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October 21, 2010
UNITED STATES OF AMERICA,v.VASILIA BERGER, DEFENDANT
I. Introduction
Pending before the court are motions to dismiss (the "Motions") filed within omnibus pretrial motions (ECF No. 10), and a brief in support (ECF No. 11), by defendant Vasilia Berger (Adefendant@ or ABerger@). The government filed a response. (ECF No. 12.) On August 13, 2010, the court held a hearing with respect to the Motions. At the hearing the parties rested on their oral arguments and submissions to the court. At the end of the hearing, defendant notified the court about six additional decisions for the court"s review in support of her arguments. The government notified the court about four additional decisions for the court"s review.
II. Background
Defendant is charged in a two-count indictment at criminal number 09-308 arising from an alleged scheme involving home mortgage loans. Count I charges defendant with attempt and conspiracy to commit wire fraud, in violation of 18 U.S.C. § 1349. Defendant seeks dismissal of count I of the indictment on the basis that the indictment is deficient because it fails to allege an essential element of the offense, i.e., an overt act. Count II charges defendant with conspiracy to commit money laundering, in violation of 18 U.S.C. §§ 1956 (a)(1)(A)(i), 1956(h). Defendant seeks dismissal of count II of the indictment on the basis that the indictment fails to allege a violation of the money laundering statute, as interpreted by the United States Supreme Court in United States v. Santos, 553 U.S. 507 (2008).
III. Standard of Review
In ruling on a pretrial motion to dismiss an indictment, the court should grant the motion only where the allegations in the indictment are insufficient to sustain a conviction for the offense charged and should not consider the sufficiency of the government"s evidence. United States v. Hedaithy, 392 F.3d 580, 589 (3d Cir. 2004).
IV. Discussion
A. General
""An indictment is generally deemed sufficient if it: (1) contains the elements of the offense intended to be charged, (2) sufficiently apprises the defendant of what he must be prepared to meet, and (3) allows the defendant to show with accuracy to what extent he may plead a former acquittal or conviction in the event of a subsequent prosecution."" United States v. Yusuf, 536 F.3d 178, 184 (3d Cir. 2008) (quoting United States v. Rankin, 870 F2d 109, 112 (3d Cir. 1989)); see United States v. Whited, 311 F.3d 259, 262 (3d Cir. 2002) (An indictment is sufficient when "considered in its entirety, it adequately informs the defendant of the charges against her such that she may prepare a defense and invoke the double jeopardy clause when appropriate."). An indictment fails to state an offense sufficiently if the specific facts alleged in it ""fall beyond the scope of the relevant criminal statute, as a matter of statutory interpretation."" Yusuf, 536 F.3d at 184 (quoting United States v. Panarella, 227 F3d 678, 685 (3d Cir. 2002 ).
The United States Supreme Court addressed the sufficiency of an indictment that relies upon the words of the statute itself, instructing:
It is generally sufficient that an indictment set forth the offense in the words of the statute itself, as long as ""those words of themselves fully, directly, and expressly, without any uncertainty or ambiguity, set forth all the elements necessary to constitute the offence intended to be punished."" United States v. Carll, 105 U.S. 611, 612...(1882). ""Undoubtedly the language of the statute may be used in the general description of an offence, but it must be accompanied with such a statement of the facts and circumstances as will inform the accused of the specific offence, coming under the general description, with which he is charged."" United States v. Hess, 124 U.S. 483, 487... (1888). Hamling v. United States, 418 U.S. 87, 117-18 (1974).
B. Count I - 18 U.S.C. § 1349
Count I of the indictment charges defendant with attempt and conspiracy to commit wire fraud, in violation of 18 U.S.C. § 1349. The statute provides in relevant part:
1349. Attempt and conspiracy
Any person who attempts or conspires to commit any offense under this chapter shall be subject to the same penalties as those prescribed for the offense, the commission of which was the object of the attempt or conspiracy.
18 U.S.C. § 1349.*fn1
Under the caption titled "THE CONSPIRACY AND ITS OBJECTS," the indictment provides:
From in and around August 2002, and continuing thereafter until in and around January 2006, in the Western District of Pennsylvania and elsewhere, the defendant,... knowingly and willfully did conspire,... and agree with other persons known... to commit an offense against the United States, that is, Wire Fraud, in violation of Title 18, United States Code, Section 1343. (Indictment ¶ 2.)
Under the caption titled "MANNER AND MEANS OF THE CONSPIRACY," the indictment provides:
3. It was a part of the conspiracy that the defendant,... submitted loan applications to lenders that, as the defendant,... then well knew, contained material misrepresentations about the borrowers" financial condition.
4. It was further a part of the conspiracy that the defendant,... submitted false documents in connection with the loan applications, including but not limited to, appraisals that inflated the true value of the properties, appraisals that represented that they were prepared by licensed appraisers when they were really prepared by unlicensed appraisers.......
7. It was further a part of the conspiracy that the defendant,... caused wire transfers from the accounts of the lending institutions located outside the Commonwealth of Pennsylvania, to the account of the closing agent located in the Commonwealth of Pennyslvania, in furtherance of the Wire Fraud scheme.
(Indictment ¶¶ 3, 4, 7.)
Defendant argues that the indictment is defective at count I because it fails to charge an essential element of the offense by excluding any reference to an overt act or acts. In support, defendant points to Federal Rule of Criminal Procedure 7(c)(1) ("Rule 7(c)(1)"). Rule 7(c)(1) provides in relevant part:
Rule 7. The Indictment and the Information
(c) Nature and Contents.
(1)In General. The indictment or information must be a plain, concise, and definite written statement of the essential facts constituting the offense charged.... It need not contain a formal introduction or conclusion.... A count may allege that the means by which the defendant committed the offense are unknown or that the defendant committed it by one or more specified means. For each count, the indictment or information must give the official or customary citation of the statute, rule, regulation, or other provision of law that the defendant is alleged to have violated.
FED. R. CRIM. P. 7(c)(1).
Defendant relies upon, among others decisions,*fn2 United States v. Reed, 350 F. App"x 675 (3d Cir. 2009) (unpublished opinion) (stating that a violation of 18 U.S.C. § 1349 requires:
1) two or more persons agreed to commit a crime; 2) the defendant knowingly and voluntarily joined in the conspiracy; and 3) a member of the conspiracy performed an overt act for the purpose of advancing the conspiracy); and United States v. Mitan, Crim. A. No. 08-760, 2009 WL 1651288, at *8 (E.D. Pa. June 11, 2009) (same).
The government argues that the decisions relied upon by defendant do not support the proposition that an overt act is an element of 18 U.S.C. § 1349 because the requirement of an overt act was not the holding in any decision cited by defendant and there was no substantive discussion whether an overt act is an element of 18 U.S.C. § 1349 in any decision cited by defendant. The government contends that the conspiracy statute at issue - 18 U.S.C. § 1349 - does not contain an overt act requirement in the text of the statute, which provides in relevant part:
18 U.S.C. § 1349. In contrast, the government points to the traditional conspiracy statute, 18 U.S.C. § 371, which has the following overt act requirement included in the text of the statute: "one or more persons do any act to effect the object of the conspiracy[.]"
The government relies upon Whitfield v. United States, 543 U.S. 209 (2005), which held that 18 U.S.C. § 1956(h), a money laundering conspiracy statute, did not have an overt act requirement. The government argues that the court should adopt the rationale set forth in Whitfield because the language of the statutes in issue here and in Whitfield are virtually identical, and should apply with equal force to determine that there is no overt act requirement under 18 U.S.C. § 1349. In Whitfield, the Supreme Court made clear that where a conspiracy statute does not include an express overt act requirement, Congress intended to exclude that requirement. Whitfield considered 18 U.S.C. § 1956(h), which provided in relevant part (h) Any person who conspires to commit any offense defined in this section or section 1957 shall be subject to the same penalties as those prescribed for the offense the commission of which was the object of the conspiracy.
18 U.S.C. § 1956(h).
The Court considered its prior decisions in United States v. Shabani, 513 U.S. 10 (1994), Nash v. United States, 229 U.S. 373 (1913), and Singer v. United States, 323 U.S. 338 (1945), to be applicable and recognized that "where Congress had omitted from the relevant conspiracy provision any language expressly requiring an overt act, the Court would not read such a requirement into the statute." Whitfield, 543 U.S. at 213. The Court distinguished the statutes considered in those decisions from the general conspiracy statute, 18 U.S.C. § 371. It noted that the common law did not require an overt act for a conspiracy and that 18 U.S.C. § 371 "supercede[d] the common law rule by expressly including an overt-act requirement." Id. at 214. In reviewing the Congressional intent to determine whether an overt act is an element of 18 U.S.C. § 1956(h), the Supreme Court instructed:
Shabani distilled the governing rule for conspiracy statutes as follows: ""Nash and Singer give Congress a formulary: by choosing a text modeled on § 371, it gets an overt-act requirement; by choosing a text modeled on the Sherman Act, 15 U.S.C. § 1 [which, like 21 U.S.C. § 846 omits any express overt-act requirement], it dispenses with such a requirement."" 513 U.S., at 14, 115 S.Ct. 382 (quoting United States v. Sassi, 966 F.2d 283, 284 (C.A.7 1992)). This rule dictates the outcome in the instant cases as well: Because the text of § 1956(h) does not expressly make the commission of an overt act an element of the conspiracy offense, the Government need not prove an overt act to obtain a conviction.
The government also relies upon United States v. Warshak, No. 1:06-CR-00111, 2008 WL 483339 (S.D. Ohio Feb. 19, 2008) (granting government motion to modify jury instructions to remove the instruction that proof of an overt act is required to establish a conspiracy to commit wire fraud); United States v. Searles, No. 07-CR-0195, 2009 WL 302306, at *3 (N.D. Okla. Feb. 6, 2009) ("criminal conspiracy statutes modeled on the Sherman Act, 15 U.S.C. § 1, rather than 18 U.S. C. § 371, do not require proof of an overt act to obtain a conviction") (citing United States v. Warshak, No. 1:06-CR-00111, 2008 WL 483339, at *1 (S.D. Ohio Feb. 19, 2008)); and United States v. Kerik, 615 F. Supp. 2d 256 (S. D. N.Y. 2009) (analyzing statute of limitations issues on date of last overt act; no discussion whether proof of an overt act is an essential element of the offense of wire fraud).
None of the decisions cited by defendant hold that an overt act is an essential element of the statute. That issue was not central to any decision cited by defendant. The rationale of Whitfield is controlling here because 18 U.S.C. § 1349 contains similar language to that considered in Whitfield by the Supreme Court. Congress did not include an overt act in 18 U.S.C. § 1349 and this court cannot impose that requirement on its own. See Whitfield, 543 U.S. at 213-14.
Defendant"s motion for dismissal of count I is denied because there is no statutory requirement of an overt act in 18 U.S.C. § 1349 and under those circumstances the indictment sufficiently apprised Berger of the charges against her and would enable her to invoke any bar of double jeopardy.
C. Count II
Count II of the indictment charges defendant with conspiracy to commit money laundering, in violation of 18 U.S.C. § 1956(a)(1)(A)(i). The statute provides in relevant part:
1956. Laundering of monetary instruments (a)(1) Whoever, knowing that the property involved in a financial transaction represents the proceeds of some form of unlawful activity, conducts or attempts to conduct such a financial transaction which in fact involves the proceeds of specified unlawful activity--
(A)(i) with the intent to promote the carrying on of specified unlawful activity; or
(B) knowing that the transaction is designed in whole or in part--
(i)to conceal or disguise the nature, the location, the source, the ownership, or the control of the proceeds of specified unlawful activity; or
shall be sentenced to a fine of not more than $500,000 or twice the value of the property involved in the transaction, whichever is greater, or imprisonment for not more than twenty years, or both....
18 U.S.C. § 1956(a)(1)(A)(i), (B)(i) (emphasis added).
9. From in and around November 2003, and continuing thereafter until in and around November 2005, in the Western District of Pennsylvania and elsewhere, the defendant,... knowingly and willfully did conspire,... and agree with other persons known to the United States Attorney, to commit an offense against the United States, that is: Money Laundering, in violation of Title 18, United States Code, Section 1956 (a)(1)(A)(i). (Indictment ¶ 9.)
10. It was a part of the conspiracy that, in connection with the Wire Fraud scheme set forth in Count One of this Indictment, the defendant,... and other members of the conspiracy, obtained proceeds related to that scheme.
11. It was further a part of the conspiracy that, in order to further the Wire Fraud scheme, the defendant,... used the proceeds from the Wire Fraud scheme to further promote the scheme by engaging in financial transactions, including but not limited to the following:
(a) Providing the illegally obtained proceeds to purchasers of real estate, said funds then being falsely represented to the lenders as the purchasers" own funds that they were using for down payments;
(b) Using the illegally obtained proceeds to pay other members of the conspiracy, including the borrowers, and an individual known... as KC,...;
(c) Depositing proceeds into borrowers" accounts to make it falsely appear as though they had sufficient funds to qualify for the loan and make a down payment; and
(d) Causing borrowers to endorse the checks that had been provided to them at closings to defendant,...to companies associated with the conspiracy, and to other individuals.
All in violation of Title 18, United States Code, Section 1956(h).
(Indictment ¶¶ 10-11(a)-(d).)
Defendant argues that the indictment is defective at count II because it fails to establish a violation of the money laundering statute as interpreted by the United States Supreme Court in United States v. Santos, 553 U.S. 507 (2008). In Santos, the defendant was charged with money laundering pursuant to 18 U.S.C. § 1956(a)(1) arising from the operation of an illegal lottery. Based upon the rule of lenity, a plurality of the Court held that, at least in the context of an illegal lottery scheme, the statutory term "proceeds" means "profits" as opposed to "receipts." Id. at 524. Defendant contends that because the government made no attempt to distinguish profits from receipts, the indictment is fatally flawed.
In support, defendant submitted several decisions to the court at the hearing on the motion, including United States v. Buske, No. 09-CR-0065, 2010 WL 3023366, at **1-2 (E.D. Wis. Apr. 30, 2010). The defendant in Buske moved to dismiss the indictment on the basis that it failed to state an offense because it did not adequately allege that the defendant conspired to launder the net proceeds of the specified unlawful activity alleged in the indictment. The court denied the motion as moot because the government also moved to dismiss the counts related to conspiracy to commit money laundering. The court"s discussion on the matter was limited to these procedural issues.
Defendant also relies upon United States v. Van Alstyne, 584 F.3d 803 (9th Cir. 2009). In Van Alstyne, the court of appeals, in the context of an appeal of the defendant"s conviction for money laundering, considered whether the sentence imposed by the district court - following a limited remand - should be reversed pursuant to Santos. Id. at 809-10. The defendant"s appeal was based upon insufficient evidence grounds, and maintained that, given Santos, he could not be convicted of money laundering. Id. at 813. The court of appeals held that the defendant"s issuance of distribution checks to individual investors in a Ponzi scheme involving oil and gas limited partnership, and representing supposed generous returns on their investment, did not involve "proceeds" of unlawful activity within the meaning of the money laundering statute in effect at the time of the distributions. Id. at 815. The court reached that conclusion because the distributions were a central component of defendant"s scheme to defraud his investors by inspiring them to send more money to defendant"s funds, which could then be used to pay returns to other investors. Id. The court discussed that treating the distributions as unlawful proceeds would give rise to an impermissible merger of the money laundering statute and the predicate offense of mail fraud.*fn3 Id.
The government argues that the import of the Santos decision is limited to defining the term "proceeds" used in the money laundering statute. The government contends that the indictment is sufficient in this case, even under Santos, because the indictment tracks the statutory language, including use of the word "proceeds," and lists all the essential elements of the offense. The government argues that this issue goes to the government"s evidence, which the court is not to consider in ruling on a pretrial motion to dismiss an indictment. In support the government relies upon United States v. Pope, No. 08-49, 2008 U.S. Dist. LEXIS 101395 (W.D. Pa. Dec. 23, 2008) (denying pretrial motion to dismiss indictment challenging sufficiency of money laundering charge predicated on Santos analysis); and United States v. DeLaurentis, 230 F.3d 659, 660 (3d Cir. 2000)(vacating district court"s dismissal of counts in the indictment because the court"s conclusion that the government"s evidence did not show a nexus between the alleged offense and any federal interest was a only a prediction as to what trial evidence would be).
The district court in Pope noted that it did not need to decide whether "profits" was an essential element of the money laundering charges based upon a finding that the scope of the "Santos decision is far from clear." Pope, 2008 U.S.Dist. LEXIS 103195, at *4 n.2 (citing United States v. Fleming, 287 F. App"x 150 (3d Cir. 2008) (unpublished) (observing that five of the justices in Santos, agreed that "the term "proceeds" includes gross revenues from the sale of contraband and the operation of organized crime syndicates involving such sales"; and concluding that "gross revenues," as opposed to "profits," may be sufficient to establish a money laundering charge in some circumstances). In Pope the district court noted that the government averred that it could and would prove that the money involved in the transactions referred to in the indictment constituted profits. The court reasoned that the defendant would have ample opportunity to challenge the sufficiency of the government's evidence at trial.
Here, the government maintains that the court must accept as true all facts properly pled in the indictment and may grant a motion to dismiss only where the allegations in the indictment are insufficient to sustain a conviction for the offense with which the defendant is charged. In support, the government relies upon, among other decisions, Hamling v. United States, 418 U.S. 87, 117, (1974); United States v. Vitillo, 490 F.3d 314, 321 (3d Cir. 2007); United States v. Whited, 311 F.3d 259, 262 (3d Cir. 2002); and United States v. Cheatham, 500 F.Supp.2d 528, 530 (W.D. Pa. 2007). The government notes that its evidence will establish the money involved in the transactions referred to in count II of the indictment were profits.
As a threshold matter, Santos was decided in the context of post-trial motions where the Court was examining the sufficiency of the government"s evidence. Given the variant outcomes of decisions in which courts considered Santos in a variety of contexts, it is clear that Santos has not provided the lower courts with direction beyond the narrow holding in that case related to gambling proceeds. In United States v. Richardson, Crim. A. No. 05-440-18, 2010 WL 3431704, at *8 (E.D. Pa. Aug. 30, 2010), the district court noted:
Santos may well be a case in which no common denominator exists beyond agreement on the result. Indeed, finding the narrowest ground for the judgment in Santos has perplexed many lower courts. The confusion engendered by the decision has led to at least three approaches to determining the stare decisis effect of the opinion: one narrow, one somewhat broader, and one clearly stating that Justice Stevens's concurrence is controlling. Courts adopting the narrow reading of Santos have determined that the case constitutes binding precedent only in the context of promotion money laundering arising from the operation of illegal lotteries.
Id. (footnotes omitted).
The court is persuaded by the reasoning in Pope. The indictment is sufficient at count II as it sets forth the offense in the words of the statute itself and is accompanied by statements of facts and circumstances that informs Berger of the specific offense with which she is charged. See United States v. Hess, 124 U.S. 483, 487 (1888). This issue raised appears more directed to what evidence the government must prove at trial. The government gave notice in its response to the motion to dismiss this count that it intends to prove profits were involved in the transactions reflected in count II.
IV. Conclusion
Count I of the indictment is sufficient because, considered in its entirety, it adequately informs Berger about the attempt and conspiracy to commit mail fraud charges against her such that she may prepare a defense and, if necessary, invoke the double jeopardy clause. Berger"s motion with respect to count I will be denied.
Count II of the indictment is sufficient because, considered in its entirety, it adequately informs Berger about the conspiracy to commit money laundering charges against her such that she may prepare a defense and, if necessary, invoke the double jeopardy clause. Berger"s motion with respect to count II will be denied.
AND NOW this 21st day of October 2010, it is hereby
ORDERED that the Motions to dismiss counts I and II of the indictment are DENIED.
JOY FLOWERS CONTI United States District Judge
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July, 2010
Goa's abundant reserves of iron-ore drive the mining industry in the state. It is also an established base for the pharmaceuticals industry and an emerging destination for knowledge-based industries such as biotechnology and information technology (IT). Tourism is another key revenue generator because of the inflow of international tourists and a key foreign exchange earnings (FEE) sector for the state. The state receives almost 2.4 million tourists every year and the numbers have been rising steadily.
Goa has emerged as a manufacturing base for several leading companies in areas such as fertilisers, tyres and tubes, cement, electrical machinery, fish-net making machines, automatic washing machines, printed circuit boards, pharmaceuticals and pharmaceutical machinery. The state is home to more than 400 units that manufacture pharmaceutical products. In addition, the state exports over 60 per cent of country's iron-ore (45.9 million tonnes in 2008).
The state is targetting 12 per cent annual economic growth during the Eleventh Five-Year Plan period (2007-12). The state supports one of the highest per capita incomes in the country. At current prices, the Gross State Domestic Product (GSDP) of Goa was about US$ 4.3 billion in 2007-08. In the same period, the tertiary sector contributed the most to the GSDP, amounting to 56 per cent (US$ 2.4 billion). It was followed by the secondary sector, contributing 32.2 per cent (US$ 1.4 billion), and the primary sector contributing 11.9 per cent (US$ 0.5 billion).
The state offers a wide range of fiscal and policy incentives for businesses under the Industrial Policy, 2003. Additionally, the state provides incentives under specific policies for the biotechnology and IT sectors.State Presentation (April 2010)
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Corporate Overview
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Hughes Network Systems is providing its high-throughput, Ka-band Jupiter System for a major technology upgrade on Malaysian satellite communications services provider TS Global Network's (TSGN) existing C-band satellite network.
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ED-1405 - Edelbrock Performer Series Carb, 600 cfm, Square-Flange, Manual Choke, Non-EGR, Satin Finish
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text:
- This is our last week to have Taylor at home. We knew this day would come. He leaves for AIM on Saturday. Lea and I feel just like Taylor does, we're excited but nervous. He's going to do great. I'll tell you more about it later this week.
- Hopefully you've figured out by now that I like to tease Lea about buying shoes and shopping. Lea is my sweetie and honestly, she doesn't spend a lot on shoes or clothes. I'm a blessed man that she's pretty content with her life with me. But I do need to tell you that there is a chance that we're going to be in Vegas next March and I am hoping I can talk her in to the Elvis in the white wedding chapel thing.
- I've been struggling with my faith lately. Not in a bad way, but in a radical way. I want to be more than just a believer in Jesus, I'm actually called to be a disciple of Jesus. I don't just want to study his life, I want to live his life. I want my faith to be a risk taking faith. I'm praying about this. Anything you're praying about in your faith right now?
- I know you've probably seen this. It's called Cardboard Testimony. (If you haven't watched it, do it now.) I've been thinking, "What would my card board testimony be?" What would I put on mine? I'll show you in a few days? So, what would you put on yours?
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We had a "cardboard testimonies" service at Downtown last Sunday and it was very powerful. I did not have the courage to stand before the group. Actually, our cardboard is blank. Jesus has washed our slate clean.
wow, the cardboard thingy was powerful, thanks for that.
There is no doubt that we are on the same page on this one. I certainly get it.
I saw the cardboard testimony several months ago I guess and it was very moving.
Mine would say,
"Blind leader of the blind."
"God opened my eyes! (2 Kings 6:17)"
Having grown up in a very legalistic religious environment, mine would possibly read:
Recovering Pharisee
A friend told me about your blog months ago, I read it every day. Some days I laugh, one day I was reminded to tell my husband thank you for being a "doting man", have found resources to strengthen my marriage that feels as if it is barely held together by a string at times, BUT TODAY…..I sit here in tears after watching the cardboard confessions….. God answers my prayers in ways I would never have imagined.
My cardboard confession would be:
Lost Husband to Suicide in 2003. Became Hardened and Full of Anger.
Gave It To God, He Soothed My Pain and Washed Away My Guilt.
Thank you Trey! I needed today's blog.
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I am hoping our church will do the cardboard testimonies. I am feelin' the same way about my faith…especially after reading the "Jesus I Never Knew" book. I have always loved Jesus for what He did, but now I love Him for who He was/Is- His personality. Thanks for the uplifting comment you left on my blog last week- it made my day that you even read my blog!
"I want my faith to be a risk-taking faith." Amen!
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I'm still thinking on my cardboard.
Loved the comments. Smiled all the way through them.
Faked my Faith for Years
Met God on a Mountain. Never the same since.
I think my cardboard testimony would be something like
Apathetic cultural Christian
Redeemed by His blood
Hey bro, I'm excited for your son coming here. He'll love it, but I know changes are always hard.
I think about what it means to be a follower of Jesus every day. For the last year or two I've simplified my faith a lot. I've focused a lot on trying to genuinely love God and love people. I've tried to truly make my identity in the cross, not my accomplishments, my image of myself, or what others think. And I've tried to commit myself to the beatitudes in study and practice, though I fail very often.
I'm praying about my future. I'm not sure what I'll be doing after Sunset. I tend to be a planner, so I'm trying to distinguish between being responsible and truly leaning on God's guidance. This summer really woke me up to the urgency in this world for people who will give their lives to leading others to Christ. It's really made me pensive and maybe even a little down. But I'm not sure that's a bad thing.
My cardboard testimony:
Pothead wasting his life –
Passionately forgiven and leading others to Jesus
Anyway, sorry for the letter. Thanks for your encouraging posts. Keep them up.
I am very glad for you and your son going to AIM. Marlana and I were in the class of 95, it was the faith shifting decision in my life that has let us to where we are now, God is awesome.
On the radical thinking, Im there, reading irresistible Revolution now, faith shifting it is indeed.
Not sure what to do with it, but it's talking straight to me!
Cardboard Testimony: I had it all figured out…I let God in an I m back to step one: Trust
Stoogelover – loved it.
Anonymous – my heart hurts for you and your loss of your husband. I immediately prayed for you. I'm thankful you're finding something helpful in this blog. Please hang in there.
Joshua – thanks for your words. You're never too long winded. I loved our time together this past Sunday too. Thanks for dropping by. I'm looking forward to watching Taylor's spiritual growth. Thanks for your ministry.
MY CARDBOARD TESTIMONY? I thought of so many, but here's the one I'm going with:
Believed that God's grace was limited to a few who had their act together.
Realized that it's God's grace and He can give it to anybody He wants.
You and your family will be in my thoughts and prayers as your son begins this new journey in his life. I know God will be with him and he will have an incredible spiritual experience at AIM. Praise God for your sons devotion and willingness to learn and change lives over the next several years. What a blessed time this will be in his life. He will be making friends that will last a lifetime. He will learn the bible, and grow in his faith and relationship with God. God is doing great things with AIM and the Sunset School of Preaching. I he will enjoy Lubbock. Lots' of cool and fun things to do. Countless churches in and around Lubbock that are opportunities to serve, minister and do the will that God has called.
I'm praying about several things in my faith right now…will get back to you on those!
Wish I could see the Cardboard Testimony–it's blocked from our school computers…maybe I can see it on another computer soon!
Taylor is so awesome!!!! Can't wait to hear about all he is doing in AIM!! You and Lea have done such a great job with him and your other boys!!! You two have been (and continue to be) such great role models for me!!! Thanks!!!
I'm praying the God will clearly show us His purpose for our church. Our community has so many churches yet there are needs everywhere that are not being met. People who don't claim Christianity at all are better at being God's hands and feet that the church is. It's shameful, really.
As for my cardboard testimony:
Despised my outward appearance.
Made beautiful from the inside out.
Nice one! Thanks for the charge. Mine would read: "Hopeless life lived — Living Hope Filled Life!"


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Christian/Patriot/Libertarian-Socialist and I support: AFL-CIO & IWW & ACLU & Occupy & Declaration Of Independence & Constitution #union #iww #WIUnion #occupy
946 days ago
#union #iww #occupy #ows #p2 #p21 #tlot #tcot #teaparty
10 Lessons Every Government Official Should Learn Before Considering Privatization
Privatization of services has long been a favorite "solution" of right-wing extremists looking to profit off of taxpayer funds. In attempts to sell the government service provision to private companies, many promises are made about the cost-effectiveness and superior quality product that can be offered by the private sector. But most of those promised benefits fail to materialize. Here are 10 lessons that government officials should learn before considering the privatization of services based on the experience of Chicago's privatized parking meters (and other examples), as outlined in a recent Atlantic article...
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|Property type
|Minimum Stay
|7 nights
With a sandy beach 100 m away, the location of this detached holiday home is a little paradise. It's equipped with all conviences and on top of that it's great to be able to walk to the sea in just a few minutes. With the bakery, the grocery store and restaurants only 500 m away, you can leave the car in the garage for a day.
Hike from home into the nature park 'Parc Naturel des Marais du Cotentin et du Bessin'. During the winter the north to the south beach of Normandy is a mace of islands surrounded by water, during the summer this is the home of many special water birds. St. Mère-Eglise, where at D-day, American paratroopers landed, is 47 km away; if you drive about 10 km further, you arrive at Utab Beach, where American soldiers invaded France on June 6th 1944 (several museums in the area).
During hikes, we recommend choosing the winding roads full of surprises, they lead you towards the little villages, swamps, forests and meadows that are so typical for this part of Normandy. Tennis court in St.Germain-sur-Ay (3 km), 18-holes golf course in Marchésieux (27 km) and the swimming pool in beautiful Coutances (22 km).
Classification: Ground floor: (Kitchen(microwave, dishwasher, fridge freezer, washing machine), Living/diningroom(TV), bathroom(shower), WC)
On 1st floor: (bedroom(Double bed), bedroom(3x Single bed))
garden(fenced), BBQ
These costs are charged on site. They are not included in the rental price.:
Deposit; € 400
Cleaning; Own responsibility
Pets; Not allowed
Bed linen; Included
Bath towels; Bring your own
Kitchen linen; Bring your own
Electricity; 8KWh per night included. More consumption at local rates
Heating/Energy; Oct - Dec: € 12,86/night; Jan - Mar: € 12,86/night; Apr - Sep: Included
Gas/Oil; At local rates
Wifi; Not available
Tennis court 2.0 km., Golf course 20.0 km., General supplies 0.5 km., Public swimming pool 22.0 km.
*Plus compulsory or optional charges based on actual occupancy or consumption. The payment has to be made in the currency offered by the property manager, before use of conversion tool. Payments in other currencies have to be negotiated beforehand with the property manager. The currency conversion tool is provided for your convenience only and is non-binding.


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91B The Promenade Mount Pleasant WA 6153
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SECOND CHANCE TO SECURE THIS RESIDENCE - DISAPPOINTED BUYER91B The Promenade, Mount Pleasant
For further information please contact Pauline Couanis 0419 943 266
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Found Any Cool Sewing Blogs? Check it out
7 Posts Sign in to add a post
Jul 4, 2011, 04.38 PMby WhisperingPinesI also need ideas for good posts. Any ideas?
Jul 6, 2011, 11.07 PMby WhisperingPines
The first episode is now added! :D
Jul 7, 2011, 09.03 AMby ichigogirl
Hey, you know, you can't post other people's patterns on your blog without their permission and without giving them credit for it. Big no-no. Linking to them in the original location is perfectly ok. Please correct it.
1 Reply
Jul 7, 2011, 05.00 PMby WhisperingPines
Thanks so much for noticing that! I am new to the whole scene, and didn't even think about it. I have accredited both patterns to their original designer and provided a link to the website. Thanks again! All matters are resolved :)
Jul 7, 2011, 07.53 PMby ichigogirl
Ok, great! Much better. I think you shuldn't upload them through your website (not sure if you removed the patterns and left links to the original location instead) at all, even with credits and link. It isn't easy to know all rules as a beginner! I think there's quite a lot posted here in the forum about copyright etc, have a look around. Good luck with your blog, sharing links to free patterns is a great help to other people!
1 Reply
Jul 7, 2011, 08.17 PMby WhisperingPines
Thanks so much for the help:)
Jul 12, 2011, 02.03 AMby notdeadredhead
It's mostly just crafty stuff in general, but I'm addicted to "I am Momma Hear Me Roar". She has some totally awesome ideas that I've had fun trying out, and others that I just need to find the time for! :^D
1 Reply
Jul 12, 2011, 05.05 PMby WhisperingPines
Cool! I'll check it out right away!
Dec 19, 2015, 01.36 PMby moore123
Oww that's an awesome blog hahahahahaha ha
Jan 8, 2016, 01.55 PMby Emilka Danielczyk
I've been looking around the web for any good sewing blogs, with no luck. Does anyone have any sewing / crafting blogs they like? Thanks,
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nice for sharing….
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JxRadical's 10hr Live Stream#3
Dec 17 @ 4:00pm - Dec 18 @ 2:00am
Event Description
This is one of three 10 hour live streams I have planned before the end of the year. I have always worked in community outreach (within/outside of my Masters). This is my way of helping within my means. Any amount is rad.


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THIS IS A DIRECTORY PAGE. Britannica does not currently have an article on this topic.
Alternative Title: "Les Valseuses"
Learn about this topic in these articles:
...in the short film Le Beatnik et le minet (1965) and began to appear as a bit player in full-length films in the early 1970s. His performance as a young thug in Les Valseuses (1973; Going Places) brought him his first real notice, and he subsequently appeared in such major films as Bernardo Bertolucci's 1900 (1976), François Truffaut's Le Dernier...


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December 16, 1997
COMMONWEALTH OF PENNSYLVANIA, APPELLEEv.DANIEL DAVIS, APPELLANT
Appeal from the Judgment of Sentence November 15, 1996, In the Court of the Court of Common Pleas of Lackawanna County, Criminal Division at No. 94-CR-1375 94-CR-1880. Before O'MALLEY, J.
Before: McEWEN, P.j., Beck, J. and Cercone, P.j.e. Opinion BY Beck, J.
Filed December 16, 1997
In this appeal we decide, inter alia, whether the sentencing court erred in imposing separate sentences for the convictions of conspiracy to commit robbery and conspiracy to commit third-degree murder. We find that pursuant to 18 Pa.C.S.A. § 903 (c) the sentences should merge and the court erred in imposing separate sentences. We therefore remand for resentencing.
Before addressing the sentencing question we decide whether the trial court erred in precluding appellant from presenting certain witness testimony and whether appellant was prejudiced by admission of a pre-trial identification.
Appellant was found guilty of third-degree murder and related offenses. Armed with a baseball bat, appellant and several of his friends sought out the victim with the intention of collecting a drug debt. Following a brutal attack by appellant and the others, the victim died. Appellant was the only person to face trial; his cohorts pled guilty to third-degree murder. A jury found appellant guilty of third-degree murder, conspiracy to commit third degree murder and conspiracy to commit robbery. He received separate, consecutive sentences for each charge, resulting in an aggregate prison term of fourteen (14) to forty (40) years.
Appellant claims that he was precluded from presenting the testimony of two witnesses who would have testified in his favor. Appellant asserts that his effort to offer the witnesses was deliberately undermined by the prosecutor, who threatened the witnesses with perjury charges in the event they took the stand. As a direct result of the threats, appellant claims, the witnesses exercised their Fifth Amendment right not to testify. Appellant characterizes this incident as a violation of his due process rights, specifically his right to compulsory process for obtaining witnesses in his favor. See Commonwealth v. Holloman, 424 Pa. Super. 73, 621 A.2d 1046, 1053-54 (1993).
Two of appellant's partners in crime, Tracy Parks and Dennis Stokes, were sought by appellant to testify in his defense at trial. At the time of trial, both men had pled guilty to third-degree murder for their part in the victim's death. Parks had given a statement to law enforcement personnel at the time he was arrested and both men had appeared before the court for guilty plea colloquies. Appellant wanted the men to testify about their statements to police and the court since, in appellant's opinion, those statements would be favorable to him at trial.
The court held an extensive in-camera hearing on the issue of the prosecutor's alleged threat and its impact on Parks and Stokes. After a thorough analysis of the claims made by appellant, the allegations against the prosecutor and the position of the two witnesses (both of whom testified before the Judge), the court concluded that the witnesses were entitled to invoke their Fifth Amendment rights. The court further found that the invocation of those rights could not be attributed to any alleged or perceived threats by the prosecutor. The court concluded that the testimony of Stokes and Parks would not have been beneficial to appellant, that the reason the two men refused to testify was not based solely on their fear of perjury charges, but on their involvement with other, uncharged criminal conduct not related to the death of the victim, and that appellant had failed to meet his burden in establishing prejudice as a result of the court's ruling. In its opinion, the court explained:
An examination of the testimony leads us to believe that neither Stokes nor Parks was prepared, or in a position, to testify on the [appellant's] behalf anyway. . . . In light of the disinclination of both these witnesses to testify for the [appellant] and also their legitimate reasons for invoking the Fifth Amendment, we are convinced that Mr. Minora's [the prosecutor's] comment was not the reason why Parks and Stokes ultimately chose not to testify. Viewing the episode as a whole we cannot say that Parks and Stokes were precluded from making a free and voluntary choice whether or not to testify. . . .
defendant must establish more than the mere absence of testimony. There must be a plausible showing that an act by the government caused the loss or erosion of testimony that was both material and favorable to the defense. Therefore, in order to prevail on such a due process claim, an accused must, at a minimum, demonstrate some plausible nexus between the challenged government conduct and the absence of certain testimony. . . . No such nexus has been demonstrated here.
Trial Court Opinion at 7-10 (citation omitted).
The court applied the proper standard in assessing appellant's claim. See Holloman, supra (defendant must establish that precluded testimony was material and favorable). Upon review of the applicable case law and the lengthy transcript wherein the court addressed this issue, we find no error in the court's Conclusions and so reject appellant's claim.
Appellant's next claim concerns the testimony of a prosecution eyewitness, Amy Watkins. During cross-examination by appellant's attorney, Watkins testified that she had identified appellant and other individuals in a photographic array she observed pre-trial. Neither appellant nor his counsel was aware of the identification until Watkins revealed it on the stand. Appellant claims that the identification violated his rights for several reasons, including that it was not revealed by the prosecution before trial, that he was not given an opportunity to challenge it and that although he was under arrest at the time, his attorney was not present when the identification was made.
The trial Judge held a full in-camera hearing on the Watkins identification issue. With respect to appellant's claim that the prosecution violated Pa.R.Crim.P. 305B, *fn1 the court found that the assistant district attorney had no prior knowledge of the identification since the incident occurred when "Watkins, while being interviewed by a police officer, noticed a packet of photos and informally picked the subjects out from the group." Trial Court Opinion at 11. Further, the court found that appellant's claims did not entitle him to relief since the identification by Watkins was merely cumulative of that by several other witnesses who testified to seeing appellant at the crime scene with the bat in his hands.
In addition to the observations of the trial court set out above, we note that appellant never raised identity as an issue at trial. Indeed, appellant conceded his presence at the scene of the crime and also admitted to wielding the bat. Appellant denied deliberately delivering the fatal blows to the victim's head and instead insisted his acts were justified after the victim pulled a knife. Appellant claimed that he was only attempting to disarm the victim. Watkins' identification of appellant as one of the perpetrators simply was not prejudicial to appellant's defense.
Considering the evidence presented at trial, including appellant's own version of events, there was no error in the court's denial of a new trial based on Watkins' pre-trial identification. We agree with the trial court that it worked no prejudice on appellant and does not warrant a reversal under the facts.
Appellant's final claim is that his two conspiracy convictions should have merged at sentencing. He makes alternative arguments to support his claim. He first relies on 18 Pa. C.S.A. § 906, which provides that a "person may not be convicted of more than one of the inchoate crimes of criminal attempt, criminal solicitation or criminal conspiracy for conduct designed to commit or culminate in the commission of the same crime." Upon review, we conclude that these facts do not present a § 906 scenario.
Section 906 was designed to prevent multiple inchoate charges that carry with them the same criminal intent. As a result, § 906 does not allow a defendant to be sentenced for both conspiracy to commit a specific crime and attempt to commit that same crime. See Commonwealth v. Brown, 336 Pa. Super. 628, 486 A.2d 441 (1984) (appellant's sentences for attempted burglary and conspiracy to commit burglary merge under § 906). Here, the crimes for which appellant was convicted, and the criminal intent related thereto, were different.
In Commonwealth v. Graves, 510 Pa. 423, 508 A.2d 1198 (1986), our supreme court found that the appellant's convictions for conspiracy to assault three police officers and solicitation to murder one of the officers were each directed at a different end and, therefore, were not subject to § 906 limitations. The Graves court held that § 906 "provides that inchoate crimes merge only when directed to the commission of the same crime, not merely because they arise out of the same incident." Id. Hence, § 906 does not apply in this case.
Appellant's other basis for challenging his conspiracy sentences is a compelling one. The conspiracy statute provides that "if a person conspires to commit a number of crimes, he is guilty of only one conspiracy so long as such multiple crimes are the object of the same agreement or continuous conspiratorial relationship." 18 Pa.C.S.A. § 903(c). Appellant insists that he and his cohorts entered into only one agreement, that is, to use force on the victim in an effort to get money from him. That agreement to use force resulted in the death of the victim, which in turn formed the basis of the substantive charge of third degree murder. However, appellant argues, the evidence does not support the Conclusion that there were two separate agreements. As a result, appellant cannot be punished twice.
The Commonwealth insists that there were two separate agreements: one made at the time the suspects went in search of the victim with a baseball bat and another made during the beating of the victim. According to the Commonwealth, the group's search for the victim, coupled with its purpose, established the agreement to commit robbery. Once the victim was discovered, a fight broke out. The subsequent conduct of the suspects, i.e., assisting one another as they beat the victim about the head with a baseball bat, established a second agreement with a different purpose, that is, a conspiracy to commit third-degree murder.
In determining whether a single or multiple conspiracy has been established, we consider several relevant factors.
The factors most commonly considered in a totality of the circumstances analysis of the single vs. multiple conspiracies issue . . . are: the number of overt acts in common; the overlap of personnel; the time period during which the alleged acts took place; the similarity in methods of operation; the locations in which the alleged acts took place; the extent to which the purported conspiracies share a common objective; and, the degree to which interdependence is needed for the overall operation to succeed.
Commonwealth v. Savage, 388 Pa. Super. 561, 566 A.2d 272, 278 (1989). Applying these factors to the facts of this case, we conclude that the conduct of appellant and his friends was not two separate conspiracies, but was instead the object of a " continuous conspiratorial relationship." 18 Pa.C.S.A. § 903(c) (emphasis added).
The agreement among the participants in this case to use a baseball bat on their victim encompassed both their plan to harm him while taking his money (robbery) and their plan to harm him with such disregard to the value of human life as to constitute malice, which resulted in death (third-degree murder). The same acts were done to accomplish both results, the same actors took part, the acts occurred simultaneously at the same location, the same method was employed and the same objective was pursued. We find that these facts constitute the very circumstances envisioned by § 903(c). The "essential feature of the existing conspiracy was a common plan or scheme to achieve a common, single, comprehensive goal." Commonwealth v. Troop, 391 Pa. Super. 613, 571 A.2d 1084, 1090, appeal denied, 526 Pa. 634, 584 A.2d 317 (1990). *fn2
We conclude therefore that appellant cannot be punished separately for each conspiracy; multiple sentences under these circumstances are explicitly precluded by statute. 18 Pa. C.S.A. § 903(c).
In deference to the trial court's sentencing scheme, we find that a remand is appropriate to allow the trial Judge to reassess appellant's punishment in light of our Disposition. Commonwealth v. Dobbs, 452 Pa. Super. 488, 682 A.2d 388, 392 (1996). We therefore vacate judgment of sentence and remand for resentencing. Jurisdiction relinquished.
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Things You Will Need
Fruits and vegetables (preferably organically grown), walking shoes, Fish, Nuts, Soluble fiber rich foods,
Step 1
The first step is to eat healthier. Eat at least 6 servings a day of foods containing soluble fiber such as oatmeal, whole grain cereals and breads, kidney beans, apples, pears, and bananas to name a few. Eat 2 to 4 servings of fruit a day. Drink fat free or low-fat milk or soy based substitutes. Eat more fish, poultry without the skin, and lean cuts of meat, (always remove any excess fat before cooking). Eat nuts such as almonds and walnuts (avoid the honey roasted and salted ones). Try using spices instead of butter or sauces. Use olive oil when cooking. Read the nutritional labels on the food products you buy.
Step 2
The second step is to become more active. Remember to check with your healthcare provider before starting any exercise program. Start off slowly with an activity that you enjoy such as walking, biking, running or swimming. Take the stairs instead of the elevator. Keep a pair of walking shoes at work or in your car and take a walking break when possible. Have friends join you to make exercising a social event and more fun.
Step 3
Another step to naturally lowering cholesterol is to lose weight if you have those extra pounds that most of us have today. Exercising as listed in step two above increases your metabolic rate and when used in combination with a healthier, low calorie diet helps to shed the extra pounds. Also, if you smoke, quit. Always stay properly hydrated by drinking plenty of water.
A healthy lifestyle is important to help lower cholesterol naturally. Take the steps necessary to improve your quality of life.
Tips & Warnings
Stay informed by asking your healthcare provider questions. Take an active role in your health.
Always check with your health care provider before starting any exercise program.


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Appeal from the Circuit Court of Cook County; the Hon. Brian
B. Duff, Judge, presiding.
In June 1982, Mildred Raisl, a former employee of defendant corporation, filed a complaint in the circuit court of Cook County alleging that defendant was guilty of retaliatory discharge in that it had dismissed her because she had filed a workers' compensation claim. Count I of the complaint sought compensatory damages; count II sought punitive damages. Mildred Raisl died in 1983, and her sister Betty Raisl (plaintiff) was appointed special administrator to prosecute this action.
Following Mildred Raisl's death, defendant moved to dismiss this action, claiming that both counts of the complaint abated upon the death of the plaintiff employee. Following written and oral arguments, the trial court granted defendant's motion and dismissed both counts of the complaint.
The two issues presented in this appeal are: (1) whether an action for retaliatory discharge seeking compensatory damages abates upon the death of the employee; and (2) whether an action for retaliatory discharge seeking punitive damages abates upon the death of the employee.
• 1 The cause of action for retaliatory discharge was first recognized by our supreme court in Kelsay v. Motorola, Inc. (1979), 74 Ill.2d 172, 384 N.E.2d 358. Although the court acknowledged that the Workers' Compensation Act provided only for criminal, not civil, penalties for employers who fired workers for exercising their rights under the Act, the court held that a tort cause of action for retaliatory discharge was necessary to uphold and implement the significant public policy underlying the Act. The court found that the "fundamental purpose of the Act" was:
"to afford protection to employees by providing them with prompt and equitable compensation for their injuries. [Citation.]
The Workmen's Compensation Act, in light of its beneficent purpose, is a humane law of a remedial nature. [Citation.] It provides for efficient remedies for and protection of employees and, as such, promotes the general welfare of the State. Consequently, its enactment by the legislature was in furtherance of sound public policy. [Citation.] We are convinced that to uphold and implement this public policy a cause of action should exist for retaliatory discharge." (74 Ill.2d 172, 180-81.)
The court observed that this cause of action was not akin to a contract action but was a "separate and independent tort." 74 Ill.2d 172, 187.
In Illinois, the determination of whether an action abates upon the plaintiff's death is governed by common law rules and the statutory provisions changing the common law. Such decision depends upon the nature of the cause of action involved. See McGill v. Lazzaro (1978), 62 Ill. App.3d 151, 379 N.E.2d 16.
The common law distinguished between those actions which survive and those which abate based upon the type of injury the deceased plaintiff had suffered. "If the interest to be protected was primarily a property interest, then the action survived; however, if the interest was primarily personal, the action was held to abate. [Citation.]" (Shapiro v. Chernoff (1972), 3 Ill. App.3d 396, 403, 279 N.E.2d 454.) At common law, the death of either party abated tort actions. Butterman v. Chamales (1966), 73 Ill. App.2d 399, 220 N.E.2d 84.
The Illinois survival statute changed the common law to allow representatives of the deceased to maintain an action which had accrued during the deceased's lifetime. (Merrihew v. Chicago City Ry. Co. (1900), 92 Ill. App. 346.) The statute does not create a statutory cause of action. It merely permits a representative of the decedent to maintain those statutory or common law actions which had already accrued to the decedent before he died. National Bank v. Norfolk & Western Ry. Co. (1978), 73 Ill.2d 160, 383 N.E.2d 919.
In relevant part, the Illinois survival statute provides:
"In addition to the actions which survive by the common law, the following also survive: * * * actions to recover damages for an injury to real or personal property * * *." (Ill. Rev. Stat. 1981, ch. 110 1/2, par. 27-6.)
Early interpretations of the survival statute were very restrictive. (See, e.g., Holton v. Daly (1882), 106 Ill. 131.) Beginning with Saunders v. Schultz (1960), 20 Ill.2d 301, 170 N.E.2d 163, our supreme court began to interpret the statute more expansively.
In McDaniel v. Bullard (1966), 34 Ill.2d 487, 216 N.E.2d 140, the court held that a wrongful death action was "personal property" under the survival statute and therefore survives the death of the decedent. The court there overruled its own prior decisions which had construed the term "personal property" in the survival statute to apply only to "tangible" or "chattel" property which could be "seen and handled."
"We think the statute ought no longer be given such a narrow, technical construction. Whatever may be the distinction between a property right in its most general sense and `real or personal property,' we cannot consider property tangible merely because people usually thought of it that way in the 19th century. Such a rule of statutory construction would lead to absurd consequences and would largely defeat the object of the Survival Act in modern society. Broad terms like `personal property' must be construed with reference to the conditions of present-day life. * * *. The act involved here does not say `goods and chattels,' as it might well have done had it contemplated the narrow scope given to it in the [earlier] cases. Instead it employs the all-embracing term `personal property.' The word `property' is a generic term and its meaning in any case must be determined by the sense in which it is used." 34 Ill.2d 487, 490-91.
The court stated that "there is no reason why an estate that has been injured or depleted by the wrong of another should not be compensated whether the injured party is living or not. [Citation.] The rule of abatement has its roots in archaic conceptions of remedy which have long since lost their validity. The reason having ceased the rule is out of place and ought not to be perpetuated." 34 Ill.2d 487, 494.
In Walter v. Board of Education (1982), 93 Ill.2d 101, 108, 442 N.E.2d 870, the court, citing to McDaniel, decreed: "The Survival Act is a remedial statute and is liberally construed to prevent abatement."
In reliance on these holdings, we believe that count I of the complaint here, seeking compensatory damages for retaliatory discharge, is "personal property" within the meaning of the survival statute.
It has also been recognized that a "second test has been widely applied to determine whether a specific action survives. If the right asserted in an action is assignable, it has been held that it survives the death of either party. [Citation.]" (Shapiro v. Chernoff (1972), 3 Ill. App.3d 396, 403, 279 N.E.2d 454.) In Kelly v. Chicago Park District (1950), 341 Ill. App. 37, 92 N.E.2d 782, the court found that an action for back wages resulting from plaintiff's wrongful termination from employment was "assignable, and therefore survived the deceased." (341 Ill. App. 37, 45.) Applying this second test, we find that count I of the complaint herein survived. We hold that the trial court erred in dismissing count I of plaintiff's complaint.
• 2 The second issue raised here is whether count II of the complaint, seeking punitive damages for retaliatory discharge, survives or abates.
In Mattyasovszky v. West Towns Bus Co. (1975), 61 Ill.2d 31, 330 N.E.2d 509, the supreme court held that the survival statute does not authorize the award of punitive damages in those actions surviving under it.
"This statute has never been thought to authorize the award of punitive damages * * *. We find nothing * * * which suggests a change in the law of this State which for more than a hundred years has limited recovery under the Survival Act to compensatory damages."
In National Bank v. Norfolk & Western Ry. Co. (1978), 73 Ill.2d 160, 383 N.E.2d 919, the court upheld recovery of punitive damages in an action brought under the survival statute because the underlying cause of action was based on the Illinois Public Utilities Act which itself allowed for punitive damages.
"The Survival Act itself neither authorizes nor prohibits punitive damages. It is merely the vehicle by which the cause of action, created by the Public Utilities Act, survives the death of the injured person when the action would otherwise have abated at common law. Unquestionably, the Public Utilities Act intends to punish an offender and discourage similar offenses by allowing punitive damages to be awarded whenever an injury results from a defendant's wrongful and wilful statutory violation. It would pervert the Act's intention if reprehensible conduct, so severe in consequence that resultant injury, culminating in death, was to be insulated from punitive liability under the very act designed to vigilantly promote safety by public utilities. Punitive damages for injuries prior to death should be unaffected by the subsequent death of the injured person, for punitive recovery addresses only the nature and gravity of a defendant's wrongful and wilful act." 73 Ill.2d 160, 174.
In Froud v. Celotex Corp. (1983), 98 Ill.2d 324, 456 N.E.2d 131, the supreme court reaffirmed both the National Bank and Mattyasovszky holdings with regard to the survival of punitive damage claims.
"The conclusion that is ordained on the basis of the above analysis of Mattyasovszky and National Bank is clear. Because there is no statutory basis for the award of punitive damages in these cases comparable to the provisions of the Public Utilities Act * * *, we must regard Mattyasovszky as the controlling precedent. Under Mattyasovszky the plaintiffs' claims cannot survive the death of the injured persons.
We are unwilling to accept the plaintiffs' invitation to overrule Mattyasovszky and add to the scope of the Survival Act by including within it common law claims for punitive damages based upon an injury to the person." 98 Ill.2d 324, 335.
In our opinion, the instant case does not fall squarely within the strictures of the Mattyasovszky, Froud or National Bank cases.
In Mattyasovszky the court was faced with the question of whether punitive damages should survive the injured party's death in a wrongful death action alleging wilful and wanton misconduct. The court observed that the purpose of punitive damages was "primarily to punish the offender and to discourage other offenses." The court stated that the "underlying strength of these objectives of punishment and deterrence varies substantially from case to case" from the "intentional [misconduct] which is also a crime" to allegations of wilful and wanton conduct, "a characterization that shades imperceptibly into simple negligence." (Mattyasovszky v. West Towns Bus Co. (1975), 61 Ill.2d 31, 35.) The court suggested that punitive damages were more appropriately applicable to acts of intentional misconduct since such misconduct was "clearly defined. That is not so when the question is whether the conduct of the defendant can be characterized as either negligence or willful and wanton * * *." (61 Ill.2d 31, 36.) Weighing the equitable considerations attendant, the court noted that "the single occurrence involved in the case before us already gives rise to two distinct statutory actions." The opinion also observed that the person whose conduct was "primarily responsible for the injury" was no longer a party and that "the punitive and admonitory justifications for the imposition of punitive damages are sharply diminished in those cases where liability is imposed vicariously. [Citations.]" (61 Ill.2d 31, 36, 37.) Concluding that no "strong equitable considerations" required an opposite decision, the court denied recovery of punitive damages.
In National Bank, the court found that the punitive damage claim there survived because "[t]hat claim [for punitive damages under the Public Utilities Act] is an integral component of the regulatory scheme and of the remedy which is available under it: it can no more be diminished by common law doctrines such as abatement than a statutory limitations period can be eroded by such equitable doctrines as tolling." Froud v. Celotex Corp. (1983), 98 Ill.2d 324, 332-33.
In Froud the court held that punitive damage claims for wilful and wanton misconduct did not survive decedents' deaths. However, the court reaffirmed its conclusion in Mattyasovszky that an action for punitive damages would survive "where `strong equitable considerations' existed such as the unavailability of any other remedy." 98 Ill.2d 324, 330.
We interpret the supreme court's opinions in Mattyasovszky, National Bank and Froud to hold that punitive damages claims will survive when either: (1) there exists a "statutory basis" for such claims or when such claims are an "integral component of the regulatory scheme and of the remedy which is available under it"; or (2) "strong equitable considerations" advocate survival. We find that these factors obtain in the instant case.
• 3 Although the retaliatory discharge tort, and the award of punitive damages therefor, were not expressly provided for by the legislature in the Workers' Compensation Act, we believe that such claims do have a statutory basis. The supreme court has stated that the public policy of allowing injured workers to "freely file" compensation claims was "clearly mandated by the legislative enactment of the Workmen's Compensation Act as a comprehensive scheme for providing prompt and equitable compensation to injured workers." (Barr v. Kelso-Burnett Co. (1985), 106 Ill.2d 520.) Thus, an action for retaliatory discharge is based upon the public policy enunciated in the Workers' Compensation Act.
So also the supreme court has emphasized the crucial role which punitive damages play in protecting against violations of this statutory comprehensive scheme for protecting workers. The court has held that punitive damages are both: (1) the only effective deterrent to employer violations of this public policy; and (2) necessary to afford wrongfully discharged employees a complete remedy.
"In the absence of the deterrent effect of punitive damages there would be little to dissuade an employer from engaging in the practice of discharging an employee for filing a workmen's compensation claim. For example in this case, the plaintiff was entitled to only $749 compensatory damages. * * * In the absence of other effective means of deterrence, punitive damages must be permitted to prevent the discharging of employees for filing workmen's compensation claims." Kelsay v. Motorola, Inc. (1978), 74 Ill.2d 172, 186-87.
In Midgett v. Sackett-Chicago, Inc. (1984), 105 Ill.2d 143, 473 N.E.2d 1280, the court stated:
"In Kelsay, an essential factor in providing the action for retaliatory discharge was a recognition of the importance of permitting the allowance of punitive damages against the offending employer.
If there is no possibility that an employer can be liable in punitive damages, not only has the employee been afforded an incomplete remedy, but there is no available sanction against a violator of an important public policy of this State." 105 Ill.2d 143, 149-50.
We believe that the significant role of punitive damages in these cases provides strong equitable considerations which warrant holding that punitive damage claims survive the death of decedent. The supreme court has repeatedly held that a retaliatory discharge is "offensive to the public policy of this State * * *." (Darnell v. Impact Industries, Inc. (1984), 105 Ill.2d 158, 161, 473 N.E.2d 935. See also Midgett v. Sackett-Chicago, Inc. (1984), 105 Ill.2d 143, 150; Kelsay v. Motorola, Inc. (1978), 74 Ill.2d 172, 181.) To hold that punitive damage claims abated would be to weaken the only effective means of deterring violations of this public policy and to afford victims only an incomplete remedy.
We conclude that punitive damages in these cases are necessary to further the public policy of this State, to punish its violators and to afford a complete remedy to unlawfully discharged employees.
Based upon the foregoing, we hold that an action for retaliatory discharge predicated upon the Workers' Compensation Act and seeking punitive damages survives the death of the discharged employee. Therefore, the trial court erred in dismissing count II of the complaint.
The trial court's order of dismissal is reversed, and this cause is remanded for further proceedings.
Reversed and remanded.
STAMOS, P.J., and HARTMAN, J., concur.
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Patti Kilian
Oral W. Schultz
My name is Patti Kilian and Oral Schultz was my step grandmother. She married my grandfather Harold Kilian. When he died the headstone was made with her name as a Kilian. She married Lloyd Schultz, but he buried with his mother. Oral is buried with my grandfather in Ovid.
I hope this helps.
Added by
Patti Kilian
on Sep 30, 2012 4:25 PM
Robert & Christine Stom
Pearsalls at West Haven Cemetery
Hello Theresa,
I was tickled to find your photos of the graves of my 3rd great grandparents and their son:
Edgar Pearsall (1842-1892)
Mary A Pearsall (1843-1930)
Frank B Pearsall (1873-1879)
at the West Haven Cemetery in New Haven (Shiawassee County). Thank you so very much for your hard work in taking and uploading the photographs!
I was wondering if you possibly had any larger or higher resolution versions of these photos and, if so, would it be possible for you to email them to me or let me know where I could download them?
Thank you so much,
Christine Stom
Added by
Robert & Christine Stom
on Oct 13, 2011 6:23 PM
Judy B.
RE: Joseph Pelong
Thank you very much! Yes, this was my GG Grandfather. Judy
Added by
Judy B.
on Apr 12, 2011 1:27 PM
Ashley (Ross) Norris
My name is Ashley Ross you went to newton-compeau cemetery and took a photo of my grandmothers grave for me I wanted to thank you from the bottom of my heart, having this picture and seeing how beautiful her headstone is makes me vary happy. I miss her dearly and I still havnt got to go see her since her funeral in 07 so I just want to thank you once again it means ALOT to me.
Added by
Ashley (Ross) Norris
on Feb 19, 2011 9:51 AM
Ferdinand & Ruby Georgie
In April you most kindly took and posted photos for Ferdinand and Ruby Georgie in Chapel Hill Memorial Gardens. If I did not write to thank you at that time, let me say how much I appreciate your generosity in doing so! And if these thanks are belated, they are nonetheless heartfelt. My apologies. Thanks again, and best wishes.
Added by
on Jan 29, 2011 5:27 PM
Oscar and Emma Chaffee-West Haven Cemetery
Hi Theresa
You posted a picture of Oscars stone that also included info on Emma. Could you also post the picture on Emmas Memorial? Her number is 42331129. Thanks!!
Added by
on Aug 12, 2010 7:00 AM
David Burpee
George Burpee
Theresa, thanks so much for taking the time to get this photo for me....I am very appreciative...Dave Burpee
Added by
David Burpee
on Apr 11, 2010 7:27 PM
Thank you!
Dear Theresa,
I was so thrilled to see the photos you took. Thank you! I know they're weathered, but were you able to make out the dates on the stones when you were there?
All the best,
Added by
on Apr 04, 2010 9:01 PM
Thank you very much for posting a photo of Joseph Manning's grave.
Added by
on Apr 02, 2010 11:13 PM
Forrest Ellis
Harvey Pics
Thank you very much for the Photos of George & Sarah Harvey (Nee Kriner)!!
I am related, all be it as 1st cousins, 4th removed.
Would it be O.k if I was to use the pics on my ancesty. com pages? I have been doing Genealogy now for about 10+ yrs.
Thanks, Forrest
Added by
Forrest Ellis
on Apr 02, 2010 11:51 AM
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September 13, 2012
ELRADER BROWNING, III,PLAINTIFF,v.GRIMM, ET AL., DEFENDANTS.
ORDER DENYING PLAINTIFF'S REQUEST FOR ENTRY OF DEFAULT ECF No. 17
Plaintiff Elrader Browning, III ("Plaintiff") is a prisoner in the custody of the California Department of Corrections and Rehabilitation ("CDCR"). Plaintiff is proceeding pro se and in forma pauperis in this civil action pursuant to 42 U.S.C. § 1983. This action is proceeding against Defendant Grimm for deliberate indifference to a serious medical need in violation of the Eighth Amendment. On March 19, 2012, Plaintiff requested entry of default against Defendant Grimm. ECF No. 17. On March 21, 2012, Defendant Grimm filed an opposition. ECF No. 18. The matter is submitted pursuant to Local Rule 230(l).
"When a party against whom a judgment for affirmative relief is sought has failed to plead or otherwise defend, and that failure is shown by affidavit or otherwise, the clerk must enter the party's default." Fed. R. Civ. P. 55(a).
On February 15, 2012, the waiver of service was returned executed as to Defendant Grimm. The United States Marshal, who effected service of process on behalf of Plaintiff, served the waiver on December 19, 2011, the date it was mailed. ECF No. 14. The waiver of service was returned on January 25, 2012. Sixty days from December 19, 2011 is February 17, 2012. Defendant's answer 2 was not filed until February 21, 2012. Thus, it appears that Defendant's answer may have been late.*fn1
However, no default is entered if Defendant has filed a response indicating an intent to 4 defend against the action. See Fed. R. Civ. P. 55(a) (default against party who fails to plead or 5 otherwise defend). Defendant's answer, if late, was late by only a few days. Even if the Court had 6 entered default, the Court would find good cause to set aside default here. 7
Accordingly, it is HEREBY ORDERED that Plaintiff's request for entry of default, filed March 19, 2012, is denied. 9
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Lake Arragan and Cakora Lake broke their banks at Brooms Head after the east coast low hit. Photos Contributed
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