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June 2, 2009
PERRY SATCHELL, PETITIONER,v.D.K. SISTO, WARDEN, RESPONDENT.
Petitioner Perry Satchell is currently incarcerated at the California State Prison, Solano in Vacaville, California. He was convicted by a jury of second degree murder with a firearm enhancement in Los Angeles County Superior Court in May 1991, and sentenced to 20-years-to-life with the possibility of parole. He has filed a petition for writ of habeas corpus, together with relevant portions of the state court record, under 28 U.S.C. § 2254 challenging his 2006 denial of parole by the Board of Parole Hearings of the State of California (the "Board").*fn1 (See Docket 7, Part 1 at 1-33.)*fn2 Respondent has filed an answer to the petition, and petitioner has filed a reply to the answer. (See Dkt. 12; Dkt. 15.) The briefing is now complete and this matter is ripe for review. The Court, having thoroughly reviewed the record and briefing of the parties, recommends the Court deny the petition, and dismiss this action with prejudice.
The Los Angeles County Superior Court set forth the following relevant facts: The record reflects that on May 5, 1990, the Petitioner was in his bedroom when he heard noise outside and guessed that the victim, Reginald Carter, was fighting with someone. He armed himself with a gun and went out to the other room. The Petitioner discovered that there was no fight, but began to argue with Mr. Carter, because he had invited someone in who the Petitioner had previously argued with. At some point during the argument, Mr. Carter and the other man struggled with the Petitioner to get the gun. During the struggle, the gun discharged and fired at the ceiling. The victim then jumped back and the Petitioner shot him in the neck, killing him. The Petitioner claims that he shot the victim in self-defense, because he was afraid the victim was going to use the gun on him if he was able to get it. (Dkt. 7, Part 1 at 36.) In addition, the Board noted during the hearing that petitioner's girlfriend, who was also the victim's sister, had taken her two children into the kitchen during the altercation. (See id., Part 2 at 91-92.) After the shooting, petitioner walked into the kitchen while holding his gun, and looked at her for approximately one minute before leaving the house. (See id. at 92.)
The commitment offense occurred on May 5, 1990, when petitioner was thirty-two years old. He was incarcerated two days after the incident, and subsequently convicted by a jury of second degree murder with a firearm enhancement in Los Angeles County Superior Court. Petitioner was sentenced to 20-years-to-life with the possibility of parole, and his minimum eligible parole date was set for March 17, 2003. (See id., Part 1 at 36.) The parole denial which is the subject of this petition took place after a parole hearing held on November 7, 2006. This was petitioner's first subsequent parole consideration hearing, as his initial application for parole in 2002 was denied for three years. (See id. at 7.) As of the date of the 2006 parole hearing, petitioner was forty-nine years of age, and had been in custody for approximately sixteen years.
After denial of his 2006 application, petitioner filed habeas corpus petitions in the Los Angeles County Superior Court, California Court of Appeal, and California Supreme Court. (See Dkt. 12, Ex. A at 2-21; id., Ex. C, Part 1 at 2-45; and id., Ex. E at 2-23.) Those petitions were unsuccessful. (See Dkt. 7, Part 1 at 34-38.) This federal habeas petition followed. Petitioner contends his 2006 denial by the Board violated his Fifth and Fourteenth Amendment Due Process rights. Thus, petitioner does not challenge the validity of his conviction, but instead challenges the Board's 2006 decision finding him unsuitable for parole.
The Anti-Terrorism and Effective Death Penalty Act of 1996 ("AEDPA") governs this petition because it was filed after the enactment of AEDPA. See Lindh v. Murphy, 521 U.S. 320, 326-27 (1997). Because petitioner is in custody of the California Department of Corrections pursuant to a state court judgment, 28 U.S.C. § 2254 provides the exclusive vehicle for his habeas petition. See White v. Lambert, 370 F.3d 1002, 1009-10 (9th Cir.), cert. denied, 543 U.S. 991 (2004) (providing that § 2254 is "the exclusive vehicle for a habeas petition by a state prisoner in custody pursuant to a state court judgment, even when the petitioner is not challenging his underlying state court conviction."). Under AEDPA, a habeas petition may not be granted with respect to any claim adjudicated on the merits in state court unless petitioner demonstrates that the highest state court decision rejecting his petition was either "contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court of the United States," or "was based on an unreasonable determination of the facts in light of the evidence presented in the State court proceeding." 28 U.S.C. § 2254(d)(1) and (2).
As a threshold matter, this Court must ascertain whether relevant federal law was "clearly established" at the time of the state court's decision. To make this determination, the Court may only consider the holdings, as opposed to dicta, of the United States Supreme Court. See Williams v. Taylor, 529 U.S. 362, 412 (2000). In this context, Ninth Circuit precedent remains persuasive but not binding authority. See id. at 412-13; Clark v. Murphy, 331 F.3d 1062, 1069 (9th Cir. 2003).
The Court must then determine whether the state court's decision was "contrary to, or involved an unreasonable application of, clearly established Federal law." See Lockyer v. Andrade, 538 U.S. 63, 71 (2003). "Under the 'contrary to' clause, a federal habeas court may grant the writ if the state court arrives at a conclusion opposite to that reached by [the Supreme] Court on a question of law or if the state court decides a case differently than [the] Court has on a set of materially indistinguishable facts." Williams, 529 U.S. at 412-13. "Under the 'unreasonable application' clause, a federal habeas court may grant the writ if the state court identifies the correct governing legal principle from [the] Court's decisions but unreasonably applies that principle to the facts of the prisoner's case." Id. at 413. At all times, a federal habeas court must keep in mind that it "may not issue the writ simply because [it] concludes in its independent judgment that the relevant state-court decision applied clearly established federal law erroneously or incorrectly. Rather that application must also be [objectively] unreasonable." Id. at 411.
In each case, the petitioner has the burden of establishing that the state court decision was contrary to, or involved an unreasonable application of, clearly established federal law. See 28 U.S.C. § 2254; Baylor v. Estelle, 94 F.3d 1321, 1325 (9th Cir. 1996). To determine whether the petitioner has met this burden, a federal habeas court looks to the last reasoned state court decision because subsequent unexplained orders upholding that judgment are presumed to rest upon the same ground. See Ylst v. Nunnemaker, 501 U.S. 797, 803-04 (1991); Medley v. Runnels, 506 F.3d 857, 862 (9th Cir. 2007).
Finally, AEDPA requires federal courts to give considerable deference to state court decisions, and state courts' factual findings are presumed correct. See 28 U.S.C. § 2254(e)(1). Federal courts are also bound by a state's interpretation of its own laws. See Murtishaw v. Woodford, 255 F.3d 926, 964 (9th Cir. 2001) (citing Powell v. Ducharme, 998 F.2d 710, 713 (9th Cir. 1993)).
A. Due Process Right to be Released on Parole
Under the Fifth and Fourteenth Amendments to the United States Constitution, the government is prohibited from depriving an inmate of life, liberty or property without the due process of law. U.S. Const. amends. V, XIV. A prisoner's due process claim must be analyzed in two steps: the first asks whether the state has interfered with a constitutionally protected liberty or property interest of the prisoner, and the second asks whether the procedures accompanying that interference were constitutionally sufficient. Ky. Dep't of Corrs. v. Thompson, 490 U.S. 454, 460 (1989); Sass v. Cal. Bd. of Prison Terms, 461 F.3d 1123, 1127 (9th Cir. 2006).
Accordingly, our first inquiry is whether petitioner has a constitutionally protected liberty interest in parole. The Supreme Court articulated the governing rule in this area in Greenholtz v. Inmates of Neb. Penal, 442 U.S. 1 (1979), and Board of Pardons v. Allen, 482 U.S. 369 (1987). See McQuillion v. Duncan, 306 F.3d 895, 902 (9th Cir. 2002) (applying "the 'clearly established' framework of Greenholtz and Allen" to California's parole scheme). The Court in Greenholtz determined that although there is no constitutional right to be conditionally released on parole, if a state's statutory scheme employs mandatory language that creates a presumption that parole release will be granted if certain designated findings are made, the statute gives rise to a constitutional liberty interest. See Greenholtz, 442 U.S. at 7, 12; Allen, 482 U.S. at 377-78.
As discussed infra, California statutes and regulations afford a prisoner serving an indeterminate life sentence an expectation of parole unless, in the judgment of the parole authority, he "will pose an unreasonable risk of danger to society if released from prison." Title 15 Cal. Code Regs., § 2402(a). The Ninth Circuit has therefore held that "California's parole scheme gives rise to a cognizable liberty interest in release on parole." McQuillion, 306 F.3d at 902. To similar effect, Irons v. Carey, 505 F.3d 846, 850 (9th Cir. 2007) held that California Penal Code § 3041 vests all "prisoners whose sentences provide for the possibility of parole with a constitutionally protected liberty interest in the receipt of a parole release date, a liberty interest that is protected by the procedural safeguards of the Due Process Clause." This "liberty interest is created, not upon the grant of a parole date, but upon the incarceration of the inmate." Biggs v. Terhune, 334 F.3d 910, 915 (2003). See also Sass, 461 F.3d at 1127.
Because the Board's denial of parole interfered with petitioner's constitutionally- protected liberty interest, this Court must proceed to the second step in the procedural due process analysis and determine whether the procedures accompanying that interference were constitutionally sufficient. "[T]he Supreme Court [has] clearly established that a parole board's decision deprives a prisoner of due process with respect to this interest if the board's decision is not supported by 'some evidence in the record.'" Irons, 505 F.3d at 851 (citing Superintendent v. Hill, 472 U.S. 445, 457 (1985) (holding the "some evidence" standard applies in prison disciplinary proceedings)). The "some evidence" standard requires this Court to determine "whether there is any evidence in the record that could support the conclusion reached by the disciplinary board." Hill, 472 U.S. at 455-56. Although Hill involved the accumulation of good time credits rather than release on parole, later cases have held that the same constitutional principles apply in the parole context because both situations directly affect the duration of the prison term. See e.g., Jancsek v. Or. Bd. of Parole, 833 F.2d 1389, 1390 (9th Cir. 1987) (adopting the "some evidence" standard set forth by the Supreme Court in Hill in the parole context); accord, Sass, 461 F.3d at 1128-29); Biggs, 334 F.3d at 915; McQuillion, 306 F.3d at 904.
"The fundamental fairness guaranteed by the Due Process Clause does not require courts to set aside decisions of prison administrators that have some basis in fact," however. Hill, 472 U.S. at 456. Similarly, the "some evidence" standard is not an invitation to examine the entire record, independently assess witnesses' credibility, or re-weigh the evidence. Id. at 455. Instead, it is there to ensure that an inmate's loss of parole was not arbitrarily imposed. See id. at 454. The Court in Hill added an exclamation point to the limited scope of federal habeas review when it upheld the finding of the prison administrators despite the Court's characterization of the supporting evidence as "meager." See id. at 457.
B. California's Statutory and Regulatory Scheme
In order to determine whether "some evidence" supported the Board's decision with respect to petitioner, this Court must consider the California statutes and regulations that govern the Board's decision-making. See Biggs, 334 F.3d at 915. Under California law, the Board is authorized to set release dates and grant parole for inmates with indeterminate sentences. See Cal. Penal Code § 3040 and 5075, et seq. Section 3041(a) requires the Board to meet with each inmate one year before the expiration of his minimum sentence and normally set a release date in a manner that will provide uniform terms for offenses of similar gravity and magnitude with respect to their threat to the public, as well as comply with applicable sentencing rules. Subsection (b) of this section requires that the Board set a release date "unless it determines that the gravity of current convicted offense or offenses, or the timing and gravity of current or past convicted offense or offenses, is such that consideration of the public safety requires a more lengthy period of incarceration." Id., § 3041(b). Pursuant to the mandate of § 3041(a), the Board must "establish criteria for the setting of parole release dates" which take into account the number of victims of the offense as well as other factors in mitigation or aggravation of the crime. The Board has therefore promulgated regulations setting forth the guidelines it must follow when determining parole suitability. See 15 CCR § 2402, et seq.
Accordingly, the Board is guided by the following regulations in making a determination whether a prisoner is suitable for parole:
(a) General. The panel shall first determine whether the life prisoner is suitable for release on parole. Regardless of the length of time served, a life prisoner shall be found unsuitable for and denied parole if in the judgment of the panel the prisoner will pose an unreasonable risk of danger to society if released from prison.
(b) Information Considered. All relevant, reliable information available to the panel shall be considered in determining suitability for parole. Such information shall include the circumstances of the prisoner's social history; past and present mental state; past criminal history, including involvement in other criminal misconduct which is reliably documented; the base and other commitment offenses, including behavior before, during and after the crime; past and present attitude toward the crime; any conditions of treatment or control, including the use of special conditions under which the prisoner may safely be released to the community; and any other information which bears on the prisoner's suitability for release. Circumstances which taken alone may not firmly establish unsuitability for parole may contribute to a pattern which results in a finding of unsuitability.
15 CCR § 2402(a) and (b). Subsections (c) and (d) also set forth suitability and unsuitability factors to further assist the Board in analyzing whether an inmate should be granted parole, although "the importance attached to any circumstance or combination of circumstances in a particular case is left to the judgment of the panel." 15 CCR § 2402(c).
In examining its own statutory and regulatory framework, the California Supreme Court in In re Lawrence recently held that the proper inquiry for a reviewing court is "whether some evidence supports the decision of the Board . that the inmate constitutes a current threat to public safety, and not merely whether some evidence confirms the existence of certain factual findings." In re Lawrence, 44 Cal.4th 1181, 1212 (2008). The court also asserted that the Board's decision must demonstrate "an individualized consideration of the specified criteria, but "[i]t is not the existence or nonexistence of suitability or unsuitability factors that forms the crux of the parole decision; the significant circumstance is how those factors interrelate to support a conclusion of current dangerousness to the public." Id. at 1204-05, 1212. As long as the evidence underlying the Board's decision has "some indicia of reliability," parole has not been arbitrarily denied. See Jancsek, 833 F.2d at 1390. As the California courts have continually noted, the Board's discretion in parole release matters is very broad. See Lawrence, 44 Cal.4th at 1204. Thus, the penal code, corresponding regulations, and California law clearly establish that the fundamental consideration in parole decisions is public safety and an assessment of a prisoner's current dangerousness. See id.,at 1205-06.
C. Summary of Governing Principles
By virtue of California law, petitioner has a constitutional liberty interest in release on parole. The parole authorities may decline to set a parole date only upon a finding that petitioner's release would present an unreasonable present risk of danger to society if he is released from prison. Where the parole authorities deny release, based upon an adverse finding on that issue, the role of a federal habeas court is narrowly limited. It must deny relief if there is "some evidence" in the record to support the parole authority's finding of present dangerousness. The penal code, corresponding regulations, and California law clearly support the foregoing interpretation.
Petitioner contends that the Board violated his state and federal due process rights by finding him unsuitable for parole without any evidence that he poses an unreasonable risk of danger to society if released from prison.*fn3 (See Dkt. 7, Part 1 at 9-33.) Specifically, petitioner claims that the Board found him unsuitable based upon the immutable facts of the commitment offense. (See id. at 24-27.) In addition, petitioner argues the Board failed to consider or give appropriate weight to evidence suggesting that petitioner was suitable for parole. (See id. at 31-32.) Although petitioner cites the United States Court of Appeals for the Ninth Circuit's decision in Hayward v. Marshall as support for his petition, the panel decision in that case has been withdrawn and the case is currently being reheard en banc by that court. As a result, the panel decision cannot be cited as precedent. See 512 F.3d 536 (9th Cir. 2008), reh'g en banc granted, 527 F.3d 797 (9th Cir. 2008) (providing that "the three-judge panel opinion shall not be cited as precedent by or to any court of the Ninth Circuit."). (See also Dkt. 7, Part 1 at 24, 27-30.)
Respondent claims that petitioner does not have a constitutionally protected liberty interest in being released on parole, that the "some evidence" standard is inapplicable in this context, and that even if he does have a protected liberty interest, the Board adequately predicated its denial of parole on "some evidence." (See Dkt. 12 at 2-3, and 6-8.) Accordingly, respondent argues that petitioner's due process rights were not violated by the Board's 2006 decision, and the Los Angeles County Superior Court's Order upholding the Board's 2006 parole denial was not an unreasonable application of clearly established federal law. (See id. at 4, and 7-8.)
A. Analysis
The Board based its decision that petitioner was unsuitable for parole primarily upon his commitment offense, as well as petitioner's past criminal history, escalating pattern of criminal conduct, institutional behavior, failure to demonstrate adequate insight regarding the commitment offense, insufficient documentation of participation in self-help programming, and the psychological report's failure to provide an assessment of petitioner's ability to function within the community, if released. (See Dkt. 7, Part 2 at 91-95.) See also 15 CCR § 2402(c)(1) (providing that a commitment offense carried out "in an especially heinous, atrocious, or cruel manner" constitutes a factor tending to indicate unsuitability for parole); 15 CCR § 2402(b) (requiring the Board to consider a prisoner's "past criminal history, including involvement in other criminal misconduct which is reliably documented," "the base and other commitment offenses, including behavior before, during, or after the crime," "past and present attitude toward the crime," as well as "any other information which bears on the prisoner's suitability for release"); 15 CCR § 2402(c)(6) (providing that "serious misconduct" committed in prison or in jail constitutes a factor tending to indicate unsuitability for parole). After considering all reliable evidence in the record, the Board concluded that evidence of petitioner's positive behavior in prison did not outweigh evidence of his unsuitability for parole. (See Dkt. 7, Part 2 at 94.)
With regard to the circumstances of the commitment offense, the Board concluded that the offense was carried out in an especially heinous, atrocious, or cruel manner. (See id. at 91.) See also 15 CCR § 2402(c)(1). Petitioner armed himself with a handgun, and engaged in an altercation with his unarmed victim. (See Dkt. 7, Part 2 at 91.) When the victim and another individual attempted to take the gun from petitioner, the gun discharged at the ceiling. (See id.,Part 1 at 36.) Although the victim jumped back, petitioner fired a second shot at the victim at a close range, hitting him in the neck and killing him. (See id., Part 2 at 91.) Petitioner then followed his girlfriend, who had fled to the kitchen with her two children to avoid the fight, and looked at her for about a minute while continuing to hold his gun in his hands. (See id. at 90, and 98.)
Because the jury, by its verdict, found petitioner did not kill the victim in self-defense, this provided some evidence to support the Board's conclusion that the murder was carried out in a dispassionate and calculated manner, as well as a manner which demonstrates an exceptionally callous disregard for human suffering. (See id. at 91, and 95.) See also 15 CCR § 2402(c)(1)(B) and (D). The Board also concluded that the motive for the crime was inexplicable or very trivial in relation to the offense, because there were opportunities for petitioner to walk away from the fight. (See Dkt. 7, Part 2 at 97.) See also 15 CCR § 2402(c)(1)(E). He chose instead to resort to violence, even though his girlfriend, who was the victim's sister, and her two children were also in the house. (See Dkt. 7, Part 2 at 97-98.) The evidence of the circumstances surrounding petitioner's commitment offense and the trivial motive therefore provide some evidence to support the Board's finding that the murder was carried out in an especially heinous, atrocious, or cruel manner.
In conjunction with this claim, petitioner requests that this Court take judicial notice of several superior court orders in unrelated habeas cases because they contain statistical evidence concerning the Board's reliance upon the commitment offense unsuitability factor to deny parole in other cases. (See Dkt. 7, Part 1 at 26-27.) See also Fed. R. Evid. 201(b)(2) (permitting the court to take judicial notice of a fact that is "not subject to reasonable dispute in that it is . (2) capable of accurate and ready determination by resort to sources whose accuracy cannot reasonably be questioned."). Petitioner does not provide the Court with these state court orders, however. Petitioner also fails to explain how the orders, even if construed by the Court as supplemental briefing, are relevant to this Court's determination of whether there is some evidence to support the Board's finding that the commitment offense in this case was carried out in an especially heinous, atrocious, or cruel manner by petitioner. Judicial notice of unrelated state court orders is therefore inappropriate. The Board's findings regarding petitioner's offense were based upon an "individualized consideration of the specified criteria," and were amply supported by evidence in the record. See Lawrence, 44 Cal.4th at 1212.
The second and third factors relied upon by the Board were petitioner's past criminal history and escalating pattern of criminal conduct. (See Dkt. 7, Part 2 at 92.) The applicable guidelines direct the Board to consider "a prisoner's past criminal history, including involvement in other criminal misconduct which is reliably documented," and "behavior before, during, and after [the base and other commitment offenses]." See 15 CCR § 2402(b). Petitioner challenges the Board's consideration of his prior arrests for purchasing a gun that had been stolen from the New York Treasury Department, and an assault with a deadly weapon for backing a vehicle, the deadly weapon, into a fence and causing a gate to fall on someone, because he was not ultimately convicted of those offenses. In support of his argument, petitioner cites § 2326 of Title 15 of the California Code of Regulations. (See Dkt. 7, Part 1 at 16.) But that section relates to the selection of parole dates, not the determination of suitability for parole. In contrast, the California Court of Appeal has approved the consideration of arrests (without convictions) in determining suitability for parole. See In re Gilbert Fuentes, 37 Cal.Rptr.3d 426, 433-34 (Cal. Ct. App. 2005). As a result, the Board properly considered petitioner's previous arrests, as well as his prior misdemeanor conviction for carrying a concealed weapon. (See Dkt. 7, Part 2 at 24.) Petitioner's prior misdemeanor conviction and arrests provide some evidence to support the Board's finding that petitioner has a past criminal history, and has demonstrated an escalating pattern of criminal conduct which culminated in the commitment offense.
The fourth factor relied upon by the Board was petitioner's institutional behavior. (See id. at 92-93.) See also 15 CCR § 2402(c)(6) (providing that serious misconduct in prison or jail constitutes a factor indicating unsuitability for parole). Specifically, the Board noted that since his incarceration, petitioner has received seven 128A chronos and three 115 reports for disciplinary violations. (See Dkt. 7, Part 2 at 30-32, and 92-94.) Petitioner's most serious disciplinary violation was a 115 report received on October 22, 1995, for threatening force and violence against a new cellmate because petitioner objected to his sexual orientation. (See id. at 31-32.) Petitioner's most recent disciplinary violation occurred in 2002 when he failed to obtain permission to keep onions grown by inmates for donation to food banks.*fn4
(See id. at 30-31.) Petitioner's disciplinary violations in prison provide some evidence to support the Board's finding that petitioner's institutional behavior constitutes a factor indicating unsuitability for parole.
The fifth and sixth factors relied upon by the Board were petitioner's failure to demonstrate adequate insight regarding the commitment offense, and insufficient documentation of his participation in self-help programming in prison. (See id. at 92-93.) The Board is required to consider a petitioner's "past and present attitude toward the crime." See 15 CCR § 2402(b). Petitioner maintains that he killed the victim as an act of self-defense, and therefore disputes his murder conviction. (See Dkt. 7, Part 2 at 101.) The Board instructed petitioner "not to try to accommodate the Board by changing his story to a non-truth," but encouraged him to shift his focus away from the trial toward his own self-help programming in prison. (See id.) The Board commended petitioner for participating in some self-help and therapy programs such as anger and stress management, but found that his participation in such programs at the time of the hearing "failed to demonstrate evidence of positive change." (Id. at 92, and 95; see also Dkt. 7, Part 1 at 41-48). As a result, the Board asserted that petitioner needed "additional documented self-help in order to face, discuss, understand, and cope with stress in a nondestructive manner . [because] [u]ntil progress is made the prisoner continues to be unpredictable and a threat to others." (Dkt. 7, Part 2 at 95; see also id. at 33-39.) The Board found that petitioner needed to "look deep inside yourself to have an understanding of what motivated you to [murder the victim]. Why you did it. Why you went through the motions that you did . and why given a similar situation you would not repeat that." (Id. at 99.) Petitioner's statements to the panel during the hearing, as well as the record,provide some evidence to support the Board's conclusion that petitioner failed to demonstrate sufficient insight regarding the commitment offense, or provide sufficient documentation of his participation in self-help programming in prison.
Finally, the Board found that the most recent psychologist's report was inconclusive, because it did not include an assessment of petitioner's risk of violence compared to an average citizen in the community. (See id. at 94, and 110.) Although the report asserted that petitioner presents a low risk of dangerousness and violence when compared to other life term inmates, the Board regarded the report as inconclusive as to petitioner's dangerousness, as the report did not compare petitioner's dangerousness with that of average citizens. (See id. at 46, and 110.) The report also included the following qualifications, "If [petitioner] is provided with a stable living environment, employment, and remains illegal drug and alcohol substance free, and does not associate with negative individuals, he would have a better chance of coping with his release." (See id. at 110.) Based upon the above, the Board found that the psychological report failed to provide a clear assessment of petitioner's ability to function within the community if released. (See id. at 94.) Thus, the most recent psychological report's omission of this assessment, coupled with the above-mentioned constraints on petitioner's release environment, constitute some evidence to support the Board's finding that the most recent psychological report was inconclusive regarding petitioner's ability to function within the community without reoffending if released on parole.
As stated above, it is beyond the authority of a federal habeas court to determine whether evidence of suitability outweighs the circumstances of the commitment offense, together with any other reliable evidence of unsuitability for parole. While petitioner contends that the Board should have considered the "significant stress" suffered by petitioner as a result of living in a "gang and crime infested neighborhood," the Board's failure to do so was permissible. (See id., Part 1 at 31-32.) See 15 CCR § 2402(d)(4). The Board has broad discretion to determine how suitability and unsuitability factors interrelate to support its conclusion of current dangerousness to the public. See Lawrence, 44 Cal.4th at 1212.
Contrary to petitioner's argument that the Board failed to consider or give appropriate weight to most of the parole suitability rules which favored petitioner, the Board acknowledged that petitioner has made strong residential and employment plans for release, and has marketable skills as a subcontractor. (See Dkt. 7, Part 2 at 50-53.) See also 15 CCR § 2402(d)(8). Specifically, the Board cited petitioner's employment offer to work as a subcontractor doing emergency board ups and fire repair work. (See Dkt. 7, Part 2 at 50.) The Board considered petitioner's acquisition of his GED, completion of his building maintenance vocation, lack of a juvenile criminal record, letters submitted by family members in support of his release, and his relatively stable social history. (See id. at 23, 26-29, 36-39, 54-55, and 95.) The Board also commended petitioner for the progress he has made through his involvement with Buddhism, and encouraged him to document the self-help and religious books he reads in preparation for future parole hearings. (See id. at 49, and 95-96.) It is therefore an inaccurate characterization of the record to say that the Board failed to consider evidence that favored petitioner, or found him unsuitable for parole based solely upon the commitment offense. (See id., Part 1 at 31-32.) Although the Board praised petitioner's progress in prison, it determined that his commitment offense, past criminal history, escalating pattern of criminal conduct, institutional behavior, failure to demonstrate adequate insight regarding the commitment offense, insufficient documentation of his participation in self-help programming, and the psychological report's failure to provide an assessment of petitioner's ability to function within the community if released, indicate that he remains an unreasonable risk of danger to society if released on parole.
B. State Court Proceedings
Petitioner's habeas petitions filed in the California Court of Appeal and California Supreme Court contained the same claims as his Los Angeles Superior Court petition, and both petitions were summarily denied. (See Dkt. 12, Ex. A at 2-21; id., Ex. C, Part 1 at 2-45; id., Ex. E at 2-23;Dkt. 7, Part 1 at 34-35.) The parties agree that petitioner has properly exhausted his state court remedies, and timely filed the instant petition. (See Dkt. 7, Part 1 at 1-8; Dkt. 12 at 2.) This Court reviews the Los Angeles County Superior Court's Order upholding the Board's decision to determine whether it meets the deferential AEDPA standards, as it is the last reasoned state court decision. See Ylst, 501 U.S. at 803-04.
In a reasoned decision denying petitioner's request for habeas relief, the Los Angeles County Superior Court asserted that based upon its review of the record, the Board's decision was supported by some evidence. (See Dkt. 7, Part 1 at 36.) The superior court reviewed the facts of the commitment offense, the record of the parole hearing, and the Board's findings regarding both suitability and unsuitability factors. (See id. at 36-37) Specifically, the court noted that the Board based its decision primarily upon the commitment offense, but also considered petitioner's prior arrest for assault with a deadly weapon, his three 115s, as well as his limited self-help programming. (See id. at 37.) It concluded that "although these factors, alone, may not justify a finding of unsuitability, the Board may properly consider them as relevant to the determination of whether the Petitioner is suitable for parole." (Id.) The superior court also agreed with the Board's finding that the motive was very trivial in relation to the offense because "[a]lthough the Petitioner claims that he believed that he was acting in self-defense, the record indicates that the victim did not provoke the Petitioner in any way when he initially brought the gun into the room. Additionally, the victim was unarmed and was not struggling with the Petitioner when he fired the second shot, which killed the victim." (Id.) Thus, based upon the fact that "there is some evidence that his motive was very trivial in relation to the offense; because of his limited self-help program participation; and because of his somewhat recent serious discipline in 2002,"*fn5 the superior court concluded that the Board's decision to deny the petitioner parole for a period of two years was within its broad discretion. (Id.) Because the decisions of both the state court and the Board were supported by "some evidence," there is no need to reach respondent's argument that another standard applies.
Given the totality of the Board's findings, there is some evidence that petitioner's release as of the date of the Board's decision, November 7, 2006, would have posed an unreasonable risk to public safety. The Los Angeles County Superior Court's Order upholding the Board's decision was therefore not contrary to, or an unreasonable application of, clearly established federal law, or based on an unreasonable determination of facts. Accordingly, I recommend the Court find that petitioner's federal due process rights were not violated and that the petition be denied, and this action be dismissed with prejudice.
This Report and Recommendation is submitted to the United States District Judge assigned to the case, pursuant to the provisions of 28 U.S.C. § 636(b)(l). Within twenty days after being served with this Report and Recommendation, any party may file written objections with this Court and serve a copy on all parties. Such a document should be captioned "Objections to Magistrate Judge's Report and Recommendation." Failure to file objections within the specified time may waive the right to appeal the District Court's Order. See Martinez v. Ylst, 951 F.2d 1153 (9th Cir. 1991). A proposed order accompanies this Report and Recommendation.
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text: Historic MiltonOnlineAddressHwy 57 NorthMilton, NC 27305PhonePrimary - (336) 234-8980 Historic town founded in 1796 featuring 1800s era structures housing antique shops, the Milton Studio Art Gallery, Milton General Store, Aunt Millie's. Visit the historic Thomas Day House/Union Tavern. Come see this town developed on the Dan River during the railroad era. Nearby is the world famous Virginia International Raceway. TripAdvisorTripAdvisor Traveler RatingNo reviewsThere are no reviews. Be the first to write one.

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Digital Graphics Systems has introduced the Samurai V-Cut series of digital flatbed cutters. Able to cut PVC, styrene, corrugated board, foam, and SBS board, the Samurai features: a quick-release tool head system, two interchangeable tool positions, and a "V"-cut tool included for structural honeycomb board. Other features include digital control of the Z axis, a built-in control panel, spindle option, and Kase Cut Vision for image camera registration. Maximum cutting area: V-Cut 4400 51 x 51 in.; V-Cut 4600 51 x 74 in.; and V-Cut 4800 51 x 98 in.
The IsoFrame Wave debuted from Mark Bric. A fully flexible display unit – every panel section measures 31.5 x 82-in. and can flex up to 180 degrees each way in the horizontal position. At three or more panel sections wide, the Wave can be maneuvered into a full circle display. Graphics attach and align with a new mechanical/magnetic mounting system. Tables, monitors, and spotlights can be attached if desired, and IsoFrame panel sections can be added to fill the size of any space. Its FastClamp connector system allows for tool-free assembly.
Mactac Graphic Products has debuted several new media. Macmark 8400 is a glossy translucent vinyl for illuminated signs and window décor. The 3-mil cadmium-free vinyl is coated with a permanent acrylic, pressure-sensitive adhesive and features an 83# white kraft liner. Available in 16 transparent, bright-gloss colors.
Hexis has debuted two new lines of vinyl media. The new HX20000 consists of a multilayered, cast 3-mil PVC with Hex'Press air egress adhesive for easy removal. The film is designed for full vehicle wraps and graphics. The gray, gloss film is available in 54-in. wide rolls.
Graphic Finishing Partners has announced its new 200 Series Professional Cold laminators in 33- and 55-in. widths. Designed for cold lamination, mounting, and pre-mask applications, the 200 Series can accommodate jobs including posters, P-O-P displays, single-side lamination, and applying colored vinyls. The 230C and 255C Series features: ½-in. and 1-in. variable roll gap, respectively; variable speeds; large nip rollers; and single pressure adjustment.
Bordeaux Digital PrintInk has introduced Pro-Teck AQ, a new line of water- and UV-based liquid laminates designed for sign, vehicle, and fleet graphics. The laminates are optimized for protection from UV and visible light, and from pressurized water-and-detergent mixtures (used for washing vehicles), as well as from oxidation, moisture, and temperature extremes. The Pro-Teck AQ line is designed to enhance color density and improve color contrast, the company reports, and can be applied by machine or manually, depending on the substrate. In 1- and 5-liter bottles and 5-gallon pails.
Neschen has introduced three additions to the PrintLux series of media for aqueous dye and pigment inks:
PrintLux Nolite 165, a 6.5-mil matte PET compound, features a light-blocking silver back and no-edge curl. Scratch- and water-resistant, it's available in 30-, 36-, and 43-in. widths; ideal for roll-up indoor display systems, says Neschen.
FDC Graphic Films has expanded its digital print media line for wrap, signage, decal, and wall-graphic applications. New additions include:
• Air Advantage Series 1025, a 3- to 5-mil matte finish or patterned cast PVC vinyl film, in various colors for wrap applications. Not intended for digital printing, the film is available in 30- and 60-in. widths.
• Series 7335, a 7.5-mil polyester fabric with a removable adhesive designed for printing wall graphics; it allows for full-bleed printing without edge curl and lifting. In 30-, 54-, and 60-in. widths.
Avery Dennison's new SF100-843-S Conform Chrome accent film made its debut. Conform Chrome provides a shiny, mirror-like finish that's recommended for applications like gas caps, side-view mirrors, stripes, and door handles (note: the film is not recommended for full vehicle wraps). The 5.8-mil Conform Chrome features Avery's Easy Apply RS technology and is conformable, allowing for installation on rounded or curved vehicle components. It is UV-, temperature-, humidity-, and salt-spray resistant.
SA International unveiled Version 5 of its EnRoute software. The latest version adds CAD/CAM capabilities aimed at simplifying sign design and production, including: a new Noise Distortion tool to produce a hand-carved effect; an expanded Advanced Nesting Suite to identify and track sheet remnants; 3D Engrave Suite; Object Distortion; and more.


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For Kumar Mangalam Birla, trendsetters are innovative, definite & passionate about their dreams!
The evening was to honour young achievers wh...
Kumar Mangalam Birla plans to reorganise his telecom infrastructure and towers business
Idea Cellular owns 100 per cent of its 11,000 captive...
Infra for manufacturing much better under Modi government: Kumar Mangalam Birla
Investments are tardy because firms have huge debt on their b...
Kumar Mangalam Birla in shortlist for IIM-Ahmedabad Chairman's post
The panel also recommended HDFC Chairman Deepak Parekh and Infosys Chairm...
kumar mangalam birla
London Business School
Institute of Chartered Accountants of India
Source: Wikipedia
Fire on all cylinders, create manufacturing jobs: Kumar Mangalam Birla & Chanda Kochhar
Instead of importing electronics worth $40 billion a year, if we can manufacture it, not only are we going to save the foreign exchange outgo, we can actually create jobs for 28 million people over a 10-year perio, says Chanda Kochhar.
Economic recovery on the horizon, need big investment in infrastructure: Kumar Mangalam Birla
"Inflation is under check, we are very focussed on fiscal deficit. Transparency in allocation of resources will auger well for India," he said.
No more confused signals from government, there is intent and consistency: Kumar Mangalam Birla
"First time in 25 years, we do not have a shortage of coal, which means Coal India has outperformed and this shows what good leadership can do," said Birla.
It is going to be a tough two years after entry of Jio: Kumar Mangalam Birla
You have got a large player coming in with odious missions, with a track record of performance and fact that it will be disruptive is a given.
25 years of reforms: Changing the mindset is crucial to keep up with competition, says Kumar Mangalam Birla
So the first change that liberalisation entailed was a change in mindset, forgetting old ways of running business.
Inking a legacy! Kumar Mangalam Birla's daughter turning entrepreneur at 17 comes as no surprise
Ananyashree had decided on becoming a social entrepreneur since school, which led to Svatantra Micro finance.
Financial services biz has reached a critical mass and ready to get listed: Kumar Mangalam Birla, Chairman, Aditya Birla Group
Merger will create value for shareholders of both Grasim and Nuvo
Aditya Birla Nuvo-Grasim merger: LIC may decide to give its go-ahead in a week or two, says Kumar Mangalam Birla
The chairman of the Aditya Birla Group met LIC's officiating chairman VK Sharma to explain to him the merger of AB Nuvo and Grasim.
Kumar Mangalam Birla and family plan to invest Rs 500 crore in group's food and grocery business
"The issuance and allotment for shares up to Rs 500 crore will be in one or more tranches within a period of twelve months," the filing said.
Make In India: Kumar Mangalam Birla says sentiment change happening
Lauding the "sharp focus" of Narendra Modi government, industrialist Kumar Mangalam Birla today said there is a change in business sentiment.
Mumbai has the best work culture in India: Kumar Mangalam Birla
The chairman of Aditya Birla Group believes that when it comes to work ethic, the maximum city puts in the most effort.


text:
Long shift, mistakes prove costly for Ducks
DETROIT – Lost amid the grousing over the officiating in the Ducks' 5-4 loss to Detroit was their inability to clear the puck and keep the Red Wings at bay in the final minutes of regulation.
The flashpoint moment was the Masterton Line – Teemu Selanne, Saku Koivu and Jason Blake – and the defense tandem of Andreas Lilja and Paul Mara getting stuck on the ice for an exceedingly long shift and eventually getting burned on Pavel Datsyuk's winning goal with 11.4 seconds left.
But that wasn't the only thing that got under the skin of Ducks coach Randy Carlyle, who watched his team blow two different leads it had managed to grab.
"We had a 3-1 lead in the building and then we stopped doing the things we did," Carlyle said. "We started standing around trying to make plays. And the offense that they can provide, if you let them come at you in waves and that high skill level that they have …"
Carlyle's voice trailed off for a second before he continued.
"We stopped playing hockey," he said. "We got back in the third, we get a big goal, a big individual effort and we still turned the puck over too many times in our own zone."
Selanne provided a 4-3 lead with a clutch play in picking off a pass from Detroit's Dan Cleary and racing to the other end to beat Red Wings goalie Jimmy Howard on the short side.
But on the game's deciding play, Selanne said they can't allow that to occur no matter how long they were on the ice.
"We were gassed but we tried to stay in our position," he said. "Give credit to them, they made a great play. But still, that shouldn't happen in the last minute."
Lilja said, "I tried to get off but I couldn't get off. They turned it around so quick so I couldn't get off the ice." Having played for the Red Wings for five years, the veteran defender knows that they feast on the scenario like no other team but said it isn't limited to them.
"Doesn't matter what team it is," he said. "If you get caught out there, that means you get tired."
The Ducks proved they're at least better than the outfit that didn't show up on opening night in Joe Louis Arena but they also showed that they're still not beyond making costly mistakes.
And so went a golden opportunity to get a rare win in one of the toughest buildings to play in.
"You can't play in the NHL if you continue to turn the puck over the way we turend the puck over in the last half of the game," Carlyle said. "You can't do it against any team.
"If you're going to turn the puck over the way we turned the puck over in the last five minutes of the hockey game, teams are going to get points on you. We had an opportunity to steal one and maybe steal two."
Meanwhile, the tandem of Datsyuk and Henrik Zetterberg continued to torture the Ducks.
Datsyuk only had the goal but has 14 goals and 17 assists in 31 games against Anaheim. And Zetterberg, who had a five-point game against the Ducks last season, added two goals and two assists to his career ledger as he has 15 goals and 17 assists in 26 games.
"I just checked their stats before the game," Selanne said. "If we would play 80 games against them, they will probably have about 200 points."
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aes ddm sr. sec. school,ito students visited parliament
aes ddm sr. sec. school,ito students visited parliament
aes ddm sr. sec. school,ito students visited parliament
The students (class XII-arts) had some extremely learning experience when they marched towards the parliament along with their principal K. Durga and teachers including Alivelu,UVL Kumari and Manjula. They visited parliament museum where they saw the articles and artifacts of Independence Day time. They also attended parliament session and had an enriching audience with BJP veteran Venkaih Naidu.The guides told them about the history of democracy as they took the visiting team across different segments of the parliament. Then,they were shown a documentary film on the freedom struggle. They had time to read legendary speeches by legendary leaders and saw their sculptures. The first hand knowledge of these things was totally different in feel than what they usually learn through text-books.
19-Mar-2015 09:37:22 IST
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FirestarterHD Closed Captioning SDH
Mark L. Lester
Open iTunes to preview, buy, and download this movie.
About the Movie
Drew Barrymore heads up the cast in Firestarter, the suspense-filled film based on the best-selling Stephen King novel. After college sweethearts Andrew (David Keith) and Vicky McGee (Heather Locklear) participate in a mysterious psychic experiment, they have a child, Charlie (Barrymore), who is born with the ability to start fires with her mind. Her unique pyrokinetic talent soon comes to the attention of a covert government agency known as "The Shop." Now operatives from this sinister group (Martin Sheen and George C. Scott) are out to capture nine-year-old Charlie and control her supernatural powers at all costs.
Customer Reviews
What no purchasing this!!!!
I love this movie! came out when i was a kid. I can't believe its only for rental and for y'all who says this movie is cheesy duh its a very old movie!
Okay well I rented firestarter and I had read just some of the book. When o had read the book I had always had to go do something else. But when I saw the movie on iTunes I pressed rent right away. Firestarter is an amazing movie even though it isn't a 2009/2008 movie. Great and highly recommended.
Great Film For It's Time
If you want to see a movie that should be remade TODAY, then watch this one! And the book is even better too.
Viewers Also Bought
- Stephen King's Cat's Eye
- Lewis Teague
- View in iTunes
- Sudden Death
- Peter Hyams
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- Dracula (1979)
- John Badham
- View in iTunes
- The Watcher (2000)
- Joe Charbanic
- View in iTunes
- $14.99
- Genre: Horror
- Released: 1984
- © 1984 Universal Studios. All Rights Reserved.


text:
Thank you for inquiring about A-1 Self Storage. Please give us a call, we will be happy to assist you.
Follow the driving directions below to reach our storage units in Anaheim, CA. We're conveniently located at Knott Ave & Ball Rd, kitty corner from the Walgreens.
From the 91 East:
From the 91 West:


text:
Required Assistant Engineer ( 0 - 5 yrs)
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Required Required Assistant Engineer Candidate Should be BE/b.Tech (mechanical / Electrical /chemical/ Civil) and Diploma Engineer for Sindri Cement and Steel Plant.
Key Skills : maintenance,quality assurance inspector,manufacturing engineer,design engineering,chemical engineering,mechanical engineering,chemical research...
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Key Skills : civil contractor,civil engineer


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Hotels in Sturgeon Falls
Hotel reservation
Sturgeon Falls
Hotel rooms in Sturgeon Falls
There are not so many hotel rooms in Sturgeon Falls, just 6, still everyone can find an offer to suit his choice. The most common offers in this city are hotels, they count 3 out of 6, and their prevalent location is central district. According to our practice, it is the most profitable to book a hotel in the west of Sturgeon Falls, as it is the location of the hotels with optimal cost and quality offers along with the cheap hotels. Taking into account the small size of the city, there is no need to dwell hotel reservation on the location: the road to the city center would take less then half an hour, so one can book a hotel in any district of Sturgeon Falls. The most populated with hotels district of Sturgeon Falls is the south, 50% of cheap hotel rooms are concentrated here. Sturgeon Falls is an ideal place for couple and family, such travellers rate hotels there 8.0 out of 10 on average. Apart from all these, hotels in Sturgeon Falls offer their customers parking, restaurant/cafe, laundry service and pets allowed. The most appreciated amenities in Sturgeon Falls hotels are location and vibe. According to the visitors reviews, hotels in Sturgeon Falls has great room, great location and fantastic service. Take a look at our selection of the cheap hotel rooms in Sturgeon Falls to make a well-informed choice for your reservation!
Best hotels in Sturgeon Falls
Hotels in Sturgeon Falls are spread around the city within the distance of 3.3 kilometers, while 3 hotels are located directly in the city center. The most popular accommodations in Sturgeon Falls is
Lincoln Motel
, 2 stars hotel located in a 0.2 kilometers from the city center.
The best hotels are here and now. Try them!
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Urb Residencial La Ola,Puerto Banus - 1744
From $858 / week
Description from the manager
Description from the manager
Bedrooms: 3/
Bathrooms: 2/
Sleeps: 6/
Type: Apt. / Condo
Book this 3 bedroom, 2 bathroom apt. / condo in Puerto José Banús today! A total of 6 people can sleep here comfortably.
Guests can enjoy a pool, air conditioning, and internet access among other amenities offered by this rental.
No travelers have shared a review of this property yet.
Costs vary, with the average weekly rate as low as $805.00 to as high as $903.00, depending on travel dates.
The owner responds to 45% of inquiries, which is lower than average, and last updated the property's calendar 5 months ago, so this rental may not be available for your requested dates, but please inquire to confirm.
About the manager
About the manager
- Response rate: 45%
- Response time: Within a day
- Calendar updated: 5 months ago
Overall rating:
4.5 / 5.0
Proximity to TripAdvisor's Top Puerto José Banús Attractions
Proximity to TripAdvisor's Top Puerto José Banús Attractions
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text: so I have a firmware 3.1.2 3g jailbroken iPod touch with fring, backgrounder, and gvmobile (google voice)apps on it among others. I have both google voice and fring set to background when opened. It was working for a while to call people using gizmo 5 in fring and gv mobile but it stopped working. I can still recieve calls with it but I can no longer place calls. If I use my computer I can use google voice on it to call my fring but I cant use my gvmobile app to call my fring app Please help. I don't have a cell phone and I really need one but I don't want to buy one.


text: School of Linguistic, Speech and Communication Sciences http://hdl.handle.net/2262/45 School of Linguistic, Speech and Communication Sciences 2016-12-05T10:31:26Z Sentence mode, alignment and focus in the intonation of Cois Fharraige, Inis Mór and Gaoth Dobhair Irish : a dual approach http://hdl.handle.net/2262/78157 Sentence mode, alignment and focus in the intonation of Cois Fharraige, Inis Mór and Gaoth Dobhair Irish : a dual approach O'Reilly, Maria This work is devoted to the analysis of the intonation in three varieties of Irish: Gaoth Dobhair (Donegal within Ulster), and Cois Fharraige and Inis Mor (Connemara within Connaught). The experimental work is carried out at two levels of analysis. The melodic contours are described in terms of their tonal composition with the IViE annotation system, and the phonetic parameterisation is conducted by means of parallel contour-based and Fujisaki model measurements. The aims of this study are (1) to gain new insights into the intonation of two dialects of Irish with respect to cross-dialect and within-dialect variation, and (2) to assess the Fujisaki model for its suitability to perform analysis (and to some degree also synthesis) of the intonation of Irish dialects. With respect to aim (1), the work confirms an intonational divide between Ulster and the rest of the island and shows that the differences are not limited to the phonological level. The quantitative results indicate that the differences conveyed on the tonal level are further enhanced by concomitant phonetic effects in the melodic contour. Possible phonetic differences between the intonation of Cois Fharraige and Inis Mor were not found. However, the Inis Mor speakers were found to use a wider array of tunes than the Cois Fharraige speakers. In relation to aim (2), the Fujisaki model is shown to be adequate for the synthesis of f0 contours of Irish, and is found to perform better on the Gaoth Dobhair data compared to the data from Cois Fharraige and Inis Mor. Unfortunately, the model is not an equally promising analytical tool in the linguistic sense. Drawing meaning directly from the model's amplitude parameters is made difficult because of the superposition of the phrase and accent components; the timing parameters of the model, however, are easily interpretable. 2014-01-01T00:00:00Z First language attrition and second language acquisition in a second language environment http://hdl.handle.net/2262/78154 First language attrition and second language acquisition in a second language environment Opitz, Cornelia This thesis is concerned with the outcomes of the parallel processes of first language maintenance and second language acquisition in adult bilinguals resident in a second language environment. Current perspectives on first language attrition and bilingualism makes a strong case for considering L1 attrition as a feature of multi-competence in bilinguals, and for taking mto account changes across the range of languages known by a bilingual in assessing proficiency. They suggest that the simultaneous maintenance of several languages by a bilingual may result in trade-offs between those languages, but also that dynamic interactions between languages and a host of other factors will result in very different outcomes for individuals. 2011-01-01T00:00:00Z A relevance theoretic analysis of contrast connectives in Spanish : pero and aunque http://hdl.handle.net/2262/78149 A relevance theoretic analysis of contrast connectives in Spanish : pero and aunque Olmos, Susana This thesis presents a pragmatic analysis of a number of contrast connectives in Spanish, in particular pero 'but' and aunque 'although'. The study follows the theoretical framework of Relevance Theory (RT). The ideas put forward in this analysis build on previous RT analyses of the English counterparts, but and although. We provide an account of the fiinction of these connectives based on the notions of the procedural meaning and inferentiality (Blakemore 1987, 1993, 2000, 2002, Iten 1998; 2000(a), 2005 and Hall 2003, 2004, 2005). However, we develop this account further by providing a different analysis of how pero and aunque contribute to the process of utterance comprehension. From a RT point of view, our analysis follows the main tenets on which the theory is based. Our analysis of the connectives pero and aunque builds on the RT position that there is great reliance on the process of inferencing in deriving the meaning explicitly communicated. We propose a procedural meaning for these connectives based on the idea of contrast with alternatives. This analysis favours a view of their effects as arising from the explicit rather than the implicit side of what is communicated. In particular, these connectives are analysed as constraints on the derivation of propositional attitudes and illocutionary forces, which in this theory are described as higher level explicatures. This analysis of pero and aunque, as contributing to the explicit side of communication, contrasts with previous RT studies of their English counterparts but and aunque, in which these latter have been described as constraints on the derivation of the implicit content 2008-01-01T00:00:00Z The spoken Irish of sixth-class pupils in Irish immersion schools http://hdl.handle.net/2262/78131 The spoken Irish of sixth-class pupils in Irish immersion schools Ó Duibhir, Pádraig The aim of the present study is to investigate the acquisition of Irish by sixth-class pupils in all-Irish primary schools, with a particular focus on the features of their spoken Irish. Although there is a long historical precedent for Irish-medium education, the instructional strategies employed are similar to those in immersion settings throughout the world that seek to maximise contact with the second language (L2). Chapter 1 presents a brief overview of the current state of the Irish language and its historical role in the education system since the foundation of the Irish Free State in 1922. While early State policies in relation to Irish-medium education were successful in many respects, the general public resented its compulsory nature and the number of Irish-medium schools declined in the 1950's and 1960's. The growth of a 'bottom-up' movement during the 1970's that led to the establishment of new all-Irish schools is described and the critical features of these schools are delineated. The role of these schools in the revitalisation of Irish is also explored. 2009-01-01T00:00:00Z


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Island StyleHawaiian, Diners, American
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Love this place. Licking is east of Ft Leonard Wood and about 45 minutes away on avg. Monica and her family are wonderful to visit with while your meal is...read more
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Affordable Quality Garages Shed
Guide price: $20
Last updated on 7th Jan 2016
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Affordable Quality Garages Shed
Wildboarsheds offer a complete shed building solution Australia wide. We have not employed any local distributor or dealer as a middle man to manage orders or contracts. This way you can save a huge amount of commission expense. We understand the needs of our client first and based on the requirements we design bespoke project from conception to completion. We also help our clients with land selection, technical details along with council requirements for site & proposed building.
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text:
The Ottawa Senators used their home ice advantage at Scotiabank Place to defeat the Buffalo Sabres for the second time in 8 days by a 2-0 margin, handing the Sabres their 8th loss of the season. Craig Anderson showed Buffalo why he was leading the league in both goals against average (1.49) and save percentage (.950) coming into tonight's game.
With the win, Ottawa snaps their two game losing streak as they end their four game home stand while dealing Buffalo their consecutive loss.
Buffalo played a solid first period with all four lines putting some descent pressure on the Senators. Both Mikhail Grigorenko and Tyler Myers looked like being healthy scratches against the Bruins (the last two games for Myers), might have put an extra jump in their step as the team mates seemed on their game in the opening stanza. The Sabres outshot the Senators 13-7.
The second period started out much the same as the first with both teams having their fair share of scoring chances. With the help of three power play opportunities, Ottawa started stealing some of the momentum and would finally put the scoreboard to use.
With just over six minutes left in the second,Marc Methot got caught tripping Mikhail Grigorenko behind the Ottawa net. What started out as a positive situation for the Sabres ultimately led to a five minute defensive lapse that would eventually lead to the teams demise.
Just over a minute into the penalty, the Senators skated down the ice and after recieving a pass from Milan Michalek, Erik Karlsson slapped a shot from the top of the face off circle that beat Miller. It would be Karlsson's team leading 6th goal of the season.
At the 17:14 mark the defensive woes continued for the Sabres. After a shot from Sergei Gonchar, Erik Condra skated in to the right of Ryan Miller and snapped home the rebound to make it 2-0.
Down by two to start the third, the Sabres looked for some steady offensive pressure but with a total of seven minor penalties handed out, it was difficult for the club to get any flow going. Buffalo put up 15 shots in the period but Anderson and the Ottawa defense was up to the task.
Ryan Miller once again did his part by holding his team close with his solid goaltending and the Sabres managed to throw 42 shots at the Senators net minder.
The Ottawa Senators get very little time to enjoy their victory and second shut out of the season as they head to the Consol Energy Center in Pittsburgh to face the Penguins Wednesday evening. On the other hand, the Sabres will have the next two days to regroup before they entertain the Boston Bruins Friday night.
With the victory the Senators (7-4-2) move five points ahead of the Sabres (5-8-1) and just two points behind Northeast Division leaders, the Boston Bruins.
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Joe Paniccia via Facebook
February 12, 2013 at 11:34 pm
easy recap… "sabres suck again"
Joseph Gallagher via Facebook
February 12, 2013 at 11:32 pm
who gives a fuck they suck and i refuse to even acknowledge their existence until they make a trade or fire the coach or both
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July 19, 2012
UNITED STATES OF AMERICA,v.CHARLES PALMER, ET AL., DEFENDANTS.
Before the Court are several moving defendants' separate omnibus motions (Docket Nos. 74, Charles Palmer, Sr.; 75, 76, George Krajas; 84, Michael Smerka; 72, Aleathea Stone; and 85, 86, Charles Palmer, Jr.) seeking various forms of relief. Some of the other defendants joined in these motions (Docket Nos. 81 (William Bart Alexander); 80, 96 (Timothy Borkowski); 82 (Christopher Carluccio); 77 (James Simmons)), with some of the moving defendants also joined in co-defendants' motions, Docket Nos. 84 (Smerka), 85 (Charles Palmer, Jr.), 86 (Charles Palmer, Jr., amended motion), 78 (Charles Palmer, Jr.)*fn1 . This Order considers the common requests by defendants for non-dispositive discovery relief. A separate Report & Recommendation will consider the various suppression motions made by some of these moving defendants.
Responses to these motions were duly filed (Docket Nos. 90 (Government response to Palmer, Sr., motion), 87 (response to Krajas's motion), 95 (supplemental response to Krajas's motion), 91 (response to Smerka motion), 89 (response to Stone motion), 88 (response to Palmer, Jr., motion)) and the Government also moved for reciprocal discovery from these defendants (Docket Nos. 90 ¶ 32; 87 ¶ 31; 91, ¶ 15; 89, ¶ 13; 88, ¶ 31). These motions were argued on March 28, 2012 (text minute entry, Mar. 28, 2012), with further briefing ordered on the Franks hearing issue by April 10, 2012, and Government response by April 20, 2012. That briefing was filed (see Docket Nos. 93 (Krajas Memo. of Law), 95 (Government supplemental response to Krajas)) and the motions were initially deemed submitted as of April 20, 2012. Meanwhile, on March 30, 2012, this Court had to recuse as to one defendant, Gregory Miller (Docket No. 92)*fn2 and Chief Judge Skretny referred the entire case to Magistrate Judge Schroeder (Docket No. 98). This referral was modified, however, on June 13, 2012, to refer this case (save Miller) back to the undersigned (text Order, June 13, 2012). At a status conference held on June 19, 2012, this Court deemed the motions fully submitted as of that date and calculated the time remaining on the Speedy Trial Act clock (text of minute entry, June 19, 2012).
Charles Palmer, Sr., moved, on April 10, 2012, for a two-week extension of the supplemental motion date (Docket No. 94) and Krajas separately moved on April 18, 2012, for extension of time (to May 4, 2012) to file his supplemental motion (Docket No. 97). These motions were never formally decided, although Krajas filed his memorandum on May 8, 2012 (see Docket No. 99) and Palmer, Sr., did not file any supplemental papers. Upon further consideration, the preliminary Speedy Trial Act calculation made on June 19, 2012, is amended; the Speedy Trial Act has not expended any time given this pending motion for extension of time, see 18 U.S.C. § 3161(h)(1)(D). Those motions (Docket Nos. 94, 97) are now denied as moot given Krajas' filing and this Court's determination of the underlying motions.
Defendants were indicted in a multiple count Indictment for conspiracy by all eleven defendants to possess with intent to distribute cocaine, cocaine base, marijuana, and hydrocodone from at least November 2010 to the date of the Indictment (Docket No. 1, Indict., Count 1). Two defendants also were charged with seven individual counts of possession of cocaine, cocaine base or marijuana by George Krajas or Charles Palmer, Sr., or by both Krajas and Palmer, Sr., together (id. Counts 2-8). The Indictment also charges a forfeiture allegation against premises on Broadway in Buffalo, New York (id. at pages 7-8). The alleged possessions occurred in November of 2010, May and June of 2011 (id., Counts 2-8).
I. Informant Information
Defendants seek the pre-trial disclosure of the identity of any informants in this case (e.g.,
Docket No. 72, Stone Atty. Affirm. ¶ ¶ 7-11; Docket No. 74, Palmer, Sr., Atty. Affirm. ¶¶ 11-16). In general, the Government objects to defendants' expansive discovery requests (e.g., Docket No. 90, Gov't Response re Palmer Sr. ¶ 10).
The Government is not required to furnish the identities of informants unless it is essential to the defense. Roviaro v. United States, 353 U.S. 52, 60-61 (1957); United States v. Saa, 859 F.2d 1067, 1073 (2d Cir.), cert. denied, 489 U.S. 1089 (1988). Nor does Rule 16 require the Government to disclose the names of witnesses prior to trial. United States v. Bejasa, 904 F.2d 137, 139 (2d Cir.), cert. denied, 498 U.S. 921 (1990).
Defendants each have not established that the pre-trial disclosure of the identities of any informants is essential to their respective defenses. This request is denied.
II. Discovery
Defendants next seek various forms of discovery. The Government responds that in general it has complied fully with its discovery obligations to each defendant (e.g., Docket No. 90, Gov't Response to Palmer, Sr., Motion ¶ 1).
Although there is no general constitutional right to pretrial discovery in a federal criminal case, a defendant does have a pretrial discovery right with respect to certain matters. For example, under the Fifth Amendment's due process clause, a defendant is entitled to specific exculpatory evidence which is material either to guilt or punishment. In addition, the government has certain disclosure obligations under Rule 16 of the Federal Rules of Criminal Procedure and the Jencks Act, 18 U.S.C. § 3500.
III. Brady
Defendants each have requested that the Government disclose all materials potentially favorable to them, including information to be used for the impeachment of the Government's witnesses, as required under Brady v. Maryland, 373 U.S. 83 (1963), Giglio v. United States, 405 U.S. 105 (1979), and their progeny. Brady material, as those cases have come to define it, includes all evidence which may be favorable to the defendant and material to the issue of guilt or punishment. Such evidence includes "[a]ny and all records and/or information which might be helpful or useful to the defense in impeaching ... [and] [a]ny and all records and information revealing prior misconduct ... attributed to the [Government's] witness," United States v. Kiszewski, 877 F.2d 210 (2d Cir. 1989).
Defendants' motions identify numerous specific categories of documents encompassing both exculpatory and impeachment Brady materials which they seek to obtain. The Government's written response is that it acknowledged its obligations and declared that it was not in possession of any Brady material (e.g., Docket No. 90, Gov't Response to Palmer, Sr., ¶¶ 4-5, 8-9).
The instant case does not appear to be unusually complex. Balancing all of the above, the Court concludes that disclosure of such impeachment material, if any exists, in accordance with the common practice in this District (prior to trial so long as it is disclosed in sufficient time for the defendant to have a fair opportunity to utilize the information at trial) is sufficient in this case.
IV. Federal Rules of Evidence 404(b), 608, 609
In response to defendants' motions for disclosure of Federal Rules of Evidence 404(b), 608, and 609 materials regarding defendants' respective prior crimes and other bad acts, the Government offers to provide reasonable notice of these prior acts in advance of trial (e.g., Docket No. 89, Gov't Response to Stone Motion ¶ 11). This is sufficient.
V. Jencks Act
Defendants seek immediate disclosure of material subject to the Jencks Act, 18 U.S.C. § 3500. The Jencks Act governs the disclosure of information and statements relating to the Government's witnesses. Generally, according to the Jencks Act, the Government need not disclose such information regarding its witnesses until after the witness has testified at trial. In this case, the Government has agreed to disclose this information at the time set by the District Court (e.g., Docket No. 90, Gov't Response to Palmer, Sr. ¶ 3). This is acceptable; the Government shall disclose Jencks Act information prior to trial as ordered in the District Court's final pretrial Order.
VI. Preservation of Evidence
Defendants next seek preservation of agents' rough notes and other evidence. Generally, the Government does not address this issue, but declares generally that it has and will comply with discovery and disclosure rules (e.g., Docket No. 89, Gov't Response to Stone ¶¶ 6, 7). If it has not done so already, the Government is to preserve agents' rough notes.
VII. Bills of Particulars
Each defendant next moves for a Bill of Particulars. Rule 7(f) of the Federal Rules of
Criminal Procedure provides that the Court may direct the filing of a Bill of Particulars. The Government opposes these requests because most of the information sought particularized is presented in voluntary discovery and in the criminal Complaint or is information beyond the scope of a Bill of Particulars (e.g., Docket No. 88, Gov't Response to Stone ¶ 12).
Bills of Particulars are to be used only to protect a defendant from double jeopardy, to enable adequate preparation of a defense and to avoid surprise at trial. United States v. Torres, 901 F.2d 205 (2d Cir. 1990). The Government is not obligated to "preview its case or expose its legal theory," United States v. LaMorte, 744 F. Supp. 573 (S.D.N.Y. 1990); United States v. Leonelli, 428 F. Supp. 880 (S.D.N.Y. 1977); nor must it disclose the precise "manner in which the crime charged is alleged to have been committed," United States v. Andrews, 381 F.2d 377 (2d Cir. 1967). Notwithstanding the above, there is a special concern for particularization in conspiracy cases, United States v. Davidoff, 845 F.2d 1151 (2d Cir. 1988), but the Government need not prove overt acts in furtherance of the conspiracy, United States v. Knuckles, 581 F.2d 305, 311 (2d Cir.), cert. denied, 439 U.S. 986 (1978), or particularize on the facts surrounding the formation of the conspiracy or when a given defendant joins it, United States v. Iannelli, 53 F.R.D. 482 (S.D.N.Y. 1971) (id. ¶ 29). While it is within this Court's sound discretion to order the filing of a Bill of Particulars, Wong Tai v. United States, 273 U.S. 77, 82 (1927), the burden is upon defendants to show that non-disclosure of the requested particulars would lead to prejudicial surprise at trial or would adversely affect defendants' rights, id. (Docket No. 55, Gov't Atty. Aff. ¶ 24). Any particularization confines the Government's proof to the particulars furnished, United States v. Glaze, 313 F.2d 757, 759 (2d Cir. 1963); United States v. Murray, 297 F.2d 812, 819 (2d Cir.), cert. denied, 369 U.S. 828 (1962) (id. ¶ 27).
Count I of the Indictment alleges that "beginning sometime prior to in or about November 2010, the exact date being unknown, and continuing up to the date of the return of this Indictment, in the Western District of New York, and elsewhere, the defendants," knowingly, willfully, and unlawfully conspired to agree to possess cocaine, cocaine base, marijuana, and hydrocodone with the intent to distribute and to distribute the same (Docket No. 1, Indict., Count 1). Upon review of the Indictment and the extent of discovery produced in this case to defendants, this Court finds that each defendant is not entitled to a Bill of Particulars from the Government here inasmuch as each defendant is sufficiently advised of the charges against him to allow for the proper preparation of a defense, to avoid surprise at trial, and to protect the defendant from double jeopardy.
VIII. Grand Jury Minutes
Palmer, Sr., and Krajas (Docket Nos. 74, Palmer, Sr., Atty. Affirm. ¶¶ 73-74; Docket No. 75, Krajas Motion at 17-18) each seek to review the Grand Jury minutes (as well as Palmer, Jr., and other defendants joining in these motions). Palmer, Sr., states that he has particularized need to be informed of the evidence against him (Docket No. 74, Atty. Affirm. ¶ 74), while Krajas claims that he faces a bare bones Indictment that does not inform him of the witnesses against him (Docket No. 75, Krajas Motion at 18).
Under Federal Rule of Criminal Procedure 6(e)(3)(E)(ii), this Court may authorize the disclosure of a Grand Jury matter at the request of the defense who shows that a ground may exist to dismiss the Indictment because of a matter that occurred before the Grand Jury. The Court may authorize this disclosure "at a time, in a manner, and subject to any other conditions that it directs," id. Defendants had to show that they have a particularized need for disclosure that outweighs the Government's interest in maintaining Grand Jury secrecy, United States v. Alexander, 860 F.2d 508, 513 (2d Cir. 1988); see United States v. Twersky, No. S2 92 Cr. 1082, 1994 U.S. Dist. LEXIS 8744, at *14-16 (S.D.N.Y. June 29, 1994) (granting in camera review of Grand Jury minutes and reserving decision on motion to dismiss Indictment). A defendant must state a particularized need for these transcripts "in order to present a vigorous defense" which outweighs the principle of Grand Jury secrecy, Pittsburgh Plate Glass Co. v. United States, 360 U.S. 395, 400 (1959). There are occasions "when the trial judge may in the exercise of his discretion order the minutes of a grand jury witness produced for use on his cross-examination at trial. Certainly 'disclosure is wholly proper where the ends of justice require it,'" Pittsburgh Plate Glass, supra, 360 U.S. at 400 (quoting United States v. Socony-Vacuum Oil Co., 310 U.S. 150, 234 (1940)). The burden is upon the defendant to show a particularized need exists that outweighs the policy of Grand Jury secrecy, id. Particularized need includes impeachment of a witness at trial, refreshing recollection, and testing witness credibility, United States v. Proctor & Gamble Co., 356 U.S. 677, 683 (1958). "A review of grand jury minutes is rarely permitted without specific factual allegations of government misconduct," Torres, supra, 901 F.2d at 233, and (even if disclosed) "as a general matter, a district court may not dismiss an indictment for errors in grand jury proceedings unless such errors prejudiced the defendants," Bank of Nova Scotia v. United States, 487 U.S. 250, 254 (1988); Torres, supra, 901 F.2d at 233.
As was held in the Pittsburgh Plate Glass case, supra, 360 U.S. at 400, defendants have not made a showing of particularized need, but cf. Dennis v. United States, 384 U.S. 855, 872-73 (1966) (Court found that defense did not make out a particularized need, listing the circumstances of particularized need). Merely stating the desire to make a vigorous defense in general or the lack of particularization in the Indictment does not show a particular need for Grand Jury testimony (such as specifying which witness's testimony is necessary for that vigorous defense) or show whether that Grand Jury testimony is needed for impeachment, refreshing recollection or testing credibility.
The motions on this ground are denied.
IX. Federal Rules of Evidence 702, 703, 705, Expert Disclosure Charles Palmer, Jr., seeks a list of Government expert witnesses and disclosure of their reports and summaries of their testimony (Docket No. 86, Palmer, Jr., Affirm. ¶ 49). The Government does not expressly consider this motion, but argues generally that discovery has been complied with (Docket No. 88, Gov't Response to Palmer, Jr., ¶¶ 1, 6). If not already produced, the Government is to furnish expert disclosure, Palmer, Jr.'s, motion for this relief is granted.
IX. District Court Motions
Defendants seeks various forms of relief that are best determined by the District Judge
that would hear the trial of this case. These include their request for an audibility hearing, exclusion of hearsay under Crawford v. Washington, 541 U.S. 36 (2004), production of the Government's Summaries, defense participation in voir dire, and Smerka's severance motion (Docket No. 84, Atty. Affirm. ¶¶ 64-69). These issues are better considered by the District Judge prior to trial and are deferred for that consideration.
X. Franks Hearing
A. Palmer, Sr., and Palmer, Jr.
Palmer, Sr., (and those joining as it applies to them, including Palmer, Jr., Docket No. 78, Palmer, Jr., Atty. Affirm. ¶ 3; Docket No. 86, Palmer, Jr., Atty. Affirm. ¶ 109) next seeks a Franks hearing*fn3 contending that the issuing judge was not informed that boilerplate text was used in the supporting affidavit and that more surveillance occurred than was stated in that affidavit to justify the (wiretap) warrant (Docket No. 74, Palmer, Sr., Atty. Affirm. ¶¶ 103-08), seeking pre-hearing disclosure on the Franks issues (id. ¶¶ 109-12). The Government opposes a Franks hearing for its wiretap applications, arguing that defendants failed to plead a proper basis for that hearing (Docket No. 90, Gov't Response to Palmer, Sr., Motion ¶ 28; see also Docket No. 88, Gov't Response to Palmer, Jr., Motion ¶ 27). Defendant only points to the use of boilerplate text and that alone does not sufficiently raise the issue for a Franks hearing (Docket No. 90, Gov't Response to Palmer, Sr., Motion ¶¶ 28-31; see also Docket No. 88, Gov't Response to Palmer, Jr., Motion ¶¶ 28-30).
A defendant is entitled to a hearing under Franks if a substantial showing is made that the warrant affidavit contains a false or omitted statement; that the statement was included intentionally or recklessly; and that the statement was an integral to the probable cause finding, Franks, supra, 438 U.S. 154 (see, e.g., Docket No. 88, Gov't Response to Palmer, Jr., Motion ¶ 27). Palmer, Sr., and Palmer, Jr., each fail to show that any false or omitted statement was in the warrant affidavit and that the falsity or omission was integral to the probable cause finding. Thus, their respective motions for a Franks hearing are denied.
B. Krajas
Krajas also moves for a Franks hearing regarding omissions from the record for issuance of the wiretap Order, complaining that the agent's affidavit contains boilerplate allegations that have been rejected in other courts (Docket No. 76, Krajas Atty. Affirm. ¶¶ 29-35, 34). Krajas argues that there were material omissions in the wiretap application by not disclosing the criminal background of CS-1, the confidential source relied upon as the basis for seeking the wiretap, as well as purported personal bias of CS-1 (Docket No. 93, Krajas Memo. at 2-3). Looking at whether probable cause was established, Krajas points out that the affiant agent relied upon information provided by confidential sources (id. at 7; Docket No. 83, Ex. A, Aff. of Marcello Falconetti at 4-5). Krajas complains that it is not clear from the affidavit whether one or multiple confidential sources were relied upon (Docket No. 93, Krajas Memo. at 7). As for CS-1, Krajas argues that the omissions on the reliability of CS-1 materially affected the application (id. at 8). As for CS-2, Krajas argues alternatively that CS-2 rejects the necessity argument for wiretap (since it is believed that CS-1lived in Krajas' household, see Docket No. 76, Krajas Atty. Aff. ¶ 21*fn4 ) and that CS-2 was unreliable (Docket No. 93, Krajas Memo. at 8-12). In anticipation of a Franks hearing, Krajas also seeks pre-hearing disclosure of all documents which might tend to show that the Government had failed to disclose all of the information required by statute (Docket No. 76, Krajas Atty. Aff. ¶¶ 36-38), listing specific categories of documents (id. ¶ 39).
The Government responds that Krajas' allegations about the facts not disclosed to the issuing judge (about CS-1 living with defendant, his theft of $6,000, and pending criminal charges against him) did not affect the Court's probable cause decision in issuing the wiretap Order (Docket No. 87, Gov't Response to Krajas Motion ¶ 28). The Government concludes that sufficient probable cause was shown for issuance of the wiretap Order (id. ¶ 30). In its supplement, the Government points out that the affiant agent, Marcello Falconetti, was not aware of CS-1's criminal charges before or during the wiretaps (Docket No. 95, Gov't Supp'al Response at 3-4; id., Ex. A, Falconetti Aff. of Apr. 9, 2012, ¶¶ 3-4). The omission of CS-1's criminal record was not necessary for the probable cause determination that Krajas was committing drug trafficking crimes over his cellular telephone and Krajas failed to show that this omission was intentional or reckless (Docket No. 95, Gov't Supp'al Response at 4-5, Ex. B (wiretap Order)). Even if CS-1 is excluded from consideration, the Government concludes that this Court had ample information to support probable cause from CS-2, from prior purchases of cocaine by CS-2 from Krajas and controlled purchases from Krajas by CS-2 and CS-2 stating that Krajas used the telephone to conduct drug trafficking (id. at 5-6).
Again, Krajas needs to make a substantial showing that the warrant affidavit contains a false or omitted statement; that the statement was included intentionally or recklessly; and that the statement was an integral to the probable cause finding in order to be entitled to a Franks hearing, Franks, supra, 438 U.S. 154. A review of the wiretap application shows that probable cause was established through CS-2 activities and interactions with Krajas. According to Agent Falconetti, CS-2 had made drug transactions with Krajas by calling Krajas on the cellular telephone that was to be monitored (Docket No. 83, Krajas Ex. A, Wiretap Application, Ex. C, Falconetti Aff. ¶¶ 17(a)(i), (ii), 20-34). CS-1, who Krajas now identifies and objects to omissions about his background, connects Palmer, Jr., as the supplier of cocaine to Krajas (id. ¶¶ 34(a), 16, 16(a)(i)-(ii)). CS-1 states that Krajas uses his cellular telephone to then sell these drugs (id. ¶ 16(a)(v)). But Krajas points to instances where CS-2 controlled when consensual conversations were recorded and, when not recorded, how Government agents had to rely upon CS-2's version of the conversations (Docket No. 93, Krajas Memo. at 11-12).
Krajas has established that facts were omitted from Chief Judge Skretny in applying for the wiretap and that these statements (and the credibility findings that could be drawn from them) were integral to finding probable cause for the wiretap. Therefore, a Franks hearing will be held; a separate Order will notice that hearing.
XI. Reciprocal Discovery
As noted above, the Government in responding to these defendants seeks reciprocal discovery from them (Docket Nos. 90 ¶ 32; 87 ¶ 31; 91, ¶ 15; 89, ¶ 13; 88, ¶ 31). Although some of the defendants joined in the moving defendants' motions, the Government responded to the individual motions and sought reciprocal discovery expressly in those responses; the Government did not file either a further motion for discovery from the joining defendants or file an omnibus response that presumably would include the joining defendants' motions. Defendants (movants and those joining) apparently have no opposition to the reciprocal motions. Under Rule 16, the Government is entitled to production of documents in a defendant's possession that the defendant intends to use in his case-in-chief. Each defendant is reminded of his or her obligations under Rule 16 and Federal Rules of Evidence 803(24) and 804(b)(5) to produce pursuant to the Government's notice for reciprocal discovery. The Government's motions are therefore granted. The issue, then, is whether this grant includes the joining defendants as well as the movants. Borkowski joined as to particular relief asserted by some of the defendants, including discovery as sought by Palmer, Sr. (Docket No. 80), as has Alexander (Docket No. 81, Alexander Atty. Affirm. ¶ 3a.), Simmons (Docket No. 77, Simmons Atty. Affirm. ¶ 3), and Carluccio joined in the motions filed by Krajas and Palmer, Sr. (Docket No. 82, Carluccio Atty. Affirm. ¶ 3; see also Docket Nos. 84, 78, 85-86 (moving defendants' joinder motions)). If the moving defendants are bound to provide reciprocal discovery to the Government, those joining them for their discovery relief are also bound to produce reciprocal discovery. Since the joining defendants did not qualify their joinder or exclude seeking discovery relief, they are bound by the Government's reciprocal discovery motion. Therefore, all moving and joining defendants are to produce reciprocal discovery.
For the reasons stated above, certain defendants' motions joining in omnibus motions filed by co-defendants (Docket Nos. 81 (Alexander); 80, 96 (Borkowski); 82 (Carluccio); 77 (Simmons); 84 (Smerka); 85, 86, 78 (Palmer, Jr.)) are granted; defendants' omnibus motions (Docket Nos. 74, Palmer, Sr.; 75, 76, Krajas; 84, Smerka; 72, Stone; and 85, 86, Palmer, Jr.) and are granted in part, denied in part or deferred for consideration by the District Judge as discussed in detail above. In particular, as for defendants' motions for a Franks hearing, it is denied as to Palmer, Sr. (Docket No. 74) and those defendants joining him, and granted as to Krajas (Docket No. 76). That Franks hearing as to Krajas will be set in a separate Order.
The Government's motions for reciprocal discovery (Docket Nos. 90 ¶ 32; 87 ¶ 31; 91, ¶ 15; 89, ¶ 13; 88, ¶ 31) is granted as to all moving and joining defendants.
The motions by Palmer, Sr. (Docket No. 94), and Krajas (Docket No. 97) for extension of time to supplement their earlier motions are denied as moot.
So Ordered.
Honorable Hugh B. Scott United States Magistrate Judge
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