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Aptose Biosciences Inc. (NASDAQ:APTO)'s stock had its "buy" rating reissued by Roth Capital in a note issued to investors on Friday. They currently have a $8.00 price target on the stock. Roth Capital's target price points to a potential upside of 263.64% from the company's previous close.
Several other research analysts have also recently weighed in on the company. Canaccord Genuity reiterated a "buy" rating and set a $7.00 price objective on shares of Aptose Biosciences in a research report on Saturday. Zacks Investment Research raised Aptose Biosciences from a "sell" rating to a "hold" rating in a report on Tuesday, October 11th. RBC Capital Markets reissued an "outperform" rating on shares of Aptose Biosciences in a report on Tuesday, September 13th. Finally, Royal Bank Of Canada reissued an "outperform" rating and set a $23.00 target price on shares of Aptose Biosciences in a report on Saturday, June 25th. One research analyst has rated the stock with a hold rating and five have given a buy rating to the company. The stock currently has an average rating of "Buy" and a consensus target price of $12.30.
Shares of Aptose Biosciences (NASDAQ:APTO) opened at 2.20 on Friday. The company's market capitalization is $28.36 million. The firm's 50-day moving average price is $2.22 and its 200 day moving average price is $2.46. Aptose Biosciences has a one year low of $1.92 and a one year high of $6.40.
A hedge fund recently bought a new stake in Aptose Biosciences stock. Bank of Montreal Can acquired a new stake in shares of Aptose Biosciences Inc. (NASDAQ:APTO) during the second quarter, according to its most recent disclosure with the Securities and Exchange Commission (SEC). The firm acquired 52,624 shares of the company's stock, valued at approximately $128,000. Bank of Montreal Can owned about 0.43% of Aptose Biosciences as of its most recent SEC filing. 19.47% of the stock is owned by institutional investors and hedge funds.
About Aptose Biosciences
Aptose Biosciences Inc (Aptose) is a clinical-stage biotechnology company. The Company is engaged in the development of anticancer drugs that target specific epigenetic processes and signal transduction abnormalities that underlie a particular life-threatening malignancy. Its product pipeline includes cancer drug candidates that exert activity as stand-alone agents and that enhance the activities of other anticancer agents without causing overlapping toxicities.
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decided: February 18, 1981.
APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE WESTERN DISTRICT OF PENNSYLVANIA (D.C. Civil No. 80-0188 sur Bankruptcy No. 77-0090)
Before Gibbons and Weis, Circuit Judges and Whipple*fn*, District Judge.
Opinion OF THE COURT
A subcontractor on an apartment building project and the trustee in bankruptcy for the owner each claim the right to undisbursed construction mortgage funds in the hands of a bank. Discerning no contract between the subcontractor and the bank or the owner, the district court entered judgment for the trustee. We conclude that, under Pennsylvania law, the subcontractor is entitled to recover on third party beneficiary, equitable assignment, or unjust enrichment theories and accordingly reverse.
Gebco Investment Corporation entered into an agreement with its wholly owned subsidiary, Lion Development and Construction Corporation, to build an apartment house near Pittsburgh, Pennsylvania. Financing for the project was provided by Equibank, which loaned $85,000 secured by a mortgage executed in February 1974. To satisfy one condition of the loan, Gebco and Lion agreed that no liens would be filed by any subcontractors. Pursuant to Pennsylvania law, this no-lien contract was duly recorded in the Prothonotary's Office of Allegheny County, Pennsylvania.
As part of the transaction with Equibank, Gebco signed a construction loan agreement providing that the bank would advance monies in stages as the building progressed. According to the payment schedule incorporated in the agreement, Gebco and Lion would certify monthly the work completed and costs incurred. The bank would then advance 90% of the requested amount, reserving the right to hold the remainder in escrow to satisfy any outstanding indebtedness associated with the construction. The agreement contained a provision reciting, "Lender will ... lend ... the sum of $85,000.00 to be used only for the payment of labor and material costs in the construction of the Improvements...." The following paragraph of the agreement states, "All monies borrowed or advanced ... will be applied entirely and exclusively for the payment of the labor and materials used in the construction...." The contract documents also required that before disbursement of the final installment, Gebco was to produce "(properly) executed Release of Liens evidencing payment for all labor done and materials delivered in connection with the proposed Improvements." The bank was given the option of advancing the sums directly to subcontractors.
Construction began on the following month and in April 1975 the appellant, Monroeville Electric Co., Inc.,*fn1 began performance of its subcontract to install the electrical equipment in the building. During the autumn of that year, various subcontractors, including Monroeville Electric, encountered delays in payment and were referred by Gebco to the bank. Although bank officials did not guarantee payment of the subcontractors' bills, they stated that sums adequate to compensate the subcontractors were being held and would be disbursed when the project was completed. Even though no independent agreements were undertaken by the bank, the subcontractors returned and completed their work.
Apparently in November 1975, after Equibank had advanced a total of $59,580, the bank held Gebco in default.*fn2 Nevertheless, it was after that date that some of the subcontractors continued to work on the apartment building. Invoking the terms of the construction loan agreement, the bank refused to advance further funds to Gebco, and retained $25,420.
In February 1977 Gebco filed a Chapter X petition for reorganization, and in September of that year, pursuant to an order of the bankruptcy court, the trustee sold the completed apartment building for $120,000. The mortgage was paid in full, and in the following month the trustee brought suit against the bank to recover the $25,420 of undisbursed funds. The bank disclaimed any interest in the money and invoked Bankruptcy Rule 719*fn3 to join a number of subcontractors, including Monroeville Electric, as parties to the litigation.
The bankruptcy judge held that under § 70(a) of the Bankruptcy Act, 11 U.S.C. § 110 (1976), the trustee succeeded to Gebco's right under the construction loan agreement to collect sums due from the escrow fund held by the bank. The judge concluded that the subcontractors' claims failed because Equibank had no legal obligation under the terms of the loan agreement to pay the money to the subcontractors. Although the agreement gave Equibank the right to protect the security position of its mortgage by paying subcontractors directly, the bank had not exercised its prerogative. Nor did Equibank enter into separate agreements with the subcontractors or induce them to complete their work. The bank, therefore, was directed to turn over the money to the trustee.
The subcontractors appealed the decision to the district court, which affirmed without opinion. Only one subcontractor, Monroeville Electric, has appealed to this court.
It is important at the outset to clarify the positions of the parties to this litigation. Equibank concedes that it is not entitled to the money but is merely a stakeholder. The dispute, then, is between the trustee, standing in the shoes of the owner Gebco, and the subcontractor. When asserting a right of action against another in circumstances such as those present in this case, the trustee has no greater rights than the bankrupt had. Mutual Life Trust Insurance Co. v. Wemyss, 309 F. Supp. 1221, 1231 (D.Me.1970); 4A Collier on Bankruptcy P 70.28, at 385 (14th ed. 1978). Furthermore, "any defense, legal or equitable, which might have been raised against the bankrupt may be raised against the trustee." Id.; see In re Jacoby, 138 F.2d 42, 45 (3d Cir. 1943).
In claiming entitlement to the fund, the trustee contends on appeal that the bank did not create the fund for the benefit of the subcontractors but merely suspended payment to Gebco when it defaulted. Further, says the trustee, the $25,420 fund was not created until after the sale had taken place and Equibank's mortgage of $85,000 was satisfied in full.
Pennsylvania law concededly is applicable here. The trustee asserts that some guidance and support for his position may be found in Demharter v. First Federal Savings & Loan Association, 412 Pa. 142, 194 A.2d 214 (1963), but we believe that case is inapposite. There, subcontractors claimed that the bank had been under an equitable obligation to pay construction money directly to the subcontractors as the work progressed rather than to the owner. They objected to the fact that the bank had continued to advance funds to the owner after being notified by some of the subcontractors that they were owed substantial amounts by the owner. Arguing that the bank had no authority under the loan agreement to disburse funds to the owner, the subcontractors asked for damages from the bank in an amount equal to that given to the owner. The court, however, found in favor of the bank since it was not obligated under the loan agreement to pay materialmen.
The relationship between the bank and the subcontractors here is different. Monroeville Electric is not challenging the propriety of the advances Equibank actually made to Gebco before it was held in default. Rather, Monroeville Electric is asserting rights to an unreleased amount of money earmarked for the benefit of subcontractors. Monroeville Electric's interest in that fund is not affected by Demharter's holding that the loan agreement justified the bank's payments to the owner before default.
Closer to the facts of the case at hand is Kreimer v. Second Federal Savings and Loan Association, 196 Pa.Super. 644, 176 A.2d 132 (1961), where a materialman sought to recover from a fund held by the lender. There was a no-lien contract in that case and the construction loan agreement contained a provision that the bank would pay "directly to those furnishing labor" and materials. The Pennsylvania Superior Court held that a subcontractor, rather than the bankrupt general contractor, was entitled to the funds in the possession of the mortgagee bank. The court said that the subcontractor had a direct interest as a third party beneficiary and the bankrupt's interest was restricted to that portion of the fund remaining after the subcontractor's obligation was satisfied.
Because Equibank was not obligated to pay directly to subcontractors, the case for application of a third party beneficiary status is not as obvious as it was in Kreimer. Nevertheless, as we will show, there is ample basis for concluding that the parties to the loan agreement understood that a fund would come into existence and intended it to be for the benefit of the subcontractors.
The trustee contends on appeal that the fund was created only after all work was completed and the property sold, but that argument is not persuasive. It cannot be reconciled with the testimony of Gebco's own general manager, Robert E. Barrett, before the bankruptcy judge. Barrett maintained that it was his understanding from conversations with bank officials that all the money would be paid out when the construction was completed. A bank official also testified he had told the owner of Monroeville Electric that after "the building was completed ... there would be distribution of the funds that were remaining." It was the common understanding of the parties to the loan agreement, then, that the fund existed before the sale of the property.
The terms of the construction loan agreement quoted above make it clear that the proceeds were to be used for a specific purpose payment of subcontractors and materialmen on the project. In fact, the amount of each advance was determined by the actual cost of labor and materials. Under the provisions of the agreement, the loan was not to be used to pay for costs other than these. That Gebco understood this to be the intent of the agreement is established by the explanation of its general manager at the bankruptcy hearing. Barrett testified that the money remaining in the fund "was earmarked as far as Gebco was concerned" for the payment of the subcontractors.
An arrangement such as this was certainly not inequitable given that Gebco had taken the appropriate steps to deny the subcontractors their right to file mechanic's liens. The fact that subcontractors were not expressly named as third party beneficiaries is not determinative since the intent of the parties is clear from the language of the agreement taken as a whole. See Commonwealth v. Great American Indemnity Co., 312 Pa. 183, 167 A. 793 (1933); cf. Gee v. Eberle, 279 Pa.Super. 101, 420 A.2d 1050, 1055-56 n.4 (1980) (express provision of agreement disclaimed intent to create third party beneficiary); R. M. Shoemaker v. Southeastern Pennsylvania Economic Development Corp., 275 Pa.Super. 594, 419 A.2d 60, 63 (1980) (same).
The record demonstrates, therefore, that the parties to the agreement understood that the subcontractors were third party beneficiaries of the undisbursed funds. Spires v. Hanover Fire Insurance Co., 364 Pa. 52, 56-57, 70 A.2d 828, 830 (1950). Our agreement with the bankruptcy judge that the evidence did not establish a separate contract for Monroeville to complete its work for the account of the bank is thus not determinative. Rather it is significant that he found that the bank informed subcontractors that "it would pay the money over to Gebco in accordance with the construction loan agreement." This determination was supported by testimony that confirmed the understanding of Gebco and the bank and brought home to the subcontractor, if it was not already aware of it, that a fund was being held for its benefit.
Even if the parties to the loan transaction had not clearly intended to benefit a third party, Monroeville Electric contends that it should recover as an equitable assignee under the terms of the loan agreement. See Warrington v. Mengel, 41 Pa.Super. 362 (1909). The subcontractor relies on the fact that the loan agreement not only required Gebco to secure a no-lien stipulation from its general contractor, but also required Gebco, before the final payment was made, to produce a release of liens "evidencing payment for all labor done and materials provided." Although this provision was in the main to benefit the bank by enabling it to protect the priority of its mortgage, Monroeville Electric argues that the clause also constitutes an undertaking by the owner to see that all subcontractors were paid.
At the time the work was completed, Gebco could not have produced a release of liens because of the outstanding balances due the subcontractor Monroeville Electric. We are not unmindful of the fact that the no-lien contract prevented the subcontractor from perfecting a valid mechanic's lien, but the requirement of a release substantially benefited Monroeville Electric. The subcontractor could assume that the bank would not disburse the funds without being assured the materialmen had been paid. But see B. Bornstein & Son, Inc. v. R. H. Macy & Co., 278 Pa.Super. 156, 420 A.2d 477 (1980).
By undertaking to provide a release of liens, Gebco assumed an implied obligation to the subcontractors. The provision was written at the insistence of the bank for its benefit, and as a practical matter, it is unlikely that the loan would have been granted without that condition. Thus in return for assuming this obligation, Gebco received substantial consideration in the form of a loan. The trustee, standing in Gebco's shoes, is in no position to repudiate the equitable obligation undertaken at the time the loan was negotiated. The fact that the mortgage was later paid does not release the equitable charge attached to the funds in the bank's hands. That fund was encumbered in favor of the subcontractor who had a superior right to it over the owner or its trustee.
In Warrington v. Mengel, supra, the court held that a similar arrangement constituted an equitable assignment. The work having been completed, the court said the implied obligation of the defendants "arising out of the terms and conditions upon which they held the money, in which they allege they had no personal interest, therefore became operative and they are bound thereby." Id. at 366. In a case analogous to the one at hand, the Court of Common Pleas of Allegheny County in All-State Industries, Inc. v. H. E. Stoudt & Sons, Inc., 126 Pitt.Legal J. 293, 9 Pa. D. & C.3d 552 (1978), held that an escrow fund was held by a bank for the benefit of subcontractors. Similarly, we conclude that an equitable charge was placed upon the mortgage funds in the hands of the bank in favor of the subcontractor Monroeville Electric which has a superior right to the money over that of the trustee.
As an additional theory of recovery, Monroeville Electric maintains that Equibank and Gebco should not profit at the subcontractor's expense. In a recent opinion, the Pennsylvania Superior Court held that a constructive trust may be imposed to avoid unjust enrichment in similar circumstances. Gee v. Eberle, supra.
In Gee, the original owner and lender had entered into a construction loan agreement similar to the one between Gebco and Equibank: advances were made periodically to cover 90% of the cost of labor and materials to date. The lender could, but was not obligated to, make payments directly to the subcontractors. The lender foreclosed before all the funds were advanced, had the project completed, and then purchased the property at a sheriff's sale. The subcontractors sought to recover from the unexpended loan fund.
The court found that the lender in Gee had gained the benefit of possession of the property improved through the subcontractors' efforts. Because the subcontractors had not been compensated, however, the court concluded that the lender could not, "in good conscience retain the beneficial interest" it had acquired. Id. at -- -, 420 A.2d at 1056, quoting Buchanan v. Brentwood Federal Savings & Loan Association, 457 Pa. 135, 151, 320 A.2d 117, 126 (1974). Under those circumstances, the court held that the lender had been unjustly enriched.
In this case Equibank received a benefit when the entire mortgage was satisfied even though some funds were undisbursed. Had the owner not defaulted and the remainder of the fund been paid out, the subcontractors would have been compensated. As it was, however, the subcontractors were not paid and their efforts increased the value of the mortgaged property. It was on the sale of that improved property that Equibank received its benefit.
Gebco has also been enriched by the sale. The building had been estimated to cost approximately $86,000, but sold for $120,000. The profit on the sale would, of course, be enjoyed by Gebco's creditors. If that profit is increased by Gebco's failure to pay subcontractors who improved the property, however, the incremental benefit would constitute unjust enrichment.
The trustee on behalf of Gebco has not demonstrated a superior right to the fund over that of the subcontractor, but rather is in a less favorable position since Gebco's recovery would result in unjust enrichment. To avoid such a result, a constructive trust for the benefit of the subcontractor should be imposed on the fund in Equibank's possession. Gee v. Eberle, supra.
We conclude that Monroeville Electric could recover from the fund held by Equibank either as a third party beneficiary of the construction loan agreement, as an equitable assignee, or in order to avoid unjust enrichment to the bank or Gebco.
Accordingly, the judgment of the district court will be reversed and the case remanded for proceedings consistent with this opinion.
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Review/Theater; Spiritual Ties in 'Home and Away,' a Monologue
By STEPHEN HOLDEN
Published: July 24, 1991
In the second act of his gripping autobiographical monologue, "Home and Away," Kevin Kling tells of journeying to the Australian heartland where he experiences a spiritual awakening that is connected to aboriginal tribal beliefs in sacred ground and family ties.
"The aborigines' family tree," he remembers an Australian friend explaining, "is like vines running horizontally around the earth." When a pregnant woman feels the first kick of her unborn child, the spot on which she felt the kick is believed to be a point on a trail that extends latitudinally around the world. After the child is born, everyone else who kicked on that trail is considered a relative.
Another broader way of interpreting that teaching might be to say that all roads lead home. That is certainly the unstated theme of "Home and Away," the funny, finely honed solo theater piece that Mr. Kling is performing at the Second Stage. The play, which is directed by David Es bjornson, describes a series of surreally tinged true adventures that begin with Mr. Kling's childhood experiences in rural Minnesota and ripple in ever-widening circles as he travels to Spain, Czechoslovakia, Australia and Brazil.
The central image of the play, one that also reverberates outward as the narrator accumulates political insights and small spiritual jolts, is of being hit by lightning and surviving. Mr. Kling remembers being struck by lightning as a child, while helping his father build an airplane during a thunderstorm. Years later, after his father dies of cancer, he discovers that his uncles, grandfather and brother had all been hit by lightning and lived to tell of it. They are a family club.
On the surface, the experiences that Mr. Kling describes -- of Halloween trick-or-treating, playing games with his brother in church and learning how to stuff animals -- might seem to evoke a cozy Norman Rockwell-style vision of Americana. Yet many of those experiences have a life-or-death immediacy. The eccentric neighbor who gives trick-or-treaters sour Halloween pickles commits suicide. A fraternal breath-holding contest during a church service leaves him unconscious. A fellow Boy Scout's over-zealous efforts in taxidermy involve the trapping and asphyxiation of small animals.
The adult travel experiences Mr. Kling describes in the second act hark back to the childhood memories of Act I. During a trip to Czechoslovakia, he discovers that it is not the Czechoslovak Government but the American Government that has forbidden performances of his play. The realization resonates with his earlier description of a childhood operation and a doctor's lies. His father's mild objections to his artistic career find a sharper echo in Spain, where he meets a blind, homosexual dancer whose father had buried him in effigy, not for being gay but for being an artist.
If Mr. Kling's surrealistic linkage of events has something in common with Spalding Gray's view of the world (especially in "Swimming to Cambodia"), his style and point of view are very different. Mr. Kling's lean, terse storytelling has a faintly folksy ring. His vignettes have plenty of dark corners, but they don't aspire like Mr. Gray's to capture the millennial anxieties of our time. The world is not imminently coming apart.
The personality that Mr. Kling presents is ingenuous without seeming in any way naive. Where other monologuists display sophisticated, multi-faceted personalities, Mr. Kling projects an intense boyish enthusiasm. But as emotional as his tone becomes, he never claws at the edges of desperation as Mr. Gray, David Cale and John O'Keefe (who have also done solo shows at the Second Stage) sometimes do.
"Home and Away" ultimately rejoices in the strange interconnectedness of bizarre phenomena. Many years after learning to stuff animals, Mr. Kling, in Brazil, finds himself driving through a village whose residents set up card tables on the side of the road and attempt to sell him stuffed, mounted animals with large blue-glass eyes. It is one of many moments, he suggests, in which being away is really the same thing as being home. Only the geography changes. Home and Away Written and performed by Kevin Kling; directed by David Esbjornson; set design, Mr. Esbjornson; lighting design, Frances Aronson; sound design, Mark Bennett; hair design, Antonio Soddu; production stage manager, Crystal Huntington. Presented by Second Stage Theater, Robyn Goodman and Carole Rothman, artistic directors. At Broadway and 76th Street.
Photo: Kevin Kling in "Home and Away" at the Second Stage. (New York Shakespeare Festival)


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What is the oldest country in the world? This question has no a unique and simple answer. In fact, the parameters are quite different and they are still being discussed. However, we can tell you about several old countries that are considered the oldest. Mesopotamia, China, India and Egypt are just some of the candidates. These countries really are among the world's oldest countries. We will tell you more about each one of them.
World's Oldest Countries
Egypt – still one of the most interesting tourist destinations. Its ancient charm keeps attracting people from all over the world. This country is about 5,000 years old.
Perhaps it is even older, but the historical proves we have date back to 3,100 BC. That was the time when Narmer (the Pharaoh) unified the Egyptian regions. Egypt went through different periods and types of rule. It has even been conquered by the British, but finally, in 1922 in gained its independence.
Mesopotamia – (today it is Iran) – is also among the oldest countries in the world. Some of the most prominent dynasties ruled this country. Today, this is Iran, which was constitutes as a country in 1979.
China – definitely one of the world's oldest countries and famous for its ancient wisdom. China was founded by the Dynasty of Xia. The Quin Dynasty succeeded in unification of Chinese areas and the country, as we know it today, is almost the same (in terms of area) as it used to be back then. Chinese ancient philosophers are still being read today. We know that some agriculture we use today came from China. Gunpowder also came from China. You can read more about Marco Polo and his adventures to learn more about this part of the world.
India – another very old country with tradition and plenty of old customs that are still alive. India is a little different in terms of territory, but the very essence of this culture hasn't changed a lot. Spirituality and inner-peace are synonyms for Indian religion and lifestyle. There are many poor people in India, but on the other had, some of the wealthiest men in the world live in India. However, there great things to experience there.
Vietnam – nearly 2900 years old. It had a hard time during the twentieth century, but this country has survived and preserved its long tradition.
Those were some of the world's oldest country. If you are interested in history studies, these are the right destinations for you.


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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA THIRD APPELLATE DISTRICT (Yuba)
October 17, 2011
THE PEOPLE, PLAINTIFF AND RESPONDENT,v.JAMES ARCHIE EUGENE MOORE, JR., DEFENDANT AND APPELLANT.
(Super. Ct. No. CRF10184)
P. v. Moore
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
Defendant James Archie Eugene Moore, Jr., hit his victim in the head with a wooden board and then kicked him after the victim fell to the ground. In the days following the attack, the victim went to the emergency room with migraines, left, and then returned to the hospital where doctors diagnosed him with a cranial bleed. The victim stayed in the hospital for two weeks and ran up a bill that totaled $13,777.38, which Medi-Cal*fn1 covered, plus a $90 share of medical costs that the victim owed.
A jury found defendant guilty of assault with a deadly weapon and assault by means of force likely to produce great bodily injury. The court sentenced him separately on the two convictions, for an aggregate term of 12 years in prison. The court additionally ordered defendant to pay $90 in restitution to the victim for his share of his medical costs and $13,777.38 in restitution to Medi-Cal for the amount of the victim's medical costs Medi-Cal covered. The court ordered that both amounts would accrue 10 percent interest starting March 28, 2010, the day of the crime.
Defendant appeals, contending substantial evidence did not support the conviction of assault by means of force likely to cause great bodily injury and, alternatively, Penal Code*fn2 section 654 applies and requires the sentence for that assault to be stayed. Additionally, defendant asserts the trial court improperly ordered $13,777.38 in restitution to Medi-Cal, that restitution in this amount should not be ordered to the victim, and March 28, 2010, is an improper date for interest to begin accruing on both the restitution amounts.
Although we conclude that substantial evidence supports the conviction of assault by means of force likely to produce great bodily injury, we agree with defendant that section 654 applies and the sentence on the second assault conviction must be stayed. With regard to his contentions pertaining to restitution and interest, we conclude the trial court's orders were improper because defendant should have been ordered to pay all restitution to the victim, not Medi-Cal, and interest could not begin accruing until a financial loss occurred because of defendant's crimes. Accordingly, we will affirm the convictions but remand for resentencing and modification of the restitution order.
The facts of this case are rather simple: On March 28, 2010, defendant and Christopher Payne were at Lonnie Johnson's house where defendant hit Payne in the head with a wooden board and then kicked him after he fell to the ground. After the attack, defendant said Payne "'deserved it'" as Payne was "out cold" on the ground. Defendant got in a pickup driven by his father and departed.
The only witnesses to defendant's attack on Payne were Cheryl Welch, who saw both the blow to the head and the kick, and Johnson, who saw only the kick.
A few days before the attack, defendant explained to Michael Price that he intended to "physically harm" Payne.
Assault By Means Of Force Likely To Cause Great Bodily Injury
Defendant first contends the jury's verdict on aggravated assault by means of force likely to cause great bodily injury must be reversed because "there was no substantial evidence that [defendant] kicked the victim using force likely to cause great bodily injury." To support this contention, defendant points to the lack of evidence pertaining to the force, placement, and effect of the kick. We disagree.
Under section 245, subdivision (a)(1), it is a crime to assault another with "any means of force likely to produce great bodily injury." "[B]ecause the statute focuses on use of . . . force likely to produce great bodily injury, whether the victim in fact suffers any harm is immaterial. [Citation.] That the use of hands or fists [or feet] alone may support a conviction of assault 'by means of force likely to produce great bodily injury' is well established." (People v. Aguilar (1997) 16 Cal.4th 1023, 1028; see 1 Witkin, Cal. Crim. Law (3d ed. 2000) § 37, pp. 660-661.) For a defendant to be convicted of this crime, the evidence presented must be "reasonable, credible, and of solid value such that a reasonable trier of fact could find the defendant guilty beyond a reasonable doubt. [Citations.] Reversal [for lack of substantial evidence] is unwarranted unless it appears 'that upon no hypothesis whatever is there sufficient substantial evidence to support [the conviction].'" (People v. Bolin (1998) 18 Cal.4th 297, 331, citing People v. Redmond (1969) 71 Cal.2d 745, 755.)
As the record shows, "[defendant] hit [the victim] over the head with [a board]. [The victim] went down. [Defendant] kicked [the victim]." Defendant argues that "given this testimony, there was no reason to believe [defendant]'s kick did any injury to the victim" and "[t]he People presented no evidence regarding the force of the kick, which leg (the dominant leg or the non-dominant), or where the kick was directed, or where the kick fell." First of all, this is of no consequence because "whether the victim in fact suffers any harm [from the kick] is immaterial." (People v. Aguilar, supra, 16 Cal.4th at p. 1028.) Secondly, the kick did not occur in isolation. Defendant kicked the victim as part of an attack in which defendant first hit the victim in the head with a board, then kicked the victim after he fell to the floor, and then said, "'he deserved it.'" It was perfectly reasonable for the jury to conclude that defendant kicked with force likely to cause great bodily injury to the victim.
Section 654
The trial court held that section 654 does not apply here because "[d]efendant entertained several criminal objectives[.] [W]hen he hit the victim with the piece of wood[,] [h]e intended to disable and render him helpless to act in his own defense. When he kicked the unconscious victim while wearing boots, he intended to apply force likely to commit great bodily injury. There was sufficient time between the acts for [d]efendant to pause and reflect upon what he was doing. A course of conduct divisible in time, even if directed to one objective, may give rise to multiple violations and punishment." Because the trial court found section 654 inapplicable, defendant was sentenced for both assault with a deadly weapon and assault with force likely to cause great bodily injury.
Defendant contends his "punishment [for assault by means of force likely to cause great bodily injury] should have been stayed pursuant to . . . section 654" because he did not have separate objectives when he hit the victim in the head with the board and kicked him. Agreeing with this argument, we will remand the case for resentencing.
Section 654 provides in relevant part: "[a]n act or omission that is punishable in different ways by different provisions of law shall be punished under the provision that provides for the longest potential term of imprisonment, but in no case shall the act or omission be punished under more than one provision." In applying this section, our Supreme Court stated, "[w]hether a course of conduct is divisible and therefore gives rise to more than one act within the meaning of section 654 depends on the intent and objective of the actor. If all of the offenses were incident to one objective the defendant may be punished for any one of such offense, but not for more than one." (Neal v. State of California (1960) 55 Cal.2d 11, 19.) "Whether the defendant entertained multiple criminal objectives is a factual question for the trial court, and its findings on this question will be upheld on appeal if there is any substantial evidence to sustain them." (People v. Nubla (1999) 74 Cal.App.4th 719, 730.)
One case which applied the rule announced in Neal is People v. Latimer (1993) 5 Cal.4th 1203. In that case, a defendant kidnapped his victim, drove her to the desert, and raped her. (Id. at p. 1205.) Ultimately, our Supreme Court held that section 654 applied, explaining "[a]lthough the kidnapping and the rapes were separate acts, the evidence does not suggest any intent or objective behind the kidnapping other than to facilitate the rapes." (Latimer, at p. 1216.) In short, because the kidnapping was incident to the defendant's objective of rape, he could be sentenced only for rape and not for kidnapping. (Ibid., applying Neal v. State of California, supra, 55 Cal.2d at p. 19.)
According to the trial court's findings here, defendant had separate objectives when he delivered the blow to the victim's head and when he kicked the victim, because by the blow to the head defendant wanted to disable the victim from acting in his own defense, and by the kick he wanted to injure the victim. These objectives are not separate, however, for purposes of section 654. Rather, what is apparent from the record is that defendant had only a single objective, which was, as he told Price, to "physically harm" the victim. To achieve that objective, defendant hit the victim in the head with a board and then kicked him. Even according to the trial court's findings, defendant hit the victim in the head in order to achieve his ultimate objective of physically harming the victim, because the blow to the head was meant to disable the victim and render him helpless to act in his own defense -- in other words, to make it easier for defendant to physically harm him with a further attack. Viewed in this manner, the two separate crimes defendant committed are similar to the kidnapping and rapes in Latimer because they were committed incident to a single objective, with one crime committed for the purpose of facilitating the other.
The trial court also stated that it did not apply section 654 because defendant had "sufficient time between acts . . . to pause and reflect upon what he was doing." (See People v. Trotter (1992) 7 Cal.App.4th 363, 367-368 [holding section 654 did not apply where the defendant had time to reflect between the three shots he fired at a pursuing police officer].) The trial court, however, made this finding without any evidence showing the time that passed between the blow to the victim's head and the kick. In any event, as we have noted, the trial court essentially found that defendant committed the first assault in order to facilitate commission of the second assault. Such was not the case in Trotter, where the multiple shots were simply separate assaults, and one shot did not facilitate the next.
Because the trial court's findings actually show defendant had a single criminal objective for purposes of section 654, there was only one criminal act, and therefore the sentence for assault by means of force likely to cause great bodily injury must be stayed on remand.
The next issue pertains to the trial court's order for defendant to pay Medi-Cal $13,777.38 in restitution. Defendant argues that under section 1202.4, which requires the trial court to order a defendant to pay restitution to victims of crimes in which the victim suffers an economic loss, restitution to Medi-Cal is improper because Medi-Cal is not a direct victim of defendant's crimes. We, as well as the People, agree with this argument.
Our Supreme Court has held that for purposes of section 1202.4 medical providers and insurers that have furnished services to a victim of a crime may not receive restitution for those services because they are not "direct victims" of the crime. (See People v. Birkett (1999) 21 Cal.4th 226, 229.) Being the functional equivalent of an insurance agency because it covered the victim's medical costs, Medi-Cal was not the direct victim of defendant's crimes. Therefore, defendant could not be ordered to pay restitution to Medi-Cal for the expenses associated with his crime. Rather, he could be ordered to pay only "the individual or entity [he] had directly wronged." (Id. at p. 246, italics omitted.)
Furthermore, defendant contends he does not owe the victim anything beyond the $90 because the victim never suffered an economic loss from the $13,777.38 hospital bill Medi-Cal covered. As we will explain, section 1202.4 requires defendant to pay the victim both the $13,777.38 and the $90 in restitution because a defendant must compensate his victim for the total amount of damages he caused by his criminal actions.
In People v. Hove, supra, 76 Cal.App.4th at page 1266, a defendant, while driving under the influence of a controlled substance, crashed into a victim, thereby committing a crime. (Id. at p. 1268.) As a result of the crash, the victim was hospitalized and incurred hospital expenses in the amount of $286,565.92. (Id. at pp. 1268-1269.) Those expenses were covered by Medicare*fn3 and Medi-Cal. (Id. at p. 1269.) Applying section 1202.4, the trial court ordered the defendant to pay the victim the full $286,565.92 in restitution because "the [L]egislature intended that [the] defendant in a criminal matter pay for the total costs of the damages that that particular defendant caused." (Hove, at pp. 1269, 1273.) On appeal, Division Two of the Fourth District Court of Appeal affirmed the trial court's order, stating, "We . . . find the restitution order proper even though the victim had no direct economic losses, and even though the victim could conceivably profit from recovering restitution if defendant complies with the restitution order and if Medicare and/or Medi-Cal does not pursue reimbursement." (Id. at pp. 1272-1273.)
This case is directly on point. Accordingly, on remand the trial court must modify its restitution order to require defendant to pay all restitution to the victim.
Interest On The Restitution
At trial, defendant never objected to the date on which the court ordered interest on the restitution amounts to begin accruing. Defendant contends the court's order that he pay interest beginning March 28, 2010, the date of the crime, is "an unauthorized sentence because there was no evidence of any loss as of this date." On the other hand, the People contend defendant's "claim regarding the date the interest began accruing is . . . a challenge to the court's exercise of its discretion, and is forfeited by [his] failure to object at sentencing." Neither party's argument is particularly well-developed or supported by citation to authority. In the alternative, however, defendant argues we should review his interest claim because his defense counsel was ineffective when he failed to object at sentencing. Because we must review the merits of defendant's interest claim in assessing whether his attorney was ineffective, we turn to the merits of that claim.
Section 1202.4, subdivision (f)(3)(G) provides that restitution for financial losses caused by criminal conduct may include "[i]nterest, at the rate of 10 percent per annum, that accrues as of the date of sentencing or loss, as determined by the court." Plainly, under this statute, interest may begin to accrue only on the date the victim actually incurs a financial loss or on the date of sentencing.
Here, the victim did not incur any financial loss on March 28, 2010, as a result of defendant's crimes because the only financial loss for which the court ordered restitution was the hospital bills, and no hospital services were provided for the victim's injuries on that date. The date on which the first charges for hospital services were made is not reflected in the record. Nonetheless, it is clear that no hospital visit took place until March 31, 2010. Certainly, neither the $13,777.38 nor the $90 in hospital expenses were incurred before the victim actually visited the hospital. That being the case, there was no substantial basis for the court to order interest to begin accruing as of March 28, 2010, and no legitimate basis for defendant's trial counsel to fail to object to that date. Accordingly, we will remand the matter to the trial court to determine a proper date for interest to begin accruing on the $13,777.38 and the $90 losses consistent with the governing statute.
Defendant's convictions are affirmed but the case is remanded to the trial court to resentence defendant, with the term of imprisonment for assault by means of force likely to produce great bodily injury stayed pursuant to section 654. On remand, the trial court shall also modify its restitution order to make all restitution payable to the victim and shall determine a proper date for interest to begin accruing on the restitution amount.
We concur: NICHOLSON , Acting P. J. MAURO , J.
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November 1, 2010
Petitioner, United States of America, acting on behalf of the government of Bermuda, seeks the extradition to Bermuda, an overseas territory of the United Kingdom, of Jahmel Glen Blakeney, a citizen of the United States and Bermuda ("Blakeney" or "defendant"). This request is made pursuant to 18 U.S.C. § 3184 and the Extradition Treaty Between the Government of the United States of America and the Government of the United Kingdom of Great Britain and Northern Ireland. See Compl. Ex. A. Blakeney is wanted in Bermuda on charges of attempted murder relating to a shooting of two individuals. Defendant opposes extradition, arguing a lack of probable cause to believe that he committed the charged crimes. Defendant's Motion to Dismiss ("Def. Mem."), Docket Entry 9. More specifically, Blakeney contends that the evidence fails to establish that he was a principal in the attempted murders, as opposed to merely an accessory after the fact. Id.
Neither side requested an evidentiary hearing. Instead, they seek a ruling based on the papers submitted. For the reasons stated below, I conclude that the government's evidence establishes probable cause and that extradition is warranted.
The Treaty
In support of its request for extradition, the government has submitted a 1977 Extradition Treaty and a 1986 Supplementary Extradition Treaty (collectively, the "Treaty").*fn1 Compl. Ex. A. During a telephone conference held on October 6, 2010, I inquired about the applicability of a 2003 Extradition Treaty with Great Britain and Northern Ireland. See S. Treaty Doc. No. 108-23, available at 2003 WL 23527406. By letter dated October 12, 2010, the government states, and defendant agrees, that "Bermuda is not a party to" the more recent treaty.*fn2 Docket Entries 12, 13. Although the government's response is conclusory, the differences in the two treaties are inapplicable for the most part here and applying either treaty would lead to the same result.*fn3
The Treaty provides for extradition upon a showing that the requested individual has been charged with or convicted of an extraditable offense and of probable cause to support the charge. Treaty Arts. III, IX. The defense raises no arguments concerning any technical defects related to the extradition request. See Def. Mem. The only issue to be decided, then, is whether the government of Bermuda has presented sufficient evidence for a finding of probable cause.
At approximately 9:30 p.m. on November 13, 2009, Blakeney and his girlfriend were at the Southside Cinema, a movie theater in St. George, Bermuda. Clarke Aff. ¶ 43. Blakeney is a member of the Parkside gang. Id. ¶ 33. At the movie theater, defendant saw Shakai Minors, one of the victims, who is a known member of a rival gang, 42nd Crew. Id. ¶¶ 33, 43. In November of 2009, the gangs were in the midst of a violent feud involving multiple shootings resulting in deaths and serious injuries. Id. ¶ 34.
After seeing Minors, Blakeney contacted Sanchey Grant, his co-defendant on the charges in Bermuda. Id. ¶ 46. Records indicate that Blakeney and Grant spoke by telephone six times between 9:35 and the time of the shooting. Id. After calling Grant, Blakeney drove his girlfriend home, where Grant and Blakeney met at approximately 10:00 p.m. Id. ¶¶ 43, 44. During the drive home, Blakeney's girlfriend, Jalicia Crockwell, sent several text messages to Shaleek Daniels, the girlfriend of another Parkside gang member, in which she suggested that Blakeney was going to meet up with his fellow gang members and do something to a 42nd Crew member he saw at the movie theater. Id. ¶ 44. Excerpts from the text messages read as follows:
Crockwell: "Well um on my way back town . . . pissed n the movie aint even sold out" (omission in original) . . .
Crockwell: "He saw some guy n just ran out . . ."
Daniels: ". . . he saw somebody in thur and ran out, see these lot cnt go places like dat by themselves . . . who was the g u y?"
(second omission in original)
Crockwell: "IDK [I don't know] but d guy was with his girl now h[e']s . . . speedn back town 2 get them boys" . . .
Crockwell: ". . . he called some . . . guy . . ."
Daniels: "Keep his ass inlide girl, it aint even worth it, his all the way down the country and U lots back town"
Crockwell: "Back town already . . . his rushin back to fck dis shit" Daniels: "Keep him in Lic girl . . ." . . .
Daniels: "So who was the guy?"
Crockwell: "Idk girl n his ass is gne get them boys 2 go b[a]ck down there[.] his from 42[,] that's all I kno[w]." . . .
Clarke Aff. ¶ 44.
Minors and Renee Kuchler, the second victim, left the theater at approximately 11:30 p.m. Id. ¶ 13. While they were seated in Minors' car, "a lone man approached the vehicle, stood immediately outside the driver's door and discharged several shots from a hand gun." Id. Both Minors and Kuchler suffered multiple gun shot wounds but survived. Id. ¶ 42.
The victims and witnesses described the shooter as wearing a baseball hat, scarf, and jacket. Id. ¶¶ 41, 83(k). They observed the shooter run behind a nearby church; shortly thereafter, a black car was seen coming from behind the church. Id.
The police instituted a road block near the area of the shooting, blocking off the only road affording access to or from the crime scene. Id. ¶¶ 16, 47. At approximately 2:00 a.m. on November 14, 2009, a black Kia Sportage approached the road block but failed to heed instructions to stop, instead accelerating away from the police. Id. ¶¶ 47, 48. Police pursued the vehicle, causing it to stop a short distance away. Id. ¶ 48. Blakeney was the driver of the vehicle and Grant was in the passenger seat. Id. ¶ 51. Both men were arrested. Id. ¶ 52.
Suspecting that Blakeney or Grant might have thrown a gun or other incriminating evidence from the window of the car, the police searched the area along the road where Blakeney was driving. Although they did not discover anything at first, at 7:00 a.m., the police recovered a 9mm Beretta pistol near the road where Blakeney had been driving. Id. ¶ 53. A ballistics analysis established that the bullets removed from the victims were fired from the recovered Beretta. Id. ¶¶ 73, 74. In addition, the hands of both Blakeney and Grant tested positive for "component particles consistent with Gun Shot residue." Id. ¶¶ 56, 57. There were also component particles consistent with gun shot residue on Grant's jock strap, on various items seized from Blakeney's car, including a jacket and a baseball cap, and on various areas in the car, including the steering wheel and hand brake.*fn5 Id. ¶¶ 58-72.
Grant has remained in custody since his arrest, while Blakeney was released on bail. Clarke Aff. ¶ 20. Blakeney was required to surrender on December 12, 2009, but failed to appear. Id. A police investigation revealed that Blakeney fled Bermuda for the United States on November 30, 2009. Id. Defendant Blakeney was arrested in the United States pursuant to a warrant issued on June 7, 2010 and first appeared before the court on June 10, 2010. Docket Entries 2, 4. During a status conference held on August 25, 2010, Blakeney declined to waive extradition. Docket Entry 8.
I. Scope of Extradition Proceedings
The scope of any extradition proceeding is narrow and rests within the sound discretion of the presiding judge. Jhirad v. Ferrandina, 536 F.2d 478, 484 (2d Cir. 1976). See also Charlton v. Kelly, 229 U.S. 447, 461 (1913). The court's role is limited to determining whether the requesting country has presented sufficient evidence to warrant a finding of probable cause to believe that the requested individual has committed the offense charged. See Charlton, 229 U.S. at 449. "An extradition hearing is not the occasion for an adjudication of guilt or innocence." Melia v. U.S., 667 F.2d 300, 302 (2d Cir. 1981).
The rules of evidence that govern at trial are not applicable in extradition proceedings. Hearsay statements of witnesses summarized in the affidavit of a foreign official are admissible and may be sufficient to support a finding of probable cause.*fn6 See Simmons v. Braun, 627 F.2d 635, 636 (2d Cir. 1980); Afanasjev v. Hurlburt, 418 F.3d 1159, 1162 (11th Cir. 2005) (affirming probable cause finding based on unsworn indictment summarizing witness statements); Bovio v. U.S., 989 F.2d 255, 259-61 (7th Cir. 1993) (affirming probable cause finding based on investigator's affidavit); Emami v. U.S. Dist. Ct. for the N. Dist. of Cal., 834 F.2d 1444, 1450-51 (9th Cir. 1987) (affirming probable cause finding to extradite for insurance fraud based on prosecutor's sworn affidavit); In re Extradition of Skaftouros, 643 F. Supp. 2d 535, 548 (S.D.N.Y. 2009); In re Ryan, 360 F. Supp. 270, 273 (E.D.N.Y. 1973) ("A determination of probable cause in an extradition proceeding may rest entirely upon hearsay."). Indeed, the Supreme Court has recognized that a court may order extradition based upon "unsworn statements of absent witnesses." Collins v. Loisel, 259 U.S. 309, 317 (1922). Nonetheless, a court must assess the evidence and examine the requesting country's submissions closely to ensure that any hearsay bears indicia of reliability sufficient to establish probable cause. Gill v. Imundi, 747 F. Supp. 1028, 1041 (S.D.N.Y. 1990) (recognizing that an extradition court has the "authority and discretion to go beyond the face of the government's affidavits for purposes of determining credibility or reliability"). See also In re Extradition of Singh, 170 F. Supp. 2d 982, 1023 (E.D. Cal. 2001) ("[T]he extradition judge makes credibility determinations as to the competence of the evidence supporting probable cause."); U.S. v. Fernandez-Morris, 99 F. Supp. 2d 1358, 1366 n.7 (S.D. Fla. 1999) ("Where a request for extradition is supported by an affidavit, recital of sufficient underlying facts is necessary if a magistrate judge is going to perform his judicial functions and not act merely as a rubber stamp.").
Courts have denied extradition where the requesting country's submissions were merely conclusory or otherwise unreliable. See, e.g., In re Ribaudo, 2004 WL 213021, at *5-7 (S.D.N.Y. Feb. 3, 2004); In re Extradition of Strunk, 293 F. Supp. 2d 1117, 1139-40 (E.D. Cal. 2003) (noting that "[w]hile the Philippines is not required to submit all their evidence against the extraditee with a request for extradition, the lack of probable cause connecting Strunk to the crime is highlighted by the fact that corroborating evidence which could have bolstered the case is missing"); Fernandez Morris, 99 F. Supp. 2d at 1368-69. Although Bermuda is not required to produce all of its evidence against the defendant at the extradition hearing, see Austin v. Healey, 5 F.3d 598, 605 (2d Cir. 1993), it must provide proof, with sufficient indicia of reliability, to establish probable cause to believe that Blakeney committed the crimes charged. See Afanasjev, 418 F.3d at 1162 (rejecting challenge to extradition where foreign government submitted one hundred six page indictment that, although unsworn and comprised largely of hearsay, provided a "detailed account of [defendants'] alleged criminal activities . . . [and] summarized statements made by victims, employees . . ., and other witnesses"); Emami, 834 F.2d at 1447 (affirming extradition where foreign prosecutor's sworn affidavit included "fifty-two pages of detailed summaries of statements made by former employees and patients" of defendant); Sacirbey v. Guccione, 2006 WL 2585561 (S.D.N.Y. Sept. 7, 2006) (upholding decision to grant extradition where German government provided sworn affidavits of three individuals with firsthand knowledge of the defendant's alleged criminal activities), rev'd on other grounds, 589 F.3d 52 (2d Cir. 2009); In re Extradition of Waters, 2003 WL 23185666, at *4 (E.D.N.Y. Nov. 24, 2003) (granting extradition request based upon proffer that included sworn statements from the victims and a law enforcement memorandum with a detailed statement by a co-defendant).
II. Probable Cause
To support an extradition request, the prosecution need only meet the relatively modest burden of demonstrating probable cause. In determining whether probable cause has been established, a court must consider the "totality-of-the-circumstances." Illinois v. Gates, 462 U.S. 213, 238 (1983). Here, the Treaty provides that "[p]robable cause means . . . there is sufficient evidence to warrant a man of reasonable caution in the belief that . . . an offense has been committed by the accused.*fn7 Supp. Treaty Art. 2. See also Extradition of Atta, 1988 WL 66866, at *4 (E.D.N.Y. June 17, 1988) (defining probable cause as "evidence sufficient to cause a person of ordinary prudence and caution to conscientiously entertain a reasonable belief of the accused's guilt") (internal quotation marks omitted). Where the government relies on an affidavit containing hearsay to establish probable cause, a court must "make a practical, common-sense decision whether, given all the circumstances set forth in the affidavit before [it], including the 'veracity' and 'basis of knowledge' of persons supplying hearsay information, there is a fair probability" that the defendant has committed the crime charged. Gates, 462 U.S. at 238.
A. The Attempted Murder Charges Against Blakeney
The government of Bermuda charged Blakeney with two counts of attempted murder under Section 289(a) of the Criminal Code of Bermuda. Section 289(a) states that "[a]ny person who attempts unlawfully to cause the death of another person is guilty of a felony, and is liable to imprisonment for twenty years." Clarke Aff. Ex. 3. Under Bermudian law, an accessory to a crime may be charged as a principal.*fn8 Section 27 of the Criminal Code provides that "every person who does any act . . . for the purpose of enabling or aiding another person to commit the offence; . . . who aids another person in committing the offence; [or] who counsels or procures any other person to commit the offence" may be charged with actually committing it. Id.
In her affidavit, the prosecutor states that "the Crown must prove that an act was done which was more than merely preparatory to the offence of Murder" and "that there was intent to kill." Clarke Aff. ¶¶ 77, 78. Moreover, "the Crown must prove that the person charged with the offence either did the act or enabled, aided, abetted, counseled, or procured another person to commit the offence." Id. ¶ 79. The prosecutor contends that the evidence establishes probable cause to believe that Blakeney committed the offense of attempted murder either because he was the shooter or because he enabled, aided, abetted, counseled or procured the shooter to commit the offense. Id. ¶ 80.
B. Analysis
The government's proof meets the limited threshold of probable cause and is sufficient to support extradition. First, the Bermudian prosecutor has provided a detailed statement of the evidentiary support for the facts alleged in her affidavit, identifying the witnesses and police officers who would testify in support of the prosecution's case and summarizing the testimony each would provide. See Clarke Aff. ¶¶ 8, 81-83; see also Facts supra. Moreover, the witness statements are persuasively corroborated. Ballistics reports indicated that the bullets removed from the victims were fired from the gun recovered on the road where Blakeney's car had recently driven, and that Blakeney and Grant both had "component particles consistent with gun shot residue" on their hands.*fn9 In addition, telephone records show several calls between Blakeney and Grant during the two hours that elapsed between the time Blakeney saw the victims and when they were shot. The text messages sent and received by Blakeney's girlfriend's, quoted in substantial part above, see also Clarke Aff. ¶ 44, provide additional corroborative evidence that is particularly incriminating.
Defendant has not submitted any evidence in opposition to the government's proof. Defendant does, however, raise several questions about the reliability of the government's evidence. Def. Mem. 3-4. For example, Blakeney notes that the government's proffer omits anything about the nature of the telephone calls between Blakeney and Grant and fails to explain why any such calls would be necessary if, as the government contends, Blakeney was working with Grant on the shootings. Def. Mem. 3. As another example, Blakeney complains about the vagueness of some of the prosecutor's statements -- a "short while" after the shooting, a "black car" was seen. Id. Defendant's contentions, however, fail to raise any serious doubts about the reliability of the government's evidence or to negate the prosecutor's showing of probable cause to believe that Blakeney was involved in the shooting.*fn10
Defendant also contends that the evidence, to the extent it is incriminating at all, suggests only that Blakeney was an accessory after the fact and not a principal of the attempted murders. Defendant's argument, though, overlooks the evidence demonstrating his involvement prior to the shooting. For example, telephone records indicate that Blakeney called Grant at 9:35 p.m. on the night of the shooting, which is approximately the time he first saw Minors at the movie theater. Even more incriminating are the text messages exchanged by Blakeney's girlfriend and a girlfriend of another Parkside gang member from 9:41 p.m. to 10:08. These text exchanges strongly suggest that Blakeney saw a rival gang member at the theater, that he called a friend, and that his girlfriend was concerned that he and his friend were likely going to do something to the rival gang member. Thus, even if there is insufficient evidence to establish that Blakeney was the shooter, there is ample evidence "to warrant a man of reasonable caution in the belief that" Blakeney, enabled, aided, counseled or procured Grant to shoot the victims. The evidence establishes probable cause to believe that Blakeney and Grant shared a common intent and acted together in the shootings of Minors and Kuchler. At a minimum, the evidence strongly indicates that Blakeney told Grant where to find Minors, knowing that Grant intended to harm Minors.
For all these reasons, I conclude that there is sufficient evidence to establish probable cause to believe that Jahmel Glen Blakeney committed attempted murder when he or his co-defendant shot Minors and Kuchler. See U.S. v. Samuels, 2009 WL 367578, at *5-6 (E.D.N.Y. Feb. 10, 2009) (finding probable cause on murder and attempted murder charges where the court found that the defendant acted in concert with another individual in the shootings). The proof submitted by the government is sufficient to support its extradition request.
For the reasons stated above, I find that there is probable cause to warrant a finding of extradition against Jahmel Glen Blakeney and that he has failed to establish any defense to extradition. The government's request for a certificate of extraditability is granted.
STEVEN M. GOLD United States Magistrate Judge
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