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New Jersey Superior Court, Law Division
Decided: December 3, 1981.
CENTRAL NEW JERSEY JEWISH HOME FOR THE AGED, PLAINTIFF,v.THE NEW YORK TIMES CO. ET AL., DEFENDANTS
Quackenboss, J.s.c.
[183 NJSuper Page 446] This controversy arose in the course of pretrial discovery. It may have interest beyond the perimeters of this lawsuit because it involves the confrontation between press freedom and the right of a defamation plaintiff to elicit information critical in
[183 NJSuper Page 447]
most such cases. The collision of these valued interests is occurring with increasing frequency in libel actions.
The case was instituted by Central New Jersey Jewish Home for the Aged and its Director, Elliot Solomon. They allege they were defamed in an article which appeared in the New York Times on December 16, 1979 and which had been written by Gertrude Dubrovsky, both defendants. The alleged libel involved charges of inadequate care of patients, labor strife at the Home and other improprieties practiced by the Home and Solomon. Plaintiffs charge malice and seek both compensatory and punitive damages. These defendants raise fair comment and opinion and absence of malice in their answer.
This motion resulted when hostilities broke out during the deposition of Gertrude Dubrovsky. She was asked to produce preliminary drafts of her article and, through her attorney, has refused. She was also confronted with the report of a state agency whose investigation seemed to exonerate plaintiffs with respect to at least some of the charges against them mentioned in the article. Ms. Dubrovsky apparently had knowledge of the report. She admitted that she did not consider referring to it in her article. However, when asked why she did not, her attorney directed her not to answer. Defendants' position is that these inquiries intrude into their state of mind and editorial processes, and plaintiffs have no right to such intrusions.
This motion is phrased in broad, general terms ("for an Order compelling defendants to answer all inquiries relevant to state of mind and the editorial process"), but the above two disputes are the only ones presented and my ruling is specifically limited to the propriety of those two areas of inquiry.
Defendants seem to agree that the First Amendment to the Federal Constitution does not afford them protection against the inquiries plaintiffs propose. Herbert v. Lando , 441 U.S. 153, 99 S. Ct. 1635, 60 L. Ed. 2d 115 (1979), is dispositive. However, they contend that New Jersey's "Shield Law" (N.J.S.A. 2A:84A-21) and Article 1, para. 6, of the State Constitution prohibit plaintiffs
[183 NJSuper Page 448]
from inquiring into their editorial processes and the bases for their editorial decisions. Let us first consider the applicability of the "Shield Law":
Subject to Rule 37, a person engaged on, engaged in, connected with, or employed by news media for the purpose of gathering, procuring, transmitting, compiling, editing or disseminating news for the general public or on whose behalf news is so gathered, procured, transmitted, compiled, edited or disseminated has a privilege to refuse to disclose, in any legal or quasi-legal proceeding or before any investigative body, including, but not limited to, any court, grand jury, petit jury, administrative agency, the Legislature or legislative committee, or elsewhere.
a. The source, author, means, agency or person from or through whom any information was procured, obtained, supplied, furnished, gathered, transmitted, compiled, edited, disseminated or delivered: and
b. Any news or information obtained in the course of pursuing his professional activities whether or not it is disseminated. [ N.J.S.A. 2A:84A-21]
Defendants make a close-range examination of this language. From paragraph (a) they extract the words "means" and "edited" and conclude that an author's and editor's mental processes in evaluating and selecting material are protected from compulsory disclosure; thus, protection for the editorial process. They reason further from "information . . . . whether or not it is disseminated," in paragraph (b), that the preliminary drafts of the article are protected as well. After all, what are such drafts if not undisseminated information?
However, such an approach does not always yield a clear view of the meaning and intent of a statute. Indeed, in this case it could be said to produce a result in conflict with defendants' position. Paragraph (a) protects "The source, author, means, agency or person from or through whom any information was procured . . . ." (Emphasis supplied). The use of the personal pronoun "whom" suggests that the entire paragraph protects only the disclosure of the identity of persons, not thought processes. And as for including a journalist's preliminary drafts within the meaning of "information obtained," it gives that phrase virtually no bounds at all.
As with studying a fine painting, a better appreciation and understanding of its meaning is usually gained by stepping
[183 NJSuper Page 449]
back and making one's inspection from a respectable distance. Doing so causes me to conclude that the "Shield Law" was not intended to protect the editorial process as revealed by material selection decisions and preliminary drafts of a newspaper article.
Historically, the reporter's concern has been the protection of confidential sources and confidential information gained. Most certainly, our Legislature enacted N.J.S.A. 2A:84A-21 in its original form to protect such sources and information recognizing how necessary such protection was in order to insure an untrammeled flow of information to the public. There is no evidence that satisfied me that the statute in its present form is intended to protect more.
I reject the argument that the word "means" was inserted in the statute to broaden its coverage to include the editorial process. As observed by Judge Knight in Beecroft v. Point Pleasant Print. & Pub. Co. , 82 N.J. Super. 269 (Law Div.1964), this was undoubtedly part of a revision designed to evade the ruling of State v. Donovan , 129 N.J.L. 478 (Sup.Ct.1943), wherein the identity of a messenger who delivered an article to the newspaper had to be revealed.
Defendants also argue that recent cases, such as In re Farber , 78 N.J. 259 (1978), cert. den., 439 U.S. 997, 99 S. Ct. 598, 58 L. Ed. 2d 670 (1978), and State v. Boiardo , 82 N.J. 446 (1980), evidence a policy favoring a broad interpretation of the "Shield Law." But neither case involved the claimed protection for the editorial process. What is more, the very language of Farber seems to support the view that while courts should construe the statute liberally in order to effectuate the protection intended, the subject of that protection is limited to confidential sources and information:
We read the legislative intent in adopting this statute in its present form as seeking to protect the confidential sources of the press as well as information so obtained by reporters and other news media representatives to the greatest extent permitted by the Constitution of the United States and that of the State of New Jersey. [78 N.J. at 270.]
[183 NJSuper Page 450]
There is no indication in this language that the "Shield Law" prevents inquiry into the thinking processes of the writer in selecting and rejecting material or as revealed by the various preliminary drafts of the article. I do not believe it does.
What is more, if I concluded that such protection did exist, I would also be forced to conclude that defendants had waived that protection by raising the defenses they do and putting in issue the good faith of their editorial process.
Waiver of a newspaperman's privilege under the "Shield Law" has been considered before by our courts. Brogan v. Passaic Daily News , 22 N.J. 139 (1956), involved the refusal to reveal the source of defendant's story. The Supreme Court felt that the privilege to refuse that information had been waived when the reporter testified in his defense that the defamatory material had been given by a "reliable source." The court's rationale was explained most clearly in Justice Heher's concurring opinion:
The defendants could not, by way of defense, justify the publication as emanating from a "reliable source", and then refuse to identify the source and thus preclude the qualitative assessment pertinent to the sufficiency of the defense in this regard. The defendant cannot invoke the statutory privilege to render conclusive their own evaluation of the character and quality of the source. This is basic to due process. Otherwise, cross-examination relevant to a crucial issue would be denied." [at 155-156.]
Following that reasoning, Beecroft v. Point Pleasant Print. & Pub. Co. , 82 N.J. Super. 269 (Law Div.1964), held that the privilege not to disclose during discovery confidential sources and information was waived by raising such defenses as fair comment, good faith and lack of malice. More recently, the very same conclusion was reached with respect to waiver of the "Shield Law" privilege in Resorts International, Inc. v. N.J.M. Associates , 180 N.J. Super. 459 (Law Div.1981).
While Brogan might be distinguished from the situation here and while Beecroft and Resorts may not be binding on this court as a technical matter, these cases represent a view of our "Shield Law" and the waiver of the privileges it confers which
[183 NJSuper Page 451]
has existed for 25 years. It should not be casually discarded by a trial court. I would, however, not hesitate to distinguish Brogan and to declare my independence of the decisions of my colleagues in the Law Division if I felt there was legal justification therefor. I do not believe there is. I believe these cases accurately reflect the law respecting waiver of "Shield Law" privileges.
Our Legislature has seen fit to amend the "Shield Law" several times since its original passage. It was amended after Brogan and, again, after Beecroft. If our courts were utilizing the concept of waiver to restrict the protection of the "Law" contrary to the intention of the Legislature, one would think the amendments would have included language clearly demonstrating that fact. They do not. One can well reason, then, that the Legislature does not disagree with the limitations placed on the "Shield Law" by Brogan and Beecroft.
In frustration, defendants argue that the Brogan, Beecroft and Resorts view of waiver is a limitation that effectively destroys the privilege, that the privilege completely loses its efficacy in libel actions where issues of malice and good faith in the editorial process are almost always involved. This is not so much an argument against the rule as it is simply a recognition of the fact that the privilege is inappropriate in most libel actions -- and should be , according to the Brogan, Beecroft and Resorts courts.
I turn now to a consideration of the debate over whether Art. I, para. 6 of the New Jersey Constitution denies plaintiffs the right to inquire into the editorial process in the interest of free press.
As mentioned earlier, defendants concede that the United States Constitution does not prevent inquiry into the editorial judgment used to construct the article in question. Herbert v. Lando, supra. They argue, however, that our State Constitution offers broader protection and does preclude the intrusion into defendants' mental processes which plaintiffs seek here. Art. I, para. 6, provides:
[183 NJSuper Page 452]
No law shall be passed to restrain or abridge the liberty of speech or of the press.
Emphasis is placed on the inclusion of "restrain" which distinguishes our Constitution from the First Amendment to the U.S. Constitution. Defendants argue -- and quite cogently -- that this addition to our Constitution was intended to grant additional protection to speech and to the press. But does that additional protection extend as far as defendants urge? Does it extend so far as to deny a defamation plaintiff the right to see preliminary drafts of the article in question and to ask why certain material was included while other pertinent information was omitted? No decided case resolves this question.
Classic form in deciding such issues requires recognizing the competing interests involved in the controversy and weighing them. For that reason defendants argue eloquently of the value of vigorous, robust language and of uninhibited, wide-open debate. They say these attributes of a truly free press will be stifled by the right of a civil litigant to question the choice of material and language. The result will be to require news articles to be written virtually in sterile form.
Plaintiffs contend -- with equal effectiveness -- that defendants overreact and that there is no real threat presented to a free press. The threat, if any, is to an irresponsible press. They point out the need of a plaintiff, defamed in an article, to learn about the authorial and editorial thinking that produced the article in order to show improper motivation.
These and other policy considerations to be found in this conflict were discussed at length by Justice White in his opinion in Herbert v. Lando, supra. No purpose would be served by my reciting that lengthy discourse herein. However, speaking for the majority of the court, he balanced those considerations in favor of the inquiring alleged defamee. I concur in this policy judgment made by the Supreme Court.
To be sure, Justice White's thinking was in the context of federal First Amendment rights, but the policy considerations are identical regardless of which constitution is in issue.
[183 NJSuper Page 453]
Unquestionably, granting civil litigants license to inquire into the mental processes of journalists will do some disservice to a responsible free press. However, the disservice done will be minimal. But if this right to inquire is denied, a far more significant loss will be suffered by many truly wronged persons. In many cases of actionable libel, denying the right to such discovery will effectively deny plaintiff a remedy. And the primary beneficiary of such a rule will be the malicious or irresponsible defamer.
These considerations lead me to the conclusion that even the heightened protection afforded the press by the New Jersey Constitution does not prevent these plaintiffs from examining the preliminary drafts of the article and from having answers to the questions which Ms. Dubrovsky declined to answer at her deposition. Plaintiffs' motion is granted.
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United States District Court, S.D. Illinois
October 29, 2014
KAI A. REEVES, Petitioner,v.UNITED STATES OF AMERICA, Respondent. Criminal No. 09-cr-40069-GPM.
J. PHIL GILBERT, District Judge.
This matter comes before the Court on petitioner Kai A. Reeves' motion to vacate, set aside or correct his sentence pursuant to 28 U.S.C. § 2255 (Doc. 1), memorandum in support (Doc. 2), and amendment (Doc. 11). The Government has responded (Docs. 8 & 24), and Reeves has replied to the later response (Doc. 25).
I. Background
On July 9, 2010, Reeves entered an open plea to one count of conspiracy to distribute 50 grams or more of crack cocaine (Count 1), one count of conspiracy to distribute heroin (Count 2), one count of distribution of less than 5 grams of crack cocaine (Count 10), one count of distribution of 5 grams or more of crack cocaine (Count 11), and one count of distribution of heroin (Count 12). The presentence investigation report ("PSR") prepared to assist the Court in sentencing Reeves found that Reeves' relevant conduct included 793 grams of crack cocaine and 100 grams of heroin. The finding regarding crack cocaine was based on an observation reported to law enforcement by a confidential source. Prior to the sentencing hearing, Reeves' counsel objected to the PSR's relevant conduct finding and the failure to apply the Fair Sentencing Act of 2010 ("FSA"), Pub. L. No. 111-220, 124 Stat. 2372 (2010) (Doc. 536), but eventually withdrew the relevant conduct objections. On November 15, 2010, the Court[1] sentenced the petitioner to serve 121 months in prison, and judgment was entered November 22, 2012. The petitioner did not appeal his conviction.
Reeves' § 2255 motion bears a signature date of November 24, 2011, and his supporting memorandum bears a signature date of November 24, 2012. Both documents reached the Court for docketing on May 4, 2012. In his § 2255 motion, Reeves argues that his trial counsel was constitutionally ineffective in violation of his Sixth Amendment rights for the following reasons:
he failed to file a notice of appeal;
he improperly withdrew the objections to the PSR's relevant conduct finding; and
he failed to argue on appeal for application of the Fair Sentencing Act.
The Court later allowed Reeves to add the additional argument, based on Alleyne v. United States, 133 S.Ct. 2151 (2013), that his counsel was constitutionally ineffective for failing to argue that facts triggering a statutory minimum sentence must be proven to a jury beyond a reasonable doubt.
II. Analysis
The Court must grant a § 2255 motion when a defendant's "sentence was imposed in violation of the Constitution or laws of the United States." 28 U.S.C. § 2255. However, "[h]abeas corpus relief under 28 U.S.C. § 2255 is reserved for extraordinary situations." Prewitt v. United States, 83 F.3d 812, 816 (7th Cir. 1996). "Relief under § 2255 is available only for errors of constitutional or jurisdictional magnitude, or where the error represents a fundamental defect which inherently results in a complete miscarriage of justice." Kelly v. United States, 29 F.3d 1107, 1112 (7th Cir. 1994) (quotations omitted). It is proper to deny a § 2255 motion without an evidentiary hearing if "the motion and the files and records of the case conclusively demonstrate that the prisoner is entitled to no relief." 28 U.S.C. § 2255(b); see Sandoval v. United States, 574 F.3d 847, 850 (7th Cir. 2009).
All of Reeves' claims in his § 2255 motion assert that his counsel was constitutionally ineffective in violation of his Sixth Amendment right to counsel. The Sixth Amendment to the Constitution provides that "[i]n all criminal prosecutions, the accused shall enjoy the right... to have the Assistance of Counsel for his defence." U.S. Const. amend. VI. This right to assistance of counsel encompasses the right to effective assistance of counsel. McMann v. Richardson, 397 U.S. 759, 771, n. 14 (1970); Watson v. Anglin, 560 F.3d 687, 690 (7th Cir. 2009). A party claiming ineffective assistance of counsel bears the burden of showing (1) that his trial counsel's performance fell below objective standards for reasonably effective representation and (2) that this deficiency prejudiced the defense. Strickland v. Washington, 466 U.S. 668, 688-94 (1984); United States v. Jones, 635 F.3d 909, 915 (7th Cir. 2011); Wyatt v. United States, 574 F.3d 455, 457 (7th Cir. 2009).
To satisfy the first prong of the Strickland test, the petitioner must direct the Court to specific acts or omissions of his counsel. Wyatt, 574 F.3d at 458. The Court must then consider whether in light of all of the circumstances counsel's performance was outside the wide range of professionally competent assistance. Id. The Court's review of counsel's performance must be "highly deferential[, ]... indulg[ing] a strong presumption that counsel's conduct falls within the wide range of reasonable professional assistance." Strickland, 466 U.S. at 689; accord Wyatt, 574 F.3d at 458. Counsel's performance must be evaluated keeping in mind that an attorney's trial strategies are a matter of professional judgment and often turn on facts not contained in the trial record. Strickland, 466 U.S. at 689. The Court cannot become a "Monday morning quarterback." Harris v. Reed, 894 F.2d 871, 877 (7th Cir. 1990).
To satisfy the second prong of the Strickland test, the plaintiff must show that there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceedings would have been different such that the proceedings were fundamentally unfair or unreliable. Jones, 635 F.3d at 915; Adams v. Bertrand, 453 F.3d 428, 435 (7th Cir. 2006). "A reasonable probability is defined as one that is sufficient to undermine confidence in an outcome." Adams, 453 F.3d at 435 (citing Strickland, 466 U.S. at 694).
A. Failure to File Notice of Appeal
The Court held a hearing on February 26, 2014, to address Reeves' argument that his counsel was constitutionally ineffective for failing to file a notice of appeal. At that hearing, the Court heard testimony from Reeves (by telephone) and his trial counsel, Neal Connors, and received documentary evidence. Based on the evidence, the Court rejected this argument as a basis for § 2255 relief. The following is a brief recap of the Court's findings and conclusions, which were explained in more detail on the record of the hearing.
An attorney's failure to file a notice of appeal when requested to do so falls below objective standards for reasonably effective representation and, in fact, is tantamount to no representation at all on appeal. In such circumstances, a petitioner is not required to show prejudice under the Strickland test. Such abandonment is a per se violation of the petitioner's Sixth Amendment right to counsel. United States v. Nagib, 56 F.3d 798, (7th Cir. 1995), Castellanos v. United States, 26 F.3d 717, 719 (7th Cir. 1994).
At the February 26, 2014, hearing, Reeves testified that immediately after the sentencing hearing he had asked Connors to file a notice of appeal and that Connors said he would do so. Connors testified that at no time did Reeves ask him to file a notice of appeal and that, if he had, Connors would have done so as he has done in numerous other cases. Based on the demeanor of the witnesses, their manner of testifying, and the reasonableness of their testimony in light of the other evidence, the Court found Connors more credible than Reeves with respect to whether Reeves had asked Connors to file a notice of appeal. Accordingly, the Court found Reeves had not carried his burden of showing he had asked Connors to file a notice of appeal and rejected this argument as a basis for § 2255 relief.
As for Reeves' other grounds in support of § 2255 relief, the Court declines to hold a hearing because, as explained below, the record of the case clearly demonstrate he is entitled to no relief.
B. Timeliness of Petition
The Government touches on the issue of the timeliness of Reeves' § 2255 motion. A petitioner seeking relief under § 2255 must file his motion within the one-year statute of limitations set forth in § 2255(f). Prisoners used to be able to file motions under § 2255 at any time during their sentences. However, on April 24, 1996, Congress enacted the Antiterrorism and Effective Death Penalty Act ("AEDPA"), Pub. L. No. 104-132, tit. I, § 106 (codified at 28 U.S.C. §§ 2244(a) & (b), 2255(f)), which added a one-year limitations period for a motion attacking a sentence. The one-year limitations period runs from the latest of four events:
(1) the date on which the judgment of conviction becomes final;
(2) the date on which the impediment to making a motion created by governmental action in violation of the Constitution or laws of the United States is removed, if the movant was prevented from making a motion by such governmental action;
(3) the date on which the right asserted was initially recognized by the Supreme Court, if that right has been newly recognized by the Supreme Court and made retroactively applicable to cases on collateral review; or
(4) the date on which the facts supporting the claim or claims presented could have been discovered through the exercise of due diligence.
28 U.S.C. § 2255(f).
The relevant triggering date in this case is the date Reeves' conviction became final. Judgment was entered in his case on November 22, 2010, and his period to appeal expired and his conviction became final fourteen days later, on December 6, 2010. See Fed. R. App. P. 4(b)(1)(A). Thus, Reeves had up to and including December 6, 2011, to file a § 2255 motion. Clarke v. United States, 703 F.3d 1098, 1100 (7th Cir. 2013). Reeve's § 2255 motion bears a date of November 24, 2011, his supporting memorandum bears a date of November 24, 2012, and the Court received and docketed both documents on May 4, 2012. In light of the extraordinarily long period between the date Reeves allegedly mailed the motion and the date the Court received it, along with the memorandum's clearly false date (it post-dates the Court's receipt of the memorandum by more than six months), the Court suspects Reeves is playing fast and loose with the truth as to the mailing dates to which he has sworn. Nevertheless, because resolution of the mailing date discrepancy would likely require a hearing and because the Court can more efficiently dispose of Reeves' motion on the merits, the Court declines to delve farther into the timeliness issue.
C. Failure to Investigate and Make Arguments
Reeves faults his counsel for failing to investigate evidence and failing to make arguments to the Court based on what he would have found in that investigation. With two specific exceptions noted below, Reeves' allegations are vague, asserting simply that counsel failed to investigate various aspects of sentencing facts, failed to present a defense to the PSR's relevant conduct finding, failed to pursue leads provided by Reeves, failed to review discovery materials, failure to object to uncorroborated, unreliable and conflicting sentencing information referred to in the PSR, and failed to subject the recommended relevant conduct finding to adversarial testing.
However, to establish prejudice, a § 2255 petitioner that asserts counsel was ineffective for failing to conduct an investigation must point the Court to "sufficiently precise information, that is, a comprehensive showing as to what the investigation would have produced" that would have had a reasonable chance of obtaining a different result. Hardamon v. United States, 319 F.3d 943, 951 (7th Cir. 2003) (internal quotations and citation omitted); accord Richardson v. United States, 379 F.3d 485, 488 (7th Cir. 2004). He cannot rely on vague allegations that the investigation was insufficient or would have yielded favorable evidence. See Hardamon, 319 F.3d at 951. Similarly, when the petitioner asserts counsel should have made a different argument, he must tell the Court what argument counsel should have made that would have had a reasonable chance of changing the result. Here in these vague allegations, Reeves complains about his counsel's inadequate investigation and argument, but he doesn't explain what counsel could have found or argued had he performed differently and how it could have had a reasonable chance of changing the result of the sentencing.
One of the two specific allegations of failure to investigate relates to Brandy Scott, who provided a statement contained in the PSR regarding crack cocaine she purchased from Reeves that was inconsistent with a statement given by another confidential witness. She said she purchased crack cocaine from Reeves three times every day while the other witness said Reeves was making weekly trips to Texas to purchase drugs. Reeves contends Scott must have been lying because she could not have purchased drugs from him while he was out of town. Reeves claims he gave his counsel leads that would have demonstrated Scott was "a known liar who had a penchant for fabricating information." Pet.'s Mem. 8 (Doc. 2).
Even had counsel been deficient in pursuing impeaching information regarding Scott sufficient to cast doubt on her statement to law enforcement officers, Reeves suffered no prejudice from the failure to show Scott was untruthful. The Court did not consider Scott's testimony in calculating Reeves' relevant conduct.[2]
Finally, Reeves points to the what he argues is patently incredible information in the PSR that Reeves sold 3.2 grams of crack cocaine for $150 and a few days later sold 6.7 grams for $200 (it is unclear which statement Reeves contends is incredible in light of the other). The implication is that counsel should have argued one of these transactions was so far-fetched that it could not have been possible.
Again, Reeves suffered no prejudice from counsel's failure to highlight the alleged improbability of one of these transactions. The Court did not consider either transaction in its relevant conduct calculation.
Because Reeves has failed to show any prejudice from counsel's investigation or arguments to the Court, § 2255 relief is not warranted on this basis.
D. Failure to Stand by Objections to Relevant Conduct
Reeves argued that his counsel withdrew his objections to the PSR's relevant conduct finding during the sentencing hearing without consulting with Reeves. Relevant conduct, Reeves correctly notes, had been an issue specifically mentioned at the plea hearing as being in dispute, and his counsel deprived him of an opportunity to have the Court resolve the dispute. At sentencing, the Court based its crack cocaine relevant conduct finding on one confidential witness' statement that he had seen Reeves with 28 ounces, or 793 grams, of crack cocaine.
Reeves' argument in this respect suffers from the same flaws as his prior argument. Even if his counsel had been deficient for failing to consult him about withdrawing the relevant conduct objections to the PSR, Reeves has not specified what evidence his counsel could have presented or what argument he could have made to discredit the confidential witness' statement supporting the crack cocaine relevant conduct finding. In the absence of such information, Reeves cannot show he suffered prejudice from withdrawal of the objections.
Furthermore, there was other relevant conduct in the PSR that the Court did not consider because it could have potentially amounted to double-counting of the 793-gram amount. For example, other witnesses testified that Reeves bought 255 grams (PSR ¶ 40) and 126 grams (PSR ¶ 42). Thus, if Reeves counsel had somehow convinced the Court to disregard the 793 grams of crack cocaine testified to by the confidential witness, the Court would have been able to rely on other witnesses to establish at least 381 grams of crack cocaine. Combined with the 100 grams of heroin relevant conduct, this would have placed him in the same sentencing category as 793 grams of crack cocaine did - 1, 000 to 3, 000 kilograms of marihuana equivalent. See U.S.S.G. § 2D1.1(c)(4) & app. n. 10 (2010 Supp. eff. Nov. 1, 2010).
Additionally, the Government's response to Reeves' relevant conduct objections demonstrates the very real possibility that it would have asked the Court to refrain from awarding a three-point reduction for acceptance of responsibility pursuant to United States Sentencing Guideline Manual § 3E1.1(a) and (b) had Reeves persisted in his objections. In light of the fact that the PSR provided at least two separate paths to calculate substantial amounts of crack cocaine relevant conduct and that Reeves has pointed to no realistic way for discrediting any of the witnesses paving those paths, it appears likely his objections would have been deemed frivolous and would have cost Reeves his acceptance of responsibility reduction and raised his sentencing guideline range. While counsel should have consulted Reeves and explained this before withdrawing the objections, his decision to withdraw the objections was definitely a reasonable decision and did not cause any prejudice.
For these reasons, counsel was not constitutionally ineffective for withdrawing the objections to relevant conduct, and this decision cannot serve as a basis for § 2255 relief.
E. Failure to Argue the Fair Sentencing Act Applied
Reeves argues that his counsel was constitutionally ineffective for failing to argue on appeal that the FSA applies after specifically preserving it before the Court at the sentencing hearing. To the extent Reeves faults his counsel for failing to file a notice of appeal, the Court addressed that matter in rejecting his first ground for § 2255 relief by finding Reeves did not ask his counsel to appeal.
Furthermore, Reeves suffered no prejudice from his counsel's failure to argue to the District Court that the statutory mandatory minimums of the FSA should apply in his case. The FSA, signed into law on August 3, 2010, changed the threshold amount of crack cocaine necessary to qualify for the ten years to life sentencing range in 21 U.S.C. § 841(b)(1)(A)(iii) from 50 grams to 280 grams. However, at the time of Reeves' sentencing - in fact, just a few weeks before his sentencing - the Court of Appeals for the Seventh Circuit had decided in United States v. Bell, 624 F.3d 803, 814-15 (7th Cir. 2010), that the FSA's higher thresholds were not retroactive. This Court would have likewise, based on the law at the time, declined to apply the FSA's higher thresholds even if Reeves' counsel had asked the Court to do so.
While this result was eventually negated by Dorsey v. United States, 132 S.Ct. 2321 (2012), which held that the FSA was retroactive to cases in the pipeline when it became law, even in light of Dorsey, Reeves suffered no prejudice. His relevant conduct was clearly above 280 grams of crack cocaine and, with his heroin relevant conduct, converted into more than 1, 000 kilograms of marihuana equivalent. This qualified him for a ten-year mandatory minimum sentence regardless of whether the FSA applied, as Judge Murphy found in denying Reeves' motion for a sentence reduction under 18 U.S.C. § 3582(c)(2) (Case No. 09-cr-40069-GPM, Doc. 793).
For these reasons, this argument does not warrant relief under § 2255.
F. Failure to Argue Alleyne Principles
Finally, in his amendment to his § 2255 motion, Reeves claimed his counsel was constitutionally ineffective for failing to argue that a relevant conduct amount triggering a mandatory minimum sentence must be admitted by a defendant or found by a jury beyond a reasonable doubt. In support of this argument, he cites Alleyne v. United States, 133 S.Ct. 2151, 2155 (2013), which held that, except for prior convictions, "any fact that increases the mandatory minimum is an element' that must be submitted to the jury." Alleyne, decided June 17, 2013, overruled Harris v. United States, 536 U.S. 545, 557 (2002), which had earlier held that facts found by a judge could increase the statutory mandatory minimum sentence applicable to a defendant. Alleyne, 133 S.Ct. at 2155. However, when Reeves was sentenced in November 2010, Harris was the law of the land, and an argument based on Alleyne principles was a sure loser. Counsel was not deficient because he failed to make an argument based on a case that had not been decided at the time or because he failed to anticipate a change in the law. See Valenzuela v. United States, 261 F.3d 694, 700 (7th Cir. 2001) (counsel's failure to anticipate Apprendi v. New Jersey, 530 U.S. 466 (2000), was not deficient).
Furthermore, Alleyne does not apply retroactively to cases on collateral review. Alleyne is part of the Apprendi line of cases that clarifies the decision-maker and the standard of proof for facts that determine a defendant's statutory sentencing range. For the same reasons Apprendi does not apply retroactively on collateral review, see Curtis v. United States, 294 F.3d 841, 842-44 (7th Cir.2002), Alleyne does not either. See Wilson v. United States, 414 F.3d 829, 831 (7th Cir. 2005) (noting "decisions in the Apprendi sequence to not apply retroactively on collateral review").
Because Reeves cannot show his counsel was deficient for failing to make an Alleyne -type argument and because Alleyne does not apply retroactively on collateral review, Reeves is not entitled to § 2255 relief on this basis.
III. Conclusion
For the foregoing reasons, the Court DENIES Reeves' § 2255 motion (Docs. 1, 2 & 11) and DIRECTS the Clerk of Court to enter judgment accordingly.
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April 2, 2007
UNITED STATES OF AMERICA, PLAINTIFF,v.RALPH INZUNZA, DEFENDANT.
Defendant Ralph Inzunza moves to have this court certify to the Ninth Circuit its intention to grant his most recently filed motion for new trial. The Government opposes the motion. For the reasons set forth below, the court denies the motion for new trial and therefore declines to certify to the Ninth Circuit that it would entertain the motion for new trial.
On November 10, 2005 the court denied Defendant's motion for a new trial.*fn1 Defendant now claims that newly discovered evidence warrants the grant of a new trial motion. Specifically, Defendant claims that the Government failed to disclose impeaching and exculpatory material relating to Michael Galardi, Nevita Thompson and John D'Intino and to correct Galardi's alleged perjury (or suspected alleged perjury) in violation of its obligations under Brady v. Maryland. Defendant also argues that post-trial statements of co-defendants Malone and Zucchet constitute newly discovered evidence warranting relief under Rule 33. Each argument is discussed in turn.
"The filing of a notice of appeal is an event of jurisdictional significance -- it confers jurisdiction on the court of appeals and divests the district court of its control over those aspects of the case involved in the appeal." Trulis v. Barton, 107 F.3d 685, 694-95 (9th Cir. 1995). " The District Court ha[s] jurisdiction to entertain the motion [for new trial] and either deny the motion on its merits or certify its intention to grant the motion to the Court of Appeals, which c[an] then entertain a motion to remand the case." United States v. Cronic, 466 U.S. 648, 667 n.42 (1984).
Here, as set forth below, the court denies the motion for new trial on the merits. Accordingly, the court declines to issue a certification to the Ninth Circuit for purposes of remanding the case to district court.
The Motion for New Trial
A motion for new trial based on newly discovered evidence must be made within three years after verdict. If an appeal is pending, the district court may deny a motion for new trial but it cannot grant the motion unless the case is remanded by the Court of Appeals. Fed.R.Crim.P. 33(b)(1).
Under Rule 33(a) the court has broad authority to grant a motion for new trial whenever "the interest of justice so requires." Fed.R.Crim.P. 33(a); United States v. Young, 17 F.3d 1201, 1205 (9th Cir. 1994). The court considers the following five-part test to determine whether to grant a new trial based on newly discovered evidence: (1) the evidence must be newly discovered; (2) the failure to discover the evidence sooner must not be the result of a lack of diligence on the defendants part; (3) the evidence must be material to the issues at trial; (4) the evidence must be neither cumulative nor merely impeaching; and (5) the evidence must indicate that a new trial would probably result in acquittal. Untied States v. Sarno, 73 F.3d 1470, 1507 (9th Cir. 1995).
Where the Government knowingly uses perjured testimony, the standard is whether "there is any reasonable likelihood that the false testimony could have affected the jury verdict." United States v. Endicott, 869 F.2d 452, 455 (9th Cir. 1989). In the absence of a showing that the Government knowingly used perjured testimony, "the correct standard for granting a new trial when newly discovered evidence reveals that a Government witness committed perjury during the trial" is that the evidence probably would result in an acquittal. Untied States v. Krasny, 607 F.2d 840, 842 (9th Cir. 1979).
The O'Melveny & Meyers Memoranda: About one year ago, on March 28, 2006, the Government disclosed two memoranda written by an attorney at the law firm of O'Melveny & Meyers ("O & M"), dated June 28, 2003 and August 4, 2003. The memoranda, discovered post-trial by the Government, were drafted by an attorney at O & M and summarized meetings between Galardi and his attorneys.*fn2
Defendant now claims that this newly discovered document shows that the Government failed to comply with its Brady obligations. Defendant identifies about four exculpatory statements contained in, or omitted from, the memoranda: (1) the payments to councilmen were "pure campaign contributions;" (2) Galardi reviewed seized business cards with his counsel; (3) Galardi "cheated on his taxes;" and (4) the memoranda did not mention the $10,000 cash payment to the councilmen.
To the extent Defendant argues that these alleged misstatements or omissions constitute newly discovered evidence warranting a new trial, Defendant falls far short of showing that disclosure of the memoranda would have changed the outcome at trial. Applying the five-part test identified in Sarno, (1) the document is not newly discovered because Defendant has had possession of this document for almost a year; (2) the document could not have been discovered prior to March 23, 2006; (3) the document bears on the credibility of Michael Galardi; (4) the evidence is cumulative, as more fully described below; and (5), in light of the cumulative nature of the evidence, there is no reasonable likelihood that the jury would have returned a different verdict if the evidence had been admitted.
The additional impeachment value of any statement or omission contained in the memoranda is minimal given that the focus of defense counsel at the time of trial consisted of a lengthy and extensive attack on Galardi's credibility. Over the course of several days the jury heard testimony that Galardi characterized the payments as both "bribes" and/or "campaign contributions." (FBI - 302, 5/19/03; FBI - 302, 7/15/03; GX 15; GX 82). Moreover, as acknowledged by the parties, one predominant overriding issue at the time of trial concerned the monies provided to the councilmen. The parties submitted substantial evidence and argument on whether the monies constituted legitimate campaign contributions or, alternatively, quid pro quo payments.
With respect to the issue of AUSA Eric Johnson and Galardi's possession of his business card, the court notes that this topic was the subject of several pre-trial motions and trial testimony wherein Galardi was subjected to cross-examination about AUSA Johnson and his business card. With respect to the statement that Galardi said "he has definitely cheated on his taxes," the court notes that substantial evidence of "tax cheating" was presented at the time of trial. Evidence indicated that Galardi did not report the income from certain cash registers, tip income was under reported, and he structured a $400,000 cash transaction. Finally, the fact that the memoranda did not mention the $10,000 cash given by Galardi for payment to the councilmen, as Galardi later testified to, does not establish that he did, or did not, provide $10,000 to the councilmen. At the time of trial, Galardi was extensively cross-examined regarding this $10,000 payment, including the dubious circumstances under which Galardi "recalled" giving Malone $10,000 cash.*fn3
Further, given the centrality of Galardi's credibility to his testimony, the court notes that the jury was specifically instructed to view the testimony of Galardi and Nevita Thompson with "greater caution than that of other witnesses." 9th Cir. Crim. Jury Instr. 4.9 (2003). In light of the cumulative evidentiary value of the memoranda, Defendant is not entitled to a new trial.
In sum, the newly discovered evidence is cumulative of that which was presented to the jury, so there is no reasonable probability the withheld evidence would have affected the outcome.
Galardi's Alleged Perjury
Defendant argues that Galardi presented perjured testimony when he testified about business cards in his possession. Defendant contends that the memoranda mentions that Galardi reviewed certain business cards with his attorneys but testified at trial to the effect that the FBI did not find any of his business cards. Defendant attributes the difference between the two statements to perjured testimony.
Defendant's argument is not persuasive. Defendant does not satisfy his burden by pointing to inconsistencies in statements and attributing the difference to perjury. With respect to the business card of AUSA Johnson, this was, as noted above, a subject of substantial pretrial motions and examination of Galardi. The court notes that the context provided by Defendant to assess this issue falls far short of establishing that the Government intentionally, recklessly, or negligently submitted perjured testimony to the jury.
In sum, Defendant fails to establish that he is entitled to a new trial based upon Galardi's alleged perjured testimony.
Defendant contends that the Government failed to disclose that a non-testifying potential witness and co-defendant, John D'Intino, made an undisclosed statement during his debriefing that the monies paid to the councilmen were "campaign contributions" in violation of its obligations under Brady. As with the statements and omissions contained in the memoranda, this evidence is substantially cumulative. At trial, the monies given to the councilmen were frequently characterized as "campaign contributions." Moreover, the statement seen in context, is not exculpatory. In his debriefing, D'Intino used the term "campaign contributions" when referring to the monies provided by Galardi to the councilmen. He also stated that the money was used to reimburse straw contributors who wrote individual campaign contributions in order to disguise the true source of the money.
Accordingly, viewed in context, this evidence does not tend to exculpate Defendant.
In sum, Defendant fails to establish that he is entitled to a new trial based upon the statements of D'Intino.
In November 2005, Defendant learned that co-defendant Malone had secretly tape recorded a conversations with Nevita Thomson. Defendant contends that the secretly recorded conversations contain statements undermining her testimony at the time of trial. Defendant also argues that the Government failed to produce in discovery any "reports or notes of the interviews of Thomson" and now requests that the court order such documents to be provided for in camera review. (Motion at p.20:23-24).
The court notes that the recorded conversation does not support Defendant's argument that Galardi and Thompson lied about the $10,000. In the conversation Malone confronts Thompson saying, "Where did the $10,000 come from? Because you know damn well Mike didn't give me 10,000." (Motion Exh. B, p. 17). Thompson responds by saying "I'm not lying about this." She then explains that she saw Galardi with the money and that Galardi told her that it was for the councilmen." Id. This statement, seen in context, fails to impeach her trial testimony that she saw Galardi give Malone an envelope containing what she believed was $10,000.
Further, applying the five part test identified in Sarno, the court concludes that this evidence is not newly discovered as the evidence has been in Defendant's possession for about 16 months, it is unclear whether Defendant ever attempted to interview Thompson prior to trial, the evidence does not impeach Thompson's trial testimony to the effect that Galardi gave Malone $10,000 in cash, and this evidence, either individually or collectively with the other alleged evidentiary failings, would not likely have altered the jury's determinations.
In sum, Defendant fails to establish that he is entitled to a new trial based upon the statements or testimony of Thompson.
Defendant contends that the self-serving declaration filed by co-defendant Malone in support of Inzunza's claims constitutes newly discovered evidence. The Malone declaration generally asserts that Malone did not bribe either Inzunza or Zucchet, and that they never promised him anything in exchange for campaign contributions.
Here, the Malone evidence is not newly discovered. In April 2005 Defendant sought severance on the ground that Malone, as set forth in the declaration, would testify that he did not bribe Defendant. In the declaration, Malone stated that he would testify for the councilmen if he were tried first or if he was given immunity. (Docket Nos. 308, 309). Moreover, the type of post-sentence statement provided by Malone is unreliable, untrustworthy, and of little evidentiary value. The Ninth Circuit has adopted the view that "when a defendant who has chosen not to testify subsequently comes forward to offer testimony exculpating a co-defendant, the evidence is not 'newly discovered.'" United States v. Reyes-Alvarado, 963 F.2d 1184, 1188 (9th Cir. 1992) (quoting United States v. Diggs, 649 F.2d 731, 739 (9th Cir.), cert. denied, 454 U.S. 970 (1981).
In sum, as this evidence is not newly discovered, the court denies the motion for new trial. NEW ZUCCHET EVIDENCE On or about October 15, 2005 co-defendant Zucchet submitted a post-trial self-serving declaration indicating that he first learned about Malone's legislative goal on February 10, 2003. Zucchet declares that Defendant Inzunza never asked him to do anything on behalf of Malone or his legislative goal. (Zucchet Decl. ¶¶3-4). This evidence, Defendant concludes, "impeach[es] and materially undermines the government's unusual quid pro quo theory." (Motion at p.25:5).*fn4
The court concludes that this is not newly discovered evidence. Defendant has known about this evidence for over 17 months yet failed to move for relief earlier or demonstrate reasonable diligence in pursuing this claim. While impeachment evidence is material, the proffered evidence contradicts Zucchet's earlier statements to the FBI. On May 14, 2003 Zucchet informed the FBI that he met Malone at a fundraiser in San Diego. Before the fundraiser Inzuna informed Zucchet that Malone was a lobbyist associated with the nude entertainment industry and that Malone desired to soften the laws regulating what the "girls can and cannot do." (Gov't Exh. 2). In light of the evidentiary record, the proffered evidence does not indicate that Inzunza would reasonably be acquitted.
In sum, the court denies the motion for new trial based upon the individual or collective grounds raised by Defendant and declines to certify to the Ninth Circuit that it would entertain a motion for new trial.
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Just had a discussion with a lawyer in my office on what can go wrong by "cutting legal corners" in China. I frequently have this discussion with clients who want us to take a shortcut (usually one advised by someone who will benefit financially from it) that will allegedly speed things up or cost more. I am not a big fan of such shortcuts because the risks seldom justify the rewards.
The problem with the typical China shortcut is that it involves doing something not completely legally but with assurances that it will work because "someone knows someone" in such and such Chinese government agency and that someone will make sure that it goes through without a hitch. Before I talk about the more mundane ways this sort of "guanxi" can end badly, I will talk about two rather graphic examples where the reliability of such connections ended up being very detrimental:
The more mundane and certainly more common examples of good guanxi causing problems are the following:
China is in the midst of an economic slowdown right now and that means foreigners and foreign companies are less popular than they were. That also means that government officials are looking to diversify their funding sources. Companies that have cut corners are a great source of funding and government officials are going after them with renewed vigor.
So what are we saying here? Are we saying having good connections is a bad thing? No. Are we saying never use your connections to your advantage? No, we are not saying that either. What we are saying is that you should always be mindful of the risks inherent in going sidestepping the law and always beware of how doing so can come back to bite you. Or to put it another way, Guanxi Either Retires or Goes to Jail.
Dan Harris is founder of the Harris & Moure law firm, a boutique international law firm focusing on small and medium sized businesses that operate internationally. China is the fastest growing area for the firm. Dan writes ChinaLawBlog.com as a source of China legal and business information.


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inbound rwy 18R. Canon 10D + EF 70 - 200 mm f/4 L USM @ 100 mm
Sunrise at stand 77
Reminds me of the low flyby Malev did over Budapest.
[Canon EOS 20D]
On final for RWY 14
I love AMS for the variety of visitors. [Canon EOS 10D + 75-300 III USM]


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Tag Archives: Aurora Theatre Company
Aurora's remarkable "Master Harold' … and the boys'
Aurora's new production of "Master Harold" … and the boys is a brilliant evening of theater. Its playwright is South Africa's Athol Fugard, whose internationally respected anti-apartheid works include Blood Knot, Boesman and Lena, and My Children! My Africa! "Master Harold's" cast of three, L. Peter Callender, Andrew Humann and Adrian Roberts, are all superb in their roles. And Timothy Near's discerning direction perfects the production.
The powerful, award-winning "Master Harold," a 90-minute autobiographically-based drama set in one rainy afternoon in 1950, is about Hally (aka Master Harold), a 17-year-old Afrikaner white boy, and Sam and Willy, two middle-aged black servants employed by Hally's family. … Continue reading »
Don't miss 'The Heir Apparent' at the Aurora
I just saw playwright David Ives' witty and wild re-imagining of the early 18th-century French comedy, Le Légaire Universel by Jean-François Regnard. And I'm very glad I did. The super-creative Ives has taken a mild comedy by a Molière wannabe from the Commedia dell'arte school, and created what he calls a transladaptation, which turns the original material into a priceless combination of an 18th-century bawdy French farce and 21st-century clever American comedy — all in creatively rhymed couplets. It takes an ingenious writer to rhyme Kosher and gaucher.
The first-rate cast features California Shakespeare favorite Julian López-Morillas (The Aspern Papers, Nora,) as Geronte, the old, ailing, cantankerous miser (yes, shades of Molière). Geronte's maidservant, Lisette (excellent Katie Rubin), his nephew, Eraste (notable Kenny Toll, Shotgun Players' Eurydice, Antigonick) and his nephew's servant, Crispin (sparkling Patrick Kelly Jones, Metamorphosis, Detroit) can't wait for Geronte to kick the bucket and leave his fortune to Eraste. … Continue reading »
Aurora's 'The How and the Why': Exciting and engrossing
It's a rare treat when an evening at the theatre can engross, educate and entertain, all in one performance.
The How and the Why, written by Sarah Treem (Showtime's The Affair, HBO's In Treatment and Netflix's House of Cards) with two especially talented actors, Nancy Carlin (The Monster-Builder, Hysteria, Benefactors) and Martha Brigham (San Francisco Playhouse, La Jolla Playhouse), under the excellent directorship of Joy Carlin (Talley's Folly, After the Revolution, Body Awareness) is that perfect drama.
The play is sometimes challenging, occasionally humorous, but always a thought-provoking dialogue between two women evolutionary biologists who meet for the first time, but have much in common.
Sparks fly when 28-year-old graduate student Rachel (Martha Brigham) meets the older and eminent professor Zelda (Nancy Carlin) in Zelda's unnamed university office (presumably Harvard, as becomes apparent from the Act II set). Both women are uneasy; there are false starts. As they feel their way into a conversation about evolutionary biology, they are on safer ground. … Continue reading »
Ibsen redux: 'Little Erik' at Berkeley's Aurora Theatre
Little Eyolf, one of Henrik Ibsen's lesser plays, has been updated and up-ended by writer and director Mark Jackson in the Aurora Theatre's world premiere production of Little Erik. In re-writing Ibsen's 1894 plot into a superficially contemporary story about a hard-driving executive wife, a mercurial wannabe novelist husband and a disregarded disabled child, Jackson seems to be on the right track until the latter half of the one-act, 80-minute drama, where all goes awry, as the writing departs spectacularly from Ibsen's original plot and veers into surprisingly shoddy melodrama.
The eponymous Little Erik (talented Jack Wittmayer) was injured as a baby when he fell off a kitchen table while his parents were making love on the floor. Thus begins the guilt, tension and anger that adds pressure to the couple's already strained relationship. … Continue reading »
Architecture and the devil: 'The Monster-Builder' at Aurora
Although The Monster-Builder is at times captivating, I'm still a bit flummoxed by its construction. It's mostly a comedy that interlaces cogent comments about post-modern architecture. However, it awkwardly mixes its moods, alternatively presenting satire, farce and sex-capades with observations on building design, but without creating an integrated theatrical experience.
We all can recognize post-modern architecture by our strong reaction to it. Sometimes we are in awe of the creativity and experimentation shown in a startlingly gorgeous building. Other times, we wonder what the architect and client could have been thinking when we notice an odd-shaped building that doesn't fit its location or purpose. Playwright Amy Freed (Freedomland- 1998 Pulitzer Prize nomination, The Beard of Avon; Still Warm; Restoration Comedy, You, Nero), the daughter of an architect, seems to only express the negative aspects of modern architecture. … Continue reading »
'Mud Blue Sky' shines at Berkeley's Aurora Theatre
Most of us find flying a tedious chore these days, so you can imagine how flight attendants feel. In Marisa Wegrzyn's bittersweet comedy, three female flight attendants reunite at a bland airport hotel near Chicago's O'Hare airport. Rather than the clear blue sky flown by "stewardesses" of the past, their humorous and poignant reminiscences emanate from a Mud Blue Sky.
In a very funny opening silent soliloquy, first-rate Jamie Jones (Gidion's Knot, A Delicate Balance) as Beth, an aging and exhausted flight attendant, slowly takes off her painful shoes and cases her numbingly beige hotel room like a pro. After all, someone could be hiding under the bed. She's seen it all. So she washes her hands several times in the opening few minutes.
While tending to her aching back, her flighty (pun intended) co-worker, single parent Sam (well-acted by Rebecca Dines), enters and tries unsuccessfully to entice Beth to join her and former attendant Angie to go bar-hopping. Unfortunately, divorced Angie (skillful Laura Jane Bailey) has been fired for being overweight; she now tends to her invalid mother near Chicago. And her dog just died, too. Angie is a walking cautionary tale. … Continue reading »
Detroit: Unpredictable, dark comedy shines at the Aurora
The fiery dark comedy, Detroit, written by Lisa D'Amour, richly deserves the Obie Award it won in 2013 for the Best New American Play. When it first opened in Chicago at the Steppenwolf Theatre in 2010, the U.S. was floundering through the sudden and severe recession that turned people's lives inside out. Detroit adroitly captures those angst-filled times and weightier concerns, yet has plenty of humor and satire that lessens the pall. It is also an exploration into the dream or mirage of the American middle class life.
Mary (Amy Resnick (Body Awareness, Collapse) and Ben (Jeff Garrett, QED, Berkeley City Club, Assassins, Shotgun) live in a post-World War II close-in suburb near an unnamed city. Mary is a paralegal, but is more interested in shopping online than doing her work. Ben has been laid off from his job as a bank loan officer, but has big plans to start an online site to help those in debt. And he surfs motivational websites. Perhaps he still has a shot at the American Dream. … Continue reading »
The It List: Five things to do in Berkeley this weekend
UC BOTANICAL GARDEN'S 125TH BIRTHDAY During its 125 years of existence, the University of California Botanical Garden at Berkeley has served as a haven for endangered plants rescued from smugglers, a lab for studying climate change, biomagnetism and hummingbirds' territorial behavior, a seed bank, a classroom for children and an idyllic backdrop for weddings. The Berkeley garden, home to one of the oldest, largest and most diverse collections in the U.S,. kicks off its 125th anniversary celebration on Sunday, June 28, with music (by the Tiny Rock Band and The Banjo Racketeers), a beer garden featuring Trumer, cupcakes (by Kelsey Robinson of The Whole Cake), lemonade, and gelato (by Bar Gelato) at its 34-acre site overlooking San Francisco Bay. Read all about it. … Continue reading »
'Fifth of July' at Aurora Theatre: A play with much to offer
One of the fresh, modern aspects of the 1978 Fifth of July by Pulitzer Prize winner Lanford Wilson (1937–2011) is that it concerns a gay couple whose sexuality is never questioned. Neither is the relationship the subject of angst, derision or other negative reaction — just love and acceptance. Unfortunately, a few other elements of the play seem slightly off, despite the fact that Fifth of July has much to offer.
It's 1977, and we're at the Lebanon, Missouri childhood home of Kenneth Talley, Jr. (Craig Marker) a legless Vietnam veteran, who lives with his partner, botanist Jed Jenkins (Josh Schell). Jed seems content to put down roots there by continuing to improve the English garden he has designed. But Ken is now reluctant to teach at the local high school as he had planned, and is considering selling the house.
Visiting Ken are some longtime friends from his 1960s days in Berkeley, copper conglomerate heiress Gwen Landis (Nanci Zoppi) and her assertive husband, John Landis (John Girot). Gwen dreams of becoming a country singer and is actively promoted by her husband. They are traveling with Gwen's amusing guitar player, Weston Hurley (Harold Pierce). John thinks that the 19-room Talley house would make a fine music studio for Gwen. Or does John have ulterior motives? … Continue reading »
'Talley's Folly' is terrific at Aurora Theatre's Harry Upstage
Those who are fortunate and fast enough to find tickets for Aurora's Theatre's Talley's Folly will enjoy a first-class theatrical experience.
Celebrated author Lanford Wilson (1937–2011) deservedly won the 1980 Pulitzer Prize for Drama for this tender two-person, one-act romantic comedy. It's one of the plays in Wilson's famed trilogy about the wealthy Talley family of Lebanon, Missouri. Aurora will be presenting the two other plays in the trilogy, Wilson's Fifth of July from April 17 through May 17, 2015, and four private staged readings of the less produced Talley & Son in April.
Noted Bay Area veteran actor and director Joy Carlin directs inspired performances by Lauren English, as the unmarriageable 30-year old Sally Talley, and Rolf Saxon, as 40-something Matt Friedman, a Jewish émigré accountant from St. Louis, who shows up on July 4, 1944 at the Talley boathouse (or folly) to propose marriage to Sally. … Continue reading »
Dark but bitingly funny: 'The Lyons' at the Aurora Theatre
In the opening act of The Lyons, Nicky Silver's bitingly funny and undeniably moving play, we are in a hospital room in New York, where Ben Lyon (Will Marchetti) lies terminally ill with cancer, cursing with pain, as his wife Rita (Ellen Ratner, After the Revolution) thumbs through decorating magazines, casually discussing her plans to redecorate their living room after Ben dies. Not your average loving couple merely engaging in bickering banter, Ben and Rita have struggled through 40 years in a difficult marriage burdened by disappointment and regret.
Into the hospital room timidly peeks adult daughter, Lisa (Jessica Bates, After the Revolution) a single mother of two boys, recently separated from her husband. Lisa struggles to cope with her day-to-day life as well as her psychological and alcohol issues. She's clearly uncomfortable and distressed by her parents, seemingly more because her father's condition was kept from her for months, than the fact that he is dying. … Continue reading »
Interview: Jonathan Spector on his Aurora winning play
Ask playwrights about their interest in theater and you will likely travel back in time to a childhood — if not further back to ancestral DNA — leading them to fall in love with words.
Such is the case with Jonathan Spector, who attended four different elementary schools in a family of fluid movers as they followed his professor father's career from Washington, D.C. to Alabama and beyond. Entering each blacktop playground scene as the new kid, Spector analyzed relationships, learned the "language" of novel circumstances, developed an eye for the social color of various classrooms and communities. In non-theater words, he learned to get along.
So it comes as no surprise that FTW, a new play selected by Aurora Theatre Company for the 10th annual Global Age Project (GAP), is all about relationships and characters playing out large, social concerns against a backdrop ripped right out of everyday life.
"I wrote this very quickly; it's very local West Oakland," Spector says in an interview. "It's three women who went to college together and how the shared experience falsely flattened out differences between them. They launch themselves into the world thinking they are the same and find out that is not the case." … Continue reading »
'Breakfast with Mugabe' at Aurora packs a powerful punch
An intimate power struggle between Robert Mugabe, the President of Zimbabwe, and Dr. Andrew Peric, a white Zimbabwean psychiatrist, is the compelling concept of Aurora Theatre's gripping, finely acted drama, Breakfast with Mugabe.
British author Fraser Grace based his riveting play, first produced by the Royal Shakespeare Company in 2005, and then off-Broadway in 2013, on news reports that a white psychiatrist had been called to treat a severely depressed President Mugabe, to cure him of being haunting by the malicious spirit of a rival who died under dubious circumstances. Set right before the 2002 Zimbabwean elections, the tense sessions between the two men illuminate the racial, political, historical and emotional divide between blacks and the white landowners in Zimbabwe and, for that matter, in all of formerly colonial Africa. … Continue reading »


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Discussion in 'iOS Themes and Customization' started by Manic Nimrod, Apr 27, 2008.
Theme is not being made: http://www.ifans.com/forums/showpost.php?p=601849&postcount=65
I'm sorry.
Text needs some work. Its a little bit too flat. Other than that I like them. You should make a theme that mixes the four styles rather than 4 different themes imo.
I like a LOT cant wait to see the theme.
WOW! They look amazing, I like the white ones, cant wait!
You are right. Seems a little to flat. :/
I think the flat looks good.
looks good if done right
How would you place the text?
ok cool.
Thanks guys
i really like it. if u actually make the theme though u should do like red with white writing and blue, green, orange, etc.
I like that idea, i'll think about it
Separate names with a comma.


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Diabetes Health Management Joz-j22 Device
Posted at: Offers to Sell and Export | Posted on: Mon 19 May, 2008 2:46 am |
Diabetes Health Joz Photos Catalog
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Packaging: PCS/CARTON: 4pcs/ctn N.W.: 23kg G.W.: 24kg CARTON DIMENSIONS: 57*40*49cm 0.11CBM
20ft: 260ctns 1040pcs 40ft: 520ctns 2080pcs
1. What is JOZ-J22 Health management device?
JOZ-J22 Health management device combines the theoretical essence of the meridian science of the traditional Chinese medicine, mainly provides pointed professional health management schemes for the applicable population of 30 types of health managements, the sub-health population and health population and assists the users to grasp and maintain their own health successfully and effectively.
2. What is diabetes?
In briefly, diabetes are the result of the insulin secretion absolutely or relative insufficiency, which causes metabolic disorders including sugar, fat, protein, water and electrolyte and so on , presenting the hyperglycemia and diabetes. It is one kind of common sickness whose symptom is metabolism and endocrine disorders vigorous.
Symptom: The polyuria, drinks, the multi-food and becomes emaciated.
3. Health management scheme of diabetes:
1) Aiming at the position of the pancreas, place one piece of adhesion electrode under the
left anterior costal marging and left lumbar region respectively(shown asFigure4-1)
2) Acupoints selection and pairing scheme: fei shu fei shu, pishu wei shu ,shen shu-shen shu, tsu san lisanyin chiao
4. The suggestion for diabetes' prevention:
The above diabetes' health management specific measure is only suitable for the light and medium patients, but it requires insisting on using for a long time. The original medication cannot stop decidedly. During the treatment period, it should control the diet(generally daily capacity for food approximately 150200g ), have much pumpkin, the soybean, the vegetables, the lean meat to supply enough nutrition, avoids certain foods like the rum and other stimulates food pungently. Insist on doing the right amount outdoors sports every day, pay attention to keep the reasonable life work and rest. All of these are very helpful to strengthen the physique and promote health.
Diabetes is a serious disease. Following your diabetes treatment plan takes round-the-clock commitment. But your efforts are worthwhile. Careful diabetes care can reduce your risk of serious even life-threatening complications.
Here are 10 ways to take an active role in diabetes care and enjoy a healthier future.
1. Make a commitment to managing your diabetes.
Members of your diabetes care team doctor, diabetes nurse educator and dietitian, for example will help you learn the basics of diabetes care and offer support and encouragement along the way. But it's up to you to manage your condition. After all, no one has a greater stake in your health than you, so that our Health Management JOZ-J22 launch to the market with great significance and efficiency to the human.
Learn all you can about diabetes. Make healthy eating and physical activity part of your daily routine.
2. Schedule yearly physicals and regular eye exams.
3. Keep your vaccines up-to-date.
4. Take care of your teeth.
Diabetes may leave you prone to gum infections. Brush your teeth at least twice a day, floss your teeth once a day, and schedule dental exams at least twice a year.
5. Pay attention to your feet.
High blood sugar can damage the nerves in your feet and reduce blood flow to your feet. Left untreated, cuts and blisters can become serious infections.
6. Keep your blood pressure and cholesterol under control.
7. Take a daily aspirin.
8. Don't smoke.
9. If you drink alcohol, do so responsibly.
10. If you're stressed, you should take control, set limits. Prioritize your tasks. Learn relaxation techniques. Get plenty of sleep.
Above all, stay positive. Diabetes care is within your control. If you're willing to do your part, diabetes won't stand in the way of an active, healthy life.
Company Contact:
Contact Name: Cherry Liu
Company Name: Guangzhou Genial Technology Co., Ltd.
Tel: +86-20-37236781
Fax: +86-20-37236756
Street Address: 7/f, National
Medical & Health Care Instruments
Ctr., 507 North Guangzhou Ave.,
Guangzhou, China
Member name: Healthmanagement
Member Since: 17 May 2008
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Business focus: Medical Instruments, Health Care Products, Health Care, Health Management, Home Care, Home Healthcare Implements
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The Pamplona Internal White Primed Fire Door is manufactured by Deanta. This stunning Fire Door has a beautiful modern design that will match any styled decor. The brilliant white finish also allows this door to blend seamlessly into any colour scheme, meaning a decor change isn't necessary to accommodate this stunning door.
FREE Super Saver Delivery On ALL Orders Over £800
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50 year old female.
50 year old female.
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Chest x-ray demonstrates a tracheostomy in situ. A nasogastric tube has been inserted and has passed through the trachea and into the peripheral right lower zone.
It was repositioned uneventfully.
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