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United States District Court, M.D. Pennsylvania
November 15, 2005.
EFRAIN MUNOZ-VILLALBA, THOMAS GUERRERO Defendants.
Before the Court are Defendants' Motions to Suppress Evidence.
(Doc. Nos. 46, 49.) The Court held an evidentiary hearing to
consider the Motions on October 11, 2005. The Government filed a
brief in opposition to both Motions on October 21, 2005 (Doc. No.
67), and Defendants replied in separate briefs (Doc. Nos. 68,
69). The Motions are ripe for disposition and, for the reasons
that follow, Defendant Munoz-Villalba's Motion will be denied and
Defendant Guerrero's Motion will be granted.
I. Background
A. Factual Background*fn1
On June 4, 2005, Pennsylvania State Police Trooper Marlin
Foulds was positioned on the westbound lane of Pennsylvania
Turnpike Interstate 76, in Upper Allen Township, Cumberland
County, conducting speed enforcement. (Transcript of October 11,
2005 hearing, at 5-6.) Trooper Foulds used a radar gun to
determine the speed of vehicles traveling past his position on
the turnpike. (Id.) The posted speed limit at his location was
65 miles per hour. (Id.) At approximately 6:40 p.m., Trooper
Foulds observed a red Nissan Sentra traveling westbound at 85
miles per hour. (Id.) Trooper Foulds activated his emergency
lights and siren, stopping the vehicle one mile down the Turnpike at milepost 234. (Id.)
Trooper Foulds positioned his vehicle behind the Sentra along the
side of the road. (Id.)
The Sentra displayed a Maryland license plate and contained two
occupants, Defendants Efrain Munoz-Villalba and Thomas Guerrero.
(Id. at 7, 8, 13.) Munoz-Villalba occupied the driver's seat
and Guerrero sat beside him in the front passenger's seat. (Id.
at 7.) Trooper Foulds approached Munoz-Villalba and asked for his
driver's license, registration, and proof of insurance. (Id.)
Munoz-Villalba produced a Washington, D.C. driver's license and a
rental agreement for the vehicle. (Id.) According to the rental
agreement, Munoz-Villalba was not the renter of the vehicle, nor
was he listed as an additional driver. (Id. at 8.) When
questioned on this point, Munoz-Villalba stated that his aunt,
who was currently visiting Reading, Pennsylvania, had rented the
vehicle. (Id. at 9.)
Trooper Foulds took the license and rental agreement back to
his patrol car to verify the information. (Id. at 10.) This
check confirmed that the license and registration were valid.
(Id.) The rental agreement stated that the Nissan Sentra had
approximately 3,200 miles on the odometer when it was rented on
May 21, 2005. (Id. at 10, 23.) Upon returning to the vehicle,
Trooper Foulds asked Munoz-Villalba to verify the Sentra's
current mileage, which was in excess of 6,000 miles. (Id. at
11.) In 14 days, the vehicle had been driven approximately 3,000
miles. (Id.)
Trooper Foulds asked Munoz-Villalba how many trips he had made
to Reading, Pennsylvania. Id. at 12. Foulds responded that he
had traveled to Reading four or five times in the past and that
his Aunt was visiting the Reading area. (Id.) Munoz-Villalba
also stated that he was currently traveling to Reading. (Id.)
Trooper Foulds pointed out to Munoz-Villalba that the road he was on traveled away from Reading. (Id.)
Munoz-Villalba responded that he was lost. (Id.) During this
time, Guerrero sat silently in the front passenger seat. (Id.
at 12-13.) Trooper Foulds asked Guerrero for identification.
(Id. at 13.) Because Guerrero does not speak English,
Munoz-Villalba translated the Trooper's order. (Id. at 13-14,
17.) Guerrero provided a Republic of Panama identification card.
(Id. at 14.) "At that point [Trooper Foulds] determined that
both [Defendants] are . . . originally from Republic of Panama."
(Id.) Trooper Foulds returned to his patrol car to conduct a
check on Guerrero's information. (Id.) The National Crime
Information Center indicated that no warrants were outstanding
for Guerrero. (Id.)
At approximately 6:45 p.m., Trooper Foulds radioed for
assistance, asking for Pennsylvania State Police Trooper Todaro
of the Bureau of Criminal Investigation, Drug Law Enforcement
Division, Central Interdiction Unit. (Id. at 46-47.) Trooper
Todaro also is assigned to a narcotics task force, along with
members of the United States Drug Enforcement Agency and the
Attorney General's Office, Bureau of Narcotics Investigation.
(Id.) Trooper Todaro arrived on the scene ten to fifteen
minutes later, while Trooper Foulds wrote a traffic citation for
violation of the speed limit. (Id. at 47, 50.) When he arrived,
Trooper Todaro positioned his unmarked vehicle behind Trooper
Foulds' police car. (Id. at 50.) Both troopers were in uniform.
(Id. at 30-31.)
Trooper Foulds relayed his concerns about the Defendants to
Trooper Todaro. (Id. at 51.) Trooper Foulds then asked
Munoz-Villalba to exit his vehicle and move to the back of the
car, while Trooper Todaro positioned himself on the passenger
side of the vehicle, near Guerrero. (Id. at 15-16.) Trooper
Todaro explained the citation, returned Defendants' documents,
and told Munoz-Villalba that he was free to go. (Id.)
Munoz-Villalba asked Trooper Foulds how to get back to Reading and Foulds gave him directions.
(Id. at 17, 65.) Trooper Foulds asked Munoz-Villalba if "he had
any type of contraband, weapons, stolen property, [or] drugs that
may be in his vehicle." (Id. at 17.) When Munoz-Villalba
answered in the negative, Trooper Foulds asked Munoz-Villalba if
he could search the vehicle. (Id. at 17-18, 54, 76, 86.)
The testimony at the evidentiary hearing conflicts as to what
happened next. Troopers Foulds and Todaro testified at hearing
that Munoz-Villalba consented to the search. (Id. at 17-19, 54,
76.) The portion of Trooper Foulds' report read into the record
during the hearing states that Munoz-Villalba "seemed
nervous. . . . I asked him if all the items in the vehicle were
his, and he stated that they were." (Id. at 76.) The troopers
then stated that Guerrero was asked to exit the vehicle. (Id.
54-55.) The troopers patted down Defendants and found no
narcotics or weapons. (Id. at 77.) Trooper Foulds took the
Defendants to a grassy area a few feet away from the vehicle,
while Trooper Todaro searched the vehicle. (Id. at 18, 54-55.)
In contrast to the troopers' testimony, Defendant
Munoz-Villalba testified at hearing that he never gave the
troopers consent to search the vehicle. (Id. at 86-88.) Rather,
when asked if they could search the car, Munoz-Villalba testified
that he asked if it was necessary. (Id.) At this point,
Munoz-Villalba testified that Trooper Todaro pulled him and
Defendant Guerrero to the side of the road, searched them, and
told them to sit down. (Id.) Munoz-Villalba testified that,
although he was told he was free to go, he did not feel free to
leave. (Id. at 89.)
It is uncontested that Trooper Todaro performed a cursory
visual search of the vehicle's interior, beginning with the front
driver and passenger areas. (Id. at 55.) Finding nothing of
note, Trooper Todaro searched the back seats and the trunk.
(Id.) In the trunk, Trooper Todaro found a 9 inch by 9 inch by
14 inch box with a "Conair Fabric Steamer" label on it. (Id. at
56.) Upon opening this box, Trooper Todaro found a large "Ziploc
baggy" wrapped in clear white tape. (Id.) Looking through the
clear plastic bag, Trooper Todaro observed two individual bags
containing brownish powder, which Trooper Todaro suspected was
heroin, and a bag containing a "chunky, powdery, tannish
substance" also thought to be narcotics. (Id.) Trooper Todaro
testified at hearing that when he asked Munoz-Villalba what the
bags contained, Munoz-Villalba responded "you know what it is."
(Id at 57.) At that point the troopers placed both Defendants
under arrest. (Id.) During a search of Guerrero incident to
arrest, the State Police discovered a bag containing 30 grams of
crack cocaine hidden inside of his sock. (Id. at 59.) Guerrero
also had $680 in currency on his person. (Id.) The State Police
seized $2,116 in currency from Munoz-Villalba. (Id.)
The Nissan Sentra was towed to the State Police barracks in
Newville, Pennsylvania. (Id. at 57.) After obtaining a search
warrant for the vehicle, a more extensive search was preformed.
(Id. at 58.) This search resulted in the discovery of a loaded
Smith and Wesson 9-millimeter handgun hidden behind the plastic
molding beneath the dashboard. (Id.) Tests performed by the
State Police on the substances found in the trunk of the Sentra
confirmed that the bags contained heroin, methamphetamine, and
"crack" cocaine. (Id. at 59.) Defendants' Miranda rights were
read to them by a Spanish-speaking officer and both declined to
answer questions concerning the narcotics and firearm found in
the vehicle. (Id. at 60.)
B. Procedural History
By indictment filed June 22, 2005, the Grand Jury charged
Defendants with the following offenses: possession with the
intent to distribute 100 grams or more of heroin (Count II);
possession with the intent to distribute 50 grams or more of
methamphetamine (Count III); possession with the intent to manufacture and distribute "crack"
cocaine and methamphetamine; and possession of a firearm in
furtherance of a drug trafficking crime (Count IV). (Doc. No. 1.)
By the same indictment, Defendant Guerrero was also charged
separately with possession with the intent to distribute 5 grams
or more of "crack" cocaine (Count I). (Id.) Both Defendants
pled not guilty to the charges in the indictment. (Doc. No. 16,
23.) On September 9, 2005, Defendant Munoz-Villalba filed a
Motion to Suppress Evidence, arguing that the warrantless search
of the Sentra violated his Fourth Amendment rights. (Doc. No.
46.) Munoz-Villalba seeks suppression of the drugs and firearm
found in the Sentra, the currency found on his person, and any
statements made during his alleged detention. On September 16,
2005, Defendant Guerrero filed a Motion to Suppress Evidence,
arguing that his search incident to arrest violated his Fourth
Amendment rights because the arresting officer lacked probable
cause to arrest him. (Doc. No. 49.) Guerrero seeks suppression of
the drugs and currency found during the search incident to his
arrest. The Court held an evidentiary hearing on October 11,
2005. (Doc. No. 59.) The Government filed a brief in opposition
to both motions on October 21, 2005. (Doc. No. 67.) Defendant
Guerrero filed a brief in reply on October 28, 2005 (Doc. No. 68)
and Defendant Munoz-Villalba filed a brief in reply on October
31, 2005 (Doc. No. 69).
II. Discussion
A. Search of the Vehicle
It is uncontested that Defendant Munoz-Villalba was speeding
and that Trooper Foulds had probable cause to stop and briefly
detain Defendants while he issued them a traffic citation. (Doc.
No. 69 at 4.) However, Defendant Munoz-Villalba argues that the
subsequent warrantless search of the red Nissan Sentra was
conducted pursuant to an "unlawful seizure" because the State Police had no reasonable suspicion to justify further
detention and the search of the vehicle.*fn2 (Doc. No. 46-2
at 6.) At the suppression hearing, Munoz-Villalba testified that
he never gave the troopers consent to search the vehicle.
(Transcript at 86-88.) Munoz-Villalba testified further that he
asked the troopers if a search was necessary and was subsequently
physically separated from the car while the vehicle was searched.
(Id.) Munoz-Villalba testified that, although he was told he
was free to go, he did not feel free to leave. (Id. at 89.) The
Government asserts that the search of the vehicle was lawfully
conducted pursuant to Defendant Munoz-Villalba's voluntary
consent and that Munoz-Villalba was free to leave at any time. At
the hearing, both troopers testified that Munoz-Villalba orally
consented to the search of the vehicle. (Id. at 17-19, 54, 76.)
A warrantless search is per se unreasonable under the
Fourth Amendment. Schneckloth v. Bustamonte, 412 U.S. 218, 219
(1973). "It is well settled, however, that a search conducted
pursuant to consent is one of the specifically established
exceptions to the search warrant requirement." United States v.
Givan, 320 F.3d 452, 459 (3d Cir. 2003) (citations omitted). The
Supreme Court has instructed that "when a prosecutor seeks to
rely upon consent to justify the lawfulness of a search, he has
the burden of proving that the consent was, in fact, freely and
voluntarily given." Schneckloth, 412 U.S. at 222 (internal
quotation marks and citations omitted). Whether a party has
voluntarily consented to a search request is determined from the
totality of the circumstances. Id. at 227. The Third Circuit
has explained as follows:
[W]hether consent was given is to be resolved by
examining all relevant factors, without giving
dispositive effect to any single criterion. Certain facts that courts consider in
determining whether confessions were voluntary, such
as the age of the accused, his education, his
intelligence, whether he was advised of his
constitutional rights, and whether the questioning
was repeated and prolonged are relevant to [the]
In Kim, the Third Circuit determined that a suspect had
voluntarily consented to a search request after noting the
suspect's voluntary cooperation, the short duration of the
encounter between officers and the suspect, the lack of threat of
force, the courteous tone of the conversation, the limited number
of law enforcement officers present, and the lack of repeated
questioning. Kim, 27 F.3d at 955. The Court also noted that the
law enforcement officers did not ask the suspect "direct,
probing, or incriminating questions" although he was advised that
officers were looking for illegal drugs. Id.
Applying these considerations to the case at bar, the Court
finds that Defendant Munoz-Villalba voluntarily consented to
Trooper Foulds' request to search the Sentra. Trooper Foulds
testified that after advising Munoz-Villalba of his motor vehicle
violation, he advised Munoz-Villalba that he was free to go.
(Transcript at 16.) Munoz-Villalba then asked for directions to get back to Reading, Pennsylvania. (Id.) After giving him
directions, Trooper Foulds asked if Munoz-Villalba "had any type
of contraband, weapons, stolen property, [or] drugs" in his
vehicle. (Id. at 17.) When Munoz-Villalba replied that he did
not have the above in the vehicle, Trooper Foulds asked if "he
would mind us looking." (Id. at 17-18.) Both Trooper Foulds and
Todaro testified at hearing that Munoz-Villalba then agreed to
the subsequent search. (Id. at 17-19, 54, 76.) Although
Munoz-Villalba's testimony differs greatly from that of the
officers on this point, upon consideration of the demeanor of the
witnesses and the testimony given at the hearing, the Court
credits the troopers' testimony at hearing. The Court finds that
Munoz-Villalba gave the Troopers oral consent to search the
vehicle. Accordingly, the Court must determine whether this
consent was intelligent and voluntary.
The record contains no facts as to Munoz-Villalba's educational
background or his intelligence. During the hearing,
Munoz-Villalba testified competently and showed no sign of mental
deficiency or defect. The Court notes that English is not
Munoz-Villalba's first language and Munoz-Villalba requested the
periodic assistance of a Spanish interpreter during his testimony
at hearing. However, Munoz-Villalba was able to understand most
of the questions posed to him in English during the hearing and
respond in English. Munoz-Villalba's counsel represented to this
Court that Munoz-Villalba could speak limited English.
(Transcript at 83-85.) Moreover, Munoz-Villalba testified that he
responded to Trooper Foulds' request to search in a way that
indicated that he understood the request. (Id. at 86-87,
94-95.) The Court finds that Munoz-Villalba understood the
request prior to offering his consent to search.
The Court does not find the presence of two police officers in
uniform to have been excessive for a routine traffic stop, nor
that their presence was coercive. Both officers parked their police vehicles behind Munoz-Villalba's Sentra along the
side of the roadway, and did not block the vehicle's egress.
Further, there is no credible testimony that either officer
displayed a weapon, or showed any sign of aggression towards
Defendants. Moreover, although the Defendants were separated from
the vehicle during the actual search, they were told that they
were free to leave and the Court finds no credible evidence that
they were prevented from leaving.
Munoz-Villalba further argues that the duration of the traffic
stop and the scope of Trooper Foulds questions amounted to an
unjustified detention. (Doc. No. 46-2.) Absent reasonable
suspicion of criminal activity unrelated to the initial purpose
of a traffic stop, detention must end and the detainee must be
allowed to leave once the officers have completed the activities
related to the stop. United States v. Brignoni-Ponce,
422 U.S. 873, 881 (1975) ("stop and inquiry must be `reasonably related in
scope to the justification for their initiation'") (quoting
Terry v. Ohio, 392 U.S. 1, 29, 88 (1968)); Florida v. Royer,
460 U.S. 491, 500 (1983) (plurality opinion) ("[A]n investigative
detention must be temporary and last no longer than is necessary
to effectuate the purpose of the stop"). During a traffic stop,
the officer must limit his questioning to matters directly
related to the traffic stop. Berkemer v. McCarty, 468 U.S. 420,
439 (1984). If in the course of the officer's routine
questioning, however, the officer identifies articulable facts
that create a reasonable suspicion of additional criminal
activity, the officer may continue to detain the driver and
investigate the facts giving rise to the additional suspicion.
Berkemer, 468 U.S. at 439 (citing Terry v. Ohio, 392 U.S. 1,
29 (1968)); See United States v. Johnson 63 F.3d 242, 247 (3d
Cir. 1995). The officer may ask "a moderate number of
questions. . . . To try to obtain information confirming or
dispelling the officer's suspicions." Berkemer, 468 U.S. at 439.
However, once the traffic stop has concluded and the defendant
is told he is free to leave, an officer is free to ask further
questions, so long as the continued encounter is consensual.
United States v. Wilson, 413 F.3d 382, 388 n. 6 (3d Cir. 2005).
It is well established that no seizure has occurred when an
officer approaches an individual in a public place, identifies
himself as a law enforcement agent, asks questions, asks to
search a person's bags, or explains that he is conducting a
narcotics investigation. See Florida v. Royer, 460 U.S. 491,
497 (1983) (questioning by police in airport did not amount to
seizure); Wilson, 413 F.3d at 388 (further questioning by
officer after defendant was given a traffic citation and told he
was free to leave did not constitute seizure). If a reasonable
person would feel free to terminate the encounter, then he or she
has not been seized. Florida v. Bostick, 501 U.S. 429, 433-35
(1991) (stating that consensual encounters do not implicate the
Fourth Amendment).
In United States v. Wilson, the defendant was stopped for
speeding in a rental car on the Pennsylvania turnpike.
413 F.3d at 384. Although the officer found irregularities with the
vehicle's rental agreement, the car was not reported stolen.
Id. After the officer returned Wilson's documents and told him
he was free to leave, the officer began to ask Wilson about the
rental agreement and his destination. Id. Finding
irregularities between Wilson's statements and those of his
passengers, the officer continued his questioning. Id. In order
to dissuade the officer that criminal activity was afoot, Wilson
opened the trunk of the vehicle to show the officer that he was
transporting CDs for sale. Id. at 384-85. The officer asked for
and was given permission to search a bag in the trunk of the
vehicle. Id. at 385. The bag contained cocaine. Id. The Third
Circuit Court of Appeals found that Wilson had not been seized
during the stop and had consented to the search of the bag. Id. at 388. Because
the Court of Appeals "determined that no seizure occurred, i.e.,
that Wilson's continued encounter with [the police officer] was
consensual, we need not reach Wilson's argument that [the police
officer] did not have a reasonable articulable suspicion of
criminal activity that justified his further questioning." Id.
at 388 n. 6 (citing Bostick, 501 U.S. at 433-34).
According to the chronology of events presented at hearing in
the instant case, the traffic stop prior to the consent lasted no
more than twenty-minutes and did not involve extensive
questioning by the officers. Trooper Foulds' questions during the
traffic stop were limited to identification and irregularities
with the rental agreement, such as why Munoz-Villalba was not
listed as an authorized driver on the agreement and the reason
for the excessive amount of miles driven during the last two
weeks. Trooper concluded the traffic stop and told Munoz-Villalba
that he was free to leave before asking him questions about the
contents of his vehicle. Moreover, Munoz-Villalba engaged Trooper
Foulds in conversation after the traffic stop had concluded.
Although twenty-minutes may be longer than the average traffic
stop, the Court does not find the length of time unduly
burdensome or coercive under the present circumstances.
Upon consideration of the totality of the circumstances of this
case, the Court concludes that the Government has satisfied its
burden of demonstrating that Defendant Munoz-Villalba voluntarily
and knowingly consented to Trooper Foulds' request to search the
Sentra and the subsequent search of the vehicle was
lawful.*fn3 Moreover, the Court finds that Munoz-Villalba's continued encounter with Trooper Foulds was consensual and did
not amount to continued detention. Accordingly, Defendant
Munoz-Villalba's Motion to Suppress Evidence will be denied.
B. Search of Thomas Guerrero Incident to Arrest
In his motion to suppress, Defendant Guerrero argues that the
State Police's search of him incident to arrest was unlawful
because there was no basis for his arrest. (Doc. No. 50 at 4.)
While "`the probable-cause standard is incapable of precise
definition or quantification,' all interpretations of probable
cause require a belief of guilt that is reasonable, as opposed to
certain." Wright v. City of Philadelphia, 409 F.3d 595, 602 (3d
Cir. 2005) (quoting Maryland v. Pringle, 540 U.S. 366, 371
(2003)); see also Hill v. California, 401 U.S. 797, 804
(1971) ("Sufficient probability, not certainty, is the touchstone
of reasonableness under the Fourth Amendment. . . ."). The
probable cause standard is a "practical, nontechnical conception
that deals with the factual and practical considerations of
everyday life on which reasonable and prudent men, not legal
technicians, act. . . . Probable cause is a fluid concept
turning on the assessment of probabilities in particular factual
contexts not readily, or even usefully, reduced to a neat set
of legal rules." Pringle, 540 U.S. at 370-71 (internal
quotations omitted). In the portion of its brief addressing
Defendant Guerrero's motion, the Government relies heavily upon
Maryland v. Pringle, supra. In Pringle, a vehicle with
three occupants was caught speeding in Maryland. 540 US. at 367.
Pringle was seated in the front passenger seat. Id. During a
consent search of the vehicle, the officer found $763 in the
glove compartment and five plastic baggies of cocaine behind the
back seat armrest. The Supreme Court found that the police had
reasonable cause to arrest Pringle because:
Pringle was one of the three men riding in a Nissan
Maxima at 3:16 a.m.[;] [t]here was $763 of rolled-up
cash in the glove compartment directly in front of
Pringle[;] [f]ive plastic glassine baggies of cocaine
were behind the back-seat armrest and accessible to
all three men[;] [and upon] questioning, the three
men failed to offer any information with respect to
the ownership of the cocaine or the money.
it an entirely reasonable inference from these fact
that any or all three of the occupants had knowledge
of, and exercised dominion and control over, the
cocaine. Thus a reasonable officer could conclude
that there was probable cause to believe Pringle
committed the crime of possession of cocaine, either
solely or jointly. . . . The quantity of drugs and
cash in the car indicated the likelihood of drug
dealing, an enterprise to which a dealer would be
unlikely to admit an innocent person with the
potential to furnish evidence against him.
The instant matter is distinguishable from Pringle. Prior to
Guerrero's arrest, no large sum of money had been found nor were
the hidden drugs readily accessible to Guerrero. Although neither
defendant owned or rented the vehicle, Munoz-Villalba, as driver,
controlled access to the trunk. Moreover, when asked if
everything in the vehicle was his, Munoz-Villalba replied in the
affirmative. The only information known to the troopers at the
time of the arrest was that Munoz-Villalba had been driving a
vehicle, rented by a third party, 3,000 miles over the previous
fortnight, and that a modest quantity of narcotics was hidden in
a box in the trunk of the vehicle, to which Munoz-Villalba had
previously claimed ownership. During the hearing, the officers
gave no testimony as to Guerrero's relationship with
Munoz-Villalba, the vehicle, or the drugs beyond "the mere fact
that he occupied the vehicle along with the driver. . . ."
(Transcript at 78.) Neither officer testified to seeing any nervous or
suspicious behavior exhibited by Guerrero.
In United States v. Di Re, New York Police officers were
informed by one Mr. Reed that he was planning on buying
counterfeit gasoline ration coupons from a Mr. Buttitta on a
specific day at a specific place. 332 U.S. 581, 582 (1948). Upon
arriving at the designated location, the officers found a vehicle
with Buttitta in the driver's seat, Reed in the back seat, and
the defendant in the front passenger seat. Id. Mr. Reed had two
tickets in his hands, which later proved to be counterfeit. Id.
The Supreme Court found that "the presence of Di Re in the car
did not authorize an inference of participation in the
Buttitta-Reed sale. . . . There is no evidence that it is a fact
or that the officers had any information indicating that Di Re
was in the car when Reed obtained ration coupons from Buttitta,
and none that he heard or took part in any conversation on the
subject." Id. at 593. In that case, the informant's testimony
singled out the driver as the guilty party. Id. at 592. In the
case at bar, Munoz-Villalba admitted that everything in the
vehicle was his. Nothing beyond Guerrero's mere presence in the
vehicle connects him to the controlled substances found hidden in
the trunk. Viewing the totality of circumstances and upon
consideration of the applicable law, the Court finds that the
officers did not have probable cause to arrest Guerrero.
Having concluded that Guerrero was arrested without probable
cause, the Court must then examine whether the evidence found
during the search incident to the arrest should be excluded as
the fruit of the poisonous tree or whether the taint of the
illegal search had been purged by some intervening event. The
State Police had already searched both Defendants for weapons
prior to the vehicle search and found nothing. The Government
fails to offer any argument or evidence that the money and 30 grams of cocaine found
on Guerrero incident to his arrest would have been found
irrespective of the arrest. Nor does the Government suggest that
any meaningful event occurred between the arrest and the search
as to purge the taint of the illegal arrest. At the time of the
second personal search, the State Police knew nothing about
Guerrero except that he had been sitting in the vehicle with
Munoz-Villalba, was of Panamanian citizenship, and had no
warrants out for his arrest. Accordingly, the Court finds that
all of the evidence discovered on Guerrero's person during the
search incident to his arrest must be suppressed. III. Order
AND NOW, this 15th day of November, 2005, IT IS HEREBY
ORDERED THAT Defendant Munoz-Villalba's Motion to Suppress
Evidence (Doc. No. 46) is DENIED. IT IS FURTHER ORDERED THAT
Defendant Guerrero's Motion to Suppress Evidence (Doc. No. 49) is
GRANTED. All physical evidence seized or obtained following
Defendant Guerrero's arrest in this case shall be suppressed and
inadmissible at trial.
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United States District Court, S.D. New York
September 11, 2014
THE ANNUITY, PENSION, WELFARE AND APPRENTICESHIP SKILL IMPROVEMENT & SAFETY FUNDS OF THE INTERNATIONAL UNION OF OPERATING ENGINEERS, LOCAL 137, 137A, 137B, 137C & 137R, AFL-CIO, BY ITS TRUSTEES ALBERT J. GIRARDI, JR., EDWARD KELLY, JEFFREY LOUGHLIN, PETER PATERNO, ROSS PEPE AND NICHOLAS SIGNORELLI, JR., Plaintiffs,v.COLONIAL SURETY COMPANY, Defendant.
NELSON S. ROMN, District Judge.
This case was brought by the Annuity, Pension, Welfare and Apprenticeship Skill Improvement & Safety Funds (the "Funds") of the International Union of Operating Engineers, Local 137, 137A, 137B, 137C & 137R, AFL-CIO (the "Union" or "Local 137") by its Trustees (together, "Plaintiffs") to recover contributions in connection with a collective bargaining agreement between DeRosa Tennis Contractors, Inc ("DeRosa Tennis") and the Union. Plaintiffs also named DeRosa Sports Construction, Inc. as a defendant. On April 9, 2014, Plaintiffs entered into a stipulation to dismiss DeRosa Sports Construction, Inc. from the case. On June 3, 2014, Plaintiffs entered into a consent judgment as to DeRosa Tennis Contractors, Inc. The only remaining Defendant is Colonial Surety Company. Before the Court is Colonial Surety Company's motion for partial summary judgment. For the following reasons, Defendant's motion is DENIED.
I. Background
On March 3, 2008, [1] DeRosa Tennis entered into a collective bargaining agreement (the "CBA") with the International Union of Operating Engineers Local 137, 137A, 137B, 137C and 137R, AFL-CIO and the Local 137 Annuity, Pension, Welfare and Apprenticeship Skill Improvement & Safety Funds. Plaintiffs' Statement of Material Facts Pursuant to Local Rule 56.1 ("Pl.'s 56.1") ¶ 4. As stated in the preamble, the CBA was entered into between the parties "for the purpose of establishing the wages, hours and conditions of employees represented by the [International Union of Operating Engineers Local 137, 137A, 137B, 137C and 137R, AFL-CIO], and employed by Employees subject to this Contract." CBA, preamble. The CBA provides that "[w]ages shall be paid weekly in currency... on the job where Employees covered by this Agreement are employed at least one (1) hour... in accordance with the weekly rates itemized on the schedule attached [to the CBA] and made a part of this Agreement." CBA Art. IX, s. 1. Additionally, the CBA provides for contributions to the Funds as follows: "It is hereby mutually understood and agreed that commencing March 3rd, 2008 the Employer shall contribute as agreed and allocated as set forth hereinafter on the Fringe Benefit Schedule of this Agreement. Contributions shall be on all hours paid. Check in payment of said contributions shall be made payable to Local 137 Joint Funds account and shall be delivered to each Employee weekly, simultaneously with payment of wages." CBA Art. X, s. 1(a). The same language is repeated for the Pension Fund and the Apprenticeship, Skill Improvement and Safety Fund. CBA Arts. XI, s. 1 & XII, s. 1.
Colonial Surety subsequently issued three bonds as surety on behalf of DeRosa Tennis, as principal. The first was issued on November 2, 2009 in favor of the City of Yonkers, as obligee, in connection with a project known as the Pelton Park Project. Defendant Colonial's Statement of Material Facts Pursuant to Local Rule 56.1 ("Colonial's 56.1") ¶ 2. The second was issued on March 9, 2010 in favor of the City of New York, as obligee, in connection with a project known as the Crotona Park Project. Id. ¶ 3. On March 3, 2010, Colonial issued a union bond bearing bond no. CSC-94495 in favor of Local 137, as obligee, in the amount of $100, 000. Id. ¶ 7. The bond states that "the Principal and Surety are held and firmly bound pursuant to the terms of the [CBA] between Principal [DeRosa Tennis] and Obligees [the Union]." Delaney Aff. Ex. D (hereinafter, the "Union Bond"). It further states, "In the event of a default by the Principal, the Obligees shall notify the Surety via certified mail/return receipt requested of such default within one (1) year of the last act of default[.]" Id. The Rider to the Union Bond states, "It is understood and agreed that failure by the obligee to notify the Surety of delinquency more than Thirty (30) days shall void the Surety's obligation under this bond." Delaney Aff. Ex. D, p. 3 (hereinafter, the "Union Bond Rider").
Pursuant to the results of an audit for the period of June 1, 2009 through August 30, 2010, on January 14, 2011, representatives of the Union sent a letter to Colonial Surety notifying that DeRosa Tennis failed to pay fringe benefit contributions in the amount of $203, 831.93. Colonial's 56.1 ¶ 10. The letter served to make a demand on Colonial Surety under the Union Bond. Colonial Surety acknowledged receipt of the letter and on January 18, 2011 sent a letter requiring the Union to complete a Proof of Claim form and submit documents to allow Colonial Surety to verify the amount of the claim. Such information was sent to Colonial Surety on January 26, 2011. Id. ¶ 11. On June 18, 2012, the Union revised the amount of the claim to $129, 356.61. Id. ¶ 18. That revised amount included a payment made by DeRosa Tennis in the amount of $108, 405.40 toward the amount due as indicated in the audit. Id. ¶ 20(a).
II. Legal Standards
a. Summary Judgment Standard
Motions for summary judgment are governed by Rule 56 of the Federal Rules of Civil Procedure. The rule states in pertinent part:
A party may move for summary judgment, identifying each claim or defense - or the part of each claim or defense - on which summary judgment is sought. The court shall grant summary judgment if the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law.
Fed. R. Civ. P. 56(a). The moving party bears the initial burden of demonstrating the absence of any genuine dispute or issue[2] of material fact by pointing to evidence in the record, "including depositions, documents... [and] affidavits or declarations, " Fed.R.Civ.P. 56(c)(1)(A), "which it believes demonstrate[s] the absence of a genuine issue of material fact." Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986). Once the moving party has fulfilled its preliminary burden, the onus shifts to the nonmoving party to raise the existence of a genuine dispute of material fact. Fed.R.Civ.P. 56(c)(1)(A); Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 252 (1986). A genuine dispute of material fact exists when "the evidence is such that a reasonable jury could return a verdict for the nonmoving party." Anderson, 477 U.S. at 248; accord Benn v. Kissane, 510 F.Appx. 34, 36 (2d Cir. 2013); Gen. Star Nat'l Ins. Co. v. Universal Fabricators, Inc., 585 F.3d 662, 669 (2d Cir. 2009); Roe v. City of Waterbury, 542 F.3d 31, 35 (2d Cir. 2008); Jeffreys v. City of New York, 426 F.3d 549, 553 (2d Cir. 2005). Courts must "constru[e] the evidence in the light most favorable to the non-moving party and draw[] all reasonable inferences in its favor." Fincher v. Depository Trust & Clearing Corp., 604 F.3d 712, 720 (2d Cir. 2010) (quoting Allianz Ins. Co. v. Lerner, 416 F.3d 109, 113 (2d Cir. 2005)). In reviewing the record, "the judge's function is not himself to weigh the evidence and determine the truth of the matter, " Anderson, 477 U.S. at 249; see also Kaytor v. Elec. Boat Corp., 609 F.3d 537, 545 (2d Cir. 2010) ("The function of the district court in considering the motion for summary judgment is not to resolve disputed questions of fact...."), nor is it to determine a witness's credibility, Anderson, 477 U.S. at 249. Rather, "the inquiry performed is the threshold inquiry of determining whether there is the need for a trial." Anderson, 477 U.S. at 250.
III. Discussion
a. Territorial Application of CBA
Colonial argues that the "Territorial Application" provision of the CBA limits Plaintiffs' claims to contributions sought solely for work performed within a certain geographic territory. Article 1 of the CBA, entitled "Territorial Application, " states:
All the counties of Westchester and Putnam and the part of Dutchess County defined by the northern boundary line of the City of Poughkeepsie, then due east to Route 115, then north along Route 115 to Bedell Road, then east along Bedell Road to VanWagner Road, then north along VanWagner Road to Bower Road, then east along Bower Road to Route 44 and along Route 44 east to Route 343, then along Route 343 east to the northern boundary of Town of Dover Plains and east along the northern boundary of Town of Dover Plains to the border line of the State of Connecticut and bordered on the west by the middle of the Hudson River.
CBA Art. 1. Colonial argues that this provision precludes it from covering contributions for jobs performed outside of the stated territory. Plaintiffs argue that the CBA covers all work performed by all of the Union employees of DeRosa Tennis, whether or not performed within the Counties of Westchester, Putnam, or the area of Dutchess described.
"There is no dispute that a surety's obligations are limited to those it undertakes in its bond and that the bond attaches to the principal contract and must be construed in conjunction therewith...." Varlotta Constr. Corp v. Sette-Juliano Constr. Corp., 234 A.D.2d 183, 183 (1st Dep't 1996)). "As courts have done for over a century, we look to standard principles of contract interpretation to determine the rights and obligations of a surety under a bond." U.S. Fid. & Guar. Co. v. Braspetro Oil Servs. Co., 369 F.3d 34, 51 (2d Cir. 2004). The Union Bond provides that the parties are bound by the CBA. In interpreting a contract such as the CBA, the "words and phrases should be given their plain meaning, and the contract should be construed so as to give full meaning and effect to all of its provisions." LaSalle Bank Nat'l Ass'n v. Nomura Asset Capital Corp., 424 F.3d 195, 206 (2d Cir. 2005). "The primary objective of a court in interpreting a contract is to give effect to the intent of the parties as revealed by the language of their agreement[, and s]ummary judgment is only proper in a contract dispute if the language of the contract is wholly unambiguous." Trustees of Bricklayers and Allied Craftworkers v. Charles T. Driscoll Masonry Restoration Co., 165 F.Supp.2d 502, 510 (S.D.N.Y. 2001) (internal citations omitted).
There are several provisions of the CBA that are especially pertinent to the resolution of this issue. The most important is the Territorial Application provision, which is the first Article of the CBA. Article II of the CBA, setting forth the "Scope of Employment" dictates that the CBA covers "Heavy Construction work" which is "defined as the Construction of Engineering Structures, Building foundations and walls, to finished grade[.]" CBA Art II. Article III, entitled "Jurisdiction, " states, in pertinent part, "The Employer agrees that Local 137 and its branches shall be the exclusive representative of all Employees of the Employer performing work within the recognized jurisdiction of the Union...." CBA Art. 3, s. 1. Other pertinent sections include Article XXVIII, entitled "Miscellaneous, " which states, in pertinent part, "It is further mutually understood and agreed that this Agreement shall apply to all persons covered under this Agreement at the Contractors' permanent and temporary shop, garage, base of operation and job site, " CBA Art. XXVIII, s. 3, and Article XXXII, entitled "Double Breasted, " which states:
In order to protect and preserve, for the Employees covered by this Agreement, all work hereto fore performed by them; to protect the benefits to which Employees are entitled under this Agreement; and to prevent any device or subterfuge to avoid the protection and preservation of such work and benefits, it is hereby agreed as follows: If and when the Employer shall perform any work of the type covered by this Agreement, within the geographical area of this Agreement, under its own name or under the name of another, as a corporation, company, partnership, or any other business entity, including a joint venture, wherein the Employer (including its officers, directors, owners, partners or stockholder) exercises either directly or indirectly any significant degree of ownership, management or control, the terms and conditions of this Agreement shall be applicable to all such work.
CBA Art. XXXII, s. 1 (emphasis added).
When looking at the entire agreement, the Court must take care to "give full meaning and effect to all [of a contract's] provisions." LaSalle Bank Nat'l Ass'n, 424 F.3d at 206. Following the preamble of the CBA, the first three Articles lay out the "Territorial Application, " the "Scope of Employment, " and the "Jurisdiction" of the relationship between DeRosa Tennis and Local 137. The essential issue here is the application of the "Territorial Application" provision of the CBA. The two articles immediately following the "Territorial Application" indicate the type of work that is covered by the CBA and the area of responsibility of the Union in its representative capacity. There are other sections of the CBA which provide context for the interpretation of the "Territorial Application" provision. For instance, Article XXXII uses the language "within the geographical area of this Agreement" indicating that there is a limit to the geography of the job sites covered under the CBA. On the other hand, Article XXVIII states that the Agreement applies to all covered employees at every job site. It is also true, as Defendant argues, that the CBA does not include a "traveling contractors clause, " which generally applies when employees are sent to job sites where there is no local agreement and in which case the CBA would cover that work. Plaintiff argues that the defined geographical location in the CBA's territorial application refers to the "exclusive jurisdictional protections provided [by the Union] within that territorial application." The Court agrees with Plaintiffs.
First, the Court does not find any ambiguity in Article 1 of the CBA. Contract language is ambiguous if it is capable of more than one meaning when viewed objectively by a reasonably intelligent person who has examined the context of the entire integrated agreement.'" Trustees of Bricklayers and Allied Craftworkers, 165 F.Supp.2d at 510 (quoting Compagnie Financiere De Cic et de L'Union Europeenne, Management Invest. Funding Ltd v. Merrill Lynch, Pierce, Fenner & Smith Inc., 232 F.3d 153, 157-58 (2d Cir. 2000)). Reading the CBA in its entirety and taking the Territorial Application section in context, it cannot be the case that the CBA limits the geographical area in which DeRosa Tennis - and through the Union Bond, Colonial Surety - is required to remit benefits to covered employees for work performed by its employees. Contributions to each of the funds at issue is directly tied to the wages paid to each employee of DeRosa Tennis. The CBA does not limit the geographical area in which DeRosa Tennis operates or was required to pay its Union employees wages in connection with the work performed.
The fact that there is no "traveling contractors clause" in the CBA is not dispositive of this issue. The case cited to by Defendant in its moving brief, Trustees of the Chicago Plastering Institute Pension Trust v. Cork Plastering Co., No. 03 C 6867, 2007 WL 6080197 (N.D. Ill. Aug. 27, 2007), is not applicable to the circumstances here. In that case, the court made a determination as to which local union - among several with which the employer had agreements - the employer was required to make contributions. In the court's findings of fact, it states, "[I]f G & J employees performed plastering work within the geographic territory of Local 5, G & J was obligated to make contributions to the Local 5 Funds based on that work-irrespective of whether the employee performing the work was a member of Local 5, BAC 56/74, or Local 362/11." Id. at *4. However, each of the local unions had reciprocal agreements, which provided that a fund receiving contributions for work performed within the geographic territory by a member of another union would transfer the contribution to the corresponding fund from the worker's union. Id. Here, there are no other unions with which DeRosa had agreements. Thus, Trustees of the Chicago Plastering Institute bolsters the conclusion that contributions to a union fund to which an employee belongs must be made regardless of the geographical location of the work performed because in that case, contributions were made even though work was performed outside the geographical area of the union. Nor are the additional cases cited by Defendant in its reply brief applicable here. In Trustees of the Bricklayers and Allied Craftworkers, Local 5 v. Charles Driscoll Masonry Restoration Co., 165 F.Supp.2d 502 (S.D.N.Y. 2001), the employer signed an agreement with the union, Local 5, which contained a traveling contractors clause. That agreement was in connection with a specific job performed within the territorial jurisdiction of that union. The union then sought benefit contributions for all work performed by the employer's employees outside the union's territorial jurisdiction - including for employees who were never represented by the union. The court held that the traveling contractors clause did not obligate the company to pay contributions to the union. Thus, the circumstances of that case do not have bearing on the issue here.
Additionally, the intent of the parties to the CBA is clearly that contributions would be made on each hour worked no matter the location of the job site due to the fact that the amount paid by DeRosa Tennis toward the deficiency found in the audit did not distinguish between the locations of the projects. See Russo Aff. Ex. E.
Therefore, summary judgment on this issue is inappropriate.
b. Notice Provisions of the Bond & Rider
Defendant next argues that the Rider to the Union bond precludes contributions for work performed prior to December 10, 2010, or thirty days prior to the time that Local 137 sent notice of its claim under the Union Bond. The Rider provides, "It is understood and agreed that failure by the obligee to notify the Surety of delinquency more than Thirty (30) days shall void the Surety's obligation under this bond." Union Bond, Rider. The Rider further states, "Nothing herein contained shall vary, alter or extend any of the provisions, conditions or other terms of this bond except as above stated." Id. The CBA provides that contributions to the funds are to be made weekly at the same time as wages are paid. CBA Arts. X, s. 1(a), XI, s. 1(a), & Art. XII, s. 1(a). There is also a provision which provides that the Trustees of the funds "may at their discretion, permit the Employer to make monthly contributions" instead of weekly contributions. CBA Art. XVI, s. 4.
Defendant argues that "delinquency" is not an ambiguous term and that the Rider requires notice within 30 days of the contributions becoming due. Plaintiffs argue that the Rider notice provision is ambiguous because there is no point of reference for the start of the 30 day period within which notice was required to be given. The Court agrees with Plaintiffs.
On the issue of default, the Union Bond provides, "In the event of default by the Principal [DeRosa Tennis], the Obligees shall notify the Surety via certified mail/return receipt requested of such default within one (1) year of the last act of default, and provided further that no suit, action or proceedings shall be maintained against the Surety unless same be instituted within one (1) year after the date of expiration or cancellation of this Bond." Union Bond. However, the Rider does not state whether the notice must be made from the last act of default or otherwise define the point at which the thirty day notice period begins to run. It is ambiguous because the notice period may begin to run from the most recent delinquency or from the first delinquency or some other point which is undefined. Although the Union Bond's notice provision states that notice must be made within a certain period of time of the last default, the Rider specifically says that it overrides the Bond on the issue of notice. Therefore, the Court determines that the Rider is ambiguous and therefore, summary judgment is not warranted as there is a material question of fact regarding the application of the notice provision of the rider.
IV. Revised Audit
Defendant states that the audit performed by Plaintiffs for the period of September 1, 2010 through December 1, 2010 and produced on April 9, 2014 - after the discovery period had closed - should not be admissible in this action. In Plaintiffs' Second Amended Complaint, it alleged that DeRosa Tennis owed $84, 304.80 in contributions for the period of September 1, 2010 through the time the Second Amended Complaint was filed on June 20, 2011. Sec. Amend. Compl. ¶ 26. It demanded an audit to determine a more precise figure. Id. ¶¶ 41-45. However, the revised audit was not performed until March 14, 2014.[3] Pl.'s 56.1 ¶ 36. That report was produced to Defendant on April 9, 2014. Delaney Reply Aff. Ex. W. At a conference before this Court on January 24, 2014, it was ordered that any outstanding discovery was to be produced within one week. Docket Minute Entry for Jan. 24, 2014. Thus, when the revised audit was produced, discovery had closed.
Discovery was initially scheduled to close on May 31, 2012. Docket Minute Entry for Jan. 23, 2012. Through multiple extensions of deadlines, discovery eventually closed at the end of January 2014. Plaintiffs do not provide any justification for the failure to produce the revised audit until after the close of discovery and after Defendant served its moving papers for the instant motion. However, Defendant was clearly on notice that a revised audit was to take place for the period of time in question because it was requested in each version of the complaint. Additionally, there is no question that there was always some amount of contributions due for the months of September through December. Under Rule 37 of the Federal Rules of Civil Procedure, failure to disclose discovery in a timely manner may result in the imposition of sanctions, including precluding the dilatory discovery. Fed.R.Civ.P. 37(c), 37(b)(2)(A). "Preclusion of testimony and dismissal are, to be sure, extreme sanctions, to be deployed only in rare situations." Cine Forty-Second St. Theater Corp. v. Allied Artists Pictures Corp., 602 F.2d 1062, 1063 (2d Cir. 1979). However, such actions "are necessary to achieve the purpose of Rule 37 as a credible deterrent rather than a "paper tiger."'" Update Art, Inc. v. Modiin Pub., Ltd., 843 F.2d 67, 71 (2d Cir. 1988) (quoting Cine, 602 F.2d at 1063). Rule 37(b)(2)(A) requires that any sanction issued by the district court for failure to comply with a discovery order be "just." Fed.R.Civ.P. 37(b)(2)(A).
Here, due to the delay in providing the revised audit without justification, the Court precludes Plaintiffs from relying on the audit performed for the period of September 2010 through December 2010 and completed on March 14, 2014. Here, as in Chen v. New Trend Apparel, Inc., "[t]here is no dispute that the [party] did not comply with the court-ordered deadline, did not seek its modification, and have offered no explanation, much less a justification, for their delay." Chen v. New Trend Apparel, Inc., ___ F.Supp.2d ___, No. 11 Civ. 324(GBD)(MHD), 2014 WL 1265916, at *18 (S.D.N.Y. Mar. 27, 2014).
V. Conclusion
Accordingly, the Court DENIES Defendant's motion for partial summary judgment in its entirety. Further, the Court precludes Plaintiffs from relying on the revised audit submitted in connection with Plaintiffs' opposition to Defendant's partial summary judgment motion. The Clerk of the Court is respectfully requested to terminate this motion, Docket No. 48.
The parties are directed to appear before the Court for a pre-trial conference on September 25, 2014 at 11:15 a.m.
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text:
Stockholm Arlanda Airport had the greatest increase in passenger volume among Nordic airports last, and this was largely due to the sharp increase in international travel. The trend looks set to continue this year as well, with passenger growth up ten per cent compared to the same period in 2013. International visitors were up five per cent on an annual basis, which means almost a billion additional kronor to the region and Sweden.
The number of visitors living abroad who landed in Sweden via Stockholm Arlanda Airport increased in 2013 by more than five per cent for a total of almost 3.5 million passengers. According to statistics from the Swedish Agency for Economic and Regional Growth and Statistics Sweden, international visitors spend an average of 800 Swedish kronor per person per day during their visit, which means that revenue just from this increased passenger volume of 170,000 people generates about 700 million kronor for the tourism industry in the region and the country, with visitors spending an average of 5.3 days in Sweden.
"We can now see the results of our active efforts together with other companies and organisations in the tourism sector to attract international visitors and companies to Stockholm and Sweden. We also work to increase the number of direct routes at Stockholm Arlanda, which is essential in order for Swedish businesses to grow and develop. Last year, as many as seven new long-haul routes were set up at Stockholm Arlanda, and there will be another two this spring," says Kjell-Åke Westin, airport director at Stockholm Arlanda Airport.
The growth in passengers looks set to continue in 2014. Figures for the first quarter show the sharp increase in passenger volume continuing at Stockholm Arlanda Airport, up ten per cent for a total of 4.8 million passengers. International passengers accounted for about 3.5 million of these, a rise of ten per cent compared to the first quarter of 2013. Domestic travel is also sharply on the rise, up a full 11 per cent in March for a total of just over 1.2 million domestic passengers, an increase of eight cent during the period January-March this year.
Facts about international visitors:
Consumption by international visitors is broken down into categories such as accommodation, restaurants, car rental and shopping. In 2012, international visitors spent an average of 800 Swedish kronor per person and day in all during their visit to Sweden.
The export value of tourism, measured as the consumption of international visitors in Sweden, increased by 7.5 per cent to 106.5 billion kronor in 2012 compared to the preceding year, which was about 85 per cent more than iron and steel exports (SEK 57.1 billion) and almost three times as much as the value of Swedish passenger cars (SEK 37.6 billion).
In 2013, international tourism increased 2.1 per cent compared to 2012. The export value of tourism constitutes an important contribution to Sweden's economy, but tourism's ability to contribute to increased employment is also crucial. The sector's ability to create jobs for young people and the competence that many people who are first- or second-generation immigrants can contribute are especially important.
Source: Swedish Agency for Economic and Regional Growth/ Statistics Sweden


text:
Broccoli 'n Red Peppers Stir Fried
Total Time
Prep 15 mins
Cook 8 mins
The key to a good stir fry is to have the veggies piping hot but still crisp. Cook this to your liking in terms of crispness. If you like a thicker sauce add 2 tsp of cornstarch to the stock. Great with Chicken. If you wish this suitable for vegetarrian diets use veggie stock in place of the chicken stock I have made this again in 2009. I modified the recipe by omitting the sesame seeds, used no oil just a light spray of "no oil." Not caring for a lot of sauce cut out the stock and used 4 tbsp of vermouth with 3 tbsp light soy - It worked.
Ingredients Nutrition
- 1 tablespoon sesame seeds, toasted
- 2 tablespoons lite olive oil
- 1 teaspoon sesame seed oil
- 1 1⁄2 tablespoons garlic, minced
- 1 tablespoon fresh ginger, finely chopped
- 1 large onion, sliced
- 1 bunch broccoli, cut into bite size pieces
- 1 large sweet red pepper, thinly sliced
- 1⁄2 lb button mushroom
- 1⁄3 cup chicken stock
- 3 teaspoons light soy sauce
- In a wok or large skillet Heat oils over high heat.
- Stir fry the garlic and ginger for 30 seconds, remove garlic& ginger and discard.
- Add onions stir fry 1 minute.
- Add mushrooms, stir fry 1 minute.
- Add broccoli, stir fry 1 minute.
- Add red Pepper and stir fry for 1 minute.
- Add stock& soy sauce, bring to a simmer for about 1 minute or until the veggies are cooked to your liking.
- Sprinkle with Sesame seeds and serve.
Most Helpful
I upped the mushrooms to a full pound, used vegetable stock instead of chicken and had a vegan's delight. I served this with shell pasta, and all the adults at the table (4) loved it. The 8 children turned their noses up at it, but what do they know... I think you have to be over 18 to really appreciate broccoli ;-) Their loss, more for me!
I cooked this for a second time last night, doubled the amount of sauce & served over bow tie pasta. My grandaughter loved it! Would you believe that broccoli is her favourite vegetable - and she's only 5 years old!!
This was great


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January 13, 2010
JERRY BLOCKER, PLAINTIFF,v.CITY OF CHICAGO, DEFENDANT.
City of Chicago ("City") has just filed (1) its Answers and Defenses to the Complaint brought against it by its employee Jerry Blocker ("Blocker") and (2) its motion to dismiss Blocker's Complaint in part, setting that motion for presentment at 9:15 a.m. January 21. This memorandum order is issued sua sponte to address some problematic aspects of City's filings.
To begin with, City's attorney is extraordinarily (and in this Court's view impermissibly) picky in Answer ¶¶ 3 and 7, asserting that the phrase "At all times herein relevant" in the corresponding paragraphs of the Complaint and the term "supervisor" in Complaint ¶ 7 are "vague and undefined." Come now -- any reasonable reader has to understand those references, and unless City's counsel were to file some legitimate partial demurrer to Blocker's allegations on or before January 22, 2010, both of those Answer paragraphs will be stricken and Blocker's corresponding Complaint allegations will be deemed fully admitted.
Next, this Court has substantial difficulty in understanding the bonafides of City's Fed.R.Civ.P. 8(b)(5) disclaimers in Answer ¶¶ 9 and 11 through 14. At least in surface terms, all of the corresponding allegations in the Complaint would appear to be confirmable through City's own employment records. If such is not the case, some explanation should be forthcoming from City's counsel within the same time frame.
As for City's affirmative defenses ("ADs"), two of them appear to be problematic. Here they are:
1. AD 1's assertion that Blocker's claims are time-barred appears to be inconsistent with City's insistence (when referring to Blocker's EEOC charge of discrimination) that Blocker is suing for unlawful retaliation. That being so, the fact that an event that gave rise to the purported retaliation occurred more than 300 days before the EEOC charge obviously does not serve as a legitimate predicate for a limitations defense.
2. AD 4 invokes "the doctrine of unclean hands" in a purely conclusory fashion, violating the principles of notice pleading that are applicable to defendants as well as plaintiffs in federal practice. Unless City's counsel fleshes out that assertion with an appropriate filing within the same time frame as stated earlier, AD 4 will be stricken.
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Cancer Awareness 4By ladyhawk
One of several versions of this one I made using Bryce and DAZ Studio. This one, with the others, will be posted at my site, kitalacetasteepee.com. Dedicated to my mother, Laura, whom I lost to cancer last month. Comes in 1920x1080...thank you.
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This is excellent -- Here is mine-->
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|Graduate Students Section
This section brings together students to exchange ideas, to create a community of young folklorists, and to act as a unified voice for future professionals within AFS. For more information, please contact section convener Dominick Tartaglia.
Click here to join this American Folklore Society interest-group section. Click here to pay section dues.
The Kara Nicole Bayless Best Graduate Student Paper Prize
The recipient of the Kara Nicole Bayless Best Graduate Student Paper Prize Competition will receive $100 and a one-year membership to AFS.
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(1) This paper competition is open for graduate students only. Students must be currently enrolled within a graduate level degree program prior to receiving their PhD. Submissions by PhD candidates are accepted.
Submissions must be received by September 25th.
Send submissions, questions or comments, to the section conveners.
12/17/2016 » 12/20/2016
The 2016 IASTE Conference: Legitimating Tradition
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Sharing the Fire: Northeast Storytelling Conference Voices Across Borders: Creating Connections


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Chipotle Guacamole
Total Time
Prep 10 mins
Cook 10 mins
Perfect with chips as a dip or as a side to grilled steak or meat. Fantastic with fajitas! From Williams-Sonoma.
Ingredients Nutrition
- 3 tablespoons white onions, finely minced, divided
- 1 tablespoon lime juice
- 1 -2 chipotle chile in adobo, minced
- 1⁄2 teaspoon coarse salt
- 2 large avocados
- 2 tablespoons fresh cilantro, minced
- In a small bowl or molcajete, combine 2 tablespoons of the minced onion, lime juice, chiles and salt.
- Smash with fork or pestle to a coarse paste.
- Cut avocados in half, remove seeds and scoop pulp into bowl or molcajete.
- Add the cilantro and mash, leaving some lumps; taste and adjust the salt if necessary.
- Sprinkle with additional cilantro and the reserved 1 tablespoon minced onion.
- Serve immediately.
Most Helpful
Loved this. Made it for a girls night dinner and it was gone instantely!
Used this as a side dish for Recipe #235329 and Recipe #173428. Way lessened the chipotles, added a tad bit of left over diced jalapeno and used dried cilantro. Pulsed it in a food processor. So quick and delish. Ole! Muchas gracias, senora! Made for ZWT5- Zaar Chow Hounds.
This was a smoky guacamole which is something that I haven't tasted before. I mixed in all of the onion and cilantro at the beginning. I used the full 2 chipotle chiles and a couple of teaspoons adobo sauce. Served with tortilla chips at a BBQ tonight. Made for ZWT5.


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|Aotrscommander RPG Superstar 2008 Top 32
Does anyone know whether or not there is any pricing/weights for mosquito nets and if so, where?
I'm about to start Shackled City (set in Sargava). Both Geart of the Jungle and the Sargava soruce book mention mosquitos as a danger - and even mention mmosquito nets once - but I can't find any actual prices or weights for them anywhere, including a google search.
It's a bit of a flavour issue, granted, but it does seem like it's something that the PCs should be having.
If there is not, what do you think might be reasonable? One of my players suggested using the price for canvas but half the weight; I'm otherwise open to suggestions.


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U.S. Energy Information Administration - EIA - Independent Statistics and Analysis
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Posted December 2, 2016Today in Energy
Federal leasing for offshore wind grows as first U.S. offshore wind farm comes online ›
The first commercial U.S. offshore wind farm, Block Island, is scheduled to come online in late 2016. Located three miles off the southeastern coast of Rhode Island, Block Island consists of five wind turbines that will produce 30 megawatts of electricity. The electricity will be used on Block Island, where electricity is currently supplied by diesel-powered generators. More›
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Data Highlights
WTI crude oil futures price
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Action - Semi-Auto
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Caliber - .40 S&W
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Weight - 2.0 Lbs.
With a 25 year track record of reliability, durability and performance in the field, P-Series pistols are simple, economical, and serviceable and can be counted on to perform in adverse conditions. The P95 is designed to be easily maintained and can be field-stripped into five major subassemblies for cleaning, without the need for special tools. Its black, custom-compounded polymer grip frame has a built-in picatinny rail to accept modern lights and lasers to keep your sighting options open and also features contoured and checkered grip panels, front-strap, and backstrap. The K designation of the P94 denotes a stainless steel finish. This handgun features an ambidextrous safety with a decocking lever and fixed 3-dot sights and includes two 10-round magazines and the original factory hard case. Its grips and bore are in excellent condition and its metal is in very good condition.


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Blackberry fertility in late summer
Now is the time to do tissue sampling in blackberry. Plant tissue samples will help you determine needs and adjustments. In NC, samples should be taken after fruit harvested from the plants. Leaves from the 3-5th node of the primocane plant should be sampled and sent to NCDA and they will make recommendations for the following season. Keep your records so you can see if there are trends in your fields. Below are the recommended levels of macro and micronutrients.
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Watch The Tick (2016) - Season 1 (2016)
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An Illicit Temptation (Tang Dynasty #3.5)
by Jeannie Lin (Goodreads Author)
Dao is a house servant masquerading as a princess on her way to marry a powerful chieftain. As a lowly commoner with no prospects, she is content to be an alliance bride until an encounter with Kwan-Li, her enigmatic escort, tempts her with the promise of forbidden love. On their adventure through the wild Khitan steppe, Dao discovers Kwan-Li has secrets of his own...
ebook, 60 pages
Published September 1st 2012 by Harlequin
(first published January 1st 2012)
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Sep 19, 2012 Stella rated it it was amazing
Shelves: historical, romance, for-review, 2012
You might remember how much I enjoyed My Fair Concubine, the 3rd book in Jeannie Lin's Tang Dynasty series (though no need to worry if you haven't read the previous books, they can be read as a standalone, the 3rd book was the 1st I read from the series as well), so when I heard that Jeannie Lin decided to write a short sequel novella, featuring one of the most adorable and entertaining secondary characters of My Fair Concubine I couldn't wait to read An Illicit Temptation.
An Illicit Temptation ...more
An Illicit Temptation ...more
Jan 01, 2013 Carin rated it really liked it
An Illicit Temptationis a companion piece to My Fair Concubine an while it can be read alone it is best read as the sequel it was meant to be.
Dao is thrust into a world she is ill prepared for, that of being the Princess by decree sent to be an Alliance Bride and help secure a peace treaty between her Kingdom and the neighboring one. Dao was raised as a servant because she was the daughter of the second wife in the household, as such the opportunity to be a Princess is one she isn't going to pas ...more
Dao is thrust into a world she is ill prepared for, that of being the Princess by decree sent to be an Alliance Bride and help secure a peace treaty between her Kingdom and the neighboring one. Dao was raised as a servant because she was the daughter of the second wife in the household, as such the opportunity to be a Princess is one she isn't going to pas ...more
Sep 04, 2012 Anna Bowling rated it really liked it
Shelves: historical-romance
Readers who are familiar with heroine Dao (aka Princess An-Ming)from previous Tang Dynasty books will be eager to read her story in An Illicit Temptation. Part Tang Dynasty western, part Cinderella with an iron will, this novella is anything but predictable.
Plans for a peace marriage with the head of the Khitan have burned through two prospective brides so far (The Dragon and the Pearl and My Fair Concubine) as each heroine finds her true destiny elsewhere, and the imperial court still owes the ...more
Plans for a peace marriage with the head of the Khitan have burned through two prospective brides so far (The Dragon and the Pearl and My Fair Concubine) as each heroine finds her true destiny elsewhere, and the imperial court still owes the ...more
Sep 20, 2012 Aoi rated it liked it
Shelves: hf-china
"Illicit Temptation" is a short seven chapter follow-up to "My Fair Concubine". We go on Dao's journey through the Khitan wilderness on the way to marry the warlord khagan. As the poem goes, the "other side of heaven" is a different world altogether, and none of the problems that plagued the protagonists in the prequel matter anymore. This marriage is for symbolic purposes only, doesn't matter if it is to a daughter of a high- ranking family, or to the illegitimate child of the same high-ranking ...more
May 13, 2015 Librariasaurus rated it really liked it
I loved this story! It filled the gaps left behind in My Fair Concubine nicely, especially since I felt that that story had lacked depth when it came to Dao and what happened to her after she left Changan. I am so glad she ended up with true love and genuine happiness. Kwan-Li is an excellent character and the first of Jeannie Lin's male characters to truly fight for the woman he loved.
Sep 28, 2012 Aileen rated it liked it
i hve to say that i love the previous book My fair concubine..ehhehe:)
Apr 28, 2015 Shopgirl rated it really liked it
Shelves: romance, historical, novellas
This one picks up after the ending of My Fair Concubine and follows the story of Dao as she's traveling to the north to be married. Dao wasn't one of my favorite characters from that book, but I liked her a bit more in this story. She's better developed here, but I was left feeling that she wasn't particularly strong. I guess my issue is that in a lot of Lin's work, the women see their honor and duty--to family and empire--as a strength, and I have no issues with that per se, but given that most ...more
Apr 11, 2013 Elizabeth rated it liked it
Shelves: anthology, historical-romance, romance, asia-romance, short-story-romance
This short story is a companion to My Fair Concubine (of course I didn't realize that when I purchased it). I enjoy Ms. Lin's work, but wish this wasn't a short story. Too often with romance short stories, the tale feels like a truncated version of what could have been a book. THis is not exception. It's the tale of Dao, the illegitimate half sister of the heroine in My Fair Concubine. She's taking her sister's place as the arranged bride to the Chief of a clan to the north.
She is being escorte ...more
She is being escorte ...more
Sep 03, 2012 Morwa Pal rated it it was amazing
In "An Illicit Tempation," a serving girl takes the place of princess in this tale that takes our heroine across the wild steppe of ancient Asia. Though young Dao is grateful for her sudden elevation in status, it means marrying a barbarian far from the only home she's ever known, something she is quite willing to accept. But being a princess loses its appeal as Dao falls for her escort, Kwan-Li, a man with a hidden past.
Author Jeannie Lin's ability to take the reader to a foreign land in a time ...more
Author Jeannie Lin's ability to take the reader to a foreign land in a time ...more
Jan 13, 2014 Lindsay rated it it was amazing
This review has been hidden because it contains spoilers. To view it, click here.
May 05, 2014 Hilly rated it it was ok
2.5 stars. I did not round this rating up, because the slight story was not woven together well, either with its preceding story, or within its own narrative.
Oct 18, 2012 Angel added it
I'M RLY EXCITED TO START READING THIS.... historical romance stories that center on non-white ppl, you are the real temptation here :'|
Oct 02, 2012 Harlequin Historical added it
Shelves: historical, harlequin, ebook
Miniseries: Chinese Tang Dynasty
Category: Historical Romance
Category: Historical Romance
USA TODAY Bestselling author Jeannie Lin grew up fascinated with stories of Western epic fantasy and Eastern martial arts adventures. When her best friend introduced her to romance novels in middle school, the stage was set. Jeannie started writing her first romance while working as a high school science teacher in South Central Los Angeles. After four years of trying to break into publishing with ...moreMore about Jeannie Lin...
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searching GLP for the "Tui Bei Tu" prophesied korean superman/savior who will defeat the illuminati & end WW3 between USA & China
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[quote:Anonymous Coward 28831436:MV8xNTYxMjQwXzM0Nzk1NTY2X0JBRjgyREZC] [quote:APOLLO ILLUMINIST:MV8xNTYxMjQwXzM0NzkzOTg3XzdGMEQ5NjVC] :hangedmanthoth: Using the Ascendant, the Midheaven or Medium Coeli (M.C.), the Descendant, and the Imum Coeli ( I.C.). of the host chart, the alignment will be prepped to reverse just enough to carry and convert the Indwelt spirit leaving the sensation of the hanged man. This is why Odin hung upside down on the Yggdrasil tree to obtain wisdom. The indwelling spirit will teach the host all knowledge and the forbidden sciences of death and resurrection. The NOBODY, the INDWELT Host that is chosen will be infused with all knowledge that only help from above can bring. [/quote] It is when the transit North node (Dragon's head) is positioned in the Nobody's birth South node (Dragon's tail) that the indwelling of the Ibbur will take place. This reversal of the North node and the South node is what the Ourosboros represents. http://imagenessss.com/wallpaper/Ouroboros-Fma/ [/quote]
Original Message
i wanted to create a separate thread based on this glp
Thread: Chinese are preparing for nuclear war because of an ancient prophecy book Tui Bei Tu
and "Tui Bei Tu" I Ching prophecy poems link:
link to www.alexchiu.com
what drew my attention to the above glp thread is poem
number 57 which occurs after WW3 nuclear/sub/ufo war
between USA & China.
poem 57 predicts:
"In an extreme situation, things turn around. A three-feet tall kid, made all foreigners bow down.
When Blue West and Red East struggle, a son of God appears, a gentleman who brings peace and stops the killing.
This unbelievable genius is from the middle of the two, westernized and thus ended all wars for good."
the picture on the poem 57 card shows an image of a boy pouring out the fire with water. (aquarius)
what got me standing straight up in my chair at full
attention was that there is an obscure illuminati
riddle/prophecy that the one who will take the spear of
destiny and plunge it into satan and defeat him and
deliver him before jesus christ as a footstool will
be "born of the chosin, but not chosin". or better
interpretation, some illuminists believe that one day,
a person will be born in korea who will one day
defeat their god king, satan, when he is here walking
the earth among men (quetzcoatl).
indeed, these I Ching prophecy poems may be the
origin of this illuminati legend.
from what i can interpret from poem 57, it looks like
the "3 feet tall kid" is some kind of descriptive
riddle as to the identity of the korean superman/savior
and not the actual height of the korean superman/savior
as no one would listen to a midget (sorry). korean adults
are short, but not that short.
what we are clearly looking for is some sort of
full blooded korean adult male (gentleman), who is a
genuine learned christian (shepherdschapel), has
high emotional intelligence along with book smarts,
and who is also americanized (either american citizen,
or immigrant). he will be a native english speaker
because an american leader with a foreign accent would
never be accepted by the american people.
the term "from the middle of the two" can only mean
korean as korea is the only qualified nation between
china and the usa. there is no way china could accept
a peacemaker coming from japan and japan is a dying
people anyway. in addition, there is no way the
peacemaker could be caucasian because china would never
trust a peace brokered by a white european.
the illuminati would never endorse a true peace between
the usa and china as they don't share power. therefore,
this korean superman/savior would have to defeat the
illuminati cockroaches in the usa and then broker the
peace with china (china would trust the word of one of
their korean brethren).
furthermore, because the inference in the poem 57
prophesy that this korean superman/savior is
enlightened and american, i therefore can conjecture
that this korean superbeing kwisatz haderach surfs
thus, if you are a korean adult male who conforms loosely
to the above parameters, please post in this thread
and make your presence known. in fact, if you are korean
at all, regardless of geographic location, please post
in this thread. if you are friends with a korean adult
male that conforms loosely to the above parameters, please
also post.
because the "Tui Bei Tu" poem prophesies seem
to have an excellent track record, i am now in search of
the prophesied korean superman/savior who will bring
balance to the force.
from my own personal experience, most of the koreans
i have come across are wankers, so this prophecy to me
is extremely extremely unlikely. however, the prophecy is
what it is and it does have a track record. if we can
locate him, then i want to get on his bandwagon early.
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Tactical Pants - Galls
A popular choice for public safety professionals, the Galls Tactical Pants are...
The new portable weapons rack from Spacesaver has a variety of features to help officers transport the rack without removing the weapons. A cart with industrial grade casters provides smooth movement around a facility; ergonomic handles with an integrated 90-degree stop allow for easy grip; and barrel supports, available in two sizes to support numerous weapons, keep weapons in place during transport.
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