed up after the accident occurred. Id. at 260. According to Officer Holloway, while Ms. Zuber’s vehicle was being towed, he saw her go to the trunk and pull out a black bag, some clothing, and chairs. Id. at 271. The tow-truck driver, a government witness at trial, testified that when he opened the trunk (at Ms. Zuber’s request) he smelled an “overwhelming” stench of marijuana; he then saw her stuff marijuana from the trunk into the black bag and enter a nearby McDonald’s. Id. at 363-69. He testified that he told Officer James what he had smelled and seen and that the -2- officer went into the McDonald’s after her. Id. at 369-70. Inside the restaurant, Officer James questioned Ms. Zuber about the smell. She said there was no reason for such a smell but was trembling and apparently dropped the bag on the floor; he detected a strong odor of marijuana. Id. at 318- 19, 322. He searched the bag and observed what was identified later as 92.8 grams of marijuana, 102.6 grams of crack cocaine, and 22.3 grams of powder cocaine, and handcuffed Ms. Zuber. Id. at 322-23. He testified that Ms. Zuber, once in custody, said the bag did not belong to her and that someone else had told her to get it out of the car. Id. at 333. At trial, she testified that she had not removed the bag from the trunk and that Officer Holloway and the tow-truck driver testified untruthfully as to observing her do so. Id. at 510-11. Before trial, the court denied Ms. Zuber’s motion to suppress her statements. Id. at 69-73. At sentencing, the court applied a two-level enhancement for obstruction of justice, under U.S.S.G. § 3C1.1, based on her trial testimony denying that she removed the bag from her car. Id. at 638. Discussion A. Motion to Suppress When reviewing a denial of a motion to suppress, we consider the evidence in the light most favorable to the government, accept the court’s factual findings unless clearly erroneous, and determine Fourth Amendment reasonableness de -3- novo. United States v. Eckhart, 569 F.3d 1263 , 1270 (10th Cir. 2009). Ms. Zuber claims that her statements—that the black bag was not hers and that she was told to retrieve it by someone else—were inadmissible because they were made during custodial interrogation without Miranda warnings. Specifically, she argues that Officer James should have known that his query about the odor, his handcuffing of her, and his search of the bag, were reasonably likely to elicit an incriminating response. Aplt. Br. 8. The government concedes that Ms. Zuber was in custody but contends that no interrogation occurred. We agree. Interrogation, under Rhode Island v. Innis, 446 U.S. 291 , 300-01 (1980), means either “express questioning or its functional equivalent.” Officer James was entitled to proceed as he did without anticipating that she would volunteer her denials. He did not ask her about ownership or possession of the bag. The court’s factual finding that her statement was spontaneous and unsolicited is not clearly erroneous, and Miranda allows the admission of volunteered statements not made in response to police questioning. Miranda v. Arizona, 384 U.S. 436 , 478 (1966); United States v. Pettigrew, 468 F.3d 626 , 633-34 (10th Cir. 2006). The district court correctly declined to suppress her statement. B. Two-Level Sentencing Enhancement In considering challenges to sentencing enhancements under § 3C1.1, we review the district court’s factual findings as to the obstruction of justice under -4- the clearly erroneous standard, and review de novo the district court’s legal interpretation of the Sentencing Guidelines. United States v. Hawthorne, 316 F.3d 1140 , 1145 (10th Cir. 2003). Under § 3C1.1, a district court may enhance a sentence if the defendant, while “testifying under oath or affirmation . . . gives false testimony concerning a material matter with the willful intent to provide false testimony, rather than as a result of confusion, mistake, or faulty memory.” United States v. Dunnigan, 507 U.S. 87 , 94 (1993). The court so found. Ms. Zuber argues that she should have been allowed to maintain a “general difference of opinion” with the testimony of Officer Holloway and the tow-truck driver, otherwise her “constitutional right to testify” is diminished. Aplt. Br. 13. But she does not dispute the district court’s specific factual findings about her willfully false testimony over material facts, nor does she argue that the court misinterpreted § 3C1.1. She argues that the jury could have relied on other evidence in reaching its verdict, but that does not address her testimony. We do not find that the district court made any error of law. C. Sufficiency of the Evidence In reviewing a challenge for sufficiency of the evidence, we ask only “whether taking the evidence—both direct and circumstantial, together with the reasonable inferences to be drawn therefrom—in the light most favorable to the government, a reasonable jury could find the defendant guilty beyond a reasonable doubt.” United States v. King, 632 F.3d 646 , 650 (10th Cir. 2011). -5- “We will not weigh conflicting evidence or consider witness credibility, as that duty is delegated exclusively to the jury” and we must affirm unless “no rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt.” Id. (internal quotations omitted). Ms. Zuber argues that no rational jury would have reasonably concluded that the bag belonged to her. Aplt. Br. 16. We disagree. The bag was in her vehicle and the jury heard testimony from both Officer Holloway and the tow- truck driver that indicated that she retrieved the bag from the vehicle. The jury simply did not credit her testimony. The evidence was sufficient. Entered for the Court Paul J. Kelly, Jr. Circuit Judge -6- | opinion_html_with_citations | 1,316 | 2012-06-20 16:11:56+00 | 010combined | f | f | 802,681 | Gorsuch, Kelly, Tymkovich | null | CU | t | Unpublished | 0 | United States v. Zuber | Zuber | UNITED STATES of America, Plaintiff-Appellee, v. Sheri L. ZUBER, Defendant-Appellant | null | null | <parties id="b947-5">
UNITED STATES of America, Plaintiff-Appellee, v. Sheri L. ZUBER, Defendant-Appellant.
</parties><docketnumber id="Am7t">
No. 11-3179.
</docketnumber><br><court id="b947-8">
United States Court of Appeals, Tenth Circuit.
</court><br><decisiondate id="b947-9">
June 20, 2012.
</decisiondate><br><attorneys id="b947-25">
Terra Morehead, Office of the United States Attorney, Kansas City, KS, for Plaintiff-Appellee.
</attorneys><br><attorneys id="b947-26">
Dionne Michelle Scherff, Erickson Scherff, LLC, Overland Park, KS, for Defendant-Appellant.
</attorneys><br><attorneys id="b947-27">
Sheri L. Zuber, Leavenworth, KS, pro se.
</attorneys><br><judges id="b947-28">
Before KELLY, TYMKOVICH, and GORSUCH, Circuit Judges.
<a class="footnote" href="#fn*" id="fn*_ref">
*
</a>
</judges><div class="footnotes"><div class="footnote" id="fn*" label="*">
<a class="footnote" href="#fn*_ref">
*
</a>
<p id="b947-18">
After examining the briefs and the appellate record, this three-judge panel has determined unanimously that oral argument would not be of material assistance in the determination of this appeal.
<em>
See
</em>
Fed. R.App. P. 34(a); 10th Cir. R. 34.1(G). The cause is therefore ordered submitted without oral argument.
</p>
</div></div> | null | null | null | null | null | null | 755,334 | 11-3179 | 0 | ca10 | F | t | Tenth Circuit | Court of Appeals for the Tenth Circuit |
7,020,595 | JUSTICE STOUDER delivered the opinion of the court: In September and October, 1978, five female employees of the Canton State Bank filed charges with the Fair Employment Practice Commission (FEPC or Commission) against their employer claiming that the bank discriminated on the basis of sex by paying a higher salary to a male employee for performing the same duties. The Commission filed a complaint against the bank on March 5, 1979. The administrative law judge who presided over the hearing decided that the bank was engaging in sex discrimination. The bank appealed and the Commission upheld the decision of the administration law judge. On further review the circuit court of Fulton County reversed the Commission’s decision, finding among other things that the administrative law judge’s decision that the bank did not not have a management-training program was against the manifest weight of the evidence. We agree. The complainants base their claim on the fact that a male employee, Thomas Wheeler, was paid more than themselves for performing substantially the same work. Thomas Wheeler, the alleged management trainee, began working for the bank in 1974 as a part-time employee. Before graduating from college after having second thoughts about pursuing his planned teaching career, Wheeler discussed permanent employment at the bank with Otto Stephenitch, the bank president, after graduating from college as an alternative to teaching. In March 1977 Wheeler began working at the bank. He started in the bookkeeping department, and in July 1977 he replaced the department supervisor for two weeks while she was on vacation. Shortly afterward in the same month Wheeler moved to the main floor and then to the drive-in-window to train as a teller. He replaced both the drive-in supervisor and the main floor supervisors when they went on vacation. Of the five complainants only one was a supervisor of Wheeler, and Wheeler was making more than any of them while he was working in the departments in which they worked. Before discussing our reasons for deciding that the administrative law judge’s decision was against the manifest weight of the evidence, we will briefly discuss the bank’s claim that the administrative law judge improperly decided this case as an “equal pay” claim rather than as a sex-discrimination case. The bank reasons that the FEPC had no authority to decide a wage-discrimination claim because the sole remedy for such claims is the female employment act (Ill. Rev. Stat. 1979, ch. 48, par. 4(a)). The female employment act makes it a misdemeanor to discriminate against women in payment of wages and imposes a substantial fine. The bank’s argument would preclude a civil action based upon wage discrimination in Illinois. Although there is no case law deciding this issue, the “Guidelines on Discrimination in Employment” promulgated by the FEPC suggest that such a cause of action is within the scope of the FEPA. The Guidelines considered it a violation “for an employer *** to differentiate between men and women performing the same or substantially similar work in fixing the wages, benefits and compensation to be made to such employees.” See City of Chicago v. Illinois Fair Employment Practices Com. (1980), 87 Ill. App. 3d 597, 601, 410 N.E.2d 136.) We find that wages are a “term or condition of employment” and, therefore, one type of discrimination covered by the Act. The administrative law judge properly considered this a wage-discrimination case. In so holding we do not find that we must reach a different decision than did the trial judge, because we also find that the administrative law judge’s decision was against the manifest weight of the evidence. We have considered the evidence in the record and find that, although no formal management training plan had been adopted by the bank and the departments in which Wheeler worked stated they were never informed that Wheeler was a management trainee, the evidence overwhelmingly supports the proposition that Wheeler was hired to perform a different job than the complainants. No other employee at the bank temporarily assumed a supervisory position in a department in which they had worked for only three months when other employees in that department knew far more about that area of the Bank. In Shultz v. First Victoria National Bank (5th Cir. 1969), 420 F.2d 648, the circuit court of appeals reviewed a bank’s alleged management training program to decide whether such plan qualified as an exception to the provision of the Equal Pay Act which requires that employees be paid equally for performing the same tasks. Although the court in Schultz found that the bank did not have a bona fide training program, it based its decision largely upon the fact that the “trainees” moved through departments of the bank just as any other employee would to work his/her way up through the ranks. The court described the rotation of the trainees as “unpredictable, sporadic, and unplanned” (420 F.2d 648, 655), and their rotation was largely based upon the bank’s personnel needs. In contrast to the situation described in Shultz, Wheeler was moved regularly from department to department. As of the time these charges were filed, only slightly more than a year after Wheeler had begun working full time at the bank, he had worked in three departments of the bank and had substituted for all three department supervisors when they were on vacation. None of the complainants had moved more than once to a different department, and all of the complainants had worked at the bank at least three years prior to this proceeding. Also, none of them had a college degree. We find no support in the record for the administrative law judge’s finding that the training program was an afterthought by the bank adopted to avoid this sex-discrimination charge. We, therefore, agree with the circuit court that the administrative law judge’s finding that a management-training program did not exist at the bank is contrary to the manifest weight of the evidence. This finding is dispositive of the wage-discrimination claim, because without any male employees performing substantially the same work as the female claimants no discrimination based upon sex occurred. The decision of the circuit court of Fulton County is therefore affirmed. Affirmed. HEIPLE and BARRY, JJ., concur. | opinion_xml_harvard | 1,033 | 2022-07-24 04:41:40.648+00 | 020lead | t | f | 7,113,979 | Stouder | null | U | f | Published | 0 | Canton State Bank v. Illinois Human Rights Commission | null | CANTON STATE BANK v. ILLINOIS HUMAN RIGHTS COMMISSION | null | null | null | null | null | null | null | null | null | 64,102,334 | No. 3—83—0457 | 0 | illappct | SA | t | Appellate Court of Illinois | Appellate Court of Illinois |
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