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decided: March 30, 1987.
ANNA M. PELTON, ET AL., PETITIONERS/APPELLEES,v.COMMONWEALTH OF PENNSYLVANIA, DEPARTMENT OF PUBLIC WELFARE, RESPONDENT/APPELLANT
On appeal from the Commonwealth Court of Pennsylvania entered December 13, 1985, at No. 857 1981.
Nix, C.j., and Larsen, Flaherty, McDermott, Hutchinson, Zappala and Papadakos, JJ. Larsen, J., filed a dissenting opinion.
[ 514 Pa. Page 325]
Opinion OF THE COURT
The issue in this case is whether welfare recipients who are gainfully employed or engaged in training programs are eligible to receive a one-time grant to repair and/or purchase an automobile as authorized by a regulation promulgated by the Department of Public Welfare (hereinafter DPW) at 55 Pa.Code § 175.23(c)(2)(iv). The regulation provides:
(2) Nonrecurring one-time grant. A Nonrecurring one-time grant may be authorized for an allowance to meet
[ 514 Pa. Page 326]
the actual minimum cost, subject to the specified maximum allowances, for any of the following items provided an individual shows that these items are needed in order to apply for or to accept employment or training which will result in decreasing or preventing his need for assistance. The individual must provide proof that he has an offer of a job, referral to a job or training program, or that he has been scheduled for admission to an examination, such as a Civil Service test or high school equivalency test. The eligible items are as follows:
(iv) only the actual cost of repairs on the automobile of the client, not applying to WIN, the actual cost of an automobile, a down payment on an automobile, subject to a maximum of $200 plus the cost of state inspection fee, automobile license plates, and driver's license if there is no other means of transportation to a job or training or the job requires the use of an automobile.
55 Pa.Code § 175.23(c)(2)(iv) (Emphasis added). A plain reading of this regulation is that eligibility is limited to persons who are in the process of applying for or accepting employment or training. The question raised in this appeal is whether the exclusion from eligibility of those persons who are already employed or in training is legally permissible.
This case arose when Anna M. Pelton and Nancy Boudman, both of whom received partial benefits from the DPW through the Aid to Families with Dependent Children program (AFDC), 42 U.S.C. § 601, applied for the one-time grant. Both were employed at the time of their application and both applied for the grant to fix cars which had broken down. The Clinton County Board of Assistance determined that Pelton and Boudman were ineligible for the one-time grant because they were already employed at the time of the application. After fair hearings were conducted, DPW affirmed the Board's decision in these cases.
Pelton and Boudman then took an appeal to Commonwealth Court seeking both declaratory judgment and injunctive
[ 514 Pa. Page 327]
relief. DPW petitioned for removal of the case to the United States District Court for the Middle District of Pennsylvania for consideration of the federal aspects of the case, and the petition was granted. By stipulation of the parties, the federal court then granted Pelton and Boudman's motion for class certification. On November 1, 1983 the District Court entered a Memorandum Opinion and Order in which it ruled that DPW's regulation and its interpretation of the regulation does not violate federal law.
On November 15, 1984, the District Court entered an order in which it purported to remand*fn1 issues concerning state law to Commonwealth Court, and almost a year later, on November 13, 1985 the District Court entered judgment in favor of DPW on remaining federal issues. Commonwealth Court treated the individual complaints as addressed to its appellate jurisdiction and the class action as addressed to its original jurisdiction, and on October 8, 1985 that court entered an order granting Pelton and Boudman's motion for summary judgment and denying DPW's cross-motion for summary judgment.
On April 14, 1986 this Court granted allocatur as to the individual petitions and consolidated that appeal with the class action aspects of the case. We also deferred action on a motion filed by Pelton et al. to quash the appeal of the class action.
Pelton and Boudman appealed the federal case to the United States Court of Appeals for the Third Circuit. Oral argument before the Third Circuit was conducted on June 18, 1986, and the Circuit Court subsequently indicated that the case would be held under advisement until this Court renders its decision on the state issues.
[ 514 Pa. Page 328]
language and that Commonwealth Court acted beyond its authority in utilizing Section 401 of the Public Welfare Code, Act of June 13, 1967, P.L. 31, No. 21, art. 4, § 401, to conclude that DPW's regulation violates the legislative intent of the Code. Next, DPW asserts that it was error for Commonwealth Court to grant summary judgment when there were disputed material facts in the case. Finally, at issue is whether the Commonwealth may take a direct appeal of the class action aspects of their case or whether that direct appeal should be quashed on the grounds that it should have been an appeal by allowance. If the class action case is regarded as having been filed in Commonwealth Court's original jurisdiction, there is a direct appeal to this court as of right; however, if the class action case was addressed to Commonwealth Court's appellate jurisdiction, there is appeal to this Court only by allowance.
First, we address the direct appeal issue. Since the substantive issues raised in the class action appeal are identical to those raised in the individual appeals, the same issues will be adjudicated in both cases. Furthermore, in a declaratory judgment action, the same remedies would be provided in both cases. The class action appeal is, therefore, superfluous, and we grant the motion to quash on the grounds that the appealability of the class action is moot.
As to the substantive issues in the case, we are governed by the standard of review to be applied by courts reviewing the validity of an agency's interpretation of its own regulations in Commonwealth v. Forbes Health System, 492 Pa. 77, 422 A.2d 480 (1980):
In reviewing an administrative agency's interpretation of its own regulations, courts are governed by a two step analysis. First, "[i]n construing administrative regulations, 'the ultimate criterion is the administrative interpretation, which becomes of controlling weight unless it is plainly erroneous or inconsistent with the regulation.'" United States v. Larionoff, 431 U.S. 864, 872, 97 S.Ct. 2150, 2155, 53 L.Ed.2d 48 (1977) quoting Bowles v. Seminole Rock Co., 325 U.S. 410, 414, 65 S.Ct. 1215, 1217, 89
[ 514 Pa. Page 330]
L.Ed. 1700 (1945). Second, the regulations "must be consistent with the statute under which they are promulgated." Id. at 873, 97 S.Ct. at 2156. See also Commonwealth v. Beck Electric Construction, Inc., 485 Pa. 604, 403 A.2d 553 (1979).
Id., 492 Pa. at 81, 422 A.2d at 482. In short, the reviewing court's inquiry is (1) whether the agency's interpretation is consistent with the regulation and (2) whether the regulation is consistent with the statute under which it is promulgated.
Commonwealth Court relies on language of Section 401 of the Code, 62 P.S. § 401, which states "that assistance shall be administered in such a way and manner as to encourage self-respect, self-dependency and the desire to be a good citizen and useful to society," and language from the regulation itself concerning the goal of "decreasing or preventing [the applicant's] need for assistance," but it ignores Section 403, which provides:
The department shall establish rules, regulations, and standards, consistent with law, as to eligibility for assistance and as to its nature and extent. . . . The Secretary or his designee in writing is the only person authorized to . . . interpret or make specific the law administered by the Department.
62 P.S. § 403 (Emphasis added). These provisions, taken together, indicate that it is the purpose of the enabling statute and of the regulations to encourage self-dependence of welfare recipients, that great deference is to be afforded the Secretary in his implementation of this purpose, and in fact, that it is the secretary alone who is authorized to establish and interpret rules, regulations and standards for eligibility.
In applying these principles to the decision of Commonwealth Court, we must examine, first, whether Commonwealth Court's review was carried out in accord with the standards set out in Forbes Health System, supra., i.e., to determine whether the agency's interpretation of its regulation was consistent with the regulation itself, and
[ 514 Pa. Page 331]
then whether the regulation is consistent with the enabling statute. It is clear that the agency's interpretation of its regulation is consistent with the regulation itself.*fn2 The regulation denies eligibility to anyone currently employed or engaged in training, and that is also what the agency interpreted the regulation to mean.*fn3 We need address
[ 514 Pa. Page 332]
ourselves, then, only to the second concern, whether the regulation is consistent with the enabling statute.
In holding that the regulation is not consistent with the legislative intent of the enabling statute, Commonwealth Court ignored all indications of legislative intent save the intent to encourage self-dependency and then, forgetting about the clear mandate that the Secretary alone is to determine eligibility, proceeded, as if it were the agency, to devise ways to implement this legislative purpose. By expressing its views as to the best way to implement a general purpose section of the statute, Commonwealth Court, in effect, substituted its wisdom for that of the agency. It fastened onto the general language of Section 401 ("self-dependency") and of the regulation ("apply for or accept employment or training which will result in decreasing or preventing his need for assistance") and treated this language as mandating the promulgation and enforcement of a particular regulation, i.e., one which provides one-time grants both to those already employed and/or in training and also to those applying for employment or training.
In general, a court reviewing an agency's interpretation of its regulations may not determine whether the regulations fall within the scope of the enabling legislation solely by reference to the general purpose statement of the enabling statute. The reason for this is that statements of general purpose are so broad as to allow for many possible routes of implementation, not a single required route. Normally, it is the agency, not the reviewing court, which will most benefit and take its guidance from the purpose section of the enabling statute, for it is the agency's function, not the reviewing court's, to decide which of many possible approaches best implement the legislative intent of the act. Commonwealth Court's proper role, as we stated in Forbes Health System, supra, is to ensure that the agency's decisions are made within the parameters of the law, not to narrow those parameters or to substitute its wisdom for the agency's in implementing the legislative purpose.
[ 514 Pa. Page 333]
Commonwealth Court's error with respect to deciding whether the regulation is consistent with the enabling statute, in sum, is that it usurped the agency's policy making role by substituting its wisdom for that of the agency rather than decide, by reference to the enabling statute as a whole, not merely the statement-of-purpose section, whether the regulation was consistent with the statute.
If the propriety of Commonwealth Court's decision were all that is raised in the case, our decision would be to reverse the lower court's order and enter summary judgment for the department. However, Pelton and Boudman raise two other matters not addressed by the lower court which require our attention. First, Pelton argues that because the General Assembly substantially revised the Public Welfare Code in 1982, but did not change Section 401, concerning legislative intent, it adopted the interpretation of Commonwealth Court in the Rodgers, Chase, and Bittner decisions, supra, which invalidated the DPW regulation at issue in this case as to its eligibility distinction between persons employed and unemployed, and between those in training and not in training. The basis for this argument is Section 1922 of the Statutory Construction Act, which in pertinent part provides:
In ascertaining the intention of the General Assembly in the enactment of a statute the following presumptions, among others, may be used:
(4) That when a court of last resort has construed the language used in a statute, the General Assembly in subsequent statutes on the same subject matter intends the same construction to be placed upon such language.
1 Pa.C.S.A. § 1922. Further, Pelton argues that the Commonwealth Court decisions referred to above are, for the purposes of this act, the decisions of a court of last resort. In Estate of Lock this Court stated:
It has been held, and rightly so, that where a decision of the Superior Court construing a statute was never modified by the Supreme Court, the presumption was that
[ 514 Pa. Page 334]
when the legislature subsequently enacted a similar statute dealing with the same subject matter, the legislature intended the same construction to be placed on the language of the subsequent statute.
431 Pa. 251, 263, 244 A.2d 677, 682-83 (1968).
Inasmuch as Section 1922(4) of the statutory construction act concerns the resolution of ambiguities of meaning of particular words and phrases in a statute, and in this case there is no ambiguity to resolve, Pelton and Boudman's argument is without merit. At issue here is not the meaning of "self-dependency," but rather who shall determine, the Commonwealth Court or DPW, the extent to which persons in certain classifications shall be given a particular type of aid. This is a policy matter, not primarily a matter of definition. The claim, therefore, is denied.*fn4
Next, Pelton and Boudman assert that eligibility for one-time special need grants must be determined on an individual basis. Further, according to Pelton and Boudman, "where an agency attempts to exclude an entire category of persons from eligibility without individualized determination, such classifications will be subjected to close scrutiny."
Pelton and Boudman's argument is derived mainly from federal cases such as Medora v. Colautti, 602 F.2d 1149 (3d Cir. 1979). In Medora, DPW had promulgated a regulation in which it required blind, disabled and aged persons to apply for federal Supplemental Security Income benefits before they applied for state general assistance benefits. The regulation also stated that if any member of this class of persons were denied federal benefits for any reason not related to their blindness, age or disability (e.g., federal
[ 514 Pa. Page 335]
regulations which deny SSI benefits to those whose financial reserves exceed a certain amount, or those living with person of the opposite sex not their spouses who have an income), that federally disqualified person could not then apply for state benefits, even if he would be eligible for state benefits under state criteria. The Circuit Court held that this regulation violated the Equal Protection Clause of the United States Constitution in that it did not rationally further any legitimate government objectives. The Court also noted that although a traditional equal protection analysis requires an inquiry into whether the challenged classification is rationally related to a legitimate governmental interest, Id. at 1152, in a case where all benefits are denied, "rather than allocation of amounts of aid," Id. at 1154, and where the classification is based on the applicants' status as blind, aged or disabled persons (sensitive but non-suspect classes), Id, at 1154, n. 12, the rationality of the classification will be more closely examined.
In the present case, unlike Medora, Pelton and Boudman have not been denied all benefits; rather, they have been denied more benefits than they would like. Furthermore, the present case involves no sensitive classifications. The appropriate equal protection analysis for this classification, therefore, is the traditional one of whether the challenged classification is rationally related to a legitimate governmental interest. See James v. Southeastern Pennsylvania Transportation Authority, 505 Pa. 137, 477 A.2d 1302 (1984) (the applicability of various equal protection analyses); U.S. Department of Agriculture v. Moreno, 413 U.S. 528, 93 S.Ct. 2821, 37 L.Ed.2d 782 (1973) (the rational basis test applied to regulations denying food stamps to certain persons).
DPW asserts that it distinguishes between aid recipients who are employed and already involved in training, and those who are not employed or involved in training as to their eligibility for the one-time grants because persons already employed and already involved in training are less needy than persons who are unemployed and untrained. In
[ 514 Pa. Page 336]
other words, DPW asserts that it has a rational basis for distinguishing between those currently employed and involved in training and those who are not either employed or in training. Further, it asserts that a major part of its job is to identify those who are in need and those who are not as well as their relative degree of neediness. See 62 P.S. §§ 403, 432. Commonwealth Court rejected this argument on the grounds that DPW did not provide an adequate record on which to determine whether those who are already employed and/or in training have adequate resources without the one-time grant.
The standard for determining when a legislative classification regarding non-contractual social welfare benefits is constitutionally sound was recited by the Supreme Court of the United States in Weinberger v. Salfi, 422 U.S. 749, 95 S.Ct. 2457, 45 L.Ed.2d 522 (1974), as follows:
[T]he question raised is not whether a statutory provision precisely filters out those, and only those who are in the factual position which generated the congressional concern reflected in the statute. Such a rule would ban all prophylactic provisions . . . . Nor is the question whether the provision filters out a substantial part of the class which caused congressional concern, or whether it filters out more members of the class than nonmembers. The question is whether Congress, its concern having been reasonably aroused by the possibility of an abuse which it legitimately desired to avoid, could rationally have concluded both that a particular limitation or qualification would protect against its occurrence, and that the expense and other difficulties of individual determinations justified the inherent imprecision of a prophylactic rule.
See also Department of Welfare v. Molyneaux, 498 Pa. 192, 200, 445 A.2d 730, 734 (1982).
In sum, while prophylactic social welfare classifications may not be made "on the basis of criteria which bear no rational relation to a legitimate legislative goal," Weinberger v. Salfi, 422 U.S. at 772, 95 S.Ct. at 2470, 45 L.Ed.2d at 542, failure to receive such benefits does not involve the
[ 514 Pa. Page 337]
curtailment of important Constitutional liberties, and individualized determinations need not be made with respect to eligibility for social welfare benefits "when Congress can rationally conclude not only that generalized rules are appropriate to its purposes and concerns, but also that the difficulties of individual determinations outweigh the marginal increments in the precise effectuation of congressional concern which they might be expected to produce." Id. at 785, 95 S.Ct. at 2476, 45 L.Ed.2d at 550.
In the present case, the General assembly has delegated rulemaking authority to the agency. The agency, in turn, has promulgated rules as to the eligibility for one-time grants which are rationally constructed to award limited governmental funds to persons most in need. Since there is a rational basis for the classification which promotes a legitimate governmental purpose, and since it is self-evident that individual determinations would be expensive and burdensome, the classification is not constitutionally infirm.
For the foregoing reasons, the order of Commonwealth Court is reversed and summary judgment is entered for DPW on the Boudman case. With respect to Ms. Pelton's appeal, the order of Commonwealth Court is reversed and vacated and the matter is remanded for proceedings consistent with footnote 2, supra. The motion to quash the direct appeal of the class action is granted because issues identical to those raised in the class action are raised and adjudicated in the individual cases. This identity of issues, in a declaratory judgment case, renders the class action superfluous and issue of its appealability moot.
For the foregoing reasons, the order of Commonwealth Court is reversed and summary judgment is entered for DPW on the Boudman case. With respect to Ms. Pelton's appeal, the order of Commonwealth Court is reversed and vacated and the matter is remanded for proceedings consistent with footnote 2, supra. The motion to quash the direct appeal of the class action is granted because issues identical to those raised in the class action are raised and adjudicated in the individual cases. This identity of issues, in a declaratory judgment case, renders the class action superfluous and issue of the its appealability moot.
LARSEN, Justice, dissenting.
I dissent.
Not only do I find appellant Department of Public Welfare's (DPW) deliberate choice to ignore the rulings of Commonwealth Court to be contemptible, that choice is morally reprehensible as well. There will never be a way to
[ 514 Pa. Page 338]
determine exactly how many good citizens of this Commonwealth were unable to regain the dignity of a useful and productive life during the economic crisis of this decade because of appellant's begrudging and distorted interpretation of the special needs regulation. In this regard, I adopt the decision in this case of Judge MacPhail as my own. Pelton v. Commonwealth, Department of Public Welfare, 92 Pa. Commw. 181, 498 A.2d 1380 (1985).
A working automobile, protective clothing, uniforms and tools are just as critical to those collecting public assistance who are already employed or in training as are such items to those readying themselves for a new job or training program where the household budget cannot accommodate these expenses. The majority's holding today will ensure that the Anna Peltons and Nancy Boudmans of this Commonwealth will be forced to lose their jobs or drop out of training and then again search for employment or apply for another training program before appellant will advance the funds to repair worn-out vehicles.*fn1 I seriously doubt that the enabling legislation contemplates such a result.
Furthermore, I note that appellant also filed for summary judgment in this case and find its request to remand for purposes of the introduction of more evidence to be incomprehensible. Appellant on the one hand argues that persons in the position of appellees can afford to repair their cars, pointing to documents of record which allegedly prove its point; yet, on the other hand, appellant argues that it needs a trial to prove that those who are employed and/or in training are less needy than those who are unemployed and not in training. The majority agrees with this position and states that a remand is necessary to adjudicate the
[ 514 Pa. Page 339]
equal protection challenge to appellant's classification of eligible recipients of the one-time special needs grants. Maj. op. at 334-335. Inasmuch as it took this case six years to reach us in its present posture, I expect that the equal protection argument will be made before this body in the early 1990s. I cannot imagine that Anna Pelton's or Nancy Boudman's cars will be amenable to any rehabilitation at that late date.
Without transportation or the proper clothing or tools for a job or training program, public assistance recipients will require more than partial assistance when they lose their jobs because they lack what is required "to apply for or to accept employment or training." The majority is cutting off its nose to spite its face.
Accordingly, I dissent and would affirm the order of Commonwealth Court granting appellees' motion for summary judgment and denying appellant's cross-motion for summary judgment.
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|June 23, 2014 02:49 AM EDT
STOCKHOLM, SWEDEN -- (Marketwired) -- 06/23/14 -- Lundin Petroleum AB (TSX:LUP)(OMX:LUPE) (Lundin Petroleum), through its wholly owned subsidiary Lundin Norway AS (Lundin Norway), is pleased to announce that drilling of appraisal well 16/4- 8 S on the Luno II discovery has commenced. The Luno II discovery is located approximately 15km south of the Edvard Grieg field in the North Sea sector of the Norwegian Continental Shelf (NCS).
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The main objective of well 16/4-8 S is to test the reservoir properties and verify the petroleum potential. The reservoir is expected to be of Jurassic/Triassic age.
The planned total depth is approximately 2,700 metres below mean sea level and the well will be drilled with the semi-submersible drilling unit Bredford Dolphin. The drilling operation is expected to take approximately 50 days.
Lundin Norway, the operator of PL359, holds a 40 percent interest and has announced that it will increase its interest to 65 percent interest, subject to governmental approval. Statoil Petroleum AS holds 15 percent interest and OMV Norge AS has entered into an agreement to increase its interest from 15 to 20 percent, subject to governmental approval.
Lundin Petroleum is a Swedish independent oil and gas exploration and production company with a well balanced portfolio of world-class assets primarily located in Europe and South East Asia. The Company is listed at the NASDAQ OMX, Stockholm (ticker "LUPE") and at the Toronto Stock Exchange (TSX) (Ticker "LUP"). Lundin Petroleum has proven and probable reserves of 194 million barrels of oil equivalent (MMboe).
This information has been made public in accordance with the Securities Market Act (SFS 2007:528) and/or the Financial Instruments Trading Act (SFS 1991:980).
Forward-Looking Statements
Certain statements made and information contained herein constitute "forward-looking information" (within the meaning of applicable securities legislation). Such statements and information (together, "forward-looking statements") relate to future events, including the Company's future performance, business prospects or opportunities. Forward-looking statements include, but are not limited to, statements with respect to estimates of reserves and/or resources, future production levels, future capital expenditures and their allocation to exploration and development activities, future drilling and other exploration and development activities. Ultimate recovery of reserves or resources are based on forecasts of future results, estimates of amounts not yet determinable and assumptions of management.
All statements other than statements of historical fact may be forward-looking statements. Statements concerning proven and probable reserves and resource estimates may also be deemed to constitute forward-looking statements and reflect conclusions that are based on certain assumptions that the reserves and resources can be economically exploited. Any statements that express or involve discussions with respect to predictions, expectations, beliefs, plans, projections, objectives, assumptions or future events or performance (often, but not always, using words or phrases such as "seek", "anticipate", "plan", "continue", "estimate", "expect", "may", "will", "project", "predict", "potential", "targeting", "intend", "could", "might", "should", "believe" and similar expressions) are not statements of historical fact and may be "forward-looking statements". Forward-looking statements involve known and unknown risks, uncertainties and other factors that may cause actual results or events to differ materially from those anticipated in such forward-looking statements. No assurance can be given that these expectations and assumptions will prove to be correct and such forward-looking statements should not be relied upon. These statements speak only as on the date of the information and the Company does not intend, and does not assume any obligation, to update these forward-looking statements, except as required by applicable laws. These forward-looking statements involve risks and uncertainties relating to, among other things, operational risks (including exploration and development risks), productions costs, availability of drilling equipment, reliance on key personnel, reserve estimates, health, safety and environmental issues, legal risks and regulatory changes, competition, geopolitical risk, and financial risks. These risks and uncertainties are described in more detail under the heading "Risks and Risk Management" and elsewhere in the Company's annual report. Readers are cautioned that the foregoing list of risk factors should not be construed as exhaustive. Actual results may differ materially from those expressed or implied by such forward-looking statements. Forward-looking statements are expressly qualified by this cautionary statement.
Reserves and Resources
Unless otherwise stated, Lundin Petroleum's reserve and resource estimates are as at 31 December 2013, and have been prepared and audited in accordance with National Instrument 51-101 Standards of Disclosure for Oil and Gas Activities ("NI 51-101") and the Canadian Oil and Gas Evaluation Handbook ("COGE Handbook"). Unless otherwise stated, all reserves estimates contained herein are the aggregate of "Proved Reserves" and "Probable Reserves", together also known as "2P Reserves". For further information on reserve and resource classifications, see "Reserves, Resources and Production" in the Company's annual report.
Contingent Resources
Contingent Resources are those quantities of petroleum estimated, as of a given date, to be potentially recoverable from known accumulations using established technology or technology under development, but are not currently considered to be commercially recoverable due to one or more contingencies. Contingencies may include factors such as economic, legal, environmental, political and regulatory matters or a lack of markets. There is no certainty that it will be commercially viable for the Company to produce any portion of the Contingent Resources. Unless otherwise stated, all contingent resource estimates contained herein are the best estimate ("2C") contingent resources.
Prospective Resources
Prospective Resources are those quantities of petroleum estimated, as of a given date, to be potentially recoverable from undiscovered accumulations by application of future development projects. Prospective Resources have both a chance of discovery and a chance of development. There is no certainty that any portion of the Prospective Resources will be discovered. If discovered, there is no certainty that it will be commercially viable to produce any portion of the Prospective Resources. Unless otherwise stated, all Prospective Resource estimates contained herein are reflecting a P50 Prospective Resource estimate. Risked Prospective Resources reported herein are partially risked. They have been risked for chance of discovery, but have not been risked for chance of development.
BOEs may be misleading, particularly if used in isolation. A BOE conversion ratio of 6 Mcf : 1 Bbl is based on an energy equivalency conversion method primarily applicable at the burner tip and does not represent a value equivalency at the wellhead.
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"Qosmos has launched L7Viewer, a network traffic analysis tool, so it analyzes all the traffic between the virtual machine and the data center and the virtual machine and the external world," stated Sebastien Synold, Product Line Manager at Qosmos, in this SYS-CON.tv interview at 19th Cloud Expo, held November 1-3, 2016, at the Santa Clara Convention Center in Santa Clara, CA.
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Without a clear strategy for cost control and an architecture designed with cloud services in mind, costs and operational performance can quickly get out of control. To avoid multiple architectural redesigns requires extensive thought and planning. Boundary (now part of BMC) launched a new public-facing multi-tenant high resolution monitoring service on Amazon AWS two years ago, facing challenges and learning best practices in the early days of the new service. In his session at 19th Cloud Exp...
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Everyone knows that truly innovative companies learn as they go along, pushing boundaries in response to market changes and demands. What's more of a mystery is how to balance innovation on a fresh platform built from scratch with the legacy tech stack, product suite and customers that continue to serve as the business' foundation. In his General Session at 19th Cloud Expo, Michael Chambliss, Head of Engineering at ReadyTalk, discussed why and how ReadyTalk diverted from healthy revenue and mor...
Dec. 8, 2016 05:45 PM EST Reads: 1,720
As data explodes in quantity, importance and from new sources, the need for managing and protecting data residing across physical, virtual, and cloud environments grow with it. Managing data includes protecting it, indexing and classifying it for true, long-term management, compliance and E-Discovery. Commvault can ensure this with a single pane of glass solution – whether in a private cloud, a Service Provider delivered public cloud or a hybrid cloud environment – across the heterogeneous enter...
Dec. 8, 2016 05:00 PM EST Reads: 1,819
You have great SaaS business app ideas. You want to turn your idea quickly into a functional and engaging proof of concept. You need to be able to modify it to meet customers' needs, and you need to deliver a complete and secure SaaS application. How could you achieve all the above and yet avoid unforeseen IT requirements that add unnecessary cost and complexity? You also want your app to be responsive in any device at any time. In his session at 19th Cloud Expo, Mark Allen, General Manager of...
Dec. 8, 2016 04:45 PM EST Reads: 1,846
Financial Technology has become a topic of intense interest throughout the cloud developer and enterprise IT communities. Accordingly, attendees at the upcoming 20th Cloud Expo at the Javits Center in New York, June 6-8, 2017, will find fresh new content in a new track called FinTech.
Dec. 8, 2016 04:45 PM EST Reads: 2,251
"We are a leader in the market space called network visibility solutions - it enables monitoring tools and Big Data analysis to access the data and be able to see the performance," explained Shay Morag, VP of Sales and Marketing at Niagara Networks, in this SYS-CON.tv interview at 19th Cloud Expo, held November 1-3, 2016, at the Santa Clara Convention Center in Santa Clara, CA.
Dec. 8, 2016 04:30 PM EST Reads: 390
@DevOpsSummit taking place June 6-8, 2017 at Javits Center, New York City, is co-located with the 20th International Cloud Expo and will feature technical sessions from a rock star conference faculty and the leading industry players in the world. @DevOpsSummit at Cloud Expo New York Call for Papers is now open.
Dec. 8, 2016 04:30 PM EST Reads: 1,973
Keeping pace with advancements in software delivery processes and tooling is taxing even for the most proficient organizations. Point tools, platforms, open source and the increasing adoption of private and public cloud services requires strong engineering rigor - all in the face of developer demands to use the tools of choice. As Agile has settled in as a mainstream practice, now DevOps has emerged as the next wave to improve software delivery speed and output. To make DevOps work, organization...
Dec. 8, 2016 04:15 PM EST Reads: 311


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[ my boyfriend says the shape reminds a binocular case :D]
There's something black in that "stone" !? I'm not sure if I should return it
since there weren't any in the product picture on their site, at least I didn't notice.
I may have to try it on my finger some other day, to see if my mind has changed
one way or another. I love the colour of it and that it's flexible, so I can wear it
on different fingers. Most of my rings fit to my "ring finger" only, so can't really
wear multiple at the same time - which I would love to do, I've seen many girls
have three or more at the same time, and on both hands. How come I've been
such a fool to buy rings in only one size, haha !
Or what do you think, would you keep the ring ?
+ There's more photos coming up of that indian top ! ^^


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This shot was taken in 2012, the film expired somewhere in 2008/2009. The roll of film contained some pictures taken in 2009, those pictures are somewhat grainy but don't have this blueish hue.
I tried creating a vignetting effect by putting white paint on the lens, it didn't really have as much effect as I wanted though.
dopa, tsingtao, mingkie, rik041 & fish300.


text:
Slide to see the images
Hi I'm Gouda! I was dumped here at the shelter one evening along with my 2 sisters and brother. The lovely people at Satchel's brought us in and cared for us. I adore everyone and I just love attention! I am still young so I love to run around and play. I get along great with all the other cats in the free roaming cat room I am currently staying in. I'd love it if you'd come to meet me! What do you say?!
Please email or call the shelter for more information.
Top Reviews
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A Treatise on Optics
1838 · Cambridge
by Griffin, William N.;
Cambridge: J. and J. J. Deighton, T. Stevenson. 1838. Hardcover. 8vo. Gray and lavendar papered boards, with paper spine label. With 8 plates at rear. Chipping to spine and label, paper splitting at joints. Some fading, light soiling to boards, bumping to corners. Front hinge starting. Light scattered foxing to title page. Pages cut open until about halfway through. Interiors are clean and sound. Good. . Good. Hardcover . (Inventory #: 32142)


text:
There are millions of Internet-Servers daily hacked from the same hand full of Hackers.
Every Webmaster has the same problems with Hackers, Intruders, Attackers and Spammers, but nobody is fighting against these Terrorists.
Should that then go on forever?
No, we are fighting against Hackers, Intruders, Attackers, Spammers, Cyber Terrorists and 188.8.131.52!
Sun, 04 Dec 2016 12:18:50 GMT - Actual more as 21.000.000 Hackers in our Database. (The newest 100 are displayed on the Globe and Map)
Detail informations for IP
WebServer Output: http://22.214.171.124
☎ Whois 126.96.36.199
HTML Markup Validation 220.127.116.11
The Web Site Header: 184.108.40.206
Black Listed: 220.127.116.11
Ping to 126.96.36.199
Open Ports on 184.108.40.206
Geo-Location Information 188.8.131.52
Tor lookup for IP 18.104.22.168
Reputation of 18.104.22.168
IP Geo Information: 22.214.171.124
Trace a Route to 22.214.171.124
DNS Records 22.214.171.124
Bad Neighbor IPs of 126.96.36.199
86 bad neighbor IPs are known!


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Back in the Day by Eric Scott
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Tragedy is when I get a hangnail. Comedy is when you fall in a volcano and die. (Apologies to Mel Brooks)
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text: | 9/12/2015 6:41 PM Ride case for iphone6 by Chris - verified purchaser I love my Topeak ride case! The Ridecase mounts easily to the handlebar stem so my iPhone is readily visible while riding to check maps. It swivels 90 degrees which is handy.The only annoying thing is that I have to take off my Otter bumper each time I push iPhone into the rideecase.


text: Risks By Mayo Clinic Staff Print Side effects of hormone therapy for breast cancer include: Hot flashes Vaginal discharge Vaginal dryness or irritation Fatigue Nausea Joint and muscle pain Impotence in men with breast cancer Less common, more-serious side effects of hormone therapy may include: Blood clots in veins Endometrial cancer or uterine cancer Cataracts Stroke Osteoporosis Heart disease Why it's doneWhat you can expect Oct. 26, 2016 Print Share on: Facebook Twitter References Breast cancer. Fort Washington, Pa.: National Comprehensive Cancer Network. http://www.nccn.org/professionals/physician_gls/f_guidelines.asp. Accessed May 5, 2016. Hormone therapy for breast cancer. National Cancer Institute. http://www.cancer.gov/types/breast/breast-hormone-therapy-fact-sheet. Accessed Aug. 19, 2016. Pritchard KI. Adjuvant endocrine therapy for non-metastatic, hormone receptor-positive breast cancer. http://www.uptodate.com/home. Accessed Aug. 19, 2016. Fareston (prescribing information). Bridgewater, N.J.: ProStrakan Inc.; 2012. http://www.fareston.com. Accessed Aug. 19, 2016. Arimidex (prescribing information). Wilmington, Del.: AstraZeneca; 2013. http://www.arimidex.com. Accessed Aug. 19, 2016. Aromasin (prescribing information). New York, N.Y.: Pfizer Inc.; 2016. http://www.aromasin.com. Accessed Aug. 19, 2016. Faslodex (prescribing information). Wilmington, Del.: AstraZeneca; 2016. http://www.faslodex.com. Accessed Aug. 19, 2016. Zoladex (prescribing information). Wilmington, Del.: AstraZeneca; 2016. http://www.zoladex.com. Accessed Aug. 19, 2016. Femara (prescribing information). East Hanover, N.J.: Novartis Pharmaceuticals Corporation; 2014. http://www.femara.com. Accessed Aug. 19, 2016. AskMayoExpert. Breast cancer. Rochester, Minn.: Mayo Foundation for Medical Education and Research; 2015. Ellis M, et al. Mechanisms of action of selective estrogen receptor modulators. http://www.uptodate.com/home. Accessed Sept. 12, 2016. Ibrance (prescribing information). Mission, Kan.: Pfizer Inc; 2016. http://www.ibrance.com. Accessed Sept. 12, 2016. Afinitor (prescribing information). East Hanover, N.J.: Novartis Pharmaceuticals Corporation; 2016. http://www.afinitor.com. Accessed Sept. 12, 2016. RelatedVaginitisAwake brain surgeryMale breast cancerRecurrent breast cancer Hormone therapy for breast cancerOverviewProcedure detailsWhy it's doneRisksWhat you can expectResultsClinical trialsMore aboutIn-DepthExpert BlogResources Advertisement Mayo Clinic does not endorse companies or products. Advertising revenue supports our not-for-profit mission. Advertising & Sponsorship Policy Opportunities Mayo Clinic Store Check out these best-sellers and special offers on books and newsletters from Mayo Clinic. Mayo Clinic A to Z Health GuideRecipes for Healthy LivingThe Menopause Solution — NEW!Diabetes Diet Book & Journal ComboGuide to Stress-Free Living Procedure details Clinical trials PRC-20213600 Patient Care & Health Information Tests & Procedures Hormone therapy for breast cancer


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123 Hummingbird Ave Ladson Sc 29456 MLS# 1026754
1026754 - Residential real estate
Ladson, SC
This home is a MUST see. Absolutely beautiful with so many special features. Newly re-done architectural roof. A sunroom added that is just gorgeous, a bricked patio behind sunroom, and a lovely landscaped yard. The home has wood floors in the living room. Berber carpet in the bedrooms. There is crown molding, kitchen has ceramic tile floor. There is ceramic tile in laundry room. Sunroom has cathedral ceiling and walls are bead board. There is a sprinkler system and two sheds in the backyard with one shed having a power source. There are several ceiling fans. This home is ready for someone to move right in. It is a home that any agent would enjoy showing. This one will sell quickly. Very well maintained, upgraded and updated. So many extras and little surprises that make it very appealing. Bright and cheery --- stylish and new...come see for yourself.
View the Full Details of this Home for Sale in Ladson
Please contact us if you have any questions or comments.


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text: This restaurant is located in the Hotel with the same name. It has a great location in front of the sea. We ordered a bottle of white wine, which was recommended by our waiter (Fia Gre 2015 Campania Bianco). It went well with the dishes that we asked. I ordered the zucchini flowers stuffed with mozzarella. They were good but... More


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If You Fall Off The Horse You Need To Get Back On!
Tuesday, March 25, 2008
Falling off the Horse is easy to do:
OK I admit this last week has been tough. First, It was my TOM which always has me feeling like a bottomless pit. Second, It was Easter/Spring break and I was home for a week entertaining guests and visiting the refrigerator way too often. Then of course the BIG Easter feast. Thirdly, my teenager son had decided to purposely fail most of his senior year courses so of course we had to administer "Tough Love" Since dealing with teenagers is stressful I felt the urge to eat more to make me feel better but all I suceeded in doing was to make myself feel worse.
Getting Back on is tough but it needs to be done:
Now that Easter break is over and I have returned to work and all of my guests have gone home I can get back into a routine. I threw out all the leftover cake, cheesecake, cookies and sent the Easter baskets to my kids rooms. Their rooms are a disaster so I know I'll stay away from it while it is in there. I started back on my exercise program by using my treadmill tonight and I plan to do so each night this week to elliminate the excess weight gain from this past week. I also joined a small group of SparkTeam members in a "loose 3 pounds this week challenge" It was what I needed to get back on that horse. Wish me luck! I need all the encouragement I can get to stay motivated. I want to do this. I need to do this. :)
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Thread: Vericenter?
09-06-2006, 04:32 PM #1New Member
- Join Date
- Sep 2006
- Posts
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Anyone have any feedback on VeriCenter for enterprise hosting?
09-06-2006, 04:54 PM #2WebHostingTalk Lover
- Join Date
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- Location
- New York City
- Posts
- 7,391
I would begin with a search for reviews on vericenter here on WHT http://www.webhostingtalk.com/search.php then do some research accross various review sites or via google and so on. Also be sure to send a sales email over and see how their responses are in terms of speed and service.
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Karo Syrup Butterscotch Sauce
27 Feb 2010
|Egg yolk
|4 Tablespoon
|Brown sugar
|2⁄3 Cup (10.67 tbs)
|Light karo syrup
|1⁄3 Cup (5.33 tbs)
|5 Tablespoon
Beat yolks and water in top of double boiler with fork.
Add sugar, syrup and butter.
Cook directly over burner until boiling.
Then put over boiling water, and let simmer for 30-60 minutes.
Keep refrigerated.
Rate It
Nutrition Rank
Nutrition Facts
Serving size: Complete recipe
Calories 1017 Calories from Fat 570
% Daily Value*
Total Fat 65 g99.7%
Saturated Fat 40 g199.8%
Trans Fat 0 g
Cholesterol 346.4 mg115.5%
Sodium 141.5 mg5.9%
Total Carbohydrates 109 g36.2%
Dietary Fiber 0 g
Sugars 108.1 g
Protein 3 g6%
Vitamin A 41.8% Vitamin C
Calcium 3.7% Iron 2.4%
*Based on a 2000 Calorie diet
Karo Syrup Butterscotch Sauce Recipe


text:
>> Guest Reviews & RatingsPrint this page
Hotel Arihant Palace
Vanasthali Marg, Jaipur, Rajasthan - 302 006
Starting from Rs. 1,154
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Hotel Arihant Palace, Jaipur - Guest Reviews & Ratings
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"Good for Those Travelling by Car" Novotel Perpignan Tip by avino
Novotel Perpignan, Perpignan: 190 reviews and 0 photos
20 min from Perpignan by taxy since there is no way to get there but a car. A week of travelling to Perpignan and back thus took me about 600 EURO and thinking of that makes me crazy even now. A huge parking lot so good for those travelling by car ( but only for them). The room was large enough, with decent furniture and clean. Restaurant was very good, both food and service. And a lot of people eating with children, of all ages. For small ones high chairs provided. There is a large swimming pool outdoors. Personnel doesn't speak English.
Address: "Aeroport, Rte Nationale 9", Perpignan null
Price Comparison: more expensive than average
Phone: +33 4 68 64 02 22
Price: US$80-120
Theme: Hotel
Website: http://www.accorhotels.com/gb/hotel-0424-novotel-perpignan/location.shtml
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170K 📈 The #NRL club membership tracker is keeping tabs on how all sixteen sides are faring - and we...
17 hours ago - 6 Likes
Leeds Rhinos 36 Tries: Burrow 2, Webb 2, Lauitiiti Goals: Sinfield 7 Drop Goals: Sinfield 2
Wigan Warriors 6 Tries: Richards Goals: Richards
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Leeds Rhinos set up an engage Super League Grand Final showdown with St Helens after a comprehensive win over Wigan Warriors at Headingley Carnegie Stadium.
An early penalty goal from Kevin Sinfield - a scorer in every game this year - gave the hosts the early lead. Jamie Peacock


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April 9, 1969
ROCCO A. TAMBURRO, PLAINTIFF,v.THERESA TRAMA, DEFENDANT
George Beisheim, Jr., J.
This is a replevin action brought to try the right of possession of certain furniture with the alleged value of $500 pursuant to CPLR article 71, "Recovery of Chattel". Plaintiff moves by order to show cause for an order directing the Sheriff of Westchester County to enter the defendant's apartment in Mount Vernon, New York, for the purpose of removing said furniture. On February 26, 1969, plaintiff having complied with CPLR 7102 which provides for such removal when "the plaintiff delivers to him an affidavit, requisition and undertaking", the Sheriff, by his deputy, served the necessary papers and attempted to seize the chattels. The defendant refused to permit the Deputy Sheriff to enter her apartment. If the requisition, which is the mandate of the court (CPLR 7102, subd. [d]) had been executed, the statute directs the Sheriff to retain custody for three days and upon the expiration of that period to deliver the chattels to the plaintiff "if there has not been served upon him either a notice of exception to the plaintiff's surety, a notice of motion for an impounding order, or the necessary papers to reclaim the chattel" (CPLR 7102, subd. [f]). From the papers, there would appear to be a bona fide dispute as to the ownership of the furniture.
CPLR 7103 provides that a chattel may be reclaimed from the Sheriff by a person claiming the right to its possession, by meeting certain requirements, one of which is an undertaking executed as required by CPLR 7102 (subd. [e]).
The defendant states that she is receiving public assistance from the Department of Social Services and, because of this factor and not having any assets, an undertaking could not be obtained.
It is the defendant's contention that the requirement to post an undertaking invidiously discriminates against the defendant, a poor person, to deny her equal protection under the Federal and State Constitutions in that the removal of the chattels will grant plaintiff relief prior to an adjudication on the merits, as he is able to post an undertaking and she is not. She requests that she be permitted to retain possession of the chattels during the pendency of the action without posting an undertaking.
The basis of defendant's theory is Jeffreys v. Jeffreys (58 Misc. 2d 1045). The Jeffreys case is not in point but, in any event, this court respectfully disagrees with the philosophical dicta in that decision. The court is bound to follow the mandate of the Legislature (CPLR, art. 71) in this action brought to try the right to possession of a chattel. Motion granted.
Motion granted.
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Basildon Crown Court
- SMan charged with string of offences including Lamarsh burglarysuffolkfreepress.co.uk
- RRainham man who cooked bomb in oven has sentence reducedromfordrecorder.co.uk
- Disqualified driver who crashed after 100mph-plus police chase on A140, A14 and A12 is jailed againeadt.co.ukNorway
- RMarried couple convicted after teaming up to carry out 38 late night burglaries in Upminster and Hornchurchromfordrecorder.co.uk
- RThree found guilty of stealing equipment worth 'thousands' from Havering fire stationsromfordrecorder.co.uk
- IThree found guilty of stealing equipment worth 'thousands' from Redbridge fire stationsilfordrecorder.co.uk
- HJail for pair who stole vital lifesaving equipment from Hackney fire stationshackneygazette.co.uk
- Essex: Teenager jailed for acid attack on group of friendsThe Guardian
- Teenager jailed for acid attack on group of friends at rail stationShropshire Star
- Lorry drivers jailed for human trafficking after man died while trapped in container in front of his familyThe Daily RecordHigh Cross
- Lorry drivers jailed for trafficking run in which man died in front of familyShropshire StarHigh Cross
- RHarold Hill burglar app-rehended after victim uses iPhone to track himromfordrecorder.co.uk
- Paedophile sparked terror evacuation after 'cooking' bomb in oven because police found his stash of child abuse imagesmirror.co.uk
- Paedophile sparked massive evacuation after 'cooking' bomb in oven because police found his child abuse images stashmirror.co.uk
- Paedophile sparked a mass evacuation when he tried to kill himself by 'cooking' a bomb in his oven after police found a stash of child abuse images on his computerDaily Mail
- RRainham man charged with having an explosive substance expected in court this afternoonromfordrecorder.co.uk
- NWoman jailed in connection with Nico Ramsay murdernewhamrecorder.co.uk
- NWoman jailed in connection with Plaistow teenager's murdernewhamrecorder.co.uk
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This raised ground floor apartment benefits from a private entrance from the second courtyard as well as direct access to the main Culti designed courtyard and lobby. It has a large living room and 3m high ceilings. The apartment comprises: living room with kitchen area, double bedroom, bathroom. This apartment represents an excellent rental investment.
View more information about this property : Venice Sotheby's International Realty


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Spritz and shine a canine with today's side deal: for $35, you get $80 worth of doggy-grooming services at Happy Hounds Pet Grooming. Happy Hounds preps pooches of all ages and breeds with a bevy of doggy-dappering services, without the use of tranquilizers. Reward a loyal labrador or vigilant cerberus with a full-service groom, which includes a bath, nail clipping, ear cleaning, haircut, and decorative bow ($45+ for medium to extra-large dogs), or spruce up a soiled schnauzer or other small pup with a basic bath ($25+). Happy Hounds also offers hot-oil treatments, anal-gland expressing, and flea and tick dips to clear coats of unwanted parasites and funk-rock bassists.
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Customer Reviews
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December 29, 1965
UNITED STATES OF AMERICA, PLAINTIFF-APPELLEE,v.ABRAHAM W. BOLDEN, DEFENDANT-APPELLANT
Hastings, Chief Judge, and Knoch and Swygert, Circuit Judges.
SWYGERT, Circuit Judge.
Defendant Abraham W. Bolden, a former Secret Service agent for the Treasury Department, appeals from a judgment of conviction on all counts of an indictment charging him with seeking a bribe in return for acting in violation of his official duty, 18 U.S.C. § 201, corruptly obstructing the due administration of justice, 18 U.S.C. § 1503, and conspiring with Frank Jones to commit the crimes defined in these sections, 18 U.S.C. § 371.*fn1 A sentence of six years was imposed. Defendant also appeals from the denial of a motion for a new trial based upon newly discovered evidence.*fn2
The evidence, as developed at the trial and considered in the light most favorable to the Government, tends to establish the following circumstances.
On April 26, 1964, Agent John E. Russell of the Secret Service office in Chicago prepared an original and seven copies of a report relating to the investigation of a counterfeit savings bond case involving, among others, one Joseph Spagnoli. The copies were distributed to agents in the Chicago office, including the defendant Abraham Bolden. On May 8, Agent Conrad Cross received from the defendant the copy of the report which had been designated for the defendant and him. Cross thereafter left his office for a short time; when he returned the report was gone.
On May 9, following the return of a grand jury indictment, arrests of Spagnoli and others who had been included in the counterfeiting investigation were made. After his arrest and while in the Secret Service office, Spagnoli spoke to Agent Bolden. He asked if Secret Service agents took money. The defendant replied that out of fourteen thousand agents, some did.
On the morning of May 11, the defendant went to the home of Frank Jones. Jones was then under indictment for counterfeiting and had twice been arrested by the defendant. Agent Bolden told Jones a number of facts about the Spagnoli case, including the whereabouts of Sandra Hafford. Hafford, an erstwhile friend of Spagnoli, had testified against him before the grand jury, and was being held in protective custody by the Secret Service in a downtown Chicago hotel. The defendant produced several onionskin papers stapled together and a small, typewritten piece of paper containing an excerpt from the summary report of the Spagnoli investigation. He asked Jones to go to Spagnoli's home, give Spagnoli the piece of paper, and tell him that he could have the entire file for $50,000. The defendant said that the money would be split between Jones and him.
Jones visited Spagnoli's home the following day and delivered the piece of paper. He told Spagnoli that he had a contact in the Secret Service and that the Spagnoli file was available for $50,000. Jones returned home and called the defendant. Soon thereafter Bolden picked Jones up in his official car. The defendant instructed Jones to inform Spagnoli that the Secret Service had arranged to have Sandra Hafford's hair dyed red that afternoon. The defendant also suggested that Spagnoli be cautioned not to curse when talking to Hafford on the phone because the conversation would be taped.
On the morning of May 13, Spagnoli called Maurice G. Martineau, the Secret Service agent in charge, and related Jones' offer to him. The fact of Spagnoli's call was in turn repeated within earshot of the defendant. Later that day the defendant called Jones, told him that Spagnoli had called the "boss," and instructed him not to talk to Spagnoli.
Subsequently, Spagnoli gave Martineau the paper he received from Jones and identified Jones as the person who had approached him. Jones was arrested on May 18. In the meantime, Agent Russell retrieved all copies of the Spagnoli summary report with the exception of the one designated for Agent Cross and the defendant.
The defendant left for Washington, D.C. on May 17 to attend a Secret Service training school. In the afternoon of the following day, in the company of three agents, he was returned to Chicago under pretext and taken to the United States Attorney's office. There Agent Martineau began to explain the situation. At one point the defendant interrupted him to observe that the Secret Service was free to check his typewriter. Martineau had not mentioned the typewritten nature of the excerpt from the Spagnoli file. Later, in response to a question by Agent Jordan, the defendant said he didn't know that the Secret Service was going to dye Hafford's hair. Then, within a few minutes, he volunteered that he didn't know they were going to dye her hair "red."
The defendant was formally placed under arrest late in the evening of May 18. A few days later he told a Secret Service informant, Richard Walter, that he would give $500 to the man who would kill Jones, the "stool pigeon."
The defendant's motion for a new trial based upon newly discovered evidence relates to certain events surrounding the counterfeiting trial of Government witness Spagnoli in January, 1965, some five months after the defendant's trial and sentencing.
At his own trial, Spagnoli testified that he had committed perjury in certain respects as a Government witness in the defendant's trial. He testified that his livelihood was gambling and that he had falsely testified during the defendant's trial that his mother supported him. He stated that this perjury was suborned by Government counsel in order to make him look better in the eyes of the jury. Spagnoli also testified that he had lied during the defendant's trial in reference to the date on which his call to Agent Martineau was placed, and possibly with reference to other dates. Spagnoli was thereafter found guilty and received a fifteen year sentence.
The defendant's motion for new trial also included the affidavit of his trial counsel. The affidavit stated that counsel had a conversation with Spagnoli following the latter's conviction in which Spagnoli complained that an assistant United States Attorney had "backed down from a deal" with him concerning his testimony against the defendant. During the defendant's trial, Spagnoli had testified that he had received no promise of leniency from the Government in exchange for his testimony.
The district judge, who presided at the trials of both Spagnoli and the defendant, entered findings of fact and conclusions of law with respect to the defendant's newly discovered evidence and denied the motion for a new trial.
The defendant's first contention is that he was deprived of a fair trial by the prejudiced attitude of the trial judge, by certain prejudicial rulings, and by the misconduct of the prosecuting attorney. More specifically, the defendant points to a number of circumstances which, by reason of the district judge's allegedly preconceived opinion of the defendant's guilt, resulted in the unconscious oppression of defense counsel's best efforts, and which also purportedly demonstrate the excessive zeal of Government counsel. We have examined each of the defendant's charges in detail, but will discuss only a few of the more serious allegations.
After the jury had reached a deadlock in the defendant's first trial, the jury was returned to the courtroom and the so-called "Allen charge"*fn3 was given by the trial judge. The judge added that in his opinion the evidence would sustain a verdict of guilty on all three counts of the indictment, but clearly informed the jury that his opinion could be entirely disregarded. The jury remained deadlocked and a mistrial was declared.
Prior to the second trial, defense counsel moved for a substitution of judges on the ground of prejudice. The motion was denied. The defendant says that the motion should have been granted, that since the judge had expressed an opinion of guilt, an impartial trial before the same judge was impossible. The defendant, significantly, cites no authority for his proposition. Nor do we find any merit in it.
A federal judge may, in his discretion, comment upon the evidence or, in exceptional cases, express an opinion of the guilt of the accused. United States v. Murdock, 290 U.S. 389, 54 S. Ct. 223, 78 L. Ed. 381 (1933); United States v. Gibas, 300 F.2d 836 (7th Cir.), cert. denied, 371 U.S. 817, 83 S. Ct. 32, 9 L. Ed. 2d 58 (1962). We do not see how the exercise of that discretion in one trial, without more, could necessarily result in prejudice against an accused in a second trial. An opinion as to what the evidence has demonstrated cannot be equated with personal bias. Trial judges are invariably called upon to conduct impartial trials despite whatever opinion they may have or which they may formulate during the course of the trial concerning the guilt or innocence of an accused. Such impartiality is precisely what is expected of them, and an experienced trial judge must be assumed capable of performing his essential function. In short, prejudice must be shown by trial conduct; it may not be presumed or inferred from the subjective views of the judge.
The defendant next contends that the record substantiates his view of the existence of preconceived judicial prejudice. He states that his trial counsel frequently failed to object to improper evidentiary procedures because of a timidity occasioned by the "criticism, belittling, condemnation and admonitions" of the trial judge. As an illustration, the defendant refers to a warning issued by the judge to defense counsel in connection with the cross-examination of Government witness Frank Jones. The court's admonition was prompted, inter alia, by an attempt on the part of defense counsel to impeach the witness from memory, without referring to the transcript of the defendant's first trial. The court interrupted, stating: "Counsel is admonished not to follow that procedure any more. When you wish to ask an impeaching question, go back to the record and ask him correctly." The jury was then excused, the warning was repeated, and the judge suggested the possibility of stronger measures if the offending practice were continued. We find no error. The improper method of questioning by defense counsel justified the reprimand. Moore v. United States, 132 F.2d 47 (5th Cir. 1942), cert. denied, 318 U.S. 784, 63 S. Ct. 854, 87 L. Ed. 1151 (1943).
The trial court's censure of defense counsel for the latter's attempted impeachment of another witness through the showing of mere arrest was also justified. Further, defense counsel's persistence in this regard does not reveal the "timidity" to which the defendant has referred. We do not find that defense counsel "trimmed his sails to such a judicial wind as prevailed in the courtroom," United States v. Ah Kee Eng, 241 F.2d 157, 161, 62 A.L.R.2d 159 (2d Cir. 1957).
Finally, the defendant refers to a number of remarks by the assistant United States Attorney which, he says, were highly improper and inflammatory. He notes that the prosecutor called the jury's attention to the fact that Sandra Hafford was in the protective custody of the Secret Service. He contends that from this statement the jury may have drawn an erroneous conclusion about the defendant's intentions toward her. The jury, however, was well apprised of Hafford's Secret Service custody prior to the prosecutor's comment. In view of her testimony concerning her association with Spagnoli, we do not see how the jury could have drawn the conclusion suggested by the defendant. The other comments of the prosecutor assailed by the defendant were either ambiguous or only slightly importune at best. The defendant did not object to any of these remarks and we do not believe that prejudicial error could have resulted therefrom.
The defendant's next allegation of error relates to the admission into evidence, without objection, of his inculpatory remarks to Agents Martineau and Jordan shortly after his return from Washington, D.C. in Secret Service custody. The defendant contends that these statements were elicited after a request for the assistance of counsel had been denied, at a time when he was being personally accused of a crime, and that therefore the constitutional principle enunciated in Escobedo v. State of Illinois, 378 U.S. 478, 84 S. Ct. 1758, 12 L. Ed. 2d 977 (1964), requires a reversal of his conviction. He further alleges, citing Rule 52(b) of the Federal Rules of Criminal Procedure, that this error resulted in such a substantial constitutional deprivation as to excuse his failure to object to the admissibility of the statements.
The record shows, and the Government does not dispute, that the defendant was returned from Washington to Chicago on May 18 under pretext. He was told by his superiors that he was needed for certain undercover work in connection with a counterfeiting case. Actually, he was being returned to answer the charge that he had attempted to sell a Secret Service file to Spagnoli.
The defendant testified, without contradiction, that he was taken to the Chicago Secret Service office for interrogation at approximately 5:15 p.m. and was not formally placed under arrest until shortly before midnight. More importantly, the defendant testified, again without contradiction, that early in the course of his questioning by Agent Martineau, when it became evident that he was being accused in the Spagnoli matter, he requested the services of an attorney. He further testified that his request was not granted.
The record contains no other reference bearing upon defendant's request for an attorney. No attempt was made by the Government to contradict the defendant's testimony. In this posture, we must accept as fact: (1) that the defendant requested the aid of counsel, (2) that his request fell on deaf ears, and (3) that certain inculpatory statements were thereafter made.
The inculpatory statements themselves have already been mentioned. Both were volunteered by the defendant and were ostensibly intended to be exculpatory; however, both tended to show guilty knowledge on his part. The first statement indicated that he knew, without having been told, that the file excerpt given to Spagnoli was typewritten. The second, in response to a question from Agent Jordan, indicated that the defendant knew more about the dyeing of Sandra Hafford's hair than he had represented.
As previously noted, the incriminating statements were admitted into evidence without objection. No motion to suppress was ever filed. During both trials, defense counsel brought out other remarks of an exculpatory nature attributable to the defendant's period of questioning by his superiors.*fn4 Full opportunity was provided, particularly after the defendant was able to assess the damaging character of his statements when a mistrial was declared in his first trial, to attempt the exclusion of these statements from the jury's consideration.*fn5 For these reasons we hold that the defendant is precluded from raising the constitutional question for the first time on this appeal. As we said recently in United States v. Childress, 347 F.2d 448, 451 (7th Cir. 1965), "we cannot say that defendant now has a right to have us pass upon the admissibility of the * * * testimony under rule 52(b) * * *."
It is contended on behalf of the defendant that the district judge "seriously erred in failing at that time on its own motion" to strike the inculpatory statements which defendant made to the Secret Service agents. We know of no rule that requires a trial court to strike evidence such as the evidence in question here when no objection is made to its reception during the trial. Counsel for the defendant had the duty to bring the now claimed objectionability of his evidence to the attention of the trial judge. He cannot remain silent throughout the trial and then claim error for the first time on appeal.
The defendant's motion for a new trial based upon newly discovered evidence has several facets. It is based, however, upon the central contention that Spagnoli was an essential Government witness who provided the only substantial corroboration for Frank Jones' testimony of the latter's conspiracy with the defendant, and that Spagnoli had committed perjury during the Bolden trial which was known to, and in part suborned by, the Government prosecutor.
Initially, it must be observed that the defendant assumes a heavy burden when he attempts to set aside the denial of his motion by the district court. The district judge made findings in support of his ruling. He presided at both of the defendant's trials and the subsequent trial of Spagnoli. He found as a fact that Spagnoli lied at his own trial and testified truthfully at the trial of the defendant. He further found that Spagnoli's attempted admission at his own trial was prompted by the fact that when "Spagnoli realized that he was going to be convicted, he testified falsely in the hopes that he could avoid a conviction * * * by casting a shadow over the prosecution and therefore avoid a possible 25 year sentence in the knowledge that even if indicted and convicted of perjury arising out of the recantation, the maximum sentence could only be five years in custody of the Attorney General." The district judge made other findings in support of this conclusion.
Our review is limited to whether the findings of the district judge reveal a clear abuse of discretion. As stated by the Supreme Court in United States v. Johnson, 327 U.S. 106, 111-112, 66 S. Ct. 464, 466, 90 L. Ed. 562 (1945), reversing our decision in United States v. Johnson, 149 F.2d 31 (7th Cir. 1945), "while the appellate court might intervene when the findings of fact are wholly unsupported by evidence * * *, it should never do so where it does not clearly appear that the findings are not supported by any evidence." The district judge's findings of fact on the defendant's motion for new trial, then, may not be ignored.*fn6
With this in mind we turn to the specific grounds for defendant's motion for a new trial. First, it is alleged that Spagnoli testified falsely in the Bolden trial, at the suggestion of the Government prosecutor, that he was dependent upon his mother for support, whereas in fact he made his living by gambling. Spagnoli did attempt to admit this falsity, but it must be noted that he did not actually testify in the Bolden trial that his mother supported him. He testified only that his mother supported his two children and that he was unemployed. Regardless of a possible discrepancy between this testimony and his later admission, Spagnoli's livelihood was clearly a collateral matter bearing upon his credibility. His credibility, in turn, had been adequately put before the jury. We do not believe that the jury's overall appraisal of this witness would have been substantially affected by the knowledge that he was being less than forthright concerning his source of income.
Second, it is alleged that Spagnoli lied at the Bolden trial with reference to his first contact with Agent Martineau of the Secret Service. The record amply supports the district judge's finding that the conflicting evidence with reference to the specific date of that contact was thoroughly explored at the Bolden trial.*fn7
We also agree with the district judge's conclusion that, in any event, the testimony of Spagnoli was merely cumulative. Frank Jones was the key Government witness. His testimony as to the essential elements of the crime was fully corroborated by other witnesses and by certain real evidence.*fn8
The defendant next asserts that his conviction must be reversed because an assistant United States Attorney made a promise to Spagnoli in exchange for the latter's testimony and thereafter failed to inform the jury of that fact when Spagnoli denied the existence of any such "deal" during the defendant's trial. The facts concerning this alleged offer of assistance were also determined by the district judge and are supported by the record.
The district judge found that the only promise made by the assistant United States Attorney was a statement that the fact of Spagnoli's testimony would be brought to the attention of the sentencing judge in Spagnoli's counterfeiting trial, the same judge who would hear his testimony in the defendant's trial. The assistant United States Attorney in question commented upon his "offer" in the following manner:
At the time I discussed this matter with Mr. Spagnoli initially * * *, I told Mr. Spagnoli that if he wanted to take a plea of guilty in this case, that the fact that he had been a witness in the Bolden case would, of necessity, be brought to the attention of the sentencing Judge, because his testimony in the Bolden case was being given before the same Judge who would eventually hear his own case. * * *
During the defendant's trial, the following colloquy occurred between the witness Spagnoli and defense counsel:
Q. Now, Mr. Spagnoli, you say that you are indicted under case docketed as 64 CR 300 entitled United States vs. D'Antonio and others. Now I ask you if the Government or the Secret Service made any promises of immunity of any type for your testifying here?
A. No, because I didn't do any of those things. That's why. I don't need nothing. I'm innocent to them charges. I didn't conspire with nobody. I don't have to have a deal.
Q. Nobody promised you any assistance in your indictment.
A. I don't need any assistance. I'm innocent of the charges.
Q. That is not the question, Mr. Spagnoli. I am asking you if someone promised you something.
The Court: Let his answer stand. You have the answer. Let us just go on. He is not on trial, ladies and gentlemen, in that case here. That is a mere charge as far as you folks are concerned.
The Witness: He is insinuating, your Honor, that I might have got a deal. I don't need no deal. I am innocent of them charges. I didn't do none of them things.
We do not think that the assistant United States Attorney's statement to Spagnoli prior to his becoming a witness in the Bolden trial taints the testimony recited above. Nor do we think that these circumstances imposed a duty upon the Government attorney to disclose to the court and jury his earlier comment to Spagnoli. The obvious "assistance" which had been promised cannot be considered an inducement for Spagnoli's testimony.
The defendant relies principally upon Napue v. Illinois, 360 U.S. 264, 79 S. Ct. 1173, 3 L. Ed. 2d 1217 (1959). In that case, the principal state witness in a murder trial, who was then serving a 199-year sentence as an accomplice in the same murder, testified that he had received no promise of consideration in return for his testimony. In fact, an assistant State's Attorney had promised to recommend a reduction in the witness' sentence, and did nothing to correct the testimony. The Supreme Court held that the knowing permission of such false testimony was a denial of due process under the fourteenth amendment.
The statement made to Spagnoli in this case did not amount to such an affirmative promise of assistance as was condemned in Napue. Pointing out to Spagnoli the obvious fact that his testimony as a Government witness would be given before the same judge who would sentence him upon a plea of guilty and then remaining silent while Spagnoli vigorously proclaimed his innocence and denied having made a "deal" do not, we think, constitute either a dangling of reward or a knowing permission of perjury on the part of Government counsel.
The defendant's final contention is that Spagnoli's conviction of counterfeiting, a crime for which he was indicted prior to the indictment of the defendant, is newly discovered evidence which should have been available for impeachment purposes during defendant's trial to enable the jury to more accurately determine Spagnoli's credibility. This contention must also be rejected. Spagnoli's indictment for counterfeiting was exposed and his credibility was thoroughly examined at the defendant's trial. His subsequent conviction was merely cumulative and impeaching. Under these circumstances the district judge did not abuse his discretion in denying the motion for new trial. Murphy v. United States, 91 U.S.App.D.C. 118, 198 F.2d 87 (1952); United States v. Mentesana, 203 F. Supp. 63 (E.D.N.Y.), aff'd, 305 F.2d 214 (2d Cir. 1962), cert. denied, 375 U.S. 848, 84 S. Ct. 102, 11 L. Ed. 2d 75 (1963). Moreover, Spagnoli's conviction was not evidence that was in existence at the time of the defendant's trial and therefore did not constitute evidence upon which a new trial could be based.
The order denying the motion for a new trial is affirmed. The judgment of conviction is affirmed.
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