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July 20, 2010
UNDERWOOD & WONG, INC., PLAINTIFF,v.RICARDO ENRIQUEZ, DEFENDANT.
Plaintiff's motion for entry of default judgment came on regularly for hearing on July 15, 2010. Marion Quesenbery appeared for plaintiff. No appearance was made for defendant Ricardo Enriquez. Upon review of the motion and the supporting documents, upon hearing the arguments of counsel and good cause appearing therefor, the court recommended entry of default judgment in open court. Therefore, THE COURT MAKES THE FOLLOWING FINDINGS AND RECOMMENDATIONS:
Plaintiff Underwood & Wong, Inc., is a California corporation with its principal place of business in Los Angeles, CA. Plaintiff sues Ricardo Enriquez for money due for shipments of perishable agricultural commodities made to defendant between July 23, 2008 and September 12, 2008. The complaint contains claims for violations of the Perishable Agricultural Commodities Act ("PACA"), 7 U.S.C. § 499e(c)(5), breach of fiduciary duty by a PACA trust trustee, and state claims of breach of contract and unjust enrichment.
Defendant Enriquez is an individual doing business as Sacramento Valley Produce in Sacramento, CA.
Plaintiff seeks recovery in excess of $10,000.00.
Jurisdiction is proper under 28 U.S.C. § 1331. Venue is proper in this district because defendant is located within the division of this district.
Plaintiff asserts that defendant is a United States Department of Agriculture ("USDA") licensed dealer of perishable agricultural commodities in interstate and/or foreign commerce and is subject to PACA. (See Quesenbery Decl., ¶ 4 and Ex. A.)
Plaintiff submits that it entered into contracts of sale with defendant from July 23, 2008 through September 12, 2008 for the purchase and sale of agricultural commodities. (Quesenbery Decl., Ex. A, Parts 1 and 2; Underwood Decl., ¶¶ 6, 8.) Pursuant to those contracts, plaintiff sold and shipped fresh fruit and vegetables to defendant in Sacramento, CA, for which defendant agreed to pay plaintiff $20,000.00. Payment was due within ten days of delivery of the merchandise. Although defendant received and accepted the produce listed on plaintiff's invoices, defendant has only paid plaintiff $10,000.00 of the total sum due. (Underwood Decl., ¶¶ 6, 8, 9, 12, and 13.)
Plaintiff maintains that it is licensed by the USDA as a commission merchant, dealer and/or broker of perishable agricultural commodities. (Quesenbery Decl. ¶ 5.) Pursuant to 7 U.S.C. § 499e(c)(4), plaintiff printed on the face of the invoices that it gave to defendant the following statutory language:
The perishable agricultural commodities listed on this invoice are sold subject to the statutory trust authorized by section 5(c) of the Perishable Agricultural Commodities Act, 1930 (7 U.S.C. §499e(c)). The seller of these commodities retains a trust claim over these commodities, all inventories of food or other products derived from these commodities and any receivables or proceeds from the sale of these commodities until full payment is received. (See Quesenbery Decl., Ex. A, Parts 1 and 2.)
Plaintiff maintains that it performed all of its obligations and duties under the contracts. Under the terms of those contracts, in the event an account is not paid when due, it is subject to a 1-1/2% monthly delinquent charge (18% per year) and attorneys' fees and other costs of collection. (Underwood Decl., ¶¶ 8, 12, and Ex. A.)
Plaintiff seeks actual damages in the amount of $10,000.00, the sums remaining due on the contracts. Plaintiff avers that defendant paid only $10,000.00 of the $20,000.00 due. Plaintiff also seeks interest on the debt owed in the amount of $4,320.96 through July 1, 2010 and .049% per day thereafter on the outstanding debt until paid in full. (Quesenbery Decl., ¶ 10 and Ex. D.)
Pursuant to the express language of the contracts, the prevailing party is entitled to an award of attorneys fees, costs and expenses arising out of litigation. Plaintiff seeks attorneys fees and costs in the total amount of $4,537.00. (Quesenbery Decl., ¶¶ 7-9 and Ex. C.)
I. Request for Default Judgment
The complaint in this matter was served upon defendant by mail on June 24, 2009. Pacific Atlantic Trading Co. v. M/V Main Express, 758 F.2d 1325, 1331 (9th Cir. 1985) (default judgment void without personal jurisdiction). Defendant has not filed an answer. The clerk of the court entered default against defendant on September 2, 2009. Notice of the entry of default as well as plaintiff's motion for entry of default judgment were served by mail on defendant at his last known address. Defendant has filed no opposition to the motion for entry of default judgment.
Entry of default effects an admission of all well-pleaded allegations of the complaint by the defaulted party. Geddes v. United Financial Group, 559 F.2d 557 (9th Cir. 1977). Entry of default judgment is proper where, as in the present case, the facts established by the default support the causes of action pled in the complaint. The complaint and the affidavits filed in support of the motion for entry of default judgment also support the finding that plaintiff is entitled to the relief requested in the prayer for default judgment, which does not differ in kind from the relief requested in the complaint. Henry v. Sneiders, 490 F.2d 315, 317 (9th Cir.), cert. denied, 419 U.S. 832 (1974). There are no policy considerations which preclude the entry of default judgment of the type requested. See Eitel v. McCool, 782 F.2d 1470, 1471-1472 (9th Cir. 1986).
Title 7 U.S.C. § 499b(4) provides in pertinent part that it shall be unlawful in, or in connection with, any transaction in interstate or foreign commerce, for any commission merchant, dealer, or broker to fail or refuse truly and correctly to account and make full payment promptly in respect of any transaction in any perishable agricultural commodity to the person with whom such transaction is had, or to fail, without reasonable cause, to perform any specific action or duty, express or implied, arising out of any undertaking in connection with any such transaction, or to fail to maintain the trust as required under section 499e(c). In pertinent part, § 499e(c)(2) provides for a trust with respect to commodities received:
2) Perishable agricultural commodities received by a commission merchant, dealer, or broker in all transactions, and all inventories of food or other products derived from perishable agricultural commodities, and any receivables or proceeds from the sale of such commodities or products, shall be held by such commission merchant, dealer, or broker in trust for the benefit of all unpaid suppliers or sellers of such commodities or agents involved in the transaction, until full payment of the sums owing in connection with such transactions has been received by such unpaid suppliers, sellers, or agents. Payment shall not be considered to have been made if the supplier, seller, or agent receives a payment instrument which is dishonored.
7 U.S.C. § 499e(c)(2). The unpaid supplier must retain and preserve the benefits of the trust by giving notice of intent to do so to the commissioner merchant, dealer, or broker, and this may be accomplished by giving written notice on ordinary and usual billing or invoice statements.
§ 499e(c)(3), (4). The notice must be given to the buyer within thirty days of a payment default, or by referring to the trust on invoices. Id.
The elements of recovery under a PACA trust claim are thus the transaction, here a contract for sale of perishable agricultural commodities; purchase and receipt of the perishable agricultural commodities by a commission merchant, dealer, or broker engaged in the handling of produce in interstate and/or foreign commerce, who is thus subject to PACA; a failure to pay fully and promptly, or a failure to maintain the trust as required by § 499e(c); and preservation of trust rights by the seller by notifying of intent to preserve the benefits of the trust on invoices or billing statements. 7 U.S.C. §§ 499b, 499e(c); Sunkist Growers, Inc. v. Fisher, 104 F.3d 280, 284 (9th Cir. 1997).
Here, plaintiff properly alleged that defendant Enriquez was engaged in the handling of produce in interstate and/or foreign commerce as a commission merchant, dealer and/or broker. Plaintiff alleged that it shipped perishable agricultural commodities to defendant at defendant's request and pursuant to agreements by defendant to $20,000.00. Defendant paid $10,000.00 of the amount due, but failed to pay the remaining balance of $10,000.00. Plaintiff also alleged the creation of the trust by submitting evidence that the invoices sent to defendant reflected the language required by 7 U.S.C. § 499e(c).
Accordingly, the undersigned concludes that the complaint is legally sufficient to state a claim or claims under PACA against defendant Enriquez for enforcement of the statutory trust based on a failure to perform the duty to account and pay fully and promptly, and to conserve the trust assets for the benefit of plaintiff. The complaint is also legally sufficient to state a claim for breach of contract. Cal. Civ. Code §§ 1549, 1550; Acoustics, Inc. v. Trepte Construction Co., 14 Cal. App. 3d 887, 913 (Cal. Ct. App. 1971).
As to the state claim of unjust enrichment, plaintiff has not briefed the legal sufficiency of this claim and has not explained what disposition is to be made of the claim upon which judgment is not sought.
Good cause appearing, it is the recommendation of this court that plaintiff be granted default judgment as to plaintiff's PACA and breach of contract claims.
II. Relief Requested
It is specifically provided in PACA that the remedies created by the Act are in addition to, and are not intended to in any way abridge or alter, the remedies existing at common law or by statute. § 499e(b).
A. Actual Damages
Defendant is liable to plaintiff for actual damages in the amount of $10,000.00.
B. Interest
Plaintiff seeks prejudgment and post judgment interest. In diversity cases, state law governs awards of interest. Lund v. Albrecht, 936 F.2d 459 (9th Cir. 1991). Plaintiff submits that the interest due to it is $4,320.96 through July 1, 2010, and 0.49% per day thereafter until paid in full. Plaintiff argues that post-judgment interest should be set at the same contractual rate as prejudment interest. See Rey Rey Produce SFO, Inc. v. M&M Produce & Food Services, 2006 LEXIS 47949 at *10-11 (N.D. Cal. 2006). The court agrees.
C. Attorneys' Fees and Costs
The written agreement entitled the prevailing party to an award of attorney's fees, costs and expenses arising from litigation. Plaintiff requests that the court award $4,537.00 in attorneys' fees and costs. The affidavit provided by counsel as to attorneys fees and costs is supported by detailed billings.
Accordingly, IT IS HEREBY RECOMMENDED that:
1. Plaintiff's June 4, 2010 motion for entry of default judgment be granted as to plaintiff's PACA and breach of contract claims;
2. Plaintiff be awarded $10,000.00 in actual damages; 3. Plaintiff be awarded interest in the amount of $4,320.96 through July 1, 2010, and 0.49% per day thereafter until paid in full; and
4. Plaintiff be awarded $4,537.00 in attorneys' fees and costs.
These findings and recommendations are submitted to the United States District Judge assigned to the case, pursuant to the provisions of 28 U.S.C. § 636(b)(l). Within ten days after being served with these findings and recommendations, any party may file written objections with the court and serve a copy on all parties. Such a document should be captioned "Objections to Magistrate Judge's Findings and Recommendations." The parties are advised that failure to file objections within the specified time may waive the right to appeal the District Court's order. Martinez v. Ylst, 951 F.2d 1153 (9th Cir. 1991).
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Getting doored on a road is to Taiwan what getting prosecuted for challenging the government approved narrative is to Canada. In Taiwan, people were getting doored since before cars were invented. Fact. Obviously, when I heard that a cyclist in San Francisco got doored, it peaked my attention. But as I went from frame to … Continue reading "Cyclist Doored Taiwan Style on Road in San Francisco"
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Leg Injured by Teeth of Bicycle Chainring
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Bus Reverses Off Man Crushed Under Its Wheels
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Cyclist Tries to Beat Train, Train Wins
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Aftermath of Accident Involving Trio of Bicyclists That Overshot Curve
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Polish Bicyclist Tries to Pass a Tram, Wipes Out Right in Front of It
That… was some unbelievable stopping distance. A Polish bicyclist riding without common sense and lacking respect for the basic principles of road safety, tried to recklessly squeeze between two meeting trams. As he was passing the one traveling in the same direction, his wheel fell into the rail groove, forcing him to wipe out right … Continue reading "Polish Bicyclist Tries to Pass a Tram, Wipes Out Right in Front of It"


text:
Delphi redevelopment proceeds with City Hall, library
Oak Creek City Hall and the community's library will move to the former Delphi Corp. site as part of that property's redevelopment, under a Common Council vote this week.
The transaction also clears the way for Wispark LLC, the development arm of Wisconsin Energy Corp., to proceed with development of a business park at S. Howell Ave. and W. Oakwood Road, according to an Oak Creek Now.com article by reporter Candace Romano.
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Commercial Real Estate News
Common Council rejects apartment high-rise behind Goll House
A proposed $55 million 27-story apartment tower for Milwaukee's east side has been rejected by the Common Council.
The council on Tuesday voted 10-5 to support the project, falling two votes short of the supermajority needed for approval. The zoning change needed 12 votes because a protest petition was signed by enough adjacent property owners, said Ald. Ashanti Hamilton, council president.
The opponents were Ald. Robert Bauman, whose district includes the site, along with aldermen Cavalier Johnson, Mark Borkowski, Jose Perez and Tony Zielinski.
Check the Milwaukee Assessor's Office website, which includes tools to look up property assessments.
Find property assessments for other communities throughout the state at AssessorData.org.
The Milwaukee Department of City Development website includes information on the city Plan Commission and Redevelopment Authority.
The Commercial Association of Realtors Wisconsin offers information on commercial realtors and real estate.
The Milwaukee chapter of the Institute of Real Estate Management serves the needs of real estate management professionals
The Wisconsin chapter of the NAIOP Commercial Real Estate Development Association aims to serve developers and owners of commercial real estate.
The Land and Space blog was recognized by the Society of American Business Editors and Writers in the blog category for dailies with circulation between 200,000 to 500,000.
The judges said, "Daykin's aggressive reporting and accessible, explanatory writing make him a must-read for his tight-knit and highly engaged audience."


text:
Not a day goes by without Rihanna posting semi-naked snaps of herself on her Twitter page but it seems even she's getting sick of the sight of her - admittedly gorgeous - bod.
Yep, nakedness is soooo last week. Now it seems she wants us all to know exactly what she looks like first thing in the morning.
RiRi posted a series of snaps of herself sans slap and proved that even superstars look pretty much like the rest of us before the army of hair and make-up technicians get to work.
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Play: Traffic Slam 3
Related Games
Description: Traffic Slam 3
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Control: Arrows = Drive, Space = Use Detonator, Z = Drift, X = Use Item, R = Reset Position, C = Rear View
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New racing games, shooting games, car games, bike games and sport games are added weekly! Traffic Slam 3 Games


text:
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Bollywood actress Shilpa Shetty Kundra was snapped at the inaugurationof jewellery showroom of Varti Jewells.
Bollywood celebs Deepika Padukone, Anushka Sharma, Yami Gautam, Sonam Kapoor, Arpita Khan Sharma, Vijay Krishna Acharya, Arjun Kapoor among others were seen at the special screening of BEFIKRE.
Bollywood celebs Irrfan Khan snapped at the launch of Johnston & Murphy store.
Bollywood celebs Sunny Deol and Madhurima Tuli were snapped at the airport.


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The Stranger
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About Me
Nov 29
commented on
Please Stop Asking Poor Old John McCain Questions About Dumb Old Donald Trump
I hate to admit it, but John McCain actually has a point here. All this discussion of Trump's Twitter shenanigans does nothing but fire up his base and cast everyone else as flag burning traitors.
Maybe we should be talking about the incredible damage his cabinet picks are going to inflict on this country? or his use of the office for his own enrichment a la Putin? or the...well that list goes on and on....
Nov 29
commented on
The Morning News:
Evacuation Order at Standing Rock, Matt Hickey in Court, Jon Grant Running for City Council
re: Trump's flag burning comment. Again, we're missing the real point of all of this. Trump says some stupid shit that the mouth breathing goons agree with to rile them up and equate opposition with treason. We take the bait and discuss the issue on its merits. The goons see this and it confirms their view that opposition is treason and we're a bunch of traitors.
Trump doesn't give a shit about anything but Trump. Remember that. Trump doesn't give a shit about anything but Trump. So, he obviously doesn't give a shit about flag burning, but he does give a shit about Trump power and keeping it. Distracting everyone with this flag crap furthers his power by keeping his goons riled up and making everyone else look like traitors. Well done Donnie!
Nov 18
commented on
Voter Suppression Is a Real Thing—and It Will Get Worse
The whole country should be vote by mail.
I tell people in other states that WA is completely vote by mail and they're dumbstruck. I haven't missed an election in years, but most people I know in those other states will maybe vote in presidential years, and then hardly any of the other elections like mid terms or local races.
Nov 8
commented on
Live Reports From Election Night 2016: We're Everywhere, Watching Everything!
How much of a complete douchebag is Trump going to be when he has to concede?
What are the odds of him being somewhat normal? or is he going to throw a yuuuge tantrum?
Oct 31
commented on
Homelessness Is a Growing Problem For People, Not For Cars
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commented on
Acquittal of Bundy Brothers Reveals Much More Than White Privilege
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Oct 28
commented on
Police Reports Illustrated: Man Parks in Beacon Hill
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Oct 25
commented on
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Oct 25
commented on
Morning News:
Key Arena's Free Health Clinic Is This Week and We Are So Screwed in the Event of an Earthquake
@3, You're right about the wooden structures having some resiliency in an earthquake, but most of our old brick buildings have not been retrofitted. You can tell the ones that have by those huge metal columns and cross braces. If you don't see those, chances are it hasn't been retrofitted and you don't want to be anywhere near it during an earthquake.
@4, Seattle won't suffer much or at all from a Tsunami, but the coast could well be toast depending on how it all goes down. That's where the preparation and drills really need to step up.
Oct 17
commented on
What's Next for the City Council's Controversial Efforts to Reduce Homeless Encampment Sweeps?
The anti O'Brien crowd seems to be growing up here in the North. It was a very vocal minority before but I think this might be getting closer to a tipping point especially if there were to be a decent challenger for the next election.
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About Eivana : "I've been puking up embalming fluid for weeks."
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About Eivana : "I've been puking up embalming fluid for weeks."
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- 1Today, I took a test. I got up to turn it in, and accidentally bumped into another student. We both… 2Today, I tried to fire the worst worker I've ever had over the phone because he never shows up for… 3Today, my energetic 10-month-old decided to stay up four hours past bedtime. After I FINALLY got…


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Summerplace Moorings really is the perfect place to float your summer fun. We are a small marina with lots of amenities and a friendly, family atmosphere. You can count on a warm smile, jovial conversation, and a good fish story from your neighbors here. Summerplace Moorings has 28 boat slips with sixteen are 28 foot slips, 6 are 30 foot and 6 are 35 foot. Each slip has ample dock space for a dock box and easy boarding, and all slips have drive near access, for easy loading and unloading. You will enjoy being at the end of a quiet culdesac as well as a quiet bend in the Black River, while also being just minutes from the festivities and shopping of downtown South Haven. Lessees and their immediate families have full access to one of the two club houses and full use of all common facilities. There are two spacious club houses on premises -- the South clubhouse services slips 1 through 16 and the North clubhouse services slips 17 through 28. Both club houses include a living room, eat-in kitchen and bath/shower facilities. Storage space is available in both the kitchens and the baths, eliminating the need to cart your belongings back and forth. The kitchen in both club houses are well stocked with dinnerware, utensils, and pots & pans for community use.
12 N Bailey
South Haven, MI 49090
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300 N. Washington Sq., Lansing, MI 48913


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I hear it alllllll the time. "B…you never review enough foundations." I know. I know. But it's only because I don't really wear foundation. Dude, I live in Florida. That and the fact that I sweat like a beast. Wearing a full face of foundation everyday just doesn't make sense to me. But every now and then I like to… Read More
Buttah-licious with Pooka Pure & Simple's Whipped Cream
Da butters. Have y'all ever seen that video of the lady on YouTube who was upset at Black people (she was kidding, of course) for hiding what she called "the butters"? It's a hilarious video. One that had me rollin' for weeks. In said video, she mentioned that she recently discovered shea butter and cocoa butter and she was blown… Read More
Milani's Illuminating Powders are almost TOO pretty to use
Anyone ever watch the show Hoarders? Centered around people who "hoard" items, this show takes you on a journey inside the mayhem that these people live in. While shocking, it's always sad because usually the hoarder had a breaking point in their lives that MADE them hold on to material things. Sometimes it's the death of a loved one, feeling… Read More
Soft skin and lips with NIVEA's newest.
Okay, quick crazy story about NIVEA. And I do mean quick. For the longest I would call Nivea (pronounced Niv-E-ya) Na-vay-ya. And I was so obsessed with how it sounded, that I promised myself that I would name my first child Nivea. Of course I made this declaration when I was like…14. Wait – so I was the only teen… Read More
NARS Makeup Removing Water + being nice to old ladies
My neighbors probably think I'm weird. I get in all kinds of positions to take shots of beauty products outside. I get into some kind of zone yo. And I am rarely friendly when I'm in the "zone". Which is sad because the older lady who lives across from me always manages to venture outside when I've got my derrière… Read More
One hot lookin' jar of Vaseline
Darliiiiiings, are you having a wonderful Valentine's Day? Please say yes. I get it. It's a commercialized holiday that gets people to spend their money. Every day should Valentine's Day. Yeah yeah, I get it. But come ooooon, what's not to love about…love? And speaking of love…. It's a blinged out jar of Vaseline? How cute is this? Right?! Soooooo… Read More
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Well, today's the big day, the day when you need to get your tax return sent in (unless you file with the IRS for an extension). And many people are already getting their tax returns back, since they sent them in early. So, what will you do if you are expecting a tax refund? Are you going on a vacation? Will you use your tax refund to finally finishing discharging that debt you racked up over the holidays? Are you even getting a tax refund (I'm not — I'm self-employed).
What you do with your tax refund depends, of course, on your personal finances, and on your financial goals. For many, that vacation is just what they need. But you can put your tax refund to good use by paying off those debts with high interest rates. Here are some other tax refund ideas that will get you on course for better personal finances:
- Open a high-yield savings account or invest in a CD (or a money market account)
- Boost your investment portfolio (wise, stable investments can put that money back to work for you)
- Infuse your retirement account (just make sure that you don't go over the yearly limits)
- Put an extra payment on a loan principal (whether this goes toward your mortgage — recommended — or your car loan, you can reduce your overall interest charges by paying down the principal)
Tags: tax refund ideas, personal finance, financial planning, finances,
financial goals, tax return, high-yield savings account, money market account


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Please contact Sue Coculo (firstname.lastname@example.com) for more information about this pet.
Meet Roscoe! He is the funniest little dog, everyone adores him! He is 1 year old and 25-30 pounds. He is super sweet and loves humans. He is great with other dogs and kids. He will make a great addition to any family! If you would like to meet him, fill out an online application on bcaaofnj.org
Interested in adopting this pet?
Click here for BCAA's on-line Application! PLEASE NOTE: Our adoption fee helps to cover our expenses and includes all shots, *age appropriate*, distemper and rabies, fecal check, spay/neuter, heartworm test, grooming, and in many cases dental and also the fee we pay when we rescue from a shelter.


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I could go on forever, but four years after my move I still suffer the consequences of ever letting these people touch my belongings.
I don't want to go into details, because reliving this excruciatingly painful event in my life just hurts too bad.
Lost (stolen?) items, broken items, overcharges (he held my belongings "ransom" while storing them -- he kept asking for more money, even though we had agreed to a price for storage), the saga goes on. To this day, I still discover items that he lost.
Six months after my move, I got a call from a woman on the other side of the country. She was unfortunate enough to have DT move her things, and when she was unpacking, she found a box of MY stuff in her things. She was nice enough to dig through it, find my name on an item, track me down, and mail my box to me.
There was not tagging of items/boxes, no logging of anything, no accountability at all.
Do yourself a HUGE favor and avoid DT's Quick Move like the plague they are. Someone should do the world a favor and shut this company down before they spread any more pain and suffering.


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Hi my name is Natasha I am all about my people. I am sweet and loving and the perfect cat for someone who wants a lap cat. My favorite places are on my humans lap or laying beside you while you sleep! Looking for a cuddle bug and someone to talk to you... I'm your girl! adoption fee covers: FIV/Felv testing, de-worming, vaccinations, spay/neuter, & Advantage flea prevention. If you would like to meet this loving kitty, please call Jill @ 865-765-3400 or email her at firstname.lastname@example.com. Please fill out an application at: www.happypawskittenrescue.org


text: Home Gallery Video Prada Candy L'Eau Wes Anderson and Roman Coppola Direct Prada Short film A very French love triangle stars actress Lea Seydoux Published on Mar 27, 2013 Editor's Pick Prada seems to have a knack for high-fashion film that are actually entertaining. We saw this last year when Roman Polanski directed the delightful "A Therapy," starring Helena Bonham Carter and Ben Kingsley. Now, the fashion house returns with the clout of both Wes Anderson and Roman Coppola, with a new short for the Prada Candy fragrance. It stars French actress Lea Seydoux (Midnight in Paris) as a starlet caught between the affections of two young men. The film was released via three separate episodes. It's filmed in a beautiful, delicate aesthetic (just look at the gorgeous arrangement of candles on the decorated-with-a-bow cake!) with striking symmetry used to frame each shot. At the end of each episode, the fragrance gets a plug. Only one problem: For those who enjoy a sense of closure, the end is not quite as satisfying as the rest of the film was. Rate this Ad You must be registered to rate the ad. Please Login or Register Now About CreditsDateMar 27, 2013Client:Prada CandyDirector:Wes AndersonDirector:Roman CoppolaExecutive Producer:Lisa MargulisExecutive Producer:Max BrunProduction Company:The Directors BureauProduction Company:Hi! ProductionProducer:Juiie AlfordProduction Service:Pioneer ProductionsProducer:Ezther RepassyDirector of Photography:Darius KhondjiProduction Designer:Tunde CsakiCostume Designer:Judy ShrewsburyEditor:Stephen Perkins CategoryShort Film Latest Creativity News on Ad Age 1stAveMachine, Click 3X, Humble Add Director Duos Lowe's Latest Spot Is 'Multi-Porpoise' Romance, Bromance Ruined by a Cheeky Skywriter in Slim Jim's New Spot Advertisement Ad Age Events Nov 02 Los Angeles, CA SummitAd Age Brand Summit The Ad Age Brand Summit in Los Angeles peels apart the layers of brand building with a carefully crafted roster of top marketing, technology, and creative leaders. Learn more Related work RayBan: Oh Jerome, No Yours Truly Creative David Gray: Canadian Customs Interviews Pilsen Callao: True Friendship Lasts Forever Publicis Peru Want to see your work in our gallery? Submit now


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Frank Thompson was everything athletics when he came to NC State in 1909 after a year at Davidson College. He captained the Wolfpack's baseball team for two years before he was named its coach. He also captained the football team.
So it might seem odd that on this day in 1923, the basketball facility on campus was named Thompson Gymnasium in honor of him. But the honor saluted more than just Thompson's athletic prowess.
The son of Judge John W. Thompson, Frank felt the patriotic call to serve his country. According to Hardy D. Berry's Place Names on the Campus of North Carolina State University, Frank was too old to be drafted for service in World War I. But he enlisted anyway in the Fifth Division's 15th machine gun battalion and soon became a first lieutenant serving in France.
Thompson was killed in action along the German lines when his division was attacked at Regnieville. "The news of his death reached his father in the Panama Canal Zone where he was serving as a judge by appointment of President Woodrow Wilson," writes Berry.
Reynolds Coliseum opened in 1949, and Thompson Gym became Thompson Theatre in 1963 after renovations. In 2009, the building was renamed Frank Thompson Hall, which houses the Crafts Center and University Theatre, the home for the dramatic arts at NC State.


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Do you recommend this activity for travellers looking for nightlife?
Does this activity require advanced planning, ticketing or reservations?
Is this activity accessible without advanced planning or reservations?
Does this attraction provide visitors with a taste of the local culture?
Is this attraction good for couples?
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Thanks for helping!
Best breakfast in town by far. We also enjoy Lunch here. The Cook is creative and skilled and it is a pleasant place to sit.
Beautifully restored, and an excellent venue that is well worth a visit. We went to see the Broons, and the show was memorable. Staff were friendly and helpful.
Last night was the first time I saw a production at the newly revamped Gaiety Theatre in Ayr, a Welsh Ballet production of Roald Dahl's version of Little Red Riding Hood and The Three Little Pigs. I was not disappointed. The ballet was beautifully staged with a kick of sly humour in it (true Roald Dahl style). The audience lapped...
After a total refurbishment it is great to see this great old building up and running once more. The building work done has been done tastefully with many of the original late baroque rococo features still in place. As a child i attended shows here during summer holidays in Ayr and as years went bye my wife Katie and i...
A lovely old theatre in the art-deco style with an opening day of 10 September 2016, the building has seen a huge restoration carried out sympathetically.
The tour of the building and the knowledge of the staff and friends of the theatre was outstanding.
Well worth a visit.
Attended the Sherlock Holmes Murder Mystery night....have been to similar productions at other venues but this one just seemed flat, almost amateurish. Perhaps it just wasn't what I was expecting given previous experiences. The actors and actresses were enjoyable but the whole production seemed to revolve around bad puns and one liners.
This is a fabulous venue for plays, clasical, folk jazz and pop music.it's very friendly and has both main auditorium and smaller studio venues. There's also ar restaurant attached. I would happily recommend this to any one. Contact them and they'll put you on their mainling list. Enjoy
This is a lovely theatre run by many volunteers. Don't let this put you off, there are established names that perform here as well as local talent. We saw 42nd Street last night and the amateur group were of a very high standard.
It is scheduled for a much needed revamp this year, so when it re-opens, it will be...
Just been to see the superb Chris Barber and his Big Band at this super wee theatre! I believe it is run by volunteers, having been resurrected after a time of closure. I hear they are introducing "A pie, pint and a play". It'll be well worth a visit!
Well done folks, keep it going!
We lived in Ayr in the sixties my last visit to this theatre was with my parents to see Lex McLean in I think was called the Gaiety Whirl ? circa. 1967?. So on a return visit to Ayr we went to see Jack and the Beanstalk . It was an excellent fun filled performance, the casts engagement with the...
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Sell Api Basket Strainer - Chinaprice: contact company for price
2. Pressure rating: ANSI 150lbs/300lbs/600lbs.PN16-PN64
3. Suitable medium: Water, gas, oil, steam etc.
4. Body material: WCB/A106, LCB/LCC, CF8/SS304, CF8M/SS316, CF3/SS304L, CF3M/SS316L
5. Screen: Stainless steel(304SS, 316SS)
6. End connection: BW/RF/RTJ
7.Body construction:casting type or fabricated type
8.Standards: API 594
Company Contact:
- Posted By: Tengs Valve International Limited
- Phone: 8618066318081
- Address: Keji Building,Jiangbei Sub-district,, Wenzhou, China
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- Website: http://www.tengsvalve.com
Published date: June 22, 2013 -
- Business Description: Tengs Valve International Limited is a professional API and DIN standards industrial valves and related products such as strainer, pipe fittings supplier and exporter. We have many years' valve manufacturing and export experience. Our factory has passed ISO, CE and API certification.
Our leading products are API/DIN standard gate valve, globe valve, swing check valve, Ball valve, butterfly valve, Y strainer, Basket strainer, temporary cone strainer, flange and forged valves etc; Main materials are carbon steel, alloy steel and stainless steel, such as WCB, WCC, LCB, LCC, WC6, WC9, C5, C12, CF8, CF8M, CF3, CF3M, A105, LF2, F11, F22, 304, 304L, 316, 316L, F51 etc. Size range from 1/2" to 48" (DN15 DN1200); Pressure rating from Class 150 to Class 2500, PN10 PN63;
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Sell Y Type StrainerFilters - Tengs Valve International Limited - China - June 22, 2013 - contact company for price
1. Sizes: 1/2' - 36' 2. Pressure rating: A)ANSI 150lbs/300lbs/600lbs/900lbs/1500lbs(casting body) b) ANSI 800lbs/900lbs/1500lbs/2500lbs (Forged type) 3. Suitable medium: Water, gas, oil, steam etc. 4. Body material: WCB/A105, LCB/LCC/LF2, CF8/SS304, ...
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October 2, 2007
UNITED STATES OF AMERICAv.ANTOIN REZKO
Defendant Antoin Rezko has moved to dismiss or strike portions of the Indictment. For the reasons discussed below, Defendant's Motion to Dismiss or Strike Portions of the Fraud Allegations is granted in part and denied in part, and Defendant's Motion to Dismiss Count 17 and Allegations Related Thereto is denied.
I. The Indictment
On October 5, 2006, a federal grand jury returned a superseding indictment ("the Indictment") charging Defendants Antoin Rezko and Stuart Levine*fn1 with mail and wire fraud, in violation of 18 U.S.C. §§ 1341, 1343, 1346, and 2; attempted extortion, in violation of 18 U.S.C. §§ 1951 and 2; and money laundering, in violation of 18 U.S.C. §§ 1956(a)(B)(I) and 2. (R. 96-1, Sup. Indict.) The Indictment also charges Defendant Rezko with aiding and abetting Defendant Levine in the solicitation of funds from various individuals and investment firms, in violation of 18 U.S.C. §§ 666(a)(1)(B) and 2. (Id.)
A. TRS Board
The Indictment alleges that the Teachers' Retirement System ("TRS") was a public pension plan created by Illinois law for the purpose of providing pension, survivor, and disability benefits for teachers and administrators employed in Illinois public schools, excluding the City of Chicago. (Id. ¶ 1(a).) TRS served approximately 325,000 members and annuitants, and had assets in excess of approximately $30 billion. (Id.) TRS was funded by annual contributions from teachers, their employers, and the State of Illinois, as well as investment income. (Id.) In addition, TRS received federal funds in excess of $10,000 during each calendar year from 2001 through 2004. (Id. ¶ 1(d).)
The Indictment further alleges that an eleven member Board of Trustees directed the activities of TRS. (Id. ¶ 1(b).) The Board, among other responsibilities, reviewed and voted to approve or reject proposals by private investment management companies to manage funds on behalf of TRS. (Id.) TRS compensated these companies for their activities, typically through fees calculated as a percentage of the TRS assets they managed. (Id.)
Defendant Levine was a member of the TRS Board of Trustees. (Id. ¶ 1(j).) In that role, the Indictment alleges that he owed a fiduciary duty and a duty of honest services to TRS and its beneficiaries. (Id. ¶ 1(c).) The Indictment refers to the criminal laws of the State of Illinois relating to bribery (720 ILCS 5/33-1(d)) and official misconduct (720 ILCS 5/33-3), and to the State Officials and Employees Ethics Act (5 ILCS 430/5-50) to define the scope of Levine's fiduciary duties. (Id. ¶¶ 1(q), (r), (s).)
The Indictment alleges that Antoin Rezko -- a businessman who owned and operated fast food restaurants and a real estate firm -- participated in a scheme to defraud the TRS beneficiaries of Mr. Levine's honest services. (Id. ¶¶ 1(i), 2.) As part of the alleged scheme, Rezko and others fraudulently used and sought to use Levine's position and influence as a member of the TRS Board of Trustees to obtain financial benefits for Rezko, Levine and their nominees and associates. (Id. ¶ 3.) Rezko allegedly used his relationship with certain Illinois State officials to ensure that Levine and other allies were in positions of influence on the TRS board. (Id. ¶ 3(a), 4, 4(a)-(c).) During the scheme, Rezko allegedly solicited, demanded, and received hundreds of thousands of dollars in undisclosed kickbacks and payments from seven investment firms (identified in the Indictment as, for example, "Investment Firm 1") seeking to do business with TRS. (Id. ¶¶ 3, 3(a)-(c), 5, 6, 6(a)-(t), 7, 7(a)-(l), 8, 8(a)-(h), 9, 9(a)-(f), 10, 10(a)-(h).)
As further part of the alleged scheme, Rezko attempted to establish a company to serve as an asset manager for TRS in order for Levine, Rezko, and their nominees to participate and financially benefit in the asset management operation without disclosing their positions to TRS. (Id. ¶¶ 3(c), 11, 11(a)-(d).)
B. The Planning Board
The Indictment further alleges that Levine and Rezko took steps to use their influence and Levine's position on another board, the Illinois Health Facilities Planning Board ("Planning Board"), in a scheme to receive kickbacks in exchange for the Planning Board's approval of an application to build a new hospital. (Id. ¶¶ 1(e), 1(j), 12, 12(a)-(e).) The Indictment refers to the Planning Board's Ethical Guidelines to define the scope of Levine's fiduciary duties. (Id. ¶1(t).)
II. The Honest Services Statute, 18 U.S.C. § 1346
The mail fraud and wire fraud statutes prohibit devising a "scheme or artifice to defraud, or for obtaining money or property by means of false or fraudulent pretenses, representations, or promises," and executing that scheme by use of the mails, 18 U.S.C. § 1341, or by use of wire, radio, or television communication in interstate commerce. 18 U.S.C. § 1346. "Until 1987, federal courts read both statutes to criminalize not only schemes for obtaining money or property, but also schemes to deprive another of 'the intangible right of honest services'"-- a "doctrine [] applicable to [various] categories of defendants, [including] . . . private actors who abuse fiduciary duties by, for example, taking bribes." United States v. Rybicki, 354 F.3d 124, 133 (2d Cir. 2003). In 1987, the Supreme Court, in McNally v. United States, 483 U.S. 350 (1987), held that, contrary to the courts' common reading, the language of the mail fraud statute, 18 U.S.C. § 1341, "clearly protects property rights," id. at 356, but does not criminalize schemes "designed to deprive individuals, the people, or the government of intangible rights, such as the right to have public officials perform their duties honestly." Id. at 358. "Under McNally, all schemes or artifices to defraud relating to intangible rights to . . . honest services . . . [were] therefore beyond the mail-fraud proscriptions." Rybicki, 354 F.3d at 134. "By necessary implication, the wire-fraud proscriptions were similarly limited." Id. In the following year, Congress enacted 18 U.S.C. § 1346 specifically to supersede McNally, and to define "scheme or artifice to defraud" to include a scheme or artifice to deprive another of the intangible right of honest services. See United States v. Segal, 495 F.3d 826, 834 (7th Cir. 2007); accord United States v. Bloom, 149 F.3d 649, 655 (7th Cir. 1998) ("In McNally the Supreme Court described the intangible rights theory this way: 'a public official owes a fiduciary duty to the public, and misuse of his office for private gain is a fraud.').
Breaching a fiduciary duty may constitute a deprivation of honest services under § 1346. See Segal, 495 F.3d at 834; United States v. Thompson, 484 F.3d 877, 882 (7th Cir. 2007); Bloom, 149 F.3d at 654-57 (citing cases); see also Rybicki, 354 F.3d at 138 n.13; United States v. Black, 469 F. Supp. 2d 513, 532 (N.D. Ill. 2006). Yet "[n]ot every breach of every fiduciary duty works a criminal fraud." Bloom, 149 F.3d at 654 (quoting United States v. George, 477 F.2d 508, 512 (7th Cir. 1973)); see also Segal, 495 F.3d at 834 ("Bloom remains the law in this circuit."). Rather, "[m]isuse of office (more broadly, misuse of position) for private gain is the line that separates run of the mill violations of state-law fiduciary duty . . . from federal crime." Bloom, 149 F.3d at 655; see also United States v. Hausmann, 345 F.3d 952, 956 (7th Cir. 2003).
III. Defendant Rezko's Motions
Defendant Rezko challenges the Indictment on four grounds. First, he argues that the Court should strike certain words from Count One of the Indictment. Second, Rezko urges the Court to dismiss or strike counts in the Indictment related to Investment Firm One (Counts 1, 2, 17, 23 and 24) because the Government's allegations do not support those counts. Third, Rezko argues that Counts One through Fifteen should be dismissed in their entirety because 18 U.S.C. § 1346 is unconstitutionally vague. Finally, Rezko requests that the Court strike references to Illinois ethical guidelines and criminal statutes in Count One of the Indictment because they are unnecessary and prejudicial.
I. Motion to Strike the Words "money, property, and" From Count One
Defendant Rezko has moved the Court to strike three words from the second paragraph of Count One of the Indictment.*fn2 (R. 96-1, Sup. Indict., at page 8.) The Government agrees to this modification, and therefore the Court grants Rezko's motion to strike the phrase "money, property, and" from the second paragraph of Count One.See Fed. R. Crim. P. 7(d); United States v. Marshall, 985 F.2d 901 (7th Cir. 1993).
II. Motion to Dismiss Counts Related to Investment Firm One
A. Legal Standard for Motions to Dismiss an Indictment
Fed. R. Crim. P. 12(b)(2) provides that "[a] party may raise by pretrial motion any defense, objection, or request that the court can determine without a trial of the general issue." Fed. R. Crim. P. 12(b)(2). When considering a motion to dismiss under Rule 12(b)(2), a court assumes all facts in the indictment are true and must "view all facts in the light most favorable to the government." See United States v. Yashar, 166 F.3d 873, 880 (7th Cir. 1999). When viewed in that light, an indictment is sufficient if it satisfies three, constitutionally-mandated, requirements. United States v. Anderson, 280 F.3d 1121, 1124 (7th Cir. 2002). First, the indictment "must adequately state all of the elements of the crime charged; second, it must inform the defendant of the nature of the charges so that he may prepare a defense; and finally, the indictment must allow the defendant to plead the judgment as a bar to any future prosecution for the same offense." Id. (citing United States v. Smith, 230 F.3d 300, 305 (7th Cir. 2000). In this regard, indictments "need not exhaustively recount the facts surrounding the crime's commission," United States v. Agostino, 132 F.3d 1183, 1189 (7th Cir. 1997), rather "when determining the sufficiency of an indictment, [a court] look[s] at the contents of the subject indictment 'on a practical basis and in [its] entirety, rather than in a hypertechnical manner.'" United States v. McLeczynsky, 296 F.3d 634, 636 (7th Cir. 2002) (quoting Smith, 230 F.3d at 305). In addition, "[a]n indictment, or a portion thereof, may be dismissed if it is otherwise defective or subject to a defense that may be decided solely on issues of law." United States v. Black, 469 F. Supp. 2d 513, 518 (N.D. Ill. 2006); United States v. Labs of Virginia, Inc., 272 F. Supp. 2d 764, 768 (N.D. Ill. 2003).
B. Factual Sufficiency of the Indictment
1. Counts One and Two
Rezko argues that the Indictment fails to allege one of the elements of the mail and wire fraud offenses charged in Counts One and Two. An indictment for mail or wire fraud is sufficient if it includes allegations that the defendant (1) participated in a scheme to defraud; (2) acted with intent to defraud; and (3) used the mail or wires in furtherance of the fraudulent scheme. Hausmann, 345 F.3d at 956; United States. v. Vincent, 416 F.3d 593, 600 (7th Cir. 2003). An honest services charge under § 1346 also requires that a defendant misused his office or position in furtherance of the scheme. See Bloom, 149 F.3d at 655.
(a) Misuse of Office
Rezko argues that the Indictment fails to allege that Levine used his office in connection with the transactions in Counts One and Two related to Investment Firm One.*fn3 The Indictment, however, alleges just that:
"It was further part of the scheme that Rezko and Levine agreed that they would use their influence and Levine's position on the TRS Board to assist Individual C in obtaining TRS funds for Investment Firms 1, 2, and 3..." (R. 96-1, Sup. Indict., ¶ 6) (emphasis added). Similarly, Rezko argues that the Indictment fails to support the charge that Levine misused his office in connection with the transactions related to Investment Firm One. Rezko's arguments border on the "hypertechnical" analysis that is not useful for evaluating an indictment. See McLeczynsky, 296 F.3d at 636; Black, 469 F. Supp. 2d at 518. Nonetheless, the Indictment does contain factual allegations which, when read in the light most favorable to the Government support the charge that Levine misused his office in connection with the Investment Firm One transactions. See, e.g., R. 96-1, Sup. Indict., ¶¶ 3 ("[Levine and Rezko] fraudulentlyused and sought to use the position and influence of Levine and other members of the TRS Board...), 14 ("Levine intentionally concealed from and failed to disclose to the TRS Board ... facts concerning the financial benefits that Rezko and Levine sought to obtain for themselves and their nominees..."). The Indictment also contains, at paragraphs 6(a) through (k), a series of very specific facts which, when read in the light most favorable to the Government, allege that Levine misused his position in relation to the Investment Firm One transactions. See Agostino, 132 F.3d at 1189.
Rezko relies heavily on a recent slip opinion, United States v. Hurtgen, No. 05 CR 408, 2007 WL 869558 (N.D. Ill., March 20, 2007), from a non-binding district court case. The Hurtgen case is factually distinguishable from the present case. In Hurtgen, the court dismissed the indictment against defendant Hurtgen because it failed to allege an offense. See Hurtgen, 2007 WL 869558, at *6-7. Specifically, the court found that the indictment failed to allege a violation of the mail and wire fraud statutes because it did not allege that the defendant had any knowledge of a kickback -- a fundamental element of the scheme. The court found that deficiency fatal to the charge. Here, as discussed above, the Indictment alleges that Levine misused his office in furtherance of the alleged scheme. In contrast to Hurtgen, the Indictment sufficiently alleges an offense under the mail and wire fraud statutes.
(b) Private Gain
Rezko also reads Bloom to create an additional element for an honest services offense -- that the defendant personally gained from the transaction.*fn4 Specifically, Rezko argues that because "Levine is not alleged to have gained or stood to have gained, anything from [the Investment Firm One] transaction" that the Indictment fails to support an honest services charge. The test, however, is not whether an individual personally gained, but rather whether a participant realized a private gain. See United States v. Spano 421 F.3d 599, 603 (7th Cir. 2005) (holding that "a participant in a scheme to defraud is guilty even if he is an altruist and all the benefits of the fraud accrue to other participants."). The Indictment alleges that Levine's associates -- Rezko, "Individual C" and "Individual D" -- received portions of the "finders fee" associated with the Investment Firm One transactions. (R. 96-1, Sup. Indict., ¶¶ 6 (a)-(k).) These allegations sufficiently allege "private gain" under § 1346.
United States v. Thompson does not provide otherwise. In Thompson, the Seventh Circuit overturned a state employee's conviction under § 1346 where a jury had convicted the employee of steering a contract to a particular bidder in exchange for a pay raise. 484 F.3d at 882-884. The employee was a state procurement officer who steered a contract to a low bidder who had made political contributions to the governor, despite the fact that other bidders had been rated higher in the contract selection process. The government in Thompson asserted that the "private gain" was a $1,000 annual salary increase and increased job security for Thompson by pleasing her supervisors with the contract selection. The Seventh Circuit overturned the conviction holding that the employee received no "private gain" from the transaction, because "neither an increase in salary for doing what one's superiors deem a good job nor an addition to one's peace of mind" is the type of "private gain" to which Bloom refers. Id. at 884. As the Seventh Circuit noted, "[i]t would stretch the ordinary understanding of language, however, to call a public employee's regular compensation, approved through above-board channels, a kind of 'private gain.'" Id. In determining that a pay raise is not a "private gain" under § 1346, Thompson discusses the "private gains" which are cognizable,including the types of "pay-offs outside proper channels" alleged in the Indictment. Id. ("The history of honest-services prosecutions is one in which the 'private gain' comes from third parties who suborn the employee with side payments, often derived via kickbacks skimmed from a public contract."); see also Segal, 495 F.3d 826 at 835.
Rezko also asks the Court to "carefully scrutinize" the allegations because they are "based almost exclusively on the fruits of Levine's cooperation." The law is clear, however, that the Court must view all allegations in the light most favorable to the Government and not make any credibility determinations at this stage. Given that Counts One and Two state the elements of the charged offenses, the Indictment is sufficient, and the Court denies Defendant's motion to dismiss these counts. United States v. Sandoval, 347 F.3d 627, 633 (7th Cir. 2003). The Court also denies Defendant's motion to dismiss Counts Twenty-Three and Twenty-Four which are based solely on the proceeds of the fraud alleged in Counts One and Two.
2. Count Seventeen
In a related motion, Defendant Rezko seeks dismissal of Count Seventeen, which alleges that he aided and abetted co-defendant Levine's violation of 18 U.S.C. § 666(a)(1)(B). Count Seventeen relates to the same Investment Firm One transactions discussed above. Rezko argues that the allegations in Count Seventeen are both insufficient and "belied" by the allegations in Count One. Both arguments fail. Count Seventeen satisfies the requirements of an indictment -- it states the elements of 18 U.S.C. § 666(a)(1)(B) and informs Rezko of the nature of the charges. See Anderson, 280 F.3d at 1124. Although Rezko argues that Count One somehow undermines Count Seventeen, he fails to cite even one example to support this argument. Viewed in the light most favorable to the Government, the allegations in Counts One and Seventeen are consistent, and therefore Rezko's motion to dismiss Count Seventeen is denied.
III. Motion to Strike State Statutes and Guidelines From the Indictment
A. Legal Standard for Motions To Strike
Federal Rule of Criminal Procedure 7(d) governs motions to "strike surplusage from the indictment or information." The Advisory Committee Notes to subdivision (d) explain that the "rule introduces a means of protecting the defendant against immaterial or irrelevant allegations in an indictment or information, which may, however, be prejudicial." Fed. R. Crim. P. 7(d), advisory committee's note. A district court may strike "immaterial, irrelevant, or prejudicial" language from an indictment, Marshall, 985 F.2d at 905, "only if the targeted allegations are clearly not relevant to the charge and are inflammatory and prejudicial." See United States v. Levine, No. 05 CR 691, 2005 WL 3597707, at *2 (N.D. Ill., Dec. 29, 2005); United States v. Andrews, 749 F.Supp. 1517, 1518 (N.D. III. 1990). "[L]egally relevant information is not surplusage and due to the exacting standard, motions to strike information as surplusage are rarely granted." Black, 469 F. Supp. 2d at 518 (quoting United States v. Bucey, 691 F. Supp. 1077, 1081 (N.D. Ill. 1988)).
B. Defendant Rezko's Argument
Rezko seeks to strike portions of the Indictment that discuss Illinois law. In particular, Rezko takes issue with references in Count One to two Illinois ethical guidelines and the Illinois criminal bribery and official misconduct statutes. The Government contends that the ethical guidelines and criminal statutes are relevant because they help define the scope of Defendant Levine's duty of honest services under § 1346.
Many courts, including this one, have looked to state laws in defining the scope of duties under § 1346. See United States v. Warner, Nos. 06-3517, 06-3528,_ F.3d _, 2007 WL 2363220 at *27 (7th Cir. Aug. 21, 2007); Hausmann, 345 F.3d at 956; Levine, 2005 WL 3597707, at *3; Black, 469 F. Supp. 2d at 534 (citing cases). Rezko, however, relies on United States v. Bloom to argue that state laws are irrelevant to the scope of duties owed by a defendant under § 1346. Rezko's reliance on Bloom, however, is belied by a recent Seventh Circuit decision which clarified that "Bloom makes clear that state laws are useful for defining the scope of fiduciary duties" under § 1346. Segal, 495 F.3d at 834. Accordingly, state laws may be "legally relevant" to determining a defendant's § 1346 duties.
The Court already determined that the two criminal statutes and the Ethics Act referenced in the Indictment are relevant to defining Defendant Levine's duties under § 1346. Levine, 2005 WL 3597707, at *3. Defendant Rezko does not provide any basis for the Court to revisit this ruling. Similarly, those laws are relevant to determining whether Rezko aided Levine in breaching those duties. Further, the Planning Board's Ethical Guidelines are also relevant to determining whether Rezko aided Levine in breaching his duties owed to that Board.
Finally, the state law references in the Indictment will not prejudice Rezko. The Court can address any potential prejudice or jury confusion arising from the inclusion of these state laws in the Indictment in its instructions to the jury. See Segal, 495 F.3d at 835 (upholding district court's use of jury instructions explaining that state laws were to be used for "determining the existence, the scope and the nature of defendants' legal and fiduciary duties in this case").
Rezko's reliance on two decisions from other circuits to support striking the state law references from the Indictment fails. Rezko first cites United States v. Sawyer, 85 F.3d 713 (1st Cir. 1996) for the proposition that a jury may be prejudiced by the Government's references to state laws. In Sawyer, the Fifth Circuit reversed a defendant's conviction under § 1346 because the trial court improperly instructed the jury that a violation of the state law was an ipso facto violation of § 1346. Sawyer, 85 F.3d at 728. Far from holding that reference to state law was improper, the Fifth Circuit in Sawyer noted that the prejudice from the faulty jury instruction could have been avoided with a proper instruction. Id. at 729.
Rezko also relies on a Fifth Circuit decision, United States v. Brumley, 116 F.3d 728 (5th Cir. 1997). That decision, however, expressly approves the lower court's reliance on Texas law to shape the duties under § 1346. See 116 F.3d at 735.
IV. Constitutionality of 18 U.S.C. § 1346
A party may raise a vagueness challenge by arguing either that a statute is vague as applied to the case, or that a statute is void on its face. Rezko challenges the constitutionality of the honest services prong of the mail and wire fraud statutes on both grounds. The Court has already rejected similar arguments when considering Defendant Levine's motion to dismiss the Original Indictment in this case. See Levine, No. 2005 WL 3597707, at *4.
Where a statute does not implicate First Amendment interests, as is the case here, a court generally "must uphold a facial challenge only if the enactment is impermissibly vague in all of its applications." Fuller v. Decatur Public School Bd. of Educ. School Dist. 61, 251 F.3d 662, 667 (7th Cir. 2001) (quotations omitted). Numerous courts, including this one, have found § 1346 constitutional on its face. See Warner, 2007 WL 2363220 at *26 (Section 1346 is not unconstitutional on its face); Rybicki, 354 F.3d at 143 (same); United States v. Frost, 125 F.3d 346, 371 (6th Cir.1997) (same); Black, 469 F. Supp. 2d at 531 n.10 (same); Levine, 2005 WL 3597707, at *4 (same). Rezko has failed to cite any authority holding that § 1346 is unconstitutionally vague on its face, and the Court declines to reverse its prior holding.
Rezko next argues that § 1346 is unconstitutional as applied, because it failed to put him on notice that his conduct could result in criminal liability. In Hausmann, the Seventh Circuit rejected an as applied vagueness challenge under § 1346, holding that "the mail and wire fraud statutes, 18 U.S.C. §§ 1341, 1343, and 1346, are not unconstitutionally vague as applied under the intangible-rights theory to a kickback scheme enabled by the offender's misuse of his fiduciary position..." 345 F.3d at 958; see also Warner, 2007 WL 2363220 at *26-27. In Hausmann, the Seventh Circuit held that its decision in Bloom placed the defendant "on notice that criminal liability under the mail and wire fraud statutes -- particularly under an intangible-rights theory -- attaches to the misuse of one's fiduciary position for personal gain." Hausmann, 345 F.3d at 957. Here, the Indictment charges Rezko with participating in Levine's abuses of his fiduciary positions through the use of kickbacks and bribery. Given Bloom and Hausmann, Rezko was on notice at least as early as 1998 that aiding and abetting a fiduciary to abuse his position for personal gain risks criminal liability. Id. at 957-58; Levine, 2005 WL 3597707, at *4. Accordingly, Rezko's as-applied challenge fails.
For these reasons, the Court denies Defendant's motion to dismiss and denies in part and grants in part Defendant's motion to strike.
AMY J. ST. EVE United States District Court Judge
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decided: July 6, 1976.
COMMONWEALTH OF PENNSYLVANIA, APPELLEE,v.EDWARD RYDER, APPELLANT (TWO CASES)
Chas. Lowenthal, Philadelphia, for appellant.
F. Emmett Fitzpatrick, Dist. Atty., Steven H. Goldblatt, Asst. Dist. Atty., Chief, Appeals Div., James Wilson, Philadelphia, for appellee.
Jones, C. J., and Eagen, O'Brien, Roberts, Pomeroy, Nix and Manderino, JJ. Nix and Manderino, JJ., concur in the result.
[ 467 Pa. Page 485]
Appellant, Edward Ryder, was convicted by a jury of murder of the first degree and conspiracy to murder. Motions for a new trial and in arrest of judgment were filed and denied. Ryder was sentenced to life imprisonment on the murder conviction and given a suspended sentence on the conspiracy conviction. An appeal was filed in the Superior Court from the judgment of sentence imposed on the conspiracy conviction and later certified to this Court for disposition with the direct appeal
[ 467 Pa. Page 486]
filed in this Court from the judgment of sentence imposed on the murder conviction.
The facts established by the Commonwealth's evidence at trial are as follows. On August 15, 1973, Ryder and one Samuel Molten, inmates in the Holmesburg Prison in Philadelphia, had an animated argument over religion. It was necessary for prison guards to intervene in order to prevent Ryder from carrying out a threat to throw Molten off a balcony. Ryder attended a meeting the following evening, August 16, conducted by the hierarchy of the cellblock's Black Muslim chapter, that is, Theodore Brown, Kenneth Covil, and Michael Grant, at which the leader of the chapter, Brown, stated that if anyone disagreed with their religious tenets that person "would be taken care of." Subsequently that evening, two members of the hierarchy, Grant and Covil, were seen in their cells sharpening a metal rod. The following day, August 17, Ryder, Grant, Covil and Brown were seen approaching Molten's cell. Covil warned another inmate in the area to leave saying that they were preparing to kill someone and they did not want any witnesses. At the time Ryder had a shirt draped over his arm. Immediately thereafter, the sounds of a scuffle and heavy breathing were heard emanating from Molten's cell while Covil stood outside. Ryder, now emptyhanded, together with Grant and Brown, joined Covil and the four were seen running down the cellblock corridor. As they passed one of the other inmates, Covil said, "You didn't see anything." Molten was found dead in his cell within the next few minutes and a search of the cell revealed a sharpened metal rod, which the medical examiner testified was consistent with the multiple stab wounds which were the cause of Molten's death. A blue prison shirt was also found hidden in a bucket.
Appellant asserts several errors in the trial process. However, after a study of the record and the briefs, we conclude appellant's contentions are without merit and
[ 467 Pa. Page 487]
only one requires discussion here.*fn1 It is contended the trial judge, on several occasions, made unnecessary statements in the presence of the jury which indicated bias against the appellant and his counsel and which deprived the appellant of his right to a fair trial. We are not so persuaded.
Initially, we note that in none of the trial incidents now complained of did appellant move for a mistrial. More importantly, a reading of the record clearly manifests that the statements of the trial judge, which appellant argues prejudiced him and his counsel with the jury, constituted legitimate efforts on the part of the judge to have appellant's counsel cease dilatory and distracting tactics.
Not every unnecessary comment made in a trial requires a new trial. As this Court said in Commonwealth v. Goosby, 450 Pa. 609, 611, 301 A.2d 673, 674 (1975):
"'Every unwise or irrelevant remark made in the course of a trial by a judge, a witness, or counsel does not compel the granting of a new trial. A new trial is required when the remark is prejudicial; that is, when it is of such a nature or substance or delivered in such a manner that it may reasonably be said to have deprived the defendant of a fair and impartial trial.'" [Citations omitted.] [Emphasis in original.]
Accordingly, we must evaluate the challenged statements of the trial judge in the instant case with a view to determining if the defendant was deprived of a fair trial.
Specifically, four of the five statements of the trial judge, brought to our attention in the instant appeal,
[ 467 Pa. Page 488]
focus directly on the trial judge's response to counsel's repetitious and dilatory tactics.*fn2 In each of these four instances, the trial judge, in our view, was legitimately exercising his discretion to expedite the trial and performing his duty to focus the proceeding on the issues presented by the case. See Commonwealth v. Evancho, 379 Pa. 273, 108 A.2d 719 (1954); Commonwealth v. Woods, 366 Pa. 618, 79 A.2d 408 (1951). This in no sense deprived the appellant of a fair trial. It should also be noted the trial of this case consumed fifteen days during which defense counsel, at sidebar conference, admitted that he employed, as a matter of course, the tactic of asking irrelevant and knowingly objectionable questions.*fn3 Since from a reading of the record, we are
[ 467 Pa. Page 489]
convinced that the trial judge afforded defense counsel every reasonable latitude in cross-examination and in the face of counsel's admission of employing dilatory tactics, we can find no error in the court's comments aimed at restraining these unwarranted practices by defense counsel.
Additionally, appellant directs our attention to one other comment made by the trial judge in the presence of the jury for separate consideration. During the direct examination of prison guard, Taylor, the witness testified that many of the inmates were in the corridor "talking, hollering, playing cards, things like that." Defense Counsel asked the witness, "Can you give us a demonstration of how loud the noise was?" The assistant district attorney immediately objected. The following then ensued:
"The Court: Let's bring in -- what was it, half a dozen prisoners that you said [sic]? Can you reconstruct it? Do you have a recording machine with you to give us an idea of what noises there were? It is a ridiculous question.
"Defense Counsel: Do you understand what the judge is asking you?
[ 467 Pa. Page 490]
"The Court: You asked that ridiculous question. The objection is sustained."
Although the court went further than necessary in ruling on the objection, see Canon 15, Canon of Judicial Ethics, particularly in labeling the question "ridiculous," this is not the type of comment which would prejudice a defendant to the point of depriving him of a fair trial. This is not a case where the court lectured defense counsel, see Commonwealth v. Horvath, 446 Pa. 11, 285 A.2d 185 (1971), or where the court threatened counsel in the presence of the jury, Commonwealth v. Stallone, 281 Pa. 41, 126 A. 56 (1924).
With the knowledge that this trial consumed fifteen days, which, by his own admission defense counsel unnecessarily prolonged, the complained of comments do not warrant a new trial. This is particularly so because we are convinced after a careful study of the entire record that the appellant received a fair trial. The trial judge gave every possible consideration to defense counsel and exercised patience throughout the long trial.*fn4 The record discloses no conduct or utterances on the part of the trial judge which would in any way prejudice the appellant or his counsel in the eyes of the jury.*fn5
Judgments of sentence affirmed.
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