text:
I am a respectful and easygoing person. I work and study a lot and so spend a lot of time at my computer but I am happy to have a chat or a game every now and then. I enjoy surfing, bush-walking and video games. I am open to sharing some food but would generally prefer that food is managed individually. I am looking for housemates who are also respectful and easygoing.
We are a young couple from Germany and Canada that are very active during the day and enjoy relaxing on the weekends. Julia works wherever her agency places her, whether it's in a festival selling ice creams or in a wearhouse sorting boxes out. Tom works for Deliveroo and enjoys working out in the morning. We have little to nothing in our backpacks and are planning to move to Tasmania in February for farm work. Until then, January being a superb month in Sydney, we are looking to spend much time outdoor and attend the festivals coming up! We are open minded people that like to laugh, we live in the moment.
Full time employed - software engineer with CommBank in CBD, late 20s male, Clean and organised. Friendly and have respect and consideration for others' space and time. Like to go out or just sit in and watch something. Will pay bills on time. Looking for a private room, long term.
Hello there! I'm a journalism graduate travelling in Sydney now, originally from Singapore. I'm respectful, tidy and easy going, would love a pint over a chat with mates every now and then with no problem giving people their space. If you think I'm a potential housemate, kindly drop me a text. Cheers x
We both do our part to clean our own mess and it nags at us leaving it there. We are both very possative and friendly almost all the time. We also are both respectful of others wants and we would love to live in a shared property in Sydney .
I'm friendly, eastly to get on with and reliable!
Moving over from Perth in late December, I'm looking for a room/teamup for my early-thirties life crisis. 32 year old Chef relocating to continue a culinary education. Easy going, friendly, responsible and respectful, quirky but not overly weird (especially when tired), I will make best housemate for other under roof people. Enjoys cooking, drinking, sleeping, funny movies, 90s R&B, memes, hanging out the laundry, quoting the same line from Forrest Gump over and over, unsolicited 2am conversations, and helping people feel good about themselves. If this works for you then let's see if it works for both/all of us. Laters sk8ters
Hello, I'm a 28 years old male, from California, but raised in Canada. I'm looking for at least 6 months accommodation. I work full time in the CBD and Randwick, so I'm usually busy. I will need a place by the 10th of December, so I'm pretty flexible with where I'd like to stay. Feel free to contact me, as I would love to see the place to see if it's a good fit. Cheers, Andy
Moving over from the UK on a working holiday visa. I'm looking for a place to stay where i can get up on my feet and housemates to help me do so. Im a friendly and genuine guy who is respectful and tidy.
Hello,I am Sky,a 42km marathon finisher,sociable and considerate,love cooking and laughing,looking for a comfortable room or bed,prefer in Bondi,North Sydney or city. Hopefully that is the home after one day work and study where we can chill out and enjoy life itself,my dear friends. Good reference:)
I'm almost 20 years old (Italian). I'm here with a WorkingHolidayVisa. I can describe myself as friendly, clean, respectful and open-minded. On one side, I'm a calm and private person so I won't be pushy towards other people. Love drawing.
I am an Italian student who loves travelling, cooking and learning languages. I am a very tidy and friendly person. I am used to have flatmates and I care about establishing a friendship with the people I share the house with.
Im friendly, God-fearing, i can easly adopt different culture and fun to be with with sense of humor 😬 Im looking for a place to stay next year im scouting right now i hope i can find a good rate thats affordable for my budget im working in hospitality!
Hey we are a fun couple who always like to have a bit of a laugh. We are both very chilled and relaxed people, enjoy a few beers and wines in the sun on the weekend, and like to eat out as well as in! We are both active sorts, gym, walking, running. He is a very hard working Carpenter, and has worked in this industry in Australia for the last year. She is in the process of relocating to Sydney and has worked as an ECE Teacher for the last twelve years. We are looking for a room for the both of us that we will always keep clean and tidy. With high respect for others that may live there! We are looking for long term options!! A FURNISHED ROOM would be a bonus, and also on site, or close by PARKING that does not come at too much of an extra cost, no meters to pay etc. He is Irish, and She is from New Zealand!! Both have great worldly knowledge and have travelled far and wide! We both love watching sports, especially rugby and football! We are just hands down awesome flatmates to have so i know we would fit in anywhere!!
We are a fun couple from Portsmouth UK. Looking for somewhere to spend the festive season. We are both clean and tidy and were not huge party animals so we wont keep you up all night.
Mi novio, Miquel y yo somos de Barcelona, España. Irá a Sydney para estudiar Inglés y un curso sobre nuestro grado, estudió Economía y acabo de terminar mis estudios sobre la ley laboral y de los Recursos Humanos. Vamos a pasar dos años aprox, porque queremos vivir la experiencia de la forma más largo. Nos encanta viajar y esta es una razón por la que queremos ir allí, porque no son todas diferentes lugares hermosos para visitar y es un sueño muy importante y aventura para nosotros.
I'm 20 and from England, I'm a pretty easy going person who likes to chill and hang out from time to time!
Good hearted , respectful women who is looking for a new place on the northern beaches
My wife, my 8 month old baby and I are moving to Oz on Jan 2017. We are used to live in a clean house back home. My wife likes to keep everything in its place and I like to cook. Our baby is a beautiful 8 month old, she was born on april 2016. She likes to crawl and is learning to walk. She is quiet and well behaved. I am an electrical engineer with good english skills, my wife doesn't speak english, she will learn though. I'm going to be working all day, so that leaves my wife and my baby by their selves. She likes to walk around the city and the baby enjoys being outside. We are a mature and pretty normal couple. We are looking for accomodation in Sydney or suburbs. A 30 or 45 minute train ride everyday to work is not a problem.
29, Welsh, Designer. Originally from Wales, UK. Have lived in London the past 6/7 years now looking at a working holiday in Sydney. No students, or couples ideally. Close to the beach… Very clean, chilled, super easy-going. Film, food & coffee lover. :)
Hi! I'm Imogen, a 26 year old moving to Sydney from London. I currently work in digital marketing but will be on the hunt for a new job when I arrive. I'm looking for a relaxed easygoing place to call home. As i'll be new to the city it would be great to have flatmates who are up for the odd dinner/drink and keen to meet new people as well. I am, however, pretty independent and happy to do my own thing so would be respectful of your time/space and would want you to be the same. I'm active, love the outdoors and keeping fit. I also love food, cosy nights in and the odd night out. Get in touch if you're keen to chat! Imogen
Hi everybody, I'm an Italian, 35 years old man and I'm in Sydney for studying full time and working part time. Something about me: my friends say that I'm a tidy, clean and polite person and in addition I think that I'm an independent person who really likes to spend my spare time with others people. Contact me if your advertisement matches with my wishlist: - 1 flatmate or a couple - private room - own bathroom - fully equipped kitchen - internal laundry and dryer Should you have queries please don't hesitate to contact me.
Hi I'm Laetitia, I'm 22 and I'm from France. I have a working holiday visa and for the moment i am going to stay in Sydney.
Hi, My name is Lediana, I'm a student and I come from Italy. I'm a tidy and friendly person who want to learn and improve my English. I'm moving to Australia next month (8th December) and I'm looking for a long-term accommodation, single room/ share room. Important for me is the clean of home. My hobbies are drawing, reading, traveling, cooking :) and after burn the calories with a lot of sports 😉💪🏻
Hey there ! I am a french traveler, here in Australia for one year. I am very easy-going people, I love travelling, partying and photographing. I am always keen to discover new places.
HI, i am friendly, optimistic and positive person. i live on simple rule ( live, love, laugh). no negativity only positive vibes.
We're two friends looking for an apartment in the city, so we can stay close to our school. We are friendly, fun, very organized and we like to live in clean homes. My friend is swedish and I'm brazilian. We love to go to the beach, all kind of sports and also to stay home with some friends.
Nice to meet you,here is Federica looking for a -possibly long term-room. Working as Personal trainer,Fitness and Pilates trainer, I'm also studying as Massage Therapist. Life enthusiastic, early morning person, fit & healthy, no smoking or party addicted. Clean and respectful of other's space and privacy. I like animals. *Home should be: a place CLEAN,with a positive respectful atmosphere, where to rest, ocasionally study, where to feel Home, safe . Should look not too chilled out or full of messy stuff everywhere. *Flatmates should be: respectful, mindful of cleaning and noise control if someone is resting (as I do). Preferrably around my age or over and professional, nice to conversate with, share common area, would be nice to share a movie or something. happy to share a chat or go for something outdoor. Ask if you have questions. I'm very easy going, funny and nice
Hi guys ! I'm Tom from Belgium. I'm 24 and I just finished a master's degree in business in June. I freshly arrived in Sydney with my working holiday visa after having travelled the east coast for a month. Now it's time for me to get a job in the city for about three months before travelling the country again :) I'm an easy-going guy, always happy to help when I can and very clean and organized ! I've been living with flatmates these three last years and I love that ! Always happy to share good moments and make dinners together, even if I like enjoying time for myself and have a bit of privacy sometimes :) I like travelling a lot, cooking, hiking and I also like running sometimes ! I plan to run in the city during the week so we can even do that together if you like it ! If you have any available rooms (shared or not but would like to have my own room if possible), don't hesitate to contact me ! If you're also looking for a flat, we could maybe rent a flat together ! That's another option :) Cheers ! Tom.
I am a clean and friendly person and am looking for house that is sociable and friendly.
I have just moved from South Africa to Aus and I'm looking for a house share or someone who wants to team up and start a house share... I'm an Easy going guy, loves cooking and has a sense of OCD cleanliness
Uncomplicated and friendly !
I am 27 and work full-time in the city as a lawyer. I am looking for a quiet place on the weekdays and happy to hang out/chill on the weekends. I am very clean, quiet, a non-smoker and am looking for a long term lease. I like to read, eat and love the outdoors.
hey, there! My name is Tian, an international student from China study at uni about pharmacy now. Outgoing, funny and very friendly! veeery easy going with most of the things and love video games! Love to be surrounded by friends but also need some private time, in cheerleader team now and LOOOOVE it! enjoy sunshine, food and most of the things in life, always being optimistic!but noooot a party animal,especially at home, i love my laptop and study. I will definitely repect your privacy and own space, also hope you can do the same thing. Text me of ANNNNNY questions!
Long term stay
Italian 23 just here from a few days looking for a shared room close to the center.
we are two french friends , we are tidy , we can cook, we like to meet new people with a different culture. we are : luxury car dealer ,and a manager in catering industry.
Hey, my name's Hannah and I'm from the UK. I've just finished a 3 month stint of travelling Asia and New Zealand and I am now coming to Australia to work for a bit (and hopefully do some more travelling!). I like running, cooking and yoga and contrary to popular belief, I'm not that untidy... Ideally I'm looking for somewhere to stay in Sydney for at least a few months whilst working and saving up some money to potentially continue travelling. If you have anything available like this, please let me know :) thanks!
Hello! Looking for another couple/persons to team up for a flat share in the sydney/surry hills area. Ideally someone who has similar values to us (be kind/ don't be a knob ect) A bit about us... Lucie likes her coffee black, wine red and finds her happy place using old bananas to make beautiful bread. Chris likes football (soccer), live music and camping. He is a barista by day and a cocktail guy by night so we both enjoy a gin & tonic or two. We like to go out and socialise, without being super loud party people (really, we love a night in!) We are looking for anyone that wants to share a home thats clean, sociable and easy to live in. We have our hearts set on Surry Hills/ surrounds and have found some cool flats averaging from 300-500 per room. So looking to team up/go for a viewing and be renting before christmas. If you're keen/wanna chat give us a message... (on instagram or fb if you cant on here!)
Easy going individual. Friendly but enjoy my privacy. Interested in work and maintaining a healthy lifestyle
Hi I am from England on a working holiday visa. I am ideally looking for a place near the cbd and I am currently working at Darling Harbour. I love cooking, socializing and exploring new places. I am a clean tidy person and considerate.
Hi guys, I've recently relocated from the States to Sydney for my job for the next several years and am looking for a place to call home as soon as possible. I actually just landed two days ago. It could be short term or long term depending on scenarios. I'm easy going, reliable and enjoy a good laugh. I work for a consulting firm located in the CBD and at times will work long hours. When I'm not working, I'm usually out and about enjoying the city with whoever wants to come! I'm completely fine right now with temporary stays, a week, two or more. It gives me time to get settled and find somewhere short/long term. I'm usually never at home but when I am, I'd relax and hang out but am respectful to peoples personal space. I'm clean, tidy and don't mind at all on pulling my weight on whatever needs done. Thanks for reading and I hope to hear from you! Cheers, Brian
Hey I'm Tracy, I'm 27. A young lady travelling the world, and my next stop will be Sydney for a year. On a working holiday visa, I will be looking for Fun, open-minded, easy going people like me! I hope that my future flatmate will also become my new friends! I'm an airport agent and I hope to find a job in that field there, either Hotel, Airport or Bar if its the only option. I'm kinda of a night bird, but no worries I will respect your sleep, cause I hate when mine is disturb. I hate to cook, I love to fix or build stuff. I strongly dislike disorder, I always try my best to keep everything clean (apart from my closet) I don't mind sharing, but not my room! I need my personal space, that is my only rule. Wanna know more, well, let's see if we can live together! Peace!
Hello everyone! I have recently moved to Sydney for good and looking for a share house in CBD or North Sydney. I am an accountant and work in finance in CBD. I am a liberal and an outgoing person. I enjoy hanging out with friends, love food, cooking and fond of pubs/bars. I enjoy cooking and like to stay fit and workout regularly. Like to spend time chilling out watching movies/netflix when free. I would be up for a good laugh and time with my housemates but I respect personal space and privacy too. I like my place to be clean and organised at an appropriate level. Non smoker I would prefer staying with working professionals. I'm a sociable guy and would be keen to move in with housemates I can be friends with. A dog in the house will be a bonus. I would love to hear from you if you feel I will be a good fit.
Friendly, chatty, easy going - clean, tidy, rugby player
Social, easygoing, full time professional - working in the city during the week. Very clean and respectful.
Hey folks I m an industrial engineer looking for a room in Sydney. I just moved here from Istanbul. I will start full time working in a short while so I need a place to move in immediately. Cheers Mert
Clean and tidy house
Hello! My boyfriend and I would like to find a clean and tidy accomodation in the Sydney. More about us, John is a engineer and I am a Chef. we are professional and works in the Sydney city whole day. we are also sociable and tidy. We are hoping to meet good flatmates and good accomodation from this site.
Hi, I'm looking for a single room to rent for at least 2 months staying. I'm a 25-year-old male who studying in CBD and working part-time near the CBD. I'm a Hongkonger by passport but surely a citizen of the world in outlook, I grew up within mixed background but I mostly speak Cantonese with my family. I've so many interests but especially love doing movies, manga, pool, badminton, Lol. Passionate about global politics and technology, so I don't mind to talk about that if you're keen. I'm a very tidy and clean guy, please don't hesitate to contact me if you have any room available not too far from the CBD and keen to know more about me. ; )
Hi ! I'm a french guy, working in software developpement. I'm here to discover this great city, increase my english level. Enjoy to share a drink, meet new people and live a great experience. See you soon ;)
Hi there, I am looking for accommodation options in Sydney. I've come from the UK but originally from Montreal. It's important for me to live in a clean space despite being quite laid back. I work partly on my own business and part-time in admin type work. Weekdays for me are typically quiet and weekends usually entail a good lay, gluttonous brunch and something outdoors.
About 2months in Sydney I'm looking for share house close to train station, prefer included all bills less than $210/wk I'm friendly tidy mature Japanese female Working holiday maker from Perth. I have 2jobs currently
Hey! I'm Eddie, an 25 year old easy going and happy guy from Sweden. I'm looking for a place to stay at during a few weeks in December and January! Last year I lived in Sydney, for work and internship in marketing. Now I've moved back to Sweden, and I miss Sydney a lot! I won't be at home bothering that much, I'll spend most time visiting my friends or enjoying Sydney summer. I haven't booked my flights yet, but my dates are pretty flexible. I'll stay around December 12th - January 8th. Please let me know if your room is available for a short stay around these dates! Best regards, Eddie
Well my name is Sam I am 23 from England in Grimsby if you've heard of it I have a nBa Business Managementn with Marketing Degree and currently working full time at Hyundai in Macquaries Park. Alice is 21 has a Diploma in Health Care and was previously a carer in England. She's is now currently looking for work And has a few interviews lined up next week. We like exploring Sydney on my days off, cooking, watching films and rather enjoy Australian TV. So we'd love to hear from you. Many Thanks Sam and Alice
I am just arrived in Sdyney, plan to stay for 3 month.
Nice people
We are embarking on a world trip and spending 2 months in Sydney to do a bit of exploring and travelling and would love a space in an apartment with some friendly folk :) Im a Scottish Designer, he's Dutch teacher, we're both pretty easy-going, clean, tidy, social and sporty, please get in touch if you might have a room/apartment for us fr some or all of the 2 months we'll be in Australia! Cheers
I'm a tidy, clean and respectful person.


text:
The Spymasters
Book 7, Men at War
W. E. B. Griffin & William E. Butterworth IV
This book is available for download with iBooks on your Mac or iOS device, and with iTunes on your computer. Books can be read with iBooks on your Mac or iOS device.
#1 Wall Street Journal and New York Times bestselling author W.E.B. Griffin continues his gripping series featuring the legendary OSS—fighting a silent war of spies and assassins in the shadows of World War II.
Summer 1943. Two of the Allies' most important plans for winning World War II are at grave risk—the coming D-Day invasion and the Manhattan Project's race to build the atomic bomb.
OSS spy chief William "Wild Bill" Donovan turns to his top agent, Dick Canidy, and his team. They've certainly got their work cut out for them. In the weeks to come, they must fight not only the enemy in the field—and figure out how to sabotage Germany's new "aerial torpedo" rockets—but also the enemy within.
Someone is feeding Manhattan Project secrets to the Soviets. And if the Soviets build their own atomic bomb, winning the war might only lead to another, even more terrible conflict…
From Publishers Weekly
© Publishers Weekly
Customer Reviews
Mr Griffin aka William E. Butterworth, has a long history of writing books which are riveting and exciting. His last few novels haven't lived up to his usual standards of excitement and interest in the main characters. This problem with this series has been evident since he began collaborating with his son WEB III.
Longing for another book, Soon
Terrific plot, only good writing, wish it was a little longer and had more action other than the final few pages.
As always... A great storyteller.
Other Books in This Series
- The Last Heroes
- 1998
- Soldier Spies
- 2000
- The Saboteurs
- 2006
- $9.99
- Category: Action & Adventure
- Published: Aug 07, 2012
- Publisher: Penguin Publishing Group
- Seller: Penguin Group (USA) Inc.
- Print Length: 464 Pages
- Language: English
- Series: Book 7, Men at War

subset: commoncrawl


text:
The building is available for lease or sell. The building is a G + 6 floors. OC and clear title. It is regd in my company' name. Each floor has 2 units of 1125 sqft ( carpet 960 sqft) each. Total area - 13000 sqft and carpet is 10200 + 1360 terrace. Ideal for hospital, clinic or office space.
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Fully Furnished Commercial Office Space Available on Lease in Andheri West.+
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text:
Boston, Massachusetts 21080
United States
|Areas of Practice
|1) Civil Practice, 2) Appellate Practice, 3) Negligence, 4) Products Liability, 5) Personal Injury, 6) Medical Malpractice, 7) Wrongful Death, 8) Business Litigation, 9) Class Actions, 10) Railroad Law, 11) Maritime Law and 12) Aviation Law
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Personal Injury Attorney
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Catherine Lerer specializes in the representation of seriously injured victims. She is an experienced litigator and trial attorney. She has arbitrated, mediated and tried hundreds of cases and successfully settled more than a thousand cases.
Christina Mesires Fournaris is a partner in Morgan Lewis's Personal Law Practice. Since joining Morgan Lewis in 1991, Ms. Fournaris has been committed to counseling clients on all aspects of estate, tax, and generational wealth planning.


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United States District Court, S.D. New York
April 1, 2004.
UNITED STATES OF AMERICA, -against- DENISE HENRY, Defendant
Defendant moves the Court to dismiss the Indictment pursuant to
Rule 12(b) of the Federal Rules of Criminal Procedure. Defendant has filed
moving papers to which the Government has responded. There has been no
reply, and the Court deems the Motion fully submitted.
On June 4, 1992, Defendant Denise Henry ("Henry") pled guilty in United
States District Court, Southern District of Florida, to the crime of
importation of cocaine in violation of 21 U.S.C. § 952(a) and
960(a)(1). (Gov't Memo, of Law in Oppos., Exh. A at 2.) Henry is a
citizen of Jamaica. (Id., Exh. B.)
During her incarceration, Henry repeatedly sought a hearing from the
Immigration and Naturalization Service ("INS"). The Bureau of Prisons
("BOP") and the INS, Henry alleges, ignored her requests. It was not
until after her release from federal prison sometime in January 1996,
Page 2
she was finally afforded a hearing. (Def. Motion to Dismiss at 3).
Henry was ordered removed at an August 15, 1997 hearing. (Gov't Memo, of
Law in Oppos., Exh. A; Id., Exh. E; Id., Exh. G at 13.) She was
subsequently deported to Jamaica by the INS on February 19, 1999 after
her appeal was denied by the Board of Immigration Appeals on February 23,
1998. (Id., Exh. A at 2; Id., Exh. D.) According to the Government, at no
time has Henry sought the permission of the United States Attorney
General to reenter the country.
Sometime in 2003, Special Agent Sheila Gudino ("Agent Gudino") of the
United States Immigration and Customs Enforcement had begun to
investigate whether Defendant had returned to the United States. (Gov't
Memo. Of Law in Oppos, Exh. A at 2.) Gudino's investigation lead her to
Queens where she found and arrested Henry. (Id.) The Government soon
thereafter obtained a one count Indictment against Defendant, alleging
that Henry had illegally reentered the United States in violation of
8 U.S.C. § 1326(a) and (b)(2).
I. Motion to Dismiss the Indictment
Pursuant to Rule 12(b) of the Federal Rules of Criminal Procedure,
Defendant Henry moves to dismiss the Indictment pursuant to the
Apprendi v. New Jersey, 530 U.S. 466, 120 So.
Page 3
Ct. 1348, 147 L.Ed.2d 435 (2000) and to the Due Process clause of
the Fifth Amendment.
"It is well settled that "an indictment is sufficient if it, first,
contains the elements of the offense charged and fairly informs a
defendant of the charge against which he must defend, and, second,
enables him to plead an acquittal or conviction in bar of future
prosecutions for the same offense.'" United States v. Alfonso,
143 F.3d 772, 776 (2d Cir. 1998)(quoting Hamling v. United
States, 418 U.S. 87, 117, 94 S.Ct. 2887, 2907, 41 L.Ed.2d 590
(1974)). The Indictment "need not set forth factors relevant only to the
sentencing of an offender found guilty of the charged crime."
Almendarez-Torres v. United States, 523 U.S. 224, 228, 118 So.
Ct. 1219, 140 L.Ed.2d 350 (1998). "[D]ismissal of an indictment is
justified to achieve either of two objectives: to eliminate prejudice to
a defendant; or, pursuant to our supervisory power, to prevent
prosecutorial impairment of the grand jury's independent role."
United States v. Wang, 98 Cr. 199 (DAB), 1999 WL 138930 at *34
(S.D.N.Y. March 15, 1999) (citing United States v. Hogan,
712 F.2d 757, 761 (2d Cir. 1983) (citations omitted)).
Page 4
A. Apprendi Claims
The Indictment charges Defendant with illegal reentry under
8 U.S.C. § 1326(a) and (b).*fn1 This statute prescribes different punishment
schemes based in part on whether the illegal reentrant's removal from the
United States was subsequent to a conviction for an aggravated felony. A
conviction under 1326(a) carries a maximum penalty of two years in prison
while a conviction under 1326(b) carries a twenty-year maximum.
Page 5
Defendant argues that the sole count of the Indictment actually charges
her with two separate offenses in violation of Apprendi, which
held that "any fact that increases the penalty for a crime beyond the
prescribed statutory maximum must be submitted to a jury, and proved
beyond a reasonable doubt." Id. at 489, Because the fact of a
prior conviction for an aggregated felony raises the maximum prison term
from two to twenty years, Henry argues that the prior conviction is an
element of 1326(b) (but not of 1326(a)) and must be proven beyond a
reasonable doubt.
The sweeping language, Henry further contends, logically overruled a
prior Supreme Court decision in which the Court held that
8 U.S.C. § 1326(a) and (b) did not require that the fact of prior
convictions be found by a jury beyond a reasonable doubt. In that case, the
Supreme Court held that "Congress intended to set forth a sentencing factor
in subsection (b)(2) and not a separate criminal offense."
Almendarez-Torres, 523 U.S. at 235.
However, the Supreme Court recognized in Apprendi the
continued vitality of Almendarez-Torres, While a majority of
justices now appear willing to reconsider the case's holding,
Almendarez-Torres remains controlling law.*fn2 Thus, a
Page 6
for an aggravated felony prior to deportation need not be alleged
in the indictment or proved beyond a reasonable doubt since it is not an
element of the crime of illegal reentry. United States v.
Mercedes, 287 F.3d 47, 58 (2d Cir. 2002); United States v.
Latorre-Benavides, 241 F.3d 262, 264 (2d Cir. 2001) (per curiam).
Accordingly, the Indictment does not charge two separate crimes, and
Henry's Motion to Dismiss pursuant to Apprendi fails.
B. Due Process Claim
"Although the Supreme Court has not specifically delineated the
procedural safeguards to be accorded aliens in deportation or removal
hearings, it is well settled that the procedures employed must satisfy
due process." United States v. Fernandez-Antonia, 278 F.3d 150,
156 (2d Cir. 2002)(citations omitted). This requires that individuals
charged under § 1326 be permitted in certain circumstances to make a
collateral attack on the validity of the deportation orders that also act
as elements of illegal reentry. United States v. Mendoza-Lopez,
481 U.S. 828, 838-39, 107 S.Ct. 2148, 95 L.Ed.2d 772 (1987)("Depriving
an alien of the right to have the disposition in a deportation hearing
reviewed in
Page 7
a judicial forum requires, at a minimum, that review be made
available in any subsequent proceeding in which the result of the
deportation proceeding is used to establish the element of a criminal
offense."). Congress addressed this need in 8 U.S.C. § 1326(d), which
states in pertinent part:
In a criminal proceeding under this section, an alien may not challenge
the validity of the deportation order described in subsection (a)(1) of
this section or subsection (b) of this section unless the alien
demonstrates that
(1) the alien exhausted any administrative
remedies that may have been available to seek
relief against the order;
(2) the deportation proceedings at which the
order was issued improperly deprived the alien
of the opportunity for judicial review; and
(3) the entry of the order was fundamentally
Due to the BOP's and INS's protracted delay, Henry argues, her due
process rights were violated.
The Government argues that Defendant has not fulfilled the statutory
requirements under 1326(d) to challenge her deportation proceedings. In
its papers, the Government contends that Defendant has not exhausted any
administrative remedies; that the deportation proceedings deprived her of
the opportunity for judicial review; and that the entry of the order was
not fundamentally unfair.
It is clear to the Court from the wording of the statute that if any of
the three of the requirements are not met, Defendant cannot make a
collateral attack under the law. The Second Circuit has recently held
that an individual's failure to petition for a writ of habeas corpus
under 28 U.S.C. § 2241, seeking relief from removal, barred a
collateral attack under 1326(d). United States v.
Gonzalez-Roque, 301 F.3d 39, 49-50 (2d Cir. 2002). The appellate
panel reasoned that the defendant could not demonstrate that he was
improperly denied the opportunity for judicial review, even if
Page 9
IIRIRA itself eliminated direct judicial review since the
"availability of habeas to challenge deportation orders has long been
recognized" by federal courts. Id. at 49-50 (citation omitted).
Accordingly, while Defendant's due process claim has merit,*fn4 she
has failed to make the requisite showing under § 1326(d) that would
entitle her to contest the initial removal order. Her Motion to Dismiss
the Indictment for violations of due process, then, cannot stand and must
be DENIED.
Page 10
Since Almendarez-Torres has not been overruled and since
Defendant did not meet the requirements of § 1326(d) The Court DENIES
Defendant's Motion to Dismiss the Indictment and schedules a new status
conference for May 10, 2004 at 10:30 a.m. In the interests of justice,
the Court excludes time from today until May 10, 2004.
Our website includes the main text of the court's opinion but does not include the
docket number, case citation or footnotes. Upon purchase, docket numbers and/or
citations allow you to research a case further or to use a case in a legal proceeding.
Footnotes (if any) include details of the court's decision.
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text:
|Publication number
|Publication type
|Application number
|Publication date
|Aug 31, 1993
|Filing date
|Mar 14, 1988
|Priority date
|Sep 13, 1985
|Fee status
|Also published as
|Publication number
|Siong I. Wie, Arden A. Kelton
|Original Assignee
|Wie Siong I, Kelton Arden A
|Export Citation
|BiBTeX, EndNote, RefMan
|Patent Citations (4), Non-Patent Citations (2), Referenced by (15), Classifications (20), Legal Events (9)
|External Links: USPTO, USPTO Assignment, Espacenet
This is a continuation-in-part of our copending Application Ser. No. 775,991 filed Sep. 13, 1985, now U.S. Pat. No. 4,900,663.
This invention relates to a colorimetric indicator testing device or card for determining the presence of a specific substance in a liquid medium.
The widespread use of a wide variety of substances in an equally wide variety of environments has made repeated testing for the specific substances necessary in order to control, for example, antibiotic dosages or to determine whether fields which have been treated with various types of organic insecticides are safe for field workers to enter.
Conventional methods of testing entail the drawing or making of a sample of the substance to be tested. For instance, where paraquat is utilized in spraying vegetation, a sample of the vegetation which has been sprayed is taken to the laboratory and a liquid suspension of the paraquat is made which is then subjected to a series of conventional laboratory tests to determine whether the paraquat has been dissipated or whether the amount remaining is so small as to render it safe for workers to enter the paraquat-sprayed field. Naturally, the necessity for remote testing of the specimens of the substance entails consumption of time which delays the harvesting or other necessary treatment of crops.
Similarly, where patients are subjected to large doses of antibiotics, such as neomycin, gentamicin and the like, it is customary to draw blood and to take the blood samples to a hospital laboratory or other laboratories which then make the requisite test necessary to determine the amount of antibiotic present in the blood of the patient. Such remote testing, once again, delays immediate action upon the part of the hospital staff to curb or enlarge the antibiotic dosages as a result of the test indications.
To eliminate the delays incident to conventional testing for various types of organic chemicals, antibiotics and the like, we have developed a portable colorimetric testing device which can be embodied in a card which is no larger than the plastic credit card conventionally carried in most individuals' wallets. By the utilization of this card to detect specific substances, it becomes feasible to perform in situ tests at the immediate location Where the substances are to be sampled.
For instance, in the case of paraquat-treated vegetation, a sample of the paraquat is suspended in a liquid medium and immediately applied to the test card and subjected to the series of steps and test substances which will render an immediate indication of both qualitative and quantitative aspects of the extent to which the paraquat remains upon the vegetation.
Similarly, in hospitals where patients are being subjected to massive antibiotic dosages, the blood of the patient can be drawn in a minute quantity and the blood serum extracted by, for instance, the device of co-pending patent application Ser. No. 06/723,162, issued Sep. 29, 1987, entitled "Suspension Liquid Separator". The serum is then immediately administered to the test port of the card to determine the necessity for reducing or increasing the dosage of the respective antibiotic.
It is, therefore, a primary object of our invention to provide a colorimetric testing device which can be utilized at the test site to determine the presence or absence of a specific substance and which eliminates the necessity for remote laboratory testing for the substance.
Another object of our invention is the provision of a colorimetric testing device cf the aforementioned character which can be incorporated in a relatively small package of the approximate size of a plastic credit card, thus facilitating the utilization of the device, the storage of the test results and the supply of the devices to the test site.
A further object of our invention is the provision of a test card of the aforementioned character which is capable, because of its construction and composition, of providing extremely expeditious indications of the presence or absence of the specific substance being tested for.
An associated object of our invention is the provision of a testing device of the aforementioned character which includes a housing or enclosure constituted by top and bottom walls or sheets which are secured to an intermediate frame member to provide a filter chamber. Located in the filter chamber is a flat elongated filter which can be manufactured from a wide variety of different substances such as glass fiber and which is inert to the specific substance and test liquids being utilzied.
An additional object of our invention is the provision, in a testing device of the aforementioned character, of a test area or portion on the filter body which incorporates a binding substrate having a dense application of antibodies for the particular substance being tested linked thereto. Because of the efficiency of the substrate and the dense application of the antibodies to the substrate, rapid results are achieved by the utilization of the testing device in accordance with the method steps of the invention which are alluded to hereinbelow.
A further object of our invention is the provision in a testing device cf the aforementioned character of a control area or portion on the filter body which is juxtaposed to the test area or portion, said control area incorporating the same binding substrate and antibody as the test area and being located in proximity to a control port which is subjected to certain method steps of the invention to provide a control reading which can be compared with the test reading resulting from the administration of the test sample of the substance at the test port and the subsequent application of various test substances and fluids thereto.
An associated object of the invention is the provision of a method of utilizing the testing device of the invention which includes the step of applying or administering a sample of the specific substance being tested suspended in a liquid medium to the test port of the device. When such application or administration at the test port occurs the sample and its liquid medium are immediately drawn into the test area of the filter body and, if there are any antigens present in the liquid medium being administered, they are almost immediately bound to the antibodies supported on the binding substrate.
After the application of the test sample of the specific substance, the next step of the method involves applying an aqueous solution of enzyme labelled antigen at the test port. This solution immediately displaces the sample solution into the filter material with virtually no mixing of solutions.
The next step of the method involves the administration of a substrate solution which will displace the solution containing uncombined, enzyme labelled antigen. The application of the substrate will provide no color indication at all if the antibodies are saturated with the antigens borne in the test substance. On the other hand, if there are lesser amounts of antigens present in the test substance, slight color development will occur. If no antigens are present, complete color saturation will be experienced.
Additional steps of the method entail the utilization of the control port to provide a colorimetric indication of the saturated level of the enzyme test. The achievement of saturation is accomplished by applying the labelled antigen and the color developing substrate to the control area of the filter through the control port. Since the labelled antigens will saturate the antibodies, full color development will result indicating both the operativeness of the test device or card and the maximum color definition which can be expected and with which the test substance color can be compared to determine both qualitatively and quantitatively the presence or absence of the antigens in the test substance.
Other objects and advantages of the invention will be apparent from the following specification and the accompanying drawings in which:
FIG. 1 is a top plan view of a test card device constructed in accordance with the teachings of our invention;
FIG. 2 is a bottom plan view;
FIG. 3 is an enlarged fragmentary sectional view taken on the broken line 3--3 of FIG. 1; and
FIG. 4 is an exploded view showing the various components of the test card of FIG. 1.
FIG. 5 and 6 are exploded views and a top plan view of two further embodiments of our invention.
Referring to the drawings, we show a colorimetric testing device 10 incorporated in a test card 12 which, as previously mentioned, is approximately the same size as a conventional credit card and of approximately the same bulk. While we show the colorimetric testing device as incorporated, in this embodiment of the invention, in a card, it will, of course, be obvious to those skilled in the art that various embodiments of the invention can be fabricated in different forms without departing from the teachings of the invention.
The test card 12 is of generally rectangular configuration and is constituted by a top sheet 14 fabricated from a synthetic plastic material, such as vinylchloride. Formed in the top sheet 14 adjacent the lower extremity thereof are vent openings 15 which vent the test card in a manner to be described in greater detail below.
The top sheet 14 is adhesively secured to an intermediate frame member 18 which is stamped or otherwise formed from relatively rigid, thin plastic material such as vinylchloride and which incorporates an elongated rectangular opening 20 and has a plurality of fluid isolating or blocking fingers 22 projecting thereinto from the upper portion of the frame member 18.
A bottom sheet 24 of the same material as the top sheet 14 has a pressure-sensitive layer of adhesive 26 upon the upper side thereof and is capable of being secured to the under side of the intermediate frame member 18 thereby.
Located in the elongated rectangular opening 20 of the frame member 18, which serves as the filter chamber of the device 10, is a flat elongated filter body 30, said filter body being formed from compacted glass fibers or the like and incorporating a plurality of upwardly projecting fingers, portions or areas 32 which are insertable in the spaces between the corresponding fingers 22 on the intermediate frame member 18 for a purpose which will be described in greater detail below.
It will be noted that, as best shown in FIG. 1 of the drawings, the vents 15 overlie the lower extremity of the opening 20 constituting the filter chamber and also overlie the lower extremity of the body of the filter 30.
Consequently, as various fluids are deposited al the test sample and control ports, communication of the chamber 20 with the atmosphere facilitates instant separation of the sequentially applied solutions in a manner to be described in greater detail below.
Obviously, the first steps in the manufacture of the test card 12 include the fabrication of the filter body 30 and the intermediate frame member 18, including the projecting fingers 32 on the filter body 30 and the cooperating isolating fingers 22 on the intermediate frame member 18. In addition, the top and bottom sheets 14 and 24 are fabricated and imprinted. The top sheet 14 is provided with the test sample port 40 and the aligned control port 42, legends appearing adjacent said ports to facilitate their utilization.
The filter can be fabricated from a wide variety of filter material and formed from any number of depth-type planar materials capable of entrapping suspension elements or particulates. Exemplary of such a material is glass microfiber material which is available in a range of porosities.
An inherent characteristic of the filter material utilized must be that the filter porosities are interconnected in the plane of the filter. A conventional filter which is capable of entrapping formed suspension elements or particualates, but which is not suitable for the practice of the invention is a planar membrane filter which has porosities connecting its opposite surfaces but offers no pathway for lateral flow generally parallel to and between the surfaces.
In the present construction, the main body of the filter 30 serves to leach or wick liquid from the test and control fingers 32. This insures that subsequent dosages of liquids will be rapidly drawn into the test and control fingers and accomplishes almost immediate operation of the various test liquids applied during the performance of a test on a specific test substance.
In addition, the bottom sheet 24 is imprinted with the legends shown in FIG. 2 to indicate the test results in a permanent manner. Checking the positive box will permanently record the fact that the test was positive; checking the negative box will indicate that the test was negative; and checking the invalid test box will indicate that the test card did not properly operate.
Because of the small size and dimensions of the card, the test results can be readily preserved for permanent record. As indicated in the legends on the bottom sheet 24, when the test sample port B shows no color whatsoever, the test is fully positive. When full coloration is shown at the test sample port B, the test is negative and, as will be explained hereinbelow, when both the test sample port and the control port show no coloration, the test is invalid.
After the imprinting of the top and bottom sheets 14 and 24 in the manner described hereinabove, the reverse sides of the sheets are coated with pressure-sensitive adhesive, as indicated at 16 and 26 of the drawings.
The components of the test kit are assembled prior to the dosing of the test sample and control fingers 32. The filter body is inserted in the opening 20 constituting the filter chamber, and the top and bottom sheets 14 and 24, respectively, are adhesively secured to the perimeter of the frame member 18. After the physical assembly of the test kit 12, the binding substrates are deposited upon the test and control fingers 32 through the test and control ports 40 and 42, respectively. Such binding substrates, of course, must conform to the particular test sample which is the subject of the test.
Typical bacterial binding substrates are Stapehylococcusaureus A and analogous binding bacteria. It is also conceivable that solid substrates, such as microspheroids fabricated from rubber or glass, may be utilized in the filter test and control fingers 32.
It will be noted that additional fingers 32 are provided which, if necessary, can be utilized for ancillary test or control functions.
After the dosing of the fingers 32, which constitute the test and control portions of the filter body 30, the requisite antibodies for the antigen being tested are deposited on the binding substrates of both the test and control fingers and maximum saturation of the binding substrate is achieved.
After the antibodies have been bound on the binding substrate, the test kit 12 is ready for use. Of course, the test kit 12 is appropriately labelled with the name of the test in which it is to be utilized. Consequently, a large number of assembled kits 12 can be maintained in inventory and the substrate antibody combination applied through the test and control ports 40 and 42 when the need for a particular test arises.
It will be noted that the filter body test and control portions, as constituted by the fingers 32, are inserted between the fingers 22 of the intermediate frame member 18, said fingers 22 being impervious to liquid and serving as blocking and isolating means to prevent communication between the test and control fingers 32.
When the top sheet 14 is operatively associated with the frame member 18 and disposed in overlying relationship with the filter body 30, the test and control ports 40 and 42, respectively, are aligned with the bound antibodies on the test and control fingers 32 constituting the test and control portions of the filter body 30.
The antibodies utilized in conjunction with the binding substrate and deposited on the test and control fingers 32 may be purchased from commercial sources for such antibodies oz may be developed by the injection of laboratory animals with selected antigens. In any event, the antibodies must, of course, match with the antigens which are the subject of the test.
For instance, if a test for the presence of paraquat on vegetation is being conducted, the antibodies must be those developed in response to the presence of paraquat antigens.
In making a test for paraquat, a suitable liquid suspension of suspected paraquat residue is administered through the test sample port 40 and, if paraquat antigens are contained in the liquid suspension, they will bind to the antibodies located on the test finger 32.
The antigen will combine with the bound antibody to form a nearly irreversible complex as the test sample wicks through the antibody zone on the test finger 32. The reaction occurs very quickly, within seconds, due to the high concentration of antibody and the sensitivity can be increased by increasing the sample size.
After wicking of the sample is completed, a drop of aqueous solution of enzyme labelled antigen is added to the test port 40. This solution displaces that portion of the test sample liquid which has not been previously displaced by the wicking action into the main body portion of the filter 30. The enzyme labelled antigens bind with any unoccupied antibodies so that the amount of the labelled complex is inversely proportional to the amount of antigen in the test sample.
After the enzyme labelled antigen has been administered through the test port 40, a substrate solution is administered to the test port 40 and displaces that portion of the labelled antigen solution which remains adjacent the port 40. The bound enzyme acts on the substrate to produce a color change which can easily be observed through the test port 40. If no color develops, the indication is that test sample contained sufficient antigen to saturate the antibody.
If complete color development occurs, the indication is that no significant amount of antigen was present in the sample because the labelled antigen has occupied all oz most of the antibody sites.
If an intermediate color change occurs, the indication is that there are antigens present in the sample and the nature of the antigens will determine what decision should be made on the basis of the partial showing of antigens present.
Because of the fact that the lack of color development at the test port is the indication of full saturation of the antibodies by the antigens in the test sample, it is desirable that the control port 42 be accessible to the binding substrate and antibodies present on the control finger 32. This enables the person utilizing the test card to apply the labelled antigen solution at the control port 42. Of course, the labelled antigen will immediately bind with the antibodies and the subsequent application of the color-developing substrate to the control port 42 will result in complete color saturation.
If the antibody labelled antigen combination did not function properly, no colorimetric development would occur indicating that there were defects in the test card 12 which would warrant the discarding of the card 12 and the use of a replacement test card.
Of utmost importance in the functioning of the test kit 12 is the fact that the structure of the card, in its combination of test and control fingers 32 on the large filter body 30 and the vented filter chamber 20, achieves inherent separation of the sequentially applied solutions incorporating, respectively, the test sample, the enzyme labelled antigen and the substrate. The immediate dissipation of the liquid components of the solutions permits the successively applied sample, labelled antigens and developing substrate to function rapidly to produce rapid test results.
In addition, the vents 15 in the top wall 14 materially accelerate the test procedure by establishing atmospheric communication of the lower extremity of the filter body 30 and permitting the successive liquids to flow rapidly downwardly through the filter body 30.
It will be readily apparent to those skilled in the art that the test card and method of using the same of our invention constitute a major advance over the prior art in portability, instantaneous response, built-in control and general utility in a wide variety of applications.
Also of importance is the fact that the density of the antibody applied to the test and control portions of the filter body materially enhances the speed with which the various tests can be performed. Moreover, the presence of the flat filter body and the communication therewith of the test and control portions thereof materially enhances the wicking off of the various solutions applied to the test and control sites, thus materially avoiding the dilution of the various test and other liquids applied during the steps of the method of the invention.
In accordance with another embodiment of the invention, We have discovered that improved results over the card of the type described heretofore are obtained by making certain structural changes in the configuration of the filter body 30 shown in FIGS. 1-4. In FIG. 5, this structural configuration is shown for filter body 30 and it is to be noted that in FIG. 5 the filter body now has the provision Within it of showing at least two sets of projectile fingers 32 leading from the reaction port 40, 42 and 44. This provides so called bi-directional flow of fluids away from the reaction ports. Raised islands 48 separate the reaction sites from one another and vent holes 15 allow proper venting.
Distinct advantages over the uni-directional flow cards indicated in FIGS. 1-4 are obtained. This is due in part to the fact that the fluids can flow now in two directions instead of one, leading to faster wicking. This also enables the use of a smaller hole for the reagent reaction requiring less reagents.
One obtains more flexibility from a card of the present embodiment in that there is a more focused reaction site and the potential of adding a greater volume of liquid material since the wicking action occurs over two reservoirs instead of the one present in the uni-directional flow card. We have found also that there is a subsequent lower background reading when utilizing a bi-directional flow card of the type as shown in FIG. 5.
In some cases it might be desirable to have an added reservoir retention. For example, when several reactions are run on one card of the type shown in FIG. 6, added reservoirs pads 50, may be placed under the filter pad 30 through ports 52 so as to permit the retention of a greater volume of liquid.
The present card also presents more desirable manufacturing economies than the uni-directional flow card since many more tests can be placed on the same card. The card may be hard or soft, of course, as indicated with the uni-directional flow card but with the present embodiment and with the same wicking as is obtained in two ports, it is possible to use six or more ports because the double flow gives rise to a more even distribution of diffused liquid.
Referring now to FIG. 5, it will be observed that filter pad 30 is configured in a way such that projectile fingers 32 are bi-directional with the neck portion thereof being directly under the reaction ports 40, 42 and 44 in top layer 24. It will now be observed that there are two reservoir masses leading from the projectile fingers 32 which communicate with the projectile fingers supplying two separate means to aid in the more rapid wicking of liquid away from the reaction site.
Beneath filter 30 is the plastic template 20 which meets the filter and contains isolation portions 48. These portions separate the reaction chambers in the bi-directional flow mode. If desired, an additional reservoir can be placed intermediate the plastic template and the filter 30 to provide a greater volume of reservoir retention.
Although the above described embodiment in FIG. 5 is a preferred embodiment it is also possible and indeed more preferred under certain circumstances to increase the number of fingers and reaction ports per card to as many as six or more. The mode of operation and the method of preparation is the same for the six as is the two or three shown in FIGS. 4 and 5. For the sake of convenience a diagram has been shown at FIG. 6 of this multi port bi-directional flow embodiment with the operation being self-explanatory.
While We have disclosed the test device as incorporated in a test card, it Will be obvious to those skilled in the art that many different embodiments of the invention can be manufactured without departing from the teachings of the invention or the claims appended hereto.
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|Feb 7, 1997
|May 2, 2000
|Becton, Dickinson And Company
|Quality control procedure for membrane flow-through diagnostic assay devices
|Dec 5, 2001
|Apr 20, 2004
|Lifescan, Inc.
|Test strips having reaction zones and channels defined by a thermally transferred hydrophobic barrier
|Feb 19, 2004
|Aug 19, 2004
|Yeung Siu Yu
|Test strips having a plurality of reaction zones and methods for using and manufacturing the same
|Jul 21, 2005
|Dec 1, 2005
|Rockeby Biomed Corporation, Ltd.
|Method and apparatus for testing for presence or absence of select biological substances
|Jun 5, 2009
|Dec 10, 2009
|Geneva Laboratories, Inc.
|Devices and methods for sampling microbial flora
|Apr 20, 2007
|Dec 10, 2009
|British Pregnancy Adivsory Service
|Device and method for detection of a pregnancy associated hormone
|Apr 20, 2007
|Aug 29, 2012
|Device and method for detection of a pregnancy associated hormone
|Mar 30, 1994
|Oct 13, 1994
|Quidel Corporation
|Multiple assay device
|Apr 20, 2007
|Nov 1, 2007
|British Pregnancy Advisory Service
|Device and method for detection of a pregnancy associated hormone
|U.S. Classification
|435/7.92, 436/809, 436/807, 435/805, 436/514, 436/518, 435/810, 422/562
|International Classification
|Cooperative Classification
|European Classification
|Dec 18, 1989
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Czech Americans are citizens of the United States who were born in, or who descended from, the territory of the historic Czech lands, (consisting of Bohemia, Moravia and Silesia), or succession states, now known as the Czech Republic (however, the descendants of German-speakers from these lands might choose to identity themselves as German Americans). In the 19th century, they were frequently called Bohemians. According to the 2000 US census, there are 1,262,527 Americans of full or partial Czech descent, in addition to 441,403 persons listing their ancestry as Czechoslovak.
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Master's Degree Programs
1001 South Cedar Street
Ottawa, KS 66067
United States
M.A.-Human Resources
Format: Online
# of Credits Required: 36
Average Cost per Credit (Graduate): 495.00
Loans Offered: Loans may be available. Applicants may apply by completing the Federal Application for Free Financial Aid (FAFSA). School FAFSA Code 001937.
Locale: Large City
Size & Settings: 0-999


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May 10, 1937
MITCHELLv.COMMISSIONER OF INTERNAL REVENUE
Appeal from the Board of Tax Appeals
Before SWAN, AUGUSTUS N. HAND, and CHASE, Circuit Judges.
AUGUSTUS N. HAND, Circuit Judge.
This is a petition by Charles E. Mitchell, a taxpayer, to review a decision of the Board of Tax Appeals determining a deficiency of $728,709.84 and a 50 per cent. penalty of $364,354.92 in income taxes for the year 1929.
The questions raised by the petition to review relate to a loss taken by Mitchell and an income item omitted by him in his 1929 income tax return and are the following:
(1) Was an alleged sale by the taxpayer to his wife in 1929 of 18,300 shares of National City Bank at $212 per share a real sale that justified his deduction of a loss of $2,872,305.50 from his gross income in computing taxes?
(2) Was the payment of $666,666.67 by the National City Company which was made to the taxpayer in 1929 from the so-called management fund as compensation for services, but omitted from his return for that year, taxable income?
(3) Was the deduction of $2,872,305.50, or the omission of $666,666.67, due to a fraudulent attempt to evade taxes which justified the 50 per cent. penalty imposed by the Commissioner?
(4) Was the finding of a tax deficiency by the Commissioner on account of the error in dealing with deduction and omission of the above items by the taxpayer precluded by his acquittal under the indictment for fraudulent tax evasion which was based upon those very items?
(5) In any event, could the 50 per cent. penalty properly be imposed where the taxpayer was acquitted under such indictment?
The Commissioner determined the tax deficiency of Mitchell for the year 1929 because of the omission of $666,666.67 from his return, and the inclusion therein of the alleged loss from the sale of 18,300 shares of National City Bank stock to Mrs. Mitchell. The Commissioner surcharged his return with the former item, disallowed the latter, and imposed the 50 per cent. penalty under section 293 (b) of the Revenue Act of 1928, 26 U.S.C.A. § 293 (b) and note, for "fraud with intent to evade tax." The tax deficiency based upon these items and the 50 per cent. penalty which had been assessed by the Commissioner were affirmed by the Board of Tax Appeals. Four members of the Board agreed with the result, but held that the item of $666,666.67, though taxable income, was not shown to have been fraudulently omitted from the return. One member, McMahon, held that the evidence did not establish fraud as to that item or as to the loss taken for the sale to Mrs. Mitchell, and both members McMahon and Smith held that by the decision of the Supreme Court in Coffey v. United States, 116 U.S. 436, 6 S. Ct. 437, 29 L. Ed. 684, the acquittal of Mitchell under the indictment barred a finding of fraud and consequently the determination of the tax deficiency.
It must be borne in mind that our power to review the Board of Tax Appeals is confined to questions of law and that we are bound by its findings of fact in support of which there is any substantial evidence. McCaughn v. Real Estate Co., 297 U.S. 606, 56 S. Ct. 604, 80 L. Ed. 879; General Utilities Co. v. Helvering, 296 U.S. 200, 56 S. Ct. 185, 80 L. Ed. 154; Hulburd v. Commissioner, 296 U.S. 300, 306, 56 S. Ct. 197, 200, 80 L. Ed. 242; Helvering v. Rankin, 295 U.S. 123, 131, 55 S.Ct 732, 736, 79 L. Ed. 1343. We think there can be no doubt that there was substantial evidence before the Board that the item of $666,666.67 was income of the taxpayer, that the loss incurred through the alleged sale to Mrs. Mitchell was not a genuine loss, and that the omission of the first item and the deduction of the loss were fraudulent attempts to evade taxes.
There was ample evidence that the sale of 18,300 shares of stock to Mrs. Mitchell did not represent a genuine transaction. It was prompted by the realization by Mitchell during that year of an income from which some loss had to be deducted if the payment of a huge tax was to be avoided. Mrs. Mitchell's assets aside from chattels and the cash value of certain insurance policies on the life of her husband amounted to $940,994.12, of which only $32,027.80 was cash. Yet Mitchell purported to sell to her 18,300 shares of bank stock at $212 a share, aggregating a total obligation to him on her part of $3,879,600. His offer to sell was evidenced by a letter on December 20, 1929, in which he stated that the shares were at present carried in a loan with J. P. Morgan & Co. for his account and that for her convenience he would arrange so to continue the carriage of the stock subject to her payment of the amount due, "the debt in any event to be liquidated by you within nine months from the date hereof." The same day she wrote confirming the purchase and authorizing him to sell the shares whenever it seemed proper at not less than $220 per share. No notification of the transaction was then given to J. P. Morgan & Co., nor was any arrangement made with them to withdraw the stock from the collateral loan at $212 per share, though Mitchell's counsel had advised him that such an arrangement ought to be made. The same day he notified Taff & Co., in whose name the certificates were registered, that dividends received from the stock subsequent to January 2, 1930, were to be paid to Mrs. Mitchell. No payments on account of the purchase price of the stock were ever made. Certain so-called "interest payments" were made by Mrs. Mitchell to the taxpayer out of her bank account. These interest payments were in excess of the dividends received from the stock by $258,267.69. In order to make them without depleting her personal estate, she received from her husband between December 20, 1929, and December 31, 1932, various large sums of money purporting to be birthday, wedding anniversary, and other gifts. The illusory nature of a purchase in a case where the seller furnishes the money to meet interest on the purchase price is manifest. The purchase of the stock by Mrs. Mitchell as an investment at a contract price of $3,879,600, payable within nine months and with no means to meet the obligation, is in itself highly improbable, if not fantastic. The transaction is much more explicable as an ostensible, even if fraudulent, means of registering a deductible loss than as a way of making an investment. In January, 1932, at the annual stockholders' meeting of the National City Bank, Mitchell was asked by a stockholder whether he had disposed of any of his stock and replied: "Not a single share, sir. As a matter of fact I am buying all I can possibly get and that I can possibly pay for." Later, on March 5, 1932, he forwarded to the National City Company a letter from his counsel advising that in their opinion that company was under obligation to take up from the Morgan loan "at their net present cost" the 18,300 shares of stock that he was carrying in order to relieve him from the loss he had already incurred in making a market for stock of the National City Bank. No suggestion was made in the letter that the 18,300 shares of stock had theretofore been sold to Mrs. Mitchell. The letter was presented to the board of directors of the company who conferred about Mitchell's claim and secured an opinion from John W. Davis, Esq., that it had no legal basis. On March 24, by another exchange of letters, Mrs. Mitchell purported to resell the 18,300 shares of stock to her husband at the original purchase price of $212 a share, although the then market price was $45 a share and Mitchell was insolvent to the amount of $3,000,000. Just as in the transaction of December 20, 1929, no cash passed between Mitchell and his wife. Under the letters exchanged on March 24, 1932, Mrs. Mitchell was released from any further obligation in connection with the transaction. Thus we find an arrangement having no practical object other than to escape income taxes -- an arrangement whereby a husband purports to sell stock to his wife without obtaining either note, security, or cash payment, and finally purports to buy it back at a time when he is seeking to have his company relieve him from the Morgan collateral loan. Under the circumstances, it may be reasonably supposed that he assumed to buy back the stock so as to have unquestionable title if the National City Company should prove willing to take up the shares. Both in case of the alleged sale and repurchase Mitchell made the initial offer to his wife and throughout the transactions treated the stock as essentially his own. It should also be noted that at the time of the alleged sale to Mrs. Mitchell on December 20, 1929, no internal revenue or state transfer stamps were attached to the contract of sale, no bill of sale was ever executed, nor were the certificates of stock ever out of the possession of J. P. Morgan & Co., by whom they were continuously held as collateral for Mitchell's indebtedness.
It is clear that there was substantial evidence in support of the finding by the Board of Tax Appeals that "the transaction was not a bona fide sale and the alleged loss did not constitute an allowable deduction from income" and that "the alleged sale was fraudulent with intent to evade tax." Record, p. 92.
There also was sufficient evidence to support the finding of the Board that the failure of the taxpayer to report the payment of $666,666.67 from the management fund in 1929 was fraudulent.
The management fund was created by resolution of the directors of the National City Company, an affiliate of the bank, on February 8, 1921, as a means for providing additional compensation for its officers. The fund was derived from a certain percentage of the net operating income which under resolutions adopted in 1927 was set up each month and was distributable by the executive committee at the end of the year, or from time to time during the year. Distributions were made semiannually from the time of the creation of the fund in 1921 until the distribution of $666,666.67 in question on July 1, 1929. There seems to be ample justification for holding that the payment of $666,666.67 on July 1, 1929, became an irrevocable appropriation of moneys at the time when it was made, although future payments were within the control of the executive committee. The company incurred such losses during the last three months of 1929 that there were no net earnings for the year as a whole. Under these circumstances, the question whether there was a right to retain the distributions of July 1 is said to have been investigated, and as a result receipts were prepared and signed by Mitchell and the other distributees, acknowledging that the distributions of July 1, 1929, were overpayments and agreeing that they were to be repaid from future additions to the management fund "before I become entitled to any further payments therefrom." On December 30 the board of trustees adopted a resolution to that effect. Because of the contingent obligation created by the receipt, Mitchell contends that he was justified in omitting the item of $666,666.67 from his income tax return, and he fortifies his position by proof that counsel advised him that the item did not have to be returned. We can imagine no legal ground for saying that it was not taxable income. In respect to the claim of justification because of the advice of counsel, it is to be remembered that it was Mitchell who suggested that the right to retain the $666,666.67 should be looked into, recommended that the distributions should only be treated as advances of future accumulations of the management fund and, on December 30, 1929, presented that plan to the directors who adopted it. We cannot see that he was ever obliged to repay the $666,666.67, nor is it shown that he ever attempted to repay it. In no event was it to be repaid except from shares in the management fund, if any, which he might be entitled to receive after 1929. Such a contingent obligation amounted to nothing. The disposal of the management fund was at all times wholly within the control of the executive committee who could appropriate or withhold distributions as they saw fit. Under such circumstances there is every reason to suppose that the purpose of Mitchell was to retain the $666,666.67 without returning it as income. His theory that his contingent obligation offset his receipt of income has such little plausibility that it is hard to believe that an able man of large experience like Mitchell could entertain an honest belief in it. In any event the finding of the Board that the transaction was fraudulent does not lack substantial support in the evidence.
It is argued for the petitioner that all of the acts involved in the present proceeding were determined against the government when he was acquitted in the criminal prosecution against him under section 146 (b) of the Revenue Act of 1928, 26 U.S.C.A. § 145 (b) and note of the charge in the indictment that he "unlawfully, wilfully, knowingly, feloniously and fraudulently did attempt to defeat and evade an income tax. * * *"
Section 146 (b), Revenue Act of 1928, provides that: "Any person required under this title [chapter] to collect, account for, and pay over any tax imposed by this title, * * * who willfully attempts in any manner to evade or defeat any tax imposed by this title or the payment thereof, shall, in addition to other penalties provided by law, be guilty of a felony and, upon conviction thereof, be fined not more than $10,000, or imprisoned for not more than five years, or both, together with the costs of prosecution."
In United States v. Scharton, 285 U.S. 518, 52 S. Ct. 416, 417, 76 L. Ed. 917, where there was an indictment under a similar section of the revenue laws, the question was whether the three or the six year statute of limitations which then barred prosecutions should be applied. The three-year statute was general in terms and the six-year statute (18 U.S.C.A. § 585) an exception limited to "offenses involving the defrauding or attempting to defraud the United States or any agency thereof." On demurrer to the indictment in which the defendant was charged with a willful attempt to evade taxes by falsely understating taxable income, the Supreme Court held that the three-year, and not the six-year, statute applied. Roberts, J., who wrote the opinion, said that under the section governing the charge an averment of fraud "would be surplusage, for it would be sufficient to plead and prove a willful attempt to evade or defeat." IF Mitchell, when indicted under section 146 (b), had been convicted, his conviction would not have been res judicata as to fraud in the case at bar because proof of fraud would not have been necessary to establish the criminal offense denounced by the statute. United States v. Scharton, 285 U.S. 518, 52 S. Ct. 416, 76 L. Ed. 917. But the acquittal of Mitchell under the indictment founded on section 146 (b) necessarily involved a finding that he was guilty of no fraud, since a fraudulent intent "to evade or defeat" a tax would necessarily involve the willful attempt to "evade or defeat" broadly covered by section 146 (b).
From the indictment and the charge of the court in the criminal prosecution it is clear that the government relied on the same facts as it relies on in the case at bar to establish fraud.*fn1
The doctrine of res judicata is plainly inapplicable to the portion of the tax other than the 50 per cent. so-called penalty. The acquittal in the criminal case only determined that Mitchell had not been proved guilty beyond a reasonable doubt of the criminal acts charged in the indictment. It plainly did not preclude the Commissioner from asserting a tax deficiency against him. Murphy v. United States, 272 U.S. 630, 632, 47 S. Ct. 218, 71 L. Ed. 446; Lewis v. Frick, 233 U.S. 291, 302, 34 S. Ct. 488, 58 L. Ed. 967; Chantangco v. Abaroa, 218 U.S. 476, 481, 31 S. Ct. 34, 54 L. Ed. 1116; Stone v. United States, 167 U.S. 178, 186-189, 17 S. Ct. 778, 782, 42 L. Ed. 127. In the last case, after an indictment and acquittal in the federal court upon a charge of unlawfully cutting and removing timber from public lands, Stone was sued by the United States for the value of the timber removed. In the suit the prior judgment of acquittal was pleaded in bar, Stone relying upon the decision of the Supreme Court in Coffey v. United States, 116 U.S. 436, 6 S. Ct. 437, 29 L. Ed. 684. The Supreme Court, in an opinion by Harlan, J., held that the decision in Coffey v. United States did not apply to a situation where there had been an acquittal upon a criminal charge followed by a civil action requiring a different degree of proof, and said:
"In the criminal case his acquittal may have been due to the fact that the government failed to show beyond a reasonable doubt the existence of some fact essential to establish the offense charged, while the same evidence in a civil action brought to recover the value of the property illegally converted might have been sufficient to entitle the government to a verdict. * * * It cannot be said that any fact was conclusively established in the criminal case, except that the defendant was not guilty of the public offense with which he was charged. We cannot agree that the failure or inability of the United States to prove in the criminal case that the defendant had been guilty of a crime either forfeited its right of property in the timber, or its right in this civil action, upon a preponderance of proof, to recover the value of such property." See, also, United States v. Donaldson-Shultz Co., 148 F. 581 (C.C.A. 4).
But the petitioner claims that under Coffey v. United States, 116 U.S. 436, 6 S. Ct. 437, 29 L. Ed. 684, his acquittal precludes the assessment of deficiency even of the normal tax without the 50 per cent. penalty. Any inference to that effect that might originally have existed has, we think, been eliminated by the later Supreme Court decisions already cited. The only rule necessarily derivable from Coffey v. United States would seem to be that an acquittal in a criminal prosecution is a bar to a civil action to enforce fines or forfeitures of property which are in their nature criminal penalties. Though this rule seems hard to justify in view of the different degrees of proof required in order to establish criminal guilt and civil responsibility,*fn2 it is implicit in the decision of Coffey v. United States which is binding on us in the absence of a modification by the Supreme Court.
The question is whether the 50 per cent. additional tax was designed to punish fraudulent tax dodgers or was a mere preventive measure. An order padlocking a building as a nuisance under the National Prohibition Act (27 U.S.C.A. § 1 et seq.) was held in Murphy v. United States, 272 U.S. 630, 47 S. Ct. 218, 71 L. Ed. 446, to have been made to enforce a statutory preventive measure, and not a penalty. But in United States v. La Franca, 282 U.S. 568, 51 S. Ct. 278, 280, 75 L. Ed. 551, it was said that the imposition of a tax "in double the amount" provided by law "upon evidence of an illegal sale" of liquor under the act was a penalty and could not be "converted into a tax by the simple expedient of calling it such." Murphy v. United States was distinguished on the ground that the tax levied in United States v. La Franca in double the amount was a penalty.
We think that the decisions in Coffey v. United States, 116 U.S. 436, 6 S. Ct. 437, 29 L. Ed. 684, and United States v. La Franca, 282 U.S. 568, 51 S. Ct. 278, 75 L. Ed. 551, require us to treat the imposition of the penalty of 50 per cent. as barred by the prior acquittal of Mitchell in the crimmal action.
The order of the Board of Tax Appeals is accordingly modified so as to eliminate the penalty of $364,354.92 for the year 1929 and in other respects is affirmed.
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