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[ { "docid": "21211547", "title": "", "text": "any proceeding brought under this subsection, the presumption of abuse may only be rebutted by demonstrating special cir cumstances, such as a serious medical condition or a call or order to active duty in the Armed Forces, to the extent such special circumstances that justify additional expenses or adjustments of current monthly income for which there is no reasonable alternative.” . See Census Bureau Median Family Income By Family Size available at www.usdoj.gov/ ust/eo/bapcpa/20060213/meanstesting.htm. . Those cases not factoring in the issue of the debtor's retention of collateral: In re Walker, 2006 WL 1314125 (Bankr.N.D.Ga. May 1, 2006); In re Hartwick, 352 B.R. 867 (Bankr.D.Minn.2006); In re Simmons, 357 B.R. 480 (Bankr.N.D.Ohio 2006); In re Randle, 358 B.R. 360 (Bankr.N.D.Ill.2006); In re Singletary, 354 B.R. 455, 468 (Bankr.S.D.Tex.2006); In re Nockerts, 357 B.R. 497 (Bankr.E.D.Wis. 2006); In re Zak, 2007 WL 143065, 361 B.R. 481 (Bankr.N.D.Ohio 2007); In re Sorrell, 359 B.R. 167 (Bankr.S.D.Ohio 2007). Those cases taking the opposite view; In re Skaggs, 349 B.R. 594, 599-600 (Bankr.E.D.Mo.2006); In re Harris, 353 B.R. 304 (Bankr.E.D.Okla. 2006). See also In re Singletary, 354 B.R. 455, 468 (interpreting scheduled to refer to the petition, but finding that the date of the filing of the motion to dismiss, not the petition, is relevant in the means test analysis). . The term \"nonrecourse” has been defined as the \"status of a person who holds an instrument which gives him no legal right against prior endorsers or the drawer to compel payment if the instrument is dishonored.” Black’s Law Dictionary (5th Edition 1979). Thus, the term \"nonrecourse” means that the lienor may look only to the property that is subject to his lien to satisfy his debt and cannot look to the debtor personally for payment. In re Hixson Chevrolet Co., 20 B.R. 108, 110 (Bankr.N.D.Tex.1982)." } ]

[ { "docid": "22985021", "title": "", "text": "ambiguous, we consider Congress’s intent only to be certain that the statute’s plain meaning does not lead to “absurd” results. Lamie, 540 U.S. at 534, 124 S.Ct. 1023. A. Statutory Language Although the precedent runs both ways, the vast majority of bankruptcy courts to consider the issue have concluded that the plain language of section 707(b)(2) permits a Chapter 7 debtor to deduct payments on a secured debt even when the debtor plans to surrender the collateral underlying that debt. See, e.g., In re Norwood-Hill, 403 B.R. 905, 910 (Bankr.M. D.Fla.2009); In re Crawley, No. 08-14419-SSM, 2009 WL 902359, at *3 (Bankr.E.D.Va. Feb. 23, 2009); In re Hayes, 376 B.R. 55, 63 (Bankr.D.Mass.2007); In re Hartwick, 359 B.R. 16, 19-20 (Bankr.D.N.H.2007); Randle, 358 B.R. at 363-64; In re Sorrell, 359 B.R. 167, 186 (Bankr.S.D.Ohio 2007); In re Haar, 360 B.R. 759, 766-67 (Bankr.N.D.Ohio 2007); In re Chang, No. 07-50484-ASW, 2007 WL 3034679, at *3 (Bankr.N.D.Cal. Oct. 16, 2007); In re Walker, No. 05-15010-WHD, 2006 WL 1314125, at *4 (Bankr.N.D.Ga. May 1, 2006). But see, e.g., In re Naut, No. 07-20280REF, 2008 WL 191297, at *8 (Bankr.E.D.Pa. Jan. 22, 2008); In re Harris, 353 B.R. 304, 309-310 (Bankr.E.D.Okla.2006); In re Skaggs, 349 B.R. 594, 599-600 (Bankr.E.D.Mo.2006). The courts have focused in particular on two aspects of the text: the significance of the phrase “scheduled as contractually due” and the forward-looking nature of the reference to the period “following the date of the petition.” See, e.g., Hayes, 376 B.R. at 61-64; Haar, 360 B.R. at 764-66. The Trustee asserts that, read in combination, the two phrases call for a projection of the actual payments the debtor will make on secured debts after the bankruptcy proceedings have ended. She emphasizes that, in many cases, nothing remains “contractually due” after a debtor surrenders the collateral securing a debt and points out that, even if a deficiency payment is owed, “the remaining liability is not ‘contractually due to [a] secured creditor,’ as required by the statute.” We turn to an evaluation of these arguments. 1. “Scheduled as Contractually Due” At the time a debtor files" }, { "docid": "12927560", "title": "", "text": "of 2005, the meaning of § 707(b)(2)(A)(iii)(I) has been highly contested and two polar opposite schools of thought have emerged. The two most commonly adopted approaches are typically referred to as the “snapshot” approach and the “future oriented” approach. The first line of cases reasons that the plain language of § 707(b) (2) (A) (iii) (I) was meant to create a “snapshot” of the debt- or’s finances as of the petition date and does not factor into consideration a debt- or’s future intentions. It is of importance to note, that the majority of cases in which the “snapshot” approach has been adopted, have been within the context of a chapter 7 case. See In re Rudler, 388 B.R. 433 (1st Cir. BAP 2008); In re Thomas, 395 B.R. 914 (6th Cir. BAP 2008); In re Ralston, 400 B.R. 854 (Bankr.M.D.Fla. Feb.10, 2009)(holding “[A]s the function of the means test is to be a mechanical formula for establishing a presumptive bar to obtaining relief in a Chapter 7 case, it is fitting that the deductions should be bright line measurements.”); In re Parada, 391 B.R. 492 (Bankr.M.D.Fla.2008); In re Castillo, No. 08-10878, 2008 WL 4544467 (Bankr.S.D.Fla. Oct. 10, 2008); In re Burmeister, 378 B.R. 227, 231 (Bankr.N.D.Ill.2007)(reasoning that Congress meant the disposable income calculation under BAPCPA to be mechanical and held that § 707(b)(2)(A)(iii)(I) is clear on its face in requiring deductions based on payments that are “contractually due.”); In re Hayes, 376 B.R. 55 (Bankr.D.Mass.2007); In re Benedetti, 372 B.R. 90 (Bankr.S.D.Fla.2007)(“a snapshot view of the Debtor’s expenses on the date of filing makes sense in the context of a Chapter 7 case.”); In re Kelvie, 372 B.R. 56 (Bankr.D.Idaho 2007); In re Wilkins, 370 B.R. 815 (Bankr.C.D.Cal.2007); In re Kogler, 368 B.R. 785 (Bankr.W.D.Wis.2007); In re Longo, 364 B.R. 161 (Bankr.D.Conn.2007); In re Mundy, 363 B.R. 407 (Bankr.M.D.Pa.2007); In re Hartwick, 359 B.R. 16 (Bankr.D.N.H.2007); In re Sorrell, 359 B.R. 167 (Bankr.S.D.Ohio 2007); In re Randle, 358 B.R. 360 (Bankr.N.D.Ill.2006); In re Walker, 2006 WL 1314125 (Bankr.N.D.Ga.2006); In re Oliver, 2006 WL 2086691, at *3 (Bankr.D.Or. June 29, 2006)(reasoning" }, { "docid": "22985022", "title": "", "text": "In re Naut, No. 07-20280REF, 2008 WL 191297, at *8 (Bankr.E.D.Pa. Jan. 22, 2008); In re Harris, 353 B.R. 304, 309-310 (Bankr.E.D.Okla.2006); In re Skaggs, 349 B.R. 594, 599-600 (Bankr.E.D.Mo.2006). The courts have focused in particular on two aspects of the text: the significance of the phrase “scheduled as contractually due” and the forward-looking nature of the reference to the period “following the date of the petition.” See, e.g., Hayes, 376 B.R. at 61-64; Haar, 360 B.R. at 764-66. The Trustee asserts that, read in combination, the two phrases call for a projection of the actual payments the debtor will make on secured debts after the bankruptcy proceedings have ended. She emphasizes that, in many cases, nothing remains “contractually due” after a debtor surrenders the collateral securing a debt and points out that, even if a deficiency payment is owed, “the remaining liability is not ‘contractually due to [a] secured creditor,’ as required by the statute.” We turn to an evaluation of these arguments. 1. “Scheduled as Contractually Due” At the time a debtor files a bankruptcy petition and completes Form B22A, which includes the means test calculation and the inquiry about secured debts that are “scheduled as contractually due,” see supra note 5, the debtor will not yet have given up any secured property identified for surrender in his or her Statement of Intention. Thus, even if the debtor plans to surrender a house on which he is paying a mortgage, he will at that point still have “contractually due” payments that are “scheduled” to be paid during the upcoming months. This is so whether or not the debtor has already defaulted on the mortgage by failing to make such payments in previous months because the fact of default does not release him from the ongoing obligation. See Randle, 358 B.R. at 365 (“[T]he debtor must fill out Form B22A as of the petition date, and on that date her mortgage payments were ‘due’ under the contract whether the debtor planned to make them in the future or not.”). The instructions on Form B22A confirm that the debtor is" }, { "docid": "21195869", "title": "", "text": "of CMI in an effort to demonstrate special circumstances and rebut the presumption of abuse. Id. at 628-29. The debtors argued that, unlike their chapter 7 case, in a case under chapter 13, their monthly child support payments would not be included as income and their 401(k) contributions and loan repayments would be deductible expenses. Id. Accordingly, the debtors argued that even if their case was converted to one under chapter 13, the distribution to general unsecured creditors would be zero. Id. at 628. The court in Johns rejected the debtors attempt to examine what would happen in a chapter 13 case, simply noting that: This Court need not examine what possible return the Debtors’ unsecured creditors would receive in a Chapter 13. The Debtors filed for bankruptcy relief under Chapter 7 of the Bankruptcy Code, and this Court will examine their circumstances pursuant to § 707(b)(2)(B) to determine if the Debtors have overcome their burden in rebutting the presumption of abuse in the present case. Id. at 629. Despite the lack of case law addressing the issue presented to the Court today, courts throughout the country have addressed a related issue: namely, whether a debtor may include in the means test calculation payments on secured debts if the debtor intends to surrender the collateral after filing the case. Without ruling on this issue (which is not before the Court in this Case), the Court notes that the overwhelming majority of the cases have permitted such action in the context of ruling on a motion to dismiss a chapter 7 case under section 707(b)(2). See, e.g., In re Longo, 364 B.R. 161, 164-66 (Bankr. D.Conn.2007); In re Hartwick, 359 B.R. 16, 21-22 (Bankr.D.N.H.2007); In re Sorrell, 359 B.R. 167, 184-87 (Bankr.S.D.Ohio 2007); In re Randle, 358 B.R. 360, 362-66 (Bankr.N.D.Ill.2006); In re Simmons, 357 B.R. 480, 483-86 (Bankr.N.D.Ohio 2006); In re Walker, No. 05-15010, 2006 WL 1314125, at **2-8 (Bankr.N.D.Ga. May 1, 2006); see also In re Singletary, 354 B.R. 455, 458 (Bankr.S.D.Tex.2006) (holding that, although the intent to surrender does not extinguish a debtor’s right to deduct secured payments" }, { "docid": "15973735", "title": "", "text": "it takes into account payments required under the contract that are to made in each of the sixty months following the petition date. But it is clear from the plain language of the provision that this determination is to be made at the time the petition is filed. In re Haar, 360 B.R. at 766 (“the 60-month constraint ... simply operates to define the period over which the debtor’s ‘contractually due’ payments are averaged.”). In this sense, then, the statute takes a “snap-shot” of the debtor’s situation as of the petition date. See In re Kogler, 368 B.R. at 791; In re Longo, 364 B.R. at 165; In re Haar, 360 B.R. at 767; In re Randle, 358 B.R. at 366; In re Nockerts, 357 B.R. at 504. Nothing in the phrase “following the date of the petition” suggests that the calculation must include only those payments actually made. Instead, the phrase modifies the preceding portion of the statute which refers to those payments that are “scheduled as contractually due.” ... the word “scheduled” ... implies the possibility that the payments may not be made as required under the contract, either because the debtor will surrender the collateral or because the payments might be modified and paid through a Chapter 13 plan. If the intent were to permit only those payments that would actually be made in the post-petition period, Congress could have specified that the payments to be deducted are only those payments to be made on secure debts that the debtor intends to reaffirm. Walker, 2006 WL 1314123 at *4, 2006 Bankr.LEXIS 845 at *11; see also In re Hartwick, 359 B.R. 16, 19 (Bankr.D.N.H. 2007); In re Randle, 358 B.R. 360, 363 (Bankr.N.D.Ill.2006); In re Singletary, 354 B.R. at 471. In sum, § 707(b)(2)(A)(iii)(I) is not ambiguous. On the contrary, it is perfectly clear — debtors may deduct, for purposes of the means test and on Form 22A, payments to their secured creditors that are required under contract to be paid in each of the sixty months after the date the petition is filed. See In re" }, { "docid": "15973728", "title": "", "text": "with a certain amount of interest, for a set number of months into the future. In re Walker, 2006 WL 1314123 at *3, 2006 Bankr.LEXIS 845 at *9 (Bankr.N.D.Ga. 2006). There is no dispute as to the nature of the Debtors’ obligations under the contracts between the Debtors and the holders of the mortgages. At the time the petition was filed, the Debtors were contractually obliged to make monthly mortgage payments in fixed amounts. The more interesting question, however, is what to make of the phrase [“scheduled as contractually due”] as a whole, i.e. what meaning to give to the phrase “scheduled as” in reference to those payments which are “contractually due.” Recent case law appears to split into two main interpretive camps. A compelling analysis is provided by those courts which have concluded that “[a]lthough ‘scheduled’ is not a statutorily-defined term, it is repeatedly given a specific meaning under the Code rather than the general meaning.... Therefore, ... the word ‘scheduled’ in § 707(b) (2) (A) (iii) (I) ... refer[s] to a debt being listed on the Debtors’ official schedules .... ” In re Singletary, 354 B.R. 455, 467 (Bankr.S.D.Tex.2006); see also In re Haar, 360 B.R. 759, 765 (Bankr.N.D.Ohio 2007); In re Ray, 362 B.R. 680, 685 (Bankr.D.S.C.2007); In re Harris, 353 B.R. 304, 309 (Bankr.E.D.Okla.2006); In re Skaggs, 349 B.R. 594, 599 (Bankr.D.Mo. 2006). The other view, endorsed with excellent analyses by the courts in, inter alia, In re Walker, 2006 WL 1314125, 2006 Bankr.LEXIS 845, and In re Nockerts, 357 B.R. 497 (Bankr.E.D.Wis.2006), adopts the common, dictionary-defined meaning of “scheduled” as “planned for a certain date.” Walker, 2006 WL 1314123 at *3, 2006 Bankr.LEXIS 845 at *9. Those courts conclude that the statute refers simply to payments “scheduled for a certain date.” Id. This Court is persuaded that the conclusion reached by the Walker and Noc-kerts courts is the correct one. As the Nockerts court explained: ... [Ajlthough the Bankruptcy Code uses the phrase “scheduled as contractually due” only once (in § 707(b)(2)(A)(iii)), it also uses the phrase “scheduled as” only one time— in § 1111(a)...." }, { "docid": "21181259", "title": "", "text": "the Trustee or the Court in deciding how to determine such payments. The statute requires the Debtors to deduct the amounts “scheduled as contractually due” on average during the sixty months following the date of the petition. The statute does not condition the deduction of such payments on the Debtors’ intent to retain the collateral for the secured claim. It does not say that the Debtors may only deduct such payments if they are actually making the payments. It does not make reference to the statement of intention filed by the Debtors pursuant to § 521(a)(2)(A). Rather, the statute requires the Debtors, the Trustee and the Court to consider only the amounts due under the contracts themselves. In re Randle, 358 B.R. 360, 362-63 (Bankr.N.D.Ill.2006); In re Walker, No. 05-15010-WHD, 2006 WL 1314125, at *4 (Bankr.N.D.Ga. May 1, 2006). The plain meaning of the statute is that the means test includes a deduction from current monthly income for all scheduled contractual payments to secured creditors regardless of a debtor’s intent with respect to retention of the collateral, reaffirmation of the secured debt or actual payment of the secured debt. Randle, 358 B.R. at 362-63; Walker, 2006 WL 1314125, at *4. Where the plain meaning of a statute is clear, it is controlling unless the literal application of the language produces a result demonstrably at odds with the intentions of its drafters. U.S. v. Ron Pair Enters., Inc., 489 U.S. 235, 242, 109 S.Ct. 1026, 103 L.Ed.2d 290 (1989). Several courts have observed that a primary intent of Congress in the passage of BAPCPA was to ensure that those debtors who can pay their debts do so. In re Skaggs, 349 B.R. 594, 600 (Bankr.E.D.Mo.2006) (citing In re Hardacre, 338 B.R. 718, 725 (Bankr.N.D.Tex.2006)); In re Harris, 353 B.R. 304, 309-10 (Bankr.E.D.Okla.2006). Those courts have held that since the purpose of the means test was to implement Congressional intent to limit relief under chapter 7 for debtors who can pay their debts, permitting deductions for payments on secured debts when a debtor intends to surrender the collateral would be at odds" }, { "docid": "21195871", "title": "", "text": "under the means test, the actual surrender of the collateral does do so); accord In re Nockerts, 357 B.R. 497, 500-05 (Bankr.E.D.Wis.2006). But see In re Harris, 353 B.R. 304, 309 (Bankr. E.D.Okla.2006) (considering the intent of the debtors because “[t]he means test was intended to ‘ensure that those who can afford to repay some portion of their unsecured debts [be] required to do so.’ ”) (quoting In re Hardacre, 338 B.R. 718, 725 (Bankr.N.D.Tex.2006)); accord In re Skaggs, 349 B.R. 594 (Bankr.E.D.Mo. 2006). In support of the conclusion that the intent to surrender does not extinguish a debtor’s right to deduct secured payments under the means test, courts have relied upon the Congressional intent animating the means test. The means test was designed to remove judicial discretion by providing “a mechanical estimate of the debtor’s abilities to fund a Chapter 13 plan.... ” Walker, 2006 WL 1314125, at *6. To accomplish its goal, Congress chose to base the means test on historic income and expense figures ..., as opposed to figures that may change with the passage of time or with a change in the debtor’s lifestyle. This choice indicates an intent to apply the means test to measure the debtor’s need for Chapter 7 relief at the time of the filing, without regard to future events or relief that would be available under Chapter 7. Id. at *5. Because the means test is based upon historical income and expenses, it was “not intended to ... produce the most accurate prediction of the debtor’s actual ability to fund a chapter 13 plan....” Id. at *6; accord In re Miller, 361 B.R. 224, 234-35 (Bankr.N.D.Ala.2007). Rather, that forward-looking analysis belongs in section 707(b)(3)’s totality of the circumstances test, where future or foreseeable circumstances may be considered. See, e.g., Hartwick, 359 B.R. at 21-22. The court in Hartwick has accurately summarized the interplay between sections 707(b)(2) and 707(b)(3): ‘Congress’ intent in adding the Means Test was to create a “mechanical” formula for presuming abuse of Chapter 7.’ Randle, 358 B.R. at 363-64.... ‘Congress’ intent to use a standardized or mechanical test" }, { "docid": "18522511", "title": "", "text": "case-by-case adjustment based on a debtor’s individual circumstances for the presumption of abuse that Congress rejected. In re Randle, 358 B.R. 360, 364 (Bankr.N.D.Ill.2006). See In re Benedetti, 372 B.R. at 96 (“[I]f Congress intended to limit secured debt payments contractually due from debtors on the petition date to those where actual future payments will be made in Form B22C calculations, it knew how to do so, as reflected by the inclusion of the terms ‘actual monthly expenses’ and ‘actual expenses’ elsewhere within 11 U.S.C. § 707(b)(2)(A)(ii)(I) and (II).” (quoting In re Oliver, 2006 WL 2086691 at *3 (Bankr. D.Or.2006))); In re Walker, 2006 WL 1314125 (Bankr.N.D.Ga.2006); In re Hartwick, 352 B.R. 867, 870 (Bankr.D.Minn.2006) (“Application of the means test is not left by the BAPCPA legislation to judicial discretion.”), aff'd in relevant part, rev’d in part, sub nom. Fokkena v. Hartwick, 373 B.R. 645, 654 (D.Minn.2007) (“[T]he plain language of § 707(b)(2)(A)(iii) dictates that a debtor must be permitted to deduct secured payments on property even if that debtor intends to surrender that property post-petition.”). The other line of cases interprets the “unambiguous” language of section 707(b)(2)(A)(iii)(I) to mean that only those expenses that the debtor reasonably expects to be paid during the next sixty months may be appropriately deducted, and that it is inappropriate to deduct from disposable income payments for collateral that will be surrendered. It ... seems that the better construction of “scheduled as contractually due” would consider the debtors’ intention to surrender the collateral and make no future payments to the creditor. This construction would not support deduction of average secured credit payments on debt secured by collateral that the debtor proposes to surrender. This construction is also in keeping with the overall purpose of establishing a formula that will give rise to a meaningful presumption of abuse or not. In re Ray, 362 B.R. 680, 685 (Bankr.D.S.C.2007). See In re Harris, 353 B.R. 304 (Bankr.E.D.Okla.2006); In re Skaggs, 349 B.R. 594 (Bankr.E.D.Mo.2006). Having reviewed the cases cited above, and having considered the unambiguous language of the statute, I believe that those cases adopting the" }, { "docid": "18522709", "title": "", "text": "not be “contractually due” post-petition. See, e.g., In re Ballard, No. 07-61486, 2008 Bankr.LEXIS 882 at *13-14, 2008 WL 783408 at *5 (Bankr.March 25, 2008) (holding that no amount is contractually due on a claim secured by a judgment lien because the contract has merged into the judgment); In re Anderson, 383 B.R. 699, 707 (Bankr.S.D.Ohio 2008) (“This court construes the term ‘contractually due’ as modifying ‘secured debt’ to differentiate between voluntarily secured debts such as mortgages and security agreements and involuntarily secured debts such as judgment liens and statutory liens.”). Therefore, in this court’s view, it is not appropriate to interpret the term “scheduled as” in § 707(b) (2) (A) (iii) (I) as making reference to a debtor’s schedules and statements required to be filed by § 521(a)(l-2) because: (1) a statement of intention (or a Chapter 13 plan) is not a schedule; (2) the context of the statute does not indicate any reference to the schedules and statements required by § 521(a)(l — 2); and (3) no bankruptcy schedule exists that lists secured debts that are contractually due post-petition. The other viewpoint, that the term “scheduled” should be given its ordinary dictionary definition, is exemplified in the case of In re Walker, No. 05-15010, 2006 Bankr.LEXIS 845, 2006 WL 1314125 (Bankr.N.D.Ga. May 1, 2006). There, the court looked to Webster’s Dictionary to interpret the word “scheduled” as “to plan for a certain date.” Id. at *9, 2006 WL 1314125 at *3. In context, the phrase “scheduled as contractually due” meant “those payments that the debtor will be required to make on certain dates in the future under the contract.” Id. This is a natural reading. E.g., Stapleton v. Mundy (In re Mundy), 363 B.R. 407, 412-13 (Bankr.M.D.Pa.2007) (“To interpret the common verb ‘scheduled’ as a reference to the proper noun ‘Schedule’ as used in the Bankruptcy Code is a grammatical exercise too complex and strenuous to be considered ‘plain.’ ”); In re Sorrell, 359 B.R. 167 (Bankr.S.D.Ohio 2007) (“[T]he words ‘scheduled as’ .... do not refer to the bankruptcy schedules.”); In re Randle, 358 B.R. 360, 366 (Bankr.N.D.Ill.2006)" }, { "docid": "15973729", "title": "", "text": "listed on the Debtors’ official schedules .... ” In re Singletary, 354 B.R. 455, 467 (Bankr.S.D.Tex.2006); see also In re Haar, 360 B.R. 759, 765 (Bankr.N.D.Ohio 2007); In re Ray, 362 B.R. 680, 685 (Bankr.D.S.C.2007); In re Harris, 353 B.R. 304, 309 (Bankr.E.D.Okla.2006); In re Skaggs, 349 B.R. 594, 599 (Bankr.D.Mo. 2006). The other view, endorsed with excellent analyses by the courts in, inter alia, In re Walker, 2006 WL 1314125, 2006 Bankr.LEXIS 845, and In re Nockerts, 357 B.R. 497 (Bankr.E.D.Wis.2006), adopts the common, dictionary-defined meaning of “scheduled” as “planned for a certain date.” Walker, 2006 WL 1314123 at *3, 2006 Bankr.LEXIS 845 at *9. Those courts conclude that the statute refers simply to payments “scheduled for a certain date.” Id. This Court is persuaded that the conclusion reached by the Walker and Noc-kerts courts is the correct one. As the Nockerts court explained: ... [Ajlthough the Bankruptcy Code uses the phrase “scheduled as contractually due” only once (in § 707(b)(2)(A)(iii)), it also uses the phrase “scheduled as” only one time— in § 1111(a).... While it is readily apparent from the [] terms and the context of the section that § 1111(a) is referring to the bankruptcy schedules, there is no similar reference or apparent context in § 707(b)(2)(A)(iii). Broadening the review to include the Bankruptcy Code’s references to a claim or debt being “scheduled” turns up two provisions that obviously mean “listed on the bankruptcy schedules”: § 523(a)(3) (discharge of a debt that is “neither listed nor scheduled under section 521(1)”); and § 554(c) (deemed abandonment of property “scheduled under section 521(1)”), and two provisions which obviously do not: § 524(k)(3)(H)(ii) (suggested reaffirmation agreement language “describing the repayment schedule with the number, amount, and due dates or period of payments scheduled to repay the debts reaffirmed to the extent then known by the disclosing party”); and § 1326(a)(1)(B) (debtor shall make pre-confirmation payments “scheduled in a lease of personal property directly to the lessor”). This exercise in statutory analysis compels the conclusion that “scheduled as contractually due” does not refer to the bankruptcy schedules. When describing the bankruptcy" }, { "docid": "12927561", "title": "", "text": "be bright line measurements.”); In re Parada, 391 B.R. 492 (Bankr.M.D.Fla.2008); In re Castillo, No. 08-10878, 2008 WL 4544467 (Bankr.S.D.Fla. Oct. 10, 2008); In re Burmeister, 378 B.R. 227, 231 (Bankr.N.D.Ill.2007)(reasoning that Congress meant the disposable income calculation under BAPCPA to be mechanical and held that § 707(b)(2)(A)(iii)(I) is clear on its face in requiring deductions based on payments that are “contractually due.”); In re Hayes, 376 B.R. 55 (Bankr.D.Mass.2007); In re Benedetti, 372 B.R. 90 (Bankr.S.D.Fla.2007)(“a snapshot view of the Debtor’s expenses on the date of filing makes sense in the context of a Chapter 7 case.”); In re Kelvie, 372 B.R. 56 (Bankr.D.Idaho 2007); In re Wilkins, 370 B.R. 815 (Bankr.C.D.Cal.2007); In re Kogler, 368 B.R. 785 (Bankr.W.D.Wis.2007); In re Longo, 364 B.R. 161 (Bankr.D.Conn.2007); In re Mundy, 363 B.R. 407 (Bankr.M.D.Pa.2007); In re Hartwick, 359 B.R. 16 (Bankr.D.N.H.2007); In re Sorrell, 359 B.R. 167 (Bankr.S.D.Ohio 2007); In re Randle, 358 B.R. 360 (Bankr.N.D.Ill.2006); In re Walker, 2006 WL 1314125 (Bankr.N.D.Ga.2006); In re Oliver, 2006 WL 2086691, at *3 (Bankr.D.Or. June 29, 2006)(reasoning “[I]f Congress intended to limit secured debt payments contractually due from debtors on the petition date to those where actual future payments will be made ..., it knew how to do so.”). The second line of cases utilizes a “future oriented” approach, in which only those expenses which the debtor reasonably expects to pay over the sixty month period may be properly deducted. Just as the courts that have adopted the “snapshot approach” have done so primarily in the context of a Chapter 7, the courts that have adopted the “future oriented” approach have done so mainly within the context of a Chapter 13. In re Holmes, 395 B.R. 149 (Bankr.M.D.Fla.2008); In re Vernon, 385 B.R. 342 (Bankr.M.D.Fla.2008); In re Kalata, 2008 WL 552856 (Bankr.E.D.Wis. Feb.27, 2008); In re Burden, 380 B.R. 194 (Bankr.W.D.Mo.2007); In re Spurgeon, 378 B.R. 197 (Bankr.E.D.Tenn.2007); In re McGillis, 370 B.R. 720 (Bankr.W.D.Mich.2007); In re Ray, 362 B.R. 680 (Bankr.D.S.C.2007); In re Edmunds, 350 B.R. 636 (Bankr.D.S.C.2006); In re Love, 350 B.R. 611 (Bankr.M.D.Ala.2006); In re Harris, 353 B.R. 304" }, { "docid": "22985020", "title": "", "text": "our examination of the statute must begin “where all such inquiries must begin: with the language of the statute itself.” United States v. Ron Pair Enters., Inc., 489 U.S. 235, 241, 109 S.Ct. 1026, 103 L.Ed.2d 290 (1989); Stornawaye Fin. Corp. v. Hill (In re Hill), 562 F.3d 29, 32 (1st Cir.2009). If the statute’s language is plain, “ ‘the sole function of the courts — at least where the disposition required by the text is not absurd- — -is to enforce it according to its terms.’ ” Lamie v. United States, 540 U.S. 526, 534, 124 S.Ct. 1023, 157 L.Ed.2d 1024 (2004) (quoting Hartford Underwriters Ins. Co. v. Union Planters Bank, N.A., 530 U.S. 1, 6, 120 S.Ct. 1942, 147 L.Ed.2d 1 (2000)); Ron Pair, 489 U.S. at 242, 109 S.Ct. 1026. We thus look first to the specific language at issue, which defines deductible secured debt as amounts that are “scheduled as contractually due to secured creditors in each of the 60 months following the date of the petition.” Unless that language is ambiguous, we consider Congress’s intent only to be certain that the statute’s plain meaning does not lead to “absurd” results. Lamie, 540 U.S. at 534, 124 S.Ct. 1023. A. Statutory Language Although the precedent runs both ways, the vast majority of bankruptcy courts to consider the issue have concluded that the plain language of section 707(b)(2) permits a Chapter 7 debtor to deduct payments on a secured debt even when the debtor plans to surrender the collateral underlying that debt. See, e.g., In re Norwood-Hill, 403 B.R. 905, 910 (Bankr.M. D.Fla.2009); In re Crawley, No. 08-14419-SSM, 2009 WL 902359, at *3 (Bankr.E.D.Va. Feb. 23, 2009); In re Hayes, 376 B.R. 55, 63 (Bankr.D.Mass.2007); In re Hartwick, 359 B.R. 16, 19-20 (Bankr.D.N.H.2007); Randle, 358 B.R. at 363-64; In re Sorrell, 359 B.R. 167, 186 (Bankr.S.D.Ohio 2007); In re Haar, 360 B.R. 759, 766-67 (Bankr.N.D.Ohio 2007); In re Chang, No. 07-50484-ASW, 2007 WL 3034679, at *3 (Bankr.N.D.Cal. Oct. 16, 2007); In re Walker, No. 05-15010-WHD, 2006 WL 1314125, at *4 (Bankr.N.D.Ga. May 1, 2006). But see, e.g.," }, { "docid": "19150373", "title": "", "text": "the North Carolina tax return is based on the federal return, so the Court will use the same taxable income. . The Court uses the formula: (1/6 x 2006 actual rate) + (5/6 x 2007 estimated rate). . The insured persons on the policies are the male Debtor, the Debtors’ son, the Debtors' daughter, and the male Debtor’s step-daughter. . \"Contractually due” may be defined as when a debtor is \"contractually obligated to make payments in some or all of the 60 months subsequent to the time [he or she] filed [a] bankruptcy petition.\" In re Haar, 360 B.R. 759, 764 (Bankr.N.D.Ohio 2007). Numerous cases have considered deductions by debtors for secured debts on collateral that the debtors intended to surrender post-petition. There are three schools of thought on whether the debtors should be allowed to take such a deduction under Section 707(b)(2)(A)(iii). See In re Ray, 362 B.R. 680, 685 (Bankr.D.S.C.2007). The first line of cases has allowed debtors to deduct for secured payments on property that they intend to surrender post-petition. See In re Sorrell, 359 B.R. 167, 184-185 (Bankr.S.D.Ohio 2007); In re Walker, No. 05-15010, 2006 WL 1314125, *4(Bankr.N.D.Ga. May 1, 2006); In re Randle, 358 B.R. 360, 364 (Bankr.N.D.Ill.2006); In re Simmons, 357 B.R. 480, 483-484 (Bankr.N.D.Ohio 2006). These cases hold that the plain language of \"scheduled as contractually due” allows a debtor to deduct all payments due under contract on secured debts as of the petition date. These cases use the petition date as the date to determine whether a secured payment is deductible, regardless of whether the debtor intends to later surrender the property. The second line of cases holds that even though a stated intention to surrender collateral does not extinguish the debtor's right to deduct for the secured payments, for purposes of a motion to dismiss for abuse under Section 707(b), \"the relevant date on which calculations should be based is the date of the filing of the motion [to dismiss], not the date of the filing of the petition.” In re Singletary, 354 B.R. 455, 458 (Bankr.D.Tex.2006); see also In re" }, { "docid": "746411", "title": "", "text": "is without considering the deduction claimed by the debtor on the basis of abandoning the collateral. The cases cited in opposition support the proposition that determining disposable income is governed by Schedules I and J and rely on the snapshot approach, meaning disposable income is determined as of the date of commencement. Most of the case law cited by the Debtors deal with Chapter 7 cases, which for obvious reasons are inapposite to the issue under consideration. For example, some courts have held that the deduction statute in question, as part of the Chapter 7 means test, would still permit the debtor to deduct future payments even though he surrendered the collateral and is no longer' obligated to make such payments. In re Parada, No. 07-15938-BKR-LMI, 2008 WL 126626 (Bankr.S.D.Fla. Jan.10, 2008); In re Benedetti, 372 B.R. 90 (Bankr.S.D.Fla.2007); In re Hartwick, 352 B.R. 867 (Bankr.D.Minn. 2006), aff'd in part, rev’d in part, Fokkena v. Hartwick, 373 B.R. 645 (D.Minn.2007); In re Simmons, 357 B.R. 480 (Bankr.N.D.Ohio 2006); In re Nockerts, 357 B.R. 497 (Bankr.E.D.Wis.2006); In re Randle, 358 B.R. 360 (Bankr.N.D.Ill.2006) See also In re Walker, No. 05-15010-WHD, 2006 WL 1314125 (Bankr.N.D.Ga. May 1, 2006). For instance, the court in the case of In re Burden, 380 B.R. 194 (Bankr.W.D.Mo. 2007), permitted a debtor to deduct monthly mortgage and car payments for purposes of the means test despite the debt- or’s stated intent to surrender the home and vehicle. The policy aim of Chapter 7 is completely different from the policy aim of Chapter 13; therefore the allowance of a deduction under Chapter 7 has no relevance under a Chapter 13 plan Crittendon, 2006 WL 2547102, at *3. The only Chapter 13 cases cited by the Debtors were In re Frederickson, 375 B.R. 829 (8th Cir. BAP 2007) and In re Burmeister, 378 B.R. 227 (Bankr.N.D.Ill.2007). In the case of Frederickson, the court held that projected disposable income used in 11 U.S.C. § 1325(b) must be calculated based on Form B22C and extrapolated over the applicable commitment period. The Burmeister court emphasized the significance of the phrase “contractually due”" }, { "docid": "19150374", "title": "", "text": "re Sorrell, 359 B.R. 167, 184-185 (Bankr.S.D.Ohio 2007); In re Walker, No. 05-15010, 2006 WL 1314125, *4(Bankr.N.D.Ga. May 1, 2006); In re Randle, 358 B.R. 360, 364 (Bankr.N.D.Ill.2006); In re Simmons, 357 B.R. 480, 483-484 (Bankr.N.D.Ohio 2006). These cases hold that the plain language of \"scheduled as contractually due” allows a debtor to deduct all payments due under contract on secured debts as of the petition date. These cases use the petition date as the date to determine whether a secured payment is deductible, regardless of whether the debtor intends to later surrender the property. The second line of cases holds that even though a stated intention to surrender collateral does not extinguish the debtor's right to deduct for the secured payments, for purposes of a motion to dismiss for abuse under Section 707(b), \"the relevant date on which calculations should be based is the date of the filing of the motion [to dismiss], not the date of the filing of the petition.” In re Singletary, 354 B.R. 455, 458 (Bankr.D.Tex.2006); see also In re Zak, 361 B.R. 481, 484-485 (Bankr.N.D.Ohio 2007); In re Nockerts, 357 B.R. 497, 500-501 (Bankr.E.D.Wis.2006). The third line of cases holds that a debtor's schedules form the basis from which the Court should determine whether a debt is \"scheduled as contractually due” and that a debtor has an obligation to make sure that his schedules are current. \"To focus on the single term 'contractually due’ without due consideration of the import of the term 'scheduled' and the phrase 'in each of the 60 months following the date of the petition’ will miss the actual meaning and the intent of § 707(b)(2).” In re Skaggs, 349 B.R. 594, 599-600 (Bankr.D.Mo.2006) (internal citations omitted); see also In re Harris, 353 B.R. 304, 308-309 (Bankr.D.Okla.2006) (rejecting Walker and finding that the means test was designed to require that debtors who can pay do so). . In total, the Debtors’ deductions on Form B22A should be $677.46 less than what was submitted. A recalculated Form B22A would show $169.76 per month in disposable income, which is sufficient for the" }, { "docid": "18522713", "title": "", "text": "is still “contractually due.” In sum, taken in its proper context, the term “scheduled as contractually due” means those secured debt obligations incurred by the debtor pre-petition, for which installment payments are scheduled to be due post-petition under the applicable debt instrument. b. “Following the Date of the Petition” The USTE asserts that the language of § 707(b)(2)(A)(iii)(I) requires the court to look into the future to determine what debts are “scheduled as contractually due to secured creditors in each month of the 60 months following the date of the petition.” (emphasis added). When a debtor surrenders secured collateral, the USTE argues, no secured debt payments will be made “following the date of the petition.” In the USTE’s view, § 707(b)(2)(A)(iii)(I) should not be interpreted based on past events. The USTE’s interpretation, however, is not warranted by the language of the statute. Ascertaining what payments are due “following the date of the petition” must be determined with reference to those debts that are “scheduled as contractually due.” In re Hayes, 376 B.R. at 64 (“Nothing in the phrase ‘following the date of the petition’ suggests that the calculation must include only those payments actually made. Instead, the phrase modifies the preceding portion of the statute which refers to those payments that are ‘scheduled as contractually due.’ ”). Nothing in § 707(b)(2)(A)(iii)(I) references a debtor’s potential surrender of collateral post-petition. E.g., In re Radler, 388 B.R. 433, 438 (1st Cir. BAP 2008) (“[A] ‘snap shot’ of the debtor’s situation as of the petition date is a more appropriate approach.... If Congress intended otherwise, it could easily have said that the only deductible payments are those that the debtor intends to reaffirm.”); Randle v. Neary, (In re Randle), No. 07-C631, 2007 U.S.Dist. LEXIS 54985 at *20, 2007 WL 2668727 at *7 (N.D.Ill. July 20, 2007) (noting “the complete absence of any conditions placed on the relevant language ... with regard to whether the debtor intends to redeem, reaffirm, or surrender the collateral underlying the secured debt.”); Sorrell, 359 B.R. at 186 (“Section 707(b)(2)(A)(iii)(I) does not reference any post-petition eventuality ... to adjust" }, { "docid": "15973732", "title": "", "text": "as noted by the court in In re Randle, “[t]here is no bankruptcy schedule that requires the debtor to list ‘all amounts contractually due to secured creditors in each month of the 60 months following the date of the petition.’ ” 358 B.R. 360, 365 (Bankr.N.D.Ill.2006), aff'd Randle v. Neary (In re Randle), 2007 WL 2668727, 2007 U.S. Dist. LEXIS 54985 (N.D.Ill. July 20, 2007). For these reasons, the Court agrees and concludes that the reference to “payments scheduled as contractually due” means those payments required to be made on a monthly basis according to the debtor’s contract with the secured lender. Nevertheless, even if this Court were to conclude that the Trustee’s interpretation of the statute is the appropriate one — i.e., that “scheduled as” refers to the debtor’s bankruptcy schedules — this would “really be a distinction without a difference.” In re Haar, 360 B.R. at 766; see also In re Randle, 358 B.R. at 365. The “scheduling” of a secured debt on the debt- or’s bankruptcy petition does not change the fact that the payments are “contractually due.” In re Haar, 360 B.R. at 764, 765; In re Sorrell, 359 B.R. at 184; In re Randle, 358 B.R. at 365; In re Singletary, 354 B.R. at 468. Nor does declaring an intention to ultimately surrender property to the creditor abrogate a debtor’s contractual obligations. In re Longo, 364 B.R. at 165-66; In re Haar, 360 B.R. at 764; In re Sorrell, 359 B.R. at 184; In re Singletary, 354 B.R. at 467 n. 11, 468; In re Walker, 2006 WL 1314123 at *4, 2006 Bankr.LEXIS 845 at *13-14. The debtor’s contractual liability for the debt is not eliminated upon the surrender of the collateral. At the earliest, it may be eliminated by the entry of the discharge.... In other words, nothing the debtor does or does not do changes the fact that scheduled payments remain contractually due. In re Walker, 2006 WL 1314123 at *4, 2006 Bankr.LEXIS 845, *12-13. B. “Following the date of the petition” The phrase “scheduled as contractually due” does not stand in isolation." }, { "docid": "18522710", "title": "", "text": "debts that are contractually due post-petition. The other viewpoint, that the term “scheduled” should be given its ordinary dictionary definition, is exemplified in the case of In re Walker, No. 05-15010, 2006 Bankr.LEXIS 845, 2006 WL 1314125 (Bankr.N.D.Ga. May 1, 2006). There, the court looked to Webster’s Dictionary to interpret the word “scheduled” as “to plan for a certain date.” Id. at *9, 2006 WL 1314125 at *3. In context, the phrase “scheduled as contractually due” meant “those payments that the debtor will be required to make on certain dates in the future under the contract.” Id. This is a natural reading. E.g., Stapleton v. Mundy (In re Mundy), 363 B.R. 407, 412-13 (Bankr.M.D.Pa.2007) (“To interpret the common verb ‘scheduled’ as a reference to the proper noun ‘Schedule’ as used in the Bankruptcy Code is a grammatical exercise too complex and strenuous to be considered ‘plain.’ ”); In re Sorrell, 359 B.R. 167 (Bankr.S.D.Ohio 2007) (“[T]he words ‘scheduled as’ .... do not refer to the bankruptcy schedules.”); In re Randle, 358 B.R. 360, 366 (Bankr.N.D.Ill.2006) (“[T]he context of this provision ... clearly requires the debtor to list payments ‘scheduled’ under secured debt instru-' ments, virtually all of which call for installment payments that are scheduled to be paid on a monthly basis.”), aff'd, No. 07-C-631, 2008 U.S. Dist LEXIS 54985, 2007 WL 2668727 (N.D.Ill. July 20, 2007). Furthermore, with regard to the surrender of property and § 707(b)(2)(A)(iii)(I)’s requirement that a debt be “contractually due,” the act of surrendering property does not change the debtor’s obligation to make payments under the pre-petition contract. E.g., In re Hayes, 376 B.R. 55, 62 (Bankr.D.Mass. 2007) (“Nor does declaring an intention to ultimately surrender property to the creditor abrogate a debtor’s contractual obligations.”). The entry of a discharge in a bankruptcy case only makes the pre-petition contractual obligation unenforceable as a personal liability of the debtor; the underlying debt is not extinguished and it continues to exist. E.g., 11 U.S.C. § 524(a)(2) (stating that a discharge “operates as an injunction against the commencement or continuation of ... an act, to collect ... such" }, { "docid": "21195870", "title": "", "text": "addressing the issue presented to the Court today, courts throughout the country have addressed a related issue: namely, whether a debtor may include in the means test calculation payments on secured debts if the debtor intends to surrender the collateral after filing the case. Without ruling on this issue (which is not before the Court in this Case), the Court notes that the overwhelming majority of the cases have permitted such action in the context of ruling on a motion to dismiss a chapter 7 case under section 707(b)(2). See, e.g., In re Longo, 364 B.R. 161, 164-66 (Bankr. D.Conn.2007); In re Hartwick, 359 B.R. 16, 21-22 (Bankr.D.N.H.2007); In re Sorrell, 359 B.R. 167, 184-87 (Bankr.S.D.Ohio 2007); In re Randle, 358 B.R. 360, 362-66 (Bankr.N.D.Ill.2006); In re Simmons, 357 B.R. 480, 483-86 (Bankr.N.D.Ohio 2006); In re Walker, No. 05-15010, 2006 WL 1314125, at **2-8 (Bankr.N.D.Ga. May 1, 2006); see also In re Singletary, 354 B.R. 455, 458 (Bankr.S.D.Tex.2006) (holding that, although the intent to surrender does not extinguish a debtor’s right to deduct secured payments under the means test, the actual surrender of the collateral does do so); accord In re Nockerts, 357 B.R. 497, 500-05 (Bankr.E.D.Wis.2006). But see In re Harris, 353 B.R. 304, 309 (Bankr. E.D.Okla.2006) (considering the intent of the debtors because “[t]he means test was intended to ‘ensure that those who can afford to repay some portion of their unsecured debts [be] required to do so.’ ”) (quoting In re Hardacre, 338 B.R. 718, 725 (Bankr.N.D.Tex.2006)); accord In re Skaggs, 349 B.R. 594 (Bankr.E.D.Mo. 2006). In support of the conclusion that the intent to surrender does not extinguish a debtor’s right to deduct secured payments under the means test, courts have relied upon the Congressional intent animating the means test. The means test was designed to remove judicial discretion by providing “a mechanical estimate of the debtor’s abilities to fund a Chapter 13 plan.... ” Walker, 2006 WL 1314125, at *6. To accomplish its goal, Congress chose to base the means test on historic income and expense figures ..., as opposed to figures that may change" } ]

[ { "docid": "12925096", "title": "", "text": "to $1,000. Fla. Const. Art. 10, § 4(a)(2). The Court agrees that the Debtor’s personal property exemption must be limited to $1,000, and the Creditor’s objection will be sustained in part. Any remaining objections to the Debtor’s claims of exemption are overruled. Factual Background The facts in this case are largely uncontested — indeed, most of the facts are matters of public record and subject to the doctrines of res judicata or collateral es-toppel, as they have been laid out in the opinions and orders of trial and appellate courts in Florida and Illinois. Brightwaters Home Michael Davis and Emily Seibel (“Sei-bel”) were married on February 20, 2003. On that same day, Davis transferred approximately $2.2 million from his personal bank accounts to a tenancy by the entire-ties bank account in Florida held in the names of both Davis and Seibel. On February 24, 2003, Davis and Seibel used approximately $1.9 million of these funds to purchase the Brightwaters Home as tenants by the entirety. Seibel contributed no funds to the purchase of the Brightwa-ters Home. On October 30, 2007, the District Court in Tampa entered a judgment finding that the February 20, 2003, transfer of funds into the tenancy by the entire-ties bank account was a fraudulent transfer as to Davis’s known judgment creditor, Brian Dowling, under the Florida Uniform Fraudulent Transfer Statute, Fla. Stat. § 726.101 et seq. Dowling v. Davis, No. 8:06-cv-562-T-27TGW (M.D.Fla. Oct. 30, 2007) (Order and Final Judgment). The relief granted in the District Court’s final judgment was a money judgment against Emily Seibel in the amount of $853,153.72 plus pre-judgment interest. Id. at 2. The District Court also ruled, on summary judgment, that it could not impose an equitable lien on the Brightwaters Home because of the Florida constitutional homestead exemption. Dowling v. Davis, No. 8:06-cv-562-T-27TGW, 2007 WL 1839555 (M.D. Fla. June 25, 2007) (Order on Defendant’s Motion for Summary Judgment) (citing Havoco of Am., Ltd. v. Hill, 790 So.2d 1018 (Fla.2001)). The District Court’s final judgment has been affirmed by the Court of Appeals for the Eleventh Circuit. Dowling v. Davis, 295 Fed.Appx." } ]

[ { "docid": "17675491", "title": "", "text": "Wilcher, 56 B.R. 428, 434 (Bankr.N.D.Ill.1985) (\"The proper mode of discovery which ordinarily must be utilized against a third party who may be liable to the bankruptcy estate for various wrongful acts is contained in the Federal Rules of Civil Procedure, which provide numerous procedural safeguards against unfairness to the party from which discovery is sought.... By contrast, the procedural safeguards provided by Bankruptcy Rule 2004 are minimal.”). At least one court has found that the Bankruptcy Rules do not \"require [Rule 2004] examinations to be transcribed or transcripts to be filed.” In re Thow, 392 B.R. 860, 867 (Bankr.W.D.Wash.2007). . District court and bankruptcy court decisions addressing the relationship between the FDCPA and Bankruptcy Code and Rules have proliferated over the last decade. Published decisions finding that FDCPA claims were not precluded by the Bankruptcy Code include Gamble v. Fradkin & Weber, P.A., 846 F.Supp.2d 377, 381-83 (D.Md.2012) (postdischarge collection); Rios v. Bakalar & Assocs., P.A., 795 F.Supp.2d 1368, 1369-70 (S.D.Fla.2011) (postdischarge collection); Clark v. Brumbaugh & Quandahl, P.C., LLO, 731 F.Supp.2d 915, 919-21 (D.Neb.2010) (automatic stay and discharge injunction violations); Kline v. Mortg. Elec. Sec. Sys., 659 F.Supp.2d 940, 949-51 (S.D.Ohio 2009) (inflated proof of claim); Bacelli v. MFP, Inc., 729 F.Supp.2d 1328, 1336-37 (M.D.Fla.2010) (automatic stay and discharge injunction violations); Evans v. Midland Funding LLC, 574 F.Supp.2d 808, 816-17 (S.D.Ohio 2008) (post-discharge collection); Dougherty v. Wells Fargo Home Loans, Inc., 425 F.Supp.2d 599, 604-06 (E.D.Pa.2006) (postdischarge collection); Marshall v. PNC Bank, N.A. (In re Marshall), 491 B.R. 217, 224-27 (Bankr.S.D.Ohio 2012) (postdischarge collection); Atwood v. GE Money Bank (In re Atwood), 452 B.R. 249, 251-53 (Bankr.D.N.M.2011) (automatic stay violation); Price v. Am.’s Servicing Co. (In re Price), 403 B.R. 775, 790 n. 14 (Bankr. E.D.Ark.2009) (inflated proof of claim); Gunter v. Columbus Check Cashiers, Inc. (In re Gunter), 334 B.R. 900, 903-05 (Bankr. S.D.Ohio 2005) (postdischarge collection); and Molloy v. Primus Auto. Fin. Servs., 247 B.R. 804, 820-21 (C.D.Cal.2000) (postdischarge collection). Published decisions finding that FDCPA claims were precluded by the Bankruptcy Code include Jenkins v. Genesis Fin. Solutions (In re Jenkins), 456 B.R. 236, 240 (Bankr." }, { "docid": "602603", "title": "", "text": "home. In re Harrison, 236 B.R. 788, 789-790 (Bankr.M.D.Fla.1999)(internal citations omitted). Thus, “any challenge to the homestead exemption claim places a burden on the objecting party to make a strong showing that the Debtor is not entitled to the claimed exemption.” Id. at 790. It is also well settled that the claim of exemption is to be determined as of the petition date, and not as of the date of conversion to chapter 7. See 11 U.S.C. Sec. 348; In re Sandoval, 103 F.3d 20 (5th Cir.1997); In re Marcus, 1 F.3d 1050(10th Cir.1993); In re Buick, 237 B.R. 607, 609 (Bankr.W.D.Pa.1999); In re Rivera, 5 B.R. 313, 315 (Bankr.M.D.Fla.1980)(“the right to claim exemptions by a Debtor is governed by the facts and governing circumstances which existed on the date the petition was filed and not by any changes which may have occurred thereafter.”). 1. Partial Interests Qualifying as Homestead In his Objections, Mitrano asserts that the entry of the Divorce Decree, which converted Ballato’s ownership interest in the homestead property from tenancy by the entirety to tenancy in common, operated to eliminate or invalidate Ballato’s claim of homestead exemption. This assertion is without merit. The homestead exemption provided for under the Florida Constitution makes no distinction between the types of ownership interests in land that qualify for the exemption, and has been interpreted as applying to any interest in land. See, e.g., Bessemer Properties v. Gamble, 158 Fla. 38, 27 So.2d 832 (1946) (equitable interest); Milton v. Milton, 63 Fla. 533, 58 So. 718 (Fla.1912) (fractional interest); Southern Walls, Inc. v. Stilwell Corp., 810 So.2d 566 (Fla. 5th DCA 2002) (life estate). Consequently, if Ballato otherwise qualified for the homestead exemption on the petition date, the fact that he held his interest in the Property as tenant in common with his former spouse is of no legal consequence. 2. Multiple Residents Mitrano next asserts that the alleged presence of persons unrelated to Ballato residing at the Property, prior to the Petition date, eliminated or invalidated Ballato’s claim of homestead exemption. In support of his position, Mitrano cites In re" }, { "docid": "10135400", "title": "", "text": "undisputed objective facts of this case, Cl Bank has met that burden. By separate order, the Court will deny the Debtor’s motion to avoid the judgment lien of Cl Bank. . Art. X, § 4, Florida Constitution.' . The Court’s findings of fact are based on the Debtor’s testimony at a July 15, 2015 final evidentiary hearing on his motion to avoid Cl Bank’s judicial lien. At the July 15 final evi-dentiary hearing, the Court also received into evidence Debtor’s Exhibits 1 and 2, as well as Cl Bank’s Exhibits 1-3. .Debtor’s Ex. 1. . Debtor's Composite Ex. 2. . Id. . Id. . Id. . Doc. No. 1. . Doc. No. 23. . Art. X, § 4, Fla. Const, . In re Bennett, 395 B.R. 781, 789 (Bankr. M.D. Fla. 2008) (quoting Hillsborough Inv. Co. v. Wilcox, 152 Fla. 889, 13 So.2d 448, 452 (1943)); see also Orange Brevard Plumbing & Heating Co. v. La Croix, 137 So.2d 201 (Fla. 1962) (holding that \"intent alone is not a sufficient basis for the establishment of a homestead\") (emphasis added). . In re Harle, 422 B.R. 310, 313-14 (Bankr. M.D, Fla, 2010). . Semple v. Semple, 82 Fla. 138, 89 So. 638, 639 (1921) (emphasis added). . Cl Bank’s Trial Ex. 2. . In re McClain, 281 B.R. 769, 773-74 (Bankr. M.D. Fla. 2002). . In re Bratty, 202 B.R. 1008, 1010 (Bankr. S.D. Fla, 1996) (citing Smith v. Hamilton, 428 So.2d 382 (Fla. 4th DCA 1983)). . Debtor's Composite Ex. 2. . 19 Fla. 191, 195-96 (Fla. 1882) (emphasis added). . 18 Fla, 756 (Fla. 1882). . Id, at 757. . Id, at 758. . Id. at 760. . Arguably, there is one other distinguishing fact. In Hewlett, the homeowner failed to allege he had undertaken any repairs to make the claimed homestead livable. Here, by contrast, the Debtor ripped up the carpet, sprayed some mold killer, and purchased some minimal supplies to repair the property. Those minimal steps, taken over a three-year period, do not make this case meaningfully different from Hewlett. . The Court is aware, from testimony" }, { "docid": "997853", "title": "", "text": "to state when the alleged default occurred. (Doc. 23, ¶ 8). . Doc. 23, Ex. H. . Id. . Doc, 23. . Id. . Doc.31. . Id. . A motion to reopen may be filed by a party in interest such as Space Coast. Fed. R. Bankr. P. 5010. . In re Shondel, 950 F.2d 1301, 1304 (7th Cir. 1991). . Id.; see also Jester v. Wells Fargo Bank N.A. (In re Jester), 656 Fed.Appx. 425, 427-28 (10th Cir, 2016); Zinchiak v. CIT Small Business Lending Corp. (In re Zinchiak), 406 F.3d 214, 223 (3d Cir. 2005); Curry v. Castillo (In re Castillo), 297 F.3d 940, 944 (9th Cir. 2002). . In re Shondel, 950 F,2d at 1304. . 11 U.S.C. §§ 101-1532 (\"Code” or “Bankruptcy Code”). Unless otherwise indicated, all sectional references are to the Bankruptcy Code. . In re Failla, 838 F.3d at 1179. . Section 521(a)(2) requires chapter 7 debtors with secured obligations to file a statement of intentions with respect to the \"retention or surrender of such property ,,,. ” The statement must be filed within 30 days of the chapter 7 petition, and the debtors must perform their intention within 30 days after the first date set for the meeting of creditors under section 341(a). . In re Failla, 529 B.R. 786, 787-88 (Bankr. S.D. Fla, 2014). .Id. . In re Failla, 838 F.3d at 1176. . Id. at 1179. Section 105(a) provides that the bankruptcy court \"may issue any order, process, or judgment that is necessary or appropriate to carry out the provisions of [the Bankruptcy Code].” Id. (emphasis added). The court’s discretionary authority under section 105(a) is \"broad,” Failla, 838 F.3d at 1179 (quoting Marrama v. Citizens Bank of Mass., 549 U.S. 365, 375, 127 S.Ct. 1105, 166 L.Ed.2d 956 (2007)). . Id. at 1178-79. . In re Failla, 529 B.R. at 787-88. . On their Statement of Financial Affairs, the Ayalas disclosed a sizeable payment to Space Coast made shortly before the bankruptcy petition was filed. The payment appears to constitute three monthly payments when compared to the Schedule J. . In" }, { "docid": "15422701", "title": "", "text": "question are owned by Hill and his wife as tenants by the entire-ties. A tenant by the entireties holds “an indivisible right to own and occupy the entire property.” United, States v. 15621 S.W. 209th Ave., Miami, Fla., 894 F.2d 1511, 1515 (11th Cir.1990) (holding that property used by its owner to facilitate a controlled substance transaction is exempt from forfeiture when held by the entireties with an innocent spouse). Under Florida law, “[n]either spouse can sell, forfeit or encumber any part of the estate without the consent of the other, nor can one spouse alone lease it or contract for its disposition.” Id. at 1514 (quoting Parrish v. Swearington, 379 So.2d 185, 186 (Fla. Dist.Ct.App.1980) (per curiam)). Further “[creditors cannot levy on entireties property to satisfy the debt of an individual spouse.” Id. at 1515. see also First Nat. Bank of Leesburg v. Hector Supply Co., 254 So.2d 777, 781 (Fla.1971) (refusing to allow a bank account held in tenancy-by-the-entireties to be garnished as a result of the individual debts of one tenant). In accordance with these principles, property held by a debtor as a tenant-by-the-entireties is exempt from the claims of individual creditors in bankruptcy under Florida common law. See 11 U.S.C. § 522(b)(2)(B) . See also In re Hendricks, 237 B.R. 821, 824 (Bankr. M.D.Fla.1999). Cf. Sumy v. Schlossberg, 777 F.2d 921, 928 (4th Cir.1985) (interpreting Maryland law). However, when tenancy-by-the-entireties property is created via a fraudulent conveyance, it may be avoided as such. See Thomas J. Konrad & Assoc., Inc. v. McCoy, 705 So.2d 948 (Fla.Dist.Ct. App.1998); Valdivia v. Valdivia, 593 So.2d 1190, 1192 (Fla.Dist.Ct.App.1992). See also In re Hendricks, 237 B.R. at 824. Avoiding the transfer which created a tenancy-by-the-entireties will neces sarily eliminate the property rights of one of the tenants. Therefore, a court may not avoid such a transfer, and thereby make the tenancy-by-the-entireties property available to the creditors of one tenant, without affording both tenants their rights to due process. Accordingly, a plaintiff seeking to avoid the creation of tenancy-by-the-entireties property on the basis that the estate resulted from a fraudulent transfer" }, { "docid": "16130509", "title": "", "text": "§ 550(b)(1)). . In re Dealers Agency Services, Inc., 380 B.R. 608, 612 (Bankr.M.D.Fla.2007). . In re Vista Bella, Inc., 511 B.R. 163, 192-93 (Bankr.S.D.Ala.2014). . Turner v. Fitzsimmons, 673 So.2d 532, 536 (Fla. 1st DCA 1996); Cullen v. Seaboard Air Line R. Co., 63 Fla. 122, 58 So. 182, 184 (1912). . Fla. Stat. § 726.105(l)(a). . Fla. Stat. § 726.105(l)(b). . Fla. Stat. § 726.106(1). . In re Phoenix Diversified Investment Corp., 2011 WL 2182881, *4 (Bankr.S.D. Fla. June 2, 2011). That determination is made on the specific facts of the case and the circumstances relevant to the transaction. In re 21st Century Satellite Communications, Inc., 278 B.R. 577, 582 (Bankr.M.D.Fla.2002). . Berkman Case, Doc. No. 115-1, SAM Case, Doc. No. 61-1. . Berkman Case, Doc. No. 50. .See Goldberg v. Chong, 2007 WL 2028792, *6 (S.D. Fla. July 11, 2007) (noting that a transferor may not manufacture an illusory debt merely to satisfy the statute). Cf. In re Southmark Corp., 138 B.R. 820, 830 (Bankr. N.D.Tex.1992) (holding that judgment debtor received reasonably equivalent value when judgment creditor received payment under a supersedeas bond and subsequently released its judgment). . 138 B.R. at 830. . At the time, the United States Trustee had not yet filed suit to revoke Berkman’s discharge. . In re Seminole Walls & Ceilings Corp., 446 B.R. 572, 596 (Bankr.M.D.Fla.2011). . Nelson v. Cravero Constructors, Inc., 117 So.2d 764, 766 (Fla. 3d DCA 1960). . Wiand v. Waxenberg, 611 F.Supp.2d 1299, 1319 (M.D.Fla.2009); In re Evergreen Security, Ltd., 319 B.R. 245, 254 (Bankr.M.D.Fla. 2003). . Wiand, 611 F.Supp.2d at 1319. . Evergreen Security, 319 B.R. at 255. . Exh. No. 108; Berkman Case, Doc. No. 162, ¶ 19. . Della Ratta v. Della Ratta, 927 So.2d 1055, 1059 (Fla. 4th DCA 2006). . Thompkins v. Lil Joe Records, Inc., 476 F.3d 1294, 1314 (11th Cir.2007). . 834 So.2d 285 (Fla. 2d DCA 2003). . 959 So.2d 322, 331-32 (Fla. 5th DCA 2007). . Thompkins v. Lil Joe Records, Inc., 476 F.3d at 1314. . In re Standard Jury Instructions—Contract and Business Cases, 116 So.3d" }, { "docid": "20212605", "title": "", "text": "equity jurisprudence.’ \") (quoting Pepper v. Litton, 308 U.S. 295, 304, 60 S.Ct. 238, 84 L.Ed. 281 (1939)). . 550 F.3d 1251, 1255. . Id. at 1256. . Id. at 1253. . Id. at 1256 (citing Meoli v. MBNA America Bank, N.A. (In re Wells), 382 B.R. 355, 360 (6th Cir. BAP 2008); Yoppolo v. Greenwood Trust Co. (In re Spitler), 213 B.R. 995, 999 (Bankr.N.D.Ohio 1997)). . At most, debtor held bare legal title to the funds as the constructive trust trustee; regardless, the funds were not an asset of the debtor’s estate, even for a nanosecond. Marshall, 550 F.3d at 1258 n. 6. . Clark v. Wetherill (In re Leitner), 236 B.R. 420, 425 (Bankr.D.Kan.1999). . Id. . Id. at 426 (footnote collecting cases omitted). . Begier, 496 U.S. at 59, 110 S.Ct. 2258. . See George Bogert, Bogert’s Trust and Trustees § 1, at 11 (2d ed. 1984). . See Canal Corp. v. Finnman, et at (In re Johnson), 960 F.2d 396 (4th Cir.1992). . See 1 Henry J. Sommer, et al„ Consumer Bankruptcy Law and Practice § 18.5.2.2. at n. 159 (9th ed. 2009 & Supp. 2010). “State courts’ prepetition imposition of constructive trusts is not a transfer that can be avoided as a preference,” citing In re Pitchford, 410 B.R. 416 (Bankr.W.D.Pa.2009). . 5 Collier on Bankruptcy ¶ 547.03[2] (Alan N. Resnick & Henry J. Sommer eds., 16th ed. 2012). . Nelson v. Nelson, 288 Kan. 570, 580, 205 P.3d 715 (2009) (emphasis omitted), (quoting Restatement (First) of Restitution § 160). . See id. . Id. at 585, 205 P.3d 715 (emphasis added by Luckert, J.) (quoting In re Estate of Zimmerman, 207 Kan. 354, 357, 485 P.2d 215 (1971)). . Id. (quoting Horsley v. Hrenchir, 146 Kan. 767, 769, 73 P.2d 1010 (1937)). . Id. . Leitner, 236 B.R. at 425. . Restatement (First) of Restitution § 160 cmt. i (1937). . Nelson, 288 Kan. at 580, 205 P.3d 715 (citation omitted). . Grogan v. Garner, 498 U.S. 279, 286, 111 S.Ct. 654, 112 L.Ed.2d 755 (1991) (quoting Local Loan Co. v. Hunt, 292" }, { "docid": "19128701", "title": "", "text": "under Section 521. In some cases, dismissal may be appropriate, particularly when a debtor deliberately ignores his or her obligations under Section [521(a)(2)].” In re Sullivan-Anderson, 307 B.R. 726, 729 (Bankr.M.D.Fla. 2003). Courts consistently have used other methods to enforce a debtor’s compliance under § 521(a)(2), such as orders to compel compliance and dismissal of the bankruptcy case under § 707(a). See Taylor v. AGE Fed. Credit Union (In re Taylor), 3 F.3d 1512 (11th Cir.1993) (upholding the bankruptcy court's order compelling the debtor to comply with his stated intention under § 521); In re Harris, 226 B.R. 924 (Bankr.S.D.Fla.1998) (dismissing case for cause under § 707(b)). . 218 B.R. 133 (10th Cir. BAP 1998). . Theobald, 218 B.R. at 136-37. . See Claim No. 22-2. . Fla. Stat. § 697.02 (2013) (\"A mortgage shall be held to be a specific lien on the property therein described, and not a conveyance of the legal title or of the right of possession.”). . Accord Martyn v. First Federal Sav. & Loan Ass’n of West Palm Beach, 257 So.2d 576 (Fla. 4th DCA 1971) (citing Folks v. Chesser, 106 Fla. 836, 145 So. 602 (1932)). . See In re Phillips, 368 B.R. 733, 744 (Bankr.N.D.Ind.2007) (holding that in a lien theory state, “the mortgagor continues to be the owner of the estate until foreclosure”). . Butner v. United States, 440 U.S. 48, 55, 99 S.Ct. 914, 59 L.Ed.2d 136 (1979). . Cf. In re Canning, 706 F.3d 64, 72 (1st Cir.2013) (discussing the debtor’s vacation of their surrendered residence before the creditor foreclosed on the property, stating that the debtors \"placed many of the burdens of dealing with an abandoned property on their neighbors, their town, and their city — in other words, on everyone but them”). . Hickey’s Exhibits 5 and 6. . See Doc. No. 91, Exhibit 3 at ¶ 6. . In re Hardy, 97 F.3d 1384, 1388-89 (11th Cir.1996). . 11 U.S.C. § 524(a) (2013). . Hickey's Exhibit 9 at ¶ 10(b). . Id. . 11 U.S.C. § 722 (2013). . 11 U.S.C. § 524(a)(1) (2013). . See" }, { "docid": "16130508", "title": "", "text": "165. . It was public knowledge that Facebook planned an initial public offering. See http:// www.cbsnews.com/news/facebook-poised-for-ipo. . Adv. Pro. No. 8:13-ap-336-CED, Doc. No. 110-1, ¶¶ 28-29. . Adv. Pro. No. 8:13-ap-479-CED. . Berkman Case, Doc. No. 213. . Fla. Stat. § 726.101, et seq. . Adv. Pro. No. 8:13-ap-336-CED, Doc. No. 1. . Adv. Pro. No. 8:13-ap-336-CED, Doc. No. 109. . Adv. Pro. No. 8:13-ap-336-CED, Doc. No. 62. . Adv. Pro. No. 8:13-ap-336-CED, Doc. No. 91. . SAM Case, Doc. No. 168. . Adv. Pro. No. 8:13-ap-469-CED, Doc. Nos. 1, 45. . Adv. Pro. No. 8:13-ap-469-CED, Doc. Nos. 31, 41. . Adv. Pro. No. 8:13-ap-336-CED, Doc. Nos. 94-98; Adv. Pro. No. 8:13-ap-469-CED, Doc. Nos. 75-78. Alco is a party only to Adv. Pro. No. 8:13-ap-336-CED. . Each. No. 150. . Adv. Pro. No. 8:13-ap-336-CED, Doc. No. 122, ¶¶ 15-16. . Adv. Pro. No. 8:13-ap-336-CED, Doc. No. 124. . See, e.g., In re Equipment Acquisition Resources, Inc., 2014 WL 1979366 (N.D.Il. May 15, 2014) (granting summary judgment to transferee on issue of good faith defense under § 550(b)(1)). . In re Dealers Agency Services, Inc., 380 B.R. 608, 612 (Bankr.M.D.Fla.2007). . In re Vista Bella, Inc., 511 B.R. 163, 192-93 (Bankr.S.D.Ala.2014). . Turner v. Fitzsimmons, 673 So.2d 532, 536 (Fla. 1st DCA 1996); Cullen v. Seaboard Air Line R. Co., 63 Fla. 122, 58 So. 182, 184 (1912). . Fla. Stat. § 726.105(l)(a). . Fla. Stat. § 726.105(l)(b). . Fla. Stat. § 726.106(1). . In re Phoenix Diversified Investment Corp., 2011 WL 2182881, *4 (Bankr.S.D. Fla. June 2, 2011). That determination is made on the specific facts of the case and the circumstances relevant to the transaction. In re 21st Century Satellite Communications, Inc., 278 B.R. 577, 582 (Bankr.M.D.Fla.2002). . Berkman Case, Doc. No. 115-1, SAM Case, Doc. No. 61-1. . Berkman Case, Doc. No. 50. .See Goldberg v. Chong, 2007 WL 2028792, *6 (S.D. Fla. July 11, 2007) (noting that a transferor may not manufacture an illusory debt merely to satisfy the statute). Cf. In re Southmark Corp., 138 B.R. 820, 830 (Bankr. N.D.Tex.1992) (holding that judgment debtor received reasonably" }, { "docid": "18472380", "title": "", "text": "(S.D.Ohio 2009) (inflated proof of claim); Bacelli v. MFP, Inc., 729 F.Supp.2d 1328, 1336— 37 (M.D.Fla.2010) (automatic stay and discharge injunction violations); Evans v. Midland Funding LLC, 574 F.Supp.2d 808, 816-17 (S.D.Ohio 2008) (postdischarge collection); Dougherty v. Wells Fargo Home Loans, Inc., 425 F.Supp.2d 599, 604-06 (E.D.Pa.2006) (post discharge collection); Marshall v. PNG Bank, N.A, (In re Marshall), 491 B.R. 217, 224-27 (Bankr.S.D.Ohio 2012) (postdischarge collection); Atwood v. GE Money Bank (In re Atwood), 452 B.R. 249, 251-53 (Bankr.D.N.M. 2011) (automatic stay violation); Price v. Am.’s Servicing Co. (In re Price), 403 B.R. 775, 790 n. 14 (Bankr.E.D.Ark.2009) (inflated proof of claim); Gunter v. Golumbus Check Cashiers, Inc. (In re Gunter), 334 B.R. 900, 903-05 (Bankr.S.D.Ohio 2005) (postdischarge collection); and Molloy v. Primus Auto. Fin. Serves., 247 B.R. 804, 820-21 (C.D.Cal.2000) (postdischarge collection). A sampling of published decisions finding that FDCPA claims were precluded by the Bankruptcy Code (and the majority) include In re Dunaway, 531 B.R. 267 (Bankr.W.D.Mo. 2015). (a proof of claim that accurately,reflects information on the debt, including the date of last payment, date the account was charged off by the original creditor and the last transaction date is not false, deceptive or misleading on its face and the argument that filing a proof of claim on a time-barred debt mischaracterizes the legal status of the debt also fails because a debt that is legally unenforceable or uncollectible is not extinguished; the money is still owed and only the creditor’s remedies are regulated.); Donaldson v. LVNV Funding, LLC, - F.Supp.3d -, 2015 WL 1539607 (S.D.Ind. April 7, 2015) (same): Torres v. Calvary SPVI, LLC, 530 B.R. 268 (E.D.Pa.2015) (filing time barred proof of claim is not basis for an FDCPA claim); In re Roman Perez, 527 B.R. 844 (Bankr.D.P.R. 2015) (FDCPA not available if debtor has remedies in bankruptcy code such as 11 U.S.C. § 362(k)); In re Ganas, 513 B.R. 394 (Bankr.E.D.Ca.2014) (Jenkins v. Genesis Fin. Solutions (In re Jenkins), 456 B.R. 236, 240 (Bankr.E.D.N.C.2011) (proof of claim for time-barred debt); McMillen v. Syndicated Office Sys., Inc. (In re McMillen), 440 B.R. 907, 911-13 (Bankr.N.D.Ga.2010) (inflated" }, { "docid": "602604", "title": "", "text": "entirety to tenancy in common, operated to eliminate or invalidate Ballato’s claim of homestead exemption. This assertion is without merit. The homestead exemption provided for under the Florida Constitution makes no distinction between the types of ownership interests in land that qualify for the exemption, and has been interpreted as applying to any interest in land. See, e.g., Bessemer Properties v. Gamble, 158 Fla. 38, 27 So.2d 832 (1946) (equitable interest); Milton v. Milton, 63 Fla. 533, 58 So. 718 (Fla.1912) (fractional interest); Southern Walls, Inc. v. Stilwell Corp., 810 So.2d 566 (Fla. 5th DCA 2002) (life estate). Consequently, if Ballato otherwise qualified for the homestead exemption on the petition date, the fact that he held his interest in the Property as tenant in common with his former spouse is of no legal consequence. 2. Multiple Residents Mitrano next asserts that the alleged presence of persons unrelated to Ballato residing at the Property, prior to the Petition date, eliminated or invalidated Ballato’s claim of homestead exemption. In support of his position, Mitrano cites In re Englander, 95 F.3d 1028 (11th Cir.1996). Englander is among a line of cases that provides for the partial or complete disallowance of the homestead exemption in cases where severable portions of the property, usually multi-unit properties, are used solely for income-producing or business purposes. See, e.g., First Leasing & Funding of Florida, Inc. v. Fiedler, 591 So.2d 1152 (Fla. 2nd DCA 1992); In re Wierschem, 152 B.R. 345 (Bankr.M.D.Fla.1993); Thompson v. Hibner, 705 So.2d 36 (Fla. 3rd DCA 1997). In the instant case, it is undisputed that the Property is a single-family residence, and that there are no severable portions of the Property being used for income-producing purposes. Even assuming, as Mi-trano asserts, that unrelated persons were living with Ballato, and further assuming that those persons were paying rent for the use and occupancy of portions of the Property, the fact that the Property is a single-family residence distinguishes it from the cases cited above. See, e.g., In re Englander, 156 B.R. 862, 866-867 (Bankr.M.D.Fla.1992), aff'd 95 F.3d 1028 (11th Cir.1996) (rented apartment over garage" }, { "docid": "15422700", "title": "", "text": "as tenancy-by-the-entirety property, but must seek to avoid the transfer as a fraudulent conveyance in an adversary proceeding. Rl-13 at 2. Ha-voco appeals this order. II. DISCUSSION We review the bankruptcy court’s factual findings, as accepted by the district court for clear error, and the district court’s determinations of law de novo. In re Englander, 95 F.3d 1028, 1030 (11th Cir.1996). The primary focus of Havoco’s appeal is the legal conclusions reached by the district court. On appeal, Havoco argues that its objection to Hill’s claim of a tenancy-by-the-entireties exception should be dealt with in the same manner as any other objection to exemption and that Hill can adequately represent the interests of his wife in the objection proceeding or his wife could intervene in the objection proceedings. With regard to the homestead exemption, Havoco argues that the principles and spirit of the Florida constitution require that the homestead exemption not be used as an instrument of fraud. A. THE TENANCY-BY-THE-EN-TIRETIES EXEMPTION Havoco does not contest the bankruptcy court’s finding that the household furnishings in question are owned by Hill and his wife as tenants by the entire-ties. A tenant by the entireties holds “an indivisible right to own and occupy the entire property.” United, States v. 15621 S.W. 209th Ave., Miami, Fla., 894 F.2d 1511, 1515 (11th Cir.1990) (holding that property used by its owner to facilitate a controlled substance transaction is exempt from forfeiture when held by the entireties with an innocent spouse). Under Florida law, “[n]either spouse can sell, forfeit or encumber any part of the estate without the consent of the other, nor can one spouse alone lease it or contract for its disposition.” Id. at 1514 (quoting Parrish v. Swearington, 379 So.2d 185, 186 (Fla. Dist.Ct.App.1980) (per curiam)). Further “[creditors cannot levy on entireties property to satisfy the debt of an individual spouse.” Id. at 1515. see also First Nat. Bank of Leesburg v. Hector Supply Co., 254 So.2d 777, 781 (Fla.1971) (refusing to allow a bank account held in tenancy-by-the-entireties to be garnished as a result of the individual debts of one tenant). In" }, { "docid": "17675492", "title": "", "text": "(D.Neb.2010) (automatic stay and discharge injunction violations); Kline v. Mortg. Elec. Sec. Sys., 659 F.Supp.2d 940, 949-51 (S.D.Ohio 2009) (inflated proof of claim); Bacelli v. MFP, Inc., 729 F.Supp.2d 1328, 1336-37 (M.D.Fla.2010) (automatic stay and discharge injunction violations); Evans v. Midland Funding LLC, 574 F.Supp.2d 808, 816-17 (S.D.Ohio 2008) (post-discharge collection); Dougherty v. Wells Fargo Home Loans, Inc., 425 F.Supp.2d 599, 604-06 (E.D.Pa.2006) (postdischarge collection); Marshall v. PNC Bank, N.A. (In re Marshall), 491 B.R. 217, 224-27 (Bankr.S.D.Ohio 2012) (postdischarge collection); Atwood v. GE Money Bank (In re Atwood), 452 B.R. 249, 251-53 (Bankr.D.N.M.2011) (automatic stay violation); Price v. Am.’s Servicing Co. (In re Price), 403 B.R. 775, 790 n. 14 (Bankr. E.D.Ark.2009) (inflated proof of claim); Gunter v. Columbus Check Cashiers, Inc. (In re Gunter), 334 B.R. 900, 903-05 (Bankr. S.D.Ohio 2005) (postdischarge collection); and Molloy v. Primus Auto. Fin. Servs., 247 B.R. 804, 820-21 (C.D.Cal.2000) (postdischarge collection). Published decisions finding that FDCPA claims were precluded by the Bankruptcy Code include Jenkins v. Genesis Fin. Solutions (In re Jenkins), 456 B.R. 236, 240 (Bankr. E.D.N.C.2011) (proof of claim for time-barred debt); McMillen v. Syndicated Office Sys., Inc. (In re McMillen), 440 B.R. 907, 911-13 (Bankr.N.D.Ga.2010) (inflated proof of claim); B-Real, LLC v. Rogers (In re Rogers), 405 B.R. 428, 430-34 (M.D.La.2009), rev’g, 391 B.R. 317, 325-26 (Bankr.M.D.La.2008) (proof of claim for time-barred debt); Gilliland v. Capital One Bank (In re Gilliland), 386 B.R. 622, 623-24 (Bankr.N.D.Miss.2008) (inflated proof of claim); Williams v. Asset Acceptance, LLC (In re Williams), 392 B.R. 882, 885-87 (Bankr.M.D.Fla.2008) (time-barred proof of claim); Middlebrooks v. Interstate Credit Control, Inc., 391 B.R. 434, 436-37 (D.Minn.2008) (proof of claim for time-barred debt); Pariseau v. Asset Acceptance, LLC (In re Pariseau), 395 B.R. 492, 493-94 (Bankr. M.D.Fla.2008) (false proof of claim); Rice-Etherly v. Bank One (In re Rice-Etherly), 336 B.R. 308, 311-13 (Bankr.E.D.Mich.2006) (inflated proof of claim); Need v. Universal Fid. Corp., 297 B.R. 376, 379-81 (E.D.N.Y.2003) (postdischarge collection); Cooper v. Litton Loan Servicing (In re Cooper), 253 B.R. 286, 291-92 (Bankr.N.D.Fla.2000) (inflated proof of claim); and Gray-Mapp v. Sherman, 100 F.Supp.2d 810, 813-14 (N.D.Ill.1999) (inflated proof of" }, { "docid": "19112592", "title": "", "text": "entireties.” Compl. ¶ 7. “Many jurisdictions have abolished the tenancy by the entireties” but “the District of Columbia still recognizes [this form of ownership] “with most of its common law features still intact.’ ” Morrison v. Potter, 764 A.2d 234, 236 (D.C.2000) (citing In re Wall’s Estate, 440 F.2d 215, 218 (1971)). When spouses are tenants by the entire-ties, “each spouse is entitled to the enjoyment and benefits of the whole property held by the entireties.” Id. Property held by tenants by the entireties is subject to the spouses’ joint debts as well as individual debts of the surviving co-tenant but “it is unreachable by creditors of one but not of both of the tenants.” Morrison, 764 A.2d at 237; see In re Wall’s Estate, 440 F.2d at 220 (finding that “absent a different treatment by the [appellees], they held the sale proceeds as tenants by the entire-ties in prolongation of their preexisting co-tenancy in the realty, and held it free from -the claims of separate creditors of either”); Cunningham, The Law of Property § 5.5, at 206 n. 19 (“one spouse alone cannot convey, encumber, of subject to the satisfaction of creditors’ claims either that spouse’s possessory estate for the joint lives of the co-tenants or that spouse’s contingent right of survivorship”). A mortgage entered into by one spouse that purports to be secured by property owned by the couple, as tenants by the entirety, is void because it was not executed by both spouses and creates a cloud upon the title to the property. See 78 A.L.R. 24 (Originally published in 1932) (collecting cases). The plaintiff alleges that she is a tenant by the entirety but executed no documents in connection with the loan taken from the defendant by her husband. See Compl. ¶¶ 10, 12. This allegation is bolstered by‘documents submitted by the defendant to support its motion to dismiss. Specifically, the deed to the house states clearly that the plaintiff and her husband hold the house in fee simple as tenants by the entireties, see Def.’s Mot, Ex. A, but the Home Equity Loan and Deed" }, { "docid": "14539433", "title": "", "text": "671, 673-74 (M.D.Ala.2011). . United States v. Almeida, 341 F.3d 1318, 1324 (11th Cir.2003). . In re Indiantown Realty Partners Ltd. P'ship, 270 B.R. 532 (Bankr.S.D.Fla.2001) (quoting Visual Scene, Inc. v. Pilkington Bros., 508 So.2d 437, 440 (Fla. 3d DCA 1987)). . Teleglobe USA, Inc. v. BCE, Inc. (In re Teleglobe Commc’ns Corp.), 493 F.3d 345, 365 (3d Cir.2007). . Id. (citing Restatement (Third) of the Law Governing Lawyers § 76 cmt. e.). . Id. . Ohio-Sealy Mattress Mfg. v. Kaplan, 90 F.R.D. 21, 29 (N.D.Ill.1980). . Doc. No. 614 at 5 n.1. . In re Ginn-LA, St. Lucie, Ltd., 439 B.R. 801, 804-05 (Bankr.S.D.Fla.2010). .Id. at 803. . Id. . Id. at 805 (quoting Restatement (Third) Governing Lawyers § 75). . Id. at 806 (citing In re Mirant, 326 B.R. 646 (Bankr.N.D.Tex.2005)). . In re Mirant, 326 B.R. at 648. . Id. at 654 (explaining that \"[i]n a bankruptcy case, the need for investigation is far more acute than is any concern for attorney-client communications”). . Id. at 654-55. . In re Ginn-LA St. Lucie, Ltd., 439 B.R. at 805-07. . Id. at 805-06. . Doc. Nos. 612; Doc. No. 625 at 4; Doc. No. 620. . Doc. No. 620 at 2-3. . Doc. No. 623 at 3-4. . Doc. No. 625 at 4-7; Doc. No. 612. . Doc. No. 620 (citing Donahue v. Vaughn, 721 So.2d 356, 357 (Fla. 5th DCA 1998)). . Id. . Donahue, 721 So.2d at 356-57. . Id.; see also In re Ginn-LA St. Lucie, Ltd., 439 B.R. 801, 809 (Bankr.S.D.Fla.2010) (explaining that Donahue “addressed whether counsel was required to provide documents to a client free of charge”). . Doc. No. 625 at 4 (citing United Steelworkers of Am., AFL-CIO-CLC v. Ivaco, Inc., 2002 WL 31932875, at *6 (N.D.Ga. Jan. 13, 2003)). . Id. (citing QBE Ins. Co. v. Griffin, 2009 WL 2913478, at *3 (M.D.Ala. Sep. 4, 2009)). . Ivaco, 2002 WL 31932875, at *6; Griffin, 2009 WL 2913478, at *3. . See, e.g., In re Ginn-LA St. Lucie, Ltd., 439 B.R. 801, 809 (Bankr.S.D.Fla.2010); In re Equaphor, Inc., 2012 WL 1682583, at" }, { "docid": "9920810", "title": "", "text": "while the Debtor was insolvent. . Wessinger v. Spivey (In re Galbreath), 286 B.R. 185, 197 (Bankr.S.D.Ga.2002); see also Nordberg v. Arab Banking Corp. (In re Chase & Sanborn Corp.), 904 F.2d 588, 593 (11th Cir. 1990). . Parks v. FIA Card Seivices, N.A. (In re Marshall), 550 F.3d 1251 (10th Cir.2008). . Id. at 1255. . Id. at 1256. . Id. at 1258. Strictly speaking, the bankruptcy estate did not exist at the time of the transfer because the debtors had not yet filed bankruptcy, but the Circuit recognized the question was \"whether the loan proceeds 'would have been part of the estate had [they] not been transferred before the commencement of bankruptcy proceedings.’ ” Id. (quoting Begier v. IRS, 496 U.S. 53, 58, 110 S.Ct. 2258, 110 L.Ed.2d 46 (1990)). . Enfield ex rel. Enfield v. A.B. Chance Co., 228 F.3d 1245, 1251 (10th Cir.2000) (citing Estate of Cowart v. Nicklos Drilling Co., 505 U.S. 469, 479, 112 S.Ct. 2589, 120 L.Ed.2d 379 (1992)). . See Jacobs v. State Bank of Long Island (In re AppOnline.com, Inc.), 296 B.R. 602, 617-18 (Bankr. E.D.N.Y.2003) (quoting In re Chase & Sanborn Corp., 848 F.2d 1196, 1197-98 (11th Cir.1988)). . 296 B.R. at 608. . Nat'l Bank of Andover v. Kansas Bankers Sur. Co., 290 Kan. 247, 270, 225 P.3d 707, 723 (2010). . Marshall, 550 F.3d at 1257. . Doc. 168 at 2-6. . Marshall, 550 F.3d at 1257. . Exh. VWV at 34. . Barkley Clark and Barbara Clark, The Law of Bank Deposits, Collections and Credit Cards, ¶ 17.01 (A.S. Pratt & Sons, current through Oct. 2013 update) (available on Thomson Reuters Westlaw). . LTF Real Estate Co., Inc. v. Expert South Tulsa, LLC (In re Expert South Tulsa, LLC), 522 B.R. 634, 652 (10th Cir. BAP 2014). . White v. Coyne, Schultz, Becker & Bauer, S.C. (In re Pawlak), 483 B.R. 169, 183 (Bankr. W.D.Wis.2012). . Cooper v. Ashley Commc’ns., Inc. (In re Morris Commc’ns. NC, Inc.), 914 F.2d 458, 466 (4th Cir.1990) (citing Collier on Bankruptcy, § 548.09 atp. 116 (15th ed. 1984)). . In rePawlak," }, { "docid": "19112591", "title": "", "text": "Sharon v. Tucker, 144 U.S. 533, 544, 12 S.Ct. 720, 36 L.Ed. 532 (1892)); Black’s Law Dictionary 34 (9th ed.2009) (defining an “action to quiet title” as a “proceeding to establish a plaintiffs title to land by compelling the adverse claimant to establish a claim or be forever estopped from asserting it”). Under District of Columbia law, “án action to quiet title may not be dismissed for failure to state a claim when the complaint alleges,” as the plaintiff has in this case, that she is an “owner[] of the land in fee simple,” and another party has asserted an interest in the property. In re Tyree, 493 A.2d at 317 (citing Goodman v. Wren, 34 App.D.C. 516, 519-20 (D.C.Cir.1910); District of Columbia v. Hufty, 13 App.D.C. 175, 177 (D.C.Cir.1898) (“It has been held that an allegation that one is seized in fee simple is a sufficient allegation of possession to maintain a bill to remove cloud.”) (citations omitted). The plaintiff further alleges that she and her husband “own the House as tenants by the entireties.” Compl. ¶ 7. “Many jurisdictions have abolished the tenancy by the entireties” but “the District of Columbia still recognizes [this form of ownership] “with most of its common law features still intact.’ ” Morrison v. Potter, 764 A.2d 234, 236 (D.C.2000) (citing In re Wall’s Estate, 440 F.2d 215, 218 (1971)). When spouses are tenants by the entire-ties, “each spouse is entitled to the enjoyment and benefits of the whole property held by the entireties.” Id. Property held by tenants by the entireties is subject to the spouses’ joint debts as well as individual debts of the surviving co-tenant but “it is unreachable by creditors of one but not of both of the tenants.” Morrison, 764 A.2d at 237; see In re Wall’s Estate, 440 F.2d at 220 (finding that “absent a different treatment by the [appellees], they held the sale proceeds as tenants by the entire-ties in prolongation of their preexisting co-tenancy in the realty, and held it free from -the claims of separate creditors of either”); Cunningham, The Law of Property §" }, { "docid": "5048424", "title": "", "text": "1 (Bankr. D.Mass.2011), this Court observed that “[a]lthough the standards for piercing the corporate veil are articulated most frequently with respect to corporations, ... the same principles would apply for alter ego liability to attach to members of limited liability companies.” Id. at 36 (citing In re Giampietro, 317 B.R. 841, 847-48 and n. 9 (Bankr. D. Nev. 2004)). See also Rodrigues v. Osorno (In re Osorno), 478 B.R. 523, 536 (Bankr. D.Mass.2012). In re Raymond, 529 B.R. at 475. In Raymond, this Court referenced Logistics Information Sys., Inc. v. Braunstein (In re Logistics Information Sys., Inc.), 432 B.R. 1 (D. Mass. 2010), in which the district court stated: Bankruptcy courts may substantively consolidate two or more related entities and thereby pool their assets. Substantive consolidation “treats separate legal entities as if they were merged into a single survivor left with all the cumulative assets and liabilities.” Genesis Health Ventures, Inc. v. Stapleton (In re Genesis Health Ventures, Inc.), 402 F.3d 416, 423 (3d Cir. 2005) .... Substantive consolidation of two or more debtors’ estates is widely accepted. See, e.g., In re Owens Corning, 419 F.3d 195, 207 (3d Cir. 2005); In re Bonham, 229 F.3d 750, 764 (9th Cir. 2000); Reider v. Fed. Deposit Ins. Co. (In re Reider), 31 F.3d 1102, 1106-07 (11th Cir. 1994); Drabkin v. Midland-Ross Corp. (In re Auto-Train Corp.), 810 F.2d 270, 276 (D.C. Cir. 1987). Substantive consolidation of a non-debtor with a debtor, as here, is less common, but increasingly accepted. The trend toward greater court approval of substantive consolidation “has its genesis in the increased judicial recognition of the widespread use of interrelated corporate structures. ...” Eastgroup Props. [v. Southern Motel ], 935 F.2d [245] at 249 [(1991)] (quoting In re Murray Indus., Inc., 119 B.R. 820, 828-29 (Bankr. M.D. Fla. 1990)). “Without the check of substantive consolidation, debtors could insulate money through transfers among inter-company shell corporations with impunity.” In re Bonham, 229 F.3d at 764. Within this circuit, bankruptcy courts have approved the application of substantive consolidation to non-debtors, often in cases in which the non-debtor is a subsidiary or" }, { "docid": "9094746", "title": "", "text": "at *1 (D.D.C. Dec. 8, 2015) (quoting Am. Bankers Ass'n v. Nat'l Credit Union Admin., 38 F.Supp.2d 114, 140 (D.D.C. 1999) ); accord Ark. Dairy Co-op Ass'n, Inc. v. U.S. Dep't. of Agric., 573 F.3d 815, 832 (D.C. Cir. 2009). There is an open question in this Circuit whether the Supreme Court invalidated the sliding scale approach when it decided Winter v. Natural Resources Defense Council, 555 U.S. 7, 129 S.Ct. 365, 172 L.Ed.2d 249 (2008), and relatedly whether the likelihood of success factor constitutes an \"independent, free-standing requirement for a preliminary injunction\". Sherley v. Sebelius, 644 F.3d 388, 392-93 (D.C. Cir. 2011) ; see also Nat'l Parks Conservation Ass'n, 2015 WL 9269401, at *2. DISCUSSION I. LIKELIHOOD OF SUCCESS ON THE MERITS To begin with, plaintiff claims that he has shown a substantial likelihood of success on his claims for quiet title and negligence. See Pl.'s Mot. for Prelim. Inj. [ECF No. 10] at 7. Plaintiff's quiet title claim is based on his allegation that defendant Lekser used a fraudulent power of attorney to secure the loan. See Lancaster v. Fox, 72 F.Supp.3d 319, 326 (D.D.C. 2014) (\"Were [plaintiff] successful in proving his fraud allegations, he could ... clear the title to the property of any cloud created by the contested deeds.\"). Under District of Columbia law, a deed of trust in favor of a mortgage lender is void if the power of attorney used to acquire it is a forgery. See Smith v. Wells Fargo Bank, 991 A.2d 20, 26-27 (D.C. 2010) ; id. at 31 (\"[E]ven a bona fide purchaser cannot acquire a property right by means of a forged instrument relating to the property.\"); In re Baxter, 320 B.R. 30, 39 (Bankr. D.D.C. 2004) (\"[I]f the Limited Power of Attorney was a forgery, the deed of trust executed pursuant to the Limited Power of Attorney is ineffective.\"); see also Cruz v. Cruz, 37 A.D.3d 754, 832 N.Y.S.2d 217, 218 (2007) (\"A deed based on forgery or obtained by false pretenses is void ab initio, and a mortgage based on such a deed is likewise invalid.\"). Here," }, { "docid": "16130510", "title": "", "text": "equivalent value when judgment creditor received payment under a supersedeas bond and subsequently released its judgment). . 138 B.R. at 830. . At the time, the United States Trustee had not yet filed suit to revoke Berkman’s discharge. . In re Seminole Walls & Ceilings Corp., 446 B.R. 572, 596 (Bankr.M.D.Fla.2011). . Nelson v. Cravero Constructors, Inc., 117 So.2d 764, 766 (Fla. 3d DCA 1960). . Wiand v. Waxenberg, 611 F.Supp.2d 1299, 1319 (M.D.Fla.2009); In re Evergreen Security, Ltd., 319 B.R. 245, 254 (Bankr.M.D.Fla. 2003). . Wiand, 611 F.Supp.2d at 1319. . Evergreen Security, 319 B.R. at 255. . Exh. No. 108; Berkman Case, Doc. No. 162, ¶ 19. . Della Ratta v. Della Ratta, 927 So.2d 1055, 1059 (Fla. 4th DCA 2006). . Thompkins v. Lil Joe Records, Inc., 476 F.3d 1294, 1314 (11th Cir.2007). . 834 So.2d 285 (Fla. 2d DCA 2003). . 959 So.2d 322, 331-32 (Fla. 5th DCA 2007). . Thompkins v. Lil Joe Records, Inc., 476 F.3d at 1314. . In re Standard Jury Instructions—Contract and Business Cases, 116 So.3d 284, 332 (Fla. 2013). . Id. . Sharp v. Bowling, 511 So.2d 363, 365 (Fla. 5th DCA 1987). . Moore Handley, Inc. v. Major Realty Corp., 340 So.2d 1238, 1239 (Fla. 4th DCA 1976). . Marshall-Shaw v. Ford, 755 So.2d 162, 165 (Fla. 4th DCA 2000) (“where the defendant has appropriated the plaintiff s money, or has taken his property and sold it, a quasi-contract count will lie for money had and received”) (emphasis supplied). . Adv. Pro. No. 8:13-ap-336-CED, Doc. No. 95, pp. 27-29. . 11 U.S.C. § 541(a)(3) and (a)(7). . 233 F.3d 922 (6th Cir.2000). . 233 F.3d at 930 (emphasis supplied) (citation omitted). . See U.S. Securities & Exchange Commission v. Universal Express, Inc., 2008 WL 1944803, *3 (S.D.N.Y. Apr. 30, 2008). \"Simply put, ‘one acting in good faith may obtain title to money from a thief.’\" Id. (citing Regions Bank v. Provident Bank, Inc., 345 F.3d 1267, 1279 (11th Cir.2003)). . 138 B.R. 410 (Bankr.S.D.N.Y.1992). . 91 B.R. 705 (Bankr.E.D.Pa.1988). . 91 B.R. at 712. . Exh. No. 145, pp." } ]

[ { "docid": "22713946", "title": "", "text": "which his action violated a student’s constitutional rights, a school board member, who has voluntarily undertaken the task of supervising the operation of the school and the activities of the students, must be held to a standard of conduct based not only on permissible intentions, but also on knowledge of the basic, unquestioned constitutional rights of his charges. Such a standard neither imposes an unfair burden upon a person assuming a responsible public office requiring a high degree of intelligence and judgment for the proper fulfillment of its duties, nor an unwarranted burden in light of the value which civil rights have in our legal system. Any lesser standard would deny much of the promise of § 1983. Therefore, in the specific context of school discipline, we hold that a school board member is not immune from liability for damages under § 1983 if he knew or reasonably should have known that the action he took within his sphere of official responsibility would violate the constitutional rights of the student affected, or if he took the action with the malicious intention to cause a deprivation of constitutional rights or other injury to the student. That is not to say that school board members are 'charged with predicting the future course of constitutional law.’ Pierson v. Ray, 386 U. S. [547, 557 (1967).] A compensatory award will be appropriate only if the school board member has acted with such an impermissible motivation or with such disregard of the student’s clearly established constitutional rights that his action cannot reasonably be characterized as being in good faith.” Ante, at 321-322. The opinion indicates that actual malice is presumed where one acts in ignorance of the law; thus it would appear that even good-faith reliance on the advice of counsel is of no avail. The Court's rationale in Goss suggests, for example, that school officials may infringe a student’s right to education if they place him in a noncollege-preparatory track or deny him promotion with his class without affording a due process hearing. See 419 U. S., at 597-599 (Powell, J., dissenting). Does this" } ]

[ { "docid": "6379875", "title": "", "text": "liability for damages under § 1983 if he knew or reasonably should have known that the action he took within his sphere of official responsibility would violate the constitutional rights of the student affected, or if he took the action with malicious intention to cause a deprivation of constitutional rights or other injury to the student. Id. at 322, 95 S.Ct. at 1001. This rationale was applied to prison officials in Procunier v. Navarette, 434 U.S. 555, 98 S.Ct. 855, 55 L.Ed.2d 24 (1978), where the Court stated that: Under the first part of the Wood v. Strickland rule, the immunity defense would be unavailing to petitioners if the constitutional right allegedly infringed by them was clearly established at the time of their challenged conduct, if they knew or should have known of that right, and if they knew or should have known that their conduct violated the constitutional norm. Id. at 562, 98 S.Ct. at 860. Since Trapnell does not challenge the magistrate’s finding that the defendants acted with subjective good faith, the issue presented is whether the defendants acted “with such disregard of . [the plaintiff’s] clearly established constitutional rights that [their] action cannot reasonably be characterized as being in good faith.” Wood v. Strickland, 420 U.S. at 322, 95 S.Ct. at 1001. Trapnell contends that under Aikens v. Jenkins, 534 F.2d 751 (7th Cir. 1976), Marion’s earlier guidelines governing the receipt of photographs were clearly illegal. Aikens was decided in April, 1976 and Trapnell’s photographs were rejected in October and November of 1976. Therefore, according to Trapnell, the officials knew or should have known that the censorship of the photos was in clear disregard of Trapnell’s established constitutional rights and the defendants are not entitled to immunity. The regulation reviewed in Aikens provided, inter alia, that: Periodicals of a sexual nature or which contain sexually-oriented material which, when taken as a whole, appear to be designed primarily to arouse sexual drives, cultivate sensual perception to sell or gain reader interest, or otherwise tend to appeal to the effective [sic] prurient interest in sex, are not approved. Photographs" }, { "docid": "2106776", "title": "", "text": "is derivative of any immunity possessed by the institution. See Kovats, 822 F.2d at 1306. As I have found that UMDNJ is not immune, Dr. Prockop may also not be immune. QUALIFIED IMMUNITY The defendants claim they are entitled to the defense of qualified immunity. The defendants bear the burden of showing that they are entitled to this defense. Butz v. Economou, 438 U.S. 478, 506, 98 S.Ct. 2894, 2910, 57 L.Ed.2d 895 (1978). “Although the Court has recognized that in enacting § 1983, Congress must have intended to expose state officials to damages liability in some circumstances, the section has been consistently construed as not intending wholesale revocation of the common-law immunity afforded government officials.” Procunier v. Navarette, 434 U.S. 555, 561, 98 S.Ct. 855, 859, 55 L.Ed.2d 24 (1978). Prior to Harlow v. Fitzgerald, 457 U.S. 800, 102 S.Ct. 2727, 73 L.Ed.2d 396 (1982), the Supreme Court endorsed a test for qualified immunity which had subjective and objective components. Thus, an official was denied qualified immunity if: he knew or should have known that the action he took within his sphere of official responsibility would violate the constitutional rights of the (complainant) or if (the official) took the action with malicious intention to cause a deprivation of constitutional rights or other injury. Wood v. Strickland, 420 U.S. 308, 95 S.Ct. 992, 43 L.Ed.2d 214 (1975). However, the Supreme Court in Harlow, supra, largely abandoned the subjective elements of this test which involved disputed facts thereby requiring resolution by jury and developed an objective test for determining the applicability of qualified immunity. Concluding that bare allegations of malice should not suffice to subject government officials either to the costs of trial or burdens of discovery, the Court held that government officials performing discretionary functions generally are shielded from liability for civil damages insofar as their conduct does not violate clearly established statutory or constitutional rights of which a reasonable person would have known. Harlow, 457 U.S. at 818, 102 S.Ct. at 2738. To be deemed violative of clearly established law, the unlawfulness of the conduct must be apparent in" }, { "docid": "18692777", "title": "", "text": "medicaid program. Hence, the County Commissioners cannot assert a claim of qualified immunity. Even if the County Commissioners could assert defenses of good faith, these contentions would not prevail. As originally set forth in Scheuer v. Rhodes, 416 U.S. at 247-48, 94 S.Ct. at 1691-92, the test for qualified immunity provided: [I]n varying scope, a qualified immunity is available to officers of the executive branch of government, the variations being dependent upon the scope of discretion and responsibilities of the office and all the circumstances as they reasonably appeared at the time of the action on which liability is sought to be based. It is the existence of reasonable grounds for the belief formed at the time and in light of these circumstances, coupled with good-faith belief, that affords a basis for qualified immunity of executive officers for actions performed in the course of official conduct. See Procunier v. Navarette, 434 U.S. at 561, 98 S.Ct. at 859; O’Connor v. Donaldson, 422 U.S. at 577, 95 S.Ct. at 2494; Duchesne v. Sugarman, 566 F.2d at 833 and n. 32. See also Butz v. Economou, 438 U.S. 478, 496, 98 S.Ct. 2894, 2905, 57 L.Ed.2d 895 (1978). In Wood v. Strickland, 420 U.S. at 322, 95 S.Ct. at 1000, the Supreme Court refined this both subjective and objective test: [An official] is not immune from liability for damages under § 1983 if he knew or reasonably should have known that the action he took within his sphere of official responsibility would violate the constitutional rights of the [person] affected, or if he took the action with the malicious intention to cause a deprivation of constitutional rights or other injury to the [person]. See Procunier v. Navarette, 434 U.S. at 561, 98 S.Ct. at 859; O’Connor v. Donaldson, 422 U.S. at 577, 95 S.Ct. at 2494; Reese v. Nelson, 598 F.2d 822, 826-27 (3d Cir.), cert. denied, 444 U.S. 970, 100 S.Ct. 463, 62 L.Ed.2d 384 (1979); McKinnon v. Patterson, 568 F.2d at 832-33; Duchesne v. Sugarman, 566 F.2d at 832-33; Sala v. County of Suffolk, 604 F.2d 207, 209-10 (2d Cir." }, { "docid": "10887416", "title": "", "text": "evidence stronger than we find here of precisely such commingled motives. Accordingly, we reject the FBI defendants’ contention that plaintiffs’ evidence on this element of their claim did not support the verdict. II. Harlow v. Fitzgerald and Defendants’ Qualified Immunity After trial and entry of judgment in this case, the Supreme Court issued its opinion in Harlow v. Fitzgerald, 457 U.S. 800, 102 S.Ct. 2727, 73 L.Ed.2d 396 (1982), which altered the law of qualified immunity. All defendants claim that the rule announced in Harlow applies to this case and requires judgment in their favor. While we agree that the principle announced in Harlow controls this case, we find that it does not require entry of judgment in favor of defendants. A. Qualified Immunity and the Harlow Standard Prior to Harlow, qualified immunity had both subjective and objective elements. The objective element involved a presumptive knowledge of and respect for “basic, unquestioned constitutional rights.” Wood v. Strickland, 420 U.S. 308, 322, 95 S.Ct. 992, 1001, 43 L.Ed.2d 214 (1975). The subjective element addressed the “permissible intentions,” id., or good faith of the Government actor. In other words, an official would not receive qualified immunity if he knew or reasonably should have known that the action he took within his sphere of official responsibility would violate the constitutional rights of the [plaintiff] or if [the official] took the action with the malicious intention to cause a deprivation of constitutional rights or other injury. Wood, 420 U.S. at 322, 95 S.Ct. at 1001. The Supreme Court’s decision to grant state and federal officers qualified, instead of absolute immunity “reflected an attempt to balance competing values: not only the importance of a damages remedy to protect the rights of citizens ... but also ‘the need to protect officials who are required to exercise their discretion and the related public interest in encouraging the vigorous exercise of official authority. Harlow, 457 U.S. at 807, 102 S.Ct. at 2733 (quoting Butz v. Economou, 438 U.S. 478, 506, 98 S.Ct. 2894, 2910, 57 L.Ed.2d 895 (1978)). By striking the balance in this manner, the Court determined" }, { "docid": "6379874", "title": "", "text": "the issue of official immunity. Additionally, Trapnell’s objection to the magistrate’s report discussed the magistrate’s finding of immunity. We will therefore consider the issue of immunity as having been tried by the implied consent of the parties. F.R.Civ.P. 15(b); Bradford Audio Corp. v. Pious, 392 F.2d 67, 73-74 (2d Cir. 1968). See also Federal Savings & Loan Ins. Corp. v. Hogan, 476 F.2d 1182 (7th Cir. 1973); Wagner v. United States, 573 F.2d 447, 452 (7th Cir. 1978). Trapnell’s next claim is that the defendants lacked the good faith necessary for official immunity to be granted. The standard to determine whether a government official is entitled to a limited good-faith immunity is the same for both federal and state officials, Butz v. Economou, 438 U.S. 478, 98 S.Ct. 2894, 57 L.Ed.2d 895 (1978), and requires that officials act with both “subjective” and “objective” good faith. Wood v. Strickland, 420 U.S. 308, 321, 95 S.Ct. 992, 1000, 43 L.Ed.2d 214 (1975). Thus, in Wood the Court held that: a school board member is not immune from liability for damages under § 1983 if he knew or reasonably should have known that the action he took within his sphere of official responsibility would violate the constitutional rights of the student affected, or if he took the action with malicious intention to cause a deprivation of constitutional rights or other injury to the student. Id. at 322, 95 S.Ct. at 1001. This rationale was applied to prison officials in Procunier v. Navarette, 434 U.S. 555, 98 S.Ct. 855, 55 L.Ed.2d 24 (1978), where the Court stated that: Under the first part of the Wood v. Strickland rule, the immunity defense would be unavailing to petitioners if the constitutional right allegedly infringed by them was clearly established at the time of their challenged conduct, if they knew or should have known of that right, and if they knew or should have known that their conduct violated the constitutional norm. Id. at 562, 98 S.Ct. at 860. Since Trapnell does not challenge the magistrate’s finding that the defendants acted with subjective good faith, the issue" }, { "docid": "8589488", "title": "", "text": "the injured party with an opportunity for recompense. See Butz v. Economou, 438 U.S. at 506, 98 S.Ct. at 2910. In Harlow, the Supreme Court reformulated the standard for determining qualified immunity. Prior to Harlow, the qualified immunity test had two prongs: one objective and one subjective. See, e.g., Wood v. Strickland, 420 U.S. 308, 322, 95 S.Ct. 992, 1001, 43 L.Ed.2d 214 (1975). Under the objective prong, an official was not shielded from liability if he “knew or reasonably should have known that the action he took within his sphere of official responsibility would violate the constitutional rights of [plaintiffs].” Id. An official would be denied immunity under the subjective prong if “he took the action with the malicious intention to cause a deprivation of constitutional rights or other injury.” Id. Because of its concern that the subjective, .or good faith component of qualified immunity would entail wide-ranging discovery into the official’s motivation, the Court in Harlow eliminated the subjective prong. 457 U.S. at 816-19, 102 S.Ct. at 2738-39. Instead, it fashioned a new test for qualified immunity as follows: “government officials performing discretionary functions generally are shielded from liability for civil damages insofar as their conduct does not violate clearly established statutory or constitutional rights of which a reasonable person would have known.” Id. at 818, 102 S.Ct. at 2738 (emphasis added). No other inquiry is relevant. See Davis v. Scherer, — U.S. -, 104 S.Ct. 3012, 82 L.Ed.2d 139 (1984). In a footnote following the crafting of the new test, the Court declared that it “need not define here the circumstances under which ‘the state of the law’ should be ‘evaluated by reference to the opinions of this Court, of the Courts of Appeals, or of the local District Court.’ ” Id., 457 U.S. at 818 n. 32, 102 S.Ct. at 2739 n. 32 (quoting Procunier v. Navarette, 434 U.S. 555, 565, 98 S.Ct. 855, 861, 55 L.Ed.2d 24 (1978)). Thus, lower courts have been given the task of creating a formula for identifying what constitutes “clearly established” law. See Comment, Harlow v. Fitzgerald: The Lower Courts" }, { "docid": "4188743", "title": "", "text": "the burden of paying monetary damages if their actions are subsequently found to have violated the rights of a citizen. These officials, however, are protected not by their unexplained dismissal from a given lawsuit, but rather, by application of the doctrine of immunity. In Procunier v. Navarette, 434 U.S. 555, 561, 98 S.Ct. 855, 859, 55 L.Ed.2d 24 (1977), the Supreme Court held that a state prison official’s exposure to personal liability in a § 1983 suit is controlled by the doctrine of “qualified immunity.” Under this doctrine, a state prison official will be immune from having to pay damages unless the official “knew or reasonably should have known that the action he took within his sphere of official responsibility would violate the constitutional rights of the [citizen] affected, or [unless] he took the action with the malicious intention to cause a deprivation of constitutional rights or other injury .... ” Wood v. Strickland, 420 U.S. 306, 322, 95 S.Ct. 992, 1000, 43 L.Ed.2d 214 (1975), quoted in Procunier v. Navarette, supra, 434 U.S., at 562, 98 S.Ct., at 859; see Butz v. Economou, 438 U.S. 478, 498-504, 98 S.Ct. 2894, 2906-2909, 57 L.Ed.2d 895 (1977) (tracing the development of and extending the qualified immunity doctrine); Note, Civil Rights Suits Against State and Local Governmental Entities and Officials: Rights of Action, Immunities and Federalism, 53 S.Calif.L.Rev. 945, 1052-1053 (analyzing judicial applications of qualified immunity doctrine). In elaborating on the first part of the qualified immunity standard delineated in Wood v. Strickland, the Supreme Court in Procunier v. Navarette explained that an official is not immune if “the constitutional right allegedly infringed . .. was clearly established at the time of [the] challenged conduct, if [he] knew or should have known of that right, and if he knew or should have known that his conduct violated the constitutional norm.” Procunier v. Navarette, supra, 434 U.S., at 562, 98 S.Ct., at 859. It is clear that in order to apply this first prong of the qualified immunity test an appellate court must rely on the district court’s findings of fact as to:" }, { "docid": "19799559", "title": "", "text": "individual defendants was its rejection of their asserted § 1983 defense of qualified immunity. Under Wood v. Strickland, 420 U.S. 308, 95 S.Ct. 992, 43 L.Ed.2d 214 (1975) and its progeny, there are “two components to the qualified immunity defense, one subjective and one objective.” Fowler v. Cross, 635 F.2d 476, 482 (5th Cir. 1981); see also Bogard v. Cook, 586 F.2d 399 (5th Cir. 1978), cert. denied, 444 U.S. 883, 100 S.Ct. 173, 62 L.Ed.2d 113 (1979). Under the subjective test, an official is not entitled to the defense if he acts “with the malicious intention to cause a deprivation of constitutional rights or other injury” to the plaintiff. Wood, 420 U.S. at 322, 95 S.Ct. at 1000; Fowler, 635 F.2d at 482. Under the objective test, a public official “is not immune from liability ... if he knew or reasonably should have known that the action he took within his sphere of official responsibility would violate the constitutional rights” of the plaintiff. Wood, 420 U.S. at 322, 95 S.Ct. at 1000. Though this test requires public officials to be aware of the legal rights of persons who are affected by their actions, it does not charge officials “ ‘with predicting the future course of constitutional law.’ ” Wood, 420 U.S. at 322, 95 S.Ct. at 1000, quoting Pierson v. Ray, 386 U.S. 547, 557, 87 S.Ct. 1213, 1219, 18 L.Ed.2d 288 (1967). The constitutional rights at issue must have been “clearly established” at the time the official acted in order to hold him personally liable. Wood, 420 U.S. at 322, 95 S.Ct. at 1000; see Procunier v. Navarette, 434 U.S. 555, 562, 98 S.Ct. 855, 859, 55 L.Ed.2d 24 (1978); Fowler, 635 F.2d at 482-83. The district court found that the individual defendants acted without malice and in subjective good faith in establishing and implementing the maternity leave policy, and we affirm that finding as amply supported by the record. The district court further held, however, that the individual defendants were liable because they should have known that their actions violated the constitutional rights of the teachers, citing" }, { "docid": "22172785", "title": "", "text": "984, 47 L.Ed.2d 128 (1976), other executive officers performing pros-ecutorial or adjudicative functions, see Butz v. Economou, 438. U.S. 478, 98 S.Ct. 2894, 57 L.Ed.2d 895 (1978), and the President of the United States, Nixon v. Fitzgerald, 457 U.S. 731, 102 S.Ct. 2690, 73 L.Ed.2d 349 (1982). . Under the qualified immunity standard, government officials are shielded from liability for civil damages insofar as their conduct does not violate clearly established statutory or constitutional rights of which a reasonable person would have known. Harlow v. Fitzgerald, 457 U.S. at 818, 102 S.Ct. at 2738, 73 L.Ed.2d at 410. Qualified immunity has been recognized for certain Executive Branch officials, see Butz v. Eco-nomou, 438 U.S. 478, 98 S.Ct. 2894, 57 L.Ed.2d 895 (1978), governors and their aids, see Scheuer v. Rhodes, 416 U.S. 232, 94 S.Ct. 1683, 40 L.Ed.2d 90 (1974), and police officers, see Pierson v. Ray, 386 U.S. 547, 555, 87 S.Ct. 1213, 18 L.Ed.2d 288 (1967). . The Wood court divided the qualified immunity defense into objective and subjective elements. The objective element involves an official's knowledge of and respect for basic constitutional rights. The subjective component refers to \"permissible intentions.\" Wood, 420 U.S., at 322, 95 S.Ct. at 1000-01. Under this test, the defense of qualified immunity was defeated if an official \"knew or reasonably should have known that the action he took within the sphere of official responsibility would violate the constitutional rights of the [plaintiff], or if he took the action with malicious intention to cause a deprivation of constitutional rights or other injury____” Id. at 322, 95 S.Ct. at 1001. . We recognize that this aspect of Harlow dealt immediately with the extent of the \"qualified\" or “good faith” immunity defense. However, its rationale for eliminating the subjective intent inquiry for good faith immunity — to eliminate the frustrating interferences with continued official duties arising from the very nature of the litigation process — applies with even greater force where the official's special functions or constitutional status accords an absolute immunity to damage suits. Moreover, as Judge Higginbotham has emphasized for us “[the] distinction" }, { "docid": "17856898", "title": "", "text": "acts “with the malicious intent to cause a deprivation of constitutional rights or other injury” to plaintiff. 420 U.S. at 322, 95 S.Ct. at 1001; Bogara v. Cook, 586 F.2d 399 (5th Cir. 1978). Appellant does not argue that defendants acted with malicious intent to harm him. Rather, appellant argues that defendants forfeited their immunity under the objective part of the Wood v. Strickland test in that each defendant knew or should have known that application of the policy of routinely and automatically placing new admittees into Ward 1 and the subsequent decision to transfer Dilmore to Ward 2 violated Dilmore’s right to be held in the least restrictive environment. Under the objective standard, even an official who acts in the sincere subjective belief that his actions are proper will lose his qualified immunity if those actions contravene “settled, indisputable law.” 420 U.S. at 321, 95 S.Ct. at 1000. See Schiff v. Williams, 519 F.2d 257, 261 (5th Cir. 1975). An official is thus liable under § 1983 “if he knew or reasonably should have known that the action he took within the sphere of official responsibility would violate the eon stitutional rights” of the person affected. 420 U.S. at 322, 95 S.Ct. at 1001; Bogara, 586 F.2d at 411. But “[t]he fulcrum for this objective first half of Wood is the existence, at the time of the official’s action, of clearly established judicial decisions that make his action unconstitutional.” Bogara, 586 F.2d at 411. We do not expect an official to predict the future course of constitutional law, id.; see also Wood, 420 U.S. at 322, 95 S.Ct. at 1001; O’Connor v. Donaldson, 422 U.S. 563, 577, 95 S.Ct. 2486, 2495, 45 L.Ed.2d 396 (1975); but “he will not be shielded from liability if he acts ‘with such disregard of the [plaintiff’s] clearly established constitutional rights that his action cannot reasonably be characterized as being in good faith.’ ” Procunier v. Navarette, 434 U.S. 55, 562, 98 S.Ct. 855, 860, 55 L.Ed.2d 24 (1978), quoting Wood, 420 U.S. at 322, 95 S.Ct. at 1001. The Whitfield Policy For the" }, { "docid": "3414465", "title": "", "text": "for on this record there was no basis to support a finding of good faith. Appellants’ reliance on Wood v. Strickland, 420 U.S. 308, 95 S.Ct. 992, 43 L.Ed.2d 214 (1975), and Scheuer v. Rhodes, 416 U.S. 232, 94 S.Ct. 1683, 40 L.Ed.2d 90 (1974), to support their argument that they were entitled to an instruction regarding qualified immunity is wholly misplaced. In Wood the Supreme Court ruled that a state official is not immune from liability for damages under section 1983 if he knew or reasonably should have known that the action he took within his sphere of official responsibility would violate the constitutional rights of the student affected, or if he took the action with the malicious intention to cause a deprivation of constitutional rights or other injury to the student. 420 U.S. at 322, 95 S.Ct. at 1001. There are objective and subjective aspects to the defense of good faith immunity. See Morrison v. Jones, supra, 607 F.2d at 1274; Johnson v. Duffy, 588 F.2d 740, 745 (9th Cir. 1978); Walker v. Hoffman, 583 F.2d 1073 (9th Cir. 1978) (per curiam), cert. denied, 439 U.S. 1127, 99 S.Ct. 1044, 59 L.Ed.2d 88 (1979). There is no objective basis for the defense if it is not reasonable to believe that there was a lawful right to take the action in question. In this respect state officials are liable under section 1983 if the constitutional right allegedly infringed by them was clearly established at the time of their challenged conduct, if they knew or should have known of that right, and if they knew or should have known that their conduct violated the constitutional norm. Procunier v. Navarette, 434 U.S. 555, 562, 98 S.Ct. 855, 860, 55 L.Ed.2d 24 (1978). As to the subjective aspect of the defense, an official forfeits immunity if, whatever the objective state of the law at the time of his action, his own intent was to harm the plaintiff for a reason prohibited by the Constitution. McNamara v. Moody, 606 F.2d 621, 625 (5th Cir. 1979). The objective test is not satisfied here because" }, { "docid": "18692778", "title": "", "text": "833 and n. 32. See also Butz v. Economou, 438 U.S. 478, 496, 98 S.Ct. 2894, 2905, 57 L.Ed.2d 895 (1978). In Wood v. Strickland, 420 U.S. at 322, 95 S.Ct. at 1000, the Supreme Court refined this both subjective and objective test: [An official] is not immune from liability for damages under § 1983 if he knew or reasonably should have known that the action he took within his sphere of official responsibility would violate the constitutional rights of the [person] affected, or if he took the action with the malicious intention to cause a deprivation of constitutional rights or other injury to the [person]. See Procunier v. Navarette, 434 U.S. at 561, 98 S.Ct. at 859; O’Connor v. Donaldson, 422 U.S. at 577, 95 S.Ct. at 2494; Reese v. Nelson, 598 F.2d 822, 826-27 (3d Cir.), cert. denied, 444 U.S. 970, 100 S.Ct. 463, 62 L.Ed.2d 384 (1979); McKinnon v. Patterson, 568 F.2d at 832-33; Duchesne v. Sugarman, 566 F.2d at 832-33; Sala v. County of Suffolk, 604 F.2d 207, 209-10 (2d Cir. 1979), judgment vacated, 446 U.S. 903, 100 S.Ct. 1827, 64 L.Ed.2d 255 (1980) (in light of Owen v. City of Independence, 445 U.S. 622, 100 S.Ct. 1398, 63 L.Ed.2d 673 (1980)). See also Butz v. Economou, 438 U.S. at 498, 98 S.Ct. at 2906. Cf: Lake Country Estates v. Tahoe Planning Agency, 440 U.S. 391, 406, 99 S.Ct. 1171, 1180, 59 L.Ed.2d 401 (1979). As applied in this Circuit, the test of good faith requires further that “higher-ranking officials ... be held to a greater standard of the knowledge of the law.” Duchesne v. Sugarman, 566 F.2d at 833 n. 32. Assessing the Commissioners’ actions under these criteria, these defendants fall short of establishing a defense of qualified immunity. At the time of the plaintiffs’ medicaid determinations, federal law and HHS policy statements required that SSI financial eligibility criteria be used applied to SSI medically needy persons and that qualified individuals be provided a choice of categories. Because the actions of the County Commissioners ran directly contrary to this federal law, of which the defendants" }, { "docid": "23354271", "title": "", "text": "contentions. IV. Official Immunity Because the district court found that no constitutional rights were violated, it did not have occasion to reach the issue of the applicability of the good faith immunity defense to Commissioner Keve and Superintendent Anderson. The defendants contend that even if this court finds that Winsett’s constitutional rights were violated, we may not assess damages against Commissioner Keve. Relying on the Supreme Court’s decisions in Wood v. Strickland, 420 U.S. 308, 95 S.Ct. 992, 43 L.Ed.2d 214 (1975), and Procunier v. Navarette, 434 U.S. 555, 98 S.Ct. 855, 55 L.Ed.2d 24 (1978), defendants argue that Commissioner Keve enjoys an official immunity from recoveries in damages. They also observe that should we find Superintendent Anderson liable, we must remand to the district court for findings as to Anderson’s possible immunity. Because the district court made no findings as to either Keve or Anderson’s immunity, we believe it necessary to remand the case to the district court. In Wood v. Strickland, supra, the Supreme Court recognized a qualified immunity for school board members. The Court held that a school board member is not immune from liability for damages under § 1983 if he knew or reasonably should have known that the action he took within his sphere of official responsibility would violate the constitutional rights of the student affected, or if he took the action with the malicious intention to cause a deprivation of constitutional rights or other injury to the student. 420 U.S. at 322, 95 S.Ct. at 1001. More recently, in Procunier v. Navarette, supra, the Court applied Wood to an inmate’s section 1983 damage action against prison officials. It also made clear that Wood established two separate grounds for rejecting official immunity in a particular case. First, the Court stated: [T]he immunity defense would be unavailing to petitioners if the constitutional right allegedly infringed by them was clearly established at the time of their challenged conduct, if they knew or should have known of that right and if they knew or should have known that their conduct violated the constitutional norm. 434 U.S. at 562," }, { "docid": "3983895", "title": "", "text": "U.S. 945, 86 S.Ct. 1202, 16 L.Ed.2d 208 (1966). II Following the grant of permanent injunction, Appellees moved the District Court for a summary judgment on the issue of damages, contending that they were entitled to qualified or good-faith immunity from personal liability for damages. The District Court granted summary judgment, and this appeal followed. The question presented is whether the District Court erred in holding as matter of law that qualified or good-faith immunity protected Appellees from personal liability for damages resulting from their firing of Appellant in violation of her constitutional rights. In Wood v. Strickland, 420 U.S. 308, 95 S.Ct. 992, 43 L.Ed.2d 214 (1975), the Supreme Court determined that school officials are entitled to qualified immunity from damage awards under § 1983 for violation of the constitutional rights of students. It stated: A compensatory award will be appropriate only if the school board member has acted * * * with such disregard of the student’s clearly established constitutional rights that his action cannot reasonably be characterized as being in good faith. 420 U.S. at 322, 95 S.Ct. at 1001. The Court made it clear, however, that a school official “must be held to a standard of conduct based * * * on knowledge of the basic, unquestioned constitutional rights of his charges”. Id. The Court held: Therefore, in the specific context of school discipline, we hold that a school board member is not immune from liability for damages under § 1983 if he knew or reasonably should have known that the action he took within his sphere of official responsibility would violate the constitutional rights of the student affected * * * Id. In Procunier v. Navarette, 434 U.S. 555, 98 S.Ct. 855, 55 L.Ed.2d 24 (1978), the Court restated the Wood v. Strickland rule, breaking it into three parts: Under the * * * Wood v. Strickland rule, the immunity defense would be unavailing to petitioners if the constitutional right allegedly infringed by them was clearly established at the time of their challenged conduct, if they knew or should have known of that right, and" }, { "docid": "6379873", "title": "", "text": "of Federal Bureau of Narcotics, 403 U.S. 338, 91 S.Ct. 1999, 29 L.Ed.2d 619 (1971), held that there is a cause of action for damages for a violation of Fourth Amendment rights by federal agents. Several courts of appeals, applying Bivens, have held that a violation of First Amendment rights by federal officials gives rise to a cause of action for damages. Dellums v. Powell, 566 F.2d 167, 194-95 (D.C.Cir.1977), cert. denied, 438 U.S. 916, 98 S.Ct. 3147, 57 L.Ed.2d 1161, rehearing denied, 439 U.S. 886, 99 S.Ct. 234, 58 L.Ed.2d 201 (1978); Paton v. LaPrade, 524 F.2d 862, 869-71 (2d Cir. 1975); Yiamouyiannis v. Chemical Abstracts Service, 521 F.2d 1392, 1393 (6th Cir. 1975) (per curiam). Accordingly, we will entertain Trapnell’s suit as one brought directly under the First Amendment. IV. Trapnell’s initial argument on the issue of immunity is that the defendants failed to plead official immunity as a defense and cannot now raise the issue. However, there was evidence presented before the magistrate which went to the defendants’ good faith and to the issue of official immunity. Additionally, Trapnell’s objection to the magistrate’s report discussed the magistrate’s finding of immunity. We will therefore consider the issue of immunity as having been tried by the implied consent of the parties. F.R.Civ.P. 15(b); Bradford Audio Corp. v. Pious, 392 F.2d 67, 73-74 (2d Cir. 1968). See also Federal Savings & Loan Ins. Corp. v. Hogan, 476 F.2d 1182 (7th Cir. 1973); Wagner v. United States, 573 F.2d 447, 452 (7th Cir. 1978). Trapnell’s next claim is that the defendants lacked the good faith necessary for official immunity to be granted. The standard to determine whether a government official is entitled to a limited good-faith immunity is the same for both federal and state officials, Butz v. Economou, 438 U.S. 478, 98 S.Ct. 2894, 57 L.Ed.2d 895 (1978), and requires that officials act with both “subjective” and “objective” good faith. Wood v. Strickland, 420 U.S. 308, 321, 95 S.Ct. 992, 1000, 43 L.Ed.2d 214 (1975). Thus, in Wood the Court held that: a school board member is not immune from" }, { "docid": "9854827", "title": "", "text": "restrictive alternatives render summary judgment as to plaintiff’s claim under the Due Process clause improper as well. 2. Qualified Immunity It is well established that governmental officials have qualified immunity from liability for damages under 42 U.S.C. § 1983 for discretionary acts performed in good faith. Wood v. Strickland, 420 U.S. 308, 321-22, 95 S.Ct. 992, 1000, 43 L.Ed.2d 214 (1975). The immunity does not apply only where the official “knew or reasonably should have known that the action he took within his sphere of official responsibility would violate the constitutional rights of the [person] affected, or he took the action with the malicious intention to cause a deprivation of constitutional rights or other injury to the [person].” Id. at 322, 95 S.Ct. at 1000. The immunity extends to subordinate officials not entitled to the absolute immunity enjoyed by high officials such as legislators, judges, and prosecutors; those subordinate officials include prison officials and officers. Procunier v. Navarette, 434 U.S. 555, 561, 98 S.Ct. 855, 859, 55 L.Ed.2d 24 (1978). The purpose of the qualified immunity is to assure decision-makers that “action taken in the good-faith fulfillment of their responsibilities and within the bounds of reason under all the circumstances will not be punished and that they need not exercise their discretion with undue timidity.” Wood v. Strickland, 402 U.S. at 321, 95 S.Ct. at 1000. As such, the scope of the protection afforded thereby will depend upon the “scope of discretion and responsibilities of the office and all the circumstances as they reasonably appeared at the time of the action on which liability is sought to be based.” Scheuer v. Rhodes, 416 U.S. 232, 247, 94 S.Ct. 1683, 1691, 40 L.Ed.2d 90 (1974). The inquiry as to the official’s good faith involves both an objective and a subjective test: “the existence of reasonable grounds for the belief formed at the time and in light of all the circumstances, coupled with good-faith belief [that the action was proper] .... ” Id. at 247-48, 94 S.Ct. at 1691-92. “[T]he matter is to be judged on the facts as they appeared then" }, { "docid": "15698773", "title": "", "text": "personally responsible for the delay in his treatment. Therefore, the defendant has failed to prove his claimed denial of medical treatment and it is accordingly dismissed. Finally, the prison officials contend they acted in good faith on a belief that their actions conformed to the procedural requirements of Wolff, supra, and they should therefore be immune from damages. The Supreme Court has recognized a qualified good-faith immunity for state prison officials acting within the scope of their official responsibilities when damages are sought for constitutional violations under 42 U.S.C. § 1983. Procunier v. Navarette, 434 U.S. 555, 98 S.Ct. 855, 55 L.Ed.2d 24 (1978). Accord, Knell v. Bensinger, 522 F.2d 720 (7th Cir. 1975). In Navarette, a state prisoner brought a § 1983 action against prison officials charging wrongful interference with his outgoing mail, a violation of his First Amendment rights. The Supreme Court held that the qualified immunity it had outlined for school officials in Wood v. Strickland, 420 U.S. 308, 95 S.Ct. 992, 43 L.Ed.2d 214 (1975), was applicable to state prison officials as well. The test enunciated in Navarette consists of two parts: Under the first part of the Wood v. Strickland rule, the immunity defense would be unavailing to [the prison officials] if the constitutional right allegedly infringed by them was clearly established at the time of their challenged conduct, if they knew or should have known of that right and if they knew or should have known that their conduct violated the constitutional norm. ****** [T]he second branch of the Wood v. Strickland standard ... would authorize liability where the official has acted with “malicious intention” to deprive the plaintiff of a constitutional right or to cause him “other injury.” Navarette, 434 U.S. at 562, 566, 98 S.Ct. at 862, quoted in Chapman v. Pickett, 586 F.2d 22, 25 (7th Cir. 1978). It is this two-pronged test which we apply here. This denial of witnesses occurred in December 1977. The Wolff decision provided only that a request for witnesses may be denied if it will be unduly hazardous to institutional safety or correctional goals. Wolff," }, { "docid": "362477", "title": "", "text": "this distinction and conclude that a listing placed in a book or directory such as we are presented with here is entitled to the same protection as an advertise ment placed in a newspaper. Therefore, on the authority of Bates, we hold that Opinion 290 is unconstitutional as violating the First Amendment. III. IMMUNITY TO DAMAGES UNDER § 1983 On plaintiffs’ claim for damages under § 1983, the district court granted the defendants’ motion for summary judgment on the ground that the individual members of the Committee, when performing Committee functions, enjoy absolute immunity from damage suits under § 1983. The Supreme Court has extended absolute immunity to judges, legislators, and prosecutors when they are performing their respective judicial, legislative, and prosecutorial functions. In contrast, other governmental officials enjoy only a qualified immunity shielding them against liability when they act in good faith and reasonably believe their actions are constitutional. Stated differently, to be entitled to such immunity, they must act reasonably and without malice. Wood v. Strickland, 420 U.S. 308, 321-22, 95 S.Ct. 992, 43 L.Ed.2d 214 (1975); Scheuer v. Rhodes, 416 U.S. 232, 247-48, 94 S.Ct. 1683, 40 L.Ed.2d 90 (1974); Pierson v. Ray, 386 U.S. 547, 557, 87 S.Ct. 1213, 18 L.Ed.2d 288 (1967). In Wood, supra 420 U.S. at 322, 95 S.Ct. at 1001, the Court stated: “[We] [held] that a school board member is not immune from liability for damages under § 1983 if he knew or reasonably should have known that the action he took within his sphere of official responsibility would violate the constitutional rights of the student affected, or if he took the action with the malicious intention to cause a deprivation of constitutional rights or other injury to the student.” The Supreme Court recently reaffirmed this test in Procunier v. Navarette, 434 U.S. 555, 560-562, 98 S.Ct. 855, 55 L.Ed.2d 24 (1978). Neither the Supreme Court nor this circuit has been confronted with the issue of whether the doctrine of absolute immunity should be extended to members of a committee such as this one, appointed by a state supreme court, when" }, { "docid": "2929462", "title": "", "text": "defense; indeed, appellants insist that “discovery in this case had been completed before the district court entered summary judgment in 1978.” Brief for Appellants at 16. Moreover, the parties have briefed and argued the qualified immunity defense before this court. Given the Supreme Court’s admonition that insubstantial claims against government officials should not proceed to trial, Harlow v. Fitzgerald, supra, 102 S.Ct. at 2727 (citing Butz v. Economou, 438 U.S. 478, 507-08, 98 S.Ct. 2894, 2911, 57 L.Ed.2d 895 (1978)), we would be remiss in our appellate duty were we to order yet another remand to resolve what is a purely legal threshold question. See, e.g., Hall v. United States, 704 F.2d 246, 249-51 (6th Cir.1983); Silverman v. Ballantine, 694 F.2d 1091, 1096 (7th Cir.1982); Wolfel v. Sanborn, 691 F.2d 270, 272 (6th Cir.1982) (per curiam) (Weick, J., dissenting), cert. denied, — U.S. —, 103 S.Ct. 751, 74 L.Ed.2d 969 (1983). A. The Harlow Standard Before Harlow, qualified immunity was denied an official who knew or reasonably should have known that the action he took within his sphere of official responsibility would violate the constitutional rights of the [complainant] or if [the official] took the action with malicious intention to cause a deprivation of constitutional rights or other injury. Wood v. Strickland, 420 U.S. 308, 320, 95 S.Ct. 992, 999, 43 L.Ed.2d 214 (1975). The old test thus had objective and subjective elements: immunity was available only if the official had neither violated clearly established law nor acted out of malice. See, e.g., Procunier v. Navarette, 434 U.S. 555, 562, 98 S.Ct. 855, 859, 55 L.Ed.2d 24 (1978). Aware that denying absolute immunity to officials might subject them to harassing civil litigation, the Court admonished judges quickly to weed out frivolous claims through firm application of the Federal Rules of Civil Procedure. Butz v. Econo-mou, supra, 438 U.S. at 507-08, 98 S.Ct. at 2911; see Hanrahan v. Hampton, 446 U.S. 754, 765, 100 S.Ct. 1987, 1993, 64 L.Ed.2d 670 (1980) (Powell, J., concurring in part and dissenting in part). The Court discovered, however, that questions of subjective intent are rarely" }, { "docid": "893731", "title": "", "text": "v. Strickland, 420 U.S. 308, 321-22, 95 S.Ct. 992, 1000-1001, 43 L.Ed.2d 214 (1975), the Court held that the qualified immunity granted to public officials requires elements of both “objective” and “subjective” good faith. This standard of good faith was applied in Procunier v. Navarette, 434 U.S. 555, 562-66, 98 S.Ct. 855, 859-862, 55 L.Ed.2d 24 (1978), where the district court had granted summary judgment on the basis of qualified immunity in favor of state prison officials in a § 1983 action alleging interference with prisoners’ outgoing mail. The Court held that the court of appeals erred in reversing the summary judgment and that the prison officials were entitled to immunity unless they “knew or reasonably should have known” that the action taken with respect to a prisoner’s mail would violate his federal constitutional rights or that the action had been taken with the “malicious intention” to cause a deprivation of constitutional rights or other injury. Id. at 561-62, 98 S.Ct. at 859-860. This court has consistently followed the rule stated in Mark v. Groff, 521 F.2d 1376, 1379-80 (9 Cir. 1975), following an analysis of prior Supreme Court decisions, including Scheuer v. Rhodes, 416 U.S. 232, 94 S.Ct. 1683, 40 L.Ed.2d 90 (1974): Under the qualified immunity doctrine, a government officer performing acts in the course of official conduct is insulated from damage suits only if (1) at the time and in light of all the circumstances there existed reasonable grounds for the belief that the action was appropriate and (2) the officer acted in good faith, (footnote omitted) (emphasis in original) In order to claim this immunity, Bergman must show that (1) he was acting sincerely and with the belief that he was doing right, not knowing that his official action would violate Harris’s constitutional rights (subjective good faith); and (2) he should not reasonably have known that his official action would violate those rights (objective good faith). Wood, 420 U.S. at 321-22, 95 S.Ct. at 1000-1001. Referring first to the objective standard, Bergman cannot be “charged with predicting the future course of constitutional law,” Pierson v. Ray," } ]

[ { "docid": "22668737", "title": "", "text": "federal courts a paramount role” in this endeavor, Patsy v. Board of Regents of Florida, 457 U. S. 496, 503 (1982). Section 1983 provides a federal forum to remedy many deprivations of civil liberties, but it does not provide a federal forum for litigants who seek a remedy against a State for alleged deprivations of civil liberties. The Eleventh Amendment bars such suits unless the State has waived its immunity, Welch v. Texas Dept. of Highways and Public Transportation, 483 U. S. 468, 472-473 (1987) (plurality opinion), or unless Congress has exercised its undoubted power under § 5 of the Fourteenth Amendment to override that immunity. That Congress, in passing § 1983, had no intention to disturb the States’ Eleventh Amendment immunity and so to alter the federal-state balance in that respect was made clear in our decision in Quern. Given that a principal purpose behind the enactment of § 1983 was to provide a federal forum for civil rights claims, and that Congress did not provide such a federal forum for civil rights claims against States, we cannot accept petitioner’s argument that Congress intended nevertheless to create a cause of action against States to be brought in state courts, which are precisely the courts Congress sought to allow civil rights claimants to avoid through § 1983. This does not mean, as petitioner suggests, that we think that the scope of the Eleventh Amendment and the scope of § 1983 are not separate issues. Certainly they are. But in deciphering congressional intent as to the scope of § 1983, the scope of the Eleventh Amendment is a consideration, and we decline to adopt a reading of § 1983 that disregards it. Our conclusion is further supported by our holdings that in enacting §1983, Congress did not intend to override well-established immunities or defenses under the common law. “One important assumption underlying the Court’s decisions in this area is that members of the 42d Congress were familiar with common-law principles, including defenses previously recognized in ordinary tort litigation, and that they likely intended these common-law principles to obtain, absent specific provisions" } ]

[ { "docid": "12683914", "title": "", "text": "Section 1983 creates a cause of action against any person who, under color of state law, deprives “any citizen of the United States ... of any rights, privileges, or immunities secured by the Constitution and laws.” 42 U.S.C. § 1983. Although § 1983 authorizes lawsuits to enforce federal statutory rights, Maine v. Thiboutot, 448 U.S. 1, 4, 100 S.Ct. 2502, 65 L.Ed.2d 555 (1980), it “does not provide an avenue for relief every time a state actor violates a federal law,” City of Rancho Palos Verdes v. Abrams, 544 U.S. 113, 125 S.Ct. 1453, 1458, 161 L.Ed.2d 316 (2005). Consistent with the terms of § 1983, a claimant must demonstrate that the underlying statute creates enforceable “rights” because “it is rights ” after all, “not the broader or vaguer ‘benefits’ or ‘interests,’ that may be enforced under” the statute. Gonzaga Univ. v. Doe, 536 U.S. 273, 283, 122 S.Ct. 2268, 153 L.Ed.2d 309 (2002). In ascertaining “whether Congress intended to create a federal right” in the freedom-of-choice provision, id., the Court has directed us to look at three factors, see Blessing v. Freestone, 520 U.S. 329, 340-41, 117 S.Ct. 1353, 137 L.Ed.2d 569 (1997); see also Westside Mothers v. Haveman, 289 F.3d 852, 862-63 (6th Cir.2002). “First, Congress must have intended that the provision in question benefit the plaintiff.” Blessing, 520 U.S. at 340, 117 S.Ct. 1353. In answering this initial inquiry, courts look for a statutory right or “individual entitlement,” Gonzaga, 536 U.S. at 287, 122 S.Ct. 2268, that is “unambiguously conferred,” id. at 283, 122 S.Ct. 2268, by the use of “rights-creating language,” id. at 284 n. 3, 122 S.Ct. 2268. An “aggregate focus” unconcerned “with whether the needs of any particular person have been satisfied,” id. at 288, 122 S.Ct. 2268 (internal quotation marks omitted), is insufficient; the statute must be “phrased in terms of the persons benefited,” id. at 284, 122 S.Ct. 2268, and use “individually focused terminology,” id. at 287, 122 S.Ct. 2268. “Second, the plaintiff must demonstrate that the right assertedly protected by the statute is not so vague and amorphous that its enforcement" }, { "docid": "20324474", "title": "", "text": "the state” such that it had Eleventh Amendment immunity). McNally also does not claim that, with respect to the §§ 1981, 1981a, and 1983 claims, Hawaii unequivocally waived its immunity from those claims. See Witt, 491 U.S. at 66, 109 S.Ct. 2304. Nor does McNally assert that UHH waived that immunity by failing to assert it. See Arizona v. Bliemeister (In re Bliemeister), 296 F.3d 858, 861 (9th Cir.2002) (calling Eleventh Amendment immunity quasi-jurisdictional in that it is waivable when a state fails to assert it). With respect to the §§ 1981, 1981a, and 1983 claims, the Eleventh Amendment bars McNally’s money damage claims unless Congress abrogates that immunity. Congress has not done so. See Mitchell v. Los Angeles Cmty. College Dist., 861 F.2d 198, 201 (9th Cir.1988) (holding that the Eleventh Amendment bars §§ 1981 and 1983 claims); Shaughnessy v. Hawaii, 2010 WL 2573355, *5 (D.Haw., June 24, 2010) (noting that § 1981 does not abrogate the states’ Eleventh Amendment immunity); Shipley v. Hawaii, 2006 WL 1582431, *3 (D.Haw., June 2, 2006) (noting that Congress did not abrogate the states’ Eleventh Amendment immunity with respect to §§ 1981 and 1983 claims); Yowman v. Jefferson Cnty. Cmty. Supervision & Corn. Dept., 370 F.Supp.2d 568, 588 (E.D.Tex.2005) (holding that the Eleventh Amendment bars §§ 1981 and 1981a claims). McNally does not oppose dismissal of the §§ 1981, 1981a, 1983 claims for money damages based on the Eleventh Amendment, arguing instead that the claims should not be dismissed because she is seeking prospective injunctive relief. In Ex parte Young, 209 U.S. 123, 28 S.Ct. 441, 52 L.Ed. 714 (1908), the Supreme Court recognized that a “suit challenging the constitutionality of a state official’s action is not one against the State.” Pennhurst State Sch. & Hosp. v. Halderman, 465 U.S. 89, 103, 104 S.Ct. 900, 79 L.Ed.2d 67 (1983) (citing Young). Under the Ex Parte Young doctrine, the federal court may enjoin a state official’s future conduct when a plaintiff brings suit alleging a violation of federal law, Edelman v. Jordan, 415 U.S. 651, 94 S.Ct. 1347, 39 L.Ed.2d 662 (1974), but not" }, { "docid": "1560144", "title": "", "text": "State Police, 491 U.S. 58, 71, 109 S.Ct. 2304, 2312, 105 L.Ed.2d 45 (1989), in which the Court held, “[Njeither a State nor its officials acting in their official capacities are ‘persons’ under § 1983.” The Will Court further noted, Section 1983 provides a federal forum to remedy many deprivations of civil liberties, but it does not provide a federal forum for litigants who seek a remedy against a State for alleged deprivations of civil liberties. The Eleventh Amendment bars such suits unless the State has waived its immunity, or unless Congress has exercised its undoubted power under § 5 of the Fourteenth Amendment to override that immunity. 491 U.S. at 66, 109 S.Ct. at 2309-10 (citation omitted). It is clear that SFUSD may not be sued under 42 U.S.C. section 1983. Nor is SFUSD a “municipality” falling under the Monell exception. See Monell v. Dep’t of Social Services, 436 U.S. 658, 98 S.Ct. 2018, 56 L.Ed.2d 611 (1978). The Ninth Circuit has specifically held that under California law, school districts are considered state agencies for purposes of the Eleventh Amendment. See Belanger, 963 F.2d at 251. SFUSD enjoys Eleventh Amendment immunity for section 1983 claims, and at any rate is not subject to section 1983 claims because it is not a “person” within the meaning of the statute. Therefore, the Court GRANTS Defendants’ motion as to this claim and DISMISSES WITH PREJUDICE Plaintiffs section 1988 claim against SFUSD. 3) SECTION 1985 Section 1985, as noted above, was enacted as part of the Civil Rights Act of 1871, also known as the Ku Klux Klan Act. The statute provides in relevant part: If two or more persons in any State or Territory conspire, or go in disguise on the highway or on the premises of another, for the purpose of depriving, either directly or indirectly, any person or class of persons of the equal protection of the laws, or of equal privileges and immunities of the laws; or for the purpose of preventing or hindering the constituted authorities of any State or Territory from giving or securing to all persons" }, { "docid": "16363162", "title": "", "text": "address only Klein’s section 1983 claims. Because Klein has not alleged racial animus, his claims under sections 1981 and 1985 are dismissed. See, e.g., Tilton v. Richardson, 6 F.3d 683, 686 (10th Cir.1993)(citing Griffin v. Breckenridge, 403 U.S. 88, 101-02, 91 S.Ct. 1790, 1797-98, 29 L.Ed.2d 338 (1971)); Kodish v. United Air Lines, Inc., 628 F.2d 1301, 1303 (10th Cir.1980). Additionally, section 1988 “does not create independent causes of action, it simply defines procedures under which remedies may be sought in civil rights action.” Hidahl v. Gilpin County Dep’t of Social Servs., 938 F.2d 1150, 1152 (10th Cir.1991) (internal quotations and citations omitted). 1. University of Kansas Medical Center and Kansas Civil Service Board Eleventh Amendment immunity provides protection for state governmental entities sued in federal court for damages unless the state waives its immunity. Atascadero State Hosp. v. Scanlon, 473 U.S. 234, 241, 105 S.Ct. 3142, 3146-47, 87 L.Ed.2d 171 (1985); Pennhurst State Sch. & Hosp. v. Halderman, 465 U.S. 89, 100, 104 S.Ct. 900, 907-08, 79 L.Ed.2d 67 (1984); Edelman v. Jordan, 415 U.S. 651, 662-63, 94 S.Ct. 1347, 1355-56, 39 L.Ed.2d 662 (1974); Hernandez v. State of N.M., No. 94-2287, 1995 WL 490289, at *3 (10th Cir.1995) (Eleventh Amendment “does not bar all actions against state entities, but only damages actions against state entities brought in federal court”), cert. denied, — U.S.-, 116 S.Ct. 943, 133 L.Ed.2d 868 (1996); Ramirez v. Oklahoma Dep’t of Mental Health, 41 F.3d 584, 588 (10th Cir.1994). This jurisdictional bar applies regardless of whether plaintiff seeks monetary or prospective relief. Johnson v. Wefald, 779 F.Supp. 154, 155-56 (D.Kan.1991)(citing Pennhurst, 465 U.S. at 100, 104 S.Ct. at 907-08). Eleventh Amendment immunity applies to suits arising under 42 U.S.C. § 1983. Quern v. Jordan, 440 U.S. 332, 339-40, 99 S.Ct. 1139, 1144-45, 59 L.Ed.2d 358 (1979). The Supreme Court has invoked the standards applicable to Eleventh Amendment immunity if violations of the Fourteenth Amendment are alleged. See Seminole Tribe of Fla. v. Florida, — U.S. -, 116 S.Ct. 1114, 134 L.Ed.2d 252 (1996). Klein has brought federal civil rights claims and state law claims" }, { "docid": "15352887", "title": "", "text": "to extend to any suit in law or equity, commenced or prosecuted against one of the United States by Citizens of another State, or by Citizens of any Foreign State. U.S. Const., amend. XI. The Eleventh Amendment embodies the principle of sovereign immunity, and thus bars a federal court from hearing claims by individuals against dependent instru-mentalities of the state, their agencies, or the officials of those agencies unless the State consents to suit, or Congress has expressly abrogated the State’s immunity. See Seminole Tribe v. Florida, 517 U.S. 44, 116 S.Ct. 1114, 134 L.Ed.2d 252 (1996); Hafer v. Melo, 502 U.S. 21, 112 S.Ct. 358, 116 L.Ed.2d 301 (1991); Pennkurst State Sch. & Hosp. v. Halderman, 465 U.S. 89, 104 S.Ct. 900, 79 L.Ed.2d 67 (1984). A state is not a “person” within the meaning of 42 U.S.C. § 1983 and therefore may not properly be named as a defendant in a § 1983 action. See Will v. Michigan Dep’t of State Police, 491 U.S. 58, 71, 109 S.Ct. 2304, 105 L.Ed.2d 45 (1989). This principle extends to state agencies and to state officers named in their official capacities. See id.; Emma C. v. Eastin, 985 F.Supp. 940, 946 (N.D.Cal.1997). As dependent instrumentalities of the state, school districts are within the purview of the Eleventh Amendment. Belanger v. Madera Unified Sch. Dist., 963 F.2d 248, 251 (9th Cir.1992). The Eleventh Amendment does not, however, bar a federal court from granting prospective injunctive relief against an officer of the state who acts outside the bounds of his authority, Cerrato v. San Francisco Cmty. Coll. Dist., 26 F.3d 968, 973 (9th Cir.1994), or against state officers sued in their individual capacities, id.; Doe v. Lawrence Livermore Nat’l Lab., 131 F.3d 836, 839 (9th Cir.1997). This is the “stripping doctrine” of Ex Parte Young, 209 U.S. 123, 28 S.Ct. 441, 52 L.Ed. 714 (1908). This doctrine applies only where the state officials are allegedly violating federal law; it does not reach suits seeking relief against state officials for violations of state law. See Pennhurst, 465 U.S. at 106, 104 S.Ct. 900. Plaintiffs’" }, { "docid": "22684521", "title": "", "text": "plaintiffs’ ADEA claims against the Commonwealth are barred by the Eleventh Amendment. B. Plaintiffs also brought suit against the Commonwealth and various of its officials, acting within the scope their official capacities, for equal protection and due process violations under 42 U.S.C. § 1983. Plaintiffs alleged that the Commonwealth’s administration of the “ai'bitrary and discriminatory” GATB posed an unconstitutional bar to employment with Allegheny Ludlum. Since the Commonwealth was not the employer here, it was obviously not in a position to reinstate the steelworkers. Accordingly, plaintiffs prayed for an equitable award of “front pay” as their remedy. The district court correctly held that plaintiffs’ § 1983 “front pay” claims were barred by the Eleventh Amendment. The Supreme Court has held that States are not “persons” within the meaning of § 1983 and, therefore, cannot be among those held liable for violations of the civil rights statute. Will v. Michigan Dept. of State Police, 491 U.S. 58, 66, 109 S.Ct. 2304, 2309, 105 L.Ed.2d 45 (1989) (“Section 1983 provides a federal forum to remedy many deprivations of civil liberties, but it does not provide a federal forum for litigants who seek a remedy against a State for alleged deprivations of civil liberties.”). Since Congress expressed no intention of disturbing the states’ sovereign immunity in enacting § 1983, these suits, when brought against a state, are barred by the Eleventh Amendment. Id. at 58, 109 S.Ct. at 2310; Quern v. Jordan, 440 U.S. 332, 339-346, 99 S.Ct. 1139, 1144-1148, 59 L.Ed.2d 358 (1979). Accordingly, plaintiffs’ claims for “front pay” must fail. The analysis under the Eleventh Amendment in a § 1983 suit is less straightforward, however, when a state official (as opposed to the state itself) is named as defendant. Papasan v. Allain, 478 U.S. 265, 276, 106 S.Ct. 2932, 2939, 92 L.Ed.2d 209 (1986). In Witt, the Supreme Court held that state officials acting in them official capacities are not “persons” under § 1983. 491 U.S. at 71, 109 S.Ct. at 2312 (“A suit against a state official in his or her official capacity ... is no different from a suit" }, { "docid": "19897149", "title": "", "text": "42 U.S.C. § 1983.” AlohaCare never raised an argument under the Supremacy Clause before the district court, and consistently pressed its arguments under the framework of § 1983 cases. We refuse to reverse the district court for failing to foresee what AlohaCare would argue on appeal. B AlohaCare also argues that the district court erroneously dismissed its § 1983 claims. Specifically, AlohaCare asserts that the provisions of 42 U.S.C. § 1396b(m) confer an unambiguous federal right to contract eligibility on FQHCs and FQHC-controlled entities. We disagree. 1 In Maine v. Thiboutot, 448 U.S. 1, 4-5, 100 S.Ct. 2502, 65 L.Ed.2d 555 (1980), the Supreme Court held that § 1983 actions may be brought against States to enforce rights created by federal statute as well as the Constitution. However, “the remedy announced in Thiboutot [is] to be applied sparingly and only to statutes in which Congress speaks with a clear voice and unambiguously creates a right secured by the laws of the United States.” Sanchez v. Johnson, 416 F.3d 1051, 1056 (9th Cir.2005) (internal quotation marks and alterations omitted). In Blessing, the Supreme Court established a three-pronged test for determining whether a federal statutory provision creates a federal right: (1) “Congress must have intended that the provision in question benefit the plaintiff,” (2) “the plaintiff must demonstrate that the right assertedly protected by the statute is not so ‘vague and amorphous’ that its enforcement would strain judicial competence,” and (3) “the statute must unambiguously impose a binding obligation on the States.” 520 U.S. at 340-41,117 S.Ct. 1353 (internal citations omitted). Following Blessing, the Court “rejected] the notion that [its] cases permit anything short of an unambiguously conferred right to support a cause of action brought under § 1983.” Gonzaga Univ. v. Doe, 536 U.S. 273, 283, 122 S.Ct. 2268, 153 L.Ed.2d 309 (2002). The Court made it plain that it was not sufficient for § 1983 to assert “interests” or “benefits” under a statute; it is only “rights ... that may be enforced under the authority of that section.” Id. To create a federal right, a statute’s “text must be phrased" }, { "docid": "6056787", "title": "", "text": "without prejudice does not leave Futemick without an adequate remedy if promises made in the settlement agreement are not kept by the Township. At oral argument, counsel for Futemick admitted that an action for breach of contract has been filed in Michigan state court. Additionally, because the dismissal was without prejudice, Futemick remains free to renew his action in federal court. Ill Futernick’s next allegation of error is essentially correct. The district court should not have dismissed the claims for injunctive relief against the directors of MDNR and MDPH on grounds of Eleventh Amendment immunity. Eleventh Amendment immunity does not bar injunctive relief against state officials for violations of federal law. Ex Parte Young, 209 U.S. 123, 28 S.Ct. 441, 52 L.Ed. 714 (1908); Thomson v. Harmony, 65 F.3d 1314, 1320 (6th Cir.1995). The district court held that Young did not apply because Futemick sued the directors in their official capacity, and sought relief from the department, rather than the directors themselves. That holding appears to be a confused extension of the rule that the Eleventh Amendment bars a suit against a state officer if that suit would lead to monetary relief against the state treasury (by some means other than indemnification). The court’s confusion probably stems from Pennhurst State Sch. and Hosp. v. Halderman, 465 U.S. 89, 104 S.Ct. 900, 79 L.Ed.2d 67 (1983): The Eleventh Amendment bars a suit against state officials when the state is the ‘real, substantial party in interest.’ ... regardless of whether [the plaintiff] seeks damages or injunctive relief. Id. at 101-02,104 S.Ct. at 908-09. It is error to read the language about the “party in interest” as an extension of Eleventh Amendment immunity to actions seeking injunctive relief against a state officer who is violating federal law. Thomson, 65 F.3d at 1320. To the extent the text of Pennhurst supports such a reading, it is overruled by Will v. Michigan Dept. of State Police, 491 U.S. 58, 109 S.Ct. 2304, 105 L.Ed.2d 45 (1989). Will reaffirmed that state officers who are violating a federal law may always be sued for purely injunctive relief" }, { "docid": "20324475", "title": "", "text": "Congress did not abrogate the states’ Eleventh Amendment immunity with respect to §§ 1981 and 1983 claims); Yowman v. Jefferson Cnty. Cmty. Supervision & Corn. Dept., 370 F.Supp.2d 568, 588 (E.D.Tex.2005) (holding that the Eleventh Amendment bars §§ 1981 and 1981a claims). McNally does not oppose dismissal of the §§ 1981, 1981a, 1983 claims for money damages based on the Eleventh Amendment, arguing instead that the claims should not be dismissed because she is seeking prospective injunctive relief. In Ex parte Young, 209 U.S. 123, 28 S.Ct. 441, 52 L.Ed. 714 (1908), the Supreme Court recognized that a “suit challenging the constitutionality of a state official’s action is not one against the State.” Pennhurst State Sch. & Hosp. v. Halderman, 465 U.S. 89, 103, 104 S.Ct. 900, 79 L.Ed.2d 67 (1983) (citing Young). Under the Ex Parte Young doctrine, the federal court may enjoin a state official’s future conduct when a plaintiff brings suit alleging a violation of federal law, Edelman v. Jordan, 415 U.S. 651, 94 S.Ct. 1347, 39 L.Ed.2d 662 (1974), but not when a plaintiff alleges a violation of state law. Pennhurst, 465 U.S. at 106, 104 S.Ct. 900 (stating that “when a plaintiff alleges that a state official has violated state law,” then “the entire basis for the doctrine of Young ... disappears”); see also Will, 491 U.S. at 71 n. 10, 109 S.Ct. 2304 (“a state official in his or her official capacity, when sued for injunctive relief, would be a person under § 1983 because ‘official-capacity actions for prospective relief are not treated as actions against the state’ ”) (quoting Kentucky v. Graham, 473 U.S. 159, 167 n. 14, 105 S.Ct. 3099, 87 L.Ed.2d 114 (1985)); Los Angeles County Bar Ass’n v. Eu, 979 F.2d 697, 704 (9th Cir.1992) (noting that the Eleventh Amendment is not a bar to “actions seeking only prospective declaratory or injunctive relief against state officers in their official capacities”). The Ex Parte Young doctrine is inapplicable when a claim is asserted against a state or a state agency, as opposed to against a state official. See In Re Pegasus" }, { "docid": "21670894", "title": "", "text": "for summary judgment require the resolution of overlapping issues, they will be addressed contemporaneously. B. MCCA’s Standing to Seek Redress Under Section 1983 The Supreme Court has clearly stated that “[i]n order to seek redress through § 1983, ... a plaintiff must assert a violation of a federal right, not merely a violation of federal law.” Blessing v. Freestone, 520 U.S. 329, 340, 117 S.Ct. 1353, 137 L.Ed.2d 569 (1997) (citing Golden State Transit Corp. v. City of Los Angeles, 493 U.S. 103, 106, 110 S.Ct. 444, 107 L.Ed.2d 420 (1989)). This principle, while easily stated, is not easily applied. To put the issue in perspective, the Court begins with a brief history of the Supreme Court’s jurisprudence in the area. In Maine v. Thiboutot, 448 U.S. 1, 100 S.Ct. 2502, 65 L.Ed.2d 555 (1980), the Supreme Court recognized “for the first time that § 1983 actions may be brought against state actors to enforce rights created by federal statutes as well as by' the Constitution.” Gonzaga University v. Doe, 536 U.S. 273, 122 S.Ct. 2268, 2273, 153 L.Ed.2d 309 (2002). The issue in Maine was whether the plaintiffs could recover payments withheld by a state agency in violation of the Social Security Act. Maine, 448 U.S. at 4, 100 S.Ct. 2502. One year later, in Pennhurst State School and Hospital v. Halderman, 451 U.S. 1, 101 S.Ct. 1531, 67 L.Ed.2d 694 (1981), the Supreme Court “rejected a claim that the Developmentally Disabled Assistance and Bill of Rights Act of 1975 conferred enforceable rights ....” Gonzaga, 122 S.Ct. at 2273. The Court in Pennhurst reasoned as follows: In legislation enacted pursuant to the spending power, the typical remedy for state noncompliance with federally imposed conditions is not a private cause of action for noncompliance but rather an action by the Federal Government to terminate funds to the State. 451 U.S. at 28, 101 S.Ct. 1531. The Supreme Court “made clear that unless Congress ‘speakfs] with a clear voice,’ and manifests an ‘unambiguous’ intent to confer individual rights, federal funding provisions provide no basis for private enforcement by § 1983.” Gonzaga," }, { "docid": "14055222", "title": "", "text": "claims, however, they cannot recover for the lack of success of the K9 program. A. 11th Amendment Immunity First, the state of Nevada has asserted its Eleventh Amendment immunity. In most cases, a state may not be sued in federal court unless it consents to be sued. U.S. Const. Amend. XI. This immunity applies to state agencies as well as state officials sued in their official capacity. Pennhurst State Sch. & Hosp. v. Holderman, 465 U.S. 89, 100-01, 104 S.Ct. 900, 79 L.Ed.2d 67 (1984). Furthermore, neither a state nor its officials acting in their official capacities are “persons” under 42 U.S.C. § 1983, and therefore section 1983 does not provide a cause of action against these entities. Will v. Michigan State Police, 491 U.S. 58, 71, 109 S.Ct. 2304, 105 L.Ed.2d 45 (1989). This last proposition is subject to one exception: where the state official is sued for prospective injunctive relief, the action is properly brought under section 1983. Wolfe v. Strankman, 392 F.3d 358, 365 (9th Cir.2004). Here, the state of Nevada and its agency the NHP are immune from suit. Nev. Rev. Stat. (“NRS”) § 41.031 (providing that Nevada has not waived its Eleventh Amendment immunity). Furthermore, except for Perry, the complaint does not specify the capacity in which the defendants are sued. Therefore, the court presumes the defendants are sued in their personal capacities. See Romano v. Bible, 169 F.3d 1182, 1186 (9th Cir.1999). This presumption comports with the remedies sought (damages) and the defenses raised (qualified immunity). See Biggs v. Meadows, 66 F.3d 56, 59-60 (4th Cir.1995) (looking to the “substance of the plaintiffs claim, the relief sought, and the course of proceedings to determine the nature of a section 1983 suit when plaintiff fails to allege capacity”). Finally, Perry is subject to suit in his official capacity because the complaint seeks injunctive relief in the form of reinstatement. See Wolfe, 392 F.3d at 365. B. Claims Stemming from Mismanagement of the K9 Program Plaintiffs’ claims for violations of the Fourth Amendment, failure to train under section 1983, and civil RICO under 18 U.S.C. §" }, { "docid": "11868484", "title": "", "text": "of an ongoing investigation for fraud or abuse, as California Welfare and Institutions Code section 14043.36(a) permits. Thus, we agree with the district court that Guzman is unlikely to prevail on the merits of his claim that such statute is preempted by federal law. rv Even if California Welfare and Institutions Code section 14043.36(a) is not preempted, Guzman argues that federal Medicaid law entitles him to a hearing before his temporary suspension from the Medi-Cal program is imposed. Guzman seeks to enforce such purported right through 42 U.S.C. § 1983. Section 1983 creates a cause of action against any person who, under color of state law, deprives “any citizen of the United States ... of any rights, privileges, or immunities secured by the Constitution and laws” of the United States. Id. Although this statute enables plaintiffs to enforce federal statutory rights, Maine v. Thiboutot, 448 U.S. 1, 4-5, 100 S.Ct. 2502, 65 L.Ed.2d 555 (1980), it “does not provide an avenue for relief every time a state actor violates a federal law,” City of Rancho Palos Verdes v. Abrams, 544 U.S. 113, 119, 125 S.Ct. 1453, 161 L.Ed.2d 316 (2005). Thus, to demonstrate that he is entitled to a pre-suspension hearing under federal Medicaid law, Guzman must establish that a federal statute unambiguously entitles him to such a right. After all, “[t]he Supreme Court has held that only violations of rights, not laws, give rise to § 1983 actions.” Save Our Valley v. Sound Transit, 335 F.3d 932, 936 (9th Cir.2003) (citing Gonzaga Univ. v. Doe, 536 U.S. 273, 285, 122 S.Ct. 2268, 153 L.Ed.2d 309 (2002); Blessing v. Freestone, 520 U.S. 329, 340, 117 S.Ct. 1353, 137 L.Ed.2d 569 (1997)). A Guzman contends that he is afforded the right to a presuspension hearing by several Medicaid statutes and regulations. First, he points to the Social Security Act, which requires the Secretary of HHS to afford “reasonable notice and opportunity for a hearing” to any provider excluded from any federal health care program. 42 U.S.C. § 1320a-7(f)(l). Yet by its plain terms, such provision applies only to exclusions imposed by" }, { "docid": "1560156", "title": "", "text": "S.Ct. at 911) (internal quotation marks omitted). Nor is Ex Parte Young, which permits claims for injunctive relief only against a State, applicable to state law claims. Holmes v. California Army Nat’l Guard, 920 F.Supp. 1510, 1520 (N.D.Cal.1996) (citation omitted), rev’d on other grounds, 124 F.3d 1126 (9th Cir.1997). Accordingly, the Court DISMISSES WITH PREJUDICE Plaintiffs state law claims against SFUSD and the individual defendants in both capacities. III. INDIVIDUAL DEFENDANTS A OFFICIAL-CAPACITY DEFENDANTS MAY ASSERT ELEVENTH AMENDMENT IMMUNITY Defendants also seek to dismiss Plaintiffs claims for federal civil rights violations against the individual defendants, on the ground that the Eleventh Amendment immunizes officials of a State agency who act within the scope of their employment. While the Eleventh Amendment provides States and their instrumentalities with immunity from suit in federal court when the State has not consented to suit and Congress has not abrogated the States’ sovereign immunity, this immunity is not absolute. Beginning with Ex Parte Young in 1908, courts have recognized an exception where a suit for prospective relief is brought against an official of the State, in an official capacity. Ex Parte Young, 209 U.S. 123, 28 S.Ct. 441, 52 L.Ed. 714 (1908); see, e.g., Pennhurst State Sch. & Hosp. v. Halderman, 465 U.S. 89, 102-03, 104 S.Ct. 900, 909, 79 L.Ed.2d 67 (1984) (citing Edelman v. Jordan, 415 U.S. 651, 666-67, 94 S.Ct. 1347, 1357-58, 39 L.Ed.2d 662 (1974)); Bair v. Krug, 853 F.2d 672, 675 (9th Cir.1988) (“[T]he eleventh amendment bars actions against state officers sued in their official capacities for past alleged misconduct involving a complainant’s federally protected rights, where the nature of the relief sought is retroactive, i.e., money damages, rather than prospective, e.g., an injunction”). No other relief is available against the State. Discussing a section 1983 claim, the Court noted, “[A] federal court’s remedial power, consistent with the Eleventh Amendment, is necessarily limited to prospective injunctive relief ... and may not include a retroactive award which requires the payment of funds from the state treasury.” Quern v. Jordan, 440 U.S. 332, 338, 99 S.Ct. 1139, 1143-44, 59 L.Ed.2d 358 (1979)" }, { "docid": "1560143", "title": "", "text": "who, under color of any statute, ordinance, regulation, custom or usage, of any State or Territory or the District of Columbia, subjects, or causes to be subjected, any citizen of the United States or other person within the jurisdiction thereof to the deprivation of any rights, privileges, or immunities secured by the Constitution and laws, shall be liable to the party injured in an action at law, suit in equity, or other proper proceeding for redress. 42 U.S.C. § 1983. Eleventh Amendment immunity has not been abrogated with respect to section 1983 claims. Quern v. Jordan, 440 U.S. 332, 341-42, 99 S.Ct. 1139, 1145-46, 59 L.Ed.2d 358, (1979); Alabama v. Pugh, 438 U.S. 781-82, 98 S.Ct. 3057-58, 57 L.Ed.2d 1114 (1978). In addition, by its terms, section 1983 applies to “persons” acting under color of law’. In Monroe v. Pape, the Supreme Court held that section 1983 was not applicable to government entities. 365 U.S. 167, 190-92, 81 S.Ct. 473, 485-87, 5 L.Ed.2d 492 (1961). This holding was reiterated in Will v. Michigan Dep’t of State Police, 491 U.S. 58, 71, 109 S.Ct. 2304, 2312, 105 L.Ed.2d 45 (1989), in which the Court held, “[Njeither a State nor its officials acting in their official capacities are ‘persons’ under § 1983.” The Will Court further noted, Section 1983 provides a federal forum to remedy many deprivations of civil liberties, but it does not provide a federal forum for litigants who seek a remedy against a State for alleged deprivations of civil liberties. The Eleventh Amendment bars such suits unless the State has waived its immunity, or unless Congress has exercised its undoubted power under § 5 of the Fourteenth Amendment to override that immunity. 491 U.S. at 66, 109 S.Ct. at 2309-10 (citation omitted). It is clear that SFUSD may not be sued under 42 U.S.C. section 1983. Nor is SFUSD a “municipality” falling under the Monell exception. See Monell v. Dep’t of Social Services, 436 U.S. 658, 98 S.Ct. 2018, 56 L.Ed.2d 611 (1978). The Ninth Circuit has specifically held that under California law, school districts are considered state agencies" }, { "docid": "16363168", "title": "", "text": "against a state on the basis of state law. 465 U.S. at 105. For purposes of applying Eleventh Amendment immunity to plaintiffs state law claims, it is irrelevant whether Klein seeks prospective or retroactive relief. Id. The court concludes that the Eleventh Amendment bars Klein’s state law claims against the Medical Center and the Board. Those claims are dismissed. Although these defendants may not be entitled to Eleventh Amendment immunity in connection with Klein’s section 1983 claims for injunctive relief, the claims fail for a different reason. To maintain an action under section 1983, Klein must establish that a. “person” acting under color of state law deprived him of a right, privilege, or immunity secured by the Constitution. 42 U.S.C. § 1983. It is well established that state agencies are not “persons” amenable to suit within the meaning of § 1983. Will v. Michigan Dep’t of State Police, 491 U.S. 58, 64, 109 S.Ct. 2304, 2308-09, 105 L.Ed.2d 45 (1989); Hernandez, 1995 WL 490289, at *3. The court concludes that the Medical Center and the Board are entitled to dismissal of plaintiffs federal claims brought under section 1983. Plaintiffs civil rights claims against the Medical Center and the Board are dismissed. 2. Individual Defendants Sued in Official Capacities The individual defendants contend that they are entitled to Eleventh Amendment immunity on Klein’s claims for monetary and injunctive relief brought against them in their official capacities. In Pennhurst, the Supreme Court held that the Eleventh Amendment jurisdictional bar applies to suits seeking monetary damages against state officials. 465 U.S. at 100, 104 S.Ct. at 907-08 (relief sought against state official is in fact relief sought against the state); see also Gray, 715 F.Supp. at 1043; Billings, 557 F.Supp. at 1350. This court also has applied the proscription against suing state employees in their official capacities in federal court for monetary relief to claims arising under state law. Johnson, 779 F.Supp. at 156. The court concludes that the Eleventh Amendment precludes Klein’s claims seeking monetary relief against the individual defendants in their official capacities. Klein also seeks prospective injunctive relief against the" }, { "docid": "2746339", "title": "", "text": "399, 85 L.Ed. 581 (1941). Consequently, a state cannot authorize its officials to act in violation of federal statutory law. Here, the state defendants contend that the Ex parte Young exception to eleventh amendment immunity does not embrace claims for relief based on federal statutory rights. Neither Pennhurst II nor the policy at the root of Ex parte Young demands such a restrictive interpretation. The eleventh amendment does not bar the appellants’ injunctive action against the individual state officials named as defendants here. We must, however, reach a different result with respect to the California Department of Food and Agriculture. A suit brought by a citizen directly against a state or one of its agencies falls within the general proscription of the eleventh amendment. Pennhurst II, 104 S.Ct. at 908. See also, Atascadero State Hospital v. Scanlon, — U.S. -, 105 S.Ct. 3142, 87 L.Ed.2d 171 (1985). Absent express waiver by the state of its sovereign immunity in federal court, consent to suit in unequivocal terms or clear abrogation of its eleventh amendment immunity by Congress, the action against a state agency for any type of relief is barred by the eleventh amendment. Atascadero. None of these exceptions is applicable here. The district court’s order, insofar as it directly applies to the CDFA, is therefore vacated and the cause is remanded to the district court for entry of an order dismissing this particular defendant for lack of jurisdiction. III. The appellants are private citizens seeking to enforce the provisions of FIFRA. This court has held that FIFRA does not authorize explicitly or implicitly a private cause of action to enforce the Act. Fiedler v. Clark, 714 F.2d 77 (9th Cir.1983) (per curiam). Despite this, the appellants argue they have a cause of action under FIFRA through 42 U.S.C. § 1983, which provides a federal cause of action for damages or equitable relief against state officials who deprive individuals of their federal rights. Section 1983 is available to redress the deprivation of federal statutory rights. Maine v. Thiboutot, 448 U.S. 1, 100 S.Ct. 2502, 65 L.Ed.2d 555 (1980). An action to" }, { "docid": "6056788", "title": "", "text": "Eleventh Amendment bars a suit against a state officer if that suit would lead to monetary relief against the state treasury (by some means other than indemnification). The court’s confusion probably stems from Pennhurst State Sch. and Hosp. v. Halderman, 465 U.S. 89, 104 S.Ct. 900, 79 L.Ed.2d 67 (1983): The Eleventh Amendment bars a suit against state officials when the state is the ‘real, substantial party in interest.’ ... regardless of whether [the plaintiff] seeks damages or injunctive relief. Id. at 101-02,104 S.Ct. at 908-09. It is error to read the language about the “party in interest” as an extension of Eleventh Amendment immunity to actions seeking injunctive relief against a state officer who is violating federal law. Thomson, 65 F.3d at 1320. To the extent the text of Pennhurst supports such a reading, it is overruled by Will v. Michigan Dept. of State Police, 491 U.S. 58, 109 S.Ct. 2304, 105 L.Ed.2d 45 (1989). Will reaffirmed that state officers who are violating a federal law may always be sued for purely injunctive relief — “capacity” and “party in interest” are irrelevant. Id. at 71 n. 10, 109 S.Ct. at 2312 n. 10. Although the state agency defendants are not entitled to Eleventh Amendment immunity, we still affirm the dismissal of the case against these defendants. Futemick alleges (only) that these defendants violated his equal protection rights by selectively enforcing facially valid state environmental regulations. We affirm the dismissal of this case against these defendants for the same reason that we affirm the dismissal of the case against Jon Caterino in his personal capacity, as discussed immediately below: Futemick fails to state a claim upon which relief can be granted. IV The heart of Futerniek’s case is the claim that state officials, especially Jon Caterino of MDNR, violated his constitutional right to equal protection of the law by selectively enforcing Michigan state environmental regulations. The district court dismissed the claim for injunctive relief against Caterino for failure to state a claim. We review de novo to determine whether the complaint alleges “the material elements to sustain a recovery under" }, { "docid": "6185585", "title": "", "text": "491 U.S. 58, 109 S.Ct. 2304, 105 L.Ed.2d 45 (1989), the Supreme Court analyzed the interplay between § 1983 and the Eleventh Amendment of the Constitution. Because the Eleventh Amendment provides an absolute immunity for the states against all suits, the “person” referred to in § 1983 cannot include a state or any divisions of the state. Section 1983 provides a federal forum to remedy many deprivations of civil liberties, but it does not provide a federal forum for litigants who seek a remedy against a State for alleged deprivations of civil liberties. The Eleventh Amendment bars such suits unless the State has waived its immunity [cites omitted] or unless Congress has exercised its undoubted power under § 5 of the Fourteenth Amendment to override that immunity. When § 1983 was passed as part of the Civil Rights Act of 1871, Congress did not interject any language in the Act which would specifically override the immunity of the states provided by the Eleventh Amendment; therefore, there is no federal forum for civil rights claims against the various states. The Eleventh Amendment immunity granted .to the states “applies only to States or governmental entities that are considered ‘arms of the State’ for Eleventh Amendment purposes,” but the court found that state agencies, divisions, departments and officials are entitled to the Eleventh Amendment immunity. Will, supra at 70, 109 S.Ct. at 2312. In reaching this conclusion, the court held that a suit against state officials acting in their official capacities is actually against the office itself and, therefore, against the state. State officials may only be sued in their individual capacities if the plaintiffs are seeking monetary damages. The single exception is where a plaintiff is seeking injunctive relief. In that situation, the officials may be sued to enjoin an action. The defendants have also stated that they are not liable under the doctrine of respondeat superior for any alleged infractions of plaintiffs’ constitutional rights. Plaintiffs have failed to establish that they had any constitutional rights deprived by these defendants. However, under the doctrine of respondeat superior, an employer or supervisor is" }, { "docid": "21890887", "title": "", "text": "defendant CUNY. For purposes of this analysis, § 1981 claim is treated in the same manner as a § 1983 claim. The complaint is fashioned as against the Music Department defendants and CUNY. It is, therefore, a suit against CUNY as an institution. States do not count as “persons” under 42 U.S.C. § 1983, and thus their Eleventh Amendment immunity bars suits for damages under that statute. Will v. Michigan Dept. of State Police, 491 U.S. 58, 109 S.Ct. 2304, 105 L.Ed.2d 45 (1989). “Section 1983 provides a federal forum to remedy many deprivations of civil liberties, but it does not provide a federal forum for litigants who seek a remedy against a State for alleged deprivations of civil liberties. The Eleventh Amendment bars such suits unless the State has waived its immunity.” Will, 491 U.S. at 66, 109 S.Ct. at 2309. Any hypothetical recovery against defendant CUNY in this lawsuit would be paid from the New York State treasury. N.Y. Education Law § 6205(1) reads that, “[t]he state shall save harmless and indemnify members of the board of trustees [of CUNY] ... against any claim, demand, suit or judgment ...” This section has been the basis for which courts in this Circuit have ruled that CUNY enjoys Eleventh Amendment immunity from both §§ 1981 and 1983 damages. Scelsa v. City University of New York, 806 F.Supp. 1126, 1137 (S.D.N.Y.1992) (Motley, J.); Torres v. City University of New York, 1991 WL 143359 at *3-4 (S.D.N.Y.1991); Accord Davis v. Halpern, 768 F.Supp. 968, 983-84 (E.D.N.Y.1991). Consequently, the 42 U.S.C. § 1981 and § 1983 damages claims against CUNY fail because they are barred by the Eleventh Amendment. However, a plaintiff invoking §§ 1981 and 1983 can obtain damages and appropriate prospective injunctive relief, as well as attorneys fees as part of costs, when the suit is against the appropriate official named in his or her official capacity. Scelsa, 806 F.Supp. at 1138. Plaintiff is also not barred by the Eleventh Amendment from the possibility of equitable relief against CUNY. VII. Constitutional Deprivation Because there are legitimate issues of fact concerning whether" }, { "docid": "6185584", "title": "", "text": "providing more items such as educational materials, religious treatises, incense and oil, práyer rugs, etc.', than they currently provide for these inmates. As indicated in the preceding discussion, however, furnishing this type of aid to a specific religion would be in violation of the establishment clause of the First Amendment. That amendment is satisfied if the defendants, including SCDC, simply raise no barriers to the use of these items by the inmates. E. Defenses Asserted by Defendants Defendants have asserted a number of defenses to the allegations of plaintiffs’ complaint, including Eleventh Amendment immunity, qualified immunity and that they are not liable under the doctrine of respondeat superior. All of the defendants have been sued in both their official and individual capacities. As they contend, they are all absolutely immune from a suit for monetary damages in their official capacities. The clear language of § 1983 requires that a “person” may be sued by another where a deprivation of constitutional rights can be shown. In the case of Will v. Michigan Department of State Police, 491 U.S. 58, 109 S.Ct. 2304, 105 L.Ed.2d 45 (1989), the Supreme Court analyzed the interplay between § 1983 and the Eleventh Amendment of the Constitution. Because the Eleventh Amendment provides an absolute immunity for the states against all suits, the “person” referred to in § 1983 cannot include a state or any divisions of the state. Section 1983 provides a federal forum to remedy many deprivations of civil liberties, but it does not provide a federal forum for litigants who seek a remedy against a State for alleged deprivations of civil liberties. The Eleventh Amendment bars such suits unless the State has waived its immunity [cites omitted] or unless Congress has exercised its undoubted power under § 5 of the Fourteenth Amendment to override that immunity. When § 1983 was passed as part of the Civil Rights Act of 1871, Congress did not interject any language in the Act which would specifically override the immunity of the states provided by the Eleventh Amendment; therefore, there is no federal forum for civil rights claims against" } ]

[ { "docid": "17412757", "title": "", "text": "to abstention, lack of causation, and absolute privilege. Accordingly, we reverse the judgment of the district court and remand for further proceedings. I Background Information. Understanding this case requires a basic familiarity with the cast of characters involved therein. The two main companies owned by Petters were Petters Group Worldwide, LLC (PGW) and Petters Company, Inc. (PCI). “PCI was the venture capital arm of the Petters enterprises that utilized single purpose entities to obtain billions of dollars of funding, purportedly to acquire merchandise for sale to wholesalers and retailers nationwide. PGW held investments in numerous companies, and its principal asset was its stock in Polaroid.” Ritchie Special Credit Invs., Ltd. v. U.S. Trustee, 620 F.3d 847, 850 (8th Cir.2010). Polaroid Corporation, whose assets were coveted by Ritchie, was indirectly a wholly-owned subsidiary of PGW. The two defendants named in the present case are Mary Jeffries, the President of PGW, the Chief Operating Officer of PGW and PCI, and the Chief Executive Officer of Polaroid, and Camille Chee-Awai, the Chief Executive Officer of Petters Capital, LLC, PGW’s subsidiary. According to Ritchie, Jeffries and Chee-Awai conspired with Petters, “the principal conspirator,” Compl. ¶ 1, to induce Ritchie to loan PGW well over $100 million and then deprive it of its security interest in Polaroid. In making its decision to provide financing to PGW in February 2008 and then to extend maturity dates on the notes in May through September 2008, Ritchie allegedly relied on Jeffries’s and Chee-Awai’s representations as to the existence, value, and exclusivity of its security interest in Polaroid and the legitimate nature of Petters’s businesses in general. Interpreting Illinois law to allow for creation of a valid security interest on the basis of oral agreements alone, Ritchie relies on these representations to assert a security interest in Polaroid assets dating back to Ritchie’s first loan to PGW on February 1, 2008. Yet, Ritchie apparently did not believe in the power of a written word. Rather than demanding from Petters a full-fledged written commitment regarding the security interest in Polaroid from the beginning, Ritchie extended its first $31 million loan" } ]

[ { "docid": "18969015", "title": "", "text": "to consider the allocation and the settlement agreement as a single settlement. See Lurie v. Blackwell (In re Popkin & Stern), 196 F.3d 933, 938 (8th Cir.1999) (“Several instruments constitute a single contract when they pertain to the same transaction and when the parties intend for them to be construed as such.”). Ritchie continues to maintain the district court’s reasoning was flawed because even though Petters transferred some funds, the amount received by VICIS from PCI totaled over $15 million, which is more than double the payment being made by VICIS, meaning PCI could properly receive the entire $7.5 million from .VICIS. Ritchie asserts the district court erred by assuming a portion of the funds paid by VICIS needed to be transferred to the receivership based on Petters’s transfer, of funds. Ritchie contends the receivership released any claims it had to the VICIS funds by executing the settlement agreement. ' Ritchie’s argument again overlooks that the settlement agreement was subject to approval by the bankruptcy court and the district court prior to it being enforceable. Further, as previously explained, the bankruptcy court did not err by considering the allocation as a part of the overall settlement between Kelley and VICIS, and a bankruptcy court may approve a settlement even though it may not be “the best result obtainable.” Tri-State Fin., LLC, 525 F.3d at 654 (internal quotation marks omitted). Next, Ritchie argues the allocation is not in the best interests of PCI’s creditors because Kelley was irredeemably conflicted by serving as both the trustee and the receiver. Ritchie alleges Kelley negotiated against himself by serving in dual capacities, representing adverse interests, and therefore called the fairness of the arrangement into question. In support of its argument, Ritchie cites York International Building, Inc. v. Chaney (In re York International Building, Inc.), 527 F.2d 1061, 1076 (9th Cir.1975), In re Las Colinas, Inc., 426 F.2d 1005, 1014 (1st Cir.1970), and Access Cardiosystems, Inc. v. Fincke (In re Access Cardiosystems, Inc.), 340 B.R. 127, 148 (Bankr.D.Mass. 2006). We disagree. In Ritchie Special Credit Investments, Ltd., 620 F.3d at 853-54, we considered whether Kelley" }, { "docid": "7136797", "title": "", "text": "the SPEs as conduits. With the PCI-related Debtors’ structure and operation as much of a piece as they were, and all creditors’ inputs having served to enable and sustain the operation of the scheme through that one melded edifice, there is an argument that standing in litigation is properly derived through the breadth of a post-consolidation, aggregated debt structure. That can be addressed fully on its merits, where properly raised. ORDER On the findings of fact and conclusions of law just set forth in memorandum form, IT IS HEREBY ORDERED: 1. The Trustee’s motion is granted. 2. The cases and bankruptcy estates of Debtors: Petters Company, Inc. [BEAT OS-45257] PC Funding, LLC [BKY 08-45326] Thousand Lakes, LLC [BKY OS-45327] SPF Funding, LLC [BKY 08-45328] PL Ltd., Inc. [BKY 08-45329] Edge One LLC [BKY 08-45330] MGC Finance, Inc. [BKY 08-45331] PAC Funding, LLC [BKY 08-45371] Palm Beach Finance Holdings, Inc. [BKY 08-45392] are consolidated, for all purposes substantive and administrative. 3. The relief accorded under Term 2 shall be retroactively effective, as of October 11, 2008. 4. All rights under applicable law to avoid transfers of the property of any of the Debtors identified in Term 2 to parties other than any of the other Debtors so identified, which rights of avoidance were originally vested in the bankruptcy estates of all such transferor-Debtors by operation of the Bankruptcy Code, are preserved for the Trustee’s exercise for the benefit of the single bankruptcy estate that results from the consolidation ordered under Term 2. . The trustee then appointed was Douglas A. Kelley. Kelley had also served as receiver over Tom Petters and the others who were subject to the district court's civil proceedings. This court’s approval of his appointment as trustee was ultimately affirmed by the Eighth Circuit. Ritchie Special Credit Invs., Ltd. v. U.S. Trustee, 620 F.3d 847 (8th Cir.2010). . The excepted Debtor is Petters Group Worldwide, LLC (\"PGW”). PGW served as an umbrella holding company for Tom Pet-ters's equity interests in certain businesses, among them the Polaroid Corporation and the Fingerhut Companies. Any further reference to \"the PCI-related debtor(s)”" }, { "docid": "18969008", "title": "", "text": "After Petters’s scheme ended in September 2008, a receivership was created for Petters; PCI; Petters Group Worldwide, LLC (PGW); and other related entities. Kelley was appointed as the receiver and thereafter petitioned for relief under Chapter 11 of the United States Bankruptcy Code on behalf of PCI and PGW in accordance with the authority granted to him pursuant to the receivership order. The bankruptcy court appointed Kelley as the Chapter 11 trustee for PCI and PGW in February 2009. Due to the extent and impact of the fallout from Petters’s scheme, the United States, Kelley in his positions as the trustee and the- receiver, and the bankruptcy trustee for Polaroid Corporation, one of Petters’s wholly-owned companies, entered into a coordination agreement “to maximize recovery to victims and creditors and' minimize receivership and bankruptcy expenses .... ” The coordination agreement recognized there is a “significant overlap of identity” between the victims of the fraud and the creditors of the bankruptcy estates and “competing litigation would result in the overall diminishment of the recovery for victims and creditors alike and undue delay in the distribution of assets!.]” On October 10, 2010, Kelley, as the trustee, commenced an adversary proceeding against Ritchie, VICIS, and other defendants, seeking to recover alleged fraudulent and preferential transfers under bankruptcy and state law. VICIS and Ritchie opposed the complaint. Kelley, as the receiver, also alleged the transfer by Petters was fraudulent and therefore recoverable, but he had yet to commence an action on this particular claim. Conversely, VICIS held a claim against PCI’s bankruptcy estate to recover the amount which remained outstanding on the promissory notes. After the filing of the adversary proceeding, Kelley met with VICIS to discuss a resolution of the claims. Kelley and VICIS, along with representation for the ■ unsecured creditors’s committee appointed in PCI’s bankruptcy case, mediated the dispute and reached a settlement. Pursuant to the settlement agreement, VICIS paid $7.5 million to Kelley in return for a global release of all claims held by and against it by either the receivership or the bankruptcy estate. The settlement agreement was contingent on" }, { "docid": "18969010", "title": "", "text": "approval by both the district court overseeing the receivership and the bankruptcy court. Kelley filed a verified motion to approve the settlement agreement with the bankruptcy court on February 6, 2014. The motion indicated the settlement agreement, among other things, resolved the disputes between Kelley, as the trustee and the receiver, and VICIS. The motion further included an allocation of the $7.5 million received from VICIS. According to Kelley, because Petters’s payment to VICIS constituted 15% of the overall amount received by VICIS and the bankruptcy estate did not have a claim to these funds, Kelley intended to allocate 15% of the funds received from VICIS to the receivership. Kelley indicated this allocation was part of the global resolution with VI-CIS. The unsecured creditors’s committee supported the settlement agreement and the allocation, but Ritchie, although supporting the settlement agreement, did not support the allocation and filed an objection. The bankruptcy court held a hearing on the motion and heard argument from Kelley, VICIS, the unsecured creditors’s committee, and Ritchie. At the conclusion of the hearing, the bankruptcy court overruled Ritchie’s objection and approved the settlement agreement and the allocation of the funds, finding the allocation was reasonable because Kelley applied an objective mathematical calculation to divide the funds, the unsecured creditors’s committee participated in the settlement process and approved of the allocation, and' the circumstances in the case dealt with complex issues, unsettled law, and massively complicated factual disputes. The district court overseeing the receivership also approved the settlement agreement and the allocation. Ritchie elected to appeal the bankruptcy court’s order regarding the allocation to the district court pursuant to 28 U.S.C. § 158. The district court affirmed the allocation as reasonable, concluding the bankruptcy court properly followed the factors found in Lambert v. Flight Transportation Corp. (In re Flight Transportation Corp. Securities Litigation), 730 F.2d 1128, 1135 (8th Cir.1984), Kelley as the trustee did not have a claim to the 15% paid by Petters, multiple assurances of trustworthiness supported the agreement although Kelley acted as the trustee and the receiver, and the allocation did not violate the coordination agreement." }, { "docid": "9852577", "title": "", "text": "“diverting” business that purchased electronics in bulk and resold them at high profits to major retailers. The business was a sham, and the only influx of money came from loans or investments. Petters was convicted of multiple counts of mail fraud, wire fraud, and money laundering perpetrated through PCI and PGW and was sentenced to fifty years in prison. In 2005, Petters, as PGW’s sole board member, directed PGW to purchase Polaroid, becoming the 100% beneficial owner of Polaroid stock, and Petters became the sole member and “Chairman” of Polaroid’s board of directors. Although a subsidiary of PGW, Polaroid operated as an independent, stand-alone corporation and engaged in legitimate business operations. On at least two occasions, Petters took several million dollars from Polaroid to satisfy PCI debts. In late 2007 and early 2008, Petters’s companies—including Polaroid—began to experience “major” financial difficulty. On January 31, 2008, a broker for PGW approached Ritchie about obtaining a loan. The next day, Ritchie loaned PGW $31 million to pay off Polaroid and PGW debts. The loan bore an 80% annual interest rate and was to be repaid within ninety days. Petters personally guaranteed the loan, but Ritchie was told the loan would also be “backed by the entire Polaroid corporation.” The note stated, “[T]he parties shall endeavor, as soon as reasonably practicable, to secure this Note ... by a pledge of 100% of the capital stock of ... the Polaroid Corporation.” Throughout February, Ritchie extended a number of additional loans, totaling $115 million, under the same terms. On May 9, 2008, Ritchie lent PGW and PCI an additional $12 million to be repaid in three weeks and bearing 362.1% annual interest. Polaroid was not a signatory on any of the loans, and although the initial loan was used to repay a Polaroid debt, the proceeds of the loans did not go to Polaroid. By Séptember 1, 2008, all of the loans were past due, and Ritchie began demanding collateral to secure the overdue loans. On September 19, five days before Petters was raided by the Federal Bureau of Investigation (FBI), Petters executed a Trademark" }, { "docid": "14977431", "title": "", "text": "WOLLMAN, Circuit Judge. The United States Trustee appointed Douglas A. Kelley, Esq., as Chapter 11 trustee for the debtors in the jointly administered bankruptcy proceedings for certain companies established by Thomas J. Petters, including Petters Company, Inc. (PCI), and Petters Group Worldwide, LLC (PGW). Ritchie objected to the appointment, arguing that Kelley did not qualify as a “disinterested person” as required by 11 U.S.C. § 1104(d) and as defined by 11 U.S.C. § 101(14)(C) and that Kelley’s appointment as the common trustee for the jointly administered estates would prejudice Ritchie. Ritchie also moved for expedited discovery, seeking to require Kelley to respond to discovery requests and to appear for a deposition. The bankruptcy court denied the discovery motion, overruled the objection, and approved Kelley’s appointment as trustee for all debtors. See In re Petters Co., 401 B.R. 391 (Bankr.Minn.2009) (overruling the objection and approving the appointment). The district court affirmed the bankruptcy court’s orders. Ritchie appeals, arguing that disabling conflicts of interest prevent Kelley from serving as an unbiased common trustee for the jointly administered estates and that the bankruptcy court abused its discretion in denying the discovery motion. We affirm. I. Background Before his arrest and conviction, Petters owned PCI and PGW, both of which were privately held limited liability companies. PCI was the venture capital arm of the Petters enterprises that utilized single purpose entities to obtain billions of dollars of funding, purportedly to acquire merchandise for sale to wholesalers and retailers nationwide. PGW held investments in numerous companies, and its principal asset was its stock in Polaroid. As explained more fully below, PCI, PGW, and certain related companies have petitioned for Chapter 11 bankruptcy relief. Ritchie is an investment group that has filed more than $200 million in claims against PGW. A. Civil Action In October 2008, the government commenced a civil action against Petters, several of his business associates, and his companies, PCI and PGW. The complaint alleged a massive Ponzi scheme that generated more than $3 billion in fraudulent proceeds. The government sought to freeze the defendants’ assets under the authority of the Anti-Fraud Injunction" }, { "docid": "18462901", "title": "", "text": "ORDER & OPINION LORNA G. SCHOFIELD, District Judge. Plaintiffs Ritchie Capital Management, LLC, Ritchie Capital Management, Ltd., Ritchie Special Credit Investments, Ltd., Rhone Holdings II, Ltd., Yorkville Investments I, LLC, and Ritchie Capital Structure Arbitrage Trading, Ltd. brought this action in New York state court against Defendants JPMorgan Chase & Co., JPMorgan Chase Bank, N.A. (collectively, “JPMC”), Richter Consulting, Inc. (“Richter”) and sixteen banks and financial institutions (the “Syndicated Lenders”). Plaintiffs assert violations of New York Debtor and Creditor Law, and common law. Defendants removed the action to this Court based on federal question jurisdiction under the Edge Act and because the action is “related to” proceedings in the United States Bankruptcy Court for the District of Minnesota. Plaintiffs now move to remand. For the reasons below, the motion is denied, and the case is transferred to the District of Minnesota. I. BACKGROUND A. Factual Background As required on a motion to remand, all relevant allegations in the Complaint are accepted as true and all factual ambiguities are resolved in favor of Plaintiffs. See, e.g., Kunstenaar v. Hertz Vehicles, LLC, No. 14 Civ. 1101, 2014 WL 1485843, at *1 n. 1 (S.D.N.Y. Apr. 14, 2014). The recitation below is based on the allegations in the Complaint except as otherwise indicated. The Complaint’s primary allegation is that JPMC knew, or consciously avoided learning, that Thomas J. Petters and his company Petters Company, Inc. (“PCI”), were committing fraud and operating a Ponzi scheme. Petters allegedly used JPMC bank accounts to launder money in furtherance of his frauds. As a result of JPMC and the Syndicated Lenders’ aiding and abetting Petters’ frauds, Plaintiffs suffered a loss of about $189 million. The timeline, in brief, is as follows. In 2005 JPMC sold its indirect majority ownership of Polaroid Corporation (“Polaroid”) to Petters and earned a large profit. Polaroid thus became a subsidiary of Petters Group Worldwide (“PGW”). To facilitate the sale, JPMC and the Syndicated Lenders loaned Petters a total of $375 million the day after the sale closed (the “Credit Facility”). When Petters and Polaroid 'were unable to repay these post-acquisition loans, JPMC," }, { "docid": "18969023", "title": "", "text": "creditors. Assuming for the purposes of our analysis that Ritchie has standing under the coordination agreement, when reviewing the coordination. agreement de novo, see Anderson v. Hess Corp., 649 F.3d 891, 896 (8th Cir.2011), we do not find Ritchie’s argument persuasive. After considering the language contained in paragraph III. B.2, we interpret the term parallel claims to mean claims arising from the same operative facts or the same wrongful conduct. See Wirig v. Kinney Shoe Corp., 461 N.W.2d 374, 377-79 (Minn.1990). Although the claims pursued by Kelley as the trustee and the receiver against VICIS are similar, they stem from separate wrongful conduct. 'The trustee’s claims are derived from PCI’s conduct, while the receiver’s claims are based upon Petters’s conduct. Consequently, the claims are not parallel. Additionally, Ritchie’s argument regarding the lack of a recovery from the same source bank account overlooks the broad language included in the coordination agreement which does not limit the variety of claims which the trustee and the receiver can bring. In other words, merely because the circumstances of this specific case did not result in parallel claims does not preclude parallel claims from existing under other circumstances. Ill For the reasons provided, we affirm. . The Honorable Gregory F. Kischel, Chief Judge, United States Bankruptcy Court for the District of Minnesota. . The Honorable Ann D. Montgomery, United States District Judge for the District of Minnesota. . Ritchie previously filed an objection to Kelley’s dual appointments as the trustee and the receiver based on a conflict of interest. The bankruptcy court overruled Ritchie's objection, finding no disabling conflict of interest which precluded Kelley from operating as both. We affirmed the bankruptcy court in Ritchie Special Credit Investments, Ltd. v. U.S. Trustee, 620 F.3d 847, 856 (8th Cir.2010). . The bankruptcy court determined the claims were not parallel claims because the sources of the funds which were used to make payments to VICIS were separate." }, { "docid": "17412761", "title": "", "text": "against or on behalf of Defendants, and all others acting for or on behalf of such persons (except the Receiver), are hereby enjoined from taking action that would interfere with the exclusive jurisdiction of this Court over the assets or documents of Defendants, including but not limited to: D. Initiating any other process or proceeding that would interfere with the Receiver’s managing or taking custody, control or possession of the assets or documents subject to this Reeeivership[.] Appellant App’x at 95-96. Twice after the Receivership Order was entered, Ritchie sought to intervene, urging the receivership court to exempt PGW and its wholly-owned subsidiary Polaroid from the asset freeze. Both times, the district court disallowed the intervention on account of untimeliness and failure to establish the denial of intervention would impair Ritchie’s ability to protect its interests. The Eighth Circuit affirmed the rulings. See United States v. Ritchie Special Credit Invs., Ltd., 620 F.3d 824 (8th Cir.2010). Criminal Action. In December 2008, a federal grand jury returned an indictment against Petters, PCI, and PGW on charges of mail fraud, wire fraud, money laundering, and conspiracy to commit the same offenses. Petters was convicted of the twenty charges against him and sentenced to fifty years’ imprisonment. The appeal from his convictions and sentence is currently pending before this court. See United States v. Thomas Petters, No. 10-1843 (8th Cir., argued Feb. 17, 2011). Polaroid’s Bankruptcy Action. On December 18, 2008, the Receiver filed a voluntary petition for relief under Chapter 11 of the Bankruptcy Code (later converted into Chapter 7) on behalf of Polaroid, among other Receivership entities. See In re Polaroid Corp., No. 08-46617 (Bankr.D. Minn., filed Dec. 18, 2008). Kelley was appointed as Chapter 11 trustee for PGW and PCI. In that capacity, Kelley commenced an adversary proceeding against Ritchie seeking to set aside Ritchie’s liens against Polaroid as fraudulent and preferential transfers. In this proceeding, he maintained that “literally days before or after the Ponzi scheme collapsed, Ritchie ... orchestrated a series of transactions targeted at securing the value of Polaroid and other assets owned or controlled by Thomas" }, { "docid": "14977435", "title": "", "text": "obtained from new investors to pay off prior creditors.” Ritchie speculated that its funds were likely used to pay prior creditors in the Ponzi scheme and claimed damages exceeding $220 million. In early October 2006, shortly after it had appointed a receiver, the Illinois court determined that its orders freezing assets and appointing a receiver had expired and deferred to the judgments of the federal district court. The district court denied Ritchie’s motion to intervene. In March 2009, Ritchie filed a second motion to intervene, which was also denied. See United States v. Petters, No. 08-cv-05348 (D.Minn. Apr. 29, 2009) (order denying second motion to intervene). We affirmed the denial of that motion, and to date, Kelley remains the receiver in the civil case. See United States v. Ritchie Special Credit Invs., Ltd., 620 F.3d 824 (8th Cir.2010). B. Criminal Case In December 2008, a federal grand jury indicted Petters, PCI, and PGW on charges of mail fraud, wire fraud, money laundering, and conspiracy. A superseding indictment was issued in June 2009. Both indictments sought forfeiture of property involved or traceable to the offenses alleged in the indictment or, if that property is unavailable, the defendants’ substitute property. Petters was convicted of the twenty charges against him and sentenced to fifty years’ imprisonment. C. Bankruptcy Case As receiver, Kelley filed Chapter 11 bankruptcy petitions for the debtors, and the bankruptcy court authorized joint administration of the bankruptcy cases. The companies’ management had resigned prior to the bankruptcy filings and Kelley served as the defacto debtor-in-possession. In December 2008, the U.S. Trustee and Ritchie brought motions for the appointment of Chapter 11 trustee or trustees. Ritchie sought appointment of a separate trustee for PGW. The bankruptcy court issued an order authorizing the U.S. Trustee to appoint one or more trustees. The U.S. Trustee selected Kelley to serve as the sole Chapter 11 trustee for the debtors in the jointly administered cases. Ritchie objected to the appointment, arguing that Kelley was disqualified from serving as trustee because of disabling conflicts of interest, and moved to compel discovery. With its objection overruled, its" }, { "docid": "18969014", "title": "", "text": "court to approve the allocation. Ritchie’s argument, however, overlooks the posture of the settlement agreement before the bankruptcy court. Prior to the settlement agreement becoming enforceable, the bankruptcy court needed to approve the agreement. See Fed. R. Bankr.P. 9019(a). Consequently, the integration clause found in the settlement agreement was not yet enforceable while Kelley’s motion for approval was pending before the bankruptcy court. The settlement was also contingent on approval by the district court overseeing the receivership. During the hearing on Kelley’s motion before the bankruptcy court, the bankruptcy court considered the arguments presented by the parties involved in the mediation, including Kelley, VICIS, and the unsecured creditors’s committee. Each of these parties indicated it considered the allocation as a part of the global resolution, which released claims held by and against VICIS for both the bankruptcy estate and the receivership. Without the allocation, according to the parties, settlement would not have occurred, resulting in PCI’s creditors missing the opportunity to receive $6,375,000. Consequently, it was not an abuse of discretion for the bankruptcy court to consider the allocation and the settlement agreement as a single settlement. See Lurie v. Blackwell (In re Popkin & Stern), 196 F.3d 933, 938 (8th Cir.1999) (“Several instruments constitute a single contract when they pertain to the same transaction and when the parties intend for them to be construed as such.”). Ritchie continues to maintain the district court’s reasoning was flawed because even though Petters transferred some funds, the amount received by VICIS from PCI totaled over $15 million, which is more than double the payment being made by VICIS, meaning PCI could properly receive the entire $7.5 million from .VICIS. Ritchie asserts the district court erred by assuming a portion of the funds paid by VICIS needed to be transferred to the receivership based on Petters’s transfer, of funds. Ritchie contends the receivership released any claims it had to the VICIS funds by executing the settlement agreement. ' Ritchie’s argument again overlooks that the settlement agreement was subject to approval by the bankruptcy court and the district court prior to it being enforceable." }, { "docid": "17412762", "title": "", "text": "of mail fraud, wire fraud, money laundering, and conspiracy to commit the same offenses. Petters was convicted of the twenty charges against him and sentenced to fifty years’ imprisonment. The appeal from his convictions and sentence is currently pending before this court. See United States v. Thomas Petters, No. 10-1843 (8th Cir., argued Feb. 17, 2011). Polaroid’s Bankruptcy Action. On December 18, 2008, the Receiver filed a voluntary petition for relief under Chapter 11 of the Bankruptcy Code (later converted into Chapter 7) on behalf of Polaroid, among other Receivership entities. See In re Polaroid Corp., No. 08-46617 (Bankr.D. Minn., filed Dec. 18, 2008). Kelley was appointed as Chapter 11 trustee for PGW and PCI. In that capacity, Kelley commenced an adversary proceeding against Ritchie seeking to set aside Ritchie’s liens against Polaroid as fraudulent and preferential transfers. In this proceeding, he maintained that “literally days before or after the Ponzi scheme collapsed, Ritchie ... orchestrated a series of transactions targeted at securing the value of Polaroid and other assets owned or controlled by Thomas Petters in a final-hour attempt to shore up, conceal and cover millions of dollars in losses.” Appellees App’x at 116. Ritchie vigorously disputed Kelley’s account of events. It countered Polaroid was never in need of bankruptcy protection and “Jeffries’s and Kelley’s sole purpose in placing Polaroid into bankruptcy was a bad faith attempt to void [Ritchie’s] (and others’) security interests in Polaroid.” Compl. ¶ 109. In the adversary-proceeding counterclaim, Ritchie sought a declaration that its security interest in certain Polaroid assets was valid, advancing many of the same allegations that are raised in the present complaint. The bankruptcy court authorized the sale of Polaroid assets unencumbered by Ritchie’s lien, but provided for attachment of Ritchie’s lien, to the extent it is determined to be valid, to the proceeds of the sale. According to Ritchie’s complaint in the present case, the bankruptcy court allowed the sale to proceed based, in part, on the sworn affidavit of Jeffries averring that “Ritchie invested at least $146 million into PCI as part of the fraudulent Ponzi scheme,” and that" }, { "docid": "9852576", "title": "", "text": "RILEY, Chief Judge. This case marks yet another dispute stemming from Tom Petters’s multi-billion dollar fraud. The bankruptcy trustee for Polaroid Corporation (Polaroid)—a Petters company—succeeded in the bankruptcy court in avoiding as fraudulent the transfer of several Polaroid trademarks to the appellants—Ritchie Capital Management, L.L.C.; Ritchie Special Credit Investments, Ltd.; Rhone Holdings II, Ltd.; Yorkville Investments, I, L.L.C.; and Rit-chie Capital Structure Arbitrage Trading, Ltd. On appeal, the district court affirmed the bankruptcy court’s decision. Ritchie appeals, and having jurisdiction under 28 U.S.C. § 158(d)(1), we now affirm. I. BACKGROUND The specifics of Petters’s Ponzi scheme and the numerous resulting civil disputes have been described in detail in several of this court’s other opinions. See, e.g., United States v. Petters, 663 F.3d 375, 379-80 (8th Cir.2011); Ritchie Capital Mgmt., L.L.C. v. Jeffries, 653 F.3d 755, 758-60 (8th Cir.2011); Ritchie Special Credit Invs., Ltd. v. U.S. Trustee, 620 F.3d 847, 850-51 (8th Cir.2010). We recite only those facts most relevant to the instant appeal. Petters, through his company Petters Company, Inc. (PCI), purported to run a “diverting” business that purchased electronics in bulk and resold them at high profits to major retailers. The business was a sham, and the only influx of money came from loans or investments. Petters was convicted of multiple counts of mail fraud, wire fraud, and money laundering perpetrated through PCI and PGW and was sentenced to fifty years in prison. In 2005, Petters, as PGW’s sole board member, directed PGW to purchase Polaroid, becoming the 100% beneficial owner of Polaroid stock, and Petters became the sole member and “Chairman” of Polaroid’s board of directors. Although a subsidiary of PGW, Polaroid operated as an independent, stand-alone corporation and engaged in legitimate business operations. On at least two occasions, Petters took several million dollars from Polaroid to satisfy PCI debts. In late 2007 and early 2008, Petters’s companies—including Polaroid—began to experience “major” financial difficulty. On January 31, 2008, a broker for PGW approached Ritchie about obtaining a loan. The next day, Ritchie loaned PGW $31 million to pay off Polaroid and PGW debts. The loan bore an 80%" }, { "docid": "18969007", "title": "", "text": "purportedly operated a “diverting” business primarily through PCI which purchased electronics in bulk and then resold them at high profits' to major retailers. The business, however, was a sham, and the only influx of money came from loans or investments. Between February 1, 2008, and May 9, 2008, Ritchie invested in Petters’s scheme, advancing approximately $189 million to PCI. In exchange for the funds, Ritchie received promissory notes. Rit-chie assigned two of its promissory notes to VICIS on February 19, 2008, with face values totaling $25 million. Beginning on June 13, 2008, through September 2008, PCI and Petters made a series of nineteen payments of not less than $23,785,508 to Ritchie. Eighteen of the payments originated from PCI, and Petters made the nineteenth payment by withdrawing funds from his personal checking account. Ritchie used a portion of the funds it received from PCI and Petters to pay VICIS $17,703,227.39 based upon the assigned promissory notes. Of the amount received by VICIS, approximately 15% ($2,701,200) originated from Petters’s payment and approximately 85% ($15,002,027.39) originated from PCI. After Petters’s scheme ended in September 2008, a receivership was created for Petters; PCI; Petters Group Worldwide, LLC (PGW); and other related entities. Kelley was appointed as the receiver and thereafter petitioned for relief under Chapter 11 of the United States Bankruptcy Code on behalf of PCI and PGW in accordance with the authority granted to him pursuant to the receivership order. The bankruptcy court appointed Kelley as the Chapter 11 trustee for PCI and PGW in February 2009. Due to the extent and impact of the fallout from Petters’s scheme, the United States, Kelley in his positions as the trustee and the- receiver, and the bankruptcy trustee for Polaroid Corporation, one of Petters’s wholly-owned companies, entered into a coordination agreement “to maximize recovery to victims and creditors and' minimize receivership and bankruptcy expenses .... ” The coordination agreement recognized there is a “significant overlap of identity” between the victims of the fraud and the creditors of the bankruptcy estates and “competing litigation would result in the overall diminishment of the recovery for victims and" }, { "docid": "20874824", "title": "", "text": "Petters’ fraudulent scheme, and (2) imperiled GECC’s odds of recouping its investment. Id. ¶¶ 72-75. By March 20, 2001, Red Tag’s credit facility was satisfied in full, thus ending GECC’s lending relationship with Petters and his companies. Id. ¶ 61. 3.Allegations Involving Other Entities Ritchie makes a series of allegations, that are not relevant here. In short, these, allegations are that, between 2000 and 2003, GECC “substantially assist[ed]” Petters in his fraudulent dealings that affected a series of entities not plaintiffs here: the Westford/Epsilon funds; Granite Investors Fund, L.P.; Equitec Group, LLC; and Lancelot Investors Fund, Ltd. See id. ¶¶ 79-94. Because these allegations do not concern Ritchie, are not otherwise relevant, and are confusing, the Court .does not discuss them further. 4.Ritchie’s Lending Relationship with Petters “Between February 1, 2008 and May 9, 2008, Petters fraudulently induced Plaintiffs to make a series of loans to Petters and one or more of his companies totaling $189 million.” Id. ¶ 101. Plaintiffs lost at least $157 million “[a]s a, direct and proximate cause of GECC’s decision to join” Petters’ fraud and to conspire with him. Id. ¶ 102. 5.The Civil and Criminal Proceedings Involving Petters and his Entities Petters’ criminal trial started in October 2009; until that trial, plaintiffs did not discover, and could not have discovered, GECC’s actions in aiding Petters. Id. ¶ 103. . Petters was. convicted and sentenced to 50 years in prison. See United States v. Thomas J. Petters, No. 08 Cr. 364(RHK)(AJB) (D.Minn.); see generally U.S. Dep’t of Justice, News Release: Tom Petters sentenced to 50 years in federal prison for orchestrating $3.7 billion Ponzi scheme, Apr: 8, 2010, available at http:// www.justice.gov/usao/mn/econ/econ0413. pdf (last visited August 3,2015). Bankruptcy proceedings have also been ongoing as to PCI and other Petters-affiliated entities. On October 8, 2010, Douglas Kelley, as Bankruptcy Trustee, filed a Complaint in the Minnesota Bankruptcy Court against GECC seeking turnover of any and all transfers and payoffs made by PCI, Petters Capital, or any other affiliate of PCI to GECC on the grounds that they constituted “property of the estate to be recovered and" }, { "docid": "18969022", "title": "", "text": "we find the bankruptcy court made an informed and independent judgment of the settlement agreement and the allocation and cannot say its decision “f[e]ll below the lowest point in the range of reasonableness.” Tri-State Fin., LLC, 525 F.3d at 654 (internal quotation marks omitted). Ritchie’s final challenge to the allocation is that it runs counter to the coordination agreement which governs the relationship between the receivership and the bankruptcy estate. Specifically, Rit-chie contends the allocation violates paragraph III.B.2 which provides any recovery based on parallel claims pursued by Kelley as the trustee and the receiver will inure to the benefit of the bankruptcy estate. Ritchie maintains the claims held by PCI and the receivership against VICIS are parallel claims and the bankruptcy court’s position with regard to parallel claims is untenable because the trustee and the receiver will never have overlapping claims to the same source bank account. Ritchie further argues it does not attempt to assert personal rights under the coordination agreement but seeks the protection of the coordination agreement for all' of PCI’s creditors. Assuming for the purposes of our analysis that Ritchie has standing under the coordination agreement, when reviewing the coordination. agreement de novo, see Anderson v. Hess Corp., 649 F.3d 891, 896 (8th Cir.2011), we do not find Ritchie’s argument persuasive. After considering the language contained in paragraph III. B.2, we interpret the term parallel claims to mean claims arising from the same operative facts or the same wrongful conduct. See Wirig v. Kinney Shoe Corp., 461 N.W.2d 374, 377-79 (Minn.1990). Although the claims pursued by Kelley as the trustee and the receiver against VICIS are similar, they stem from separate wrongful conduct. 'The trustee’s claims are derived from PCI’s conduct, while the receiver’s claims are based upon Petters’s conduct. Consequently, the claims are not parallel. Additionally, Ritchie’s argument regarding the lack of a recovery from the same source bank account overlooks the broad language included in the coordination agreement which does not limit the variety of claims which the trustee and the receiver can bring. In other words, merely because the circumstances of this" }, { "docid": "18969006", "title": "", "text": "BYE, Circuit Judge. Ritchie Capital Management, L.L.C., and other appellants (collectively, Ritchie) objected to an allocation of proceeds derived from a settlement between Douglas A. Kelley, in his capacity as Chapter 11 bankruptcy trustee of Petters Company, Inc. (PCI), and VICIS Capital Master Fund, Ltd. (VICIS). The bankruptcy court overruled the objection and approved the settlement and the allocation of proceeds. Ritchie appealed, and the district court affirmed. Ritchie again appeals, alleging the bankruptcy court abused its discretion by approving the allocation. We affirm. I Prior to his downfall in September 2008, Thomas Petters orchestrated a $3.65 billion Ponzi scheme. This Court has described in several of its opinions the specifics of Petters’s scheme and the numerous resulting civil disputes. See, e.g., United States v. Petters, 663 F.3d 375, 379-80 (8th Cir.2011); Ritchie Capital Mgmt., L.L.C. v. Jeffries, 653 F.3d 755, 758-60 (8th Cir. 2011); Ritchie Special Credit Invs., Ltd. v. U.S. Trustee, 620 F.3d 847, 850-51 (8th Cir.2010). We recite only those facts most relevant to the instant appeal. Petters, in facilitating his scheme, purportedly operated a “diverting” business primarily through PCI which purchased electronics in bulk and then resold them at high profits' to major retailers. The business, however, was a sham, and the only influx of money came from loans or investments. Between February 1, 2008, and May 9, 2008, Ritchie invested in Petters’s scheme, advancing approximately $189 million to PCI. In exchange for the funds, Ritchie received promissory notes. Rit-chie assigned two of its promissory notes to VICIS on February 19, 2008, with face values totaling $25 million. Beginning on June 13, 2008, through September 2008, PCI and Petters made a series of nineteen payments of not less than $23,785,508 to Ritchie. Eighteen of the payments originated from PCI, and Petters made the nineteenth payment by withdrawing funds from his personal checking account. Ritchie used a portion of the funds it received from PCI and Petters to pay VICIS $17,703,227.39 based upon the assigned promissory notes. Of the amount received by VICIS, approximately 15% ($2,701,200) originated from Petters’s payment and approximately 85% ($15,002,027.39) originated from PCI." }, { "docid": "14977434", "title": "", "text": "requires that any bankruptcy cases be governed by the requirements of the U.S. Bankruptcy Code, 11 U.S.C. § 101 et seq., and the Federal Rules of Bankruptcy Procedure. Id. at 15. The order further requires Kelley to “Mo-ordinate with representatives of the United States Attorney’s office and Court personnel as needed to ensure that any assets subject to the terms of this Order are available for criminal restitution, forfeiture, or other legal remedies in proceedings commenced by or on behalf of the United States.” Id. at 16-17. Ritchie moved to intervene, stating that an Illinois state court previously had appointed a receiver for PCI and PGW. Ritchie had filed suit in Illinois alleging that Petters, PCI, and PGW had defaulted on promissory notes held by Ritchie. The complaint alleged that Petters, PCI, and PGW had fraudulently induced Ritchie to sign purchase agreements and to extend the agreement’s due dates by falsely representing that PCI was a successful, viable business and by failing to disclose that “PCI was involved in a ‘Ponzi scheme’ that used funds obtained from new investors to pay off prior creditors.” Ritchie speculated that its funds were likely used to pay prior creditors in the Ponzi scheme and claimed damages exceeding $220 million. In early October 2006, shortly after it had appointed a receiver, the Illinois court determined that its orders freezing assets and appointing a receiver had expired and deferred to the judgments of the federal district court. The district court denied Ritchie’s motion to intervene. In March 2009, Ritchie filed a second motion to intervene, which was also denied. See United States v. Petters, No. 08-cv-05348 (D.Minn. Apr. 29, 2009) (order denying second motion to intervene). We affirmed the denial of that motion, and to date, Kelley remains the receiver in the civil case. See United States v. Ritchie Special Credit Invs., Ltd., 620 F.3d 824 (8th Cir.2010). B. Criminal Case In December 2008, a federal grand jury indicted Petters, PCI, and PGW on charges of mail fraud, wire fraud, money laundering, and conspiracy. A superseding indictment was issued in June 2009. Both indictments sought" }, { "docid": "14977432", "title": "", "text": "estates and that the bankruptcy court abused its discretion in denying the discovery motion. We affirm. I. Background Before his arrest and conviction, Petters owned PCI and PGW, both of which were privately held limited liability companies. PCI was the venture capital arm of the Petters enterprises that utilized single purpose entities to obtain billions of dollars of funding, purportedly to acquire merchandise for sale to wholesalers and retailers nationwide. PGW held investments in numerous companies, and its principal asset was its stock in Polaroid. As explained more fully below, PCI, PGW, and certain related companies have petitioned for Chapter 11 bankruptcy relief. Ritchie is an investment group that has filed more than $200 million in claims against PGW. A. Civil Action In October 2008, the government commenced a civil action against Petters, several of his business associates, and his companies, PCI and PGW. The complaint alleged a massive Ponzi scheme that generated more than $3 billion in fraudulent proceeds. The government sought to freeze the defendants’ assets under the authority of the Anti-Fraud Injunction Statute, 18 U.S.C. § 1345, thereby preserving the assets for victim restitution and potential forfeiture. The district court issued a temporary restraining order, essentially freezing the assets of PCI, PGW, and other related entities. Thereafter, the district court approved a stipulated preliminary injunction that maintained the asset freeze over PCI, PGW, and the companies’ subsidiaries, affiliates, and wholly owned or controlled entities. The assets were placed in receivership and Kelley was appointed to serve as the receiver. As receiver, Kelley serves as an agent of the district court and has been vested with the powers necessary to take immediate custody, control, and possession of the assets of the estates in receivership. United States v. Petters, No. 08-cv-05348 (D.Minn. Dec. 8, 2008) (order appointing receiver at 13-14) (Receiver Order). The scope of the receivership and Kelley’s duties and authority are set forth in the district court’s order. See id. at 13-18. The order authorizes Kelley to file bankruptcy petitions “for any of the entities to protect and preserve the assets of any of the entities” and" }, { "docid": "18969009", "title": "", "text": "creditors alike and undue delay in the distribution of assets!.]” On October 10, 2010, Kelley, as the trustee, commenced an adversary proceeding against Ritchie, VICIS, and other defendants, seeking to recover alleged fraudulent and preferential transfers under bankruptcy and state law. VICIS and Ritchie opposed the complaint. Kelley, as the receiver, also alleged the transfer by Petters was fraudulent and therefore recoverable, but he had yet to commence an action on this particular claim. Conversely, VICIS held a claim against PCI’s bankruptcy estate to recover the amount which remained outstanding on the promissory notes. After the filing of the adversary proceeding, Kelley met with VICIS to discuss a resolution of the claims. Kelley and VICIS, along with representation for the ■ unsecured creditors’s committee appointed in PCI’s bankruptcy case, mediated the dispute and reached a settlement. Pursuant to the settlement agreement, VICIS paid $7.5 million to Kelley in return for a global release of all claims held by and against it by either the receivership or the bankruptcy estate. The settlement agreement was contingent on approval by both the district court overseeing the receivership and the bankruptcy court. Kelley filed a verified motion to approve the settlement agreement with the bankruptcy court on February 6, 2014. The motion indicated the settlement agreement, among other things, resolved the disputes between Kelley, as the trustee and the receiver, and VICIS. The motion further included an allocation of the $7.5 million received from VICIS. According to Kelley, because Petters’s payment to VICIS constituted 15% of the overall amount received by VICIS and the bankruptcy estate did not have a claim to these funds, Kelley intended to allocate 15% of the funds received from VICIS to the receivership. Kelley indicated this allocation was part of the global resolution with VI-CIS. The unsecured creditors’s committee supported the settlement agreement and the allocation, but Ritchie, although supporting the settlement agreement, did not support the allocation and filed an objection. The bankruptcy court held a hearing on the motion and heard argument from Kelley, VICIS, the unsecured creditors’s committee, and Ritchie. At the conclusion of the hearing," } ]

[ { "docid": "15751765", "title": "", "text": "reasonable business needs or reasonably anticipated business needs. This presents a question of fact. The court is mindful that in making this determination it must examine the facts as they existed during the period involved and that it must avoid the temptation to substitute its judgment for that of the taxpayer’s officers and directors. Sterling Distributors, Inc. v. United States, 313 F.2d 803 (5 CA1963). Nevertheless, as stated by Mertens, “the court is not required to automatically accept the decisions of interested officers as the lodestone of reasonable need.” Mertens, supra, at 69. The court’s duty, then, is to scrutinize the testimony of the taxpayer’s officers concerning their subjective intent and the objective manifestations of the same in order to satisfy itself that the two coincide. Helvering v. National Grocery Co., 304 U.S. 282, 295, 58 S.Ct. 932, 82 L.Ed. 1346 (1938); Smoot Sand & Gravel Corp. v. Commissioner of Internal Revenue, 241 F.2d 197, 202 (4 CA), cert. denied, 354 U.S. 922, 77 S.Ct. 1383, 1 L.Ed.2d 1437 (1957). Stripped of obfuscation, plaintiff’s argument is that its accumulation of earnings in the form of working capital was justified by four needs. They are: (1) The need to replace its buildings, fixtures and equipment when and as they wore out; (2) The need to provide for ordinary, day-to-day expenses; (3) The need to retire the taxpayer’s long-term debts; (4) The need to provide funds to finance future expansion. The court must now examine each of these alleged justifications individually in light of the fact that at the end of fiscal 1962 the plaintiff had accumulated earnings in the form of working capital totaling $137,558 and that at the end of the following fiscal year this had risen to $358,630. Equally important in this connection is that in the fiscal year ending in 1962, the ratio of current assets to current liabilities was 2.4:1. In the following fiscal year, the ratio was 3.1:1. The argument with respect to the first justification is that the replacement cost of the taxpayer’s assets was expected to significantly exceed their original cost. Consequently, plaintiff asserts," } ]

[ { "docid": "12249976", "title": "", "text": "liability of $2,124,327.81, and the like). But on a review of evidentiary sufficiency, the record is examined in the light most favorable to the party prevailing below. And we deal again with the Tax Court’s “experience with the mainsprings of human conduct to the totality of the facts”. Commissioner of Internal Revenue v. Duberstein, supra, p. 289 of 363 U.S., p. 1198 of 80 S.Ct. The decided cases are supportive. One or more of these same factual elements, sometimes several in combination, are present and relied upon, for example, in the following: Helvering v. National Grocery Co., supra, 304 U.S. 282, 292-294, 58 S.Ct. 932, 938 (1938) (excess of cash over payables; tax savings; loans to the sole shareholder; “no conceivable expansion could have utilized so large a surplus”); Helvering v. Chicago Stock Yards Co., supra, 318 U.S. 693, 701, 63 S.Ct. 843 (1943) (the availability of accumulated earnings for the investment purpose and program of the sole shareholder; tax savings); American Metal Prod. Corp. v. Commissioner of Internal Revenue, supra, 287 F.2d 860, 863-865 (8 Cir. 1961) (failure to carry out program for enlarged accounts receivable and plant expansion; full control; possible tax savings; extreme liquidity; favorable ratio of current assets to liabilities ; very small dividends); Kerr-Cochran, Inc. v. Commissioner of Internal Revenue, supra, 253 F.2d 121, 125-128 (8 Cir. 1958) (loans to shareholders; use of earnings to buy investment property not related to regular business; favorable ratio between current assets and current liabilities; absence of extension of credit causing a freezing of working funds; tax saving); Bride v. Commissioner of Internal Revenue, 224 F.2d 39, 41-42 (8 Cir. 1955), cert. denied 350 U.S. 883, 76 S.Ct. 136, 100 L.Ed. 779 (absence of an objective which demanded an accumulation in a reasonably definite amount; possible tax savings); J. Gordon Turnbull, Inc. v. Commissioner of Internal Revenue, 373 F.2d 87 (5 Cir. 1967), cert. denied 389 U.S. 842, 88 S.Ct. 72, 19 L.Ed.2d 105, affirming 41 T.C. 358, 374 (1963) (favorable current asset-liability ratios; small ultimate tort liability as compared with amount originally asserted; use of funds to purchase" }, { "docid": "6062256", "title": "", "text": "of fact, so that for taxes as well as death the Judge’s fact findings come here with the Buckler and Shield of F.R.Civ.P. 52(a). Helvering v. National Grocery Co., 1938, 304 U.S. 282, 292-294, 58 S.Ct. 932, 82 L.Ed. 1346; Carlen Realty Co. v. Tomlinson, 5 Cir., 1965, 345 F.2d 998. We do have some pause about FY 1962 largely because of the plans to renew fixtures in the River Oaks store (the fixtures being leased by Taxpayer to the operating retail affiliate) within the succeeding four years or so. But with working capital of $137,558 at the end of FY 1962, a substantial amount of highly liquid assets including accrued rent from the affiliate, and the then effective amortization schedule of $50,000 per year on the existing long term debt, the Judge was entitled to conclude that Taxpayer had failed to demonstrate that retention of 100% of that year’s earn ings was needed that year to accomplish the replacements. No such doubts concern us for FY 1963. For while added liabilities were taken on in the form of long term debt for the purchase of the Crosstimbers Shopping Center — an acquisition we are quite willing to assume was an expansion in the business purposes of the corporation and not a mere investment in unrelated properties to possibly imperil the Judge’s finding that Taxpayer was not an investment or holding company —Taxpayer’s situation had markedly changed by the sale of its South Main land at a sixfold profit. First,, the gain to be taxed that year under the installment sale was primarily responsible for an increase in working capital to $358,-630. Next, and more important, the amount due under the long term installment note in subsequent years was $571,875, the net gain of which would be at least $474,448. Looking ahead — as the concept of reasonable accumulating contemplates —Taxpayer, as it surveyed the future at FY 1963’s end, could not ignore this rich resource. This bluechip note effectually secured by gilt-edged Houston land was then worth not less than the discounted value. Granted that for income tax purposes" }, { "docid": "2434940", "title": "", "text": "Internal Revenue, 5 Cir., 183 F.2d 739, 740, it was held that the Tax Court could not decide contrary to the uncontradicted opinion evidence, because, as Judge Hutcheson said, the record contained no evidence whatever to support the Tax Court’s decision. Judge Hut-cheson himself distinguished that case in Hightower v. Commissioner of Internal Revenue, 5 Cir., 187 F.2d 535, 536; see also Leedy-Glover Realty & Ins. Co. v. Commissioner of Internal Revenue, 5 Cir., 184 F.2d 833, 834. In the present case in addition to the opinions of the witnesses there was factual evidence from which reasonable inferences could be drawn. The evidence disclosed the detailed facts as to the sales, financial operation, and earnings of the business from 1935 through 1943. “To draw inferences, to weigh the evidence and to declare the result was the function of the Board (now the Tax Court)”. Helvering v. National Grocery Co., 304 U.S. 282, 295, 58 S.Ct. 932, 938, 82 L.Ed. 1346. The Tax Court was not concluded by the opinions of the witnesses. Dayton Power & Light Co. v. Public Utilities Commission of Ohio, 292 U.S. 290, 299, 54 S.Ct. 647, 78 L.Ed. 1267; Helvering v. National Grocery Co., supra. The Tax Court found that the enormous increase in sales during the taxable years was not entirely related to the services of the two officers. In Locke Mach. Co. v. Commissioner of Internal Revenue, 168 F.2d 21, 22, the Court of Appeals for the Sixth Circuit quoted from the opinion of the Tax Court as follows: “The condition of this taxpayer was very similar to that of practically all other concerns engaged in similar business in the United States and if this taxpayer can deduct inflated salaries which are based upon abnormal war profits because such compensation resulted from a long established policy of the taxpayer corporation, then the requirement that all salaries must be ordinary, necessary and reasonable has not been observed and the Government, at a time when it needs tax income most vitally, will be unjustly deprived of such income.” It was not essential that there be testimony" }, { "docid": "22903574", "title": "", "text": "Davis, Judge, delivered the opinion of the court: We 'have to decide, on undisputed facts submitted 'by joint stipulation, a narrow but prickly issue emerging from the accumulated earnings tax imposed by § 531 of the Internal Revenue Code of 1954. Taxpayer, a Florida corporation, was assessed income tax deficiencies for 1958-1962, including accumulated earnings taxes. Within ten days of notice and demand by the Government, the company paid the entire amount of the tax alleged to be due, with interest from the return due date of the years in question. It then sued to recover the amount thus paid under § 531. Motor Fuel Carriers, Inc. v. United States, 202 F. Supp. 497 (N.D. Fla. 1962), remanded 322 F. 2d 576 (C.A. 5 1963), on remand 244 F. Supp. 380 (N.D. Fla. 1965). Judgment for the Government for the entire amount was finally rendered in the spring of 1965. Thereafter, plaintiff made claim with the District Director of Internal Revenue for return of the interest paid on the accumulated earnings tax, $34,381.09. The theory was that this tax is a penalty or additional tax, interest upon which must be assessed under § 6601 (f) (3), prescribing that interest on assessable penalties or additions to the tax 'begins ten days after notice and demand. Upon failure of the District Director to allow the claim, plaintiff filed suit for refund in this court. The case presents two related questions: (1) Is the accumulated earnings tax an “assessable penalty, additional amount, or addition to the tax” within § 6601(f) (3) ; and (2) if the interest on the § 531 tax is not covered by § 6601 (dr) (3), what, for the purposes of § 6601 (a), is the “last date prescribed for payment”? Since we find for the taxpayer on alternative grounds, we discuss both of these issues in the matrix of the accumulated earnings tax. The accumulated earnings tax: The history of the accumulated earnings tax reflects a congressional purpose to minimize revenue losses caused by non-distribution of gains and profits by corporations attempting to shield their shareholders from the" }, { "docid": "22903575", "title": "", "text": "was that this tax is a penalty or additional tax, interest upon which must be assessed under § 6601 (f) (3), prescribing that interest on assessable penalties or additions to the tax 'begins ten days after notice and demand. Upon failure of the District Director to allow the claim, plaintiff filed suit for refund in this court. The case presents two related questions: (1) Is the accumulated earnings tax an “assessable penalty, additional amount, or addition to the tax” within § 6601(f) (3) ; and (2) if the interest on the § 531 tax is not covered by § 6601 (dr) (3), what, for the purposes of § 6601 (a), is the “last date prescribed for payment”? Since we find for the taxpayer on alternative grounds, we discuss both of these issues in the matrix of the accumulated earnings tax. The accumulated earnings tax: The history of the accumulated earnings tax reflects a congressional purpose to minimize revenue losses caused by non-distribution of gains and profits by corporations attempting to shield their shareholders from the individual income tax. See United States v. Donruss Co., 393 U.S. 297, 303, 307 (1969); Helvering v. National Grocery Co., 304 U.S. 282 (1938); Williams Investment Co. v. United States, 77 Ct. Cl. 396, 426, 3 F. Supp. 225, 239 (1933) (concurring opinion); Casey v. Comm'r, 267 F. 2d 26, 32 (C.A. 2 1959) (Hand, J., concurring opinion) ; Estate of Goodall v. Comm'r, 391 F. 2d 775, 796 (C.A. 8), cert. denied, Sub. Nom. Good-All Electric Mfg. Co. v. Comm'r, 393 U.S. 829 (1968). To achieve that goal Congress discourages undesirable withholding by treating, to a certain extent, that as done which ought to be done. See Pomeroy, The Statutory Pattern, 17 W.Res.L.Rev. 704, 704-705 (1966). See also B. Bittker & J. Eustice, Federal Income Taxation of Corporations and Shareholders, 209-238 (2nd ed. 1966). In 1913, at the start of the modern federal income tax, shareholders were required to include in their returns their distributive share of the yearly corporate earnings, whether distributed or not, of those businesses “however created or organized, formed or" }, { "docid": "15548314", "title": "", "text": "some sort of business but had no real present intention that it should do so.” It declared further that taxpayer failed to show any concrete basis for a finding that at December 31, 1948, it had business prospects other than winding up the car selling business it had been conducting. Mr. Egan came to his death in 1953 and in that year the taxpayer was liquidated and its assets were turned over to the executor of Mr. Egan’s estate. It had never applied its accumulated surplus to any business needs. On this review the petitioner does not question that the effect of retaining its large surplus accumulated in 1948 and prior years without distributing it was to save Mr. Egan from large surtax nor that the surplus was never used by it for any business needs. But it contends that findings should have been made in accord with the allegations of its petition for redetermination of deficiency above set forth and the surtax should have been set aside. It is well settled that the issue raised was a question of fact to be determined by the Tax Court. Helvering v. National Grocery Company, 304 U.S. 282, 58 S.Ct. 932, 82 L.Ed. 1346; Bride v. Commissioner, 8 Cir., 224 F.2d 39, cer-tiorari denied, 350 U.S. 883, 76 S.Ct. 136, and whether there was substantial evidence to support the ultimate findings can best be shown by setting forth a summary of the Findings of Fact of the Tax Court as follows: Taxpayer is a Minnesota corporation and during the years here involved maintained its principal office at 222 North Concord Street, South St. Paul, Minnesota. It kept its books and filed its income tax returns on the basis of a calendar year and upon the accrual method of accounting. Egan, Inc. is the present name of taxpayer. As incorporated, its name was Egan Chevrolet, Inc., the change having been effected by amendment to its charter on December 31, 1948. Taxpayer was incorporated December 14, 1932, with an authorized capital stock of $50,-000 represented by 500 shares of par value stock at $100" }, { "docid": "6062263", "title": "", "text": "but, as will appear, taxpayer had much more liquidity than necessary for such replacement and for all other reasonable business needs.” (Emphasis in the original.) See also Van Hummell, 23 TCM 1765, aff’d., 10 Cir., 1966, 364 F.2d 746, cert. denied, 1967, 386 U.S. 956, 87 S.Ct. 1019, 18 L.Ed.2d 102. The Trial Court w’as not, therefore, laboring under any supposed basic error of law. The questions- — which might well have gone either way, or for that matter both ways, one for FY 1962 another for FY 1963 — were essentially a complex of facts. Resolution of the facts was the role of the Trial Judge. F.R.Civ.P. 52(a). There it ends. Affirmed. . Fulton National Bank v. Tate, 5 Cir., 1966, 363 F.2d 562; Continental Motors Corp. v. Continental Aviation Corp., 5 Cir., 1967, 375 F.2d 857; Davis v. Parkhill-Goodloe Co., Inc., 5 Cir., 1962, 302 F.2d 489. . Taxpayer presses United States v. Ludey, 1927, 274 U.S. 295, 47 S.Ct. 608, 71 L.Ed. 1054; Detroit Edison Co. v. Commissioner of Internal Revenue, 1943, 319 U.S. 98, 63 S.Ct. 902, 87 L.Ed. 1286; Treasury Regulations § 1.167(a)-l(a); and Massey Motors, Inc. v. United States, 1960, 364 U.S. 92, 80 S.Ct. 1411, 4 L.Ed.2d 1592 which stated: “First, it may he well to orient ourselves. The Commissioner admits that the automobiles involved here are, for tax purposes, de-preciable assets rather than ordinary stock in trade. Such assets, employed from day to day in business, generally decrease in utility and value as they are used. It was the design >of the Congress to permit the taxpayer to recover, tax free the total cost to him of such capital assets; hence it recognized that this decrease in value — depreciation—was a legitimate tax deduction as business expense.” 364 U.S. at 96, 80 S.Ct. at 1414, 4 L.Ed. at 1595-1596. . Taxpayer recoils at the thought: “The Government has argued that Taxpayer is not entitled to accumulate earnings and profits equal to depreciation reserves. Several pages are devoted to this point. Taxpayer has never made such an argument. Such an argument is senseless" }, { "docid": "11986506", "title": "", "text": "December 1945, the appellant had developed a new product known as Lift-O-Matic which is a device for lowering or raising automobile windows by pushing an electric button. A very large expense is contemplated to bring this product into production. But there is no evidence that during the tax years in suit the appellant foresaw the need of any substantial expenditures for the development of this device, of which the earliest form had not progressed to the stage of a working model until 1938. If we allow to stand, as we think we should, the finding that earnings or profits were permitted to accumulate beyond the reasonable needs of the taxpayer’s business, then the finding that a tax avoidance motive played a part in this result is also a permissible inference, notwithstanding denials by the officers. Helvering v. National Grocery Co., 304 U.S. 282, 295, 58 S.Ct. 932, 82 L.Ed. 1346; Helvering v. Chicago Stock Yards Co., 318 U.S. 693, 701, 63 S.Ct. 843, 87 L.Ed. 1086. Not only is the finding bolstered by the express provision of § 102(b) of the Revenue Act of 1936 but the defendant presented evidence from which the court found that had all the net earnings been distributed as dividends in 1936 and 1937 the six largest stockholders would have had to pay additional income taxes aggregating $1,850,000. The appellant complains that the court erred in giving determinative effect to the decision of the Board of Tax Appeals involving the two prior years. But Judge Knighc’s opinion states expressly that the decision of the prior case is not res judicata for the later years. D.C., 67 F.Supp. 311, 324, We read his opinion as treating the decision of the Board of Tax Appeals not as “determinative” but merely as persuasive, as it properly was, in enabling him to form his independent judgment on the issues before him. Finally, error is asserted in the exclusion of Mr. Oishei’s testimony as to a conversation with Mr. Wilson in 1936 in which the latter expressed his opinion that “we were doing the right thing in planning on the" }, { "docid": "6062258", "title": "", "text": "the deferred payments did not constitute “income” or “earnings” for FY 1963 the discounted value of this highly liquid asset had to be reckoned with in weighing foreseeable, planned (i) needs against (ii) available resources at the time of need. With this resource in hand and crediting fully the good faith sincerity of Taxpayer’s distinguished management that down the line the operating company would open up new Houston suburban stores in which Taxpayer would render significant fiscal services, the uncertainty as outlined by the Trial Judge in time, expense, kind and amount was quite enough for him to conclude that Taxpayer had failed to establish a need for an additional $47,115 by retention of 100% of the operational earnings of FY 1963. As the insulation of F.R.Civ.P. 52(a) is thin or nonexistent when fact-findings are the product of an erroneous view of controlling law, we must in our proper role assay the only distinctive issue of whether, as claimed by Taxpayer, the Trial Court committed a basic error of law. One difficulty we have is that of understanding. But divining it as best we can, we think the Taxpayer means to suggest that we ought to approve the theory that seems to run somewhat as follows. The first step of the theory begins with the accepted “brick and mortar” generality characterized by Electric Regulator Corp. v. Commissioner of Internal Revenue, 2 Cir., 1964, 336 F.2d 339, 344 as the “governing principle — cogently” stated in Smoot Sand & Gravel Corp. v. Commissioner of Internal Revenue, 4 Cir., 1960, 274 F.2d 495, 501, cert. denied, 1960, 362 U.S. 976, 80 S.Ct. 1061, 4 L.Ed.2d 1011. “To the extent the surplus has been translated into plant expansion, increased receivables, enlarged inventories, or other assets related to its business, the corporation may accumulate surplus with impunity *- * *» because the “accumulated earnings which have been converted into brick, mortar, machinery, equipment and inventory were scarcely available for current expenses or expansion.” 336 F. 2d 339, 344. The second step is that the theory of deduction for depreciation is to afford resources from" }, { "docid": "1629766", "title": "", "text": "MINTON, Circuit Judge. The petitioner-appellant is a common law trust which was organized in 1924. The units of beneficial interest of the trust are all owned by F. W. Olin, his wife, Mary, and his two sons, Spencer and John. The respondent levied a deficiency assessment against the petitioner for the calendar years 1932 and 1933, pursuant to Section 104 of the Revenue Act of 1932, 47 Stat. 195, 26 U.S.C.A. Int.Rev.Acts, page 508, the pertinent provisions of which are set forth in the footnote. The Board of Tax Appeals sustained the position of the Commissioner, with a recomputation of the tax which is not questioned. The Board of Tax Appeals found that the petitioner had been availed of in 1932 and 1933 for the purpose of preventing the imposition of the taxes on the owners of the beneficial interest in the petitioner, and that the petitioner had in said years permitted its gains and profits to accumulate beyond the reasonable needs of the business. The latter finding gives rise, under ■ the statute, to a presumption that the accumulations were for the purpose of escaping the tax. The sole question before us is whether the findings of the Board are sustained by sufficient evidence. We have nothing to do with weighing the evidence, drawing inferences therefrom, or making findings of fact. Helvering v. National Grocery Co., 304 U.S. 282, 294, 58 S.Ct. 932, 82 L.Ed. 1346; Helvering v. Rankin, 295 U.S. 123, 131, 132, 55 S.Ct. 732, 79 L.Ed. 1343. F. W. Olin had been engaged in the manufacture of powder and expanded into the business of manufacturing high explosives also. To promote the powder business, he gained, through Western Cartridge Company, which he controlled, the ownership of the Winchester Repeating Arms Co. The manufacturer of powder, high explosives, and arms was the chief interest of the Olin family, and the petitioner was organized primarily to help them control their companies engaged in these enterprises. We shall not attempt to set forth the assets and liabilities of the petitioner, and a breakdown of them. Neither shall we set forth" }, { "docid": "6062257", "title": "", "text": "in the form of long term debt for the purchase of the Crosstimbers Shopping Center — an acquisition we are quite willing to assume was an expansion in the business purposes of the corporation and not a mere investment in unrelated properties to possibly imperil the Judge’s finding that Taxpayer was not an investment or holding company —Taxpayer’s situation had markedly changed by the sale of its South Main land at a sixfold profit. First,, the gain to be taxed that year under the installment sale was primarily responsible for an increase in working capital to $358,-630. Next, and more important, the amount due under the long term installment note in subsequent years was $571,875, the net gain of which would be at least $474,448. Looking ahead — as the concept of reasonable accumulating contemplates —Taxpayer, as it surveyed the future at FY 1963’s end, could not ignore this rich resource. This bluechip note effectually secured by gilt-edged Houston land was then worth not less than the discounted value. Granted that for income tax purposes the deferred payments did not constitute “income” or “earnings” for FY 1963 the discounted value of this highly liquid asset had to be reckoned with in weighing foreseeable, planned (i) needs against (ii) available resources at the time of need. With this resource in hand and crediting fully the good faith sincerity of Taxpayer’s distinguished management that down the line the operating company would open up new Houston suburban stores in which Taxpayer would render significant fiscal services, the uncertainty as outlined by the Trial Judge in time, expense, kind and amount was quite enough for him to conclude that Taxpayer had failed to establish a need for an additional $47,115 by retention of 100% of the operational earnings of FY 1963. As the insulation of F.R.Civ.P. 52(a) is thin or nonexistent when fact-findings are the product of an erroneous view of controlling law, we must in our proper role assay the only distinctive issue of whether, as claimed by Taxpayer, the Trial Court committed a basic error of law. One difficulty we have is" }, { "docid": "17611318", "title": "", "text": "this posture, the argument is here advanced that the record is void of any evidence which impeaches or contradicts the amounts calculated by petitioners to be-necessary for their stated purposes. Boiled down, petitioners’ contention is-that there is no evidence to support the findings and conclusion of the Tax Court. This attack cannot be sustained in the-face of controlling principles of law. The-Tax Court, as trier of the facts, was not obliged to accept as true Jack Adler’s testimony bearing upon the intention and' purposes of the corporations, which for all practical purposes were owned and controlled by him. Helvering v. Nat. Grocery Co., 304 U.S. 282, 295, 58 S.Ct. 932, 82 L.Ed. 1346; Latchis Theatres of Keene v. Commissioner of Int. Rev., 1 Cir., 214 F.2d 834, 836. We do not try the issues de novo, which, in effect, petitioners would have us do. See Helvering v. Nat. Grocery Co., supra, 304 U.S. at page 294, 58 S.Ct. at page 938. Where, as here, it is clearly demonstrated that the Tax Court reached its findings and conclusions upon a fair appraisal of all of the evidence, our function is to determine whether the Tax Court’s findings and ultimate decisions are supported by substantial evidence upon the record as a whole, and are not against the clear weight of the evidence or induced by an erroneous view of the law. If this question is answered in the affirmative, we have no right to set aside the result below. Sachs v. C. I. R., 8 Cir., 277 F.2d 879, 881, certiorari denied 364 U.S. 833, 81 S.Ct. 63, 5 L.Ed.2d 59; Crown Iron Works Co. v. Commissioner of Internal Rev., 8 Cir., 245 F.2d 357, 360; Kerr-Cochran, Inc. v. Commissioner of Internal Rev., supra, 253 F.2d at pages 124-125; Latchis Theatres of Keene v. Commissioner of Int. Rev., supra, 214 F.2d at page 835. The questions of whether accumulations are in excess of the reasonable needs of the business, and of whether the corporation has been availed of to avoid imposition of surtax on shareholders by accumulating earnings or profits, are essentially" }, { "docid": "6062255", "title": "", "text": "JOHN R. BROWN, Chief Judge. This is an appeal by Taxpayer (Bat-telstein Investment Company) from an adverse tax refund judgment the effect of which is to sustain the Government’s contention that there was an unreasonable accumulation of earnings setting in train the accumulated earnings tax under 26 U.S.C.A. §§ 531, 532 for FY 1962 and FY 1963 (ending January 31). We affirm. The facts, most of which are undisputed, are set out in the detailed opinion of the District Court upon which we draw freely without reiteration here. Battelstein Investment Co. v. United States, S.D.Tex., 1969, 302 F.Supp. 320. This opinion likewise canvasses fully the legal principles and their application to the several categories of corporate “needs” urged by Taxpayer as justification for accumulation of 100% of the earnings for each of these two years. Indeed, save for the unique contention of Taxpayer which the District Judge impliedly rejected but did not specifically mention and which we have difficulty in understanding, there are no really distinctive questions of law as such. All is essentially one of fact, so that for taxes as well as death the Judge’s fact findings come here with the Buckler and Shield of F.R.Civ.P. 52(a). Helvering v. National Grocery Co., 1938, 304 U.S. 282, 292-294, 58 S.Ct. 932, 82 L.Ed. 1346; Carlen Realty Co. v. Tomlinson, 5 Cir., 1965, 345 F.2d 998. We do have some pause about FY 1962 largely because of the plans to renew fixtures in the River Oaks store (the fixtures being leased by Taxpayer to the operating retail affiliate) within the succeeding four years or so. But with working capital of $137,558 at the end of FY 1962, a substantial amount of highly liquid assets including accrued rent from the affiliate, and the then effective amortization schedule of $50,000 per year on the existing long term debt, the Judge was entitled to conclude that Taxpayer had failed to demonstrate that retention of 100% of that year’s earn ings was needed that year to accomplish the replacements. No such doubts concern us for FY 1963. For while added liabilities were taken on" }, { "docid": "11516808", "title": "", "text": "4 Cir., 1957, 241 F.2d 197, 202. Finally, taxpayer points to the Tax Court’s decision in Breitfeller Sales, Inc., 1957, 28 T.C. 1164, as contrary to its holding here. On the facts of that case the taxpayer, an automobile dealer, was held justified in accumulating earnings because of the “possibility that it might be required to finance a new dealership -» * * » j-j. ghouls he observed that a “contemplated” expansion must be shown to have been a real consideration during the taxable year, and not simply an afterthought to justify challenged accumulations of surplus. Helvering v. National Grocery Co., 1938, 304 U.S. 282, 58 S.Ct. 932, 82 L.Ed. 1346; Hedberg-Friedheim Contracting Co. v. Commissioner, 8 Cir., 1958, 251 F.2d 839. The finding in Breitfeller was that the taxpayer’s directors, during the years in issue, “reviewed and approved plans and policies for expanding facilities, making provision for protection of petitioner’s ‘interest’ in the St. Albans area, and the possible financing of installment sales of automobiles.” 28 T.C. 1164, 1167. In the case at bar, however, there was no such evidence and no such finding; on the contrary, what the Tax Court did find was that the petitioner never intended to enter the ready-mix business and never formulated definite plans for doing so. II How much working capital was needed by the taxpayer in the years from 1945 to 1950 ? In our earlier opinion, we said that: “Working capital needs of businesses vary, being dependent upon the nature of the business, its credit policies, the amount of inventories and rate of turnover, the amount of accounts receivable and the collection rate thereof, the availability of credit to the business, and similar relevant factors. “In our view, the Tax Court should make a determination of petitioner’s working capital needs based upon the foregoing considerations. * * ” 4 Cir., 1957, 241 F.2d 197, 207. The Tax Court has now found that most of petitioner’s sales during the years in question were for cash, payable within 30 to 60 days; that the average inventory turnover period was less than 4 days;" }, { "docid": "21937216", "title": "", "text": "future needs should be considered as ones which would be taken care of out of future profits. The Court recognizes that some account should be taken of the availability of future earnings to meet legitimate needs. World Pub. Co. v. United States, 169 F.2d 186, 189 (10 Cir. 1948); Barrow Manufacturing Co. v. C. I. R., 294 F.2d 79, 82 (5 Cir. 1961). The Court has rejected the claimed need for certain items on this ground. The facts do not support the government’s contention that all of taxpayer's reasonably anticipated future needs could be paid out of future earnings. Particularly, taxpayer should not be required, as of April 1961 and 1962, to have looked to future earnings to take care of the three reasonably anticipated future needs (1, 2 and 3) recognized above. Accordingly, the Court finds that the reasonably anticipated future needs as of April 30,1961 were $560,000. Add ing this figure to the need for current working capital as of that date, $2,250,-000, gives the sum of $2,810,000 as “the reasonable needs of the business” as of April 30, 1961. Since this figure exceeds the accumulated earnings and profits not invested in fixed assets as of that date, namely, $2,431,145.53 (see Schedule C), there had been no accumulation of earnings and profits in excess of needs. No section 531 tax could properly have been assessed for the taxable year ending April 30, 1961. The corresponding figures as of April 30, 1962 are: future needs, $1,300,000; current needs, $2,000,000; total needs, $3,300,000. Accumulated earnings and profits not invested in fixed assets were $2,868,907 as of that date. Therefore, no section 531 tax could have been properly assessed for the taxable year ended April 30,1962. The Court further finds that none of the accumulated earnings and profits were accumulated or used for any of the purposes which the applicable regulation, 26 C.F.R. § 1.537-2 (c), lists as indicative that earnings and profits are being accumulated beyond the reasonable needs of the business. II. If, contrary to the findings and conclusions in section I of this opinion, the evidence had shown" }, { "docid": "12249968", "title": "", "text": "make good tax law to hold, as we think is the ultimate implication of the corporation’s argument, that there may be unlimited accumulation so long as the possibility of further tax or renegotiation liability exists and is undetermined. We see nothing of meritorious substance, therefore, in the argument that the Tax Court failed to find facts essential for a decision. This takes us to the real issue under § 102, namely, whether the court’s decision finds adequate support in the record. The governing legal principles are established. The purpose of the surtax, of course, is to compel a corporation to distribute profits not needed for its business and to prevent its being used as a shield against the income tax on the shareholders. Helvering v. Chicago Stock Yards Co., 318 U.S. 693, 699, 63 S.Ct. 843, 87 L.Ed. 1086 (1943). Where the question of tax liability centers on an accumulation of earnings and profits “beyond the reasonable needs of the business”, the issue is essentially one of fact. Kerr-Cochran, Inc. v. Commissioner of Internal Revenue, 253 F.2d 121, 124 (8 Cir. 1958); American Metal Prod. Corp. v. Commissioner of Internal Revenue, supra, p. 864 of 287 F.2d. Consequently, the Tax Court determination is conclusive if supported by substantial evidence. Helvering v. National Grocery Co., 304 U.S. 282, 294, 58 S.Ct. 932, 82 L.Ed. 1346 (1938); American Metal Prod. Corp. v. Commissioner of Internal Revenue, supra; Kerr-Cochran, Inc. v. Commissioner of Internal Revenue, supra; Hedberg-Freidheim Contracting Co. v. Commissioner of Internal Revenue, 251 F.2d 839, 842 (8 Cir. 1958). In American Metal Prod. Corp. v. Commissioner of Internal Revenue, supra, p. 863 of 287 F.2d, we noted that “while the ultimate determination concerns the presence of a purpose to avoid income tax upon shareholders, the real controversy, as perhaps is the situation in most cases of this type, concerns the presence or absence of a valid business reason for accumulating earnings”. Section 537 of the 1954 Code defines the term “reasonable needs of the business” to include “the reasonably anticipated needs of the business”. This had no counterpart in the 1939" }, { "docid": "11986505", "title": "", "text": "a surplus are (a) the 1927 Recapitalization Agreements, (b) the maintaining of its position in the industry, and (c) the necessity to preserve its capital and to diversify its products because the basic patents on its vacuum-operated windshield wiper would expire in 1942. These reasons were considered by the district judge and we are not convinced that his rejection of each and all of them as justification for the large accumulations was erroneous. The conservation of earnings in order to be able to release the restricted stock under the 1927 agreements would be beneficial to the holders of such stock but satisfied no business need of the corporation. By 1936 Trico’s position as sole supplier of windshield wipers to the automobile industry appeared to be secure; it owned its plant, did its own manufacturing and owed no debts of consequence. We see nothing in the evidence to suggest that it was necessary to increase the surplus in those years in order to maintain the position it had attained. At the time of the trial in December 1945, the appellant had developed a new product known as Lift-O-Matic which is a device for lowering or raising automobile windows by pushing an electric button. A very large expense is contemplated to bring this product into production. But there is no evidence that during the tax years in suit the appellant foresaw the need of any substantial expenditures for the development of this device, of which the earliest form had not progressed to the stage of a working model until 1938. If we allow to stand, as we think we should, the finding that earnings or profits were permitted to accumulate beyond the reasonable needs of the taxpayer’s business, then the finding that a tax avoidance motive played a part in this result is also a permissible inference, notwithstanding denials by the officers. Helvering v. National Grocery Co., 304 U.S. 282, 295, 58 S.Ct. 932, 82 L.Ed. 1346; Helvering v. Chicago Stock Yards Co., 318 U.S. 693, 701, 63 S.Ct. 843, 87 L.Ed. 1086. Not only is the finding bolstered by the express" }, { "docid": "21350257", "title": "", "text": "Welch v. Helvering, 290 U.S. 111, 115, 54 S.Ct. 8, 78 L.Ed. 212; Helvering v. National Grocery Co., 304 U.S. 282, 294, 295, 58 S.Ct. 932, 82 L.Ed. 1346; Helvering v. Talbott’s Estate, 4 Cir., 1940, 116 F.2d 160, 162. There was no error in the Board’s denial of the taxpayer’s motions submitted at the commencement of the hearing, “first, that issue should be found against Respondent upon the pleadings, in so far as it is based on Section 102, and in the alternative, that the burden of proof of establishing the facts calling for the application of Section 102 be put on the Respondent, for the reason that he had made no determination of fact on which to ground his application of the statute”. At the hearing before the Board of Tax Appeals the taxpayer attempted to show by various witnesses that its failure to declare dividends in the years 1935 and 1936 was not due to an intention to prevent the imposition of surtax upon its stockholders. It attempted to prove its point by testimony to the effect that the undistributed income of the corporation was reasonably required by the corporation for contemplated repairs and working capital. The Board, however, made findings to the effect that the taxpayer’s gains and profits were permitted to accumulate beyond the reasonable needs of the business during the years in question. It is obvious that if this finding is sustained, the decision of the Board must be affirmed, for the Act, quoted above, provides that the fact that earnings or profits of a corporation are permitted to accumulate beyond the reasonable needs of the business, constitutes prima facie evidence of a purpose to avoid the individual surtax. The decision of this case, therefore turns on whether or not this finding is to be sustained. The taxpayer maintains that the finding is an ultimate conclusion “to be distinguished from the findings of primary, evidentiary, or circumstantial facts”, citing Bogardus v. Commissioner, 302 U.S. 34, 58 S.Ct. 61, 64, 82 L.Ed. 32; Helvering v. Tex-Penn. Oil Co., 300 U.S. 481, 57 S.Ct. 569, 81" }, { "docid": "7798589", "title": "", "text": "(2d Cir. 1963), loans were made to shareholders, and investments were made in the stock of unrelated corporations. In Youngs Rubber Corp. v. Commissioner, T.C.Mem. 1962-300, aff’d, 331 F.2d 12 (2d Cir. 1964) large reserves were kept, accumulated for personal, not corporate,, purposes and moneys were set aside for specific uses which never materialized. On the other hand in R. Gsell & Co.,, supra, the need for the accumulation was-obvious. Mindful of the possibility -of the misuse of the corporate form and the-careful examination which must be made-when no dividends have been declared by those in control of a closely-owned corporation, we have, under these facts, no-hesitancy in declaring our “definite and firm conviction” that the Tax Court' was-in error in concluding that petitioner was-availed of for the prohibited purpose. See United States v. United States Gypsum Co., 333 U.S. 364, 394, 68 S.Ct. 625, 92 L.Ed. 746 (1947). The purpose of the-section 531 surtax is to discourage individual taxpayers from abusing the corporate form for the purpose of decreasing their personal income tax liability, not to- award the Commissioner an e* post facto veto over the decisions of the board of directors. In our opinion, petitioner’s dividend policy reflected an appropriate exercise of the managerial function, dictated by the needs and interests of the corporation. The order and decision of the Tax Court is reversed with directions to enter judgment for the petitioner. . Section 531 provides: “§ 531. Imposition of accumulated earnings tax “In addition to other taxes imposed by this chapter, there is hereby imposed for each taxable year on the accumulated taxable income (as defined in section 535) of every corporation described in section 532, an accumulated earnings tax equal to the sum of— “(1) 27% percent of the accumulated taxable income not in excess of $100,-000, plus “(2) 38% percent of the accumulated taxable income in excess of $100,000.” . Section 533(a) provides: “§ 533. (a) Unreasonable accumulation determinative of purpose.— “For purposes of section 532, the fact that the earnings and profits of a corporation are permitted to accumulate beyond the reasonable needs of" }, { "docid": "11516807", "title": "", "text": "reasonable limits in concluding from all the testimony in the case that there was at the time no reasonable cause to consider petitioner’s entry into this new enterprise more than a remote possibility. Another circumstance cited by petitioner is that it “kept from $3,000,000 to $3,300,000 on deposit in the Riggs National Bank, without interest, in the hope that those seeking to destroy or take its business would be deterred.” This is treated as strong proof of its contention; yet petitioner does not really tie in the deposit with the alleged reasonable belief that it would be forced to engage in the ready-mix business. The fact that it kept on hand a large balance of uninvested cash is entirely neutral in respect to the issue the Tax Court was called upon to decide. There may have been other reasons for maintaining this accumulation, such as the expectation of deflation felt by many at the close of the war. In our earlier opinion, we noted that petitioner claimed to be “awaiting ‘the usual post-war deflation.’ ” 4 Cir., 1957, 241 F.2d 197, 202. Finally, taxpayer points to the Tax Court’s decision in Breitfeller Sales, Inc., 1957, 28 T.C. 1164, as contrary to its holding here. On the facts of that case the taxpayer, an automobile dealer, was held justified in accumulating earnings because of the “possibility that it might be required to finance a new dealership -» * * » j-j. ghouls he observed that a “contemplated” expansion must be shown to have been a real consideration during the taxable year, and not simply an afterthought to justify challenged accumulations of surplus. Helvering v. National Grocery Co., 1938, 304 U.S. 282, 58 S.Ct. 932, 82 L.Ed. 1346; Hedberg-Friedheim Contracting Co. v. Commissioner, 8 Cir., 1958, 251 F.2d 839. The finding in Breitfeller was that the taxpayer’s directors, during the years in issue, “reviewed and approved plans and policies for expanding facilities, making provision for protection of petitioner’s ‘interest’ in the St. Albans area, and the possible financing of installment sales of automobiles.” 28 T.C. 1164, 1167. In the case at bar," } ]

[ { "docid": "20200500", "title": "", "text": "the highly impeachable nature of the testimony, and Catalán’s lack of an explanation of the testimony’s significance to his defense. Id.; see also, Smith, 46 F.3d at 1231 (“Judicial economy is obviously not dispositive, but it is important in a lengthy conspiracy trial.”). There was no manifest abuse of discretion in the district court’s denial of the motion. B. Order to Quash the Subpoena for Tax Returns Catalán objects to the district court’s grant of Bravo’s motion to quash a subpoena for his personal tax records and the tax records of his company, Ranger American Armored Security. A trial court may quash an “unreasonable or oppressive” subpoena, and we review the trial court’s decision to quash for abuse of discretion. United States v. Henry, 482 F.3d 27, 30 (1st. Cir.2007). The defendants were indicted under the Hobbs Act, 18 U.S.C. § 1951(a), which criminalizes robberies that have an effect on interstate commerce. United States v. Jiménez-Torres, 435 F.3d 3, 7 (1st Cir.2006). At trial, Bravo testified at length about the products his business regularly purchases from the mainland United States (such as specially equipped armored vehicles, weapons, and high-tech carrier’s money bags). He also testified that the company was forced to pay high deductibles after each robbery, totaling $75,000, and explained that its insurer raised both its premium and deductible as a result of the robberies. The defendants sought the personal and corporate tax records of Bravo and his company to challenge the government’s assertion that the robberies affected interstate commerce. The trial court granted Bravo’s motion to quash, determining that the tax records could not be relevant to the question whether the robbery sufficiently affected interstate commerce. In granting the motion, the court relied on this circuit’s settled case law that a robbery need only have “a realistic probability of a de minimus effect on interstate commerce” to bring it within the reach of the Hobbs Act. United States v. Capozzi, 347 F.3d 327, 335 (1st Cir.2003) (quoting United States v. Butt, 955 F.2d 77, 80 n. 2 (1st Cir.1992)). “One common method for the government to establish the" } ]

[ { "docid": "3407292", "title": "", "text": "the brandishing charges, for a total of 852 months’ imprisonment. Chaplain appeals, challenging the sufficiency of the evidence and the jury instruction for the Hobbs Act robberies. II. DISCUSSION A. Sufficiency of the Evidence Chaplain argues that the evidence presented at trial was insufficient to support his convictions beyond a reasonable doubt. Our standard of review for a challenge to the.sufficiency of the evidence and a denial of a motion for a judgment of acquittal is the same, de novo. United States v. Adejumo, 772 F.3d 513, 522 (8th Cir. 2014). We view the evidence “in a light most favorable to the verdict and accept[ ] all- reasonable inferences supporting the verdict.” United States v. Bell, 761 F.3d 900, 906 (8th Cir. 2014) (quoting United States v. Colton, 742 F.3d 345, 348 (8th Cir. 2014) (per curiam)). “[W]e reverse ‘only if- no reasonable jury could have found the defendant guilty beyond a reasonable doubt.’ ” United States v. Morales, 445 F.3d 1081, 1084 (8th Cir. 2006) (quoting United States v. Howard, 413 F.3d 861, 864 (8th Cir. 2005)). 1. Hobbs Act Robberies A person commits a Hobbs Act robbery if he “in any way or degree obstructs, delays, or affects commerce or the movement of any article or commodity in commerce, by robbery or extortion or attempts or conspires so to do.” 18 U.S.C. § 1951(a). GPS tracking through Chaplain’s ankle bracelet, eye witness testimony, physical evidence, and video surveillance provide overwhelming ‘ evidence to establish Chaplain’s involvement in each robbery, and Chaplain does not explicitly contest this evidence. Chaplain argues only that the\" government failed to show that the robberies affected interstate commerce. We disagree. “Commerce” is defined as commerce within the District of Columbia, or any Territory or Possession of the United States; all commerce be tween any point in a State, Territory, Possession, or the District of Columbia and any point outside thereof; all commence between points within the same State through any place outside such State; and all other commerce over which the United States has jurisdiction. Id. § 1951(b)(3). Commerce has been defined very broadly" }, { "docid": "23168826", "title": "", "text": "F.2d at 68. No such testimony was presented in this case about the goods sold at Chuck’s Place or the Open Hearth Restaurant. In Richardson, which also involved law enforcement officers involved in an extortion scheme, there was evidence that alcoholic beverages sold by the victim bars were for the most part manufactured out of state. See Richardson, 596 F.2d at 160. Again, no such'testimony was presented about the gambling operations involved in this case. We do note that there was testimony from Jeffrey Chrystal, who threw the gambling stag at the Open Hearth Restaurant, that the food served at the party traveled in interstate commerce. Chrystal testified, however, that he .catered the food for the party himself from his own restaurant. See Jt. Appx. at 402-07. We find no evidence that the food which Chrystal testified had traveled in interstate commerce was provided by either the operators of the stag or the own ers of the Open Hearth Restaurant. It does not appear that Chrystal or any of the stag’s attendees were targets for extortion-no arrests were made, no citations were issued, and nothing was confiscated. Id. at 406. Therefore, we do not think the interstate commerce connection is satisfied for purposes of the Hobbs Act, even under the de minimis standard, where the only connection to commerce is that the patrons brought their own food to the stag. The government argues that one bookmaker, Mickey Murphy, testified that he got the odds for his operation from a wire service located in New York or Las Vegas. See Jt. Appx. at 334. The government contends that this evidence also demonstrates the requisite connection with interstate commerce. We disagree with the government’s characterization of Murphy’s testimony. There is nothing in Murphy’s testimony which indicates where the service he used was located. It further appears that Murphy only assumed that the information came from New York or Las Vegas based on what employees at his service told him. In any event, we think the fact that the betting line originally emanated from New York or Las Vegas is insufficient to establish" }, { "docid": "21458722", "title": "", "text": "Act punishes “[w]ho[m]ever in any way or degree obstructs, delays, or affects commerce or the movement of any article or commodity in commerce, by robbery or extortion.” 18 U.S.C. § 1951(a). The term “commerce” as defined by the statute means, inter alia, “all commerce between any point in a State, Territory, Possession, or the District of Columbia and any point outside thereof.” Id. § 1951(b)(3). A Hobbs Act prosecution requires the government to prove that the defendant committed, or attempted or conspired to commit, a robbery or act of extortion that caused an interference with interstate commerce. United States v. Robinson, 119 F.3d 1205, 1212 (5th Cir.1997). In this instance, sufficient evidence must indicate that each alleged violation of the Hobbs Act (i.e., each driver who was pulled over and ultimately extorted) resulted in some interference with interstate commerce. See United States v. Diaz, 248 F.3d 1065, 1084 (11th Cir.2001) (“Unlike a conspiracy charged under the Hobbs Act, which only requires proof that defendants’ scheme would have affected interstate commerce, a substantive Hobbs Act violation requires an actual effect on interstate commerce.”). This circuit’s caselaw is consistent on this point. In Robinson, we noted that “[e]very robbery or act of extortion in violation of the Hobbs Act must have an effect on interstate commerce; the Act’s express jurisdictional element ensures this.” 119 F.3d at 1215. In United States v. Jennings, 195 F.3d 795, 802 (5th Cir. 1999), we affirmed the defendant’s conviction for attempted interference with interstate commerce in violation of the Hobbs Act only after finding that a successful completion of his scheme “would have ... curtailed interstate purchases.” 195 F.3d at 802. We have refused to affirm convictions under the Hobbs Act when the gov- eminent failed to prove that the defendant’s acts had an effect on interstate commerce, which is necessarily more difficult to show when the victim of the crime is an individual and not a business. See Box, 50 F.3d at 352; United States v. Collins, 40 F.3d 95, 100-01 (5th Cir.1994). In Box, the defendants were convicted, inter alia, of both (1) conspiracy to" }, { "docid": "14647037", "title": "", "text": "interstate commerce.”) (affirming the conviction of a defendant who stole approximately $320 from a convenience store and killed its owner); United States v. Morris, 247 F.3d 1080, 1087 (10th Cir.2001) (“[W]e have repeatedly held that the government need only show a de minimis effect on interstate commerce to prove a Hobbs Act violation ... because the Act has a jurisdictional element, which ensures that in each case a nexus between the conduct at issue and interstate commerce exists.”) (affirming the Hobbs Act convictions of a defendant who robbed unspecified amounts from two grocery stores and a Burger King); Wise-man, 172 F.3d at 1216 (“[O]nly a potential effect on commerce is required to satisfy the interstate commerce element”) (upholding six Hobbs Act robbery convictions in which the defendant stole between $2,500 and $20,000 during each robbery); Nguyen, 155 F.3d at 1224 (“The minimal effect on commerce may be established by evidence that the assets of a business engaged in interstate commerce, or which customarily purchases items in interstate commerce, are depleted”) (upholding a Hobbs Act conviction when defendant’s robbery of a restaurant and taking of money from murder victim’s purse led restaurant to eventually shut down); United States v. Zeigler, 19 F.3d 486, 489 (10th Cir.1994) (“In accordance with the plain language of the statute, this court has held that the jurisdictional predicate of the Hobbs Act can be satisfied by a showing of any de minimis effect on commerce.”) (affirming a defendant’s six convictions for robberies ranging in amount from $160 to $1,500 and suggesting that even theft of $100 could satisfy the Act) (internal quotation marks and citations omitted). The aggregation/depletion-of-assets theory is based on the Supreme Court’s decision in Wickard v. Filburn, 317 U.S. 111, 63 S.Ct. 82, 87 L.Ed. 122 (1942). In Wickard, the Court upheld Congress’s power under the Commerce Clause to regulate a farmer’s production of wheat that was purely for home use. The Court reasoned that because the consumption of homegrown wheat would reduce an individual’s demand for wheat from the broader marketplace, the cumulative effect of such home consumption could have a substantial" }, { "docid": "2232388", "title": "", "text": "422 (1994). The depletion of assets curtails “the victim’s potential as a purchaser of such goods.” Zeigler, 19 F.3d at 490 (quotation marks and citation omitted). During trial, the government presented evidence which showed that the Mandarin Restaurant was a business engaged in interstate commerce and that its assets were depleted by the robbery. Mr. Sun testified that, before the robbery, the restaurant had often purchased specialty food products from vendors in California, Missouri, and Oklahoma, and that the money stolen by Defendant would have been used to purchase more of those items. He testified that the restaurant purchased fewer out-of-state items after the robbery, in part because it closed for twenty-two days and also because business decreased significantly after it reopened due to customers’ fears about dining at the restaurant. Mr. Sun also testified that purchases by customers using out-of-state credit cards declined after the robbery. According to Mr. Sun’s testimony, the business eventually failed as a result of the robbery because he could not run the restaurant himself, attract customers, or generate revenue, and, therefore, he could not purchase supplies in interstate commerce for the restaurant. An FBI agent confirmed Mr. Sun’s statements, testifying that credit card sales declined and business revenues decreased after the robbery. We conclude that the record evidence and the inferences therefrom demonstrated the requisite effect on interstate commerce. Defendant claims that the murder of Mrs. Sun, which was committed during the robbery, should not be considered as proof of the effect of the robbery on interstate commerce. The government may show the effect-on-commerce requirement not only by the effect of stolen money on interstate commerce but also by evidence showing an “interference ‘in any way or degree ’ ... by robbery or extortion.” United States v. Boston, 718 F.2d 1511, 1516 (10th Cir.1983) (further emphasis added) (quoting 18 U.S.C. § 1951(a)), cert. denied, 466 U.S. 974, 104 S.Ct. 2352, 80 L.Ed.2d 825 (1984); cf. United States v. Paredes, 139 F.3d 840, 844-45 (11th Cir.1998) (holding that meager evidence showing use of firearm purchased out of state and victims’ sale of merchandise manufactured out" }, { "docid": "23307097", "title": "", "text": "William Bargman was the store manager who was approached by Wiseman, and at trial he positively identified Wiseman. V R. 112-15. Other details that he gave of the robbery showed that the robbers followed the same general method they had used in the previous five robberies. In sum, we find that sufficient evidence corroborated the defendant’s confession as to his participation in five robberies and that his commission of the sixth robbery was also established by sufficient evidence. Defendant raises two other arguments attacking the sufficiency of the evidence. We must determine whether the requisite connection to interstate commerce was proven to support the robbery convictions under the Hobbs Act, and we must examine the evidence regarding the use of a firearm in the Silver City and Clovis robberies. B In reviewing the evidence on the six robbery counts thus far, we have omitted the element which distinguishes violations of the Hobbs Act from common law robbery and provides the basis for federal jurisdiction in this case—the requirement that the robberies have some nexus with interstate commerce. The Hobbs Act provides for the punishment of anyone who “in any way or degree obstructs, delays, or affects commerce or the movement of any article or commodity in commerce, by robbery or extortion or attempts or conspires so to do...18 U.S.C. § 1951(a) (emphasis added). This language shows the intent to “use all the constitutional power Congress has” to protect interstate commerce. Stirone v. United States, 361 U.S. 212, 215, 80 S.Ct. 270, 4 L.Ed.2d 252 (1960). Consistent with that legislative intent, we have held that only a de minimis effect on commerce must be shown. E.g., United States v. Bolton, 68 F.3d 396, 398-99 (10th Cir.1995). Defendant’s argument that the evidence was insufficient to establish the interstate commerce element necessary for the Hobbs Act convictions is a narrow one. He concedes that only a de minimis effect need be proven and acknowledges our holding that this minimal effect can be established by evidence that the stolen money would have been used to purchase items in interstate commerce, a concept known as" }, { "docid": "14569225", "title": "", "text": "(Count III); and, finally, with possession of a firearm without a serial number in violation of 26 U.S.C. § 5861(i) (Count IV). The jury found Guerra guilty of all counts, and thereafter the district judge sentenced him to a total of 401 months of imprisonment, 41 months on Counts I, III, IV and 360 months on Count II, to run consecutively to the other counts, followed by a three year term of supervised release, and a $200 special assessment. Guerra filed a timely notice of appeal of his Hobbs Act robbery conviction, raising only the question of whether the robbery had a sufficient effect on interstate commerce to support the conviction. We review de novo a challenge to the sufficiency of the evidence, United States v. Keller, 916 F.2d 628, 632 (11th Cir.1990), cert. denied, 499 U.S. 978, 111 S.Ct. 1628, 113 L.Ed.2d 724 (1991), and we consider that evidence in the light most favorable to the government, drawing all inferences and credibility choices in favor of the jury’s verdict, United States v. Adair, 951 F.2d 316, 318 (11th Cir.1992). II. Appellant claims that the government failed to adduce sufficient evidence to show that the robbery affected interstate commerce and that, as a result, his Hobbs Act conviction must be reversed. The Hobbs Act provides that “[wjhoever in any way or degree obstructs, delays, or affects commerce or the movement of any article or commodity in commerce, by robbery or extortion or attempts or conspires so to do ... shall be fined under this title or imprisoned not more than twenty years, or both.” 18 U.S.C. § 1951(a). The Act broadly defines “commerce” as being “commerce within the District of Columbia, or any Territory or Possession of the United States; all commerce between any point in a State, Territory, Possession, or the District of Columbia and any point outside thereof; all commerce between points within the same State through any place outside such State; and all other commerce over which the United States has jurisdiction.” Id. § 1951(b)(3). In Stirone v. United States, 361 U.S. 212, 80 S.Ct. 270, 4" }, { "docid": "2232387", "title": "", "text": "did not demonstrate that the robbery affected interstate commerce. The Hobbs Act is implicated if someone “in any way or degree obstructs, delays, or affects commerce or the movement of any article or commodity in commerce, by robbery or extortion or attempts or conspires to do so.” 18 U.S.C. § 1951(a). After the Supreme Court’s decision in United States v. Lopez, 514 U.S. 549, 115 S.Ct. 1624, 131 L.Ed.2d 626 (1995), we held that, to support a conviction under the Hobbs Act, the government must show only that the defendant’s acts had a minimal effect on interstate commerce. See United States v. Bolton, 68 F.3d 396, 397-99 (10th Cir.1995), cert. denied, 516 U.S. 1137, 116 S.Ct. 966, 133 L.Ed.2d 887 (1996). The minimal effect on commerce may be established by evidence that the assets of a business engaged in interstate commerce, or which customarily purchases items in interstate commerce, are depleted. See id. at 399; United States v. Zeigler, 19 F.3d 486, 489-90 (10th Cir.), cert. denied, 513 U.S. 1003, 115 S.Ct. 517, 130 L.Ed.2d 422 (1994). The depletion of assets curtails “the victim’s potential as a purchaser of such goods.” Zeigler, 19 F.3d at 490 (quotation marks and citation omitted). During trial, the government presented evidence which showed that the Mandarin Restaurant was a business engaged in interstate commerce and that its assets were depleted by the robbery. Mr. Sun testified that, before the robbery, the restaurant had often purchased specialty food products from vendors in California, Missouri, and Oklahoma, and that the money stolen by Defendant would have been used to purchase more of those items. He testified that the restaurant purchased fewer out-of-state items after the robbery, in part because it closed for twenty-two days and also because business decreased significantly after it reopened due to customers’ fears about dining at the restaurant. Mr. Sun also testified that purchases by customers using out-of-state credit cards declined after the robbery. According to Mr. Sun’s testimony, the business eventually failed as a result of the robbery because he could not run the restaurant himself, attract customers, or generate revenue," }, { "docid": "7984489", "title": "", "text": "$6,000 in Rivera Gas receipts. Rivera-Lopez testified that he planned to use the money to provide a service for certain clients whereby he would cash their social security checks and then use the proceeds from these checks to pay his suppliers. At the conclusion of the all of the testimony, Casiano filed a motion for a judgment of acquittal on the ground that the government failed to prove beyond a reasonable doubt that the robberies affected interstate commerce. See Fed R. Crim P. 29. He asserted that merely showing that business proceeds were stolen from a private home is insufficient to establish the requisite nexus with interstate commerce. The district court denied the motion. Having filed a Rule 29 motion at the close of the evidence, Casiano has preserved his sufficiency challenge. See United States v. Van Horn, 277 F.3d 48, 54 (1st Cir.2002). We consider his claim de novo, surveying the evidence in the light most favorable to the verdict. See United States v. Sebaggala, 256 F.3d 59, 63 (1st Cir.2001). “The test is whether the evidence, construed favorably to the government, permitted rational jurors to conclude, beyond a reasonable doubt, that [Casiano] was guilty as charged.” Id. The Hobbs Act prohibits, inter alia, participating in a robbery that “in any way or degree obstructs, delays or affects commerce.” 18 U.S.C. § 1951(a). The scope of the Hobbs Act extends as far as Congress’s power to regulate conduct under the Commerce Clause. See Stirone v. United States, 361 U.S. 212, 215, 80 S.Ct. 270, 4 L.Ed.2d 252 (1960). The commerce element of the offense is met if the conduct in question creates “a realistic probability of a de minimis effect on interstate commerce.” Capozzi 347 F.3d at 335 (quoting United States v. Butt, 955 F.2d 77, 80 (1st Cir.1992)). Casiano contends that a de mmimis effect cannot be shown where the robbery is of an individual instead of a business. There is no merit to this contention. See United States v. McCormack, 371 F.3d 22, 28-29 (1st Cir.2004); United States v. Nguyen, 246 F.3d 52, 54-55 (1st Cir.2001). Nevertheless," }, { "docid": "23391437", "title": "", "text": "by robbery” shall be guilty of an offense against the United States. Mr. Chanthadara was additionally charged under 18 U.S.C. § 2 with aiding and abetting a Hobbs Act violation. Because we have already concluded there existed overwhelming evidence that Mr. Chanthadara aided and abetted the robbery, we must proceed to consider whether there was overwhelming evidence that the robbery of the Mandarin Chinese Restaurant affected interstate commerce “in any way or degree.” 18 U.S.C. § 1951(a). In Nguyen, we reiterated that a violation of the Hobbs Act requires proof of only a de minimis effect on interstate commerce. We have held that a depletion of assets potentially affecting interstate commerce constitutes a sufficient nexus to interstate commerce under the Hobbs Act. To establish this de minimis effect on interstate commerce the government must show that the crime depleted the assets of a business engaged in interstate commerce, thereby curtailing the victim’s potential as a purchaser of goods. Nguyen, 155 F.3d at 1228 (emphasis added); see also United States v. Zeigler, 19 F.3d 486, 495 (10th Cir.1994) (“The Hobbs Act’s jurisdictional predicate can be satisfied if a mere de minimis effect on interstate commerce is shown.”). We further held that the jury could consider Mrs. Sun’s death and the money stolen from her purse in assessing the effect on interstate commerce. See id. at 1227. Mr. Chanthadara does not dispute that approximately seven percent of the Mandarin restaurant’s total expenses was comprised of out-of-state food purchases and that the restaurant’s revenues included those generated through the use of interstate credit cards. He also does not dispute that, following the robbery, the police ordered the restaurant to be closed for twenty-two days for investigation. Both Mr. Sun and the FBI’s accounting expert testified that the restaurant’s revenues and interstate purchases dropped markedly after the robbery, causing the previously profitable business to close five months after it re-opened. Mr. Chanthadara concedes “the lengthy police closure order and the decision of some people to dine elsewhere may have had an eventual impact on the restaurant’s level of out of state purchasing.” Aplt’s Br." }, { "docid": "2749811", "title": "", "text": "the rest of the jewelry was worthless. The diamond ring was eventually purchased by Rafidi for $22,000. The money was divided among the co-conspirators. Appellant’s cut was $10,000, Gigliot-ti’s was $8000, and Volpe’s was $4000. III. Discussion There are two issues Appellant advances that warrant discussion. We first address Appellant’s argument that the government failed to prove the necessary effect on interstate commerce as required by the Hobbs Act, 18 U.S.C. § 1951, (Counts five and six). We then address the propriety of Appellant’s convictions for conspiracy to commit money laundering under 18 U.S.C. 1956(h), (Count three) and money laundering under 18 U.S.C. § 1956(a)(l)(A)(i), (Count 4). A. Hobbs Act We review Appellant’s convictions under the Hobbs Act de novo. See, e.g., United States v. Gray, 260 F.3d 1267, 1271 (11th Cir.2001) (“Whether sufficient evidence was presented at trial to support appellants’ convictions is a question of law subject to de novo review.”) (quoting United States v. Diaz, 248 F.3d 1065, 1084 (11th Cir.2001)). We consider that evidence in the light most favorable to the government, drawing all inferences and credibility choices in favor of the jury’s verdict. See United States v. Guerra, 164 F.3d 1358, 1359 (11th Cir.1999). The Hobbs Act provides that “[wjhoever in any way or degree obstructs, delays, or affects commerce or the movement of any article or commodity in commerce, by robbery or extortion or attempts or conspires so to do ... shall be fined under this title or imprisoned not more that twenty years, or both.” 18 U.S.C. § 1951(a). The Act broadly defines “commerce” as being “commerce within the District of Columbia, or any Territory or Possession of the United States; all commerce between any point in a State, Territory, Possession or the District of Columbia and any point outside thereof; all commerce between points within the same State through any place outside such State; and all other commerce over which the United States has jurisdiction.” Id. § 1951(b)(3). The Act is expansive in scope and does not “lend [itself] to a restrictive interpretation.” United States v. Culbert, 435 U.S. 371, 373 98" }, { "docid": "22090394", "title": "", "text": "government, and accepting all reasonable inferences drawn from the evidence that supports the jury’s verdict.” United States v. Flores, 474 F.3d 1100, 1105 (8th Cir.2007) (citation and internal quotation omitted). i. Hobbs Act The relevant portion of the Hobbs Act imposes a fine or imprisonment on anyone who “in any way or degree obstructs, delays, or affects commerce ..., by robbery or extortion or attempts or conspires so to do....” 18 U.S.C. § 1951. We have recognized that “a statute with an express jurisdictional nexus to interstate commerce may be applied in circumstances where the actual connection to interstate commerce is small.” Dobbs, 449 F.3d at 912. “[RJobberies from small commercial establishments qualify as Hobbs Act violations so long as the commercial establishments deal in goods that move through interstate commerce.” Id. (affirming a Hobbs Act conviction for the robbery of a stand-alone, mom-and-pop convenience store). Payments on insurance claims from out-of-state insurers covering the loss from a robbery may also serve as relevant evidence establishing an effect on interstate commerce. United States v. Williams, 308 F.3d 833, 839 (8th Cir.2002). The bar robberies meet the required threshold. The record indicates that every bar robbed was covered by an out-of-state insurer, and all but one filed an insurance claim and received a reimbursement from their respective insurer. The one bar that did not submit an insurance claim suffered “quite a bit” of a business slowdown at night because “older people [were] afraid to come out.” Trial Tr. at 607. A similar effect on business was reported by each of the other bars as well. Because the sale of out-of-state beer was a primary source of revenue at every bar robbed by McAdory, the reduction in business had a direct effect on the demand by these bars for an out-of-state commercial product. In light of the foregoing, the robberies involved a sufficient nexus to interstate commerce to qualify as Hobbs Act violations. ii. Conspiracy There was also sufficient evidence that McAdory conspired to commit the robberies at issue. To establish a conspiracy, the government must prove beyond a reasonable doubt that" }, { "docid": "23648499", "title": "", "text": "22 (1st Cir.1995) (citing Pinkerton v. United States, 328 U.S. 640, 66 S.Ct. 1180, 90 L.Ed. 1489 (1946)). However, “the government need not show that the conspirators knew all the details of the conspiracy.” United States v. Orrego-Martínez, 575 F.3d 1, 8 (1st Cir.2009) (citation and internal quotation marks omitted). 3.Analysis a. Arzola-Martínez Arzola-Martinez argues that evidence of what he claims were merely “occasional” sales of “small” amounts of cocaine to Rivera-Rodríguez was insufficient to warrant his conviction as a conspirator of Las Avispas Dos or to establish a violation of 21 U.S.C. § 860. Arzola-Martinez contends that the prosecution did not establish that he had a stake in the success of the retail sales made by the drug organ ization at the housing project or in its profits. Furthermore, Arzola-Martinez argues that, because there was no evidence that Arzola-Martinez sold cocaine to Rivera-Rodríguez near the School, the evidence was insufficient to convict him under 21 U.S.C. § 860. Arzola-Martinez’s arguments miss the mark. We find that sufficient evidence was presented at trial for a rational jury to conclude beyond a reasonable doubt that Arzola-Martinez was a conspirator of Las Avispas Dos and to establish his violation of 21 U.S.C. § 860. First, a former member of both Las Avispas Uno and Dos, Brito-Pacheco, testified that Arzola-Martinez was a member of Las Avispas Dos with whom he would “sell drugs” and “shoot” people. Brito-Pacheco further testified that Arzola-Martinez “quite frequently” sold cocaine in the Borinquen Ward to Rivera-Rodríguez in order for Rivera-Rodríguez to manufacture crack because the crack “sells alot [sic] and makes alot [sic] of money.” Second, as discussed above, Officer Veguilla-Figueroa testified that when he arrested Arzola-Martinez in 2005, Officer Veguilla-Figueroa seized a firearm from him. Third, also as discussed above, Officer Ortiz-Reyes testified that in 2006 Arzola-Martinez was a passenger in a car in which the police found plastic vials of a substance later shown to contain cocaine. A search of the vehicle conducted in the presence of both Arzola-Martinez and the driver also uncovered in the front glove compartment $468 in cash, which ArzolaMartinez told Officer" }, { "docid": "2232389", "title": "", "text": "and, therefore, he could not purchase supplies in interstate commerce for the restaurant. An FBI agent confirmed Mr. Sun’s statements, testifying that credit card sales declined and business revenues decreased after the robbery. We conclude that the record evidence and the inferences therefrom demonstrated the requisite effect on interstate commerce. Defendant claims that the murder of Mrs. Sun, which was committed during the robbery, should not be considered as proof of the effect of the robbery on interstate commerce. The government may show the effect-on-commerce requirement not only by the effect of stolen money on interstate commerce but also by evidence showing an “interference ‘in any way or degree ’ ... by robbery or extortion.” United States v. Boston, 718 F.2d 1511, 1516 (10th Cir.1983) (further emphasis added) (quoting 18 U.S.C. § 1951(a)), cert. denied, 466 U.S. 974, 104 S.Ct. 2352, 80 L.Ed.2d 825 (1984); cf. United States v. Paredes, 139 F.3d 840, 844-45 (11th Cir.1998) (holding that meager evidence showing use of firearm purchased out of state and victims’ sale of merchandise manufactured out of state was sufficient to demonstrate robbery’s minimal effect on commerce); United States v. Castleberry, 116 F.3d 1384, 1388-89 (11th Cir.) (discussing evidence presented to show effect on commerce of extortion), cert. denied, — U.S. -, 118 S.Ct. 341, 139 L.Ed.2d 265 (1997). Events which occur during the course of a possible Hobbs Act robbery may affect interstate commerce. Consider, for example, if Defendant robbed the Mandarin when it was full of customers and, during the course of that robbery, he threatened and frightened many loyal customers. Perhaps his actions against those customers constituted assault under state law. In this scenario, the customers then testify at trial that they were too frightened to ever return to the restaurant and Mr. Sun testifies that the loss of loyal customers affected his ability to generate income and purchase goods in interstate commerce. Under the language of the Hobbs Act, this hypothetical testimony of the customers and Mr. Sun would be appropriate evidence showing an effect of the robbery on interstate commerce. See 18 U.S.C. § 1951(a). Testimony" }, { "docid": "23646851", "title": "", "text": "924(c) charge on John Jr.’s robbery of Sapochetti in alleged violation of the Hobbs Act. Thus the government had to prove that John Jr. used or carried a firearm, that his use of the firearm was in relation to the robbery, and that he did in fact commit a Hobbs Act robbery. To prove a Hobbs Act robbery, the government had to establish that the Sapochetti robbery “in any way or degree obstructed], delay[ed], or affect[ed] commerce.” 18 U.S.C. § 1951(a). John Jr. argues the government failed to prove this nexus with interstate commerce. “The Hobbs Act’s scope extends to the limit of Congress’ Commerce Clause authority.” United States v. Capozzi (Capozzi I), 347 F.3d 327, 335 (1st Cir.2003). Because of this, and because the Hobbs Act by its terms criminalizes robberies that affect interstate commerce “in any way or degree,” the government need only show that the robbery created “a realistic probability of a de minimis effect on interstate commerce.” Id. (quoting United States v. Butt, 955 F.2d 77, 80 n. 2 (1st Cir.1992)) (internal quotation marks omitted). This required showing is “not onerous.” Capozzi II, 486 F.3d at 726 (quoting United States v. DiGregorio, 605 F.2d 1184, 1191 (1st Cir.1979)) (internal quotation marks omitted). A reasonable jury could have concluded that John Jr. robbed Sapochetti and that the probable effect of that robbery was an impact on interstate commerce, albeit largely illicit commerce. The robbing of a drug dealer typically has the required nexus with interstate commerce. See, e.g., id.; United States v. Parkes, 497 F.3d 220, 231 (2d Cir.2007), cert. denied, — U.S. -, 128 S.Ct. 1320, 170 L.Ed.2d 133 (2008); United States v. Ostrander, 411 F.3d 684, 692 (6th Cir.2005); United States v. Williams, 342 F.3d 350, 355 (4th Cir.2003) (“Drug dealing ... is an inherently economic enterprise that affects interstate commerce.”); United States v. Bailey, 227 F.3d 792, 798-99 (7th Cir.2000); United States v. Box, 50 F.3d 345, 353 (5th Cir.1995). A robbery can affect interstate commerce when it depletes the assets of a business, even if the business is that of drug dealing. See," }, { "docid": "14267197", "title": "", "text": "properly raise this theory below and thus our review is for only “plain error,” United States v. Rivem-Rivera, 555 F.3d 277, 285 & n. 7 (1st Cir.2009). We need not resolve this dispute, because Cabrera-Rivera’s challenge fails under even the less deferential standard of review. The Hobbs Act, under which Cabrera-Rivera was convicted, provides that “[wjhoever in any way or degree obstructs, delays, or affects commerce or the movement of any article or commodity in commerce, by robbery or extortion ... shall be fined ... or imprisoned.... ” 18 U.S.C. § 1951(a) (emphasis added). To prove that a robbery violated the provisions of the Hobbs Act, the government need demonstrate only “a de minimis interference with commerce.” Rivera-Rivera, 555 F.3d at 286 (quotation marks omitted). When a business is the victim of a robbery, an effect on interstate commerce may generally be demonstrated by showing “(1) the business engaged in interstate commerce, and (2) that the robbery either depleted the assets of the business ... or resulted in the business’s temporary or permanent closure.” Id. (citing Rodriguez-Casiano, 425 F.3d at 15, and United States v. Cruz-Rivera, 357 F.3d 10, 14 (1st Cir.2004)). There is no serious question but that Loomis Fargo, a company engaged in the transportation of money “from the Federal Reserve to places of business or vice versa,” was a business engaged in interstate commerce. The evidence presented by the government was also sufficient for the jury to conclude that the robbery depleted Loomis Fargo’s assets. Loomis Fargo assumed the loss of the more than $4,000 taken from its custody during the robbery. Additional testimony established further effects on commerce from the robbery: Loomis Fargo’s operations on the route were disrupted, and other business clients did not receive services that day due to the robbery. Taken as a whole, the government’s evidence of the robbery’s effect on interstate commerce was sufficient to support the jury’s verdict. See Capozzi, 347 F.3d at 335 (government need show only “a realistic probability of a de minimis effect on interstate commerce”)(quotation marks omitted)(citing United States v. Butt, 955 F.2d 77, 80 n." }, { "docid": "3407293", "title": "", "text": "(8th Cir. 2005)). 1. Hobbs Act Robberies A person commits a Hobbs Act robbery if he “in any way or degree obstructs, delays, or affects commerce or the movement of any article or commodity in commerce, by robbery or extortion or attempts or conspires so to do.” 18 U.S.C. § 1951(a). GPS tracking through Chaplain’s ankle bracelet, eye witness testimony, physical evidence, and video surveillance provide overwhelming ‘ evidence to establish Chaplain’s involvement in each robbery, and Chaplain does not explicitly contest this evidence. Chaplain argues only that the\" government failed to show that the robberies affected interstate commerce. We disagree. “Commerce” is defined as commerce within the District of Columbia, or any Territory or Possession of the United States; all commerce be tween any point in a State, Territory, Possession, or the District of Columbia and any point outside thereof; all commence between points within the same State through any place outside such State; and all other commerce over which the United States has jurisdiction. Id. § 1951(b)(3). Commerce has been defined very broadly in caselaw. The statute “in no way exclude[s] prosecutions for ... local robberies, so long as they satisfy the requirement that commerce or the movement of any article or commodity in commerce is obstructed, delayed, or affected.” United States v. Farmer, 73 F.3d 836, 843 (8th Cir. 1996). “When a business that sells goods manufactured outside the state is robbed, interstate commerce is usually sufficiently affected for” Hobbs Act robbery. United States v. Quigley, 53 F.3d 909, 910 (8th Cir. 1995). Where a business is forced to close for a period of time, a court is especially likely to find that the robbery affected interstate commerce. United States v. Mann, 701 F.3d 274, 295 (8th Cir. 2012). In United States v. Davis, 30 F.3d 613 (5th Cir. 1994), the court held that the evidence was sufficient to support a finding of Hobbs Act robbery where the “robberies caused the interruption of commerce in all four gas stations dealing in out-of-state goods, resulting from their temporary closure.” Id. at 615. The commerce element is also satisfied" }, { "docid": "2012061", "title": "", "text": "government, to support the conviction.” United States v. Jaensch, 665 F.3d 83, 93 (4th Cir.2011) (quotation marks omitted). “ ‘[Substantial evidence is evidence that a reasonable finder of fact could accept-as adequate and sufficient to support a conclusion of a defendant’s guilt beyond a reasonable doubt.’ ” Id. (alteration in original) (quoting United States v. Burgos, 94 F.3d 849, 862 (4th Cir.1996) (en banc)). “In determining whether the evidence was sufficient to support a conviction, a reviewing court must determine whether ‘any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt.’ ” United States v. Madrigal-Valadez, 561 F.3d 370, 374 (4th Cir.2009) (quoting Jackson v. Virginia, 443 U.S. 307, 319, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979)). As we have emphasized, in sufficiency challenges our focus “is the complete picture that the evi dence presents.” Burgos, 94 F.3d at 863. We thus consider the evidence “in cumulative context” rather than “in a piecemeal fashion[.]” Id. Defendants were convicted of two counts relating to P & S Coins. The first was robbery in violation of the Hobbs Act. “A Hobbs Act violation requires proof of two elements: (1) the underlying robbery or extortion crime, and (2) an effect on interstate commerce.” United States v. Williams, 342 F,3d 350, 353 (4th Cir.2003). The Hobbs Act defines robbery as “the unlawful taking or obtaining of personal property from the person ... by means of actual or threatened force, or violence, or fear of injury, ... to his person or property ... at the time of the taking or obtaining.” 18 U.S.C. § 1951(b)(1). The second P & S Coins-related count was for using, by brandishing, a firearm in violation of 18 U.S.C. § 924(c)(1). To successfully prosecute that crime, the government “must show two elements: (1) the defendant used or carried a firearm, and (2) the defendant did so during and in relation to a drug trafficking offense or crime of violence.” United States v. Mitchell, 104 F.3d 649, 652 (4th Cir.1997). We must first determine whether the government presented sufficient evidence to support Janson" }, { "docid": "4836307", "title": "", "text": "the Third Circuit model jury instruction on the element of “affecting interstate commerce” required for a Hobbs Act conviction. The jury convicted Powell on all five counts. The District Court sentenced Powell to 697 months’ imprisonment, with five years’ supervised release, restitution of $20,762.55, and a special assessment of $500. Powell timely appealed. II. On appeal, Powell challenges the sufficiency of the evidence to satisfy the effect on interstate commerce element required for conviction under the Hobbs Act, as well as the jury instructions on this element. These challenges raise a similar issue: namely, whether the robbery of an individual in her home requires proof of a more substantial connection to interstate commerce than a robbery committed at a place of business. A. The Hobbs Act provides “[wjhoever in any way or degree obstructs, delays, or affects commerce or the movement of any article or commodity in commerce, by robbery or extortion or attempts or conspires so to do ... shall be fined under this title or imprisoned not more than twenty years, or both.” 18 U.S.C. § 1951(a). The statute defines commerce as “all commerce between any point in a State, Territory, Possession, or the District of Columbia and any point outside thereof; all commerce between points within the same State through any place outside such State; and all other commerce over which the United States has jurisdiction.” Id. § 1951(b)(3). We have held that a conviction under the Hobbs Act requires proof beyond a reasonable doubt that (1) the defendant knowingly or willfully committed, or attempted or conspired to commit, robbery or extortion, and (2) the defendant’s conduct affected interstate commerce. United States v. Walker, 657 F.3d 160, 178-79 (3d Cir. 2011); United States v. Driggs, 823 F.2d 52, 54 (3d Cir.1987). Powell challenges the sufficiency of the evidence with respect to the effect on interstate commerce element. The Hobbs Act was passed as an amendment to the Anti-Racketeering Act of 1934, ch. 569, 48 Stat. 979. The original Act was targeted at extortion by organized crime against store owners and truck drivers. S.Rep. No. 75-1189, at 23-24" }, { "docid": "11407203", "title": "", "text": "Zeigler’s sixth and final robbery occurred on September 16 when he entered Rex’s Fried Chicken Restaurant carrying a gun, ordered all the employees to sit on the floor behind the counter, and absconded with over $1500 from two separate cash registers. All the chicken sold by the Rex’s chain, including the restaurant Mr. Zeigler robbed, is purchased from Bingham Foods located in Springfield, Missouri. Rex’s also purchases breading formula, onion rings, and honey from sources outside Oklahoma. The owner of Rex’s restaurants stated that the $1500 Mr. Zeigler took would have been used to buy more chicken, to pay bills, employees, rent, utilities, and taxes, and that the robbery had a direct impact on the bottom line of the business. On cross-examination, Rex’s owner testified that she purchased “about the same” amount of out-of-state goods in the month following the robbery as she did in September, the month of the robbery. She also testified that she was probably not late paying her September bill for out-of-state goods for the robbed restaurant because she is able to draw money from other restaurants if needed to pay bills. II. FEDERAL JURISDICTION UNDER THE HOBBS ACT Having been convicted on all six counts, Mr. Zeigler now challenges the sufficiency of the evidence to support federal jurisdiction over any of these counts under the Hobbs Act. He contends the government failed to prove the robberies had any effect on interstate commerce. The Hobbs Act provides for the punishment of anyone who “in any way or degree obstructs, delays, or affects commerce or the movement of any article or commodity in commerce, by robbery or extortion or attempts or conspires so to do.” 18 U.S.C. § 1951(a) (1988) (emphasis added). The statute broadly defines the term “commerce” to encompass “all commerce between any point in a State, ... and any point outside thereof; ... and all other commerce over which the United States has jurisdiction.” ' Id. § 1951(b)(3). Hobbs Act jurisdiction is based on Congress’ broad authority to regulate interstate commerce. As the Supreme Court noted in Stirone v. United States, 361 U.S. 212," } ]

[ { "docid": "15884044", "title": "", "text": "in collecting a debt. The FDCPA provides that the term “debt collector” means: any person who uses any instrumentality of interstate commerce or the mails in any business the principal purpose of which is the collection of any debts, or who regularly collects or attempts to collect, directly or indirectly, debts owed or due or asserted to be owed or due another. 15 U.S.C.A. § 1692a(6) (West Supp.1989). The statute places limits on the term “debt collector” by providing that “[t]he term does not include” and thereafter listing six classes of debt collectors not covered by the FDCPA. Id. Repossession agencies are not included among the six excluded classes. Nevertheless, the FDCPA refers to those who enforce security interests, such as repossession agencies, in the same section of the statute which defines “debt collector”. For the purpose of section 1692f(6) of this title, [“debt collector”] also includes any person who uses any instrumentality of interstate commerce or the mails in any business the principal purpose of which is the enforcement of security interests. § 1692a(6). The defendants argue that the plain meaning of the statute indicates that the FDCPA includes an enforcer of a security interest for only one section of the FDCPA, § 1692f(6). Jordan contests this interpretation by arguing that this section merely adds an enforcer of a security interest to the FDCPA’s coverage. She argues that the failure of Congress, both in the statute and the legislative history, to exclude repossession agencies as a class, such as Congress did for the six excluded classes of debt collectors, implies repossession agencies are included within the ambit of the statute for all purposes. The Court finds Jordan’s argument unpersuasive. It is the Court’s “duty, under established principles of statutory construction, to give effect, if possible, to every clause and word of a statute.” Bell v. United States, 754 F.2d 490, 498-499 (3d Cir.1985). Section 1692a(6) indicates that the term “debt collector” also includes an enforcer of a security interest for purposes of § 1692f(6). Such a purposeful inclusion for one section of the FDCPA implies that the term “debt" } ]

[ { "docid": "16567614", "title": "", "text": "title, such term also includes any person who uses any instrumentality of interstate commerce or the mails in any business the principal purpose of which is the enforcement of security interests.” 15 U.S.C.A. § 1692a(6). According to Defendants, because they are engaged in a business “the principal purpose of which is the enforcement of security interests,” they can only be a “debt collector” under the one section expressly provided, 15 U.S.C.A. § 1692f(6). Because Wilson alleged no violation of § 1692f(6), Defendants argue that they cannot be liable under the Act. We disagree. This provision applies to those whose only role in the debt collection process is the enforcement of a security interest. See Jordan v. Kent Recovery Servs., Inc., 731 F.Supp. 652, 657 (D.Del. 1990)(“It thus appears that Congress intended an enforcer of a security interest, such as a repossession agency, to fall outside the ambit of the FDCPA except for the provisions of § 1692f(6).”). In other words, this provision is not an exception to the definition of debt collector, it is an inclusion to the term debt collector. It serves to include as debt collectors, for the purposes of § 1692f(6), those who only enforce security interests. It does not exclude those who enforce security interests but who also fall under the general definition of “debt collector.” See Piper, 396 F.3d at 236 (“Section 1692a(6) thus recognizes that there are people who engage in the business of repossessing property, whose business does not primarily involve communicating with debtors in an effort to secure payment of debts.”). Thus, if Defendants meet the statutory definition of “debt collector,” they can be covered by all sections of the Act, not just § 1692f(6), regardless of whether they also enforce security interests. III. The district court incorrectly concluded that Defendants could not be held liable under the Act. We hold that Defendants’ foreclosure action was an attempt to collect a “debt,” Defendants are not excluded from the definition of “debt collector” under 15 U.S.C.A. § 1692a(6)(F)(i) merely because they were acting as trustees foreclosing on a property pursuant to a deed" }, { "docid": "6187776", "title": "", "text": "enforcement. Id. In Rosado, the court stated that “[t]he most frequently cited case attributes the different treatment of security interests and debts to the target’s ability to comply with the request made of her.” Id. (citing Jordan v. Kent Recovery Serv., Inc., 731 F.Supp. 652, 656 (D.Del.1990)). “One receiving debt collection letters may agonize that she cannot comply with them, hence she needs the Act’s protection. One asked to comply with a security interest enforcement request, on the other hand, has the security that she can return.” Id. at 924-25. Also, in Hulse v. Ocwen Federal Bank, FSB, 195 F.Supp.2d 1188 (D.Or.2002), the court articulated the distinction between foreclosing a trust deed from the collection of funds from a debtor on the basis that “with a trust deed, the trustee possesses the power of sale which may be exercised after a breach of the obligation for which the transfer in trust of the interest in real property is security.” Id. at 1204. The Hulse court held that actions taken by attorneys “as part of the foreclosure may not be challenged as FDCPA violations.” Id. at 1210. Most courts recognize that there is a provision in the FDCPA, 15 U.S.C. § 1692f(6), which applies to the enforcement of security interests. The Sixth Circuit has recognized that “except for purposes of § 1692f(6), an enforcer of a security interest ... does not meet the statutory definition of a debt collector under the FDCPA.” Montgomery v. Huntington Bank, 346 F.3d 693, 700-01 (6th Cir.2003). But, in Kaltenbach v. Richards, the Fifth Circuit held that “a party who satisfies § 1692a(6)’s general definition of a ‘debt collector’ is a debt collector for the purposes of the entire FDCPA even when enforcing a security interests.” Kaltenbach v. Richards, 464 F.3d 524, 529 (5th Cir.2006). Therefore, some courts engage in a discussion of whether the party at issue qualifies as a debt collector under the general debt collector provision even if the party is only enforcing a security interest. Under the FDCPA, a debt collector is defined as: any person who uses any instrumentality of interstate" }, { "docid": "16567615", "title": "", "text": "inclusion to the term debt collector. It serves to include as debt collectors, for the purposes of § 1692f(6), those who only enforce security interests. It does not exclude those who enforce security interests but who also fall under the general definition of “debt collector.” See Piper, 396 F.3d at 236 (“Section 1692a(6) thus recognizes that there are people who engage in the business of repossessing property, whose business does not primarily involve communicating with debtors in an effort to secure payment of debts.”). Thus, if Defendants meet the statutory definition of “debt collector,” they can be covered by all sections of the Act, not just § 1692f(6), regardless of whether they also enforce security interests. III. The district court incorrectly concluded that Defendants could not be held liable under the Act. We hold that Defendants’ foreclosure action was an attempt to collect a “debt,” Defendants are not excluded from the definition of “debt collector” under 15 U.S.C.A. § 1692a(6)(F)(i) merely because they were acting as trustees foreclosing on a property pursuant to a deed of trust, and Defendants can still be “debt collectors” even if they were also enforcing a security interest. As a result, we reverse and remand. On remand, Wilson can show that Defendants meet the definition of “debt collector” by demonstrating that they use “any instrumentality of interstate commerce or the mails in any business the principal purpose of which is the collection of any debts, or ... regularly collect[ ] or attemptf ] to collect, directly or indirectly, debts owed or due or asserted to be owed or due another.” 15 U.S.C.A. § 1692a(6); see also Heintz, 514 U.S. at 294, 115 S.Ct. 1489 (“[A] lawyer who regularly tries to obtain payment of consumer debts through legal proceedings is a lawyer who regularly ‘attempts’ to ‘collect’ those consumer debts.”); Crossley, 868 F.2d at 569-70 (relying on volume of attorney’s mortgage foreclosure actions to show he was a debt collector); Shapiro, 823 P.2d at 124 (“Since a foreclosure is a method of collecting a debt by acquiring and selling secured property to satisfy a debt, those" }, { "docid": "23523220", "title": "", "text": "1692f(6) of this title, such term also includes any person who uses any instrumentality of interstate commerce or the mails in any business the principal purpose of which is the enforcement of security interests.” 15 U.S.C. § 1692a(6). One who satisfies the first sentence is a debt collector for all sections of the Act, but one satisfying only the third sentence is a “debt collector” limited to § 1692f(6) (concerning non-judicial repossession abuses). See Kaltenbach, 464 F.3d at 528; Montgomery, 346 F.3d at 699-701. Therefore, these courts reason, “if the enforcement of a security interest was synonymous with debt collection, the third sentence would be surplusage because any business with a principal purpose of enforcing security interests would also have the principal purpose of collecting debts.” Gray v. Four Oak Court Ass’n, Inc., 580 F.Supp.2d 883, 888 (D.Minn.2008). To avoid this result, these courts conclude that the enforcement of a security interest, including mortgage foreclosure, cannot be debt collection. Id. We reject this reading of the statute. The third sentence in the definition does not except from debt collection the enforcement of security interests; it simply “make[s] clear that some persons who would be without the scope of the general definition are to be included where § 1692f(6) is concerned.” Piper, 396 F.3d at 236; see Shapiro & Meinhold, 823 P.2d at 124. It operates to include certain persons under the Act (though for a limited purpose); it does not exclude from the Act’s coverage a method commonly used to collect a debt. As the Third Circuit explained in Piper, [e]ven though a person whose business does not primarily involve the collection of debts would not be a debt collector for purposes of the Act generally, if his principal business is the enforcement of security interests, he must comply with the provisions of the Act dealing with non-judicial repossession abuses. Section 1692a(6) thus recognizes that there are people who engage in the business of repossessing property, whose business does not primarily involve communicating with debtors in an effort to secure payment of debts. Piper, 396 F.3d at 236. And, in" }, { "docid": "15647274", "title": "", "text": "the repossession and makes no argument that it was not a valid agreement, (Compl. ¶ 12.) Furthermore, Plaintiff cannot locate a copy of the contract. (PL’s Resp. to Def.’s Mot. to Dismiss Compl. at 1.) In light of the liberal notice pleading standards embodied in Rule (8)(a), the Court finds that Plaintiff has sufficiently alleged facts to place Defendant CAC on notice of the RISC such that it can reasonably respond. We may now proceed in evaluating Defendant CAC’s additional contentions. B. Failure to State a Claim Pursuant to Federal Rule of Civil Procedure 12(b)(6) 1. Violations of the Fair Debt Collection Practices Act Defendant CAC argues that Count I of Plaintiffs Complaint regarding violations of the FDCPA, 15 U.S.C. § 1692, et seq. should be dismissed under Rule 12(b)(6) for several reasons including: (1) a repossession agency is not a “debt collector” for FDCPA purposes; (2) Plaintiff admitted she defaulted on her loan; therefore, Defendant CAC had a right of possession and did not violate § 1692f(6)(A) of the FDCPA as a matter of law; (3) and no facts were pleaded that support a finding under § 1692f(6)(B), § 1692f(6)(C), or § 1692d. (Def.’s Mot. to Dismiss Compl. at 4-6.) We do find that a repossession agency is a “debt collector” for FDCPA purposes, but it is only subject to § 1692(f)(6) and not the remaining provisions of the statute. Under the FDCPA, “[f]or the purpose of section 1692f(6) of this title, such term [debt collector] also includes any person who uses any instrumentality of interstate commerce or the mails in any business the principal purpose of which is the enforcement of security interests.” 15 U.S.C. § 1692a(6). The statute then goes on to list what the term debt collector does not .include for purposes of the FDCPA, Id, The six classes of excluded debt collectors listed did not specifically state repossession agencies. Id. The Third Circuit has interpreted § 1692a(6) to mean that repossession agencies are subject to the FDCPA, but only for § 1692f(6) and not the remaining provisions of the statute. See Piper v. Portnoff Law" }, { "docid": "19868974", "title": "", "text": "interest are “debt collectors” for purposes of Section 1692f(6) only or whether enforcers of security interest should be considered “debt collectors” under the general definition of Section 1692a(6) and thereby subject to the entire FDCPA. See Chomilo v. Shapiro, Nordmeyer & Zielke, LLP, Civ. No. 06-3103(RHK/AJB), 2007 WL 2695795, at *3 (D.Minn. Sept. 12, 2007) (acknowledging split of authority and citing cases). The Second Circuit has not yet addressed this question and so this is a matter of first impression before this Court. Under Section 1692a, “debt collector” is defined as “any person who uses any instrumentality of interstate commerce or the mails in any business the principal purpose of which is the collection of any debts, or who regularly collects or attempts to collect, directly or indirectly, debts owed or due or asserted to be owed or due another.” § 1692a(6). In addition, Section 1692a(6) “places limits’ on the term ‘debt collector’ by providing that ‘[t]he term does not include’ six specific classes of debt collectors. Law firms who initiate foreclosures of mortgages on real property are not included among the six excluded classes.” Chomilo, 2007 WL 2695795, at *3 (quoting § 1692a(6)) (emphasis in the original). Lastly, Section 1692a(6) states that “for the purpose of section 1692f(6) of this title, such term also includes any person who uses any instrumentality of interstate commerce or the mails in any business the principal purpose of which is the enforcement of security interests.” § 1692a(6) (emphasis added). Since Section 1692a(6) expressly includes enforcers of security interests only in reference to Section 1692f(6), courts have held that an enforcer of security interest is therefore not a debt collector for purposes of the other sections of the FDCPA. The Eleventh Circuit recently addressed this issue and reasoned that since “the statute specifically says that a person in the business of enforcing security interests is a ‘debt collector’ for the purposes of § 1692f(6)” that “reasonably suggests that such a person is not a debt collector for purposes of the other sections of the Act.” Warren v. Countrywide Home Loans, Inc., 342 Fed.Appx. 458," }, { "docid": "19868975", "title": "", "text": "real property are not included among the six excluded classes.” Chomilo, 2007 WL 2695795, at *3 (quoting § 1692a(6)) (emphasis in the original). Lastly, Section 1692a(6) states that “for the purpose of section 1692f(6) of this title, such term also includes any person who uses any instrumentality of interstate commerce or the mails in any business the principal purpose of which is the enforcement of security interests.” § 1692a(6) (emphasis added). Since Section 1692a(6) expressly includes enforcers of security interests only in reference to Section 1692f(6), courts have held that an enforcer of security interest is therefore not a debt collector for purposes of the other sections of the FDCPA. The Eleventh Circuit recently addressed this issue and reasoned that since “the statute specifically says that a person in the business of enforcing security interests is a ‘debt collector’ for the purposes of § 1692f(6)” that “reasonably suggests that such a person is not a debt collector for purposes of the other sections of the Act.” Warren v. Countrywide Home Loans, Inc., 342 Fed.Appx. 458, 460 (11th Cir.2009). The Eleventh Circuit explained that this conclusion was in line with the interpretive cannon of “expressio unius est exclusion alterius, which provides that the expression of one thing implies the exclusion of another.” Id. (internal quotation marks and citation omitted). The Sixth Circuit came to the same conclusion that the purposeful inclusion of enforcers of security interests for one section of the FDCPA implies that the term debt collector does not include an enforcer of security interests for any other sections of the FDCPA. Montgomery v. Huntington Bank, 346 F.3d 693, 700-701 (6th Cir.2003). The Sixth Circuit’s decision in Montgomery adopted the reasoning of Jordan v. Kent Recovery Servs., Inc., 731 F.Supp. 652, 656 (D.Del.1990). In Jordan, the court examined the plain meaning of the FDCPA, canons of statutory construction, and relevant legislative history in coming to its conclusion that although Congress included within the definition of “debt collectors” those who enforce security interests, it limited that definition to the provisions of Section 1692f(6). Id. at 657. The Jordan court explained that" }, { "docid": "7657850", "title": "", "text": "and Lender’s successors and assigns when it is permitted by the Deed of Trust.... [W]e do not interpret the statute as preventing, implying, or somehow indicating that the original parties to the Note and Deed of Trust cannot validly contract at the outset to have someone other than the beneficial owner of the debt act on behalf of that owner to enforce rights granted in the security instrument.... Commonwealth Prop. Advocates, 263 P.3d at 403 (citing Utah Code Ann. § 57-1-35) (internal quotation marks and alterations omitted). Deferring to the state court decision, we concluded that even assuming securitization had “deprive[d] Defendants of their implicit power to foreclose as holders of the trust deeds, the trust deeds explicitly granted Defendants the authority to foreclose.” Commonwealth, 680 F.3d at 1204-05. As in Commonwealth, the trust deed here explicitly allowed MERS to foreclose on Ms. Burnett’s property. Accordingly, Mr. Woodall, as MERS’s assignee, was also so authorized. Because he thereby had a present right to possession of the property, Mr. Woodall did not violate § 1692f(6)(A) of the FDCPA by initiating nonjudicial foreclosure proceedings. See 15 U.S.C. § 1692f(6)(A). 2. Sections 1692e and 1692g Outside of the limited context of § 1692f(6)(A), the FDCPA defines a “debt collector” to include “any person ... who regularly collects or attempts to collect ... debts owed or due or asserted to be owed or due another.” 15 U.S.C. § 1692a(6) (emphasis added). Ms. Burnett alleges, with no specifics, that Mr. Woodall regularly collects debts in addition to enforcing security interests. See Kaltenbach, 464 F.3d at 529 (a person who satisfies § 1692a(6)’s general definition by regularly collecting debts owed to another is a “debt collector” subject to the entire FDCPA, even when enforcing a security interest). Ms. Burnett contends her complaint sets forth sufficient allegations to establish that Mr. Woodall violated §§ 1692e and 1692g of the FDCPA in connection with the foreclosure. Section 1692e prohibits a “debt collector” from using “any false, deceptive, or misleading representation or means in connection with the collection of any debt.” 15 U.S.C. § 1692e (emphasis added). Section 1692g" }, { "docid": "7657851", "title": "", "text": "the FDCPA by initiating nonjudicial foreclosure proceedings. See 15 U.S.C. § 1692f(6)(A). 2. Sections 1692e and 1692g Outside of the limited context of § 1692f(6)(A), the FDCPA defines a “debt collector” to include “any person ... who regularly collects or attempts to collect ... debts owed or due or asserted to be owed or due another.” 15 U.S.C. § 1692a(6) (emphasis added). Ms. Burnett alleges, with no specifics, that Mr. Woodall regularly collects debts in addition to enforcing security interests. See Kaltenbach, 464 F.3d at 529 (a person who satisfies § 1692a(6)’s general definition by regularly collecting debts owed to another is a “debt collector” subject to the entire FDCPA, even when enforcing a security interest). Ms. Burnett contends her complaint sets forth sufficient allegations to establish that Mr. Woodall violated §§ 1692e and 1692g of the FDCPA in connection with the foreclosure. Section 1692e prohibits a “debt collector” from using “any false, deceptive, or misleading representation or means in connection with the collection of any debt.” 15 U.S.C. § 1692e (emphasis added). Section 1692g requires that “[wjithin five days after the initial communication with a consumer in connection with the collection of any debt, a debt collector shall ... send the consumer a written notice containing” certain information about the debt, including the amount of the debt and to whom the debt is owed. 15 U.S.C. § 1692g(a) (emphasis added). Thus, to adequately state a claim, Ms. Burnett’s complaint must allege sufficient facts to plausibly suggest that Mr. Woodall is a debt collector whose efforts to collect a debt from Ms. Burnett, a consumer, violated these provisions of the FDCPA. The parties disagree about whether Ms. Burnett’s complaint adequately alleges that Mr. Woodall is a “debt collector” who acted “in connection with the collection of a debt” for purposes of the FDCPA. We have not yet decided whether a nonjudicial foreclosure may itself qualify as debt collection under these provisions of the FDCPA. Cases from other circuits have analyzed this issue in varying fashions, as we described in Maynard v. Cannon, 401 Fed.Appx. 389, 395-96 (10th Cir. 2010) (unpublished)." }, { "docid": "16567613", "title": "", "text": "coverage, but Congress amended the Act in 1986 “to provide that any attorney who collects debts on behalf of a client shall be subject to the provisions of [the] Act.” Pub.L. No. 99-361, 100 Stat. 768 (codified at 15 U.S.C.A. 1692a); see also Carroll v. Wolpoff & Abramson, 961 F.2d 459, 461 (4th Cir. 1992) (discussing repeal of the attorney exemption). If the principal purpose of a lawyer’s work is the collection of debts, he is a “debt collector” under the Act. See Scott v. Jones, 964 F.2d 314, 316-17 (4th Cir.1992). Thus, Defendants cannot benefit from § 1692a(6)(F)(i)’s exception to the definition of “debt collector” merely because they were trustees foreclosing on a property pursuant to a deed of trust. C. Defendants also allege that they cannot be held liable as charged in the complaint because Wilson has only alleged violations of portions of the Act that do not apply to them. They refer to a portion of the definition of “debt collector” that states, “[f]or the purpose of section § 1692f(6) of this title, such term also includes any person who uses any instrumentality of interstate commerce or the mails in any business the principal purpose of which is the enforcement of security interests.” 15 U.S.C.A. § 1692a(6). According to Defendants, because they are engaged in a business “the principal purpose of which is the enforcement of security interests,” they can only be a “debt collector” under the one section expressly provided, 15 U.S.C.A. § 1692f(6). Because Wilson alleged no violation of § 1692f(6), Defendants argue that they cannot be liable under the Act. We disagree. This provision applies to those whose only role in the debt collection process is the enforcement of a security interest. See Jordan v. Kent Recovery Servs., Inc., 731 F.Supp. 652, 657 (D.Del. 1990)(“It thus appears that Congress intended an enforcer of a security interest, such as a repossession agency, to fall outside the ambit of the FDCPA except for the provisions of § 1692f(6).”). In other words, this provision is not an exception to the definition of debt collector, it is an" }, { "docid": "9479781", "title": "", "text": "uses any instrumentality of interstate commerce or the mails in any business the principal purpose of which is the enforcement of security interests.” Section 1692f(6) provides: A debt collector may not use unfair or unconscionable means to collect or attempt to collect any debt. Without limiting the general application of the foregoing, the following conduct is a vio- ■ lation of this section: ... (6) Taking or threatening to take any nonjudicial action to effect dispossession or disablement of property if - (A) there is no present right to possession of the property claimed as collateral through an enforceable security interest; (B) there is no present intention to take possession of the property; or (C) the property is exempt by law from such dispossession or disablement. 15 U.S.C. § 1692f(6). PLA suggests that § 1692a(6), by making all persons in the business of enforcing security interests debt collectors for the purposes of one subsection of the Act, reflects a Congressional intent that such debt collectors be immune from all of the other provisions of the Act even if they would otherwise come within the general definition of “debt collector.” We disagree. The portion of § 1692a(6) upon which PLA relies is not among the six listed exceptions to the general definition. It is cast in terms of inclusion, and we believe it was intended to make clear that some persons who would be without the scope of the general definition are to be included where § 1692f(6) is concerned. Even though a person whose business does not primarily involve the collection of debts would not be a debt collector for purposes of the Act generally, if his principal business is the enforcement of security interests, he must comply with the provisions of the Act dealing with non-judicial repossession abuses. Section 1692a(6) thus recognizes that there are people who engage in the business of repossessing property, whose business does not primarily involve communicating with debtors in an effort to secure payment of debts. Just such a person was involved in Jordan v. Kent Recovery Services, 731 F.Supp. 652 (D.Del.1990), where an" }, { "docid": "6187777", "title": "", "text": "foreclosure may not be challenged as FDCPA violations.” Id. at 1210. Most courts recognize that there is a provision in the FDCPA, 15 U.S.C. § 1692f(6), which applies to the enforcement of security interests. The Sixth Circuit has recognized that “except for purposes of § 1692f(6), an enforcer of a security interest ... does not meet the statutory definition of a debt collector under the FDCPA.” Montgomery v. Huntington Bank, 346 F.3d 693, 700-01 (6th Cir.2003). But, in Kaltenbach v. Richards, the Fifth Circuit held that “a party who satisfies § 1692a(6)’s general definition of a ‘debt collector’ is a debt collector for the purposes of the entire FDCPA even when enforcing a security interests.” Kaltenbach v. Richards, 464 F.3d 524, 529 (5th Cir.2006). Therefore, some courts engage in a discussion of whether the party at issue qualifies as a debt collector under the general debt collector provision even if the party is only enforcing a security interest. Under the FDCPA, a debt collector is defined as: any person who uses any instrumentality of interstate commerce or the mails in any business the principal purpose of which is the collection of any debts, or who regularly collects or attempts to collect, directly or indirectly, debts owed or due or asserted to be owed or due another.... For the purpose of section 1692f(6) of this title, such term also includes any person who uses any instrumentality of interstate commerce or the mails in any business the principal purpose of which is the enforcement of security interests. 15 U.S.C. § 1692a(6). There is no evidence in this case that Defendant falls within the general provisions of the definition of debt collector. There is no evidence as to the frequency of Defendant’s security enforcement or debt collection practices. In this case, Household hired Defendant for the limited purpose of non-judicially foreclosing the Deed of Trust. Household did not sell or assign or even transfer to Defendant the debt evidenced by the Note. Nor did Household authorize Defendant to negotiate Maynard’s debt with her. Household and Maynard communicated directly even after Defendant filed the" }, { "docid": "15647275", "title": "", "text": "law; (3) and no facts were pleaded that support a finding under § 1692f(6)(B), § 1692f(6)(C), or § 1692d. (Def.’s Mot. to Dismiss Compl. at 4-6.) We do find that a repossession agency is a “debt collector” for FDCPA purposes, but it is only subject to § 1692(f)(6) and not the remaining provisions of the statute. Under the FDCPA, “[f]or the purpose of section 1692f(6) of this title, such term [debt collector] also includes any person who uses any instrumentality of interstate commerce or the mails in any business the principal purpose of which is the enforcement of security interests.” 15 U.S.C. § 1692a(6). The statute then goes on to list what the term debt collector does not .include for purposes of the FDCPA, Id, The six classes of excluded debt collectors listed did not specifically state repossession agencies. Id. The Third Circuit has interpreted § 1692a(6) to mean that repossession agencies are subject to the FDCPA, but only for § 1692f(6) and not the remaining provisions of the statute. See Piper v. Portnoff Law Assocs., Ltd., 396 F.3d 227 (3d Cir.2005) (“[E]ven though a person whose business does not primarily involve the collection of debts would not be a debt collector for purposes of the Act generally, if his principal business is the enforcement of security interests, he must comply with the provisions of the Act dealing with nonjudicial repossession abuses.”) Specifically, courts have held that an “automobile repossession business was... subject to § 1692f(6), but not the remaining provisions of the FDCPA.” Id. (citing Jordan v. Kent Recovery Services, 731 F. Supp. 652 (D.Del.1990)). Even though Plaintiff alleges violations under § 1692d, she cites to case-law concluding that this section would not be applicable to repossession agencies. (Pl.’s Resp. to Def.’s Mot. to Dismiss Compl. at 6-7.) Most notably, Plaintiff cites a Third Circuit case that found “[t]he FDCPA explicitly provides that ‘any person who uses any instrumentality of interstate commerce or the mails in any business the principal purpose of which is the enforcement of security interests’ may be held liable under § 1692f(6) of the FDCPA.”" }, { "docid": "23523219", "title": "", "text": "uses foreclosure instead of other methods,” the court held that the firm’s “foreclosure action was an attempt to collect a ‘debt.’ ” Id. at 376, 378. Piper and (especially) Wilson fully support our holding that mortgage foreclosure is debt collection under the Act. C. Courts that hold that mortgage foreclosure is not debt collection offer different reasons for this view. Some reason that the FDCPA is concerned only with preventing abuse in the process of collecting funds from a debtor, and that foreclosure is distinct from this process because “payment of funds is not the object of the foreclosure action.” Hulse, 195 F.Supp.2d at 1204. We disagree. There can be no serious doubt that the ultimate purpose of foreclosure is the payment of money. Some courts that hold mortgage foreclosure to be outside the Act rely principally on the definition of “debt collector.” After defining a “debt collector” as one whose principal business purpose is the “collection of any debts” or who “regularly” collect debts, the definition’s third sentence states: “For the purpose of section 1692f(6) of this title, such term also includes any person who uses any instrumentality of interstate commerce or the mails in any business the principal purpose of which is the enforcement of security interests.” 15 U.S.C. § 1692a(6). One who satisfies the first sentence is a debt collector for all sections of the Act, but one satisfying only the third sentence is a “debt collector” limited to § 1692f(6) (concerning non-judicial repossession abuses). See Kaltenbach, 464 F.3d at 528; Montgomery, 346 F.3d at 699-701. Therefore, these courts reason, “if the enforcement of a security interest was synonymous with debt collection, the third sentence would be surplusage because any business with a principal purpose of enforcing security interests would also have the principal purpose of collecting debts.” Gray v. Four Oak Court Ass’n, Inc., 580 F.Supp.2d 883, 888 (D.Minn.2008). To avoid this result, these courts conclude that the enforcement of a security interest, including mortgage foreclosure, cannot be debt collection. Id. We reject this reading of the statute. The third sentence in the definition does not" }, { "docid": "7657845", "title": "", "text": "property in violation of § 1692f(6)(A), (2) by making false representations in an attempt to collect a debt in violation of § 1692e, and (3) by failing to give her required notices in connection with an attempt to collect a debt in violation of § 1692g(a). 1. Section 1692f(6) (A) The FDCPA prohibits a “debt collector” from “[t]aking or threatening to take any nonjudicial action to effect dispossession or disablement of property if ... there is no present right to possession of the property claimed as collateral through an enforceable security interest.” 15 U.S.C. § 1692f(6)(A). The Act defines a “debt collector” as: any person who uses any instrumentality of interstate commerce or the mails in any business the principal purpose of which is the collection of any debts, or who regularly collects or attempts to collect, directly or indirectly, debts owed or due or asserted to be owed or due another.... For the purpose of section 1692f(6) of this title, such term also includes any person who uses any instrumentality of interstate commerce or the mails in any business the principal purpose of which is the enforcement of security interests. Id. § 1692a(6) (emphasis added). “By the plain language of the statute, therefore, a person whose business has the principal purpose of enforcing security interests but who does not otherwise satisfy the definition of a debt collector is subject only to [15 U.S.C.] § 1692f(6).” Kaltenbach v. Richards, 464 F.3d 524, 527 (5th Cir.2006). By its terms, § 1692f(6)(A) applies to trustees performing nonjudicial foreclosures. Mr. Woodall does not deny that he qualifies as a “debt collector” under § 1692f(6)(A), but he denies that Ms. Burnett’s complaint properly alleges he violated that section. The district court agreed and held that Mr. Woodall did not violate § 1692f(6)(A) because MERS was authorized under the trust deed to initiate foreclosure proceedings and to appoint Mr. Woodall as successor trustee to carry out the foreclosure when Ms. Burnett defaulted on her debt. Ms. Burnett seems to have several theories for why Mr. Woodall and the other defendants violated this provision of the" }, { "docid": "19868973", "title": "", "text": "in the foreclosure action. See Bank of America v. Derisme, Docket No. FBT-CV096003691-S. Since Hunt Leibert has not initiated deficiency proceedings under Connecticut’s statutory regime the foreclosure action is solely an action in equity seeking the remedy of foreclosure and was never converted into an action at law seeking money damages. Therefore Hunt Leibert has sought only to enforce its client’s security interest in the foreclosure action and has not yet sought a money judgment. At most, Hunt Leibert has preserved its client’s ability to seek a deficiency judgment at a later time by including the claim in the complaint. However, since Hunt Leibert has not initiated deficiency proceedings pursuant to § 49-14 on its client’s behalf, it has not attempted to collect a debt in connection with the foreclosure action but instead has only sought to enforce its client’s security interest. b. An enforcer of a security interest falls outside the scope of the FDCPA except for the provisions of Section 1692f(6) There is a split of authority as to whether enforcers of security interest are “debt collectors” for purposes of Section 1692f(6) only or whether enforcers of security interest should be considered “debt collectors” under the general definition of Section 1692a(6) and thereby subject to the entire FDCPA. See Chomilo v. Shapiro, Nordmeyer & Zielke, LLP, Civ. No. 06-3103(RHK/AJB), 2007 WL 2695795, at *3 (D.Minn. Sept. 12, 2007) (acknowledging split of authority and citing cases). The Second Circuit has not yet addressed this question and so this is a matter of first impression before this Court. Under Section 1692a, “debt collector” is defined as “any person who uses any instrumentality of interstate commerce or the mails in any business the principal purpose of which is the collection of any debts, or who regularly collects or attempts to collect, directly or indirectly, debts owed or due or asserted to be owed or due another.” § 1692a(6). In addition, Section 1692a(6) “places limits’ on the term ‘debt collector’ by providing that ‘[t]he term does not include’ six specific classes of debt collectors. Law firms who initiate foreclosures of mortgages on" }, { "docid": "16192937", "title": "", "text": "collection practices by debt collectors, to insure that those debt collectors who refrain from using abusive debt collection practices are not competitively disadvantaged, and to promote consistent State action to protect consumers against debt collection abuses.” 15 U.S.C. § 1692(e) (1997). Although creditors generally are not subject to the FDCPA, see Aubert v. Am. Gen. Fin., Inc., 137 F.3d 976, 978 (7th Cir.1998), the Act subjects third-party debt collectors to limitations on the content and nature of their correspondence with debtors, see 15 U.S.C. §§ 1692e(ll), 1692g(a). For the purposes of the FDCPA, a “debt collector” is one who uses any instrumentality of interstate commerce or the mails in any business the principal purpose of which is the collection of any debts, or who regularly collects or attempts to collect, directly or indirectly, debts owed or due or asserted to be owed or due another. Notwithstanding the exclusion provided by clause (F) of the last sentence of this paragraph, the term includes any creditor who, in the process of collecting his own debts, uses any name other than his own which would indicate that a third person is collecting or attempting to collect such debts. For the purpose of section 1692f(6) of this title, such term also includes any person who uses any instrumentality of interstate commerce or the mails in any business the principal purpose of which is the enforcement of security interests. 15 U.S.C. § 1692a(6) (1997). The FDCPA, however, provides a number of exceptions to this definition. One such exception is “any person collecting or attempting to collect any debt owed or due or asserted to be owed or due another to the extent such activity... (iii) concerns a debt which was not in default at the time it was obtained by such person.” 15 U.S.C. § 1692a(6)(F) (emphasis added). Thus, under § 1692a(6)(F)(iii), the classification of debt collector depends upon the status of a debt, rather than the type of collection activities used. Unfortunately, the FDCPA does not define so key a term as “default.” In its March 2001 annual report on the FDCPA, the Federal" }, { "docid": "17077176", "title": "", "text": "consistent with this opinion. Each party will bear its own costs on appeal. AFFIRMED IN PART, REVERSED IN PART and REMANDED. . The following facts are taken from the Schlegels’ amended complaint. . Wells Fargo argues that it qualifies as a creditor under § 1692a(4), and therefore cannot be a debt collector. See 15 U.S.C. § 1692a(4) (excluding from the definition of \"creditor” \"any person to the extent that he receives an assignment or transfer of a debt in default solely for the purpose of facilitating collection of such debt for another”). In making this argument, Wells Fargo relies on out-of-circuit decisions holding that a person who meets the FDCPA definition of \"creditor” is per se not a \"debt collector.” See, e.g., McKinney v. Cadleway Props., Inc., 548 F.3d 496, 498 (7th Cir.2008) (\"The FDCPA covers debt collectors, not creditors, and these categories are mutually exclusive.” (internal quotation marks omitted)); Bridge v. Ocwen Fed. Bank, FSB, 681 F.3d 355, 359 (6th Cir.2012). We reject this per se rule, which finds no support in the text of the FDCPA, but nevertheless conclude on other grounds that Wells Fargo does not meet the statutory definition of debt collector. . 15 U.S.C. § 1692a(6) states, in relevant part: The term \"debt collector” means any person who uses any instrumentality of interstate commerce or the mails in any business the principal purpose of which is the collection of any debts, or who regularly collects or attempts to collect, directly or indirectly, debts owed or due or asserted to be owed or due another. Notwithstanding the exclusion provided by clause (F) of the last sentence of this paragraph, the term includes any creditor who, in the process of collecting his own debts, uses any name other than his own which would indicate that a third person is collecting or attempting to collect such debts. For the purpose of section 1692f (6) of this title, such term also includes any person who uses any instrumentality of interstate commerce or the mails in any business the principal purpose of which is the enforcement of security interests. 15" }, { "docid": "23500533", "title": "", "text": "subchapter with respect to any person is liable to such person 15 U.S.C. § 1692k(a). This enforcement provision \"is couched in the broadest possible language.” Wright, 22 F.3d at 649 (internal quotation marks and citation omitted). . According to Montgomery, he was \"allegedly obligated to a pay a debt” because Huntington Bank faxed a letter to Silver Shadow indicating that \"the unit [i.e., the car] was possibly in the possession of a person known to the bank as Duane Montgomery” and provided his address. Such awareness or exchange between the Defendants, however, says nothing as to whether Montgomery has, or allegedly has, a legal obligation to pay a debt in connection with the car. . A debt is \"any obligation or alleged obligation of a consumer to pay money arising out of a transaction in which the money, property, insurance, or services which are the subject of the transaction are primarily for personal, family, or household purposes, whether or not such obligation has been reduced to judgment.” 15 U.S.C. § 1692a(5). . Section 1692a(6) states that ”[f]or the purpose of section 1692f(6) of this title, [the term debt collector] also includes any person who uses any instrumentality of interstate commerce or the mails in any business the principal purpose of which is the enforcement of security interests.” Section 1692f(6) itself prohibits the following conduct: Taking or threatening to take any nonjudicial action to effect dispossession or disablement of property if— (A)there is no present right to possession of the property claimed as collateral through an enforceable security interest; (B) there is no present intention to take possession of the property; or (C) the property is exempt by law from such dispossession or disablement. 15 U.S.C. § 1692f(6). . The court also found helpful an FTC commentary that provided that Because the FDCPA's definition of “debt collection” includes parties whose principal business is enforcing security interests only for ... [§ 1692f(6) ] purposes, such parties (if they do not otherwise fall within the definition) are subject only to this provision and not to the rest of the FDCPA. Jordan, 731 F.Supp." }, { "docid": "7657846", "title": "", "text": "the mails in any business the principal purpose of which is the enforcement of security interests. Id. § 1692a(6) (emphasis added). “By the plain language of the statute, therefore, a person whose business has the principal purpose of enforcing security interests but who does not otherwise satisfy the definition of a debt collector is subject only to [15 U.S.C.] § 1692f(6).” Kaltenbach v. Richards, 464 F.3d 524, 527 (5th Cir.2006). By its terms, § 1692f(6)(A) applies to trustees performing nonjudicial foreclosures. Mr. Woodall does not deny that he qualifies as a “debt collector” under § 1692f(6)(A), but he denies that Ms. Burnett’s complaint properly alleges he violated that section. The district court agreed and held that Mr. Woodall did not violate § 1692f(6)(A) because MERS was authorized under the trust deed to initiate foreclosure proceedings and to appoint Mr. Woodall as successor trustee to carry out the foreclosure when Ms. Burnett defaulted on her debt. Ms. Burnett seems to have several theories for why Mr. Woodall and the other defendants violated this provision of the FDCPA. Her primary argument is that MERS did not have authority under Utah law to act as a beneficiary, either at the origination of the loan or when it sold the loan to new lenders or as a part of a securitized trust. She relies on Utah Code Ann. § 57-1-19(1), which defines the “beneficiary” of a trust deed as “the person named or otherwise designated in a trust deed as the person for whose benefit a trust deed is given, or his successor in interest.” According to the allegations in Ms. Burnett’s complaint, MERS cannot be a beneficiary of the note because it has no ownership right in the note. As a result of MERS’s alleged lack of authority as beneficiary, she alleges, Mr. Woodall, as MERS’s assignee, did not have authority to foreclose on her property. He therefore violated the FDCPA when he foreclosed without having a present right to possess the property. See 15 U.S.C. § 1692f(6)(A). Ms. Burnett is correct that MERS is not a beneficiary as that term is defined" } ]

[ { "docid": "10176795", "title": "", "text": "and relinquish all interests in the property of the debtor which it previously held. Consequently, any security interest which Security Pacific previously held was completely extinguished at that point. With the filing of UCC-3 termination statements, Security Pacific’s security interest became unper-fected and subject to the perfected security interests in the same collateral of Hamilton Bank and the shareholders of the debtor and to the rights of the debtor as a hypothetical lien creditor. See 13 Pa.Cons.Stat. Ann. §§ 9301(a), 9302(a), and 9312(e) (Pur- don 1984); 11 U.S.C. §§ 544(a) and 1107(a). See also, In re Apollo Travel Inc., 567 F.2d 841 (8th Cir.1977). Security Pacific had ample opportunity to learn about the IRS investigation prior to the execution of these documents. What is even more significant, however, is that Security Pacific knew at the time the documents were executed that the debtor’s withholding taxes had not been paid. To now argue that had Security Pacific known about the outstanding tax obligations of the debtor, it would not have executed UCC-3 termination statements is a misstatement of the facts. In summary, we find that Security Pacific has not contractual right to indemnification or contribution for any future penalty assessed by the IRS in connection with the unpaid taxes. In the absence of such a right, Security Pacific would have no basis upon which to make a claim against the debtor for indemnity or contribution even in the unlikely event that the IRS decides to impose a penalty against Security Pacific. In view of our holding, we need not address the alternative argument raised by the debtor under section 502(e)(1)(B) of the Bankruptcy Code for dis-allowance of Security Pacific’s claim. . This Opinion constitutes the findings of fact and conclusions of law required by Bankruptcy Rule 7052 of the Rules of Bankruptcy Procedure. . The security agreements executed on September 9, 1980 include (1) an Accounts Receivable Agreement with Rider; (2) an Equipment Supplement to the Accounts Receivable Agreement with Rider A (\"the Equipment Agreement”); and an Inventory Supplement to the Accounts Receivable Agreement with Rider A (“the Inventory Agreement\") (hereinafter" } ]

[ { "docid": "18796598", "title": "", "text": "if such appointment is in the best interests of creditors, any equity security holders, and other interests of the estate, without regard to the number of holders of securities of the debtor or the amount of assets or liabilities of the debtor. 11 U.S.C. § 1104. 42. Determinations made pursuant to § 1104(a) of the Bankruptcy Code are fact intensive. See In re Sharon Steel Corp., 871 F.2d 1217, 1225 (3d Cir.1989) (section 1104(a) decisions must be made on a case by case basis). A bankruptcy court is required to order the appointment of a trustee where “cause” exists. Subsection (a)(1) identifies examples of “cause” including fraud, dishonesty, incompetence and gross mismanagement. However, this list is nonexhaustive. See, e.g., In re Madison Management Group, Inc., 137 B.R. 275, 281 (Bankr.N.D.Ill.1992) (Sonderby, J.); see also In re V. Salvino Oil & Heating Co., Inc., 99 B.R. 518, 525 (Bankr.E.D.N.Y.1989) (“grounds for appointing a reorganization trustee are not even limited to the derelictions specifically enumerated”). A determination of cause, therefore, is within the discretion of the court and due consideration must be given to the various interests involved in the bankruptcy proceeding. Id. at 241. Committee of Dai-kon Shield Claimants v. A.H. Robins Co., Inc., 828 F.2d 239, 240 (4th Cir.1987) (citing In re General Oil Distributors, Inc., 42 B.R. 402 (Bankr.E.D.N.Y.1984)). 43. The Court has particularly wide discretion under subsection (a)(2). Section 1104(a)(2) sets forth a flexible standard for appointment of a trustee even when no cause exists. Under this subsection, the Court is required to appoint a trustee when doing so addresses “the interests of the creditors, equity security holders and other interests of the estate.” See, e.g., Committee of Daikon Shield Claimants., 828 F.2d at 240; see also V. Salvino Oil & Heating, 99 B.R. at 526 n. 11 (“factors constituting a basis for appointment a trustee under § 1104(a)(2) are amorphous, diverse and necessarily involve a great deal of judicial discretion”). “It seems that § 1104(a)(2) reflects ‘the practical reality that a trustee is needed.’ ” Id. (citing In re Sharon Steel Corp., 86 B.R. 455, 458 (Bankr.W.D.Pa.1988))." }, { "docid": "1874281", "title": "", "text": "22, 2003.” Id. at 1911. The bankruptcy court determined that the repurchase rights as to the C-2 and C-3 warrants became claims after demand for repurchase was made by letters dated March 22, 2002. 283 B.R. at 219. The court reasoned that its conclusion was consistent with the definition of equity security, which the court had misread. As with the C-l rights, the rights to demand repurchase of the warrants clearly fall within the definition of “equity security.” As the bankruptcy court noted, a warrant is a security. Id.; 11 U.S.C. § 101(49)(xv). And, the definition of equity security includes a warrant or right to sell a security. 11 U.S.C. § 101(16)(C). C. Whether Equity Securities and Claims are Mutually Exclusive in the Bankruptcy Claim Context. Having concluded that all of the interests at issue are equity securities, the court next considers whether any of the rights held by appellants could also be claims. The rights of redemption and to require repurchase seem to come within the Bankruptcy Code’s definition of “claim,” 11 U.S.C. § 101(5)(A), as well as its definition of “equity security.” Thus, the issue becomes the proper treatment to give a right or interest in the debtor that fits the statutory definitions of both “claim” and “equity security.” The cases the court has found most nearly in point recognize only that an equity security holder might also have an independent claim. See, e.g., In re St. Charles Pres. Investors Ltd., 112 B.R. 469, 474 (D.D.C.1990); IDS Holding Co., L.L.C. v. Madsen (In re IDS Holding Co., L.L.C.), 292 B.R. 233, 238 (Bankr.D.Conn.2003). And, other cases have discussed the possibility that an equity interest might convert to a claim at some point in time. Duel Glass v. Search Fin. Servs., Inc. (In re Search Fin. Servs. Acceptance Corp.), 2000 WL 256889, at *3-*4 (N.D.Tex.2000); In re Einstein/Noah Bagel Corp., 257 B.R. 499, 507 (Bankr.D.Ariz.2000); but see In re Revco D.S., Inc., 118 B.R. 468, 474-75 (Bankr.N.D.Ohio 1990), and In re Joshua Slocum Ltd., 103 B.R. 610, 623 (Bankr.E.D.Pa.1989) (both holding that redemption rights of preferred stockholders are properly" }, { "docid": "1139578", "title": "", "text": "in property to the extent that such lien impairs an exemption to which the debtor would have been entitled under subsection (b) of this section, if such lien is— ... (2) a nonpossessory, nonpurchase-money security interest in any — (A) household furnishings, household goods, wearing apparel, appliances, books, ... that are held primarily for personal, family or household use of the debtor or a dependent of the debtor; (emphasis added). The dual status rule, however, is equally sensitive to these policy concerns in that it places the burden on the creditor to demonstrate the extent to which a security interest retains purchase money status. A creditor’s failure to meet this burden will result in the Court’s treating the entire security interest as nonpurchase money. In re Coomer, 8 B.R. 351, 355 (Bankr.E.D.Tenn.1980). In its brief, the bank argues that debtors have no right to claim their homestead exemption because its security interest, being properly perfected, is not avoidable under any of the lien avoidance provisions of the Bankruptcy Code. The bank refers this Court to 11 U.S.C. Sections 522(f), 522(e), 544, 545, 548 and 549. This argument may be true where a debtor executes a security agreement containing a homestead waiver as required by Wyoming Statute section 34-2-121 (1977). Where, however, the creditor takes a security interest in the debtor’s homestead property but fails to obtain the requisite waiver, the debtor has no reason to avoid the security interest before claiming the homestead exemption because it has priority over the eonsensually created encumbrance. See, e.g., Delfelder v. Teton Land & Investment Co., 46 Wyo. 142, 24 P.2d 702 (1933); Jones v. Losekamp, 19 Wyo. 83, 114 P.2d 673 (1911). These cases stand for the broad proposition that eonsensually encumbered homestead without a release is valid only to the excess of the homestead exemption’s value. Thus to the extent that the bank’s perfected security interest is non-purchase money, the debtors need not avoid the encumbrance before claiming their exemption because it is, by the absence of a valid waiver, superior to the bank’s ordinary security interest. The bank next admonishes this" }, { "docid": "20856516", "title": "", "text": "or types now owned or hereafter acquired,” and \"all additions and accessions thereto and all proceeds of such vehicles,” adequately described automobile inventory financed by secured party), rev'd on other grounds, 139 Ill.2d 216, 151 Ill.Dec. 342, 564 N.E.2d 797 (1990); Villa v. Alvarado State Bank, 611 S.W.2d 483 (Tex.Civ.App.1981) (description of collateral in security agreement as \"All motor vehicles purchased from time to time by Debtor with proceeds of funds advanced by Bank. Such vehicles shall be inventory in hands of Debtor.” was sufficient to create security interest in any particular \"motor vehicle” acquired or \"purchased” by the debtor). A description of personal property in a security agreement is sufficient \"whether or not it is specific if it reasonably identifies what is described.” Ala.Code 1975, § 7-9-110. See Galleon Industries, Inc. v. Lewyn Machinery Co., 50 Ala.App. 334, 279 So.2d 137, 141 (1973) (description of collateral in security agreement as \"equipment” was sufficient to create security interest in individual machine), cert. den., 291 Ala. 779, 279 So.2d 142 (1973). . This result is required even though the written agreement, once executed, may have created an enforceable security interest in the BMW and its proceeds. While section 7-9-203(l)(a) requires a security agreement to be in writing, it does not specify when the writing must be executed. When an issue is not specifically addressed by a provision of the Uniform Commercial Code, Section 7-1-103 of the Alabama Code contemplates that the issue will be decided in accordance with principles of common law and equity. \"Unless displaced by the particular provisions of this title, the principles of law and equity, including the law merchant and the law relative to capacity to contract, principal and agent, estoppel, fraud, misrepresentation, duress, coercion, mistake, bankruptcy, or other validating and invalidating cause shall supplement its provisions.” Ala.Code 1975, § 7-1-103. Under the common law of this state, as well as many other states, a writing signed subsequent to an oral agreement, which memorializes the terms of the oral agreement, satisfies the Statute of Frauds. Weitnauer Trading Co., Ltd. v. Annis, 516 F.2d 878, 880 (2nd Cir.1975)" }, { "docid": "2615604", "title": "", "text": "9-12-81 in their briefs, but argued only over whether Mr. Weyer’s recording in the General Execution Docket under the name of DNT was fatal. This is probably because it is often assumed that the strong-arm clause can be used to avoid any improperly perfected security interest and any improperly recorded interest. In fact, section 9-317 of the Uniform Commercial Code (O.C.G.A. § 11-9-317) specifically states that an un-perfected security interest is subordinate to the rights of a person who becomes a lien creditor before the security interest is perfected, and U.C.C. section 9-102(53)(C) defines a “lien creditor” to include a trustee in bankruptcy. Thus, one often sees a bankruptcy trustee prevailing over a creditor with an improperly recorded financing statement, and many cases arising under the Uniform Commercial Code involve whether the financing statement was properly recorded and whether the correct name of the debtor appears on the financing statement. However, the Georgia law regarding the perfection of consensual security interests and the Georgia law regarding the perfection of judgment liens are not identical. An unrecorded judgment in Georgia is not subordinate to a later judgment, and so a trustee in bankruptcy cannot use § 544(a)(1) to avoid a judgment lien, to the extent one exists, simply because the judgment is not recorded in the General Execution Docket. This brings us to the question of whether Mr. Weyer has a lien on the funds held by the Trustee resulting from the settlement with MoldData. In general, a judgment creditor in Georgia acquires a lien on personal property on the day the creditor obtains the judgment. O.C.G.A. § 9-12-80 (2003); Cohutta Mills, Inc. v. Hawthorne Industries, Inc., 179 Ga.App. 815, 348 S.E.2d 91, 93 (1986); see also In re Tinsley, 421 F.Supp. 1007, 1010 (M.D.Ga.1976), aff'd, 554 F.2d 1064 (5th Cir.1977). In a contest between two judgment creditors, the earlier judgment prevails unless the judgments are rendered during the same term of court in which the case the judgments are deemed to be of equal dignity. O.C.G.A. § 9-12-87 (2003); Wellington v. Lenkerd Co., Inc., 157 Ga. App. 755, 278 S.E.2d" }, { "docid": "9890155", "title": "", "text": "157(c)(1) and 1334. Our jurisdiction is based on 28 U.S.C. § 1291. See In re PWS Holding Corp., 228 F.3d 224, 235 (3d Cir.2000); In re Marvel Entm't Group, Inc., 140 F.3d 463, 470 (3d Cir.1998). We review the District Court's conclusions of law de novo, its factual findings for clear error, and its exercise of discretion for abuse thereof. Gillman v. Cont’l Airlines (In re Cont’l Airlines), 203 F.3d 203, 208 (3d Cir.2000). . The \"persons aggrieved” standard appeared originally in section 39(c) of the Bankruptcy Act of 1898. See 11 U.S.C. § 67(c) (1976) (limiting appellate standing in bankruptcy cases to \"persons aggrieved by an order of a referee”). Although this provision was eliminated in the 1978 amendments to the Bankruptcy Code, federal courts retained the \"persons aggrieved” standard as a prudential standing limitation for bankruptcy appeals. See Travelers Ins. Co. v. H.K. Porter Co., 45 F.3d 737, 741 (3d Cir.1995). .This restrictive approach to bankruptcy appellate standing . contrasts with the broad right of participation in the early stages of a bankruptcy proceeding. Under Bankruptcy Code § 1128(b), any \"party in interest” may object to plan confirmation during the confirmation hearing. 11 U.S.C. § 1128(b). The Code defines \"party in interest” to include \"the debtor, the trustee, a creditors' committee, an equity security holders' committee, a creditor, an equity security holder, or any indenture trustee.” Id. § 1109(b). This list is not exhaustive, however, id. § 102(3), (5), and § 1109(b) has been construed to create a broad right of participation in Chapter 11 cases. See In re Amatex Corp., 755 F.2d 1034, 1042 (3d Cir.1985) (“[T]he predecessor provisions of section 1109(b) of the Code constituted an effort to encourage and promote greater participation in reorganization cases .... [and] [s]ection 1109(b) continues in this tradition[.]”) (citations omitted); In re PWS Holding Corp., 228 F.3d at 249 (Section 1109(b) \"confers broad standing at the trial level”). . The Objecting Insurers include appellants Allianz Insurance Company, Continental Casualty Company and Transportation Insurance Company, Evanston Insurance Company, Everest Reinsurance Co. fik/a Prudential Reinsurance Co., First State Insurance Company, Hartford Accident" }, { "docid": "18548926", "title": "", "text": "or another, creditors and equity security holders have a claim upon these assets, whether on account of a pre-petition debt or some type of ownership interest, which may be altered or restructured in the reorganization process. The committees are those organized under the auspices of the Bankruptcy Code to speak for their creditor or equity security holder constituents and the trustee is the one charged with the administration of case and the bankruptcy estate. “The reorganization of a corporation in bankruptcy is a matter between the corporation and its stockholders on the one hand, and its creditors on the other.” In re South State Street Bldg. Corp., 140 F.2d 363, 366 (7th Cir.1943), cert. denied, Hofheimer v. Gold, 322 U.S. 761, 64 S.Ct. 1279, 88 L.Ed. 1588 (1944). The term “party in interest” should be interpreted against this background. See Ionosphere Clubs, 101 B.R. at 849; In re Addison Community Hospital Authority, 175 B.R. 646, 650 (Bankr.E.D.Mich.1994). Consequently, to qualify as a party in interest requires more than merely being interested in the outcome of the bankruptcy. It requires a direct legal interest in the case. Addison Community Hosp., 175 B.R. at 650; In re International Oriental Rug Center, Inc., 165 B.R. 436, 440 (Bankr.N.D.Ill.1994). Given this prerequisite, it is doubtful that a pre-petition receiver qualifies as a party in interest. The receiver has no rights in or claim to the debtor’s assets to be adjusted or restructured by the proceeding. This court’s suspicion that a pre-petition receiver is not a party in interest is reinforced when one considers the impact of a bankruptcy proceeding on a pre-petition receivership and the receiver/custodian’s resulting obligations. The statutory directive is to cease administration, 11 U.S.C. § 543(a), deliver property to the trustee, 11 U.S.C. § 543(b)(1), and account for all property, 11 U.S.C. § 543(b)(2). The import of § 543 is clear. Whether characterized as having been superseded, In re 245 Associates, LLC, 188 B.R. 743, 748 (Bankr.S.D.N.Y.1995); In re Dressler Producing Corp., 262 F. 257, 260 (2d Cir.1919), terminated, In re Northgate Terrace Apartments, Ltd., 117 B.R. 328, 331 (Bankr.S.D.Ohio 1990)," }, { "docid": "16637214", "title": "", "text": "vote.... ” S.Rep. No. 95-989, at 124 (1978), reprinted in 1978 U.S.C.C.A.N. 5910. Bankruptcy Rule 3019 implements the plan modification codifications of § 1127 and provides: In a ... chapter 11 case, after a plan has been accepted and before its confirmation, the proponent may file a modification of the plan. If the court finds after hearing on notice to the trustee, any committee appointed under the Code, and any other entity designated by the court that the proposed modification does not adversely change the treatment of the claim of any creditor or the interest of any equity security holder who has not accepted in writing the modification, it shall be deemed accepted by all creditors and equity security holders who have previously accepted the plan. Fed. R. BaNKR.P. 3019. In other words, a court may deem a claim or interest holder’s vote for or against a plan as a corresponding vote with respect to a modified plan. Enron Corp. v. New Power Co. (In re New Power Co.), 438 F.3d 1113, 1117-18 (11th Cir.2006); see also 11 U.S.C. § 1127(d). However, when a “modification materially and adversely affects any of [the voting parties’] interests, they must be afforded an opportunity to change their vote[.]” In re Am. Solar King. Corp., 90 B.R. 808, 825 (Bankr.W.D.Tex.1988) (internal quotation omitted). While the law is clear in this regard, not all modifications require a debtor to re-solicit votes. If modifications made to a plan prior to confirmation (but after the ballots have been counted) are minor, impact only a creditor who has been fully involved, and do not adversely impact any other creditor, then it is not necessary to solicit new acceptances. In re Sherwood Square Assocs., 87 B.R. 388, 390 (Bankr.D.Md.1988). Moreover, a new disclosure statement is not required in every instance where a modification is made; if the modification is minor, the existing disclosure statement will suffice. In re Concrete Designers, Inc., 173 B.R. 354, 356 (Bankr.S.D.Ohio 1994). The Bankruptcy Code is designed to encourage consensual resolution of claims and disputes through the plan negotiation process, which includes pre-confir-mation modifications." }, { "docid": "18543678", "title": "", "text": "810 ILCS 5/9-301(l)(b). Since, in these cases, the trustee as of the date of filing had the rights of a lien creditor with priority over the unperfeeted security interests of the defendant creditors, these interests may be entirely avoided by the trustee under 11 U.S.C. § 544(a)(1). Accordingly, the creditors’ interests are eliminated as to the subject vehicles, and their claims survive only as unsecured claims against the debtors’ estates. See Epstein, supra, § 6-61, at 111. The creditors, in an effort to avoid this unfavorable result, argue that the Court should exercise its equitable powers and deem their security interests perfected by way of equitable liens because the parties intended the creditors’ interests to be secured and it was due to the debtors’ inaction or failure to cooperate that the creditors’ liens were not properly recorded on the vehicles’ titles. The Court rejects this argument, as it has previously ruled that equitable liens arising under state law are contrary to the letter and purpose of the Bankruptcy Code and are, therefore, ineffective against a trustee’s § 544(a) avoiding powers. See In re Wiggs, 87 B.R. 57, 59 (Bankr.S.D.Ill.1988). The creditors additionally assert that the trustee is without standing to bring these lien avoidance actions because a Chapter 13 trustee serves only a limited administrative function of objecting to claims and ensuring compliance with confirmation requirements and plan provisions. This argument, too, is foreclosed by a previous ruling of the Court. In In re Ervin, Adv. No. 95-3167, slip op. at 9 (Bankr.S.D.Ill. Nov. 15, 1995), the Court held that a Chapter 13 trustee has both statutory and constitutional standing to avoid unperfected liens under § 544(a) when such avoidance would increase the amount of disposable income to be allocated among unsecured creditors and thus benefit the estate. See also In re Bequette, 184 B.R. 327, 333 (Bankr.S.D.Ill.1995) (Chapter 13 trustee has statutory authority to bring Ken avoidance actions pursuant to 11 U.S.C. § 103(a)). Since, in these cases, avoidance of the creditors’ Kens would increase the proportion of the debtors’ income to be paid to other unsecured creditors under" }, { "docid": "15824415", "title": "", "text": "and 362(d)(3) is especially the case in jurisdictions where “cause” cannot be based simply on the debtor’s subjective intent. Compare In re Carolin Corp. v. Miller, 886 F.2d 693, 700 (4th Cir.1989) (“we agree with those courts that require both objective futility and subjective bad faith”) (emphasis in original), and In re Phoenix Piccadilly, Ltd., 849 F.2d 1393, 1394 (11th Cir.1988) (“The possibility of a successful reorganization cannot transform a bad faith filing into one undertaken in good faith.”). This Circuit’s precedent apparently follows the former, Ca rolin standard, see In re Cohoes Indust. Terminal, 931 F.2d at 227; In re Kingston Square, 214 B.R. at 725; In re Gucci, 174 B.R. at 410, although a debtor’s behavior can be so egregious-especially in a two-party case or a case in which the other parties in interest do not oppose the creditor’s requested relief-that there may be no need to look into the possibility of a debt- or’s equity in the collateral or the reasonable likelihood of the debtor confirming a chapter 11 plan in a reasonable time. In re Briarpatch Film Corp., 281 B.R. 820, 834 (Bankr.S.D.N.Y.2002) (debtor was in bad faith when only reason for its filing bankruptcy was to relitigate merits of state court decision; proper remedy was to appeal in state court); In re Eclair Bakery Ltd., 255 B.R. 121, 137-40 (Bankr.S.D.N.Y.2000) (newly incorporated debtor was in bad faith because it had received affiliated debtor’s property to circumvent earlier bankruptcy court order prohibiting transferor’s serial bankruptcy filing). See also 7 Collier on Bankruptcy ¶ 1112.07[6][a]-[b], at 1112-72-76 (arguing pros and cons of dismissing case for bad behavior notwithstanding ability to reorganize). Nevertheless, if a debtor can show that the collateral is adequately protected and that it meets section 362(d)(2)(B) of the Code, a secured creditor should not obtain stay relief to foreclose absent extraordinary circumstances. Secured creditors generally are better off relying on the Bankruptcy Code’s many provisions specifically protecting collateral as fairly valued (11 U.S.C. §§ 362(d), 506(a), 1111(b), 1129(b)(2)(A)), as well as other provisions governing debtor misconduct (11 U.S.C. §§ 523(a) (for individual debtors), 544," }, { "docid": "18800657", "title": "", "text": "security interest in a security occurs. Absent the debtor’s filing bankruptcy, the perfection of Indi-Bel’s security interest in the subject stock would have occurred when the stock certificate was transferred to Indi-Bel’s possession. The bankruptcy filing, however, materially alters this result because of the effects of 11 U.S.C. § 544(a)(1) and (2) and 11 U.S.C. § 549(a)(1). These sections deal respectively with the hypothetical status granted to a trustee or debtor-in-possession upon the filing of a bankruptcy case and the prohibition against a post-petition transfer of estate property. In In re Nash, 70 B.R. 40 (Bankr.E.D.N.Y. 1987), the court held that in order to properly perfect a security interest in shares of stock, a creditor had to have actual possession of the stock certificate. Nash went on to state that a security interest in stock could not be perfected by a creditor when the stock had never been issued. The court in In re Wholesale Warehouse, Inc., 141 B.R. 59 (Bankr.D.N.J.1992), stated the following: A member’s interest in its capital account in a cooperative is an equity interest. In re F.L.F. Farmers Cooperative Ass’n, Inc., 170 F.Supp. 497 (D.N.J.1958); In re Eastern Maine Elec. Co-op., Inc., 125 B.R. 329 (Bankr.D.Me.1991); In re Beck, 96 B.R. 161 (Bankr.C.D.Ill.1988); In re Lamar Farmers Exchange, 76 B.R. 712 (Bankr.W.D.Mo.1987). Unless a stock certificate is issued evidencing a member’s interest in a cooperative, such interest is in the nature of a general intangible. In re Axvig, 68 B.R. 910, 917 (Bankr.D.N.D. 1987); In re Beck, supra, at 163; In re Shiflett, 40 B.R. 493, 496 (Bankr.W.D.Va. 1984); In re Cosner, 3 B.R. 445, 448 (Bankr.D.Ore.1980). It has similarly been held that where stock certificates reflecting equity interests in corporations have not been issued, such interests are in the nature of general intangibles. Heinicke Instruments Co. v. Republic Corp., 543 F.2d 700, 702 (9th Cir.1976); In re Nash, 70 B.R. 40 (Bankr.E.D.N.Y.1987). Wholesale Warehouse, 141 B.R. at 63. Heinicke Instruments Co. v. Republic Corp., 543 F.2d 700 (9th Cir.1976), was another case where a creditor claimed a perfected security interest in stock which had not" }, { "docid": "12862443", "title": "", "text": "the 9019 settlement did not require the non-party to pay any money, and therefore the party lacked a direct stake in the outcome and lacked Article III standing), aff'd sub nom. Savage & Associates, P.C. v. K & L Gates LLP (In re Teligent, Inc.), 640 F.3d 53 (2d Cir. 2011). 3. Party in Interest Standing Lastly, if both prudential and constitutional standing are met, the Bankruptcy Code separately requires “party in interest” standing under section 1109. See 11 U.S.C. § 1109; In re Lehman Bros. Holdings Inc., 2012 WL 1057952, at *3 (S.D.N.Y. Mar. 26, 2012) (explaining that “[s]ection 1109(b) creates an independent standing hurdle for parties wishing to appear or be heard in bankruptcy proceedings”) (internal citation omitted); Parker v. Motors Liquidation Co. (In re Motors Liquidation Co.), 430 B.R. 65, 92 (S.D.N.Y. 2010) (“[Section 1109(b) of the Bankruptcy Code does not satisfy or replace the constitutional and prudential limitations on standing. Rather, a party must establish both.”) Pursuant to 11 U.S.C. § 1109(b), “[a] ‘party in interest,’ including the debt- or, the trustee, a creditors’ committee, an equity security holders’ committee, a creditor, an equity security holder, or any indenture trustee, may raise and may appear and be heard on any issue in a case under this chapter.” These interested parties are non-exclusive. See In re Residential Capital, LLC, 2013 WL 6698365, at *3 (Bankr. S.D.N.Y. Dec. 19, 2013) (explaining that “[i]n the context of chapter 11 cases, the Code provides a non-exclusive listing of ‘parties in interest’ ”). In applying section 1109(b), “[c]ourts must determine on a case-by-case basis whether the prospective party in interest has a sufficient stake in the proceeding so as to require representation.” Lazard v. Texaco Inc. (In re Texaco Inc.), 81 B.R. 820, 828 (Bankr. S.D.N.Y. 1988) (citing In re Amatex Corp., 755 F.2d 1034, 1042 (3d. Cir. 1985)). To establish party in interest standing under section 1109, a proposed participant must either be a party enumerated in the statute or: (1) have a “direct” stake in the proceeding and (2) “be a creditor of a debtor ... or be able" }, { "docid": "10978485", "title": "", "text": "whether to impose a constructive trust on property within the debtor’s possession.” In re Howard’s Appliance Corp., 874 F.2d at 93; see also In re Terwilliger’s Catering Plus, Inc., 911 F.2d 1168 (6th Cir.1990). State law also defines the point at which property held by the debtor has been subjected to such a trust. There appears to be no ruling of the Kentucky Supreme Court which addresses the issue of whether a constructive trust arises at the time of the wrongdoing or at the time of the judgment imposing the trust. However, “[a] federal court applying state law is bound to adhere to decisions of the state’s intermediate appellate courts absent some persuasive indication that the state’s highest court would decide the issue otherwise.” Silverberg v. Paine, Webber, Jackson & Curtis, Inc., 710 F.2d 678, 690 (11th Cir.1983). After the district court affirmed the decision of the bankruptcy court, the Kentucky Court of Appeals, in Commonwealth Cabinet for Human Resources v. Security of America Life Insurance Co., 834 S.W.2d 176 (Ky.Ct.App.1992), held that a lien creditor has priority over a constructive trust beneficiary, if the lien creditor’s interest attached to the property before the court created the constructive trust. The Security of America court concluded that “the constructive trust being a creature of equity did not come into existence until it was created by court order.” Id. at 180-81. See also Borg-Warner Acceptance Corp. v. First Nat’l Bank of Prestonsburg, 577 S.W.2d 29 (Ky.App.1979). Accordingly, the most authoritative expression of Kentucky law provides that a constructive trust only comes into being at the time of its judicial creation. Therefore, at the time of debtor’s bankruptcy filing, Data-comp did not have an equitable interest in the deposits it paid to Omegas. As this was so, the bankruptcy trustee’s section 544(a) strong-arm power could not have been compromised by the operation of a post-petition constructive trust. The trust created by the bankruptcy court in the case at bar must be dissolved and the funds contained within committed to Omegas’ bankruptcy estate. . Datacomp contends that we need not follow Security of America" }, { "docid": "12218557", "title": "", "text": "reorganization; acceptance or rejection of a plan, etc. Chapter 11 is essentially, or should be, a negotiated process; a system to induce compromise. Classification is rooted not merely in a statute, but is predicated on the basic need for a reasonable and fair method of maximizing reorganization prospects, See Generally Classification of Unsecured Claims: Squaring a Circle?, C.F. Vihon, 55 Am.Bankr.L.J. 143; See also Classification of Claims and Interest in Reorganization cases under the New Bankruptcy Code, J.C. Anderson, 58 Am. Bankr.L.J. 99 (1984), and yet achieve a ratable distribution among creditors of a debtor’s assets. Congress appears to have recognized some of these practical considerations by the attached legislative history to § 1122. This history states: [T]his section codifies current case law surrounding the classification of claims [Payment in cash of small claims in full is common practice in reorganization. Brockett v. Winkle Terra Cotta Co., 81 F.2d 949, 952 (C.A.8, 1936); In re New Rochelle Coal & Lumber Co., 77 F.2d 881, 882-83 (C.A.2, 1935); In re Realty Associates Security Corp., 53 F.Supp. 1010, 1011 (E.D.N.Y., 1943)] and equity securities. It requires classification based on the nature of the claims or interests classified, and permits inclusion of claims or interests in a particular class only if the claim or interest being included is substantially similar to the other claims or interests of the class. (S.Rept. No. 95-989 to accompany S. 2266, 95th Cong., 2d Sess. (1978) p. 118.) Subsection (b), also a codification of existing practice, contains an exception. The plan may designate a separate class of claims consisting only of every unsecured claim that is less than or reduced to an amount that the court approves as reasonable and necessary for administrative convenience. (S.Rept. No. 95-989 to accompany S. 2266, 95th Cong., 2d Sess. (1978) p. 118.) Unfortunately, the legislative history provides us with guidance about the de mimimis rule for small claims and cordial relationship between creditors and debtors, See In re Realty Associates Securities Corp., 53 F.Supp. 1010, 1011 (E.D.N.Y.1943); Brockett v. Winkle Terra Cotta Co., 81 F.2d 949 (8th Cir.1936); In re New Rochelle" }, { "docid": "12620654", "title": "", "text": "to provide adequate information regarding the release of the preferences. The Debtors respond that Huff does not have standing to raise this argument. Appellate standing in bankruptcy cases is more limited than standing under Article III or the prudential requirements associated therewith. “Generally, litigants in federal court are barred from asserting the constitutional rights of others.” Kane v. Johns-Manville Corp., 843 F.2d 636, 643 (2d Cir.1988) (citing Warth v. Seldin, 422 U.S. 490, 499, 509, 95 S.Ct. 2197, 45 L.Ed.2d 343 (1975)). The court in Kane explained why limits on third-party standing are particularly relevant to appellate standing in bankruptcy proceedings: Bankruptcy proceedings regularly involve numerous parties, each of whom might find it personally expedient to assert the rights of another party even though that other party is present in the proceedings and is capable of representing himself. Third-party standing is of special concern in the bankruptcy context where, as here, one constituency before the court seeks to disturb a plan of reorganization based on the rights of third parties who apparently favor the plan. In this context, the courts have been understandably skeptical of the litigant’s motives and have often denied standing as to any claim that asserts only third-party rights. Id. at 644; see also Travelers Ins. Co. v. H.K. Porter Co., Inc., 45 F.3d 737, 741 (3d Cir.1995) (adopting the reasoning of Kane). Title 11 U.S.C. § 1109(b) — which provides that “[a] party in interest, including the debtor, the trustee, a creditors’ com mittee, an equity security holders’ committee, a creditor, an equity security holder, or any indenture trustee, may raise and may appear and be heard on any issue in a case under this chapter” — confers broad standing at the trial level. However, courts do not extend that provision to appellate standing: This rule of appellate standing is derived from former section 39(c) of the Bankruptcy Act of 1898, which permitted only a “person aggrieved” to appeal an order of the bankruptcy court. 11 U.S.C. § 67(c) (1976) (repealed 1978). Although the present Bankruptcy Code does not contain any express restrictions on appellate standing," }, { "docid": "19229060", "title": "", "text": "other thing of value, if the debt was incurred during the 1-year period preceding that filing. 11 U.S.C. § 1325(a). The parties here do not dispute that the Prices’ entire debt to Wells Fargo was incurred within 910 days of their bankruptcy filing and that the collateral for the entire debt (the Lincoln) was a motor vehicle acquired for the Prices’ personal use. The only issue in this case, therefore, is whether the Prices’ debt was secured by a “purchase money security interest.” 11 U.S.C. § 1325(a). In particular, the parties dispute whether the portion of the debt relating to the negative equity in the Prices’ trade-in gave rise to a purchase money security interest. B. The hanging paragraph does not define the term “purchase money security interest.” Indeed, that term is defined nowhere in the Bankruptcy Code. Wells Fargo nonetheless argues that we can construct a federal definition of “purchase money security interest” for purposes of the hanging paragraph. We disagree. Instead, we look to another source containing a ready-made definition of “purchase money security interest”: state law. “North Carolina and the vast majority of states have adopted” Article 9 of the Uniform Commercial Code, In re S. Air Transp., Inc., 511 F.3d 526, 531-32 (6th Cir.2007), which expressly defines the term “purchase-money security interest,” U.C.C. § 9 — 103(b). We apply this state-law definition because, when determining the substance of property rights and security interests in bankruptcy, “the basic federal rule is that state law governs.” Butner v. United States, 440 U.S. 48, 57, 99 S.Ct. 914, 59 L.Ed.2d 136 (1979); see id. at 55, 99 S.Ct. 914; see also Travelers Cas. & Sur. Co. of Am. v. Pac. Gas & Elec. Co., 549 U.S. 443, 450-51, 127 S.Ct. 1199, 167 L.Ed.2d 178 (2007). Indeed, we recently reiterated that “state law creates and defines security interests at issue in bankruptcy proceedings if no federal law requires a different result.” Tidewater, 531 F.3d at 319. Because Congress did not provide its own definition of “purchase money security interest,” no federal law prevents our use of North Carolina’s definition of" }, { "docid": "22798589", "title": "", "text": "Ins. Co., 132 B.R. 75, 79 (N.D.Ga.1991) (statutory language and Congressional intent preclude exception; exception inapplicable on facts); In re Lumber Exchange Ltd. Partnership, 125 B.R. 1000, 1008 (Bankr.D.Minn.) (confirmation improper where plan gives debtor’s equity security holders a special right to retain or acquire interest through cash contribution; exception not applicable on facts), aff'd, 134 B.R. 354 (D.Minn.1991). There is no clear bankruptcy policy which dictates a result. On the one hand, Congress might have intended that some exception continue because an infusion of new capital may be essential to the success of a new venture and the equityholders are a natural source for this capital. See Kansas City Terminal Ry. Co. v. Central Union Trust Co., 271 U.S. 445, 455, 46 S.Ct. 549, 551, 70 L.Ed. 1028 (1926). On the other hand, if the reorganization plan represents a reasonable business risk, creditors should be willing to forego immediate recoveries in exchange for the expectation of greater recoveries in the future, in which case they would consent to viable plans providing for new capital infusions. See Kham & Nate’s Shoes, 908 F.2d at 1360. Whether or not Congress was making a broad policy choice as to debtor or creditor control, the plain words of the statute provide an answer under the particular facts of this case. The question is whether the equityholders receive anything “on account of” their prior interest. Under the Bankruptcy Code, the debtor has the exclusive right to propose a reorganization plan for 120 days. 11 U.S.C. § 1121(b) (1988). In the proposed Plan, the equity-holders have given themselves not only the exclusive right to contribute, but the right to return of their new capital prior to Travelers’ recovery of its unsecured claim. As Travelers states in its brief: “the debtor’s equity holders were the only parties afforded the right to contribute new capital. In effect, they were allowed to ‘buy’ the property without exposing it to the market or otherwise allowing any other party, including Travelers, the opportunity to bid.” Appellant’s Brief, at 29. This exclusive right to contribute constitutes “property” under § 1129(b)(2)(B)(ii), which" }, { "docid": "17411677", "title": "", "text": "debtor, the trustee, a creditors’ committee, an equity security holders’ committee, a creditor, an equity security holder, or any indenture trustee, may raise and may appear and be heard on any issue in a case under this chapter.” 11 U.S.C. § 1109 (West 2002). In Hartford Underwriters Insur. Co. v. Union Planters Bank, N.A (In re Hen House), 530 U.S. 1, 8-9, 120 S.Ct. 1942, 147 L.Ed.2d 1 (2000), the Supreme Court, addressing the issue of whether an administrative claimant could seek to surcharge a secured creditor’s collateral under section 506(c) of the Code, held that § 1109 cannot expand a creditor’s right to pursue claims when the Code specifies who may bring the specific action. The Debtor cites Hen House and argues that in the instant matter, § 1109 may not be applied to allow the Legal Representative to intervene in the § 544(b) action only a trustee can bring. See Debtor’s Reply, pp. 9-10. The Debtor urges that the Committee brought the action on behalf of the Debtor’s estate and that because section 544(b) limits the ability to bring avoidance actions to a Trustee (or debtor-in-possession), the Legal Representative is not entitled to intervene in the Avoidance Action on behalf of the Debtor’s estate. Id. However, the Supreme Court, in footnote 5, suggested that other interested parties might pursue action there under § 506(c): We do not address whether a bankruptcy court can allow other interested parties to act in the trustee’s stead in pursuing recovery under § 506(c). Amici American Insurance Association and National Union Fire Insurance Co. draw our attention to the practice of some courts of allowing creditors or creditors’ committees a derivative right to bring avoidance actions when the trustee refuses to do so, even though the applicable Code provisions, see 11 U.S.C. §§ 544, 545, 547(b), 548(a), 549(a), mention only the trustee. See, e.g., In re Gibson Group, Inc., 66 F.3d 1436, 1438 (6th Cir.1995). Whatever the validity of that practice, it has no analogous application here, since petitioner did not ask the trustee to pursue payment under § 506(c) and did not" }, { "docid": "10324233", "title": "", "text": "element.” Phillips, 515 F.3d at 234 (quoting Twombly, 550 U.S. at 556, 127 S.Ct. 1955). In deciding motions to dismiss under Rule 12(b)(6), courts generally consider only the allegations in the complaint, exhibits attached to the complaint, matters of public record, and documents that form the basis of the claim. In re Burlington Coat Factory Sec. Litig., 114 F.3d 1410, 1426 (3d Cir.1997). A court may also take judicial notice of a prior judicial opinion. See McTernan v. City of York, 577 F.3d 521, 526 (3d Cir.2009); Buck v. Hampton Twp. Sch. Dist., 452 F.3d 256, 260 (3d Cir.2006). II. Effect of Confirmation of a Plan Section 1141 of the Bankruptcy Code describes the effect of confirmation of a plan in a chapter 11 case. Pursuant to § 1141(a): (a) Except as provided in subsections (d)(2) and (d)(3) of this section, the provisions of a confirmed plan bind the debtor, any entity issuing securities under the plan, any entity acquiring property under the plan, and any creditor, equity security holder, or general partner in the debtor, whether or not the claim or interest of such creditor, equity security holder, or general partner is impaired under the plan and whether or not such creditor, equity security holder, or general partner has accepted the plan. 11 U.S.C. § 1141(a). Accordingly, once a plan is confirmed, the plan is binding on a broad list of entities, including creditors. The doctrine of res judicata applies in the bankruptcy context. Brown v. Felsen, 442 U.S. 127, 132, 99 S.Ct. 2205, 60 L.Ed.2d 767 (1979). A bankruptcy court’s order of confirmation is treated as a final judgment with res judicata effect. Stoll v. Gottlieb, 305 U.S. 165, 170-71, 59 S.Ct. 134, 83 L.Ed. 104 (1938); see also Travelers Indem. Co. v. Bailey, 557 U.S. 137, 138-39, 129 S.Ct. 2195, 174 L.Ed.2d 99 (2009) (holding that once an order becomes final, it is res judicata as to parties and those in privity with them). In In re Ampace Corp., the court stated that “a confirmed plan acts as a binding contract on all the parties thereto.” 279" }, { "docid": "12620655", "title": "", "text": "In this context, the courts have been understandably skeptical of the litigant’s motives and have often denied standing as to any claim that asserts only third-party rights. Id. at 644; see also Travelers Ins. Co. v. H.K. Porter Co., Inc., 45 F.3d 737, 741 (3d Cir.1995) (adopting the reasoning of Kane). Title 11 U.S.C. § 1109(b) — which provides that “[a] party in interest, including the debtor, the trustee, a creditors’ com mittee, an equity security holders’ committee, a creditor, an equity security holder, or any indenture trustee, may raise and may appear and be heard on any issue in a case under this chapter” — confers broad standing at the trial level. However, courts do not extend that provision to appellate standing: This rule of appellate standing is derived from former section 39(c) of the Bankruptcy Act of 1898, which permitted only a “person aggrieved” to appeal an order of the bankruptcy court. 11 U.S.C. § 67(c) (1976) (repealed 1978). Although the present Bankruptcy Code does not contain any express restrictions on appellate standing, courts have uniformly held that the “person aggrieved” standard is applicable to cases under the Code. Kane, 843 F.2d at 641-42. This court has emphasized that appellate standing in bankruptcy cases is limited to “person[s] aggrieved.” Travelers Ins. Co., 45 F.3d at 741. We consider a person to be aggrieved only if the bankruptcy court’s order “diminishes their property, increases their burdens, or impairs their rights.” In re Dykes, 10 F.3d 184, 187 (3d Cir.1993) (citation omitted). Thus, only those “whose rights or interests are directly and adversely affected pecuniarily” by an order of the bankruptcy court may bring an appeal. Id. (internal quotation marks and citation omitted). The “person aggrieved” standard is more stringent than the constitutional test for standing. In re O’Brien Envtl. Energy, Inc., 181 F.3d 527, 530 (3d Cir.1999). Huff contends that Bruno’s failed to disclose that it had not done a thorough analysis of preference claims before deciding not to pursue them. But Huff itself was aware of this alleged failing at the time and pointed it out to the" } ]

[ { "docid": "22291084", "title": "", "text": "suit in the District Court for the Southern District of New York seeking a declaratory judgment of nullity and negative and affirmative injunctive relief, both temporary and permanent. He asked that a court of three judges be convened pursuant to 28 U.S.C. § 2281 and § 2284 to hear his case. Later he moved for summary judgment and the Attorney General cross-moved to dismiss the complaint both for lack of jurisdiction in failing to present a substantial federal question and also on the merits in failing to state a claim on which relief can be granted. Concluding that the complaint did not state a substantial federal claim, Judge Tyler denied plaintiff’s requests and granted the Attorney General’s motion to dismiss for want of jurisdiction, 259 F.Supp. 290. Green appeals from that order. It is common ground, as we recently reaffirmed in Utica Mutual Ins. Co. v. Vincent, 375 F.2d 129, 130 (2 Cir. 1967), citing many cases, that “[w]hen a complaint for an injunction makes a claim of unconstitutionality which on its face would require a court of three judges * * *, the single district judge should consider whether the claim is substantial and, if he finds it is not, refuse to convoke a court of three judges and dismiss the action.” It is also common ground that such a decision by a district judge is reviewable in the court of appeals and that the criterion is that, as said in California Water Service Co. v. City of Redding, 304 U.S. 252, 255, 58 S.Ct. 865, 866, 82 L.Ed. 1323 (1938): “The lack of substantiality in a federal question may appear either because it is obviously without merit or because its unsoundness so clearly results from the previous decisions of this court as to foreclose the subject.” In the nature of things, these tests cannot be of mathematical precision. Previous decisions do not always foreclose new consideration even though they are directly on point, as the single district judges correctly thought in convoking three-judge courts in the second flag salute case, Barnette v. West Virginia State Board of Election," } ]

[ { "docid": "5484650", "title": "", "text": "hear the matter sitting en banc.” 2 U.S.C. § 437h(a) (1976). One of these questions, as the Ninth Circuit put it, is “the extent to which the breadth of the statutory phrase ‘all questions of constitutionality’ may trench upon a court’s independence in the manner and scope of its decisionmaking.” Id. See Federal Election Commission v. Central Long Island Tax Reform Immediately Committee, 616 F.2d 45, 51 (2d Cir. 1980). There is also some question whether Congress intended to restrict the en banc review provision to actions instituted to challenge the constitutionality of the FECA and instituted by the three types of plaintiffs listed in the first sentence of section 437h(a). See Bread Political Action Committee v. Federal Election Commission, 591 F.2d 29, 33 (7th Cir. 1979) (holding that the en banc review provision applies only to actions “brought expressly to challenge the [FECA] on constitutional grounds,” but that the provision may be invoked by plaintiffs other than those of the three named types). The sparse legislative history of section 437h provides little guidance for the resolution of these issues. The Ninth Circuit interpreted the legislative history as follows: [Section 437h] originated as an amendment offered by Senator Buckley to expedite authoritative Supreme Court determination of the Act’s constitutionality. The en banc requirement apparently was deemed to be an expediting mechanism due to a misconception that an en banc hearing was a matter of right following a hearing by a panel of three appellate judges; to require an initial en banc hearing was thus thought to eliminate a merely “preliminary” three-judge hearing. . .. That proposition is, of course, inaccurate: en banc hearings are discretionary. See Fed.R.App.P. 35(a). It has been suggested that the effect of an en banc requirement may be to impede rather than expedite. We are not prepared to say that has occurred in the instant case, but if mandatory en banc hearings were multiplied, the effect on the calendars of this court as to such matters and as to all other business might be severe and disruptive. California Medical Association, at-(citations omitted). We agree with the" }, { "docid": "5595985", "title": "", "text": "PER CURIAM: Appellant, a long time federal employee who was mandatorily retired at age 70 under the requirements of 5 U.S. C. § 8335, brought suit in the District Court seeking to enjoin the enforcement of that statute on the ground of its alleged unconstitutionality. He moved the District Court to convene a three-judge court under 28 U.S.C. §§ 2281 and 2284. The District Court denied that motion (and simultaneously dismissed the complaint) because it thought that the complaint raised no substantial constitutional issue; and the only question before us on this appeal is the correctness of that determination. The Supreme Court has made abundantly clear that a three-judge district court must be convened if the constitutional issues raised have a substantiality which takes them outside such characterizations as “obviously without merit,” “wholly insubstantial, [or] legally speaking nonexistent,” or unless “unsoundness so clearly results from previous decisions of this Court as to foreclose the subject.” See California Water Service Co. v. City of Redding, 304 U.S. 252, 255, 58 S.Ct. 865, 867, 82 L.Ed. 1323 (1938), and Bailey v. Patterson, 369 U. S. 31, 33, 82 S.Ct. 549, 7 L.Ed.2d 512 (1962). In appellant’s ease, Cleveland Board of Education v. LaFleur, 414 U.S. 632, 657, 94 S.Ct. 791, 39 L.Ed.2d 52 (Rehnquist, J., dissenting) (decided January 21, 1974) — a decision which was not available to the District Court at the time of its ruling — is ample indication that appellant’s challenge in this instance presents a constitutional issue of sufficient substance as to warrant consideration by a three-judge court. The District Court’s orders (1) denying appellant’s motion to convene a three-judge court and (2) granting ap-pellee’s motion to dismiss with prejudice, are reversed; and the case is remanded to the District Court with instructions to convene a three-judge court. . At the time of appellant’s forced retirement, he was continued in governmental service as a re-employed annuitant in the same job he had been performing, with the same total number of dollars being received by him each month from the Government. Since, contrarily, the complaint appeared to have alleged" }, { "docid": "13386160", "title": "", "text": "committee in an appropriate state court to the end that the balance of her property still in the hands of the Committee will be restored to her as soon as possible. See Affidavit of Edward Pious, Esq., December 15, 1969, p. 4; Stipulation of the Parties, February 3, 1970, If 3. I Three-Judge Court Requirements The single district judge before whom an application is made to convene a three-judge court must determine Whether a substantial constitutional question has been raised with respect to the state statute, whether the complaint sets forth a basis for equitable relief and whether the other requirements for a three-judge court are met. See Idlewild Bon Voyage Liquor Corp. v. Epstein, 370 U.S. 713, 82 S.Ct. 1294, 8 L.Ed.2d 794 (1962); Ex Parte Poresky, 290 U.S. 30, 54 S.Ct. 3, 78 L.Ed. 152 (1933); Green v. Board of Elections, 380 F.2d 445 (2d Cir. 1967), cert. denied 389 U.S. 1048, 88 S.Ct. 768, 19 L.Ed.2d 840 (1968); American Commuters Assoc., Inc. v. Levitt, 405 F.2d 1148 (2d Cir. 1969). If plaintiff fails to carry her burden in this regard, a three-judge court must be denied. A. Substantiality of the Constitutional Question If the complaint fails to raise a substantial federal question with respect to a state statute, a three-judge court must be denied and the action dismissed. See Swift & Co. v. Wickham, 382 U.S. Ill., 86 S.Ct. 258, 15 L.Ed.2d 194 (1965). The Supreme Court has stated that “[t]he lack of substantiality in a federal question may appear either because it is obviously without merit or because its unsoundness so clearly results from the previous decisions of this court as to foreclose the subject.” California Water Service Co. v. City of Redding, 304 U.S. 252, 255, 58 S.Ct. 865, 867, 82 L.Ed. 1323 (1938). In rejecting the view “that, except ‘in an open and shut case,’ it is better to ‘constitute a 3-Judge Court, and allow that court to determine initially’ whether it should have been constituted,” our circuit has stated: “An occasional reversal because a court of appeals will disagree with respect to the" }, { "docid": "15220391", "title": "", "text": "set forth by Judge Bonsai at 279 F.Supp. 43, 44, fn. 2, and 45. The Second Circuit has held that a single district judge may dismiss a petition for a three-judge court for want of jurisdiction. Utica Mutual Insurance Company v. Vincent, 375 F.2d 129, 130-131, n. 1 (2 Cir.), cert. denied, 389 U.S. 839, 88 S.Ct. 63, 19 L.Ed.2d 102 (1967); Green v. Board of Elections of the City of New York, 380 F.2d 445 (2 Cir. 1967), cert. denied, 389 U.S. 1048, 88 S.Ct. 768, 19 L.Ed.2d 840 (1968); Offerman v. Nitkowski, 378 F.2d 22 (2 Cir. 1967); Hall v. State of New York, 359 F.2d 26, 27 (2 Cir.), cert. denied, 385 U.S. 879, 87 S.Ct. 161, 17 L.Ed.2d 106 (1966). Quoting from California Water Service Co. v. City of Redding, 304 U.S. 252, 58 S.Ct. 865, 82 L.Ed. 1323 (1938), we stated in Green, supra at 448, that “The lack of substantiality in a federal question may appear either because it is obviously without merit or because its unsoundness so clearly results from the previous decisions of this court as to foreclose the subject,” and therefore we held that the test to be applied by a single district judge as to whether to grant a petition for the convocation of a three judge district court is whether the claim of unconstitutionality has substantiality. Thus, if the district judge is of the belief that the petitioner’s claim does not meet that test he may deny it without convoking a three judge court. In the instant case the district judge found that appellants’ claims that the tax and the “benefit” statutes were unconstitutional were not substantial and did not meet the test. We agree with Judge Bonsai. I. 28 U.S.C. § 1341 provides that: “The district courts shall not enjoin, suspend or restrain the assessment, levy or collection of any tax under State law where a plain, speedy and efficient remedy may be had in the court of such State.” Both the State and City of New York provide for remedies. Nevertheless, appellants urge that 28 U.S.C. §" }, { "docid": "15220390", "title": "", "text": "the Fourteenth Amendment. In addition, or in the alternative, relying on those same constitutional provisions, appellants sought a declaratory judgment holding unconstitutional various provisions of the New York laws which afford services and benefits of one kind or another to individuals who reside in New York, for appellants claim they, tax-paying nonresidents of New York, are discriminated against because of their unequal access to the services and the benefits available to New York residents. Plaintiffs moved, pursuant to 28 U.S.C. §§ 2281 and 2284, to have a three judge district court convened. The several New York City officer-defendants moved to dismiss the complaint and the New York State officer-defendants in an opposition affidavit to plaintiffs’ motion also requested the dismissal of the complaint. Judge Bonsai below, in a studied and learned opinion, reported at 279 F.Supp. 40 (1967), denied the plaintiffs’ motion to convene the statutory court and granted the motion to dismiss. We affirm and we find it quite unnecessary to detail again the respective allegations of the several plaintiffs, which allegations are well set forth by Judge Bonsai at 279 F.Supp. 43, 44, fn. 2, and 45. The Second Circuit has held that a single district judge may dismiss a petition for a three-judge court for want of jurisdiction. Utica Mutual Insurance Company v. Vincent, 375 F.2d 129, 130-131, n. 1 (2 Cir.), cert. denied, 389 U.S. 839, 88 S.Ct. 63, 19 L.Ed.2d 102 (1967); Green v. Board of Elections of the City of New York, 380 F.2d 445 (2 Cir. 1967), cert. denied, 389 U.S. 1048, 88 S.Ct. 768, 19 L.Ed.2d 840 (1968); Offerman v. Nitkowski, 378 F.2d 22 (2 Cir. 1967); Hall v. State of New York, 359 F.2d 26, 27 (2 Cir.), cert. denied, 385 U.S. 879, 87 S.Ct. 161, 17 L.Ed.2d 106 (1966). Quoting from California Water Service Co. v. City of Redding, 304 U.S. 252, 58 S.Ct. 865, 82 L.Ed. 1323 (1938), we stated in Green, supra at 448, that “The lack of substantiality in a federal question may appear either because it is obviously without merit or because its unsoundness so clearly" }, { "docid": "7776300", "title": "", "text": "Morrin, 289 U.S. 103, 105 [53 S.Ct. 549, 550, 77 L.Ed. 1062]. The question may be plainly unsubstantial, either because it is “obviously without merit” or because “its unsoundness so clearly results from the previous decisons of this court as to foreclose the subject and leave no room for the inference that the question sought to be raised can be the subject of controversy.” Ex parte Poresky, 290 U.S. 30, 32, 54 S.Ct. 3, 4, 78 L.Ed. 152 (1933). Swift & Co. v. Wickham, 1965, 382 U.S. 111, 115, 86 S.Ct. 258, 15 L.Ed.2d 194. We readily observe that prior decisions of the federal judiciary do not foreclose consideration of plaintiffs’ equal protection argument. See McInnis v. Shapiro, 293 F.Supp. 327, (N.D.Ill.1968), McInnis v. Ogilvie, aff’d 394 U.S. 322, 89 S.Ct. 1197, 22 L.Ed.2d 308; Burruss v. Wilkerson, 301 F.Supp. 1237 (W.D.Va.1968) (single judge convening three-judge court). Thus, the narrow question for our determination is whether plaintiffs’ claim is “obviously without merit.” 290 U.S. at 32, 54 S.Ct. 3. Cf. California Water Service Co. v. City of Redding, 1938, 304 U.S. 252, 254-255, 58 S.Ct. 865, 82 L.Ed. 1323. The allegations of the complaint posit a fact situation which, under recently elasticized theories of equal protection, give rise to a constitutional claim. Supra, n. 6. We note that this claim is not essentially frivolous or wholly lacking in merit. Regardless of our personal reactions to the merits of plaintiffs’ position and regardless of the novelty of the theories which support their position, we cannot say that their view of the taxing scheme is beyond challenge. We do not sit as a three-judge district court to determine whether plaintiffs’ claim is good or bad on the merits. All we decide is that the claim is such an arguable one as to be “substantial” within the Poresky definition. Cf. Schneider v. Rusk, 1963, 372 U.S. 224, 225, 83 S.Ct. 621, 9 L.Ed.2d 695. We express no view as to the materiality or applicability of Rule 23 of the Federal Rules of Civil Procedure. Those questions are not ripe for appellate review until" }, { "docid": "11151740", "title": "", "text": "There is no evidence to show that the respondents have exhausted their administrative remedies to secure these claimed benefits. If it can be shown that all statutory procedures have been followed for obtaining the said certification procedure, and that the Board, in its official capacity has refused to act, then will be the proper time for the respondents to come into court in an action to secure the desired relief. So far as this proceeding is concerned, the situation in which respondents find themselves is merely a factor addressed to the equitable discretion of the Court. It is the opinion of this Court that such circumstances alone are not sufficient to outweigh, the policy inherent in the statutory provisions invoked by the petitioner in its plea for injunctive relief. In conjunction with their cross-complaint for an injunction, the respondents have requested that a three judge court be convened under authority of Section 2282 of Title 28 U.S.C.A. Such a special proceeding is inapplicable in the present case. It is well settled that a request for a three judge court need not be granted unless a substantial claim of unconstitutionality is presented in the complaint. California Water Service Co. v. Redding, 304 U.S. 252, 58 S.Ct. 865, 82 L.Ed. 1323; Harvey v. Early, 4 Cir., 160 F.2d 836; Rok v. Legg, D.C., 27 F.Supp. 243. It is the duty of the district judge to whom the request is addressed to ascertain whether such a substantial federal question has been presented. The lack of substantiality in a federal question may appear either because it is obviously without merit or because its unsoundness so clearly results from the previous decisions of the Supreme Court. California Water Service Co. v. Redding, supra. With regard to the specific question involved here, the Supreme Court has ruled that a suit challenging the validity of regulations and administrative action under a statute raises no substantial question of constitutional validity as to the statute itself. It does not appear to have been the intention of Congress that the statute should apply when administrative action and not the Act" }, { "docid": "20795870", "title": "", "text": "a legal action against their husbands as required by subsections 4 through 7 of §49.19(4) (d). II. JURISDICTION Jurisdiction is asserted under 42 U.S. C. § 1983 and 28 U.S.C. § 1343(3) and (4). Although we do not decide the merits of plaintiffs’ constitutional claims regarding § 49.19(4) (d), we must, as a threshold matter, consider their jurisdictional sufficiency. The oft articulated standard as to the sufficiency of a federal constitutional claim with respect to founding jurisdiction in a statutory court of three judges is that the constitutional claim must not be insubstantial. Utica Mutual Insurance Co. v. Vincent, 375 F.2d 129, 130-131 (2d Cir. 1967), and cases cited therein. The Supreme Court has held that: “ * * * The 0f substantiality in a federal question may appear either because it is obviously without merit or because its unsoundness so clearly results from the previous decisions of this Court as to foreclose the subject. * * *” California Water Service Co. v. City of Redding, 304 U.S. 252, 255, 58 S.Ct. 865, 867, 82 L. Ed. 1323 (1938). If plaintiffs’ constitutional claims were limited to asserted deprivations of equal protection of the laws in violation of the Fourteenth Amendment, there would be considerable question as to their “substantiality.” The plaintiffs commenced the instant action the day after the Supreme Court decided the case of Dandridge v. Williams, 397 U.S. 471, 90 S.Ct. 1153, 25 L.Ed.2d 491 (1970). However, plaintiffs also raise constitutional claims based upon due process and the rights of privacy and marriage. Although courts may differ as to its precise constitutional contours, it is clear that one of the fundamental freedoms protected and secured by the constitution is the right of privacy, and, more specifically, after Griswold v. Connecticut, 381 U.S. 479, 85 S.Ct. 1678, 14 L.Ed.2d 510 (1965), it is clear that marital privacy is a right enjoying constitutional protection. Section 49.19(4) (d) requires an AFDC mother to take certain legal actions against her husband in order to become eligible to receive the bare necessities of life for her children. These legal actions required of an" }, { "docid": "22288633", "title": "", "text": "aff’d sub nom. Clark v. Kimmitt, 431 U. S. 950 (1977); Martin Tractor Co. v. Federal Election Comm’n, 200 U. S. App. D. C. 322, 627 F. 2d 375, cert, denied sub nom. National Chamber Alliance for Politics v. Federal Election Comm’n, 449 U. S. 954 (1980). Moreover, the Federal Election Campaign Act is not an unlimited fountain of constitutional questions, and it is thus reasonable to assume that resort to § 437h will decrease in the future. Under these circumstances, we do not believe that § 437h poses any significant threat to the effective functioning of the federal courts. While we thus decline to adopt the Commission’s view, we believe that its concerns about the potential abuse of §437h are in large part answered by the other restrictions on the use of that section. The unusual procedures embodied in this section are, at the very least, circumscribed by the constitutional limitations on the jurisdiction of the federal courts. Buckley v. Valeo, 424 U. S., at 11. A party seeking to invoke § 437h must have standing to raise the constitutional claim. Ibid. Furthermore, § 437h cannot properly be used to compel federal courts to decide constitutional challenges in cases where the resolution of unsettled questions of statutory interpretation may remove the need for constitutional adjudication. Federal Election Comm’n v. Central Long Island Tax Reform Immediately Committee, supra, at 51-53. See Nixon v. Administrator of General Services, 433 U. S. 425, 438 (1977); Thorpe v. Housing Authority, 393 U. S. 268, 283-284 (1969); Crowell v. Benson, 285 U. S. 22, 62 (1932). Moreover, we do not construe § 437h to require certification of constitutional claims that are frivolous, see, e. g., Gifford v. Congress, 452 F. Supp. 802 (ED Cal. 1978); cf. California Water Service Co. v. City of Redding, 304 U. S. 252, 254-255 (1938) (per curiam), or that involve purely hypothetical applications of the statute. See, e. g., Clark v. Valeo, supra; Martin Tractor Co. v. Federal Election Comm’n, supra; 627 F.2d, at 384-386, 388-390. Finally, as a practical matter, immediate adjudication of constitutional claims through a §" }, { "docid": "11135449", "title": "", "text": "from the right asserted in this case. King v. Smith, 392 U.S. 309, 312, n. 3, 88 S.Ct. 2128, 20 L.Ed.2d 1118 (1968); Rosado v. Wyman, 397 U.S. 397, 90 S.Ct. 1207, 25 L.Ed.2d 442 (1970). In an action to enjoin enforcement of a state statute based on 42 U.S.C. § 1983 with jurisdiction claimed under 28 U.S.C. § 1343(3) and (4), where the rights, privileges, or immunities sought to be redressed are those secured by the equal protection clause of the Fourteenth Amendment, a three-judge district court has jurisdiction only if the constitutional claim is not insubstantial. Solman v. Shapiro, 300 F.Supp. 409 (D.Conn.1969), aff’d per curiam 396 U.S. 5, 90 S.Ct. 25, 24 L.Ed.2d 5 (1969); Doe v. Shapiro, 302 F.Supp. 761 (D.Conn.1969); Utica Mutual Insurance Co. v. Vincent, 375 F.2d 129 (2d Cir. 1967). The criterion of substantiality of the constitutional claim, as indicated by the Utica court, is found in the Supreme Court’s statement: “The lack of substantiality in a federal question may appear either because it is obviously without merit or because its unsoundness so clearly results from the previous decisions of this Court as to foreclose the subject.” California Water Service Co. v. City of Redding, 304 U.S. 252, 255, 58 S.Ct. 865, 867, 82 L.Ed. 1323 (1938). Plaintiffs claim that the reduction in AFDC payments without a like reduction in payments to Aid to the Blind, Aid to the Permanently and Totally Disabled, and Old Age Assistance program recipients is a violation of the equal protection clause of the Constitution. We find that this claim is neither obviously without merit nor an issue foreclosed by prior Supreme Court decisions. Two recent three-judge court decisions have considered at length very similar equal protection claims. Lampton v. Bonin, 299 F.Supp. 336 (E.D.La.1969), and Jefferson v. Hackney, 304 F.Supp. 1332 (N.D.Tex.1969). While in both cases it was held that reductions in payments to AFDC recipients without commensurate reductions to other welfare recipients did not violate the equal protection clause, the fact that the courts found the equal protection claim to be not insubstantial for purposes of" }, { "docid": "13386161", "title": "", "text": "fails to carry her burden in this regard, a three-judge court must be denied. A. Substantiality of the Constitutional Question If the complaint fails to raise a substantial federal question with respect to a state statute, a three-judge court must be denied and the action dismissed. See Swift & Co. v. Wickham, 382 U.S. Ill., 86 S.Ct. 258, 15 L.Ed.2d 194 (1965). The Supreme Court has stated that “[t]he lack of substantiality in a federal question may appear either because it is obviously without merit or because its unsoundness so clearly results from the previous decisions of this court as to foreclose the subject.” California Water Service Co. v. City of Redding, 304 U.S. 252, 255, 58 S.Ct. 865, 867, 82 L.Ed. 1323 (1938). In rejecting the view “that, except ‘in an open and shut case,’ it is better to ‘constitute a 3-Judge Court, and allow that court to determine initially’ whether it should have been constituted,” our circuit has stated: “An occasional reversal because a court of appeals will disagree with respect to the substantiality of the question is far less wasteful of judicial resources. * * * the best course for this circuit is for single district judges to continue conscientiously to pass upon the substantiality of constitutional attacks on state statutes * * * and, where this court unanimously agrees that the attack is without merit, for us not to be finical on whether the lack of merit was obvious.” Heaney et al. v. Allen et al., 425 F.2d 869, 872 (2d Cir, 1970) (citations omitted). 1. Due process Plaintiff’s contention that the appointment of a committee to manage property pursuant to the procedure provided by § 102 (and former § 1374 under which her committee was appointed) deprived her of the right to control her property without due process of law, we find to be without substantial merit. Notice and a judicial hearing before a court of law affording her an opportunity to be heard (she being a widow and the only known interested party) satisfies the essential requisites of due process and fundamental fairness. See" }, { "docid": "22288634", "title": "", "text": "have standing to raise the constitutional claim. Ibid. Furthermore, § 437h cannot properly be used to compel federal courts to decide constitutional challenges in cases where the resolution of unsettled questions of statutory interpretation may remove the need for constitutional adjudication. Federal Election Comm’n v. Central Long Island Tax Reform Immediately Committee, supra, at 51-53. See Nixon v. Administrator of General Services, 433 U. S. 425, 438 (1977); Thorpe v. Housing Authority, 393 U. S. 268, 283-284 (1969); Crowell v. Benson, 285 U. S. 22, 62 (1932). Moreover, we do not construe § 437h to require certification of constitutional claims that are frivolous, see, e. g., Gifford v. Congress, 452 F. Supp. 802 (ED Cal. 1978); cf. California Water Service Co. v. City of Redding, 304 U. S. 252, 254-255 (1938) (per curiam), or that involve purely hypothetical applications of the statute. See, e. g., Clark v. Valeo, supra; Martin Tractor Co. v. Federal Election Comm’n, supra; 627 F.2d, at 384-386, 388-390. Finally, as a practical matter, immediate adjudication of constitutional claims through a § 437h proceeding would be improper in cases where the resolution of such questions required a fully developed factual record. See, e. g., Anderson v. Federal Election Comm’n, supra; Martin Tractor Co. v. Federal Election Comm’n, supra, at 325, 627 F. 2d, at 378; Mott v. Federal Election Comm’n, 494 F. Supp. 131, 135 (DC 1980). These restrictions, in our view, enable a district court to prevent the abuses of § 437h envisioned by the Commission. None of these considerations, however, pertain to this case. At least the individual appellants have standing to bring this challenge. See n. 6, supra. Additionally, appellants here expressly challenge the statute on its face, and there is no suggestion that the statute is susceptible to an interpretation that would remove the need for resolving the constitutional questions raised by appellants. Finally, as evidenced by the divided en banc court below, the issues here are neither insubstantial nor settled. We therefore conclude that this case is properly before us pursuant to § 437h. Specifically, this Court upheld the $1,000 limit on" }, { "docid": "21973817", "title": "", "text": "that the question has not been decided by the Supreme Court. We cannot agree. Irrespective of any prior decision by the Supreme Court, plaintiff’s complaint must raise a substantial constitutional question in order to justify the three-judge court procedure. Siminoff v. Murff, 164 F.Supp. 34 (S.D.N.Y.1958), rev’d on other grounds, Siminoff v. Esperdy, 267 F.2d 705 (2d Cir. 1959). The Supreme Court has laid down two standards by which the substantiality of a constitutional question may be judged: “The lack of substantiality in a federal question may appear either because it is obviously without merit or because its unsoundness so clearly results from the previous decisions of this court as to foreclose the subject.” California Water Service Co. v. City of Redding, supra, 304 U.S. at 255, 58 S.Ct. at 867, 82 L.Ed. 1323. We think the lack of substantiality in the question presented by plaintiff’s complaint is evident under both tests. First, we note that 15 U.S.C. § 15 is not a new statute, having been enacted in its present form in 1914. The earlier provisions date back to 1890. Yet in spite of the age of the provisions, counsel has not cited, and our research has not disclosed any decision squarely passing on the constitutionality of treble damages. This is not through a dearth of antitrust litigation — on the contrary, the books are full of cases. A hasty survey located some sixty opinions of the Supreme Court in treble damage actions, and there are hundreds of reported cases from district courts and courts of appeal. In addition to the antitrust cases, there have been many cases under 15 U.S.C. § 72, 17 U.S.C. §§ 1 and 101, 35 U.S.C. § 284, 38 U.S.C. § 1822 and 45 U.S.C. § 83, all of which permit treble damage actions for violations of other federal statutes. In the hundreds of cases under these statutes, no one has apparently thought to challenge the constitutionality of treble damages. This is perhaps attributable to the fact that treble damage suits have a long history in the common law. Treble damage actions originated in" }, { "docid": "11562639", "title": "", "text": "of due process, she asks for a declaratory judgment and a permanent injunction enjoining the defendant from “modifying, suspending or terminating public welfare assistance prior to a fair hearing.” Jurisdiction The plaintiff relies upon 42 U.S.C. § 1983 for a cause of action and upon 28 U.S.C. § 1343(3) for this court’s jurisdiction. Since the plaintiff seeks an injunction restraining the enforcement of a state statute, she has requested the convocation of a three-judge district court under 28 U.S.C. §§ 2281, 2284. It is now well settled, see Green v. Board of Elections, etc., 380 F.2d 445, 448 (2d Cir. 1967), cert. denied, 389 U.S. 1048, 88 S.Ct. 768, 19 L.Ed.2d 840 (1968), quoting Utica Mut. Ins. Co. v. Vincent, 375 F.2d 129, 130 (2d Cir.), cert. denied, 389 U.S. 839, 88 S.Ct. 63, 19 L.Ed.2d 102 (1967), that “[w]hen a complaint for an injunctio'n makes a claim of unconstitutionality which on its face would require a court of three judges * * * the single district judge should consider whether the claim is substantial and, if he finds it is not, refuse to convoke a court of three judges and dismiss the action.” The threshold question, therefore, is whether there is a lack of substantiality in the federal question presented “either because it is obviously without merit or because its unsoundness so clearly results from the previous decisions of [the Supreme] Court as to fore close the subject.” California Water Serv. Co. v. City of Redding, 304 U.S. 252, 255, 58 S.Ct. 865, 867, 82 L.Ed. 1323 (1938). When the question is what process is due, the answer must depend on the conflicting interests of the parties and the circumstances of the particular case. E. g., Dixon v. Alabama State Bd. of Educ., 294 F.2d 150 (5th Cir.), cert. denied, 368 U.S. 930, 82 S.Ct. 368, 7 L.Ed.2d 193 (1961). Where the broad claim is made that due process requires a hearing prior to decision “the specific context of fact and decision out of which the question arises must be set forth.” FCC v. WJR, 337 U.S. 265, 267," }, { "docid": "5484649", "title": "", "text": "under which the panel presented this case to the en banc court, is an extraordinary piece of legislation. Subsection (a) provides: The Commission, the national committee of any political party, or any individual eligible to vote in any election for the office of President of the United States may institute such actions in the appropriate district court of the United States, including actions for declaratory judgment, as may be appropriate to construe the constitutionality of any provision of this Act. The district court immediately shall certify all questions of constitutionality of this Act to the United States court of appeals for the circuit involved, which shall hear the matter sitting en banc. As the Ninth Circuit, sitting en banc, recently observed, “[vjarious difficult questions can be raised about the meaning and constitutionality,” California Medical Association v. Federal Election Commission No. 79-426 (9th Cir. May 23, 1980) (en bane), of the section’s requirement that “all questions of constitutionality of this Act” be heard by “the United States court of appeals for the circuit involved, which shall hear the matter sitting en banc.” 2 U.S.C. § 437h(a) (1976). One of these questions, as the Ninth Circuit put it, is “the extent to which the breadth of the statutory phrase ‘all questions of constitutionality’ may trench upon a court’s independence in the manner and scope of its decisionmaking.” Id. See Federal Election Commission v. Central Long Island Tax Reform Immediately Committee, 616 F.2d 45, 51 (2d Cir. 1980). There is also some question whether Congress intended to restrict the en banc review provision to actions instituted to challenge the constitutionality of the FECA and instituted by the three types of plaintiffs listed in the first sentence of section 437h(a). See Bread Political Action Committee v. Federal Election Commission, 591 F.2d 29, 33 (7th Cir. 1979) (holding that the en banc review provision applies only to actions “brought expressly to challenge the [FECA] on constitutional grounds,” but that the provision may be invoked by plaintiffs other than those of the three named types). The sparse legislative history of section 437h provides little guidance for" }, { "docid": "16143141", "title": "", "text": "certification under § 30110 is to the en banc court of appeals, which has the authority to overrule not only a panel’s decision but also a previous en banc decision. See id. Suppose instead that “settled law” refers only to decisions of the Supreme Court. See, e.g., Cal. Water Serv. Co. v. City of Redding, 304 U.S. 252, 255, 58 S.Ct. 865, 82 L.Ed. 1323 (1938) (per cu-riam) (“The lack of substantiality in a federal question may appear ... because its unsoundness so clearly results from the previous decisions of this Court as to foreclose the subject.” (italics added)). This would make some sense, because the en banc court must adhere to a Supreme Court decision that is directly on point even if there are persuasive arguments against it. See Rodriguez de Quijas v. Shearson/Am. Express, Inc., 490 U.S. 477, 484, 109 S.Ct. 1917, 104 L.Ed.2d 526 (1989). From this, one might conclude that under § 30110, a district court should decline to certify a question if the Supreme Court precedent is so “settled” that the plaintiff would surely lose in the en banc court. See, e.g., Khachaturian v. Fed. Election Comm’n, 980 F.2d 330 (5th Cir.1992) (en banc) (per curiam); Goland v. United States, 903 F.2d 1247, 1257-58 (9th Cir.1990). But what may appear to be “settled” Supreme Court constitutional law sometimes turns out to be otherwise. McCutcheon and Citizens United v. Fed. Election Comm’n, 558 U.S. 310, 130 S.Ct. 876, 175 L.Ed.2d 753 (2010), may be seen as examples of the Court disagreeing with “settled law” in the context of federal campaign finance law. The dissenters in both cases certainly thought so. See McCutcheon, 134 S.Ct. at 1465 (Breyer, J., dissenting) (“Today a majority of the Court overrules [the Court’s previous] holding.”); Citizens United, 558 U.S. at 394, 130 S.Ct. 876 (Stevens, J., concurring in part and dissenting in part) (“The majority’s approach to corporate electioneering marks a dramatic break from our past.”). These cases, and others, illustrate an important point not captured in the “settled law” idea: it is entirely possible to mount a non-frivolous argument against" }, { "docid": "2172899", "title": "", "text": "person heretofore or hereafter convicted of any crime, who has been sentenced or committed therefor to one of the houses of refuge, or other reformatories organized under the statutes of the state; nor shall the prohibition to vote in any election extend to any person who shall have received a certificate of good conduct granted by the board of parole pursuant to the provisions of the executive law to remove the disability under this section because of such conviction.” In hearing an application for convention of a statutory three-judge court, the power of a single district judge is limited to the threshold or jurisdictional inquiries of “whether the constitutional question raised is substantial, whether the complaint at least, formally alleges a basis for equitable relief, and whether the case presented otherwise comes within the requirements of the three-judge statute.” Idlewild Bon Voyage Liquor Corp. v. Epstein, 370 U.S. 713, 715, 82 S.Ct. 1294, 1296, 8 L.Ed.2d 794 (1962); accord: Ex parte Poresky, 290 U.S. 30, 54 S.Ct. 3, 78 L.Ed. 152 (1933); Bell v. Waterfront Comm’n, 279 F.2d 853 (2d Cir. 1960); Stuart v. Wilson, 282 F.2d 539 (5th Cir. 1960). Where the single district judge finds that the constitutional question presented lacks the necessary substance, the complaint will be dismissed for lack of jurisdiction over the subject matter. California Water Service v. City of Redding, 304 U.S. 252, 68 S.Ct. 865, 82 L.Ed. 1323 (1938); Ex parte Poresky, supra; Morrison v. California, 238 F.Supp. 22 (S.D.Cal.1964). The Supreme Court has said that the lack of substantiality in a constitutional question may appear “either because it is obviously without merit or because its unsoundness so clearly results from the previous decisions of this court as to foreclose the subject.” California Water Service v. City of Redding, supra, 304 U.S. at 255, 58 S.Ct. at 867; accord, Ex parte Poresky, supra, 290 U.S. at 32, 54 S.Ct. 3. It is true, as plaintiff contends, that the Supreme Court has never directly considered the questions presented by this particular set of facts. It is, however, important to note that, by means of" }, { "docid": "16143140", "title": "", "text": "arising under the predecessor to § 30110. But it is unclear whether the Supreme Court was referring to “settled” questions of constitutional law or statutory interpretation. Earlier in the footnote the Court spoke of cases in which “the resolution of unsettled questions of statutory interpretation may remove the need for constitutional adjudication.” Id. Toward the end of the footnote, the Court mentioned that the parties had not suggested that the statute at issue could be interpreted to avoid the constitutional issue, to which the Court added that the issues in the case were neither “insubstantial nor settled.” Id The Court’s footnote raises several problems. For instance, which court or courts must have “settled” the constitutional issue? Suppose a panel of the court of appeals has rendered a decision contrary to plaintiffs’ claims. Would that constitute settled law? The district courts in the circuit would be bound to follow the appellate panel’s decision, as would other three-judge panels in the circuit. See La-Shawm A. v. Barry, 87 F.3d 1389, 1395 (D.C.Cir.1996) (en banc). Yet district court certification under § 30110 is to the en banc court of appeals, which has the authority to overrule not only a panel’s decision but also a previous en banc decision. See id. Suppose instead that “settled law” refers only to decisions of the Supreme Court. See, e.g., Cal. Water Serv. Co. v. City of Redding, 304 U.S. 252, 255, 58 S.Ct. 865, 82 L.Ed. 1323 (1938) (per cu-riam) (“The lack of substantiality in a federal question may appear ... because its unsoundness so clearly results from the previous decisions of this Court as to foreclose the subject.” (italics added)). This would make some sense, because the en banc court must adhere to a Supreme Court decision that is directly on point even if there are persuasive arguments against it. See Rodriguez de Quijas v. Shearson/Am. Express, Inc., 490 U.S. 477, 484, 109 S.Ct. 1917, 104 L.Ed.2d 526 (1989). From this, one might conclude that under § 30110, a district court should decline to certify a question if the Supreme Court precedent is so “settled” that" }, { "docid": "8508212", "title": "", "text": "are unconstitutional, and a demand that a three-judge court be convened to hear the case. Plaintiff has moved for a preliminary injunction, and defendant has moved for dismissal of the complaint. There is no claim made in the complaint that the administrative procedure for the obtaining of a license does not provide adequate notice or hearing. The effect of the complaint is to make a broadside attack on the constitutionality of a licensing requirement as such. On the allegations of unconstitutionality of the “applicable laws” and the absence of an adequate remedy at law, plaintiff asks this court to initiate the extraordinary procedure provided for in 28 U.S.C. §§ 2281, 2284. The rules for determining whether the three-judge procedure is warranted were laid down in such cases as Bailey v. Patterson, 369 U.S. 31, 82 S.Ct. 549, 7 L.Ed.2d 512 (1962); Phillips v. United States, 312 U.S. 246, 61 S.Ct. 480, 85 L. Ed. 800 (1941); California Water Service Co. v. City of Redding, 304 U.S. 252, 58 S.Ct. 865, 82 L.Ed. 1323 (1938); Ex Parte Poresky, 290 U.S. 30, 31-32, 54 S.Ct. 3, 78 L.Ed. 152 (1933). The three-judge requirement is a technical one and is to be construed narrowly. Phillips v. United States, supra, 312 U.S. at 251, 61 S.Ct. 480. “It is * * * the duty of a district judge, to whom an application for an injunction restraining the enforcement of a state statute or order is made, to scrutinize the bill of complaint to ascertain whether a substantial federal question is presented * * California Water Service Co. v. City of Redding, supra, 304 U.S. at 254, 58 S.Ct. at 866. That a federal question lacks substance “may appear either because it is obviously without merit or because its unsoundness so clearly results from the previous decisions of this [Supreme] court as to foreclose the subject.” Id. at 255, 58 S.Ct. at 867. See also Flamm v. Hughes, 329 F.2d 378 (2 Cir. 1964). Applying these standards to this case, plaintiff has not shown any circumstances which would necessitate the convening of a three-judge court." }, { "docid": "15560612", "title": "", "text": "the enforcement of any state statute on the ground that the statute is unconstitutional. In their complaint at page 17, paragraph 40, the plaintiffs allege that a state statute is unconstitutional. However, the plaintiffs, in their motion for a preliminary injunction, do not ask that this statute be declared unconstitutional or that its use be enjoined. Rather, they ask that the state and federal officials be made to comply with federal statutes, 23 U.S.C. § 501 et seq. A substantial constitutional question, in regard to a state statute, is required before a three-judge court will be convened. Swift & Co. v. Wickham, 382 U.S. 111, 86 S.Ct. 258, 15 L.Ed.2d 194 (1965). In my opinion, no constitutional issue is raised in the motion for a preliminary injunction, and, therefore, a three-judge court should not be convened to hear such motion. There is a further motion for a three-judge court to be convened to hear the merits of the case. The second claim in the plaintiffs’ complaint, and the demand for relief under that claim, clearly indicate that plaintiffs seek to have Wis.Stat. § 32.19 declared unconstitutional. The statute in question allows the state to pay certain additional items of compensation to persons displaced as a result of eminent domain proceedings if they are landowners or tenants under a lease longer than three years. The plaintiffs, who fit in neither category, charge that the statute creates arbitrary and discriminatory classifications in violation of the right to equal protection under the fourteenth amendment; and further, that they are deprived of property without due process of law or just compensation under the fifth and fourteenth amendments. In my opinion, the constitutional challenges by the plaintiffs to Wis.Stat. § 32.19 do not qualify as substantial under the test of Swift & Co., supra,. In California Water Service Co. v. City of Redding, 304 U.S. 252, 255, 58 S.Ct. 865, 867, 82 L.Ed. 1323 (1938), the court said: “The lack of substantiality in a federal question may appear either because it is obviously without merit or because its unsoundness so clearly results from the previous" } ]

[ { "docid": "11127528", "title": "", "text": "persuasive. The United States was not within the scope of the intention of the legislature. • However, this enactment contains a clear recognition ■of the common law principles relating to responsibility for the maintenance of' a ■canal or ditch used by a carrier of water. The common law principles were therefore not modified by statute but exist today for the governments not only of the corporations organized under that Act but also for all other purposes in a like situation. The rule relating to private parties in the State of Oregon is the pole star here. A review of the various theories of liability, as noticed by the Supreme Court of Oregon, will therefore be 'helpful. That tribunal has from an- early period of its history given definite approval to the doctrine of the Rylands case in a series of decisions. So emphatic has such approval been that Oregon is usually noted in the texts, law review articles and compilations as one of the states accepting that doctrine. It is to be noted that there is probably no opinion in which that court squarely applied the principle. In Esson v. Wattier, 25 Or. 7, 34 P. 756, the court refused an injunction against the construction of the dam, which it was claimed would cause water to seep upon the premises of plaintiff. Such an injury the court held would be within the rationale of the Rylands case, which is cited and quoted. In Mallett v. Taylor, 78 Or. 203, 152 P. 873, which was also an injunction case against percolation and minor overflow from an irrigation ditch, the injunction was granted. The court there cited the Esson case and cited and quoted the Rylands case. Mr. Justice McBride, speaking for the court, quoted from the laws of Hammurabi as follows: “ ‘If a man neglect to strengthen his dyke and do not strengthen it, and a break be made in his dyke and the water carry away the farm land, the man in whose dyke the break has been: made shall restore the grain which he has damaged. If he" } ]

[ { "docid": "11127535", "title": "", "text": "extraordinary occasions-, so far as skilled human foresight can determine, and with that reasonable degree of care as is comtnensurate with the nature and magnitude o-f the undertaking, in order to protect the lives and property of those below.” Rylands -v. Fletcher, supra, and the Oregon decisions following the doctrine are cited. The duty Of -one bringing water upon premises under 'his exclusive -control, say the court, and storing it in an elevated position, was -proportionate to the injury which might result if it escaped. The doctrine of res ipsa loquitur was applicable, the court decided, because negligence was proved by the bursting of the tank. Since a high degree of danger calls for a very high degree o-f care, inspection by untrained persons was no defense, but that the examination by a highly trained tank expert might be required. This Court holds that the Oregon Supreme Court, if faced with the exact facts here, would apply the rule of absolute liability. Since the pretrial order is sufficiently broad in the questions propounded to cover any -and all of these theories of liability mentioned in the opinion, we need not determine whether application is made of the absolute responsibility of the manager of an elemental force or because of a trespass quare clausum -fregit or because of the theory of an action on the case for negligence, reinforced by the necessity of explaining how structures erected by defendant and under its control happened to break when subjected only to normal tensions and strains, whi-c-h these were built to withstand. The evidence would clearly bring this case in the purview o-f the Rylands case. Here there was a stream of water —36 miles long — flowing 450 second feet of water in an earthen canal through a structure which was incapable of -holding the -force thereof. Defendant not only brought the water into an elevated position above the lands- -of p-laintiff, but -continued to have it flow there, although no sufficient guard was placed to prevent the water from flowing onto the lands of plaintiff. If then this doctrine, so often" }, { "docid": "7409248", "title": "", "text": "of laws principles of the forum state. Klaxon Co. v. Stentor Elec. Mfg. Co., 313 U.S. 487, 61 S.Ct. 1020, 85 L.Ed. 1477 (1941), and Erie R. Co. v. Tompkins, 304 U.S. 64, 74-77, 58 S.Ct. 817, 82 L.Ed. 1188 (1938). Likewise, the characterization of an action must be made in accordance with the law of the forum. Hall v. Copco Pacific, Ltd., 224 F.2d 884, 885 (CA9 1955); Restatement, 2d, Conflict of Laws § 124. 'For the purposes of characterization, we discern no valid distinction between an action by a citizen of a foreign state and one by a citizen of the forum. If this were an action by an Oregon resident, the Oregon courts would undoubtedly characterize the action as one in tort, as distinguished from one on contract. The forum — not the plaintiff’s place of residence — determines how an action is characterized. Because appellant chose Oregon as his forum, he is entitled to maintain his strict liability in tort action against appellee. It follows that the district court was in error when it characterized the action as one for breach of contract. WHICH STATE’S SUBSTANTIVE LAW APPLIES? A. Having concluded that the action should be characterized as one in tort, we proceed to a determination of which state’s law should be applied to the record before us. Should it be the substantive law of Kansas, Washington, or Oregon? Oregon, a neutral forum, has adopted, with minor modifications, the doctrine of strict liability in tort as embodied in Restatement, 2d, Torts § 402A. Heaton v. Ford Motor Co., 248 Or. 467, 435 P.2d 806 (1967). The identical doctrine under the same Restatement section, has been adopted by the Washington courts. Ulmer v. Ford Motor Co., 75 Wash.2d 522, 452 P.2d 729 (1969). Consequently, there is no conflict on this subject between the laws of Washington and Oregon. However, the courts of the state of Kansas have neither recognized nor rejected § 402A. Until recently, the Oregon Supreme Court was committed to the traditional rule that in tort cases the law of the place of wrong, lex" }, { "docid": "11127532", "title": "", "text": "a flood of a stream, a corporation maintaining a dam could not suddenly release large quantities of water in addition to the flood water from its dam and, if property lower down on the stream were thus inundated, the corporation would be liable. Crawford v. Cobbs & Mitchell Co., 121 Or. 628, 253 P. 3, 257 P. 16. It will thus be seen that the Oregon court recognizes the forms o'f liability which «follow from the adoption of a common law in the «Constitution of the state. In any event, the decisions of the Suipreme «Court of Oregon, with regard to. water, have generally «dealt with percolation, infiltration or minor overlapping of the canal bank. As noted above, there has. ■been no case where recovery has been, sought for a major breach in the bank of a large canal. As a result of this and the tendency upon the part of lawyers modernly to use negligence as the basis for liability in -all cases, this doctrine has usually-been made the basis for recovery. In Enison v. Owyhee Ditch Co., 37 Or. 577, 62 P. 13, it was held, that it was improper to instruct that, if plaintiff cast water on her bwn land, that was contributory negligence to the act of the 'defendant, whereby water •from defendant’s ditch overflowed her ■premises. It is obvious that the action: should have been for trespass, then the-problem would hot have arisen. In Taylor v. Farmers Irrigation Co. 82 Or. 701, 162 P. 973, there was complaint for injunction to seepage from an irrigation, canal. The trial court «held that'the “ditch or canal was properly constructed and had been «kept in good repair, and that the water flowing therein did not seep or escape on plaintiff’s premises.” The evidence-showed none, and the case might have «beeru decided on this basis. However, the court holds negligence must have «been shown.. In a series of percolation or minor overlapping cases, the court has followed that principle. In the case which is most like-the 'facts in the case at bar, as noted' above, the Oregon Supreme «Court" }, { "docid": "11127531", "title": "", "text": "Bailey, who wrote this opinion, also wrote the opinion in the case of Suko v. Northwestern Ice & Cold Storage Co., 166 Or. 557, 113 P.2d 209, wherein damage was claimed on account of the breaking of an elevated tank used for storing water by a lessee, whereby adjoining, premises were invaded by its collapse, and personal injuries resulted. There the court cites Esson v. Wattier, Mallett v. Taylor and Rylands v. Fletcher. Although that case is finally also decided upon principles of the highest degree o'f care and the application o'f res ipsa loquitur. The doctrine which imposes strict liability in case of trespass' has been adopted and followed in the State of Oregon. Where defendant exploded a large blast of powder, throwing debris all over the residence of the plaintiff, it was indicated that there was liability because the plaintiff was frightened and fainted as a result thereof. Salmi v. Columbia & N. R. R. Co., 75 Or. 200, 146 P. 819, L.R.A.1915D, 834. It has also been held that, where there was a flood of a stream, a corporation maintaining a dam could not suddenly release large quantities of water in addition to the flood water from its dam and, if property lower down on the stream were thus inundated, the corporation would be liable. Crawford v. Cobbs & Mitchell Co., 121 Or. 628, 253 P. 3, 257 P. 16. It will thus be seen that the Oregon court recognizes the forms o'f liability which «follow from the adoption of a common law in the «Constitution of the state. In any event, the decisions of the Suipreme «Court of Oregon, with regard to. water, have generally «dealt with percolation, infiltration or minor overlapping of the canal bank. As noted above, there has. ■been no case where recovery has been, sought for a major breach in the bank of a large canal. As a result of this and the tendency upon the part of lawyers modernly to use negligence as the basis for liability in -all cases, this doctrine has usually-been made the basis for recovery. In Enison" }, { "docid": "8553325", "title": "", "text": "71 Or. 521, 136 P. 885, 143 P. 616; Freer v. City of Eugene, 166 Or. 107, 111 P.2d 35. . “Actionable negligence must be predicated upon the breach of a legal duty.” Freer v. City of Eugene, 166 Or. 107, 111 P.2d 85, 87. . Rylands v. Fletcher, L. R., 3 II.L. 330; Tenant v. Goldwin (Eng.), 1 Salk. 360; Suko v. Northwestern Ice Co., 166 Or. 557, 113 P.2d 209. . Brown v. Gessler, 191 Or. 503, 512-513; 230 P.2d 541, 23 A.L.R.2d 815. . «* * # ¡n the so-called ‘blasting’ cases an absolute liability, without regard to fault, has uniformally been imposed by the American courts wherever there has been an actual invasion of property by rocks or debris.” Exner v. Sherman Power Construction Co., 2 Cir., 54 F.2d 510, 513, 80 A.L.R. 686. For the application of this rule in Oregon, see Salmi v. Columbia & Nehalem Railroad Co., 75 Or. 200, 146 P. 819, L.R.A. 1915D, 834; Fisher v. Burrell, 116. Or. 317, 241 P. 40. . See Stapleton’s Case, Y.B. 29 Edw. Ill, 32b, in which the plaintiff sued out a writ of trespass against the defendant for damage done to plaintiff’s premises by water breaking over, or through, a restraining wall or bank which the defendant was bound by custom to maintain. Street, ' Foundation of Legal Liability, 182. As to the duty to maintain a dike or seawall, cf. Terrier of Fleet Lincolnshire, London, published for the British Academy by Humphrey Milford, Oxford University Press, Amen Corner, E.C.1920; Callis on Sewers, Reading before Gray’s Inn (1022), second edition (1085); United States v. Florea, D.C., 68 F.Supp. 307, 372 ff. . Crawford v. Cobbs & Mitchell Co., 121 Or. 628, 253 P. 3, 257 P. 16. . Executive Order No. 9957, 13 F.R, 2503. . General Order No. 4, dated May 17, 1948, P.T.O., 13 F.R.D. 342. . Ure v. United States, D.C., 98 F.Supp. 779; Prosser, Handbook of the Law of Torts, 291 ff. (1941); . McPherson v. Oregon Trunk Railway, 163 Or. 1, 102 P.2d 726. The rocks in this" }, { "docid": "17644663", "title": "", "text": "that the cause after the lengthy period of operation was conjectural. The court predicated its judgment against the government in the present cases primarily upon the principle of absolute liability enunciated in Rylands v. Fletcher, 1 E.R.C. 236, L.R., 3 H.L. 330. That principle, of course, is that one who permits a highly dangerous instrumentality or agency which is located on his property and is under his control to escape and damage another is liable for the damage irrespective of negligence or fault. The court was of the view that the Rylands v. Fletcher doctrine is accepted in Oregon, and language found in a subsequent Oregon decision, Brown v. Gessler, 191 Or. 503, 230 P.2d 541, 23 A.L.R.2d 815, probably confirms the view. At the time of the decision below, Dalehite v. United States, 346 U.S. 15, 73 S.Ct. 956, 97 L.Ed. 1427, had not been decided. In Dalehite the Court held that the Federal Tort Claims Act may be invoked only on a “ ‘negligent or wrongful act or omission’ ” of a government employee. “Absolute liability, of course,” said the Court, “arises irrespective of how the tortfeasor conducts himself; it is imposed automatically when any damages are sustained as a result of the decision to engage in the dangerous activity. The degree of care used in performing the activity is irrelevant to the application of that doctrine. But the statute requires a negligent act. So it is our judgment that liability does not arise by virtue either of United States ownership of an ‘inherently dangerous commodity’ or property, or of engaging in an ‘extrahazardous’ activity.” [Emphasis supplied.] Dalehite v. United States, 346 U.S. at pages 44-45, 73 S.Ct. at page 972. Clearly, then, the basic principle relied on below may not now be applied. Cf. Rayonier, Inc., v. United States, 9 Cir., 225 F.2d 642. Another legal ground to which the trial judge resorted and ably developed was the common law doctrine of liability without fault applicable in cases of trespass upon the property of another. For present purposes, as the judge recognized, this doctrine is indistinguishable from" }, { "docid": "8550834", "title": "", "text": "State Highway Comm’n, 196 Or. 120, 248 P.2d 703 (1952), I can find nothing in that decision which is in any way helpful to plaintiff. True enough, the court held that the immunity created by the constitution of the state of Oregon did not bar that particular action. The waiver, however, was by reason of the peculiar provisions of the state constitution as they applied to that particular action. There, of course, the court was not speaking of immunity under the Eleventh Amendment. For that matter, it would appear that the decision favors the viewpoint of defendants, rather than that of plaintiff. It is there emphasized that no valid distinction can be drawn between state highway departments and other political subdivisions of the state and that they all derive their immunity from the same source, i. e., the state, and being agencies of the state they are, in effect, the state itself. It is clear that the Oregon court permitted the action to proceed against the'Highway Commission,' not on the the ory that 'the Commission was an entity separate, distinct and apart from the state, but on the theory that the Highway Commission was an integral part of the state and that the constitutional provision which impliedly waived immunity on the part of the state, would also be applicable to the Commission. Morrison v. State Highway Comm’n, 225 Or. 178, 357 P.2d 389, 85 A.L.R.2d 203 (1960), cited by defendants, is of little importance. It merely demonstrates the common practice of instituting an action against the state of Oregon, through its State Highway Commission. The theory that the Highway Commission and its members are clothed with the immunity of the state of Oregon was advanced in Lucas v. Banfield, 180 Or, 437, 177 P.2d 244 (1947). The lower court dismissed the action against the state of Oregon, by and through its Highway Commission, consisting of the named members, on the ground that the state of Oregon could not be sued without its consent. The language of the Oregon Supreme Court clearly recognizes that a suit against the Highway Commission, and" }, { "docid": "2693611", "title": "", "text": "error, for in Verex, a case in which the court explicitly acknowledged that Oregon law does not permit the invocation of estoppel to expand insurance coverage beyond the scope of the contract, Dillingham is cited with approval. 816 F.2d at 1302 n. 6. The Ninth Circuit's seemingly incompatible statements of Oregon law are explained by the fact that Oregon law itself is not free of confusion. For example, in ABCD the Oregon Supreme Court insisted on making a distinction between a finding of waiver (a) relating to an act of forfeiture (which may be waived if not asserted) and (b) concerning the applicability of exclusions to deny coverage (which may not be waived to expand the terms of coverage). The apparent contradiction of the Oregon high court's position is captured in the following passage: [E]stoppel cannot be used by the insured to increase the insurer's risk beyond the terms of the policy, but timely disclosure of the reasons for denying a claim can estop the insurer from subsequently denying a claim on other grounds. ABCD, 744 P.2d at 1002. Resisting the temptation to pursue further this niche of Oregon law, an example from this case helps to reconcile the Oregon Supreme Court's position. Within the terms of the policy, the contamination of ground water is covered as a form of injury to the property of a third party. If the contamination of ground water was not third-party property damage, then nothing Hartford could do would make a difference under Oregon law, or California law. See Hartford Fire Ins. Co. v. Spartan Realty Int'l, 196 Cal.App.3d 1320, 1325, 242 Cal.Rptr. 462 (1987) (\"the doctrine of waiver may not be used to reform a contract to create liability for a condition specifically excluded by the terms of the contract.”). Notwithstanding coverage under the terms of the policy, Hartford could avoid paying to remedy the contamination if it could establish that Exclusion F applied. See (insurer has duty to demonstrate applicability of exclusions). Under Oregon law, as stated in Ward and ABCD and reported by the Ninth Circuit in Dillingham, Hartford could waive" }, { "docid": "11127529", "title": "", "text": "is probably no opinion in which that court squarely applied the principle. In Esson v. Wattier, 25 Or. 7, 34 P. 756, the court refused an injunction against the construction of the dam, which it was claimed would cause water to seep upon the premises of plaintiff. Such an injury the court held would be within the rationale of the Rylands case, which is cited and quoted. In Mallett v. Taylor, 78 Or. 203, 152 P. 873, which was also an injunction case against percolation and minor overflow from an irrigation ditch, the injunction was granted. The court there cited the Esson case and cited and quoted the Rylands case. Mr. Justice McBride, speaking for the court, quoted from the laws of Hammurabi as follows: “ ‘If a man neglect to strengthen his dyke and do not strengthen it, and a break be made in his dyke and the water carry away the farm land, the man in whose dyke the break has been: made shall restore the grain which he has damaged. If he be not able to restore the grain, they shall sell him and his goods and the ‘farmers whose grain the water has, carried away shall share in. the results of the sale’: Harper’s Code of Hammurabi, §§ 53,. 54.” [78 Or. 208, 152 P. 875] He also comments: “If we eliminate the severe ‘proceedings supplemental to execu tion,’ the law is practically the same to-day as it was in the year 2250 B. C.” The court, however, found in 'this case that there was proof of negligence and therefore granted an injunction. In Patterson v. Horsefly Irrigation District, 157 Or. 1, 69 P.2d 282, 290, 70 P.2d 36, the court held that instructions in a seepage case, which the court interpreted as making an irrigation district “and all its directors insurers against damage of any and every nature resulting from construction, operation, or maintenance” of the system without regard to negligence, were erroneous. This case; of course, cannot be assumed to set aside the approval given to the Rylands case in 'previous opinions. Mr. Justice" }, { "docid": "7409256", "title": "", "text": "already concluded that appellant’s action is one based on the doctrine of strict liability and that it sounds in tort, we proceed to the limitation of action problem. The crash occurred on January 21, 1972, and the action was filed on April 21, 1972. It is fundamental that the forum court utilizes its own state’s statute of limitations. Restatement, 2d, Conflict of Laws § 142. Oregon is committed to this general rule. Conner v. Spencer, 304 F.2d 485 (CA9 1962); Van Santvoord v. Roethler, 35 Or. 250, 57 P. 628 (1899). Consequently, the Oregon statute, ORS 12.080(4), applies, and the action obviously is not barred under Oregon law. Even if we turn to Oregon’s borrowing statute, ORS 12.260, which provides that in actions between non-residents the cause is barred if it is barred in the state “. . . where the cause of action arose . . .we arrive at the same result. The Washington statute, RCW 4.16.080, gives a litigant three years in which to prosecute his tort action, commencing on the date of injury. Theurer v. Condon, 34 Wash.2d 448, 209 P.2d 311 (1949). A Washington action based on strict liability arises in the state in which the injury occurs. Huddleston v. Angeles Cooperative Creamery, 315 F.Supp. 307 (W.D.Wash.1970). Even if it could be said that the cause of action “arose” in Kansas, the action would not be barred under the applicable Kansas statute on torts, KSA 60-513. This statute also does not begin to run until the injury occurs. Kitchener v. Williams, 171 Kan. 540, 236 P.2d 64, 73 (1951). We conclude that appellant’s action is not barred by the statutes of limitations of any one of the respective states. SUFFICIENCY OF THE FINDING OF DEFECT Appellant argues emphatically that the district judge made a specific finding of liability when, in his opinion, he used the language outlined in footnote 2, supra. We disagree. We are convinced that in using this language the judge had no intention of making a specific finding of defective design which would form the basis for a judgment of strict liability at" }, { "docid": "11127536", "title": "", "text": "any -and all of these theories of liability mentioned in the opinion, we need not determine whether application is made of the absolute responsibility of the manager of an elemental force or because of a trespass quare clausum -fregit or because of the theory of an action on the case for negligence, reinforced by the necessity of explaining how structures erected by defendant and under its control happened to break when subjected only to normal tensions and strains, whi-c-h these were built to withstand. The evidence would clearly bring this case in the purview o-f the Rylands case. Here there was a stream of water —36 miles long — flowing 450 second feet of water in an earthen canal through a structure which was incapable of -holding the -force thereof. Defendant not only brought the water into an elevated position above the lands- -of p-laintiff, but -continued to have it flow there, although no sufficient guard was placed to prevent the water from flowing onto the lands of plaintiff. If then this doctrine, so often quoted with approval by the Supreme 'Court of Oregon, were applied, plaintiff should recover. The -defendant voluntarily, 'for the purpose of reimbursing itself for outlay, assumed the -control of this elemental force, which was a stream 36 miles long, flowing rapidly -and carrying 450 second feet of water. The water invaded the lands of plaintiff and did -damage as a consequence of the voluntary act of defendant in turning the water into the canal above. This is a trespass for which liability follows at common law and under the Oregon decisions. The defendant was handling a highly dangerous instrumentality in a position where the lands of plaintiffs were peculiarly exposed to -peril, and was bound to exercise a degree of care proportionate to the injuries likely to result to others if the ditch did not hold the stream. When plaintiffs proved the collapse of the wall of the canal and the injuries- suffered by him, he made out a prima facie case of negligence. “A very high degree of danger -calls for a very high" }, { "docid": "2693612", "title": "", "text": "744 P.2d at 1002. Resisting the temptation to pursue further this niche of Oregon law, an example from this case helps to reconcile the Oregon Supreme Court's position. Within the terms of the policy, the contamination of ground water is covered as a form of injury to the property of a third party. If the contamination of ground water was not third-party property damage, then nothing Hartford could do would make a difference under Oregon law, or California law. See Hartford Fire Ins. Co. v. Spartan Realty Int'l, 196 Cal.App.3d 1320, 1325, 242 Cal.Rptr. 462 (1987) (\"the doctrine of waiver may not be used to reform a contract to create liability for a condition specifically excluded by the terms of the contract.”). Notwithstanding coverage under the terms of the policy, Hartford could avoid paying to remedy the contamination if it could establish that Exclusion F applied. See (insurer has duty to demonstrate applicability of exclusions). Under Oregon law, as stated in Ward and ABCD and reported by the Ninth Circuit in Dillingham, Hartford could waive or be estopped from exercising its right to assert Exclusion F if (as it did here) it denied the claims based on Exclusion K and only later added Exclusion F as a grounds for denial. Of course, if an estoppel theory was applied, Intel also would have to demonstrate reliance. . It is interesting to note that in creating the new tort of bad faith denial of the existence of contract in Seaman’s, the California Supreme Court relied on Oregon precedent. In the crucial passage of Seaman's wherein the court created the new tort by analogy, the source of the analogy was the Oregon Supreme Court’s decision in Adams v. Crater Well Drilling, Inc., 276 Or. 789, 556 P.2d 679 (1976). See Seaman’s, 36 Cal.3d at 769, 206 Cal.Rptr. 354, 686 P.2d 1158. . See Ins. Co. of the West v. Haralambos Beverage Co., 195 Cal.App.3d 1308, 241 Cal.Rptr. 427, 433 n. 6 (1987), modified on different grounds, November 17, 1987. The court quoted the following passage from 30 Cal.Jur.3d, Estoppel and Waiver § 1," }, { "docid": "7409249", "title": "", "text": "error when it characterized the action as one for breach of contract. WHICH STATE’S SUBSTANTIVE LAW APPLIES? A. Having concluded that the action should be characterized as one in tort, we proceed to a determination of which state’s law should be applied to the record before us. Should it be the substantive law of Kansas, Washington, or Oregon? Oregon, a neutral forum, has adopted, with minor modifications, the doctrine of strict liability in tort as embodied in Restatement, 2d, Torts § 402A. Heaton v. Ford Motor Co., 248 Or. 467, 435 P.2d 806 (1967). The identical doctrine under the same Restatement section, has been adopted by the Washington courts. Ulmer v. Ford Motor Co., 75 Wash.2d 522, 452 P.2d 729 (1969). Consequently, there is no conflict on this subject between the laws of Washington and Oregon. However, the courts of the state of Kansas have neither recognized nor rejected § 402A. Until recently, the Oregon Supreme Court was committed to the traditional rule that in tort cases the law of the place of wrong, lex loci delicti commissi, controls. In 1967, however, the court in Casey v. Manson Constr. Co., 247 Or. 274, 428 P.2d 898, decided to adopt the equally maligned, generally criticized “most significant relationship” approach embodied in Restatement, 2d, Conflict of Laws § 145. With the passage of time, the Oregon court recognized the futility of attempting to strictly follow the “most significant relationship” theory, holding in Erwin v. Thomas, 264 Or. 454, 506 P.2d 494 (1973), that when, in the particular factual context, the interests and policies of one state are involved only in a minor way, reason dictates that the law of the state whose policies and interests are vitally involved should apply. Or, in the court’s words “. . .if those of neither state are vitally involved, . the law of the forum should apply.” Id., 506 P.2d at 496. While the court in Erwin did hot reject the “most significant relationship” theory as outlined in the Restatement and adopted in Casey, it did hold that if a false conflict exists, the law of" }, { "docid": "11127530", "title": "", "text": "be not able to restore the grain, they shall sell him and his goods and the ‘farmers whose grain the water has, carried away shall share in. the results of the sale’: Harper’s Code of Hammurabi, §§ 53,. 54.” [78 Or. 208, 152 P. 875] He also comments: “If we eliminate the severe ‘proceedings supplemental to execu tion,’ the law is practically the same to-day as it was in the year 2250 B. C.” The court, however, found in 'this case that there was proof of negligence and therefore granted an injunction. In Patterson v. Horsefly Irrigation District, 157 Or. 1, 69 P.2d 282, 290, 70 P.2d 36, the court held that instructions in a seepage case, which the court interpreted as making an irrigation district “and all its directors insurers against damage of any and every nature resulting from construction, operation, or maintenance” of the system without regard to negligence, were erroneous. This case; of course, cannot be assumed to set aside the approval given to the Rylands case in 'previous opinions. Mr. Justice Bailey, who wrote this opinion, also wrote the opinion in the case of Suko v. Northwestern Ice & Cold Storage Co., 166 Or. 557, 113 P.2d 209, wherein damage was claimed on account of the breaking of an elevated tank used for storing water by a lessee, whereby adjoining, premises were invaded by its collapse, and personal injuries resulted. There the court cites Esson v. Wattier, Mallett v. Taylor and Rylands v. Fletcher. Although that case is finally also decided upon principles of the highest degree o'f care and the application o'f res ipsa loquitur. The doctrine which imposes strict liability in case of trespass' has been adopted and followed in the State of Oregon. Where defendant exploded a large blast of powder, throwing debris all over the residence of the plaintiff, it was indicated that there was liability because the plaintiff was frightened and fainted as a result thereof. Salmi v. Columbia & N. R. R. Co., 75 Or. 200, 146 P. 819, L.R.A.1915D, 834. It has also been held that, where there was" }, { "docid": "8553324", "title": "", "text": "another to prevent the destruction of a city and the flood incidentally injures others, this act was to prevent liability. The United States for almost a century has supervised the works in the Mississippi Valley under protection of this doctrine. The shield has not been removed. Findings and’ judgment in favor of the United States may be submitted in each of the cases to which this opinion may apply. . All figures are from the Vancouver, Washington, gauge. . Clark v. United States, D.C., 13 F.R.D. 342. . 28 U.S.C.A. §§ 1340(b), 2674. . In re Texas City Disaster Litigation, 5 Cir., 197 F.2d 771. . Somerset Seafood Co. v. United States, 4 Cir., 193 F.2d 631. . . Maryland v. Manor Real Estate & Trust Co., 4 Cir., 176 F.2d 414. . 28 U.S.C.A. § 1346(b). . The White case was affirmed by the Ct. of App., 9 Cir., 193 F.2d 505. . Todd v. Pacific Railway & Navigation Co., 59 Or. 249, 110 P. 391, 117 P. 300; Chambers v. Everding & Farrell, 71 Or. 521, 136 P. 885, 143 P. 616; Freer v. City of Eugene, 166 Or. 107, 111 P.2d 35. . “Actionable negligence must be predicated upon the breach of a legal duty.” Freer v. City of Eugene, 166 Or. 107, 111 P.2d 85, 87. . Rylands v. Fletcher, L. R., 3 II.L. 330; Tenant v. Goldwin (Eng.), 1 Salk. 360; Suko v. Northwestern Ice Co., 166 Or. 557, 113 P.2d 209. . Brown v. Gessler, 191 Or. 503, 512-513; 230 P.2d 541, 23 A.L.R.2d 815. . «* * # ¡n the so-called ‘blasting’ cases an absolute liability, without regard to fault, has uniformally been imposed by the American courts wherever there has been an actual invasion of property by rocks or debris.” Exner v. Sherman Power Construction Co., 2 Cir., 54 F.2d 510, 513, 80 A.L.R. 686. For the application of this rule in Oregon, see Salmi v. Columbia & Nehalem Railroad Co., 75 Or. 200, 146 P. 819, L.R.A. 1915D, 834; Fisher v. Burrell, 116. Or. 317, 241 P. 40. . See Stapleton’s" }, { "docid": "19228863", "title": "", "text": "any change of the course or water level of the said Lower Klamath Lake.... J.A. 4270. I interpret this portion of the contract to constitute a quit-claim of Van Brimmer’s “riparian rights,” a position with which plaintiffs apparently agree. 2007 Reply Br. at 23. The question is what does the contract mean by “riparian rights”? Prior to February 24, 1909, the State of Oregon applied both the riparian doctrine and the prior appropriation doctrine to the use of surface waters. Fort Vannoy Irr. Dist., 188 P.3d at 283-84 (citing Wells A. Hutchins, The Common-Law Riparian Doctrine in Oregon: Legislative and Judicial Modification, 36 Or. L.Rev. 193 (1957)); cf. Oregon General Laws, Chapter 216 (1909) (adopting prior appropriation doctrine). Given this historical context, I believe that the 1909 contract’s quit-claim of “riparian rights” is ambiguous, and I would remand for additional briefing of this specific issue. III. In conclusion, my view differs only by a limited degree with that of the majority. I agree that remand is appropriate, but my guidance would differ on certain aspects of the Certification Decision. I therefore concur with the majority in part, and I concur in the judgment. . For example, the trial court noted that the Klamath Drainage District permit is for use during a period of time that appears to be outside the period when delivery was suspended in 2001. Klamath Irr. Dist. v. United States, 67 Fed.Cl. 504, 539 n. 62 (2005). The trial court also included the Klamath Drainage District and Klamath Hills District Improvement Company permits in a discussion of the availability of damages, id. at 539, an issue which I do not believe the parties have adequately considered. Assuming that plaintiffs do have an equitable or beneficial property interest in the waters to which the United States took title in 1905, plaintiffs’ interests are likely junior to the aboriginal fishing rights of amici Indian tribes. I also think it very likely that the water flow allocations associated with Indian fishing rights may be largely co-extensive with the flow allocations made by the United States in 2001. In any event," }, { "docid": "11127543", "title": "", "text": "Texas & Pacific Railway Company v. O’Mahoney, 24 Tex.Civ.App. 631, 60 S.W. 902; note, 15 L.R.A.,N.S., 541. . Holdsworth viii, 465, also 466-7, iii, 377-8-382, xii, 523-4. . Sullivan, Adm’x v. Dunham, 161 N.Y. 290, 55 N.E. 923, 47 L.R.A. 715, 76 Am.St.Rep. 274. . Note, 35 A.L.R. 1244. . Exner v. Sherman Power Construction, Co., 2 Cir., 54 F.2d 510, 513. . Cartwright v. Southern Pacific Co., D.C.Or., 206 F. 234, 235; See Fortier v. H. P. Hood & Sons, Inc., 307 Mass. 292, 30 N.E.2d 253; Ryder v. Town of Lexington, 303 Mass. 281, 21 N.E.2d 382; Dryden v. Peru Bottom Drainage Dist., 99 Neb. 837, 158 N.W. 55; City of Jackson v. Wilson, 146 Ga. 250, 91 S.E. 63. The Oregon Supreme Court adopts the-trespass rule in regard to water cast on another’s land. Laurance v. Tucker, 160 Or. 474, 85 P.2d 374; Boulevard Drainage System v. Gordon, 91 Or. 240, 177 P. 956, 178 P. 796. . Hueston v. Mississippi & R. R. Boom Co., 76 Minn. 251, 79 N.W. 92. . Dryden v. Peru Bottom Drainage Dist., 99 Neb. 837, 158 N.W. 55; Kiefer v. County of Ramsey, 140 Minn. 143, 167 N.W. 362; But see Westerson v. State, 207 Minn. 412, 291 N.W. 900. . Boyd v. Portland Electric Co., 41 Or. 336, 68 P. 810. . Budd v. United Carriage Co., 25 Or. 314, 35 P. 660, 27 L.R.A. 279. . Kahn v. Triest-Rosenberg Cap Company, 139 Cal. 340, 73 P. 164. . Lytle v. Hulen, 128 Or. 483, 275 P. 45, 114 A.L.R. 587. . Hulbert v. Twin Falls County, 327 U.S. 103, 66 S.Ct. 96, 90 L.Ed. 417, reversing Twin Falls County v. Hulbert, 66 Idaho 128, 156 P.2d 319, which held tbat a sovereign state was not bound by indefinite language in a federal controlled statute. . Hon. Arthur Hay; now an Associate Justice of the Oregon Supreme. Court, was the trial judge. The instructions laid down the correct rule in accordance with previous Oregon cases, but were somewhat ambiguous. . . Mallett v. Taylor, 78 Or. 208, 152 P." }, { "docid": "17644662", "title": "", "text": "260 feet below the canal in elevation. The escaping waters from both breaks followed an identical course. It appears customary in respect of canals of this type to make engineering inspections during the non-irrigation season (when water is not flowing in the canal) and to make two inspections each day by non-engineers (ditch riders) while the canal is in operation. This was the practice followed by the Service in the present instance, and the inspections made disclosed no danger. An investigation of the first break did not reveal its cause or disclose any indication of further peril. Repairs were made hurriedly to permit the resumption of irrigation at the earliest possible moment. Extensive investigations after the second break disclosed that the earth four feet below the bottom of the canal was saturated with water and had completely broken down. The inability of this saturated subsoil to support the weight of the water flowing through the canal was advanced by the government in its showing as the cause of the breaks. However, the trial court found that the cause after the lengthy period of operation was conjectural. The court predicated its judgment against the government in the present cases primarily upon the principle of absolute liability enunciated in Rylands v. Fletcher, 1 E.R.C. 236, L.R., 3 H.L. 330. That principle, of course, is that one who permits a highly dangerous instrumentality or agency which is located on his property and is under his control to escape and damage another is liable for the damage irrespective of negligence or fault. The court was of the view that the Rylands v. Fletcher doctrine is accepted in Oregon, and language found in a subsequent Oregon decision, Brown v. Gessler, 191 Or. 503, 230 P.2d 541, 23 A.L.R.2d 815, probably confirms the view. At the time of the decision below, Dalehite v. United States, 346 U.S. 15, 73 S.Ct. 956, 97 L.Ed. 1427, had not been decided. In Dalehite the Court held that the Federal Tort Claims Act may be invoked only on a “ ‘negligent or wrongful act or omission’ ” of a government" }, { "docid": "7409250", "title": "", "text": "loci delicti commissi, controls. In 1967, however, the court in Casey v. Manson Constr. Co., 247 Or. 274, 428 P.2d 898, decided to adopt the equally maligned, generally criticized “most significant relationship” approach embodied in Restatement, 2d, Conflict of Laws § 145. With the passage of time, the Oregon court recognized the futility of attempting to strictly follow the “most significant relationship” theory, holding in Erwin v. Thomas, 264 Or. 454, 506 P.2d 494 (1973), that when, in the particular factual context, the interests and policies of one state are involved only in a minor way, reason dictates that the law of the state whose policies and interests are vitally involved should apply. Or, in the court’s words “. . .if those of neither state are vitally involved, . the law of the forum should apply.” Id., 506 P.2d at 496. While the court in Erwin did hot reject the “most significant relationship” theory as outlined in the Restatement and adopted in Casey, it did hold that if a false conflict exists, the law of the forum should apply. It held that a false conflict would arise: (1) when the laws of two states are the same or would produce the same result, and (2) when no substantial conflict exists between the states’ policies or inter ests in the particular factual context in which the question arises. Consequently, under Erwin, as applied to our context, Oregon law would apply unless an actual conflict exists among the relevant policies of Oregon, Washington, and Kansas. As we have already said, Oregon and Washington recognize and enforce the doctrine of strict liability in tort as embodied in Restatement § 402A. Between those states there is obviously no conflict. Nor, in these circumstances, do we find a true conflict between the relevant law of Kansas and that of either Oregon or Washington. Of significant aid to our analysis is McDaniel v. Sinn, 194 Kan. 625, 400 P.2d 1018 (1965), in which the plaintiff prosecuted an action in that forum for injuries to himself and the wrongful death of plaintiff’s decedent resulting from an automobile" }, { "docid": "19228862", "title": "", "text": "a pre-1905 water right” and that a 1909 contract between Van Brimmer and the United States “relinquishes only Van Brimmer’s riparian rights in lower Kla-math Lake, not its appropriative rights.” 2007 Reply Br. at 22-23. Assuming, ar-guendo, that Van Brimmer did obtain a water right with a priority date earlier than that of the United States, I disagree with plaintiffs’ interpretation of the 1909 agreement. We have the ability to interpret the language of the agreement, San Carlos Irrigation and Drainage District v. United States, 111 F.3d 1557, 1564 (Fed.Cir.1997), and we should do so. The 1909 agreement includes a contractual promise by the United States to deliver water, in consideration for which Van Brimmer hereby waives and renounces to the use and benefit of the United States any and all of its riparian rights, in relation to the waters and shores of Lower Kla-math Lake appurtenant or incident to the lands now being irrigated by [Van Brimmer] ... and also waives and renounces any and all claims for damages consequent upon or arising from any change of the course or water level of the said Lower Klamath Lake.... J.A. 4270. I interpret this portion of the contract to constitute a quit-claim of Van Brimmer’s “riparian rights,” a position with which plaintiffs apparently agree. 2007 Reply Br. at 23. The question is what does the contract mean by “riparian rights”? Prior to February 24, 1909, the State of Oregon applied both the riparian doctrine and the prior appropriation doctrine to the use of surface waters. Fort Vannoy Irr. Dist., 188 P.3d at 283-84 (citing Wells A. Hutchins, The Common-Law Riparian Doctrine in Oregon: Legislative and Judicial Modification, 36 Or. L.Rev. 193 (1957)); cf. Oregon General Laws, Chapter 216 (1909) (adopting prior appropriation doctrine). Given this historical context, I believe that the 1909 contract’s quit-claim of “riparian rights” is ambiguous, and I would remand for additional briefing of this specific issue. III. In conclusion, my view differs only by a limited degree with that of the majority. I agree that remand is appropriate, but my guidance would differ on certain aspects" } ]

[ { "docid": "12999081", "title": "", "text": "Gordon, 715 F.2d 1187 (7th Cir. 1983), the court cited Kirkley, supra, for the proposition that a determination of liability for attorneys’ fees is appealable when the amount of fees has not been determined. Id. at 1190 & n. 3. Other courts have cited Kirkley only for the proposition that a judgment on the merits is appealable when the amount of attorneys’ fees has not been determined. See White v. New Hampshire Department of Employment Security, 455 U.S. 445, 452 n. 14, 102 S.Ct. 1162, 1167 n. 14, 71 L.Ed.2d 325 (1982); Abrams v. Interco, Inc., 719 F.2d 23, 26 (2d Cir.1983); Crowley v. Schultz, 704 F.2d 1269, 1271 (D.C.Cir.1983). The Wang court's interpretation of Kirkley is erroneous. An award of attorneys’ fees is collateral to a decision on the merits, but a determination of the amount of attorneys’ fees is not collateral to a determination of liability for attorneys’ fees. A rule that permits a party to delay an appeal of a finding of liability for attorneys’ fees until the amount of fees is determined serves the purpose of avoiding piecemeal litigation. Fort v. Roadway Express, Inc., 746 F.2d 744, 747-48 (11th Cir.1984); Crowley v. Schultz, 704 F.2d at 1272; Cassidy v. Virginia Carolina Veneer Corp., 652 F.2d 380, 383 (4th Cir.1981). The rule also is consistent with “the longstanding rule that a determination as to liability, prior to a determination on the issue of damages or other relief requested, is not a final appealable judgment.” Fort v. Roadway Express, Inc., 746 F.2d at 747; see Williams v. Ezell, 531 F.2d 1261, 1263 (5th Cir.1976). Cf. Mekdeci v. Merrell National Laboratories, 711 F.2d 1510, 1523 (11th Cir.1983); SEC v. Independence Drilling Corp., 595 F.2d 1006, 1008 (5th Cir.1979). The rule permitting a party to delay an appeal until the amount of fees is determined will not have untoward consequences in those instances in which the party timely appeals a judgment on the merits and wishes to consolidate with it an appeal from a determination of liability for attorneys’ fees when the amount of fees has not been set In" } ]

[ { "docid": "14251954", "title": "", "text": "373, 101 S.Ct. 669, 673, 66 L.Ed.2d 571 (1981). . We observe that Beckwith's complaint demanded a jury trial. Thus, if summary judgment had been denied and Beckwith, after trial, had obtained a favorable jury verdict, then the jury would have been charged with the task of determining the total damages due Beckwith from Travelers. The attorney's fees Beckwith incurred in defending the underlying Trumbull lawsuit would then have been a portion of that total damage award. See e.g., F.H. Krear & Co. v. Nineteen Named Trustees, 776 F.2d 1563, 1564 (2d Cir.1985). Indeed, at oral argument, the order which granted Beckwith $100,000 was characterized as a partial summary judgment. Partial summary judgment cases are not appeal-able in the absence of a Fed.R.Civ.P. 54(b) certification. See Liberty Mutual Insurance Co. v. Wetzel, 424 U.S. 737, 739-44, 96 S.Ct. 1202, 1204-06, 47 L.Ed.2d 435 (1976). . In so holding we obviously do not disturb the settled jurisprudence of this circuit, that an appeal may be taken from an order that finally resolves the merits of the case even if attorney’s fees which arise as a collateral matter under a separate statute are not yet quantified. In this latter situation, the time for appeal is to be measured from the entry of the underlying merits order, regardless of when the attorney’s fees are finally quantified. West v. Keve, 721 F.2d 91, 94-95 (3d Cir.1983). . The order appealed from, in full states: \"AND NOW, to-wit, this 11th day of July, 1986, for the reasons stated in the foregoing Opinion, it is hereby ORDERED, ADJUDGED and DECREED that: 1. Plaintiffs Motion for Summary Judgment in the above-captioned matter be and hereby is GRANTED; 2. Defendant’s Motion for Summary Judgment in the above-captioned matter be and hereby is DENIED; 3. Judgment is entered in favor of the Plaintiff for $100,000.00 with interest from November 12, 1982; 4. Counsel for the Plaintiff are directed to file an affidavit within twenty (20) days of the date of filing this Order setting forth the hours reasonably expended by them in defending Plaintiff in the Trumbull case and" }, { "docid": "14251953", "title": "", "text": "amount of attorney’s fees has not been determined, but that in the second type of case, determination of the amount of attorney’s fees is part of any final, appealable judgment.” Id. at 3. Because the case before it involved an award of attorney’s fees that was clearly collateral, the court declined to decide whether it would adopt a different rule for those cases in which the award of attorney’s fees was an \"integral part” of the merits. Similarly, the District of Columbia Circuit, in Shultz v. Crowley, 802 F.2d 498, 501-02 n. 1 (D.C.Cir.1984), recognized that some courts have drawn a distinction between attorney’s fees based on statutory and nonstatutory sources of authority. The court, however, declined to decide the issue and limited its \"discussion and holding to the issues raised by requests for statutory attorney's fees.” Id. . A final order has been defined as one which “ends the litigation on the merits and leaves nothing for the court to do but execute judgment.” Firestone Tire & Rubber Co. v. Risjord, 449 U.S. 368, 373, 101 S.Ct. 669, 673, 66 L.Ed.2d 571 (1981). . We observe that Beckwith's complaint demanded a jury trial. Thus, if summary judgment had been denied and Beckwith, after trial, had obtained a favorable jury verdict, then the jury would have been charged with the task of determining the total damages due Beckwith from Travelers. The attorney's fees Beckwith incurred in defending the underlying Trumbull lawsuit would then have been a portion of that total damage award. See e.g., F.H. Krear & Co. v. Nineteen Named Trustees, 776 F.2d 1563, 1564 (2d Cir.1985). Indeed, at oral argument, the order which granted Beckwith $100,000 was characterized as a partial summary judgment. Partial summary judgment cases are not appeal-able in the absence of a Fed.R.Civ.P. 54(b) certification. See Liberty Mutual Insurance Co. v. Wetzel, 424 U.S. 737, 739-44, 96 S.Ct. 1202, 1204-06, 47 L.Ed.2d 435 (1976). . In so holding we obviously do not disturb the settled jurisprudence of this circuit, that an appeal may be taken from an order that finally resolves the merits of the" }, { "docid": "11621827", "title": "", "text": "approach outside the context of 42 U.S.C. § 1988. In Hicks v. Southern Maryland Health Systems Agency, 805 F.2d 1165 (4th Cir.1986), we concluded that the White “reasoning applies as well to awards under Rule 11 and the other statutes.” Id. at 1166. In a case concerning the award of attorneys’ fees in ERISA litigation, the Seventh Circuit has stated, “The Rule 59(e) route would trap the unwary in some cases and in others cause half-baked fee requests to be submitted that would have to be amended later.” Bittner v. Sadoff & Rudoy Indus., 728 F.2d 820, 828 (7th Cir.1984). Cohen cites decisions of the Third and Fifth Circuits which suggest a contrary result. See Beckwith Mach. Co. v. Traveler’s Indemnity Co., 815 F.2d 286 (3d Cir.1987); Bilmar Drilling, Inc. v. IFG Leasing Co., 795 F.2d 1194 (5th Cir.1986); Alcorn County v. U.S. Interstate Supplies, Inc., 731 F.2d 1160 (5th Cir.1984). These cases concerned the impact of a motion for attorneys’ fees on the finality of a judgment, and turned on a distinction between awards of fees that are integral to the action, and those which are collateral. The Supreme Court in another case, however, has rejected the integral/collateral distinction for finality determinations, and stated, “As a general matter, at least, we think it indisputable that a claim for attorney’s fees is not part of the merits of the action to which the fees pertain.” Budinich v. Becton Dickinson & Co., 486 U.S. 196, 108 S.Ct. 1717, 1721, 100 L.Ed.2d 178 (1988). This perspective on attorneys’ fees was reiterated last term in Osterneck v. Ernst & Whinney, 489 U.S. -, 109 S.Ct. 987, 990-91, 103 L.Ed.2d 146 (1989). Both Budinich and Osterneck were unanimous decisions; both cited White extensively; and both interpreted White expansively. In light of these Supreme Court decisions, the Eleventh Circuit’s persuasive analysis in Gordon, and our own rationale expressed in Hicks, we conclude that Morley’s request for attorneys’ fees was timely filed. We also conclude that the district court did not abuse its discretion in denying Cohen a hearing on the issue of attorneys’ fees. Environmental" }, { "docid": "8452397", "title": "", "text": "here: whether an award of attorney’s fees, when it arises out of a claimant’s underlying cause of action, is final before that award is quantified. See Beckwith Machinery Co. v. Travelers Indem nity Co., 815 F. 2d 286, 288-289 (CA3 1987) (canvassing the Courts of Appeals decisions). Four Circuits have held that an attorney’s fee award, when that award is not won in a collateral proceeding (such as a § 1988 action), is not final until the amount of the award is quantified. Beckwith Machinery Co., supra, at 290; F. H. Krear & Co. v. Nineteen Named Trustees, 776 F. 2d 1563, 1564 (CA2 1985); Todd Shipyards Corp. v. Auto Transportation, S. A., 763 F. 2d 745, 751 (CA5 1985); Fort v. Roadway Express, Inc., 746 F. 2d 744, 747 (CA11 1984). Two other Courts of Appeals have taken the approach applied by the Seventh Circuit here, according finality to all attorney’s fees awards prior to their quantification. Budinich v. Becton Dickinson & Co., 807 F. 2d 155, 157-158 (CA10 1986); Morgan v. Union Metal Mfg., 757 F. 2d 792, 794-796 (CA6 1985). At least one other Court of Appeals has recognized the split, but has declined to take a position. Crossman v. Maccoccio, 792 F. 2d 1, 3 (CA1 1986) (per curiam). Because the Courts of Appeals have divided in their attempt to apply the principles of our decision in White, I would grant certiorari in this case to resolve the conflict and answer the question presented here." }, { "docid": "18581557", "title": "", "text": "F.2d 744, 747-48 (11th Cir.1984); Williams v. Ezell, 531 F.2d 1261, 1263 (5th Cir.1976). But see Bittner v. Sadoff & Rudoy Industries, 728 F.2d 820, 826-27 (7th Cir.1984). Our holding, in this case, is consistent with the requirement of finality. 28 U.S.C, § 1291. It is apparent from the order that the district court contemplated further proceedings prior to entering a fi nal order setting the amount of attorney’s fees. Thus, the order granting defendants’ motion for attorney’s fees is not sufficiently definite to be capable of enforcement and therefore cannot be considered a final judgment for purposes of appeal. In addition, our holding avoids piecemeal appeals by eliminating the potential for two appeals: one questioning liability for fees and the second questioning the amount of the fees. In their response to the show cause order, plaintiffs rely extensively on Memphis Sheraton Corp. v. Kirkley, 614 F.2d 131 (6th Cir.1980), for the proposition that an award of attorney’s fees which does not fix the amount of such fees is final. We note, however, that more recently in Morgan v. Union Metal Manufacturing, 757 F.2d 792, 795 (6th Cir.1985), the Sixth Circuit indicated that this interpretation of Kirk-ley is erroneous. The court explained that although an award of attorney’s fees is collateral to the judgment on the merits, the determination of the amount of attorney’s fees is not collateral to the determination of liability for the fees. The court concluded that delaying the appeal until the amount is determined avoids piecemeal litigation. This explanation is in accord with our holding in this case. Finally, plaintiffs suggest, as an alternative to dismissal, that we hold this appeal in abeyance until the district court sets the amount of the fee award and then consolidate the two appeals as was suggested in Hershinow v. Bonamarte, 735 F.2d 264, 267 (7th Cir.1984). We decline to follow this procedure because jurisdictional issues are not subject to our discretion. See Becton Dickinson & Co., 799 F.2d at 61. But see Bittner, 728 F.2d at 827. We conclude that since the order was neither final nor appealable within" }, { "docid": "23229941", "title": "", "text": "(citation and internal quotation marks omitted)); F.H. Krear & Co. v. Nineteen Named Trustees, 776 F.2d 1563, 1564 (2d Cir.1985) (per cu- riam) (“We have held that where attorneys’ fees are a contractually stipulated element of damages, a judgment is not final until the fees have been determined.”). Under the doctrine of pendent appellate jurisdiction, however, “once we have taken jurisdiction over one issue in a case, we may, in our discretion, consider otherwise nonappealable issues in the case as well, where there is sufficient overlap in the factors relevant to the appealable and nonap-pealable issues to war-rant our exercising plenary authority over the appeal.” San Filippo v. U.S. Trust Co. of New York, 737 F.2d 246, 255 (2d Cir.1984), cert. denied, 470 U.S. 1035, 105 S.Ct. 1408, 84 L.Ed.2d 797 (1985); see Synergy Gas Co. v. Sasso, 853 F.2d 59, 62 (2d Cir.), cert. denied, 488 U.S. 994, 109 S.Ct. 559, 102 L.Ed.2d 585 (1988); Pridgen, 113 F.3d at 394 (in Synergy, the adjudication “was at most an exercise of pendent appellate jurisdiction” (citation and internal quotation marks omitted)). We have, however, rejected the doctrine of pendent appellate jurisdiction as a basis to review an undetermined award of attorney’s fees, even when the question of liability for the fees had been consolidated with other decisions that were final. See Cooper v. Salomon Bros., 1 F.3d 82, 85 (2d Cir.1993) (the policy of promoting “‘orderly judicial administration’ ” cannot “justify broadening the jurisdiction of a federal court without congressional approval”), cert. denied, 510 U.S. 1063, 114 S.Ct. 737, 126 L.Ed.2d 700 (1994); accord Pridgen, 113 F.3d at 394. Although we are cognizant of the serious practical considerations supporting West-Point’s argument, we adhere to our prior holdings that we have no jurisdiction, under 28 U.S.C. § 1291, to review a grant of attorney’s fees and costs until the amount of fees and costs have been set.. See Pridgen, 113 F.3d at 394 (holding that orders awarding attorney’s fees are not appealable until those fees have been set). We reject WestPoint’s argument that under the rule established in Budinich v. Becton Dickinson" }, { "docid": "14251937", "title": "", "text": "separate statute as a collateral matter. For such cases, this court, resting on White v. New Hampshire Department of Employment Security, 455 U.S. 445, 102 S.Ct. 1162, 71 L.Ed.2d 325 (1982), has adopted the rule that an order deciding the merits of a case is final and therefore appealable separate and apart from, as well as prior to, an order quantifying the attorney’s fees awarded under the authority of a separate statute. Halderman v. Pennhurst State School & Hospital, 673 F.2d 628, 643-44 (3d Cir.1982) (in banc) (sur petition for rehearing). In White v. New Hampshire, the Supreme Court determined that a claim for attorney’s fees under 42 U.S.C. § 1988 “raised legal issues collateral to the main cause of action,” White, 445 U.S. at 451, 102 S.Ct. at 1166, and such a request was not a motion to alter or amend the judgment under Rule 59(e) of the Federal Rules of Civil Procedure. The Court maintained that “[ujnlike other judicial relief, the attorney’s fees allowed under § 1988 are not compensation for the injury giving rise to an action.” Id. at 452, 102 S.Ct. at 1166. Moreover the Court asserted that the awarding of attorney’s fees under 42 U.S.C. § 1988 “is uniquely separable from the cause of action to be proved at trial.” Id. This court has never addressed the question of whether the White holding was intended to apply not only to cases in which the attorney’s fee question arises as a collateral matter under a separate statutory provision, but also to cases in which the fee award arises as an integral part of the merits of the dispute. We note at the outset that there is a split among the circuits on this question. III. The Second Circuit has recognized the collateral/integral distinction and held that “where attorney’s fees are a contractually stipulated element of damages, a judgment is not final until the fees have been determined.” F.H. Krear & Co. v. Nineteen Named Trustees, 776 F.2d 1563, 1564 (2d Cir.1985). White v. New Hampshire, supra, was considered “inapposite” because it concerned awards of attorney’s fees" }, { "docid": "13737839", "title": "", "text": "Attorneys’Fees In granting Amtrak’s Rule 50(b) motion for judgment as a matter of law, the district judge held that, under the indemnity agreement, Amtrak was entitled to reimbursement of its attorneys’ fees, as well as the costs it incurred in Phase I of the trial, in defense of the actions brought by Roberts and Quintiliani. The judge, however, did not set the amount of attorneys’ fees and litigation costs for which O & G was required to indemnify Amtrak. O & G now argues that the district court abused its discretion in awarding attorneys’ fees and costs where there was no evidence as to the amount or reasonableness of these expenses. Amtrak responds that the amount of fees due would be ascertained by the district judge only after liability for such fees was determined. Pursuant to 28 U.S.C. § 1291, we review only final decisions of the district court that “leave[ ] nothing for the court to do but execute the judgment.” Catlin v. United States, 324 U.S. 229, 233, 65 S.Ct. 631, 89 L.Ed. 911 (1945). A non-quantified award of attorneys’ fees and costs is not appealable until the amount of the fees has been set by the district court. “We have held that where attorneys’ fees are a contractually stipulated element of damages, a judgment is not final until the fees have been determined.” F.H. Krear & Co. v. Nineteen Named Trustees, 776 F.2d 1563, 1564 (2d Cir.1985) (per curiam); see also Honeywell Int’l, Inc. v. Purolator Prods. Co., 468 F.3d 162, 164 (2d Cir.2006). This circuit, moreover, has “rejected the doctrine of pendent appellate jurisdiction as a basis to review an undetermined award of attorneys’ fees, even when the question of liability for the fees had been consolidated with other decisions that were final.” Krumme v. WestPoint Stevens Inc., 143 F.3d 71, 87 (2d Cir.1998) (citing Cooper v. Salomon Bros., 1 F.3d 82, 85 (2d Cir.1993)). We therefore dismiss for lack of appellate jurisdiction the portion of O & G’s appeal challenging the district court’s grant of attorneys’ fees and costs incurred in Phase I of the" }, { "docid": "14251941", "title": "", "text": "for an award of damages”); Todd Shipyards Corp. v. Auto Transportation, S.A., 763 F.2d 745, 751 (5th Cir.1985) (in an action for breach of implied warranties of workmanlike performance, “an award of attorney’s fees cannot be regarded as collateral to the action but forms an integral part of the scope of relief”); Hooper v. FDIC, 785 F.2d 1228, 1232 (5th Cir.1986) (under Texas law, motions for attorney’s fees sought under a note or contract are an integral part of the merits; appeal dismissed for want of appellate jurisdiction); Bilmar Drilling, Inc. v. IFG Leasing Co., 795 F.2d 1194 (5th Cir.1986) (under contract theory, attorney’s fees and expenses are “not merely collateral to the merits,” whereas motion under 28 U.S.C. § 2202 for attorney’s fees and expenses is collateral). The Eleventh Circuit has also adopted the Fifth Circuit approach. McQurter v. City of Atlanta, 724 F.2d 881, 882 (11th Cir.1984); Certain British Underwriters at Lloyds of London, England v. Jet Charter Service, Inc., 739 F.2d 534, 535 (11th Cir.1984); C.I.T. Corporation v. Nelson, 743 F.2d 774, 775 (11th Cir.1984). Although the Second, Fifth, and Eleventh Circuits have chosen this case-by-case approach, other circuits have declined to recognize any distinction between an order awarding § 1988 fees and an order awarding fees in a contractual context. They instead adopt a bright-line approach, holding that all orders awarding attorney’s fees whether or not quantified, are orders concerning a collateral issue that does not affect the finality of a merits order. The Ninth Circuit opted for this bright-line approach in Int’l Ass’n of Bridge, Structural, Ornamental, and Reinforcing Ironworkers’ Local v. Madison Industries, 733 F.2d 656 (9th Cir.1984). That court offered three reasons for rejecting a case-by-case approach. First the court noted that such an approach would “spawn a whole new body of law” which would lead to an unnecessary expenditure of judicial resources. Second, the court was concerned that the issue of timeliness of appeal could limit counsel’s post-judgment litigation strategy. Third, because the court believed that the bright-line rule provides attorneys with the best device for determining the time for appeal, it" }, { "docid": "23515641", "title": "", "text": "(7th Cir.1984); cf. Budinich v. Becton Dickinson & Co., 486 U.S. 196, 108 S.Ct. 1717, 100 L.Ed.2d 178 (1988) (consequences for timing of notice of appeal). In Bittner, the district court held that a party was entitled to fees, but did not determine the amount. Nonetheless, we held the order reviewable (although it is unclear whether on the basis of some form of pendent jurisdiction or by a determination that the fee award was final under § 1291), since “there would be no net judicial economy, but if anything a net diseconomy, if we held that we could not consider the merits of a fee order until the amount of fees to be awarded is fixed.” Bittner, 728 F.2d at 827; but cf. Cooper v. Salomon Bros., Inc., 1 F.3d 82, 85 (2d Cir.1993), cert. denied, — U.S. —, 114 S.Ct. 737, 126 L.Ed.2d 700 (1994); Becton Dickinson & Co. v. Dist. 65, UAW, 799 F.2d 57, 61 (3d Cir. 1986); Southern Travel Club, Inc. v. Carnival Air Lines, Inc., 986 F.2d 125, 129-30 (5th Cir.1993); Gates v. Central States Teamsters Pension Fund, 788 F.2d 1341, 1343 (8th Cir. 1986); Jensen Electric Co. v. Moore, Caldwell, Rowland & Dodd, Inc., 873 F.2d 1327, 1329 (9th Cir.1989). While concerns for “judicial economy” might suggest a different approach in the present case, where the amount of fees is still hotly contested in the district court, jurisdiction cannot turn on the eventual determination of an amount. It is well settled that we have jurisdiction to review the district court’s finding that BASF was entitled to fees. See Lac Courte, 829 F.2d at 603; U.S. Marine Corp. v. Szabo, 819 F.2d 714, 717 (7th Cir.1987); Vandenplas v. Muskego, 797 F.2d 425, 429 n. 1 (7th Cir. 1986); see also Exchange Nat. Bank of Chicago v. Daniels, 763 F.2d 286, 291-92 (7th Cir.1985). A decision to award attorneys’ fees under the Lanham Act is firmly committed to the district court’s discretion, Otis Clapp, 754 F.2d at 747, and we do not find that the district court abused its discretion here. Old World, relying on ALPO," }, { "docid": "1156490", "title": "", "text": "left undecided. Id. at 331; see, e.g., Art Janpol Volkswagen v. Fiat Motors, 767 F.2d 690 (10th Cir.1985); cf. Dataq, Inc. v. Tokheim Corp., 736 F.2d 601 (10th Cir. 1984). Accordingly, an appeal on the merits must be filed within the requisite time period following entry of final judgment thereon, notwithstanding that a motion for attorney’s fees may be pending. See West v. Keve, 721 F.2d 91 (3d Cir.1983); Smillie v. Park Chemical Co., 710 F.2d 271 (6th Cir.1983). Since plaintiff did not file a notice of appeal from the district court’s May 16, 1984, order disposing of his new trial motions until August 29, 1984, when he appealed the district court’s award of $1,000 in attorney’s fees, defendant contends that the former appeal must be dismissed as untimely. Plaintiff seeks to avoid the effect of the authorities cited by arguing that, unlike our previous decisions, the present case involves a situation where attorney’s fees are an inherent part of the relief sought and, consequently, must be determined before the judgment on the merits can be considered final. While there is some authority for the type of situational approach advocated by plaintiff, see F.H. Krear & Co. v. Nineteen Named Trustees, 776 F.2d 1563 (2d Cir.1985); McQurter v. Atlanta, 724 F.2d 881 (11th Cir.1984); Holmes v. J. Ray McDermott & Co., 682 F.2d 1143 (5th Cir.1982), cert. denied, 459 U.S. 1107, 103 S.Ct. 732, 74 L.Ed. 956 (1983), we believe the better course is followed in those circuits which treat all attorney’s fees motions as procedural equivalents and uniformly require separate notices of appeal when such motions are resolved after judgment has been rendered on the merits. See Exchange National Bank v. Daniels, 763 F.2d 286 (7th Cir.1985); Morgan v. Union Metal Manufacturing, 757 F.2d 792 (6th Cir.1985); International Association of Bridge, etc., Local Union 75 v. Madison Industries, Inc., 733 F.2d 656 (9th Cir. 1984); West v. Keve, supra. A uniform, unqualified rule is especially appropriate in the present context for several reasons. First, the de facto, case-by-case analysis required by the situational approach, and the consequent uncertainty it" }, { "docid": "13737840", "title": "", "text": "911 (1945). A non-quantified award of attorneys’ fees and costs is not appealable until the amount of the fees has been set by the district court. “We have held that where attorneys’ fees are a contractually stipulated element of damages, a judgment is not final until the fees have been determined.” F.H. Krear & Co. v. Nineteen Named Trustees, 776 F.2d 1563, 1564 (2d Cir.1985) (per curiam); see also Honeywell Int’l, Inc. v. Purolator Prods. Co., 468 F.3d 162, 164 (2d Cir.2006). This circuit, moreover, has “rejected the doctrine of pendent appellate jurisdiction as a basis to review an undetermined award of attorneys’ fees, even when the question of liability for the fees had been consolidated with other decisions that were final.” Krumme v. WestPoint Stevens Inc., 143 F.3d 71, 87 (2d Cir.1998) (citing Cooper v. Salomon Bros., 1 F.3d 82, 85 (2d Cir.1993)). We therefore dismiss for lack of appellate jurisdiction the portion of O & G’s appeal challenging the district court’s grant of attorneys’ fees and costs incurred in Phase I of the trial. This defect does not impair the finality of the district court’s ruling on Amtrak’s motion for judgment as a matter of law, nor does it divest us of jurisdiction to review the merits of the other issues on appeal. In reaching this conclusion, we apply the “bright-line rule” enunciated by the Supreme Court in Budinich v. Becton Dickinson & Co., 486 U.S. 196, 108 S.Ct. 1717, 100 L.Ed.2d 178 (1988), “that a decision on the merits is a ‘final decision’ for purposes of [28 U.S.C.] § 1291 whether or not there remains for adjudication a request for attorney’s fees.” Id. at 202-03, 108 S.Ct. 1717. III. CONCLUSION We have considered all of appellant O & G’s arguments- and find them to be without merit. For the reasons discussed above, we affirm the district court on all issues except for the ruling on attorneys’ fees, over which we lack appellate jurisdiction. Affirmed in PART and Dismissed in Part. . The two actions were Roberts v. Nat’l R.R. Passenger Corp., No. 3:04-cv-1318 (D. Conn. filed Aug." }, { "docid": "14251938", "title": "", "text": "giving rise to an action.” Id. at 452, 102 S.Ct. at 1166. Moreover the Court asserted that the awarding of attorney’s fees under 42 U.S.C. § 1988 “is uniquely separable from the cause of action to be proved at trial.” Id. This court has never addressed the question of whether the White holding was intended to apply not only to cases in which the attorney’s fee question arises as a collateral matter under a separate statutory provision, but also to cases in which the fee award arises as an integral part of the merits of the dispute. We note at the outset that there is a split among the circuits on this question. III. The Second Circuit has recognized the collateral/integral distinction and held that “where attorney’s fees are a contractually stipulated element of damages, a judgment is not final until the fees have been determined.” F.H. Krear & Co. v. Nineteen Named Trustees, 776 F.2d 1563, 1564 (2d Cir.1985). White v. New Hampshire, supra, was considered “inapposite” because it concerned awards of attorney’s fees pursuant to a separate statute rather than a contract. Id. (“White ... does not lead us to abandon our clear rule that contractually stipulated awards must be determined before a judgment is final.”); see also Lewis v. S.L. & K, Inc., 746 F.2d 141, 143 (2d Cir.1984) (White distinguished; attorney’s fees in shareholder derivative suit were “integral to a final judgment, not merely collateral to it”); Johnson v. University of Bridgeport, 629 F.2d 828 (2d Cir.1980); Union Tank Car Co. v. Isbrandtsen, 416 F.2d 96 (2d Cir.1969); Aetna Casualty & Surety Co. v. Giesow, 412 F.2d 468 (2d Cir.1969). The Fifth Circuit has likewise recognized a distinction, and it has fashioned an approach that turns upon “the nature of the plaintiff’s cause of action and the source of his entitlement to attorney’s fees.” Rodriguez v. Handy, 802 F.2d 817, 819 (5th Cir.1986). A fuller articulation of the Fifth Circuit test for finality appears in Holmes v. J. Ray McDermott & Co., 682 F.2d 1143 (5th Cir.1982), cert, denied, 459 U.S. 1107, 103 S.Ct. 732, 74" }, { "docid": "14251940", "title": "", "text": "L.Ed.2d 956 (1983): When attorney's fees are similar to costs ... or collateral to an action ... a lack of determination as to the amount does not preclude the issuance of a final, appeal-able judgment on the merits. When, however, the attorney’s fees are an integral part of the merits of the case and the scope of relief, they cannot be characterized as costs or as collateral and their determination is a part of any final, appealable judgment. Holmes, 682 F.2d at 1146. The Fifth Circuit has applied the Holmes test in later cases declaring that an appellate court does not have jurisdiction before attorney’s fees have been quantified. Oxford Production Credit Ass’n v. Duckworth, 689 F.2d 587 (5th Cir.1982) (under Mississippi law, attorney’s fees provided for by the contract are integral to the merits and not collateral); Alcorn County v. U.S. Interstate Supplies, Inc., 731 F.2d 1160, 1165 (5th Cir.1984) (attorney’s fees in a RICO action are integral to the merits because the RICO statute “both creates the plaintiff’s cause of action and provides for an award of damages”); Todd Shipyards Corp. v. Auto Transportation, S.A., 763 F.2d 745, 751 (5th Cir.1985) (in an action for breach of implied warranties of workmanlike performance, “an award of attorney’s fees cannot be regarded as collateral to the action but forms an integral part of the scope of relief”); Hooper v. FDIC, 785 F.2d 1228, 1232 (5th Cir.1986) (under Texas law, motions for attorney’s fees sought under a note or contract are an integral part of the merits; appeal dismissed for want of appellate jurisdiction); Bilmar Drilling, Inc. v. IFG Leasing Co., 795 F.2d 1194 (5th Cir.1986) (under contract theory, attorney’s fees and expenses are “not merely collateral to the merits,” whereas motion under 28 U.S.C. § 2202 for attorney’s fees and expenses is collateral). The Eleventh Circuit has also adopted the Fifth Circuit approach. McQurter v. City of Atlanta, 724 F.2d 881, 882 (11th Cir.1984); Certain British Underwriters at Lloyds of London, England v. Jet Charter Service, Inc., 739 F.2d 534, 535 (11th Cir.1984); C.I.T. Corporation v. Nelson, 743 F.2d 774," }, { "docid": "14251951", "title": "", "text": "lack of an appealable order. . Section 1291 of 28 U.S.C. provides, in pertinent part: \"[t]he court of appeals ... shall have jurisdiction of appeals from all final decisions of the district courts of the United States____” . Travelers’ appeal on the merits raises essentially three issues: (1) whether the district court erred in granting summary judgment because disputed issues of material fact remained; (2) whether the district court erred in estopping Travelers from denying coverage of Beckwith; and (3) whether the district court erred in awarding the above-mentioned attorney’s fees. . The underlying action involved a suit brought by Trumbull Corporation against Beckwith and Caterpillar Tractor Company, essentially concerning defective machinery. . To trace the history of this controversy, see Baughman v. Cooper-Jarrett Inc., 530 F.2d 529, 531 n. 2 (3d Cir.), cert. denied, 429 U.S. 825, 97 S.Ct. 78, 50 L.Ed.2d 87 (1976); Richerson v. Jones, 551 F.2d 918, 921-22 (3d Cir.1977); DeLong Corp. v. Raymond International Inc., 622 F.2d 1135 (3d Cir.1980); O'Hommel Co. v. Ferro Corp., 659 F.2d 340, 354 (3d Cir. 1981) cert. denied, 455 U.S. 1017, 102 S.Ct. 1711, 72 L.Ed.2d 134 (1982); Croker v. The Boeing Co., 662 F.2d 975 (3d Cir. 1981) (in banc); and Halderman v. Pennhurst State School & Hospital, 673 F.2d 628, 643-45 (3d Cir.1982) (in banc) (sur petition for rehearing), cert. denied, 465 U.S. 1038, 104 S.Ct. 1315, 79 L.Ed.2d 712 (1984). . We also note that both the First Circuit and the District of Columbia Circuit have recognized the basis for drawing a collateral/integral distinction, but both have declined to take a position before the issue was squarely presented. In Crossman v. Maccoccio, 792 F.2d 1 (1st Cir.1986), the First Circuit identified three different types of attorney’s fees: (1) those which are similar to costs, (2) those which are an integral part of the case or scope of relief sought, and (3) those which are collateral to an action. It noted that some courts had concluded that \"in the first and third type of cases, a judgment on the merits is not rendered unap-pealable simply because the" }, { "docid": "376351", "title": "", "text": "over underlying merits claim). See also, Saber v. FinanceAmerica Credit Corp., 843 F.2d 697, 703 (3d Cir.1988); Becton Dickinson & Co. v. District 65, United Auto., etc., 799 F.2d 57 (3d Cir.1986); Bandai America, Inc. v. Bally Midway Mfg. Co., 775 F.2d 70, 75 (3d Cir.1985), cert. denied, 475 U.S. 1047, 106 S.Ct. 1265, 89 L.Ed.2d 574 (1986); In re Colon, 941 F.2d 242 (3d Cir.1991); Confer v. Custom Eng’g Co., 952 F.2d 41 (3d Cir.1991). Although most of our sister circuits have held that a decision on fee entitlement is not final and appealable until quantified, some courts have assumed jurisdiction over an otherwise nonappealable aspect of a district court’s order when the order is final with regard to the substantive merits of the disposition. See e.g., Andrews v. Employees’ Retirement Plan of First Alabama Bancshares, Inc., 938 F.2d 1245, 1247-48 (11th Cir.1991); John v. Barron, 897 F.2d 1387, 1390 (7th Cir.), cert. denied, 498 U.S. 821, 111 S.Ct. 69, 112 L.Ed.2d 43 (1990); Vandenplas v. Muskego, 797 F.2d 425, 428 n. 1 (7th Cir.1986); Gilles v. Burton Construction Co., 736 F.2d 1142, 1145-46 (7th Cir.1984); Bittner v. Sadoff & Rudoy Industries, 728 F.2d 820, 826-27 (7th Cir.1984); Morgan v. Union Metal Mfg., 757 F.2d 792 (6th Cir.1985). Thus although an award of unquantified fees is interlocutory and hence not subject to appellate review as a general rule, the interest of judicial economy and orderliness in the administration of justice may require an appellate court to assume jurisdiction on matters beyond the ordinary scope of appellate jurisdiction. Nevertheless, even in those jurisdictions which recognize the exception to the general rule, the norm is that “an award of attorney’s fees which does not fix the amount of the award or specify a formula allowing the amount to be computed mechanically is not a final decision within the meaning of 28 U.S.C. § 1291.” John v. Barron at 1389 (quoting Lac Courte Oreilles Chippewa Ind. v. Wisconsin, 829 F.2d 601, 603 (7th Cir.1987) (collateral-order exception to the rule requiring appellant to show irreparable harm if appeal is postponed)). We have declined" }, { "docid": "8452396", "title": "", "text": "seeking judgment on four promissory notes executed by petitioners. The District Court awarded respondent principal and interest “plus reasonable attorney’s fees incurred” by respondent. App to Pet. for Cert. D-7. The District Court did not fix an amount for the attorney’s fees at that time. The Court of Appeals affirmed the judgment below; it mentioned, but did not specifically review, the District Court’s award of attorney’s fees. 752 F. 2d 307, 308 (CA7 1985). On respondent’s subsequent petition for fees, however, the District Court entertained petitioners’ Illinois law challenge to the fee award, and determined that Illinois law prohibited a fee award in this case. 635 F. Supp. 1257 (ND Ill. 1986). The Court of Appeals reversed this decision, finding that “reservation of the determination of the amount of attorney’s fees does not deprive the initial [district court] judgment of finality,” and therefore the District Court could not reconsider respondent’s entitlement to fees in its second decision. 816 F. 2d 341, 342 (CA7 1987). The Courts of Appeals are sharply divided over the question presented here: whether an award of attorney’s fees, when it arises out of a claimant’s underlying cause of action, is final before that award is quantified. See Beckwith Machinery Co. v. Travelers Indem nity Co., 815 F. 2d 286, 288-289 (CA3 1987) (canvassing the Courts of Appeals decisions). Four Circuits have held that an attorney’s fee award, when that award is not won in a collateral proceeding (such as a § 1988 action), is not final until the amount of the award is quantified. Beckwith Machinery Co., supra, at 290; F. H. Krear & Co. v. Nineteen Named Trustees, 776 F. 2d 1563, 1564 (CA2 1985); Todd Shipyards Corp. v. Auto Transportation, S. A., 763 F. 2d 745, 751 (CA5 1985); Fort v. Roadway Express, Inc., 746 F. 2d 744, 747 (CA11 1984). Two other Courts of Appeals have taken the approach applied by the Seventh Circuit here, according finality to all attorney’s fees awards prior to their quantification. Budinich v. Becton Dickinson & Co., 807 F. 2d 155, 157-158 (CA10 1986); Morgan v. Union Metal" }, { "docid": "18581556", "title": "", "text": "435 (1976), the Supreme Court held that an order which determines the issue of liability but leaves unresolved the assessment of damages is not final. See also McKinney v. Gannett Co., 694 F.2d 1240 (10th Cir.1982). Similarly, in Mekdeci v. Merrell National Laboratories, 711 F.2d 1510, 1523 (11th Cir.1983), the Eleventh Circuit held that an order awarding costs is not a final judgment until the court sets a definite amount. We think these cases state a general principle that is applicable to the case at bar. Thus, we conclude that if an award of attorney’s fees is not reduced to a sum certain, it is not final. Although the circuits are divided on this question, we choose to align ourselves with those circuits that have held, as we hold here, that an award of attorney’s fees is final for purposes of appeal only after the amount is determined. See Becton Dickinson & Co. v. District 65, United Automobile, Aerospace & Agricultural Implement Workers, 799 F.2d 57, 61 (3d Cir.1986); Fort v. Roadway Express, Inc., 746 F.2d 744, 747-48 (11th Cir.1984); Williams v. Ezell, 531 F.2d 1261, 1263 (5th Cir.1976). But see Bittner v. Sadoff & Rudoy Industries, 728 F.2d 820, 826-27 (7th Cir.1984). Our holding, in this case, is consistent with the requirement of finality. 28 U.S.C, § 1291. It is apparent from the order that the district court contemplated further proceedings prior to entering a fi nal order setting the amount of attorney’s fees. Thus, the order granting defendants’ motion for attorney’s fees is not sufficiently definite to be capable of enforcement and therefore cannot be considered a final judgment for purposes of appeal. In addition, our holding avoids piecemeal appeals by eliminating the potential for two appeals: one questioning liability for fees and the second questioning the amount of the fees. In their response to the show cause order, plaintiffs rely extensively on Memphis Sheraton Corp. v. Kirkley, 614 F.2d 131 (6th Cir.1980), for the proposition that an award of attorney’s fees which does not fix the amount of such fees is final. We note, however, that more" }, { "docid": "23229940", "title": "", "text": "of fees and costs to which they are entitled. According to WestPoint, if we were to determine expeditiously that the district court’s award of fees and costs to plaintiffs was error, we would prevent the needless expenditure of judicial resources. WestPoint contends that we have jurisdiction pursuant to 28 U.S.C. § 1291 or, alternatively, under the doctrine of pendent appellate jurisdiction. Under section 1291, we review final decisions of the district court that “leave) ] nothing for the court to do but execute the judgment.” Catlin v. United States, 324 U.S. 229, 233, 65 S.Ct. 631, 633-34, 89 L.Ed. 911 (1945). Where attorney’s fees and costs have been awarded, but not determined, the order is not final. See Discon, Inc. v. NYNEX Corp., 4 F.3d 130, 133 (2d Cir.1993) (“[A] sanction order that leaves the amount of the sanction for later determination is not final and, therefore, not appealable under § 1291.”); see Pridgen v. Andreses 113 F.3d 391, 394 (2d Cir.1997) (“)R]ules of finality for sanction orders parallel the rules for attorney fee awards.” (citation and internal quotation marks omitted)); F.H. Krear & Co. v. Nineteen Named Trustees, 776 F.2d 1563, 1564 (2d Cir.1985) (per cu- riam) (“We have held that where attorneys’ fees are a contractually stipulated element of damages, a judgment is not final until the fees have been determined.”). Under the doctrine of pendent appellate jurisdiction, however, “once we have taken jurisdiction over one issue in a case, we may, in our discretion, consider otherwise nonappealable issues in the case as well, where there is sufficient overlap in the factors relevant to the appealable and nonap-pealable issues to war-rant our exercising plenary authority over the appeal.” San Filippo v. U.S. Trust Co. of New York, 737 F.2d 246, 255 (2d Cir.1984), cert. denied, 470 U.S. 1035, 105 S.Ct. 1408, 84 L.Ed.2d 797 (1985); see Synergy Gas Co. v. Sasso, 853 F.2d 59, 62 (2d Cir.), cert. denied, 488 U.S. 994, 109 S.Ct. 559, 102 L.Ed.2d 585 (1988); Pridgen, 113 F.3d at 394 (in Synergy, the adjudication “was at most an exercise of pendent appellate jurisdiction” (citation" }, { "docid": "14031249", "title": "", "text": "1712, 135 L.Ed.2d 1 (1996). Remands based on ^ merits determination of a nonjurisdictional issue are fully appeal-able. SBKC, 105 F.3d at 580. We have held specifically that a remand based on a district court’s decision to honor a forum selection clause is appealable under the collateral order doctrine. Milk ‘N’ More, Inc. v. Beavert, 963 F.2d 1342, 1344 (10th Cir.1992). Accordingly, we are satisfied that appellate review of the district court’s remand order is proper here. Conversely, this court lacks jurisdiction to entertain U.S. Filter’s appeal from the district court’s order awarding attorneys’ fees and costs. An award of attorneys’ fees is not final and appealable within the meaning of 28 U.S.C. § 1291 until it is reduced to a sum certain. Phelps v. Washburn Univ. of Topeka, 807 F.2d 153, 154 (10th Cir.1986) (per curiam). Since the district court has not fixed the amount of fees in this case, that portion of the award is neither final nor appealable within the meaning of 28 U .S.C. § 1291 and is therefore not reviewable by this court. Phelps, 807 F.2d at 155. This, however, does not preclude our review of the district court’s remand order. It is well settled that “a decision on the merits is a final decision for purposes of § 1291 whether or not there remains for adjudication a request for attorney’s fees attributable to the case.” Budinich v. Becton Dickinson & Co., 486 U.S. 196, 202-03, 108 S.Ct. 1717, 100 L.Ed.2d 178 (1988) (quotation omitted). Consequently, we will not review the award of attorneys’ fees, and turn our attention instead to the district court’s interpretation of the forum selection clause. The Forum Selection Clause U.S. Filter’s arguments as to why the district court’s remand order was erroneous can be distilled to two main points. First, U.S. Filter contends the contract clause at issue is not a mandatory forum selection clause as defined by this court because the clause is ambiguous, does not specify a particular county for venue, and does not express a clear and unequivocal waiver of its right to remove the action to" } ]

[ { "docid": "17354571", "title": "", "text": "U.S. 545, 550-52, 122 S.Ct. 2406, 153 L.Ed.2d 524 (2002). Under the applicable statute, the district court’s finding that the defendant had brandished the firearm resulted in an enhanced mandatory minimum sentence. Id. at 550-51, 122 S.Ct. 2406. Alleyne v. United States overruled Harris, reasoning that “[f]acts that increase the mandatory minimum sentence are ... elements and must be submitted to the jury and found beyond a reasonable doubt.” — U.S. —, 133 S.Ct. 2151, 2158, 186 L.Ed.2d 314 (2013). Nevertheless, Alleyne recognized an exception to this rule that a defendant’s prior convictions need not be submitted to the jury even where those convictions form the basis for an increased sentence. Id. at 2160 n. 1. In Alleyne, the Supreme Court expressly declined to revisit Almendarez-Torres. See id.; see also United States v. Carrigan, 724 F.3d 39, 51 n. 4 (1st Cir. 2013), cert. denied, — U.S. —, 134 S.Ct. 668, 187 L.Ed.2d 441 (2013) (“[Appellant] ... ask[ed] this court to find that his sentence is unconstitutional because the question of his status as an [armed career criminal] should have been submitted to the jury pursuant to [Alleyne ]. We disagree. In Alleyne, the Supreme Court stated that [Almendarez-Torres ] remains good law”) (citations omitted). This being the case, we must reject Paladin’s argument that his Fifth and Sixth Amendment rights were implicated when the indictment did not set forth his prior convictions and the jury was not required to pass upon them. B. Does Alleyne Require Submission of Drug Quantity to the Jury? Paladin contends that the district court erred by not submitting to the jury the question of whether Paladin was individually responsible for the charged quantity of cocaine (five kilograms or more). Because Paladin did not preserve this argument, our review is for plain error. See Harakaly, 734 F.3d at 94. To prevail, Paladin must show that the error was “prejudicial and affected his substantial rights, and ... caused a miscarriage of justice or seriously undermined the integrity or public reputation of judicial proceedings.” United States v. Carpenter, 736 F.3d 619, 632 (1st Cir.2013), cert, denied, —" } ]

[ { "docid": "16130089", "title": "", "text": "three conditions, we may exercise our discretion to recognize the error only if it seriously affects the fairness, integrity, or public reputation of judicial proceedings. Id. An error is plain when it contradicts precedent from the Supreme Court or our Court directly resolving thé issue. See United States v. Lejarde-Rada, 319 F.3d 1288, 1291 (11th Cir. 2003). “Errors [] affect a substantial right of a party if they have a ‘substantial influence’ on the outcome of a case or leave ‘grave doubt’ as to whether they affected the outcome of a case.” Turner, 474 F.3d at 1276 (quotation omitted). But “where the effect of an error on the result in the district court is uncertain or indeterminate,” the . defendant has not met his burden of demonstrating prejudice for purposes of plain error review. United States v. Rodriguez, 398 F.3d 1291, 1301 (11th Cir. 2005). And, finally, as we said earlier, we review constitutional issues de novo. Campbell, 743 F.3d at 805. The Sixth Amendment’s Confrontation Clause prevents the admission of a witness’s testimonial statement when the witness does not appear at trial, unless he is unavailable to testify and the defendant had a prior opportunity to cross-examine him. Id. at 806. However, a United States State Department certification of jurisdiction under ‘the MDLEA does not implicate the Confrontation Clause because it does not affect the guilt or innocence of a defendant. See id. at 806-09. In Alleyne, the Supreme Court revisited two of its prior cases: (1) Apprendi v. New Jersey, 530 U.S. 466, 120 S.Ct. 2348, 147 L.Ed.2d 435 (2000), which requires that, other than the fact, of a prior conviction, any fact that increases the penalty for a crime beyond the prescribed statutory maximum be submitted to a jury and proved beyond a reasonable doubt; and (2) Harris v. United States, 536 U.S. 545, 567-68, 122 S.Ct. 2406, 153 L.Ed.2d 524 (2002), which held that judicial fact-finding that increased the applicable statutory mandatory-minimum sentence was permissible under the Sixth Amendment. Alleyne, 133 S.Ct. at 2157-58. In Alleyne, the Supreme Court expressly overturned Harris because it was inconsistent" }, { "docid": "2749847", "title": "", "text": "Finally, the drug-distribution expert testified that drug traffickers routinely use firearms for intimidation and protection-consistent with Shaw’s own admission. Accordingly, a reasonable trier of fact could find a nexus between Shaw’s possession of the charged firearm and the drug crime. The district court therefore did not err in denying Shaw’s motion for judgment of acquittal. With regard to his sentencing, Shaw asserts that the district court violated his Sixth Amendment right to a jury trial by imposing a seven-year mandatory-minimum sentence under 18 U.S.C. § 924(c). “This court reviews de novo constitutional challenges to a sentence.” United States v. Hyles, 521 F.3d 946, 958 (8th Cir.2008). The district court concluded that the mandatory minimum applied because it found that Shaw had brandished a firearm during and in relation to a drug-trafficking crime. See § 924(c)(l)(A)(ii). Shaw contends, however, that the mandatory minimum should have been five years because the jury did not find that Shaw brandished a firearm in relation to his drug-trafficking offense. The Government concedes that the district court’s determination of a seven-year mandatory minimum in the absence of a jury finding violated the Supreme Court’s decision in Alleyne v. United States, - U.S. -, 133 S.Ct. 2151, 186 L.Ed.2d 314 (2013), and our case law compels us to agree. See United States v. Lara-Ruiz, 721 F.3d 554, 558-59 (8th Cir.2013) (remanding for resentencing even though the sentence imposed exceeded the mandatory minimum challenged). Therefore, we vacate the sentence and remand for resentencing. III. Conclusion For the foregoing reasons, we affirm the district court’s denial of Shaw’s motion for judgment of acquittal. However, due to the Alleyne violation in determining the mandatory-minimum sentence, we vacate the sentence and remand for resentencing. . Shaw also raises arguments concerning the procedural and substantive reasonableness of his sentence. As in Lara-Ruiz, however, we decline to address those arguments. 721 F.3d at 559." }, { "docid": "23317560", "title": "", "text": "so fast?,” was hearsay and that its admission would violate Mr. Thomas’s right to cross-examine or confront the declarant. Id. at 133. The government argued that Mohammed’s question could not qualify as a statement or assertion, and thus was not hearsay; or, in the alternative, that admission of the statement was permissible under the present sense impression exception to the hearsay rule or as a statement against interest. Id. at 140; see also Fed.R.Evid. 803(1) & 804(b)(3). In overruling the objection, the district court posited: “I think it’s — I’m not sure — I’m not convinced it’s hearsay. And even if it is, I think it comes under the exception for present-sense exception.” Id. at 142. While a district court’s decisions regarding the admission of evidence are reviewed for abuse of discretion, this court reviews de novo the legal question of whether the admission of a non-testifying co-defendant’s statement at trial violates the accused’s Sixth Amendment confrontation right. United States v. Verduzco-Martinez, 186 F.3d 1208, 1212 (10th Cir.1999). In so doing, we must apply the rule set forth in Crawford v. Washington, 541 U.S. 36, 124 S.Ct. 1354, 158 L.Ed.2d 177 (2004). In Crawford the Supreme Court held that the admission of testimonial hearsay at trial, absent the unavailability of the declarant and. a prior opportunity for cross-examination by the defendant, violates the accused’s confrontation right under the Sixth Amendment. Id. at 68, 124 S.Ct. 1354. Applied to the facts of this case, Crawford necessitates the following multi-part inquiry. A. Whether Mohammed’s Question, “How Did You Guys Find Us So Fast?, ” Was Hearsay In addressing Mr. Thomas’s argument, we must first ascertain whether the question, “How did you guys find us so fast?,” is properly considered hearsay. It hardly needs stating that the admission of hearsay is frowned upon and generally inadmissible at trial. Fed.R.Evid. 802. Under the Federal Rules of Evidence, hearsay “is a statement, other than one made by the declarant while testifying at the trial or hearing, offered in evidence to prove the truth of the matter asserted.” Fed. R.Evid. 801(c). A statement “is (1) an" }, { "docid": "19195635", "title": "", "text": "S.Ct. 1354 (declining to “spell out a comprehensive definition of ‘testimonial’ ”); id. at 51-52, 124 S.Ct. 1354 (providing “[vjarious formulations of ... ‘testimonial’ statements”). Martinez contends his conviction must be overturned by reason of the Crawford violations unless the Government proves beyond a reasonable doubt that the errors did not contribute to the jury’s verdict. That, however, is not the standard applicable in Martinez’s case, because it applies only when the claim of error has been preserved below. See, e.g., United States v. Casamento, 887 F.2d 1141, 1179 (2d Cir.1989). Martinez made no objection in the district court to this evidence based on the Confrontation Clause. Rather, our review is under one of two alternative “plain error” standards. Under the classic plain error standard, the court may overturn a conviction on the basis of a forfeited error only where the defendant shows an error that (1) was “plain,” (2) “affect[ed] substantial rights,” and (3) “seriously affect[ed] the fairness, integrity or public reputation of the judicial proceedings.’ ” United States v. Nucci, 364 F.3d 419, 421 (2d Cir.2004) (internal quotation marks omitted). In United States v. Frady, 456 U.S. 152, 102 S.Ct. 1584, 71 L.Ed.2d 816 (1982), the Supreme Court elaborated that reversal for plain error should “be used sparingly, solely in those circumstances in which a miscarriage of justice would otherwise result.” Id. at 163 n. 14, 102 S.Ct. 1584. Alternatively, we have employed the “modified plain error” standard, when “ ‘the source of plain error [has been] a supervening decision.’ ” United States v. Outen, 286 F.3d 622, 639 (2d Cir.2002) (quoting United States v. Monteleone, 257 F.3d 210, 223 (2d Cir.2001)). This standard requires “the government, not the defendant, [to bear] the burden [of] demonstrat[ing] that the error did not affect substantial rights.” Outen, 286 F.3d at 639. We need not resolve which is the appropriate the standard because we find that, under either standard, Martinez is not entitled to have his conviction overturned. The Government’s lawful evidence so powerfully established that the objective of the conspiracy was to murder, not to kidnap, that the Crawford evidence" }, { "docid": "16130087", "title": "", "text": "that the captured vessel was the Venus, and that Cruickshank and Acosta were on board. Trinidad also said that a scan performed on the Venus tested positive for cocaine, and that he found hidden kilogram-size packages of cocaine after drilling a hole in a bench on the vessel. Ultimately, authorities found a han-dheld GPS device, a handheld two-way radio, and approximately 171 kilograms of cocaine on the Venus. As the evidence at trial showed, while Cruickshank was on the Venus, it was operated without lights, it attempted evasive maneuvers when the Coast Guard helicopter was overhead, and the occupants threw items overboard to conceal their starting point. Evidence also revealed that Cruickshank had said he was comfortable with the drugs being on the boat, he programmed the vessel’s GPS devices, he came up with a cover story for the authorities, and he ultimately told the Coast Guard that he was in charge and gave the false statement about why they were at sea. There was more than sufficient evidence to establish Cruickshank’s guilt beyond a reasonable doubt on both charges. III. We are also unpersuaded by Cruickshank’s claims that the district court erred by establishing jurisdiction under the MDLEA in two respects: (1) by relying on a United States Department of State certification, in violation of the Confrontation Clause of the Constitution; and (2) by removing from the jury the question of fact concerning jurisdiction, in violation of Alleyne v. United States, 570 U.S. —, 133 S.Ct. 2151, 186 L.Ed.2d 314 (2013). Normally, we review whether hearsay statements are testimonial de novo. United States v. Caraballo, 595 F.3d 1214, 1226 (11th Cir. 2010). But if a defendant (like Cruickshank) did not raise an objection based on his confrontation right at trial, we review a confrontation claim for plain error. United States v. Charles, 722 F.3d 1319, 1322 (11th Cir. 2013). To show plain error, the'defendant must establish (1) an error, (2) that is plain or obvious, and (3) that affected his substantial rights. United States v. Turner, 474 F.3d 1265, 1276 (11th Cir. 2007). And; if a defendant satisfies these" }, { "docid": "897623", "title": "", "text": "trash searches, stationary surveillance, and interviews with witnesses would be unproductive or dangerous given specific facts about the Mexican Mafia and the particular case. In this case, law enforcement officers specifically sought to gain evidence and knowledge of how the Mexican Mafia and associated gangs were operating through extortion and drug trafficking. In addition, we have “consistently upheld findings of necessity where traditional investigative techniques lead only to apprehension and prosecution of the main conspirators, but not to apprehension and prosecution of ... other satellite conspirators.” Rivera, 527 F.3d at 902 (citing McGuire, 307 F.3d at 1198). After reviewing the factual statements in the affidavits, which include the purpose of the investigation and the information sought, we cannot say that the issuing judge abused her discretion in finding necessity in the circumstances presented here. III. SENTENCING ISSUES A. Sentencing Enhancement under 21 U.S.C. § 851 Rodriguez makes two arguments to attack his sentence enhancement under 21 U.S.C. § 851. First, he contends that the statutory scheme under § 851 violates Rodriguez’s Sixth Amendment right to a jury trial. Second, he argues that the district court erred in applying the sentencing enhancement because the government failed to prove his identity in the three prior convictions that were the basis for the enhancement. Rodriguez’s first argument lacks merit. Relying on Alleyne v. United States, Rodriguez argues that the sentence enhancement scheme under '§ 851, which increases an individual’s mandatory minimum sentence, violates the Sixth Amendment because “facts that increase mandatory minimum sentences must be submitted to the jury.” — U.S. -, 133 S.Ct. 2151, 2163, 186 L.Ed.2d 314 (2013). The Supreme Court in Almendarez-Torres v. United States held that the fact of a prior conviction used to enhance a sentence is a sentencing factor and not an element of the offense that must be decided by a jury. 523 U.S. 224, 247, 118 S.Ct. 1219, 140 L.Ed.2d 350 (1998). We have “repeatedly held ... that Almendarez-Torres is binding unless it is expressly overruled by the Supreme Court.” United States v. Leyva-Martinez, 632 F.3d 568, 569 (9th Cir. 2011); see also United States" }, { "docid": "9460118", "title": "", "text": "system belonging to this Ports Command Management, W.M. The present document is issued upon request of the interested party, in the Municipality of Santo Domingo East, on the 16th day of the month of August, of year 2012.” The Certification is signed by Mario Alberto De Jesús Rey-noso, Vessel Captain, DEMN, Ports Command Director, War Marine. Id. The defendants’ joint motion also included a copy of the USCG’s report, see Docket No. 95-3 and 95-4. Defendant Rosario alleges that “[f]or the United States to have jurisdiction over a vessel in the high seas, and over the occupants, the government must prove that the vessel is a vessel without nationality.” See Docket No. 94 at page 5. The Court disagrees, as jurisdiction is not an element of 21 U.S.C. §§ 952, 960, 963. As held by the Court in Matos-Luchi, 627 F.3d at 4, “the ‘jurisdiction’ of the United States over a vessel under the MDLEA was ‘not an element of the offense’ but a matter to be determined ‘solely by the trial judge,’ id. § 1138(a)(5) (now codified at 46 U.S.C. § 70504(a)), and that a defendant had no standing to claim that enforcement violated ‘international law’-reserving such objections only to foreign nations, id. § 1138(a)(4) (now codified at 46 U.S.C. § 70505).” Hence, the Court finds that the defendants are impaired to challenge a violation to international law under the MDLEA with the sole purpose to dismiss an indictment or to warrant an acquittal. See Matos-Luchi, 627 F.3d at 6: The controlling question is whether at the point at which the authorities confront the vessel, it bears the insignia or papers of a national vessel or its master is prepared to make an affirmative and sustainable claim of nationality. To read the MDLEA more restrictively would mean that the master and crew need only carry no papers and jump overboard to avoid having their vessel classed as stateless. Cf. González, 311 F.3d at 449 (Torruella, J., concurring in the judgment). The Court further finds, based on the evidence presented, that the USCG complied with due diligence at the time" }, { "docid": "21073382", "title": "", "text": "October 28, 2005, based on an adjusted offense level of 33, a criminal history category of I, and an advisory Guidelines range of 135-168 months’ imprisonment, the district court sentenced Estupinan to 135 months’ imprisonment. Estupinan timely appealed. II. DISCUSSION On appeal, Estupinan argues that the MDLEA is unconstitutional. Specifically, Estupinan contends: (1) that Congress exceeded its authority under the “Piracies and Felonies Clause” of the Constitution in enacting the MDLEA; and (2) that the MDLEA is unconstitutional because it removes the element of jurisdiction from the jury’s consideration. We conclude that both arguments lack merit. A. Congress’s Authority Under the Piracies and Felonies Clause Preliminarily, we note that Estupinan failed to raise his Piracies and Felonies Clause argument before the district court. Ordinarily, this would cause us to review for plain error, and indeed, the government here urges us to apply plain-error review. See United States v. Moriarty, 429 F.3d 1012, 1018 (11th Cir.2005) (“Constitutional objections not raised before the district court are reviewed only for plain error.”). However, Estupinan contends that he is entitled to de novo review because he is actually arguing that the district court lacked subject-matter jurisdiction over the instant case as a result of Congress’s improper enactment of the MDLEA, and subject-matter jurisdiction can be raised at any time. See United States v. Perez, 956 F.2d 1098, 1101 (11th Cir.1992) (reviewing previously unraised issue of district court’s subject matter jurisdiction de novo). We need not resolve the question of which standard of review is appropriate here, because even applying the more exacting standard of de novo review, we conclude that the district court did not err by failing to hold sua sponte that Congress exceeded its authority under the Piracies and Felonies Clause in enacting the MDLEA. The Piracies and Felonies Clause empowers Congress “[t]o define and punish Piracies and Felonies on the high Seas, and Offences against the Law of Nations.” U.S. Const., art. I, § 8, cl. 10. In pertinent part, the MDLEA provides that “[i]t is unlawful for any person ... on board a vessel subject to the jurisdiction of the" }, { "docid": "16130092", "title": "", "text": "requirement does not raise a factual issue that, under the common law, would have been considered an element of the offense. Id. at 1108. This is because the jurisdictional requirement is intended to act as a diplomatic courtesy,- and does not bear on the individual defendant’s guilt. Id. at 1108-09. Therefore, because the jurisdictional requirement under the MDLEA is not an element of the offense, neither the Due Process Clause nor the Sixth Amendment to the Constitution are implicated when the jurisdictional requirement under the MDLEA is not proven to the satisfaction of a jury. Id. at 1111-12. As an initial matter, we review Cruick-shank’s Confrontation Clause argument for plain error because he failed to raise it at any time before the district court, although we review his Alleyne argument de novo, since he raised that one in the district , court. But under any standard of review, plain or otherwise, there was no Confrontation Clause violation. A United States Department of State certification of jurisdiction under the MDLEA does not implicate the Confrontation Clause because it does not affect the guilt or innocence of a defendant. Campbell, 743 F.3d at 809. Nor did the district court err by rejecting Cruickshank’s Alleyne argument, since we’ve squarely held the jurisdictional requirement is not an element of the offense, need not be determined by a jury, and does not violate the Due Process Clause or the Sixth Amendment. 46 U.S.C. § 70504(a); Tinoco, 304 F.3d at 1108, 1111-12. These claims are without merit. IV. As for Cruickshank’s last claim, however — that the district court erred in denying him a minor-role reduction under U.S.S.G. §3B1.2(b) — we are compelled to vacate and remand for resen-tencing. We review a district court’s denial of a role reduction for clear error. United States v. Bernal-Benitez, 594 F.3d 1303, 1320 (11th Cir. 2010). Clear error review is deferential, and “we will not disturb a district court’s findings unless we are left with a definite and firm conviction that a mistake has been committed.” United States v. Ghertler, 605 F.3d 1256, 1267 (11th Cir. 2010) (quotations omitted)." }, { "docid": "14444002", "title": "", "text": "to comply with the Sixth Amendment. The presentence report was amended to acknowledge that, post -Booker, the district court was required to consider, but no longer bound by, the Guidelines. Evans-Martinez did not object to the amended presentence report. At sentencing, the Government moved for a downward departure on the basis of Evans-Martinez’s cooperation. The Government noted that Evans-Martinez supplied law enforcement agents with his email password and, as a result, seven other sexual predators in seven cities were identified, tried and convicted. The district court accepted the plea agreement, adopted the conclusions of the presentence report as amended and “granted” the Government’s motion for a downward departure. The court determined, however, that the motion only “released” it from its obligation to impose a sentence at or above the mandatory minimum sentence of 10 years and that it was still able to sentence Evans-Martinez up to the statutory maximum of 20 years. The district court commented on the disturbing nature of the case and summarized the facts as they were related in the presentence report. Taking into account Evans-Martinez’s cooperation, the court then sentenced him to a term of 15 years and a period of supervised release. II Pre-Booker, we reviewed the adequacy of a district court’s notice of its intent to upwardly depart de novo. United States v. Hernandez, 251 F.3d 1247, 1250 (9th Cir.2001). Because Evans-Martinez failed to object at sentencing to the adequacy of notice his claim is reviewed for plain error. Id. “Plain error is ‘(1) error, (2) that is plain, and (3) that affects substantial rights.’ ” United States v. Ameline, 409 F.3d 1073, 1078 (9th Cir.2005) (en banc) (quoting United States v. Cotton, 535 U.S. 625, 631, 122 S.Ct. 1781, 152 L.Ed.2d 860 (2002)). If the failure to provide notice is plain error, we will grant relief if it “seriously affects the fairness, integrity, or public reputation of judicial proceedings.” Id. (quoting Cotton, 535 U.S. at 631, 122 S.Ct. 1781). In Burns v. United States, 501 U.S. 129, 138, 111 S.Ct. 2182, 115 L.Ed.2d 123 (1991), the Supreme Court holds that “before the district" }, { "docid": "16130091", "title": "", "text": "with its decision in Apprendi, and held that any facts that increase the applicable statutory mandatory-minimum sentence for'a crime must be submitted to a jury and found beyond a reasonable doubt. Id. at 2155, 2163. The MDLEA expressly provides that the United States’s jurisdiction over a vessel is not an element of the offense, and that jurisdiction is a preliminary question of law to be resolved by the district court. 46 U.S.C. § 70504(a) (“Jurisdiction of the United States with respect to a vessel subject to this chapter is not an element of an offense. Jurisdictional issues arising under this chapter are preliminary questions of law to be determined solely by the trial judge.”). In Tinoco, we asked whether the MDLEA jurisdictional requirement raised “factual questions that traditionally would have been treated as elements of an offense under the common law, thereby triggering the constitutional safeguards provided by the Due Process Clause and the Sixth Amendment right to a jury trial.” 304 F.3d at 1107-08. Analyzing the common law, we held that the MDLEA’s jurisdictional requirement does not raise a factual issue that, under the common law, would have been considered an element of the offense. Id. at 1108. This is because the jurisdictional requirement is intended to act as a diplomatic courtesy,- and does not bear on the individual defendant’s guilt. Id. at 1108-09. Therefore, because the jurisdictional requirement under the MDLEA is not an element of the offense, neither the Due Process Clause nor the Sixth Amendment to the Constitution are implicated when the jurisdictional requirement under the MDLEA is not proven to the satisfaction of a jury. Id. at 1111-12. As an initial matter, we review Cruick-shank’s Confrontation Clause argument for plain error because he failed to raise it at any time before the district court, although we review his Alleyne argument de novo, since he raised that one in the district , court. But under any standard of review, plain or otherwise, there was no Confrontation Clause violation. A United States Department of State certification of jurisdiction under the MDLEA does not implicate the Confrontation Clause" }, { "docid": "16130079", "title": "", "text": "and bécause “the trafficking of narcotics is condemned universally by law-abiding nations,” we rejected the argument “that it is fundamentally unfair for Congress to provide for the punishment of persons apprehended with narcotics on the high seas.” Id. (quotations omitted). This is especially true, we explained, when vessels on the high seas “are engaged in conduct that has a potentially adverse effect and is generally recognized as a crime by nations that have reasonably developed legal systems.” Id. (quotations omitted). We also explained in Campbell that the “Due Process Clause of the Fifth Amendment does not prohibit the trial and conviction of an alien captured on the high seas while drug trafficking.” Id. at 812 (citing United States v. Rendon, 354 F.3d 1320, 1326 (11th Cir. 2003)). In our view, the MDLEA “provides clear notice that all nations prohibit and condemn drug trafficking aboard stateless vessels on the high seas.” Id. In this case, all of Cruickshank’s arguments concerning the MDLEA are foreclosed by our prior precedent. In Campbell, we reaffirmed that Congress did not exceed its authority by enacting the MDLEA; we determined that no jurisdictional nexus was required under the MDLEA; and we concluded that convictions under the MDLEA do not violate the Due Process Clause of the Constitution. See id. at 809-10, 812. Because we are bound by our prior precedent concerning all of' Cruickshank’s challenges to the MDLEA, his arguments necessarily fail. II. We are also unpersuaded by Cruickshank’s claim that the district court erred in denying his motion for judgment of acquittal based on insufficient evidence of mens rea. We review de novo whether sufficient evidence supports a conviction, drawing all reasonable factual inferences from the evidence in favor of the verdict. United States v. Beckles, 565 F.3d 832, 840 (11th Cir. 2009), Evidence is sufficient if a reasonable trier of fact could have found that it established guilt beyond a reasonable doubt. Id. In rebutting the government’s evidence, a defendant must do more than put forth a reasonable hypothesis of innocence, because the issue is whether a reasonable jury could have convicted, not whether" }, { "docid": "897624", "title": "", "text": "a jury trial. Second, he argues that the district court erred in applying the sentencing enhancement because the government failed to prove his identity in the three prior convictions that were the basis for the enhancement. Rodriguez’s first argument lacks merit. Relying on Alleyne v. United States, Rodriguez argues that the sentence enhancement scheme under '§ 851, which increases an individual’s mandatory minimum sentence, violates the Sixth Amendment because “facts that increase mandatory minimum sentences must be submitted to the jury.” — U.S. -, 133 S.Ct. 2151, 2163, 186 L.Ed.2d 314 (2013). The Supreme Court in Almendarez-Torres v. United States held that the fact of a prior conviction used to enhance a sentence is a sentencing factor and not an element of the offense that must be decided by a jury. 523 U.S. 224, 247, 118 S.Ct. 1219, 140 L.Ed.2d 350 (1998). We have “repeatedly held ... that Almendarez-Torres is binding unless it is expressly overruled by the Supreme Court.” United States v. Leyva-Martinez, 632 F.3d 568, 569 (9th Cir. 2011); see also United States v. Vallejos, 742 F.3d 902, 906 (9th Cir. 2014). We therefore conclude that the district court’s application of § 851 to enhance Rodriguez’s sentence did not violate his Sixth Amendment rights. Rodriguez’s second argument requires fuller discussion. A grand jury indicted Rodriguez for violating 21 U.S.C. § 841(a)(1). Section 841 allows the government to seek increased penalties if the individual commits the violation after a prior felony drug conviction has become final. 21 U.S.C. § 841(b)(1)(A)(viii). Pursuant to the procedures set forth in § 851, the government filed an information seeking enhanced penalties to increase Rodriguez’s potential mandatory minimum from 10 years to 20 years. § 851(a). Rodriguez filed a written response challenging the prior convictions on the grounds that (1) the statutory scheme under 21 U.S.C. § 851 is unconstitutional, and (2) two of the three prior convictions were not controlled-substance offenses that could serve as a basis for the enhancement — an issue he does not raise on appeal. At a hearing before sentencing, the government presented certified copies of three prior convictions" }, { "docid": "16130088", "title": "", "text": "reasonable doubt on both charges. III. We are also unpersuaded by Cruickshank’s claims that the district court erred by establishing jurisdiction under the MDLEA in two respects: (1) by relying on a United States Department of State certification, in violation of the Confrontation Clause of the Constitution; and (2) by removing from the jury the question of fact concerning jurisdiction, in violation of Alleyne v. United States, 570 U.S. —, 133 S.Ct. 2151, 186 L.Ed.2d 314 (2013). Normally, we review whether hearsay statements are testimonial de novo. United States v. Caraballo, 595 F.3d 1214, 1226 (11th Cir. 2010). But if a defendant (like Cruickshank) did not raise an objection based on his confrontation right at trial, we review a confrontation claim for plain error. United States v. Charles, 722 F.3d 1319, 1322 (11th Cir. 2013). To show plain error, the'defendant must establish (1) an error, (2) that is plain or obvious, and (3) that affected his substantial rights. United States v. Turner, 474 F.3d 1265, 1276 (11th Cir. 2007). And; if a defendant satisfies these three conditions, we may exercise our discretion to recognize the error only if it seriously affects the fairness, integrity, or public reputation of judicial proceedings. Id. An error is plain when it contradicts precedent from the Supreme Court or our Court directly resolving thé issue. See United States v. Lejarde-Rada, 319 F.3d 1288, 1291 (11th Cir. 2003). “Errors [] affect a substantial right of a party if they have a ‘substantial influence’ on the outcome of a case or leave ‘grave doubt’ as to whether they affected the outcome of a case.” Turner, 474 F.3d at 1276 (quotation omitted). But “where the effect of an error on the result in the district court is uncertain or indeterminate,” the . defendant has not met his burden of demonstrating prejudice for purposes of plain error review. United States v. Rodriguez, 398 F.3d 1291, 1301 (11th Cir. 2005). And, finally, as we said earlier, we review constitutional issues de novo. Campbell, 743 F.3d at 805. The Sixth Amendment’s Confrontation Clause prevents the admission of a witness’s testimonial statement" }, { "docid": "9460117", "title": "", "text": "Martinez, responded to the USCG’s inquiry, that “he [the master] was in the process of registering the vessel [ALICANTINO] in the Dominican Republic.” See Docket No. 96, page 2. “No other indicators of nationality appeared on the vessel.” Id. “Accordingly, Coast Guard personnel approached Dominican Republic authorities and requested confirmation of the suspect vessel’s regis try to which they were informed that there was no registration record for the vessel in the Dominican Republic.” Id. Hence, the USCG proceeded to treat the vessel ALI-CANTINO “as a vessel without nationality” and defendants Rosario and Martinez were arrested and transported to San Juan, Puerto Rico for further interrogation, investigation and processing. Id. Reference is made to the defendants’ Joint Motion Submitting, Docket No. 95, and Exhibits No. 95-1 and 95-2, the certification issued by the Dominican Republic War Marine on August 16, 2012, wherein the Dominican Republic Management of Ports Command stated: “By means of this letter we want to make known that there is no vessel by the name of “ALICANTI-NO” listed on the archives registry system belonging to this Ports Command Management, W.M. The present document is issued upon request of the interested party, in the Municipality of Santo Domingo East, on the 16th day of the month of August, of year 2012.” The Certification is signed by Mario Alberto De Jesús Rey-noso, Vessel Captain, DEMN, Ports Command Director, War Marine. Id. The defendants’ joint motion also included a copy of the USCG’s report, see Docket No. 95-3 and 95-4. Defendant Rosario alleges that “[f]or the United States to have jurisdiction over a vessel in the high seas, and over the occupants, the government must prove that the vessel is a vessel without nationality.” See Docket No. 94 at page 5. The Court disagrees, as jurisdiction is not an element of 21 U.S.C. §§ 952, 960, 963. As held by the Court in Matos-Luchi, 627 F.3d at 4, “the ‘jurisdiction’ of the United States over a vessel under the MDLEA was ‘not an element of the offense’ but a matter to be determined ‘solely by the trial judge,’ id. §" }, { "docid": "11988754", "title": "", "text": "punishment. We have reiterated that conclusion many times. See, e.g., United States v. Cheshier, 39 Fed.Appx. 335, 336-37 (7th Cir. 2002); United States v. Luney, 17 Fed.Appx. 424, 425 (7th Cir. 2001). Defendants argue that Deal’s, holding should be rejected. They are free to ask the Supreme Court to do so. 2. Second or Subsequent Not Found by • Jury Defendants did not argue to the district court that second or subséquent had to be found by the jury. Therefore, we review for plain error. United States v. Kirklin, 727 F.3d 711, 717 (7th Cir. 2013). There was no error, however, because Defendants’ argument is foreclosed by Almendarez-Torres v. United States, which held that recidivism is not an “element” of an offense, and so it need not be found by a jury. 523 U.S. 224, 244-47, 118 S.Ct. 1219, 140 L.Ed.2d 350 (1998). We have previously “recognize[d] that there is some tension between Alleyne and Almendarez-Torres,” but we leave that tension “for the Supreme Court to resolve.” United States v. Lomax, 816 F.3d 468, 477-78 (7th Cir. 2016). M. Alleyne Error: “Brandish” Not Found By Jury We turn to the final argument on appeal. In light of Alleyne v. United States, — U.S. —, 133 S.Ct. 2151, 186 L.Ed.2d 314 (2013), Defendants Jorge, Hector, and Sparkman argue that they were improperly subjected to a 7-year mandatory minimum on count 8 for brandishing a firearm where the jury only convicted them of using or carrying a firearm. We agree. Hector and Jorge raised this argument to the district court in anticipation of Alleyne, preserving de novo review. Lomax, 816 F.3d at 477. Sparkman, however, did not raise the issue, triggering review for plain error, Cureton, 739 F.3d at 1045. Alleyne held that because a finding of brandishing increases the mandatory minimum, it is an “element” of the offense that must be found by the jury. 133 S.Ct. at 2155, 2162-63. There is no doubt that it was error under Alleyne to impose a mandatory minimum of 7 years for “brandishing” where the jury only convicted of “use,” which has a 5-year" }, { "docid": "22157550", "title": "", "text": "ground that his prior convictions were not “controlled substance offense[s],” id. § 4B1.2(b). The district court denied his motion. II. STANDARD OF REVIEW “We review [de novo] constitutional sentencing issues.... ” United States v. Steed, 548 F.3d 961, 978 (11th Cir.2008). III. DISCUSSION The parties present two issues. First, Smith argues that the government violated his rights under the Fifth and Sixth Amendments because his prior convictions were not alleged in his indictment or specifically admitted by him. Second, Smith and Nunez argue that their prior convictions for Florida drug crimes do not qualify as “serious drug offense[s],” 18 U.S.C. § 924(e)(2)(A)(ii), and “controlled substance offense[s],” U.S.S.G. § 4B1.2(b). We address each argument in turn. A. The District Court Correctly Relied on Smith’s Prior Convictions. Smith argues that the application of the mandatory minimum sentence, 18 U.S.C. § 924(e), violated his Fifth and Sixth Amendment rights. Smith argues that his prior convictions cannot be used to in crease his maximum possible sentence or mandatory minimum sentence because his prior convictions were not alleged by indictment, U.S. Const. Amend. V, and he did not specifically admit that his prior convictions were serious drug offenses, U.S. Const. Amend. VI. Smith argues that the Supreme Court ruled in Alleyne v. United States that all facts that trigger mandatory minimum sentences—including the fact of a prior conviction—must be alleged in an indictment, submitted to a jury, and proved beyond a reasonable doubt. — U.S. —, 133 S.Ct. 2151, 2155, 186 L.Ed.2d 314 (2013). Smith’s arguments fail. “[N]either the Fifth Amendment nor the Sixth Amendment prevents] the district court from finding the fact of [Smithj’s prior convictions, or using them to designate him a[n Armed Career Criminal'].” United States v. Gibson, 434 F.3d 1234, 1246 (11th Cir.2006). Although it is ordinarily true that all'elements of a crime must be alleged by indictment and either proved beyond a reasonable doubt or admitted by a defendant, there is an exception for prior convictions. Almendarez-Torres v. United States, 523 U.S. 224, 247, 118 S.Ct. 1219, 1232-33, 140 L.Ed.2d 350 (1998). The Constitution does not require that “[t]he government" }, { "docid": "23388169", "title": "", "text": "taken together, fail to erase all doubts regarding the accuracy of the NCIC report at issue here. But the district court did not clearly err in crediting them. Together, these explanations sufficiently substantiated the information in the NCIC report to permit the court to conclude by a preponderance of the evidence that McDowell committed the 1971 assault. Indeed, given that the district court elicited facts rebutting McDowell’s objections to the NCIC report and corroborating the information contained in it, the district court’s ruling would seem to satisfy even the First Circuit’s requirement that the sentencing court make an “additional inquiry into the reliability” of an NCIC report before relying on it. Bryant, 571 F.3d at 155. We need not and do not hold that a contested NCIC report standing alone would suffice to establish the fact of a prior conviction. We hold only that the district court did not clearly err in finding that this report, in addition to the corroboration provided by the Government, established the fact of the 1971 conviction by a preponderance of the evidence. IV. McDowell also ascribes constitutional error to the proceedings below. He contends that in applying the preponderance-of-the-evidence standard to establish the fact of his prior conviction, the district court violated his Sixth Amendment right to have a jury find each element of his offense beyond a reasonable doubt. At oral argument, the Government conceded that the NCIC report would not suffice to prove the fact of McDowell’s 1971 conviction beyond a reasonable doubt. Normally, the Sixth Amendment requires any fact that raises the statutory maximum or mandatory minimum penalty for a crime to “be submitted to a jury, and proved beyond a reasonable doubt.” Apprendi v. New Jersey, 530 U.S. 466, 490, 120 S.Ct. 2348, 147 L.Ed.2d 435 (2000) (announcing this rule with respect to statutory máximums); see also Alleyne v. United States, — U.S. -, 133 S.Ct. 2151, 2163, 186 L.Ed.2d 314 (2013) (extending the rule to mandatory minimums). Adherence to the demanding reasonable-doubt standard “reflects] a profound judgment about the way in which law should be enforced and justice administered.”" }, { "docid": "1980510", "title": "", "text": "The district court empaneled two juries, one for Rolle and Wilchcombe. and the other for Beauplant, to avoid any potential prejudice that could result from evidence of Beauplant’s prior criminal trafficking. All three men were convicted on all charges. The district ■ court sentenced . Beauplant and Wilchcombe principally to 120 months’ imprisonment and Rolle to 135 months’ imprisonment. II. A. The defendants advance multiple arguments in urging us to conclude that the district court lacked jurisdiction over this case. We review de novo “a district court’s interpretation and application of statutory provisions that go to whether the court has subject matter jurisdiction” and review factual findings related to jurisdiction for clear error. United States v. Tinoco, 304 F.3d 1088, 1114 (11th Cir. 2002) (internal quotation marks omitted). 1. Wilchcombe and Rolle first argue that the MDLEA violates the Due Process Clause because it does not require proof of a nexus between the United States and a defendant. Because we have previously rejected this argument, United States v. Campbell, 743 F.3d 802, 810 (11th Cir. 2014), cert. denied, — U.S. -, 135 S.Ct. 704, 190 L.Ed.2d 438 (2014), they seek en banc review. We cannot reconsider this issue, nor do we support en banc review. The text of the MDLEA does not require a nexus between the defendants and the United States; it specifically provides that its prohibitions on drug trafficking are applicable “even though the act is committed outside the territorial jurisdiction of the United States.” 46 U.S.C. § 70503(b). The Constitution and principles of international law support our interpretation of the MDLEA, Campbell, 743 F.3d at 810, and Wilchcombe and Rolle make no convincing arguments to the contrary. Further, of the other circuits to have considered this question, all but one share our view. Compare United States v. Suerte, 291 F.3d 366, 369-72 (5th Cir. 2002) (stating that the due process does not require a nexus for the MDLEA to apply outside the territorial jurisdiction of the United States), and United States v. Cardales, 168 F.3d 548, 553 (1st Cir. 1999) (same), and United States v. Martinez-Hidalgo, 993" }, { "docid": "9460108", "title": "", "text": "566 F.3d 41 (1st Cir.2009) (citing Lipscomb, 539 F.3d at 40), holding that the sufficiency-standard for a Motion for Acquittal under Rule 29 required the district court to determine whether, viewing the evidence in the light most favorable to the government, a reasonable fact finder could have concluded that the defendant was guilty beyond a reasonable doubt. The Court, therefore, is not to discard compliance with the requirement of the standard of “guilty beyond a reasonable doubt.” However, a defendant challenging his conviction for insufficiency of the evidence faces an “uphill battle.” United States v. Hernández, 218 F.3d 58, 64 (1st Cir.2000). Nevertheless, “despite the prosecution-friendly overtones of the standard of review, appellate oversight of sufficiency challenges is not an empty ritual.” United States v. de la Cruz-Paulino, 61 F.3d 986, 999 n. 11 (1st Cir.1995). In the instant case, both defendants moved the Court to be acquitted albeit on different grounds. Defendant Martinez moved to be acquitted on two grounds, to wit: (a) lack of jurisdiction under the Maritime Drug Law Enforcement Act (“MDLEA”), and (b) insufficiency of the evidence as to the possession of the of controlled substances. Mr. Martinez further alleges that “[t]he government did not present sufficient facts to support the existence of the Conspiracy for which he was found guilty of.” See Docket No. 93, page 3. “Nor is there sufficient evidence that Mr. Martinez-Martinez ever engaged in the conduct required to prove that he actually committed the offenses for which he was convicted.” Id. Defendant Rosario, however, moved to be acquitted only on the ground of lack of jurisdiction as the “evidence is not sufficient to convict and to confer jurisdiction over the conspiracy to import controlled substances charge.” See Docket No. 94, page 11. Moreover, “[t]he evidence presented at trial showed that the interdiction events occurred far away from the coast of Cabo Rojo, actually more than 30 nautical miles away.” Id. The Government filed its opposition on September 23, 2013 rejecting the defendants’ arguments. See Docket No. 96. Generally, the Government alleges that the evidence presented at trial was sufficient to prove" } ]

[ { "docid": "22637866", "title": "", "text": "of the Board is made pursuant to § 10 (c) directing any person to cease an unfair labor practice and there is a petition forenforcement or review of the order by a court the Board’s “certification and the record of such investigation” is to be included in the transcript of the entire record required to be filed under § 10 (e) or (f), and the decree of the court enforcing, modifying or setting aside the order of the Board is to be made and entered upon the pleadings, testimony and proceedings set forth in the transcript. It is to be noted that § 9, which is complete in itself, makes no provision, in terms, for review of a certification by the Board and ¿uthorizes no use of the certification or of the record in a certification proceeding, except in the single case where there is a petition for enforcement or review of an order restraining an unfair labor practice as authorized by § 10 (c). In that event the record in the certification proceeding is included in the record brought up on review of the Board’s order restraining an unfair labor practice. It then becomes a part of the record upon which the decree of the reviewing court is to be based. All other provisions for review of any action of the Board are found in § 10 which as its heading indicates relates to the prevention of unfair labor practices. Nowhere in this section is there mention of investigations or certifications authorized and defined by § 9. Section 10 (a) authorizes the Board “to prevent any person from engaging in any unfair labor practice (listed in section 8) affecting commerce.” Section 10 (b) prescribes the procedure of the Board when any person is charged with engaging in, any unfair labor practice, and requires that the person so charged shall be served with a complaint and notice of hearing by the Board with opportunity to file an answer and be heard. Section 10 (c) directs the Board, if it is of opinion, as the result of the proceedings before it," } ]

[ { "docid": "17395018", "title": "", "text": "at the prohibition of direct review of certification orders; indirect review at some point was clearly envisioned. Taken in this context, comments such as “Section 9(d) makes it absolutely clear that there shall be no right to court review anterior to the holding of an election,” S.Rep. No. 573, 74th Cong., 1st Sess., 14 (1935) must be viewed as merely restating the intention of Congress to deny direct review of certification orders. It does not follow that indirect review of representation proceedings prior to an election is prohibited. N.L.R.B. v. Falk Corp., 308 U.S. 453, 60 S.Ct. 307, 84 L.Ed. 396 (1940), is not to the contrary. In that case, the Board, in a consolidated proceeding, (1) had found that the employer had committed an unfair labor practice by fostering and dominating a company union and (2) had directed an election to be held without the participation of the company union. The court of appeals granted enforcement of the Board’s order to cease dominating and to disestablish the company union. However, on its own volition, it ordered that the employees in a future election should be free to choose the company union. The Supreme Court primarily was concerned with only the latter holding. The Court held that section 9(d) did not authorize “such anticipatory judicial control of election methods.” Inasmuch as none of the Board’s orders was “ ‘based in whole or in part upon facts certified’ as the result of an election,” N.L.R.B. v. Falk Corp., 308 U.S. at 459, 60 S.Ct. at 311, the court of appeals was powerless to modify the election proceeding. The Court limited the power of the court of appeals under section 9(d) to review of Board orders based on an actual certification of a bargaining representative. The proposed election here has not even been held and consequently no certification of a proper bargaining agent has been made by the Board. Until that election is held, there can be no certification of a bargaining representative and no Board order — based on a certification, has been or can be made, so as to invoke" }, { "docid": "17395019", "title": "", "text": "it ordered that the employees in a future election should be free to choose the company union. The Supreme Court primarily was concerned with only the latter holding. The Court held that section 9(d) did not authorize “such anticipatory judicial control of election methods.” Inasmuch as none of the Board’s orders was “ ‘based in whole or in part upon facts certified’ as the result of an election,” N.L.R.B. v. Falk Corp., 308 U.S. at 459, 60 S.Ct. at 311, the court of appeals was powerless to modify the election proceeding. The Court limited the power of the court of appeals under section 9(d) to review of Board orders based on an actual certification of a bargaining representative. The proposed election here has not even been held and consequently no certification of a proper bargaining agent has been made by the Board. Until that election is held, there can be no certification of a bargaining representative and no Board order — based on a certification, has been or can be made, so as to invoke the court’s powers under 9(d). N.L.R.B. v. Falk Corp., 308 U.S. at 459, 60 S.Ct. at 311. Under the Court’s reasoning (contrary to the owner-operators contention at oral argument) “facts certified” are limited to those actually certified after an election, viz., the certification of the bargaining unit, bargaining representative, etc., and do not include any facts which the Board may “certify” as part of the record. The Court spoke unequivocally when it said: There can be no court review under 9(d) until the Board issues an order and requires the employer to do something predicated upon the result of an election. Since this employer has not been ordered by the Board to do anything predicated upon the results of an election the court had no authority to act under 9(d). Id. Although section 9(d) provides no authority to consider the owner-operator issue, it also does not preclude reaching the issue in the context of the independent unfair labor practice under section 10(f). The basis for this conclusion resides in Falk. The pivotal finding there was" }, { "docid": "19315189", "title": "", "text": "only of power to “decertify” UE but also of power to conduct an investigation of the petitions for “decertification,” and, consequently, that the Board is acting beyond its jurisdiction in holding the hearing noticed for February 16th, and may be restrained by the district court. Section 10 of the National Labor Relations Act is the only section which confers jurisdiction on the courts. Section 10(e) gives the Board power to apply to the courts for enforcement of its orders; and section 10(f) is a similar section giving the privilege of judicial review to “any person aggrieved by a final order of the Board.” But both these sections are confined to orders with respect to unfair labor .practices. The Act'nowhere authorizes a direct review of a representation order, or of a “decertification” order under the Act as amended. It does, however, provide an indirect review in section 9(d) which directs that when an order under section 10(c) prohibiting an unfair labor practice has been based in part upon a certification following an investigation pursuant to section 9(c) and is to be enforced or reviewed under section 10(e) or- 10(f) the record of the certification and investigation shall be included in the transcript. A majority of the court believes that Congress has dealt in section 9(d) with reviews of certification and “decertification,” and has provided therein the only relief it means to grant on that subject. A.F. of L. v. National Labor Relations Board, 308 U.S. 401, 411, 60 S.Ct. 300, 84 L.Ed. 347; National Labor Relations Board v. Falk Corp., 308 U.S. 453, 459, 60 S.Ct. 307, 84 L.Ed. 396; E. I. Dupont de Nemours & Co. v. Boland, 2 Cir., 85 F.2d 12, 15. Except where the Constitution requires it, judicial review of administrative action may be granted or withheld as Congress chooses. Estep v. United States, 327 U.S. 114, 120, 66 S.Ct. 423, 90 L.Ed. 567; Switchmen’s Union v. Mediation Board, 320 U.S. 297, 301, 64 S.Ct. 95, 88 L.Ed. 61. That there is any constitutional necessity for granting further relief than section 9(d) provides the plaintiffs do not" }, { "docid": "16880108", "title": "", "text": "right therein granted to plaintiff to represent the above mentioned employees of defendant; also that such controversy exists only between plaintiff and defendant; and hence-that the same does not constitute a labor dispute within the meaning of the Norris-La Guardia Act. Finally, plaintiff urges that to deny to it the injunctive relief here sought and thus to permit defendant to breach the contract entered into between them would leave the former without any remedy and would cause it irreparable injury. Accordingly,, plaintiff insists that under well settled principles of equity it is entitled to such injunctive relief. During the rather extended oral argument, counsel representing the respective parties cited and quoted from a rather considerable number of decisions. We note with satisfaction that counsel were exceedingly industrious and painstaking in their research preparatory to such argument. Counsel for plaintiff and counsel for defendant rely principally upon the following cases: A. F. of L. v. National Labor Relations Board, 308 U.S. 401, 60 S.Ct. 76, 84 L.Ed. 448; National Labor Relations Board v. International Brotherhood, 308 U.S. 413, 60 S.Ct. 306, 84 L.Ed. 354; National Labor Relations Board v. Falk Corp., 308 U.S. 453, 60 S.Ct. 307, 84 L.Ed. 396; United Employees Ass’n v. National L. R. Bd., 3 Cir., 96 F.2d 875; Klein v. Herrick, D.C., 41 F.Supp. 417; A. F. of L. v. Madden, D. C., 33 F.Supp. 943, and Oberman & Co. v. United Garment Workers, D. C., 21 F.Supp. 20. It will be observed that, with the exception of the last mentioned decision, each of the cases above cited was one in which the National Labor Relations Board, or some official thereof, was a party. Indeed, all but the last three were cases in which review proceedings had been prosecuted under the Act before a Circuit Court of Appeals. In A. F. of L. v. National Labor Relations Board, 308 U.S. 401, at pages 404, 405, 60 S.Ct. 300, at page 302, 84 L.Ed. 347, the Supreme Court said: “The single issue which we are now called on to decide is whether the certification by the Board" }, { "docid": "13642832", "title": "", "text": "Section 8(a) (5), 29 U.S.C.A. § 158(a) (5). On December 16, 1964, the Regional Director dismissed petitioner’s election petition. The dismissal was upheld by the Board on January 28, 1965. Since its creation it has been the practice of the National Labor Relations Board not to conduct a representation election when the employer is also charged with an unfair labor practice which might affect the outcome, unless the Union waives any claim to rely upon the employer’s conduct to invalidate the election. See United States Coal & Coke Co., 3 N.L.R.B. 398. This practice and the authority of the Board over the timing of elections has been recognized by the courts in several cases. Surprenant Mfg. Co. v. Alpert, 318 F.2d 396 (1st Cir.); Pacemaker Corp. v. NLRB, 260 F.2d 880 (7th Cir.); NLRB v. Trimfit of California, Inc., 211 F.2d 206 (9th Cir.). The record indicates that the dismissal in the instant case was predicated on the Board's policy. This practice is well within the Board’s power over its administrative and procedural practices. It is well settled that Board orders in certification proceedings under Section 9(c) are not directly reviewable in the courts. Boire v. Greyhound Corp., 376 U.S. 473, 84 S.Ct. 894, 11 L.Ed.2d 849; American Federation of Labor v. National Labor Relations Board, 308 U.S. 401, 60 S.Ct. 300, 84 L.Ed. 347. This general rule is subject to limited exceptions not applicable in the case at bar, and the delays resulting are apparent. Boire v. Greyhound Corp., supra. Instead such orders are normally reviewable only as an incident to a proceeding brought under Section 10(e) or 10(f), 29 U.S.C.A. § 160(e), (f), to enforce a cease and desist order or to review a “final order” of the board in an unfair labor practice proceeding. Boire v. Greyhound Corp., supra; NLRB v. Dewey Portland Cement Co., 336 F.2d 117 (10th Cir.). We expressly held in NLRB v. Ideal Laundry & Dry Cleaning Co., 330 F.2d 712 (10th Cir.), that the proceedings to determine the appropriate bargaining unit under Section 9(c) is “purely administrative and does not contemplate a" }, { "docid": "17395020", "title": "", "text": "the court’s powers under 9(d). N.L.R.B. v. Falk Corp., 308 U.S. at 459, 60 S.Ct. at 311. Under the Court’s reasoning (contrary to the owner-operators contention at oral argument) “facts certified” are limited to those actually certified after an election, viz., the certification of the bargaining unit, bargaining representative, etc., and do not include any facts which the Board may “certify” as part of the record. The Court spoke unequivocally when it said: There can be no court review under 9(d) until the Board issues an order and requires the employer to do something predicated upon the result of an election. Since this employer has not been ordered by the Board to do anything predicated upon the results of an election the court had no authority to act under 9(d). Id. Although section 9(d) provides no authority to consider the owner-operator issue, it also does not preclude reaching the issue in the context of the independent unfair labor practice under section 10(f). The basis for this conclusion resides in Falk. The pivotal finding there was that the employer fostered and dominated the company union. This finding provided the basis for the Board’s unfair labor practice holding, which holding was reviewed by the court of appeals in the course of deciding that the Board’s order to cease dominating' and to disestablish the company union should be enforced. The Supreme Court recognized that the court of appeals had jurisdiction to review the Board’s unfair labor practice holding and in the course of that review, to determine whether the Board had correctly found that the employer fostered and dominated the company union. Had it not so recognized jurisdiction it would have pointed out that the circuit court’s enforcement of the unfair labor practice order was a brutum fulmen. No such indication was given. Moreover, nothing in Falk indicates that the circuit court’s power was limited to enforcement only. Here, the pivotal finding by the Board was that owner-operators are employees. This finding was the basis for conducting an election in which the bargaining unit included owner-operators. It also was the basis for the" }, { "docid": "1429134", "title": "", "text": "The single question presented for determination is whether the action of the Board in declining to issue a complaint and go further with the proceeding, and the action of the General Counsel in approving the action of the Board, is subject to review. Except as authorized by statute, a court of appeals does not have jurisdiction to review actions of the Board. American Federation of Labor v. National Labor Relations Board, 308 U.S. 401, 60 S.Ct. 300, 84 L.Ed. 347. Section 10 of the Act is the only provision vesting in a court of appeals jurisdiction to review actions of the Board. Under section 10(e) the court has jurisdiction to entertain a petition of the Board for the enforcement of its order requiring the person charged to cease and desist from the unfair labor practice. Section 10(f) provides that any person aggrieved “by a final order of the Board granting or denying in whole or in part the relief' sought may obtain a review of such order” in the particular court of appeals therein specified. The phrase “final order of the Board” as used in the statute refers solely and exclusively to an order of the Board either dismissing a complaint in whole or in part or directing a remedy relating to an unfair labor practice entered under section 10(b) and (c). General Drivers, Chauffeurs, and Helpers, etc., v. National Labor Relations Board, 10 Cir., 179 F.2d 492. Section 3(d) of the Act 29 U.S.C.A. § 153(d), vests in the General Counsel for the Board final authority, on behalf of the Board, in respect to the investigation of charges and the issuance of complaints under section 10; hut no specific provision is made for judicial review of the action of the General Counsel respecting such matters. Lincourt v. National Labor Relations Board, 1 Cir., 170 F.2d 306; General Drivers, Chauffeurs, and Helpers, etc. v. National Labor Relations Board, supra. So far as the reviewability of the action of the General Counsel is concerned, the amendment did not make any change in the language of section 10(b) or 10(f). General Drivers," }, { "docid": "6424071", "title": "", "text": "a substantial basis for the finding of the Board that Stanolind dominated \"and interfered with the formation of the Association and contributed to its support and engaged in surveillance of labor organization activities in violation.of § 8(1) and (2) of the Act. The order as to' Stanolind will be enforced. 'The costs in the Stanolind case will be assessed against Stanolind. On Petition for Rehearing. PER CURIAM. No order having been made under Sectoin 9(d) of the National Labor Relations Act, 29 U.S.C.A. § 159(d), and no order having been made based in whole or in part upon facts certified, as a result of an investigation made by the Board pursuant to Section 9(c) of the Act, this court is without jurisdiction to review the propriety of the Board’s designation of the appropriate bargaining unit in. connection with its direction for an election for bargaining representatives to be held at an unspecified future date. National Labor Relations Board v. Falk Corporation, 308 U.S. 453, 60 S.Ct. 307, 84 L.Ed. 396; American Federation of Labor v. National Labor Relations Board, 308 U.S. 401, 60 S.Ct. 300, 84 L.Ed. 347; National Labor Relations Board v. International Brotherhood of Electrical Workers, 308 U.S. 413, 60 S.Ct. 306, 84 L.Ed. 354. The other grounds of the\" petition for rehearing were fully disposed of in our prior opinion. The petition for rehearing is denied. Hereinafter called the Board. Hereinafter called Standard. Hereinafter called Stanolind. Hereinafter called the Standard Association. Hereinafter called the Stanolind Association. Hereinafter called the Act. The petition to enforce was filed in this court on August 23, 1940. Hearing in this court was delayed due to delay in filing designations of the portions of the record to be printed, and due to postponement of the printing of the record at the request of the parties, pending negotiations for settlement. As a result, the record was not printed until June 3,1941. Hereinafter called the Plan. Hereinafter called the Joint Committee. The Plan set up a procedure for adjusting employees’ grievances. It provided first, for a conference in person or through the regularly elected" }, { "docid": "22688886", "title": "", "text": "of its delegated powers and contrary to a specific prohibition in the Act.’ * * * The courts have generally interpreted Kyne as sanctioning the use of injunctive powers only in a very narrow situation in which there is a ‘plain’ violation of an unambiguous and mandatory provision of the statute.” Boire v. Miami Herald Pub. Co., 5 Cir., 1965, 343 F.2d 17, 20-21. The Supreme Court is likewise clear. “[I]n the normal course of events Board orders in certification proceedings under § 9(c) are not directly reviewable in the courts. This Court held as long ago as American Federation of Labor v. [National] Labor [Relations] Board, 308 U.S. 401 [60 S.Ct. 300, 84 L.Ed. 347] that the ‘final order [s]’ made reviewable by §§ 10(e) and (f) in the Courts of Appeals do not include Board decisions in certification proceedings. Such decisions, rather, are normally reviewable only where the dispute concerning the correctness of the certification eventuates in a finding by the Board that an unfair labor practice has been committed as, for example, where an employer refuses to bargain with a certified representative on the ground that the election was held in an inappropriate bargaining unit. In such a case, § 9(d) of the Act makes full provision for judicial review of the underlying certification order by providing that ‘such certification and the record of such investigation shall be included in the transcript of the entire record required to be filed in the Court of Appeals.” Boire v. Greyhound Corp., 1964, 376 U.S. 473, 477, 84 S.Ct. 894, 896, 11 L.Ed.2d 849, 852-853. The District Court erroneously relied on Wyman-Gordon Co. v. NLRB, 1 Cir., 1968, 397 F.2d 494, cert. granted, 393 U.S. 932, 89 S.Ct. 301, 21 L.Ed.2d 268, since this Court later specifically approved the Excelsior rule in Howell Refining Co. v. NLRB, 5 Cir., 1968, 400 F.2d 213 [August 12, 1968]. Judge Gewin said this for the Court: “We find the Rule to be a valid exercise of the Board’s power to insure employees a fair and free choice in the selection of their representative.”" }, { "docid": "21199110", "title": "", "text": "The Board’s Regional Director and General Counsel refused to issue a complaint on these charges. At a subsequent hearing on the decertification petitions, the hearing officer refused to admit evidence offered by the Union to prove that the employer had instigated the petitions, and refused to incorporate in the record the Regional Director’s reports of his investigation of the unfair labor practice charges. The Regional Director upheld the hearing officer’s rulings, on the ground that “unfair labor practice allegations are not properly liti-gable in a representation proceeding,” found that a question of representation existed, and directed an election. The Union argues that the exclusion of evidence deprived it of due process of law and violated the requirement of § 9(c) (1) of the Act that the Board “shall provide for an appropriate hearing” and shall direct an election “[i]f the Board finds upon the record of such hearing that * * * a question of representation exists * * Judicial review of representation proceedings is very limited. They cannot be reviewed by courts of appeals under § 10(f) of the Act, because direction of an election or certification of a bargaining representative is not “a final order of the Board.” National Labor Relations Board v. Internat’l Brotherhood of Electrical Workers, 308 U.S. 413, 60 S.Ct. 306, 84 L.Ed. 354 (1940); American Federation of Labor v. National Labor Relations Board, 308 U.S. 401, 60 S. Ct. 300, 84 L.Ed. 347 (1940). Ordinarily representation proceedings can be reviewed only after the Board has based an order in an unfair labor practice proceeding on facts found in the representation proceeding. Two exceptions have been established, which allow District Court review under the general terms of 28 U.S.C. § 1337 (1958). The Union relies on both. (1) A District Court has jurisdiction to correct a violation by the Board of a clear, specific, and mandatory provision of the Act. Leedom v. Kyne, 358 U.S. 184, 79 S.Ct. 180, 3 L.Ed.2d 210 (1958). Section 9(c) (1) of the Act makes it mandatory that the Board hold an “appropriate hearing” before it certifies or decertifies a" }, { "docid": "23401189", "title": "", "text": "PER CURIAM. This petition seeks review of a determination by the General Counsel of the National Labor Relations Board not to direct the issuance of a complaint, in the name of the Board, charging unfair labor practices. Our only possible basis of jurisdiction is § 10(f) of the National Labor Relations Act, as amended, 61 Stat. 148, 29 U.S.C.A. § 160(f), which provides that any person aggrieved “by a final order of the Board granting or denying in whole or in part the relief sought may obtain a review of such order” in the appropriate circuit court of appeals. We agree with the Board that the phrase “a final order of the Board” as used in this subsection “refers solely to an order of the Board either dismissing a complaint in whole or in part or directing a remedy for the unfair labor practices found, that is to an order entered as the culmination of the procedure described in Section 10(b) and (c) of the Act, as amended.” See American Federation of Labor v. N.L.R.B., 1940, 308 U.S. 401, 60 S.Ct. 300, 84 L.Ed. 347. The issuance of a complaint under § 10 of the Act is a matter of administrative discretion. Under the National Labor Relations Act in its original form, 49 Stat. 449, it was clear that the refusal of the Board to issue a complaint was not reviewable in the circuit courts of appeals. See Jacobsen v. N.L.R.B., 3 Cir., 1941, 120 F.2d 96, 100. The Labor Management Relations Act of 1947 has effected no change in the jurisdictional language of § 10 now relevant, though in other particulars it made substantial amendments of the National Labor Relations Act. Wilke v. N.L.R.B., 4 Cir., July 7, 1948; No. 5754. It is to be noted that the Labqr Management Relations Act of 1947 introduced into § 3 of the National Labor Relations Act a new subsection (d), 29 U.S.C.A. § 153(d), which took away from the Board the administrative power to issue complaints under § 10. As the Act now reads, the General Counsel of the Board “shall" }, { "docid": "21497964", "title": "", "text": "August 22, by telegraphic order, vacated the July 25 election without holding a hearing. A hearing was subsequently held, however, and the Union submitted its case. As will appear, we hold that this subsequent hearing was sufficient to remedy any defect which may have existed in the Board’s prior procedure. . 61 Stat. 143, 29 U.S.C. § 159(b). . The reason behind the Court’s holding is clear. It is established that a Board order in certification proceedings, pursuant to Section 9, is not a “final order” and therefore does not qualify for judicial review under Section 10. A. F. L. v. N. L. R. B., 308 U.S. 401, 60 S.Ct. 300, 84 L.Ed. 347 (1940). The only means by which a certification can be judicially reviewed under Section 10 is in a subsequent unfair labor practice proceeding. See May Dep’t Stores Co. v. N. L. R. B., 326 U.S. 376, 66 S.Ct. 203, 90 L.Ed. 145 (1945). While this procedure is available to an aggrieved employer (by refusing to bargain with a certified representative) and, to a lesser extent, to the victorious union, it is practically unavailable to an unsuccessful union. See Cox, The Major Labor Decisions of the Supreme Court, October Term 1958, A.B.A. Sect. of Labor Relations Law, 1959, reprinted in Gellhorn & Byse, Administrative Law: Cases and Comments 441 (4th ed. 1960); The Supreme Court, 1958 Term, 73 Harv.L.Rev. 84, 217 (1959). Indeed, this Court has recognized that the Leedom v. Kyne remedy was not devised for the benefit of an employer. Atlas Life Ins. Co. v. Leedom, 109 U.S.App.D.C. 97, 284 F.2d 231 (1960). See Cox v. McCulloch, 114 U.S.App.D.C. 302, 315 F.2d 48, 50 (1963): “Since an unsuccessful union in a certification proceeding before the Board has no adequate remedy by review, and it appearing that certification of [this] organization as bargaining agent * * * would be in direct contravention of the Act, the jurisdiction of the District Court in a Leedom v. Kyne type of action should be determined.” Compare Wolf Corp. v. S. E. C., 115 U.S.App.D.C. 75, 317 F.2d 139 (1968)." }, { "docid": "13642833", "title": "", "text": "is well settled that Board orders in certification proceedings under Section 9(c) are not directly reviewable in the courts. Boire v. Greyhound Corp., 376 U.S. 473, 84 S.Ct. 894, 11 L.Ed.2d 849; American Federation of Labor v. National Labor Relations Board, 308 U.S. 401, 60 S.Ct. 300, 84 L.Ed. 347. This general rule is subject to limited exceptions not applicable in the case at bar, and the delays resulting are apparent. Boire v. Greyhound Corp., supra. Instead such orders are normally reviewable only as an incident to a proceeding brought under Section 10(e) or 10(f), 29 U.S.C.A. § 160(e), (f), to enforce a cease and desist order or to review a “final order” of the board in an unfair labor practice proceeding. Boire v. Greyhound Corp., supra; NLRB v. Dewey Portland Cement Co., 336 F.2d 117 (10th Cir.). We expressly held in NLRB v. Ideal Laundry & Dry Cleaning Co., 330 F.2d 712 (10th Cir.), that the proceedings to determine the appropriate bargaining unit under Section 9(c) is “purely administrative and does not contemplate a final determination of the rights of the parties,” and that the Board has “wide discretion” in establishing procedure necessary to the choice of bargaining representatives of the employees. The general procedure and intention of the Act is fully treated in the cited case. In the instant case, should the Board find that the allegations of the unfair labor practice complaint have been sustained, the remedy is an order for the petitioner to bargain with the Union. In such circumstances, the petitioner may obtain review in the Court of Appeals under Section 10(f) of the Act. NLRB v. Dewey Portland Cement Co., supra; NLRB v. Ideal Laundry & Dry Cleaning Co., supra. Under proper circumstances, Section 9(d) of the Act makes full provision for judicial review of the underlying certification order by providing that “such cer - tification and the record of such investigation shall be included in the transcript of the entire record required to be filed” in the Court of Appeals. 29 U.S.C.A. § 159(d). The Board’s dismissal is an interlocutory order on procedural" }, { "docid": "21497963", "title": "", "text": "but for differing reasons. The Herald maintained that, since the original denial of review was invalid, the election itself must be considered as never validly having been directed. The Union, for reasons which will become apparent, urged the correctness of the denial of review, and, hence, the validity of the election. . 73 Stat. 542, 29 U.S.C. § 159(c) (3). (Emphasis added.) The basis for the Herald’s challenge to the original direction of election was the alleged failure on the part of the Board to conform with this provision by adopting regulations for the voting of economic strikers. The Board’s policy is to rule on such issues in its decisional process, rather than to adopt inclusive regulations to meet the complexity of a problem having innumerable factual variations. . “The district courts shall have original jurisdiction of any civil action or proceeding arising under any Act of Congress regulating commerce or protecting trade and commerce against restraints and monopolies.” . The Union alleges that it was denied due process of law when the Board, on August 22, by telegraphic order, vacated the July 25 election without holding a hearing. A hearing was subsequently held, however, and the Union submitted its case. As will appear, we hold that this subsequent hearing was sufficient to remedy any defect which may have existed in the Board’s prior procedure. . 61 Stat. 143, 29 U.S.C. § 159(b). . The reason behind the Court’s holding is clear. It is established that a Board order in certification proceedings, pursuant to Section 9, is not a “final order” and therefore does not qualify for judicial review under Section 10. A. F. L. v. N. L. R. B., 308 U.S. 401, 60 S.Ct. 300, 84 L.Ed. 347 (1940). The only means by which a certification can be judicially reviewed under Section 10 is in a subsequent unfair labor practice proceeding. See May Dep’t Stores Co. v. N. L. R. B., 326 U.S. 376, 66 S.Ct. 203, 90 L.Ed. 145 (1945). While this procedure is available to an aggrieved employer (by refusing to bargain with a certified representative) and," }, { "docid": "14142246", "title": "", "text": "or to have any effect.” The Works Council and the Employees’ Council are dead, with seemingly not even any illusory prospects of a resurrection. Certainly no useful purpose would be served here by “whipping a corpse”. The petition of the A. C. E. for a review of the Direction of Election, which the Board had issued in a proceeding under Section 9(c) of the Act, must be dismissed under the authorities of National Labor Relations Board v. Falk Corp., supra, American Federation of Labor v. National Labor Relations Board, 1940, 308 U.S. 401, 60 S.Ct. 300, 84 L.Ed. 347, and National Labor Relations Board v. International Brotherhood of Electrical Workers, 1940, 308 U.S. 413, 60 S.Ct. 306, 84 L.Ed. 354. It is true, as counsel for the A. C. E. points out in his reply brief, that these cases are in a sense distinguishable, inasmuch as “the instant proceeding is one where the entire record, including both the complaint case and the representation case, has been certified by the Board to the Court.” Nevertheless, we believe that our decision is controlled by Mr. Justice Black’s statement that a Circuit Court of Appeals “has no right to review a proposed election and in effect to supervise the manner in which it shall thereafter be conducted.” National Labor Relations Board v. Falk Corp., supra, 308 U.S. at page 459, 60 S.Ct. at page 311, 84 L.Ed. 396. Under our understanding of the powers granted to this Court pursuant to Section 10(f) of the Act, we may exercise our statutory authority to review an order for election if, but only if, the Board, subsequent to the election, has made a final order predicated upon the results of such election. See Sen. Rep. 573, Committee on Education and Labor, 74th Cong., 1st Sess., p. 14, quoted in American Federation of Labor v. National Labor Relations Board, supra, 308 U.S. at page 410 n. 3, 60 S.Ct. at page 304, 84 L.Ed. 347. In view of our decision herein, the Board will doubtless revise its ruling as to the organizations to be voted on in" }, { "docid": "23585439", "title": "", "text": "involving the company’s pressroom employees until he amends his Decision and Direction of Election to prevent economic strikers not entitled to reinstatement from voting in such an election. The district court concluded that it had jurisdiction of the subject matter, that the complaint stated a “prima facie cause of action,” and that plaintiff company was entitled to an adjudication whether section 9(c) (3) required the issuance of regulations as a condition precedent to allowing economic strikers who have been permanently replaced to vote in a representation election. Accordingly, the court entered a preliminary injunction against the counting of the ballots, and this appeal followed. Consequently, we are squarely faced with the question whether under these facts the district court properly exercised its equity powers in enjoining the election proceedings despite the strong congressional policy not to interfere in such matters. Jurisdiction over the subject matter of this complaint, at least for the limited purpose of determining whether relief may be granted, is furnished by 28 U.S.C. § 1337, since this is a civil action arising under an act regulating commerce. The question whether the complaint asserts a claim upon which equitable relief may be properly granted, however, is, affected by the general congressional policy to afford “review” of matters arising under section 9 of the Act only after the Board has ordered the complaining party to take some affirmative action- based upon the certification. In accord with this policy, the Supreme Court has held that a Board order certifying a particular labor organization as the exclusive bargaining representative for the employees in the unit is not a “final” order which may be reviewed by courts of appeals under section 10(f) of the Act. American Federation of Labor v. NLRB, 308 U.S. 401, 60 5. Ct. 300, 84 L.Ed. 347 (1940). Consequently, certification orders are normally reviewable only when the Board petitions a court of appeals for enforcement of an order to bargain entered pursuant to section 8(a) (5). The reason for severely circumscribing court interference in representation matters is to avoid dilatory tactics which would postpone the commencement of bargaining" }, { "docid": "16880109", "title": "", "text": "U.S. 413, 60 S.Ct. 306, 84 L.Ed. 354; National Labor Relations Board v. Falk Corp., 308 U.S. 453, 60 S.Ct. 307, 84 L.Ed. 396; United Employees Ass’n v. National L. R. Bd., 3 Cir., 96 F.2d 875; Klein v. Herrick, D.C., 41 F.Supp. 417; A. F. of L. v. Madden, D. C., 33 F.Supp. 943, and Oberman & Co. v. United Garment Workers, D. C., 21 F.Supp. 20. It will be observed that, with the exception of the last mentioned decision, each of the cases above cited was one in which the National Labor Relations Board, or some official thereof, was a party. Indeed, all but the last three were cases in which review proceedings had been prosecuted under the Act before a Circuit Court of Appeals. In A. F. of L. v. National Labor Relations Board, 308 U.S. 401, at pages 404, 405, 60 S.Ct. 300, at page 302, 84 L.Ed. 347, the Supreme Court said: “The single issue which we are now called on to decide is whether the certification by the Board is an ‘order’ which, by related provisions of the statute, is made reviewable upon petition to the Court of Appeals for the District or in an appropriate case to a circuit court of appeals. The question is distinct from another much argued at the Bar, whether petitioners are precluded by the provisions of the Wagner Act from maintaining an independent suit in a district court to set aside the Board’s action because contrary to the statute, and because it inflicts on petitioners an actionable injury otherwise irreparable.” Again, at page 412, of 308 U. S., at page 305 of 60 S.Ct., 84 L.Ed. 347, the Court continued: “The Board argues that the provisions of the Wagner Act, particularly § 9 (d), have foreclosed review of its challenged action by independent suit in the district court, such as was allowed under other acts providing for a limited court review in Shields v. Utah Idaho Central R. Co., 305 U.S. 177, 59 S.Ct. 160, 83 L.Ed. 111, and in Utah Fuel Co. v. National Bituminous Coal Comm.," }, { "docid": "19315190", "title": "", "text": "9(c) and is to be enforced or reviewed under section 10(e) or- 10(f) the record of the certification and investigation shall be included in the transcript. A majority of the court believes that Congress has dealt in section 9(d) with reviews of certification and “decertification,” and has provided therein the only relief it means to grant on that subject. A.F. of L. v. National Labor Relations Board, 308 U.S. 401, 411, 60 S.Ct. 300, 84 L.Ed. 347; National Labor Relations Board v. Falk Corp., 308 U.S. 453, 459, 60 S.Ct. 307, 84 L.Ed. 396; E. I. Dupont de Nemours & Co. v. Boland, 2 Cir., 85 F.2d 12, 15. Except where the Constitution requires it, judicial review of administrative action may be granted or withheld as Congress chooses. Estep v. United States, 327 U.S. 114, 120, 66 S.Ct. 423, 90 L.Ed. 567; Switchmen’s Union v. Mediation Board, 320 U.S. 297, 301, 64 S.Ct. 95, 88 L.Ed. 61. That there is any constitutional necessity for granting further relief than section 9(d) provides the plaintiffs do not suggest. They contend, however, that the National Labor Relations Act has not deprived the district courts of their general equity jurisdiction under section 24 of the Judicial Code, 28 U.S.C.A. § 41, and that the Board may be enjoined from acting in a matter beyond its jurisdiction if a proper case for equitable relief is presented. They rely primarily upon Klein v. Herrick, D.C. S.D.N.Y., 41 F.Supp. 417 where Judge Rifkind held that the court had jurisdiction to enjoin the carrying out of an order directing an election, but dismissed the complaint on the ground that the suit was premature and the complaint failed to allege that irreparable damage had resulted or would result from the action sought to be enjoined. Judge Frank agrees with this view. If it be assumed that jurisdiction of the subject matter exists in the case at bar for the reasons stated by Judge Rifkind in Klein v. Herrick, supra, denial of a preliminary injunction and dismissal of the complaint were nevertheless correct. In the first place the suit is" }, { "docid": "23115260", "title": "", "text": "American Federation of Labor v. National Labor Board, 60 S.Ct. 300, 84 L.Ed. -, and National Labor Relations Board v. International Brotherhood of Electrical Workers, 60 S.Ct. 306, 84 L.Ed. -, denied jurisdiction in the Circuit Courts of Appeal to review such certificates before an order under Section 10, 29 U.S.C.A. § 160, is made against an employer. But Section 9(d) requires that the record touching the certification shall be sent to the court when enforcement or review is sought of an order under Sections 8 and 10 which is based in whole or in part upon the facts certified. This provision, though indicating the certificate is not to be reviewed before an order under Sections 8 and 10 is presented for enforcement or review, clearly means that when an order is presented the record on which the certificate was based may be looked into to determine the lawfulness of the certificate. There can be no other reason for sending up such a record. On reviewing it, we should regard the Board’s determination of facts as final, as in reviewing the order based on Sections 8 and 10; and of course in matters which are discretionary, the Board’s acts within the limits of law. are final. Only where the law has been ignored or violated' would the court nullify the certificate of a bargaining representative. If the affirmative act of a majority of all the employees in a unit fixed by the Board is always necessary to designate a bargaining representative for the unit under the above quoted language of Section 9, the certificates in this record would be unlawful, for in each case the certificate rests on the affirmative act of less than a majority. If a representative rests his claim on separate private authorizations, he would have to obtain a majority of all to be “designated or selected” by such a mode. But the statute, Section 9 (c), expressly provides for official action by the Board, and for the “taking by it of a secret ballot” as a means of ascertaining the wish of the unit. There is" }, { "docid": "13340641", "title": "", "text": "judges coming to no decision after many rounds. I. Plaintiffs allege that federal jurisdiction over the subject matter of this complaint is furnished by 28 U.S.C. § 1337, as applied to labor disputes by the United States Supreme Court in Leedom v. Kyne, 1958, 358 U.S. 184, 79 S.Ct. 180, 3 L.Ed.2d 210, and by this Court in Templeton v. Dixie Color Printing Co., 5 Cir. 1971, 444 F.2d 1064, and Surratt v. N.L.R.B., 5 Cir. 1972, 463 F.2d 378. We believe that the carefully circumscribed jurisdiction asserted in those cases is very far from reaching this case and that the district court should have dismissed plaintiffs’ action for lack of jurisdiction over the subject matter. Generally, NLRB decisions in representation cases are not directly reviewable by the federal courts. Congress has provided in section 10(f) of the National Labor Relations Act (the Act) that only a “final order” of the Board is subject to review by a court of appeals, and the United States Supreme Court has determined that a Board order in a certification proceeding is not such an order. American Federation of Labor v. N.L.R.B., 1940, 308 U.S. 401, 60 S.Ct. 300, 84 L.Ed. 347. Consequently, orders, concerning representation matters are reviewable only as they are drawn into question by a petition for enforcement or review of a Board order made under section 10(c) of the Act to restrain an unfair labor practice. 29 U.S.C. §§ 159(e) and (f); Magnesium Casting Co. v. N.L.R.B., 1971, 401 U.S. 137, 91 S.Ct. 599, 27 L.Ed.2d 735; Boire v. Greyhound Corp., 1964, 376 U.S. 473, 84 S.Ct. 894, 11 L.Ed.2d 849. Nowhere in the statutory scheme does Congress mention district court review of NLRB orders in representation cases, and there is a reason for that profound silence. The underlying purpose of the Act is to maintain industrial peace, Brooks v. N.L.R.B., 1954, 348 U.S. 96, 75 S.Ct. 176, 99 L.Ed. 125, and to allow employers and unions to rush into federal district court at will to prevent or nullify certification elections would encourage dilatory tactics by dissatisfied parties and lead" } ]

[ { "docid": "9837373", "title": "", "text": "of the payments were authorized by any company policy, and that Glucona had no obligation to make the payments. According to Shadoski, Ardisson told him that there were company policies of which Sha-doski was unaware. Shadoski further contends that Ardisson coerced payment of the funds through threats of discharge. Ardisson denies that he made any false representations. Thus, he testifies in his affidavit that some of the expenses were owed him pursuant to company policy, and that some payments were made in lieu of other compensation he should have received for his services. Ardisson also avers that the bill for installation of the alarm system was sent directly to Glucona and paid by Glucona without his knowledge. Under Code § 523(a)(2)(A), a debt will not be discharged if all the following elements are proven: (1) the debtor incurred the debt through representations that he knew to be false or made with such reckless disregard for the truth so as to constitute willful misrepresentation; (2) the debtor intended to deceive the creditor; and (3) the creditor justifiably relied on the debtor’s representations. Field v. Mans, 516 U.S. 59, 73-75, 116 S.Ct. 437, 446, 133 L.Ed.2d 351(1995); In re Sheridan, 57 F.3d 627, 635 (7th Cir.1995); Wol-ford v. Ward (In re Ward), 233 B.R. 810, 815 (Bankr.N.D.Ill.1999). To prevail on a complaint under § 523(a)(2)(A), the plaintiff must establish all three elements. Ward, id. There is some interrelationship between the first two elements, as proof of intent to deceive is measured by a debtor’s subjective intention at the time a representation was made. Bletnitsky v. Jairath (In re Jairath), 259 B.R. 308, 315 (Bankr. N.D.Ill.2001). Where a person has knowingly or recklessly made false representations which the person knew or should have known would induce another to act, the finder of fact may infer intent to deceive. Id. The remaining element under § 523(a)(2)(A) entails a finding as to causation, as the plaintiff must establish that it actually and reasonably relied on the debt- or’s misrepresentation. Id. As applied here, even assuming that Ardisson’s statements to Shadoski concerning company policy and his" } ]

[ { "docid": "4585098", "title": "", "text": "523(a)(2)(A) reads, in pertinent part: (a) discharge under Section 727 ... of this title does not discharge an individual debtor from any debt — (2) for money, property, services or an extension, renewal, refinancing of credit, to the extent obtained by — (A) false pretenses, a false representation, or actual fraud, other than a statement respecting the debtor’s or an insider’s financial condition. Section 523(a)(2)(A) has been litigated extensively since its passage and the basic law regarding the provision is well established. The Court of Appeals for the Eleventh Circuit has defined fraud under Section 523(a)(2)(A) as follows: Courts have generally interpreted § 523(a)(2)(A) to require the traditional elements of common law fraud. A creditor must prove that: (1) the debtor made a false representation to deceive the creditor, (2) the creditor relied on the misrepresentation, (3) the reliance was justified, and (4) the creditor sustained a loss as a result of the misrepresentation. SEC v. Bilzerian, 153 F.3d 1278, 1281 (11 Cir.1998). Section 523(a)(2)(A) also excepts debts from discharge if the debt is the result of false pretenses or a false representation. Courts have defined “false pretenses” as [A] series of events, activities or communications which, when considered collectively, create a false and misleading set of circumstances, or false and misleading understanding of a transaction, in which a creditor is wrongfully induced by the debtor to transfer property or extend credit to the debtor.... A false pretense is usually, but not always, the product of multiple events, acts or representations undertaken by a debtor which purposely create a contrived and misleading understanding of a transaction that, in turn, wrongfully induces the creditor to extend credit to the debtor. A “false pretense” is established or fostered willfully, knowingly and by design; it is not the result of inadvertence. Memorial Hospital v. Sarama (In re Sarama), 192 B.R. 922, 927-28 (Bankr.N.D.Ill.1996) (citations omitted). “What constitutes ‘false pretenses’ in the context of § 523(a)(2)(A) has been defined as ‘implied misrepresentations or conduct intended to create and foster a false impression.’ ” Id. at 927 (citations omitted). It is the burden of the" }, { "docid": "15287299", "title": "", "text": "to the dischargeability of the $32,994 debt under 11 U.S.C. § 523(a)(2). The Plaintiff alleges that Debtors, through their agent, made false representations by becoming borrowers and purchasers of the Property, when in fact they had no intention of making any payments on the Sargis Note or residing at the Property. III. Applicable Law A. Count I — False Representation and Actual Fraud § 523(a)(2)(A) A party seeking to establish an exception to discharge of a debt bears the burden of proof. Goldberg Sec., Inc. v. Scarlata (In re Scarlata), 979 F.2d 521, 524 (7th Cir.1992). A creditor must meet this burden by a preponderance of the evidence. Grogan v. Garner, 498 U.S. 279, 291, 111 S.Ct. 654, 112 L.Ed.2d 755 (1991). Section 523(a)(2)(A) of the Bankruptcy Code (the “Code”) excepts from discharge a debt incurred by “false pre tenses, a false representation, or actual fraud, other than a statement respecting the debtor’s or an insider’s financial condition.” 11 U.S.C. § 523(a)(2)(A) sets forth three separate grounds for dischargeability: false pretenses, false representation, or actual fraud. An intentional falsehood relied on under § 523(a)(2)(A) must concern a material fact. Bletnitsky v. Jairath, 259 B.R. 308, 314 (Bankr.N.D.Ill.2001). 1.False Pretenses or False Representation To except a debt from discharge based on false pretenses or a false representation, a creditor must establish that: “(1) the debtor made a false representation or omission, (2) that the debtor (a) knew was false or made with reckless disregard for the truth and (b) was made with the intent to deceive, (3) upon which the creditor justifiably relied.” Ojeda v. Goldberg, 599 F.3d 712, 716-17 (7th Cir.2010). All three elements must be proven to prevail on a § 523(a)(2)(A) claim. Glucona Am., Inc. v. Ardisson (In re Ardisson), 272 B.R. 346, 357 (Bankr.N.D.Ill.2001). False pretenses under § 523(a)(2)(A) “include implied misrepresentations of conduct intended to create or foster a false impression.” Nicholas & Assoc, v. Morgan (In re Morgan), 2011 WL 3651327, at *4 (Bankr.N.D.Ill. Aug.18, 2011) (internal citation omitted). A false pretense does not require overt misrepresentations. Mem’l Hosp. v. Sarama (In re Sarama), 192" }, { "docid": "3766346", "title": "", "text": "and a false representation. Id.; Bletnitsky v. Jairath (In re Jairath), 259 B.R. 308, 314 (Bankr. N.D.Ill.2001). A single test is applied to all three grounds even though the elements for each exception vary under common law. Jairath, 259 B.R. at 314. a. False Pretenses or False Representation In order to except a debt from discharge due to false pretenses or a false representation under § 523(a)(2)(A), a creditor must establish the following elements: (1) the debtor made a false representation of fact (2) which the debtor (a) either knew to be false or made with reckless disregard for its truth and (b) made with an intent to deceive; and (3) the creditor justifiably relied on the false representation. Baker Dev. Corp. v. Mulder (In re Mulder), 307 B.R. 637, 643 (Bankr. N.D.Ill.2004); Bednarsz v. Brzakala (In re Brzakala), 305 B.R. 705, 710 (Bankr.N.D.Ill.2004). To prevail on a § 523(a)(2)(A) complaint, all three elements must be established. Glucona Am., Inc. v. Ardisson (In re Ardisson), 272 B.R. 346, 357 (Bankr.N.D.Ill.2001). Failure to establish any one fact is outcome determinative. Jairath, 259 B.R. at 314. False pretenses in the context of § 523(a)(2)(A) include implied misrepresentations or conduct intended to create or foster a false impression. Mem’l Hosp. v. Sarama (In re Sarama), 192 B.R. 922, 927 (Bankr.N.D.Ill.1996). The Court has defined false pretenses as follows: [A] series of events, activities or communications which, when considered collectively, create a false and misleading set of circumstances, or false and misleading understanding of a transaction, in which a creditor is wrongfully induced by the debtor to transfer property or extend credit to the debtor.... A false pretense is usually, but not always, the product of multiple events, acts or representations undertaken by a debtor which purposely create a contrived and misleading understanding of a transaction that, in turn, wrongfully induces the creditor to extend credit to the debtor. A “false pretense” is established or fostered willfully, knowingly and by design; it is not the result of inadvertence. Sterna v. Paneras (In re Paneras), 195 B.R. 395, 406 (Bankr.N.D.Ill.1996) (quoting Evans v. Dunston (In" }, { "docid": "21174440", "title": "", "text": "of credit, to the extent obtained by— (A) false pretenses, a false representation, or actual fraud, other than a statement respecting the debtor’s or an insider’s financial condition[.] 11 U.S.C. § 523(a)(2)(A). Section 523(a)(2)(A) lists three separate grounds for dischargeability: actual fraud, false pretenses, and a false representation. Id.; Bletnitsky v. Jairath (In re Jairath), 259 B.R. 308, 314 (Bankr.N.D.Ill.2001). liven though the elements for each exception vary under common law, courts in the Seventh Circuit are required to apply a single test to all three grounds. Jairath, 259 B.R. at 314. 1. False pretenses or false representation In order to except false pretenses or a false representation from discharge under § 523(a)(2)(A), the Plaintiffs must establish the following elements: (1) the Debtor made a false representation of fact (2) which the Debtor (a) either knew to be false or made with reckless disregard for its truth and (b) made with an intent to deceive; and (3) the Plaintiffs justifiably relied on the false representation. See Mulder, 307 B.R. at 643; Bednarsz v. Brzakala (In re Brzakala), 305 B.R. 705, 710 (Bankr.N.D.Ill.2004). To prevail on a § 523(a)(2)(A) complaint, all three elements must be established. Glucona Am., Inc. v. Ardisson (In re Ardisson), 272 B.R. 346, 357 (Bankr.N.D.Ill.2001). Failure to establish any one fact is outcome determinative. Jairath, 259 B.R. at 314. “Proof of intent to deceive is measured by the debtor’s subjective intention at the time the representation was made.” CFC Wireforms, Inc. v. Monroe (In re Monroe), 304 B.R. 349, 356 (Bankr. N.D.Ill.2004). “Where a person knowingly or recklessly makes false representations which the person knows or should know will induce another to act, the finder of fact may logically infer an intent to deceive.” Jairath, 259 B.R. at 315. Reliance on a false pretense or false representation under § 523(a)(2)(A) must be “justifiable.” Field v. Mans, 516 U.S. 59, 74-75, 116 S.Ct. 437, 133 L.Ed.2d 351 (1995). The justifiable reliance standard imposes no duty to investigate unless the falsity of the representation is readily apparent. Id. at 70-72, 116 S.Ct. 437. Whether a party justifiably relies on" }, { "docid": "15287300", "title": "", "text": "fraud. An intentional falsehood relied on under § 523(a)(2)(A) must concern a material fact. Bletnitsky v. Jairath, 259 B.R. 308, 314 (Bankr.N.D.Ill.2001). 1.False Pretenses or False Representation To except a debt from discharge based on false pretenses or a false representation, a creditor must establish that: “(1) the debtor made a false representation or omission, (2) that the debtor (a) knew was false or made with reckless disregard for the truth and (b) was made with the intent to deceive, (3) upon which the creditor justifiably relied.” Ojeda v. Goldberg, 599 F.3d 712, 716-17 (7th Cir.2010). All three elements must be proven to prevail on a § 523(a)(2)(A) claim. Glucona Am., Inc. v. Ardisson (In re Ardisson), 272 B.R. 346, 357 (Bankr.N.D.Ill.2001). False pretenses under § 523(a)(2)(A) “include implied misrepresentations of conduct intended to create or foster a false impression.” Nicholas & Assoc, v. Morgan (In re Morgan), 2011 WL 3651327, at *4 (Bankr.N.D.Ill. Aug.18, 2011) (internal citation omitted). A false pretense does not require overt misrepresentations. Mem’l Hosp. v. Sarama (In re Sarama), 192 B.R. 922, 928 (Bankr.N.D.Ill.1996). Rather, “omissions or a failure to disclose on the part of the debtor can constitute misrepresentations where the circumstances are such that the omissions or failure to disclose create a false impression which is known by the debtor.” Sarama, 192 B.R. at 928. A false representation, by contrast, is an express misrepresentation demonstrated either by a spoken or written statement or through conduct. In re Morgan, at *4. A debtor’s silence concerning a material fact can also constitute a false representation. Id. (citing In re Westfall, 379 B.R. 798, 803 (Bankr.C.D.Ill.2007)). 2.Actual Fraud To establish a claim for actual fraud under § 523(a)(2)(A), the plaintiff must prove that (1) a fraud occurred (2) the debtor intended to defraud, and (3) the fraud created the debt. Wachovia Securities, LLC v. Jahelka (In re Jahelka), 442 B.R. 663, 669 (Bankr.N.D.Ill.2010). The Seventh Circuit Court of Appeals has defined fraud for purposes of § 523(a)(2)(A) as follows: Fraud is a generic term, which embraces all the multifarious means which human ingenuity can devise and" }, { "docid": "14191307", "title": "", "text": "after July 2008, the time at which the debt at issue was incurred. According to the Debtor, those events cannot serve as a basis for nondischargeability under § 523(a)(2)(A). If the Court disregards all events after July 2008, as well as any testimony relating thereto, the Debtor says, there is no evidence to establish that he did not fully intend to use the money tendered by 6050 Grant to pay for the architectural work and other soft costs related to the building of the custom home. The Court rejects the Debtor’s argument and finds that he has failed to demonstrate a manifest error of law or fact. As the Court painstakingly explained in the Opinion, a false representation for purposes of § 523(a)(2)(A) is an express misrepresentation that can be demonstrated either by a spoken or written statement or through conduct. New Austin Roosevelt Currency Exch., Inc. v. Sanchez (In re Sanchez), 277 B.R. 904, 908 (Bankr.N.D.Ill.2002); Bletnitsky v. Jairath (In re Jairath), 259 B.R. 308, 314 (Bankr.N.D.Ill.2001). In contrast, false pretenses include “implied misrepresentations or conduct intended to create and foster a false impression.” Mem’l Hosp. v. Sarama (In re Sarama), 192 B.R. 922, 927 (Bankr.N.D.Ill.1996) (internal quotation omitted). “The key character of false pretenses” is “a series of events or communications which collectively create[s] a false or misleading set of circumstances [by] which the creditor is wrongfully induced by the debtor to transfer property; it is multiple events done willfully, knowingly, and by design.” Kadlecek v. Ferguson (In re Ferguson), 222 B.R. 576, 586 (Bankr.N.D.Ill.1998); see also Sterna v. Paneras (In re Paneras), 195 B.R. 395, 406 (Bankr.N.D.Ill.1996). Finally, “actual fraud” under the statutory exception encompasses a wide spectrum of circumstances and consists of “any deceit, artifice, trick, or design involving direct and active operation of the mind, used to circumvent and cheat another[.]” McClellan v. Cantrell, 217 F.3d 890, 893 (7th Cir.2000) (internal quotation omitted) (also noting that “ ‘[n]o definite and invariable rule can be laid down as a general proposition defining fraud, and it includes all surprise, trick, cunning, dissembling, and any unfair way by" }, { "docid": "20242442", "title": "", "text": "three separate grounds for dischargeability: actual fraud, false pretenses, and a false representation. Id.; Bletnitsky v. Jairath (In re Jairath), 259 B.R. 308, 314 (Bankr.N.D.Ill.2001). 1. False Pretenses or False Representation In order to except a debt from discharge under the false pretenses or false representation prongs of § 523(a)(2)(A), the creditor must establish the following elements: (1) the debtor made a false representation of fact; (2) which the debtor (a) either knew to be false or made with reckless disregard for its truth and (b) made with an intent to deceive; and (3) the creditor justifiably relied on the false representation. Ojeda v. Goldberg, 599 F.3d 712, 716-17 (7th Cir.2010); Baker Dev. Corp. v. Mulder (In re Mulder), 307 B.R. 637, 643 (Bankr. N.D.Ill.2004); Bednarsz v. Brzakala (In re Brzakala), 305 B.R. 705, 710 (Bankr. N.D.Ill.2004). To prevail on a § 523(a)(2)(A) complaint, all three elements must be established. Glucona Am., Inc. v. Ardisson (In re Ardisson), 272 B.R. 346, 357 (Bankr.N.D.Ill.2001). Failure to establish any one fact is outcome determinative. Jairath, 259 B.R. at 314. False pretenses in the context of § 523(a)(2)(A) include implied misrepresentations or conduct intended to create or foster a false impression. Mem’l Hosp. v. Sarama (In re Sarama), 192 B.R. 922, 927 (Bankr.N.D.Ill.1996). The Court has defined false pretenses as follows: [A] series of events, activities or communications which, when considered collectively, create a false and misleading set of circumstances, or false and misleading understanding of a transaction, in which a creditor is wrongfully induced by the debtor to transfer property or extend credit to the debtor.... A false pretense is usually, but not always, the product of multiple events, acts or representations undertaken by a debtor which purposely create a contrived and misleading understanding of a transaction that, in turn, wrongfully induces the creditor to extend credit to the debtor. A “false pretense” is established or fostered willfully, knowingly and by design; it is not the result of inadvertence. Sterna v. Paneras (In re Paneras), 195 B.R. 395, 406 (Bankr.N.D.Ill.1996) (internal quotation omitted). False pretenses do not necessarily require overt misrepresentations. Sarama," }, { "docid": "4585099", "title": "", "text": "result of false pretenses or a false representation. Courts have defined “false pretenses” as [A] series of events, activities or communications which, when considered collectively, create a false and misleading set of circumstances, or false and misleading understanding of a transaction, in which a creditor is wrongfully induced by the debtor to transfer property or extend credit to the debtor.... A false pretense is usually, but not always, the product of multiple events, acts or representations undertaken by a debtor which purposely create a contrived and misleading understanding of a transaction that, in turn, wrongfully induces the creditor to extend credit to the debtor. A “false pretense” is established or fostered willfully, knowingly and by design; it is not the result of inadvertence. Memorial Hospital v. Sarama (In re Sarama), 192 B.R. 922, 927-28 (Bankr.N.D.Ill.1996) (citations omitted). “What constitutes ‘false pretenses’ in the context of § 523(a)(2)(A) has been defined as ‘implied misrepresentations or conduct intended to create and foster a false impression.’ ” Id. at 927 (citations omitted). It is the burden of the Plaintiff to prove the elements of a Section 523 claim by a preponderance of the evidence. Bil-zerian, 153 F.3d. at 1281. (Citing Grogan v. Garner, 498 U.S. 279, 289, 111 S.Ct. 654, 661, 112 L.Ed.2d 755 (1991)). In determining whether or not a plaintiff has proven fraud, the Eleventh Circuit has stated that A bankruptcy court may look to the totality of the circumstances, including the recklessness of a debtor’s behavior, to infer whether a debtor submitted a statement with intent to deceive. “Reckless disregard for the truth or falsity of a statement combined with the sheer magnitude of the resultant misrepresentation may combine to produce the inferrence [sic] of intent [to deceive].” Equitable Bank v. Miller (In re Miller), 39 F.3d 301, 305 (11th Cir.1994) (citations omitted). See also In re Cravey, 105 B.R. 700, 703 (Bankr.M.D.Fla.1989) (Proctor, J.) (“The misrepresentation and nondisclosure of material facts, coupled with their deceptive conduct with [all parties], establishes the fraudulent intent of the defendants, under the totality of the circumstances.”) (citation omitted). The Court concludes that Ershow-sky" }, { "docid": "1542419", "title": "", "text": "funds at issue from Richard through false pretenses or representations she either knew to be false, or made with such reckless disregard for the truth as to constitute willful misrepresentations; (2) Mary possessed the requisite scienter, i.e., she actually intended to deceive Richard; and (3) to his detriment, Richard justifiably relied on the misrepresentations. See Field v. Mans, - U.S. -, -, 116 S.Ct. 437, 446, 133 L.Ed.2d 351 (1995); Mayer, 51 F.3d at 673; In re Sheridan, 57 F.3d 627, 635 (7th Cir.1995); Goldberg Securities, Inc. v. Scarlata (In re Scarlata), 979 F.2d 521, 525 (7th Cir.1992). An intent to deceive may be inferred from a false representation which the debtor knows or should know will induce another to advance money to the debtor. First Nat’l Bank of Red Bud v. Kimzey (In re Kimzey), 761 F.2d 421, 423-24 (7th Cir.1985). Fraudulent intent can be established by circumstantial evidence. Union Nat’l Bank of Marseilles v. Leigh (In re Leigh), 165 B.R. 203, 215 (Bankr.N.D.Ill.1993); Katahn Assoc., Inc. v. Wien (In re Wien), 155 B.R. 479, 488 (Bankr.N.D.Ill.1993). What constitutes “false pretenses” in the context of § 523(a)(2)(A) has been defined as “implied misrepresentations or conduct intended to create and foster a false impression.” Bryson, 187 B.R. at 959 (quoting Peterson v. Bozzano (In re Bozzano), 173 B.R. 990, 993 (Bankr.M.D.N.C.1994)); see also In re Scarlata, 112 B.R. 279 (Bankr.N.D.Ill.1990), aff'd in part, rev’d in part, 127 B.R. 1004, 1009 (N.D.Ill.1991), aff'd in part, 979 F.2d 521 (7th Cir.1992); Itaparica, Ltd. v. Hargrove (In re Hargrove), 164 B.R. 768, 772 (Bankr.N.D.Okla.1994). The court in Evans v. Dunston (In re Dunston), 117 B.R. 632 (Bankr.D.Colo.1990), aff'd in part, rev’d in part, 146 B.R. 269 (D.Colo.1992), further defined “false pretenses” as follows: [A] series of events, activities or communications which, when considered collectively, create a false and misleading set of circumstances, or false and misleading understanding of a transaction, in which a creditor is wrongfully induced by the debt- or to transfer property or extend credit to the debtor.... A false pretense is usually, but not always, the product of multiple events," }, { "docid": "17540663", "title": "", "text": "made with reckless disregard for its truth and (b) made with an intent to deceive, (3) upon which the creditor justifiably relied. Ojeda v. Goldberg, 599 F.3d 712, 716-17 (7th Cir.2010); In re Bero, 110 F.3d 462, 465 (7th Cir.1997); Citibank (S.D.), N.A. v. Michel, 220 B.R. 603, 605 (N.D.Ill.1998); Deady v. Hanson (In re Hanson), 432 B.R. 758, 771 (Bankr.N.D.Ill.2010); Baermann v. Ryan (In re Ryan), 408 B.R. 143, 156 (Bankr.N.D.Ill.2009). Under section 523(a)(2)(A), a false representation is an express misrepresentation that can be demonstrated either by a spoken or written statement or through conduct. New Austin Roosevelt Currency Exch., Inc. v. Sanchez (In re Sanchez), 277 B.R. 904, 908 (Bankr.N.D.Ill.2002); Rae v. Scarpello (In re Scarpello), 272 B.R. 691, 700 (Bankr.N.D.Ill.2002). Additionally, “[a] debtor’s silence regarding a material fact can constitute a false representation under [section] 523(a)(2)(A).” Hanson, 432 B.R. at 772 (internal quotation omitted). In contrast, false pretenses include “implied misrepresentations or conduct intended to create and foster a false impression.” Mem’l Hosp. v. Sarama (In re Sarama), 192 B.R. 922, 927 (Bankr.N.D.Ill.1996) (internal quotation omitted). As above, “omissions or a failure to disclose on the part of the debtor can constitute misrepresentations where the circumstances are such that omissions or failure to disclose create a false impression which is known by the debtor.” Id. at 928. The court has defined false pretenses as follows: [A] series of events, activities or communications which, when considered collectively, create a false and misleading set of circumstances, or false and misleading understanding of a transaction, in which a creditor is wrongfully induced by the debtor to transfer property or extend credit to the debtor.... A false pretense is usually, but not always, the product of multiple events, acts or representations undertaken by a debtor which purposely create a contrived and misleading understanding of a transaction that, in turn, wrongfully induces the creditor to extend credit to the debtor. A “false pretense” is established or fostered willfully, knowingly and by design; it is not the result of inadvertence. Sterna v. Paneras (In re Paneras), 195 B.R. 395, 406 (Bankr.N.D.Ill.1996) (quoting Evans" }, { "docid": "17540664", "title": "", "text": "(Bankr.N.D.Ill.1996) (internal quotation omitted). As above, “omissions or a failure to disclose on the part of the debtor can constitute misrepresentations where the circumstances are such that omissions or failure to disclose create a false impression which is known by the debtor.” Id. at 928. The court has defined false pretenses as follows: [A] series of events, activities or communications which, when considered collectively, create a false and misleading set of circumstances, or false and misleading understanding of a transaction, in which a creditor is wrongfully induced by the debtor to transfer property or extend credit to the debtor.... A false pretense is usually, but not always, the product of multiple events, acts or representations undertaken by a debtor which purposely create a contrived and misleading understanding of a transaction that, in turn, wrongfully induces the creditor to extend credit to the debtor. A “false pretense” is established or fostered willfully, knowingly and by design; it is not the result of inadvertence. Sterna v. Paneras (In re Paneras), 195 B.R. 395, 406 (Bankr.N.D.Ill.1996) (quoting Evans v. Dunston (In re Dunston), 117 B.R. 632, 641 (Bankr.D.Colo.1990), aff'd in part, rev’d in part, 146 B.R. 269 (D.Colo.1992)); see also John Deere Co. v. Broholm (In re Broholm), 310 B.R. 864, 872 (Bankr.N.D.Ill.2004) (quoting Paneras ). Unlike false pretenses and false representation, “actual fraud” requires neither a misrepresentation nor reliance. McClellan v. Cantrell, 217 F.3d 890, 894 (7th Cir.2000). Encompassing a broad spectrum of circumstances, it consists of “any deceit, artifice, trick, or design involving direct and active operation of the mind, used to circumvent and cheat another[.]” Id. at 893 (internal quotation omitted). In order to establish a claim based on “actual fraud,” a creditor must prove that: (1) “actual fraud” occurred; (2) the debtor intended to defraud the creditor; and (3) the debtor’s actual fraud created the debt at issue. Bletnitsky v. Jairath (In re Jairath), 259 B.R. 308, 314 (Bankr.N.D.Ill.2001). Scienter is a required element of any cause of action under section 523(a)(2)(A). Ryan, 408 B.R. at 157-58. For purposes of the false pretenses and false representation prongs of the" }, { "docid": "20242443", "title": "", "text": "at 314. False pretenses in the context of § 523(a)(2)(A) include implied misrepresentations or conduct intended to create or foster a false impression. Mem’l Hosp. v. Sarama (In re Sarama), 192 B.R. 922, 927 (Bankr.N.D.Ill.1996). The Court has defined false pretenses as follows: [A] series of events, activities or communications which, when considered collectively, create a false and misleading set of circumstances, or false and misleading understanding of a transaction, in which a creditor is wrongfully induced by the debtor to transfer property or extend credit to the debtor.... A false pretense is usually, but not always, the product of multiple events, acts or representations undertaken by a debtor which purposely create a contrived and misleading understanding of a transaction that, in turn, wrongfully induces the creditor to extend credit to the debtor. A “false pretense” is established or fostered willfully, knowingly and by design; it is not the result of inadvertence. Sterna v. Paneras (In re Paneras), 195 B.R. 395, 406 (Bankr.N.D.Ill.1996) (internal quotation omitted). False pretenses do not necessarily require overt misrepresentations. Sarama, 192 B.R. at 928. “Instead, omissions or a failure to disclose on the part of a debtor can constitute misrepresentations where the circumstances are such that omissions or failure to disclose create a false impression which is known by the debtor.” Id. Silence or concealment may constitute false pretenses. Shelby Shore Drugs, Inc. v. Sielschott (In re Sielschott), 332 B.R. 570, 573 (Bankr.C.D.Ill.2005); Fosco v. Fosco (In re Fosco), 289 B.R. 78, 86 (Bankr.N.D.Ill.2002). A false representation can be shown through conduct and does not require a spoken or written statement. Jairath, 259 B.R. at 314. In other words, “[a] debtor’s silence regarding a material fact can constitute a false representation under § 523(a)(2)(A).” Health Benefit Plan v. Westfall (In re Westfall), 379 B.R. 798, 803 (Bankr.C.D.Ill.2007). A debtor’s failure to disclose pertinent information may be a false representation where the circumstances imply a specific set of facts and disclosure is necessary to correct what would otherwise be a false impression. Trizna & Lepri v. Malcolm (In re Malcolm), 145 B.R. 259, 263 (Bankr.N.D.Ill. 1992)." }, { "docid": "3766347", "title": "", "text": "fact is outcome determinative. Jairath, 259 B.R. at 314. False pretenses in the context of § 523(a)(2)(A) include implied misrepresentations or conduct intended to create or foster a false impression. Mem’l Hosp. v. Sarama (In re Sarama), 192 B.R. 922, 927 (Bankr.N.D.Ill.1996). The Court has defined false pretenses as follows: [A] series of events, activities or communications which, when considered collectively, create a false and misleading set of circumstances, or false and misleading understanding of a transaction, in which a creditor is wrongfully induced by the debtor to transfer property or extend credit to the debtor.... A false pretense is usually, but not always, the product of multiple events, acts or representations undertaken by a debtor which purposely create a contrived and misleading understanding of a transaction that, in turn, wrongfully induces the creditor to extend credit to the debtor. A “false pretense” is established or fostered willfully, knowingly and by design; it is not the result of inadvertence. Sterna v. Paneras (In re Paneras), 195 B.R. 395, 406 (Bankr.N.D.Ill.1996) (quoting Evans v. Dunston (In re Dunston), 117 B.R. 632, 641 (Bankr.D.Colo.1990), aff'd in part, rev’d in part, 146 B.R. 269 (D.Colo.1992)). Accord John Deere Co. v. Broholm (In re Broholm), 310 B.R. 864, 872 (Bankr.N.D.Ill.2004) (quoting Paneras ). False pretenses do not necessarily require overt misrepresentations. Sarama, 192 B.R. at 928. “Instead, omissions or a failure to disclose on the part of a debtor can constitute misrepresentations where the circumstances are such that omissions or failure to disclose create a false impression which is known by the debtor.” Id. Silence or concealment may constitute false pretenses. Shelby Shore Drugs, Inc. v. Sielschott (In re Sielschott), 332 B.R. 570, 573 (Bankr.C.D.Ill.2005); Fosco v. Fosco (In re Fosco), 289 B.R. 78, 86 (Bankr.N.D.Ill.2002). A false representation can be shown through conduct and does not require a spoken or written statement. Jairath, 259 B.R. at 314. In other words, “[a] debtor’s silence regarding a material fact can constitute a false representation under § 523(a)(2)(A).” Health Benefit Plan v. Westfall (In re Westfall), 379 B.R. 798, 803 (Bankr.C.D.Ill.2007). A debtor’s failure to disclose" }, { "docid": "3766345", "title": "", "text": "liberally in favor of a debtor. In re Morris, 223 F.3d 548, 552 (7th Cir. 2000); Kolodziej v. Reines (In re Reines), 142 F.3d 970, 972-73 (7th Cir.1998); In re Zarzynski, 771 F.2d 304, 306 (7th Cir. 1985). “The statute is narrowly construed so as not to undermine the Code’s purpose of giving the honest but unfortunate debt- or a fresh start.” Park Nat’l Bank & Trust of Chi. v. Paul (In re Paul), 266 B.R. 686, 693 (Bankr.N.D.Ill.2001). 1. 11 U.S.C. § 523(a)(2)(A) Section 523 of the Bankruptcy Code enumerates specific, limited exceptions to the dischargeability of debts. Section 523(a)(2)(A) provides as follows: (a) A discharge under section 727 ... does not discharge an individual debtor from any debt— (2) for money, property, services, or an extension, renewal, or refinancing of credit, to the extent obtained by— (A) false pretenses, a false representation, or actual fraud, other than a statement respecting the debtor’s or an insider’s financial condition[.] 11 U.S.C. § 523(a)(2)(A). Section 528(a)(2)(A) lists three separate grounds for dischargeability: actual fraud, false pretenses, and a false representation. Id.; Bletnitsky v. Jairath (In re Jairath), 259 B.R. 308, 314 (Bankr. N.D.Ill.2001). A single test is applied to all three grounds even though the elements for each exception vary under common law. Jairath, 259 B.R. at 314. a. False Pretenses or False Representation In order to except a debt from discharge due to false pretenses or a false representation under § 523(a)(2)(A), a creditor must establish the following elements: (1) the debtor made a false representation of fact (2) which the debtor (a) either knew to be false or made with reckless disregard for its truth and (b) made with an intent to deceive; and (3) the creditor justifiably relied on the false representation. Baker Dev. Corp. v. Mulder (In re Mulder), 307 B.R. 637, 643 (Bankr. N.D.Ill.2004); Bednarsz v. Brzakala (In re Brzakala), 305 B.R. 705, 710 (Bankr.N.D.Ill.2004). To prevail on a § 523(a)(2)(A) complaint, all three elements must be established. Glucona Am., Inc. v. Ardisson (In re Ardisson), 272 B.R. 346, 357 (Bankr.N.D.Ill.2001). Failure to establish any one" }, { "docid": "20242441", "title": "", "text": "discharge are to be construed strictly against a creditor and liberally in favor of a debtor. In re Morris, 223 F.3d 548, 552 (7th Cir. 2000); Kolodziej v. Reines (In re Reines), 142 F.3d 970, 972-73 (7th Cir.1998); In re Zarzynski, 771 F.2d 304, 306 (7th Cir. 1985). “[Section 523(a)] is narrowly construed so as not to undermine the Code’s purpose of giving the honest but unfortunate debtor a fresh start.” Park Nat’l Bank & Trust of Chi. v. Paul (In re Paul), 266 B.R. 686, 693 (Bankr.N.D.Ill.2001). B. 11 U.S.C. § 523(a)(2)(A) Section 523 of the Bankruptcy Code enumerates specific, limited exceptions to the dischargeability of debts. Section 523(a)(2)(A) provides as follows: (a) A discharge under section 727 ... does not discharge an individual debtor from any debt— (2) for money, property, services, or an extension, renewal, or refinancing of credit, to the extent obtained by— (A) false pretenses, a false representation, or actual fraud, other than a statement respecting the debtor’s or an insider’s financial condition[.] 11 U.S.C. § 523(a)(2)(A). Section 523(a)(2)(A) lists three separate grounds for dischargeability: actual fraud, false pretenses, and a false representation. Id.; Bletnitsky v. Jairath (In re Jairath), 259 B.R. 308, 314 (Bankr.N.D.Ill.2001). 1. False Pretenses or False Representation In order to except a debt from discharge under the false pretenses or false representation prongs of § 523(a)(2)(A), the creditor must establish the following elements: (1) the debtor made a false representation of fact; (2) which the debtor (a) either knew to be false or made with reckless disregard for its truth and (b) made with an intent to deceive; and (3) the creditor justifiably relied on the false representation. Ojeda v. Goldberg, 599 F.3d 712, 716-17 (7th Cir.2010); Baker Dev. Corp. v. Mulder (In re Mulder), 307 B.R. 637, 643 (Bankr. N.D.Ill.2004); Bednarsz v. Brzakala (In re Brzakala), 305 B.R. 705, 710 (Bankr. N.D.Ill.2004). To prevail on a § 523(a)(2)(A) complaint, all three elements must be established. Glucona Am., Inc. v. Ardisson (In re Ardisson), 272 B.R. 346, 357 (Bankr.N.D.Ill.2001). Failure to establish any one fact is outcome determinative. Jairath, 259 B.R." }, { "docid": "21174439", "title": "", "text": "(Bankr.N.D.Ill.2001). B. 11 U.S.C. § 523(a)(2) Pursuant to Count III of the complaint, the Plaintiffs allege that the Debtor made several false statements of material fact, including that she would transfer FSI’s goodwill and assets to GWFS in order to grow GWFS’s business, and that GWFS had insufficient funds to pay its vendors and business expenses. According to the Plaintiffs, the Debtor’s statements and representations were material and she knew her statements were false. The Plaintiffs allege that the Debtor made those false statements in order to induce them to contribute funds to pay GWFS’s expenses, execute the Agreement, and obligate themselves personally on corporate loans. Finally, the Plaintiffs allege that they relied on the Debtor’s false statements and representations and that their reliance was reasonable. Section 523 of the Bankruptcy Code enumerates specific, limited exceptions to the dischargeability of debts. Section 523(a)(2)(A) provides as follows: (a) A discharge under section 727 ... does not discharge an individual debtor from any debt — • (2) for money, property, services, or an extension renewal, or refinancing of credit, to the extent obtained by— (A) false pretenses, a false representation, or actual fraud, other than a statement respecting the debtor’s or an insider’s financial condition[.] 11 U.S.C. § 523(a)(2)(A). Section 523(a)(2)(A) lists three separate grounds for dischargeability: actual fraud, false pretenses, and a false representation. Id.; Bletnitsky v. Jairath (In re Jairath), 259 B.R. 308, 314 (Bankr.N.D.Ill.2001). liven though the elements for each exception vary under common law, courts in the Seventh Circuit are required to apply a single test to all three grounds. Jairath, 259 B.R. at 314. 1. False pretenses or false representation In order to except false pretenses or a false representation from discharge under § 523(a)(2)(A), the Plaintiffs must establish the following elements: (1) the Debtor made a false representation of fact (2) which the Debtor (a) either knew to be false or made with reckless disregard for its truth and (b) made with an intent to deceive; and (3) the Plaintiffs justifiably relied on the false representation. See Mulder, 307 B.R. at 643; Bednarsz v. Brzakala (In" }, { "docid": "10755844", "title": "", "text": "which the creditor justifiably relied. Reeves v. Davis (In re Davis), 638 F.3d 549, 553 (7th Cir.2011); see also Ojeda v. Goldberg, 599 F.3d 712, 716-17 (7th Cir.2010); In re Bero, 110 F.3d 462, 465 (7th Cir.1997); Jahelka, 442 B.R. at 668-69. A creditor must establish all three elements to support a finding of false pretense or false representation. Ryan, 408 B.R. at 156; see also Rae v. Scarpello (In re Scarpello), 272 B.R. 691, 700 (Bankr.N.D.Ill.2002) (Squires, J.). Failure to establish any one fact is outcome determinative. Hanson, 432 B.R. at 771 (citing Jairath, 259 B.R. at 314). Under section 523(a)(2)(A), a false representation is an express misrepresentation that can be demonstrated either by a spoken or written statement or through conduct. See Scarpello, 272 B.R. at 700; In re Philopulos, 313 B.R. 271, 281 (Bankr.N.D.Ill.2004) (Schmetterer, J.); New Austin Roosevelt Currency Exch., Inc. v. Sanchez (In re Sanchez), 277 B.R. 904, 908 (Bankr.N.D.Ill.2002) (Schmetterer, J.). As a spoken or written statement is not required for a false representation, “[a] debtor’s silence regarding a material fact can constitute a false representation under § 523(a)(2)(A).” Hanson, 432 B.R. at 772 (internal quotation omitted); see also Scarpello, 272 B.R. at 700. “A debt- or’s failure to disclose pertinent information may be a false representation where the circumstances imply a specific set of facts and disclosure is necessary to correct what would otherwise be a false impression.” Ryan, 408 B.R. at 157 (citing Trizna & Lepri v. Malcolm (In re Malcolm), 145 B.R. 259, 263 (Bankr.N.D.Ill.1992) (Wedoff, J.)). In contrast, “[Qalse pretenses in the context of section 523(a)(2)(A) include implied misrepresentations or conduct intended to create or foster a false impression.” Media House Productions, Inc. v. Amari (In re Amari), 483 B.R. 836, 846 (Bankr.N.D.Ill.2012) (Schmetterer, J.) (citing Sterna v. Paneras (In re Paneras), 195 B.R. 395, 406 (Bankr.N.D.Ill.1996) (Squires, J.)). The implication arises when a debtor, with the intent to mislead a creditor, engages in “a series of events, activities or communications which, when considered collectively, create a false and misleading set of circumstances, ... or understanding of a transaction, in" }, { "docid": "3817629", "title": "", "text": "to a set-off of $2,000.00 because Mannaro used $2,000.00 from the Miami account without authoriza tion to purchase the Batman gemstones. Debtor points out that it was because of this $2,000.00 purchase that some of the checks for the lapidary failed to clear the bank. CONCLUSIONS OF LAW Itaparica contends that its debt should be excepted from discharge pursuant to § 523(a)(2)(A), which provides as follows: (a) A discharge under section 727, 1141, 1228(a), 1228(b), or 1328(b) of this title does not discharge an individual debtor from any debt— (2)for money, property, services, or an extension, renewal, or refinancing of credit, to the extent obtained by— (A) false pretenses, a false representation, or actual fraud, other than a statement respecting the debtors or insiders financial condition[.] 11 U.S.C. § 523(a)(2)(A). In order to prove the nondischarge-ability of its debt, Itaparica must establish by a preponderance of the evidence that: 1. The debtor made a knowingly false representation or pretense; 2. The representation or pretense was made with the intent to deceive the creditor; 3. The creditor reasonably relied upon the representation or pretense; and 4. The creditor sustained a loss as a result of the debtor’s representation or pretense. Grogan v. Garner, 498 U.S. 279, 111 S.Ct. 654, 112 L.Ed.2d 755 (1991); In re Mullet, 817 F.2d 677 (10th Cir.1987). Generally, a false representation refers to an express misrepresentation whereas a false pretense involves an implied misrepresentation or conduct intended to create and foster a false impression. In re Scarlata, 127 B.R. 1004 (Bankr.N.D.Ill.1991); In re Dunston, 117 B.R. 632 (Bankr.D.Colo.1990). In In re Dunston, 117 B.R. 632 (Bankr. D.Colo. 1990), the Court defined “false pretenses” as follows: [A] series of events, activities or communications which, when considered collectively, create a false and misleading set of circumstances, or false and misleading understanding of a transaction, in which a creditor is wrongfully induced by the debt- or to transfer property or extend credit to the debtor.... A false pretense is usually, but not always, the product of multiple events, acts or representations undertaken by a debtor which purposely create a contrived" }, { "docid": "17540662", "title": "", "text": "be construed strictly against the Plaintiff and liberally in favor of the Defendant. See In re Morris, 223 F.3d 548, 552 (7th Cir.2000); Kolodziej v. Reines (In re Reines), 142 F.3d 970, 972-73 (7th Cir.1998). Section 523(a) is “narrowly construed so as not to undermine the Code’s purpose of giving the honest but unfortunate debtor a fresh start.” Paul, 266 B.R. at 693. 1. Section 523(a)(2)(A) Section 523(a)(2)(A) of the Code excepts from discharge any debt “for money, property, services, or an extension, renewal, or refinancing of credit, to the extent obtained by ... false pretenses, a false representation, or actual fraud, other than a statement respecting the debtor’s or an insider’s financial condition^]” 11 U.S.C. § 523(a)(2)(A). Three separate grounds for dischargeability are included under section 528(a)(2)(A): false pretenses, false representation, and actual fraud. Id. To except a debt from discharge based on false pretenses or false representation, a creditor must establish that: (1) the debtor made a false representation of fact, a representation (2) which the debtor (a) either knew was false or made with reckless disregard for its truth and (b) made with an intent to deceive, (3) upon which the creditor justifiably relied. Ojeda v. Goldberg, 599 F.3d 712, 716-17 (7th Cir.2010); In re Bero, 110 F.3d 462, 465 (7th Cir.1997); Citibank (S.D.), N.A. v. Michel, 220 B.R. 603, 605 (N.D.Ill.1998); Deady v. Hanson (In re Hanson), 432 B.R. 758, 771 (Bankr.N.D.Ill.2010); Baermann v. Ryan (In re Ryan), 408 B.R. 143, 156 (Bankr.N.D.Ill.2009). Under section 523(a)(2)(A), a false representation is an express misrepresentation that can be demonstrated either by a spoken or written statement or through conduct. New Austin Roosevelt Currency Exch., Inc. v. Sanchez (In re Sanchez), 277 B.R. 904, 908 (Bankr.N.D.Ill.2002); Rae v. Scarpello (In re Scarpello), 272 B.R. 691, 700 (Bankr.N.D.Ill.2002). Additionally, “[a] debtor’s silence regarding a material fact can constitute a false representation under [section] 523(a)(2)(A).” Hanson, 432 B.R. at 772 (internal quotation omitted). In contrast, false pretenses include “implied misrepresentations or conduct intended to create and foster a false impression.” Mem’l Hosp. v. Sarama (In re Sarama), 192 B.R. 922, 927" }, { "docid": "10755843", "title": "", "text": "that Michele ratified her agreement to the Sullivan Loan and the Glenn Note, or is otherwise estopped from disaffirming such agreement. Count IV alleges that Mi chael committed fraud and that as a purported agent of Michele, his fraudulent actions should be imputed to her. The complaint in the Michael Adversary contains two counts: Count I seeks to hold the Sullivan Loan nondischargeable on the ground that it was obtained by false statements, false pretenses and actual fraud of Chung and Lopez as Michael’s purported agents, and Count II alleges that the Sullivan Loan was obtained by the false statements, false pretenses and actual fraud of Michael. A. False representation and false pretenses To except a debt from discharge under section 523(a)(2)(A) based on false pretenses or a false representation, the creditor must establish the following elements: (1) the debtor made a false representation or omission of fact; (2) which the debtor (a) knew was false or made with reckless disregard for its truth and (b) made with an intent to deceive; and (3) upon which the creditor justifiably relied. Reeves v. Davis (In re Davis), 638 F.3d 549, 553 (7th Cir.2011); see also Ojeda v. Goldberg, 599 F.3d 712, 716-17 (7th Cir.2010); In re Bero, 110 F.3d 462, 465 (7th Cir.1997); Jahelka, 442 B.R. at 668-69. A creditor must establish all three elements to support a finding of false pretense or false representation. Ryan, 408 B.R. at 156; see also Rae v. Scarpello (In re Scarpello), 272 B.R. 691, 700 (Bankr.N.D.Ill.2002) (Squires, J.). Failure to establish any one fact is outcome determinative. Hanson, 432 B.R. at 771 (citing Jairath, 259 B.R. at 314). Under section 523(a)(2)(A), a false representation is an express misrepresentation that can be demonstrated either by a spoken or written statement or through conduct. See Scarpello, 272 B.R. at 700; In re Philopulos, 313 B.R. 271, 281 (Bankr.N.D.Ill.2004) (Schmetterer, J.); New Austin Roosevelt Currency Exch., Inc. v. Sanchez (In re Sanchez), 277 B.R. 904, 908 (Bankr.N.D.Ill.2002) (Schmetterer, J.). As a spoken or written statement is not required for a false representation, “[a] debtor’s silence regarding a" } ]

[ { "docid": "23021540", "title": "", "text": "incidents. The BIA rejected Allalen’s argument that the IJ’s questioning, tone, or comments denied him a fair hearing and due process. Lastly, the BIA affirmed the denial of withholding of removal and relief under the CAT. Allalen petitioned this court for review of the denial of asylum. He has failed to challenge, on appeal, the IJ’s and the BIA’s determinations that he was not entitled to withholding of removal or relief under the CAT. Therefore, these grounds for relief have been abandoned and we will not address them. Patel v. Gonzales, 470 F.3d 216, 219 (6th Cir.2006). B. Jurisdiction and Standard of Review We have jurisdiction over the petitioner’s request for asylum pursuant to 8 U.S.C. § 1252(a)(1). This court has jurisdiction to review the final decision of the BIA “affirming the IJ’s denial of asylum.” Singh v. Ashcroft, 398 F.3d 396, 400 (6th Cir.2005). Generally, this court reviews the BIA’s decision to determine whether it is supported by substantial evidence. Mostafa v. Ashcroft, 395 F.3d 622, 624 (6th Cir.2005). Where the Board adopts the IJ’s decision and supplements that decision with its own comments, as in this case, we review both the BIA’s and the IJ’s opinions. See Gilaj v. Gonzales, 408 F.3d 275, 283 (6th Cir.2005) (per curiam). An IJ’s credibility determinations are considered findings of fact and are reviewed under the substantial evidence standard. Sylla v. INS, 388 F.3d 924, 925 (6th Cir.2004). We will reverse a credibility determination only if any reasonable adjudicator would be compelled to conclude to the contrary. Pergega v. Gonzales, 417 F.3d 623, 627 (6th Cir.2005). C. Analysis In support of his petition for review, Allalen argues that the IJ’s adverse credibility finding was contrary to the REAL ID Act, that the IJ “incorrectly applied the well-founded fear standard” when he determined that Allalen was not entitled to asylum relief, and that his due process rights were violated when the IJ allegedly treated him in an “antagonistic, derogatory manner” during the course of the hearing. Under the REAL ID Act, credibility determinations are based on the “totality of the circumstances” and should" } ]

[ { "docid": "23284934", "title": "", "text": "identity. Id. at 785. Though we “deeline[d] to reach” Reyes’s argument that the IJ had incorrectly imposed a per se reporting requirement, we nevertheless stated that such a bright-line rule “would indeed be troubling, especially in light of evidence in the record that rape victims in El Salvador regularly underreport such crimes due to the poor response of the authorities,” as well as circuit precedent documenting physical attacks against homosexuals by national police in Latin America. Id. at 789 & n.3. Two years later, we squarely held: [A]n applicant who seeks to establish eligibility for withholding of removal under section 1231(b)(3) on the basis of past persecution at the hands of private parties the government is unwilling or unable to control need not have reported that persecution to the authorities if he can convincingly establish that doing so would have been futile or have subjected him to further abuse. Ornelas-Chavez v. Gonzales, 458 F.3d 1052, 1058 (9th Cir. 2006). We thus “ma[d]e explicit” what may have been only implicit in Korablina, Reyes-Reyes, and In re S-A-. Id. In Omelas-Chavez, we considered a withholding of removal claim by a Mexican gay male who “suffered a great deal of abuse ... because of his homosexuality and female sexual identity”: he was beaten by his parents and raped by his father’s friend, his cousins, and a worker at his grandfather’s hacienda. Id. at 1054. The BIA denied his request for withholding of removal despite finding his testimony credible, concluding that Ornelas-Cha-vez failed to establish the government’s inability or unwillingness to protect him. Id. at 1055. In doing so, the BIA cited “only two pieces of evidence: background country conditions and Ornelas-Chavez’s failure to report the incident to the authorities.” Id. at 1056. We held this was legal error in light of Ornelas-Chavez’s credible testimony that he did not report the abuse to the police “[b]ecause the same police mistreated and harasse[d] [him]”; that “two of [his homosexual] friends were assassinated,” presumably on account of their sexual orientation; and that others had reacted with indifference when he told them about the attacks he suffered." }, { "docid": "22093625", "title": "", "text": "his opinion that it was “unusual” for Raj not to know the whereabouts of Rajinder after they had grown up and fled India together. In Shah, this circuit ruled that an IJ had improperly discounted a petitioner’s credibility on the basis of his disbelief that the petitioner and her husband had not received more correspondence than they had submitted from a certain political party for whom the husband had worked for ten years. 220 F.3d at 1071. The Shah court ruled that such disbelief amounted merely to speculation and conjecture. Id. In Lopez-Reyes v. INS, 79 F.3d 908, 912 (9th Cir.1996), the IJ found “astonishing” the petitioner’s contention that he had not been killed by guerillas after being chased, shot at and beaten. In that case as well, the court rejected the IJ’s finding, ruling that the conclusion was not based upon a cogent reason, but rather upon “personal conjecture about what guerillas likely would and would not do.” Id. Similarly here, the IJ’s adverse credibility determination, insofar as it was based upon his opinion regarding what brothers from India who had grown up and fled India together might or might not do, was purely conjecture. Further, an examination of the record reveals that Raj’s testimony regarding his knowledge of the whereabouts of his brother was not at all “unusual.” Raj testified at his May 25, 2000, hearing that Rajinder was working with a trucking company somewhere in California and was not easily reachable, that he had seen him “three or four months ago,” and that he had not attempted to contact Rajinder prior to the hearing because “I did not know that he would also be needed here.” Later in the hearing, the IJ scheduled a status conference for June 9 and directed Raj to locate his brother prior to that date. At the June 9 hearing, Raj’s counsel informed the IJ that Raj had located Rajinder and that he would be able to appear as a witness in Raj’s case. As was the case in Lopez-Reyes, the IJ’s finding that it was “unusual” that Raj did not know" }, { "docid": "16180414", "title": "", "text": "Romanian government could not possibly be as repressive as Mr. Gui alleged because Mr. Gui is, in fact, still alive. The IJ concluded that a “truly repressive government” would not worry about questions arising should a dissident die. According to the IJ’s logic, any asylum seeker who manages to stay alive long enough to get to the United States and file an application must not be subject to repression, since a truly repressive regime would have succeeded in killing the individual before she could leave. We addressed a similar adverse credibility finding in Lopez-Reyes v. INS. There, the IJ found it “astonishing” that Lopez-Reyes had not been killed if it were true that he had been “chased by guerillas, shot at by guerillas, and beaten by the same guerillas.” Lopez-Reyes, 79 F.3d at 912. We held that the IJ’s conclusion was based on “personal conjecture about what guerillas likely would and would not do. Because conjecture is not a substitute for substantial evidence, we cannot uphold this finding.” Id. The Lopez-Reyes reasoning applies equally here. Furthermore, as Mr. Gui explained repeatedly, he was not a major national figure but a local activist. By his account, the police were trying to quiet him — not necessarily kill him — by use of threats, including his 24 hour 1991 detention, interrogation, and fine for “disturbing the public peace.” The IJ’s disbelief of Mr. Gui on the grounds that the Romanian government must not be repressive because it merely harassed and threatened but did not kill him defies logic and does not provide a legitimate or cogent basis upon which to make an adverse credibility finding. 1996 Letters The IJ found it “extremely interesting” that the only two letters offered in support of Mr. Gui’s application arrived in the spring of 1996 when his hearing was fast approaching. The IJ observed: “The Respondent provided no other letter supporting his claim. Apparently the only letters he has received has [sic] occurred during the time he was place in deportation proceedings.” This court has long held that, where allegations are otherwise unrefuted and credible, the" }, { "docid": "817011", "title": "", "text": "his reasons for delay. At first, Alsamhouri suggested that he was un aware of the July 7 deadline, but the IJ’s factual finding that Alsamhouri was well aware of the deadline and the consequences of not meeting it is not only supported by substantial evidence, but virtually compelled on this record. The IJ’s finding that Alsamhouri did not testify credibly is similarly supported, and unchallenged on appeal. As a result, substantial evidence supports the IJ’s conclusion that Alsamhouri simply “disregarded” the deadline, rather than missing it through circumstances beyond his control. Having found Alsam-houri not to be credible, the IJ was entitled to credit the evidence that Alsamhouri told his original counsel soon after the April 19 hearing that he had retained new counsel, as well as the evidence that he did not in fact retain new counsel until a few days before the July 7 hearing. Thus, contrary to Alsamhouri’s assertions, the IJ was entitled to find that Alsamhouri did delay in hiring an attorney, and that the delay was entirely of his own making. The IJ was then well within his discretion to find that, as against Alsamhouri’s disregard of a known deadline, the government’s strong interest in the orderly and expeditious management of immigration cases justified the denial of a continuance. See Thomas v. INS, 976 F.2d 786, 790 (1st Cir.1992) (recognizing the BIA’s “keen interest in securing the orderly disposition of the numerous claims which enter the vast apparatus of the INS” (quoting Reyes-Arias v. INS, 866 F.2d 500, 503 (D.C.Cir.1989)) (internal quotation marks omitted)); see also Grass v. Gonzales, 418 F.3d 876, 879 (8th Cir.2005) (recognizing the BIA’s interest in “avoiding] unduly protracted proceedings”). Alsamhouri’s arguments to the contrary are unavailing. His primary argument is that regardless of his understanding of the July 7 deadline, because the IJ failed to grant Tannous’s motion to withdraw before the hearing, Tannous was ethically bound to prepare Alsamhouri’s applications, and his failure to do so was a significant factor overlooked by the IJ. Al-samhouri does not explain, however, how Tannous could have prepared the applications without his cooperation," }, { "docid": "22816140", "title": "", "text": "not constitute a state equivalent of 21 U.S.C. § 844(b)(2) or 18 U.S.C. § 3607(c). . Cf. Sierra-Reyes v. INS. 585 F.2d 762, 764 n. 2 (5th Cir.1978) (contending, in dicta, that police reports concerning conduct for which no prosecution resulted \"were not probative of anything and should not have been counted as 'adverse factors’” in denying section 212(c) relief). . Indeed, even dissent Board Member Dunne conceded that Petitioner’s \"continuing association” with this friend constituted an appropriate adverse factor. See Admin.Rec. at 14 (Dunne, concurring in part and dissenting in part). .Petitioner testified initially that, prior to his arrest, his friend told him that he had drugs for sale. See Admin.Rec. at 112-13. Later, however, Petitioner changed his story (without confessing error as to his earlier testimony), and maintained that he found out that his friend was involved with drugs only after the arrest. See id. at 137-38. . The IJ conceded that Petitioner, when questioned concerning his misrepresentation, maintained that he merely was ashamed of his military service, see Admin.Rec. at 48, but concluded that \"this d[oes] not constitute a timely recantation.” Id. It is clear that the IJ in this latter passage was referring to his earlier conclusion that Petitioner \"testified unequivocally that he had never served in the military until he realized that the trial attorney” possessed a record of his service. Id. at 47 (emphasis added). Accordingly, we conclude that this particular finding formed the basis of the IJ's conclusion that Petitioner gave false testimony \"for the purpose of obtaining a benefit under the Immigration and Nationality Act.” Id. at 48. . We have held previously that, when the BIA makes a demeanor finding that the U did not embrace, that finding must have specific support in the administrative record. See Martinez-Sanchez v. INS, 794 F.2d 1396, 1400 (9th Cir.1986) (rejecting the BIA's determination that the petitioner was not credible \"on the basis of his demeanor” because “[t]he record indicate[d] nothing about petitioner’s demeanor\"). . Moreover, the IJ's factual findings, even when based on demeanor evidence, are not conclusive on the Board. See, e.g., Laipenieks," }, { "docid": "23284933", "title": "", "text": "as her friend in the municipal city hall. Id. Korablina’s daughter also credibly testified that “telling the authorities was use less,” which was why neither she nor her father reported the violent anti-Semitic attacks that they had suffered. Id. at 1042-43. Furthermore, Korablina offered “articles detailing the authorities’ unresponsiveness to complaints made by Jewish victims in Kiev.” Id. at 1043. We determined that the credible testimony and corroborating articles were enough to establish that the government was unable and unwilling to control the private acts of violence, and noted that “[c]onspicuous by its absence [was] any authoritative evidence from the government disputing the thrust of her evidence and of the government’s complicity.” Id. at 1045. In Reyes-Reyes v. Ashcroft, 384 F.3d 782 (9th Cir. 2004), we first expressly suggested that a per se reporting requirement was untenable. Id. at 789 & n.3. In Reyes-Reyes, we considered the past persecution of an El Salvadoran “homosexual male with a female sexual identity” who had been beaten and raped at age thirteen because of his sexual orientation and identity. Id. at 785. Though we “deeline[d] to reach” Reyes’s argument that the IJ had incorrectly imposed a per se reporting requirement, we nevertheless stated that such a bright-line rule “would indeed be troubling, especially in light of evidence in the record that rape victims in El Salvador regularly underreport such crimes due to the poor response of the authorities,” as well as circuit precedent documenting physical attacks against homosexuals by national police in Latin America. Id. at 789 & n.3. Two years later, we squarely held: [A]n applicant who seeks to establish eligibility for withholding of removal under section 1231(b)(3) on the basis of past persecution at the hands of private parties the government is unwilling or unable to control need not have reported that persecution to the authorities if he can convincingly establish that doing so would have been futile or have subjected him to further abuse. Ornelas-Chavez v. Gonzales, 458 F.3d 1052, 1058 (9th Cir. 2006). We thus “ma[d]e explicit” what may have been only implicit in Korablina, Reyes-Reyes, and In re" }, { "docid": "4034335", "title": "", "text": "the best position to assess the trustworthiness of the applicant’s testimony. See Mendoza Manimbao v. Ashcroft, 329 F.3d 655, 661-62 (9th Cir.2003).- Where, as here, the BIA summarily affirms an IJ’s decision and does not expressly conduct a de novo review we may “look to the IJ’s oral decision as a guide to what lay behind the BIA’s conclusion.” Ahmed v. Keisler, 504 F.3d 1183, 1191 (9th Cir.2007). DISCUSSION A. The Lack of Detail in Bassene’s Mistakenly Filed N400 Citizenship Application Does Not Support the BIA’s Adverse Credibility Finding The IJ and BIA drew an adverse inference from the omission of Bassene’s arrest and detention by the Senegalese military from his N-400 citizenship application. However, the N-400 citizenship application was not designed to elicit information about persecution. “[T]he IJ had no reason to ‘expect’ to be told of ‘persecution and assaults’ on [Bassene or his] family” in Bassene’s mistakenly filed N-400 citizenship application. Joseph v. Holder, 600 F.3d 1235, 1242413 (9th Cir.2010) (internal quotation marks omitted) (reversing adverse credibility finding that relied on differences between bond hearing testimony and removal hearing testimony). In short, the IJ concluded that Bassene was not credible because he did not include evidence of political and ethnic persecution in his N-400 citizenship application, information that would have been relevant had he filed an 1-589 application for asylum. That Bassene filed an initial N-400 citizenship application that “was not as complete as might be desired” of an 1-589 asylum application “cannot, without more, serve as a basis for a finding of lack of credibility.” Smolniakova v. Gonzales, 422 F.3d 1037, 1045 (9th Cir.2005) (quoting Lopez-Reyes v. INS, 79 F.3d 908, 911 (9th Cir.1996)) (internal quotation marks omitted). Bassene provided information on the ethnic and political persecution he experienced in Senegal in the 1-589 asylum application that he was later instructed to file. Moreover, the IJ speculated that because Bassene was an educated person, he should have known to mention his arrest and detention by the Senegalese military in his mistakenly filed N-400 citizenship application. But “[speculation and conjecture cannot form the basis of an adverse credibility" }, { "docid": "22070875", "title": "", "text": "refused to pay. When Reyes reported the incident, the police came to the store, verified the facts, checked for fingerprints, and collected MRTA leaflets the assailants had left behind. The police never apprehended anyone, however. Later that same week, two people followed Reyes’s son, Carlos, as he left school. Concerned that he would be kid-naped, Carlos evaded his followers by fleeing to a nearby police car. A person identifying himself as an MRTA member called the next day and told Reyes “that his son had escaped this time, but [that] no one was free from [the MRTA].” Soon thereafter, Reyes closed his business and came to the United States. The IJ found Reyes’s testimony credible. She denied his requests for asylum and for withholding of removal under the INA, but granted him withholding of removal under the CAT. In the IJ’s view, Reyes had proven, as required by 8 C.F.R. § 208.16(c)(2), that it was “more likely than not that he ... would be tortured if removed to” Peru, because (1) Reyes had suffered harm at the hands of the MRTA before arriving in the United States; (2) the police had not responded sufficiently to the MRTA’s actions against him; (3) recent State Department reports showed that the Peruvian government had not fully “decimated” the MRTA, as reports in earlier years had suggested; (4) no particular area of Peru appeared free from the risk of MRTA activity; (5) Reyes “ha[d] heard of the terrorists tracking people to other areas” of the country; and (6) Reyes testified that after he arrived in the United States, terrorists killed a fellow shopkeeper in Peru. The INS appealed the IJ’s order, and the BIA sustained the appeal. The BIA implicitly assumed, for the sake of rendering its judgment, that Reyes proved he would suffer harm if removed to Peru. The alleged harm did not amount to “torture” in the Board’s view, however. As the Board recognized, to constitute “torture” under the CAT, the harm the petitioner alleges must be “inflicted by or at the instigation of or with the consent or acquiescence of a" }, { "docid": "22388913", "title": "", "text": "the police, and resulted in his being arrested, booked, tortured, and later pursued by the police. The fragments of the affidavit that the IJ used to impeach Akinmade’s credibility involve grammatical problems that do not constitute a valid basis for a credibility determination. See Osorio, 99 F.3d at 932. Second, the IJ erroneously faulted AMn-made for not providing further details about the location and manner of his arrest and his mistreatment by the police. The IJ’s concern for more specific information does not constitute a valid ground for denying AMnmade’s claim, especially when Akinmade was not given notice that he should provide such information, nor asked at the hearing to do so, either by the IJ or by counsel for the INS. AMnmade’s account is sufficiently descriptive of the pertinent events. The remainder of the IJ’s analysis is based on speculation and conjecture about the petitioner’s account. Some of the IJ’s reasons are even inconsistent with one another (e.g., speculating that the petitioner’s father, as a member of the middle class, had influence in the military government and could therefore protect him; and speculating that the petitioner would not risk student activism because his father was a civil servant dependent on the government). The other concerns identified by the IJ (such as whether Akinmade’s girlfriend could have had possession of his passport) do not raise substantial reasons or serious enough doubts for an adverse credibility determination. See, e.g., Lopez-Reyes, 79 F.3d at 912 (reversing implausibility determination because the IJ “did not set forth a ‘specific cogent reason’ for his astonishment”). Even if the alleged inconsistencies noted by the BIA existed, they would be insufficient collectively or otherwise to warrant an adverse credibility finding. C. Persecution on Account of Political Opinion We conclude that the BIA’s credibility determination rested on insufficient and impermissible grounds. As in other similar cases, under these circumstances, we deem the petitioner’s testimony credible. See Aguilera-Cota, 914 F.2d at 1383; Damaize-Job, 787 F.2d at 1338. The BIA did not suggest reasons, other than credibility concerns, for denying petitioner’s request for asylum and withholding of deportation. Once found" }, { "docid": "22253956", "title": "", "text": "rejected all of Petitioner’s arguments and dismissed her appeal. On appeal to the BIA, Petitioner first objected to the IJ’s adverse credibility determination. The BIA reviewed the IJ’s decision for clear error and affirmed the IJ’s adverse credibility finding and the denial of Petitioner’s application. Consequently, the BIA dismissed Petitioner’s appeal in an order summarizing the IJ’s oral ruling. In addition, Petitioner argued that the IJ deprived her of a full and fair hearing by failing to act as a neutral fact-finder. Specifically, Petitioner asserted that the IJ demonstrated impermissible moral judgment through her commentary on the relationship between Petitioner and her roommate, Mr. Im. Petitioner also argued that the IJ conducted “aggressive” questioning that “interrupted the hearing.” The BIA rejected these arguments. The BIA further determined that, even to the extent that the IJ made improper or unnecessary comments during the hearing, these comments did not reflect impropriety. Rather, these comments represented the IJ’s efforts to ascertain the nature of Petitioner’s relationship with each witness, and thereby assess each witness’s credibility. For these reasons, the BIA concluded that the hearing was fundamentally fair. II. STANDARD OF REVIEW “Where, as here, the BIA adopts the IJ’s decision while adding some of its own reasoning, we review both decisions.” Lopez-Cardona v. Holder, 662 F.3d 1110, 1111 (9th Cir.2011). We review the BIA’s factual findings, including adverse credibility determinations, for substantial evidence. Salaam v. INS, 229 F.3d 1234, 1237-38 (9th Cir.2000). This standard of review is “extremely deferential: ‘administrative findings of fact are conclusive unless any reasonable adjudicator would be compelled to conclude to the contrary.’ ” Farah v. Ashcroft, 348 F.3d 1153, 1156 (9th Cir.2003) (quoting 8 U.S.C. § 1252(b)(4)(A)-(B)). “Thus, when a petitioner contends that the IJ’s findings are erroneous, the petitioner ‘must establish that the evidence not only supports that conclusion, but compels it.’” Id. (quoting Singh v. INS, 134 F.3d 962, 966 (9th Cir.1998)). We review the BIA’s determination of purely legal questions de novo. Hamazaspyan v. Holder, 590 F.3d 744, 747 (9th Cir.2009). Claims of due process violations in immigration proceedings are also reviewed de novo. Lopez-Urenda" }, { "docid": "23171230", "title": "", "text": "had failed to establish past persecution for the purposes of withholding of removal under 8 U.S.C. § 1231(b). The judge did not make an adverse credibility finding. Sometime later, Reyes obtained pro bono representation and filed an appeal with the Board of Immigration Appeals (BIA), attaching to his brief numerous excerpts from human rights organizations, government and news sources detailing El Salvador’s hostile political and cultural climate towards male homosexuals with female identity. Reyes also filed a motion to remand, attaching several pieces of new evidence, including the affidavit of an expert on Latin American culture. In a one-judge order, the BIA summarily affirmed the IJ’s decision pursuant to 8 C.F.R. § 1003.1(e)(4), and denied Reyes’s motion to remand. Reyes now petitions for review of the BIA’s decision. Discussion This case presents a series of discrete legal issues. Although the parties argue at length over inclusion in the record of evidence of El Salvador’s country conditions and political climate and the merits of Reyes’s claim, we need not address these disputes because our resolution of the justiciable issues rests on the ground that the BIA employed an erroneous legal standard in evaluating Reyes’s application. The slight quirk presented by our review of the BIA’s bare affirmance without opinion of the IJ’s decision requires us to apply the well-known “simple but fundamental rule of administrative law”: We “must judge the propriety of such action solely by the grounds invoked by the agency.” Securities & Exchange Comm’n v. Chnery Corp., 332 U.S. 194, 196, 67 S.Ct. 1575, 91 L.Ed. 1995 (1947). Thus, although the agency’s summary affirmance under 8 C.F.R. § 1003.1(e)(4) “only means that the BIA deemed any errors by the IJ to be harmless,” Falcon Carriche v. Ashcroft, 335 F.3d 1009, 1013 (9th Cir.2003) (describing the analogous process pursuant to 8 C.F.R. § 1003.1(a)(7)), as a practical matter, we may review only the reasoning presented by the IJ. See Chenery, 332 U.S. at 196, 67 S.Ct. 1575 (“[T]he court is powerless to affirm the administrative action by substituting what it considers to be a more adequate or proper basis.”). In" }, { "docid": "12425144", "title": "", "text": "(faulting an IJ for failing to “attempt to ascertain whether [the discrepancies] could be accounted for”). We further have noted that the failure to mention, in an asylum application, certain details that later appear in live testimony does not render an alien’s testimony per se incredible. Capric v. Ashcroft, 355 F.3d 1075, 1090 (7th Cir.2004) (citing Lopez-Reyes v. INS, 79 F.3d 908, 911 (9th Cir.1996)). We repeatedly have stated, however, that when an IJ’s adverse credibility determination is based on inconsistencies between an alien’s earlier statements and his testimony at his hearing that go to the heart of his claim, that are substantive and that are not easily explained or superficial, we shall uphold the adverse determination. The discrepancies in this case concern the most serious allegations of persecution, and, indeed, relate to one of only two events Mr. Tarraf described in which he personally was targeted. Mr. Tarrafs in-court testimony was that he was taken from his friend’s home, detained, severely beaten, tortured and interrogated for a period of thirty days before he finally relented to his captors’ demands that he join Hezbollah. His asylum application, by contrast, had stated that he was taken from his parents’ home and detained and questioned for three days; he had made no mention of any physical violence or torture in his asylum application. The BIA found that the changed accounts constituted an attempt by Mr. Tar-raf to “embellish” his claim. A.R. at 2. The record, considered in whole, does not compel a contrary conclusion. The changed account substantially alters the length and severity of the critical incident that Mr. Tarraf says precipitated his final journey to the United States. In addition, although not mentioned by the IJ in his decision, a letter submitted along with the asylum application from Mr. Tarrafs brother states, “they found you and put you in the prison 3 dey [sic] until you agreed to work with them. At last you escaped to America....” A.R. at 166-67. To the extent that the letter corroborates any part of Mr. Tarrafs claim, it supports the version of events the IJ" }, { "docid": "22388912", "title": "", "text": "and credible testimony may be sufficient.... Furthermore, his act of abandoning his studies and fleeing [his country of origin] corroborates his testimony.”) (citations omitted); Lopez-Reyes, 79 F.3d at 912; Bolanos-Hernandez v. INS, 767 F.2d 1277, 1285 (9th Cir.1984). We reaffirm that rule. Second, we conclude that the petitioner’s account was more than adequately corroborated by the general descriptions of the political situation in Nigeria contained in the U.S. Department of State Report and Amnesty International publications. The BIA also expressly adopted the IJ’s other observations on the petitioner’s lack of credibility. The IJ’s conclusions, however, are not based on substantial evidence or valid explanations. First, the IJ erroneously concluded that Akinmade made inconsistent statements regarding the number of demonstrations in which he participated and the date of his confrontation with the police. The IJ misread or misunderstood Akinmade’s affidavit. The affidavit clearly indicates, consistent with the petitioner’s testimony, that he participated only in the demonstrations that occurred on March 28, 1995. On that day, his involvement in the demonstrations brought him into direct confrontation with the police, and resulted in his being arrested, booked, tortured, and later pursued by the police. The fragments of the affidavit that the IJ used to impeach Akinmade’s credibility involve grammatical problems that do not constitute a valid basis for a credibility determination. See Osorio, 99 F.3d at 932. Second, the IJ erroneously faulted AMn-made for not providing further details about the location and manner of his arrest and his mistreatment by the police. The IJ’s concern for more specific information does not constitute a valid ground for denying AMnmade’s claim, especially when Akinmade was not given notice that he should provide such information, nor asked at the hearing to do so, either by the IJ or by counsel for the INS. AMnmade’s account is sufficiently descriptive of the pertinent events. The remainder of the IJ’s analysis is based on speculation and conjecture about the petitioner’s account. Some of the IJ’s reasons are even inconsistent with one another (e.g., speculating that the petitioner’s father, as a member of the middle class, had influence in the" }, { "docid": "22649412", "title": "", "text": "one occasion a group of people stopped him on his way home from work and demanded money. On the second occasion, a group of people hijacked the bus in which he was riding and robbed the passengers. He testified that he was unaware of the identities of these people, but believed they were either guerillas or “private muggers.” When asked by the IJ to explain why his first application did not mention the problems associated with his union activities, de Leon testified “they don’t seem to relate to this case.” He testified that the person who helped him complete his first asylum application did not “really concentrate on the case.” The IJ denied the petitioners’ requests for asylum and withholding of deportation, but granted them voluntary départure. The BIA dismissed the petitioners’ appeal. The petitioners now seek review before this court. DISCUSSION A. Political Asylum To qualify for asylum, de Leon must demonstrate that he is unwilling to return to Guatemala because he suffered past persecution or has a “ “well-founded fear of [future] persecution on account of ... political opinion.’ ” Acewicz v. INS, 984 F.2d 1056, 1061 (9th Cir.1993) (quoting 8 U.S.C. § 1101(a)(42)(A)). To establish a well-founded fear of persecution, de Leon must show that his fear is “subjectively genuine and objectively reasonable.” Fisher v. INS, 79 F.3d 955, 960 (9th Cir.1996). “An asylum applicant’s candid, credible, and sincere testimony demonstrating a genuine fear of persecution satisfies the subjective component of the well-founded fear standard.” Berroteran-Melendez v. INS, 955 F.2d 1251, 1256 (9th Cir.1992) (internal quotations and citation omitted). The IJ and BIA denied relief because they found de Leon to be not credible. We review the IJ’s and BIA’s credibility findings for substantial evidence and, thus, must uphold the findings “unless the evidence presented compels a reasonable fact-finder to reach a contrary result.” Lopez-Reyes v. INS, 79 F.3d 908, 911 (9th Cir.1996). Although we give “substantial deference” to credibility findings, such a finding “must be supported by a specific, cogent reason....” Berroteran-Melendez, 955 F.2d at 1256 (internal quotations and citation omitted). An initial issue presented is" }, { "docid": "12425143", "title": "", "text": "543, 553 (7th Cir.2006) (noting that an adverse credibility determination cannot be reversed simply because this court would conclude that a positive credibility finding was supported by substantial evidence). Nevertheless, this court also has stated that it will not hesitate to overturn an adverse credibility determination when the IJ fails to give specific, cogent reasons that bear a legitimate nexus to the finding. Ayi v. Gonzales, 460 F.3d 876, 880 (7th Cir.2006). We thus have reversed when the discrepancies were minor, Adekpe v. Gonzales, 480 F.3d 525, 530-31 (7th Cir.2007), when they concerned irrelevant details in light of the alien’s broader claim of persecution, see Kllokoqi, 439 F.3d at 341-42 (reversing the credibility determination where “the number of traumatic and tragic events that have happened to” the alien made his lack of memory on the name of a high school he attended a decade earlier insufficient to support the finding), or when the IJ failed to consider the alien’s reasonable explanations offered for a discrepancy, see Shtaro v. Gonzales, 435 F.3d 711, 716-17 (7th Cir.2006) (faulting an IJ for failing to “attempt to ascertain whether [the discrepancies] could be accounted for”). We further have noted that the failure to mention, in an asylum application, certain details that later appear in live testimony does not render an alien’s testimony per se incredible. Capric v. Ashcroft, 355 F.3d 1075, 1090 (7th Cir.2004) (citing Lopez-Reyes v. INS, 79 F.3d 908, 911 (9th Cir.1996)). We repeatedly have stated, however, that when an IJ’s adverse credibility determination is based on inconsistencies between an alien’s earlier statements and his testimony at his hearing that go to the heart of his claim, that are substantive and that are not easily explained or superficial, we shall uphold the adverse determination. The discrepancies in this case concern the most serious allegations of persecution, and, indeed, relate to one of only two events Mr. Tarraf described in which he personally was targeted. Mr. Tarrafs in-court testimony was that he was taken from his friend’s home, detained, severely beaten, tortured and interrogated for a period of thirty days before he finally" }, { "docid": "22429551", "title": "", "text": "BIA denied the motion, concluding that the IJ had made an explicit credibility finding and that the record was sufficient. The BIA’s 2003 adoption of the IJ’s adverse credibility finding, therefore, remains the Board’s final decision on Liu’s credibility. The BIA also affirmed the IJ’s frivolousness finding after concluding that the four procedural requirements set forth in In re Y-L- had been satisfied. First, there was no dispute that Liu was given proper notice at the outset of the hearing of the consequences of filing a frivolous asylum application. Second, the BIA found the IJ had separately analyzed and made findings regarding deliberate fabrication. Third, the BIA discussed specific grounds it identified as supporting the frivolousness finding by a preponderance of the evidence. The BIA noted the absence of any reference to Falun Gong in Liu’s airport interview and concluded that her explanation that she was afraid and confused was inadequate. It also cited the inconsistent dates given for Liu’s uncle’s arrest and Liu’s shifting account of the time frame during which she practiced Falun Gong, concluding these inconsistencies supported a finding of knowing fabrication. Finally, the BIA found that Liu was given adequate opportunities to address these grounds. The BIA thus affirmed its previous frivolousness finding. The present petition challenges both this finding and the earlier denial of Liu’s asylum and withholding of removal claims. We have jurisdiction under 8 U.S.C. § 1252(a)(1). STANDARD OF REVIEW “When the BIA conducts its own review of the evidence and law rather than adopting the IJ’s decision, our review ‘is limited to the BIA’s decision, except to the extent that the IJ’s opinion is expressly adopted.’” Shrestha v. Holder, 590 F.3d 1034, 1039 (9th Cir.2010) (quoting Hosseini v. Gonzales, 471 F.3d 953, 957 (9th Cir. 2006)). Because Liu’s application for relief was filed before May 11, 2005, pre-REAL ID Act standards apply. See Kaur v. Gonzales, 418 F.3d 1061, 1064 n. 1 (9th Cir.2005). We review credibility findings for substantial evidence. See Lopez-Reyes v. INS, 79 F.3d 908, 911 (9th Cir.1996). Whether the IJ complied with the BIA’s four procedural requirements for" }, { "docid": "23171229", "title": "", "text": "appeared pro se before an IJ, conceded removability, and applied for asylum, relief under the CAT, and withholding of removal. At the hearing, Reyes explained his fears about returning to El Salvador and related the story of his kidnaping and rape and explained his fears that if he returns to El Salvador, he will be discriminated against, abused, raped, or possibly even killed because of his appearance and sexual orientation. The IJ questioned Reyes repeatedly about why he failed to report the crimes and whether “anyone in the Government or acting on behalf of the Government of El Salvador [would] want to torture you.” At the conclusion of the proceedings, the judge denied Reyes’s applications for withholding and CAT relief on the merits, and denied his asylum petition as untimely filed. In an oral decision, the IJ explained that Reyes had failed to satisfy the requirements of the law because he “has failed to state that anyone in the government or acting on behalf of the government tortured him.” The IJ also ruled that Reyes had failed to establish past persecution for the purposes of withholding of removal under 8 U.S.C. § 1231(b). The judge did not make an adverse credibility finding. Sometime later, Reyes obtained pro bono representation and filed an appeal with the Board of Immigration Appeals (BIA), attaching to his brief numerous excerpts from human rights organizations, government and news sources detailing El Salvador’s hostile political and cultural climate towards male homosexuals with female identity. Reyes also filed a motion to remand, attaching several pieces of new evidence, including the affidavit of an expert on Latin American culture. In a one-judge order, the BIA summarily affirmed the IJ’s decision pursuant to 8 C.F.R. § 1003.1(e)(4), and denied Reyes’s motion to remand. Reyes now petitions for review of the BIA’s decision. Discussion This case presents a series of discrete legal issues. Although the parties argue at length over inclusion in the record of evidence of El Salvador’s country conditions and political climate and the merits of Reyes’s claim, we need not address these disputes because our resolution of" }, { "docid": "9283597", "title": "", "text": "Laws ch. 265 § 13A. In 1997, he pleaded guilty to buying or receiving a stolen motor vehicle, in violation of Mass. Gen. Laws ch. 266 § 28. In 2007, the Department of Homeland Security initiated removal proceedings against Reyes, charging that Reyes was present in the United States without being admitted or inspected. Reyes conceded that he was removable and applied for special rule cancellation of removal under the Nicaraguan Adjustment and Central American Relief Act of 1997 (\"NACARA\"), which provides the Attorney General discretion to cancel removal if certain conditions are met. 8 C.F.R. § 1240.66(b). At a hearing before the Immigration Judge (\"IJ\"), Reyes testified that returning to El Salvador would create a hardship because he had negative memories from El Salvador's civil war, he would not be able to find employment there, he financially supported his three United States citizen children, and he provided care to his mother, who lives in the United States. The IJ, for multiple separate reasons, denied Reyes's application and ordered him removed. First, the IJ determined that Reyes's 1997 conviction for receiving a stolen vehicle was a crime involving moral turpitude and, as a result, applied the heightened standard that Reyes must show his removal would result in \"exceptional and extremely unusual\" hardship. The IJ found that Reyes did not satisfy that standard because the hardship Reyes had identified was not \"substantially different from, or beyond, that which would normally be expected from the deportation of an alien with close family members here.\" Second, the IJ determined that Reyes had failed to show that he had been of good moral character during his time in the United States. Third, and independently, the IJ denied Reyes's motion as a matter of discretion because Reyes had been arraigned on twenty-six criminal charges during his time in the United States. The IJ stated that \"[s]uch a criminal record is sufficient to ... determine that [Reyes] would not warrant a favorable exercise of discretion.\" The BIA affirmed on October 9, 2012. It agreed with the IJ that Reyes had failed to show that his removal" }, { "docid": "16180406", "title": "", "text": "is a danger to the government, it appears that this secret police could have easily killed him with a firearm or other type of weapon. The IJ also found it suspicious that the only two letters Mr. Gui provided — one from his mother detailing her detention and the search of the home she shared with Mr. Gui and one from his surgeon friend — both arrived in the spring of 1996 when Mr. Gui’s deportation hearing was first scheduled. Finally, the IJ found it implausible that someone considered a dissident would have been permitted a state-funded education and lucrative employment as a surgeon. The IJ took particular note of Mr. Gui’s wealth: “The Respondent stated that he owned two homes and a car in Romania. From his testimony this appears to be an individual who is in the upper level of the socioeconomic strata in Romania. If the government wanted to persecute him, it would appear that they could have easily confiscated his property if they are the tyrannical government that he states.” BIA Decision and Order In its decision denying asylum and withholding of deportation, the BIA summarized the grounds upon which the IJ had based his credibility determination and stated that, “[ajfter a thorough review of the record, we agree that the respondent’s asylum claim is implausible and does not support a grant of asylum.” Concluding that Mr. Gui lacked credible testimony, the Board concluded that he had failed to establish his eligibility for asylum or withholding of deportation. In making its determination, the BIA noted that, because of a 1996 change in government and independent of the credibility determination, “[t]he evidence of record establishes that country conditions have changed to such an extent that any fear the respondent may have had of returning because of his prior anti-government activities should be significantly diminished.” DISCUSSION Credibility Determination We review an adverse credibility-finding under the substantial evidence standard. Yi Quan Chen v. INS, 266 F.3d 1094, 1098 (9th Cir.2001). Where the BIA incorporates the IJ’s decision, we review the IJ’s decision. Lopez-Reyes v. INS, 79 F.3d 908, 911" }, { "docid": "22070883", "title": "", "text": "In addition to hearing Reyes’s testimony, the IJ admitted several documents into the record, including the 1997 State Department reports on country conditions and human rights in Peru. .In his testimony before the IJ, Reyes did not contend that the police identified the assailants or those who made the extortionate telephone calls but did nothing to apprehend them or otherwise deter their tortious conduct. . Reyes’s requests for asylum and withholding of deportation were patently meritless, which explains why he did not challenge the IJ’s rejection thereof before the BIA or in this appeal. . The IJ’s decision was made orally, transcribed, and then made part of the record. . Reyes has never claimed that the harm he would suffer in Peru would be \"inflicted by or at the instigation of\" the government; rather, his request for CAT relief depends upon a theory of government \"acquiescence.\" See 8 C.F.R. § 208.18(a)(1), (7) (defining \"torture” and \"acquiescence”). At oral argument, Reyes’s counsel argued that the BIA erred in holding that Reyes was required to show \"deliberate” or \"willful acceptance” of the MRTA's activities by the Peruvian government. In Reyes's view, the deliberate or willful acceptance standard is inconsistent with the FARRA and the CAT regulations. He bases this argument upon recent precedent from the Ninth Circuit. See Zheng v. Ashcroft, 332 F.3d 1186, 1188-89 (9th Cir.2003) (\"We conclude that the BIA's interpretation of acquiescence to require that government officials 'are willfully accepting' of torture to their citizens by a third party is contrary to clearly expressed congressional intent to require only 'awareness,' and not to require ‘actual knowledge' or 'willful[] acceptance]' in the definition of acquiescence.”). We need not address this question today. Reyes's CAT claim plainly fails under the definition of \"acquiescence” set forth in the regulations. See 8 C.F.R. § 208.18(a)(7). . Reyes contends that he proved that the Peruvian government would acquiesce in the harm he anticipates that he would suffer because, in 1991-92, the police were unable to apprehend the people who attacked him and his wife and bring an end to the MRTA’s extortion attempts and" } ]

[ { "docid": "17094660", "title": "", "text": "the existence of God are Buddhism, Taoism, Ethical Culture, Secular Humanism and others. See Washington Ethical Society v. District of Columbia, 101 U.S.App.D.C. 371, 249 F.2d 127; Fellowship of Humanity v. County of Alameda, 153 Cal.App.2d 673, 315 P.2d 394; II Encyclopaedia of the Social Sciences 293; 4 Encyclopaedia Britannica (1957 ed.) 325-327; 21 id., at 797; Archer, Faiths Men Live By (2d ed. revised by Purinton), 120-138, 254-313; 1961 World Almanac 695, 712; Year Book of American Churches for 1961, at 29, 47. This note, although dictum, represents a rejection of the view that religion may, consonant with first amendment values, be defined solely in terms of a Supreme Being. Buddhism and Taoism are, of course, recognized Eastern religions. The other two examples given by the Court refer to explicitly non-Theist organized groups, discussed in cases cited in the footnote, that were found to be religious for tax exemption purposes primarily because of their organizational similarity to traditional American church groups. “Ethical Culture” is a reference to the organization in Washington Ethical Society v. District of Columbia, 101 U.S.App.D.C. 371, 249 F.2d 127 (1957), which held regular Sunday services and espoused a group of defined moral precepts. Similarly, “Secular Humanism,” however broad the term may sound, appears to be no more than a reference to the group seeking an exemption in Fellowship of Humanity v. County of Alameda, 153 Cal.App.2d 673, 315 P.2d 394 (1957) which, although non-Theist in belief, also met weekly on Sundays and functioned much like a church. In any event, the Court was willing to concede that these groups, “and others,” were religious for constitutional purposes. The broad reading of “religion” in Torcaso was drawn upon in Founding Church of Scientology v. United States, 133 U.S.App.D.C. 229, 409 F.2d 1146, cert. denied, 396 U.S. 963, 90 S.Ct. 434, 24 L.Ed.2d 427 (1969). There, Scientology, a belief system providing a “general account of man and his nature comparable in scope, if not in content, to those of some organized religions,” was found to be a religion for purposes of the free exercise clause. Judge Wright was" } ]

[ { "docid": "2363016", "title": "", "text": "DUBINA, Circuit Judge: This appeal involves a challenge to an ordinance regulating the solicitation of funds by charitable organizations in the City of Clear-water, Florida (“Clearwater”). Plaintiff Church of Scientology Flag Service Organization, Inc. (“Scientology”) claims that the ordinance deprives it of rights and liberties guaranteed by the First and Fourteenth Amendments of the Constitution of the United States in violation of 42 U.S.C. § 1983. Scientology appeals the district court’s order granting summary judgment to the defendants (collectively “the City”) and denying summary judgment to Scientology. Church of Scientology Flag Servs. Org. v. City of Clearwater, 756 F.Supp. 1498 (M.D.Fla.1991). We affirm in part, vacate in part, reverse in part and remand. I. BACKGROUND Scientology, a worldwide organization, maintains one of the largest centers of its activities in Clearwater. The history, organization, doctrine and practices of Scientology have been thoroughly recounted in numerous judicial decisions. See, e.g., Hernandez v. Commissioner, 490 U.S. 680, 684-86, 109 S.Ct. 2136, 2141, 104 L.Ed.2d 766 (1989); Church of Scientology v. Commissioner, 823 F.2d 1310, 1313-14 (9th Cir.1987), cert. denied, 486 U.S. 1015, 108 S.Ct. 1752, 100 L.Ed.2d 214 (1988); Founding Church of Scientology v. United States, 409 F.2d 1146, 1151-52 (D.C.Cir.), cert. denied, 396 U.S. 963, 90 S.Ct. 434, 24 L.Ed.2d 427 (1969), and on remand, United States v. Article or Device Hubbard Electrometer, 333 F.Supp. 357 (D.D.C.1971); Christofferson v. Church of Scientology, 57 Or.App. 203, 644 P.2d 577, 580-81, pet’n denied 293 Or. 456, 650 P.2d 928 (1982), and cert. denied, 459 U.S. 1206, 103 S.Ct. 1196, 75 L.Ed.2d 439 (1983). We need not reiterate this background because the district court found that no genuine factual issues existed to dispute Scientology’s claim of being a bona fide religion. See 756 F.Supp. at 1502-04. The district court granted partial summary judgment to Scientology on that issue. Id. at 1532; accord Founding Church of Scientology, 409 F.2d at 1160; Christofferson, 644 P.2d at 600-01. As the City has neither appealed from that order nor argued that Scientology is not entitled to protection under the religion clauses of the First Amendment, we must assume that" }, { "docid": "1721115", "title": "", "text": "all counts on which imprisonment has been imposed. Here, the district court found that Meyers had a history of failing to appear and that he posed a significant flight risk. We conclude that the district court’s findings are amply supported by the record and that Meyers has failed to establish that he has satisfied the criteria required for release stated in § 3143(b). Therefore, the district court’s denial of bail pending appeal is affirmed. AFFIRMED. . The district court denied Meyers’ motion before trial at the hearing on October 2, 1995. (ROA, Vol. III at 68-70). However, the district court's written Order was filed on November 14, 1995. United States v. Meyers, 906 F.Supp. 1494 (D. Wyo.1995) . The district court \"gleaned” many of these factors from the following cases: Africa v. Commonwealth of Pa., 662 F.2d 1025 (3rd Cir.1981), cert. denied, 456 U.S. 908, 102 S.Ct. 1756, 72 L.Ed.2d 165 (1982); Malnak v. Yogi, 592 F.2d 197 (3rd Cir.1979); United States v. Sun Myung Moon, 718 F.2d 1210 (2nd Cir.1983), cert. denied, 466 U.S. 971, 104 S.Ct. 2344, 80 L.Ed.2d 818 (1984); Founding Church of Scientology of Washington, D.C. v. United States, 409 F.2d 1146 (D.C.Cir.), cert. denied, 396 U.S. 963, 90 S.Ct. 434, 24 L.Ed.2d 427 (1969); Washington Ethical Soc'y v. District of Columbia, 249 F.2d 127 (D.C.Cir.1957); United States v. Kauten, 133 F.2d 703 (2nd Cir.1943); Sherr v. Northport-East Northport Union Free Sch. Dist., 672 F.Supp. 81 (E.D.N.Y.1987); Jacques v. Hilton, 569 F.Supp. 730 (D.NJ.1983), aff'd, 738 F.2d 422 (3rd Cir.1984); Church of the Chosen People v. United States, 548 F.Supp. 1247 (D.Minn.1982); Womens Services, P.C. v. Thone, 483 F.Supp. 1022 (D.Neb.1979), aff'd, 636 F.2d 206 (8th Cir.1980), vacated, 452 U.S. 911, 101 S.Ct. 3043, 69 L.Ed.2d 414 (1981); Stevens v. Berger, 428 F.Supp. 896 (E.D.N.Y.1977); Remmers v. Brewer, 361 F.Supp. 537 (S.D.Iowa 1973), aff'd, 494 F.2d 1277, cert. denied, 419 U.S. 1012, 95 S.Ct. 332, 42 L.Ed.2d 286 (1974); United States v. Kuch, 288 F.Supp. 439 (D.D.C.1968); Fellowship of Humanity v. Alameda County, 153 Cal.App.2d 673, 315 P.2d 394 (1957). . The government asserts that Meyers" }, { "docid": "1950091", "title": "", "text": "criminal context. See United States v. Gordon, 493 F.Supp. 808, 813 (N.D.N.Y. 1980), aff'd, 655 F.2d 478 (2d Cir.1981). Although the requirements of “probable cause and specificity do not apply strictly where an administrative or civil order of seizure is issued by a court,” id., in issuing civil seizure orders, courts are guided by the principles of probable cause and particularity that underlie the notion of reasonableness in the context of searches and seizures. See Founding Church of Scientology of Washington, D.C. v. United States, 409 F.2d 1146, 1150 (D.C.Cir.), cert. denied, 396 U.S. 963, 90 S.Ct. 434, 24 L.Ed.2d 427 (1969); Laprease v. Raymours Furniture Co., 315 F.Supp. 716, 721-22 (N.D.N.Y.1970). Fourth Amendment principles guide a court in issuing a seizure order directing the United States Marshal to impound allegedly infringing articles under the Copyright Act. See Warner Bros, 677 F.Supp. 740, 765 (S.D.N.Y.1988); Bally Midway Mfg., supra; Jondora Music Publishing Co. v. Melody Recordings, Inc., 362 F.Supp. 494, 499-500 (D.N.J.1973); see also 3 Nimmer on Copyrights § 14.07, at 14-100-01; Owens, supra at 239-43. In the present case, plaintiffs’ applications are deficient on Fourth Amendment grounds in at least one respect. The plaintiffs’ proposed seizure order does not specify with particularity the premises to be searched or the articles to be seized. See generally 3 LaFave, Wayne R., Search and Seizure: A Treatise on the Fourth Amendment § 10.2(f), at 660-64 (2d ed.1987). The particularity requirement “ensures that the search will be carefully tailored to its justifications and will not take on the character of the wide-ranging exploratory searches the Framers intended to prohibit.” Maryland v. Garrison, 480 U.S. 79, 84, 107 S.Ct. 1013, 1016, 94 L.Ed.2d 72 (1987); see also Coolidge v. New Hampshire, 403 U.S. 443, 467, 91 S.Ct. 2022, 2038, 29 L.Ed.2d 564 (1971); United States v. Buck, 813 F.2d 588, 590 (2d Cir.), cert. denied, 484 U.S. 857, 108 S.Ct. 167, 98 L.Ed.2d 121 (1987). Thus, the scope of a lawful search must be delineated by the object of the search and the places in which there has been a showing that the object" }, { "docid": "2363132", "title": "", "text": "times as proper matters for prohibitory legislation,\" 133 U.S. at 343, 10 S.Ct. at 301, 33 L.Ed. at 640, we regard it as no longer controlling. Neither Davis nor Reynolds presented issues of Establishment Clause concern, as those concerns are understood in contemporary decisions like Lemon. . Prince v. Massachusetts, 321 U.S. 158, 64 S.Ct. 438, 88 L.Ed. 645 (1944); United States v. Lee, 455 U.S. 252, 257-58, 102 S.Ct. 1051, 1055, 71 L.Ed.2d 127 (1982); United States v. Sun Myung Moon, 718 F.2d 1210, 1227 (2d Cir.1983), cert. denied, 466 U.S. 971, 104 S.Ct. 2344, 80 L.Ed.2d 818 (1984). . Grosz v. City of Miami Beach, 721 F.2d 729 (11th Cir.1983), cert. denied, 469 U.S. 827, 105 S.Ct. 108, 83 L.Ed.2d 52 (1984); Lakewood Congregation of Jehovah's Witnesses v. City of Lakewood, 699 F.2d 303, 303 & n. 1 (6th Cir.), cert. denied, 464 U.S. 815, 104 S.Ct. 72, 78 L.Ed.2d 85 (1983). .The bulk of the constitutional analysis in Bob Jones addressed the government’s compelling interest in preventing racial discrimination, which the Court held was served by a narrowly tailored regulation denying religious and charitable tax exemptions to discriminatory schools and colleges. This discussion applied the Free Exercise Clause. The Court also found the regulation permissible under Lemon's effects criterion of Establishment Clause analysis because it was \"founded on a neutral, secular basis.” 461 U.S. at 604 n. 30, 103 S.Ct. at 2035 n. 30 (quoting Gillette, 401 U.S. at 452, 91 S.Ct. at 837). Nothing in Bob Jones suggests a holding that regulations which are otherwise. impermissible under Lemon may be justified by showing their close fit to a compelling interest. . See also Brundage v. Deardorf, 92 F. 214, 228-30 (6th Cir.1899). . In addition, of course, \"[t]he freedom to hold religious beliefs and opinions is absolute.” Braunfeld v. Brown, 366 U.S. 599, 603, 81 S.Ct. 1144, 1146, 6 L.Ed.2d 563 (1961). .The exemption provided by Code § 100.02(1) for volunteer and small scale organizations is a denominational preference favoring such groups at the expense of larger denominations. Scientology has not challenged the exemption directly and" }, { "docid": "22378426", "title": "", "text": "S.Ct. 110, 107 L.Ed.2d 72 (1989); see also United States v. Leonelli, 428 F.Supp. 880, 882 (S.D.N.Y.1977). “Whether to grant a bill of particulars rests within the sound discretion of the district court.” United States v. Panza, 750 F.2d 1141, 1148 (2d Cir.1984) (citing United States v. Burgin, 621 F.2d 1352, 1358-59 (5th Cir.), cert. denied, 449 U.S. 1015, 101 S.Ct. 574, 66 L.Ed.2d 474 (1980)); see also Bortnovsky, 820 F.2d at 574. “Acquisition of evidentiary detail is not the function of the bill of particulars.” Hemphill v. United States, 392 F.2d 45, 49 (8th Cir.), cert. denied, 393 U.S. 877, 89 5.Ct. 176, 21 L.Ed.2d 149 (1968). “So long as the defendant was adequately informed of the charges against him and was not unfairly surprised at trial as a consequence of the denial of the bill of particulars, the trial court has not abused its discretion.” United States v. Maull, 806 F.2d 1340, 1345-46 (8th Cir.1986), cert. denied, 480 U.S. 907, 107 S.Ct. 1352, 94 L.Ed.2d 522 (1987). In view of the foregoing, it is clear that the district court acted well within its discretion in denying Cruz’ motion for a bill of particulars. G. Evidentiary Rulings. Flores, L. Rivera, Cruz and Coffie challenge various evidentiary rulings made by the district court. Before turning to the specific claims, we recognize “the long held view of this Circuit that the trial judge is in the best position to weigh competing interests in deciding whether or not to admit certain evidence.” United States v. Moon, 718 F.2d 1210, 1232 (2d Cir.1983) (citing United States v. Birney, 686 F.2d 102, 106 (2d Cir.1982)), cert. denied, 466 U.S. 971, 104 S.Ct. 2344, 80 L.Ed.2d 818 (1984). “Absent an abuse of discretion, the decision of the trial judge to admit or reject evidence will not be overturned by an appellate court.” Moon, 718 F.2d at 1232. 1. Evidence That Guns Seized Had Previously Been Fired. L. Rivera claims that reversible error was committed when the district court admitted the testimony of a ballistics expert who testified that some of the guns seized from various" }, { "docid": "2363017", "title": "", "text": "denied, 486 U.S. 1015, 108 S.Ct. 1752, 100 L.Ed.2d 214 (1988); Founding Church of Scientology v. United States, 409 F.2d 1146, 1151-52 (D.C.Cir.), cert. denied, 396 U.S. 963, 90 S.Ct. 434, 24 L.Ed.2d 427 (1969), and on remand, United States v. Article or Device Hubbard Electrometer, 333 F.Supp. 357 (D.D.C.1971); Christofferson v. Church of Scientology, 57 Or.App. 203, 644 P.2d 577, 580-81, pet’n denied 293 Or. 456, 650 P.2d 928 (1982), and cert. denied, 459 U.S. 1206, 103 S.Ct. 1196, 75 L.Ed.2d 439 (1983). We need not reiterate this background because the district court found that no genuine factual issues existed to dispute Scientology’s claim of being a bona fide religion. See 756 F.Supp. at 1502-04. The district court granted partial summary judgment to Scientology on that issue. Id. at 1532; accord Founding Church of Scientology, 409 F.2d at 1160; Christofferson, 644 P.2d at 600-01. As the City has neither appealed from that order nor argued that Scientology is not entitled to protection under the religion clauses of the First Amendment, we must assume that the district court was correct. In addition, without deciding the question ourselves, we note that research has not uncovered any holdings that Scientology is not a religion for First Amendment purposes. But cf. Church of Scientology v. Commissioner, 823 F.2d at 1316-18 (upholding Tax Court determination that Church of Scientology was not entitled to religious tax exemption under 26 U.S.C. § 501(c)(3) for certain years because its revenues inured to the benefit of individuals and non-religious entities). II. PROCEDURAL HISTORY In 1983 the City enacted Ordinance No. 3091-83 (the “1983 Ordinance”). The 1983 Ordinance imposed substantial recordkeeping and disclosure requirements for all charities and religious organizations soliciting funds in Clearwater. Scientology filed an action in the district court seeking an injunction against its enforcement. That action was consolidated with a similar case brought by Americans United for Separation of Church and State, Inc. (“Americans United”). Before the district court could rule on the law’s validity, however, the City enacted Ordinance No. 3479-84 (the “1984 Ordinance”), repealing and modifying the 1983 Ordinance in part. Clearwater, Fla.," }, { "docid": "6403809", "title": "", "text": "may to the same extent anathematize one faith or establish another for the same purpose. The INS acknowledges, however, that in enforcing rules respecting the admission of aliens to this country it is exercising the sovereign’s delegated power to accomplish the sovereign’s purpose, and in this case the “exclusive and unequivocal purpose [of 8 U.S.C., Sections 1182(a)(14) and 1153(a)(6) ] ... is to protect workers in the United States ... from job competition or adverse effects on their wages or working conditions.” (Defendant’s Memorandum, p. 9). It is difficult to find in that legislative purpose any authority for the INS to establish “criteria” by which religions may be qualitatively appraised, particularly in light of the deference the Establishment and Free Exercise Clauses must be accorded when no issue of alienage is involved. See Larson v. Valente, - U.S. -, 102 S.Ct. 1673, 72 L.Ed.2d 33 (1982). INS officials, no more than judges, are equipped to be “... oracles of theological verity ...,” and it is unlikely that either Congress or the Founders ever intended for them “... to be declarants of religious orthodoxy.... ” even for aliens. Africa v. Commonwealth of Pennsylvania, 662 F.2d 1025, 1030 (3rd Cir. 1981). The Court concludes that when Congress permitted an alien’s status to turn upon religious considerations it intended that the INS do no more than to determine if the religion in question is bona fide. A more invidious use of the government’s power over aliens should require more explicit legislative direction. The task of distinguishing a religion from something else (e.g., a delusion, a personal credo, or a fraud) is a recurring and perplexing problem, and the outer limits of what is “religious” may be ultimately unascertainable. See Africa v. Commonwealth of Pennsylvania, supra; International Society for Krishna Consciousness, Inc. v. Barber, 650 F.2d 430, 438-441 (2d Cir. 1981); Founding Church of Scientology v. United States, 409 F.2d 1146 (D.C.Cir.), cert, denied, 396 U.S. 963, 90 S.Ct. 434, 24 L.Ed.2d 427 (1969); Malnak v. Yogi, 592 F.2d 197 (3rd Cir. 1979); United States v. Kuch, 288 F.Supp. 439 (D.D.C.1968); Washington Ethical Society" }, { "docid": "310079", "title": "", "text": "law, shall be construed to require the disclosure of standards used or to be used for the selection of returns for examination, or data used or to be used for determining such standards, if the Secretary determines that such disclosure will seriously impair assessment, collection, or enforcement under the internal revenue laws. 26 U.S.C. § 6103(b)(2) (1982). . See, e.g., H.R.Rep. No. 201, 97th Cong., 1st Sess. 238-39 (1981). . Exemption 3 of FOIA exempts from disclosure matters that are “specifically exempted from disclosure by statute (other than section 552(b) of this title), provided that such statute (A) requires that the matters be withheld from the public in such a manner as to leave no discretion on the issue, or (B) establishes particular criteria for withholding or refers to particular types of matters to be withheld.” 5 U.S.C. § 552(b)(3) (1982). . See, e.g., Church of Scientology of California v. IRS, 569 F.Supp. 1165, 1170 (D.D.C.1983); Green v. IRS, 556 F.Supp. 79, 83-84 (N.D.Ind. 1982) aff'd, 734 F.2d 18 (7th Cir.1984); Heinsohn v. IRS, 553 F.Supp. 791, 792 (E.D.Tenn. 1982); Watson v. IRS, 538 F.Supp. 817, 818 (S.D.Tex.1982); White v. IRS, 528 F.Supp. 119, 122 (N.D.Ohio 1981), aff’d, 707 F.2d 897 (6th Cir.1983); Hulsey v. IRS, 497 F.Supp. 617, 618 (N.D.Tex.1980); Anheuser-Busch, Inc. v. IRS, 493 F.Supp. 549, 550-51 (D.D.C.1980). . The District of Columbia Circuit has so far declined to intimate an opinion on Zale. Washington Post Co. v. United States Department of State, 685 F.2d 698, 703-04 n. 9 (D.C.Cir.1982), vacated, — U.S. —, 104 S.Ct. 418, 78 L.Ed.2d 355 (1983). . Although this court has not specifically addressed the Zale interpretation, we have held that section 6103 qualifies as an exemption 3 statute under FOIA. Willamette Inds. v. IRS, 689 F.2d 865, 867 (9th Cir.1982), cert. denied, 460 U.S. 1052, 103 S.Ct. 1500, 75 L.Ed.2d 931 (1983); Long v. IRS, 596 F.2d at 365. . See also Moody v. IRS, 654 F.2d 795, 797 n. 4 (D.C.Cir.1981); Breuhaus v. IRS, 609 F.2d 80 (2d Cir.1979); Chamberlain v. Kurtz, 589 F.2d 827 (5th Cir.), cert. denied, 444 U.S." }, { "docid": "1721116", "title": "", "text": "971, 104 S.Ct. 2344, 80 L.Ed.2d 818 (1984); Founding Church of Scientology of Washington, D.C. v. United States, 409 F.2d 1146 (D.C.Cir.), cert. denied, 396 U.S. 963, 90 S.Ct. 434, 24 L.Ed.2d 427 (1969); Washington Ethical Soc'y v. District of Columbia, 249 F.2d 127 (D.C.Cir.1957); United States v. Kauten, 133 F.2d 703 (2nd Cir.1943); Sherr v. Northport-East Northport Union Free Sch. Dist., 672 F.Supp. 81 (E.D.N.Y.1987); Jacques v. Hilton, 569 F.Supp. 730 (D.NJ.1983), aff'd, 738 F.2d 422 (3rd Cir.1984); Church of the Chosen People v. United States, 548 F.Supp. 1247 (D.Minn.1982); Womens Services, P.C. v. Thone, 483 F.Supp. 1022 (D.Neb.1979), aff'd, 636 F.2d 206 (8th Cir.1980), vacated, 452 U.S. 911, 101 S.Ct. 3043, 69 L.Ed.2d 414 (1981); Stevens v. Berger, 428 F.Supp. 896 (E.D.N.Y.1977); Remmers v. Brewer, 361 F.Supp. 537 (S.D.Iowa 1973), aff'd, 494 F.2d 1277, cert. denied, 419 U.S. 1012, 95 S.Ct. 332, 42 L.Ed.2d 286 (1974); United States v. Kuch, 288 F.Supp. 439 (D.D.C.1968); Fellowship of Humanity v. Alameda County, 153 Cal.App.2d 673, 315 P.2d 394 (1957). . The government asserts that Meyers was offered a conditional plea that wotdd have preserved his right to pursue any legal issues he wished under the RFRA. This would also supports our conclusion that the district court’s denial of a reduction in offense level for acceptance of responsibility was not error; however, we cannot find any evidence in the record to support the government’s assertion. . Under the measurement conversion table provided, one pound of marijuana equals 0.4536 kilograms. U.S.S.G. § 2D1.1 Application Note 10. . The district court was untimely because (1) it did not hold a detention hearing within five days of Meyers’ initial appearance in its court, see 18 U.S.C. § 3142(f), and (2) if Meyers’ motions for a pretrial release are construed as “appeals” of the Colorado magistrate judge’s denial of bond, the motions were not determined promptly as required by 18 U.S.C. § 3145(b). . Although the filing of a notice of appeal usually divest the district court of further jurisdiction, the initial determination of whether a convicted defendant is to be released pending appeal is" }, { "docid": "1721117", "title": "", "text": "was offered a conditional plea that wotdd have preserved his right to pursue any legal issues he wished under the RFRA. This would also supports our conclusion that the district court’s denial of a reduction in offense level for acceptance of responsibility was not error; however, we cannot find any evidence in the record to support the government’s assertion. . Under the measurement conversion table provided, one pound of marijuana equals 0.4536 kilograms. U.S.S.G. § 2D1.1 Application Note 10. . The district court was untimely because (1) it did not hold a detention hearing within five days of Meyers’ initial appearance in its court, see 18 U.S.C. § 3142(f), and (2) if Meyers’ motions for a pretrial release are construed as “appeals” of the Colorado magistrate judge’s denial of bond, the motions were not determined promptly as required by 18 U.S.C. § 3145(b). . Although the filing of a notice of appeal usually divest the district court of further jurisdiction, the initial determination of whether a convicted defendant is to be released pending appeal is to be made by the district court. United States v. Affleck, 765 F.2d 944, 954 (10th Cir.1985). See also Fed. R.App. P. 9 Advisory Committee Notes, Subdivision (b). BRORBY, Circuit Judge, respectfully dissenting. Because I do not believe it is the proper role of the court to establish a factor-driven test to be used to define what a religion is, I respectfully dissent from my colleagues. The ability to define religion is the power to deny freedom of religion. The ethereal and personal nature of religion has posed problems for most courts that have attempted to define it. See Wiggins v. Sargent, 753 F.2d 663, 666 (8th Cir.1985) (“The determination of whether a belief is religious or not is an extremely delicate task which must be approached with caution.”); Africa v. Pennsylvania, 662 F.2d 1025, 1031 (3rd Cir.1981) (“[Judges are ill-equipped to examine the breadth and content of an avowed religion”), cert. denied, 456 U.S. 908, 102 S.Ct. 1756, 72 L.Ed.2d 165 (1982); United States v. Kauten, 133 F.2d 703, 708 (2d Cir.1943) (recognizing that" }, { "docid": "5041754", "title": "", "text": "Cal.App.2d 673, 315 P.2d 394, 401 (1957); Van Alstyne, First Amendment at 1101 n. 1. . Professor Tribe argues that courts cannot properly rely on these types of \"externalities” because they “unduly constrain the concept of religion.\" American Constitutional Law at 1181-82. Using the “inclusion” approach, precisely the opposite is true; the Court may find that a new, unique, or unfamiliar set of beliefs is “religious” because the beliefs exhibit some of the vast array of “externalities” that are the hallmarks of most other religions. . The Court has gleaned many of these factors from the following cases: Africa, 662 F.2d at 1025; Malnak, 592 F.2d at 197; United States v. Sun Myung Moon, 718 F.2d 1210 (2d Cir.1983); Founding Church of Scientology, 409 F.2d at 1146; Washington Ethical Soc’y v. District of Columbia, 249 F.2d 127 (D.C.Cir.1957); Kauten, 133 F.2d at 703; Sherr, 672 F.Supp. at 81; Jacques, 569 F.Supp. at 730; Church of the Chosen People v. United States, 548 F.Supp. 1247 (D.Minn.1982); Womens Services, P.C. v. Thone, 483 F.Supp. 1022 (D.Neb.1979), aff'd, 636 F.2d 206 (8th Cir.1980); Stevens, 428 F.Supp. at 896; Remmers, 361 F.Supp. at 537; Kuch, 288 F.Supp. at 439; Fellowship of Humanity, 315 P.2d at 394. . Unfortunately, another factor that the Court could have included in the list is \"Dogmatism and Intolerance.” One need not be exceptionally familiar with the course of human history to realize that religious intolerance has been and continues to be the cause of countless deaths, many wars, and endless suffering. .This Court is aware of the Second and Third Circuit split on the issue of whether “religion” can have a different meaning depending on which religion clause of the First Amendment is at issue. Compare Malnak, 592 F.2d at 210, with United States v. Allen, 760 F.2d 447, 450 (2d Cir.1985). Because this case concerns the free exercise clause and not the establishment clause, the Court need not decide the issue. The Court notes, however, that while the Second Circuit (and Professor Tribe) make appealing policy arguments in favor of a dual definition, the Third Circuit correctly observes" }, { "docid": "18596260", "title": "", "text": "v. Colpoys, 122 F.2d 642, 647 (D.C.Cir.), cert. denied, 314 U.S. 678, 62 S.Ct. 184, 86 L.Ed. 543 (1941); see also Meyers v. United States, 181 F.2d 802 (D.C.Cir.), cert. denied, 339 U.S. 983, 70 S.Ct. 1030, 94 L.Ed. 1387 (1950) (adopting the views expressed in Meyers v. Welch for purposes of deciding an identical section 2255 motion brought by the same prisoner, on the same grounds, in the District Court for the District of Columbia). This reasoning is echoed in a line of cases beginning with the opinion of Judge, later Chief Justice, Vinson in Warring v. Colpoys, 122 F.2d 642 (D.C.Cir.), cert. denied, 314 U.S. 678, 62 S.Ct. 184, 86 L.Ed. 543 (1941). See United States v. LaVallee, 344 F.2d 313, 315 (2d Cir.), cert. denied, 382 U.S. 867, 86 S.Ct. 140, 15 L.Ed.2d 106 (1965); Gaitan v. United States, 295 F.2d 277, 280 (10th Cir.1961), cert. denied, 369 U.S. 857, 82 S.Ct. 939, 8 L.Ed.2d 15 (1962); Wilson v. State of North Carolina, 314 F.Supp. 249, 254 (E.D.N.C.1969), appeal dismissed, 429 F.2d 622 (4th Cir.1970); Eby v. United States, 286 F.Supp. 387 (N.D.Okla.1968), aff'd, 415 F.2d 319 (10th Cir.1969); cf. Commonwealth ex rel. Almeida v. Rundle, 409 Pa. 460, 187 A.2d 266, cert. denied, 374 U.S. 815, 83 S.Ct. 1709, 10 L.Ed.2d 1038 (1963) (Pennsylvania Supreme Court denied state habeas relief sought on the basis of a new theory of felony murder that could have removed petitioner's crime from that category, adopted after his conviction had become final). The Supreme Court’s decision in Davis v. United States, 417 U.S. 333, 94 S.Ct. 2298, 41 L.Ed.2d 109 (1974), however, casts doubt on the continued validity of this line of cases, including our decision in Meyers. Davis involved a conviction arising from the violation of Selective Service regulations. While the defendant’s appeal was pending in the United States Court of Appeals for the Ninth Circuit, the Supreme Court decided Gutnecht v. United States, 396 U.S. 295, 90 S.Ct. 506, 24 L.Ed.2d 532 (1970), a case interpreting the regulations under which Davis had been convicted. The Ninth Circuit accordingly remanded" }, { "docid": "1721114", "title": "", "text": "court’s denial of post-conviction release under 18 U.S.C. § 3145(c). Our “re view of detention or release orders is plenary as to mixed questions of law and fact and independent, with due deference to the district court’s purely factual findings.” United States v. Stricklin, 932 F.2d 1353, 1355 (10th Cir.1991). In United States v. Affleck, 765 F.2d 944, 952-53 (10th Cir.1985), we held that in order to grant bail pending appeal, a court must find that (1) the defendant has met his burden of proving by clear and convincing evidence that he is not likely to flee or pose a danger to the safety of any other person or to the community if released under § 3143(b)(1), and (2) he has established by a preponderance of the evidence that the appeal is not for purpose of delay, the appeal raises a substantial question of law or fact, and if that substantial question is determined favorably to defendant on appeal, the decision is likely to result in reversal or an order for a new trial of all counts on which imprisonment has been imposed. Here, the district court found that Meyers had a history of failing to appear and that he posed a significant flight risk. We conclude that the district court’s findings are amply supported by the record and that Meyers has failed to establish that he has satisfied the criteria required for release stated in § 3143(b). Therefore, the district court’s denial of bail pending appeal is affirmed. AFFIRMED. . The district court denied Meyers’ motion before trial at the hearing on October 2, 1995. (ROA, Vol. III at 68-70). However, the district court's written Order was filed on November 14, 1995. United States v. Meyers, 906 F.Supp. 1494 (D. Wyo.1995) . The district court \"gleaned” many of these factors from the following cases: Africa v. Commonwealth of Pa., 662 F.2d 1025 (3rd Cir.1981), cert. denied, 456 U.S. 908, 102 S.Ct. 1756, 72 L.Ed.2d 165 (1982); Malnak v. Yogi, 592 F.2d 197 (3rd Cir.1979); United States v. Sun Myung Moon, 718 F.2d 1210 (2nd Cir.1983), cert. denied, 466 U.S." }, { "docid": "18578831", "title": "", "text": "235 (E.D.Tex.1971), modified & aff’d, 447 F.2d 441 (5th Cir.1971), stay denied sub nom. United States v. Edgar, 404 U.S. 1206, 92 S.Ct. 8, 30 L.Ed.2d 10 (1971), cert. denied, 404 U.S. 1016, 92 S.Ct. 675, 30 L.Ed.2d 663 (1972); United States v. State of Texas, 342 F.Supp. 24 (E.D.Tex.1971), aff’d, 466 F.2d 518 (5th Cir.1972), vacated in part after remand, 509 F.2d 192 (5th Cir.1973); United States v. State of Texas, 356 F.Supp. 469 (E.D.Tex.1972), aff'd, 495 F.2d 1250 (5th Cir.1974); United States v. State of Texas, 506 F.Supp. 405 (E.D.Tex.1981), and United States v. State of Texas, 523 F.Supp. 703 (E.D.Texas 1981), rev’d, 680 F.2d 356 (5th Cir. 1982); United States v. Texas, 498 F.Supp. 1356 (E.D.Tex.1980), rev'd sub nom Gregory-Portland Independent School District v. Texas Education Agency, 576 F.2d 81 (5th Cir.1978), cert. denied, 440 U.S. 946, 99 S.Ct. 1423, 59 L.Ed.2d 634 (1979); United States v. Gregory-Portland Independent School District, 654 F.2d 989 (5th Cir. 1981). . Gearhart Industries v. Smith International, Inc., 741 F.2d 707, 710-11 (5th Cir.1984): Apple Barrel Productions, Inc. v. Beard, 730 F.2d 384, 386 (5th Cir.1984). . Gearhart, supra; Enterprise Inti, Inc. v. Corporacion Estatal Petrolera Ecuatoriana, 762 F.2d 464, 472 (5th Cir.,1985). . Gearhart, supra. . See Hunter v. Underwood, — U.S.-,-105 S.Ct. 1916, 1921, 85 L.Ed.2d 222 (1985); Pullman-Standard v. Swint, 456 U.S. 273, 287, 102 S.Ct. 1781, 1789, 72 L.Ed.2d 66 (1982). . See Washington v. Watkins, 655 F.2d 1346, 1352-4 (5th Cir.1981), cert. denied, 456 U.S. 949, 102 S.Ct. 2021, 72 L.Ed.2d 474 (1982); 9 C. Wright & A. Miller § 2589 at 753 (1971 & Supp. 1985). . See United States v. Texas, 447 F.2d 441 (5th Cir.1971). . Id. at 446 ¶ E(l). . Id. at 446 ¶ E(2). . See New Orleans Public Services, Inc. v. United Gas Pipe Line Co., 732 F.2d 452, 463 (5th Cir.), cert. denied, sub nom. Morial v. United Gas Pipe Line Co., — U.S. -, 105 S.Ct. 434, 83 L.Ed.2d 360 (1984). . See Bush v. Viterna, 740 F.2d 350, 355-57 (5th Cir.1984); Davis v. East Baton Rouge" }, { "docid": "1721118", "title": "", "text": "to be made by the district court. United States v. Affleck, 765 F.2d 944, 954 (10th Cir.1985). See also Fed. R.App. P. 9 Advisory Committee Notes, Subdivision (b). BRORBY, Circuit Judge, respectfully dissenting. Because I do not believe it is the proper role of the court to establish a factor-driven test to be used to define what a religion is, I respectfully dissent from my colleagues. The ability to define religion is the power to deny freedom of religion. The ethereal and personal nature of religion has posed problems for most courts that have attempted to define it. See Wiggins v. Sargent, 753 F.2d 663, 666 (8th Cir.1985) (“The determination of whether a belief is religious or not is an extremely delicate task which must be approached with caution.”); Africa v. Pennsylvania, 662 F.2d 1025, 1031 (3rd Cir.1981) (“[Judges are ill-equipped to examine the breadth and content of an avowed religion”), cert. denied, 456 U.S. 908, 102 S.Ct. 1756, 72 L.Ed.2d 165 (1982); United States v. Kauten, 133 F.2d 703, 708 (2d Cir.1943) (recognizing that the definition of religion “is found in the history of the human race and is incapable of compression into a few words”); see also Brown v. Dade Christian Schools, Inc., 556 F.2d 310 (5th Cir.1977) (judges filed two concurrences and two dissenting opinions in a case attempting to define religion in order to determine whether a religious school’s policy of racial discrimination was religious or social or political in nature), cert. denied, 434 U.S. 1063, 98 S.Ct. 1235, 55 L.Ed.2d 763 (1978). In Wisconsin v. Yoder, 406 U.S. 205, 215-16, 92 S.Ct. 1526, 1533-34, 32 L.Ed.2d 15 (1972), the Supreme Court held that religious beliefs are distinct from philosophical and personal choices but failed to provide a test or a definition against which lower courts could hold the religious claims of petitioners to determine whether the claims warrant constitutional protection. Many courts have felt compelled by the distinction made in Yoder to establish a definition of religion. See United States v. Ward, 989 F.2d 1015, 1017 (9th Cir.1992); Quaring v. Peterson, 728 F.2d 1121, 1123" }, { "docid": "6403810", "title": "", "text": "them “... to be declarants of religious orthodoxy.... ” even for aliens. Africa v. Commonwealth of Pennsylvania, 662 F.2d 1025, 1030 (3rd Cir. 1981). The Court concludes that when Congress permitted an alien’s status to turn upon religious considerations it intended that the INS do no more than to determine if the religion in question is bona fide. A more invidious use of the government’s power over aliens should require more explicit legislative direction. The task of distinguishing a religion from something else (e.g., a delusion, a personal credo, or a fraud) is a recurring and perplexing problem, and the outer limits of what is “religious” may be ultimately unascertainable. See Africa v. Commonwealth of Pennsylvania, supra; International Society for Krishna Consciousness, Inc. v. Barber, 650 F.2d 430, 438-441 (2d Cir. 1981); Founding Church of Scientology v. United States, 409 F.2d 1146 (D.C.Cir.), cert, denied, 396 U.S. 963, 90 S.Ct. 434, 24 L.Ed.2d 427 (1969); Malnak v. Yogi, 592 F.2d 197 (3rd Cir. 1979); United States v. Kuch, 288 F.Supp. 439 (D.D.C.1968); Washington Ethical Society v. District of Columbia, 101 U.S.App.D.C. 371, 249 F.2d 127 (1957); Theriault v. Silber, 453 F.Supp. 254 (W.D. Tex.1978). It is unnecessary to search for those limits in Nikkuni’s case, however, because upon the administrative record the Unification Church, by any historical analogy, philosophical analysis, or judicial precedent (indeed, by INS’ own criteria) must be regarded as a bona fide religion. The Court has similar misgivings about INS’ statutory authority to prescribe a particular quantum of faith and the manner in which it must be evinced to satisfy the service that an alien believer is entitled status adjustment even as a matter of grace. More portentous consequences for a U.S. citizen depend merely upon whether his beliefs are “sincerely held and ... in his own scheme of things, religious.” United States v. Seeger, 380 U.S. 163, 185, 85 S.Ct. 850, 863, 13 L.Ed.2d 733 (1965). See Welsh v. United States, 398 U.S. 333, 356, 90 S.Ct. 1792, 1804, 26 L.Ed.2d 308 (1970). The INS candidly acknowledges its skepticism of the intentions of Misono and Vanalderwert" }, { "docid": "5041753", "title": "", "text": "debate will help fill the theoretical and definitional void left by the Court’s failure to define \"religion” is an open issue. See G. Freeman, The Misguided Search for the Constitutional Definition of Religion, 71 Geo.LJ. 1519 (1983); J. Choper, Defining Religion in the First Amendment, 1982 U.Ill.L.Rev. 579; T. Hall, The Sacred and the Profane: A First Amendment Definition of Religion, 61 Tex.L.Rev. 139 (1982); Note, Toward a Constitutional Definition of Religion, 91 Harv.L.Rev. 1056 (1978); and articles collected in Africa, 662 F.2d at 1032 n. 12. . Contra Berman v. United States, 156 F.2d 377, 380 (9th Cir.1946), cert. denied, 329 U.S. 795, 67 S.Ct. 480, 91 L.Ed. 680 (1946) (“religion'' as used in draft act does not include conscientious social belief). . L. Tribe, American Constitutional Law 1182 (2d ed. 1988). . To the extent that these morals or ethics restrain behavior, they comport with the original meaning of the word “religion,” which comes from the Latin verb religare, meaning to “tie back” or \"rebind.” Fellowship of Humanity v. County of Alameda, 153 Cal.App.2d 673, 315 P.2d 394, 401 (1957); Van Alstyne, First Amendment at 1101 n. 1. . Professor Tribe argues that courts cannot properly rely on these types of \"externalities” because they “unduly constrain the concept of religion.\" American Constitutional Law at 1181-82. Using the “inclusion” approach, precisely the opposite is true; the Court may find that a new, unique, or unfamiliar set of beliefs is “religious” because the beliefs exhibit some of the vast array of “externalities” that are the hallmarks of most other religions. . The Court has gleaned many of these factors from the following cases: Africa, 662 F.2d at 1025; Malnak, 592 F.2d at 197; United States v. Sun Myung Moon, 718 F.2d 1210 (2d Cir.1983); Founding Church of Scientology, 409 F.2d at 1146; Washington Ethical Soc’y v. District of Columbia, 249 F.2d 127 (D.C.Cir.1957); Kauten, 133 F.2d at 703; Sherr, 672 F.Supp. at 81; Jacques, 569 F.Supp. at 730; Church of the Chosen People v. United States, 548 F.Supp. 1247 (D.Minn.1982); Womens Services, P.C. v. Thone, 483 F.Supp. 1022 (D.Neb.1979), aff'd," }, { "docid": "2363131", "title": "", "text": "in administering 26 U.S.C. § 170 threatened no excessive entanglement). . See Hobbie v. Unemployment Appeals Comm’n, 480 U.S. 136, 141-42, 107 S.Ct. 1046, 1049, 94 L.Ed.2d 190 (1987); United States v. Lee, 455 U.S. 252, 257-58, 102 S.Ct. 1051, 1055, 71 L.Ed.2d 127 (1982); Thomas v. Review Bd., 450 U.S. 707, 717-19, 101 S.Ct. 1425, 1431-33, 67 L.Ed.2d 624 (1981); Wisconsin v. Yoder, 406 U.S. 205, 220-21, 92 S.Ct. 1526, 1535-36, 32 L.Ed.2d 15 (1972); Gillette v. United States, 401 U.S. 437, 462, 91 S.Ct. 828, 842, 28 L.Ed.2d 168 (1971); see also West Va. State Bd. of Educ. v. Barnette, 319 U.S. 624, 639, 63 S.Ct. 1178, 1186, 87 L.Ed. 1628 (1943). . Davis v. Beason, 133 U.S. 333, 10 S.Ct. 299, 33 L.Ed. 637 (1890); Reynolds v. United States, 98 U.S. 145, 25 L.Ed. 244 (1879). To the extent that Davis may have interpreted the Establishment Clause (as distinct from the Free Exercise Clause) as subordinate to state regulation of \"acts recognized by the general consent of the Christian world in modern times as proper matters for prohibitory legislation,\" 133 U.S. at 343, 10 S.Ct. at 301, 33 L.Ed. at 640, we regard it as no longer controlling. Neither Davis nor Reynolds presented issues of Establishment Clause concern, as those concerns are understood in contemporary decisions like Lemon. . Prince v. Massachusetts, 321 U.S. 158, 64 S.Ct. 438, 88 L.Ed. 645 (1944); United States v. Lee, 455 U.S. 252, 257-58, 102 S.Ct. 1051, 1055, 71 L.Ed.2d 127 (1982); United States v. Sun Myung Moon, 718 F.2d 1210, 1227 (2d Cir.1983), cert. denied, 466 U.S. 971, 104 S.Ct. 2344, 80 L.Ed.2d 818 (1984). . Grosz v. City of Miami Beach, 721 F.2d 729 (11th Cir.1983), cert. denied, 469 U.S. 827, 105 S.Ct. 108, 83 L.Ed.2d 52 (1984); Lakewood Congregation of Jehovah's Witnesses v. City of Lakewood, 699 F.2d 303, 303 & n. 1 (6th Cir.), cert. denied, 464 U.S. 815, 104 S.Ct. 72, 78 L.Ed.2d 85 (1983). .The bulk of the constitutional analysis in Bob Jones addressed the government’s compelling interest in preventing racial discrimination, which the Court" }, { "docid": "18815066", "title": "", "text": "it qualifies for the exemption. First Libertarian Church v. Commissioner, ¶ 74.27 P-H TC 216, 220 (1980); Parker v. C.I.R., 365 F.2d 792, 799 (8th Cir. 1966), cert. denied, 385 U.S. 1026, 87 S.Ct. 752, 17 L.Ed.2d 674 (1967). Tax exemptions are a matter of legislative grace, and thus, plaintiff must establish that it is entitled to exemption. Dickinson v. U.S., 346 U.S. 389, 74 S.Ct. 152, 98 L.Ed. 132 (1953). In determining whether the plaintiff is entitled to an exemption, the Court must avoid any judgments concerning the truth or validity of the plaintiff’s religious beliefs. In Teterud v. Burns, 522 F.2d 357 (8th Cir. 1975), the United States Court of Appeals for the Eighth Circuit emphasized the first amendment’s ban on such inquiries: “It is not the province of government officials or court to determine religious orthodoxy.” 522 F.2d at 360 (citations omitted). See also U.S. v. Seeger, 380 U.S. 163, 185, 85 S.Ct. 850, 863, 13 L.Ed.2d 733 (1965) (“while the ‘truth’ of a belief is not open to question, there remains the significant question whether [the belief] is ‘truly held.’ ”). Even if the Court determines that the plaintiff organization and its adherents are sincere in their beliefs, they must still establish that their beliefs are religious in nature. The definitions of the words “religion” and “religious” are by no means free of ambiguity. See Washington Ethical Society v. District of Columbia, 249 F.2d 127, 129 (D.C.Cir.1957). See also Malnak v. Yogi, 592 F.2d 197 (3d Cir. 1979) (definition of religion in first amendment cases). The United States Supreme Court has not established a clear standard for determining which beliefs are religious. The Supreme Court has, however, distinguished between personal secular philosophy and religious beliefs. See, e.g., Wisconsin v. Yoder, 406 U.S. 205, 216, 92 S.Ct. 1526, 1533, 32 L.Ed.2d 15 (1972) (distinguishing between the religious belief of the Amish and personal philosophy of Thoreau). In Africa v. Commonwealth of Pennsylvania, 662 F.2d 1025 (3d Cir.), cert. denied, - U.S. -, 102 S.Ct. 1756, 72 L.Ed.2d 165 (1982), the court set forth a three-part test for" }, { "docid": "1421471", "title": "", "text": "appear to be justified, and that much of the injunctive order is also disapproved. A “bare assertion . .. without the production of any evidence ... is simply not sufficient to sustain [an] assertion that [the Unification Church] is a religious organization.” United States v. Berg, 636 F.2d 203 (8th Cir., 1980). Plaintiffs’ claims, should not be accepted without inquiry. The parties should have an opportunity to develop the record and obtain rulings below. It may be observed, however, that a considerable burden is on the state, in questioning a claim of a religious nature. Strict or narrow construction of a statutory exemption for religious organizations is not favored. Washington Ethical Society v. District of Columbia, 249 F.2d 127, 129 (D.C.Cir.1957, Burger, J.). Judicial determination of religious sincerity and status is a most sensitive undertaking, but is not without precedent. Gillette, supra 401 U.S. at 457, 91 S.Ct. at 840 (whether a belief is “truly held” is open to question, the “truth of a belief” is not); Wisconsin v. Yoder, 406 U.S. 205, 219-29 and 235, 92 S.Ct. 1526, 1535-1540 and 1543, 32 L.Ed.2d 15 (1972) (sincerity of religious belief demonstrated by conduct); Founding Church of Scientology v. United States, 409 F.2d 1146, 1162 (D.C.Cir.1969), cert. den., 396 U.S. 963, 90 S.Ct. 434, 24 L.Ed.2d 427 (1969) (declining to hold summarily that plaintiff is a religion; claim of religious status is subject to contradiction by showing of insincerity of beliefs). Cf. Walker v. Wegner, 477 F.Supp. 648, 652 (D.S.D.1979) (preliminary injunction granted against a statutory scheme involving administrative determination of “whether a particular cause is religious”), affirmed on other grounds, 624 F.2d 60 (8th Cir. 1980). In summary, we agree with the district court’s holding that plaintiffs have standing to challenge the classification made in the exemption section of the Act, as it pertains to religious organizations; we agree with the court’s invalidation of the classification made in that section; we agree that the exemption section should apply to all reli- gious organizations, subject to possible legislative revision; we disagree with the conclusion that no part of the Act may" } ]

[ { "docid": "22847569", "title": "", "text": "of Review We review the district court’s grant of summary judgment de novo. Mongeluzo v. Baxter Travenol Long Term, Disability Ben. Plan, 46 F.3d 938 (9th Cir.1995). We also review de novo the district court’s choice and application of the standard of review applicable to decisions by fiduciaries in the ERISA context. Taft v. Equitable Life Assurance Soc’y, 9 F.3d 1469, 1471 (9th Cir.1993). When an ERISA plan vests its administrator with discretion to determine eligibility for benefits and to construe the terms of the plan, as the Plan does in this case, the district court ordinarily reviews the administrator’s determination for abuse of discretion. Firestone Tire & Rubber Co. v. Bruch, 489 U.S. 101, 115, 109 S.Ct. 948, 956-57, 103 L.Ed.2d 80 (1989); Taft, 9 F.3d at 1471. The degree of judicial deference associated with this standard of review may, however, be affected by factors such as conflict of interest. See Firestone, 489 U.S. at 115, 109 S.Ct. at 956-57 (courts must weigh conflict as a “factor” in determining whether abuse of discretion has occurred); Brown v. Blue Cross & Blue Shield of Alabama, Inc., 898 F.2d 1556, 1564 (11th Cir.1990) (the abuse of discretion standard “must be contextually tailored[,]” so that the degree of deference accorded to the plan fiduciary depends “upon the dynamics of the decisionmaking process[ ]”) (quotations omitted). The Plan in this case is actually an insurance policy issued and administered by Standard. Given Standard’s dual role as both the funding source and the administrator of the Plan, we are faced with an inherent conflict of interest situation, and must take this factor into account. Brown, 898 F.2d at 1561 (“Because an insurance company pays out to beneficiaries from its own assets rather than the assets of a trust, its fiduciary role lies in perpetual conflict with its profit-making role as a business.”) Nevertheless, the presence of conflict does not automatically remove the deference we ordinarily accord to ERISA administrators who are authorized by the plan to interpret a plan’s provisions. We considered this issue in Atwood v. Newmont Gold Co., Inc., 45 F.3d 1317," } ]

[ { "docid": "17048908", "title": "", "text": "of July 1, 1999 denying Martin’s claim de novo quoted almost verbatim the above passage from Dr. Tru-chelut’s report. II. Legal Standards A. Abuse of Discretion Standard A denial of ERISA benefits is reviewed de novo unless “the benefit plan gives the administrator or fiduciary discretionary authority to determine eligibility for benefits or to construe the terms of the plan.” Firestone Tire and Rubber v. Bruch, 489 U.S. 101, 115, 109 S.Ct. 948, 103 L.Ed.2d 80 (1989). The parties have previously stipulated.that an abuse of discretion applies. Martin again concedes this standard in his opposition brief, albeit with an argument for the more searching review contemplated by the Atwood case, infra. Where discretion is accorded, the Ninth Circuit reviews the record under the abuse of discretion standard, which has been equated with the arbitrary and capricious standard. See Snow v. Standard Ins. Co., 87 F.3d 327, 330 (9th Cir.1996) and cases cited. The touchstone of this standard is reasonableness. “Our inquiry is not into whose interpretation of plan documents is most persuasive, but whether the plan administrator’s interpretation is unreasonable.” Clark v. Washington Teamsters Welfare Trust, 8 F.3d 1429, 1432 (9th Cir.1993). Thus, the standard mandates some deference to the plan administrator’s decision. Substituted judgment is inappropriate. Taft v. Equitable Life Assurance Soc’y, 9 F.3d 1469, 1473 (9th Cir.1993). It is an abuse of discretion for an administrator to make a decision without any explanation, or in a way that conflicts with the plain language of the plan, or that is based on clearly erroneous findings of fact. Atwood v. Newmont Gold Inc., 45 F.3d 1317, 1323-24 (9th Cir.1995). Signifi cantly, a decision should not be overturned where there is “relevant evidence that reasonable minds might accept as adequate to support a conclusion even if it is possible to draw two inconsistent conclusions from the evidence.” Snow, 87 F.3d at 331, citing Maynard v. City of San Jose, 37 F.3d 1396, 1404 (9th Cir.1994). The fact that an administrator’s decision is in conflict with evidence in the record is not alone sufficient to meet the clearly erroneous standard. Taft, 9" }, { "docid": "22800449", "title": "", "text": "from available plans. That explains why, as we pointed out in Snow v. Standard Ins. Co., 87 F.3d 327, 330 (9th Cir.1996), “[w]e have not been stingy in our determinations that discretion is conferred upon plan administrators.” Of course, timidity aside, the first step in our analysis must still be to determine whether “the benefit plan gives the administrator or fiduciary discretionary authority to determine eligibility for benefits or to construe the terms of the plan.” Firestone Tire & Rubber Co. v. Bruch, 489 U.S. 101, 115, 109 S.Ct. 948, 956-57, 103 L.Ed.2d 80 (1989). If it does not, review is de novo. If it does, we should, instead, review the decision for abuse of discretion. See Snow, 87 F.3d at 330; Atwood, 45 F.3d at 1321 & n. 1; McKenzie v. General Tel. Co., 41 F.3d 1310, 1314 (9th Cir.1994); Taft v. Equitable Life Assurance Soc’y, 9 F.3d 1469, 1471 & n. 2 (9th Cir.1994). We outlined the general principles which should be applied to that determination in Snow, 87 F.3d at 330, and, as I see it, there is no reason to deviate from that outline at this time. We said: [A] proper and efficient functioning of an ERISA plan does often depend upon the use of discretion by the plan fiduciaries. As we have pointed out, a plan does confer discretion when it “includes even one important discretionary element, and the power to apply that element is unambiguously retained by its administrator.” Bogue v. Ampex Corp., 976 F.2d 1319, 1325 (9th Cir.1992), cert. denied, 507 U.S. 1031, 113 S.Ct. 1847, 123 L.Ed.2d 471 (1993). In Bogue that element was found in language in an employment severance plan which provided that the administrator would make determinations about similar employment positions within the company. Id. at 1324. In other words, if the plan administrator has the authority to determine eligibility for benefits, that inherently confers discretion upon him. See Patterson v. Hughes Aircraft, Co., 11 F.3d 948, 949-50 (9th Cir.1993) (per curiam); Eley v. Boeing Co., 945 F.2d 276, 278 (9th Cir.1991); Madden v. ITT Long Term Disability Plan" }, { "docid": "7614046", "title": "", "text": "income. On the other hand, defendants contend that the Other Income Benefits under the plan include workers’ compensation benefits. Defendants have counterclaimed asserting causes of action for breach of contract, money due and owing, and declaratory relief. DISCUSSION I. Standard of Review Defendants contend that the Court must review its disability determination under an abuse of discretion standard, while plaintiff argues that defendant Hartford has a conflict of interest that warrants less deferential review by the Court. “[A] denial of benefits challenged under [ERISA] § 1132(a)(1)(B) is to be reviewed under a de novo standard unless the benefit plan gives the administrator or fiduciary discretionary authority to determine eligibility for benefits or to construe the terms of the plan.” Firestone Tire & Rubber Co. v. Bruch, 489 U.S. 101, 115, 109 S.Ct. 948, 103 L.Ed.2d 80 (1989); Bendixen v. Standard Ins. Co., 185 F.3d 939, 942 (9th Cir.1999). When the plan confers discretion on the plan administrator to determine eligibility for benefits, courts review the denial of benefits for abuse of discretion. Id. The “default is that the administrator has no discretion, and the administrator has to show that the plan gives it discretionary authority in order to get any judicial deference to its decision.” Kearney v. Standard Ins. Co., 175 F.3d 1084, 1089 (9th Cir.1999) (en banc). The ERISA plan at issue here unambiguously provides Hartford with discretion to determine whether a claimant is entitled to benefits. Under the plan, Hartford has “full discretion and authority to determine eligibility for benefits and to construe and interpret all terms and provisions of the Group Insurance Policy.” AR 723. Plaintiff does not contend that the policy does not confer discretionary authority upon Hartford; instead, plaintiff argues that de novo review should apply because Hartford has an inherent conflict of interest. The Ninth Circuit has held that the abuse of discretion standard of review can be “heightened” by a plan administrator’s conflict of interest. See Atwood v. Newmont Gold Co., 45 F.3d 1317, 1322 (9th Cir.1995). There is an apparent conflict of interest where a long-term disability policy is both funded and" }, { "docid": "22573551", "title": "", "text": "Snow v. Standard Ins. Co., 87 F.3d 327, 331 (9th Cir.1996). In Firestone Tire & Rubber Co. v. Bruch, 489 U.S. 101, 115, 109 S.Ct. 948, 103 L.Ed.2d 80 (1989), the Supreme Court said that when an ERISA plan grants discretionary authority to the plan administrator to determine plan eligibility, the court will ordinarily review a committee’s decision to deny benefits for an abuse of discretion. In Kearney v. Standard Ins. Co., 175 F.3d 1084, 1090 (9th Cir.1999), the Ninth Circuit held that the plan documents must grant this discretionary authority unambiguously; if the plan fails to do this, the district court must review a committee’s decision de novo. In this case, the retirement plan language unambiguously gives the Committee broad discretion to determine eligibility benefits. It grants the administrative committee the “power” and “duty” to “interpret the plan and to resolve ambiguities, inconsistencies and omissions” and to “decide on questions concerning the plan and the eligibility of any Employee .... ” See Sandy v. Reliance Standard Life Ins. Co., 222 F.3d 1202, 1207 (9th Cir.2000) (noting how there “is no magic to the words ‘discretion’ or ‘authority’ ”). Even if a plan, however, provides this discretionary authority, warranting review for an abuse of discretion standard, the courts will apply a heightened standard of review if one of the plan administrators has a “serious” conflict of interest. Atwood v. Newmont Gold Co., 45 F.3d 1317, 1322-23 (9th Cir.1995). Bergt maintains Committee member Kevin Cordell had a serious conflict of interest because he was both a beneficiary of the retirement plan and an administrator. Furthermore, according to Bergt, Laurence Rhodes, a former member of the retirement plan’s administrative committee, said that Cordell told him that Bergt “was trying to get into the ... [retirement plan], and ... as long as [Cordell] had anything to say about it that would not happen.” Also, members of the Committee admitted the underfunding of the retirement plan was a factor in their consideration of Bergt’s claim. This evidence fails to show a serious conflict. Cordell serving as an administrator while also being a beneficiary is" }, { "docid": "16726110", "title": "", "text": "that he was not totally disabled. Ingram brought suit under ERISA. See 29 U.S.C. § 1132(a)(1)(B). The district court granted summary judgment against Ingram, from which he now appeals. We review a district court’s grant of summary judgment de novo. Weiner v. San Diego County, 210 F.3d 1025, 1028 (9th Cir.2000). II Depending upon the language of an ERISA plan, a district court reviews a plan administrator’s decision to deny benefits either de novo or for abuse of discretion. The de novo standard is appropriate “unless the benefit plan gives the administrator or fiduciary discretionary authority to determine eligibility for benefits or to construe the terms of the plan.” Firestone Tire & Rubber Co. v. Bruch, 489 U.S. 101, 115, 109 S.Ct. 948, 103 L.Ed.2d 80 (1989). As we recently stated in an en banc decision, “[A]n administrator ha[s] discretion only where discretion [is] ‘unambiguously retained.’ ” Kearney v. Standard Ins. Co., 175 F.3d 1084, 1090 (9th Cir.1999) (en banc) (quoting Bogue v. Ampex Corp., 976 F.2d 1319, 1325 (9th Cir.1992)). “[T]he default is that the administrator has no discretion, and the administrator has to show that the plan gives it discretionary authority in order to get any judicial deference to its decision.” Id. at 1089. We therefore examine the text of MetLife’s disability plan to determine whether it “unambiguously” states that MetLife has “discretionary authority” in making benefits decisions. The plan states, in relevant part: The carrier solely is responsible for providing the benefits under this Plan.... The carrier will make all decisions on claims and has reserved the right to examine medically an individual for whom claim is made at any time during the period of disability. Accordingly, the management and control of the operation and administration of claim procedures under the Plan, including the review and payment or denial of claims and the provision of full and fair review of claim denial pursuant to Section 503 of the Act, shall be vested in the carrier. We discuss the statements upon which MetLife relies in the order in which they appear. The plan first states that “[t]he carrier" }, { "docid": "8072701", "title": "", "text": "applicable to decisions by ERISA plan administrators. See Lang v. Long-Term Disability Plan of Sponsor Applied Remote Tech., Inc., 125 F.3d 794, 797 (9th Cir.1997); Taft v. Equitable Life Assurance Soc’y, 9 F.3d 1469, 1471 (9th Cir.1993). Although ERISA establishes a right to judicial review of benefits decisions, the statute does not set forth the appropriate standard of review for such determinations. But in Firestone Tire & Rubber Co. v. Bruch, 489 U.S. 101, 109 S.Ct. 948, 103 L.Ed.2d 80 (1989), the Supreme Court addressed the issue. There, the Court held that a court should review a denial of benefits challenged pursuant to 29 U.S.C. § 1132(a)(1)(B) de novo “unless the benefit plan gives the administrator or fiduciary discretionary authority to determine eligibility for benefits or to construe the terms of the plan.” Id. at 115, 109 S.Ct. at 956-57. The Court recognized, however, that “if a benefit plan gives discretion to an administrator or fiduciary who is operating under a conflict of interest, that conflict must be weighed as a ‘facto[r] in determining whether there is an abuse of discretion.’ ” Id. at 115, 109 S.Ct. at 957 (quoting Restatement (Second) of Trusts § 187, Comment d (1959)). In cases in which the beneficiary alleges that the administrator has a conflict of interest, we follow a two-part test to determine whether to use a heightened level of scrutiny in reviewing the administrator’s benefits decisions. See Atwood v. Newmont Gold Co., 45 F.3d 1317, 1323 (9th Cir.1995). As we stated in Atwood: First, we must determine whether the affected beneficiary has provided material, probative evidence, beyond the mere fact of the apparent conflict, tending to show that the fiduciary’s self-interest caused a breach of the administrator’s fiduciary obligations to the beneficiary. If not, we apply our traditional abuse of discretion review. On the other hand, if the beneficiary has made the required showing, the principles of trust law require us to act very skeptically in deferring to the discretion of an administrator who appears to have committed a breach of fiduciary duty. Id. In the latter circumstance, the plan must" }, { "docid": "23428957", "title": "", "text": "Disability Appeals Committee decision. Friedrich submitted another request for reconsideration two weeks later based upon a Social Security Disability finding of disability. After Intel refused to reconsider the claim, Friedrich filed this lawsuit in October 1994. The district court initially dismissed Friedrich’s claim for breach of fiduciary duty on December 14, 1994. On October 5, 1995, the district court denied cross-motions for summary judgment and ruled that the 1991 LTD Plan controlled -and that the LTD Plan grants the administrator discretionary authority to determine eligibility for benefits and to construe the terms of the LTD Plan. After a bench trial, on July 9, 1997, the district judge entered judgment in favor of Friedrich. On October 16, 1997, the district court awarded Friedrich attorneys’ fees. Intel timely appeals the final judgment. The district court exercised jurisdiction pursuant to 28 U.S.C. § 1331 (1993) (federal question) and we have appellate jurisdiction pursuant to 28 U.S.C. § 1291 (Í993) to review the final judgment. • II. STANDARD OF REVIEW This court reviews de novo the district court’s choice of the standard of review applicable to decisions by fiduciaries. Snow v. Standard Ins. Co., 87 F.3d 327, 331 (9th Cir.1996). This court reviews underlying findings of fact for clear error. Id. When an ERISA plan administrator is given discretion to determine benefits eligibility, courts must review the decision denying benefits under the deferential abuse of discretion standard. Firestone Tire and Rubber Co. v. Bruch, 489 U.S. 101, 115, 109 S.Ct. 948, 103 L.Ed.2d 80 (1989). Because Intel serves as the plan administrator and funds the plan from its own general assets, Intel acts as a fiduciary in apparent conflict with its beneficiaries, including Friedrich. See Atwood v. Newmont Gold Co., 45 F.3d 1317, 1322 (9th Cir.1995). We follow a two-part test to determine whether to invoke heightened scrutiny of a benefits decision made by fiduciaries with apparent conflicts. Id. at 1323. First, the beneficiary needs to shoulder the burden of providing “material, probative evidence, beyond the mere fact of the apparent conflict, tending to show that the fiduciary’s self-interest caused a breach of the" }, { "docid": "3119074", "title": "", "text": "Court must review the benefits eligibility decision depends upon how much discretion the Plan grants an administrator or fiduciary to determine eligibility for benefits or to construe the terms of the plan. See Firestone Tire & Rubber Co. v. Bruch, 489 U.S. 101, 115, 109 S.Ct. 948, 103 L.Ed.2d 80 (1989). When an ERISA plan vests its administrator with such discretion, as the parties agree the Plan does in this case, the district court ordinarily reviews the administrator’s decision for abuse of discretion, rather than performing a de novo review of the record. Lang v. Long-Term Disability Plan of Sponsor Applied Remote Technology, Inc., 125 F.3d 794, 797 (9th Cir.1997). Yet even when the plan vests the administrator with discretion, the degree of deference associated with this standard of review may be affected if a plaintiff makes a sufficient showing that the administrator has a conflict of interest. Snow v. Standard Ins. Co., 87 F.3d 327, 330 (9th Cir.1996). The court must first inquire whether a formal conflict of interest exists because of an administrator’s dual role as both the funding source and the administrator of the plan. Next, the court considers whether this inherent conflict of interest actually influenced the decision. See Lang, 125 F.3d at 798; Atwood v. New- mont Gold Co., Inc., 45 F.3d 1317, 1322 (9th Cir.1995). The burden to show an actual conflict of interest lies first with the affected beneficiary who must present “material probative evidence, beyond the mere fact of the apparent conflict, tending to show that the fiduciary’s self-interest caused a breach of the administrator’s fiduciary obligations to the beneficiary.” Atwood, 45 F.3d at 1322. If the beneficiary satisfies this burden, the Court still reviews on an abuse of discretion basis, but it becomes “less deferential.” See Snow, 87 F.3d at 331 (citing Atwood, 45 F.3d at 1322). 2. Conflict of Interest The parties do not dispute that MetLife had a formal conflict of interest because, as the insurance company, it had to pay the benefits it awarded as Plan administrator. The question is whether this formal conflict of interest infected Defendants’" }, { "docid": "14015715", "title": "", "text": "receive Social Security Disability benefits. Docket No. 72 (Moody Dec.) ¶ 2. CONCLUSIONS OF LAW I.Standard of Review 1. ERISA provides for judicial review of a decision to deny benefits to an ERISA plan beneficiary. See 29 U.S.C. § 1132(a)(1)(B). 2. ERISA creates federal court jurisdiction to hear such a claim. See 29 U.S.C. § 1132(e). 3. In determining the appropriate standard of review, a court should be guided by principles of trust law, analogizing a plan administrator to the trustee of a common law trust. A benefit determination should be considered to be a fiduciary act, i.e., an act in which the administrator owes a special duty of loyalty to the plan beneficiaries. Metropolitan Life Ins. Co. v. Glenn, — U.S.-,-, 128 S.Ct. 2343, 2347, 171 L.Ed.2d 299 (2008), quoting Firestone Tire & Rubber Co. v. Bruch, 489 U.S. 101, 111-113, 109 S.Ct. 948, 103 L.Ed.2d 80 (1989). 4. ERISA benefits determinations are to be reviewed de novo, unless the benefit plan gives the administrator or fiduciary discretionary authority to determine eligibility for benefits or to construe the terms of the plan. Glenn at 2348; see also Firestone at 115, 109 S.Ct. 948. 5. Where an administrator has retained discretionary authority, “trust principles make a deferential standard of review [i.e., review for abuse of discretion] appropriate.” Glenn at 2348, quoting Firestone at 111, 109 S.Ct. 948. The court must evaluate all the facts and circumstances to make something “akin to a credibility determination about the insurance company’s or plan administrator’s reason for denying coverage under a particular plan and a particular set of medical and other records.” Abatie v. Alta Health & Life Ins. Co., 458 F.3d 955, 969 (9th Cir.2006). 6. An administrator has discretion only where it is “unambiguously retained.” Kearney v. Standard Ins. Co., 175 F.3d 1084, 1090 (9th Cir.1999), quoting Bogue v. Ampex Corp., 976 F.2d 1319, 1325 (9th Cir.1992). In this case, the parties agree that defendant retained such discretion. See P-025 (policy provision regarding “interpretation of the policy”). 7. Where a benefit plan gives discretion to an administrator who is operating under a" }, { "docid": "5797660", "title": "", "text": "court and sought summary judgment. The district court granted Reliance’s third summary judgment motion. The district court concluded that, as long as Reliance had considered the contrary opinion of Thomas’ doctors when making its coverage decision, Reliance had not abused its discretion in discrediting those opinions and denying Thomas’ claim. DISCUSSION I. Standard of Review “[A] denial of benefits challenged under [ERISA] is to be reviewed under a de novo standard unless the benefit plan gives the administrator or fiduciary discretionary authority to determine eligibility for benefits or to construe the terms of the plan.” Firestone Tire & Rubber Co. v. Bruch, 489 U.S. 101, 115, 109 S.Ct. 948, 103 L.Ed.2d 80 (1989). The principal issue on appeal is whether the district court erred in reviewing Reliance’s decision for abuse of discretion based on its conclusion that the Policy granted Reliance discretionary authority. We review the district court’s grant of summary judgment de novo. See Lang v. Long-Term Disability Plan, 125 F.3d 794, 797 (9th Cir.1997). We also review de novo Thomas’ “contention that the district court did not apply the proper standard of review.” McDaniel v. Chevron Corp., 203 F.3d 1099, 1107 (9th Cir.2000). Our consideration of Thomas’ claim is guided by our recent en banc decision, Kearney v. Standard Ins. Co., in which we held that district courts must review claims de novo unless the discretion to grant or deny claims is “unambiguously retained” by a plan administrator or fiduciary. 175 F.3d at 1090 (quoting Bogue v. Ampex Corp., 976 F.2d 1319, 1325 (9th Cir.1992)). We concluded that unambiguous retention of discretion by an administrator or fiduciary is required because of the well-settled rule of policy interpretation dictating that “ambiguities are construed in favor of the insured.” Id. Applying this principle to the plan at issue in that case, we held that a policy that conditions payment of benefits on the “receipt of satisfactory written proof’ of disability is ambiguous because it is susceptible of at least three interpretations, two of which would not confer absolute discretion on the administrator or fiduciary. Id. at 1089-90 (quoting benefit plan)" }, { "docid": "715261", "title": "", "text": "evidence that was not before the plan administrator for an abuse of discretion. See Dishman v. UNUM Life Ins. Co. of Am., 269 F.3d 974, 985 (9th Cir.2001); Friedrich, 181 F.3d at 1110-11. We review for clear error underlying findings of fact. Friedrich, 181 F.3d at 1109. III. The district court correctly ruled that the appropriate standard for review of the Plan’s denial of benefits is de novo. The district court reviews a challenge to an ERISA plan’s denial of benefits de novo “unless the benefit plan gives the administrator or fiduciary discretionary authority to determine eligibility for benefits or to construe the terms of the plan.” Firestone Tire & Rubber Co. v. Bruch, 489 U.S. 101, 115, 109 S.Ct. 948, 103 L.Ed.2d 80 (1989). We have held that the default standard of review in ERISA cases is de novo and that discretion exists only if it is “ ‘unambiguously retained.’ ” Kearney v. Standard Ins. Co., 175 F.3d 1084, 1090 (9th Cir.1999) (en banc) (quoting Bogue v. Ampex Corp., 976 F.2d 1319, 1325 (9th Cir.1992)). “We have held that ERISA plans are insufficient to confer discretionary authority on the administrator when they do not grant any power to construe the terms of the plan.” Abatie, 458 F.3d at 964. In Ingram v. Martin Marietta Long Term Disability Income Plan, 244 F.3d 1109, 1112-13 (9th Cir.2001), we concluded that even though the plan identified the carrier as “solely ... responsible” for providing benefits, deciding all claims, and controlling the operation and administration of the plan, “those provisions merely identified the plan administrator’s tasks, but bestowed no power to interpret the plan,” Abañe, 458 F.3d at 964, and therefore de novo review was appropriate. Here, the Plan nowhere states that the plan administrator, Northwest, has the full or sole discretion to interpret the terms of the plan. By its terms, the final decision as to eligibility is made not by Northwest, but by an independent mutually acceptable physician. Cf. Abatie, 458 F.3d at 965 (concluding that a plan conferred discretion because plan administrator had exclusive “responsibility to interpret the terms of" }, { "docid": "23405435", "title": "", "text": "syndrome. However, he is dubious that there are real experts in the area because of the very unique nature of the disease and its diagno sis. He was of the opinion that Snow was not afflicted with CFS. Standard then denied Snow’s claim on the ground that she did not meet the criteria for CFS as established by the Center for Disease Control. This litigation followed. JURISDICTION The district court had jurisdiction over this ERISA matter pursuant to 29 U.S.C. § 1132(e)(1) and 28 U.S.C. § 1331. We have jurisdiction pursuant to 28 U.S.C. § 1291. STANDARDS OF REVIEW In an ERISA case, there are two levels at which the standard of review must be considered. The first level involves the standard for the district court’s and our review of plan administrators’ determinations. The second involves the standard for our review of the district court’s determinations. We will first consider the first level. A determination that denies benefits under an ERISA plan is reviewed de novo “unless the benefit plan gives the administrator or fiduciary discretionary authority to determine eligibility for benefits or to construe the terms of the plan.” Firestone Tire & Rubber Co. v. Bruch, 489 U.S. 101, 115, 109 S.Ct. 948, 956-57, 103 L.Ed.2d 80 (1989). When discretion is conferred, the exercise of that discretion is reviewed under the arbitrary or capricious standard, or for abuse of discretion, which comes to the same thing. See Atwood v. Newmont Gold Co., Inc., 45 F.3d 1317, 1321 & n. 1 (9th Cir.1995); McKenzie v. General Tel. Co., 41 F.3d 1310, 1314 (9th Cir.1994), cert. denied, — U.S. -, 115 S.Ct. 1697, 131 L.Ed.2d 560 (1995); Taft v. Equitable Life Assurance Soc’y, 9 F.3d 1469, 1471 (9th Cir.1993). We have not been stingy in our determinations that discretion is conferred upon plan administrators. That is sensible because a proper and efficient functioning of an ERISA plan does often depend upon the use of discretion by the plan fiduciaries. As we have pointed out, a plan does confer discretion when it “includes even one important discretionary element, and the power to" }, { "docid": "23032338", "title": "", "text": "Ryan, 140 F.3d 850, 852 (9th Cir.1998). We review a district court’s evi-dentiary rulings for an abuse of discretion. See Russian River Watershed Protection Comm. v. City of Santa Rosa, 142 F.3d 1136, 1144 n. 6 (9th Cir.1998). In particular, a district court may abuse its discretion if it does not apply the correct law. See United States v. Sprague, 135 F.3d 1301, 1304 (9th Cir.1998); see also Koon v. United States, 518 U.S. 81, 100, 116 S.Ct. 2035, 135 L.Ed.2d 392 (1996) (“A district court by definition abuses its discretion when it makes an error of law.”). We review de novo an ERISA plan administrator’s decision to deny benefits “unless the benefit plan gives the administrator or fiduciary discretionary authority to determine eligibility for benefits or to construe the terms of the plan.” Firestone Tire & Rubber Co. v. Bruch, 489 U.S. 101, 115, 109 S.Ct. 948, 103 L.Ed.2d 80 (1989). When discretion is conferred, we generally review the exercise of that discretion for abuse of discretion. See Winters v. Costco Wholesale Corp., 49 F.3d 550, 552 (9th Cir.1995) (quoting Taft, 9 F.3d at 1471). If, however, the plan administrator is also the insurer “that conflict [of interest] must be weighed as a ‘facto[r] in determining whether there is an abuse of discretion.’ ” Snow, 87 F.3d at 330 (quoting Firestone, 489 U.S. at 115, 109 S.Ct. 948). Our review in such a circumstance, although still for abuse of discretion, is “less deferential.” Lang, 125 F.3d at 798 (citing Snow, 87 F.3d at 331). If, however, the program participant presents “material, probative evidence, beyond the mere fact of the apparent conflict, tending to show that the fiduciary’s self interest caused a breach of the administrator’s fiduciary obligations to the beneficiary,” Lang, 125 F.3d at 798 (quoting Atwood v. Newmont Gold Co., 45 F.3d 1317, 1322 (9th Cir.1995)), a rebuttable presumption arises in favor of the participant. The plan then “bears the burden of rebutting the presumption by producing evidence to show that the conflict of interest did not affect its decision to deny or terminate benefits.” Id. If the" }, { "docid": "23405436", "title": "", "text": "discretionary authority to determine eligibility for benefits or to construe the terms of the plan.” Firestone Tire & Rubber Co. v. Bruch, 489 U.S. 101, 115, 109 S.Ct. 948, 956-57, 103 L.Ed.2d 80 (1989). When discretion is conferred, the exercise of that discretion is reviewed under the arbitrary or capricious standard, or for abuse of discretion, which comes to the same thing. See Atwood v. Newmont Gold Co., Inc., 45 F.3d 1317, 1321 & n. 1 (9th Cir.1995); McKenzie v. General Tel. Co., 41 F.3d 1310, 1314 (9th Cir.1994), cert. denied, — U.S. -, 115 S.Ct. 1697, 131 L.Ed.2d 560 (1995); Taft v. Equitable Life Assurance Soc’y, 9 F.3d 1469, 1471 (9th Cir.1993). We have not been stingy in our determinations that discretion is conferred upon plan administrators. That is sensible because a proper and efficient functioning of an ERISA plan does often depend upon the use of discretion by the plan fiduciaries. As we have pointed out, a plan does confer discretion when it “includes even one important discretionary element, and the power to apply that element is unambiguously retained by its administrator.” Bogue v. Ampex Corp., 976 F.2d 1319, 1325 (9th Cir.1992), cert. denied, 507 U.S. 1031, 113 S.Ct. 1847, 123 L.Ed.2d 471 (1993). In Bogue that element was found in language in an employment severance plan which provided that the administrator would make determinations about similar employment positions within the company. Id. at 1324. In other words, if the plan administrator has the authority to determine eligibility for benefits, that inherently confers discretion upon him. See Patterson v. Hughes Aircraft Co., 11 F.3d 948, 949-50 (9th Cir.1993) (per curiam); Eley v. Boeing Co., 945 F.2d 276, 278 (9th Cir.1991); Madden v. ITT Long Term Disability Plan for Salaried Employees, 914 F.2d 1279, 1284-85 (9th Cir.1990), cert. denied, 498 U.S. 1087, 111 S.Ct. 964, 112 L.Ed.2d 1051 (1991). The plan before us provides that there will be no benefit payment unless Standard is presented with what it considers to be satisfactory written proof of the claimed loss. We see no relevant difference between that and plans which declare" }, { "docid": "22198605", "title": "", "text": "the two reports, the court held that Equitable had abused its discretion in terminating Taft’s benefits. II. The beneficiary of an ERISA plan may bring a civil action against a plan administrator “to recover benefits due to him under the terms of his plan, to enforce his rights under the terms of the plan, or to clarify his rights to future benefits under the terms of the plan.” 29 U.S.C. § 1132(a)(1)(B) (1988). Where the plan vests the administrator \"with discretionary authority to determine eligibility for benefits, however, a district court may review the administrator’s determinations only for an abuse of discretion. E.g., Firestone Tire & Rubber Co. v. Bruch, 489 U.S. 101, 115, 109 S.Ct. 948, 956, 103 L.Ed.2d 80 (1988); Eley v. Boeing Co., 945 F.2d 276, 278 (9th Cir.1991). Taft’s policy granted Equitable the discretionary authority “to construe and interpret the Plan, decide questions of eligibility and determine the amount, manner and time of payment of any distributions.” Therefore, the district court correctly applied the abuse of discretion test to review Equitable’s decision to terminate Taft’s benefits. See, e.g., Bogue v. Ampex Corp., 976 F.2d 1319, 1324-25 (9th Cir.1992), cert. denied, — U.S.—, 113 S.Ct. 1847, 123 L.Ed.2d 471 (1993). We review de novo the district court’s application of this standard and conclusion that Equitable abused its discretion. See Phillips v. Alaska Hotel & Restaurant Employees Pension Fund, 944 F.2d 509, 515 (9th Cir.1991), cert. denied, — U.S. —, 112 S.Ct. 1942, 118 L.Ed.2d 548 (1992). We hold that it was inappropriate for the district court to examine evidence at trial that was not part of Equitable’s administrative record and reverse because, based on the evidence that was in the administrative record, Equitable did not abuse its discretion in terminating Taft’s benefits. A. We have considered the scope of district court review of administrative discretion under ERISA only once since Firestone. In Jones v. Laborers Health & Welfare Trust Fund, 906 F.2d 480 (9th Cir.1990), we held that the abuse of discretion standard permits the district court to “review only the evidence presented to the [plan] trustees.”" }, { "docid": "11783951", "title": "", "text": "the benefit plan gives the administrator or fiduciary discretionary authority to determine eligibility for benefits or to construe the terms of the plan.” Firestone Tire & Rubber Co. v. Bruch, 489 U.S. 101, 115, 109 S.Ct. 948, 956, 103 L.Ed.2d 80 (1989); Dytrt v. Mountain State Tel. & Tel. Co., 921 F.2d 889, 894 (9th Cir.1990). When such discretion exists, the arbitrary and capricious standard applies. Dytrt, 921 F.2d at 894. “[I]f a benefit plan gives discretion to an administrator or fiduciary who is operating under a conflict of interest, that conflict must be weighed as a factor in determining whether there is an abuse of discretion.” Firestone, 489 U.S. at 115, 109 S.Ct. at 956 (internal quotation marks and alteration omitted); see also Bogue v. Ampex Corp., 976 F.2d 1319, 1325 n. 29 (9th Cir.1992) (“Because the great deference accorded a plan administrator arises in part from the assumption of trust law that the trustee has no pecuniary interest in his decisions, proof that the trustee does have such interest correspondingly strengthens the court’s level of review.”), cert. denied, — U.S. -, 113 S.Ct. 1847, 123 L.Ed.2d 471 (1993). The HOEP Plan delegates to the Committee the discretionary authority to interpret-the Plan’s provisions. However, the' district court properly reviewed the Committee’s interpretation under heightened scrutiny, since almost all the Committee members are WHC management employees. Firestone, 489 U.S. at 115, 109 S.Ct. at 956. In addition, the Watkinses submit that no deference is due to the Committee’s decision because that decision was mandated by DOE. We do not need to resolve this issue, however, because the record does not support the Watkinses’ argument. Although it is undisputed that WHC disagreed with DOE during the consolidation negotiations in 1987 about how the postconsolidation plan should calculate “credited service,” once the HOEP Plan was adopted, there is no evidence that DOE influenced the Committee’s interpretation of the Plan when it determined Watkins’s benefits in 1989. In any event, no matter whether the Committee’s determination is reviewed de novo or with some deference (factoring in the conflict of interest under which it" }, { "docid": "3455735", "title": "", "text": "review a district court’s choice and application of the standard of review applicable to a claims decision in the ERISA context de novo. See Taft v. Equitable Life Assurance Soc’y, 9 F.3d 1469, 1471 (9th Cir.1993). I Ms. Alford first contends that the district court improperly employed an abuse of discretion standard in its review of UNUM’s denial of benefits. She asserts that UNUM’s conflicted position as both plan administrator and funding source required the court to review the decision de novo. When an ERISA plan, like the one at issue here, explicitly vests its administrator with discretion to determine eligibility for benefits and to construe the terms of the plan, the district court ordinarily reviews the administrator’s determinations for abuse of discretion. See Firestone Tire & Rubber Co. v. Bruch, 489 U.S. 101, 115, 109 S.Ct. 948, 103 L.Ed.2d 80 (1989). The existence of a conflict of interest can, however, affect this degree of judicial deference. See id. (indicating that courts must weigh the conflict as a factor in determining whether an abuse of discretion has occurred). The showing of a conflict does not automatically eliminate the usual deference accorded to the plan administrator; rather, the plaintiff must show “that the conflict may have influenced the decision.” See Lang v. Long-Term Disability Plan of Sponsor Applied Remote Tech., Inc., 125 F.3d 794, 798 (9th Cir.1997). “To make such a showing, the affected beneficiary must come forward with ‘material, probative evidence, beyond the mere fact of the apparent conflict, tending to show that the fiduciary’s self interest caused a breach of the administrator’s fiduciary obligations to the beneficiary.’ ” Id. (quoting Atwood v. Newmont Gold Co., Inc., 45 F.3d 1317, 1323 (9th Cir.1995)). If the plaintiff makes this required showing, the plan then bears the burden of rebutting the presumption by producing evidence to show that the conflict did not affect its decision to deny benefits. See Atwood, 45 F.3d at 1323. If the plan fails to do so, the court should review its denial of benefits de novo. Id. We agree with the district court that Ms. Alford did" }, { "docid": "5743082", "title": "", "text": "§ 1132(a)(1)(B) is to be reviewed under a de novo standard unless the benefit plan gives the administrator or fiduciary discretionary authority to determine eligibility for benefits or to construe the terms of the plan.’ ” Kearney, 175 F.3d at 1089 (quoting Firestone, 489 U.S. at 115, 109 S.Ct. 948) (alteration in original). As we explained, “[t]hat means the default is that the administrator has no discretion, and the administrator has to show that the plan gives it discretionary authority in order to get any judicial deference to its decision.” Kearney, 175 F.3d at 1089. The Plan at issue in Kearney stated that Standard, the Plan Administrator, would pay disability benefits “upon receipt of satisfactory written proof that you have become DISABLED.” Standard argued that the word “satisfactory” implied discretion, but we held that it did not because the phrase is ambiguous. “Only by excluding alternative readings as unreasonable could we conclude that the conferral of discretion is unambiguous.” Kearney, 175 F.3d at 1090. Thus, a plan will not sufficiently confer discretion sufficient to invoke review for abuse of discretion just because it includes a discretionary element. Rather, the power to apply that element must also be “unambiguously retained” by the administrator. Id. (quoting Bogue v. Ampex Corp., 976 F.2d 1319, 1325 (9th Cir.1992), cert. denied, 507 U.S. 1031, 113 S.Ct. 1847, 123 L.Ed.2d 471 (1993)). Rebanee argues that its “satisfactory proof’ language is different from Standard’s in Kearney, and it is — but not meaningfully so. No matter how you slice it, requiring a claimant to submit “satisfactory proof’ does not unambiguously confer discretion under Kearney. See also Newcomb v. Standard Ins. Co., 187 F.3d 1004, 1006 (9th Cir.1999) (provision requiring “satisfactory written proof of loss” controlled by Kearney; and language providing that claimant must submit “written authorization for STANDARD to obtain the records and information needed to determine eligibility for LTD BENEFITS” does not unambiguously retain discretion because the primary function of this provision was to inform the claimant that he had to provide authorization, not to confer discretion). Nor, under Kearney, is discretion conferred by way of" }, { "docid": "23284352", "title": "", "text": "the Trustees’ interpretation of the CLPT plan, which states, first, that an application is a prerequisite for the receipt of benefits, and, second, that the plan does not permit retroactive payments. The district court held that the Trustees’ interpretation did not “clearly conflict with the plain language of the plan” and therefore was not “arbitrary and capricious.” Because we conclude reversal of the district court’s summary judgment order is warranted on the basis of the Retirees’ first claim, we need not reach their other two claims. In actions under 29 U.S.C. § 1132(a)(1)(B) to challenge the denial of benefits based on a plan administrator’s interpretation of a plan, the district court must review for abuse of discretion the benefits decisions of plan administrators and other fiduciaries to whom the plan grants “discretionary authority to determine eligibility for benefits or to construe the terms of the plan.” Firestone Tire & Rubber Co. v. Bruch, 489 U.S. 101, 115, 109 S.Ct. 948, 956-57, 103 L.Ed.2d 80 (1989). Accord Winters v. Costco Wholesale Corp., 49 F.3d 550, 552 (9th Cir.), cert. denied, — U.S. -, 116 S.Ct. 276, 133 L.Ed.2d 197 (1995). In this case, the trust agreement establishing the CLPT plan grants the Trustees discretion to construe the terms of the CLPT plan because it provides that the Trustees “shall have the power to administer the [CLPT] Fund[,]” including the power “to construe the provisions of ... the [CLPT] Plan[,]” and that “any such construction adopted by the Board in good faith shall be binding upon any and all parties or persons affected thereby.” We have construed comparable language in other plan provisions to confer interpretive discretion. See Eley v. Boeing Co., 945 F.2d 276, 278 (9th Cir.1991) (describing similar plan provisions). We review de novo the district court’s application of the abuse of discretion standard. Taft v. Equitable Life Assurance Soc’y, 9 F.3d 1469, 1471 (9th Cir.1993). We have equated the abuse of discretion standard with “arbitrary and capricious” review. Watkins v. Westinghouse Hanford Co., 12 F.3d 1517, 1524 (9th Cir.1993). Although ERISA creates a cause of action for plan participants" }, { "docid": "21229087", "title": "", "text": "63, 107 S.Ct. 1542, 95 L.Ed.2d 55 (1987); Parrino v. FHP, Inc., 146 F.3d 699, 703-04 (9th Cir.1998). Venue in the United States District Court for the Central District of California is invoked pursuant to 29 U.S.C. § 1132(e)(2). The parties do not dispute the facts requisite to federal jurisdiction and venue. II. Standard Of Review A “denial of benefits challenged under 29 U.S.C. § 1132(a)(1)(B) is to be reviewed under a de novo standard unless the benefit plan gives the administrator or fiduciary discretionary authority to determine eligibility for benefits or to construe the terms of the plan.” Firestone Tire & Rubber Co. v. Bruch, 489 U.S. 101, 115, 109 S.Ct. 948, 103 L.Ed.2d 80 (1989). Where the plan vests such discretionary authority in the administrator or fiduciary, the Court reviews the denial of benefits under the plan for an abuse of discretion. Id. However, in order for the abuse of discretion standard to apply, the Plan must unambiguously grant discretion to the administrator or fiduciary. Kearney v. Standard Ins. Co., 175 F.3d 1084, 1089 (9th Cir.1999). In this case, the Plan provides in relevant part that: The Plan administrator and other Plan fiduciaries shall have discretionary authority to interpret the terms of the Plan and to determine eligibility for and entitlement to Plan benefits in accordance with the terms of the Plan. Any interpretation or determination made pursuant to such discretionary authority shall be given full force and effect, unless it can be shown that the interpretation or determination was arbitrary and capricious. (AR 0102). The Court concludes that the foregoing language contained in the LTD Plan unambiguously grants discretion to MetLife. Once the Court concludes that the Plan vests discretionary authority in the administrator or fiduciary, the Court must determine whether the administrator or fiduciary is operating under a conflict of interest. Under the Ninth Circuit’s recent en banc decision in Abatie v. Alta Health & Life Ins. Co., 458 F.3d 955 (2006) in which the Ninth Circuit overruled Atwood v. Newmont Gold Co., Inc., 45 F.3d 1317 (1995), the “[a]buse of discretion [standard of] review applies" } ]

[ { "docid": "22206236", "title": "", "text": "result in a “miscarriage of justice.” Generally, this exception will apply only in extraordinary cases, i.e., “where a constitutional violation has probably resulted in the conviction of one who is actually innocent....” Id. at 496, 106 S.Ct. 2639. Thus, to establish a miscarriage of justice, the petitioner must prove that it is more likely than not that no reasonable juror would have convicted him. Schlup v. Delo, 513 U.S. 298, 326, 115 S.Ct. 851, 130 L.Ed.2d 808 (1995). III. With these principles in mind, we turn to the facts of this case. In his federal habeas petition, Werts claims his right to due process was violated by certain improper comments made by the prosecutor during opening and closing arguments. With regard to the vouching statements, this claim was not raised at trial, on direct appeal or in the state collateral review proceedings. Werts raises it for the first time in his federal habeas petition. Thus, although Werts has failed to exhaust his state remedies as to the vouching statements, he would be without a state corrective process if he were required to bring this claim in state court now. Indeed, he would be procedurally barred from obtaining state relief as his claim would be deemed waived under the PCRA, 42 Pa. Cons.Stat. Ann. § 9544(b) and/or barred by the one year statute of limitations under the PCRA, 42 Pa. Cons. Stat. Ann. § 9545(b). Under these circumstances, it would be futile to require exhaustion. Therefore, Werts is excused from the exhaustion requirement as to the vouching statements. Werts’ due process claim based on the prosecutor’s vouching statements, however, is not reviewable here, despite excusable exhaustion, because this claim is procedurally defaulted. Thus, we may not consider the merits of Werts’ due process argument regarding the vouching statements unless he has established “cause and prejudice” or a “fundamental miscarriage of justice.” We find that not only has Werts not proven these elements, he has not even alleged their existence as a basis for relief. Accordingly, in this federal habeas case, we are precluded from reviewing Werts’ due process claim predicated upon" } ]

[ { "docid": "16211553", "title": "", "text": "would violate the Suspension Clause contained in U.S. Const. Art. I, § 9 cl. 2, as well as the Eighth Amendment’s ban on cruel and unusual punishment. The Court therefore holds that an actual innocence exception exists to the statute of limitations contained within § 2244(d)(1). The Court now addresses petitioner’s actual innocence claim. The U.S. Supreme Court has indicated that “a claim of “actual innocence” is not itself a constitutional claim, but instead a gateway through which a habeas petitioner must pass to have his otherwise barred constitutional claim considered on the merits.” Herrera v. Collins, 506 U.S. 390, 404, 113 S.Ct. 853, 122 L.Ed.2d 203 (1993). The U.S. Supreme Court has indicated that “actual innocence” means factual innocence, not mere legal insufficiency. Bousley v. United States, 523 U.S. 614, 623, 118 S.Ct. 1604, 140 L.Ed.2d 828 (1998). The Supreme Court has also explained that “the miscarriage of justice exception [to the procedural default rule] is concerned with actual as compared to legal innocence.” Sawyer v. Whitley, 505 U.S. 333, 339, 112 S.Ct. 2514, 120 L.Ed.2d 269 (1992). Finally, in order for such a claim to be credible, “a claim of actual innocence must be based on reliable evidence not presented at trial.” Calderon v. Thompson, 523 U.S. 538, 559, 118 S.Ct. 1489, 140 L.Ed.2d 728 (1998)(quoting Schlup v. Delo, 513 U.S. 298, 324, 115 S.Ct. 851, 130 L.Ed.2d 808 (1995) [Emphasis added]). Finally, actual innocence “does not merely require a showing that a reasonable doubt exists in the light of the new evidence, but rather that no reasonable juror would have found the defendant guilty.” Schlup v. Delo, 513 U.S. at 329, 115 S.Ct. 851. This Court also notes that those courts that have recognized a freestanding actual innocence claim have held that a habeas petitioner asserting such a claim must go beyond demonstrating doubt about his or her guilt, and must affirmatively prove that he or she is probably innocent of the crime charged. Jackson v. Calderon, 211 F.3d 1148, 1165 (9th Cir.2000); cert. den. sub nom Woodford v. Jackson, 531 U.S. 1072, 121 S.Ct. 764, 148" }, { "docid": "13534428", "title": "", "text": "claim on direct appeal. The Court has further concluded that petitioner has failed to demonstrate cause and prejudice sufficient to excuse the default. Thus, applying the Maupin test, the Court concludes that ground one, sub-part (C) is procedurally defaulted. Beyond the four-part Maupin analysis, this Court is required to consider whether this is “an extraordinary case, where a constitutional violation has probably resulted in the conviction of one who is actually innocent....” Murray v. Carrier, supra, 477 U.S. at 496, 106 S.Ct. 2639. The “actual innocence” exception to procedural default applies whether the petitioner is asserting that he is actually innocent of the underlying crime for which he was convicted, or is challenging the aggravating circumstances that made him eligible for the death penalty. As the Sixth Circuit explained in Williams v. Bagley, 380 F.3d 932, 973 (6th Cir.2004): The “fundamental miscarriage of justice” gateway is open to a petitioner who submits new evidence showing that “a constitutional violation has probably resulted in the conviction of one who is actually innocent.” Schlup v. Delo, 513 U.S. 298, 327, 115 S.Ct. 851, 130 L.Ed.2d 808 (1995)(quoting Murray v. Carrier, 477 U.S. 478, 496, 106 S.Ct. 2639, 91 L.Ed.2d 397 (1986)). “To establish the requisite probability, the petitioner must show that it is more likely than not that no reasonable juror would have convicted him in light of the new evidence.” Id. The gateway is also available to a petitioner who demonstrates that he is “actually innocent” of the sentence of death that has been imposed on him. To establish his “innocence” of the death penalty, a petitioner must “show by clear and convincing evidence that, but for a constitutional error, no reasonable juror would have found the petitioner eligible for the death penalty under the applicable state law.” Sawyer v. Whitley, 505 U.S. 333, 336, 112 S.Ct. 2514, 120 L.Ed.2d 269 (1992). Williams v. Bagley, 380 F.3d at 973. Thus, the “actual innocence” exception to procedural default applies whether the petitioner is asserting that he is actually innocent of the underlying crime for which he was convicted, or is challenging the" }, { "docid": "21947328", "title": "", "text": "default, since, by definition, counsel’s performance in a collateral appeal cannot deny Petitioner a “right” to effective assistance of counsel. It follows, then, that Tice has defaulted each of his claims, and that he cannot establish cause with respect to those procedural defaults. Because he has failed to establish cause for his procedural defaults, the Court need not consider the question of actual prejudice. See Murray, 477 U.S. at 533, 106 S.Ct. 2661. b) Miscarriage of Justice Although Tice cannot demonstrate the necessary “cause” and “prejudice,” this Court may still review his claims if he can show that a “fundamental miscarriage of justice would result from a failure to entertain the claim.” McCleskey, 499 U.S. at 495, 111 S.Ct. 1454. This Court may use its discretion to correct a fundamental miscarriage of justice if it appears that a “constitutional violation probably resulted in the conviction of one who is actually innocent.” Murray, 477 U.S. at 496, 106 S.Ct. 2639. See also Coleman, 501 U.S. at 748, 111 S.Ct. 2546; McCleskey, 499 U.S. at 502, 111 S.Ct. 1454. Under the “miscarriage of justice” standard, a petitioner must present new evidence of innocence and persuade the district court that, in light of the new evidence, no juror, acting reasonably, would have voted to find him guilty beyond a reasonable doubt. Schlup v. Delo, 513 U.S. 298, 327, 115 S.Ct. 851, 130 L.Ed.2d 808 (1995). This is a stronger showing than is required to establish prejudice and is found only in a truly “extraordinary” case. Id. at 864. To succeed on a fundamental miscarriage of justice claim, a petitioner must invoke “reliable evidence not presented at trial,” Calderon v. Thompson, 523 U.S. 538, 559, 118 S.Ct. 1489, 140 L.Ed.2d 728 (1998), and “show that it is more likely than not that no reasonable juror would have convicted him in light of new evidence presented in his habeas petition.” Schlup, 513 U.S. at 327, 115 S.Ct. 851. It was to this end that this Court has held two evidentiary hearings in this case. 1) The Brady claim. The Court will first address Petitioner’s Brady" }, { "docid": "20462616", "title": "", "text": "that but for Callahan’s errors as to Katrina and Thomas the result of his trial would have been different. C. Perjured Testimony Claim Morales concedes that he proeedurally defaulted his claim that he was convicted on the prosecution’s knowing use of perjured testimony. He maintains, however, that his default should be excused to avoid a “fundamental miscarriage of justice.” See Coleman v. Thompson, 501 U.S. 722, 750, 111 S.Ct. 2546, 115 L.Ed.2d 640 (1991); Coleman v. Hardy, 628 F.3d 314, 318 (7th Cir.2010). He argues that his default may be excused because of his claim of actual innocence. Schlup v. Delo, 513 U.S. 298, 314-15, 115 S.Ct. 851, 130 L.Ed.2d 808 (1995); Hardy, 628 F.3d at 318. To obtain relief, Morales “must show that ‘in light of new evidence, it is more likely than not that no reasonable juror would find him guilty beyond a reasonable doubt.’ ” Hardy, 628 F.3d at 319 (quoting House v. Bell, 547 U.S. 518, 537, 126 S.Ct. 2064, 165 L.Ed.2d 1 (2006)). This standard requires a stronger showing than that required to establish Strickland prejudice. House, 547 U.S. at 571, 126 S.Ct. 2064 (Roberts, C.J., concurring in part and dissenting in part); Schlup, 513 U.S. at 327-29, 115 S.Ct. 851. Morales “must support the innocence claim ‘with new reliable evidence — whether it be exculpatory scientific evidence, trustworthy eyewitness accounts, or critical physical evidence — that was not presented at trial.’ ” Hardy, 628 F.3d at 319 (quoting Schlup, 513 U.S. at 324, 115 S.Ct. 851). We “consider all the evidence, old and new, and based on this total record, make a ‘probabilistic determination about what reasonable, properly instructed jurors would do.’ ” Id. (quoting House, 547 U.S. at 538, 126 S.Ct. 2064). We review de novo the district court’s determination that Morales’s procedural default should not be excused. See Holmes v. Hardy, 608 F.3d 963, 967 (7th Cir.2010). Morales first offers the alibi evidence from Thomas. The district court, having heard and seen Thomas testify, found that he was not a generally credible witness. The court specifically found that his alibi testimony was" }, { "docid": "9944969", "title": "", "text": "S.Ct. 2546, 115 L.Ed.2d 640 (1991). The miscarriage of justice exception, however, applies only to the case where the miscarriage is tied to the petitioner’s actual innocence. Schlup v. Delo, 513 U.S. 298, 321-22, 115 S.Ct. 851, 130 L.Ed.2d 808 (1995). In those “rare” or “extraordinary” cases, the “truly deserving” may receive relief by allowing “the principles of comity and finality, which animate the procedural default rule” to “yield to the imperative of correcting a fundamentally unjust incarceration.” Schlup v. Delo, 513 U.S. at 319-21, 115 S.Ct. 851. The “prototypical example” of the application of the “actual innocence” exception is where a petitioner is innocent of all criminal wrongdoing, such as where he claims that the government has convicted the wrong person for the crime. See Sawyer v. Whitley, 505 U.S. 333, 340, 112 S.Ct. 2514, 120 L.Ed.2d 269 (1992). Nevertheless, the Court has recognized that the exception can be extended to cases where the defendant claims to be “innocent of the death penalty.” Id. at 340-41, 112 S.Ct. 2514. To qualify for this exception, a petitioner “must show by clear and convincing evidence that no reasonable juror would have found him eligible for the death penalty in light of the new evidence.” Calderon v. Thompson, 523 U.S. 538, 560, 118 S.Ct. 1489, 140 L.Ed.2d 728 (1998) (internal quotations omitted). The District Court relied on this exception to excuse Johnson’s procedural default and to permit a consideration of Johnson’s claim on the merits. The court concluded that Johnson was actually innocent of the death penalty and that the miscarriage of justice was that he was “wrongfully exposed to a pro forma capital sentencing hearing,” even though he was actually sentenced to life imprisonment, (emphasis added). There is no dispute that Johnson, at a minimum, is guilty of felony murder. He does not deny suffocating the victim in the course of a robbery. Rather, the District Court’s holding rests on the assumption that he was “innocent” of a capital crime. This first proposition is disputed and arguably incorrect. While Johnson pled guilty to felony murder, a crime which was wrongly believed" }, { "docid": "21947329", "title": "", "text": "S.Ct. 1454. Under the “miscarriage of justice” standard, a petitioner must present new evidence of innocence and persuade the district court that, in light of the new evidence, no juror, acting reasonably, would have voted to find him guilty beyond a reasonable doubt. Schlup v. Delo, 513 U.S. 298, 327, 115 S.Ct. 851, 130 L.Ed.2d 808 (1995). This is a stronger showing than is required to establish prejudice and is found only in a truly “extraordinary” case. Id. at 864. To succeed on a fundamental miscarriage of justice claim, a petitioner must invoke “reliable evidence not presented at trial,” Calderon v. Thompson, 523 U.S. 538, 559, 118 S.Ct. 1489, 140 L.Ed.2d 728 (1998), and “show that it is more likely than not that no reasonable juror would have convicted him in light of new evidence presented in his habeas petition.” Schlup, 513 U.S. at 327, 115 S.Ct. 851. It was to this end that this Court has held two evidentiary hearings in this case. 1) The Brady claim. The Court will first address Petitioner’s Brady claim, in which he asserts that the Commonwealth should have disclosed to him the existence and content of Tice’s own juvenile detention records. It is manifest from the record in this case, including the testimony elicited during the evidentiary hearings before this Court, that Tice’s records were available to Tice himself prior to trial. Indeed, Tice’s ineffective assistance claim is premised upon the assertion that trial counsel could easily have obtained those records had he attempted to do so. A similar situation was recently addressed by the Court of Appeals for the Fifth Circuit: [Petitioner] contends that the prosecution abridged his due process right by failing to provide medical records from the county jail that detailed the numerous psychotropic medications he was taking while incarcerated and awaiting trial. Due process is violated when the prosecution withholds material evidence favorable to the defense. Brady v. Maryland, 373 U.S. 83, 87, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963). The state, however, bears no responsibility to direct the defense toward potentially exculpatory evidence that either is in the" }, { "docid": "16813435", "title": "", "text": "has resulted in the conviction of someone who is actually innocent”). To meet this standard, a petitioner must “show that it is more likely than not that no reasonable juror would have convicted him” of the underlying offense. Schlup v. Delo, 513 U.S. 298, 327, 115 S.Ct. 851, 130 L.Ed.2d 808 (1995). In addition, “ ‘to be credible,’ a claim of actual innocence must be based on reliable evidence not presented at trial.” Calderon v. Thompson, 523 U.S. 538, 559, 118 S.Ct. 1489, 140 L.Ed.2d 728 (1998) (quoting Schlup, 513 U.S. at 324; 115 S.Ct. 851). Fortenberry argues that the district court erred because he satisfies both of these exceptions. We disagree. Fortenberry has not presented persuasive evidence of his actual innocence, and thus we reject his fundamental miscarriage of justice claim. Fortenberry argues that he can establish cause because, he says, his counsel rendered ineffective assistance by failing to raise the HAC issue at trial and on appeal. Fortenberry argues that he can demonstrate prejudice because he is likely to have succeeded on the claim. Neither argument is persuasive because it is clear that the HAC claim is ultimately without merit. Under Alabama’s current death-penalty statute, following a jury verdict in the guilt phase, the trial court conducts a sentencing phase in which the jury is presented with evidence of aggravating and mitigating factors. See Ala.Code 1975 § 13A-5-46. Having considered this evidence, the jury then issues an “advisory verdict.” Id. Then, in a separate sentencing hearing, the judge weighs the aggravating and miti gating factors to arrive at a sentence. Ala. Code 1975 § 13A-5-47(a) et seq. In so doing, the judge must “consider” the jury’s recommendation, but is not bound by it. See Ala.Code 1975 § 13A-6-47(e). In addition, the judge must issue, in -writing, specific findings with regard to each of the aggravating and mitigating factors that lead to the sentence. See Ala.Code 1975 § 13A-5-47(d). There is no dispute in this case that the sentencing judge did not find the HAC factor; the judge determined that a single aggravating factor — that Fortenberry committed murder" }, { "docid": "427906", "title": "", "text": "state ground to establish Phillips’ procedural default. Phillips argues in the alternative that his state procedural default should be excused to prevent a fundamental miscarriage of justice. However, the fundamental miscarriage of justice exception is an “extremely narrow exception, implicated only in ‘an extraordinary case, where a constitutional violation has probably resulted in the conviction of one who is actually innocent.’ ” Ballinger v. Kerby, 3 F.3d 1371, 1375 (10th Cir.1993) (quoting Murray v. Carrier, 477 U.S. 478, 496, 106 S.Ct. 2639, 91 L.Ed.2d 397 (1986)). To prevail, Phillips must identify evidence that affirmatively demonstrates his innocence. See Schlup v. Delo, 513 U.S. 298, 327, 115 S.Ct. 851, 130 L.Ed.2d 808 (1995). A criminal defendant is required to provide evidence that does more than simply “undermine the finding of guilt against” him or her. Ballinger, 3 F.3d at 1375. After carefully reviewing the record, we conclude that Phillips has not presented us with evidence of actual innocence establishing that “it is more likely than not that no reasonable juror would have convicted him in light of the new evidence,” Schlup, 513 U.S. at 327, 115 S.Ct. 851, particularly given testimony by the victim that details Phillips’ involvement in the crime. Finding no fundamental miscarriage of justice, and because Phillips failed to assert “cause and prejudice” for his state default, the district court correctly held that it was barred from considering Phillips’ habeas petition on the merits. C. The District Court’s Denial of Phillips’ “Motion for Extension of Time” to File a Surrebuttal Before the district court dismissed Phillips’ habeas petition, Phillips had filed a motion for a continuance for more time to file a surrebuttal. Phillips contends on appeal that he wanted more time to file a surrebuttal in order to present to the court additional evidence of factual innocence. The district court denied the continuance and we find no error. “[Bjroad discretion must be granted trial courts on matters of continuances.” Morris v. Slappy, 461 U.S. 1, 11, 103 S.Ct. 1610, 75 L.Ed.2d 610 (1983); see also United States v. Rivera, 900 F.2d 1462, 1475 (10th Cir.1990). “A trial" }, { "docid": "13534429", "title": "", "text": "U.S. 298, 327, 115 S.Ct. 851, 130 L.Ed.2d 808 (1995)(quoting Murray v. Carrier, 477 U.S. 478, 496, 106 S.Ct. 2639, 91 L.Ed.2d 397 (1986)). “To establish the requisite probability, the petitioner must show that it is more likely than not that no reasonable juror would have convicted him in light of the new evidence.” Id. The gateway is also available to a petitioner who demonstrates that he is “actually innocent” of the sentence of death that has been imposed on him. To establish his “innocence” of the death penalty, a petitioner must “show by clear and convincing evidence that, but for a constitutional error, no reasonable juror would have found the petitioner eligible for the death penalty under the applicable state law.” Sawyer v. Whitley, 505 U.S. 333, 336, 112 S.Ct. 2514, 120 L.Ed.2d 269 (1992). Williams v. Bagley, 380 F.3d at 973. Thus, the “actual innocence” exception to procedural default applies whether the petitioner is asserting that he is actually innocent of the underlying crime for which he was convicted, or is challenging the aggravating circumstances that made him eligible for the death penal ty. The standard of proof that he must satisfy depends upon the challenge he is making. Calderon v. Thompson, 523 U.S. 538, 559, 118 S.Ct. 1489, 140 L.Ed.2d 728 (1998). Claims challenging the petitioner’s conviction for the underlying crime are governed by Schlup’s more lenient “more likely than not” standard. Calderon, 523 U.S. at 559, 118 S.Ct. 1489. Claims challenging the petitioner’s eligibility for the death penalty are governed by Sawyer’s more exacting “clear and convincing” standard — -this is true even where the petitioner’s claim challenges an element of the underlying offense that has the effect of enhancing the underlying offense to a capital offense, thereby making the petitioner eligible for the death penalty. Calderon, 523 U.S. at 559-560, 118 S.Ct. 1489. In Calderon, the Supreme Court emphasized: The Sawyer standard has a broader application than is first apparent. As the Court explained in Schlup, when a capital petitioner challenges his underlying capital murder conviction on the basis of an element that “function[s] essentially" }, { "docid": "16813434", "title": "", "text": "the procedural default under either of the two recognized exceptions to the rule. First, a petitioner may obtain federal review of a procedurally defaulted claim if he can show both cause for the default and actual prejudice resulting from the default. See Murray v. Carrier, 477 U.S. 478, 488, 106 S.Ct. 2639, 91 L.Ed.2d 397 (1986); Wainwright v. Sykes, 433 U.S. 72, 97 S.Ct. 2497, 53 L.Ed.2d 594 (1977); Smith v. Newsome, 876 F.2d 1461, 1465 (11th Cir.1989). A petitioner can establish cause by showing that a procedural default was caused by constitutionally ineffective assistance of counsel under Strickland v. Washington, 466 U.S. 668, 690, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). See Carrier, 477 U.S. at 488, 106 S.Ct. 2639. Second, a federal court may also grant a habeas petition on a procedurally defaulted claim, without a showing of cause or prejudice, to correct a fundamental miscarriage of justice. See Carrier, 477 U.S. at 495-96, 106 S.Ct. 2678 (explaining that a “fundamental miscarriage of justice” occurs “in an extraordinary case, where a constitutional violation has resulted in the conviction of someone who is actually innocent”). To meet this standard, a petitioner must “show that it is more likely than not that no reasonable juror would have convicted him” of the underlying offense. Schlup v. Delo, 513 U.S. 298, 327, 115 S.Ct. 851, 130 L.Ed.2d 808 (1995). In addition, “ ‘to be credible,’ a claim of actual innocence must be based on reliable evidence not presented at trial.” Calderon v. Thompson, 523 U.S. 538, 559, 118 S.Ct. 1489, 140 L.Ed.2d 728 (1998) (quoting Schlup, 513 U.S. at 324; 115 S.Ct. 851). Fortenberry argues that the district court erred because he satisfies both of these exceptions. We disagree. Fortenberry has not presented persuasive evidence of his actual innocence, and thus we reject his fundamental miscarriage of justice claim. Fortenberry argues that he can establish cause because, he says, his counsel rendered ineffective assistance by failing to raise the HAC issue at trial and on appeal. Fortenberry argues that he can demonstrate prejudice because he is likely to have succeeded on the" }, { "docid": "16211554", "title": "", "text": "120 L.Ed.2d 269 (1992). Finally, in order for such a claim to be credible, “a claim of actual innocence must be based on reliable evidence not presented at trial.” Calderon v. Thompson, 523 U.S. 538, 559, 118 S.Ct. 1489, 140 L.Ed.2d 728 (1998)(quoting Schlup v. Delo, 513 U.S. 298, 324, 115 S.Ct. 851, 130 L.Ed.2d 808 (1995) [Emphasis added]). Finally, actual innocence “does not merely require a showing that a reasonable doubt exists in the light of the new evidence, but rather that no reasonable juror would have found the defendant guilty.” Schlup v. Delo, 513 U.S. at 329, 115 S.Ct. 851. This Court also notes that those courts that have recognized a freestanding actual innocence claim have held that a habeas petitioner asserting such a claim must go beyond demonstrating doubt about his or her guilt, and must affirmatively prove that he or she is probably innocent of the crime charged. Jackson v. Calderon, 211 F.3d 1148, 1165 (9th Cir.2000); cert. den. sub nom Woodford v. Jackson, 531 U.S. 1072, 121 S.Ct. 764, 148 L.Ed.2d 665 (2001). The Fourth Circuit has also noted that claims of actual innocence made by a habeas corpus petitioner, whether presented as freestanding ones, or merely as gateways to excuse a procedural default, “should not be granted casually.” Wilson v. Greene, 155 F.3d 396, 404 (4th Cir.1998). Turning now to petitioner’s ease, this Court concludes that petitioner has failed to establish that he is actually innocent of first degree murder. Petitioner has presented no new, reliable evidence to show that he is actually innocent of these crimes. Several courts have declined to toll the limitations period contained in the AEDPA under an “actual innocence” exception, where the petitioner offered no new or reliable evidence in support of his claim. Smith v. Stegall, 141 F.Supp.2d 779, 784 (E.D.Mich.2001); Thomas v. Straub, 10 F.Supp.2d at 836. Instead, petitioner claims that the evidence at trial was insufficient to establish either that he was the person who shot and killed the victim or that he acted with the requisite premeditation or deliberation necessary for first degree murder. Although" }, { "docid": "11289464", "title": "", "text": "are not persuaded. Even if Hargrave-Thomas had no meaningful communication with her trial attorneys about the preparation of her case, she knew from her attendance at trial that the attorneys did not call any witnesses — a fact that might easily lead one to suspect inadequate preparation. Moreover, the attorney representing Ms. Hargrave-Thomas after the trial could have interviewed the trial attorneys to discover any potential claims. And Har-grave-Thomas was able to raise the failure-to-investigate claim in her motion for relief from judgment, after all, without having had the benefit of an evidentiary hearing. We are not persuaded, in short, that the state courts’ refusal to order a Ginther hearing constituted “cause” for Ms. Har-grave-Thomas’ procedural default. Both “cause” and “prejudice” must be shown when a habeas petitioner seeks to excuse a procedural default, see Carrier, 477 U.S. at 494-96, 106 S.Ct. 2639, so we need not decide whether Hargrave-Thomas has shown “prejudice” resulting from her trial attorneys’ alleged failure to investigate. See Smith v. Murray, 477 U.S. 527, 533, 106 S.Ct. 2661, 91 L.Ed.2d 434 (1986). C As we have said, a procedurally defaulted claim may be reviewed in habeas proceedings despite the absence of a showing of “cause” if such review is necessary to avoid a fundamental miscarriage of justice. See, e.g., Coleman, 501 U.S. at 750, 111 S.Ct. 2546. The “fundamental miscarriage of justice” test is met only in the “extraordinary case” where “a constitutional violation has probably resulted in the conviction of one who is actually innocent.” Carrier, 477 U.S. at 496, 106 S.Ct. 2639; see Schlup v. Delo, 513 U.S. 298, 321-22, 115 S.Ct. 851, 130 L.Ed.2d 808 (1995). “To establish the requisite probability, the petitioner must show that it is more likely than not that no reasonable juror would have convicted him” in the light of the evidence that was not presented at trial. Schlup, 513 U.S. at 327, 115 S.Ct. 851. Applying this standard, we are unable to conclude that Ms. HargraveThomas has shown it probable that she is actually innocent. Hargrave-Thomas relies primarily on five affidavits, each of which was executed about" }, { "docid": "20309529", "title": "", "text": "the alleged constitutional errors during the criminal proceedings in the Superior Court with an assertion of his actual innocence. (See Pet’r Opp’n at 13-17; Movant[’]s Traverse to Respondent[’]s Resp. on Pet. for Habeas Corpus (“Traverse”) at 8-12.) In “extraordinary instances when a constitutional violation probably has caused the conviction of one innocent of the crime,” a federal court may entertain a habeas action “despite a petitioner’s failure to show cause for a procedural default.” McCleskey v. Zant, 499 U.S. 467, 494, 111 S.Ct. 1454, 113 L.Ed.2d 517 (1991); Adams argues that his case falls within the “narrow class of cases” in which a “constitutional violation probably has caused the conviction of one innocent of the crime ... implicating a fundamental miscarriage of justice.” Id.; see Schlup, 513 U.S. at 321, 115 S.Ct. 851 (“To ensure that the fundamental miscarriage of justice exception would remain ‘rare’ and would only be applied in the ‘extraordinary case’ while at the same time ensuring that the exception would extend relief to those who were truly deserving, this Court explicitly tied the miscarriage of justice exception to the petitioner’s innocence.”). “To be credible, ... a claim [of actual innocence] requires petitioner to support his allegations of constitutional error with new reliable evidence— whether it be exculpatory scientific evidence, trustworthy eyewitness accounts, or critical physical evidence — that was not presented at trial.” Schlup, 513 U.S. at 324, 115 S.Ct. 851. Where, as here, a “petitioner asserts his actual innocence of the underlying crime, he must show ‘it is more likely than not that no reasonable juror would have convicted him in light of the new evidence’ presented in his habeas petition.” Calderon v. Thompson, 523 U.S. 538, 559, 118 S.Ct. 1489, 140 L.Ed.2d 728 (1998) (quoting Schlup, 513 U.S. at 327, 115 S.Ct. 851). Adams’s evidence of actual innocence comes by way of affidavits from Carl Clark and Jackie Wilson, both of whom place Adams in the vicinity of 56th Street and Central Avenue, S.E., in Washington D.C., around the time of Hamilton’s murder. (See Pet., Ex. C (Aff. of Carl Clark) ¶2; id., Ex." }, { "docid": "23212742", "title": "", "text": "Schlup v. Delo, 513 U.S. 298, 326-27, 115 S.Ct. 851, 130 L.Ed.2d 808 (1995); Sawyer v. Whitley, 505 U.S. 333, 340, 112 S.Ct. 2514, 120 L.Ed.2d 269 (1992). Thus, to excuse procedural default, Williams must “show that ‘a constitutional violation has probably resulted in the conviction of one who is actually innocent,’ ” Sawyer, 505 U.S. at 340, 112 S.Ct. 2514 (quoting Murray v. Carrier, 477 U.S. 478, 496, 106 S.Ct. 2639, 91 L.Ed.2d 397 (1986)), or, in other words, he must “demonstrate that more likely than not, in light of the new evidence, no reasonable juror would find him guilty beyond a reasonable doubt.” House, 547 U.S. at 538, 126 S.Ct. 2064. Williams states that a week after the district court entered judgment in his habeas petition, his counsel received a phone message from David Brown, a drug treatment sponsor in Houston, Texas, who sponsored an individual named Jervette Jenkins. Williams’s counsel reported that, as part of Jenkins’s rehabilitation, Jenkins told Brown that he had killed a police officer in 1999, and that he knew someone named Jeffrey was sentenced to death for the murder. Brown, in a handwritten affidavit, stated that he had no reason to lie, that he thought Jenkins had told him the truth, and that he would help the police in any way he could. Brown does not know Williams, and to this day, no one has been able to locate Jenkins. Brown and Williams both concede that Jenkins’s purported confession contains several factual inaccuracies, such as the location of the motel where Blando was shot and the circumstances under which Blando’s murder occurred, which tends to discredit Jenkins’s claim of guilt. In contrast, the State introduced overwhelming evidence of Williams’s guilt at trial, including (1) the testimony of two eyewitnesses who stated that they observed Williams shoot Blando; (2) evidence that when police apprehended Williams, he still wore Blando’s handcuffs and possessed a gun that matched the bullet extracted from Blando’s body; (8) Williams’s two separate confessions; and (4) evidence of Williams’s fingerprints on both the stolen Lexus and Blando’s unmarked Jeep Cherokee. Most" }, { "docid": "21947282", "title": "", "text": "446, 451, 120 S.Ct. 1587, 146 L.Ed.2d 518 (2000); Coleman v. Thompson, 501 U.S. 722, 750, 111 S.Ct. 2546, 115 L.Ed.2d 640 (1991); Carter v. Vaughn, 62 F.3d 591, 595 (3d Cir.1995). A federal court may exercise its discretion to correct a fundamental miscarriage of justice if it appears that a “constitutional violation probably resulted in the conviction of one who is actually innocent.” Murray v. Carrier, 477 U.S. 478, 496, 106 S.Ct. 2639, 91 L.Ed.2d 397 (1986). See also Coleman, 501 U.S. at 748, 111 S.Ct. 2546; McCleskey v. Zant, 499 U.S. 467, 502, 111 S.Ct. 1454, 113 L.Ed.2d 517 (1991). Under the “miscarriage of justice” standard, a petitioner must present new evidence of innocence to persuade the district court that, in light of the new evidence, no juror, acting reasonably, would have voted to find him guilty beyond a reasonable doubt. Schlup v. Delo, 513 U.S. 298, 327, 115 S.Ct. 851, 130 L.Ed.2d 808 (1995). To succeed on a fundamental miscarriage of justice argument, a petitioner must invoke “reliable evidence not presented at trial,” Calderon v. Thompson, 523 U.S. 538, 559, 118 S.Ct. 1489, 140 L.Ed.2d 728 (1998), to “show that it is more likely than not that no reasonable juror would have convicted him in light of new evidence presented in his habeas petition.” Schlup, 513 U.S. at 327, 115 S.Ct. 851. The Schlup standard “for proving actual innocence is far more demanding than establishing the existence of a reasonable doubt.” Mattis v. Vaughn, 80 Fed.Appx. 154, 159 (3d Cir.2003). Only after the Schlup standard is satisfied may the federal court examine the merits of the procedurally defaulted claim, in this case, the ineffective assistance of trial counsel for failure to investigate. In her second Report and Recommendation, Magistrate Judge Baxter concluded that trial counsel’s ineffectiveness in his failure to investigate Petitioner’s whereabouts met the Schlup standard as to the date specific charge, i.e. August 9-11th (and ultimately that the claim warranted habeas relief on its merits under Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984)). Magistrate Judge Baxter examined the Hermitage" }, { "docid": "11289465", "title": "", "text": "434 (1986). C As we have said, a procedurally defaulted claim may be reviewed in habeas proceedings despite the absence of a showing of “cause” if such review is necessary to avoid a fundamental miscarriage of justice. See, e.g., Coleman, 501 U.S. at 750, 111 S.Ct. 2546. The “fundamental miscarriage of justice” test is met only in the “extraordinary case” where “a constitutional violation has probably resulted in the conviction of one who is actually innocent.” Carrier, 477 U.S. at 496, 106 S.Ct. 2639; see Schlup v. Delo, 513 U.S. 298, 321-22, 115 S.Ct. 851, 130 L.Ed.2d 808 (1995). “To establish the requisite probability, the petitioner must show that it is more likely than not that no reasonable juror would have convicted him” in the light of the evidence that was not presented at trial. Schlup, 513 U.S. at 327, 115 S.Ct. 851. Applying this standard, we are unable to conclude that Ms. HargraveThomas has shown it probable that she is actually innocent. Hargrave-Thomas relies primarily on five affidavits, each of which was executed about six years after the events at issue. None of the affiants testified live at the hearing on the habeas petition. According to the affidavit of Deborah Smulsky, a co-worker, Ms. Hargrave-Thomas said on the day before the murder that the decedent, Joe Bernal, had proposed marriage the previous night. Har-grave-Thomas argues that this evidence undercuts the prosecution’s theory as to motive — namely, that Bernal had spurned Hargrave-Thomas. But there is no necessary conflict between Ms. Smulsky’s testimony and the prosecution’s theory. Har-grave-Thomas could have misled Smulsky'. Or Bernal could have proposed one day and retracted the proposal the next. Because Smulsky’s testimony does not compel a finding that Hargrave-Thomas lacked motive, we think a reasonable fact-finder could have convicted Hargrave-Thomas despite the new evidence. Ms.' Hargrave-Thomas’ sons, Nathan and John, said in their affidavits that their mother awoke them on the day of the murder at 6:15 a.m. and 6:80 a.m. respectively, and that she seemed to be behaving normally then. Dennis Hewitt, Nathan’s guidance counselor, similarly swore that Hargrave-Thomas was not upset or" }, { "docid": "23212741", "title": "", "text": "standard, Williams’s new evidence does not persuade us that “but for a violation of the United States Constitution no rational juror could have found [him] guilty beyond a reasonable doubt.” Id. § 5(a)(2). ii. Actual Innocence of Blando’s Murder as Cause for Excusing Procedural Default Williams argues that because new evidence tending to exonerate him from Blando’s murder has come to light, the district court should review his procedurally defaulted IAC at sentencing claim. “Federal habeas review of procedurally defaulted claims is barred ‘unless the prisoner can demonstrate cause for the default and actual prejudice as a result of the alleged violation of federal law, or demonstrate that failure to consider the claims will result in a fundamental miscarriage of justice.’ ” Hughes v. Quarterman, 530 F.3d 336, 341 (5th Cir.2008) (quoting Coleman v. Thompson, 501 U.S. 722, 750, 111 S.Ct. 2546, 115 L.Ed.2d 640 (1991)). The “miscarriage of justice” exception applies where a petitioner is “actually innocent” of either the offense giving rise to his conviction or “actually innocent” of the death penalty. See Schlup v. Delo, 513 U.S. 298, 326-27, 115 S.Ct. 851, 130 L.Ed.2d 808 (1995); Sawyer v. Whitley, 505 U.S. 333, 340, 112 S.Ct. 2514, 120 L.Ed.2d 269 (1992). Thus, to excuse procedural default, Williams must “show that ‘a constitutional violation has probably resulted in the conviction of one who is actually innocent,’ ” Sawyer, 505 U.S. at 340, 112 S.Ct. 2514 (quoting Murray v. Carrier, 477 U.S. 478, 496, 106 S.Ct. 2639, 91 L.Ed.2d 397 (1986)), or, in other words, he must “demonstrate that more likely than not, in light of the new evidence, no reasonable juror would find him guilty beyond a reasonable doubt.” House, 547 U.S. at 538, 126 S.Ct. 2064. Williams states that a week after the district court entered judgment in his habeas petition, his counsel received a phone message from David Brown, a drug treatment sponsor in Houston, Texas, who sponsored an individual named Jervette Jenkins. Williams’s counsel reported that, as part of Jenkins’s rehabilitation, Jenkins told Brown that he had killed a police officer in 1999, and that he" }, { "docid": "23168645", "title": "", "text": "To show cause, a petitioner must prove that “some objective factor external to the defense impeded counsel’s efforts” to raise the claim previously. Id. at 488, 106 S.Ct. at 2645. Once cause is proved, a petitioner also must prove prejudice. He must show “not merely that the errors at his trial created a possibility of prejudice, but that they worked to his actual and substantial disadvantage, infecting his entire trial with error of constitutional dimensions.” United States v. Frady, 456 U.S. 152, 170, 102 S.Ct. 1584, 1596, 71 L.Ed.2d 816 (1982) (emphasis in original). If a petitioner cannot show cause, he may still survive a procedural bar by proving that the failure to hear the merits of his claim would endorse a fundamental miscarriage of justice. See Murray, 477 U.S. at 495, 106 S.Ct. at 2649. This exception is exceedingly narrow in scope, as it concerns a petitioner’s “actual” innocence rather than his “legal” innocence. See Calderon v. Thompson, 523 U.S. 538, 559, 118 S.Ct. 1489, 1502-03, 140 L.Ed.2d 728 (1998); Murray, 477 U.S. at 495-96, 106 S.Ct. at 2649 (explaining that a “fundamental miscarriage of justice” occurs “in an extraordinary case, where a constitutional violation has resulted in the conviction of someone who is actually innocent”). To meet this standard, a petitioner must “show that it is more likely than not that no reasonable juror would have convicted him” of the underlying offense. Schlup v. Delo, 513 U.S. 298, 327, 115 S.Ct. 851, 867, 130 L.Ed.2d 808 (1995). In addition, “ ‘[t]o be credible,’ a claim of actual innocence must be based on reliable evidence not presented at trial.” Calderon, 523 U.S. at 559, 118 S.Ct. at 1502-03 (quoting Schlup, 513 U.S. at 324, 115 S.Ct. at 865) (explaining that “[g]iven the rarity of such evidence, in virtually every case, the allegation of actual innocence has been summarily rejected” (internal quotation marks omitted)). Neither exception to the procedural bar rule applies in this case. Johnson’s only “cause and prejudice” argument stems from his appellate counsel’s purportedly ineffective assistance in failing to litigate on appeal the intent issue. As discussed" }, { "docid": "8945920", "title": "", "text": "F.3d 533, 541 (6th Cir.2001). His appellate counsel was not deficient for failing to raise the proeedurallydefaulted claims as these claims are not clearly stronger than the claims raised by his appellate counsel on direct appeal. Moreover, we have reviewed the substance of Williams’s procedurally defaulted claims and have determined that each of them lacks merit. Thus, he suffered no prejudice from his appellate counsel’s performance. See Buell, 274 F.3d at 352. And because Williams has not established a constitutional violation of his right to counsel, his counsel’s performance cannot serve as “cause” for his procedural defaults. Momo, 281 F.3d at 577. F. “Fundamental Miscarriage of Justice” Gateway The district court properly concluded that Williams cannot escape his procedural defaults by means of the “fundamental miscarriage of justice” gateway. A habeas petitioner can overcome a procedural default by demonstrating that “failure to consider the claims will result in a fundamental miscarriage of justice.” Coleman, 501 U.S. 722, 750, 111 S.Ct. 2546, 115 L.Ed.2d 640 (1991). The “fundamental miscarriage of justice” gateway is open to a petitioner who submits new evidence showing that “a constitutional violation has probably resulted in the conviction of one who is actually innocent.” Schlup v. Delo, 513 U.S. 298, 327, 115 S.Ct. 851, 130 L.Ed.2d 808 (1995) (quoting Murray v. Carrier, 477 U.S. 478, 496, 106 S.Ct. 2639, 91 L.Ed.2d 397 (1986)). “To establish the requisite probability, the petitioner must show that it is more likely than not that no reasonable juror would have convicted him in light of the new evidence.” Id. The gateway is also available to a petitioner who demonstrates that he is “actually innocent” of the sentence of death that has been imposed on him. To establish his “innocence” of the death penalty, a petitioner must “show by clear and convincing evidence that, but for a constitutional error, no reasonable juror would have found the petitioner eligible for the death penalty under the applicable state law.” Sawyer v. Whitley, 505 U.S. 333, 336, 112 S.Ct. 2514, 120 L.Ed.2d 269 (1992). Importantly, a claim of innocence in this context is “not itself a" }, { "docid": "20309530", "title": "", "text": "tied the miscarriage of justice exception to the petitioner’s innocence.”). “To be credible, ... a claim [of actual innocence] requires petitioner to support his allegations of constitutional error with new reliable evidence— whether it be exculpatory scientific evidence, trustworthy eyewitness accounts, or critical physical evidence — that was not presented at trial.” Schlup, 513 U.S. at 324, 115 S.Ct. 851. Where, as here, a “petitioner asserts his actual innocence of the underlying crime, he must show ‘it is more likely than not that no reasonable juror would have convicted him in light of the new evidence’ presented in his habeas petition.” Calderon v. Thompson, 523 U.S. 538, 559, 118 S.Ct. 1489, 140 L.Ed.2d 728 (1998) (quoting Schlup, 513 U.S. at 327, 115 S.Ct. 851). Adams’s evidence of actual innocence comes by way of affidavits from Carl Clark and Jackie Wilson, both of whom place Adams in the vicinity of 56th Street and Central Avenue, S.E., in Washington D.C., around the time of Hamilton’s murder. (See Pet., Ex. C (Aff. of Carl Clark) ¶2; id., Ex. D (Aff.) ¶2.) The affiants state that Adams’s trial counsel did not call them to testify in Adams’s defense, notwithstanding their willingness to do so. (Id.) The proffered testimony from Clark and Wilson is not new, and was known to Adams’s trial counsel at the time of his trial. Moreover, the affidavits Adams presents were executed years ago and were presented to Superior Court in 2004. Thus, the evidence Adams presents is not “new” and does not support his claim of actual innocence. Adams also submits the affidavit of James (Tink) Owens, who also saw him in the “projects (East - Capitol Dwelling), which is located on 56th [Pjlace and Central Ave., S.E.,” around the time of Hamilton’s murder. (Pet’r Opp’n, Ex. 2 at 1.) Owens’s affidavit, which was executed on February 2, 2011, is recent, but is no more useful than those of Clark and Wilson. At best, these affiants place petitioner across town at around the time of Hamilton’s murder. None of these affiants states that he or she was with Adams for" } ]

[ { "docid": "23124605", "title": "", "text": "conduct may constitute more than one offense. The issue is whether the district court was correct in concluding that Roberts’ conduct also “specifically establishes” the more serious offense of robbery. See Guidelines § lB1.2(a). The robbery statute at issue applies to “[w]hoever, within the special maritime and territorial jurisdiction of the United States, by force and violence, or by intimidation, takes from the person or presence of another anything of value.” 18 U.S.C. § 2111. The stipulated facts establish that Roberts took eighty dollars from the victim at knifepoint at Fort Carson, conduct which specifically establishes the offense of robbery. The court therefore did not err in applying the robbery guidelihe. D. Roberts also takes issue with the district court’s determination that he “used” a knife, rather than “brandished” it. The guidelines state that “brandished” means that “the weapon was pointed or waved about, or displayed in a threatening manner.” Guidelines § 1B1.1, comment, (n. 1(c)). A weapon is “otherwise used” when “the conduct did not amount to the discharge of a firearm but was more than brandishing, displaying, or possessing a firearm or other dangerous weapon.” Id. (n. 1(g)). Roberts stipulated that the district court could rely on written witness and investigator statements obtained during the investigation in resolving any factual disputes. Rec., vol. I, doc. 4 at 4. Based on such statements, the court found that Roberts “walked up behind the victim while holding his knife in his right hand, put his right arm around the victim, and did hold the knife next to her face and neck ...” when he demanded money. Rec., supp. vol. I, at 15-16. This conduct amounts to more than pointing, waving or displaying in a threatening manner, and the district court was therefore correct in increasing the base offense level on the basis of using a weapon rather than brandishing it. E. Finally, we address Roberts’ claim that the court erred in determining that the victim was physically restrained during the course of the offense. Under the guidelines, “ ‘[p]hysically restrained’ means the forcible restraint of the victim such as by being" } ]

[ { "docid": "23365012", "title": "", "text": "discharge of a firearm but was more than brandishing, displaying, or possessing a firearm or other dangerous weapon,” while “brandished” means “that the weapon was pointed or waved about, or displayed in a threatening manner.” U.S.S.G. § 1B1.1, comment, (n.l(g), 1(c)) (1998); see also U.S.S.G. § 2B3.1, comment. (n.l) (1998) (referring to § 1B1.1 commentary in defining “otherwise used” and “brandishing”). In United States v. Wooden, we held that an implicit threat against a specific person which included “pointing and holding a semi-automatic weapon one-half inch from his victim’s head” amounted to “otherwise use” of the firearm. 169 F.3d 674, 676-77 (11th Cir.1999). Judge Hill of this court, sitting by designation on the First Circuit, relied on several cases, including Wooden, to find that “it was the specific rather than the general pointing of the gun that elevated its use from mere ‘brandishment’ to ‘otherwise used.’ ” United States v. LaFortune, 192 F.3d 157, 161 (1st Cir.1999). We agree with this definition and, like the majority of courts that have considered the question, find that the use of a firearm to make an explicit or implicit threat against a specific person constitutes “otherwise use” of the firearm. See, e.g., id. at 161— 62 (“A general, or even pompous, showing of weapons, involving what one would consider an arrogant demonstration of their presence, constitutes the generalized warning that these weapons may be, in the future, used and not merely brandished. Altering this general display of weaponry by specifically leveling a cocked firearm at the head or body of a bank teller or customer, ordering them to move or be quiet according to one’s direction is a cessation of ‘brandishing’ and the commencement of ‘otherwise used.’ ”) (emphasis added); United States v. Taylor, 135 F.3d 478, 483 (7th Cir.1998) (“As for Charles’s use of the gun, we conclude that poking it into Un-ruh’s back was at least as serious as leveling a dangerous weapon at someone’s head or pointing it at a specific person without any physical contact. We have already found that the latter behavior constitutes ‘otherwise using’ the dangerous weapon" }, { "docid": "16231138", "title": "", "text": "a firearm or other dangerous weapon.” U.S.S.G. § 1B1.1 cmt. n.1(C) (defining “brandished”); id. § 1B1.1 cmt. n.1(I) (defining “otherwise used”). In support of the contention that Albritton merely “brandished” the pistol, his attorney argues that the “entire robbery” lasted less than three minutes, the BB pistol was displayed for “no more than a minute-and-a-half,” and the pistol was brandished for “probably less than 10 or 15 seconds.” In addition, during his change of plea hearing in the district court, when asked if he pointed the BB pistol at anyone, Albritton stated: “I can’t recall actually pointing it. I didn’t — it wasn’t a real gun; so I didn’t want them to even look at it. I just ran in and yelled. And I think confusion just set in then.” This statement, however, is refuted by the surveillance video, which shows Albritton pointing the gun directly at each of the two credit union employees. Albritton erroneously relies on United States v. Moerman for the proposition that a defendant “otherwise used” a weapon only when his or her “actions and/or statements directly threatened an individual with the use of the firearm if the person being threatened did not comply with the defendant’s demands.” 233 F.3d 379, 381 (6th Cir.2000). Moerman was decided under a prior version of the Guidelines, which expansively defined “brandished” as meaning “that the weapon was pointed or waved about, or displayed in a threatening manner.” Id. at 380. After revision of the Guidelines’ definition of “brandished,” the Sixth Circuit recognized that Moerman’s “distinction [between explicit and implicit threats] is no longer supported.” United States v. Bolden, 479 F.3d 455, 462 (6th Cir.2007). In United States v. Villar, the First Circuit distinguished between the current Guidelines’ definitions of “brandished” and “otherwise used.” 586 F.3d 76, 90 (1st Cir.2009). According to Villar, a weapon is “otherwise used” once there is “specific leveling” of the weapon at another person. Id. “Brandishing” is a “general display of weaponry.” Id. (explaining this distinction, drawn in United States v. LaFortune, 192 F.3d 157, 161 (1st Cir.1999), survives the Guidelines’ revision, as it is" }, { "docid": "3313535", "title": "", "text": "Cir.1990). In rejecting Johnson’s argument, the district court stated: there is a distinction and a difference between taking a gun and pointing it at somebody’s head and saying, “Give me your money,” ... and walking into a room with two people and saying, “All right, everybody against the wall,” with a generalized point [of the gun], App. 51. Johnson would limit the “otherwise use” conduct primarily to situations in which the defendant attempted to discharge a weapon but was unsuccessful. His view of “brandishing a weapon” thus encompasses a direct threat to an identifiable victim. We are not persuaded by Johnson’s construction of the Guideline. Our view of “brandish” is different. The dictionary defines “brandish” as “to shake or wave (a weapon) menacingly,” and gives as synonyms “flourish” and “wave.” Webster’s Third New International Dictionary 268 (1976). Although the inclusion of “pointed” in the Guideline definition makes it clear that pointing a weapon at, for example, bank tellers or customers during a bank robbery is included in the term “brandish,” we construe that term in the context of the Guideline definition as denoting a generalized rather than a specific threat. Thus, we agree with the district court that when a defendant did not simply point or wave about a firearm, but actually leveled the gun at the head of the victim at close range and verbalized a threat to discharge the weapon, the conduct is properly classified as “otherwise using” a firearm. The only other Court of Appeals decision to consider this issue under analogous facts came to the same conclusion. In United States v. De La Rosa, 911 F.2d 985 (5th Cir.1990), defendant appealed from a district court’s finding that she “otherwise used” a handgun for purposes of section 2A4.1 (Kidnapping) when she waved a pistol at others involved in her scheme to kidnap a child and threatened that anyone who contacted the police would “have to deal with her.” Id. at 993. Like Johnson, the defendant in De La Rosa argued that “at most her actions constituted brandishing the weapon.” Id. at 993. The Court of Appeals held" }, { "docid": "12398847", "title": "", "text": "reveal that Peach explicitly verbalized a threat to kill, they do reveal that he used the gun, in connection with violent physical contact between himself and his victims, to threaten and to force movement. In United States v. Johnson, the Third Circuit found that the defendant had “otherwise used,” rather than merely “brandished,” a dangerous weapon because he “actually leveled the gun at the head of the victim at close range and verbalized a threat to discharge the weapon.” 931 F.2d 238, 240 (3d Cir.), cert. denied, 502 U.S. 886, 112 S.Ct. 242, 116 L.Ed.2d 197 (1991); see also United States v. Seavoy, 995 F.2d 1414, 1421-22 (7th Cir.) (defendant “otherwise used” weapon because he pointed gun at victims’ faces and heads, threatened to kill, and directed them at gunpoint to lie face down on floor), cert. denied, 510 U.S. 954, 114 S.Ct. 407, 126 L.Ed.2d 354 (1993). In the case at bar, not only did Peach point the weapon at one victim’s head while at close range, he pointed it at her head while grabbing and lifting her by the neck and demanding money. He grabbed another victim while pointing the gun at him as well, and forced him to move as directed and to participate in the robbery. While the factual findings reveal no verbal threat, the essence of the conduct is similar to the facts in Johnson. The Johnson court stated: The dictionary defines “brandish” as “to shake or wave (a weapon) menacingly,” and gives as synonyms “flourish” and “wave.” Webster’s Third New International Dictionary 268 (1976). Although the inclusion of “pointed” in the Guideline definition makes it clear that pointing a weap on at, for example, bank tellers or customers during a bank robbery is included in the term “brandish,” we construe [“pointed”] in the context of the Guideline definition as denoting a generalized rather than a specific threat. Johnson, 931 F.2d at 240. The facts of the case at bar, which include actual, physical seizing of the specific victim, the simultaneous pointing of the weapon at the victim, and the forced movement of the victim," }, { "docid": "13475273", "title": "", "text": "foregoing “the right to take the witness stand in [his] own defense ... as well as the right to rely upon the subpoena power of the court and summon witnesses to give testimony as part of any defense.” The trial court further determined that the defendant had sufficient time from his arrest until the change of plea hearing to consider his options. We conclude that Robert Seavoy has failed to meet his burden of persuasion and demonstrate under Rule 32(d) any fair and just reason for the court to grant his motion to withdraw the guilty plea. C. Robert Seavoy’s Four-Level Sentence Enhancement Robert Seavoy argues that his conduct while robbing Bank North only constituted “brandishment” of a firearm calling for a three-level sentence enhancement, as opposed to a four-level sentence enhancement, for using a weapon during the bank robbery under U.S.S.G. § 2B3.1(b)(2). We review the district court’s four-level enhancement of Robert Seavoy’s sentence under a clearly erroneous standard. United States v. Reynolds, 900 F.2d 1000, 1004 (7th Cir.1990). Robert Seavoy relies on United States v. Johnson, 931 F.2d 238, 240 (3d Cir.), cert. denied, — U.S. -, 112 S.Ct. 242, 116 L.Ed.2d 197 (1991), to argue that his conduct in waving a firearm in the air and pointing it at the bank tellers and customers forcing them to lie down on the floor constituted brandishment of a weapon justifying only a three level enhancement under § 2B3.1(b)(2). Section 1B1.1, comment, (n.l), defines a weapon as being “otherwise used” when “the conduct did not amount to the discharge of a firearm but was more than brandishing, displaying, or possessing a firearm or other dangerous weapon.” The Johnson court held that leveling a gun at the head of a victim and verbalizing a threat is conduct properly classified as “otherwise using” a firearm. Johnson, 931 F.2d at 240. The district court relied upon Johnson to apply a four-level enhancement to Robert’s sentence • for “otherwise using” his firearm during the Bank North robbery based on his threat to kill the bank’s tellers or customers in addition to pointing a firearm" }, { "docid": "23365011", "title": "", "text": "co-conspirator are both armed, “an enhancement is entirely proper because two armed men pose a much greater threat to public safety than does one.” Washington, 44 F.3d at 1281 (citing Kim-mons ). Here, it is undisputed that both of Cover’s co-defendants possessed firearms during the robbery. Accordingly, we find that it was appropriate for the district court to apply a § 2B3.1(b)(2) enhancement. 2. The government’s challenge The government’s challenge addresses the scope of the enhancement, i.e., whether the co-conspirators merely “brandished, displayed, or possessed” their firearms or whether they “otherwise used” their firearms during the crime. U.S.S.G. §§ 2B3.1(b)(2)(B), (C). In deciding not to give the six-point enhancement for “otherwise use” of a firearm, the district court rested on a legal interpretation of § 2B3.1(b)(2)(B). See R4-25. We review de novo the district court’s interpretation of the Sentencing Guidelines. See United States v. Cook, 181 F.3d 1232, 1233 (11th Cir.1999); United States v. Orozco, 121 F.3d 628, 629 (11th Cir.1997). Under the Guidelines, “otherwise used” means “that the conduct did not amount to the discharge of a firearm but was more than brandishing, displaying, or possessing a firearm or other dangerous weapon,” while “brandished” means “that the weapon was pointed or waved about, or displayed in a threatening manner.” U.S.S.G. § 1B1.1, comment, (n.l(g), 1(c)) (1998); see also U.S.S.G. § 2B3.1, comment. (n.l) (1998) (referring to § 1B1.1 commentary in defining “otherwise used” and “brandishing”). In United States v. Wooden, we held that an implicit threat against a specific person which included “pointing and holding a semi-automatic weapon one-half inch from his victim’s head” amounted to “otherwise use” of the firearm. 169 F.3d 674, 676-77 (11th Cir.1999). Judge Hill of this court, sitting by designation on the First Circuit, relied on several cases, including Wooden, to find that “it was the specific rather than the general pointing of the gun that elevated its use from mere ‘brandishment’ to ‘otherwise used.’ ” United States v. LaFortune, 192 F.3d 157, 161 (1st Cir.1999). We agree with this definition and, like the majority of courts that have considered the question, find that" }, { "docid": "20466687", "title": "", "text": "to the robbery, including the plastic B.B. gun. White, 222 F.3d at 374. So the district court’s four-level enhancement under U.S.S.G. § 2B3.1(b)(2)(D) was impermissible double counting. Regarding Count 14, Eubanks argues that the district court’s six-level weapons enhancement for “otherwise using” a firearm under U.S.S.G. § 2B3.1(b)(2)(B) was also improper. Recall that in the jewelry store robbery, Eu-banks hopped over the front counter and pointed his weapon at a store employee, forcing the employee to the ground. Eu-banks contends that this conduct only warranted a five-level enhancement for brandishing a firearm, and indeed this is what the parties stipulated to in the plea agreement. The district court disagreed holding that because Eubanks pointed the weapon at a specific victim and put that victim to the ground, he personalized the threat. The district court felt that this conduct was “otherwise using” the firearm (a six-level enhancement), rather than brandishing the firearm (a five-level enhancement). See U.S.S.G. § 2B3.1(b)(2)(B) and (C). The definitions of “brandishing” and “otherwise use” in the guidelines are largely unhelpful. United States v. Hernandez, 106 F.3d 737, 741 (7th Cir.1997). The term “brandished” means that “all or part of the weapon was displayed, or the presence of the weapon was otherwise made known to another person, in order to intimidate that person.” U.S.S.G. § 1B1.1, comment (n.l(C)). By contrast, the guidelines define “otherwise use” as “conduct [that] did not amount to the discharge of a firearm but was more than brandishing, displaying, or possessing a firearm or other dangerous weapon.” U.S.S.G. § 1B1.1, comment (n.l(I)). We have previously held that “pointing a weapon at a specific victim created a personalized threat of harm,” warranting an “otherwise use” adjustment. United States v. Warren, 279 F.3d 561, 563 (7th Cir.2002); United States v. Taylor, 135 F.3d 478, 483 (7th Cir.1998). Conversely, brandishing typically occurs where a defendant generally displays a weapon or points the weapon at a group of people rather than a specific individual. See Hernandez, 106 F.3d at 741 (noting the difference between “pointing or waving about a firearm and leveling the weapon at the head of" }, { "docid": "3313533", "title": "", "text": "assault of three individuals. See 18 U.S.C. § 3553(b) (1988) and U.S.S.G. § 5K2.0, p.s. The court sentenced Johnson to fifty-one months, the maximum imprisonment available at offense level 20 for a defendant, like Johnson, with a criminal history category of III. On appeal Johnson makes two arguments. First, he argues that the district court erred as a matter of law in increasing his base offense level by four levels because in pointing his gun at Horovitz’s head he “brandished” rather than “otherwise used” a weapon. Second, Johnson contends that the district court committed error in departing upward because the cir cumstance of multiple victims was not a permissible basis on which to depart and, even if departure was permissible, the degree of departure was unreasonable. II. The specific offense characteristics for aggravated assault provide: (A) If a firearm was discharged, increase by 5 levels; (B) If a dangerous weapon (including a firearm) was otherwise used, increase by 4 levels; (C) If a dangerous weapon (including a firearm) was brandished or its use was threatened, increase by 3 levels. U.S.S.G. § 2A2.2(b)(2). According to the Guidelines, a deadly weapon is “brandished” when it is “pointed or waved about, or displayed in a threatening manner.” Id. § 1B1.1, comment. (n.l(c)). “Otherwise used” is defined as including conduct that “did not amount to the discharge of a firearm but was more than brandishing, displaying, or possessing a firearm or other dangerous weapon.” Id. (n. 1(g)). Unfortunately, this definition is not helpful in drawing the line between the three categories of action. Horovitz, to whose assault Johnson pled guilty, testified at the sentencing hearing that Johnson approached her with a gun, pointed it at her head from a distance of one or two feet, ordered her not to start her car or he would “blow [her] head off,” and demanded her money. Johnson argues that because he only threatened to use the gun, he cannot be found to have “otherwise used” it. Inasmuch as this implicates a legal issue, our review is plenary. See United States v. Bierley, 922 F.2d 1061, 1064 (3d" }, { "docid": "22922333", "title": "", "text": "term “brandished” means “that the weapon was pointed or waved about, or displayed in a threatening manner,” id. Application Note 1(c) (“Note 1(c)”); and the term “otherwise used” means that “the conduct did not' amount to the discharge of a firearm but was more than brandishing, displaying, or possessing,” id. Application Note 1(g) (“Note 1(g)”). Whjle we are required to give “due deference to the district court’s application of the guidelines to the facts,” 18 U.S.C. § 3742(e) (1988), where that application “ ‘approaches a purely legal question’ ” our standard of review is de novo. United States v. James, 998 F.2d 74, 82 (2d Cir.) (quoting United States v. Vazzano, 906 F.2d 879, 883 (2d Cir.1990)), cert. denied, — U.S. -, 114 S.Ct. 415, 126 L.Ed.2d 362 (1993). This Court has subjected the matter of whether a defendant’s use of a weapon constituted “brandishing” as defined in Note 1(c), or “other use” as defined in Note 1(g), to de novo review. See United States v. James, 998 F.2d at 82-83. In James, we noted that a robber’s striking a victim with a gun was an example of how a firearm not discharged could be “otherwise used,\" as defined in Note 1(g). But we held that the robber’s simply pointing the gun at another person to interrupt the latter’s following him constituted only “brandish[ing]” within the meaning of Note 1(c), not “other[ ] use[ ]” within the meaning of Note 1(g). In the present- case, since the only “weapon” recovered by the police was the toy gun discarded in the weeds near the supermarket, the court properly treated Matthews and Prater as having carried “dangerous weapons,” i.e., objects that appeared to be dangerous weapons, rather than actual firearms. As to the use of these weapons, the evidence was that the robbers ordered employees and customers of the bank to lie on the floor, pointed their weapons at these victims, and threatened to kill anyone who disobeyed. For example, Donnelly testified that the robbers told everyone, “ ‘If you don’t keep your head down, you are going to get shot’ ”" }, { "docid": "12398845", "title": "", "text": "1B1.1 cmt. 1(g) (explaining that a weapon was “otherwise used” if the conduct amounted to more than “brandishing”). Peach did not merely point, wave about, or display the weapon in a threatening manner. Instead, he (1) pointed it at the victims, (2) used it to threaten them, (3) pointed it at one victim’s head while grabbing and lifting her by the neck and demanding money, and (4) grabbed another victim, forced him to an office area while pointing the gun at him, and demanded that he open the safe and provide money. In United States v. Roberts, this court held that a criminal defendant “otherwise used,” as opposed to merely “brandished,” a knife when he approached his victim from behind while holding a knife in his right hand, put his right arm around the victim, and held the knife next to her face and neck while demanding money. 898 F.2d 1465, 1467, 1469-70 (10th Cir.1990). The facts of this ease are the substantial equivalent of the facts in Roberts, and thus require the same conclusion that the weapon was “otherwise used,” rather than merely “brandished.” Other circuits have treated various kinds of conduct as constituting “otherwise using,” as opposed to merely “brandishing,” a dangerous weapon. In United States v. Fuller, the Ninth Circuit found that the defendant’s conduct was more culpable than “brandishing” in two ways. First, the defendant ... caus[ed] the gun to come in contact with the teller’s head.... Second, the defendant used the gun to threaten the [victim] and to force her to get up off the floor. By pointing the firearm at the [victim] and explicitly threatening to kill her if she did not stand, the defendant’s conduct exceeded mere “brandishing.” 99 F.3d 926, 927 (9th Cir. 1996). The district court’s findings in this case do not specifically reveal whether there was any physical contact between the gun and the victim. It is clear, however, that the gun was not only brandished, but also used to directly threaten the victims and to force them to move according to Peach’s directions. Though the findings do not specifically" }, { "docid": "13475274", "title": "", "text": "States v. Johnson, 931 F.2d 238, 240 (3d Cir.), cert. denied, — U.S. -, 112 S.Ct. 242, 116 L.Ed.2d 197 (1991), to argue that his conduct in waving a firearm in the air and pointing it at the bank tellers and customers forcing them to lie down on the floor constituted brandishment of a weapon justifying only a three level enhancement under § 2B3.1(b)(2). Section 1B1.1, comment, (n.l), defines a weapon as being “otherwise used” when “the conduct did not amount to the discharge of a firearm but was more than brandishing, displaying, or possessing a firearm or other dangerous weapon.” The Johnson court held that leveling a gun at the head of a victim and verbalizing a threat is conduct properly classified as “otherwise using” a firearm. Johnson, 931 F.2d at 240. The district court relied upon Johnson to apply a four-level enhancement to Robert’s sentence • for “otherwise using” his firearm during the Bank North robbery based on his threat to kill the bank’s tellers or customers in addition to pointing a firearm in their faces and at their heads, and directing them to lie face down on the floor at gunpoint. Although the Seventh Circuit has not held specifically what “otherwise using” a firearm constitutes as a sentencing enhancement under § 2B3.1(b)(2), we consider the reasoning in Johnson that defines “otherwise using” a firearm persuasive because as in Johnson, Robert Seavoy’s pointing of a firearm, combined with an explicit threat, amounted to conduct that was more than “brandishing, displaying, or possessing a firearm or other dangerous weapon” under Sentencing Guideline § 1B1.1. Johnson, 931 F.2d at 240-41; see also United States v. Hamilton, 929 F.2d 1126, 1130 (6th Cir.1991); United States v. De La Rosa, 911 F.2d 985, 993 (5th Cir.1990), cert. denied, — U.S. -, 111 S.Ct. 2275, 114 L.Ed.2d 726 (1991); United States v. Roberts, 898 F.2d 1465, 1469-70 (10th Cir.1990). We hold that the district court did not commit clear error in enhancing Robert Seavoy’s sentence four levels for “otherwise using” a weapon during the bank robbery under § 2B3.1(b)(2). IV. CONCLUSION The district" }, { "docid": "10835438", "title": "", "text": "that the distinction would likely not be significant to any potential victims of either. Both are dangerous weapons when used in a robbery. In the context of this case, the sledgehammer and the baseball bat both fit the definition of a “dangerous weapon” contained in U.S.S.G. § 1B1.1, application note 1(d), and the circumstances demonstrate it was reasonable for the District Court to treat them as such. C. We turn next to the question of whether these dangerous weapons were merely “brandished,” justifying a three level sentence enhancement under § 2B3.1(b)(2)(E), or whether they were “otherwise used” in the course of the robbery, warranting a four level enhancement under § 2B3.1(b)(2)(D). Whether Johnson’s sentence should have been enhanced by three or four levels depends on how one interprets the Guidelines. Courts of Appeals have generally distinguished between the general pointing or waving about of a weapon, which amounts to “brandishing,” and the pointing of a weapon at a specific victim or group of victims to force them to comply with the robber’s demands. In essence, “brandishing” constitutes an implicit threat that force might be used, while a weapon is “otherwise used” when the threat becomes more explicit. See United States v. Gilkey, 118 F.3d 702, 705-06 (10th Cir.1997) (gun was “otherwise used” to force victims to move, despite lack of evidence regarding physical contact with victims or use of verbal threats); United States v. Elkins, 16 F.3d 952 (8th Cir.1994) (knife was “otherwise used” to force victim to move); United States v. Hamilton, 929 F.2d 1126, 1130 (6th Cir.1991) (knife was “otherwise used” when intentionally held to victim’s throat as robber made verbal threats); United States v. Burton, 126 F.3d 666, 669 (5th Cir.1997) (gun was “otherwise used” when pointed at victims during bank robbery to ensure their compliance). But see United States v. Matthews, 20 F.3d 538 (2d Cir.1994) (pointing firearms at customers during bank robbery, ordering them to floor, and threatening to kill them if they did not comply amounted to “brandishing”). We too, have considered the question of whether a firearm was “otherwise used” during a robbery," }, { "docid": "23365013", "title": "", "text": "the use of a firearm to make an explicit or implicit threat against a specific person constitutes “otherwise use” of the firearm. See, e.g., id. at 161— 62 (“A general, or even pompous, showing of weapons, involving what one would consider an arrogant demonstration of their presence, constitutes the generalized warning that these weapons may be, in the future, used and not merely brandished. Altering this general display of weaponry by specifically leveling a cocked firearm at the head or body of a bank teller or customer, ordering them to move or be quiet according to one’s direction is a cessation of ‘brandishing’ and the commencement of ‘otherwise used.’ ”) (emphasis added); United States v. Taylor, 135 F.3d 478, 483 (7th Cir.1998) (“As for Charles’s use of the gun, we conclude that poking it into Un-ruh’s back was at least as serious as leveling a dangerous weapon at someone’s head or pointing it at a specific person without any physical contact. We have already found that the latter behavior constitutes ‘otherwise using’ the dangerous weapon within the meaning of § 2B3.1(b)(2)(D).”) (emphasis added); United States v. Gilkey, 118 F.3d 702, 706 (10th Cir.1997) (“The facts of the case at bar, which include actual, physical seizing of the specific victim, the simultaneous pointing of the weapon at the victim, and the forced mqvement of the victim, indicate specific rather than general pointing of the gun. It does not matter whether the gun itself actually touched the victim.”), (affirming district court’s enhancement for “otherwise use” of a dangerous weapon) (emphasis added); United States v. Elkins, 16 F.3d 952, 953-54 (8th Cir.1994) (“We reject the invitation to conclude that placing a knife against the throat of an innocent bystander to facilitate cooperation with a robbery demand is not ‘use’ of a dangerous weapon for purposes of section 2B3.1(b)(2).”) (emphasis added); United States v. Johnson, 931 F.2d 238, 240 (3d Cir.1991) (“[W]hen a defendant did not simply point or wave about a firearm, but actually leveled the gun at the head of the victim at close range and verbalized a threat to discharge the" }, { "docid": "3313534", "title": "", "text": "increase by 3 levels. U.S.S.G. § 2A2.2(b)(2). According to the Guidelines, a deadly weapon is “brandished” when it is “pointed or waved about, or displayed in a threatening manner.” Id. § 1B1.1, comment. (n.l(c)). “Otherwise used” is defined as including conduct that “did not amount to the discharge of a firearm but was more than brandishing, displaying, or possessing a firearm or other dangerous weapon.” Id. (n. 1(g)). Unfortunately, this definition is not helpful in drawing the line between the three categories of action. Horovitz, to whose assault Johnson pled guilty, testified at the sentencing hearing that Johnson approached her with a gun, pointed it at her head from a distance of one or two feet, ordered her not to start her car or he would “blow [her] head off,” and demanded her money. Johnson argues that because he only threatened to use the gun, he cannot be found to have “otherwise used” it. Inasmuch as this implicates a legal issue, our review is plenary. See United States v. Bierley, 922 F.2d 1061, 1064 (3d Cir.1990). In rejecting Johnson’s argument, the district court stated: there is a distinction and a difference between taking a gun and pointing it at somebody’s head and saying, “Give me your money,” ... and walking into a room with two people and saying, “All right, everybody against the wall,” with a generalized point [of the gun], App. 51. Johnson would limit the “otherwise use” conduct primarily to situations in which the defendant attempted to discharge a weapon but was unsuccessful. His view of “brandishing a weapon” thus encompasses a direct threat to an identifiable victim. We are not persuaded by Johnson’s construction of the Guideline. Our view of “brandish” is different. The dictionary defines “brandish” as “to shake or wave (a weapon) menacingly,” and gives as synonyms “flourish” and “wave.” Webster’s Third New International Dictionary 268 (1976). Although the inclusion of “pointed” in the Guideline definition makes it clear that pointing a weapon at, for example, bank tellers or customers during a bank robbery is included in the term “brandish,” we construe that term in" }, { "docid": "22917029", "title": "", "text": "finding that Dunigan “otherwise used” his gun rather than “brandished” it. “Brandished” with reference to a dangerous weapon (including a firearm) means that all or part of the weapon was displayed, or the presence of the weapon was otherwise made known to another person, in order to intimidate that person, regardless of whether the weapon was directly visible to that person. Accordingly, although the dangerous weapon does not have to be directly visible, the weapon must be present. U.S.S.G. § 1B1.1, cmt. n.l(c). “ ‘Otherwise used’ with reference to a dangerous weapon (including a firearm) means that the conduct did not amount to the discharge of a firearm but was more than brandishing, displaying, or possessing a firearm or other dangerous weapon.” Id. cmt. n.l(I). This court addressed the distinction between “brandished” and “otherwise used” in several cases, most notably United States v. Gonzales, 40 F.3d 735, 738-40 (5th Cir.1994). The current definitions in the guidelines, however, were changed in 2000. The former version stated that “brandished” means the weapon was pointed or waved about or displayed in a threatening manner. U.S.S.G. § 1B1.1 cmt. n.l(c) (1998). “[U]nder the current Guidelines, the definition of ‘brandished’ can mean as little as displaying part of a firearm or making the presence of the firearm known ‘in order to intimidate.’ ” United States v. Bolden, 479 F.3d 455, 463 (6th Cir.), cert. denied, — U.S.-, 128 S.Ct. 175, 169 L.Ed.2d 119 (2007) (citing U.S.S.G. § 1B1.1 cmt. b.l(c) (2002)). Since these changes were made, we have examined the issue of “brandished” versus “otherwise used” only once, in United States v. Williams, 520 F.3d 414, 423 (5th Cir.), cert. denied, — U.S.-, 129 S.Ct. 111, 172 L.Ed.2d 89 (2008), in which we adopted the interpretation of U.S.S.G. § 2B3.1(b)(2) contained in United States v. Paine, 407 F.3d 958, 963-64 (8th Cir.2005), and United States v. Orr, 312 F.3d 141, 144-45 (3d Cir.2002). The use of weapons in Williams, Paine, and Orr is similar to Dunigan’s use of his BB gun. In Williams, the defendant pointed and swung a “shank” at a police officer. Williams," }, { "docid": "10835440", "title": "", "text": "or merely “brandished.” We reasoned that a firearm is “brandished” when it is waved about in a generally menacing manner during a robbery. See United States v. Johnson, 931 F.2d 238, 240-41 (3d Cir.1991). When, however, that firearm is leveled at the head of a victim, and especially when this act is accompanied by explicit verbal threats, we have had no difficulty determining that the firearm was “otherwise used.” Id. We agree with the Court of Appeals for the First Circuit, which held that a person may “brandish” a weapon to “advise” those concerned that he possesses the general ability to do violence, and that violence is imminently or immediately available.... Altering this general display of weaponry by [for instance] specifically leveling a cocked firearm at the head or body of a bank teller or customer, ordering them to move or be quiet according to one’s direction, is a cessation of “brandishing” and the commencement of “otherwise used.” United States v. LaFortune, 192 F.3d 157 (1st Cir.1999). Pointing a weapon at a specific person or group of people, in a manner that is explicitly threatening, is sufficient to make out “otherwise use” of that weapon. We hold this is true when any dangerous weapon is employed: It need not be a firearm. Other courts have held that verbal threats are not always required to make out “otherwise use” of a weapon. Some have held that explicit threats may be made either verbally, or through conduct alone. See United States v. Nguyen, 190 F.3d 656 (5th Cir.1999). Here, however, Johnson’s sentence was properly enhanced even were we to require verbal threats. In addition to Johnson’s use of a sledgehammer to smash open display cases, one of the co-defendants wielded a baseball bat in a threatening manner and testified that he used it to intimidate people in the store. This co-defendant testified that on one occasion he held the baseball bat up high and told an employee to put the phone down or he would break her neck, or “knock her damn head off.” Johnson’s co-defendant with the baseball bat thus clearly" }, { "docid": "12398844", "title": "", "text": "determines that the presentence investigation report and the previously stated findings are accurate and orders that those findings be incorporated [in its judgment].” R. Supp. Vol. IX at 14. The Pre-Sentence Report stated the following: Michael Peach[] entered Jimmie’s Diner Restaurant, and confronted a waitress.... He grabbed her by the neck and pointed a gun to her head, demanding money. She indicated that he almost lifted her from her feet, placing her face almost directly in his. She advised him that she could not provide him with any money at which time he left her and grabbed the shift supervisor/manager.... He forced [him] to an office area, while pointing a gun at him, and demanded that he open the safe and provide money. R. Supp. Vol. II at ¶ 10. In light of the district court’s factual findings, including those made directly by the court and those it adopted from the PreSentence Report, this court determines that Michael Peach “otherwise used” a dangerous weapon because his conduct amounted to more than “brandishing.” See U.S.S.G. § 1B1.1 cmt. 1(g) (explaining that a weapon was “otherwise used” if the conduct amounted to more than “brandishing”). Peach did not merely point, wave about, or display the weapon in a threatening manner. Instead, he (1) pointed it at the victims, (2) used it to threaten them, (3) pointed it at one victim’s head while grabbing and lifting her by the neck and demanding money, and (4) grabbed another victim, forced him to an office area while pointing the gun at him, and demanded that he open the safe and provide money. In United States v. Roberts, this court held that a criminal defendant “otherwise used,” as opposed to merely “brandished,” a knife when he approached his victim from behind while holding a knife in his right hand, put his right arm around the victim, and held the knife next to her face and neck while demanding money. 898 F.2d 1465, 1467, 1469-70 (10th Cir.1990). The facts of this ease are the substantial equivalent of the facts in Roberts, and thus require the same conclusion" }, { "docid": "22922335", "title": "", "text": "(Tr. 418); another customer testified that one of the robbers put his hand on the witness’s shoulder and said, “ ‘Get down or I will blow your head off ” (Tr. 340); and a teller testified that one of the robbers kept saying, “Move and you are dead” (Tr. 323). Surveillance photographs showed robbers pointing their weapons at the victims. Though the government argues that this combination of brandishing a weapon and uttering threats warrants the four-level increase provided by § 2B3.1(b)(2), we disagree. When a robber points a gun, or what appears to be a gun, at a robbery victim or bystander, that gesture is inherently threatening. And we should not have to point out, for it is tautological, that there can be no “displayf ] [of the gun] in a threatening manner,” Note 1(c), without an implicit threat. Coupling that implicit threat with the utterance of an explicit verbal threat may constitute additional conduct, but it does not, in our view, constitute additional use of the weapon. Since the robbers here were not shown to have done anything more with their weapons than to brandish and point them menacingly, we conclude that the three-level enhancement provided for brandishing in § 2B3.1(b)(2)(E), rather than the four-level enhancement provided in § 2B3.1(b)(2)(D) for other use, should have been applied to Matthews and Prater. We note that some of our sister Circuits have held that a defendant’s pointing of a gun while making an explicit threat sufficed to warrant the four-level enhancement. See, e.g., United States v. Seavoy, 995 F.2d 1414, 1422 (7th Cir.) (defendant’s “pointing of a firearm, combined with an explicit threat” was enough to justify four-level enhancement), cert. denied, — U.S. —, 114 S.Ct. 407, 126 L.Ed.2d 354 (1993); United States v. De La Rosa, 911 F.2d 985, 993 (5th Cir.1990) (defendant’s “addition of a threat to [accomplices] involved in the [kidnaping] scheme with her operates to bring this conduct within the orbit of ‘otherwise used’ ”), cert. denied, 500 U.S. 959, 111 S.Ct. 2275, 114 L.Ed.2d 726 (1991). To a degree this may be because these courts" }, { "docid": "12398846", "title": "", "text": "that the weapon was “otherwise used,” rather than merely “brandished.” Other circuits have treated various kinds of conduct as constituting “otherwise using,” as opposed to merely “brandishing,” a dangerous weapon. In United States v. Fuller, the Ninth Circuit found that the defendant’s conduct was more culpable than “brandishing” in two ways. First, the defendant ... caus[ed] the gun to come in contact with the teller’s head.... Second, the defendant used the gun to threaten the [victim] and to force her to get up off the floor. By pointing the firearm at the [victim] and explicitly threatening to kill her if she did not stand, the defendant’s conduct exceeded mere “brandishing.” 99 F.3d 926, 927 (9th Cir. 1996). The district court’s findings in this case do not specifically reveal whether there was any physical contact between the gun and the victim. It is clear, however, that the gun was not only brandished, but also used to directly threaten the victims and to force them to move according to Peach’s directions. Though the findings do not specifically reveal that Peach explicitly verbalized a threat to kill, they do reveal that he used the gun, in connection with violent physical contact between himself and his victims, to threaten and to force movement. In United States v. Johnson, the Third Circuit found that the defendant had “otherwise used,” rather than merely “brandished,” a dangerous weapon because he “actually leveled the gun at the head of the victim at close range and verbalized a threat to discharge the weapon.” 931 F.2d 238, 240 (3d Cir.), cert. denied, 502 U.S. 886, 112 S.Ct. 242, 116 L.Ed.2d 197 (1991); see also United States v. Seavoy, 995 F.2d 1414, 1421-22 (7th Cir.) (defendant “otherwise used” weapon because he pointed gun at victims’ faces and heads, threatened to kill, and directed them at gunpoint to lie face down on floor), cert. denied, 510 U.S. 954, 114 S.Ct. 407, 126 L.Ed.2d 354 (1993). In the case at bar, not only did Peach point the weapon at one victim’s head while at close range, he pointed it at her head while" }, { "docid": "10835439", "title": "", "text": "“brandishing” constitutes an implicit threat that force might be used, while a weapon is “otherwise used” when the threat becomes more explicit. See United States v. Gilkey, 118 F.3d 702, 705-06 (10th Cir.1997) (gun was “otherwise used” to force victims to move, despite lack of evidence regarding physical contact with victims or use of verbal threats); United States v. Elkins, 16 F.3d 952 (8th Cir.1994) (knife was “otherwise used” to force victim to move); United States v. Hamilton, 929 F.2d 1126, 1130 (6th Cir.1991) (knife was “otherwise used” when intentionally held to victim’s throat as robber made verbal threats); United States v. Burton, 126 F.3d 666, 669 (5th Cir.1997) (gun was “otherwise used” when pointed at victims during bank robbery to ensure their compliance). But see United States v. Matthews, 20 F.3d 538 (2d Cir.1994) (pointing firearms at customers during bank robbery, ordering them to floor, and threatening to kill them if they did not comply amounted to “brandishing”). We too, have considered the question of whether a firearm was “otherwise used” during a robbery, or merely “brandished.” We reasoned that a firearm is “brandished” when it is waved about in a generally menacing manner during a robbery. See United States v. Johnson, 931 F.2d 238, 240-41 (3d Cir.1991). When, however, that firearm is leveled at the head of a victim, and especially when this act is accompanied by explicit verbal threats, we have had no difficulty determining that the firearm was “otherwise used.” Id. We agree with the Court of Appeals for the First Circuit, which held that a person may “brandish” a weapon to “advise” those concerned that he possesses the general ability to do violence, and that violence is imminently or immediately available.... Altering this general display of weaponry by [for instance] specifically leveling a cocked firearm at the head or body of a bank teller or customer, ordering them to move or be quiet according to one’s direction, is a cessation of “brandishing” and the commencement of “otherwise used.” United States v. LaFortune, 192 F.3d 157 (1st Cir.1999). Pointing a weapon at a specific person or" } ]

[ { "docid": "7009694", "title": "", "text": "charges was that Fife, a convicted felon, brokered the illegal sale of firearms between a licensed gun dealer and buyers using fake identification. At sentencing Fife was found to be an “armed career criminal” under 18 U.S.C. § 924(e). .The finding catapulted him out of the normal criminal history categories established by the federal sentencing guidelines and into a separate status reserved for defendants determined to be particularly dangerous. To earn the armed career criminal sobriquet, a defendant must have three prior convictions for “violent felonies” on his record. Fife concedes that he has two qualifying convictions — one for burglary in 1980 and another for aggravated arson in 1983 — but he denies that he has a third. The district court found that a 1989 Illinois conviction for “armed violence” was the third, and that put Fife over the top and into the armed career criminal category. Section 924(e) provides that any person who violates § 922(g) — that is, anyone convicted of being a felon in possession of a firearm as Fife was — who has three previous convictions for “violent” felonies or serious drug offenses faces a minimum sentence of 15 years. A violent felony means any felony (i.e., any crime punishable by imprisonment for more than a year) that — has as an element the use, attempted use, or threatened use of physical force against the person of another, or —; is burglary, arson, or extortion, involves use of explosives, or otherwise • involves conduct that presents a serious potential risk of physical injury to another. The question we must answer is whether “armed violence” under Illinois law, 720 ILCS 5/33A-2, is a crime that “otherwise involves conduct that presents a serious potential risk of physical injury to another.” Whether an offense falls under the “otherwise” clause of 18 U.S.C. § 924(e) is an issue of law which we review de novo. United States v. Davis, 16 F.3d 212 (7th Cir.1994), cert. denied, — S.Ct. -, 115 S.Ct. 354, 130 L.Ed.2d 309 (1994). In determining whether a particular crime is a violent felony, a sentencing court’s" } ]

[ { "docid": "7885689", "title": "", "text": "MOORE, J., delivered the opinion of the court, in which COLE, J., joined. ROSE, D.J. (p. 628), delivered a separate opinion concurring in the result. OPINION KAREN NELSON MOORE, Circuit Judge. Defendant-Appellant Ricky Jones pleaded guilty on April 11, 2005, to one count of being a felon in possession of a firearm in violation of 18 U.S.C. §§ 922(g)(1) and 924(e)(1). He was classified as an armed career criminal based on three prior felony convictions and sentenced to a term of 188 months of imprisonment. One of those prior convictions was for reckless homicide under Kentucky law. Jones now appeals the denial of his pro se motion to vacate his sentence under 28 U.S.C. § 2255 on the basis of Begay v. United States, 553 U.S. 137, 128 S.Ct. 1581, 170 L.Ed.2d 490 (2008). We agree with Jones and the United States that Jones is entitled to relief in this case. We therefore REVERSE the judgment of the district court and REMAND for resentencing consistent with this opinion. I. BACKGROUND In January 2004, the police received complaints that Jones was allegedly brandishing a firearm and had discharged it. Jones was thereafter detained in a traffic stop during which an officer discovered a loaded revolver in the vehicle. At the time, Jones had been convicted of three prior felonies: (1) “Theft of Property of the Value of more than $100” and second-degree escape in 1982; (2) second-degree robbery in 1991; and (3) reckless homicide in 1999. R. 1 (Compl. Aff. at ¶ 9) (Page ID #3). On April 11, 2005, Jones pleaded guilty to one count of being a felon in possession of a firearm in violation of 18 U.S.C. §§ 922(g)(1) and 924(e)(1). Because Jones was deemed to be an armed career criminal under the Armed Career Criminal Act (“ACCA”), 18 U.S.C. § 924(e)(1), Jones faced a mandatory minimum sentence of fifteen years. Jones filed his first motion pursuant to 28 U.S.C. § 2255 on July 10, 2009, seeking relief pro se on the basis of Begay. Begay was announced April 16, 2008, but Jones claimed that he did not" }, { "docid": "3611856", "title": "", "text": "POSNER, Circuit Judge. The principal although not only issue presented by this appeal is the often vexing question of whether a conviction used to enhance a defendant’s sentence under the Armed Career Criminal Act is a “violent felony” within the meaning of the Act. 18 U.S.C. § 924(e). The Act defines the term to mean either a felony that “has as an element the use, attempted use, or threatened use of physical force against the person of another” or “is burglary, arson, or extortion, involves use of explosives, or otherwise involves conduct that presents a serious potential risk of physical injury to another.” § 924(e)(2)(B)®, (ii). It is the catchall phrase, which we have italicized, that presents problems of application. Carnell Brown was convicted in 2000 of being a felon in possession of a gun, § 922(g)(1), an offense for which the maximum sentence is normally 10 years in prison. § 924(a)(2). The government urged that he be sentenced to a minimum of 15 years on the ground that he had three previous convictions for a violent felony or a felony drug offense, and if this was right then the Armed Career Criminal Act indeed required a sentence at least that long. § 924(e)(1). We held that it was right, United States v. Brown, 273 F.3d 747 (7th Cir.2001), and on remand Brown was sentenced to 264 months in prison, and did not appeal. In 2010, following an unsuccessful collateral attack on his sentence under 28 U.S.C. § 2255 (the federal prisoner’s substitute for habeas corpus), he mounted a new collateral attack under the federal habeas corpus statute, 28 U.S.C. § 2241, in reliance on the Supreme Court’s decision in Begay v. United States, 553 U.S. 137, 128 S.Ct. 1581, 170 L.Ed.2d 490 (2008). There the Court had held that driving under the influence is not within the catchall provision of the Armed Career Criminal Act because a crime within the catchall “typically involve[s] purposeful, ‘violent’, and ‘aggressive’ conduct.” Id. at 144-45,-128 S.Ct. 1581. The district court in this case, seconded by the government, held that section 2241 was a" }, { "docid": "22881158", "title": "", "text": "of the remaining convictions); Williams v. Jones, 571 F.3d 1086, 1088 (10th Cir.2009) (directing the district court to \"impose a remedy that comes as close as possible to remedying the constitutional violation” where counsel rendered constitutionally ineffective assistance by threatening to withdraw if the defendant accepted a plea offer); Nunes v. Mueller, 350 F.3d 1045, 1057 (9th Cir.2003) (directing \"the state to release [the petitioner] within 120 days unless it offers [the petitioner] the same material terms that were contained in [the state’s] original plea offer”). . See Begay v. United States, 553 U.S. 137, 128 S.Ct. 1581, 170 L.Ed.2d 490 (2008). While the government argues that savings clause relief is available for pure Begay error, it says that Mr. Bryant’s ACCA sentence is still valid because his criminal history still includes three qualifying predicate convictions even absent his carrying a concealed firearm prior conviction. I agree with the Majority that the government may not now substitute in a new predicate offense to maintain Mr. Bryant's ACCA sentence. As the Majority points out, the government waived any argument that Mr. Bryant's prior 1988 burglary conviction could be used as a third qualifying predicate felony under the ACCA at the time he was sentenced. See Maj. Op. at 1279-80 (citing United States v. Canty, 570 F.3d 1251, 1257 (11th Cir.2009); United States v. Petite, 703 F.3d 1290, 1292 n.2 (11th Cir.2013)). MARTIN, Circuit Judge, concurring in part and dissenting in part: I concur in the Majority’s conclusion that the savings clause in 28 U.S.C. § 2255(e), together with 28 U.S.C. § 2241, give Mr. Bryant a remedy in this case. Mr. Bryant’s claim is that he was wrongly sentenced under the Armed Career Criminal Act of 1984 (ACCA), 18 U.S.C. § 924(e). His case thus squarely presents the issue left open in our en banc decision in Gilbert: whether § 2241 is available where the asserted error in sentencing resulted in a term of incarceration above the statutory maximum that would have applied but for the error. Gilbert v. United States, 640 F.3d 1293, 1306-07, 1319 n.20 (11th Cir.2011) (en banc)." }, { "docid": "11877344", "title": "", "text": "that the defendant acted negligently. . On appeal, Roseboro also challenges the obstruction of justice enhancement, USSG § 3C1.1, levied by the district court. We find no merit to this challenge. NIEMEYER, Circuit Judge, dissenting: Following Roseboro’s conviction for the illegal possession of firearms and ammunition, in violation of 18 U.S.C. § 922(g)(1), the district court sentenced him as an “armed career criminal” to 262 months’ imprisonment. To satisfy the requirement of the Armed Career Criminal Act (“ACCA”), 18 U.S.C. § 924(e), that Rose-boro have three previous convictions for “violent felonies,” the district court relied on Roseboro’s three prior convictions — in 1996, 2001, and 2002 — for failing to stop for a blue light, in violation of South Carolina Code § 56-5-750. To conclude that Roseboro’s convictions were for “violent felonies,” the district court relied on United States v. James, 337 F.3d 387, 390-91 (4th Cir.2003) (hereinafter James (4th Cir.)), where we held that a violation of South Carolina Code § 56-5-750 is a violent felony for purposes of ACCA. The majority agrees that if James (4th Cir.) has not been overruled, it controls and requires us to affirm the district court’s sentence. The majority, however, contends that the Supreme Court’s recent decision in Begay v. United States, -— U.S.-, 128 S.Ct. 1581, 170 L.Ed.2d 490 (2008), overruled James (4th Cir.) and that when the analysis undertaken in Begay is applied to South Carolina Code § 56-5-750, one must conclude that a violation of that law is not a violent felony. Because I believe that Begay did not overrule our decision in James (4th Cir.), I respectfully dissent. Begay construed a New Mexico statute criminalizing driving while under the influence of alcohol, conduct materially distinguishable from that criminalized by South Carolina Code § 56-5-750. Moreover, when the analysis articulated in Begay is applied to the South Carolina statute, it becomes clear that a violation of the South Carolina statute is still a violent felony, as we held in James (4th Cir.). I At the outset, it is important to note that the analysis of whether a previous conviction qualifies" }, { "docid": "3399856", "title": "", "text": "LYNCH, Chief Judge. Willie Dancy, convicted of being a felon in possession of a firearm, 18 U.S.C. § 922(g)(1), and sentenced to fifteen years (180 months) of imprisonment under the Armed Career Criminal Act (ACCA), 18 U.S.C. § 924(e), brings serious challenges to both his conviction and his sentence. As to his conviction, Dancy argues that the firearm and related evidence should have been suppressed, that other evidence was inadmissible and prejudicial, that he was entitled to a mistrial based on the government’s closing argument, and that the jury instruction on what constitutes a “firearm” was in error and violated the Second Amendment. As to his sentence, Dancy argues the district court erred in finding him to be an armed career criminal under the ACCA, as recommended in the Presentence Report (PSR), and sentencing him to fifteen years’ imprisonment, the statutory minimum under the ACCA. Based on the Supreme Court’s decisions under the ACCA in Begay v. United States, 553 U.S. 137, 128 S.Ct. 1581, 170 L.Ed.2d 490 (2008), and Johnson v. United States, — U.S. -, 130 S.Ct. 1265, 176 L.Ed.2d 1 (2010), and on our recent decision in United States v. Holloway, 630 F.3d 252 (1st Cir.2011), he argues we should change prior circuit law. He argues that his prior state convictions for assault and battery on a police officer (ABPO) and for assault and battery with a dangerous weapon (ABDW) could have been based on merely reckless actions, that this is the dispositive consideration under the ACCA, and that the district court erred in finding these were valid predicate offenses rendering him an armed career criminal. We affirm both the conviction and the sentence. I. BACKGROUND A. The Gun Possession Crime We summarize the facts as found by the district court in its denial of Dancy’s motion to suppress, United States v. Dancy, No. 04-10387, 2007 WL 2789279 (D.Mass. Sept. 25, 2007), which are consistent with record support and are not clearly erroneous. See United States v. Dubose, 579 F.3d 117, 120 (1st Cir.2009). We supplement that description with testimony from the record. Dancy does not argue" }, { "docid": "4683086", "title": "", "text": "OPINION ALAN E. NORRIS, Circuit Judge. This case returns to us on remand from the United States Supreme Court, LaCasse v. United States, — U.S. —, 129 S.Ct. 992, 173 L.Ed.2d 287 (2009), with instructions to reconsider our prior judgment in light of Begay v. United States, — U.S. —, 128 S.Ct. 1581, 170 L.Ed.2d 490 (2008), and Chambers v. United States, — U.S. —, 129 S.Ct. 687, 172 L.Ed.2d 484 (2009). We have done so and conclude that neither Begay nor Chambers alters our earlier holding that Michigan’s “fleeing and eluding” statute, Mich. Comp. Laws, § 750.479a, qualifies as a violent felony under the Armed Career Criminal Act (“ACCA”), 18 U.S.C. § 924(e)(1). United States v. LaCasse, 253 Fed.Appx. 553, 556 (6th Cir.2007). I. Defendant Daniel Lee LaCasse challenges the sentence imposed after he pleaded guilty to being a felon in possession of a firearm. 18 U.S.C. § 922(g). He contends that the district court erred when it enhanced his sentence under the ACCA based upon three prior convictions for either drug offenses or violent felonies. He argues that the definition of “violent felony” renders the ACCA void for vagueness or, in the alternative, that his prior conviction under Michigan’s “fleeing and eluding” statute, Mich. Comp. Laws, § 750.479a, does not qualify as a violent felony. Because neither Begay nor Chambers took up the question of whether the ACCA is void for vagueness, we do not revisit the issue here and instead rely upon the reasoning set forth in our prior opinion. LaCasse, 253 Fed.Appx. at 556. Defendant pleaded guilty to a single-count indictment for being a felon in possession of a firearm. 18 U.S.C. § 922(g)(1). The plea agreement left open the possibility that defendant could be subject to the enhanced penalties of the ACCA, which provides for a minimum sentence of fifteen years of incarceration for felons who have three previous convictions for a “violent felony or a serious drug offense.” 18 U.S.C. § 924(e)(1). Among other things, that term includes “burglary, arson, or extortion, involves the use of explosives, or otherwise involves conduct that presents a" }, { "docid": "22836234", "title": "", "text": "BENAVIDES, Circuit Judge: In this case we consider whether a violation of Texas Penal Code § 38.04(b)(1) (evading arrest or detention by use of a vehicle) is a “violent felony” for the purposes of the Armed Career Criminal Act (“ACCA”), 18 U.S.C. § 924(e). We hold that it is. I On January 11, 2008, Defendanb-Appellee Richard Ray Harrimon pleaded guilty to two counts of possession of a firearm by a convicted felon in violation of 18 U.S.C. § 922(g)(1), which is generally punishable by up to ten years in prison, id. § 924(a)(2). The ACCA, however, “imposes a more stringent 15-year mandatory minimum sentence on an offender who has three prior convictions ‘for a violent felony or a serious drug offense.’ ” Begay v. United States, - U.S. -, 128 S.Ct. 1581, 1583, 170 L.Ed.2d 490 (2008) (quoting 18 § U.S.C. 924(e)(1)). Harrimon had three prior felony convictions relevant to this appeal: a conviction for burglary of a building in 1986 and convictions for evading arrest or detention by use of a vehicle (“fleeing by vehicle”) in violation of section 38.04(a) of the Texas Penal Code in 2003 and 2004. The probation office concluded that the ACCA’s fifteen-year mandatory minimum sentence did not apply because fleeing by vehicle is not a violent felony, and the government objected. At the sentencing hearing on June 13, 2008, the district court overruled the government’s objection and imposed concurrent sentences of ninety-six months of imprisonment followed by three years of supervised release for each count. The government timely appealed. II We review the district court’s interpretation and application of the Armed Career Criminal Act de novo. United States v. Helm, 502 F.3d 366, 367 (5th Cir.2007) (per curiam). For the purposes of the ACCA, a “violent felony” is “any crime punishable by imprisonment for a term exceeding one year” that: (i) has as an element the use, attempted use, or threatened use of physical force against the person of another; or (ii) is burglary, arson, or extortion, involves use of explosives, or otherwise involves conduct that presents a serious potential risk of physical injury" }, { "docid": "20259976", "title": "", "text": "officer’s application of the ACCA enhancement, arguing that his indecent liberties convictions were not violent felonies under Begay v. United States, 553 U.S. 137, 128 S.Ct. 1581, 170 L.Ed.2d 490 (2008), and United States v. Thornton, 554 F.3d 443 (4th Cir.2009) (holding that Virginia’s statutory rape offense is not a violent felony under ACCA). The government, in contrast, argued that the matter was controlled by United States v. Pierce, 278 F.3d 282 (4th Cir.2002), which held that a violation of N.C. Gen.Stat. § 14-202.1 is a “crime of violence” for purposes of the Sentencing Guidelines’ career offender en hancement, U.S.S.G. §§ 4B1.1, 4B1.2(a). The district court overruled Vanris objection, held that Vann was an armed career criminal under ACCA, and sentenced him to 180 months’ imprisonment. This appeal followed. II A violation of 18 U.S.C. § 922(g) ordinarily carries a maximum sentence of 10 years’ imprisonment. 18 U.S.C. § 924(a)(2). But ACCA provides a sentencing enhancement based on the defendant’s criminal history, providing that a person who violates § 922(g) and has “three previous convictions ... for a violent felony or a serious drug offense, or both, committed on occasions different from one another” must be sentenced to at least 15 years’ imprisonment. Id. § 924(e)(1). The Act defines a “violent felony” as “any crime punishable by imprisonment for a term exceeding one year” that: (i) has as an element the use, attempted use, or threatened use of physical force against the person of another; or (ii) is burglary, arson, or extortion, involves use of explosives, or otherwise involves conduct that presents a serious potential risk of physical injury to another!;.] Id. § 924(e)(2)(B). The government contends that Vanris three indecent liberties convictions qualify as “violent felonies” under the final, or “residual” clause in subparagraph (ii) of § 924(e)(2)(B), which qualifies crimes that “present[ ] a serious potential risk of physical injury to another” as “violent felonies.” To reach this conclusion, it makes three points. First, the government asserts that N.C. Gen.Stat. § 14-202.1 contains two distinct offenses for ACCA purposes, one set forth in subsection (a)(1) and the other" }, { "docid": "23468330", "title": "", "text": "SYKES, Circuit Judge. Anthony Dismuke was convicted by a jury of being a felon in possession of a firearm and sentenced to a statutorily mandated 15-year prison term based on three prior convictions the district court deemed to be “violent felonies” under the Armed Career Criminal Act (“ACCA”), 18 U.S.C. § 924(e). On appeal he challenges both his conviction and his sentence. Dismuke has a lengthy felony record and was found in possession of two handguns during a search of his home pursuant to a state-issued warrant. He moved to suppress the guns, but the district court denied the motion. On appeal Dismuke reiterates his claim that the guns were inadmissible because the affidavit submitted in support of the warrant application lacked sufficient corroboration of information supplied by a confidential informant. We disagree. Deferring as we must to the decision of the judge who issued the warrant, see United States v. McIntire, 516 F.3d 576, 577-78 (7th Cir.2008), we con- elude that the affidavit contained enough independent corroboration to support probable cause to search Dismuke’s home. And even if it did not, there is no reason to believe that the warrant-issuing judge abandoned his neutrality or that the police did not act in good faith. Accordingly, the guns were properly admitted at trial and Dismuke’s conviction is affirmed. Dismuke also challenges his sentence, arguing that under the Supreme Court’s decision in Begay v. United States, 553 U.S. 137, 128 S.Ct. 1581, 170 L.Ed.2d 490 (2008), his Wisconsin felony conviction for vehicular fleeing is not a “violent felony” under the ACCA and therefore should not have counted toward the three convictions necessary to subject him to the 15-year mandatory minimum sentence. We disagree with this contention as well. Applying Begay and reading our early postBegay decision in United States v. Spells, 537 F.3d 743 (7th Cir.2008), in light of the Supreme Court’s later decision in Chambers v. United States, — U.S. -, 129 S.Ct. 687, 172 L.Ed.2d 484 (2009), we conclude that Wisconsin’s vehicular-fleeing offense qualifies as a violent felony under the ACCA. I. Background On January 28, 2007, Milwaukee Police" }, { "docid": "22240858", "title": "", "text": "Cir.2003). The applicability of the savings clause is a threshold jurisdictional issue, and we “cannot reach ... questions” that “the district court never had jurisdiction to entertain.” Boone v. Sec’y, Dep’t of Corr., 377 F.3d 1315, 1316 (11th Cir.2004). If the savings clause does permit Williams’s § 2241 petition, the substantive issue — whether his prior convictions qualify as violent felonies under the Armed Career Criminal Act — is also a question of law we review de novo. United States v. Canty, 570 F.3d 1251, 1254 (11th Cir.2009). A. Williams contends that the savings clause of § 2255(e) permits him to file a § 2241 habeas petition to raise the claim that his sentence exceeds the statutory maximum authorized by 18 U.S.C. § 924. He argues, at bottom, that the Supreme Court’s recent run of ACCA cases, most notably Begay v. United States, 553 U.S. 137, 128 S.Ct. 1581, 170 L.Ed.2d 490 (2008), should lead us to conclude that his 1989 and 1990 burglary convictions are not violent felonies. Begay held that the ACCA’s residual clause should encompass only those “crimes that are roughly similar, in kind as well as in degree of risk posed, to the [enumerated crimes] themselves.” Id. at 143, 128 S.Ct. 1581. To test whether a state offense satisfies these conditions, a court must determine whether the crime involves “purposeful, violent, and aggressive conduct.” Id. at 144-45, 128 S.Ct. 1581 (internal quotation marks omitted). According to Williams, his 1989 and 1990 burglary convictions posed a lesser degree of risk than the ACCA’s enumerated crimes because the Florida statute encompassed conduct analogous to mere criminal trespass. Therefore, Williams avers, he was not properly subject to the ACCA enhancement that led to a sentence in excess of the otherwise applicable ten-year statutory maximum. But Williams has already challenged the characterization of his burglary convictions as violent felonies under the ACCA, and hence the application of the ACCA enhancement to his sentence. He cannot raise this claim again in a second or successive § 2255 motion. Section 2255’s savings clause dictates the narrow circumstances in which the district court" }, { "docid": "16950490", "title": "", "text": "HULL, Circuit Judge: After pleading guilty, Derwin Fritts appeals his total 180-month sentence for three counts of being a felon in possession of a firearm, in violation of 18 U.S.C. § 922(g). The district court sentenced Fritts as an armed career criminal under the Armed Career Criminal Act (“ACCA”), 18 U.S.C. § 924(e), based on Fritts’s prior convictions for: (1) aggravated assault and aggravated battery,, in violation of Florida Statutes §§ 784.021, 784.045; (2) robbery with a firearm, in violation of Florida Statutes § 812.13, and (3) sale of cocaine, in violation of Florida Statutes § 893.13. On appeal, Fritts argues that the district court erred in concluding that his 1989 armed robbery conviction qualifies as a “violent felony” under the elements clause of the ACCA. After review, we affirm. I. THE ACCA Under the ACCA, a defendant convicted of violating 18 U.S.C. § 922(g) is subject to a mandatory minimum sentence of 15 years (180 months) if he has three prior convictions for a “violent felony” or “serious drug offense.” 18 U.S.C. § 924(e)(1). A “violent felony” is any offense punishable by a term of imprisonment exceeding one year that: (i) has as an element the use, attempted use, or threatened use of physical force against the person of another; or (ii) is burglary, arson, or extortion, involves use of explosives, or otherwise involves conduct that presents a serious potential risk of physical injury to another. 18 U.S.C. § 924(e)(2)(B). The first prong of this definition is referred to as the “elements clause,” while the second prong contains the “enumerated crimes” clause and, finally, what is commonly called the “residual clause.” United States v. Owens, 672 F.3d 966, 968 (11th Cir. 2012). Fritts’s appeal concerns only the elements clause, as robbery is not an enumerated crime, and the Supreme Court struck down the ACCA’s residual clause as unconstitutionally vague in Johnson v. United States, 576 U.S. -,-, 135 S.Ct. 2551, 2557-58, 2563, 192 L.Ed.2d 569 (2015). Thus, we address whether a 1989 conviction for armed robbery with a firearm under Florida law “has as an element the use, attempted" }, { "docid": "15441202", "title": "", "text": "RIPPLE, Circuit Judge. Steven Smith was convicted of being a felon in possession of a firearm in violation of 18 U.S.C. §§ 922(g)(1) and 924(e). The district court found that Mr. Smith qualified for an enhanced sentence under the Armed Career Criminal Act, 18 U.S.C. § 924(e) (“ACCA” or “Act”), and therefore imposed a sentence of 240 months’ imprisonment. Mr. Smith now appeals his sentence, challenging whether, after the Supreme Court’s recent decision in Begay v. United States, — U.S. -, 128 S.Ct. 1581, 170 L.Ed.2d 490 (2008), a felony committed with a mens rea of recklessness may qualify as a prior violent felony conviction under the ACCA. For the reasons set forth in this opinion, we vacate the judgment of the district court and remand for further proceedings. I BACKGROUND The Armed Career Criminal Act provides that any defendant convicted of violating 18 U.S.C. § 922(g), who also has three prior convictions for “a violent felony or a serious drug offense,” shall be sentenced to not less than fifteen years’ imprisonment. 18 U.S.C. § 924(e)(1). The Act defines a violent felony as “any crime punishable by imprisonment for a term exceeding one year” that: (i) has as an element the use, attempted use, or threatened use of physical force against the person of another; or (ii) is burglary, arson, or extortion, involves use of explosives, or otherwise involves conduct that presents a serious potential risk of physical injury to another.... 18 U.S.C. § 924(e)(2)(B). In April 2006, Steven Smith sold fourteen stolen firearms to an undercover agent. Mr. Smith ultimately was convicted of being a felon in possession of a firearm, in violation of 18 U.S.C. §§ 922(g)(1) and 924(e). Prior to sentencing, the Government filed a memorandum requesting that Mr. Smith be sentenced as an armed career criminal under the ACCA. It identified three of Mr. Smith’s prior convictions as violent felonies: (1) a 2001 conviction for intimidation, a Class D felony; (2) a 2005 conviction for criminal recklessness with a deadly weapon, a Class D felony, see Ind. Code § 35-42-2-2; and (3) a 2006 conviction for" }, { "docid": "22307115", "title": "", "text": "law that barring Mr. Abernathy from proceeding under § 2241 raises concerns under the Suspension Clause. Accordingly, we affirm the district court’s dismissal of Mr. Abernathy’s § 2241 habeas petition for lack of statutory jurisdiction. I In 2001, Mr. Abernathy was convicted of unlawful possession of a firearm by a convicted felon, in violation of 18 U.S.C. § 922(g)(1). The 2001 Presentence Report (“PSR”) recommended that Mr. Abernathy be sentenced as an armed career criminal under the ACCA because his criminal history included three prior “violent felony” convictions: (1) a 1973 federal assault con viction; (2) the 1979 federal escape conviction; and (3) a 1990 Kansas state court conviction for aggravated robbery. Over Mr. Abernathy’s objection that his 1979 escape conviction did not qualify under the ACCA, the district court sentenced him to 293 months’ imprisonment as an armed career criminal. On direct appeal to the Eighth Circuit, Mr. Abernathy again argued that his 1979 escape conviction was not a qualifying conviction under the ACCA. The Eighth Circuit affirmed the district court, holding that the fact that Mr. Abernathy “merely walked away from his place of incarceration” did not take his conviction outside § 924(e)’s definition of a violent felony. United States v. Abernathy, 277 F.3d 1048, 1051 (8th Cir.2002). Mr. Abernathy filed a petition for certiorari to the United States Supreme Court, but it was denied. In 2002, Mr. Abernathy filed a pro se § 2255 petition to vacate his sentence in the Western District of Missouri, asserting several claims that were seemingly unrelated to his challenge to the ACCA predicate-offense status of his 1979 escape conviction. The district court denied the motion. Subsequently, the Eighth Circuit denied Mr. Abernathy a COA and dismissed the matter. In 2008, the Supreme Court held that a prior conviction does not constitute a “violent felony” under the ACCA unless it involves “purposeful, violent, and aggressive conduct.” Begay v. United States, 553 U.S. 137, 144-45, 128 S.Ct. 1581, 170 L.Ed.2d 490 (2008) (citation omitted) (internal quotation marks omitted). Following Begay, in Chambers, the Supreme Court held that a conviction for failure to report" }, { "docid": "12090655", "title": "", "text": "crime of violence, as it presented a serious potential risk of physical injury to another. The district court also observed that the judgment reflected that the conviction was “as indicted.” Mohr makes two arguments in support of his contention that his stalking convictions do not meet the definition of crime of violence under § 4B1.2. First, he argues that application of the recently-decided Supreme Court case of Begay v. United States precludes finding that stalking under the South Carolina statute is a crime of violence. Second, Mohr argues that the state court judgments reflect that the crime of which he was convicted was “nonviolent.” We address each of these arguments in turn. B Begay v. United States, — U.S.-, 128 S.Ct. 1581, 170 L.Ed.2d 490 (2008), decided after Mohr’s sentencing, dealt with the interpretation of a provision of the Armed Career Criminal Act (“ACCA”), 18 U.S.C. § 924(e)(2)(B). The ACCA increases the mandatory minimum sentence for an offender who has prior convictions for a violent felony or serious drug offense. 18 U.S.C. § 924(e)(1). The definition of “violent felony” is identical to that of “crime of violence” in the Guidelines context. Thus, the Supreme Court’s interpretation of § 924(e)(2)(B) guides us in applying the categorical approach to the residual clause of § 4B1.2. In Begay, the Supreme Court held that driving under the influence of alcohol (DUI) was not a violent felony under the ACCA because it did not fall into the scope of the residual clause. Begay limits violent felonies to those crimes which are similar to the enumerated offenses in § 924(e)(2)(B); namely, burglary, arson, extortion, or the use of explosives. Begay, 128 S.Ct. at 1585. The Begay court thus interpreted the residual clause of § 924(e)(2)(B) as covering only those crimes that are “roughly similar, in kind as well as in degree of risk posed, to the examples themselves.” Id. Mohr urges that under a similar interpretive approach, we cannot find stalking to be a crime of violence. The enumerated offenses under § 4B1.2(a) are murder, manslaughter, kidnaping, aggravated assault, forcible sex offenses, robbery, arson, extortion, extortionate" }, { "docid": "21558426", "title": "", "text": "Reversed, vacated, and remanded by published opinion. Judge DUNCAN wrote the opinion, in which Judge KING and Judge SHEDD joined. OPINION DUNCAN, Circuit Judge: A jury convicted Michael Ray Thornton of possessing a firearm and body armor in violation of 18 U.S.C. §§ 922(g)(1) and 931. During his sentencing, the district court classified Thornton as an armed career criminal subject to a sentence enhancement based in part on a 1986 statutory rape conviction. At issue on appeal is whether Virginia’s statutory rape offense, which makes it a crime to “carnally know[ ], without the use of force, a child” between thirteen and fifteen years of age, is a “violent felony” under the Armed Career Criminal Act (“ACCA”), 18 U.S.C. § 924(e)(2)(B). Because we find that Virginia’s carnal knowledge offense does not constitute a violent felony under the ACCA as interpreted by Begay v. United States, — U.S.-, 128 S.Ct. 1581, 170 L.Ed.2d 490 (2008), we are constrained to reverse. I. A grand jury indicted Thornton on March 24, 2005 for possession of a firearm by a convicted felon in violation of 18 U.S.C. § 922(g)(1) and for possession of body armor by a convicted felon in violation of 18 U.S.C. § 931. A jury convicted him on both counts on February 13, 2006. On May 12, 2006, the district court classified Thornton as an armed career criminal under 18 U.S.C. § 924(e) and sentenced him to a total of 204 months. The court based its sentence on four previous convictions, finding that any three would support Thornton’s classification as an armed career criminal: a July 1973 conviction for statutory burglary and maiming; an August 1986 conviction for aggravated sexual battery; an August 1986 conviction for attempted rape; and an August 1986 con viction for “carnal knowledge of a minor” between thirteen and fifteen years old. Thornton appealed, contesting his classification as an armed career criminal. We vacated his sentence and remanded the case in a March 21, 2007 unpublished opinion. United States v. Thornton, 222 Fed.Appx. 325 (4th Cir.2007). The opinion instructed the district court to determine whether Thornton’s aggravated" }, { "docid": "20259975", "title": "", "text": "Stat. § 14-202.1. The statute provides: (a) A person is guilty of taking indecent liberties with children if, being 16 years of age or more and at least five years older than the child in question, he either: (1) Willfully takes or attempts to take any immoral, improper, or indecent liberties with any child of either sex under the age of 16 years for the purpose of arousing or gratifying sexual desire; or (2) Willfully commits or attempts to commit any lewd or lascivious act upon or with the body or any part or member of the body of any child of either sex under the age of 16 years. (b) Taking indecent liberties with children is punishable as a Class F felony. The probation officer concluded that Vann’s indecent liberties convictions were “violent felonies,” and thus classified Vann as an armed career criminal under ACCA, subjecting Vann to a Sentencing Guidelines range of 180 to 210 months’ imprisonment and a mandatory minimum sentence of 180 months’ imprisonment. At sentencing, Vann objected to the probation officer’s application of the ACCA enhancement, arguing that his indecent liberties convictions were not violent felonies under Begay v. United States, 553 U.S. 137, 128 S.Ct. 1581, 170 L.Ed.2d 490 (2008), and United States v. Thornton, 554 F.3d 443 (4th Cir.2009) (holding that Virginia’s statutory rape offense is not a violent felony under ACCA). The government, in contrast, argued that the matter was controlled by United States v. Pierce, 278 F.3d 282 (4th Cir.2002), which held that a violation of N.C. Gen.Stat. § 14-202.1 is a “crime of violence” for purposes of the Sentencing Guidelines’ career offender en hancement, U.S.S.G. §§ 4B1.1, 4B1.2(a). The district court overruled Vanris objection, held that Vann was an armed career criminal under ACCA, and sentenced him to 180 months’ imprisonment. This appeal followed. II A violation of 18 U.S.C. § 922(g) ordinarily carries a maximum sentence of 10 years’ imprisonment. 18 U.S.C. § 924(a)(2). But ACCA provides a sentencing enhancement based on the defendant’s criminal history, providing that a person who violates § 922(g) and has “three previous convictions" }, { "docid": "11877287", "title": "", "text": "Vacated and remanded by published opinion. Senior Judge HAMILTON wrote the opinion, in which Senior Judge ELLIS joined. Judge NIEMEYER wrote a dissenting opinion. OPINION HAMILTON, Senior Circuit Judge: The Armed Career Criminal Act (ACCA) imposes a mandatory minimum fifteen-year sentence on felons who unlawfully possess, among other things, firearms, and who also have three or more previous convictions for committing certain drug crimes or “violent felon[ies].” 18 U.S.C. § 924(e)(1). In United States v. James, this court held that a South Carolina failure to stop for a blue light violation, S.C.Code Ann. § 56-5-750(A), constitutes a violent felony under the ACCA. 337 F.3d 387, 390-91 (4th Cir.2003). The principal issue presented in this appeal is whether the test we applied in James for determining when a crime constitutes a violent felony under the ACCA survives the United States Supreme Court’s decision in Begay v. United States, — U.S. -, 128 S.Ct. 1581, 170 L.Ed.2d 490 (2008). We conclude that it does not. I The relevant facts of this case are not in dispute. On January 23, 2006, a federal grand jury sitting in the Western District of North Carolina charged Ralph Roseboro with violating 18 U.S.C. § 922(g)(1), which prohibits felons from possessing, among other things, firearms. On June 29, 2006, a jury convicted Roseboro of this offense. In preparation for sentencing, a probation officer prepared a presentence investigation report (PSR). The probation officer calculated Roseboro’s Base Offense Level to be 14, United States Sentencing Commission, Guidelines Manual (USSG), § 2K2.1(a)(6). Two levels were added because the firearm Roseboro possessed was stolen. Id. § 2K2.1(b)(4). Because Rose-boro possessed the firearm in connection with another felony offense, namely, burglary, Roseboro’s Offense Level was increased by four more levels. Id. § 2K2.1(b)(5). Finally, because the probation officer determined that Roseboro obstructed justice, Roseboro’s Offense Level was increased by two more levels, id. § 3C1.1, resulting in a Total Offense Level of 22. The Total Offense Level of 22, when coupled with a Criminal History Category VI, produced a sentencing range of 84 to 105 months’ imprisonment. Both the government and Roseboro" }, { "docid": "18029187", "title": "", "text": "the enumerated crimes of \"burglary of a dwelling, arson, or extortion” and those involving the \"use of explosives.” Id. § 4B 1.2(a)(2). The third category, sometimes referred to as \"residual clause” crimes, includes those crimes that \"otherwise involve!] conduct that presents a serious potential risk of physical injury to another.” Id. . A person commits battery on a law enforcement officer if he “[a]ctually and intentionally touches or strikes [a law enforcement officer] against the will of the [officer]; or [intentionally causes bodily harm to [the officer]” while the officer is engaged in the lawful performance of his or her duties. Fla. Stat. §§ 784.03(l)(a), 784.07(2). . In Sykes and James, the Supreme Court interpreted the definition of \"violent felony” under the Armed Career Criminal Act, 18 U.S.C. § 924(e). “In determining whether a conviction is a crime of violence under U.S.S.G. § 4B1.2, we also rely on cases interpreting the residual clause of the [ACCA] because the § 4B1.2 definition of crime of violence’ and ACCA’s definition of 'violent felony’ are substantially the same.” Chitwood, 676 F.3d at 975 n. 2 (citation omitted); see also United States v. Archer, 531 F.3d 1347, 1350 n. 1 (11th Cir.2008). . In United States v. Williams, 609 F.3d 1168, 1169-70 (11th Cir.2010), we held that, based on the Court's decision in Johnson, “the fact of a conviction for felony battery on a law enforcement officer in Florida, standing alone, no longer satisfies the ‘crime of violence’ enhancement criteria as defined under the [elements clause] of section 4B 1.2(a)(1) of the sentencing guidelines.” . To the extent that Rozier contends that the decision in Begay v. United States, 553 U.S. 137, 128 S.Ct. 1581, 170 L.Ed.2d 490 (2008), requires that he be given § 2255 relief from our decision affirming his sentence, that contention is unpersuasive. The Begay case did not involve a Florida battery conviction, an element of which is purposeful, violent, or aggressive conduct. Instead, it involved a DUI conviction, which does not require purposeful, violent, or aggressive conduct. Begay, 553 U.S. at 145, 128 S.Ct. at 1586. As the Supreme" }, { "docid": "22240857", "title": "", "text": "savings clause issue was nonjurisdictional and thus we should accept the government’s initial concession and go to the merits of his claim. Moreover, he said, this Court’s ACCA precedents — while not specifically addressing the issue of whether Florida burglary of a dwelling was a violent felony — did foreclose his sentencing claim prior to Be-gay. In response, the government argued that Williams failed to satisfy Wofford’s requirement that his claim be based upon a retroactively applicable Supreme Court decision overturning circuit precedent. The government said that there was no controlling circuit precedent that foreclosed Williams’s claim during his direct appeal and that, in any case, none of the Supreme Court’s subsequent ACCA decisions cast doubt on whether Fla. Stat. § 810.02 is a violent felony. Thus, the savings clause did not permit Williams’s § 2241 petition. II. Whether a prisoner may bring a 28 U.S.C. § 2241 petition under the savings clause of § 2255(e) is a question of law we review de novo. Sawyer v. Holder, 326 F.3d 1363, 1365 n. 4 (11th Cir.2003). The applicability of the savings clause is a threshold jurisdictional issue, and we “cannot reach ... questions” that “the district court never had jurisdiction to entertain.” Boone v. Sec’y, Dep’t of Corr., 377 F.3d 1315, 1316 (11th Cir.2004). If the savings clause does permit Williams’s § 2241 petition, the substantive issue — whether his prior convictions qualify as violent felonies under the Armed Career Criminal Act — is also a question of law we review de novo. United States v. Canty, 570 F.3d 1251, 1254 (11th Cir.2009). A. Williams contends that the savings clause of § 2255(e) permits him to file a § 2241 habeas petition to raise the claim that his sentence exceeds the statutory maximum authorized by 18 U.S.C. § 924. He argues, at bottom, that the Supreme Court’s recent run of ACCA cases, most notably Begay v. United States, 553 U.S. 137, 128 S.Ct. 1581, 170 L.Ed.2d 490 (2008), should lead us to conclude that his 1989 and 1990 burglary convictions are not violent felonies. Begay held that the ACCA’s residual" }, { "docid": "18099568", "title": "", "text": "and found McMurray guilty. Prior to sentencing, U.S. Probation Services prepared a Presentence Investigation Report (“PSR”), which concluded that McMurray had been convicted of three prior violent felonies and therefore qualified for a sentence enhancement under the ACCA, 18 U.S.C. § 924(e). Specifically, the PSR concluded that McMurray qualified as an armed career criminal based on the following Tennessee convictions: (1) aggravated assault in 1986, (2) armed robbery in 1987, and (3) aggravated assault in 1993. McMurray challenged the application of the ACCA for the two reasons that he now asserts on appeal. At a sentencing hearing held on June 17, 2009, however, the district court rejected McMurray’s arguments that he did not qualify for an enhancement under the ACCA. On June 19, 2009, the district court entered its judgment, sentencing McMurray to 180 months of imprisonment, the statutorily mandated minimum under the ACCA. II. ANALYSIS A. Armed Career Criminal Act McMurray faced a maximum prison term of ten years for violating 18 U.S.C. § 922(g), the felon-in-possession-of-a-firearm statute. 18 U.S.C. § 924(a)(2). Pursuant to the ACCA, however, a defendant convicted under § 922(g) who “has three previous convictions ... for a violent felony or a serious drug offense, or both,” must be sentenced to “not less than 15 years” of imprisonment. Id. § 924(e)(1). A “violent felony” is “any crime punishable by imprisonment for a term exceeding one year” that “(i) has as an element the use, attempted use, or threatened use of physical force against the person of another; or (ii) is burglary, arson, or extortion, involves use of explosives, or otherwise involves conduct that presents a serious potential risk of physical injury to another.” Id. § 924(e)(2)(B). B. Constitutional Challenges McMurray first argues that violating the ACCA is “a separate criminal offense,” and, therefore, pursuant to the Due Process Clause, the predicate felony convictions must be included in the indictment and proven beyond a reasonable doubt. Appellant Br. at 11. He argues that his “conviction for being an armed career criminal felon should be vacated.” Id. We review de novo challenges to the sufficiency of an indictment." } ]

[ { "docid": "22696499", "title": "", "text": "produce the prisoner’s body before the habeas court. Ibid. We summed up the plain language of the habeas statute over 100 years ago in this way: “[Tjhese provisions contemplate a proceeding against some person who has the immediate custody of the party detained, with the power to produce the. body of such party before the court or judge, that he may be liberated if no sufficient reason is shown to the contrary.” Wales v. Whitney, 114 U. S. 564, 574 (1885) (emphasis added); see also Braden v. 80th Judicial Circuit Court of Ky., 410 U. S. 484, 494-495 (1973) (“The writ of habeas corpus” acts upon “the person who holds [the detainee] in what is alleged to be unlawful custody,” citing Wales, supra, at 574); Braden, supra, at 495 (“ ‘[T]his writ... is directed to... [the] jailer,’ ” quoting In re Jackson, 15 Mich. 417, 439-440 (1867)). In accord with the statutory language and Wales' immediate custodian rule, longstanding practice confirms that in ha-beas challenges to present physical confinement — “core challenges” — the default rule is that the proper respondent is the warden of the facility where the prisoner is being held, not the Attorney General or some other remote supervisory official. See, e. g., Hogan v. Hanks, 97 F. 3d 189, 190 (CA7 1996); Brittingham v. United States, 982 F. 2d 378, 379 (CA9 1992); Blango v. Thornburgh, 942 F. 2d 1487, 1491-1492 (CA10 1991) (per curiam); Brennan v. Cunningham, 813 F. 2d 1, 12 (CA1 1987); Guerra v. Meese, 786 F. 2d 414, 416 (CADC 1986) (per curiam); Billiteri v. United States Bd. of Parole, 541 F. 2d 938, 948 (CA2 1976); Sanders v. Bennett, 148 F. 2d 19, 20 (CADC 1945); Jones v. Biddle, 131 F. 2d 853, 854 (CA8 1942). No exceptions to this rule, either recog nized or proposed, see post, at 454 (Kennedy, J., concurring), apply here. If the Wales immediate custodian rule applies in this case, Commander Marr — the equivalent of the warden at the military brig — is the proper respondent, not Secretary Rumsfeld. See Al-Marri v. Rumsfeld, 360 F." } ]

[ { "docid": "22893394", "title": "", "text": "absolutely immune from suit where the allegations relate solely to his initiating and presenting a criminal case. The allegations of the complaint implicating Horowitz all related to actions in his role as an advocate, rather than as an administrator or investigator. See Imbler, supra, 424 U.S. at 431, 96 S.Ct. at 995, 47 L.Ed.2d at 144, 44 U.S.L.W. at 4257 & n.33. Thus, the district court did not err in holding Horowitz immune from this suit and dismissing the complaint as to him for failure to state a claim. III. Before considering whether the district court properly dismissed the complaint as to Mauceli, we must determine whether the trial court erred in reaching the issue of Mauceli’s immunity. The district court ruled that the United States had legal authority to represent Mauceli’s interests. We agree. Appellants’ argument is multifaceted. First, they argue that the Department of Justice possesses no statutory or regulatory authority to represent a nongovernment defendant in a civil case. This contention approaches the frivolous. 28 U.S.C. § 517 provides: The Solicitor General, or any officer of the Department of Justice, may be sent by the Attorney General to any State or district in the United States to attend to the interests of the United States in a suit pending in a court of the United States, or in a court of a State, or to attend to any other interest of the United States. The statutory language does not limit representation to any class of cases; the only explicit limitation is that the interests of the United States be at stake. Judge Friendly summarized the law under the predecessor statute to § 517: Appellants claim in the first instance that the suggestion was unauthorized since the United States has no financial interest in the litigation. But the statute, 5 U.S.C. § 316, is not limited by its terms to cases of financial interest; it authorizes the Attorney General to send any officer of the Department of Justice “to attend to the interests of the United States in any suit pending in any of the courts of the" }, { "docid": "16557895", "title": "", "text": "corrections for the warden who was named respondent in a habeas petition. Bridges v. Chambers, 425 F.3d 1048, 1050 (7th Cir. 2005). There, we observed: The fact that a superior officer can arrange for the petitioner’s release need not imply that the superior has “custody” of the person. We can order a petitioner released if we find that he is being held in violation of federal law, but that does not make us his custodian. Id. Similarly, Ms. Achim’s authority to arrange for Mr. Kholyavskiy’s release does not make her his immediate custodian for habeas purposes. See Padilla, 542 U.S. at 439, 124 S.Ct. 2711 (“In challenges to present physical confinement, we reaffirm that the immediate custodian, not a supervisory official who exercises legal control, is the proper respondent.”). Conclusion Because Mr. Kholyavskiy did not name his immediate custodian in challenging his present physical confinement in Kenosha, we must affirm the dismissal of his petition for habeas corpus. Affirmed. . The office of Immigration and Customs Enforcement, a unit of the Department of Homeland Security, has assumed responsibility for enforcement of the immigration laws after implementation of the Homeland Security Act of 2002, Pub.L. No. 107-296, 116 Stat. 2135. See generally Ashton v. Gonzales, 431 F.3d 95, 96 n. 2 (2d Cir.2005). The old INS district directors are now titled \"Field Office Directors,” but their functions remain the same. See 8 C.F.R. § l.l(o) (2005). . Congress also has instructed that a district court may issue a writ only “within [its] respective jurisdiction.” 28 U.S.C. § 2241(a). This means, in most cases, that the named custodian must reside within the geographical confines of the federal district where the complaint was filed. See Rumsfeld v. Padilla, 542 U.S. 426, 443, 124 S.Ct. 2711, 159 L.Ed.2d 513 (2004). There are two statutory exceptions to this rule that are not relevant here: (1) that a prisoner serving a state criminal sentence in a state that contains more than one federal district may file in either district, see 28 U.S.C. § 2241(d); and (2) that a federal prisoner collaterally attacking his criminal sentence may" }, { "docid": "17712251", "title": "", "text": "CUMMINGS, Chief Judge. This is an appeal of two federal prisoners from the district court’s grant of summary judgment for defendant Harold G. Miller, dismissing their petitions for writ of habe-as corpus. For the reasons set forth below we affirm the decision of the district court. I This matter was brought before United States Magistrate Kenneth J. Meyers, with the consent of the parties pursuant to 28 U.S.C. § 636(c). The habeas actions were consolidated in the district court. Plaintiffs currently are inmates incarcerated at the United States Penitentiary in Marion, Illinois. While they were incarcerated at the United States Penitentiary in Lewis-burg, Pennsylvania, the prisoners were charged with conspiracy to assault and murder another inmate. Although no criminal charges were filed against them, they were each found by the Institution Disciplinary Committee on May 10, 1983, to have violated institutional regulations and were subjected to administrative sanctions including transfer to the maximum security institution at Marion, Illinois. After imposition of the sanctions the prisoners filed certain administrative appeals with the Bureau of Prisons (“BOP”) and ultimately petitions for writ of habeas corpus challenging the sanctions with the United States Court for the Middle District of Pennsylvania. The Pennsylvania district court on October 11 and 12, 1983, entered judgment on the dismissal of the actions because the prisoners had failed to exhaust their administrative remedies with the Bureau of Prisons. See Kirk v. Wilkerson, Warden, et al., No. 83-1043 (M.D.Pa. Oct. 11, 1983); Anderson v. Wilkerson, Warden, et al., No. 83-0957 (M.D.Pa. Oct. 12, 1983). A second complaint was filed by Anderson on May 13, 1983, with the Pennsylvania court seeking an injunction and writ of mandamus concerning the investigation of the same Lewisburg assault and murder incident. The district court dismissed that complaint on March 12, 1984, for failure to prosecute. Apparently some time between May of 1983 and February of 1984, the prisoners were transferred from the Lewis-burg to the Marion facility (Br. 3). On February 24, 1984, plaintiffs filed the instant habeas petitions against the Marion, Illinois, prison warden, again challenging the imposition of sanctions arising out" }, { "docid": "19710514", "title": "", "text": "as eligible for assigned counsel, (id.), and Johnson formally obtained counsel on March 12, 2013, (Docket # 36). Johnson argues that his detention is not authorized under 8 U.S.C. § 1226(c) because he was not taken into ICE custody until nearly four years after his release from state criminal custody. He also argues that his prolonged detention violates his right to due process under the Fifth Amendment to the United States Constitution. DISCUSSION I. Jurisdiction This Court has subject matter jurisdiction to review the instant petition for writ of habeas corpus pursuant to 28 U.S.C. §§ 2241(a) & (c). Section 236 of the Immigration and Nationality Act (the “INA”), codified at 8 U.S.C. § 1226, provides in part that “[t]he Attorney General’s discretionary judgment regarding the application of this section shall not be subject to review.” 8 U.S.C. § 1226(e). Johnson has not challenged the Attorney General’s discretion. Instead, Johnson has challenged the interpretation of “the statutory framework that permits his detention without bail.” Demore v. Kim, 538 U.S. 510, 517, 123 S.Ct. 1708, 155 L.Ed.2d 724 (2003). The Supreme Court has determined that section 1226(e) does not deprive district courts of jurisdiction to hear such a challenge. Id. at 516-17,123 S.Ct. 1708. Neither party has contested this Court’s personal jurisdiction. Venue is proper because “a substantial part of the events ... giving rise to the claim occurred” within this district. 28 U.S.C. § 1391(e). A habeas petition should name as respondent “the person who has custody over [the petitioner].” 28 U.S.C. § 2242. In accord with the “immediate custodian rule, longstanding practice confirms that in habeas challenges to present physical confinement ... the default rule is that the proper respondent is the warden of the facility where the prisoner is being held, not the Attorney General or some other remote supervisory official.” Rumsfeld v. Padilla, 542 U.S. 426, 435, 124 S.Ct. 2711, 159 L.Ed.2d 513 (2004) (citations omitted). Although the Supreme Court in Padilla “left open the question whether the Attorney General is a proper respondent to a habeas petition filed by an alien detained pending deportation,” id. at" }, { "docid": "15742984", "title": "", "text": "MacKINNON, Circuit Judge: Norma J. Goode was convicted in the United States District Court for the District of Columbia of possession of narcotics with intent to distribute in violation of 21 U.S.C. § 841(a). On July 22, 1976, the court sentenced her to prison for a term of twenty months to five years (hereafter “narcotics sentence”). Subsequently, Goode was convicted in the Superior Court for the District of Columbia of armed robbery in violation of D.C.Code § 22-2901. On October 27, 1976, that court sentenced her to prison for a term of two to six years (hereafter “armed robbery sentence”). The armed robbery sentence was to run consecutively to the narcotics sentence. Together, the two sentences totalled forty-four months to eleven years. In accordance with the applicable statutes, Goode was committed to the custody of the Attorney General of the United States for incarceration under both sen-fences. Pursuant to these same provisions, the Attorney General designated the federal penitentiary at Alderson, West Virginia as the place of confinement where both of Goode’s sentences were to be served. In November 1977 Goode applied to Warden Carson Markley of the Alderson penitentiary for a January 1978 parole hearing on her narcotics sentence. Goode reasoned that as of February 1978 she would have served one-third of her narcotics sentence and would therefore be entitled to a parole hearing — and to be eligible for parole — on that sentence notwithstanding the fact that she had not yet served any portion of her armed robbery sentence. Warden Markley denied her application. Goode then appealed to the Regional Director of the Bureau of Prisons, the Director of the Bureau of Prisons, the Attorney General, the United States Parole Commission, the District of Columbia Board of Parole, and the District of Columbia Department of Corrections, and these appeals were also denied. In consequence she filed petitions for a writ of habeas corpus, or in the alternative for a writ of mandamus, contending that these administrative agencies unlawfully denied her a parole hearing. The district court dismissed the suit as frivolous, see 28 U.S.C. § 1915(d) (1976)," }, { "docid": "15102743", "title": "", "text": "PANNER, District Judge. INTRODUCTION Brady and Crawford, appearing pro se, appeal the dismissal of their consolidated actions. They challenge conditions of their confinement in a federal penitentiary and seek injunctive relief and punitive damages for violation of their constitutional rights against the Attorney General of the United States, the Director of the Bureau of Prisons, and the Warden of the Penitentiary. The district court granted defendant’s motion to dismiss because appellants failed to exhaust administrative remedies and because the claims were moot. We affirm. HISTORY In 1977, appellants Brady and Crawford filed virtually identical complaints for in-junctive relief, damages and petitions for writs of habeas corpus against the defendants challenging the conditions of their confinement at McNeil Island Penitentiary. Crawford’s complaint was dismissed and he appealed. In Crawford v. Bell, 599 F.2d 890 (9th Cir. 1979), this court affirmed the district court’s dismissal of Crawford’s petition for a writ of habeas corpus and those portions of Crawford’s complaint which duplicated a pending class action. Thereafter, the class action suit brought on behalf of all McNeil prisoners was dismissed by the district court because the parties stipulated that the issue of unconstitutional overcrowding was moot. On December 13, 1979 the district court consolidated the appellants’ cases to consider the issues in their complaints which were not disposed of by the class action dismissal. These issues were whether: (1) the prison library was inadequate; (2) unsanitary conditions in the prison slaughterhouse caused food poisoning; (3) the prison had interfered with visitation rights; and (4) the appellants are entitled to $100,000 each as punitive damages for violations of their constitutional rights. The district court granted the respondents’ motion to dismiss because the petitioners failed to exhaust their administrative remedies and because the claims were moot. DISCUSSION Appellants are no longer incarcerated at McNeil. That institution was converted from a United States penitentiary to a federal prison camp on September 26, 1979. The conditions at McNeil at the same time of dismissal by the District Judge were completely different from the conditions existing during the time of appellants’ incarceration. Dismissal with respect to issues" }, { "docid": "9350827", "title": "", "text": "habeas corpus). Habeas corpus is also the exclusive avenue available to a District of Columbia prisoner challenging the manner of execution of a sentence, rather than the sentence itself. See Bennett v. Ridley, 633 A.2d 824, 827 (D.C.App.1993) (challenge to parole revocation must be brought as habeas corpus action); Alston, 590 A.2d at 514 (Claims challenging the computation of a sentence may not be raised under D.C.Code § 23-110, rather “because such contentions concern the executive department’s execution of a sentence, they must be raised in a habeas corpus petition.”); Jones v. Jackson, 416 A.2d 249, 251 (D.C.App.1980) (challenge to parole procedures must be brought as habeas corpus). However, just as the ability of a prisoner to mount a collateral attack upon a Superior Court sentence is circumscribed by § 23-110, the habeas corpus relief available to prisoners incarcerated in District of Columbia facilities is circumscribed by D.C.Code § 16-1901. Habeas petitions are directed to a prisoner’s custodian. See Braden v. 30th Judicial Circuit, 410 U.S. 484, 495, 93 S.Ct. 1123, 1130, 35 L.Ed.2d 443 (1973) (habeas corpus requires that the court issuing the writ have jurisdiction over the custodian); Schlanger v. Seamans, 401 U.S. 487, 490-91, 91 S.Ct. 995, 998, 28 L.Ed.2d 251 (1971) (proper to dismiss habeas corpus petition where court lacks personal jurisdiction over petitioner’s custodian). In all but extraordinary cases a petitioner’s custodian is the warden of the facility where the petitioner is incarcerated. See Guerra v. Meese, 786 F.2d 414, 417 (D.C.Cir.1986) (wardens of the federal facilities at which they were confined, rather than Parole Commission, were custodians of the prisoners and were the proper respondents of the prisoners’ habeas petitions). D.C.Code § 16-1901 provides that, if the habeas petition is directed to a federal official, the petition is to be filed in the United States District Court for the District of Columbia. If the petition is directed to any other official, the petition is to be filed in the District of Columbia Superior Court. Accordingly, prisoners convicted in the District of Columbia Superior Court and incarcerated in District of Columbia facilities must file their" }, { "docid": "22263460", "title": "", "text": "Wellington E. Webb (Mayor, Denver); John Simonet (Undersheriff, Denver); Fred Oliva (Chief Operating Officer, Denver County Jail) and Dr. Seymour Sundell (Physician, Denver General Hospital's Inmate Ward). . Subsequently, the district court granted summary judgment to the defendant State of Colorado on Mr. White’s petition for writ of habeas corpus, and another panel of this court affirmed that decision. White v. Colorado, 1998 WL 339655 (10th Cir.1998) (unpublished disposition). . Section 19.15(g), the so-called \"three strikes” provision of the in forma pauperis statute, provides: In no event shall a prisoner bring a civil action or appeal a judgment in a civil action or proceeding under this section if the prisoner has, on 3 or more prior occasions, while incarcerated or .detained in any facility, brought an action or appeal in a court of the United States that was dismissed on the grounds that it is frivolous, malicious, or fails to state a claim upon which relief may be granted, unless the prisoner is under imminent danger of serious physical injury. 28 U.S.C. § 1915(g). . Mr. White does not challenge the district court’s finding that he has \"three strikes,” i.e., three actions dismissed for failure to state a claim. . Even if this court were to consider the allegations contained in Mr. White’s Declaration, appended to the Petitioners' motion for a preliminary injunction, his claim would still fail because those appear to be the same allegations raised and dismissed in Mr. White’s petition for writ of habeas corpus. See White, 1998 WL 339655. . In Roller, the Fourth Circuit rejected a prisoner’s claim that the filing fee and cost provisions of the Prison Litigation Reform Act, 28 U.S.C. §§ 1915(b)(1), (b)(2) and (b)(4) violated his constitutional right of access to the courts. Roller, 107 F.3d at 231-33. Section 1915(g) was not specifically challenged in Roller. . In Bounds, actions were brought by state inmates alleging the State of North Carolina's failure to provide them with adequate legal library facilities denied them reasonable access to the courts and equal protection as guaranteed by the First and Fourteenth Amendments. Bounds, 430 U.S." }, { "docid": "16599233", "title": "", "text": "is a broad one that includes any person empowered to end restraint of a habeas petitioner’s liberty, not just the petitioner’s on-site, immediate physical custodian. 3) Ninth Circuit Case Law The Ninth Circuit’s habeas jurisprudence has often applied the rule that a .petitioner’s immediate physical custodian is the proper respondent in the context of traditional habeas petitions, but has recognized that the custodian requirement may be flexibly interpreted to encompass other custodians when it is efficient to do so. Brittingham v. United States, 982 F.2d 378 (9th Cir.1992), a brief opinion issued after the trilogy of Supreme Court cases discussed above, did not examine those cases. Rejecting a petitioner’s contention that the United States Marshal for the District of Hawaii was his custodian, Brit-tingham held that a habeas petitioner’s immediate physical custodian is the proper respondent to a petition: “The proper respondent in a federal habeas corpus petition is the petitioner’s ‘immediate custodian.’ A custodian ‘is the person having a day-to-day control over the prisoner. That person is the only one who can produce ‘the body’ of the petitioner.’ ” Id. at 379(internal citations omitted). As Brit-tingham was temporarily detained in a California state facility used for the detention of federal prisoners when he first filed his habeas petition, this court found that Brittingham’s custodian was the warden of the California state facility, not the federal marshal responsible for transporting him to a federal prison where he might eventually be detained. Id. at 379-80. Since Brittingham, however, this court has veered toward a more flexible approach. Ortiz-Sandoval v. Gomez held that a state prisoner could name the California Director of Corrections as a respondent to his habeas action instead of the warden of the prison where he was incarcerated. 81 F.3d at 896. Although the court observed that the warden is the “typical respondent,” it recognized that the advisory committee notes to 28 U.S.C. § 2254 provided that the named respondent to the action could be the warden, the chief officer in charge of state penal institutions, or, in some cases, the Attorney General. Id. at 894. Thus, the advisory" }, { "docid": "7035873", "title": "", "text": "denied his application for relief. In 1992, Pleasant pled guilty in federal district court to possession of a firearm by a felon, and the court sentenced him to a term of imprisonment of 180 months followed by a five-year term of supervised release. This sentence was based, in part, on an enhancement pursuant to 18 U.S.C. § 924(e) that was applicable as a result of Pleasant’s 1961 Texas conviction. Pleasant appealed, and a panel of this court affirmed the district court’s judgment of conviction and sentence. Pleasant then filed a petition for federal habeas corpus relief pursuant to 28 U.S.C. § 2255 arguing that (1) his federal trial counsel was ineffective for failing to investigate his prior Texas convictions before allowing him to plead guilty and (2) the district court’s reliance on his two prior invalid convictions for sentencing enhancement purposes was a violation of his right to due process. A panel of this court dismissed Pleasant’s petition, finding that he had failed to raise any non-frivolous issues. See United States v. Pleasant, 43 F.3d 668 (5th Cir.1994) (unpublished). Pleasant thereafter filed the instant petition for federal habeas corpus relief pursuant to 28 U.S.C. § 2254, alleging that he satisfies the statute’s “in custody” requirement because his Texas conviction was used to enhance the federal sentence for which he is currently incarcerated. Respondent-Appel-lee-Cross-Appellant the State of Texas (the State) argued that the application should be construed as a § 2255 petition and that the warden of FCI Three Rivers, the federal institution where Pleasant currently is incarcerated, should replace the State as the respondent. The district court declined to substitute the warden of FCI Three Rivers for the State because it determined that Pleasant’s federal sentence cannot be challenged until the Texas conviction has been successfully challenged through a habeas corpus proceeding. It therefore assigned the matter to a magistrate judge “for disposition of non-dis-positive pre-trial matters and recommendations regarding ease dispositive motions.” The State thereafter filed a motion for reconsideration and, alternatively, a motion to dismiss for lack of subject matter jurisdiction. The district court denied the State’s motions," }, { "docid": "9350828", "title": "", "text": "(1973) (habeas corpus requires that the court issuing the writ have jurisdiction over the custodian); Schlanger v. Seamans, 401 U.S. 487, 490-91, 91 S.Ct. 995, 998, 28 L.Ed.2d 251 (1971) (proper to dismiss habeas corpus petition where court lacks personal jurisdiction over petitioner’s custodian). In all but extraordinary cases a petitioner’s custodian is the warden of the facility where the petitioner is incarcerated. See Guerra v. Meese, 786 F.2d 414, 417 (D.C.Cir.1986) (wardens of the federal facilities at which they were confined, rather than Parole Commission, were custodians of the prisoners and were the proper respondents of the prisoners’ habeas petitions). D.C.Code § 16-1901 provides that, if the habeas petition is directed to a federal official, the petition is to be filed in the United States District Court for the District of Columbia. If the petition is directed to any other official, the petition is to be filed in the District of Columbia Superior Court. Accordingly, prisoners convicted in the District of Columbia Superior Court and incarcerated in District of Columbia facilities must file their petitions in Superior Court, while prisoners convicted in Superior Court but incarcerated in federal facilities must file their petitions in the United States District Court for the District of Columbia. D.C.Code § 16 — 1901(b), (c). The general requirement that a prisoner exhaust his local remedies is therefore distinguishable from the jurisdictional limitations imposed by the Court Reform Act. The former dictates that appeal of the Superior Court’s denial of a § 23-110 motion or § 16-1901 petition to the District of Columbia Court of Appeals should be required before the United States District Court for the District of Columbia attempts to ascertain whether the local remedy is inadequate or ineffective; this allows a prisoner sentenced in the Superior Court to exploit fully his or her remedy in the District of Columbia courts. The latter — together with the requirement that habeas petitions be brought in the district where the petitioner is confined on the date of filing — effectively elimi nates the jurisdictional reach of the United States District Court for the District of" }, { "docid": "18560120", "title": "", "text": "are located. His claim is that he is also free to bring the action in the District of Columbia because it is here that his “ultimate custodian,” the Secretary of the Navy, resides. Nothing in Braden supports this assertion and we reject it. We hold that for purposes of the federal habeas corpus statute, jurisdiction is proper only in the district in which the immediate, not the ultimate, custodian is located. Our decision today is controlled by Sanders v. Bennett, 148 F.2d 19 (D.C.Cir.1945). In Sanders, a federal prisoner, confined outside the District of Columbia, applied for a writ of habeas corpus to the district court for the District of Columbia. The district court dismissed for lack of jurisdiction. On appeal, the prisoner argued that jurisdiction was proper because he was in the “custody” of the Attorney General, an official over whom the district court had jurisdiction. Judge Arnold framed the question as “whether a court in the District of Columbia has jurisdiction to issue a writ of habeas corpus against the Attorney General of the United States or his representative on petition of a federal prisoner confined outside the District of Columbia,” id. at 19, and held that it does not. “[Ojnly courts having jurisdiction over the warden of a penitentiary can grant a writ of habeas corpus on behalf of any of its inmates.” Id. at 20 (footnote omitted). Guerra v. Meese, 786 F.2d 414 (D.C.Cir. 1986), decided just this term, applied the Sanders rule to a habeas petition filed in the District of Columbia by federal prisoners challenging action by the United States Parole Commission. Though the petitioners were serving sentences in various federal prisons around the country, they argued that jurisdiction was proper since the Commission could be considered as their custodian for purposes of challenging Commission action which prevented their release. The court rejected this argument, holding that “the warden of [the federal penal facility in which a prisoner is currently serving his sentence] is the prisoner’s custodian within the meaning of 28 U.S.C. §§ 2241-43 (1982).” Id. at 416. In reaching this conclusion, the" }, { "docid": "22934542", "title": "", "text": "denied habeas relief. The California Supreme Court denied review. On September 9, 1992, Ortiz-Sandoval filed a petition for writ of habeas corpus in U.S. District Court. The court issued an order to show cause, finding that Ortiz-Sandoval had stated cognizable claims of ineffective assistance of counsel and due process violations. The court dismissed the claims that were based solely on violations of California law. After receiving a response from the State, the district court entered an order denying the petition. Ortiz-Sandoval appeals. We have jurisdiction pursuant 28 U.S.C. §§ 1291 and 2253. II In his petition, Ortiz-Sandoval named California Director of Corrections James Gomez as respondent. At our request, the parties submitted supplemental briefs on the question whether the district court lacked jurisdiction because Ortiz-Sandoval named Gomez rather than the warden of the prison where Ortiz-Sandoval is incarcerated. We review this question of personal jurisdiction de novo. Reebok Int’l Ltd. v. McLaughlin, 49 F.3d 1387, 1390 (9th Cir.), cert. denied, - U.S. -, 116 S.Ct. 276, 133 L.Ed.2d 197 (1995). “[A] person in custody pursuant to the judgment of a State court,” Ortiz-Sandoval filed his petition under 28 U.S.C. § 2254. Consistent with 28 U.S.C. § 2242, the rules governing relief under section 2254 require Ortiz-Sandoval to name the “state officer having custody” of him as the respondent. Rule 2(a), 28 foil. U.S.C. § 2254. Typically, this person is “the warden of the facility in which the petitioner is incarcerated.” Stanley v. California Supreme Court, 21 F.3d 359, 360 (9th Cir.1994) (per curiam) (citing Brittingham v. United States, 982 F.2d 378, 379 (9th Cir.1992) (per curiam)). Failure to name the correct respondent destroys personal jurisdiction. Id. While the warden is the typical respondent, the rules following section 2254 do not specify the warden. According to the advisory committee’s note, the “state officer having custody” may be “either the warden of the institution in which the petitioner is incarcerated ... or the chief officer in charge of state penal institutions.” Rule 2(a), 28 foil. U.S.C. § 2254 advisory committee’s note. The note describes examples of proper respondents in given situations. Where" }, { "docid": "11806658", "title": "", "text": "the Michigan Supreme Court within 26 days. Thus, his application for collateral review was “properly filed” and “pending” for purposes of § 2244(d)(2) from March 13, 1997 until April 8, 1997. Respondent’s assertion to the contrary is without merit. Because the aforementioned days did not count toward the one-year statute of limitations, the limitations period did not begin to run until the Michigan Supreme Court denied Petitioner’s delayed application for leave to appeal on December 30, 1997. Petitioner therefore had until December 30, 1998 to seek federal habeas relief. His initial habeas petition was received by this Court on July 28, 1998 and filed on August 3, 1998. Petitioner thus sought federal habeas review within the applicable statutory period. III. Conclusion Based upon the foregoing analysis, the Court concludes that Petitioner filed his petition for a writ of habeas corpus within the one-year period established by 42 U.S.C. § 2244(d). His petition is therefore not subject to dismissal for failure to comply with the statute of limitations. Accordingly, IT IS ORDERED that Respondent’s motion to dismiss the petition for a writ of habeas corpus is DENIED. IT IS FURTHER ORDERED that Respondent shall file an answer addressing the merits of the amended petition for a writ of habeas corpus on or before April 10,1999. . Staff Attorney Cheryl Talcacs Bell provided quality research assistance. . At the time the habeas petition was initially filed, Petitioner was confined at the Brooks Correctional Facility in Muskegon Heights, Michigan. Respondent Joseph Abramajtys is the warden at that facility. . 28 U.S.C. § 2244(d) provides: (1) A 1-year period of limitation shall apply to an application for a writ of habeas corpus by a person in custody pursuant to the judgment of a State court. The limitation period shall run from the latest of— (A) the date on which the judgment became final by the conclusion of direct review or the expiration of the time for seeking such review; (B) the date on which the impediment to filing an application created by State action in violation of the Constitution or laws of the United" }, { "docid": "6431130", "title": "", "text": "PER CURIAM. We have an appeal by a state prisoner from the dismissal of his petition for federal habeas corpus. The ground of the dismissal was that the petition was an abuse of the writ — the prisoner’s third petition for habeas corpus challenging his conviction. The judge also fined the prisoner $50 under Fed. R.Civ.P. 11 for filing a frivolous pleading and, citing Support Systems International, Inc. v. Mack, 45 F.3d 185 (7th Cir.1995) (per cu-riam), directed the clerk of the district court to accept no further filings from the prisoner until he pays the fine. There is no doubt that the petition for habeas corpus was rightly dismissed. It does not satisfy the criteria for a second or successive petition for habeas corpus that are set forth in the new Antiterrorism and Effective Death Penalty Act, see 28 U.S.C. § 2244(b)(2), and that we have held to be applicable to petitions, such as Smith’s, that were pending on the date the Act was passed. Roldan v. United States, 96 F.3d 1013 (7th Cir.1996). It flunks the old criteria too, as the district judge held. See McCles-key v. Zant, 499 U.S. 467, 498, 111 S.Ct. 1454, 1472, 113 L.Ed.2d 517 (1991). The only questions worth discussing are the propriety of the fine and the appropriateness of a Mack order in this type of case. Although fines for frivolous collateral attacks on criminal convictions are rare, Rule 11, like the other Federal Rules of Civil Procedure, is applicable to habeas corpus cases to the extent consistent with the special rules governing those eases. Rule 11, Rules Governing Section 2254 Cases in the United States District Courts; Bleitner v. Welborn, 15 F.3d 652, 653 (7th Cir.1994). Nothing in these rules precludes the application of Fed. R.Civ.P. 11. It was applied to a petitioner for habeas corpus in Gelabert v. Lynaugh, 894 F.2d 746, 747 (5th Cir.1990) (per curiam), and the present case is one equally appropriate for invoking the rule. As explained by the district judge, Smith is not only a frequent filer of frivolous petitions but was expressly warned by" }, { "docid": "21992923", "title": "", "text": "Act of Feb. 5,1867, ch. 28, § 1,14 Stat. 385. That guarantee can be found in its current form at § 2241 of the Judicial Code, which provides that federal judges may giant the writ of habeas corpus on the application of a prisoner held “in custody in violation of the Constitution or laws or treaties of the United States.” 28 U.S.C. § 2241(c)(3). The prisoner must direct his petition to “the person who has custody over him.” § 2242; see also Wales v. Whitney, 114 U.S. 564, 574, 5 S.Ct. 1050, 29 L.Ed. 277 (1885); Braden v. 30th Judicial Circuit Court of Ky., 410 U.S. 484, 494-95, 93 S.Ct. 1123, 35 L.Ed.2d 443 (1973). Longstanding practice under this immediate custodian rule “confirms that in habeas challenges to present physical confinement ... the default rule is that the proper respondent is the warden of the facility where the prisoner is being held.” Rumsfeld v. Padilla, 542 U.S. 426, 435, 124. S.Ct. 2711, 159 L.Ed.2d 513 (2004). And under the statute’s jurisdiction of confinement rule, district courts may only grant habeas relief against custodians “within their respective jurisdictions.” § 2241(a); see also Braden, 410 U.S. at 495, 93 S.Ct. 1123 (“[T]he language of § 2241(a) requires nothing more than that the court issuing the writ have jurisdiction over the custodian”). An increase in the number of federal habeas petitions produced serious administrative problems and overburdened the few district courts in the jurisdictions with major federal prisons. See United States v. Hayman, 342 U.S. 205, 210-19, 72 S.Ct. 263, 96 L.Ed. 232 (1952). Congress responded in 1948 by enacting 28 U.S.C. § 2255. Pub. L. No. 80-773, ch. 646, 62 Stat. 967-68. A new remedial mechanism, § 2255 “replaced traditional habeas corpus for federal prisoners (at least in the first instance) with a process that allowed the prisoner to file a motion with the sentencing court on the ground that his sentence was, inter alia, imposed in violation of the Constitution or laws of the United States.” Boumediene v. Bush, 553 U.S. 723, 774, 128 S.Ct. 2229, 171 L.Ed.2d 41 (2008) (internal" }, { "docid": "22646552", "title": "", "text": "§ 1915. Rules Applicable to 28 U.S.C. § 1915(g) Section 1915(g), the “three strikes” provision of the informa pauperis statute, as amended by the Prison Litigation Reform Act of 1995, Pub.L. No. 104-134, 110 Stat. 1321 (Apr. 26,1996), provides: In no event shall a prisoner bring a civil action or appeal a judgment in a civil action or proceeding under this section if the prisoner has, on 3 or more prior occasions, while incarcerated or detained in any facility, brought an action or appeal in a court of the United States that was dismissed on the grounds that it is frivolous, malicious, or fails to state a claim upon which relief may be granted, unless the prisoner is under imminent danger of serious physical injury. 28 U.S.C. § 1915(g). “This provision requires so-called ‘frequent filer’ prisoners to prepay the entire filing fee before federal courts may consider their civil actions and appeals.” White v. Colorado, 157 F.3d 1226, 1232 (10th Cir.1998), cert. denied, — U.S. —, 119 S.Ct. 1150, 143 L.Ed.2d 216 (1999). It does not prevent prisoners with three strikes from filing civil actions; it merely prohibits them the privilege of in forma pauperis status. Id. at 1233. At issue here is whether Mr. Jennings has three or more qualifying dismissals under § 1915(g) and hence must pay up front for the privilege of filing or appealing these or any additional civil actions. In counting Mr. Jennings’ prior occasions (or strikes), the district court included the case before it (10th Cir. No. 98-8035), and the action against the Natrona County Detention Center Medical Facility (10th Cir. No. 98-8032). To reach strike three, the court added an earlier habeas corpus action, Jennings v. Wyoming Attorney General, No. 96-CV-181-D (D.Wyo. Feb. 28, 1997), which was dismissed without prejudice both for failure to exhaust state court remedies and for failure to state a claim. We first address the propriety of counting a habeas corpus action as a prior occasion under § 1915(g). We then address the issue of how to count strikes when a case or cases dismissed by the district court" }, { "docid": "20265236", "title": "", "text": "for Amendment to Complaint.” The Court treats the \"Motion for Amendment to Complaint” as plaintiff's Complaint, and because plaintiff has not numbered the pages, the Court adopts the page numbers designated by the electronic docket. . To the extent that petitioner challenges the execution of his sentence by demanding an award of good time credit, he must proceed under 28 U.S.C. § 2241 in the district where he is incarcerated. See Preiser v. Rodriguez, 411 U.S. 475, 93 S.Ct. 1827, 36 L.Ed.2d 439 (1973) (holding that habeas corpus is the exclusive remedy for challenges to the fact or duration of confinement, specifically discussing a claim for good time credits); Barfield v. U.S. Dep't of Justice, No. 04-0636, 2005 WL 551808, at *3 (D.D.C. Mar. 8, 2005) (noting parties' agreement \"that the sole federal remedy for challenging the loss of good-time credits and similar duration-of-confinemenl claims is by a petition for habeas corpus”); see also Rumsfeld v. Padilla, 542 U.S. 426, 435, 124 S.Ct. 2711, 159 L.Ed.2d 513 (2004) (\"[L]ongstanding practice confirms that in habeas challenges to present physical confinement ... the proper respondent is the warden of the facility where the prisoner is being held, not the Attorney General or some other remote supervisory official.\"). . The Court declines to address defendants' alternative bases for dismissal. . Defendants also argue that personal service of process has not been effected. See Defs.’ Mem. at 10, 13. Plaintiff is proceeding pro se and in forma pauperis, and the Clerk of Court and the United States Marshals Service are responsible for effecting service of process on his behalf. See 28 U.S.C. § 1915(d). Under these circumstances, the Court will deny defendants’ motion to dismiss under Fed. R.Civ.P. 12(b)(4) for insufficient process and Fed.R.Civ.P. 12(b)(5) for insufficient service of process." }, { "docid": "22066869", "title": "", "text": "JERRY E. SMITH, Circuit Judge: Anthony Ojo appeals the dismissal, as frivolous, of his petition for writ of habeas corpus. We affirm. I. Ojo’s journey through the immigration and criminal justice systems began in 1982 when he, a citizen of Nigeria, entered the United States on a student visa. Ten years later, in May 1992, he was convicted in New York federal court of importation of heroin and possession of heroin with intent to distribute. The court sentenced him to five years’ imprisonment and a three-year term of supervised release, and the conviction was affirmed. See United States v. Ojo, 992 F.2d 319 (2d Cir.1993). During the time Ojo was imprisoned on these charges, he filed three petitions for writ of habeas corpus under 28 U.S.C. § 2255, all of which were denied. In December 1995, Ojo was released from prison into the custody of the Immigration and Naturalization Service (“INS”), which immediately initiated deportation proceedings against him. In separate hearings in January and February 1996, the INS variously determined that he be held on $15,000 bond and that he be deported to Nigeria. Ojo’s appeals of these decisions are pending before the Board of Immigration Appeals. In December 1995, Ojo filed the instant suit pro se and in forma pauperis (“IFF’) in the court a quo, in which district Ojo was and is confined. The magistrate judge, recognizing that the gravamen of Ojo’s complaint was a collateral attack on the conviction that forms the basis for his deportation, generously construed the complaint as a habeas petition under 28 U.S.C. § 2241. The district court adopted the magistrate judge’s construction and, on April 29, 1996, dismissed the petition with prejudice for both fiivolousness and failure to exhaust administrative remedies. II. We must decide whether 28 U.S.C. § 2253, as recently amended by the Anti-Terrorism and Effective Death Penalty Act of 1996 (“AEDPA”), Pub.L. No. 104-132,110 Stat. 1214 (1996), requires that Ojo receive a certificate of appealability (“COA”) before we may hear his appeal. The new § 2253(c)(1) provides in relevant part: Unless a circuit justice or judge issues a certificate" }, { "docid": "19710515", "title": "", "text": "L.Ed.2d 724 (2003). The Supreme Court has determined that section 1226(e) does not deprive district courts of jurisdiction to hear such a challenge. Id. at 516-17,123 S.Ct. 1708. Neither party has contested this Court’s personal jurisdiction. Venue is proper because “a substantial part of the events ... giving rise to the claim occurred” within this district. 28 U.S.C. § 1391(e). A habeas petition should name as respondent “the person who has custody over [the petitioner].” 28 U.S.C. § 2242. In accord with the “immediate custodian rule, longstanding practice confirms that in habeas challenges to present physical confinement ... the default rule is that the proper respondent is the warden of the facility where the prisoner is being held, not the Attorney General or some other remote supervisory official.” Rumsfeld v. Padilla, 542 U.S. 426, 435, 124 S.Ct. 2711, 159 L.Ed.2d 513 (2004) (citations omitted). Although the Supreme Court in Padilla “left open the question whether the Attorney General is a proper respondent to a habeas petition filed by an alien detained pending deportation,” id. at 436 n. 8, 124 S.Ct. 2711, a “majority of district courts in this Circuit have applied the immediate custodian rule to habeas petitions filed by incarcerated aliens challenging their physical detentions prior to deportation,” Santana v. Muller, No. 12 Civ. 430(PAC), 2012 WL 951768, at *2 (S.D.N.Y. Mar. 12, 2012) (citations omitted). Therefore, Dominic Orsino, the warden of Orange County Jail, is likely the only proper respondent in this case, but in the exercise of caution, the Court will refrain from dismissing the other respondents until the July 2, 2013 hearing. II. Interpretation of Section 1226(c) Section 236 of the INA grants the Attorney General authority to detain any alien pending a decision on whether the alien is to be removed from the United States. Although this authority to detain is discretionary in certain circumstances, see 8 U.S.C. § 1226(a), detention is mandatory for aliens who have been convicted of certain enumerated offenses, including crimes involving a controlled substance, see 8 U.S.C. § 1226(c). Aliens detained pursuant to the discretionary detention provision may be afforded" } ]

[ { "docid": "1622570", "title": "", "text": "the court’s judgment.” The court also stated that the injunction was limited in scope because it would only “preclude Defendants from seeking to enforce Plaintiffs non-compete agreements in any court but” the federal district court in San Diego. Medtronic appeals from this order. Discussion We first consider jurisdiction to review this order. Ordinarily, temporary restraining orders, in contrast to preliminary injunctions, are not appealable; however, the fact that an order is simply denominated as a “temporary restraining order” does not end our inquiry. See Geneva Assurance Syndicate, Inc. v. Med. Emergency Serv. Assoc., 964 F.2d 599, 600 (7th Cir.1992) (noting that “the name which the judge gives the order is not determinative.”). It is the essence of the order, not its moniker, that determines our jurisdiction. The Federal Rules of Civil Procedure provide that a temporary restraining order: shall expire by its terms within such time after entry, not to exceed 10 days, as the court fixes, unless within the time so fixed the order, for good cause shown, is extended for a like period or unless the party against whom the order is directed consents that it may be extended for a longer period. Fed.R.Civ.P. 65. For purposes of jurisdiction, an order that does not possess the essential features of a temporary restraining order will be treated like a preliminary injunction. See Sampson v. Murray, 415 U.S. 61, 87-88, 94 S.Ct. 937, 39 L.Ed.2d 166 (1974) (“where an adversary hearing has been held, and the court’s basis for issuing the order strongly challenged, classification of [a] potentially unlimited order as a temporary restraining order seems particularly unjustified”). It can be safely said that “the court’s basis for issuing the order [was] strongly challenged.” Here, both parties had an opportunity to file extensive written materials and present oral argument. See San Francisco Real Estate Investors v. Real Estate Inv. Trust, 692 F.2d 814, 816 (1st Cir.1982) (describing these as “considerations that militate in favor of assuming jurisdiction.”). The duration of the order also compels us to treat it as a preliminary injunction, considering that the district court granted relief for" } ]

[ { "docid": "5436847", "title": "", "text": "a district court expressly extends a TRO issued after notice and a hearing beyond the statutory 20-day limit in Rule 65(b), the TRO does not cease to exist after the 20 days have expired, but instead becomes an enforceable preliminary injunction subject to appellate review. See, e.g., Sampson v. Murray, 415 U.S. 61, 87-88, 94 S.Ct. 937, 39 L.Ed.2d 166 (1974); Levine v. Comcoa, Ltd., 70 F.3d 1191 (11th Cir.1995), cert. denied, 519 U.S. 809, 117 S.Ct. 53, 136 L.Ed.2d 16 (1996); Pan Am. World Airways, Inc. v. Flight Engineers’ Int’l Ass’n, PAA Chapter, AFL-CIO, 306 F.2d 840, 843 (2d Cir.1962). In Sampson, which was decided only a few weeks before Granny Goose, a government employee sought a TRO against her dismissal from employment as a probationary employee. The district court granted the TRO. Later, after an adversary hearing at which the government declined to produce the discharging official as a witness. to testify as to the reasons for the dismissal, the district court ordered the TRO continued until the -witness appeared. The government appealed. In considering the issue of appellate jurisdiction over the TRO, the Supreme Court wrote: A district court, if it were able to shield its orders from appellate review merely by designating them as temporary restraining orders, rather than as preliminary injunctions, would have virtually unlimited authority over the parties in an injunctive proceeding. In this case, where an adversary heading has been held, and the court’s basis for issuing the order strongly challenged, classification of the potentially unlimited order as a temporary restraining order seems particularly unjustified. Therefore, we view the order at issue here as a preliminary injunction. Sampson, 415 U.S. at 86-88, 94 S.Ct. 937. The Court then went on to examine the merits of the case to determine whether a preliminary injunction should have been granted. Thus, under Sampson, a TRO issued after notice and a hearing, and extended past the time limits in Rule 65(b) becomes an appealable preliminary injunction. The Supreme Court’s decision in Sampson was presaged by the Second Circuit’s decision in Pan Am. In Pan Am., the district" }, { "docid": "7912645", "title": "", "text": "has expired within the time limits imposed by Rule 65(b). 415 U.S. at 444-45, 94 S.Ct. at 1126-27 (emphasis added) (footnote omitted). No case is cited to us in which the imposition of contempt for violation of an indefinitely-extended TRO has been upheld. Nevertheless, we hold today that “[f]or Grossman just to disregard the district court’s order based on his personal belief that it was invalid, is conduct that warrants a determination of contempt.” I do not concur in this, but I do not view it as a basis for the judgment. The opinion seems to say that, notwithstanding Granny Goose, it was not “reasonable” for Grossman to assume that the TRO had expired as Rule 65(b) prescribes. This holding is based upon Sampson v. Murray, 415 U.S. 61, 94 S.Ct. 937, 39 L.Ed.2d 166 (1974). In Sampson, a government employee sought a temporary injunction against her dismissal from employment as a probationary employee. The district court granted a temporary restraining order. Later, after an adversary hearing at which the government declined to produce the discharging official as a witness to testify as to the reasons for the dismissal, the district court ordered the temporary restraint continued until the witness appeared. In considering the issue of appellate jurisdiction over the order the Supreme Court wrote: A district court, if it were able to shield its orders from appellate review merely by designating them as temporary restraining orders, rather than as preliminary injunctions would have virtually unlimited authority over the parties in an injunctive proceeding. In this case, where an adversary hearing has been held, and the court’s basis for issuing the order strongly challenged, classification of the potentially unlimited order as a temporary restraining order seems particularly unjustified. Therefore, we view the order at issue here as a preliminary injunction. Id. at 87-88, 94 S.Ct. at 951-52. An order extending a TRO beyond the statutory twenty-day limit, therefore, is treated as a preliminary injunction. One might well conclude that the conversion of an indefinitely-extended TRO into a preliminary injunction would be for purposes of appeal only, conferring jurisdiction on the" }, { "docid": "22210545", "title": "", "text": "appeal from the TRO entered in this case, whether denominated a TRO or a preliminary injunction, is not properly before the court. It is well settled in this circuit that a TRO is not ordinarily appealable. Fernandez-Roque v. Smith, 671 F.2d 426, 429 (11th Cir.1982); Nelson v. Rosenthal, 539 F.2d 1034 (5th Cir.1976); Chandler v. Garrison, 394 F.2d 828 (5th Cir.1967). The mother argues that, because the TRO was in reality a short-lived mandatory injunction commanding her to perform an affirmative act, it is appealable pursuant to 28 U.S.C. § 1292(a)(1). We agree that the label placed on an order such as the one entered in this case is not dispositive of its nature and appealability under section 1292(a)(1). “A district court, if it were able to shield its orders from appellate review merely by designating them as temporary restraining orders, rather than as preliminary injunctions, would have virtually unlimited authority over the parties in an injunctive proceeding.” Sampson v. Murray, 415 U.S. 61, 86-87, 94 S.Ct. 937, 951, 39 L.Ed.2d 166 (1974). When determining whether to consider an order a TRO or a preliminary injunction, however, courts typically look to such factors as the duration of the order, whether it was issued after notice and a hearing, and the showing made to obtain the order. See C. Wright, Law of Federal Courts 708 (4th ed. 1983). The lengthier the duration of the order, and the more stringent the procedural safeguards employed in the district court, the more likely a TRO will be considered a preliminary injunction. See e.g., Dilworth v. Riner, 343 F.2d 226, 229 (5th Cir.1965). An examination of those considerations in this case strongly suggests that the order entered and labeled a TRO should not be considered a permanent injunction for purposes of this appeal. Militating in favor of the appealability of the TRO entered in this case, however, is “a slowly emerging doctrine that temporary restraining order rulings may be appealable as interlocutory injunction orders if the appellant can disprove the general presumption that there is no irreparable harm.” 16 C. Wright, A. Miller, E. Cooper" }, { "docid": "13769458", "title": "", "text": "effect to and including April 12, 2005, or until such time as this temporary restraining order is dissolved or vacated, by this court or a reviewing court. This temporary restraining order shall be binding upon the parties to this action, their officers, agents, servants, employees, and attorneys, and upon those persons in active concert or participation with them who receive actual notice of this order. This temporary restraining order shall issue without the posting of any bond, as the court finds insufficient evidence that either Qwest Corporation or Qwest Communications Corporation will incur any costs and damages incurred if they are “found to have been wrongfully enjoined or restrained” to continue their services to McLeodUSA and to make full payments for services they obtain from McLeodUSA. See FED. R. CIV. P. 65(c) (purpose of bond). IT IS SO ORDERED,. . In Branstad, this court also discussed in some detail the differences between a temporary restraining order and a preliminary injunction. See Branstad, 118 F.Supp.2d at 935-937. Suffice it to say that, in that case, the court found the following factors should be considered to distinguish a TRO from a preliminary injunction: (1) whether the hearing was ex parte or adversarial; (2) whether the adversarial hearing allowed the basis for the relief requested to be strongly challenged; (3) whether the order expired, by its own terms, within the ten days provided by Rule 65(b); and (4) the \"substance” of the order. Id. In this case, the court held an \"adversarial” rather than an ex parte conference with the parties, but it did not hold the sort of \"adversary hearing,” including presentation of evidence beyond the affidavits and exhibits filed with McLeodUSA’s motion and by Qwest in response, that allowed the basis for the requested order to be \"strongly challenged,” such that it would be \" 'particularly unjustified' ” to classify the resulting order as a temporary restraining order. See id. at 936 (quoting Sampson v. Murray, 415 U.S. 61, 87, 94 S.Ct. 937, 39 L.Ed.2d 166 (1974)). Moreover, the court has every intention that this order for injunctive relief will expire" }, { "docid": "7912646", "title": "", "text": "discharging official as a witness to testify as to the reasons for the dismissal, the district court ordered the temporary restraint continued until the witness appeared. In considering the issue of appellate jurisdiction over the order the Supreme Court wrote: A district court, if it were able to shield its orders from appellate review merely by designating them as temporary restraining orders, rather than as preliminary injunctions would have virtually unlimited authority over the parties in an injunctive proceeding. In this case, where an adversary hearing has been held, and the court’s basis for issuing the order strongly challenged, classification of the potentially unlimited order as a temporary restraining order seems particularly unjustified. Therefore, we view the order at issue here as a preliminary injunction. Id. at 87-88, 94 S.Ct. at 951-52. An order extending a TRO beyond the statutory twenty-day limit, therefore, is treated as a preliminary injunction. One might well conclude that the conversion of an indefinitely-extended TRO into a preliminary injunction would be for purposes of appeal only, conferring jurisdiction on the court of appeals for the sole purpose of voiding the invalidly extended TRO. This was exactly the approach of the Court of Appeals for the District of Columbia Circuit in National Mediation Bd. v. Air Line Pilots Association, Int., 323 F.2d 305 (D.C.Cir.1963). In that pre-Sampson case, the Court of Appeals held that an order extending a TRO beyond the twenty days allowed by Rule 65(b) is tantamount to the grant of a preliminary injunction, thus conferring jurisdiction on the court of appeals. The court further held, however, that since the restraining order was not supported by findings of fact and conclusions of law as required by Rule 52(a), it was not a valid preliminary injunction and remanded the case to the district court with directions to dissolve the void order. Id. at 305-06. This result was later endorsed by Justice Marshall in his dissent in Sampson. In Sampson, the Supreme Court went beyond the mere exercise of appellate jurisdiction and considered the merits of the application for a preliminary injunction. This appeared to be" }, { "docid": "5436846", "title": "", "text": "temporary restraining order was issued. There being no order to violate, the District Court erred in holding the Union in contempt .... Id. at 444-45 (footnotes omitted). Defendants’ reliance on Granny Goose is misplaced as they ignore a key factual, and legally significant, distinction between that case and this case. In Granny Goose, the TRO at issue was silent on its face as to its intended duration and the district court never ordered that it be extended beyond the time limits in Rule 65(b). Here, in contrast, the Court expressly extended the TRO beyond the 20-day time period in Rule 65(b). The Court stated clearly and unequivocally in the TRO that it was to remain in effect until resolution of the plaintiffs’ motion for preliminary injunction. The Court reiterated this extension at the April 29, 1999 status conference. This is not a case like Granny Goose where the party being enjoined was left to guess at the intended duration of the TRO. The Supreme Court and the appellate courts have held that where, as here, a district court expressly extends a TRO issued after notice and a hearing beyond the statutory 20-day limit in Rule 65(b), the TRO does not cease to exist after the 20 days have expired, but instead becomes an enforceable preliminary injunction subject to appellate review. See, e.g., Sampson v. Murray, 415 U.S. 61, 87-88, 94 S.Ct. 937, 39 L.Ed.2d 166 (1974); Levine v. Comcoa, Ltd., 70 F.3d 1191 (11th Cir.1995), cert. denied, 519 U.S. 809, 117 S.Ct. 53, 136 L.Ed.2d 16 (1996); Pan Am. World Airways, Inc. v. Flight Engineers’ Int’l Ass’n, PAA Chapter, AFL-CIO, 306 F.2d 840, 843 (2d Cir.1962). In Sampson, which was decided only a few weeks before Granny Goose, a government employee sought a TRO against her dismissal from employment as a probationary employee. The district court granted the TRO. Later, after an adversary hearing at which the government declined to produce the discharging official as a witness. to testify as to the reasons for the dismissal, the district court ordered the TRO continued until the -witness appeared. The government appealed." }, { "docid": "13769459", "title": "", "text": "court found the following factors should be considered to distinguish a TRO from a preliminary injunction: (1) whether the hearing was ex parte or adversarial; (2) whether the adversarial hearing allowed the basis for the relief requested to be strongly challenged; (3) whether the order expired, by its own terms, within the ten days provided by Rule 65(b); and (4) the \"substance” of the order. Id. In this case, the court held an \"adversarial” rather than an ex parte conference with the parties, but it did not hold the sort of \"adversary hearing,” including presentation of evidence beyond the affidavits and exhibits filed with McLeodUSA’s motion and by Qwest in response, that allowed the basis for the requested order to be \"strongly challenged,” such that it would be \" 'particularly unjustified' ” to classify the resulting order as a temporary restraining order. See id. at 936 (quoting Sampson v. Murray, 415 U.S. 61, 87, 94 S.Ct. 937, 39 L.Ed.2d 166 (1974)). Moreover, the court has every intention that this order for injunctive relief will expire in ten days, unless within that time, good cause is shown for extending it for a like period. Id. (citing Fed. R. Civ. P. 65(b)). Finally, the \"substance” of this order is intended to be a temporary restraining order, rather than a preliminary injunction, not least because of the expedited nature of the proceedings and ruling and the limited nature of the relief that will be granted. Id. (citing Baker Elec. Coop. v. Chaske, 28 F.3d 1466, 1472 (8th Cir.1994)). Therefore, this order is a temporary restraining order, not a preliminary injunction. Id." }, { "docid": "16401674", "title": "", "text": "order does not affect our ability to entertain jurisdiction under 28 U.S.C. § 1292(a)(1).” Nordin, 897 F.2d at 343. Rather, the court concluded that “[i]f the order is in substance a preliminary injunction rather than a temporary restraining order, it is appealable under § 1292(a)(1).” Id. As to “substance” of the order in Nor-din, “[t]he April 18 temporary restraining order — which has no expiration date on its face and which exceeded the ten-day limit of Fed.R.Civ.P. 65(b) as of the date of the notice of appeal — must be treated as a preliminary injunction and therefore is appealable.” Id. Also, in Quinn v. Missouri, 839 F.2d 425 (8th Cir.1988), the court expressly stated that “[t]he law is ... that where a TRO exceeds the ten-day limit provided in Fed.R.Civ.P. 65(b), and has the practical effect of a preliminary injunction, the appellate court may treat it as a preliminary injunction and exercise jurisdiction under 28 U.S.C. § 1292(a)(1).” Quinn, 839 F.2d at 426. These decisions lead to the conclusion that any injunctive relief exceeding the ten-day limit for a TRO in Rule 65(b) that is issued after notice to the adverse party and an adversarial hearing should be considered a preliminary injunction. In the present case, the USDA was served with the Branstads’ complaint and motion and the USDA appeared through counsel for an adversarial proceeding on the Branstads’ motion. Thus, any immediate injunctive relief the court may issue will not be “without written or oral notice to the adverse party or that party’s attorney,” so that it does not necessarily have to be a TRO. Compare Fed.R.Civ.P. 65(b) (providing for the issuance of a TRO without notice to the adverse party). Moreover, the court heard oral arguments and received evidence beyond the allegations in the Branstads’ complaint and motion in contested proceedings. See Sampson, 415 U.S. at 87, 94 S.Ct. 987 (“[Wjhere an adversary healing has been held, and the court’s basis for issuing the order strongly challenged, classification of the potentially unlimited order as a temporary restraining order seems particularly unjustified.”). Finally, and perhaps most importantly in this" }, { "docid": "7912632", "title": "", "text": "transferred the retainer funds. The district court entered an order holding Grossman in contempt of court for his transferring of the funds into his own account. He now appeals this ruling. Rule 65 of the Federal Rules of Civil Procedure says that a TRO can last only 10 days, unless extended, and cannot be extended beyond 20 days without the consent of the restrained party. Grossman says that he never consented to an extension; and for the sake of our discussion, we accept that he did not consent. The Supreme Court has said a TRO that is continued beyond the time permissible under Rule 65 should be treated as a preliminary injunction. See Sampson v. Murray, 415 U.S. 61, 87, 94 S.Ct. 937, 951, 39 L.Ed.2d 166 (1974) (stating “[wjhere an adversary hearing has been held, and the court’s basis for issuing the order strongly challenged, classification of the potentially unlimited order as a temporary restraining order seems particularly unjustified”). This treatment is especially appropriate where, as in this case, there has been notice to the parties, a full hearing on a preliminary injunction, and then a stated and clear decision from the bench to extend the terms of the restraining order indefinitely, that is, until the court notified the parties otherwise. Very likely, Grossman’s client, Comeoa along with its agents and attorneys, was under a preliminary injunction once the judge spoke at the end of the hearing; but we need not go that far. If the TRO had not become a preliminary injunction before, it became a preliminary injunction when the TRO, as orally extended by the district court, went beyond the time permissible under Rule 65. Thus, the proper course of conduct for Grossman was to treat the TRO as an erroneously granted preliminary injunction and to appeal. See Clements Wire & Mfg. Co. v. NLRB, 589 F.2d 894, 896 (5th Cir.1979). We believe the instances when lawyers can be told by the district court in no uncertain terms not to do “X” and, yet, the lawyer can go on to do “X” with impunity are (and ought" }, { "docid": "7912637", "title": "", "text": "day constituted a for-cause extension of the initial 10 day period. . We accept that, where there has been no notice to the parties and no hearing on the various factors involved in considering a preliminary injunction, a TRO continued past the Rule 65 limit falls of its own weight. See Granny Goose v. Brotherhood of Teamsters & Auto Truck Drivers, 415 U.S. 423, 94 S.Ct. 1113, 39 L.Ed.2d 435 (1974); Hudson v. Barr, 3 F.3d 970 (10th Cir. 1993). In Granny Goose, the district court \"did not indicate that it was undertaking a hearing on a preliminary injunction.” Granny Goose, 415 U.S. at 441, 94 S.Ct. at 1125. And, neither party made an attempt to present its position on whether a preliminary injunction should issue. Id. .That a hearing on a preliminary injunction had been held and that appellate review was, therefore, available under Sampson, makes this case materially different from Granny Goose. Even in Pan American World Airways, Inc. v. Flight Engineers’ Int’l Assn., 306 F.2d 840, 842 (2d Cir.1962), the Second Circuit treated a TRO extended following the commencement of a hearing on the merits as a preliminary injunction for purposes of appeal. No good reason exists to limit this rule to one of appellate jurisdiction only: a preliminary injunction is a preliminary injunction. Two concerns about TROs are reflected in the case law and in Rule 65. First, restrained parties often have no opportunity for a hearing and may not know precisely what conduct is prohibited. Second, a restrained party may not obtain appellate review of a TRO. Our holding respects both these concerns; Grossman and Grossman’s client had the opportunity to contest the preliminary injunction (and had precise notice of the enjoined conduct) and also could have obtained appellate review of the injunction. . Although we decide this case under Rule 65, we do not decide that all of the district courts' powers to give binding orders to a lawyer and all of a lawyer’s legal duties to obey the orders of a court with subject-matter jurisdiction over the controversy in which the lawyer appears" }, { "docid": "513494", "title": "", "text": "to act for the Local, the law firms filed two motions: first for a remand on the ground that Local 1001 represents only municipal employees and hence is outside the scope of the LMRDA even though the International is a “labor organization” covered by that statute; and second (in the event the first should be denied) for a temporary restraining order that would block the Trustee from exercising any authority over the Local. The district judge denied both motions but certified his decision on the first for interlocutory appeal under 28 U.S.C. § 1292(b). The judge stated that the subject ordinarily would not meet the criteria of that statute but that, as the law firms are entitled to appeal from the order denying their request for a TRO, this court should have the whole dispute before it. The law firms then filed a petition for leave to appeal under § 1292(b) plus an appeal from the denial of the request for a TRO. They concede in this court that denial of a TRO is not appealable — as indeed it is not,.for a TRO is not an “interlocutory injunction” within the meaning of 28 U.S.C. § 1292(a)(1). See Sampson v. Murray, 415 U.S. 61, 86 & n. 58, 94 S.Ct. 937, 39 L.Ed.2d 166 (1974). Instead they argue that the district court’s order is appealable because it has the “effect” of denying an interlocutory injunction. See Gulfstream Aerospace Corp. v. Mayacamas Corp., 485 U.S. 271, 287-88, 108 S.Ct. 1133, 99 L.Ed.2d 296 (1988); Carson v. American Brands, Inc., 450 U.S. 79, 101 S.Ct. 993, 67 L.Ed.2d 59 (1981). But the only reason it might have such an effect would be their own strategy; rather than asking for a preliminary injunction, the law firms immediately appealed. That maneuver cannot be allowed to work. Jumping the gun does not turn an otherwise non-final action into an appealable order. Only when resort to the regular processes of litigation is unavailing, and the judge is unwilling to make a prompt decision even though delay erodes or obliterates the rights in question, does inaction have" }, { "docid": "5436848", "title": "", "text": "In considering the issue of appellate jurisdiction over the TRO, the Supreme Court wrote: A district court, if it were able to shield its orders from appellate review merely by designating them as temporary restraining orders, rather than as preliminary injunctions, would have virtually unlimited authority over the parties in an injunctive proceeding. In this case, where an adversary heading has been held, and the court’s basis for issuing the order strongly challenged, classification of the potentially unlimited order as a temporary restraining order seems particularly unjustified. Therefore, we view the order at issue here as a preliminary injunction. Sampson, 415 U.S. at 86-88, 94 S.Ct. 937. The Court then went on to examine the merits of the case to determine whether a preliminary injunction should have been granted. Thus, under Sampson, a TRO issued after notice and a hearing, and extended past the time limits in Rule 65(b) becomes an appealable preliminary injunction. The Supreme Court’s decision in Sampson was presaged by the Second Circuit’s decision in Pan Am. In Pan Am., the district court issued a TRO enjoining the defendant union from striking. The district court continued the TRO from time to time past the 20-day limitation period in Rule 65(b). The union appealed. In considering the issue of the appeala-bility of the TRO, the Second Circuit stated: There is no statutory authority for the indefinite, successive extensions of temporary restraining orders ... Appellee argues that the time limits set forth in Rule 65(b) ... are applicable only to situations where the temporary restraining order was issued ex parte ... The fact that notice is given and a hearing held cannot serve to extend indefinitely beyond the period limited by the Rule the time during which a temporary restraining order remains effective. The statute contemplates that notice and a hearing shall result in an appropriate adjudication, i.e. the issuance or denial of a preliminary injunction, not an extension of the temporary stay. The purpose of a temporary restraining order is to preserve an existing situation in statu quo until the court has an opportunity to pass upon the" }, { "docid": "16401671", "title": "", "text": "be granted without written or oral notice to the adverse party or that party’s attorney,” but “only if’ certain requirements are met. See Fed. R.Cxv.P. 65(b) (emphasis added). Thus, a TRO may be, but does not have to be, issued ex parte, but a preliminary injunction cannot be issued without notice to the adverse party. However, although a preliminary injunction cannot be issued without notice, the fact that notice is provided does not necessarily mean that the relief granted will be a preliminary injunction rather than a TRO. While Rule 65(a) expressly requires “notice” before a preliminary injunction is issued, it does not expressly require a hearing before a preliminary injunction can be issued. Fed.R.CivP. 65(a). Nevertheless, Rule 65(a)(2) clearly contemplates that a hearing will precede the issuance of a preliminary injunction. See Fed.R.Civ.P. 65(a)(2) (providing that “the hearing of an application for a preliminary injunction” may be consolidated with trial on the merits). A TRO, which may be granted ex parte, plainly does not require an adversarial hearing. Fed.R.CxvR. 65(b). Moreover, the Supreme Court has suggested that, “where an adversary hearing has been held, and the court’s basis for issuing the order strongly challenged, classification of the potentially unlimited order as a temporary restraining order seems particularly unjustified.” Sampson v. Murray, 415 U.S. 61, 87, 94 S.Ct. 937, 39 L.Ed.2d 166 (1974) (also noting that, “[a] district court, if it were able to shield its orders from appellate review merely by designating them as temporary restraining orders, rather than as preliminary injunctions, would have virtually unlimited authority over the parties in an injunctive proceeding.”). A more clearly dispositive distinction between the two kinds of preliminary injunctive relief is that “[e]very temporary restraining order granted without notice ... shall expire by its terms within such time after entry, not to exceed 10 days, as the court fixes, unless within the time so fixed the order, for good cause shown, is extended for a like period or unless the party against whom the order is directed consents that it may be extended for a longer period.” Fed.R.CivP. 65(b). This language indicates" }, { "docid": "5436851", "title": "", "text": "the purpose of this provision. We hold, therefore, that the continuation of the temporary restraining order beyond the period of statutory authorization, having, as it does, the same practical effect as the issuance of a preliminary injunction, is appealable within the meaning and intent of 28 U.S.C. § 1292(a)(1). Pan Am., 306 F.2d at 842-43 (citations and footnotes omitted). As in Sampson, the Second Circuit then went on to examine the merits of the injunction that was issued by the district court. The distinction between the situation present in Sampson (and this case) and the situation present in Granny Goose was also presaged by the Second Circuit in Pan Am. In footnote 4 of Pan Am., the Second Circuit distinguished its case from certain other cases where appellate courts had refused to review TROs. Id. at 843 n. 4. The Second Circuit explained that in those other cases, the courts found that the TROs at issue had expired by virtue of the Rule 65(b) limitations and, therefore, because there was no existing order to review, the appeals were dismissed as moot. In contrast, in Pan Am., the district court had extended the TRO beyond the 20-day period, thus converting the TRO into an appealable preliminary injunction. Thus, under Sampson and Pan Am., where a district court issues a TRO following notice and a hearing, and then extends the TRO beyond the 20-day limitation in Rule 65(b), the TRO does not cease to exist after 20 days, but instead becomes an appealable preliminary injunction. Defendants argue that the conversion of an indefinitely extended TRO into a preliminary injunction under Sampson and Pan Am. is only for purposes of appeal, conferring jurisdiction on the appellate court for the sole purpose of voiding the invalidly extended TRO. This argument is inconsistent, however, with Sampson and Pan Am. In those cases, after holding that the extended TRO converted into a preliminary injunction and was therefore appeal- able, the Courts went on to address the substantive merits of the preliminary injunctions at issue. By reviewing the merits, the Courts implicitly held that the TRO turned" }, { "docid": "22210544", "title": "", "text": "been filed, which the mother argues had the effect of divesting the district court of further jurisdiction to enter such an order in the case. The mother also argues that where, as here, a prenotice of appeal preliminary injunction has been appealed, the appeal should ■ be deemed taken also from any post-notice permanent injunction that should not have been entered. In response to the father’s third argument above, the mother argues that her appeal from .the declaratory judgment is not moot even if the permanent injunction is not properly before this court because if we reverse the declaratory judgment, she can subsequently move to set aside the permanent injunction pursuant to Rule 60(b)(5) of the Federal Rules of Civil Procedure. That rule provides, inter alia, that “the court may relieve a party ... from a final judgment, order or proceeding ... [because] a prior judgment upon which it is based has been reversed or otherwise vacated, or it is no longer equitable that the judgment should have prospective application.” We conclude that the mother’s appeal from the TRO entered in this case, whether denominated a TRO or a preliminary injunction, is not properly before the court. It is well settled in this circuit that a TRO is not ordinarily appealable. Fernandez-Roque v. Smith, 671 F.2d 426, 429 (11th Cir.1982); Nelson v. Rosenthal, 539 F.2d 1034 (5th Cir.1976); Chandler v. Garrison, 394 F.2d 828 (5th Cir.1967). The mother argues that, because the TRO was in reality a short-lived mandatory injunction commanding her to perform an affirmative act, it is appealable pursuant to 28 U.S.C. § 1292(a)(1). We agree that the label placed on an order such as the one entered in this case is not dispositive of its nature and appealability under section 1292(a)(1). “A district court, if it were able to shield its orders from appellate review merely by designating them as temporary restraining orders, rather than as preliminary injunctions, would have virtually unlimited authority over the parties in an injunctive proceeding.” Sampson v. Murray, 415 U.S. 61, 86-87, 94 S.Ct. 937, 951, 39 L.Ed.2d 166 (1974). When determining" }, { "docid": "11896158", "title": "", "text": "804 (9th Cir. 2002). We may nonetheless review an order styled as a TRO if it “possesses the qualities of a preliminary injunction.” Serv. Emps. Int’l Union v. Nat’l Union of Healthcare Workers, 598 F.3d 1061, 1067 (9th Cir. 2010). This rule has ordinarily required the would-be appellant to show that the TRO was strongly challenged in adversarial proceedings before the district court and that it has or will remain in force for longer than the fourteen-day period identified in Federal Rule of Civil Procedure 65(b). See, e.g., id. We are satisfied that in the extraordinary circumstances of this case, the district court’s order possesses the qualities of an appealable preliminary injunction. The parties vigorously contested the legal basis for the TRO in written briefs and oral arguments before the district court. The district court’s order has no expiration date, and no hearing has been scheduled. Although the district court has recently scheduled briefing on the States’ motion for a preliminary injunction, it is apparent from the district court’s scheduling order that the TRO will remain in effect for longer than fourteen days. In light of the unusual circumstances of this case, in which the Government has argued that emergency relief is necessary to support its efforts to prevent terrorism, we believe that this period is long enough that the TRO should be considered to have the qualities of a reviewable preliminary injunction. III. Standing The Government argues that the district court lacked subject matter jurisdiction because the States have no standing to sue. We have an independent obligation to ascertain our jurisdiction, Arbaugh v. Y&H Corp., 546 U.S. 500, 514, 126 S.Ct. 1235, 163 L.Ed.2d 1097 (2006), and we consider the Government’s argument de novo, see, e.g., Hajro v. U.S. Citizenship & Immigration Servs., 811 F.3d 1086, 1098 (9th Cir. 2016). We conclude that the States have made a suffi cient showing to support standing, at least at this preliminary stage of the proceedings. Article III, section 2 of the Constitution allows federal courts to consider only “Cases” and “Controversies.” Massachusetts v. EPA, 549 U.S. 497, 516, 127 S.Ct." }, { "docid": "7912644", "title": "", "text": "property right involved thereby satisfying due process. Granny Goose also emphasizes the safeguards built into Rule 65 to prevent the serious penalties imposed when one is found to be in contempt for violating court injunctions: [O]ne basic principle built into Rule 65 is that those against whom an injunction is issued should receive fair and precisely drawn notice of what the injunction actually prohibits. * sfc sH * * * It would be inconsistent with this basic principle to countenance procedures whereby parties against whom an injunction is directed are left to guess about its intended duration. Rule 65(b) provides that temporary restraining orders expire by their own terms within 10 days of their issuance. Where a court intends to supplant such an order with a preliminary injunction of unlimited duration pending a final decision on the merits or further order of the court, it should issue an order clearly saying so. And where it has not done so, a party against whom a temporary restraining order has issued may reasonably assume that the order has expired within the time limits imposed by Rule 65(b). 415 U.S. at 444-45, 94 S.Ct. at 1126-27 (emphasis added) (footnote omitted). No case is cited to us in which the imposition of contempt for violation of an indefinitely-extended TRO has been upheld. Nevertheless, we hold today that “[f]or Grossman just to disregard the district court’s order based on his personal belief that it was invalid, is conduct that warrants a determination of contempt.” I do not concur in this, but I do not view it as a basis for the judgment. The opinion seems to say that, notwithstanding Granny Goose, it was not “reasonable” for Grossman to assume that the TRO had expired as Rule 65(b) prescribes. This holding is based upon Sampson v. Murray, 415 U.S. 61, 94 S.Ct. 937, 39 L.Ed.2d 166 (1974). In Sampson, a government employee sought a temporary injunction against her dismissal from employment as a probationary employee. The district court granted a temporary restraining order. Later, after an adversary hearing at which the government declined to produce the" }, { "docid": "16401675", "title": "", "text": "ten-day limit for a TRO in Rule 65(b) that is issued after notice to the adverse party and an adversarial hearing should be considered a preliminary injunction. In the present case, the USDA was served with the Branstads’ complaint and motion and the USDA appeared through counsel for an adversarial proceeding on the Branstads’ motion. Thus, any immediate injunctive relief the court may issue will not be “without written or oral notice to the adverse party or that party’s attorney,” so that it does not necessarily have to be a TRO. Compare Fed.R.Civ.P. 65(b) (providing for the issuance of a TRO without notice to the adverse party). Moreover, the court heard oral arguments and received evidence beyond the allegations in the Branstads’ complaint and motion in contested proceedings. See Sampson, 415 U.S. at 87, 94 S.Ct. 987 (“[Wjhere an adversary healing has been held, and the court’s basis for issuing the order strongly challenged, classification of the potentially unlimited order as a temporary restraining order seems particularly unjustified.”). Finally, and perhaps most importantly in this case, the parties here have agreed that the relief this court will issue on the Branstads’ motion, if any, will be a preliminary injunction, which may extend for a period of more than ten days, and which may be subject to modification upon either party’s motion and request for consideration of additional evidence. Therefore, any immediate relief the court may issue on the Branstads’ September 18, 2000, motion will be in the form of a preliminary injunction, may last for more than ten days, and will be immediately appealable. C. Standards For Issuance Of A Preliminary Injunction As noted above, the standards for relief pending judicial review under 5 U.S.C. § 705 are the same as those for issuance of a preliminary injunction. See, e.g., Cronin, 919 F.2d at 446; Ohio v. NRC, 812 F.2d at 290; Kansas ex rel. Graves, 86 F.Supp.2d at 1100; Charter Township of Van Buren, 965 F.Supp. at 963. “The burden of establishing the propriety of a preliminary injunction is on the movant.” Baker Elec. Co-op., Inc., 28 F.3d at" }, { "docid": "16401672", "title": "", "text": "has suggested that, “where an adversary hearing has been held, and the court’s basis for issuing the order strongly challenged, classification of the potentially unlimited order as a temporary restraining order seems particularly unjustified.” Sampson v. Murray, 415 U.S. 61, 87, 94 S.Ct. 937, 39 L.Ed.2d 166 (1974) (also noting that, “[a] district court, if it were able to shield its orders from appellate review merely by designating them as temporary restraining orders, rather than as preliminary injunctions, would have virtually unlimited authority over the parties in an injunctive proceeding.”). A more clearly dispositive distinction between the two kinds of preliminary injunctive relief is that “[e]very temporary restraining order granted without notice ... shall expire by its terms within such time after entry, not to exceed 10 days, as the court fixes, unless within the time so fixed the order, for good cause shown, is extended for a like period or unless the party against whom the order is directed consents that it may be extended for a longer period.” Fed.R.CivP. 65(b). This language indicates that a TRO is distinguished from a preliminary injunction on the basis of the limited duration of a TRO. It is also clear that an order granting a preliminary injunction is immediately appealable, while an order granting a TRO is not. See Baker Elec. Co-op., Inc. v. Chaske, 28 F.3d 1466, 1472 (8th Cir.1994). The Eighth Circuit Court of Appeals looks to the “substance” of the order, rather than its title, to determine whether the order is a TRO or a preliminary injunction, and hence whether it is or is not appealable. For example, in Baker Electric Cooperative, the Eighth Circuit Court of Appeals held that an injunction that was in force for more than ten days, although labeled a “TRO” — and initially issued ex parte, but later modified after an adversarial proceeding — was necessarily a preliminary injunction and therefore immediately appealable. Id. Similarly, in Nordin v. Nutri/System, Inc., 897 F.2d 339 (8th Cir.1990), the court found that “[t]he fact that the April 18 order enjoining arbitration was titled as a temporary restraining" }, { "docid": "7912631", "title": "", "text": "said the order included the asset freeze. The district court then asked if either party had anything further or any questions. Grossman replied, “No, sir.” On 6 June 1994, Grossman called the district court to find out if an order had been issued. At first, Grossman was told a preliminary injunction had been issued; but later the district court’s assistant said a preliminary injunction had not been issued. Grossman considered the court’s order to have expired. And he, on 6 June, transferred from Comcoa’s trust account about $92,000 of the retainer funds into his law firm’s operating account. About this same time, he filed for Comcoa an Emergency Motion for Release of Assets, based on the expiration of the TRO. Also on 7 June, the district court entered an Order of Preliminary Injunction nunc pro tunc to June 3, 1994; and, the district court denied Defendants’ Emergency Motion. In August 1994, the Division filed a Motion for an Order to Show Cause to hold Gross-man in contempt for violating the district court orders when he transferred the retainer funds. The district court entered an order holding Grossman in contempt of court for his transferring of the funds into his own account. He now appeals this ruling. Rule 65 of the Federal Rules of Civil Procedure says that a TRO can last only 10 days, unless extended, and cannot be extended beyond 20 days without the consent of the restrained party. Grossman says that he never consented to an extension; and for the sake of our discussion, we accept that he did not consent. The Supreme Court has said a TRO that is continued beyond the time permissible under Rule 65 should be treated as a preliminary injunction. See Sampson v. Murray, 415 U.S. 61, 87, 94 S.Ct. 937, 951, 39 L.Ed.2d 166 (1974) (stating “[wjhere an adversary hearing has been held, and the court’s basis for issuing the order strongly challenged, classification of the potentially unlimited order as a temporary restraining order seems particularly unjustified”). This treatment is especially appropriate where, as in this case, there has been notice to" } ]

[ { "docid": "22782298", "title": "", "text": "stock was placed in the name of the bank was one not in the course of the business of banking for which the bank was organized. 2.- The transfer of the stock in question to the bank being unauthorized by law, does the fact that, under some circumstances, the bank might have legally acquired stock in the corporation estop the bank from setting up the illegality of the transaction ? Whatever divergence of opinion may arise on this question from conflicting adjudications in some of the state courts, in this court it is settled in favor of the right of the corporation to plead its want of power, that is to say, to assert the nullity of an act which is an ultra vires act. The cases of Thomas v. Railroad Company, 101 U. S. 71; Pennsylvania Railroad v. St. Louis, Alton &c. Railroad, 118 U. S. 290; Oregon Railway & Navigation Co. v. Oregonian Railway Co., 130 U. S. 1; Pittsburgh, Cincinnati &c. Railway v. Keokuk & Hamilton Bridge Co., 131 U. S. 371; Central Transp. Co. v. Pullman’s Car Co., 139 U. S. 24; St. Louis &c. Railroad v. Terre Haute & Indianapolis Railroad, 145 U. S. 393; Union Pacific Railway v. Chicago &c. Railway, 163 U. S. 564, and McCormick v. Market Nat. Bank, 165 U. S. 538, recognize as sound doctrine that the powers of corporations'are such only as are conferred upon them by statute, and that, to quote from the opinion of the court in Central Transp. Co. v. Pullman's Palace Car Co., 139 U. S. 24, 59 to 60: “ A contract of a corporation, which is ultra wires, in the proper sense, that is to say, outside the object of its creation as defined in the law of its organization, and therefore beyond the powers conferred upon it by the legislature, is not voidable only, but wholly void, and of no legal effect. The objection to the contract is, not merely that the corporation ought not to have made it, but that it could not make it. The contract cannot be ratified by" } ]

[ { "docid": "22743611", "title": "", "text": "not subject to review. Johnson v. Drew, 171 U. S. 93, 99; Public Clearing House v. Coyne, 194 U. S. 497, 508; United States v. Ju Toy, 198 U. S. 253, 263; Red “ C” Oil Co. v. North Carolina, 222 U. S. 380, 394; Mutual Film Co. v. Industrial Commission, 236 U. S. 230, 246. Compare Williamsport Wire Rope Co. v. United States, 277 U. S. 551, 560. Save as there may be an exception for issues presenting claims of constitutional right, such administrative findings on issues of fact are accepted by the court as conclusive if the evidence was legally sufficient to sustain them and there was no irregularity in the proceedings. Reetz v. Michigan, 188 U. S. 505, 507; Lieberman v. Van De Carr, 199 U. S. 552, 562; Douglas v. Noble, 261 U. S. 165, 167; Tagg Bros. & Moorhead v. United States, 280 U. S. 420, 443. The adequacy of the scope of review offered by the Revenue Act of 1926 in the ease of a deficiency deter-, mined directly against the taxpayer was assumed in Old Colony Trust Co. v. Commissioner, 279 U. S. 716; and this procedure is now thoroughly established. Questions of fact involved in proceedings against transferees are no different or more complex than those often en-' countered in determining the direct liability of a\"taxpayer. The alternative judicial review provided is adequate in both cases. Second. It is urged by amid curiae that the method of assessment and collection permitted by § 280 (a) (1) cannot be applied where, as in the case at bar, the transfer of assets, upon which the transferee’s liability is based, occurred prior to the enactment of the Revenue Act of 1926; and, moreover, that if applied retroactively to such transfer, the section would be unconstitutional. The power of Congress to provide an additional remedy for the enforcement of existing liabilities is clear. Compare Graham & Foster v. Goodcell, 282 U. S. 409, 427. It is clear also that Congress intended that the section should be available for enforcing the liability of a transferee in respect" }, { "docid": "7742008", "title": "", "text": "avoiding the injurious consequences which would otherwise result. In the present case a trust was declared and this trust should not be permitted to fail and the property to be diverted from those for whom it was intended, by-treating the conveyance to the bank as a nullity, in the absence of a clear statement of legislative intent that it should be so regarded. The cases in this court, which are relied upon by the plaintiff in error, are not applicable to' the facts here presented and are in no way inconsistent with the doctrine to which we have referred. McCormick v. Market Bank, 165 U. S. 538; California Bank v. Kennedy, 167 U. S. 362; Concord First National Bank v. Hawkins, 174 U. S. 364. It was also urged by the plaintiff in error that the deed was not accepted by the bank, and was inoperative for that reason. The Supreme Court of Missouri held upon the evidence that it was accepted, and. this court,’ on a question of that character, does not review the findings of fact which have been made in the state court. Waters-Pierce Oil Co. v. State of Texas, 212 U. S. 86; Egan v. Hart, 165 U. S. 188; Clipper Mining Co. v. Eli Mining & Land Co., 194 U. S. 220. Assuming that the deed’was accepted by the bank, it' was effective to pass the legal title, and the plaintiff in error as heir at law of the grantor cannot question it. Judgment-affirmed." }, { "docid": "22068322", "title": "", "text": "contended, the claim of confiscation compels this court to decide, upon the weight of the evidence, whether or not its property has been undervalued or unless some error in law is shown. The case is here on writ of error to a state court. It is settléd that in such cases we accept the facts as there found, not only in actions at law, Dower v. Richards, 151 U. S. 658; but, also, where, as in chancery, the record contains all the evidence and it was open for consideration by and actually , passed upon by the highest court of thé State, Egan v. Hart, 165 U. S. 188; Waters-Pierce Oil Co. v. Texas, 212 U. S. 86, 107. And this is true, although the existence of.a federal question depends upon the determination of the issue of fact,- and although the finding of fact will determine whether or not there has been a taking of property in violation of the Fourteenth Amendment. Minneapolis & St. Louis R. R. Co. v. Minnesota, 193 U. S. 53, 65. This court may, of course, upon writ of error to a state court “examine the entire record, including the evidence, ... to determine whether what purports to be a finding upon questions of fact is so involved with and dependent upon questions of Jaw as to be in substance and effect a decision of the latter,” Kansas City Southern Ry, Co. v. Albers Commission Co., 223 U. S. 573, 591-593; Cedar Rapids Gas Light Co. v. Cedar Rapids, 223 U. S. 655, 668; Graham v. Gill, 223 U. S. 643, 645. But in order that such examination may be required-or be permissible, its purpose must not be to pass upon the relative weight of conflicting evidence, Oregon Railroad & Navigation Co. v. Fairchild, 224 U. S. 510, 528, and to substitute the judgment therein of this court for that of the lower court; but to ascertain whether a finding was unsupported by evidence, or whether evidence was properly admitted or excluded, or whether in some other way. a ruling was involved which is within" }, { "docid": "4365893", "title": "", "text": "this matter, we prefer to pass it by and affirm the judgment on the merits. On the merits, appellant argues five points. I. The first of these is that the statutory stock liability cannot be avoided by a conveyance of the stock to one not legally capable of assuming it and that this applies to a conveyance to a trustee for minors. It is a well-established rule of law, applicable to corporations generally, that a transfer of stock must be made to one not only legally capable of holding stock but who may lawfully assume the obligations attaching to ownership of such stock — by assumption of obligations, financial responsibility is not meant but legal liability to respond. There is no reason why this rule should not apply to national bank stock and it has been so applied: As to minors, Early v. Richardson, 280 U. S. 496, 50 S. Ct. 176, 74 L. Ed. 575; Aldrich v. Bingham (D. C.) 131 F. 363; Foster v. Chase (C. C.) 75 F. 797; and Foster v. Wilson (C. C.) 75 F. 797. As to national banks, Concord First National Bank v. Hawkins, 174 U. S. 364, 19 S. Ct. 739, 43 L. Ed. 1007; California Bank v. Kennedy, 167 U. S. 362, 17 S. Ct. 831, 42 L. Ed. 198; and Johnston v. Lafiin, 103 U. S. 800, 26 L. Ed. 532. But this rule is not held to prevent transfer of stock to a trustee of a valid trust. Ordinarily, the trustee may be required to respond to the obligation of the stock and either is allowed to recoup from the trust estate in his hands (Taylor v. Davis, 110 U. S. 330, 335, 4 S. Ct. 147, 28 L. Ed. 163) or the execution on the judgment against him runs only against the trust estate (Hampton v. Foster [C. C. Mass.] 127 F. 468). There is no doubt that such trustees may hold national bank stock, for section 66, title 12 U SCA, unmistakably, implies such by its provisions as to liability on stock so held. Also, that section" }, { "docid": "22553597", "title": "", "text": "it was a claim of a right or immunity under a statute of the United States. Recent decisions of this court remove all doubt from the answer to this question. McCormick v. Market Bank, 165 U. S. 538; California Bank v. Kennedy, 167 U. S. 362; San José Land and Water Co. v. San José Ranch Co., 189 U. S. 177; Nutt v. Knut, 200 U. S. 12; Rector v. City Deposit Bank, 200 U. S. 405; Illinois Central Railroad v. McKendree, 203 U. S. 514; Eau Claire National Bank v. Jackman, 204 U. S. 522; Hammond v. Whittredge, 204 U. S. 538. The principles to be derived from the cases are these: Where a party to litigation in a state court insists, by way of objection to or requests for instructions, upon a construction of a statute of the United States which will lead, or, on possible findings of fact from the evidence may lead, to a judgment in his favor, and his claim in this respect, being duly set up, is denied by the highest court of. the State, then the question thus raised may be reviewed in this court. The plain reason is that in all such cases he has claimed in the state court a right or ■immunity under a law of the United States and it has been denied to him. Jurisdiction so clearly warranted by the Constitution and so explicitly conferred by the act of Congress needs no justification. But it may not be out of place to say that in no other manner can a uniform construction of the ■statute laws of the United States be secured, so that they shall have the same meaning and effect in all the States of the Union. It is clear that these principles govern the case at bar. The . defendant, now plaintiff in error, objected to an erroneous construction of the Safety Appliance Act, which warranted on the evidence a judgment against it, and insisted upon a cor rect construction of the act, which warranted on the evidence a judgment in its favor. The denials" }, { "docid": "7742004", "title": "", "text": "writ of error. The plaintiff in error challenges the conveyance made by James H. Kerfoot to the bank, upon the ground that under § 5137 of the Revised Statutes of. the United States, relating to national banks, the bank was without power to take the property, and hence that no title passed by the deed, but that it remained in the grantor and descended to the plaintiff in error as his heir at law. It appears that the deed, which was absolute in form, with warranty and expressing a substantial, consideration, was executed in pursuance of an arrangement by which the title to the property was to be held in trust to be conveyed upon the direction of the grantor; and the Supreme Court of Missouri decided that a trust was in fact declared by the grantor in favor of Hervey, Alwilda and Lester R. Ker-foot, to whom ran a quitclaim deed, which he prepared and forwarded to the bank to be signed and acknowledged by it and then returned to him. But while the purpose of this transaction was not one of those described in the statute for which a national bank may purchase and hold real estate, it does not follow that the deed was a nullity and that it failed to convey title to the property. In the absence of a clear expression of legislative intention to the contrary, a conveyance of real estate to a corporation for a purpose not authorized by its charter, is not void, but voidable, and the sovereign alone can object. Neither the grantor nor his heirs nor third persons can impugn it upon the ground that the grantee has exceeded its powers. Smith v. Sheeley, 12 Wall. 358; National Bank v. Matthews, 98 U. S. 621; National Bank v. Whitney, 103 U. S. 99; Reynolds v. Crawfordsville Bank, 112 U. S. 405; Fritts v. Palmer, 132 U. S. 282; Leazure v. Hillegas, 7 Serg. & R. (Pa.) 313. Thus, although the statute by clear im-. plication forbids a national bank from making a loan upon real estate, the security is not" }, { "docid": "22068321", "title": "", "text": "order was coñfessedly reasonable. Interstate Commerce Commission v. Union Pacific R. R. Co., supra; San Diego Land & Town Co. v. Jasper, 189 U. S. 439, 441, 442. The presumption created by § 23, P. L., p. 1427, by which an order of the Commission is made prima facie evidence of its reasonableness is in no sense a limitation upon the scope of the review. It is in effect the presumption which this court has declared to exist in rate cases, independently of statute, in favor of the conclusion of an experienced administrative body reached after a full hearing. Darnell v. Edwards, 244 U. S. 564, 569. Sec&nd. As the company had the opportunity for a full judicial review through a suit in equity for an injunction, as it was not denied due process by disregard in the proceedings actually taken of the essentials of judicial process, and since.it is clear that the findings of the Commission were supported by substantial evidence, the judgment of the Supreme Court of Pennsylvania must be affirmed, unless, as contended, the claim of confiscation compels this court to decide, upon the weight of the evidence, whether or not its property has been undervalued or unless some error in law is shown. The case is here on writ of error to a state court. It is settléd that in such cases we accept the facts as there found, not only in actions at law, Dower v. Richards, 151 U. S. 658; but, also, where, as in chancery, the record contains all the evidence and it was open for consideration by and actually , passed upon by the highest court of thé State, Egan v. Hart, 165 U. S. 188; Waters-Pierce Oil Co. v. Texas, 212 U. S. 86, 107. And this is true, although the existence of.a federal question depends upon the determination of the issue of fact,- and although the finding of fact will determine whether or not there has been a taking of property in violation of the Fourteenth Amendment. Minneapolis & St. Louis R. R. Co. v. Minnesota, 193 U. S. 53," }, { "docid": "23098365", "title": "", "text": "were raised under the Fourteenth Amendment to the United States Constitution, and we think the court may be fairly taken to have regarded such questions as duly before it for consideration. Where a state court holds that a Federal question is- made before it, according to its practice, and proceeds to determine it, this court will regard the question as duly made. San Jose Land & Water Co. v. San Jose Ranch Co., 189 U. S. 177, 179-180; Haire v. Rice, 204 U. S. 291, 299; Chambers v. Baltimore & Ohio R. R., 207 U. S. 142, 148; Atchison, Topeka & Sanie Fé Ry. v. Sowers, 213 U. S. 55, 62. In the opinion of the Supreme Court upon rehearing the charge that the service of process was fraudulently procured by the predecessor in title of the defendant in error or her attorneys was held to be foreclosed by the findings of the court below, and the Supreme Court held that the findings were supported by testimony in the record showing competent evidence to that end. It is urged that upon this writ of error this court should reexamine the conclusions of fact just referred to and the rulings of thé Supreme Court of Indiana in respect thereto. This court has repeatedly held that in cases coming to it from the Supreme Court of a State it accepts as binding the findings upon issues of fact duly made in that court. Waters-Pierce Oil Co. v. Texas, 212 U. S. 86,107; Rankin v. Emigh, 218 U. S. 27, 34; Kerfoot v. Farmers' & Merchants' Bank, 218 U. S. 281, 288. That principle is applicable here. The case does not come within the exceptional class of cases where what purports to be a finding of fact is not strictly such but is so involved with and dependent upon questions of law bearing upon the alleged Federal right as to be a decision of those questions rather than of a pure question of fact, or where there is that entire lack of evidence to support the conclusion upon the Federal question that gives" }, { "docid": "22060617", "title": "", "text": "debts due to it, for- a longer period than five years.” In National Bank v. Matthews, 98 U. S. 621, 627, the question was directly presented whether a national bank was entitled to the benefit of a deed of trust upon real estate, which, with the noté described in it, was taken — not as security for, or in satisfaction of, debts previously contracted in the course of its dealings, but — for a loan made by the bank at the time the deed of trust was assigned to it. The Supreme Court of Missouri held the deed of trust to be void, in the hands of the bank, because its loan was made upon real estate security in violation of the statute. But this court, after observing that the result insisted upon did not necessarily follow, said : “ The .statute does not declare such a security void. It is silent upon the subject. If Congress so meant, it would have been easy to say so; and it is hardly to be believed that this would not have been done, instead of leaving the question to be settled by the uncertain result of litigation and judicial decision. Inhere usurious interest is contracted for, a forfeiture is prescribed and explicitly defined.” Again : “ \"Where a corporation is incompetent by its charter to take a title to real estate, a conveyance to it is .not void, but only voidable, and the sovereign alone can object. It is valid until assailed in a direct proceeding, instituted for that purpose.” In National Bank v. Whitney, 103 U. S. 99, 103, which involved the validity of a mortgage to a national bank, to secure future advances made to the mortgagor, the right of the bank to enforce the mortgage was sustained upon the principles announced in National Bank v. Matthews. The court said: “ Whatever objection there may be to it as security for -such advances from the prohibitory provisions of the statute, the ■objection can only be urged by the government.” To the same effect are Swope v. Leffingwell, 105 U. S." }, { "docid": "7742005", "title": "", "text": "purpose of this transaction was not one of those described in the statute for which a national bank may purchase and hold real estate, it does not follow that the deed was a nullity and that it failed to convey title to the property. In the absence of a clear expression of legislative intention to the contrary, a conveyance of real estate to a corporation for a purpose not authorized by its charter, is not void, but voidable, and the sovereign alone can object. Neither the grantor nor his heirs nor third persons can impugn it upon the ground that the grantee has exceeded its powers. Smith v. Sheeley, 12 Wall. 358; National Bank v. Matthews, 98 U. S. 621; National Bank v. Whitney, 103 U. S. 99; Reynolds v. Crawfordsville Bank, 112 U. S. 405; Fritts v. Palmer, 132 U. S. 282; Leazure v. Hillegas, 7 Serg. & R. (Pa.) 313. Thus, although the statute by clear im-. plication forbids a national bank from making a loan upon real estate, the security is not void and it cannot be successfully assailed by the debtor or by subsequent mortgagees because the bank was without authority to take it; and the disregard of the provisions of the act of Congress upon that subject only lays the bank open to proceedings by the Government for exercising powers not conferred by law. National Bank v. Matthews, supra; National Bank v. Whitney, supra; Swope v. Leffingwell, 105 U. S. 3. In National Bank v. Matthews, supra, viewing that case in this aspect, the court said: “The opinion of the Supreme Court of Missouri assumes that the loan was made upon real-estate security within the meaning of the statute, and their judgment is founded upon that view. These things render it proper to consider the case in that aspect. But, conceding them to be as claimed, the consequence insisted upon by no means necessarily follows. The statute does not declare such a. security void. It is silent upon the subject. If Congress so meant, it would have been easy to say so; and it is" }, { "docid": "22120387", "title": "", "text": "Mr. Justice Brewer, after making-the foregoing statement, ..delivered the opinion of the court. The single question in' the case is whether, as' between Texarkana and Goldthwaite-,' this was an interstate ship-merit. If so the . regulations of the state railroad commission, do not control, and.the court erred in enforcing the penalty. If, however, it was a purely local shipment, the judgment below was right and should be sustained. The facts are settled , by the special findings, those findings being conclusive upon this court. Dower v. Richards, 151 U. S. 658; Egan v. Hart, 165 U. S. 188; Thayer v. Spratt, 189 U. S. 346; Adams v. Church, 193, U. S. 510; Clipper Mining Co. v. Eli Mining & Land Co., 194 U. S. 220. The corn-was carried from Texarkana, Texas, to Goldthwaite,-Texas, upon a bill of’ lading which upon its face showed only a local transportation. It is, however, contended by the railway company that this local transportation was a continuation-of a shipment from Hudson, South Dakota, to Texarkana, Texas; that the place from which the corn started was Hudson, South Dakota, and the, place at which the transportation ended was Goldthwaite, Texas; that'such transportation was interstate commerce, and that its interstate character was not affected by the various changes of title or issues of bills of lading intermediate its departure from Hudson and its arrival at Goldthwaite. .It is undoubtedly true that the character of a shipment, whether local or interstate, is not changed by a transfer of title during the transportation. But whether it be one or the other may dfepend on the cqntract of shipment. The rights and obligations of carriers and shippers are reciprocal. The' first contract of shipment in this case was . from Hudson to ' Texarkana. During that transportation a contract was made at Kansas City for the sale of the corn, but. that dicl not affect the character of the shipment from Hudson to Texarkana. It .was an interstate shipment after the contract of sale as well as before. In other words, the transportation which was contracted for, and which was" }, { "docid": "2470170", "title": "", "text": "Sup. Ct. 1173, 41 L. Ed. 265; McCormick v. Market Bank, 165 U. S. 538, 17 Sup. Ct. 433, 41 L. Ed. 817; California Bank v. Kennedy, 167 U. S. 362, 17 Sup. Ct. 831, 42 L. Ed. 198. The expressions in the opinion of Mr. Justice Brewer in Eastern, etc., Ass’n v. Williamson, 189 U. S. 129, 23 Sup. Ct. 527, 47 L. Ed. 735, are but a concurrence of the Supreme Court in the statement by the state court of the law of that state. The Supreme Court, however, has, while refusing to maintain any action upon an ultra vires contract, permitted property or money, parted with on the faith of such unlawful contract, to be recovered back, or compensation to he made for it, upon the theory of an implied contract to return or make compensation for property or money which a corporation has obtained, and which it has no right to retain. Central Transportation Co. v. Pullman’s Car Co., supra; Pullman’s Car Co. v. Central Transportation Co., 171 U. S. 138, 18 Sup. Ct. 808, 43 L. Ed. 108; Aldrich v. Chemical National Bank, 176 U. S. 618, 20 Sup. Ct. 498, 44 L. Ed. 611; McCormick v. Market Bank, supra; Citizens’ National Bank v. Appleton, 216 U. S. 196, 30 Sup. Ct. 364, 54 L. Ed. 443; Rankin v. Emigh, 218 U. S. 27, 30 Sup. Ct. 672, 54 L. Ed. 915. But this rule, as I interpret the above-cited cases, is applicable only when the corporation setting up the ultra vires contract has itself received and enjoyed the property or money, and not when it has been received and enjoyed by a third party, although the defendant corporation may have been incidentally benefited thereby. In McCormick v. Market Bank, supra, speaking of this rule, Mr. Justice Gray said that an action could not be supported “to recover anything beyond the value of what the defendant has actually received and enjoyed.” In Rankin v. Emigh, supra, recovery was permitted to the extent only of the plaintiffs’ property which had been received and appropriated by the" }, { "docid": "7742006", "title": "", "text": "void and it cannot be successfully assailed by the debtor or by subsequent mortgagees because the bank was without authority to take it; and the disregard of the provisions of the act of Congress upon that subject only lays the bank open to proceedings by the Government for exercising powers not conferred by law. National Bank v. Matthews, supra; National Bank v. Whitney, supra; Swope v. Leffingwell, 105 U. S. 3. In National Bank v. Matthews, supra, viewing that case in this aspect, the court said: “The opinion of the Supreme Court of Missouri assumes that the loan was made upon real-estate security within the meaning of the statute, and their judgment is founded upon that view. These things render it proper to consider the case in that aspect. But, conceding them to be as claimed, the consequence insisted upon by no means necessarily follows. The statute does not declare such a. security void. It is silent upon the subject. If Congress so meant, it would have been easy to say so; and it is hardly to be believed that this would not have been done, instead of leaving the question to be settled by the uncertain result of litigation and judicial decision. Where usurious interest is contracted for, a forfeiture: is prescribed and explicitly defined. * * * * * * * * “Where a corporation is incompetent by its charter to take a title to real estate, a conveyance to it is not void, but only voidable, and the sovereign alone can object. It is valid until assailed in a direct proceeding instituted for that purpose. Leazure v. Hillegas, 7 Serg. & R. (Pa.) 313; Goundie v. Northampton Water Co., 7 Pa. St. 233; Runyon v. Coster, 14 Pet. 122; The Banks v. Poitiaux, 3 Rand. (Va.) 136; McIndoe v. The City of St. Louis, 10 Missouri, 575, 577. See also Gold Mining Co. v. National Bank, 96 U. S. 640.” This rule, while recognizing the authority of the Government to which the corporation is amenable, has the salutary effect of assuring the security of titlés and of" }, { "docid": "16233679", "title": "", "text": "in the way of praising their wares. . As we are of opinion that the defendant in error is entitled to keep his judgment, it does not matter so much as otherwise it would whether the result is.reached by a dismissal of the writ, on the intimation of Walworth v. Kneeland, 15 How. 348, 353; see Conde v. York, 168 U. S. 642, 649, or by an affirmance of the judgment. We shall assume that the defence under the statute was such a claim of immunity as to entitle the plaintiff n error to come here. Logan County National Bank v. Townsend, 139 U. S. 67, 72; McCormick v. Market Bank, 165 U. S. 538, 546. On that assumption, however, we do not perceive aow the defence is made out on the record. The complaint, to be sure alleges that .the bank was acting unlawfully in selling the bond, but it does not appear that Petrie knew the fact, and it would be a' strong thing to charge him with notice or a duty to make inquiries as to how the bank was conducting its business, or to make the validity of the sale depend upon the fact alone, irrespective of the purchaser’s knowledge. See Miners' Ditch Co. v. Zellerbach, 37 California, 543, 578, 579; New York & New Haven Railroad v. Schuyler, 34 N. Y. 30, 73 ; Madison & Indianapolis Railroad, v. Norwich Saving Society, 24 Indiana, 457, 462. The sale might have been lawful. It was not necessarily wrong. First National Bank of Charlotte v. National Exchange Bank of Baltimore, 92 U. S. 122, 128. However, we need not stop at this preliminary difficulty or another suggested by the answer, on which no point was made. The answer alleges that,the sale was without the authority or consent of the bank, and was not within the course of its regular business, which looks a good- deal like an attempt to deny that there ever was an effective salq and yet to keep the price. The declaration goes upon a rescission of the contract. It contains ambiguous language, but" }, { "docid": "23318386", "title": "", "text": "citythat the price should be kept high enough to allow a discount for prompt payment. The general power reserved to regulate rates was limited only by the Fourteenth Amendment. The words relied upon by the plaintiff express its promise in consideration, of the privileges granted, not á promise by the city. Knoxville Water Co. v. Knoxville, 189 U. S. 434, 437. It is true that the contract was in the form of an ordinance, but the ordinance was drawn as a contract to be' accepted and it was ac cepted by the plaintiff; it contained reciprocal undertakings, the one in question being that of the plaintiff, ..as we havé said; and.it was subject to the power retained by. the city to. regulate rates. That power, it was expressly provided by the Iowa statute, was not to be abridged by ordinance, resolution or contract. Code of 1897, §725, 22 G. A. (1888) ch. 16. . - Upon the issue under the Fourteenth Amendment, the plaintiff argues on the strength of Rev. Stat., § 709, that the facts are open to reexamination here. By that section it is provided that a writ of error to a state court “shall have the same effect as if the judgment or decree complained of had beep rendered or passed in a court of the •United States.” It is argued that as the decree pf a state court can.be reviewed only by writ of error the foregoing words give to á writ of error in a chancery case the effect of an appeal and open the evidence to reexamination to the same extent as upon an appeal. A suggestion to that efféct was made in Republican River Bridge Co. v. Kansas Pacific Ry. Co., 92 U. S. 315, 317, but the practice and decisions from an. early date have been the other way. Egan v. Hart, 165 U. S. 188, 189. Almonester v. Kenton, 9 How. 1, 7. Dower v. Richards, 151 U. S. 658, 663. Gardner v. Bonestell, 180 U. S. 362, 365, 370. Thayer v. Spratt, 189 U. S. 346, 353. German Savings &" }, { "docid": "23599349", "title": "", "text": "before the contract was executed. In the well-known case of Bank v. Matthews, 98 U. S. 627, 628, 629, 25 L. Ed. 188, it appeared that a national bank had loaned money on the security of real property in violation of section 5136 of the Revised Statutes [U. S. Comp. St. 1901, p. 3456], and was proceeding to foreclose the mortgage, whereupon the mortgagor sought to enjoin the foreclosure proceedings upon the ground that the mortgage was a nullity, because the bank had no authority to accept it as security for a loan. It was held, however, that the act of making the loan on the security of real property, although ultra vires, did not render the mortgage void; that the mortgagor could not successfully resist the foreclosure proceedings because of the ultra vires character of the transaction; and that the United States alone could challenge it, doing so by a proceeding to oust the bank of its franchises. The court said that a private person could not directly or indirectly usurp this function of the government, but that it was the right of the government to determine wheth er it would complain of the transaction. The same rule was reaffirmed in Reynolds v. Bank, 112 U. S. 405, 413, 5 Sup. Ct. 213, 28 L. Ed. 733, and was followed and enforced by this court in Sioux City Terminal R. & Warehouse Co. v. Trust Co. of North America, 27 C. C. A. 73, 83, 82 Fed. 124, 134. We are of opinion that the same doctrine is applicable when, as in the present case, a national bank makes an excessive investment in real property for the purpose of obtaining an eligible business location. Granting that it is guilty of an abuse of its powers in so doing, and that while the act is under way a stockholder may enjoin the threatened wrong, yet after the investment is made, and the conveyance to the bank has been executed and delivered, it is not void, but operates to vest in the bank such an estate as the conveyance by its" }, { "docid": "22747333", "title": "", "text": "bank’s receiver, even though he had known that the note was part of a scheme to deceive the state banking authorities by swelling the apparent assets of the bank. But in 1920 the Missouri Supreme Court made it clear that the Brady decision can no. longer be taken to represent the law of that state. Such is the purport of Bank of Slater v. Union Station Bank, 283 Mo. 308, 320, 222 S. W. 993, 996: “The facts in this case inevitably suggest the question [of estoppel] we have discussed in this paragraph. Counsel for respondent, however, have not raised it — being deterred, doubtless, by the decision in Title & Trust Co. v. Brady, 165 Mo. 197, where a contrary doctrine is countenanced — and we therefore refrain from ruling upon the proposition. We have touched upon it, for the reason that if the Brady case, supra, is considered as announcing The Missouri rule’ upon this topic, as some commentators have said, that rule is apparently in conflict with numerous and respectable authorities, and its soundness may admit of question.” No subsequent decision was cited, nor have we found any, to show that the court has since reverted to the doctrine of the Brady case. It cannot be said, therefore, that in holding petitioner estopped the trial judge departed from Missouri law. There is no federal statute to override either the Missouri law as to estoppel or the Illinois law which treats respondent as a holder in due course. Were this Court, in the absence of federal legislation, to make its own choice of law, compare United States v. Guaranty Trust Co., 293 U. S. 340; O’Brien v. Western Union Telegraph Co., 113 F. 2d 539; and Hinderlider v. La Plata Co., 304 U. S. 92, decided the same day as Erie R. Co. v. Tompkins, 304 U. S. 64, Illinois or Missouri law would furnish the governing principles. See Board of Comm’rs v. United States, 308 U. S. 343; Royal Indemnity Co. v. United States, 313 U. S. 289, 296; Just v. Chambers, 312 U. S. 383, 387." }, { "docid": "7742007", "title": "", "text": "hardly to be believed that this would not have been done, instead of leaving the question to be settled by the uncertain result of litigation and judicial decision. Where usurious interest is contracted for, a forfeiture: is prescribed and explicitly defined. * * * * * * * * “Where a corporation is incompetent by its charter to take a title to real estate, a conveyance to it is not void, but only voidable, and the sovereign alone can object. It is valid until assailed in a direct proceeding instituted for that purpose. Leazure v. Hillegas, 7 Serg. & R. (Pa.) 313; Goundie v. Northampton Water Co., 7 Pa. St. 233; Runyon v. Coster, 14 Pet. 122; The Banks v. Poitiaux, 3 Rand. (Va.) 136; McIndoe v. The City of St. Louis, 10 Missouri, 575, 577. See also Gold Mining Co. v. National Bank, 96 U. S. 640.” This rule, while recognizing the authority of the Government to which the corporation is amenable, has the salutary effect of assuring the security of titlés and of avoiding the injurious consequences which would otherwise result. In the present case a trust was declared and this trust should not be permitted to fail and the property to be diverted from those for whom it was intended, by-treating the conveyance to the bank as a nullity, in the absence of a clear statement of legislative intent that it should be so regarded. The cases in this court, which are relied upon by the plaintiff in error, are not applicable to' the facts here presented and are in no way inconsistent with the doctrine to which we have referred. McCormick v. Market Bank, 165 U. S. 538; California Bank v. Kennedy, 167 U. S. 362; Concord First National Bank v. Hawkins, 174 U. S. 364. It was also urged by the plaintiff in error that the deed was not accepted by the bank, and was inoperative for that reason. The Supreme Court of Missouri held upon the evidence that it was accepted, and. this court,’ on a question of that character, does not review the" }, { "docid": "23098366", "title": "", "text": "end. It is urged that upon this writ of error this court should reexamine the conclusions of fact just referred to and the rulings of thé Supreme Court of Indiana in respect thereto. This court has repeatedly held that in cases coming to it from the Supreme Court of a State it accepts as binding the findings upon issues of fact duly made in that court. Waters-Pierce Oil Co. v. Texas, 212 U. S. 86,107; Rankin v. Emigh, 218 U. S. 27, 34; Kerfoot v. Farmers' & Merchants' Bank, 218 U. S. 281, 288. That principle is applicable here. The case does not come within the exceptional class of cases where what purports to be a finding of fact is not strictly such but is so involved with and dependent upon questions of law bearing upon the alleged Federal right as to be a decision of those questions rather than of a pure question of fact, or where there is that entire lack of evidence to support the conclusion upon the Federal question that gives this court the right of review. Kansas City Southern Ry. Co. v. Albers Commission Co., 223 U. S. 573, 591; Creswill v. Knights of Pythias, 225 U. S. 246, 261; Southern Pacific Co. v. Schuyler, 227 U. S. 601, 611; Portland Ry. Co. v. Oregon R. R. Com’n, 229 U. S. 397, 411-412. The Supreme Court of Indiana stated the question upon the decision of which the Federal question of due process arises as follows: “The question is then presented whether the allegations, that appellant was a minor, was not a resident of Vander-' burgh county, was a resident of Gibson county, and had been for many years, that no summons was served on her, that she had no knowledge of the proceedings, did not waive service, nor did any one for her or in her behalf or with her consent, enter appearance for her, that she was not amenable to the jurisdiction of the sheriff of Vanderburgh county, that, notwithstanding that she was not served with process, the sheriff of Vanderburgh county made a" }, { "docid": "22553596", "title": "", "text": "But the appellate jurisdiction of this.court must be exercised “with such exceptions and under such regulations as the.Congress shall make.” Article III, § 4, Constitution. Congress has regulated and limited the appellate jurisdiction of this court over the state courts by § 709 of the Revised Statutes, and our jurisdiction in this respect extends only to the cases there enumerated, even though a wider jurisdiction might be permitted by the constitutional grant- of power. Murdock v. Memphis, 20 Wall. 590, 620. The words of that section material here are those authorizing this court to reexamine the judgments of the state courts “where any title, right, privi lege, or immunity is claimed under . . . any statute of . . . the United States, and the decision is against the title, right, privilege, or immunity , specially set up or claimed under such . . . statute.” There can be no doubt that the claim made here was specifically set up, claimed, and denied in the state courts. The question, therefore, precisely stated, is whether it was a claim of a right or immunity under a statute of the United States. Recent decisions of this court remove all doubt from the answer to this question. McCormick v. Market Bank, 165 U. S. 538; California Bank v. Kennedy, 167 U. S. 362; San José Land and Water Co. v. San José Ranch Co., 189 U. S. 177; Nutt v. Knut, 200 U. S. 12; Rector v. City Deposit Bank, 200 U. S. 405; Illinois Central Railroad v. McKendree, 203 U. S. 514; Eau Claire National Bank v. Jackman, 204 U. S. 522; Hammond v. Whittredge, 204 U. S. 538. The principles to be derived from the cases are these: Where a party to litigation in a state court insists, by way of objection to or requests for instructions, upon a construction of a statute of the United States which will lead, or, on possible findings of fact from the evidence may lead, to a judgment in his favor, and his claim in this respect, being duly set up, is denied by" } ]

[ { "docid": "587437", "title": "", "text": "29 U.S.C. § 153(d); Vaca v. Sipes, 386 U.S. 171, 182 [87 S.Ct. 903, 912, 17 L.Ed.2d 842], (1967). In those cases in which he decides that a complaint shall issue, the General Counsel becomes an advocate before the Board in support of the complaint. In those cases in which he decides not to issue a complaint, no proceeding before the Board occurs at all. The practical effect of this administrative scheme is that a party believing himself the victim of an unfair labor practice can obtain neither adjudication nor remedy under the labor statute without first persuading the Office of General Counsel that his claim is sufficiently meritorious to warrant Board consideration. NLRB v. Sears, Roebuck & Co., 421 U.S. 132, 138-39, 95 S.Ct. 1504, 1510, 11, 44 L.Ed.2d 29 (1975). We therefore conclude that Congress clearly intended the General Counsel of the Federal Labor Relations Authority to have unreviewable discretion to decline to issue unfair labor practice complaints. Since there is thus no “final order of the Authority” subject to judicial review under section 7123 of the Act, the petition for review herein is dismissed for lack of jurisdiction. So Ordered. . 5 U.S.C. § 7116 provides: § 7116. Unfair labor practices (a) For the purpose of this chapter, it shall be an unfair labor practice for an agency— (1) to interfere with, restrain, or coerce any employee in the exercise by the employee of any right under this chapter; (2) to encourage or discourage membership in any labor organization by discrimination in connection with hiring, tenure, promotion, or other conditions of employment; * * * * * (8) to otherwise fail or refuse to comply with any provision of this chapter. . 5 U.S.C. § 7118 sets forth the procedure to be followed when unfair labor practices are alleged to have occurred. 5 C.F.R. Part 2423 (1981) sets forth the Authority’s regulations implementing the statutory procedures. After filing of a charge, the Regional Director is directed to investigate and either issue a complaint or decline to issue a complaint. Id. § 2423.7. If the Regional Director declines" } ]

[ { "docid": "7312391", "title": "", "text": "seq., a federal employee can invoke the jurisdiction of the federal district courts to adjudicate a duty of fair representation action against the employee’s exclusive bargaining representative. Title VII of the Civil Service Reform Act (“CSRA”) explicitly governs labor-management relations in the federal sector. Section 7114(a)(1) imposes a duty of fair representation upon a labor organization which is the exclusive representative of the federal employees in its unit: “An exclusive representative is responsible for representing the interests of all employees in the unit it represents without discrimination and without regard to labor organization membership.” In the present case, Warren contends that Local 1759 breached its § 7114(a)(1) duty of fair representation by failing to proceed to arbitration. Section 7116 sets forth actions which constitute unfair labor practices for purposes of the CSRA. As the district court noted, the breach alleged by Warren would constitute an unfair labor practice under § 7116(b). In § 7105 of the CSRA, Congress gives the FLRA the powers and duties to take necessary and appropriate actions to effectively administer the provisions of the CSRA. Section 7105 confers upon the FLRA the authority to conduct hearings and resolve complaints of unfair labor practices. Section 7118 requires the General Counsel of the FLRA to investigate charges of unfair labor practices and to either issue a complaint or provide the charging party with a written statement of the reasons for not issuing a complaint. The district court, quoting from National Federation of Federal Employees, Local 1263 v. Commandant, Defense Language Institute, 493 F.Supp. 675, 679 (N.D.Cal. 1980) (“NFFE”), noted that under the CSRA Congress explicitly empowers the federal courts to act in three instances: First, it makes judicial review of final orders of the FLRA available only in the appropriate federal circuit court of appeals. 5 U.S.C. § 7123(a). Second, it provides that the FLRA may petition a circuit court of appeals for enforcement of its orders and for appropriate temporary relief of restraining order. 5 U.S.C. § 7123(b). Third, pursuant to § 7123(d), the FLRA, upon issuing an unfair labor practice complaint, may petition a federal district" }, { "docid": "14550550", "title": "", "text": "aggrieved by any final order of the Authority other than an order under— (1) section 7122 of this title (involving an award of an arbitrator), unless the order involves an unfair labor practice under section 711[6] of this title, . . . . . may ... institute an action for judicial review. The effect of this provision, as we explained above, is to make FLRA decisions reviewing arbitral awards judicially review able only if they “involve” a statutory unfair labor practice. Two features of the statutory language bear emphasis. First, section 7123(a)(1) identifies precisely what type of unfair labor practices confer jurisdiction on the federal courts. The FLRA order must deal with an unfair labor practice “under” the Act, or more precisely, “under” section 7116. Indeed, it seems somewhat anomalous to have “unfair labor practices” under anything other than the Act. “Unfair labor practice” is, after all, a statutory term of art; what constitutes an “unfair labor practice” is established by statute. See 5 U.S.C. § 7116(a), (b). Nonetheless, the unions in the two cases before us argue, to varying degrees, that “unfair labor practices” do in fact exist outside the statute. In essence, they contend that their collective bargaining agreements have incorporated the statutory unfair labor practices, such that “unfair labor practice” has taken on a more generic meaning, outside its statutory origins. We need not consider whether the term “unfair labor practice,” standing alone, could ever contemplate something other than an unfair labor practice as defined in subsections (a) and (b) of section 7116. For in the situation before us, Congress has removed any cause for doubt on such a point by including within section 7123(a)(1) a highly specific cross reference to a provision of the Act, expressly contemplating only the unfair labor practices therein defined. Second, the precision Congress employed in pinpointing exactly which of a potentially broad class of “unfair labor practices” suffice to confer federal court jurisdiction is counterbalanced by Congress’ relative generality in selecting the word “involves” as the operative standard. Courts, it has repeatedly been held, should assume that Congress intends the words" }, { "docid": "5106043", "title": "", "text": "for carrying out the purpose of this chapter.” 5 U.S.C. §§ 7104, 7105(a)(1). Section 7105, prescribing the FLRA’s broad powers and duties, makes clear the FLRA’s responsibility to resolve issues relating to the duty to bargain in good faith and to investigate and resolve complaints of unfair labor practices. 5 U.S.C. § 7105(a)(2)(E), (G). Section 7118 of the Act details the procedure the FLRA General Counsel must follow upon receiving a charge of any unfair labor practice. 5 U.S.C. § 7118. Such practices are extensively enumerated in § 7116 and include refusals to bargain under § 7116(a)(5). 5 U.S.C. § 7116. Furthermore, under § 7117 the FLRA has authority to consider matters concerning the duty to bargain in good faith. 5 U.S.C. § 7117. In addition to the wide range of functions which Congress has entrusted to the FLRA, the structure of the statutory scheme itself indicates that Congress intended no independent federal court jurisdiction over such matters. The Act explicitly empowers the federal courts to act in three instances. First, it makes judicial review of final orders of the FLRA available only in the appropriate federal circuit courts of appeals. 5 U.S.C. § 7123(a). Second, it provides that the FLRA may petition a circuit court of appeals for enforcement of its orders and for appropriate temporary relief or restraining order. 5 U.S.C. § 7123(b). Third, pursuant to § 7123(d), the FLRA, upon issuing an unfair labor practice complaint, may petition a federal district court for temporary injunctive relief. 5 U.S.C. § 7123(d). The statutory scheme thus reflects Congressional intention to create an agency to deal with “special requirements and needs of the Government” in the field of labor-management relations and to delegate to that agency a broad range of functions to carry out its task. The statutory scheme further indicates that Congress has provided an explicit, but closely circumscribed, role for the federal courts as outlined in § 7123. The Act read as a whole thus establishes without equivocation the Congressional intent that the statutory procedures be deemed exclusive. Whitney National Bank, supra, 379 U.S. at 426-22, 85 S.Ct." }, { "docid": "14550592", "title": "", "text": "dismiss. Because of that view, I turn to the merits in both cases. II. Overseas Education Association — Merits The arbitrator in OEA rejected the Department of Defense Dependents’ Schools’ (DODDS’) claim that, because Schussel filed an unfair labor practice charge under §§ 7116 and 7118 on December 11, 1981, § 7116(d) barred him from pressing the grievance he subsequently filed on March 26, 1982. However, the FLRA set aside the arbitrator’s award as “contrary to section 7116(d).” According to the Authority, there was an election in this case in the discretion of the aggrieved party to raise the disputed matter under the unfair labor practice procedures. In this regard the clear purpose and effect of section 7116 (d) is to prevent relitigation of an issue in another forum after a choice of procedures in which to raise the issue has been made by the aggrieved party. Thus, the matter in dispute in this case was prohibited from being relitigated under the grievance procedure, and consequently the grievance before the Arbitrator was precluded by the Statute from consideration. For these reasons, the award is deficient as contrary to section 7116(d) of the Statute and is set aside. (Citations omitted.) I agree that the purpose and effect of § 7116(d) is to prevent relitigation of an issue in a different forum. But the mere initial selection of a procedure in which to raise an issue does not necessarily constitute a binding selection. Schussel’s original unfair labor practice charge followed the procedures set forth in § 7118 of the Act. Under that provision, the FLRA general counsel investigates unfair labor practice charges to determine whether sufficient grounds exist for the issuance of a complaint. Only after a complaint is issued does a full hearing and adjudication ensue. When the FLRA. advised the union that there was insufficient evidence of an unfair labor practice, the union withdrew the charge. A complaint never issued and the statutory unfair labor practice charge was never adjudicated on the merits. Moreover, as the arbitrator noted, § 105.-011 of the FLRA Case Handling Manual (Manual) provides that “a" }, { "docid": "14550545", "title": "", "text": "§ 7101 et seq. (1982 & Supp. III 1985). The Statute establishes essentially a two-track system for resolving labor disputes. Under the first route, a par ty subjected to an unfair labor practice, as defined in section 7116, can file a charge with the Authority’s General Counsel, who must investigate and determine whether a complaint should issue. See 5 U.S.C. § 7118(a). If a complaint is issued, then the matter is adjudicated by the FLRA. Its ensuing decision is, in turn, subject to judicial review. Id. § 7123. The second route involves the collective bargaining agreement. Section 7121 of the statute directs that such agreements include grievance procedures. The Act further mandates that any dispute not satisfactorily resolved through the negotiated grievance procedure is subject to binding arbitration, which may be invoked by either party. Id. § 7121(b)(3)(C). The arbitrator’s decision can then be reviewed by the FLRA pursuant to section 7122. Importantly, judicial review of the FLRA’s deter-mination in such cases is generally foreclosed by section 7123. That section provides for judicial review only for orders other than those under “section 7122 of this title (involving an award by an arbitrator), unless the order involves an unfair labor practice under section 711[6] of this title.” 5 U.S.C. § 7123(a) (emphasis added). In other words, the statute as a general matter removes FLRA decisions reviewing arbitral awards from judicial review, but carves out an exception of decisive relevance to the cases at hand — arbitral decisions are to be subjected to judicial scrutiny only when the FLRA’s order “involves an unfair labor practice under section 711[6] of this title.” Id. The rationale for circumscribed judicial review of such cases is not hard to divine. It is firmly grounded in the strong Congressional policy favoring arbitration of labor disputes and accordingly granting arbitration results substantial finality. See id. § 7122 (FLRA review of arbitration awards is limited; in absence of exception, arbitral award “shall be final and binding”). The pertinent legislative history indicates that “[i]n light of the limited nature of the Authority’s review,” Congress found it “inappropriate for there to" }, { "docid": "14550575", "title": "", "text": "7118 of this title, or (2) section 7112 of this title (involving an appropriate unit determination), may, during the 60-day period beginning on the date on which the order was issued, institute an action for judicial review of the Authority’s order in the United States court of appeals in the circuit in which the person resides or transacts business or in the United States Court of Appeals for the District of Columbia. 5 U.S.C. § 7123(a). .The statutory process would always be available to address an alleged statutory unfair labor practice. See 5 U.S.C. § 7118. As noted above, the grievance process may also be available to address statutory unfair labor practices because the collective bargaining agreement permits such matters to be grieved. For example, the collective bargaining agreement in OEA is highly general with respect to what issues may be raised in a grievance procedure. The applicable provision permits \"any matter of concern or dissatisfaction to a teacher or group of teachers within the recognized unit” to be grieved, with certain exceptions not relevant here. Agreement between the Overseas Education Association and the Department of Defense Dependents Schools, art. 13, § 2, reprinted in No. 85-1420 Joint Appendix (J.A.). This provision is certainly broad enough to permit an aggrieved party to invoke the grievance procedures by alleging a statutory unfair labor practice. The situation referred to in text is somewhat different, involving underlying conduct that could be characterized as a statutory unfair labor practice, but is instead grieved as a violation of the collective bargaining agreement. . Section 7116(d) provides, in its entirety, as follows: (d) Issues which can properly be raised under an appeals procedure may not be raised as unfair labor practices prohibited under this section. Except for matters wherein, under section 7121(e) and (f) of this title, an employee has an option of using the negotiated grievance procedure or an appeals procedure, issues which can be raised under a grievance procedure may, in the direction of the aggrieved party, be raised under the grievance procedure or as an unfair labor practice under this section, but not" }, { "docid": "18557531", "title": "", "text": "unjustified one-day disciplinary suspension of Tonetti. There was no assertion made that the Agency had violated section 7116, and the Authority’s final decision sustaining the arbitration award makes no reference to any violation of section 7116. In addition, having reviewed the Authority’s decision we conclude that an unfair labor practice as that term is defined was not “a necessary ground” for the decision. Id. Consequently, Tonetti’s petition for review must be DISMISSED. . 5 U.S.C. 7122(a) provides: (a) Either party to arbitration under this chapter may file with the Authority an exception to any arbitrator's award pursuant to the arbitration (other than an award relating to a matter described in section 7121(f) of this title). If upon review the Authority finds that the award is deficient— (1) because it is contrary to any law, rule, or regulation; or (2) on other grounds similar to those applied by Federal courts in private sector labor-management relations; the Authority may take such action and make such recommendations concerning the award as it considers necessary, consistent with applicable laws, rules or regulations. . 5 U.S.C. § 7123(a) provides: (a) Any person aggrieved by any final order of the Authority other than an order under— (1) section 7122 of this title (involving an award by an arbitrator), unless the order involves an unfair labor practice under section 7118 of this title, or (2) section 7112 of this title (involving an appropriate unit determination), may, during the 60-day period beginning on the date on which the order was issued, institute an action for judicial review of the Authority’s order in the United States court of appeals in the circuit in which the person resides or transacts business or in the United States Court of Appeals for the District of Columbia." }, { "docid": "22263604", "title": "", "text": "jurisdiction under 5 U.S.C. § 7123 to review the FLRA decision and order overturning the results of the representation election and directing a second election. Section 7123 in its relevant portion states: § 7123. Judicial review; enforcement (a) Any person aggrieved by any final order of the Authority other than an order under — . (1) section 7122 of this title (involving an award by an arbitrator), unless the order involves an unfair labor practice under section 7118 of this title, or (2) section 7112 of this title (involving an appropriate unit determination), may, during the 60-day period beginning on the date on which the order was issued, institute an action for judicial review of the Authority’s order in the United States court of appeals in the circuit in which the person resides or transacts business or in the United States Court of Appeals for the District of Columbia. Congress did not specifically provide in section 7123(a) for direct review of “election” orders, only “final” orders. The question we must decide, therefore, is whether the election order in this case is a “final order of the Authority” subject to judicial review under section 7123 of the Act. IBPO contends that it is clear that Congress, by passing section 7123, granted the courts of appeal jurisdiction to hear appeals from all final orders of the Authority except matters arising out of an award by an arbitrator under § 7122 and bargaining unit determinations made under § 7112. According to IBPO, the clear and unambiguous terms of the statute allow for appellate jurisdiction for decisions made, as here, under section 7111. IBPO’s contention seems to be based on the maxim “expressio unius est exclusio alteráis.” The rule of exclusion, however, is only an aid to statutory construction, not a rule of law. The controlling consideration is legislative intent and the maxim can be overcome by strong indicia of contrary congressional intent. Middlesex County Sewerage Authority v. National Sea Clammers Ass’n, 453 U.S. 1, 15, 101 S.Ct. 2615, 2624, 69 L.Ed.2d 435 (1981); Massachusetts Trustees of Eastern Gas & Fuel Associates v. United" }, { "docid": "14550599", "title": "", "text": "the employer-agency’s violation) would have prevented the loss of pay occasioned by the change. 809 F.2d at 859. . As the court's opinion points out, the reference to \"section 7118” is a misprint. The correct reference is to section 7116 which sets forth unfair labor practices under the statute. American Fed'n of Gov't Employees v. FLRA, 675 F.2d 612, 613 n. 2 (4th Cir.1982). . I do not forget that in this Act Congress stated that collective bargaining \"safeguards the public interest\" and \"contributes to the effective conduct of public business.\" 5 U.S.C. § 7101(a). Congress also provided expressly for arbitration under collective bargaining agreements. 5 U.S.C. §§ 7121(a)(1) and 7121(b)(2)(b). There is no indication in the legislative history that arbitrators’ decisions involving \"unfair labor practices” are to be treated differently depending on the source of the \"unfair labor practice.” The legislative history of § 7123(a) throws little light on the precise coverage of cases in which the FLRA order \"involves an unfair labor practice under section 711 [6] of this title,” but I am satisfied that that history does not suggest, let alone compel, the Authority’s reading. .That \"different theory” was \"whether a contractual undertaking to negotiate had been superseded by a later Congressional enactment. The issue was one of negotiability and whether there was a duty to negotiate, not a claim that an unquestioned duty to negotiate had been breached.” 675 F.2d at 613-14. . Under the Authority’s interpretation of § 7123(a), if employees do not redundantly grieve § 7116 of the statute, even though their collective bargaining agreement fully embraces § 7116 protections, they forfeit their right to judicial review. . Article 2, Section 3(C) of the parties’ agreement provides that ”[e]ach teacher has the right, freely and without fear of penalty or reprisal, to form, join, and assist the [union] and shall be protected in the exercise of this right. Management shall ensure that teachers are apprised of their rights, and that no interference, restraint, coercion or discrimination is practiced within DODDS to discourage membership in the [union].” The statutory corollary, 5 U.S.C. § 7102, provides" }, { "docid": "14550574", "title": "", "text": "in the two proceedings was not the same (either in terms of the factual predicate or the legal framework), section 7116 (d) never came into play. The Authority’s invocation of that provision was therefore in error. Accordingly, we remand OEA to the FLRA for further proceedings consistent with this opinion. It is so ordered. . A decision by the General Counsel not to issue a complaint pursuant to section 7118(a)(1) is not subject to judicial review. See Turgeon v. FLRA, 677 F.2d 937 (D.C.Cir.1982). . The statute actually refers to section 7118, not section 7116. The reference to section 7118, however, has been recognized to be an error; the correct reference is to section 7116. See AFGE, Local 1923 v. FLRA, 675 F.2d 612, 613 n. 2 (4th Cir.1982). Section 7123(a) reads in its entirety as follows: (a) Any person aggrieved by any final order of the Authority other than an order under— (1) section 7122 of this title (involving an award of an arbitrator), unless the order involves an unfair labor practice under section 7118 of this title, or (2) section 7112 of this title (involving an appropriate unit determination), may, during the 60-day period beginning on the date on which the order was issued, institute an action for judicial review of the Authority’s order in the United States court of appeals in the circuit in which the person resides or transacts business or in the United States Court of Appeals for the District of Columbia. 5 U.S.C. § 7123(a). .The statutory process would always be available to address an alleged statutory unfair labor practice. See 5 U.S.C. § 7118. As noted above, the grievance process may also be available to address statutory unfair labor practices because the collective bargaining agreement permits such matters to be grieved. For example, the collective bargaining agreement in OEA is highly general with respect to what issues may be raised in a grievance procedure. The applicable provision permits \"any matter of concern or dissatisfaction to a teacher or group of teachers within the recognized unit” to be grieved, with certain exceptions not relevant" }, { "docid": "22263603", "title": "", "text": "POV is compatible with accomplishing the government’s business. A consideration of these factors, combined with the requirement of 5 U.S.C. § 5733 that the means of travel used “shall be commensurate with the nature and purpose of the duties of the employee requiring such travel,” obligates the agency to make a case-by-case determination regarding the form of transportation. The statute and regulations contemplate that the agency is to take into consideration all the indicated criteria in each situation. Because a case-by-case determination must be made in each instance regarding the mode of transportation used by the employee, the INS did not have the broad discretion necessary to establish a uniform or controlling “past practice” of allowing agents of the Northern Region to use their POVs in travelling to extended details outside the region. There being no uniform practice, and hence no “past practice,” the agency could not have made a unilateral change and accordingly, no violation of section 7116(a)(1) and (5) could have resulted from that refusal. C. Jurisdiction IBPO argues that this court has jurisdiction under 5 U.S.C. § 7123 to review the FLRA decision and order overturning the results of the representation election and directing a second election. Section 7123 in its relevant portion states: § 7123. Judicial review; enforcement (a) Any person aggrieved by any final order of the Authority other than an order under — . (1) section 7122 of this title (involving an award by an arbitrator), unless the order involves an unfair labor practice under section 7118 of this title, or (2) section 7112 of this title (involving an appropriate unit determination), may, during the 60-day period beginning on the date on which the order was issued, institute an action for judicial review of the Authority’s order in the United States court of appeals in the circuit in which the person resides or transacts business or in the United States Court of Appeals for the District of Columbia. Congress did not specifically provide in section 7123(a) for direct review of “election” orders, only “final” orders. The question we must decide, therefore, is whether the" }, { "docid": "22263606", "title": "", "text": "States; 312 F.2d 214 (1st Cir.1963), aff’d, 377 U.S. 235, 84 S.Ct. 1236, 12 L.Ed.2d 268 (1964). The legislative history of section 7123 reveals that the House expressly attempted in its version of the section to make the following FLRA orders directly appealable: section 7116 unfair labor practice orders; section 7122 orders (involving an award by an arbitrator); and section 7112 orders (involving an appropriate bargaining unit determination). The House Report on its bill explained its version of section 7123 as follows: Section 7123 provides for judicial review of certain final orders of the Authority by the circuit courts of appeal, enforcement of orders of the Authority by the same courts, and injunctive relief in appropriate cases. Section 7123(a) provides that (1) the final order of the Authority in an unfair labor practice proceeding under section 7116, as added by the bill; (2) the award by an arbitrator (which has been reviewed by the Authority in accordance with section 7122, as added by the bill); or (3) a determination of appropriate unit under section 7112; may upon the filing of an appropriate pleading by an aggrieved party within 60 days from the issuance of the order or award, be reviewed by the appropriate United States court of appeals. Jurisdiction is within the circuit where the aggrieved person resides or transacts business, or, in any case, in the District of Columbia Circuit. See, H.R.Rep. No. 1403, 95th Cong., reprinted in Subcomm. on Postal Personnel and Modernization of the Comm, on Post Office and Civil Service, 96th Cong., 1st Sess., Legislative History of the Federal Service Labor-Management Relations Statute, Title VII of the Civil Service Reform Act of 1978, at 703. See also 124 Cong.Rec. 28,204 (1978). From this it can be seen that the House version of section 7123 did not propose that section 7111 election decisions be subject to judicial review. On the other hand, the Senate version of the statute was even more restrictive on appealable orders than the House version. It provided for judicial review of the Authority’s decisions only as they concerned unfair labor practice orders. S." }, { "docid": "14550582", "title": "", "text": "with the result in No. 85-1420, Overseas Education Association, et al. (OEA), but my reasoning, both on jurisdiction and as to the merits, differs from that of the majority. In No. 85-1753, National Treasury Employees Union (NTEU), I would hold that this court has jurisdiction and therefore I go on to discuss the merits. L Jurisdiction The Federal Labor Relations Authority (Authority or FLRA) filed motions to dismiss in both cases on the ground that this court lacks subject matter jurisdiction over the petitions for review under § 7123 of the Federal Service Labor-Management Relations Act. That provision, which sets forth the exclusive scheme for judicial review of FLRA orders, declares in pertinent part: (a) Any person aggrieved by any final order of the Authority other than an order under— (1) section 7122 of this title (involving an award of an arbitrator), unless the order involves an unfair labor practice under section 7118 of this title * * * *, may, during the 60-day period beginning on the date on which the order was issued, institute an action for judicial review of the Authority’s order in the United States court of appeals in the circuit in which the person resides or transacts business or in the United States Court of Appeals for the District of Columbia. (Emphasis added.) Thus, “unless the [Authority’s] order involves an unfair labor practice under section 711[6],” an FLRA decision reviewing an arbitration award is immune from judicial review. The Authority’s argument is that this immunity extends to both FLRA decisions challenged in the two review petitions now before us. The FLRA concedes that each grievance could plainly have alleged a statutory unfair labor practice under § 7116. However, the Authority characterizes its decision in each case as one “involving an arbitration award in which the grievance alleged only violations of provisions of the parties’ [collective bargaining] agreement.” This pleading failure, the FLRA concludes, is sufficient to deprive us of jurisdiction. I disagree. In my view, Congress’ reference in § 7123 to a case involving “an unfair labor practice under section 711[6]” includes both one involving" }, { "docid": "14550544", "title": "", "text": "STARR, Circuit Judge: These two cases present similar issues concerning the scope of federal court jurisdiction over decisions by the Federal Labor Relations Authority reviewing arbitral awards pursuant to a collective bargaining agreement. In both cases, the FLRA moved to dismiss the petition for review on the ground that the court lacks jurisdiction under 5 U.S.C. § 7123(a)(1) (1982). Applying a jurisdictional analysis previously embraced by our colleagues in the Second, Fourth, Ninth, and Eleventh Circuits, we conclude that jurisdiction lies in only one of the two cases. Specifically, we lack jurisdiction in No. 85-1753, concerning the National Treasury Employees Union (NTEU); however, jurisdiction does lie in No. 85-1420, concerning the Overseas Education Association (OEA). These conclusions render it necessary to reach the merits only in OEA, as to which we are persuaded, for reasons set forth in the latter part of this opinion, that the case should be remanded to the Authority. I A Both petitions center around the scope of the judicial review provision of the Federal Service Labor-Management Relations Statute, 5 U.S.C. § 7101 et seq. (1982 & Supp. III 1985). The Statute establishes essentially a two-track system for resolving labor disputes. Under the first route, a par ty subjected to an unfair labor practice, as defined in section 7116, can file a charge with the Authority’s General Counsel, who must investigate and determine whether a complaint should issue. See 5 U.S.C. § 7118(a). If a complaint is issued, then the matter is adjudicated by the FLRA. Its ensuing decision is, in turn, subject to judicial review. Id. § 7123. The second route involves the collective bargaining agreement. Section 7121 of the statute directs that such agreements include grievance procedures. The Act further mandates that any dispute not satisfactorily resolved through the negotiated grievance procedure is subject to binding arbitration, which may be invoked by either party. Id. § 7121(b)(3)(C). The arbitrator’s decision can then be reviewed by the FLRA pursuant to section 7122. Importantly, judicial review of the FLRA’s deter-mination in such cases is generally foreclosed by section 7123. That section provides for judicial review only" }, { "docid": "14550591", "title": "", "text": "a quintessential unfair labor practice under § 7116. That this unfair labor practice was “necessarily implicated” or “involved” (to use the § 7116 term) is abundantly clear from the transcript of the arbitration hearing, the parties’ post-hearing briefs, the arbitrator’s decision, and the Authority’s decision modifying the arbitrator’s award, all of which either specifically refer to or acknowledge the fact that the grievance involved an unfair labor practice. Tonetti v. Federal Labor Rel. Auth., 776 F.2d 929 (11th Cir.1985), clearly did not at all involve an unfair labor practice as defined in § 7116 or in a comparable provision of a collective bargaining agreement; instead, it involved a simple disciplinary proceeding for being AWOL. Nor do I find helpful the Authority’s argument that both cases before us involve “pure grievances.” See Devine v. White, 697 F.2d 421 (D.C.Cir.1983). The ultimate issue is whether the Authority’s order “involves an unfair labor practice.” Thus, in proper cases, even “pure grievances” are subject to judicial review. Id. at 445-46. On these grounds I would deny each motion to dismiss. Because of that view, I turn to the merits in both cases. II. Overseas Education Association — Merits The arbitrator in OEA rejected the Department of Defense Dependents’ Schools’ (DODDS’) claim that, because Schussel filed an unfair labor practice charge under §§ 7116 and 7118 on December 11, 1981, § 7116(d) barred him from pressing the grievance he subsequently filed on March 26, 1982. However, the FLRA set aside the arbitrator’s award as “contrary to section 7116(d).” According to the Authority, there was an election in this case in the discretion of the aggrieved party to raise the disputed matter under the unfair labor practice procedures. In this regard the clear purpose and effect of section 7116 (d) is to prevent relitigation of an issue in another forum after a choice of procedures in which to raise the issue has been made by the aggrieved party. Thus, the matter in dispute in this case was prohibited from being relitigated under the grievance procedure, and consequently the grievance before the Arbitrator was precluded by the" }, { "docid": "14550569", "title": "", "text": "so, the Authority considered exactly what provisions Schussel’s unfair labor practice charge alleged had been violated. See id. (citing 5 U.S.C. § 7116(a)(1), (2)). After assessing the nature of the unfair labor practice charge, the Authority expressly concluded “that the is sue raised both by the charge and the grievance was the same.” The precise issue before us is whether the FLRA's decision “involves” a statutory unfair labor practice by virtue of (1) its discussion of a statutory unfair labor practice and (2) its holding that the arbitration is precluded by the filing of a previous statutory unfair labor practice charge. In our view, the Authority’s decision in OEA “necessarily implicates” a statutory unfair labor practice, within the meaning of Judge Kennedy's opinion for the court in Marshals Service, 708 F.2d at 1420. There obviously can be no dispute that the Authority’s decision expressly referred to a statutory unfair labor practice. But this reference was no mere citation in passing to the unfair labor practice provision, section 7116(a). To the contrary, the Authority was required to make a detailed assessment of the precise nature of a statutory unfair labor practice charge, and then to compare the substance of that charge with the substance of the grievance before the arbitrator. After doing so, the Authority expressly concluded that the two were identical. Indeed, the FLRA was obliged so to conclude in order to decide that the arbitrator’s award was contrary to law. See 5 U.S.C. § 7116(d); cf. id. § 7122(a)(1) (Authority may set aside an arbitral award that is “contrary to any law”). This sort of substantive evaluation of a statutory unfair labor practice abundantly suffices to satisfy the relatively imprecise “involves” standard of section 7123(a)(1). Perhaps recognizing this, the Authority argues for tightening up the standard. Specifically, the Authority contends that section 7123(a)(1) requires that the FLRA decision address “on the merits” a statutory unfair labor practice, Brief for the FLRA in No. 85-1420 at 20, and that its consideration of the statutory unfair labor practice in OEA does not satisfy this “on the merits” test. But this reading" }, { "docid": "14550581", "title": "", "text": "primary issue OEA presents on the merits. . Petitioner’s primary argument is that the FLRA’s interpretation of section 7116(d) was in error because the voluntary dismissal of a statutory unfair labor practice complaint means that the issue in the complaint has not been \"raised” as an unfair labor practice. Given that the agency’s reading of the statute, to which we owe substantial deference, see Bureau of Alcohol, Tobacco & Firearms v. FLRA, 464 U.S. 89, 104 S.Ct. 439, 78 L.Ed.2d 195 (1983), seems at first glance clearly in line with the ordinary reading of \"raised,\" we are reluctant casually to overturn the FLRA’s interpretation. We need not address this issue, however, due to the much narrower, fact-based error discussed in the text, which requires remanding this case to the Authority. We also need not address at this juncture the arbitrator’s conclusion (and Schussel’s contention before this court) that the statutory unfair labor practice charge and the grievance involved different parties. DAVIS, Circuit Judge, concurring in the judgment in part and dissenting in part: I agree with the result in No. 85-1420, Overseas Education Association, et al. (OEA), but my reasoning, both on jurisdiction and as to the merits, differs from that of the majority. In No. 85-1753, National Treasury Employees Union (NTEU), I would hold that this court has jurisdiction and therefore I go on to discuss the merits. L Jurisdiction The Federal Labor Relations Authority (Authority or FLRA) filed motions to dismiss in both cases on the ground that this court lacks subject matter jurisdiction over the petitions for review under § 7123 of the Federal Service Labor-Management Relations Act. That provision, which sets forth the exclusive scheme for judicial review of FLRA orders, declares in pertinent part: (a) Any person aggrieved by any final order of the Authority other than an order under— (1) section 7122 of this title (involving an award of an arbitrator), unless the order involves an unfair labor practice under section 7118 of this title * * * *, may, during the 60-day period beginning on the date on which the order was issued," }, { "docid": "14550598", "title": "", "text": "in that case — that the Back Pay Act permits a back pay award to affected employees of an agency that has failed to engage in “impact and implementation” bargaining, so long as the employees meet the initial burden of establishing a causal nexus between the violation and the loss of pay — should dictate disposition of the NTEU case. I would remand to the FLRA for reconsideration of whether the union has met its burden of establishing a causal nexus between the failure to engage in “impact and implementation” bargaining and the CPOs’ loss of pay. On the remand I would direct, the FLRA should of course be mindful of the admonition in Professional Airways Sys. Specialists that, in applying its “but for” test, the Authority is obliged to recognize the value, fundamental in law and common sense, of procedural integrity; specifically, the Authority must allow for the fact that it is, in the nature of things, highly difficult for an adversely affected employee to establish that bargaining which never occurred (by virtue of the employer-agency’s violation) would have prevented the loss of pay occasioned by the change. 809 F.2d at 859. . As the court's opinion points out, the reference to \"section 7118” is a misprint. The correct reference is to section 7116 which sets forth unfair labor practices under the statute. American Fed'n of Gov't Employees v. FLRA, 675 F.2d 612, 613 n. 2 (4th Cir.1982). . I do not forget that in this Act Congress stated that collective bargaining \"safeguards the public interest\" and \"contributes to the effective conduct of public business.\" 5 U.S.C. § 7101(a). Congress also provided expressly for arbitration under collective bargaining agreements. 5 U.S.C. §§ 7121(a)(1) and 7121(b)(2)(b). There is no indication in the legislative history that arbitrators’ decisions involving \"unfair labor practices” are to be treated differently depending on the source of the \"unfair labor practice.” The legislative history of § 7123(a) throws little light on the precise coverage of cases in which the FLRA order \"involves an unfair labor practice under section 711 [6] of this title,” but I am" }, { "docid": "23247180", "title": "", "text": "to construe. For lack of jurisdiction, the appeal is DISMISSED. . Section 7123(a) provides: (a) Any person aggrieved by any final order of the Authority other than an order under— (1) section 7122 of this title (involving an award of an arbitrator), unless the order involves an unfair labor practice under section 7118 of this title, or (2) section 7112 of this title (involving an appropriate unit determination), may, during the 60-day period beginning on the date on which the order was issued, institute an action for judicial review of the Authority’s order in the United States court of appeals in the circuit in which the person resides or transacts business or in the United States Court of Appeals for the District of Columbia. . Section 7122 provides: (a) Either party to arbitration under this chapter may file with the Authority an exception to any arbitrator’s award pursuant to the arbitration (other than an award relating to a matter described in section 7121(f) of this title). If upon review the Authority finds that the award is deficient— (1) because it is contrary to any law, rule, or regulation; or (2) on other grounds similar to those applied by Federal courts in private sector labor-management relations; the Authority may take such action and make such recommendations concerning the award as it considers necessary, consistent with applicable laws, rules, or regulations. (b) If no exception to an arbitrator’s award is filed under subsection (a) of this section during the 30-day period beginning on the date of such award, the award shall be final and binding. An agency shall take the actions required by an arbitrator’s final award. The award may include the payment of backpay (as provided in section 5596 of this title). . Section 7121 provides in relevant part: (a)(1) Except as provided in paragraph (2) of this subsection, any collective bargaining agreement shall provide procedures for the settlement of grievances, including questions of arbitrability. Except as provided in subsections (d) and (e) of this section, the procedures shall be the exclusive procedures for resolving grievances which fall within its coverage." }, { "docid": "14550573", "title": "", "text": "“in the capacity of a representative for a labor organization.” No. 85-1420 J.A. at 26. The grievance, in contrast, was filed in March 1982, after Schussel had received a notice of reduction in force, informing him that he would be dismissed. Accordingly, his grievance complained of “improper dismissal from the Federal Service.” No. 85-1420 J.A. at 28. Thus, the situation facing Schussel, and the corresponding actions being taken against him, were quite different when he filed the grievance than was the case when the unfair labor practice charge was filed. Whereas in late 1981 the agency was only eliminating a particular position at one high school in the vast DODDS system, by early 1982 the employee was facing the prospect of outright termination. In addition, the grievance presented an alleged violation of the collective bargaining agreement, while the unfair labor practice charge concerned a statutory violation. It would be strange indeed, in light of Marshals Service and the cases following in its wake, to contend that the two present the identical issue. Since the issue in the two proceedings was not the same (either in terms of the factual predicate or the legal framework), section 7116 (d) never came into play. The Authority’s invocation of that provision was therefore in error. Accordingly, we remand OEA to the FLRA for further proceedings consistent with this opinion. It is so ordered. . A decision by the General Counsel not to issue a complaint pursuant to section 7118(a)(1) is not subject to judicial review. See Turgeon v. FLRA, 677 F.2d 937 (D.C.Cir.1982). . The statute actually refers to section 7118, not section 7116. The reference to section 7118, however, has been recognized to be an error; the correct reference is to section 7116. See AFGE, Local 1923 v. FLRA, 675 F.2d 612, 613 n. 2 (4th Cir.1982). Section 7123(a) reads in its entirety as follows: (a) Any person aggrieved by any final order of the Authority other than an order under— (1) section 7122 of this title (involving an award of an arbitrator), unless the order involves an unfair labor practice under section" } ]

[ { "docid": "22268588", "title": "", "text": "U.S.C.] § 1825(b)(2) to protect the mortgage interests of the FDIC violates the TIA because it suspends the collection of taxes under state law until the FDIC consents to foreclosure of the tax liens. Withholding consent to foreclose from a private citizen does not implicate the assessment, levy, or collection of any tax. The statute is intended to prevent interference with taxation by governmental entities; however, upon the sale of the tax certificate, the tax obligation is satisfied. The holder’s inability to foreclose does not affect the governmental entity’s ability to assess, levy, or collect any tax, and thus, the TIA is not applicable. Id. We believe Simon is inapposite here, as it involved an entirely different federal statute (the TIA) with different underlying purposes. . The FDCPA’s definition of \"creditor” is \"any person who offers or extends credit creating a debt or to whom a debt is owed, but such term does not include any person to the extent that he receives an assignment or transfer of a debt in default solely for the purpose of facilitating collection of such debt for another.” 15 U.S.C. § 1692a(4). The def inition of \"debt collector\" excludes \"any person collecting or attempting to collect any debt owed or due or asserted to be owed or due another to the extent such activity ... (iii) concerns a debt which was not in default at the time it was obtained by such person.” 15 U.S.C. § 1692a(6)(F). . Defendants’ motion for summary judgment before the district court stated that \"NTF exists solely for the purpose of holding claims for delinquent taxes and municipal obligations.” App. at 135. Further, an affidavit of a CARC officer provides that \"NTF purchases liens and claims from municipal entities across the country” and it refers to “the delinquent liens and claims [NTF] owns.” App. at 514. . As we have indicated, NTF meets the definition of “debt collector.” It is clear that CARC meets the definition as well. An affidavit of a CARC officer states that \"NTF does not service or collect the ... claims it owns,” but instead" } ]

[ { "docid": "5087744", "title": "", "text": "Jara’s claim: He does not, and cannot, sufficiently allege that Aurora was a “debt collector.” To be held liable for violation of the FDCPA, a defendant must fall within the FDCPA’s definition of “debt collector.” See Heintz v. Jenkins, 514 U.S. 291, 294, 115 S.Ct. 1489, 131 L.Ed.2d 395 (1995); see also Romine v. Diversified Collection Servs., 155 F.3d 1142, 1146 (9th Cir.1998). The court previously explained that a “debt collector” is defined, in relevant part, as: any person who uses any instrumentality of interstate commerce or the mails in any business the principal purpose of which is the collection of any debts, or who regularly collects or attempts to collect, directly or indirectly, debts owed or due or asserted to be owed or due another.... [T]he term includes any creditor who, in the process of collecting his own debts, uses any name other than his own which would indicate that a third person is collecting or attempting to collect such debts. For the purpose of section 1692f(6) of this title, such term also includes any person who uses any instrumentality of interstate commerce or the mails in any business the principal purpose of which is the enforcement of security interests. 15 U.S.C. § 1692a(6). “The term does not include,” however, “any person collecting or attempting to collect any debt owed or due or asserted to be owed or due another to the extent such activity ... concerns a debt which was originated by such person [or] ... concerns a debt which was not in default at the time it was obtained by such person.” 15 U.S.C. § 1692a(6)(F)(iii) & (iii). Indeed, “[t]he legislative history of section 1692a(6) indicates conclusively that a debt collector does not include the consumer’s creditors, a mortgage servicing company, or an assignee of a debt, as long as the debt was not in default at the time it was assigned.” Perry v. Stewart Title Co., 756 F.2d 1197, 1208 (5th Cir.1985) (citing S.Rep. No. 95-382, 95th Cong., 1st Sess. 3, reprinted in 1977 U.S.Code Cong. & Ad. News 1695,1698; Kizer v. Finance America Credit Corp.," }, { "docid": "23500524", "title": "", "text": "debts, or who regularly collects or attempts to collect, directly or indirectly, debts owed or due or asserted to be owed or due another.” 15 U.S.C. § 1692a(6). Creditors who use names other than their own — such as a third-party name — to collect on their own debts also qualify as debt collectors under the Act. See id. Exempted from the definition of a debt collector, however, is any person collecting or attempting to collect any debt owed or due or asserted to be owed or due another to the extent such activity ... (ii) concerns a debt which was originated by such person ... [or] (iii) concerns a debt which was not in default at the time it was obtained by such person. 15 U.S.C. § 1692a(6)(F)(ii), (iii). Finally, a “creditor” is “any person who offers or extends credit creating a debt or to whom a debt is owed....” 15 U.S.C. § 1692a(4). As the Fifth Circuit has concluded, “[t]he legislative history of section 1692a(6) indicates conclusively that a debt collector does not include the consumer’s creditors .... ” Perry v. Stewart Title Co., 756 F.2d 1197, 1208 (5th Cir.1985) (internal quotation marks and citation omitted); see also Wadlington v. Credit Acceptance Corp., 76 F.3d 103, 106 (6th Cir.1996) (quoting Perry with approval for this proposition). Based on the foregoing, it is clear that under the circumstances of this case, Huntington Bank is not a “debt col lector” subject to liability under the FDCPA. First, Huntington Bank falls within the exemption contained in § 1692a(6)(F)(ii) because by retaining Silver Shadow to repossess the BMW that served as collateral for the car loan to Smith, it was collecting or attempting to collect on a debt that was owed, due, or asserted to be owed or due, and that originated with it. See, e.g., Thomasson v. Bank One, 137 F.Supp.2d 721, 724 (E.D.La.2001) (finding that “[i]n collecting on its own debts [through use of a third party or a subsidiary agent], [the] Bank ... does not meet the criteria of a ‘debt collector’ pursuant to [§ 1692a(6)(F) of] the FDCPA”);" }, { "docid": "23265049", "title": "", "text": "such debts. For the purpose of section 1692f(6) of this title, such term also includes any person who uses any instrumentality of interstate commerce or the mails in any business the principal purpose of which is the enforcement of security interests. The term does not include— (A) any officer or employee of a creditor while, in the name of the creditor, collecting debts for such creditor; (B) any person while acting as a debt collector for another person, both of whom are related by common ownership or affiliated by corporate control, if the person acting as a debt collector does so only for persons to whom it is so related or affiliated and if the principal business of such person is not the collection of debts; (C) any officer or employee of the United States or any State to the extent that collecting or attempting to collect any debt is in the performance of his official duties; (D) any person while serving or attempting to serve legal process on any other person in connection with the judicial enforcement of any debt; (E) any nonprofit organization which, at the request of consumers, performs bona fide consumer credit counseling and assists consumers in the liquidation of their debts by receiving payments from such consumers and distributing such amounts to creditors; (F) any attomey-at-law collecting a debt as an attorney on behalf of and in the name of a client; and (G) any person collecting or attempting to collect any debt owed or due or asserted to be owed or due another to the extent such activity (i) is incidental to a bona fide fiduciary obligation or a bona fide escrow arrangement; (ii) concerns a debt which was originated by such person; (iii) concerns a debt which was not in default at the time it was obtained by such person; or (iv) concerns a debt obtained by such person as a secured party in a commercial credit transaction involving the creditor. 15 U.S.C. § 1692a(6)." }, { "docid": "12480815", "title": "", "text": "debt was owed or due to ED, not USA Funds. Even though the assignment to ED was conditional and temporary, it was an assignment nevertheless. Thus, for purposes of sending the notices the debt was owed or due to another, and USA Funds meets the general definition of a debt collector set forth in section 1692a(6). USA Funds argues that even if it is a debt collector under the general definition of section 1692a(6), one or more of the exceptions to the general definition apply. The Act lists six exceptions, of which three are relevant to this case: The term [debt collector] does not include— (A) any officer or employee of a creditor while, in the name of the creditor, collecting debts for such creditor; (C) any officer or employee of the United States or any State to the extent that collecting or attempting to collect any debt is in the performance of his official duties; (F) any person collecting or attempting to collect any debt owed or due or asserted to be owed or due another to the extent such activity (i) is incidental to a bona fide fiduciary obligation or a bona fide escrow arrangement; (ii) concerns a debt which was originated by such person; (iii) concerns a debt which was not in default at the time it was obtained by such person; .... 15 U.S.C.A. § 1692a(6)(A), (C) & (F). USA Funds argues that it is a creditor and thus excluded from coverage under the Act by section 1692a(6)(A) above. The Act defines a “creditor” as: [A]ny person who offers or extends credit creating a debt or to whom a debt is owed, but such term does not include any person to the extent that he receives an assignment or transfer of a debt in default solely for the purpose of facilitating collection of such debt for another. 15 U.S.C.A. § 1692a(4). For purposes of sending the notices, USA Funds is not a creditor. Although it may have guaranteed the loan, it did not offer or extend credit. The regulations specifically define “lender” for purposes of the" }, { "docid": "4424878", "title": "", "text": "debt which was not in default at the time it was obtained by such person; or (iv) concerns a debt obtained by such person as a secured party in a commercial credit transaction involving the creditor. 15 U.S.C. § 1692a(6). It is well-settled that provisions of the FDCPA generally apply only to debt collectors. Pollice v. National Tax Funding, L.P. 225 F.3d 379 (3d Cir.2000). And, creditors are not liable under the FDCPA. Perry v. Stewart Title Co., 756 F.2d 1197 (5th Cir.1985), modified on other grounds, 761 F.2d 237 (5th Cir.1985) (Debt collector does not include consumer’s creditors, mortgage servicing company, or assignee of debt, as long as debt was not in default at time it was assigned). A “creditor” is “any person who offers or extends credit creating a debt or to whom a debt is owed, but such term does not include any person to the extent that he receives an assignment or transfer of a debt in default solely for the purpose of facilitating collection of such debt for another.” 15 U.S.C. § 1692a(4). In Plaintiffs’ reply, they admit that “defendants may have created a disputed genuine issue of material fact by their assertion that they were not debt collectors within the meaning of FDCPA.” Plaintiffs’ Reply, p. 6. This is not an admission that a question of fact exists, but rather an admission that Defendants are not “debt collectors” within the meaning of the FDCPA. Plaintiffs also state in their reply that they “vigorously dispute the defendants’ assertions that mortgage # 1 was not delinquent in 1999 when Wells Fargo began servicing it for GE Capital, and that mortgage # 2 was not delinquent when Wells Fargo became its mortgagee.” Id. at. 7. Plaintiffs’ Complaint, however, states that they became delinquent on Mortgage # 1 and Mortgage # 2 in 2001 and requested from Wells Fargo an agreement to modify/restructure the loans. Complaint, p 6 ¶ 2. Plaintiffs’ averments in the Complaint notwithstanding, the law is well-settled (as discussed above) that creditors, mortgagors, and mortgage servicing companies are not debt collectors and are statutorily exempt" }, { "docid": "22302901", "title": "", "text": "the amount of 4% of the delinquent monthly installment should be characterized as interest for the purpose of determining the total interest for which the Perrys were liable. Since late charges of this nature do not involve the “use or forbearance or detention of money”, see Tex. Rev.Civ.Stat.Ann. art. 5069-1.01 (Vernon 1971), and instead are merely bona fide fees paid to third parties for servicing the late payments, they are not properly characterized as “interest”. See Rimco Enterprises, Inc. v. Texas Electric Service Co., 599 S.W.2d 362, 366 (Tex.Civ.App.—Port Worth 1980, writ ref’d n.r.e.). C. Federal Fair Debt Collection Practices Act and Texas Debt Collection Act Claims The Perrys claim that the trial court erred in granting Hammond’s and FNMA’s motions for directed verdicts on their claims under the Federal Fair Debt Collection Practices Act (FDCPA), 15 U.S.C. § 1692 (1982), and the Texas Debt Collection Act (TDCA), Tex.Rev.Civ.Stat.Ann. arts. 5069-11.01 to 5069-11.11 (Vernon Supp.1985). The FDCPA makes it unlawful for debt collectors to use abusive tactics while collecting debts for others. The FDCPA defines a debt collector as “any person ... who regularly collects or attempts to collect ... debts owed or due or asserted to be owed or due another.” 15 U.S.C. § 1692a(6). The term “debt collector” does not include: [A]ny person collecting or attempting to collect any debt owed or due or asserted to be owed or due another to the extent such activity ... (ii) concerns a debt which was originated by such person [or] (iii) concerns a debt which was not in default at the time it was obtained by such person. 15 U.S.C. § 1692a(6)(G). The legislative history of section 1692a(6) indicates conclusively that a debt collector does not include the consumer’s creditors, a mortgage servicing company, or an assignee of a debt, as long as the debt was not in default at the time it was assigned. See S.Rep. No. 95-382, 95th Cong., 1st Sess. 3, reprinted in 1977 U.S.Code Cong. & Ad.News 1695, 1698. See also Kizer v. Finance America Credit Corp., 454 F.Supp. 937, 939 (N.D. Miss.1978). In this case," }, { "docid": "19356552", "title": "", "text": "interstate commerce or the mails in any business the principal purpose of which is the enforcement of security interests. The term does not include— (A) any officer or employee of a creditor while, in the name of the creditor, collecting debts for such creditor; (B) any person while acting as a debt collector for another person, both of whom are related by common ownership or affiliated by corporate control, if the person acting as a debt collector does so only for persons to whom it is so related or affiliated and if the principal business of such person is not the collection of debts; (F) any person collecting or attempting to collect any debt owed or due or asserted to be owed or due another to the extent such activity (i) is incidental to a bona fide fiduciary obligation or a bona fide escrow arrangement; (ii) concerns a debt which was originated by such person; (iii) concerns a debt which was not in default at the time it was obtained by such person; or (iv) concerns a debt obtained by such person as a secured party in a commercial credit transaction involving the creditor. 15 U.S.C. § 1692a(6). To be liable for a violation of the FDCPA, the defendant must, as a threshold requirement, be a “debt collector” within the meaning of the FDCPA. Heintz v. Jenkins, 514 U.S. 291, 294, 115 S.Ct. 1489, 131 L.Ed.2d 395 (1995). Defendants argue that they are not “debt collectors” under the statute. The Court notes that— original lenders, creditors, mortgage servicing companies, and mortgage brokers generally do not qualify as “debt collectors.” See, e.g., Lyons v. Bank of Am., NA, 2011 WL 3607608, at *12 (N.D.Cal. Aug. 15, 2011) (“The FDCPA applies to those who collect debts on behalf of another; it does not encompass creditors who are collecting their own past due accounts.”); Radford v. Wells Fargo Bank, 2011 WL 1833020, at *15 (D.Haw. May 13, 2011) (collecting cases stating that original lenders and mortgage servicing companies are not “debt collectors”); Sakugawa v. IndyMac Bank, F.S.B., 2010 WL 4909574, at *5 (D.Haw." }, { "docid": "8525929", "title": "", "text": "reasonable attorney’s fees, and statutory “additional” damages. 15 U.S.C. § 1692k(a). Specifically, the Trevinos allege that Defendants violated 15 U.S.C. § 1692e(2) by misrepresenting the character and amount of the debt and § 1692(e)(5) by taking an action which could not legally be taken, i.e., filing a proof of claim for monies not owed. They allege further that Defendants violated § 1692f(l) by attempting to collect debts not authorized by the Note or Deed of Trust. Finally, the Trevinos allege that U.S. Bank and Caliber violated 15 U.S.C. § 1692e(12) by representing to the court that they were innocent purchasers for value. a. HSBC Is a Debt Collector Under the FDCPA HSBC argues that the Trevino’s FDCPA claims must fail because it cannot qualify as a debt collector within the meaning of the statute. The statute defines the term debt collector, in part, as: [A]ny person who uses any instrumentality of interstate commerce or the mails in any in any business the principal purpose of which is the collection of debts, or who regularly collects or attempts to collect, directly or indirectly, debts owed of due or asserted to be owed or due another.... The term does not include— (F) any person collecting or attempting to collect any debt owed or due or asserted to be owed or due another to the extent such activity ... (iii) concerns a debt which was not in default at the time it was obtained by such person. 15 U.S.C. § 1692a(6). “The legislative his-. tory of § 1692a(6) indicates conclusively that a debt collector does not include the consumer’s creditors, a mortgage servicing company, or an assignee of a debt, as long as the debt was not in default at the time it was assigned.” Perry v. Stewart Title Co., 756 F.2d 1197, 1208 (5th Cir.1985). As a mortgage servicing company, HSBC would not qualify as a debt collector if it obtained the note from Crevecor Mortgage, Inc. while it was not in default. The Second Amended Complaint states “[o]n information and belief, Defendant HSBC acquired the loan and/or the servicing rights on" }, { "docid": "12924423", "title": "", "text": "true owner of the note. A threshold issue is whether ASC is a debt collector within the meaning of the FDCPA. “It is well-settled that provisions of the FDCPA generally apply only to debt collectors,” Scott v. Wells Fargo Home Mortg. Inc., 326 F.Supp.2d 709, 717 (E.D.Va.2003) (citing Pollice v. National Tax Funding, L.P. 225 F.3d 379 (3d Cir.2000)) but not creditors. Id. (citing Perry v. Stewart Title Co., 756 F.2d 1197 (5th Cir.1985), modified on other grounds, 761 F.2d 237 (5th Cir.1985)) (holding that a debt collector does not include creditors, mortgage servicing companies, or assignees of debt, provided the debt was not in default when it was assigned). See also Schmitt v. FMA Alliance, 398 F.3d 995 (8th Cir.2005) (“ ‘A distinction between creditors and debt collectors is fundamental to the FDCPA, which does not regulate creditors’ activities at all.’ ”) (quoting Randolph v. IMBS, Inc., 368 F.3d 726, 729 (7th Cir.2004)); Montgomery v. Huntington Bank, 346 F.3d 693, 699 (6th Cir.2003) (“... the federal courts are in agreement: A bank that is ‘a creditor is not a debt collector for the purposes of the FDCPA and creditors are not subject to the FDCPA when collecting their accounts.’ ”) (quoting Stafford v. Cross Country Bank, 262 F.Supp.2d 776, 794 (W.D.Ky.2003)). A “creditor,” for purposes of the FDCPA, is defined as “any person who offers or extends credit creating a debt or to whom a debt is owed, but such term does not include any person to the extent that he receives an assignment or transfer of a debt in default solely for the purpose of facilitating collection of such debt for another.” 15 U.S.C. § 1692a(4). The FDCPA defines a “debt collector” as “any person ... who regularly collects or attempts to collect, directly or indirectly, debts owed or due or asserted to be owed or due another.” 15 U.S.C. § 1692a(6). The definition of “debt collector” excludes: “any person collecting or attempting to collect any debt owed or due or asserted to be owed or due another to the extent such activity ... (iii) concerns a debt" }, { "docid": "10804956", "title": "", "text": "or attempting to collect any debt owed or due or asserted to be owed or due another to the extent such activity (i) is incidental to a bona fide fiduciary obligation or a bona fide escrow arrangement; ... [or] (iii) concerns a debt which was not in default at the time it was obtained by such person.... 15 U.S.C. § 1692a(6). We note, as other circuits have, that “as to a specific debt, one cannot be both a ‘creditor’ and a ‘debt collector,’ as defined in the FDCPA, because those terms are mutually exclusive.” FTC v. Check Investors, Inc., 502 F.3d 159, 173 (3d Cir.2007) (citing Schlosser v. Fairbanks Capital Corp., 323 F.3d 534, 536 (7th Cir.2003)); cf. Montgomery v. Huntington Bank, 346 F.3d 693, 698 (6th Cir.2003) (holding the definition of debt collector “does not include the consumer’s creditors”). If an entity which acquires a debt and seeks to collect it cannot be both a creditor and a debt collector, can it be neither? We answer no. To allow such an entity to define itself out of either category would mean that the intended protection of the FDCPA is unavailable. Both the statutory language and legislative history of the FDCPA establish that such an entity is either a creditor or a debt collector and its collection activities are covered under the FDCPA accordingly. The distinction between a creditor and a debt collector lies precisely in the language of § 1692a(6)(F)(iii). For an entity that did not originate the debt in question but acquired it and attempts to collect on it, that entity is either a creditor or a debt collector depending on the default status of the debt at the time it was acquired. The same is true of a loan servicer, which can either stand in the shoes of a creditor or become a debt collector, depending on whether the debt was assigned for servicing before the default or alleged default occurred. Wadlington v. Credit Acceptance Corp., 76 F.3d 103, 106-8 (6th Cir. 1996); see also Perry v. Stewart Title Co., 756 F.2d 1197, 1208 (5th Cir.1985). This" }, { "docid": "12924424", "title": "", "text": "‘a creditor is not a debt collector for the purposes of the FDCPA and creditors are not subject to the FDCPA when collecting their accounts.’ ”) (quoting Stafford v. Cross Country Bank, 262 F.Supp.2d 776, 794 (W.D.Ky.2003)). A “creditor,” for purposes of the FDCPA, is defined as “any person who offers or extends credit creating a debt or to whom a debt is owed, but such term does not include any person to the extent that he receives an assignment or transfer of a debt in default solely for the purpose of facilitating collection of such debt for another.” 15 U.S.C. § 1692a(4). The FDCPA defines a “debt collector” as “any person ... who regularly collects or attempts to collect, directly or indirectly, debts owed or due or asserted to be owed or due another.” 15 U.S.C. § 1692a(6). The definition of “debt collector” excludes: “any person collecting or attempting to collect any debt owed or due or asserted to be owed or due another to the extent such activity ... (iii) concerns a debt which was not in default at the time it was obtained by such person; ...” 15 U.S.C. § 1692a(6)(F)(iii). Based on this exception to the definition of debt collector, it has been consistently held that the FDCPA’s restrictions do not apply to mortgage servicing companies unless “the mortgage at issue was already in default at the time when servicing began.” Dawson v. Dovenmuehle Mortgage, Inc., 2002 WL 501499, *5 (E.D.Pa.2002) (citing Perry v. Stewart Title Co., 756 F.2d 1197, 1208 (5th Cir.1985)). See also Ricotta v. Ocwen Loan Servicing, LLC, 2008 WL 516674, *6 (D.Colo.2008) (“[The § 1692a(6)(F)(iii) ] exception is apparently intended to exempt from the FDCPA’s requirements persons who acquire a debt for reasons other than for delinquency-based debt-collection purposes.”); Quinn v. Ocwen Federal Bank, FSB, 2006 WL 4495659 (E.D.Ark.2006) aff'd, 470 F.3d 1240 (8th Cir.2006) (Court found that FDCPA did not apply to servi-cer where mortgage was not in default at the time servicer began servicing the mortgage.); Zlupko v. Washington Mut. Bank, 2004 WL 2297400, n. 2 (E.D.Pa.2004) (“Mortgage lenders and" }, { "docid": "9880658", "title": "", "text": "consumers and distributing such amounts to creditors; (F) any attorney-at-law collecting a debt as an attorney on behalf of and in the name of a client; and (G) any person collecting or attempting to collect any debt owed or due or asserted to be owed or due another to the extent such activity (i) is incidental to a bona fide fiduciary obligation or a bona fide escrow arrangement; (ii) concerns a debt which was originated by such person; (iii) concerns a debt which was not in default at the time it was obtained by such person; or (iv) concerns a debt obtained by such person as a secured party in a commercial credit transaction involving the creditor. 15 U.S.C. § 1692a(6). The Senate Report explains what Congress intended by the definition and the exclusions: The committee intends the term “debt collector,” subject to the exclusions discussed below, to cover all third persons who regularly collect debts for others. The primary persons intended to be covered are independent debt collectors. The requirement that debt collection be done “regularly” would exclude a person who collects a debt for another in an isolated instance, but would include those who collect for others in the regular course of business. The definition would include “reciprocal collections” whereby one creditor regularly collects delinquent debts for another pursuant to a reciprocal service agreement, unless otherwise excluded by the act. The term debt collector is not intended to include the following: “in house” collectors for creditors so long as they use the creditor’s true business name when collecting; Government officials, such as marshals and sheriffs, while in the conduct of their official duties; process servers; nonprofit consumer credit counsel ing services which assist consumers by apportioning the consumer’s income among his creditors pursuant to a prior arrangement; and attorneys-at-law while acting in that capacity. One subsidiary or affiliate which collects debts for another subsidiary or affiliate is not a “debt collector” so long as the collecting affiliate collects only for other related entities and its principal business is not debt collection. Finally, the committee does not intend the" }, { "docid": "13428670", "title": "", "text": "of TILA and the Fair Debt Collection Practices Act (“FDCPA”) constitute violations of the UCL. Plaintiffs formally stated TILA claims in counts one and two. Plaintiffs formally stated an FDCPA claim in the original complaint, but not in the FAC. See Doc. 1, Complaint, at 9:11-21. As discussed above, the TILA claims have been dismissed. Greenpoint argues that Plaintiffs can not state an FDCPA claim as Greenpoint is not subject to FDCPA coverage. The FDCPA provides for civil suit against “any debt collector who fails to comply with any provision of this title.” 15 U.S.C. § 1692k. The term “debt collector” has been defined as any person who uses any instrumentality of interstate commerce or the mails in any business the principal purpose of which is the collection of any debts, or who regularly collects or attempts to collect, directly or indirectly, debts owed or due or asserted to be owed or due another.... The term does not include ... (F) any person collecting or attempting to collect any debt owed or due or asserted to be owed or due another to the extent such activity (i) is incidental to a bona fide fiduciary obligation or a bona fide escrow arrangement; (ii) concerns a debt which was originated by such person; (iii) concerns a debt which was not in default at the time it was obtained by such person; or (iv) concerns a debt obtained by such person as a secured party in a commercial credit transaction involving the creditor. 15 U.S.C. § 1692a(6), emphasis added. Thus, as originating lender of the refinance of the Property, Greenpoint appears to fall under 15 U.S.C. § 1692a(6)(F)(ii). IV. Order Defendant Greenpoint’s motion to dismiss is GRANTED. Plaintiffs’ First Amended Complaint is DISMISSED; Plaintiffs are granted leave to amend the first, third, and fourth causes of action, consistent with the analysis of this order. Any amended complaint must be filed within twenty-one (21) days of the filing of this order. IT IS SO ORDERED. . The factual history is provided for background only and does not form the basis of the court's decision;" }, { "docid": "12480816", "title": "", "text": "due another to the extent such activity (i) is incidental to a bona fide fiduciary obligation or a bona fide escrow arrangement; (ii) concerns a debt which was originated by such person; (iii) concerns a debt which was not in default at the time it was obtained by such person; .... 15 U.S.C.A. § 1692a(6)(A), (C) & (F). USA Funds argues that it is a creditor and thus excluded from coverage under the Act by section 1692a(6)(A) above. The Act defines a “creditor” as: [A]ny person who offers or extends credit creating a debt or to whom a debt is owed, but such term does not include any person to the extent that he receives an assignment or transfer of a debt in default solely for the purpose of facilitating collection of such debt for another. 15 U.S.C.A. § 1692a(4). For purposes of sending the notices, USA Funds is not a creditor. Although it may have guaranteed the loan, it did not offer or extend credit. The regulations specifically define “lender” for purposes of the Guaranteed Student Loan Program. See 34 C.F.R. § 682.200. That definition does not encompass guarantee agencies, which are defined elsewhere in that subsection. Further, at the time the notices were sent, the debt was not owed to USA Funds. For purposes of sending the notices in question, USA Funds is not a creditor within the meaning of the Act. Even if USA Funds were considered a creditor under the definition set out in section 1692a(4), it falls under the exception for assignees. Section 1692a(4) excludes from the definition of creditor “any person to the extent that he receives an assignment or transfer of a debt in default solely for the purpose of facilitating collection of such debt for another.” The lender did not transfer title to the debt to USA Funds until after default. Had Games made timely payments, USA Funds would never have received title to the loan. It is clear, therefore, that Wilmington Trust Co. transferred the loan to USA Funds after default to facilitate collection. USA Funds also argues that it should" }, { "docid": "3506635", "title": "", "text": "the act, is one who: “offers or extends credit creating a debt or to whom a debt is owed, but such term does not include any person to the extent that he receives an assignment or transfer of a debt in default solely for the purpose of facilitating collection of such debt for another.” 15 U.S.C. § 1692a(4). The Act also outlines a number of exceptions to the generalized definition of “debt collector.” The definition of “debt collector” expressly states that the following are not “debt collectors” for the purposes of the FDCPA: (A) any officer or employee of a creditor while, in the name of the creditor, collecting debts for such creditor; (B) any person while acting as a debt collector for another person, both of whom are related by common ownership or affiliated by corporate control, if the person acting as a debt collector does so only for persons to whom it is so related or affiliated and if the principal business of such person is not the collection of debts; (C) any officer or employee of the United States or any state to the extent that collecting or attempting to collect any debt is in the performance of his official duties; (D) any person while serving or attempting to serve legal process or any other person in connection with the judicial enforcement of any debt; (E) any nonprofit organization which, at the request of consumers, performs bona fide consumer credit counseling and assists consumers in the liquidation of their debts by receiving payments from such consumers and distributing such amounts to creditors; (F)any person collecting or attempting to collect any debt owed or due or asserted to be owed or due another to the extent such activity (i) is incidental to a bona fide fiduciary obligation or a bona fide escrow arrangement; (ii) concerns a debt which was originated by such person; (iii) concerns a debt which was not in default at the time it was obtained by such person; or (iv) concerns a debt obtained by such person as a secured party in a commercial credit" }, { "docid": "14463878", "title": "", "text": "FDCPAJRFDCPA. The Complaint next alleges that Defendants engaged in abusive debt collection practices in violation of federal and state laws regulating debt collection. Compl. ¶¶ 34-49. FDCPA regulates only “debt collectors.” See 15 U.S.C. §§ 1692(e)-(f). “Debt collector” is defined as “any person who uses any instrumentality of interstate commerce or the mails in any business the principal purpose of which is the collection of any debts, or who regularly collects or attempts to collect, directly or indirectly, debts owed or due or asserted to be owed or due another.” § 1692a(6). “Debt Collector” does not include persons who collect debt “to the extent such activity ... (ii) concerns a debt which was originated by such person; [or] (iii) concerns a debt which was not in default at the time it was obtained by such person ....” § 1692a(6)(F). FDCPA’s definition of debt collector “does not include the consumer’s creditors, a mortgage servicing company, or any assignee of the debt, so long as the debt was not in default at the time it was assigned.” Perry v. Stewart Title Co., 756 F.2d 1197, 1208 (5th Cir.1985). Nothing in the complaint suggests that Barclays is a “debt collector.” Therefore, the FDCPA is not triggered by Plaintiffs allegations. The absence of a violation of FDCPA results in failure of Plaintiffs California RFDCPA claim, as the scope of California’s law mirrors the federal statute. See Cal. Civil Code, § 1788, et seq. Moreover, California Civil Code 2924(b) exempts the trustees’ acts of recording and servicing the required notice of default and notice of sale from RFDCPA’s scope. In the context of their unfair debt collection claims, Plaintiffs also allege that “none of Defendants have legal authority to enforce or collect on the Loan, as LENDER is not the note holder of said debt and can therefore not authorize TRUSTEE or any one else to enforce or collect thereon.” Compl. ¶ 43. This is a blatant misrepresentation of the law. It is well-established that non-judicial foreclosures can be commenced without producing the original promissory note. Nonjudicial foreclosure under deeds of trust is governed by" }, { "docid": "9880657", "title": "", "text": "quoted above, the Act provides: The term does not include— (A) any officer or employee of a creditor while, in the name of the creditor, collecting debts for such creditor; (B) any person while acting as a debt collector for another person, both of whom are related by common ownership •or affiliated by corporate control, if the person acting as a debt collector does so only for persons to whom it is so related or affiliated and if the principal business of such person is not the collection of debts; (C) any officer or employee of the United States or any State to the extent that collecting or attempting to collect any debt is in the performance of his official duties; (D) any person while serving or attempting to serve legal process on any other person in connection with the judicial enforcement of any debt; (E) any nonprofit organization which, at the request of consumers, performs bona fide consumer credit counseling and assists consumers in the liquidation of their debts by receiving payments from such consumers and distributing such amounts to creditors; (F) any attorney-at-law collecting a debt as an attorney on behalf of and in the name of a client; and (G) any person collecting or attempting to collect any debt owed or due or asserted to be owed or due another to the extent such activity (i) is incidental to a bona fide fiduciary obligation or a bona fide escrow arrangement; (ii) concerns a debt which was originated by such person; (iii) concerns a debt which was not in default at the time it was obtained by such person; or (iv) concerns a debt obtained by such person as a secured party in a commercial credit transaction involving the creditor. 15 U.S.C. § 1692a(6). The Senate Report explains what Congress intended by the definition and the exclusions: The committee intends the term “debt collector,” subject to the exclusions discussed below, to cover all third persons who regularly collect debts for others. The primary persons intended to be covered are independent debt collectors. The requirement that debt collection be" }, { "docid": "4424877", "title": "", "text": "be owed or due another. Notwithstanding the exclusion provided by clause (F) of the last sentence of this paragraph, the term includes any creditor who, in the process of collecting his own debts, uses any name other than his own which would indicate that a third person is collecting or attempting to collect such debts. For the purpose of section 808(6) [15 U.S.C. § 1692f(6)] such term also includes any person who uses any instrumentality of interstate commerce or the mails in any business the principal purpose of which is the enforcement of security interests. The term does not include— (A) any officer or employee of a creditor while, in the name of the creditor, collecting debts for such creditor; ... (F) any person collecting or attempting to collect any debt owed or due or asserted to be owed or due another to the extent such activity (i) is incidental to a bona fide fiduciary obligation or a bona fide escrow arrangement; (ii) concerns a debt which was originated by such person; (iii) concerns a debt which was not in default at the time it was obtained by such person; or (iv) concerns a debt obtained by such person as a secured party in a commercial credit transaction involving the creditor. 15 U.S.C. § 1692a(6). It is well-settled that provisions of the FDCPA generally apply only to debt collectors. Pollice v. National Tax Funding, L.P. 225 F.3d 379 (3d Cir.2000). And, creditors are not liable under the FDCPA. Perry v. Stewart Title Co., 756 F.2d 1197 (5th Cir.1985), modified on other grounds, 761 F.2d 237 (5th Cir.1985) (Debt collector does not include consumer’s creditors, mortgage servicing company, or assignee of debt, as long as debt was not in default at time it was assigned). A “creditor” is “any person who offers or extends credit creating a debt or to whom a debt is owed, but such term does not include any person to the extent that he receives an assignment or transfer of a debt in default solely for the purpose of facilitating collection of such debt for another.” 15" }, { "docid": "3506636", "title": "", "text": "officer or employee of the United States or any state to the extent that collecting or attempting to collect any debt is in the performance of his official duties; (D) any person while serving or attempting to serve legal process or any other person in connection with the judicial enforcement of any debt; (E) any nonprofit organization which, at the request of consumers, performs bona fide consumer credit counseling and assists consumers in the liquidation of their debts by receiving payments from such consumers and distributing such amounts to creditors; (F)any person collecting or attempting to collect any debt owed or due or asserted to be owed or due another to the extent such activity (i) is incidental to a bona fide fiduciary obligation or a bona fide escrow arrangement; (ii) concerns a debt which was originated by such person; (iii) concerns a debt which was not in default at the time it was obtained by such person; or (iv) concerns a debt obtained by such person as a secured party in a commercial credit transaction involving the creditor. 15 U.S.C.A. § 1692a(6). Despite the lengthy definition, courts have had difficulty in some cases determining when an entity should be considered a “debt collector.” IY. Legal Arguments Defendant ECMC contends that it is excluded from the definition of “debt collector” because, under § 1692a(6)(A), it is a “creditor” seeking to recover on its own debt, because it is a “government actor” as excepted in (6)(C), above, and because of the exception in (6)(F)(i) for those acting under a “bona fide fiduciary obligation.” ECMC also contends that the regulations established by the FFELP for guaranty agencies are inconsistent with the demands made of “debt collectors” under the FDCPA and that the FDCPA should, therefore, not apply to guaranty agencies, such as itself, operating under the FFELP. Pelfrey maintains that ECMC is subject to the FDCPA. She asserts that the FDCPA was intended to apply to private nonprofit guaranty agencies operating within their own discretion, even if contractually bound to follow DOE regulations, and that ECMC is, in fact, nothing more than" }, { "docid": "22302902", "title": "", "text": "a debt collector as “any person ... who regularly collects or attempts to collect ... debts owed or due or asserted to be owed or due another.” 15 U.S.C. § 1692a(6). The term “debt collector” does not include: [A]ny person collecting or attempting to collect any debt owed or due or asserted to be owed or due another to the extent such activity ... (ii) concerns a debt which was originated by such person [or] (iii) concerns a debt which was not in default at the time it was obtained by such person. 15 U.S.C. § 1692a(6)(G). The legislative history of section 1692a(6) indicates conclusively that a debt collector does not include the consumer’s creditors, a mortgage servicing company, or an assignee of a debt, as long as the debt was not in default at the time it was assigned. See S.Rep. No. 95-382, 95th Cong., 1st Sess. 3, reprinted in 1977 U.S.Code Cong. & Ad.News 1695, 1698. See also Kizer v. Finance America Credit Corp., 454 F.Supp. 937, 939 (N.D. Miss.1978). In this case, the FDCPA is inapplicable, since neither Hammond nor FNMA is a debt collector. Hammond sold the Perry loan to FNMA approximately IV2 months after the closing and approximately 2 months before the Perrys were in default. After Hammond sold the loan, it continued to service the loan for FNMA. Thus, FNMA was a bona fide assignee of a debt, and Hammond was a bona fide mortgage servicing company. The district court correctly granted Hammond’s and FNMA’s motions for directed verdicts on this claim. The Perrys also argue that the district court improperly granted Hammond’s and FNMA’s motions for directed verdicts for the alleged violations of the TDCA. As an initial matter, there is no dispute that Hammond and FNMA fall within the broader definition of a debt collector under the TDCA. See Tex.Rev.Civ.Stat.Ann. art. 5069-11.01(c) (“ ‘Debt collector’ means any person engaging directly or indirectly in debt collection”). Article 5069-11.03 makes it unlawful for an unidentified debt collector using a telephone to call the debt- or “with the willful intent to annoy or harass or" } ]

[ { "docid": "23503809", "title": "", "text": "legally be taken or that is not intended to be taken” violates the FDCPA. . Zimmerman involved a cable signal theft — a tort that the court held did not constitute a \"transaction” under the FDCPA because nothing in the Act equated tort liability with consumer debt. Only in further dicta did the Third Circuit opine that the type of transaction the FDCPA addresses is the same type of transaction as \"in all other subchapters of the Consumer Credit Protection Act, i.e., one involving the offer or extension of credit to a consumer.” Id. at 1168. At least four other circuits have disavowed Zimmerman ’s dicta. See Duffy v. Landberg, 133 F.3d 1120, 1123-24 (8th Cir.), cert. denied, - U.S. -, 119 S.Ct. 62, 142 L.Ed.2d 49 (1998); Brown v. Budget Rent-A-Car, 119 F.3d 922, 924 n. 1 (11th Cir.1997); Charles v. Lundgren & Assocs., P.C., 119 F.3d 739, 741-42 (9th Cir.), cert. denied, — U.S.--, 118 S.Ct. 627, 139 L.Ed.2d 607 (1997); Bass v. Stolper, Koritzinsky, Brewster & Neider, S.C., 111 F.3d 1322 (7th Cir.1997). . See Snow v. Jesse L. Riddle, P.C., 143 F.3d 1350, 1353 (10th Cir.1998) (holding that under a \"plain meaning\" interpretation of the FDCPA, \" ‘debt’ is created where one obtain[s] goods and gives a dishonored check in return therefor”); Duffy, 133 F.3d at 1123-24 (holding that a dishonored check constitutes debt because it evidences the check writer’s failure to fulfill an obligation arising out of a \"consensual transaction for goods or services’’); Charles, 119 F.3d at 741-42 (holding that \"a dishonored check is a 'debt' within the meaning of the FDCPA”); Bass, 111 F.3d at 1322 (finding that the plain meaning • and legislative history of the FDCPA do not limit the meaning of \"debt” to an offer or extension of credit but instead extend to any obligation arising out of a consensual consumer transaction); see also Emanuel v. American Credit Exch., 870 F.2d 805 (2d Cir.1989) (assuming, without directly deciding, that past rent is a debt under the FDCPA). . Under the FDCPA, a \"debt collector” is defined as any person who" } ]

[ { "docid": "3580944", "title": "", "text": "obligation, as the Third Circuit determined in Zimmerman. See 834 F.2d at 1168-69. The district court followed Zimmerman and the weight of lower court authority in concluding that it did. Riter, 932 F.Supp. at 212. From that premise, the court reasoned that the Riters’ obligation to pay past-due assessments to their homeowners association did not involve an offer or extension of credit, or a deferred payment obligation. Id. But after we heard argument in these appeals, another panel of this court expressly rejected Zimmerman’s “credit” requirement and held that “an offer or extension of credit is not required for a payment obligation to constitute a ‘debt’ under the FDCPA.” Bass v. Stolper, Koritzinsky, Brewster & Neider, S.C., 111 F.3d 1322, 1326 (7th Cir.1997). All that is required under Bass is a transaction creating an obligation to pay. Id. at 1325. Based upon that understanding, the Bass panel concluded that the payment obligation arising from a dishonored check qualifies as a “debt” under the Act. Id.; see also Ryan v. Wexler & Wexler, 113 F.3d 91 (7th Cir.1997) (following Bass). To our knowledge, no federal court has yet concluded that the obligation to pay a condominium assessment constitutes a “debt” under the FDCPA. Yet the few courts to have considered that question have all employed Zimmerman’s interpretation of that statutory term. See Riter, 932 F.Supp. at 211-12; Vosatka v. Wolin-Levin, Inc., No. 94 C 4129, 1995 WL 443950, *7-9 (N.D.Ill. July 21, 1995); Azar v. Hayter, 874 F.Supp. 1314, 1318-19 (N.D.Fla.1995), aff'd. without op., 66 F.3d 342 (11th Cir.1995), cert. denied, - U.S. -, 116 S.Ct. 712, 133 L.Ed.2d 666 (1996); Archer v. Beasley, Civ. No. 90-2576(CSF), 1991 WL 34889, *6 (D.N.J. Mar. 5, 1991). Having rejected Zimmerman’s “credit” requirement in Bass, we now write on a clean slate. The Riters and Newmans assert that their obligation to pay past-due assessments qualifies as a “debt” because the obligation arose from the purchase of the underlying property units. According to plaintiffs, the purchase of their homes is the “transaction” to which section 1692a(5) refers even if the precise amount and timing of" }, { "docid": "18029958", "title": "", "text": "127 (1993); see also Keele v. Wexler, 149 F.3d at 594. . English v. General Elec. Co., 496 U.S. 72, 78-80, 110 S.Ct. 2270, 110 L.Ed.2d 65,(1990); Southern Pac. Transp. Co. v. Public Utility Comm'n of State of Or., 9 F.3d 807 (9th Cir.1993). . Medtronic v. Lohr, 518 U.S. 470, 496, 116 S.Ct. 2240, 135 L.Ed.2d 700 (1996); English, 496 U.S. at 80, 110 S.Ct. 2270. . Industrial Truck Assn., Inc., 125 F.3d 1305, 1309 (9th Cir.1997), citing Law v. General Motors Corp., 114 F.3d 908, 909-10 (9th Cir.1997). . Keams v. Tempe Technical Institute, Inc., 39 F.3d 222, 226 (9th Cir.1994), citing English v. General Elec. Co., 496 U.S. 72, 87, 110 S.Ct. 2270, 110 L.Ed.2d 65 (1990). . Chicago & N.W. Tr. Co. v. Kalo Brick & Tile Co., 450 U.S. 311, 317, 101 S.Ct. 1124, 67 L.Ed.2d 258 (1981). . Ballard v. Equifax Check Services, Inc., CV S-96-1532 FCD (Feb. 22, 1999) E.D.Cal., Exhibit A to plaintiffs Supplemental Brief. . 490 U.S. 545, 109 S.Ct. 2003, 104 L.Ed.2d 593 (1989). . See, Executive Software North America, Inc. v. U.S. District Court, 24 F.3d 1545, 1555 (9th Cir.1994). . Actions based on diversity jurisdiction are expressly excepted from Section 1367(a), and are covered instead by Section 1367(b). . See, e.g., CDS Diversified, Inc. v. Franchise Fin. Corp., 757 F.Supp. 202 (E.D.N.Y.1991). . Executive. Software, supra, 24 F.3d at 1548—1549, 1551-1552. . 60 Fair Empl. Prac. Cas. (BNA) 436, 1992 WL 510094 (C.D.Cal.1992) . 1992 WL 289541 (N.D.Cal.1992). . Snow v. Riddle, 143 F.3d 1350 (10th Cir.1998), Duffy v. Landberg, 133 F.3d 1120 (8th Cir.1998) Charles v. Lundgren, 119 F.3d 739 (9th Cir.1997), Brown v. Budget Rent-A-Car Systems, Inc., 119 F.3d 922 (11th Cir.1997), Bass v. Stolper, Koritzinsky, Brewster & Neider, S.C., 111 F.3d 1322 (7th Cir.1997). . Maloy v. Phillips, 64 F.3d 607 (11th Cir.1995), Mattson v. U.S. West Communications, Inc., 967 F.2d 259 (8th Cir.1992), Kuhn v. Account Control Technology, 865 F.Supp. 1443, 1450 (D.Nev.1994). . See e.g., Legille v. Dann, 544 F.2d 1, 9 (D.C.Cir.1976). . Beasley v. Wells Fargo Bank, 235 Cal. App.3d 1383," }, { "docid": "3476207", "title": "", "text": "942-44 (5th Cir.1999) (noting, in a case involving a federal statute, the different interpretations given by courts to terms such as “arising from” and “arising out of’). Therefore, a broad interpretation of “arising out of’ may not be appropriate in this context. Indeed, the case law in this area provides no support for the majority opinion’s expansive interpretation of “arising out of.” Each case in which other appellate courts found a “debt” to exist under the FDCPA involved an obligation that arose out of a single transaction. Thus, courts have determined that an obligation to pay home owner’s association dues, Ladick v. Van Gemert, 146 F.3d 1205, 1207 (10th Cir.1998); Newman v. Boehm, Pearlstein & Bright, Ltd., 119 F.3d 477, 482 (7th Cir.1997), an obligation to pay for water and sewer service, Pollice v. Nat’l Tax Funding, L.P., 225 F.3d 379, 401 (3d Cir.2000), an obligation to make good on a dishonored check, Snow v. Jesse L. Riddle, P.C., 143 F.3d 1350, 1353 (10th Cir.1998); Duffy, 133 F.3d at 1124; Charles v. Lundgren & Assoc., P.C., 119 F.3d 739, 742 (9th Cir.1997); Bass, 111 F.3d at 1330, and an obligation to pay back rent, Romea v. Heiberger & Assoc., 163 F.3d 111, 119 (2d Cir.1998), all constitute “debts” under the FDCPA. In each case, the obligation was a promise to pay for a particular good or service. In each case, the obligation at issue depended on a single transaction. In cases where courts have found no “debt,” the relationship between the obligation and the consumer transaction was more attenuated. For example, courts have held that the obligation to pay prop erty taxes does not constitute a debt for purposes of applying the FDCPA. Pollice, 225 F.3d at 401-02; Beggs v. Rossi, 145 F.3d 511, 512-13 (2d Cir.1998). The obligation to, pay property taxes does, in a sense, “arise out of’ the purchase of a home. Indeed, under the majority’s expansive interpretation of “arising out of,” it would be nearly impossible to' conclude otherwise. After all, the purchase of a home is a “but for” cause of the obligation to pay" }, { "docid": "7817182", "title": "", "text": "“dishonored check” cases. At the time the district court in the instant case granted Riddle’s motion to dismiss, there were no circuit court decisions on the matter, and rulings of district courts on the question were mixed. However, since the district court’s decision in the instant case, the Seventh, Eighth and Ninth Circuits have addressed the particular issue now before us, and each has held that a dishonored check under the circumstances of that particular ease was within the scope of the Act. In addition, the Eleventh Circuit followed the rationale of the Seventh Circuit in declining to follow the Zimmerman reasoning in a case which did not involve a dishonored check. In their chronological order, those four cases are Bass v. Stolper, Koritzinsky, Brewster & Neider, S.C., 111 F.3d 1322 (7th Cir.1997); Charles v. Lundgren & Assoc., 119 F.3d 739 (9th Cir.1997), cert. denied, — U.S. -, 118 S.Ct. 627, 139 L.Ed.2d 607 (1997); Brown v. Budget Rent-A-Car Systems, Inc., 119 F.3d 922 (11th Cir.1997); and Duffy v. Landberg, 133 F.3d 1120 (8th Cir.1998). We shall first look at Bass. In that case, the Seventh Circuit, with Judge Bauer dissenting, held that a payment obligation arising from a dishonored cheek created a “debt” triggering the protections of the Act. In so doing, the Seventh Circuit, though agreeing with the result reached in Zimmerman, held that “an offer or extension of credit is hot required for a payment obligation to constitute a ‘debt’ under the Act.” Specifically, the Seventh Circuit stated that “to the extent that the Zimmerman court creates a requirement that only credit-based transactions constitute ‘debt’ under the FDCPA [Act], we must respectfully part ways.” (Judge Bauer, in his dissent, stated he could not in conscience join “[t]he notion that Congress ... had in mind the protection of those who give bad checks for goods or services----”) Charles, Brown and Duffy all followed Bass, as do we. Under the “plain meaning” test, it would seem to us that a “debt” is created where one obtain goods and gives a dishonored check in return therefor. Conclusion We reverse the" }, { "docid": "22268534", "title": "", "text": "F.Supp.2d at 484 n. 9, this statement from Zimmerman has been widely disavowed by several other courts of appeals, which have taken the broader view that the FDCPA applies to all obligations to pay money which arise out of consensual consumer transactions, regardless of whether credit has been offered or extended. See, e.g., Romea v. Heiberger & Assocs., 163 F.3d 111, 114 n. 4 (2d Cir.1998) (noting that several circuits have “disavowed” the “dicta” in Zimmerman that the FDCPA applies only to transactions involving the “offer or extension of credit”); Brown v. Budget Rent-A-Car Sys., Inc., 119 F.3d 922, 924 n. 1 (11th Cir.1997) (rejecting Zimmerman “[t]o the extent that it read an extension of credit requirement into the definition of debt”); Bass v. Stolper, Koritzinsky, Brewster & Neider, 111 F.3d 1322, 1325-26 (7th Cir.1997) (rejecting Zimmerman and indicating that “[a]s long as the transaction creates an obligation to pay, a debt is created”); see also Wayne Hill, Annotation, What Constitutes “Debt” for Purposes of Fair Debt Collection Practices Act, 159 A.L.R. Fed. 121, 131, 2000 WL 150759 (2000) (“The term ‘debt’ as used in the [FDCPA] has been construed broadly to include any obligation to pay arising out of a consumer transaction.”). We are not bound by the “disavowed” statement in Zimmerman, as it was dictum. In our view, the plain meaning of section 1692a(5) indicates that a “debt” is created whenever a consumer is obligated to pay money as a result of a transaction whose subject is primarily for personal, family or household purposes. No “offer or extension of credit” is required. Accordingly, homeowners’ original obligations to pay the government entities for water and sewer service constituted “debts,” even though the government entities did not extend homeowners any right to defer payment of their obligations. We further agree with the district court’s conclusion that homeowners’ property tax obligations do not constitute “debts” under the FDCPA. In Staub v. Harris, 626 F.2d 275, we specifically held that a per capita tax obligation is not a “debt” for purposes of the FDCPA. Id. at 276-79. We stated that “at a" }, { "docid": "3476213", "title": "", "text": "that an obligation to pay an insurance subrogation claim constitutes a “debt” for purposes of applying the FDCPA. I, therefore, respectfully dissent. . The majority opinion refers to language in Bass suggesting that the FDCPA should be given a broad interpretation. It is important to keep in mind the context of the Bass court’s statements. The Seventh Circuit was determining whether it should follow dicta from the Third Circuit’s decision in Zimmerman v. HBO Affiliate Group, 834 F.2d 1163 (3d Cir.1987). Zimmerman suggested that the FDCPA applied only to obligations involving an \"extension of credit,\" such as credit card debts or other situations in which a consumer defers payment on an item. Id. at 1168-69. The Seventh Circuit, in discussing the \"absolute language” of the FDCPA, was determining only that the Zimmerman court was wrong to limit the Act to obligations involving an extension of credit. Bass, 111 F.3d at 1325. As the language quoted in this dissent makes clear, the Bass court did not mean that there were no limitations on the definition of \"debt.\" See also Duffy v. Landberg, 133 F.3d 1120, 1123 (8th Cir.1998) (also referring to the broad wording of the Act in order to reject the dicta in Zimmerman). . The district court wisely noted the degree to which United's subrogation claim is attenuated from the underlying contract. See Hamilton v. United Healthcare of La., Inc., Nos. Civ.A. 01-585, 01-650, 2001 WL 812076, at *3 (E.D.La. July 16, 2001) (''[H]ad Plaintiff not engaged in another transaction wholly unrelated to his contract with United, i.e., obtaining his own UM policy through another insurer, no obligation would exist.”) (emphasis added). . Hamilton relies on Brown v. Budget Rent-A-Car Systems, Inc., 119 F.3d 922 (11th Cir.1997), for the proposition that a \"debt” under the FDCPA does not have to arise out of a single transaction. In that case, Brown rented at truck and dolly from Budget. Id. at 923. Not long after leaving the rental agency, Brown was in an accident. Id. Budget demanded that he pay for the repair of the vehicle, as well as loss of" }, { "docid": "3476206", "title": "", "text": "obligation to pay arose out of Hamilton’s transaction of purchasing insurance.” The opinion supports this conclusion by asserting that this Court has given the phrase “arising out of’ an expansive interpretation. It is true that we have construed the phrase broadly when interpreting insurance policies. See Am. States Ins. Co. v. Bailey, 133 F.3d 363, 370 (5th Cir.1998) (“This court has held that the words ‘arising out of,’ when used within an insurance policy, are ‘broad, general, and comprehensive terms effecting broad coverage.’ ... The words are ‘understood to mean “originating from,” “having its origin in,” “growing out of,” or “flowing from.”’”) (quoting Red Ball Motor Freight, Inc. v. Employers Mut. Liab. Ins. Co. of Wis., 189 F.2d 374, 378 (5th Cir.1951)) (emphasis added); Jarvis Christian Coll. v. Nat’l Union Fire Ins. Co. of Pittsburgh, Pa., 197 F.3d 742, 747 n. 5 (5th Cir.1999) (same). We have not, however, consistently used this expansive interpretation of “arising out of’ in the context of interpreting federal statutes. See Humphries v. Various Fed. USINS Employees, 164 F.3d 936, 942-44 (5th Cir.1999) (noting, in a case involving a federal statute, the different interpretations given by courts to terms such as “arising from” and “arising out of’). Therefore, a broad interpretation of “arising out of’ may not be appropriate in this context. Indeed, the case law in this area provides no support for the majority opinion’s expansive interpretation of “arising out of.” Each case in which other appellate courts found a “debt” to exist under the FDCPA involved an obligation that arose out of a single transaction. Thus, courts have determined that an obligation to pay home owner’s association dues, Ladick v. Van Gemert, 146 F.3d 1205, 1207 (10th Cir.1998); Newman v. Boehm, Pearlstein & Bright, Ltd., 119 F.3d 477, 482 (7th Cir.1997), an obligation to pay for water and sewer service, Pollice v. Nat’l Tax Funding, L.P., 225 F.3d 379, 401 (3d Cir.2000), an obligation to make good on a dishonored check, Snow v. Jesse L. Riddle, P.C., 143 F.3d 1350, 1353 (10th Cir.1998); Duffy, 133 F.3d at 1124; Charles v. Lundgren & Assoc.," }, { "docid": "18029959", "title": "", "text": "See, Executive Software North America, Inc. v. U.S. District Court, 24 F.3d 1545, 1555 (9th Cir.1994). . Actions based on diversity jurisdiction are expressly excepted from Section 1367(a), and are covered instead by Section 1367(b). . See, e.g., CDS Diversified, Inc. v. Franchise Fin. Corp., 757 F.Supp. 202 (E.D.N.Y.1991). . Executive. Software, supra, 24 F.3d at 1548—1549, 1551-1552. . 60 Fair Empl. Prac. Cas. (BNA) 436, 1992 WL 510094 (C.D.Cal.1992) . 1992 WL 289541 (N.D.Cal.1992). . Snow v. Riddle, 143 F.3d 1350 (10th Cir.1998), Duffy v. Landberg, 133 F.3d 1120 (8th Cir.1998) Charles v. Lundgren, 119 F.3d 739 (9th Cir.1997), Brown v. Budget Rent-A-Car Systems, Inc., 119 F.3d 922 (11th Cir.1997), Bass v. Stolper, Koritzinsky, Brewster & Neider, S.C., 111 F.3d 1322 (7th Cir.1997). . Maloy v. Phillips, 64 F.3d 607 (11th Cir.1995), Mattson v. U.S. West Communications, Inc., 967 F.2d 259 (8th Cir.1992), Kuhn v. Account Control Technology, 865 F.Supp. 1443, 1450 (D.Nev.1994). . See e.g., Legille v. Dann, 544 F.2d 1, 9 (D.C.Cir.1976). . Beasley v. Wells Fargo Bank, 235 Cal. App.3d 1383, 1392-1393, 1 Cal.Rptr.2d 446 (1991) . Garrett v. Coast & Southern Fed. Sav. & Loan Assn., 9 Cal.3d 731, 738, 108 Cal.Rptr. 845, 511 P.2d 1197 (1973). . Hitz v. First Interstate Bank, 38 Cal.App.4th 274, 278, 44 Cal.Rptr.2d 890 (1995). . Keele v. Wexler, 149 F.3d at 595, quoting De La Fuente v. Stokely-Van Camp, Inc., 713 F.2d 225, 232 (7th Cir.1983). . Duran v. Credit Bureau of Yuma, Inc., 93 F.R.D. 607, 610 (D.Ariz.1982). . See e.g., Newman v. Checkrite of California, Inc., 912 F.Supp. 1354 (E.D.Cal.1995). . Swanson v. Southern Oregon Credit Service, Inc., 869 F.2d 1222, 1227 (9th Cir.1988) . See Lerwill v. Inflight Motion Pictures, Inc., 582 F.2d 507, 512 (9th Cir.1978) . See Riordan v. Smith Barney, 113 F.R.D. 60, 64 (N.D.Ill.1986) . Sherman v. Widder, Fed.Sec.L.Rep. (CCH) P98,054 FedlSec.L.Rep. (CCH) P98,054, 1994 WL 159450 (S.D.Cal.1994), Harris v. General Dev. Corp., 127 F.R.D. 655 (N.D.Ill.1989), Haywood v. Barnes, 109 F.R.D. 568, 580 (E.D.N.C.1986), In re Cement and Concrete Antitrust Litigation, 27 Fed.R.Serv.2d (Callaghan) (D.Az. 1979). . (E.D.Cal. Civ. Mo." }, { "docid": "7817181", "title": "", "text": "to those letters, the recipients thereof brought suit against the cable television companies under the Act, alleging, inter alia, that the cable television companies, by their letters, were attempting to collect a “debt” through the use of practices prohibited by the Act. In affirming the district court’s dismissal of the claims based on the Act, the Third Circuit spoke as follows: We find that the type of transaction which may give rise to a “debt” as defined in the FDCPA [the Act], is the same type of transaction as is dealt with in all other subchapters of the Consumer Credit Protection Act, i.e., one involving the offer or extension of credit to a consumer. Specifically it is a transaction in which a consumer is offered or extended the right to acquire “money, property, insurance, or services” which are “primarily for household purposes” and to defer payment. So, Zimmerman did not involve a dishonored check, and the “reasoning” which the district court relied on in our case has since been rejected by various circuit courts in “dishonored check” cases. At the time the district court in the instant case granted Riddle’s motion to dismiss, there were no circuit court decisions on the matter, and rulings of district courts on the question were mixed. However, since the district court’s decision in the instant case, the Seventh, Eighth and Ninth Circuits have addressed the particular issue now before us, and each has held that a dishonored check under the circumstances of that particular ease was within the scope of the Act. In addition, the Eleventh Circuit followed the rationale of the Seventh Circuit in declining to follow the Zimmerman reasoning in a case which did not involve a dishonored check. In their chronological order, those four cases are Bass v. Stolper, Koritzinsky, Brewster & Neider, S.C., 111 F.3d 1322 (7th Cir.1997); Charles v. Lundgren & Assoc., 119 F.3d 739 (9th Cir.1997), cert. denied, — U.S. -, 118 S.Ct. 627, 139 L.Ed.2d 607 (1997); Brown v. Budget Rent-A-Car Systems, Inc., 119 F.3d 922 (11th Cir.1997); and Duffy v. Landberg, 133 F.3d 1120 (8th Cir.1998)." }, { "docid": "21428503", "title": "", "text": "for personal, family, or household purposes whether or not such obligation has been reduced to judgment. 15 U.S.C. § 1692a(5). Defendants maintain that the Act is not implicated here because a dishonored check does not involve an offer or extension of credit, a condition defendants argue must be read into the definition of “debt.” Three circuits have addressed the breadth of the FDCPA’s definition of “debt:” the Third Circuit in Zimmerman v. HBO Affiliate Group, 834 F.2d 1163 (3d Cir.1987), the Seventh Circuit in Bass v. Stolper, Koritzinsky, Brewster & Neider, 111 F.3d 1322 (7th Cir.1997), and the Ninth Circuit in Charles v. Lundgren & Assocs., P.C., 119 F.3d 739 (9th Cir.1997). In Zimmerman, the defendant cable television companies demanded that plaintiffs pay for allegedly pirated microwave television signals. Plaintiffs sued, arguing, inter alia, that the defendants’ collection methods ran afoul of the FDCPA. Affirming the district court’s dismissal of plaintiffs’ FDCPA claims, the Third Circuit first deter mined that the term “transaction” in the Act’s definition of “debt” did not include asserted tort liability, but rather included only contractual or consensual consumer exchanges. Zimmerman, 834 F.2d at 1168. Pirating cable television signals, reasoned the. court, did not constitute such an .exchange. Id. The court then added, without discussion or analysis, that a “debt” under the FDCPA arises from “the same type of transaction as is dealt with in all other subehapters of the Consumer Credit Protection Act, i.e., one involving the offer or extension of credit to a consumer.” Id. However, Zimmerman did not address the issue here — whether the obligation created by a dishonored cheek constitutes a “debt” under the Act. In Bass, the Seventh Circuit confronted this issue and addressed many of the same arguments advanced by defendants. Beginning with the text of the FDCPA itself the court determined that the Act’s definition of ■ “debt” was clear, unambiguous, and devoid of any condition mandating that a “debt” involve an offer or extension of'credit. Bass, 111 F.3d at 1325-26. Thus, “[a]s long as the transaction creates an obligation to pay, a debt is created.” Id. at" }, { "docid": "15623746", "title": "", "text": "to pay does not constitute a “debt” under the FCPA. Whether the district court erred in classifying Oppenheim’s payment obligation to PayPal as a “debt,” governed by the provisions of the FDCPA and FCCPA, is the only issue raised on appeal. We analyze each of the three elements separately to determine whether Oppenheim’s payment obligation constituted a “debt” under the FDCPA. 1. Consumer I.C. System contends that the money at issue here was proceeds from a commercial sale in which Oppenheim was the seller. Since the FDCPA concerns the obligations of a consumer, not a seller, I.C. System argues that the FDCPA cannot apply to Oppenheim’s payment obligations to PayPal. However, I.C. System conflates two connected, but separate transactions. The first transaction concerned the laptop sale between Oppenheim, as seller, and the fraudulent Craigslist purchaser, as buyer. The second transaction — and the relevant transaction for purposes of this action— concerned the services provided by PayPal to Oppenheim, pursuant to the terms delineated in the User Agreement. In this second transaction, as purchaser of PayPal’s services, Oppenheim embodies the role of “consumer.” The mere fact that he consumes PayPal’s services in order to facilitate a separate sale does not thereby negate his consumer status with respect to PayPal. 2. Transaction This Court previously has recognized the broad scope of “debt” in the FDCPA, agreeing with the Seventh Circuit that “ ‘[a]s long as the transaction creates an obligation to pay, a debt is created.’ ” Brown v. Budget Rent-A-Car Sys. Inc., 119 F.3d 922, 924 (11th Cir.1997) (quoting Bass v. Stolper, Koritzinsky, Brewster & Neider, S.C., 111 F.3d 1322, 1325 (7th Cir.1997)) (holding that “debt” in FDCPA does not require an extension of credit). We have also stated that, “at a minimum, a ‘transaction’ under the FDCPA must involve some kind of business dealing or other consensual obligation.” Hawthorne v. Mac Adjustment Inc., 140 F.3d 1367, 1371 (11th Cir.1998). I.C. System contends that PayPal provided no service to Oppenheim for which he refused to pay, and that Oppenheim’s obligation to return the fraudulent funds to PayPal existed regardless of any" }, { "docid": "6886404", "title": "", "text": "“personal, family, or household purposes” requirement under the FDCPA’s definition of debt. The Maxwells also argue that a homeowners’ association fee cannot be a debt under the FDCPA because an extension of credit is necessary to constitute a consumer debt. In support of this assertion, the Maxwells rely on several cases from outside the Ninth Circuit: Bryan v. Clayton, 698 So.2d 1236 (Fla.App.1997), cert. denied — U.S. —, 118 S.Ct. 2334, 141 L.Ed.2d 706 (1998), Azar v. Hayter, 874 F.Supp. 1314 (N.D.Fla.1995), and Zimmerman v. HBO Affiliate Group, 834 F.2d 1163 (3d Cir.1987). However, the Ninth Circuit has expressly held that “the FD CPA’s application is not limited to collection of debts arising out of the offer or extension of credit.” Charles v. Lundgren & Assocs., 119 F.3d 739, 742 (9th Cir.1997) (emphasis added) (holding that a dishonored check is a debt under the FDCPA and that an extension of credit is not required for a payment obligation to constitute a debt under the FDCPA); see also Bass v. Stolper, Koritzinsky, Brewster & Neider, S.C., 111 F.3d 1322 (7th Cir.1997). A federal district court recently relied on the Ninth Circuit’s reasoning in Charles in its analysis of whether an assessment of homeowners’ association fees constituted a debt within the meaning of the FDCPA. See Thies, 969 F.Supp. 604 (S.D.Cal.1997). The court held: The legislative history reflects Congress’ intent that the FDCPA apply to all kinds of consumer transactions, not just credit transactions. Following this intent, the Ninth and Seventh Circuits construed “transaction” generally without the additional requirement of an extension or offer of credit. Plaintiffs are obligated to pay their homeowner fees because of a covenant running with their property. Because no offer or extension of credit is required, the Court finds that a transaction, for the purposes of the FDCPA, arises out of Plaintiffs’ obligation to pay dues for the services of the Association. Thies, 969 F.Supp. at 607. The Court finds no reason to reject the Southern District of California’s interpretation of Ninth Circuit precedent. Accordingly, the Court concludes that homeowners’ association fees constitute debt under the FDCPA." }, { "docid": "22164453", "title": "", "text": "-(citing Holly Farms Corp. v. NLRB, 517 U.S. 392, 397-99, 116 S.Ct. 1396, 1401, 134 L.Ed.2d 593 (1996)). Specifically, Hawthorne alleges that Mac Adjustment violated 15 U.S.C. § 1692e(10), which provides in its entirety: A debt collector may not use any false, deceptive, or misleading representation or means in connection with the collection of any debt. Without limiting the general application of the foregoing, the following conduct is a violation of this section: (10) The use of any false representation or deceptive means to collect or attempt to collect any debt or to obtain information concerning a consumer. Thus, section 1692e makes the existence of a “debt” a threshold requirement for the section’s applicability. See Mabe v. G.C. Servs. Ltd. Partnership, 32 F.3d 86, 88 (4th Cir. 1994); Zimmerman v. HBO Affiliate Group, 834 F.2d 1163, 1167 (3d Cir.1987); Riebe v. Juergensmeyer and Assocs., 979 F.Supp. 1218, 1220 (N.D.Ill.1997). The FDCPA defines “debt,” in turn, as “any obligation or alleged obligation of a consumer to pay money arising out of a transaction in which the money, property, insurance, or services which are the subject of the transaction are primarily for.personal, family, or household purposes, whether or not such obligation has been reduced to a judgment.” 15 U.S.C. § 1692a(5). Although we recently held that a “debt” need not require the extension of credit, see Brown, 119 F.3d at 922 , we have not previously addressed the limits of the FDCPA’s definition of “debt.” By the plain terms of the statute, not all obligations to pay are considered “debts” subject to the FDCPA. See Bass v. Stolper, Koritzinsky, Brewster & Neider, S.C., 111 F.3d 1322, 1324 (7th Cir.1997). Rather, the FDCPA may be triggered only when an obligation to pay arises out of a specified “transaction.” Although the statute does not define the term “transaction,” we do not find it ambiguous. A fundamental canon of statutory construction directs us to interpret words according to their ordinary meaning. See Anderson v. Singletary, 111 F.3d 801, 804 (11th Cir.1997) (citing Perrin v. United States, 444 U.S. 37, 42, 100 S.Ct. 311, 314, 62" }, { "docid": "57676", "title": "", "text": "that the type of transaction meant in the definition of debt in the FDCPA is an offer or extension of credit and that the statute therefore does not apply to their collection activities. The FDCPA is clearly worded and broadly defines debt as “any obligation” to pay arising out of a consumer transaction. It therefore can be applied to appellants’ dishonored checks. Their payment obligations arose from transactions for personal or household goods at a drug and a liquor store. Nothing in the statutory definition suggests that the only consumer transaction giving rise to a debt under the statute is one involving an offer or extension of credit. Rules of statutory construction mandate that the unambiguous term “transaction” be given its ordinary meaning and not that it be read restrictively to mean “credit transaction” as appellees suggest. See Bass v. Stolper, Koritzinsky, Brewster & Neider, 111 F.3d 1322, 1325-26 (7th Cir.1997) (citing Perrin v. United States, 444 U.S. 37, 42, 100 S.Ct. 311, 314, 62 L.Ed.2d 199 (1979)). Two other courts of appeals have recently held that a dishonored' check creates a payment obligation fitting within the plain meaning of the FDCPA definition of “debt.” See Bass, 111 F.3d at 1325-26; Charles v. Lundgren & Associates, P.C., 119 F.3d 739, 742 (9th Cir.), cert. denied, — U.S. -, 118 S.Ct. 627, — L.Ed.2d - (1997); see also Ryan v. Wexler & Wexler, 113 F.3d 91, 93 (7th Cir.), cert. denied, — U.S. -, 118 S.Ct. 298, 139 L.Ed.2d 229 (1997) (following Bass). The reasoning in these cases is persuasive. Since a check written by a consumer in a transaction for goods or services “evidences the drawer’s obligation to pay” and this obligation remains even if the cheek is dishonored, abusive collection practices related to the dishonored check are prohibited by the FDCPA. Bass, 111 F.3d at 1324-26; Charles, 119 F.3d at 742. Since the statutory language is clear, it is not necessary to consult the legislative history, but that history reflects Congress’ intent not to limit the FDCPA’s protections to debts arising from credit transactions. See Bass, 111 F.3d at" }, { "docid": "3580943", "title": "", "text": "was developing in the lower courts. Id. at 212. It therefore dismissed the Riters’ complaint for lack of subject matter jurisdiction. After issuing its decision in Riter, the district court granted Boehm, Pearlstein’s motion to reassign the Newmans’ case to it under the court’s local rule. The district court then dismissed the Newmans’ complaint sua sponte under Riter. The New-mans and Riters appealed separately to this court, and we consolidated their appeals for oral argument and disposition. II. The FDCPA defines a “debt” in the following way: The term “debt” means any obligation or alleged obligation of a consumer to pay money arising out of a transaction in which the money, property, insurance, or services which are the subject of the transaction are primarily for personal, family, or household purposes, whether or not such obligation has been reduced to judgment. 15 U.S.C. § 1692a(5). The bulk of the briefing in these appeals is addressed to whether this definition requires that there be an offer or extension of credit, and thus some type of deferred payment obligation, as the Third Circuit determined in Zimmerman. See 834 F.2d at 1168-69. The district court followed Zimmerman and the weight of lower court authority in concluding that it did. Riter, 932 F.Supp. at 212. From that premise, the court reasoned that the Riters’ obligation to pay past-due assessments to their homeowners association did not involve an offer or extension of credit, or a deferred payment obligation. Id. But after we heard argument in these appeals, another panel of this court expressly rejected Zimmerman’s “credit” requirement and held that “an offer or extension of credit is not required for a payment obligation to constitute a ‘debt’ under the FDCPA.” Bass v. Stolper, Koritzinsky, Brewster & Neider, S.C., 111 F.3d 1322, 1326 (7th Cir.1997). All that is required under Bass is a transaction creating an obligation to pay. Id. at 1325. Based upon that understanding, the Bass panel concluded that the payment obligation arising from a dishonored check qualifies as a “debt” under the Act. Id.; see also Ryan v. Wexler & Wexler, 113 F.3d 91" }, { "docid": "21428502", "title": "", "text": "III. DISCUSSION The following issues are raised by the pending motions: (1) the scope of the FDCPA, that is, whether the obligation created by a dishonored check is a “debt” as defined by the Act; (2) if the Act does apply, whether defendants’ conduct violated it; (3) whether defendants violated the FCRA; (4) whether CheckRite may be held liable for the actions of its attorney; (5) whether Richard DeLoney may be held personally liable for the collection activities of DeLoney & Associates; (6) whether plaintiffs are entitled to injunctive relief; and (7) whether the FDCPA claims of plaintiffs Crandall and Robison are cognizable under the Act. A. Scope of the FDCPA The FDCPA prohibits a debt collector from using certain abusive practices to collect a “debt;” therefore, the Act’s scope is necessarily limited by its definition of this term. The Act defines a “debt” as: any obligation or alleged obligation to pay money arising out of a transaction in which the money, property, insurance, or services which are the subject of the transaction are primarily for personal, family, or household purposes whether or not such obligation has been reduced to judgment. 15 U.S.C. § 1692a(5). Defendants maintain that the Act is not implicated here because a dishonored check does not involve an offer or extension of credit, a condition defendants argue must be read into the definition of “debt.” Three circuits have addressed the breadth of the FDCPA’s definition of “debt:” the Third Circuit in Zimmerman v. HBO Affiliate Group, 834 F.2d 1163 (3d Cir.1987), the Seventh Circuit in Bass v. Stolper, Koritzinsky, Brewster & Neider, 111 F.3d 1322 (7th Cir.1997), and the Ninth Circuit in Charles v. Lundgren & Assocs., P.C., 119 F.3d 739 (9th Cir.1997). In Zimmerman, the defendant cable television companies demanded that plaintiffs pay for allegedly pirated microwave television signals. Plaintiffs sued, arguing, inter alia, that the defendants’ collection methods ran afoul of the FDCPA. Affirming the district court’s dismissal of plaintiffs’ FDCPA claims, the Third Circuit first deter mined that the term “transaction” in the Act’s definition of “debt” did not include asserted tort liability," }, { "docid": "15623747", "title": "", "text": "services, Oppenheim embodies the role of “consumer.” The mere fact that he consumes PayPal’s services in order to facilitate a separate sale does not thereby negate his consumer status with respect to PayPal. 2. Transaction This Court previously has recognized the broad scope of “debt” in the FDCPA, agreeing with the Seventh Circuit that “ ‘[a]s long as the transaction creates an obligation to pay, a debt is created.’ ” Brown v. Budget Rent-A-Car Sys. Inc., 119 F.3d 922, 924 (11th Cir.1997) (quoting Bass v. Stolper, Koritzinsky, Brewster & Neider, S.C., 111 F.3d 1322, 1325 (7th Cir.1997)) (holding that “debt” in FDCPA does not require an extension of credit). We have also stated that, “at a minimum, a ‘transaction’ under the FDCPA must involve some kind of business dealing or other consensual obligation.” Hawthorne v. Mac Adjustment Inc., 140 F.3d 1367, 1371 (11th Cir.1998). I.C. System contends that PayPal provided no service to Oppenheim for which he refused to pay, and that Oppenheim’s obligation to return the fraudulent funds to PayPal existed regardless of any contractual relationship with I.C. System. We take I.C. System to mean, therefore, that Oppenheim’s failure to reimburse PayPal was not a “transaction” and thus does not fall within the ambit of the FDCPA. We disagree. In support of its contentions, I.C. System cites Arnold v. Truemper, 833 F.Supp. 678 (N.D.Ill.1993). Arnold involved a bank that accidentally allotted a $20,000 credit to the plaintiffs’ bank account when the plaintiffs had deposited only $2,000. Id. at 680. When the bank requested a return of the erroneously credited money, plaintiffs refused and ultimately filed suit alleging that the bank’s collection attempts violated the FDCPA. Id. at 680-81. The district court, however, ruled that the complaint failed to state a claim because the improper credit did not arise out of any transaction and thus did not constitute a “debt” under the FDCPA. Id. at 685-86. See also Orenbuch v. Leopold, Gross & Sommers, P.C., 586 F.Supp.2d 105, 108 (E.D.N.Y.2008) (obligation to refund erroneously paid salary, due to accounting error, did not arise from a consumer transaction and therefore not" }, { "docid": "6886403", "title": "", "text": "[of homeowners’ association fees] can be likened to past-due tax obligations which are not considered ‘debts’ under the [FDCPA].” 119 F.3d 477, 481 (7th Cir.1997). The court concluded: [t]he assessments here have a more specific household purpose than taxes collected by a governmental entity. Rather than generally providing for government services, these assessments are collected in order to improve and maintain commonly-owned areas used by each unit owner. The [homeowners’] assessments thereby directly benefit each household in the development. As a result, the assessments have a “personal, family, or household purpose.\" Id., at 481-82 (emphasis added). Like the other courts that have followed the reasoning set forth in Newman, this Court is persuaded by the reasoning of the Seventh Circuit. See, e.g., Ladick v. Van Gemert, 146 F.3d 1205, 1205 (10th Cir.1998) (holding that an assessment owed to a condominium association qualified as a “debt” within the meaning of the FDCPA); Thies v. Law Offices of William A. Wyman, 969 F.Supp. 604, 608 (S.D.Cal.1997) (same). Therefore, the Court finds that homeowners’ association fees meet the “personal, family, or household purposes” requirement under the FDCPA’s definition of debt. The Maxwells also argue that a homeowners’ association fee cannot be a debt under the FDCPA because an extension of credit is necessary to constitute a consumer debt. In support of this assertion, the Maxwells rely on several cases from outside the Ninth Circuit: Bryan v. Clayton, 698 So.2d 1236 (Fla.App.1997), cert. denied — U.S. —, 118 S.Ct. 2334, 141 L.Ed.2d 706 (1998), Azar v. Hayter, 874 F.Supp. 1314 (N.D.Fla.1995), and Zimmerman v. HBO Affiliate Group, 834 F.2d 1163 (3d Cir.1987). However, the Ninth Circuit has expressly held that “the FD CPA’s application is not limited to collection of debts arising out of the offer or extension of credit.” Charles v. Lundgren & Assocs., 119 F.3d 739, 742 (9th Cir.1997) (emphasis added) (holding that a dishonored check is a debt under the FDCPA and that an extension of credit is not required for a payment obligation to constitute a debt under the FDCPA); see also Bass v. Stolper, Koritzinsky, Brewster & Neider, S.C.," }, { "docid": "3476193", "title": "", "text": "out of a consumer transaction. HRI claims that, like in Garner, its August 29, 2000 letter was designed to determine whether there was a reimbursement obligation, not as an attempt to collect an alleged debt because the reimbursement claim did not arise out of a consumer transaction. Further, citing Hawthorne v. Mac Adjustment, Inc., 140 F.3d 1367, 1372 (11th Cir.1998), HRI asserts that Brown is distinguishable because it concerned whether the FDCPA requires an extension of credit and did not address whether the alleged debt arose pursuant to a consumer “transaction.” In Hawthorne, the Eleventh Circuit held that a debt arising from tortious conduct on the part of the defendants does not constitute a consumer transaction for purposes of the FDCPA. Id. at 1373. In discussing its holding in Brown, the court stated in part as follows: We held that the FDCPA does not require the extension of credit to be applicable to an obligation. We did not consider the question of whether the obligation at issue in Brown involved a “transaction” under the FDCPA. It is clear, however, that the facts delineated in Brown do not exclude the possibility that the obligation in that case constituted a “debt” under the FDCPA, as Brown’s obligations arose at least in part out of a business transaction where Brown contracted for what appear to be personal services (the truck rental and the loss damage waiver protection). Id. Because no such “transaction”—i.e., contract, business, or consensual arrangement—occurred in Hawthorn, the court held that Brown did not require the court to conclude that the tort obligation at issue was covered by the FDCPA. Id. As with all issues of statutory interpretation, the appropriate place to begin our analysis is with the text itself. Hughey v. United States, 495 U.S. 411, 415, 110 S.Ct. 1979, 109 L.Ed.2d 408 (1990). We agree with the Seventh Circuit’s determination that the FDCPA’s definition of “debt” is plain. Bass v. Stolper, Koritzinsky, Brewster & Neider, S.C., 111 F.3d 1322, 1324 (7th Cir.1997). The definition is not “ ‘beset with internal inconsistencies [or] burdened with vocabulary that escapes common understanding.’" }, { "docid": "22268533", "title": "", "text": "“debt”; indeed, these obligations constituted “debts” from the time they initially were owed to the government entities, and they retained that status after their assignment to NTF. At the time these obligations first arose, homeowners (“consumers” of water and sewer services) had an “obligation ... to pay money” to the government entities which arose out of a “transaction” (requesting water and sewer service) the subject of which was “services ... primarily for personal, family, or household purposes.” Defendants, relying on a statement in our Zimmerman decision, argue that the water, sewer and tax claims are not “debts” because there was no “offer or extension of credit” to homeowners. See Zimmerman, 834 F.2d at 1168 (“We find that the type of transaction which may give rise to a ‘debt’ as defined in the FDCPA, is the same type of transaction as is dealt with in all other subchapters of the Consumer Credit Protection Act, i.e., one involving the offer or extension of credit to a consumer”) (emphasis added). As the district court noted, see Pollice, 59 F.Supp.2d at 484 n. 9, this statement from Zimmerman has been widely disavowed by several other courts of appeals, which have taken the broader view that the FDCPA applies to all obligations to pay money which arise out of consensual consumer transactions, regardless of whether credit has been offered or extended. See, e.g., Romea v. Heiberger & Assocs., 163 F.3d 111, 114 n. 4 (2d Cir.1998) (noting that several circuits have “disavowed” the “dicta” in Zimmerman that the FDCPA applies only to transactions involving the “offer or extension of credit”); Brown v. Budget Rent-A-Car Sys., Inc., 119 F.3d 922, 924 n. 1 (11th Cir.1997) (rejecting Zimmerman “[t]o the extent that it read an extension of credit requirement into the definition of debt”); Bass v. Stolper, Koritzinsky, Brewster & Neider, 111 F.3d 1322, 1325-26 (7th Cir.1997) (rejecting Zimmerman and indicating that “[a]s long as the transaction creates an obligation to pay, a debt is created”); see also Wayne Hill, Annotation, What Constitutes “Debt” for Purposes of Fair Debt Collection Practices Act, 159 A.L.R. Fed. 121, 131," } ]

[ { "docid": "16789663", "title": "", "text": "of a disease in a particular occupational group, the disease is given special recognition in the workmen’s compensation statutes. and occasionally is accorded an irrebuttable presumption of occupational causation permitting the claimant simply to show that he has the disease without requiring any affirmative or defensive showing of causation. In the case of fire fighters and policemen, special recognition of their unique occupational hazards has been accorded in several State workmen’s compensation statutes. Most of these statutes establish a presumption that respiratory and heart diseases are occupationally related. In no instance, under State workmen’s compensation statutes, has this presumption been considered irrebuttable although the degree of proof required to rebut the presumption differs. IB A. Larson, Workmen’s Compensation Law, sec. 41.72 (1980). Here, paragraph 2 establishes an irrebuttable presumption that heart, lung, and respiratory illnesses are occupationally related. Although State workmen’s compensation statutes recognize the increased risk of these diseases in the occupational group of which petitioner is a member, this risk has not been considered sufficiently distinguished from the risk of such disease in the population as a whole to justify an irrebuttable presumption of occupational causation. Consequently, we hold that for purposes of section 104(a)(1), paragraph 2 is not a statute in the nature of a workmen’s compensation act as it does not provide compensation only for occupational injury or sickness. As paragraph 2 is not a statute in the nature of a workmen’s compensation act and petitioners have not made a showing that payments to petitioner were made pursuant to paragraph 1, we must and do deny petitioners’ motion for summary judgment. Respondent’s Motion Respondent contends that he has a made the requisite showing that the statute under which petitioner received payments was not in the nature of a workmen’s compensation act and that petitioner did not receive payments for occupational injury or sickness. We disagree. As previously discussed, paragraph 2 is not a statute in the nature of a workmen’s compensation act. However, this does not end our inquiry for purposes of respondent’s motion. The ordinance at issue provides that disability payments can be made under" } ]

[ { "docid": "17848208", "title": "", "text": "BALDOCK, Circuit Judge. In accordance with 10th Cir.R. 9(e) and Fed.R.App.P. 34(a), this appeal came on for consideration on the briefs and record on appeal. This is an appeal from an order of the United States Tax Court granting the Commissioner’s motion for summary judgment, affirming the Commissioner’s determination of deficiencies and additions to tax, and awarding damages to the Commissioner for appellant’s maintenance of a frivolous action. We affirm the judgment of the Tax Court and impose additional sanctions of $1,500 for appellant’s frivolous appeal. By notice of deficiency dated October 24, 1983, the Commissioner notified appellant that he owed taxes for the years 1980 and 1981, as well as additions to tax for those same years due to his failure to file a return, I.R.C. § 6651(a), his negligence in failing to pay any tax, I.R.C. § 6653(a), and his underpayment of estimated tax payments, I.R.C. § 6654. On January 26, 1984, appellant filed his petition in Tax Court, alleging that the Commissioner erroneously determined the deficiencies and additions to tax, and that the Commissioner failed to follow Internal Revenue Code procedures. Following the filing of his answer, the Commissioner filed a request for admissions. Appellant responded by admitting that he had received the amounts of money from employers as alleged by the Commissioner, but that such amounts did not constitute wages or taxable income. The Commissioner then moved for summary judgment affirming the determined deficiencies and additions to tax, as well as for damages pursuant to I.R.C. § 6673. Appellant then filed his own motion for summary judgment, contending that the amounts he received were for an equal exchange of property (his labor) and therefore did not constitute taxable wages. A hearing was held on both motions on November 26, 1984, at which the parties stated that they had nothing to add to their pleadings as filed. The Tax Court issued its memorandum opinion April 1, 1985, in which it denied Appellant’s motion for summary judgment, granted the Commissioner’s motion for summary judgment, and awarded damages to the Commissioner of $5,000. Appellant filed a timely notice of" }, { "docid": "16789661", "title": "", "text": "not part of the State workmen’s compensation act. Consequently, the ordinance must be a statute in the nature of a workmen’s compensation act if the exclusion under section 104(a)(1) is to apply. The ordinance establishing the plan under which payments were made provides that a claimant under the plan can prove the existence of an occupational disability by showing a causal relationship between the injury and performance of official duties; see Anchorage, Alaska Code sec. 3.85.040(A)(1) (par. 1); or by showing that the claimant has a heart, lung, or respiratory illness in which event the causal relationship will be presumed; see Anchorage, Alaska Code sec. 3.85.040(A)(2) (par. 2). Paragraph 2 makes no provision for the employer to rebut the presumption of causation established therein; on its face, paragraph 2 establishes an irrebuttable presumption. Petitioners have presented facts and argued only the issue of whether the provisions under paragraph 2 are in the nature of a workmen’s compensation statute and have cited case authority to support their position. All of the cases on which petitioners rely are inapposite as they do not involve the effect of an irrebuttable presumption in a statute providing for occupational disability payments. The issue raised by petitioners’ motion is one of first impression. The ordinance under which payments were received purports to compensate employees for occupational disabilities. However, paragraph 2 creates an irrebuttable presumption that certain enumerated disabilities are occupationally related. Paragraph 2 does not sufficiently limit the criteria for compensability to meet the requirement that the statute allow disability payments solely for service-related personal injury or sickness. Generally, the purpose of workmen’s compensation statutes is to provide benefits to victims of work-connected injuries and to ultimately place the cost of such injuries on the consumer. 1 A. Larson, Workmen’s Compensation Law, sec.. 1.00 (1978). Where the statute extends to occupational disease as well as injury, the principal problem has been distinguishing diseases which are peculiar to that occupation from \"ordinary diseases of life” which are not compensable. IB A. Larson, Workmen’s Compensation Law, sec. 41.33 .(1980). In a few situations, because of the increased risk" }, { "docid": "13823198", "title": "", "text": "the only defense was that of a qualified privilege claimed by the defendant under California Civil Code, section 47, subdivision 3 (a communication, without malice, between interested persons is privileged and therefore not defamation). The jury was not asked to specify whether the damages were awarded as compensation for injury to Roemer’s personal or professional reputation, nor did the jury allocate the award between Roemer’s personal injury and his economic loss. The jury was instructed, however, that in determining the amount of actual or compensatory damages, it could “take into consideration the grief, anguish, mental suffering, mortification and humiliation which Plaintiff has undergone and suffered by reason of the Defendant’s publication.” The jury was also told that in awarding general and compensatory damages it could consider “the prominence of the Plaintiff in the community in which he lives, his social standing, his family status or any mental suffering proximately resulting from the defamation.” On Roemer’s 1975 federal tax return, he reported $16,020 of the damages awarded in the defamation action as income. The Commissioner of Internal Revenue determined that the entire judgment received by Roemer should have been included in gross income with a deduction for all costs and attorneys’ fees and assessed a deficiency of $32,980 against Roemer. The tax court, in an opinion by Judge Dawson reviewed by the court with three judges dissenting, upheld the Commissioner’s determination. The tax court ruled that: (1) the compensatory damages were not excludable from gross income under I.R.C. § 104(a)(2), because the taxpayer had failed to establish that the compensatory damages were received for injury to his personal reputation; (2) the punitive damages were also includa ble in gross income, since the tax court found that the compensatory damages were intended to reimburse the taxpayer for injury to his professional reputation; (3) both the compensatory and the punitive damages were taxable as ordinary income; and (4) the issue whether the costs were excludable from gross income as a recovery of capital or includable and deductible under I.R.C. § 212 was moot in the context of this case. Roemer v. Commissioner, 79" }, { "docid": "16789665", "title": "", "text": "paragraph 1 or paragraph 2. Paragraph 1 requires that the occupational disability be received while performing official duties, and it is a statute in the nature of a workmen’s compensation act. Haar v. Commissioner, supra at 868; Dyer v. Commissioner, supra at 562; Robinson v. Commissioner, supra at 407-408. Paragraph 1 does not exclude an illness listed under paragraph 2. Therefore, it is possible for an employee who has a heart,, lung, or respiratory illness to establish occupational causation as required under paragraph 1. Respondent has not made the requisite showing that petitioner received disability payments pursuant to paragraph 2 rather than paragraph 1. The materials respondent has submitted in support of his motion and other acceptable materials indicate only that petitioner was granted permanent disability benefits and that the physicians examining petitioner did not state that petitioner’s illness was occupationally related. Respondent did not submit minutes of the plan board meeting in which benefits were awarded to petitioner nor has he presented affidavits or testimony which would indicate whether a determination of causation was made and whether petitioner received benefits under paragraph 1 or paragraph 2. These are genuine issues of material fact for which a determination must be made before a judgment can be rendered as a matter of law. Therefore, we must and do deny respondent’s motion. In accord with our views expressed herein, An appropriate order will be issued. Unless otherwise specified, all Rule references are to the Tax Court Rules of Practice and Procedure. Unless otherwise specified, all section references are to the Internal Revenue Code of 1954 as amended. The petitioners have also submitted a claim for \"costs and attorneys fees reasonably expended in this matter” in their petition. Pursuant to Rule 34(b) and Rule 231, a claim for reasonable litigation costs shall not be included in the petition but shall be made by motion. We have, therefore, not considered petitioners’ claim for reasonable litigation costs. Petitioners do not claim that any of the amounts received by petitioner are excludable from gross income under sec. 105(d). Had petitioners advanced such an argument, we do" }, { "docid": "9954838", "title": "", "text": "PER CURIAM. Daniel S. Haar appeals from the decision of the United States Tax Court finding for his 1976, 1977, 1978, and 1979 taxable years in the amounts of $274.73, $179.12, $1,817.00, and $2,988.00 respectively. Haar served in the United States Air Force from December 8, 1941, to February 6, 1946. Although Haar had a hearing disability caused by a war injury, his discharge from the Air Force was not due to the impairment and he did not receive any disability compensation from the Veterans Administration on account of his disability. In 1950, Haar was hired as a General Services Administration (GSA) auditor. On June 13,1973, GSA directed Haar to take a medical examination in order to determine his fitness for duty in his regular position. This examination revealed that Haar was unable to perform his duties because of his hearing impairment. On June 19, 1974, Haar retired from the GSA and thereafter he received an annuity pension from the Civil Service Retirement and Disability Fund. The amounts received were computed on the basis of his average pay and length of service with GSA. On his 1974 and 1975 tax returns, Haar excluded from income $100 per week with respect to amounts paid from the Fund. In 1976 through 1979, however, he failed to report any portion of his Fund payments. Upon audit, the Commissioner determined that, with the exception of $5,200 paid in 1976, none of the disability retirement payments received by Haar from 1976 through 1979 were excludable from gross income. The tax court upheld the Commissioner, ruling that such payments did not fit within the various Internal Revenue Code provisions excluding from income compensation for sickness, for injuries or for disability under either §§ 104(a)(1), 104(a)(4), or 105(d), I.R.C.1954. The tax court specifically found that although the ambiguous wording of section 104(a)(4) provides some superficial support for Haar’s position, it is overshadowed by the fact that the Civil Service Retirement Act, 5 U.S.C. § 8331, et seq., is not designed to provide compensation for military injuries. We have carefully studied the record, including the tax court’s opinion," }, { "docid": "16789668", "title": "", "text": "from rule 56, Federal Rules of Civil Procedure. Hence, in any question turning on the interpretation of Rule 121, the history of rule 56, Fed. R. Civ. P., and the authorities interpreting such rule are considered by the Tax Court. See Hoeme v. Commissioner, 63 T.C. 18, 21 (1974); Shiosaki v. Commissioner, 61 T.C. 861, 862 (1974). Petitioners’ counsel states that the presumption is not irrebuttable (transcript at 8, 22). However, he has offered no authority to support this proposition nor has our research disclosed any such authority. Petitioners, however, have not conceded that par. 2 is the only provision under which the disability payments were made. Compensation statutes which provide an irrebuttable presumption of the causal relationship between the occupation and certain diseases are apparently a recent phenomenon. See IB A. Larson, Workmen’s Compensation Law, ch. 41 (1980). The full import of such statute in relation to sec. 104(a)(1) has not been determined. In one area, respondent has permitted exclusion of disability benefits, under I.R.C. sec. 104(a)(1), paid pursuant to tit. IV of the Federal Coal Mine Health and Safety Act of 1969, Pub. L. 91-173, 30 U.S.C. 801, as amended by the Black Lung Benefits Act of 1972, Pub. L. 92-303, Rev. Rui. 72-400, 1972-2 C.B. 75, 86 Stat. 150. The act, as amended, provides an irrebuttable presumption in certain instances that death or disability due to pneumoconiosis (black lung disease) is occupationally related. For example, in some States, the workmen’s compensation statute defines compensable occupational diseases by the relationship between the activities performed within the occupation and the disease contracted. Idaho Code sec. 72-438 (Supp. 1983); N.C. Gen. Stat. sec. 97-53 (1979); Ohio Rev. Code Ann. sec. 4123.68 (Page 1980). For example, prior to amendment, Wisconsin had a statute providing for compensation on a finding that the employee had silicosis and that he was discharged or ceased his employment as a result of the disease (Wis. Stat. Ann. sec. 102.565 (West 1973)). No showing of causation was required. This opinion does not purport to preclude the possibility that an irrebuttable presumption establishing causation under a compensation statute" }, { "docid": "16789655", "title": "", "text": "OPINION Cantrel, Special Trial Judge: This case is presently before the Court on petitioners’ motion for summary judgment, filed on August 12,1983, pursuant to Rule 121(a), and respondent’s motion for summary judgment, filed on September 15, 1983, pursuant to Rule 121(a). Respondent, in his notice of deficiency issued to petitioners on January 21, 1983, determined a deficiency in petitioners’ Federal income tax for the taxable calendar year 1979 in the amount of $7,481.17 and an addition to the tax under section 6653(a) in the amount of $374.06. Petitioners have abandoned all issues with the exception of the inclusion of $15,385 in their gross income. The $15,385 amount was paid to Thomas Take (hereinafter petitioner) by the trust of the Anchorage (Alaska) Retirement Plan for Police Officers and Fire Fighters (hereinafter plan). The parties agree that inclusion or exclusion of this amount from gross income will be determined under section 104(a)(1). Petitioner applied for and was granted occupational disability benefits under Anchorage, Alaska Code sec. 3.85.040. This ordinance provides, in pertinent part: 3.85.040 Occupational disability. A. A member who, due to an occupational disability, is unable to perform his assigned duties, shall receive a monthly pension of 66% [percent] of his gross monthly compensation at the time of disability. * * * The Retirement Board shall determine whether an occupational disability exists based upon medical reports and other evidence satisfactory to the Retirement Board. The Retirement Board shall in all instances recognize the below provisions; however, consideration will not be limited to these provisions: 1. Any injury received while performing official duties for the Municipality of Anchorage which renders a member incapable of performing normal assigned duties will be construed as an occupational disability. * * * 2. The cumulative effect of the constant contact with that portion of the citizenry which suffers from infectious tuberculosis, the frequent strenuous duties encountered in performing daily assigned duties as police officers and fire fighters, and of the inhalation of smoke, toxic gases, chemical fumes and other toxic vapors on the heart, lungs and respiratory system shall be construed as an injury received or" }, { "docid": "16789669", "title": "", "text": "Federal Coal Mine Health and Safety Act of 1969, Pub. L. 91-173, 30 U.S.C. 801, as amended by the Black Lung Benefits Act of 1972, Pub. L. 92-303, Rev. Rui. 72-400, 1972-2 C.B. 75, 86 Stat. 150. The act, as amended, provides an irrebuttable presumption in certain instances that death or disability due to pneumoconiosis (black lung disease) is occupationally related. For example, in some States, the workmen’s compensation statute defines compensable occupational diseases by the relationship between the activities performed within the occupation and the disease contracted. Idaho Code sec. 72-438 (Supp. 1983); N.C. Gen. Stat. sec. 97-53 (1979); Ohio Rev. Code Ann. sec. 4123.68 (Page 1980). For example, prior to amendment, Wisconsin had a statute providing for compensation on a finding that the employee had silicosis and that he was discharged or ceased his employment as a result of the disease (Wis. Stat. Ann. sec. 102.565 (West 1973)). No showing of causation was required. This opinion does not purport to preclude the possibility that an irrebuttable presumption establishing causation under a compensation statute will qualify under sec. 104(a)(1). However, qualification under sec. 104(a)(1) requires that there be a more definitive relationship between the occupation and the injury or sickness than under par. 2. In addition, petitioners have not met the second requirement for exclusion under sec. 104(a)(1). Under this requirement, the payments made must be received for occupational injury or sickness, and the mere fact that the recipient of such payments is disabled at the time of retirement is not determinative. See McDonald v. Commissioner, 33 T.C. 540 (1959); Brown v. Commissioner, 25 T.C. 220 (1955); Neill v. Commissioner, 17 T.C. 1015 (1951). The situation where the statute under which payments are received provides an irrebuttable presumption of causation presents unique problems in meeting this second requirement. Assuming that the statute itself qualifies as a workmen’s compensation act or a statute in the nature of a workmen’s compensation act, the appropriate determination under the second requirement enunciated in McDonald, Brown, and Neill will be whether the person receiving such payments is actually afflicted with the injury or sickness" }, { "docid": "16789660", "title": "", "text": "2720 (2d ed. 1983). Petitioners’ Motion Petitioners contend that the payments made to petitioner by the trust of the plan are excludable from gross income as a matter of law under the languáge of section 104(a)(1). Section 104(a) states, in pertinent part: (a) In General.— * * * gross income does not include— (1) amounts received under workmen’s compensation acts as compensation for personal injuries or sickness; The exclusion under section 104(a)(1) applies as well to a statute in the nature of a workmen’s compensation act. Haar v. Commissioner, 78 T.C. 864, 867-868 (1982), affd. per curiam on the basis of the Tax Court’s opinion, 709 F.2d 1206 (8th Cir. 1983); Dyer v. Commissioner, 71 T.C. 560, 561 (1979). A statute is in the nature of a workmen’s compensation act only if it allows disability payments solely for service-related personal injury or sickness. See Haar v. Commissioner, supra at 868; Dyer v. Commissioner, supra at 562; Robinson v. Commissioner, 42 T.C. 403, 407-408 (1964). Here, the ordinance under which amounts were received by petitioner is not part of the State workmen’s compensation act. Consequently, the ordinance must be a statute in the nature of a workmen’s compensation act if the exclusion under section 104(a)(1) is to apply. The ordinance establishing the plan under which payments were made provides that a claimant under the plan can prove the existence of an occupational disability by showing a causal relationship between the injury and performance of official duties; see Anchorage, Alaska Code sec. 3.85.040(A)(1) (par. 1); or by showing that the claimant has a heart, lung, or respiratory illness in which event the causal relationship will be presumed; see Anchorage, Alaska Code sec. 3.85.040(A)(2) (par. 2). Paragraph 2 makes no provision for the employer to rebut the presumption of causation established therein; on its face, paragraph 2 establishes an irrebuttable presumption. Petitioners have presented facts and argued only the issue of whether the provisions under paragraph 2 are in the nature of a workmen’s compensation statute and have cited case authority to support their position. All of the cases on which petitioners rely" }, { "docid": "13757633", "title": "", "text": "FUTA taxes. Continental also withheld federal and state income taxes and the employee’s share of FICA taxes totaling $8,083.62, making the Hemelts’ net proceeds from the settlement $20,613.09. Mr. Schell received a $58,124 Basie Award and a $16,744 Earnings Impairment Additur for a total award of $74,868. This amount was reduced by Continental’s share of FICA and FUTA taxes, a contribution to a qualified pension plan, and a $15,502.20 deduction for federal and state income taxes and the employee’s share of FICA taxes, resulting in a net award of $42,068.03. In December 1993, the Hemelts and the Schells both sought refunds of the federal income taxes and FICA taxes they had paid on the settlement award in the 1992 tax year. They argued that since the settlement payments aimed to compensate them for personal injuries, including the anxiety and stress caused by their illegal layoff,' the amounts should be excluded from income for tax purposes and should not be considered wages under FICA. The IRS disallowed the claims. Taxpayers then sued for refunds, maintaining that the settlement awards should be excluded from their gross income under section 104(a)(2) of the I.R.C. because they were received as settlement of claims for personal injury damages. As such, taxpayers further contended, the awards were not “wages” for the purpose of FICA taxation. The district court determined that the settlement awards did not fit within the section 104(a)(2) exclusion of “the amount of any damages received (whether by suit or agreement and whether as lump sums or as periodic payments) on account of personal injuries or sickness.” See Hemelt v. United States, 951 F.Supp. 562, 568 (D.Md.1996). The court found that the Supreme Court’s decision in Mertens foreclosed a ruling that the McLendon suit was an “action based upon tort or tort type rights,” which is a necessary element of the test for excluding the awards from income under I.R.C. section 104(a)(2). 26 C.F.R. § 1.104-1(c); see also Commissioner v. Schleier, 515 U.S. 323, 335-36, 115 S.Ct. 2159, 2167, 132 L.Ed.2d 294 (1995). Granting the United States’ motion for summary judgment in full, the" }, { "docid": "1025171", "title": "", "text": "sick leave pay pursuant to a “statute”, and this he cannot do. We recognize that courts have not limited the interpretation of the term “statute” in this section to state or federal statutes or city ordinances. For example, in Dyer v. Commissioner of Internal Revenue, 71 T.C. 560 (1979), the petitioner received sick leave payments pursuant to regulations of the Board of Education of the City of New York, and, reasoning that “[t]hese regulations [had] the force and effect of law”, the tax court found that the payments were made under a “statute” for the purposes of § 104(a)(1). Id. at 562. However, Rutter’s payments were not made pursuant to a regulation, but pursuant to a labor contract. A regulation, like a statute, is a rule of general applicability promulgated by a public agency to govern conduct within the agency’s jurisdiction. A labor contract, unlike a statute, is an agreement between union and employer, modifiable at any time. That this particular labor contract involved a public employer is irrelevant to the legislative purposes behind the workmen’s compensation exclusion, and does not convert the contract into a “statute”. Finally, Rutter does not cite, nor have we found, any case holding that the term “statute” in Treasury Regulation § 1.104-l(b) can be stretched to include a labor contract. In short, we hold that Rutter’s sick leave payments are not excludable from his gross income because the labor contract under which they were paid does not qualify as a statute within the meaning of the regulation. See Rev.Rul. 83-77, 1983-1 C.B. 37, 38. Rutter also argues that § 434a-14.0(c) of the Administrative Code of the City of New York may be viewed as a “statute in the nature of a workmen’s compensation act” under which he received his sick leave payments. There are two flaws to this argument. First, Rutter did not receive his sick leave payments pursuant to this section; as he has stipulated, the payments were made pursuant to the labor contract. The fact that the parties also stipulated that the contract is “consistent with” this section of the New York" }, { "docid": "16789664", "title": "", "text": "the population as a whole to justify an irrebuttable presumption of occupational causation. Consequently, we hold that for purposes of section 104(a)(1), paragraph 2 is not a statute in the nature of a workmen’s compensation act as it does not provide compensation only for occupational injury or sickness. As paragraph 2 is not a statute in the nature of a workmen’s compensation act and petitioners have not made a showing that payments to petitioner were made pursuant to paragraph 1, we must and do deny petitioners’ motion for summary judgment. Respondent’s Motion Respondent contends that he has a made the requisite showing that the statute under which petitioner received payments was not in the nature of a workmen’s compensation act and that petitioner did not receive payments for occupational injury or sickness. We disagree. As previously discussed, paragraph 2 is not a statute in the nature of a workmen’s compensation act. However, this does not end our inquiry for purposes of respondent’s motion. The ordinance at issue provides that disability payments can be made under paragraph 1 or paragraph 2. Paragraph 1 requires that the occupational disability be received while performing official duties, and it is a statute in the nature of a workmen’s compensation act. Haar v. Commissioner, supra at 868; Dyer v. Commissioner, supra at 562; Robinson v. Commissioner, supra at 407-408. Paragraph 1 does not exclude an illness listed under paragraph 2. Therefore, it is possible for an employee who has a heart,, lung, or respiratory illness to establish occupational causation as required under paragraph 1. Respondent has not made the requisite showing that petitioner received disability payments pursuant to paragraph 2 rather than paragraph 1. The materials respondent has submitted in support of his motion and other acceptable materials indicate only that petitioner was granted permanent disability benefits and that the physicians examining petitioner did not state that petitioner’s illness was occupationally related. Respondent did not submit minutes of the plan board meeting in which benefits were awarded to petitioner nor has he presented affidavits or testimony which would indicate whether a determination of causation was" }, { "docid": "1025170", "title": "", "text": "derived, including compensation for services. 26 U.S.C. § 61(a). Under § 104(a)(1), however, “amounts received under workmen’s compensation acts as compensation for personal injuries of sickness” are excluded from gross income. 26 U.S.C. § 104(a)(1). Treasury Regulation § 1.104-1 interprets § 104(a)(1) to exclude from gross income any amounts received by an employee under a workmen’s compensation act * * * or under a statute in the nature of a workmen’s compensation act which provides compensation to employees for personal injuries or sickness incurred in the course of employment. Emphasis added. Rutter does not claim that the plain language of the statute, § 104(a)(1), allows him to exclude his sick leave pay from gross income, since his sick leave pay was obviously not received “under a workmen’s compensation act”. Rutter does contend, however, that he qualifies under the regulation, § 1.104-1, which allows for the ex- elusion of payments made “under a statute in the nature of a workmen’s compensation act.” To qualify under the regulation, however, Rutter must first show that he received his sick leave pay pursuant to a “statute”, and this he cannot do. We recognize that courts have not limited the interpretation of the term “statute” in this section to state or federal statutes or city ordinances. For example, in Dyer v. Commissioner of Internal Revenue, 71 T.C. 560 (1979), the petitioner received sick leave payments pursuant to regulations of the Board of Education of the City of New York, and, reasoning that “[t]hese regulations [had] the force and effect of law”, the tax court found that the payments were made under a “statute” for the purposes of § 104(a)(1). Id. at 562. However, Rutter’s payments were not made pursuant to a regulation, but pursuant to a labor contract. A regulation, like a statute, is a rule of general applicability promulgated by a public agency to govern conduct within the agency’s jurisdiction. A labor contract, unlike a statute, is an agreement between union and employer, modifiable at any time. That this particular labor contract involved a public employer is irrelevant to the legislative purposes behind the" }, { "docid": "3803980", "title": "", "text": "final compensation. This reduction was required by Article VI, Part B, Section 2(b) of the Detroit Policeman and Firemen Retirement System, which provides: A member ... retired [due to disability] shall receive the following benefits: (b) If such member, at the time of his retirement, shall have a total of twenty-five years or more of creditable service or on the expiration of the period when a member retired and receiving benefits under (a) above would have such total had he continued in active service, he shall receive a reduced disability allowance computed in the same manner as the allowance provided in Part A of this Article with optional benefits as provided in Part H of this Article. (emphasis added). Under Part A of Article VI, which provides for the regular retirement allowance, Wiedmaier was entitled to receive a reduced disability allowance of two percent of his average final compensation times twenty-five years in service. Thus, Wiedmaier received fifty percent of his average final compensation so that he received $6,191.55 in 1978, $8,255.40 in 1979, and $14,519.37 in 1980. Wiedmaier excluded these amounts from his gross income. In this appeal, Wiedmaier contends that the amounts he received as a reduced disability allowance should be excluded from gross income under I.R.C. § 104(a)(1) as benefits in the nature of workmen’s compensation. The Tax Court, in a thorough and well-reasoned opinion, rejected this contention. Because the Tax Court’s opinion clearly delineates the issues and discusses them carefully, we will only touch upon the highlights of the Tax Court’s ruling. Treas.Reg. § 1.104(b) specifically contemplates the type of situation presented here. It states, in relevant part, that the exclusion of I.R.C. § 104(a)(1) “does not apply to a retirement pension ... to the extent that it is determined by reference to the employee’s age or length of service ... even though the employee’s retirement is occasioned by an occupational injury or sickness.” The clear purpose of the regulation is to distinguish between benefits that are intended to compensate an employee for lost earning capacity due to an injury, i.e., those benefits that are deductible" }, { "docid": "3803981", "title": "", "text": "$14,519.37 in 1980. Wiedmaier excluded these amounts from his gross income. In this appeal, Wiedmaier contends that the amounts he received as a reduced disability allowance should be excluded from gross income under I.R.C. § 104(a)(1) as benefits in the nature of workmen’s compensation. The Tax Court, in a thorough and well-reasoned opinion, rejected this contention. Because the Tax Court’s opinion clearly delineates the issues and discusses them carefully, we will only touch upon the highlights of the Tax Court’s ruling. Treas.Reg. § 1.104(b) specifically contemplates the type of situation presented here. It states, in relevant part, that the exclusion of I.R.C. § 104(a)(1) “does not apply to a retirement pension ... to the extent that it is determined by reference to the employee’s age or length of service ... even though the employee’s retirement is occasioned by an occupational injury or sickness.” The clear purpose of the regulation is to distinguish between benefits that are intended to compensate an employee for lost earning capacity due to an injury, i.e., those benefits that are deductible under section 104(a)(1), and those benefits that are simply a retirement pension in consideration for past services. Once Wi-edmaier had reached twenty-five years of creditable service, the benefits he received were clearly nothing more than a retirement allowance. They were calculated the same way as the retirement benefits of a fireman who had retired after twenty-five years of service without injury, and they were in no way related to the scope of his injury. Thus, Wiedmaier’s reduced disability allowance was not excludable from income pursuant to Treas.Reg. § 1.104(b). Wiedmaier’s argument that Treas.Reg. § 1.104(b) is “unreasonable and plainly inconsistent” with section 104(a)(1), see Commissioner v. South Texas Lumber Co., 333 U.S. 496, 501, 68 S.Ct. 695, 698-99, 92 L.Ed. 831 (1948), is unavailing. Section 104(a)(1) is designed to exclude disability payments, not pension payments, from income. Treas.Reg. § 1.104(b) simply identifies what is a pension payment and distinguishes it from a disability payment. Thus, the regulation is plainly consistent with the statutory framework. The decision of the Tax Court is affirmed. . If Wiedmaier" }, { "docid": "16789659", "title": "", "text": "for summary judgment. Petitioners also have submitted a memorandum in opposition to respondent’s motion. A decision will be rendered on a motion for summary judgment if the pleádings, answers to interrogatories, depositions, admissions, and any other acceptable materials, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that a decision may be rendered as a matter of law. See Rule 121(b). The burden of proving that there is no genuine issue of material fact is on the moving party. See Adickes v. Kress & Co., 398 U.S. 144, 157 (1970); Graf v. Commissioner, 80 T.C. 944, 946 (1983); Espinoza v. Commissioner, 78 T.C. 412, 416 (1982). Where both parties submit motions for summary judgment, each motion must be examined to determine if the moving party has established that there is no genuine issue as to any material fact and that a decision may be rendered as a matter of law. See C. Wright, A. Miller & M. Kane, 10A Federal Practice & Procedure: Civil, sec. 2720 (2d ed. 1983). Petitioners’ Motion Petitioners contend that the payments made to petitioner by the trust of the plan are excludable from gross income as a matter of law under the languáge of section 104(a)(1). Section 104(a) states, in pertinent part: (a) In General.— * * * gross income does not include— (1) amounts received under workmen’s compensation acts as compensation for personal injuries or sickness; The exclusion under section 104(a)(1) applies as well to a statute in the nature of a workmen’s compensation act. Haar v. Commissioner, 78 T.C. 864, 867-868 (1982), affd. per curiam on the basis of the Tax Court’s opinion, 709 F.2d 1206 (8th Cir. 1983); Dyer v. Commissioner, 71 T.C. 560, 561 (1979). A statute is in the nature of a workmen’s compensation act only if it allows disability payments solely for service-related personal injury or sickness. See Haar v. Commissioner, supra at 868; Dyer v. Commissioner, supra at 562; Robinson v. Commissioner, 42 T.C. 403, 407-408 (1964). Here, the ordinance under which amounts were received by petitioner is" }, { "docid": "16789657", "title": "", "text": "disease contracted while in the performance of duty; therefore, heart, lung and respiratory system illnesses shall be. construed as occupational disabilities. A retired member hired on or after July 1, 1977 receiving benefits under Section 3.85.030 or Section 3.85.050 shall not be eligible for occupational disability benefits under this section if heart or respiratory disability occurs after the seventh anniversary of the member’s retirement. 3. * * * Temporary occupational disability benefits for non-retired members shall be made only to the extent that such benefits and other wage continuation payments attributable to the municipality equal 100 [percent] of gross monthly compensation at the time of the disability. Temporary occupational disability benefits approved by the board shall be granted for a period not to exceed 90 days. The board, upon subsequent written request of the applicant and in consideration of medical and other evidence satisfactory to the board, may extend such benefits for additional periods not to exceed 90 days. [Emphasis added.] In addition to providing benefits for temporary or permanent occupational disability, the plan provides retirement benefits based on age and/or years of service (Anchorage, Alaska Code sec. 3.85.030) and non-occupational disability benefits (Anchorage, Alaska Code sec. 3.85.050) as well as other death and medical benefits. Petitioner was awarded temporary occupational disability benefits by a letter from the secretary of the retirement board of the plan dated June 11, 1979, and permanent occupational disability benefits by a letter from the secretary of the retirement board of the plan dated August 20, 1979. Neither letter explicitly stated under which provision of the Anchorage ordinance benefits were to be awarded. However, the description of benefits awarded indicates that petitioner received temporary occupational disability benefits under Anchorage, Alaska Code sec. 3.85.040(A)(3) and permanent occupational disability benefits under Anchorage, Alaska Code sec. 3.85.040(A), subsection (1) or (2). In support of their motion for summary judgment, petitioners have submitted a memorandum of law, copies of petitioner’s \"Retirement Papers,” and a copy of Anchorage, Alaska Code ch. 3.85, Anchorage Police and Fire Retirement Plan. Respondent submitted a memorandum of law and supporting materials with his motion" }, { "docid": "16789667", "title": "", "text": "not believe the disability payments would be excludable from gross income because of the requirement of permanent and total disability and the reduction of the exclusion amount where the taxpayer’s gross income exceeds $15,000. Neither petitioners nor respondent have clarified under which subsection of this ordinance the payments at issue were made. Both parties apparently believe that all payments at issue were made pursuant to one of the provisions relating to permanent occupational disability. Therefore, for purposes of these motions, we have not considered whether the temporary occupational disability benefits would be excludable from gross income under sec. 104(a)(1). letter of June 11,1979, states, in pertinent part: \"At the June meeting, the Police and Fire Retirement Board reviewed your request for an occupational disability retirement. Temporary benefits were approved effective May 17, 1979.” (Emphasis added.) The letter of Aug. 20, 1979, states, in pertinent part: \"At the August meeting of the Police and Fire Retirement Board your request for a permanent occupational disability retirement was approved.” (Emphasis added.) Summary judgment under Rule 121 is derived from rule 56, Federal Rules of Civil Procedure. Hence, in any question turning on the interpretation of Rule 121, the history of rule 56, Fed. R. Civ. P., and the authorities interpreting such rule are considered by the Tax Court. See Hoeme v. Commissioner, 63 T.C. 18, 21 (1974); Shiosaki v. Commissioner, 61 T.C. 861, 862 (1974). Petitioners’ counsel states that the presumption is not irrebuttable (transcript at 8, 22). However, he has offered no authority to support this proposition nor has our research disclosed any such authority. Petitioners, however, have not conceded that par. 2 is the only provision under which the disability payments were made. Compensation statutes which provide an irrebuttable presumption of the causal relationship between the occupation and certain diseases are apparently a recent phenomenon. See IB A. Larson, Workmen’s Compensation Law, ch. 41 (1980). The full import of such statute in relation to sec. 104(a)(1) has not been determined. In one area, respondent has permitted exclusion of disability benefits, under I.R.C. sec. 104(a)(1), paid pursuant to tit. IV of the" }, { "docid": "16789662", "title": "", "text": "are inapposite as they do not involve the effect of an irrebuttable presumption in a statute providing for occupational disability payments. The issue raised by petitioners’ motion is one of first impression. The ordinance under which payments were received purports to compensate employees for occupational disabilities. However, paragraph 2 creates an irrebuttable presumption that certain enumerated disabilities are occupationally related. Paragraph 2 does not sufficiently limit the criteria for compensability to meet the requirement that the statute allow disability payments solely for service-related personal injury or sickness. Generally, the purpose of workmen’s compensation statutes is to provide benefits to victims of work-connected injuries and to ultimately place the cost of such injuries on the consumer. 1 A. Larson, Workmen’s Compensation Law, sec.. 1.00 (1978). Where the statute extends to occupational disease as well as injury, the principal problem has been distinguishing diseases which are peculiar to that occupation from \"ordinary diseases of life” which are not compensable. IB A. Larson, Workmen’s Compensation Law, sec. 41.33 .(1980). In a few situations, because of the increased risk of a disease in a particular occupational group, the disease is given special recognition in the workmen’s compensation statutes. and occasionally is accorded an irrebuttable presumption of occupational causation permitting the claimant simply to show that he has the disease without requiring any affirmative or defensive showing of causation. In the case of fire fighters and policemen, special recognition of their unique occupational hazards has been accorded in several State workmen’s compensation statutes. Most of these statutes establish a presumption that respiratory and heart diseases are occupationally related. In no instance, under State workmen’s compensation statutes, has this presumption been considered irrebuttable although the degree of proof required to rebut the presumption differs. IB A. Larson, Workmen’s Compensation Law, sec. 41.72 (1980). Here, paragraph 2 establishes an irrebuttable presumption that heart, lung, and respiratory illnesses are occupationally related. Although State workmen’s compensation statutes recognize the increased risk of these diseases in the occupational group of which petitioner is a member, this risk has not been considered sufficiently distinguished from the risk of such disease in" }, { "docid": "1025169", "title": "", "text": "The relevant portion of the contract provides that [e]ach employee shall be entitled to leave with pay for the full period of any incapacity due to illness, injury or mental or physical defect, whether or not service-connected. Emphasis added. The parties stipulated that this section of the labor contract is “consistent with” § 434a-14.0(c) of the Administrative Code of the City of New York, which provides that the New York City police commissioner is authorized to deduct and withhold salary from any member or members of the force for or on account of absence for any cause without leave, lost time, sickness or other disability. On his 1978 federal income tax return, Rutter claimed an exclusion from gross income for the amount he had received as sick leave payments during that tax year, but the commissioner disallowed this amount in full. The tax court upheld the commissioner’s determination and this appeal followed. Section 61(a) of the Internal Revenue Code provides that, except as otherwise provided by law, gross income means all income from whatever source derived, including compensation for services. 26 U.S.C. § 61(a). Under § 104(a)(1), however, “amounts received under workmen’s compensation acts as compensation for personal injuries of sickness” are excluded from gross income. 26 U.S.C. § 104(a)(1). Treasury Regulation § 1.104-1 interprets § 104(a)(1) to exclude from gross income any amounts received by an employee under a workmen’s compensation act * * * or under a statute in the nature of a workmen’s compensation act which provides compensation to employees for personal injuries or sickness incurred in the course of employment. Emphasis added. Rutter does not claim that the plain language of the statute, § 104(a)(1), allows him to exclude his sick leave pay from gross income, since his sick leave pay was obviously not received “under a workmen’s compensation act”. Rutter does contend, however, that he qualifies under the regulation, § 1.104-1, which allows for the ex- elusion of payments made “under a statute in the nature of a workmen’s compensation act.” To qualify under the regulation, however, Rutter must first show that he received his" } ]

[ { "docid": "21541041", "title": "", "text": "from such respondent a civil penalty in the sum of not more than $5,000. In other words, the power to enforce is transferred from the Commission to the Department of Justice, and jurisdiction of such proceeding is '-transferred from the Circuit Court of Appeals to the United States District Courts.. We think the order attacked is not legislative in its character, and that if it were it would not be discriminatory because the statute and all orders thereunder apply equally to all persons in like conditions. The equal protection clause means that the rights of all persons must rest upon the same rule under similar circumstances. Louisville Gas & Elec. Co. v. Coleman, 277 U.S. 32, 48 S.Ct. 423, 72 L.Ed. 770. The amendment did not transform the Commission’s order into a legislative act. It merely changed'the Government’s remedy for its -enforcement. Cf. Crane v. Hahlo, 258 U.S. 142, 42 S.Ct. 214, 66 L.Ed. 514: So far.as'this court is concerned, the constitutionality of section 5 of the original Act has been determined. Federal Trade Commission v. A. McLean & Son, 7 Cir., 84 F.2d 910. The provision for a judicial review of an administrative order constitutes due process of. law (Bourjois, Inc. v. Chapman, 301 U.S. 183, 57 S.Ct. 691, 81 L.Ed. 1027), and we are convinced that section 5, as amended does not offend the due process clause. Petitioner further urges that it would be prejudicially discriminatory against it to permit the order to become operative because its competitors use the same methods. In other words, it argues that unless the Government proceeds against all such offenders at one time, it would be wrong to proceed against it alone. There is no merit in this contention. Federal Trade Commission v. Winsted Hosiery Co., 258 U. S. 483, 42 S.Ct. 384, 66 L.Ed. 729; Federal Trade Commission v. R. F. Keppel & Bro., 291 U.S. 304, 54 S.Ct. 423, 78 L.Ed. 814. Petitioner also contends that the order must rest upon a complaint which alleges and finds a set of facts within the jurisdiction of the Commission, and it urges" } ]

[ { "docid": "23318518", "title": "", "text": "Act, employees must be engaged in commerce or in “any process or occupation necessary to the production” of goods for commerce. That their activities may affect commerce is not sufficient. In this respect comparison of the Act with other commerce statutes is instructive. Many of the latter employ broad phrases or contemplate wide limitations such as “stream of commerce,” “current of commerce,” “restraining commerce,” or “burdening, affecting or obstructing commerce.” National Labor Relations Act, Sec. 10(a), 49 Stat. 449, 453, 29 U.S.C.A. § 160(a); Federal Employers’ Liability Act, 1939 Amendment, § 1, 53 Stat. 1404, 45 U.S.C.A. § 51; National Bituminous Coal Conservation Act, sec. 4-A, 50 Stat. 83, 15 U.S.C.A. § 834; Packers & Stockyards Act, Sec. 2(b), 42 Stat. 159, 7 U.S.C.A. § 183; Grain Futures Act, sec. 2(b), 42 Stat. 998, 7 U.S.C.A. § 3; Tobacco Inspection Act, sec. 1(i), 49 Stat. 731, 7 U.S. C.A. § 511; Agricultural Marketing Act of 1937, 50 Stat. 246, 7 U.S.C.A. § 608c; and the Agricultural Adjustment Act of 1938, Sec. 301(a) (4), 52 Stat. 38, 7 U.S.C.A., c. 35, § 1301(a) (4). On the other hand, statutes like this are limited to parties “in commerce” or an equivalent. Federal Employers’ Liability Act, prior to the 1939 amendment 35 Stat. 65, 45 U.S.C.A. § 51; Federal Trade Commission Act, 38 Stat. 717, 15 U.S.C.A. § 44; U. S. Cotton Standards Act, 42 Stat. 1517, 7 U.S.C.A. § 62(b); U. S. Grain Standards Act, 39 Stat. 482, 7 U.S.C.A. § 72; Naval Stores Act, 42 Stat. 1435, 7 U.S.C.A. § 92(1) ; Importation of Adulterated Seeds Act, 37 Stat. 506, 44 Stat. 325, 7 U.S.C.A. § 116(f) (2) ; Interstate Transportation of Petroleum Products Act, 49 Stat. 30, 15 U.S.C.A. § 715a (3); Motor Carrier Act, 49 Stat. 543, 49 U.S.C. A. § 306. Since Congress has evinced explicitly its purpose to protect some interstate commerce activities which, in isolation, are merely local, the limited scope of the Act must be kept in mind. Federal Trade Commission v. Bunte Bros., Inc., 312 U.S. 349, 351, 61 S.Ct. 580, 85 L.Ed. 881." }, { "docid": "12230224", "title": "", "text": "obviously, is a lottery or gambling device. All sales of candy by petitioners, whether to wholesale or to retail dealers, are outright sales, petitioners retaining no control over such candy after delivering it to the dealer. Petitioners, however, in making such sales, know that the candy will be, and intend that it shall be, sold to the public by means of punchboards, as above described. They accordingly pack and assemble the candy in “draw” or “deal” assortments, so that it may be so sold without alteration or rearrangement. They also furnish with each assortment a punchboard and, attached to it, a legend or statement explaining its use. Thus, knowingly and purposely, petititioners cause and procure their candy to be sold and distributed to the public by means of a lottery or gambling device. Petitioners have many competitors who will not and do not use, or cause or procure others to use, any lottery or gambling device. The Commission found, upon ample evidence, that such competitors are placed at a disadvantage in competing with petitioners, in that, because of the element of chance involved, many customers are attracted by the punchboard method of selling candy and are thereby induced to purchase petitioners’, instead of their competitors’ candy. Thus, by the use of a lottery or gambling device, petitioners are able to, and do, compete successfully with those who will not and do not use this method of competition. That such a method of competition is unfair, within the meaning of § 5 of the Federal Trade Commission Act, is well settled. Federal Trade Commission v. R. F. Keppel & Bro., 291 U.S. 304, 309, 54 S.Ct. 423, 78 L.Ed. 814; Walter H. Johnson Candy Co. v. Federal Trade Commission, 7 Cir., 78 F.2d 717; Hofeller v. Federal Trade Commission, 7 Cir., 82 F.2d 647, 649; Federal Trade Commission v. Southern Premium Mfg. Co., 5 Cir., 83 F.2d 1008; Federal Trade Commission v. A. McLean & Son, 7 Cir., 84 F.2d 910; Federal Trade Commission v. F. A. Martoccio Co., 8 Cir., 87 F.2d 561, 563; Federal Trade Commission v. George Ziegler" }, { "docid": "4390064", "title": "", "text": "33, 36, and the Commission’s admittedly broad power to draw inferences. However, there is no occasion to debate this, for the evidence makes it plain beyond peradventure, and the absence of any contrary findings confirms, that any remote tendency of the ad to mislead was ended when the brochures arrived. Hence the only prejudice possibly suffered even by the most wayfaring and foolish authors would be a if stamp, the depression when the brochures dissipated the temporary euphoria of thinking their books would be published without cost, and perhaps an occasional decision, taken with all the facts fully disclosed, to move into a flame of publication that otherwise would have stayed unseen. I cannot believe this came within the area with which Congress was concerned when it created the Federal Trade Commission and empowered it to prevent “unfair methods of competition in commerce” in 1914, 38 Stat. 717, 719, § 5, or even, when Congress added “unfair or deceptive acts or practices in commerce” in 1938, 52 Stat. 111, 112. Whether a particular activity offends § 5 remains a question for the courts to decide, F. T. C. v. Gratz, 1920, 253 U.S. 421, 40 S.Ct. 572, 64 L.Ed. 993. Although the 1914 debates reveal “no clear agreement” on the meaning of § 5, all the speakers were a long way from anything with so ephemeral an effect as what was proven here, and the 1938 amendment, designed to eliminate the need of proving a potential adverse effect on competition, did not eliminate the need of establishing the potentiality of the kind of adverse effect of which the law customarily takes note. Although the Commission is not limited to common law concepts, F. T. C. v. R. F. Keppel & Bro. Inc., 1934, 291 U.S. 304, 54 S.Ct. 423, 78 L.Ed. 814, that decision itself indicates the type of showing needed to support a departure from them. Neither the language nor the history of the statute reveals a purpose to bring the vast power of the Federal Government into play simply to prevent what at most is a slight excess" }, { "docid": "23584983", "title": "", "text": "plaintiff on his charge of unfair competition and it has not appealed. The district court added that even if the defendant’s registrations had been infringed by the plaintiff the defendant by reason of its laches could not be heard to complain. D.C., 47 F.Supp. 499. See Philco Corp. v. Phillips Mfg. Co., 7 Cir., 133 F.2d 663, 673, footnote 8, but compare Yale Electric Corp. v. Robertson, 2 Cir., 26 F.2d 972, 974, in which Judge Learned Hand wrote: “It would plainly be a fatuity to decree the registration of a mark whose use another could at once prevent”, and see California Packing Corp. v. Tillman & Bendel, Inc., 40 F.2d 108, 17 C.C.P.A., Patents, 1048; California Fruit Growers Exchange v. Windsor Beverages, Ltd., 7 Cir., 118 F.2d 149. If it is probable that the owner of a registered trademark and another may become competitors by the expansion of the owner’s business into a related line, it indicates that the goods are sufficiently related so that an association of them by the public with a single source is likely. 3 Am.Law Institute, Restatement of Torts, § 731 comment c. See also Section 5 of the Trade-mark Act, 15 U.S.C.A. § 85, which denies registrability to “trade-marks which are identical^ with a- registered or known trade-mark owned and in use by another and appropriated to merchandise of the same descriptive properties, or which so nearly resemble a registered or known trade-mark owned and in use by another and appropriated to merchandise of the same descriptive properties as to. be likely to cause confusion or mistake in the mind of the public or to deceive purchasers.”" }, { "docid": "11489881", "title": "", "text": "381, 46 S.Ct. 160, 70 L.Ed. 317; B. F. Goodrich Co. v. Hockmeyer, 40 F.2d 99, 103, 17 C.C.P.A., Patents, 1068. It was implicit in a host of cases in every circuit, of which the following are typical: Mishawaka Rubber & Woolen Mfg. Co. v. S. S. Kresge Co., 6 Cir., 119 F.2d 316, 325; Mantle Lamp Co. of America v. Aladdin Mfg. Co., 7 Cir., 78 F.2d 426; Walgreen Drug Stores v. Obear-Nester Glass Co., 8 Cir., 113 F.2d 956, 960-961; Del Monte Special Food Co. v. California Packing Corp., 9 Cir., 34 F.2d 774. Thus, in interpreting Section 16 of the Trade Mark Act of 1905 the federal courts now have two equally valid groups of federal cases upon which to draw: first, those that expressly interpret the statutory phrase “substantially the same descriptive properties”; and second, those that (being older than Tompkins’ case) apply as part of a federal common law of unfair competition a doctrine extending trade-mark protection from the goods to which it was originally affixed to kindred goods. Both these lines of federal authority make it clear that during the first four decades of this century the inferior federal courts gradually broadened the protection given to an owner of a mark. Whereas once his right was limited to protection against the passing off of another’s goods as his own; later he was entitled at least in most federal courts to complain if others used his mark on goods which prospective purchasers would reasonably regard as coming from him. The history of this change of doctrine is conveniently summarized in Am.L.Inst., Restatement, Torts, §§ 712, 717, 730. The philosophy of the new approach has been best expressed in a series of opinions by Judge Learned Hand that have become classics of trade-mark law. S. C. Johnson & Son, Inc., v. Johnson, 2 Cir., 116 F.2d 427, 429; Emerson Electric Mfg. Co. v. Emerson Radio & P. Corp., 2 Cir., 105 F.2d 908; L. E. Waterman Co. v. Gordon, 2 Cir., 72 F.2d 272; Landers, Frary & Clark v. Universal Cooler Corp., 2 Cir., 85 F.2d" }, { "docid": "14546453", "title": "", "text": "encourage registration, and that there is a requirement that no trade-mark shall be refused registration, except in designated cases, which “ is just as imperative as the prohibition of the proviso against registration in cases specified,” citing Beckwith v. Commissioner of Patents, 274 O. G. 613, 252 U. S. 538; 1920 C. D. 471. Fully recognizing the fact that the proceeding is purely statutory, we nevertheless can not acquiesce in this contention to the extent that appellant’s insistence would lead. By the terms of the statute, ownership is an express prerequisite of the right to register. The opening words of the trade-mark registration act are “ That the owner of a trade-mark * * * may obtain registration * * Italics ours). This court, following many decisions of the Court of Appeals of the District of Columbia (our predecessor in this particular line of trade-mark jurisdiction) and of other courts having jurisdiction of trade-mark questions, including the Supreme Court of the United States, has had several occasions to point out that in passing the trade-mark registration act Congress added nothing to and took nothing from the common-law principles applying or relating to trade-mark ownership. B. F. Goodrich Co. v. Kenilworth Mfg. Co., 17 C. C. P. A. (Patents) 1105; Sum-Maid Raisin Growers of California v. American Grocer Co., 17 C. C. P. A. (Patents) 1034, 1037, and numerous cases therein cited. In re Plymouth Motor Corp., 18 C. C. P. A. (Patents) 838. In the Swi-Maid Raisin Growers case, supra, we said: Congress, by the enactment of the trade-mark act of 1905, never intended to authorize the registration of a trade-mark the use of which could be prevented by resort to common law. (See California Packing Corp. v. Tillman & Bendel (Inc.), Patent Appeal No. 2341, 17 Ct. Cust. & Pat. Appls. 1048, 40 Fed. (2d) 108, and B. F. Goodrich Co. v. Olive E. Hockmeyer, (Zip-On Mfg. Co., substituted), Patent Appeal No. 2208, 17 Ct. Cust. & Pat. Appls. 1068, 40 Fed. (2d) 99, both decided concurrently herewith. Also see Yale Electric Co. v. Robertson, 26 Fed. (2d) 972," }, { "docid": "12757102", "title": "", "text": "241, 92 S.Ct. 898. Later, in Federal Trade Commission v. Raladam Co., 283 U.S. 643, 649, 51 S.Ct. 587, 75 L.Ed. 1324 (1931), the Court made clear that an unfair method must be unfair to competitors. It said: [T]he word ‘competition’ imports the existence of present or potential competitors, and the unfair methods must be such as injuriously affect or tend thus to affect the business of these competitors' — that is to say, the trader whose methods are assailed as unfair must have present or potential rivals in trade whose business will be, or is likely to be, lessened or otherwise injured. Three years later, however, the Supreme Court changed course in Federal Trade Commission v. R.F. Keppel & Bro., Inc., 291 U.S. 304, 54 S.Ct. 423, 78 L.Ed. 814 (1934). As explained in Sperry & Hutchinson, 405 U.S. at 242-43, 92 S.Ct. 898, the Court in Keppel upheld an FTC cease-and-desist order against a candy marketing scheme on the ground that it “contravened public policy insofar as it tempted children to gamble and compelled those who would successfully compete with Keppel to abandon their scruples by similarly tempting children.” The marketing scheme “was ‘unfair,’ though any competitor could maintain his position simply by adopting the challenged practice.” Id. at 243, 92 S.Ct. 898. Sperry & Hutchinson concluded its summary of Keppel as follows: “Thenceforth, unfair competitive practices were not limited to those likely to have anticompetitive consequences after the manner of the antitrust law; nor were unfair practices in commerce confined to purely competitive behavior.” Id. at 244, 92 S.Ct. 898. The Court then noted that the Keppel decision’s “perspective” of the FTCA “was legislatively confirmed” in 1938 when Congress amended the Act by adding the phrase “unfair or deceptive acts or practices” to the original ban on “unfair methods of competition.” Id. at 244, 92 S.Ct. 898 (internal quotation marks omitted). The Court thought that the language unfair or deceptive acts or practices clearly did not require anticompetitive conduct. See id. To return to the PSA, the original 1921 language of § 202(a) made it unlawful to" }, { "docid": "22231866", "title": "", "text": "Sons Rope Co. v. Broderick & Bascom Rope Co., 36 App. D. C. 451. It seems to be the position of the Patent Office and of the applicant that as affects the goods at bar, it is immaterial if confusion and deceit result as long as the merchandise of the one is not of the “same descriptive properties” as the merchandise of the other, giving the phrase “same descriptive properties” its ordinary and restricted meaning. To so conclude is to lose sight of the trade-mark legislation as a whole and the purpose of its enactment. “ ‘The law of trade-marks is but a part of the broader law of unfair competition’ * * * the general purpose of which is to prevent one person from passing off his goods or his business as the goods or business of another.” American Steel Foundries v. Robertson, 269 U. S. 372, 46 S. Ct. 160, 162, 70 L. Ed. 317. Congress by the enactment of the Trade-Mark Act of 1905 (15 USCA §§.81-109) never intended to authorize the registration of a trade-mark, the us.e of which could be prevented by resort to common law. See California Packing Corp. v. Tillman & Bendel, Inc., 40 F.(2d) 108, and B. F. Goodrich Co. v. Clive E. Hockmeyer (Zip-On Mfg. Co., substituted), 40 F.(2d) 99, both decided concurrently herewith. Also, see Yale Electric Corp. v. Robertson (C. C. A.) 26 F.(2d) 972, and Levy v. Uri, 31 App. D. C. 441. Congress was given no constitutional authority to pass legislation concerning trademarks inconsistent with the common law (American. Steel Foundries v. Robertson, supra), and we think it is obvious from the context of the act and the report of the committee which reported the trade-mark bill that it never intended to do so (Id.). The dominant purpose of the trade-mark aet was to protect the publie and purchasers against confusion. It never intended that a trademark should be registered if its use was likely to cause confusion or mistake in the mind of the publie or if purchasers were likely to be deceived by its use." }, { "docid": "4179122", "title": "", "text": "v. Price-Booker Mfg. Co., 52 App.D.C. 259, 285 F. 993, saw the two steps two and one-half years earlier. “It is conceded that the goods are substantially identical. The only question, then, is as to whether or not the two marks are so similar as to be likely to produce confusion in the minds of purchasers with respect to the origin of the goods upon which they are used.” Proctor & Gamble Co. v. Eney Shortening Co., 50 App.D.C. 42, 267 F. 344. See Morrison Co. v. Cudahy Packing Co., 50 App.D.C. 236, 270 F. 358. Compare Nulyne Laboratories v. Electro-Alkaline Co., 52 App.D.C. 265, 285 F. 999, and Vacuum Oil Co. v. Gargoyle Textile Corp., 52 App.D.C. 268, 285 F. 1002. California Packing Corp. v. Price-Booker Mfg. Co., 52 App.D.C. 259, 285 F. 993. B. F. Goodrich Co. v. Hockmeyer, 40 F.2d 99, 17 C.C.P.A., Patents, 1068; California Packing Corp. v. Tillman & Bendel, 40 F.2d 108, 17 C.C.P.A., Patents, 1048. The rule of these last two cases seems at first to be disapproved in Meredith Publishing Co. v. O. M. Scott & Sons Co., 88 F.2d 324, 326, 24 C.C.P.A., Patents, 956: “It is true that in both the preceding cases, there were expressions which, taken by themselves, and without regard to the context and the general purport of the opinions, might have indicated that the existence of confusion was the test by whieh we should determine whether the goods were of the same descriptive properties. However, the cases should not be so read.” Yet when the Meredith Publishing Co. case is considered as a whole, its general purport seems to be there is little likelihood of confusion so the goods are not of the same descriptive properties. Universal Paper Products Co. v. Bemis Bros. Bag Co., 116 F.2d 294, 28 C.C.P.A., Patents, 848. See concurring opinions in B. F. Goodrich Co. v. Hockmeyer, 40 F.2d 99, 104, 17 C.C.P.A., Patents, 1068, and California Packing Corp. v. Tillman & Bendel, 40 F.2d 108, 114, 17 C.C.P.A., Patents, 1048. Bor a converse situation see In re B. Manischewitz Co.," }, { "docid": "4179123", "title": "", "text": "in Meredith Publishing Co. v. O. M. Scott & Sons Co., 88 F.2d 324, 326, 24 C.C.P.A., Patents, 956: “It is true that in both the preceding cases, there were expressions which, taken by themselves, and without regard to the context and the general purport of the opinions, might have indicated that the existence of confusion was the test by whieh we should determine whether the goods were of the same descriptive properties. However, the cases should not be so read.” Yet when the Meredith Publishing Co. case is considered as a whole, its general purport seems to be there is little likelihood of confusion so the goods are not of the same descriptive properties. Universal Paper Products Co. v. Bemis Bros. Bag Co., 116 F.2d 294, 28 C.C.P.A., Patents, 848. See concurring opinions in B. F. Goodrich Co. v. Hockmeyer, 40 F.2d 99, 104, 17 C.C.P.A., Patents, 1068, and California Packing Corp. v. Tillman & Bendel, 40 F.2d 108, 114, 17 C.C.P.A., Patents, 1048. Bor a converse situation see In re B. Manischewitz Co., C.C.P.A., Patents, 123 F.2d 641. Cheek-Neal Coffee Co. v. Hal Dick Mfg. Co., 40 F.2d 106, 107, 17 C.C.P.A., Patents, 1103; Cross v. Williams Oil-O-Matic Heating Corporation, 48 F.2d 659, 660, 18 C.C.P.A., Patents, 1192; Williams Oil-O-Matic Heat. Corp. v. Westinghouse E. & M. Co., 62 F.2d 378, 379, 20 C.C.P.A., Patents, 775; Nims, Unfair Competition and Trade-Marks (3d ed. 1936) § 229(b), p. 621. Nims, Unfair Competition and Trade-Marks (3d ed. 1936) § 229, pp. 619-20. Elgin American Mfg. Co. v. Elizabeth Arden, Inc., 83 F.2d 687, 23 C.C.P.A., Patents, 1168. Elgin American Mfg. Co. v. Elizabeth Arden, Inc., 83 F.2d 687, 688, 23 C.C.P.A., Patents, 1168. “ . . .no one would seriously argue that the two publications are not merchandise of the same descriptive properties within the meaning of the statute.” These words appear in the opinion of the Assistant Commissioner, and the District Court quoted them to conclude its opinion. Forst Packing Co. v. C. W. Antrim & Sons, 118 F.2d 576, 28 C.C.P.A., Patents, 1005. STEPHENS, Associate Justice, dissenting. Since" }, { "docid": "12757101", "title": "", "text": "history of the Court’s interpretations of § 5(a)(6) and Sperry & Hutchinson’s comments on that history have, as we shall see, particular implications for interpreting the PSA. The original version of the FTCA, enacted in 1914, did not include the language empowering the FTC to prevent “unfair or deceptive acts or practices in commerce”; the Act provided power only to prevent “unfair methods of competition in commerce.” Federal Trade Commission Act, Pub.L. No. 63-203, § 5, 38 Stat. 717, 719 (1914) (emphasis added). In 1920 (the year before enactment of the PSA) the Supreme Court, over the dissent of Justice Bran-déis, one of the FTCA’s drafters, adopted a limiting interpretation of “unfair methods of competition,” restricting the covered practices to those “heretofore regarded as opposed to good morals because characterized by deception, bad faith, fraud or oppression, or as against public policy because of their dangerous tendency unduly to hinder competition or create monopoly.” FTC v. Gratz, 253 U.S. 421, 427, 40 S.Ct. 572, 64 L.Ed. 993 (1920); see Sperry & Hutchinson, 405 U.S. at 241, 92 S.Ct. 898. Later, in Federal Trade Commission v. Raladam Co., 283 U.S. 643, 649, 51 S.Ct. 587, 75 L.Ed. 1324 (1931), the Court made clear that an unfair method must be unfair to competitors. It said: [T]he word ‘competition’ imports the existence of present or potential competitors, and the unfair methods must be such as injuriously affect or tend thus to affect the business of these competitors' — that is to say, the trader whose methods are assailed as unfair must have present or potential rivals in trade whose business will be, or is likely to be, lessened or otherwise injured. Three years later, however, the Supreme Court changed course in Federal Trade Commission v. R.F. Keppel & Bro., Inc., 291 U.S. 304, 54 S.Ct. 423, 78 L.Ed. 814 (1934). As explained in Sperry & Hutchinson, 405 U.S. at 242-43, 92 S.Ct. 898, the Court in Keppel upheld an FTC cease-and-desist order against a candy marketing scheme on the ground that it “contravened public policy insofar as it tempted children to gamble and" }, { "docid": "3766657", "title": "", "text": "531, 532, 55 S.Ct. 837, 844, 79 L.Ed. 1570, after pointing out that strictly speaking the phrase at common law related “to the palming off of one’s goods as those of a rival trader,” went on to say: “In recent years, its scope has been extended. It has been held to apply to misappropriation as well as misrepresentation, to the selling of another’s goods as one’s own — to misappropriation of what equitably belongs to a competitor. International News Service v. Associated Press, 248 U.S. 215, 241, 242, 39 S.Ct. 68, 63 L.Ed. 211. Unfairness in competition has been predicated of acts which lie outside the ordinary course of business and are tainted by fraud or coercion or conduct otherwise prohibited by law. Id., 248 U.S. 215, page 258, 39 S.Ct. 68, 63 L.Ed. 211.” Here he dropped a footnote referring to the “cases collected in Nims on Unfair Competition and TradeMarks,” of which the latest edition shows even more clearly why this is an “unruly concept,” constantly expanding and now including (among other extensive analogies to our present case) a breach of a contract against a disclosure of a secret process. See 4th Ed. 1947, 30-35, 36, 40, 52-66, 407-411, and elsewhere passim. So the Court has noted the thirty-one or more diverse types of business practices now subject to the control of the Federal Trade Commission as “unfair competition,” F. T. C. v. Bunte Bros., 312 U.S. 349, 354, 61 S.Ct. 580, 85 L.Ed. 881; and that lawyers’ standby, the Federal Digest, under the rubric “Trade-Marks and Trade-Names and Unfair Competition,” has several score key numbers listing the many forms of unfair competition. The “palming-off doctrine” is only one sardine among all the,fish in the ocean. All this evidence really seems to me so extensive and complete that I hesitate to embroider the matter, although it may well be the nub of the case. How could it be otherwise in a society which lives by competition, 6 Corbin on Contracts § 1379 (1951), than that any business rivalry in selling is competition and any legally forbidden course, unfair" }, { "docid": "3135895", "title": "", "text": "received all the information to which they were entitled. The proceedings, considered as a whole, were extremely fair. Petitioners finally contend that this proceeding is not, as required by the statute, Title 15 U.S.C. § 45(b), 15 U.S.C.A. § 45(b), instituted in “the public interest.” Federal Trade Commission v. Raladam Co., 283 U.S. 643, 647, 51 S.Ct. 587, 75 L.Ed. 1324, 79 A.L.R. 1191. Upon this point also the Commission must be sustained. The basic fact of the case is that Schanzer is the only competitor of Muller and Franck in the production and distribution of domestic chicory. Since competition has substantially ceased between the petitioners, they would divide the field in a complete monopoly if Schanzer were to be eliminated. The record clearly shows that the petitioners have resorted to unfair and illegal practices within the meaning of the Act. Hence the proceeding aimed to suppress the practices is “in the interest of the public.” Federal Trade Commission v. R. F. Keppel & Bro., 291 U.S. 304, 54 S.Ct. 423, 425, 78 L.Ed. 814. Cf. National Broadcasting Co. v. United States, 319 U.S. 190, 224, 63 S.Ct. 997, 87 L.Ed. 1344, construing a similar provision of the Communications Act, Title 47 U.S.C. § 303(g) and (r), 47 U.S.C.A. § 303(g, r). To suppress elimination of competition and to prevent monopoly is in the public interest. Hershey Chocolate Corp. v. Federal Trade Commission, supra; White Bear Theatre Corp. v. State Theatre Corp., 8 Cir., 129 F.2d 600, 605. To protect the purchasing public against deceptive methods and misrepresentations by which purchasers are deceived is in the public interest. Federal Trade Commission v. Royal Milling Co., 288 U.S. 212, 217, 53 S.Ct. 335, 77 L.Ed. 706; Ford Motor Co. v. Federal Trade Commission, supra. That Schanzer individually may benefit from the Commission’s order is immaterial. Numerous attacks are made upon the form and validity of the order, but the foregoing considerations dispose of most of them. The order is authorized by the statute and is proper in scope. We consider here only the contention that it is void for indefiniteness due" }, { "docid": "14546454", "title": "", "text": "registration act Congress added nothing to and took nothing from the common-law principles applying or relating to trade-mark ownership. B. F. Goodrich Co. v. Kenilworth Mfg. Co., 17 C. C. P. A. (Patents) 1105; Sum-Maid Raisin Growers of California v. American Grocer Co., 17 C. C. P. A. (Patents) 1034, 1037, and numerous cases therein cited. In re Plymouth Motor Corp., 18 C. C. P. A. (Patents) 838. In the Swi-Maid Raisin Growers case, supra, we said: Congress, by the enactment of the trade-mark act of 1905, never intended to authorize the registration of a trade-mark the use of which could be prevented by resort to common law. (See California Packing Corp. v. Tillman & Bendel (Inc.), Patent Appeal No. 2341, 17 Ct. Cust. & Pat. Appls. 1048, 40 Fed. (2d) 108, and B. F. Goodrich Co. v. Olive E. Hockmeyer, (Zip-On Mfg. Co., substituted), Patent Appeal No. 2208, 17 Ct. Cust. & Pat. Appls. 1068, 40 Fed. (2d) 99, both decided concurrently herewith. Also see Yale Electric Co. v. Robertson, 26 Fed. (2d) 972, and Levy v. Uri, 31 App. D. C. 441.) Bearing upon this question also are declarations of American Steel Foundries v. Robertson, 269 U. S. 372. Trade-mark ownership primarily is a matter growing out of adoption and use of a mark, but in order actually to have valid title to a mark which the courts will protect other elements than these must be present. Use is an indispensable attribute, and it must be a legal use, justified upon sound principles of truth and morality. Such principles are basic in all law. We are at a loss to understand how one can acquire legal title— an ownership protectable in the courts — of a mark (there being no ownership except when predicated upon use)- which it is proposed to apply to a product and by it indicate that the product is of a particular character or quality when, in fact, it has ho such quality and then secure registration of the mark, on its face descriptive, upon'the statement that it is not descriptive because false and" }, { "docid": "4179121", "title": "", "text": "he believes that it does not go to the close resemblance of the marks. Although the Supreme Court in American Steel Foundries v. Robertson, 269 U.S. 372, 46 S.Ct. 160, 70 L.Ed. 317, was concerned with the next proviso which deals with appropriating corporate names for trade-marks, the Court expressed an historic rule of trade-mark law which affords background for the construction of this section. “The general doctrine is that equity not only will enjoin the appropriation and use of a trade-mark or trade-name, where it is completely identical with the name of the corporation, but will enjoin such appropriation and use where the resemblance is so close as to be likely to produce confusion as to such identity, to the injury of the corporation to which the name belongs.” Page 381 of 269 U.S. page 162 of 46 S.Ct., 70 L.Ed. 317. The Judge of this Court who applied the confusion criterion to determine if goods were of the same descriptive properties while saying he reasoned from effect to cause in California Packing Corp. v. Price-Booker Mfg. Co., 52 App.D.C. 259, 285 F. 993, saw the two steps two and one-half years earlier. “It is conceded that the goods are substantially identical. The only question, then, is as to whether or not the two marks are so similar as to be likely to produce confusion in the minds of purchasers with respect to the origin of the goods upon which they are used.” Proctor & Gamble Co. v. Eney Shortening Co., 50 App.D.C. 42, 267 F. 344. See Morrison Co. v. Cudahy Packing Co., 50 App.D.C. 236, 270 F. 358. Compare Nulyne Laboratories v. Electro-Alkaline Co., 52 App.D.C. 265, 285 F. 999, and Vacuum Oil Co. v. Gargoyle Textile Corp., 52 App.D.C. 268, 285 F. 1002. California Packing Corp. v. Price-Booker Mfg. Co., 52 App.D.C. 259, 285 F. 993. B. F. Goodrich Co. v. Hockmeyer, 40 F.2d 99, 17 C.C.P.A., Patents, 1068; California Packing Corp. v. Tillman & Bendel, 40 F.2d 108, 17 C.C.P.A., Patents, 1048. The rule of these last two cases seems at first to be disapproved" }, { "docid": "11489880", "title": "", "text": "action for damages therefor at the suit of the owner thereof.” Section 19 of the same Act, 33 Stat. 729, 15 U.S.C.A. § 99 gives power to grant injunctions in addition to the damages just provided for. A priori it might have been supposed that a narrow construction would have been given to the phrase “substantially the same descriptive properties”, so that, for example, a mark for locks could not be protected against its use for flashlights. However, borrowing from the general law of unfair competition (which they were simultaneously developing under the tolerant, then prevailing, rule of Swift v. Tyson), the lower federal courts have given to the statutory phrase the same scope they gave to the non-statutory law of trademarks. This was plainly held in Yale Electric Corp. v. Robertson, 2 Cir., 26 F.2d 972, 974 col. 2; Rosenberg Bros. & Co. v. Elliott, 3 Cir., 7 F.2d 962, 964; California Fruit Growers Exch. v. Windsor Beverages, Ltd., 7 Cir., 118 F.2d 149, 153. Compare American Steel Foundries v. Robertson, 269 U.S. 372, 381, 46 S.Ct. 160, 70 L.Ed. 317; B. F. Goodrich Co. v. Hockmeyer, 40 F.2d 99, 103, 17 C.C.P.A., Patents, 1068. It was implicit in a host of cases in every circuit, of which the following are typical: Mishawaka Rubber & Woolen Mfg. Co. v. S. S. Kresge Co., 6 Cir., 119 F.2d 316, 325; Mantle Lamp Co. of America v. Aladdin Mfg. Co., 7 Cir., 78 F.2d 426; Walgreen Drug Stores v. Obear-Nester Glass Co., 8 Cir., 113 F.2d 956, 960-961; Del Monte Special Food Co. v. California Packing Corp., 9 Cir., 34 F.2d 774. Thus, in interpreting Section 16 of the Trade Mark Act of 1905 the federal courts now have two equally valid groups of federal cases upon which to draw: first, those that expressly interpret the statutory phrase “substantially the same descriptive properties”; and second, those that (being older than Tompkins’ case) apply as part of a federal common law of unfair competition a doctrine extending trade-mark protection from the goods to which it was originally affixed to kindred goods. Both" }, { "docid": "13895663", "title": "", "text": "or potential competitors. There was no departure from the doctrine of the Winsted case. There was merely found lacking the existence of competition on the facts of the case. In the second Raladam case, Mr. Justice Black said: “One of the objects of the Act creating the Federal Trade Commission was to prevent potential injury by stopping unfair methods of competition in Lheir in-cipiency.” Federal Trade Commission v. Raladam Co., 316 U.S. 149, 152, 62 S.Ct. 966, 968, 86 L.Ed. 1336. The practices of which complaint was made in both the first and the second Raladam cases, however, were prior to the March 21, 1938, amendment of the Federal Trade Commission Act, which added the words “unfair or deceptive acts or practices in commerce” to the former phrase “unfair methods of competition in commerce.” This makes it now unnecessary that effect on competition be shown. For discussion of the effect of this amendment, see Pep Boys — Manny, Moe & Jack, Inc., v. Federal Trade Commission, 3 Cir., 122 F.2d 158, 161; Scientific Mfg. Co. v. Federal Trade Commission, 3 Cir., 124 F.2d 640, 643. The opinion of Mr. Justice Stone later Chief Justice, in Federal Trade Commission v. R. F. Keppel & Bro., Inc., 291 U.S. 304, 54 S.Ct. 423, 78 L.Ed. 814, has important bearing in the instant case; for there, a cease and desist order of the Federal Trade Commission was upheld upon a showing that a manufacturer sold and distributed in interstate commerce candy in a certain type package in assortments, so arranged and offered for sale as to avail of the element of chance as an inducement to the retail purchaser. It was declared (291 U.S. at page 313, 54 S.Ct. at page 426, 78 L.Ed. 814) that: “Without inquiring whether, as respondent contends, the criminal statutes imposing penalties on gambling, lotteries and the like, fail to reach this particular package in most or any of the states, it is clear that the practice is of the sort which the common law and criminal statutes have long deemed contrary to public policy.” As early as" }, { "docid": "21720956", "title": "", "text": "S.Ct. 572, 64 L.Ed. 993 (1920). Subsequent judicial and congressional action, however, overturned these attempts to narrowly circumscribe the FTC’s authority. In FTC v. R.F. Keppel & Bro., Inc., 291 U.S. 304, 54 S.Ct. 423, 78 L.Ed. 814 (1934), the FTC issued a cease and desist order under section 5 to prevent a manufacturer from selling candy using a marketing method which tempted children to gamble even though the marketing scheme involved no fraud or deception and could be adopted by competing manufacturers. In finding the practice contrary to public policy and thus unfair within the meaning of section 5, the Supreme Court stated: [W]e cannot say that the Commission’s jurisdiction extends only to those types of practices which happen to have been litigated before this court. Neither the language nor the history of the Act suggests that Congress intended to confine the forbidden methods to fixed and unyielding categories. Id. at 309-10, 54 S.Ct. at 425. Congress confirmed the Supreme Court’s view of the FTC’s authority by enacting the Wheeler-Lee Amendment in 1938. Ch. 49, § 3, 52 Stat. Ill (1938) (codified at 15 U.S.C. § 45(a)). This amendment broadened the language of section 5 to read: The Commission is empowered and directed to prevent persons, partnerships, or corporations ... from using unfair methods of competition in commerce and unfair or deceptive acts or practices in commerce. 15 U.S.C. § 45(a)(6) (emphasis added to indicate amended language). One of the primary purposes of this amendment was “to broaden the powers of the Federal Trade Commission over unfair methods of competition by extending its jurisdiction to cover unfair or deceptive acts or practices in commerce.” H.R.Rep. No. 1613, 75th Cong., 1st Sess. 1 (1937). The amendment was engendered in large measure by judicial decisions limiting the FTC’s authority to practices unfairly inhibiting competition. Id. at 3 (discussing Raladam decision); 83 Cong.Rec. 395 (1938) (“The trouble arises, and is continually increasing from court decisions construing the language of the existing law. These accumulated decisions over a period of years have so hedged in the Commission that there is great need for" }, { "docid": "23318519", "title": "", "text": "38, 7 U.S.C.A., c. 35, § 1301(a) (4). On the other hand, statutes like this are limited to parties “in commerce” or an equivalent. Federal Employers’ Liability Act, prior to the 1939 amendment 35 Stat. 65, 45 U.S.C.A. § 51; Federal Trade Commission Act, 38 Stat. 717, 15 U.S.C.A. § 44; U. S. Cotton Standards Act, 42 Stat. 1517, 7 U.S.C.A. § 62(b); U. S. Grain Standards Act, 39 Stat. 482, 7 U.S.C.A. § 72; Naval Stores Act, 42 Stat. 1435, 7 U.S.C.A. § 92(1) ; Importation of Adulterated Seeds Act, 37 Stat. 506, 44 Stat. 325, 7 U.S.C.A. § 116(f) (2) ; Interstate Transportation of Petroleum Products Act, 49 Stat. 30, 15 U.S.C.A. § 715a (3); Motor Carrier Act, 49 Stat. 543, 49 U.S.C. A. § 306. Since Congress has evinced explicitly its purpose to protect some interstate commerce activities which, in isolation, are merely local, the limited scope of the Act must be kept in mind. Federal Trade Commission v. Bunte Bros., Inc., 312 U.S. 349, 351, 61 S.Ct. 580, 85 L.Ed. 881. The commerce clause endows Congress with full and plenary power to do anything and everything necessary to protect interstate commerce. United States v. Wrightwood Dairies Co., 315 U.S. 110, at page 119, 62 S.Ct. 523, 86 L.Ed. -. The specific question is whether in the statute involved the Congress has seen fit to exercise all of its power. In view of the limitations present in the legislation, our question is whether employees are engaged in commerce or in production for commerce or in any process or occupation necessary to such production. Our first inquiry is whether employees whose activities relate to procurement of goods from other states and those receiving and unloading them at the warehouses are “in commerce.” Commerce includes more than transportation; it embraces all component parts of commercial intercourse among states. Foster-Fountain Packing Co. v. Haydel, 278 U.S. 1, 10, 49 S.Ct. 1, 73 L.Ed. 147. Goods purchased in one state for transportation to and delivery in another are included. Currin v. Wallace, 306 U.S. 1, 10, 59 S.Ct. 379, 83 L.Ed." }, { "docid": "1977398", "title": "", "text": "and that a proceeding would be in the public interest. That is a matter for the Commission. Where the Commission acts on some information, the scope of judicial review begins with the filing of the complaint. We do not explore the question whether a cease and desist order may be attacked on review for want of any evidence on which the Commission made its initial determination as no such situation is presented. The statute condemns any method of competition in interstate commerce which is contrary to public policy, Federal Trade Commission v. Beech Nut Packing Co., 257 U.S. 441, 42 S.Ct. 150, 66 L.Ed. 307, 19 A.L.R. 882; Wholesale Grocers’ Association v. Federal Trade Commission, 5 Cir., 277 F. 657; Walter H. Johnson Candy Co. v. Federal Trade Commission, 7 Cir., 78 F.2d 717; it interdicts any system of competitive merchandising in such commerce which uses or employs a lottery, gaming device, or gift device, Federal Trade Commission v. Keppel & Bro., 291 U.S. 304, 54 S.Ct. 423, 78 L.Ed. 814; and pushcards and punchboards are within that class, Hofeller v. Federal Trade Commission, 7 Cir., 82 F.2d 647; Federal Trade Commission v. F. A. Martoccio Company, 8 Cir., 87 F.2d 561; Federal Trade Commission v. Charles N. Miller Co., 1 Cir., 97 F.2d 563; Helen Ardelle, Inc. v. Federal Trade Commission, 9 Cir., 101 F.2d 718; Bunte Bros. v. Federal Trade Commission, 7 Cir., 104 F.2d 996; National Candy Co. v. Federal Trade Commission, supra. It is urged that the jurisdiction of the Commission is restricted to methods of competition as they affect competitors and the public; that it has no independent police powers; and that these proceedings should have been dismissed for the reason that the sale of chance candy at retail does not constitute competition with the sale of straight candy. The essence of a proceeding of this kind is the forbidding of the continued use of an unfair trade practice in commerce in competition with others. It necessarily follows that where it appears in the course of such a proceeding that competition does not exist the" } ]

[ { "docid": "13173803", "title": "", "text": "The petition for removal was filed on August 28, 1962. That filing was within twenty days after the return receipt card had been filed with the Clerk, but not within twenty days after the defendant received a copy of the amended petition. In opposing remand, defendant cites Parker v. Bond, 330 S.W.2d 121 (Mo. Sup.Ct.1959) contending that in that case “the Missouri Supreme Court held that service under § 506.240, et seq. is not complete until the registered return receipt card is filed”. From that premise, defendant argues that “the Circuit Court of Greene County had no jurisdiction against defendant Blankenship until the registered return card was filed”; that “defendant should not be required to file a petition for removal pri- or to that time”; and that “the removal time should date from the time State Court acquired jurisdiction of defendant”. Defendant principally relies on Alexander v. Peter Holding Co., (E.D.N.Y.1950) 94 F.Supp. 299. That case has not been followed. In fact, it has been expressly disapproved. See Richlin Advertising Corp. v. Central Florida Broadcasting Co., (S.D.N.Y.1954) 122 F.Supp. 507, 509; McCargo v. Steele, (W.D.Ark. 1957) 151 F.Supp. 435, 437; and French v. Banco Nacional de Cuba, (S.D.N.Y.1961), 192 F.Supp. 579, 581. In Mahony, Judge Ridge definitively determined that “the statute is clear and unequivocal in providing that the 20 days is to run from the receipt by the defendant, through service or otherwise, of a copy of the initial pleading”, and that “when the statute provides that the 20 days are to run from the receipt of a copy of the pleading by the defendant it means just that and we can see no reason for holding otherwise.” Judge Duncan and then Judge Whittaker concurred in that ruling because it represented a slight departure from former opinions by Judge Reeves. Ardison v. Villa, (10th Cir., 1957) 248 F.2d 226, 227, among other cases, cites Mahony with approval, and Professor Moore in 1A of Moore’s Federal Practice, 1235-36, indicates his agreement with Mahony by quoting extensively from Judge Ridge’s opinion in that case. The Congressional history of the 1948 amendment" } ]

[ { "docid": "8316586", "title": "", "text": "history of § 1446(b). Under this view, The 1949 amendment sought to eliminate th[e] unfairness [of the interaction of the prior rule with diverse state procedures] by providing a time limit which would operate with a greater degree of uniformity* throughout the federal system. ... Thus, the key to the time for removal became actual or constructive receipt by the defendant of the initial pleading setting forth the removable claim. French, 192 F.Supp. at 580; see also Tyler, 524 F.Supp. at 1213 (§ 1446(b) subordinates diverse state practices under a uniform rule of practice). This position is also supported by the leading commentators. See Wright, Miller and Cooper, 14A, Federal Practice and Procedure, § 3732 at 513, 516 (1985) (approach which ignores technicalities of state law as to completion of service or process is both “practically desirable and perfectly consistent” with the purposes of the removal statute. See also 1A Moore’s Federal Practice, 110.168[3.-5-3], at 577 (1986). The problem with this assertion of congressional intent, as with Love and its progeny, is that it claims too much. While the language of the statute does suggest a single national standard based upon notice, the congressional reports accompanying the 1949 amendment do not say that state service rules are irrelevant in determining commencement of the removal period. See 1949 U.S.Code Cong.Serv. at 1253-54 (S.Rep. No. 303), 1268 (H.R.Rep. No. 352); cf. Potter v. McCauley, 186 F.Supp. 146, 149 (D.C.Md.1960) (discussing operation of statute in four situations under Love approach). Rather, they simply express congressional desire to correct the problems that arose under the 1948 removal statute and repeat, more or less, the provision of the statute. This ambiguity in (or, perhaps more accurately, absence of) legislative history does not compel rejection of the Tyler position. It is well-established that removal statutes are to be construed narrowly and against removal. Shamrock Oil Corp. v. Sheets, 313 U.S. 100, 108-09, 61 S.Ct. 868, 872, 85 L.Ed. 1214 (1941); Illinois v. Kerr-McGee Chemical Corp., 677 F.2d 571, 576 (7th Cir.1982). See Tyler, 524 F.Supp. at 1213. This principle — when considered in light of the" }, { "docid": "13392516", "title": "", "text": "A problem arose in those states which allowed a plaintiff to commence a suit without filing a complaint. In such cases, the removal period could expire before the defendant received a copy of the complaint. Defendant would have to decide whether to petition for removal before knowing what the suit was all about. Thus, Congress revised § 1446(b).... This change was intended to expand the removal period in states which allowed plaintiff to commence a suit without filing a complaint. Plaintiff is still required to properly serve defendant. The “or otherwise” language pertains only to those states where plaintiff can commence a suit without filing or serving initial pleading until some time later. 630 F.Supp. at 333-34. While Thomason is certainly a plausible reading of the legislative history, many courts have been quick to note that the Thomason interpretation is at odds with the clear, unambiguous words of the statute. See, e.g., Conticommodity Services, Inc. v. Perl, 663 F.Supp. 27, 29 (N.D.Ill.1987); Kulbeth v. Woolnought, 324 F.Supp. 908, 910 (S.D.Tex.1971) (the notion that a complaint is “received” only after service is perfected “can be sustained only by reading into the statute a provision which is not only not there but which Congress seems deliberately to have omitted”), quoting Potter v. Kahn, 108 F.Supp. 593 (S.D.N.Y.1952); General Beverage Sales Co. v. Zonin, S.p.A., 589 F.Supp. 846, 848 (W.D.Wis.1984), quoting Maglio v. F.W. Woolworth Co., 542 F.Supp. 39 (E.D.Pa.1982) (“The statute specifically reads ‘receipt by the defendant’ and the statute clearly does not require service.”). Indeed, the plain language of the statute contradicts the sweeping conclusion of Tho-mason. Clearly, Congress could have intended to treat in the removal statute only those states which do not require the filing of a complaint to commence a suit, without also requiring a technically valid service of process to trigger the removal period. But if Congress intended valid service of process to be the only acceptable trigger to the thirty day removal period, it could easily have said so. The Love court, and subsequent courts advocating the “proper service” rule, add that allowing the removal period" }, { "docid": "13392519", "title": "", "text": "procedural choices at stake in any decision to remove — tends to undercut the removal right. 663 F.Supp. at 29. Indeed, in this case it is particularly telling that when defendant filed its removal petition and its motion to dismiss, it made no reference to improper service, and in fact failed to assert improper service as an obstacle to the petition. The attempted service here, though technically flawed, armed the defendant with the weapon of removability. Moreover, the defendant has presented to this Court no evidence of when “the proper parties” received the petition so that the Court might be able to determine how, if at all, the technically improper service impeded the defendant’s ability to timely file the removal petition. Having failed to challenge the validity of service of process either before or after removal, defendant can not now be heard to complain that the lack of proper service before removal somehow diminished its removal right. B. The “Receipt Rule”: A Better Approach In contrast to the “proper service” rule urged by the defendant, plaintiffs contend that the “receipt rule” is advocated by many courts, and should apply here. Under the “receipt rule”, the thirty day removal period commences when the defendant receives the initial pleading from the plaintiff, regardless of whether state service procedures have been followed. See, e.g., Conticommodity, supra; Kirby v. OMI Corp., 655 F.Supp. 219 (M.D.Fla.1987) (receipt of complaint by way of a technically flawed service of process triggers thirty day removal period); Tyler v. Prudential Ins. Co., 524 F.Supp. 1211 (W.D.Pa.1981) (The fact that service under state practice has not been perfected does not in and of itself prevent removal); Dial-in, Inc. v. ARO Corp., 620 F.Supp. 27 (N.D.Ill.1985) (service of process does not control removal under 28 U.S.C. § 1446); General Beverage Sales v. Zonin, S.p.A., 589 F.Supp. 846 (W.D.Wis.1984); Maglio v. F.W. Woolworth, 542 F.Supp. 39 (E.D.Pa.1982); Perimeter Lighting, Inc. v. Karlton, 456 F.Supp. 355 (N.D.Ga.1978) (receipt of initial pleading controls removability, whether or not state procedures were properly followed); Int’l Equity Crop. v. Pepper and Tanner, Inc., 323 F.Supp. 1107 (E.D.Pa.1971);" }, { "docid": "8316582", "title": "", "text": "the complaint. Defendant would have to decide whether to petition for removal before knowing what the suit was all about. Thus, Congress revised § 1446(b).... This change was intended to expand the removal period in states which allowed plaintiff to commence a suit without filing a complaint. Plaintiff is still required to properly serve defendant. The “or otherwise” language pertains only to those states where plaintiff can commence a suit without filing or serving initial pleading until some time later. Id. 630 F.Supp. at 333-34 (internal citations omitted). See also Love, 642 F.Supp. at 67-68. While Thomason’s reading of the original purposes behind the 1949 amendments to § 1446(b) is confirmed by the house and senate reports on the bill, its conclusion that the removal period commences only upon proper service is not. Such an interpretation simply contravenes the clear and unambiguous wording of the statute. See Kulbeth v. Woolnought, 324 F.Supp. 908, 910 (S.D.Tex.1971) (proposition that complaint is “received” only after service perfected “can be sustained only by reading into the statute a provision which is not only not there but which Congress seems deliberately to have omitted”), quoting Potter v. Kahn, 108 F.Supp. 593 (S.D.N.Y.1952); General Beverage Sales Co. v. Zonin, S.p.A., 589 F.Supp. 846, 848 (W.D.Wis.1984) quoting Maglio v. F.W. Woolworth Co., 542 F.Supp. 39 (E.D.Pa.1982) (“The statute specifically reads ‘receipt by the defendant,’ and the statute clearly does not require service.”) The Court of Appeals has recently reminded us that “the policy behind a statute and the statute itself need not be ... identical.” F.D.I.C. v. O’Neil, 809 F.2d 350, 353 (7th Cir.1987). Given the language of § 1446(b), I think that this is such a case. The second reason articulated by Love in support of its position suggests that a contrary holding would “diminish the right to removal by permitting a plaintiff to circumvent the already existing requirement of personal service through informal service.” Love, 542 at 68; Hunter, 643 F.Supp. at 170 (citing Love). I believe this argument is flawed. Commencing the removal period upon receipt by the defendant of a copy of the" }, { "docid": "14853533", "title": "", "text": "Courts which have adopted the “perfected process” rule also whole-heartedly adopted, without independent analysis, the Love court’s construction of the legislative history of the 1949 amendment to § 1446(b). As indicated above, however, not all courts that have been called upon to decide the “receipt” vs. “perfected process” issue agree with the Love position and have taken a diametrically opposite view of the issue. The opposing line of cases — led by Tyler v. Prudential Insurance Co., 524 F.Supp. 1211 (W.D.Pa.1981) — hold that formal service is not required to start the removal period; if after a complaint is filed in state court the defendant receives a copy of the complaint from which removability of the action can be ascertained, § 1446(b)’s thirty-day period commences with the date of receipt, even if that receipt occurs before formal and proper service of process is effectuated. Courts in the Third, Fourth, Sixth, Seventh, Eighth, Ninth and Tenth Circuits, and district courts in Florida have adopted this “receipt” rule. See, Pillin’s Place, Inc. v. Bank One, Akron, N.A., 771 F.Supp. 205 (N.D.Ohio 1991); Silverwood Estates Development limited Partnership v. Adcock, 793 F.Supp. 226 (N.D.Cal.1991); Lindley v. DePriest, 755 F.Supp. 1020 (S.D.Fla.1991); Schwartz Bros, Inc., v. Striped Horse Records, 745 F.Supp. 338 (D.Md.1990); Dawson v. Orkin Exterminating Co., 736 F.Supp. 1049 (D.Colo.1990); Imco USA, Inc. v. Title Ins. Co. of Minnesota, 729 F.Supp. 1322 (M.D.Fla.1990); Harding v. Allied Products Corp., 703 F.Supp. 51 (W.D.Tenn.1989); Pic-Mount Corp. v. Stoffel Seals Corp., 708 F.Supp. 1113 (D.Nev.1989); North Jersey Savings and Loan Ass’n v. Fidelity Deposit Co., 125 F.R.D. 96 (D.N.J.1988); Conticommodity Services, Inc. v. Perl, 663 F.Supp. 27 (N.D.Ill.1987); General Beverage Sales Co. v. Zonin S.P.A., 589 F.Supp. 846 (W.D.Wis.1984); Northern Illinois Gas Co. v. Airco Industrial Gases, 676 F.2d 270 (7th Cir.1982); Maglio v. F. W. Woolworth Co., 542 F.Supp. 39 (E.D.Pa.1982). These “receipt rule” courts reject the legislative history analysis of Love and its progeny. As recently explained by the Dis trict Court for the Northern District of Ohio in Pillin’s Place, Inc. v. Bank One, Akron, N.A., supra: The Defendants correctly note that" }, { "docid": "8316583", "title": "", "text": "which is not only not there but which Congress seems deliberately to have omitted”), quoting Potter v. Kahn, 108 F.Supp. 593 (S.D.N.Y.1952); General Beverage Sales Co. v. Zonin, S.p.A., 589 F.Supp. 846, 848 (W.D.Wis.1984) quoting Maglio v. F.W. Woolworth Co., 542 F.Supp. 39 (E.D.Pa.1982) (“The statute specifically reads ‘receipt by the defendant,’ and the statute clearly does not require service.”) The Court of Appeals has recently reminded us that “the policy behind a statute and the statute itself need not be ... identical.” F.D.I.C. v. O’Neil, 809 F.2d 350, 353 (7th Cir.1987). Given the language of § 1446(b), I think that this is such a case. The second reason articulated by Love in support of its position suggests that a contrary holding would “diminish the right to removal by permitting a plaintiff to circumvent the already existing requirement of personal service through informal service.” Love, 542 at 68; Hunter, 643 F.Supp. at 170 (citing Love). I believe this argument is flawed. Commencing the removal period upon receipt by the defendant of a copy of the initial pleading, rather than upon perfected service, in no way diminishes either the right to removal or to service. Whether a defendant removes to federal court or not, perfect service is necessary if the plaintiff is to maintain his action. Although the requirements of perfect service may be somewhat more flexible in federal court than in some state fora, they can hardly be called “informal.” See Fed.R. Civ.P. 4(c)(2)(C). Moreover, should a defendant wish to stand upon his right to the stricter state process rules, he may remain in the state forum and present a motion to quash there. It is difficult to see how this choice between state and federal service rules — which mirrors the procedural choices at stake in any decision to remove — tends to undercut the removal right. The Tyler Position In contrast to Love, several courts have foresworn reading § 1446(b) as commencing upon proper service of process. See Tyler v. Prudential Ins. Co., 524 F.Supp. 1211 (W.D.Pa.1981) (“the fact that service under state practice has not been perfected" }, { "docid": "13392520", "title": "", "text": "plaintiffs contend that the “receipt rule” is advocated by many courts, and should apply here. Under the “receipt rule”, the thirty day removal period commences when the defendant receives the initial pleading from the plaintiff, regardless of whether state service procedures have been followed. See, e.g., Conticommodity, supra; Kirby v. OMI Corp., 655 F.Supp. 219 (M.D.Fla.1987) (receipt of complaint by way of a technically flawed service of process triggers thirty day removal period); Tyler v. Prudential Ins. Co., 524 F.Supp. 1211 (W.D.Pa.1981) (The fact that service under state practice has not been perfected does not in and of itself prevent removal); Dial-in, Inc. v. ARO Corp., 620 F.Supp. 27 (N.D.Ill.1985) (service of process does not control removal under 28 U.S.C. § 1446); General Beverage Sales v. Zonin, S.p.A., 589 F.Supp. 846 (W.D.Wis.1984); Maglio v. F.W. Woolworth, 542 F.Supp. 39 (E.D.Pa.1982); Perimeter Lighting, Inc. v. Karlton, 456 F.Supp. 355 (N.D.Ga.1978) (receipt of initial pleading controls removability, whether or not state procedures were properly followed); Int’l Equity Crop. v. Pepper and Tanner, Inc., 323 F.Supp. 1107 (E.D.Pa.1971); Kulbeth v. Woolnought, 324 F.Supp. 908, 910 (S.D.Tex.1971); In re 73rd Precinct Station House, 329 F.Supp. 1175 (E.D.N.Y.1971); Barr v. Hunter, 209 F.Supp. 476 (W.D.Mo.1962); French v. Banco Nacional de Cuba, 192 F.Supp. 579 (S.D.N.Y.1961); Richlin Adv. Corp. v. Central Florida Broadcasting Co., 122 F.Supp. 507 (S.D.N.Y.1954); Potter v. Kahn, 108 F.Supp. 593 (S.D.N.Y.1952). Not surprisingly, proponents of the “receipt rule” also give content to the statute, in part, because of its legislative history. As the Conticommodity court noted, some cases have rested on Congress’ apparent desire to provide a uniform approach to removal. For example, in French, supra, the court stated: The 1949 amendment sought to eliminate th[e] unfairness [of the interaction of the prior rule with diverse state procedures] by providing a time limit which would operate with a greater degree of uniformity throughout the federal system. ... Thus, the key to the time for removal became actual or constructive receipt by the defendant of the initial pleading setting forth the removable claim. 192 F.Supp. at 580, quoted by Conticom-modity, 663 F.Supp. at" }, { "docid": "11365759", "title": "", "text": "620 F.Supp. 27 (N.D.Ill.1985) (service of process does not control removal under 28 U.S.C. § 1446); General Beverage, 589 F.Supp. at 846; Maglio, 542 F.Supp. at 39; Perimeter Lighting, Inc. v. Karlton, 456 F.Supp. 355 (N.D.Ga.1978) (receipt of initial pleading controls removability, whether or not state procedures properly followed); Int'l Equity Corp. v. Pepper & Tanner, Inc., 323 F.Supp. 1107 (E.D.Pa.1971); Kulbeth, 324 F.Supp. at 910; In re 73rd Precinct Station House, 329 F.Supp. 1175 (E.D.N.Y. 1971); Barr v. Hunter, 209 F.Supp. 476 (W.D.Mo.1962); French v. Banco Nacional de Cuba, 192 F.Supp. 579 (S.D.N.Y.1961); Richlin Adv. Corp. v. Cent. Florida Broadcasting Co., 122 F.Supp. 507 (S.D.N.Y.1954); Potter, 108 F.Supp. at 593. These cases do not require formal service of process before commencement of the removal period. Rather, “receipt” by defendant of an initial pleading will trigger the thirty-day period, provided that the pleading contains sufficient information from which the defendant can ascertain that the action is removable. See, e.g., Int’l Equity, 323 F.Supp. at 1109 (pleading should contain “notice of the State proceeding, the nature of it, the issues involved and the parties involved so that, with this information, the defendant can determine the removability of the action”). Two grounds may justify the Tyler approach. One is an alternative interpretation of the legislative history of section 1446(b). Under this view, The 1949 amendment sought to eliminate th[e] unfairness [of the interaction of the prior rule with diverse state procedures] by providing a time limit which would operate with a greater degree of uniformity throughout the federal system____ Thus, the key to the time for removal became actual or constructive receipt by the defendant of the initial pleading setting forth the removable claim. French, 192 F.Supp. at 580; see also Tyler, 524 F.Supp. at 1213 (§ 1446(b) subordinates diverse state practices under a uniform rule of practice.) As the Conticommodity court points out, reliance on this interpretation of congressional intent may be misplaced. “While the language of the statute does suggest a single rational standard based upon notice, the congressional reports accompanying the 1949 amendment do not say that state service" }, { "docid": "8316585", "title": "", "text": "does not in and of itself prevent removal”); Dial-In, Inc. v. ARO Corp., 620 F.Supp. 27 (N.D.Ill.1985) (Aspen, J.) (“Service of process does not control removal under 28 U.S.C. § 1446); General Beverage Sales v. Zonin, S.p.A., 589 F.Supp. 846 (W.D.Wis.1984); Maglio v. F.W. Woolworth, 542 F.Supp. 39 (E.D.Pa.1982); Perimeter Lighting, Inc. v. Karlton, 456 F.Supp. 355 (N.D.Ga.1978) (receipt of initial pleading controls removability, whether or not state procedures properly followed); Int’l Equity Corp. v. Pepper and Tanner, Inc., 323 F.Supp. 1107 (E.D.Pa.1971); Kulbeth v. Woolnought, 324 F.Supp. 908, 910 (S.D.Tex.1971); In re 73rd Precinct Station House, 329 F.Supp. 1175 (E.D.N.Y.1971); Barr v. Hunter, 209 F.Supp. 476 (W.D.Mo.1962); French v. Banco Nacional de Cuba, 192 F.Supp. 579 (S.D.N.Y.1961); Richlin Adv. Corp. v. Central Florida Broadcasting Co., 122 F.Supp. 507 (S.D.N.Y.1954); Potter v. Kahn, 108 F.Supp. 593 (S.D.N.Y.1952). The results in these cases may be justified on either of two grounds, although only the weaker of the two is usually discussed by the courts. That weaker argument is based on a different interpretation of the legislative history of § 1446(b). Under this view, The 1949 amendment sought to eliminate th[e] unfairness [of the interaction of the prior rule with diverse state procedures] by providing a time limit which would operate with a greater degree of uniformity* throughout the federal system. ... Thus, the key to the time for removal became actual or constructive receipt by the defendant of the initial pleading setting forth the removable claim. French, 192 F.Supp. at 580; see also Tyler, 524 F.Supp. at 1213 (§ 1446(b) subordinates diverse state practices under a uniform rule of practice). This position is also supported by the leading commentators. See Wright, Miller and Cooper, 14A, Federal Practice and Procedure, § 3732 at 513, 516 (1985) (approach which ignores technicalities of state law as to completion of service or process is both “practically desirable and perfectly consistent” with the purposes of the removal statute. See also 1A Moore’s Federal Practice, 110.168[3.-5-3], at 577 (1986). The problem with this assertion of congressional intent, as with Love and its progeny, is that it claims" }, { "docid": "23299713", "title": "", "text": "plaintiff to circumvent the already existing requirement of personal service through informal service. 542 F.Supp. at 67 (footnote omitted and citation omitted). In the opposing line of eases, the courts have adopted the “receipt rule,” which views the actual receipt by a defendant of a complaint as sufficient to commence the thirty-day period, irrespective of the technicalities of state service of process requirements. See Kerr v. Holland America-Line Westours, Inc., 794 F.Supp. 207 (E.D.Mich.1992); Trepel v. Kohn, Milstein, Cohen & Hausfeld, 789 F.Supp. 881 (E.D.Mich.1992); Pillin’s Place, Inc. v. Bank One, 771 F.Supp. 205 (N.D.Ohio 1991); Dawson v. Orkin Exterminating Co., 736 F.Supp. 1049 (D.Colo.1990); Conticommodity Servs., Inc. v. Perl, 663 F.Supp. 27, 30 (N.D.Ill.1987) (collecting cases adopting the receipt rule). These cases take a plain meaning approach to interpreting the language of the statute and reject the legislative history analysis of Love and its progeny. Earlier cases adopting the receipt rule based their position on a different interpretation of the legislative history of section 1446(b): The purpose of the 1949 amendment was to promote national uniformity in the triggering of the removal, period by relying on receipt of the initial pleading instead of formal service of process, which varied from state to state. See Tyler v. Prudential Ins. Co., 524 F.Supp. 1211, 1213 (W.D.Pa.1981); French v. Banco Nacional De Cuba, 192 F.Supp. 579 (S.D.N.Y.1961); 14A Wright, Miller & Cooper, Federal Practice & Procedure, § 3732, at 513. They concluded that the ambiguous legislative history does not compel the conclusion that service of process is necessary to commence the removal period. Beginning with Conticommodity Services, courts relied on a second and sounder rationale for adopting the receipt rule: overriding principles of statutory interpretation. The flaw in [the Love] line of reasoning is that it ignores the clear and unambiguous language of the statute. As the Supreme Court of the United States has frequently noted, “[i]nterpretation of a statute must begin with the statute’s language.” Mallard v. United States District Court for the Southern District of Iowa, 490 U.S. 296, 300, 109 S.Ct. 1814, 1817, 104 L.Ed.2d 318 (1989) (citations omitted)." }, { "docid": "8316584", "title": "", "text": "initial pleading, rather than upon perfected service, in no way diminishes either the right to removal or to service. Whether a defendant removes to federal court or not, perfect service is necessary if the plaintiff is to maintain his action. Although the requirements of perfect service may be somewhat more flexible in federal court than in some state fora, they can hardly be called “informal.” See Fed.R. Civ.P. 4(c)(2)(C). Moreover, should a defendant wish to stand upon his right to the stricter state process rules, he may remain in the state forum and present a motion to quash there. It is difficult to see how this choice between state and federal service rules — which mirrors the procedural choices at stake in any decision to remove — tends to undercut the removal right. The Tyler Position In contrast to Love, several courts have foresworn reading § 1446(b) as commencing upon proper service of process. See Tyler v. Prudential Ins. Co., 524 F.Supp. 1211 (W.D.Pa.1981) (“the fact that service under state practice has not been perfected does not in and of itself prevent removal”); Dial-In, Inc. v. ARO Corp., 620 F.Supp. 27 (N.D.Ill.1985) (Aspen, J.) (“Service of process does not control removal under 28 U.S.C. § 1446); General Beverage Sales v. Zonin, S.p.A., 589 F.Supp. 846 (W.D.Wis.1984); Maglio v. F.W. Woolworth, 542 F.Supp. 39 (E.D.Pa.1982); Perimeter Lighting, Inc. v. Karlton, 456 F.Supp. 355 (N.D.Ga.1978) (receipt of initial pleading controls removability, whether or not state procedures properly followed); Int’l Equity Corp. v. Pepper and Tanner, Inc., 323 F.Supp. 1107 (E.D.Pa.1971); Kulbeth v. Woolnought, 324 F.Supp. 908, 910 (S.D.Tex.1971); In re 73rd Precinct Station House, 329 F.Supp. 1175 (E.D.N.Y.1971); Barr v. Hunter, 209 F.Supp. 476 (W.D.Mo.1962); French v. Banco Nacional de Cuba, 192 F.Supp. 579 (S.D.N.Y.1961); Richlin Adv. Corp. v. Central Florida Broadcasting Co., 122 F.Supp. 507 (S.D.N.Y.1954); Potter v. Kahn, 108 F.Supp. 593 (S.D.N.Y.1952). The results in these cases may be justified on either of two grounds, although only the weaker of the two is usually discussed by the courts. That weaker argument is based on a different interpretation of the legislative" }, { "docid": "13392521", "title": "", "text": "Kulbeth v. Woolnought, 324 F.Supp. 908, 910 (S.D.Tex.1971); In re 73rd Precinct Station House, 329 F.Supp. 1175 (E.D.N.Y.1971); Barr v. Hunter, 209 F.Supp. 476 (W.D.Mo.1962); French v. Banco Nacional de Cuba, 192 F.Supp. 579 (S.D.N.Y.1961); Richlin Adv. Corp. v. Central Florida Broadcasting Co., 122 F.Supp. 507 (S.D.N.Y.1954); Potter v. Kahn, 108 F.Supp. 593 (S.D.N.Y.1952). Not surprisingly, proponents of the “receipt rule” also give content to the statute, in part, because of its legislative history. As the Conticommodity court noted, some cases have rested on Congress’ apparent desire to provide a uniform approach to removal. For example, in French, supra, the court stated: The 1949 amendment sought to eliminate th[e] unfairness [of the interaction of the prior rule with diverse state procedures] by providing a time limit which would operate with a greater degree of uniformity throughout the federal system. ... Thus, the key to the time for removal became actual or constructive receipt by the defendant of the initial pleading setting forth the removable claim. 192 F.Supp. at 580, quoted by Conticom-modity, 663 F.Supp. at 30. Key scholars seem to agree. See C. Wright, A. Miller, & E. Cooper, 14A Federal Practice and Procedure § 3732, at p. 516 (1985) (\"Technicalities of state law as to the completion of service of process are ignored, just as state law generally is disregarded, when removal is considered. This approach is both practically desirable and perfectly consistent with the purposes and language of the federal removal statute.”); 1A Moore’s Federal Practice, 0.168[3.—.5—3]. at 577 (1986) (Removal petition must be filed “within a definite, fairly ascertainable, and relatively short time period under the standards stated therein; and, unlike its predecessor, the amended paragraph does not refer to ‘commencement of the action or service of process.’ ”). Perhaps the strongest argument in favor of the “receipt rule”, however, aside from what this Court takes to be the plain meaning of the statute itself, is that the Su preme Court has specifically directed lower courts to construe removal statutes strictly, against removal and in favor of remand. Shamrock Oil Corp., supra. This central idea, combined with" }, { "docid": "20972586", "title": "", "text": "1949 U.S.Code Congressional Service 1268; Moore’s Commentary on the U. S. Judicial Code 272-73 (1949). Based on some of the state rules, a defendant might be required to file his petition before he knew what the suit was about. See 1949 U.S. Code Congressional Service 1254. The 1949 amendment, 63 Stat. 101, sought to eliminate this unfairness by providing a time limit which would operate with a greater degree of uniformity throughout the federal system. Defendant argues that Congress did not intend to ignore state procedural requirements and that the intent was to provide for compliance with the diverse state laws. Certainly Congress did not propose to eliminate all reference to state procedures, nor could it practicably have done so had it wished. But rather than rely on compliance with the different practices of the states concerning commencement and service of process, Congress intended, through a fixed twenty-day period, to harmonize the removal time with divergent state rules. See Richlin Advertising Corp. v. Central Florida Broadcasting Co., D.C.S.D.N.Y. 1954, 122 F.Supp. 507, 509. Thus, the key to the time for removal became actual or constructive receipt by defendant of the initial pleading setting forth the removable claim. The purpose of computing removal from receipt is “to enable the defendant to intelligently ascertain removability from the face of such initial pleading * * Ardison v. Villa, 10 Cir., 1957, 248 F.2d 226, 227. Defendant’s position “can be sustained only by reading into the statute a provision which is not only not there but which Congress seems deliberately to have omitted.” Potter v. Kahn, D.C.S.D.N.Y. 1952, 108 F.Supp. 593, 594. Neither do the decided cases in this district support defendant’s reading of the statute. Potter v. Kahn, supra; Richlin Advertising Corp. v. Central Florida Broadcasting Co., supra; Mann v. Compania Petrolera Trans-Cuba, S.A., 60 Civ. 4732, D.C.S.D.N.Y. February 28, 1961; see McCargo v. Steele, D.C.W.D. Ark.1957, 151 F.Supp. 435. In fact, they specifically reject the proposition advanced by defendant. Defendant attempts to distinguish Potter v. Kahn, supra, on the spurious ground that the legislative history was not brought to the court’s attention." }, { "docid": "1279672", "title": "", "text": "on the complaint provided defendant. ■ Consequently, even though the complaint had not yet been filed with the clerk of the state court, it was pending and, therefore, removable. Several early cases predicated removability on proper service of process under state law. Merz v. Dixon, 95 F.Supp. 193 (D.Kan.1951); Alexander v. Peter Holding Co., 94 F.Supp. 299 (E.D.N.Y.1950). However, these cases seemingly ignore the legislative intent to avoid the peculiarities of state practice and provide one rule for uniform application in the federal courts. See 1A Moore’s Federal Practice ¶ 0.168[3-5], at 467 (2d ed. 1974). Fortunately, it is now settled that service of process under state law does not control for removal purposes. The fact that service under state practice has not been perfected does not in and of itself prevent removal. It is “receipt” of the “initial pleading” pursuant to section 1446 which controls removability, whether or not state procedures are properly followed. See generally International Equity Corp. v. Pepper & Tanner, Inc., 323 F.Supp. 1107 (E.D.Pa.1971); Kurtz v. Harris, 245 F.Supp. 752 (S.D.Tex.1965); Benson v. Bradley, 223 F.Supp. 669 (D.Minn.1963); Barr v. Hunter, 209 F.Supp. 476 (W.D.Mo. 1962); Potter v. Kahn, 108 F.Supp. 593 (S.D.N.Y.1952). In sum, the defendant was enjoined from certain acts by a state court pending resolution of a dispute. The plaintiff at the hearing provided defendant with a copy of the complaint on which the court’s order was based. Defendant understandably sought immediate relief by filing a petition for removal to this court. Defendant, however, found that no suit was filed with the clerk. In effect, then, the state court had taken action on a case not yet of record. To deny defendant’s right to remove in such a situation would allow plaintiff to effectively block defendant’s right to remove until such time as plaintiff sees fit to file the complaint. Such a holding would work to defeat the removal statute’s purpose and allow a plaintiff to keep an action, otherwise removable, in the state court even after the state court had exercised its power by enjoining the defendant. Here there has been" }, { "docid": "13104761", "title": "", "text": "to include a full copy of the contract on which Dial-In’s suit is based, as required by Ill.Rev.Stat. eh. 110, 112-606. Indeed, although the copy of the complaint filed in state court included a full copy of the parties’ contract, the service copy was missing two pages (the second and the last) of the four-page document. ARO argues that the thirty-day period for removal did not begin to run until July 15, 1985, when ARO informed Dial-In of the missing pages and Dial-In supplied them to ARO, or at least until June 19, 1985, when ARO filed its general appearance in state court. ARO also points out that on June 19, 1985, the parties filed a stipulation giving ARO until July 19, 1985, to answer or otherwise plead to Dial-In’s complaint. Dial-In responds initially by arguing that the failure to attach a complete copy of the parties’ contract to the service copy of the complaint was not a fatal defect — it did not in any way impair the jurisdiction of the state court over ARO’s person. Ill.Rev. Stat. ch. 110A, ¶ 104(d); Hubbartt v. Frank, 36 Ill.App.3d 529, 344 N.E.2d 496, 499 (5th Dist.1976). More to the point is Dial-In’s assertion that ARO had been effectively notified of the nature of the suit and the contract in question on May 23, 1985. Service of process under state law does not control removal under 28 U.S.C. § 1446. Tyler v. Prudential Insurance Co. of America, 524 F.Supp. 1211, 1213 (W.D.Pa.1981); Perimeter Lighting, Inc. v. Karlton, 456 F.Supp. 355, 359 (N.D.Ga.1978). Rather, “[a]ll that is required is that the defendant receives, through service or otherwise, a copy of an ‘initial pleading’ from which the defendant can ascertain that the case is one which is or has become removable.” Tyler, 524 F.Supp. at 1213, citing Internaional Equity Corp. v. Pepper & Tanner, Inc., 323 F.Supp. 1107, 1109 (E.D.Pa.1971); see also Mielke v. Allstate Ins. Co., 472 F.Supp. 851, 853 (E.D.Mich.1979); Perimeter, 456 F.Supp. at 358. If ARO could have intelligently determined removability from the papers it received with the May 23 summons," }, { "docid": "13392517", "title": "", "text": "is “received” only after service is perfected “can be sustained only by reading into the statute a provision which is not only not there but which Congress seems deliberately to have omitted”), quoting Potter v. Kahn, 108 F.Supp. 593 (S.D.N.Y.1952); General Beverage Sales Co. v. Zonin, S.p.A., 589 F.Supp. 846, 848 (W.D.Wis.1984), quoting Maglio v. F.W. Woolworth Co., 542 F.Supp. 39 (E.D.Pa.1982) (“The statute specifically reads ‘receipt by the defendant’ and the statute clearly does not require service.”). Indeed, the plain language of the statute contradicts the sweeping conclusion of Tho-mason. Clearly, Congress could have intended to treat in the removal statute only those states which do not require the filing of a complaint to commence a suit, without also requiring a technically valid service of process to trigger the removal period. But if Congress intended valid service of process to be the only acceptable trigger to the thirty day removal period, it could easily have said so. The Love court, and subsequent courts advocating the “proper service” rule, add that allowing the removal period to be triggered by anything less than proper service would “diminish the right to removal by permitting a plaintiff to circumvent the already existing requirement of personal service through informal service.” 542 F.Supp. at 68. This notion seems rather flawed. The court in Conticommodity, supra, met it head-on: Commencing the removal period upon receipt by the defendant of a copy of the initial pleading, rather than upon perfected service, in no way diminishes either the right to removal or to service. Whether a defendant removes to federal court or not, perfect service is necessary if the plaintiff is to maintain his action. Although the requirements of perfect service may be somewhat more flexible in federal court than in some state fora, they can hardly be called ‘informal.’ Moreover, should a defendant wish to stand upon his right to the stricter state process rules, he may remain in the state forum and present a motion to quash there. It is difficult to see how this choice between state and federal service rules — which mirrors the" }, { "docid": "13104762", "title": "", "text": "ARO’s person. Ill.Rev. Stat. ch. 110A, ¶ 104(d); Hubbartt v. Frank, 36 Ill.App.3d 529, 344 N.E.2d 496, 499 (5th Dist.1976). More to the point is Dial-In’s assertion that ARO had been effectively notified of the nature of the suit and the contract in question on May 23, 1985. Service of process under state law does not control removal under 28 U.S.C. § 1446. Tyler v. Prudential Insurance Co. of America, 524 F.Supp. 1211, 1213 (W.D.Pa.1981); Perimeter Lighting, Inc. v. Karlton, 456 F.Supp. 355, 359 (N.D.Ga.1978). Rather, “[a]ll that is required is that the defendant receives, through service or otherwise, a copy of an ‘initial pleading’ from which the defendant can ascertain that the case is one which is or has become removable.” Tyler, 524 F.Supp. at 1213, citing Internaional Equity Corp. v. Pepper & Tanner, Inc., 323 F.Supp. 1107, 1109 (E.D.Pa.1971); see also Mielke v. Allstate Ins. Co., 472 F.Supp. 851, 853 (E.D.Mich.1979); Perimeter, 456 F.Supp. at 358. If ARO could have intelligently determined removability from the papers it received with the May 23 summons, then the thirty-day statutory period began to run on that date. We agree with Dial-In that the papers served on ARO on May 23, even with two pages of the contract missing, did in fact reveal that the case might be removed to federal court. This Court could exercise subject matter jurisdiction in this case only by virtue of the parties’ diversity of citizenship, pursuant to 28 U.S.C. § 1332(a). The initial pleading which ARO received on May 23 quite clearly alleged that the parties are citizens of different states and that the amount in controversy exceeds $10,-000. Thus, ARO could have determined from the outset that this action was removable, and the thirty-day period established in § 1446(b) began to run on May 23. Consequently, ARO’s July 19 petition for removal is untimely. The fact that ARO filed a general appearance on June 19 is irrelevant to the question of removability. If anything, ARO’s appearance constituted a waiver of any objections it may have had to the May 23 service of process. E.g., Gutow" }, { "docid": "11365757", "title": "", "text": "to have omitted”), quoting Potter v. Kahn, 108 F.Supp. 593 (S.D.N.Y. 1952); Gen. Beverage Sales Co. v. Zonin S.P.A., 589 F.Supp. 846, 848 (W.D.Wis. 1984) (“The statute specifically reads ‘receipt by the defendant,’ and the statute clearly does not require service.”) quoting Maglio v. F. W. Woolworth Co., 542 F.Supp. 39 (E.D.Pa.1982). The second reason articulated in Love suggests that failing to require formal service would “diminish the right to removal by permitting a plaintiff to circumvent the already existing requirement of personal service through informal service.” Love, 542 F.Supp. at 68; Hunter, 643 F.Supp. at 170 (citing Love). We concur with the court in Conticommodity Serv. v. Perl, 663 F.Supp. 27, 29 (N.D.Ill.1987) that this argument is unpersuasive. The fact that removal requirements are not identical to state service requirements in no way allows a plaintiff to engage in “chicanery” by subverting service requirements or the right to remove. “Whether a defendant removes to federal court or not, perfect service is necessary if the plaintiff is to maintain his action.” Id. When deciding whether to remove defendants often must weigh a number of federal and state procedural differences. However, these differences do not undercut the removal right or subvert state service requirements. THE TYLER APPROACH In contrast to the Love position, many courts have followed the Tyler approach, which is based on a more literal reading of section 1446(b). Tyler, 524 F.Supp. at 1211 (W.D.Pa.1981) (“the fact that service under state practice has not been perfected does not in and of itself prevent removal”). See Harding v. Allied Prod. Corp., 703 F.Supp. 51 (W.D.Tenn.1989) (adopting Tyler approach); Beckley, Singleton, DeLanoy, Jemison & List, Chartered v. Spademan, 694 F.Supp. 769 (D.Nev.1988) (removal period began upon receipt of initial pleading, though service was defective); Kirby v. Omi Corp., 655 F.Supp. 219 (M.D.Fla.1987) (receipt by defendant of complaint, although not adequate service, began removal period because defendant “was able intelligently to determine” that cause was removable); Conticommodity 663 F.Supp. at 27 (receipt of initial pleading begins removal period, irrespective of technicalities of state service of process law); Dial-In, Inc. v. ARO Corp.," }, { "docid": "11365758", "title": "", "text": "to remove defendants often must weigh a number of federal and state procedural differences. However, these differences do not undercut the removal right or subvert state service requirements. THE TYLER APPROACH In contrast to the Love position, many courts have followed the Tyler approach, which is based on a more literal reading of section 1446(b). Tyler, 524 F.Supp. at 1211 (W.D.Pa.1981) (“the fact that service under state practice has not been perfected does not in and of itself prevent removal”). See Harding v. Allied Prod. Corp., 703 F.Supp. 51 (W.D.Tenn.1989) (adopting Tyler approach); Beckley, Singleton, DeLanoy, Jemison & List, Chartered v. Spademan, 694 F.Supp. 769 (D.Nev.1988) (removal period began upon receipt of initial pleading, though service was defective); Kirby v. Omi Corp., 655 F.Supp. 219 (M.D.Fla.1987) (receipt by defendant of complaint, although not adequate service, began removal period because defendant “was able intelligently to determine” that cause was removable); Conticommodity 663 F.Supp. at 27 (receipt of initial pleading begins removal period, irrespective of technicalities of state service of process law); Dial-In, Inc. v. ARO Corp., 620 F.Supp. 27 (N.D.Ill.1985) (service of process does not control removal under 28 U.S.C. § 1446); General Beverage, 589 F.Supp. at 846; Maglio, 542 F.Supp. at 39; Perimeter Lighting, Inc. v. Karlton, 456 F.Supp. 355 (N.D.Ga.1978) (receipt of initial pleading controls removability, whether or not state procedures properly followed); Int'l Equity Corp. v. Pepper & Tanner, Inc., 323 F.Supp. 1107 (E.D.Pa.1971); Kulbeth, 324 F.Supp. at 910; In re 73rd Precinct Station House, 329 F.Supp. 1175 (E.D.N.Y. 1971); Barr v. Hunter, 209 F.Supp. 476 (W.D.Mo.1962); French v. Banco Nacional de Cuba, 192 F.Supp. 579 (S.D.N.Y.1961); Richlin Adv. Corp. v. Cent. Florida Broadcasting Co., 122 F.Supp. 507 (S.D.N.Y.1954); Potter, 108 F.Supp. at 593. These cases do not require formal service of process before commencement of the removal period. Rather, “receipt” by defendant of an initial pleading will trigger the thirty-day period, provided that the pleading contains sufficient information from which the defendant can ascertain that the action is removable. See, e.g., Int’l Equity, 323 F.Supp. at 1109 (pleading should contain “notice of the State proceeding, the nature" }, { "docid": "11365756", "title": "", "text": "removal period. Thomason, 630 F.Supp. at 333-34 (citations omitted); see also Love, 542 F.Supp. at 67-68. While Thomason’s explanation of the purposes behind the amendment is consistent with the house and senate reports on the bill, its conclusion that the “or otherwise” language is intended only for those states following the “New York rule” is not. Whatever the congressional impetus for the amendment, if Congress had intended to require service, in all circumstances, or limit the “or otherwise” language to application in certain states, it surely could have written the statute explicitly to achieve that result. By continuing to require service of process, in addition to defendant’s receipt of the complaint, Love and its progeny impose prerequisites to removal that section 1446(b) does not. These prerequisites contravene the clear and unambiguous wording of the statute. See Kulbeth v. Woolnought, 324 F.Supp. 908, 910 (S.D.Tex.1971) (proposition that complaint is “received” only after service perfected “can be sustained only by reading into the statute a provision which is not only not there but which Congress seems deliberately to have omitted”), quoting Potter v. Kahn, 108 F.Supp. 593 (S.D.N.Y. 1952); Gen. Beverage Sales Co. v. Zonin S.P.A., 589 F.Supp. 846, 848 (W.D.Wis. 1984) (“The statute specifically reads ‘receipt by the defendant,’ and the statute clearly does not require service.”) quoting Maglio v. F. W. Woolworth Co., 542 F.Supp. 39 (E.D.Pa.1982). The second reason articulated in Love suggests that failing to require formal service would “diminish the right to removal by permitting a plaintiff to circumvent the already existing requirement of personal service through informal service.” Love, 542 F.Supp. at 68; Hunter, 643 F.Supp. at 170 (citing Love). We concur with the court in Conticommodity Serv. v. Perl, 663 F.Supp. 27, 29 (N.D.Ill.1987) that this argument is unpersuasive. The fact that removal requirements are not identical to state service requirements in no way allows a plaintiff to engage in “chicanery” by subverting service requirements or the right to remove. “Whether a defendant removes to federal court or not, perfect service is necessary if the plaintiff is to maintain his action.” Id. When deciding whether" } ]

[ { "docid": "23312725", "title": "", "text": "aiding and abetting (18 U.S.C. § 2), and there is no requirement that an aider and abettor play a “substantial” role in the crime. United States v. Wiebold, 507 F.2d 932 (8th Cir.1974); United States v. Bradley, 421 F.2d 924 (6th Cir.1969). 4. The government failed to produce sufficient evidence to support beyond a reasonable doubt a finding of guilty. This last argument of defendants is little more than a reprise of their other arguments. A defendant claiming “insufficiency of the evidence bears a very heavy burden.” United States v. Soto, 716 F.2d 989, 991 (2nd Cir.1983). On review, all evidence must be construed in a manner most favorable to the government. United States v. Green, 548 F.2d 1261, 1266 (6th Cir.1977). Circumstantial evidence alone is sufficient to sustain a conviction and such evidence need not remove every reasonable hypothesis except that of guilt. United States v. Stone, 748 F.2d 361 (6th Cir.1984). Here the jury was presented with ample evidence from which they could conclude beyond a reasonable doubt defendants’ guilt. Vernon was on the truck and was one of only two persons who could have taken the money. The other person was cleared by subsequent investigation, while Vernon and his girlfriend, Lorena, went on a cash spending binge with bills in the exact denominations of the bills which were stolen. Neither defendant had any past substantial income and both offered inconsistent and false explanations for the source of their funds. The trial court correctly refused to grant defendants’ motions for acquittal made at the close of the government’s case and after the jury verdict. The jury verdict of guilty is affirmed as to both defendants. APPENDIX A APPENDIX B APPENDIX C . The two defendants married in 1982. . The government’s summary charts showing defendants’ income and expenditures for the relevant period are reproduced as Appendices A, B, and C to this opinion. . For example, Vernon said some of his money came from illegal marijuana sales but then later changed his story and said he had not sold any marijuana since the birth of his last child" } ]

[ { "docid": "14959473", "title": "", "text": "the specific intent element of a 21 U.S.C. § 841(a)(1) possession crime (whether substantive or inchoate), i.e., an intent to distribute the possessed drugs. See id. at *5-6. Because we discuss relevant aspects of the district court’s reasoning in the next section of this opinion, we do not detail it here. II. Discussion A. Standard of Review We review a challenged judgment of acquittal notwithstanding a guilty verdict de novo, applying the same standard of constitutional sufficiency as the district court. See United States v. Hawkins, 547 F.3d 66, 70-71 (2d Cir.2008); United States v. Florez, 447 F.3d 145, 154 (2d Cir.2006). A defendant challenging the sufficiency of the evidence “bears a heavy burden,” United States v. Aguilar, 585 F.3d at 656, because a reviewing court must sustain the jury’s guilty verdict if “viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt,” Jackson v. Virginia, 443 U.S. at 319, 99 S.Ct. 2781 (emphasis in original). “Under this stern standard, a court, whether at the trial or appellate level, may not usurp the role of the jury by substituting its own determination of the weight of the evidence and the reasonable inferences to be drawn for that of the jury.” United States v. MacPherson, 424 F.3d 183, 187 (2d Cir.2005) (internal quotation marks, citations, brackets, and ellipsis omitted). Rather, a court may enter a judgment of acquittal only if “the evidence that the defendant committed the crime alleged is nonexistent or so meager that no reason able jury could find guilt beyond a reasonable doubt.” Id. (internal quotation marks omitted) (emphasis added). B. The Specific Intent Element of § 841(a)(1) Possession Crimes Title 21 U.S.C. § 846 makes it a crime for any person to “attempt[ ] or conspire! ] to commit any offense defined in this sub-chapter.” Among the offenses defined in 21 U.S.C. § 841(a)(1) is the knowing possession of a controlled substance “with intent to ... distribute.” This is in contrast to 21 U.S.C. § 844, which makes" }, { "docid": "2977699", "title": "", "text": "Count Two, a Class A Misdemeanor, to time served (imprisonment for approximately seven weeks), supervised release for one year, and a mandatory assessment of $25.00. ANALYSIS I. The Rule 29 Standard Federal Rule of Criminal Procedure 29(a) allows a district court to enter a judgment of acquittal with respect to “any offense for which the evidence is insufficient to sustain a conviction.” We review the grant or denial of a judgment of acquittal de novo, and we apply the same standards governing the sufficiency of the evidence as are applied by a district court. United States v. Jackson, 335 F.3d 170, 180 (2d Cir.2003); United States v. Reyes, 302 F.3d 48, 52-53 (2d Cir.2002). Accordingly, “the very nature of ... motions [for acquittal pursuant to Rule 29] is to question the sufficiency of the evidence to support a conviction.” United States v. Gju-rashaj, 706 F.2d 395, 399 (2d Cir.1983). The test established by the Supreme Court requires us to determine “whether, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt.” Jackson v. Virginia, 443 U.S. 307, 319, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979). Put another way, “[a] court may enter a judgment of acquittal only if the evidence that the defendant committed the crime alleged is nonexistent or so meager that no reasonable jury could find guilt beyond a reasonable doubt.” United States v. Guadagna, 183 F.3d 122, 130 (2d Cir.1999) (internal quotation marks omitted). In assessing the evidence, a court is constrained to bear in mind that Rule 29 “does not provide [it] with an opportunity to substitute its own determination of ... the weight of the evidence and the reasonable inferences to be drawn for that of the jury.” Id. at 129 (internal quotation marks omitted; alterations in original). Where a jury has rendered a verdict of guilty, the duty of a court passing on a Rule 29 motion is to “review all of the evidence presented at trial in the light most favorable to the" }, { "docid": "8144649", "title": "", "text": "we conclude that Appellants were not denied due process of law or the protections of Rule 6(e)(2)(A) and we decline to vacate their convictions for those reasons. We now turn to the merits of Appellants’ remaining claims. B. Sufficiency of the Evidence on the Honest Services Fraud and Bribery Counts After trial, Bryant and Gallagher challenged the sufficiency of the evidence to support their honest services fraud and bribery convictions in a motion for a judgment of acquittal. Fed.R.Crim.P. 29. The District Court denied their motion, finding that the record supported the jury’s verdict. On appeal, they again challenge the sufficiency of the evidence to support their convictions. We review a sufficiency of the evidence challenge de novo, viewing the evidence in the light most favorable to the prosecution. United States v. Miller, 527 F.3d 54, 60 (3d Cir.2008). Appellants have a heavy burden to carry: “[w]e will overturn a verdict only ‘if no reasonable juror could accept evidence as sufficient to support the conclusion of the defendant’s guilt beyond a reasonable doubt.’ ” United States v. Anderskow, 88 F.3d 245, 251 (3d Cir.1996) (quoting United States v. Coleman, 811 F.2d 804, 807 (3d Cir.1987)); see also Wright v. West, 505 U.S. 277, 296-97, 112 S.Ct. 2482, 120 L.Ed.2d 225 (1992) (same). We do not believe Appellants have met that burden. Our Court has defined the elements of traditional mail fraud as follows: “To prove mail fraud, the government must establish (1) the defendant’s knowing and willful participation in a scheme or artifice to defraud, (2) with the specific intent to defraud, and (3) the use of the mails ... in furtherance of the scheme.” United States v. Kemp, 500 F.3d 257, 279 (3d Cir.2007) (citation and internal quotation marks omitted). “[T]he term ‘scheme or artifice to defraud’ includes [one] to deprive another of the intangible right of honest services.” Id. (citing 18 U.S.C. § 1346). Bribery, “where a [public official] was paid for a particular decision or action,” is one type of honest services fraud. Id. (quoting United States v. Antico, 275 F.3d 245, 263 (3d Cir.2001)) (alterations in" }, { "docid": "16433951", "title": "", "text": "and one count of tax evasion. A court reviewing for sufficiency of the evidence must first “view[ ] the evidence in the light most favorable to the prosecution” and then determine whether “this evidence, so viewed, is adequate to allow any rational trier of fact to find the essential elements of the crime beyond a reasonable doubt.” United States v. Nevils, 598 F.3d 1158, 1163-64 (9th Cir.2010) (en banc) (alteration and citation omitted). When “faced with a record of historical facts that supports conflicting inferences” a reviewing court “must presume — even if it does not affirmatively appear in the record — that the trier of fact resolved any such conflicts in favor of the prosecution, and must defer to that resolution.” Jackson v. Virginia, 443 U.S. 307, 326, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979). Reversal is warranted when the evidence so construed “may still be so supportive of innocence that no rational juror could conclude that the government proved its case beyond a reasonable doubt” or is “insufficient to establish every element of the crime.” Nevils, 598 F.3d at 1167. Applying these standards to the facts of this case, we conclude there was sufficient evidence to support conviction on all counts. A. Materiality in Securities Fraud Appellants argue there was insufficient evidence that the statements at issue in the securities fraud counts were material. Under 15 U.S.C. § 78j(b), any person who uses or employs a manipu lative or deceptive device in connection with the sale of any security commits securities fraud. SEC Rule 10b-5, implementing the statute, forbids the making of “any untrue statement of a material fact.” 17 C.F.R. § 240.10b-5(b). Materiality is an element of securities fraud. In re Cutera Secs. Litig., 610 F.3d 1103, 1108 (9th Cir.2010) (“Central to a 10b-5 claim is the requirement that a misrepresentation or omission of fact must be material.”) For purposes of securities fraud, “materiality depends on the significance the reasonable investor would place on the withheld or misrepresented information.” Basic Inc. v. Levinson, 485 U.S. 224, 240, 108 S.Ct. 978, 99 L.Ed.2d 194 (1988). A statement is" }, { "docid": "22238477", "title": "", "text": "role as a fact witness and an expert witness. We find that no instruction was required, because Wolver-ton was not a fact witness; he was not the investigating agent and he had no role in gathering evidence. Instead, he was supplied with the appropriate evidence and rendered an expert opinion based on this evidence. vii. Unfair Prejudice with Computer Generated Evidence In a reply brief, Defendants raise the argument that computer generated evidence may be unreliable. (Elie Abboud Reply Br. 7.) An argument first presented to the Court in a reply brief is waived. United States v. Moore, 376 F.3d 570, 576 (6th Cir.2004) (citing Priddy v. Edelman, 883 F.2d 438, 446 (6th Cir.1989)). G. THE EVIDENCE WAS SUFFICIENT TO SUPPORT DEFENDANTS’ CONVICTIONS FOR BANK FRAUD AND MONEY LAUNDERING 1. Standard of Review When reviewing the sufficiency of evidence in support of a jury verdict, this Court views the evidence in the light most favorable to the prosecution and gives the prosecution the benefit of all reasonable inferences from the testimony. United States v. Sawyers, 409 F.3d 732, 735 (6th Cir.2005). Viewing the evidence in this manner, a jury verdict is supported by sufficient evidence if “any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt.” United States v. Evans, 883 F.2d 496, 501 (6th Cir.1989) (quoting Jackson v. Virginia, 443 U.S. 307, 319, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979)) (internal quotations omitted). In sum, “a defendant claiming ‘insufficiency of the evidence bears a very heavy burden.’ ” United States v. Vannerson, 786 F.2d 221, 225 (6th Cir.1986) (quoting United States v. Soto, 716 F.2d 989, 991 (2d Cir.1983)). 2. Analysis a. Bank Fraud i. Legal Framework Section 1344 of Title 18 of the United States Code states, “[w]hoever knowingly executes, or attempts to execute, a scheme or artifice ... to defraud a financial institution” shall be guilty of bank fraud. In order to prove bank fraud, the government must prove three elements: “(1) that the defendant knowingly executed or attempted to execute a scheme to defraud a financial institution; (2)" }, { "docid": "20676445", "title": "", "text": "are hard-pressed to conclude that such analysis constitutes a proper application of the general-specific canon. Put another way, we believe that Griffiths ’s statutory analysis is dubious at best. In sum, based on the foregoing, the district court decision in Griffiths is wholly unpersuasive. Ms. Porter’s reliance on Griffiths is misplaced. Ill We turn now to Ms. Porter’s challenges to the sufficiency of the evidence supporting her convictions for mail fraud and wire fraud. As explicated below, we conclude that the evidence was sufficient as to all of the counts at issue. A We review challenges to the sufficiency of the evidence and denials of motions for judgment of acquittal de novo. United States v. Cooper, 654 F.3d 1104, 1115 (10th Cir.2011). In doing so, we must examine “whether[,] viewing the evidence in the light most favorable to the Government, any rational trier of fact could have found the defendant guilty of the crime beyond a reasonable doubt.” United States v. Delgado-Uribe, 363 F.3d 1077, 1081 (10th Cir.2004) (citation omitted) (internal quotation marks omitted). “[W]e do not weigh conflicting evidence or consider witness credibility, and the fact that prosecution and defense witnesses presented conflicting or differing accounts at trial does not necessarily render the evidence insufficient.” Cooper, 654 F.3d at 1115 (citations omitted). B Ms. Porter was charged with mail fraud in Count 106 of the indictment. “The elements of federal mail fraud as defined in 18 U.S.C. § 1341 are (1) a scheme or artifice to defraud or obtain property by means of false or fraudulent pretenses, representations, or promises, (2) an intent to defraud, and (3) use of the mails to execute the scheme.” Id. at 1116 (quoting United States v. Welch, 327 F.3d 1081, 1104 (10th Cir.2003)) (internal quotation marks omitted). Ms. Porter only takes issue with the third prong of mail fraud: specifically, she claims that the government failed to prove, directly or otherwise, that she used the United States mails to execute her scheme. The underlying document for the mail fraud charge was the Form LM-3 Labor Organization Annual Report for 2006 (the “2006 LM" }, { "docid": "22872880", "title": "", "text": "objected to the prosecution’s remarks; and (3) the district court failed to issue a curative instruction. See Galloway, 316 F.3d at 632. Here, only one of the prerequisites was met: the defendants objected to several of the improper remarks. However, the evidence against the defendants was strong, and the district court offered a curative instruction. Thus, reversal under Galloway is not appropriate. F. Conspiracy to Commit Mail, Wire, & Bank Fraud (18 U.S.C. § 1349) Warshak and Harriet contend that the evidence was insufficient to establish the existence of a conspiracy to commit mail, wire, and bank fraud. In reviewing the sufficiency of the evidence, the relevant question is “whether, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt.” Jackson v. Virginia, 443 U.S. 307, 319, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979). “A defendant challenging the sufficiency of the evidence bears a very heavy burden.” United States v. Prince, 214 F.3d 740, 746 (6th Cir.2000) (citation and internal quotation marks omitted). “[W]e will reverse a judgment for insufficiency of evidence only if, viewing the record as a whole, the judgment is not supported by substantial and competent evidence.” United States v. Blakeney, 942 F.2d 1001, 1010 (6th Cir.1991) (citing United States v. Ellzey, 874 F.2d 324, 328 (6th Cir.1989)). “A conviction for conspiracy to commit ... fraud requires proof beyond a reasonable doubt that the defendant knowingly and willfully joined in an agreement with at least one other person to commit an act of ... fraud and that there was at least one overt act in furtherance of the agreement.” United States v. Cantrell, 278 F.3d 543, 546 (6th Cir.2001) (citing Crossley, 224 F.3d at 856). “Circumstantial evidence that a reasonable person could interpret as showing participation in a common plan may be used to establish the existence of a conspiracy agreement.” Ibid. Furthermore, “a conspiracy to achieve two or more unlawful goals, in the conjunctive, can properly be supported by proof of any of the alleged goals.”" }, { "docid": "1878738", "title": "", "text": "fact. A finding of fact is clearly erroneous only where it is “(1) illogical, (2) implausible, or (3) without support in inferences that may be drawn from the facts in the record.” United States v. Pineda-Doval, 692 F.3d 942, 944 (9th Cir.2012) (citation and internal quotation marks omitted). Clear error review is deferential, and “[w]here there are two permissible views of the evidence, the fact-finder’s choice between them cannot be clearly erroneous.” United States v. Working, 224 F.3d 1093, 1102 (9th Cir.2000) (en banc) (quotation omitted). III. Discussion A. Sufficiency of RICO Enterprise Pellicano, Arneson, and Turner were all convicted of racketeering under the RICO statute, 18 U.S.C. § 1962(c), and also of RICO conspiracy, 18 U.S.C. § 1962(d). They argue that the evidence was insufficient to prove a single RICO enterprise among Pellicano, PIA, Arneson, and Turner because there was no evidence that. Arneson and Turner knew about each other’s roles in the enterprise. We are not persuaded by this argument. The government presented sufficient evidence from which the jury could conclude that Arne-son and Turner knew about the essential nature of their illegal enterprise with Pelli-cano. Defendants challenged the sufficiency of the evidence supporting the RICO enterprise in a Rule 29 motion, which the district court denied. The denial of a Rule 29 motion for judgment of acquittal is reviewed de novo. United States v. Chapman, 528 F.3d 1215, 1218 (9th Cir.2008). The court “view[s] the evidence in the light most favorable to the government and determined whether any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt.” Id. (citation and internal quotation marks omitted); see United States v. Nevils, 598 F.3d 1158, 1163-64 (9th Cir.2010) (en banc). The RICO provision at issue here, 18 U.S.C. § 1962(c), “makes it unlawful for any person employed by or associated with any enterprise ... to conduct or participate, directly or indirectly, in the conduct of such enterprise’s affairs through a pattern of racketeering activity.” Boyle v. United States, 556 U.S. 938, 943-44, 129 S.Ct. 2237, 173 L.Ed.2d 1265 (2009) (emphasis and internal" }, { "docid": "22838439", "title": "", "text": "determine whether “any rational trier of fact could find the elements of the crime beyond a reasonable doubt” and, in doing so, we “view[] the evidence in the light most favorable to the prosecution, ... giving the government the benefit of all inferences that could reasonably be drawn from the testimony.” United States v. M/G Transp. Servs., Inc., 173 F.3d 584, 589 (6th Cir.1999) (citing Jackson v. Virginia, 443 U.S. 307, 319, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979)). “A defendant claiming insufficiency of the evidence bears a very heavy burden.” United States v. Vannerson, 786 F.2d 221, 225 (6th Cir.1986) (quoting United States v. Soto, 716 F.2d 989, 991 (2d Cir.1983)) (internal quotation marks omitted). B. Sufficient Evidence Supports Defendant White’s Conviction Defendant White raises a sufficiency of the evidence challenge to his conviction on Counts 1-5 (Conspiracy to Commit Medicare Fraud (Count 1), Scheme to Defraud the Medicare Program (Counts 2 through 4), and Use of a False Document (Count 5)). White insists that his convictions cannot be sustained because nothing in the record suggests that his “interpretation of the related-party regulation ... was incorrect, much less ‘knowingly and willfully’ false or fraudulent,” and accordingly, the evidence was insufficient to show he possessed “the requisite fraudulent intent ... to accomplish the substantive crimes at issue.” (Def. White’s Br. at 44-45) Additionally, Defendant White challenges his conviction for money laundering and money laundering conspiracy (Counts 6 through 13). Viewing the evidence in the light most favorable to the prosecution, we find that a rational trier of fact could find the essential elements of each of the offenses underlying Defendant White’s conviction beyond a reasonable doubt. 1. Scheme to' Defraud Medicare (18 U.S.C. § 1817) A rational finder of fact could conclude beyond a reasonable doubt that Defendant White engaged in a scheme to defraud Medicare. Title 18 U.S.C. § 1347 criminalizes Medicare fraud and, by its terms, provides that: Whoever knowingly and willfully executes, or attempts to execute, a scheme or artifice— (1) to defraud any health care benefit program; or (2) to obtain, by means of false or" }, { "docid": "8663345", "title": "", "text": "the pre-indictment delay here did not violate the Fifth Amendment. B. Sufficiency of the Evidence We review de novo the denial of a Rule 29 motion for a judgment of acquittal. United States v. Campbell, 549 F.3d 364, 374 (6th Cir.2008). In exercising our review, we “examine the evidence in the light most favorable to the prosecution to determine whether any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt.” Id. “[W]e are bound to make all reasonable inferences and credibility choices in support of the verdict.” Id. “[C]ircumstantial evidence alone, if substantial and competent, may support a verdict and need not remove every reasonable hypothesis except that of guilt.” United States v. Goosby, 523 F.3d 632, 637 (6th Cir.2008) (internal quotation marks omitted). In Thomas’s case, the evidence supported his convictions for conspiracy to defraud the federal government and all counts of mail fraud. 1. Conspiracy to Defraud the United States The elements of conspiracy to defraud the federal government are “(1) an agreement to accomplish an illegal objective against the United States; (2) one or more overt acts in furtherance of the illegal purpose; and (3) the intent to commit the substantive offense, i.e., to defraud the United States.” United States v. White, 492 F.3d 380, 395 (6th Cir.2007) (internal quotation marks omitted). Thomas challenges the sufficiency of the evidence for the first requirement — agreement. “The agreement need not be explicit; rather, a tacit or mutual understanding among the parties will suffice.” Id. (internal quotation marks omitted). Likewise, the evidence need not prove the tacit agreement explicitly: “[t]he existence of a conspiracy may be inferred from circumstantial evidence that can reasonably be interpreted as participation in the common plan.” United States v. Faulkenberry, 614 F.3d 573, 584 (6th Cir.2010) (internal quotation marks omitted). Dumas testified that he “assumed” that Thomas was billing OWCP for missed appointments. R. 54 (10/30/08 Trial Tr., Dumas at 33). Thomas contends that Dumas’s assumption reveals a lack of knowledge, which in turn belies Dumas’s supposed agreement with Thomas to defraud the government. But as" }, { "docid": "11173557", "title": "", "text": "standard for challenges based on the alleged insufficiency of the evidence, holding that “the relevant question is whether, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt.” Id. at 319, 99 S.Ct. 2781 (emphasis in original); see also United States v. Warshak, 631 F.3d 266, 308 (6th Cir.2010) (en banc) (same). “This is a very heavy burden” for the defendant to meet. United States v. Jones, 641 F.3d 706, 710 (6th Cir.2011) (internal quotation marks omitted). Reversal of a conviction is warranted “only if, viewing the record as a whole, the judgment is not supported by substantial and competent evidence.” United States v. Blakeney, 942 F.2d 1001, 1010 (6th Cir.1991). In deciding whether a conviction is supported by substantial and competent evidence, we do not “weigh the evidence, assess the credibility of witnesses, or substitute our judgment for that of the jury,” United States v. Paige, 470 F.3d 603, 608 (6th Cir.2006) (internal quotation marks omitted), and we draw “all available inferences and resolve all issues of credibility in favor of the jury’s verdict,” United States v. Salgado, 250 F.3d 438, 446 (6th Cir.2001). “We review de novo the district court’s denial of a motion for judgment of acquittal.” United States v. Algee, 599 F.3d 506, 512 (6th Cir.2010). 1. Sufficiency of the evidence on Count 1 (conspiracy to commit mail fraud, in violation of 18 U.S.C. § 1349) The jury convicted Michael Smith on Count 1 for conspiring to commit mail fraud, but acquitted Christopher Smith of this conspiracy charge. Michael Smith argues that the government introduced no evidence of “any genuinely false statements of fact or omissions in communications with investors” and “no proof of any agreement to deceive investors or withhold material information from them.” According to Michael Smith, he did not do “anything different from what most oil and gas exploration businesses would do.” “A conviction for conspiracy to commit mail fraud requires proof beyond a reasonable doubt that the defendant knowingly and willfully joined" }, { "docid": "23199435", "title": "", "text": "Wettstain on all counts of conviction. Defense counsel did not object. On May 15, 2008, Stewart and Wettstain were sentenced. The district court adopted the revised PSR recommendations and sentenced Stewart to concurrent life sentences on Counts I, II, and IV and Wettstain to concurrent life sentences on Counts I, III, and IV. Defendants timely appeal their convictions and sentences. II. We begin our analysis, as we must, with the sufficiency of the evidence. “[A]n appellate court’s reversal for insufficiency of the evidence is in effect a determination that the government’s case against the defendant was so lacking that the trial court should have entered a judgment of acquittal, rather than submitting the ease to the jury.” Lockhart v. Nelson, 488 U.S. 33, 39, 109 S.Ct. 285, 102 L.Ed.2d 265 (1988). Because the Double Jeopardy Clause affords a defendant who obtains a judgment of acquittal absolute immunity from further prosecution for the same crime, the Supreme Court has stated that “it ought to do the same for the defendant who obtains an appellate determination that the district court should have entered a judgment of acquittal.” Id. Accordingly, defendants bear a heavy burden when asserting insufficiency of the evidence arguments. United States v. Spearman, 186 F.3d 743, 746 (6th Cir.1999). “Circumstantial evidence alone is sufficient to sustain a conviction and such evidence need not remove every reasonable hypothesis except that of guilt.” Id. (citation and internal quotation marks omitted). Furthermore, we have held consistently that “ ‘[t]he uncorroborated testimony of an accomplice alone may support a conviction.’ ” United States v. King, 288 Fed.Appx. 253, 256 (6th Cir.2008) (unpublished) (quoting United States v. Clark, 18 F.3d 1337, 1343 (6th Cir.1994)). We review de novo the district court’s denial of a motion for judgment of acquittal pursuant to Fed.R.Crim.P. 29 and assess the evidence “in the light most favorable to the prosecution to determine whether any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt.” United States v. Campbell, 549 F.3d 364, 374 (6th Cir.2008). “We will reverse a judgment based on a finding" }, { "docid": "23199436", "title": "", "text": "the district court should have entered a judgment of acquittal.” Id. Accordingly, defendants bear a heavy burden when asserting insufficiency of the evidence arguments. United States v. Spearman, 186 F.3d 743, 746 (6th Cir.1999). “Circumstantial evidence alone is sufficient to sustain a conviction and such evidence need not remove every reasonable hypothesis except that of guilt.” Id. (citation and internal quotation marks omitted). Furthermore, we have held consistently that “ ‘[t]he uncorroborated testimony of an accomplice alone may support a conviction.’ ” United States v. King, 288 Fed.Appx. 253, 256 (6th Cir.2008) (unpublished) (quoting United States v. Clark, 18 F.3d 1337, 1343 (6th Cir.1994)). We review de novo the district court’s denial of a motion for judgment of acquittal pursuant to Fed.R.Crim.P. 29 and assess the evidence “in the light most favorable to the prosecution to determine whether any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt.” United States v. Campbell, 549 F.3d 364, 374 (6th Cir.2008). “We will reverse a judgment based on a finding of insufficient evidence only if the judgment is not supported by substantial and competent evidence upon the record as a whole.” Id. Further, we have a duty to make all reasonable inferences in support of the jury’s verdict. Id. In accordance with these prin ciples, we ton to Wettstain’s and Stewart’s sufficiency-of-the-evidence arguments. Count I Wettstain and Stewart argue that the evidence adduced at trial was insufficient to establish the existence of a conspiracy to possess with the intent to distribute 500 grams or more of a mixture containing methamphetamine between February 2004 and February 2007. To demonstrate a conspiracy under 21 U.S.C. §§ 841(a)(1) and 846, the government must prove, beyond a reasonable doubt: “(1) an agreement to violate drug laws, (2) knowledge and intent to join the conspiracy, and (3) participation in the conspiracy.” United States v. Gibbs, 182 F.3d 408, 420 (6th Cir.1999) (citation and internal quotation marks omitted). Wettstain argues that the government failed to prove the element of agreement. We disagree. Higdon, a co-conspirator and cooperating witness, testified that beginning" }, { "docid": "8663344", "title": "", "text": "five-year delay was constitutionally permissible). “[I]nvestigative delay” is a valid reason for delay. United States v. Lovasco, 431 U.S. 783, 795, 97 S.Ct. 2044, 52 L.Ed.2d 752 (1977). Even when the government cites its own court filings rather than offering “sworn testimony on the investigative reasons for the delay,” we may accept the government’s representations about the reason for delay. Rogers, 118 F.3d at 476. Thomas asks us to “infer” intent, noting that, “[a]t minimum, the delay was reckless” because the government had gathered all evidence relevant to the indict ment by early 2006. Appellant Br. at 17. The government, however, has proffered valid reasons for delay that relate to the ongoing investigation. For example, at Thomas’s instigation, the government explored the possibility of pretrial diversion. Next, it produced evidence in hopes of convincing Thomas to accept a pre-indictment plea agreement. Finally, it secured Dumas’s cooperation and spent several months corroborating his story. Thomas has not explained why these reasons are improper. Because Thomas has shown neither prejudice nor the government’s intent tactically to delay, the pre-indictment delay here did not violate the Fifth Amendment. B. Sufficiency of the Evidence We review de novo the denial of a Rule 29 motion for a judgment of acquittal. United States v. Campbell, 549 F.3d 364, 374 (6th Cir.2008). In exercising our review, we “examine the evidence in the light most favorable to the prosecution to determine whether any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt.” Id. “[W]e are bound to make all reasonable inferences and credibility choices in support of the verdict.” Id. “[C]ircumstantial evidence alone, if substantial and competent, may support a verdict and need not remove every reasonable hypothesis except that of guilt.” United States v. Goosby, 523 F.3d 632, 637 (6th Cir.2008) (internal quotation marks omitted). In Thomas’s case, the evidence supported his convictions for conspiracy to defraud the federal government and all counts of mail fraud. 1. Conspiracy to Defraud the United States The elements of conspiracy to defraud the federal government are “(1) an agreement to accomplish" }, { "docid": "7551535", "title": "", "text": "evidence, challenge the timeliness of the indictments, assert constitutional violations and other error stemming from the district court’s determination that the state-court action was resolved as an aggregate settlement rather than as a class action, claim that several of the court’s evidentiary rulings constituted an abuse of discretion, dispute the restitution amount, contend that the district court erred by not granting a mistrial due to the health problems of Gallion’s counsel, and argue that Cunningham should have been allowed to waive his constitutional right to a unanimous verdict. We will address each of these issues in turn below. A. Sufficiency of the evidence 1. Standard of review Gallion first challenges the sufficiency of the evidence supporting his convictions for wire fraud and conspiracy to commit wire fraud. We review de novo a district court’s denial of a motion for acquittal based on the insufficiency of the evidence, United States v. Mabry, 518 F.3d 442, 447 (6th Cir.2008), and must affirm the district court’s decision if, “after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt.” Jackson v. Virginia, 443 U.S. 307, 319, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979) (emphasis in original). Because we may not independently weigh the evidence or “substitute our judgment for that of the jury,” Johnson v. Mitchell, 585 F.3d 923, 931 (6th Cir.2009), a defendant making an insufficiency-of-the-evidence argument “bears a very heavy burden.” United States v. Daniel, 329 F.3d 480, 485 (6th Cir.2003) (internal quotation marks omitted). 2. Evidence of wire fraud The crime of wire fraud consists of three elements, each of which must be proven beyond a reasonable doubt: (1) “that the defendant devised or willfully participated in a scheme to defraud”; (2) “that he used or caused to be used an interstate wire communication in furtherance of the scheme”; and (3) “that he intended to deprive a victim of money or property.” United States v. Faulkenberry, 614 F.3d 573, 581 (6th Cir.2010) (internal quotation marks omitted). Gallion attacks the evidence as" }, { "docid": "7077778", "title": "", "text": "constitutional challenges that stem from the government’s imposition of a caveat on his home. B. Sufficiency of the Evidence Mr. Clark challenges the sufficiency of the evidence on all of his counts of conviction. Mr. Clark was convicted of one count of conspiracy to commit wire fraud, securities fraud, and money laundering; seven counts of wire fraud; five counts of securities fraud; and one count of money laundering. The district court denied Mr. Clark’s motion for judgment of acquittal. We conclude that Mr. Clark’s suffieiencyof-the-evidence challenges are without merit. “In reviewing the sufficiency of the evidence and denial of a motion for judgment of acquittal, this court reviews the record de novo to determine whether, viewing the evidence in the light most favorable to the government, any rational trier of fact could have found the defendant guilty of the crime beyond a reasonable doubt.” United States v. Irvin, 682 F.3d 1254, 1266 (10th Cir.2012). The court may “not weigh conflicting evidence” in its review. Id. (quoting United States v. Evans, 318 F.3d 1011, 1018 (10th Cir.2003)) (internal quotation marks omitted). We must “consider! ] the entire record, including both direct and circumstantial evidence, together with the reasonable inferences to be drawn from it.” United States v. Mendez, 514 F.3d 1035, 1041 (10th Cir.2008). 1. Conspiracy Mr. Clark first asserts that the government failed to establish that he was involved in “an agreement to commit an unlawful act,” as required to support the conspiracy charge. See, e.g., United States v. Weidner, 437 F.3d 1023, 1033 (10th Cir.2006) (quoting United States v. Morehead, 959 F.2d 1489, 1500 (10th Cir.1992)) (internal quotation marks omitted). The evidence need not show an express agreement to support a conspiracy charge. See Cooper, 654 F.3d at 1115-16. “[T]he agreement requirement may be satisfied entirely through circumstantial evidence,” id. at 1116; that is, it “may be inferred from the facts and circumstances of the case,” id. at 1115-16 (quoting United States v. Sells, 477 F.3d 1226, 1286 (10th Cir.2007)) (internal quotation marks omitted). Such facts and circumstances include “the joint appearance of defendants at transactions and negotiations furthering" }, { "docid": "22594640", "title": "", "text": "168 months of imprisonment (Count Six). Graham timely appeals the denial of his acquittal and life sentence motions and challenges the reasonableness of his sentence. I. DISCUSSION A. Denial of Graham’s Motion for Judgment of Acquittal Graham argues that the district court erred in denying his acquittal motions because “No One Saw Graham Do Anything,” making the government’s evidence insufficient to support a conviction. Appellant Br. at 17. The district court denied Graham’s motions on the record, stating, “A lot of the evidence is by people whose credibility isn’t the greatest, but the Court has to ignore those issues, and the evidence taken at its face value is sufficient for it to go to the jury.” Dist. Ct. Doc. (“Doc.”) 125 (Trial Tr. # 3 at 37, 56). We review de novo the denial of a motion for acquittal, viewing the evidence in “a light most favorable to the prosecution, giving the prosecution the benefit of all reasonable inferences from the testimony.” United States v. McAuliffe, 490 F.3d 526, 537 (6th Cir.), cert. denied, 552 U.S. 976, 128 S.Ct. 442, 169 L.Ed.2d 309 (2007). “The relevant question in assessing a challenge to the sufficiency of the evidence is whether any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt.” Id. We may not “weigh the evidence presented, consider the credibility of witnesses, or substitute our judgment for that of the jury.” United States v. M/G Transp. Servs., Inc., 173 F.3d 584, 588-89 (6th Cir.1999). “A defendant claiming insufficiency of the evidence bears a very heavy burden.” United States v. Abboud, 438 F.3d 554, 589 (6th Cir.) (internal quotation marks and alteration omitted), cert. denied, 549 U.S. 976, 127 S.Ct. 446, 166 L.Ed.2d 309 (2006). We afford the same weight to both circumstantial and direct evidence. United States v. Gallo, 763 F.2d 1504, 1518 (6th Cir.1985), cert. denied, 475 U.S. 1017, 106 S.Ct. 1200, 89 L.Ed.2d 314 (1986). Because “ ‘[c]ircumstantial evidence alone may sustain a conviction,’ ” physical evidence is not a prerequisite to sustaining a conviction. United States v. Davis, 306" }, { "docid": "10120386", "title": "", "text": "“(1) illogical, (2) implausible, or (3) without support in inferences that may be drawn from the facts in the record.” United States v. Pineda-Doval, 692 F.3d 942, 944 (9th Cir. 2012) (citation and internal quotation marks omitted). Clear error review is deferential, and “[w]here there are two permissible views of the evidence, the fact-finder’s choice between them cannot be clearly erroneous.” United States v. Working, 224 F.3d 1093, 1102 (9th Cir. 2000) (en banc) (quotation omitted). III. Discussion A. Sufficiency of RICO Enterprise Pellicano, Arneson, and Turner were all convicted of racketeering under the RICO statute, 18 U.S.C. § 1962(c), and also of RICO conspiracy, 18 U.S.C. § 1962(d). They argue that the evidence was insufficient to prove a single RICO enterprise among Pellieano, PIA, Arneson, and Turner because there was no evidence that Arneson and Turner knew about each other’s roles in the enterprise. We are not persuaded by this argument. The government presented sufficient evidence from which the jury could conclude that Arne-son and Turner knew about the essential nature of their illegal enterprise with Pelli-cano. Defendants challenged the sufficiency of the evidence supporting the RICO enterprise in a Rule 29 motion, which the district court denied. The denial of a Rule 29 motion for judgment of acquittal is reviewed de novo. United States v. Chapman, 528 F.3d 1215, 1218 (9th Cir. 2008). The court “view[s] the evidence in the light most favorable to the government and determined whether any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt.” Id. (citation and internal quotation marks omitted); see United States v. Nevils, 598 F.3d 1158, 1163-64 (9th Cir. 2010) (en banc). The RICO provision at issue here, 18 U.S.C. § 1962(c), “makes it unlawful for any person employed by or associated with any enterprise ... to conduct or participate, directly or indirectly, in the conduct of such enterprise’s affairs through a pattern of racketeering activity.” Boyle v. United States, 556 U.S. 938, 943-44, 129 S.Ct. 2237, 173 L.Ed.2d 1265 (2009) (emphasis and internal quotation marks omitted). A RICO offense is established" }, { "docid": "22838438", "title": "", "text": "that Defendant Suhadolnik approved transfers of funds from YOH to HealthSecure, and from HealthSecure to several other service providers. The government further introduced evidence of a $10,000 wire transfer from HealthSecure to Montrose. When a member of the Board of Trustees at YOH, Eugene Fox (“Fox”), reviewed the hospital’s financial statements, he grew concerned and approached Defendant Suhadolnik. Suhadolnik informed Fox that Pathways had been loaning its Medicare revenue to HealthSecure instead of satisfying its obligations to YOH, and that HealthSecure in turn was loaning funds to the two health centers in Florida. Later that evening, Fox further explored the situation by questioning Defendant White at the monthly Board of Trustees meeting. Ultimately, YOH terminated its agreement with Montrose and severed ties, with White. Macejko and Barnett also ended their agreement with Montrose. The government introduced evidence at trial that Medicare reimbursed over $14 million in 1997 and 1998 to providers controlled by Defendant White and DeVarona. DISCUSSION I. SUFFICIENCY OF THE EVIDENCE A. Standard of Review We review sufficiency of the evidence claims to determine whether “any rational trier of fact could find the elements of the crime beyond a reasonable doubt” and, in doing so, we “view[] the evidence in the light most favorable to the prosecution, ... giving the government the benefit of all inferences that could reasonably be drawn from the testimony.” United States v. M/G Transp. Servs., Inc., 173 F.3d 584, 589 (6th Cir.1999) (citing Jackson v. Virginia, 443 U.S. 307, 319, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979)). “A defendant claiming insufficiency of the evidence bears a very heavy burden.” United States v. Vannerson, 786 F.2d 221, 225 (6th Cir.1986) (quoting United States v. Soto, 716 F.2d 989, 991 (2d Cir.1983)) (internal quotation marks omitted). B. Sufficient Evidence Supports Defendant White’s Conviction Defendant White raises a sufficiency of the evidence challenge to his conviction on Counts 1-5 (Conspiracy to Commit Medicare Fraud (Count 1), Scheme to Defraud the Medicare Program (Counts 2 through 4), and Use of a False Document (Count 5)). White insists that his convictions cannot be sustained because nothing in the" }, { "docid": "17022884", "title": "", "text": "properly admitted for that purpose. See United States v. Barnes, 49 F.3d 1144, 1149 (6th Cir.1995) (“Rule 404(b) does not apply where the challenged evidence is inextricably intertwined with evidence of the crime charged in the indictment.” (internal quotation marks omitted)). Jackson also contends that the introduction of the challenged evidence subjected him to a second trial for a single crime, in violation of the Fifth Amendment, which provides, in relevant part, that “[n]o person shall be ... subject for the same offence to be twice put in jeopardy of life or limb____” U.S. Const. amend. V. Under the dual-sovereign doctrine, however, “the double jeopardy clause does not apply to suits by separate sovereigns, even if both are criminal suits for the same offense.” United States v. Louisville Edible Oil Prods., Inc., 926 F.2d 584, 587 (6th Cir.) (internal quotation marks omitted), cert. denied, 502 U.S. 859, 112 S.Ct. 177, 116 L.Ed.2d 140 (1991). Accordingly, we hold that the district court did not abuse its discretion in admitting the challenged evidence. V. THE SUFFICIENCY OF THE EVIDENCE Jackson next claims that the government’s evidence was insufficient to support his conviction. He argues that, by acquitting him of the charge involving more than fifty grams of crack, the jury demonstrated that it did not credit the testimony of the government’s witnesses, who claimed to have sold or delivered to him amounts far in excess of fifty grams. When reviewing the sufficiency of evidence in support of a jury verdict, this Court views the evidence in the light most favorable to the prosecution and gives the prosecution the benefit of all reasonable inferences from the testimony. Viewing the evidence in this manner, a jury verdict is supported by sufficient evidence if any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt. In sum, a defendant claiming insufficiency of the evidence bears a very heavy burden. United States v. Abboud, 438 F.3d 554, 589 (6th Cir.2006) (emphasis in original; internal quotation marks and citations omitted), cert. denied, — U.S.-, 127 S.Ct. 446, 166 L.Ed.2d 309" } ]

[ { "docid": "11582068", "title": "", "text": "described in sections 2035 and 2038, inclusive, and section 2041 is made, created, exercised, or relinquished for a consideration in money or money’s worth, but is not a bona fide sale for an adequate and full consideration in money or money’s worth, there shall be included in the gross estate only the excess of the fair market value at the time of death of the property otherwise to be included on account of such transaction, over the value of the consideration received therefor by the decedent. Chase and Resor testified that they paid portions of the total consideration for lot No. 436. However, they acknowledged that their testimony essentially was based on their conclusion that (in Resor’s words) they \"had no reason to question the deed,” and on their understanding that they had sufficient assets in 1939 (Chase was 10 years old and Resor was 6 years old at the time) to pay for their remainder interests. This testimony has no greater weight than its acknowledged underpinnings. The following appears in C. Lowndes, R. Kramer & J. McCord, Federal Estate and Gift Taxes 186 (3d ed. 1974): \"A decedent may be taxed under Section 2036 in connection with a transfer nominally made by someone else where the decedent furnished the consideration for the transfer, so that in substance he was the transferor. For example, if A buys Blackacre from B and directs B to transfer the property to A for life, remainder to X, Blackacre will be taxable to A’s estate, on the theory that in substance he, rather than B, transferred the property. [Footnote reference omitted.]” Tax Management Portfolio, Retained Life Interests, No. 133-3d, at A-3 states as follows: \"A more difficult case would exist if A paid B $50,000 and B conveyed a life estate in a $50,000 house to A and the remainder to A’s children. Section 2036 would probably apply there too. Logically it should also apply if A gave his children cash equal in value to the remainder interest and A and his children then bought the property.”" } ]

[ { "docid": "15449106", "title": "", "text": "estate taxes.” Id. (citation omitted). In 1976, Congress amended section 2035 to omit the contemplation of death provision, placing in its stead an absolute rule including in the gross estate all gifts made by the decedent within three years of death. The congressional' intent-relevant to the present case as well--was patent: “Congress was troubled by the inordinate number of lawsuits by taxpayers who attempted to establish life motives for transfers otherwise taxable under the statute. The statutory change in section 2035 bore a rational relationship to a legitimate congressional purpose: eliminating factbound determinations, hinging upon subjective motive.” Estate of Ekins v. Commissioner, 797 F.2d 481, 486 (7th Cir.1986) (citing H.R.Rep. No. 94-1380, 94th Cong., 2d Sess. 12 (1976), reprinted in 1976 U.S.C.C.A.N. 2897, 3366) (emphasis added)); Hope, 691 F.2d at 788 n. 3 (same). Section 2035 was amended again in 1981 to eliminate the three year rule, subject to certain exceptions, for persons dying after 1981. The Economic Recovery Act of 1981, Pub.L. 97-34, Title IV, §§ 403(b)(3)(B), 424(a), 95 Stat. 301, 317; § 2035(d)(1). It is safe to say that, with the possible exception of gifts causa mortis, the present transfer tax scheme eschews subjective intent determinations in favor of the objective requirements set forth in the statutes. Therefore, section 2036(a) permits the conclusion that a split-interest transfer was testamentary when, and if, the objective requirement that the transfer be for an adequate and full consideration is not met. Section 2036(a) does not, however, permit a perceived testamentary intent, ipse dixit, to determine what amount constitutes an adequate and full consideration. Unless and until the Congress declares that intrafamily transfers are to be treated differently, see I.R.C. §§ 2701-2704 (West Supp.1996) discussed below, we must rely on the objective criteria set forth in the statute and Treasury Regulations to determine whether a sale comes within the ambit of the exception to section 2036(a). The. identity of the transferee or the perceived testamentary intent of the transferor, provided all amounts transferred are identical, cannot result in transfer tax liability in one ease and a tax free transfer in another. F." }, { "docid": "15449140", "title": "", "text": "1990 (transfers prior thereto being excluded from section 2702; see note 21, supra). Although the special valuation rules do not apply where the holder of a life or term interest uses the property as his personal residence, I.R.C. § 2702(a)(3)(A)(ii), the Treasury Regulations provide that the personal residence exception applies only where the residence is placed in an irrevocable trust, 26 C.F.R. § 25.2702-5(b) (1996) (\"A [personal residence] trust does not meet the requirements of this section if ... the residence may be sold or- otherwise transferred by the trust or may be used for' a purpose other than as a personal residence of the term holder.”). Congress continues to tinker with the transfer tax scheme. A new clause added to section 2702 on August 20, 1996, strengthens the force of this Treasury Regulation. See Small Business Job Protection Act of 1996, Pub.L. No. 104-188, 110 Stat. 1755 (adding I.R.C. § 2702(a)(3)(A)(iii) (\"to the extent that regulations provide that such transfer is not inconsistent with the purposes of this section”)). . The parties soon thereafter agreed to monthly payments without otherwise altering the terms of the note. . Melton, in fact, assigned the note in Decern-her 1986 in partial payment of a $231,444 debt he owed The Melton Company. . Unless, of course, Congress provides otherwise. See, e.g., I.R.C. § 2035(a) & (d)(2) (West 1989); I.R.C. §§ 2701-2704 (West Supp.1996). . And, where taxable, gifts are made within three years of death, the amount of gift tax paid thereon is also added to the gross estate under section 2035(c). . Estate of Shafer v. Commissioner, 80 T.C. 1145, 1983 WL 14846 (1983), aff'd, 749 F.2d 1216 (6th Cir.1984), is more appropriately seen as the type of transaction in which the decedent, in an intrafamily transfer, attempted a form-over-substance maneuver. In Shafer, the decedent \"had the grantors execute the deed so as to convey a remainder interest to [the children] as tenants in common while retaining a life estate for himself.” Shafer, 749 F.2d at 1221. Accordingly, the decedent's estate argued that there was no \"transfer” by the decedent to his" }, { "docid": "15449130", "title": "", "text": "($900,000 as the value of the full fee interest in three-fifths of the corpus or $765,000 as the value of the remainder interest in three-fifths of the corpus) had the life estate not been transferred; and this comparison demonstrated that the consideration was not adequate and full. Here, by contrast, the deed from Melton to the Wheelers, unlike Maria Allen's transfer to the trust, was for an adequate and full consideration, because immediately thereafter Wheeler owned assets having a value equal to what he owned immediately before. Thus the Melton deed was not within section 2036(a). Moreover, here there is no transaction subject to section 2035 (the successor to the contemplation-of-death provision of IRC 1939 § 811(c)(1)(A)) as the Melton deed was executed (and the consideration fully paid) more than three years before Melton's death. Judge Breitenstein’s opinion concurring in the result in Allen appears to suggest that Allen does not depend on the transfer of the life estate having been made in contemplation of death, but rather on the proposition that no transfer of the life estate could ever \"undo\" the estate tax consequences of the earlier donative transfer to the trust with a life estate retained, which was con-cededly within the predecessor to section 2036(a) and not within the exception thereto. Id. at 918 (\"As I read the statute the tax liability arises at the time of the inter vivos transfer under which there was a retention of the right to income for life. The disposition thereafter of that retained right does not eliminate the tax liability.”). The correctness of this view is of perhaps only tenuous relevance here, as here the deed from Melton to the Wheelers is within the section 2036(a) exception. In any event, we note that neither the Allen majority nor, so far as we are aware, any other authority, has embraced Judge Breiten- stein’s view as thus broadly stated. See, for example, 5 Bittker & Lokken, supra, at 126-27: \"... if the decedent transferred property subject to a retained life estate but later (more than three years before death) relinquished the life estate," }, { "docid": "15449127", "title": "", "text": "affir-mance of Gradow, 897 F.2d 516 (Fed.Cir.1990), the IRS reversed its consistent practice of calculating adequate and full consideration for the sale of remainder interests under section 2036(a) by using the actuarial factors set forth in the Treasury Regulations-see, e.g., Rev. Rul. 80-80, 1980-12 I.R.C. 10 (“fTlhe current actuarial tables in the regulations shall be applied if valuation of an individual’s life interest is required for purposes of the federal estate or gift taxes unless the individual is known to have been afflicted, at the time of transfer, with an incurable physical condition that is in such an advanced stage that death is clearly imminent.”); Priv. Ltr. Rul. 78-06-001 (Oct. 31, 1977); Priv. Ltr. Rul. 80-41-098 (Jul. 21, 1980); Tech. Adv. Mem. 81-45-012 (Jul. 20, 1981)-and began to cite the Gradow dicta as controlling, see, e.g., Priv. Ltr. Rul. 91-33-001 (Jan. 31, 1991) (\"For purposes of section 2036(a), in determining whether an adequate and full consideration was received by a decedent upon transferring an interest in property, the consideration received by the decedent is compared to the value of the underlying property rather than the value of the transferred interest; the consideration thus being a replacement of the property otherwise includible in the decedent’s gross estate.”) (citing Gradow, 11 Cl.Ct. 808). . See Jordan, Sales of Remainder Interests, at 682. The special valuation rules of the subsequently-enacted section 2702(a) do not operate to frustrate this unfortunate result. Section 2702(a)’s special valuation rules address whether a gift has been made by the transferor, not the purchaser. Jordan, supra. . Grant Gilmore, The Uniform Commercial Code: A Reply to Professor Beutel, 61 Yale L.J. 364, 375-76 (1952) (characterizing, in an entirely different context, the same type of heads-I-win-tails-you-lose scheme). . Allen can only properly be understood as a \"contemplation of death” case. As noted, the trial court found the life estate was transferred in contemplation of death, and this finding was not disturbed on appeal. See D’Ambrosio, 101 F.3d at 312 (transfer of life estate in Allen \"a testamentary transaction with palpable tax evasion motive”); 5 Bittker & Lokken, Federal Taxation of" }, { "docid": "20063486", "title": "", "text": "OPINION. Deennen, Judge: Respondent determined a deficiency in gift tax liability of Ellie G. Canfield, deceased, for the year 1942 in the amount of $35,293.58, and a net estate tax deficiency against her estate in the amount of $117,153.13. The issues for decision are: (1) \"Whether the release of a reserved testamentary general power of appointment by decedent in 1942 constituted a taxable gift of the remainder value of the trust corpus at the time of such relinquishment, or was exempt from gift tax under section 1000(e), I.R.C. 1939; and (2) whether the corpus of the trust created by the decedent in 1919, wherein she reserved the income for life and a general testamentary power of appointment over the corpus, which power was released in 1942, is includible in her gross estate under section 2036(a), I.R.C. 1954, or exeludible under section 2036(b) as a transfer made prior to March 4, 1931. All of the facts were stipulated and are incorporated herein by reference. The facts may be summarized as follows. Ellie G. Canfield, deceased, herein referred to as decedent, was born on August 2, 1863, and died on January 24, 1955. At the time of her death and at all other times material to this case she was domiciled in and a resident of the State of New York. Decedent’s husband, Francis D. Canfield, died on October 8, 1917. Decedent never remarried. On March 24, 1919, decedent, as grantor, and the Central Union Trust Company of New York and decedent, as trustees, executed a trust agreement whereby decedent transferred to the trustees certain securities described in a schedule attached to the trust instrument. The first clause of the trust instrument directed the trustee to invest and reinvest all corpus of the trust and to pay the income, after deducting proper charges incident to the execution of the trust, to decedent during her life. The second clause of the trust instrument gave to decedent a testamentary power of appointment of the corpus of the trust as follows: Upon tlie death of the party of the first part, to pay oyer the" }, { "docid": "15449122", "title": "", "text": "of the estate on a wholly unrelated issue concerning the valuation of the estate's stock in The Melton Company. That issue is not involved in this appeal. . See also I.R.C. § 2043(a), which provides: \"If any one of the transfers, trusts, interests, rights, or powers enumerated and described in sections 2035 to 2038, inclusive, and section 2041 is made, created, exercised, or relinquished for a consideration in money or money’s worth, but is not a bona fide sale for an adequate and full consideration in money or money's worth, there shall be included in the gross estate only the excess of the fair market value at the time of death of the property otherwise to be included on account of such transaction, over the value of the consideration received therefor by the decedent.” . Commentators have disagreed about the wisdom of a \"consideration offset” in the widow's election context. See Lowndes, supra; Johan-son, supra. This Court's Vardell decision has been described as mandating the inclusion of all of the surviving spouse's transferred property in her gross estate, subject only to such credits, if any, as may be due under section 2043(a) (quoted in note 6, supra). See Lowndes, Consideration and the Federal Estate and Gift Taxes, at 67-68 (discussing Estate of Vardell v. Commissioner, 307 F.2d 688, 692-94 (5th Cir.1962)). Accordingly, the amount of the surviving spouse’s subsequent gross estate enhancement under section 2036(a) caused by her retained life estate would be “offset” pursuant to section 2043(a). Vardell, 307 F.2d at 693. However, it is the date-of-death value of the (now-dead) surviving spouse’s remainder interest that is offset by the actuarial (date-of-election) value of her life estate in the decedent spouse's community property share under section 2043(a). Id. at 693-94. Vardell did not address the date-of-election value of the surviving spouse’s remainder interest, although there are indications that the life estate in the husband’s community property share was worth less than the transferred remainder. Vardell, 307 F.2d at 692 (\"Nor are we concerned with a valuation of the property interest transferred by Mrs. Vardell since the very purpose of" }, { "docid": "15380684", "title": "", "text": "as decisions of the district courts in civil actions tried without a jury.” 26 U.S.C. § 7482. Because the issue on appeal is a conclusion of law, the Tax Court’s decision will be reviewed de novo. Walter v. Commissioner, 753 F.2d 35, 38 (6th Cir.1985). The issue before us has been addressed by the Tenth Circuit in Estate of Leder v. Commissioner, 893 F.2d 237 (10th Cir.1989). The Tax Court relied on Leder in rendering its decision in this case, and we find the Tenth Circuit’s reasoning to be persuasive. Before discussing the Leder decision, a brief overview of the relevant provisions of the Internal Revenue Code (I.R.C.) is in order. Section 2035 provides in relevant part: (a) Inclusion of gifts made by decedent. —Except as provided in subsection (b), the value of the gross estate shall include the value of all property to the extent of any interest therein of which the decedent has at any time made a transfer, by trust or otherwise, during the 3-year period ending on the date of the decedent’s death. * * * * * * (d) Decedents dying after 1981.— (1) In general. — Except as otherwise provided in this subsection, subsection (a) shall not apply to the estate of a decedent dying after December 31, 1981. (2) Exceptions for certain transfers. —Paragraph (1) of this subsection ... shall not apply to a transfer of an interest in property which is included in the value of the gross estate under section ... 2042 or would have been included under ... [section 2042] if such interest had been retained by the decedent. 26 U.S.C. § 2035. “Section 2035(a) generally requires that the value of any property or interest transferred by the decedent within three years of death for less than full and adequate consideration be included in the decedent’s gross estate....” Leder, 893 F.2d at 239. Section 2035(d) was added by the Economic Recovery Tax Act of 1981 (ERTA), and it applies to the estates of decedents dying after 1981. Id. “[Subsection (d)(1) nullifies the three year inclu-sionary rule of subsection (a), except" }, { "docid": "15449137", "title": "", "text": "three-year inclusion rule under the current formulation provided the transfer constituted a gift and was not a bona fide sale for an adequate and full consideration. See note 12, supra. Section 2035(c) includes in the gross estate the amount of any gift tax paid by decedent (or his estate) on any gift by decedent (or his spouse) after 1976 and during the three years before the decedent's death. Melton’s 1984 deed was not a taxable gift because it was for an adequate and full consideration as determined by the applicable tables under the regulations, as the government concedes (nor was it within three years of his death). . Some commentators embrace portions of the government's position.regarding testamentary intent and section 2036(a) by concluding that the nonadversarial aspect of intrafamily transfers taints them as necessarily donative. See, e.g., Jordan, Sales of Remainder Interests, at 717 (“While it may be the case that the consideration received in a non-arm's length transfer is sufficient to prevent depletion of the taxpayer's gross estate, the donative character of the transaction combined with the taxpayer’s retention of an interest in the property is nevertheless sufficient to make the transfer testamentary in nature.”). We believe, however, that such a view is a misconstruction of 2036(a). The safeguards concerning sham transfers and sham consideration, combined with congressional prerogative to eliminate perceived abuses, see I.R.C. §§ 2701-2704, counsel against reading back into the statute what was removed statutorily in 1976. . These provisions are (with minor, irrelevant exceptions) inapplicable to transfers made on or before October 8, 1990. P.L. 101-508, sec. 11602(e), 104 Stat. 1388-500. . “An ‘estate freeze' is a technique that has the effect of limiting the value of property held by an older generation at its current value and passing any appreciation in the property to a younger generation. Generally, the older generation retains income from, or control over, the property. To effect a freeze, the older generation transfers an interest in the property that is likely to appreciate while retaining an interest in the property that is less likely to appreciate. Because the value of" }, { "docid": "15449131", "title": "", "text": "the life estate could ever \"undo\" the estate tax consequences of the earlier donative transfer to the trust with a life estate retained, which was con-cededly within the predecessor to section 2036(a) and not within the exception thereto. Id. at 918 (\"As I read the statute the tax liability arises at the time of the inter vivos transfer under which there was a retention of the right to income for life. The disposition thereafter of that retained right does not eliminate the tax liability.”). The correctness of this view is of perhaps only tenuous relevance here, as here the deed from Melton to the Wheelers is within the section 2036(a) exception. In any event, we note that neither the Allen majority nor, so far as we are aware, any other authority, has embraced Judge Breiten- stein’s view as thus broadly stated. See, for example, 5 Bittker & Lokken, supra, at 126-27: \"... if the decedent transferred property subject to a retained life estate but later (more than three years before death) relinquished the life estate, § 2036(a)(1) does not apply, even though the decedent ‘retained’ the right to the income 'for life.’104 An unqualified transfer of property during life-even though effected in two or more steps-has long been recognized as being exclusively within the jurisdiction of the gift tax unless the final step was taken in contemplation of death or within three years of death.105 104 Cuddihy’s Est. v. C.I.R., 32 TC 1171, 1177, 1959 WL 1086 (1959) (retained right to trust income relinquished during decedent's life; alternative ground). See Ware's Est. v. C.I.R., 480 F.2d 444 (7th Cir.1973) (decedent-grantor was trustee with power to accumulate or distribute trust income, but resigned as trustee many years before dying; no inclusion under § 2036). 105 If a § 2036(a) right was relinquished within three years of death, the property is included in the gross estate, apparently as though the right has not been relinquished. IRC § 2035(d)(2), discussed supra ¶ 126.4.2. For the result under prior law where an otherwise taxable right was relinquished in contemplation of death, see U.S. v." }, { "docid": "15449121", "title": "", "text": "the reservations hereinafter made,\" the fee simple interest in the described 376 acres, and then provided: \"Except, however, that the grantor herein, [Melton] reserves, and it is hereby expressly agreed that he shall have, for himself and his assigns, the full possession, benefit and use of the above-described premises, as well as all of the rents, issues and profits thereof, for and during his natural life.” . The note was not nonrecourse and it expressly provided that each maker was personally responsible for the full amount of the note and for attorney's fees, and that matured unpaid principal and interest bore 18 percent per annum interest. . See note 6 infra and accompanying text. . The value of the ranch had declined by $240,-000 since the date of the sale of the remainder interest to John and David. The IRS has never questioned that the fair market value of the ranch was $1,314,200 imme-Melton’s estate appeals. diately before the July 13, 1984, deed to the Wheelers. .The magistrate judge and district court ruled in favor of the estate on a wholly unrelated issue concerning the valuation of the estate's stock in The Melton Company. That issue is not involved in this appeal. . See also I.R.C. § 2043(a), which provides: \"If any one of the transfers, trusts, interests, rights, or powers enumerated and described in sections 2035 to 2038, inclusive, and section 2041 is made, created, exercised, or relinquished for a consideration in money or money’s worth, but is not a bona fide sale for an adequate and full consideration in money or money's worth, there shall be included in the gross estate only the excess of the fair market value at the time of death of the property otherwise to be included on account of such transaction, over the value of the consideration received therefor by the decedent.” . Commentators have disagreed about the wisdom of a \"consideration offset” in the widow's election context. See Lowndes, supra; Johan-son, supra. This Court's Vardell decision has been described as mandating the inclusion of all of the surviving spouse's transferred property in" }, { "docid": "4733980", "title": "", "text": "424 of the Economic Recovery Tax Act of 1981,95 Stat. 172, added sec. 2035(d), which partially repeals this provision: SEC. 2035(d). Decedents Dying After 1981.— (1) In General. — Except as otherwise provided in this subsection, subsection (a) shall not apply to the estate of a decedent dying after December 31,1981. (2) Exceptions for certain transfers. — Paragraph (1) shall not apply to a transfer of an interest in property which is included in the value of the gross estate under section 2036, 2037, 2038, 2041, or 2042 or would have been included under any of such sections if such interest had been retained by the decedent. (3) 3-year rule retained for certain purposes. — Paragraph (1) shall not apply for purposes of— (A) section 303(b) (relating to distributions in redemption of stock to pay death taxes), (B) section 2032A (relating to special valuation of certain farm, etc., real property), (C) section 6166 (relating to extension of time for payment of estate tax where estate consists largely of interest in closely held business), and (D) subchapter C of chapter 64 (relating to lien for taxes). In this connection, we note the following explanation of the effective date provisions: \"In general, the amendments apply to the estates of decedents dying after December 31, 1976, and to gifts made after December 31,1976. However, the amendments relating to the estate tax treatment of transfers made within three years of a decedent’s death do not apply to transfers made before January 1,1977. The contemplation of death rules under prior law will apply to gifts made before January 1, 1977, where the decedent dies after December 31, 1976, and the transfer is made within 3 years of death. [General Explanation of the Tax Reform Act of 1976, Joint Comm, on Taxation, 94th Cong., 2d Sess. (1976), 1976-3 C.B. (Vol. 2) 1,542. Emphasis supplied.]” Petitioner also points out in her reply brief that the legislative history of the new sec. 2035(a) contains the statement: \"This provision applies to gifts made after December 31, 1976.” S. Rept. 94-1236 (1976), 1976-3 C.B. (Vol. 3) 807,958. Petitioner believes this" }, { "docid": "15449142", "title": "", "text": "children triggering section 2036(a). Id. The Tax Court held that, because the decedent furnished the entire consideration for the property which was subsequently \"unbundled” by the seller to accommodate the children's remainder interest, the decedent should be charged with making a \"transfer” with a \"retained” life estate, regardless of the properly law niceties. Shafer, 80 T.C. at 1162-63. The Sixth Circuit affirmed, observing that “the inclusion or circumvention of the intermediate step should not make a difference in the estate tax consequences of the transaction.” Shafer, 749 F.2d at 1221; see also Gordon v. Commissioner, 85 T.C. 309, 324-25, 1985 WL 15384 (1985) (stating that, \"[i]n the context of a simultaneous, joint acquisition from a third party ... formally separate steps in an integrated and interdependent series that is focused on a particular end result will not be afforded independent significance in situations in which an isolated examination of the steps will not lead to a determination reflecting the actual overall result of the series of steps.”). . Nor was there any evidence that his death was imminent at any time while the note was outstanding." }, { "docid": "11582046", "title": "", "text": "with affidavits that could form a basis for including this item in decedent’s gross estate. Chase was not recalled in rebuttal to Grigsby’s testimony. We are at a loss to understand what petitioner believes to be Grigsby’s improper actions, which petitioner states were \"fully developed at the trial” and which are supposed to \"cast grave doubts upon their [the affidavits’] legitimacy for any purpose.” We conclude that the documents are admissible to impeach Chase’s and Resor’s testimony. B. Application of Section 2036 Respondent contends that the value of lot No. 436 should be included in its entirety in decedent’s gross estate under section 2036, because decedent furnished all the consideration for the purchase of the property and so decedent should be treated as having indirectly transferred lot No. 436 to Chase and Resor, while retaining a life interest for himself. Petitioner maintains that decedent never made a transfer (within the meaning of section 2036) because the only interest decedent ever owned in lot No. 436 was the life interest he acquired in 1939. Further, petitioner maintains that Chase and Resor furnished full consideration in money or money’s worth for the remainder interests they acquired in lot No. 436. We agree with respondent. 1. In General Under section 2036(a), the value of property is includable in decedent’s gross estate if decedent made an inter vivos \"transfer” of the property and \"retained” a life interest in the transferred property. If consideration is received for the transfer but the amount is inadequate, then, under section 2043(a), the gross estate includes only the excess of the value of the property over the value of the consideration. 2. Consideration Paid Petitioner bears the burden of proving error in respondent’s determination in the notice of deficiency. Welch v. Helvering, 290 U.S. 111 (1933); Rule 142(a). Petitioner attempts to satisfy this obligation, as to the question of who furnished consideration for lot No. 436 in 1939, by relying on the language of the deed (\"in consideration of one dollar and other valuable considerations, paid by Eunice C. R. Shafer, Arthur C. Shafer, and Arthur Chase Shafer and" }, { "docid": "4733976", "title": "", "text": "3-year rule: SEC. 2035. ADJUSTMENTS FOR GIFTS MADE WITHIN 3 YEARS OF DECEDENT’S DEATH. (a) Inclusion op Gifts Made by Decedent. — Except as provided in subsection (b), the value of-the gross estate shall include the value of all property to the extent of any interest therein of which the decedent has at any time made a transfer, by trust or otherwise, during the 3-year period ending on the date of the decedent’s death. (b) Exceptions. — Subsection (a) shall not apply to: (1) any bona fide sale for an adequate and full consideration in money or money’s worth, and (2) any gift excludable in computing taxable gifts by reason of section 2503(b) (relating to $3,000 annual exclusion for purposes of the gift tax) determined without regard to section 2513(a). (c) Inclusion of Gift Tax on Certain Gifts Made During 3 Years Before Decedent’s Death. — The amount of the gross estate (determined without regard to this subsection) shall be increased by the amount of any tax paid under chapter 12 by the decedent or his estate on any gift made by the decedent or his spouse after December 31, 1976, and during the 3-year period ending on the date of the decedent’s death. As we understand their positions, the parties agree that new section 2035 is inapplicable. Furthermore, the parties have stipulated that the transfer of Margaret’s personal residence to her daughter on December 8, 1976, was a gift made in contemplation of death. Petitioner relies entirely on her contention that the old section 2035(a) does not apply to the estates of decedents dying after January 1,1977. Congress provided that new section 2035 \"shall apply to the estates of decedents dying after December 31, 1976; except that [new sec. 2035] * * * shall not apply to transfers made before January 1, 1977.” Tax Reform Act of 1976, Pub. L. 94-455, sec. 2001(d)(1), 90 Stat. 1520, 1854. From this language it is clear that the parties are correct in their assumption that the new section 2035(a) is inapplicable herein since the transfer in question was made prior to January" }, { "docid": "16979350", "title": "", "text": "$1,033 more than they paid her, and in 1986 she paid the Maxwells only $1,125 more than they paid her. Not only did the rent functionally cancel out the interest payments made by the Max-wells, but the Maxwells were at no time called upon to pay any of the principal on the $250,000 mortgage debt; it was forgiven in its entirety. As petitioner’s counsel admitted at oral argument, although the Maxwells had executed the mortgage note, “there was an intention by and large that it not be paid.” Pursuant to this intention, in each of the following years preceding her death, the decedent forgave $20,000 of the mortgage principal, and, by a provision of her will executed on March 16, 1984 (that is, just two days after the transfer), she forgave the remaining indebtedness. The decedent reported the sale of her residence on her 1984 federal income tax return but did not pay any tax on the sale because she elected to use the once-in-a-lifetime exclusion on the sale or exchange of a principal residence provided for by 26 U.S.C. § 121. She continued to occupy the house by herself until her death. At no time during her occupancy did the Maxwells attempt to sell the house to anyone else, but, on September 22, 1986, shortly after the decedent’s death, they did sell the house for $550,000. Under I.R.C. § 2036(a), where property is disposed of by a decedent during her lifetime but the decedent retains “possession or enjoyment” of it until her death, that property is taxable as part of the decedent’s gross estate, unless the transfer was a bona fide sale for an “adequate and full” consideration. 26 U.S.C. § 2036. On the decedent’s estate tax return, the Estate reported only the $210,000 remaining on the mortgage debt (following the decedent’s forgiveness of $20,000 in the two preceding years). The Commissioner found that the 1984 transaction constituted a transfer with retained life estate — rejecting the petitioners’ arguments that the decedent did not retain “possession or enjoyment” of the property, and that the transaction was exempt from section" }, { "docid": "15449141", "title": "", "text": "agreed to monthly payments without otherwise altering the terms of the note. . Melton, in fact, assigned the note in Decern-her 1986 in partial payment of a $231,444 debt he owed The Melton Company. . Unless, of course, Congress provides otherwise. See, e.g., I.R.C. § 2035(a) & (d)(2) (West 1989); I.R.C. §§ 2701-2704 (West Supp.1996). . And, where taxable, gifts are made within three years of death, the amount of gift tax paid thereon is also added to the gross estate under section 2035(c). . Estate of Shafer v. Commissioner, 80 T.C. 1145, 1983 WL 14846 (1983), aff'd, 749 F.2d 1216 (6th Cir.1984), is more appropriately seen as the type of transaction in which the decedent, in an intrafamily transfer, attempted a form-over-substance maneuver. In Shafer, the decedent \"had the grantors execute the deed so as to convey a remainder interest to [the children] as tenants in common while retaining a life estate for himself.” Shafer, 749 F.2d at 1221. Accordingly, the decedent's estate argued that there was no \"transfer” by the decedent to his children triggering section 2036(a). Id. The Tax Court held that, because the decedent furnished the entire consideration for the property which was subsequently \"unbundled” by the seller to accommodate the children's remainder interest, the decedent should be charged with making a \"transfer” with a \"retained” life estate, regardless of the properly law niceties. Shafer, 80 T.C. at 1162-63. The Sixth Circuit affirmed, observing that “the inclusion or circumvention of the intermediate step should not make a difference in the estate tax consequences of the transaction.” Shafer, 749 F.2d at 1221; see also Gordon v. Commissioner, 85 T.C. 309, 324-25, 1985 WL 15384 (1985) (stating that, \"[i]n the context of a simultaneous, joint acquisition from a third party ... formally separate steps in an integrated and interdependent series that is focused on a particular end result will not be afforded independent significance in situations in which an isolated examination of the steps will not lead to a determination reflecting the actual overall result of the series of steps.”). . Nor was there any evidence that his" }, { "docid": "15449136", "title": "", "text": "But where the transferor’s estate re ceives the full actuarial value of the transferred interest-an amount, as discussed above, that the Treasury Regulations assume will compound to reach the full value of the fee interest by the transferor's death-the government is made whole. If the entire underlying asset is also pulled back into the estate, the government comes out ahead,- for the section 2043(a) offset given for the amount paid when the remainder is transferred fails to recognize the interest assumptions underlying the actuarial tables. . The 1976 amendments also unified the rate schedules between the estate and gift taxes. Tax Reform Act of 1976, Pub.L. 94-455, 90 Stat. 1848.' . Under section 2035(d), however, the three-year rule of section 2035(a) continues to apply to a transfer of an interest included in the gross estate under sections 2036-2038, the sections that address transfers with retained interests, those taking effect at death, and revocable transfers. Accordingly, a transfer within three years of death of a retained life estate, as in Allen, would be subject to the three-year inclusion rule under the current formulation provided the transfer constituted a gift and was not a bona fide sale for an adequate and full consideration. See note 12, supra. Section 2035(c) includes in the gross estate the amount of any gift tax paid by decedent (or his estate) on any gift by decedent (or his spouse) after 1976 and during the three years before the decedent's death. Melton’s 1984 deed was not a taxable gift because it was for an adequate and full consideration as determined by the applicable tables under the regulations, as the government concedes (nor was it within three years of his death). . Some commentators embrace portions of the government's position.regarding testamentary intent and section 2036(a) by concluding that the nonadversarial aspect of intrafamily transfers taints them as necessarily donative. See, e.g., Jordan, Sales of Remainder Interests, at 717 (“While it may be the case that the consideration received in a non-arm's length transfer is sufficient to prevent depletion of the taxpayer's gross estate, the donative character of the transaction" }, { "docid": "15449132", "title": "", "text": "§ 2036(a)(1) does not apply, even though the decedent ‘retained’ the right to the income 'for life.’104 An unqualified transfer of property during life-even though effected in two or more steps-has long been recognized as being exclusively within the jurisdiction of the gift tax unless the final step was taken in contemplation of death or within three years of death.105 104 Cuddihy’s Est. v. C.I.R., 32 TC 1171, 1177, 1959 WL 1086 (1959) (retained right to trust income relinquished during decedent's life; alternative ground). See Ware's Est. v. C.I.R., 480 F.2d 444 (7th Cir.1973) (decedent-grantor was trustee with power to accumulate or distribute trust income, but resigned as trustee many years before dying; no inclusion under § 2036). 105 If a § 2036(a) right was relinquished within three years of death, the property is included in the gross estate, apparently as though the right has not been relinquished. IRC § 2035(d)(2), discussed supra ¶ 126.4.2. For the result under prior law where an otherwise taxable right was relinquished in contemplation of death, see U.S. v. Allen, 293 F.2d 916 (10th Cir.), cert, denied, 368 U.S. 944, 82 S.Ct. 378, 7 L.Ed.2d 340 (1961) (sale of life estáte for inadequate consideration); Rev. Rul. 56-324, 1956-2 CB 999.” The current structure of section 2035 seems to confirm the \"contemplation-of-death” approach implicit in Allen. Under section 2035(a), transfers within three years of death-the substitute for the former “contemplation-of-death” provision-are included in the gross estate. Under section 2035(b)(1), transfers for adequate and full consideration are exempted from section 2035(a). Under section 2035(d)(1), estates of decedents dying after December 31, 1981, are exempted from section 2035(a), but, by the terms of section 2035(d)(2), that exemption \"shall not apply to a transfer of an interest in property which is included in the value of the gross estate under sections 2036, 2037, 2038, or 2042 or would have been included under any of such sections if such interest had been retained by the decedent.” See generally 5 Bittker & Lokken, supra, at 126-34, 126-35. Thus, were the Allen facts present today- and the court again held the" }, { "docid": "1034693", "title": "", "text": "Chase and Resor. Rather, accepting the Tax Court’s factual findings, Arthur had the grantors execute the deed so as to convey a remainder interest to Chase and Resor as tenants in common while retaining a life estate for himself and Eunice. In form, therefore, only one transfer occurred: Whidden and Flanders conveyed a life estate to Arthur and Eunice with a remainder to Chase and Arthur as tenants in common. In substance, however, Arthur achieved in one step what might ordinarily take two. The effect of the transaction in the present case is merely to eliminate the intermediate step of Arthur receiving the land in fee; Arthur still retained the possession and enjoyment of the property while conveying a remainder interest to Chase and Resor. We believe that this constitutes a “transfer” under Section 2036(a); the inclusion or circumvention of the intermediate step should not make a difference in the estate tax consequences of the transaction. Our conclusion is consistent with the fact that the term “transfer” should be interpreted to effectuate the purpose of Section 2036(a). See, e.g., Foster v. United States, 303 U.S. 118, 120, 58 S.Ct. 424, 425, 82 L.Ed. 700 (1938). The general purpose of Section 2036(a) is to include in a decedent’s gross estate “transfers which leave the transferor a significant interest in or control over the property transferred.” United States v. Estate of Grace, 395 U.S. 316, 320, 89 S.Ct. 1730, 1733, 23 L.Ed.2d 332 (1969). Further, the Section was enacted to prevent the circumvention of the federal estate tax law by various inter vivos schemes. E.g., Estate of Wyly v. Commissioner, 610 F.2d 1282, 1290 (5th Cir.1980); Union Planters National Bank v. United States, 361 F.2d 662, 666 (6th Cir.1966). If the type of transaction which occurred in this case fell outside of Section 2036(a), a buyer of land could avoid having the land included in his or her gross estate simply by directing the grantor make out the deed in a particular manner. Such a result would permit the technicalities and diversities of property law to thwart the purposes of federal estate" }, { "docid": "15449139", "title": "", "text": "the transferred interest increases while the value of the retained interest remains relatively constant, the older generation has 'frozen' the value of the property in its estate.” 5 Bittker & Lokken, supra, at 136-2 (quoting Staff of Joint Comm, on Tax'n, 101st Cong., 2d Sess., Federal Tax Consequences of Estate Freezes at 9 (Comm. Print 1990)). . Paragraph (1) of former section 2036(c) applied only to \"transfers after December 17, 1987.” Id. § 2306(c)(1)(B). The 1990 repeal of former section 2036(c) was applicable to \"prop erty transferred after December 17, 1987.\" P.L. 101-508, sec. 11601(c), 104 Stat. 1388-491. . As the government's brief observed, a transfer of an interest in property is apparently treated as a transfer in trust if there is a term interest in the property. I.R.C. § 2702(c)(1). \"Term interest” is defined as either a life interest or a term of years. Id. § 2702(c)(3). . We again emphasize that we take no position as to how section 2702 would affect this particular transaction had it been entered into after October 8, 1990 (transfers prior thereto being excluded from section 2702; see note 21, supra). Although the special valuation rules do not apply where the holder of a life or term interest uses the property as his personal residence, I.R.C. § 2702(a)(3)(A)(ii), the Treasury Regulations provide that the personal residence exception applies only where the residence is placed in an irrevocable trust, 26 C.F.R. § 25.2702-5(b) (1996) (\"A [personal residence] trust does not meet the requirements of this section if ... the residence may be sold or- otherwise transferred by the trust or may be used for' a purpose other than as a personal residence of the term holder.”). Congress continues to tinker with the transfer tax scheme. A new clause added to section 2702 on August 20, 1996, strengthens the force of this Treasury Regulation. See Small Business Job Protection Act of 1996, Pub.L. No. 104-188, 110 Stat. 1755 (adding I.R.C. § 2702(a)(3)(A)(iii) (\"to the extent that regulations provide that such transfer is not inconsistent with the purposes of this section”)). . The parties soon thereafter" } ]

[ { "docid": "19976011", "title": "", "text": "this is incorrect as a matter of bankruptcy law. “Whether a lienholder has a ‘secured claim’ or an ‘unsecured claim,’ in the sense in which those terms are used in the bankruptcy code, depends on whether the lienholder’s interest in the collateral has economic value.” Id. at 664. Therefore, a second mortgagee, like Appellant, whose lien on a Chapter 13 debtor’s property is “completely under water,” holds an unsecured claim, regardless of the fact that the second mortgage was secured by a lien on the debtor’s principal residence. Id. Though paradoxical, a lienholder may be both the holder of a “claim secured only by a security interest in real property that is the debtor’s home” and the holder of an “unsecured claim” if that security interest is devoid of any actual economic value. “[0]nly the rights secured by some remaining equity will be protected from modification.” Tanner, 217 F.3d at 1360. Therefore, because the first lien on the Property exceeds the equity remaining in the home, Appellant’s secondary lien is wholly unsecured, and its interests may be modified by the Chapter 13 plan, pursuant to § 1322(b)(2). This conclusion is consistent with all six Courts of Appeals to have directly considered the issue, as well as two Bankruptcy Appellate Panels. See Zimmer v. PSB Lending Corp., 313 F.3d 1220 (9th Cir.2002); Lane, 280 F.3d 663; Pond v. Farm Specialist Realty, 252 F.3d 122 (2d Cir.2001); Tanner, 217 F.3d 1357; Bartee, 212 F.3d 277; McDonald v. Master Fin., Inc., 205 F.3d 606 (3d Cir.2000); Domestic Bank v. Mann, 249 B.R. 831 (1st Cir. BAP 2000); Lam v. Investors Thrift, 211 B.R. 36 (9th Cir. BAP 1997). Appellant’s policy argument similarly misses the mark. Although Justice Stevens did recognize a congressional policy in favor of promoting home lending, other courts have interpreted this as applying only to first or purchase-money mortgag es. See Zimmer, 313 F.3d at 1227. “Because second mortgages are rarely used to purchase a home, making wholly unsecured second mortgages subject to the anti-modification clause would have at best a minimal impact in encouraging home building and buying.” McDonald," } ]

[ { "docid": "4562292", "title": "", "text": "re Pond), 252 F.3d 122, 124-27 (2d Cir.2001); Tanner v. FirstPlus Fin., Inc. (In re Tanner), 217 F.3d 1357, 1358-60 (11th Cir.2000); Bartee v. Tara Colony Homeowners Ass’n (In re Bartee), 212 F.3d 277, 296 (5th Cir.2000); McDonald v. Master Fin., Inc. (In re McDonald), 205 F.3d 606, 615 (3d Cir.2000). Although not directly addressing the issue, the Seventh Circuit recently acknowledged the widespread view that § 1322(b)(2) allows lien stripping and did not foretell charting a different course, stating: “[Despite [§ 1322(b)(2)’s antimodification provision], courts allow a Chapter 13 plan to eliminate a secured junior claim (such as a claim secured by a second mortgage) against residential property if the security interest no longer has value because what the debtors owe holders of liens senior to this creditor’s lien (the holder of a first mortgage for example) exceeds the value of the property.” Palomar, 722 F.3d at 995. 2 Most of the decisions allowing lien stripping under § 1322(b)(2) involve recourse claims. And it is easy to understand eliminating an underwater lien as a “modification” of a claimholder’s rights when the holder has the right to collect the amount owed from both the property and from the debtor personally. In that instance, the chapter 13 plan modifies the creditor’s rights by eliminating the creditor’s right to collect the amount owed from the property, leaving only the right to collect from the debtor personally — oversimplifying, a set of two rights is “modified” by changing it to a set containing only one right. See In re Kirchner, 216 B.R. 417, 421-22 (Bankr.W.D.Wis.1997). But where, as here, the debtors’ personal liabilities have been discharged and the creditor’s claim consists entirely of an underwater lien, the plan’s proposed elimination of the lien is less obviously a “modification” of the claimholder’s rights. “Modify” typically means to change some parts of a thing while leaving other parts unchanged. See, e.g., New OxfoRD AmeRI-oan Dictionary 1124 (3d ed. 2010) (defining “modify” as an action to “make partial or minor changes to (something), typically so as to improve it or to make it less extreme”). As" }, { "docid": "14395", "title": "", "text": "the evidence in the light most favorable to the party opposing the motion. See, e.g., Charbonnages de France v. Smith, 597 F.2d 406 (4th Cir.1979). If the moving party demonstrates that there is no genuine issue of material fact, the burden shifts to the nonmoving party to demonstrate that there is indeed a genuine issue for trial. RGI, Inc. v. Unified Indus., Inc., 963 F.2d 658, 661 (4th Cir.1991); Fed.R.Civ.P. 56(e). Bankruptcy Code: Secured or Unsecured Bankruptcy Code § 506(a) “defines the secured and unsecured components of a creditor’s allowed claim in accordance with the value of underlying collateral.” Whitmore v. Household Financial Services (In re Whitmore), 2001 WL 34047307, at *2 (Bankr.E.D.Va.2001). An allowed secured claim of a creditor secured by a lien on property in which the estate has an interest ... is a secured claim to the extent of the value of such creditor’s interest in the estate’s interest in such property ... and is an unsecured claim to the extent that the value of such creditor’s interest or the amount so subject to set off is less than the amount of such allowed claim. Such value shall be determined in light of the purpose of the valuation and of the proposed disposition or use of such property .... 11 U.S.C. § 506(a). Section 1322(b)(2) permits a bankruptcy plan to “modify the rights of holders of ... unsecured claims ...,” but prohibits the modification of “a claim secured only by a security interest in real property that is the debtor’s principal residence ....” A wholly unsecured lien receives no protection under the antimodification provision of § 1322(b)(2), and a debtors’ chapter 13 plan can void, or “strip off,” this lien. Pond v. Farm Specialist Realty (In re Pond), 252 F.3d 122, 126, 127 (2nd Cir.2001); followed by In re Whitmore at *2. But an undersecured lien where “some portion” of the lien is secured by a debtor’s principal residence does benefit from the anti modification provisions of § 1322(b)(2), and § 1322(b)(2) protects creditor’s rights in the lien in their entirety. In re Pond, 252 F.3d at" }, { "docid": "10301889", "title": "", "text": "of the property is less than the claim held by Suntrust, thereby rendering Chase’s claim, as second in priority, unsecured. In a Chapter 13 case, section 1322(b)(2) provides special treatment for creditors with a mortgage on the debtor’s home. Specifically, section 1322(b)(2) permits a debtor’s Chapter 13 plan to “modify the rights of holders of secured claims, other than a claim secured only by a security interest in real property that is the debt- or’s principal residence.” 11 U.S.C. § 1322(b)(2). The Supreme Court held in Nobleman v. Am. Savings Bank that section 1322(b)(2) protects from modification only an unsecured portion of a partially secured claim (on a debtor’s primary residence) determined under section 506 of the Bankruptcy Code. In re Berrouet, 469 B.R. 393, 396 (Bankr.N.D.Ga.2012) (Diehl, B.J.) (citing Nobleman v. Am. Savings Bank, 508 U.S. 324, 113 S.Ct. 2106, 2111, 124 L.Ed.2d 228 (1993)). However, Eleventh Circuit precedent does not limit a debtor’s ability under section 1322(b)(2) to use section 506 to value collateral, determine the secured portion of a secured residential mortgage, and modify said mortgage, when the junior lien is wholly unsecured. Id. (citing Tanner v. FirstPlus Fin., Inc. (In re Tanner), 217 F.3d 1357, 1360 (11th Cir.2000)). The Debtors are correct in their analysis of sections 506 and 1322, that a lien strip is proper based upon the facts as set forth by the Debtors. Specifically, the fair market value of the Debtors’ residence was $376,000.00 on the petition date, Sun-trust’s first priority security deed was $384.217.87, and the second priority security deed held by Chase was $91,316.22. Based on those values, Chase’s claim is wholly unsecured and subject to being stripped in accordance with In re Tanner. See generally In re Tanner, 217 F.3d 1357 (11th Cir.2000). However, the fundamen- tais of Tanner are not the questions before the Court. The central issue before the Court is whether the Debtors may strip the lien of Chase through the Motion to Strip and the Plan Modification after the confirmation of the Chapter 13 plan. The Debtors argue that a secondary lien may be stripped using" }, { "docid": "20239150", "title": "", "text": "secured claims, rather than the modification of a secured claim. It does not change the rights immediately allowing the permanent modification of a secured claim to unsecured status, as strip off or avoidance occurs at discharge. Debtors’ position that they can bifurcate the unsecured junior mortgage debt pursuant to § 506(a), and avoid the lien immediately is not well taken. Wells Fargo objects to the bifurcation'of the junior mortgage debt, arguing that such modification is improper under § 1322(b)(2). In Nobelman v. American Savings Bank, 508 U.S. 324, 113 S.Ct. 2106, 124 L.Ed.2d 228, the Supreme Court held that a Chapter 13 debtor who had a single mortgage with a balance greater than the value of the residence it was attached to, could not divide the mortgage into secured and unsecured portions pursuant to section 506(a). The court held that the full balance of the mortgage was governed by the antimodification clause of § 1322(b)(2). The opinion left unresolved whether the antimodification clause applies to a junior mortgage if that debt is wholly unsecured by any value in the property. Each circuit court of appeals that has considered this issue has held that § 1322(b)(2) does not prohibit avoidance of liens associated with wholly unsecured claims. See, e.g., Lane v. W. Interstate Bancorp (In re Lane), 280 F.3d 663, 667-69 (6th Cir.2002); Pond v. Farm Specialist Realty (In re Pond), 252 F.3d 122, 126 (2d Cir.2001); Tanner v. FirstPlus Fin., Inc. (In re Tanner), 217 F.3d 1357, 1359-60 (11th Cir.2000); Bartee v. Tara Colony Homeowners Ass’n., et al (In re Bartee), 212 F.3d 277, 292 (5th Cir.2000); McDonald v. Master Fin., Inc. (In re McDonald), 205 F.3d 606, 615 (3d Cir.2000). Two Bankruptcy Appellate Panels have held likewise. See, e.g., Domestic Bank v. Mann (In re Mann), 249 B.R. 831, 840 (1st Cir. BAP 2000); Lam v. Investors Thrift, et al. (In re Lam), 211 B.R. 36, 41 (9th Cir. BAP 1997). The Seventh Circuit has not ruled on this issue. The five courts of appeals and two bankruptcy appellate panels that have ruled that a wholly unsecured junior mortgage" }, { "docid": "17717432", "title": "", "text": "claim.); In re Hornes, 160 B.R. 709 (Bankr.D.Conn.1993) (in depth analysis parsing the language of § 1322(b)(2) and considering its treatment in light of Nobelman, finding that a Chapter 13 plan could modify the rights of junior mortgagee whose claim was wholly unsecured, mortgagee did not qualify as creditor whose claim was “secured by an interest in property that was debtor’s principal residence,” within meaning of statute); In re Purdue, 187 B.R. 188 (S.D.Ohio 1995) (allowing strip off under § 506(a), holding that second mortgagees claim does not include secured claim component where value of residence is less than senior mortgage lien); Wright v. Commercial Credit Corp., 178 B.R. 703 (E.D.Va.1995) (first District Court decision concluding prohibition against modification applies only when debtor has some equity in residence, after satisfaction of prior liens; prohibition against lien stripping does not apply when creditor’s claim is completely unsecured); In re Sette, 164 B.R. 453 (Bankr.E.D.N.Y.1994) (treating entirely unsecured second mortgage lien as general unsecured claim and avoiding lien in its entirety pursuant to 11 U.S.C. 506(a) and (d)); In re Castellanos, 178 B.R. 393 (Bankr.M.D.Pa.1994) (applying the test under § 506(a) to determine whether the protection of the anti-modification clause applies and then allowing modification of unsecured claim under § 1322(b)(2)); In re Moncrief, 163 B.R. 492 (Bankr.E.D.Ky.1993) (holding that § 1322(b)(2) does not preclude modification by a Chapter 13 plan of the ‘rights’ of holders of unsecured claims, but rather restricts modification of the ‘rights’ of holders of secured claims secured only by a security interest in real property that is the debtor’s principal residence); In re Mitchell, 177 B.R. 900 (Bankr.E.D.Mo.1994) (allowing strip off of unsecured claim citing a “plethora” of cases post-Nobelman, reaching the same result); In re Thomas, 177 B.R. 750 (Bankr.S.D.Ga. 1995) (claim must be secured in some way by the residence to be entitled to protection against modification); In re Lee, 177 B.R. 715 (Bankr.N.D.Ala.1995) (claims of third and fourth mortgagees could properly be treated as unsecured where value of Chapter 13 debtor’s residence was less than balance owed on first and second mortgages); In re" }, { "docid": "6162845", "title": "", "text": "no dispute that the secured portion of the mortgage could not be modified, and under such circumstances there was no direction in the Bankruptcy Code as to how the terms of the mortgage could be readjusted by reducing its value to the secured portion without modifying the “rights” of the mortgage holder. Id. at 331-332, 113 S.Ct. 2106. Justice Stevens also noted, in a brief concurrence, that the Court’s result was in accordance with “legislative history indicating that favorable treatment of residential mortgagees was intended to encourage the flow of capital into the home lending market.” Id. at 332, 113 S.Ct. 2106 (Stevens, J., concurring) (citing Grubbs v. Houston First Am. Sav. Ass’n, 730 F.2d 236, 245-46 (1st Cir.1984)). The majority position The majority position, that § 1322(b)(2) does not prohibit avoidance of liens associated with wholly unsecured claims, has been adopted by all five Courts of Appeals to consider the issue, as well as two Bankruptcy Appellate Panels. Lane v. W. In terstate Bancorp (In re Lane), 280 F.3d 663, 667-69 (6th Cir.2002); Pond v. Farm Specialist Realty (In re Pond), 252 F.3d 122, 126 (2d Cir.2001); Tanner v. FirstPlus Fin., Inc. (In re Tanner), 217 F.3d 1357, 1359-60 (11th Cir.2000); Bartee, supra, 212 F.3d at 288, 295; McDonald v. Master Fin., Inc. (In re McDonald), 205 F.3d 606, 611 (3d Cir.2000); Domestic Bank v. Mann (In re Mann), 249 B.R. 831, 840 (B.A.P. 1st Cir.2000); Lam, supra, 211 B.R. at 40-41. One of the earliest and most influential of these cases is • our BAP’s opinion in Lam. The panel gave three primary reasons for its conclusion that a wholly unsecured hen may be avoided: 1) although the Nobelman Court focused on the rights of the creditor, the “rights” of a wholly unsecured creditor are “empty rights”; 2) in order to qualify for the antimodification protections, the creditor must first be a “holder of a secured claim”; and 3) extending antimodification protection might have the unwanted effects of inducing more filings under Chapter 11 and inducing creditors to obtain mortgages on overburdened property in order to avoid modification" }, { "docid": "4562291", "title": "", "text": "328, 113 S.Ct. 2106. Thus, § 506(a)’s inquiry into whether there is value in property to which a lien can attach determines whether a claim is “secured” or “unsecured” for purposes of § 1322(b)(2). If there is such value and the claim is secured only by the debtor’s principal residence, the claim is “secured” for purposes of § 1322(b)(2), and the debtor’s chapter 13 plan cannot modify the claimholder’s rights. If, however, there is no value to which the lien can attach, the claim is “unsecured” for purposes of § 1322(b)(2), and the antimodification provision does not apply. Following this reasoning, every court of appeals to consider the issue has held that a chapter 13 plan can eliminate a wholly underwater lien that encumbers a debtor’s principal residence. See Branigan v. Davis (In re Davis), 716 F.3d 331, 334-36 (4th Cir.2013); Zimmer v. PSB Lending Corp. (In re Zimmer), 313 F.3d 1220, 1224-27 (9th Cir.2002); Lane v. W. Interstate Bancorp (In re Lane), 280 F.3d 663, 666-69 (6th Cir.2002); Pond v. Farm Specialist Realty (In re Pond), 252 F.3d 122, 124-27 (2d Cir.2001); Tanner v. FirstPlus Fin., Inc. (In re Tanner), 217 F.3d 1357, 1358-60 (11th Cir.2000); Bartee v. Tara Colony Homeowners Ass’n (In re Bartee), 212 F.3d 277, 296 (5th Cir.2000); McDonald v. Master Fin., Inc. (In re McDonald), 205 F.3d 606, 615 (3d Cir.2000). Although not directly addressing the issue, the Seventh Circuit recently acknowledged the widespread view that § 1322(b)(2) allows lien stripping and did not foretell charting a different course, stating: “[Despite [§ 1322(b)(2)’s antimodification provision], courts allow a Chapter 13 plan to eliminate a secured junior claim (such as a claim secured by a second mortgage) against residential property if the security interest no longer has value because what the debtors owe holders of liens senior to this creditor’s lien (the holder of a first mortgage for example) exceeds the value of the property.” Palomar, 722 F.3d at 995. 2 Most of the decisions allowing lien stripping under § 1322(b)(2) involve recourse claims. And it is easy to understand eliminating an underwater lien as a" }, { "docid": "6162846", "title": "", "text": "v. Farm Specialist Realty (In re Pond), 252 F.3d 122, 126 (2d Cir.2001); Tanner v. FirstPlus Fin., Inc. (In re Tanner), 217 F.3d 1357, 1359-60 (11th Cir.2000); Bartee, supra, 212 F.3d at 288, 295; McDonald v. Master Fin., Inc. (In re McDonald), 205 F.3d 606, 611 (3d Cir.2000); Domestic Bank v. Mann (In re Mann), 249 B.R. 831, 840 (B.A.P. 1st Cir.2000); Lam, supra, 211 B.R. at 40-41. One of the earliest and most influential of these cases is • our BAP’s opinion in Lam. The panel gave three primary reasons for its conclusion that a wholly unsecured hen may be avoided: 1) although the Nobelman Court focused on the rights of the creditor, the “rights” of a wholly unsecured creditor are “empty rights”; 2) in order to qualify for the antimodification protections, the creditor must first be a “holder of a secured claim”; and 3) extending antimodification protection might have the unwanted effects of inducing more filings under Chapter 11 and inducing creditors to obtain mortgages on overburdened property in order to avoid modification of their rights. 211 B.R. at 40-41. Other courts have focused primarily on the second reason cited in Lam, that a creditor that is not the holder of a secured claim simply cannot qualify for antimodifi-cation protection. The Sixth Circuit in Lane outlines this argument in near-syllogistic fashion: • Section 1322(b)(2) prohibits modification of the rights of a holder of a secured claim if the security consists of a lien on the debtor’s principal residence; • Section 1322(b)(2) permits modification of the rights of an unsecured claimholder; • Whether a lien claimant is the holder of a “secured claim” or an “unsecured claim” depends, thanks to § 506(a), on whether the claimant’s security interest has any actual “value” ... • If a claimant’s lien on the debtor’s homestead has no value at all ... the claimant holds an “unsecured claim” and the claimant’s contractual rights are subject to modification by the plan. 280 F.3d at 669. This argument is appealing in its simplicity and reliance on the plain text of the statute. Without a secured" }, { "docid": "3694433", "title": "", "text": "12 and 13. In re Bartee, 212 F.3d 277, 291 n. 21 (5th Cir.2000). In chapter 13, the debtor’s plan may “modify the rights of holders of secured claims, other than a claim secured only by a security interest in real property that is the debtor’s principal residence, or of holders of unsecured claims, or leave unaffected the rights of holders of any class of claims ...” § 1322(b)(2) (emphasis added). The Supreme Court interpreted § 1322(b)(2) to prohibit a homestead mortgage lien from being stripped down to the value of the collateral, reading the language “a claim secured only by a security interest in real property” as “referring to the lienholder’s entire claim, including both the secured and the unsecured components of the claim.” Nobelman v. Am. Savings Bank, 508 U.S. 324, 331, 113 S.Ct. 2106, 124 L.Ed.2d 228 (1993). But this does not deal with the situation, presented by the case at bar, where the lien is completely unsecured—i.e., “a junior lien on a residence if the amount of a senior lien on a residence exceeds the value of the residence.” Tran, 431 B.R. at 234. Courts are generally in agreement that the junior lien can be “stripped-off’ under such circumstances in chapter 13. The “antimodi-flation exception of Section 1322(b)(2) protects a creditor’s rights in a mortgage lien only where the residence retains enough value ... so that the lien is at least partially secured under Section 506(a).... [A] wholly unsecured claim, as defined under Section 506(a), is not protected under the antimodification exception of Section 1322(b)(2).” In re Pond, 252 F.3d 122, 126 (2d Cir.2001); see also Bartee, Mann, supra; In re Tanner, 217 F.3d 1357 (11th Cir.2000); In re Zimmer, 313 F.3d 1220 (9th Cir.2002); In re Lane, 280 F.3d 663 (6th Cir.2002); In re McDonald, 205 F.3d 606 (3d Cir.2000); In re Griffey, 335 B.R. 166 (10th Cir. BAP 2005); In re King, 290 B.R. 641 (Bankr.C.D.Ill.2003). All of which brings us to § 1328(f)(1), and the more narrow issue presented by this appeal. Enacted as part of the Bankruptcy Abuse Prevention and Consumer Prevention" }, { "docid": "16761433", "title": "", "text": "Hoffman, 433 B.R. 437, 440 (Bankr. M.D.Fla.2010). In In re Hoffman, the court recognized that public policy concerns may favor modification of the rights of secured creditors in economic crises such as the present one, where a significant number of homes are worth less than the senior liens encumbering them (let alone the junior liens). Nonetheless, the court held that it “cannot deviate from the Supreme Court’s binding interpretation of § 506(d) in Dewsnup. Congress has had many years to overturn Dewsnup by legislative action but has enacted no statutory change. Until it does, Dewsnup remains the law of the land.” In re Hoffman, 433 B.R. at 441. Dewsnup does not preclude hen stripping in chapter 13 cases. However, a chapter 13 debtor may not strip down a lien secured solely by a debtor’s principal residence. 11 U.S.C. § 1322(b)(2); Nobelman v. American Savings Bank, 508 U.S. 324, 113 S.Ct. 2106, 124 L.Ed.2d 228 (1993). Nonetheless, in the Eleventh Circuit, as well as several other circuits, a debtor may strip off a lien even if it is secured solely by a debtor’s principal residence, if the creditor’s claim is completely unsecured because the property is worth less than the senior liens. Tanner v. FirstPlus Financial, Inc. (In re Tanner), 217 F.3d 1357 (11th Cir.2000). In Tanner, the Eleventh Circuit held that, notwithstanding Nobelman, the protections of 11 U.S.C. § 1322(b)(2) afforded to holders of secured claims “secured only by a security interest in real property that is the debtor’s principal residence,” do not apply to wholly unsecured homestead mortgages. “[0]nly the rights secured by some remaining equity will be protected from modification.” 217 F.3.d at 1360. Because the Debtors here are in chapter 13, they argue that Tanner supports their efforts to value collateral and strip off the junior liens. However, Tanned is inapposite. The Eleventh Circuit focused its attention on the interplay between section 506(a) and section 1322(b)(2) in light of the Nobelman holding. It did not consider how section 1325(a) and a prior bankruptcy discharge might impact the treatment of a lien. As discussed later, there are several" }, { "docid": "3825712", "title": "", "text": "Nobelman had a primary residence valued at $23,500 and a first mortgage claim for $71,335. The debtors' Chapter 13 plan proposed to bifurcate the mortgagee’s claim under § 506(a) into a secured claim of $23,500 and an unsecured claim of $47,835. Nobelman, 508 U.S. at 326, 113 S.Ct. 2106. . The minority view prohibits the avoidance of a wholly unsecured homestead lien. . But see Am. Gen. Fin., Inc. v. Dickerson (In re Dickerson), 222 F.3d 924, 926 (11th Cir.2000) (explaining that had the panel not been bound by the prior Tanner panel decision, the instant panel would adopt the minority view). . The fact that the bankruptcy court’s Order Granting Motion to Avoid Lien on Debtors' Principal Residence stipulates that SunTrust’s lien “shall be avoided ... at such time as a discharge Order is entered’’ does not change the result. See 8 Collier on Bankruptcy P 349.03 (\"[S]ection 349(b) [of the Bankruptcy Code] specifies that the dismissal of a case reinstates voided liens”) (15th ed. rev.2009); Flowers v. Firstplus Fin., Inc.(In re Flowers), 1999 WL 118022, at *5, 1999 Bankr.LEXIS 1192, at *18 (Bankr.E.D.Va. Jan. 14, 1999) (“Conditioning avoidance upon the debtors’ receipt of a discharge seems appropriate, since dismissal, whether voluntary or involuntary, of the debtors’ case prior to discharge would have the legal effect of restoring First-Plus’s lien.”). . SunTrust further decries the purported unfairness of this result by arguing that, given the longer length of its loan terms and the cyclical nature of real estate, it is unjust for a debtor to avoid a loan based on a short-term downturn in the real estate market. Unfortunately, the Millards were forced to file bankruptcy, and the Bankruptcy Code “provides that valuations must be performed and they must be given effect.’’ Johnson, 226 B.R. at 369. While it is true that the Millards’ home may appreciate in value in the future, a judicial valuation must be given to finalize the Millards’ Chapter 13 plan. Cf. In re Mann, 249 B.R. at 838 (\"[I]f the possibility of property appreciation were to preclude lien avoidance, no final determination could ever" }, { "docid": "20381210", "title": "", "text": "of whether a bankruptcy court may strip off a valueless lien in a typical Chapter 13 proceeding. The answer, in the view of those circuits to have considered the question, is that a bankruptcy court may grant such relief. See Zimmer v. PSB Lending Corp. (In re Zimmer), 313 F.3d 1220 (9th Cir.2002); Lane v. W. Interstate Bancorp (In re Lane), 280 F.3d 663 (6th Cir.2002); Pond v. Farm Specialist Realty (In re Pond), 252 F.3d 122 (2d Cir.2001); Tanner v. FirstPlus Fin. (In re Tanner), 217 F.3d 1357 (11th Cir.2000); Bartee v. Tara Colony Homeowners Ass’n (In re Bartee), 212 F.3d 277 (5th Cir.2000); McDonald v. Master Fin. (In re McDonald), 205 F.3d 606 (3d Cir.2000). We too have affirmed, albeit in unpublished opinions, the stripping off of valueless liens against principal residences in Chapter 13 cases. See First Mariner Bank v. Johnson (In re Johnson), 407 Fed.Appx. 713 (4th Cir.2011); Suntrust Bank v. Millard (In re Millard), 404 Fed.Appx. 804 (4th Cir.2010). To exercise this authority, bankruptcy courts rely on sections 506 and 1322(b) of the Bankruptcy Code. First, courts apply the valuation procedure in section 506(a): An allowed claim of a creditor secured by a lien on property in which the estate has an interest ... is a secured claim to the extent of the value of such creditor’s interest in the estate’s interest in such property ... and is an unsecured claim to the extent that the value of such creditor’s interest ... is less than the amount of such allowed claim. In other words, a claim’s status as secured or unsecured depends on the value of the collateral. Next, courts look to section 1322(b)(2), which provides that, subject to certain exceptions not relevant here, a Chapter 13 bankruptcy plan may modify the rights of holders of secured claims, other than a claim secured only by a security interest in real property that is the debtor’s principal residence, or of holders of unsecured claims, or leave unaffected the rights of holders of any class of claims[.] Applying this framework, a completely valueless lien is classified as" }, { "docid": "20381209", "title": "", "text": "petition in bad faith. On January 5, 2011, the bankruptcy court granted Moore’s motion to strip off the second lien. Subsequently, the bankruptcy court confirmed Moore’s plan and adopted Judge Lipp’s rationale to overrule the Trustee’s objection to the lien-stripping component of the confirmation order. The Trustee appealed, and the district court affirmed. We have jurisdiction to consider these appeals under 28 U.S.C. § 158(d). II. The question presented is whether BAPCPA precludes the stripping off of valueless liens by Chapter 20 debtors ineligible for a discharge. In a bankruptcy appeal, “we review the district courtf’s] decision de novo, effectively standing in its shoes to consider directly the findings of fact and conclusions of law by the bankruptcy court.” Morris v. Quigley (In re Quigley), 673 F.3d 269, 271 (4th Cir.2012) (internal quotations omitted). “[W]e review legal conclusions by the bankruptcy court de novo and may overturn its factual determinations only upon a showing of clear error.” Id (internal quotations omitted). A. Before reaching the issue raised by the Trustee, we consider the threshold question of whether a bankruptcy court may strip off a valueless lien in a typical Chapter 13 proceeding. The answer, in the view of those circuits to have considered the question, is that a bankruptcy court may grant such relief. See Zimmer v. PSB Lending Corp. (In re Zimmer), 313 F.3d 1220 (9th Cir.2002); Lane v. W. Interstate Bancorp (In re Lane), 280 F.3d 663 (6th Cir.2002); Pond v. Farm Specialist Realty (In re Pond), 252 F.3d 122 (2d Cir.2001); Tanner v. FirstPlus Fin. (In re Tanner), 217 F.3d 1357 (11th Cir.2000); Bartee v. Tara Colony Homeowners Ass’n (In re Bartee), 212 F.3d 277 (5th Cir.2000); McDonald v. Master Fin. (In re McDonald), 205 F.3d 606 (3d Cir.2000). We too have affirmed, albeit in unpublished opinions, the stripping off of valueless liens against principal residences in Chapter 13 cases. See First Mariner Bank v. Johnson (In re Johnson), 407 Fed.Appx. 713 (4th Cir.2011); Suntrust Bank v. Millard (In re Millard), 404 Fed.Appx. 804 (4th Cir.2010). To exercise this authority, bankruptcy courts rely on sections 506 and" }, { "docid": "17717431", "title": "", "text": "with the “additional collateral” limitation analyzed in Eastwood, some courts have adopted an expansive reading of the Nobelman decision, while other courts have more narrowly construed the Supreme Court’s prohibition on lien stripping as outlined in Nobelman, by concluding that Congress intended to strictly limit the protection of claims under § 1322(b)(2). The vast majority of courts however to have considered this specific limitation on the ability of a debtor to strip off a totally unsecured claim have construed Nobelman narrowly, by finding that the Bankruptcy Code’s anti-modification provision, § 1322(b)(2), does not apply to holders of totally unsecured claims. In re Plouffe, 157 B.R. 198 (early and often cited decision holding that to be entitled to protection of § 1322(b)(2), prohibiting any modification of rights of a creditor whose claim is secured solely by interest in the debtor’s homestead, the second mortgagee must have at least some interest in property securing its claim after satisfaction of the senior mortgage; wholly unsecured second mortgage can be reduced to value of zero and treated as unsecured claim.); In re Hornes, 160 B.R. 709 (Bankr.D.Conn.1993) (in depth analysis parsing the language of § 1322(b)(2) and considering its treatment in light of Nobelman, finding that a Chapter 13 plan could modify the rights of junior mortgagee whose claim was wholly unsecured, mortgagee did not qualify as creditor whose claim was “secured by an interest in property that was debtor’s principal residence,” within meaning of statute); In re Purdue, 187 B.R. 188 (S.D.Ohio 1995) (allowing strip off under § 506(a), holding that second mortgagees claim does not include secured claim component where value of residence is less than senior mortgage lien); Wright v. Commercial Credit Corp., 178 B.R. 703 (E.D.Va.1995) (first District Court decision concluding prohibition against modification applies only when debtor has some equity in residence, after satisfaction of prior liens; prohibition against lien stripping does not apply when creditor’s claim is completely unsecured); In re Sette, 164 B.R. 453 (Bankr.E.D.N.Y.1994) (treating entirely unsecured second mortgage lien as general unsecured claim and avoiding lien in its entirety pursuant to 11 U.S.C. 506(a) and" }, { "docid": "10301890", "title": "", "text": "and modify said mortgage, when the junior lien is wholly unsecured. Id. (citing Tanner v. FirstPlus Fin., Inc. (In re Tanner), 217 F.3d 1357, 1360 (11th Cir.2000)). The Debtors are correct in their analysis of sections 506 and 1322, that a lien strip is proper based upon the facts as set forth by the Debtors. Specifically, the fair market value of the Debtors’ residence was $376,000.00 on the petition date, Sun-trust’s first priority security deed was $384.217.87, and the second priority security deed held by Chase was $91,316.22. Based on those values, Chase’s claim is wholly unsecured and subject to being stripped in accordance with In re Tanner. See generally In re Tanner, 217 F.3d 1357 (11th Cir.2000). However, the fundamen- tais of Tanner are not the questions before the Court. The central issue before the Court is whether the Debtors may strip the lien of Chase through the Motion to Strip and the Plan Modification after the confirmation of the Chapter 13 plan. The Debtors argue that a secondary lien may be stripped using the “lien-strip” method approved in In re Tanner after confirmation of a Chapter 13 plan in accordance with section 502(j) of the Bankruptcy Code and Rule 3008 of the Federal Rules of Bankruptcy Procedure. Specifically, the Debtors argue that section 1329, which governs modification of a Chapter 13 plan, should be applied in the same manner as section 502(j) and Rule 3008. The Court will address the argument presented by the Debtors. I. Res Judicata effect of the Chapter IS Plan Confirmation As an initial matter, the Court recognizes the res judicata effect that the confirmation of the Chapter 13 Plan bestows in the instant case. Section 1327 provides that “[t]he provisions of a confirmed plan bind the debtor and each creditor, whether or not such creditor has objected to, has accepted, or has rejected the plan.” 11 U.S.C. § 1327 (emphasis added). The finality of the confirmation order extends to both the debtor and the creditor as, upon entry of said order and absent a timely appeal or proceeding to revoke confirmation, both sides" }, { "docid": "20239151", "title": "", "text": "any value in the property. Each circuit court of appeals that has considered this issue has held that § 1322(b)(2) does not prohibit avoidance of liens associated with wholly unsecured claims. See, e.g., Lane v. W. Interstate Bancorp (In re Lane), 280 F.3d 663, 667-69 (6th Cir.2002); Pond v. Farm Specialist Realty (In re Pond), 252 F.3d 122, 126 (2d Cir.2001); Tanner v. FirstPlus Fin., Inc. (In re Tanner), 217 F.3d 1357, 1359-60 (11th Cir.2000); Bartee v. Tara Colony Homeowners Ass’n., et al (In re Bartee), 212 F.3d 277, 292 (5th Cir.2000); McDonald v. Master Fin., Inc. (In re McDonald), 205 F.3d 606, 615 (3d Cir.2000). Two Bankruptcy Appellate Panels have held likewise. See, e.g., Domestic Bank v. Mann (In re Mann), 249 B.R. 831, 840 (1st Cir. BAP 2000); Lam v. Investors Thrift, et al. (In re Lam), 211 B.R. 36, 41 (9th Cir. BAP 1997). The Seventh Circuit has not ruled on this issue. The five courts of appeals and two bankruptcy appellate panels that have ruled that a wholly unsecured junior mortgage can be avoided did not address the lien retention issue. Those decisions were issued before the specific lien retention provisions of §§ 1325(a)(5)(B)(i)(I)(aa) and (bb) became law. The timing of an avoidance may not have been in issue in those cases. The Bankruptcy Code was amended in 2005 pursuant to the Bankruptcy Abuse Prevention and Consumer Protection Act of 2005, (BAPCPA), Pub.L. No. 109-8. That law added the specific lien retention provisions of §§ 1325(a)(5)(B)(i)(I)(aa) and (bb) to the Code. Before then the courts were divided on whether a secured creditor retained its lien until the end of a plan. See In re Will, 303 B.R. 357, 369 (Bankr.N.D.Ill.2003). Debtors would include in their plans allowed secured claims reduced pursuant to § 506(a). The debtors would pay the secured creditors the reduced amounts through the plan and then either convert the chapter 13 case to chapter 7 or have then- chapter 13 cases dismissed pursuant to a chapter 13 trustee’s motion to dismiss. The secured creditors argued that they were owed the full amounts due" }, { "docid": "16761434", "title": "", "text": "it is secured solely by a debtor’s principal residence, if the creditor’s claim is completely unsecured because the property is worth less than the senior liens. Tanner v. FirstPlus Financial, Inc. (In re Tanner), 217 F.3d 1357 (11th Cir.2000). In Tanner, the Eleventh Circuit held that, notwithstanding Nobelman, the protections of 11 U.S.C. § 1322(b)(2) afforded to holders of secured claims “secured only by a security interest in real property that is the debtor’s principal residence,” do not apply to wholly unsecured homestead mortgages. “[0]nly the rights secured by some remaining equity will be protected from modification.” 217 F.3.d at 1360. Because the Debtors here are in chapter 13, they argue that Tanner supports their efforts to value collateral and strip off the junior liens. However, Tanned is inapposite. The Eleventh Circuit focused its attention on the interplay between section 506(a) and section 1322(b)(2) in light of the Nobelman holding. It did not consider how section 1325(a) and a prior bankruptcy discharge might impact the treatment of a lien. As discussed later, there are several decisions addressing the precise issue here, some allowing a post-discharge strip off, others finding it impermissible. Before reviewing these decisions, the Court will discuss the nature of the creditors’ claims that survived the chapter 7 discharge and show why a § 506(a) valuation must be implemented in conjunction with another provision of the Bankruptcy Code to accomplish the strip down or strip off of a lien. In the cases before the Court, § 1325 is the applicable section, and as discussed in section IV infra, lien stripping may not be accomplished under § 1325 when a debtor is ineligible to receive a discharge. II. The Creditors Have An Allowed Secured Claim To analyze the Debtors’ ability to strip a lien in a chapter 13 case filed after the Debtors discharged their personal liability for the obligation secured by the lien in prior chapter 7 cases, the Court must first determine the nature of the claim that survived discharge. In Johnson v. Home State Bank, 501 U.S. 78, 111 S.Ct. 2150, 115 L.Ed.2d 66 (1991), the" }, { "docid": "3825705", "title": "", "text": "other than a claim secured only by a security interest in real property that is the debtor’s principal residence As noted in Johnson, the Supreme Court’s decision in Nobelman left open the question of whether its holding extends to junior lienholders, like SunTrust, who hold a wholly unsecured homestead lien. Johnson, 226 B.R. at 366. After a detailed analysis of Nobelman, this Court adopted the majority view, which espouses the position that the anti-modification provision in § 1322(b)(2) protects only those homestead liens that are at least partially secured — as that term is defined by § 506(a) — by some existing equity after accounting for encumbrances that have senior priority. Johnson, 226 B.R. at 369. Since the decision in Johnson, six Courts of Appeals have likewise concluded that a wholly unsecured lien is not protected under the anti-modification provision of § 1322(b)(2). Zimmer v. PSB Lending Corp. (in re Zimmer), 313 F.3d 1220 (9th Cir.2002); Lane v. W. Interstate Bancorp (In re Lane), 280 F.3d 663 (6th Cir.2002); Pond v. Farm Specialist Realty (In re Pond), 252 F.3d 122 (2d Cir.2001); Tanner v. FirstPlus Fin., Inc. (In re Tanner), 217 F.3d 1357 (11th Cir.2000); Bartee v. Tara Colony Homeowners Ass’n (In re Bartee), 212 F.3d 277 (5th Cir.2000); McDonald v. Master Fin., Inc. (In re McDonald), 205 F.3d 606 (3d Cir.2000). B. SunTrust’s Arguments on Appeal SunTrust argues that Johnson, and the majority view in general, fails to give prop er weight to Congress’ intent to confer “favorable treatment” upon residential mortgagees in an effort to “encourage the flow of capital into the home lending market.” Nobelman, 508 U.S. at 332, 113 S.Ct. 2106 (Stevens, J., concurring) (discussing the legislative history of Chapter 13 home mortgage provisions). Although Johnson did not explicitly discuss Justice Stevens’ brief concurrence, several Courts of Appeals that have opined on the legislative history have concluded that the favorable treatment afforded residential mortgagees under § 1322(b)(2) extends only to first or purchase-money mortgages. See Zimmer, 313 F.3d at 1227 (“Furthermore, although Justice Stevens recognized a congressional policy in favor of promoting home lending, we join" }, { "docid": "23183046", "title": "", "text": "But even if we accept [debtors’] valuation, the bank is still the ‘holder’ of a ‘secured claim,’ because [debtors’] home retains $23,500 of value as collateral. 508 U.S. at 328-29, 113 S.Ct. 2106 (emphasis supplied). While § 1322(b)(2) provides antimodification protection to holders of secured claims, § 506(a) tells us what a secured claim is (and is not). Therefore, we cannot accept the minority position that a secured claim should be defined as any claim for which a lien exists, regardless of the lack of any value underlying that lien. Wright v. Commercial Credit Corp., 178 B.R. 703, 707 (E.D.Va.1995), appeal dismissed, 77 F.3d 472, 1996 WL 63023 (4th Cir.1996). That approach would completely disregard the effect of both §§ 103(a) and 506(a). And that was most certainly not the approach adopted in Nobelman. Instead, a claim protected from modification under § 1322(b)(2) must be at least partially secured, as determined by § 506(a). See Wright, 178 B.R. at 707 (where there is no value underlying the claim, there is only an unsecured claim despite the existence of a document to the contrary); In re Hornes, 160 B.R. at 715 (“The code does not generally classify creditors based on the existence of a piece of paper purporting to give a creditor rights in specified collateral, but rather on whether a creditor actually holds a claim supported by valuable estate property.”); In re Plouffe, 157 B.R. 198, 200 (Bankr.D.Conn.1993) (“There is neither a logical nor rational basis for a creditor holding a completely unsecured claim to be protected from claim modification in a bankruptcy case simply because the creditor had obtained a lien on the homestead prepetition.”). Those decisions which interpret Nobel-man to preclude the voiding of all junior mortgage liens on a debtor’s principal residence are not unreasonable in their focus on Nobelman’s “rights” discussion. But they fail to appreciate the Nobelman Court’s conclusion that those “rights” flowed first from a lien which had some collateral value. Furthermore, it is not quite correct to say that the only consequence of reading § 1322(b)(2) to preclude the modification of liens without" }, { "docid": "23183045", "title": "", "text": "come to the same conclusion. In re Lam, 211 B.R. 36 (9th Cir. BAP 1997). Relying on the plain language of the statute, the Third and Fifth Circuits have rejected the reasoning that §§ 506(a) and 1322(b)(2) are in conflict. In re McDonald, 205 F.3d at 611-612; In re Bartee, 212 F.3d at 289-291. We agree. As have both circuits, we find that the two sections can and must be read in harmony. The Nobelman court did not abandon § 506(a). Rather, the Supreme Court assigned to § 506(a) an important role in determining whether a junior mortgagee holds an “allowed secured claim” in any amount. In Nobelman, the Supreme Court noted: [Debtors] were correct in looking to § 506(a) for a judicial valuation of the collateral to determine the status of the [mortgagee’s] secured claim. It was .permissible for [debtors] to seek a valuation in proposing their Chapter 13 plan, since § 506(a) states that ‘[s]uch value shall be determined ... in conjunction with any hearing ... on a plan affecting such creditor’s interest.’ But even if we accept [debtors’] valuation, the bank is still the ‘holder’ of a ‘secured claim,’ because [debtors’] home retains $23,500 of value as collateral. 508 U.S. at 328-29, 113 S.Ct. 2106 (emphasis supplied). While § 1322(b)(2) provides antimodification protection to holders of secured claims, § 506(a) tells us what a secured claim is (and is not). Therefore, we cannot accept the minority position that a secured claim should be defined as any claim for which a lien exists, regardless of the lack of any value underlying that lien. Wright v. Commercial Credit Corp., 178 B.R. 703, 707 (E.D.Va.1995), appeal dismissed, 77 F.3d 472, 1996 WL 63023 (4th Cir.1996). That approach would completely disregard the effect of both §§ 103(a) and 506(a). And that was most certainly not the approach adopted in Nobelman. Instead, a claim protected from modification under § 1322(b)(2) must be at least partially secured, as determined by § 506(a). See Wright, 178 B.R. at 707 (where there is no value underlying the claim, there is only an unsecured claim despite" } ]

[ { "docid": "22182224", "title": "", "text": "Ferraris’ ability to sit was made. Moreover, there was no consensus in the first place. The four consulting physicians expressed opinions, respectively, that Ferraris could sit for (1) normal limits for his age, with a back brace; (2) prolonged periods of time; (3) three out of eight hours; and (4) two hours in an eight hour work day. But, of more significance, the ALJ ignored the opinion of Dr. Liebman — the treating physician — that Ferraris could sit for only one or two hours at a time. We have held that the concept of sedentary work contemplates substantial sitting. Carroll, supra, 705 F.2d at 643. Moreover, alternating between sitting and standing may not be within the concept of sedentary work. Deutsch, supra, 511 F.Supp. at 249. On the basis of the ALJ’s insufficient findings here, we cannot determine whether his conclusory statement that Ferraris could carry out sedentary work is supported by substantial evidence. We of course do not suggest that every conflict in a record be reconciled by the ALJ or the Secretary, Miles v. Harris, 645 F.2d 122, 124 (2 Cir.1981), but we do believe that the crucial factors in any determination must be set forth with sufficient specificity to enable us to decide whether the determination is supported by substantial evidence. Treadwell v. Schweiker, 698 F.2d 137, 142 (2 Cir.1983) (“the propriety of agency action must be evaluated on the basis of stated reasons.”). On remand, the AU should make specific findings of exactly what Ferraris can do, especially with reference to his ability to sit and for how long. The AU then should determine, based on such specific findings, whether Ferraris has the residual functional capacity to perform sedentary work, bearing in mind what has developed as the concept of sedentary work. In making this determination, the AU should consider the claimant’s then current condition, keeping in mind Rules 200.00(a), (b) of the Grid Regulations as to “borderline” cases. (C) Findings As To Work Skills And Their Transferabili ty. For substantially similar reasons, we further direct that the ALJ make more detailed findings regarding Ferraris’" } ]

[ { "docid": "19656829", "title": "", "text": "can return to [his] previous work. Instead, the ALJ must list the specific physical requirements of the previous job and assess, in light of the available evidence, the claimant’s ability to perform these tasks.” Nolen v. Sullivan, 939 F.2d 516, 518 (7th Cir.1991) (citing Strittmatter v. Schweiker, 729 F.2d 507, 509 (7th Cir.1984)); see also Delgado v. Bowen, 782 F.2d 79, 83 (7th Cir.1986) (“Mere categorization of the work and the claimant’s capacities is not enough; particulars of the job and the claimant’s capacities must be considered.”). 2. Analysis In the present case, the ALJ concluded that plaintiffs past relevant work was unskilled in nature and consisted of “light” work as a cleaner and “heavy” work as a chipper/grinder. He further indicated that although plaintiff had been reduced to part-time work during portions of 2001 and 2002, his earnings in the cleaner position remained at the “substantial gainful” level until his alleged disability onset date. (Tr. at 17.) The ALJ then determined that, so long as he maintained his established treatment regimen, plaintiff had no significant work-related mental limitations and otherwise retained the RFC for a wide range of routine, unskilled light work. Given that RFC, the ALJ concluded that plaintiff “should be able to return to his past relevant light work as a cleaner.” (Tr. at 18.) In the alternative, the ALJ concluded that even if plaintiff could not return to past work, he was nevertheless able to perform a variety of other light jobs under Grid Rule 202.16, which directed a finding of not disabled. (Tr. at 18.) The ALJ erred at each phase of the step four evaluation. First, the ALJ failed to assess plaintiffs exertional abilities on a function-by-function basis. Instead, he simply concluded that plaintiff could perform “light work.” See SSR 96-8p (“The RFC assessment must first identify the individual’s functional limitations or restrictions and assess his or her work-related abilities on a function-by-function basis[.] Only after that may RFC be expressed in terms of the exertional levels of work, sedentary, light, medium, heavy, and very heavy.”). Further, the ALJ concluded that plaintiff had no" }, { "docid": "19656828", "title": "", "text": "F.Supp.2d at 1057. Second, the ALJ must identify the claimant’s past relevant work and determine the physical and mental demands of such work. In this context, past work can mean two things: (1) the actual functional demands of the particular job that the claimant performed, or (2) the functional demands and job duties of such an occupation as it is generally found in the national economy. Id. Third, the ALJ must determine whether the claimant has the ability to meet the job demands found in phase two despite the mental or physical limitations found in phase one. This involves comparing the claimant’s past relevant work with his present mental and physical capacity. Additionally, to justify a finding that the claimant is able to return to his past relevant work the record must establish that he could do so on a sustained basis. Id. In making this determination, the ALJ cannot simply describe a claimant’s job in a generic way, e.g. “sedentary” or “light,” and “conclude, on the basis of the claimant’s residual capacity, that [he] can return to [his] previous work. Instead, the ALJ must list the specific physical requirements of the previous job and assess, in light of the available evidence, the claimant’s ability to perform these tasks.” Nolen v. Sullivan, 939 F.2d 516, 518 (7th Cir.1991) (citing Strittmatter v. Schweiker, 729 F.2d 507, 509 (7th Cir.1984)); see also Delgado v. Bowen, 782 F.2d 79, 83 (7th Cir.1986) (“Mere categorization of the work and the claimant’s capacities is not enough; particulars of the job and the claimant’s capacities must be considered.”). 2. Analysis In the present case, the ALJ concluded that plaintiffs past relevant work was unskilled in nature and consisted of “light” work as a cleaner and “heavy” work as a chipper/grinder. He further indicated that although plaintiff had been reduced to part-time work during portions of 2001 and 2002, his earnings in the cleaner position remained at the “substantial gainful” level until his alleged disability onset date. (Tr. at 17.) The ALJ then determined that, so long as he maintained his established treatment regimen, plaintiff had no" }, { "docid": "14923328", "title": "", "text": "since he determined it was not supported by treatment records and was inconsistent with the weight of the medical evidence. (R. 32). The ALJ also acknowledged the opinion of the physical therapist, but found it unacceptable, since the treatment was brief and plaintiff stated that it was of no value. (R. 32). In assessing plaintiffs residual functional capacity, the ALJ also considered her credibility, and found that plaintiffs allegations of a disabling back condition were not fully believable. (R. 32). The ALJ then compared plaintiffs resudual functional capacity with her past relevant work. (R. 33, 34) as a travel consultant. (R. 162-63; see R. 66, 75). He found that the job of travel consultant was sedentary in nature and, that plaintiff could perform her past relevant work as a travel consultant. (Record at 33.) Accordingly, stopping at the fourth step in his assessment, the ALJ found that plaintiff was able to do her past relevant work and was not, therefore, disabled. D. Analysis 1. Past Relevant Work The ALJ determined that plaintiffs past relevant work was sedentary in nature and the plaintiff was capable of sedentary work. “Pursuant to both case law and Social Security Ruling 82-62, in order to determine at step four whether a claimant is able to perform her past work, the ALJ must make a specific and substantial inquiry into the relevant physical and men tal demands associated with the claimant’s past work, and compare these demands to the claimant’s residual capabilities.” Kerulo v. Apfel, No. 98 CIV. 7315 MBM, 1999 WL 813350, *8 (S.D.N.Y. Oct. 7, 1999) (citations omitted). Social Security Ruling 96-8p clarifies the ALJ’s duties under step four. Once the demands of the claimant’s past relevant work are ascertained, the ALJ “must.. .identify the [claimant’s] ability to perform the specific work-related abilities on a function-by-function basis.” Social Security Ruling 96-8p, 1996 WL 374184, at *1 (S.S.A.1996). Specifically, “the adjudicator must discuss the individual’s ability to perform sustained work activities in an ordinary work setting on a regular and continuing basis (ie., 8 hours a day, for 5 days a week, or an equivalent" }, { "docid": "22762369", "title": "", "text": "operator. The Appeals Council denied review, making the ALJ’s decision the Commissioner’s final decision for purposes of review. We review the Commissioner’s decision to determine whether the factual findings are supported by substantial evidence in the record and whether the correct legal standards were applied. Andrade v. Sec’y of Health & Human Servs., 985 F.2d 1045, 1047 (10th Cir.1993). Substantial evidence is “such relevant evidence as a reasonable mind might accept as adequate to support a conclusion.” Fowler v. Bowen, 876 F.2d 1451, 1453 (10th Cir.1989) (quotations omitted). The Commissioner follows a five-step sequential evaluation process to determine whether a claimant is disabled. Williams v. Bowen, 844 F.2d 748, 750-52 (10th Cir.1988). The claimant bears the burden of establishing a prima facie case of disability at steps one through four. Id. at 751 & n. 2. Ms. Doyal’s claim was denied at step four of this sequential process. Ms. Doyal raises two basic arguments on appeal. First, she argues that the ALJ’s analysis of her RFC was deficient. Second, she contends that the ALJ failed to give proper consideration to the opinion of her treating physician. I. Ms. Doyal words her first issue broadly, contending she “does not retain the [RFC] to perform substantial gainful activity.” Aplt. Br. at 7. She makes no specific argument concerning sufficiency of the evidence to support the ALJ’s finding that she can meet the demands of her past relevant work. Instead, she targets the ALJ’s alleged failure to make specific findings concerning these demands. Ms. Doyal’s argument is based on our decision in Winfrey v. Chater, 92 F.3d 1017 (10th Cir.1996). In that case, we noted the three phases of evaluation the ALJ must complete as part of step four of the sequential analysis: In the first phase, the ALJ must evaluate a claimant’s physical and mental residual functional capacity (RFC), and' in the second phase, he must determine the physical and mental demands of the claimant’s past relevant work. In the final phase, the ALJ determines whether the claimant has the ability to meet the job demands found in phase two despite the" }, { "docid": "14286238", "title": "", "text": "Cir.1998). The ALJ terminated the inquiry after step four, finding that Pfitzner retained the residual functional capacity to return to his past work as a truck driver. II. “Our standard of review is a narrow one. We will affirm the ALJ’s findings if supported by substantia] evidence on the record as a whole.” Baker, 159 F.3d at 1144. Substantial evidence exists if a reasonable mind would find such evidence adequate. Id. “However, the review we undertake is more than an examination of the record for the existence of substantial evidence in support of the Commissioner’s decision, we also take into account whatever in the record fairly detracts from that decision.” Id. In reaching his conclusion that Pfitz-ner retained the residual functional capacity to return to his past relevant work, the ALJ recounted most of the relevant medical evidence in the record. Unfortunately, the ALJ never specifically articulated Pfitzner’s residual functional capacity, rather he described it only in general terms. Near the end of his decision, for example, the ALJ stated that Pfitzner “retain[ed] the residual functional capacity to perform a wide range of medium work.” (Rec. at 29.) In his findings, the ALJ stated that Pfitzner retained the “capacity to perform work related activities except for work involving limitations described in the body of this decision.” (Id. at 30.) Pfitz-ner takes issue with the ALJ’s treatment of his residual functional capacity. Specifically, Pfitzner contends that the ALJ’s fact-findings on this issue are incomplete or nonexistent. We agree. “An ALJ’s decision that a claimant can return to his past work must be based on more than conclusory statements. The ALJ must specifically set forth the claimant’s limitations, both physical and mental, and determine how those limitations affect the claimant’s residual functional capacity.” Groeper v. Sullivan, 932 F.2d 1234, 1238-39 (8th Cir.1991). The Administration’s own interpretation of the regulations reflects this need for specificity. The determination that a “claimant retains the functional capacity to perform past work ... has far-reaching implications and must be developed and explained fully in the disability decision.” S.S.R. No. 82-62, 1982 WL 31386, *3 (Ruling 82-62). See" }, { "docid": "19656830", "title": "", "text": "significant work-related mental limitations and otherwise retained the RFC for a wide range of routine, unskilled light work. Given that RFC, the ALJ concluded that plaintiff “should be able to return to his past relevant light work as a cleaner.” (Tr. at 18.) In the alternative, the ALJ concluded that even if plaintiff could not return to past work, he was nevertheless able to perform a variety of other light jobs under Grid Rule 202.16, which directed a finding of not disabled. (Tr. at 18.) The ALJ erred at each phase of the step four evaluation. First, the ALJ failed to assess plaintiffs exertional abilities on a function-by-function basis. Instead, he simply concluded that plaintiff could perform “light work.” See SSR 96-8p (“The RFC assessment must first identify the individual’s functional limitations or restrictions and assess his or her work-related abilities on a function-by-function basis[.] Only after that may RFC be expressed in terms of the exertional levels of work, sedentary, light, medium, heavy, and very heavy.”). Further, the ALJ concluded that plaintiff had no mental or other non-exertional limitations, without addressing the report of consulting psychologist Dr. Bauer, who opined that plaintiff had a severe mental impairment and was moderately limited in various work-related abilities. (Tr. at 267-68; 271.) According to SSR 96-6p, ALJs “may not ignore these opinions and must explain the weight given to these opinions in their decisions.” Second, the ALJ failed to explain his finding that plaintiffs “cleaner” position qualified as “past relevant work.” Past work constitutes relevant work experience for purposes of step four analysis when it (1) was done within the last fifteen years, (2) lasted long enough for the claimant to learn to do the job, and (3) was substantial gainful activity. 20 C.F.R. § 404.1565(a); see also SSR 82-62 (explaining that past relevant work must be (1) “substantial” and “gainful,” (2) performed for a duration sufficient for the worker to have learned the techniques, acquired information, and developed the facility needed for average performance in the job situation, and (3) performed recently, generally within the past fifteen years). However, SSR 83-33" }, { "docid": "19717133", "title": "", "text": "evidence on both sides to ensure that the claim “has been fairly evaluated.” See, e.g., Brown v. Apfel, 174 F.3d 59, 62 (2d Cir.1999) (quoting Grey v. Heckler, 721 F.2d 41, 46 (2d Cir.1983)) (quotation marks omitted). It is the function of the SSA, not the courts, “to resolve evidentiary conflicts and to appraise the credibility of witnesses, including the claimant.” Carroll v. Sec’y of Health & Human Servs., 705 F.2d 638, 642 (2d Cir.1983) (citing Richardson, 402 U.S. at 399, 91 S.Ct. 1420); see also Clark v. Comm’r of Soc. Sec., 143 F.3d 115, 118 (2d Cir.1998). Although the ALJ need not resolve every conflict in the record, “the crucial factors in any determination must be set forth with sufficient specificity to enable [the reviewing court] to decide whether the determination is supported by substantial evidence.” Calzada v. Asture, 753 F.Supp.2d 250, 269 (S.D.N.Y.2010) (Sullivan, J.) (quoting Ferraris v. Heckler, 728 F.2d 582, 587 (2d Cir.1984)) (quotation marks omitted). To fulfill this obligation, the ALJ must not only “adequately explain his reasoning in making the findings on which his ultimate decision rests,” but also must “address all pertinent evidence.” Id. “[A]n ALJ’s failure to acknowledge relevant evidence or to explain its implicit rejection is plain error.” Id. (internal quotation marks omitted); Rodriguez v. Astrue, No. 11 CIV. 7720, 2012 WL 4477244, at *30 (S.D.N.Y. Sept. 28, 2012) (McMahon, J.) (quoting Kuleszo v. Barnhart, 232 F.Supp.2d 44, 57 (W.D.N.Y.2002) (Siragusa, J.)) (same). DETERMINATION OF DISABILITY I. Applicable Law The Social Security Act defines the term “disability” to mean an “inability to engage in any substantial gainful activity by reason of any medically determinable physical or mental impairment ... which has lasted or can be expected to last for a continuous period of not less than 12 months.” Burgess, 537 F.3d at 119-20 (quoting 42 U.S.C. § 423(d)(1)(A)) (quotation marks omitted). In addition, “[t]he impairment must be of ‘such severity that [the claimant] is not only unable to do his previous work but cannot, considering his age, education, and work experience, engage in any other kind of substantial gainful work which" }, { "docid": "22257520", "title": "", "text": "whether jobs requiring a specific combination of these factors exist in significant numbers in the national economy.” Heckler v. Campbell, 461 U.S. 458, 461-62, 103 S.Ct. 1952, 76 L.Ed.2d 66 (1983). When the grids match the claimant’s qualifications, “the guidelines direct a conclusion as to whether work exists that the claimant could perform.” Id. at 462, 103 S.Ct. 1952. When the grids do not match the claimant’s qualifications, the ALJ can either (1) use the grids as a framework and make a determination of what work exists that the claimant can perform, see Soc. Sec. Ruling 83-14, 1983 WL 31254 (S.S.A.), or (2) rely on a vocational expert when the claimant has significant non-ex-ertional limitations. Desrosiers v. Sec’y of Health and Human Servs., 846 F.2d 573, 577 (9th Cir.1988). The ALJ held that Hoopai had established a prima facie case of disability. In particular, Hoopai was deemed to have proven at steps one and two that he was not presently engaged in a substantial gainful activity and that medical evidence demonstrated that the combination of his low back pain and depression was severe within the meaning of the regulations. However, the ALJ held that the combined impairments did not meet or equal one of the specific impairments listed in the regulations as required under step three. At step four, the ALJ found that the claimant had demonstrated that he could not perform his past relevant work, which involved heavy lifting. Instead, Hoopai only had the residual functional capacity to perform light work. At step five, the ALJ relied on the grids as a framework and concluded that there was a significant number of jobs in the national economy that the claimant could perform. Specifically, the ALJ determined that the claimant could perform such jobs as scale operator, street cleaner, silver wrapper and basket filler. A. Vocational Expert The parties do not dispute the ALJ’s determination at steps one through four. Instead, the dispute centers around the ALJ’s step-five determination. Hoopai argues that the ALJ erred at step five by assuming the role of the vocational expert and determining what alternative" }, { "docid": "19656833", "title": "", "text": "consider the distinct possibility that the employer subsidized plaintiffs wages during this time, paying him at the chipper/grinder rate although his actual duties appeared to be minimal. The Commissioner also fails to address this issue in his brief. Even if plaintiffs “cleaner” job qualified as past relevant work, the ALJ failed to determine the specific demands and duties of that position. The ALJ stated that this work was “light” (Tr. at 17), but he cited no evidence in support of that determination and included no further discussion of the requirements or duties of plaintiffs particular job. See Quigley v. Barnhart, 224 F.Supp.2d 357, 369-70 (D.Mass.2002) (reversing where the ALJ failed to develop the record and determine with specificity the duties of the claimant’s former jobs). An ALJ cannot reasonably conclude that a claimant can return to his past work without engaging in any analysis of what that job entails. Nor did the ALJ evaluate the “cleaner” job as it is generally found in the national economy; indeed, the record contains no evidence from a reliable source such as a VE or the Dictionary of Occupational Titles (“DOT”) as to what the requirements of a generic “cleaner” job might be. See SSR 82-62 (stating that the ALJ may obtain supplementary or corroborative information from sources such as the DOT “on the requirements of the work as generally performed in the economy”); compare Brinegar v. Barnhart, 358 F.Supp.2d 847, 858 (E.D.Mo.2005) (upholding the ALJ’s reliance on the DOT description of the claimant’s past work), and Urban v. Sullivan, 799 F.Supp. 908, 922 (C.D.Ill.1992) (upholding step four determination of past work based on VE testimony and the DOT), with McKinney v. Bowen, No. 87 C 5734, 1988 WL 73429, at *2, 1988 U.S. Dist. LEXIS 6813, at *5-6 (N.D.Ill. July 5, 1988) (reversing where “nothing in the ALJ’s opinion shows that he compared McKinney’s RFC to her past occupations as he found them to be performed in the national economy”). Third, the ALJ failed to “list the specific physical requirements of the previous job and assess, in light of the available evidence, [plaintiffs]" }, { "docid": "22163949", "title": "", "text": "1996) (“In disability determinations and decisions made at steps 4 and 5 of the sequential evaluation process ... the individual’s ability to do past relevant work and other work must be considered .... ”). A number of the policy statements and regulations expressly address a claimant’s residual functional capacity, or “RFC,” to do past relevant work, or “PRW,” terms they define partially in terms of substantial gainful activity, or “SGA.” Thus, SSR 96-8p states that RFC is what an individual can still do despite his or her limitations.... Ordinarily, RFC is the individual’s maximum remaining ability to do sustained work activities in an ordinary work setting on a regular and continuing basis, and the RFC assessment must include a discussion of the individual’s abilities on that basis. A “regular and continuing basis” means 8 hours a day, for 5 days a week, or an equivalent work schedule. SSR 96-8p, 1996 WL 374184, at *2. This policy statement adds that even if the claimant cannot work the equivalent of 8 hours a day, for 5 days a week, “[p]art-time work that was substantial gainful activity, performed within the past 15 years, and lasted long enough for the person to learn to do it constitutes past relevant work, and an individual who retains the RFC to perform such work must be found not disabled.” Id. at *8 n. 2 (emphasis added). In Social Security Ruling 82-62, Titles II and XVI: A Disability Claimant’s Capacity to Do Past Relevant Work, In General (“SSR 82-62”), 1982 WL 31386 (S.S.A. 1982), the SSA sought “[t]o state the policy and explain the procedures for determining a disability claimant’s capacity to do past relevant work (PRW) as set forth in the regulations,” id., 1982 WL 31386, at *1, and to explain when past work is “relevant.” It stated that “[i]n the fourth step of th[e sequential evaluation] process, consideration is given to the individual’s capacity to perform PRW,” and that in order for the SSA to find the claimant disabled, it must find that her “ ‘impairment ... prevents her] from doing past relevant work.’ ” Id." }, { "docid": "19656831", "title": "", "text": "mental or other non-exertional limitations, without addressing the report of consulting psychologist Dr. Bauer, who opined that plaintiff had a severe mental impairment and was moderately limited in various work-related abilities. (Tr. at 267-68; 271.) According to SSR 96-6p, ALJs “may not ignore these opinions and must explain the weight given to these opinions in their decisions.” Second, the ALJ failed to explain his finding that plaintiffs “cleaner” position qualified as “past relevant work.” Past work constitutes relevant work experience for purposes of step four analysis when it (1) was done within the last fifteen years, (2) lasted long enough for the claimant to learn to do the job, and (3) was substantial gainful activity. 20 C.F.R. § 404.1565(a); see also SSR 82-62 (explaining that past relevant work must be (1) “substantial” and “gainful,” (2) performed for a duration sufficient for the worker to have learned the techniques, acquired information, and developed the facility needed for average performance in the job situation, and (3) performed recently, generally within the past fifteen years). However, SSR 83-33 explains that even if these conditions are met the ALJ must consider the possibility that the employer, “because of a benevolent attitude toward a handicapped individual, subsidized] the employee’s earnings by paying more in wages than the reasonable value of the actual services performed.” In the present case, the record contains substantial evidence that plaintiffs employer may have subsidized him in the light duty cleaner position. Plaintiff worked in the foundry from 1979 to 2000, when he hurt his back. His employer allowed him to return to work, at the same pay rate ($11.75/hour), sweeping and tending to the bathrooms. The employer also accommodated plaintiffs part-time restrictions from March 2002 until his termination in July 2002. The ALJ found that plaintiffs wages in 2001 and 2002 remained at the SGA level, and substantial evidence appears to support that determination. In his brief, the Commissioner also notes that plaintiff performed this job for more than few months, a sufficient period of time to satisfy the durational requirements of past relevant work. But the ALJ failed to" }, { "docid": "10480188", "title": "", "text": "a December 2, 1985, opinion the AU found that although Rivera’s injury “might have been ‘disabling’ for a brief period of time after her accident, the medical evidence shows a clear improvement.” (Tr. 14). He denied her application for disability benefits, finding her capable of performing “light work.” (Tr. 14). See 20 C.F.R. § 416.967(b). The Appeals Council denied plaintiff’s request for review on March 21, 1986, making the AIJ’s decision the final decision of the Secretary in this matter. (Tr. 2-5). DISCUSSION To determine whether a claimant is disabled, the Secretary must consider objective medical facts, diagnoses and medical opinions based on those facts, subjective evidence of pain and disability testified to by the claimant and other witnesses, as well as the claimant's educational background, age, and work experience. Bluvband v. Heckler, 730 F.2d 886, 890 (2d Cir.1984); Mimms v. Heckler, 750 F.2d 180, 185 (2d Cir.1984). The Secretary operates as fact-finder, and it is his responsibility to resolve all evidentiary conflicts. Id. With respect to medical evidence, however, two important rules govern the Secretary’s fact-finding function. The Secretary must render a decision on the basis “of all the relevant evidence.” Ceballos v. Bowen, 649 F.Supp. 693, 700 (S.D.N.Y.1986) (Ward, J.) (emphasis in original); see also 42 U.S.C. §§ 423(d)(5)(B), 1382c(a)(5). Thus, although the AU is not required “explicitly to reconcile every conflicting shred of medical testimony,” Miles v. Harris, 645 F.2d 122, 124 (2d Cir.1981), he cannot pick and choose evidence that supports a particular conclusion. Ceballos, supra, 649 F.Supp. at 700; Fiorello v. Heckler, 725 F.2d 174, 175-76 (2d Cir.1983). His “failure to acknowledge relevant evidence or to explain its implicit rejection is plain error.” Ceballos, supra, 649 F.Supp. at 702 (citing Valente v. Secretary of Health & Human Services, 733 F.2d 1037, 1045 (2d Cir.1984)); see also Andino v. Bowen, No. 84 Civ. 8226, slip op. at 7 (S.D.N.Y. March 12, 1987) (Carter, J.). In evaluating the evidence, it is especially important that the Secretary give extra weight to the opinion of the claimant’s treating physicians. Because the treating physician is usually more familiar with a" }, { "docid": "21410834", "title": "", "text": "and Ms. Maes’s own description of her condition were offered in support of her application. The ALJ denied the application. He made his decision at step four of the sequential evaluation process used to analyze disability claims. See Sorenson v. Bowen, 888 F.2d 706, 710 (10th Cir.1989) (outlining the five-step procedure). At that step, the relevant inquiry is whether the disability claimant is capable of returning to her past relevant work. See Henrie v. U.S. Dep’t of Health & Human Servs., 13 F.3d 359, 360 (10th Cir.1993). The ALJ found that Ms. Maes has a seizure disorder and an affective disorder that qualify as severe impairments, but he found that these impairments do not prevent her from performing her past relevant work as a cashier and general clerk. He therefore denied her application for disability benefits, which became the Sec retary’s final administrative decision when the Appeals Council denied her request for review. The District Court affirmed the Secretary’s denial of benefits, and this appeal followed. II. DISCUSSION The standard of review in a social security appeal is whether the correct legal standards were applied and whether the decision is supported by substantial evidence. Hamilton v. Sec’y of Health & Human Servs., 961 F.2d 1495, 1497-98 (10th Cir.1992). Ms. Maes argues that the District Court erred in affirming the ALJ’s determination because the ALJ did not apply the correct legal standards in that he failed to fulfill his statutory and regulatory duty to develop the record. She also contends that this failure undermines the ALJ’s determination that she was not disabled. In making a determination regarding disability, the ALJ “shall develop a complete medical history,” which includes a “reasonable effort[ ]” to obtain records from the claimant’s treating physician. 42 U.S.C. § 423(d)(5)(B). Regulations clarify this statutory duty. Specifically, 20 C.F.R. § 404.1512(d) states that “[b]efore we make a ■ determination that you are not disabled, we will develop your complete medical history.” That regulation also makes clear, however, that the social security claimant has an obligation to assist the ALJ in its duty: (a) General. In general, you have" }, { "docid": "22163950", "title": "", "text": "a week, “[p]art-time work that was substantial gainful activity, performed within the past 15 years, and lasted long enough for the person to learn to do it constitutes past relevant work, and an individual who retains the RFC to perform such work must be found not disabled.” Id. at *8 n. 2 (emphasis added). In Social Security Ruling 82-62, Titles II and XVI: A Disability Claimant’s Capacity to Do Past Relevant Work, In General (“SSR 82-62”), 1982 WL 31386 (S.S.A. 1982), the SSA sought “[t]o state the policy and explain the procedures for determining a disability claimant’s capacity to do past relevant work (PRW) as set forth in the regulations,” id., 1982 WL 31386, at *1, and to explain when past work is “relevant.” It stated that “[i]n the fourth step of th[e sequential evaluation] process, consideration is given to the individual’s capacity to perform PRW,” and that in order for the SSA to find the claimant disabled, it must find that her “ ‘impairment ... prevents her] from doing past relevant work.’ ” Id. (quoting 20 C.F.R. §§ 404.1520(e), 416.920(e)). This SSR adds: “We consider that your work experience applies [i.e., is relevant ] when it was done within the last 15 years, lasted long enough for you to learn to do it, and was substantial gainful activity [SGA].” SSR 82-62, 1982 WL 31386, at *1 (quoting 20 C.F.R. §§ 404.1565(a), 416.965(a) (brackets in SSR 82-62) (emphasis ours)). Social Security Ruling 86-8, Titles II and XVI: The Sequential Evaluation Process (“SSR 86-8”), 1986 WL 68636 (S.S.A.1986), superseded in irrelevant part by SSR 91-7c, Supplemental Security Income — Disability Standards for Children, 1991 WL 231791 (S.S.A. Aug. 1, 1991), similarly states that “[w]ork experience is relevant when it was performed within the pertinent 15-year period, lasted long enough for the individual to learn the job, and consisted of SGA” SSR 86-8, 1986 WL 68636, at *7 (emphasis added). As to the meaning of substantial gainful activity, or SGA, SSR 82-62 states that [t]he adjudicative criteria for determining whether a person has done “substantial” and “gainful” work activity are explained in" }, { "docid": "19717132", "title": "", "text": "(2d Cir.2004); see also Moran v. Astrue, 569 F.3d 108, 112 (2d Cir.2009); 42 U.S.C. § 405(g) (“The findings of the Commissioner of Social Security as to any fact, if supported by substantial evidence, shall be conclusive----”). Substantial evidence is “more than a mere scintilla”; it is “such relevant evidence as a reasonable mind might accept as adequate to support a conclusion.” Richardson v. Perales, 402 U.S. 389, 401, 91 S.Ct. 1420, 28 L.Ed.2d 842 (1971) (quoting Consol. Edison Co. of N.Y., Inc. v. NLRB, 305 U.S. 197, 229, 59 S.Ct. 206, 83 L.Ed. 126 (1938)); Moran, 569 F.3d at 112 (quoting Burgess v. Astrue, 537 F.3d 117, 127 (2d Cir.2008)). The substantial-evidence test applies not only to the Commissioner’s factual findings, but also to inferences and conclusions of law to be drawn from those facts. See, e.g., Carballo ex rel. Cortes v. Apfel, 34 F.Supp.2d 208, 214 (S.D.N.Y.1999) (Sweet, J.). In determining whether the record contains substantial evidence to support a denial of benefits, the reviewing court must examine the entire record, weighing the evidence on both sides to ensure that the claim “has been fairly evaluated.” See, e.g., Brown v. Apfel, 174 F.3d 59, 62 (2d Cir.1999) (quoting Grey v. Heckler, 721 F.2d 41, 46 (2d Cir.1983)) (quotation marks omitted). It is the function of the SSA, not the courts, “to resolve evidentiary conflicts and to appraise the credibility of witnesses, including the claimant.” Carroll v. Sec’y of Health & Human Servs., 705 F.2d 638, 642 (2d Cir.1983) (citing Richardson, 402 U.S. at 399, 91 S.Ct. 1420); see also Clark v. Comm’r of Soc. Sec., 143 F.3d 115, 118 (2d Cir.1998). Although the ALJ need not resolve every conflict in the record, “the crucial factors in any determination must be set forth with sufficient specificity to enable [the reviewing court] to decide whether the determination is supported by substantial evidence.” Calzada v. Asture, 753 F.Supp.2d 250, 269 (S.D.N.Y.2010) (Sullivan, J.) (quoting Ferraris v. Heckler, 728 F.2d 582, 587 (2d Cir.1984)) (quotation marks omitted). To fulfill this obligation, the ALJ must not only “adequately explain his reasoning in making" }, { "docid": "17099292", "title": "", "text": "to secure a finding of disability without consideration of age, education, and work experience, a claimant must establish that his impairment meets or equals an impairment in the appendix to the regulations. Fourth, a claimant must establish that his impairment prevents him from doing past relevant work. Finally, the burden shifts to the Secretary to establish that the claimant can perform the relevant work. If the Secretary meets this burden, the claimant must then prove that he cannot in fact perform the work suggested. See Waters, 276 F.3d at 718 (quoting Muse v. Sullivan, 925 F.2d 785, 789 (5th Cir.1991)); see generally § 404.1520. Notably in this case, the claimant bears the burden of proof with respect to the first four steps of “the analysis.... ” Waters, 276 F.3d at 718; see also Newton, 209 F.3d at 453. If at any step the Commissioner finds that the claimant is or is not disabled, the ALJ need not continue the analysis. Leggett v. Chater, 67 F.3d 558, 564 (5th Cir.1995). Here, the ALJ found at step four that Copeland was not disabled because she was able to perform her past relevant work as a home health aide. Past relevant work refers to work that was performed “within the -last 15 years, lasted long enough for the person to learn to do it and was substantial gainful activity.” Titles II & XVI: Past Relevant Work — the Particular Job or the Occupation As Generally Performed, SSR 82-61, 1982 WL 31387 (1982); 20 C.F.R. §§ 404.1565(a), 416.965(a). Part-time work may be considered past relevant work. See Alfred v. Barnhart, 181 Fed.Appx. 447, 451 (5th Cir.2006) (per curiam) (unpublished) (citing Titles II & XVI: Assessing Residual Functional Capacity in Initial Claims, SSR 96-8P, 1996 WL 374184 (July 2, 1996)). A claimant may retain the capacity to perform her past relevant work either “as he or she actually performed it” or “as ordinarily required by employers throughout the national economy.” Past Relevant Work, 1982 WL 31387, at *1-2. To determine whether work qualifies as past relevant work, it is necessary to understand what is meant" }, { "docid": "6852820", "title": "", "text": "develop the record in this respect, as was his obligation even though the claimant was represented by counsel. See, e.g., Decker v. Harris, 647 F.2d 291, 299 (2d Cir.1981). See also Ceballos v. Bowen, 649 F.Supp. at 698; Losco v. Heckler, 604 F.Supp. 1014, 1020 (S.D.N.Y.1985) (“the AU is under the general duty affirmatively to develop the record and to ensure that all the necessary and relevant information is simply produced”). The AU never asked either the plaintiff or the vocational expert whether performing work as a factory floor girl required any use of the fingers, and, if so, to what extent. The failure to flesh out the record on this key question is in itself a sufficient ground for rejecting the Secretary’s conclusion that plaintiff could perform her prior work. See, e.g., Echevarria v. Secretary of Health and Human Services, 685 F.2d 751, 755 (2d Cir.1982); Ceballos v. Bowen, 649 F.Supp. at 698. In addition, even if this record is deemed adequate for a determination of whether plaintiff’s past job required some amount of fine manipulation with her left hand, the Secretary’s decision cannot stand because he failed to make any meaningful findings as to the specific requirements of plaintiff’s prior job. It is self-evident that a determination by the Secretary must contain a sufficient explanation of his reasoning to permit the reviewing court to judge the adequacy of his conclusions. See, e.g., Williams v. Bowen, 859 F.2d 255, 260-61 (2d Cir.1988); Ferraris v. Heckler, 728 F.2d 582, 587 (2d Cir.1984); Berry v. Schweiker, 675 F.2d at 469. Moreover, an ALJ’s “failure to acknowledge relevant evidence or explain its implicit rejection is plain error.” Ceballos v. Bowen, 649 F.Supp. at 702 (citing Valente v. Secretary of Health & Human Services, 733 F.2d 1037, 1045 (2d Cir.1984)). Although the AU is not required to “reconcile explicitly every conflicting shred of medical testimony,” Fiorello v. Heckler, 725 F.2d 174, 176 (2d Cir.1983); Miles v. Harris, 645 F.2d 122, 124 (2d Cir.1981), he cannot “pick and choose” evidence in the record that supports his conclusions. Fiorello v. Heckler, 725 F.2d at 175-76;" }, { "docid": "14286239", "title": "", "text": "functional capacity to perform a wide range of medium work.” (Rec. at 29.) In his findings, the ALJ stated that Pfitzner retained the “capacity to perform work related activities except for work involving limitations described in the body of this decision.” (Id. at 30.) Pfitz-ner takes issue with the ALJ’s treatment of his residual functional capacity. Specifically, Pfitzner contends that the ALJ’s fact-findings on this issue are incomplete or nonexistent. We agree. “An ALJ’s decision that a claimant can return to his past work must be based on more than conclusory statements. The ALJ must specifically set forth the claimant’s limitations, both physical and mental, and determine how those limitations affect the claimant’s residual functional capacity.” Groeper v. Sullivan, 932 F.2d 1234, 1238-39 (8th Cir.1991). The Administration’s own interpretation of the regulations reflects this need for specificity. The determination that a “claimant retains the functional capacity to perform past work ... has far-reaching implications and must be developed and explained fully in the disability decision.” S.S.R. No. 82-62, 1982 WL 31386, *3 (Ruling 82-62). See also Sells v. Shalala, 48 F.3d 1044, 1046 (8th Cir.1995) (discussing Ruling 82-62). “This court has held, consistent with Ruling 82-62, that ‘[a] conclusory determination that the claimant can perform past work, without these findings, does not constitute substantial evidence that the claimant is able to return to his [or her] past work.’” Id. (quoting Groeper, 932 F.2d at 1239). Over the course of several pages, the ALJ dutifully discussed the relevant evidence, yet he articulated only the outermost contours of Pfitzner’s residual functional capacity. While it is clear that the ALJ found Pfitzner’s mental problems moderate and limited to situational depression (see Rec. at 30), the specifics of Pfitzner’s physical limitations are not so easily gleaned from the ALJ’s decision. Perhaps the ALJ found that Pfitzner had no significant physical limitations. One might infer such a finding from the ALJ’s conclusion that “[t]he medical evidence reveals no specific physician imposed physical limitations.” (Id. at 29.) Even on our deferential review of the ALJ’s decision, we cannot say that substantial evidence supports such a conclusion." }, { "docid": "6852821", "title": "", "text": "fine manipulation with her left hand, the Secretary’s decision cannot stand because he failed to make any meaningful findings as to the specific requirements of plaintiff’s prior job. It is self-evident that a determination by the Secretary must contain a sufficient explanation of his reasoning to permit the reviewing court to judge the adequacy of his conclusions. See, e.g., Williams v. Bowen, 859 F.2d 255, 260-61 (2d Cir.1988); Ferraris v. Heckler, 728 F.2d 582, 587 (2d Cir.1984); Berry v. Schweiker, 675 F.2d at 469. Moreover, an ALJ’s “failure to acknowledge relevant evidence or explain its implicit rejection is plain error.” Ceballos v. Bowen, 649 F.Supp. at 702 (citing Valente v. Secretary of Health & Human Services, 733 F.2d 1037, 1045 (2d Cir.1984)). Although the AU is not required to “reconcile explicitly every conflicting shred of medical testimony,” Fiorello v. Heckler, 725 F.2d 174, 176 (2d Cir.1983); Miles v. Harris, 645 F.2d 122, 124 (2d Cir.1981), he cannot “pick and choose” evidence in the record that supports his conclusions. Fiorello v. Heckler, 725 F.2d at 175-76; Andino v. Bowen, 665 F.Supp. 186, 190 (S.D.N.Y.1987). In this case, as noted, the limited evidence in the record strongly suggests that plaintiff’s prior job required the use of the fingers on her left hand. The ALJ and Appeals Council, however, fail to acknowledge or address this evidence and fail to offer any explanation for their conclusory finding that the prior job did not require “fine manipulation”. This is plain error. In reaching this conclusion, I take note of the Secretary’s argument—first advanced at oral argument and then by letter to the court—that even if the record did not contain evidence concerning the extent of the manipulative functions required by plaintiff’s prior job, the Secretary’s finding that the job did not require fine manipulation must be upheld, since the absence of evidence reflects a failure by plaintiff to carry her burden of proof. This argument cannot be sustained. As noted, it is the obligation of the Secretary to ensure a complete evidentiary record even when the claimant is represented by counsel, a requirement that follows" }, { "docid": "10468798", "title": "", "text": "Magistrate’s recommendation on two grounds. First, the Secretary argues that the language quoted by the Magistrate from Schisler was specifically rejected in that case as a part of the Second Circuit’s “treating physician rule” and that the AU, therefore, was justified in according little weight to “Dr. Washington’s unsubstantiated conclu-sory opinion.” Secondly, the Secretary claims that plaintiff was represented by counsel at the administrative hearing and that the ALJ therefore had no such responsibility to assist plaintiff as the Magistrate asserts. DISCUSSION Plaintiff bears the burden of proving her own disability. Bluvband v. Heckler, 730 F.2d 886, 891 (2d Cir.1984). In the absence of legal error, the Secretary’s finding that plaintiff is not disabled is conclusive if supported by substantial evidence. 42 U.S.C. § 405(g); Bluvband, supra, 730 F.2d at 891. The Secretary, however, must render a decision on the basis “of all the relevant evidence.” Ceballos v. Bowen, 649 F.Supp. 693, 700 (S.D.N.Y.1986) (emphasis in original); see also 42 U.S.C. §§ 423(d)(5)(B), 1382c(a)(5). Although the ALJ is not required to reconcile every ambiguity and inconsistency of medical testimony, Ferraris v. Heckler, 728 F.2d 582, 587 (2d Cir.1984), he cannot pick and choose evidence that supports a particular conclusion. Fiorello v. Heckler, 725 F.2d 174, 175-76 (2d Cir.1983); Ceballos, supra, 649 F. Supp at 700. His “failure to acknowledge relevant evidence or to explain its implicit rejection is plain error.” Ceballos, supra, 649 F.Supp. at 702 (citing Valente v. Secretary of Health and Human Services, 733 F.2d 1037, 1045 (2d Cir.1984)). Furthermore, the AU must affirmatively assist the plaintiff in developing the record, especially where the claimant is not represented by a lawyer. Bluvband, supra, 730 F.2d at 892; see Hankerson v. Harris, 636 F.2d 893, 896 (2d Cir.1980). The treating physician rule in the Second Circuit provides that “a treating physician’s opinion on the subject of medical disability, i.e., diagnosis and nature and degree of impairment, is: (i) binding on the fact-finder unless contradicted by substantial evidence; and (ii) entitled to some extra weight because the treating physician is usually more familiar with a claimant’s medical condition than are" } ]

[ { "docid": "22671491", "title": "", "text": "whether the plaintiff could save his action by merely amending his complaint. When such action would permit the plaintiff to continue the litigation in the district court, we believe the plaintiff should not be allowed to appeal the dismissal without prejudice. Such a rule better serves judicial economy than one providing an appeal of right. Thus we hold that a plaintiff may not appeal the dismissal of his complaint without prejudice unless the grounds for dismissal clearly indicate that “no amendment [in the complaint] could cure the defects in the plaintiffs case.” Id. Applying this rule to the present case reveals that the district court’s order nonetheless qualifies as a final order subject to appeal. Specifically, the district court’s order dismissed the Company’s complaint “on account of [the Company’s] failure to exhaust contractual remedies.” (J.A. 13). The clear import of this order required the Company to pursue remedies within the CBA before filing suit in court. In other words, the district court essentially made a final ruling that the Company had to proceed to arbitration before seeking judicial relief. Thus, “the grounds of the dismissal ma[de] clear that no amendment could cure the defects in [the Company’s] ease.” Coniston Corp., 844 F.2d at 463. Accordingly, the mere fact that the district court dismissed the Company’s complaint without prejudice does not render the order interlocutory and not subject to appeal. B Alternatively, the Union argues that orders requiring parties to submit their disputes over collective bargaining agreements to arbitration are interlocutory and, therefore, not subject to appeal. In support, the Union relies on Stedor Enterprises, LTD. v. Armtex, Inc., 947 F.2d 727, 728 (4th Cir.1991), where we recognized that the Federal Arbitration Act (FAA), 9 U.S.C. § 1 et seq., reflects “a strong congressional policy against appeals which delay the onset of arbitration.” By analogy, the Union asserts that this policy should also apply in the context of collective bargaining agreements. Under the FAA, 9 U.S.C. § 16(b)(2), “an appeal may not be taken from an interlocutory order directing arbitration to proceed under section 4 of this title.” In Stedor Enterprises," } ]

[ { "docid": "16207801", "title": "", "text": "before filing his original complaint. The district court granted the motion, stating: It is well established that “a suit filed by a prisoner before administrative remedies have been exhausted must be dismissed.” Perez v. Wis. Dep’t of Corr., 182 F.3d 532, 535 (7th Cir.1999). Moreover, “the district court lacks discretion to resolve the claim on the merits, even if the prisoner exhausts intraprison remedies before judgment.” Id. Since Plaintiff did not submit any grievances prior to filing his original complaint on October 10, 2000, I find that his case must be dismissed. Plaintiffs filing of grievances during the pendency of this lawsuit could not (and did not) satisfy that PLRA’s exhaustion requirements. This may generate an overly technical result, but it is what the law requires. R.69 at 3-4. Mr. Barnes appeals that decision. II DISCUSSION A. Jurisdiction As an initial matter, the defendants question whether the district court’s dismissal of Mr. Barnes’ amended complaint constitutes a final and appealable judgment. See 28 U.S.C. § 1291. “Dismissal for failure to exhaust is without prejudice and so does not bar the reinstatement of the suit unless it is too late to exhaust.” Walker v. Thompson, 288 F.3d 1005, 1009 (7th Cir.2002); see also Ford v. Johnson, 362 F.3d 395, 401 (7th Cir.2004) (holding that “all dismissals under § 1997e(a) should be without prejudice” (emphasis in original)). The district court’s order did not indicate whether the dismissal was with or without prejudice, but we shall assume for present purposes that it was without prejudice. A dismissal without prejudice normally “does not qualify as an appealable final judgment because the plaintiff is free to re-file the case.” Larkin v. Galloway, 266 F.3d 718, 721 (7th Cir.2001). Certain circumstances allow us, however, to consider such a dismissal as final. For instance, if the plaintiff “cannot cure the defects” in his complaint, the dismissal in effect was with prejudice and is final for purposes of appellate review. Strong v. David, 297 F.3d 646, 648 (7th Cir.2002); see also Larkin, 266 F.3d at 721 (stating that, if the “plaintiff will not be able to amend her" }, { "docid": "16340009", "title": "", "text": "federal court that he had not raised in his charge filed with the EEOC, and there was no suggestion that the plaintiff still had time to cure the omission. Id. at 194-95. Maldonado-Cordero involves the dismissal with prejudice of Title VII claims for various defects in the plaintiffs' efforts to exhaust administrative remedies, most of which could not have been timely cured. Id. al 186-90. With respect to the remaining claims, the plaintiffs in Maldonado-Cordero were still in the process of exhausting EEOC procedures. Significantly, as to those claims the court ordered dismissal without prejudice to any litigation after exhaustion. Id. at 187-88. . By the same July 30 opinion and order, the district court also dismissed plaintiffs’ Title VII claims against the federal defendants “for the same reasons it granted the other co-defendants' motion” — failure to exhaust administrative remedies. Again, the court expressly termed its dismissal \"with prejudice.” . Plaintiffs' August 12, 2002 notice of appeal indicates that they initially intended to challenge the district court's dismissal of all of their claims against all defendants, with the exception of their claims under the Taft-Hart-ley Act against Local 72. On January 29, 2003, however, plaintiffs moved to consolidate the issues and present the prejudice question alone. In any event, their brief addresses only the prejudice question, and that is the only issue we address. . In pertinent part, Rule 41(b) provides: Unless the court in its order for dismissal otherwise specifies, a dismissal under this subdivision and any dismissal not provided for in this rule, other than a dismissal for lack of jurisdiction, ... operates as an adjudication upon the merits. The district court here did cite Rule 41(b), but it may have been mistaken in what it regarded as the \"merits” of the issue before it. . A case relied upon by the district court, Triple-S, Inc. v. Pellot, 41 F.Supp.2d 122 (D.P.R.1999), is similarly inapposite. The question in Triples was not whether prejudice should attach to a dismissal for failure to exhaust, but rather the propriety of a relit-igation injunction based on the dismissal of pendent state-law" }, { "docid": "8782366", "title": "", "text": "Maddox’s Counts 1 and 4 “without prejudice” on exhaustion grounds. A dismissal without prejudice normally “does not qualify as an appealable final judgment because the plaintiff is free to re-file the case.” Larkin v. Galloway, 266 F.3d 718, 721 (7th Cir.2001). But certain circumstances allow us to consider such a dismissal as final. For example, “if the plaintiff cannot cure the defects in his complaint, the dismissal in effect was with prejudice and is final for purposes of appellate review.” Barnes v. Briley, 420 F.3d 673, 676-77 (7th Cir.2005) (quotation omitted). There is nothing to indicate that Maddox can fix his grievances and he has no more remedies to exhaust. Accordingly, the dismissal without prejudice does not preclude our appellate jurisdiction. See id. at 677 (district court’s dismissal of complaint without prejudice for failure to exhaust administrative remedies was final appealable order where inmate filed grievances and pursued them to conclusion and there was no indication that Illinois would allow him to file another). It is apparent that the district court is finished with this case. When the district court dismissed Counts 1 and 4 for failure to exhaust, it stated: “All the other matters and issues, once the Court makes the finding, the failure to exhaust the other matters, become moot and the Court cannot address those. So you will have a right to appeal this decision, Mr. Maddox, but that will be the finding and ruling of this Court.” The court made the following entry: “The Court after hearing argument from parties, hereby GRANTS the Motion for Summary Judgment, finding that the plaintiff failed to exhaust all administrative remedies by failing to name] ] Love, Gar-nett and Ryker in his grievances!.] The Court finds that all other matters are Moot, and advises the plaintiff of his appeal rights.” The court then entered judgment, dismissing Counts 2 and 3 with prejudice and Counts 1 and 4 without prejudice. The court could have at that point declined to exercise supplemental jurisdiction over Maddox’s state law claims, but it didn’t do that. Instead, it in effect dismissed those claims as moot." }, { "docid": "16340008", "title": "", "text": "is patently clear — and here it is not-that an administrative charge would be time-barred, the question whether the charge is timely (and if so, as to which defendants) is a matter for the responsible agency in the first instance, and for the district court in the next. Here, the district court did not address this issue and neither do we. . For this proposition, the court cited In re Reed, 861 F.2d 1381 (5th Cir.1988), Siaca v. Autoridad de Acueductos y Alcantarillados, 160 F.Supp.2d 188 (D.P.R.2001), and Maldonado-Cordero v. AT & T, 73 F.Supp.2d 177 (D.P.R.1999). None of these cases is pertinent. Reed concerns neither Title VII nor administrative exhaustion; it holds simply that dismissal for failure to comply with discovery orders is a final judgment on the merits for purposes of res judicata. Id. at 1382-83. Siaca does concern the dismissal of a civil rights action for failure to exhaust administrative remedies, but in circumstances quite unlike the facts of the instant case — the plaintiff in Siaca sought to assert claims in federal court that he had not raised in his charge filed with the EEOC, and there was no suggestion that the plaintiff still had time to cure the omission. Id. at 194-95. Maldonado-Cordero involves the dismissal with prejudice of Title VII claims for various defects in the plaintiffs' efforts to exhaust administrative remedies, most of which could not have been timely cured. Id. al 186-90. With respect to the remaining claims, the plaintiffs in Maldonado-Cordero were still in the process of exhausting EEOC procedures. Significantly, as to those claims the court ordered dismissal without prejudice to any litigation after exhaustion. Id. at 187-88. . By the same July 30 opinion and order, the district court also dismissed plaintiffs’ Title VII claims against the federal defendants “for the same reasons it granted the other co-defendants' motion” — failure to exhaust administrative remedies. Again, the court expressly termed its dismissal \"with prejudice.” . Plaintiffs' August 12, 2002 notice of appeal indicates that they initially intended to challenge the district court's dismissal of all of their claims against" }, { "docid": "22071915", "title": "", "text": "and unsafe living conditions in violation of the Eighth Amendment of the United States Constitution. Defendants moved to dismiss for failure to exhaust administrative remedies as required by the Prison Litigation Reform Act, 42 U.S.C. § 1997e(a). The district court granted Defendants’ motion and dismissed the action with prejudice. It held that Griffin had failed to exhaust his administrative remedies, noting that he alleged deliberate indifference to his medical needs in his federal action without having first grieved it to the prison. Griffin filed a Motion to Reconsider, which the district court granted for reasons unrelated to this appeal. The district court then dismissed the action without prejudice, reiterating the reasoning underlying its earlier dismissal. Griffin timely appeals. The district court’s dismissal without prejudice would typically constitute a non-final judgment and preclude appellate review. However, we treat the dismissal as final because Griffin “has no way of curing the defect found by the court: there is no indication he could begin a new administrative process in the prison.” See Butler v. Adams, 397 F.3d 1181, 1183 (9th Cir.2005). A dismissal for failure to exhaust administrative remedies receives “clear error” review of factual issues. Wyatt v. Terhune, 315 F.3d 1108, 1117 (9th Cir.2003). We review the district court’s legal conclusions de novo. Id. Discussion The Prison Litigation Reform Act requires that a prisoner exhaust available administrative remedies before bringing a federal action concerning prison conditions. 42 U.S.C. § 1997e(a) (2008); see Porter v. Nussle, 534 U.S. 516, 524, 122 S.Ct. 983, 152 L.Ed.2d 12 (2002) (“Even when the prisoner seeks relief not available in grievance proceedings, notably money damages, exhaustion is a prerequisite to suit.”). Exhaustion must be “proper.” Woodford v. Ngo, 548 U.S. 81, 93, 126 S.Ct. 2378, 165 L.Ed.2d 368 (2006). This means that a grievant must use all steps the prison holds out, enabling the prison to reach the merits of the issue. Id. at 90, 126 S.Ct. 2378. Prisoners need comply only with the prison’s own grievance procedures to properly exhaust under the PLRA. Jones v. Bock, 549 U.S. 199, 218, 127 S.Ct. 910, 166 L.Ed.2d 798" }, { "docid": "21608120", "title": "", "text": "was aware that such procedures existed. Id. at 1523. The fact that Mr. or Mrs. Hayes may have expressed some concern to school officials about the placement of the children in the time-out room does not satisfy their obligation to request a hearing as required by the Act. See Evans v. District No. 17, 841 F.2d 824, 829 (8th Cir.1988) (parents’ expressions of concern not enough to trigger procedural mechanisms of Act). The rule that administrative remedies under the EHA must be exhausted before judicial review is sought, however, should not be applied inflexibly. Association for Retarded Citizens, Inc., 830 F.2d at 160. For example, exhaustion of administrative remedies is not required if adequate relief is not reasonably available or pursuit of such relief would be futile. See Mrs. W., 832 F.2d at 756-57; Association for Retarded Citizens, Inc., 830 F.2d at 160-61; J.G., 830 F.2d at 447. Here, nothing in the record indicates, nor do the parties argue, that administrative relief would be inappropriate in any way. We hold that the district court erred in proceeding to the merits of the federal constitutional and state law claims in this case, for the reason that the plaintiffs failed to exhaust their administrative remedies as required under the EHA. We therefore REVERSE and REMAND to the district court with instructions to DISMISS for lack of jurisdiction. . After examining the briefs and appellate record, this panel has determined unanimously that oral argument would not materially assist the determination of this appeal. See Fed.R. App.P. 34(a); 10th Cir.R. 34.1.9. The cause is therefore ordered submitted without oral argument. . Section 1415 is sometimes referred to as part of the Education for All Handicapped Children Act of 1975, Pub.L. No. 94-142, 89 Stat. 773, which amended the Education of the Handicapped Act. . “ Time-out' is a phrase used to mean a period of time in which a child may be placed in an isolated area away from other students in order to regain composure and so as not to disrupt the class.” Hayes Through Hayes v. Unified School Dist. No. 377, 669" }, { "docid": "15123250", "title": "", "text": "(5th Cir.1974) (dismissal of pro se prisoner complaint with prejudice constituted reversible error when defects might have been cured by amendment). Indeed, we have extended to pro se plaintiffs an opportunity to remedy defects potentially attributable to their ignorance of federal law and motion practice both in a summary judgment and in a Fed.R.Civ.P. 12(b)(6) context. See Jaxon v. Circle K Corp., 773 F.2d 1138, 1140 (10th Cir.1985) (“The district court abused its discretion by failing to give [the pro se plaintiff] ‘a meaningful opportunity to remedy the obvious defects in his summary judgment materials.’ ”) (quoting Barker v. Norman, 651 F.2d 1107, 1128-29 (5th Cir.1981)); Cooper v. United States Penitentiary, 433 F.2d 596, 597 (10th Cir.1970) (per curiam) (dismissal of pro se prisoner complaint for failure to allege exhaustion of administrative remedies under FTCA error where plaintiff not given opportunity to meet asserted deficiency in pleading). Cf. Eldridge v. Block, 832 F.2d 1132, 1137 (9th Cir.1987) (before dismissing a pro se action, court should make certain that other less drastic alternatives not available); Remmers v. Brewer, 475 F.2d 52, 53 (8th Cir.1973) (per curiam) (opportunity to respond is prerequisite to dismissal in civil case). The record in the present case suggests that plaintiff was initially unaware of the crucial distinction between his references to “inmates” and a specific reference to himself. In his Motion For Leave To Proceed On Appeal Without Prepayment of Costs or Fees at 2, now apprised of the significance of the omission by the district court’s order of dismissal, plaintiff avers that he “was in fact on this [‘adjustment’] block and being subjected to the conditions complained of.” The purpose of the Federal Rules of Civil Procedure is to encourage final dispositions on the merits. Cf. Dussouy v. Gulf Coast Inv. Corp., 660 F.2d 594, 598 (5th Cir.1981) (“The policy of the federal rules is to permit liberal amendment to facilitate determination of claims on the merits and to prevent litigation from becoming a technical exercise in the fine points of pleading”). Accordingly, we hold that the district court erred in dismissing plaintiff’s complaint with" }, { "docid": "22141557", "title": "", "text": "Union 392, 10 F.3d 1064 (4th Cir.1993). In Domino Sugar, the district court dismissed the plaintiffs complaint without prejudice for failure to exhaust contractual grievance and arbitration remedies, and the plaintiff appealed. In holding that section 1291 permitted that appeal, we ruled that the district court’s dismissal of a complaint without prejudice could be treated as a final order under section 1291 only if “the grounds for dismissal clearly indicate that no amendment in the complaint could cure the defects in the plaintiffs case.” Id. at 1067 (alteration and quotation marks omitted) (quoting Coniston Corp. v. Village of Hoffman Estates, 844 F.2d 461, 463 (7th Cir.1988)). On the particular facts, we reasoned that “the district court [had] essentially made a final ruling that the [plaintiff] had to proceed to arbitration before seeking judicial relief,” and that “the grounds of the dismissal made clear that no amendment could cure the defects in the Company’s case.” Id. (alterations omitted) (quoting Coniston Corp., 844 F.2d at 463). In this case, the district court’s dismissal without prejudice is likewise a “final order” under the Domino Sugar test. As in Domino Sugar, the district court here did not identify any defect that could possibly be cured by mere amendment of the petition; rather, the district court held that no such petition could proceed without prior authorization from this court. J.A. 17. Accordingly, we conclude that the dismissal without prejudice of Jones’ petition was a “final order” within the meaning of section 2253(c)(1)(A). Jones contends that the dismissal was not a “final order” but, instead, a “collateral order,” and thus that the certificate of appealability requirement of section 2253(c)(1) should not apply. This characterization is intuitively implausible; dismissing the petition for lack of jurisdiction terminated all proceedings in the district court, so the order was plainly not “collateral” to any pending proceedings. More basically, however, Jones’ argument rests on a fundamental misunderstanding of the “collateral order” doctrine. That doctrine treats certain interlocutory orders as final for purposes of appeal, on the grounds that such “collateral orders” present self-contained issues that are independently ripe for immediate appellate" }, { "docid": "22069085", "title": "", "text": "properly dismissed the action for failure to exhaust, should not have reached the merits of Nyhuis’s claim, that portion of the District Court’s decision will be vacated. . We express our appreciation to Joseph M. Ramirez, Esquire, who, acting pro bono at the request of the court, represented Mr. Ny-huis both ably and zealously. . To be appealable under 28 U.S.C. § 1291, an order of dismissal must ordinarily be with prejudice. See, e.g., Bhatla v. U.S. Capital Corp., 990 F.2d 780, 786 (3d Cir.1993). Though the District Court may have dismissed Nyhuis's action without prejudice, in this situation, that description is anomalous for two reasons. First, the \"without prejudice” description is in tension with the Magistrate Judge’s reaching the merits. Had Nyhuis exhausted his remedies and refiled his action, the Magistrate Judge (and the District Court by adopting her report and recommendation) would have no doubt dismissed Nyhuis's action on the merits; her report says as much. Therefore, in a sense, Nyhuis had no reason to cure the defect in his complaint. Second, Nyhuis did not attempt to cure his complaint by availing himself of the administrative process; instead, he filed this appeal, raising the argument that exhausting his administrative remedies would be futile. In doing so, he effectively stands on his original complaint. Under either of these circumstances, appellate review from a dismissal without prejudice is appropriate. See Garber v. Lego, 11 F.3d 1197, 1198 n. 1 (3d Cir.1993) (noting that plaintiff can appeal from a dismissal without prejudice when plaintiff cannot cure the defect in his complaint or when plaintiff declares his intention to stand on the complaint); see also Bethel v. McAllister Bros., Inc., 81 F.3d 376, 381 (3d Cir.1996); Trevino-Barton v. Pittsburgh Nat'l Bank, 919 F.2d 874, 878 (3d Cir.1990). . See Whitley v. Hunt, 158 F.3d 882, 887 (5th Cir.1998) (not requiring exhaustion before filing Bivens action requesting monetary damages when exhaustion would be futile because no monetary administrative remedies were available); Lunsford v. Jumao-As, 155 F.3d 1178, 1179 (9th Cir.1998) (same); Garrett v. Hawk, 127 F.3d 1263, 1266-67 (10th Cir.1997) (same; noting that" }, { "docid": "16207802", "title": "", "text": "so does not bar the reinstatement of the suit unless it is too late to exhaust.” Walker v. Thompson, 288 F.3d 1005, 1009 (7th Cir.2002); see also Ford v. Johnson, 362 F.3d 395, 401 (7th Cir.2004) (holding that “all dismissals under § 1997e(a) should be without prejudice” (emphasis in original)). The district court’s order did not indicate whether the dismissal was with or without prejudice, but we shall assume for present purposes that it was without prejudice. A dismissal without prejudice normally “does not qualify as an appealable final judgment because the plaintiff is free to re-file the case.” Larkin v. Galloway, 266 F.3d 718, 721 (7th Cir.2001). Certain circumstances allow us, however, to consider such a dismissal as final. For instance, if the plaintiff “cannot cure the defects” in his complaint, the dismissal in effect was with prejudice and is final for purposes of appellate review. Strong v. David, 297 F.3d 646, 648 (7th Cir.2002); see also Larkin, 266 F.3d at 721 (stating that, if the “plaintiff will not be able to amend her complaint, the dismissal is final” and ap-pealable). In this case, Mr. Barnes “has no more remedies to exhaust, so the defect that the district judge identified is irreparable — if it is a defect at all.” Strong, 297 F.3d at 648 (emphasis in original). Neither the record nor the defendants suggest any amendment that Mr. Barnes could make to his complaint that would remedy the district court’s concern that he failed to exhaust his administrative remedies before he filed his original complaint. We therefore are confident of our jurisdiction under 28 U.S.C. § 1291 to review the district court’s dismissal of Mr. Barnes’ action. B. Standard of Review We review a district court’s grant or denial of a motion to dismiss under Federal Rule of Civil Procedure 12(b)(6) de novo. Williams v. Seniff, 342 F.3d 774, 781 (7th Cir.2003). We construe the complaint “in the light most favorable to the plaintiff, taking as true all well-pleaded factual allegations and making all possible inferences from those allegations in his or her favor.” Lee v. City of" }, { "docid": "23653957", "title": "", "text": "and grant summary judgment dismissing his remaining claims because he failed to exhaust administrative remedies. Morales did not file any objections, and, on September 24, 1999, Judge Jed S. Rakoff adopted the report-recommendation and dismissed Morales’ complaint with prejudice. Although the district court granted Morales’ subsequent request to file objections out-of-time, it then rejected those objections as lacking merit and again ordered dismissal of his lawsuit with prejudice. Morales appealed, arguing principally that the PLRA administrative exhaustion requirement does not apply to his sexual harassment, retaliation, and medical indifference claims and that he stated a claim upon which relief can be granted with respect to each of these claims. He concedes that he did not make actionable allegations of race discrimination. Although defendants acknowledge that Lawrence precludes us from affirming the district court’s judgment because Morales failed to exhaust administrative remedies for his retaliation claim, they preserve this argument for en banc or Supreme Court review. Defendants also contend that none of Morales’ causes of action states a claim upon which relief can be granted and that he was required to — and did not — exhaust his administrative remedies for his sexual harassment claim and a portion of his medical indifference claim. DISCUSSION 1. Dismissal With Prejudice Although the district court adopted the report-recommendation, which recommended dismissal on the basis of plaintiffs failure to exhaust available administrative remedies except as to the medical indifference claim, it dismissed all of his claims with prejudice. This was error. Failure to exhaust administrative remedies precludes only the current lawsuit, see 42 U.S.C. § 1997e(a). Therefore, the dismissal of claims for failure to exhaust should be without prejudice. See Giano v. Goord, 250 F.3d 146, 150-51 (2d Cir.2001) (holding that district court “correctly dismissed [an unexhausted] count ... without prejudice”). II. Retaliation Although defendants acknowledge that we cannot affirm the district court’s dismissal of Morales’ retaliation claim based on his failure to exhaust administrative remedies, they urge that we affirm on the alternative basis of failure to state a claim. In order to do so, we must find that “it appears beyond doubt" }, { "docid": "15603865", "title": "", "text": "amend the complaint and dismiss the claims against Harmon. After receiving Kozohorsky’s motion to amend, a deputy clerk for the United States District Court for the Eastern District of Arkansas struck through the title of the motion to amend and renamed it “Supplement to the Objections,” and then docketed the motion under this new title. The deputy clerk made the title change to the motion at the request of one of the District Court’s law clerks. On March 5, 2002, without explicitly ruling on Kozohorsky’s motion to amend his complaint, the District Court adopted the findings and recommendations of the Magistrate Judge and dismissed Kozohorsky’s complaint without prejudice. This appeal followed. II. Kozohorsky first argues that the District Court erred in dismissing his complaint for failure to exhaust administrative remedies with respect to his claims against Harmon. We review the District Court’s findings of fact for clear error and conclusions of law de novo. See Jones v. Norris, 310 F.3d 610, 612 (8th Cir.2002) (per curiam). Under § 1997e(a), a prisoner cannot bring a § 1983 action with respect to prison conditions “until such administrative remedies as are available are exhausted.” See Porter v. Nussle, 534 U.S. 516, 524, 122 S.Ct. 983, 152 L.Ed.2d 12 (2002). We have previously held, as is the case here, that “[w]hen multiple prison condition claims have been joined ... the plain language of § 1997e(a) requires that all available prison grievance remedies must be exhausted as to all of the claims.” Graves v. Norris, 218 F.3d 884, 885 (8th Cir.2000) (per curiam) (emphasis added). Because Kozohorsky did not exhaust his administrative remedies on his failure-to-supervise claim against Harmon, he failed to exhaust all available administrative remedies as to all of his claims. See id. at 885-86 (holding dismissal proper where at least some of plaintiffs claims were unexhausted when the district court ruled). Despite this defect in Kozohorsky’s complaint, we believe the District Court abused its discretion by implicitly denying his motion to amend the complaint. See Wiles v. Capitol Indem. Corp., 280 F.3d 868, 871 (8th Cir.2002) (noting abuse-of-discretion standard applies to a" }, { "docid": "23245799", "title": "", "text": "to amend his complaint in order to correct the pleading defect. Because the magistrate judge determined that Baxter was barred from amending his complaint, he recommended the dismissal of Baxter’s action without prejudice for failing to plead the exhaustion of his administrative remedies in his initial complaint. Baxter objected to the second report, reiterating that he had, in fact, exhausted his administrative remedies. The district court summarily overruled Baxter’s objections, adopted the magistrate judge’s recommendation, and dismissed the case without prejudice. Baxter now appeals the district court’s dismissal of his action. II This case presents the discrete legal question of whether a prisoner, bringing an action under 42 U.S.C. § 1983 covered by the Prison Litigation Reform Act and failing to allege in his initial complaint that he had first exhausted his administrative remedies, may amend his complaint to allege exhaustion and satisfy the PLRA. Baxter does not present extensive argument on this legal point, claiming only that he had, in fact, exhausted his administrative remedies. Our independent review of the law on this issue indicates that a prisoner may not amend his complaint to cure the failure to plead the exhaustion of administrative remedies, if his action is covered by the PLRA. The PLRA requires prisoners challenging “prison conditions” to exhaust all administrative remedies before bringing a Section 1983 action. 42 U.S.C. § 1997e(a). In Brown v. Toombs, 139 F.3d 1102 (6th Cir.1998), we required that a prisoner bringing such an action specifically allege in his complaint that he had exhausted all administrative remedies. Id. at 1104. We also required that the plaintiff attach to his complaint the disposition(s) of his available administrative remedies. Ibid. Explaining our rule in a later case, we noted that the heightened pleading standard permits federal courts to determine whether the claim can be decided on the merits, without inefficiently expending judicial resources on evidentiary hearings and responsive pleadings. See Knuckles El v. Toombs, 215 F.3d 640, 642 (6th Cir.2000). Several portions of the PLRA require federal district courts to undertake sua sponte review of Section 1983 complaints filed by prisoners to determine whether" }, { "docid": "23147910", "title": "", "text": "for failure to exhaust administrative remedies. In this case the exhaustion with respect to the main issue resulted in a favorable decision for the plaintiff. The oral testimony as well as other information before this Court does not make clear any exhaustion with respect to these other issues. Ortiz, 323 F.3d at 194 (alterations in original). The action was dismissed. The memorandum, judgment, and order of the district court did not state whether the dismissal was with or without prejudice. Ortiz appealed. In a per curiam opinion, we ordered that appellate counsel be appointed for Ortiz and invited counsel to ask that this case be heard with other pending appeals involving related PLRA issues, id. at 196, which he later did. We identified four issues to be addressed “[i]n addition to any other arguments counsel may choose to raise.” Id. They were, (1) whether Ortiz’s proffered evidence that he administratively exhausted his Eighth Amendment claim satisfies the requirements of § 1997e(a); (2) whether § 1997e(a) requires “total exhaustion” and, if so, whether Ortiz may now withdraw any unexhausted claims; (3) whether Ortiz’s factual allegations that the conditions of his confinement in SHU were unusually harsh sufficed to raise the question of whether that confinement implicated a constitutionally protected liberty interest so as to preclude 12(b) dismissal; (4) whether Ortiz’s complaint adequately pled, or could be amended adequately to plead, that the defendants are subject to supervisory liability, under the test described in Wright v. Smith, 21 F.3d 496, 501 (2d Cir.1994), for the alleged Eighth Amendment violations. Id. Ortiz concedes that his Eighth Amendment cruel and unusual punishment claim is not viable because (1) his complaint did not name the prison officials responsible for his allegedly abusive treatment during SHU confinement, and (2) the named defendants did not possess supervisory authority over the unnamed prison officials responsible for Ortiz’s SHU treatment. Accordingly, Ortiz concedes that there is no issue of supervisory liability in this case. We thus limit our review to the first three of our questions. DISCUSSION I. Standard of Review “We review a dismissal granted under Rule 12(b)(6)" }, { "docid": "22062049", "title": "", "text": "by the PLRA. On March 27, 2006, the .magistrate judge also determined, after an evidentiary hearing on the issue, that O’Guinn had failed to file NDOC grievances related to mental health treatment. The district court adopted the magistrate’s recommendation on March 28, 2006. The district court noted O’Guinn’s argument that he exhausted his mental health treatment claims after he filed his lawsuit, but held that O’Guinn was required to file a new action to reflect this exhaustion. Accordingly, the district court dismissed - O’Guinn’s suit without prejudice. O’Guinn filed a timely notice of appeal. II Dismissals based on a prisoner’s failure to exhaust remedies are reviewed de novo; factual findings are reviewed for clear error. See Wyatt v. Terhune, 315 F.3d 1108, 1117 (9th Cir.2003). In ruling on a dismissal motion, a “court may look beyond the pleadings and decide disputed issues of fact. If the district court concludes that the prisoner has not exhausted nonjudicial remedies, the proper remedy is dismissal of the claim without prejudice.” Id. at 1120 (internal citation omitted). We may affirm on any ground present in the record. See Sherman v. Harbin (In re Harbin), 486 F.3d 510, 520 (9th Cir.2007). III O’Guinn’s key argument is that the PLRA does not require exhaustion of claims arising under the ADA or Rehabilitation Act. O’Guinn claims that the district court erred in characterizing his second amended complaint as bringing § 1983 claims, rather than ADA and Rehabilitation Act claims, and then compounded this error by dismissing his claims for failure to exhaust administrative remedies. As explained below, we agree that O’Guinn pleaded claims under the ADA and Rehabilitation Act rather than under § 1983, but conclude that the PLRA requires administrative exhaustion of ADA and Rehabilitation Act claims. A The district court mischaracterized O’Guinn’s complaint as arising under § 1983. O’Guinn’s complaint clearly-pleaded ADA and Rehabilitation Act statutory violations. As discussed above, each of O’Guinn’s complaints stated that his claims were brought under the ADA and Rehabilitation Act and that he was not filing a civil rights complaint. Further, the factual assertions in the second amended complaint" }, { "docid": "12701526", "title": "", "text": "Accordingly, the requirement of obtaining a right-to-sue letter may be waived by the parties or the court. See id. at 1031. In Portis v. Ohio, 141 F.3d 632 (6th Cir.1998), a plaintiff brought suit against the state of Ohio under Title VII and Ohio state law for sexual discrimination. The district court dismissed the plaintiffs claim without prejudice because the plaintiff had not yet exhausted her administrative remedies because she had not obtained a right-to-sue letter from the EEOC as required by 42 U.S.C. § 2000e-5 and had not filed a charge with the Ohio Civil Rights Commission as required by 42 U.S.C. § 2000e-5(e) and 29 C.F.R. § 1601.73. See id. at 633. In Portis, the plaintiff received her right- to-sue letter one week after she filed her complaint. On appeal, the State of Ohio argued that plaintiffs failure to exhaust her administrative remedies was a proper alternative ground upon which to dismiss Plaintiffs claim. See id. at 634. This Court, however, rejected the State of Ohio’s contention, stating that “[w]e see no reason to bar [the plaintiffs] claim solely on the grounds of a non-jurisdictional requirement whose brief absence caused Ohio no prejudice in this case.” Id. The Court went further to hold that “the proper time for Ohio to raise this argument was between the filing of the lawsuit and [the plaintiffs] receipt of the letter.” Id. at 635. Here, although Plaintiff did not apprise the district court of his right-to-sue letter until his motion for reconsideration, Plaintiff had in fact received the right-to-sue letter prior to the district court’s order granting summary judgment. However, as in Portis, there is no jurisdictional defect and no evidence that Defendants suffered any prejudice from Plaintiffs failure to initially satisfy this condition precedent, a defect he later cured. See Portis, 141 F.3d at 634. We therefore think it would be unduly harsh, under these circumstances, to deny Plaintiff his day in court as to his ADA claim; accordingly, we conclude that the district court improperly dismissed Plaintiffs claim on that basis. Nevertheless, this Court determines that Plaintiffs claim for wrongful" }, { "docid": "23638291", "title": "", "text": "71 n. 5 (3d Cir.1994). Rule 28(a)(5) of the Federal Rules of Appellate Procedure and our Local Appellate Rule 28.1(a) require appellants to set forth the issues raised on appeal and to present an argument in support of those issues in their opening brief. See also Kost v. Kozakiewicz, 1 F.3d 176, 182 (3d Cir.1993). Ghana did not do so, and “[i]t is well settled that if an appellant fails to comply with these requirements on a particular issue, [he] ... normally has abandoned and waived that issue on appeal.” Id. Finally, we note that the District Court dismissed Ghana’s complaint without prejudice. Ordinarily, such an order is not appealable, but a prisoner whose complaint has been dismissed without prejudice for failure to exhaust may nonetheless appeal as though from a final order “when he declares his intention to stand on his complaint or when he cannot cure the defect in his complaint.” Booth v. Churner, 206 F.3d 289, 293 n. 3 (3d Cir.2000). We have stated that an appellant who does not attempt to avail himself of the administrative process, but who instead files an appeal raising the argument that exhaustion would be futile, “effectively stands on his original complaint” and that in such cases we may exercise jurisdiction over an order dismissing a complaint without prejudice. Nyhuis v. Reno, 204 F.3d 65, 68 n. 2 (3d Cir.2000). Here, Ghana argues that exhaustion is futile because the BOP administrative process cannot provide him with monetary relief, and we may therefore exercise jurisdiction over his appeal. B. Retroactivity of § 1997e(a) In his original complaint, Ghana sought declaratory and injunctive as well as monetary relief to remedy Holland’s alleged constitutional violations. The District Court dismissed the complaint for two reasons, and we address them in turn. First, the court held that the complaint was barred by the administrative exhaustion provision contained in § 803 of the PLRA, codified at 42 U.S.C. § 1997e(a), notwithstanding that Ghana had filed his complaint almost three months before the effective date of the PLRA. We review this issue of law de novo. See Prisco" }, { "docid": "22540819", "title": "", "text": "the defects in the plaintiffs case, [such that] the order dismissing the complaint is final in fact and [appellate jurisdiction exists].” 10 F.3d at 1066-67 (second alteration in original) (quoting Coniston Corp., 844 F.2d at 463). Moreover, in cases in which the district court granted a motion to dismiss on procedural grounds that no amendment to the pleadings could cure, we have found that the dismissal was final and appealable. In Domino Sugar, for instance, we held that the district court’s order of dismissal based on “failure to exhaust contractual remedies” was final and appealable because no amendment to the complaint could cure this procedural shortcoming. 10 F.3d at 1067. Likewise, we have determined that orders of dismissal without prejudice were final and appealable when cases were dismissed for procedural reasons unrelated to the contents of the pleadings, as in a case dismissed because the plaintiffs had no right to bring the particular causes of action, see GO Comput., Inc., 508 F.3d at 176, and in a case dismissed because the claims were barred by Heck v. Humphrey, see Young, 413 F.3d at 418. By contrast, in cases in which the district court granted a motion to dismiss for failure to plead sufficient facts in the complaint, we have consistently found, albeit in unpublished, non-precedential decisions, that we lacked appellate jurisdiction because the plaintiff could amend the complaint to cure the pleading deficiency.. See, e.g., Shackleford v. Riverside Reg’l Med. Ctr., 466 Fed.Appx. 287, 287 (4th Cir.2012) (per curiam) (unpublished) (“Because the deficiency identified by the district court— that the complaint did not assert sufficient allegations in support of its legal conclusions — may be remedied by the filing of a complaint that articulates adequate allegations, we conclude that the order ... is neither a final order nor an appealable interlocutory or collateral order.”); Hankins v. Ayers, 327 Fed.Appx. 388, 388-89 (4th Cir.2009) (per curiam) (unpublished); Green v. Booker, 149 Fed.Appx. 140, 141 (4th Cir.2005) (per curiam) (unpublished); Sindram v. Raker, 119 Fed.Appx. 528, 529 (4th Cir.2005) (per curiam) (unpublished). We think the time has come to enshrine this salutary" }, { "docid": "22779307", "title": "", "text": "prior showing of physical injury. This timely appeal followed. Because the District Court dismissed this case before the defendant was served, the defendant — Commissioner of the Pennsylvania Department of Corrections — was not technically a party to this suit. Therefore, we requested that the Commonwealth of Pennsylvania file a brief as amicus curiae. II. Jurisdiction The District Court’s dismissal of Mitchell’s retaliation and due process claims as frivolous is appealable under 28 U.S.C. 1291. See Wilson v. Rackmill, 878 F.2d 772, 773 (3d Cir.1989). Under the circumstances, his Eighth Amendment conditions-of-confinement claim is appeal-able as well. When a claim is dismissed without prejudice, we treat it as a final decision, appealable under 1291, “when a plaintiff ‘declares his intention to stand on his complaint or when he cannot cure the defect in his complaint.’ ” Ray, 285 F.3d at 291 (quoting Booth v. Churner, 206 F.3d 289, 293 n. 3 (3d Cir.2000), aff'd, 532 U.S. 731, 121 S.Ct. 1819, 149 L.Ed.2d 958 (2001)). While Mitchell has not clearly declared his intention to stand on his complaint, the defect for which the District Court dismissed Eighth Amendment conditions-of-confinement claim — failure to exhaust available administrative remedies— is no longer curable. See Booth, 206 F.3d at 293 n. 3. It has been six years since the events resulting in this appeal, and prison regulations allowed Mitchell only fifteen days “after the events upon which the claims are based” to file a grievance. DC-ADM 804 VftB)(2). III. Discussion This case raises four questions, which we address in the following order: (1) whether Mitchell exhausted the available administrative remedies on his Eighth Amendment conditions-of-confinement claim; (2) is his retaliation claim frivolous; (3)whether his due process claim is frivolous; and (4) has Mitchell alleged a physical injury sufficient to support his emotional injury claims. Throughout we bear in mind that, “however inartfully pleaded,” the “allegations of [a] pro se complaint [are held] to less stringent standards than formal pleadings drafted by lawyers.” Haines v. Kerner, 404 U.S. 519, 520, 92 S.Ct. 594, 30 L.Ed.2d 652 (1972). A. Exhaustion Before filing suit, prisoners must exhaust" }, { "docid": "19900409", "title": "", "text": "able to recover on its other claims via the administrative process — conversion, unfair business practices, unjust enrichment, and imposition of a constructive trust — it does not follow that the City can simply sue in federal court without exhausting its administrative remedies. The City’s theory of liability for all of the torts and contracts claims is completely dependent on the Internet travel companies owing the tax to the city. Put simply, if the tax is not owed, the claims brought by the City fail. Because the City’s other claims are intertwined with the tax claim, the City must actually assess the tax before it can sue in federal court. Similarly, we reject the City’s characterization that exhaustion would be futile because the position of the parties is already “clear.” The issue in this case is not the “positions” of the parties but rather the actual tax liability. If such a futility exception to the administrative exhaustion requirement were triggered by a taxpayer taking the position that the tax is not owed, the exception would swallow the rule. II. Unexhausted Claims Should Be Dismissed Without Prejudice Claims should be dismissed with prejudice only when it is clear that no amendment could cure a defect in the complaint. The district court mistakenly concluded that dismissal with prejudice was appropriate “because it is clear that absent any actual assessment of tax liability against the Defendants, any amendment to the complaint would be futile.” However, failure to exhaust administrative remedies is properly treated as a curable defect and should generally result in a dismissal without prejudice. See O’Guinn v. Lovelock Corr. Center, 502 F.3d 1056, 1063 (9th Cir.2007); Wyatt v. Terhune, 315 F.3d 1108, 1119-20 (9th Cir.2003). Nothing in this case suggests a reason to depart from this general rule. Hence, we affirm the dismissal for lack of subject matter jurisdiction but remand so that the dismissal is without prejudice. AFFIRMED IN PART; REVERSED IN PART. Costs on appeal are awarded to Appellees. . This background description is derived from the Complaint, which we accept as true." } ]

[ { "docid": "7243055", "title": "", "text": "challenge the effectiveness of his trial counsel on resen-tencing. Both may have been ineffective, but that is irrelevant for purposes of procedural default because Dellinger also pursued post-conviction relief in state court and failed to present an ineffective assistance claim (of either trial or appellant counsel) at that level. Because he represented himself in that proceeding (and thus cannot blame counsel), and because we have stated that youth and ignorance are insufficient to constitute “cause” for default, his failure to raise an ineffective assistance of counsel claim during the post-conviction proceeding constitutes a full default. Because Dellinger is unable to show cause to excuse his default, we need not reach the issue of whether he could establish prejudice. See Henderson, 919 F.2d at 1273. Absent a showing of cause, a “defaulted claim is reviewable only where a refusal to consider it would result in a fundamental miscarriage of justice.” United States ex rel. Bell v. Pierson, 267 F.3d 544, 551 (7th Cir.2001). Dellinger suggests that the “fundamental miscarriage of justice” standard applies to excuse his default. However, our case law is clear that this relief is limited to situations where the constitutional violation has probably resulted in a conviction of one who is actually innocent. See Schlup v. Delo, 513 U.S. 298, 327, 115 S.Ct. 851, 130 L.Ed.2d 808 (1995). To show “actual innocence,” Dellinger must present clear and convincing evidence that, but for the alleged error, no reasonable juror would have convicted him. Id. While Dellinger claims innocence of “inflicting sentence-doubling injuries,” this is a challenge to his sentence, not to the conviction itself. He does not claim that he is an innocent man, wrongly convicted of crimes he did not commit, as defined by Schlup. Nor could he, given his own admission at trial that he fired shots at people running away from him. Thus, there has been no “fundamental miscarriage of justice” as defined by United States Supreme Court precedent. One final note. Dellinger spends a great deal of his appellate brief arguing that his equal protection rights were violated because he was sentenced to consecutive sentences" } ]

[ { "docid": "14970247", "title": "", "text": "the presentation of newly discovered evidence, would render unconstitutional the execution of petitioner in this case.”); id. at 430, 113 S.Ct. 853 (Blackmun, J., dissenting) (“[T]he Constitution forbids the execution of a person who has been validly convicted and sentenced but who, nonetheless, can prove his innocence with newly discovered evidence.”). While noting that the “threshold showing for such an assumed right would necessarily be extraordinarily high,” the majority denied habeas relief because “the showing made ... falls far short of any such threshold.” Id. at 417, 113 S.Ct. 853. Cf. Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979) (habeas court may review an independent constitutional claim that the evidence adduced at trial was insufficient to convict a criminal defendant beyond a reasonable doubt); Thompson v. Louisville, 362 U.S. 199, 80 S.Ct. 624, 4 L.Ed.2d 654 (1960) (reversing conviction of “Shuffling Sam” on direct review from conviction in Louisville’s police court where there was no evidence that defendant violated city ordinance). More than a decade after Herrera, in House v. Bell, 547 U.S. 518, 126 S.Ct. 2064, 165 L.Ed.2d 1 (2006), the Supreme Court considered a habeas challenge to a state capital conviction which asserted innocence both as a “gateway” to reaching constitutional claims forfeited under state law and as a substantive basis for habeas relief. As to the gateway claim, the Court reaffirmed its earlier holding in Schlup v. Delo, 513 U.S. 298, 115 S.Ct. 851, 130 L.Ed.2d 808 (1995), that “prisoners asserting innocence as a gateway to defaulted claims must establish that, in light of new evidence, ‘it is more likely than not that no reasonable juror would have found petitioner guilty beyond a reasonable doubt.’ ” House, 547 U.S. at 536-37, 126 S.Ct. 2064 (quoting Schlup, 513 U.S. at 327, 115 S.Ct. 851). While emphasizing that the Schlup standard “permits review only in the extraordinary case,” id. at 538, 126 S.Ct. 2064 (internal quotation marks omitted), the Court cautioned that it “does not require absolute certainty about the petitioner’s guilt or innocence.” Id. On the freestanding actual innocence claim, as it did" }, { "docid": "871275", "title": "", "text": "(2009) (question remains open); House v. Bell, 547 U.S. 518, 554-55, 126 S.Ct. 2064, 165 L.Ed.2d 1 (2006) (same); In re Davis, 557 U.S. 952, 130 S.Ct. 1, 174 L.Ed.2d 614 (2009) (mem.) (Stevens, J., concurring) (same); Bradford v. Brown, 831 F.3d 902, 917 n.7 (7th Cir. 2016) (Hamilton, J., dissenting) (same). We acknowledge that it is possible that Tabb, despite his conviction, is actually innocent of shooting Salvador Gomez. The case against Tabb depended entirely on the accuracy of Mr. Gomez’s identification. Such identifications of strangers in quick, high-stress encounters are often mistaken, and some other witnesses’ accounts support Tabb’s claim of innocence. If the federal courts will recognize freestanding constitutional claims of actual innocence, however, it is clear that evidence of innocence will need to meet an “extraordinarily high” threshold. Herrera, 506 U.S. at 392, 417, 113 S.Ct. 853. Tabb’s evidence is not strong enough for this case to break that new constitutional ground. He has called his conviction into doubt, but he has not offered objective and highly reliable evidence of actual innocence. Thus, Tabb would be entitled to habeas relief only if he could establish an independent constitutional violation. He cannot, for reasons we now explain. B. Standard of Review This habeas case is unusual in that the petitioner was allowed to conduct additional discovery and to supplement the record with deposition testimony relevant to his claims, and he moved for summary judgment. The district court denied both Tabb’s motion for summary judgment and the petition itself, all without a federal evidentiary hearing. Accordingly, our review of the district court’s decision is die novo. See, e.g., Blackmon v. Williams, 823 F.3d 1088, 1099 (7th Cir. 2016); Stitts v. Wilson, 713 F.3d 887, 891 (7th Cir. 2013). C. Brady Claim To establish a Brady violation, the petitioner must show that the State suppressed material evidence that was favorable to him. Brady, 373 U.S. at 87, 83 S.Ct. 1194; Strickler v. Greene, 527 U.S. 263, 280-81, 119 S.Ct. 1936, 144 L.Ed.2d 286 (1999). When the claim at issue was not decided on the merits in state court, we" }, { "docid": "21992942", "title": "", "text": "As no eviden-tiary hearing was held below, we are presented solely with the District Court’s legal conclusion to deny Bruce’s petition for a writ of habeas corpus, which we shall review de novo. Woodall v. Federal Bureau of Prisons, 432 F.3d 235, 239 n.3 (3d Cir. 2005). IV This leads to the question whether Gary Bruce was convicted of conduct that is not a crime in light of Fowler. It should be observed that we are venturing into something of a habeas corpus frontier, this being the first case in which this Court has considered the merits of an actual innocence claim under § 2241. A The Supreme Court has yet to decide whether a prisoner can obtain habeas relief based on a freestanding claim of actual innocence, having left the matter open time and again. Herrera v. Collins, 506 U.S. 390, 404-05, 113 S.Ct. 853, 122 L.Ed.2d 203 (1993); House v. Bell, 547 U.S. 518, 554-55, 126 S.Ct. 2064, 165 L.Ed.2d 1 (2006); District Attorney’s Office for Third Judicial Dist. v. Osborne, 557 U.S. 52, 71-72, 129 S.Ct. 2308, 174 L.Ed.2d 38 (2009). That does not mean, however, that innocence is irrelevant: a prisoner’s proof of actual innocence may provide a gateway for federal habeas review of procedurally defaulted or untimely claims of constitutional error. See McQuiggin v. Perkins, 569 U.S. 383, 133 S.Ct. 1924, 1931-32, 185 L.Ed.2d 1019 (2013). Bruce’s actual innocence claim does not come to us as a gateway issue. He is not seeking to demonstrate his innocence so as to proceed with some otherwise defaulted or untimely claim, but to obtain full habeas relief. If Bruce were indeed asserting a freestanding actual innocence claim, “the threshold showing for such an assumed right would necessarily be extraordinarily high.” Herrera, 506 U.S. at 417, 113 S.Ct. 853. We need not resolve whether Bruce’s actual innocence claim is a freestanding one. This Court’s precedent instructs that actual innocence claims under § 2241 are to be initially tested against the more relaxed (but still stringent) actual innocence gateway standard. Tyler, 732 F.3d at 246, To succeed under that standard," }, { "docid": "10695405", "title": "", "text": "the state courts’ expectations (which remains a possibility, see infra Part IV.B) his actual innocence claim might be cognizable under the authority of Judge Mannheimer’s concurrence. Federal law presents a similar opportunity. The State would take the position that a freestanding actual innocence claim is not cognizable under federal law; however, the State also concedes that it is presently an open question. In Herrera v. Collins, 506 U.S. 390, 417, 113 S.Ct. 853, 122 L.Ed.2d 203 (1993), the Supreme Court assumed without deciding that such a claim is possible. And in House v. Bell, 547 U.S. 518, 126 S.Ct. 2064,165 L.Ed.2d 1 (2006), the Court again declined to resolve “the question left open in Herrera” in such a way as to suggest that it will remain unanswered until it is squarely presented by a petitioner actually making a persuasive showing of actual innocence. Id. at 554-55, 126 S.Ct. 2064 (concluding that “whatever burden a hypothetical freestanding innocence claim would require, this petitioner has not satisfied it”). The same might be said of the question of whether there should be a distinction between capital and non-capital cases, although Herrera did suggest equal treatment. See Herrera, 506 U.S. at 405, 113 S.Ct. 853 (“[W]e have ‘refused to hold that the fact that a death sentence has been imposed requires a different standard of review on federal habeas corpus.’ ” (quoting Murray v. Giarratano, 492 U.S. 1, 9, 109 S.Ct. 2765, 106 L.Ed.2d 1 (1989) (plurality opinion))). In this circuit we not only have assumed that freestanding innocence claims are possible but also have articulated a minimum standard: “a habeas petitioner asserting a freestanding innocence claim must go beyond demonstrating doubt about his guilt, and must affirmatively prove that he is probably innocent.” Carriger v. Stewart, 132 F.3d 463, 476 (9th Cir.1997) (en banc); see also Jackson v. Calderon, 211 F.3d 1148, 1164-65 (9th Cir. 2000). In resolving the instant appeal, we need not decide the open questions surrounding freestanding actual innocence claims. Instead, we assume for the sake of argument that such claims are cognizable in federal habeas proceedings in both capital" }, { "docid": "22761448", "title": "", "text": "however, the Court described the threshold for any hypothetical freestanding innocence claim as “extraordinarily high.” 506 U. S., at 417. The sequence of the Court’s decisions in Herrera and Schlup — first leaving unresolved the status of freestanding claims and then establishing the gateway standard — implies at the least that Herrera requires more convincing proof of innocence than Schlup. It follows, given the closeness of the Schlup question here, that House’s showing falls short of the threshold implied in Herrera. * * * House has satisfied the gateway standard set forth in Schlup and may proceed on remand with procedurally defaulted constitutional claims. The judgment of the Court of Appeals is reversed, and the case is remanded for further proceedings consistent with this opinion. It is so ordered. Justice Alito took no part in the consideration or decision of this case. Chief Justice Roberts, with whom Justice Scalia and Justice Thomas join, concurring in the judgment in part and dissenting in part. To overcome the procedural hurdle that Paul House created by failing to properly present his constitutional claims to a Tennessee court, he must demonstrate that the constitutional violations he alleges “ha[ve] probably resulted in the conviction of one who is actually innocent,” such that a federal court’s refusal to hear the defaulted claims would be a “miscarriage of justice.” Schlup v. Delo, 513 U. S. 298, 326, 327 (1995) (internal quotation marks omitted). To make the requisite showing of actual innocence, House must produce “new reliable evidence” and “must show that it is more likely than not that no reasonable juror would have convicted him in the light of the new evidence.” Id., at 324, 327 (emphasis added). The question is not whether House was prejudiced at his trial because the jurors were not aware of the new evidence, but whether all the evidence, considered together, proves that House was actually innocent, so that no reasonable juror would vote to convict him. Considering all the evidence, and giving due regard to the District Court’s findings on whether House’s new evidence was reliable, I do not find it" }, { "docid": "21031857", "title": "", "text": "for which he was convicted, see, e.g., Schlup v. Delo, 513 U.S. 298, 326-27, 115 S.Ct. 851, 130 L.Ed.2d 808 (1995), or of the sentencing factors that rendered him eligible for the death penalty, see, e.g., Sawyer v. Whitley, 505 U.S. 333, 350, 112 S.Ct. 2514, 120 L.Ed.2d 269 (1992). However, as the district court recognized, the Supreme Court has strongly suggested that claims of actual innocence standing alone do not serve as an independent basis for habeas relief: “Claims of actual innocence based on newly discovered evidence have never been held to state a ground for federal habeas relief absent an independent constitutional violation occurring in the underlying state criminal proceeding.” Herrera v. Collins, 506 U.S. 390, 400, 113 S.Ct. 853, 122 L.Ed.2d 203 (1993). Citing Herrera, in Rouse v. Lee, 339 F.3d 238, 255 (4th Cir.2003), this court noted that “claims of actual innocence are not grounds for habeas relief even in a capital case.” While acknowledging authority to the contrary, Buckner nevertheless contends that the point is subject to debate. According to Buckner, Herrera does not completely foreclose free-standing claims of actual innocence. We need not address the issue here, however. As the Supreme Court has suggested, and Buckner recognizes, if free-standing actual innocence claims were cognizable on federal habeas review, “the threshold showing for such an assumed right would necessarily be extraordinarily high.” Herrera, 506 U.S. at 417, 113 S.Ct. 853. On the facts before us, Buckner has failed to meet even the presumptively less stringent standard of proof by which gateway innocence claims are measured. B. Buckner’s new evidence does not establish his actual innocence of first-degree murder. Petitioners who wish to use a claim of actual innocence as a gateway to raising an otherwise defaulted constitutional claim must demonstrate by a preponderance of the evidence that a reason able juror could not have convicted the petitioner in light of the new evidence. See Schlup, 513 U.S. at 327, 115 S.Ct. 851. The jury found Buckner guilty of first-degree murder under three separate theories, including felony murder. As the district court recognized, Buckner’s “evidence speaks" }, { "docid": "11382782", "title": "", "text": "that the conviction and sentence violate his rights under the Eighth Amendment. Dansby says the new evidence — including documents allegedly withheld by the State and a statement in which prosecution witness McDuffie purportedly recants his trial testimony — • would allow him to impeach McDuffie’s credibility and establish that Dansby acted in lawful self-defense when he killed Brenda and Kimble. The Supreme Court has not decided whether a persuasive demonstration of actual innocence after trial would render unconstitutional a conviction and sentence that is otherwise free of constitutional error. See House v. Bell, 547 U.S. 518, 554-55, 126 S.Ct. 2064, 165 L.Ed.2d 1 (2006). The Court has established, however, that the threshold for any such claim, if it were recognized, would be “extraordinarily high.” Herrera v. Collins, 506 U.S. 390, 417, 113 S.Ct. 853, 122 L.Ed.2d 203 (1993). The threshold, if it exists, would require “more convincing proof’ than the “gateway” standard that allows for consideration of otherwise defaulted constitutional claims upon a showing of actual innocence. House, 547 U.S. at 555,126 S.Ct. 2064; see Schlup v. Delo, 513 U.S. 298, 315, 115 S.Ct. 851, 130 L.Ed.2d 808 (1995). Thus, on a freestanding claim of actual innocence, it is not sufficient that a petitioner shows even that it is “more likely than not that no reasonable juror would have found petitioner guilty beyond a reasonable doubt.” Id. at 327, 115 S.Ct. 851. The “extraordinarily high” threshold, if recognized, would be even higher. House, 547 U.S. at 555, 126 S.Ct. 2064. In its order denying relief, the district court treated this claim as a challenge to the sufficiency of the evidence. When Dansby argued in a motion to alter or amend the judgment that the court misconstrued his claim, the court explained that if it had reached a freestanding actual innocence claim on the merits, then the claim would have failed. The court reasoned that the only evidence proffered in support of actual innocence was impeachment evidence regarding prosecution witness McDuffie, and that a jury could have believed McDuffie even with the new evidence. The court also said that the" }, { "docid": "14970264", "title": "", "text": "court assumes that a freestanding innocence claim is cognizable. Finding that a freestanding innocence claim is a basis for setting aside a conviction requires answering the question of what quantum of proof of innocence is needed to prevail on such a claim. The Court in Herrera found that “the threshold showing” for a freestanding claim of innocence “would necessarily be extraordinarily high.” Herrera, 506 U.S. at 417, 113 S.Ct. 853 (emphasis added). It noted in House that “at the least ... Herrera requires more convincing proof of innocence than” the Schlup standard which requires a showing that it is “more likely than not [that] any reasonable juror would have reasonable doubt.” House, 547 U.S. at 538, 554-55, 126 S.Ct. 2064. At the appellate level, only the Court of Appeals for the Ninth Circuit has articulated a standard for determining whether a petition merits relief based solely upon innocence, holding that the petitioner “must go beyond demonstrating doubt about his guilt, and must affirmatively prove that he is probably innocent.” See Carriger, 132 F.3d at 476. At a minimum, as House suggests, a party asserting a freestanding innocence claim has the burden of meeting the Schlup standard that it is “more likely than not [that] any reasonable juror would have reasonable doubt.” House, 547 U.S. at 554-55, 126 S.Ct. 2064. It is likely that the burden will ultimately be set higher than the Schlup standard and may resemble the “shock the conscience” threshold sometimes used to assess substantive due process claims. Cf. Rochin v. California, 342 U.S. 165, 72 S.Ct. 205, 96 L.Ed. 183 (1952). Strict compliance at trial with constitutional procedural requirements cannot be the only measure for freeing a clearly innocent person from prison. Basic American notions of substantive due process cannot tolerate such an injustice. Submitting those who can prove their innocence through highly reliable evidence to continued criminal punishment following an otherwise constitutional trial is “brutal and ... offensive to human dignity.” Chavez v. Martinez, 538 U.S. 760, 774, 123 S.Ct. 1994, 155 L.Ed.2d 984 (2003) (quoting Rochin, 342 U.S. at 172, 72 S.Ct. 205). What once" }, { "docid": "871274", "title": "", "text": "the discovery. The district court evaluated Tabb’s request and concluded that he had “made a colorable claim showing that the underlying facts, if proven, constitute a constitutional violation as to his allegations of a tainted lineup and the destruction of notes, insofar as those notes evidence an allegedly tainted lineup.” The court’s grant of discovery was sensible and limited to these issues, and the court denied all other discovery requests. The district court did not abuse its discretion. The second preliminary issue is Tabb’s freestanding claim of actual innocence. “Claims of actual innocence based on newly discovered evidence have never been held to state a ground for federal habeas relief absent an independent constitutional violation occurring in the underlying state criminal proceeding.” Herrera v. Collins, 506 U.S. 390, 390-91, 400, 113 S.Ct. 853, 122 L.Ed.2d 203 (1993). Whether the constitutional guarantee of due process supports independent claims of actual innocence without any other constitutional violation remains open to debate. See District Attorney’s Office v. Osborne, 557 U.S. 52, 71, 129 S.Ct. 2308, 174 L.Ed.2d 38 (2009) (question remains open); House v. Bell, 547 U.S. 518, 554-55, 126 S.Ct. 2064, 165 L.Ed.2d 1 (2006) (same); In re Davis, 557 U.S. 952, 130 S.Ct. 1, 174 L.Ed.2d 614 (2009) (mem.) (Stevens, J., concurring) (same); Bradford v. Brown, 831 F.3d 902, 917 n.7 (7th Cir. 2016) (Hamilton, J., dissenting) (same). We acknowledge that it is possible that Tabb, despite his conviction, is actually innocent of shooting Salvador Gomez. The case against Tabb depended entirely on the accuracy of Mr. Gomez’s identification. Such identifications of strangers in quick, high-stress encounters are often mistaken, and some other witnesses’ accounts support Tabb’s claim of innocence. If the federal courts will recognize freestanding constitutional claims of actual innocence, however, it is clear that evidence of innocence will need to meet an “extraordinarily high” threshold. Herrera, 506 U.S. at 392, 417, 113 S.Ct. 853. Tabb’s evidence is not strong enough for this case to break that new constitutional ground. He has called his conviction into doubt, but he has not offered objective and highly reliable evidence of actual" }, { "docid": "8435067", "title": "", "text": "“not itself a constitutional claim, but instead a gateway through which a habeas petitioner must pass to have his otherwise barred constitutional claim considered on the merits.” Id. (quoting Herrera, 506 U.S. at 404,113 S.Ct. 853). As mentioned above, the Supreme Court recognizes a difference between Schlup/ House claims and claims under subpara-graph (B)(ii). As it said in House, rejecting an argument that AEDPA superseded the Schlup standard, § 2244(b) (2) (B) (ii) does not “address[ ] the type of petition at issue here — a first federal habeas petition seeking consideration of defaulted claims based on a showing of actual innocence. Thus, the standard of review in these provisions is inapplicable.” 547 U.S. at 539, 126 S.Ct. 2064. In short, Schlup and House provide little guidance here since they dealt with proeedurally defaulted ha-beas claims, which are evaluated under a different standard than successive habeas petitions. See 513 U.S. at 306, 115 S.Ct. 851. As for what to do with truly “new” evidence of actual innocence — e.g., evidence that is not linked to constitutional error at trial — the Supreme Court’s original jurisdiction provides an answer. Even if a freestanding Herrera claim were recognized but barred by § 2244(b)(2)(B)(n), another path remains. For example, in In re Davis, 565 F.3d 810, 823 (11th Cir.2009) (Davis I), the Eleventh Circuit held that a freestanding innocence claim under the Supreme Court’s decision in Herrera cannot be brought in a successive petition governed by § 2244(b)(2)(B)(ii). See 565 F.3d at 823-24; see also Herrera, 506 U.S. at 400-01, 113 S.Ct. 853 (“[Fjederal habeas courts sit to ensure that individuals are not imprisoned in violation of the Constitution — not to correct errors of fact.... Federal courts are not forums in which to relitigate state trials.”) (internal quotations and citations omitted). Thus, the court concluded, as we do, that a successive petitioner’s claim of innocence must be tethered to a claim of constitutional error in order for the subparagraph (B)(ii) standard to be met. See id. at 823 (“ § 2244(b)(2)(B)(ii) requires both clear and convincing evidence of actual innocence ... as" }, { "docid": "22761447", "title": "", "text": "extraordinarily high,” the Court explained, and petitioner’s evidence there fell “far short of that which would have to be made in order to trigger the sort of constitutional claim which we have assumed, arguendo, to exist.” Id., at 417, 418-419; see also id., at 427 (O’Connor, J., concurring) (noting that because “ [petitioner has failed to make a persuasive showing of actual innocence,” “the Court has no reason to pass on, and appropriately reserves, the question whether federal courts may entertain convincing claims of actual innocence”). House urges the Court to answer the question left open in Herrera and hold not only that free standing innocence claims are possible but also that he has established one. We decline to resolve this issue. We conclude here, much as in Herrera, that whatever burden a hypothetical freestanding innocence claim would require, this petitioner has not satisfied it. To be sure, House has cast considerable doubt on his guilt — doubt sufficient to satisfy Schlup’s gateway standard for obtaining federal review despite a state procedural default. In Herrera, however, the Court described the threshold for any hypothetical freestanding innocence claim as “extraordinarily high.” 506 U. S., at 417. The sequence of the Court’s decisions in Herrera and Schlup — first leaving unresolved the status of freestanding claims and then establishing the gateway standard — implies at the least that Herrera requires more convincing proof of innocence than Schlup. It follows, given the closeness of the Schlup question here, that House’s showing falls short of the threshold implied in Herrera. * * * House has satisfied the gateway standard set forth in Schlup and may proceed on remand with procedurally defaulted constitutional claims. The judgment of the Court of Appeals is reversed, and the case is remanded for further proceedings consistent with this opinion. It is so ordered. Justice Alito took no part in the consideration or decision of this case. Chief Justice Roberts, with whom Justice Scalia and Justice Thomas join, concurring in the judgment in part and dissenting in part. To overcome the procedural hurdle that Paul House created by failing to" }, { "docid": "20529772", "title": "", "text": "a freestanding actual innocence claim would exist in the capital context). We need not resolve this difficult question today, however, because, even assuming that such a free standing claim of actual innocence in a non-capital case is cognizable, we conclude that Jones has not made a sufficient showing to merit relief. The standard for establishing a freestanding claim of actual innocence is “ ‘extraordinarily high’ and ... the showing [for a successful claim] would have to be ‘truly persuasive.’ ” Carriger v. Stewart, 132 F.3d 463, 476 (9th Cir.1997) (quoting Herrera, 506 U.S. at 417, 113 S.Ct. 853). We have held that, at a minimum, the petitioner must “go beyond demonstrating doubt about his guilt, and must affirmatively prove that he is probably innocent.” Id. (citing Herrera, 506 U.S. at 442-44, 113 S.Ct. 853 (Blackmun, J., dissenting)). While we have not articulated the precise showing required, we have discussed the standard for a freestanding actual innocence claim by reference to the Schlup “gateway” showing, which permits a petitioner to proceed on a procedurally barred claim by showing actual innocence. See, e.g., House, 547 U.S. at 554-55, 126 S.Ct. 2064; Carriger, 132 F.3d at 477. In order to pass through the Schlup actual innocence gateway, a petitioner must demonstrate that “in light of new evidence, ‘it is more likely than not that no reasonable juror would have found [the] petitioner guilty beyond a reasonable doubt.’ ” House, 547 U.S. at 537, 126 S.Ct. 2064 (quoting Schlup, 513 U.S. at 327, 115 S.Ct. 851). This new evidence must be reliable, and the reviewing court “may consider how the timing of the submission and the likely credibility of the affiants bear on the probable reliability of that evidence.” Schlup, 513 U.S. at 332, 115 S.Ct. 851. The federal habeas court “must consider all the evidence, old and new, incriminating and exculpatory, without regard to whether it would necessarily be admitted under rules of admissibility that would govern at trial.” House, 547 U.S. at 538, 126 S.Ct. 2064 (internal quotation marks and citation omitted). “Based on this total record, the court must make ‘a" }, { "docid": "20529770", "title": "", "text": "with the de novo review applied in cases like House v. Bell, 547 U.S. 518, 539-40, 126 S.Ct. 2064, 165 L.Ed.2d 1 (2006), and Larsen v. Soto, 742 F.3d 1083, 1092 n. 6 (9th Cir.2013). As the Supreme Court has explained, an actual innocence finding “requires a holistic judgment about ‘all the evidence’ and its likely effect on reasonable jurors applying the reasonable-doubt standard.” House, 547 U.S. at 539, 126 S.Ct. 2064 (quoting Schlup v. Delo, 513 U.S. 298, 328, 115 S.Ct. 851, 130 L.Ed.2d 808 (1995)). “[T]he inquiry does not turn on discrete findings regarding disputed points of fact, and ‘[i]t is not the district court’s independent judgment as to whether reasonable doubt exists that the standard addresses.” Id. at 539-40, 126 S.Ct. 2064 (quoting Schlup, 513 U.S. at 329, 115 S.Ct. 851 (emendations in original)). As in Stewart, “[w]e need not determine which standard is correct in this case ... because under either standard [Jones] has failed to establish” a freestanding claim of actual innocence. 2014 WL 1707033, at *7. We therefore choose to review de novo the district court’s conclusion that Jones is actually innocent, based on our holistic assessment of the evidence adduced at the hearings before the district court and at trial and the likely effect all this evidence would have on reasonable jurors in order to clarify how district courts should evaluate actual innocence claims. III. A. We have not resolved whether a freestanding actual innocence claim is cognizable in a federal habeas corpus proceeding in the non-capital context, although we have assumed that such a claim is viable. See Osborne v. Dist. Attorney’s Office for the Third Judicial Dish, 521 F.3d 1118, 1130 (9th Cir.2008), rev’d on other grounds, 557 U.S. 52, 129 S.Ct. 2308, 174 L.Ed.2d 38 (2009); see also McQuiggin v. Perkins, — U.S. -, 133 S.Ct. 1924, 1931, 185 L.Ed.2d 1019 (2013) (noting that it is, as yet, unresolved whether a freestanding actual innocence claim is cognizable in a federal habeas proceeding); Herrera v. Collins, 506 U.S. 390, 417, 113 S.Ct. 853, 122 L.Ed.2d 203 (1993) (acknowledging the possibility that" }, { "docid": "14970248", "title": "", "text": "Bell, 547 U.S. 518, 126 S.Ct. 2064, 165 L.Ed.2d 1 (2006), the Supreme Court considered a habeas challenge to a state capital conviction which asserted innocence both as a “gateway” to reaching constitutional claims forfeited under state law and as a substantive basis for habeas relief. As to the gateway claim, the Court reaffirmed its earlier holding in Schlup v. Delo, 513 U.S. 298, 115 S.Ct. 851, 130 L.Ed.2d 808 (1995), that “prisoners asserting innocence as a gateway to defaulted claims must establish that, in light of new evidence, ‘it is more likely than not that no reasonable juror would have found petitioner guilty beyond a reasonable doubt.’ ” House, 547 U.S. at 536-37, 126 S.Ct. 2064 (quoting Schlup, 513 U.S. at 327, 115 S.Ct. 851). While emphasizing that the Schlup standard “permits review only in the extraordinary case,” id. at 538, 126 S.Ct. 2064 (internal quotation marks omitted), the Court cautioned that it “does not require absolute certainty about the petitioner’s guilt or innocence.” Id. On the freestanding actual innocence claim, as it did in Herrera, the Court in House “decline[d] to resolve the issue” of whether such a claim is cognizable, finding only that, “whatever burden a hypothetical freestanding innocence claim would re quire, this petitioner has not satisfied it.” Id. at 555, 126 S.Ct. 2064. Despite its reluctance to recognize innocence as a ground for habeas relief, the Court nonetheless hinted that a successful innocence claim would, “at the least ... require[ ] moré convincing proof of innocence than” what is required on a gateway claim. Id. at 555, 126 S.Ct. 2064. Whether a freestanding claim of innocence may be adjudicated, either in capital or noncapital cases, remains “an open question.” See Dist. Attorney’s Office v. Osborne, 557 U.S. 52, 71, 129 S.Ct. 2308, 174 L.Ed.2d 38 (2009) (Roberts, C.J.) (assuming, without deciding, that a freestanding innocence claim exists in a non-capital case); McQuiggin v. Perkins, — U.S. -, 133 S.Ct. 1924, 1931, 185 L.Ed.2d 1019 (2013) (“We have not resolved whether a prisoner may be entitled to habeas relief based on a freestanding claim of actual" }, { "docid": "21992943", "title": "", "text": "52, 71-72, 129 S.Ct. 2308, 174 L.Ed.2d 38 (2009). That does not mean, however, that innocence is irrelevant: a prisoner’s proof of actual innocence may provide a gateway for federal habeas review of procedurally defaulted or untimely claims of constitutional error. See McQuiggin v. Perkins, 569 U.S. 383, 133 S.Ct. 1924, 1931-32, 185 L.Ed.2d 1019 (2013). Bruce’s actual innocence claim does not come to us as a gateway issue. He is not seeking to demonstrate his innocence so as to proceed with some otherwise defaulted or untimely claim, but to obtain full habeas relief. If Bruce were indeed asserting a freestanding actual innocence claim, “the threshold showing for such an assumed right would necessarily be extraordinarily high.” Herrera, 506 U.S. at 417, 113 S.Ct. 853. We need not resolve whether Bruce’s actual innocence claim is a freestanding one. This Court’s precedent instructs that actual innocence claims under § 2241 are to be initially tested against the more relaxed (but still stringent) actual innocence gateway standard. Tyler, 732 F.3d at 246, To succeed under that standard, a petitioner must “demonstrate that, in light of all the evidence, it is more likely than not that no reasonable juror would have convicted him.” Bousley, 523 U.S. at 623, 118 S.Ct. 1604 (internal quotation marks omitted). In order “to balance the societal interests in finality ... and conservation of scarce judicial resources with the individual interest in justice that arises in the extraordinary case,” Schlup v. Delo, 513 U.S. 298, 324, 115 S.Ct. 851, 130 L.Ed.2d 808 (1995), the gateway standard is purposefully “demanding” and was formulated to ensure that a successful petitioner’s case is “truly extraordinary.” House, 547 U.S. at 537-38, 126 S.Ct. 2064 (internal quotation marks omitted); see also McQuiggin, 133 S.Ct. at 1928 (cautioning that “tenable actual-innocence gateway pleas are rare”). A petitioner can meet this standard “by demonstrating an intervening change in law that rendered his conduct non-criminal.” Tyler, 732 F.3d at 246. Failure to meet the gateway standard is sufficient to reject any hypothetical freestanding actual innocence claim. Albrecht v. Horn, 485 F.3d 103, 126 (3d Cir. 2007); see" }, { "docid": "11382859", "title": "", "text": "asserted actual innocence should provide a “gateway” to avoid procedural default and to allow consideration of his defaulted claims on the merits. See Schlup v. Delo, 513 U.S. 298, 115 S.Ct. 851, 130 L.Ed.2d 808 (1995). We concluded above, in Section II.A, that Dansby’s evidence is insufficient to meet the high standard that would be required to support a freestanding claim of actual innocence. Although the standard of proof for a “gateway” claim of actual innocence is slightly lower, Dansby still must “demonstrate that more likely than not, in light of the new evidence, no reasonable juror would find him guilty beyond a reasonable doubt.” House v. Bell, 547 U.S. 518, 538, 126 S.Ct. 2064, 165 L.Ed.2d 1 (2006). This standard “is demanding and permits review only in the ‘extraordinary’ case.” Id. (quotation omitted). For essentially the same reasons that Dansby cannot meet the Herrera standard for a freestanding claim of actual innocence, he is not entitled to a hearing on his claim of actual innocence under Schlup. For the foregoing reasons, we vacate the dismissal of Claim II and Claim III in Dansby’s second amended petition and remand the case for further consideration of those claims. We affirm the dismissal of the remaining claims on appeal. . In Clayton v. Roper, 515 F.3d 784 (8th Cir. 2008), a panel of this court said that because the habeas petitioner could not point to an independent constitutional violation in his state criminal proceeding, the federal court was \"without jurisdiction” to consider his claim of actual innocence. We are unsure why the Clayton panel thought it lacked jurisdiction, so we follow the approach of Herrera, 506 U.S. at 417-19, 113 S.Ct. 853, in addressing Dansby’s claim. . It is unnecessary to consider the district court’s alternative ruling that any Doyle error was harmless, but we note that Hill’s disputed answer is cumulative of Officer Stegall’s testimony earlier in the trial that Dansby “invoked his rights and stated that he didn't want to say anything else without a lawyer.” Trial R. 676. . Dansby has not challenged the qualifications of attorney Schay, who" }, { "docid": "16810855", "title": "", "text": "Br. at 6 (conceding McQuiggin “definitively established the availability of an innocence exception to the statute of limitations”); McQuiggin, 133 S.Ct. at 1928. McQuiggin thus eliminated petitioner’s tight-time-line predicament, and he no longer has good cause within the meaning of Rhines for his failure to first exhaust his claims in state court before seeking federal court action. McQuiggin’s factoring of diligence into the credibility of a petitioner’s actual innocence claim — whether “it is more likely than not that no reasonable juror would have convicted him in the light of the new evidence,” 133 S.Ct. at 1935 (quoting Schlup, 513 U.S. at 327, 115 S.Ct. 851)— creates no higher burden at the equitable exception stage than the petitioner would face in proving actual innocence as either a gateway, House v. Bell, 547 U.S. 518, 538, 126 S.Ct. 2064, 165 L.Ed.2d 1 (2006) (“A petitioner’s burden at the gateway stage is to demonstrate that more likely than not, in light of the new evidence, no reasonable juror would find him guilty beyond a reasonable doubt....”), or a freestanding claim, id. at 555, 126 S.Ct. 2064 (noting a hypothetical freestanding innocence claim requires “more convincing proof of innocence than [a gateway claim]”). A stay cannot shield petitioner from the consideration of diligence with respect to the reliability of his actual innocence claim, whether a gateway or freestanding claim. See Schlup, 513 U.S. at 332, 115 S.Ct. 851 (“[C]ourt[s] may consider how the timing of the submission and the likely credibility of the affiants bear on the probable reliability of ... evidence [of actual innocence].”); Herrera, 506 U.S. at 421-23, 113 S.Ct. 853 (considering “11th hour” affidavits produced ten years after conviction in deciding merits of actual innocence claim). Petitioner also contends the potential application of the doctrine of laches in state court and the ineffective assistance of post-trial counsel are other sources for good cause. However, if a state court determines petitioner is barred by the doctrine of laches, the McQuiggin exception will still serve to alleviate concern regarding timeliness of the federal petition. With respect to the possibility that a lach-es" }, { "docid": "20529771", "title": "", "text": "to review de novo the district court’s conclusion that Jones is actually innocent, based on our holistic assessment of the evidence adduced at the hearings before the district court and at trial and the likely effect all this evidence would have on reasonable jurors in order to clarify how district courts should evaluate actual innocence claims. III. A. We have not resolved whether a freestanding actual innocence claim is cognizable in a federal habeas corpus proceeding in the non-capital context, although we have assumed that such a claim is viable. See Osborne v. Dist. Attorney’s Office for the Third Judicial Dish, 521 F.3d 1118, 1130 (9th Cir.2008), rev’d on other grounds, 557 U.S. 52, 129 S.Ct. 2308, 174 L.Ed.2d 38 (2009); see also McQuiggin v. Perkins, — U.S. -, 133 S.Ct. 1924, 1931, 185 L.Ed.2d 1019 (2013) (noting that it is, as yet, unresolved whether a freestanding actual innocence claim is cognizable in a federal habeas proceeding); Herrera v. Collins, 506 U.S. 390, 417, 113 S.Ct. 853, 122 L.Ed.2d 203 (1993) (acknowledging the possibility that a freestanding actual innocence claim would exist in the capital context). We need not resolve this difficult question today, however, because, even assuming that such a free standing claim of actual innocence in a non-capital case is cognizable, we conclude that Jones has not made a sufficient showing to merit relief. The standard for establishing a freestanding claim of actual innocence is “ ‘extraordinarily high’ and ... the showing [for a successful claim] would have to be ‘truly persuasive.’ ” Carriger v. Stewart, 132 F.3d 463, 476 (9th Cir.1997) (quoting Herrera, 506 U.S. at 417, 113 S.Ct. 853). We have held that, at a minimum, the petitioner must “go beyond demonstrating doubt about his guilt, and must affirmatively prove that he is probably innocent.” Id. (citing Herrera, 506 U.S. at 442-44, 113 S.Ct. 853 (Blackmun, J., dissenting)). While we have not articulated the precise showing required, we have discussed the standard for a freestanding actual innocence claim by reference to the Schlup “gateway” showing, which permits a petitioner to proceed on a procedurally barred claim" }, { "docid": "14970263", "title": "", "text": "A.3d 872 (2011) (acknowledging that “ ‘[m]isidentification is widely recognized as the single greatest cause of wrongful convictions in this country’ ” (quoting State v. Delgado, 188 N.J. 48, 60-61 & n. 6, 902 A.2d 888 (2006))); Brandon L. Garrett, The Substance of False Confessions, 62 Stan. L.Rev. 1051, 1060 (2010) (“Over the past two decades, scholars, social scientists, and writers have identified at least 250 cases in which they determined that people likely falsely confessed to crimes. New cases are regularly identified.”). The advent of DNA testing — to consider just one technological example — may provide definitive knowledge on whether an individual, imprisoned after a lawful trial, is actually innocent and should be released. See e.g., Barry Scheck, Professional and Conviction Integrity Programs: Why We Need Them, Why They Will Work, and Models for Creating Them, 31 Cardozo L.Rev. 2215, 2251 (2010) (“There seems little doubt that if the appropriate case gets there, the Supreme Court will confirm that proof of actual innocence does state a constitutional claim.”). Given this powerful trend, this court assumes that a freestanding innocence claim is cognizable. Finding that a freestanding innocence claim is a basis for setting aside a conviction requires answering the question of what quantum of proof of innocence is needed to prevail on such a claim. The Court in Herrera found that “the threshold showing” for a freestanding claim of innocence “would necessarily be extraordinarily high.” Herrera, 506 U.S. at 417, 113 S.Ct. 853 (emphasis added). It noted in House that “at the least ... Herrera requires more convincing proof of innocence than” the Schlup standard which requires a showing that it is “more likely than not [that] any reasonable juror would have reasonable doubt.” House, 547 U.S. at 538, 554-55, 126 S.Ct. 2064. At the appellate level, only the Court of Appeals for the Ninth Circuit has articulated a standard for determining whether a petition merits relief based solely upon innocence, holding that the petitioner “must go beyond demonstrating doubt about his guilt, and must affirmatively prove that he is probably innocent.” See Carriger, 132 F.3d at 476." }, { "docid": "22761446", "title": "", "text": "substantial evidence pointing to a different suspect. Accordingly, and although the issue is close, we conclude that this is the rare case where — had the jury heard all the conflicting testimony — it is more likely than not that no reasonable juror viewing the record as a whole would lack reasonable doubt. V In addition to his gateway claim under Schlup, House argues that he has shown freestanding innocence and that as a result his imprisonment and planned execution are unconstitutional. In Herrera, decided three years before Schlup, the Court assumed without deciding that “in a capital case a truly persuasive demonstration of ‘actual innocence’ made after trial would render the execution of a defendant unconstitutional, and warrant federal habeas relief if there were no state avenue open to process such a claim.” 506 U. S., at 417; see also id., at 419 (O’Connor, J., concurring) (“I cannot disagree with the fundamental legal principle that executing the innocent is inconsistent with the Constitution”). “[T]he threshold showing for such an assumed right would necessarily be extraordinarily high,” the Court explained, and petitioner’s evidence there fell “far short of that which would have to be made in order to trigger the sort of constitutional claim which we have assumed, arguendo, to exist.” Id., at 417, 418-419; see also id., at 427 (O’Connor, J., concurring) (noting that because “ [petitioner has failed to make a persuasive showing of actual innocence,” “the Court has no reason to pass on, and appropriately reserves, the question whether federal courts may entertain convincing claims of actual innocence”). House urges the Court to answer the question left open in Herrera and hold not only that free standing innocence claims are possible but also that he has established one. We decline to resolve this issue. We conclude here, much as in Herrera, that whatever burden a hypothetical freestanding innocence claim would require, this petitioner has not satisfied it. To be sure, House has cast considerable doubt on his guilt — doubt sufficient to satisfy Schlup’s gateway standard for obtaining federal review despite a state procedural default. In Herrera," } ]

[ { "docid": "22821601", "title": "", "text": "statute, Iil.Rev.Stat. ch. 38, § 1003-3-5(c) (1979), and concluded that the statute provides an inmate with a legitimate expectation of parole which is entitled to constitutional protection. See United States ex rel. Scott v. Ill. Parole and Pardon Board, 669 F.2d 1185 (7th Cir. 1982). . 18 U.S.C. § 4206(c) provides: (c) The Commission may grant or deny release on parole notwithstanding the guidelines referred to in subsection (a) of this section if it determines there is good cause for so doing: Provided, That the prisoner is furnished written notice stating with particularity the reasons for its determination, including a summary of the information relied upon. . In 1973 the Parole Commission established a national parole policy and adopted parole guidelines to promote what it felt was a more consistent and equitable exercise of its discretion. See 28 C.F.R. § 2.20 (1976). The guidelines indicate the customary range of time to be served before release for various combinations of offense severity and parole prognosis characteristics. Under the guidelines an inmate’s record is examined to determine his “salient factor score.” This figure was designed statistically to predict the potential risk of parole violation and consists of seven weighted personal characteristics such as prior convictions and employment history. Next, the inmate’s offensive behavior is classified on the “offense severity scale” in one of seven categories from “Low” to “Greatest II.” This rating reflects the Parole Commission’s independent, subjective evaluation of the gravity of the inmate’s criminal behavior. Together, the salient factor score and the offense severity rating are used in conjunction with a table to determine a suggested time range during which the inmate should remain incarcerated. . Neb.Rev.Stat. § 83-1, 114(a) at the time provided: Whenever the Board of Parole considers the release of a committed offender who is eligible for release on parole, it shall order his release unless it is of the opinion that his release should be deferred because: (a) There is substantial risk that he will not conform to the conditions of parole; (b) His release would deprecate the seriousness of his crime or promote disrespect for" } ]

[ { "docid": "2767013", "title": "", "text": "offense behavior would have been classified as “very high” severity, Category 5, and that he would have had a salient factor score of 5. This combination would have yielded a customary range of 45-55 months. Petitioner derives these assumptions from an analysis of the criteria as used under the 1973 Guidelines for calculating offense severity and salient factor score. Inglese argues therefore that he was disadvantaged by the use of the 1983 rather than the 1973 Guidelines. Were we persuaded that the parole guidelines were laws, and thus subject to the proscriptions of the ex post facto clause, we would be required to analyze carefully petitioner’s claims to see if indeed the 1983 Guidelines are more onerous as applied to him than the 1973 Guidelines would have been. We need not, however, put ourselves in the shoes of the 1973 Parole Examiners in this case, for we hold that the parole guidelines are not “laws,” and there fore can be applied ex post facto without violating petitioner’s constitutional rights. Federal law establishes the United States Parole Commission, sets out the statutory framework for parole decisions, 18 U.S.C. §§ 4201-4218, and confers on the Commission the power to make guidelines. 18 U.S.C. § 4203; 28 C.F.R. §§ 2.01-2.63 (1985). A reading of the Commission’s Parole Guidelines as a whole establishes that they were meant to be applied in a discretionary fashion: “[t]he granting of parole to an eligible prisoner rests in the discretion of the United States Parole Commission.” 28 C.F.R. § 2.18 (1985). The statement of general policy as to the guidelines indicates that their purpose was “[t]o establish a national paroling policy, promote a more consistent exercise of discretion, and enable fairer and more equitable decision-making without relinquishing individual case consideration.” 28 C.F.R. § 2.20(a) (1985). The Commission “may grant or deny release on parole notwithstanding the guidelines ... if it determines there is good cause for so doing.” 18 U.S.C. § 4206(c). The Commission’s policy statement specifically provides that the guidelines are only a “customary range” for time served, 28 C.F.R. § 2.20(b), and that these ranges are" }, { "docid": "23702768", "title": "", "text": "did not constitute “new” information — since we reject them substantially for the reasons stated in Judge Eginton’s opinion. Iuteri v. Nardoza, 560 F.Supp. at 748-54. We also affirm the district court on the third ground — that the Commission did not act irrationally in going above the guidelines in setting Iuteri’s release date — but we write briefly on the issue to emphasize that the Commission operates with considerable discretion in this area. II. DISCUSSION As we have noted previously, see, e.g., Bialkin v. Baer, 719 F.2d 590, 592 (2d Cir.1983), Congress has vested the sole power to grant or deny parole in the sound discretion of the Commission. See Billiteri v. United States Board of Parole, 541 F.2d 938, 944 (2d Cir.1976). Congress has directed the [CJommission to establish guidelines for exercising its powers____ Under its guidelines, the [CJommission determines for each prisoner, the severity of his offense behavior (offense characteristics) and classifies it in any of six categories ranging from “low” to “Greatest II.” The [CJommission also determines a prisoner’s parole prognosis (offender characteristics) and calculates his “salient factor score” on a scale from 0 to 10. For various combinations of offense severities and salient factor scores the guidelines indicate a range of “customary range of time to be served before release” on parole. 28 C.F.R. § 2.20(b)(1982). Bialkin v. Baer, 719 F.2d at 592. Although the Commission generally relies on the guidelines in determining the release date of a prisoner, see 18 U.S.C. § 4206(a) (1982), it is not limited exclusively by them. Campbell v. United States Parole Commission, 704 F.2d 106, 111 (3d Cir.1983). Congress expressly provided in section 4206(c) that the Commission can go beyond the guidelines if it determines there is good cause for doing so. 18 U.S.C. § 4206(c) (1982); Lieberman v. Gunnell, 726 F.2d 75, 77 (2d Cir.1984). The legislative history suggests that the definition of good cause “can not be a precise one, be cause it must be broad enough to cover many circumstances.” H.R.Rep. No. 838, 94th Cong., 2d Sess. 27, reprinted in 1976 U.S.Code Cong. & Ad.News 335," }, { "docid": "725984", "title": "", "text": "consequences of the crime. During the appeals process the petitioner was able to challenge this finding and introduce any additional factors he felt were relevant to the assessment of the severity of his offense. Under these circumstances the notice was sufficiently specific. See Fronczak v. Warden, 553 F.2d 1219 (10th Cir. 1977); United States v. Wolff, 525 F.2d 797 (7th Cir. 1975), cert. denied, 425 U.S. 914, 96 S.Ct. 1511, 47 L.Ed.2d 764 (1976). 4. 18 U.S.C. § 4203(a)(1) empowers the United States Parole Commission to “promulgate rules and regulations establishing guidelines” for the granting or denial of parole. The current guidelines of the commission rely upon two factors: the severity rating of the offense and the “salient factor” score of the prisoner. See 28 C.F.R. § 2.20 (1977). In the present case the offense was rated as “very high severity” because of the monetary losses accompanying the crime. The petitioner’s salient factor score (computed by assigning points to such factors as the prisoner’s age, previous offenses, employment record, etc.) was 11 (“very good”). The “customary total time to be served before release” indicated in the guidelines for the petitioner is 26-36 months. The guidelines affect only the prisoner’s chances for parole and have no impact upon the length of the two year sentence imposed upon the petitioner by the trial judge. Also, the guidelines are merely advisory: where warranted a decision outside of the guidelines can be rendered. 28 C.F.R. § 2.20(c). Unless the parole commission’s actions violate the applicable statutes, result in constitutional infractions, or are patently arbitrary and capricious, the merits of the actions are not reviewable by the courts. Dye v. Parole Comm’n, 558 F.2d 1376 (10th Cir. 1977); Billiteri v. Parole Bd., 541 F.2d 938 (2d Cir. 1976). The guidelines described are clearly within the commission’s statutory authority. See 18 U.S.C. § 4203(a)(1). The granting or denial of parole are matters for the sound discretion of the commission and the lawful exercise of that discretion does not impinge upon any constitutional right. Carson v. Dep’t of Parole, 292 F.2d 468 (10th Cir. 1961). Finally, the" }, { "docid": "15397993", "title": "", "text": "setting a parole date five months above the range indicated by the applicable guideline. When setting the date of expected parole, the commission may depart from its guidelines for “good cause”, 18 U.S.C. § 4206(c); 28 C.F.R. § 2.20(c) (1982), a concept that includes any “especially aggravating or mitigating circumstances in a particular case”. 28 C.F.R. § 2.20(d) (1982); see Priore v. Nelson, 626 F.2d 211, 216 (2d Cir.1980). In this case the commission set a release date five months above the guideline’s range because (1) this was Bialkin’s seventh conviction in 15 years involving check or stock fraud; and (2) the new offense occurred less than three months after his release on parole. However,, the district court held that, in reaching this decision, the commission had imposed a double penalty because it had “relied on the same factors in determining petitioner’s Guideline range as it did in deciding to go above the Guidelines.” According to the court, “the Commission presumably considered petitioner’s previous record when it assigned him a salient factor score of ‘3’”. The salient factor calculation, however, incorporated Bialkin’s prior convictions only to the extent of four; his additional three convictions had no effect on Bialkin’s salient factor score of “3”. In Alessi v. Quinlan, 711 F.2d 497 (2d Cir.1983), the parole commission had also fixed a release date beyond the guideline range. At issue was whether all of the aggravating factors relied upon by the parole commission were included in the “Greatest I” severity rating and were therefore unavailable to support a release date beyond the applicable guideline. We held: The aggravating factors cited by the Commission demonstrate that Alessi’s criminal conduct was far more egregious than what was necessary to warrant a “Greatest I” severity rating. It is hardly irrational for the Commission to conclude that Alessi, whose crime involved kilograms of heroin, should be confined longer than a drug dealer who has distributed 51 grams of heroin. 711 F.2d at 500. Similarly, it was not irrational for the commission to conclude that Bialkin, whose record included seven convictions, should be confined longer than a" }, { "docid": "15397992", "title": "", "text": "(December 16, 1982). Although the district court thought that the guidelines “clearly indicate” that possession of stolen traveler’s checks should be classified as “low” severity, the matter is not so clear to us. “Simple” possession of stolen property worth less than $2,000 in value is classified as “low” severity. “Simple” implies without additions or modifications; not combined or compound. Webster’s Third New International Dictionary 2121 (1971). Unlike a car or an appliance, for example, stolen traveler’s checks have no intrinsic value unless negotiated or resold. This characteristic compounds the actual possession of stolen checks so that impliedly and realistically the offense is not “simple” possession, but possession with intent to resell. Therefore, we think it was within the commission’s discretion to classify this offense as “low moderate” by analo gizing it to a securities offense rather than to a simple property offense. See 18 U.S.C. § 4203; 28 C.F.R. § 2.20, General Notes B and C; 28 C.F.R. § 2.21(b)(1) (1982). ■ IV. The district court also held that the commission abused its discretion by setting a parole date five months above the range indicated by the applicable guideline. When setting the date of expected parole, the commission may depart from its guidelines for “good cause”, 18 U.S.C. § 4206(c); 28 C.F.R. § 2.20(c) (1982), a concept that includes any “especially aggravating or mitigating circumstances in a particular case”. 28 C.F.R. § 2.20(d) (1982); see Priore v. Nelson, 626 F.2d 211, 216 (2d Cir.1980). In this case the commission set a release date five months above the guideline’s range because (1) this was Bialkin’s seventh conviction in 15 years involving check or stock fraud; and (2) the new offense occurred less than three months after his release on parole. However,, the district court held that, in reaching this decision, the commission had imposed a double penalty because it had “relied on the same factors in determining petitioner’s Guideline range as it did in deciding to go above the Guidelines.” According to the court, “the Commission presumably considered petitioner’s previous record when it assigned him a salient factor score of ‘3’”." }, { "docid": "23702772", "title": "", "text": "us to proceed upon the basis of his strained and speculative scenario and on this ground to second-guess the Commission’s decision. We decline to do so. In reviewing the Commission’s parole determination, our role is merely to inquire “whether there is a rational basis in the record for the [Commission’s] conclusions embodied in its statement of reasons.” Zannino v. Arnold, 531 F.2d at 691. It would be wholly unwarranted for us to guess or speculate about the length of time Iuteri would have been incarcerated before being paroled under the scenario he urges upon us. Upon the facts before us we cannot determine whether Iuteri would have received the same parole date, a later one, or an earlier one since such a decision would depend, inter alia, upon the circumstances relating to his hypothetical convictions. In rejecting Iuteri’s argument, we simply reaffirm the view of this and other circuits, see, e.g., Bialkin v. Baer, 719 F.2d at 594; Alessi v. Quinlan, 711 F.2d at 500; Campbell v. Parole Commission, 704 F.2d at 112; Stroud v. United States Parole Commission, 668 F.2d 843, 847 (5th Cir.1982), that we will uphold the Commission’s decision to go above the guidelines in setting parole where it is not irrational for the Commission to do so. Herein, the Commission explained to Iuteri that it decided to go above the guidelines because in its view, he was a poorer risk than indicated by his salient factor score. As required by section 4206(c), it specified the information upon which it relied. It found that he had “attac[k]ed a man viciously with a blackjack shattering his nose and also forced a young woman into prostitution.” The Commission rationally concluded, within its discretion, that these incidents indicated “a criminal orientation not generally seen by the Commission in offenders with [Iuteri’s] salient factor score of 10.” In short, the Commission acted within its authority by relying on these aggravating factors to go above the guidelines in setting Iuteri’s parole release date. See Bialkin v. Baer, 719 F.2d at 594; Alessi v. Quinlan, 711 F.2d at 500. III. CONCLUSION For the" }, { "docid": "2767015", "title": "", "text": "“merely guidelines. Where the circumstances warrant, decisions outside the guidelines (either above or below) may be rendered.” 28 C.F.R. § 2.20(c). Decisions outside the guidelines are subject to a stricter standard of review. See 28 C.F.R. §§ 2.24-2.26. The policy statement provides that “mitigating or aggravating circumstances,” or “clinical evaluation of risk” may give cause to override the guidelines. 28 C.F.R. § 2.20(d), (e). Moreover, the range of materials the Commission may consider in making its parole decision is broad, see 18 U.S.C. § 4207, 28 C.F.R. § 2.19(a)-(d), and “[t]he Commission encourages the submission of relevant information concerning an eligible prisoner by interested persons.” 28 C.F.R. § 2.20(b). Finally, the policy statement provides that “[t]he Commission shall review the guidelines, including the salient factor score, periodically and may revise or modify them at any time as deemed appropriate.” 28 C.F.R. § 2.20(g). The statute, the parole regulations, and the policy statements contained therein clearly and repeatedly emphasize the discretionary aspect of the decision-making process of parole, particularly in the use of the guidelines. While a heightened standard of review checks this discretion, the Commission’s inherent ability to exercise discretion is not thereby altered. The power to exercise discretion indicates that the guidelines are merely guides, and not laws: guides may be discarded where circumstances require; laws may not. An application of the 1983 Guidelines to petitioner then, rather than the 1973 Guidelines, does not violate the ex post facto prohibition. Moreover, the 1973 Guidelines reserved the Commission’s right to revise the guidelines, thereby giving petitioner fair warning when he was sentenced that the guidelines under which his parole release date would be determined would be subject to change. See Warren v. United States Parole Commission, 659 F.2d 183, 195-97 (D.C.Cir.1981), cert. denied, 455 U.S. 950, 102 S.Ct. 1454, 71 L.Ed.2d 665 (1982). The principle that parole guidelines are not laws has been approved in a general and summary way by this circuit, see Zeidman v. United States Parole Comm’n, 593 F.2d 806, 807 (7th Cir.1979), and by the majority of other circuits which have considered the question. See, e.g.," }, { "docid": "23702769", "title": "", "text": "(offender characteristics) and calculates his “salient factor score” on a scale from 0 to 10. For various combinations of offense severities and salient factor scores the guidelines indicate a range of “customary range of time to be served before release” on parole. 28 C.F.R. § 2.20(b)(1982). Bialkin v. Baer, 719 F.2d at 592. Although the Commission generally relies on the guidelines in determining the release date of a prisoner, see 18 U.S.C. § 4206(a) (1982), it is not limited exclusively by them. Campbell v. United States Parole Commission, 704 F.2d 106, 111 (3d Cir.1983). Congress expressly provided in section 4206(c) that the Commission can go beyond the guidelines if it determines there is good cause for doing so. 18 U.S.C. § 4206(c) (1982); Lieberman v. Gunnell, 726 F.2d 75, 77 (2d Cir.1984). The legislative history suggests that the definition of good cause “can not be a precise one, be cause it must be broad enough to cover many circumstances.” H.R.Rep. No. 838, 94th Cong., 2d Sess. 27, reprinted in 1976 U.S.Code Cong. & Ad.News 335, 351, 359. Section 2.20(c) of the guidelines itself states in clear language that “[t]hese time ranges are merely guidelines. Where the circumstances warrant, decisions outside of the guidelines (either above or below) may be rendered.” 28 C.F.R. § 2.20(c) (1983). “The appropriate standard for review of the [Cjommission’s decisions is whether there has been an abuse of discretion.” Bialkin v. Baer, 719 F.2d at 593 (citing Solomon v. Elsea, 676 F.2d 282, 290 (7th Cir.1982), and Zannino v. Arnold, 531 F.2d 687, 690-91 (3rd Cir.1976)). Consequently, as a reviewing court, we “may not substitute [our] own judgment for that of the [Commission,” and we will give “[d]eference to the [Cjommission’s interpretation of its own regulations ... unless that interpretation is shown to be unreasonable.” Bialkin v. Baer, 719 F.2d at 593; see Timpani v. Sizer, 732 F.2d 1043, 1047-48 (2d Cir.1984); accord Staege v. United States Parole Commission, 671 F.2d 266, 268 (8th Cir.1982) (courts defer to the Commission’s “interpretation of its own regulations, and that interpretation should not be rejected unless shown to be" }, { "docid": "23702770", "title": "", "text": "351, 359. Section 2.20(c) of the guidelines itself states in clear language that “[t]hese time ranges are merely guidelines. Where the circumstances warrant, decisions outside of the guidelines (either above or below) may be rendered.” 28 C.F.R. § 2.20(c) (1983). “The appropriate standard for review of the [Cjommission’s decisions is whether there has been an abuse of discretion.” Bialkin v. Baer, 719 F.2d at 593 (citing Solomon v. Elsea, 676 F.2d 282, 290 (7th Cir.1982), and Zannino v. Arnold, 531 F.2d 687, 690-91 (3rd Cir.1976)). Consequently, as a reviewing court, we “may not substitute [our] own judgment for that of the [Commission,” and we will give “[d]eference to the [Cjommission’s interpretation of its own regulations ... unless that interpretation is shown to be unreasonable.” Bialkin v. Baer, 719 F.2d at 593; see Timpani v. Sizer, 732 F.2d 1043, 1047-48 (2d Cir.1984); accord Staege v. United States Parole Commission, 671 F.2d 266, 268 (8th Cir.1982) (courts defer to the Commission’s “interpretation of its own regulations, and that interpretation should not be rejected unless shown to be unreasonable”); see also Udall v. Tallman, 380 U.S. 1, 16, 85 S.Ct. 792, 801, 13 L.Ed.2d 616 (1965) (courts show great deference to agency’s “construction of an administrative regulation”). We will uphold the Commission’s decision to go above the guidelines in setting parole where it is not irrational for the Commission to do so. See, e.g., Bialkin v. Baer, 719 F.2d at 594; Alessi v. Quinlan, 711 F.2d 497, 500 (2d Cir.1983). Of course, consistent with section 4206(c), the Commission must summarize the information used and indicate the specific aggravating factors relied upon in going above the guidelines. See 18 U.S.C. § 4206(c) (1982). Iuteri contends that the Commission acted without rational justification by going above the guidelines on the basis of the Satmary and Foote incidents. He argues that even if he had been tried, convicted and sentenced on the charges of assault and prostitution, pursuant to the guidelines he would have received a substantially earlier parole release date than the one he actually received after the Commission reconsidered his case. Iuteri thus invites" }, { "docid": "5922072", "title": "", "text": "for his release. This Court is unable to address the merits of petitioner’s claim since the Notice of Action, itself, is fatally defective. II. The Commission, seeking to quantify objectively the factors involved in the parole determination, has adopted pursuant to 18 U.S.C. § 4203(a) guidelines for the purpose of promoting “a more consistent exercise of discretion, and enabling fairer and more equitable decision making in granting parole.” 28 C.F.R. § 2.20(a). Under the guidelines an evaluation sheet must be prepared in each case for computing a salient factor score. This score serves as an aid in determining the parole prognosis (potential risk of parole violation). 28 C.F.R. § 2.20(e). Pursuant to the guidelines, the Commission then applies this score to petitioner’s severity offense rating to determine the customary parole release date. In the ordinary case, where a decision is reached to apply the guideline period after a finding that no special aggravating or mitigating factors are present, a Notice of Action containing the offense severity rating, salient factor score, period of incarceration, and applicable guideline period followed by the conclusion that a decision out side the guidelines is not warranted would constitute an entirely sufficient notice. See Lupo v. Norton, 371 F.Supp. 156, 162 (D.Conn.1974). Parole within these guidelines is not automatic, however, and the Commission may, upon a showing of good cause, go outside the guidelines. However, in these kinds of cases, the Commission is required to provide the prisoner “with particularity the reasons for its determination, including a summary of the information relied upon.” Further, the prisoner “shall receive a specific explanation of the factors which caused the Commission to reach a determination outside the guidelines.” [Emphasis added] 18 U.S.C. § 4206(c). Judge Newman in Randaccio v. Wilkinson, 415 F.Supp. 612 (D.Conn.1976), stated that the primary purpose of the requirement is to allow the prisoner and.a reviewing court to “determine that the case received individualized consideration, and not simply a pro forma recitation of the pertinent regulation.” Id. at 614. Inasmuch as the Commission in the present case went above the guideline period in denying petitioner parole," }, { "docid": "9954508", "title": "", "text": "sets. 18 U.S.C. § 4206(a) (1976) provides: If an eligible prisoner has substantially observed the rules of the institution or institutions to which he has been confined, and if the Commission, upon consideration of the nature and circumstances of the offense and the history and characteristics of the prisoner, determines: (1) that release would not depreciate the seriousness of his offense or promote disrespect for the law; and (2) that release would not jeopardize the public welfare; subject to the provisions of subsections (b) and (c) of this section, and pursuant to guidelines promulgated by the Commission pursuant to section 4203(a)(1), such prisoner shall be released. Accord 28 C.F.R. § 2.12(d) (1982) (“presumptive parole date shall be contingent upon an affirmative finding by the Commission that the prisoner has a continued record of good conduct”). The guidelines themselves state that “[t]he time ranges specified by the guidelines are established specifically for cases with good institutional adjustment and program progress.” 28 C.F.R. § 2.20(b) (1979); accord id. § 2.20(b) (1982); id. § 2.20(b) (1974). . The parole-guidelines scheme has been the subject of much comment and discussion, see, e.g., Campbell v. United States Parole Comm’n, 704 F.2d 106, 111-12 (3d Cir.1983); Warren v. United States Parole Comm’n, 659 F.2d 183, 189-93 (D.C.Cir.1981), cert. denied, 455 U.S. 950, 102 S.Ct. 1454, 71 L.Ed.2d 665 (1982); Priore v. Nelson, 626 F.2d 211, 213-15 (2d Cir.1980); Geraghty v. United States Parole Comm’n, supra, 579 F.2d at 241-42, 254-63; Project, Parole Release Decisionmaking and the Sentencing Process, 84 Yale L.J. 810, 817-41 (1975); Note, Application of the Federal Parole Guidelines to Certain Prisoners: An Ex Post Facto Violation, 62 B.U.L.Rev. 515, 518-23 (1982), and we will discuss the guidelines further, see infra Part IIIA. Briefly stated: the guidelines constitute a grid on which offense severity is plotted against “offender characteristics,” yielding a “customary range” of imprisonment. The offense-severity “axis” of the 1979 grid is divided into seven categories, ranging from “low” through “Greatest II.” The “offender-characteristics” axis is intended to predict, by means of a “salient-factor score,” “the likelihood that an inmate will succeed on" }, { "docid": "15397988", "title": "", "text": "habeas corpus and ordered Bialkin released from custody. II. Congress vested in the sound discretion of the commission the sole power to grant or deny parole, Billiteri v. U.S. Board of Parole, 541 F.2d 938, 944 (2d Cir.1976), and directed the commission to establish guidelines for exercising its powers, including the granting, denying and modifying of parole, 18 U.S.C. §§ 4203(a)(1), (b)(1), and (b)(3) (1976). Under its guidelines, the commission determines for each prisoner, the severity of his offense behavior (offense characteristics) and classifies it in any of six categories ranging from “low” to “Greatest II”. The commission also determines a prisoner’s parole prognosis (offender characteristics) and calculates his “salient factor score” on a scale from 0 to 10. For various combinations of offense severities and salient factor scores the guidelines indicate a range of “customary range of time to be served before release” on parole. 28 C.F.R. § 2.20(b) (1982). The regulations specifically provide that the time ranges are “merely guidelines” and that “[wjhere the circumstances warrant, decisions outside of the guidelines (either above or below) may be rendered.” 28 C.F.R. § 2.20(c) (1982). After revoking parole based on “new criminal conduct”, as in the case at bar, the commission must calculate “the appropriate severity rating for the new criminal behavior”. 28 C.F.R. § 2.21(b)(1) (1982). Because violations of parole may be based on non-federal offenses, the regulations permit the appropriate severity level to “be determined by analogy with listed federal offense behaviors”. Id. As with the original parole, decisions on reparole may, when circumstances warrant, fall outside the guidelines. 28 C.F.R. § 2.21(c) (1982). Federal court review of parole commission decisions is extremely limited, because the commission has been granted broad discretion to determine parole eligibility. 18 U.S.C. § 4218(d); Garcia v. Neagle, 660 F.2d 983 (4th Cir.1981), cert. denied, 454 U.S. 1153, 102 S.Ct. 1023, 71 L.Ed.2d 309 (1982). Deference to the commission’s interpretation of its own regulations is required unless that interpretation is shown to be unreasonable. Staege v. U.S. Parole Commission, 671 F.2d 266, 268 (8th Cir. 1982); see Udall v. Tallman, 380 U.S. 1," }, { "docid": "18059479", "title": "", "text": "was based on the Parole Commission’s use of his association with the Hell’s Angels in arriving at his salient factor score used to determine his parole release eligibility date. LoFran-co’s current habeas petition, in contrast, challenges the special parole condition that he not associate with the Hell’s Angels or any other “outlaw motorcycle gang.” This special condition did not even exist when Lo-Franco filed his previous habeas petition. Thus, the legality of that condition could not have been determined by the Court in ruling on the first habeas petition. As discussed below, however, the Court finds the Second Circuit’s ruling on LoFran-co’s first petition relevant to decision of the merits of his present claim. C. The Standard of Review for Habeas Petitions Challenging Parole Commission Decisions “Federal court review of parole commission decisions is extremely limited, because the commission has been granted broad discretion to determine parole eligibility.” Bialkin v. Baer, 719 F.2d 590, 593 (2d Cir.1983) (citing 18 U.S.C. § 4218(d)). The Second Circuit has ruled that the “appropriate standard for review of the [Parole] Commission’s decisions is whether there has been an abuse of discretion. This means that a court may not substitute its own judgment for that of the commission, but may consider only whether there is a rational basis for the commission’s decision.” Id. (citations omitted); see also, e.g., Iuteri v. Nardoza, 732 F.2d 32, 37 (2d Cir.1984) (Court should determine “ “whether there is a rational basis in the record for the [Parole Commission’s] conclusions embodied in its statement of rea sons.’ ”) LoFranco cites United States v. Tolla, 781 F.2d 29, 34 (2d Cir.1986), for the proposition that conditions that restrict a parolee’s freedom of association “must be especially fine-tuned.” (See 9/26/96 Oral Arg. Tr. at 7.) In Tolla, the Court upheld a restriction that prohibited a convicted perjurer from teaching young children, reasoning, inter alia, that denying her that satisfaction would serve as a deterrent against the temptation to perjure herself in the future. Tolla’s holding appears inconsistent with its “fine-tuned” language. Moreover, in United States v. Schiff, 876 F.2d 272, 275-76 (2d" }, { "docid": "14040347", "title": "", "text": "1378 (10th Cir. 1977). In Rumfelt v. United States, No. 76-1708 (10th Cir. Dec. 17, 1976) (not for routine publication), Slip Op. 3, the court stated: the district court’s inquiry is whether the reasons given for the Board’s action are adequate and whether the information relied on by the Board was sufficient to provide a factual basis for these reasons. 18 U.S.C. § 4205(b) provides sentencing judges with an alternative. Under (1) the judge may specify a minimum term, which must be less than one-third of the maximum allowable sentence, after which the defendant shall be eligible for parole. Under (2) the judge specifies a maximum term, allowing the parole commission to determine the parole date, which under section 4205(a) is normally after at least one-third of the sentence. 18 U.S.C. § 4203(b) grants the Parole Commission broad powers to grant and delineate parole conditions. Section 4203(a)(1) directs the commission to promulgate rules establishing guidelines for carrying out its parole decisions. 18 U.S.C. § 4206(a) provides that if release would not depreciate the seriousness of the offense or jeopardize the public welfare, then, pursuant to the guidelines, the commission may release a prisoner on parole. Section 4206(c) provides that the commission may grant or deny parole outside of the guidelines if it determines that there is good cause for doing so. If it does so, however, then it must give the prisoner written notice of its reasons. See generally Fronczak v. Warden, El Reno Reformatory, 553 F.2d 1219, 1220-21 (10th Cir. 1977) (partially overruled on other grounds, Watts v. Hadden, 651 F.2d 1354, 1382-83 (10th Cir. 1981)). The Parole Commission has adopted 28 C.F.R. § 2.20 (1980) as its guidelines for determining when parole should normally be granted. This regulation establishes a grid. One coordinate of the grid, the “salient factor score,” attempts to evaluate a prisoner’s potential risk of violating parole. The other coordinate is a determination of the severity of the offense. After determining each of these coordinates, the Parole Commission applies the grid to determine the normal amount of time that a prisoner should be confined before" }, { "docid": "11836375", "title": "", "text": "the writ by advancing the claim. Congress has given the Parole Commission great discretion concerning matters of parole. See 18 U.S.C. § 4203. In addition, applicable regulations permit the Parole Commission to use all relevant, available information in making parole determinations. Thus, 28 C.F.R. § 2.19(c) provides that: The Commission may take into account any substantial information available to it in establishing the prisoner’s offense severity rating, salient factor score, and any aggravating or mitigating circumstances, provided the prisoner is apprised of the information and afforded an opportunity to respond. If the prisoner disputes the accuracy of the information presented, the Commission shall resolve such dispute by the preponderance of the evidence standard; that is, the commission shall rely upon such information only to the extent that it represents the explanation of the facts that best accords with reason and probability- 18 U.S.C. § 4206(c) permits the Parole Commission to grant or deny release on parole notwithstanding the guidelines of that section so long as it has good cause for doing so and it furnishes the prisoner with written notice stating with particularity the reasons for its determination. “Good cause” requires substan tial reasons for the Parole Commission’s action and includes only grounds which are “not arbitrary, irrational, unreasonable, irrelevant or capricious.” Harris v. Martin, 792 F.2d 52, 55 (3d Cir.1986). “Good cause” may include considerations of factors such as whether “the prisoner was involved in an offense with an unusual degree of sophistication or planning or has a lengthy prior record, or was part of a large scale conspiracy or continuing criminal enterprise.” Romano v. Baer, 805 F.2d 268, 270 (7th Cir.1986) (quotation marks and citation omitted). Although the Parole Commission’s decisions must have a factual basis, judicial review is limited to whether there is “some evidence” in the record to support its decision. Maddox v. United States Parole Comm’n, 821 F.2d 997, 999 (5th Cir.1987). When there is conflicting information available to the Parole Commission, it must resolve disputes about the information by “a preponderance of the evidence.” Gambino v. Morris, 134 F.3d at 168. See Campbell v." }, { "docid": "5922079", "title": "", "text": "Petitioner, with counsel, now renews his initial challenge. He maintains that the amended Notice merely elaborates on the reasons set forth in the original Notice and that the Commission’s decision continues to rest upon petitioner’s prior convictions and his parole and probation status — two factors covered by the salient factor score under Items A and E. Petitioner alternatively contends that regardless of whether the Commission impermissibly doubled factors, it failed to set forth good cause for the decision. The Commission, however, maintains that Item A only designates points based on the number, not the nature, of past convictions and, therefore, the Commission can consider the similarity of those offenses in determining that petitioner particularly was a poor parole risk. The Commission also contends that since under Item E only one point is lost irrespective of the number of parole and probation violations involved, it can consider petitioner’s state probation violation as an additionally aggravating factor. II. Pursuant to the Congressional mandate set forth in 18 U.S.C. § 4203(a), the Com mission has established guidelines for the purpose of promoting “a more consistent exercise of discretion, . . .’’in granting parole. 28 C.F.R. § 2.20(a). Under the guidelines, an inmate’s salient factor score is computed to determine the potential risk of parole violation. The Commission then applies this score to the inmate’s severity offense rating to determine the customary parole release date. The Commission, however, pursuant to 18 U.S.C. § 4206(c), may depart from the guideline rangé in a particular case “if it determines there is good cause for so doing.” Id. Good cause has not been defined specifically in either the enabling legislation or the Commission’s own regulations. Courts, faced with the task of enunciating the parameters of this standard, give the Commission wide latitude so long as it adequately explains the decision to the inmate and the decision is neither arbitrary nor capricious. Mayo v. Sigler, 428 F.Supp. 1343 (N.D.Ga.1977); Randaccio v. Wilkinson, 415 F.Supp. 612 (D.Conn.1976); See generally, U. S. ex rel. Johnson v. Chairman, N. Y. State Bd. of Parole, 500 F.2d 925, 934 (2d Cir." }, { "docid": "5922071", "title": "", "text": "MEMORANDUM OF DECISION DALY, District Judge. Petitioner is presently incarcerated at the F.C.I., in Danbury, Connecticut as a result of a conviction on one count of theft from a foreign shipment in violation of 18 U.S.C. § 659. On December 19, 1975, petitioner was sentenced to a five-year regular adult term of imprisonment and he began service of this sentence on November 4,1976. Petitioner’s initial parole hearing was held on February 6, 1978. The Commission, by Notice of Action dated February 23, 1978, denied petitioner parole and continued him beyond the applicable guideline period until his mandatory release date with a statutory interim hearing during August of 1979. After exhausting the Commission’s administrative remedies, petitioner, with counsel, filed this action under 28 U.S.C. § 2241 seeking a new parole hearing on the grounds that the Commission improperly extended his parole date beyond the guideline period. Specifically, petitioner attacks the reasons given in the Notice of Action for going above the guidelines as the very same reasons used by the Commission to determine the guideline period for his release. This Court is unable to address the merits of petitioner’s claim since the Notice of Action, itself, is fatally defective. II. The Commission, seeking to quantify objectively the factors involved in the parole determination, has adopted pursuant to 18 U.S.C. § 4203(a) guidelines for the purpose of promoting “a more consistent exercise of discretion, and enabling fairer and more equitable decision making in granting parole.” 28 C.F.R. § 2.20(a). Under the guidelines an evaluation sheet must be prepared in each case for computing a salient factor score. This score serves as an aid in determining the parole prognosis (potential risk of parole violation). 28 C.F.R. § 2.20(e). Pursuant to the guidelines, the Commission then applies this score to petitioner’s severity offense rating to determine the customary parole release date. In the ordinary case, where a decision is reached to apply the guideline period after a finding that no special aggravating or mitigating factors are present, a Notice of Action containing the offense severity rating, salient factor score, period of incarceration, and applicable" }, { "docid": "7567291", "title": "", "text": "that the new designation of his firearms offense as a category 5, or “Very High Severity,” offense has the ex post facto effect of increasing the length of his confinement. We find no merit in these contentions. Congress vested in the Commission the sole power to grant or deny parole, Billiteri v. United States Board of Parole, 541 F.2d 938, 944 (2d Cir.1976); see 18 U.S.C. § 4203(b) (1976), and instructed the Commission to promulgate rules and regulations establishing guidelines for exercise of these powers, 18 U.S.C. § 4203(a)(1) (1976); Bialkin v. Baer, 719 F.2d 590, 592 (2d Cir.1983). Because the Commission has been granted broad discretion to determine parole eligibility, see 18 U.S.C. § 4218(d) (1976), we will defer to the Commission’s interpretation of its regulations unless that interpretation is unreasonable. Lieberman v. Gunnell, 726 F.2d 75, 77 (2d Cir.1984); Bialkin v. Baer, supra, 719 F.2d at 593; Staege v. United States Parole Commission, 671 F.2d 266, 268 (8th Cir.1982). At issue here are the Commission’s interpretations of its 1982 and 1983 revisions of its regulations in coordination with its an nounced policy as to the retroactivity of those revisions. The announced policy was that the revisions would not be applied to a prisoner who had already had an initial presumptive release date determination unless the revisions would lead to a “more favorable severity rating.” 47 Fed.Reg. 56,336. On its face, this statement is open to more than one interpretation. Timpani argues that it meant that such a prisoner was entitled to the benefit of any more favorable severity rating, even one that related to only one component of his overall offense behavior severity rating. The Commission’s interpretation of its policy statement is that “more favorable severity rating” means the overall offense behavior severity rating, and that the determination as to whether the revisions produce a more favorable overall rating can be made only by applying the revised standards for both components — i.e., the individual offense seriousness factor and the number of offenses. We find nothing unreasonable in the Commission’s interpretation. It is entirely consistent with the language" }, { "docid": "2768102", "title": "", "text": "event stated sufficient reasons for not doing so. We agree. It is the Commission, and not the Examiners, which is vested with the responsibility to make the parole decision. The hearing examiners are merely empowered to make recommendations to the Commission. 18 U.S.C. § 4203(c)(2) (1982); 28 C.F.R. § 2.23, 2.24 (1984). The Commission in its Notice of Action stated that Lynch was to be continued to another hearing in 1991 because his earlier release “would depreciate the seriousness of [his] offense,” and would not adequately account for his history of misconduct while incarcerated. This determination by the Commissioners may be disturbed only upon a showing of abuse of discretion, or arbitrary and capricious action. Iuteri v. Nardoza, 732 F.2d 32, 37 (2d Cir.1984); Lieberman v. Gunnell, 726 F.2d 75, 77 (2d Cir.1984); Bialkin v. Baer, 719 F.2d 590, 593 (2d Cir.1983). This is not a case in which the Commission determined to continue a prisoner for a period beyond the maximum recommended by the guidelines; in such cases, it has been held that the Commission may not confine a prisoner beyond the applicable guideline range based upon the severity of the offense, because that factor was used to select the guideline range in the first place. See Alessi v. Quinlan, 711 F.2d 497, 500 (2d Cir.1983) (citing cases). Rather, an offense of Greatest II severity involves no maximum recommended time to be served prior to parole. The Commissioners’ decision therefore did not exceed the guidelines. Although the Commission is required to state “with particularity” its reasons for denying parole, 18 U.S.C. § 4206(b) (1982), when the determination does not exceed a maximum term set forth in the guidelines, it is a sufficient statement of reasons to deny parole for the Commission to note the severity of a prisoner’s offense and his poor institutional record. Reynolds v. McCall, 701 F.2d 810, 814 (9th Cir.1983); Shahid v. Crawford, 599 F.2d 666, 671-72 (5th Cir.1979); Garcia v. United States Board of Parole, 557 F.2d 100, 105 (7th Cir.1977); see 18 U.S.C. § 4206(a)(1) (1982). Lynch quotes from the Commission’s Procedures Manual the" }, { "docid": "7008784", "title": "", "text": "“(c) These time ranges are merely guidelines. Where the circumstances warrant, decisions outside of the guidelines (either above or below) may be rendered. “(d) The guidelines contain examples of offense behaviors for each severity level. However, especially mitigating or aggravating circumstances in a particular case may justify a decision or a severity rating different from that listed. “(e) An evaluation sheet containing a ‘salient factor score’ serves as an aid in determining the parole prognosis (potential risk of parole violation). However, where circumstances warrant, clinical evaluation of risk may override this predictive aid.” 28 C.F.R. § 2.20. Title 18 U.S.C. § 4206(d) provides that a prisoner serving a sentence of five years or longer must be paroled after having served two-thirds of his term unless the Commission determines that he has seriously violated institution rules and regulations, or that there is a reasonable probability that he will, if released, commit a crime. Priore contends that the guidelines violate the Act because they concentrate almost entirely upon the severity of the offense of which a prisoner has been convicted, without regard to either the length and type of the sentence actually imposed upon him by the court, the nature and circumstances surrounding the commission of the offense by the prisoner or the prisoner’s history and characteristics. The effect, he argues, is contrary to congressional intent and permits an unlawful resentencing by the Commission. We disagree. The guidelines fall well within the broad authority granted by Congress in 18 U.S.C. § 4203(a)(1) to the Commission. The Commission’s establishment of a system for estimating customary release dates, moreover, is rational and in accordance with both the criteria set forth in 18 U.S.C. § 4206(a) and the intent of Congress as expressed in the foregoing quoted portion of House Conference Report No. 94 — 838, supra. See, in accord, Moore v. Nelson, 611 F.2d 434, 439 (2d Cir. 1979); Shepard v. Taylor, 556 F.2d 648, 654 (2d Cir. 1977); Dioguardi v. United States, 587 F.2d 572, 575 (2d Cir. 1978); Ruip v. United States, 555 F.2d 1331 (6th Cir. 1977); Vanacore v. United States," } ]

[ { "docid": "23676058", "title": "", "text": "trial of respondents on the indictment terminated, not in their favor, but in a mistrial declared, sua sponte, by the District Court. Where the trial is terminated in this manner, the classical test for determining whether the defendants may be retried without violating the Double Jeopardy Clause is stated in Mr. Justice Story’s opinion for this Court in United States v. Perez, 9 Wheat. 579, 580 (1824): “We are of opinion, that the facts constitute no legal bar to a future trial. The prisoner has not been convicted or acquitted, and may again be put upon his defence. We think, that in all cases of this nature, the law has invested courts of justice with the authority to discharge a jury from giving any verdict, whenever, in their opinion, taking all the circumstances into consideration, there is a manifest necessity for the act, or the ends of public justice would otherwise be defeated.” The Government’s right to retry the defendant, after a mistrial, in the face of his claim of double jeopardy is generally governed by the test laid down in Perez, supra. The situation of a hung jury presented here is precisely the situation that was presented in Perez, supra, and therefore the Double Jeopardy Clause does not bar retrial of these respondents on the indictment which had been returned against them. The District Court’s dismissal of the indictment occurred several months after the first trial had ended in a mistrial, but before the retrial of respondents had begun. This case is, therefore, governed by United States v. Serfass, supra, in which we held that a pretrial order of the District Court dismissing an indictment charging refusal to submit to induction into the Armed Torces was appealable under 18 U. S. C. § 3731. The dismissal in this case, like that in Serfass, was prior to a trial that the Government had a right to prosecute and that the defendant was required to defend. Since in such cases a trial following the Government’s successful appeal of a dismissal is not barred by double jeopardy, an appeal from the dismissal" } ]

[ { "docid": "14457085", "title": "", "text": "of successive prosecutions, the Double Jeopardy Clause is not offended. Thus a postverdict dismissal of an indictment after a jury rendered a guilty verdict has been held to be appealable by the United States because restoration of the guilty verdict, and not a new trial, would necessarily result if the Government prevailed. United States v. Martin Linen Supply Co., supra, — U.S. at —, 97 S.Ct. at 1354, citing United States v. Wilson, supra. . The Court’s holding was limited to “the case of a government appeal from the District Court’s judgment of acquittal under Rule 29(c) where the jury failed to agree on a verdict.” United States v. Martin Linen Supply Co., supra, — U.S. at —, 97 S.Ct. at 1354 (emphasis supplied). Thus, the Court held that “the Double Jeopardy Clause bars appeal from an acquittal entered under 29(c) after a jury mistrial . , . Id. at —, 97 S.Ct. at 1356. . Our conclusion that the Double Jeopardy Clause does not bar the government’s appeal here is reinforced by the fact that the Supreme Court’s Martin Linen decision affirmed the decision of the Court of Appeals for the Fifth Circuit, which had dismissed the government’s appeal on Double Jeopardy grounds. United States v. Martin Linen Supply Co., 534 F.2d 585 (5th Cir. 1976). Although the Fifth Circuit thus found government appeal from a district court’s judgment of acquittal properly entered under Rule 29(c) after a hopelessly deadlocked jury had been discharged violative of the Double Jeopardy Clause, the court significantly noted that a different case is presented when a jury verdict of guilty is followed by a court-directed judgment of acquittal. The Fifth Circuit unequivocally remarked that in this latter situation, “the Government admittedly can appeal.” Id. at 588 n.6, citing United States v. Wilson, supra; United States v. Cravero, supra note 6. Therefore, we are convinced that Martin Linen does not control this case. For the same reason, we do not view United States v. Sanford, 536 F.2d 871 (9th Cir. 1976) as dispositive of this case. . Lengthy instructions, with emphasis on the “reasonable" }, { "docid": "972447", "title": "", "text": "his agency would have been able to pay off all the loans had Continental Bank not frozen his agency’s account in 1976. Finally, appellee introduced testimony of an FBI agent which cast some doubt on Burgoyne’s testimony concerning the forged documents. Apparently, the jury chose not to believe the defense version of the transactions and, after some six hours of deliberation, found Dreitzler guilty on the 27 counts submitted to them. The trial court, however, disagreed with the jury’s conclusions, and granted a judgment of acquittal pursuant to F.R.Crim.P. 29(c) on the willful misapplication counts (Counts 1-15 and 17-24). II. DOUBLE JEOPARDY The first issue which must be dealt with is whether the United States is barred from appealing the judgment of acquittal on Counts 1-15 and 17-24 by the Double Jeopardy Clause of the Fifth Amendment to the United States Constitution. Relying on the recent Supreme Court case of United States v. Martin Linen Supply Co., 430 U.S. 564, 97 S.Ct. 1349, 51 L.Ed.2d 642 (1977), Dreitzler argues that the “Double Jeopardy Clause bars appellate review and retrial following a judgment of acquittal entered under Rule 29(c).” We cannot agree that Martin Linen stands for the broad proposition asserted by Dreitzler. A reading of that case reveals that it is factually distinguishable from this one. In Martin Linen, the trial court had discharged a “hopelessly deadlocked” jury after it was unable to agree upon a verdict. The trial court then granted the defendant’s motion for judgment of acquittal. The United States sought to appeal that order pursuant to 18 U.S.C. § 3731. The Supreme Court held that such an appeal was not permitted on the facts of that case because the defendant would then be subject to multiple prosecutions, there being no verdict to reinstate if the government prevailed. Thus, “the Double Jeopardy Clause bars appeal from an acquittal entered under [F.R.Crim.P.] 29(c) after a jury mistrial . . . .” Id. at 575, 97 S.Ct. at 1356 (emphasis supplied). Here, of course, there was no mistrial declared. The jury returned verdicts of guilty on 27 counts. Reversal of" }, { "docid": "13459200", "title": "", "text": "specifically rejected the mistrial alternative. Although our precise question was not answered by the Supreme Court in its recent trilogy, the policies' expressed in those opinions require our conclusion that a government appeal in this case would violate the Double Jeopardy Clause of the Constitution. In United States v. Wilson, supra, the district court dismissed the indictment upon grounds of prejudicial preindictment delay after trial had terminated in a jury verdict of guilty. The Court of Appeals dismissed' a government appeal. The Supreme Court reversed. It determined that the constitutional protection against double jeopardy attaches only where there is a danger of subjecting the defendant to a second trial for the same offense. Since the district court’s dismissal could be reviewed and if reversed would result in the reinstatement of the jury verdict without subjecting defendant to a second trial, the Government was allowed to appeal. Serfass v. United States, supra, involved a pretrial dismissal. The Supreme Court held that labelling the trial court’s action an “acquittal” instead of a dismissal was without significance until jeopardy attached, and that there was no bar to a government appeal under § 3731 from a pretrial ruling of a district court when the defendant has not been put in jeopardy. The language used by the Supreme Court in the third case of the trilogy buttresses our conclusion of nonappeala-bility. When a case has been tried to a jury, the Double Jeopardy Clause does not prohibit an appeal by the Government providing that a retrial would not be required in the event the Government is successful in its appeal. United States v. Jenkins, - U.S. -, -, 95 S.Ct. 1006, 1011, 43 L.Ed.2d 250 (1975). While Jenkins was a bench trial and the case at bar a jury trial, the relevant facts are substantially identical. In Jenkins, after conclusion of the trial but before the court had made a finding of guilty or not guilty, it entered a judgment dismissing the indictment and discharging the defendant. The Supreme Court held the dismissal nonappealable. It indicated that the guiding consideration is whether “further proceedings of" }, { "docid": "22614926", "title": "", "text": "the trial court terminated without any decision on the merits. “The trial of respondents on the indictment terminated, not in their favor, but in a mistrial declared, sua sponte, by the District Court. Where the trial is terminated in this manner, the classical test for determining whether the defendants may be retried without violating the Double Jeopardy Clause is stated in Mr. Justice Story’s opinion for this Court in United States v. Perez, 9 Wheat. 579, 580 (1824): “ ‘We are of opinion, that the facts constitute no legal bar to a future trial. The prisoner has not been convicted or acquitted, and may again be put upon his defence. . .' \" Id., at 15. Mr. Chief Justice Burger, dissenting. The order of acquittal in favor of respondents was entered by the District Judge after a mistrial had been declared due to a jury deadlock. Once the jury was dismissed, respondents ceased to be in jeopardy in that proceeding; they could no longer be convicted except after undergoing a new trial. For a century and a half it has been accepted that a defendant may properly be reprosecuted after the declaration of such a mistrial, United States v. Perez, 9 Wheat. 579 (1824). Therefore the District Judge’s ruling here was made “prior to a trial that the Government had a right to prosecute and that the defendant was required to defend.” United States v. Sanford, 429 U. S. 14, 16 (1976). The present case cannot be distinguished from Sanford in constitutionally material respects. It is true that the District Judge here phrased his order as an acquittal rather than as a dismissal, and that the order was entered pursuant to a timely Rule 29 (c) motion. However, such mechanical niceties are not dispositive of whether retrial would expose defendants to double jeopardy; our Fifth Amendment inquiry should focus on the substance rather than the form of the proceedings below. In ruling on a motion for acquittal the District Judge must pass on the sufficiency, not on the weight, of the Government’s case, United States v. Isaacs, 516 F. 2d" }, { "docid": "972448", "title": "", "text": "appellate review and retrial following a judgment of acquittal entered under Rule 29(c).” We cannot agree that Martin Linen stands for the broad proposition asserted by Dreitzler. A reading of that case reveals that it is factually distinguishable from this one. In Martin Linen, the trial court had discharged a “hopelessly deadlocked” jury after it was unable to agree upon a verdict. The trial court then granted the defendant’s motion for judgment of acquittal. The United States sought to appeal that order pursuant to 18 U.S.C. § 3731. The Supreme Court held that such an appeal was not permitted on the facts of that case because the defendant would then be subject to multiple prosecutions, there being no verdict to reinstate if the government prevailed. Thus, “the Double Jeopardy Clause bars appeal from an acquittal entered under [F.R.Crim.P.] 29(c) after a jury mistrial . . . .” Id. at 575, 97 S.Ct. at 1356 (emphasis supplied). Here, of course, there was no mistrial declared. The jury returned verdicts of guilty on 27 counts. Reversal of the district court’s judgment of acquittal will not subject Dreitzler to a second trial since there are jury verdicts which can be reinstated. See United States v. Wilson, 420 U.S. 332, 95 S.Ct. 1013, 43 L.Ed.2d 232; United States v. Ramos, 558 F.2d 545, 546 (9th Cir. 1977); United States v. Rojas, 554 F.2d 938 (9th Cir. 1977). We hold that the Double Jeopardy Clause does not bar appellate review of the district court’s entry of judgment of acquittal. The United States may prosecute this appeal pursuant to 18 U.S.C. § 3731. III. THE JUDGMENT OF ACQUITTAL ENTERED BY THE TRIAL COURT The jury found Dreitzler guilty on 23 counts of willful misapplication of bank funds, in violation of 18 U.S.C. § 656. The United States contends that the trial court then committed reversible error by granting appellee’s motion for judgment of acquittal. Dreitzler of course adopts the contrary view, and argues that the judgment of acquittal must be sustained. It is well settled that a district court does not have unlimited discretion in resolving" }, { "docid": "23676056", "title": "", "text": "Per Curiam. Respondents were indicted for illegal game hunting in Yellowstone National Park. A jury trial in the United States District Court for the District of Montana resulted in a hung jury, and the District Court declared a mistrial. Four months later, while the Government was preparing to retry them, respondents moved to dismiss the indictment. The District Court, agreeing that the Government had consented to the activities which formed the basis of the indictment, dismissed it. The Government’s appeal pursuant to the Criminal Appeals Act, 18 U. S. C. § 3731, was dismissed by the Court of Appeals because that court thought retrial was barred by the Double Jeopardy Clause of the Fifth Amendment to the United States Constitution. The Government petitioned for certiorari, and we vacated the judgment of the Court of Appeals and remanded for further consideration in the light of our intervening decision in Serfass v. United States, 420 U. S. 377 (1975). 421 U. S. 996 (1975). On remand, the Court of Appeals, considering the trilogy of Serfass, supra, United States v. Wilson, 420 U. S. 332 (1975), and United States v. Jenkins, 420 U. S. 358 (1975), adhered to its prior determination. The Government now seeks certiorari from that ruling. The reasoning of the Court of Appeals is best summarized by this language from its opinion: “Here appellees have undergone trial. There is no question but that jeopardy has attached. That being so, and since the proceedings in the district court have ended in appellees’ favor and the consequences of a reversal in favor of the Government would be that appellees must be tried again, we conclude that they would, on retrial, be placed twice in jeopardy.” 536 F. 2d 871, 872 (CA9 1976). We agree with the Court of Appeals that jeopardy attached at the time of the empaneling of the jury for the first trial of respondents. But we do not agree with that court’s conclusion that by reason of the sequence of events in the District Court the Government would be barred by the Double Jeopardy Clause from retrying respondents. The" }, { "docid": "13270837", "title": "", "text": "to Serfass, cases such as United States v. Sisson, 1970, 399 U.S. 267, 90 S.Ct. 2117, 26 L.Ed.2d 608, had indicated that appeals from acquittals based on facts external to the indictment might be barred by the double jeopardy clause. The Wilson court, however, read Sisson as narrowly as possible, and indicated that the result might be different under the amended section 3731. Serfass held that the Government could appeal from a pretrial dismissal of an indictment, since at that time jeopardy had hot attached. Since the time for a Rule 29(c) motion had apparently long since elapsed in Sanford, the case no longer fell into the category of a mistrial followed by a timely acquittal. Rather, the district court’s order was simply a pretrial dismissal, and as such was subject to the Serfass decision’s rule. In the case before us, in contrast, the acquittal occurred while the original trial court still had jurisdiction over the whole case, in accordance with the Federal Rules of Criminal Procedure. We therefore reject the Government’s suggestions that the Supreme Court’s action in Sanford requires us to find appellate jurisdiction here. For the reasons stated above, we conclude that this Court has no jurisdiction over the Government’s appeal. APPEAL DISMISSED. . Section 3731 provides in pertinent part: In a criminal case an appeal by the United States shall lie to a court of appeals from a decision, judgment, or order of a district court dismissing an indictment or information as to any one or more counts, except that no appeal shall lie where the double jeopardy clause of the United States Constitution prohibits further prosecution. . The Government brought the criminal contempt proceeding to enforce the terms of an antitrust consent decree that had been entered on June 2, 1969. Martin Linen and Texas Sanitary Towel had been charged in a civil complaint with violating section 1 of the Sherman Act, 15 U.S.C. § 1. . Because the Supreme Court has focussed on the effect of the ruling sought to be appealed rather than the label placed on the order, we too attach no" }, { "docid": "1044788", "title": "", "text": "is entered before discharge of the jury. The Court rejected this temporal distinction: [I]f the judge orders entry of judgment of acquittal on his own or on defendant’s motion prior to submission of the case to the jury, as he may under Rule 29(a), or after submission but prior to the jury’s return of a verdict, as authorized by Rule 29(b) — and the jury thereafter is discharged — the Government’s argument necessarily concedes that the Double Jeopardy Clause would preclude both appeal and retrial. Id. at 574, 97 S.Ct. 1349. Indeed, far from “weakening the trial court’s binding authority for purposes of double jeopardy,” the timing distinctions in Rule 29 were designed to “accord[] the federal trial judge greater flexibility in timing his judgment of acquittal.” Id. at 573, 97 S.Ct. 1349. Emphasizing the sanctity and finality of acquittals under Rule 29, the Court concluded “that judgments under Rule 29 are to be treated uniformly and, accordingly, the Double Jeopardy Clause bars appeal from an acquittal entered under Rule 29(c) after a jury mistrial no less than under Rule 29(a) or (b).” Id. at 575, 97 S.Ct. 1349. One year after Martin Linen, the Supreme Court weighed in again on the double jeopardy issue in United States v. Scott, 437 U.S. 82, 98 S.Ct. 2187, 57 L.Ed.2d 65 (1978), a case that figures prominently in the 2495 government’s brief. Scott concerned a defendant who successfully obtained dismissal of the indictment “based upon a claim of prein-dictment delay and not on the court’s conclusion that the Government had not produced sufficient evidence to establish the guilt of the defendant.” Id. at 95, 98 S.Ct. 2187. Scott moved for dismissal before trial and twice during trial on the ground that his defense had been prejudiced by the delay. The Court determined that the government’s appeal was not barred because the defendant “deliberately cho[se] to seek termination of the proceedings against him on a basis unrelated to factual guilt or innocence of the offense.” Id. at 98-99, 98 S.Ct. 2187. In making the government’s right to appeal contingent on the “character” of" }, { "docid": "22614907", "title": "", "text": "the dismissal “occurred several months after the first trial had ended in a mistrial, but before the retrial of respondents had begun,” id., at 16, the Court characterized the judge’s dismissal as “a pretrial order,” ibid., and concluded that its appealability was governed by Serfass v. United States, 420 U. S. 377 (1975). The Court’s linking of Sanford with Serfass highlights the distinctiveness of an acquittal under Rule 29 (c). In Serfass the Court carefully distinguished between appeal of a pretrial order and appeal of “ 'a legal determination on the basis of facts adduced at the trial relating to the general issue of the case.' ” 420 U. S., at 393, quoting United States v. Sisson, 399 U. S., at 290 n. 19. A Rule 29 acquittal, however, falls squarely within the latter category: By the very language of the Rule, such a judgment of acquittal plainly concludes a pending prosecution in which jeopardy has attached, following the introduction at trial of evidence on the general issue. In that circumstance we hold that “although retrial is sometimes permissible after a mistrial is declared but no verdict or judgment has been entered, the verdict of acquittal foreclosed retrial and thus barred appellate review.” United States v. Wilson, 420 U. S., at 348. Affirmed. Mr. Justice Rehnquist took no part in the consideration or decision of this case. The criminal contempt proceeding was filed in 1971 and charged respondents, two commonly owned linen supply companies, and their president, William B. Troy, with violation of a consent decree entered in 1969 as the final judgment in an antitrust suit. The petitions were originally dismissed by the District Court but the dismissal was reversed by the Court of Appeals, 485 F. 2d 1143 (1973). The Government filed a supplemental criminal contempt petition on which trial was had in February 1975. On February 21, 1975, the jury was discharged after returning the not-guilty verdict as to Troy and announcing that it was “hopelessly deadlocked” as to respondent corporations. Six days later, on February 27, 1975, respondents filed their motions for judgments of acquittal under" }, { "docid": "22614898", "title": "", "text": "U. S. 377 (1975). This state of jeopardy attaches when a jury is empaneled and sworn, or, in a bench trial, when the judge begins to receive evidence. Illinois v. Somerville, 410 U. S. 458, 471 (1973) (White, J., dissenting); Downum v. United States, supra. Further, where a Government appeal presents no threat of successive prosecutions, the Double Jeopardy Clause is not offended. Thus a postverdict dismissal of an indictment after a jury rendered a guilty verdict has been held to be appealable by the United States because restoration of the guilty verdict, and not a new trial, would necessarily result if the Government prevailed. United States v. Wilson, supra. II None of the considerations favoring appealability is present in the case of a Government appeal from the District Court’s judgments of acquittal under Rule 29 (c) where the jury failed to agree on a verdict. The normal policy granting the Government the right to retry a defendant after a mistrial that does not determine the outcome of a trial, United States v. Perez, 9 Wheat. 579, 580 (1824), is not applicable since valid judgments of acquittal were entered on the express authority of, and strictly in compliance with, Rule 29 (c). Those judgments, according to the very wording of the Rule, act to terminate a trial in which jeopardy has long since attached. And a successful governmental appeal reversing the judgments of acquittal would necessitate another trial, or, at least, “further proceedings of some sort, devoted to the resolution of factual issues going to the elements of the offense charged . . . .” United States v. Jenkins, 420 U. S. 358, 370 (1975). Therefore, the present case is not one where the double jeopardy bar to appealability is automatically averted. Rather, we must inquire further into the constitutional significance of a Rule 29 (c) acquittal. Perhaps the most fundamental rule in the history of double jeopardy jurisprudence has been that “[a] verdict of acquittal . . . could not be reviewed, on error or otherwise, without putting [a defendant] twice in jeopardy, and thereby violating the Constitution.” United" }, { "docid": "22614897", "title": "", "text": "with a potent instrument of oppression. The Clause, therefore, guarantees that the State shall not be permitted to make repeated attempts to convict the accused, “thereby subjecting him to embarrassment, expense and ordeal and compelling him to live in a continuing state of anxiety and insecurity, as well as enhancing the possibility that even though innocent he may be found guilty.” Green v. United States, 355 U. S. 184, 187-188 (1957); see also Downum v. United States, 372 U. S. 734, 736 (1963). “[S]ociety’s awareness of the heavy personal strain which a criminal trial represents for the individual defendant is manifested in the willingness to limit the Government to a single criminal proceeding to vindicate its very vital interest in enforcement of criminal laws.” United States v. Jorn, 400 U. S. 470, 479 (1971) (Harlan, J.). In animating this prohibition against multiple prosecutions, the Double Jeopardy Clause rests upon two threshold conditions. The protections afforded by the Clause are implicated only when the accused has actually been placed in jeopardy. Serfass v. United States, 420 U. S. 377 (1975). This state of jeopardy attaches when a jury is empaneled and sworn, or, in a bench trial, when the judge begins to receive evidence. Illinois v. Somerville, 410 U. S. 458, 471 (1973) (White, J., dissenting); Downum v. United States, supra. Further, where a Government appeal presents no threat of successive prosecutions, the Double Jeopardy Clause is not offended. Thus a postverdict dismissal of an indictment after a jury rendered a guilty verdict has been held to be appealable by the United States because restoration of the guilty verdict, and not a new trial, would necessarily result if the Government prevailed. United States v. Wilson, supra. II None of the considerations favoring appealability is present in the case of a Government appeal from the District Court’s judgments of acquittal under Rule 29 (c) where the jury failed to agree on a verdict. The normal policy granting the Government the right to retry a defendant after a mistrial that does not determine the outcome of a trial, United States v. Perez, 9" }, { "docid": "13270833", "title": "", "text": "judgments of acquittal within 7 days after the discharge of the jury; and the court entered judgments of acquittal. For the purposes of appellate review, therefore, this is not a case in which the standard governing retrial after a mistrial governs, despite the Government’s ef forts to make it so. As the Supreme Court said in United States v. Jenkins, 1975, 420 U.S. 358, 365, 95 S.Ct. 1006, 1011, 43 L.Ed.2d 250, 256 n. 7: [W]e think it is of critical importance whether the proceedings in the trial court terminate in a mistrial as they did in the Somerville line of cases [Illinois v. Somerville, 410 U.S. 458 (1973)], or in the defendant’s favor, as they did here. Cf. United States v. Wilson, 1975, 420 U.S. 332, 348, 95 S.Ct. 1013, 1024, 43 L.Ed.2d 232, 244 (although retrial after mistrial sometimes permissible if no verdict or judgment entered, verdict of acquittal forecloses retrial and thus bars appellate review). Since the proceedings here terminated in the defendant’s favor, we must decide whether this is a case in which the Government may appeal after a directed verdict of acquittal. The language of section 3731 makes appealability dependent on another question: would the double jeopardy clause of the Constitution bar further proceedings under these circumstances? Congress deliberately chose to make the Government’s right to appeal as broad as the Constitution would permit when it passed Title III of the Omnibus Crime Control Act of 1970, Pub.L. 91-644, in which the present version of 18 U.S.C. § 3731 appeared. Recently the Supreme Court discussed the scope of amended section 3731 in three cases: Serfass v. United States, 1975, 420 U.S. 377, 95 S.Ct. 1055, 43 L.Ed.2d 265; United States v. Jenkins, 1975, 420 U.S. 358, 95 S.Ct. 1006, 43 L.Ed.2d 250; and United States v. Wilson, 1975, 420 U.S. 332, 95 S.Ct. 1013, 43 L.Ed.2d 232. Serfass stressed the necessity of a finding that jeopardy has attached as a prerequisite to the applicability of the double jeopardy clause. That requirement is certainly satisfied in the case before us; not only was a jury empaneled" }, { "docid": "15057516", "title": "", "text": "double jeopardy arena. In these recent decisions, the Supreme Court has clarified the ability of Government to appeal a Judge’s ruling on a legal issue in favor of a defendant after a guilty verdict. In one, United States v. Morrison, 1976, - U.S. -, 97 S.Ct. 24, 50 L.Ed.2d 1, the Supreme Court quoted from United States v. Wilson, 1975, 420 U.S. 332, 95 S.Ct. 1013, 43 L.Ed.2d 232, “We therefore conclude that when a judge rules in favor of the defendant after a verdict of guilty has been entered by the trier of fact, the Government may appeal from that ruling without running afoul of the Double Jeopardy Clause. 420 U.S. at 352-353 [95 S.Ct. 1013, 1026].” Morrison, supra at --, 97 S.Ct.at 26. The Court’s rationale in Morrison and United States v. Rose highlights an underlying concern of the double jeopardy principle. The appeal by Government, if successful, would result only in the reinstatement of the guilty verdict. No further proceedings relating to guilt or innocence would be required. United States v. Morrison, 1976, - U.S. -, 97 S.Ct. 24, 50 L.Ed.2d 1, United States v. Rose, 1976, - U.S. -, 97 S.Ct. 26, 50 L.Ed.2d 5. On the same day Morrison and Rose were decided, the Supreme Court ruled that Government may appeal a District Court’s dismissal of an indictment which occurs after a hung jury mistrial but before a retrial. The reasoning was that United States v. Perez, 1824, 9 Wheat, 579, 580, 6 L.Ed. 165, permits a retrial when a mistrial occurs and based on Serfass v. United States, 1975, 420 U.S. 377, 95 S.Ct. 1055, 43 L.Ed.2d 265, jeopardy had not attached because the retrial had not begun. United States v. Sanford, 1976, - U.S. -, 97 S.Ct. 20, 50 L.Ed.2d 17. Despite the importance placed by these decisions on the idea that the Double Jeopardy Clause is directed at the prevention of multiple prosecutions which includes new trials, their differences must be recognized. They entail discussion of appeals by Government from adverse legal determinations by a court. In Petitioner’s instance, Florida does not" }, { "docid": "1044787", "title": "", "text": "twice in jeopardy, and thereby violating the Constitution.’ ” Martin Linen, 430 U.S. at 571, 97 S.Ct. 1349 (emphasis added) (quoting Fong Foo v. United States, 369 U.S. 141, 143, 82 S.Ct. 671, 7 L.Ed.2d 629 (1962) (per curiam)). In addition, the Court explained that “what constitutes an ‘acquittal’ is not to be controlled by the form of the judge’s action. Rather, [it] must [be] determine^] whether the ruling of the judge, whatever its label, actually represents a resolution, correct or not, of some or all of the factual elements of the offense charged.” Id. (citations and footnote omitted) (emphasis added). The judgments of acquittal under Rule 29(c) were, according to the Court, “ ‘acquittals’ in substance as well as form ... [because] the District Court ... evaluated the Government’s evidence and determined that it was legally insufficient to sustain a conviction.” Id. at 571-72, 97 S.Ct. 1349. The government in Martin Linen urged that entry of acquittal after the jury was discharged was somehow distinct from an acquittal under Rule 29(a) or (b), which is entered before discharge of the jury. The Court rejected this temporal distinction: [I]f the judge orders entry of judgment of acquittal on his own or on defendant’s motion prior to submission of the case to the jury, as he may under Rule 29(a), or after submission but prior to the jury’s return of a verdict, as authorized by Rule 29(b) — and the jury thereafter is discharged — the Government’s argument necessarily concedes that the Double Jeopardy Clause would preclude both appeal and retrial. Id. at 574, 97 S.Ct. 1349. Indeed, far from “weakening the trial court’s binding authority for purposes of double jeopardy,” the timing distinctions in Rule 29 were designed to “accord[] the federal trial judge greater flexibility in timing his judgment of acquittal.” Id. at 573, 97 S.Ct. 1349. Emphasizing the sanctity and finality of acquittals under Rule 29, the Court concluded “that judgments under Rule 29 are to be treated uniformly and, accordingly, the Double Jeopardy Clause bars appeal from an acquittal entered under Rule 29(c) after a jury mistrial" }, { "docid": "13270836", "title": "", "text": "no further proceedings would follow a successful appeal. The Jenkins standard thus leads inescapably to the conclusion that no appeal lies from the directed verdict ordered by the court below. The Government’s last effort to avoid dismissal of the appeal relies on the Supreme Court’s action in relation to United States v. Sanford, 9 Cir. 1974, 503 F.2d 291. In that case, an indictment had been returned against the defendants and the case was tried in February 1973. That trial resulted in a hung jury and a mistrial. Prior to the retrial, defendants moved to dismiss the indictment. Relying on the evidence adduced at the first trial, the district judge granted the motion. The Ninth Circuit dismissed the Government’s appeal, but its decision was vacated and remanded by the Supreme Court for further consideration in light of Serfass. United States v. Sanford, 1975, 421 U.S. 996, 95 S.Ct. 2392, 44 L.Ed.2d 663. The Supreme Court’s remand of Sanford can be reconciled easily with our conclusion that Jenkins requires us to dismiss the instant appeal. Prior to Serfass, cases such as United States v. Sisson, 1970, 399 U.S. 267, 90 S.Ct. 2117, 26 L.Ed.2d 608, had indicated that appeals from acquittals based on facts external to the indictment might be barred by the double jeopardy clause. The Wilson court, however, read Sisson as narrowly as possible, and indicated that the result might be different under the amended section 3731. Serfass held that the Government could appeal from a pretrial dismissal of an indictment, since at that time jeopardy had hot attached. Since the time for a Rule 29(c) motion had apparently long since elapsed in Sanford, the case no longer fell into the category of a mistrial followed by a timely acquittal. Rather, the district court’s order was simply a pretrial dismissal, and as such was subject to the Serfass decision’s rule. In the case before us, in contrast, the acquittal occurred while the original trial court still had jurisdiction over the whole case, in accordance with the Federal Rules of Criminal Procedure. We therefore reject the Government’s suggestions that the" }, { "docid": "13459199", "title": "", "text": "Wheat.) 579, 6 L.Ed. 165 (1824) (hung jury), are not barred by the Double Jeopardy Clause. Indications of circumstances falling within the Perez rationale can be found in Gori v. United States, 367 U.S. 364, 81 S.Ct. 1523, 6 L.Ed.2d 901 (1961) (mistrial granted in sole interest of defendant); Illinois v. Somerville, 410 U.S. 458, 93 S.Ct. 1066, 35 L.Ed.2d 425 (1973) (mistrial over defendant’s objection granted due to incurably defective indictment); Wade v. Hunter, 336 U.S. 684, 69 S.Ct. 834, 93 L.Ed. 974 (1949) (military tactical situation justified discontinuance of first trial). Neither the facts nor the policies expressed in the aforementioned cases apply to the present case. Defendants were not convicted at trial, nor was a mistrial declared. The situation presented herein is a trial which terminated in defendants’ favor after jeopardy had attached, before a finding of guilt by the trier of fact, and with no determination by the trial court that due process precludes a retrial or that “manifest necessity” or the ends of justice require a retrial. Further, the court specifically rejected the mistrial alternative. Although our precise question was not answered by the Supreme Court in its recent trilogy, the policies' expressed in those opinions require our conclusion that a government appeal in this case would violate the Double Jeopardy Clause of the Constitution. In United States v. Wilson, supra, the district court dismissed the indictment upon grounds of prejudicial preindictment delay after trial had terminated in a jury verdict of guilty. The Court of Appeals dismissed' a government appeal. The Supreme Court reversed. It determined that the constitutional protection against double jeopardy attaches only where there is a danger of subjecting the defendant to a second trial for the same offense. Since the district court’s dismissal could be reviewed and if reversed would result in the reinstatement of the jury verdict without subjecting defendant to a second trial, the Government was allowed to appeal. Serfass v. United States, supra, involved a pretrial dismissal. The Supreme Court held that labelling the trial court’s action an “acquittal” instead of a dismissal was without significance until" }, { "docid": "22614905", "title": "", "text": "is discharged—the Government’s argument necessarily concedes that the Double Jeopardy Clause would preclude both appeal and retrial. If, however, the judge chooses to await the outcome of the jury’s deliberations and, upon its failure to reach a verdict, acts on a timely motion for acquittal filed under Rule 29 (c) within seven days of its discharge, the Government submits that the Double Jeopardy Clause should not bar an appeal. We are not persuaded. Rule 29 contemplated no such artificial distinctions. Rather the differentiations in timing were intentionally incorporated into the Rule to afford a trial judge the maximum opportunity to consider with care a pending acquittal motion. Insofar as the Government desires an appeal to correct error, irrational behavior, or prejudice on the part of the trial judge, its interest is not dependent on the point of trial when the judge enters his Rule 29 judgment, and suffers no special prejudice by a judge’s acquittal after the jury disagrees and is discharged. And to the extent that the judge’s authority under Rule 29 is designed to provide additional protection to a defendant by filtering out deficient prosecutions, the defendant’s interest in such protection is essentially identical both before the jury is allowed to come to a verdict and after the jury is unable to reach a verdict: In either case, the defendant has neither been condemned nor exculpated by a panel of his peers and, in the absence of intervention by the trial judge, his vindication must await further action by a jury. We thus conclude that judgments under Rule 29 are to be treated uniformly and, accordingly, the Double Jeopardy Clause bars appeal from an acquittal entered under Rule 29 (c) after a jury mistrial no less than under Rule 29 (a) or (b). United States v. Sanford, 429 U. S. 14 (1976), does not dictate a contrary result. In Sanford, a jury trial ended in the declaration of a mistrial. A judgment of acquittal was never entered. Some four months later, with the second trial well into the preparatory stage, the trial court dismissed the prosecution’s indictment. Because" }, { "docid": "13270835", "title": "", "text": "and sworn, but it actually heard all the evidence both sides had to offer. Jenkins stated the general rule for appealability as follows: But it is enough for purposes of the Double Jeopardy Clause, and therefore for the determination of appealability under 18 U.S.C. § 3731, that further proceedings of some sort, devoted to the resolution of factual issues going to the elements of the offense charged, would have been required upon reversal and remand. 420 U.S. at 370, 95 S.Ct. at 1013, 43 L.Ed.2d at 259 (per Rehnquist, J.). If such additional proceedings would be required, then the double jeopardy clause forbids appeal by the Government. In the case of a mistrial followed by a timely motion for acquittal under Rule 29(c), F.R.Crim.P., which motion is granted, further proceedings devoted to the resolution of factual issues would necessarily follow a successful appeal by the Government. This distinguishes the situation where an acquittal follows a mistrial from the situation presented in Wilson, where an acquittal came after a guilty verdict, since in the latter case no further proceedings would follow a successful appeal. The Jenkins standard thus leads inescapably to the conclusion that no appeal lies from the directed verdict ordered by the court below. The Government’s last effort to avoid dismissal of the appeal relies on the Supreme Court’s action in relation to United States v. Sanford, 9 Cir. 1974, 503 F.2d 291. In that case, an indictment had been returned against the defendants and the case was tried in February 1973. That trial resulted in a hung jury and a mistrial. Prior to the retrial, defendants moved to dismiss the indictment. Relying on the evidence adduced at the first trial, the district judge granted the motion. The Ninth Circuit dismissed the Government’s appeal, but its decision was vacated and remanded by the Supreme Court for further consideration in light of Serfass. United States v. Sanford, 1975, 421 U.S. 996, 95 S.Ct. 2392, 44 L.Ed.2d 663. The Supreme Court’s remand of Sanford can be reconciled easily with our conclusion that Jenkins requires us to dismiss the instant appeal. Prior" }, { "docid": "22785171", "title": "", "text": "béfore verdict or finding if no additional or different offense is charged and if substantial rights of the defendant are not prejudiced.” At no time in the course of the first trial did either the' defense or the prosecution raise the possibility that the information might be amended under this provision. As this was a bench trial, jeopardy did not attach until the court began to hear evidence. Serfass v. United States, 420 U. S. 377, 388 (1975). Both sides assume that the District Court’s statements, made to justify denial of Lee’s motion for judgment of acquittal, that he had been “proven [sic] beyond any reasonable doubt in the world” and that there was “no question about his guilt; none whatsoever,” supra, at 26, do not amount to a general finding of guilt. We agree that the court’s comments, in the context in which they were made, cannot be viewed fairly as a general finding of guilt analogous to a jury verdict. See n. 7, infra. In a single footnote to his main brief, petitioner appears to rely on a distinction “between an action terminated by mistrial and one terminated by dismissal.” Brief for Petitioner 18 n. 25. But in the text of that brief petitioner consistently assumes that the permissibility of retrial is controlled by the same considerations in either case. Id., at 14r-25. And at oral argument, counsel conceded that “whether [the termination of the first trial] is characterized as a mis-trial or characterized as a dismissal, the result in this case must be the same.” Tr. of Oral Arg. 17. The findings and conclusions accompanying the District Court’s order left it unclear whether the court had ruled only that the intervening decision was not retroactive or had found, in addition, that the defendant’s reliance on prior law had deprived him of the required criminal intent. See 420 U. S., at 362 n. 3, and 367-368. In United States v. Wilson, 420 U. S. 332 (1975), we held that the Double Jeopardy Clause would permit a Government appeal from a post-verdict ruling because the only result of reversal" }, { "docid": "22614906", "title": "", "text": "to provide additional protection to a defendant by filtering out deficient prosecutions, the defendant’s interest in such protection is essentially identical both before the jury is allowed to come to a verdict and after the jury is unable to reach a verdict: In either case, the defendant has neither been condemned nor exculpated by a panel of his peers and, in the absence of intervention by the trial judge, his vindication must await further action by a jury. We thus conclude that judgments under Rule 29 are to be treated uniformly and, accordingly, the Double Jeopardy Clause bars appeal from an acquittal entered under Rule 29 (c) after a jury mistrial no less than under Rule 29 (a) or (b). United States v. Sanford, 429 U. S. 14 (1976), does not dictate a contrary result. In Sanford, a jury trial ended in the declaration of a mistrial. A judgment of acquittal was never entered. Some four months later, with the second trial well into the preparatory stage, the trial court dismissed the prosecution’s indictment. Because the dismissal “occurred several months after the first trial had ended in a mistrial, but before the retrial of respondents had begun,” id., at 16, the Court characterized the judge’s dismissal as “a pretrial order,” ibid., and concluded that its appealability was governed by Serfass v. United States, 420 U. S. 377 (1975). The Court’s linking of Sanford with Serfass highlights the distinctiveness of an acquittal under Rule 29 (c). In Serfass the Court carefully distinguished between appeal of a pretrial order and appeal of “ 'a legal determination on the basis of facts adduced at the trial relating to the general issue of the case.' ” 420 U. S., at 393, quoting United States v. Sisson, 399 U. S., at 290 n. 19. A Rule 29 acquittal, however, falls squarely within the latter category: By the very language of the Rule, such a judgment of acquittal plainly concludes a pending prosecution in which jeopardy has attached, following the introduction at trial of evidence on the general issue. In that circumstance we hold that “although" } ]

[ { "docid": "22068938", "title": "", "text": "of the road trips totaled within a few miles of each other — approximately the roundtrip distance between Santa Ana, California, and Yakima, Washington. Certain car rental entries were excluded because they were not sufficiently similar or were too remote in time. Based upon the relevant factors in Rule 404, the district court did not abuse its discretion by admitting this car rental evidence. See United States v. Ramirez, 176 F.3d 1179, 1181-82 (9th Cir.1999). We must give “considerable deference” to the trial court’s decision to admit evidence as probative under Rule 403. See United States v. Cordoba, 194 F.3d 1053, 1063 (9th Cir.1999). Here, the district court carefully weighed the probative value of the rental car history — to show knowledge and to rebut his defense' — • against its prejudicial effect before admitting the evidence. The district court did not abuse its discretion in deciding that the evidence of a pattern of car rentals prior to the offense charged had significant probative value that substantially out- . weighed its prejudicial effect in the determination of Murillo’s knowledge that he was transporting drugs. 3. Expert Testimony of DEA Agent. At trial, DEA Special Agent James Delaney testified about the value of the drugs found in Murillo’s rental car; the number of doses that such an amount constituted; and the modus operandi of drug traffickers. As part of his modus operandi testimony, he described the typical travel itineraries of drug couriers, why drug couriers use rental cars, and how drug traffickers do not entrust large quantities of drugs to people who are unaware that they are transporting them. Murillo contends that this evidence was impermissibly admitted because it constitutes inadmissible “drug courier profile” evidence and it does not meet the standards of reliability under Kumho Tire Co. v. Carmichael, 526 U.S. 137, 119 S.Ct. 1167, 143 L.Ed.2d 238 (1999). a. Drug Courier Profile Testimony. Murillo argues that the district court erred by allowing the prosecution to put on expert testimony consisting of a drug courier profile as substantive evidence of his guilt. The district court acknowledged that evidence of a" } ]

[ { "docid": "23659518", "title": "", "text": "States v. Allen, 425 F.3d 1231, 1235 (9th Cir.2005); Crawford v. Washington, 541 U.S. 36, 59 n. 9, 124 S.Ct. 1354, 158 L.Ed.2d 177 (2004) (“[W]e reiterate that, when the declarant appears for cross-examination at trial, the Confrontation Clause places no constraints at all on the use of his prior testimonial statements.”). Agent Arbuthnot’s testimony concerning Gibson’s testimonial statements therefore did not offend the Confrontation Clause. Second, Lindsey argues that the district court erred under the Federal Rules of Evidence in admitting Agent Arbuthnot’s statements about his interviews of Gibson as non-hearsay. A district court’s decision to admit evidence as non-hearsay is reviewed for abuse of discretion. United States v. Alvarez, 358 F.3d 1194, 1214 (9th Cir.2004) (citing United States v. Olafson, 213 F.3d 435, 441 (9th Cir.2000)). Even assuming that the district court made an error in admitting Agent Arbuthnot’s statements, the error was harmless. Other witnesses, most significantly Gibson himself, testified to the same points that Agent Arbuthnot had discussed with Gibson, including the getaway car and the identity of the robbers. We hold the error, if any, harmless because we do not harbor any “ ‘grave doubt’ ” over whether any “ ‘erroneously admitted evidence substantially affected the verdict.’ ” Id. (quoting United States v. Ellis, 147 F.3d 1131, 1134 (9th Cir.1998)). V. DISMISSING JURORS FOR CAUSE Lindsey contends that the district court committed reversible error in dismissing two jurors for cause. The district court dismissed prospective jurors 8 and 10. A district court’s decision to excuse a juror under these circumstances is reviewed for abuse of discretion. United States v. Gonzalez, 214 F.3d 1109, 1112 (9th Cir.2000) (citing United States v. Alexander, 48 F.3d 1477, 1484 (9th Cir. 1995)). We need not reach the issue of whether the district court abused its discretion because the error, if any, does not warrant reversal. Even if the district court had abused its discretion, the dis missal of two jurors did not result in a prejudiced jury panel. In United States v. Mendoza, we held that the district court had abused its discretion by making no effort to determine" }, { "docid": "14213972", "title": "", "text": "discretion in admitting this testimony, because it was relevant, probative, and not unduly prejudicial in light of Sepulveda-Barraza’s defense theory that he did not know that he was transporting drugs, and because he opened the door to the testimony by providing notice that he intended to call an expert witness to testify that drug trafficking organizations sometimes utilize unknowing couriers to smuggle drugs across the border. I On September 11, 2007, Sepulveda-Barraza was stopped by government inspectors at a port of entry in Nogales, Arizona. He claimed that he was driving across the border to run errands at Wal-Mart, but was only carrying $21 in United States currency. Because he seemed a “little nervous” and a “little too friendly,” an inspector referred him for secondary inspection. At secondary inspection, officers discovered eleven packages of cocaine hidden in the seats of his vehicle. A grand jury indicted Sepulveda-Barraza on one count of importation of cocaine in violation of 21 U.S.C. §§ 952(a) and 960(a)(1), (b)(l)(B)(ii) and one count of possession with intent to distribute cocaine in violation of 21 U.S.C. § 841(a)(1), (b)(l)(A)(ii)(II). The first trial ended in a deadlocked jury and mistrial. Before the second trial, defense counsel filed a notice that he intended to call an expert witness, retired FBI Special Agent Erik Godtlibsen, to testify that drug trafficking organizations sometimes use unknowing couriers (known as “blind mules”) to smuggle drugs across the border. The government then filed a notice of its intent to call Immigration and Customs Enforcement (“ICE”) Supervisory Special Agent Juan Bortfeld to provide expert testimony regarding the control of drug couriers by drug trafficking organizations, the street value of the cocaine found in Sepulveda-Barraza’s vehicle, and the implausibility that drug traffickers would entrust valuable drug loads to an unknowing individual. Defense counsel filed a motion in limine to exclude Bortfeld’s testimony regarding these issues, but the district court denied the motion in reliance on our decision in United States v. Murillo, 255 F.3d 1169, 1176- 78 (9th Cir.2001), overruled on other grounds by Muehler v. Mena, 544 U.S. 93, 125 S.Ct. 1465, 161 L.Ed.2d 299" }, { "docid": "23466673", "title": "", "text": "of removal. Calderon-Segura originally raised his objection in a motion in limine, contending that fingerprint identification testimony does not satisfy the test of evidentiary reliability or scientific validity required by Federal Rule of Evidence 702 and Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579, 590 n. 9, 593, 113 S.Ct. 2786, 125 L.Ed.2d 469 (1993), and is unduly prejudicial under Federal Rule of Evidence 403. The district court reviewed Calderon-Seg-ura’s documentary evidence and heard oral argument on the motion, but it denied both his request for a full “Daubert hearing” and the motion itself. The court explained that the motion in limine was based almost exclusively on evidence demonstrating the unreliability of latent fingerprint identification, whereas this case involved only the examination of two inked fingerprints, the reliability and admissibility of which is long-established. As the expert testified, a latent print must be developed or “dusted” using chemicals and then lifted from whatever surface it happens to be on to enable examination, whereas an inked fingerprint is taken under controlled circumstances using an ink pad and white paper and it produces a black and white image that is sufficient for examination. But while the court denied the motion to exclude, it did afford the defense the opportunity to voir dire the government’s expert before trial and to cross-examine him during trial regarding his qualifications and his comparison of the exemplar fingerprints in this ease. We review the district court’s decision to admit expert testimony for an abuse of discretion. United States v. Alatorre, 222 F.3d 1098, 1100 (9th Cir.2000). This includes not only the court’s ultimate admissibility determination under Daubert and Rule 702, but also its decisions regarding the type of proceedings required to conduct the gatekeeping inquiry in a particular case. See id. at 1101, 1105. We find no abuse of discretion here. Calderon-Segura’s contention that the demonstrated problems with latent fingerprint identification apply equally to exemplar fingerprints is unsupported by the evidence submitted in support of his motion in limine. Cf. Daubert, 509 U.S. at 591, 113 S.Ct. 2786 (stating that “scientific validity for one purpose is" }, { "docid": "16172311", "title": "", "text": "is no need for a court to determine whether it satisfies predicate evidentiary standards pertaining to another rule. See United States v. Marshall, 526 F.2d 1349, 1360 (9th Cir.1975). By properly determining that the evidence was not admissible under Rule 704(b), the court obviated the need to conduct an evidentiary analysis under Rule 702 or Rule 403. Ill Campos also argues that the district court erred by admitting testimony by a government expert that marijuana trafficking organizations do not use “unknowing couriers.” Before the district court, she argued in a motion in limine that the testimony constituted improper “drug courier profile” evidence. We review this issue for an abuse of discretion. See United States v. Beltran-Rios, 878 F.2d 1208, 1210 (9th Cir.1989). Because “testimony that drug traffickers do not entrust large quantities of drugs to unknowing transporters is not drug courier profile testimony,” Cordoba, 104 F.3d at 229-30, the district court did not abuse its discretion in admitting it. On appeal, Campos also argues that the testimony was also improperly admitted as “ultimate issue” testimony under Rule 704(b). Because Campos failed to raise a specific objection to the testimony at trial based on Rule 704(b), we review the district court’s decision in this respect only for plain error affecting substantial rights. See State of Arizona v. Elmer, 21 F.3d 331, 334 (9th Cir.1994); United States v. Muniz, 684 F.2d 634, 640 (9th Cir.1982); Fed.R.Crim.P. 52(b). In order to constitute “plain error,” the error must be “plain” or clear on its face under current law and must affect a substantial right. See United States v. Olano, 507 U.S. 725, 782-34, 113 S.Ct. 1770, 123 L.Ed.2d 508 (1993). Although we have not yet approved of the use of such expert testimony in non-complex cases, we have not disapproved of it. Thus, because such evidence may be admitted in complex cases, see Cordoba, 104 F.3d at 230, the district court did not plainly err in admitting it here, see United States v. Webb, 115 F.3d 711, 720-22 (9th Cir.1997) (Jenkins, J. concurring). We do not reach the question of whether such expert testimony" }, { "docid": "14213986", "title": "", "text": "386 F.3d 1234, 1246 (9th Cir.2004). Unlike the expert testimony at issue in Vallejo, 237 F.3d at 1017, the government did not introduce Bortfeld’s testimony to insinuate that Sepulveda-Barraza was connected to a large drug trafficking organization; Bortfeld “did not extrapolate the various roles indi viduals might play in hypothetical drug trafficking organizations, nor did he imply that [the defendant] participated in a large-scale operation.” Murillo, 255 F.3d at 1177. Moreover, Sepulveda-Barraza opened the door to such testimony by noticing his intent to call Agent Godtlibsen to testify that “drug cartels” sometimes use “blind mule” couriers to smuggle drugs across the border and then eliciting such testimony at trial. Indeed, the close similarity between Agent Godtlibsen’s testimony and Agent Bortfeld’s testimony further undercuts Sepulveda-Barraza’s claim of unfair prejudice. Accordingly, we conclude that Bortfeld’s testimony was properly admitted because it was relevant, probative, and not unduly prejudicial. See Fed.R.Evid. 402, 403. Indeed, based on our examination of the totality of the “surrounding facts, circumstances, and issues,” Hinkson, 585 F.3d at 1267 (quoting R.B. Matthews, Inc. v. Transamerica Transp. Serv., Inc., 945 F.2d 269, 272 (9th Cir.1991)), the district court’s decision to admit Bortfeld’s testimony was not “illogical, implausible, or without support in inferences that may be drawn from facts in the record.” Id. at 1251. Therefore, the district court did not abuse its discretion in ruling that the testimony was admissible. AFFIRMED." }, { "docid": "23214403", "title": "", "text": "relevant evidence in response to an objection under Rule 403.” United States v. Balter, 91 F.3d 427, 442 (3d Cir.1996). We have also stated: “If judicial restraint is ever desirable, it is when a Rule 403 analysis of a trial court is reviewed by an appellate tribunal.” United States v. Long, 574 F.2d 761, 767 (3d Cir.1978). We review for abuse of discretion. United States v. Driggs, 823 F.2d 52, 54 (3d Cir.1987). We agree with the District Court that the photographs had value insofar as they were the best evidence of mutilation available, and we see nothing in the record to indicate that they were unfairly prejudicial. Therefore, we find that the District Court did not abuse its discretion. See In re Air Crash Disaster Near New Orleans, 767 F.2d 1151, 1154 (5th Cir.1985) (finding no abuse of discretion in admitting photographs of bodies of plane crash victims with third degree burns where conscious pain and suffering at issue); United States v. Brady, 579 F.2d 1121, 1129 (9th Cir.1978) (noting that photos from crime scene only inadmissible when picture of such “gruesome and horrifying nature” that danger of inflaming jury outweighed its probative value). C. Rule 16 Challenge: Failure to Supply Written Summary of Expert Testimony The government called FBI fingerprint specialist Kenneth Getz to offer expert testimony that the fingerprint found at the Orta home was Navarro’s. The defense objected to his testimony at trial on the ground that it did not receive the required information in advance pursuant to Fed. R.Crim. Pro. 16(a)(1)(E), which states: At the defendant’s request, the government shall disclose to the defendant a written summary of testimony that the government intends to use under Rules 702, 703, or 705 of the Federal Rules of Evidence during its case-in-chief at trial.... The summary provided under this subdivision shall describe the witnesses’ opinions, the bases and the reasons for those opinions, and the witnesses’ qualifications. Id. The District Court agreed with the government’s argument that the defense’s failure to raise the issue earlier and “trigger the resources of the court ... [did] not sit well" }, { "docid": "14213979", "title": "", "text": "quantities of drugs to unknowing transporters”). Second, testimony on the structure and operations of drug trafficking organizations is admissible under certain circumstances, such as when a defendant opens the door to such evidence. See, e.g., United States v. Pineda-Torres, 287 F.3d 860, 865 (9th Cir.2002) (“We have held that limited drug structure testimony is admissible in drug importation cases when the defense opens the door by introducing evidence that the government did not attempt to lift fingerprints.”). Neither Vallejo nor its progeny supports the establishment of a per se rule that expert testimony regarding the operation and structure of drug trafficking organizations or the modus operandi of couriers involved in drug trafficking organizations is inadmissible. Indeed, such a rule would be inconsistent with the case-by-case approach mandated by Federal Rule of Evidence 403. See United States v. Hinkson, 585 F.3d 1247, 1267 (9th Cir.2009) (en banc) (observing that “the considerations arising under Rule 403 are susceptible only to case-by-case determinations” (internal quotation marks omitted)). We rejected a similar argument in United States v. Valencia-Amezcua, 278 F.3d 901 (9th Cir.2002). In that case, the defendant (like Sepulveda-Barraza) argued that Vallejo “requires in every case the exclusion of expert testimony on the structure of drug organizations where, as here, the defendant is not charged with conspiracy.” Id. at 909. In declining to accept this argument, we noted that Vallejo cannot “reasonably be read so broadly,” because we must independently determine whether the expert testimony is relevant and probative on a case-by-case basis. Id. at 909 n. 5. Contrary to Sepulveda-Barraza’s argument, Vallejo merely held, consistent with long-established precedent, that a district court abuses its discretion by admitting evidence that has no relevance to any matter to be proved at trial. In Vallejo, the defendant was arrested at the border when forty kilograms of marijuana were found hidden in his car and was charged with importing and possession with intent to distribute marijuana. 237 F.3d at 1012— 13. At trial, the government introduced “[ejxpert testimony regarding the structure of drag trafficking organizations and the wages earned by drug couriers.” Id. at 1013. However," }, { "docid": "16172320", "title": "", "text": "F.3d 1160, 1167 (9th Cir.2000) (quoting United States v. Tisor, 96 F.3d 370, 376 (9th Cir.1996) (quoting Olano, 507 U.S. at 734, 113 S.Ct. 1770)). We must examine “the alleged error in the context of the entire record to determine whether it rises to the level of ‘plain error.’ ” United States v. Wallace, 848 F.2d 1464, 1473 (9th Cir.1988); see also United States v. Campbell, 42 F.3d 1199, 1204 (9th Cir.1994) (“In applying the plain error standard we consider all circumstances at trial including the strength of the evidence against the defendant.”). We will not reverse a conviction “unless the error seriously affect[s] the fairness, integrity or public reputation of the judicial proceedings.” Olano, 507 U.S. at 736, 113 S.Ct. 1770 (alteration in original). Proof of the defendant’s “actual innocence,” however, is not required. See id. II. The majority opinion summarily concludes that the district court’s decision to admit Agent Darvas’s testimony concerning a drug courier’s knowledge could not constitute an error that is “ ‘plain’ or ‘clear on its face’ [under Rule 704(b) ] because such evidence may be admitted in complex cases.” Majority Op. at 713 (citing United States v. Cordoba, 104 F.3d 225, 230 (9th Cir.1997); United States v. Webb, 115 F.3d 711, 720-22 (9th Cir.1997) (Jenkins, J. concurring)). The majority is mistaken for three reasons: (1) Expert testimony that violates Rule 704(b) is never admissible; (2) Expert testimony that speaks directly to the ultimate issue of the defendant’s knowledge is not admissible as generic “modus operandi” evidence regardless of the complexity of a case; and (3) Expert testimony that does not “assist the trier of fact to understand the evidence” is never admissible under Rule 702. A. Inadmissibility Under Rule 704(b) This circuit has never held that an expert may testify to a drug courier’s knowledge when doing so violates Rule 704(b). This circuit has only held that under Rule 403 a trial judge does not abuse his or her discretion in admitting expert “modus operandi” testimony bearing on the knowledge of drug couriers in complex criminal cases. See Cordoba, 104 F.3d at 229. The" }, { "docid": "20511075", "title": "", "text": "210 months’ imprisonment for Armando. II. Franks’ Testimony The defendants contend that Detective Franks’ testimony as both a gang expert and a percipient witness to the events in his investigation violated their Confrontation Clause rights and Federal Rule of Evidence 403. We review the district court’s rulings on the Confrontation Clause de novo and on Rule 403 for abuse of discretion. See United States v. Gomez, 725 F.3d 1121, 1125 (9th Cir.2013); United States v. Hankey, 203 F.3d 1160, 1166-67 (9th Cir.2000). We hold that admitting Franks’ gang testimony did not constitute reversible error. A. Confrontation Clause The Supreme Court held in Crawford v. Washington, 541 U.S. 36, 124 S.Ct. 1354, 158 L.Ed.2d 177 (2004), that a defendant’s Confrontation Clause rights are violated by the admission of “testimonial statements of a witness who did not appear at trial unless he was unavailable to testify, and the defendant had ... a prior opportunity for cross-examination.” Id. at 53-54, 124 S.Ct. 1354. Nevertheless, an expert witness may offer opinions based on such inadmissible testimonial hearsay, as well as any other form of inadmissible evidence, if “experts in the particular field would reasonably rely on those kinds of facts or data in forming an opinion on the subject.” Fed.R.Evid. 703. Moreover, the expert may disclose to the jury the inadmissible evidence relied on in forming his opinion “if [its] probative value in helping the jury evaluate the opinion substantially outweighs [its] prejudicial effect.” Id. Under these rules, there is generally no Crawford problem when an expert “appli[es] his training and experience to the sources before him and reach[es] an independent judgment.” Gomez, 725 F.3d at 1129 (quoting United States v. Johnson, 587 F.3d 625, 635 (4th Cir.2009)). But an expert exceeds the bounds of permissible expert testimony and violates a defendant’s Confrontation Clause rights when he “is used as little more than a conduit or transmitter for testimonial hearsay, rather than as a true expert whose considered opinion sheds light on some specialized factual situation.” Id. (quoting Johnson, 587 F.3d at 635). Accordingly, the key question for determining whether an expert has complied" }, { "docid": "14213976", "title": "", "text": "between $154,000 and $183,000 in the Tucson area. Defense counsel did not object to Bortfeld’s testimony during direct examination. During redirect, the prosecutor asked Agent Bortfeld whether, given that the drugs being smuggled were worth hundreds of thousands of dollars, a drug trafficker was likely to use an unknowing drug courier in order to avoid paying a fee to a courier who understood the risks. Defense counsel objected to the question as “beyond the scope,” but the court overruled the objection. Bortfeld testified that “when the value of the narcotics or the drugs are in the hundred thousand dollar range or above, the cost of a driver is minimal” and so “there’s an inherent benefit to making the payment” and having a reliable means of smuggling the load to the intended destination. At the end of the second trial, the jury-convicted Sepulveda-Barraza on both counts, and the district court sentenced him to 120 months of incarceration and 60 months of supervised release. II On appeal, Sepulveda-Barraza argues that the district court abused its discretion in admitting Bortfeld’s testimony. Before reaching this issue, we must determine whether to review the district court’s admission of Bortfeld’s testimony for abuse of discretion or plain error. Sepulveda-Barraza argues that he objected to Bortfeld’s testimony in his motion in limine, and had no obligation to renew his objection at trial. We agree. “Once the court makes a definitive ruling on the record admitting or excluding evidence, either at or before trial, a party need not renew an objection or offer of proof to preserve a claim of error for appeal.” Fed.R.Evid. 103(a). A district court’s decision that the probative value of evidence exceeds its potential for unfair prejudice, and the court’s decision to admit that evidence, are reviewed for abuse of discretion. United States v. Curtin, 489 F.3d 935, 943 (9th Cir.2007) (en banc). We next turn to the question of whether the district court erred in allowing Bortfeld’s testimony. According to Sepulveda-Barraza, United States v. Vallejo established the per se rule that the government may not introduce expert testimony describing the “general structure and" }, { "docid": "23301527", "title": "", "text": "was properly admitted under Rule 609(a)(1), any error in admitting the conviction under Rule 404(b) is harmless unless the record reflects evidence that the defendant would not have testified but for the court’s Rule 404(b) ruling. See United States v. Smith, 49 F.3d 475, 478 (8th Cir.1995). m. Cordoba also appeals the district court’s admission of expert testimony concerning the modus operandi of drug traffickers. At trial, the government’s expert testified that sophisticated narcotics traffickers do not entrust 300 kilograms of cocaine to someone who does not know what he is transporting. We review a district court’s decision to admit expert testimony for abuse of discretion. United States v. VonWillie, 59 F.3d 922, 928-29 (9th Cir.1995). A trial court abuses its discretion when it bases its decision on an erroneous view of the law. United States v. Rahm, 993 F.2d 1405, 1410 (9th Cir.1993). If specialized knowledge will assist the trier of fact in understanding the evidence or determining an issue, a qualified expert witness may provide opinion testimony on the issue in question. Fed.R.Evid. 702. The expert testimony that drug traffickers do not use unknowing transporters was clearly probative of Cordoba’s knowledge that he possessed narcotics. See United States v. Castro, 972 F.2d 1107, 1111 (9th Cir.1992) (“[EJxperts testified that the amount of cocaine, valued in the millions of dollars, would have never been entrusted to an unknowing dupe. Based on that testimony the jury reasonably could have found that Castro knowingly possessed the cocaine.”), cert. denied, 507 U.S. 944, 113 S.Ct. 1350, 122 L.Ed.2d 731 (1993). The district court did not abuse its discretion in finding that the probative value of the expert’s testimony outweighed any prejudicial effect. Cordoba further contends that the expert testimony constituted improper drug courier profile testimony. A drug courier profile is a somewhat informal compilation of characteristics believed to be typical of persons unlawfully carrying narcotics, commonly used by agents as a basis for reasonable suspicion to stop and question a suspect. United States v. Lui, 941 F.2d 844, 847 (9th Cir.1991). Drug courier profile testimony is inherently prejudicial and admissible only in" }, { "docid": "14213984", "title": "", "text": "no such limitation on the scope of its holding. 255 F.3d at 1176-77. In sum, expert testimony on drug trafficking organizations and the behavior of unknowing couriers is admissible when relevant, probative of a defendant’s knowledge, and not unfairly prejudicial under the standard set forth in the Federal Rules of Evidence. See id.; Cordoba, 104 F.3d at 229-30 (citing United States v. Lim, 984 F.2d 331, 334-35 (9th Cir.1993)). Although our deference to the district court’s broad discretion has limits, see Vallejo, 237 F.3d at 1017, we consider a district court’s rulings on a case-by-case basis, not pursuant to per se rules, Hinkson, 585 F.3d at 1267. Ill We now turn to the question of whether the district court abused its discretion in determining that Agent Bortfeld’s expert testimony was relevant, probative, and not unduly prejudicial. Here Agent Bortfeld’s expert opinion that the drugs in Sepulveda-Barraza’s car were worth over $150,000, and that drug trafficking organizations do not normally use unwitting couriers due to the value of the drugs involved, “went right to the heart of [Sepulveda-Barraza’s] defense that he was simply an unknowing courier.” Murillo, 255 F.3d. at 1177. Because Sepulveda-Barraza provided notice that he would call an expert to testify regarding drug trafficking organizations’ use of unknowing couriers, Bortfeld’s testimony made it less probable that Sepulveda-Barraza was acting as an unknowing courier, and therefore the evidence was relevant. See id. at 1177-78. To the extent Bortfeld’s testimony regarding his background and experience investigating drug trafficking organizations touched on the structure and operations of drug trafficking organizations, it was also relevant to establish that his expert opinion “rests on a reliable foundation and is relevant to the task at hand.” Daubert v. Merrell Dow Pharms., 509 U.S. 579, 597, 113 S.Ct. 2786, 125 L.Ed.2d 469 (1993). Therefore, the district court did not abuse its discretion in concluding that Bortfeld’s expert testimony was relevant and probative. Nor did the district court abuse its discretion in ruling that the probative value of the evidence was not “substantially outweighed by the danger of unfair prejudice.” Fed.R.Evid. 403; see United States v. Ramirez-Robles," }, { "docid": "3081956", "title": "", "text": "argues that the admission of Agent Banos’ testimony violated Federal Rule of Evidence 704(b), Federal Rule of Evidence 403, and the Confrontation Clause. We disagree. The expert testimony here did not violate Rule 704(b), because the prosecutor’s questions “only evoked expert testimony as to Agent [Banos’] experience with drug traffickers and not any ‘explicit opinion’ of [Defendant’s] state of mind or knowledge of his transportation of drugs.” United States v. Murillo, 255 F.3d 1169, 1178 (9th Cir.2001), overruled on other grounds as recognized by United States v. Mendez, 476 F.3d 1077, 1080 (9th Cir. 2007). Although Agent Banos answered many questions concerning his experience, Defendant argues that, because a sole question did not include the limiting phrase “in your experience,” that question ran afoul of Rule 704(b). Read in proper context, however, that question—like all the others—asked for Agent Banos’ expert opinion, in his experience. Defendant’s Rule 403 challenge also fails. The district court is not required to “mechanically recite Rule 403’s requirements before admitting evidence.” United States v. Ono, 918 F.2d 1462, 1465 (9th Cir.1990) (internal quotation marks omitted). “It is enough that this court can conclude, based on a review of the record, that the district court considered Rule 403’s requirements.” Id. In our view, the hearing transcript shows that the district court fully and carefully considered all the issues and conducted the necessary Rule 403 balancing. Nor did the district court err in its assessment: The evidence was probative and relevant, and it was not unduly prejudicial. Defendant’s Confrontation Clause challenge requires more discussion. In Crawford v. Washington, 541 U.S. 36, 53-54, 124 S.Ct. 1354, 158 L.Ed.2d 177 (2004), the Supreme Court held that the Confrontation Clause bars the “admission of testimonial statements of a witness who did not appear at trial unless he was unavailable to testify, and the defendant had had a prior opportunity for cross-examination.” Although we have not discussed at length the Confrontation Clause in the context of a testifying expert witness, our sister circuits have sketched the broad contours of the doctrine: An expert witness’s reliance on evidence that Crawford would bar" }, { "docid": "14213978", "title": "", "text": "operations of drug trafficking organizations” because the introduction of such testimony inevitably creates the implication that the defendant “had knowledge of how the entire organization operated, and thus knew he was carrying the drugs.” 237 F.3d 1008, 1012, 1017 (9th Cir.2001), amended by 246 F.3d 1150 (9th Cir.2001). Moreover, Sepulveda-Barraza urges us to extend the rationale of Vallejo, and hold that an expert’s testimony that a drug trafficking operation is unlikely to use an unknowing drug courier is always inadmissible in a non-complex case such as this one. Because Bortfeld’s testimony addressed both issues, Sepulveda-Barraza argues, the district court abused its discretion in admitting it. We disagree. First, Agent Bortfeld’s testimony pertained primarily to the modus operandi of drug couriers, which falls outside the scope of Vallejo. See 246 F.3d at 1150 n. 3 (expressly stating that the court was “not addressing] the admissibility of [unknowing courier] testimony” because Vallejo “does not involve the Government’s use of ‘unknowing courier’ testimony, in which a law enforcement official testifies that certain drug traffickers do not entrust large quantities of drugs to unknowing transporters”). Second, testimony on the structure and operations of drug trafficking organizations is admissible under certain circumstances, such as when a defendant opens the door to such evidence. See, e.g., United States v. Pineda-Torres, 287 F.3d 860, 865 (9th Cir.2002) (“We have held that limited drug structure testimony is admissible in drug importation cases when the defense opens the door by introducing evidence that the government did not attempt to lift fingerprints.”). Neither Vallejo nor its progeny supports the establishment of a per se rule that expert testimony regarding the operation and structure of drug trafficking organizations or the modus operandi of couriers involved in drug trafficking organizations is inadmissible. Indeed, such a rule would be inconsistent with the case-by-case approach mandated by Federal Rule of Evidence 403. See United States v. Hinkson, 585 F.3d 1247, 1267 (9th Cir.2009) (en banc) (observing that “the considerations arising under Rule 403 are susceptible only to case-by-case determinations” (internal quotation marks omitted)). We rejected a similar argument in United States v. Valencia-Amezcua, 278" }, { "docid": "14213983", "title": "", "text": "se rule of inadmissibility. As noted above, Sepulveda-Barraza makes the further argument that we should extend our existing case law to create a rule that testimony about the use of unknowing couriers is per se inadmissible in a non-complex drug trafficking case. We decline this invitation. Testimony regarding the use of unknowing couriers by drug trafficking organizations is a subset of testimony about drug trafficking operations generally. Accordingly, for the reasons explained above, such evidence is admissible under the broad, case-by-case standard of Rule 403. See, e.g., United States v. Campos, 217 F.3d 707, 712-13 (9th Cir.2000); United States v. Cordoba, 104 F.3d 225, 229-30 (9th Cir.1997). In fact, we upheld the admission of testimony regarding the modus operandi of drug couriers in Murillo, a non-complex case. See McGowan, 274 F.3d at 1254-55 (characterizing Murillo as “a non-complex, non-conspiracy case”). While Sepulveda-Barraza argues that Murillo upheld the admissibility of drug courier modus operandi only because the defendant had argued in his defense at trial that no fingerprints were found on the drug packages, Murillo imposed no such limitation on the scope of its holding. 255 F.3d at 1176-77. In sum, expert testimony on drug trafficking organizations and the behavior of unknowing couriers is admissible when relevant, probative of a defendant’s knowledge, and not unfairly prejudicial under the standard set forth in the Federal Rules of Evidence. See id.; Cordoba, 104 F.3d at 229-30 (citing United States v. Lim, 984 F.2d 331, 334-35 (9th Cir.1993)). Although our deference to the district court’s broad discretion has limits, see Vallejo, 237 F.3d at 1017, we consider a district court’s rulings on a case-by-case basis, not pursuant to per se rules, Hinkson, 585 F.3d at 1267. Ill We now turn to the question of whether the district court abused its discretion in determining that Agent Bortfeld’s expert testimony was relevant, probative, and not unduly prejudicial. Here Agent Bortfeld’s expert opinion that the drugs in Sepulveda-Barraza’s car were worth over $150,000, and that drug trafficking organizations do not normally use unwitting couriers due to the value of the drugs involved, “went right to the heart" }, { "docid": "16172310", "title": "", "text": "of no account. Polygraph tests require the examiner to measure and interpret a set of “physiological correlates of anxiety” and, as described by a four-member plurality of the Supreme Court, to “offer[ ] an opinion to the jury about whether the witness — often, as in this case, the accused — was deceptive in answering questions about the very matters at issue in the trial.” United States v. Scheffer, 523 U.S. 303, 313, 118 S.Ct. 1261, 140 L.Ed.2d 413 (1998). There is no principled distinction in this case — as elicited in the dialogue between the district court and Campos’ counsel — between the testimony of Campos’ polygraph expert regarding her physiological responses to the questions posed during the examination and the conclusion from that testimony that she did not “know” that the van contained a significant amount of marijuana. Nor did the district court err in failing to conduct a Daubert hearing to determine whether the polygraph evidence was admissible under Rule 702. If evidence is inadmissible by application of one evidentiary rule, there is no need for a court to determine whether it satisfies predicate evidentiary standards pertaining to another rule. See United States v. Marshall, 526 F.2d 1349, 1360 (9th Cir.1975). By properly determining that the evidence was not admissible under Rule 704(b), the court obviated the need to conduct an evidentiary analysis under Rule 702 or Rule 403. Ill Campos also argues that the district court erred by admitting testimony by a government expert that marijuana trafficking organizations do not use “unknowing couriers.” Before the district court, she argued in a motion in limine that the testimony constituted improper “drug courier profile” evidence. We review this issue for an abuse of discretion. See United States v. Beltran-Rios, 878 F.2d 1208, 1210 (9th Cir.1989). Because “testimony that drug traffickers do not entrust large quantities of drugs to unknowing transporters is not drug courier profile testimony,” Cordoba, 104 F.3d at 229-30, the district court did not abuse its discretion in admitting it. On appeal, Campos also argues that the testimony was also improperly admitted as “ultimate issue” testimony" }, { "docid": "14213977", "title": "", "text": "admitting Bortfeld’s testimony. Before reaching this issue, we must determine whether to review the district court’s admission of Bortfeld’s testimony for abuse of discretion or plain error. Sepulveda-Barraza argues that he objected to Bortfeld’s testimony in his motion in limine, and had no obligation to renew his objection at trial. We agree. “Once the court makes a definitive ruling on the record admitting or excluding evidence, either at or before trial, a party need not renew an objection or offer of proof to preserve a claim of error for appeal.” Fed.R.Evid. 103(a). A district court’s decision that the probative value of evidence exceeds its potential for unfair prejudice, and the court’s decision to admit that evidence, are reviewed for abuse of discretion. United States v. Curtin, 489 F.3d 935, 943 (9th Cir.2007) (en banc). We next turn to the question of whether the district court erred in allowing Bortfeld’s testimony. According to Sepulveda-Barraza, United States v. Vallejo established the per se rule that the government may not introduce expert testimony describing the “general structure and operations of drug trafficking organizations” because the introduction of such testimony inevitably creates the implication that the defendant “had knowledge of how the entire organization operated, and thus knew he was carrying the drugs.” 237 F.3d 1008, 1012, 1017 (9th Cir.2001), amended by 246 F.3d 1150 (9th Cir.2001). Moreover, Sepulveda-Barraza urges us to extend the rationale of Vallejo, and hold that an expert’s testimony that a drug trafficking operation is unlikely to use an unknowing drug courier is always inadmissible in a non-complex case such as this one. Because Bortfeld’s testimony addressed both issues, Sepulveda-Barraza argues, the district court abused its discretion in admitting it. We disagree. First, Agent Bortfeld’s testimony pertained primarily to the modus operandi of drug couriers, which falls outside the scope of Vallejo. See 246 F.3d at 1150 n. 3 (expressly stating that the court was “not addressing] the admissibility of [unknowing courier] testimony” because Vallejo “does not involve the Government’s use of ‘unknowing courier’ testimony, in which a law enforcement official testifies that certain drug traffickers do not entrust large" }, { "docid": "14213985", "title": "", "text": "of [Sepulveda-Barraza’s] defense that he was simply an unknowing courier.” Murillo, 255 F.3d. at 1177. Because Sepulveda-Barraza provided notice that he would call an expert to testify regarding drug trafficking organizations’ use of unknowing couriers, Bortfeld’s testimony made it less probable that Sepulveda-Barraza was acting as an unknowing courier, and therefore the evidence was relevant. See id. at 1177-78. To the extent Bortfeld’s testimony regarding his background and experience investigating drug trafficking organizations touched on the structure and operations of drug trafficking organizations, it was also relevant to establish that his expert opinion “rests on a reliable foundation and is relevant to the task at hand.” Daubert v. Merrell Dow Pharms., 509 U.S. 579, 597, 113 S.Ct. 2786, 125 L.Ed.2d 469 (1993). Therefore, the district court did not abuse its discretion in concluding that Bortfeld’s expert testimony was relevant and probative. Nor did the district court abuse its discretion in ruling that the probative value of the evidence was not “substantially outweighed by the danger of unfair prejudice.” Fed.R.Evid. 403; see United States v. Ramirez-Robles, 386 F.3d 1234, 1246 (9th Cir.2004). Unlike the expert testimony at issue in Vallejo, 237 F.3d at 1017, the government did not introduce Bortfeld’s testimony to insinuate that Sepulveda-Barraza was connected to a large drug trafficking organization; Bortfeld “did not extrapolate the various roles indi viduals might play in hypothetical drug trafficking organizations, nor did he imply that [the defendant] participated in a large-scale operation.” Murillo, 255 F.3d at 1177. Moreover, Sepulveda-Barraza opened the door to such testimony by noticing his intent to call Agent Godtlibsen to testify that “drug cartels” sometimes use “blind mule” couriers to smuggle drugs across the border and then eliciting such testimony at trial. Indeed, the close similarity between Agent Godtlibsen’s testimony and Agent Bortfeld’s testimony further undercuts Sepulveda-Barraza’s claim of unfair prejudice. Accordingly, we conclude that Bortfeld’s testimony was properly admitted because it was relevant, probative, and not unduly prejudicial. See Fed.R.Evid. 402, 403. Indeed, based on our examination of the totality of the “surrounding facts, circumstances, and issues,” Hinkson, 585 F.3d at 1267 (quoting R.B. Matthews, Inc. v." }, { "docid": "420986", "title": "", "text": "respect to the admission of evidence, Palacios first argues that the district court abused its discretion by permitting Sergeant George Norris to testify as an expert, contending that through his testimony, Norris acted as a conduit for testimonial hearsay, thereby violating Palacios’s rights under the Confrontation Clause. Second, Palacios asserts that the district court abused its discretion by admitting evidence of his prior bad acts, claiming that the government failed to give adequate notice of its intent to introduce such evidence. Third, Palacios argues that the district court abused its discretion by admitting the testimony of Palacios’s cellmate Garcia-Martinez, contending that Garcia-Martinez “acted as an agent of the government” when he discussed MS-13 with Palacios. Appellant’s Br. 72. “We review for abuse of discretion a trial court’s decision concerning the admissibility of evidence.” United States v. Summers, 666 F.3d 192, 197 (4th Cir.2011). We will not find that a district court abused its discretion “unless its ruling was arbitrary and irrational.” Id. (quotation marks omitted). “We review de novo, however, an evidentiary ruling implicating the Confrontation Clause.” Id. 1. We first consider Palacios’s contention that the district court abused its discretion by admitting the expert testimony of Sergeant Norris. Palacios argues that Norris’s testimony contained inadmissible hearsay and that Norris’s use of such hearsay violated Palacios’s rights under the Confrontation Clause of the Sixth Amendment, as interpreted by Crawford v. Washington, 541 U.S. 36, 124 S.Ct. 1354, 158 L.Ed.2d 177 (2004). We disagree. Federal Rule of Evidence 703 allows an expert witness to “base an opinion on facts or data in the case that the expert has been made aware of or personally observed.” This includes inadmissible evidence — including hearsay — “[i]f experts in the particular field would reasonably rely on those kinds of facts or data in forming an opinion on the subject.” Fed.R.Evid. 703; see also United States v. Leeson, 453 F.3d 631, 637 (4th Cir.2006) (holding that a district court did not abuse its discretion by admitting expert testimony based on hearsay when it had been “sufficiently established” that such hearsay statements were the type of" }, { "docid": "22466205", "title": "", "text": "we affirmed the admission of statements even though the government failed to produce rough interview notes. Id. The court rejected a Confrontation Clause challenge because (1) the defendant “had a meaningful opportunity to cross-examine [the witness], even without the notes,” and (2) had not shown prejudice. Id. Here, Appellants were able to cross-examine all the witnesses. They have made no showing that the notes (1) contained anything exculpatory or (2) would have affected the outcome of the trial. Thus, they have not shown any prejudice due to the destruction of the rough notes, especially where Appellants received Agent Starkey’s formal reports, which the record indicates contained all the information in the rough notes. Therefore, we conclude that the district court was not required to dismiss the indictment or strike any testimony, and thus did not abuse its discretion. IV. THE DISTRICT COURT DID NOT ABUSE ITS DISCRETION IN ALLOWING EXPERT TESTIMONY REGARDING DRUG JARGON. Appellant Johnson challenges the district court’s ruling on his objection to Detective Labbe’s testimony about the meaning of coded language used in the wiretap recordings. At trial, Johnson argued that Labbe was not qualified and that his testimony was unreliable, in violation of Daubert v. Merrell Dow Pharmaceuticals, 509 U.S. 579, 113 S.Ct. 2786, 125 L.Ed.2d 469 (1993). We review the district court’s decision to admit expert testimony for abuse of discretion. United States v. Calderon-Segura, 512 F.3d 1104, 1109 (9th Cir.2008). Rule 702 of the Federal Rules of Evidence allows for expert, opinion testimony by a “witness qualified as an expert by knowledge, skill, experience, training or education” where the testimony will “assist the trier of fact to understand” matters of “scientific, technical, or other specialized knowledge.” Fed.R.Evid. 702. “Drug jargon” is a proper subject for expert testimony. United States v. Freeman, 498 F.3d 893, 901 (9th Cir.2007). The Advisory Committee Notes to Rule 702, expressly authorize the use of testimony by law enforcement officers concerning the meaning of words used by drug traffickers. We have previously held that law enforcement testimony about the meaning of drug jargon may be both expert and lay testimony," } ]

[ { "docid": "4656148", "title": "", "text": "and IV is that between August and November of 1985. . Relying on 11 U.S.C. § 541(d), Equitable has argued that this Court need not reach the issue of equitable subordination because the mortgage loans in question do not constitute property of the estate but are owned by Equitable. In view of the conclusions reached herein, it is not necessary for the Court to address this issue. . These cases were all settled before trial, and full releases were given to Equitable by the institutional investors. . As the Court noted in the Pappas Opinion, Clott was a master in the art of deception and had the ability to deceive many persons and entities, including banks, savings and loan associations, auditors and investors. 690 F.Supp. at 1471. . In any event, the set-off in question clearly appears to be one involving mutual debts. Equitable set off funds existing in typical demand deposit accounts. FAMCO had borrowed money from Equitable, thus creating a debt by FAM-CO to Equitable; FAMCO had deposited those funds with Equitable in ordinary checking accounts, thus creating a debt by Equitable to FAMCO. The Court can perceive no inequity in permitting Equitable to retain this set-off. . Section 553 states that a creditor’s pre-petition right of set-off is not affected by the Bankruptcy Code except in certain instances. The only exception applicable here is that a creditor cannot set-oíf a claim that is disallowed. 11 U.S.C. § 553(a)(1). None of Equitable’s claims have been disallowed, and the Trustee has filed no objection to Equitable’s claims. See § 502." } ]

[ { "docid": "16689121", "title": "", "text": "to setoff a portion of its claims against Nat Warren. See 11 U.S.C.A. § 553(a) (West 1979). In response, Alexander & Jones filed a complaint in the bankruptcy court seeking to recover the funds in the account, contending that the account was a special account not subject to setoff. Sov-ran argued, however, that the account was a general account rather than a special account and was thus subject to setoff. The bankruptcy court found that the account was a special account and that Sov-ran had knowledge of Alexander & Jones’ intention to maintain the account for the purpose of paying Nat' Warren’s payroll. It also found that Nat Warren had not commingled other funds in the account so as to destroy its special nature. The bankruptcy court held that Sovran could not apply the balance of the account to setoff an obligation of Nat Warren and ordered Sovran to lift the freeze placed on the account. 95 B.R. 37. Sovran appealed the bankruptcy court order to the district court. The district court affirmed, finding that Sovran was aware of Alexander & Jones’ interest in the account and had approved the structure of the account. It concluded that the bankruptcy court did not err in finding the account to be a special account and in ordering Sovran to lift the freeze. II. Section 553(a) provides that unless otherwise excepted, Title 11 (the Bankruptcy Code) “does not affect any right of a creditor to offset a mutual debt owing by such creditor to the debtor that arose before the commencement of the case.” 11 U.S.C.A. § 553(a). “Section 553 does not create a right of setoff.... It merely preserves any right of setoff accorded by state law....” Durham v. SMI Indus. Corp., 882 F.2d 881, 883 (4th Cir.1989). Therefore, we look to Virginia law to determine whether Sovran is entitled to setoff the funds remaining in Nat Warren’s checking account. Under Virginia law, funds deposited in a general account immediately become the property of the bank and the bank becomes a debtor of the depositor. Bernardini v. Central Nat’l Bank of Richmond," }, { "docid": "4656106", "title": "", "text": "FAM-CO II, its subsidiaries and affiliates, Clott could at any time have transferred monies from any FAMCO II account into the MH Mortgage account. Indeed, Clott regularly did precisely that; he signed FAMCO II checks transferring corporate funds to MH Mortgage and eventually into his own pockets. Of course, simultaneously he was undertaking the other fraudulent activities which converted FAMCO II “into an engine of theft against outsiders.” See the Sacks Opinion, 99 B.R. at 696. Thus, FAMCO II was not in any event damaged by any wrongful deposit of these checks into the MH Mortgage account. The cause of the debtor’s losses was not Equitable’s lack of due care but the fraudulent activities of Clott. See Taylor, 269 Md. at 159, 304 A.2d 838. FAMCO II, acting through Clott, had ready access to the monies in issue, no matter in which account they were deposited. Whether or not Equitable acted in a commercially unreasonable manner pursuant to § 3-419(l)(c), it is mere conjecture to conclude that Clott’s diversions of monies would have been prevented if the checks had been deposited in bank accounts of FAMCO II and that additional funds would then have been available for the creditors. See the Sacks Opinion, 99 B.R. at 696. For all these reasons, this Court concludes that Equitable’s motion for summa ry judgment as to Count I must be granted, and that the Trustee’s own motion for partial summary judgment as to Count I must be denied. Y FRAUDULENT CONVEYANCES (COUNTS IX THROUGH XVII) In nine counts of the Fourth Amended Complaint, the Trustee seeks to avoid, pursuant to provisions of the Bankruptcy Code, three pre-petition payments made by FAMCO II to Equitable. The Trustee relies essentially on two different legal theories. First, the Trustee seeks to avoid these transfers under 11 U.S.C. § 548 as fraudulent conveyances. Second, the Trustee argues that these prepayments are avoidable under 11 U.S.C. § 544(b), which grants a trustee in bankruptcy the same power to avoid fraudulent transfers that an unsecured creditor has under state law. In support of this second theory, the Trustee relies" }, { "docid": "3385636", "title": "", "text": "of the damages awarded to the Debtors? The equitable remedy of setoff will accomplish a just result. Section 553 of the Bankruptcy Code addresses a creditor’s right to effectuate set-off. To invoke setoff, three requirements must be met. “The debt owed to the debtor and the claim asserted against the debtor (1) must be mutual obligations; (2) that arose from separate transactions; and (3) both must have been accrued prepetition.” Matter of American Sunlake Ltd. Partnership, 109 B.R. 727, 732 (Bankr.W.D.Mich.1989). “The application of setoff is permissive and lies within the equitable discretion of the Bankruptcy Court.” DuVoisin v. Foster (In re Southern Indus. Banking Corp.), 809 F.2d 329, 332 (6th Cir.1987). However, Section 553 only addresses possible setoff of prepetition debts. It is silent whether setoff of mutual postpetition obligations is permissible. “Setoff is an equitable right of a creditor to deduct a debt it owes to the debtor from a claim it has against the debtor arising out of a separate transaction; it ‘allows parties that owe mutual debts to state the accounts between them, subtract one from the other and pay only the balance.’ ” Turner v. S.B.A. (In re Turner), 59 F.3d 1041, 1043-44 (10th Cir.1995) (quoting Matter of Bevill, Bresler & Schulman Asset Management Corp., 896 F.2d 54, 57 (3d Cir.1990)). There is no reason to limit a chapter 13 debtor from seeking postpetition setoff against a creditor. The court believes it is appropriate to consider the same elements for setoff of postpe-tition debts that are utilized regarding possible setoff of prepetition debts. Therefore, to warrant postpetition setoff, the creditor’s debt owed to the debtor and the creditor’s claim against the debtor (1) must be mutual obligations, (2) that arose from separate transactions, and (3) both must have been accrued postpetition. The Debtors now owe Rosenberg $2,173.47. Although the genesis of this obligation is prepetition, the debt is now an unsecured postpetition obligation under the Debtors’ confirmed 100% repayment plan. Based upon this court’s findings and conclusions, Rosenberg now owes the Debtors $2,970.40. This obligation also is a postpetition obligation which arises from contemptuous disregard" }, { "docid": "12391735", "title": "", "text": "Nat’l Bank of Montevideo, 719 F.2d 270, 273 (8th Cir.1983), and whatever equitable powers remain in the bankruptcy courts must and can only be exercised within the confines of the Bankruptcy Code, Norwest Bank Worthington v. Ahlers, 485 U.S. 197, 206, 108 S.Ct. 963, 969, 99 L.Ed.2d 169 (1988). Guided by this precept, one court has declined to allow a defendant to raise the defense of setoff to a trustee’s § 549(a) action, under facts that are similar in many respects to the ones at bar. In re Garofalo’s Finer Foods, Inc., 186 B.R. 414, 432-435 (N.D.Ill.1995), aff'g 164 B.R. 955 (Bankr.N.D.Ill.1994). In Garofalo’s Finer Foods, a bank had continued to honor overdrawn checks issued by a debtor in possession under Chapter 11, and later credited for the amounts of the honored NSF checks by exercising setoff against funds later deposited by the debtor. Neither the debtor nor the bank disclosed this revolving-credit arrangement while the case remained under Chapter 11, and neither obtained court approval for the repayment brought about by the setoff. On the bank’s appeal from a judgment in favor of the trust ee under § 549(a), the District Court held that the bankruptcy court property concluded that it did not have the authority ... to award any equitable relief in contravention of the Code’s unambiguous provisions ... under § 549(a), and affirmed the bankruptcy court’s rejection of the bank’s defense that it had had a right to set off its post-petition claim against the debtor’s post-petition claim as depositor of funds with it. 186 B.R. at 434-435. Accord, In re Baxco Corp., 148 B.R. 855, 860 (Bankr.N.D.Ill.1992). On balance, the approach of Garofalo’s Finer Foods is by far the more defensible one; it gives effect to unambiguous provisions of §§ 549 and 550 in a way consonant with the “plain-meaning” jurisprudence repeatedly applied by the Supreme Court in its recent bankruptcy decisions, and it certainly promotes the goal of ratable distribution of the estate of a failed Chapter 11 debtor. This conclusion, then, requires the rejection of Defendant Leitner’s defense of setoff. Once his conservatee has" }, { "docid": "3825622", "title": "", "text": "the other $20, they could set those debts off against each other, rather than attempting to collect from each other.” In re De Laurentiis Entm’t. Group, Inc., 963 F.2d 1269, 1274 (9th Cir.1992). Like any debt, bank accounts are subject to the setoff provisions of state and federal law if the bank and the depositor owe mutual debts to each other. See 11 U.S.C. § 553(a) (bankruptcy code); S. Elec. Supply Co. v. Raleigh County Nat’l. Bank, 173 W.Va. 780, 820 S.E.2d 515, 519 (1984) (noting that, in West Virginia, “[blanks have a common law right to set off’). Setoffs are subject to the automatic stay, 11 U.S.C. § 862(a)(7), and, therefore, are valid only if they occur prior to the petition or subsequent to relief from the stay. Pre-petition setoffs, like the one at issue here, are rarely disturbed by the bankruptcy proceedings. See In re De Laurentiis Entm’t. Group, Inc., 963 F.2d at 1277. Setoffs are not immune from the bankruptcy trustee’s avoidance powers, however. The trustee may avoid an improper setoff and return the property to the bankruptcy estate if (1) the setoff occurred less than ninety days before the filing of the bankruptcy petition; (2) the debtor was insolvent at the time of the setoff; and (3) the creditor incurred the debt to the insolvent debtor “for the purpose of obtaining a right of setoff.” 11 U.S.C. § 553(a)(3); see also Durham v. SMI Indus. Corp., 882 F.2d 881, 882 (4th Cir.1989) (describing the procedure to avoid invalid setoffs as preferences). Dwyer alleges that O’Brien, Garten, Henthorn, and FNB colluded to improve FNB’s position as a creditor on the eve of O’Brien bankruptcy. These allegations cast doubt on the validity of FNB’s setoff. Thus, it remains to be determined whether the disputed funds are properly in FNB’s possession or whether they should be disgorged to the bankruptcy estate. The proper forum to resolve questions as to the validity of FNB’s setoff of a debt owed by O’Brien is in the bankruptcy court, as actions to avoid preferences and fraudulent transfers are designated by statute as core" }, { "docid": "4676670", "title": "", "text": "May, 1984 through November, 1985, and one additional payment on March 7, 1986. When the payments ceased, the Rosenbergers made demand for the notes from both F.S.G. and FAMCO, without success. The complaint states that “some or all of the notes originally purchased for Complainants” were assigned by FAMCO to Equitable Bank without the plaintiffs’ knowledge or consent, and that Equitable Bank knew or should have known that the notes so assigned had been previously assigned to the plaintiffs. 5. The Bank acknowledged in its memorandum [P. 35] that it had been assigned the notes in question “as part of the collateral for working capital loans FAMCO received from Equitable in October and November, 1985.” Id. However, the Bank, through the affidavit of its Vice President, James Henry, denied any knowledge that the notes had previously been assigned to the Rosenbergers. Mr. Henry further stated that before FAMCO’s collapse, he was unaware “of the pervasive fraud being carried out by Michael Clott against Equitable and others.” Exhibit A to Memorandum [P. 35]. 6. The “pervasive fraud” mentioned' above has been well documented in a number of reported decisions concerning FAM-CO after it filed for bankruptcy. All of these opinions were written by then-Chief Judge Alexander Harvey II of the U.S. District Court for the District of Maryland . In Stratton v. Equitable Bank, N.A., 104 B.R. 713 (D.Md.1989), a case brought by the debtor’s bankruptcy trustee, Judge Harvey summarized the history of FAMCO’s fraudulent dealings: FAMCO I, FAMCO II and their subsidiaries and affiliates were in the business of lending money and taking as security second and third mortgages on borrowers’ residences. These were extremely high risk loans made to individuals with poor credit backgrounds. The debtors charged extremely high rates of interest in addition to substantial servicing fees. Equitable was banker for both FAMCO I and FAMCO II. Numerous bank accounts were maintained at Equitable by FAMCO I and FAMCO II and by subsidiaries and affiliates. Between 1983 and 1985, Equitable extended credit or otherwise loaned millions of dollars to FAM-CO II for its operations. At various times during" }, { "docid": "4656134", "title": "", "text": "judgment. Equitable’s activities, although imprudent when viewed in hindsight, hardly amount to a violation of rules of fair play which would “shock the conscience” of this Court and require recharacterization or subordination. Therefore, Equitable’s motion for summary judgment must be granted as to Counts III and IV. VII PREFERENCES (COUNTS VII, XIX, XX AND XXI) Plaintiff’s amended complaint contains four counts in which the Trustee seeks to avoid certain interests of Equitable as preferences pursuant to 11 U.S.C. § 547(b). These are Counts VII, XIX, XX and XXI. Section 547(b) provides, in relevant part, as follows: (b) Except as provided in subsection (c) of this section, the trustee may avoid any transfer of property of the debtor— (1) to or for the benefit of a creditor; (2) for or on account of an antecedent debt owed by the debtor before such transfer was made; (3) made while the debtor was insolvent; (4) made— (A) on or within 90 days before the date of the filing of the petition.... (a) Count VII In Count VII, the Trustee attempts to avoid Equitable’s setoff of the debtor's bank deposits which occurred on November 15, 1985. On this date, Equitable set-off $458,732.05 in funds maintained by FAM-CO II in various checking accounts at Equitable. These funds were applied to reduce the amount owed by the debtor under the $1.5 million loan made by Equitable to FAMCO II on October 9, 1985 as part of the WCL. Section 553(a) provides that, subject to certain exceptions, a creditor has the right to set-off a mutual debt owing by such creditor to the debtor which arose before the filing of the bankruptcy petition against a claim of such creditor against the debtor which likewise arose before the filing. Both sides agree that a mutual debt must be in the same right and between the same parties standing in the same capacity. The Trustee contends that mutuality did not exist in this case. He argues that pursuant to Counts III and IV, he is entitled to equitable subordination or re-characterization of Equitable’s claims and that Equitable therefore becomes" }, { "docid": "4676671", "title": "", "text": "fraud” mentioned' above has been well documented in a number of reported decisions concerning FAM-CO after it filed for bankruptcy. All of these opinions were written by then-Chief Judge Alexander Harvey II of the U.S. District Court for the District of Maryland . In Stratton v. Equitable Bank, N.A., 104 B.R. 713 (D.Md.1989), a case brought by the debtor’s bankruptcy trustee, Judge Harvey summarized the history of FAMCO’s fraudulent dealings: FAMCO I, FAMCO II and their subsidiaries and affiliates were in the business of lending money and taking as security second and third mortgages on borrowers’ residences. These were extremely high risk loans made to individuals with poor credit backgrounds. The debtors charged extremely high rates of interest in addition to substantial servicing fees. Equitable was banker for both FAMCO I and FAMCO II. Numerous bank accounts were maintained at Equitable by FAMCO I and FAMCO II and by subsidiaries and affiliates. Between 1983 and 1985, Equitable extended credit or otherwise loaned millions of dollars to FAM-CO II for its operations. At various times during the debtor’s existence, E.F. Hutton Mortgage Corporation (hereinafter “Hutton”) was the principal entity which provided funds to the debtor to be lent to borrowers. At other times, Equitable was the primary source of these funds. As the record here shows, there were at different times two corporations known as First American Mortgage Company, Inc. In 1979, Clott formed the first such corporate entity (referred to herein as “FAMCO I”), and he alone owned all of the outstanding stock of this corporation. In October of 1982, FAM-CO I was renamed MH Mortgage Company, Inc. (hereinafter “MH Mortgage”). A new corporation bearing the same name, First American Mortgage Company, Inc. (referred to herein as “FAMCO II”), was then formed. Additional stockholders joined Clott in the formation of FAMCO II. At the outset, Clott owned 49% of the outstanding stock of FAMCO II while five other individuals owned the other shares. In March of 1984, Clott became the owner of 51% of the outstanding stock of FAMCO II, with four other stockholders owning 12V4% each. Throughout the corporate" }, { "docid": "1177944", "title": "", "text": "permitted to exercise its right of setoff as to the account of L. Craig Shackelford, Jr., and Craig Shackelford Farms, Inc. The motion for relief of stay as to the Charles L. Hoffman, Jr., account is denied. Title to the fund in question is vested in the trustee, and he is the real party in interest. Matter of Lee, 40 B.R. 123, 126 (Bkrtcy.E.D.Mich., S.D.1984). However, no reason exists for denying relief from the stay in a Chapter 7 proceeding when the right of setoff does exist, once the trustee is made a party. IT IS SO ORDERED. . 11 U.S.C. § 542(b) Except as provided in subsection (c) or (d) of this section, an entity that owes a debt that is property of the estate and that is matured, payable on demand, or payable on order, shall pay such debt to, or on the order of, the trustee, except to the extent that such debt may be offset under section 553 of this title against a claim against the debtor. . The Supreme Court, on equitable grounds, set aside a judgment against a bank in an action brought by the trustee because the bank honored checks drawn by the debtor prepetition but presented for payment postpetition. Under Bankruptcy Act Section 70d(5) such a transfer was invalid against a trustee." }, { "docid": "20233821", "title": "", "text": "or transferred to [Wachovia] any collateral or security interest, including but not limited to personal or corporate property, guarantees, securities or property interests of any nature?” The bank responded “no” to the query. Id., ¶ 6. II. The Supreme Court has explained the applicability of setoff rights in bankruptcy cases: The right of setoff (also called “offset”) allows entities that owe each other money to apply their mutual debts against each other, thereby avoiding “the absurdity of making A pay B when B owes A.” Studley v. Boylston Nat. Bank, 229 U.S. 523, 528[, 33 S.Ct. 806, 57 L.Ed. 1313] ... (1913). Although no federal right of setoff is created by the Bankruptcy Code, 11 U.S.C. § 553(a) provides that, with certain exceptions, whatever right of setoff otherwise exists is preserved in bankruptcy. Citizens Bank of Maryland v. Strumpf 516 U.S. 16, 18, 116 S.Ct. 286, 133 L.Ed.2d 258 (1995). Although a prepetition right of set-off is preserved under the Bankruptcy Code by section 553(a), the exercise of that right is enjoined by the bankruptcy stay. 11 U.S.C. § 362(a)(7); see Citizens Bank of Maryland v. Strumpf, 516 U.S. at 19, 116 S.Ct. 286 (“It is also undisputed that under § 362(a)[7] respondent’s bankruptcy filing stayed any exercise of that right [of setoff] by petitioner”). Recognizing that post-bankruptcy set-offs are within the scope of the bankruptcy stay, Wachovia now requests that the automatic stay be terminated pursuant to 11 U.S.C. § 362(d) so that it may exercise its non-bankruptcy law right to recover the funds in the debtor’s deposit accounts. See generally U.S. on Behalf of I.R.S. v. Norton, 717 F.2d 767, 771 (3d Cir.1983) (“Thus, before a setoff can be made against the debts owed by a petitioner in bankruptcy, a creditor must seek relief from the automatic stay”); In re Ealy, 392 B.R. 408 (Bankr.E.D.Ark.2008). That lift-stay request is opposed by the debtor, the chapter 13 trustee and Fletcher Harlee. They contend, alternatively, that: (1) Wachovia holds no setoff right because Fletcher Harlee’s garnishment lien, which hen exceeds the funds in the debtor’s deposit accounts, arose first and" }, { "docid": "18598648", "title": "", "text": "definition of transfer in 11 U.S.C. § 101(40), the court held, they could not be avoided as an improper transfer under section 547(b) or pursuant to the trustee’s power to recover from indirect beneficiaries under the version of section 550(a) that applied at the time. While section 553(b) contained its own preference provision, this only provided for recovery from a “creditor [who] offsets a mutual debt” and made no mention of recovery from any third party who may have indirectly benefited by the setoff. Therefore, the court concluded, Gateway could not be said to have benefited from the positive balances in Prescott’s accounts. Even noting that it was Marine’s action which directly effected the setoff, we disagree with the district court’s finding with respect to the indirect benefit to Gateway. Under the Bankruptcy Act of 1898, setoffs were generally not avoidable as preferences. See Jensen v. State Bank of Allison, 518 F.2d 1 (8th Cir.1975). However, this created certain problems. “The setoff upset the scheme of equitable distribution and bankruptcy policy with respect to recovery of preferences.” In re Balducci Oil Co., 33 B.R. 847, 852 (Bankr.D.Colo.1983). When drafting the new Bankruptcy Code, therefore, Congress decided to impose certain limitations on the right of set-off. One possible limitation proposed in the original House Resolution was to include “setoff” in the general definition of transfer, thus enabling its consideration under section 547(b). The Senate rejected this approach of treating setoffs as transfers, however, and chose instead to subject them to special rules. See Statement by Senator DeConcini, Senate Debate on the Compromise Bill to H.R. 8200, 124 Cong. Rec. at 33,993 (95th Cong.2d Sess. October 5, 1978). Section 553(b) was the special rule adopted by Congress to govern preferential setoffs. This rule provides: (b)(1) Except with respect to a setoff of a kind described in section 362(b)(6), 362(b)(7), 365(h)(2), or 365(i)(2) of this title, if a creditor offsets a mutual debt owing to the debtor against a claim against the debtor on or within 90 days before the date of the filing of the petition, then the trustee may recover from" }, { "docid": "4656109", "title": "", "text": "other creditors. In asserting these nine claims, the Trustee relies exclusively on his Exhibit 43, which contains an undated, FAMCO-gener-ated computer printout of various mortgage loans. According, to the Trustee, the column on the printout that is entitled “PDTO” indicates the months in which these loans were paid off. The computer printout, says the Trustee, shows the Cummings loan to have been paid off in May 1984, the Pickard loan to be in default as of March 1984, and the Skafte loan to have been paid off in October 1984. After a review of the entire record here, this Court concludes that the Trustee has failed to come forward with sufficient probative evidence to support the legal theories advanced. Accordingly, summary judgment in favor of defendant Equitable will be granted as to Counts IX through XVII. (a) Property of the Debtor Title 11 U.S.C. § 547(b) empowers the Trustee to avoid certain transfers “of property of the debtor.” Section 548(a) empowers the Trustee to avoid “any transfer of an interest of the debtor in property” if the transfers meet certain conditions. Contending that the three payments in question do not constitute transfers of property of the debtor, Equitable points out that the payments made to it by the debtor were contemporaneous pass-throughs of borrower prepayments owed to Equitable by FAMCO II pursuant to the MSSR. However, even though Equitable owned the mortgage loans and had the right to receive prepayments on these loans directly from the borrowers, these three prepayments were first deposited into the “FAM Mortgage Servicing Paid-in-Full” account. This was an ordinary FAMCO II checking account, over which the debtor had control. Thus, even if these funds did not initially belong to FAMCO II, they were deposited in accounts owned and controlled by FAM-CO II. Therefore, these funds constitute property of the debtor’s estate within the meaning of § 547(b) and § 548(a). (b) Section 548 Section 548 authorizes the Trustee to avoid transfers “of an interest of the debt- or in property” made within one year of the date of filing of the bankruptcy petition. Two categories" }, { "docid": "4656107", "title": "", "text": "if the checks had been deposited in bank accounts of FAMCO II and that additional funds would then have been available for the creditors. See the Sacks Opinion, 99 B.R. at 696. For all these reasons, this Court concludes that Equitable’s motion for summa ry judgment as to Count I must be granted, and that the Trustee’s own motion for partial summary judgment as to Count I must be denied. Y FRAUDULENT CONVEYANCES (COUNTS IX THROUGH XVII) In nine counts of the Fourth Amended Complaint, the Trustee seeks to avoid, pursuant to provisions of the Bankruptcy Code, three pre-petition payments made by FAMCO II to Equitable. The Trustee relies essentially on two different legal theories. First, the Trustee seeks to avoid these transfers under 11 U.S.C. § 548 as fraudulent conveyances. Second, the Trustee argues that these prepayments are avoidable under 11 U.S.C. § 544(b), which grants a trustee in bankruptcy the same power to avoid fraudulent transfers that an unsecured creditor has under state law. In support of this second theory, the Trustee relies on provisions of the Maryland Uniform Fraudulent Conveyances Act, Md. Comm. Law Code Ann. §§ 15-204 — 15-207 (1983). The three payments in question are evidenced by three deposit slips of Equitable, bearing dates in August and October of 1985. The deposit slips are attached to checks which denote prepayments of certain mortgage loans, namely, those of Marshall Pickard, Carl Cummings and Richard Skafte. Because Equitable held the notes on these loans pursuant to the MSSR, Equitable argues that these payments were rightfully paid over to it by FAMCO II and cannot now be avoided by the Trustee. The Trustee challenges Equitable’s right to receive these payments on the ground that these 1985 payments were made on account of mortgage loans which were in default or were worthless because they had already been paid off. Because FAMCO II had no obligation to make payments on worthless loans, the Trustee contends that an issue of material fact arises as to whether these 1985 payments were fraudulently made by the debtor to Equitable with consequent loss to" }, { "docid": "16689122", "title": "", "text": "Sovran was aware of Alexander & Jones’ interest in the account and had approved the structure of the account. It concluded that the bankruptcy court did not err in finding the account to be a special account and in ordering Sovran to lift the freeze. II. Section 553(a) provides that unless otherwise excepted, Title 11 (the Bankruptcy Code) “does not affect any right of a creditor to offset a mutual debt owing by such creditor to the debtor that arose before the commencement of the case.” 11 U.S.C.A. § 553(a). “Section 553 does not create a right of setoff.... It merely preserves any right of setoff accorded by state law....” Durham v. SMI Indus. Corp., 882 F.2d 881, 883 (4th Cir.1989). Therefore, we look to Virginia law to determine whether Sovran is entitled to setoff the funds remaining in Nat Warren’s checking account. Under Virginia law, funds deposited in a general account immediately become the property of the bank and the bank becomes a debtor of the depositor. Bernardini v. Central Nat’l Bank of Richmond, 223 Va. 519, 521, 290 S.E.2d 863, 864 (1982). A bank is entitled to set-off any debt due to it against money deposited in a general account of the debtor. Id. However, when funds are deposited in a special account, “the deposit does not become the property of the bank and the right of setoff does not exist.” Id. An account is a special account and thus exempt from setoff if (1) funds are deposited in the account for a special purpose and (2) the bank has notice of the special purpose of the account. Id. Funds not subject to setoff lose their exempt status, however, when they are commingled with funds that are not exempt from setoff. Id. at 522, 290 S.E.2d at 865. Absent an agreement to the contrary, an account is presumed to be a general account. Williams v. Dickenson County Bank, 175 Va. 359, 363-64, 7 S.E.2d 885, 887 (1940). III. Sovran contends that even if the account was originally a special account, it lost its “specialness” when other funds were" }, { "docid": "4656110", "title": "", "text": "if the transfers meet certain conditions. Contending that the three payments in question do not constitute transfers of property of the debtor, Equitable points out that the payments made to it by the debtor were contemporaneous pass-throughs of borrower prepayments owed to Equitable by FAMCO II pursuant to the MSSR. However, even though Equitable owned the mortgage loans and had the right to receive prepayments on these loans directly from the borrowers, these three prepayments were first deposited into the “FAM Mortgage Servicing Paid-in-Full” account. This was an ordinary FAMCO II checking account, over which the debtor had control. Thus, even if these funds did not initially belong to FAMCO II, they were deposited in accounts owned and controlled by FAM-CO II. Therefore, these funds constitute property of the debtor’s estate within the meaning of § 547(b) and § 548(a). (b) Section 548 Section 548 authorizes the Trustee to avoid transfers “of an interest of the debt- or in property” made within one year of the date of filing of the bankruptcy petition. Two categories of avoidable transfers are set forth in § 548(a). A conveyance may be fraudulent either (1) if it was made with “actual intent to hinder, delay, or defraud” an existing or subsequent creditor, (i.e., whether or not the transferor was insolvent at the time), or (2) if the transferor was insolvent (or likely to become insolvent) and received “less than reasonably equivalent value” in exchange for the transfer (i.e., whether or not the transferee had a wrongful intent). The Trustee argues that the transfers in question were fraudulent in both respects. (1) Section 548(a)(1) A transfer may be fraudulent and therefore avoidable, if it was made by the debtor with actual intent to hinder, delay, or defraud persons to whom the debtor was or later became indebted. § 548(a)(1). As evidence of wrongful intent on the part of FAMCO II, the Trustee relies on this Court’s earlier determination that Clott operated a Ponzi-type scheme to defraud Hutton and other purchasers of its mortgage loans by having them buy delinquent or defaulted loans and then using" }, { "docid": "20233822", "title": "", "text": "stay. 11 U.S.C. § 362(a)(7); see Citizens Bank of Maryland v. Strumpf, 516 U.S. at 19, 116 S.Ct. 286 (“It is also undisputed that under § 362(a)[7] respondent’s bankruptcy filing stayed any exercise of that right [of setoff] by petitioner”). Recognizing that post-bankruptcy set-offs are within the scope of the bankruptcy stay, Wachovia now requests that the automatic stay be terminated pursuant to 11 U.S.C. § 362(d) so that it may exercise its non-bankruptcy law right to recover the funds in the debtor’s deposit accounts. See generally U.S. on Behalf of I.R.S. v. Norton, 717 F.2d 767, 771 (3d Cir.1983) (“Thus, before a setoff can be made against the debts owed by a petitioner in bankruptcy, a creditor must seek relief from the automatic stay”); In re Ealy, 392 B.R. 408 (Bankr.E.D.Ark.2008). That lift-stay request is opposed by the debtor, the chapter 13 trustee and Fletcher Harlee. They contend, alternatively, that: (1) Wachovia holds no setoff right because Fletcher Harlee’s garnishment lien, which hen exceeds the funds in the debtor’s deposit accounts, arose first and extinguished the possibility of setoff; (2) any right of setoff was waived by Wacho-via prepetition, when it was not asserted as a defense to Fletcher Harlee’s garnishment action; and (3) Wachovia should look to its mortgage on the S & C Properties realty for any recovery of prepetition claims. Whether or not Wachovia is granted relief from the automatic stay, if the bank holds a right of setoff, it need not turn over estate property. The turnover statute states: “an entity that owes a debt that is property of the estate ... shall pay such debt ... except to the extent that such debt may be offset under section 553 of this title against a claim against the debtor.” 11 U.S.C. § 542(b). Moreover, by virtue of section 506(a), a setoff right gives rise to an allowed secured claim. See, e.g., In re Patterson, 967 F.2d 505, 509 (11th Cir.1992); In re Rehab Project, Inc., 238 B.R. 363, 375 (Bankr.N.D.Ohio 1999) (“Congress bestowed upon creditors having a valid right of setoff, the status of an" }, { "docid": "4656135", "title": "", "text": "Trustee attempts to avoid Equitable’s setoff of the debtor's bank deposits which occurred on November 15, 1985. On this date, Equitable set-off $458,732.05 in funds maintained by FAM-CO II in various checking accounts at Equitable. These funds were applied to reduce the amount owed by the debtor under the $1.5 million loan made by Equitable to FAMCO II on October 9, 1985 as part of the WCL. Section 553(a) provides that, subject to certain exceptions, a creditor has the right to set-off a mutual debt owing by such creditor to the debtor which arose before the filing of the bankruptcy petition against a claim of such creditor against the debtor which likewise arose before the filing. Both sides agree that a mutual debt must be in the same right and between the same parties standing in the same capacity. The Trustee contends that mutuality did not exist in this case. He argues that pursuant to Counts III and IV, he is entitled to equitable subordination or re-characterization of Equitable’s claims and that Equitable therefore becomes the equivalent of an equity holder while the Trustee has the status of a creditor with a prior claim to these assets. As discussed herein, this Court has concluded that Equitable’s motion for summary judgment should be granted as to Counts III and IV. Since the Trustee is not entitled to equitable subordination or recharacterization, his argument based on a theory of nonmu-tuality must be rejected. Accordingly, Equitable’s motion for summary judgment must also be granted as to Count VII. (b) Count XIX In Count XIX, the Trustee alleges that on December 1, 1985, Equitable set-off its commercial loan to FAM Servicing, Inc. (a subsidiary of FAMCO II) against the mortgage loans that it held as collateral for the commercial loan. Equitable contends that no such set-off ever occurred. Whether or not a factual basis exists to support this claim, the Trustee has once again conceded that should the Court reject his claims of equitable subordination and recharacterization advanced in Counts III and IV, then the Trustee likewise must fail as to Count XIX. Since" }, { "docid": "1510664", "title": "", "text": "right exists, if at all, under applicable nonbankruptcy law.” In re Drexel Burnham Lambert Group Inc., 113 B.R. 830, 839 (Bankr. S.D.N.Y.1990). A creditor bears the burden of proving that it has the right of setoff in bankruptcy, see First Nat’l Bank of Louisville v. Hurricane Elkhom Coal Corp. II, 763 F.2d 188, 190 (6th Cir.1985), and must establish the following three criteria: 1. The debtor must owe a debt to the creditor which arose prepetition; 2. The debtor must have a claim against the creditor which arose prepetition; and 3. The debt and claim must be mutual. Braniff Airways, Inc. v. Exxon Co., USA, 814 F.2d 1030, 1034 (5th Cir.1987). Once these technical requirements of setoff are satisfied, “the bankruptcy judge must scrutinize the right of setoff in light of the Bankruptcy Code’s goals and objectives. These goals include ... equitable treatment of all creditors.” Illinois v. Lakeside Community Hosp., Inc. (In re Lakeside Community Hospital, Inc.), 151 B.R. 887, 890 (N.D.Ill.1993); accord In re Elcona Homes Corp., 863 F.2d 483, 484 (7th Cir.1988). I. Setoff of the Alaska Airlines Fund This Court holds that the Government may not apply the Alaska Airlines Fund to off set amounts owed by Eastern to the Government. As stated previously, section 553 codifies the established “right to set off mutual prepetition debts owed to and owed by a creditor.” Drexel, 113 B.R. at 839. In this instance, although the Government attempts to categorize the Alaska Airlines Fund as a “debt” owed to the Debtor in connection with the Alaska Airlines litigation, the District Court and the Federal Circuit made it abundantly clear that this Fund belongs to the Debtors and thus is property of the estate. As stated by the District Court: Both the GAO and the Court have found that the Government arbitrarily and without justification has withheld from the Plaintiffs money clearly belonging to them. In essence, the Government improperly has taken Plaintiffs’ property from them without any legal basis for doing so. Alaska Airlines v. Austin, No. CIV. 90-2879, 1992 WL 464711, at *2 (D.D.C.1992). Referring to the District" }, { "docid": "23532401", "title": "", "text": "of funds from the debtor-in-possession’s account [which the bank credited to the debt- or’s pre-petition debt] was not sanctioned by the very narrow exceptions contained in section § 549”), aff'd 32 B.R. 992 (M.D.Tenn.1983). Accordingly, the bankruptcy court properly applied the plain terms of sections 549(a) and 550(a) and concluded that the Trustee may recover and FNB-Harvey must disgorge the aggregate amount of the deposits set-off by the bank. See In re Photo Promotion Assoc., Inc., 881 F.2d 6, 7-9 (2d Cir.1989) (where the court held that the trustee could compel a chapter 11 creditor who had collected an unauthorized assignment of the debtor-in-possession’s accounts receivable in violation of section 364(c) to disgorge the monies it collected even though the creditor had a valid administrative claim to those funds under section 503(b)); In re Tom McCormick Enter., Inc., 26 B.R. at 440-41 (where the court held that the trustee may avoid and recover and the bank must disgorge the $60,000 in funds it improperly set-off from the debtor-in-possession’s bank account). Moreover, because this result was compelled by the plain language of the Code, the bankruptcy court properly concluded that it did not have the authority (and will not have the authority on remand) to award any equitable relief in contravention of the Code’s unambiguous provisions. See In re Baxco Corp., 148 B.R. at 859 (where the court refused to “deviate from the plain language of the Code ... and apply equitable considerations to uphold an otherwise avoidable transfer” under section 549). FNB-Harvey must therefore disgorge to the estate the sum of $2,315,901.22. The bankruptcy court shall determine on remand the exact amount of the overdraft credits that were extended by the bank within the ordinary course of business; the bank shall have an administrative expense claim equal to this amount pursuant to section 364(a). The bankruptcy court shall further determine on remand that the remaining balance of the overdraft credits were extended outside of the ordinary course of business; the bank shall have a general unsecured claim equal to this amount. The bank may then pursue its administrative expense claim" }, { "docid": "4656147", "title": "", "text": "as other payments, upon loans which were paid off or in default. Now, the Trustee seeks recovery only on the basis of three pre-payments made by borrowers to FAMCO II, which were then paid over to Equitable pursuant to the terms of the MSSR. . As indicated in opinions filed in other FAM-CO-related litigation, payments of principal made before the due date by a borrower of a mortgage loan originated by FAMCO II have been termed \"prepayments.” . Furthermore, this Court would note that even if the Trustee could show a fraudulent transfer, Equitable is not a proper party from whom the Trustee may seek recovery. See In re Chase & Sanborn Corp., 848 F.2d 1196, 1198-1200 (11th Cir.1988). Where a bank has no control over a customer's bank accounts but merely serves a conduit for funds, such a bank cannot, pursuant to § 550, be a proper \"transferee” for purposes of a recovery. Id. . The Trustee submits that the critical period for evaluating Equitable's relationship with FAMCO II for purposes of Counts III and IV is that between August and November of 1985. . Relying on 11 U.S.C. § 541(d), Equitable has argued that this Court need not reach the issue of equitable subordination because the mortgage loans in question do not constitute property of the estate but are owned by Equitable. In view of the conclusions reached herein, it is not necessary for the Court to address this issue. . These cases were all settled before trial, and full releases were given to Equitable by the institutional investors. . As the Court noted in the Pappas Opinion, Clott was a master in the art of deception and had the ability to deceive many persons and entities, including banks, savings and loan associations, auditors and investors. 690 F.Supp. at 1471. . In any event, the set-off in question clearly appears to be one involving mutual debts. Equitable set off funds existing in typical demand deposit accounts. FAMCO had borrowed money from Equitable, thus creating a debt by FAM-CO to Equitable; FAMCO had deposited those funds with Equitable in" } ]

[ { "docid": "22767438", "title": "", "text": "does not enjoy an absolute right to present evidence relevant to his defense. See Crane v. Kentucky, 476 U. S. 683, 690-691 (1986). But none of the “familiar” eviden-tiary rules operates as Montana’s does. The Montana statute places a blanket exclusion on a category of evidence that would allow the accused to negate the offense’s mental-state element. In so doing, it frees the prosecution, in the face of such evidence, from having to prove beyond a reasonable doubt that the defendant nevertheless possessed the required mental state. In my view, this combination of effects violates due process. The proposition that due process requires a fair opportunity to present a defense in a criminal prosecution is not new. See id., at 690; California v. Trombetta, 467 U. S. 479, 485 (1984). In Chambers, the defendant had been prevented from cross-examining a witness and from presenting witnesses on his own behalf by operation of Mississippi’s “voucher” and hearsay rules. The Court held that the application of these evidentiary rules deprived the defendant of a fair trial. “[Wjhere constitutional rights directly affecting the ascertainment of guilt are implicated, the hearsay rule may not be applied mechanistically to defeat the ends of justice.” 410 U. S., at 302. The plurality’s characterization of Chambers as “case-specific error correction,” ante, at 52, cannot diminish its force as a prohibition on enforcement of state evidentiary rules that lead, without sufficient justification, to the establishment of guilt by suppression of evidence supporting the defendant’s case. In Crane, a trial court had held that the defendant could not introduce testimony bearing on the circumstances of his confession, on the grounds that this information bore only on the “voluntariness” of the confession, a matter already resolved. We held that by keeping such critical information from the jury this exclusion “deprived petitioner of his fundamental constitutional right to a fair opportunity to present a defense.” 476 U. S., at 687. The Court emphasized that, while States have the power to exclude evidence through evidentiary rules that serve the interests of fairness and reliability, limitations on evidence may exceed the bounds of" } ]

[ { "docid": "22203853", "title": "", "text": "alleged December 2001/January 2002 possession of a firearm. According to the proffer, Hampton (in December 2001) and Massey (either in December 2001 or in January 2002) each saw Mathis with a firearm that looked similar to the murder weapon. The district court refused to permit the testimony, noting that the proposed testimony was “just too tenuous.” Lighty contends the district court’s ruling prevented him from developing his defense — that Mathis kidnapped and murdered Hayes. According to Lighty, “[gjiven the government’s efforts to establish that Lighty possessed the gun used to shoot Hayes, a crucial part of Lighty’s defense was showing that it was Mathis who possessed the gun.” Lighty’s Br. at 77. Whether grounded in the Sixth Amendment’s guarantee of compulsory process or in the more general Fifth Amendment guarantee of due process, “the Constitution guarantees criminal defendants ‘a meaningful opportunity to present a complete defense.’ ” Holmes v. South Carolina, 547 U.S. 319, 324, 126 S.Ct. 1727, 164 L.Ed.2d 503 (2006) (quoting Crane v. Kentucky, 476 U.S. 683, 690, 106 S.Ct. 2142, 90 L.Ed.2d 636 (1986)). This right includes, “at a minimum, ... the right to put before a jury evidence that might influence the determination of guilt.” Pennsylvania v. Ritchie, 480 U.S. 39, 56, 107 S.Ct. 989, 94 L.Ed.2d 40 (1987). Although a defendant has a constitutional right to present evidence in his favor, United States v. Moussaoui, 382 F.3d 453, 471 (4th Cir.2004), “a defendant’s right to present a defense is not absolute: criminal defendants do not have a right to present evidence that the district court, in its discretion, deems irrelevant or immaterial.” United States v. Prince-Oyibo, 320 F.3d 494, 501 (4th Cir.2003); see also Crane, 476 U.S. at 689-90, 106 S.Ct. 2142 (noting that the “Constitution leaves to the judges who must make these decisions wide latitude to exclude evidence that is repetitive ..., only marginally relevant or poses an undue risk of harassment, prejudice, [or] confusion of the issues”) (citation and internal quotation marks omitted). When determining whether evidence of an alternative perpetrator should be admitted at trial, courts have found that such" }, { "docid": "22641315", "title": "", "text": "the government has not disputed that Tressel’s testimony was relevant; rather, it objected and the district court ruled that some of Tressel’s opinion testimony was not reliable, and for that reason inadmissible. Because the district court did not abuse its discretion in finding the opinion unreliable, Gaskell does not illuminate this case. B. Nor are we persuaded by Frazier’s broader claim that the aggregate effect of the district court’s evidentiary rulings was to deny him “a meaningful opportunity to present a complete defense.” California v. Trombetta, 467 U.S. 479, 485, 104 S.Ct. 2528, 2532, 81 L.Ed.2d 413 (1984). It is surely true that a defendant must be afforded the opportunity to present a defense. Indeed, the right of the accused to assert a complete defense is well established, and has its roots in the Fifth, Sixth, and Fourteenth Amendments to the Constitution. The Supreme Court has explained: Whether rooted directly in the Due Process Clause of the Fourteenth Amendment, or in the Compulsory Process or Confrontation clauses of the Sixth Amendment, the Constitution guarantees criminal defendants a meaningful opportunity to present a complete defense. We break no new ground in observing that an essential component of procedural fairness is an opportunity to be heard. Crane v. Kentucky, 476 U.S. 683, 690, 106 S.Ct. 2142, 2146-7, 90 L.Ed.2d 636 (1986) (internal quotation marks and citations omitted). As the Court observed in Chambers v. Mississippi: “[f]ew rights are more fundamental than that of an accused to present witnesses in his own defense.” 410 U.S. 284, 302, 93 S.Ct. 1038, 1049, 35 L.Ed.2d 297 (1973). While the Constitution unquestionably provides a defendant with the right to be heard, this right is not unbounded. Thus, “[t]he accused does not have an unfettered right to offer testimony that is incompetent, privileged, or otherwise inadmissible under standard rules of evidence.” Taylor v. Illinois, 484 U.S. 400, 410, 108 S.Ct. 646, 653, 98 L.Ed.2d 798 (1988). A trial would not be considered unfair because the defendant was prevented from offering perjured testimony. See Nix v. Whiteside, 475 U.S. 157, 173, 106 S.Ct. 988, 997, 89 L.Ed.2d 123" }, { "docid": "23646866", "title": "", "text": "to present this defense by restricting his cross-examination of Regan and other witnesses and by cutting short his own testimony. He argues that these rulings violated his Fifth and Sixth Amendment rights to present his defense. “Whether rooted directly in the Due Process Clause of the [Fifth] Amendment or in' the Compulsory Process or Confrontation clauses of the Sixth Amendment, the Constitution guarantees criminal defendants ‘a meaningful opportu nity to present a complete defense.’ ” Crane v. Kentucky, 476 U.S. 683, 690, 106 S.Ct. 2142, 90 L.Ed.2d 636 (1986) (quoting California v. Trombetta, 467 U.S. 479, 485, 104 S.Ct. 2528, 81 L.Ed.2d 413 (1984)) (citations omitted). What constitutes the “basic elements” of a fair trial under the Fifth Amendment is determined “largely through the several provisions of the Sixth Amendment.” Strickland v. Washington, 466 U.S. 668, 685, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). However, “[a] defendant’s right to present relevant evidence is not unlimited, but rather is subject to reasonable restrictions.” United States v. Scheffer, 523 U.S. 303, 308, 118 S.Ct. 1261, 140 L.Ed.2d 413 (1998). For example, the Supreme Court has “never questioned the power of States to exclude evidence through the application of evidentiary rules that themselves serve the interests of fairness and reliability — even if the defendant would prefer to see that evidence admitted.” Crane, 476 U.S. at 690, 106 S.Ct. 2142. Thus, “federal rulemakers have broad latitude under the Constitution to establish rules excluding evidence from criminal trials .... so long as [those rules] are not ‘arbitrary’ or ‘disproportionate to the purposes they are designed to serve.’ ” Scheffer, 523 U.S. at 308, 118 S.Ct. 1261 (quoting Rock v. Arkansas, 483 U.S. 44, 56, 107 S.Ct. 2704, 97 L.Ed.2d 37 (1987)). The Supreme Court reaffirmed this principle recently, emphasizing that “well-established rules of evidence [that] permit trial judges to exclude evidence if its probative value is outweighed by certain other factors such as unfair prejudice, confusion of the issues, or potential to mislead the jury” do not normally breach defendants’ constitutional rights. Holmes v. South Carolina, 547 U.S. 319, 326, 126 S.Ct. 1727, 164" }, { "docid": "11240710", "title": "", "text": "Texas, 388 U.S. 14, 23, 87 S.Ct. 1920, 18 L.Ed.2d 1019 (1967); see also Crane v. Kentucky, 476 U.S. 683, 690, 106 S.Ct. 2142, 90 L.Ed.2d 636 (1986) (“Whether rooted directly in the Due Process Clause of the Fourteenth Amendment, or in the Compulsory Process or Confrontation clauses of the Sixth Amendment, the Constitution guarantees criminal defendants ‘a meaningful opportunity to present a complete defense.’ ”) (internal citations omitted). The “right to present relevant evidence is not unlimited,” and “is subject to reasonable restrictions” imposed by the criminal process. United States v. Scheffer, 523 U.S. 303, 308, 118 S.Ct. 1261, 140 L.Ed.2d 413 (1998). As a result, state and federal rulemak-ers have broad latitude under the Constitution to establish rules excluding evidence from criminal trials. Such rules do not abridge an accused’s right to present a defense so long as they are not “arbitrary” or “disproportionate to the purposes they are designed to serve.” Moreover, we have found the exclusion of evidence to be unconstitutionally arbitrary or disproportionate only where it has infringed upon a weighty interest of the accused. Ibid. (internal citations and quotation omitted). In Washington v. Texas, the petitioner was convicted of malicious murder arising from the shooting of the mother of his ex-girlfriend. Both Washington and one Charles Fuller were present when the gun was fired. Washington testified at his trial that he did not shoot the deceased, and had in fact been running back to his vehicle when he heard a shot ring out, presumably discharged by Fuller. Fuller was not allowed to corroborate this version of events at trial because he had earlier been convicted of the same murder, and under Texas evidence law persons charged as accomplices in the same crime were not permitted to testify on behalf of one another. The petitioner’s conviction was upheld by the Texas courts, but the Supreme Court reversed, finding that “the right to present ... witnesses to establish a defense ... is a fundamental element of due process of law.” Washington v. Texas, 388 U.S. at 19, 87 S.Ct. 1920. The Court found the Texas rule" }, { "docid": "514553", "title": "", "text": "1723 (internal quotation marks and citations omitted). There is no claim here that Kutska was not subject to full and effective cross-examination. c. Mr. Moore next submits that the trial court denied Mr. Moore a fair trial by excluding the defense computer-generated videotape. “On a petition for writ of habeas corpus, a federal court will not review evidentiary questions unless there is a resultant denial of fundamental fairness or the denial of a specific constitutional right.” Stomner v. Kolb, 903 F.2d 1123, 1128 (7th Cir.1990) (internal quotation marks and citations omitted). The Supreme Court has recognized that “the Constitution leaves to the judges who must make these decisions ‘wide latitude’ to exclude evidence that .... poses an undue risk of harassment, prejudice, [or] confusion of the issues.” Crane v. Kentucky, 476 U.S. 683, 689, 106 S.Ct. 2142, 90 L.Ed.2d 636 (1986) (internal quotation marks and citations omitted). The state court found that the computer-generated version would mislead the jury because it did not accurately account for possible movement by persons or for placement of objects in the room. The fact that the video failed to account for essential variables and thus might mislead the jury is a “valid state justification” for having excluded the evidence. Crane, 476 U.S. at 690, 106 S.Ct. 2142. d. Mr. Moore next claims that his counsel was constitutionally ineffective. To establish an ineffective assistance of counsel claim, Mr. Moore must demonstrate that (1) his “counsel’s representation fell below an objective standard of reasonableness;” and (2) that he was prejudiced in that “counsel’s errors were so serious as to deprive the defendant of a fair trial, a trial whose result is reliable.” Strickland v. Washington, 466 U.S. 668, 687-88, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). Mr. Moore’s argument that he was denied effective assistance of counsel is based on his counsel’s failure to challenge, other than through cross-examination, Jones’ testimony about the changed time line. Mr. Moore argues that his counsel should have requested a continuance, sought a mistrial, or moved that the testimony be struck. Rather, Mr. Moore’s counsel cross-examined Jones and showed that" }, { "docid": "22944765", "title": "", "text": "rest its evidentiary decisions on incorrect interpretations of the Constitution, see United States v. Johnson, 440 F.3d 832, 842 (6th Cir.2006); see also United States v. Baker, 458 F.3d 513, 516 (6th Cir.2006) (“[Tjhese two standards of review are not in fact inconsistent because it is an abuse of discretion to make errors of law or clear errors of factual determinations.”) 2. The Right to a Meaningful Defense “Whether rooted directly in the Due Process Clause of the [Fifth Amendment] or in the Compulsory Process or Confrontation Clause of the Sixth Amendment, the Constitution guarantees criminal defendants ‘a meaningful opportunity to present a complete defense.’ ” Holmes v. South Carolina, — U.S. ——, 126 S.Ct. 1727, 1732, 164 L.Ed.2d 503 (2006) (quoting Crane v. Kentucky, 476 U.S. 683, 690, 106 S.Ct. 2142, 90 L.Ed.2d 636 (1986)). “While the Constitution thus prohibits the exclusion of defense evidence under rules that are designed to serve no legitimate purpose or that are disproportionate to the ends they are asserted to promote ... the Constitution permits judges to exclude evidence that is repetitive ... only marginally relevant or poses an undue risk of harassment, prejudice, [or] confusion of the issues.” Id. (internal citations and quotations omitted). Accordingly, “ ‘[t]he accused does not have an unfettered right to offer [evidence] that is incompetent, privileged, or otherwise inadmissible under standard rules of evidence.’ ” Montana v. Egelhoff, 518 U.S. 37, 42, 116 S.Ct. 2013, 135 L.Ed.2d 361 (1996) (quoting Taylor v. Illinois, 484 U.S. 400, 410, 108 S.Ct. 646, 98 L.Ed.2d 798 (1988)); see also United States v. Scheffer, 523 U.S. 303, 308, 118 S.Ct. 1261, 140 L.Ed.2d 413 (holding that rules of evidence only infringe on a defendant’s right to present a defense where they are arbitrary or disproportionate or infringe on a weighty interest of the accused). Moreover, even where a district court erroneously excludes defense evidence, “[w]hether the exclusion of [witnesses’] testimony violated [defendant’s] right to present a defense depends upon whether the omitted evidence [evaluated in the context of the entire record] creates a reasonable doubt that did not otherwise exist.” Washington" }, { "docid": "11240709", "title": "", "text": "135 L.Ed.2d 361 (1996) (quoting Patterson v. New York, 432 U.S. 197, 202, 97 S.Ct. 2319, 53 L.Ed.2d 281 (1977)); see also Spencer v. Texas, 385 U.S. 554, 563-64, 87 S.Ct. 648, 17 L.Ed.2d 606 (1967). Seymour v. Walker, 224 F.3d 542, 552 (6th Cir.2000) (second alteration in original). However, the petitioner has raised an issue of constitutional dimension when he alleged that the exclusion of the evidence actually contravened his right to present a defense, incorporated in the Sixth Amendment. The Compulsory Process Clause of the Sixth Amendment provides an accused with the right to “compulsory process for obtaining witnesses in his favor,” U.S. Const. amend. VI, a crucial part of the Constitution’s more basic guarantee of “a meaningful opportunity to present a complete defense.” California v. Trombetta, 467 U.S. 479, 485, 104 S.Ct. 2528, 81 L.Ed.2d 413 (1984). As applied to the states by the Due Process Clause of the Fourteenth Amendment, the accused has the right at trial to present testimony that is “relevant,” “material,” and “vital to the defense.” Washington v. Texas, 388 U.S. 14, 23, 87 S.Ct. 1920, 18 L.Ed.2d 1019 (1967); see also Crane v. Kentucky, 476 U.S. 683, 690, 106 S.Ct. 2142, 90 L.Ed.2d 636 (1986) (“Whether rooted directly in the Due Process Clause of the Fourteenth Amendment, or in the Compulsory Process or Confrontation clauses of the Sixth Amendment, the Constitution guarantees criminal defendants ‘a meaningful opportunity to present a complete defense.’ ”) (internal citations omitted). The “right to present relevant evidence is not unlimited,” and “is subject to reasonable restrictions” imposed by the criminal process. United States v. Scheffer, 523 U.S. 303, 308, 118 S.Ct. 1261, 140 L.Ed.2d 413 (1998). As a result, state and federal rulemak-ers have broad latitude under the Constitution to establish rules excluding evidence from criminal trials. Such rules do not abridge an accused’s right to present a defense so long as they are not “arbitrary” or “disproportionate to the purposes they are designed to serve.” Moreover, we have found the exclusion of evidence to be unconstitutionally arbitrary or disproportionate only where it has infringed upon a" }, { "docid": "22943878", "title": "", "text": "Farr-Lenzini, 93 Wash.App. 453, 970 P.2d 313, 318 (1999) (internal quotation marks omitted) (explaining that Rule 702 requires that (1) the witness be qualified as an expert and (2) the testimony be helpful to the trier of fact). Under Rule 702, expert testimony is helpful to the jury if it concerns matters beyond the common knowledge of the average layperson and is not misleading. See id. at 319. Moses asserts that the state appellate court’s decision is contrary to the Supreme Court’s precedents holding that defendants have a constitutional right to present rele vant evidence in their own defense. See Crane v. Kentucky, 476 U.S. 683, 690, 106 S.Ct. 2142, 90 L.Ed.2d 636 (1986) (“[T]he Constitution guarantees criminal defendants a meaningful opportunity to present a complete defense.”) (internal quotation marks omitted). The Supreme Court has indicated that a defendant’s right to present a defense stems both from the right to due process provided by the Fourteenth Amendment, see Chambers v. Mississippi, 410 U.S. 284, 294, 93 S.Ct. 1038, 35 L.Ed.2d 297 (1973), and from the right “to have compulsory process for obtaining witnesses in his favor” provided by the Sixth Amendment, see Washington v. Texas, 388 U.S. 14, 23, 87 S.Ct. 1920, 18 L.Ed.2d 1019 (1967) (explaining that the right to compulsory process would be meaningless if the defendant lacked the right to use the witnesses whose presence he compelled). However, “[a] defendant’s right to present relevant evidence is not unlimited, but rather is subject to reasonable restrictions,” such as evidentiary and procedural rules. United States v. Scheffer, 523 U.S. 303, 308, 118 S.Ct. 1261, 140 L.Ed.2d 413 (1998). In fact, “state and federal rulemakers have broad latitude under the Constitution to establish rules excluding evidence from criminal trials,” id., and the Supreme Court has indicated its approval of “well-established rules of evidence [that] permit trial judges to exclude evidence if its probative value is outweighed by certain other factors such as unfair prejudice, confusion of the issues, or potential to mislead the jury,” Holmes v. South Carolina, 547 U.S. 319, 326, 126 S.Ct. 1727, 164 L.Ed.2d 503 (2006). Evi-dentiary" }, { "docid": "23022775", "title": "", "text": "it is not for us to review a state court’s evidentiary rulings. See, e.g., Estelle v. McGuire, 502 U.S. 62, 67-68, 112 S.Ct. 475, 116 L.Ed.2d 385 (1991). Rather, a federal habeas court reviews only for violation of “the Constitution, laws, or treaties of the United States.” Id. at 68, 112 S.Ct. 475 (citing, e.g., 28 U.S.C. § 2241). Further, state evidentiary determinations ordinarily do not present federal constitutional issues. See Crane v. Kentucky, 476 U.S. 683, 689, 106 S.Ct. 2142, 90 L.Ed.2d 636 (1986) (noting Court’s “traditional reluctance to impose constitutional constraints on ordinary evidentiary rulings by state trial courts”). However, the Supreme Court, in, e.g., Chambers v. Mississippi, 410 U.S. 284, 302, 93 S.Ct. 1038, 35 L.Ed.2d 297 (1973), and Green v. Georgia, 442 U.S. 95, 97, 99 S.Ct. 2150, 60 L.Ed.2d 738 (1979) (capital sentencing proceeding), has provided an exception, under some circumstances, if a state court applies the State’s evidentiary rules unfairly to prevent a defendant from presenting evidence that is critical to his defense. See also, e.g., Washington v. Texas, 388 U.S. 14, 16, 23, 87 S.Ct. 1920, 18 L.Ed.2d 1019 (1967). This, however, is not such a case. The state trial court did not exclude any evidence critical to Woodruffs or Romano’s defense. Here, Woodruff and Romano were in fact able to put on a significant amount of evidence concerning these three individuals. See Boyd, 179 F.3d at 921; see also Richmond v. Embry, 122 F.3d 866, 873-74 (10th Cir.1997). They first presented evidence that it was generally well known that Sarfaty frequently carried lots of jewelry and money with him. Additionally, Sarfaty had been a crime victim on several previous occasions, having had things taken from his home and jewelry stolen from him. Sarfaty told a friend he suspected “[s]ome woman” had perpetrated these crimes. Within two weeks prior to the murder, Sarfaty had reported separate in cidents of assault and burglary and, immediately prior to the murder, Sarfaty told a friend that he anticipated another robbery attempt against him. His friend urged Sarfaty to change the way he did business, late at" }, { "docid": "16374590", "title": "", "text": "sexual abuse was not being proffered to attack the believability of a crucial witness against Mrs. Rockwell. The rule under which the trial court excluded the evidence, moreover, is not aimed at protecting juvenile offenders. The interests at stake in this case are entirely different than those at stake in Davis. Because Davis is readily distinguishable, and because the gloss Mrs. Rockwell would have us put on the case flies in the face of a line of authority (to which we shall turn shortly) culminating in United States v. Scheffer, 523 U.S. 303, 118 S.Ct. 1261, 140 L.Ed.2d 413 (1998), we reject the claim that the Michigan court’s decision represented an unreasonable application of Davis. Mrs. Rockwell attempts to extract from Davis and other Supreme Court cases a general rule that a criminal defendant must be permitted to present any evidence that she deems critical to her defense. In this connection she cites Crane v. Kentucky, 476 U.S. 683, 106 S.Ct. 2142, 90 L.Ed.2d 636 (1986), which holds that “the Constitution guarantees criminal defendants ‘a meaningful opportunity to present a complete defense.’ ” Id. at 690, 106 S.Ct. 2142 (citations omitted). But the Supreme Court has made it perfectly clear that the right to present a “complete” defense is not an unlimited right to ride roughshod over reasonable evidentiary restrictions. A defendant “does not have an unfettered right to offer testimony that is incompetent, privileged, or otherwise inadmissible under standard rules of evidence.” Taylor v. Illinois, 484 U.S. 400, 410, 108 S.Ct. 646, 98 L.Ed.2d 798 (1988). Rather, she “must comply with established rules of procedure and evidence designed to assure both fairness and reliability in the ascertainment of guilt and innocence.” Chambers v. Mississippi 410 U.S. 284, 302, 93 S.Ct. 1038, 35 L.Ed.2d 297 (1973). As the Supreme Court explained in Scheffer: “state and federal rulemakers have broad latitude under the Constitution to establish rules excluding evidence from criminal trials. Such rules do not abridge an accused’s right to present a defense so long as they are not ‘arbitrary’ or ‘disproportionate to the purposes they are designed to serve.’" }, { "docid": "11698883", "title": "", "text": "up by his relatives, and he therefore had to defend himself. The trial judge allowed some evidence of the feud to be introduced, but he determined that Baze could not base his defense on the incidents with his wife’s family because the two officers were not directly involved in the family altercation, and Baze did not have a contentious relationship with either of the victims. The Kentucky Supreme Court held that the trial judge ruled correctly that the feud was n'ot relevant to the killings, and that he had not abused his discretion by limiting the evidence of the intra-familial conflict. Baze I, 965 S.W.2d at 821. A fair opportunity to present a defense is a constitutional right. Crane v. Kentucky, 476 U.S. 683, 690, 106 S.Ct. 2142, 90 L.Ed.2d 636 (1986) (citing cases). Presenting relevant evidence is integral to that right. Taylor v. Illinois, 484 U.S. 400, 408-09, 108 S.Ct. 646, 98 L.Ed.2d 798 (1988) (stating that “[t]he need to develop all relevant facts in the adversary system is both fundamental and comprehensive”). In particular, few rights are more fundamental than that of an accused to present witnesses in his own defense. Chambers v. Mississippi, 410 U.S. 284, 302, 93 S.Ct. 1038, 35 L.Ed.2d 297 (1973) (citations omitted). However, this right is not absolute. The defendant “must comply with established rules of procedure and evidence designed to assure both fairness and reliability in the ascertainment of guilt and innocence.” Ibid. States have broad authority to promulgate rules that exclude evidence so long as they are not “arbitrary” or “disproportionate to the purposes they are designed to serve.” United States v. Scheffer, 523 U.S. 303, 308, 118 S.Ct. 1261, 140 L.Ed.2d 413 (1998) (citing Rock v. Arkansas, 483 U.S. 44, 56, 107 S.Ct. 2704, 97 L.Ed.2d 37 (1987) (internal citations omitted)). Accordingly, the Constitution leaves judges “wide latitude” to exclude evidence that is only “marginally relevant.” Crane, 476 U.S. at 689, 106 S.Ct. 2142. Exclusion of evidence only raises constitutional concerns if it has “infringed upon a weighty interest of the accused.” Scheffer, 523 U.S. at 308, 118 S.Ct. 1261" }, { "docid": "15030875", "title": "", "text": "report, R.O.A. Supp. Vol. I, at 8, and because counsel as an officer of the court represents that this is the same report that was before the district court, and because the government does not oppose it, we will grant the motion. We remind counsel, however, of the importance of a valid, properly presented, detailed, and recorded offer of proof when testimony is involved and of the importance of insuring that supporting documentary evidence be made part of the record. B. Exclusion of Psychologist’s Testimony The admission or exclusion of expert testimony is reviewed for abuse of discretion. United States v. Rice, 52 F.3d 843, 847 (10th Cir.1995). However, Mr. Adams suggests that, in this case, exclusion of the psychologist’s report effectively precluded Mr. Adams’s theory of defense, thereby violating his right to a fair trial and due process — a violation that he claims warrants de novo review. We disagree. Mr. Adams cites United States v. Smith, 63 F.3d 956 (10th Cir.1995), and United States v. Bindley, 157 F.3d 1235 (10th Cir.1998), as evidence that de novo review is required here. Aplt. Br. at 12. Both cases are inapposite. Both Smith and Bindley determined that it was reversible error for a trial court to refuse a jury instruction on a theory of defense after a defendant makes a threshold showing as to each element of the defense, and that the adequacy of the defendant’s threshold showing is reviewed de novo. Smith, 63 F.3d at 965; Bindley, 157 F.3d at 1241. But while an adequate threshold showing entitles a defendant to a jury instruction on that theory of defense, it does not entitle that defendant to have admitted whatever evidence he desires to support that theory. The Constitution affords trial judges “wide latitude” to exclude evidence that is repetitive, marginally relevant, poses an undue risk of harassment, prejudice, or confusion of the issues, or is otherwise excluded through the application of the evidentiary rules. Crane v. Kentucky, 476 U.S. 683, 689-90, 106 S.Ct. 2142, 90 L.Ed.2d 636 (1986). Mr. Adams confuses a fundamental right, the right to present a theory" }, { "docid": "22943910", "title": "", "text": "Court stated: “[S]tate and federal rulemakers have broad latitude under the Constitution to establish rules excluding evidence from criminal trials. This latitude, however, has limits.... [T]he Constitution guarantees criminal defendants a meaningful opportunity to present a complete defense. This right is abridged by evidence rules that infring[e] upon a weighty interest of the accused and are ‘arbitrary’ or ‘disproportionate to the purposes they are designed to serve.’ ” Holmes, 547 U.S. at 324-325, 126 S.Ct. 1727 (citations and quotations omitted, second alteration in original). See also Crane v. Kentucky, 476 U.S. 683, 690, 106 S.Ct. 2142, 90 L.Ed.2d 636 (1986) (holding that “an essential component of procedural fairness is an opportunity to be heard”). The central theme running through each of these Supreme Court cases is the clearly established right that the Constitution guarantees to a criminal defendant to present relevant and material witnesses in his defense. These cases circumscribe the state’s ability to infringe that right: a state may limit the defendant’s evidence only when that limitation has a nonarbi-trary purpose(s) that is (are) proportionate to the corresponding infringement upon the defendant. See, e.g., Chambers, 410 U.S. at 295, 93 S.Ct. 1038 (“the right to confront and to cross-examine is not absolute .... But its denial or significant diminution calls into question the ultimate ‘integrity of the fact-finding process’ and requires that the competing interest be closely examined.” (citations omitted)). Here, as the Washington Court of Appeals noted, Dr. Wilson’s testimony was excluded under a Washington evidentiary rule governing admissibility of expert testimony, which requires that 1) the witness is qualified as an expert, and 2) the testimony would be helpful to the trier of fact. The state appellate court determined that the trial court did not abuse its discretion in determining that Dr. Wilson’s proffer failed the second prong. The court of appeals concluded that Dr. Wilson’s testimony added only that Jennifer had a minimally greater chance of committing suicide than a person who had not been diagnosed with major depression during the time period in question, dismissing his remaining proffer as information either that would already be" }, { "docid": "23629296", "title": "", "text": "contrary to Supreme Court precedent, because it neither applied a rule of law contradicting Supreme Court precedent, see Williams, 120 S.Ct. at 1519, nor arrived at a different conclusion despite “materially indistinguishable” facts. See id. at 1519-20. The Supreme Court has not decided the specific circumstances under which a criminal defendant must be allowed to introduce evidence of prior non-criminal conduct to demonstrate that he did not commit the crime at issue. The closer question is whether the appellate division decision was objectively unreasonable in light of Supreme Court precedent that the opportunity to present a defense is one of the constitutional requirements of a fair trial. See, e.g., Crane v. Kentucky, 476 U.S. 683, 690, 106 S.Ct. 2142, 90 L.Ed.2d 636 (1986) (“[T]he Constitution guarantees criminal defendants a meaningful opportunity to present a complete defense.”) (internal quotation marks and citations omitted); Rock v. Arkansas, 483 U.S. 44, 51-53, 107 S.Ct. 2704, 97 L.Ed.2d 37 (1987) (right to present defense includes right of defendant to testify). The Supreme Court also instructs that “habeas corpus relief does not lie for errors of state law,” see Estelle v. McGuire, 502 U.S. 62, 67, 112 S.Ct. 475, 116 L.Ed.2d 385 (1991) (citations omitted). We must, however, inquire into possible state eviden-tiary law errors at the trial level in order to ascertain whether the appellate division acted within the limits of what is objectively reasonable in finding no constitutional defect existed in Jones’ trial. Cf. Chambers v. Mississippi 410 U.S. 284, 302-03, 93 S.Ct. 1038, 35 L.Ed.2d 297 (1973) (erroneous exclusion of evidence amounts to constitutional error if it deprives the defendant of a fundamentally fair trial); see also Rosario v. Kuhlman, 839 F.2d 918, 924 (2d Cir.1988) (same). Specifically, “whether the exclusion of [witnesses’] testimony violated [defendant’s] right to present a defense depends upon whether ‘the omitted evidence [evaluated in the context of the entire record] creates a reasonable doubt that did not otherwise exist.’ ” Justice v. Hoke, 90 F.3d 43, 47 (2d Cir.1996) (quoting United States v. Agurs, 427 U.S. 97, 112, 96 S.Ct. 2392, 49 L.Ed.2d 342 (1976)). In a" }, { "docid": "6369327", "title": "", "text": "or in the Compulsory Process or Confrontation clauses of the Sixth Amendment, the Constitution guarantees criminal defendants a meaningful opportunity to present a complete defense.” Crane v. Kentucky, 476 U.S. 683, 690, 106 S.Ct. 2142, 90 L.Ed.2d 636 (1986) (even after trial court had decided that confession was admissible, defendant was constitutionally entitled to put on evidence of circumstances of confession to show that it was unreliable) (citations and internal quotation marks omitted). The second is: “Restrictions on a criminal defendant’s rights to confront adverse witnesses and to present evidence ‘may not be arbitrary or disproportionate to the purposes they are designed to serve.’ ” Michigan v. Lucas, 500 U.S. 145, 151, 111 S.Ct. 1743, 114 L.Ed.2d 205 (1991) (Constitution did not necessarily require admission of evidence of prior sexual relationship between rape victim and defendant when defense did not comply with requirement of notice to prosecution) (quoting Rock v. Arkansas, 483 U.S. 44, 56, 107 S.Ct. 2704, 97 L.Ed.2d 37 (1987) (rejecting per se rule excluding hypnotically refreshed testimony when applied to defendant’s own testimony)). At the same time, however, the Supreme Court has never questioned the traditional reasons for excluding evidence that may have some relevance. The formulation in Federal Rule of Evidence 403 sets them forth as follows: “The court may exclude relevant evidence if its probative value is substantially outweighed by a danger of one or more of the following: unfair prejudice, confusing the issues, misleading the jury, undue delay, wasting time, or needlessly presenting cumulative evidence.” Fed.R.Evid. 403. Thus, Crane said: We acknowledge ... our traditional reluctance to impose constitutional constraints on ordinary evidentiary rulings by state trial courts. In any given criminal case the trial judge is called upon to make dozens, sometimes hundreds, of decisions concerning the admissibility of evidence. As we reaffirmed earlier this Term, the Constitution leaves to the judges who must make these decisions “wide latitude” to exclude evidence that is “repetitive ..., only marginally relevant” or poses an undue risk of “harassment, prejudice, [or] confusion of the issues.” Delaware v. Van Arsdall, 475 U.S. 673, 679 [106 S.Ct. 1431," }, { "docid": "22943877", "title": "", "text": "9, 124 S.Ct. 1354 (citing Tennessee v. Street, 471 U.S. 409, 414, 105 S.Ct. 2078, 85 L.Ed.2d 425 (1985)). Therefore, the state appellate court’s analysis is consistent with Crawford and does not meet the criteria for habeas relief under 28 U.S.C. § 2254(d)(1). IV Moses next maintains that he is entitled to habeas relief because the trial court denied him the opportunity to present evidence on his own behalf. In particular, Moses points to the trial court’s decisions to exclude: (1) Dr. Wilson’s testimony; (2) portions of Jennifer Moses’s handwritten journal; and (3) Jennifer Moses’s autopsy photograph. A The state appellate court upheld the trial court’s decision to exclude Dr. Wilson’s testimony because it was cumulative and because the non-cumulative portion of his proposed testimony was not sufficiently probative to outweigh its likely prejudicial and confusing effects on the jury. This analysis was undertaken under the governing Washington evidentiary rule, Rule 702, which admits expert testimony “if it will assist the trier of fact to understand the evidence or a fact in issue.” State v. Farr-Lenzini, 93 Wash.App. 453, 970 P.2d 313, 318 (1999) (internal quotation marks omitted) (explaining that Rule 702 requires that (1) the witness be qualified as an expert and (2) the testimony be helpful to the trier of fact). Under Rule 702, expert testimony is helpful to the jury if it concerns matters beyond the common knowledge of the average layperson and is not misleading. See id. at 319. Moses asserts that the state appellate court’s decision is contrary to the Supreme Court’s precedents holding that defendants have a constitutional right to present rele vant evidence in their own defense. See Crane v. Kentucky, 476 U.S. 683, 690, 106 S.Ct. 2142, 90 L.Ed.2d 636 (1986) (“[T]he Constitution guarantees criminal defendants a meaningful opportunity to present a complete defense.”) (internal quotation marks omitted). The Supreme Court has indicated that a defendant’s right to present a defense stems both from the right to due process provided by the Fourteenth Amendment, see Chambers v. Mississippi, 410 U.S. 284, 294, 93 S.Ct. 1038, 35 L.Ed.2d 297 (1973), and from the" }, { "docid": "13169305", "title": "", "text": "scheme and that Petters was without fault. “Whether rooted directly in the Due Process Clause of the Fourteenth Amendment or in the Compulsory Process or Confrontation clauses of the Sixth Amendment, the Constitution guarantees criminal defendants ‘a meaningful opportunity to present a complete defense.’ ” Crane v. Kentucky, 476 U.S. 683, 690, 106 S.Ct. 2142, 90 L.Ed.2d 636 (1986) (quoting California v. Trombetta, 467 U.S. 479, 485, 104 S.Ct. 2528, 81 L.Ed.2d 413 (1984)) (internal citations omitted). However, “[t]he right to present relevant testimony is not without limitation. The right may, in appropriate cases, bow to accommodate other legitimate interests in the criminal trial process.” Michigan v. Lucas, 500 U.S. 145, 149, 111 S.Ct. 1743, 114 L.Ed.2d 205 (1991) (quoting Rock v. Arkansas, 483 U.S. 44, 55, 107 S.Ct. 2704, 97 L.Ed.2d 37 (1987)). For instance, “[t]he accused does not have an unfettered right to offer testimony that is incompetent, privileged, or otherwise inadmissible under standard rules of evidence.” Taylor v. Illinois, 484 U.S. 400, 410, 108 S.Ct. 646, 98 L.Ed.2d 798 (1988). To that end, the “Constitution leaves to the judges who must make these decisions wide latitude to exclude evidence that is repetitive ..., only marginally relevant or poses an undue risk of harassment, prejudice, [or] confusion of the issues.” Crane, 476 U.S. at 689-90, 106 S.Ct. 2142 (citation and internal quotation marks omitted). The district court did not abuse its discretion in prohibiting Petters from introducing Reynolds’s WITSEC file into evidence. The information contained in the file was collateral to the crimes alleged in the indictment, and admitting it would have risked confusing the issues presented to the jury at trial. Further, defense counsel was able to vigorously attack Reynolds’s credibility in the cross-examination by establishing that he had participated in multiple other fraud schemes and cooperated with the government in an effort to receive leniency in punishment. Accordingly, Petters was not denied the ability to present a complete defense. B. Next, Petters asserts his right to confront Reynolds was stymied when the district court prohibited inquiry into some of Reynolds’s past criminal activities, including Reynolds’s connections" }, { "docid": "13963347", "title": "", "text": "to dispute Whitehouse’s testimony that Lydia Ceruti intimidated him by calling him numerous times and that counsel should have emphasized that Whitehouse is much larger than Ceruti. Petitioner, however, presents no phone records to support his claim. Additionally, Whitehouse testified that Ceruti threatened to send other people to harm him. Given such circumstances, Petitioner has not shown that counsel erred and/or that he was sufficiently prejudiced by counsel’s conduct in questioning Daniel Lamont and Kevin Whitehouse. Habeas relief is not warranted on this basis. C. Right to Present a Defense Claim Lastly, Petitioner asserts that he is entitled to habeas relief because the trial court denied him a fair opportunity to present witnesses in support of his defense. Respondent contends that this claim lacks merit. The right of an accused to present a defense has long been recognized as “a fundamental element of due process.” Washington v. State, 388 U.S. 14, 19, 87 S.Ct. 1920, 18 L.Ed.2d 1019 (1967); see also United States v. Scheffer, 523 U.S. 303, 308, 118 S.Ct. 1261, 140 L.Ed.2d 413 (1998); Crane v. Kentucky, 476 U.S. 683, 689-90, 106 S.Ct. 2142, 90 L.Ed.2d 636 (1986). In making this claim, Petitioner focuses on the fact that Lydia Ceruti was not called to testify as a defense witness. The trial court, however, did not deny Petitioner the opportunity to present Cer-uti as a witness. Rather, defense counsel made a decision not to call her to testify. Consequently, the trial court did not violate Petitioner’s rights. Habeas relief is not warranted on this claim. V. Conclusion and, Order For the reasons stated, the Court concludes that Petitioner was denied the effective assistance of counsel at trial and that the state court’s decision to the contrary constitutes an unreasonable application of federal law and the facts. Accordingly, the Court CONDITIONALLY GRANTS the petition for writ of habeas corpus. The State shall either release Petitioner or institute proceedings to retry him within 90 days of the filing date of this opinion. Should the State fail to do so, Petitioner may move for an unconditional writ seeking immediate release from custody." }, { "docid": "23022774", "title": "", "text": "Dennis v. State, 879 P.2d 1227, 1232 (Okla.Crim.App.1994). Proof of another’s motive is not enough. See, e.g., id. In this case, Woodruff and Romano sought to cast suspicion for Sarfaty’s robbery and murder on T.R. “Tippy” Ballard, Kathy Ford, and Susan Babbitt. The state trial court admitted some evidence connecting these three individuals with Sarfaty, but excluded other such evidence. Applying Oklahoma’s evidentiary rule, the Oklahoma Court of Criminal Appeals upheld the trial court’s exclusion of this evidence. See Romano, 847 P.2d at 380-82; Woodruff, 846 P.2d at 1137-38. Although, on direct appeal, Woodruff and Romano did challenge the trial court’s exclusion of this evidence on federal constitutional grounds, the Oklahoma Court of Criminal Appeals addressed these claims only under state law. See Romano, 847 P.2d at 380-82; Woodruff, 846 P.2d at 1137-38. We, therefore, review de novo the federal district court’s denial of habeas relief on these due process and Sixth and Eighth Amendment claims. See Thomas, 218 F.3d at 1220. Of course, sitting as a federal habeas court applying 28 U.S.C. § 2254, it is not for us to review a state court’s evidentiary rulings. See, e.g., Estelle v. McGuire, 502 U.S. 62, 67-68, 112 S.Ct. 475, 116 L.Ed.2d 385 (1991). Rather, a federal habeas court reviews only for violation of “the Constitution, laws, or treaties of the United States.” Id. at 68, 112 S.Ct. 475 (citing, e.g., 28 U.S.C. § 2241). Further, state evidentiary determinations ordinarily do not present federal constitutional issues. See Crane v. Kentucky, 476 U.S. 683, 689, 106 S.Ct. 2142, 90 L.Ed.2d 636 (1986) (noting Court’s “traditional reluctance to impose constitutional constraints on ordinary evidentiary rulings by state trial courts”). However, the Supreme Court, in, e.g., Chambers v. Mississippi, 410 U.S. 284, 302, 93 S.Ct. 1038, 35 L.Ed.2d 297 (1973), and Green v. Georgia, 442 U.S. 95, 97, 99 S.Ct. 2150, 60 L.Ed.2d 738 (1979) (capital sentencing proceeding), has provided an exception, under some circumstances, if a state court applies the State’s evidentiary rules unfairly to prevent a defendant from presenting evidence that is critical to his defense. See also, e.g., Washington v. Texas," }, { "docid": "11535707", "title": "", "text": "and his commentary as to what evidence might constitute a foundation did not infringe on Petitioners’ right to decide whether to testify. The state court’s decision was proper, and we thus reject this claim. E. Exclusion of Testimony and the Sixth Amendment Right to Present a Defense Petitioners’ claim here is closely related to the previous two claims we have rejected. The exclusion of certain evidence, they say, violated their rights to due process under the Fifth and Fourteenth Amendments and their Sixth Amendment right to present a defense because the proffered evidence would have served to explain why Petitioners felt they were in immediate danger on the night of the shootings. The trial court excluded as either cumulative or lacking foundation: (1) some evidence relating to specific instances of physical, psychological, and sexual abuse; and (2) some expert testimony that Petitioners suffered from Battered Person’s Syndrome. The California Court of Appeal concluded that the trial court did not abuse its discretion in excluding this evidence because the court had admitted extensive evidence of the history of Petitioners’ abuse at the hands of their parents. The very length of the defense case — more than two full months — belies an assertion that the court arbitrarily limited defense evidence. The Constitution guarantees a criminal defendant a meaningful opportunity to introduce relevant evidence on his behalf. Crane v. Kentucky, 476 U.S. 683, 690, 106 S.Ct. 2142, 90 L.Ed.2d 636 (1986). But this right is subject to reasonable restrictions “to accommodate other legitimate interests in the criminal trial process.” United States v. Scheffer, 523 U.S. 303, 308, 118 S.Ct. 1261, 140 L.Ed.2d 413 (1998) (quoting Rock v. Arkansas, 483 U.S. 44, 55, 107 S.Ct. 2704, 97 L.Ed.2d 37 (1987) (quoting Chambers v. Mississippi, 410 U.S. 284, 295, 93 S.Ct. 1038, 35 L.Ed.2d 297 (1973))). Thus, a trial judge may exclude or limit evidence to prevent excessive consumption of time, undue prejudice, confusion of the issues, or misleading the jury. See id. The trial judge enjoys broad latitude in this regard, so long as the rulings are not arbitrary or disproportionate. Id. Erik" } ]

[ { "docid": "14210289", "title": "", "text": "landowner appealed from an' assessment of damages resulting from the government’s condemnation of approximately 34 acres of land. 585 F.3d at 3. The 34-acre parcel was zoned for conservation and passive recreation purposes. Id. No other uses were permitted without a variance or permit. Id. at 3-4. At the time of the taking, the government deposited $375,300 with the district court as estimated just compensation. Id. at 4. This estimate was based on a highest and best use of the property for conservation and passive recreation. Id. The landowner, on the other hand, retained an expert who would testify that the highest and best use of the parcel was for the construction of residences and sand extraction. Id. However, neither use was permissible under the zoning ordinance, absent permission from the zoning board. Id. Before, trial, the district court had granted the government’s motion in limine to exclude the expert’s testimony. Id. at 5. The district court adopted the magistrate judge’s report and recommendation, which concluded that the expert’s “opinion, by itself,’ fails to establish a reasonable probability that the Planning Board would either change the zoning or grant a variance at any time in the near future.” Id. (citations and quotations omitted). The report further noted that the landowner “has failed to document a single instance that supports [the expert’s] assertion that the Puerto Rico Planning Board has ever, or is likely to, approve residential housing developments on land zoned [for conservation and passive recreation purposes].” Id. On appeal, the First Circuit affirmed the district court’s exclusion of the landowner’s highest and best use evidence. Id. at 8-9. As an initial matter, the court found that because the landowner conceded that the 34 acres could not be used for.residential development or sand extraction without rezoning or the authorization of a variance, the landowner had the burden to show that “there is a reasonable probability that the property would be rezoned or that a variance .could have been obtained in the near future.” Id. at 8. However, the court found that the landowner did not meet his burden. Id. The" } ]

[ { "docid": "16266497", "title": "", "text": "with a lemonade stand” because “any agricultural use of that property is so insignificant that you couldn’t consider it as any kind of reasonable interim use of that property.” Pis.’ Ex. 107 at 1792 (125:15-25). To be sure, defendant does contend that plaintiffs could make some agricultural use of the project site. Yet defendant provides no evidence showing that any agricultural use of the parcel is possible, legal, and economically viable for plaintiffs. See Board of County Supervisors, 276 F.3d at 1365 (requiring that a proposed “use” show a “reasonable probability that, at the time of the taking, the land was both physically adaptable for such use and that there was a need or demand for such use in the reasonably near future”); Formanek v. United States, 26 Cl.Ct. at 339 (rejecting proffered uses that were “convenient arguments rather than feasible alternatives”). Defendant repeats this same error in contending that plaintiff could have harvested the timber on the property. Charles Barber, defendant’s timber expert, initially opined that the timber on the property had interim income potential. Pis.’ Ex. 99 at 1577; Pis.’ Ex. 103 at 1663-67 (228:10-232:9), 1671-73 (236:1-238:6). Yet, Mr. Barber’s initial opinion did not address any of the myriad permitting or wetlands issues surrounding the project site. Id. When subsequently informed that the Washington Department of Natural Resources had denied plaintiffs a timber permit, required to cut and sell trees, for interim use pending the Corps’ approval of the final landfill configuration, Mr. Barber retracted his earlier statement that the project site had potential for timber use. Id. Nor does defendant identify record evidence showing that there is a genuine issue of material fact concerning the economic viability of developing the parcel for residential, commercial, or industrial use, or leasing or selling the parcel for such use. While defendant points out that the project site had been subdivided prior to plaintiffs’ acquisition, the fact remains that subdivision of property does not constitute an economically viable use, nor does having road frontage mean that those individual lots have market value, let alone enable those lots to retain economically viable" }, { "docid": "14210290", "title": "", "text": "a reasonable probability that the Planning Board would either change the zoning or grant a variance at any time in the near future.” Id. (citations and quotations omitted). The report further noted that the landowner “has failed to document a single instance that supports [the expert’s] assertion that the Puerto Rico Planning Board has ever, or is likely to, approve residential housing developments on land zoned [for conservation and passive recreation purposes].” Id. On appeal, the First Circuit affirmed the district court’s exclusion of the landowner’s highest and best use evidence. Id. at 8-9. As an initial matter, the court found that because the landowner conceded that the 34 acres could not be used for.residential development or sand extraction without rezoning or the authorization of a variance, the landowner had the burden to show that “there is a reasonable probability that the property would be rezoned or that a variance .could have been obtained in the near future.” Id. at 8. However, the court found that the landowner did not meet his burden. Id. The court noted that the landowner had not spoken to anyone at the zoning board and had not made any showing that the board “would approve a rezoning, variance, or permits for residential development or sand extraction on this land.” Id. Additionally, the landowner did not present any evidence that sand extraction was’ever permitted ón the land. Id. As a result, the court concluded, the “district court was clearly within its discretion to exclude” the landowner’s proffered evidence. Id. at 9. The district court’s factual findings in this case, like the court in 33.92356 Acres Of Land, adequately supported its determination' that Thomas had not carried his burden. ■ As the district court found, Thomas did not show any reasonable probability that the property could be rezoned for commercial use. The uncontested evidence presented at trial established that most of the property is zoned for agricultural-residential purposes, with only a smaller portion being zoned as rural center district. As the landowner, Thomas had the burden of showing that the property “is adaptable and needed or likely" }, { "docid": "21044823", "title": "", "text": "portion of it could be subdivided in the near future,” there was sufficient evidence that the property was “adaptable and needed or likely to be needed in the reasonably near future for home site development along the road” (internal quotation marks and citation omitted)). Indeed, the drafters of the Model Eminent Domain Code have recognized: [A]U parts of an entire tract of property do not necessarily have equal value. The fair market value of property which, before the taking, was part of a larger parcel should thus be determined by considering both the value of the entire tract and the relationship of the part taken to the whole. Under some circumstances, the severed part may have a value for its highest and best use which is independent from that of the entire parcel. In other situations, the part taken may be so related to and may so contribute to the value of the entire property that its value for its highest and best use is dependent upon the value of the entire tract.... [P]arties [should be] free to present competent evidence in support of their respective theories of independent or dependent . value from a market perspective, so that the property owner may be compensation [sic] for the part taken at not less than the fair market value shown by the approach which the trier of fact deems most,persuasive. Model Eminent Domain Code § 1105, Comment to 2002 Main Volume. ■ And for all of the Government’s arguments that Defendants’ witnesses are calculating lost value for separate parts of the land- and adding them together, the Government’s expert has functionally done the same thing. That' is, Pettey would determine just compensation for the Moores Mill tract by assigning (1) a diminution in value to the entire tract based on an estimated $60,500 cost to construct two-short access roads across the easement ; (2) an additional 96% diminution specific to the 6.09 acres of the easement itself, and (3) the same 96% diminution to an additional 2.79 acres on the remainder bordering the easement, which he deemed an “uneconomic remnant,” and" }, { "docid": "13927458", "title": "", "text": "as a comprehensive subdivision or if sold in parcels for homesites. The Court did permit the appellants to make an offer of proof for the purpose of establishing a record on appeal. This Court is satisfied that in refusing to hear and consider evidence relating to the potential value of the appellants’ property for homesites the Trial Court committed error. The language of the Supreme Court in Olson v. United States, 292 U.S. 246, 54 S.Ct. 704, 78 L.Ed. 1236 (1934), appears to be most relevant to the situation before us. In Olson, supra, the United States instituted condemnation proceedings to acquire easements for flowage of water upon lands bordering upon Lake of the Woods in Minnesota. The issue before the Supreme Court of the United States was whether “the actual use and special adaptability of the landowners’ shore-lands for the flowage and storage of water, that inter alia will be available for the generation of power may be taken into consideration in ascertaining the just compensation to which the landowners are entitled.” The Supreme Court said: “Just compensation includes all elements of value that inhere in the property, but it does not exceed market value fairly determined. The sum required to be paid the owner does not depend upon the uses to which he has devoted his land but is to be arrived at upon just consideration of all the uses for which it is suitable. The highest and most profitable use for which the property is adaptable and needed or likely to be needed in the reasonably near future is to be considered, not necessarily as the measure of value, but to the full extent that the prospect of demand for such use affects the market value while the property is privately held. (Cases cited.)” pgs. 255-256, 54 S.Ct. pp. 708-709. (Emphasis added.) The Court went on to say: “Elements affecting value that depend upon events or combinations of occurrences which, while within the realm of possibility, are not fairly shown to be reasonably probable, should be excluded from consideration, for that would be to allow mere speculation" }, { "docid": "22244458", "title": "", "text": "reasonably near future. See also McGovern v. New York, 1913, 229 U.S. 363, 372, 33 S.Ct. 876, 57 L.Ed. 1228. In a similar case from this Circuit, United States v. Cooper, 5 Cir., 1960, 277 F.2d 857, we too overturned a just compensation award based on the value of the land as a potential hydroelectric site, on the ground that there had been a “complete failure of proof” that use as a dam site was a reasonably probable use, id. at 859. Relying on Olson, we held that the prerequisite to having land valued on the basis of a particular potential use was proof that the use was practicable and that there was a reasonable likelihood that the land would be so used in the reasonably near future. Id. Absent such proof, there would be no legitimate reason for concluding that there is any market demand for the property as so used, and therefore no legitimate reason for concluding that the property has any additional market value because of its asserted suitability for that use. In short, absent such proof the alleged potential use remains a speculative use for which, as a matter of law, the landowner cannot be compensated. Consequently, there k# no reason to allow the jury (or commission), in deciding the issue of just compensation, to even consider any use that is not reasonably probable. “Elements affecting value that depend upon events or combinations of occurrences which, while within the realm of possibility, are not fairly shown to be reasonably probable should be excluded from consideration * * Olson v. United States, supra, 292 U.S. at 257, 54 S.Ct. at 709. At the very least, then, the trial judge has the responsibility under Rule 71A(h) to screen the proffered potential uses and exclude from jury consideration those which have not been demonstrated to be practicable and reasonably probable uses. But should the trial judge go further and actually decide, from among various practicable and reasonably probable uses, what one use (or combination of uses) actually represents the highest and best use of the property for purposes of" }, { "docid": "21044777", "title": "", "text": "the existing use is on the landowner. 320.0 Acres of Land, 605 F.2d at 826. Further, courts in this circuit have an obligation “to screen the proffered potential uses and exclude from the jury’s consideration evidence those which have not been demonstrated to be practicable and reasonably probable uses.” Id., 605 F.2d at 815. That is, the court is to exclude evidence of proposed future uses unless the landowner makes a preliminary, prima facie showing that such “use [is] practicable and that there [is] reasonable likelihood that the land would be so used in the reasonably near future.” Id., 605 F.2d at 814. B. Defendants have disclosed in discovery that they intend to solicit opinions from three witnesses as it relates to highest and best use of the two tracts and their diminished value. First, Defendants have produced a report pursuant to Fed. R. Civ. P. 26(a)(2)(B) from a retained expert, Scott B. Maddox, a certified real estate appraiser. (Doc. 38-2). Maddox’s initial report is based upon an appraisal dated November 10, 2014, which opined that the just compensation for the taking is $827,000.00. (Id. at 3). In arriving at that figure, Maddox made the following loss-value determinations-and added them together: (1)$340,000 (rounded from 5.22 acres @ $65,000 per acre) for the inability to develop a proposed “commercial corner”' lot on the southwest corner of the Moores Mill tract, where Moores Mill Road meets Steger Road (see id. at 33); (2) $426,000 for' the inability to develop 28 proposed residential lots on the western edge of the tracts, along Moores Mill Road where the power lines abe located, based on an assumption that such lots would be sold at an average price of $20,000 each over a period of 2.25 years (id. at 39); and (3) $61,000 for the inability to develop a 5.1-acre “buffer” area between the power lines and the first line of proposed residential development to the east. (Id, at 40). On January 2, 2015, Maddox issued a supplemental expert report. (Doc. 38-13). Maddox acknowledged therein that he had made a miscalculation in his original report as" }, { "docid": "22244459", "title": "", "text": "In short, absent such proof the alleged potential use remains a speculative use for which, as a matter of law, the landowner cannot be compensated. Consequently, there k# no reason to allow the jury (or commission), in deciding the issue of just compensation, to even consider any use that is not reasonably probable. “Elements affecting value that depend upon events or combinations of occurrences which, while within the realm of possibility, are not fairly shown to be reasonably probable should be excluded from consideration * * Olson v. United States, supra, 292 U.S. at 257, 54 S.Ct. at 709. At the very least, then, the trial judge has the responsibility under Rule 71A(h) to screen the proffered potential uses and exclude from jury consideration those which have not been demonstrated to be practicable and reasonably probable uses. But should the trial judge go further and actually decide, from among various practicable and reasonably probable uses, what one use (or combination of uses) actually represents the highest and best use of the property for purposes of the just compensation determination? A number of cases indicate that he should not, that if the landowner’s evidence is sufficient to show that a prospective use is feasible and reasonably probable, the landowner is then entitled to have that evidence considered by the jury (or the commission). Among these decisions is one from the Supreme Court — McCandless v. United States, 1936, 298 U.S. 342, 56 S.Ct. 764, 80 L.Ed. 1205. The condemnees in that case had tendered evidence that, by bringing in water from neighboring lands for irrigation purposes, their lands could be converted from their existing use as a cattle ranch to a more profitable use as a sugar plantation. The trial court did not permit the jury to hear this evidence. The Supreme Court reversed. It first reiterated the principle of Olson that the most profitable use to which the land can probably be put in the reasonably near future should be considered to the extent it affects market value. It then held, contrary to the conclusion of the trial court, that" }, { "docid": "14210296", "title": "", "text": "because it’s the first of its kind.” ■ Id. at 112-13. The court characterized the landowner’s testimony as “lack[ing][ ] credible evidence of a demand for the proposed use in the reasonably near future,” reasoning that “[tjhere must be some objective support for. the .future demand, including volume and duration.” • Id. at 113 (citation and internal quotation marks omitted). The court also reasoned that “[vjalue implies demand and a buyer” and that the landowner’s “testimony assumed both.” Id. (citation and internal quotation marks omitted). As a result, the court reversed the district court’s ruling and remanded the case for a new trial. Id. at 114. There are certainly parallels between Thomas’ situation and that presented in 34.145 Acres of Land. Thomas testified about what he thought were demand generators for a hotel, but did pot supply any objective evidence substantiating his market demand analysis. Thomas simply did not do some of the things, that one would expect a person in his position to do — e.g., engage in any sort of preliminary discussions with a prospective hotel chain, present market studies showing a sufficient demand for á hotel, or show market sales of land- for hotel ■ development purposes. On the facts presented, it ■ is difficult to conclude that the district court erred in finding speculative Thomas’ market demand analysis — especially when applying an abuse of discretion standard of review. The fact remains though that Thomas, who bore the burden of proof, did not overcome the presumption that the highest and best use of the property was its existing use as agricultural land. The property is zoned mainly for agricultural use and Thomas continued to use the property for agricultural purposes after closing on its sale. This evidence overwhelmingly supported the district court’s decision to exclude from jury consideration any evidence whose admissibility depended upon the property having commercial use. III. Judgment as a Matter of Law Finally, Thomas challenges the district court’s grant of judgment as a matter of law to the TVA. We review de novo a district -court’s grant of judgment as a matter" }, { "docid": "14210292", "title": "", "text": "to be needed in- the'reasonably near future” for commercial use. Olson, 292 U.S. at 255, 54 S.Ct. 704. In other words,! Thomas had the burdén of showing that the property could be rezoned to allow for commercial uses. Yet, Thomas did not present any evidence whatsoever suggesting that Coffee County would approve a rezoning, variance, or permits for commercial development on the property. Nor was any evidence presented that such variances had been perniitted with' respect to similarly zoned parcels in the past. Just like the landowner in 33.92856 Acres Of Land, Thomas himself acknowledged that the property would need to be rezoned to allow the development of a hotel. And Thomas also acknowledged that a hotel is not listed as a permitted or conditional use in the A-l or C-l zoning districts. Although Thomas stated that he thought the property could be rezóned to allow the development of a hotel, he testified that he had not actually sought a rezoning. Thomas even acknowledged that he ■ had not shown that a zoning change was reasonably probable in the future. Based on all of this evidence, we conclude that Thomas failed to show, by a preponderance of evidence, that a jury could find- that ■ there was a reasonable probability that the property would be rezoned commercial. Therefore, the district court did not err in declining to submit this issue to the jury. it Future Market Demand Thé district court also found that Thomas did not offer evidence showing the market demand for a hotel. As we have stated previously, “it is generally accepted that there must be demonstrated an actual profitable use or a market demand for the prospective use.” United States ex rel. TVA v. Easement & Right of Way 100 Feet Wide, 447 F.2d 1317, 1319 (6th Cir.1971) (citation omitted). This question presents somewhat of a closer call because Thomas did testify about the future market demand for a hotel. Thomas testified that his property is optimally located for a hotel because it would draw customers from the nearby Bonnaroo festival and also from the several businesses" }, { "docid": "21044776", "title": "", "text": "Acres of Land, 605 F.2d at 781 (quoting Olson, 292 U.S. at 255, 54 S.Ct. 704); see also A.A. Profiles, 253 F.3d at 583. The highest' and best use of a parcel is “the reasonably probable and legal úse of vacant land or improved property, which is physically possible, appropriately-supported, financially feasible, and that results in the highest value.” Lost Tree Vill. Corp. v. United States, 787 F.3d 1111, 1118 (Fed.Cir.2015). “The fact that the most profitable use of a parcel can be made only in combination with other lands does hot necessarily exclude that use from consideration if the possibility of combination is reasonably sufficient to affect mar ket value.” Olson, 292 U.S. at 256, 54 S.Ct. 704. It is presumed, however, that the actual use of the land is also its highest and best, “because economic demands normally result in an owner’s putting his land to the most advantageous use.” United States v. Buhler, 305 F.2d 319, 328 (5th Cir.1962), The burden at trial of establishing a highest and best use other than the existing use is on the landowner. 320.0 Acres of Land, 605 F.2d at 826. Further, courts in this circuit have an obligation “to screen the proffered potential uses and exclude from the jury’s consideration evidence those which have not been demonstrated to be practicable and reasonably probable uses.” Id., 605 F.2d at 815. That is, the court is to exclude evidence of proposed future uses unless the landowner makes a preliminary, prima facie showing that such “use [is] practicable and that there [is] reasonable likelihood that the land would be so used in the reasonably near future.” Id., 605 F.2d at 814. B. Defendants have disclosed in discovery that they intend to solicit opinions from three witnesses as it relates to highest and best use of the two tracts and their diminished value. First, Defendants have produced a report pursuant to Fed. R. Civ. P. 26(a)(2)(B) from a retained expert, Scott B. Maddox, a certified real estate appraiser. (Doc. 38-2). Maddox’s initial report is based upon an appraisal dated November 10, 2014, which opined" }, { "docid": "14210288", "title": "", "text": "such use. The court’s ruling was based on the fact that Thomas did not present any evidence as to the market demand for a hotel, and also because there was no evidence that the property .could be rezoned for commercial purposes. Thomas now appeals that ruling. He argues that he introduced sufficient evidence for a jury to conclude that there was a reasonable probability that his property would be rezpned commercial. The Supreme Court’s ruling in .Olson, while not a bright line rule, provides that a proposed “use” requires a showing of reasonable probability that the land is both physically adaptable for such use and that there is a demand for such use in the reasonably near future. Olson, 292 U.S. at 255-57, 54 S.Ct. 704. i. Rezoning Probability Under Olson’s first ■ prong, we must first determine whether Thomas established that his proffered use of the property was reasonably probable so as to avoid speculation and conjecture. The First Circuit considered an analogous situation in 33.92356 Acres Of Land, supra. In that case, a landowner appealed from an' assessment of damages resulting from the government’s condemnation of approximately 34 acres of land. 585 F.3d at 3. The 34-acre parcel was zoned for conservation and passive recreation purposes. Id. No other uses were permitted without a variance or permit. Id. at 3-4. At the time of the taking, the government deposited $375,300 with the district court as estimated just compensation. Id. at 4. This estimate was based on a highest and best use of the property for conservation and passive recreation. Id. The landowner, on the other hand, retained an expert who would testify that the highest and best use of the parcel was for the construction of residences and sand extraction. Id. However, neither use was permissible under the zoning ordinance, absent permission from the zoning board. Id. Before, trial, the district court had granted the government’s motion in limine to exclude the expert’s testimony. Id. at 5. The district court adopted the magistrate judge’s report and recommendation, which concluded that the expert’s “opinion, by itself,’ fails to establish" }, { "docid": "23512146", "title": "", "text": "The second address for Mike’s was also a house in a residential neighborhood. Neither gives the appearance of housing a business that would legitimately generate anywhere near a quarter of a million dollars in cash. IV. A Under the civil forfeiture statute applicable to this case, “[a]ll moneys ... fur nished or intended to be furnished by any person in exchange for a controlled substance ..., all proceeds traceable to such an exchange, and all moneys ... used or intended to be used to facilitate any violation of’ the drug laws “shall be subject to forfeiture to the United States.” 21 U.S.C. § 881(a)(6) (1994). The government has the initial burden of showing probable cause to believe that the money is the proceeds of, or is otherwise connected to, any illegal drug transaction. United States v. Carrell, 252 F.3d 1193, 1201 (11th Cir.2001). Probable cause in this context is a “reasonable ground for belief of guilt, supported by less than prima facie proof but more than mere suspicion — the same standard used to determine the legality of arrests, searches, and seizures in criminal law.” United States v. Four Parcels of Real Prop. in Greene & Tuscaloosa Counties, 941 F.2d 1428, 1440 (11th Cir.1991) (internal quotation marks and citations omitted); see also United States v. Cleckler, 270 F.3d 1331, 1334 (11th Cir.2001) (per curiam) (same); United States v. Four Parcels of Real Prop. on Lake Forrest Circle, 870 F.2d 586, 590 n. 10 (11th Cir.1989) (probable cause in this context is “the same standard used to determine the legality of arrests, searches, and seizures in criminal law”); United States v. $364,960.00, 661 F.2d 319, 323 (5th Cir. Unit B 1981) (noting “that the definition of probable cause applicable here is the same as that which applies elsewhere”). The government may use both circumstantial evidence and hearsay evidence to show probable cause. Four Parcels of Real Prop. in Greene & Tuscaloosa Counties, 941 F.2d at 1440. It does not need to show a relationship between the property and a particular drug transaction — only that the property was related to some" }, { "docid": "16266493", "title": "", "text": "that this court must perform. Defendant also asserts that, before plaintiffs’ purchased the land, “the parcels were being used for various purposes including l’esidential, agricultural and forestry____ The market value of the acquired parcels, as well as the ability to continue their current uses, did not magically terminate upon their acquisition by Plaintiff RII.” Def.’s Resp. 12. Plaintiffs could have, according to defendant, engaged in uses such as construction of housing or renting the land, or “any number of profitable endeavors” and “innumerable other uses,” including leasing or selling the property for development or developing it themselves. Def.’s Cross-Mot. Summ. J. 57. According to defendant, “[a]ll four of the lots were immediately and individually marketable,” Def.’s Resp. 12, and merely “[holding] the property for future investment appreciation ... is also an economic use” Def.’s Cross-Mot. Summ. J. 57. Defendant further offers that the land could produce commercially salable hay as another such use. Def.’s Resp. to Pis.’ Facts 1188; Pis.’ Ex. 95 at 1376. These are the sum total of alternative uses of the land that defendant provides to support that economically viable use did exist. Yet, this court is bound to “discount proposed [economically viable] uses that do not meet a showing of reasonable probability that the land is both physically adaptable for such use and that there is a demand for such use in the reasonably near future.” Loveladies Harbor, Inc. v. United States, 21 Cl.Ct. 153, 158 (1990) (emphasis in original; internal quotation marks omitted). Upon further examination, some of these uses turn out to be mere attorney argument without support in the record; other nominal uses may exist, at least insofar as they are uses that could have some accounting value in a line on a balance sheet. And as this court has just explained, that a parcel has some market value does not establish that it retains economically viable use. Despite these uses in name, defendant fails to identify any record evidence showing that plaintiffs could have made any other economically viable and legal use of the parcel. In particular, defendant overlooks that although a" }, { "docid": "924785", "title": "", "text": "the owner does not depend upon the uses to which he has devoted his land but is to be arrived at upon just consideration of all the uses for which it is suitable. The highest and most profitable use for which the property is adaptable and needed or likely to be needed in the reasonably near future is to be considered, not necessarily as the measure of value, but to the full extent that the prospect of demand for such use affects the market value while the property is privately held. Id. at 255, 54 S.Ct. at 708 (emphasis added) (citations omitted). The Supreme Court in Olson also noted that “physical adaptability alone” for-a certain use “cannot be deemed to affect market value.” Id. at 256, 54 S.Ct. at 709. Olson cautions that: Elements affecting value that depend upon events or combinations of occurrences which, while within the realm of possibility, are not fairly shown to be reasonably probable, should be excluded from consideration, for that would be to allow mere speculation and conjecture to become a guide for the ascertainment of value-a thing to be condemned in business transactions as well as in judicial ascertainment of truth. Id. at 257, 54 S.Ct. at 709 (citations omitted). Thus, Olson teaches that a proposed “use” requires a showing of reasonable probability that the land is both physically adaptable for such use and that there is a need or demand for such use in the reasonably near future. Our concern in this case is whether the landowners established that the proffered uses of the land were reasonably probable so as to avoid mere speculation and conjecture. The trial judge believed that the jury could decide whether subdivision of the property would be feasible and whether there would be a demand for such lots. There was no preliminary review of the potential use evidence prior to its admission by the trial court. The Fifth Circuit in United States v. 320.0 Acres, County of Monroe, Fla. [Monroe], 605 F.2d 762 (5th Cir. 1979), found that “[a]t the very least” it is the responsibility of" }, { "docid": "22244472", "title": "", "text": "taking, stilt houses, boat docks, elevated boardwalks, etc., were practicable uses and that there was a reasonable likelihood that their properties would be so used in the reasonably near future. United States v. Cooper, supra (p. 814, supra). And if the Government demonstrates that any of these uses are subject to local zoning restrictions or to the regulatory authority of other local or state agencies or federal agencies such as the U.S. Army Corps of Engineers, the landowners bear the additional burden of showing that there was, at the time of taking, a reasonable possibility that the use nonetheless would have been permitted. On the basis of the little evidence in the record before us, it appears likely that some of the owners will be unable to meet this threshold burden of proof, that for some of the properties these claimed potential uses are indeed too speculative and remote to serve as a basis for awarding compensation. On the other hand, some of the owners may well be able to produce “juryworthy” (or “commissionworthy”) evidence that their properties were, even given the existence of various regulatory restrictions, reasonably suitable for at least some of these uses. But all this is a matter for the trial court to decide in the first instance upon a much more complete evidentiary presentation than is currently available to us. And if an owner's evidence is sufficient to survive the preliminary judicial screening, it then falls to the trier of fact to decide upon all the evidence and under proper instructions whether, and by how much, his property is enhanced because of its suitability for any of these uses. VI. ILLEGAL EXISTING USES Of course, it would be impossible to hold that permanent structures such as cabins were not feasible, practicable uses for any of the properties. For 3 of the 52 tracts that remain before us on appeal, along with one parcel whose owner did not appeal, had already been improved with cabins at the time of taking. Yet at trial, the juries were not permitted to receive evidence of these existing improvements, and" }, { "docid": "22244471", "title": "", "text": "is the trial court’s responsibility under Rule 71A(h) to screen all proffered potential use evidence and exclude from consideration by the trier of fact evidence of any potential uses upon which a just compensation award may not, as a matter of law, be based. This of course encompasses alleged potential uses which have not been demonstrated to be practicable and reasonably probable even absent regulatory restrictions as well as potential uses that are proscribed by legal restrictions from which there is no reasonable possibility of relief. If, however, the party offering the potential use evidence (almost invariably, the landowner) is able to meet this threshold burden, then evidence pertaining to that use must be submitted to the trier of fact under whatever instructions are appropriate, and the weight of that evidence as regards the fair market value of the property is for the trier of fact to decide. With respect then to the 52 tracts in this case, the landowners on remand bear the burden of producing credible evidence that as of the time of taking, stilt houses, boat docks, elevated boardwalks, etc., were practicable uses and that there was a reasonable likelihood that their properties would be so used in the reasonably near future. United States v. Cooper, supra (p. 814, supra). And if the Government demonstrates that any of these uses are subject to local zoning restrictions or to the regulatory authority of other local or state agencies or federal agencies such as the U.S. Army Corps of Engineers, the landowners bear the additional burden of showing that there was, at the time of taking, a reasonable possibility that the use nonetheless would have been permitted. On the basis of the little evidence in the record before us, it appears likely that some of the owners will be unable to meet this threshold burden of proof, that for some of the properties these claimed potential uses are indeed too speculative and remote to serve as a basis for awarding compensation. On the other hand, some of the owners may well be able to produce “juryworthy” (or “commissionworthy”) evidence" }, { "docid": "14210291", "title": "", "text": "court noted that the landowner had not spoken to anyone at the zoning board and had not made any showing that the board “would approve a rezoning, variance, or permits for residential development or sand extraction on this land.” Id. Additionally, the landowner did not present any evidence that sand extraction was’ever permitted ón the land. Id. As a result, the court concluded, the “district court was clearly within its discretion to exclude” the landowner’s proffered evidence. Id. at 9. The district court’s factual findings in this case, like the court in 33.92356 Acres Of Land, adequately supported its determination' that Thomas had not carried his burden. ■ As the district court found, Thomas did not show any reasonable probability that the property could be rezoned for commercial use. The uncontested evidence presented at trial established that most of the property is zoned for agricultural-residential purposes, with only a smaller portion being zoned as rural center district. As the landowner, Thomas had the burden of showing that the property “is adaptable and needed or likely to be needed in- the'reasonably near future” for commercial use. Olson, 292 U.S. at 255, 54 S.Ct. 704. In other words,! Thomas had the burdén of showing that the property could be rezoned to allow for commercial uses. Yet, Thomas did not present any evidence whatsoever suggesting that Coffee County would approve a rezoning, variance, or permits for commercial development on the property. Nor was any evidence presented that such variances had been perniitted with' respect to similarly zoned parcels in the past. Just like the landowner in 33.92856 Acres Of Land, Thomas himself acknowledged that the property would need to be rezoned to allow the development of a hotel. And Thomas also acknowledged that a hotel is not listed as a permitted or conditional use in the A-l or C-l zoning districts. Although Thomas stated that he thought the property could be rezóned to allow the development of a hotel, he testified that he had not actually sought a rezoning. Thomas even acknowledged that he ■ had not shown that a zoning change was" }, { "docid": "16266494", "title": "", "text": "that defendant provides to support that economically viable use did exist. Yet, this court is bound to “discount proposed [economically viable] uses that do not meet a showing of reasonable probability that the land is both physically adaptable for such use and that there is a demand for such use in the reasonably near future.” Loveladies Harbor, Inc. v. United States, 21 Cl.Ct. 153, 158 (1990) (emphasis in original; internal quotation marks omitted). Upon further examination, some of these uses turn out to be mere attorney argument without support in the record; other nominal uses may exist, at least insofar as they are uses that could have some accounting value in a line on a balance sheet. And as this court has just explained, that a parcel has some market value does not establish that it retains economically viable use. Despite these uses in name, defendant fails to identify any record evidence showing that plaintiffs could have made any other economically viable and legal use of the parcel. In particular, defendant overlooks that although a proposed use may have, in the abstract, a theoretical accounting value, that gross gain on paper might also create a net loss in reality. Cf. Bowles v. United States, 31 Fed.Cl. 37, 48-49 (finding no economically viable use because property taxes made the parcel a net liability). The most glaring error of this sort ignores the property tax status of the parcel, which was undervalued for tax purposes because part of the property was classified as open space and thus taxed at a lower value. Pis.’ Ex. 97 at 1539-45. If plaintiffs developed the property for any interim economic use, they would not only lose this tax benefit, but would be responsible for seven years’ worth of increased back taxes, along with a 20% penalty and interest on the amount in arrears. Id.; see Bowles v. United States, 31 Fed.Cl. at 48-49 (finding a proposed alternative use not economically viable because the property tax implications of that allegedly profitable use would result in a net loss). Defendant thus failed to establish that its proposed alternatives" }, { "docid": "14210279", "title": "", "text": "Thus, the expert’s .testimony should not have been admitted because what he testified to was not “fairly shown to be reasonably probable.” Id. (citation -and internal quotations omitted). Baséd on the case law, we find no abuse of discretion in the district court’s'exclusion of Wilson’s proposed testimony. Like the testimony'admitted in 47.3096 Acres of Land, Wilson’s proposed testimony was purely speculative and not based upon any actually observed date. His expert report did not present any supporting evidence to show that the existence of above-ground power lines on the property renders the development of a hotel financially unfeasible. As, the district court correctly noted, Wilson’s expert report did not offer evidence showing the market demand for a hotel, nor did it, provide any analysis as to whether or not Thomas’ proposed development was even feasible. Wilson simply stated that hotel guests would be turned off by the aesthetic impact of a power line. Moreover, nowhere in Wilson’s statement was . there any méntion of whether Coffee County-would approve a -rezoning, variance, or permits for commercial development on this property. Nor was there evidence that such variances had been permitted with respect to similarly zoned parcels , in the . past. As the district court noted, the property “is currently zoned for agricultural, use” and Wilson’s statement “provides no basis-for the jury to conclude that, absent the transmission lines, there is a reasonable future probability to conclude that Mr. Thomas’ property could be rezoned for commercial use and that it could successfully be developed for placement of a tier one, limited use service hotel.”. (R. 75, District Court’s Order, PageID#477.) Similarly, Wilson had not reviewed or identified any document showing that the development of a hotel was ever permitted in land in .Coffee County that is zoned A-l, i.e., agricultural-residential zoning. See, e.g., Rockies Express Pipeline, LLC v. Burtle, 492 Fed.Appx. 666, 670 (7th Cir.2012) (excluding thq .landowner’s proffered expert testimony because the expert “speculated that the highest and best use of the landowners’ properties was for commercial or residential use, even though the properties were only zoned and Used for" }, { "docid": "20382282", "title": "", "text": "must screen the proffered best and highest uses and “exclude from jury consideration those which have not been demonstrated to be practicable and reasonably probable uses.” United States v. 320.0 Acres of Land, 605 F.2d 762, 815 (5th Cir.1979); see United States v. Certain Land Situated in Detroit, 450 F.3d 205, 211 (6th Cir.2006); United States v. 62.50 Acres of Land, 953 F.2d 886, 891 (5th Cir.1992); United States v. 341.45 Acres of Land, 633 F.2d 108, 111-112 (8th Cir.1980); see also United States v. Reynolds, 397 U.S. 14, 19-21, 90 S.Ct. 803, 25 L.Ed.2d 12 (1970). The defendant here concedes that, as zoned, the 34 acres could not legally be used for residential development or sand extraction without rezoning or some variance or permit by the Board. As a result, the defendant must show that there is a reasonable probability that the property would be rezoned or that a variance could have been obtained in the near future. The defendant argues that the property was inadvertently mis-zoned B-2 by the Board, and that the Board would either change the zoning or grant a variance. The district court did not abuse its discretion in concluding that there was no evidentiary basis for this opinion and excluding the testimony. Gaztambide had not spoken to anyone at the Board or otherwise offered any support for his opinion that the Board would approve a rezoning, variance, or permits for residential development or sand extraction on this land. Nor was there evidence that such variances had been permitted with respect to similarly zoned parcels in the past. As the magistrate judge noted, the expert “has failed to document a single instance [in which the Board] has ever, or is likely to, approve residential housing developments on land zoned B-2.” Report and Recommendation at 10, United States v. 33.92356 Acres, No. 98-1664, dkt. 155 (D.P.R. Apr. 24, 2007). There was no evidence that any of the parcels that Gaztambide had relied on to show residential development were or had been zoned B-2. The expert also relied on applications to obtain permits for residential development on" } ]

[ { "docid": "23619885", "title": "", "text": "drug convictions would have been punishable under the Controlled Substances Act. See 21 U.S.C. § 844(a) (1998). The crucial issue, therefore, is whether the convictions are “felonies” as that term is used in the federal statutes at issue here. The answer to this question is not immediately clear from the statutory scheme described above. Of the three federal statutes referenced, only one, the Controlled Substances Act, gives any indication of what Congress meant when it used the word “felony” in this context. The Controlled Substances Act defines “felony” as “any Federal or State offense classified by applicable Federal or State law as a felony.” 21 U.S.C. § 802(13) (emphasis added). The government argues we should interpret this language to mean that an offense is a felony under the Controlled Substances Act as long as the convicting jurisdiction labels it as such, without regard to the punishment designated for the offense. We see how this language, viewed in isolation and without regard to context or precedent, might be susceptible to the interpretation suggested by the government. We reject this interpretation, however, for a number of reasons. First, the government’s interpretation conflicts with the same statute’s later definition of “felony drug offense” as “an offense that is punishable by imprisonment for more than one year under any law of the United States or of a State or foreign country.” 21 U.S.C. § 802(44) (emphasis added). If the government’s position were correct, a drug offense could be a felony (and therefore a “felony drug offense”) even if punishable by less than one year’s imprisonment — a result clearly inconsistent with the statute’s definition of “felony drug offense.” It is a basic rule of statutory construction that “[o]ne provision of a statute should not be interpreted in a manner that renders other sections of the same statute inconsistent, meaningless or superfluous.” United States v. Fiorillo, 186 F.3d 1136, 1153 (9th Cir.1999). Reading both definitions together, we conclude that Congress intended the word “felony” to describe offenses punishable by more than one year’s imprisonment under applicable state or federal law. Second, we observe that Congress" } ]

[ { "docid": "22176626", "title": "", "text": "Sixth Circuits would rule that Amaya-Portillo’s drug possession offense is an aggravated felony because neither court has considered whether a state crime labeled a misdemeanor, but also punishable by more than one year’s imprisonment, is an aggravated felony. In fact, their analysis concluding that the length of possible imprisonment is the deciding factor is not particularly instructive because they have not confronted the issue before us now. In addition, we do not find the Ninth Circuit’s analysis persuasive. In Wilson, the Court stated that the definition of “felony” as “any Federal or State offense classified by applicable Federal or State law as a felony” is “clear and unambiguous.” Wilson, 316 F.3d at 512. We see no reason to look to the definition of a “felony drug offense” to determine whether Amaya-Portillo’s drug crime is a “felony punishable under the Controlled Substances Act.” See 18 U.S.C. 924(c)(2). Section 924(c)(2) could easily have defined a “drug trafficking crime” as a “felony drug offense” punishable under the Controlled Substances Act. Yet it does not; it defines a “drug trafficking crime” as a “felony punishable under the Controlled Substances Act.” 18 U.S.C. 924(c)(2). “Felony” and “felony drug offense” are two different terms with different definitions under the CSA. Compare 21 U.S.C. 802(13) with 21 U.S.C. 802(44). Had Congress intended to define a “drug trafficking crime” as a drug offense punishable by imprisonment for more than one year, it easily could have done so. Although this interpretation does create an odd result, where Amaya-Portillo’s drug possession offense is a “felony drug offense,” but not a “felony,” under the CSA, we refuse to misread the statute to create a more consistent result. Moreover, the fact that Section 924(c)(2) is so written provides evidence that Congress “intended to abandon its general approach of using uniform categorical definition to identify predicate offenses.” Robles-Rodriguez, 281 F.3d at 904. Finally, our interpretation gives deference to a state’s judgment, not as to the appropriate punishment, but as to whether the offense is a felony. We see no reason to conclude that Congress intended the question of whether simple drug possession is" }, { "docid": "4384533", "title": "", "text": "Defendant’s second Arizona conviction for possession of marijuana was an “aggravated felony.” Relying on this court’s recent decision in United States v. Robles-Rodriguez, 281 F.3d 900 (9th Cir.2002), the district court denied the government’s request for an enhancement. A. Robles-Rodriguez In Robles-Rodriguez, we analyzed whether two state drug-possession convictions, for which Arizona’s Proposition 200 mandates a maximum penalty of probation, qualified as either aggravated felonies or felony offenses for purposes of U.S.S.G. § 2L1.2. Id. at 901-02. To arrive at our conclusion that the defendant’s first and second-time Arizona drug-possession convictions were not aggravated felonies, we navigated a confusing maze of statutory cross-references. First, we noted that “aggravated felony” is defined for purposes of U.S.S.G. § 2L1.2 at 8 U.S.C. § 1101(a)(43). Id. at 903; see U.S.S.G. § 2L1.2, cmt. n. 1 (2000). Then, we explained that 8 U.S.C. § 1101(a)(43)(B) defines “aggravated felony” as “including ‘a drug trafficking crime (as defined in section 924(c) of Title 18).’ ” Robles-Rodriguez, 281 F.3d at 903. According to 18 U.S.C. § 924(c)(2), a “drug trafficking crime” means “ ‘any felony punishable under the Controlled Substances Act (21 U.S.C. § 801 et seq.).’ ” Id. Additionally, we noted that 21 U.S.C. § 802(13), the relevant provision of the Controlled Substances Act, states that a “felony” is “‘any Federal or State offense classified by applicable Federal or State law as a felony.’ ” Id. Relying on case law and federal statutes, we held that whether the convicting jurisdiction labels the offense a felony is irrelevant. Id. at 903-04. Instead, an offense is to be classified as a felony for purposes of the Controlled Substances Act only if it is “punishable by more than one year’s imprisonment under applicable state or federal law.” Id. at 904. In applying that analysis to the crimes at issue in Robles-Rodriguez, we declined to decide whether the possessory offenses were labeled felonies under Arizona law. Id. at 902 n. 2. Instead, we focused on the potential punishment. Because, under state law, the maximum penalty for the defefidant’s offenses was probation, they did not qualify as felonies for purposes of" }, { "docid": "7996981", "title": "", "text": "state or federal law and (2) the conduct underlying the conviction is punishable under the CSA (or the other two statutes not at issue here). Garcia-Echaverria, 376 F.3d at 512. Courts adopting this approach rely on the fact that within the CSA itself, the term “felony” is defined as “any Federal or State offense classified by applicable Federal or State law as a felony.” 21 U.S.C. § 802(13). “Under this interpretation, a drug offense that is punishable as a felony under state law could be considered an ‘aggravated felony,’ for purposes of applying the enhancement contained in U.S.S.G. § 2L1.2, even if the conduct would have only been punishable as a misdemeanor under federal law.” Garcia-Echaverria, 376 F.3d at 512. A clear majority of our sister circuits have adopted this approach to interpret the phrase “aggravated felony” as used in U.S.S.G. § 2L1.2. See United States v. Wilson, 316 F.3d 506, 513 (4th Cir.), cert. denied, 538 U.S. 1025, 123 S.Ct. 1959, 155 L.Ed.2d 871 (2003); United States v. Pornes-Garcia, 171 F.3d 142, 148 (2d Cir.), cert. denied, 528 U.S. 880, 120 S.Ct. 191, 145 L.Ed.2d 161 (1999); United States v. Simon, 168 F.3d 1271, 1272 (11th Cir.), cert. denied, 528 U.S. 844, 120 S.Ct. 114, 145 L.Ed.2d 97 (1999); United States v. Hinojosa-Lopez, 130 F.3d 691, 694 (5th Cir.1997); United States v. Briones-Mata, 116 F.3d 308, 309 (8th Cir.1997); United States v. Cabrera-Sosa, 81 F.3d 998, 1000 (10th Cir.), cert. denied, 519 U.S. 885, 117 S.Ct. 218, 136 L.Ed.2d 151 (1996); United States v. Restrepo-Aguilar, 74 F.3d 361, 365 (1st Cir.1996). The Ninth Circuit has adopted a similar approach to interpreting the term “aggravated felony” within the context of U.S.S.G. § 2L1.2, but has added the further requirement that regardless of how the state classifies the conviction, the offense can be an “aggravated felony” for purposes of § 1101(a)(43)(B) only if it is “punishable by more than one year’s imprisonment under applicable state or federal law.” Robles-Rodriguez, 281 F.3d at 904. The court noted that within the CSA itself, the term “felony drug offense” is defined as “an offense" }, { "docid": "22418460", "title": "", "text": "offense enhancement provisions scattered throughout the Guidelines: any federal or state offense punishable under applicable law by a term of imprisonment of more than one year.” Id. at 366. Only the Ninth and Sixth Circuits have answered this question, holding that a state conviction is a felony for this purpose only if it is punishable by imprisonment for more than one year. United States v. Robles-Rodriguez, 281 F.3d 900, 903-05 (9th Cir.2002); Liao v. Rabbett, 398 F.3d 389, 394-95 (6th Cir.2005). In Robles-Rodriguez, the Ninth Circuit considered whether an Arizona statute that described offenses as “felonies” but for which the maximum penalty authorized by law was probation can be an “aggravated felony.” 281 F.3d at 903. The court reasoned that Congress could not have meant to rely on the CSA’s definition of “felony” to determine what constitutes a “drug trafficking offense” because to do so would strip any real meaning from the term “felony drug offense.” Id. at 904. The court explained that “[i]t is a basic rule of statutory construction that one provision of a statute should not be interpreted in a manner that renders other sections of the same statute inconsistent, meaningless or superfluous.” Id. (internal quotation omitted). Therefore, reading the definitions in §§ 802(13) and (44) together, the court concluded that the term “felony” referred to offenses punishable by more than one year imprisonment under the applicable state or federal law. Id. In addition, the court noted that federal law traditionally equates the term felony with offenses punishable by more than one year imprisonment. Id. (citing United States v. Urias-Escobar, 281 F.3d 165,167-68 (5th Cir.2002)). The court also relied on “the Seventh Circuit’s observation that ‘the punishment chosen for a crime will more accurately and equitably reflect ... the seriousness of that crime than will the crime’s felony/misdemeanor classification.’ ” Id. at 905 (quoting United States v. Jones, 235 F.3d 342, 346 (7th Cir.2000)). The Sixth Circuit adopted the Ninth Circuit’s reasoning in Robles-Rodriguez. Liao, 398 F.3d at 394-95. We also find the Ninth Circuit’s reasoning persuasive. Accordingly, we conclude that Sanchez-Villalobos’s prior conviction satisfies the two" }, { "docid": "22176621", "title": "", "text": "“aggravated felony.” Finally, the Court’s decision in Wilson followed cases from seven other circuits, each of which conducted the “aggravated felony” inquiry by focusing upon the “classification” of an offense under state law rather than upon potential punishment. Wilson, 316 F.3d at 512 (citing United States v. Ibarra-Galindo, 206 F.3d 1337 (9th Cir.2000) ; United States v. Pornes-Garcia, 171 F.3d 142 (2d Cir.1999); United States v. Simon, 168 F.3d 1271 (11th Cir.1999); United States v. Hinojosa-Lopez, 130 F.3d 691 (5th Cir.1997); United States v. Briones-Mata, 116 F.3d 308 (8th Cir.1997); United States v. Cabrera-Sosa, 81 F.3d 998 (10th Cir.1996); United States v. Restrepo-Aguilar, 74 F.3d 361 (1st Cir.1996)). In each of those cases, the defendants had committed offenses that were felonies under state law, but not federal law. Nevertheless, the courts of appeals concluded that the defendants had committed “felonies” for purposes of 21 U.S.C. 802(13), and section 2L1.2 of the Sentencing Guidelines. No court of appeals has squarely addressed the issue presented in this case: whether an offense is a “felony” for purposes of the CSA and section 2L1.2 if the offense is not labeled a felony under state or federal law. The Ninth Circuit has come close to this issue. In United States v. Robles-Rodriguez, 281 F.3d 900, 904 (9th Cir.2002), the court rejected an interpretation of “felony” to “mean that an offense is a felony under the Controlled Substances Act as long as the convicting jurisdiction labels it as such, without regard to the punishment designated for the offense.” Rather, the court concluded that a “felony” under the Controlled Substances Act describes “offenses punishable by more than one year’s imprisonment under applicable state or federal law.” The court came to this conclusion for three reasons. First, it looked to the CSA’s definition of a “felony drug offense” as “an offense that is punishable by imprisonment for more than one year under any law of the United States or of a State or foreign country.” Id. (citing 21 U.S.C. 802(44)(emphasis in original)). The court reasoned that under the interpretation it rejected, a drug offense could be a felony" }, { "docid": "22176622", "title": "", "text": "the CSA and section 2L1.2 if the offense is not labeled a felony under state or federal law. The Ninth Circuit has come close to this issue. In United States v. Robles-Rodriguez, 281 F.3d 900, 904 (9th Cir.2002), the court rejected an interpretation of “felony” to “mean that an offense is a felony under the Controlled Substances Act as long as the convicting jurisdiction labels it as such, without regard to the punishment designated for the offense.” Rather, the court concluded that a “felony” under the Controlled Substances Act describes “offenses punishable by more than one year’s imprisonment under applicable state or federal law.” The court came to this conclusion for three reasons. First, it looked to the CSA’s definition of a “felony drug offense” as “an offense that is punishable by imprisonment for more than one year under any law of the United States or of a State or foreign country.” Id. (citing 21 U.S.C. 802(44)(emphasis in original)). The court reasoned that under the interpretation it rejected, a drug offense could be a felony (and therefore a “felony drug offense”) even if punishable by less than one year’s imprisonment — a result clearly inconsistent with the statute’s definition of “felony drug offense.” Id. Invoking the canon of statutory construction that “one provision of a statute should not be interpreted in a manner that renders other sections of the same statute inconsistent, meaningless, or superfluous,” the court determined that Congress intended the word “felony” to describe offenses punishable by more than one year’s imprisonment under applicable state or federal law. Id. (citing United States v. Fiorillo, 186 F.3d 1136, 1153 (9th Cir.1999)). Second, the court noted that Congress has a longstanding practice of equating the term “felony” with offenses punishable by more than one year’s imprisonment. Id. (citations omitted). And it noted that federal offenses today are defined as felonies if they are punishable by more than one year’s imprisonment. Id. (citing 18 U.S.C. 3559(a)). Because the court saw no clear indication that Congress “intended to abandon its general approach of using uniform categorical definition to identify predicate offenses,” it" }, { "docid": "22418458", "title": "", "text": "on whether § 802(13) or § 802(44) is applicable. This court has noted the difference in these two definitions before, but concluded that it was not required to determine which definition was applicable since the defendant’s offense was both labeled a felony under state law and punishable by more than one year in prison under state law. United States v. Caicedo-Cuero, 312 F.3d 697, 702-03 (5th Cir.2002) (defendant’s prior Texas offense of simple possession of marijuana was an aggravated felony since Texas categorized the offense as a felony and provided for a maximum term of imprisonment of two years). We noted in Caice-do-Cuero, however, that since this court had relied on the First Circuit’s decision in United States v. Restrepo-Aguilar, 74 F.3d 361 (1st Cir.1996), for its holdings in Hinojosa-Lopez and Hemandez-Avalos, it “suggests that the proper definition of ‘felony’ to apply in this context is that in § 802(13), which asks only whether the state labeled the crime a felony.” 312 F.3d at 702 n. 32. In Restrepo-Aguilar the First Circuit only considered whether the term “aggravated felony,” as used in § 2L1.2(b)(2) of the Guidelines, includes as a “felony” a state drug possession offense that would only be a misdemeanor under federal law, but is a felony under the laws of the convicting state. 74 F.3d at 364-65. This is the same issue that this court decided in Hinojosa-Lopez, 130 F.3d 691. As was the case in Hinojosa-Lopez, the First Circuit never addressed the question of whether the “classification” of an offense as a felony is sufficient to qualify as an aggravated felony even if the maximum authorized punishment would not exceed one year. Although the court in Restrepo-Aguilar adopted the definition of § 802(13), it was unnecessary to determine which definition was applicable — § 802(13) or § 802(44) — since the defendant’s conviction, as in Caicedo-Cuero, met the requirements of both definitions. Restrepo-Aguilar, 74 F.3d at 365. The court relied heavily on the fact that the defendant’s drug possession offense was “fully consistent with the definition of that term that pervades the criminal history and prior" }, { "docid": "22138490", "title": "", "text": "In examining whether the defendant’s prior convictions were felonies for purposes of the aggravated felony enhancement, the Robles-Rodriguez court faced the rather confusing question of which definition of “felony” should apply to the aggravated felony enhancement. The commentary to § 2L1.2 provides its own definition of “felony offense,” which is “any federal, state, or local offense punishable by imprisonment for a term exceeding one year.” However, the commentary also provides that ‘“aggravated felony’ is defined at 8 U.S.C. § 1101(a)(43).” Because the commentary refers users to a special statutory definition of “aggravated felony,” the Robles-Rodriguez court looked to 8 U.S.C. § 1101(a)(43) for guidance as to which definition of “felony” should be used in deciding whether a prior crime is an aggravated felony. Section 1101(a)(43) contains a list of aggravated felonies, which includes “a drug trafficking crime (as defined in section 924(c) of Title 18).” Turning to 18 U.S.C. § 924(c), the court noted that this section defines a “drug trafficking crime” as “any felony punishable under the Controlled Substances Act [CSA] (21 U.S.C. 801 et seq.).” As Robles-Rodriguez’s prior conviction for simple possession qualified as a crime punishable under the Controlled Substances Act, the court looked to the CSA’s definition of “felony,” which is found in 21 U.S.C. § 802(13), to determine whether the crime was indeed a felony punishable under the CSA. That section defines a felony as “any Federal or State offense classified by applicable Federal or State law as a felony.” The government contended that, under the plain meaning of this definition, Robles-Rodriguez’s prior convictions qualified as felonies, because Arizona law labeled the crime a “felony.” However, the Ninth Circuit looked past the definition found in § 802(13), and discovered that § 802(44) defined a “felony drug offense” as “an offense that is punishable by imprisonment for more than one year under any law of the United States or of a State or foreign country that prohibits or restricts conduct relating to narcotic drugs, marihuana, or depressant or stimulant substances.” Contrary to the government’s argument that the court should apply the definition of felony found in" }, { "docid": "22418461", "title": "", "text": "a statute should not be interpreted in a manner that renders other sections of the same statute inconsistent, meaningless or superfluous.” Id. (internal quotation omitted). Therefore, reading the definitions in §§ 802(13) and (44) together, the court concluded that the term “felony” referred to offenses punishable by more than one year imprisonment under the applicable state or federal law. Id. In addition, the court noted that federal law traditionally equates the term felony with offenses punishable by more than one year imprisonment. Id. (citing United States v. Urias-Escobar, 281 F.3d 165,167-68 (5th Cir.2002)). The court also relied on “the Seventh Circuit’s observation that ‘the punishment chosen for a crime will more accurately and equitably reflect ... the seriousness of that crime than will the crime’s felony/misdemeanor classification.’ ” Id. at 905 (quoting United States v. Jones, 235 F.3d 342, 346 (7th Cir.2000)). The Sixth Circuit adopted the Ninth Circuit’s reasoning in Robles-Rodriguez. Liao, 398 F.3d at 394-95. We also find the Ninth Circuit’s reasoning persuasive. Accordingly, we conclude that Sanchez-Villalobos’s prior conviction satisfies the two elements for a “drug trafficking crime” under § 924(c)(2): (1) it is punishable under the CSA and (2) qualifies as a felony because of the punishment under state law. The district court, therefore, did not err in applying an eight level increase pursuant to U.S.S.G. § 2L1.2(b)(l)(C) because Sanchez-Villalo-bos had been previously deported subsequent to an “aggravated felony.” B Furthermore, we can affirm the district court’s judgment because Sanchez-Villalo-bos’s Colorado conviction is considered a felony under federal law. Specifically, possession of a controlled substance is an aggravated felony under § 2L1.2(b)(l)(C) because it can be punished as a felony under the CSA. An offense punishable by more than one year in prison is a felony under federal law, 18 U.S.C. § 3559(a). Under 21 U.S.C. § 844(a), a defendant who violates the subsection by possession of a controlled substance “may be sentenced to a term of imprisonment for not more than 1 year, and shall be fined a minimum of $1,000 or both except that if he commits such offense after a prior conviction for" }, { "docid": "22138491", "title": "", "text": "et seq.).” As Robles-Rodriguez’s prior conviction for simple possession qualified as a crime punishable under the Controlled Substances Act, the court looked to the CSA’s definition of “felony,” which is found in 21 U.S.C. § 802(13), to determine whether the crime was indeed a felony punishable under the CSA. That section defines a felony as “any Federal or State offense classified by applicable Federal or State law as a felony.” The government contended that, under the plain meaning of this definition, Robles-Rodriguez’s prior convictions qualified as felonies, because Arizona law labeled the crime a “felony.” However, the Ninth Circuit looked past the definition found in § 802(13), and discovered that § 802(44) defined a “felony drug offense” as “an offense that is punishable by imprisonment for more than one year under any law of the United States or of a State or foreign country that prohibits or restricts conduct relating to narcotic drugs, marihuana, or depressant or stimulant substances.” Contrary to the government’s argument that the court should apply the definition of felony found in § 802(13) and conclude “that an offense is a felony under the Controlled Substance Act as long as the convicting jurisdiction labels it as such, without regard to the punishment designated for the offense,” the court found that such a reading of § 803(13) violated basic principles of .statutory construction, as it would bring § 803(13)’s definition of “felony” into conflict with § 803(42)’s definition of “felony drug offense.” Instead, it determined that incorporation of § 803(42)’s “imprisonment for more than one year” requirement into § 803(13)’s felony definition corresponded to Congress’s “longstanding practice of equating the term ‘felony’ with offenses punishable by more than one year’s imprisonment,” and gave proper deference to a state’s decision to treat simple drag possession “as a medical prob lem best handled by treatment and education, not by incarceration.” It reasoned that to conclude otherwise would be to prioritize an “outdated and meaningless label” over the substance of the punishment itself. As recognized by Robles-Rodriguez, two definitions of felony inhere in 21 U.S.C. § 802: The definition of “felony”" }, { "docid": "22418457", "title": "", "text": "States v. Hernandez-Avalos, 251 F.3d 505, 508 (5th Cir.2001). However, the issue in this case has never before been brought squarely before this court. The probation department looked to the application notes of § 2L1.2 that defines “felony” as an offense punishable by imprisonment for more than one year. However, the Guidelines expressly adopt this definition only for § 2L1.2(b)(a)(l)(A), (B), and (D). Sanchez-Villalobos argues that § 802(13) of the CSA, which defines “felony” as “any Federal or State offense classified by applicable Federal or State law as a felony,” provides the proper definition. 21 U.S.C. § 802(13). The Government asserts, however, that the proper definition is found in § 802(44) of the CSA, which defines “felony drug offense” as “an offense that is punishable by imprisonment for more than one year under any law of the United States or of a State or foreign country that prohibits or restricts conduct relating to narcotic drugs, marihuana, anabolic steroids, or depressant or stimulant substances.” 21 U.S.C. § 802(44). Whether Sanchez-Villalobos’s offense is an aggravated felony depends on whether § 802(13) or § 802(44) is applicable. This court has noted the difference in these two definitions before, but concluded that it was not required to determine which definition was applicable since the defendant’s offense was both labeled a felony under state law and punishable by more than one year in prison under state law. United States v. Caicedo-Cuero, 312 F.3d 697, 702-03 (5th Cir.2002) (defendant’s prior Texas offense of simple possession of marijuana was an aggravated felony since Texas categorized the offense as a felony and provided for a maximum term of imprisonment of two years). We noted in Caice-do-Cuero, however, that since this court had relied on the First Circuit’s decision in United States v. Restrepo-Aguilar, 74 F.3d 361 (1st Cir.1996), for its holdings in Hinojosa-Lopez and Hemandez-Avalos, it “suggests that the proper definition of ‘felony’ to apply in this context is that in § 802(13), which asks only whether the state labeled the crime a felony.” 312 F.3d at 702 n. 32. In Restrepo-Aguilar the First Circuit only considered whether" }, { "docid": "7996982", "title": "", "text": "Cir.), cert. denied, 528 U.S. 880, 120 S.Ct. 191, 145 L.Ed.2d 161 (1999); United States v. Simon, 168 F.3d 1271, 1272 (11th Cir.), cert. denied, 528 U.S. 844, 120 S.Ct. 114, 145 L.Ed.2d 97 (1999); United States v. Hinojosa-Lopez, 130 F.3d 691, 694 (5th Cir.1997); United States v. Briones-Mata, 116 F.3d 308, 309 (8th Cir.1997); United States v. Cabrera-Sosa, 81 F.3d 998, 1000 (10th Cir.), cert. denied, 519 U.S. 885, 117 S.Ct. 218, 136 L.Ed.2d 151 (1996); United States v. Restrepo-Aguilar, 74 F.3d 361, 365 (1st Cir.1996). The Ninth Circuit has adopted a similar approach to interpreting the term “aggravated felony” within the context of U.S.S.G. § 2L1.2, but has added the further requirement that regardless of how the state classifies the conviction, the offense can be an “aggravated felony” for purposes of § 1101(a)(43)(B) only if it is “punishable by more than one year’s imprisonment under applicable state or federal law.” Robles-Rodriguez, 281 F.3d at 904. The court noted that within the CSA itself, the term “felony drug offense” is defined as “an offense that is punishable by imprisonment for more than one year under any law of the United States or of a State.” 21 U.S.C. § 802(44). Similarly, federal offenses in general under Title 18 are classified as felonies only if the maximum term of imprisonment is greater than one year. 18 U.S.C. § 3559(a)(5). Thus, the court explained that in light of Congress’s “long-established practice of using the term ‘felony’ to describe offenses punishable by more than one year’s imprisonment,” it refused to adopt an alternative approach “absent a clear indication to the contrary.” Robles-Rodriguez, 281 F.3d at 904. Accordingly, the Ninth Circuit held that an Arizona drug-possession conviction which is classified as a felony under Arizona law, but which does not result in incarceration, did not qualify as a “drug trafficking crime” and therefore an “aggravated felony” under the INA. Id. at 905-06. We expressly adopted this formulation without reaching the underlying issue of whether the guideline approach was the proper interpretation of § 924(c)(2). See Liao, 398 F.3d at 395 (assuming the guideline approach" }, { "docid": "23526296", "title": "", "text": "which Arellano was convicted, meets this two-pronged federal definition of “aggravated felony.” To resolve the first prong — whether the offense is punishable under the Controlled Substances Act — our en banc opinion in United States v. Rivera-Sanchez, 247 F.3d 905 (9th Cir.2001), instructs us to determine whether the “full range of conduct encompassed by” the statute of conviction — NRS 453.336 — is punishable by the Controlled Substances Act. Id. at 907-09 (citing Taylor v. United States, 495 U.S. 575, 110 S.Ct. 2143, 109 L.Ed.2d 607 (1990)). If NRS 453.336 “reaches both conduct that would [be punishable under the Controlled Substances Act] and conduct that would not,” we may examine “documentation or judicially noticeable facts that clearly establish that the conviction is a predicate conviction for enhancement purposes.” Id. at 908. Arellano does not argue that NRS 453.336 is broader than the Controlled Substances Act, so for the purposes of this appeal we assume that the first prong of the aggravated felony definition is satisfied. Cf. 21 U.S.C. § 844(a) (punishing possession of a controlled substance). The more difficult question is “whether the conviction[ ] [is a] ‘felonfy]’ as that term is used in the federal statutes at issue here.” Robles-Rodriguez, 281 F.3d at 903. We held in Robles-Rodriguez that “Congress intended the word ‘felony’ to describe offenses punishable by more than one year’s imprisonment under applicable state or federal law.” 281 F.3d at 904 (relying in part on the definition of “felony drug offense” in 21 U.S.C. § 802(44) as “an offense that is punishable by imprisonment for more than one year under any law of the United States or of a State or foreign country”); see also 18 U.S.C. § 3559(a) (classifying offenses carrying more than one year of imprisonment as felonies and one year or less of imprisonment as misdemeanors); 18 U.S.C. § 924(e)(2)(B) (defining a “violent felony” as “any crimefsatisfying other conditions] punishable by imprisonment for a term exceeding one year”). Under federal law, possession of an unspecified type and quantity of a controlled substance is punishable by up to one year in prison. 21" }, { "docid": "22176627", "title": "", "text": "trafficking crime” as a “felony punishable under the Controlled Substances Act.” 18 U.S.C. 924(c)(2). “Felony” and “felony drug offense” are two different terms with different definitions under the CSA. Compare 21 U.S.C. 802(13) with 21 U.S.C. 802(44). Had Congress intended to define a “drug trafficking crime” as a drug offense punishable by imprisonment for more than one year, it easily could have done so. Although this interpretation does create an odd result, where Amaya-Portillo’s drug possession offense is a “felony drug offense,” but not a “felony,” under the CSA, we refuse to misread the statute to create a more consistent result. Moreover, the fact that Section 924(c)(2) is so written provides evidence that Congress “intended to abandon its general approach of using uniform categorical definition to identify predicate offenses.” Robles-Rodriguez, 281 F.3d at 904. Finally, our interpretation gives deference to a state’s judgment, not as to the appropriate punishment, but as to whether the offense is a felony. We see no reason to conclude that Congress intended the question of whether simple drug possession is an aggravated felony to hinge on the amount of imprisonment possible. Accordingly, we conclude that a “felony” under the CSA means “any Federal or State offense classified by applicable Federal or State law as a felony.” Since the offense in the instant case is neither classified as a felony by Federal or Maryland law, the offense is not a “felony” under 21 U.S.C. 802(13), nor an “aggravated felony” under section 2L1.2 of the Sentencing Guidelines. The district court erred in so finding. We reverse the application of Section 2L1.2(b)(l)(C) of the Sentencing Guidelines and remand for further proceedings consistent with this opinion. rv. For the reasons stated above, the Court will deny the motion for remand and reverse the ruling of the district court applying the 8 level increase pursuant to section 2L1.2(b)(l)(C) of the Sentencing Guidelines. REVERSED AND REMANDED. . Consolidated with United States v. Fanfan, — U.S. —, 125 S.Ct. 738, 160 L.Ed.2d 621 (2005). . Since Defendant was sentenced before the Court decided United States v. Hammoud, 381 F.3d 316 (4th Cir.2004)," }, { "docid": "23526297", "title": "", "text": "controlled substance). The more difficult question is “whether the conviction[ ] [is a] ‘felonfy]’ as that term is used in the federal statutes at issue here.” Robles-Rodriguez, 281 F.3d at 903. We held in Robles-Rodriguez that “Congress intended the word ‘felony’ to describe offenses punishable by more than one year’s imprisonment under applicable state or federal law.” 281 F.3d at 904 (relying in part on the definition of “felony drug offense” in 21 U.S.C. § 802(44) as “an offense that is punishable by imprisonment for more than one year under any law of the United States or of a State or foreign country”); see also 18 U.S.C. § 3559(a) (classifying offenses carrying more than one year of imprisonment as felonies and one year or less of imprisonment as misdemeanors); 18 U.S.C. § 924(e)(2)(B) (defining a “violent felony” as “any crimefsatisfying other conditions] punishable by imprisonment for a term exceeding one year”). Under federal law, possession of an unspecified type and quantity of a controlled substance is punishable by up to one year in prison. 21 U.S.C. § 844(a) (emphasis added). If the defendant is a second- or third-offender, the maximum penalty is increased to two and three years, respectively. Id. Our recent en banc decision in United States v. Corona-Sanchez, 291 F.3d 1201 (9th Cir.2002), however, establishes that “we must consider the sentence available for the crime itself, without considering separate recidivist sentencing enhancements.” Id. at 1209. Accordingly, we disregard § 844’s penalties for repeat offenders. Because one year is the maximum term of imprisonment authorized for a first-time offender of § 844 (unless the violation involves more than three grams of cocaine base or any amount of flunitraze-pam), simple possession is not “punishable by more than one year’s imprisonment under applicable ... federal law.” Robles-Rodriguez, 281 F.3d at 904. Possession of a controlled substance, however, may satisfy the second prong of the aggravated felony definition if it is “punishable by more than one year’s imprisonment under applicable state ... law.” Id. (emphasis added); see also United States v. Ibarra-Galindo, 206 F.3d 1337, 1339-40 (9th Cir.2000) (holding that crime that" }, { "docid": "22176625", "title": "", "text": "by a state court as a felony that determined whether the offense was an aggravated felony for purposes of the Sentencing Guidelines. See Ibarra-Galindo, 206 F.3d at 1339-40. The court did discuss giving deference to the state, stating “we may infer that the Sentencing Commission intended with U.S.S.G. § 2L1.2 to affix greater weight to the fact that a defendant has violated what the relevant jurisdiction declares to be a ‘felony’ than to the fact that the federal government demarcates felonies and misdemeanors on a different basis than the state does.” Id. at 1340 (emphasis in original). The Sixth Circuit recently adopted the rule announced in Robles-Rodriguez and held that “a state drug conviction is not a felony under state law, even if it is labeled as such, if it is not punishable under state law by a term of imprisonment of more than one year.” Liao v. Rabbett, 398 F.3d 389, 395 (6th Cir.2005). However, we refuse to adopt the same rule. As a threshold matter, it is not clear that the Ninth and Sixth Circuits would rule that Amaya-Portillo’s drug possession offense is an aggravated felony because neither court has considered whether a state crime labeled a misdemeanor, but also punishable by more than one year’s imprisonment, is an aggravated felony. In fact, their analysis concluding that the length of possible imprisonment is the deciding factor is not particularly instructive because they have not confronted the issue before us now. In addition, we do not find the Ninth Circuit’s analysis persuasive. In Wilson, the Court stated that the definition of “felony” as “any Federal or State offense classified by applicable Federal or State law as a felony” is “clear and unambiguous.” Wilson, 316 F.3d at 512. We see no reason to look to the definition of a “felony drug offense” to determine whether Amaya-Portillo’s drug crime is a “felony punishable under the Controlled Substances Act.” See 18 U.S.C. 924(c)(2). Section 924(c)(2) could easily have defined a “drug trafficking crime” as a “felony drug offense” punishable under the Controlled Substances Act. Yet it does not; it defines a “drug" }, { "docid": "22418459", "title": "", "text": "the term “aggravated felony,” as used in § 2L1.2(b)(2) of the Guidelines, includes as a “felony” a state drug possession offense that would only be a misdemeanor under federal law, but is a felony under the laws of the convicting state. 74 F.3d at 364-65. This is the same issue that this court decided in Hinojosa-Lopez, 130 F.3d 691. As was the case in Hinojosa-Lopez, the First Circuit never addressed the question of whether the “classification” of an offense as a felony is sufficient to qualify as an aggravated felony even if the maximum authorized punishment would not exceed one year. Although the court in Restrepo-Aguilar adopted the definition of § 802(13), it was unnecessary to determine which definition was applicable — § 802(13) or § 802(44) — since the defendant’s conviction, as in Caicedo-Cuero, met the requirements of both definitions. Restrepo-Aguilar, 74 F.3d at 365. The court relied heavily on the fact that the defendant’s drug possession offense was “fully consistent with the definition of that term that pervades the criminal history and prior offense enhancement provisions scattered throughout the Guidelines: any federal or state offense punishable under applicable law by a term of imprisonment of more than one year.” Id. at 366. Only the Ninth and Sixth Circuits have answered this question, holding that a state conviction is a felony for this purpose only if it is punishable by imprisonment for more than one year. United States v. Robles-Rodriguez, 281 F.3d 900, 903-05 (9th Cir.2002); Liao v. Rabbett, 398 F.3d 389, 394-95 (6th Cir.2005). In Robles-Rodriguez, the Ninth Circuit considered whether an Arizona statute that described offenses as “felonies” but for which the maximum penalty authorized by law was probation can be an “aggravated felony.” 281 F.3d at 903. The court reasoned that Congress could not have meant to rely on the CSA’s definition of “felony” to determine what constitutes a “drug trafficking offense” because to do so would strip any real meaning from the term “felony drug offense.” Id. at 904. The court explained that “[i]t is a basic rule of statutory construction that one provision of" }, { "docid": "22176624", "title": "", "text": "was “reluctant to infer ... that Congress intended to abandon its long-established practice of using the term ‘felony’ to describe offenses punishable by more than one year’s imprisonment.” Id. at 904-5. Third, the court presumed that by defining aggravated felonies with reference to state law, Congress “intended to accord respect in the federal sentencing scheme to each state’s judgment regarding the appropriate punishment of criminal offenses.” Id. at 905. In United States v. Ibarra-Galindo, 206 F.3d 1337, 1339—40 (9th Cir.2000), the court had held that a state drug possession offense that was punishable as a felony under state law, but would have been only a misdemeanor if charged under federal law, was still an “aggravated felony” for purposes of the Sentencing Guidelines. From Ibarra-Gal-indo, the court extracted “the sound principle that a state’s judgment about the appropriate punishment for an offense is entitled to deference in the federal sentencing scheme.” 281 F.3d at 905. It should be noted that in Ibarra-Galindo, the court had held that it was the “denomination” or “classification” of an offense by a state court as a felony that determined whether the offense was an aggravated felony for purposes of the Sentencing Guidelines. See Ibarra-Galindo, 206 F.3d at 1339-40. The court did discuss giving deference to the state, stating “we may infer that the Sentencing Commission intended with U.S.S.G. § 2L1.2 to affix greater weight to the fact that a defendant has violated what the relevant jurisdiction declares to be a ‘felony’ than to the fact that the federal government demarcates felonies and misdemeanors on a different basis than the state does.” Id. at 1340 (emphasis in original). The Sixth Circuit recently adopted the rule announced in Robles-Rodriguez and held that “a state drug conviction is not a felony under state law, even if it is labeled as such, if it is not punishable under state law by a term of imprisonment of more than one year.” Liao v. Rabbett, 398 F.3d 389, 395 (6th Cir.2005). However, we refuse to adopt the same rule. As a threshold matter, it is not clear that the Ninth and" }, { "docid": "22176630", "title": "", "text": "States v. West, 393 F.3d 1302 (D.C.Cir.2005). In West, the court considered whether an underlying Maryland conviction for misdemeanor possession of a narcotic drug was a “felony drug offense” meriting a sentencing enhancement under 21 U.S.C. 841(b)(1)(A). The court concluded that in order to determine whether the first conviction was a \"prior conviction for a felony drug offense” meriting the sentencing enhancement, Section 841(b)(1)(A) must be read in pari materia with Sections 802(13) and 802(44). Id. at 1305 (emphasis in original). Thus, the court held that a prior drug conviction only provides the predicate for the enhancement if it is both punishable by more than one year of imprisonment and characterized as a felony by the controlling law, either state or federal. Id. (emphasis in original). Since the offense was not a felony under Maryland law or the CSA, the enhancement could not be applied. However, because the sentencing enhancement in section 841(b)(1)(A) specifically applies to a \"felony drug offense,’’ the court’s analysis is not instructive on the issue now before this Court. . The Ninth Circuit now focuses on potential punishment rather than the classification of the offense under state law. See United States v. Robles-Rodriguez, 281 F.3d 900, 904-05 (9th Cir.2002). SHEDD, Circuit Judge, concurring in part and dissenting in part. I fully agree that Amaya-Portillo waived any right to appeal his sentence on Sixth Amendment grounds. See United States v. Blick, 408 F.3d 162, 170 (4th Cir.2005). I do not agree, however, with the majority’s conclusion that a “felony drug offense” is not an “aggravated felony” under U.S.S.G. § 2L1.2. The majority admits that its interpretation creates an “odd result” in that an offense that qualifies as a “felony drug offense” is nevertheless not a felony. Ante at 435. In my view, neither the relevant statutes nor our case law requires such a result. The Sentencing Guidelines provide for an eight-level enhancement for unlawful reentry into the United States when the defendant was previously deported after “a conviction for an aggravated felony.” U.S.S.G. § 2L1.2(b)(l)(C). Although the term “aggravated felony” is not defined in § 2L1.2, the" }, { "docid": "7996983", "title": "", "text": "that is punishable by imprisonment for more than one year under any law of the United States or of a State.” 21 U.S.C. § 802(44). Similarly, federal offenses in general under Title 18 are classified as felonies only if the maximum term of imprisonment is greater than one year. 18 U.S.C. § 3559(a)(5). Thus, the court explained that in light of Congress’s “long-established practice of using the term ‘felony’ to describe offenses punishable by more than one year’s imprisonment,” it refused to adopt an alternative approach “absent a clear indication to the contrary.” Robles-Rodriguez, 281 F.3d at 904. Accordingly, the Ninth Circuit held that an Arizona drug-possession conviction which is classified as a felony under Arizona law, but which does not result in incarceration, did not qualify as a “drug trafficking crime” and therefore an “aggravated felony” under the INA. Id. at 905-06. We expressly adopted this formulation without reaching the underlying issue of whether the guideline approach was the proper interpretation of § 924(c)(2). See Liao, 398 F.3d at 395 (assuming the guideline approach is appropriate, holding that “a state drug conviction is not a felony under state law, even if it is labeled as such, if it is not punishable under state law by a term of imprisonment of more than one year”). Thus, in this case, we face the unresolved question of determining which interpretation of an “aggravated felony” should be used in our circuit. We begin our analysis by declining to follow the approach outlined by the Second and Ninth Circuits, which treats the statutory language in § 1101(a)(43)(B) differently for immigration purposes than for sentencing enhancement under the Guidelines. See Ferreira v. Ashcroft, 382 F.3d 1045, 1050 (9th Cir.2004); Pornes-Garcia, 171 F.3d at 147. As the Fifth Circuit stated, “[w]e fail to see the validity of interpreting this statute differently based on this distinction between sentencing and immigration cases; it is, after all, the same words of the same phrase from the same statute that is being interpreted in each instance.” United States v. Hernandez-Avalos, 251 F.3d 505, 509 (5th Cir.), cert. denied, 534 U.S." } ]

[ { "docid": "22538440", "title": "", "text": "a questionable basis for testing the validity of his j udgment. The record made when Judge Barlow pronounced sentence against Addonizio, for example, is en tirely consistent with the view that the judge then thought that this was an exceptional case in which the severity of Addonizio’s offense should and would be considered carefully by the Parole Commission when Addonizio became eligible for parole. If the record is ambiguous, and if a § 2255 motion is not filed until years later, it will often be difficult to reconstruct with any certainty the subjective intent of the judge at the time of sentencing. Regular attempts to do so may well increase the risk of inconsistent treatment of defendants; on the other hand, the implementation of the Parole Commission’s policies may reduce that risk. Nothing in the statutory scheme directs sentencing courts to engage in this task on collateral attack; quite to the contrary, the proposed system of sentencing review would be inconsistent with that established by Congress. The decision as to when a lawfully sentenced defendant shall actually be released has been committed by Congress, with certain limitations, to the discretion of the Parole Commission. Whether wisely or not, Congress has decided that the Commission is in the best position to determine when release is appropriate, and in doing so, to moderate the disparities in the sentencing practices of individual judges. The authority of sentencing judges to select precise release dates is, by contrast, narrowly limited: the judge may select an early parole eligibility date, but that guarantees only that the defendant will be considered at that time by the Parole Commission. And once a sentence has been imposed, the trial judge’s authority to modify it is also circumscribed. Federal Rule Crim. Proc. 35 now authorizes district courts to reduce a sentence within 120 days after it is imposed or after it has been affirmed on appeal. The time period, however, is jurisdictional and may not be extended. The import of this statutory scheme is clear: the judge has no enforceable expectations with respect to the actual release of a sentenced" } ]

[ { "docid": "347722", "title": "", "text": "35(b) motion filed within the 120-day period because the court had not ruled on the motion when the clock ran out. . The Eighth Circuit has reached the same result in United States v. DeMier, 671 F.2d 1200, 1205-06 (8th Cir.1982). The Ninth Circuit, in United States v. Smith, 650 F.2d 206, 209 (9th Cir.1981) has declined — albeit without discussing the Addonizio dictum — to retreat from its holding that the district court may retain jurisdiction beyond the rule 35(b) period. A contrary viewpoint, however, has been expressed by the Seventh Circuit in United States v. Kajevic, 711 F.2d 767 (7th Cir.1983), cert. denied, — U.S.-, 104 S.Ct. 721, 79 L.Ed.2d 182 (1984), which concluded that the passage from Addonizio is an integral part of the approach in that case. Ultimately, however, the Kajevic court decided its case on the basis that, under the circumstances, the district court's delay was unreasonable. Technically, therefore, there is not yet a circuit split on the issue presented here. . Rule 35(b), it may be observed, is a flawed vehicle for assuring this separation between the spheres of the courts and the Parole Commission. The Parole Commission generally issues its presumptive parole date within several months of the time that the prisoner is incarcerated, yet the 120-day limit of Rule 35(b) also may start to run after the court of appeals and/or the Supreme Court dispose of any appeals or certiorari petitions concerning the underlying conviction — a process that can take more than a year. A district judge is thus put by the Rule itself in position to second-guess Parole Commission harshness by reducing sentence below the presumptive parole date. Perhaps the Advisory Committee on Criminal Rules may wish to consider this problem. . The dissenting opinion of Judge Gibbons suggests that we should remand to determine whether the district court really did second-guess the Parole Commission or whether it predicated its initial grant of Diggs’ Rule 35(b) motion on events taking place before the 120-day limit expired. The suggestion is not without force. If, taking all circumstances into account, we found" }, { "docid": "6215123", "title": "", "text": "a Rule 35 motion more than 120 days after imposition of sentence, although the 120-day period of Rule 35 imposes a rigid jurisdictional limit for filing the motion. United States v. Smith, 650 F.2d 206, 209 & n.2 (9th Cir. 1981). Rule 45(b) provides that the 120-day time limit may not be extended by the court. Expiration of the allotted time therefore serves to divest the district court of jurisdiction over the motion for reduction of sentence. United States v. United States District Court, 509 F.2d at 1354; United States v. Addonizio, 442 U.S. 178, 189, 99 S.Ct. 2235, 2242, 60 L.Ed.2d 805 (1979) (dictum). The Rule’s language, read literally, provides that the district court loses jurisdiction at the end of the 120-day period, regardless of when the motion was filed or of extenuating circumstances. See United States v. United States District Court, 509 F.2d at 1356; United States v. Mendoza, 565 F.2d 1285, 1287-88 (5th Cir. 1978), modified 581 F.2d 89 (5th Cir. 1978). Thus the plain meaning of the Rule forecloses consideration of a motion after expiration of the time limit, regardless of the movant’s lack of control over the delay. Id. This court and other appellate courts have mitigated the arbitrary operation of the Rule by treating the time limit with some flexibility, allowing district courts to retain jurisdiction over timely-filed motions for a “reasonable time” beyond the deadline. See, e.g., United States v. United States District Court, 509 F.2d at 1356; United States v. Mendoza, 565 F.2d at 1291; United States v. Stollings, 516 F.2d 1287, 1289 (4th Cir. 1975). Such flexibility is bounded by the language and purposes of Rule 35(b). United States v. United States District Court, 509 F.2d at 1356. [Id. at 208-09 (footnotes omitted); accord, United States v. Inendino, 655 F.2d 108, 109-110 (7th Cir. 1981).] We have rejected any narrow construction of the district court’s prerogatives un der Rule 35 so long as a timely motion has been made. United States v. Colvin, 644 F.2d 703 (8th Cir. 1981). In Colvin, the district court had initially imposed sentence, but suspended execution" }, { "docid": "347721", "title": "", "text": "liberty. . We may have already so declared in Virgin Islands v. Gereau, 603 F.2d 438, 442 n. 2 (3d Cir.1979). We said: \"Rule 35 speaks in terms of the court’s action being taken within 120 days, but it is well established that, once a timely motion is filed, the district court may retain jurisdiction for a reasonable amount of time to decide the motion. See United States v. Mendoza, 581 F.2d 89 (5th Cir.1978) (per curiam; in banc); United States v. Stollings, 516 F.2d 1287 (4th Cir.1975).” If we view the statements in Gereau as a square holding, we are of course bound to adhere to it by virtue of our Internal Operating Procedure, Chapter VIIC. Fortunately, however, we need not decide the precedential authority of the assertion in Gereau, which, though issued after Addonizio, did not mention the case, for we believe that the result reached by Gereau is correct. . It is clear that the Court in Addonizio was not addressing the question whether a district court lost jurisdiction over a rule 35(b) motion filed within the 120-day period because the court had not ruled on the motion when the clock ran out. . The Eighth Circuit has reached the same result in United States v. DeMier, 671 F.2d 1200, 1205-06 (8th Cir.1982). The Ninth Circuit, in United States v. Smith, 650 F.2d 206, 209 (9th Cir.1981) has declined — albeit without discussing the Addonizio dictum — to retreat from its holding that the district court may retain jurisdiction beyond the rule 35(b) period. A contrary viewpoint, however, has been expressed by the Seventh Circuit in United States v. Kajevic, 711 F.2d 767 (7th Cir.1983), cert. denied, — U.S.-, 104 S.Ct. 721, 79 L.Ed.2d 182 (1984), which concluded that the passage from Addonizio is an integral part of the approach in that case. Ultimately, however, the Kajevic court decided its case on the basis that, under the circumstances, the district court's delay was unreasonable. Technically, therefore, there is not yet a circuit split on the issue presented here. . Rule 35(b), it may be observed, is a" }, { "docid": "20340771", "title": "", "text": "create a conflict with other circuits and disrupt what has become common practice among the district judges of this circuit.” 711 F.2d at 771. One circuit which has determined that the jurisdiction of the sentencing judge does extend beyond the 120-day limit is the Fourth. In United States v. Stollings, 516 F.2d 1287, 1289 (4th Cir.1975), the court decided that the sentencing judge maintains jurisdiction beyond the 120-day limit as long as the defendant’s motion is filed before the deadline. Other circuits have interpreted Rule 35(b) similarly, as imposing a limitation on the period for filing a motion but not as a limitation on the court’s jurisdictional authority to decide it. See United States v. DeMier, 671 F.2d 1200, 1205-1206 (8th Cir.1982); United States v. Smith, 650 F.2d 206, 209 (9th Cir.1981); Government of Virgin Islands v. Gereau, 603 F.2d 438, 442 (3d Cir.1979). However, the courts which have recognized the jurisdictional authority of the sentencing judge beyond the 120-day period specified in Rule 35(b) have ruled contrary to the dictum in United States v. Addonizio, 442 U.S. 178, 99 S.Ct. 2235, 60 L.Ed.2d 805 (1979). In Addonizio, the Supreme Court stated that the 120-day time period in Rule 35(b) “is jurisdictional and may not be extended.” Id. at 189, 99 S.Ct. at 2243. Clearly, the Court interpreted Rule 35(b) as imposing a limitation on the authority of judges to act, not as a deadline by which petitioners must file their motions. Relying on the Court’s reading of Rule 35(b), the Seventh Circuit in Inendino and Kajevic reached the same conclusion. See Inen dino, supra, at 109 and Kajevic, supra, at 770. Such clear indications by the Supreme Court and Seventh Circuit of the limitations imposed on the sentencing judge by Rule 35(b) will not be ignored by this Court. In Cotton, this Court stated that the dictum in Kajevic would be applied “where motions for reduction of sentence are filed so near the deadline as to preclude both a reasonable opportunity for the Government to respond and meaningful consideration by the Court itself.” United States v. Cotton, supra, at" }, { "docid": "6215119", "title": "", "text": "the 120-day time period of Rule 35. United States v. Williams, 573 F.2d 527, 529 (8th Cir. 1978). In Williams, the defendant had moved for reduction of sentence eighty-seven days after sentencing. The judge did not grant the motion until 167 days after the imposition of the sentence. The Government petitioned for a writ of mandamus. In denying the petition, this court said: Here Lambert [defendant] made a good faith attempt to comply with the prescribed time limit and, in fact, his motion was timely filed. The circumstances which allegedly deprived the district court of jurisdiction to reduce his sentence were beyond Lambert’s control. For these reasons, we do not believe the government may properly rely on [United States v.] Regan [503 F.2d 234 (8th Cir. 1974), cert. denied, 420 U.S. 1006, 95 S.Ct. 1449, 43 L.Ed.2d 764 (1975) ]. We hold that in this case the district court had the power to reduce Lambert’s sentence, even after the 120-day period had passed, since the Rule 35 motion was filed within the 120-day period. This rule is recognized by both the Third and Ninth Circuits. See United States v. Janiec, 505 F.2d 983 (3d Cir. 1974), cert. denied, 420 U.S. 948, 95 S.Ct. 1331, 43 L.Ed.2d 427 (1975); Leyvas v. United States, 371 F.2d 714 (9th Cir. 1967). [Id. at 529.] Accord, United States v. Smith, 650 F.2d 206, 209 (9th Cir. 1981); Government of Virgin Islands v. Gereau, 603 F.2d 438, 442 n.2 (3d Cir. 1979); United States v. Mendoza, 581 F.2d 89, 90 (5th Cir. 1978) (en banc)-, United States v. Stollings, 516 F.2d 1287, 1289-90 (4th Cir. 1975). In this case, the Government cites the following passage from United States v. Addonizio, 442 U.S. 178, 99 S.Ct. 2235, 60 L.Ed.2d 805 (1979), to support its contention that the district court had lost jurisdiction to rule on the DeMiers’ motion: [0]nce a sentence has been imposed, the trial judge’s authority to modify it is also circumscribed. Federal Rule Crim.Proc. 35 now authorizes district courts to reduce a sentence within 120 days after it is imposed or after it" }, { "docid": "20340770", "title": "", "text": "109-110 (7th Cir.1981). The Seventh Circuit reiterated its strict interpretation of Rule 35(b) and the time limit thereby imposed upon the sentencing court in United States v. Kajevic, 711 F.2d 767, 770-771 (7th Cir.1983): ... [T]he background and language of Rule 35(b), the Notes of the Advisory Committee, Addonizio, and the importance of having clear jurisdictional criteria point to the same conclusion: the district judge loses jurisdiction after 120 days. ... [I]f 120 days is not enough (time in which to hold a hearing, if necessary, and to act on the motion), or if there should be no limit on the time within which the judge can act, as there is none under Rule 35(a), the rule ought to be rewritten by those who have authority to do so; the courts of appeals do not. The Court in Kajevic declined to establish its strict interpretation of Rule 35(b) as the law of the circuit, however, and instead decided that case upon a narrower ground. In so doing, the court avoided a holding which “would both create a conflict with other circuits and disrupt what has become common practice among the district judges of this circuit.” 711 F.2d at 771. One circuit which has determined that the jurisdiction of the sentencing judge does extend beyond the 120-day limit is the Fourth. In United States v. Stollings, 516 F.2d 1287, 1289 (4th Cir.1975), the court decided that the sentencing judge maintains jurisdiction beyond the 120-day limit as long as the defendant’s motion is filed before the deadline. Other circuits have interpreted Rule 35(b) similarly, as imposing a limitation on the period for filing a motion but not as a limitation on the court’s jurisdictional authority to decide it. See United States v. DeMier, 671 F.2d 1200, 1205-1206 (8th Cir.1982); United States v. Smith, 650 F.2d 206, 209 (9th Cir.1981); Government of Virgin Islands v. Gereau, 603 F.2d 438, 442 (3d Cir.1979). However, the courts which have recognized the jurisdictional authority of the sentencing judge beyond the 120-day period specified in Rule 35(b) have ruled contrary to the dictum in United States v." }, { "docid": "18321858", "title": "", "text": "did, the 120-day limitation would have summarily stripped this Court of jurisdiction to consider the modification defendant now seeks. That is not to say, however, that having met the statutorily-prescribed deadline, defendant has an indisputable claim to the Court’s jurisdiction: Filing as he did on the eve of the expiration of the 120-day period, defendant afforded the Court little time in which to secure a response from the Government and to consider the merits of the motion. As a result, today’s order, issued 139 days after sentencing, comes 19 days after the statutorily-prescribed time period during which the Court has jurisdiction to reduce a sentence pursuant to rule 35(b). See United States v. Addonizio, 442 U.S. 178, 189, 99 S.Ct. 2235, 2242, 60 L.Ed.2d 805 (1979) (“Federal Rule Crim. Proc. 35 now authorizes District Courts to reduce a sentence within 120 days after it is imposed or after it has been affirmed on appeal. The time period, however, is jurisdictional and may not be extended” (dictum)). Despite the clear language of rule 35, some courts have recognized extensions of jurisdiction for reasonable periods of time beyond 120 days in order to consider motions filed within the designated period. In United States v. Stollings, 516 F.2d 1287, 1289 (4th Cir.1975), for example, the Court of Appeals for the Fourth Circuit ruled that the district court does not lose jurisdiction to act upon a rule 35 motion at the expiration of the 120-day period when the motion has been filed before the deadline— at least for so long as the sentencing judge reasonably needs time to consider and act upon the motion. Other circuits have followed suit, characterizing the language in rule 35(b) as a limitation on the period for filing a motion but not as a limitation on the Court’s jurisdictional authority to decide it. See United States v. DeMier, 671 F.2d 1200, 1205-1206 (8th Cir.1982); United States v. Smith, 650 F.2d 206, 209 (9th Cir.1981); Government of Virgin Islands v. Gereau, 603 F.2d 438, 442 (3d Cir.1979). However, the Court of Appeals for the Seventh Circuit, following the dictum in" }, { "docid": "773710", "title": "", "text": "MEMORANDUM OPINION AND ORDER SHADUR, District Judge. On Friday May 25, 1984 counsel for James Dunn (“Dunn”) filed with the Clerk of this Court a motion under Fed.R.Crim.P. (“Rule”) 35 for reduction of the sentence imposed on Dunn by this Court January 30, 1984. In the regular course that motion found its way to this Court’s chambers at the close of the next working day, May 29 (on May '28 the entire District Court had been closed because of the official Memorial Day holiday). That was literally the end of the 120th day after the sentencing date. At the outset this Court must decry the timing of the motion. Rule 35 literally allows reduction of a sentence only “within 120 days after the sentence is im-posed_” Though there has been a fairly widespread judicial tendency to bend that literal language where a Rule 35 motion has been filed within 120 days and the District Court acts promptly thereafter (see, e.g., what our Court of Appeals has described as “the leading case” for that viewpoint, United States v. Stollings, 516 F.2d 1287, 1289-90 (4th Cir.1975)), in all candor that is not how the Rule reads—and the cases that speak that way have really engaged in judicial legislation. Last year our own Court of Appeals issued the strongest kind of suggestion that the 120-day limit was jurisdictional (though it did not have to decide the issue definitively under the facts presented). United States v. Kajevic, 711 F.2d 767 (7th Cir.1983); and see the unanimous expression of the Supreme Court, albeit in dictum, in United States v. Addonizio, 442 U.S. 178, 189, 99 S.Ct. 2235, 2242, 60 L.Ed.2d 805 (1979): The [120-day] time period, however, is jurisdictional and may not be extended. In the face of Kajevic (and the Addonizio dictum) there is simply no excuse for counsel’s failure to file a motion early enough to permit the District Court’s reasoned consideration and action before the 120-day period runs out. That was not done here, and there is thus a serious question whether this Court has jurisdiction to act at all. But this" }, { "docid": "6215122", "title": "", "text": "extended[,]” the Court in Addonizio stated no new legal proposition, but merely referred to the liter al language of the Federal Rules of Criminal Procedure. 442 U.S. at 189, 99 S.Ct. at 2242 (citing Fed.R.Crim.P. 45(b)). Addonizio in no way undermines the vitality of cases from this and other circuits which view the defendant’s filing of a Rule 35 motion within 120 days as the critical act entitling the trial courts to rule on the motion and exercise appropriate discretion to reduce the sentence. See United States v. Williams, supra, 573 F.2d at 529; United States v. Stollings, supra, 516 F.2d at 1289-90; United States v. United States District Court, Central District of California, 509 F.2d 1352, 1356 (9th Cir.), cert. denied, 421 U.S. 962, 95 SUL 1949, 44 L.Ed.2d 448 (1975); United States v. Janiec, 505 F.2d 983, 985 n.3 (3d Cir. 1974), cert. denied, 420 U.S. 948, 95 S.Ct. 1331, 43 L.Ed.2d 427 (1975). Since Addonizio, the Ninth Circuit has reiterated the rule that the sentencing court retains some flexibility to act on a Rule 35 motion more than 120 days after imposition of sentence, although the 120-day period of Rule 35 imposes a rigid jurisdictional limit for filing the motion. United States v. Smith, 650 F.2d 206, 209 & n.2 (9th Cir. 1981). Rule 45(b) provides that the 120-day time limit may not be extended by the court. Expiration of the allotted time therefore serves to divest the district court of jurisdiction over the motion for reduction of sentence. United States v. United States District Court, 509 F.2d at 1354; United States v. Addonizio, 442 U.S. 178, 189, 99 S.Ct. 2235, 2242, 60 L.Ed.2d 805 (1979) (dictum). The Rule’s language, read literally, provides that the district court loses jurisdiction at the end of the 120-day period, regardless of when the motion was filed or of extenuating circumstances. See United States v. United States District Court, 509 F.2d at 1356; United States v. Mendoza, 565 F.2d 1285, 1287-88 (5th Cir. 1978), modified 581 F.2d 89 (5th Cir. 1978). Thus the plain meaning of the Rule forecloses consideration of" }, { "docid": "22113876", "title": "", "text": "States v. Stollings, 516 F.2d 1287 (4th Cir.1975), provides that a court may have a reasonable time after the expiration of the 120-day period to consider a motion which has been timely filed within that period, a dictum in Addonizio states that the 120-day period of Rule 35(b) is jurisdictional and may not be extended. 442 U.S. at 189. Relying on this dictum as well as the language of Rule 35(b), Rule 45(b), and the Advisory Committee notes thereto, the court dismissed the motion for want of jurisdiction by reasoning that this court would decide a Stollings issue similarly after Addonizio. Contrary to that court’s expectation, however, this court thereafter decided United States v. Schafer, 726 F.2d 155 (4th Cir.1984), in which we reaffirmed Stollings. Id. at 157-58. Breit moved to vacate the court’s dismissal order on the ground that Schafer, reaffirming Stollings, establishes that a court has a reasonable time beyond the 120-day period to consider a timely-filed Rule 35(b) motion. The district court denied the motion to vacate by reasoning that notwithstanding its mistaken expectation with respect to a future Fourth Circuit decision on a Stollings issue, application of Stollings at the time of consideration nevertheless would have required the court to dismiss for lack of jurisdiction because Breit’s second Rule 35(b) motion did not present legal or factual issues to be decided within Stollings’ reasonable time. We think the district court reached the correct result in denying the motion to vacate its December 1st dismissal order. Notwithstanding our agreement with the result, we believe the district court lacked jurisdiction to entertain the motion and decide Breit’s motion to vacate on its merits. Accordingly, although the district court’s reasoning, that the motion merely sought to stay the running of the 120-day period, seems impeccable, we express no opinion as to the correctness of the district court’s denial of the motion on its merits since we find that the district court lacked jurisdiction to consider the motion. Breit, by his motion to vacate, asked the district court to reconsider its dismissal order which had become final at the time" }, { "docid": "12282846", "title": "", "text": "35 were outstanding in the record, the Court would be frustrated in carrying out its desire to reduce or modify the sentence. The language of Rule 35(b) by its own terms limits a court’s power, or jurisdiction, to act on a motion to reduce or modify a sentence to the 120-day period following sentencing. The limiting language of Rule 35(b) is even more circumscribed by the provisions of Fed.R.Crim.P. 45(b) which permits no enlargement of the 120-day period. The Notes of the Advisory Committee are consistent with the language of the rule that a court must consider and decide a motion under Rule 35(b) within the 120-day period. Nevertheless, following the leading case of United States v. Stollings, 516 F.2d 1287, 1289-90 (4th Cir.1975), the several circuits which considered the matter concluded that Rule 35(b) did not mean what it said but instead meant that a motion under Rule 35(b) must be filed within the 120-day period and that a court had a “reasonable time” thereafter to consider the motion without regard to the 120-day limitation. Dictum in United States v. Addonizio, 442 U.S. 178, 189, 99 S.Ct. 2235, 2242, 60 L.Ed.2d 805 (1979), without mentioning Stollings or the other circuit court decisions, stated unequivocally that the 120-day time period “is jurisdictional and may not be extended.” Had the dictum in Addonizio been its holding, Stollings and the cases adhering to its ruling, would clearly have been overruled. Nevertheless, some circuits have disregarded the Addonizio dictum and have continued to follow Stollings. See Government of Virgin Islands v. Gereau, 603 F.2d 438, 442 (3d Cir.1979); United States v. Smith, 650 F.2d 206, 209 (9th Cir.1981); United States v. DeMier, 671 F.2d 1200, 1205-06 (8th Cir.1982). I cannot predict what the Fourth Circuit, the Stollings circuit, will do when presented with this issue post Addonizio but the reasoning in United States v. Kajevic, 711 F.2d 767 (7th Cir.1983) and in United States v. Pollack, 655 F.2d 243 (D.C.Cir. 1980) appear to me to be impregnable. Without questioning the merits of the Stollings decision, it seems to me that the Fourth Circuit" }, { "docid": "6215120", "title": "", "text": "rule is recognized by both the Third and Ninth Circuits. See United States v. Janiec, 505 F.2d 983 (3d Cir. 1974), cert. denied, 420 U.S. 948, 95 S.Ct. 1331, 43 L.Ed.2d 427 (1975); Leyvas v. United States, 371 F.2d 714 (9th Cir. 1967). [Id. at 529.] Accord, United States v. Smith, 650 F.2d 206, 209 (9th Cir. 1981); Government of Virgin Islands v. Gereau, 603 F.2d 438, 442 n.2 (3d Cir. 1979); United States v. Mendoza, 581 F.2d 89, 90 (5th Cir. 1978) (en banc)-, United States v. Stollings, 516 F.2d 1287, 1289-90 (4th Cir. 1975). In this case, the Government cites the following passage from United States v. Addonizio, 442 U.S. 178, 99 S.Ct. 2235, 60 L.Ed.2d 805 (1979), to support its contention that the district court had lost jurisdiction to rule on the DeMiers’ motion: [0]nce a sentence has been imposed, the trial judge’s authority to modify it is also circumscribed. Federal Rule Crim.Proc. 35 now authorizes district courts to reduce a sentence within 120 days after it is imposed or after it has been affirmed on appeal. The time period, however, is jurisdictional and may not be extended. [Id. at 189, 99 S.Ct. at 2242 (footnotes omitted).] The Supreme Court in Addonizio, however, did not consider the issue now before this court. The Court in Addonizio answered the sole question of whether federal prisoners could, under 28 U.S.C. § 2255, collaterally attack their original sentences when postsentencing changes in the policies of the United States Parole Commission prolonged their actual imprisonment beyond the period contemplated by the sentencing judge. The Court addressed only the jurisdictional issue and determined that section 2255 does not provide a basis for challenging the length of time actually served under an otherwise valid final judgment. Further, the Supreme Court did not examine the jurisdictional dimensions of Rule 35 nor did it rule that a sentencing judge lacked power to reconsider and reduce a sentence after the expiration of 120 days upon a timely filed Rule 35 motion. By noting that the time period of Rule 35 is “jurisdictional and may not be" }, { "docid": "17168972", "title": "", "text": "them in dictum. See United States v. Rice, 671 F.2d 455, 459 n. 5 (11th Cir.1982). But all are circuits that followed Stollings before Addonizio was decided. (The Eleventh Circuit in Rice cited the Fifth Circuit’s pre-Addonizio decision in Mendoza, a binding precedent in the Eleventh Circuit since it preceded the creation of that circuit out of the Fifth Circuit by mitosis.) The District of Columbia Circuit has expressed skepticism about the continued validity of Stollings after Addonizio. See United States v. Pollack, 655 F.2d 243, 246 (D.C.Cir.1980). And this circuit, in United States v. Inendino, 655 F.2d 108 (7th Cir.1981), intimated that the 120-day limitation is indeed a limitation on the judge’s power to act, and not just on the defendant’s time for filing his motion. “Rule 35 does not refer to any time period during which a defendant must make his motion to reduce sentence. It imposes instead a limit on the time during which the sentencing judge may act to reduce the sentence. This time limit is jurisdictional [citing Addonizio and, in a footnote, Hunter], and it may not be extended at the discretion of the district court.” Id. at 109 (footnotes omitted). “A defendant can easily avoid a situation such as occurred in this case by filing his Rule 35 motion within the first sixty days after sentencing. The court would then have adequate time to decide the motion before the expiration of its jurisdiction .. .. ” Id. at 110 (footnotes omitted and emphasis added). Although Hunter and Inendino did not involve timely Rule 35(b) motions and hence are distinguishable from the Stollings line, their reasoning applies to timely motions. In addition, the background and language of Rule 35(b), the Notes of the Advisory Committee, Addonizio, and the importance of having clear jurisdictional criteria point to the same conclusion: the district judge loses jurisdiction after 120 days. While Judge Will’s absence when the motion was filed, and the government’s acquiescence in his acting after the expiration of the 120 days, are regrettable, it is hard to understand why the defendant’s counsel waited till the 109th" }, { "docid": "17168970", "title": "", "text": "the Court was not whether a district judge could ever reduce sentence after 120 days but whether actions taken by the Parole Commission after sentencing that had the effect of making the defendant’s period of imprisonment longer than the district judge had expected it to be were a proper basis for a collateral attack on the sentence under 28 U.S.C. § 2255. The Court held they were not. En route to this conclusion it stated, right after the passage quoted above, “The import of this statutory scheme is clear: the judge has no enforceable expectations with respect to the actual release of a sentenced defendant short of his statutory term .... To require the Parole Commission to act in accordance with judicial expectations, and to use collateral attack as a mechanism for ensuring that these expectations are carried out, would substantially undermine the congressional decision to entrust release determinations to the Commission and not the courts.” 442 U.S. at 190, 99 S.Ct. at 2243. This passage suggests that the reference to the 120-day limitation in Rule 35(b) was not a casual observation but an organic part of' the Court’s reasoning. That the judge could not act after 120 days was some indication that Congress wanted to confine release determinations to the Parole Commission. If the judge could sit on a motion filed within 120 days until he saw what the Parole Commission intended to do, as he did here, the Court’s conclusion would be undermined. If the Parole Commission had not taken a hard line with Kajevic, Judge Will probably would have let his original sentence stand. By reducing the sentence after learning of the Commission’s action he intervened in the release determination. Only the view that the 120-day limit is a limit just on the time to file allowed him to do this. Three circuits, disregarding the dictum in Addonizio, continue to follow Stollings. See Government of Virgin Islands v. Ger-eau, 603 F.2d 438, 442 (3d Cir.1979); United States v. Smith, 650 F.2d 206, 209 (9th Cir.1981); United States v. DeMier, 671 F.2d 1200,1205-06 (8th Cir.1982). Another has joined" }, { "docid": "17168971", "title": "", "text": "Rule 35(b) was not a casual observation but an organic part of' the Court’s reasoning. That the judge could not act after 120 days was some indication that Congress wanted to confine release determinations to the Parole Commission. If the judge could sit on a motion filed within 120 days until he saw what the Parole Commission intended to do, as he did here, the Court’s conclusion would be undermined. If the Parole Commission had not taken a hard line with Kajevic, Judge Will probably would have let his original sentence stand. By reducing the sentence after learning of the Commission’s action he intervened in the release determination. Only the view that the 120-day limit is a limit just on the time to file allowed him to do this. Three circuits, disregarding the dictum in Addonizio, continue to follow Stollings. See Government of Virgin Islands v. Ger-eau, 603 F.2d 438, 442 (3d Cir.1979); United States v. Smith, 650 F.2d 206, 209 (9th Cir.1981); United States v. DeMier, 671 F.2d 1200,1205-06 (8th Cir.1982). Another has joined them in dictum. See United States v. Rice, 671 F.2d 455, 459 n. 5 (11th Cir.1982). But all are circuits that followed Stollings before Addonizio was decided. (The Eleventh Circuit in Rice cited the Fifth Circuit’s pre-Addonizio decision in Mendoza, a binding precedent in the Eleventh Circuit since it preceded the creation of that circuit out of the Fifth Circuit by mitosis.) The District of Columbia Circuit has expressed skepticism about the continued validity of Stollings after Addonizio. See United States v. Pollack, 655 F.2d 243, 246 (D.C.Cir.1980). And this circuit, in United States v. Inendino, 655 F.2d 108 (7th Cir.1981), intimated that the 120-day limitation is indeed a limitation on the judge’s power to act, and not just on the defendant’s time for filing his motion. “Rule 35 does not refer to any time period during which a defendant must make his motion to reduce sentence. It imposes instead a limit on the time during which the sentencing judge may act to reduce the sentence. This time limit is jurisdictional [citing Addonizio and, in" }, { "docid": "12282845", "title": "", "text": "OPINION WARRINER, District Judge. On 20 October 1983 defendant filed a timely motion under Fed.R.Crim.P. 35(b) seeking a reduction or modification of his sentence. The Court reviewed the record, the presentence report, received letters from interested persons, and heard counsel in oral argument. On the basis of this extensive and deliberate review, the Court concluded that the motion should be denied and entered an order accordingly. A few days thereafter, and just within the 120-day limit provided by Rule 35(b), defendant filed a second motion under Rule 35. Since defendant had fully surveyed the reasons for reducing his sentence in the motion filed on 20 October the second motion advanced no specific grounds but was accompanied by a letter from counsel requesting the Court not to rule immediately on the motion but to delay for an unspecified period of time without ruling. The reason advanced was that events might arise after the expiration of the 120-day period which would prompt the Court to want to reduce or modify the sentence. If no motion under Rule 35 were outstanding in the record, the Court would be frustrated in carrying out its desire to reduce or modify the sentence. The language of Rule 35(b) by its own terms limits a court’s power, or jurisdiction, to act on a motion to reduce or modify a sentence to the 120-day period following sentencing. The limiting language of Rule 35(b) is even more circumscribed by the provisions of Fed.R.Crim.P. 45(b) which permits no enlargement of the 120-day period. The Notes of the Advisory Committee are consistent with the language of the rule that a court must consider and decide a motion under Rule 35(b) within the 120-day period. Nevertheless, following the leading case of United States v. Stollings, 516 F.2d 1287, 1289-90 (4th Cir.1975), the several circuits which considered the matter concluded that Rule 35(b) did not mean what it said but instead meant that a motion under Rule 35(b) must be filed within the 120-day period and that a court had a “reasonable time” thereafter to consider the motion without regard to the 120-day" }, { "docid": "18321859", "title": "", "text": "have recognized extensions of jurisdiction for reasonable periods of time beyond 120 days in order to consider motions filed within the designated period. In United States v. Stollings, 516 F.2d 1287, 1289 (4th Cir.1975), for example, the Court of Appeals for the Fourth Circuit ruled that the district court does not lose jurisdiction to act upon a rule 35 motion at the expiration of the 120-day period when the motion has been filed before the deadline— at least for so long as the sentencing judge reasonably needs time to consider and act upon the motion. Other circuits have followed suit, characterizing the language in rule 35(b) as a limitation on the period for filing a motion but not as a limitation on the Court’s jurisdictional authority to decide it. See United States v. DeMier, 671 F.2d 1200, 1205-1206 (8th Cir.1982); United States v. Smith, 650 F.2d 206, 209 (9th Cir.1981); Government of Virgin Islands v. Gereau, 603 F.2d 438, 442 (3d Cir.1979). However, the Court of Appeals for the Seventh Circuit, following the dictum in United States v. Addonizio, 442 U.S. 178, 99 S.Ct. 2235, 60 L.Ed.2d 805 (1979) (quoted above), has apparently rejected the holding of United States v. Stollings, 516 F.2d 1287 (4th Cir.1975), and its projeny and has, instead, suggested a near-literal interpretation of rule 35(b). In United States v. Inendino, 655 F.2d 108, 109-110 (7th Cir.1981), the court intimiated that the 120-day limitation is indeed a limitation on the sentencing judge’s power to act and not just on the defendant’s time for filing his motion: Rule 35 imposes ... a limit on the time during which the sentencing judge may act to reduce the sentence. This time limit is jurisdictional, ... and it may not be extended at the discretion of the district court. One of the purposes of Rule 35 is to permit defendants to present new evidence not available at the time of sentencing, and a defendant may do so in motion to reconsider denial of a Rule 35 motion, but that evidence must be presented within the 120-day limit established in the rule." }, { "docid": "12282847", "title": "", "text": "limitation. Dictum in United States v. Addonizio, 442 U.S. 178, 189, 99 S.Ct. 2235, 2242, 60 L.Ed.2d 805 (1979), without mentioning Stollings or the other circuit court decisions, stated unequivocally that the 120-day time period “is jurisdictional and may not be extended.” Had the dictum in Addonizio been its holding, Stollings and the cases adhering to its ruling, would clearly have been overruled. Nevertheless, some circuits have disregarded the Addonizio dictum and have continued to follow Stollings. See Government of Virgin Islands v. Gereau, 603 F.2d 438, 442 (3d Cir.1979); United States v. Smith, 650 F.2d 206, 209 (9th Cir.1981); United States v. DeMier, 671 F.2d 1200, 1205-06 (8th Cir.1982). I cannot predict what the Fourth Circuit, the Stollings circuit, will do when presented with this issue post Addonizio but the reasoning in United States v. Kajevic, 711 F.2d 767 (7th Cir.1983) and in United States v. Pollack, 655 F.2d 243 (D.C.Cir. 1980) appear to me to be impregnable. Without questioning the merits of the Stollings decision, it seems to me that the Fourth Circuit now faced with the unequivocal language of Rule 35(b), the unequivocal language of Rule 45(b), the unequivocal language of the Notes of the Advisory Committee, now buttressed by the unequivocal language of a unanimous Supreme Court in Addonizio, simply no longer can adhere to the Stollings view of what the rulemakers ought to have done as opposed to what they actually did. Accordingly, I rule that though the second motion under Rule 35, filed herein on 11 November 1983, was timely filed, with the expiration of the 120-day period this Court no longer has the power or jurisdiction to consider the motion and that accordingly the motion must be DISMISSED. An appropriate judgment shall issue. . Appeals toll the commencement of the 120-day period. See Fed.R.Crim.P. 35(b)." }, { "docid": "22113875", "title": "", "text": "not the type of situation for which excusable neglect in Rule 4(b) was meant to provide. We have considered the circumstances surrounding Breit’s failure to appeal timely. Whatever we would have done with the motion had we considered it initially, because we do not think the district court abused its discretion in finding there existed no excusable neglect, we affirm the court’s order denying Breit’s motion to extend the time within which to file an appeal from the Rule 35(b) motion dismissal order of December 1, 1983. We next consider whether the district court was correct in refusing to vacate its December 1st dismissal order. The essence of the reasoning behind the dismissal order, which Breit now seeks to have vacated, is the district court’s interpretation of then-existing law on the issue of jurisdiction to decide Rule 35(b) motions in light of a dictum in the Supreme Court opinion of United States v. Addonizio, 442 U.S. 178, 99 S.Ct. 2235, 60 L.Ed.2d 805 (1979). The district court reasoned that even though our decision in United States v. Stollings, 516 F.2d 1287 (4th Cir.1975), provides that a court may have a reasonable time after the expiration of the 120-day period to consider a motion which has been timely filed within that period, a dictum in Addonizio states that the 120-day period of Rule 35(b) is jurisdictional and may not be extended. 442 U.S. at 189. Relying on this dictum as well as the language of Rule 35(b), Rule 45(b), and the Advisory Committee notes thereto, the court dismissed the motion for want of jurisdiction by reasoning that this court would decide a Stollings issue similarly after Addonizio. Contrary to that court’s expectation, however, this court thereafter decided United States v. Schafer, 726 F.2d 155 (4th Cir.1984), in which we reaffirmed Stollings. Id. at 157-58. Breit moved to vacate the court’s dismissal order on the ground that Schafer, reaffirming Stollings, establishes that a court has a reasonable time beyond the 120-day period to consider a timely-filed Rule 35(b) motion. The district court denied the motion to vacate by reasoning that notwithstanding its" }, { "docid": "17168968", "title": "", "text": "been less appropriate if all Rule 35(b) had done was to require the defendant to file his motion within 120 days after the sentence became final. Although some of the courts of appeals described the 120-day limitation as we had in Hunter, as a limitation on the court’s power, see, e.g., United States v. Olds, 426 F.2d 562, 565 (3d Cir.1970); United States v. Kahane, 527 F.2d 491 (2d Cir.1975); United States v. Norton, 539 F.2d 1082 (5th Cir.1976), by 1978 many were treating it as a limitation on the period for filing the motion for Rule 35(b) relief — including the courts of appeals for the Third and Fifth Circuits, which previously had seemed to follow the approach of Hunter. See United States v. Janiec, 505 F.2d 983, 985 n. 2 (3d Cir.1974); United States v. United States District Court, 509 F.2d 1352, 1356 (9th Cir.1975); United States v. Stollings, 516 F.2d 1287, 1289-90 (4th Cir.1975); United States v. Williams, 573 F.2d 527, 529 (8th Cir.1978); United States v. Mendoza, 581 F.2d 89 (5th Cir.1978) (en banc). In Stoll-ings (which became the leading case), where the motion was filed on the 119th day and ruled on five days later, the. court said it would subject defendants to “devastatingly and arbitrarily fortuitous” consequences to hold that the judge had acted beyond his jurisdiction. 516 F.2d at 1288. Our decision in United States v. Braasch, 542 F.2d 442 (7th Cir. 1976), treated the 120-day limitation as a limitation on the time for filing the motion rather than on the time, for acting on it, but the issue of which it was was not discussed and apparently had not been raised. Then came United States v. Addonizio, 442 U.S. 178, 189, 99 S.Ct. 2235, 2242, 60 L.Ed.2d 805 (1979), where a unanimous Supreme Court stated, “Federal Rule Crim. Proc. 35 now authorizes District Courts to reduce a sentence within 120 days after it is imposed or after it has been affirmed on appeal. The time period, however, is jurisdictional and may not be extended.” (Footnotes omitted.) This was dictum. The question before" } ]

[ { "docid": "7187901", "title": "", "text": "military judge, the defense requested that K be granted immunity so that the defense could examine him relative to his statements. The defense could not, or would not, assert that if K were granted immunity and testified, that such testimony would clearly exculpate the accused. On that basis, the military judge denied the request. Although it is not abundantly clear that a military judge has the power to grant immunity to a witness, there is certainly some authority in military jurisprudence that he does. United States v. Villines, 13 M.J. 46 (C.M.A.1982). It is, however, clear that the convening authority does have the power to grant immunity to a defense witness; testimonial immunity is sufficient to overcome a witness’ assertion of rights against self-incrimination. Article 46, U.C.M.J.; M.C.M., 1969 (Rev.), para. 68h; United States v. Villines, supra; United States v. Kirsch, 15 U.S.C.M.A. 84, 35 C.M.R. 56 (1964); Mil.R.Evid. 301(c)(1). In either case, fairness dictates that where the prosecution seeks to introduce the hearsay statement of an absent witness, claim ing him to be unavailable, the witness should be made available if it is within the power of the prosecutorial authority. Put another way, a prosecution witness is not “unavailable” under Mil.R.Evid. 804(a)(1) even though he asserts his privilege against self-incrimination if he can be made available through the granting of testimonial immunity. Fairness allows no other result, and reference to the old adage, “you can’t have your cake and eat it at the same time” is most appropriate. The prosecution has an option; it can either do without the evidence or it can introduce appropriate hearsay statements of an absent witness; however, if the absence can be cured by testimonial immunity, such immunity must be granted. The confrontation clause of the U.S. Constitution requires nothing less. We find therefore that the pretrial statements of K were improperly received into evidence. Testing for prejudice we note that the case was contested, it was a classic one-on-one situation where the credibility of the only prosecution witness was low, and there was no substantial independent evidence of guilt. On these facts, we" } ]

[ { "docid": "8231206", "title": "", "text": "801(c), Manual, supra. Pasetti, however, was not called to the stand to repeat the statements he made at the time of the offense. Cf. Mil.R.Evid. 801(d)(1). The parties agreed that if Pasetti were called, he would assert his privilege against self-incrimination. Consequently, the prosecution evidenced his statements by calling Gomez, the person to whom these statements were made. The first granted issue implicates several military rules of evidence utilized by the prosecution to admit Pasetti’s out-of-court statements to prove elements of the charged offense. Mil.R.Evid. 801(d)(2)(E) and 804(b)(3). In passing, we note that Mil.R.Evid. 803(1) might also be implicated for this same purpose as well, even though not addressed at the trial level or the Court of Military Review. Cf. United States v. Watkins, 21 M.J. 224 (C.M.A. 1986). Moreover, sixth-amendment confrontation questions also exist, as pointed out by the court below. See United States v. Inadi, — U.S. —, 106 S.Ct. 1121, 89 L.Ed.2d 390 (1986); Ohio v. Roberts, 448 U.S. 56, 66, 100 S.Ct. 2531, 2539, 65 L.Ed.2d 597 (1980). We do not decide these difficult questions today for reasons stated in part II of this opinion. II Our examination of the record of trial and the opinion below reveals a factual question which must be resolved prior to disposing of the legal issues in this appeal. As noted above, the prosecution relied not only on Pasetti’s statements to prove the elements of the charge of rape, but also on appellant’s statements to Gomez around the time of the alleged offense, his subsequent written statement to Air Force investigators, and his later testimony at Pasetti’s court-martial. In these statements appellant consistently asserted an honest and reasonable belief, on the basis of the conduct of the alleged victim, that she voluntarily consented to an act of sexual intercourse with him. In addition, there was other evidence that pointed at least to the appearance of consent by the victim. Further, in his argument on findings, trial defense counsel reiterated this defense theory to the factfinder, the military judge. In our view, the evidence was sufficient to raise the defense of" }, { "docid": "14951823", "title": "", "text": "... I wish to make the following offer of proof concerning the availability of Airmen [sic] Pasetti. And the offer is that Airmen [sic] Pasetti is not available as a witness in this case. That if called to testify, he (Pasetti) would assert his Article 31 privilege and refuse to do so. It is my understanding that the defense is in agreement with that aspect of the offer of proof ... There is no dispute between the parties as to the witness’ availability- MJ: Is that your understanding Capt. M? DC: Yes, your Honor, it is. Mil.R.Evid. 804(b)(3) requires as a predicate that the declarant be unavailable. Unavailability includes: exemption by the military judge from testifying because of privilege; and the witness persists in refusing to testify even though the Court orders him to do so. Mil.R. Evid. 804(a)(1) and (2). Clearly implicit therein is the requirement that the witness be called before the court and there assert the privilege to each question asked. By not calling the declarant, trial counsel failed to establish the witness as \"unavailable”. United States v. Meyer, 14 M.J. 935 (A.C.M.R.1982). The offer of the trial counsel and the similar \"understanding” of the defense counsel is not, in my opinion, a sufficient substitute. In addition, Pasetti could have been made available by the Government through the use of testimonial immunity. United States v. Valente, 17 M.J. 1087 (A.F.C.M.R. 1984)." }, { "docid": "8231209", "title": "", "text": "the Air Force for remand to that court for consideration of the following question: WHETHER ASSUMING, ARGUENDO, THE EVIDENCE OF PASETTI’S STATEMENTS WAS ADMISSIBLE, THE EVIDENCE OF RECORD DISPROVES THE AFFIRMATIVE DEFENSE OF REASONABLE AND HONEST MISTAKE OF FACT BEYOND A REASONABLE DOUBT. In addition, that court may consider the other issues raised by Chief Judge Everett in his separate opinion. Judge SULLIVAN did not participate. . Like Judge Candios, dissenting below. United States v. Baran, 19 M.J. 595, 603, 605 (1984), but unlike the majority, 19 M.J. at 603, we view Pasetti’s statement as being extremely critical on the issue of the victim’s consent or the reasonableness of appellant's belief that she consented. . Cf. R.C.M. 916(j) and para. 45, Part IV, Manual for Courts-Martial, United States, 1984. . Resolution in favor of the Government of the two issues granted in this case would not obviate our concern. Those issues relate to proof of the elements of the charged offense and not the need for, and sufficiency of, evidence to disprove an affirmative defense. EVERETT, Chief Judge (concurring): I write separately to outline some of my reasons for concern that justice was not done in this case. Pasetti’s extrajudicial statement to Gomez was admitted by the military judge on the theory that it qualified under Mil.R. Evid. 801(d)(2)(E) as “a statement by a co-conspirator of a party during the course and in furtherance of the conspiracy” and, in the alternative, under Mil.R.Evid. 804(b)(3) as a declaration against penal interest. Of course, the burden was on the Government as the proponent to establish that despite the hearsay prohibition the statement was admissible under these rules. In my view, this burden was not carried because the Government failed to demonstrate (a) that a conspiracy existed, and (b) if it did exist, that Pasetti’s statement to Gomez was “in furtherance of the conspiracy.” Admissibility of a statement against penal interest requires as a predicate that the declarant be unavailable. As Judge Canellos observed in his dissent in the Court of Military Review, trial counsel failed to establish Pasetti’s unavailability. 19 M.J. 595," }, { "docid": "8231205", "title": "", "text": "U.S. 644, 17 S.Ct. 210, 41 L.Ed. 584 (1897), this Court has recognized this theory of criminal liability under Article 120 of the Code. See United States v. Short, 4 U.S.C.M.A. 437, 441-43, 16 C.M.R. 11, 15-17 (1954). Trial counsel indicated at various points in the record of trial that he intended to use Pasetti’s out-of-court statements to show the victim’s condition at the time of the offense and to corroborate appellant’s admissions that he had sexual intercourse with her. The statements of Pasetti to Gomez establish that he had been in a position to observe her and that he was of the opinion that she was so drunk that she did not know with whom she was engaging in sexual acts. Moreover, although not expressly stated, they could be reasonably interpreted to mean that appellant was going to or had already engaged in sexual intercourse with her. In this light, it was quite clear that the prosecution was offer ing Pasetti’s out-of-court statements for “the truth of the matter[s] asserted” in these statements. Mil.R.Evid. 801(c), Manual, supra. Pasetti, however, was not called to the stand to repeat the statements he made at the time of the offense. Cf. Mil.R.Evid. 801(d)(1). The parties agreed that if Pasetti were called, he would assert his privilege against self-incrimination. Consequently, the prosecution evidenced his statements by calling Gomez, the person to whom these statements were made. The first granted issue implicates several military rules of evidence utilized by the prosecution to admit Pasetti’s out-of-court statements to prove elements of the charged offense. Mil.R.Evid. 801(d)(2)(E) and 804(b)(3). In passing, we note that Mil.R.Evid. 803(1) might also be implicated for this same purpose as well, even though not addressed at the trial level or the Court of Military Review. Cf. United States v. Watkins, 21 M.J. 224 (C.M.A. 1986). Moreover, sixth-amendment confrontation questions also exist, as pointed out by the court below. See United States v. Inadi, — U.S. —, 106 S.Ct. 1121, 89 L.Ed.2d 390 (1986); Ohio v. Roberts, 448 U.S. 56, 66, 100 S.Ct. 2531, 2539, 65 L.Ed.2d 597 (1980). We do not" }, { "docid": "14951822", "title": "", "text": "1293 (D.C.Cir.1984). It seems an anomaly that when a witness testifies on direct examination and then asserts his rights against self-incrimination to refuse to answer questions on cross-examination, the testimony will be stricken if not on a collateral matter, United States v. Hill, 18 M.J. 459 (C.M.A.1984); and yet, we would allow similar testimony to be received into evidence, without cross-examination through a third party. Permitting a rambling narrative by a boisterous, very drunk declarant, which is somewhat self serving, to stand unchallenged by cross-examination, and allowing adverse critical inferences to be drawn therefrom, leads me to question whether the accused received due process of law. For all the above reasons, I am convinced that the statement was improperly admitted into evidence, and that such action was to the prejudice of the accused. I would set aside the findings and the sentence and order a rehearing. When Airman Gomez was called to testify as to what Pasetti had told him regarding the case before the Court, the defense objected. The following colloquy took place: TC: ... I wish to make the following offer of proof concerning the availability of Airmen [sic] Pasetti. And the offer is that Airmen [sic] Pasetti is not available as a witness in this case. That if called to testify, he (Pasetti) would assert his Article 31 privilege and refuse to do so. It is my understanding that the defense is in agreement with that aspect of the offer of proof ... There is no dispute between the parties as to the witness’ availability- MJ: Is that your understanding Capt. M? DC: Yes, your Honor, it is. Mil.R.Evid. 804(b)(3) requires as a predicate that the declarant be unavailable. Unavailability includes: exemption by the military judge from testifying because of privilege; and the witness persists in refusing to testify even though the Court orders him to do so. Mil.R. Evid. 804(a)(1) and (2). Clearly implicit therein is the requirement that the witness be called before the court and there assert the privilege to each question asked. By not calling the declarant, trial counsel failed to establish the" }, { "docid": "8231210", "title": "", "text": "EVERETT, Chief Judge (concurring): I write separately to outline some of my reasons for concern that justice was not done in this case. Pasetti’s extrajudicial statement to Gomez was admitted by the military judge on the theory that it qualified under Mil.R. Evid. 801(d)(2)(E) as “a statement by a co-conspirator of a party during the course and in furtherance of the conspiracy” and, in the alternative, under Mil.R.Evid. 804(b)(3) as a declaration against penal interest. Of course, the burden was on the Government as the proponent to establish that despite the hearsay prohibition the statement was admissible under these rules. In my view, this burden was not carried because the Government failed to demonstrate (a) that a conspiracy existed, and (b) if it did exist, that Pasetti’s statement to Gomez was “in furtherance of the conspiracy.” Admissibility of a statement against penal interest requires as a predicate that the declarant be unavailable. As Judge Canellos observed in his dissent in the Court of Military Review, trial counsel failed to establish Pasetti’s unavailability. 19 M.J. 595, 603 n. I am puzzled by trial defense counsel’s apparent concession that Pasetti was unavailable because, if called to testify, he would assert his privilege under Article 31, Uniform Code of Military Justice, 10 U.S.C. § 831, and refuse to do so. Pasetti had already been tried; accordingly, it would appear that his testimony could have been made available through use of testimonial immunity. Cf. United States v. Valente, 17 M.J. 1087 (A.F.C.M.R.1984). Sometimes a grant of testimonial immunity can create problems for the Government, cf. United States v. Gardner, 22 M.J. 28 (C.M.A. 1986); but after the person to be immunized has already been tried, those problems should be minimal. Thus, a “reasonable means” existed to obtain Pasetti’s testimony. See Mil.R.Evid. 804(a)(5). More important, I fully agree with Judge Canellos that this was not a statement against penal interest within the contemplation of Mil.R.Evid. 804(b)(3). 19 M.J. at 603-04. Cf. United States v. Dillon, 18 M.J. 340 (C.M.A.1984). For a statement to be admissible under this hearsay exception, the proponent must establish “that a" }, { "docid": "14951814", "title": "", "text": "been spilled on her pants and that she had given them to Baran to be laundered. . Rule 801(d)(2)(E) provides: \"(d) Statements which are not hearsay. A statement is not hearsay if: (2) Admission by party-opponent. The statement is offered against a party and is (E) a statement by a co-conspirator of a party during the course and in furtherance of the conspiracy.\" . Rule 804(b)(3), in pertinent part, provides: (b) Hearsay exceptions. The following are not excluded by the hearsay rule if the declarant is unavailable as a witness: (3) Statement against interest. A statement which ... at the time of its making ... so far tended to subject the declarant to civil or criminal liability ... that a reasonable person in the position of the declarant would not have made the statement unless the person believed it to be true.” . “In all criminal prosecutions, the accused shall enjoy the right ... to be confronted with the witnesses against him ____\" U.S. Const. amend. VI. . He thus opened himself to potential liability for the sexual assaults perpetrated by Hawks and Baran. See U.C.M.J., Art. 77, 10 U.S.C.A. § 877; and Para. 156, M.C.M., 1969 (Rev.). . See Ohio v. Roberts, 448 U.S. 56, 66 n. 9, 100 S.Ct. 2531, 2539 n. 9, 65 L.Ed.2d 597 (1980). . In United States v. Valente, 17 MJ. 1087, ACM 24051 (A.F.C.M.R.1984), this court held that the military judge erred when he denied a defense request to grant immunity to a declarant who was \"unavailable” in the sense that, if called, he would assert his privilege against self-incrimination. The defense not only made no such request in the case before us but conceded that the witness was unavailable. We decline to extend our holding in Valente so as to require the military judge to grant immunity to such a declarant sua sponte in spite of the concessions, desires, or tactics of the parties. CANELLOS, Judge, dissenting: I dissent. My review of the evidence in this case convinces me that the out-of-court statement of Pasetti did not qualify as “a statement against" }, { "docid": "12133566", "title": "", "text": "prove Ms. Wisely’s blood type by offering a statement from her doctor. However, it relied on hearsay evidence and did not call the doctor himself to testify. See United States v. Murphy, 23 M.J. 310 (C.M.A.1987). Mil.R.Evid. 803(3) permits admission of hearsay evidence of statements by an out-of-court declarant as to a “[t]hen existing mental, emotional, or physical condition.” Here, the doctor’s statement was offered to show Ms. Wisely’s blood type. Since out-of-court statements as to someone else’s existing condition do not fit within the letter or rationale of this rule, her testimony was inadmissible on this basis. United States v. Stanley, 21 M.J. 249 (C.M.A. 1986). See Drafter’s Analysis, Mil.R.Evid. 803(3), Manual, supra at A 22-43. Mil.R.Evid. 803(4), as well, provides no solace for appellant. It covers statements made by an out-of-court declarant “for purposes of medical diagnosis or treatment” and is grounded in the self interest of the patient in seeking medical assistance. See United States v. Welch, 25 M.J. 23, 25 (C.M.A. 1987). However, the doctor’s statements to the patient in response do not qualify as reliable under this rule. Arguably, the challenged testimony might have been admitted under Mil.R.Evid. 803(24) or Mil.R.Evid. 804(b)(4)(B). These bases for admission were not asserted by defense counsel at trial. See Mil.R.Evid. 103(a)(1). Moreover, appellant did not show the unreasonableness of producing Ms. Wisely’s doctor (see Mil.R.Evid. 803(24)(B)) or his unavailability to testify at this trial. See Mil.R.Evid. 804(a). He also did not offer any argument to the judge that a blood type was a matter of personal history within the meaning of Mil.R.Evid. 804(b)(4). See United States v. Carvalho, 742 F.2d 146, 151 (4th Cir.1984). Appellant as proponent of admission of this evidence did not meet his evidentiary burden under these rules. Cf United States v. Vanderwier, 25 M.J. 263, 265 (C.M.A.1987). The decision of the United States Army Court of Military Review is affirmed. Chief Judge EVERETT and Judge COX concur. . The testimony of this witness might also be construed as her opinion as to the specific believability and truthfulness of the victim’s story rather than her opinion" }, { "docid": "14951809", "title": "", "text": "on the appellant. See McConnico, 7 M.J. at 309. Second, the statements were against Pasetti’s penal interests. A reasonable person would not have made such statements unless he believed they were true. These are circumstances which have been widely recognized as providing circumstantial guarantees of trustworthiness. Third, the evidence convincingly establishes that Pasetti had personal knowledge of the events he was describing. Fourth, the nature of the statements negates any reasonable possibility that Pasetti’s statements were flawed by faulty recollection. Fifth, defense’s cross-examination of Gomez provided ample information from which the court could properly evaluate the extent to which Pasetti’s ability to observe and relate events may have been impaired. Sixth, and by no means least, important aspects of Pasetti’s statements were corroborated by (a) the victim’s description of the events preceding the rape, the extent of her intoxication, and her evident lack of awareness during the sexual assaults, and (b) Airman Gomez’ testimony regarding his observations of Airman Pasetti outside the room, Airman Hawks in the room, and the appellant leaving the room naked, and his testimony regarding appellant’s statements indicating his state of mind at the time of the offense. See United States v. Alvarez, 584 F.2d 694 (5th Cir.1978). These circumstances constitute overwhelming indicia of reliability from which the finder of fact could evaluate the truth of Pasetti’s statements. California v. Green, 399 U.S. at 161, 90 S.Ct. at 1936. Finally, we note that, under Rule 806, Mil.R.Evid., the defense would have been permitted to attack Pasetti’s credibility. Before concluding that the Sixth Amendment was not violated, however, we must consider an additional factor not yet discussed. The Supreme Court has stated that, at a joint trial, the admission “of the incriminating extrajudicial statements of a nontestifying codefendant can have ‘devastating’ consequences to a non-confessing defendant.” Parker v. Randolph, 442 U.S. 62, 72, 99 S.Ct. 2132, 2138, 60 L.Ed.2d 713 (1979); Bruton, 391 U.S. at 128, 88 S.Ct. at 1623. Although Dutton v. Evans did not involve a joint trial of co-defendants, the Court, nevertheless, again noted that the hearsay evidence in question was not “crucial” or" }, { "docid": "14487496", "title": "", "text": "the ship’s refresher training had been extended through December 2d. Therefore, trial counsel submitted, “a fair inference” existed that Lieutenant Commander Klich continued to be unavailable. Trial counsel further commented that “he is unavailable within the sense of Article 49 UCMJ [10 U.S.C. § 849], because he's on the USS MCDONNELL further than 100 miles from the scene of this trial.” The military judge overruled defense counsel’s objection, stating without elaboration that, “I believe there is an ample ground for taking of the deposition and the admission of it into evidence.” Depositions may be admitted into evidence at trial under the “Former testimony” hearsay exception “if the declarant is unavailable as a witness.” Mil.R.Evid. 804(b)(1), Manual for Courts-Martial, United States, 1969 (Revised edition). For purposes of Mil.R.Evid. 804(b), unavailability includes situations where the witness “is unavailable within the meaning of Article 49(d)(2).” Mil.R.Evid. 804(a)(6). “[Military necessity” is one justification provided under Article 49(d)(2) of the Code for taking and using a deposition. When a deposition is offered against an accused, the Government must establish that the witness is unavailable, both in terms of the hearsay prohibition of Mil.R.Evid. 804(b)(1) and in terms of the Confrontation Clause of the Sixth Amendment. United States v. Cokeley, 22 M.J. 225 (C.M.A.1986); United States v. Crockett, 21 M.J. 423 (C.M.A.1986). “[A] witness is not ‘unavailable’ for purposes of the” Confrontation Clause “unless the prosecutorial authorities have made a good-faith effort to obtain his presence at trial.” Barber v. Page, 390 U.S. 719, 724-25, 88 S.Ct. 1318, 1321-22, 20 L.Ed.2d 255 (1968). See Ohio v. Roberts, 448 U.S. 56, 74, 100 S.Ct. 2531, 2543, 65 L.Ed.2d 597 (1980). As recently reaffirmed by the Supreme Court, the unavailability analysis applies to former testimony because former testimony often is only a weaker substitute for live testimony. It seldom has independent evidentiary significance of its own, but is intended to replace live testimony. If the declarant is available and the same information can be present- . ed to the trier of fact in the form of live testimony, with full cross-examination and the opportunity to view the demean-" }, { "docid": "14951799", "title": "", "text": "which it can properly be inferred that appellant was being truthful when he said he had sexual intercourse with the victim. The fact that there are no witnesses who can provide direct evidence that they saw an unconscious or incapacitated victim being raped does not prevent the government from raising “an inference of the truth of the essential facts admitted” in an accused’s statement. Mil.R.Evid. 304(g)(1). II The prosecution offered Gomez’ testimony regarding Airman Pasetti’s statements under Military Rule of Evidence 801(d)(2)(E) and, in the alternative, under Rule 804(b)(3). Trial defense counsel conceded that the declarant was unavailable but argued that the evidence did not satisfy the requirements of either rule. Appellate defense counsel concur and also cite Bruton v. United States, 391 U.S. 123, 88 S.Ct. 1620, 20 L.Ed.2d 476 (1968); Douglas v. Alabama, 380 U.S. 415, 85 S.Ct. 1074, 13 L.Ed.2d 934 (1965); and United States v. Oliver, 626 F.2d 254 (2nd Cir.1980), as authority that the evidence violated appellant’s Sixth Amendment Right of Confrontation. We find that the evidence was admissible under Rule 803(3), Rule 804(b)(3) and the Sixth Amendment. As a result we need not consider its admissibility under Rule 801(d)(2)(E). A Airman Gomez testified that Pasetti asked him if he wanted “an easy__” This question, if it was hearsay at all, tended to prove Pasetti’s motive or state of mind at the time. As such it was admissible under Military Rule of Evidence 803(3). We next consider whether the evidence of the remainder of his statement satisfies the requirements of Rule 804(b)(3). The defense has conceded the witness’ unavailability. We therefore need only determine whether the statements so far tended to subject Airman Pasetti to criminal liability that a reasonable person in his position would not have made them unless he believed them to be true. Mil.R.Evid. 804(b)(3). The essence of the rule is that the statement must be so self-incriminating that, although a reasonable person might carelessly but truthfully admit such matters, the dangers of accusation and prosecution would discourage such a person both from fabricating a false statement to the same effect and" }, { "docid": "14951815", "title": "", "text": "for the sexual assaults perpetrated by Hawks and Baran. See U.C.M.J., Art. 77, 10 U.S.C.A. § 877; and Para. 156, M.C.M., 1969 (Rev.). . See Ohio v. Roberts, 448 U.S. 56, 66 n. 9, 100 S.Ct. 2531, 2539 n. 9, 65 L.Ed.2d 597 (1980). . In United States v. Valente, 17 MJ. 1087, ACM 24051 (A.F.C.M.R.1984), this court held that the military judge erred when he denied a defense request to grant immunity to a declarant who was \"unavailable” in the sense that, if called, he would assert his privilege against self-incrimination. The defense not only made no such request in the case before us but conceded that the witness was unavailable. We decline to extend our holding in Valente so as to require the military judge to grant immunity to such a declarant sua sponte in spite of the concessions, desires, or tactics of the parties. CANELLOS, Judge, dissenting: I dissent. My review of the evidence in this case convinces me that the out-of-court statement of Pasetti did not qualify as “a statement against penal interest” and was therefore not admissible against the accused under Mil.R.Evid. 804(b)(3). Sec ond, I am convinced that admission of the statement violated the accused’s right of confrontation as guaranteed by the Sixth Amendment; and third, that, on the facts, the admission violated the accused’s right to due process of law. I Looking at the statement itself, I find that it does not so far tend to subject the declarant to civil or criminal liability, that a reasonable man in his position would not have made the statement unless he believed it to be true. In order to make that determination, we must look at the statement itself, the surrounding circumstance of its making, and the point of view of the declarant. This is especially significant because the reason that the Rules allow for the introduction of a “statement against penal interest” even though it is hearsay is because human nature, being what it is, would cause a person to refrain from making a statement which could be used to convict him at a" }, { "docid": "14951816", "title": "", "text": "penal interest” and was therefore not admissible against the accused under Mil.R.Evid. 804(b)(3). Sec ond, I am convinced that admission of the statement violated the accused’s right of confrontation as guaranteed by the Sixth Amendment; and third, that, on the facts, the admission violated the accused’s right to due process of law. I Looking at the statement itself, I find that it does not so far tend to subject the declarant to civil or criminal liability, that a reasonable man in his position would not have made the statement unless he believed it to be true. In order to make that determination, we must look at the statement itself, the surrounding circumstance of its making, and the point of view of the declarant. This is especially significant because the reason that the Rules allow for the introduction of a “statement against penal interest” even though it is hearsay is because human nature, being what it is, would cause a person to refrain from making a statement which could be used to convict him at a criminal trial, unless it were true. That factor is absent if the declarant, for some reason, believes that what he said is not incriminating. Basically, Pasetti declared that: he, the victim, her friend, the accused and Hawks had been drinking all day; that they ended up in his room; that he had voluntary sexual intercourse with the victim; that the accused took pictures; that he then “switched on her” and she didn’t realize it; that later the victim didn’t realize that she was presently having intercourse with Hawks. The statement was made to Gomez in the hallway of a barracks, apparently in a nonseeretive matter and culminated in Pasetti inviting Gomez to “get an easy f_”. Prior to that, Pasetti had been looking for another barracks resident to pass on the same information. Without question, judges and lawyers can construct many criminal offenses of which Pasetti could be culpable; however, the manner in which the statement was made, coupled with Gomez’s assessment of Pasetti (he was very drunk, and when he is drunk, he “runs" }, { "docid": "8231213", "title": "", "text": "any civil liability, the evidence was insufficient to establish that Pasetti or anyone in his position would have believed that his comments subjected him to any liability. In United States v. Dillon, supra, we concluded that “[a] person so intimate with drugs would scarcely have believed that he was making a declaration against penal interest when he mentioned to a friend that he had drugs for sale.” 18 M.J. at 345. Likewise, neither Pasetti nor anyone else would have thought that he was making a declaration against penal interest when he invited others to join in sexual intercourse with the alleged victim. Indeed, Gomez— the very person to whom the statement was made — testified as a government witness on direct examination that he had no idea from Pasetti’s remarks that any crime had been committed. I shall not go further in making this point, for Judge Canellos did so quite effectively in his dissent. I would be reluctant to uphold admissibility of Pasetti’s statement on a theory of “present sense impression” under Mil.R. Evid. 803(1) or “excited utterance” under Mil.R.Evid. 803(2) because these theories were not relied on at trial; were not mentioned in the Court of Military Review’s opinion; and were never raised by counsel. Moreover, it appears that some of Pasetti’s rambling, drunken comments to Gomez do not fit within these exceptions. Finally, there is little occasion to try to justify admissibility of Pasetti’s statement on some ground not argued by counsel and thereby salvage the conviction because the case has many other disturbing features. One of these concerns a possible lack of the effective assistance of counsel. As noted earlier, trial defense counsel gratuitously conceded the unavailability of Pasetti . Moreover, it seems strange that appellant testified at Pasetti’s trial without obtaining a grant of testimonial immunity, so that the Government could not have used his own testimony to prove an essential element of rape — namely, penetration. Inasmuch as the alleged victim did not recall having intercourse with Baran, apparently the Government could not have demonstrated his guilt without introducing his own version of the" }, { "docid": "14951800", "title": "", "text": "Rule 803(3), Rule 804(b)(3) and the Sixth Amendment. As a result we need not consider its admissibility under Rule 801(d)(2)(E). A Airman Gomez testified that Pasetti asked him if he wanted “an easy__” This question, if it was hearsay at all, tended to prove Pasetti’s motive or state of mind at the time. As such it was admissible under Military Rule of Evidence 803(3). We next consider whether the evidence of the remainder of his statement satisfies the requirements of Rule 804(b)(3). The defense has conceded the witness’ unavailability. We therefore need only determine whether the statements so far tended to subject Airman Pasetti to criminal liability that a reasonable person in his position would not have made them unless he believed them to be true. Mil.R.Evid. 804(b)(3). The essence of the rule is that the statement must be so self-incriminating that, although a reasonable person might carelessly but truthfully admit such matters, the dangers of accusation and prosecution would discourage such a person both from fabricating a false statement to the same effect and from communicating it to another. Pasetti’s statements clearly revealed that he and others were engaging in sexual acts with Airman K.P. and that he believed that the victim was incapacitated and unable to consent or object. They revealed, further, that he intended to aid and encourage the related acts of Hawks and Baran and that he solicited Gomez to participate as well. These statements subjected Pasetti to potential criminal liability for engaging in indecent acts, sexual assault and solicitation to rape. In light of all the evidence we find that Pasetti was aware of the wrongful nature of his acts and believed his statements were true. We also find that a reasonable person would not have made such statements unless he believed them to be true. Contrary to the view expressed in the dissenting opinion, we have no difficulty concluding that his statements met the requirements of the rule. See United States v. McConnico, 7 M.J. 302 (C.M.A.1979); cf. United States v. Dillon, 18 M.J. 340 (C.M.A.1984). B The relationship between the Confrontation Clause and" }, { "docid": "8231212", "title": "", "text": "reasonable person in the position of the declarant would not have made the statement unless the person believed it to be true.” The rationale for this exception is that under these circumstances, a guarantee of trustworthiness exists because someone usually does not make a statement that may send him to jail or cost him money unless he believes it to be true. To be fully consistent with this rationale, Mil.R.Evid. 804(b)(3) might better have discarded an objective standard — concerned with the belief of a reasonable person — in favor of a subjective standard — focusing on the belief of the particular declarant. In that event, the issue would be whether Pasetti believed that his statement was against his penal interest; and the belief of a reasonable person in his position would have been important only in showing circumstantially what Pasetti himself believed. However, whether a subjective or objective standard is used makes no difference in this case. Because simple fornication is not recognized as a crime under military law and does not itself create any civil liability, the evidence was insufficient to establish that Pasetti or anyone in his position would have believed that his comments subjected him to any liability. In United States v. Dillon, supra, we concluded that “[a] person so intimate with drugs would scarcely have believed that he was making a declaration against penal interest when he mentioned to a friend that he had drugs for sale.” 18 M.J. at 345. Likewise, neither Pasetti nor anyone else would have thought that he was making a declaration against penal interest when he invited others to join in sexual intercourse with the alleged victim. Indeed, Gomez— the very person to whom the statement was made — testified as a government witness on direct examination that he had no idea from Pasetti’s remarks that any crime had been committed. I shall not go further in making this point, for Judge Canellos did so quite effectively in his dissent. I would be reluctant to uphold admissibility of Pasetti’s statement on a theory of “present sense impression” under Mil.R. Evid." }, { "docid": "8231211", "title": "", "text": "603 n. I am puzzled by trial defense counsel’s apparent concession that Pasetti was unavailable because, if called to testify, he would assert his privilege under Article 31, Uniform Code of Military Justice, 10 U.S.C. § 831, and refuse to do so. Pasetti had already been tried; accordingly, it would appear that his testimony could have been made available through use of testimonial immunity. Cf. United States v. Valente, 17 M.J. 1087 (A.F.C.M.R.1984). Sometimes a grant of testimonial immunity can create problems for the Government, cf. United States v. Gardner, 22 M.J. 28 (C.M.A. 1986); but after the person to be immunized has already been tried, those problems should be minimal. Thus, a “reasonable means” existed to obtain Pasetti’s testimony. See Mil.R.Evid. 804(a)(5). More important, I fully agree with Judge Canellos that this was not a statement against penal interest within the contemplation of Mil.R.Evid. 804(b)(3). 19 M.J. at 603-04. Cf. United States v. Dillon, 18 M.J. 340 (C.M.A.1984). For a statement to be admissible under this hearsay exception, the proponent must establish “that a reasonable person in the position of the declarant would not have made the statement unless the person believed it to be true.” The rationale for this exception is that under these circumstances, a guarantee of trustworthiness exists because someone usually does not make a statement that may send him to jail or cost him money unless he believes it to be true. To be fully consistent with this rationale, Mil.R.Evid. 804(b)(3) might better have discarded an objective standard — concerned with the belief of a reasonable person — in favor of a subjective standard — focusing on the belief of the particular declarant. In that event, the issue would be whether Pasetti believed that his statement was against his penal interest; and the belief of a reasonable person in his position would have been important only in showing circumstantially what Pasetti himself believed. However, whether a subjective or objective standard is used makes no difference in this case. Because simple fornication is not recognized as a crime under military law and does not itself create" }, { "docid": "14951801", "title": "", "text": "from communicating it to another. Pasetti’s statements clearly revealed that he and others were engaging in sexual acts with Airman K.P. and that he believed that the victim was incapacitated and unable to consent or object. They revealed, further, that he intended to aid and encourage the related acts of Hawks and Baran and that he solicited Gomez to participate as well. These statements subjected Pasetti to potential criminal liability for engaging in indecent acts, sexual assault and solicitation to rape. In light of all the evidence we find that Pasetti was aware of the wrongful nature of his acts and believed his statements were true. We also find that a reasonable person would not have made such statements unless he believed them to be true. Contrary to the view expressed in the dissenting opinion, we have no difficulty concluding that his statements met the requirements of the rule. See United States v. McConnico, 7 M.J. 302 (C.M.A.1979); cf. United States v. Dillon, 18 M.J. 340 (C.M.A.1984). B The relationship between the Confrontation Clause and the exceptions to hearsay rules has been the subject of much debate. Indeed, it is difficult to arrive at a clear approach to the problem which is consistent with necessities of the fact-finding process, the principles of due process, and various Supreme Court decisions since 1965. The Clause states: “In all criminal prosecutions, the accused shall enjoy the right ... to be confronted with the witnesses against him.” U.S. Const, amend. VI. A literal reading of this language suggests that all hearsay must be excluded if the declarant is unavailable. Such a reading would thus suggest that many, if not most, hearsay exceptions are unconstitutional in criminal cases. The Supreme Court has, however, rejected such an interpretation as “unintended and too extreme.” Ohio v. Roberts, 448 U.S. 56, 63, 100 S.Ct. 2531, 2537, 65 L.Ed.2d 597 (1980). In California v. Green, 399 U.S. 149, 155, 90 S.Ct. 1930, 1933, 26 L.Ed.2d 489, 495 (1970), the Court stated that although the Sixth Amendment Confrontation Clause and evidentiary rules regarding hearsay protect similar values, the two are" }, { "docid": "14951821", "title": "", "text": "victim would be shocked if she realized that she was having sex with Hawks, a black man. The clear inference of those statements is that the victim did not consent because she was incapable of consenting. The question is when did she become so incapable. Also, it is possible that the accused could have been honestly and reasonably mistaken as to the victim’s consent. The only person, other than the accused and the victim who could enlighten the Court on this question was Pasetti. However, he was absent and not subject to cross-examination. Ill We are not the first Court to struggle with the interface of the admissibility of a statement against interest and the Confrontation Clause. I find myself in total agreement with our sister Navy-Marine Court of Military Review that any restrictions on the right to confrontation should only be based on decisions emanating from the Supreme Court. United States v. Garrett, 16 M.J. 941 (N.M.C.M.R.1983), citing United States v. McConnico, 7 M.J. 302 (C.M.A.1979). See also, United States v. Coachman, 727 F.2d 1293 (D.C.Cir.1984). It seems an anomaly that when a witness testifies on direct examination and then asserts his rights against self-incrimination to refuse to answer questions on cross-examination, the testimony will be stricken if not on a collateral matter, United States v. Hill, 18 M.J. 459 (C.M.A.1984); and yet, we would allow similar testimony to be received into evidence, without cross-examination through a third party. Permitting a rambling narrative by a boisterous, very drunk declarant, which is somewhat self serving, to stand unchallenged by cross-examination, and allowing adverse critical inferences to be drawn therefrom, leads me to question whether the accused received due process of law. For all the above reasons, I am convinced that the statement was improperly admitted into evidence, and that such action was to the prejudice of the accused. I would set aside the findings and the sentence and order a rehearing. When Airman Gomez was called to testify as to what Pasetti had told him regarding the case before the Court, the defense objected. The following colloquy took place: TC:" }, { "docid": "8231201", "title": "", "text": "Opinion of the Court COX, Judge: Appellant was tried by general court-martial composed of a military judge alone on December 9-10, 1983, at Royal Air Force Alconbury, England. Contrary to his pleas, he was found guilty of rape, in violation of Article 120, Uniform Code of Military Justice, 10 U.S.C. § 920. He was sentenced to a dishonorable discharge, 11 months’ confinement, total forfeitures, and reduction to E-l. The convening authority reduced the dishonorable discharge to a bad-conduct discharge and then suspended the discharge but otherwise approved the adjudged sentence. The Court of Military Review affirmed. 19 M.J. 595 (1984). This Court granted review on the following issues: I WHETHER THE MILITARY JUDGE ERRED TO THE SUBSTANTIAL PREJUDICE OF THE ACCUSED IN ALLOWING HEARSAY TESTIMONY FROM AIRMAN GOMEZ REGARDING STATEMENTS MADE TO HIM BY AIRMAN PASETTI, THE ACCUSED’S ROOMMATE. II WHETHER THE MILITARY JUDGE ERRED TO THE SUBSTANTIAL PREJUDICE OF THE ACCUSED BY ADMITTING IN EVIDENCE THE ACCUSED’S TESTIMONY FROM THE CASE OF UNITED STATES V. PASETTI, AND THE ACCUSED’S PRIOR WRITTEN STATEMENT WITHOUT ADEQUATE CORROBORATION. This case arose out of a card game in appellant’s barracks room. Appellant, Airman Lawrence Pasetti, Airman Otis Hawks, the alleged victim, and another female were playing a game where the loser of each hand of cards was required to take a drink of bourbon. A stipulation of fact stated that the group had drunk more than a quart of bourbon during the card game. The victim testified that she remembered the end of the game; she remembered waking up in a bed with an airman named Hawks; she remembered having intercourse with Hawks; and she felt that she had had intercourse with Pasetti, but she could not recall having had intercourse with appellant. To prove the charged offense, the prosecution called Airman Vincent Gomez, who testified over defense objection to certain statements by Pasetti, Hawks, and appellant around the time of the alleged offense. He testified that he was in the hallway outside the barracks room where the alleged crime took place. He said that Pasetti said, “Hey, Gomez, do you want an" } ]

[ { "docid": "23268498", "title": "", "text": "upon Central Hudson to challenge the Court of Appeals’ decision, Reply Brief for Petitioners 9, n. 7, and we therefore do not consider whether the Government’s interest could be considered substantial for purposes of the Central Hudson test. The question is whether the government may underwrite and sponsor speech with a certain viewpoint using special subsidies exacted from a designated class of persons, some of whom object to the idea being advanced. Just as the First Amendment may prevent the government from prohibiting speech, the Amendment may prevent the government from compelling individuals to express certain views, see Wooley v. Maynard, 430 U. S. 705, 714 (1977); West Virginia Bd. of Ed. v. Barnette, 319 U. S. 624 (1943), or from compelling certain individuals to pay subsidies for speech to which they object. See Abood v. Detroit Bd. of Ed., 431 U. S. 209 (1977); Keller v. State Bar of Cal, 496 U. S. 1 (1990); see also Glickman, supra, at 469, n. 13. Our precedents concerning compelled contributions to speech provide the beginning point for our analysis. The fact that the speech is in aid of a commercial purpose does not deprive respondent of all First Amendment protection, as held in the cases already cited. The subject matter of the speech may be of interest to but a small segment of the population; yet those whose business and livelihood depend in some way upon the product involved no doubt deem First Amendment protection to be just as important for them as it is for other discrete, little noticed groups in a society which values the freedom resulting from speech in all its diverse parts. First Amendment concerns apply here because of the requirement that producers subsidize speech with which they disagree. “[T]he general rule is that the speaker and the audience, not the government, assess the value of the information presented.” Edenfield, supra, at 767. There are some instances in which compelled subsidies for speech contradict that constitutional principle. Here the disagreement could be seen as minor: Respondent wants to convey the message that its brand of mushrooms is" } ]

[ { "docid": "22493505", "title": "", "text": "man to furnish contributions of money for the propagation of opinions which he disbelieves and abhor[s] is sinful and tyrannical.\" A Bill for Establishing Religious Freedom, in 2 Papers of Thomas Jefferson 545 (J. Boyd ed. 1950) (emphasis deleted and footnote omitted); see also Hudson, 475 U.S., at 305, n. 15, 106 S.Ct. 1066. We have therefore recognized that a \" 'significant impingement on First Amendment rights' \" occurs when public employees are required to provide financial support for a union that \"takes many positions during collective bargaining that have powerful political and civic consequences.\" Knox, supra, at 310-311, 132 S.Ct. 2277 (quoting Ellis v. Railway Clerks, 466 U.S. 435, 455, 104 S.Ct. 1883, 80 L.Ed.2d 428 (1984) ). Because the compelled subsidization of private speech seriously impinges on First Amendment rights, it cannot be casually allowed. Our free speech cases have identified \"levels of scrutiny\" to be applied in different contexts, and in three recent cases, we have considered the standard that should be used in judging the constitutionality of agency fees. See Knox, supra ; Harris, supra ; Friedrichs v. California Teachers Assn., 578 U.S. ----, 136 S.Ct. 1083, 194 L.Ed.2d 255 (2016) (per curiam ) (affirming decision below by equally divided Court). In Knox, the first of these cases, we found it sufficient to hold that the conduct in question was unconstitutional under even the test used for the compulsory subsidization of commercial speech. 567 U.S., at 309-310, 321-322, 132 S.Ct. 2277. Even though commercial speech has been thought to enjoy a lesser degree of protection, see, e.g., Central Hudson Gas & Elec. Corp. v. Public Serv. Comm'n of N. Y., 447 U.S. 557, 562-563, 100 S.Ct. 2343, 65 L.Ed.2d 341 (1980), prior precedent in that area, specifically United Foods, supra, had applied what we characterized as \"exacting\" scrutiny, Knox, 567 U.S., at 310, 132 S.Ct. 2277, a less demanding test than the \"strict\" scrutiny that might be thought to apply outside the commercial sphere. Under \"exacting\" scrutiny, we noted, a compelled subsidy must \"serve a compelling state interest that cannot be achieved through means significantly less" }, { "docid": "16261391", "title": "", "text": "Virginia State Bd. of Educ. v. Barnette, 319 U.S. 624, 633, 63 S.Ct. 1178, 1183, 87 L.Ed. 1628 (1943). It also may be violated when the government compels an individual to subsidize “political and ideological purposes,” Lyng v. International Union, United Auto Workers, 485 U.S. 360, 369, 108 S.Ct. 1184, 1191, 99 L.Ed.2d 380 (1988), with which she disagrees: Chicago Teachers Union Local No. 1 v. Hudson, 475 U.S. 292, 301, 106 S.Ct. 1066, 1073, 89 L.Ed.2d 232 (1986); Abood v. Detroit Bd. of Educ., 431 U.S. 209, 234-35, 97 S.Ct. 1782, 1799, 52 L.Ed.2d 261 (1977). The government does not, however, violate the First Amendment whenever it forces an individual to subsidize speech. Any such position would implicate many state subsidies for public universities, for free speech is at the heart of teaching and universities by definition support speech — often extremely controversial speech. See Widmar, 454 U.S. at 278-79, 102 S.Ct. at 279 (Stevens, J., concurring). Rather, the First Amendment prohibits the government from forcing an individual to contribute to the ideological expression of other private citizens for the purpose of advancing those citizens’ ideological biases rather than substantial public interests. In Abood, for instance, the Court upheld state requirements that teachers pay a fee to the union for the purpose of supporting collective bargaining, even though such coerced contribution would have “an impact on [the dissenting teachers’] First Amendment interests.” Abood, 431 U.S. at 222, 97 S.Ct. at 1793. The Court reasoned that the interference with the employee’s freedom to associate was constitutionally justified by “the legislative assessment of the important contribution of the union shop to the system of labor relations established by Congress.” Id. The lesson of Abood, therefore, is that the government may compel an individual to subsidize non-governmental speech when such compulsion accomplishes the “government’s vital policy interest.” Lehnert v. Ferris Faculty Ass’n., — U.S.-,-, 111 S.Ct. 1950, 1959, 114 L.Ed.2d 572 (1991). See Carroll v. Blinken, 957 F.2d 991, 997 (2d Cir.1992) (citing cases). The question here is whether a University-sponsored newspaper advances an important educational purpose in a narrowly tailored manner." }, { "docid": "22493503", "title": "", "text": "L.Ed. 1628 (1943) (emphasis added). Compelling individuals to mouth support for views they find objectionable violates that cardinal constitutional command, and in most contexts, any such effort would be universally condemned. Suppose, for example, that the State of Illinois required all residents to sign a document expressing support for a particular set of positions on controversial public issues-say, the platform of one of the major political parties. No one, we trust, would seriously argue that the First Amendment permits this. Perhaps because such compulsion so plainly violates the Constitution, most of our free speech cases have involved restrictions on what can be said, rather than laws compelling speech. But measures compelling speech are at least as threatening. Free speech serves many ends. It is essential to our democratic form of government, see, e.g., Garrison v. Louisiana, 379 U.S. 64, 74-75, 85 S.Ct. 209, 13 L.Ed.2d 125 (1964), and it furthers the search for truth, see, e.g., Thornhill v. Alabama, 310 U.S. 88, 95, 60 S.Ct. 736, 84 L.Ed. 1093 (1940). Whenever the Federal Government or a State prevents individuals from saying what they think on important matters or compels them to voice ideas with which they disagree, it undermines these ends. When speech is compelled, however, additional damage is done. In that situation, individuals are coerced into betraying their convictions. Forcing free and independent individuals to endorse ideas they find objectionable is always demeaning, and for this reason, one of our landmark free speech cases said that a law commanding \"involuntary affirmation\" of objected-to beliefs would require \"even more immediate and urgent grounds\" than a law demanding silence. Barnette, supra, at 633, 63 S.Ct. 1178 ; see also Riley, supra, at 796-797, 108 S.Ct. 2667 (rejecting \"deferential test\" for compelled speech claims). Compelling a person to subsidize the speech of other private speakers raises similar First Amendment concerns. Knox, supra, at 309, 132 S.Ct. 2277 ; United States v. United Foods, Inc., 533 U.S. 405, 410, 121 S.Ct. 2334, 150 L.Ed.2d 438 (2001) ; Abood, supra, at 222, 234-235, 97 S.Ct. 1782. As Jefferson famously put it, \"to compel a" }, { "docid": "5553683", "title": "", "text": "1428, 1435, 51 L.Ed.2d 752 (1977): A system which secures the right to proselytize religious, political, and ideological causes must also guarantee the concomitant right to decline to foster such concepts. The right to speak and the right to refrain from speaking are complementary components of the broader concept of ‘individual freedom of mind.’ Similarly, the First Amendment protects the rights to contribute to political and other causes (Buckley v. Valeo, supra, 424 U.S. at 16, 22, 96 S.Ct. 612) as well as the right not to contribute. Abood v. Detroit Board of Education, 431 U.S. 209, 234, 97 S.Ct. 1782, 52 L.Ed.2d 261 (1977). As Thomas Jefferson said, “to compel a man to furnish contributions of money for the propagation of opinions which he disbelieves, is sinful and tyrannical.” I. Brant, James Madison: The Nationalist 354 (1948). The instant statute infringes on these rights and freedoms. It directs that a person, in order to receive a government benefit — the purchase of a rifle at a discount — must join the National Rifle Association, contribute dues to that organization, and pledge loyalty to its political goals. In principle, this law is not substantively distinguishable from such statutes as a West Virginia law which required public school students, including Jehovah’s Witnesses, to pledge allegiance to the American flag (West Virginia Board of Education v. Barnette, 319 U.S. 624, 63 S.Ct. 1178, 87 L.Ed. 1628 (1943)), and a New Hampshire law which prohibited automobile owners from obscuring the state motto “Live Free or Die” from their license plates (Wooley v. Maynard, supra); and such actions as that of the sheriff of Cook County, Illinois, who compelled government employees to pledge political allegiance to the Democratic Party and to contribute to it (Elrod v. Burns, supra). Indeed, it would seem that at least some of the programs involved in those cases (i. e., the requirement of allegiance to the American flag and that of the display of a state motto) represent substantially more compelling governmental interests than membership in the NRA; yet in none of these instances was the significance of the" }, { "docid": "5155538", "title": "", "text": "underlying records, the court was unwilling to grant the plaintiffs access to them itself. The plaintiffs have perfected a timely appeal from the final judgment in which the district court dismissed their complaint. II “[T]o compel a man to furnish contributions of money for the propagation of opinions which he disbelieves, is sinful and tyrannical.” Thus wrote Thomas Jefferson in a passage quoted in I. Brant, James Madison: The Nationalist 354 (1948), and repeated with approval by the Supreme Court in Abood, 431 U.S. at 234 n. 31, 97 S.Ct. at 1799 n. 31, and Hudson, 475 U.S. at 305 n. 15, 106 S.Ct. at 1075 n. 15. Jefferson’s thought is now part and parcel of our First Amendment jurisprudence. For the government to threaten men and women with the loss of their livelihoods if they fail to remit part of their earnings to labor unions for the advancement of social and political causes they do not wish to support is not only sinful and tyrannical, it is á violation of the United States Constitution. See Abood, 431 U.S. at 234, 97 S.Ct. at 1799; Hudson, 475 U.S. at 301-02, 106 S.Ct. at 1073-74. To an extent, the Supreme Court has recognized, the very existence of an agency shop trenches upon the First Amendment interests of bargaining unit employees who oppose unions. See Hudson, 475 U.S. at 309, 106 S.Ct. at 1077 (“the agency shop itself impinges on the nonunion employees’ First Amendment interests”), and Lehnert v. Ferris Faculty Ass’n, .... 500 U.S. 507, 519, 111 S.Ct. 1950, 1959, 114 L.Ed.2d 572 (1991), where the Court spoke of “the burdening of free speech that is inherent in the allowance of an agency or union shop.” But in a constitutional compromise not atypical of the many such compromises that have been struck since the founding of the Republic, the Supreme Court has decided to let all bargaining unit employees be required to bear the cost of collective bargaining activities — thereby denying a “free ride” to non-union employees who might stand to benefit from such activities — while not allowing “compulsory-subsidization" }, { "docid": "4932879", "title": "", "text": "actions are permeated with the “color of law.” We thus hold that the Colegio’s ideological and political activities as previously described herein, are state action within the meaning of 42 U.S.C. § 1983. See Arrow v. Dow, supra; Cf. Dist. of Col. Court of Appeals v. Feldman, supra. Nor do Defendants seriously contest this issue. The gravamen of their opposition, apart from the preliminary questions previously decided by the Court, are concerned with the consequences of this state action, a matter which we will now discuss in detail. The Consequences of the Colegio’s Ideological and/or Political Activities It is well established that it is a violation of an individual’s First and Fourteenth Amendment rights for the state to coerce support of ideological and/or political causes. Abood v. Detroit Board of Education, supra; Arrow v. Dow, supra; Cf. Galda v. Bloustein, 686 F.2d 159 (CA 3, 1982). Whatever else Aboocfs diverse opinions may stand for, the Court was unanimous in holding that the use of mandatorily required fees for ideological and/or political purposes violated the First Amendment interests of persons to be free “to associate for the advancement of ideas, or to refrain from doing so, as [they] see fit.” In fact the Court quoted Thomas Jefferson to the effect that “to compel a man to furnish contributions of money for the propagation of opinions which he disbelieves, is sinful and tyrannical.” 431 U.S. at 234-235, n. 31, 97 S.Ct. at 1799, n. 31. The Abood decision bears further scrutiny. In Abood the Court held that public school teachers could not be compelled to support the political activities of a union to which they were required to belong by virtue of a state law. Abood also held that it was not incumbent upon the dissenting individual to have to object to the disputed activities nor to have to prove how much was spent on these activities by the union. The plurality opinion stated that it favored an internal voluntary plan whereby objectors to legislative activity could obtain a refund of that portion of the dues spent for political purposes, and a" }, { "docid": "22493558", "title": "", "text": "over public spending and debt they have spurred, have given collective-bargaining issues a political valence that Abood did not fully appreciate. 2 Abood is also an \"anomaly\" in our First Amendment jurisprudence, as we recognized in Harris and Knox . Harris, supra, at ----, 134 S.Ct., at 2627 ; Knox, 567 U.S., at 311, 132 S.Ct. 2277. This is not an altogether new observation. In Abood itself, Justice Powell faulted the Court for failing to perform the \" 'exacting scrutiny' \" applied in other cases involving significant impingements on First Amendment rights. 431 U.S., at 259, 97 S.Ct. 1782 ; see id., at 259-260, and n. 14, 97 S.Ct. 1782. Our later cases involving compelled speech and association have also employed exacting scrutiny, if not a more demanding standard. See, e.g., Roberts, 468 U.S., at 623, 104 S.Ct. 3244 ; United Foods, 533 U.S., at 414, 121 S.Ct. 2334. And we have more recently refused, even in agency-fee cases, to extend Abood beyond circumstances where it directly controls. See Knox, supra, at 314, 132 S.Ct. 2277 ; Harris, supra, at ---- - ----, 134 S.Ct., at 2639. Abood particularly sticks out when viewed against our cases holding that public employees generally may not be required to support a political party. See Elrod, 427 U.S. 347, 96 S.Ct. 2673, 49 L.Ed.2d 547 ; Branti, 445 U.S. 507, 100 S.Ct. 1287, 63 L.Ed.2d 574 ; Rutan, 497 U.S. 62, 110 S.Ct. 2729, 111 L.Ed.2d 52 ; O'Hare Truck Service, Inc. v. City of Northlake, 518 U.S. 712, 116 S.Ct. 2353, 135 L.Ed.2d 874 (1996). The Court reached that conclusion despite a \"long tradition\" of political patronage in government. Rutan, supra, at 95, 110 S.Ct. 2729 (Scalia, J., dissenting); see also Elrod, 427 U.S., at 353, 96 S.Ct. 2673 (plurality opinion); id., at 377-378, 96 S.Ct. 2673 (Powell, J., dissenting). It is an odd feature of our First Amendment cases that political patronage has been deemed largely unconstitutional, while forced subsidization of union speech (which has no such pedigree) has been largely permitted. As Justice Powell observed: \"I am at a loss to" }, { "docid": "23674045", "title": "", "text": "who chooses to speak may also decide what not to say” (citations and internal quotation marks omitted)); Wooley v. Maynard, 430 U. S. 705, 714 (1977) (“[T]he right of freedom of thought protected by the First Amendment against state action includes both the right to speak freely and the right to refrain from speaking at all”); West Virginia Bd. of Ed. v. Barnette, 319 U. S. 624, 633 (1943) (“[Involuntary affirmation c[an] be commanded only on even more immediate and urgent grounds than silence”). As a familiar corollary to the principle that what may not be suppressed may not be coerced, we have recognized (thus far, outside the context of commercial speech) that individuals have a First Amendment interest in freedom from compulsion to subsidize speech and other expressive activities undertaken by private and quasi-private organizations. We first considered this issue in Abood v. Detroit Bd. of Ed., 431 U. S. 209 (1977), in addressing the First Amendment claims of dissenting employees subject to an “agency-shop” agreement between their government employer and a union. The agreement required each employee to pay the union a “service fee” equal to the dues required of union members, but limited no one’s right to speak separately and obliged no employee to join the union, personally espouse unionism, or participate in the union in any other way. Id., at 212. Thus, as in this case, the sole imposition upon nonmembers was the assessment to help pay for the union’s activities. And yet, purely financial as the imposition was, we held that the union’s use of dissenters’ service fees for expressive purposes unrelated to collective bargaining violated the First Amendment rights of those employees. In so holding, Abood drew together several lines of First Amendment doctrine; after recognizing the parallels between expression per se and associating for expressive purposes, id., at 233-234, the Court relied on compelled-speech cases such as Barnette, supra, in concluding that just as the government may not (without a compelling reason) prohibit a person from contributing money to propagate ideas, neither may it force an individual to contribute money to support some" }, { "docid": "18832483", "title": "", "text": "collective bargaining. The challenging fee payers and the SBTA may present evidence, orally or by affidavit, at a hearing to be held no later than December 15 — -a month after objections are made. The arbitrator must issue his. award within 30 days of the close of the hearing, and the SBTA must pay the rebate within 20 days of the arbitrator’s decision. Assuming a hearing of roughly a week, the payment date falls sometime in mid-February. Plaintiffs challenge these SBTA procedures under 42 U.S.C. § 1983. They claim the District may not, even temporarily, deduct from their paychecks more than what the union is entitled to receive for collective bargaining activities. Plaintiffs argue that even the temporary retention of funds not allocable to collective bargaining violates their First Amendment right against compelled speech. Discussion I Plaintiffs base their argument on the now well-e,stablished principle that requiring nonmember employees to contribute to the union’s ideological activities runs afoul of the First Amendment. The foundations of this idea are not new: Thomas Jefferson wrote that “ ‘to compel a man to furnish contributions of money for the propagation of [religious] opinions which he disbelieves, is sinful and tyrannical.’ ” Abood, 431 U.S. at 234 n. 31, 97 S.Ct. at 1799 n. 31 (1977) (quoting I. Brant, James Madison: The Nationalist 354 (1948)). As Abood makes clear, this reasoning applies equally to compelled political contributions. 431 U.S. at 234-35, 97 S.Ct. at 1799-1800. Thus, the First Amendment protects people from having to put their money where their mouth isn’t. Recent Supreme Court opinions reaffirm the First Amendment’s ban on compelled subsidies of ideological causes. See, e.g., Keller v. State Bar, 496 U.S. 1, 15, 110 S.Ct. 2228, 2236, 110 L.Ed.2d 1 (1989); Chicago Teachers Union v. Hudson, 475 U.S. 292, 301-04, 106 S.Ct. 1066, 1073-75, 89 L.Ed.2d 232 (1986). However, the Court has stated that union security agreements will not violate this prohibition, provided there are adequate protections for the First Amendment rights at stake.- Id. at 301, 106 S.Ct. at 1073; Ellis v. Brotherhood of Railway Clerks, 466 U.S. 435, 444," }, { "docid": "16496777", "title": "", "text": "state Public Utility Commission requirement that a private utility provide access in its billing envelopes to other views. The plurality explained that a state may not require a utility company to \"associate with speech with which [it] may disagree.” Id. at 15, 106 S.Ct. at 911. These cases proceed from the recognition that compulsion of speech can be equated with suppression of speech because the two are “complementary components of the broader concept of ‘individual freedom of mind.’ ” Wooley, 430 U.S. at 714, 97 S.Ct. at 1435 (quoting Barnette, 319 U.S. at 637, 63 S.Ct. at 1185); see also Riley v. National Fed’n of the Blind, — U.S. -, 108 S.Ct. 2667, 2677, 101 L.Ed.2d 669 (1988) (“ ‘freedom of speech’ [is] a term necessarily comprising the decision of both what to say and what not to say”) (emphasis in original). In Abood, the case most apposite to the facts here, the Court held that although a public employee, as well as a private employee, can be required to contribute to the costs of exclusive union representation despite the employee’s “ideological objections” to the union’s activities, 431 U.S. at 222, 97 S.Ct. at 1792, it was unconstitutional to mandate assessment of funds to finance the union’s political and ideological activities that were extraneous to its collective bargaining duties. Quoting from precedent and from Madison and Jefferson, id. at 234-35 & n. 31, 97 S.Ct. at 1799, n. 31 (“ ‘ “to compel a man to furnish contributions of money for the propagation of opinions which he disbelieves is sinful and tyrannical” ’ ”), the Court found that the principles of the First Amendment “prohibit the appellees from requiring any of the appellants to contribute to the support of an ideological cause he may oppose.” Id. at 235, 97 S.Ct. at 1799. Admittedly, there is a lesser impact on the freedom of conscience and belief which underlay the Bamette-Wooley line of cases where, as here, the compelled speech is of a commercial nature. The Court’s opinions analyzing commercial speech stress, however, that important First Amendment values are at stake even" }, { "docid": "22531767", "title": "", "text": "are not full-fledged public employees, it would be hard to see just where to draw the line, 20 and we therefore confine Abood 's reach to full-fledged state employees.21 IV A Because Abood is not controlling, we must analyze the constitutionality of the payments compelled by Illinois law under generally applicable First Amendment standards. As we explained in Knox, \"[t]he government may not prohibit the dissemination of ideas that it disfavors, nor compel the endorsement of ideas that it approves.\" 567 U.S., at ----, 132 S.Ct., at 2288; see also, e.g., R.A.V. v. St. Paul, 505 U.S. 377, 382, 112 S.Ct. 2538, 120 L.Ed.2d 305 (1992); Riley v. National Federation of Blind of N.C., 487 U.S. 781, 797, 108 S.Ct. 2667, 101 L.Ed.2d 669 (1988)West Virginia Bd. of Ed. v. Barnette, 319 U.S. 624, 63 S.Ct. 1178, 87 L.Ed. 1628 (1943); Wooley v. Maynard, 430 U.S. 705, 713-715, 97 S.Ct. 1428, 51 L.Ed.2d 752 (1977). And \"compelled funding of the speech of other private speakers or groups\" presents the same dangers as compelled speech. Knox, supra, at ----, 132 S.Ct., at 2288. As a result, we explained in Knox that an agency-fee provision imposes \"a 'significant impingement on First Amendment rights,' \" and this cannot be tolerated unless it passes \"exacting First Amendment scrutiny.\" 567 U.S., at ----, 132 S.Ct., at 2289. In Knox, we considered specific features of an agency-shop agreement-allowing a union to impose upon nonmembers a special assessment or dues increase without providing notice and without obtaining the nonmembers' affirmative agreement-and we held that these features could not even satisfy the standard employed in United States v. United Foods, Inc., 533 U.S. 405, 415, 121 S.Ct. 2334, 150 L.Ed.2d 438 (2001), where we struck down a provision that compelled the subsidization of commercial speech. We did not suggest, however, that the compelled speech in Knox was like the commercial speech in United Foods. On the contrary, we observed that \"[t]he subject of the speech at issue [in United Foods ]-promoting the sale of mushrooms-was not one that is likely to stir the passions of many, but the" }, { "docid": "23674044", "title": "", "text": "compelling cognizable speech officially is just as suspect as suppressing it, and is typically subject to the same level of scrutiny. In Riley v. National Federation of Blind of N. C., Inc., 487 U. S. 781 (1988), for example, the State argued that “the First Amendment interest in compelled speech is different [from] the interest in compelled silence,” and ought therefore to merit a more “deferential test.” . Id., at 796. We rejected that argument out of hand: “There is certainly some difference between compelled speech and compelled silence, but in the context of protected speech, the difference is without constitutional significance, for the First Amendment guarantees ‘freedom of speech,’ a term necessarily comprising the decision of both what to say and what not to say.” Id., at 796-797; see also Hurley v. Irish-American Gay, Lesbian and Bisexual Group of Boston, Inc., 515 U. S. 557, 573 (1995) (“Since all speech inherently involves choices of what to say and what to leave unsaid, one important manifestation of the principle of free speech is that one who chooses to speak may also decide what not to say” (citations and internal quotation marks omitted)); Wooley v. Maynard, 430 U. S. 705, 714 (1977) (“[T]he right of freedom of thought protected by the First Amendment against state action includes both the right to speak freely and the right to refrain from speaking at all”); West Virginia Bd. of Ed. v. Barnette, 319 U. S. 624, 633 (1943) (“[Involuntary affirmation c[an] be commanded only on even more immediate and urgent grounds than silence”). As a familiar corollary to the principle that what may not be suppressed may not be coerced, we have recognized (thus far, outside the context of commercial speech) that individuals have a First Amendment interest in freedom from compulsion to subsidize speech and other expressive activities undertaken by private and quasi-private organizations. We first considered this issue in Abood v. Detroit Bd. of Ed., 431 U. S. 209 (1977), in addressing the First Amendment claims of dissenting employees subject to an “agency-shop” agreement between their government employer and a union. The" }, { "docid": "16261390", "title": "", "text": "any newspaper could place its stand. in the area without further approval from the Dean. Because the University regulation provides no opportunity to discriminate among different publications, the Dean’s discretion under the iegulations does not implicate Plain Dealer’s concerns about content discrimination. Plaintiffs’ facial attack on the Dean’s discretion to designate areas for newsstands is without merit. IV. Plaintiffs contend that the University’s funding of the University Star with student fees violated their First Amendment right not to subsidize views with which they disagree. We disagree. It is well-established that the freedom of speech and association protected by the First Amendment includes the freedom to choose “both what to say and what not to say.” Riley v. National Federation for the Blind, 487 U.S. 781, 797, 108 S.Ct. 2667, 2677, 101 L.Ed.2d 669 (1988) (emphasis in original). See also Wooley v. Maynard, 480 U.S. 705, 97 S.Ct. 1428, 51 L.Ed.2d 752 (1977). This right to refrain from speech is violated when the government compels an individual to endorse a belief that she finds repugnant. West Virginia State Bd. of Educ. v. Barnette, 319 U.S. 624, 633, 63 S.Ct. 1178, 1183, 87 L.Ed. 1628 (1943). It also may be violated when the government compels an individual to subsidize “political and ideological purposes,” Lyng v. International Union, United Auto Workers, 485 U.S. 360, 369, 108 S.Ct. 1184, 1191, 99 L.Ed.2d 380 (1988), with which she disagrees: Chicago Teachers Union Local No. 1 v. Hudson, 475 U.S. 292, 301, 106 S.Ct. 1066, 1073, 89 L.Ed.2d 232 (1986); Abood v. Detroit Bd. of Educ., 431 U.S. 209, 234-35, 97 S.Ct. 1782, 1799, 52 L.Ed.2d 261 (1977). The government does not, however, violate the First Amendment whenever it forces an individual to subsidize speech. Any such position would implicate many state subsidies for public universities, for free speech is at the heart of teaching and universities by definition support speech — often extremely controversial speech. See Widmar, 454 U.S. at 278-79, 102 S.Ct. at 279 (Stevens, J., concurring). Rather, the First Amendment prohibits the government from forcing an individual to contribute to the ideological expression" }, { "docid": "16496778", "title": "", "text": "exclusive union representation despite the employee’s “ideological objections” to the union’s activities, 431 U.S. at 222, 97 S.Ct. at 1792, it was unconstitutional to mandate assessment of funds to finance the union’s political and ideological activities that were extraneous to its collective bargaining duties. Quoting from precedent and from Madison and Jefferson, id. at 234-35 & n. 31, 97 S.Ct. at 1799, n. 31 (“ ‘ “to compel a man to furnish contributions of money for the propagation of opinions which he disbelieves is sinful and tyrannical” ’ ”), the Court found that the principles of the First Amendment “prohibit the appellees from requiring any of the appellants to contribute to the support of an ideological cause he may oppose.” Id. at 235, 97 S.Ct. at 1799. Admittedly, there is a lesser impact on the freedom of conscience and belief which underlay the Bamette-Wooley line of cases where, as here, the compelled speech is of a commercial nature. The Court’s opinions analyzing commercial speech stress, however, that important First Amendment values are at stake even in the commercial speech context. Even though the rationale often given for the protection of commercial speech which focuses on the “consumer’s interest in the free flow of commercial information,” Virginia State Bd. of Pharmacy v. Virginia Citizens Consumer Council, Inc., 425 U.S. 748, 763, 96 S.Ct. 1817, 1826, 48 L.Ed.2d 346 (1976), is inapplicable here, this cannot mean that the government is free to compel its citizens to support commercial speech. It can no more compel me to advertise a product on the outer wall of my home than it can compel me to carry a similar sign on the back of my jacket. Similarly, it cannot compel me to contribute my money to permit a private group to perform that function. The fact that, as the government stresses, I may retain my right “to criticize any aspect of the government’s promotional program,” Brief for the Appel-lee at 32, does not alter the unassailable fact that the compulsion to utter or support commercial speech would “force [me] ... to alter [my] speech to conform" }, { "docid": "22493504", "title": "", "text": "a State prevents individuals from saying what they think on important matters or compels them to voice ideas with which they disagree, it undermines these ends. When speech is compelled, however, additional damage is done. In that situation, individuals are coerced into betraying their convictions. Forcing free and independent individuals to endorse ideas they find objectionable is always demeaning, and for this reason, one of our landmark free speech cases said that a law commanding \"involuntary affirmation\" of objected-to beliefs would require \"even more immediate and urgent grounds\" than a law demanding silence. Barnette, supra, at 633, 63 S.Ct. 1178 ; see also Riley, supra, at 796-797, 108 S.Ct. 2667 (rejecting \"deferential test\" for compelled speech claims). Compelling a person to subsidize the speech of other private speakers raises similar First Amendment concerns. Knox, supra, at 309, 132 S.Ct. 2277 ; United States v. United Foods, Inc., 533 U.S. 405, 410, 121 S.Ct. 2334, 150 L.Ed.2d 438 (2001) ; Abood, supra, at 222, 234-235, 97 S.Ct. 1782. As Jefferson famously put it, \"to compel a man to furnish contributions of money for the propagation of opinions which he disbelieves and abhor[s] is sinful and tyrannical.\" A Bill for Establishing Religious Freedom, in 2 Papers of Thomas Jefferson 545 (J. Boyd ed. 1950) (emphasis deleted and footnote omitted); see also Hudson, 475 U.S., at 305, n. 15, 106 S.Ct. 1066. We have therefore recognized that a \" 'significant impingement on First Amendment rights' \" occurs when public employees are required to provide financial support for a union that \"takes many positions during collective bargaining that have powerful political and civic consequences.\" Knox, supra, at 310-311, 132 S.Ct. 2277 (quoting Ellis v. Railway Clerks, 466 U.S. 435, 455, 104 S.Ct. 1883, 80 L.Ed.2d 428 (1984) ). Because the compelled subsidization of private speech seriously impinges on First Amendment rights, it cannot be casually allowed. Our free speech cases have identified \"levels of scrutiny\" to be applied in different contexts, and in three recent cases, we have considered the standard that should be used in judging the constitutionality of agency fees. See Knox," }, { "docid": "3494395", "title": "", "text": "West Virginia Bd. of Ed. v. Barnette, 319 U.S. 624, 63 S.Ct. 1178, 87 L.Ed. 1628 (1943) (prohibiting state from requiring schoolchildren to recite the Pledge of Allegiance while saluting the American flag, on pain of expulsion); Wooley v. Maynard, 430 U.S. 705, 97 S.Ct. 1428, 51 L.Ed.2d 752 (1977) (holding that requiring the plaintiffs to bear the state’s motto, “Live Free or Die,” was impermissible compulsion of expression). The second category of cases is compelled subsidy cases — that is, cases “in which an individual is required by the government to subsidize a message he disagrees with.” Johanns, 125 S.Ct. at 2060. There are two subcategories to the compelled subsidy cases: (a) compelled subsidies to support a private entity’s political message, see Keller v. State Bar of Cal., 496 U.S. 1, 110 S.Ct. 2228, 110 L.Ed.2d 1 (1990); Abood v. Detroit Bd. of Ed., 431 U.S. 209, 97 S.Ct. 1782, 52 L.Ed.2d 261 (1977), and (b) compelled subsidies to support the government’s message. It is in this subcategory — compelled subsidies to support the government’s message — that Johanns fits. Thus, in compelled subsidy cases, the determinative issue is whether the speech is the government’s (which is immune from First Amendment challenge) or a private entity’s speech, which is unconstitutional, see Keller, 496 U.S. 1, 110 S.Ct. 2228, 110 L.Ed.2d 1; Abood, 431 U.S. 209, 97 S.Ct. 1782, 52 L.Ed.2d 261. The reason is simple when one thinks of what the First Amendment harm is in each situation. When there is a compelled subsidy, the harm is being forced to give the government money to pay for someone else’s message. When that message is another private message (despite tangen tial government involvement), the First Amendment is violated. See Kelley 496 U.S. 1, 110 S.Ct. 2228, 110 L.Ed.2d 1; Abood, 431 U.S. 209, 97 S.Ct. 1782, 52 L.Ed.2d 261; see also 5 The Founders’ Constitution, § 37, A Bill for Establishing Religious Freedom, p. 77 (1987), codified in 1786 at Va.Code Ann. § 57-1 (Lexis 2003) (where in 1779, Thomas Jefferson wrote that “to compel a man to furnish contributions" }, { "docid": "14260651", "title": "", "text": "is not feasible to place them at interest, given the transaction costs and unavailability of practical sub-accounting procedures.”). This court concludes, therefore, that plaintiffs have no property interest in the funds subject to the SJC Rule. Their Fifth and Fourteenth Amendment claims, therefore, are without merit. II. Plaintiffs also contend that their First Amendment rights of association and speech are violated, because the Rule generates funds for designee organizations whose activities offend plaintiffs’ political and ideological beliefs. The First Amendment protects against “compelled speech” and “forced association.” For example, “the right of freedom of thought protected by the First Amendment against state action includes both the right to speak freely and the right to refrain from speaking at all.” Wooley v. Maynard, 430 U.S. 705, 714, 97 S.Ct. 1428, 1435, 51 L.Ed.2d 752 (1977) (citing West Virginia State Bd. of Educ. v. Barnette, 319 U.S. 624, 645, 63 S.Ct. 1178, 1188, 87 L.Ed. 1628 (1943) (Murphy, J., concurring)). Similarly, “ ‘to compel a man to furnish contributions of money for the propagation of opinions which he disbelieves, is sinful and tyrannical.’ ” Abood v. Detroit Bd. of Educ., 431 U.S. 209, 234-35 n. 31, 97 S.Ct. 1782, 1799-1800 n. 31, 52 L.Ed.2d 261 (1977) (quoting Thomas Jefferson, in I. Brant, James Madison: The Nationalist 354 (1948)). In order to assess whether plaintiffs state a claim under the doctrines embodied in these and other cases, it is necessary to determine, first, whether plaintiffs allege any compulsion by the mandate of the IOL-TA program and second, whether they allege that the IOLTA program associates them with any “speech.” A. Compulsion The Supreme Court has had occasion to consider, primarily in the context of unions, the First Amendment claims of those who object to compelled membership and dues in an organization. In Railway Employes’ Dep’t v. Hanson, 351 U.S. 225, 236-38, 76 S.Ct. 714, 720-22, 100 L.Ed. 1112 (1956), when faced with the contention that unions forced unwanted ideological and political associations on its members, the Court held that all employees in a bargaining unit could, as a condition of employment, be required" }, { "docid": "19011528", "title": "", "text": "speech doctrine in general, we will turn to its application to mandatory student activity fees. A. Viewpoint Neutrality and Student Activity Fees The First Amendment’s guarantee of freedom of speech includes both the right to speak freely and the right to refrain from speaking at all. Wooley v. Maynard, 430 U.S. 705, 714, 97 S.Ct. 1428, 51 L.Ed.2d 752 (1977); see also Riley v. Nat’l Fed’n of the Blind of N.C., 487 U.S. 781, 796-97, 108 S.Ct. 2667, 101 L.Ed.2d 669 (1988). “If there is any fixed star in our constitutional constellation, it is that no official, high or petty, can prescribe what shall be orthodox in politics, nationalism, religion, or other matters of opinion or force citizens to confess by word or act their faith therein.” W. Va. State Bd. of Educ. v. Barnette, 319 U.S. 624, 642, 63 S.Ct. 1178, 87 L.Ed. 1628 (1943). Consequently, individuals may “hold a point of view different from the majority and ... refuse to foster ... an idea they find morally objectionable.” Wooley, 430 U.S. at 715, 97 S.Ct. 1428. Because an individual should be allowed to believe as he sees fit without coercion from the state, his First Amendment interests are implicated when the state forces him to contribute to the support of an ideological cause he opposes. See Abood v. Detroit Bd. of Educ., 431 U.S. 209, 234-35, 97 S.Ct. 1782, 52 L.Ed.2d 261 (1977). In articulating this right, the Supreme Court has acknowledged Thomas Jefferson’s view that “to compel a man to furnish contributions of money for the propagation of opinions which he disbelieves! ] is sinful and tyrannical.” Id. at 234 n. 31, 97 S.Ct. 1782 (quoting I. Brant, James Madison: The Nationalist 354 (1948)) (internal quotation marks omitted). Accordingly, the Court has held that teachers’ unions and state bar associations, to which members of those professions are required to pay dues, cannot expend objecting members’ dues on ideological activities not “germane” to their purposes. See id. at 235-36, 97 S.Ct. 1782 (teachers’ unions); Keller v. State Bar of Cal., 496 U.S. 1, 13-14, 110 S.Ct. 2228, 110" }, { "docid": "22493501", "title": "", "text": "reasoning). We have therefore refused to extend Abood to situations where it does not squarely control, see Harris, supra, at ---- - ----, 134 S.Ct., at 2638-2639, while leaving for another day the question whether Abood should be overruled, Harris, supra, at ----, n. 19, 134 S.Ct., at 2638, n. 19 ; see Knox, supra, at 310-311, 132 S.Ct. 2277. We now address that question. We first consider whether Abood 's holding is consistent with standard First Amendment principles. A The First Amendment, made applicable to the States by the Fourteenth Amendment, forbids abridgment of the freedom of speech. We have held time and again that freedom of speech \"includes both the right to speak freely and the right to refrain from speaking at all.\" Wooley v. Maynard, 430 U.S. 705, 714, 97 S.Ct. 1428, 51 L.Ed.2d 752 (1977) ; see Riley v. National Federation of Blind of N. C., Inc., 487 U.S. 781, 796-797, 108 S.Ct. 2667, 101 L.Ed.2d 669 (1988) ; Harper & Row, Publishers, Inc. v. Nation Enterprises, 471 U.S. 539, 559, 105 S.Ct. 2218, 85 L.Ed.2d 588 (1985) ; Miami Herald Publishing Co. v. Tornillo, 418 U.S. 241, 256-257, 94 S.Ct. 2831, 41 L.Ed.2d 730 (1974) ; accord, Pacific Gas & Elec. Co. v. Public Util. Comm'n of Cal., 475 U.S. 1, 9, 106 S.Ct. 903, 89 L.Ed.2d 1 (1986) (plurality opinion). The right to eschew association for expressive purposes is likewise protected. Roberts v. United States Jaycees, 468 U.S. 609, 623, 104 S.Ct. 3244, 82 L.Ed.2d 462 (1984) (\"Freedom of association ... plainly presupposes a freedom not to associate\"); see Pacific Gas & Elec., supra, at 12, 106 S.Ct. 903 (\"[F]orced associations that burden protected speech are impermissible\"). As Justice Jackson memorably put it: \"If there is any fixed star in our constitutional constellation, it is that no official, high or petty, can prescribe what shall be orthodox in politics, nationalism, religion, or other matters of opinion or force citizens to confess by word or act their faith therein .\" West Virginia Bd. of Ed. v. Barnette, 319 U.S. 624, 642, 63 S.Ct. 1178, 87" }, { "docid": "18832484", "title": "", "text": "‘to compel a man to furnish contributions of money for the propagation of [religious] opinions which he disbelieves, is sinful and tyrannical.’ ” Abood, 431 U.S. at 234 n. 31, 97 S.Ct. at 1799 n. 31 (1977) (quoting I. Brant, James Madison: The Nationalist 354 (1948)). As Abood makes clear, this reasoning applies equally to compelled political contributions. 431 U.S. at 234-35, 97 S.Ct. at 1799-1800. Thus, the First Amendment protects people from having to put their money where their mouth isn’t. Recent Supreme Court opinions reaffirm the First Amendment’s ban on compelled subsidies of ideological causes. See, e.g., Keller v. State Bar, 496 U.S. 1, 15, 110 S.Ct. 2228, 2236, 110 L.Ed.2d 1 (1989); Chicago Teachers Union v. Hudson, 475 U.S. 292, 301-04, 106 S.Ct. 1066, 1073-75, 89 L.Ed.2d 232 (1986). However, the Court has stated that union security agreements will not violate this prohibition, provided there are adequate protections for the First Amendment rights at stake.- Id. at 301, 106 S.Ct. at 1073; Ellis v. Brotherhood of Railway Clerks, 466 U.S. 435, 444, 104 S.Ct. 1883, 1890, 80 L.Ed.2d 428 (1984). Two basic principles emerge from the cases reviewing agency shop agreements: First, nonmembers have an absolute right not to support speech they disagree with, so the union must not, under any circumstances, be able to use their money for ideological purposes. Abood, 431 U.S. at 235-36, 97 S.Ct. at 1799-1800 (1977); Railway Employees’ Dep’t v. Hanson, 351 U.S. 225, 238, 76 S.Ct. 714, 721, 100 L.Ed. 1112 (1956). Second, nonmembers have a further First Amendment right to a fair, prompt and effective procedure, both for identifying what sums they are required to pay and, if more than that is collected, for obtaining a refund of the excess. Hudson, 475 U.S. at 306-09, 106 S.Ct. at 1075-77. For convenience, we will refer to the first of these as the substantive First Amendment right and to the second as the procedural First Amendment right. A. The Substantive First Amendment Right The Supreme Court in Ellis announced a few of the basic rules for safeguarding ■ nonmembers’ substantive First Amendment" } ]

[ { "docid": "22657527", "title": "", "text": "the questions on which the decision of the cause depends are so unsubstantial as not to need further argument.” S.Ct.R. 16(l)(c); see Page v. United States, 356 F.2d at 339. Although it is difficult to formulate a precise standard, not every case in which appellant files an unimpressive opening brief is appropriate for summary affirmance. Motions to affirm should be confined to appeals obviously controlled by precedent and cases in which the insubstan-tiality is manifest from the face of appellant’s brief. Where the outcome of a case is beyond dispute, a motion for summary disposition is of obvious benefit to all concerned. Similarly, where the outcome is not so clear, such a motion unduly burdens the parties and the court, and ultimately may even delay disposition of the appeal. We will not, therefore, ordinarily entertain a motion to affirm where an extensive review of the record of the district court proceedings is required. Our recent denials of a number of motions to affirm were based on such considerations. In the instant appeal, Hooton was convicted of unlicensed dealing of firearms and was sentenced to three years probation, subject to a number of conditions, including performance of 300 hours of community service. He filed a request that probation be terminated upon completion of the community service. The district court treated the request as a Rule 35 motion for reduction of sentence and denied it. Hooton’s opening brief on appeal is a one-page document in which he requests this Court to reduce his sentence. A Rule 35 motion is essentially a plea for leniency and is addressed to the sound discretion of the district court. See United States v. Kouwenhoven, 602 F.2d 234, 238 (9th Cir.1979). Inasmuch as the district court could have imposed up to five years imprisonment and a $5,000 fine, the denial of Hooton’s request for early termination of probation was not an abuse of discretion. Because the insubstantiality of the appeal appears from the face of appellant’s brief, the applicable law, and a brief review of the district court record, the Government’s motion for summary affirmance is granted." } ]

[ { "docid": "15405831", "title": "", "text": "see id. 8010(a)(1)(D); and the argument sections omitted essential “citations to the authorities, statutes and parts of the record relied on.” Id. 8010(a)(1)(E). In addition, the record Morrissey provided was so inadequate that the BAP was unable to review the multiple questions of fact that Morrissey raised, and it failed to make a showing that two of Morrissey’s arguments had first been raised in the bankruptcy court. While the record included several miscellaneous transcripts, it failed to include the crucial transcript covering his objection to Stuteville’s claim. The defective record thus violated Ninth Cir. BAP Rule 8006-1. In a seven-page memorandum disposition, the BAP detailed Morrissey’s errors and concluded that the “debtor’s massive failure to comply with the rules of briefing and presenting a record on appeal, including his failure to support his arguments with citations to authority, his failure to cite to relevant portions of the record, his citations to portions of the record that were not before the bankruptcy court, and his failure to provide necessary portions of the record, preclude us from reviewing the court’s order.” Morrissey v. Stuteville, No. NC-00-1681-PMaRy, at 6 (9th Cir. BAP Feb. 14, 2002) (memo). The BAP noted, correctly, that the duty of the court is “not [to] develop debtor’s arguments for him, find the legal authority to support those arguments, or guess at what part of the record may be relevant.” Id. at 6-7. Accordingly, citing the gross procedural defects that made review impossible, the BAP summarily affirmed the bankruptcy court’s amended judgment. Id. at 7. Morrissey filed a timely notice of appeal to this court. He continued to struggle, however, with meeting rudimentary procedural and briefing requirements. For example, he filed his opening brief several days late, the font was too small, there was no statement of related cases, the excerpts of record had the wrong color covers, and the certificate of compliance was defective. See Fed. R.App. P. 32. The court granted him leave to file a late corrected opening brief, and he did so. Morrissey’s corrected brief, however, entirely neglected to consider the BAP decision from which he" }, { "docid": "8881697", "title": "", "text": "United States Postal Serv., 833 F.2d 128, 132 (9th Cir.1987)); Fitzsimmons v. Nolden (In re Fitzsim-mons), 920 F.2d 1468, 1472 (9th Cir.1990) (stating that, “in egregious circumstances such as these, not even consideration of alternative sanctions is necessary before dismissal”). In In re Morrissey, for example, the appellant’s brief to the BAP “egregiously violated the requirements of Fed. R. Bankr.P. 8010” by failing to include, inter alia, a statement of appellate jurisdiction, an intelligible statement of the issues presented, a statement of the case, and “citations to the authorities, statutes, and parts of the record relied upon.” In re Morris-sey, 349 F.3d at 1189 (internal quotation marks omitted). The excerpts of record similarly violated Ninth Circuit BAP Rule 8006-1 by failing to include a transcript crucial to the appellant’s claim, making it impossible for the BAP to review “the multiple questions of fact” that the appellant raised. Id. The BAP detailed the numerous failures and summarily affirmed the bankruptcy court in a seven-page memorandum disposition, noting that it was not the court’s duty to “ ‘develop debt- or’s arguments for him, find the legal authority to support those arguments, or guess at what part of the record may be relevant.’ ” Id. (internal quotation omitted). We affirmed the BAP. Id. at 1191. Although the BAP “did not explicitly mention the possibility of alternative sanctions, the inadequacy of the record and the briefing afforded the BAP little choice but to affirm summarily, as the memorandum made clear.” Id. at 1190-91. Here, however, the BAP appeared to be missing only the Foundation’s answer to the complaint and the bankruptcy court order. The Trustee and the Foundation included in their excerpts of record all of the declarations included in the record on appeal to this court and also included the memoranda in support of the motion for summary judgment and the Foundation’s statement of uncontroverted facts. Thus, unlike In re Morrissey, in which “the inadequacy of the record and the briefing afforded the BAP little choice but to affirm summarily,” the record before the BAP appears to include everything needed in order to" }, { "docid": "7812096", "title": "", "text": "not appealed to the Arizona Supreme Court; claims three and four were raised in Swoopes’s supplemental opening brief in the Arizona Supreme Court, but not urged before the Arizona Court of Appeals as required. Claim six was not advanced either on direct appeal or by way of collateral attack. The district court also concluded that Swoopes had no available state remedy for any of his unexhausted claims. Accordingly, the court held that all of Swoopes’s unexhausted claims were procedurally barred under Arizona law and any attempt to exhaust the claims would be futile. The district court then rejected the remaining claim, unduly suggestive pre-trial identification procedures, on the merits. We affirmed the district court in all respects in an unpublished memorandum disposition. See Swoopes v. Sublett, No. 94-16033, 1998 WL 657711 (9th Cir. Sept. 3, 1998). The United States Supreme Court granted Swoopes’ petition for certio-rari, vacated the judgment, and remanded the case to us for further consideration in light of O’Sullivan. See Swoopes v. Sublett, - U.S. -, 119 S.Ct. 2335, 144 L.Ed.2d 233 (1999). II The primary question raised as we apply O’Sullivan to this appeal is whether an Arizona state prisoner is required to seek discretionary post-conviction review with the Arizona Supreme Court in order to exhaust state remedies for purposes of federal habeas. Under the Arizona Constitution, a criminal defendant has “the right to appeal in all cases.” Ariz. Const., art. 2, § 24. By Arizona statute, that right is generally limited to appeal to the Arizona Court of Appeals; there is no right of appeal to the Arizona Supreme Court except in capital cases or when a life sentence is imposed. See Ariz.Rev.Stat. §§ 12-120.21(A)(1); 12-120.24; 13-4031; see also Ariz. R. Crim P. 31. Rather, except in life sentence or capital cases, the Arizona Supreme Court is vested with discretion as to whether a request for appellate review will be entertained. See Ariz. Rev.Stat. § 12-120.24. In O’Sullivan, the Supreme Court held that, in order to satisfy the exhaustion requirement for federal habeas relief, state prisoners must file for discretionary review in a state supreme" }, { "docid": "16624992", "title": "", "text": "MEMORANDUM Federal prisoner Jackson Byrant Bau-gus appeals pro se from the district court’s judgment dismissing his action alleging that defendants violated his due process rights as a result of his car being seized and retained in police custody for over seven years. We have jurisdiction under 28 U.S.C. § 1291. We review de novo the district court’s dismissal for failure to state a claim under 28 U.S.C. §§ 1915A or 1915(e)(2)(B)(ii). Resnick v. Hayes, 213 F.3d 443, 447 (9th Cir.2000); Barren v. Harrington, 152 F.3d 1193, 1194 (9th Cir.1998) (order). We affirm. The district court properly dismissed Baugus’s action as time-barred. See Mont.Code Ann. § 27-2-204(1) (three-year statute of limitations for personal injury claims); Jones v. Blanas, 393 F.3d 918, 927 (9th Cir.2004) (“For actions under 42 U.S.C. § 1983, courts apply the forum state’s statute of limitations for personal injury actions[.]”); see also Wallace v. Kato, 549 U.S. 384, 391, 127 S.Ct. 1091, 166 L.Ed.2d 973 (2007) (“The cause of action accrues even though the full extent of the injury is not then known or predictable.” (citation and internal quotation marks omitted)). Baugus’s remaining contentions, including that the district court improperly denied his motion to proceed in forma pau-peris, are unpersuasive. AFFIRMED. This disposition is not appropriate for publication and is not precedent except as provided by 9th Cir. R. 36-3." }, { "docid": "1569684", "title": "", "text": "court was thus entirely correct to deny Waggoner’s motion for continued representation by a second court-appointed lawyer after the government formally and irrevocably renounced any intention to seek a conviction for capital murder. Ill The district court also properly denied Waggoner’s motion for a new trial based on newly discovered evidence. A defendant who seeks a new trial based on new or newly discovered evidence must show that (1) the evidence is newly discovered; (2) the failure to discover the evidence is not attributable to a lack of diligence by the defendant; (3) the evidence is material to the issues at trial; (4) the evidence is neither cumulative nor impeaching; and (5) the evidence indicates that a new trial would probably result in an acquittal. See United States v. Jackson, 209 F.3d 1103, 1106 (9th Cir.2000); United States v. Sarno, 73 F.3d 1470, 1505-07 (9th Cir.1995). The evidence cited by Waggoner in support of his new trial motion was cumulative, impeachment-related, or both. See id. None of the tendered evidence was of such a character that it indicated that a new trial probably would result in an acquittal. Id. Accordingly, we affirm the district court’s denial of Waggoner’s new trial motion. AFFIRMED. . Taylor’s appeal was resolved in a separate opinion and memorandum disposition. See United States v. Taylor, 322 F.3d 1209 (9th Cir.2003); United States v. Taylor, 59 Fed.Appx. 960, 2003 WL 1459140 (9th Cir.2003). . The Fourth Circuit reached a contrary conclusion in Boone. We respectfully disagree with its conclusion for the reasons stated. In addition, Boone was predicated on the Fourth Circuit precedent of United States v. Watson, 496 F.2d 1125 (4th Cir.1973), a case we expressly declined to follow in Dufur. Dufur, 648 F.2d at 514-515. . We do not reach Waggoner's contention, raised for the first time in oral argument, that Waggoner had a Sixth Amendment right to a second court-appointed counsel. See Balser v. Dept. of Justice, 327 F.3d 903, 911 (9th Cir.2003) (noting that issues not raised in the opening brief are typically deemed waived). . Waggoner argues that this facet of his" }, { "docid": "21275338", "title": "", "text": "American youths, the district court made the identical finding that the Male court found was clearly erroneous. Male, 492 F.3d at 1048-49. Additionally, in TJ.S.’s transfer order, the district court made the same finding regarding the availability of treatment programs at adult facilities that the district court made in J.C.D.’s appeal and that the Male court did not hold to be clear error but did find was “not based on facts in the record.” Id. We hold that these errors were prejudicial and sufficient to constitute abuse of discretion. We find no merit in T.J.S.’s other arguments on appeal. His due process and Apprendi claims are barred by the law of the case doctrine and no exceptions are applicable with respect to those claims, which, in any case, were rightly decided in the first appeal. Moreover, the district court properly interpreted and applied the prior panel’s remand order and did not abuse its discretion in assuming TJ.S.’s guilt. See Juvenile, 451 F.3d at 576. Accordingly, the district court’s transfer orders with respect to both defendants J.C.D. and T.J.S. are hereby VACATED and their cases REMANDED for further proceedings. This panel will retain jurisdiction over any future appellate proceedings in this matter. VACATED and REMANDED. This disposition is not appropriate for publication and is not precedent except as provided by 9th Cir. R. 36-3. . Those circumstances are: \"where: 1) the first decision was clearly erroneous; 2) an intervening change in the law has occurred; 3) the evidence on remand is substantially different; 4) other changed circumstances exist; or 5) a manifest injustice would otherwise result.” United States v. Alexander, 106 F.3d 874, 876 (9th Cir.1997). . Specifically, the district court in the Male case and in T.J.S.’s appeal found that the defendants’ \"social background in many ways is not markedly different from that of hundreds of other youngsters who grow up on Montana's Native American reservations, and who never resort to violent and destructive behavior of the sort disclosed by the record in this case.” See id. at 1049 n. 2." }, { "docid": "22077920", "title": "", "text": "see Immigration Court of Chicago Local Operating Procedure 2 (“All proposed exhibits and briefs shall be received in the Immigration Court of Chicago no later than ten (10) calendar days prior to the scheduled Individual Calendar hearing unless otherwise authorized by the Immigration Judge”), was not certified, see 8 C.F.R. § 287.6, and an extra copy of the translation was not provided for the government, the IJ excluded it from evidence. At the hearing, however, Georgis’s lawyer explained that he did not submit the letter earlier because he had just received it from Ethiopia and that time constraints prevented him from obtaining an extra copy of the translation for the government’s lawyer. With no objection from the government, the IJ accepted the letter into the record for identification purposes only and labeled it “Exhibit 4.” In June 2002 a single Member of the BIA determined that there was no reasonable possibility that the IJ’s decision was incorrect and issued a “streamlined” order summarily affirming the decision. See 8 C.F.R. § 1008.1(a)(7). Georgis filed a timely petition for review in this court. II. Discussion A. BIA’s Streamlined Review Procedure Georgis contends that the BIA abdicated its responsibility to review the IJ’s ruling when it employed its streamlining procedure in her case. See 8 C.F.R. § 1003.1(a)(7). This regulation provides that a single Member of the BIA may affirm, without opinion, the results of an IJ’s decision if the Member determines: (1) that the result reached in the decision under review was correct; (2) that any errors in the decision under review were harmless or nonmaterial; and (3) that (A) the issue on appeal is squarely controlled by existing Board or federal court precedent to a novel fact situation; or (B) the factual and legal questions raised on appeal are so insubstantial that three-Member review is not warranted. Id. If a case is streamlined, the IJ’s decision becomes that of the BIA for purposes of judicial review. Cf. Begzatowski v. INS, 278 F.3d 665, 670 (7th Cir.2002) (court of appeals does not directly review decisions of the IJ, except in cases where" }, { "docid": "22134939", "title": "", "text": "KOZINSKI, Circuit Judge. Appellant’s opening brief cites Rice v. Chater, No. 95-35604, 1996 WL 583605 (9th Cir. Oct.9, 1996). Rice is an unpub lished disposition, not reported in the Federal Reporter except as a one-line entry in a long table of cases. See Decisions Without Published Opinions, 98 F.3d 1345, 1346 tbl. (9th Cir.1996). The full text of the disposition can be obtained from our clerk’s office, and is available on Westlaw® and LEXIS®. However, it is marked with the following notice: “This disposition is not appropriate for publication and may not be cited to or by the courts of this circuit except as provided by 9th Cir.R. 36-3.” Our local rules are to the same effect: “Unpublished dispositions and orders of this Court are not binding precedent ... [and generally] may not be cited to or by the courts of this circuit .... ” 9th Cir. R. 36-3. We ordered counsel to show cause as to why he should not be disciplined for violating Ninth Circuit Rule 36-3. Counsel responds by arguing that Rule 36-3 may be unconstitutional. He relies on the Eighth Circuit’s opinion in Anastasoff v. United States, 223 F.3d 898, vacated as moot on reh’g en banc, 235 F.3d 1054 (8th Cir.2000). Anastasoff, while vacated, continues to have persuasive force. See, e.g., Williams v. Dallas Area Rapid Transit, 256 F.3d 260 (5th Cir.2001) (Smith, J., dissenting from denial of reh’g en banc). It may seduce members of our bar into violating our Rule 36-3 under the mistaken impression that it is unconstitutional. We write to lay these speculations to rest. I A. Anastasoff held that Eighth Circuit Rule 28A(i), which provides that unpublished dispositions are not precedential— and hence not binding on future panels of that court — violates Article III of the Constitution. See 223 F.3d at 899. According to Anastasoff, exercise of the “judicial Power” precludes federal courts from making rulings that are not binding in future eases. Or, to put it differently, federal judges are not merely required to follow the law, they are also required to make law in every case. To" }, { "docid": "1569685", "title": "", "text": "that it indicated that a new trial probably would result in an acquittal. Id. Accordingly, we affirm the district court’s denial of Waggoner’s new trial motion. AFFIRMED. . Taylor’s appeal was resolved in a separate opinion and memorandum disposition. See United States v. Taylor, 322 F.3d 1209 (9th Cir.2003); United States v. Taylor, 59 Fed.Appx. 960, 2003 WL 1459140 (9th Cir.2003). . The Fourth Circuit reached a contrary conclusion in Boone. We respectfully disagree with its conclusion for the reasons stated. In addition, Boone was predicated on the Fourth Circuit precedent of United States v. Watson, 496 F.2d 1125 (4th Cir.1973), a case we expressly declined to follow in Dufur. Dufur, 648 F.2d at 514-515. . We do not reach Waggoner's contention, raised for the first time in oral argument, that Waggoner had a Sixth Amendment right to a second court-appointed counsel. See Balser v. Dept. of Justice, 327 F.3d 903, 911 (9th Cir.2003) (noting that issues not raised in the opening brief are typically deemed waived). . Waggoner argues that this facet of his appeal should be reviewed under the test applicable to claims of negligent prosecutorial non-disclosure of exculpatory evidence. This negligent non-disclosure test requires a \"new trial whenever the non-disclosed evidence might reasonably have affected the jury's judgment on some material point.” United States v. Butler, 567 F.2d 885, 890 (9th Cir.1978). A review of Waggoner's challenge under this test does not alter the result of our analysis. We conclude that Waggoner is not entitled to a new trial because the evidence would not have affected the jury's judgment on any material point. .Waggoner also argues that the district court should have granted a new trial because of Brady violations by the government. See Brady v. Maryland, 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963). A careful review indicates that the evidence Waggoner characterizes as Brady material was either \"marginal, ambiguous, cumulative, inadmissible, unreliable, inculpatory, irrelevant, or of negligible probative worth.” Sarno, 73 F.3d at 1506. Thus, consideration of this evidence does not undermine our confidence in the jury verdict. Id." }, { "docid": "20730261", "title": "", "text": "by granting summary judgment on their claim for false advertising under section 17500 of the California Businesses & Practices Code because proof of bad faith prevents federal preemption of a state false advertising claim. We review this issue de novo. Dreiling, 578 F.3d at 1000. The district court did not grant summary judgment on the state false advertising claim because it was preempted. Rather, the court granted summary judgment because the “substantially congruent” state claim failed on the merits. Cleary v. News Corp., 30 F.3d 1255, 1262-63 (9th Cir.1994). We affirm for the reasons explained above in connection with the federal claim. 3. Plaintiffs also contend that the district court erred by denying their motion to strike the declaration of a witness. We review for abuse of discretion. Boyd v. City of San Francisco, 576 F.3d 938, 943 (9th Cir.2009). We affirm the district court’s ruling because Plaintiffs have not demonstrated that it caused them any prejudice. See id. at 950. The district court stated specifically that it was unlikely to reach the issues addressed by the declaration and, indeed, its summary judgment order did not discuss those arguments. AFFIRMED. This disposition is not appropriate for publication and is not precedent except as provided by 9th Cir. R. 36-3." }, { "docid": "15405835", "title": "", "text": "of discretion standard of review. Doing so would maintain consistency in the standard of review applied to district court and BAP sanctions decisions on appeals from the bankruptcy courts. It would also strengthen the BAP’s authority to police the bankruptcy bar. The alternative, in contrast, would effectively enable litigants to bypass the intermediate level of review that the BAP affords. Accordingly, we hold that we review for abuse of discretion the BAP’s imposition of sanctions for non-compliance with non-jurisdictional procedural requirements. Where, under that standard, summary af-firmance is an appropriate sanction by the BAP, we do not reach the merits of the bankruptcy court’s ruling. Ill Morrissey’s egregious violations of Fed. R. Bankr.P. 8010 and Ninth Cir. BAP Rule 8006-1, as we have described above, plainly invited a response by the BAP. We must decide, therefore, whether the BAP abused its discretion in deciding that these violations warranted summary affirmance. When imposing “sanctions for non-jurisdictional, procedural defaults and deficiencies in the management of litigation, the selection of the sanction to be imposed must take into consideration the impact of the sanction and the alternatives available to achieve assessment of the penalties in conformity with fault.” Hill, 775 F.2d at 1387. While recognizing that dismissal may be appropriate in some cases, the court shows particular concern for “inappropriately punish[ing] the appellant for the neglect of his counsel.” Donovan, 871 F.2d at 808. The BAP filed a lengthy memorandum detailing the appellant’s errors and articulating the logic underlying its decision to affirm on the merits. Morrissey did not challenge these determinations on appeal, nor did he seek reconsideration of the BAP decision. As the memorandum emphasized, the BAP was required only to consider those portions of the transcript included in the record. Ninth Cir. BAP R. 8006-1. While the BAP did not explicitly mention the possibility of alternative sanctions, the inadequacy of the record and the briefing afforded the BAP little choice but to affirm summarily, as the memorandum made clear. See Malone v. United States Postal Serv., 833 F.2d 128, 132 (9th Cir.1987) (noting that in “egregious circumstances” it is unnecessary" }, { "docid": "15405832", "title": "", "text": "reviewing the court’s order.” Morrissey v. Stuteville, No. NC-00-1681-PMaRy, at 6 (9th Cir. BAP Feb. 14, 2002) (memo). The BAP noted, correctly, that the duty of the court is “not [to] develop debtor’s arguments for him, find the legal authority to support those arguments, or guess at what part of the record may be relevant.” Id. at 6-7. Accordingly, citing the gross procedural defects that made review impossible, the BAP summarily affirmed the bankruptcy court’s amended judgment. Id. at 7. Morrissey filed a timely notice of appeal to this court. He continued to struggle, however, with meeting rudimentary procedural and briefing requirements. For example, he filed his opening brief several days late, the font was too small, there was no statement of related cases, the excerpts of record had the wrong color covers, and the certificate of compliance was defective. See Fed. R.App. P. 32. The court granted him leave to file a late corrected opening brief, and he did so. Morrissey’s corrected brief, however, entirely neglected to consider the BAP decision from which he is appealing. Framed as an appeal from the bankruptcy court, it dealt solely with the bankruptcy court’s judgment on his objection to Stuteville’s claim and did not address the BAP’s subsequent adjudication. II The BAP’s affirmance of the bankruptcy court’s amended judgment was premised on Morrissey’s egregious violations of the applicable rules, and in that respect was tantamount to the imposition of sanctions. The standard of review applicable to a BAP decision to impose sanctions for non-compliance with non-jurisdic tional procedural requirements appears to be a question of first impression. It is true that we generally review decisions of the BAP de novo, e.g., Carrillo v. Su (In re Su), 290 F.3d 1140, 1142 (9th Cir.2002), as we do most district court decisions on appeals from the bankruptcy courts, see Saxman v. Educ. Credit Mgmt. Corp. (In re Saxman), 325 F.3d 1168, 1172 (9th Cir.2003), and we generally independently review bankruptcy courts’ rulings when appealed from the BAP. Su, 290 F.3d at 1142. We have, however, recognized that greater deference may be appropriate when we" }, { "docid": "21151100", "title": "", "text": "(court summarily reversed district court’s grant of injunction because time was of the essence and because one party’s position was clearly correct as a matter of law); National Labor Relations Bd. v. Playskool, Inc., 431 F.2d 518, 519-520 (7th Cir.1970) (court granted motion for summary affirmance because one party’s contentions were found so unsubstantial as to render the appeal frivolous and because time was of the essence); United States v. Dura-Lux Int’l Corp., 529 F.2d 659, 660-662 (8th Cir.1976) (court sua sponte concluded that summary disposition was appropriate because the questions presented did not require further argument and because one party’s contentions were without merit); Leigh v. Gaffney, 432 F.2d 923 (10th Cir.1970) (court granted motion for summary affirmance because question presented was so unsubstantial as to not warrant further argument); Goldstein v. Riggs Nat'l Bank, 459 F.2d 1161, 1163 n. 2 (D.C.Cir.1972) (court dispensed with additional briefing and argument because the motion for summary affirmance demonstrated “that the merits of the claim are so clear as to warrant expeditious action”). The United States’ motion for summary affirmance in this case presents us with an opportunity to more fully explicate our standard for summary affirmance under circumstances like those present here. We hold that summary disposition is appropriate, inter alia, when the position of one party is so clearly correct as a matter of law that no substantial question regarding the outcome of the appeal exists. See, e.g., Groendyke, 406 F.2d at 1162. In the present case, it is clear that Joshua’s complaint did not identify any substantive right, founded upon either a money mandating statute or the Constitution, which might form the basis for his claim. Further, to the extent that Joshua is seeking it, the Court of Federal Claims does not have jurisdiction to review the decisions of district courts or the clerks of district courts relating to proceedings before those courts. Accordingly, IT IS ORDERED THAT: (1) The United States’ motion for summary affirmance is granted. (2) Joshua’s motion for sanctions is denied. (3) Each side shall bear its own costs." }, { "docid": "22928368", "title": "", "text": "basis charged. The order of removal must accordingly be vacated. Given this disposition, there is no need to consider Huerta’s due process challenges to how the IJ conducted her removal proceedings or to how the BIA decided summarily to affirm the result reached by the immigration judge. PETITION GRANTED; ORDER OF REMOVAL VACATED. . 8 C.F.R. § 3.1(a)(7)(ii) allows a single Board member to enter a Board order affirming the result of the immigration judges's decision if the result reached is correct; any errors are harmless or nonmaterial; and either the issue on appeal is squarely controlled by Board or federal circuit court precedent and does not involve application of precedent to a novel fact situation, or the factual and legal questions raised are so insubstantial that three-member review is not warranted. The Board's order cannot have reasons. In these circumstances, the IJ’s decision is the final agency decision for purposes of judicial review. . We ordered Huerta's appeal consolidated for purposes of oral argument with Cedano-Viera v. Ashcroft, No. 02-70454, and Ramirez v. INS, No. 02-71835, because they raise similar issues. .A.R.S. § 13-1802 provides: A. A person commits theft if, without lawful authority, the person knowingly: 1. Controls property of another with the intent to deprive the other person of such property; or 2. Converts for an unauthorized term or use services or property of another entrusted to the defendant or placed in the defendant’s possession for a limited, authorized term or use; or 3. Obtains services or property of another by means of any material misrepresentation with intent to deprive the other person of such property or services; or 4. Comes into control of lost, mislaid or misdelivered property of another under circumstances providing means of inquiry as to the true owner and appropriates such property to the person’s own or another's use without reasonable efforts to notify the true owner; or 5. Controls property of another knowing or having reason to know that the property was stolen; or 6. Obtains services known to the defendant to be available only for compensation without paying or an agreement" }, { "docid": "22928367", "title": "", "text": "the generic definition.” Coronao-Sanchez, 291 F.3d at 1212. We need not decide whether a brief may ever be an acceptable source of evidence under the modified categorical approach because, even if the facts as represented in Huerta’s brief are taken as a true account of what she did, it is not clear that these are the elements to which she pled guilty. This leaves just the bare facts themselves and, as we emphasized in Corona-Sanchez, “ ‘the Supreme Court in Taylor and this circuit in our precedents have foreclosed any approach that considers the underlying facts of prior convictions to determine whether a defendant was convicted by a jury or pleaded guilty to a predicate offense’ .... ” Id. at 1213(quoting United States v. Franklin, 235 F.3d 1165, 1171 (9th Cir.2000)). We conclude that Huerta’s conviction for possession of a stolen vehicle does not qualify as a “theft offense” under either the categorical approach or the modified categorical approach. Therefore, it is not an aggravated felony, and Huerta is not subject to removal on the basis charged. The order of removal must accordingly be vacated. Given this disposition, there is no need to consider Huerta’s due process challenges to how the IJ conducted her removal proceedings or to how the BIA decided summarily to affirm the result reached by the immigration judge. PETITION GRANTED; ORDER OF REMOVAL VACATED. . 8 C.F.R. § 3.1(a)(7)(ii) allows a single Board member to enter a Board order affirming the result of the immigration judges's decision if the result reached is correct; any errors are harmless or nonmaterial; and either the issue on appeal is squarely controlled by Board or federal circuit court precedent and does not involve application of precedent to a novel fact situation, or the factual and legal questions raised are so insubstantial that three-member review is not warranted. The Board's order cannot have reasons. In these circumstances, the IJ’s decision is the final agency decision for purposes of judicial review. . We ordered Huerta's appeal consolidated for purposes of oral argument with Cedano-Viera v. Ashcroft, No. 02-70454, and Ramirez v. INS," }, { "docid": "20505307", "title": "", "text": "Mine Workers of Am., 444 U.S. 212, 217, 100 S.Ct. 410, 62 L.Ed.2d 394 (1979) (applying common law agency test to determine union liability for acts of local). The district court did not abuse its discretion by denying Garity’s motion for leave to amend. See diodos v. West Publ’g Co., 292 F.3d 992, 1003 (9th Cir.2002) (setting forth standard of review and noting that a district court’s discretion is particularly broad where it has already granted leave to amend). We do not consider matters not specifically and distinctly raised and argued in the opening brief, or arguments and allegations raised for the first time on appeal. See Padgett v. Wright, 587 F.3d 983, 985 n. 2 (9th Cir.2009) (per curiam). We reject as without merit Garity’s contentions concerning discovery, after acquired evidence, and motions “critical” to her ease. Garity’s opposed motion to supplement the record on appeal, filed on January 26, 2013, is denied as unnecessary. American Postal Workers Union, Local # 7156’s opposed motion to dismiss it as a party and its counsel’s motion for leave to withdraw, jointly filed on November 20, 2012, are granted. AFFIRMED. This disposition is not appropriate for publication and is not precedent except as provided by 9th Cir. R. 36-3." }, { "docid": "22614321", "title": "", "text": "is to direct the district court to enter a corrected judgment striking the reference to § 1326(b)(2) so that the judgment will unambiguously reflect that the defendant was convicted of only one punishable offense pursuant to § 1326(a). See 28 U.S.C. § 2106 (“The Supreme Court or any other court of appellate jurisdiction may ... remand the cause and direct the entry of such appropriate judgment, decree or order ... as may be just under the circumstances.”). Our conclusion that this decision meets the criteria for publication was prompted by the fact that it establishes a rule of law that we had not previously announced in a published opinion. See 9th Cir. R. 36-2(a). Various three-judge panels of our court, however, have issued a number of unpublished memorandum decisions taking different approaches to resolving the question whether the Supreme Court’s opinion in Almendarez-Torres v. United States, 523 U.S. 224, 118 S.Ct. 1219, 140 L.Ed.2d 350 (1998), requires a district court faced with a defendant convicted of illegal re entry after deportation whose indictment refers to both 8 U.S.C. § 1326(a) and 8 U.S.C. § 1326(b)(2) to resentence or merely correct the judgment of conviction. These conflicting mandates undoubtedly have created no small amount of confusion for district judges who serve in border districts. While our present circuit rules prohibit the citation of unpublished memorandum dispositions, see 9th Cir. R. 36-3, we are mindful of the fact that they are readily available in on line legal databases such as Westlaw and Lexis. During oral argument, we asked counsel to submit a list of the unpublished dispositions of this court that have confronted this issue. The parties produced a list of twenty separate unpublished dispositions instructing district courts to take a total of three different approaches to correct the problem. Under our rules, these unpublished memorandum dispositions have no precedential value, see 9th Cir. R. 36-3, and this opinion now reflects the law of the circuit. To avoid even the possibility that someone might rely upon them, however, we list these unpublished memorandum decisions below so that counsel and the district courts" }, { "docid": "3667883", "title": "", "text": "the district court did not abuse its discretion in denying reconsideration. See Butler v. Kempthorne, 532 F.3d 1108, 1110 (10th Cir. 2008) (indicating that reconsideration motions are reviewed only for an abuse of discretion). Conclusion The judgment of the district court is affirmed. After examining the briefs and appellate record, this panel has determined unanimously that oral argument would not materially assist in the determination of this appeal. See Fed. R. App. P. 34(a)(2); 10th Cir. R. 34.1(G). The case is therefore ordered submitted without oral argument. This order and judgment is not binding precedent, except under the doctrines of law of the case, res judicata, and collateral estoppel. It may be cited, however, for its persuasive value consistent with Fed. R. App. P. 32.1 and 10th Cir. R. 32.1. . To the extent McCoy, argues for the first time in his reply brief that he properly served these three defendants, that argument is waived. See Gutierrez v. Cobos, 841 F.3d 895, 902 (10th Cir. 2016) (observing that “a party waives issues and arguments raised for the first time in a reply brief” (internal quotation marks omitted)). . McCoy has waived challenging the dismissal of his § 1983 claims, as he has advanced no argument that the district court erred in dismissing those claims. See Bronson v. Swensen, 500 F.3d 1099, 1104 (10th Cir. 2007) (stating that arguments not raised or inadequately presented in an opening brief are deemed waived). . McCoy does not argue that his amended complaint cured the pleading deficiencies of his original Title VII claims. Indeed, he asks that we reverse the district court’s decision and remand the case “back to [the] District Court with the original complaint to the next stage of [the] discovery process.” Aplt. Opening Br. at 4." }, { "docid": "12093434", "title": "", "text": "MEMORANDUM 1. Driver contends that his conviction for wire fraud constitutes an improper extraterritorial application of the statute. However, he failed to raise this objection below, and we therefore review for plain error. United States v. Barragan-Espinoza, 350 F.3d 978, 981 (9th Cir. 2003) (“[W]e review for plain error alleged violations of [Rule 11] raised for the first time on appeal.”). Under this standard of review, Driver fails to show any error of law, much less one that is clear or obvious. United States v. Walls, 784 F.3d 543, 546 (9th Cir. 2015) (plain error standard of review). Although Driver claims that the focus of the wire fraud statute is the scheme to defraud, we held that “[t]he focus of [the mail and wire fraud statutes] is upon the misuse of the instrumentality of communication.” United States v. Garlick, 240 F.3d 789, 792 (9th Cir. 2001) (quoting United States v. Alston, 609 F.2d 531, 536 (D.C. Cir. 1979)). Therefore, we affirm the conviction. 2. Next, Driver contends that his sentence is procedurally unreasonable and that the district court’s restitution calculation was flawed because the court considered foreign conduct in reaching its conclusions. Because Driver also failed to raise these objections below, we review for plain error. Under this standard, Driver has failed to show that any error was clear or obvious. Walls, 784 F.3d at 546. Therefore, we affirm the sentence on procedural grounds. 3.Driver contends that his sentence is substantively unreasonable because the district court failed to consider all of the mitigating facts submitted in support of a more lenient sentence. Driver, however, has failed to provide any fact or argument supporting “a definite and firm conviction” that, in imposing the guidelines-range sentence, “the district court committed a clear error of judgment.” United States v. Ressam, 679 F.3d 1069, 1086 (9th Cir. 2012) (quoting United States v. Hinkson, 585 F.3d 1247, 1260 (9th Cir. 2009) (en banc)). AFFIRMED. This disposition is not appropriate for publication and is not precedent except as provided by 9th Cir. R. 36-3." }, { "docid": "20869269", "title": "", "text": "MEMORANDUM Jimmy Kuang appeals the district court’s order granting Bel Air Mart’s motion for summary judgment. We have jurisdiction under 28 U.S.C. § 1291. Even if Huang’s declaration and attachments were admissible, the district court did not err in dismissing Kuang’s claim for breach of the Collective Bargaining Agreement (CBA), because Kuang failed to exhaust the grievance procedures required by the CBA. See Vaca v. Sipes, 386 U.S. 171, 184, 87 S.Ct. 903, 17 L.Ed.2d 842 (1967). Because Kuang informed the district court, both orally and in his written submissions, that he waived the argument that his failure to exhaust was excused due to the union’s breach of its duty of fair representation, this argument is waived on appeal and we do not reach it. See Blaisdell v. Frappiea, 729 F.3d 1237, 1241-42 (9th Cir. 2013). Because Kuang waived his hybrid claim, we do not reach his remaining arguments. AFFIRMED. This disposition is not appropriate for publication and is not precedent except as provided by Ninth Circuit Rule 36-3." } ]

[ { "docid": "17090455", "title": "", "text": "course of an arrest, investigatory stop, or other ‘seizure’ of a free citizen should be analyzed under the Fourth Amendment and its ‘reasonableness’ standard, rather than under a ‘substantive due process’ approach.” Id. at 395, 109 S.Ct. at 1871. In determining whether the force used to effect a particular seizure is reasonable,. a court must evaluate the particular circumstances of each case. As the Graham Court stated: Because “[t]he test of reasonableness under the Fourth Amendment is not capable of precise definition or mechanical application,” Bell v. Wolfish, 441 U.S. 520, 559 [99 S.Ct. 1861, 1884, 60 L.Ed.2d 447] (1979), ... its proper application requires careful attention to the facts and circumstances of each particular case, including the severity of the crime at issue, whether the suspect poses an immediate threat to the safety of the officers or others, and whether he is actively resisting arrest or attempting to evade arrest by flight. See Tennessee v. Garner, 471 U.S. [1], at 8-9 [105 S.Ct. 1694 at 1700, 85 L.Ed.2d 1 (1985) ] (the question is “whether the totality of the circumstances justified] a particular sort of ... seizure”). Id., 490 U.S. at 396, 109 S.Ct. at 1872. Given Graham’s, teaching that each case be decided on its own facts, we reject defendants’ invitation to adopt a per se rule that the use of handcuffs in effecting an arrest is always reasonable. Even though defendants Firmin and Luty are not able on this summary judgment motion to establish that their conduct was necessarily “objectively reasonable,” they can prevail on their qualified immunity defense if they can show that the rights plaintiff claims to have been violated were not “clearly established.” See Finnegan, 915 F.2d at 823. While the right to be free from excessive force is clearly established, the inquiry cannot stop at such a generalized level of fact. See id. (“[T]o say that the use of constitutionally excessive force violates a clearly established right ... begs the open question whether the particular degree of force under the particular circumstances was excessive.”); see also Anderson v. Creighton, 483 U.S. 635, 640," } ]

[ { "docid": "758393", "title": "", "text": "amount to “punishment”. Conversely, if a restriction or condition is not reasonably related to a legitimate goal — if it is arbitrary or purposeless — a court permissibly may infer that the purpose of the governmental action is punishment that may not constitutionally be inflicted upon detainees qua detainees. Bell v. Wolfish, 441 U.S. 520, 538, 99 S.Ct. 1861, 1874, 60 L.Ed.2d 447 (1979) (citations omitted), quoting Kennedy v. Mendoza-Martinez, 372 U.S. 144, 168-69, 83 S.Ct. 554, 567-68, 9 L.Ed.2d 644 (1963). See also Biancone v. Kramer, 513 F.Supp. 908 (E.D.Pa.1981). In the case at bar, plaintiff has alleged that defendants treated him in this manner as punishment or retaliation for engaging in conduct arguably protected by the First Amendment. Plaintiff has also alleged that defendants denied him “access to the courts as guaranteed by the First Amendment to the Constitution”. Plaintiff should amend the complaint to identify specifically the factual basis of his First and Fourteenth Amendment claims. Similarly, in the sixth cause of action plaintiff alleged that “the defendants herein named did conspire to deny plaintiff his rights under the Fourteenth Amendment, Due Process and Equal Protection of the Law”. Apparently, plaintiff considers defendants’ treatment of pre-trial detainees unconstitutional. Defendants permitted convicted inmates, but not him, phone calls, access to a law library, a notary public, and visits from friends and family. Evidently, plaintiff also thinks defendants denied him due process of law because of his summary placement in lockup without sufficient procedural protections. In any event, plaintiff will be granted leave to amend the complaint to identify specifically what and whose conduct violated these constitutional guarantees. See Ross v. Meagan, 638 F.2d 646, No. 79-1920 (3d Cir. January 16, 1981), Lang v. Windsor Mount Joy Mutual Insurance Co., 487 F.Supp. 1303 (E.D.Pa.), aff’d, 636 F.2d 1209 (3d Cir. 1980), Holman v. Carpenter Technology Corp., 484 F.Supp. 406 (E.D.Pa.1980). Likewise, in the fifth cause of action plaintiff alleged that “the defendants herein named did conspire to subject this Plaintiff to unlawful discrimination, in direct violation of the United States Constitution”. This allegation also requires greater specificity. In the" }, { "docid": "17944591", "title": "", "text": "v. Cuomo, 737 F.2d 1239, 1245 (2d Cir.1984), the Second Circuit stated, “Isolated instances of inadequate care, or even of malpractice, do not demonstrate a constitutional violation.” See also, Seide v. Prevost, 536 F.Supp. 1121, 1135 (S.D.N.Y.1982). In Bell v. Wolfish, 441 U.S. 520, 99 S.Ct. 1861, 60 L.Ed.2d 447. (1979), in which the constitutionality of various conditions of the Metropolitan Correctional Center in New York were challenged, the Court stated, with regard to the challenge concerning room searches of prisoners, that although it may be that some guards have conducted these searches improperly, and assuming that the violations may even have reached constitutional proportion, this is not an action for damages and therefore such isolated problems do not warrant classwide injunctive relief. 441 U.S. at 557 n. 38, 99 S.Ct. at 1884 n. 38. None of the decisions involving institutional settings, including Rennie, supra, Bell, supra, Youngberg v. Romeo, 457 U.S. 307, 102 S.Ct. 2452, 73 L.Ed.2d 28 (1982) or Scott v. Plante, 691 F.2d 634 (3d Cir.1982), significantly reduce the requirement that challenged conduct must either be codified or. a pervasive practice in order to rise to that level which will warrant an injunction against such conduct in futuro. III. PLAINTIFFS’ CONSTITUTIONAL CLAIMS The Court will now direct its attention to each of the “constitutional” claims asserted by plaintiffs to determine whether a case for injunctive relief has been made. Initially, the Court notes that there have been changes in both published policies/regula tions and practices applicable to Lyons since the institution of this suit in 1979. In determining whether either a prohibitory or mandatory injunction is appropriate, this Court will assess present practices and published standards, not those of the past which have been superseded and, in some instances, corrected. Additionally, the Court notes that, “Plaintiffs [now] concede the inapplicability of the Eighth Amendment” (“cruel and unusual punishment”) to any claim. P.B. 2. For reasons set forth hereafter, the defendants’ motion is granted and the present class action dismissed in full. A. PLAINTIFFS’ CLAIMS BASED UPON THE FIRST AMENDMENT The First Amendment to the U.S. Constitution interdicts" }, { "docid": "4474092", "title": "", "text": "access-to-courts claim based on any injury regarding his civil forfeiture ease. Thus, even if they had discretionary authority to provide a law library at MCJ, Blankenship and Hall did not violate Wilson’s constitutional right of access to courts. 2. Exercise Wilson complains that both outdoor and indoor exercise were unavailable to him while he was housed at MCJ. It is undisputed that MCJ has no space or provision for outdoor exercise for its inmates. Additionally, Wil-sqn contends that he was unable to exercise inside MCJ because of the lack of space resulting from the number of inmates there. In contrast to a sentenced prisoner, whose conditions of confinement are analyzed under the Cruel and Unusual Punishment Clause of the Eighth Amendment, “the proper inquiry [for a pretrial detainee] is whether [confinement] conditions amount to punishment of the [unadjudicated] detainee” under the Due Process Clause of the Fourteenth Amendment. Bell v. Wolfish, 441 U.S. 520, 535 & n. 16, 99 S.Ct. 1861, 1872 & n. 16, 60 L.Ed.2d 447 (1979); see Villarreal v. Woodham, 113 F.3d 202, 207 (11th Cir.1997) (recognizing that confinement of pretrial detainees is a “necessary restriction” to ensure their presence in court). Not every disability imposed during pretrial detention amounts to “punishment” in the constitutional sense, however.... And the fact that such detention interferes with the detainee’s understandable desire to live as comfortably as possible and with as little restraint as possible during confinement does not convert the conditions or restrictions of detention into “punishment.” Bell, 441 U.S. at 537, 99 S.Ct. at 1873. In analyzing confinement conditions about which a pretrial detainee complains, a court-must decide whether the detention officials intentionally imposed the restriction for a punitive purpose or whether it is reasonably incidental to a legitimate government objective. See id. at 538-39, 99 S.Ct. at 1873-74; Villarreal, 113 F.3d at 207. “If a restriction is not reasonably related to a legitimate goal — if it is arbitrary or purposeless — a court may infer that the purpose of the government action is punishment.” Lynch v. Baxley, 744 F.2d 1452, 1463 (11th Cir.1984). Additionally, our court" }, { "docid": "3090038", "title": "", "text": "motion for summary judgment based on qualified immunity. Pagels v. Morrison, 335 F.3d 736, 739 (8th Cir.2003) (citation omitted). Thus, we will affirm a denial of qualified immunity “if there exists a genuine issue of material fact concerning the [defendant’s] knowledge or if the moving party is not entitled to judgment as a matter of law.” Lyles v. City of Barling, 181 F.3d 914, 917 (8th Cir.1999). To determine whether an official is entitled to qualified immunity, we ask two questions: (1) whether, after viewing the facts in the light most favorable to the party asserting the injury, there was a deprivation of a constitutional right; and, if so, (2) whether the right was clearly established at the time of the deprivation such that a reasonable official would understand his conduct was unlawful in the .situation he confronted. See Saucier v. Katz, 533 U.S. 194, 202, 121 S.Ct. 2151, 150 L.Ed.2d 272 (2001); County of Sacramento v. Lewis, 523 U.S. 833, 841 n. 5, 118 S.Ct. 1708, 140 L.Ed.2d 1043 (1998); Wilson, 260 F.3d at 951. With regard to the first inquiry, “[i]t is well established that the Eighth Amendment prohibition on cruel and unusual punishment extends to protect prisoners from deliberate indifference to serious medical needs.” Gregoire v. Class, 236 F.3d 413, 417 (8th Cir.2000) (citing Estelle v. Gamble, 429 U.S. 97, 104, 97 S.Ct. 285, 50 L.Ed.2d 251 (1976)). Because Blount was a pretrial detainee, Vaughn’s claims are analyzed under the Fourteenth Amendment’s Due Process Clause rather than the Eighth Amendment. See Bell v. Wolfish, 441 U.S. 520, 535 n. 16, 99 S.Ct. 1861, 60 L.Ed.2d 447 (1979). “Under the Fourteenth Amendment, pretrial detainees are entitled to ‘at least as great’ protection as that afforded convicted prisoners under the Eighth Amendment.” Owens v. Scott County Jail, 328 F.3d 1026, 1027 (8th Cir.2003) (per curiam) (quoting City of Revere v. Mass. Gen. Hosp., 463 U.S. 239, 244, 103 S.Ct. 2979, 77 L.Ed.2d 605 (1983)); see also Crow, 403 F.3d at 601; Smith v. Copeland, 87 F.3d 265, 268 n. 4 (8th Cir.1996) (stating burden to establish constitutional violations is" }, { "docid": "8114997", "title": "", "text": "official would have known that his actions were unlawful.” Krout, 583 F.3d at 564. Turning first to the plaintiffs’ excessive-force claims, we conclude that the district court correctly denied summary judgment on the basis of qualified immunity. Because the plaintiffs were pretrial detainees, their relevant constitutional rights arise under the Due Process Clause of the Fourteenth Amendment. Putman v. Gerloff, 639 F.2d 415, 419 (8th Cir.1981). “[T]he Due Process Clause protects a pretrial detainee from the use of excessive force that amounts to punishment.” Graham v. Connor, 490 U.S. 386, 395 n. 10, 109 S.Ct. 1865, 104 L.Ed.2d 443 (1989); see also Andrews v. Neer, 253 F.3d 1052, 1060-61 (8th Cir.2001). Thus, our due-process excessive-force analysis focuses on whether a defendant’s “purpose in [using force against a pretrial detainee] ... was to injure, punish or discipline” the detainee. Putman, 639 F.2d at 421; see also Bell v. Wolfish, 441 U.S. 520, 538, 99 S.Ct. 1861, 60 L.Ed.2d 447 (1979). However, the Due Process Clause affords pretrial detainees at least as much protection as the Eighth Amendment provides to convicted prisoners. Owens v. Scott Cnty. Jail, 328 F.3d 1026, 1027 (8th Cir.2003). Therefore, if the use of force in this case would have violated the Eighth Amendment had the plaintiffs been prisoners, that conduct necessarily violated the plaintiffs’ rights under the Fourteenth Amendment. The facts that the district court found to be supported by the record for the purpose of summary judgment would support a claim of excessive force in violation of the Eighth Amendment. “When confronted with a claim of excessive force alleging a violation of the Eighth Amendment, the core judicial inquiry is ‘whether force was applied in a good-faith effort to maintain or restore discipline, or maliciously and sadistically to cause harm.’ ” Santiago v. Blair, 707 F.3d 984, 990 (8th Cir.2013) (quoting Hudson v. McMillian, 503 U.S. 1, 7, 112 S.Ct. 995, 117 L.Ed.2d 156 (1992)). The district court found for the purpose of summary judgment that, immediately before the guards entered Pod B, the plaintiffs were lying submissively, face-down, in the pod. The guards could see" }, { "docid": "19893949", "title": "", "text": "n. 2 (Miss.1997) (citing same). Overcrowding of persons in custody is not per se unconstitutional. See Rhodes v. Chapman, 452 U.S. 337, 347-50, 101 S.Ct. 2392, 69 L.Ed.2d 59 (1981). However, the Fourteenth Amendment prohibits the “imposition of conditions of confinement on pretrial detainees that constitute ‘punishment.’ ” Hamilton v. Lyons, 74 F.3d 99, 103 (5th Cir.1996) (citing Bell v. Wolfish, 441 U.S. 520, 535, 99 S.Ct. 1861, 60 L.Ed.2d 447 (1979)). In Hamilton, where a detainee alleged he was denied visitation, telephone access, recreation, mail, legal materials, sheets, and showers for a three-day period, this Court found such treatment did not amount to punishment to give rise to a constitutional claim. 74 F.3d at 106 (citing Bell for proposition that the Constitution is not concerned with a “de minimis level of imposition” on pretrial detainees). This Court applies the Bell test to assess pretrial detainee due process claims: [I]f a particular condition or restriction of pretrial detention is reasonably related to a legitimate governmental objective, it does not, without more, amount to “punishment.” [Footnote omitted.] Conversely, if a restriction or condition is not reasonably related to a legitimate goal — if it is arbitrary or purposeless — a court permissibly may infer that the purpose of the governmental action is punishment that may not constitutionally be inflicted upon detainees qua detainees. 441 U.S. at 539, 99 S.Ct. 1861. “[T]his test is deferential to jail rulemaking; it is in essence a rational basis test of the validity of jail rules.” Hare v. City of Corinth, Miss., 74 F.3d 633, 646 (5th Cir.1996) (describing Bell test). Thus, it is clearly established that pretrial detainees’ due process rights are violated when they are subjected to conditions of confinement that constitute punishment which are not reasonably related to a legitimate governmental objective. Whether individual Defendants Kirby, Hemphill, Goza, Winters, Seals, and Givens are entitled to qualified immunity. Based on the summary judgment record evidence, Plaintiffs have not shown that Deputies Hemphill, Goza, Winters, Seals, and Givens had any particular material interaction whatsoever with any particular Plaintiff. Deputy Seals stated he was informed the" }, { "docid": "16986945", "title": "", "text": "time, and placed in a holding cell pending arraignment. Moore subsequently replaced the female jailer, entered Scott’s cell, and sexually assaulted her repeatedly during the course of his eight-hour shift. After being placed on administrative leave pending a police investigation, Moore resigned and pleaded guilty to criminal charges in connection with the assault. II. Scott filed suit in state court against Moore and the city, asserting various constitutional claims. Moore then declared bankruptcy and was dismissed from the suit, whereupon the city removed the case to federal court. The district court granted summary judgment for defendants, and a panel of this court affirmed on all issues except for Scott’s inadequate staffing claim under § 1983. See Scott v. Moore (“Scott I”), 987 F.2d 771, No. 92-8284 (5th Cir. Mar. 3, 1993) (per curiam) (unpublished). After remand, the district court granted summary judgment for defendants on the inadequate staffing claim. A second panel of this court vacated and remanded, whereupon we resolved to hear the matter en bane to consider the proper application of Hare to the instant facts. See Scott v. Moore, 85 F.3d 230 (5th Cir.), vacated for reh’g en banc, 85 F.3d 240 (5th Cir.1996). III. A. In Hare, we reconciled our circuit caselaw regarding pretrial detainees, informed in particular by Farmer v. Brennan, 511 U.S. 825, 114 S.Ct. 1970, 128 L.Ed.2d 811 (1994). We noted that determining which standard to apply in analyzing constitutional challenges by pretrial detainees hinges upon the classification of a challenge as an attack on a “condition of confinement” or as an “episodic act or omission.” 74 F.3d at 644. A “condition of confinement” ease is a “[cjonstitutional attack! ] on general conditions, practices, rules, or restrictions of pretrial confinement.” Id. Hence, where a detainee complains of the number of bunks in a cell or his television or mail privileges, the wrong of which the detainee complains is a general condition of confinement. In such cases, the reasonable relationship test of Bell v. Wolfish, 441 U.S. 520, 99 S.Ct. 1861, 60 L.Ed.2d 447 (1979), is apposite, as we may safely assume, by the" }, { "docid": "11200568", "title": "", "text": "law methods,” Plaintiff cannot, “at least at this time, assert that [his] claim cannot be adequately compensated under state law.” Vaizburd v. United States, 90 F.Supp.2d 210, 217 (E.D.N.Y. 2000) (citing Deepwells Estates, Inc. v. Incorporated Village of Head of the Harbor, 973 F.Supp. 338, 347-48 (E.D.N.Y.1997)); see also Livant, 272 Fed.Appx. at 117 (affirming the district court’s dismissal of the plaintiffs takings claim as “unripe because [the plaintiff] failed to exhaust remedies seeking just compensation from the state before pursuing the federal takings claim”) (citations omitted). Accordingly, Defendants’ motion for summary judgment as to Plaintiffs Fifth Amendment claim is granted. (c) Eighth Amendment “Eighth Amendment scrutiny is appropriate only after the State has complied with the constitutional guarantees traditionally associated with criminal prosecutions ----[T]he State does not acquire the power to punish with which the Eighth Amendment is concerned until after it has secured a formal adjudication of guilt in accordance with due process of law.” City of Revere v. Massachusetts Gen. Hosp., 463 U.S. 239, 244, 103 S.Ct. 2979, 2983, 77 L.Ed.2d 605 (1983) (citing Ingraham v. Wright, 430 U.S. 651, 671-72, n. 40, 97 S.Ct. 1401, 1412-13, n. 40, 51 L.Ed.2d 711 (1977); Bell v. Wolfish, 441 U.S. 520, 535, n. 16, 99 S.Ct. 1861, 1872, n. 16, 60 L.Ed.2d 447 (1979)); see also Atkins v. Virginia, 536 U.S. 304, 311, 122 S.Ct. 2242, 2246, 153 L.Ed.2d 335 (2002) (stating that “[t]he Eighth Amendment succinctly prohibits “[ejxcessive” sanctions”). Plaintiff was not convicted of a criminal offense and Plaintiff has not proffered any evidence indicating that Plaintiff was subjected to cruel and unusual punishment. Accordingly, Defendants’ motion for summary judgment as to Plaintiffs Eighth Amendment claim is granted. (d) Ninth Amendment The Ninth Amendment provides that “[t]he enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people.” U.S. Const, amend. IX. The Ninth Amendment, however, is “a rule of construction” and does not give rise to “individual rights.” Jenkins v. Commissioner of I.R.S., 483 F.3d 90, 92-93 (2d Cir.2007) (“The Ninth Amendment is not an independent source of" }, { "docid": "2112863", "title": "", "text": "court found that the evidence presented by Villanueva was insufficient to establish that the restrictive confinement 'imposed upon him while a pretrial detainee at Gumbo constituted punishment and granted appellees’ motions for a directed verdict. II. The Due Process Clause of the United States Constitution prohibits the punishment of persons prior to a judgment of conviction. Accordingly, the constitutional issue presented here is whether the conditions of confinement to which Villanueva was subjected were punitive in nature. Bell v. Wolfish, 441 U.S. 520, 535, 99 S.Ct. 1861, 1872, 60 L.Ed.2d 447 (1979); Campbell v. Cauthron, 623 F.2d 503, 505 (8th Cir. 1980). This determination focuses on whether the detention facility officials have acted with intent to punish the inmates. Even in the absence of express punitive intent, “if a restriction or condition is not reasonably related to a legitimate goal — if it is arbitrary or purposeless — a court permissibly may infer that the purpose of the governmental action is punishment * * *.” Campbell v. Cauthron, supra, 623 F.2d at 505 (quoting Bell v. Wolfish, supra, 441 U.S. at 539, 99 S.Ct. at 1874). See also Putman v. Gerloff, 639 F.2d 415, 419 (8th Cir. 1981); Lareau v. Manson, 651 F.2d 96 (2d Cir. 1981). The legitimate governmental objectives of pretrial detention are to insure a detainee’s presence at trial and to maintain security and order in its detention facilities. See Putman v. Gerloff, supra, 639 F.2d at 419. The question of whether there is sufficient direct evidence of the defendants’ punitive intent is one for the jury. Moreover, the jury may “infer that the purpose was punishment from the fact that the condition either bore no reasonable relation to a legitimate goal or exceeded what was necessary for attaining such a goal.” Putman v. Gerloff, supra, 639 F.2d at 420 (footnote omitted) (emphasis added). See also Bell v. Wolfish, supra, 441 U.S. at 539 n.20, 99 S.Ct. at 1874 n.20. There is evidence in this record from which the jury could have reasonably concluded that Villanueva’s conditions of confinement were unnecessarily excessive and bore no reasonable relation" }, { "docid": "11506105", "title": "", "text": "to these allegations, for the purposes of summary judgment, we take all facts and reasonable inferences in the light most favorable to the nonmoving party. See Ruby v. Springfield R-12 Public Sch. Dist., 76 F.3d 909, 911 (8th Cir.1996). In response, the county submitted an affidavit of Robert C. Scott, the Assistant Jail Administrator during the time of Ferguson’s confinement. In that affidavit, Scott asserted that Ferguson was confined upon his arrival in the vestibule area of the jail, where he could remain under constant observation, due to concern for Ferguson’s medical condition (Ferguson had been complaining of chest pains) as well as the perceived danger that Ferguson represented. (Aff. of Robert C. Scott, ¶ 13). On May 30th, Ferguson was permitted to move to a regular cell in the maximum security wing of the jail. Id. at ¶ 24. Although there was no steel bunk in the vestibule cell, Ferguson was provided with a standard mattress and pillow. Id. at ¶ 15. Ferguson was allowed to use bathroom facilities upon request. Id. at ¶ 17. Despite his complaint of the constant light, he was observed sleeping ninety-three hours of the fourteen days spent in the vestibule. Id. at ¶ 21. Ferguson was also allowed out of the vestibule for various purposes approximately forty-nine hours over the fourteen-day period. Id. at ¶ 20. These factual assertions are uncontradicted by the plaintiff. Although the moving party has the burden of showing that there is no genuine issue of fact, the nonmoving party may not rest on allegations, but must set forth specific facts sufficient to raise a genuine issue for trial. See Tindle v. Caudell, 56 F.3d 966, 969 (8th Cir.1995). Conditions of pretrial confinement are impermissible if they constitute punishment as determined by the due process standards of the Fifth and Fourteenth Amendments. See Bell v. Wolfish, 441 U.S. 520, 99 S.Ct. 1861, 60 L.Ed.2d 447 (1979). “[I]f a particular condition or restriction of pretrial detention is reasonably related to a legitimate governmental objective, it does not, without more, amount to ‘punishment.’ ” Id. at 539, 99 S.Ct. at 1874." }, { "docid": "5452208", "title": "", "text": "one half hour of deliberations. In light of Graham v. Connor, 490 U.S. 386, 109 S.Ct. 1865, 104 L.Ed.2d 443 (1989), the task in a § 1983 case such as this is “to identify the specific constitutional provision under which ... [plaintiff’s] claim arose.” Id. 109 S.Ct. at 1865. As aptly summarized, After Graham, 109 S.Ct. at 1871 n. 10; Whitley v. Albers, 475 U.S. 312, 106 S.Ct. 1078, 89 L.Ed.2d 251 (1986); Bell v. Wolfish, 441 U.S. 520, 535-39, 99 S.Ct. 1861, 1871-74, 60 L.Ed.2d 447 (1979); ..., three different parts of the Bill of Rights apply in sequence during arrest and con finement. Force during arrest must be reasonable within the meaning of the Fourth Amendment; between arrest and conviction the government may not “punish” the suspect without due process of law; after conviction the government may not inflict cruel and unusual punishment. Titran v. Ackman, 893 F.2d 145, 147 (7th Cir.1990). Because plaintiff had not been convicted of the charges for which he was arrested on July 25, 1987, see Graham v. Connor, 109 S.Ct. at 1869 n. 6; id. 109 S.Ct. at 1871 n. 10; Bell v. Wolfish, 441 U.S. 520, 535 n. 16, 99 S.Ct. 1861, 1872 n. 16, 60 L.Ed.2d 447 (1979), the issue presented by the motion for a directed verdict concerns whether plaintiff’s denial of medical treatment claim must be judged by the Fourth Amendment’s objective reasonableness standard or by the Fourteenth Amendment’s due process standard. The distinction is important because, under the Fourth Amendment standard, the court needs only to decide, upon a view of the evidence most favorable to plaintiff, whether the asserted denial of medical treatment was objectively unreasonable “focusing on the circumstances confronting the police at the time of the arrest without regard to their underlying motives or attitude towards the suspect, ...” Miller v. Lovett, 879 F.2d 1066, 1070 (2d Cir.1989); Calamia v. City of New York, 879 F.2d 1025, 1034-35 (2d Cir.1989). Under the Fourth Amendment, therefore, the denial of medical care to an arrestee is judged as but one component of the objective reasonableness standard" }, { "docid": "2079005", "title": "", "text": "F.2d 765, 767 (5th Cir.1986), cert. denied, 481 U.S. 1013, 107 S.Ct. 1887, 95 L.Ed.2d 495 (1987) (explaining that because a detainee’s imprisonment did not result from a conviction the Eighth Amendment is inapplicable). We consider a person detained for deportation to be the equivalent of a pretrial detainee; a pretrial detainee’s constitutional claims are considered under the due process clause instead of the Eighth Amendment. Id. (citing Bell v. Wolfish, 441 U.S. 520, 535 n. 16, 99 S.Ct. 1861, 1871, 60 L.Ed.2d 447 (1979)). This court has previously detailed the proper analysis applicable to constitutional challenges by pretrial detainees. See Olabisiomotosho v. City of Houston, 185 F.3d 521, 526 (5th Cir.1999); Scott v. Moore, 114 F.3d 51 (5th Cir.1997) (en banc); Hare v. City of Corinth, 74 F.3d 633 (5th Cir. 1996) (en banc). We begin by determining whether to classify the challenge as an attack on a “condition of confinement” or an “episodic act or omission”. Olabisiomotosho, 185 F.3d at 526 (citing Scott, 114 F.3d at 53). For example, when a detainee complains of the number of bunks in a cell or mail privileges that is best characterized as a complaint about general conditions of confinement. Scott, 114 F.3d at 53. However, where the complaint is one concerning a particular act or omission by one official it is properly characterized as an “episodic act or omission”. Id. In the present case, Edwards complains that the particular act of confining him to administrative detention and disciplinary segregation was a constitutional violation. Thus, because Edwards’ claims concern a particular act instead of the general conditions at FDC Oakdale, we will consider his complaint as one regarding an “episodic act or omission.” To prove an underlying constitutional violation in an episodic acts case, the detainee must establish that the official acted with subjective deliberate indifference. Id. at 54. As to Edwards being placed in administrative segregation he claims that Johnson made a false charge against him for unauthorized contact with the public, after granting Edwards permission to communicate with the visitors. However, one of the detainee witnesses at the disciplinary hearing" }, { "docid": "26541", "title": "", "text": "persons confined as he is confined, and subject to the same conditions to which he is subject). The court, therefore, dismisses the equal protection claims as frivolous pursuant to 28 U.S.C. §§ 1915(e)(2)(B)(ii) and 1915A(b)(1). F. Disciplinary Proceedings Plaintiff alleges that Pedrick violated his constitutional rights when Pedrick found plaintiff guilty of having dangerous contraband and then punished plaintiff with twenty days confinement “in the hole.” Unlike sentenced inmates, pretrial detainees have a liberty interest in being free from punishment prior to conviction under the Due Process Clause. Bell v. Wolfish, 441 U.S. 520, 535-36, 99 S.Ct. 1861, 60 L.Ed.2d 447 (1979), “Absent a showing of an expressed intent to punish on the part of detention facility officials, that determination generally will turn on whether an alternative purpose to which [the restriction] may rationally be connected is assignable for it, and whether it appears exees sive in relation to the alternative purpose assigned [to it].” Id. at 538, 99 S.Ct. 1861. Therefore, “if a restriction or condition is not reasonably related to a legitimate goal — if it is arbitrary or purposeless a court permissibly may infer that the purpose of the governmental action is punishment that may not constitutionally be inflicted upon detainees qua detainees.” Id. at 539, 99 S.Ct. 1861. In the absence of substantial evidence in the record to indicate that the officials have exaggerated their response, courts should ordinarily defer to the expert judgment of corrections officials in determining whether restrictions or conditions are reasonably related to the government’s interest in maintaining security and order and operating the institution in a manageable fashion, given that said considerations are peculiarly within the province and professional expertise of corrections officials. Id. at 540 n. 23, 99 S.Ct. 1861. Unconstitutional punishment typically includes both objective and subjective components. Stevenson v, Carroll, 495 F.3d 62, 68 (3d Cir.2007). The objective component requires an inquiry into whether “the deprivation [was] sufficiently serious” and the subjective component asks whether “the officials act[ed] with a sufficiently culpable state of mind[.]” Id. (citations omitted). It is clear from the allegations in the complaint that" }, { "docid": "18399471", "title": "", "text": "any possibility of their actions being characterized as deliberate or callous indifference. Id. Camic is distinguishable. Camic focuses on the rigorous Eighth Amendment “deliberate or callous indifference” standard, but does not address the more lenient Fourteenth Amendment analysis. Although Count 2 claims violations of Eighth and Fourteenth Amendment rights, the latter properly supports plaintiff’s claim. The Eighth Amendment protects prisoners or pretrial detainees who allege either an express intent to punish or arbitrary or purposeless restrictions on conditions. Bell v. Wolfish, 441 U.S. 520, 99 S.Ct. 1861, 60 L.Ed.2d 447 (1979). Decedent was not a convict. He was presumed to be innocent, and any deprivation of his constitutional rights by the state was severely limited. Smith v. Sampson, 349 F.Supp. 268, 271 (D.N.H.1972). Decedent was not a pretrial detainee, i.e., one who had a judicial determination of probable cause as a, prerequisite to any extended restraint of liberty following arrest. Bell v. Wolfish, 441 U.S. 536, 99 S.Ct. 1872. Furthermore, plaintiff does not allege that defendant intended to punish or placed arbitrary or purposeless restrictions on conditions. Plaintiff therefore fails to state a claim under the Eighth Amendment. But plaintiff is not prisoner to the Camic court’s stringent Eighth Amendment analysis, because she states a claim for deprivation of those constitutional rights secured by the Due Process Clause of the Fourteenth Amendment. Bell v. Wolfish, 441 U.S. 535 n. 16, 99 S.Ct. 1872 n. 16; City of Revere v. Massachusetts General Hospital, 463 U.S. 239, 103 S.Ct. 2979, 2983, 77 L.Ed.2d 605 (1983). Title 42 U.S.C. § 1983 gives to plaintiff the remedy for deprivation of constitutional rights. Chapman v. Houston Welfare Rights Organization, 441 U.S. 600, 617-18, 99 S.Ct. 1905, 1915-16, 60 L.Ed.2d 508 (1979). Plaintiff may proceed under section 1983 if the conduct complained of was committed while defendant acted under color of state law and when the conduct deprived decedent of rights, privileges, or immunities secured by the Constitution of the United States. Parratt v. Taylor, 451 U.S. 527, 535, 101 S.Ct. 1908, 1913-14, 68 L.Ed.2d 410 (1981). Liability under 42 U.S.C. § 1983 may be imposed" }, { "docid": "8114996", "title": "", "text": "Goemmer, 583 F.3d 557, 564 (8th Cir.2009)); see also Brown v. Fortner, 518 F.3d 552, 557 (8th Cir.2008) (“[W]e may not review a district court’s finding of facts.”). “Appellate review in these circumstances is therefore limited to determining whether all of the conduct that the district court deemed sufficiently supported for purposes of summary judgment violated the plaintiffs clearly established federal rights.” White, 696 F.3d at 753 (alterations omitted) (quoting Shannon v. Koehler, 616 F.3d 855, 861 (8th Cir.2010)). We review the district court’s denial of summary judgment on the basis of qualified immunity de novo, viewing the evidence in the light most favorable to the non-moving party and giving that party the benefit of all reasonable inferences. Scott, 742 F.3d at 339. The defendants are entitled to qualified immunity unless (1) “the facts alleged or shown, construed in the light most favorable to [the plaintiffs], establish a violation of a constitutional or statutory right,” and (2) the “right was clearly established as of [the date of the alleged violation], such that a reason able official would have known that his actions were unlawful.” Krout, 583 F.3d at 564. Turning first to the plaintiffs’ excessive-force claims, we conclude that the district court correctly denied summary judgment on the basis of qualified immunity. Because the plaintiffs were pretrial detainees, their relevant constitutional rights arise under the Due Process Clause of the Fourteenth Amendment. Putman v. Gerloff, 639 F.2d 415, 419 (8th Cir.1981). “[T]he Due Process Clause protects a pretrial detainee from the use of excessive force that amounts to punishment.” Graham v. Connor, 490 U.S. 386, 395 n. 10, 109 S.Ct. 1865, 104 L.Ed.2d 443 (1989); see also Andrews v. Neer, 253 F.3d 1052, 1060-61 (8th Cir.2001). Thus, our due-process excessive-force analysis focuses on whether a defendant’s “purpose in [using force against a pretrial detainee] ... was to injure, punish or discipline” the detainee. Putman, 639 F.2d at 421; see also Bell v. Wolfish, 441 U.S. 520, 538, 99 S.Ct. 1861, 60 L.Ed.2d 447 (1979). However, the Due Process Clause affords pretrial detainees at least as much protection as the Eighth" }, { "docid": "22174766", "title": "", "text": "the legitimate police task at hand, ie., interviewing Smith, in order to assess whether the handcuffs were too tight. Because the easelaw did not provide Tate with notice that his response was unlawful, he should be entitled to qualified immunity. See Hope, 536 U.S. at 741, 122 S.Ct. 2508; Saucier, 533 U.S. at 202, 121 S.Ct. 2151. In summary, I conclude that the facts fail to demonstrate a violation of the Fourth Amendment right to be free from the use of excessive force. Even if the facts did state a claim of excessive force, Officer Tate should be entitled to qualified immunity. Accordingly, I would affirm the District Court’s order granting summary judgment for Officer Tate. . See also Braun v. Baldwin, 346 F.3d 761, 763 (7th Cir.2003) (affirming, inter alia, grant of summary judgment for defendants on excessive use of force claim based on tight handcuffing because there was no indication \"arrest was effected in an unusual or improper manner”); Burchett v. Kiefer, 310 F.3d 937, 944-45 (6th Cir.2002) (summary judgment for officers on excessive force claim affirmed because officers removed the handcuffs once plaintiff complained they were too tight); Rodriguez v. Farrell, 280 F.3d 1341, 1351 (11th Cir.2002) (\"painful handcuffing, without more,” is not excessive force); Glenn v. City of Tyler, 242 F.3d 307, 314 (5th Cir.2001) (declaring that \"handcuffing too tightly, without more, does not amount to excessive force”); Carter v. Morris, 164 F.3d 215, 219 n. 3 (4th Cir.1999) (finding that plaintiff's allegation that she was handcuffed too tightly was \"so insubstantial that it cannot as a matter of law support her claim” of excessive force); Foster v. Metro. Airports Comm'n, 914 F.2d 1076, 1082 (8th Cir.1990) (court affirmed grant of summary judgment for officers based on tight handcuffing, explaining that plaintiff’s allegations of pain alone were insufficient to support his claim of excessive force). . See Kukla v. Hulm, 310 F.3d 1046 (8th Cir.2002); Bastien v. Goddard, 279 F.3d 10, 12-13 (1st Cir.2002) (reversing judgment for officer based on tight handcuffing for more than four hours despite plaintiffs repeated complaints); Kostrzewa v. City of Troy," }, { "docid": "8186552", "title": "", "text": "for those who have been convicted of crimes. See Kriesel, 508 F.3d at 941 (quoting Samson, 547 U.S. at 852, 126 S.Ct. 2193). In those cases, we have found that felony parolees and those on supervised release are “ ‘not entitled to the full panoply of rights and protections possessed by the general public.’ ” Kriesel, 508 F.3d at 947 (quoting Kincade, 379 F.3d at 833). This case, however, concerns arrestees. All four of the plaintiffs were arrested for felonies, but no plaintiff was convicted of the felonies for which he or she was arrested. Two of them were not even charged. An arrestee does not have the same privacy interest as a person in the general population. See Rise, 59 F.3d at 1559-60 (holding those booking procedures requiring fingerprint identification of arrestees would be unlawful as applied to “free persons”). But we have repeatedly recognized that an arrestee has greater privacy interests than someone who has been convicted. See, e.g., United States v. Scott, 450 F.3d 863, 873 (9th Cir.2006) (holding that a “defendant out on his own recognizance before trial” possessed “privacy ... interests far greater than a probationer’s”). The majority recites “numerous degrading physical and emotional intrusions” to which imprisoned arrestees are subject, Majority Op. at 1058, but it misunderstands the nature of the privacy interests and does not take into account the justifications for impinging on those 'interests. The invasive search procedures upheld in Bell v. Wolfish, 441 U.S. 520, 558 & n. 39, 99 S.Ct. 1861, 60 L.Ed.2d 447 (1979) and Bullv. City & Cnty. of San Francisco, 595 F.3d 964, 971-73 (9th Cir.2010), were justified by the need for “security and order” in jails. Bell, 441 U.S. at 561, 99 S.Ct. 1861. The same is true of the opposite-sex monitoring of prisoners while in the shower and bathroom upheld by the Seventh Circuit. Johnson v. Phelan, 69 F.3d 144, 146 (7th Cir.1995) (noting the need for such monitoring because “inter-prisoner violence is endemic”). The other intrusions cited by the majority have only been upheld in exigent or specialized situations. For example, the Eleventh Circuit" }, { "docid": "11338571", "title": "", "text": "on any of his claims. The magistrate judge handling the case found that no genuine issue of material fact remained and recommended that summary judgment be granted. The district court adopted the magistrate’s report and recommendation and dismissed all claims. This appeal follows. II.STANDARD OF REVIEW This Court reviews the granting of summary judgment de novo, applying the same legal standards which bound the district court. Haves v. City of Miami, 52 F.3d 918, 921 (11th Cir.1995). In determining whether a genuine issue of material fact remains for trial, courts must view all evidence and make all reasonable inferences in favor of the party opposing summary judgment. Id. III.DISCUSSION The difficulty in sorting through the allegations in Appellant’s pro se complaints makes it necessary for us to analyze the claims defendant-by-defendant. In doing so, we construe Appellant’s complaint more liberally than we would the complaint of a represented party. See Haines v. Kerner, 404 U.S. 519, 520-21, 92 S.Ct. 594, 596, 30 L.Ed.2d 652 (1972); Fernandez v. United States, 941 F.2d 1488, 1491 (11th Cir.1991). A. Collins Appellee Nathaniel Collins was a correctional officer at MCI in late 1990. Appellant alleges that Collins sexually harassed him by conducting unwarranted strip searches and denied him access to the courts by confining him in his cell when he refused to submit to those searches. Collins denies intending to harass Appellant or block his access to the courts and claims that the strip searches were part of standard prison procedure. Construed liberally, Appellant’s complaint states a claim under the First and Eighth Amendments. Although prisoners have no Fourth Amendment right to be free from strip searches, Bell v. Wolfish, 441 U.S. 520, 557-59, 99 S.Ct. 1861, 1884, 60 L.Ed.2d 447 (1979), the Eighth Amendment prohibits the “unnecessary and wanton infliction of pain,” Wilson v. Seiter, 501 U.S. 294, 296-98, 111 S.Ct. 2321, 2323, 115 L.Ed.2d 271 (1991) (quoting Estelle, 429 U.S. at 104-05, 97 S.Ct. at 291). Thus, if Collins’ strip searches of Appellant are devoid of penological merit and imposed simply to inflict pain, the federal courts should intervene. See Turner v." }, { "docid": "15577967", "title": "", "text": "the remands of the Supreme Court and the Court of Appeals for the Second Circuit compel me to confront the questions posed by plaintiffs. See footnote 1, supra. Defendants have, until recently, argued vigorously that Bell v. Wolfish, 441 U.S. 520, 99 S.Ct. 1861, 60 L.Ed.2d 447 (1979) absolutely voids any possible federal constitutional claim with respect to contact visitation. Because recent case law convinces me otherwise, I denied defendants’ motion to dismiss. See Order entered July 1, 1981. The time has come to dispose of many of the remaining motions and to move this case towards a conclusion. I. PLAINTIFFS’ MOTION TO AMEND COMPLAINT Plaintiffs moved in 1979 to add a pendent state constitutional claim and additional requests for relief. As a rule, a motion to amend must be granted “freely when justice so requires,” Fed.R.Civ.P. Rule 15(a), unless there is undue delay, bad faith, or a dilatory motive on the part of the movant, or when the opposing party would be unduly prejudiced by the amendment. Foman v. Davis, 371 U.S. 178, 182, 83 S.Ct. 227, 230, 9 L.Ed.2d 222 (1962). Defendants claim that if plaintiffs are now allowed to amend their complaint, they will be unjustifiably prejudiced by the inordinate time which has passed since plaintiffs brought their motion. I do State Teachers Retirement Board v. Fluor Corporation and Manufacturers Hanover Trust Company, 654 F.2d 843, (2d Cir. 1981), the Court of Appeals reversed the district court’s refusal to let plaintiffs add entirely new claims three years after they initiated their action. The court emphasized that, “Mere delay, ... absent a showing of bad faith or undue prejudice, does not provide a basis for a district court to deny the right to amend.” Id. at 856. As in State Teachers Retirement Board, plaintiffs’ amendment will not work any undue burden or hardship on defendants. The proposed additional claim relies on the identical facts as those underlying plaintiff’s federal claim. No new problems of proof will result. The new claim will not involve much new discovery, if any. No summary judgment motions have yet been resolved. At most," }, { "docid": "23262268", "title": "", "text": "orders should not have been terminated if, on the record presented, they satisfied the requirements of 18 U.S.C. § 3626(b)(3). The Act provides that relief shall not terminate if it “remains necessary to correct a current and ongoing violation of [a] Federal right, extends no further than necessary to correct the violation of the Federal right, and ... is narrowly drawn and the least intrusive means to correct the violation.” 18 U.S.C. § 3626(b)(3). Review of an injunction pursuant to the PLRA’s standards is thus sometimes referred to as a “need-narrowness-intrusiveness” inquiry. Handberry v. Thompson, 436 F.3d 52, 64 (2d Cir.2006). This standard requires an assessment of the circumstances — both legal and factual — at the time termination is sought. See Gilmore, 220 F.3d at 1010 (citing Benjamin v. Jacobson, 172 F.3d 144, 166 (2d Cir.1999)). As state pre-trial detainees, plaintiffs are protected by the Fourteenth Amendment’s Due Process Clause, as well as specific substantive guarantees of the federal Constitution, such as the First and Eighth Amendments. Under the Due Process Clause, detainees have a right against jail conditions or restrictions that “amount to punishment.” Bell v. Wolfish, 441 U.S. 520, 535-37, 99 S.Ct. 1861, 60 L.Ed.2d 447 (1979). This standard differs significantly from the standard relevant to convicted prisoners, who may be subject to punishment so long as it does not violate the Eighth Amendment’s bar against cruel and unusual punishment. Id. at 535 n. 16, 99 S.Ct. 1861. Absent evidence of express punitive intent, it may be possible to infer a given restriction’s punitive status “from the nature of the restriction.” Valdez v. Rosenbaum, 302 F.3d 1039, 1045 (9th Cir.2002); see Demery v. Arpaio, 378 F.3d 1020, 1030 (9th Cir.2004) (noting that “to constitute punishment, the harm or disability caused by the government’s action must either significantly exceed, or be independent of, the inherent discomforts of confinement”). As the Supreme Court has explained, the determination of whether a particular condition or restriction imposes punishment in the constitutional sense will generally turn on whether an alternate purpose is reasonably assignable: if a particular condition or restriction of pre-trial" } ]

[ { "docid": "22656155", "title": "", "text": "held only as witnesses, if anything, if we had made a statement against DiGerlando . . . , that we would be able to go home that night.” Petitioner testified that he made the statement in issue because of this assurance. Officer Montejano denied offering any such assurance. A police officer testified that during the interrogation the following occurred: “I informed him of what DiGerlando told me and when I did, he told me that DiGerlando was [lying] and I said, ‘Would you care to tell DiGer-lando that?’ and he said, ‘Yes, I will.’ So, I brought . . . Escobedo in and he confronted DiGer-lando and he told him that he was lying and said, 'I didn’t shoot Manuel, you did it.’ ” In this way, petitioner, for the first time, admitted to some knowledge of the crime. After that he made additional statements further implicating himself in the murder plot. At this point an Assistant State’s Attorney, Theodore J. Cooper, was summoned “to take” a statement. Mr. Cooper, an experienced lawyer who was assigned to the Homicide Division to take “statements from some defendants and some prisoners that they had in custody,” “took” petitioner’s statement by asking carefully framed questions apparently designed to assure the admissibility into evidence of the resulting answers. Mr. Cooper testified that he did not advise petitioner of his constitutional rights, and it is undisputed that no one during the course of the interrogation so advised him. Petitioner moved both before and during trial to suppress the incriminating statement, but the motions were denied. Petitioner was convicted of murder and he appealed the conviction. The Supreme Court of Illinois, in its original opinion of February 1, 1963, held the statement inadmissible and reversed the conviction. The court said: “[I]t seems manifest to us, from the undisputed evidence and the circumstances surrounding defendant at the time of his statement and shortly prior thereto, that the defendant understood he would be permitted to go home if he gave the statement and would be granted an immunity from prosecution.” Compare Lynumn v. Illinois, 372 U. S. 528." } ]

[ { "docid": "11692815", "title": "", "text": "new legal territory, and the stress in the Court’s statement was upon its extension of the right of assistance of counsel, which only in the preceding year had been, in Gideon v. Wainwright, 372 U.S. 335, 83 S.Ct. 792, 9 L.Ed.2d 799 (1963), held binding upon the states in trials, to proceedings at the police station under a certain defined combination of circumstances. In the Court’s opinion in Escobedo, the paragraph beginning, “We hold,” 378 U.S. at pp. 490-491, 84 S.Ct. 1758, 12 L.Ed.2d 977, recites, in a single long sentence which we have paraphrased above, the several circumstances which are required to exist in combination to bring into effect the new exclusionary rules. Early in the interrogation, and before Frazier had made any statement of significance, he was advised that he had a right to an attorney and that any statement which he made could be used against him in a trial. He did not, as Escobedo did, request an opportunity to consult with any lawyer. He said, at a later point in the interrogation we have recited above, “I think I had better get a lawyer before I talk any more. I am going to get into trouble more than I am in now.” At the time involved in this case, there was no constitutional obligation on the part of a state to advise a suspect that he had a right to consult a lawyer during a police investigation, and there was no obligation to supply him with a lawyer. The interrogators had no duty, then, to follow up the suspect’s statement that he thought he had better get a lawyer, by asking him to elaborate it. He had made the statement, and knew whether he wanted to pursue it or not. He did not pursue it, but continued to make his statement. We conclude that, under the teachings of the Supreme Court applicable in the two-year interval between Escobedo and Miranda, the statement which Frazier made was admissible in evidence. Esco-bedo is specific as to what it decides, and Johnson v. State of New Jersey, supra, is" }, { "docid": "8453924", "title": "", "text": "lawyer was present in police headquarters, insistently demanding access to his client. One time, through opening doors, the lawyer and client actually got a glimpse of each other, but their persistent demands and requests to consult were as persistently refused until after a confession had been obtained. The Supreme Court held, of course, that the suspect should have been allowed to speak to his lawyer who was present for that purpose and who was actively asking, himself, to speak to his client. Denial of the right to consult his attorney was held, under those circumstances, to have been a denial of due process. “Here, we have no such circumstances. Davis, advised that he could consult an attorney if he wished, sought only to have his sister come to see him. The police did all that they could to assist him in the realization of that wish. When there was no request of legal assistance and when the police did all that reasonably might be expected of them to facilitate the prisoner’s seeing the one person he wished to see, it cannot be held that the police unreasonably deprived him of his right to counsel.” The sharp dissenting opinion of former Chief Judge Sobeloff manifestly indicates that the majority interpreted Esco-bedo as being limited to the facts of that case. Relying upon the California case of People v. Dorado, supra, Judge Sobe-loff at least intimates that the request for counsel at a time when the party interrogated may be characterized as in the “accusatory” stage is unnecessary. On the retroactive application of Esco-bedo, Judge Sobeloff expresses the view that since other federal and state courts have held Gideon v. Wainwright, 372 U. S. 335, 83 S.Ct. 792, 9 L.Ed.2d 799, to be retroactive, Escobedo should be accorded the same treatment. While we have no Virginia or Fourth Circuit decision on the retroactive effect of Esco-bedo (other than as noted in Judge Sobe-loff’s dissenting opinion in Davis), we recognize that the Fourth Circuit has held Mapp v. Ohio, 367 U.S. 643, 81 S. Ct. 1684, 6 L.Ed.2d 1081, to be entitled to" }, { "docid": "21412437", "title": "", "text": "377 U.S. 201, 84 S.Ct. 1199, 12 L.Ed.2d 246, the Third Circuit Court of Appeals decided in United States ex rel. Russo v. State of New Jersey, and United States ex rel. Bisig-nano v. State of New Jersey, 1965, 351 F.2d 429, that “under certain circumstances, the right to counsel attaches at the interrogation level” and “where the right attaches any confession obtained in the absence of counsel must be suppressed independent of any issue of the voluntariness of the confession” irrespective of whether the prisoner requested counsel at the interrogation stage. An effective waiver of the accused’s right to counsel at the interrogation stage can exist only where the record shows, or there is an allegation and evidence that he was offered counsel, but intelligently and understandingly rejected the offer. Whether the police interrogation of petitioner was accusatory instead of investigatory in purpose, and whether the statement obtained from him in the course thereof was tainted by an unconstitutional deprivation of his right to counsel are questions whose answers depend upon a disclosure of the circumstances surrounding the making of the statement. The facts upon which such circumstances may be ascertained have neither been pleaded nor offered in evidence. The pending application for the writ, insofar as it relates to petitioner’s contention that he was denied his constitutional right to the assistance of counsel, is merely a discussion of Esco-bedo and of the opinions of other courts in which Escobedo has been cited, without mention of the facts upon which petitioner would parallelize the case at bar with those in Escobedo or Russo-Bisig-nano (supra). In his decision upon the motion to dismiss the State post-conviction proceedings, Judge Kolovsky stated that he had examined such portions of the trial record as he deemed necessary for the disposition of the motion, and that it revealed that “the issue of the voluntariness of the confession was fully litigated, fully dealt with” and that “[a]lthough this present issue was apparently not raised on appeal, it could have been. The alleged error, the alleged misconduct of the police in taking a statement despite the" }, { "docid": "23662552", "title": "", "text": "applying either Massiah or Esco-bedo in a case involving an income tax investigation. It is necessary accordingly to consider rather precisely what was held in both cases and their impact upon a case of this nature. In Massiah the defendant, under indictment for violation of the narcotic laws, had retained counsel and was free on bail when, out of the presence of his attorney, he made incriminating statements to a co-defendant, who, without Massiah’s knowledge, had agreed to become a witness for the Government. The statements were overheard by federal agents who had installed radio equipment in the co-defendant’s car. The court, in referring to the guarantee of the Sixth Amendment, said: “We hold that the petitioner was denied the basic protections of that guarantee when there was used against him at his trial evidence of his own incriminating words, which federal agents had deliberately elicited from him after he had been indicted and in the absence of his counsel.” (377 U.S. at 206, 84 S.Ct. at 1203). In Escobedo the defendant made incriminating statements during a period of police interrogation after he was arrested and after his request to see his attorney had been denied. In reversing his conviction, the Court said: “We hold, therefore, that where, as here, the investigation is no longer a general inquiry into an unsolved crime but has begun to focus on a particular suspect, the suspect has been taken into police custody, the police carry out a process of interrogations that lends itself to eliciting incriminating statements, .the suspect has requested and been denied an opportunity to consult with his lawyer, and the police have not effectively warned him of his absolute constitutional right to remain silent, the accused has been denied ‘the Assistance of Counsel’ in violation of the Sixth Amendment to the Constitution as ‘made obligatory upon the States by the Fourteenth Amendment,’ Gideon v. Wainwright, 372 U.S. [335], at 342, [83 S.Ct. 792, at 795, 9 L.Ed.2d 799], and that no statement elicited by the police during the interrogation- may be used against him at a criminal trial.” (378 U.S." }, { "docid": "22721279", "title": "", "text": "that Williams was being represented in Davenport by Kelly and in Des Moines by McKnight. Yet he purposely sought during Williams’ isolation from his lawyers to obtain as much incriminating information as possible. Indeed, Detective Leaming conceded as much when he testified at Williams’ trial: “Q. In fact, Captain, whether he was a mental patient or not, you were trying to get all the information you could before he got to his lawyer, weren’t you? “A. I was sure hoping to find out where that little girl was, yes, sir. “Q. Well, I’ll put it this way: You was [sic] hoping to get all the information you could before Williams got back to McKnight, weren’t you? “A. Yes, sir.” The state courts clearly proceeded upon the hypothesis that Detective Leaming’s “Christian burial speech” had been tantamount to interrogation. Both courts recognized that Williams had been entitled to the assistance of counsel at the time he made the incriminating statements. Yet no such constitutional protection would have come into play if there had been no interrogation. The circumstances of this case are thus constitutionally indistinguishable from those presented in Massiah v. United States, supra. The petitioner in that case was indicted for violating the federal narcotics law. He retained a lawyer, pleaded not guilty, and was released on bail. While he was free on bail a federal agent succeeded by surreptitious means in listening to incriminating statements made by him. Evidence of these statements was introduced against the petitioner at his trial, and he was convicted. This Court reversed the conviction, holding “that the petitioner was denied the basic protections of that guarantee [the right to counsel] when there was used against him at his trial evidence of his own incriminating words, which federal agents had deliberately elicited from him after he had been indicted and in the absence of his counsel.” 377 U. S., at 206. That the incriminating statements were elicited surreptitiously in the Massiah case, and otherwise here, is constitutionally irrelevant. See ibid.; McLeod v. Ohio, 381 U. S. 356; United States v. Crisp, 435 F. 2d 354," }, { "docid": "21412448", "title": "", "text": "fractured leg sustained in his attempt to avoid arrest, that extradition proceedings would be necessary and he was requested to sign a waiver. He expressed reluctance to comply and requested and was granted the opportunity to speak with his New Jersey attor ney, who advised him to waive extradition, which he accordingly did. Wade was thereafter transported to police headquarters in Paterson, New Jersey, where he conferred with his wife and a friend, and received medical attention. Wade testified upon his trial that his retained attorney, one Morley, was present at Paterson police headquarters following the departure of Wade’s wife and friend, but prior to the interrogation of which he now complains. Although petitioner’s wife testified upon the trial, neither the friend, Jones, nor his attorney, Morley, was called to testify respecting the circumstances surrounding his interrogation at police headquarters. Petitioner failed to avail himself of the opportunity to present the testimony of his attorney respecting the reason for the attorney’s failure to remain during the interrogation. Thus the record conclusively discloses that Wade was not “deprived of counsel for any part of the pretrial proceedings”; nor was his confession involuntary. It is inconceivable that, having conferred with his own attorney prior to the interrogation, he was uninformed with respect to his right to remain silent. In Russo v. State of New Jersey, supra, decided more than four years after Wade’s conviction, the Third Circuit Court of Appeals extended Escobedo to a case in which the defendant had not requested counsel, and held that “[a]t every other stage of the proceedings at which a right to counsel attaches, the right does not depend on a request for counsel nor can it be presumed that failure to request counsel constitutes a waiver of that right.” Russo is obviously inapposite to the case at bar because Wade had counsel and consulted with counsel before interrogation; also because Russo, as well as Escobedo, may not be retrospectively applied. In Linkletter v. Walker, June 7, 1965, 381 U.S. 618, 85 S.Ct. 1731, 1742, which held Mapp v. Ohio, 367 U.S. 643, p. 637, 81" }, { "docid": "3260594", "title": "", "text": "boy did it, and he had told that he did it, that is, admitted the murder, to cover up for the other boy. This, of course, was not a confession, but a disclaimer of the crime. The account of this conversation did not occur during direct examination, but was brought out by the defense on cross. These are all the statements or admissions alleged to have been made by petitioner that were introduced into evidence at his trial. In the State Court, petitioner, before trial, moved to suppress the admissions made to the police officers on the grounds that he was interrogated without benefit of counsel, that he was not warned of his constitutional rights, and that he lacked the mental capacity to comprehend the nature of his acts. ESCOBEDO v. ILLINOIS: Escobedo v. State of Illinois, 378 U.S. 478, 84 S.Ct. 1758, 12 L.Ed.2d 977 (1964), is relied upon by petitioner to support his contention that the confessions were not admissible because made in the absence of counsel. The facts in Escobedo v. State of Illinois, supra, show that Escobedo was arrested early the next morning after his brother-in-law was shot and interrogated until sometime late in the afternoon, when his lawyer obtained his release under a state court writ of habeas corpus. Ten days later he was again taken into custody between 8:00 p. m. and 9:00 p. m. On this occasion Escobedo repeatedly requested to talk to his lawyer and once saw him through an open door but was told by the police that his lawyer did not want to see him. During this same time petitioner’s lawyer was attempting to see him but was told by the police that he could not see petitioner until the police were through interrogating him. During this later interrogation, Escobedo confessed, and the Court in holding it inadmissible said: “We hold, therefore, that where, as here, the investigation is no longer a general inquiry into an unsolved crime but has begun to focus on a particular suspect, the suspect has been taken into police custody, the police carry out a" }, { "docid": "15862090", "title": "", "text": "OPINION OF THE COURT VAN DUSEN, Senior Circuit Judge. In this case we must decide whether the United States District Court for the District of Delaware abused its discretion by dismissing the habeas corpus petition of petitioner-appellant, Victor Nino, without holding an evidentiary hearing. This habe-as corpus petition asserted that petitioner’s prison sentence must be vacated because he was deprived of his constitutional right to effective assistance of counsel due to his attorney’s failure to file a Fed.R.Crim.P. 35(b) motion for reduction of sentence and/or that petitioner’s conviction must be overturned because he was deprived of his constitutional right to effective asistance of counsel due to his attorney’s failure to advise him about the deportation consequences of entering a guilty plea. For the reasons that follow, we conclude that the district court did not abuse its discretion and, therefore, we will affirm its judgment. I. On November 28, 1986, petitioner pled guilty in the United States District Court for the District of Delaware to one count of possession of cocaine with intent to distribute. This plea was pursuant to a written agreement, and was apparently motivated in large part by the fact that petitioner was caught by law enforcement officials with twenty-five pounds of cocaine in the car he was driving, and, after being given his Miranda warnings, confessed to a Delaware state police corporal and two Drug Enforcement Administration officers his knowledge of the presence of the cocaine in the car and involvement in a scheme to transport it from Miami to New Jersey in return for $4,000. Thereafter, petitioner was sentenced by the district court to, inter alia, ten years in prison. Petitioner’s conviction was affirmed by this court on direct appeal. On July 22, 1988, petitioner wrote a letter to the sentencing judge asking for a reduction in his sentence. The judge treated the letter as a Fed.R.Crim.P. 35(b) motion for reduction of sentence and denied it as untimely. On October 24, 1988, petitioner filed a habeas corpus motion to vacate sentence pursuant to 28 U.S.C. § 2255. This motion alleged that petitioner had been deprived of" }, { "docid": "22372313", "title": "", "text": "Court for New Jersey the federal habeas corpus proceeding before us, attacking his conviction on the grounds stated above. The District Court discharged the writ, holding that petitioner had failed to establish the involuntariness of the confession and that the State’s refusal to permit petitioner to communicate with counsel during the police inquiry did not deprive him of due process. 148 F. Supp. 98. The Court of Appeals affirmed, 240 F. 2d 844, and we granted certiorari to consider the constitutional questions presented. 354 U. S. 908. An independent examination of the record satisfies us that the District Court was justified in concluding that petitioner failed to substantiate the charge that his confession was coerced. Petitioner does not now contend to the contrary. He continues to contend, however, that under the Fourteenth Amendment his confession, even though voluntary, was nevertheless vitiated by police refusal to permit him to confer with counsel during his detention at Newark police headquarters, and that because his plea of non vult was based on the confession, the conviction must fall as well. The contention that petitioner had a constitutional right to confer with counsel is disposed of by Crooker v. California, ante, p. 433, decided today. There we held that California’s failure to honor Crooker’s request during a period of police interrogation to consult with a lawyer, as yet unretained, did not violate the Fourteenth Amendment. Because the present case, in which petitioner was denied an opportunity to confer with the lawyer whom he had already retained, sharply points up the constitutional issue involved, some additional observations are in order. We share the strong distaste expressed by the two lower courts over the episode disclosed by this record. Cf. Stroble v. California, 343 U. S. 181, 197-198. Were this a federal prosecution we would have little difficulty in dealing with what occurred under our general supervisory power over the administration of justice in the federal courts. See McNabb v. United States, 318 U. S. 332. But to hold that what happened here violated the Constitution of the United States is quite another matter. The difficulties" }, { "docid": "8453919", "title": "", "text": "to counsel could probably be terminated at this point. Nevertheless, because the petitioner is under a death sentence, we deem it appropriate to state the views of this Court as to the limiting effect of Esco-bedo v. State of Illinois, supra, and especially in the light of the factual situation herein presented. In Escobedo the defendant, after arrest, made several requests to see his retained counsel who, though present in the building to the knowledge of the police, was refused access to his client. Defendant was not advised of his right to remain silent and, after persistent questioning by the police, made an incriminatory statement to an Assistant State’s Attorney which was admitted in evidence at the trial. Defendant was convicted of murder and, on direct appeal, the Supreme Court of the United States reversed and remanded in a five to four decision. It is the broad language in Escobedo which has given rise to much confusion among attorneys and judges. For example, it is said (378 U.S. 490, 84 S.Ct. 1765): “We hold, therefore, that where, as here, the investigation is no longer a general inquiry into an unsolved crime but [1] has begun to focus on a particular suspect, [2] the suspect has been taken into police custody, the police carry out a process of interrogations that lends itself to eliciting incriminating statements, the suspect has requested and been denied an opportunity to consult with his lawyer, and [5] the police have not effectively warned him of his absolute constitutional right to remain silent, the accused has been denied ‘the Assistance of Counsel’ in violation of the Sixth Amendment to the Constitution as ‘made obligatory upon the States by the Fourteenth Amendment,’ Gideon v. Wainwright, 372 U.S., at 342, 83 S.. Ct., at 795, and that no statement elicited by the police during the interrogation may be used against him at a criminal trial.” With three exceptions, petitioner apparently comes within the foregoing holding. The exceptions are (1) petitioner did not request a lawyer at the time of or prior to giving his incriminatory statement, (2) petitioner’s counsel" }, { "docid": "1286690", "title": "", "text": "contends that he did not waive any rights by telling the officers that he was willing to talk; rather, he made statements to the police under the erroneous assumption that because he had no attorney present, nothing he said could be used against him. We do not find this argument persuasive. Defendant himself testified that he knew from his study of Miranda, supra, and Escobedo v. Illinois, 378 U.S. 478, 84 S.Ct. 1758, 12 L.Ed.2d 977 (1964), that he had a right to counsel. The state court found that petitioner’s knowledge of the law made “unquestionabl[e]” his understanding of his rights. Transcript of September 2, 1976, Hearing on Defendant’s Motion to Suppress, at 52. We can find no error in that conclusion. Cf. U. S. v. Frazier, 476 F.2d 891, 896-98 (D.C. Cir. 1973) (where there was no coercion and defendant had capacity to understand warnings, lower court did not err in concluding that government carried burden of showing knowing and voluntary waiver). According to the testimony of the last officer to question him, petitioner said that his lawyer had advised him to speak to the police. Since we must credit the officer’s testimony, the only legal conclusion we can reach is that, after speaking with an attorney, petitioner waived his right to have counsel present during questioning. This is not a case where the police continued to question a suspect after he requested counsel in an attempt to break down his resistance and elicit a confession. See, e. g., Maglio v. Jago, 580 F.2d 202, 205 (6th Cir. 1978). Rather, this is a case where petitioner requested a lawyer and was allowed to consult with one. After consulting with an attorney, he agreed to speak with police. Petitioner does not contend that his statements were obtained through coercion or duress; indeed, they were, in the traditional sense, voluntary statements. We hold that petitioner knowingly waived his right to counsel. We find the judgment of the district court to be clearly erroneous and accordingly reverse. . Petitioner also argued that certain evidence relating to the deviate sexual assault charge had" }, { "docid": "22349956", "title": "", "text": "connection with his hearings before the Committee on his 1937 application he was shown a letter containing various adverse statements about him from a New York attorney; that a member of the Committee promised him a personal confrontation with that attorney; but that the promise was never kept. Petitioner also alleged that he had been involved in litigation with another lawyer who had as his purpose “to destroy me”; that the secretary of the Committee was taking orders from that lawyer and that two members of the Committee were' “in cahoots” with that lawyer. The Appellate Division denied the petition without opinion and denied leave to appeal to the Court of Appeals. Willner thereupon sought leave to appeal to the Court, of Appeals and in an affidavit in support of his motion stated, “I was never afforded the opportunity of confronting my accusers, of having the accusers sworn and cross examining them, and the opportunity of refuting the accusations and accusers.” The Court of Appeals granted leave to appeal and the Clerk of that Court obtained from the Clerk of the Appellate Division the file in the case. Willner, in his brief before the-Court of Appeals, argued he had been denied his constitutional rights in that he had been denied confrontation of his accusers and.that, in, spite of the repeated attempts, he could not be sure of the Committee’s reasons for refusing to certify him for admission. The Court of Appeals, after oral argument, affirmed the order without opinion. 11. N. Y. 2d 866, 182 N. E. 2d 288. Thereafter, at Willner’s request, the Court of Appeals amended its remittitur to recite that “Upon the appeal herein there was presented and necessarily passed upon a question under the Constitution of the United States, viz: Appellant contended that he was denied due process of law in. violation of his constitutional rights under the Fifth and Fourteenth Amendments' of the Constitution. The Court of Appeals held that appellant was not denied due process ixi violation of such constitutional rights.” We granted certiorari, 370 U. S. 934. The issue presented is justiciable. “A" }, { "docid": "5746345", "title": "", "text": "statement which is primarily at issue here. During this interrogation by police officers, petitioner had not been advised of his right to counsel and his right to remain silent. Nor had he been told that his statements might be used against him. At the time that he agreed to make a statement, petitioner had been in police custody for seven hours, he had had little if any opportunity to sleep and he had not been given anything to eat. Shortly after 10:00 a. m. on April 22, 1959, petitioner began to provide answers to the questions of the Erie County District Attorney. Petitioner’s statement was not transcribed that day and, in fact, petitioner never did sign the statement. To this point, there had been no effort to arraign the petitioner. Nor had he been advised that he had already been charged with murder. At about 12:00 noon, petitioner was taken to the police garage where he was asked to identify the vehicle used in the robbery, which he did. At 2:00 p. m. on April 22,1959, some fourteen hours after he had been taken into police custody, petitioner was arraigned on the murder charge. Before discussing petitioner’s substantive claims, I must first decide whether or not the exhaustion requirements of 28 U.S.C. § 2254(b) have been satisfied for petitioner’s claim that his conviction was obtained in violation of the fourth amendment when the fruits of an illegal arrest were used as evidence against him. See Wong Sun v. United States, 371 U.S. 471, 83 S.Ct. 407, 9 L.Ed.2d 441 (1963). Although petitioner has alleged that all issues have been previously presented to the New York State courts, including the appeals courts, before they were presented in this federal court, and respondent has acknowledged that the exhaustion requirement has been met, it became apparent from my review of the state court record and briefs on appeal that this may not have been the case. . I then directed counsel for both parties to address this issue in supplemental memoranda which have now been filed with the court. As the Second Circuit" }, { "docid": "23662551", "title": "", "text": "thereafter the agents were no longer “merely attempting to determine appellant’s correct tax liability”, but rather were “attempting to elicit incriminating statements and documentary evidence from appellant for possible use in a subsequent criminal prosecution”. It is the Government’s position that it was Stapley’s duty as a revenue agent to audit appellant’s returns to determine the correct tax liability for civil purposes, and that it was Vitello’s duty as a special agent of the Intelligence Division to investigate alleged violations of matters relating to income tax and make a recommendation based upon his investigation. The Government contends that both agents were engaged in investigative ac tivities, and that the accusatorial stage had not been reached during any of their investigation. In support of his contention that his constitutional rights were violated, appellant relies primarily upon Massiah v. United States, 1964, 377 U.S. 201, 84 S.Ct. 1199, 12 L.Ed.2d 246, and Escobedo v. State of Illinois, 1964, 378 U.S. 478, 84 S.Ct. 1758, 12 L.Ed.2d 977. Counsel have not cited, nor have we found, any cases applying either Massiah or Esco-bedo in a case involving an income tax investigation. It is necessary accordingly to consider rather precisely what was held in both cases and their impact upon a case of this nature. In Massiah the defendant, under indictment for violation of the narcotic laws, had retained counsel and was free on bail when, out of the presence of his attorney, he made incriminating statements to a co-defendant, who, without Massiah’s knowledge, had agreed to become a witness for the Government. The statements were overheard by federal agents who had installed radio equipment in the co-defendant’s car. The court, in referring to the guarantee of the Sixth Amendment, said: “We hold that the petitioner was denied the basic protections of that guarantee when there was used against him at his trial evidence of his own incriminating words, which federal agents had deliberately elicited from him after he had been indicted and in the absence of his counsel.” (377 U.S. at 206, 84 S.Ct. at 1203). In Escobedo the defendant made incriminating statements" }, { "docid": "22672186", "title": "", "text": "to dispute the correctness of their confessions. In summation at the close of trial, defense counsel explicitly asserted that the confessions were truthful and pleaded for leniency on this ground. Cassidy’s lawyer stated to the jury: “Whatever is in this statement made by Stanley Cassidy is true. I know it is true. . . . [M]y reason for knowing that it is true is because of the meetings and consultations I have had with Stanley. We have been over this many, many times. “I know it is true because I know Chief Dube, and Chief Dube is a fine interrogator. If you do not answer truthfully, believe me, he will question you until he does get the truth, and Chief Dube got the truth.” Likewise Johnson’s lawyer told the jury: “The statement of Johnson was truthful and honest, because when that was finished, that was the end of it. “There were no threats. There was no attempt to evade. There was no trickery. Anything that Chief Dube asked him he answered honestly and truthfully.” The jury found Johnson and Cassidy guilty of murder in the first degree without recommendation of mercy, and they were sentenced to death. The convictions of Johnson and Cassidy became final six years ago, when the New Jersey Supreme Court affirmed them upon direct appeal and the time expired for petitioners to seek certiorari from the decision. There followed a battery of collateral attacks in state and federal courts, based on new factual allegations, in which petitioners repeatedly and unsuccessfully assailed the vol-untariness of their confessions. This proceeding arises out of still another application for post-conviction relief, accompanied by a fresh set of factual allegations, in which petitioners have argued in part that their confessions were inadmissible under the principles of Escobedo. The court below rejected the claim, holding that Esco-bedo did not affect convictions which had become final prior to the date of that decision, and it is this holding which we are principally called upon to review. In view of the standards announced one week ago concerning the warnings which must be given prior" }, { "docid": "11692816", "title": "", "text": "interrogation we have recited above, “I think I had better get a lawyer before I talk any more. I am going to get into trouble more than I am in now.” At the time involved in this case, there was no constitutional obligation on the part of a state to advise a suspect that he had a right to consult a lawyer during a police investigation, and there was no obligation to supply him with a lawyer. The interrogators had no duty, then, to follow up the suspect’s statement that he thought he had better get a lawyer, by asking him to elaborate it. He had made the statement, and knew whether he wanted to pursue it or not. He did not pursue it, but continued to make his statement. We conclude that, under the teachings of the Supreme Court applicable in the two-year interval between Escobedo and Miranda, the statement which Frazier made was admissible in evidence. Esco-bedo is specific as to what it decides, and Johnson v. State of New Jersey, supra, is specific as to the date upon which the stricter teachings of Miranda became applicable. It is not for this court, or for any federal court inferior to the Supreme Court of the United States, to expand the Supreme Court’s carefully defined ruling in Escobedo. The district court’s conclusion that Frazier’s statement had been unconstitutionally obtained was erroneous. Counsel in their briefs have devoted considerable attention to the question whether Frazier, by taking the witness stand in his own defense and testifying in substantial accord with what he had said in his signed statement, which had been admitted in evidence over his objection, waived the objection. Since we have concluded that the objection was without merit, it is unnecessary to decide and we do not decide whether there would have been a waiver if the objection had been valid. In the pre-trial stipulation upon which the case was heard in the district court, under the heading “Issues of Law,” issue No. 1 of the four stated issues was as follows: Was the search and seizure of" }, { "docid": "3260596", "title": "", "text": "process of interrogations that lends itself to eliciting incriminating statements, the suspect has requested and been denied an opportunity to consult with his lawyer, and the police have not effectively warned him of his absolute constitutional right to remain silent, the accused has been denied ‘the Assistance of Counsel’ in violation of the Sixth Amendment to the Constitution as ‘made obligatory upon the States by the Fourteenth Amendment,’ Gideon v. Wainwright, 372 U.S. [335] at 342, 83 S.Ct. [792] at 795 [9 L.Ed.2d 799], and that no statement elicited by the police during the interrogation may be used against him at a criminal trial.” The respondent takes the position that Escobedo v. State of Illinois, supra, is not applicable (1) because at the time of the confession the officers were conducting a general inquiry into the crime involved, (2) because petitioner did not request counsel, and (3) because the exclusionary rule set out therein should not be applied retroactively. The facts show that at the time of petitioner’s first incriminating statement to the officers, the officers had possession of the knife used in killing Mr. Caldwell; that Pete Redman had told the officers that the knife belonged to him but that he had loaned it to petitioner; and that petitioner had denied borrowing the knife. At this point it is obvious that the confrontation of Redman and petitioner was a logical step for the officer to take, for at this time Pete Redman had not been exculpated. It is true that the evidence does not show that petitioner was informed of his right to counsel before his alleged admissions (other than his confession to the prosecuting attorney) were made. Some of the cases have extended Escobe- do to the extent of saying that any admissions obtained without benefit of counsel during a post-arrest interrogation are excluded, even though counsel had not been requested. Other courts have held to the contrary. There are these differences between Escobedo and the case under consideration: Here, petitioner did not request an opportunity to consult with counsel; and perhaps equally important, the crucial admission alleged" }, { "docid": "22963111", "title": "", "text": "to counsel attaches at the interrogation level. These cases hold that where the right attaches any confession obtained in the absence of counsel must be suppressed independent of any issue of the voluntariness of the confession. In Massiah, the petitioner had already been indicted and was free on bail. Massiah’s alleged partner in crime agreed to cooperate with the police. By prearrangement with the police, a radio transmitter was installed in the partner’s automobile, thereby enabling the police to hear conversations conducted in the car. The partner talked with Massiah in the car and obtained incriminating statements from him. The Supreme Court held that the statements were inadmissible since the police practice offended Massiah’s right under the Sixth Amendment to the protection of counsel, relying on the concurring opinions in Spano, supra. The majority opinion treated this surreptitious- questioning as an interrogation by the police and held that at this point in the proceedings, i. e. post-indictment, Massiah had the right to the assistance of counsel. In Escobedo, the Supreme Court extended the right to counsel to a person who had not been indicted or arraigned, but who had been taken into custody and interrogated by the police at the police station. Escobedo had an attorney and had conferred with him a few days prior to his interrogation at the police station. During his detention by the police Esco-bedo’s attorney was present in the building and attempted to speak to his client but was denied access to him by the police. Escobedo also requested permission to see his counsel, but the police denied that request. The Supreme Court stated: “We hold, therefore, that where, as here, the investigation is no longer a general inquiry into an unsolved crime but has begun, to focus on a particular suspect, the suspect has been taken into police custody, the police carry out a process of interrogations that lends itself to eliciting incriminating statements, the suspect has requested and been denied an opportunity to consult with his lawyer, and the police have not effectively warned him of his absolute conswcutional right to remain silent," }, { "docid": "15308452", "title": "", "text": "Peyton, 383 F.2d 709 (4th Cir. 1967). Nor should this circumstance preclude the determination of the validity of his imprisonment under the presently effective sentences. Ibid. See also United States ex rel. Watson v. Myers, 250 F. Supp. 292 (E.D.Pa.1966). We come, therefore, to the question of whether both of the concurrent sentences which petitioner is now serving are critically infected by constitutional violations. First as to the forgery conviction: I In 1958 petitioner was charged with attempting to pass a forged check for $10.00 in an Ogden city store. He entered a plea of guilty to the charge and was subsequently sentenced to one to twenty years in prison. During the entire proceeding he was without the benefit of counsel. He later procured counsel and sought to withdraw the plea of guilty but his motion to this end was denied. The essential issue is whether petitioner knowingly, intelligently and voluntarily waived his right to have appointed counsel. Petitioner makes two basic arguments: (1) That he was never informed of his right to have appointed counsel provided at state expense, and (2) that he relied upon his father’s statement that a promise had been made by the probation officer that probation would be granted if he would plead guilty. Respondent insists that petitioner was informed of his right to have appointed counsel and that no promise was or could have been made by the probation officer. I find that while petitioner was indeed informed of his right to be represented by counsel, he was not advised that if he could not procure one through his own resources the court would appoint a lawyer for him. On the contrary, the evidence is clear that the defendant had tried unsuccessfully to get his father to obtain a lawyer for him because he himself had no means to obtain one, and did not understand that the court would see that he got one even though he had no money. The question of who would pay the expense was very important since it is reasonably clear that he could not have hired an attorney" }, { "docid": "2137176", "title": "", "text": "federally protected rights to a speedy trial under the Sixth Amendment, against eruel and unusual punishment under the Eighth Amendment, and to due process and equal protection of the laws under the Fourteenth Amendment, were violated when: (1) the probation officer failed to inform the court of petitioner’s statement that he was guilty only of manslaughter, thereby permitting him to be sentenced for murder in the second degree (due process); (2) he was denied his statutory right of allocution when his lawyer interposed a plea of leniency on his behalf, thereby foreclosing him from personally replying to the court’s inquiry and making known his contention (due process) ; (3) the Trial Court delayed for four years the disposition of his state coram nobis application, although it eventually decided in his favor (speedy trial, cruel and unusual punishment, due process and equal protection) • (4) the Appellate Division granted the District Attorney additional time beyond the ninety days permitted by statute to perfect the State s appeal from the order sustaining the coram nobis application (equal protection); and (5) in violation of section 545 of the New York Code of Criminal Procedure petitioner was kept in custody despite the fact that in sustaining his coram nobis application no provision was made for a new trial (due process). The Court finds that none of these contentions entitles petitioner to his release under a Federal writ of habeas corpus. Assuming arguendo that petitioner did tell the probation officer he was not guilty of murder in the second degree, and further that the latter failed to apprise the court of his contention, this presents no constitutional infirmity, A defendant who has been convicted and awaits the imposition of sentence has no constitutional right to a presentence report; if, as a matter of discreción, one ordered by a court, the inclusion or exclusion of any statement by a defendant furnishes no basis for a constitutional attack upon the validity of the-sentence imposed. Moreover, since this. Court, upon petitioner’s last application, for a 0f habeas corpus, found that petitioner’s plea of guilty was freely and', voluntarily" } ]

[ { "docid": "5293300", "title": "", "text": "can only speculate about it expert testimony is required to explain the process”). The requirement that plaintiffs produce expert medical evidence in order to prove proximate causation of medical injury also is often expressed in the context of medical malpractice claims. See Milano v. Freed, 64 F.3d 91, 95 (2d Cir.1995); Hegger v. Green, 646 F.2d 22, 28-29 (2d Cir.1981); Monahan v. Weichert, 82 A.D.2d 102, 107, 442 N.Y.S.2d 295 (4th Dep’t 1981). As previously indicated, however, the principle is by no means limited to the medical malpractice context. See Duffen v. State, 245 A.D.2d 653, 653, 665 N.Y.S.2d 978 (3rd Dep’t 1997) (“Whether the claim is considered to assert a cause of action sounding in negligence or one for malpractice, there cannot be serious doubt that the issue of [w]hether and to what'extent ... medications contributed to claimant’s condition is not a matter of common knowledge which a fact finder' could decide in the absence of expert testimony.”) (internal quotation marks and citation omitted) (alteration in original). Applying this principle in the context of plaintiffs’ claim that defendants’ conduct caused Mrs. Barnes’ miscarriage, we conclude as did the district court that, particularly in the circumstances of the present case, a miscarriage is the sort of complex injury for which expert medical evidence of causation is required. In view of the uncertain timing of the beginning and ending of Mrs. Barnes’ pregnancy, the unclear nature of the physical contact she allegedly suffered at the Housing Court, and the fact that Mrs. Barnes was physically assaulted by others subsequent to the incident at the Housing Court but possibly prior to .the miscarriage, we do not see how a jury could rationally decide causation in this' instance without the aid of expert testimony. Cf. Collette v. Collette, 177 Conn. 465, 418 A.2d 891, 894 (1979) (holding that it was error for a court to permit a layperson to testify as to the cause of a miscarriage because “evidence of the cause of the miscarriage, or more broadly, of the medical effect upon the human system of the infliction of injuries, is generally" } ]

[ { "docid": "12618920", "title": "", "text": "complex causation issues, including medical device cases, because without it the jury is left to speculate on medical issues with which the average person is unfamiliar. See Hughes v. Stryker Sales Corp., No. 08-CV-655, 2010 WL 1961051, at *5 (S.D.Ala. May 13, 2010) (“In the typical case involving a complex medical device, the absence of expert testimony would force a jury to engage in speculation and conjecture on issues of defect and causation .... Therefore, courts routinely require expert testimony in such matters.”), affd sub nom. Hughes v. Stryker Corp., 423 Fed.Appx. 878 (11th Cir.2011). Thus, summary judgment is appropriate where required expert testimony is absent from the record. See C.W. ex rel. Wood v. Textron, Inc., 807 F.3d 827, 838 (7th Cir.2015) (“With no experts to prove causation ... the appellants cannot prove their toxic-tort case ... [and] summary judgment ... was proper.”) (citation omitted); Hendrix ex rel. G.P. v. Evenflo Co., 609 F.3d 1183, 1203 (11th Cir.2010) (“[Without this [expert] testimony there is no genuine dispute of material fact regarding causation ... [and] the district court’s grant of summary judgment on [plaintiffs] sole remaining claim was appropriate.”); Ronwin v. Bayer Corp., 332 Fed.Appx. 508, 514 (10th Cir.2009) (affirming district court conclusion that “absent expert testimony on causation, summary judgment was appropriate”); In re Viagra Prods. Liab. Litig., 658 F.Supp.2d 950, 956 (D.Minn.2009) (“[A]bsent an admissible general causation opinion, Plaintiffs’ claims necessarily fail and [defendant’s] motion for summary judgment must be granted.”); Kilpatrick v. Breg, Inc., No. 08-CV-10052, 2009 WL 2058384, at *11 (S.D.Fla. June 25, 2009) (“In the absence of any reliable expert evidence on causation, summary judgment must be granted in favor of [defendant].”), aff'd, 613 F.3d 1329 (11th Cir.2010). Here, Defendants argue that expert testimony is required to prove that Mirena can spontaneously perforate the uterus absent any injury at insertion because “[t]hat question necessarily focuses on scientific questions beyond the understanding of lay jurors,” (Ds’ Mem. at 8), and note that Plaintiffs recognized the complexity of the issue of secondary perforation when they attempted to submit expert testimony on the subject, (id. (citing Doc. 2780," }, { "docid": "3299399", "title": "", "text": "of this kind as “de minimis.” See McCann, 984 F.2d at 672. Therefore, defendants would at most be entitled to a new trial. See id. at 671. Because we have already concluded that a new trial is necessary due to the erroneous exclusion of testimony, we need not rule on the sufficiency of the evidence. However, some observations about the evidence may aid the parties on retrial. B. To establish a claim for medical malpractice in Tennessee, a plaintiff must show, by a preponderance of evidence, that the defendant breached the standard of care, and that the breach proximately caused the plaintiffs injuries. Tenn.Code Ann. § 29-26-115(a) (Supp.2006); Kilpatrick v. Bryant, 868 S.W.2d 594, 598-99 (Tenn.1993). The Tennessee Supreme Court counsels that causation “is a matter of probability, not possibility, and in a medical malpractice case, such must be shown to a reasonable degree of medical certainty.” Kilpatrick, 868 S.W.2d at 602. Thus, a plaintiff must show that: (1) there is a known medical nexus between the conduct and the harm suffered, and (2) the physician’s conduct — and not an independent factor — more likely than not caused the injury. See id. In toxic tort and negligent prescription cases, these two facets of causation are often referred to, respectively, as general and specific causation. See McClain v. Metabolife Int’l, Inc., 401 F.3d 1233, 1239 (11th Cir.2005); Ruggiero v. Warner-Lambert Co., 424 F.3d 249, 252 n. 1 (2d Cir.2005) (explaining the distinction between “general” and “specific” causation and recognizing that a failure to prove either undermines a negligence claim). The Husses relied primarily on the expert testimony of Dr. Carlton to establish causation. See Stokes v. Leung, 651 S.W.2d 704, 706 (Tenn.Ct.App.1982) (“[I]n medical malpractice cases, negligence and causation are ordinarily required to be proved by expert medical testimony.”). Dr. Carlton opined that Terbutaline is a “known cause” of cardiomyopathy, and that it more likely than not caused or contributed to Barbara’s development of cardiomyopathy. In other words, he testified to both “general” and “specific” causation. This testimony lacked an adequate basis in science or fact. Major sources of medical" }, { "docid": "1636130", "title": "", "text": "were linked to Lipitor. Plaintiff claims that his muscle pain did not abate when he discontinued Lipitor. He claims that as a result of taking Lipitor, he has suffered from “grievous injuries, including, but ... not limited to, muscular weakness, severe muscle pain, multiple myalgias, myositis, a myopathic syndrome, and permanent disability.” Compl. H 3. Plaintiff alleges that Defendants knew that Lipitor had the potential to cause these permanent side effects, but that Defendants inadequately warned the FDA, doctors, and consumers of these risks. Plaintiffs claims include defective design, failure Oto warn, negligence, breach of express warranties, breach of implied warranties, and unjust enrichment. He seeks compensatory, punitive, and exemplary damages. II. Toxic Tort Litigation & Causation Toxic tort litigation is a subset of products liability in which “cases ... are won or lost on the strength of the scientific evidence presented to prove causation.” Rider v. Sandoz Pharm. Corp., 295 F.3d 1194, 1197 (11th Cir.2002). Recently, the United States Court of Appeals for the Eleventh Circuit noted that “toxic tort cases usually come in two broad categories: first, those cases in which the medical community generally recognizes the toxicity of the drug or chemical at issue, and second, those cases in which the medical community does not generally recognize the agent as both toxic and causing the injury plaintiff alleges.” McClain v. Metabolife Int'l Inc., 401 F.3d 1233, 1239 (11th Cir.2005). In the first type of toxic tort case, the Court “need not undertake an extensive Daubert analysis on the general toxicity question when the medical community recognizes that the agent causes the type of harm a plaintiff alleges.” Id. In other words, general causation is already established, leaving only specific causation at issue for trial. In the second type of case, the plaintiff bears the burden of establishing both general and specific causation. The parties dispute which category the instant case falls into. Plaintiff argues that because the medical community recognizes that Lipitor (and statins in general) cause muscle-related ailments, general causation is already established. Defendants, on the other hand, insist that while the medical community recognizes that" }, { "docid": "19901798", "title": "", "text": "123 L.Ed.2d 317 (1993); Goenaga v. March of Dimes Birth Defects Found., 51 F.3d 14, 18 (2d Cir.1995). . Ruggiero, 424 F.3d at 252 n. 1; see also Silent Injury, 369 F.Supp.2d at 401-02. . Id. (emphasis in original); see also Silent Injury, 369 F.Supp.2d at 402 (\"General causation is established by demonstrating, often through a review of scientific and medical literature, that exposure to a substance can cause a particular disease (e.g., that smoking cigarettes can cause lung cancer). Specific, or individual, causation, however, is established by demonstrating that a given exposure is the cause of an individual's disease (e.g., that a specific plaintiff's lung cancer was caused by his smoking).”) (internal citations and quotations omitted). . See id. . See, e.g., Wills v. Amerada Hess Corp., 379 F.3d 32, 46 (2d Cir.2004) (“[WJhere an injury has multiple potential etiologies, expert testimony is necessary to establish causation”). . See, e.g., Rink v. Cheminova, Inc., 400 F.3d 1286, 1295-96 (11th Cir.2005) (applying Florida law) (affirming summary judgment in favor of defendant because without expert testimony, \"proof that defective Fyfanon caused the injuries alleged by the putative class representatives was lacking”); Emody v. Medtronic, Inc., 238 F.Supp.2d 1291, 1295 (N.D.Ala.2003) (applying Alabama law) (granting summary judgment in favor of defendant since \"[a]n essential element of all product liability cases is expert testimony, passing Daubert muster, that a defect was the medical cause of plaintiff's claimed injuries”) (internal citations omitted); Valentine v. PPG Indus., Inc., 821 N.E.2d 580, 588, 158 Ohio App.3d 615, 623 (2004) (affirming summary judgment in favor of defendant because \"[t]o prove the proximate cause of a medical condition, here, a brain tumor, expert medical testimony ordinarily is necessary\"); Sanchez v. Saturn Corp., 2004 WL 1948891, **2-3, 2004 Tenn. LEXIS 711, *6-*8 (Term. Aug. 31, 2004) (affirming judgment that plaintiff failed to establish causation due to absence of expert testimony as \"[p]roof of causation requires expert testimony in all but the most obvious cases''); Christian v. Gray, 65 P.3d 591, 601-02 (Okla.2003) (“When an injury is of a nature requiring a skilled and professional person to determine cause and" }, { "docid": "20168426", "title": "", "text": "of that duty, and (3) injury to the plaintiff that was proximately caused by the breach.” Hedgepeth v. Whitman Walker Clinic, 22 A.3d 789, 793 (D.C.2011). To prove causation in a toxic tort case, the plaintiff must show general and specific causation. Young v. Burton, 567 F.Supp.2d 121, 138 (D.D.C.2008). That is, “the plaintiff must show that the toxicant in question is capable of causing the injury complained of (general causation) and must further prove that the toxicant in fact did cause that injury in the present case (specific causation).” Young, 567 F.Supp.2d at 138 (internal quotations marks and alterations omitted); see also Reyes v. Keith Mach. Corp., Civ. No. 09-5309(DRD), 2011 WL 2413666, at *3 n. 1 (D.N.J. June 8, 2011) (“Absent ‘proof of cause, there is no connection between the injury complained of and the fault of anyone.’ ”) (quoting J.D. Lee & Barry A. Lin dahl, Modern Tort Law: Liability and Litigation, § 4.01 at 127 (rev. ed.2000)). The plaintiff must first meet her burden to prove general causation. Only then can the plaintiff offer evidence concerning specific causation. Raynor v. Merrell Pharm., 104 F.3d 1371, 1376 (D.C.Cir. 1997). In some cases, District of Columbia law requires plaintiffs to establish causation in tort cases through expert testimony. Hull v. Eaton Corp., 825 F.2d 448, 455 (D.C.Cir.1987) (collecting cases); Davis v. Bud & Papa, Inc., 885 F.Supp.2d 85, 89-90 (D.D.C.2012). “The purpose of expert opinion testimony is to avoid jury findings based on mere speculation or conjecture.” Washington v. Wash. Hosp. Ctr., 579 A.2d 177, 181 (D.C.1990). Expert testimony is required when “the subject presented is so distinctly related to some science, profession, business or occupation as to be beyond the ken of the average layman.” Hull, 825 F.2d at 455 (internal quotation marks and citation omitted); accord Lasley v. Georgetown Univ., 688 A.2d 1381, 1385 (D.C.1997) (“To allow a jury of laymen, unskilled in medical science, to attempt to [determine causation without medical opinion testimony in a medically complicated case] would permit the rankest kind of guesswork, speculation and conjecture.”). Expert testimony is not required if the" }, { "docid": "3977102", "title": "", "text": "such injuries. Id. at 185. Similarly, another medical expert retained by the PSC testified at his deposition that it is important to investigate alternative causes of injury when making a diagnosis. Deposition of George Kaysen, M.D. at 38-39, 41. The ability to perform a differential diagnosis is clearly beyond the ability or experience of a lay person. For these reasons, this Court finds that the Baycol cases are not analogous to vehicle accident or other personal injury actions which do not require a differential diagnosis. Rather, this Court joins with those courts that have held personal injury cases involving pharmaceuticals, toxins or medical devices involve complex questions of medical causation beyond the understanding of a lay person. See e.g. McClain v. Metabolife Int'l, Inc., 193 F.Supp.2d 1252, 1258 (N.D.Al.2002) (expert is required to prove causation in this case, as interplay between ephedrine, caffeine and the other ingredients in Metabolife 356, the varying states of pre-existing ill-health of Plaintiffs, and their various ultimate injuries is “complex and technical in nature”); Sanderson v. Int’l Flavors and Fragrances, Inc., 950 F.Supp. 981, 985 (C.D.Cal.1996)(case involving exposure to aldehydes involved scientific issues beyond the experience of laymen); Blinn v. Smith & Nephew Richards, Inc., 55 F.Supp.2d 1353, 1361 (M.D.Fla.1999) (case involving bone screw required expert testimony to prove defect and causation); Wintz v. Northrop Corporation, 110 F.3d 508, 515 (7th Cir.1997) (applying Illinois law, case involving in útero exposure to bromide required expert testimony to prove causation); In re: Propulsid Products Liability Litigation, 261 F.Supp.2d 603, 618 (E.D.La.2003)(summary judgment in favor of defendant appropriate where plaintiff failed to submit admissible expert testimony to prove plaintiffs injuries caused by ingestion of Propulsid); Graham v. American Cyanamid Company, 350 F.3d 496, 507 (6th Cir.2003) (whether oral polio vaccine caused injury involved technical and scientific issues, expert testimony needed to prove causation); Sayer v. Williams, M.D., 962 P.2d 165, 167 (Wyo.1998) (expert testimony necessary to prove doctor’s negligence caused injury where plaintiffs high blood pressure or Hepatitis C could have caused the symptoms of which plaintiff complained). The above analysis applies equally to the motion of Plaintiff" }, { "docid": "12618912", "title": "", "text": "(Doc. 3249). The parties agree that proof of general causation—“whether the type of injury at issue can be caused or exacerbated by the defendant’s product,” Ruggiero v. Warner-Lambert Co., 424 F.3d 249, 251 n.1 (2d Cir.2005) (emphasis in original)—is necessary in a products liability case such as this. The “type of injury at issue” is perforation, embedment or migration absent injury to the uterus upon insertion— the concept Plaintiffs call secondary perforation or spontaneous migration. The parties do not dispute that the Mirena label has always warned of the potential risk of perforation upon or related to insertion. Plaintiffs, however, argue that the label is inadequate because it did not warn of perforation unrelated to insertion, which they must show exists as a phenomenon in order to prove general causation and prevail. Thus, “in the context of these cases, evidence of general causation means evidence that secondary perforation can occur.” See Mirena, 169 F.Supp.3d at 435 n. 28, 2016 WL 890251, at *23 n. 28. Plaintiffs do not dispute that each claim in this case requires such proof. In their opposition papers Plaintiffs note that “on-going failure to warn [of spontaneous perforation] underlies every lawsuit in the Mirena MDL,” (Ps’ Mem. at 8), and that “Bayer’s motion seeks to terminate every plaintiffs recovery rights in this MDL,” (id. at 35). They do not argue that certain claims can survive even without evidence of the existence of secondary perforation. The parties disagree, however, on whether general causation can be proven' without expert testimony. Defendants argue that expert testimony is required, and thus that there is an absence of sufficient evidence for a jury to find that Plaintiffs have proven causation. (Ds’ Mem. at 7-12.) Plaintiffs do not dispute that they must prove general causation for all of their claims, but contend that they can meet their burden of introducing sufficient evidence to create a genuine issue of material factual on that issue through certain documents and testimony that they argue amount to admissions by Defendants that secondary, perforation exists, and that such admissions are an adequate substitute for expert testimony on" }, { "docid": "9917060", "title": "", "text": "2016 Opinion and Order. II. The District Court Properly Granted Summary Judgment to Defendant Bayer Having concluded that the District Court properly excluded Plaintiffs’ witnesses on general causation, we next turn to whether the District Court correctly granted summary judgment in favor of Defendant Bayer. We conclude that it did. As a preliminary matter, state law controls on the question of what evidence is necessary to prove an element of a state law claim, such as general causation. See Amorgianos v. Nat’l R.R. Passenger Corp., 303 F.3d 256, 268 (2d Cir. 2002); see also 29 Charles Alan Wright & Victor James Gold, Federal Practice & Procedure: Evidence § 6263 (2d ed.) (“[S]tate law controls where it makes a precondition to recovery in a medical-malpractice action the proffer of expert testimony to prove an element of the substantive-law claim, such as standard of care or causation.”). The District Court determined that all fifty states typically require expert testimony to prove causation where the causal relationship is outside the common knowledge of lay jurors. See In re Lipitor Mktg., Sales Practices & Prod. Liab. Litig., 227 F.Supp.3d 452, 469-77 (D.S.C. 2017) (surveying all States and U.S. territories); see also Barnes v. Anderson, 202 F.3d 150, 159 (2d Cir. 1999) (“Expert medical opin ion evidence is usually required to show the cause of an injury or disease because the medical effect on the human system of the infliction of injuries is generally not within the sphere of the common knowledge of the lay person.” (internal alterations and quotation marks omitted)). And Plaintiffs have not identified any state that does not require expert testimony in the circumstances at issue here. Nevertheless, Plaintiffs identify dicta from several cases suggesting that party admissions can sometimes substitute for expert testimony on general causation. See Plaintiffs’ Opening Br. at 48-51. We need not reach the question of whether party admissions could ever substitute for expert testimony. Assuming ar-guendo that they could, the putative admissions proffered by Plaintiffs are simply not enough to establish general causation. As the District Court correctly found, no reasonable juror could find general causation" }, { "docid": "12618939", "title": "", "text": "lay jury [does] not possess the experience or knowledge of the subject matter sufficient to enable them to reach an intelligent opinion without help.”) (alteration in original) (internal quotation marks omitted); Click v. Pilot Freight Carriers, Inc., 300 N.C. 164, 265 S.E.2d 389, 391 (1980) (“[W]here the exact nature and probable genesis of a particular type of injury involves complicated medical questions far removed from the ordinary experience and knowledge of laymen, only an expert can give competent opinion evidence as to the cause of the injury.”). Meade v. Parsley, No. 09-CV-388, 2010 WL 4909435 (S.D.W.Va. Nov. 24, 2010), is instructive. There plaintiffs argued that a product’s package inserts and warnings acknowledged a causal link between the drug and the alleged injuries. Id. at *7. The court noted that the plaintiffs had not cited any authority “for the proposition that a plaintiff in a pharmaceutical products liability case can satisfy his burden of proving general causation by relying on the defendant manufacturer’s drug label warnings,” id. and found that plaintiffs’ contention was “undermined by the general principle that causation evidence in toxic tort cases must be in the form of expert scientific testimony,” id. (citing Rider v. Sandoz Pharms. Corp., 295 F.3d 1194, 1197 (11th Cir.2002)). The court further held that the “drug[’s] label, which merely warns of [its] potential side-effects without explaining the scientific basis for the warning, [was] no substitute for expert testimony that establishes causation in terms of reasonable probability.” Id. Not only would it leave the jurors at sea to allow employees’ statements, taken out of context, to serve as admissions of general causation in an area that normally requires expert testimony, but as a policy matter it might stifle free discussion of adverse event reports and potential label changes, and discourage pharmaceutical companies and other manufacturers from open discourse, if such discussion might later be held to concede the issue of general causation. This danger is without any-compensating benefit, given that comments of corporate employees, unmoored from their context and created in the conduct of daily business rather than through the formal procedures applicable to" }, { "docid": "10585613", "title": "", "text": "scientific reliability.” Id. at 512-13 (internal quotation marks omitted). The district court’s determination that “[the toxicologist’s] testimony would not be helpful to the trier of fact” was also affirmed, provided that the witness was not a licensed physician or surgeon and “lacked sufficient expertise in PWS, birth defects, or bromide exposure, to qualify him to offer an expert opinion as to the cause of [the daughter’s] abnormalities.” Id. at 513. In sum, “[the toxicologist’s] experience, knowledge, and methodology simply were not sufficient to permit him to offer an expert opinion applying the principles of toxicology to a human being in this case.” Id. Again, unlike Westberry, the expert opinion proffered and challenged in Wintz was not based on sufficient information about the level of the plaintiffs exposure to the alleged toxin. Thus, the Fourth Circuit’s decision in Westberry is consistent with the rule observed among several circuit courts that the plaintiff in a toxic tort case bears the burden of demonstrating her “actual level of exposure” to the alleged toxin. Westberry, 178 F.3d at 263. See also, e.g., McClain v. Metabolife Int’l, Inc., 401 F.3d 1233, 1242 (11th Cir.2005) (requiring proof that the patient was “exposed to a sufficient amount of the substance in question to elicit the health effect in question” and “not simply proof of exposure to the substance”); Mitchell v. Gencorp Inc., 165 F.3d 778, 781 (10th Cir.1999); Wright v. Willamette Indus., Inc., 91 F.3d 1105, 1106 (8th Cir.1996). In the present, cases, the opinions of Plaintiffs’ causation experts are not based on sufficient facts or data about the level of Plaintiffs’ exposure to refrigerant gas to be reliable. Unlike the expert at issue in Westberry, Plaintiffs’ experts in the present cases did not consider the extent of Plaintiffs’ exposure to leaking refrigerant in forming their opinions on the alleged causal connection between the leak and Plaintiffs’ injuries. Without considering such information, the experts’ opinions as to specific causation, like those excluded in Allen and Wintz, are speculative at best and therefore unreliable and inadmissible. See Daubert, 509 U.S. at 590, 113 S.Ct. 2786 (requiring expert testimony" }, { "docid": "10224558", "title": "", "text": "form an expectation of safety). See also Walters v. Howmedica Osteonics Corp., 676 F.Supp.2d 44, 54 (D. Conn. 2009), citing Aspiazu v. Orgera, 205 Conn. 623, 630, 535 A.2d 338 (1987) (“Under certain circumstances, the Supreme Court of Connecticut has held that expert testimony is required to establish causation” including where it is difficult to discern the cause without expert testimony.) Here, explaining the effects of chemicals that are purportedly toxic when uncombined but relatively inert after combination and a curing period and allegedly toxic when miscombined, even after the curing period, much like explaining the effects of medicines on the human body in ' the cases cited above, requires expert testimony since it is outside the scope of a layperson’s knowledge. “[C]ases involving pharmaceuticals, toxins or medical devices involve complex questions of medical causation beyond the understanding of a lay person,” and thus expert testimony is required. In re Bay col Prods. Litig., 321 F.Supp.2d 1118, 1126 (D. Minn. 2004). Plaintiffs’ counter that expert testimony is not required in all product liability cases in Connecticut is true, but not their suggestion that the facts of this case are analogous to those in Johannsen v. Zimmer, Inc., No. 00-cv-2270 (DJS), 2005 WL 756509 (D. Conn. Mar. 31, 2005) (no expert testimony required to establish causation where the plaintiff had a hip replacement and subsequently suffered hip pain as the joint between the bone and the artificial hip loosened, which pain was alleviated through a second replacement surgery with a different brand of artificial hip). The facts of this case are not analogous to those in Johannsen, where the record left “no doubt about the tie between the plaintiffs injury and the failure of the prosthesis ... the record [was] sufficient to show that Johannsen’s hip failed and that it caused him pain and required a revision surgery.” Here, by contrast, the symptoms complained of by Plaintiffs could have other causes, including certain household chemicals or other items (several of which the Plaintiffs threw out the day before their home was to be inspected; see Ruling on Defendant’s Motion for Sanctions" }, { "docid": "12618918", "title": "", "text": "Cir.2002); see Rutigliano v. Valley Bus. Forms, 929 F.Supp. 779, 783 (D.N.J.1996), aff'd sub nom. Valley Bus. Forms v. Graphic Fine Color, Inc., 118 F.3d 1577 (3d Cir.1997). The parties agree, (Ds’ Mem. at 7-8; Ps’ Mem. at 34-35), and the substantive law across all relevant jurisdictions holds, (see Shayna S. Cook Decl. Ex. I), that where a causal link is beyond the knowledge or expertise of a lay jury, “expert testimony is required to establish cau sation.” Wills v. Amerada Hess Corp., 379 F.3d 32, 46 (2d Cir.2004); see, e.g., Show v. Ford Motor Co., 697 F.Supp.2d 976, 983 (N.D.Ill.2010) (“[Pjroducts liability cases that involve complex products beyond a lay jury’s understanding require expert testimony.”), aff'd, 659 F.3d 584 (7th Cir.2011); Brookshire Bros., Inc. v. Smith, 176 S.W.3d 30, 36 (Tex.App.2004) (“When a lay person’s general experience and common sense will not enable that person to determine causation, expert testimony is required.”); Wilhelm v. State Traffic Safely Comm’n, 230 Md. 91, 185 A.2d 715, 719 (1962) (“To allow a jury of laymen, unskilled in medical science, to attempt to answer such a [complex] question would permit the rankest kind of guesswork, speculation and conjecture.”). “[CJases involving pharmaceuticals, toxins or medical devices involve complex questions of medical causation beyond the understanding of a lay person,” and thus expert testimony is required. In re Baycol Prods. Litig., 321 F.Supp.2d 1118, 1126 (D.Minn.2004); see, e.g., Silverstein v. Procter & Gamble Mfg. Co., 700 F.Supp.2d 1312, 1316 (S.D.Ga.2009) (“[I]f the inference that the defendant’s product caused the plaintiffs injury is not a ‘natural inference that the juror could make through human experience ... medical expert testimony [is] essential to prove causation.’ ”) (alterations in original) (quoting Allison v. McGhan Med. Corp., 184 F.3d 1300, 1320 (11th Cir.1999)); Jones v. Ortho Pharm. Corp., 163 Cal.App.3d 396, 209 Cal.Rptr. 456, 460 (1985) (“The law is well settled that in a personal injury action causation must be proven within a reasonable medical probability based upon competent expert, testimony. Mere possibility alone is insufficient to establish a prima facie case.”). Expert testimony is required in cases involving" }, { "docid": "12618916", "title": "", "text": "speculation,” Fujitsu Ltd. v. Fed. Express Corp., 247 F.3d 423, 428 (2d Cir.2001) (internal quotation marks omitted). “A party asserting that a fact cannot be or is genuinely disputed must support the assertion by ... citing to particular parts of materials in the record, including depositions, documents, electronically stored information, affidavits or declarations, stipulations (including those made for purposes of the motion only), admissions, interrogatory answers, or other materials .... ” Fed. R. Civ. P. 56(c)(1). In the event that “a party fails ... to properly address another party’s assertion of fact as required by Rule 56(c), the court may,” among other things, “consider the fact undisputed for purposes of the motion” or “grant summary judgment if the motion and supporting materials—including the facts considered undisputed—show that the movant is entitled to it.” Fed. R. Civ. P. 56(e)(2), (3). B. Expert Testimony on Causation As in any products liability or personal injury action, Plaintiffs must prove causation—that the Defendants’ conduct (such as a failure to adequately warn) was the proximate cause of Plaintiffs’ injuries. See In re Bausch & Lomb Inc. Contacts Lens Sol. Prods. Liab. Litig., 693 F.Supp.2d 515, 520 (D.S.C.2010) (“[Causation is a required element in every product liability case.”), ajfd sub nom. Fenandez-Pineiro v. Bausch & Lomb, Inc., 429 Fed.Appx. 249 (4th Cir.2011) (per curiam); see also, e.g., Luttrell v. Novartis Pham. Corp., 894 F.Supp.2d 1324, 1340 (E.D.Wash.2012) (proximate cause in products liability has two elements—cause in fact and legal causation—under Washington law), aff'd, 555 Fed.Appx. 710 (9th Cir.2014); Moran v. Pfizer, Inc., 160 F.Supp.2d 508, 510-11 (S.D.N.Y.2001) (causation required element under New Jersey law); Porter v. Pfizer Hosp. Prods. Grp., Inc., 783 F.Supp. 1466, 1475 (D.Me.1992) (proof of causation required element of strict liability claims under Maine law); Mothershead v. Greenbriar Country Club, Inc., 994 S.W.2d 80, 89 (Mo.Ct.App.1999) (causation required element of failure to warn in products liability case under Missouri law). Generally, in products liability cases, “to establish causation, [plaintiffs] must offer admissible expert testimony regarding both general causation ... and specific causation.” Amorgianos v. Nat’l R.R. Passenger Corp., 303 F.3d 256, 268 (2d" }, { "docid": "10224557", "title": "", "text": "Rule 35 physician, show specific causation. The Connecticut Supreme Court has held that “[depending on the type of product at issue—namely, its complexity— expert testimony regarding product defect or causation may be required in order to make out a prima facie product liability case.” D’Ascanio v. Toyota Indus. Corp., 309 Conn. 663, 674, 72 A.3d 1019 (2013). The Supreme Court explained that expert testimony is- not required “only when the everyday experiences of a particular product’s users permits the inference that the product did not meet minimum safety ex-pections” but that, where a product’s complexity makes it impossible for an ordinary consumer to form an expectation of safety, expert testimony is required. Id. For example, Connecticut requires expert testimony to establish causation in cases involving drugs and their effects on the human body. Sullivan v. Pfizer, Inc., No. 3:14-CV-1374 (MPS), 2016 WL 868155, at *4 (D. Conn. Mar. 4, 2016) (requiring expert testimony on whether the drug Lipitor caused Plaintiffs severe peripheral neuropathy because the causal mechanism was too complex for an everyday user to form an expectation of safety). See also Walters v. Howmedica Osteonics Corp., 676 F.Supp.2d 44, 54 (D. Conn. 2009), citing Aspiazu v. Orgera, 205 Conn. 623, 630, 535 A.2d 338 (1987) (“Under certain circumstances, the Supreme Court of Connecticut has held that expert testimony is required to establish causation” including where it is difficult to discern the cause without expert testimony.) Here, explaining the effects of chemicals that are purportedly toxic when uncombined but relatively inert after combination and a curing period and allegedly toxic when miscombined, even after the curing period, much like explaining the effects of medicines on the human body in ' the cases cited above, requires expert testimony since it is outside the scope of a layperson’s knowledge. “[C]ases involving pharmaceuticals, toxins or medical devices involve complex questions of medical causation beyond the understanding of a lay person,” and thus expert testimony is required. In re Bay col Prods. Litig., 321 F.Supp.2d 1118, 1126 (D. Minn. 2004). Plaintiffs’ counter that expert testimony is not required in all product liability cases in" }, { "docid": "12618919", "title": "", "text": "medical science, to attempt to answer such a [complex] question would permit the rankest kind of guesswork, speculation and conjecture.”). “[CJases involving pharmaceuticals, toxins or medical devices involve complex questions of medical causation beyond the understanding of a lay person,” and thus expert testimony is required. In re Baycol Prods. Litig., 321 F.Supp.2d 1118, 1126 (D.Minn.2004); see, e.g., Silverstein v. Procter & Gamble Mfg. Co., 700 F.Supp.2d 1312, 1316 (S.D.Ga.2009) (“[I]f the inference that the defendant’s product caused the plaintiffs injury is not a ‘natural inference that the juror could make through human experience ... medical expert testimony [is] essential to prove causation.’ ”) (alterations in original) (quoting Allison v. McGhan Med. Corp., 184 F.3d 1300, 1320 (11th Cir.1999)); Jones v. Ortho Pharm. Corp., 163 Cal.App.3d 396, 209 Cal.Rptr. 456, 460 (1985) (“The law is well settled that in a personal injury action causation must be proven within a reasonable medical probability based upon competent expert, testimony. Mere possibility alone is insufficient to establish a prima facie case.”). Expert testimony is required in cases involving complex causation issues, including medical device cases, because without it the jury is left to speculate on medical issues with which the average person is unfamiliar. See Hughes v. Stryker Sales Corp., No. 08-CV-655, 2010 WL 1961051, at *5 (S.D.Ala. May 13, 2010) (“In the typical case involving a complex medical device, the absence of expert testimony would force a jury to engage in speculation and conjecture on issues of defect and causation .... Therefore, courts routinely require expert testimony in such matters.”), affd sub nom. Hughes v. Stryker Corp., 423 Fed.Appx. 878 (11th Cir.2011). Thus, summary judgment is appropriate where required expert testimony is absent from the record. See C.W. ex rel. Wood v. Textron, Inc., 807 F.3d 827, 838 (7th Cir.2015) (“With no experts to prove causation ... the appellants cannot prove their toxic-tort case ... [and] summary judgment ... was proper.”) (citation omitted); Hendrix ex rel. G.P. v. Evenflo Co., 609 F.3d 1183, 1203 (11th Cir.2010) (“[Without this [expert] testimony there is no genuine dispute of material fact regarding causation ... [and]" }, { "docid": "12618917", "title": "", "text": "In re Bausch & Lomb Inc. Contacts Lens Sol. Prods. Liab. Litig., 693 F.Supp.2d 515, 520 (D.S.C.2010) (“[Causation is a required element in every product liability case.”), ajfd sub nom. Fenandez-Pineiro v. Bausch & Lomb, Inc., 429 Fed.Appx. 249 (4th Cir.2011) (per curiam); see also, e.g., Luttrell v. Novartis Pham. Corp., 894 F.Supp.2d 1324, 1340 (E.D.Wash.2012) (proximate cause in products liability has two elements—cause in fact and legal causation—under Washington law), aff'd, 555 Fed.Appx. 710 (9th Cir.2014); Moran v. Pfizer, Inc., 160 F.Supp.2d 508, 510-11 (S.D.N.Y.2001) (causation required element under New Jersey law); Porter v. Pfizer Hosp. Prods. Grp., Inc., 783 F.Supp. 1466, 1475 (D.Me.1992) (proof of causation required element of strict liability claims under Maine law); Mothershead v. Greenbriar Country Club, Inc., 994 S.W.2d 80, 89 (Mo.Ct.App.1999) (causation required element of failure to warn in products liability case under Missouri law). Generally, in products liability cases, “to establish causation, [plaintiffs] must offer admissible expert testimony regarding both general causation ... and specific causation.” Amorgianos v. Nat’l R.R. Passenger Corp., 303 F.3d 256, 268 (2d Cir.2002); see Rutigliano v. Valley Bus. Forms, 929 F.Supp. 779, 783 (D.N.J.1996), aff'd sub nom. Valley Bus. Forms v. Graphic Fine Color, Inc., 118 F.3d 1577 (3d Cir.1997). The parties agree, (Ds’ Mem. at 7-8; Ps’ Mem. at 34-35), and the substantive law across all relevant jurisdictions holds, (see Shayna S. Cook Decl. Ex. I), that where a causal link is beyond the knowledge or expertise of a lay jury, “expert testimony is required to establish cau sation.” Wills v. Amerada Hess Corp., 379 F.3d 32, 46 (2d Cir.2004); see, e.g., Show v. Ford Motor Co., 697 F.Supp.2d 976, 983 (N.D.Ill.2010) (“[Pjroducts liability cases that involve complex products beyond a lay jury’s understanding require expert testimony.”), aff'd, 659 F.3d 584 (7th Cir.2011); Brookshire Bros., Inc. v. Smith, 176 S.W.3d 30, 36 (Tex.App.2004) (“When a lay person’s general experience and common sense will not enable that person to determine causation, expert testimony is required.”); Wilhelm v. State Traffic Safely Comm’n, 230 Md. 91, 185 A.2d 715, 719 (1962) (“To allow a jury of laymen, unskilled in" }, { "docid": "9610943", "title": "", "text": "Susan R. Poul-ter, Reference Guide on Medical Testimony, in Reference Manual on Scientific Evidence 439, 444 (FedJud.Ctr.ed., 2000)), which states that \"[gjeneral causation is established by demonstrating, often through a review of scientific and medical literature, that exposure to a substance can cause a particular disease (e.g., that smoking cigarettes can cause lung cancer).” In re Rezulin, 369 F.Supp.2d at 402; see Ruggiero v. Warner-Lambert Co., 424 F.3d 249, 251 n. 1 (2d Cir.2005) (\"General causation bears on whether the type of injury at issue can be caused or exacerbated by the defendant's product. Specific causation bears on whether, in the particular instance, the injury actually was caused or exacerbated by the defendant’s product.”) (internal quotation marks omitted and emphasis in original). . Plaintiffs have not disputed this proposition. The parties also do not dispute that Ms. Hayes' and Ms. Danley's Mirenas caused her injuries — in both cases the Mirena was located outside their uteruses and had to be removed. Instead, the parties dispute how that injury occurred — i.e., whether the perforation occurred upon insertion (a risk against which Defendants warned) or after insertion. Thus, in the context of these cases, evidence of general causation means evidence that secondary perforation can occur and evidence of specific causation means evidence that it occurred in the cases of Ms. Hayes and Ms. Danley. See In re Rezulin, 369 F.Supp.2d at 438 (general or specific causation relate to \"the injury in question in relevant circumstances”). . Put another way, \"[a] physician attempting to establish a causal relationship between ex posure to a substance and a particular patient’s illness must 'demonstrate that the medical and scientific literature provides evidence that in some circumstances the exposure under consideration can cause the outcome under consideration. This step is synonymous with establishment of general, causation.’ ” In re Rezulin, 369 F.Supp. at 436 (quoting Henifin et al., supra note 27, at 469). Although In re Rezulin concerned toxic tort litigation, this concept that a specific causation opinion must be based on a reliable general causation opinion logically applies, and has been applied, in cases involving" }, { "docid": "12618929", "title": "", "text": "substitute for expert evidence of causation, given the widely held principle that expert testimony is required in cases involving a complex or technical question outside the ken of the average lay juror. See Lasley v. Georgetown Univ., 688 A.2d 1381, 1384 (D.C.1997) (“Our rule for medically complicated cases is that proof of causation normally requires medical opinion testimony.”). A review of the cases cited by Plaintiffs—as well as common sense—suggest that if it is conceivable at all that a statement by a party opponent could be used in place of expert testimony to prove causation, the circumstances in which this might occur would be exceedingly rare, especially in the pharmaceutical or medical contexts. The purpose of expert testimony in such cases—to prevent the jury from engaging in speculation in deciding the element of causation —must be borne in mind in considering whether admissions can substitute for expert testimony in a case where the causation question involves complex medical or technical issues. As discussed below, the most that can be wrung from the authority cited by Plaintiffs is that if admissions could ever substitute for expert testimony in a complex case that requires expert testimony as to causation under state law, those admissions would have to be clear, unambiguous, and concrete, rather than an invitation to the jury to speculate as to their meaning. The case on which Plaintiffs most heavily rely is In re Meridia Products Liability Litigation, in which the district court found that a diet drug’s product insert constituted an admission of causation for a particular injury. 328 F.Supp.2d 791, 810 (N.D.Ohio 2004) [hereinafter Meridia 1], ajfd sub nom. Meridia Prods. Liab. Litig. v. Abbott Labs., 447 F.3d 861 (6th Cir.2006) [hereinafter Meridia 2]. Although the court ultimately granted summary judgment in favor of defendants, it found that plaintiffs had “met their burden of showing a genuine issue of material fact” with respect to causation for high blood pressure, because the product inserts for patient and doctor stated: “MERIDIA SUBSTANTIALLY INCREASES BLOOD PRESSURE IN SOME PATIENTS.” Id. (internal quotation marks omitted). The court concluded that these statements “constitute[d]" }, { "docid": "12618968", "title": "", "text": ". \"Kekatos Daubert Decl.” refers to the Declaration of Diogenes P. Kekatos in Support of Plaintiffs’ Motion to Exclude Defendants’ Experts. (Doc. 2704.) . \"Christopher J. Cook Decl.” refers to the Declaration of Christopher J. Cook in Support of Defendant’s Motion for Summary Judgment in Danley v. Bayer Healthcare Pharmaceuticals, Inc. (13-CV-6586). (Doc. 2759.) . “Ds’ Mem.” refers to Defendants’ Memorandum of Law in Support of Their Omnibus Motion for Summary Judgment. (Doc. 3174.) . \"Ps’ Mem.” refers to Plaintiffs’ Memorandum of Law in Opposition to Defendants’ Omnibus Motion for Summary Judgment. (Doc. 3227.) . They further argue that such a warning would have made a difference in Plaintiffs’ choices, because women who are unaware of the risk of secondary perforation will not monitor their Mirenas as carefully as those who are aware, and others will choose not to use Mirena at all because of the uncertainty involved. (Ps' Mem. at 3.) .In a products liability action, plaintiffs must prove both general and specific causation. See Wells v. SmithKline Beecham Corp., 601 F.3d 375, 377-78 (5th Cir.2010). \"General causation is whether a substance is capable of causing a particular injury or condition in the general population, while specific causation is whether a substance caused a particular individual’s injury.” Id. at 378 (internal quotation marks omitted). The Court need not discuss specific causation to resolve this motion. . The relevant jurisdictions are the fifty states, the District of Columbia, Puerto Rico and the Virgin Islands. (See Shayna S. Cook. Deck Ex. 1.) Because the cases in this MDL are diversity cases, the governing substantive law is that of the relevant state or territory. Gasperini v. Ctr. for Humanities, Inc., 518 U.S. 415, 427, 116 S.Ct 2211, 135 L.Ed.2d 659 (1996) (''[Fjederal courts sitting in diversity apply state substantive law and federal procedural law.”). . See also Lewis v. Johnson & Johnson, 601 Fed.Appx. 205, 210-11 (4th Cir.2015) (\"[PJroof other than expert testimony provides sufficient evidence of causation only when a layperson’s general experience and common understanding would enable [him/ her] to determine from the evidence, with reasonable probability, the causal relationship" }, { "docid": "3977101", "title": "", "text": "abstruse medical factors such that the ordinary laymen cannot reasonably possess well-founded knowledge of the matter and could only indulge in speculation in making a finding.”). There are two reasons why this Court cannot agree that the Baycol cases before it fall within the exception to the expert testimony requirement. First, the Court notes that Plaintiffs do not cite to a single state law opinion that supports their position that personal injury cases involving pharmaceuticals, toxins or medical devices are analogous to vehicle accidents or other personal injury cases. Second, pursuant to one of the medical experts retained by the Plaintiffs’ Steering Committee (“PSC”), the alleged injuries sustained by the plaintiffs that ingested Baycol, including muscle pain and weakness, require a physician to perform a differential diagnosis to determine the origin of such injury. Deposition of Thomas M. Zizic, M.D. at 184. Relevant to the causation inquiry is a particular plaintiffs medical history, and any medications taken at the same time as Baycol to determine whether concomitant illnesses or medications could be the cause of such injuries. Id. at 185. Similarly, another medical expert retained by the PSC testified at his deposition that it is important to investigate alternative causes of injury when making a diagnosis. Deposition of George Kaysen, M.D. at 38-39, 41. The ability to perform a differential diagnosis is clearly beyond the ability or experience of a lay person. For these reasons, this Court finds that the Baycol cases are not analogous to vehicle accident or other personal injury actions which do not require a differential diagnosis. Rather, this Court joins with those courts that have held personal injury cases involving pharmaceuticals, toxins or medical devices involve complex questions of medical causation beyond the understanding of a lay person. See e.g. McClain v. Metabolife Int'l, Inc., 193 F.Supp.2d 1252, 1258 (N.D.Al.2002) (expert is required to prove causation in this case, as interplay between ephedrine, caffeine and the other ingredients in Metabolife 356, the varying states of pre-existing ill-health of Plaintiffs, and their various ultimate injuries is “complex and technical in nature”); Sanderson v. Int’l Flavors and Fragrances," } ]

[ { "docid": "9435974", "title": "", "text": "unlawful killing of a human being without malice and without premeditation and deliberation and further the burden would be upon him to satisfy you-~nierely to satisfy you that he was justified on the grounds of self-defense in order to excuse the killing altogether, in which event he would be entitled to a verdict of not guilty. (emphasis added). (R. p. 10). III. PETITIONER'S SELF-DEFENSE AND INEFFECTIVE ASSISTANCE OF COUNSEL ARGUMENTS Dealing first with the trial court's self-defense instructions, this court agrees with both the Magistrate and the North Carolina Supreme Court that the evidence in this case was insufficient to support such an instruction. Bush II, 307 N.C. at 161, 297 S.E.2d at 569. Imperfect self-defense arises under North Carolina law when (1) it appeared to the defendant and he believed it to be necessary to kill the deceased in order to save himself from death or great bodily harm and (2) defendant’s belief was reasonable in that the circumstances as they appeared to him at the time were sufficient to create such a belief in the mind of a person of ordinary firmness. Id. at 159, 297 S.E.2d at 568; State v. Wilson, 304 N.C. 689, 695, 285 S.E.2d 804, 808 (1982). Thus, where the defendant, although without murderous intent, was the aggressor or used excessive force, and therefore loses the benefit of perfect self-defense, he may properly invoke the right of imperfect self-defense if he meets both of the above elements. In that case, the defendant would remain guilty of at least voluntary manslaughter. Id. Applying these principles to the case at bar, it is obvious that no evidence exists to support any finding that petitioner in fact formed a belief that it was necessary for him to kill the victim in order to protect himself from death or great bodily harm. Bush II, 307 N.C. at 161, 297 S.E.2d at 569. Petitioner’s own testimony indicates that Marshbum, at worst, pushed him and told him to get out of his house. Bush testified that the deceased “had not threatened to use a weapon” against him nor had he" } ]

[ { "docid": "9436032", "title": "", "text": "States v. Hasting, 461 U.S. 499, 510, 103 S.Ct. 1974, 1981, 76 L.Ed.2d 96 (1983). Accordingly, the critical inquiry is “ ‘whether the evidence was so disposi-tive of [the disputed element ] that a reviewing court can say beyond a reasonable doubt that the jury would have found it unnecessary to rely on the presumption.’ ” Id. quoting Connecticut v. Johnson, 460 U.S. at 97 n. 5, 103 S.Ct. at 983 n. 5 (Powell, J., dissenting) (emphasis added). What now remains for this court is application of the Rose v. Clark standard to the case sub judice. Here, Bush admitted stabbing and killing Mr. Marshburn. His only defense (disregarding his questionable self-defense argument), and a seriously contested defense from the outset, was the fact that he did not act with malice. A mandatory presumption that Bush intended to kill and did kill in malice predicated solely on his use of a deadly weapon essentially eliminated this defense from the trial. Since the facts did not overwhelmingly preclude this defense, as the North Carolina Supreme Court itself found, this court cannot find the error to be harmless. Clearly, the record indicates conflicting evidence and inferences which could be drawn from that evidence regarding whether the stabbing occurred as a result of a racist remark and provocation, which, if believed, would negate the element of malice. The state relied heavily on petitioner’s own statements to Mrs. Marshburn and Detective Jarman to convict him. In fact, the only evidence adduced at trial concerning the events surrounding the killing was derived from statements made by Bush to others and his own trial testimony. Bush never conceded that he acted with malice. Respondent acknowledged that Bush’s defense to first-degree murder was lack of malice and the North Carolina Supreme Court held in Bush (II) that evidence was introduced at trial supporting this defense —sufficient evidence so as to mandate an instruction on “heat of passion killing on sudden provocation and a resulting absence of malice.” 307 N.C. at 162, 297 S.E.2d at 570. In point of fact, if the jury chose to believe Bush, upon" }, { "docid": "9690350", "title": "", "text": "v. Davis, 289 N.C. 500, 223 S.E.2d 296, 302, death penalty vacated, 429 U.S. 809, 97 S.Ct. 47, 50 L.Ed.2d 69 (1976), and State v. Anderson, 230 N.C. 54, 51 S.E.2d 895, 896 (1949). In the instant case, even when the evidence is viewed in a light most favorable to Honeycutt, State v. Watkins, 283 N.C. 504, 196 S.E.2d 750, 754 (1973), it does not warrant an instruction on self-defense. Petitioner testified that his wife came after him with a knife, they struggled, and he did not remember anything clearly from the minute he took the knife away until the time he saw her lying on the floor in a pool of blood. Thus, the last thing Honeycutt recalls concerning the struggle was that he had the knife. At that point, however, the victim was unarmed and there was no evidence from which the jury could have inferred that it was necessary, or reasonably appeared necessary, to kill in order for Honeycutt to protect himself from death or great bodily harm. Consequently, even when we consider only the defendant’s testimony, there simply was no basis for a self-defense instruction and, therefore, Honeycutt’s counsel cannot be deemed to have rendered ineffective assistance for failing to take issue with the absence of such an instruction. The second point raised on this appeal is that petitioner’s trial attorney erred in failing to object to the instruction regarding the presumptions of malice and unlawfulness. These presumptions, to the extent that they shifted the burden of proof to a defendant, were held to violate Fourteenth Amendment Due Process in Mullaney v. Wilbur, 421 U.S. 684, 95 S.Ct. 1881, 44 L.Ed.2d 508 (1975) and State v. Hankerson, 288 N.C. 632, 220 S.E.2d 575 (1975), both of which were decided well over a year after Honeycutt’s trial and initial appeal in this case. Petitioner contends, however, that the decisions in Mullaney and Hanker-son were foreshadowed by the Supreme Court’s decision in In re Winship, 397 U.S. 358, 90 S.Ct. 1068, 25 L.Ed.2d 368 (1970) and by the First Circuit’s decision in Wilbur v. Mullaney, 473 F.2d 943" }, { "docid": "2667963", "title": "", "text": "a criminally negligent manner and death results, then both involuntary manslaughter and self-defense instructions would be warranted, particularly if there is any disputed fact issue concerning the quantum of danger reasonably perceived by the defendant. This situation must be distinguished from the typical case of “imperfect self-defense,” in which the defendant intends to use deadly force in the unreasonable belief that he is in danger of death or great bodily harm. In this circumstance, the offense is classed as voluntary manslaughter. See Skinner, 667 F.2d at 1310; 2 C. Torcia, Wharton’s Criminal Law § 165, at 262-63 (14th ed. 1979). The case of United States v. Skinner does not contradict this analysis. In Skinner, the defendant admitted that he had intentionally shot and killed the victim, but argued that he had shot him in self-defense. 667 F.2d at 1309. On these facts, the court quite properly held that no rational jury could have found the defendant guilty of involuntary manslaughter. Id. See also Bishop v. Mazurkiewicz, 634 F.2d 724, 726 (3d Cir.1980) (killing claimed to be in self-defense was accomplished with a gun, an instrument of deadly force, thus precluding any rational trier of fact from reaching involuntary manslaughter verdict), cert. denied, 452 U.S. 917, 101 S.Ct. 3053, 69 L.Ed.2d 421 (1981). Consequently, we must conclude that the district court erred in rejecting the defendant’s requested involuntary manslaughter instruction on the ground that the defendant had also requested a self-defense instruction. However, we conclude that the district court’s error was harmless because the defendant was not entitled to an involuntary manslaughter instruction in any event. For a defendant to be entitled to an instruction regarding a lesser included offense, there must be evidence in the record that would enable a jury rationally to find all of the elements of the lesser included offense but not of the greater offense. Skinner, 667 F.2d at 1309; United States v. Johnson, 637 F.2d 1224, 1233-34 (9th Cir. 1980). One of the requisite conditions for an involuntary manslaughter conviction is that the defendant acted without malice. See United States v. Celestine, 510 F.2d 457," }, { "docid": "9690348", "title": "", "text": "9 L.Ed.2d 837 (1963), Francis v. Henderson, 425 U.S. 536, 96 S.Ct. 1708, 48 L.Ed.2d 149 (1976), Hankerson v. North Carolina, 432 U.S. 233, 97 S.Ct. 2339, 53 L.Ed.2d 306 (1977), and Wainwright v. Sykes, 433 U.S. 72, 97 S.Ct. 2497, 53 L.Ed.2d 594 (1977), held that one who fails to comply with North Carolina’s procedural requirements for preserving challenges to jury instructions for direct review is barred from seeking federal habeas corpus relief unless he can show cause for, and prejudice from, his failure to follow the state procedural rules. The issue we are confronted with in this case is whether the failure of Honeycutt’s attorney to except to the judge’s jury instructions or to raise the issues on appeal constitutes “cause” under Cole, so as to permit Honeycutt to raise these issues in the instant petition for federal habeas corpus. Petitioner would have us answer this question affirmatively on the ground that ineffective assistance of counsel should excuse him for failing to preserve his constitutional claims in accordance with North Carolina law. Honeycutt seeks federal habeas relief arguing that he was denied a constitutionally fair trial because of the trial court’s failure to instruct on self-defense and because of the court’s instruction regarding the presumptions of malice and unlawfulness. While he concedes that he failed to comply with North Carolina law to preserve these issues, Honeycutt contends that his trial attorney provided ineffective assistance in his failure to properly object. We cannot agree. First, petitioner argues that, in light of his own testimony, he was entitled to an instruction on self-defense and that his attorney erred in not excepting to the trial court’s failure to so instruct. Under North Carolina law, “[t]o be entitled to an instruction on self-defense, ... [a] defendant ha[s] to present evidence tending to show (1) he was free from fault in the matter, and (2) it was necessary, or reasonably appeared to be necessary, to kill in order to protect himself from death or great bodily harm.” State v. Spaulding, 298 N.C. 149, 257 S.E.2d 391, 394-95 (1979) (emphasis supplied); see also State" }, { "docid": "9690349", "title": "", "text": "seeks federal habeas relief arguing that he was denied a constitutionally fair trial because of the trial court’s failure to instruct on self-defense and because of the court’s instruction regarding the presumptions of malice and unlawfulness. While he concedes that he failed to comply with North Carolina law to preserve these issues, Honeycutt contends that his trial attorney provided ineffective assistance in his failure to properly object. We cannot agree. First, petitioner argues that, in light of his own testimony, he was entitled to an instruction on self-defense and that his attorney erred in not excepting to the trial court’s failure to so instruct. Under North Carolina law, “[t]o be entitled to an instruction on self-defense, ... [a] defendant ha[s] to present evidence tending to show (1) he was free from fault in the matter, and (2) it was necessary, or reasonably appeared to be necessary, to kill in order to protect himself from death or great bodily harm.” State v. Spaulding, 298 N.C. 149, 257 S.E.2d 391, 394-95 (1979) (emphasis supplied); see also State v. Davis, 289 N.C. 500, 223 S.E.2d 296, 302, death penalty vacated, 429 U.S. 809, 97 S.Ct. 47, 50 L.Ed.2d 69 (1976), and State v. Anderson, 230 N.C. 54, 51 S.E.2d 895, 896 (1949). In the instant case, even when the evidence is viewed in a light most favorable to Honeycutt, State v. Watkins, 283 N.C. 504, 196 S.E.2d 750, 754 (1973), it does not warrant an instruction on self-defense. Petitioner testified that his wife came after him with a knife, they struggled, and he did not remember anything clearly from the minute he took the knife away until the time he saw her lying on the floor in a pool of blood. Thus, the last thing Honeycutt recalls concerning the struggle was that he had the knife. At that point, however, the victim was unarmed and there was no evidence from which the jury could have inferred that it was necessary, or reasonably appeared necessary, to kill in order for Honeycutt to protect himself from death or great bodily harm. Consequently, even when we" }, { "docid": "9435973", "title": "", "text": "death of such other person. (sic) Then two presumptions arise, first, that the killing was unlawful and second, that it was done with malice and it is for you to determine whether the defendant used a deadly weapon. (emphasis added). (R. p. 9). This was, once again repeated, as follows: So if you find the knife that the defendant used was the knife offered in evidence and that it was a deadly weapon and that he intentionally inflicted wounds which did in fact cause death to Mr. Marshburn, then nothing else appearing, the presumption of unlawfulness and malice would arise and an unlawful killing with malice is murder in the second degree. Upon such a finding, if you should so find, then the burden be upon the defendant not to satisfy you from the evidence and beyond a reasonable doubt, nor even by the greater weight of the evidence but merely to satisfy you of the absence of malice to reduce the homicide from murder in second degree to manslaughter because manslaughter is simply the unlawful killing of a human being without malice and without premeditation and deliberation and further the burden would be upon him to satisfy you-~nierely to satisfy you that he was justified on the grounds of self-defense in order to excuse the killing altogether, in which event he would be entitled to a verdict of not guilty. (emphasis added). (R. p. 10). III. PETITIONER'S SELF-DEFENSE AND INEFFECTIVE ASSISTANCE OF COUNSEL ARGUMENTS Dealing first with the trial court's self-defense instructions, this court agrees with both the Magistrate and the North Carolina Supreme Court that the evidence in this case was insufficient to support such an instruction. Bush II, 307 N.C. at 161, 297 S.E.2d at 569. Imperfect self-defense arises under North Carolina law when (1) it appeared to the defendant and he believed it to be necessary to kill the deceased in order to save himself from death or great bodily harm and (2) defendant’s belief was reasonable in that the circumstances as they appeared to him at the time were sufficient to create such a belief" }, { "docid": "22645107", "title": "", "text": "burden to satisfy the jury that he acted without malice, that is, that he acted in the heat of passion on sudden provocation. This instruction was challenged in the North Carolina Supreme Court, along with the instruction on self-defense; but we do not reach the question because the state court, although ruling on it as a matter of its own convenience, held that the issue had not been \"properly presented” to it in the absence of any evidence that the killing was in the heat of passion on sudden provocation. 288 N. C. 632, 648, 220 S. E. 2d 576, 587 (1975). Mullaney v. Wilbur, 421 U. S. 684 (1975), does not forbid States from requiring the criminal defendant to present at least some evidence to raise a factual issue with respect to heat of passion or self-defense. “I want to instruct you that to excuse this killing entirely on the grounds of self-defense the defendant must satisfy you of four things: first, that it appeared to the defendant and he believed it to be necessary to shoot Gregory Ashe in order to save himself from death or great bodily harm. The defendant testified that at the time he shot Gregory Ashe or shot at Gregory Ashe that Gregory Ashe was holding a knife at his throat and had his arm around him, and he contends that that should satisfy you that he believed it was necessary to shoot him in order to save himself from death or great bodily harm. The second thing that you must be satisfied of — excuse me — that the defendant must satisfy you of is this, that the circumstances as they appeared to him at the time were sufficient to create such belief in the mind of a person of ordinary firmness, and it is for you, the jury, to determine the reasonableness of the defendant’s belief from the circumstances as they appeared to him at the time. In making this determination you should consider the circumstances as you find them to have existed from the evidence, including the size, age and strength" }, { "docid": "3193342", "title": "", "text": "(1984). The omission of the instruction must so infect the trial that the resulting conviction violates due process. Id. When the issue before the habeas court is the omission of an instruction, a habeas petitioner’s burden is especially heavy. See United States ex. rel. Kirk v. Washington, 932 F.Supp. 1053, 1056 (N.D.Ill.1996). A conviction will not be overturned even on direct appeal for refusal to give a requested jury charge unless that instruction represents a theory of the defense with a basis in the record that would lead to an acquittal. United States v. Bok, 156 F.3d 157, 163 (2nd Cir.1998). Federal habeas courts do not grant relief, as might a state appellate court, simply because a jury instruction may have been deficient in comparison to a model state instruction. Estelle v. McGuire, 502 U.S. 62, 72, 112 S.Ct. 475, 116 L.Ed.2d 385 (1991). This Court notes first that the Michigan Supreme Court has yet to recognize the doctrine of imperfect self-defense as a defense. See People v. Posey, 459 Mich. 960, 590 N.W.2d 577 (1999). The Michigan Court of Appeals, on the other hand, has recognized imperfect self-defense as a qualified defense that can mitigate a murder charge to voluntary manslaughter. This defense is available where the defendant would have been entitled to evoke the theory of self-defense had he or she not been the initial aggressor. People v. Kemp, 202 Mich.App. at 323, 508 N.W.2d 184. However, a defendant is not entitled to invoke the doctrine of imperfect self-defense if he or she initiated the confrontation between the victim and himself or herself with the intent to kill or do great bodily harm, even if, at the time he or she shot the victim, the defendant honestly and reasonably believed that his or her life was in danger. Id. at 324, 508 N.W.2d 184. The imperfect self-defense theory is unavailable where the defendant makes a decision to kill the victim without being in a position where it was immediately necessary. People v. Butler, 193 Mich.App. 63, 67, 483 N.W.2d 430 (1992); lv. den. 440 Mich. 881, 487 N.W.2d" }, { "docid": "9436013", "title": "", "text": "mandatory presumption ... violated due process.” Id. at 180. The existence of malice was undoubtedly a disputed element at petitioner’s trial; in fact, it was the only seriously contested issue. There was conflicting evidence regarding whether Bush was provoked into his act of aggression by racial epithets of the victim — evidence which, if believed, would negate the element of malice. Petitioner testified at trial in support of his version of the killing and statements from his confession were introduced which, at least in part, corroborated his trial testimony. Although the court finds the credibility of Bush’s version of events, as it relates to the evidence pertaining to malice, susceptible of significant suspicion, that obviously is not the standard to be applied by the court in determining whether some evidence was tendered by the defendant which would negate the existence of the disputed element. As the North Carolina Supreme Court explicitly found, “[t]he defendant contends and we agree that there was some evidence justifying an instruction concerning heat of passion killing on sudden provocation and a resulting absence of malice. This being the case, any presumption of malice arising from a finding that the defendant intentionally inflicted the fatal wounds with a deadly weapon disappeared and the State was entitled to no presumption.” Bush (II), 307 N.C. at 162, 297 S.E.2d at 570. Accordingly, unlike the defendants in Davis and Rook, petitioner in this case did not admit or concede the presence of the element of the crime at issue in the defective jury instruction. Given the opposing inferences to be drawn from the evidence, this court has no alternative but to find, as did the North Carolina Supreme Court, that the challenged first-degree jury instruction embodied a mandatory presumption favoring the prosecution in respect of a disputed and essential element of the crime charged. Hence, it necessarily violated petitioner’s constitutional right to due process of law recognized in Mullaney, Sandstrom and Franklin, because the jury may reasonably have understood the instruction as shifting the burden of persuasion on the disputed malice issue to Bush. Rook v. Rice, 783 F.2d" }, { "docid": "9436019", "title": "", "text": "state. As the Supreme Court stated in Franklin, the state may not create “a mandatory presumption of intent [malice] upon proof by the state of the other elements of the offense.” 105 S.Ct. at 1971. “Such shifting of the burden of persuasion with respect to a fact which the State deems so important that it must either be proved or presumed is impermissible under the Due Process Clause.” 105 S.Ct. at 1973 quoting Patterson v. New York, 432 U.S. 197, 215, 97 S.Ct. 2319, 2329, 53 L.Ed.2d 281 (1977). See Reed v. Ross, 468 U.S. 1, 104 S.Ct. 2901, 82 L.Ed.2d 1 (1984) (In Ross, the defendant was likewise convicted of first-degree murder in North Carolina, yet the Supreme Court affirmed the granting of habeas relief based upon both erroneous self-defense and malice instructions without indicating, in any manner, that defendant’s first-degree conviction vitiated the unconstitutional instruction on malice); Davis v. Allsbrooks, supra (wherein the Fourth Circuit recognized malice as a distinct element of first-degree murder in North Carolina, 778 F.2d 172, n. 2, and again, although it was unnecessary to reach the issue for disposition of the case, there simply is no indication that a first-degree murder conviction would in any way render an erroneous malice instruction on first-degree murder harmless); Hyman v. Aiken, supra. Furthermore, while there is undoubtedly a relationship between the elements of premeditation, deliberation, and malice, this connection serves only to heighten the prejudice caused by the invalid instruction on malice in petitioner’s case. As the Bush (II) opinion points out, in North Carolina the presence or absence of heat of passion is relevant to the question of premeditation and deliberation as well as malice. 307 N.C. at 163, 297 S.E.2d at 570. In accord with this principle, petitioner’s jury was instructed that deliberation means: “... that the act is done in a cold state of blood ... not under the influence of a violent passion suddenly aroused by some lawful or just cause or legal provocation ... if the purpose to kill was born and immediately executed in a passion, especially if the passion" }, { "docid": "9435963", "title": "", "text": "errors in petitioner’s jury instructions to be harmless, it decided that there was no need to address Bush’s claim of ineffective assistance of counsel. Id. at 165, n. 4, 297 S.E.2d at 572 n. 4. Petitioner next filed this petition for writ of habeas corpus, raising essentially the same three constitutional infirmities that he alleged in his motion for appropriate relief. Respondents concede, and upon review of the record the court agrees, that Bush presented these issues as matters of federal constitutional law to the state courts, thereby properly exhausting state remedies in this proceeding. Anderson v. Harless, 459 U.S. 4, 103 S.Ct. 276, 74 L.Ed. 2d 3 (1982); Picard v. Connor, 404 U.S. 270, 92 S.Ct. 509, 30 L.Ed.2d 438 (1971). In addition, any grounds for dismissal of petitioner’s claims due to procedural default were eliminated when the Superior Court of Onslow County and the North Carolina Supreme Court reviewed and decided Bush’s constitutional claims on their merits. County Court of Ulster County v. Allen, 442 U.S. 140, 99 S.Ct. 2213, 60 L.Ed. 2d 777 (1979). Accordingly, this court may properly determine the merits of the issues raised by petitioner. Since disposition of the issues at bar requires a detailed understanding of the facts of this case and the trial court’s instructions to the jury, a review of both the facts and the charge follows. I. STATEMENT OF THE FACTS The state’s evidence showed that on November 18, 1974, Mrs. Eva Marshbum returned to her home near Jacksonville, North Carolina, and found the house ransacked and her husband, Kirby W. Marsh-bum, lying on the floor in a puddle of blood. One of the Marshbum’s steak knives and Mr. Marshburn’s billfold were on the floor near his body. (R. pp. 10-11) When Mrs. Marshburn looked up from her husband’s body she noticed petitioner standing there. According to Mrs. Marsh-burn, petitioner, after first threatening her, took $3.00 from her, then told her he was not going to harm her, and tied her up. She also testified that he told her that he killed her husband because \"... he wouldn’t do anything" }, { "docid": "9435999", "title": "", "text": "instruction unconstitutionally shifted the burden of persuasion to him in violation of Mullaney v. Wilbur, supra. The Fourth Circuit rejected this contention, holding that “a state may legitimately shift a burden of production on an element of the crime to the defendant, as North Carolina has done, so long as the presumed fact is rationally connected to a proven fact.” 778 F.2d at 172. In reviewing North Carolina law, just as the United States Supreme Court had reviewed Montana law in Sandstrom and Georgia law in Franklin, the Court of Appeals found that North Carolina intended, through the above instruction, only to shift that burden of production on the element of malice to the defendant, not the burden of persuasion. Id. As the North Carolina Supreme Court has explained: The effect of the presumption is to impose upon the defendant the burden of going forward with or producing some evidence of a lawful reason for the killing or an absence of malice; i.e., that the killing was done in self-defense or in the heat of passion upon sudden provocation. The state is not required to prove malice and unlawfulness unless there is some evidence of their non-existence, but once such evidence is presented, the state must prove these elements' beyond a reasonable doubt. (emphasis added). State v. Simpson, 303 N.C. 439, 451, 279 S.E.2d 542, 550 (1981). See also State v. Reynolds, 307 N.C. at 188-192, 297 S.E.2d at 535-537; State v. Patterson, 297 N.C. at 253-257, 254 S.E.2d at 608-611. However, since the Supreme Court has held that the “state court is not the final authority on the interpretation which a jury could have given the instruction,” Franklin, 105 S.Ct. at 1972 (emphasis added), the Fourth Circuit recognized that the reviewing court “must normally examine the trial court’s instructions to see what burden was actually shifted.” 778 F.2d at 172-73. Nonetheless, having stated the general rule, the Fourth Circuit found it unnecessary to “dissect” the trial court’s instructions because the question of malice was not contested at trial by the defendant. Accordingly, the Fourth Circuit decided only that the" }, { "docid": "9435962", "title": "", "text": "found that although the trial court’s jury instructions did improperly place the burden of disproving the element of malice on petitioner, see Mullaney v. Wilbur, 421 U.S. 684, 95 S.Ct. 1881, 44 L.Ed.2d 508 (1975), this error was rendered harmless by Bush’s conviction of first-degree murder. By finding that petitioner had killed the victim with premeditation and deliberation, the Supreme Court determined that the jury necessarily found beyond a reasonable doubt that the killing was not done in the heat of passion, thus ruling out the lesser offense of voluntary manslaughter. 307 N.C. at 161-165, 297 S.E.2d at 569-572. The Supreme Court further found that the self-defense instruction was also constitutionally infirm. See Mullaney v. Wilbur, supra. However, the court determined that the evidence adduced at trial was insufficient as a matter of law to support an instruction on self-defense. Thus, the court found that the improper instruction was favorable to the petitioner and any error in the charge was harmless. 307 N.C. at 158-161, 297 S.E.2d at 567-569. Finally, because the court found any errors in petitioner’s jury instructions to be harmless, it decided that there was no need to address Bush’s claim of ineffective assistance of counsel. Id. at 165, n. 4, 297 S.E.2d at 572 n. 4. Petitioner next filed this petition for writ of habeas corpus, raising essentially the same three constitutional infirmities that he alleged in his motion for appropriate relief. Respondents concede, and upon review of the record the court agrees, that Bush presented these issues as matters of federal constitutional law to the state courts, thereby properly exhausting state remedies in this proceeding. Anderson v. Harless, 459 U.S. 4, 103 S.Ct. 276, 74 L.Ed. 2d 3 (1982); Picard v. Connor, 404 U.S. 270, 92 S.Ct. 509, 30 L.Ed.2d 438 (1971). In addition, any grounds for dismissal of petitioner’s claims due to procedural default were eliminated when the Superior Court of Onslow County and the North Carolina Supreme Court reviewed and decided Bush’s constitutional claims on their merits. County Court of Ulster County v. Allen, 442 U.S. 140, 99 S.Ct. 2213, 60 L.Ed. 2d" }, { "docid": "9435960", "title": "", "text": "ORDER JAMES C. FOX, District Judge. Petitioner, a state inmate, initiated this action seeking the issuance of a writ of habeas corpus pursuant to 28 U.S.C. § 2254, by complaint filed May 10, 1983. This matter is before the court on petitioner’s objections to the United States Magistrate’s memorandum, which reluctantly recommended dismissing Bush’s petition. Extensive and excellent briefs have been filed by both parties to this action and the matter is ripe for disposition. Petitioner was convicted of first degree murder and sentenced to death in the Superior Court of Onslow County, North Carolina, on May 22, 1975. Bush was represented by counsel at trial, offered evidence, and testified in his defense. On appeal, the North Carolina Supreme Court found no error in either petitioner’s conviction or his sentence and affirmed the judgment of the Onslow County Superior Court. State v. Bush, 289 N.C. 159, 221 S.E.2d 333 (1976) (Bush I). However, Bush’s sentence was subsequently vacated by the United States Supreme Court, Bush v. North Carolina, 429 U.S. 809, 97 S.Ct. 46, 50 L.Ed.2d 69 (1976), on grounds that the North Carolina death penalty statute, as it then existed, was unconstitutional. On remand, a life sentence was imposed by the Superior Court on November 30, 1976. Petitioner then filed a motion for appropriate relief, pursuant to N.C.GEN.STAT. § 15A-1411 et seq., alleging three constitutional infirmities in his conviction. Broadly stated, Bush argued that: (1) the trial court improperly placed the burden upon him to prove the absence of malice; (2) the trial court also improperly placed the burden upon him to prove self-defense; and (3) he received ineffective assistance of counsel because his court-appointed attorneys failed to raise these issues on direct appeal. By order dated April 21, 1981, Superior Court Judge Henry L. Stevens denied petitioner’s motion on the merits. The North Carolina Supreme Court then allowed Bush’s petition for writ of certiora-ri and, on December 7, 1982, filed its opinion affirming the order of the Superior Court. State v. Bush, 307 N.C. 152, 297 S.E.2d 563 (1982) (Bush II). Addressing the malice issue, the Supreme Court" }, { "docid": "9436033", "title": "", "text": "itself found, this court cannot find the error to be harmless. Clearly, the record indicates conflicting evidence and inferences which could be drawn from that evidence regarding whether the stabbing occurred as a result of a racist remark and provocation, which, if believed, would negate the element of malice. The state relied heavily on petitioner’s own statements to Mrs. Marshburn and Detective Jarman to convict him. In fact, the only evidence adduced at trial concerning the events surrounding the killing was derived from statements made by Bush to others and his own trial testimony. Bush never conceded that he acted with malice. Respondent acknowledged that Bush’s defense to first-degree murder was lack of malice and the North Carolina Supreme Court held in Bush (II) that evidence was introduced at trial supporting this defense —sufficient evidence so as to mandate an instruction on “heat of passion killing on sudden provocation and a resulting absence of malice.” 307 N.C. at 162, 297 S.E.2d at 570. In point of fact, if the jury chose to believe Bush, upon correct instructions, it would have had to exonerate him on the charge of first-degree murder. Of course, the jury was free to discredit Bush’s trial testimony and to consider the exculpatory portions of his confession as self-serving, but because of the erroneous charge, this court cannot determine whether the jury disbelieved Bush, or whether it merely applied the erroneous presumption charged by the trial court. See Brooks v. Kemp, 762 F.2d at 1393. Bush’s statements were the only direct evidence as to whether the killing was malicious. The jury certainly could have inferred the stabbing was malicious from his statement to Mrs. Marsh-burn and the physical evidence in the case. On the other hand, it is of course possible to kill without malice and Bush’s trial testimony indicates that is what occurred. Although there is overwhelming evidence in this case that Bush was the killer, that fact does not constitute overwhelming evidence that the killing was malicious. See Davis v. Kemp, 752 F.2d at 1521, n. 10. Accordingly, having thoroughly reviewed the evidence in this" }, { "docid": "9435977", "title": "", "text": "erred in placing on the defendant the burden of proving self-defense to the satisfaction of the jury, 307 N.C. at 158 n. 2, 297 S.E.2d at 567 n. 2, this error was favorable to the petitioner and harmless beyond any reasonable doubt, since it resulted in the jury’s consideration of a defense which Bush was not actually entitled to have considered based on the evidence presented at trial. 307 N.C. at 161, 297 S.E.2d at 569. Furthermore, assuming arguendo that petitioner was entitled, under state law, to have the jury properly consider his imperfect self-defense claim, absent extraordinary circumstances impugning the petitioner’s right to a fair trial and due process of law, the sufficiency of the evidence for purposes of instructing the jury is solely a matter of state law only and does not present a cognizable constitutional issue on habeas review. See Grundler v. North Carolina, 283 F.2d 798, 802 (4th Cir.1960). Nothing in this record would indicate Bush was so deserving of this instruction that the fact it was given improperly violated petitioner’s right to a fair trial. Accordingly, Bush’s claim of error with regard to the trial court’s instructions on self-defense is hereby DISMISSED. In addition, because the court has decided petitioner’s self-defense instruction claim on the merits and will now proceed to do so with regard to his malice instruction claim, there simply is no need to consider Bush's contention that he received ineffective assistance of counsel when his court-appointed counsel failed to raise both of these substantive issues on direct appeal to the North Carolina Supreme Court. Accordingly, the court now turns to the gravamen of petitioner’s complaint, the trial court’s instructions on malice. IV. PETITIONER’S SANDSTROM CLAIM Petitioner claims that the trial court's instructions to the jury on the element of malice violated his fourteenth amendment due process rights under Sandstrom v. Montana, 442 U.S. 510, 99 S.Ct. 2450, 61 L.Ed.2d 39 (1979), and its progeny, including Francis v. Franklin, 471 U.S. 307, 105 S.Ct. 1965, 85 L.Ed.2d 344 (1985). In Sandstrom, the defendant was convicted under Montana law of “deliberate homicide,” which the" }, { "docid": "22469352", "title": "", "text": "a single brief reference to “legal justification” could not alter the fact that, “[a]t best, the charge was confusing and contradictory”: We conclude that the charge, considered as a whole, failed “to define with substantial particularity the factual issues,” and failed “clearly to instruct the jurors as to the principles of law ... to apply in deciding the factual issues involved in the case before them.” United States v. Hill, 5 Cir.1969, 417 F.2d 279, 281. The failure to instruct properly on the issue of intention effectively deprived Young of his right “to have presented instructions relating to a theory of defense for which there is any foundation in the evidence.” Perez v. United States, 5 Cir.1961, 297 F.2d 12, 14-15. Id. (emphasis added). Here, in sharp contrast to Young, the district court gave the jury a complete and accurate self-defense instruction. After explaining the elements of first and second degree murder, the court charged the jury: If the defendant was not the aggressor and had reasonable grounds to believe and actually did believe that he was in imminent danger of death or serious bodily harm from which he could save himself only by using deadly force against his assailant, he had the right to employ deadly force in order to defend himself. By deadly force is meant force which is likely to cause death or serious bodily harm. In order for the defendant to have been justified in the use of deadly force in self defense, he must not have provoked the assault on him or been the agressor [sic]. Mere words, without more, do not constitute provocation or aggression. The circumstances under which he acted must have been such as to produce in the mind of a reasonably prudent person similarly situated the reasonable belief that the other person was then about to kill him or to do him serious bodily harm. In addition, the defendant must actually believe that he was in imminent danger of death or serious bodily harm and that deadly force must be used to repel it. If evidence of self defense is present," }, { "docid": "4968392", "title": "", "text": "— one which robs the crime of malice and the other which excuses it altogether. “Under the Maine rules considered in Mullaney when the State proved beyond a reasonable doubt that the killing was (1) intentional, and (2) unlawful, the jury was told that the defendant would be guilty of murder unless he proved by a preponderance of the evidence that he killed in the heat of passion in which case he could be convicted only of manslaughter. Under North Carolina rules when the State proved beyond a reasonable doubt a killing proximately resulting from the intentional use of a deadly weapon the jury here was told, in effect, that defendant would be guilty of murder in the second degree unless he 'satisfies’ the jury that he killed in the heat of sudden passion or in self-defense. The instructions here under consideration, therefore, like those in Maine, unconstitutionally relieved the prosecution of the burden of proving beyond a reasonable doubt malice and unlawfulness when the issues of their existence were properly raised.” 288 N.C. at 647-48 220 S.E.2d at 586. (emphasis added). Although the Chief Justice and Justice Blackmun in Hankerson, supra, 432 U.S. at 245, 97 S.Ct. 2339, suggested that North Carolina rereview its self-defense instructions in light of Patterson, no such rereview has been forthcoming. Therefore, we can only assume that the State Supreme Court’s interpretation of the instruction’s operation in State v. Hankerson, supra, is controlling. As the language quoted above establishes, North Carolina allows the presumptions of “malice” and “unlawfulness” to be raised when the state proves a wound was “intentionally inflicted upon the victim which proximately caused death.” By employing the presumption of unlawfulness, the state does far more than “create an inference that procedurally shifts the burden of going forward with the proof” as does Virginia; instead, the accused must prove by a “preponderance” that he acted in self-defense. The state, therefore, does not bear the burden to first prove unlawfulness but can merely rest upon the presumption. Also, the North Carolina self-defense charge allows the presumption of one ingredient of an offense when" }, { "docid": "9435976", "title": "", "text": "attempted to even strike the petitioner, except by pushing him with his hands. Id. at 159, 297 S.E.2d at 568. No evidence was presented that Marshburn, a 65 year old man, was so large or powerful that this conduct caused the petitioner, a 20 year old Marine, to be unduly alarmed or afraid for his life. Id. To the extent petitioner testified that he was “nervous” and “afraid,” these statements do not amount to evidence that Bush had formed any subjective belief that it was necessary to kill the victim in order to save himself from death or great bodily harm. Id. Nor do they provide any support for the proposition that if such a belief actually existed, that it was reasonable. 307 N.C. at 161, 297 S.E.2d at 569. Indeed, petitioner’s own testimony leaves little doubt but that the circumstances as they existed at the time of the killing were totally insufficient to create any reasonable fear by Bush of death or great bodily harm. Id. Thus, although as everyone agrees, the trial court erred in placing on the defendant the burden of proving self-defense to the satisfaction of the jury, 307 N.C. at 158 n. 2, 297 S.E.2d at 567 n. 2, this error was favorable to the petitioner and harmless beyond any reasonable doubt, since it resulted in the jury’s consideration of a defense which Bush was not actually entitled to have considered based on the evidence presented at trial. 307 N.C. at 161, 297 S.E.2d at 569. Furthermore, assuming arguendo that petitioner was entitled, under state law, to have the jury properly consider his imperfect self-defense claim, absent extraordinary circumstances impugning the petitioner’s right to a fair trial and due process of law, the sufficiency of the evidence for purposes of instructing the jury is solely a matter of state law only and does not present a cognizable constitutional issue on habeas review. See Grundler v. North Carolina, 283 F.2d 798, 802 (4th Cir.1960). Nothing in this record would indicate Bush was so deserving of this instruction that the fact it was given improperly violated petitioner’s" }, { "docid": "9435961", "title": "", "text": "L.Ed.2d 69 (1976), on grounds that the North Carolina death penalty statute, as it then existed, was unconstitutional. On remand, a life sentence was imposed by the Superior Court on November 30, 1976. Petitioner then filed a motion for appropriate relief, pursuant to N.C.GEN.STAT. § 15A-1411 et seq., alleging three constitutional infirmities in his conviction. Broadly stated, Bush argued that: (1) the trial court improperly placed the burden upon him to prove the absence of malice; (2) the trial court also improperly placed the burden upon him to prove self-defense; and (3) he received ineffective assistance of counsel because his court-appointed attorneys failed to raise these issues on direct appeal. By order dated April 21, 1981, Superior Court Judge Henry L. Stevens denied petitioner’s motion on the merits. The North Carolina Supreme Court then allowed Bush’s petition for writ of certiora-ri and, on December 7, 1982, filed its opinion affirming the order of the Superior Court. State v. Bush, 307 N.C. 152, 297 S.E.2d 563 (1982) (Bush II). Addressing the malice issue, the Supreme Court found that although the trial court’s jury instructions did improperly place the burden of disproving the element of malice on petitioner, see Mullaney v. Wilbur, 421 U.S. 684, 95 S.Ct. 1881, 44 L.Ed.2d 508 (1975), this error was rendered harmless by Bush’s conviction of first-degree murder. By finding that petitioner had killed the victim with premeditation and deliberation, the Supreme Court determined that the jury necessarily found beyond a reasonable doubt that the killing was not done in the heat of passion, thus ruling out the lesser offense of voluntary manslaughter. 307 N.C. at 161-165, 297 S.E.2d at 569-572. The Supreme Court further found that the self-defense instruction was also constitutionally infirm. See Mullaney v. Wilbur, supra. However, the court determined that the evidence adduced at trial was insufficient as a matter of law to support an instruction on self-defense. Thus, the court found that the improper instruction was favorable to the petitioner and any error in the charge was harmless. 307 N.C. at 158-161, 297 S.E.2d at 567-569. Finally, because the court found any" } ]

[ { "docid": "2446560", "title": "", "text": "CRANDELL, Judge: Appellant in this case was convicted, in consonance with his provident pleas, by a military judge alone, sitting as a general court-martial, of one specification of wrongful sale of a prohibited drug, phencyclidine, on 5 May 1975, and six specifications of wrongful sale of various amounts of marijuana, on diverse dates from February 1975 to June 1975, in contravention of Articles 92 and 134, Uniform Code of Military Justice, 10 U.S.C. §§ 892, 934. The military judge imposed a sentence of bad conduct discharge, confinement at hard labor for 2 years, reduction to pay grade E-l, and forfeiture of all pay and allowances. The convening authority approved the sentence since it was within the limits of a previously negotiated pretrial agreement. By decision dated 25 March 1976, this Court held, contrary to appellant’s assignments of error, that the court had jurisdiction to try him and that his pleas of guilty were not improvident because he allegedly failed to consistently acknowledge his guilt by stating, in effect, that he did not believe marijuana caused disorder or brought discredit upon the Marine Corps. The court affirmed the findings of guilty and sentence as approved by the convening authority. Appellant then petitioned the Court of Military Appeals for a grant of review. The petition was granted and, by order dated 1 July 1976, the Court of Military Appeals vacated the decision of this Court and directed that further proceedings be held in abeyance pending the decision of the Military High Court in certain cases. In the light of United States v. Courtney, 1 M.J. 438 (1976) and United States v. McCarthy, 2 M.J. 26 (1976), we can now consider this case. The case is now before this Court again and appellant assigns the following as error: I. THE ACCUSED WAS DENIED THE EQUAL PROTECTION OF AND DUE PROCESS OF THE LAW BY HAVING BEEN PROSECUTED UNDER ARTICLE 134, RATHER THAN UNDER ARTICLE 92, CODE. II. THE COURT-MARTIAL LACKED JURISDICTION. As noted above, in accordance with his pleas, appellant was found guilty of various specifications of Articles 92 and 134, Code (R." } ]

[ { "docid": "12856363", "title": "", "text": "well as constitutional. O’Callahan v. Parker, 395 U.S. 258, 89 S.Ct. 1683, 23 L.Ed.2d 291 (1969). When the use of courts-martial has impinged on constitutional rights, the remedy has been to limit the exercise of their jurisdiction rather than to alter the nature of the tribunal, for courts-martial are not fundamentally unfair. Gosa v. Mayden, 413 U.S. 665, 93 S.Ct. 2926, 37 L.Ed.2d 873 (1973). The findings of guilty and the sentence are affirmed. Judge WATKINS and Judge LEWIS concur. . Article 120(a) of the Uniform Code of Military Justice, 10 U.S.C. § 920(a) (1976), defines rape as sexual intercourse, by any person subject to the Code, “with a female not his wife, by force and without her consent.” Article 120(c) of the Code, 10 U.S.C. § 920(c) (1976), provides that “penetration, however slight, is sufficient to complete” the offense. The maximum penalty is death. Any sentence which, as approved by an Army convening authority, includes a punitive discharge or confinement for one year or more requires review by this Court. Article 66(b), Uniform Code of Military Justice, 10 U.S.C. § 866(b) (1976). . Article 39(a), Uniform Code of Military Justice, 10 U.S.C. § 839(a) (1976). . Of the ten officers detailed to the court-martial, three were excused from appellant’s trial. None of the remaining seven was challenged. Since concurrence of only two-thirds of the members was required to convict, it is possible that only five members concurred in the findings of guilty. Article 52(a)(2), Uniform Code of Military Justice, 10 U.S.C. § 852(a)(2) (1976). In view of the importance and nature of the issue, we elect not to consider the possible consequences to appellant of not having raised the issue at the trial. Cf. United States v. Crawford, 15 U.S.C.M.A. 31, 35 C.M.R. 3 (1964); see also United States v. Jackson, 3 M.J. 101, 103-04 (C.M.A.1977) (Cook, J., dissenting). . See, e. g., United States v. Corl, 6 M.J. 914 (N.C.M.R.1979), certified for review, 6 M.J. 304 (C.M.A.1979) (other grounds), pet. filed, 7 M.J. 254 (C.M.A.1979); United States v. Meckler, 6 M.J. 779, 780 (A.C.M.R.1978), pet. denied, 7 M.J." }, { "docid": "12131056", "title": "", "text": "Boyd, 18 U.S.C.M.A. 581, 40 C.M.R. 293 (1969); United States v. Thomas, 6 M.J. 573 (A.C.M.R.1978); United States v. Zenor, 1 M.J. 918 (N.C.M.R.1976), affirmed, 3 M.J. 186 (C.M.A.1977); United States v. Couisnard, 47 C.M.R. 765 (A.F.C.M.R.1973). The significance of the foregoing recitation to the issue before us is that the status of cocaine as a habit forming narcotic drug is a question of law, not fact. United States v. Porter, 544 F.2d 936 (8th Cir. 1976). Thus, for purposes of the providency of the accused’s plea, it is sufficient that he admitted, without reservation, the wrongful transfer of cocaine in the manner alleged. His failure to acknowledge that cocaine was a habit forming narcotic drug amounts to no more than a claim of ignorance of law; a claim that constitutes no excuse for the criminal act charged. See United States v. Greenwood, 6 U.S.C.M.A. 209, 19 C.M.R. 335, 340 (1955); Manual for Courts-Martial, supra, paragraph 154a (5). We, therefore, agree with appellate government counsel that the excepted language was not essential to the specification and, in fact, was inherently included in the word “cocaine” in the context of the specification. Accordingly, the accused’s guilty plea to the cocaine offense was provident and properly accepted by the military judge. Moreover, the maximum confinement for the offense was correctly calculated to be ten years. United States v. Thomas, supra. On the authority of United States v. Guilbault, 6 M.J. 20 (C.M.A.1978), we concur with appellate defense counsel that the maximum period of confinement for the Specification of Charge II, alleging a wrongful transfer of amphetamines, should have been one year rather than two years as determined by the military judge at trial. In that regard, such offenses are punishable in part by confinement for one year under § 33-702(a)(1) of the District of Columbia Code. This error, combined with another noted by the staff judge advocate in his review, resulted in a trial determination that the maximum period of confinement was 37 years, rather than the correct amount, 34 years. Notwithstanding such errors, on the basis of the relatively slight difference" }, { "docid": "1086544", "title": "", "text": "Opinion of the Court PER CURIAM: Following the appellant’s conviction of possession and sale of lysergic acid diethylamide (LSD) , his sentence was approved by the convening authority only to include a dishonorable discharge, one year’s confine ment at hard labor, total forfeitures, and a reduction to the lowest pay grade. The findings and sentence were affirmed by the United States Army Court of Military Review, limiting the forfeiture to twelve months. We, ultimately, granted two issues for consideration in this case. The supplemental issue asks whether appellant’s plea of guilty was improvident because of a substantial misapprehension of the maximum imposable sentence to confinement for two specifications of sale and one of possession of LSD charged under Article 92, Uniform Code of Military Justice. At first blush, this charge so laid appears to be a substantial misapprehension of the maximum punishment imposable under United States v. Harden, 1 M.J. 258 (C.M.A.1976), and a denial of equal protection under the Fifth Amendment of the United States Constitution. United States v. Courtney, 1 M.J. 438, 441 n.10 (C.M.A. 1976). However, this Court has determined that the more equitable course of action is prospective application of the Courtney decision to cases tried or retried after its date of decision. United States v. Jackson, 3 M.J. 101 (C.M.A.1977). As the instant court-martial is antecedent to Courtney, we find the supplemental issue without merit. We turn, then, to the issue of prejudice to the appellant in that the trial defense counsel argued for a suspended discharge. At the time of this argument, the law was that a sentence award of suspension under Articles 71 and 74, UCMJ, 10 U.S.C. §§ 871 and 874, was beyond the military judge’s power. The appellant argues that this being the case, a request for a suspended discharge was tantamount to a concession of a sentence to punitive discharge. We agree. As “[d]efense counsel cannot ask the court-martial to impose a punitive discharge when the express or implied desire of the accused is to the contrary,” United States v. Weatherford, 19 U.S.C.M.A. 424, 425, 42 C.M.R. 26, 27 (1970)," }, { "docid": "12102956", "title": "", "text": "DECISION MILLER, Judge: A military wholesaler introduced drugs on to a base for the express purpose of selling thém to several drug dealers assigned to that base. The question presented here is whether the offense of on-base possession of such a drug cache is multiplicious for sentencing purposes with the offense of transferring a single portion of it. We hold that it is not, and affirm. The trial below was before military judge alone. The accused pleaded guilty to two specifications in violation of Article 134, Uniform Code of Military Justice, 10 U.S.C. § 934: one, alleged transfer of some amount of hashish to a specified airman, the other, wrongful possession of some amount of hashish. Both offenses occurred on 14 December 1979 at Bitburg Air Base, Germany. The trial judge found the accused guilty in accordance with his pleas and ruled that the two specifications were not multiplicious for sentencing purposes. The approved sentence extends to a bad conduct discharge, confinement at hard labor for 18 months, total forfeitures, and reduction to airman basic. The accused contends that the trial judge erred by concluding that the offenses of transferring and possessing hashish, were not multiplicious for sentencing purposes. Since the two specifications do appear on the Charge sheet to be facially separate, we are required to examine the circumstances surrounding the offenses to determine if they are “so related as to permit punishment for but a single offense,” United States v. Irving, 3 M.J. 6 (C.M.A.1977), see also, United States v. Harrison, 4 M.J. 332 (C.M.A.1978), United States v. Smith, 1 M.J. 260 (C.M.A.1976), and United States v. Meyer, 21 U.S.C.M.A. 310, 45 C.M.R. 84 (1972). The evidence in the case in chief discloses that an Air Force Office of Special Investigations (OSI) source went to the accused’s barracks room for the purpose of obtaining hashish. The accused removed twenty (20) pieces of hashish from a plastic bag contain ing approximately 70 pieces. After agreeing that the source would pay the accused $55.00 per piece following resale by the source, the accused handed the 20 pieces to him. The" }, { "docid": "12140096", "title": "", "text": "DECISION EARLY, Senior Judge: Tried by general court-martial, military judge alone, the accused was convicted, pur suant to his pleas, of transferring, possessing and using heroin, in violation of Article 134, Uniform Code of Military Justice, 10 U.S.C. § 934. The adjudged sentence extended to a bad conduct discharge, confinement at hard labor.for 24 months, forfeiture of all pay and allowances and reduction to airman basic. The convening authority reduced the period of confinement to 12 months and otherwise approved the sentence. Appellate defense counsel assign two errors. In the first they assert: THE ACCUSED’S PLEAS OF GUILTY WERE IMPROVIDENT DUE TO THE ERRONEOUS ADVICE AS TO THE MAXIMUM PUNISHMENT. During the inquiry into the providency of the accused’s plea conducted in accord with the mandate of United States v. Care, 18 U.S.C.M.A. 535, 40 C.M.R. 247 (1969), all the parties at trial agreed that the maximum punishment included 40 years confinement at hard labor. Subsequent to trial, the Court of Military Appeals in United States v. Courtney, 24 U.S.C.M.A. 280, 51 C.M.R. 796, 1 M.J. 438 (1976), held that in drug offenses where there is a regulation prohibiting the same conduct which could have been charged under Article 92, the maximum sentence imposable is limited to that under Article 92 rather than that under Article 134. Later, in United States v. Graves [order] (6 Aug. 1976), where the accused pleaded guilty to six drug offenses charged under Article 134 and was advised that the maximum sentence to confinement was 60 years, rather than 12 years had the offense been charged under Article 92, the Court remanded the record for further consideration in light of Courtney, supra, and United States v. Harden, 24 U.S.C. M.A. 76, 51 C.M.R. 249, 1 M.J. 258 (1976). In Harden, the Court held the accused’s guilty plea improvident where the trial participants and the convening authority erroneously considered the maximum penalty to be 20 years confinement at hard labor whereas, because of multiplicity, it should have been considered 10 years. On the basis of these decisions appellate defense counsel ask us to set aside the" }, { "docid": "21568974", "title": "", "text": "the providency inquiry, the appellant was advised that the two offenses in question were multiplicious for sentencing purposes and the maximum imposable confinement was 10 years. The Court of Military Review held that as the case was tried after the effective date of United States v. Courtney, 1 M.J. 438 (C.M.A.1976), the maximum imposable confinement was limited to 2 years, i. e., the sentence prescribed for a violation of Article 92, Uniform Code of Military Justice, 10 U.S.C. § 892. See United States v. Jackson, 3 M.J. 101 (C.M.A.1977). However, that court further held the pleas were provident because the record demonstrated “that the error was [not] the producing cause of the plea.” United States v. Castrillon-Moreno, 3 M.J. 894, 897 (A.C.M.R.1977). Appellant submits before this Court, citing United States v. Harden, 1 M.J. 258 (C.M.A.1976), that the erroneous advice as to the maximum imposable punishment rendered his pleas of guilty improvident. In Harden, the Court observed: A plea of guilty may be improvident because it is “predicated upon a substantial misunderstanding on the accused’s part of the maximum punishment to which he is subject.” United States v. Windham, 15 U.S.C.M.A. 523, 525, 36 C.M.R. 21, 23 (1965); United States v. Towns, 22 U.S.C.M.A. 600, 48 C.M.R. 224 (1974). Id. at 259. Accord, United States v. Brown, 1 M.J. 465 (C.M.A.1976). For reasons hereafter discussed, I conclude that while a misapprehension of the maximum punishment at trial may exist, only under extraordinary circumstances will there be a sufficient nexus between the pleas of guilty and erroneous advice as to the maximum imposable punishment to require rejection of the pleas of guilty. Thus, I disagree with the holding of the majority that appellant’s pleas of guilty were improvidently entered. The genesis of the law of this Court as to the effect of such erroneous advice on pleas of guilty is United States v. Zemartis, 10 U.S.C.M.A. 353, 27 C.M.R. 427 (1959). In that case, an accused, who was represented by a non-lawyer counsel, received a sentence which exceeded that set forth during the providency inquiry. Specifically, the court adjudged a bad-conduct" }, { "docid": "12135525", "title": "", "text": "1 M.J. 438 (1976); United States v. Graves [order] (6 August 1976); and United States v. Mosely (and Sweisford), both 24 U.S. C.M.A. 173, 51 C.M.R. 392, 1 M.J. 350 (1976). Although the issues in the case before us are the same as those in the cited cases, here, the accused was tried by special court-martial, a forum for which the maximum sentence is limited by statute to bad conduct discharge, confinement at hard labor for six months, hard labor without confinement for three months, forfeiture of two-thirds pay per month for six months and reduction to the lowest enlisted grade. Article 19, Code, supra; Manual for Courts-Martial, 1969 (Rev.), paragraph 126e. Consequently, the maximum permissible penalty in the instant case was less than that authorized for any one of the several offenses of which the accused pleaded guilty, whether charged as violations of Article 134 or Article 92 and irrespective of the multiplicity aspect of the offenses. Accordingly, we find that issues concerning the propriety of charging offenses as violations of Article 134, rather than Article 92, the providency of an accused’s pleas of guilty to such offenses, and the multiplicious nature of simultaneous possession of different drug offenses are not material in cases tried by special court-martial. Cf. United States v. Wilson, 2 M.J. 259 (A.F. C.M.R. 9 August 1976). The findings of guilty and the sentence are AFFIRMED. LeTARTE, Chief Judge, and FORAY, Judge, concur. . In Courtney (and Jackson), the Court held that the maximum penalty for drug offenses charged as violations of Article 134, UCMJ, must be limited to that imposable for violating Article 92. . Graves pleaded guilty to six specifications alleged as violations of Article 134 and for which the maximum penalty included 60 years confinement at hard labor. The same offenses charged as Article 92 violations would have provided a maximum confinement of 12 years confinement. Hence, on the basis of its rationale in Courtney, supra, and United States v. Harden, 1 M.J. 258 (1976), the Court apparently found the accused’s pleas improvident. . The pertinent issue granted in the Mosely and" }, { "docid": "21568982", "title": "", "text": "held in Timmreck that a failure to advise an accused of a portion of the imposable sentence is not a constitutional error. Thus, the question presented is whether erroneous advice, pursuant to paragraph 70b, relating to the maximum imposable punishment must be applied in an inflexible manner to require rejection of an accused’s pleas of guilty solely upon such erroneous advice or whether traditional concepts of voluntariness are applicable. I conclude the inflexible approach should be rejected. Unlike federal civilian courts where an accused is sentenced for each individual offense with an option of the trial judge to determine whether the confinement should be served consecutively or concurrently, military practice imposes one sentence for all of the offenses for which an accused is convicted. Thus, unlike the inquiry in civilian courts the focus of the inquiry in the court-martial proceeding is on the total maximum imposable confinement. A misunderstanding of any punishment imposable for any of the offenses can affect the total sentence involved. Such a misapprehension can arise from numerous reasons, such as the failure of the trial court to treat a group of offenses as multiplicious for sentencing, the use of the wrong article of the Uniform Code to assess the maximum imposable punishment, as is the case under consideration, and the inclusion of some offenses as to which there is no military jurisdiction. See United States v. Harrison, 4 M.J. 332 (C.M.A.1978); United States v. Alef, 3 M.J. 414 (C.M.A.1977); United States v. Irving, 3 M.J. 6 (C.M.A.1977); United States v. McCarthy, 2 M.J. 26 (C.M.A.1976); United States v. Courtney, supra. Obviously, as demonstrated by the aforementioned cases, the question of the total maximum punishment is subject to many variables, including an assessment of the factual circumstances to determine if chárged offenses are multiplicious for sentencing and whether military jurisdiction attaches to the alleged misconduct. Thus, the computation of the maximum imposable punishment involves an analysis in many instances which is subject to a contrary conclusion by the reviewing authorities. Furthermore, the total maximum imposable punishment can be reduced by the reversal of the finding of guilty" }, { "docid": "12131058", "title": "", "text": "in total years confinement to which the accused was subject, we are convinced there was no “substantial misunderstanding” on the accused’s part so as to render his guilty plea improvident. United States v. Harden, 1 M.J. 258 (C.M.A.1976); United States v. Frangoules, 1 M.J. 467 (C.M.A.1976); see United States v. Martin, 4 M.J. 852 (A.C.M. R.1978); United States v. Nevills, 1 M.J. 1077 (N.C.M.R.1977). On that same basis, and in further light of the fact that the punishment imposed on the accused by the military judge included only one year of confinement, we are also convinced the accused was not prejudiced as to sentence. See United States v. Saulter, 1 M.J. 1066 (N.C.M.R.1976). For the reasons stated, the approved findings of guilty and the sentence are correct in law and fact and, on the basis of the entire record, are AFFIRMED. EARLY, Chief Judge, and HERMAN and ARROWOOD, Judges, concur. . All in violation of Article 134 of the Uniform Code of Military Justice, 10 U.S.C. § 934. . In violation of Article 92, Code, 10 U.S.C. § 892, supra. . United States v. McCarthy, 2 M.J. 26 (C.M.A. 1976). . This advice is contained in Interim Change 78-2 (Headquarters USAF/JAJ Letter, 1 June 1978) to Air Force Pamphlet 111-6, Procedure Guides for Courts-Martial (19 April 1976). The advice given by the military judge was essentially as recommended in Air Force Pamphlet 111-6, Chapter 2, p. 7, prior to the Interim Change. . United States v. Wright, 5 M.J. 106 (C.M.A. 1978), cited by appellate government counsel, demonstrates the kind of changed conditions that caused the Court of Military Appeals to hold the military judge’s denial of a motion for withdrawal of a request for trial by military judge alone to be an abuse of discretion. . Although Article 134, Code, supra, does not specifically mention cocaine, paragraph 213b, Manual for Courts-Martial, United States, 1969 (Rev.), states that it is a violation of Article 134 “. . . wrongfully to possess or use marihuana or a habit forming narcotic drug.” Elsewhere in the Manual it is stated that the maximum" }, { "docid": "15878712", "title": "", "text": "such intent on the part of the military’s highest court. Consequently, contrary to the Navy’s ruling in Chronister, supra, we hold that a person in an unauthorized absentee status who refuses an order to return to his duty station may be both convicted and separately punished for willful disobedience of a lawful command of his superior non-commissioned officer and his AWOL offense. From our examination of the entire record of trial, the assignment of errors, and the government’s reply thereto, we conclude that, with the sole exception of the previously ordered credit for the 21 days spent in illegal pretrial confinement, the findings and sentence are correct in law and fact and no error materially prejudicial to the substantial rights of the accused was committed. Accordingly the findings and sentence, as modified, are AFFIRMED. POWELL, Senior Judge, concurs. . By exceptions, the accused was convicted of failing to have his hair present a tapered appearance in violation of Air Force Regulation 35-10 (18 July 1980), Dress and Personal Appearance of Air Force Personnel. The accused was acquitted of that portion of the same charge and specification which related to his failure to maintain his hair so that its bulk did not exceed 1 and 'A inches. . A final charge, that of communicating a threat to bodily injure his first sergeant, in violation of Article 134, 10 U.S.C. § 934, was dismissed by the military judge as being “part and parcel” of the Article 91 offense. . The remedy applied in United States v. Lynch, 13 M.J. 394 (C.M.A. 1982), as enunciated in United States v. Malia, 6 M.J. 65 (C.M.A. 1978) was to credit the accused’s approved sentence with time served for the period of his unlawful pretrial confinement. . The applicability of United States v. Bratcher, 19 U.S.C.M.A. 125, 39 C.M.R. 125 (1969), has always been restricted to orders to obey already existing orders, whether violation of those already existing orders be punishable under Articles 90 or 91, Uniform Code of Military Justice, Id., or punishable under Article 92, Uniform Code of Military Justice. United States v. Quarles," }, { "docid": "8288612", "title": "", "text": "DECISION ORSER, Judge: At his trial by general court-martial the accused was convicted, despite pleas of not guilty, of transferring heroin on two occasions, in violation of Article 134 of the Uniform Code of Military Justice, 10 U.S.C. § 934. The approved sentence is a bad conduct discharge, confinement at hard labor for four years, forfeiture of all pay and allowances and reduction to the grade of airman basic. On appeal, seven errors are assigned by the accused and appellate defense counsel. As the record shows the heroin transactions were consummated away from Wurtsmith Air Force Base, in the nearby civilian community of Oscoda, Michigan, we will initially consider the accused’s assertion that the court-martial improperly exercised jurisdiction over the offenses. I. In the now familiar case of United States v. McCarthy, 54 C.M.R. 30, 2 M.J. 26 (1976), the United States Court of Military Appeals, calling upon the language of Schlesinger v. Councilman, 420 U.S. 738, 760, 95 S.Ct. 1300, 43 L.Ed.2d 591 (1975), declared that even where off-base offenses involve drugs, a military tribunal is not empowered to exercise jurisdiction absent a factually supported finding that the military interest in deterring the offenses is distinct from and greater than that of civilian society, and that the distinct military interest cannot be adequately vindicated in the civilian courts. As the Court declared in McCarthy, and has since reiterated, resolution of service connection issues necessitates a detailed, thorough analysis, on a case-by-case, offense-by-offense basis, in terms of the twelve criteria set forth in Relford v. Commandant, 401 U.S. 355, 91 S.Ct. 649, 28 L.Ed.2d 102 (1971). United States v. Alef, 54 C.M.R. 1, 3 M.J. 414 (C.M.A.1977); United States v. Hedlund, 2 M.J. 11 (1976); United States v. Moore, 52 C.M.R. 4, 1 M.J. 448 (1976). The instant record reflects that prior to the commission of the offenses the Wurtsmith Air Force Base Office of Special Investigations (OSI) and the Sheriff’s Office of Iosco County, Michigan, were jointly engaged in a criminal investigation focused on two suspected narcotics dealers, one of whom was the accused. An Airman Weate volunteered to" }, { "docid": "21568973", "title": "", "text": "the record demonstrates that the accused did not labor under such a misapprehension as to the confinement that could be legally imposed as to render his plea improvident. In the appellant’s case the advice as to the maximum authorized period of confinement was substantially incorrect. See United States v. Harden, supra. There is no demonstration in the record of trial that the appellant was intelligently indifferent to an error by the trial judge as to this aspect of the maximum authorized punishment and that he still desired to plead guilty. We will not presume any other waiver of this important due process right from a silent record. See Boykin v. Ala bama, 395 U.S. 238, 241-44, 89 S.Ct. 1709, 23 L.Ed.2d 274 (1969); United States v. Care, 18 U.S.C.M.A. 535, 40 C.M.R. 247 (1969). The decision of the United States Army Court of Military Review is reversed. The findings of guilty and the sentence are set aside. The pleas of guilty are vacated. A rehearing may be ordered. Judge PERRY concurs. COOK, Judge (dissenting): During the providency inquiry, the appellant was advised that the two offenses in question were multiplicious for sentencing purposes and the maximum imposable confinement was 10 years. The Court of Military Review held that as the case was tried after the effective date of United States v. Courtney, 1 M.J. 438 (C.M.A.1976), the maximum imposable confinement was limited to 2 years, i. e., the sentence prescribed for a violation of Article 92, Uniform Code of Military Justice, 10 U.S.C. § 892. See United States v. Jackson, 3 M.J. 101 (C.M.A.1977). However, that court further held the pleas were provident because the record demonstrated “that the error was [not] the producing cause of the plea.” United States v. Castrillon-Moreno, 3 M.J. 894, 897 (A.C.M.R.1977). Appellant submits before this Court, citing United States v. Harden, 1 M.J. 258 (C.M.A.1976), that the erroneous advice as to the maximum imposable punishment rendered his pleas of guilty improvident. In Harden, the Court observed: A plea of guilty may be improvident because it is “predicated upon a substantial misunderstanding on the accused’s" }, { "docid": "21568971", "title": "", "text": "States 1969 (Revised edition). In United States v. Brown, 1 M.J. 465, 466 (C.M.A.1976), Judge Cook said: Military law requires an extensive preliminary examination of an accused before acceptance of a proffered plea of guilty. Among other things, the examination must demonstrate the accused’s understanding of the punishment to which he may be subject in the event of conviction on his plea. United States v. Care, 18 U.S.C.M.A. 535, 40 C.M.R. 247 (1969). A substantial misunderstanding on the part of the accused as to the punishment which may be adjudged is ground to vacate the plea. United States v. Harden, 1 M.J. 258 (C.M.A.1976). However, military case law further indicates that substantial misadvice will not render a guilty plea improvident where it appears on the record that the accused expressly took into account possible alternatives for sentence. See United States v. Hedlund, 7 M.J. 271 (C.M.A.1979); United States v. Harden, supra at 260. The pylons supporting the providency of the plea under these circumstances are the accused’s awareness of the possibility of a different legal maximum sentence and his intention to plead guilty regardless of the ultimate decision as to the legal limits of his punishment. See United States v. Kleinhans, 14 U.S.C.M.A. 496, 497, 34 C.M.R. 276, 277 (1964). As stated in United States v. Frangoules, 1 M.J. 467, 469 (C.M.A.1976): It reasonably appears here that the accused had considered, and taken account of, the probability that his counsel’s opinion as to the legal period of confinement for the offenses to which he proposed to plead guilty and as to which he had entered into an agreement with the convening authority, might not accord with the trial judge’s determination. The reasonable inference is that the accused believed, and so informed the trial judge, that his entry of the plea of guilty pursuant to his pretrial agreement, regardless of whether he was subject to confinement for 8 years or 2 years, was appropriate because he was satisfied in his “own mind that . [he was] guilty” and because he believed that the plea was in his “own best interest.” Thus," }, { "docid": "12131059", "title": "", "text": "10 U.S.C. § 892, supra. . United States v. McCarthy, 2 M.J. 26 (C.M.A. 1976). . This advice is contained in Interim Change 78-2 (Headquarters USAF/JAJ Letter, 1 June 1978) to Air Force Pamphlet 111-6, Procedure Guides for Courts-Martial (19 April 1976). The advice given by the military judge was essentially as recommended in Air Force Pamphlet 111-6, Chapter 2, p. 7, prior to the Interim Change. . United States v. Wright, 5 M.J. 106 (C.M.A. 1978), cited by appellate government counsel, demonstrates the kind of changed conditions that caused the Court of Military Appeals to hold the military judge’s denial of a motion for withdrawal of a request for trial by military judge alone to be an abuse of discretion. . Although Article 134, Code, supra, does not specifically mention cocaine, paragraph 213b, Manual for Courts-Martial, United States, 1969 (Rev.), states that it is a violation of Article 134 “. . . wrongfully to possess or use marihuana or a habit forming narcotic drug.” Elsewhere in the Manual it is stated that the maximum punishment for offenses involving habit forming narcotic drugs, including transfers thereof, extends to confinement at hard labor for 10 years. Id., paragraph 127c. . For an excellent analysis of the charging of cocaine offenses under Article 134, Code, supra, see Schlechter, Charging Cocaine in the Military, 5 AF JAG Rptr. 7 (August 1978). Major Schlechter persuasively argues that on the basis of cocaine’s deleterious impact on military effectiveness, such offenses could properly be charged under Article 134, clause one or two, even without the allegation that the drug is a habit forming narcotic. He adds that the maximum period of confinement under such charging would remain ten years on the basis that in using the words “Drugs, habit forming,” in the Table of Maximum Punishments, (Manual for Courts-Martial, supra, paragraph 127c) the President intended to include cocaine in reliance upon the Congressional classification of the term, rather than technical pharmacological definition. . In his review, the staff judge advocate correctly concluded that simultaneous transfers of marihuana and amphetamine tablets to the same individual were multiplicious" }, { "docid": "21568970", "title": "", "text": "be improvident and require that they be vacated. In view of the nature of a guilty plea as a waiver of certain fundamental rights, it may not be accepted by a judge unless he is assured that an accused understands the likely consequences of such action. See Brady v. United States, 397 U.S. 742, 748, 90 S.Ct. 1463, 25 L.Ed.2d 747 (1970); Kercheval v. United States, 274 U.S. 220, 223, 47 S.Ct. 582, 71 L.Ed. 1009 (1927). This is a matter of fundamental due process. McCarthy v. United States, 394 U.S. 459, 466, 89 S.Ct. 1166, 22 L.Ed.2d 418 (1969). While the full extent of the required understanding has not been constitutionally delineated, it seems clear that substantially correct advice as to the maximum authorized period of confinement is essential. See Von Moltke v. Gillies, 332 U.S. 708, 728, 68 S.Ct. 316, 92 L.Ed. 309 (1948); Smith v. O’Grady, 312 U.S. 329, 61 S.Ct. 572, 85 L.Ed. 859 (1941). The same advice is more clearly required in courts-martial. See para. 70b, Manual for Courts-Martial, United States 1969 (Revised edition). In United States v. Brown, 1 M.J. 465, 466 (C.M.A.1976), Judge Cook said: Military law requires an extensive preliminary examination of an accused before acceptance of a proffered plea of guilty. Among other things, the examination must demonstrate the accused’s understanding of the punishment to which he may be subject in the event of conviction on his plea. United States v. Care, 18 U.S.C.M.A. 535, 40 C.M.R. 247 (1969). A substantial misunderstanding on the part of the accused as to the punishment which may be adjudged is ground to vacate the plea. United States v. Harden, 1 M.J. 258 (C.M.A.1976). However, military case law further indicates that substantial misadvice will not render a guilty plea improvident where it appears on the record that the accused expressly took into account possible alternatives for sentence. See United States v. Hedlund, 7 M.J. 271 (C.M.A.1979); United States v. Harden, supra at 260. The pylons supporting the providency of the plea under these circumstances are the accused’s awareness of the possibility of a different legal" }, { "docid": "12135524", "title": "", "text": "DECISION UPON FURTHER REVIEW EARLY, Senior Judge: Pursuant to his pleas, the accused was convicted of four specifications alleging wrongful sale, use and possession of marijuana, in violation of Article 134, Uniform Code of Military Justice, 10 U.S.C. § 934, and two specifications alleging possession and use of amphetamines, contrary to Article 92. The approved sentence extends to bad conduct discharge, confinement at hard labor for four months, forfeiture of $229.00 per month for four months and reduction in grade to airman basic. On 3 November 1975, the Commander, Lowry Technical Training Center, Lowry Air Force Base, Colorado, suspended the bad conduct discharge and forfeitures then remaining and restored the accused to duty. In our initial decision in this case, we affirmed the findings of guilty and the sentence. On 6 February 1976, the Court of Military Appeals vacated our decision and remanded the record of trial to us with instructions to hold further proceedings in abeyance pending resolution of the relevant issues in United States v. Jackson [order] (1976), and United States v. Courtney, 1 M.J. 438 (1976); United States v. Graves [order] (6 August 1976); and United States v. Mosely (and Sweisford), both 24 U.S. C.M.A. 173, 51 C.M.R. 392, 1 M.J. 350 (1976). Although the issues in the case before us are the same as those in the cited cases, here, the accused was tried by special court-martial, a forum for which the maximum sentence is limited by statute to bad conduct discharge, confinement at hard labor for six months, hard labor without confinement for three months, forfeiture of two-thirds pay per month for six months and reduction to the lowest enlisted grade. Article 19, Code, supra; Manual for Courts-Martial, 1969 (Rev.), paragraph 126e. Consequently, the maximum permissible penalty in the instant case was less than that authorized for any one of the several offenses of which the accused pleaded guilty, whether charged as violations of Article 134 or Article 92 and irrespective of the multiplicity aspect of the offenses. Accordingly, we find that issues concerning the propriety of charging offenses as violations of Article 134, rather" }, { "docid": "12099104", "title": "", "text": "LSD by the appellant was subject to an aggregate maximum sentence of confinement of 1 year, as was his conspiracy to sell LSD. See Table of Maximum Punishments for violation of Article 81, conspiracy. In total, then, the maximum sentence to confinement facing the appellant at trial was only 2 years and 6 months. As the appellant’s approved sentence to confinement is 3 years and 6 months, prejudice is apparent. One further matter warrants our attention. Appellant correctly points out that the staff judge advocate’s post-trial review was served on substitute defense counsel, instead of his trial defense counsel who stood available to continue the representation of his client, the appellant. See United States v. Palenius, 2 M.J. 86 (C.M.A. 1977). This was error, and remedial action is necessary. United States v. Iverson, 5 M.J. 440 (C.M.A.1978). The decision of the United States Army Court of Military Review is reversed and the action of the convening authority is set aside. The record is returned to the Judge Advocate General of the Army for remand to an appropriate convening authority for a new review and action, in which the sentence will be reassessed in light of the error. The review will be served upon counsel for the accused pursuant to United States v. Goode, 1 M.J. 3 (C.M.A.1975), and United States v..Iverson, supra. . As this trial preceded United States v. Courtney, 1 M.J. 438 (C.M.A.1976), which has only prospective application, United States v. Jackson, 3 M.J. 101 (C.M.A.1977), the approach used in United States v. Walter, 20 U.S.C.M.A. 367, 43 C.M.R. 207 (1971), controls the disposition of this case. . United States v. Walter, supra at 371, 43 C.M.R. at 211 (emphasis added). . Id. at 371-72, 43 C.M.R. at 211-12. . See n.1, supra. . The other issue granted for review is deemed to lack merit. United States v. Varacalle, 4 M.J. 181 (C.M.A.1978). FLETCHER, Chief Judge (concurring): I concur. This is an instance in which a charge brought under Article 92, Uniform Code of Military Justice, 10 U.S.C. § 892, subjects a defendant to a more serious penalty" }, { "docid": "12131057", "title": "", "text": "and, in fact, was inherently included in the word “cocaine” in the context of the specification. Accordingly, the accused’s guilty plea to the cocaine offense was provident and properly accepted by the military judge. Moreover, the maximum confinement for the offense was correctly calculated to be ten years. United States v. Thomas, supra. On the authority of United States v. Guilbault, 6 M.J. 20 (C.M.A.1978), we concur with appellate defense counsel that the maximum period of confinement for the Specification of Charge II, alleging a wrongful transfer of amphetamines, should have been one year rather than two years as determined by the military judge at trial. In that regard, such offenses are punishable in part by confinement for one year under § 33-702(a)(1) of the District of Columbia Code. This error, combined with another noted by the staff judge advocate in his review, resulted in a trial determination that the maximum period of confinement was 37 years, rather than the correct amount, 34 years. Notwithstanding such errors, on the basis of the relatively slight difference in total years confinement to which the accused was subject, we are convinced there was no “substantial misunderstanding” on the accused’s part so as to render his guilty plea improvident. United States v. Harden, 1 M.J. 258 (C.M.A.1976); United States v. Frangoules, 1 M.J. 467 (C.M.A.1976); see United States v. Martin, 4 M.J. 852 (A.C.M. R.1978); United States v. Nevills, 1 M.J. 1077 (N.C.M.R.1977). On that same basis, and in further light of the fact that the punishment imposed on the accused by the military judge included only one year of confinement, we are also convinced the accused was not prejudiced as to sentence. See United States v. Saulter, 1 M.J. 1066 (N.C.M.R.1976). For the reasons stated, the approved findings of guilty and the sentence are correct in law and fact and, on the basis of the entire record, are AFFIRMED. EARLY, Chief Judge, and HERMAN and ARROWOOD, Judges, concur. . All in violation of Article 134 of the Uniform Code of Military Justice, 10 U.S.C. § 934. . In violation of Article 92, Code," }, { "docid": "12137016", "title": "", "text": "Opinion of the Court PER CURIAM: The appellant was tried by a general court-martial and pleaded guilty in compliance with his pretrial agreement. Consistent with his pleas, he was found guilty of possessing and selling hashish on November 5, 1978, and of possessing hashish on November 6, 1978, in violation of Article 134, Uniform Code of Military Justice, 10 U.S.C. § 934. He was sentenced to a dishonorable discharge, total forfeitures, confinement at hard labor for 2lh years, and reduction to the grade E-l. The convening authority approved the findings and sentence, and the United States Army Court of Military Review affirmed. The appellant argues that his guilty pleas were rendered improvident because the military judge failed to ask the trial and defense counsel whether their understanding of the pretrial agreement comported with the judge’s. See United States v. Green, 1 M.J. 453 (C.M.A.1976); United States v. King, 3 M.J. 458 (C.M.A.1977). However, we agree with appellee that the pretrial agreement is so straightforward and simple that it is susceptible only to one interpretation. In any event, it is clear from the record\" that the parties assumed that their understanding of the terms and effect of the pretrial agreement was the same. If counsel’s understanding of the pretrial agreement had been different in any way from the terms of the agreement that the military judge fully examined in open court, we have no doubt under the circumstances of this case that counsel would have so stated. This inference is all the stronger since counsel were under a duty to reveal in open court any discrepancy between the pretrial agreement and their understanding thereof. United States v. Crowley, 3 M.J. 988 (A.C.M.R. en banc 1977), reversed, 4 M.J. 170 (C.M.A.1977), pet. for reconsideration granted, 4 M.J. 272 (C.M.A.1978), affirmed, 7 M.J. 336 (C.M.A.1979). The decision of the United States Army Court of Military Review is affirmed. . The pretrial agreement provided that the appellant would plead guilty, enter into a written stipulation which the Government later waived, and refrain from committing any violation of the Uniform Code of Military Justice in" }, { "docid": "12122374", "title": "", "text": "of a stipulation is dependent upon the exercise of sound discretion by the military judge. His determination as to the accused’s consent may be predicated on factors other than the express consent. In matters of procedure his determination need rest only upon the implied authority of defense counsel to act for the accused. United States v. Cambridge, supra. Accused was represented by a designated full time defense counsel, certified in accordance with Article 27(b), Uniform Code of Military Justice, 10 U.S.C.A. § 827(b), and was present in court when the agreement to the authentication of the reprimand was made. Only minutes preceding the agreement, the judge had fully advised the accused of his rights concerning a stipulation of fact setting out the circumstances of the offense to which he was pleading guilty and the accused verbally acknowledged his understanding and consented to that stipulation. Under these circumstances, we believe the military judge was justifiably satisfied that counsel was acting for the accused who was aware of his rights and consented to the stipulation. United States v. Cambridge, supra. The remaining assignments of error are without merit. Accordingly, the findings of guilty and the sentence are AFFIRMED. EARLY, Chief Judge, HERMAN and ORSER, Judges, concur. . See Air Force Regulation 35-32, Unfavorable Information Files and Control Rosters, 22 September 1975. . Chapter 7, Section F, Air Force Pamphlet 111-6, 19 April 1976, sets out proper procedure to be used when a stipulation of fact is offered into evidence. . See United States v. Bertelson, 3 M.J. 314 (C.M.A.1977) and United States v. Rempe, 49 C.M.R. 367 (A.F.C.M.R. 1974), for additional advice required to be given the accused when a stipulation amounts to a confession of the offense to which he has pleaded not guilty." } ]

[ { "docid": "22250481", "title": "", "text": "the position of an insurer, because I recognize a distinction between the crew, the officers, a lawsuit involving a member of the crew, and that line of cases that have to do with lawsuits by passengers and freighters or cargo owners, and if you will read the Rolph case very carefully you will find implicit in that decision that distinction, and in fact it finally boils itself down to this very fundamental element. Of course, the Rolph case was handed down long before the Jones Act, 46 U.S.C.A. § 688, came into existence, but today, where a member of the crew brings an action, as I understand the law, from (sic) indemnity under the Maritime law, and for negligence under the Jones Act, his proof is the same; he must establish negligence, and I don’t consider that those cases which deal with the rights of passengers and the rights of people who put cargo on board, as to the seaworthiness of the ship, that we can go that far on this definition of seaworthiness, when we are talking about a claim by a member of the crew for something done to him by ansther member of the unlicensed crew.” . Work v. Leathers, 97 U.S. 379, 24 L.Ed. 1012; The Edwin I. Morrison, 153 U.S. 199, 210, 14 S.Ct. 823, 38 L.Ed. 688; Mahnich v. Southern S.S. Co., 321 U.S. 96, 100, 64 S.Ct. 455, 88 L.Ed. 561; The H. A. Scandrett, 2 Cir., 87 F.2d 708, 710; Balado v. Lykes Bros. S.S. Co., 2 Cir., 179 F.2d 943, 945. . Dupont de Nemours & Co. v. Vance, 19 How. 162, 167, 15 L.Ed. 584; The Silvia, 171 U.S. 462, 464, 19 S.Ct. 7, 43 L.Ed. 241; The Southwark, 191 U.S. 1, 9, 24 S.Ct. 1, 48 L.Ed. 65; Societa Anónima etc. v. Federal Insurance Co., 2 Cir., 62 F.2d 769, 771; Weil, Inc., v. American West African Line, 2 Cir., 147 F.2d 363, 365. . Sweeney v. United Feature Syndicate, 2 Cir., 129 F.2d 904; Wright v. Farm Journal, 2 Cir., 158 F.2d 976; Williams v. Powers, 6 Cir.," } ]

[ { "docid": "8719013", "title": "", "text": "and purposes, when the Companion was given over to Cone by Horne in San Francisco, ownership of the vessel passed to Martinson despite the fact that technical legal title had not yet passed. Consequently, even if he were not estopped on the issue, Martinson would be an “owner” within the meaning of § 183. The District Court’s exercise of jurisdiction is sustained. Liability The standard of conduct which the law imposes upon .shipowners consists primarily of the obligation to provide a seaworthy vessel. One facet of this obligation is the duty to supply an adequate and competent crew. Boudoin v. Lykes Bros. S. S. Co., 1955, 348 U.S. 336, 75 S.Ct. 382, 99 L.Ed. 354; Petition of United States, 2 Cir., 1949, 178 F.2d 243, 252; Spellman v. American Barge Line Co., 3 Cir., 1949, 176 F.2d 716, 721; The Rolph, 9 Cir., 1924, 299 F. 52, 54, certiorari denied sub nom; Rolph Navigation & Coal Co. v. Kohilas, 1924, 266 U.S. 614, 45 S.Ct. 96, 69 L.Ed. 468. If, then, the Companion was manned by an inadequate crew, Martinson’s duty as shipowner was breached, and he would be liable for damages to appellees on either the theory of negligence or that of unseaworthiness. The question of whether or not the crew was inadequate is one of fact, and we cannot disturb the trial court’s ruling on that issue unless we find it to be so clearly erroneous that a material mistake has been made. McAllister v. United States, 1954, 348 U.S. 19, 75 S.Ct. 6, 99 L.Ed. 20; Pacific Tow Boat Co. v. States Marine Corp., 9 Cir., 1960, 276 F.2d 745, 752, or, put another way, unless the evidence clearly preponderates in the opposite direction. Furness, Withy & Co. v. Carter, 9 Cir., 1960, 281 F.2d 264. The evidence showed that the Companion was a two-man vessel and that Woolen was a seventeen year old high school student with no experience upon the open sea. The journey which the Companion was to make was one of over fifty hours duration. Although Martinson testified that a crew composed of" }, { "docid": "23191931", "title": "", "text": "1086, teach us that “negligence,” as used in that statute, must be given a liberal interpretation. We think that it includes any knowing or careless breach of any obligation which the employer owes to the seamen. Among those obligations is that of seeing to the safety of the crew. And there is no such safety if one of the crew is a person having the character of Todd. Consequently, the defendant is liable here because the ship’s officers knew, or with ordinary diligence, should have known, what Todd was like. In such circumstances, it is not material that Todd, when he assaulted plaintiff, was not acting in the course of his employment or in the interest of defendant. Cf. The Rolph, 9 Cir., 299 F. 52, certiorari denied 266 U.S. 614, 45 S.Ct. 96, 69 L.Ed. 468. In so far as Davis v. Green, 260 U.S. 349, 43 S.Ct. 123, 67 L.Ed. 299, and Atlantic Coast Line R. Co. v. Southwell, 275 U.S. 64, 48 S.Ct. 25, 72 L.Ed. 157, indicate a contrary conclusion as to an ordinary employee, they are not in point since the obligation of a shipowner to his seamen is substantially greater than that of an ordinary employer to his employees. Affirmed. ln Cain v. Alpha S. S. Corp., 2 Cir., 35 F.2d 717, 720, affirmed on other grounds in Alpha S. S. Corp. v. Cain, 281 U.S. 642, 50 S.Ct. 443, 74 L.Ed. 1086, in passing, we cited The Rolph, supra, with apparent approval. In Bonsalem v. Byron S. S. Co., 2 Cir., 50 F.2d 114, 115, we did so again, but held it inapplicable for reasons there noted. Cf. Pacific Steamship Co. v. Peterson, 278 U.S. 130, 137, 49 S.Ct. 75, 73 L.Ed. 220. In Cain v. Alpha S. S. Corp., supra, Yukes v. Globe S. S. Corp., 6 Cir., 107 F.2d 888, Nelson v. American-West-African Line, 2 Cir., 86 F.2d 730 and Lykes Bros. S. S. Co. v. Grubaugh, 5 Cir., 128 F.2d 387, there was no proof that the marauding employee was known or reasonably should have been known to be unusually" }, { "docid": "15860107", "title": "", "text": "affirmed 4 Cir., 10 F.2d 792. A vessel does not need to be free from all cause for mishap; it is enough if she is reasonably fit. Boudoin v. Lykes Bros. S.S. Co., 348 U.S. 336, 75 S.Ct. 382, 99 L.Ed. 354; Poignant v. U. S., 2 Cir., 225 F.2d 595; Doucette v. Vincent, 1 Cir., 194 F.2d 834. The seaworthiness of a ship, her equipment and appurtenance is a relative concept, dependent in each instance upon the circumstances in which her fitness is drawn in question. The crucial consideration is whether the ship was, in all respects pertinent to the injury, reasonably fit to permit libellant to perform his task aboard the ship with reasonable safety. Lester v. U. S., 2 Cir., 234 F.2d 625, 628. The doctrine of unseaworthiness does not extend so far as to require the owner to keep appliances which are inherently sound and seaworthy absolutely free at all times from transitory unsafe conditions resulting from their use. Cookingham v. U. S., 3 Cir., 184 F.2d 213; Hanrahan v. Pacific Transport Co., 2 Cir., 262 F. 951, certiorari denied 252 U.S. 579, 40 S.Ct. 345, 64 L.Ed. 726; Adamowski v. Gulf Oil Corp., D.C.E.D. Pa., 93 F.Supp. 115, affirmed 3 Cir., 197 F.2d 523; Shannon v. Union Barge Line Corp:, 3 Cir., 194 F.2d 584, certiorari denied 344 U.S. 846, 73 S.Ct. 62, 97 L.Ed. 658; Daniels v. Pacific-Atlantic S.S. Co., D.C.E.D.N.Y., 120 F.Supp. 96; Garrison v. U. S., D.C.N.D.Cal., 121 F.Supp. 617; McMahan v. The Panamolga, D.C.D.Md., 127 F.Supp. 659. The coil of wire in the case at bar was not a transitory condition within the meaning of the cases cited. It had been lying near the ladder for eight ór nine hours at least, with no apparent reason for its being there. That fact, coupled with the lack of adequate lighting in the ’tween deck, rendered the ship unseaworthy. It was not reasonably fit to permit libellant to perform his task with reasonable safety. Farrell Lines, Inc. v. Devlin, Md., 127 A.2d 640; Crawford v. Pope & Talbot, Inc., 3 Cir., 206 F.2d" }, { "docid": "23505863", "title": "", "text": "Doucette opinion means that the seaworthiness standard never grows more demanding despite the ready availability of new safer devices, I think it wrong and at variance with Judge Learned Hand’s ruling in The T. J. Hooper, quoted supra. A majority of the Third Circuit, in Cookingham v. United States, 184 F.2d 213, 215, has held that a shipowner is not liable for an unsafe condition resulting solely from the “transitory” presence of a foreign substance. Judge Biggs, dissenting in that case, admirably stated, as follows, what I believe the correct position: “The duty of the owner to maintain a seaworthy ship is an absolute one: The Osceola, 189 U.S. 158, 173-175, 23 S.Ct. 483, 47 L.Ed. 760. It has no connection with negligence. Seas Shipping Co. v. Sieracki, 328 U.S. 85, 66 S.Ct. 872, 90 L.Ed. 1099; Mahnich v. Southern S. S. Co., 321 U.S. 96, 64 S.Ct. 455, 88 L.Ed. 561. If the ship or her gear is not safe for use, the ship is not seaworthy. I think that both the court below and this court have returned to the doctrine of negligence of Plamals v. The Pinar Del Rio, 277 U.S. 151, 48 S. Ct. 457, 72 L.Ed. 827. In Mahnich v. Southern S. S. Co., supra, the Supreme Court pointed out that before the decision in The Osceola, ‘ * * * the right of the seaman to recover for injuries caused by unseaworthiness seems to have been rested on the negligent failure, usually of the seaman’s officers or fellow seamen to supply seaworthy appliances’, (321 U.S. 96, 64 S.Ct. 457), and that The Osceola made plain that the duty of the shipowner to maintain the vessel in a seaworthy condition was an absolute one. In the Mahnich ease, the Supreme Court disapproved Plamals v. The Pinar Del Rio to the extent that the latter decision conflicted with the principle just stated. 321 U.S. at page 105, 64 S.Ct. at page 460. I assume that the majority would concede that if the foreign substance, jello, had remained upon the stairway of the ‘Peckham’ for several days," }, { "docid": "8634542", "title": "", "text": "(dissenting opinion), 66 S.Ct. 872, 90 L.Ed. 1099; Mahnich v. Southern Steamship Co., 1944, 321 U.S. 96, 100, 103-104, 64 S.Ct. 455, 88 L.Ed. 561; The Osceola, 1903,189 U.S. 158, 171, 175, 23 S.Ct. 483, 47 L.Ed. 760; cf. Grillea v. United States, supra, 229 F.2d at page 690. A ship does not make a warranty. Whether one speaks in terms of holding out, cf. West v. United States, 1959, 361 U.S. 118, 122, 80 S.Ct. 189, 4 L.Ed.2d 161, or duty owed, Halecki, supra, unseaworthiness liability requires something more than a mere defective condition of the vessel. See Noel v. Isbrandtsen Co., supra. In Smith v. The Mormacdale, 3 Cir., 1952, 198 F.2d 849, certiorari denied 345 U.S. 908, 73 S.Ct. 648, 97 L.Ed. 1344, a longshoreman who was limited in his rights against his employer by the Longshoremen’s and Harbor Workers’ Compensation Act, 33 U.S.C.A. §§ 901-950, was held unable to proceed against the vessel which was owned by his employer, although the vessel’s unseaworthy condition was alleged. Following the teaching of the cases earlier discussed, we are not prepared to reach a different conclusion simply because title to the vessel is in the hands of another party who is also not personally liable. Cf. Pedersen v. Bulklube, D.C.E.D.N.Y.1959, 170 F.Supp. 462, 466-467, affirmed, 274 F.2d 824, certiorari denied 364 U.S. 814, 81 S.Ct. 44, 5 L.Ed.2d 46; Vitozi v. Platano, D.C.S.D.N.Y.1948, 1950 A.M.C. 1686; The Elizabeth M. Miller, D.C.W.D.N.Y.1932, 3 F.Supp. 171, 172-173 (dictum). But see Leotta v. The S. S. Esparta, D.C.S.D. N.Y.1960, 188 F.Supp. 168, 169, infra; Reed v. The Yaka, D.C.E.D.Pa.1960, 183 F.Supp. 69, infra. Nor, by some process of inverse reasoning, does this lead us to say that a demisor is personally liable for a condition of unseaworthiness created by the demisee. It should be enough that his ship is subject to a lien to secure whatever obligation the demisee has personally incurred in his operation of the ship. See The Barnstable, 1901, 181 U. S. 464, 21 S.Ct. 684, 45 L.Ed. 954. It is true that in Grillea v. United States, 2" }, { "docid": "7944304", "title": "", "text": "headaches, dizziness and nervousness are increased and made worse by heavy labor and confinement aboard ship, the movement of the vessel at sea, and the heated surroundings in the engine-room. 25. The medical evidence supports the plaintiff’s testimony to the extent that some neurological tests applied to the plaintiff have been positive, indicating brain damage of some kind. Plaintiff has failed to prove, however, to a reasonable certainty that the assault on him by Manuel Gonzales is responsible for his neurological condition. 26. The plaintiff received from the defendant maintenance at the rate of $6.00 per day covering a period of 43 days from December 20, 1949 to January 31, 1950, representing a total of $258.00. As a result of his injuries received aboard the Mason Lykes, however, he was not fit for duty until February 21, 1950. •Conclusions of Law 1. Jurisdiction of this action is properly laid under the Jones Act, 46 U.S.C.A. § 688, ánd the general maritime law. 2. The warranty of seaworthiness is a kind of liability without fault in which knowledge of the circumstances creating the unseaworthiness is immaterial. Seas Shipping Company v. Sieracki, 328 U.S. 85, 66 S.Ct. 872, 90 L.Ed. 1099; Work v. Leathers, 97 U.S. 379, 24 L.Ed. 1012; The Edwin I. Morrison, 153 U.S. 199, 210, 14 S.Ct. 823, 38 L.Ed. 688; Mahnich v. Southern S. S. Co., 321 U.S. 96, 100, 64 S.Ct. 455, 88 L.Ed. 561; The H. A. Scandrett, 2 Cir., 87 F.2d 708, 710; Balado v. Lykes Bros. S. S. Co., 2 Cir., 179 F.2d 943, 945. 3. A shipowner’s warranty of seaworthiness covers the competence of the crew as well as the integrity of the vessel. The Osceola, 189 U.S. 158, 23 S.Ct. 483, 47 L.Ed. 760; In re Pacific Mail Steamship Company, 9 Cir., 130 F. 76, 69 L.R.A. 71; The Rolph, 9 Cir., 299 F. 52; Spellman v. American Barge Line, 3 Cir., 176 F.2d 716; Keen v. Overseas Tankship Corp., 2 Cir., 194 F.2d 515. 4. Applied to a seaman, such a warranty is not that the seaman is competent to meet" }, { "docid": "16756780", "title": "", "text": "is now understood in the United States the ship is liable whether the accident was due to unseaworthiness of the vessel or the operative negligence of a member of the crew. He relied on the decision of the Supreme Court in Mahnich v. Southern S.S. Co., 321 U.S. 96, 64 S.Ct. 455, 88 L.Ed. 561, where recovery was allowed to a seaman who was injured through the collapse of a staging caused by the parting of a piece of defective rope, which had been carelessly selected by an officer of the ship although there was sound rope on board available for the job. This decision is viewed in some quarters as showing that the doctrine of unseaworthiness has come to include not only defects in the structure of the ship and its appliances but also the negligent operation of seaworthy equipment. See Gilmore and Black, The Law of Admiralty, § 6-39. The established rule in the United States prior to legislative changes was that a seaman could recover damages for unseaworthiness but could not recover damages for the negligence of a ship’s officer or member of a crew, The Osceola, 189 U.S. 158, 23 S.Ct. 483, 47 L.Ed. 760; Mahnich v. Southern S.S. Co., 321 U.S. 96, 99, 64 S.Ct. 455; and the courts have not as yet generally accepted the view that the obligation of seaworthiness has been so extended that a seaman may now recover damages for negligence contemporaneous with use of seaworthy appliances. See Freitas v. Pacific-Atlantic Steamship Company, 9 Cir., 218 F.2d 562; Imperial Oil Ltd. v. Drlik, 6 Cir., 234 F.2d 4; Crumady v. The Joachim Hendrik Fisser, 3 Cir., 249 F.2d 818, certiorari granted, 357 U.S. 903, 78 S.Ct. 1150, 2 L.Ed.2d 1154; cf. Grillea v. United States, 2 Cir., 232 F.2d 919; Titus v. The Santorini, 9 Cir., 258 F.2d 352, 355; Petterson v. Alaska S.S. Co., 9 Cir., 205 F.2d 475, affirmed, 347 U.S. 396, 74 S.Ct. 601, 98 L.Ed. 798. We therefore remand the case to the District Judge for definite findings of fact as to the cause of the accident." }, { "docid": "8343855", "title": "", "text": "1120; reversing Rogers v. United States Lines, 3 Cir., 205 F.2d 57. However, the shipowner is not liable for injuries resulting solely from the manner in which the work was done by the stevedore and its employees. Berti v. Compagnie De Nav. Cyprien Fabre, 2 Cir., 213 F.2d 397, 400. The ship and its owners are not insurers of the safety of men working on shipboard. Jones v. Gould Steamships & Industrials, Ltd., D.C.Md., 300 F. 109, affirmed 4 Cir., 10 F.2d 792. The owner’s absolute duty or warranty has been extended to the adequacy and competency of the crew. The State of Maryland, 4 Cir., 85 F.2d 944; Berti v. Compagnie De Nav. Cyprien-Fabre, 2 Cir., 213 F.2d 397; Keen v. Overseas Tankship Corp., 2 Cir., 194 F.2d 515, certiorari denied 343 U.S. 966, 72 S.Ct. 1061, 96 L.Ed. 1363. “But it has never been held that it requires the best possible equipment, see Doucette v. Vincent, 1 Cir., 194 F.2d 834, or that the crew will be free from negligence. (Citing cases.) It requires only that equipment be reasonably fit for the use for which it was intended, and that seamen be equal in seamanship to the ordinary men in the calling.” Berti v. Compagnie De Nav. Cyprien Fabre, 2 Cir., 213 F.2d 397, at page 400. However, the owner’s absolute liability for unseaworthiness is not lessened by the fact that negligence of an officer or member of the crew contributed to the happening of the injury. Mahnich v. Southern S. S. Co., 321 U.S. 96, 64 S.Ct. 455, 88 L.Ed. 561. On the same principle that the vessel and her owner are held liable for failure to make her seaworthy or to supply and keep in order proper appliances, they are liable, in this Circuit at least, for failure to instruct a youthful and inexperienced man employed to work around dangerous machinery and to warn him of the dangers to be encountered. “The duty to warn and instruct is so closely akin to that of furnishing suitable appliances as to be in reality a part of the" }, { "docid": "8742598", "title": "", "text": "experts of wide experience who testified in effect that it was true that lashings were often used, but that the practice was confined to occasions when work was being done on the falls or on the releasing machinery and that no lashings were customarily used when jobs like cleaning and painting of the lifeboats were in progress. The trial judge followed all this evidence with scrupulous care and attention and his conclusion that no such custom or practice existed, as was contended for by appellant, was based largely on the credibility of witnesses who testified in open court, and is amply supported by the evidence. What it all boiled down to is the difference between the exercise of reasonable care, on the one hand, as contrasted with the taking of every conceivable precaution or adherence to the highest standard of care, on the other. We now turn to libellant’s assertion that the failure to use these extra precautions constituted unseaworthiness. If he prevails in this contention, it is undeniable that it is unnecessary to inquire into whether the unseaworthy condition came about as a result of the fault or neglect of respondents. Alaska S. S. Co., Inc., v. Petterson, 1954, 347 U.S. 396, 74 S.Ct. 601, 98 L.Ed. 798; Pope & Talbot, Inc., v. Hawn, supra; Seas Shipping Co. v. Sieracki, 1946, 328 U.S. 85, 66 S.Ct. 872, 90 L.Ed. 1099. Although the doctrine of seaworthiness which is said to impose a warranty on the shipowner that the ship, its equipment and appliances are not defective has, in recent years, been extended to include within the scope of the warranty such things as appliances brought on board by an independent contractor to be used by him in repairs aboard ship, Alaska S. S. Co., Inc., v. Petterson, supra, and the adequacy and competency of its crew, Overseas Tankship Corp. v. Keen, 2 Cir., 1952, 194 F.2d 515, certiorari denied 1952, 343 U.S. 966, 72 S.Ct. 1061, 96 L.Ed. 1363, it has never been held to require the best possible equipment or to impose an insurer’s liability for any and all" }, { "docid": "12436787", "title": "", "text": "appliances or unseaworthiness seems to have been a development from his privilege to abandon a vessel improperly fitted out. * * * This case [Dixon v. The Cyrus, Fed.Cas. No.3,930, 2 Pet.Adm. 407] was relied on in several early cases recognizing the seaman’s right to consequential damages for injuries resulting from faulty equipment.” The case of Mahnich v. Southern Steamship Co., 321 U.S. 96, 64 S.Ct. 455, 88 L.Ed. 561, is to the same effect. The doctrine of unseaworthiness has been extended to include improper stowage of cargo, causing personal injuries. The cases of La Guerra v. Brasileiro, 2 Cir., 1942, 124 F.2d 553, certiorari denied 315 U.S. 824, 62 S.Ct. 918, 86 L.Ed. 1220, and Fodera v. Booth American Shipping Corporation, 2 Cir., 1947, 159 F.2d 795, support that rule. The cases involving defective or missing equipment, appurtenant to a vessel resulting in personal injuries to seamen, cited in the briefs submitted herein, are clearly within the accepted definition of unseaworthiness, viz.: The Seeandbee, 6 Cir., 1939, 102 F.2d 577; Lauro v. United States, 2 Cir., 162 F.2d 32; Bentley v. Albatross S. S. Co., 3 Cir., 1953, 203 F.2d 270; Petterson v. Alaska S. S. Co., 9 Cir., 1953, 205 F.2d 478; Hawn v. Pope & Talbot, Inc., D.C., 99 F.Supp. 226; Id., 3 Cir., 198 F.2d 800; Pope & Talbot, Inc., v. Hawn, 346 U.S. 406, 74 S.Ct. 202, and Keen v. Overseas Tankship Corp., 2 Cir., 1952, 194 F.2d 515, certiorari denied 343 U.S. 966, 72 S.Ct. 1061, 96 L.Ed. 1363. In The Seeandbee case, the Court held that the presence of grease and oil on the deck did not constitute unseaworthiness but the absence of a guard rail did so. In the main opinion in the Lauro case, negligence was predicated on the fact that the claimant was injured by slipping on a patch of oil which was shown to be present for from two to fourteen hours, prior to the accident. By way of observation, the concurring opinion in that case shows that the Judge writing it held the respondent liable on the ground" }, { "docid": "22904023", "title": "", "text": "96, 64 S.Ct. 455, 88 L.Ed. 561; The Osceola, 189 U.S. 158, 23 S.Ct. 483, 47 L.Ed. 760. That warranty has been extended to the adequacy and competency of the crew. Keen v. Overseas Tankship Corp., 2 Cir., 194 F.2d 515, certiorari denied Overseas Tankship Corp. v. Keen, 343 U.S. 966, 72 S.Ct. 1061, 96 L.Ed. 1363; Yates v. Dann, D.C.Del., 11 F.R.D. 386; cf. The Rolph, 9 Cir., 299 F. 52, certiorari denied Rolph Navigation & Coal Co. v. Kohilas, 266 U.S. 614, 45 S.Ct. 96, 69 L.Ed. 468. But it has never been held that it requires the best possible equipment, see Doucette v. Vincent, 1 Cir., 194 F.2d 834, or that the crew will be free from negligence. See Keen v. Overseas Tankship Corp., supra, 2 Cir., 194 F.2d at page 518; cf. Cookingham v. United States, 3 Cir., 184 F.2d 213, certiorari denied 340 U.S. 935, 71 S.Ct. 495, 95 L.Ed. 675; Larsson v. Coastwise (Pacific Far East) Line, 9 Cir., 181 F.2d 6, certiorari denied 340 U.S. 833, 71 S.Ct. 55, 95 L.Ed. 612. It requires only that equipment be reasonably fit for the use for which it was intended, and that seamen be equal in seamanship to the ordinary men in the calling. Since there is no claim here that the longshoremen were incompetent we think Alaska S. S. Co. v. Petterson, supra, not pertinent. If plaintiff’s injuries resulted solely from the manner in which the work was done under American’s supervision, he has no recourse against Cyprien. As for the dismissal of the thirty-party action, we also there find error. In our recent decision in Palazzolo V. Pan-Atlantic S. S. Corp., 2 Cir., 211 F.2d 277, we held that in the absence of express contract, indemnity over is recoverable where the stevedore’s negligence was the “sole,” “active,” or “pari- mary” cause of the accident. In the present case the contract contains an indemnity clause, but it is entirely silent on the subject of personal injury and is generally ambiguous. See American Stevedores, Inc., v. Porello, 330 U.S. 446, 67 S.Ct. 847, 91 L.Ed." }, { "docid": "8742599", "title": "", "text": "into whether the unseaworthy condition came about as a result of the fault or neglect of respondents. Alaska S. S. Co., Inc., v. Petterson, 1954, 347 U.S. 396, 74 S.Ct. 601, 98 L.Ed. 798; Pope & Talbot, Inc., v. Hawn, supra; Seas Shipping Co. v. Sieracki, 1946, 328 U.S. 85, 66 S.Ct. 872, 90 L.Ed. 1099. Although the doctrine of seaworthiness which is said to impose a warranty on the shipowner that the ship, its equipment and appliances are not defective has, in recent years, been extended to include within the scope of the warranty such things as appliances brought on board by an independent contractor to be used by him in repairs aboard ship, Alaska S. S. Co., Inc., v. Petterson, supra, and the adequacy and competency of its crew, Overseas Tankship Corp. v. Keen, 2 Cir., 1952, 194 F.2d 515, certiorari denied 1952, 343 U.S. 966, 72 S.Ct. 1061, 96 L.Ed. 1363, it has never been held to require the best possible equipment or to impose an insurer’s liability for any and all injury to those working on shipboard, Berti v. Compag-nie De Navigation Cyprien Fabre, 2 Cir., 1954, 213 F.2d 397; see Doucette v. Vincent, 1 Cir., 1952, 194 F.2d 834. As this Court held very recently, “[I]t requires only that equipment be reasonably fit for the use for which it was intended * * Berti v. Compagnie De Navigation Cyprien Fabre, supra [213 F.2d 400]. In every case in which recovery for unseaworthiness has been allowed, the trial court or the appellate court, in the exercise of its special admiralty power, found that either the ship or its appliances or equipment was not thus fit. In the case before us, the testimony presented to the trial court clearly provided a predicate from which it could be and was quite reasonably inferred that a Kottmer-type releasing gear in proper condition furnished ample protection against the falling of a lifeboat and that the gear here in question was not defective or inadequate. The imposition of a requirement that a lifeboat be rigged to take care of exigencies as" }, { "docid": "23505862", "title": "", "text": "an electric winch; the plaintiff based his action on unseaworthiness; the case was tried to a jury which returned a verdict for defendant. The First Circuit, affirming the judgment on the verdict, held that the trial judge had discretion, as in negligence cases, to exclude evidence, offered by plaintiff, that safer equipment, “more modern or more perfect in some detail”, was available. The court said that the standard of seaworthiness is the same as that in negligence cases, i. e., to supply “reasonably safe and suitable” equipment. The court chiefly cited Jones Act or other negligence decisions. It cited, too, The Rolph, 9 Cir., 299 F. 52 —which I think not in point for reasons stated above — and also The Southwark, 191 U.S. 1, 24 S.Ct. 1, 48 L.Ed. 65, and May v. Hamburg, etc., Gesellschaft, 290 U.S. 333, 346, 54 S.Ct. 162, 78 L.Ed. 348, both suits under the Harter Act in which, by explicit statutory language, the standard is “due diligence,” a recognized relaxation of the non-statutory standard of seaworthiness. If the Doucette opinion means that the seaworthiness standard never grows more demanding despite the ready availability of new safer devices, I think it wrong and at variance with Judge Learned Hand’s ruling in The T. J. Hooper, quoted supra. A majority of the Third Circuit, in Cookingham v. United States, 184 F.2d 213, 215, has held that a shipowner is not liable for an unsafe condition resulting solely from the “transitory” presence of a foreign substance. Judge Biggs, dissenting in that case, admirably stated, as follows, what I believe the correct position: “The duty of the owner to maintain a seaworthy ship is an absolute one: The Osceola, 189 U.S. 158, 173-175, 23 S.Ct. 483, 47 L.Ed. 760. It has no connection with negligence. Seas Shipping Co. v. Sieracki, 328 U.S. 85, 66 S.Ct. 872, 90 L.Ed. 1099; Mahnich v. Southern S. S. Co., 321 U.S. 96, 64 S.Ct. 455, 88 L.Ed. 561. If the ship or her gear is not safe for use, the ship is not seaworthy. I think that both the court below" }, { "docid": "1922578", "title": "", "text": "willful misconduct on the part of the seaman himself. See The Osceola, 1903, 189 U.S. 158, 175, 23 S.Ct. 483, 47 L.Ed. 760. This may be said to be a kind of judicially created Workmen’s Compensation Act, with a limitation in the number of items recoverable. When it comes to an unlimited right of indemnity, over and above “maintenance and cure”, for injuries caused by breach of the shipowner’s obligation to supply a seaworthy vessel, an obligation sometimes said to be based upon an implied warranty of seaworthiness (see Mahnich v. Southern S. S. Co., supra, 321 U.S. at page 101, 64 S.Ct. at page 458), cases can be found which seem to say that the liability thus imposed is a species of liability without fault, not dependent upon proof of negligence or other fault. See Mahnich v. Southern S. S. Co., supra, 321 U.S. at page 103, 64 S.Ct. at page 459; Seas Shipping Co., Inc. v. Sieracki, 1946, 328 U.S. 85, 94-95, 66 S.Ct. 872, 90 L.Ed. 1099; The H. A. Scandrett, 2 Cir., 1937, 87 F.2d 708, 710; Kulukundis v. Strand, 9 Cir., 1953, 202 F.2d 708, 710. See also Woodbury, J., in Doucette v. Vincent, supra, 194 F.2d 834, 838. Just how this form of statement got in the books we are not quite sure. So far as we can find, one of the first instances in which a court referred to the shipowner’s obligation in respect of seaworthiness as being “absolute” or as a kind of liability without fault is the opinion by Augustus N. Hand, J., in The H. A. Scandrett, supra, 87 F.2d at page 710. Judge Hand stated that he thought this conclusion followed from what the Supreme Court had said in The Osceola, 1903, 189 U.S. 158, 23 S.Ct. 483, 47 L.Ed. 760. The Court (at page 175 of 189 U.S. at page 487 of 23 S.Ct.) did make the unqualified statement, by way of dictum: “That the vessel and her owner are, both by English and American law, liable to an indemnity for injuries received by seamen in consequence of" }, { "docid": "22904021", "title": "", "text": "in order to insure that it is satisfactorily completed in accordance with the requirements of the contract does not of itself make the hirer of an independent contractor liable for harm resulting from negligence in conducting the details of the work.” American has continually asserted that there was an issue as to control of the operation, but we see virtually no evidence to support its contention. And had there been, the question would properly have been one for the jury. We are clear that since control of the details of the operation was left to American, Cyprien cannot be held for negligence in the latter's performance. The Supreme Court has recently held that an owner’s absolute duty to provide a seaworthy vessel, together with its appurtenant appliances and equipment, is not affected by relinquishment of control to another. The owner is liable even for defects in equipment brought aboard by a stevedore and used under the stevedore’s sole control. Alaska S. S. Co. v. Petterson, 347 U.S. 396, 74 S.Ct. 601, affirming Petterson v. Alaska S. S. Co., 9 Cir., 205 F.2d 478. This appears to be contrary to a line of cases in this circuit: Grasso v. Lorentzen, 2 Cir., 149 F.2d 127, certiorari denied 326 U.S. 743, 66 S.Ct. 57, 90 L.Ed. 444; Lauro v. United States, 2 Cir., 162 F.2d 32; Lynch v. United States, 2 Cir., 163 F.2d 97; Mollica v. Compania Sud-Amerieana de Vapores, 2 Cir., 202 F.2d 25, certiorari denied Compania Sud-Americana de Vapores v. Mollica, 345 U.S. 965, 73 S.Ct. 952, 97 L.Ed. 1384; Gallagher v. United States Lines Co., supra; and to the same effect Lopez v. American Hawaiian S. S. Co., 3 Cir., 201 F.2d 418, certiorari denied 345 U.S. 976, 73 S.Ct. 1125, 97 L.Ed. 1391; see discussion and criticism in 102 U. of Pa.L.Rev. 402. But that, as we view it, does not control the issue before us. In its basic form the doctrine of seaworthiness imposes a warranty on the shipowner that the ship and its equipment are not defective. Mahnich v. Southern S. S. Co., 321 U.S." }, { "docid": "8343854", "title": "", "text": "Maryland, 4 Cir., 85 F.2d 944. With respect to insurers or shippers of goods, the vessel and its owners may be relieved of liability if they can show that they used due diligence to make the ship seaworthy at the beginning of the voyage and to secure that the ship is properly manned, equipped and supplied. 27 Stat. 445, 46 U.S.C.A. § 192; 49 Stat. 1210, 46 U.S.C.A. § 1304; The Titania, D.C.S.D.N.Y., 19 F. 101; The Floridian, 2 Cir., 83 F.2d 949. The Supreme Court has recently held that an owner’s absolute duty to longshoremen to provide a seaworthy vessel, together with its appurtenant appliances and equipment, is not affected by relinquishment of control to another. The owner is liable for defects in equipment brought aboard by a stevedore and used under the stevedore’s sole control. Alaska S.S. Co. v. Petterson, 347 U.S. 396, 74 S.Ct. 601, 98 L.Ed. 798, affirming Petterson v. Alaska S.S. Co., 9 Cir., 205 F.2d 478; Rogers v. United States Lines, 347 U.S. 984, 74 S.Ct. 849, 98 L.Ed. 1120; reversing Rogers v. United States Lines, 3 Cir., 205 F.2d 57. However, the shipowner is not liable for injuries resulting solely from the manner in which the work was done by the stevedore and its employees. Berti v. Compagnie De Nav. Cyprien Fabre, 2 Cir., 213 F.2d 397, 400. The ship and its owners are not insurers of the safety of men working on shipboard. Jones v. Gould Steamships & Industrials, Ltd., D.C.Md., 300 F. 109, affirmed 4 Cir., 10 F.2d 792. The owner’s absolute duty or warranty has been extended to the adequacy and competency of the crew. The State of Maryland, 4 Cir., 85 F.2d 944; Berti v. Compagnie De Nav. Cyprien-Fabre, 2 Cir., 213 F.2d 397; Keen v. Overseas Tankship Corp., 2 Cir., 194 F.2d 515, certiorari denied 343 U.S. 966, 72 S.Ct. 1061, 96 L.Ed. 1363. “But it has never been held that it requires the best possible equipment, see Doucette v. Vincent, 1 Cir., 194 F.2d 834, or that the crew will be free from negligence. (Citing cases.) It" }, { "docid": "22904022", "title": "", "text": "S. S. Co., 9 Cir., 205 F.2d 478. This appears to be contrary to a line of cases in this circuit: Grasso v. Lorentzen, 2 Cir., 149 F.2d 127, certiorari denied 326 U.S. 743, 66 S.Ct. 57, 90 L.Ed. 444; Lauro v. United States, 2 Cir., 162 F.2d 32; Lynch v. United States, 2 Cir., 163 F.2d 97; Mollica v. Compania Sud-Amerieana de Vapores, 2 Cir., 202 F.2d 25, certiorari denied Compania Sud-Americana de Vapores v. Mollica, 345 U.S. 965, 73 S.Ct. 952, 97 L.Ed. 1384; Gallagher v. United States Lines Co., supra; and to the same effect Lopez v. American Hawaiian S. S. Co., 3 Cir., 201 F.2d 418, certiorari denied 345 U.S. 976, 73 S.Ct. 1125, 97 L.Ed. 1391; see discussion and criticism in 102 U. of Pa.L.Rev. 402. But that, as we view it, does not control the issue before us. In its basic form the doctrine of seaworthiness imposes a warranty on the shipowner that the ship and its equipment are not defective. Mahnich v. Southern S. S. Co., 321 U.S. 96, 64 S.Ct. 455, 88 L.Ed. 561; The Osceola, 189 U.S. 158, 23 S.Ct. 483, 47 L.Ed. 760. That warranty has been extended to the adequacy and competency of the crew. Keen v. Overseas Tankship Corp., 2 Cir., 194 F.2d 515, certiorari denied Overseas Tankship Corp. v. Keen, 343 U.S. 966, 72 S.Ct. 1061, 96 L.Ed. 1363; Yates v. Dann, D.C.Del., 11 F.R.D. 386; cf. The Rolph, 9 Cir., 299 F. 52, certiorari denied Rolph Navigation & Coal Co. v. Kohilas, 266 U.S. 614, 45 S.Ct. 96, 69 L.Ed. 468. But it has never been held that it requires the best possible equipment, see Doucette v. Vincent, 1 Cir., 194 F.2d 834, or that the crew will be free from negligence. See Keen v. Overseas Tankship Corp., supra, 2 Cir., 194 F.2d at page 518; cf. Cookingham v. United States, 3 Cir., 184 F.2d 213, certiorari denied 340 U.S. 935, 71 S.Ct. 495, 95 L.Ed. 675; Larsson v. Coastwise (Pacific Far East) Line, 9 Cir., 181 F.2d 6, certiorari denied 340 U.S. 833, 71 S.Ct." }, { "docid": "14319241", "title": "", "text": "Cir., 181 F.2d 383, cer-tiorari denied 340 U.S. 829, 71 S.Ct. 66, 95 L.Ed. 609. . Seas Shipping Co. v. Sieracki, 328 U.S. 85, 66 S.Ct. 872, 90 L.Ed. 1099; Mah-nieh v. Southern S.S. Co., 321 U.S. 96, 64 S.Ct. 455, 88 L.Ed. 561; The Osceola, 189 U.S. 158, 23 S.Ct. 483, 47 L.Ed. 760; Sabine Towing Co. v. Brennan, 5 Cir., 72 F.2d 490, certiorari denied 293 U.S. 611, 55 S.Ct. 141, 79 L.Ed. 701. . Although the liability for unseaworthiness like that for negligence is imposed by law so that neither may be effectively disclaimed, the former is a species of liability regardless of fault imposed on the theory that the owner, unlike the worker, is in a position to distribute the loss in the shipping community which receives the service and should bear the cost. Seas Shipping Co. v. Sieracki, 328 U.S. 85, 93-94, 66 S.Ct. 872, 90 L.Ed. 1099. . Seas Shipping Co. v. Sieracki, supra. . See The Cleveco, 6 Cir., 154 F.2d 605. Cf. In re East River Towing Co., 266 U. S. 355, 45 S.Ct. 114, 69 L.Ed. 324. . Ex parte Green, 286 U.S. 437, 439-440, 52 S.Ct. 602, 76 L.Ed. 1212. . Cf. Providence & New York S.S. Co. v. Hill Mfg. Co., 109 U.S. 578, 594-595, 3 S. Ct. 379, 27 L.Ed. 1038; Black Diamond S. S. Corp. v. Robert Stewart & Son, 336 U.S. 386, 393, 69 S.Ct. 622, 93 L.Ed. 754. . Admiralty Rule 51, 28 U.S.C.A. . Hartford Accident & Indemnity Co. v. Southern Pacific Co., 273 U.S. 207, 47 S. Ct. 357, 71 L.Ed. 612; Just v. Chambers, 312 U.S. 383, 61 S.Ct. 687, 85 L.Ed. 903; Spencer Kellogg & Sons v. Hicks, 285 U. S. 502, 52 S.Ct. 450, 76 L.Ed. 903. These cases were relied upon by petitioner-ap-pellee to show the exclusivity of admiralty jurisdiction in a no-fund case. However, they merely establish the continuing jurisdiction in admiralty to dispose of the remaining issues after denying limitation and the right of the claimants to insist upon the exercise of such jurisdiction. . See Note" }, { "docid": "23505847", "title": "", "text": "States, 3 Cir., 184 F.2d 213, certiorari denied 340 U.S. 935, 71 S.Ct. 495, 95 L.Ed. 675; Adamowski v. Gulf Oil Corp., D.C., 93 F.Supp. 115, affirmed 3 Cir., 197 F.2d 523; Daniels v. Pacific-Atlantic S. S. Co., D.C.E.D.N.Y., 120 F.Supp. 96; The Seeandbee, 6 Cir., 102 F.2d 577. The Petterson case, later decided, makes it plain that the results reached in this line of cases cannot be justified by the mere fact that the existence of such a condition was not brought to the knowledge of the owner or that he lacked opportunity to prevent or correct the condition. Nevertheless, that opinion does not go so far as to hold that unseaworthiness arises from every defect in a vessel or in its equipment and maintenance, whether consisting of a transitory substance or otherwise. As to this, subsequent to the Petterson decision the Supreme Court has held, in a suit by a seaman for an assault by a fellow member of the crew, that the owner was liable but only because the oifending seaman was not “ ‘equal in disposition and seamanship to the ordinary men in the calling.’ ” Boudoin v. Lykes Bros. S. S. Co., 348 U.S. 336, 75 S.Ct. 382, 384. In the Boudoin opinion the court makes it abundantly clear that it has not overruled the long-settled doctrine that to be seaworthy a vessel does not need to be free from all cause for mishap, — that it is enough if it is reasonably fit. In its opinion the court cited The Silvia, 171 U.S. 462, 19 S.Ct. 7, 8, 43 L.Ed. 241, for its statement that “the test of seaworthiness [in a cargo suit] is whether the vessel is reasonably fit to carry the cargo.” (Emphasis supplied.) And to like effect it cited The Southwark, 191 U.S. 1, 24 S.Ct. 1, 48 L.Ed. 65. It approved the use made of this test in Keen v. Overseas Tankship Corp., 2 Cir., 194 F.2d 515, quoting from Judge Learned Hand’s opinion in that case as well as from his opinion in Jones v. Lykes Bros. S. S." }, { "docid": "7944305", "title": "", "text": "which knowledge of the circumstances creating the unseaworthiness is immaterial. Seas Shipping Company v. Sieracki, 328 U.S. 85, 66 S.Ct. 872, 90 L.Ed. 1099; Work v. Leathers, 97 U.S. 379, 24 L.Ed. 1012; The Edwin I. Morrison, 153 U.S. 199, 210, 14 S.Ct. 823, 38 L.Ed. 688; Mahnich v. Southern S. S. Co., 321 U.S. 96, 100, 64 S.Ct. 455, 88 L.Ed. 561; The H. A. Scandrett, 2 Cir., 87 F.2d 708, 710; Balado v. Lykes Bros. S. S. Co., 2 Cir., 179 F.2d 943, 945. 3. A shipowner’s warranty of seaworthiness covers the competence of the crew as well as the integrity of the vessel. The Osceola, 189 U.S. 158, 23 S.Ct. 483, 47 L.Ed. 760; In re Pacific Mail Steamship Company, 9 Cir., 130 F. 76, 69 L.R.A. 71; The Rolph, 9 Cir., 299 F. 52; Spellman v. American Barge Line, 3 Cir., 176 F.2d 716; Keen v. Overseas Tankship Corp., 2 Cir., 194 F.2d 515. 4. Applied to a seaman, such a warranty is not that the seaman is competent to meet all contingencies, but that he is equal in disposition and seamanship to the ordinary men in the calling. Keen v. Overseas Tankship Corporation, supra. 5. Manuel Gonzales was during the voyage in question not equal in disposition and seamanship to the ordinary men in the calling of seamen and his shortcoming in this regard was a proximate cause of plaintiff’s injuries. 6. It is the duty of officers of a vessel to maintain proper discipline among the crew and, particularly, to suppress those disorderly acts of seamen which may reasonably be expected to result in injury to members of the crew. Jensen v. United States, 3 Cir., 184 F.2d 72, 1950 A.M.C. 1797; Koehler v. Presque-Isle Transportation Company, 2 Cir., 141 F.2d 490, 1944 A.M.C. 432. 7. The failure of the officers of the vessel to suppress the seamen’s drinking party aboard ship which they knew or should have known had been going on for several hours and which they should have anticipated might lead to an assault by one seaman on another is negligence" } ]

[ { "docid": "22662467", "title": "", "text": "the error did not influence the jury, or had but very slight effect, the verdict and the judgment should stand, except perhaps where the departure is from a constitutional norm or a specific command of Congress. Bruno v. United States, supra, at 294. But if one cannot say, with fair assurance, after pondering all that happened without stripping the erroneous action from the whole, that the judgment was not substantially swayed by the error, it is impossible to conclude that substantial rights were not affected. The inquiry cannot be merely whether there was enough to support the result, apart from the phase affected by the error. It is rather, even so, whether the error itself had substantial influence. If so, or if one is left in grave doubt, the conviction cannot stand. Discussion, some of it recent, has undertaken to formulate the problem in terms of presumptions. In view of the statement quoted above from the House Committee’s report, it would seem that any attempt to create a generalized presumption to apply in all cases would be contrary not only to the spirit of § 269 but also to the expressed intent of its legislative sponsors. Indeed, according to their explicit statement, whether the burden of establishing that the error affected substantial rights or, conversely, the burden of sustaining the verdict shall be imposed, turns on whether the error is “technical” or is such that “its natural effect is to prejudice a litigant’s substantial rights.” Indeed the statement, in entire accord with the letter and spirit of § 269, is an injunction against attempting to generalize broadly, by presumption or otherwise. The only permissible presumption would seem to be particular, arising from the nature of the error and “its natural effect” for or against prejudice in the particular setting. It follows that the Berger case is not controlling of this one, notwithstanding that, abstractly considered, the errors in variance and instructions were identical in character. The B erger opinion in deed expressly declared: “We do not mean to say that a variance such as that here dealt with might not" } ]

[ { "docid": "20449470", "title": "", "text": "swayed by the error”: If, when all is said and done, the [court’s] conviction is sure that the error did not influence the jury, or had but very slight effect, the verdict and the judgment should stand .... But if one cannot say, with fair assurance, after pondering all that happened without stripping the erroneous action from the whole, that the judgment was not substantially swayed by the error, it is impossible to conclude that substantial rights were not affected. The inquiry cannot be merely whether there was enough to support the result, apart from the phase affected by the error. It is rather, even so, whether the error itself had substantial influence. If so, or if one is left in grave doubt, the conviction cannot stand. O’Neal, 513 U.S. at 437-38, 115 S.Ct. at 995 (quoting Kotteakos, 328 U.S. at 764-65, 66 S.Ct. at 1248) (brackets and ellipsis in O’Neal) (emphasis omitted). The Brecht standard “does not require a showing that but for the error the jury would have rendered a verdict in favor of the defendant.” Duest v. Singletary, 997 F.2d 1336, 1338 (11th Cir.1993). Nor does it matter whether the reviewing court believes the petitioner is guilty, for the “crucial thing is the impact of the thing done wrong on the minds of [the jurors] ... in the total setting.” Id. (quoting Kotteakos, 328 U.S. at 764, 66 S.Ct. at 1247-48). But although the Brecht harmless error analysis “is necessarily fact-specific and must be performed on a case-by-case basis, the erroneous admission of evidence is likely to be harmless under the Brecht standard where there is significant corroborating evidence, or where other evidence of guilt is overwhelming.” Mansfield, 679 F.3d at 1313 (citations omitted). With this framework in mind, we consider the impact of Martz’s false testimony on the verdict. When we do so, we readily conclude that the challenged portions of Martz’s testimony did not have a substantial and injurious effect or influence in determining the jury’s guilty verdict. Thus, any assumed Giglio error was harmless. First, we note that Trepal’s is not a typical Giglio" }, { "docid": "6615330", "title": "", "text": "no mistake. Because Sanders’ prior convictions could only “prove the character of [Sanders] in order to show action and conformity therewith,” we hold that the district court erred in admitting this evidence under Rule 404(b). III There remains the question whether, as the Government contends, the error was harmless as to either or both convictions. A The admission of Sanders’ prior convictions was not harmless error as to his assault conviction. The assault prosecution turned essentially upon the jury’s assessment of the relative credibility of Sanders and Jenkins, the direct protagonists, who gave widely conflicting versions of the stabbing. In such a situation, evidence having no possible basis except to show a propensity for violence on the part of the defendant obviously has the capacity to tip the balance in such a swearing contest. As we have previously noted, “[i]n the realm of nonconstitutional error, the appropriate test of harmlessness ... is whether we can say ‘with fair assurance, after pondering all that happened without stripping the erroneous action from the whole, that the judgment was not substantially swayed by the error.’ ” United States v. Nyman, 649 F.2d 208, 211-12 (4th Cir.1980) (citation omitted) (quoting Kotteakos v. United States, 328 U.S. 750, 765, 66 S.Ct. 1239, 1248, 90 L.Ed. 1557 (1946)). One of the “ ‘decisive factors’ ” in applying this standard is the closeness of the case. Id. at 212 (quoting Gaither v. United States, 413 F.2d 1061 (D.C.Cir.1969)). Here, there are the critical facts that the jury could not reach a verdict on the assault charge at Sanders’ first trial and that the second jury deliberated for some hours before reaching a guilty verdict in a relatively simple, straightforward case. And there is the further fact that the jury ultimately convicted Sanders of a lesser offense than that for which he was indicted. Under these circumstances, we cannot say “with fair assurance ... that the judgment was not substantially swayed” by the erroneous admission of this obviously damaging evidence. B We conclude, however, that the error in admitting the evidence of the prior convictions was harmless as" }, { "docid": "23060118", "title": "", "text": "the district court’s improper admission of the evidence of Haywood’s December 1997 crack cocaine possession requires us to reverse Haywood’s conviction. In making this decision, we examine the likely effect that the inadmissible evidence had on the jury’s verdict. Specifically, we will presume that the district court’s error was reversible unless we can say, “with fair assurance, after pondering all that happened without stripping the erroneous action from the whole, that the judgment was not substantially swayed by the error.... ” Kotteakos v. United States, 328 U.S. 750, 765, 66 S.Ct. 1239, 90 L.Ed. 1557 (1946). Whether the jury was “substantially swayed” by the improper admission of evidence of other acts in a criminal trial generally depends on whether the properly admissible evidence of the defendant’s guilt was overwhelming. Compare United States v. Murphy, 241 F.3d 447, 453 (6th Cir.2001) (holding that the district court’s improper failure to analyze the admissibility of evidence of other acts was harmless error in light of the overwhelming evidence of the defendant’s guilt), with United States v. Blanton, 520 F.2d 907, 909-10 (6th Cir.1975) (holding that the deliberate injection of testimony concerning another wholly unrelated offense in which the defendant was allegedly involved was reversible error because the evidence of the defendant’s guilt was not “so overwhelming that the error could not possibly have influenced the jury’s decision or affected the substantial rights of the defendant”). Haywood’s guilt was significantly contested in the present case. Although the government offered sufficient proof that Haywood was the one who sold the crack cocaine to Spears on August 1, 1997 to reach the jury, this evidence was not overwhelming in light of the conflicting evidence indicating that it was actually Liles who sold the crack cocaine to Spears. Most notably, Agent Spiccochi testified that Spears told him just after the August 1, 1997 sale that Liles was the seller. Agent Spicocchi’s report on the sale, as well as his testimony before the grand jury, also reflect that Spears initially stated that he purchased the crack cocaine from Liles rather than Haywood. In the absence of overwhelming evidence" }, { "docid": "14077329", "title": "", "text": "S.Ct. 1239, 1246, 90 L.Ed. 1557, a leading case on the subject. There the Supreme Court, reversing the decision of the Circuit Court of Appeals that, while there was error in joining in one count against a defendant several separate conspiracies, such joinder must be regarded as harmless error, said, quoting from the House Report on the Harmless Error Statute, the predecessor of the rule: “If the error is of such a character that its natural effect is to prejudice a litigant’s substantial rights, the burden of sustaining a verdict will, notwithstanding this legislation rest upon the one who claims under it.” The court then went on to say: “Moreover, lawyers know, if others do not, that what may seem technical may embody a great tradition of justice. * * *” and further: “But if one cannot say, with fair assurance, after pondering all that happened without stripping the erroneous action from the whole, that the judgment was not substantially swayed by the error, it is impossible to conclude that substantial rights were not affected. The inquiry cannot be merely whether there was enough to support the result, apart from the phase affected by the error. It is rather, even so, whether the error itself had substantial influence. If so, or if one is left in grave doubt, the conviction cannot stand.” A district court case, in which the judge correctly applied the rule to situations of the kind involved here is United States v. Harvick, D.C., 153 F.Supp. 696. I agree, of course, with the majority that the story the evidence tells is sordid and the character it establishes for the two defendants is one of depravity and debauchery on a par with their so-called victims, both professional prostitutes, but this in no manner changes the law which requires a defendant to be tried and convicted, not of general baseness but of the offense for which he is indicted. In my opinion the judgment should be reversed and the cause remanded with directions to set aside the joinder order. Rehearing denied: HUTCHESON, Circuit Judge, dissenting. . Sec. 2421 “Transportation" }, { "docid": "15665495", "title": "", "text": "could have doubted that Terrance Matthews knowingly and willfully entered into a conspiracy to distribute cocaine if it found beyond a reasonable doubt that he did what his alleged co-conspirators said he did. Accordingly, evidence of Matthews’s 1991 arrest could have served no purpose other than to prove a criminal propensity, and its admission was an abuse of discretion. B. The Government urges that we should nevertheless affirm Matthews’s conviction because any error in admitting evidence regarding his 1991 arrest was harmless. See 28 U.S.C. § 2111; Fed. R.Crim.P. 52(a); Fed.R.Evid. 103(a). “[E]videntiary and other nonconstitutional errors do not constitute grounds for reversal unless there is a reasonable likelihood that they affected the defendant’s substantial rights; where an error had no substantial influence on the outcome, and sufficient evidence uninfected by error supports the verdict, reversal is not warranted.” United States v. Hawkins, 905 F.2d 1489, 1493 (11th Cir.1990). If, however, we “cannot say, with fair assurance, after pondering all that happened without stripping the erroneous action from the whole, that the judgment was not substantially swayed by the error, it is impossible to conclude that substantial rights were not affected.” Kotteakos v. United States, 328 U.S. 750, 765, 66 S.Ct. 1239, 1248, 90 L.Ed. 1557 (1946). The question is not “merely whether there was enough to support the result, apart from the phase affected by the error.” Id. The question is “whether the error itself had substantial influence. If so, or if one is left in grave doubt, the conviction cannot stand.” Id. The Government bears the burden of persuasion on this issue. See United States v. Olano, 507 U.S. 725, 734, 113 S.Ct. 1770, 123 L.Ed.2d 508 (1993). The error committed here cannot be deemed harmless. There is at least a “reasonable likelihood” that it had an effect on the jury verdict. Consequently, we are “left in grave doubt” as to whether the error influenced the jury, and we certainly “cannot say, with fair assurance,” that it did not. As noted above, the Government itself argues that it “needed the extrinsic offense evidence to satisfy its heavy burden”" }, { "docid": "12326517", "title": "", "text": "Evans, supra, 400 U.S. at 87. Because we find no constitutional error, we use the traditional standard to determine whether the error was harmless. Compare Chapman v. California, 1967, 386 U.S. 18, 24, 87 S.Ct. 814, 17 L.Ed.2d 705 (constitutional error) with Kotteakos v. United States, 1946, 328 U.S. 750, 764-765, 66 S.Ct. 1239, 90 L.Ed. 1557 (nonconstitutional error). The standard applicable to nonstitutional error was stated in Kotteakos: If, when all is said and done, the conviction [court] is sure that the error did not influence the jury, or had but very slight effect, the verdict and the judgment should stand . But if one cannot say, with fair assurance, after pondering all that happened without stripping the erroneous action from the whole, that the judgment was not substantially swayed by the error, it is impossible to conclude that substantial rights were not affected. The inquiry cannot be merely whether there was enough to support the result, apart from the phase affected by the error. It is rather, even so, whether the error itself had substantial influence. If so, or if one is left in grave doubt, the conviction cannot stand. 328 U.S. at 764-765. See Fed.R.Crim.P. 52(a). The standard for determining the harmlessness of error under Kotteakos is more strict than that for determining whether the admission of hearsay testimony violates the confrontation clause under Dutton. In other words, hearsay testimony that is neither “crucial” nor “devastating” under Dutton may nevertheless amount to reversible error under Kotteakos. In the case before the Court, however, the evidence against Pino and Curbelo was overwhelming. We conclude that the hearsay testimony, even if improperly admitted, had no substantial effect on the verdict. VI. The appellants raise six other contentions. They maintain that (1) the evidence was insufficient to convict Pino and Curbelo of unlawfully importing marijuana; (2) the Government failed to correct perjurous statements of Ortiz, the chief government witness; (3) the Government violated a pretrial discovery order by not disclosing to the appellants an oral exculpatory statement made by Curbelo at the time of his arrest; (4) the Government failed" }, { "docid": "11499387", "title": "", "text": "of infringement of substantive rights as a sufficient basis for holding that alleged criminal discovery violation was not reversible error). In Grier we explained that: “The ‘substantive rights’ or ‘substantial rights’ standard this court utilized in United States v. Bastanipour, 697 F.2d 170, 175 (7th Cir.1982), stems from Federal Rule of Criminal Procedure 52(a) which states that: ‘Any error, defect, irregularity or variance which does not affect substantial rights shall be disregarded.’ Unlike the harmless error standard, the government is not required to demonstrate that the error was harmless beyond a reasonable doubt. Rather, the government must establish only that the error had no ‘substantial influence on the verdict.’ United States v. Kotteakos, [328 U.S. 750, 765, 66 S.Ct. 1239, 1248, 90 L.Ed. 1557 (1946)]. The Supreme Court in Kotteakos, [328 U.S. at 764-65, 66 S.Ct. at 1247-48], explained the standard in the following manner: ‘If, when all is said and done, the conviction is sure that the error did not influence the jury, or had but very slight effect, the verdict and the judgment should stand, except perhaps where the departure is from a constitutional norm or a specific command of Congress. But if one cannot say, with fair assurance, after pondering all that happened without stripping the erroneous action from the whole, that the judgment was not substantially swayed by the error, it is impossible to conclude that substantial rights were not affected. The inquiry cannot be merely whether there was enough to support the result, apart from the phrase affected by the error. It is rather, even so, whether the error itself had substantial influence.’ (Footnote and citation omitted).” Herrero alleges that he was prejudiced because the change in defense theories necessitated as a result of the newly discovered evidence raised questions in the jury’s mind that could only be resolved through Herrero’s testimony, and thus put Herrero in a position where he was impermissibly pressured to testify. We disagree with Herrero as his assertion falls far short of squaring with the facts in the record. Pri- or to hearing the fingerprint testimony, the court informed the" }, { "docid": "2802339", "title": "", "text": "witnesses on the stand. See Fed.R.Evid. 608(a) advisory committee’s note. Accordingly, the Federal Rules allow the introduction of opinion or reputation testimony to attack a witness’s credibility, but limit such good character testimony to situations where the witness’s veracity has already been specifically impugned. In contrast to a witness’s general character for truthful ness or untruthfulness, which is largely peripheral to the facts at issue in a given case, the question of a witness’s potential bias is both particularized and case-specific. The presence or absence of bias has relevance because it speaks to whether a witness has an interest in this case, or a particular affinity or dislike for this party. See United States v. Abel, 469 U.S. 45, 51, 105 S.Ct. 465, 83 L.Ed.2d 450 (1984) (“A successful showing of bias on the part of a witness would have a tendency to make the facts to which he testified less probable in the eyes of the jury than it would be without such testimony.”); United States v. Akitoye, 923 F.2d 221, 225 (1st Cir.1991) (if the cross-examiner may bring out facts tending to show bias, “it follows that the cross-examiner can be allowed some latitude, in an appropriate case, to bring out the absence of bias-producing facts and circumstances, thereby strengthening the credibility of a helpful witness”). In light of its disparate focus, we do not see why Rule 608(a) would apply. Even if Rule 608(a) should not have been used to exclude the fact of John and Don Tyson’s immunity, though, any error made by the district court in this case was harmless. When reviewing non-constitutional trial error, we apply the standard articulated in Kotteakos v. United States, asking whether we can say “with fair assurance, after pondering all that happened without stripping the erroneous action from the whole, that the judgment was not substantially swayed by the error....” 328 U.S. 750, 765, 66 S.Ct. 1239, 90 L.Ed. 1557 (1946). In so doing, we cannot merely replicate our previous sufficiency-of-the-evidence inquiry; rather, we ask “even so, whether the error itself had substantial influence” on the jury. Id. In" }, { "docid": "1975331", "title": "", "text": "then stated: “ ‘But if one cannot say, with fair assurance, after pondering all that happened, without stripping the erroneous action from the whole, that the judgment was not substantially swayed by the error, it is impossible to conclude that substantial rights were not affected. The inquiry cannot be merely whether there was enough to support the result, apart from the phase affected by the error. It is rather, even so, whether the error itself had substantial influence. If so, or if one is left in grave doubt, the conviction cannot stand.’ (Citation and footnote omitted.)” Applying these principles, the Court holds that the testimony here challenged was not of such an exceptionally prejudicial character that its withdrawal from the consideration of the jury, with appropriate instructions, could not remove whatever harmful effect that may have been caused by its injection into the trial. United States v. Farber, (C.A.6, 1964) 336 F.2d 586. Accordingly, defendant’s second ground for new trial is held to be without merit. Defendant’s next contention is that the Court erred in withholding action upon defendant’s motion for mistrial until all proof was in, thereby precluding defendant from obtaining and offering testimony in rebuttal to the challenged testimony of Dr. Demos. The Court did reserve final action upon the defendant’s motion for mistrial until completion of the trial. The purpose of this was to permit the Court to better judge the possible prejudicial effect of the objectionable testimony in the light of all of the record and after proper exclusionary and cautionary instructions were given by the Court and after the Court had the benefit of a poll of the jury following the verdict. The defendant could scarcely have been misled or prejudiced by the procedure as he was immediately aware that the Court had not granted the motion for mistrial but rather had given instructions to the jury to disregard the testimony. Defendant took no exception to the Court’s action in this regard. Moreover, there was no indication by the defendant of any desire to have the proof re-opened for any purpose. Defendant having failed to" }, { "docid": "1095091", "title": "", "text": "v. Frady, 456 U.S. 152, 163 n. 14, 102 S.Ct. 1584, 1592 n. 14, 71 L.Ed.2d 816 (1982); United States v. Cousins, supra. When, as in this case, plain error is asserted, appellant “bears the burden of persuasion with respect to prejudice.” United States v. Olano, — U.S. —, 113 S.Ct. 1770, 1778, 123 L.Ed.2d 508 (1993). We find no plain error in admission of Ann’s testimony. V. Conclusion Having held that the military judge abused his discretion by permitting trial counsel to read M’s pretrial statements to the court members, we must determine whether the error requires reversal. Art. 59(a), UCMJ, 10 USC § 859(a). We hold that it does. Before this Court may hold that a finding of guilty is incorrect “on the ground of an error of law,” we must hold that “the error materially prejudices the substantial rights of the accused.” Art. 59(a); Mil.R.Evid. 103(a). This requirement is similar to Fed.R.Crim.P. 52(a), which provides: “Any error, defect, irregularity or variance which does not affect substantial rights shall be disregarded.” Once appellant has met his threshold burden of showing that an error has occurred which is “of such a character that its natural effect is to prejudice a litigant’s substantial rights,” the burden shifts to the Government to persuade us that the error was harmless. Kotteakos v. United States, 328 U.S. 750, 760, 66 S.Ct. 1239, 1245, 90 L.Ed. 1557 (1946). See United States v. Olano, — U.S. at —, 113 S.Ct. at 1778 (contrasting Government’s burden of persuasion for harmless error with appellant’s burden of persuasion for plain error). In Kotteakos the Supreme Court explained the harmless-error rule as follows: But if one cannot say, with fair assurance, after pondering all that happened without stripping the erroneous action from the whole, that the judgment was not substantially swayed by the error, it is impossible to conclude that substantial rights were not affected. The inquiry cannot be merely whether there was enough to support the result, apart from the phase affected by the error. It is rather, even so, whether the error itself had substantial influence. If" }, { "docid": "13144268", "title": "", "text": "no longer worked for the county coroner’s office, but the record provides no reason why Dr. Garber’s presence could not be obtained nonetheless. He was therefore not shown to have been “unavailable” for trial. See id. His conflicting and unsupported testimony at the preliminary hearing formed the very basis for Merolillo’s counsel to object at the section 995 hearing. The California Court of Appeal held that the trial court erred in admitting Dr. Garber’s opinion testimony. Neither the district court nor the government has seriously challenged the finding that Merolillo’s right to confront witnesses against him was violated by the admission of Dr. Garber’s opinion testimony. Though the state court and the district court held the error to be harmless, both found that the trial court erred in allowing Dr. Garber’s opinion to be introduced. We agree that the trial court erred in admitting Dr. Garber’s opinion. B. Even where constitutional error is found, “in § 2254 proceedings a court must [also] assess the prejudicial impact of constitutional error” under the Brecht standard. Fry v. Pliler, 551 U.S. 112, 121-22, 127 S.Ct. 2321, 168 L.Ed.2d 16 (2007) (citing Brecht v. Abrahamson, 507 U.S. 619, 113 S.Ct. 1710, 123 L.Ed.2d 353 (1993)); Bains v. Cambra, 204 F.3d 964, 977 (9th Cir.2000). Habeas relief is warranted only if the error had a “substantial and injurious effect or influence in determining the jury’s verdict.” Brecht, 507 U.S. at 637-38, 113 S.Ct. 1710 (invoking the harmless error test in Kotteakos v. United States, 328 U.S. 750, 66 S.Ct. 1239, 90 L.Ed. 1557 (1946)) (internal quotation marks omitted); DePetris v. Kuykendall, 239 F.3d 1057, 1061 (9th Cir.2001). The Supreme Court has explained: [I]f one cannot say, with fair assurance, after pondering all that happened without stripping the erroneous action from the whole, that the judgment was not substantially swayed by the error, it is impossible to conclude that substantial rights were not affected. The inquiry cannot be merely whether there was enough to support the result, apart from the phase affected by the error. It is rather, even so, whether the error itself had substantial" }, { "docid": "5991235", "title": "", "text": "nightmares. The prosecution relied primarily on the former testimony, not the latter. IV Although the evidence taken in the light most favorable to the government is sufficient to sustain Dr. Wood’s conviction for involuntary manslaughter, and while the errors identified above might be harmless when viewed individually, under the particular circumstances of this case the erroneous denial of Dr. Wood’s first motion for judgment of acquittal on the charges of first and second-degree murder and the erroneous admission of testimony in violation of Fed.R.Evid. 403 and 704(b) constitute cumulative error requiring reversal. A cumulative error analysis aggregates all the errors that individually might be harmless, “and it analyzes whether their cumulative effect on the outcome of the trial is such that collectively they can no longer be determined to be harmless.” United States v. Rivera, 900 F.2d 1462, 1470 (10th Cir.1990) (en banc). “The harmlessness of cumulative error is determined by conducting the same inquiry as for individual error — courts look to see whether the defendant’s substantial rights were affected.” Id. (citing United States v. Kartman, 417 F.2d 893, 894, 898 (9th Cir.1969)). Thus our cumulative error analysis must focus on “ ‘the underlying fairness of the trial.’ ” Id. at 1469 (quoting Delaware v. Van Arsdall, 475 U.S. 673, 681, 106 S.Ct. 1431, 89 L.Ed.2d 674 (1986) (citation omitted)). The standard for this analysis in cases of non-constitutional error is set forth in Kotteakos v. United States, 328 U.S. 750, 762, 66 S.Ct. 1239, 90 L.Ed. 1557 (1946): “Necessarily the character of the proceeding, what is at stake upon its outcome, and the relation of the error[s] asserted to casting the balance for decision on the case as a whole, are material factors in judgment.” The Kotteakos Court elaborated that “if one cannot say, with fair assurance, after pondering all that happened without stripping the erroneous action from the whole, that the judgment was not substantially swayed by the error[s], it is impossible to conclude that substantial rights were not affected.” Id. at 765. The applicable standard is thus different than that applied when determining if the evidence" }, { "docid": "3058731", "title": "", "text": "abuse of the district court’s discretion. The government argues in the alternative that the error was harmless. We disagree as to the two drug-related charges, though the evidence of Miller’s guilt in this case was strong. Police found a scale suitable for measuring drugs, and crack cocaine packaged for distribution, both in shoe boxes containing Miller’s personal papers. Miller initially tried to flee the scene and later wrote a letter to a witness asking her to he (assuming that the government’s theory of the evidence was correct) about where he was staying in the house. Miller presented a vigorous defense, and the government attacked the credibility of his defense witnesses. That does not mean the error here was harmless. In deciding whether the non-constitutional error was harmless, we do not try to guess what the jury might have decided if it had not known that Miller had been convicted of this same crime eight years earlier. We instead ask whether an average juror would find the prosecution’s case significantly less persuasive without the improper evidence. See Hicks, 635 F.3d at 1073-74 (“Although the evidence may have been sufficient to convict Hicks, we conclude that an average juror would have found the government’s case significantly less persuasive without the prior convictions.”); United States v. Jenkins, 593 F.3d 480, 486 (6th Cir.2010) (admission of prior conviction not harmless, despite “ample evidence to convict,” because of disputed issue of possession at trial); see generally Kotteakos v. United States, 328 U.S. 750, 765, 66 S.Ct. 1239, 90 L.Ed. 1557 (1946) (“But if one cannot say, with fair assurance, after pondering all that happened without stripping the erroneous action from the whole, that the judgment was not substantially swayed by the error, it is impossible to conclude that substantial rights were not affected.”). We do not agree with the government that its evidence was overwhelming. Nor do we agree that the strength of the other evidence is the sole relevant factor. Our role in deciding whether an error was harmless is not to “become in effect a second jury to determine whether the defendant is" }, { "docid": "3853605", "title": "", "text": "for the admissibility of uncharged misconduct evidence. We do not hold that the military judge erred by allowing the Government to present evidence concerning Appellant’s meeting with SrA Daugherty the day before SrA Daugherty signed the affidavit claiming memory loss. This evidence provided the members with important background information concerning SrA Daugherty’s claimed memory loss. The fact that the meeting took place was an appropriate matter for the members to consider. For example, the meeting might have induced SrA Daugherty to falsely claim loss of memory due to feelings of remorse over betraying a friend. But the military judge erred by admitting the evidence for the improper purpose of demon strating consciousness of guilt rather than for the proper purpose of evaluating the truthfulness of SrA Daugherty’s claim of memory loss. The military judge compounded this error by instructing the members that they could consider this evidence “for the limited purpose of its tendency, if any, to show the accused’s awareness of his guilt of the psilo-cyn allegations.” “When evidence is admitted under Rule 404(b), the [members] must be clearly, simply, and correctly instructed concerning the narrow and limited purpose for which the evidence may be considered.” Here, the military judge’s instructions allowed the members to consider the evidence for an impermissible purpose. Having determined that the military judge erred by allowing the Government to use this evidence to suggest Appellant’s consciousness of guilt, we must determine whether that error prejudiced Appellant. ‘Where error is founded on a violation of Rule 404(b), the test for harmlessness is “whether we can say with fair assurance, after pondering all that happened without stripping the erroneous action from the whole, that the judgment was not substantially swayed by the error.’ ” As we apply this standard, the defense must initially meet the “threshold burden of showing that an error has occurred which is ‘of such a character that its natural effect is to prejudice a litigant’s substantial rights.’ ” The burden then “shifts to the Government to persuade us that the error was harmless.” Because we conclude that the error might have swayed" }, { "docid": "23253340", "title": "", "text": "the indictment. Nor may you consider this evidence as proof that the Defendant Byers is a criminal personality or bad character.” J.A. 1589. See United States v. White, 405 F.3d 208, 213 (4th Cir.2005) (“[A]ny risk of such prejudice was mitigated by a limiting instruction from the district court clarifying the issues for which the jury could properly consider [the] evidence.”). Accordingly, we reject this argument as well. In sum, we conclude that the district court did not abuse its discretion in admitting the Coleman evidence. The district court admitted the evidence in question for permissible purposes under Rule 404(b) and not merely to show general criminal disposition. C. Finally, even if the district court abused its discretion in admitting evidence of the Coleman shooting, we conclude that the error was harmless. See Fed. R.Crim.P. 52(a) (“Any error, defect, irregularity, or variance that does not affect substantial rights must be disregarded.”); Lighty, 616 F.3d at 355-56 (erroneous admission of prior bad acts evidence under Rule 404(b) subject to harmless-error analysis). Under the harmless-error standard, we will not reverse if we can “say, with fair assurance, after pondering all that happened without stripping the erroneous action from the whole, that the judgment was not substantially swayed by the error.” Kotteakos v. United States, 328 U.S. 750, 765, 66 S.Ct. 1239, 90 L.Ed. 1557 (1946); United States v. Brooks, 111 F.3d 365, 371 (4th Cir.1997). The government introduced overwhelming evidence of Byers’s guilt in planning and executing the murder of Lackl. In addition to direct testimony from Pearson that Byers ordered and paid for the hit on Lackl and the confession of the actual killer, the government presented substantial evidence establishing telephonic communication between Cornish the triggerman, Pearson, Goodman, and Byers on the day of the murder. The evidence also established an obvious motive for Byers to kill Lackl — the elimination of the sole remaining witness against him on state murder charges. In view of the strong evidence suggesting that Byers planned the murder-for-hire against Lackl, we can say with “fair assurance” that the evidence of Coleman’s nonfatal shooting was harmless." }, { "docid": "1975330", "title": "", "text": "the Court’s instructions upon the subject, as is borne out by the responses of the jurors to the Court’s inquiries after the return of the verdicts in these cases. In the case of United States v. Haskins, (C.A.6, 1965) 345 F.2d 111, the Court of Appeals for this Circuit, said: “It is the general rule that cautionary instructions to a jury to disregard inadmissible evidence, which has been stricken from the record, or to disregard improper and prejudicial questions or arguments are deemed to cure such errors.” (Authorities omitted.) “There are of course exceptions to this rule. In Kotteakos v. United States, 328 U.S. 750, 764, 66 S.Ct. 1239, 1248, 90 L.Ed. 1557 (1946) the Supreme Court noted the general rule: “ ‘If, when all is said and done, the conviction is sure that the error did not influence the jury, or had but very slight effect, the verdict and the judgment should stand, except perhaps where the departure is from a constitutional norm or a specific command of Congress. * * * ’ “and then stated: “ ‘But if one cannot say, with fair assurance, after pondering all that happened, without stripping the erroneous action from the whole, that the judgment was not substantially swayed by the error, it is impossible to conclude that substantial rights were not affected. The inquiry cannot be merely whether there was enough to support the result, apart from the phase affected by the error. It is rather, even so, whether the error itself had substantial influence. If so, or if one is left in grave doubt, the conviction cannot stand.’ (Citation and footnote omitted.)” Applying these principles, the Court holds that the testimony here challenged was not of such an exceptionally prejudicial character that its withdrawal from the consideration of the jury, with appropriate instructions, could not remove whatever harmful effect that may have been caused by its injection into the trial. United States v. Farber, (C.A.6, 1964) 336 F.2d 586. Accordingly, defendant’s second ground for new trial is held to be without merit. Defendant’s next contention is that the Court erred in" }, { "docid": "6413602", "title": "", "text": "the entire case. We find Williams and Godsey persuasive. Finally, in considering whether or not the error was harmless, we measure the effect of the error under Kotteakos v. United States, 328 U.S. 750, 66 S.Ct. 1239, 90 L.Ed. 1557 (1946). The rule is: If, when all is said and done, the conviction is sure that the error did not influence the jury, or had but very slight effect, the verdict and the judgment should stand.... But, if one cannot say, with fair assurance, after pondering all that happened without stripping the erroneous action from the whole, that the judgment was not substantially swayed by the error, it is impossible to conclude that substantial rights were not affected. The inquiry cannot be merely whether there was enough to support the result, apart from the phase affected by the error. It is rather, even so, whether the error itself had substantial influence. If so, or if one is left in grave doubt, the conviction cannot stand. 328 U.S. at 764-65, 66 S.Ct. at 1247-48. Considering that Mrs. Morris was a critical witness, had intimate knowledge of the defendant’s affairs, was the most important corroborative witness that he had, and that the case depended wholly, or almost so, on credibility, we are of opinion that the error had substantial influence on the outcome of the case. Even if this were not so, we are yet left in grave doubt as to whether or not the error had substantial influence on the outcome of the case. Thus, the conviction cannot stand. IV. Morris has made other assignments of error which we will mention briefly. Morris argues that the conduct of the prosecutor constituted plain error as the prosecutor suggested to an expert witness that he had tailored his testimony; had asked character witnesses whether Morris represented narcotics traffickers and whether Morris drove a great big Cadillac; had asked a witness whether Morris represented dirty cops; had accused an attorney who was testifying of violating the attorney-client privilege; and had solicited from Balbuena adjectives which indicated Morris was a homosexual, and then argued the" }, { "docid": "20591259", "title": "", "text": "alternative contention that any error in admitting them was ultimately harmless. “A nonconstitutional error ceases to be harmless if it had a substantial and injurious effect or influence in determining the jury’s verdict.” United States v. Briley, 770 F.3d 267, 276 (4th Cir.2014) (internal quotation marks omitted). ‘We do not reverse evidentiary rulings for inconsequential technicalities. Rather, reversal is reserved for more serious errors that affect substantial rights or that directly affect the outcome of a case.” Id. (internal quotation marks omitted). In this case, the notes, if believed by the jury, could have informed the jury’s consideration of two important issues: whether Appellant authored the e-mails and whether Appellant intended to extort money from MW. But the Government properly introduced several audio recordings of Appellant making nearly identical comments to Gnos on several occasions. And those recordings demonstrated, in far more vibrant detail than Gnos’s notes, that Appellant was preoccupied with finding someone in Virginia willing to intimidate MW. Appellant maintains that the strength of the Government’s additional evidence is not dispositive. Fair enough. But the closeness of the case, which will frequently turn on the weight of the evidence, is clearly relevant to the harmless error analysis. See Kotteakos v. United States, 328 U.S. 750, 763, 66 S.Ct. 1239, 90 L.Ed. 1557 (1946) (“Errors of this sort in criminal causes conceivably may be altogether harmless in the face of other clear evidence, although the same error might turn scales otherwise level, as constantly appears in the application of the policy ... to questions of the admission of cumulative evidence.”). And we have in the past held evidentiary errors harmless where the Government’s case is strongly corroborated by other admissible evidence. See Bri-ley, 770 F.3d at 277-78 (observing that a “plethora of testimony established” the elements of the charged offense and concluding the admission of improper character evidence was harmless). Ultimately, the question is whether we can say “with fair assurance, after pondering all that happened without stripping the erroneous action from the whole, that the [jurors’] judgment was not substantially swayed by the error.” Kotteakos, 328 U.S. at" }, { "docid": "5465632", "title": "", "text": "accomplices’ testimony because it was as consistent with the defendant’s exculpatory testimony as it was with the accomplices’ inculpatory testimony. Thus, taken together, the two items of corroborative evidence are not enough to overcome the inherent unreliability of the accomplices’ testimony, and the failure of the trial court to give an accomplice instruction is error. The second step in our review is to determine whether the error of omitting the accomplice instruction is harmless. When considering this question in United States v. Levi, 177 F.2d at 832, this court adopted the definition of harmless error put forth by the United States Supreme Court in Kotteakos v. United States, 328 U.S. 750, 765, 66 S.Ct. 1239, 1248, 90 L.Ed. 1557 (1946): [I]f one cannot say, with fair assurance, after pondering all that happened without stripping the erroneous action from the whole, that the judgment was not substantially swayed by the error, it is impossible to conclude that substantial rights were not affected. The inquiry cannot be merely whether there was enough to support the result, apart from the phase affected by the error. It is rather, even so, whether the error itself had substantial influence. If so, or if one is left in grave doubt, the conviction cannot stand. When “pondering all that happened” in order to determine if a judgment was “swayed” or influenced by the error of omitting an accomplice instruction, we must consider whether the jury was made aware of the interests of the accomplices during the various phases of the trial, such as direct examination, cross examination, closing argument, or through another jury instruction regarding witness credibility. See United States v. Velez, 652 F.2d 258, 261 n. 5 (2d Cir.1981) (where defense counsel argued lack of accomplice’s credibility in his summation, omission of accomplice instruction was not prejudicial); United States v. Abrams, 427 F.2d 86, 90-91 (2d Cir.) (where trial court gave the usual instruction concerning the credibility of witnesses, omission of special instruction on accomplice testimony did not justify reversal), cert. denied, 400 U.S. 832, 91 S.Ct. 64, 27 L.Ed.2d 63 (1970); United States v. Cianchetti," }, { "docid": "1095092", "title": "", "text": "has met his threshold burden of showing that an error has occurred which is “of such a character that its natural effect is to prejudice a litigant’s substantial rights,” the burden shifts to the Government to persuade us that the error was harmless. Kotteakos v. United States, 328 U.S. 750, 760, 66 S.Ct. 1239, 1245, 90 L.Ed. 1557 (1946). See United States v. Olano, — U.S. at —, 113 S.Ct. at 1778 (contrasting Government’s burden of persuasion for harmless error with appellant’s burden of persuasion for plain error). In Kotteakos the Supreme Court explained the harmless-error rule as follows: But if one cannot say, with fair assurance, after pondering all that happened without stripping the erroneous action from the whole, that the judgment was not substantially swayed by the error, it is impossible to conclude that substantial rights were not affected. The inquiry cannot be merely whether there was enough to support the result, apart from the phase affected by the error. It is rather, even so, whether the error itself had substantial influence. If so, or if one is left in grave doubt, the conviction cannot stand. 328 U.S. at 765, 66 S.Ct. at 1248. We note that the military judge instructed the court members three times regarding the limited purpose for which M’s pretrial statement was being admitted, i.e., to determine the credibility of the victim-witness. “In the absence of evidence” to the contrary, court members are “presumed” to have followed the military judge’s instructions. United States v. Ricketts, 1 MJ 78, 82 (CMA 1975). The problem in this case is that, even if the court members followed the military judge’s instructions and concluded that the victim was lying in court, they necessarily would also infer that the converse of her blanket recantation was true, i.e., that she had been abused as the prosecution contended and as N and J had described in their pretrial statements, which were already before the court. The court members obviously did not believe that M’s in-court recantation was truthful, because they convicted appellant. This is not a case where the evidence was" } ]

[ { "docid": "13992142", "title": "", "text": "Abuse Servs., 165 F.3d 1321, 1326 (10th Cir.), cert. denied, - U.S. -, 120 S.Ct. 53, 145 L.Ed.2d 46 (1999). In County of Sacramento v. Lewis, 523 U.S. 833, 118 S.Ct. 1708, 140 L.Ed.2d 1043 (1998), the Supreme Court clarified the substantive due process standard of culpability for an officer involved in a police pursuit. The Court held that “in a high-speed automobile chase aimed at apprehending a suspected offender ... only a purpose to cause harm unrelated to the legitimate object of arrest” is sufficiently “shocking to the conscience” to establish a due process violation. Id. at 836, 118 S.Ct. 1708. In rejecting a “deliberate indifference” standard of fault, the Court stressed that such a standard is workable “only when actual deliberation is practical.” Id. at 851, 118 S.Ct. 1708. Police officers giving chase make decisions “in haste, under pressure, and frequently without the luxury of a second chance.” Id. at 853, 118 S.Ct. 1708, 1720 (internal quotation marks and citation omitted). Given these pressures, the Court concluded that “high-speed chases with no intent to harm suspects physically or to worsen their legal plight do not give rise to liability under the Fourteenth Amendment.” Id. at 854, 118 S.Ct. 1708. Applying Lewis, we have previously directed dismissal of claims brought on behalf of an innocent bystander killed during a police struggle with a suspect. Radecki v. Barela, 146 F.3d 1227, 1232 (10th Cir.1998). The Lewis principles therefore apply whether the claimant is a police sus pect or an innocent victim. The touchstone is whether the officers “acted with an intent to harm the participants or to worsen their legal plight.” Id. Reviewing the record before us, we find no genuine issue of material fact precluding summary judgment. Plaintiffs claim that the officers were grossly negligent, reckless and even deliberately indifferent to their plight. Nowhere do plaintiffs present specific facts suggesting that the officers harbored an intent to harm them. Thus, there is no constitutional liability under Lewis. We therefore affirm the district court’s dismissal of plaintiffs’ claims under 42 U.S.C. § 1983 and related provisions. AFFIRMED. . In their" } ]

[ { "docid": "12297587", "title": "", "text": "Lewis, 523 U.S. at 852-53, 118 S.Ct. 1708 (quoting Whitley, 475 U.S. at 320-21, 106 S.Ct. 1078) (emphasis added). The Porters argue that Lewis applies only to “unintentional” or “inadvertent” killings — such as the motorcycle accident involved there or other innocent bystander types of cases. See, e.g., Moreland, 159 F.3d at 372 (characterizing Lewis as involving the “unintentional killing of an individual by law enforcement officers”); but see Whitley, 475 U.S. at 316, 106 S.Ct. 1078 (applying purpose to harm standard to prison officers who intentionally fired shots at inmates). Although intentionality is relevant, intent was not central to the Court’s analysis in either Whitley or Lewis as to which standard to apply. Both decisions instead turned on whether the officers had the opportunity for actual deliberation. Thus, in Moreland, a case involving an apparently inadvertent shooting of a bystander, we emphasized that “the critical consideration's] whether the circumstances are such that ‘actual deliberation is practical.’ ” 159 F.3d at 372 (quoting Lewis, 523 U.S. at 851, 118 S.Ct. 1708). Our precedent has evolved with repeated emphasis on this “critical consideration,” and in deciding the level of culpability to apply under the shocks the conscience test has declined to parse an officer’s intentions and initial decisions to use force. See, e.g., id. at 373 (addressing officer conduct only after determining the standard of culpability by reference to the situation the officers faced); see also Davis v. Township of Hillside, 190 F.3d 167, 170 (3d Cir.1999) (“Nothing in Lewis suggests that courts are free to second-guess a police officer’s decision to initiate pursuit of a suspect so long as the officers were acting in the service of a legitimate governmental objec- tive_”) (internal quotation marks omitted). In Moreland, police officers responded to a gun fight in a crowded parking lot, a patently fast paced and urgent threat to public safety. See Moreland, 159 F.3d at 368. We applied the purpose to harm standard because the officers had to “address a life-threatening situation” in which they faced competing obligations, namely whether to allow the shooters to continue firing or to fire" }, { "docid": "23294813", "title": "", "text": "the general public, yet it was no bar to our holding that the officers and their families, who as the likely targets of such attacks were more likely to be harmed, faced a special danger. Therefore, McQueen has shown sufficient evidence to raise a genuine issue of material fact as to the existence of a special danger. c. State Culpability In Kallstrom, we characterized the third element of the state-created-danger theory as a requirement that “[t]he state must have known or clearly should have known that its actions specifically endangered an individual.” 136 F.3d at 1066. We have since clarified that the plaintiff “must demonstrate that the state acted with the requisite culpability to establish a substantive due process violation under the Fourteenth Amendment.” Ewolski v. City of Brunswick, 287 F.3d 492, 510 (6th Cir.2002). The government’s conduct must be “so ‘egregious’ that it can be said to be ‘arbitrary in the constitutional sense,’ ” but the standard is “ ‘no calibrated yard stick.’ ” Id. (quoting County of Sacramento v. Lewis, 523 U.S. 833, 846, 847, 118 S.Ct. 1708, 140 L.Ed.2d 1043 (1998)). “The guiding principle seems to be that a deliberate-indifference standard is appropriate in ‘settings [that] provide the opportunity for reflection and unhurried judgments,’ but that a higher bar may be necessary when opportunities for reasoned deliberation are not present.” Bukowski, 326 F.3d at 710 (quoting Ewolski, 287 F.3d at 511 n. 5). Here, deliberate indifference is the appropriate standard because Judd had the opportunity to reflect and to deliberate before deciding to leave Smith and several children unsupervised in the classroom. Although public schools are busy places, Judd did not need to make a split-second decision that merits applying a higher standard. See Ewolski, 287 F.3d at 511 (discussing Lewis, in which the Supreme Court required a showing of malice and intent to harm for police involved in a high-speed vehicle chase, and Claybrook v. Birchwell, 199 F.3d 350 (6th Cir.2000), in which we required a showing that the police acted “maliciously and sadistically for the very purpose of causing harm” in the context of a" }, { "docid": "11390086", "title": "", "text": "170-71 (3d Cir.1999). In an unpublished Sixth Circuit case, the court adopted the following discussion by the federal district court: High-speed pursuits, by their very nature, do not permit the deliberations required to apply the “deliberate indifference” standard. When executive action is the result of unhurried judgment, the chance for repeated reflection, and uncomplicated by the pulls of competing obligations, then deliberate indifference is truly shocking. Categorically, however, the nature of high-speed pursuits— their ever evolving nature, the number of contingencies, the scant information available, the high pressure environment, the absence of hindsight or second chances, and the abbreviated time period in which to make decisions — requires that the Court apply the Lewis standard to all high speed pursuit scenarios. Epps v. Lauderdale County, Tenn., 45 Fed.Appx. 332, 333-34 (6th Cir.2002) (unpublished). Citing Epps, as well as an Eighth Circuit case discussed below, the Sixth Circuit has stated that “ ‘the intent-to-harm standard of Lewis applies to all § 1983 substantive due process claims based upon the conduct of public officials engaged in a high-speed automobile chase aimed at apprehending a suspected offender,’ regardless of whether the chase conditions arguably afforded pursuing officers time to deliberate.” Meals v. City of Memphis, 493 F.3d 720, 730 n. 8 (6th Cir.2007) (quoting Helseth v. Burch, 258 F.3d 867, 871 (8th Cir.2001) (en banc)). The Seventh Circuit has been reluctant to apply any standard other than the intent-to-harm standard to police officers causing injury while performing their job. See, e.g., Carter v. Simpson, 328 F.3d 948 (7th Cir.2003) (upholding the grant of summary judgment to defendant officer where he, in responding to a dispatch with lights and siren on, went through an intersection on a red light and hit car driven by plaintiff); Bublitz, 327 F.3d 485 (finding neither the shock-the-conscience nor the deliberate indifference standards met where police used tire-deflation device to stop a fleeing robbery suspect, which caused an accident which killed two bystanders and injured one). “The shocks-the-conscience standard ... does ... require substantial culpability. It is generally only deliberate action intended to harm another that is the type" }, { "docid": "12297588", "title": "", "text": "with repeated emphasis on this “critical consideration,” and in deciding the level of culpability to apply under the shocks the conscience test has declined to parse an officer’s intentions and initial decisions to use force. See, e.g., id. at 373 (addressing officer conduct only after determining the standard of culpability by reference to the situation the officers faced); see also Davis v. Township of Hillside, 190 F.3d 167, 170 (3d Cir.1999) (“Nothing in Lewis suggests that courts are free to second-guess a police officer’s decision to initiate pursuit of a suspect so long as the officers were acting in the service of a legitimate governmental objec- tive_”) (internal quotation marks omitted). In Moreland, police officers responded to a gun fight in a crowded parking lot, a patently fast paced and urgent threat to public safety. See Moreland, 159 F.3d at 368. We applied the purpose to harm standard because the officers had to “address a life-threatening situation” in which they faced competing obligations, namely whether to allow the shooters to continue firing or to fire upon the shooters to end the threat. Id. at 372. Similarly, in Onossian v. Block, 175 F.3d 1169, 1171 (9th Cir.1999), we held that the purpose to harm standard also applies when bystanders, not the suspects themselves, are harmed during a high speed chase. Analogizing directly to Lewis and Moreland, we again emphasized the officer’s competing obligations in the “split-second” decision to give chase. See id. at 1171. Most recently, and after the district court ruled here, we concluded that high speed chases are inherently emergency situations and declined to break them into “emergency” and “non-emergency” situations in which the latter would be evaluated under the deliberate indifference standard. See Bingue v. Prunchak, 512 F.3d 1169, 1175-77 (9th Cir.2008). Otherwise we would wind up parsing officers’ “repeated split-second decisions about how best to apprehend the fleeing suspect in a manner that will minimize risk to their own safety and the safety of the general public.” Id. at 1176. Lewis and our cases therefore require that when an officer encounters fast paced circumstances presenting competing public" }, { "docid": "12297589", "title": "", "text": "upon the shooters to end the threat. Id. at 372. Similarly, in Onossian v. Block, 175 F.3d 1169, 1171 (9th Cir.1999), we held that the purpose to harm standard also applies when bystanders, not the suspects themselves, are harmed during a high speed chase. Analogizing directly to Lewis and Moreland, we again emphasized the officer’s competing obligations in the “split-second” decision to give chase. See id. at 1171. Most recently, and after the district court ruled here, we concluded that high speed chases are inherently emergency situations and declined to break them into “emergency” and “non-emergency” situations in which the latter would be evaluated under the deliberate indifference standard. See Bingue v. Prunchak, 512 F.3d 1169, 1175-77 (9th Cir.2008). Otherwise we would wind up parsing officers’ “repeated split-second decisions about how best to apprehend the fleeing suspect in a manner that will minimize risk to their own safety and the safety of the general public.” Id. at 1176. Lewis and our cases therefore require that when an officer encounters fast paced circumstances presenting competing public safety obligations, the purpose to harm standard must apply. At the other end of the spectrum are situations, like the Eighth Amendment prison cases discussed in Lewis, where “extended opportunities to do better are teamed with protracted failure even to care.” Lewis, 523 U.S. at 853, 118 S.Ct. 1708. Then, “indifference is truly shocking.” Id. Similarly, we have held that where officers have ample time to correct their obviously mistaken detention of the wrong individual, but nonetheless fail to do so, the suspect’s family members need only plead deliberate indifference to state a claim under the due process right to familial association. See Lee v. City of Los Angeles, 250 F.3d 668, 684 (9th Cir.2001). Placed along this spectrum, we are compelled to conclude that the purpose to harm standard must apply here. Osborn faced an evolving set of circumstances that took place over a short time period necessitating “fast action” and presenting “obligations that tend to tug against each other.” Lewis, 523 U.S. at 853, 118 S.Ct. 1708. The approximately five-minute altercation between Casey" }, { "docid": "9463675", "title": "", "text": "invariably require the same type of high-speed driving as the chase of a fleeing suspect. Domestic disturbances are “notoriously volatile and unpredictable,” Elwood v. Rice County, 423 N.W.2d 671, 678 (Minn.1988), so the number of police officers needed to defuse the situation is rarely known in advance. Like the officer who made a quick decision to give chase in Lewis, police officers responding to this type of emergency call do not have “the luxury ... of having time to make unhurried judgments, upon the chance for repeated reflection, largely uncomplicated by the pulls of competing obligations.” 523 U.S. at 853, 118 S.Ct. 1708. Thus, the panel majority’s decision flies in the face of the Lewis analysis and threatens to deter police officers from deciding to respond to emergency calls, thereby increasing the risk of harm to citizens caught up in these crises. See Helseth, 258 F.3d at 871. No doubt for this reason, to our knowledge every circuit to consider the issue has applied the Lewis intent-to-harm standard to “those myriad situations involving law enforcement and government workers deployed in emergency situations.” Radecki v. Barela, 146 F.3d 1227, 1230 (10th Cir.1998) (unanticipated struggle for police officer’s firearm); accord Carter v. Simpson, 328 F.3d 948, 952 (7th Cir.2003) (back-up squad car responding to emergency call of a reported death); Clay brook v. Birchwell, 199 F.3d 350, 359-61 (6th Cir.2000) (reacting to dangerous actions of an armed man); Moreland v. Las Vegas Metro. Police Dept., 159 F.3d 365, 372 (9th Cir.1998) (quelling gunfight in progress). Similarly, every circuit to consider a high-speed driving situation prior to Lewis concluded that police officers are not subject to substantive due process liability for alleged reckless or grossly negligent driving in response to emergencies other than suspect pursuits. See Apodaca v. Rio Arriba County Sheriff’s Dep’t, 905 F.2d 1445, 1446-47 (10th Cir.1990) (responding to silent burglar alarm); Cannon v. Taylor, 782 F.2d 947, 950 (11th Cir.1986) (disturbance call); Walton v. Salter, 547 F.2d 824, 825 (5th Cir.1976) (armed robbery call). For these reasons, we hold that the intent-to-harm standard of Lewis applies to an officer’s decision" }, { "docid": "17480138", "title": "", "text": "See Rakas v. Illinois, 439 U.S. 128, 133-34, 99 S.Ct. 421, 58 L.Ed.2d 387 (1978). Substantive due process analysis is therefore appropriate in this case because plaintiff's claim is .not covered by the Fourth Amendment. Lewis, 118 S.Ct. at 1714. . Another distinction, not raised by plaintiff and immaterial to the outcome of this case, is that in Lewis the injury was to a suspect while in this case it was to a bystander. In our pre-Lewis decision in Fagan v. City of Vineland, 22 F.3d 1296 (3d Cir.1994), we applied the shocks-the-conscience standard to the § 1983 claims of bystanders, without discussion. We agree with the Ninth Circuit’s reasoning in Onossian v. Block, 175 F.3d 1169, 1171 (1999), that under Lewis \"if a police officer is justified in giving chase, that justification insulates the officer from constitutional attack, irrespective of who might be harmed or killed as a consequence of the chase.” See also Jones v. Sherrill, 827 F.2d 1102, 1106-7 (6th Cir.1987) (similar standard applied to injured bystander). McKEE, Circuit Judge, concurring: I agree that the District Court’s grant of summary judgment to the defendants should be affirmed. I write separately, however, to amplify my understanding of what we hold today, because I am concerned that our decision may be interpreted too broadly, and thereby result in an unjustified extension of County of Sacramento v. Lewis, 523 U.S. 833, 118 S.Ct. 1708, 140 L.Ed.2d 1043 (1998). The mere fact that force may have been used while effectuating an arrest does not automatically establish that the force was “in relation” to a legitimate object of the arrest under a § 1983 analysis. Davis must lose here, not because the challenged force occurred “in relation to” a high-speed chase, but because his allegations of a substantive due process violation are rooted in negligence and allege, at most, a reckless disregard of safety. That is clearly insufficient under Lewis. However, I believe the evidence here, taken in the light most favorable to the plaintiff, could support allegations of an intentional ramming of the Acura Cook was driving. Had Davis alleged such" }, { "docid": "23294814", "title": "", "text": "846, 847, 118 S.Ct. 1708, 140 L.Ed.2d 1043 (1998)). “The guiding principle seems to be that a deliberate-indifference standard is appropriate in ‘settings [that] provide the opportunity for reflection and unhurried judgments,’ but that a higher bar may be necessary when opportunities for reasoned deliberation are not present.” Bukowski, 326 F.3d at 710 (quoting Ewolski, 287 F.3d at 511 n. 5). Here, deliberate indifference is the appropriate standard because Judd had the opportunity to reflect and to deliberate before deciding to leave Smith and several children unsupervised in the classroom. Although public schools are busy places, Judd did not need to make a split-second decision that merits applying a higher standard. See Ewolski, 287 F.3d at 511 (discussing Lewis, in which the Supreme Court required a showing of malice and intent to harm for police involved in a high-speed vehicle chase, and Claybrook v. Birchwell, 199 F.3d 350 (6th Cir.2000), in which we required a showing that the police acted “maliciously and sadistically for the very purpose of causing harm” in the context of a shootout, id. at 359). We have equated deliberate indifference with subjective recklessness, Ewolski, 287 F.3d at 513, which means that “the official must both be aware of facts from which the inference could be drawn that a substantial risk of serious harm exists, and he must also draw the inference,” Sperle v. Mich. Dep’t of Corr., 297 F.3d 483, 493 (6th Cir.2002) (quoting Farmer v. Brennan, 511 U.S. 825, 837, 114 S.Ct. 1970, 128 L.Ed.2d 811 (1994)). Subjective recklessness can “be proven circumstantially by evidence showing that the risk was so obvious that the official had to have known about it.” Bukowski, 326 F.3d at 710. McQueen argues that, based on Smith’s history of behavioral problems, Judd knew that Smith might violently assault another student and acted recklessly in conscious disregard of that risk by leaving leaving Smith and several other children unsupervised in the classroom. The district court rejected this contention. McQueen has failed to produce any evidence showing that Judd acted with deliberate indifference. It is difficult to put it better than Judge" }, { "docid": "21078140", "title": "", "text": "to fleeing suspects, so that another driver or an innocent bystander should be able to recover from the police upon a lesser showing of recklessness or misconduct than that required by Lewis’ “shock-the-conscience” test. We find that such a narrow interpretation does not fully capture the meaning of Lewis. At several points in the Court’s opinion, the duty of the pursuing police officer is defined generally, without specific reference to the suspect being pursued. Perhaps most telling is the Court’s description of the dilemma of a police officer who must make a “split-second” decision whether to pursue a suspect: “A police officer deciding whether to give chase must balance on one hand the need to stop a suspect and show that flight from the law is no way to freedom, and, on the other, the high-speed threat to everyone within stopping range, be they suspects, their passengers, other drivers, or bystanders.” Id., 523 U.S. at-, 118 S.Ct. at 1720 (emphasis added). As we read the Court’s opinion, if a police officer is justified in giving chase, that justification insulates the officer from constitutional attack, irrespective of who might be harmed or killed as a consequence of the chase. We have already come close to answering the question of a police officer’s obligation to non-suspects in a high speed chase. In Moreland v. Las Vegas Metropolitan Police Dept., 159 F.3d 365 (9th Cir.1998), we held that the Lewis test applied where a bystander was killed by police in a gunfight outside a bar: The question we face today is whether this newly minted explanation of the ‘shocks the conscience’ standard also controls in cases where it is alleged that an officer inadvertently harmed a bystander while responding to a situation in which the officer was required to act quickly to prevent an individual from threatening the lives of others. We conclude that it does. 159 F.3d at 372. It is a small step from applying Lewis to a bystander harmed in a gunfight to applying it to another driver harmed in the very situation in which the Lewis test originated. We" }, { "docid": "17459465", "title": "", "text": "a passerby, or a police officer, any of whom may be intent on stopping the crime in progress. As we observed in Solomon, an encounter between the thief and such a person carries a serious risk of violent confrontation. Once the thief drives away with the vehicle, he is unlawfully in possession of a potentially deadly or dangerous weapon. While he is absconding in the vehicle, with which he will probably be unfamiliar, the thief may be pursued or perceive a threat of pursuit. Under the stress and urgency which will naturally attend his situation, the thief will likely drive recklessly and turn any pursuit into a high-speed chase with the potential for serious harm to police or innocent bystanders. Sun Bear, 307 F.3d at 752-53 (citations omitted). With this description, the Sun Bear court at most described the potential risks attendant to extreme instances of car theft, but by no means did it describe a generic case of simple car theft. Most simple car thefts do not result in encounters between the felon and the owner of the vehicle, a police officer, or a passerby. Nor do most simple car thefts result in a pursuit, reckless driving, and high-speed chases. While it is true that the potential harm to persons from these scenarios may be described as the potential risks of a car theft, I do not think they may properly be described as serious potential risks. In my view, there must be some aggravating circumstance beyond simple car theft in order to categorically classify ear theft as a crime that, by its nature, is a crime of violence. For these reasons, I would not place simple car theft on the same level as burglary of a commercial dwelling, theft from a person, or escape. See United States v. Griffith 301 F.3d 880, 885 (8th Cir.2002) (finding that theft from a person is a “violent felony”); United States v. Nation, 243 F.3d 467, 472 (8th Cir.2001) (ruling that all escapes constitute crimes of violence); United States v. Hascall, 76 F.3d 902, 904 (8th Cir.1996) (finding that second degree burglary" }, { "docid": "22921205", "title": "", "text": "in which actual malice and an intent to harm was required. In Lewis, for example, the entire course of events lasted a mere seventy-five seconds. 523 U.S. at 837, 118 S.Ct. 1708. When the officers observed the victim’s motorcycle approaching at high speed, they were forced to make an instantaneous decision to give chase. Id. at 853, 118 S.Ct. 1708. Likewise, in Claybrook v. Birchwell, 199 F.3d 350 (6th Cir.2000), we held that a bystander injured during a police shootout must show that the police acted “ ‘maliciously and sadistically for the very purpose of causing harm’” in order to maintain a due process claim. Id. at 359 (quoting Lewis, 523 U.S. at 853, 118 S.Ct. 1708). We explained that this standard was appropriate because the police “had no opportunity to ponder or debate their reaction to the dangerous actions of the armed man” when he approached them menacingly with a weapon and then opened fire. Id. at 360; see also Moreland, 159 F.3d at 373 (holding that intent to harm standard applied when police encountered a gunfight in progress in a parking lot where 50 to 100 innocent people were caught in the crossfire). Unlike the defendants in Claybrook, however, Chief Beyer and his officers were not exchanging gunfire with Lekan at the time that the fateful decisions of that day were made. Other courts have found that an intent to harm is required where the police fire upon an escaping suspect and inadvertently injure hostages in the process. Childress v. City of Arapaho, 210 F.3d 1154, 1157 (10th Cir.2000) (holding intent to harm required where police fired upon hijacked van containing hostages in attempt to stop van as it drove through series of police roadblocks); Lee v. Williams, 138 F.Supp.2d 748, 761 (E.D.Va.2001) (intent to harm applied where armed suspects took a hostage and were attempting to escape in the hostage’s van). In the instant case, however, Mr. Lekan was contained in his house and surrounded by a vastly superior police presence. The police were never forced to make a hasty decision to use force in order to" }, { "docid": "11390078", "title": "", "text": "same year as Lewis (1998), where an innocent third party was murdered by a suspect whom the police were attempting to arrest. We observed that the Supreme Court had: specifically recognize[d] that in the middle range of the culpability spectrum, where the conduct is more than negligent but less than intentional, there may be some conduct that is egregious enough to state a substantive due process claim. Within this middle range, Lewis directs us to analyze the level of culpability by examining the circumstances that surround the conduct at issue and the governmental interest at stake. Radecki, 146 F.3d at 1231. Noting that the Court directed employment of the “ ‘deliberate indifference’ standard only when actual deliberation is practical,” we “distinguished] between emergency action and actions taken after opportunity for reflection.” Id. at 1232. “Where the state actor has the luxury to truly deliberate about the decision he or she is making, something less than unjustifiable intent to harm, such as calculated indifference, may suffice to shock the conscience.” Id. We then applied the Lewis intent-to-harm standard and found no constitutional liability: “Deputy Barela was confronted with a suddenly explosive law enforcement situation when Martinez tried to seize Barela’s gun.... Deputy Barela had no time for deliberation ... [and] was confronted with the kind of instantaneous judgment call that is so often required ... [in] emergency situations.” Id. In an unpublished decision issued in 1999, we simply applied the Lems intent-to-harm standard, without discussion, to a high-speed police chase in which “[t]he vehicle pursued by the police crashed into the vehicle driven by [the plaintiff].” Carleton v. City of Tulsa, 166 F.3d 1220, 1999 WL 11282, at *1 (10th Cir. Jan.13, 1999) (unpublished). In Childress v. City of Arapaho, 210 F.3d 1154 (10th Cir.2000), we applied the Lewis intent-to-harm test to a substantive due process claim brought against police officers by hostages injured when police pursued escaped state prison inmates, and we explicitly held that the “Lewis principles ... apply whether the claimant is a police suspect or an innocent victim. The touchstone is whether the officers ‘acted with an" }, { "docid": "21078141", "title": "", "text": "chase, that justification insulates the officer from constitutional attack, irrespective of who might be harmed or killed as a consequence of the chase. We have already come close to answering the question of a police officer’s obligation to non-suspects in a high speed chase. In Moreland v. Las Vegas Metropolitan Police Dept., 159 F.3d 365 (9th Cir.1998), we held that the Lewis test applied where a bystander was killed by police in a gunfight outside a bar: The question we face today is whether this newly minted explanation of the ‘shocks the conscience’ standard also controls in cases where it is alleged that an officer inadvertently harmed a bystander while responding to a situation in which the officer was required to act quickly to prevent an individual from threatening the lives of others. We conclude that it does. 159 F.3d at 372. It is a small step from applying Lewis to a bystander harmed in a gunfight to applying it to another driver harmed in the very situation in which the Lewis test originated. We therefore hold that for the Onossians to show that their due process rights have been violated, they must show that the behavior of the police in this case “shocks the conscience.” Second, does the conduct in this case “shock the conscience” within the meaning of Lewis? A comparison of the chases in this case and in Lewis compels the conclusion that the Onossians’ due process rights were not violated. Plaintiffs in Lewis were the parents of a boy who was killed in a high-speed police chase. Their minor son had been a passenger on a motorcycle driven by another minor. A Sacramento County Sheriffs deputy pursued the boys at high speed after they failed to stop when asked to do so by another officer. The chase, which lasted a little over a minute, reached speeds of up to 100 miles an hour on residential streets. The motorcycle ran several stop lights and made various dangerous turns. The deputy followed closely, sometimes at a distance of as little as 100-150 feet. The chase ended when the" }, { "docid": "22921204", "title": "", "text": "reveal that this was a situation where actual deliberation was practical. The police waited five hours to initiate the first “tactical solution,” which strongly suggests that split-second decision making was not required. Many more hours passed before the decision was made to deploy the armored vehicle. Indeed, in his deposition, Chief Beyer indicated that the decision to initiate a tactical assault was made after consulting two mental health professionals and requesting input from the officers on the scene. Beyer also indicated that he discussed the pros and cons of using tear gas. Clearly, this testimony demonstrates not only that deliberation was practical, but that some effort at deliberation was in fact made. This conclusion is supported by Callis’s report, which noted that there was no need for immediate action and concluded that “[o]ne of the strongest points on the side of the authorities was ‘time.’” J.A. at 642 (Callis Rep. at 6). The time for deliberation available to Chief Beyer in deciding how to respond to Mr. Lekan’s actions distinguishes this case from those cases in which actual malice and an intent to harm was required. In Lewis, for example, the entire course of events lasted a mere seventy-five seconds. 523 U.S. at 837, 118 S.Ct. 1708. When the officers observed the victim’s motorcycle approaching at high speed, they were forced to make an instantaneous decision to give chase. Id. at 853, 118 S.Ct. 1708. Likewise, in Claybrook v. Birchwell, 199 F.3d 350 (6th Cir.2000), we held that a bystander injured during a police shootout must show that the police acted “ ‘maliciously and sadistically for the very purpose of causing harm’” in order to maintain a due process claim. Id. at 359 (quoting Lewis, 523 U.S. at 853, 118 S.Ct. 1708). We explained that this standard was appropriate because the police “had no opportunity to ponder or debate their reaction to the dangerous actions of the armed man” when he approached them menacingly with a weapon and then opened fire. Id. at 360; see also Moreland, 159 F.3d at 373 (holding that intent to harm standard applied when police" }, { "docid": "9035980", "title": "", "text": "conscience when an officer has time only for hurried deliberation. (App. at 11-12.) We have described the \"gross negligence or arbitrariness\" standard, however, as one \"that provides little guidance.\" Sanford v. Stiles , 456 F.3d 298, 310 (3d Cir. 2006). We have been clear in recent years that the level of culpability required to shock the conscience when an officer has time for hurried deliberation is \"a conscious disregard of 'a great risk of serious harm[.]' \" Haberle , 885 F.3d at 177 (quoting Sanford , 456 F.3d at 310 ); accord Kedra , 876 F.3d at 437. Although the Ninth Circuit appears to have limited its application of Lewis 's intent-to-harm standard to \"situations involving high-speed chases aimed at apprehending a fleeing suspect,\" any such limitation does not undermine that court's explicit refusal to distinguish between \" 'emergency' and 'non-emergency' situations.\" Bingue , 512 F.3d at 1177. It also leaves open the question of whether a suspect leaving the scene of a crime, who does not know that the police are pursuing him, should be considered a \"fleeing suspect.\" It is far from certain, therefore, what standard of culpability the Ninth Circuit would apply to the facts at issue here. Our own precedents do not provide any added clarity regarding the proper standard by which to judge whether an officer's conduct shocks the conscience in police pursuits that involve neither an emergency nor a fleeing suspect. Although we have indicated that the \"shocks the conscience\" standard applies to police pursuit cases, see Brown , 318 F.3d at 480 (\"[T]he 'shocks the conscience' standard should apply in all substantive due process cases if the state actor had to act with urgency[, including] police pursuit cases[.]\"), our cases do not give fair warning that, absent an intent to harm, police could face constitutional liability based on a high-speed pursuit, see, e.g. , Davis v. Twp. of Hillside , 190 F.3d 167, 171 (3d Cir. 1999) (applying Lewis intent to harm standard to injury of bystander who was injured as a result of a high-speed pursuit of a fleeing suspect). The dissent" }, { "docid": "11390085", "title": "", "text": "that the ‘defendant!] consciously disregarded, not just a substantial risk, but a great risk that serious harm would result.” Id. (quoting Ziccardi, 288 F.3d at 66). Thus, the Third Circuit derived the rule that: [t]he level of culpability required to shock the conscience increases as the time state actors have to deliberate increases. In a ‘hyperpressurized environment,’ an intent to cause harm is usually required. On the other hand, in cases where deliberation is possible and officials have the time to make ‘unhurried judgments,’ deliberate indifference is. sufficient. Id. at 309; see also Rivas v. City of Passaic, 365 F.3d 181, 195-96 (3d Cir.2004) (“We announced in Brown that ‘ “the shocks the conscience” ’ standard should apply in all substantive due process cases if the state actor had to act with some urgency. This has been the law for police pursuit cases ....”) (quoting Brown v. Commonwealth of Pa. Dept. of Health Emerg. Med. Servs. Training Inst., 318 F.3d 473, 480 (3d Cir. 2003)); see also Davis v. Township of Hillside, 190 F.3d 167, 170-71 (3d Cir.1999). In an unpublished Sixth Circuit case, the court adopted the following discussion by the federal district court: High-speed pursuits, by their very nature, do not permit the deliberations required to apply the “deliberate indifference” standard. When executive action is the result of unhurried judgment, the chance for repeated reflection, and uncomplicated by the pulls of competing obligations, then deliberate indifference is truly shocking. Categorically, however, the nature of high-speed pursuits— their ever evolving nature, the number of contingencies, the scant information available, the high pressure environment, the absence of hindsight or second chances, and the abbreviated time period in which to make decisions — requires that the Court apply the Lewis standard to all high speed pursuit scenarios. Epps v. Lauderdale County, Tenn., 45 Fed.Appx. 332, 333-34 (6th Cir.2002) (unpublished). Citing Epps, as well as an Eighth Circuit case discussed below, the Sixth Circuit has stated that “ ‘the intent-to-harm standard of Lewis applies to all § 1983 substantive due process claims based upon the conduct of public officials engaged in a" }, { "docid": "17480137", "title": "", "text": "(1983) (quoting Griffin v. Breckenridge, 403 U.S. 88, 102, 91 S.Ct. 1790, 29 L.Ed.2d 338 (1971)), the district court correctly dismissed this claim. III. STATE LAW NEGLIGENCE CLAIMS Having dismissed all of plaintiffs federal claims, the district court dismissed without prejudice the state law claims against the owners of the civilian cars involved in the accident pursuant to 28 U.S.C. § 1367(c). The district court had discretion to do so and we find no error. CONCLUSION The judgment is AFFIRMED. . The District Court interpreted plaintiffs § 1983 claim as a substantive due process claim. On appeal, plaintiff properly does not take issue with that interpretation. Even if the use of a police car to stop Cook's flight could be found to be a Fourth Amendment seizure, see Brower v. County of Inyo, 489 U.S. 593, 599, 109 S.Ct. 1378, 103 L.Ed.2d 628 (1989); Adams v. St. Lucie County Sheriffs Dep't, 962 F.2d 1563, 1571 (11th Cir.1992), the claim would be personal to Cook and could not be asserted by a bystander such as plaintiff. See Rakas v. Illinois, 439 U.S. 128, 133-34, 99 S.Ct. 421, 58 L.Ed.2d 387 (1978). Substantive due process analysis is therefore appropriate in this case because plaintiff's claim is .not covered by the Fourth Amendment. Lewis, 118 S.Ct. at 1714. . Another distinction, not raised by plaintiff and immaterial to the outcome of this case, is that in Lewis the injury was to a suspect while in this case it was to a bystander. In our pre-Lewis decision in Fagan v. City of Vineland, 22 F.3d 1296 (3d Cir.1994), we applied the shocks-the-conscience standard to the § 1983 claims of bystanders, without discussion. We agree with the Ninth Circuit’s reasoning in Onossian v. Block, 175 F.3d 1169, 1171 (1999), that under Lewis \"if a police officer is justified in giving chase, that justification insulates the officer from constitutional attack, irrespective of who might be harmed or killed as a consequence of the chase.” See also Jones v. Sherrill, 827 F.2d 1102, 1106-7 (6th Cir.1987) (similar standard applied to injured bystander). McKEE, Circuit Judge, concurring: I" }, { "docid": "12297593", "title": "", "text": "Lewis ’ teaching as applied in this circuit. See Bingue, 512 F.3d at 1175 (discussing Lewis, Moreland and Onossian as requiring purpose to harm where officers must react to an urgent situation and decide whether to pursue a suspect). C. For the Porters to show that Osborn’s shooting of Casey shocks the conscience under the purpose to harm standard of culpability they must prove that his purpose was “to cause harm unrelated to the legitimate object of arrest.” Lewis, 523 U.S. at 836, 118 S.Ct. 1708. More specifically, “[i]t is the intent to inflict force beyond that which is required by a legitimate law enforcement objective that ‘shocks the conscience’ and gives rise to liability under § 1983.... ” Davis v. Township of Hillside, 190 F.3d 167, 172 (3d Cir.1999) (McKee, J., concurring). The parties do not dispute that this standard of culpability was clearly established at the time of the shooting in 2003. Thus, whether Osborn is entitled to qualified immunity on summary judgment turns on whether the Porters can present facts to the district court that would justify a jury finding that Osborn acted with an unconstitutional purpose to harm -Casey. We remand for that determination. Although our eases contain guidance mostly about officers’ intentions and actions that do not evidence a purpose to harm, a close reading of Lewis and orn-eases following it indicates what kind of conduct does reveal a purpose to harm. In Lewis itself, the Supreme Court held that a purely reactive decision to give chase evidenced no intention to “induce ... lawlessness, or to terrorize, cause harm, or kill.” Lewis, 523 U.S. at 855, 118 S.Ct. 1708. The Supreme Court left open the possibility that liability can still attach under Lewis where a plaintiff proves particularly objectionable conduct. See Davis, 190 F.3d at 172-73 (McKee, J., concurring). We agree with Judge McKee’s concurring opinion in Davis, a Third Circuit police chase case, which reasons that where force against a suspect is meant only to “teach him a lesson” or to “get even” then “Lewis would not shield the officers from liability even though" }, { "docid": "9035970", "title": "", "text": "fleeing suspect or not, and, significantly under Lewis and cases interpreting it, whether the officer has time for actual deliberation. 574 F.3d 1294, 1309 (10th Cir. 2009). In Green , an innocent driver was killed after a police officer crashed into the victim's car as the officer \"was simply trying to catch up to [a] suspected violator of the law[.]\" Id. at 1297. The suspect had allegedly filled his car up with approximately $30 worth of gas without paying for it. Id. at 1296. The crash occurred as the officer \"was traveling straight through [an] intersection at a high rate of speed and without his vehicle's siren or lights on[.]\" Id. The officer admitted \"that he was not responding to an emergency situation\" and that the suspect was not actively fleeing him. Id. at 1297. The court identified the officer's actions as falling \"in the middle range of the culpability spectrum\" identified by Lewis - more than negligent but not quite intentional - that could potentially give rise to a substantive due process violation. Id. at 1302 (citation omitted). It thus applied the \"deliberate indifference\" standard when assessing the officer's conduct. Id. at 1302-03. Although it concluded that the conduct was not sufficiently conscience-shocking to violate the Fourteenth Amendment, the court nonetheless proceeded to analyze whether the law on police pursuits was clearly established. Id. at 1303-04. It noted that at least two of our sister circuits - the Eighth and Ninth Circuits - have adopted an \"intent to harm\" standard for all police pursuit cases, whether or not an emergency existed at the time of pursuit. Id. at 1308-09 (citing Bingue v. Prunchak , 512 F.3d 1169, 1177 (9th Cir. 2008) ; Helseth v. Burch , 258 F.3d 867, 871 (8th Cir. 2001) (en banc) ). The Ninth Circuit, for its part, held \"that the Lewis standard of 'intent to harm' applies to all high-speed police chases,\" and it refused to \"draw a distinction between 'emergency' and 'non-emergency' situations\" involving an officer's attempt to apprehend a suspect. Bingue , 512 F.3d at 1177. Similarly, the Eighth Circuit interpreted Lewis" }, { "docid": "21078138", "title": "", "text": "to Reed’s car was a distance of 100 yards. The Onossians were severely, injured. They sued Finn, Yates, Thomas, and various Los Angeles County officials under 42 U.S.C. § 1983, seeking damages for violation of their Fourteenth Amendment due process rights. The district court granted defendants’ motion for summary judgment, using this court’s then-standard for high speed chases set forth in Lewis v. Sacramento County, 98 F.3d 434 (9th Cir.1996). Before we heard the Onossians’ appeal, the United States Supreme Court reversed our decision in Lewis v. Sacramento County. County of Sacramento v. Lewis, 523 U.S. 833, 118 S.Ct. 1708, 140 L.Ed.2d 1043 (1998). The Supreme Court held in Lewis that when injury or death results from a high-speed police chase “only a purpose to cause harm unrelated to the legitimate object of arrest will satisfy the element of arbitrary conduct shocking to the conscience, necessary for a due process violation.” Lewis, 523 U.S. at-, 118 S.Ct. at 1711-12. “[W]e hold that high-speed chases with no intent to harm suspects physically or to worsen their legal plight do not give rise to liability under the Fourteenth Amendment, redressible by an action under § 1983.” Id., 523 U.S. at-, 118 S.Ct. at 1720. We must decide two questions in this case. First, does the Lewis test apply not only to harm caused to those pursued in a high speed chase, but also to harm caused to other drivers? In Lewis itself, two boys on a motorcycle were pursued by a police patrol car, and one of the boys was accidently killed. The words of the Lewis holding, read narrowly, apply only to suspects pursued by the police. For example, in the language quoted above, the Court referred to harm to “suspects” rather than harm to people generally. Similarly, the justification for the Lewis test, understood narrowly, might also apply only to suspects. That is, Lewis establishes a high threshold that must be overcome before someone injured in a police chase can show a due process violation. It might be contended that the duty of police toward innocent people is greater than" } ]

[ { "docid": "18601634", "title": "", "text": "1.11 eliminate the appearance of impropriety approach to disqualification. Prior to the adoption of the Model Rules, several courts had observed that an \"appearance of impropriety is simply too slender a reed on which to rest a disqualification order except in the rarest cases. This is particularly true where ... the appearance of impropriety is not very clear.\" Board of Educ. v. Nyquist, 590 F.2d 1241, 1247 (2d Cir.1979). See also United States v. Judge, 625 F.Supp. 901 (D.Haw.1986). . In holding that Canon 9 of the Model Code does not provide a ground for court-appointed counsel’s disqualification in this case, we have not overlooked a line of cases in this circuit and our predecessor circuit applying that canon. See, e.g., Woods v. Covington County Bank, 537 F.2d 804, 812-19 (5th Cir.1976); United States v. Hobson, 672 F.2d 825, 828 (11th Cir.), cert. denied, 459 U.S. 906, 103 S.Ct. 208, 74 L.Ed.2d 166 (1982); Turner v. Orr, 785 F.2d 1498, 1505-06 (11th Cir.1986). Many of these cases were decided before the Model Rules replaced the Model Code. Of those decided after the replacement, the question of Canon 9’s continued vitality was not placed in issue. Were we to apply the appearance of impropriety standard to the facts of this case, our decision would be the same: court-appointed counsel are not disqualified from representing petitioner. In Hobson, we articulated a two-part test for disqualification under the appearance of impropriety standard: First, although there need not be proof of actual wrongdoing, \"there must be at least a reasonable possibility that some specifically identifiable impropriety did occur.\" Second, \"a court must also find that the likelihood of public suspicion or obloquy outweighs the social interest which will be served by a lawyer’s continued participation in a particular case.” Hobson, 672 F.2d at 828 (citations omitted) (quoting Woods, 537 F.2d at 813 & n. 12). In Norton v. Tallahassee Memorial Hosp., 689 F.2d 938, 941 (11th Cir.1982), we held that the first prong of this test requires a showing of “a reasonable possibility that some specifically identifiable impropriety” has, in fact, occurred. There has" } ]

[ { "docid": "3515325", "title": "", "text": "adopted a two-prong test for disqualification of an attorney for creating an appearance of impropriety in United States v. Hobson, 672 F.2d 825 (11th Cir.1982). First, although there need not be proof of actual wrongdoing, “there must be at least a reasonable possibility that some specifically identifiable impropriety did in fact occur.” .... Second, “a court must also find that the likelihood of public suspicion or obloquy outweighs the social interest which will be served by a lawyer’s continued participation in a particular case.” .... “Under Canon 9, an attorney should be disqualified only when both of these standards have been satisfied.” Id. (quoting Woods v. Covington County Bank, 537 F.2d 804, 813 (5th Cir.1976)). In Hobson, the “specifically identifiable impropriety” consisted of allegations that the defendant’s attorney participated in the drug trafficking conspiracy for which the defendant had been charged. The court found that testimony about this impropriety would raise public suspicion and would “impugn severely [the attorney’s] integrity and credibility in the eyes of the jury.” Id. at 828. In addition, it “could result in erosion of public confidence in the integrity of the bar and of the legal system.” Id. at 829. Therefore, the district court properly disqualified defendant’s attorney in the case. See also United States v. Urbana, 770 F.Supp. 1552 (S.D.Fla. 1991) (defense attorney disqualified where he allegedly participated in RICO conspiracy involving defendant). In this case, the court can find no “specifically identifiable impropriety.” There is no allegation that Mr. Almand was involved in the blackmail incident or in any other wrongdoing of any kind. Instead, the government apparently .contends that the impropriety consists of the conflict of interest created in this case. However, an attorney with a conflict of interest is permitted to represent a criminal defendant so long as that defendant waives the conflict. United States v. Garcia, 517 F.2d 272 (5th Cir.1975). Thus, Mr. Almand’s representation of defendant Martin, in itself, is not improper conduct. Moreover, as the Eleventh Circuit stated in Waters v. Kemp, 845 F.2d 260, 265 n. 12 (11th Cir.1988) (quoting Board of Education v. Nyquist, 590 F.2d" }, { "docid": "23072137", "title": "", "text": "v. State of Alabama, 569 F.2d 1318, 1323 (5th Cir. 1978); United States v. Dinitz, 538 F.2d 1214, 1219 (5th Cir. 1976) (en banc), cert. denied, 429 U.S. 1104, 97 S.Ct. 1133, 51 L.Ed.2d 556 (1977), the right should be deprived only where such drastic action is necessary to further some overriding social or ethical interest. We find the Woods approach more appropriate in the criminal context because it provides a higher degree of protection for this right. Thus, we choose to review the challenged disqualification order as we would most other final orders of a district court, “applying the ‘clearly erroneous’ test to issues of fact while carefully examining a District Judge’s application of relevant ethical standards.” Woods, 537 F.2d at 810. The findings of fact upon which the disqualification order was based are not clearly erroneous. Thus, we must examine the ethical standard, Canon 9, which the district court applied. Canon 9 provides: “A lawyer should avoid even the appearance of professional impropriety.” The purpose of Canon 9 is to preserve public confidence in the bar and in the legal process. This confidence “may be eroded by irresponsible or improper conduct of a lawyer.” A.B.A. Code of Professional Responsibility EC 9-2. Because some conduct that is ethical in fact may be perceived by laypersons as unethical, members of the bar are held by Canon 9 to a standard that prohibits not only actual impropriety, but conduct that may simply appear to be improper. Thus, attorneys have been disqualified under the appearance of impropriety doctrine even where there was no evidence of actual wrongdoing. Woods v. Covington County Bank, 537 F.2d 804, 813 (5th Cir. 1976) (citing General Motors Corp. v. City of New York, 501 F.2d 639, 641 (2d Cir. 1974); United States v. Trafficante, 328 F.2d 117, 120 (5th Cir. 1964)). In Woods v. Covington County Bank, supra, the court set forth a two-prong test for disqualification of an attorney under Canon 9. First, although there need not be proof of actual wrongdoing, “there must be at least a reasonable possibility that some specifically identifiable impropriety did" }, { "docid": "23025464", "title": "", "text": "that every representation against a former client’s codefendant in a related matter raises an appearance of impropriety would unnecessarily restrict the choice of counsel available to litigants. Nor will we presume the lack of integrity involved in a knowing acceptance of representation against a party from whom, or about whom, confidential information had been obtained. If a presumption of integrity, which should be the proud and earned possession of every lawyer, has been destroyed by recent renowned conduct of some members of the bar, it is neither yet necessary, nor socially advantageous, to substitute a presumption of non-integrity. As was said in Woods v. Covington County Bank, 537 F.2d 804 (5th Cir. 1976): It does not follow, however, that an attorney’s conduct must be governed by standards which can be imputed only to the most cynical members of the public. Inasmuch as attorneys now commonly use disqualification motions for purely strategic purposes, such an extreme approach would often unfairly deny a litigant the counsel of his choosing. Indeed, the more frequently a litigant is delayed or otherwise disadvantaged by the unnecessary disqualification of his lawyer under the appearance of impropriety doctrine, the greater the likelihood of public suspicion of both the bar and the judiciary. . Consequently, while Canon 9 does imply that there need be no proof of actual wrongdoing, we conclude that there must be at least a reasonable possibility that some specifically identifiable impropriety did in fact occur. [537 F.2d at 813 (footnotes omitted).] Of itself, representation of a codefendant of B raises no presumption that the lawyer obtained confidential information detrimental to B’s interests. Nor may confidential information which B may have imparted to its counsel be imputed to the lawyer. The relationship between individual counsel for separate codefendants differs in structure and function from the relationship between partners in a law firm and from the relationship between co-counsel for a single party. Applicability of Canon 9 thus turns on a fact question: Did the Lashly firm obtain confidential information in the course of representing a codefendant of Shell and Amoco in the prior suit? The" }, { "docid": "23072138", "title": "", "text": "in the bar and in the legal process. This confidence “may be eroded by irresponsible or improper conduct of a lawyer.” A.B.A. Code of Professional Responsibility EC 9-2. Because some conduct that is ethical in fact may be perceived by laypersons as unethical, members of the bar are held by Canon 9 to a standard that prohibits not only actual impropriety, but conduct that may simply appear to be improper. Thus, attorneys have been disqualified under the appearance of impropriety doctrine even where there was no evidence of actual wrongdoing. Woods v. Covington County Bank, 537 F.2d 804, 813 (5th Cir. 1976) (citing General Motors Corp. v. City of New York, 501 F.2d 639, 641 (2d Cir. 1974); United States v. Trafficante, 328 F.2d 117, 120 (5th Cir. 1964)). In Woods v. Covington County Bank, supra, the court set forth a two-prong test for disqualification of an attorney under Canon 9. First, although there need not be proof of actual wrongdoing, “there must be at least a reasonable possibility that some specifically identifiable impropriety did in fact occur.” 537 F.2d at 813. Second, “a court must also find that the likelihood of public suspicion or obloquy outweighs the social interests which will be served by a lawyer’s continued participation in a particular case.” Id. at 813 n.12. “Under Canon 9, an attorney should be disqualified only when both of these standards have been satisfied.” Id. Applying this standard to the facts of this case, we find that the first prong is easily satisfied. The affidavits of Robinson and Alexander describe “specifically identifiable impropriety” on the part of Hobson’s attorney and establish a “reasonable possibility” that the impropriety occurred. Even though the allegations may be false, such evidence at the trial would nevertheless create the possibility in the minds of the jurors. To apply the second prong of the test, we must balance the likelihood of public suspicion against the social interests served by the attorney’s continued representation. This task becomes especially difficult in criminal cases, for the interest in permitting a criminal defendant to retain counsel of his choice is" }, { "docid": "18831384", "title": "", "text": "representation of the Georges. The issue at the time of Fram’s application for foreclosure of its security interest was IPD's and the Georges’ financial condition at that time, i. e., June, 1980. Any knowledge conceivably acquired by Spencer, Fane, Britt and Browne regarding the Georges’ financial situation prior to 1978 was not relevant to their financial situation in 1980. Canon 9, which plaintiffs advance as another basis for disqualification of Spencer, Fane, Britt and Browne as defendant’s attorneys, provides: “A lawyer should avoid even the appearance of professional impropriety.” The Court finds that there is no impropriety or appearance of impropriety in Spencer, Fane, Britt and Browne’s representation of Fram under the circumstances of this case as outlined to Court. As was said in Woods v. Covington County Bank, 537 F.2d 804, 813 (5th Cir. 1976): “It does not follow, however, that an attorney’s conduct must be governed by standards which can be imputed only to the most cynical members of the public. Inasmuch as attorneys now commonly use disqualification motions for purely strategic purposes, such an extreme approach would often unfairly deny a litigant the counsel of his choosing. Indeed, the more frequently a litigant is delayed or otherwise disadvantaged by the unnecessary disqualification of his lawyer under the appearance of impropriety doctrine, the greater the likelihood of public suspicion of both the bar and the judiciary.... Consequently, while Canon 9 does imply that there need be no proof of actual wrongdoing, we conclude that there must be at least a reasonable possibility that some specifically identifiable impropriety did in fact occur.” Plaintiffs did not demonstrate that there is “a reasonable possibility that some specifically identifiable impropriety did occur.” They have only shown the fact of Spencer, Fane, Britt and Browne’s previous repre sentation of the Georges and present representation of Fram, and that the Georges and Fram are now adversaries in this litigation, but they have been unable to show the required substantial relationship between the two representations. The Court, in International Electronics Corp. v. Flanzer, 527 F.2d 1288, 1295 (2nd Cir. 1975), stated: “[C]anon 9, though there" }, { "docid": "20118589", "title": "", "text": "unethical and thereby could erode public confidence in the judicial system or the legal profession.” Woods v. Covington County Bank, 537 F.2d 804, 813 (5th Cir.1976). Courts have therefore disqualified attorneys due to the appearance of impropriety even where there was no evidence of actual wrongdoing. See, e.g., Hobson, 672 F.2d at 828 (likelihood of public suspicion arising from anticipated testimony that defense attorney was aware of marijuana smuggling scheme for which defendant charged mandated disqualification, even absent proof that attorney was implicated in scheme); United States v. Miller, 624 F.2d 1198, 1202 (3d Cir. 1980) (tax attorney and his firm disqualified from representing defendant on tax evasion charges where attorney had worked in tax fraud unit of United States Attorney’s Office during time that government’s case against defendant was prepared because the public “would see little to assure [itjself that [the attorney] had not utilized his position to obtain confidential information or to serve conflicting loyalties.”) Lest Canon 9 be interpreted to require that attorneys yield to the concerns of even the most conservative and prudent members of society, the Fifth Circuit has articulated a logical and appropriate standard governing disqualifications under Canon 9. First, “there must be at least a reasonable possibility that some specifically identifiable impropriety did in fact occur.” Woods, 537 F.2d at 813. Second, there must be a likelihood of “public suspicion or obloquy” which would outweigh the social interests served by the attorney’s continued participation in the case. Id. at 813 n. 12. An attorney should not be disqualified unless both prongs of the Woods standard are met. Id.; see also United States v. Snyder, 707 F.2d 139, 145 (5th Cir.1983); Hobson, 672 F.2d at 828. Applying these principles to the facts before me, I find that the contingent fee arrangement between the union, Sprague, and Daniels creates “at least a reasonable possibility that some specifically identifiable impropriety did in fact occur.” Standing alone, Sprague’s testimony is telling in its simplicity. He steered the union-city case to Daniels, handled an appeal for Daniels, negotiated a contingent fee with the union for Daniels, and then" }, { "docid": "17146629", "title": "", "text": "received any confidential information.” Id. Therefore, the district judge denied the motion to disqualify. In affirming the district court, the Eighth Circuit Court of Appeals stated that: [u]nlike those of Canons 4 and 5, the broad injunction of Canon 9 against the “appearance of impropriety” relates to the entire spectrum of lawyer conduct. That no unethical or untoward act may have occurred is implicit in the canon’s emphasis on “appearance.” The conduct under scrutiny must therefore be evaluated in an “eye of the beholder” context, and the lawyer must be disqualified when an actual appearance of evil exists, though there be no proof of actual evil. Id. at 609. However, the Court, quoting from Woods v. Covington County Bank, 537 F.2d 804, 813 (5th Cir.1976), cautioned that: 'It does not follow, however, that an attorney’s conduct must be governed by standards which can be imputed only to the most cynical members of the public. Inasmuch as attorneys now commonly use disqualification motions for purely strategic purposes, such an extreme approach would often unfairly deny a litigant the counsel of his choosing. Indeed, the more frequently a litigant is delayed or otherwise disadvantaged by the unnecessary disqualification of his lawyer under the appearance of impropriety doctrine, the greater the likelihood of public suspicion of both the bar and the judicary ... Consequently, while Canon 9 does imply that there need be no proof of actual wrongdoing, we conclude that there must be at least a reasonable possibility that some specifically identifiable impropriety did in fact occur.’ Id. at 609. Applying these principles to the situation in Weber, the Court concluded that because of the nature of the relationship between individual counsel for separate co-defendants in the previous suit, because of the prompt disposition of the earlier suit on a purely procedural basis, and because of the limited discussions among counsel for the co-defendants, “no basis exists for presuming that confidential information was obtained which presumption would in turn serve as the genesis of an appearance of impropriety.” Id. at 610. Without such a presumption the burden was on Shell and Amoco" }, { "docid": "3515324", "title": "", "text": "RESERVE a ruling on the government’s motion based upon this ground until a hearing as required under United States v. Garcia, 517 F.2d 272 (5th Cir.1975), can be held. 2. Appearance of Impropriety The government also contends that Mr. Almand should be disqualified because his representation of defendant Martin creates an “appearance of impropriety.” Defendant contends that “appearance of impropriety” is no longer grounds for attorney disqualification. See Waters v. Kemp, 845 F.2d 260, 265 (11th Cir.1988). However, in Waters, the professional conduct of attorneys was governed by the American Bar Association Model Rules of Profes sional Conduct, under which “appearance of impropriety” is no longer a ground for attorney disqualification. In contrast, the conduct of attorneys in this district is governed by the Georgia Code of Professional Responsibility. See Rule 13.1(A) of the Local Rules of the Middle District of Georgia. Canon 9 of this Code states that “[a] lawyer should avoid even the appearance of professional impropriety.” Thus, this ground can be used to disqualify an attorney in this district. The Eleventh Circuit adopted a two-prong test for disqualification of an attorney for creating an appearance of impropriety in United States v. Hobson, 672 F.2d 825 (11th Cir.1982). First, although there need not be proof of actual wrongdoing, “there must be at least a reasonable possibility that some specifically identifiable impropriety did in fact occur.” .... Second, “a court must also find that the likelihood of public suspicion or obloquy outweighs the social interest which will be served by a lawyer’s continued participation in a particular case.” .... “Under Canon 9, an attorney should be disqualified only when both of these standards have been satisfied.” Id. (quoting Woods v. Covington County Bank, 537 F.2d 804, 813 (5th Cir.1976)). In Hobson, the “specifically identifiable impropriety” consisted of allegations that the defendant’s attorney participated in the drug trafficking conspiracy for which the defendant had been charged. The court found that testimony about this impropriety would raise public suspicion and would “impugn severely [the attorney’s] integrity and credibility in the eyes of the jury.” Id. at 828. In addition, it “could" }, { "docid": "22160664", "title": "", "text": "and procedures.” Instead, it must prove that Smathers & Thompson has knowledge of the particular practices and procedures which are the subject matter of Duncan’s suit. It can do this either by establishing that the present and previous representations are substantially related or by pointing to specific instances where it revealed relevant confidential information regarding its practices and procedures. Merrill Lynch has failed to do either. We hold that, on this record, Merrill Lynch has failed to demonstrate the requisite similarity between the prior representations and the present suit. Until it does so, Merrill Lynch is not entitled to the inference that Smathers & Thompson possesses confidential information that is relevant to Duncan’s action. B. Canon 9 In the disqualification motion filed with the district court, Merrill Lynch argued that Smathers & Thompson’s representation of Duncan was also barred by the proscription that “[a] lawyer should avoid even the appearance of impropriety.” Canon 9, ABA Code. The district court, however, gave no discussion of Canon 9 in its disqualification order, other than stating that “the court is mindful of Canon 9 which prohibits even the appearance of impropriety.” This statement provides us with no basis for determining whether or for what reason the court felt that Smathers & Thompson’s representation of Duncan was prohibited by Canon 9. In its brief Merrill Lynch refers to this Circuit’s two-part test for determining when an attorney should be disqualified for an appearance of impropriety: (1) the trial court must find some “specifically identifiable appearance of improper conduct” and (2) the court must “find that the likelihood of public suspicion or obloquy outweighs the social interest which will be served by a lawyer’s continued participation in a particular case.” Woods v. Covington County Bank, 537 F.2d 804, 812 & 813 n. 12 (5th Cir. 1976). Merrill Lynch then argues that this test is met here for two reasons. First, it argues an actual impropriety resulted when Smathers & Thompson violated Canon 4 by taking a case against Merrill Lynch which was substantially related to the firm’s former representation of Merrill Lynch. We have held," }, { "docid": "15409739", "title": "", "text": "violated his Sixth Amendment right to counsel. Specifically, he claims that he had an absolute right to the counsel of his choice irrespective of any potential infirmities. This case, however, falls squarely within our decision in United States v. Hobson, 672 F.2d 825 (11th Cir.), cert. denied, 459 U.S. 906, 103 S.Ct. 208, 74 L.Ed.2d 166 (1982), in which we stated, “[t]he right to counsel of choice is not absolute ... and must give way where its vindication would create a serious risk of undermining public confidence in the integrity of our legal system.” Id. at 828. In Hobson, the defendant was charged with violating the federal narcotics laws. Relying upon the affidavits of two witnesses implicating one of the defendant’s attorneys in the criminal operation, the district court entered a disqualification order. In so doing, the court concluded that evidence of the attorney’s involvement might be offered and, if so, would possibly create the appearance of impropriety on the attorney’s part and would bring before the jury an issue of the attorney’s credibility which would operate to the defendant’s detriment. On appeal, the court applied the two-pronged test for disqualification of an attorney under Canon 9 of Florida’s Code of Professional Responsibility: First, although there need not be proof of actual wrongdoing, “there must be at least a reasonable possibility that some specifically identifiable impropriety did in fact occur.” Second, “a court must also find that the likelihood of public suspicion or obloquy outweighs the social interest which will be served by a lawyer’s continued participation in a particular case.” “Under Canon 9, an attorney should be disqualified only when both of these standards have been satisfied.” Id. (citations omitted) (quoting Woods v. Covington County Bank, 537 F.2d 804, 813 (5th Cir.1976)). Concluding that the district court’s findings of fact were not clearly erroneous and that the court properly applied the relevant ethical standards, the court affirmed the order disqualifying retained counsel. In this case, the two-pronged test was also satisfied. First, the prosecutor informed the district court that the government expected to show “positive potential testimony against Mr." }, { "docid": "22227383", "title": "", "text": "the drafters’ intent to protect all knowledge acquired from a client, since the latter two are defined terms. See id., DR 4-101(A). Information so acquired is sheltered from use by the attorney against his client by virtue of the existence of the attorney-client relationship. This is true without regard to whether someone else may be privy to it. NCK Organization v. Bregman, 542 F.2d 128, 133 (2d Cir. 1976). The obligation of an attorney not to misuse information acquired in the course of representation serves to vindicate the trust and reliance that clients place in their attorneys. A client would feel wronged’ if an opponent prevailed against him with the aid of an attorney who formerly represented the client in the same matter. As the court recognized in E. F. Hutton & Co. v. Brown, 305 F.Supp. 371, 395 (S.D.Tex.1969), this would undermine public confidence in the legal system as a means for adjudicating disputes. We recognize that this concern implicates the principle embodied in Canon 9 that attorneys “should avoid even the appearance of professional impropriety.” ABA Code of Professional Responsibility, Canon 9 (1970). We have said that under this canon there must be a showing of a reasonable possibility that some specifically identifiable impropriety in fact occurred and that the likelihood of public suspicion must be weighed against the interest in retaining counsel of one’s choice. Woods v. Covington County Bank, 537 F.2d 804, 812-13 (5th Cir. 1976). The conflict of interest is readily apparent here, however, and we think that the balance weighs in favor of disqualification. See Zylstra v. Safeway Stores, Inc., 578 F.2d 102 (5th Cir. 1978) (adopting per se rule of disqualification in class action cases for attorneys who are members of the class or partners or spouses of named plaintiffs). The need to safeguard the attorney-client relationship is not diminished by the fact that the prior representationn was joint with the attorney’s present client. Accordingly, we find the rule of Wilson P. Abraham Construction Corp. v. Armco Steel Corp. fully applicable to this case. Since the district court’s findings of prior representation and" }, { "docid": "22227384", "title": "", "text": "professional impropriety.” ABA Code of Professional Responsibility, Canon 9 (1970). We have said that under this canon there must be a showing of a reasonable possibility that some specifically identifiable impropriety in fact occurred and that the likelihood of public suspicion must be weighed against the interest in retaining counsel of one’s choice. Woods v. Covington County Bank, 537 F.2d 804, 812-13 (5th Cir. 1976). The conflict of interest is readily apparent here, however, and we think that the balance weighs in favor of disqualification. See Zylstra v. Safeway Stores, Inc., 578 F.2d 102 (5th Cir. 1978) (adopting per se rule of disqualification in class action cases for attorneys who are members of the class or partners or spouses of named plaintiffs). The need to safeguard the attorney-client relationship is not diminished by the fact that the prior representationn was joint with the attorney’s present client. Accordingly, we find the rule of Wilson P. Abraham Construction Corp. v. Armco Steel Corp. fully applicable to this case. Since the district court’s findings of prior representation and substantial relationship are not disputed, we affirm the disqualification of Mr. Wegmann. III Whether Mr. Sprung should be disqualified presents a more difficult case. He has never had an attorney-client relationship with plaintiff; the district court disqualified him by imputation of Mr. Wegmann’s conflict. Up to this point we have accepted, for the sake of argument, defendants’ assertion that they were formerly joint clients with plaintiff of Mr. Wegmann. There is no dispute that plaintiff and defendants were previously represented by Mr. Wegmann simultaneously, but plaintiff maintains that, at least with respect to the registration of the service marks, Mr. Wegmann was representing plaintiff alone. The district court made no findings on the issue. Because we think that the disqualification of Mr. Sprung may turn on this fact and others not found by the court below, we vacate that part of the court’s order relating to Mr. Sprung and remand the cause for further proceedings. For the guidance of the court on remand, we set forth our view of the applicable ethical standards. If the" }, { "docid": "10432029", "title": "", "text": "indicating that trial counsel was aware of the drug smuggling scheme for which his client was standing trial and had assisted a cooperating witness in securing illegal employment. The court enumerated a two-prong test germane to disqualification cases implicating Canon 9 of the American Bar Association Model Code of Professional Responsibility (“Model Code”). First, the facts must demonstrate “at least a reasonable possibility that some specifically identifiable impropriety” occurred. Id. at 828 (quoting Woods v. Covington County Bank, 537 F.2d 804, 813 (5th Cir.1976)). Proof of actual wrongdoing is unnecessary. Id. Second, the facts must also manifest “that the likelihood of public suspicion or obloquy outweighs the social interests which will be served by a lawyer’s continued participation in a particular case.” Id. Because the facts of the instant case closely parallel those in Hobson, this court would ordinarily proceed to apply the Hobson test. However, since Hobson, “[t]he Model Code has been replaced by the Model Rules ... [and] [u]nder the Model Rules the appearance of impropriety is not a ground for disqualifying a lawyer from representing a party to a lawsuit.” Waters v. Kemp, 845 F.2d 260, 265 (11th Cir.1988). Rule 16.C. of the Local Rules for the Southern District of Florida provides that attorneys appearing before this court are governed by the “current Canons of Professional Ethics of the American Bar Association,” which no longer include Canon 9. Thus, it would appear that the government’s challenge to counsel’s continued representation under Canon 9 is not cause for disqualification. See Waters, 845 F.2d at 265-266 (Canon 9 inapplicable in the Southern District of Georgia whose local rule relating to professional conduct mirrors Local Rule 16.C.); accord United States v. Washington, 797 F.2d 1461, 1466 (9th Cir.1986) (“[w]e have grave doubts whether an appearance of impropriety would ever create a sufficiently serious threat to public confidence in the integrity of the judicial process to justify overriding Sixth Amendment rights”). However, the Eleventh Circuit has not yet foreclosed the application of Hobson altogether. In Waters, the court noted that “were [it] to apply the appearance of impropriety standard to the" }, { "docid": "1434076", "title": "", "text": "ethical standards. Id. at 828; Woods v. Covington County Bank, 537 F.2d 804, 810 (5th Cir. 1976). Turning to the district court’s findings of fact, we conclude that one such finding is clearly erroneous. The district court found that “there is a reasonable possibility of the City Commission of the City of Tallahassee having direct control over the entity which [Spriggs] now is suing.” This finding has no support in the record. The City Commission would gain direct control over the Hospital only if TMRMC defaulted under the lease, and we find the possibility of such an occurrence to be remote at best. Therefore, we reject the district court’s finding on this point. In all other- respects, the district court’s findings of fact are not clearly erroneous. We now must examine the lower court’s interpretation and application of the relevant ethical standard, Canon 9 of the Code of Professional Responsibility. Canon 9 provides: “A lawyer should avoid even the appearance of professional impropriety.” The purpose of Canon 9 is to preserve public confidence in the bar and in the legal process. In United States v. Hobson, 672 F.2d 825 (11th Cir. 1982), this court articulated the following two-prong test for disqualification of an attorney under Canon 9. First, although proof of actual wrongdoing is not required, there must exist a reasonable possibility that some specifically identifiable impropriety did in fact occur. Second, the likelihood of public suspicion or obloquy must outweigh the social interests that will be served by the attorney’s continued participation in the case. United States v. Hobson, 672 F.2d at 828. An attorney should be disqualified under Canon 9 only if both prongs of this test are satisfied. Id. The district court interpreted Canon 9 to apply “prospectively,” and thus concluded that the first prong of the test is satisfied if there exists “a reasonable possibility that some specifically identifiable impropriety could occur in the future.” In this respect, the district court erred. The first prong of the test clearly requires a showing of a reasonable possibility that some specifically identifiable impropriety did in fact occur. United" }, { "docid": "358280", "title": "", "text": "counsel’s] professional judgment on behalf of [its] client [was] or reasonably [might have been] affected by [its] own financial, business, property, or personal interest.” Code of Professional Responsibility DR 5-101(A). Furthermore, DR 5-101 is not applicable in this case because the PMC, at the very least, constructively consented to the representation of individual section IX claimants by PMC counsel since it was the PMC itself that offered the services of PMC counsel to these claimants for the presentation of their cases to the special master. Disciplinary Rule 5-105 also presents no problem in the case at hand. DR 5-105 is concerned with the concurrent employment of a lawyer by multiple clients with conflicting or potentially conflicting interests. No such conflict is present here because PMC counsel did not represent those claimants found to have meritorious claims until after the appearance of the individual claimant before the PMC was completed. Thus, by the time PMC counsel began representing an individual claimant, the interests of the claimant and the PMC were not conflicting but concurrent; for, since the purpose of the PMC was the continuing enforcement of the judgment, after it had determined that an individual claim had merit, the interest of the PMC— like that of the claimant — was in seeing that the claim was successfully presented to the special master. Finally, the test for disqualification of an attorney under Canon 9 is a two-pronged one: First, although there need not be proof of actual wrongdoing, “there must be at least a reasonable possibility that some specifically identifiable impropriety did in fact occur.” ... Second, “a court must also find that the likelihood of public suspicion or obloquy outweighs the social interests which will be served by a lawyer’s continued participation in a particular case.” ... “Under Canon 9, an attorney should be disqualified only when both of these standards have been satisfied.” ... United States v. Hobson, 672 F.2d 825, 828 (11th Cir.), cert. denied, 459 U.S. 906, 103 S.Ct. 208, 74 L.Ed.2d 166 (1982) (quoting Woods v. Covington County Bank, 537 F.2d 804, 813 & n. 12 (5th" }, { "docid": "47630", "title": "", "text": "which were the subject of the former representation, (iii) Canon 9 requires avoidance of even the appearance of impropriety, and (iv) the attorneys’ testimony would be prejudicial to presentation of the case. On our review, we must apply the “clearly erroneous” test to the findings of fact while carefully examining District Court’s application of relevant ethical standards. Brennan’s, Inc. v. Brennan’s Restaurants, Inc., 590 F.2d 168, 171 (5th Cir. 1979), citing Woods v. Covington County Bank, 537 F.2d 804, 810 (5th Cir. 1977). We need not disqualify an attorney in a matter concerning a former client unless the terminated employment had some substantial relationship to the pending suit or unless he has received some privileged information. Church of Scientology v. McLean, 615 F.2d 691, 692 (5th Cir. 1980). Contrary to Cossette’s assertions, “[t]he rule of disqualification is not mechanically applied in this Circuit.” Id., citing Brennan’s, 590 F.2d at 173-74. Rather, it involves a balancing of the likelihood of public suspicion against the interest in retaining counsel of one’s choice. McLean, 615 F.2d at 691. There must be a reasonable possibility some specifically identifiable impropriety occurred in order to warrant disqualification. Id. See also Woods, 537 F.2d at 813, and Zylstra v. Safeway Stores, Inc., 578 F.2d 102, 104 (5th Cir. 1978). In this case, however, Cossette has failed to establish that the likelihood of public suspicion outweighs the CSD firms’ right to counsel of their choice. Bogner had virtually no contact with the CSD firms and, in fact, left the Maguire firm before the institution of this action. During his representation of Cossette, Bogner formed a corporation for Cossette, worked on his immigration problems, and answered usury questions regarding interest rates on the equipment package contract. Absent the state fraud and contract claims, none of these issues related to the antitrust litigation presently pending before the trial court. There was no demonstration that any confidential information the Maguire firm may have acquired during Bogner’s representation of Cossette would be of any value to the CSD firms in resolution of the antitrust claims for trade practice violations. As the pendant" }, { "docid": "22227386", "title": "", "text": "court finds that Mr. Wegmann previously represented plaintiff and defendants jointly, we can see no reason why Mr. Sprung should be disqualified. As between joint clients there can be no “confidences” or “secrets” unless one client manifests a contrary intent. See Garner v. Wolfinbarger, 430 F.2d 1093, 1103 (5th Cir. 1970), cert. denied, sub nom. Garner v. First American Life Insurance Co., 401 U.S. 974, 91 S.Ct. 1191, 28 L.Ed.2d 323 (1971); ABA Code of Professional Responsibility, DR 4-101 (1970). Thus, Mr. Sprung could not have learned anything from Mr. Wegmann that defendants did not already know or have a right to know. Plaintiff argues that this permits the defendants indirectly to gain the benefit of Mr. Wegmann’s services when they could not do so directly. If the representation was joint, however, defendants possess no information as to which plaintiff could have had any expectation of privacy in relation to the defendants. The only remaining ground for disqualification then would be an appearance of impropriety. In Part II of this opinion, we decided there is such an appearance when an attorney represents an interest adverse to that of a former client in a matter substantially related \"to the subject of the prior representation. Mr. Sprung has never been plaintiff’s counsel, however; he is only the co-counsel of one who was. We are enjoined not to give Canon 9 an overly broad application and to maintain “a reasonable balance between the need to ensure ethical conduct on the part of lawyers . . . and other social interests, which include the litigant’s right to freely chosen counsel.” Woods v. Covington County Bank, 537 F.2d 804, 810, (5th Cir. 1976). In the case of Mr. Sprung, we think the balance weighs against disqualification. Assuming that Mr. Wegmann’s prior retainer was joint, plaintiff has suffered no actual prejudice from communications between Mr. Wegmann and Mr. Sprung. There is a possibility that Mr. Sprung has obtained informally information that he would otherwise have had to seek through discovery. The Second Circuit has indicated that circumvention of the discovery rules is grounds for automatic disqualification." }, { "docid": "10432028", "title": "", "text": "already depleted defendant. Furthermore, the accused may not have sufficient resources to retain his original counsel of choice to represent him at a second trial, in which case the second trial may be nothing more than a replay of the first. Not surprisingly, therefore, courts disqualify an accused’s lawyer of choice only as “a measure of last resort.” Diozzi, 807 F.2d 10, 12 (1st Cir.1986). It is against this impressive backdrop of cases recognizing the magnitude of the right to counsel of choice that this court must approach a government motion to disqualify counsel. B. Hobson’s Choice When the continued representation of a defendant by a particular lawyer threatens to undermine the public’s confidence in the system of justice, a court may disqualify that lawyer, notwithstanding his right to counsel of choice. In the seminal case on disqualification of counsel, United States v. Hobson, 672 F.2d 825 (11th Cir.), cert. denied, 459 U.S. 906, 103 S.Ct. 208, 74 L.Ed.2d 166 (1982), the Eleventh Circuit affirmed a trial court’s disqualification order where the government proffered testimony indicating that trial counsel was aware of the drug smuggling scheme for which his client was standing trial and had assisted a cooperating witness in securing illegal employment. The court enumerated a two-prong test germane to disqualification cases implicating Canon 9 of the American Bar Association Model Code of Professional Responsibility (“Model Code”). First, the facts must demonstrate “at least a reasonable possibility that some specifically identifiable impropriety” occurred. Id. at 828 (quoting Woods v. Covington County Bank, 537 F.2d 804, 813 (5th Cir.1976)). Proof of actual wrongdoing is unnecessary. Id. Second, the facts must also manifest “that the likelihood of public suspicion or obloquy outweighs the social interests which will be served by a lawyer’s continued participation in a particular case.” Id. Because the facts of the instant case closely parallel those in Hobson, this court would ordinarily proceed to apply the Hobson test. However, since Hobson, “[t]he Model Code has been replaced by the Model Rules ... [and] [u]nder the Model Rules the appearance of impropriety is not a ground for disqualifying a" }, { "docid": "15409740", "title": "", "text": "would operate to the defendant’s detriment. On appeal, the court applied the two-pronged test for disqualification of an attorney under Canon 9 of Florida’s Code of Professional Responsibility: First, although there need not be proof of actual wrongdoing, “there must be at least a reasonable possibility that some specifically identifiable impropriety did in fact occur.” Second, “a court must also find that the likelihood of public suspicion or obloquy outweighs the social interest which will be served by a lawyer’s continued participation in a particular case.” “Under Canon 9, an attorney should be disqualified only when both of these standards have been satisfied.” Id. (citations omitted) (quoting Woods v. Covington County Bank, 537 F.2d 804, 813 (5th Cir.1976)). Concluding that the district court’s findings of fact were not clearly erroneous and that the court properly applied the relevant ethical standards, the court affirmed the order disqualifying retained counsel. In this case, the two-pronged test was also satisfied. First, the prosecutor informed the district court that the government expected to show “positive potential testimony against Mr. Marger,” and testimony at trial described “specifically identifiable impropriety” on Marger’s part and established a “reasonable possibility” that the impropriety occurred. In particular, Norman Vick, a participant in the drug operation, testified that Marger recovered Garrett’s purchase money after an aborted attempt to buy a 70-foot shrimp trawler for smuggling purposes. Vick and another participant in the drug operation, Joel Knowles, testified that Marger was involved in an aborted effort to steal a 160-foot oil field supply boat again for smuggling purposes. Knowles also testified that he used Marger’s office to contact Garrett in connection with the operation. Although these allegations may be false, this evidence no doubt would have raised the possibility of misconduct in the jurors’ minds. With respect to the second prong of the test, we conclude that the likelihood of public suspicion outweighed the social interests in Marger’s continued representation of Garrett. Although Marger’s familiarity with Garrett’s situation was valuable, he was not irreplaceable. Moreover, the testimony of Vick and Knowles portrayed Garrett’s attorney as having engaged in unlawful activities and" }, { "docid": "23213574", "title": "", "text": "Court declined to rule on whether orders granting such motions were appealable. Id. at 378, 372 n.8, 101 S.Ct. at 676, 672 n.8, 66 L.Ed.2d at 581, 577 n.8. Since Firestone, this court has held that orders granting motions to disqualify counsel are appealable. Cossette v. Country Style Donuts, Inc., 647 F.2d 526 (5th Cir. 1981); Duncan v. Merrill Lynch, Pierce, Fenner & Smith, Inc., 646 F.2d 1020 (5th Cir. 1981). Duncan contains an extended discussion of the rule in this circuit prior to Firestone and holds that Firestone does not change this circuit’s rule as to orders granting motions to disqualify counsel. Id. at 1024-27. Under prevailing circuit precedent, we have jurisdiction. Though the district court based its decision on Canons 4, 5, and 9 of the Code, our focus is on Canon 9 only. To determine whether a lawyer has avoided “even the appearance of professional impropriety” under Canon 9, this court requires that the movant show there is a reasonable possibility of the occurrence of “specifically identifiable appearance of improper conduct,” and that the “likelihood of public suspicion or obloquy outweighs the social interest” in obtaining counsel of one’s choice. Duncan, 646 F.2d at 1032; Brennan’s, Inc. v. Brennan’s Restaurants, Inc., 590 F.2d 168, 172 (5th Cir. 1979); Woods v. Covington County Bank, 537 F.2d 804, 812-13 (5th Cir. 1976). We first focus on whether there has been a showing that there is a reasonable possibility that some specific impropriety has in fact or will in fact occur. In order to show this specific impropriety, we turn to the arguments counsel have made pertaining to Canon 4, for it is clear that violations of other Canons may implicate Canon 9 as well. Duncan, 646 F.2d at 1032; Brennan’s, 590 F.2d at 172. In order to establish a violation of Canon 4, this court has required that there have been an actual attorney-client relationship between the party seeking disqualification and the attorney, and that the matters involved in the present litigation be substantially related to the matters involved in the former representation. Wilson P. Abraham Construction Corp. v." } ]

[ { "docid": "23315992", "title": "", "text": "FISHER, Circuit Judge. Volodymir Fedunyak, a Ukrainian national, petitions the court for review of a Board of Immigration Appeals (BIA) decision denying asylum and withholding of removal. Although the Immigration Judge (IJ) found that Fedunyak had suffered sufficient persecution to demonstrate that he would likely be tortured if he was returned to the Ukraine and thus was entitled to relief under the Convention Against Torture (CAT), a majority of the BIA panel declined to find that Fedun-yak’s persecution was on account of his political opinions. We have jurisdiction under 8 U.S.C. § 1252 and review the BIA’s findings of fact for substantial evidence. See Aguiluz-Arellano v. Gonzales, 446 F.3d 980, 982 (9th Cir.2006). Because the record compels finding that Fedun-yak’s protests against official corruption constituted political opinion, we grant the petition for review and remand for further proceedings. I. Background Fedunyak opened an automobile sales business in 1997 in the Ukrainian city of Striy. The chief of Striy’s registration department ordered Fedunyak to share his success and demanded that Fedunyak pay $100 for every car sold. Fedunyak made one payment but then began to register cars through his friends to avoid making the payoffs. As punishment, three unidentified gunmen beat Fedunyak until he lost consciousness. Upon regaining consciousness, the assailants demanded that Fedun-yak pay $2,000 to the registration department chief. After forcing Fedunyak to sign a promissory note, the assailants knocked him unconscious once again. Fedunyak awoke in a hospital, where he was treated for a concussion, a broken nose, a torn ear and bruises. While recuperating, Fedunyak asked the police to investigate the attack. However, once Fedunyak was released from the hospital, a police inspector subpoenaed him and threatened to subject him to additional beatings if he did not fulfill the registration department chiefs $2,000 extortion demand. Fedunyak agreed to pay the debt by delivering the money to two policemen who warned Fed-unyak that he would not survive if anybody found out about the shakedown. In early 1999, Fedunyak started a new business repairing cars. He was soon visited by an inspector from the tax police who demanded a" } ]

[ { "docid": "11816468", "title": "", "text": "other reasons that this country does not recognize as legitimate.” De Souza v. INS, 999 F.2d 1156, 1158 (7th Cir.1993). Acts of persecution must rise above “mere harassment,” Roman v. INS, 233 F.3d 1027, 1034 (7th Cir.2000), and include threats to life or freedom, as well as non-life threatening violence or physical abuse, Ciorba, 323 F.3d at 545. As examples of persecution, we have cited “detention, arrest, interrogation, prosecution, imprisonment, illegal searches, confiscation of property, surveillance, beatings, or torture.” Mitev v. INS, 67 F.3d 1325, 1330 (7th Cir.1995). As a third and final avenue to avoiding removal, Torres also requested protection under the Convention Against Torture. See 8 C.F.R. § 208.16(C). To succeed, Torres must prove that it is more likely than not that he will be tortured within the meaning of the Convention if he returns to Honduras. See Prela, 394 F.3d at 519; see also 8 C.F.R. § 208.16(c)(4). “Torture” is “any act by which severe pain or suffering, whether physical or mental, is intentionally inflicted on a person ... by or at the instigation of or with the consent or acquiescence of a public official or other person acting in an official capacity.” 8 C.F.R. § 208.18(a)(1). The IJ in this case declined Torres’s request for relief under the Convention Against Torture. B. The IJ’s Adverse Credibility Determination The IJ rejected all three of Torres’s claims — for asylum, withholding of removal, and protection under the Convention Against Torture — solely because the IJ found that Torres’s evidence lacked credibility. One of an immigration judge’s primary functions is to assess the credibility of an applicant’s evidence. Capric, 355 F.3d at 1085. When making a credibility determination, an IJ evaluates the applicant’s claims “only for internal consistency, detail, and plausibility.” Id. The IJ’s credibility finding is often paramount “[b]e-cause direct authentication or verification of an alien’s testimony and/or evidence is typically very difficult and often impossible.” Id. In lieu of direct evidence, an alien’s credible testimony, by itself, is generally sufficient to sustain the alien’s burden of proof. Lin v. Ashcroft, 385 F.3d 748, 756 (7th Cir.2004); Uwase" }, { "docid": "11816465", "title": "", "text": "of fact that we review for substantial evidence. Capric v. Ashcroft, 355 F.3d 1075, 1086 (7th Cir.2004). We must affirm the immigration court’s decision if it is supported by “reasonable, substantial, and probative evidence on the record considered as a whole.” INS v. Elias-Zacarias, 502 U.S. 478, 481, 112 S.Ct. 812, 117 L.Ed.2d 38 (1992) (internal quotation marks omitted). We will reverse only if the evidence “ ‘compels [a] contrary conclusion.’ ” Ciorba v. Ashcroft, 323 F.3d 539, 544 (7th Cir.2003) (quoting Bradvica v. INS, 128 F.3d 1009, 1012 (7th Cir.1997)). When, as here, the BIA adopts the reasoning of the IJ, we review the IJ’s decision under this deferential standard. Ursachi v. INS, 296 F.3d 592, 594 (7th Cir.2002). In this case, Torres pursued three alternative paths to avoid removal from the United States: asylum, withholding of removal, and protection under the Convention Against Torture. Below, we first discuss the standards for these claims. The IJ’s decision in all three of these areas hinged on his determination that Pedro’s evidence lacked credibility, a finding that we review in depth in the final portion of our discussion. A. Standards for Asylum, Withholding of Removal, and Relief Under the Convention Against Torture The IJ first rejected Torres’s petition for asylum. A petitioner for asylum bears the burden of proving that he is a “refugee” within the meaning of 8 U.S.C. § 1101(a)(42). See also 8 C.F.R. § 1208.13(a). Specifically, Torres must demonstrate that, because of his race, religion, nationality, membership in a particular social group, or political opinion, he either was the victim of past persecution or maintains a well-founded fear of future persecution. Oryakhil v. Mukasey, 528 F.3d 993, 998 (7th Cir.2008); see also 8 U.S.C. § 1101(a)(42); 8 C.F.R. § 1208.13(b). Even if an individual satisfies these requirements, he is not guaranteed asylum. Final asylum decisions rest in the discretion of the Attorney General or the Secretary of Homeland Security. Jun Ying Wang v. Gonzales, 445 F.3d 993, 997 (7th Cir.2006); see also 8 U.S.C. § 1158(b)(1)(A). The IJ also declined Torres’s second request, which was for withholding of" }, { "docid": "11816495", "title": "", "text": "credibility determination was not based on “specific, cogent reasons that bear a legitimate nexus to the findings,” Huang, 403 F.3d at 948 (internal quotation marks omitted), and was therefore in error. Accordingly, the decision to deny Torres’s petition for asylum, withholding of removal, and protection under the Convention Against Torture was not supported by substantial evidence. We Vacate the BIA’s order for voluntary departure and Remand for further proceedings in accordance with this opinion. As we have done on prior occasions, see, e.g., Huang, 403 F.3d at 951; Lin, 385 F.3d at 757-58; Georgis, 328 F.3d at 970; Kerciku v. INS, 314 F.3d 913, 919 (7th Cir.2003), we encourage the BIA to assign a different judge to this case on remand, cf. Circuit Rule 36 of the United States Court of Appeals for the Seventh Circuit. . The government argues that the IJ’s nexus finding was independent of its adverse credibility determination. It contends that the IJ found, first, that Torres’s evidence was incredible, and second, that Torres had not established the requisite nexus for a successful asylum claim. Careful reading of the IJ's opinion makes it clear that this was not the case. According to the opinion, Torres's inability to provide the nexus for his mistreat- menl was yet another reason the IJ concluded that Torres lacked credibility." }, { "docid": "22426737", "title": "", "text": "PAEZ, Circuit Judge. An immigration judge (“IJ”) denied petitioner Elmer Domingo Marcos asylum, 8 U.S.C. § 1158,,withholding of removal, 8 U.S.C. § 1231(b)(3), and relief under the Convention Against Torture (“CAT”), 8 C.F.R. § 208.16(c), after an administrative, hearing. The IJ found .that Marcos’s testimony lacked credibility, that the scenario of death threats he described did not rise to the level of persecution, and that Marcos’s fear of future persecution was undermined by changed country conditions in the Philippines. Marcos petitions for review of the Board of Immigration Appeals’ (“BIA”) decision affirming without opinion the IJ’s ruling. See 8 C.F.R. § 1003.1(e)(4) (2002). We have jurisdiction under 8 U.S.C. § 1252, and we review the IJ’s decision as the final agency determination. Singh v. Gonzales, 403 F.3d 1081, 1083 (9th Cir.2005). We hold that the IJ’s decision was not supported by substantial evidence, and we remand for further consideration in light of this opinion. I. Facts Marcos, a native and citizen of the Philippines, worked as a medical technician for the Red Cross in Laoag City in the Philippines from July 1979 to June 1996, when he fled to the United States. 'Marcos owned an amateur or “HAM” radio, and in 1984 he joined the Philippine military’s Civilian Home Defense Forces as a volunteer radio operator. He became vice-president of operations of the Regional Emergency Assistance Communication, Team. Over his radio, Marcos reported any sightings of New People’s Army (“NPA”) members to the Philippine military. Because the NPA knew the military’s radio frequency and could listen to their broadcasts, Marcos used a security code to identify himself to military officials while shielding his identity from the NPA. In 1988 and 1989, the NPA made general threats over the radio “stating that they were going to kill members of the Civilian Home Defense Forces .... ” In 1990, however, the NPA discovered Marcos’s name and identity when one of Marcos’s crew members lost his car, along with a list of radio operators’ names and security codes. Marcos then began re ceiving personal threats-, from the NPA over the radio. , He" }, { "docid": "23553447", "title": "", "text": "on the bench. Applying Romani, we hold that these circumstances do not constitute a failure to appear. Jerezano did appear but he was late; not so late, however, that the IJ (who was still hearing cases) could not have taken up the case at that time. It is accepted practice for courts to give tardy litigants a second chance by putting them at the end of the calendar, and it seems both harsh and unrealistic to treat as a nonappearance a litigant’s failure to be in the courtroom at the precise moment his case is called. While an IJ need not linger in the courtroom awaiting tardy litigants, so long as he is there on other business and the delay is short-as in this case-it is an abuse of discretion to treat a slightly late appearance as a nonappearance. Thus Jerezano has “never had [his] day in court to present [his] claims for asylum and withholding of deportation.” Id. at 739. The IJ should have either reopened or continued the proceeding after Jerezano arrived. The failure to do so unreasonably deprived Jere-zano of his due process right to a full and fair hearing. See Burgos-Abril v. INS, 58 F.3d 475, 476 (9th Cir.1995). Accordingly, the BIA erred in upholding the IJ’s denial of Jerezano’s motions to reopen. The Petition is GRANTED and the matter REMANDED to the BIA for remand to the IJ with direction that Jerezano be permitted to present his claims for asylum and withholding of deportation or, in the alternative, voluntary departure. Petition GRANTED and REMANDED with directions. . The Illegal Immigration Reform and Immigrant Responsibility Act of 1996 (\"IIRIRA”) repeals 8 U.S.C. § 1105a and replaces it with a new judicial review provision codified at 8 U.S.C. § 1252. See IIRIRA § 306(c)(1), Pub.L. No. 104-208, 110 Stat. 3009, 3009-612 (1996), as amended by Act of Oct. 11, 1996, Pub.L. No. 104-302, 110 Stat. 3656, 3657. The transitional rules under the IIRIRA apply to this case because deportation proceedings were initiated before April 1, 1997, but the BIA’s decision was entered after October 31, 1996. These" }, { "docid": "23349931", "title": "", "text": "TYMKOVICH, Circuit Judge. Miguel Angel Torres de la Cruz (Torres), a native and citizen of Mexico, was admitted into the United States as a lawful permanent resident on October 30, 1992: After an August 6,1999 state court conviction in Utah for possession of a controlled substance (cocaine), the then-immigration and Naturalization Service (INS) initiated removal proceedings against him in December 1999. He was found to have committed a removable offense and ordered removed. In this appeal, Torres asserts four claims: (1) his state conviction is not a controlled substance offense under the recent holding in Salinas v. United States, 547 U.S. 188, 126 S.Ct. 1675, 164 L.Ed.2d 364 (2006), and thus does not constitute a removable offense; (2) his state misdemeanor conviction for possession cannot constitute an aggravated felony within the meaning of the Immigration and Nationality Act (INA); (3) the immigration court’s interpretation of 8 U.S.C. § 1229b(d)(l), the so-called “stop-time” rule, violates his right to due process and equal protection; and (4) his removal proceedings violate the Vienna Convention and an INS regulation on consular notification rights. Lacking jurisdiction over Torres’s first two claims, we DISMISS them. While retaining jurisdiction over his remaining two claims, we find they lack merit, DENY the petition for review, and AFFIRM the order of removal. 1. Background and Procedural History This case began in December of 1999 when the INS charged that Torres was removable for committing an “aggravated felony” under 8 U.S.C. § 1227(a)(2)(A)(iii), and a “controlled substance” violation under 8 U.S.C. § 1227(a)(2)(B)(i), based on his Utah state guilty plea to simple possession of cocaine in August of 1999. During his removal hearings, the INS dropped the “aggravated felony” count as a basis for removal. On February 7, 2000, an immigration judge (IJ) found that Torres had a “controlled substance” conviction and was removable under § 1227(a)(2)(B)(i), determined that he was ineligible for cancellation of removal, and ordered him removed to Mexico. On appeal, the Board of Immigration Appeals (BIA) considered Torres’s challenges to the IJ decision and found them to be without merit in an order dated August 16," }, { "docid": "11816469", "title": "", "text": "the instigation of or with the consent or acquiescence of a public official or other person acting in an official capacity.” 8 C.F.R. § 208.18(a)(1). The IJ in this case declined Torres’s request for relief under the Convention Against Torture. B. The IJ’s Adverse Credibility Determination The IJ rejected all three of Torres’s claims — for asylum, withholding of removal, and protection under the Convention Against Torture — solely because the IJ found that Torres’s evidence lacked credibility. One of an immigration judge’s primary functions is to assess the credibility of an applicant’s evidence. Capric, 355 F.3d at 1085. When making a credibility determination, an IJ evaluates the applicant’s claims “only for internal consistency, detail, and plausibility.” Id. The IJ’s credibility finding is often paramount “[b]e-cause direct authentication or verification of an alien’s testimony and/or evidence is typically very difficult and often impossible.” Id. In lieu of direct evidence, an alien’s credible testimony, by itself, is generally sufficient to sustain the alien’s burden of proof. Lin v. Ashcroft, 385 F.3d 748, 756 (7th Cir.2004); Uwase v. Ashcroft, 349 F.3d 1039, 1041 (7th Cir.2003); see also 8 C.F.R. § 208.13(a). If the IJ finds an alien’s testimony to be incredible, however, then the alien must provide either a convincing explanation for the noted discrepancies in his evidence or credible evidence that corroborates his claims. Capric, 355 F.3d at 1086. If the IJ’s credibility determination is supported by “specific, cogent reasons that bear a legitimate nexus to the finding,” then this court will be highly deferential in its review of that conclusion. Capric, 355 F.3d at 1086 (internal quotation marks omitted); see also Hysi v. Gonzales, 411 F.3d 847, 852 (7th Cir.2005) (“We give great deference to an IJ’s credibility determinations so long as they are supported by cogent reasons that bear a legitimate nexus to the finding.” (emphasis added)); Ahmad v. INS, 163 F.3d 457, 461 (7th Cir.1999). We will not, however, “defer to credibility determinations drawn from insufficient or incomplete evidence, nor shall we uphold adverse credibility determinations based on speculation or conjecture, rather than on evidence in the record.”" }, { "docid": "22786837", "title": "", "text": "D.W. NELSON, Senior Circuit Judge: Afroza and Khandker Hasan, husband and wife, and native citizens of Bangladesh, petition for review of the Board of Immigration Appeals’ denial of their requests for asylum, withholding of removal, and protection under the Convention Against Torture (“CAT”). The Immigration Judge (“IJ”) found that the Hasans had failed to establish that their past persecution was on account of an enumerated ground, and therefore dismissed their claims for asylum and withholding of removal. The IJ also found that the Hasans had failed to establish that, upon their return to Bangladesh, they were more likely than not to experience torture with the consent or approval of government officials acting in their official capacity, and therefore, denied them relief under CAT. The Board of Immigration Appeals (“BIA”) affirmed the decision of the IJ without opinion. We have jurisdiction pursuant to the Immigration and Nationality Act (“INA”) § 242(a)(1), 8 U.S.C. § 1252(a)(1). We find that substantial evidence supported the IJ’s conclusion that the Hasans had not established eligibility for CAT relief. However, the IJ erred in concluding that the Hasans had not established that their past persecution was on account of political opinion. Accordingly, we grant the petition for review and reverse and remand to the BIA for further proceedings consistent with this opinion. I. Factual and Procedural History The following facts are drawn from the Hasans’ testimony at their asylum hearing, as well as their written application for asylum. Because the IJ did not make an adverse credibility finding, we accept the Hasans’ testimony as true. See Damon v. Ashcroft, 360 F.3d 1084, 1086 n. 2 (9th Cir.2004). A. The Hasans’ Experiences in Bangladesh Afroza Hasan (hereinafter “Afroza,” in order to distinguish her from her husband “Khandker”), the lead petitioner, worked as a reporter for Purnima, a local newspaper in Bangladesh. She primarily reported on women’s issues in the region in which she lived. Afroza was a member of the Bangladesh Nationalist Party (“BNP”), one of Bangladesh’s major political parties. She was also a member of Mohila Parish-ad, a women’s organization that served distressed women in the" }, { "docid": "22711770", "title": "", "text": "Opinion by Judge WALLACE; Concurrence by Judge McKEOWN WALLACE, Senior Circuit Judge. Dagoberto Lara-Torres and Erika Lara-Perez (together Petitioners) timely petitioned for review of three Board of Immigration Appeals (Board) decisions which have since been consolidated before us. We have jurisdiction pursuant to 8 U.S.C. § 1252, and we deny the petitions. I. Although the accuracy of the following account might be disputed, for this proceeding we portray the background facts as Petitioners do. Lara-Torres entered the United States from Mexico on June 2, 1988, without being admitted or paroled. Lara-Perez arrived on September 27 of the following year, also crossing into the United States without being admitted. The two, both natives and citizens of Mexico, were married in the United States and have a daughter with United States citizenship. They apparently concealed their illegal immigrant status from United States immigration officials until the following events unfolded. In January of 1997, Lara-Torres found his way to the law office of Walter Pineda in search of immigration advice. When he inquired about his options for securing permanent legal residence in the United States, Pineda informed him that an asylum application was one possibility. If the Immigration and Naturalization Service (INS) were to deny Lara-Torres’s asylum application, an Immigration Judge (IJ) would consider the application at a subsequent hearing to determine if Lara-Torres must depart the United States. An additional category of relief would be available to Lara-Torres at that time, the exact form of which depended on whether he was placed in immigration proceedings before April 1, 1997, or after. April 1 was significant, Pineda explained, because on that day, recent eongressidnal alterations to United States immigration provisions would become law. Accordingly, if the INS commenced a “deportation” action prior to April 1 by filing an “Order to Show Cause,” Lara-Torres’s accrual of seven years “continuous physical presence” in the United States would make him eligible for “suspension of deportation.” On the other hand, if the INS sought to have him “removed” after April 1, 1997, Lara-Torres could seek “cancellation of removal,” but only upon accumulating ten years physical presence. According" }, { "docid": "11816494", "title": "", "text": "and began to trust her did he come forward with the additional information. The IJ chose to disregard these explanations. The IJ, without additional justification, said only that “the respondent could not offer any persuasive reason as to why he had not detailed [these events] in his affidavit.” (R. at 82.) In reviewing this conclusion, we return to our earlier finding that the IJ’s conduct during the hearing tainted his analysis. Applying that finding to this situation, we conclude that the IJ’s opinion that these explanations were unpersuasive is incurably tainted by his improper conduct during the hearing and prejudiced by his continued reliance on facts either immaterial to Torres’s claims or derived from the ether of the IJ’s imagination. See Huang, 403 F.3d at 950-51. Although we will generally defer to the weight an IJ gives to a proffered explanation, see Georgis, 328 F.3d at 970, we will not do so when the IJ’s own conduct and flawed analysis serve to make the finding itself wholly unreliable. III. Conclusion We conclude that the IJ’s credibility determination was not based on “specific, cogent reasons that bear a legitimate nexus to the findings,” Huang, 403 F.3d at 948 (internal quotation marks omitted), and was therefore in error. Accordingly, the decision to deny Torres’s petition for asylum, withholding of removal, and protection under the Convention Against Torture was not supported by substantial evidence. We Vacate the BIA’s order for voluntary departure and Remand for further proceedings in accordance with this opinion. As we have done on prior occasions, see, e.g., Huang, 403 F.3d at 951; Lin, 385 F.3d at 757-58; Georgis, 328 F.3d at 970; Kerciku v. INS, 314 F.3d 913, 919 (7th Cir.2003), we encourage the BIA to assign a different judge to this case on remand, cf. Circuit Rule 36 of the United States Court of Appeals for the Seventh Circuit. . The government argues that the IJ’s nexus finding was independent of its adverse credibility determination. It contends that the IJ found, first, that Torres’s evidence was incredible, and second, that Torres had not established the requisite nexus for" }, { "docid": "4444579", "title": "", "text": "CALABRESI, Circuit Judge: Gilberto William Gomez-Beleno and Sandra Avila-Gaviria (collectively “the Petitioners”) successfully sought review by this Court of a final order of removal. They now move for costs and fees under the Equal Access to Justice Act (“EAJA”), 28 U.S.C. § 2412(d). The Government opposes the motion, arguing that the Petitioners are not entitled to a fee award on the ground that the “position of the United States was substantially justified.” Id. § 2412(d)(1)(A). We find that the position of the United States was not substantially justified. We therefore grant the Petitioners’ motion and award them $9,690.00 in fees and $751.04 in costs. PROCEDURAL BACKGROUND I. Application for Relief The Petitioners are natives and citizens of Colombia. They entered the United States in September 2001, as nonimmigrant visitors with authorization to remain for three months. On May 7, 2002, Gomez-Beleno, along with Avila-Gaviria as a derivative applicant, filed an application for asylum, withholding of removal, and protection under the Convention Against Torture (“CAT”). In his application, Gomez-Beleno alleged that in March 2000, while working for a mining company in Colombia, he began receiving phone calls from individuals identifying themselves as members of the Fuerzas Armadas Revolucionarias de Colombia (the “FARC”). These individuals, he asserted, pressured him to leave his job, join the FARC, and provide the organization with information about his employer. He further asserted that, having refused these overtures, he was repeatedly threatened and harassed by individuals claiming allegiance to the FARC. Among other things, he alleged that these individuals assaulted him, made intimidating phone calls to him and his family, and sent him a written death threat, known in Colombia as a “sufragio.” After a hearing on September 4, 2002, an Immigration Judge (“IJ”) denied the application for relief. The IJ found that Gomez-Beleno’s testimony, “while consistent internally and consistent with [his wife’s testimony], was not plausible and was not believable.” The IJ further found that the testimony, even if credible, did not “demonstrate that [the Petitioners] have suffered persecution in a manner, which would warrant an award of asylum or other relief in this case.” That" }, { "docid": "9347479", "title": "", "text": "Petition for review granted; remanded for further proceedings by published opinion. Judge Keenan wrote the opinion, in which Judge Motz and Judge Thacker joined. BARBARA MILANO KEENAN, Circuit Judge: Luz Marina Cantillano Cruz (Cantillano Cruz), a citizen of Honduras, petitions for review of a final order of removal entered by the Board of Immigration Appeals (BIA). The BIA affirmed an immigration judge’s (IJ) conclusion that Cantillano Cruz was not eligible for asylum, withholding of removal, or protection under the Convention Against Torture (CAT). Cantil-lano Cruz argued before the BIA and IJ that she feared persecution on account of her nuclear family ties to her husband Johnny Martinez (Martinez), whom she suspected had been murdered by his employer. The BIA and IJ rejected this argument and determined that any persecution suffered by Cantillano Cruz occurred because she had threatened to report the employer to the police, an act that did not qualify as a basis for her requested relief. Upon our review, we conclude that Can-tillano Cruz’s familial relationship with Martinez necessarily was one central reason for the persecution and fear of future persecution established by Cantillano Cruz, thereby meeting the statutory “nexus requirement” for asylum provided in the Immigration and Nationality Act (INA) in 8 U.S.C. § 1168(b)(1)(B)®. Accordingly, we grant Cruz’s petition and remand her case to the BIA for further proceedings. I. In July 2014, Cantillano Cruz and her minor son entered the United States without authorization and presented themselves to immigration officials to request asylum. Several days later, the Department of Homeland Security (DHS) served Cantillano Cruz with a notice to appear charging her as an alien present in the United States without admission, under the provisions of 8 U.S.C. § 1182(a)(6)(A)(i). Cantillano Cruz conceded removability but filed applications for asylum, withholding of removal, and protection under the CAT. At a hearing before the IJ, Cantillano Cruz claimed past persecution and fear of future persecution based on her membership in a “particular social group,” namely, the “nuclear family of Johnny Martinez.” See 8 U.S.C. §§ 1158(b)(1)(A), 1231(b)(3)(A). She testified and presented other evidence in support of her" }, { "docid": "11816454", "title": "", "text": "the IJ’s credibility determination was tainted due to the IJ’s improper conduct during the hearings and that there was not substantial evidence to support the IJ’s conclusions. We vacate the decisions of the BIA and IJ and remand for further proceedings. I. History Pedro Flores Torres entered the United States without inspection in October 2003 and submitted a written application for asylum and withholding of removal one year later. In December 2004, the Department of Homeland Security charged Torres with being removable as an unad-mitted alien pursuant to 8 U.S.C. § 1182(a)(6)(A)(i). At a series of immigration hearings held in April and May 2006, Torres admitted he was removable but renewed his requests for asylum and withholding of removal, as well as relief under the Convention Against Torture. Torres’s written application, accompanying affidavits, and testimony by Torres and his brother Juan Carlos provide the following facts. A. The Flores Torres Family From 1959 to 1979, Guadalupe Torres gave birth to eight children in Comayagua, a village in Honduras. Five of these children were boys. The oldest son, Mario Noe, was born in 1959. The next three sons — Luis Elias, Gerardo Isaac, and Juan Carlos — were born in 1962, 1969, and 1977, respectively. The youngest child, Pedro Alfredo, is the petitioner in this matter and was born in 1979. The children’s father left the family shortly after Pedro’s birth. Pedro’s four older brothers were conscripted into the Honduran navy, where each spent at least some time at the naval base in Amapala, near the El Salvadoran border. While serving, each of the four older sons endured brutal mistreatment at the hands of his superiors. Three of the four ultimately deserted the navy to escape these abuses. Because Pedro’s claims are based largely on his brothers’ experiences within the Honduran military, those experiences merit some discussion. Mario is the only Torres son not considered a military deserter. Mario served for approximately one year, during which time his arm was broken and his ear punctured, resulting in permanent hearing damage. He escaped, only to be captured and put back into active" }, { "docid": "11816453", "title": "", "text": "KANNE, Circuit Judge. Pedro Flores Torres, a native and citizen of Honduras, seeks asylum, withholding of removal, and relief under the Convention Against Torture. Torres claims that he was persecuted while a soldier in the Honduran army because of his membership in a social group — namely, his family, which included four older brothers, three of whom were military deserters. Torres asserts that he was tortured and abused as punishment for his brothers’ actions. On May 31, 2006, Immigration Judge Carlos Cuevas declined Torres’s primary requests for asylum, withholding of removal, and protection under the Convention Against Torture, granting instead his alternative prayer for voluntary departure. The IJ found that Torres lacked credibility because of, first, inconsistencies and omissions in Torres’s written application for asylum and his testimony at a series of immigration hearings, and second, Torres’s inability to establish the requisite nexus between Torres’s mistreatment and his family’s unfavorable reputation in the Honduran military. The Board of Immigration Appeals summarily affirmed the IJ’s decision in an order issued February 15, 2008. We find that the IJ’s credibility determination was tainted due to the IJ’s improper conduct during the hearings and that there was not substantial evidence to support the IJ’s conclusions. We vacate the decisions of the BIA and IJ and remand for further proceedings. I. History Pedro Flores Torres entered the United States without inspection in October 2003 and submitted a written application for asylum and withholding of removal one year later. In December 2004, the Department of Homeland Security charged Torres with being removable as an unad-mitted alien pursuant to 8 U.S.C. § 1182(a)(6)(A)(i). At a series of immigration hearings held in April and May 2006, Torres admitted he was removable but renewed his requests for asylum and withholding of removal, as well as relief under the Convention Against Torture. Torres’s written application, accompanying affidavits, and testimony by Torres and his brother Juan Carlos provide the following facts. A. The Flores Torres Family From 1959 to 1979, Guadalupe Torres gave birth to eight children in Comayagua, a village in Honduras. Five of these children were boys. The" }, { "docid": "22200969", "title": "", "text": "PER CURIAM. We consider here whether a Court of Appeals possesses jurisdiction to review the decision of an immigration judge to deny a motion for a continuance filed during an immigration proceeding. Petitioner Rasaq Opyemi Sanusi, a native and citizen of Nigeria, seeks review of a February 26, 2001 order of the Board of Immigration Appeals (“BIA”) dismissing his appeal of a decision by Immigration Judge (“IJ”) Donn Livingston denying Sanusi’s request for relief under the United Nations Convention Against Torture (“CAT”). See In re Sanusi, Order and Oral Decision of the Immigration Judge, File No. [ AXX XXX XXX ] (Jamaica, NY, Mar. 16, 2000). Sanusi argues that the IJ made two errors, each of which was affirmed by the BIA. First, Sanusi argues that the IJ should have granted him relief under the CAT, stating that the IJ applied the wrong legal standard and incorrectly found Sanusi’s testimony not to be credible. Second, Sanusi contends that the IJ erred in denying Sanusi’s motion for a continuance, which he requested so that he might acquire additional medical evidence in support of his CAT claim. In addition, Sanusi argues that the BIA erred when it refused to remand Sanusi’s case to the IJ for further proceedings to consider newly available evidence. We conclude that Sanusi’s arguments are without merit and, accordingly, we deny the petition for review. Background Sanusi originally applied for asylum and for withholding of removal under sections 208(a) and 241(b)(3) of the Immigration and Naturalization Act of 1952 (“INA”), as amended, 8 U.S.C. §§ 1158(a), 1231(b)(3). The IJ denied Sanusi’s application for asylum and for withholding of removal under the INA on March 23, 1998 and ordered Sanusi removed. Sanusi declined to appeal, thereby waiving any claims of error he might have had before this Court. See 8 U.S.C. § 1252(d)(1) (“A court may review a final order of removal only if ... the alien has exhausted all administrative remedies available to the alien as of right[.]”); Foster v. INS, 376 F.3d 75, 77 (2d Cir.2004) (“[Fjailure to exhaust [these remedies] constitutes a clear jurisdictional bar.” (internal" }, { "docid": "11816464", "title": "", "text": "visit with his mother, whom the military had prevented Pedro from seeing during his time in the army, Pedro began his journey north to seek refuge with his family in the United States. He now lives near his brother and two sisters in Elk-hart. C. Prior Decisions by the Immigration Judge and the Board of Immigration Appeals Immigration Judge Cuevas held a series of three hearings on April 19, April 25, and May 31, 2006. The IJ played an active role in the hearings, frequently interjecting himself into the testimony. At the conclusion of the proceedings, the IJ issued an oral decision denying Pedro’s requests for asylum, withholding of removal, and protection under the Convention Against Torture. The IJ based his decision on what he found to be Pedro’s lack of credibility. The IJ granted Pedro’s alternative request for voluntary departure. The BIA summarily affirmed the IJ’s decision in a written opinion issued on February 15, 2008. II. Analysis An IJ’s decision to deny a petition for asylum and withholding of removal is a finding of fact that we review for substantial evidence. Capric v. Ashcroft, 355 F.3d 1075, 1086 (7th Cir.2004). We must affirm the immigration court’s decision if it is supported by “reasonable, substantial, and probative evidence on the record considered as a whole.” INS v. Elias-Zacarias, 502 U.S. 478, 481, 112 S.Ct. 812, 117 L.Ed.2d 38 (1992) (internal quotation marks omitted). We will reverse only if the evidence “ ‘compels [a] contrary conclusion.’ ” Ciorba v. Ashcroft, 323 F.3d 539, 544 (7th Cir.2003) (quoting Bradvica v. INS, 128 F.3d 1009, 1012 (7th Cir.1997)). When, as here, the BIA adopts the reasoning of the IJ, we review the IJ’s decision under this deferential standard. Ursachi v. INS, 296 F.3d 592, 594 (7th Cir.2002). In this case, Torres pursued three alternative paths to avoid removal from the United States: asylum, withholding of removal, and protection under the Convention Against Torture. Below, we first discuss the standards for these claims. The IJ’s decision in all three of these areas hinged on his determination that Pedro’s evidence lacked credibility, a finding" }, { "docid": "22336120", "title": "", "text": "8 U.S.C. § 1252(d)(1). “We have recognized that neglecting to take an appeal to the BIA constitutes a failure to exhaust administrative remedies as to any issue that could have been raised, negating the jurisdiction necessary for subsequent judicial review.” Torres de la Cruz v. Maurer, 483 F.3d 1013, 1017 (10th Cir.2007) (internal quotation omitted). Accordingly, we generally assert jurisdiction only over those arguments that a petitioner properly presents to the BIA. In this case, the government argues that petitioners failed to exhaust their administrative remedies because they did not challenge the IJ’s denial of their restriction on removal and CAT application — the basis of this petition for review-before the BIA. The government contends that we therefore do not have jurisdiction to consider this petition. In their notice of appeal and brief before the BIA, Sidabutar and Ringo assert multiple claims against the IJ’s determination that they were ineligible for political asylum based on their failure to meet the one-year filing deadline under 8 U.S.C. § 1158(a)(2)(B). See Admin. R. at 72-89, 132-35. Neither their notice of appeal nor their brief, however, indicated a challenge to the IJ’s decision to deny them restriction on removal or protection under the CAT. Ordinarily, we would hold the petitioners’ failure to present these two issues to the BIA was a failure to exhaust administrative remedies, Torres de la Cruz, supra, precluding our review. Nevertheless, in this case, the BIA sua sponte addressed and ruled on both the restriction on removal and CAT claim. In its August 2, 2006 decision, the BIA “adopt[ed] and affirm[ed]” the IJ’s entire March 11, 2005 decision. Admin. R. at 2. After agreeing with the IJ’s conclusion that Sidabutar was not eligible for asylum, the BIA “concurred” with the IJ that (1) Sidabutar failed to show “past persecution” or a clear probability that his life or freedom would be threatened if returned to Indonesia, negating his claim for restriction on removal; and (2) Sidabutar did not establish that he was more likely than not to be tortured by, or with the acquiescence of, the Indonesian government, to gain" }, { "docid": "22682653", "title": "", "text": "GOULD, Circuit Judge: Jorge Arturo Soto-Olarte and his wife Maria Jesus Esteves-La Torre petition for review of the Board of Immigration Appeals’ (“BIA”) opinion dismissing then-appeal of an immigration judge’s (“IJ”) denial of their petitions for asylum, withholding of removal, and protection under the United Nations Convention Against Torture (“CAT”). We grant the petition for review and remand this case to the BIA for further proceedings, but we hold that on remand the BIA need not necessarily deem Soto-Olarte credible. I Jorge Arturo Soto-Olarte (“Soto-Olarte”), and his wife Maria Esteves-La Torre (“La Torre”), natives and citizens of Peru, sought asylum and withholding of removal based on alleged persecution by the terrorist organization Shining Path. The incident central to Soto-Olarte’s claim occurred on June 19, 2008. According to Soto-Olarte’s testimony, two members of the Shining Path broke into his house in Peru, while two other Shining Path members remained outside. Soto-Olarte fired his gun in the air, triggering his car alarm, and the four individuals fled. Soto-Olarte submitted a police report mentioning this incident, but the report as produced by the police differs from Soto-Olarte’s account of the incident. The police report stated that Soto-Olarte was awakened by his car alarm, and when he went outside two security guards told him they saw two individuals fleeing over the wall. The report said nothing about two other people entering Soto-Olarte’s house, about a gun being fired, or about any involvement by the Shining Path. Finally, the police report recited that Soto-Olarte had said items were stolen from his car, while Soto-Olarte’s own account in his testimony and in his declaration mentions no property loss. Soto-Olarte and La Torre were charged as removable in 2004. They conceded re-movability but sought relief in the form of asylum, withholding of removal, and protection under the CAT. At the IJ hearing Soto-Olarte’s direct examination testimony focused on the June 2003 incident. Neither the government nor the IJ asked Soto-Olarte about the contents of the police report. Before testifying, in a written declaration filed with the immigration court, Soto-Olarte had explained that the police report did not" }, { "docid": "23025365", "title": "", "text": "LEAVY, Circuit Judge. Ferida Kasnecovic, a nátive and citizen of Yugoslavia, petitions for review of a final order of the Board of Immigration Appeals (BIA) denying her applications for asylum, withholding of removal, and relief under the United Nations Convention Against Torture (CAT). An Immigration Judge (IJ) found that Kasneeovic’s asylum application was untimely and that Kasne-covic did not establish extraordinary circumstances to excuse that untimeliness. See 8 U.S.C. § 1158(a)(2)(B), (D) (2000). As an alternative finding, the IJ denied Kasnecovie’s asylum claim on the merits, based on an adverse credibility determination. Finally, the IJ denied Kasnecovic’s petitions for withholding of removal and CAT relief. We have jurisdiction over the petition under 8 U.S.C. § 1252(a)(1). Because substantial evidence supports the IJ’s adverse credibility determination, we deny the petition as to the withholding of removal and CAT claims and dismiss the petition as to the asylum claim. STANDARD OF REVIEW We review the BIA’s decision to determine whether it is “supported by reasonable, substantial, and probative evidence on the record considered as a whole.” INS v. Elias-Zacarias, 502 U.S. 478, 481, 112 S.Ct. 812, 117 L.Ed.2d 38 (1992) (citation omitted). Where the BIA affirms an IJ’s order without opinion, we review the IJ’s order as the final agency action. Kebede v. Ashcroft, 366 F.3d 808, 809 (9th Cir.2004). Factual findings underlying the IJ’s order are reviewed for substantial evidence. Gormley v. Ashcroft, 364 F.3d 1172, 1176 (9th Cir.2004). FACTS AND PRIOR PROCEEDINGS Kasnecovic entered the United States on December 22, 1998. At the time of entry she told the Immigration and Naturalization Service (INS) interviewer that she was born in Montenegro, Yugoslavia, and gave a specific location, including a zip code equivalent, as her permanent residence in Montenegro. She also told the interviewer that she had two relatives in the United States, an aunt, Osman Kalivo-ri, who lived in Staten Island, New York, and a sister, Dija Kasnecovic, living in Queens, New York. In December 1999, Kasnecovic applied for Temporary Protected Status (TPS), stating that she was born in Kosovo, Yugoslavia, and was a national of Kosovo Province. The INS" }, { "docid": "22755828", "title": "", "text": "BEEZER, Circuit Judge: We consider whether Petitioners are entitled to a rescission of deportation orders entered in absentia. I Petitioners are natives and citizens of Fiji who entered the United States without inspection. After the Immigration and Naturalization Service (“INS”) issued an order to show cause why Petitioners should not be deported, Petitioners appeared before an Immigration Judge (“IJ”) and conceded deport-ability. A December 5, 1994 hearing was set to consider Petitioners’ applications for asylum. Petitioners were informed, orally and in writing, that they would be deported if they did not appear for the hearing. The IJ specifically stated that he did not anticipate granting any continuances, and would pro- eeed in absentia if Petitioners did not appear. Petitioners arrived at the deportation hearing between 45 minutes and 1 hour late due to traffic congestion and trouble finding parking. Pursuant to § 242B of the Immigration and Nationality Act, 8 U.S.C. § 1252b(c)(l), the IJ held the hearing in ab-sentia. The IJ found the Petitioners deport-able. He also found that Petitioners had abandoned any applications for relief from deportation, and ordered Petitioners deported to Fiji. Both the IJ and the BIA denied Petitioners’ motions to reopen, and Petitioners timely filed petitions for review. II The denial of a motion to reopen is reviewed for abuse of discretion. INS v. Doherty, 502 U.S. 314, 324, 112 S.Ct. 719, 725, 116 L.Ed.2d 823 (1992). The BIA’s factual findings are reviewed for substantial evidence. Ghaly v. INS, 58 F.3d 1425, 1429 (9th Cir.1995). We review de novo the BIA’s determination of purely legal questions, including the BIA’s interpretation of the Immigration and Nationality Act. Bui v. INS, 76 F.3d 268, 269 (9th Cir.1996). Claims that Petitioners’ due process rights were violated by the deportation proceedings also are reviewed de novo. Burgos-Abril v. INS, 58 F.3d 475, 476 (9th Cir.1995). III An order of deportation entered in absentia may be rescinded only if Petitioners demonstrate that they failed to appear because of exceptional circumstances. 8 U.S.C. § 1252b(c)(3). Exceptional circumstances are defined as “circumstances (such as serious illness of the alien or death of" } ]

[ { "docid": "22198510", "title": "", "text": "Department of Health & Human Services, 983 F.2d 815, 817-18 (7th Cir.1993). The district court agreed, holding that it would not consider evidence which was not before the ALJ, that it would not remand the case for the Secretary to consider the new evidence, and that the final decision was supported by substantial evidence. This appeal followed. We review the Secretary’s decision to determine whether the factual findings are supported by substantial evidence and whether correct legal standards were applied. Castellano v. Secretary of Health & Human Servs., 26 F.3d 1027, 1028 (10th Cir.1994). Substantial evidence is ‘“such relevant evidence as a reasonable mind might accept as adequate to support a conclusion.’ ” Richardson v. Perales, 402 U.S. 389, 401, 91 S.Ct. 1420, 1427, 28 L.Ed.2d 842 (1971) (quoting Consolidated Edison Co. v. NLRB, 305 U.S. 197, 229, 59 S.Ct. 206, 216-17, 83 L.Ed. 126 (1938)). Evidence is insubstantial if it is overwhelmingly contradicted by other evidence. Frey v. Bowen, 816 F.2d 508, 512 (10th Cir.1987). Claimant argues that the district court erred in refusing to consider the evidence first submitted to the Appeals Council when reviewing the Secretary’s final decision for substantial evidence. She contends that because the new evidence contradicted the ALJ’s finding that she did not suffer from a knee impairment during her insured period, the Secretary’s decision is not supported by substantial evidence. Social security regulation 20 C.F.R. § 404.970(b) expressly authorizes a claimant to submit new and material evidence to the Appeals Council when seeking review of the ALJ’s decision. If the evidence relates to the period on or before the date of the decision, the Appeals Council “shall evaluate the entire record including the new and material evidence submitted ... [and] then review the case if it finds that the administrative law judge’s action, findings, or conclusion is contrary to the weight of the evidence currently of record.” Id. A claimant need not show “good cause” before submitting the new evidence to the Appeals Council. See id.; Wilkins v. Secretary, Dep’t of Health & Human Servs., 953 F.2d 93, 96 n. 3 (4th Cir.1991)." } ]

[ { "docid": "22161535", "title": "", "text": "whether existing evidence is substantial, we consider “evidence that detracts from the Commissioner’s decision as well as evidence that supports it.” Warburton v. Apfel, 188 F.3d 1047, 1050 (8th Cir.1999). We first determine the effect of the evidence submitted to the Appeals Council. The regulations provide that the Appeals Council must evaluate the entire record, including any new and material evidence that relates to the period before the date of the ALJ’s decision. See 20 C.F.R. § 404.970(b). The newly submitted evidence thus becomes part of the “administrative record,” even though the evidence was not originally included in the ALJ’s record. See Nelson v. Sullivan, 966 F.2d 363, 366 (8th Cir.1992). If the Appeals Council finds that the ALJ’s actions, findings, or conclusions are contrary to the weight of the evidence, including the new evidence, it will review the case. See 20 C.F.R. § 404.970(b). Here, the Appeals Council denied review, finding that the new evidence was either not material or did not detract from the ALJ’s conclusion. In these circumstances, we do not evaluate the Appeals Council’s decision to deny review, but rather we determine whether the record as a whole, including the new evidence, supports the ALJ’s determination. See Nelson, 966 F.2d at 366. We review the action under the Commissioner’s familiar sequential process. Under the regulations, the disability determination involves a step-by-step analysis of a claimant’s current work activity; the severity of his or her impairments; and an assessment of the claimant’s residual functional capacity in light of his or her age, education and work experience. See 20 C.F.R. § 404.1520(a); Braswell v. Heckler, 733 F.2d 531, 533 (8th Cir.1984). If the claimant suffers from an impairment that is either included in, or equal to, an impairment listed in the Commissioner’s itemization of presumptively disabling impairments (the Listings), the claimant will be determined disabled without consideration of his or her age, education, or work experience. See Braswell, 733 F.2d at 533. If the Commissioner finds that the claimant does not have an impairment that meets the Listings, the Commissioner next considers the claimant’s residual functional capacity and" }, { "docid": "14978725", "title": "", "text": "part-time or fill-in employee, although the number of hours that she has worked are minimal. She had no reported income in 1992, 1994, or 1995, $427 .52 in 1993, and $2572.00 in 1996, when she worked as a temporary “fill in” dishwasher. On August 28, 1992, Hutsell filed an application for disability benefits, alleging an onset date of October 31, 1990. Hutsell asserts that she is unable to work because of a nervous breakdown and mental problems. The Social Security Administration denied Hutsell’s application initially and again on reconsideration. Hutsell then requested and received a hearing before an administrative law judge (ALJ). The ALJ denied benefits in 1994, and Hutsell appealed the decision to the Appeals Council, which remanded the case. In 1996, an ALJ again denied Hutsell benefits, and again the Appeals Council remanded. After a third hearing, an ALJ issued an opinion on May 28, 1998, again denying benefits. The ALJ evaluated Hutsell’s claim according to the five-step sequential analysis prescribed by the social security regulations. See 20 C.F.R. §§ 404.1520(a) — (f); see also Bowen v. Yuckert, 482 U.S. 137, 140-42, 107 S.Ct. 2287, 96 L.Ed.2d 119 (1987) (describing analysis). At the first three steps of the analysis, the ALJ found that Hutsell had not engaged in substantial gainful activity since her onset date; that she suffered from chronic schizophrenia disoi'der, controlled with medication; possible bipolar disorder, controlled with medication; and borderline intellectual functioning; and that she had severe impairments that did not meet or equal a listed impairment. Although the ALJ completed a Psychiatric Review Technique Form (PRTF), the determination of Hutsell’s residual functional capacity was based not on the updated medical evidence but on the 1996 ALJ decision, which found Hutsell to be only slightly impaired because “the longitudinal record establishes that the claimant has function[ed] well despite many types of stresses related to family illness, family death, death of friends, 2 adjudication hearings in this matter, illness of an adult child, and adolescent [sic] of a dependent child.... ” At the fourth step of analysis, the ALJ determined that Hutsell has the capacity for" }, { "docid": "4397945", "title": "", "text": "failed to consider it. The record shows that Box’s weight was between 240 and 287 pounds during the period for which he seeks benefits. Box did not claim a disability based on obesity in his application for benefits or at the administrative hearing. There is in fact no evidence in the record that his obesity imposed any limitations on his ability to work. There was no testimony at the hearing or medical evidence submitted regarding limitations imposed by his weight. Instead, the record shows that Box had a sixteen year work history in spite of his weight and that he felt he could return to work but for his pain. In light of the evidence in the record, the fact that the Secretary’s decision does not discuss obesity as an impairment is not fatal. The conclusion that Box’s obesity was not an additional impairment under listing 12.05C is supported by substantial evidence. Box also claims that the Appeals Council failed to consider his newly submitted evidence of mental disorders, hypertension, and lower I.Q. scores, and requests a remand for reconsideration. The Secretary’s regulations provide: If new and material evidence is submitted, the Appeals Council shall consider the additional evidence only where it relates to the period on or before the date of the administrative law judge hearing decision. The Appeals Council shall evaluate the entire record including the new and material evidence submitted if it relates to the period on or before the date of the administrative law judge hearing decision. It will then review the case if it finds that the administrative law judge’s action, findings, or conclusion is contrary to the weight of the evidence currently of record. 20 C.F.R. § 404.970(b). This means that the Appeals Council must consider evidence submitted with a request for review “if the additional evidence is (a) new, (b) material, and (c) relates to the period on or before the date of the ALJ’s decision.” Williams v. Sullivan, 905 F.2d 214, 216-17 (8th Cir.1990). Its failure to do so may be a basis for remand by a reviewing court. Id. Whether the" }, { "docid": "23030809", "title": "", "text": "Id. at 398-99. Mr. Krauser argues that in light of this new evidence, submitted to and considered by the Appeals Council, he had either established a medically determinable mental impairment or at least demonstrated the existence of an issue that required further development. Because of the circumstances of its admission, the proper treatment of this evidence is somewhat unclear, as it implicates a potential tension in our case law. The basic principle, derived from the relevant regulations, is well-established: the Appeals Council must consider additional evidence offered on administrative review-after which it becomes a part of our record on judicial review — if it is (1) new, (2) material, and (3) related to the period on or before the date of the ALJ’s decision. Chambers v. Barnhart, 389 F.3d 1139, 1142 (10th Cir.2004) (discussing 20 C.F.R. §§ 404.970(b), 416.1470(b)). If the evidence does not qualify, the Appeals Council does not consider it and it plays no role in judicial review. Id. Here, the district court held that the new evidence submitted to the Appeals Council failed to satisfy the third requirement because it “pertained to dates after the ALJ’s final decision,” and, therefore, “cannot be given merit in evaluating plaintiffs alleged mental impairment.” App. Vol. 1 at 43. This ruling begs the question: who decides whether evidence qualifies as new, material, and related to the relevant period? One fine of our cases suggests that we do: we have repeatedly held that whether evidence is “new, material and chronologically pertinent is a question of law subject to our de novo review.” Threet v. Barnhart, 353 F.3d 1185, 1191 (10th Cir.2003); see Chambers, 389 F.3d at 1142. But we have also held that when the Appeals Council accepts additional evidence, that is “an implicit determination [that it is] ... qualifying new evidence,” requiring the Appeals Council to consider it and this court to include it in our review of the ALJ’s decision, without separate consideration of the requirements for qualification. Martinez v. Barnhart, 444 F.3d 1201, 1207-08 (10th Cir.2006); Hill v. Astrue, 289 Fed.Appx. 289, 293 (10th Cir.2008); Foy v. Barnhart, 139" }, { "docid": "7191465", "title": "", "text": "Plaintiff brings the instant action seeking a reversal of defendant’s decision. II. STANDARD OF REVIEW The court’s standard of review is set forth in 42 U.S.C. § 405(g), which provides that “[t]he findings of the Commissioner of Social Security as to any fact, if supported by substantial evidence, shall be conclusive .... ” Substantial evidence is more than a scintilla and is that evidence that a reasonable mind might accept as adequate to support a conclusion. See Richardson v. Perales, 402 U.S. 389, 401, 91 S.Ct. 1420, 28 L.Ed.2d 842 (1971). The court will also determine whether defendant applied the correct legal standards. See Washington v. Shalala, 37 F.3d 1437, 1439 (10th Cir.1994). During its review, however, the court will not reweigh the evidence or substitute its judgment for defendant’s. See Glass v. Shalala, 43 F.3d 1392, 1395 (10th Cir.1994). On the other hand, the court will not merely accept defendant’s findings. See Claassen v. Heckler, 600 F.Supp. 1507, 1509 (D.Kan.1985). Any new evidence not considered by the ALJ but submitted to the Appeals Council and considered in denying a request for review becomes part of the administrative record and will be considered by the court. O’Dell v. Shalala, 44 F.3d 855, 859 (10th Cir.1994). In order to determine whether a Social Security claimant is disabled, the Commissioner has developed a five-step sequential evaluation. 20 C.F.R. § 404.1520. See also Williams v. Bowen, 844 F.2d 748, 750-52 (10th Cir.1988). If the claimant fails at any of the steps where he or she bears the burden of proof, consideration of any subsequent steps is rendered unnecessary. See id. at 750 (“If a determination can be made at any of the steps that a claimant is or is not disabled, evaluation under a subsequent step is not necessary.”). The claimant bears the burden of proof at steps one through four. The initial inquiry is whether the claimant is engaged in substantial gainful activity. If not, the second step requires the fact finder to determine whether the claimant has a medically severe impairment or combination of impairments. See Bowen v. Yuckert, 482 U.S." }, { "docid": "3068982", "title": "", "text": "an impairment or combination of impairments medically equal to one defined in the Social Security regulations. One week after the AU rendered his decision, Dr. Windberg submitted a report stat ing that Nelson had been disabled by sleep apnea from July 1987 to April 1989, and Nelson’s condition was equivalent to minor motor epileptic seizures as described in Section 11.03 of the listed impairments. II. DISCUSSION A. Contents of the Record Before reviewing the Secretary’s decision, we must determine what role, if any, is played by the evidence of sleep apnea submitted to the Appeals Council by Dr. Windberg on September 29, 1989, one week after the AU rendered his decision. When new and material evidence is submitted to the Appeals Council, [t]he Appeals Council shall evaluate the entire record including the new and material evidence submitted if it relates to the period on or before the date of the administrative law judge hearing decision. It will then review the case if it finds that the administrative law judge’s action, findings, or conclusion is contrary to the weight of the evidence currently of record. 20 C.F.R. § 404.970(b). The newly submitted evidence is to become part of what we will loosely describe here as the “administrative record,” even though the evidence was not originally included in the AU’s record. Browning v. Sullivan, 958 F.2d 817, 823 n. 4 (8th Cir.1992). If the Appeals Council does not consider the new evidence, a reviewing court may remand the case to the Appeals Council if the evidence is new and material. See Williams v. Sullivan, 905 F.2d 214, 217 (8th Cir.1990). If, as here, the Appeals Council considers the new evidence but declines to review the case, we review the AU’s decision and determine whether there is substantial evidence in the administrative record, which now includes the new evidence, to support the AU’s decision. Browning, 958 F.2d at 823. B. Substantial Evidence Nelson argues the AU’s decision was not supported by substantial evidence on the record. Crucial to Nelson’s argument is the AU’s failure to consider sleep apnea as a condition equivalent to" }, { "docid": "21097872", "title": "", "text": "Following a supplemental hearing, the ALJ again evaluated Wheeler’s claim according to the five-step sequential analysis prescribed by the social security regulations. See 20 C.F.R. §§ 404.1520(a)-(f); Bowen v. Yuckert, 482 U.S. 137, 140-42, 107 S.Ct. 2287, 96 L.Ed.2d 119 (1987) (describing the five-step analysis). The ALJ determined that Wheeler met the disability insured status requirements as of February 25, 1992, as she had not engaged in substantial gainful activity since that date. The ALJ also found, however, that although Wheeler suffered from severe impairments, her impairments were not listed in, nor medically equal to, those listed in 20 C.F.R. § 404, Subpart P, Appendix 1. The ALJ concluded that Wheeler was unable to perform her past relevant work, but possessed the residual functional capacity to perform a significant number of jobs in the national economy. Consequently, the ALJ found that Wheeler was not under a disability as defined in the Social Security Act and denied her application for benefits accordingly. The Appeals Council denied Wheeler’s request for further review, thereby making the ALJ’s decision the final decision of the Commissioner. Wheeler then sought review in the district court pursuant to 42 U.S.C. § 405(g). The district court affirmed the decision of the Commissioner. On appeal before this court, Wheeler argues that the ALJ erred by: (1) failing to properly consider the testimony of Wheeler and her husband, pursuant to Polaski v. Heckler, 739 F.2d 1320 (8th Cir.1984) (subsequent history omitted); (2) failing to consider the totality of the medical evidence and instead unduly relying upon the findings of a non-treating physician; and (3) improperly relying upon the testimony of the vocational expert, which was inconsistent with the record. II. We consider the Commissioner’s denial of benefits to determine whether substantial evidence on the whole record supports the decision. Reeder v. Apfel, 214 F.3d 984, 987 (8th Cir.2000). Substantial evidence is relevant evidence that a reasonable mind would accept as adequate to support the Commissioner’s conclusion. Craig v. Apfel, 212 F.3d 433, 435 (8th Cir.2000). The court is required to review the administrative record as a whole, considering evidence which" }, { "docid": "555548", "title": "", "text": "spasm and significant limitation of motion in his spine and significant motor loss and muscle weakness and sensory/reflex loss” (Exhibit 14F, at 3). I am unable to afford any credit to these reported limitations because they are not corroborated by any supporting treatment records and [his] statements are inconsistent with the other reports of treating sources in the record as outlined above. In this appeal, Mr. Martinez is not challenging the ALJ’s rejection of Dr. Olivares’ opinions regarding his back impairment. Instead, he claims the Appeals Council erred during the second administrative appeal because the Appeals Counsel failed to address whether Dr. Olivares’ treatment records submitted to the Council, undercut the second ALJ’s rejection of Dr. Olivares’ opinions. Mr. Martinez’s argument is without merit. The pertinent regulation concerning new evidence submitted to the Appeals Council provides: If new and material evidence is submitted, the Appeals Council shall consider the additional evidence only where it relates to the period on or before the date of the administrative law judge hearing decision. The Appeals Council shall evaluate the entire record including the new and material evidence submitted if it relates to the period on or before the date of the administrative law judge hearing decision. It will then review the case if it finds that the administrative law judge’s action, findings, or conclusion is contrary to the weight of the evidence currently of record. 20 C.F.R. § 404.970(b). Here, the Appeals Council did not specify whether Dr. Olivares’ treatment records qualified as new, material, and chronologically relevant. It did, however, state that the treatment records were being made a part of the record. We interpret this statement as an implicit determination Mr. Martinez had submitted qualifying new evidence for consideration. As a result, the Appeals Council was required to “consider” Dr. Olivares’ treatment records as part of its “evaluation of] the entire record” to determine whether to “review the case.” 20 C.F.R. § 404.970(b). Mr. Martinez contends that the Appeals Council failed to do so, and that a remand is therefore necessary. We disagree. The Appeals Council stated it “considered the contentions" }, { "docid": "23373347", "title": "", "text": "opinion should have been considered. See 20 C.F.R. § 404.970(b) (“If new and material evidence is submitted, the Appeals Council shall consider the additional evidence only where it relates to the period on or before the date of the administrative law judge hearing decision.”). Where the Appeals Council was required to consider additional evidence, but failed to do so, remand to the ALJ is appropriate so that the ALJ can reconsider its decision in light of the additional evidence. See id. Accordingly, we remand to the ALJ for consideration of Dr. Thompson’s psychiatric evaluation and medical source statement. See Ramirez, 8 F.3d at 1451-52. On remand, the ALJ must account for Dr. Thompson’s opinion in the five-step sequential analysis required under 20 C.F.R. § 404.1520(a)(4)(i)-(v). See also Tackett v. Apfel, 180 F.3d 1094, 1098 (9th Cir.1999); Lounsburry v. Barnhart, 468 F.3d 1111, 1114 (9th Cir.2006). Even if Dr. Thompson’s opinion is contradicted by other evidence in the record, as a treating physician, his opinion may not be rejected without “specific and legitimate reasons ... supported by substantial evidence in the record.” See Lester, 81 F.3d at 830-31. II. The Appeals Council’s failure to consider Dr. Thompson’s opinion on review was not the only mistake made. The ALJ’s previous five-step sequential analysis also contained several errors. At step three, the ALJ failed to explain adequately his evaluation of the combined effect of Taylor’s impairments, both severe and non-severe, and why they did not meet or equal any of those on the Listing of Impairments, 20 C.F.R. Part 404, Subpart P, Appendix 1, particularly listing 12.06, anxiety-related disorders, and listing 12.07, somatoform disorders. See 20 C.F.R. § 404.1523; Marcia v. Sullivan, 900 F.2d 172, 176 (9th Cir.1990). At step four, the ALJ’s residual functional capacity determination was incomplete because it improperly discounted significant evidence in the record favorable to Taylor’s position. The ALJ gave primacy to the opinions of non-treating, non-examining medical consultants, Dr. John Crosson, Ph.D., and Dr. Jay Goodman, M.D., and gave weight to the other medical opinions in the record only to the extent that they were consistent with" }, { "docid": "3745401", "title": "", "text": "COLLOTON, Circuit Judge. Laura Julin appeals the judgment of the district court upholding the Social Seeuri ty Commissioner’s denial of her application for supplemental security income. We affirm. I. In December 2009, Julin applied for disability insurance benefits under Title II of the Social Security Act, 42 U.S.C. § 423, and for supplemental security income under Title XVI of the Act, 42 U.S.C. § 1382. She claimed a disability onset date of February 15, 2004. Julin based her claims of disability on depression, anxiety, and obsessive-compulsive disorder. Julin alleged that these conditions caused her difficulties with maintaining focus, energy, concentration, social interactions, and a regular schedule. The Social Security Administration denied Julin’s claims initially and on reconsideration, so Julin requested a hearing before an Administrative Law Judge (“ALJ”). After a hearing in July 2011, the ALJ found that Julin was not disabled and affirmed the denial of Julin’s applications. On administrative appeal, the Appeals Council remanded the case. The Council instructed the ALJ to evaluate further the opinions of Julin’s treating physician, Dr. Welsh, and Julin’s residual functional capacity (“RFC”). The Council provided that, if necessary, the ALJ should acquire additional medical evidence. After a hearing in July 2013 and review of all the evidence, the ALJ again denied Julin’s application. Applying the five-step sequential evaluation process used to evaluate whether a claimant is disabled, see 20 C.F.R. §§ 404.1520, 416.920; see also Bowen v. Yuckert, 482 U.S 137, 140-42, 107 S.Ct. 2287, 96 L.Ed.2d 119 (1987), the ALJ determined at step one that Julin had not engaged in “substantial gainful activity” since February 15, 2004. At steps two and three, the ALJ concluded that although Julin suffered from severe impairments— depressive disorder, anxiety disorder, obsessive-compulsive disorder, and a history of marijuana abuse — the impairments did not meet or equal the severity of any listed impairments in 20 C.F.R. Part 404, Sub-part P, Appendix 1. The ALJ then determined Julin’s residual functional capacity for purposes of steps four and five. The ALJ found that while Julin had the capacity “to perform a full range of work at all exertional" }, { "docid": "22690571", "title": "", "text": "to show that his impairments would have more than a minimal effect on his ability to do basic work activities, he is not eligible for disability benefits. If, on the other hand, the claimant presents medical evidence and makes the de minimis showing of medical severity, the decision maker proceeds to step three. In this case, the Appeals Council found that Mr. Williams “has not engaged in substantial gainful activity since October 1981.” Record, vol. 2, at 7. In addition, Mr. Williams apparently made the threshold showing that his impairments are medically severe enough to interfere with his ability to do basic work activities. Id. at 5-8. Step three “determines whether the impairment is equivalent to one of a number of listed impairments that the Secretary acknowledges are so severe as to preclude substantial gainful activity,” pursuant to 20 C.F.R. §§ 404.1520(d), 416.920(d) (1986). Bowen v. Yuckert, 107 S.Ct. at 2291. If the impairment is listed and thus conclusively presumed to be disabling, the claimant is entitled to benefits. If not, the evaluation proceeds to the fourth step, 20 C.F. R. §§ 404.1520(e), 416.920(e) (1986), where the claimant must show that the “impairment prevents [him] from performing work he has performed in the past.” Bowen v. Yuckert, 107 S.Ct. at 2291; see Tillery v. Schweiker, 713 F.2d 601, 602 (10th Cir.1983). If the claimant is able to perform his previous work, he is not disabled. The Appeals Council determined that Mr. Williams’ impairments are not found on or medically equal to the Secretary’s list of impairments conclusively presumed to be disabling. The Appeals Council found, however, that Mr. Williams is unable to return to his past relevant work as a diesel mechanic. At this point, then, Mr. Williams has met his burden of proof, establishing a prima facie case of disability. The' evaluation process thus proceeds to the fifth and final step: determining whether the claimant has the residual functional capacity (RFC) “to perform other work in the national economy in view of his age, education, and work experience.” Bowen v. Yuckert, 107 S.Ct. at 2291. The burden of proof" }, { "docid": "6541998", "title": "", "text": "P, App. 1 (Part A) (1995). If the claimant’s impairment matches or is “equal” to one (1) of the listed impairments, she qualifies for benefits without further inquiry. 20 C.F.R. §§ 404.1520(d); 416.920(d) (1995). If the claimant cannot qualify under the Listings, the analysis proceeds to the fourth and fifth steps. At these steps, the inquiry is whether the claimant can do her own past work or any other work that exists in the national economy in view of her age, education, and work experience. If the claimant cannot do her- past work or other work, she qualifies for benefits. 20 C.F.R. §§ 404.1520(e)-(f) and 416.920(e)-(f) (1995); see also, Bowen v. Yuckert, 482 U.S. 137, 140-42, 107 S.Ct. 2287, 2290-92, 96 L.Ed.2d 119 (1987). Application of these principles to the administrative record in this matter reveals that the Commissioner’s decision to deny plaintiff SSI benefits is not supported by substantial evidence because the ALJ’s opinion does not show a fair consideration of the evidence. Cotter v. Harris, 642 F.2d 700, 704 (3d Cir.1981); Kaelin v. Heckler, 637 F.Supp. 1103, 1104 (W.D.Pa.1986). The ALJ found that the plaintiff “may have intermittent anxiety and depression, but that her emotional impairments are not severe and that she has not sought ongoing psychological treatment.” (tr. 24). Although the ALJ mentioned Dr. Rynier’s report in the context of the Appeals Council’s remand, she apparently accepted the view of the prior ALJ. that the report was somehow internally inconsistent and contacted the psychiatrist for clarification of the report, (tr. 19). In fact, the Appeals Council directed that clarification was needed only if Dr. Ry-nier’s reports were inconsistent with each other and the record as a whole, (tr. 393). The record, however, does not contradict Dr. Rynier’s findings, nor is there any internal inconsistency in his report. Other physicians who have treated the plaintiff have confirmed that emotional problems have either caused or contributed to her physical complaints, (tr. 480-81, 618-19). Drs. Sam-burg and Weiland prescribed anti-anxiety and anti-depressive medication, (tr. 258-59, 619). In order to lose entitlement to benefits for refusal to follow prescribed treatment ," }, { "docid": "23639213", "title": "", "text": "court subsequently affirmed the Commissioner’s decision. II. This court’s review of the district court’s judgment “is limited to whether the Commissioner’s denial of benefits is supported by substantial evidence in the record as a whole.” Terrell v. Apfel, 147 F.3d 659, 661 (8th Cir.1998). Substantial evidence exists if a reasonable mind would find such evidence adequate to support a conclusion. Id.; Cf. Gaddis v. Chater, 76 F.3d 893, 895 (8th Cir.1996) (holding that evidence that supports the ALJ’s decision as well as that which detracts from it must be considered). “[T]he Social Security Amendments Act of 1954 defined ‘disability’ as ‘inability to engage in any substantial gainful activity by reason of any medically determinable physical or mental impairment ....’” Bowen v. Yuckert, 482 U.S. 137, 146, 107 S.Ct. 2287, 96 L.Ed.2d 119 (1987) (quoting 42 U.S.C. § 423(d)(1)(A)). The Commissioner has established a five-step evaluation process pursuant to the Social Security Act for determining whether a claimant is disabled within the meaning of the Act. Id. at 140, 107 S.Ct. 2287; 42 U.S.C. § 423(d)(1)(A). At step three, the Commissioner must determine whether the claimant’s impairment meets or equals one of the listed impairments. Yuckert, 482 U.S. at 141, 107 S.Ct. 2287; 20 C.F.R. § 404.1520 (2000). If the claimant has an impairment that meets the medical criteria of a listed impairment, the claimant is presumptively disabled, and no further inquiry is necessary. Id. A finding that a claimant’s impairment is not equal to a listed impairment does not end the inquiry. The regulations provide that if a claimant has more than one impairment, the combined effect of the impairments will be considered. Id. The medical equivalence regulation states “[i]f you have more than one impairment, and none of them meets or equals a listed impairment, we will review the symptoms, signs, and laboratory findings about your impairments to determine whether the combination of your impairments is medically equal to any listed impairment.” 20 C.F.R. § 404.1526(a). The determination of medical equivalence is made based on medical evidence, supported by acceptable laboratory and clinical diagnostic techniques. Id. at (b). In" }, { "docid": "5027372", "title": "", "text": "can be expected to result in death or which has lasted or can be expected to last for a continuous period of not less than 12 months.” 42 U.S.C. § 423(d)(1)(A). In making this determination, the Commissioner must sequentially consider (1) whether the claimant is engaged in substantial gainful activity, (2) whether he has a medically severe impairment that meets the duration requirement, and (3) whether his impairment meets or equals one of the impairments listed in Appendix 1 to 20 C.F.R. Part 404 and meets the duration requirement. See Bowen v. Yuckert, 482 U.S. 137, 140-42, 107 S.Ct. 2287, 96 L.Ed.2d 119 (1987); Goff v. Barnhart, 421 F.3d 785, 789-90 (8th Cir.2005); 20 C.F.R. § 404.1520. If the claimant satisfies each of these three elements, the claimant is conclusively presumed to be disabled. Bowen, 482 U.S. at 141, 107 S.Ct. 2287. If the impairment is not one that meets or equals one of the listings, the Commissioner must determine whether the impairment prevents the claimant from performing work that he has performed in the past or whether he is able to perform other work in the national economy in view of his age, education, and work experience. Id. at 141-42, 107 S.Ct. 2287. A. Karlix first argues that the ALJ erred by failing to consider evidence of a listing-level impairment. Karlix alleges that he satisfied the requirements for the § 4.12.B.1 listing for peripheral arterial disease from at least April 29, 2002, to February 21, 2003. For a claimant to meet the § 4.12.B.1 listing, he must show that he suffers from “[intermittent claudication with marked impairment of peripheral arterial circulation as determined by Doppler studies showing” a resting ABI of less than 0.50. 20 C.F.R. Pt. 404, Subpt. P, App. 1, § 4.12.B.1. Contrary to Karlix’s assertion, the ALJ did consider evidence of a listed impairment and concluded that there was “no showing on this record that the claimant’s impairments, whether considered singly or in combination, meet or are equivalent to any of the listed impairments.” Administrative R. at 15. The fact that the ALJ did not elaborate" }, { "docid": "3745402", "title": "", "text": "Julin’s residual functional capacity (“RFC”). The Council provided that, if necessary, the ALJ should acquire additional medical evidence. After a hearing in July 2013 and review of all the evidence, the ALJ again denied Julin’s application. Applying the five-step sequential evaluation process used to evaluate whether a claimant is disabled, see 20 C.F.R. §§ 404.1520, 416.920; see also Bowen v. Yuckert, 482 U.S 137, 140-42, 107 S.Ct. 2287, 96 L.Ed.2d 119 (1987), the ALJ determined at step one that Julin had not engaged in “substantial gainful activity” since February 15, 2004. At steps two and three, the ALJ concluded that although Julin suffered from severe impairments— depressive disorder, anxiety disorder, obsessive-compulsive disorder, and a history of marijuana abuse — the impairments did not meet or equal the severity of any listed impairments in 20 C.F.R. Part 404, Sub-part P, Appendix 1. The ALJ then determined Julin’s residual functional capacity for purposes of steps four and five. The ALJ found that while Julin had the capacity “to perform a full range of work at all exertional levels,” she had several nonexertional limitations'. The ALJ stated that Julin’s residual functional capacity was “limited to tasks that can be learned in thirty days or less involving no more than simple work-related decisions with few work place changes; no more than occasional, brief, and superficial interaction with the public, co-workers, and supervisors; and no work at production rate pace.” The ALJ submitted Julin’s RFC in the form of a hypothetical question to a vocational expert. The expert believed that Ju-lin could not return to any of her past positions of employment but was capable of performing other jobs that exist in significant numbers in the national economy. The ALJ therefore concluded that Julin was not disabled and denied the application for disability insurance benefits and supplemental security income. Julin appealed, and the Appeals Council denied Julin’s request for review. Julin then sought review in the district court, appealing only the denial of supplemental security income based on an alleged onset date of December 21, 2009. The district court upheld the ALJ’s decision. Julin appeals," }, { "docid": "22145895", "title": "", "text": "mental retardation exist before age 22. Because Williams did not meet his burden of production, the Secretary was not required to submit conflicting evidence to refute his claims. In order to qualify for benefits at step three of the sequential evaluation process, a claimant must match or equal a listed impairment. “For a claimant to show that his impairment matches a listing, it must meet all of the specified medical criteria. An impairment that manifests only some of those criteria, no matter how severely, does not qualify.” Zebley, 110 S.Ct. at 891 (emphasis in original). “For a claimant to qualify for benefits by showing that his unlisted impairment, or combination of impairments, is ‘equivalent’ to a listed impairment, he must present medical findings equal in severity to all the criteria for the one most similar listed impairment.” Id. (emphasis in original). Williams failed to meet his burden of proving he was mentally retarded before age 22. He produced evidence of a significant mental impairment, but he did not demonstrate that its onset occurred during the developmental period identified in the listings. Had Dr. Dyer’s evidence with respect to Williams’ IQ been sufficient to show Williams was mentally retarded prior to age 22, the Secretary would have had to proffer evidence to counteract his claim of disability under the regulations. Dr. Dyer’s evaluation was not sufficient to support Williams’ claim of retardation prior to age 22, however, so Williams cannot be found disabled under step three of the sequential evaluation process. B. With regard to the second prong of section 12.05(C), the requirement of an additional and significant work-related limitation of function, Williams argues that the Appeals Council improperly substituted its own finding concerning Williams’ ability to perform his past relevant work for the finding of the ALJ. To the contrary, the Council properly reviewed the record and concluded that Williams did not satisfy the statutory criteria for a finding of disability. There is sufficient evidence in the record to support the Appeals Council’s denial of benefits to Williams. We have in this case a claimant who has worked hard all" }, { "docid": "23030810", "title": "", "text": "failed to satisfy the third requirement because it “pertained to dates after the ALJ’s final decision,” and, therefore, “cannot be given merit in evaluating plaintiffs alleged mental impairment.” App. Vol. 1 at 43. This ruling begs the question: who decides whether evidence qualifies as new, material, and related to the relevant period? One fine of our cases suggests that we do: we have repeatedly held that whether evidence is “new, material and chronologically pertinent is a question of law subject to our de novo review.” Threet v. Barnhart, 353 F.3d 1185, 1191 (10th Cir.2003); see Chambers, 389 F.3d at 1142. But we have also held that when the Appeals Council accepts additional evidence, that is “an implicit determination [that it is] ... qualifying new evidence,” requiring the Appeals Council to consider it and this court to include it in our review of the ALJ’s decision, without separate consideration of the requirements for qualification. Martinez v. Barnhart, 444 F.3d 1201, 1207-08 (10th Cir.2006); Hill v. Astrue, 289 Fed.Appx. 289, 293 (10th Cir.2008); Foy v. Barnhart, 139 Fed.Appx. 39, 41-42 (10th Cir.2005). These two lines of cases do not clash where the Appeals Council rejects new evidence as non-qualifying and the claimant challenges that ruling on judicial review — in that event, Martinez does not apply and our general rule of de novo review permits us to resolve the matter and remand if the Appeals Council erroneously rejected the evidence. Chambers, 389 F.3d at 1142. But, as has been remarked, our cases do present a potential conflict if the Appeals Council accepts new evidence: do we revisit the matter de novo (per Threet) or are we bound by the agency’s decision to accept the evidence (per Martinez)? See Haddock v. Astrue, No. 08-CV-00393-PAB, 2009 WL 3162170, at *11 n. 2 (D.Colo. Sept. 29, 2009). Identifying the limited ground of potential conflict here actually suggests the path out of it. When the Appeals Council accepts new evidence, the claimant obviously benefits (he may not succeed with such evidence, but that is a separate issue), hence the only “aggrieved” party that could object is" }, { "docid": "4952822", "title": "", "text": "record that you had seen this doctor from January 6, 1993 until the current evaluation,” “no intervening medical records have been submitted,” and “the prior medical reports from this source were considered in the decision and there is no mention of memory deficits or severe functional limitations at that time.” (Id. at 8.) II. DISCUSSION Due to the unusual posture of this case I shall remand this case for another hearing by the ALJ. I do so because I find and conclude that there is not “substantial evidence” in the record as a whole to support the step-3 finding by the ALJ that Dobson did not meet or exceed the criteria for the impairment known as “organic mental disorder” as defined in the “Listing of Impairments” found in 20 C.F.R. Part 404, Subpart P, Appendix 1, § 12.02 (1995). In particular, I find that the ALJ’s statement that such an impairment is not “supported by the clinical and laboratory findings of record” (Tr. at 25) is untrue given the information submitted to the Appeals Council, specifically the opinion of the treating brain surgeon which is supported by his clinical notes and by responses to a detailed medical questionnaire. If Dobson suffered from an “organic mental disorder” as defined in the regulations then Dobson’s condition would' be “considered as a matter of law” to be “‘so severe as to preclude substantial gainful activity.’ ” Riley, 18 F.3d at 621 (quoting Bowen v. Yuckert, 482 U.S. 137, 141, 107 S.Ct. 2287, 2291, 96 L.Ed.2d 119 (1987)). In arriving at these findings and conclusions I have applied the following principles. First, in determining whether there is “substantial evidence” to support the decision of the ALJ I recognize that: (a) sub stantial evidence is more than a “mere scintilla”; (b) substantial evidence is the amount of evidence that a reasonable mind might accept as adequate as support of a conclusion; and (c) substantial evidence is determined by reviewing the whole record. Trew, 861 F.Supp. at 866 (citations omitted). Second, I also realize that: (a) my role is not to decide the facts anew, my" }, { "docid": "22350706", "title": "", "text": "submitted by Mr. Hargis and the reports supplied after Mr. Hargis underwent further psychological evaluation, the administrative law judge found that the claimant suffered from chronic lumbo-sacral strain and depression. The administrative law judge nevertheless found that those ailments did not render Mr. Hargis so disabled that he could not engage in substantial gainful activity and denied his application for social security disability payments. The Appeals Council denied Mr. Hargis' request for review, rendering the decision of the administrative law judge the final decision of the Secretary. 20 C.F.R. §§ 404.981, 416.1481 (1989). The district court found that the Secretary’s findings were supported by substantial evidence. Mr. Hargis now brings this appeal. To qualify for disability benefits, the claimant must establish a physical or mental impairment expected to result in death or last for a continuous period of twelve months which prevents the claimant from engaging in substantial gainful activity. 42 U.S.C. § 423(c)(1)(A) (1988). The Secretary has established a five-step sequential evaluation process for determining disability. See 20 C.F.R. §§ 404.1520, 416.920 (1990). The first two steps, that the claimant is not presently engaged in substantial gainful activity and that he suffers from a medically severe impairment or combination of impairments, are not at issue. Mr. Hargis’ complaint is with the Secretary’s findings in the third and fifth steps of the sequential evaluation process. The Secretary found that Mr. Hargis’ impairments are not found on or medically equal to the Secretary’s list of impairments conclusively presumed to be disabling. 20 C.F.R. § 404, Subpt. P, App. 1 (1989). While the Secretary found that Mr. Hargis is unable to return to his past relevant work as a truck driver, the fourth step in the sequential evaluation process, he determined that the claimant had the residual functional capacity to perform other work in the national economy in view of his age, education, and work experience. He therefore denied the claimant’s application for social security disability. See generally Bowen v. Yuckert, 482 U.S. 137, 107 S.Ct. 2287, 96 L.Ed.2d 119 (1987). Mr. Hargis complains that the Secretary erred when he did not" }, { "docid": "22216475", "title": "", "text": "COLLOTON, Circuit Judge. Stefania Harris applied for disability insurance benefits and supplemental security benefits under Titles II and XVI of the Social Security Act. The Commissioner of the Social Security Administration denied Harris’s application. An administrative law judge (“ALJ”) determined that Harris’s history of diabetes did not meet the criteria for presumptive disability under 20 C.F.R. Part 404, Subpart P, Appendix 1, and that Harris was “not disabled” within the meaning of the Social Security Act during the period for which she sought benefits. The Social Security Appeals Council denied review, and the district court affirmed the decision of the Commissioner. We affirm. I. We review de novo the district court’s decision to uphold the denial of social security benefits. Pettit v. Apfel, 218 F.3d 901, 902 (8th Cir.2000). Our task is to consider whether the Commissioner’s decision is supported by substantial evidence in the record as a whole. Chamberlain v. Shalala, 47 F.3d 1489, 1493 (8th Cir.1995). We consider both evidence that supports and detracts from the ALJ’s decision, but even if inconsistent conclusions may be drawn from the evidence, the decision will be affirmed where substantial evidence on the record as a whole supports the ALJ’s decision. Id. We do not reweigh the evidence presented to the ALJ, and it is “the statutory duty of the ALJ, in the first instance, to assess the credibility of the claimant and other witnesses.” Bates v. Chater, 54 F.3d 529, 532 (8th Cir.1995) (internal quotation and citation omitted). II. The Commissioner follows a five-step process to determine whether a claimant is disabled. See generally 20 C.F.R. § 404.1520; Bowen v. Yuckert, 482 U.S. 137, 140-42, 107 S.Ct. 2287, 96 L.Ed.2d 119 (1987); Cox v. Apfel, 160 F.3d 1203, 1206 (8th Cir.1998). At step two, the ALJ hearing the case must determine whether the claimant has a medically severe impairment or combination of impairments. If the impairment is severe, then the ALJ proceeds to step three to determine whether the impairment is equal to an impairment listed by the Social Security Administration as precluding substantial gainful activity. For a claimant to show" } ]

[ { "docid": "9329086", "title": "", "text": "We agree. As the District Court observed, the Supreme Court in Will v. Michigan Department of State Police, 491 U.S. 58, 64, 109 S.Ct. 2304, 2308, 105 L.Ed.2d 45 (1989), held that “a State is not a person within the meaning of § 1983.” In Cannon v. University of Health Sciences/The Chicago Medical School, 710 F.2d 351, 357 (7th Cir.1983), we held that the plaintiff was barred by the eleventh amendment from suing a state university for damages pursuant to § 1983 because state universities are “alter egos” of the state. See also Kashani v. Purdue University, 813 F.2d 843, 844 (7th Cir.) (in § 1983 action, state university “an arm of the state” entitled to eleventh amendment protection against claims for monetary damages), cert. denied, 484 U.S. 846, 108 S.Ct. 141, 98 L.Ed.2d 97 (1987). Because this Court has determined in previous § 1983 actions that a state university is an alter ego of the state, and, under Will, a “State is not a person” under § 1983, it follows that a state university is not a person within the meaning of § 1983 and therefore not subject to suits brought under § 1983. We find unpersuasive Kaimowitz’s claim that Will suggested that the immunity afforded states does not extend to public universities when it cited Patsy v. Board of Regents of Florida, 457 U.S. 496, 503, 102 S.Ct. 2557, 2561, 73 L.Ed.2d 172 (1982), a case involving a state university, for the proposition that “Congress assigned to the federal courts a paramount role” in protecting civil liberties. Will, 491 U.S. at 66, 109 S.Ct. at 2309. The mere fact that Will quotes from a case involving a state university does not mean that the Court intended to create an exception to the general rule that a state is not a person under § 1983. Indeed, the sentence immediately following the reference to Patsy states, “Section 1983 provides a federal forum to remedy many deprivations of civil liberties, but it does not provide a federal forum for liti gants who seek a remedy against a State for alleged deprivations" } ]

[ { "docid": "20149755", "title": "", "text": "may be reduced to conform to the statutory maximum. Because Plaintiff fails to cite a legal basis for his position, the Court dismisses his claim in Count II for emotional damages in excess of $300,000. iii. Plaintiffs Prayer for Relief in Counts III & IV The Entity Defendants move to dismiss Plaintiffs claims for monetary damages in Counts III and IV. Plaintiff, in response, concedes that the Entity Defendants may not be subject to suit for monetary damages under § 1983. The Eleventh Amendment prohibits private parties from filing a federal lawsuit against a state, state agency, or state official unless the state waives its Eleventh Amendment immunity by consenting to suit, or Congress unequivocally abrogates the state’s immunity. See Kroll v. Bd. of Trs. of the Univ. of Ill., 934 F.2d 904, 907 (7th Cir.1991). Illinois has not consented to suit in this case, and it is well-settled that Congress did not abrogate states’ sovereign immunity when it enacted § 1983. Quern v. Jordan, 440 U.S. 332, 342, 99 S.Ct. 1139, 59 L.Ed.2d 358 (1979); see Smith v. Illinois, No. 07 C 7048, 2009 WL 1515306, at *7 (N.D.Ill. May 27, 2009). Moreover, states, their agencies, and officials are not “persons” who may be subject to suit for damages under § 1983. Will v. Mich. Dep’t of State Police, 491 U.S. 58, 69-71, 109 S.Ct. 2304, 105 L.Ed.2d 45 (1989); Levenstein v. Salafsky, 414 F.3d 767, 772 (7th Cir.2005). Accordingly, to the extent that Plaintiff seeks monetary damages or indemnification from the Entity Defendants under Counts III and IV, those claims are dismissed. Ex Parte Young provides a limited exception to the doctrine of sovereign immunity by allowing parties to sue state officials, in their official capacity, for equitable relief that is prospective in nature. 209 U.S. 123, 28 S.Ct. 441, 52 L.Ed. 714 (1908). Counts III and IV of Plaintiffs first amended complaint seek declaratory and injunctive relief, including reinstatement and other prospective equitable relief. The parties agree that Plaintiff may seek reinstatement under Ex Parte Young. See Kashani v. Purdue Univ., 813 F.2d 843, 848 (7th Cir.1987);" }, { "docid": "7054196", "title": "", "text": "official capacities; (2) whether defendants violated plaintiffs first amendment rights; (3) whether plaintiff waived any right that he had to a pre-termi-nation hearing by failing to invoke the University’s grievance procedures; (4) whether the district court erred in dismissing the pendent state-law claims; and (5) whether the district court erred in failing to award summary judgment to plaintiff. I. Immunity Under Eleventh Amendment Plaintiff asserts that his claims under 42 U.S.C. §§ 1983, 1985, 1986, and 1988 against the State, the University, and the individual defendants acting in their official capacities are not barred by the eleventh amendment. We disagree. The Supreme Court expressly has held that the eleventh amendment prohibits damage suits against states under section 1983. Quern v. Jordan, 440 U.S. 332, 342, 99 S.Ct. 1139, 1146, 59 L.Ed.2d 358 (1979); Edelman v. Jordan, 415 U.S. 651, 663, 94 S.Ct. 1347, 1355, 39 L.Ed.2d 662 (1974). We see no reason why the Supreme Court’s reasoning and holding should not apply with equal force to plaintiff’s civil rights claims under section 1985 (conspiracy) and section 1986 (failure to prevent conspiracy violations). See, e.g., Williams v. Bennett, 689 F.2d 1370, 1376-77 (11th Cir.1982) (state board of corrections immune from damage suits brought under sections 1983, 1985, and 1986), cert. denied, 464 U.S. 932, 104 S.Ct. 335, 78 L.Ed.2d 305 (1983). Nor do we agree with plaintiff’s contention that the University or its Board of Regents is separate from the State for eleventh amendment purposes. The relationship between a public entity and a state is determined by state law. Korgich v. Regents of New Mexico School of Mines, 582 F.2d 549, 551 (10th Cir.1978); Unified School Dist. No. 480 v. Epperson, 583 F.2d 1118, 1121 (10th Cir.1978). Under Oklahoma’s constitutional and statutory scheme, the Board of Regents, which supervises the University and in whose name all suits against the University must be brought, is an arm of the State. Okla. Const, arts. XIII, XIII-A, XIII-B; Okla. Stat.Ann. tit. 70 §§ 3201-3310 (1981). See Gay Activists Alliance v. Board of Regents, 638 P.2d 1116, 1123 (Okla.1981) (“For the purpose of monetary damages," }, { "docid": "12469798", "title": "", "text": "official capacities as social worker and supervisor. While the § 1983 claim is further discussed infra, the reason for the Court’s inquiry was that except for an Ex parte Young claim for prospective, injunctive relief (inapplicable here), a § 1983 claim against a state actor in her official capacity is treated as a suit against the government entity where she works. 209 U.S. 123, 28 S.Ct. 441, 52 L.Ed. 714 (1908); Kentucky v. Graham, 473 U.S. 159, 165-67, 105 S.Ct. 3099, 87 L.Ed.2d 114 (1985); Dirrane v. Brookline Police Dep’t, 315 F.3d 65, 71 (1st Cir.2002). And, because Rhode Island and its agencies are not “persons” under § 1983, Will v. Michigan Dept. of State Police, 491 U.S. 58, 71, 109 S.Ct. 2304, 105 L.Ed.2d 45 (1989), official capacity claims are not a viable theory for § 1983 money damages. Any discernable claim for money damages out of official capacity liability against DCYF employees would ordinarily be dismissed because DCYF, as an arm of the State, is entitled to Eleventh Amendment sovereign immunity. See Pennhurst State Sch. & Hosp. v. Halderman, 465 U.S. 89, 100, 104 S.Ct. 900, 79 L.Ed.2d 67 (1984) (“a suit in which the State or one of its agencies or departments is named as the defendant is proscribed by the Eleventh Amendment”); Quern v. Jordan, 440 U.S. 332, 341-42, 99 S.Ct. 1139, 59 L.Ed.2d 358 (1979) (absent other waiver or consent, Eleventh Amendment immunity applies to § 1983 cases). See discussion Section VI, infra. Recognizing their self-described “confusion” and “erroneous response” to the Court’s questions, Plaintiffs moved to submit a Fourth Amended Complaint, adding “clarifying language” to reflect an intention to sue Defendants Margaret (“Peggy”) Gloria and Stephanie Terry in their individual capacities. Plaintiffs argued that regardless of counsel’s misstatement, the travel of the case and substance of the prior complaint reflected their intent to actually pursue individual liability. Uncertainty in pleading § 1983 claims is not uncommon. Specificity is encouraged but when the issue is left “murky,” the First Circuit looks to the “substance of the pleadings and the course of proceedings in order to" }, { "docid": "16363163", "title": "", "text": "U.S. 651, 662-63, 94 S.Ct. 1347, 1355-56, 39 L.Ed.2d 662 (1974); Hernandez v. State of N.M., No. 94-2287, 1995 WL 490289, at *3 (10th Cir.1995) (Eleventh Amendment “does not bar all actions against state entities, but only damages actions against state entities brought in federal court”), cert. denied, — U.S.-, 116 S.Ct. 943, 133 L.Ed.2d 868 (1996); Ramirez v. Oklahoma Dep’t of Mental Health, 41 F.3d 584, 588 (10th Cir.1994). This jurisdictional bar applies regardless of whether plaintiff seeks monetary or prospective relief. Johnson v. Wefald, 779 F.Supp. 154, 155-56 (D.Kan.1991)(citing Pennhurst, 465 U.S. at 100, 104 S.Ct. at 907-08). Eleventh Amendment immunity applies to suits arising under 42 U.S.C. § 1983. Quern v. Jordan, 440 U.S. 332, 339-40, 99 S.Ct. 1139, 1144-45, 59 L.Ed.2d 358 (1979). The Supreme Court has invoked the standards applicable to Eleventh Amendment immunity if violations of the Fourteenth Amendment are alleged. See Seminole Tribe of Fla. v. Florida, — U.S. -, 116 S.Ct. 1114, 134 L.Ed.2d 252 (1996). Klein has brought federal civil rights claims and state law claims against the Medical Center and the Board seeking monetary, declaratory, and injunctive relief. In an action brought against a public agency, application of the Eleventh Amendment “turns on whether the agency or institution can be characterized as an arm or alter ego of the state.” Gray v. University of Kan. Medical Ctr., 715 F.Supp. 1041, 1042 (D.Kan.1989); see also Mascheroni v. Board of Regents of the Univ. of Cal., 28 F.3d 1554, 1559 (10th Cir.1994)(arm of the state doctrine provides immunity for entities created by the state that operate as alter egos or instrumentalities of the state); Ambus v. Granite Bd. of Educ., 995 F.2d 992, 994 (10th Cir.1993)(en banc). The District of Kansas has concluded that the Medical Center is an instrumentality of the state sharing in the state’s immunity from suit in federal court under the Eleventh Amendment. See, e.g., Young v. University of Kan. Med. Ctr., No. 96-2390-KHV, 1997 WL 150051 (D.Kan. Feb.26, 1997); Ellis v. University of Kan. Med. Ctr., No. 95-2376-GTV, 1996 WL 570187 (D.Kan. Sept.17, 1996); Gray, 715 F.Supp." }, { "docid": "16761152", "title": "", "text": "equitable relief for ongoing violations of federal law....” Marie O. v. Edgar, 131 F.3d 610, 615 (7th Cir.1997); see Ex parte Young, 209 U.S. 123, 159-60, 28 S.Ct. 441, 52 L.Ed. 714 (1908). Peirick does not contend that Indiana consented to suit in federal court. Her ability to resort to the second exception was cut short in Kimel v. Fla. Bd. of Regents, 528 U.S. 62, 91, 120 S.Ct. 631, 145 L.Ed.2d 522 (2000), where the Court held that “in the ADEA, Congress did not validly abrogate the States’ sovereign immunity to suits by private individuals.” So only the Ex parte Young exception remains, and Peirick has not availed herself of that option. Although Peirick requests only prospective injunctive relief, she has not brought suit against a state official. Indeed, Peir-ick cannot seriously dispute that IUPUI, a partnership between Indiana and Purdue Universities, is an agency of the state of Indiana. See Woods v. Ind. Univ.-Purdue Univ., 996 F.2d 880, 883 (7th Cir.1993) (citing favorably Shannon v. Bepko, 684 F.Supp. 1465 (S.D.Ind.1988), which held Indiana University and IUPUI to be agencies of the state); see also Parco v. Trs. of Ind. Univ., 453 F.3d 390, 394-95 (7th Cir.2006); Kashani v. Purdue Univ., 813 F.2d 843, 844 (7th Cir.1987). And, as explained below, the Board of Trustees of Indiana University is an agency of the state. Many courts have held that the governing bodies of their state universities enjoy the same immunity from suit as the universities themselves. See Richardson v. Southern Univ., 118 F.3d 450, 455 (5th Cir.1997) (“Southern [University] and its Board are considered an agency of the State of Louisiana”); Hall v. Hawaii, 791 F.2d 759, 761 (9th Cir.1986) (holding that the University of Hawaii and its board of regents “are clearly immune as agencies of the state”); Harden v. Adams, 760 F.2d 1158, 1164 (11th Cir.1985) (noting that “the Board of Trustees of a state university is entitled to sovereign immunity as an instrumentality of the state”); Cannon v. Univ. of Health Sciences/Chi. Med. Sch., 710 F.2d 351, 356 (7th Cir.1983) (Southern Illinois University and the Board" }, { "docid": "8116412", "title": "", "text": "and focuses solely on arguing that the Board should not be considered part of the state. To make the analysis clearer, the Court will first discuss the Eleventh Amendment issue and the appli cation of federal law to that issue. The Court will then discuss the Illinois Court of Claims Act and the state law that applies. The Eleventh Amendment provides that “[t]he Judicial power of the United States shall not be construed to extend to any suit in law or equity, commenced or prosecuted against one of the United States by Citizens of another State, or by Citizens or Subjects of any Foreign State.” Despite its plain language, “the amendment has been construed to forbid suits prosecuted against a state by its own citizens as well.” Id. (citing Hans v. Louisiana, 134 U.S. 1, 10 S.Ct. 504, 33 L.Ed. 842 (1890)). Dr. Salaita’s sole argument is that the Board should no longer be considered part of the State of Illinois for sovereign immunity purposes under the test set forth in Ranyard v. Bd. of Regents, 708 F.2d 1235, 1238 (7th Cir.1983). The University responds that the Court need not resort to that test because several cases over the years have consistently reaffirmed that the Board is an arm of the state. See, e.g., Pollak v. Bd. of Trs. of Univ. of Ill., No. 99 C 710, 2004 WL 1470028, at *2-3 (N.D.Ill. June 30, 2004). Though the parties have spilled much' ink on this issue, the Court need not reach it for several reasons. First, the Eleventh Amendment does not bar claims seeking injunctive relief like Dr. Salaita seeks here. See, Mutter v. Madigan, 17 F.Supp.3d 752, 758 (N.D.Ill.2014) (“[A] suit for prospective injunctive relief is not deemed a suit against the state and thus is not barred by the Eleventh Amendment.”) (internal quotation marks omitted). Thus, to the extent Dr. Salaita seeks an injunction reinstating him as a professor, the Eleventh Amendment does not require dismissal of the Board or the individual Defendants sued in their official capacities. Second, the Eleventh Amendment only bars “unconsenting” states from suits" }, { "docid": "653978", "title": "", "text": "105 S.Ct. at 3104-OS. Official-capacity suits, in contrast, are deemed to be against the “ ‘entity of which an officer is an agent.’ ” Id. at 165, 105 S.Ct. at 3105 (quoting Monell, 436 U.S. at 690 n. 55, 98 S.Ct. at 2035 n. 55). Accordingly, official-capacity suits for retrospective relief — i.e., money damages payable from the state treasury — generally impli cate the eleventh amendment in the absence of a waiver by the state or a valid congressional override. See Quern v. Jordan, 440 U.S. 332, 99 S.Ct. 1139, 59 L.Ed.2d 358 (1979). Under an exception to the general rule, however, official-capacity actions may not be barred by the eleventh amendment insofar as they request prospective relief — i.e., an injunction or a declaratory judgment and monetary damages that are “ancillary” to either. Graham, 473 U.S. at 169 n. 18, 105 S.Ct. at 3107 n. 18; Ex Parte Young, 209 U.S. 123, 28 S.Ct. 441, 52 L.Ed. 714 (1908). The suit before the district court involved both an action against a state agency as well as personal-capacity and official-capacity actions against Stoner. Only the Board, however, has appealed and only the Board’s immunity, therefore, need be addressed. This acknowledgment, in turn, leads us to Cannon v. University of Health Sciences/Chicago Medical School, 710 F.2d 351 (7th Cir.1983). In Cannon, this court concluded that the Board was a state agency and, as such, that it was entitled to eleventh amendment immunity. Id. at 356-57. Kroll does not contest the validity of our analysis in Cannon (and we therefore do not revisit its holding) but he does try to circumvent the case. Kroll first cites Quern, a suit against state officials in which the Supreme Court observed that “a suit in federal court by private parties seeking to impose a liability which must be paid from public funds in the state treasury is barred by the Eleventh Amendment.” 440 U.S. at 337, 99 S.Ct. at 1143. The Athletic Association, Kroll contends, raised funds solely from such sources as ticket sales, alumni donations, and sales of memorabilia; it did not accept" }, { "docid": "20780973", "title": "", "text": "v. S. Univ., 118 F.3d 450, 453 (5th Cir.1997) (“Louisiana has not waived its sovereign immunity for suits brought in federal court”), and Congress has not abrogated state sovereign immunity under the ADEA, see Kimel v. Fla. Bd. of Regents, 528 U.S. 62, 91, 120 S.Ct. 631, 145 L.Ed.2d 522 (2000), nor under § 1983, see Quern v. Jordan, 440 U.S. 332, 339-340, 99 S.Ct. 1139, 59 L.Ed.2d 358 (1979); Richardson, 118 F.3d at 453. Raj’s only contention on appeal regarding .subject matter jurisdiction is to note, correctly, that the Eleventh Amendment does not bar suits for injunctive or declaratory relief against individual state officials acting in violation of federal law. See Ex parte Young, 209 U.S. 123, 155-56, 28 S.Ct. 441, 52 L.Ed. 714 (1908). To fall within the Ex parte Young exception to sovereign immunity, however, a plaintiff must name individual state officials as defendants in their official capacities. See Kentucky v. Graham, 473 U.S. 159, 169 n. 18, 105 S.Ct. 3099, 87 L.Ed.2d 114 (1985) (“In an injunctive or declaratory action grounded on federal law, the State’s immunity can be overcome by naming state officials as defendants.”). Although Raj has asserted claims for injunctive and declaratory relief, he cannot overcome sovereign immunity under Ex parte Young because he has named only LSU, LSU Health, and the LSU Board as defendants. Thus, Raj’s ADEA and § 1983 and § 1985 claims are barred if the LSU Board is “an arm of [the] State” and, therefore, an entity entitled to sovereign immunity. Richardson, 118 F.3d at 450 (holding that even when a plaintiff does not “name the State of Louisiana as a defendant ... [his] suit may nonetheless succumb to Eleventh Amendment immunity if the State is the real party in interest.”). For the same reasons we articulated with regard to Southern University and its Board in Richardson, 118 F.3d at 454-56, and the University of Southern Louisiana in Delahoussaye v. City of New Iberia, 937 F.2d 144, 147-48 (5th Cir.1991), we agree with the district court’s finding—which Raj fails to challenge on appeal—that the LSU Board is an" }, { "docid": "8116413", "title": "", "text": "Regents, 708 F.2d 1235, 1238 (7th Cir.1983). The University responds that the Court need not resort to that test because several cases over the years have consistently reaffirmed that the Board is an arm of the state. See, e.g., Pollak v. Bd. of Trs. of Univ. of Ill., No. 99 C 710, 2004 WL 1470028, at *2-3 (N.D.Ill. June 30, 2004). Though the parties have spilled much' ink on this issue, the Court need not reach it for several reasons. First, the Eleventh Amendment does not bar claims seeking injunctive relief like Dr. Salaita seeks here. See, Mutter v. Madigan, 17 F.Supp.3d 752, 758 (N.D.Ill.2014) (“[A] suit for prospective injunctive relief is not deemed a suit against the state and thus is not barred by the Eleventh Amendment.”) (internal quotation marks omitted). Thus, to the extent Dr. Salaita seeks an injunction reinstating him as a professor, the Eleventh Amendment does not require dismissal of the Board or the individual Defendants sued in their official capacities. Second, the Eleventh Amendment only bars “unconsenting” states from suits in federal court, Benning, 928 F.2d at 777, and the Illinois Supreme Court has recently clarified that state law allows claims like Dr. Salaita’s to be brought outside the ICC. Leetaru v. Bd. of Trs. of Univ. of Ill., 392 Ill.Dec. 275, 32 N.E.3d 583, 595-98 (Ill.2015). As discussed below, the allegations in Dr. Salaita’s Complaint bring his suit outside the ICC’s exclusive jurisdiction. Thus, the Court need not decide whether the Board should still be considered part of the state for Eleventh Amendment purposes because, even if it is, state law allows Dr. Salaita’s claim to proceed in federal court. Turning to the state law issue directly, the University argues that the ICC possesses exclusive jurisdiction over Dr. Salai-ta’s state law claims. In Illinois, “[t]he doctrine of sovereign immunity was abolished ... by the 1970 Constitution ‘[e]x-cept as the General Assembly may provide by law.’” Id. (quoting Ill. Const. 1970, art. XIII, §4). Shortly after abolishing constitutional sovereign immunity, Illinois adopted statutory sovereign immunity when the General Assembly enacted the State Lawsuit Immunity Act," }, { "docid": "1550930", "title": "", "text": "(holding in patent infringement action that state’s sovereign immunity was waived as to its own patent infringement claims and compulsory counterclaims brought against it but not as to permissive counterclaims). Even where the state has not affirmatively invoked the jurisdiction of the federal courts, its participation in litigation brought against it may result in waiver if the state’s participation is incompatible with an intent to preserve its sovereign immunity. In re Bliemeister, 296 F.3d at 860. 2. Is UI an Arm of the State for Purposes of Sovereign Immunity? UI asserts that it is an arm of the state for the purposes of sovereign immunity, relying on Seventh Circuit cases that have reached that conclusion. See Cannon v. Univ. of Health Scis./The Chicago Med. Sch., 710 F.2d 351, 356 (7th Cir.1983) (holding that claims against the Board of Trustees of the University of Illinois were barred by the Eleventh Amendment); Kroll v. Bd. of Trs. of Univ. of Ill., 934 F.2d 904, 908 (7th Cir.1991) (citing to Cannon and holding that Board of Trustees of the University of Illinois is a state agency and therefore subject to Eleventh Amendment immunity); see also Loeffler v. Univ. of Ill. at Chicago, 36 F.Supp.2d 1058 (N.D.Ill.1999) (citing to Cannon and holding that the University if Illinois is entitled to Eleventh Amendment immunity). Fujitsu argues that these cases do not apply the “searching multi-factor analysis that is required for a proper determination of whether an entity is the State” and that if such an analysis is applied, it points to the conclusion that the University of Illinois is not an arm of the state. The Court concludes that UI is an arm of the state of Illinois. In Cannon, 710 F.2d at 356, the Seventh Circuit held that UI is a state agency and therefore, entitled to Eleventh Amendment immunity. In support of this conclusion, the court cited a single state court decision, Elliott v. Univ. of Ill., 365 Ill. 338, 6 N.E.2d 647 (1936). The court also noted that the district court had relied on the “powers and duties” of the Board of" }, { "docid": "14452865", "title": "", "text": "LOKEN, Circuit Judge. Les Hadley filed this civil rights action under 42 U.S.C. § 1983 alleging that his former employer, North Arkansas Community Technical College (“NACTC”), violated his due process rights by summarily terminating him as a vocational instructor. NACTC moved for summary judgment, claiming that it is an arm of the State entitled to Eleventh Amendment immunity from this federal court damage action. The district court denied the motion, and we remanded for further consideration in light of Sherman v. Curators of Univ. of Mo., 16 F.3d 860 (8th Cir.1994), and Greenwood v. Ross, 778 F.2d 448 (8th Cir.1985). The court then concluded in a thorough opinion that NACTC is entitled to Eleventh Amendment immunity and dismissed Hadley’s claim. Hadley appeals. We affirm. I. The Eleventh Amendment immunizes an uneonsenting State from damage actions brought in federal court, except when Congress has abrogated that immunity for a particular federal cause of action. See generally Edelman v. Jordan, 415 U.S. 651, 94 S.Ct. 1347, 39 L.Ed.2d 662 (1974). Section 1983 does not override Eleventh Amendment immunity. See Will v. Michigan Dept. of State Police, 491 U.S. 58, 63, 109 S.Ct. 2304, 2308, 105 L.Ed.2d 45 (1989), construing Quern v. Jordan, 440 U.S. 332, 99 S.Ct. 1139, 59 L.Ed.2d 358 (1979). Therefore, if NACTC is entitled to the State of Arkansas’s Eleventh Amendment immunity, the district court properly dismissed Hadley’s claim. A state agency or official may invoke the State’s Eleventh Amendment immunity if immunity will “protect the state treasury from liability that would have had essentially the same practical consequences as a judgment against the State itself.” Pennhurst State Sch. & Hosp. v. Halderman, 465 U.S. 89, 123 n. 34, 104 S.Ct. 900, 920, 79 L.Ed.2d 67 (1984), quoting Lake Country Estates, Inc. v. Tahoe Reg. Planning Agency, 440 U.S. 391, 401, 99 S.Ct. 1171, 1177, 59 L.Ed.2d 401 (1979); see Ford Motor Co. v. Department of Treasury, 323 U.S. 459, 463-64, 65 S.Ct. 347, 350, 89 L.Ed. 389 (1945). On the other hand, Eleventh Amendment immunity does not extend to independent political subdivisions created by the State, such as" }, { "docid": "3124532", "title": "", "text": "has overturned such immunity in enacting specific legislation. Pennhurst, 465 U.S. at 99, 104 S.Ct. 900; College Savings Bank v. Florida Prepaid Postsecondary Education Expense Board, 527 U.S. 666, 670, 119 S.Ct. 2219, 144 L.Ed.2d 605 (1999). The Commonwealth of Pennsylvania has not waived its immunity in § 1983 civil rights cases (42 Pa.C.S.A. § 8521) and Congress did not abrogate state immunity in general in enacting civil rights legislation, including § 1983. Quern v. Jordan, 440 U.S. 332, 342, 99 S.Ct. 1139, 59 L.Ed.2d 358 (1979); Will v. Michigan Dept. of State Police, 491 U.S. 58, 66, 109 S.Ct. 2304, 105 L.Ed.2d 45 (1989). According to Defendant, the threshold question in considering the Motion to Dismiss is whether the University is an agency of the Commonwealth protected by the Eleventh Amendment. If an agency’s powers are “distinct and separate from those of the state,” it is not entitled to Eleventh Amendment sovereign immunity, but if it functions as an “arm” or “alter ego” of the state, it is entitled to such immunity. Wynne v. Shippensburg University of Pennsylvania, 639 F.Supp. 76, 82 (M.D.Pa.1985). Defendant asserts that by statute, Indiana University of Pennsylvania, one of the named State Universities, is immune from suit under the Eleventh Amendment. (Def.’s Reply Brief at 1.) I agree with Defendant’s position, including its assessment that this point is “well-settled.” In Skehan v. State System of Higher Educ., 815 F.2d 244 (3d Cir.1987), the Third Circuit Court of Appeals analyzed in detail the background of 24 P.S. §§ 20-2001 et seq., the statute which, in 1983, converted fourteen former Pennsylvania state colleges into universities and established their status as components of the State System of Higher Education (“SSHE”). The statute provides, in relevant part: Subject to the regulatory powers conferred by law upon the State Board of Education, there is hereby established a body corporate and politic constituting a public corporation and government instrumentality which shall be known as the State System of Higher Education, independent of the Department of Education, hereinafter referred to as the system, which shall consist of the following institutions and" }, { "docid": "16761149", "title": "", "text": "coach with Peirick’s qualities appears to have been an unprecedented event in IUPUI’s history. See Gordon v. United Airlines, Inc., 246 F.3d 878, 890 (7th Cir.2001) (taking unprecedented disciplinary action may be evidence of pretext). In sum, we find IUPUI’s post hoc explanations, delay, exaggeration, and unusual conduct more than enough to create a question of fact concerning the legitimacy of its explanations for Peirick’s termi nation. The district court should not have granted the defendants’ motion for summary judgment on Peirick’s gender discrimination claim. C. Summary Judgment Was Proper On Peirick’s Age Discrimination Claim, Because the Defendants Are Immune From Suit Peirick also charges IUPUI, the Athletics Department, and the Board of Trustees of Indiana University with violating the ADEA, which makes it unlawful for an employer to discriminate against an employee in the terms and conditions of her employment on the basis of age. 29 U.S.C. § 623(a)(1). Defendants counter that the Eleventh Amendment shields them from suit under the ADEA, and we agree. (They do not claim immunity from suit on Peirick’s gender discrimination claim, because Congress “validly abrogated the States’ Eleventh Amendment immunity with respect to Title VII disparate treatment claims.”) Nanda v. Bd. of Trs. of the Univ. of Ill., 303 F.3d 817, 831 (7th Cir.2002). At the outset, we note that the Athletics Department is not a legal entity apart from the University. It is merely a division of the University that is not capable of being sued. See Whiting v. Marathon County Sheriff’s Dep’t, 382 F.3d 700, 704 (7th Cir.2004) (“[T]he Marathon County Sheriffs Department is not a legal entity separable from the county government which it serves and is therefore, not subject to suit.”); West By & Through Norris v. Waymire, 114 F.3d 646-47 (7th Cir.1997) (“The naming of the Town’s Police Department as a defendant adds nothing; it is almost certainly not a suable entity separate from the Town.”). So we consider only whether IUPUI and the Board of Trustees of Indiana University enjoy Eleventh Amendment immunity. The Eleventh Amendment provides: “The Judicial power of the United States shall not be" }, { "docid": "12218805", "title": "", "text": "problems; (5) whether the entity has authority to sue and be sued in its own name; [and] (6) whether the entity has the right to hold and use property. Delahoussaye, 937 F.2d at 147. Before turning to these factors, however, we first address whether sovereign immunity bars Richardson’s federal and state-law claims. As to Richardson’s § 1983 claim, it is well established that only upon a showing that Congress expressly intended to abrogate sovereign immunity may we bypass the sovereign immunity inquiry in suits against States or their agencies. See Quern v. Jordan, 440 U.S. 332, 340-45, 99 S.Ct. 1139, 1144-47, 59 L.Ed.2d 358 (1979); McDonald, 832 F.2d at 906 n. 7. Congress has not expressly waived sovereign immunity for § 1983 suits. Quern, 440 U.S. at 340-45, 99 S.Ct. at 1144-47; Voisin’s Oyster House, 799 F.2d at 186. Richardson’s § 1983 suit is therefore subject to the Eleventh Amendment bar. The applicability of Eleventh Amendment immunity to Richardson’s state-law claim presents a slightly different question. In Hughes v. Savell, 902 F.2d 376 (5th Cir.1990), we held that the plaintiffs state-law claims against an employee of the State of Louisiana were barred by sovereign immunity. We analyzed Louisiana case law pertinent to the plaintiffs state-law based negligence cause of action and reasoned that despite the plaintiffs creative attempt at repackaging the nature of his suit, the plaintiffs claim was against the State of Louisiana and not the named defendant acting in his individual capacity. Id. at 378-79. Under these circumstances, we concluded that Eleventh Amendment immunity “bars such a suit in federal court since the action seeks recovery from the state based on the violation of state common law by the state’s agent.” Id. at 379. In this case, we need not engage in the Hughes analysis because Richardson has not sued any official from Southern University. Rather, Richardson’s state-law claims are against the University qua University. Accordingly, because Louisiana has not waived its sovereign immunity for suits brought in federal court, Richardson’s state-law claims are also subject to the Eleventh Amendment bar. In short, Richardson’s federal and state-law claims" }, { "docid": "16761150", "title": "", "text": "gender discrimination claim, because Congress “validly abrogated the States’ Eleventh Amendment immunity with respect to Title VII disparate treatment claims.”) Nanda v. Bd. of Trs. of the Univ. of Ill., 303 F.3d 817, 831 (7th Cir.2002). At the outset, we note that the Athletics Department is not a legal entity apart from the University. It is merely a division of the University that is not capable of being sued. See Whiting v. Marathon County Sheriff’s Dep’t, 382 F.3d 700, 704 (7th Cir.2004) (“[T]he Marathon County Sheriffs Department is not a legal entity separable from the county government which it serves and is therefore, not subject to suit.”); West By & Through Norris v. Waymire, 114 F.3d 646-47 (7th Cir.1997) (“The naming of the Town’s Police Department as a defendant adds nothing; it is almost certainly not a suable entity separate from the Town.”). So we consider only whether IUPUI and the Board of Trustees of Indiana University enjoy Eleventh Amendment immunity. The Eleventh Amendment provides: “The Judicial power of the United States shall not be construed to extend to any suit in law or equity, commenced or prosecuted against one of the United States by Citizens of another State, or by Citizens or Subjects of any Foreign State.” U.S. Const. Amend. XI. Although the Amendment speaks of suits filed by citizens of another state, the Supreme Court “has consistently held that an unconsenting State is immune from suits brought in federal courts by her own citizens as well as by citizens of another State.” Edelman v. Jordan, 415 U.S. 651, 662-63, 94 S.Ct. 1347, 39 L.Ed.2d 662 (1974) (internal citations omitted). The Amendment usually bars actions in federal court against a state, state agencies, or state officials acting in their official capacities, see Gossmeyer v. McDonald, 128 F.3d 481, 487 (7th Cir.1997), but three exceptions exist. First, a state may waive immunity by consenting to suit in federal court; second, Congress may abrogate the state’s immunity through a valid exercise of its powers; third, under the Ex parte Young doctrine, a plaintiff may file “suit[] against state officials seeking prospective" }, { "docid": "4298085", "title": "", "text": "POSNER, Circuit Judge. The plaintiff brought suit under 42 U.S.C. § 1983 complaining of having been subjected to cruel and unusual punishments while an inmate of an Illinois state prison. The defendants are the state and the state agency that operates the prisons. The suit alleged that the plaintiffs cell had been infested with mice and cockroaches and that a window pane was missing and as a result rain came into his cell through the window, and that a warden or assistant warden had done a “walk through” and seen that the pane was missing yet nothing had been done to replace it. The district judge dismissed the suit on alternative grounds: that the defendants were immune from suit by virtue of the Eleventh Amendment and that the plaintiffs complaint failed to allege any harm. The second ground is incorrect: the complaint alleges that allowing rain to enter the cell through the empty window frame created a health hazard. The judge was correct, however, that the Eleventh Amendment bars the suit. The suit is against a state and a state agency and Congress did not abrogate the states’ sovereign immunity from suit under section 1983, as it could have done. Will v. Michigan Dep’t of State Police, 491 U.S. 58, 66-70, 109 S.Ct. 2304, 105 L.Ed.2d 45 (1989); Quern v. Jordan, 440 U.S. 332, 345, 99 S.Ct. 1139, 59 L.Ed.2d 358 (1979) (“[section] 1983 does not explicitly and by clear language indicate on its face an intent to sweep away the immunity of the States; nor does it have a history which focuses directly on that question of state liability and which shows that Congress considered and firmly decided to abrogate the Eleventh Amendment immunity of the States”); Kroll v. Board of Trustees, 934 F.2d 904, 909 and n. 5 (7th Cir.1991); Power v. Summers, 226 F.3d 815, 818 (7th Cir.2000); Richard H. Fallon, Jr. et al., Hart & Wechsler’s The Federal Courts and the Federal System 1091 (5th ed. 2003). But the Will decision, supra, 491 U.S. at 70-71, 109 S.Ct. 2304, held that a state and its agencies" }, { "docid": "16761153", "title": "", "text": "University and IUPUI to be agencies of the state); see also Parco v. Trs. of Ind. Univ., 453 F.3d 390, 394-95 (7th Cir.2006); Kashani v. Purdue Univ., 813 F.2d 843, 844 (7th Cir.1987). And, as explained below, the Board of Trustees of Indiana University is an agency of the state. Many courts have held that the governing bodies of their state universities enjoy the same immunity from suit as the universities themselves. See Richardson v. Southern Univ., 118 F.3d 450, 455 (5th Cir.1997) (“Southern [University] and its Board are considered an agency of the State of Louisiana”); Hall v. Hawaii, 791 F.2d 759, 761 (9th Cir.1986) (holding that the University of Hawaii and its board of regents “are clearly immune as agencies of the state”); Harden v. Adams, 760 F.2d 1158, 1164 (11th Cir.1985) (noting that “the Board of Trustees of a state university is entitled to sovereign immunity as an instrumentality of the state”); Cannon v. Univ. of Health Sciences/Chi. Med. Sch., 710 F.2d 351, 356 (7th Cir.1983) (Southern Illinois University and the Board of Trustees of the University of Illinois are state agencies with Eleventh Amendment immunity); Wellman v. Tr. of Purdue Univ., 581 F.Supp. 1228, n. 1 (N.D.Ind.1984) (“[F]or purposes of Eleventh Amendment immunity, no distinction can, should, or will be drawn between Purdue University and its Board of Trustees.”); see also Joseph v. Bd. of Regents of the Univ. of Wis. Sys., 432 F.3d 746, 748 (7th Cir.2005) (“The [Wisconsin Board of Regents] is an ‘arm of the state’ for Eleventh Amendment purposes.”). So it seems to follow that the Board of Trustees of Indiana University, like the university, is a state agency. And an examination of the factors relevant for determining whether an entity is an agency of the state leads to that exact conclusion. In deciding whether an entity is an agency of the state, the most important factor is “the extent of the entity’s financial autonomy from the state.” Kashani, 813 F.2d at 845. That inquiry is composed of five subparts: (1) the extent of state funding; (2) the state’s oversight and control" }, { "docid": "16822847", "title": "", "text": "upon which relief can be granted. A. The Original Defendants The plaintiffs proposed amended complaint removed the Attorney General as a defendant and added damages claims against the three remaining original defendants: the State of Indiana, the Indiana Department of Corrections, and Superintendent Richards in his official capacity. In the absence of the state’s consent or a valid Congressional override, the Eleventh Amendment prohibits a suit in federal court “in which the State or one of its agencies or departments is named as the defendant.” Pennhurst State School & Hospital v. Halderman, 465 U.S. 89, 100, 104 S.Ct. 900, 908, 79 L.Ed.2d 67 (1984). See also Kroll v. Board of Trustees of University of Illinois, 934 F.2d 904, 907 (7th Cir.), cert. denied, — U.S. -, 112 S.Ct. 377, 116 L.Ed.2d 329 (1991). “This bar remains in effect when State officials are sued for damages in their official capacities.” Kentucky v. Graham, 473 U.S. 159, 169, 105 S.Ct. 3099, 3107, 87 L.Ed.2d 114 (1985) (citing Cory v. White, 457 U.S. 85, 90, 102 S.Ct. 2325, 2328, 72 L.Ed.2d 694 (1982); Edelman v. Jordan, 415 U.S. 651, 663, 94 S.Ct. 1347, 1355, 39 L.Ed.2d 662 (1974)). See also Meadows v. State of Indiana, 854 F.2d 1068, 1069 (7th Cir.1988). Als the State of Indiana has not consented to this suit and Congress did not override this immunity through the enactment of § 1983, Quern v. Jordan, 440 U.S. 332, 341, 99 S.Ct. 1139, 1145, 59 L.Ed.2d 358 (1979), the district court lacks subject matter jurisdiction with regard to any damage claims against the State of Indiana, the Indiana Department of Corrections, and Superintendent Richards in his official capacity. The proposed amended complaint seeks to add a separate claim for damages against Superintendent Richards in his individual capacity, an action outside the scope of Eleventh Amendment immunity. Nonetheless, a valid § 1983 claim for damages against a state supervisory official in his individual capacity requires “a showing of direct responsibility for the improper action.” Wolf-Lillie v. Sonquist, 699 F.2d 864, 869 (7th Cir.1983). In other words, “an individual cannot be held liable" }, { "docid": "20149754", "title": "", "text": "claims against Lisa Madigan in her official capacity under Counts I and II. ii. Plaintiffs Prayer for Relief in Counts I & II Next, the Entity Defendants move to dismiss Plaintiffs claim for emotional damages in Count I, arguing that the ADEA does not provide for such a remedy. 29 U.S.C. § 626(b); see also Franzoni v. Hartmarx Corp., 300 F.3d 767, 773 (7th Cir.2002). Plaintiff agrees, and the Court therefore dismisses Plaintiffs claim for damages for emotional distress in Count I. The Entity Defendants also move to dismiss Plaintiffs claim for emotional damages in excess of $300,000 in Count II, arguing that damages for violations of Title VII are capped at $300,000. 42 U.S.C. § 1981a(b)(3)(D); see also Smith v. Chicago School Reform Bd. of Trs., 165 F.3d 1142 (7th Cir.1999). Plaintiff does not dispute that the maximum recovery for emotional damages under Title VII is $300,000. However, without citing case law, Plaintiff argues.that he should be able to request more than $300,000 from the jury, though a verdict in excess of this amount may be reduced to conform to the statutory maximum. Because Plaintiff fails to cite a legal basis for his position, the Court dismisses his claim in Count II for emotional damages in excess of $300,000. iii. Plaintiffs Prayer for Relief in Counts III & IV The Entity Defendants move to dismiss Plaintiffs claims for monetary damages in Counts III and IV. Plaintiff, in response, concedes that the Entity Defendants may not be subject to suit for monetary damages under § 1983. The Eleventh Amendment prohibits private parties from filing a federal lawsuit against a state, state agency, or state official unless the state waives its Eleventh Amendment immunity by consenting to suit, or Congress unequivocally abrogates the state’s immunity. See Kroll v. Bd. of Trs. of the Univ. of Ill., 934 F.2d 904, 907 (7th Cir.1991). Illinois has not consented to suit in this case, and it is well-settled that Congress did not abrogate states’ sovereign immunity when it enacted § 1983. Quern v. Jordan, 440 U.S. 332, 342, 99 S.Ct. 1139, 59 L.Ed.2d 358" }, { "docid": "3421540", "title": "", "text": "v. Bd. of Regents of the Univ. of Wis. Sys., 288 F.3d 296, 299 (7th Cir. 2002) (“If this case was to be prosecuted in federal court, the EEOC had to do it. The individual charging parties were barred by the Eleventh Amendment from suing the state (and therefore the Board of Regents of the state university system).”). Joseph argues that Congress abrogated the Board’s immunity when passing § 1983. He cites three cases in support of his argument, none of which are convincing. The first, Vlandis v. Kline, 412 U.S. 441, 93 S.Ct. 2230, 37 L.Ed.2d 63 (1973), was a § 1983 suit involving a public university. That case does not, however, “definitively rule[] that students have the right under § 1983 to sue a state university,” as Joseph claims. The plaintiffs in that case sued the director of admissions as an individual, and therefore the Eleventh Amendment was not implicated. Joseph misplaces his reliance on Gratz v. Bollinger, 539 U.S. 244, 123 S.Ct. 2411, 156 L.Ed.2d 257 (2003), as well. The plaintiffs in that case sued under a law in which Congress has specifically abrogated the states’ Eleventh Amendment rights. Gratz, 539 U.S. at 259 n. 10, 123 S.Ct. 2411; 42 U.S.C. § 2000d-7(a)(l). The Supreme Court has expressly held that Congress has not abrogated the states’ immunity in § 1983 suits. Quern v. Jordan, 440 U.S. 332, 341-45, 99 S.Ct. 1139, 59 L.Ed.2d 358 (1979). Finally, Joseph relies on Monell v. Dep’t of Social Services, 436 U.S. 658, 98 S.Ct. 2018, 56 L.Ed.2d 611 (1978), to support his position. The Court has been clear, however, that Monell’s holding applies only to municipal ities and not states or states’ departments. Will, 491 U.S. at 70, 109 S.Ct. 2304 (“[W]e consequently limited our holding in Monell to local government units which are not considered part of the state for Eleventh Amendment purposes.” (internal quotation marks omitted) (citing Monell, 436 U.S. at 690, n. 54, 98 S.Ct. 2018)). Because the Board is an “arm of the state” and Congress has not abrogated its immunity in § 1983 actions, this suit" } ]

[ { "docid": "22457241", "title": "", "text": "and in losing those requests. Fortunately, Britton and the government were able to reconstruct sixteen of the requests. Of those sixteen, twelve were substantially covered, implicitly or explicitly, in the instructions given the jury; and four were inapplicable to the evidence. Although we can neither comprehend nor condone the loss of the requested instructions, it does not appear that such loss prejudiced Britton’s substantial rights. The district judge’s instructions fairly posed the jury issues, only two requested instructions remain missing, and Britton has made no claim that those missing requests differ substantially from the other sixteen which the district judge properly denied. We are unwilling to reverse in such circumstances. Compare United States v. Perry, 153 U.S.App.D.C. 89, 471 F.2d 1057 (1972) (unexplained loss of one witness’ grand jury testimony needed for Jencks Act compliance). Mitchell and Britton claim that the court order compelling them to give voice exemplars violated their constitutional right against unreasonable searches and seizures and their constitutional privilege against self-incrimination. United States v. Dionisio, 410 U.S. 1, 93 S.Ct. 764, 35 L.Ed.2d 67 (1973), established that compelling voiceprints even of the same words used in the crime does not violate the constitutional privilege against self-incrimination. Accord, United States v. Rogers, 475 F.2d 821, 825-826 (7th Cir. 1973). Moreover, compelling a voiceprint is neither a “search” nor a “seizure.” Dionisio, 410 U.S. at 14-15, 93 S.Ct. 764. We reject Mitchell’s attempt to limit Dionisio to the grand jury context in that, so long as the underlying seizure of the person is proper, requiring that person to submit voice exemplars violates no constitutional right. See United States v. Rogers, 475 F.2d 821 (7th Cir. 1973) (court-ordered submission); United States v. Sanders, 477 F.2d 112 (5th Cir.), cert. denied, 414 U.S. 870, 94 S.Ct. 88, 38 L.Ed.2d 88 (1973) (legally in custody on another matter). We also reject Mitchell’s claim that the order requiring the voice exemplars, almost seven months subsequent to his arrest, came too late. See United States v. Lincoln, 494 F.2d 833 (9th Cir. 1974) (compulsion of handwriting exemplar less than one week pri- or to" } ]

[ { "docid": "15262560", "title": "", "text": "384 U.S. 757, 763-764, 86 S.Ct. 1826, 1833, 16 L.Ed.2d 908. One’s voice and handwriting are, of course, means of communication. It by no means follows, however, that every compulsion of an accused to use his voice or write compels a communication within the cover of the privilege. A mere handwriting exemplar, in contrast to the content of what is written, like the voice or body itself, is an identifying physical characteristic outside its protection. United States v. Wade, [388 U.S. 218] at 222-223, 87 S.Ct. [1926] at 1929-1930 [18 L.Ed.2d 1149]. 388 U.S. at 266-267, 87 S.Ct. at 1953. Thereafter in United States v. Dionisio, 410 U.S. 1, 93 S.Ct. 764, 35 L.Ed.2d 67 (1973), in a case involving voice exemplars, the same Court noted: Wade and Gilbert definitively refute any contention that the compelled production of the voice exemplars in this case would violate the Fifth Amendment. The voice recordings were to be used solely to measure the physical properties of the witnesses’ voices, not for the testimonial or communicative content of what was to be said. 410 U.S. at 7, 93 S.Ct. at 768. And in the companion case of United States v. Mara, 410 U.S. 19, 93 S.Ct. 774, 35 L.Ed.2d 99 (1973), the Court, in the case of a potential defendant who was directed by a subpoena to produce handwriting and printing exemplars, held that: We have held today in Dionisio, that a grand jury subpoena is not a “seizure” within the meaning of the Fourth Amendment and, further, that that Amendment is not violated by a grand jury directive compelling production of “physical characteristics” that are “constantly exposed to the public.” Supra, [410 U.S.] at 9-10, 93 S.Ct., at 769. Handwriting, like speech, is repeatedly shown to the public, and there is no more expectation of privacy in the physical characteristics of a person’s script than there is in the tone of his voice. See United States v. Doe (Schwartz), 2 Cir., 457 F.2d 895, 898-899; Bradford v. United States, 5 Cir., 413 F.2d 467, 471-472; cf. Gilbert v. California, 388 U.S. 263, 266-267," }, { "docid": "15262563", "title": "", "text": "upheld, the “primary assumption” was that a summoned party must “give what testimony one is capable of giving” absent an exemption “grounded in a substantial individual interest which has been found, through centuries of experience, to outweigh the public interest in the search for truth.” Ibid. One application of this broad duty to provide relevant evidence has been the recognition, since early times, of an obligation to provide certain forms of nontes-timonial physical evidence.7 In Holt v. United States, 218 U.S. 245, 252-253, 31 S.Ct. 2, 6, 54 L.Ed. 1021 (1910) (Holmes, J.), the Court found that the common-law evidentiary duty permitted the compulsion of various forms of physical evidence. In Schmerber v. California, 384 U.S. 757, 764, 86 S.Ct. 1826, 1832, 16 L.Ed.2d 908 (1966), this Court observed that traditionally witnesses could be compelled, in both state and federal courts, to submit to “fingerprinting, photographing, or measurements, to write or speak for identification, to appear in court, to stand, to assume a stance, to walk, or to make a particular gesture.” See also United States v. Wade, 388 U.S. 218, 87 S.Ct. 1926, 18 L.Ed.2d 1149 (1967). In Gilbert v. California, 388 U.S. 263, 266-267, 87 S.Ct. 1951, 1953, 18 L.Ed.2d 1178 (1967), handwriting was held, “like the . .. body itself” to be an “identifying physical characteristic,” subject to production. In United States v. Dionisio, 410 U.S. 1, 93 S.Ct. 764, 35 L.Ed.2d 67 (1973), and United States v. Mara, 410 U.S. 19, 93 S.Ct. 774, 35 L.Ed.2d 99 (1973), this Court again confirmed that handwriting is in the nature of physical evidence which can be compelled by a grand jury in the exercise of its subpoena power. See also United States v. Mullaney, 32 F. 370 (CC Mo.1887). % ■%. sf: s{: % Nor is there any constitutional privilege of the taxpayer or other parties that is violated by this construction. Compulsion of handwriting exemplars is neither a search or seizure subject to Fourth Amendment protections, United States v. Mara, 410 U.S. 19, 93 S.Ct. 774, 35 L.Ed.2d 99 (1973), nor testimonial evidence protected by the Fifth" }, { "docid": "15262565", "title": "", "text": "Amendment privilege against self-incrimination. Gilbert v. California, 388 U.S. 263, 87 S.Ct. 1951, 18 L.Ed.2d 1178 (1967). The compulsion of handwriting exemplars has been the subject of far less protection than the compulsion of testimony and documents.13 444 U.S. at 712-713 and 718, 100 S.Ct. at 878-879 and 881 (Footnotes omitted). These authorities make it clear that (as here) a subpoena may be issued under Rule 17(c) of the Federal Rules of Criminal Procedure for the production of handwriting exemplars without calling for testimony or communications and that the mere giving of exemplars to be used solely as a standard for comparison in order to determine whether the witness is the author of certain writings, constitutes non-testimonial physical evidence. It does not constitute testimony or testimonial communications unless it comprises “the content as opposed to the physical character of [the] writing.” United States v. Mara, 410 U.S. at 22, 93 S.Ct. at 776 footnote. The Government seeks here only the physical character of the writing. The marital adverse testimony privilege, on which Mr. and Mrs. McKeon rely, is a rule in the Federal courts which grants to the witness-spouse alone the privilege of refusing to testify against a defendant spouse. Relying on Gilbert v. California, supra, two Federal District Courts have held that “The rule does not prohibit giving non-testimonial evidence against a spouse nor otherwise generally protect one spouse being used as the source of evidence against the other. The Supreme Court has held that handwriting exemplars are neither communicative nor testimonial * * * » In re Clark, 461 F.Supp. 1149 (S.D.N.Y.1978). See also In re Grand Jury Proceedings, Rovner, 377 F.Supp. 954 (E.D.Pa.), aff’d mem, 500 F.2d 1400 (3d Cir.1974), cert. denied, 419 U.S. 1106, 95 S.Ct. 776, 42 L.Ed.2d 802 (1975). Thus, given the United States Supreme Court’s view that handwriting exemplars (as opposed to the content of same) are neither communicative nor testimonial, it follows that the marital adverse testimony privilege does not preclude a Rule 17(c) subpoena therefor. Moreover, although the privilege does apply to any questions to the witness-spouse with respect to the" }, { "docid": "6481743", "title": "", "text": "Government then moved in open court, with supporting affidavits, that Rogers be compelled to execute exemplars in the form objected to by Rogers. The court so ordered and Rogers complied. Rogers then sought an order suppressing use of those exemplars at trial, which motion the court denied. Apparently Rogers did not renew his objection when the exemplars were used at trial, although he reasserts the claim on appeal. Defendant by his actions has not waived his right to raise on appeal his pretrial objection. Whitlow, supra. Rogers does not appear to argue that no exemplar constitutionally could be required of him, and it is clear that such argument could not succeed. No question of right to counsel is raised in this case, and a general Fifth Amendment attack is answered by the Supreme Court’s ruling in Gilbert v. California, 388 U.S. 263, 266-267, 87 S.Ct. 1951, 1953, 18 L.Ed.2d 1178 (1967): “[A] mere handwriting exemplar, in contrast to the content of what is written, like the voice or body itself, is an identifying physical characteristic outside [the Fifth Amendment’s] protection.” As for Fourth Amendment rights, the Supreme Court has recently held that handwriting exemplars taken alone are outside the scope of the Fourth Amendment’s protection because a person has no reasonable expectation of privacy regarding his handwriting. United States v. Mara, 410 U.S. 19, 93 S.Ct. 774, 35 L.Ed.2d 99 (1973), rev’g, 454 F.2d 580 (7th Cir. 1971). See also United States v. Dionisio, 410 U.S. 1, 93 S.Ct. 764, 35 L.Ed.2d 67 (1973), rev’g in part, aff’g in part, 442 F.2d 276 (7th Cir. 1971). Moreover, there is no suggestion in the record that the exemplars were the fruit of an independently illegal seizure such as that in Davis v. Mississppi, 394 U.S. 721, 89 S.Ct. 1394, 22 L.Ed.2d 676 (1969). The appellant’s argument that it was error for the trial court to require that exemplars be in the form of allegedly forged words also has been answered by the Supreme Court and is without merit. In Dionisio, the defendant was ordered by the district court to give a" }, { "docid": "15262564", "title": "", "text": "States v. Wade, 388 U.S. 218, 87 S.Ct. 1926, 18 L.Ed.2d 1149 (1967). In Gilbert v. California, 388 U.S. 263, 266-267, 87 S.Ct. 1951, 1953, 18 L.Ed.2d 1178 (1967), handwriting was held, “like the . .. body itself” to be an “identifying physical characteristic,” subject to production. In United States v. Dionisio, 410 U.S. 1, 93 S.Ct. 764, 35 L.Ed.2d 67 (1973), and United States v. Mara, 410 U.S. 19, 93 S.Ct. 774, 35 L.Ed.2d 99 (1973), this Court again confirmed that handwriting is in the nature of physical evidence which can be compelled by a grand jury in the exercise of its subpoena power. See also United States v. Mullaney, 32 F. 370 (CC Mo.1887). % ■%. sf: s{: % Nor is there any constitutional privilege of the taxpayer or other parties that is violated by this construction. Compulsion of handwriting exemplars is neither a search or seizure subject to Fourth Amendment protections, United States v. Mara, 410 U.S. 19, 93 S.Ct. 774, 35 L.Ed.2d 99 (1973), nor testimonial evidence protected by the Fifth Amendment privilege against self-incrimination. Gilbert v. California, 388 U.S. 263, 87 S.Ct. 1951, 18 L.Ed.2d 1178 (1967). The compulsion of handwriting exemplars has been the subject of far less protection than the compulsion of testimony and documents.13 444 U.S. at 712-713 and 718, 100 S.Ct. at 878-879 and 881 (Footnotes omitted). These authorities make it clear that (as here) a subpoena may be issued under Rule 17(c) of the Federal Rules of Criminal Procedure for the production of handwriting exemplars without calling for testimony or communications and that the mere giving of exemplars to be used solely as a standard for comparison in order to determine whether the witness is the author of certain writings, constitutes non-testimonial physical evidence. It does not constitute testimony or testimonial communications unless it comprises “the content as opposed to the physical character of [the] writing.” United States v. Mara, 410 U.S. at 22, 93 S.Ct. at 776 footnote. The Government seeks here only the physical character of the writing. The marital adverse testimony privilege, on which Mr. and Mrs." }, { "docid": "6481745", "title": "", "text": "voice exemplar in the exact words of a telephone conversation taped by the Government. The Court found this constitutional, stating: It has long been held that the compelled display of identifiable physical characteristics infringes no interest protected by the privilege against compulsory self-incrimination. “[T]he prohibition of compelling a man in a criminal court to be witness against himself is a prohibition of the use of physical or moral compulsion to extort communications from him, not an exclusion of his body as evidence when it may be material.” . . . Wade (United States v. Wade, 388 U.S. 218, 87 S.Ct. 1926, 18 L.Ed.2d 1149 (1967)) and Gilbert definitively refute any contention that the compelled production of the voice ex emplars in this case would violate the Fifth Amendment. The voice recordings were to be used solely to measure the physical properties of the witnesses’ voices, not for the testimonial or communicative content of what was to be said. Id., at 5 of 410 U.S., 93 S.Ct. at 767, quoting Holt v. United States, 218 U.S. 245, 252, 31 S.Ct. 2, 6, 54 L.Ed. 1021 (1910). The present case is indistinguishable . from Dionisio on legal grounds. While Dionisio dealt with voice exemplars and the exemplars in the instant case are handwritten, the Court in Dionisio, as in the other leading cases on point (Mara, Gilbert, Wade), dealt with such exemplars interchangeably and without constitutional differentiation. Moreover, in the instant case the exemplars were to be used only as a standard of comparison, and the trial transcript shows that both prosecutor and handwriting expert strictly limited themselves to such use. Defendant argues on nonconstitutional grounds that the exemplar ordered was unduly prejudicial at trial. However, it is the trial court’s duty to weigh the potential prejudice from overemphasis against the usefulness of the exemplars for handwriting analysis. We cannot say that the trial court abused its discretion. Cf. United States v. Izzi, 427 F.2d 293, 295 (2d Cir.), cert. den., 399 U.S. 928, 90 S.Ct. 2244, 26 L.Ed.2d 794 (1970); Fountain v. United States, 384 F.2d 624, 632 (5th Cir. 1967)," }, { "docid": "15262561", "title": "", "text": "was to be said. 410 U.S. at 7, 93 S.Ct. at 768. And in the companion case of United States v. Mara, 410 U.S. 19, 93 S.Ct. 774, 35 L.Ed.2d 99 (1973), the Court, in the case of a potential defendant who was directed by a subpoena to produce handwriting and printing exemplars, held that: We have held today in Dionisio, that a grand jury subpoena is not a “seizure” within the meaning of the Fourth Amendment and, further, that that Amendment is not violated by a grand jury directive compelling production of “physical characteristics” that are “constantly exposed to the public.” Supra, [410 U.S.] at 9-10, 93 S.Ct., at 769. Handwriting, like speech, is repeatedly shown to the public, and there is no more expectation of privacy in the physical characteristics of a person’s script than there is in the tone of his voice. See United States v. Doe (Schwartz), 2 Cir., 457 F.2d 895, 898-899; Bradford v. United States, 5 Cir., 413 F.2d 467, 471-472; cf. Gilbert v. California, 388 U.S. 263, 266-267, 87 S.Ct. 1951, 1953-1954, 18 L.Ed.2d 1178. 410 U.S. at 21-22, 93 S.Ct. at 775-776. In its most recent discussion of this question in United States v. Euge, 444 U.S. 707, 100 S.Ct. 874, 63 L.Ed.2d 141 (1980), the Supreme Court summarized the law with respect to the difference between “testimonial” and “non-testimonial” evidence as follows: The scope of the “testimonial”6 or evidentiary duty imposed by common law or statute has traditionally been interpreted as an expansive duty limited principally by relevance and privilege. As this Court described the contours of the duty in United States v. Bryan, 339 U.S. 323, 331, 70 S.Ct. 724, 730, 94 L.Ed. 884 (1950): “[P]ersons summoned as witnesses by competent authority have certain minimum duties and obligations which are necessary concessions to. the public interest in the orderly operation of legislative and judicial machinery.... We have often iterated the importance of this public duty, which every person within the jurisdiction of the Government is bound to perform when properly summoned.” While the Court recognized that certain exemptions would be" }, { "docid": "14025155", "title": "", "text": "a document already in its possession, and that its sole purpose in requesting the samples was to make legitimate investigative comparisons with documents that may contain her handwriting and lead to the “discovery or further gathering of evidence of criminal offenses.” Finally the court decided it would not apply the Schofield I procedure “. until the Fifth Circuit says that I must . ” The Court found that the government had made a sufficient showing that there was no abuse of the grand jury process. The court ruled Ms. McLean in civil contempt under 28 U.S.C. § 1826 and that even though she had been granted immunity the handwriting exemplars were not included. We affirm. Schofield I recognized that United States v. Dionisio, 410 U.S. 1, 93 S.Ct. 764, 35 L.Ed.2d 67 (1973), and United States v. Mara, 410 U.S. 19, 93 S.Ct. 774, 35 L.Ed.2d 99 (1973), “[bjoth hold that the fourth amendment does not require any preliminary showing for the issuance of a grand jury subpoena, either to compel testimony, or to compel production of voice or handwriting exemplars.” 486 F.2d at 89. But the Third Circuit distinguished between an adjudication based on constitutional principles and one “involv[ing] the district court’s supervisory power over the proper use of its process in a grand 'jury proceeding, the supervisory power of this court over the manner in which the district court supervises the proper use of its process, or the substantive and procedural law of civil contempt.” Ibid. The Third Circuit made it clear that the guidelines it set were to be the law in that circuit and not required by the Constitution or the Supreme Court. We are not prepared to make such the law in the Fifth. As noted by the Supreme Court: Any holding that would saddle a grand jury with mini-trials and preliminary showings would assuredly impede its investigation and frustrate the public’s interest in the fair and expeditious administration of the criminal laws. United States v. Dionisio, 410 U.S. 1, 17, 93 S.Ct. 764, 773 (1973). In the absence of a witness asserting harassment or" }, { "docid": "3187835", "title": "", "text": "States Attorney for the sole purpose of comparing handwriting. No part of the writing was to be used for any other purpose and no part of the text was to be used for any purpose except the comparison of handwriting. Patrick Mertens moved to suppress introduction of the evidence for any purpose. Mertens based this motion on claims of violation of the right of protection against unreasonable search and seizure under the 4th Amendment, the rights to be protected against compulsory self-incrimination under the 5th Amendment and the privilege of confidentiality of communication between lawyer and client. Requiring a defendant to produce examples of his handwriting does not violate the privilege against self-incrimination under the 5th Amendment: “A mere handwriting exemplar, in contrast to the contents of what is written, like the voice or body itself, is an identifying physical characteristic outside its protection.” Gilbert v. California, 388 U.S. 263, at pp. 266-267, 87 S.Ct. 1951, at p. 1953, 18 L.Ed. 2d 1178 (1967). There is no violation of 4th Amendment protection against unreasonable search and seizure by compelling the production of handwriting exemplars. United States v. Dionisio, 410 U.S. 1, 93 S.Ct. 764, 35 L.Ed.2d 67 (1973); Katz v. United States, 389 U.S. 347, 88 S.Ct. 507, 19 L.Ed.2d 576 (1967); United States v. Doe (Schwartz) 457 F.2d 895, 898-899 (3rd Cir. 1972). There is no violation of the protection against unreasonable search and seizure when the objects seized are in plain view of a person lawfully present at the moment of the view. The papers were not in a place protected by the 4th Amendment. They were visible in the hands of a spectator in a public courtroom. They were not concealed upon the person of the spectator requiring a search. Thus we have no question as to whether the exigencies of the situation would require a warrant. Such a doctrine applies only when there ' is a claim of “plain view” of the object seized where otherwise a warrant would be required, such as a seizure connected with an arrest of a suspect. Fed.R.Cr.P. 17(c) allows the" }, { "docid": "23254399", "title": "", "text": "supposedly developed. We also quickly dispose of Liberatore’s arguments that the order adjudging him in contempt was erroneously entered because the government failed to make preliminary showings of the relevance and necessity of the fingerprints and handwriting exemplars sought by the grand jury. As to the purported requirement that the government make a preliminary showing of the relevance of the prints and the exemplars, we find that, first of all, at the hearing held to consider whether Liberatore should be adjudged in contempt of court, Liberatore did not raise his contention that the government must bear the burden of making a preliminary showing of the relevance of the prints and the handwriting exemplars sought by the grand jury, and the point has therefore not been properly preserved for presentation on appeal here. E. g., In re Grand Jury Investigation (Appeal of Hartzell), supra, 542 F.2d at 168. However, in view of the recurrent nature of the problem, and inasmuch as “the proper resolution [of the issue] is beyond any doubt,” Singleton v. Wulff, 428 U.S. 106, 121, 96 S.Ct. 2868, 2877, 49 L.Ed.2d 826 (1976); accord, Turner v. City of Memphis, 369 U.S. 350, 82 S.Ct. 805, 7 L.Ed.2d 762 (1962), it is perhaps advisable for us to reach the merits and confirm what should be manifest from recent decisions in this circuit and in the United States Supreme Court. Specifically, it is abundantly clear after our own decision in United States v. Doe (Schwartz), 457 F.2d 895, 899-901 (2d Cir. 1972) (Friendly, C. J.), cert. denied, 410 U.S. 941, 93 S.Ct. 1376, 35 L.Ed.2d 608 (1973), and the Supreme Court’s rulings in United States v. Mara, 410 U.S. 19, 21-22, 93 S.Ct. 774, 35 L.Ed.2d 99 (1973), and United States v. Dionisio, 410 U.S. 1, 15-18, 93 S.Ct. 764, 35 L.Ed.2d 67 (1973), that, under prevailing constitutional standards, the government has no burden whatever to make a preliminary showing that handwriting or voice exemplars or fingerprints are relevant to a grand jury investigation then in progress, for the compelled production of such evidence implicates no constitutional rights and “[a]ny" }, { "docid": "15262559", "title": "", "text": "risk of a possible indictment against her. In view of the relevance and materiality of the matter sought, the Government’s application is clearly made in good faith, is not part of a general fishing expedition and is not made to harass the movants herein. Mr. and Mrs. McKeon nonetheless contend that the requested exemplars will not be admissible at the trial and production of the same will require “testimony” from Mrs. McKeon in violation of her marital privilege. The Supreme Court, however, has indicated otherwise. In Gilbert v. State of California, 388 U.S. 263, 87 S.Ct. 1951, 18 L.Ed.2d 1178 (1967), that Court held: First. The taking of the exemplars did not violate petitioner’s Fifth Amendment privilege against self-incrimination. The privilege reaches only compulsion of “an accused’s communications, whatever form they might take, and the compulsion of responses which are also communications, for example, compliance with a subpoena to produce one’s papers,” and not* “compulsion which makes a suspect or accused the source of ‘real or physical evidence’ * * Sehmerber v. State of California, 384 U.S. 757, 763-764, 86 S.Ct. 1826, 1833, 16 L.Ed.2d 908. One’s voice and handwriting are, of course, means of communication. It by no means follows, however, that every compulsion of an accused to use his voice or write compels a communication within the cover of the privilege. A mere handwriting exemplar, in contrast to the content of what is written, like the voice or body itself, is an identifying physical characteristic outside its protection. United States v. Wade, [388 U.S. 218] at 222-223, 87 S.Ct. [1926] at 1929-1930 [18 L.Ed.2d 1149]. 388 U.S. at 266-267, 87 S.Ct. at 1953. Thereafter in United States v. Dionisio, 410 U.S. 1, 93 S.Ct. 764, 35 L.Ed.2d 67 (1973), in a case involving voice exemplars, the same Court noted: Wade and Gilbert definitively refute any contention that the compelled production of the voice exemplars in this case would violate the Fifth Amendment. The voice recordings were to be used solely to measure the physical properties of the witnesses’ voices, not for the testimonial or communicative content of what" }, { "docid": "10252342", "title": "", "text": "or seizure is unreasonable depends upon the particular facts and circumstances of each case, with an exact formula to determine reasonableness being impossible to formulate. Chimel v. California, 395 U.S. 752, 89 S.Ct. 2034, 23 L.Ed.2d 685 (1969); Smith v. United States, 103 U.S.App.D.C. 48, 254 F.2d 751 (1958), cert. denied, 357 U.S. 937, 78 S.Ct. 1388, 2 L.Ed.2d 1552 (1958). The narrow issues presented for determination by the Government’s petition are (1) whether a compelled handwriting exampiar comes within the search and seizure provisions of the Fourth Amendment and, if the answer to this question is in the affirmative, (2) whether the ordering of the exemplars would be an unreasonable search and seizure. I The issue of whether the Constitution prohibits the Government from compelling an individual to produce handwriting exemplars or from using such forced exemplars in a criminal trial has come to the fore in recent years. Decisions of the United States Supreme Court clearly indicate that the Fifth Amendment does not prohibit the compelling or using of such exemplars and that handwriting is not a personal communication of a defendant but rather “an identifying physical characteristic.” United States v. Wade, 388 U.S. 218, 222-223, 87 S.Ct. 1926, 18 L.Ed.2d 1149 (1967); Gilbert v. California, 388 U.S. 263, 266-267, 87 S.Ct. 1951, 18 L.Ed.2d 1178 (1967); cf., Schmerber v. California, 384 U.S. 757, 86 S.Ct. 1826, 16 L.Ed.2d 908 (1966). As to the relationship of compelled handwriting exemplars to the Fourth Amendment, all doubts as to the application of this Amendment to physical evidence seized from an individual which is merely an element of his physical characteristics were resolved by the Supreme Court in Davis v. Mississippi, 394 U.S. 721, 89 S.Ct. 1394, 22 L.Ed.2d 676 (1969). In that case, the Supreme Court established that law enforcement officials may not compel the production of physical evidence, absent a showing of the reasonableness of the seizure, even if that physical evidence is an element of an individual’s physical characteristics such as fingerprint evidence. The Court stated: “ * * * (W)e find no merit in the suggestion *" }, { "docid": "6481742", "title": "", "text": "was done in United States v. Whitlow, 339 F.2d 975, 980 (7th Cir. 1964). Moreover, the Government did not lead him to believe that further evidence would be forthcoming on the question of interstate movement of the documents. Hence, Rogers has waived his hearsay objection. Diaz v. United States, 223 U.S. 442, 450, 32 S.Ct. 250, 252, 56 L.Ed. 500 (1912); Gibson v. Elgin, Joliet & Eastern Railway Co., 246 F.2d 834, 836 (7th Cir.) (relying upon Diaz), cert. den., 355 U.S. 897, 78 S.Ct. 270, 2 L.Ed.2d 193 (1957); American Rubber Products Corp. v. NLRB, 214 F.2d 47, 51-52 (7th Cir. 1954) (relying upon Diaz); United States v. Rosenberg, 195 F.2d 583, 596 (2d Cir.), cert. den., 344 U.S. 838, 73 S.Ct. 20, 97 L.Ed. 652 (1952). II. Handwriting Exemplars After indictment, but before trial, the Government sought a court order requiring that defendant Rogers execute examples of his handwriting. The court so ordered, and Rogers agreed to give examples in any form except the names and addresses used on the forged documents. The Government then moved in open court, with supporting affidavits, that Rogers be compelled to execute exemplars in the form objected to by Rogers. The court so ordered and Rogers complied. Rogers then sought an order suppressing use of those exemplars at trial, which motion the court denied. Apparently Rogers did not renew his objection when the exemplars were used at trial, although he reasserts the claim on appeal. Defendant by his actions has not waived his right to raise on appeal his pretrial objection. Whitlow, supra. Rogers does not appear to argue that no exemplar constitutionally could be required of him, and it is clear that such argument could not succeed. No question of right to counsel is raised in this case, and a general Fifth Amendment attack is answered by the Supreme Court’s ruling in Gilbert v. California, 388 U.S. 263, 266-267, 87 S.Ct. 1951, 1953, 18 L.Ed.2d 1178 (1967): “[A] mere handwriting exemplar, in contrast to the content of what is written, like the voice or body itself, is an identifying physical characteristic" }, { "docid": "6481744", "title": "", "text": "outside [the Fifth Amendment’s] protection.” As for Fourth Amendment rights, the Supreme Court has recently held that handwriting exemplars taken alone are outside the scope of the Fourth Amendment’s protection because a person has no reasonable expectation of privacy regarding his handwriting. United States v. Mara, 410 U.S. 19, 93 S.Ct. 774, 35 L.Ed.2d 99 (1973), rev’g, 454 F.2d 580 (7th Cir. 1971). See also United States v. Dionisio, 410 U.S. 1, 93 S.Ct. 764, 35 L.Ed.2d 67 (1973), rev’g in part, aff’g in part, 442 F.2d 276 (7th Cir. 1971). Moreover, there is no suggestion in the record that the exemplars were the fruit of an independently illegal seizure such as that in Davis v. Mississppi, 394 U.S. 721, 89 S.Ct. 1394, 22 L.Ed.2d 676 (1969). The appellant’s argument that it was error for the trial court to require that exemplars be in the form of allegedly forged words also has been answered by the Supreme Court and is without merit. In Dionisio, the defendant was ordered by the district court to give a voice exemplar in the exact words of a telephone conversation taped by the Government. The Court found this constitutional, stating: It has long been held that the compelled display of identifiable physical characteristics infringes no interest protected by the privilege against compulsory self-incrimination. “[T]he prohibition of compelling a man in a criminal court to be witness against himself is a prohibition of the use of physical or moral compulsion to extort communications from him, not an exclusion of his body as evidence when it may be material.” . . . Wade (United States v. Wade, 388 U.S. 218, 87 S.Ct. 1926, 18 L.Ed.2d 1149 (1967)) and Gilbert definitively refute any contention that the compelled production of the voice ex emplars in this case would violate the Fifth Amendment. The voice recordings were to be used solely to measure the physical properties of the witnesses’ voices, not for the testimonial or communicative content of what was to be said. Id., at 5 of 410 U.S., 93 S.Ct. at 767, quoting Holt v. United States, 218 U.S." }, { "docid": "14311214", "title": "", "text": "ink printing is more akin to the production of voice, handwriting, or hair exemplars, which fall outside the ambit of the Fourth Amendment, see United States v. Dionisio, 410 U.S. 1, 93 S.Ct. 764, 35 L.Ed.2d 67 (1973); United States v. Mara, 410 U.S. 19, 93 S.Ct. 774, 35 L.Ed.2d 99 (1973); In re Grand Jury Proceedings (Mills), 686 F.2d 135 (3d Cir.), cert. denied, 459 U.S. 1020, 103 S.Ct. 386, 74 L.Ed.2d 517 (1982), or to the production of blood samples and fingernail scrapings, which fall within the Fourth Amendment’s requirement of reasonableness, see Schmerber v. California, 384 U.S. 757, 86 S.Ct. 1826, 16 L.Ed.2d 908 (1966); Cupp v. Murphy, 412 U.S. 291, 93 S.Ct. 2000 (1973). Our review of these decisions, and their underlying rationale, indicates that it is more like the former than the latter — that is, the grand jury’s directive that Ferri submit his feet and shoes for ink printing did not constitute a “search” of his person. In Dionisio and Mara, the Supreme Court held that neither the summons to appear before the grand jury nor its directive to provide voice and handwriting exemplars “infringed upon any interest protected by the Fourth Amendment.” Dionisio, 410 U.S. at 15, 93 S.Ct. at 772; Mara, 410 U.S. at 21, 93 S.Ct. at 775. The Court thus refused to require any preliminary showing of “reasonableness” by the government before the grand jury could compel a witness to produce the relevant physical evidence — a requirement even less onerous than a showing of probable cause, the standard advanced herein by Ferri. See In re September 1971 Grand Jury (Mara), 454 F.2d 580, 584 & n. 5 (7th Cir.1971); see also In re Grand Jury Proceedings (Mills), 686 F.2d at 138 (3d Cir.1982) (observing that “the Court of Appeals [in Dionisio and Mara ] had held that the government must first make a showing of need for the exemplars which was ‘reasonable’ albeit not necessarily synonymous with probable cause”). The Court reasoned that voice and handwriting exemplars are not protected because “the Fourth Amendment provides no protection for what" }, { "docid": "7609498", "title": "", "text": "and was told that it could convict defendant of intent to sell cocaine other than the found residue if it concluded that he had had further cocaine for sale within a reasonable time of the date stated in the indictment. As to this we find no error. Where the time of an offense is not important, it may be alleged generally, and “on or about” permits a reasonable variance in dates. See United States v. Nunez, 1 Cir., 1981, 668 F.2d 10, 11-12; United States v. Antonelli, 1 Cir., 1971, 439 F.2d 1068, 1070. In view of the amount of equipment discovered, still with residue present, it would be reasonable for the jury to conclude that defendant was conducting an ongoing business, and that more substantial amounts of cocaine had been present within a reasonable time of the discovery. There was, however, prejudicial error with regard to the cocaine conviction. The court allowed the government to show that defendant violated the court’s order to furnish handwriting exemplars. From this the government was permitted to argue the jury’s right to draw unfavorable inferences. Defendant challenges this as violating his Fifth Amendment right to avoid compelled testimonial self-incrimination, magnified by permitting comment thereon. At first blush there might appear to be no possible merit in this complaint, it being well settled that handwriting is a matter of physical characteristics which may be demanded without infringing constitutional rights. See United States v. Euge, 1980, 444 U.S. 707, 713, 100 S.Ct. 874, 879, 63 L.Ed.2d 141. Indeed, it is the stock in trade of handwriting experts that some characteristics are so personally entrenched that disguise is almost impossible. See Harrison, Suspect Documents, (1958) 292, 349-51. In Gilbert v. California, 1967, 388 U.S. 263, at 266-67, 87 S.Ct. 1951, at 1953-54, 18 L.Ed.2d 1178, the Court said, in holding that handwriting exemplars constitute “real or physical evidence” not within the Fifth Amendment privilege protecting communications, “One’s voice and handwriting are, of course, means of communication. It by no means follows, however, that every compulsion of an accused to use his voice or write compels a" }, { "docid": "5609731", "title": "", "text": "245, 31 S.Ct. 2, 54 L.Ed. 1021 (1910). It is well founded that handwriting exemplars are not protected by the Fifth Amendment privilege against self-incrimination. Schmerber v. California, 384 U.S. 757, 86 S.Ct. 1826, 16 L.Ed.2d 908 (1966); Gilbert v. California, 388 U.S. 263, 87 S.Ct. 1951, 18 L.Ed.2d 1178 (1967). Schmerber has made it clear that the obtaining of physical evidence from a person involves a potential Fourth Amendment violation at two different levels — the seizure of the person necessary to bring him in contact with government agents, and the subsequent search for and seizure of evidence. As to the seizure of the appellant, we have already found that a valid border search led to the arrest of the appellant. As to the possible violation of the Fourth Amendment at the second level —the subsequent search for and seizure of evidence — the Supreme Court has as recently as last year stated that no violation of the Fourth Amendment is found from compelling execution of handwriting or voice exemplars. United States v. Dionisio, 410 U.S. 1, 93 S.Ct. 764, 35 L.Ed.2d 67 (1973); United States v. Mara, 410 U.S. 19, 93 S.Ct. 774, 35 L.Ed.2d 99 (1973). Dionisio relied on Katz v. United States, 389 U.S. 347, 88 S.Ct. 507, 19 L.Ed.2d 576 (1967), which held that the Fourth Amendment provides no protection for what “a person knowingly exposes to the public, even in his home or office.” The physical characteristics of a person’s voice or handwriting are constantly exposed to the public, hence no intrusion into a person’s privacy results from the compelled execution of a handwriting exemplar. We find no Fourth or Fifth Amendment violation to exist. IY. The appellant next contends that pursuant to Rule 16(f) of the Federal Rules of Criminal Procedure, the government’s motion to produce was not timely because not made within 10 days after arraignment. Rule 16(f) dealing with time for motions applies only to defendants. In the Matter of Magnus, Mabee & Reynard, Inc., 311 F.2d 12 (2nd Cir. 1962). V. Appellant contends also that the pretrial photographic identification procedure" }, { "docid": "12046480", "title": "", "text": "time is in conflict with the Manual. Accordingly, the military judge erred in refusing to consider the merits of defense objections to reception of evidence concerning the statements. Of course, our conclusion as to this local Rule of Practice does not mean that all local rules are invalid. We only have before us a Rule which we have determined conflicts with a provision of the Manual for Courts-Martial — just as was true of the rule held invalid in Kelson. Ill The Court of Military Review concluded that the two statements by appellant to Sergeant Thompson “can be viewed properly as a physical act, such as giving voice or handwriting exemplars, which requires no preliminary warning.” Unpublished opinion at 2. We recognize that, under some circumstances, the words spoken or written by an accused may be received in evidence even though they were taken by an investigator without any Article 31(b), UCMJ, 10 U.S.C. § 831(b), warning. For example, handwriting exemplars are admissible despite the absence of a warning. United States v. Lloyd, 10 M.J. 172 (C.M.A. 1981). The rationale is that Article 31, like the Fifth Amendment, focuses on testimonial compulsion. See United States v. Mara, 410 U.S. 19, 93 S.Ct. 774, 35 L.Ed.2d 99 (1973) (handwriting exemplars); Gilbert v. California, 388 U.S. 263, 87 S.Ct. 1951, 18 L.Ed.2d 1178 (1967) (handwriting exemplars); see also United States v. Dionisio, 410 U.S. 1, 93 S.Ct. 764, 35 L.Ed.2d 67 (1973) (voice exemplars); United States v. Wade, 388 U.S. 218, 87 S.Ct. 1926, 18 L.Ed.2d 1149 (1967) (voice exemplars). However, these were cases where the content or meaning of the words spoken or written was irrelevant. Only the physical characteristics of the words — how they were said and not what was said— were material. In the present case, however, the Government was seeking to bring before the trier of fact the contents of the utterances. Under these circumstances, the guiding precedent is People v. Rucker, 26 Cal.3d 368, 162 Cal.Rptr. 13, 605 P.2d 843 (1980), where a defendant’s statements were offered to rebut a defense of voluntary intoxication. The People" }, { "docid": "7609499", "title": "", "text": "the jury’s right to draw unfavorable inferences. Defendant challenges this as violating his Fifth Amendment right to avoid compelled testimonial self-incrimination, magnified by permitting comment thereon. At first blush there might appear to be no possible merit in this complaint, it being well settled that handwriting is a matter of physical characteristics which may be demanded without infringing constitutional rights. See United States v. Euge, 1980, 444 U.S. 707, 713, 100 S.Ct. 874, 879, 63 L.Ed.2d 141. Indeed, it is the stock in trade of handwriting experts that some characteristics are so personally entrenched that disguise is almost impossible. See Harrison, Suspect Documents, (1958) 292, 349-51. In Gilbert v. California, 1967, 388 U.S. 263, at 266-67, 87 S.Ct. 1951, at 1953-54, 18 L.Ed.2d 1178, the Court said, in holding that handwriting exemplars constitute “real or physical evidence” not within the Fifth Amendment privilege protecting communications, “One’s voice and handwriting are, of course, means of communication. It by no means follows, however, that every compulsion of an accused to use his voice or write compels a communication within the cover of the privilege. A mere handwriting exemplar, in contrast to the content of what is written, like the voice or body itself, is an identifying physical characteristic outside its protection. United States v. Wade, supra, [388 U.S. 218] at 222-223 [87 S.Ct. 1926 at 1929-1930, 18 L.Ed.2d 1149]. No claim is made that the content of the exemplar was testimonial or communicative matter.\" (Emphasis suppl.) The government here, however, did not limit its demand to handwriting exemplars as such. When the agent stated the words he wished written down, defendant replied that he wanted to see what he was to write, rather than take dictation. When the agent refused, defendant’s counsel asked whether the agent would permit counsel to write out what defendant was to write, but this, too, was rejected on the ground — which was the fact — that the court had approved the government’s proposed dictation procedure. Defendant refused to comply, even though the court held him in contempt. The only difference we see between dictation and being" }, { "docid": "14311215", "title": "", "text": "to appear before the grand jury nor its directive to provide voice and handwriting exemplars “infringed upon any interest protected by the Fourth Amendment.” Dionisio, 410 U.S. at 15, 93 S.Ct. at 772; Mara, 410 U.S. at 21, 93 S.Ct. at 775. The Court thus refused to require any preliminary showing of “reasonableness” by the government before the grand jury could compel a witness to produce the relevant physical evidence — a requirement even less onerous than a showing of probable cause, the standard advanced herein by Ferri. See In re September 1971 Grand Jury (Mara), 454 F.2d 580, 584 & n. 5 (7th Cir.1971); see also In re Grand Jury Proceedings (Mills), 686 F.2d at 138 (3d Cir.1982) (observing that “the Court of Appeals [in Dionisio and Mara ] had held that the government must first make a showing of need for the exemplars which was ‘reasonable’ albeit not necessarily synonymous with probable cause”). The Court reasoned that voice and handwriting exemplars are not protected because “the Fourth Amendment provides no protection for what ‘a person knowingly exposes to the public, even in his own home or office.’ ” Dionisio, 410 U.S. at 14, 93 S.Ct. at 771, quoting Katz v. United States, 389 U.S. at 351, 88 S.Ct. at 511. The Court also observed that the compelled production of voice and handwriting exemplars is “immeasurably further removed from the Fourth Amendment protection than was the intrusion into the body effected by the blood extraction in Schmerber.\" Dionisio, 410 U.S. at 14, 93 S.Ct. at 771 (emphasis added); cf. Cupp v. Murphy, 412 U.S. at 295, 93 S.Ct. at 2003 (1973) (holding that, unlike fingerprints and voice or handwriting exemplars, the warrantless search of the defendant’s fingernails went beyond mere physical characteristics constantly exposed to the public and constituted the type of intrusion upon personal security that is subject to constitutional scrutiny). Similarly, it noted that the production of such evidence “does not involve the ‘severe, though brief, intrusion upon cherished personal security,’ effected by the ‘pat down’ in Terry — ‘surely ... an annoying, frightening, and perhaps humiliating" } ]

[ { "docid": "15824386", "title": "", "text": "the bankruptcy filing. In re Kontrick, 295 F.3d 724, 736 (7th Cir.2002). The required intent must be actual; constructive fraud will not suffice. Groman v. Watman (In re Watman), 301 F.3d 3, 8 (1st Cir.2002). Because actual intent is difficult to prove by direct means, it may be inferred from circumstantial evidence. In re Snyder, 152 F.3d 596, 601 (7th Cir.1998). A debtor may be denied a discharge pursuant to § 727(a)(2)(A) even though no creditor was harmed by the transfer or concealment. Proof of harm, in other words, is not a requirement of § 727(a)(2)(A). Keeney v. Smith (In re Keeney), 227 F.3d 679, 684 (6th Cir.2000). The thrust of plaintiffs’ assertion that the exception to discharge found at § 727(a)(2)(A) applies to this case is not obvious. Plaintiffs apparently contend that debtors should be denied a discharge because, within one year of the filing of their chapter 7 petition, debtors transferred or concealed the above-described funds they received from plaintiffs and from others with actual intent to hinder, delay, or defraud their creditors. This assertion lacks merit for a variety of reasons. To begin with, plaintiffs have not identified any specific transfers or concealments of their property that took place during the one-year period prior to April 23, 2001. We are at a loss to know which particular acts or transfers they would have us consider. More importantly, plaintiffs have not demonstrated that any transfers or concealments by debtors of their property during this one-year period were made with actual intent to hinder, delay, or defraud them or other creditors. Debtors’ assets unquestionably were significantly diminished within a year prior to their bankruptcy filing. They have conceded as much in averring that substantial funds were used to keep the doors open. Without something more, however, such loss is not sufficient to establish that debtors acted in this regard with actual intent to defraud their creditors. Plaintiffs have not, in our estimation, established that “something more”. § 727(a)(3). Section 727(a)(3) of the Bankruptcy Code makes financial disclosure a sine qua non for receiving a discharge in bankruptcy. Meridian Bank," } ]

[ { "docid": "18153656", "title": "", "text": "Snyder, 152 F.3d 596, 601 (7th Cir.1998); First Texas Savings Ass’n, Inc. v. Reed (In re Reed), 700 F.2d 986 (5th Cir.1983). Section 727(a)(2)(A) authorizes the court to deny the debtor a discharge if:- With intent to hinder, delay, or defraud a creditor ..., [the debtor] has transferred, removed, destroyed, mutilated, or concealed or has permitted to be transferred, removed, destroyed, mutilated or concealed— (A) property of the debtor, within one year before the date of the filing of the petition;... 11 U.S.C. § 727(a)(2)(A). Pursuant to Bankruptcy Rule 4005, New World has the burden of proving its objection to the debtors’ discharge by a preponderance of the evidence. Fed. Bankr.R. 4005; Corning Vitro Corp. v. Shah (In re Shah), 169 B.R. 17, 20 (Bankr.E.D.N.Y.1994). Once the creditor has established a prima facie case, the burden shifts to the debtor to provide a satisfactory explanation for his actions; however, the ultimate burden of proof rests with the creditor. Shah, 169 B.R. at 20, citing In re Reed, 700 F.2d 986, 992-93 (5th Cir.1983). Objections to a debtor’s discharge are strictly construed against the objecting party and liberally in favor of the debtor to promote the bankruptcy goal of a “fresh start” for the honest debtor. In re Adlman, 541 F.2d 999, 1003 (2d Cir.1976); Bank of India v. Sapru (In re Sapru), 127 B.R. 306, 316 (Bankr.E.D.N.Y.1991); In re Shapiro, 59 B.R. 844, 847 (Bankr.E.D.N.Y.1986). In order to prevail on an objection to discharge under § 727(a)(2), the plaintiff must prove: 1. that the act complained of was done at a time subsequent to one year before the date of the filing of the petition; 2. that the act was done with actual intent to hinder, delay, or defraud a creditor or an officer of the estate charged with custody of property under the Bankruptcy Code; 3. that the act was that of the debtor or his duly authorized agent; and 4. that the act consisted of transferring, removing, destroying or concealing any of the debtor’s property, or permitting any of these acts to be done. Minsky v. Silverstein, 151" }, { "docid": "19168102", "title": "", "text": "definition at 11 U.S.C. § 101(54). Debtor’s suggestion that Creditor was not harmed by his actions is of no moment, since § 727(a)(2)(A) does not require that the creditor suffer actual harm for the debtor to be denied the privilege of discharge. Matter of Snyder, 152 F.3d 596, 601 (7th Cir.1998); Matter of Smiley, 864 F.2d 562, 569 (7th Cir.1989). Creditor merely has to show by a preponderance of evidence under that provision that Debtor intended to defraud it. For purposes of the pending motion, Creditor must show that no reasonable factfinder would find for Debtor because his explanations are so implausible as to be unreasonable under the circumstances of the case. Creditor has met this burden. Likewise, the explanations for not scheduling all assets of Debtor hold no water. Moreover, Debtor’s amendment of his schedules does not bar denial of discharge. “The operation of the bankruptcy system depends on honest reporting. If debtors could omit assets at will, with the only penalty that they had to file an amended claim once caught, cheating would be altogether too attractive.” Payne v. Wood, 775 F.2d 202, 205 (7th Cir.1985); Mazer v. United States, 298 F.2d 579, 582 (7th Cir.1962) (offense of false oath and false swearing cannot be avoided by amended schedule). CONCLUSION Debtor’s voluntary transfers of property to his spouse and failure to comply with reporting requirements in bankruptcy showed a deliberate intent to shield his assets from creditors. No reasonable fact-finder could decide that Debtor’s acts and omissions lacked intent to defraud. Therefore the Motion for Summary Judgment is allowed, and separate Final Judgment Order will be entered. . (a) The court shall grant the debtor a discharge, unless— (D... (2) the debtor, with intent to hinder, delay, or defraud a creditor or an officer of the estate charged with custody of property under this title, has transferred, removed, destroyed, mutilated, or concealed, or has permitted to be transferred, removed, destroyed, mutilated, or concealed (A) property of the debtor, within one year before the date of the filing of the petition; (4) the debtor knowingly and fraudulently, in or" }, { "docid": "3100942", "title": "", "text": "from financial statements, and substantially overestimated his property and net worth, did not intend to defraud creditor). As to Janet Miller, her participation in the Millers’ financial matters was extremely minimal, apparently limited to signing her name on relevant co-signatory and co-ownership documents; there therefore is no independent reason contrary to the foregoing analysis to deny her discharge in bankruptcy as to the contested debts. Consequently, for all of the above reasons, we hold that the district court erred in reversing the bankruptcy court’s finding that the Millers lacked the requisite intent to deceive under 11 U.S.C. § 523(a)(2)(B). III. Equitable alternatively argues that the Millers’ debts are non-dischargeable under 11 U.S.C. § 727(a)(2)(A), which provides: (a) The court shall grant the debtor a discharge, unless— (2) the debtor with the intent to hinder, delay, or defraud the creditor or an officer of the estate ... has transferred, removed, destroyed, mutilated, or concealed, or has permitted to be transferred, removed, destroyed, mutilated, or concealed— (A) property of the debtor within one year before the date of the filing of the petition!.] A creditor alleging intent to defraud under § 727(a)(2)(A) bears the considerable burden of demonstrating actual fraudulent intent; constructive fraud is insufficient. See In re Wines, 997 F.2d 852, 856 (11th Cir.1993) (citations omitted). As is the case under § 523(a)(2), the bankruptcy court’s determination of whether a debtor acted with the requisite intent is a question of fact reviewed for clear error by the district and appellate courts. Id. Equitable alleges that the Millers’ transfer of nine properties to Sarasohn in exchange for cancellation of $1,105,000.00 of unsecured debt was intended to defraud Equitable. Equitable contends that the transaction is suspect because the properties were sold for approximately $635,000.00 less than their value as reflected on the Millers’ financial statements. Equitable points out that even Dr. Miller’s own real estate partner, Alan Korn-bluh, testified that he had valued the properties at a figure approximately $300,000.00 greater than the transfer price. In addition, Equitable contends that the close professional relationship between Sarasohn and Miller, along with the fact that" }, { "docid": "15824387", "title": "", "text": "This assertion lacks merit for a variety of reasons. To begin with, plaintiffs have not identified any specific transfers or concealments of their property that took place during the one-year period prior to April 23, 2001. We are at a loss to know which particular acts or transfers they would have us consider. More importantly, plaintiffs have not demonstrated that any transfers or concealments by debtors of their property during this one-year period were made with actual intent to hinder, delay, or defraud them or other creditors. Debtors’ assets unquestionably were significantly diminished within a year prior to their bankruptcy filing. They have conceded as much in averring that substantial funds were used to keep the doors open. Without something more, however, such loss is not sufficient to establish that debtors acted in this regard with actual intent to defraud their creditors. Plaintiffs have not, in our estimation, established that “something more”. § 727(a)(3). Section 727(a)(3) of the Bankruptcy Code makes financial disclosure a sine qua non for receiving a discharge in bankruptcy. Meridian Bank, 958 F.2d at 1230. This provision ensures that creditors receive complete and accurate information about a debtor’s financial affairs and tests the completeness of the disclosure required for a discharge. Id., 958 F.2d at 1234. It is intended to provide creditors with dependable information upon which they can rely. Id., 958 F.2d at 1230. A debtor is not required to keep and maintain complete and impeccable books and records as a precondition to obtaining a discharge. These books and records must, however, identify debtor’s financial transactions with sufficient clarity to make intelligent inquiry possible. Id. The test is whether “there [is] available written evidence from ... which the present financial condition of the bankrupt, and his business transactions for a reasonable period in the past may be ascertained”. Id. (quoting In re Decker, 595 F.2d 185, 187 (3d Cir.1979)). If a debtor fails to keep and maintain adequate records, some justification is required. Id. What constitutes justification depends on the totality of the circumstances and on what a reasonable person would do under similar circumstances." }, { "docid": "19755598", "title": "", "text": "223, 225 (5th Cir.1998). A finding of fact is clearly erroneous only if “on the entire evidence, the court is left with the definite and firm conviction that a mistake has been committed.” Hibernia Nat’l Bank v. Perez (In re Perez), 954 F.2d 1026, 1027 (5th Cir.1992) (quotation marks and citations omitted). “[W]e must give ‘due regard ... to the opportunity of the [bankruptcy] court to judge the credibility of the witnesses.’ ” Id. (quoting Fed. R.Crv.P. 52(a)). After a review of the record, we conclude that the court did not clearly err in any of its factual findings. A. Robertson argues first that the bankruptcy court clearly erred by granting Dennis a discharge at all. In particular, he contends that the court should have denied Dennis a discharge under 11 U.S.C. § 727(a)(2)(A) for fraudulently transferring or concealing assets and under 11 U.S.C. § 727(a)(3) for failure to keep and file adequate financial records. 1. Robertson reasons that the bankruptcy court clearly erred by finding that Dennis lacked actual intent to defraud under § 727(a)(2)(A). He contends that her fraudulent intent is shown by her purchase of savings bonds for her son in the year preceding bankruptcy. Section 727(a)(2)(A) entitles individual debtors to a discharge unless “the debtor, with intent to hinder, delay, or defraud a creditor ... has transferred ... property of the debtor, within one year before the date of the filing of the petition.” 11 U.S.C. § 727(a)(2)(A). The purpose of this section “is to deny a discharge to those debtors who, intending to defraud, transfer property which would have become property of the bankrupt estate.” Pavy v. Chastant (In re Chastant), 873 F.2d 89, 90 (5th Cir.1989). Section 727(a)(2)(A) has four elements: “(1) a transfer of property; (2) belonging to the debtor; (3) within one year of the filing of the petition; (4) with intent to hinder, delay, or defraud a creditor.... ” Id. Dennis disputes only that she had actual intent to defraud. “The finding of intent to hinder, delay, or defraud a creditor is a factual one which must be reviewed under the" }, { "docid": "9340959", "title": "", "text": "property transferred was property of the Debtor; (3) that the transfer was within one year of the Petition; and (4) that at the time of the transfer the Debtor possessed the requisite intent to hinder, delay or defraud a creditor. See In re Clemons, 42 B.R. 796, 800 (Bankr.S.D.Ohio 1984); citing In re Reed, 18 B.R. 462 (Bankr.E.D.Tenn.1982). The law is well settled that the intent must be actual fraudulent intent. See 4 Collier on Bankruptcy, § 727.02[3] (15th Ed.1984). Therefore, before a Debtor will be denied a discharge under § 727(a)(2)(A), his actual, subjective intent to hinder, delay or defraud creditors must be demonstrated. There is nothing in this record to indicate even by inference that the transfers alleged were done with the specific intent either to defraud, hinder or delay any specific creditor of the Debtor. The fact that the transfers indirectly might have caused ultimately a delay in the creditors’ efforts to enforce their claims against the Debtor is of no consequence. Thus, the sole remaining question in this matter is whether the transfers were effected with the requisite specific intent required by § 727(a)(2)(A). This Court is satisfied that an objection to discharge under § 727(a)(2)(A) based on a general charge of dishonest behavior, without more, is not sufficient to warrant a denial of discharge. Even though a Debtor does not act with fraudulent intent, he may nevertheless be denied a discharge in bankruptcy where he failed to keep records from which his financial condition could be ascertained. As noted earlier the Debtor’s discharge may be denied under that section where: “the debtor has concealed, destroyed ... or failed to keep or preserve any recorded information, including books, documents, records or papers from which the debtor’s financial condition or business transactions might be ascertained, unless such act or failure to act was justified under all of the circumstances of the case.” Although the Debtor did not keep a personal general ledger or any other method of accounting for the receipts and disbursements of the garage sale, the antique gun sale, and his personal jewelry sale, he" }, { "docid": "5872645", "title": "", "text": "favor of debtors and strictly against objectors in order to grant debtors a fresh start. In re Johnson, 98 B.R. 359, 364 (Bankr.N.D.Ill.1988) (citation omitted). Because denial of discharge is so drastic a remedy, courts may be more reluctant to impose it than to find a particular debt nondischargeable. See Johnson, supra, 98 B.R. at 367 (“The denial of discharge is a harsh remedy to be reserved for a truly pernicious debtor.”) (citation omitted). The plaintiff has the burden of proving the objection. See Fed. R.Bankr.P. 4005; In re Martin, 698 F.2d 883, 887 (7th Cir.1983) (the ultimate burden of proof in a proceeding objecting to a discharge lies with the plaintiff). The objector must establish all elements by a preponderance of the evidence. In re Scott, 172 F.3d 959, 966-67 (7th Cir.1999). Pursuant to 11 U.S.C. § 727(a)(2)(A), a court will grant a debtor a discharge unless the plaintiff can prove by a preponderance of the evidence that the debtor: (2) with intent to hinder, delay or defraud a creditor or an officer of the estate charged with custody of property under this title, has transferred, removed, destroyed, mutilated, or concealed, or has permitted to be transferred, removed, destroyed, mutilated, or concealed— (A) property of the debtor, within one year before the date of the filing of the petition... 11 U.S.C. § 727(a)(2)(A). Denial of discharge under this section requires proof of actual intent to hinder, delay or defraud a creditor. In re Snyder, 152 F.3d 596, 601 (7th Cir.1998); In re Krehl, 86 F.3d 737, 743 (7th Cir.1996); In re Smiley, 864 F.2d 562, 566 (7th Cir.1989). “[P]roof of harm is not a required element of a cause of action under Section 727.” Id. at 569. In determining whether a debtor has acted with intent to defraud under § 727, the court should consider the debtor’s “whole pattern of conduct.” In re Ratner, 132 B.R. 728, 731 (N.D.Ill.1991) (quoting In re Reed, 700 F.2d 986 (5th Cir.1983)). The issue of a debtor’s intent is a question of fact to be determined by the bankruptcy judge. See Smiley, supra," }, { "docid": "19755599", "title": "", "text": "727(a)(2)(A). He contends that her fraudulent intent is shown by her purchase of savings bonds for her son in the year preceding bankruptcy. Section 727(a)(2)(A) entitles individual debtors to a discharge unless “the debtor, with intent to hinder, delay, or defraud a creditor ... has transferred ... property of the debtor, within one year before the date of the filing of the petition.” 11 U.S.C. § 727(a)(2)(A). The purpose of this section “is to deny a discharge to those debtors who, intending to defraud, transfer property which would have become property of the bankrupt estate.” Pavy v. Chastant (In re Chastant), 873 F.2d 89, 90 (5th Cir.1989). Section 727(a)(2)(A) has four elements: “(1) a transfer of property; (2) belonging to the debtor; (3) within one year of the filing of the petition; (4) with intent to hinder, delay, or defraud a creditor.... ” Id. Dennis disputes only that she had actual intent to defraud. “The finding of intent to hinder, delay, or defraud a creditor is a factual one which must be reviewed under the clear error standard.” Perez, 954 F.2d at 1029 (citing Thibodeaux v. Olivier (In re Olivier), 819 F.2d 550, 552 (5th Cir.1987)). As plaintiff, Robertson bore the burden to prove Dennis’s intent to defraud. Chastant, 873 F.2d at 90-91. “Moreover, evidence of actual intent to defraud creditors is required to support a finding sufficient to deny a discharge. Constructive intent is insufficient.” Id. at 91 (quotation marks and internal citation omitted). Given the obvious problems of proof, though, “[a]ctual intent ... may be inferred from the actions of the debtor and may be shown by circumstantial evidence.” Id. We have identified several factors that tend to prove actual intent to defraud: (1) the lack or inadequacy of consideration; (2) the family, friendship or close associate relationship between the parties; (3) the retention of possession, benefit, or use of the property in question; (4) the financial condition of the party sought to be charged both before and after the transaction in question; (5) the existence or cumulative effect of the pattern or series of transactions or course" }, { "docid": "9776878", "title": "", "text": "defraud any creditor.... ” 12 Pa. Cons. Stat. Ann. § 5104 (emphasis added). Similarly, the courts apply the bankruptcy code’s denial of discharge provision, 11 U.S.C. § 727(a)(2)(A), to “require[ ] only that the debtor make the transfer with intent to hinder, delay, or defraud ‘a creditor.’ There is no requirement that the debtor intend to hinder all of his creditors.” Adeeb, 787 F.2d at 1343. We recognize that the bankruptcy court indicated that Blatstein intended to shield the income to pay some of his debts, including reducing some of his tax liability as the court noted that “taxes were paid from [a brokerage] Account, and therefore no fraud on the IRS or other taxing authorities appears to have been effected.” Main II, 213 B.R. at 94. Nevertheless, as the Adeeb court stated: “Our inquiry under [11 U.S.C. § ] 727(a)(2)(A) is whether [debtor] intended to hinder or delay a creditor. If he did, he had the intent penalized by the statute notwithstanding any other motivation he may have had for the transfer.” 787 F.2d at 1343. We will apply the same principle under PUFTA. See also In re Greene, 202 B.R. 68, 73 (Bankr.D.Md.1996) (holding that debtor’s attempt to avoid one creditor’s collection efforts in an effort to allow him to pay-other creditors “does not change the fact that Debtor transferred ... assets with the actual intent to hinder” a creditor); In re Cooper, 150 B.R. 462, 467 (D.Colo.1993) (holding transfers to wife were fraudulent even though wife was one of debtor’s creditors); United States v. Purcell, 798 F.Supp. 1102, 1113 (E.D.Pa.1991), aff'd, 972 F.2d 1334 (3d Cir.1992) (table) (finding a conveyance fraudulent under PUFTA’s predecessor when defendant attempted to avoid federal tax lien by conveying his property to his wife as a tenant by the entireties). Thus, we conclude that the bankruptcy court’s determination that Blatstein did not have the actual intent to defraud his creditors was erroneous. Furthermore, although not necessary for our result, we note that the bankruptcy court erred in its “constructive fraud” analysis by incorrectly placing on Arch Street the burden of proving that" }, { "docid": "3099728", "title": "", "text": "to his bankruptcy filing by leaving it behind when he closed K-Lor. They argue that debtor therefore should be denied a general discharge in accordance with § 727(a)(2)(A), which provides in part as follows: (a) The court shall grant a debtor a discharge, unless — .... (2) the debtor, with intent to hinder, delay, or defraud a creditor ..., has transferred, removed, destroyed, mutilated or concealed, or has permitted to be transferred, removed, destroyed, mutilated, or concealed— (A) property of the estate, within one year before the date of the filing of the petition;... 11 U.S.C. § 727(a)(2)(A). Section 727(a) should be construed liberally in favor of a debtor in bankruptcy and against a party objecting to the debtor’s discharge. Applying one of the exceptions to discharge is an extreme measure and must not be lightly undertaken. Rosen v. Bezner, 996 F.2d 1527, 1531 (3d Cir.1993). A party objecting to a debtor’s discharge has burden of proving that the case falls within one of the exceptions enumerated at § 727(a). The objector must prove facts essential to that particular exception. Meridian Bank v. Alten, 958 F.2d 1226, 1232 (3d Cir.1992). The' exception to discharge found at § 727(a)(2)(A) is comprised of two basic components: an act — e.g., a transfer or concealment — , and an improper motive — i.e., a subjective intent to hinder, delay or defraud a creditor. Rosen, 996 F.2d at 1531. A creditor objecting to the debtor’s discharge must establish the presence of both of these components during the one-year period preceding the bankruptcy; anything occurring outside of this window is “forgiven”. Id. To prevail under § 727(a)(2)(A) in this case, plaintiffs must prove that: (1) the debtor; (2) transferred; (3) debtor’s property; . (4) with intent to hinder, delay, or defraud a creditor; (5) within one year prior to the bankruptcy filing. In re Kontrick, 295 F.3d 724, 736 (7th Cir.2002). The required intent must be actual; constructive fraud will not suffice. Groman v. Watman (In re Watman), 301 F.3d 3, 8 (1st Cir.2002). Because actual intent ordinarily is difficult to prove directly, it may" }, { "docid": "13078044", "title": "", "text": "the property. Unless Rosen believed that, in the absence of concealment, his creditors might be able to seize his retained interest or in some other way reach property subject to levy, any continuing concealment could not have been motivated by an intent to hinder creditors. We will therefore remand to the bankruptcy court for a factual determination not only as to whether Rosen retained a secret interest during the relevant period, but also as to whether any such concealment was accompanied by an actual intent to hin der or defraud creditors. In making the determination regarding subjective intent, the court should consider Rosen’s own testimony regarding his state of mind as well as the surrounding circumstantial evidence of intent. See, e.g., In re Kauffman, 675 F.2d 127, 128 (7th Cir.1981) (“Intent, however, ‘must be gleaned from inferences drawn from a course of conduct.’ ”) (quoting Vecchione, 407 F.Supp. at 615). C. In conclusion, we again note that § 727 is to be construed liberally in favor of the debtor and that a total bar to discharge is an extreme penalty. From the statutory language, it is clear that Congress intended this penalty to apply only where there is proof that the debtor intentionally did something improper during the year before bankruptcy; improper conduct before the one year period is forgiven. Here, even if the debtor did transfer property with an intent to hinder or defraud creditors prior to the one year period, it may be that he retained no interest in the property after the transfer or, even if he did, that he did not believe that he retained an interest which would be reachable by ‘creditors who became aware of it. Because there are genuine issues of material fact in this case, the district court’s grant of summary judgment for the trustee cannot be sustained. Rosen’s discharge can be barred pursuant to § 727(a)(2)(A) only if the bankruptcy court finds that Rosen did retain a secret interest in the property and that Rosen’s continuing concealment of this interest was motivated by an actual intent to hinder, delay, or defraud" }, { "docid": "9789052", "title": "", "text": "the trustee must prove each element of § 727(a)(2)(A), (a)(2)(B), (a)(3), (a)(4), or (a)(5) by a preponderance of the evidence in order for the Court to deny the debtor’s discharge. A. Sections 727(a)(2)(A) and (a)(2)(B) Section 727(a)(2) provides that the court shall grant a debtor a discharge, unless— (2)the debtor, with intent to hinder, delay, or defraud a creditor or an officer of the estate charged with custody of the property under this title, has transferred, removed, destroyed, mutilated, or concealed, or has permitted to be transferred, removed, destroyed, mutilated, or concealed— (A) property of the debtor, within one year before the date of the filing of the petition; or (B) property of the estate, after the date of the filing of the petition. 11 U.S.C. § 727(a)(2). Section 727(a)(2) is fundamental to the concept that a debtor’s chapter 7 discharge is granted upon the condition that he has disclosed all of his assets and made them available for distribution. Helena Chem. Co. v. Richmond (In re Richmond), 429 B.R. 263, 302 (Bankr.E.D.Ark.2010). The party objecting to a debtor’s discharge under § 727(a)(2) has the burden of proving four elements by a preponderance of the evidence— (1) that the act complained of was done within one year prior to the date the petition was filed, or after the date the petition was filed; (2) that the act was that of the debtor; (3) that it consisted of a transfer, removal, destruction, or concealment of the debtor’s - property, or, if the act occurred after the date the petition was filed, the property of the estate; and (4) that it was done with an intent to hinder, delay, or defraud either a creditor or an officer of the estate. See 11 U.S.C. § 727(a)(2); see also In re Korte, 262 B.R. at 472. Proof that a creditor or the estate was harmed as a result of the debtor’s act is not required under § 727. In re Richmond, 429 B.R. at 302 (citing In re Snyder, 152 F.3d 596, 601 (7th Cir.1998)). Failing to list assets on bankruptcy schedules and statements" }, { "docid": "19168101", "title": "", "text": "(Bankr.N.D.Ill.2001) (Son-derby, J). A case similar to this was presented in In re Chavin, 150 F.3d 726 (7th Cir.1998), where the panel opinion upheld the grant of summary judgment under §§ 727(a)(2) and 727(a)(4)(A). In Chavin the opinion stated that a credibility issue involving the intent to defraud should normally be left for trial. However, in extreme cases where the explanation given is so implausible that a rational factfinder could not find for the debtor the court may enter summary judgment. Chavin, 150 F.3d at 728-29. Could a factfinder credit Debtor’s statements for why he acted as he did? No. His explanations are utterly implausible. Just as in Chavin, Debtor here was a businessman who had to understand his responsibility to disclose accurately and fully the information requested on the bankruptcy schedules. Moreover, Debtor was advised by counsel who was aware of the divorce settlement and thus fully capable of advising him on the need to schedule the transfers in the bankruptcy. Debtor’s counsel was responsible to know that such transfers were covered under the definition at 11 U.S.C. § 101(54). Debtor’s suggestion that Creditor was not harmed by his actions is of no moment, since § 727(a)(2)(A) does not require that the creditor suffer actual harm for the debtor to be denied the privilege of discharge. Matter of Snyder, 152 F.3d 596, 601 (7th Cir.1998); Matter of Smiley, 864 F.2d 562, 569 (7th Cir.1989). Creditor merely has to show by a preponderance of evidence under that provision that Debtor intended to defraud it. For purposes of the pending motion, Creditor must show that no reasonable factfinder would find for Debtor because his explanations are so implausible as to be unreasonable under the circumstances of the case. Creditor has met this burden. Likewise, the explanations for not scheduling all assets of Debtor hold no water. Moreover, Debtor’s amendment of his schedules does not bar denial of discharge. “The operation of the bankruptcy system depends on honest reporting. If debtors could omit assets at will, with the only penalty that they had to file an amended claim once caught, cheating would" }, { "docid": "18551450", "title": "", "text": "11 U.S.C. § 727(a)(2)(A) states: (a) The court shall grant the debtor a discharge, unless — ... (2) the debtor, with intent to hinder, delay, or defraud a creditor ... has transferred (A) property of the debtor, within one year before the date of the filing of the petition.... In keeping with the “fresh start” purposes behind the Bankruptcy Code, courts should construe § 727 liberally in favor of debtors and strictly against parties objecting to discharge. In re Devers, 759 F.2d 751, 754 (9th Cir.1985). Denial of discharge, however, need not rest on a finding of intent to defraud. Intent to hinder or delay is sufficient. Matter of Smiley, 864 F.2d 562, 568 (7th Cir.1989); In re Adeeb, 787 F.2d 1339, 1343 (9th Cir.1986). Furthermore, a debtor need not succeed in harming creditors to warrant denial of discharge because “lack of injury to creditors is irrelevant for purposes of deny ing a discharge in bankruptcy.” In re Adeeb, 787 F.2d at 1343. The Bernards have admitted they made the early 1991 withdrawals to help fend off the Sheaffers’ attempts to reach the Ber-nards’ assets. These withdrawals were made within one year of the Bernards’ October 7, 1991 filing. Therefore, the only remaining question is whether these withdrawals were “transfers” of property. If they were, then the Bernards violated § 727(a)(2)(A), and the bankruptcy court was correct to deny discharge. Of course, the Bernards contend that the withdrawals were not transfers in any meaningful sense. By taking money out of the bank, as it were, they claim they merely moved their assets from one of their own pockets to another—they had not “transferred” anything to anyone. This argument has force and arguably finds some support in out-of-circuit law. For instance, the Seventh Circuit has stated, “[i]n order to justify the refusal of discharge under a section 727(a)(2) transfer, ‘it must be shown that there was an actual transfer of valuable property belonging to the debtor which reduced the assets available to creditor and which was made with fraudulent intent.’ ” Matter of Agnew, 818 F.2d 1284, 1289 (7th Cir.1987) (quoting" }, { "docid": "5872646", "title": "", "text": "the estate charged with custody of property under this title, has transferred, removed, destroyed, mutilated, or concealed, or has permitted to be transferred, removed, destroyed, mutilated, or concealed— (A) property of the debtor, within one year before the date of the filing of the petition... 11 U.S.C. § 727(a)(2)(A). Denial of discharge under this section requires proof of actual intent to hinder, delay or defraud a creditor. In re Snyder, 152 F.3d 596, 601 (7th Cir.1998); In re Krehl, 86 F.3d 737, 743 (7th Cir.1996); In re Smiley, 864 F.2d 562, 566 (7th Cir.1989). “[P]roof of harm is not a required element of a cause of action under Section 727.” Id. at 569. In determining whether a debtor has acted with intent to defraud under § 727, the court should consider the debtor’s “whole pattern of conduct.” In re Ratner, 132 B.R. 728, 731 (N.D.Ill.1991) (quoting In re Reed, 700 F.2d 986 (5th Cir.1983)). The issue of a debtor’s intent is a question of fact to be determined by the bankruptcy judge. See Smiley, supra, 864 F.2d at 566. Actual fraudulent intent can be inferred from extrinsic evidence. Id.; Krehl, supra, 86 F.3d at 743; In re White, 63 B.R. 742, 744 (Bankr.N.D.Ill.1986) (“a debtor is unlikely to directly testify that his intent was fraudulent, the court may deduce fraudulent intent from all the facts and circumstances of a case”). “Thus, where the evidence on the intent question is such that two permissible conclusions may rationally be drawn, the bankruptcy court’s choice between them will not be viewed as clearly erroneous.” Krehl, supra, 86 F.3d at 744 (citation omitted). “Intent to defraud involves a material misrepresentation that you know to be false, or, what amounts to the same thing, an omission that you know will create an erroneous impression.” In re Chavin, 150 F.3d 726, 728 (7th Cir.1998) (citations omitted). In order to prevail against the Debtor on its § 727(a)(2)(A) claim, the Plaintiff must prove two things: (a) assets of Universal were transferred, removed, destroyed, mutilated, or concealed, and, if proven, (b) that the Debtor had an intent to" }, { "docid": "1374033", "title": "", "text": "OPINION EMIL F. GOLDHABER, Bankruptcy Judge: The matter in dispute before us arises out of an adversary proceeding brought by a creditor against the debtor seeking, in the alternative, a denial of discharge or an exception to discharge. The main issues in dispute are whether the debtor possessed the requisite fraudulent intent under 11 U.S.C. § 727(a)(2)(A) of the Bankruptcy Code and whether the debtor’s prepetition surrender of a power to revoke a trust was a transfer of the debtor’s property. In resolving both of these issues in the affirmative we conclude that the creditor has prevailed in his action under § 727(a)(2)(A) and thus we will deny the debtor a discharge. It follows, therefore, that we need not consider the exception to the debtor’s discharge as contained in § 523. The facts of the case are as follows: Prior to filing a petition for relief, the debtor purchased a parcel of real property on January 29, 1981, directing the grantor to deed the property to her as trustee for her son. Under the terms of the trust which was established on the day of the purchase through the deed, the debtor reserved the power to revoke the trust at any time. Subsequently the debtor amended the provisions of the trust by deleting her power as trustee to revoke the trust. The creation of the trust and the surrender of the power to revoke were without consideration. The debtor filed for relief under Chapter 7 of the Bankruptcy Code on April 1, 1982. Anthony J. O’Connor, a creditor of the debtor, commenced this proceeding seeking in the alternative a denial of discharge or an exception to discharge under §§ 727 or 523, respectively. Under § 727(a)(2)(A), the creditor contends that the debtor, with intent to defraud her creditors, has transferred property of the debtor within one year prior to the filing of bankruptcy. The creditor asserts that the debtor’s surrender of the power to revoke the trust within one year prior to the commencement of bankruptcy was done with intent to defraud. In pertinent part, § 727 states: § 727." }, { "docid": "3099727", "title": "", "text": "reason to expect that plaintiffs would do nothing and by default would effectively allow the landlord to dispose of their collateral. The outcome is no different if we apply the so-called subjective approach to the facts of this case. Plaintiffs not only failed to show that debtor subjectively intended to injure them or their property, they also failed to establish that he subjectively knew or believed that plaintiffs or their collateral would be inured as a consequence of his actions. It is highly improbable that debtor believed plaintiffs would do nothing and allow their collateral to be disposed by the landlord after he informed of K-Lord’s closing. We conclude in light of the foregoing that plaintiffs have failed to demonstrate that the debt owed to them by debtor should be excepted from discharge by §§ 523(a)(2)(A), (a)(4), or (a)(6). Objection To General Discharge Plaintiffs assert in Count IV of the complaint that, with intent to hinder, delay, or defraud his creditors, debtor abandoned or transferred their collateral to the landlord less than a year prior to his bankruptcy filing by leaving it behind when he closed K-Lor. They argue that debtor therefore should be denied a general discharge in accordance with § 727(a)(2)(A), which provides in part as follows: (a) The court shall grant a debtor a discharge, unless — .... (2) the debtor, with intent to hinder, delay, or defraud a creditor ..., has transferred, removed, destroyed, mutilated or concealed, or has permitted to be transferred, removed, destroyed, mutilated, or concealed— (A) property of the estate, within one year before the date of the filing of the petition;... 11 U.S.C. § 727(a)(2)(A). Section 727(a) should be construed liberally in favor of a debtor in bankruptcy and against a party objecting to the debtor’s discharge. Applying one of the exceptions to discharge is an extreme measure and must not be lightly undertaken. Rosen v. Bezner, 996 F.2d 1527, 1531 (3d Cir.1993). A party objecting to a debtor’s discharge has burden of proving that the case falls within one of the exceptions enumerated at § 727(a). The objector must prove facts" }, { "docid": "18153655", "title": "", "text": "things, failure to list the three corporations that they had established for the franchises within the 6 years period prior to filing their petition, failure to list a 401 (k) plan in which Mrs. Abra-mov participated, and failure to disclose the sale by Mr. Abramov of his interest in the radio car in Boston, Massachusetts. Discussion The “central purpose of the [Bankruptcy] Code is to provide a procedure by which certain insolvent debtors can reorder their affairs, make peace with their creditors, and enjoy ‘a new opportunity in life with a clear field for future effort, unhampered by the pressure and discouragement of pre-existing debt’ .... [However], the Act limits the opportunity for a completely unencumbered new beginning to the ‘honest but unfortunate debt- or.’ ” Grogan v. Garner, 498 U.S. 279, 286-287, 111 S.Ct. 654, 659, 112 L.Ed.2d 755, 764-765 (1991) (citations omitted). Whether a debtor had actual intent to defraud is a question of fact for this Court to determine. 6 Collier on Bankruptcy, Sec. 727.02 at 727-21 (15th Ed.2005), citing In re Snyder, 152 F.3d 596, 601 (7th Cir.1998); First Texas Savings Ass’n, Inc. v. Reed (In re Reed), 700 F.2d 986 (5th Cir.1983). Section 727(a)(2)(A) authorizes the court to deny the debtor a discharge if:- With intent to hinder, delay, or defraud a creditor ..., [the debtor] has transferred, removed, destroyed, mutilated, or concealed or has permitted to be transferred, removed, destroyed, mutilated or concealed— (A) property of the debtor, within one year before the date of the filing of the petition;... 11 U.S.C. § 727(a)(2)(A). Pursuant to Bankruptcy Rule 4005, New World has the burden of proving its objection to the debtors’ discharge by a preponderance of the evidence. Fed. Bankr.R. 4005; Corning Vitro Corp. v. Shah (In re Shah), 169 B.R. 17, 20 (Bankr.E.D.N.Y.1994). Once the creditor has established a prima facie case, the burden shifts to the debtor to provide a satisfactory explanation for his actions; however, the ultimate burden of proof rests with the creditor. Shah, 169 B.R. at 20, citing In re Reed, 700 F.2d 986, 992-93 (5th Cir.1983). Objections to" }, { "docid": "10165965", "title": "", "text": "an asset that continues, with the requisite intent, into the year before bankruptcy is within the reach of section 727(a)(2)(A). In re Olivier, 819 F.2d 550 (5th Cir.1987); In re Sanders, 128 B.R. 963 (Bankr.W.D.La. 1991); In re Cook, 126 B.R. 261 (Bankr.E.D.Tex.1991); In re Serafini, 113 B.R. 692 (D.Colo.1990); In re Penner, 107 B.R. 171 (Bankr.N.D.Ind.1989); In re Syrtveit, 105 B.R. 596 (Bankr.D.Mont.1989); cf 18 U.S.C. § 3284 (for purposes of bankruptcy crime action, debtor’s concealment of assets deemed continuing offense until discharge entered). Although the Ninth Circuit hqs yet to specifically address whether the doctrine of continuing concealment applies to actions under section 727(a)(2)(A), the court is persuaded that the doctrine does apply. (b)Intent to Hinder, Delay or Defraud a Creditor. Section 727 requires that the act complained of be done with the intent to hinder, delay, or defraud a creditor. Intent to hinder, delay, or defraud is rarely susceptible to direct proof. Accordingly, such intent can be established by circumstantial evidence, or by inferences drawn from a course of conduct on the part of a debtor; See Pavy v. Chasant, 873 F.2d 89, 91 (5th Cir.1989); In re Essres, 122 B.R. 422, 426 (D.Colo.1990); In re Martin, 88 B.R. 319 (D.Colo.1988). The objector need only show that a debtor acted with one of the three states of mind — a showing of intent to defraud is not necessary. In re Elholm, 80 B.R. 964 (D.Minn.1987). Additionally, section 727(a)(2)(A) requires only that a debtor intend to hinder, delay, or defraud one creditor. A plaintiff need not prove that the debtor’s concealing of assets was aimed at all creditors.' See 'in re Adeeb, 787 F.2d at 1343; In re Goldberg, 2 B.R. 15 (Bankr.S.D.Fla.1979). The final two -elements of a section 727(a)(2)(A) action are: (c) The Act Was Done by Debtor or His Agent, and (d) The Act consisted of Transferring, Removing, Destroying, or Concealing any of the Debtor’s Property. A debtor need not literally conceal assets to violate section 727(a)(2)(A): “The transfer of title with attendant circumstances indicating that the bankrupt continues to use the property as his" }, { "docid": "8594440", "title": "", "text": "Moreover, the Debtor testified that he had the continued use and benefit of the automobile. Third, on May 9, 2000, a check in the amount of $26,803.70 was made payable to Mrs. Self from the joint checking account at Pullman Bank. See Creditor Ex. No. 4iii. According to the Debtor, Mrs. Self wrote the check to herself so that she could purchase a cashier’s check payable to Am-eriquest, the mortgage holder on the Olympia Fields Property. However, the Debtor failed to produce any documentation to corroborate that the money was actually paid to Ameriquest. In sum, based upon the above, the Court finds that the Debtor transferred, removed, and concealed property that belonged to him. Next, the Court must determine whether the Debtor had the requisite fraudulent intent under § 727(a)(2)(A). The issue of a debtor’s intent is a question of fact to be determined by the bankruptcy judge. In re Smiley, 864 F.2d 562, 566 (7th Cir.1989). Denial of discharge under this section requires proof of actual intent to hinder, delay, or defraud a creditor. McWilliams, 284 F.3d at 790; In re Snyder, 152 F.3d 596, 601 (7th Cir.1998); In re Krehl, 86 F.3d 737, 743 (7th Cir.1996); Smiley, 864 F.2d at 566. Because debtors rarely admit their intent was fraudulent, actual intent to hinder, delay or defraud may be proven by circumstantial evidence or by inference drawn from a debtor’s course of conduct. McWilliams, 284 F.3d at 791; Snyder, 152 F.3d at 601; Krehl, 86 F.3d at 743; Smiley, 864 F.2d at 566. Courts are reluctant to accept a debtor’s self-serving statement of his intent as the best evidence of that intent. Costello, 299 B.R. at 895. “In determining whether a debtor has acted with intent to defraud under § 727, the court should consider the debtor’s ‘whole pattern of conduct.’ ” Bennett & Kahnweiler Assocs. v. Ratner (In re Ratner), 132 B.R. 728, 731 (N.D.Ill. 1991) (quoting First Tex. Savs. Assoc., Inc. v. Reed (In re Reed), 700 F.2d 986, 991 (5th Cir.1983)); see also Costello, 299 B.R. at 895 (noting that courts can deduce fraudulent intent" } ]

[ { "docid": "22494531", "title": "", "text": "PER CURIAM. Petitioners are primarily nonprofit organizations that provide health insurance to their employees. Federal regulations require petitioners to cover certain contraceptives as part of their health plans, unless petitioners submit a form either to their insurer or to the Federal Government, stating that they object on religious grounds to providing contraceptive coverage. Petitioners allege that submitting this notice substantially burdens the exercise of their religion, in violation of the Religious Freedom Restoration Act of 1993, 107 Stat. 1488, 42 U.S.C. § 2000bb et seq . Following oral argument, the Court requested supplemental briefing from the parties addressing \"whether contraceptive coverage could be provided to petitioners' employees, through petitioners' insurance companies, without any such notice from petitioners.\" Post, p. 1561. Both petitioners and the Government now confirm that such an option is feasible. Petitioners have clarified that their religious exercise is not infringed where they \"need to do nothing more than contract for a plan that does not include coverage for some or all forms of contraception,\" even if their employees receive cost-free contraceptive coverage from the same insurance company. Supplemental Brief for Petitioners 4. The Government has confirmed that the challenged procedures \"for employers with insured plans could be modified to operate in the manner posited in the Court's order while still ensuring that the affected women receive contraceptive coverage seamlessly, together with the rest of their health coverage.\" Supplemental Brief for Respondents 14-15. In light of the positions asserted by the parties in their supplemental briefs, the Court vacates the judgments below and remands to the respective United States Courts of Appeals for the Third, Fifth, Tenth, and D.C. Circuits. Given the gravity of the dispute and the substantial clarification and refinement in the positions of the parties, the parties on remand should be afforded an opportunity to arrive at an approach going forward that accommodates petitioners' religious exercise while at the same time ensuring that women covered by petitioners' health plans \"receive full and equal health coverage, including contraceptive coverage.\" Id., at 1. We anticipate that the Courts of Appeals will allow the parties sufficient time to" } ]

[ { "docid": "21773030", "title": "", "text": "which Wheaton College could comply with the Contraceptive Mandate without informing its health insurer or third-party administrator: The Court permitted Wheaton College to “inform[ ] the Secretary of Health and Human Service in writing that it ... has religious objections to providing coverage for contraceptive services. Id. at 2807. In response to Hobby Lobby and Wheaton College, the Agencies issued a third set of IFRs to augment the Accommodation Process to comply with the Supreme Court’s orders. See 79 Fed. Reg. 51092, 51118 (expanding the Accommodation Process to include for-profit corporations and to adjust the Accommodation Process). The Agencies finalized the IFRs on July 14, 2015 (“Third Religious Exemption”). See 80 Fed. Reg. 41318, 41324. One year later, the Supreme Court granted certiorari to decide whether the Accommodation Process violated RFRA. The question before the Supreme Court was whether the requirement to notify plaintiffs’ insurers of their religious objections substantially burdened their exercise of religion in violation of RFRA. The Supreme Court did not address the question head on. Rather, it vacated the judgments of the courts of appeals and remanded the cases to provide the parties “an opportunity to arrive at an approach going forward that accommodates petitioners’ religious exercise while at the same time ensuring that women covered by petitioners’ health plans ‘receive full and equal health coverage, including contraceptive coverage.’” Zubik v. Burwell, — U.S. -, 136 S.Ct. 1557, 1560, 194 L.Ed.2d 696 (2016). The Agencies then issued a Request for Information (“RFI”) seeking public comment on options for modifying the Accommodation Process in light of Zubik. See 81 Fed. Reg. 47741. On January 9, 2017, the Department of Labor announced that \"it was unable to develop an approach that could “resolve the concerns of religious objectors, while still ensuring that the affected women receive full and equal health coverage, including contraceptive coverage.” Department of Labor, FAQs about Affordable Care Act Implementation Part 36 (Jan. 9, 2017). Executive Order 13798: “Promoting Free Speech and Religious Liberty” On May 4, 2017, President Trump issued an Executive Order “Promoting Free Speech and Religious Liberty.” Exec. Order No. 13798, '82" }, { "docid": "19454505", "title": "", "text": "rule altered the definition of an eligible religious employer by dropping the first three requirements, id. at 39,874, and it also provided an accommodation process for religious nonprofit organizations that did not meet this new definition. Such a religious nonprofit employer could avail itself of the accommodation if it (1) had religious objections to providing coverage for some or all of the required contraceptive services; (2) was \"organized and operate[d] as a nonprofit entity;\" (3) \"[held] itself out as a religious organization;\" and (4) \"self-certifie[d] that it satisfie[d] the first three criteria.\" Id. Once an employer made this self-certification to its insurer or third-party administrator, that entity would provide the mandated contraceptive services directly to women covered under the employer's plan. Id. at 39,875. Later, the Departments issued another rule that allowed entities eligible for the accommodation to directly notify HHS of a religious objection. 80 Fed. Reg. 41,318, 41,323 (July 14, 2015). Through these two regulations, the self-certification accommodation sought to ensure that qualifying employers did not need to \"contract, arrange, pay, or refer for contraceptive coverage,\" but their \"plan participants and beneficiaries ... [would] still benefit from separate payments for contraceptive services without cost sharing or other charge,\" as required by law. 78 Fed. Reg. at 39,874. B Two months after the final rule was issued in 2013, the Little Sisters of the Poor Home for the Aged, Denver, Colorado and the Little Sisters of the Poor, Baltimore, Inc. filed suit in the United States District Court for the District of Colorado. They claimed the contraceptive mandate was unconstitutional and that it violated the Religious Freedom Restoration Act (RFRA) and the Administrative Procedure Act (APA). See Little Sisters of the Poor Home for the Aged v. Sebelius , 6 F.Supp.3d 1225, 1232-33 (D. Colo. 2013). With respect to RFRA, the Little Sisters asserted that the self-certification accommodation would force them to \"take actions that directly cause others to provide contraception or appear to participate in the Departments' delivery scheme,\" both of which would violate their religious conviction \"that deliberately avoiding reproduction through medical means is immoral.\" Little Sisters" }, { "docid": "19523711", "title": "", "text": "14, 2015); see also Burwell v. Hobby Lobby Stores, Inc. , --- U.S. ----, 134 S.Ct. 2751, 2785, 189 L.Ed.2d 675 (2014). Second, instead of directly sending a copy of the self-certification form to the insurance provider, an eligible organization could simply notify the Department of Health and Human Services in writing, and the agencies then would inform the provider of its regulatory obligations. 80 Fed. Reg. at 41,323 ; see also Wheaton Coll. v. Burwell , --- U.S. ----, 134 S.Ct. 2806, 2807, 189 L.Ed.2d 856 (2014). Various employers then challenged the amended accommodation as a violation of the Religious Freedom Restoration Act (RFRA). Zubik v. Burwell , --- U.S. ----, 136 S.Ct. 1557, 1559, 194 L.Ed.2d 696 (2016) (per curiam). The actions reached the Supreme Court, but, instead of deciding the merits of the claims, the Supreme Court vacated and remanded to afford the parties \"an opportunity to arrive at an approach going forward that accommodates petitioners' religious exercise while at the same time ensuring that women covered by petitioners' health plans receive full and equal health coverage, including contraceptive coverage.\" Id. (internal quotation marks and citation omitted). The agencies solicited comments on the accommodation in light of Zubik , but ultimately declined to make further changes to the accommodation. Dep't of Labor, FAQS ABOUT AFFORDABLE CARE ACT IMPLEMENTATION PART36, at 4, www.dol.gov/sites/default/files/ebsa/about-ebsa/our-activities/resource-center/faqs/aca-part-36.pdf. B. On May 4, 2017, the President issued an executive order directing the secretaries of the agencies to \"consider issuing amended regulations, consistent with applicable law, to address conscience-based objections to\" the ACA's contraceptive coverage requirement. Promoting Free Speech and Religious Liberty, Exec. Order No. 13,798, 82 Fed. Reg. 21,675, 21,675 (May 4, 2017). On October 6, 2017, the agencies effectuated the two IFRs challenged here, without prior notice and comment. The religious exemption IFR expanded the categorical exemption to all entities \"with sincerely held religious beliefs objecting to contraceptive or sterilization coverage\" and made the accommodation optional for such entities. Religious Exemptions and Accommodations for Coverage of Certain Preventive Services Under the Affordable Care Act, 82 Fed. Reg. 47,792, 47,807 -08 (Oct. 13, 2017)." }, { "docid": "21773031", "title": "", "text": "the courts of appeals and remanded the cases to provide the parties “an opportunity to arrive at an approach going forward that accommodates petitioners’ religious exercise while at the same time ensuring that women covered by petitioners’ health plans ‘receive full and equal health coverage, including contraceptive coverage.’” Zubik v. Burwell, — U.S. -, 136 S.Ct. 1557, 1560, 194 L.Ed.2d 696 (2016). The Agencies then issued a Request for Information (“RFI”) seeking public comment on options for modifying the Accommodation Process in light of Zubik. See 81 Fed. Reg. 47741. On January 9, 2017, the Department of Labor announced that \"it was unable to develop an approach that could “resolve the concerns of religious objectors, while still ensuring that the affected women receive full and equal health coverage, including contraceptive coverage.” Department of Labor, FAQs about Affordable Care Act Implementation Part 36 (Jan. 9, 2017). Executive Order 13798: “Promoting Free Speech and Religious Liberty” On May 4, 2017, President Trump issued an Executive Order “Promoting Free Speech and Religious Liberty.” Exec. Order No. 13798, '82 Fed. Reg. 21675. The Order directed the Agencies to “consider issuing amended regulations, consistent with applicable law, to address conscience-based objections to the preventive-care mandate promulgated under [the Women’s Health Amendment.]” Id. § 3. Fourth Religious Exemption and Accommodation Process The Agencies issued the New IFRs on October 6, 2017, citing a goal, of being “consistent with the President’s Executive Order and the Government’s desire to resolve the pending litigation and prevent future litigation from similar plaintiffs.” See 82 Fed. Reg. 47792 (“Religious Exemption Rule”); 82 Fed. Reg. 47838 (“Moral Exemption Rule”). The New IFRs embodied two exemptions to the Contraceptive Mandate. First, under the Religious Exemption Rule, any non-profit or for-profit entity, whether closely held or publicly traded, may claim the exemption based on sincerely held religious beliefs. Second, under the Moral Exemption Rule, any non-profit or for-profit entity, so long as it is closely held, may claim the exemption based on sincerely held moral convictions. The Religious Exemption and Moral Exemption Rules make significant changes from prior exemptions. First, the new rules greatly" }, { "docid": "1823960", "title": "", "text": "injunction for Appellants CNS Corporation; Ozark National Life Insurance Company; and N.I.S. Financial Services, Inc. . Treasury and HHS regulations were similarly revised, but we cite only to DOL regulations unless otherwise indicated. . After the Supreme Court's decision in Hobby Lobby, the government revised the relevant regulations effective September 14, 2015, to extend this accommodation to certain closely held for-profit entities that have a religious objection to providing coverage for some or all of the FDA-approved contraceptive methods. See 80 Fed.Reg. 41,318 (July 14, 2015). . A self-insured employer bears the financial risk of paying its employees’ health-insurance claims rather than contracting with a separate insurance company to provide the coverage and bear the financial risk. A self-insured employer often hires a third-party administrator to manage administrative functions like processing claims. See, e.g., 1A Steven Plitt, et al., Couch on Insurance § 10:1 n. 1 (3d ed.2013). Because CNS and HCC offer self-insured plans, we focus our discussion on regulations applicable to those plans. . This self-certification method was added to the regulations after the Supreme Court’s order in Wheaton College v. Burwell, - U.S. -, 134 S.Ct. 2806, 189 L.Ed.2d 856 (2014). Wheaton College, a religious organization, challenged the accommodation process, arguing that completing Form 700 and forwarding the Form to its insurance issuer made it complied: in the provision of contraceptive coverage in violation of its religious beliefs. The Supreme Court granted injunctive relief, enjoining the government from enforcing the contraceptive mandate while the college’s challenge to the accommodation process was pending, provided that the college inform HHS \"in writing that it is a nonprofit organization that holds itself out as religious and has religious objections to providing coverage for contraceptive services.” Id. at 2807. The college was not required to self-certify using Form 700. Id. The Court also stated, \"Nothing in this order precludes the Government from relying on this notice, to the extent it considers it necessary, to facilitate the provision of full contraceptive coverage under the” ACA to Wheaton College’s employees and students. Id. . It is not clear whether the ACA’s implementing regulations" }, { "docid": "19618101", "title": "", "text": "of the dispute, requesting instead \"supplemental briefing from the parties addressing 'whether contraceptive coverage could be provided to petitioners' employees, through petitioners' insurance companies, without any such notice from petitioners.' \" Id. at 1559-60. After the parties agreed that \"such an option [was] feasible,\" the Supreme Court remanded to afford them \"an opportunity to arrive at an approach going forward that accommodates petitioners' religious exercise while at the same time ensuring that women covered by petitioners' health plans receive full and equal health coverage, including contraceptive coverage.\" Id. at 1560 (internal quotation marks omitted). Again, though, the Court \"express[ed] no view on the merits of the cases,\" and refrained from \"decid[ing] whether petitioners' religious exercise has been substantially burdened, whether the [g]overnment has a compelling interest, or whether the current regulations are the least restrictive means of serving that interest.\" Id. Following the remand the Agencies reached an impasse. After reviewing over 50,000 comments submitted in response to a request for information, the Agencies concluded that there was \"no feasible approach ... at this time that would resolve the concerns of religious objectors, while still ensuring that the affected women receive full and equal health coverage, including contraceptive coverage.\" Dep't of Labor, FAQs About Affordable Care Act Implementation Part 36 , at 4 (2016), available at https://www.dol.gov/sites/default/files/ebsa/about-ebsa/our-activities/resource-center/faqs/aca-part-36.pdf. F. 2017 IFRs & First Preliminary Injunction On May 4, 2017, President Donald Trump issued an Executive Order entitled \" Promoting Free Speech and Religious Liberty.\" Exec. Order No. 13798, 82 Fed. Reg. 21,675 (May 4, 2017). The Order directed the Agencies to \"consider issuing amended regulations, consistent with applicable law, to address conscience-based objections to the preventive-care mandate promulgated under [the Women's Health Amendment].\" Id. at § 3. On October 6, 2017, aiming to be \"[c]onsistent with the President's Executive Order and the Government's desire to resolve the pending litigation and prevent future litigation from similar plaintiffs,\" Religious Exemptions and Accommodations for Coverage of Certain Preventive Services Under the Affordable Care Act , 82 Fed. Reg. 47,792, 47,799 (Oct. 13, 2017), the Agencies issued two, new IFRs, referred to as the Religious" }, { "docid": "10761702", "title": "", "text": "appeal in two suits brought by religious non-profit organizations, including the Little Sisters, that objected to the accommodation scheme. See Wheaton Coll. v. Burwell, — U.S.-, 134 S.Ct. 2806, 189 L.Ed.2d 856 (2014); Little Sisters of the Poor Home for the Aged, Denver, Colo. v. Sebelius, — U.S. -, 134 S.Ct. 1022, 187 L.Ed.2d 867 (2014). In a third suit, the Court declined to recall or stay a circuit court mandate in favor of the Government, but granted an injunction to religious non-profit organizations pending final disposition of their petition for certio-rari. See Zubik v. Burwell, Nos. 14A1065, 14-1418, — U.S. -, 135 S.Ct. 2924, 2924,-L.Edüd-, 2015 WL 3947586, at *1 (2015). The injunctions allowed the organizations to notify HHS directly of their religious objection to the. Mandate rather than sending the Form to their health insurance issuers or TPAs. In response to the injunction in Wheaton College, the Departments issued an interim final rule on August 27, 2014, creating an alternative accommodation for religious non-profit organizations. Coverage of Certain Preventive Services Under the Affordable Care Act, 79 Fed.Reg. 51,092, 51,092 (Aug. 27, 2014). These regulations relieve a religious non-profit organization from complying with the Mandate if it notifies HHS in writing of its religious objection to the provision of some or all contraceptive services. Id. at 51,094. The notice may be sent by letter or email, and must contain (1) “the name of the eligible organization and the basis on which it qualifies for an accommodation,” (2) “its objection based on sincerely held religious beliefs to providing coverage of some or all contraceptive services,” including any particular subset to which it objects; (3) the name and type of the group health plan; and (4) the name and contact information for any of the plan’s TPAs and/or health insurance issuers. Id. at 51,094-95. According to the Departments, these requirements constitute “the minimum information necessary for the Departments to determine which entities are covered by the accommodation, to administer the accommodation, and to implement the policies in the July 2013 final regulations.” Id. at 51,095. The revised regulations also repeal the" }, { "docid": "19454504", "title": "", "text": "day in the noncompliance period with respect to each individual to whom such failure relates.\" 26 U.S.C. § 4980D(b)(1). In common parlance, this coverage has come to be known as the \"contraceptive mandate.\" In 2011, HHS, along with the United States Departments of Labor and Treasury (collectively, the Departments) promulgated interim final regulations exempting certain religious employers from the contraceptive mandate. 76 Fed. Reg. 46,621 (Aug. 3, 2011). To be eligible, a religious employer had to (1) have the inculcation of religious values as its purpose; (2) primarily employ people who share its religious tenets; (3) primarily provide services to persons who share its religious tenets; and (4) be a church, its integrated auxiliary, a convention or association of a church, or \"the exclusively religious activities of any religious order.\" Id. at 46,623 ; see also 26 U.S.C. § 6033(a)(3)(A)(i), (iii). Almost two years after the interim final regulations were promulgated, the Departments issued a final rule in response to public input and various legal challenges. 78 Fed. Reg. 39,870 (July 2, 2013). That final rule altered the definition of an eligible religious employer by dropping the first three requirements, id. at 39,874, and it also provided an accommodation process for religious nonprofit organizations that did not meet this new definition. Such a religious nonprofit employer could avail itself of the accommodation if it (1) had religious objections to providing coverage for some or all of the required contraceptive services; (2) was \"organized and operate[d] as a nonprofit entity;\" (3) \"[held] itself out as a religious organization;\" and (4) \"self-certifie[d] that it satisfie[d] the first three criteria.\" Id. Once an employer made this self-certification to its insurer or third-party administrator, that entity would provide the mandated contraceptive services directly to women covered under the employer's plan. Id. at 39,875. Later, the Departments issued another rule that allowed entities eligible for the accommodation to directly notify HHS of a religious objection. 80 Fed. Reg. 41,318, 41,323 (July 14, 2015). Through these two regulations, the self-certification accommodation sought to ensure that qualifying employers did not need to \"contract, arrange, pay, or refer" }, { "docid": "19523709", "title": "", "text": "any \"[FDA] approved contraceptive methods, sterilization procedures, and patient education and counseling.\" Group Health Plans and Health Insurance Issuers Relating to Coverage of Preventive Services Under the Patient Protection and Affordable Care Act, 77 Fed. Reg. 8,725 -01, 8,725 (Feb. 15, 2012). The three agencies responsible for implementing the ACA-the Department of Health and Human Services, the Department of Labor, and the Department of the Treasury (collectively, agencies)-issued regulations requiring coverage of all preventive services contained in HRSA's guidelines. See, e.g. , 45 C.F.R. § 147.130(a)(1)(iv) (DHSS regulation). The agencies also recognized that religious organizations may object to the use of contraceptive care and offering health insurance that covers such care. For those organizations, the agencies provided two avenues. First, group health plans of certain religious employers, such as churches, are categorically exempt from the contraceptive coverage requirement. Coverage of Certain Preventive Services Under the Affordable Care Act, 78 Fed. Reg. 39,870, 39,874 (July 2, 2013). Second, nonprofit \"eligible organizations\" that are not categorically exempt can opt out of having to \"contract, arrange, pay, or refer for contraceptive coverage.\" Id. To be eligible, the organization must file a self-certification form stating (1) that it \"opposes providing coverage for some or all of any contraceptive services required to be covered under [the regulation] on account of religious objections,\" (2) that it \"is organized and operates as a nonprofit entity,\" and (3) that it \"holds itself out as a religious organization.\" Id. at 39,892. The organization sends a copy of the form to its insurance provider, which must then provide contraceptive coverage for the organization's employees and cannot impose any charges related to the coverage. Id. at 39,876. The regulations refer to this second avenue as the \"accommodation,\" and it was designed to avoid imposing on organizations' beliefs that paying for or facilitating coverage for contraceptive care violates their religion. Id. at 39,874. The agencies subsequently amended the accommodation in response to several legal challenges. First, certain closely-held for-profit organizations became eligible for the accommodation. Coverage of Certain Preventive Services Under the Affordable Care Act, 80 Fed. Reg. 41,318 -01, 41,343 (July" }, { "docid": "19454508", "title": "", "text": "remanded the cases, directing the parties to attempt \"to arrive at an approach going forward that accommodates petitioners' religious exercise while at the same time ensuring that women covered by petitioners' health plans receive full and equal health coverage, including contraceptive coverage.\" Id. at 1560 (internal quotation marks and citation omitted). The Court found its instruction appropriate in light of \"the substantial clarification and refinement in the positions of the parties\" over the course of the litigation. Id. Finally, it \"anticipate[d] that the Courts of Appeals [would] allow the parties sufficient time to resolve any outstanding issues between them,\" id. , and it noted that the litigation sufficed to give the government notice of the petitioners' objections, such that \"the Government may not impose taxes or penalties on petitioners for failure to provide the relevant notice,\" id. at 1561. C Two months after Zubik was decided, the Departments issued a request for information on \"alternative ways ... to obtain an accommodation, while still ensuring that women enrolled in the organizations' health plans have access to seamless coverage of the full range of ... approved contraceptives without cost sharing.\" 81 Fed. Reg. 47,741, 47,741 (July 22, 2016). Six months later, the Departments concluded that no such \"feasible approach\" existed \"at this time.\" DEP'T OF LABOR , FAQs About Affordable Care Act Implementation Part 36 at 4 (Jan. 9, 2017), available at https://www.dol.gov/sites/default/files/ebsa/about-ebsa/ouractivities/resource-center/faqs/aca-part-36.pdf. In May 2017, President Trump issued an executive order that directed the Departments to \"consider issuing amended regulations, consistent with applicable law, to address conscience-based objections to the preventive-care mandate.\" Exec. Order No. 13,798, 82 Fed. Reg. 21,675, 21,675 (May 4, 2017). In response, the Departments issued two interim final rules (IFRs), one providing for a \"religious exemption\" and the other providing for a \"moral exemption.\" Most relevant to this appeal, the \"religious exemption\" IFR applies to \"entities, and individuals, with sincerely held religious beliefs objecting to contraceptive or sterilization coverage,\" including \"for-profit entities that are not closely-held.\" 82 Fed. Reg. 47,792, 47,808, 47,810 (Oct. 13, 2017). It also eliminates the need for exempt entities to comply with the" }, { "docid": "19523710", "title": "", "text": "refer for contraceptive coverage.\" Id. To be eligible, the organization must file a self-certification form stating (1) that it \"opposes providing coverage for some or all of any contraceptive services required to be covered under [the regulation] on account of religious objections,\" (2) that it \"is organized and operates as a nonprofit entity,\" and (3) that it \"holds itself out as a religious organization.\" Id. at 39,892. The organization sends a copy of the form to its insurance provider, which must then provide contraceptive coverage for the organization's employees and cannot impose any charges related to the coverage. Id. at 39,876. The regulations refer to this second avenue as the \"accommodation,\" and it was designed to avoid imposing on organizations' beliefs that paying for or facilitating coverage for contraceptive care violates their religion. Id. at 39,874. The agencies subsequently amended the accommodation in response to several legal challenges. First, certain closely-held for-profit organizations became eligible for the accommodation. Coverage of Certain Preventive Services Under the Affordable Care Act, 80 Fed. Reg. 41,318 -01, 41,343 (July 14, 2015); see also Burwell v. Hobby Lobby Stores, Inc. , --- U.S. ----, 134 S.Ct. 2751, 2785, 189 L.Ed.2d 675 (2014). Second, instead of directly sending a copy of the self-certification form to the insurance provider, an eligible organization could simply notify the Department of Health and Human Services in writing, and the agencies then would inform the provider of its regulatory obligations. 80 Fed. Reg. at 41,323 ; see also Wheaton Coll. v. Burwell , --- U.S. ----, 134 S.Ct. 2806, 2807, 189 L.Ed.2d 856 (2014). Various employers then challenged the amended accommodation as a violation of the Religious Freedom Restoration Act (RFRA). Zubik v. Burwell , --- U.S. ----, 136 S.Ct. 1557, 1559, 194 L.Ed.2d 696 (2016) (per curiam). The actions reached the Supreme Court, but, instead of deciding the merits of the claims, the Supreme Court vacated and remanded to afford the parties \"an opportunity to arrive at an approach going forward that accommodates petitioners' religious exercise while at the same time ensuring that women covered by petitioners' health plans receive" }, { "docid": "9170604", "title": "", "text": "issue from late 2014 to early 2016. Eight circuits held that the Accommodation did not substantially burden religious exercise; one held that it did. The Supreme Court granted certiorari in some of these cases (from the Third, Fifth, Tenth, and D.C. Circuits). In a per curiam opinion, it vacated and remanded, instructing that the parties \"be afforded an opportunity to arrive at an approach going forward that accommodates petitioners' religious exercise while at the same time ensuring that women covered by petitioners' health plans receive full and equal health coverage, including contraceptive coverage.\" Zubik v. Burwell, --- U.S. ----, 136 S.Ct. 1557, 1560, 194 L.Ed.2d 696 (2016) (per curiam) (internal quotation marks omitted). After Zubik, the Departments sought comment in July 2016 through a request for information, seeking alternative ways in which the contraceptive coverage mandate and employers' religious beliefs could coexist. Coverage for Contraceptive Services, 81 Fed. Reg. 47,741, 47,741 (July 22, 2016). The Departments ultimately stated that, though they received 54,000 public comments after this request, \"includ[ing] [from] the plaintiffs in Zubik, ... consumer advocacy groups, women's organizations [and] health insurance issuers,\" by September 20, 2016, \"no feasible approach has been identified at this time that would resolve the concerns of religious objectors, while still ensuring that the affected women receive full and equal health coverage, including contraceptive coverage.\" United States Department of Labor, FAQs About Affordable Care Act Implementation Part 36, at 4 (Jan. 9, 2017). 3. President's Executive Order and Interim Final Rules on Exemptions On May 4, 2017, the President issued an Executive Order \" Promoting Free Speech and Religious Liberty.\" Exec. Order No. 13,798, 82 Fed. Reg. 21,675 (May 4, 2017). This Order directed the Departments to \"consider issuing amended regulations, consistent with applicable law, to address conscience-based objections to the preventive-care mandate promulgated under [ 42 U.S.C. §] 300gg-13(a)(4).\" Id. Several months later, the Departments issued two IFRs: a religious exemption IFR and a separate moral exemption IFR, both effective immediately on publication, on October 6, 2017. See 82 Fed. Reg. at 47,792; 82 Fed. Reg. 47,838. The IFRs included a request for" }, { "docid": "19618100", "title": "", "text": "Under the Affordable Care Act , 79 Fed. Reg. 51,118, 51,121 (Aug. 27, 2014). Furthermore, the Agencies issued an interim final rule, effective immediately, that provided \"an alternative process\" for eligible organizations to self-certify \"consistent with the Wheaton order.\" Coverage of Certain Preventive Services Under the Affordable Care Act , 79 Fed. Reg 51,092, 51,094 -96 (Aug. 27, 2014). On July 14, 2015, the Agencies issued a rule that finalized the extended accommodation and alternative self-certification process. Coverage of Certain Preventive Services Under the Affordable Care Act , 80 Fed. Reg. 41,318, 41,323 -24 (July 14, 2015). E. Zubik Remand & Impasse On May 16, 2016, the Supreme Court issued its third decision regarding the Contraceptive Mandate. In Zubik v. Burwell , --- U.S. ----, 136 S.Ct. 1557, 194 L.Ed.2d 696 (2016) (per curiam), several organizations eligible for the accommodation challenged the self-certification process on the grounds that the requirement to submit a notice either to their insurer or the federal government violated RFRA. Id. at 1559. The Supreme Court declined to reach the merits of the dispute, requesting instead \"supplemental briefing from the parties addressing 'whether contraceptive coverage could be provided to petitioners' employees, through petitioners' insurance companies, without any such notice from petitioners.' \" Id. at 1559-60. After the parties agreed that \"such an option [was] feasible,\" the Supreme Court remanded to afford them \"an opportunity to arrive at an approach going forward that accommodates petitioners' religious exercise while at the same time ensuring that women covered by petitioners' health plans receive full and equal health coverage, including contraceptive coverage.\" Id. at 1560 (internal quotation marks omitted). Again, though, the Court \"express[ed] no view on the merits of the cases,\" and refrained from \"decid[ing] whether petitioners' religious exercise has been substantially burdened, whether the [g]overnment has a compelling interest, or whether the current regulations are the least restrictive means of serving that interest.\" Id. Following the remand the Agencies reached an impasse. After reviewing over 50,000 comments submitted in response to a request for information, the Agencies concluded that there was \"no feasible approach ... at this time" }, { "docid": "21773029", "title": "", "text": "published final regulations on July 2, 2013 (“Second Religious Exemption”). See 78 Fed. Reg. 39870. These regulations redefined a religious employer to only refer to churches, their integrated auxiliaries, and conventions or associations of churches, eliminating the need to fulfill the first three requirements of the prior regulations of the exemption. Upon a covered entity claiming the exemption, the provider or administrator would then have to provide the legally required contraceptive services directly to women covered under the employer’s plan (“Accommodation Process”). Third Religious Exemption and Accommodation Process Following enactment of the ACA and the Second Religious Exemption, the Supreme Court , granted certiorari to decide whether the Contraceptive Mandate violated the Religious Freedom Restoration Act, 42 U.S.C. § 2000bb-l (RFRA). In Burwell v. Hobby Lobby Stores, Inc., — U.S. -, 134 S.Ct. 2751, 189 L.Ed.2d 675 (2014), the Supreme Court concluded that applying the Contraceptive Mandate to closely held corporations violated RFRA. In Wheaton Coll. v. Burwell, — U.S. -, 134 S.Ct. 2806, 189 L.Ed.2d 856 (2014), the Court identified an alternative process by which Wheaton College could comply with the Contraceptive Mandate without informing its health insurer or third-party administrator: The Court permitted Wheaton College to “inform[ ] the Secretary of Health and Human Service in writing that it ... has religious objections to providing coverage for contraceptive services. Id. at 2807. In response to Hobby Lobby and Wheaton College, the Agencies issued a third set of IFRs to augment the Accommodation Process to comply with the Supreme Court’s orders. See 79 Fed. Reg. 51092, 51118 (expanding the Accommodation Process to include for-profit corporations and to adjust the Accommodation Process). The Agencies finalized the IFRs on July 14, 2015 (“Third Religious Exemption”). See 80 Fed. Reg. 41318, 41324. One year later, the Supreme Court granted certiorari to decide whether the Accommodation Process violated RFRA. The question before the Supreme Court was whether the requirement to notify plaintiffs’ insurers of their religious objections substantially burdened their exercise of religion in violation of RFRA. The Supreme Court did not address the question head on. Rather, it vacated the judgments of" }, { "docid": "9170602", "title": "", "text": "that provided an exemption from the requirement to provide contraceptive coverage to \"churches, their integrated auxiliaries, and conventions or associations of churches\" with religious objections to contraception. 76 Fed. Reg. at 46,623 ; see also 77 Fed. Reg. at 8,725. Later regulations also created what the Departments termed an \"accommodation\" process. Coverage of Certain Preventive Services Under the Affordable Care Act, 78 Fed. Reg. 39,870 (July 2, 2013). This process allowed nonprofit organizations, including colleges and universities, to submit a form to their health insurance issuers asserting their religious objections to contraception. See id. at 39,874 -77. The insurance issuer was then required to remove contraceptive coverage from the objecting organization's plan, but still had to provide contraceptive coverage to members of the plan (without directly involving the objecting organization) (the \"Accommodation\"). Id. at 39,875 -80. On June 30, 2014, the Supreme Court held in Hobby Lobby that the contraceptive regulatory requirement as applied to closely held corporations violated the Religious Freedom Restoration Act (\"RFRA\"), 42 U.S.C. § 2000bb-1 et seq. 573 U.S. at 736, 134 S.Ct. 2751. That was because the regulations \"clearly impose[d] a substantial burden\" on closely held employers who had religious objections to contraception, and the regulations were not the least restrictive means of furthering a compelling government interest (assuming arguendo that one existed). Id. at 726, 730-32, 134 S.Ct. 2751. The Supreme Court noted that the Accommodation already available to nonprofit organizations with religious objections was less restrictive than \"requiring employers to fund contraceptive methods that violate their religious beliefs.\" Id. at 730, 134 S.Ct. 2751. After Hobby Lobby, the Departments issued a new rule in 2015 which allowed \"Closely Held for-Profit Entit[ies]\" who had religious objections to providing contraceptive coverage to use the Accommodation process described above. Coverage of Certain Preventive Services Under the Affordable Care Act, 80 Fed. Reg. 41,318, 41,323 (July 14, 2015). Nevertheless, numerous religious nonprofit organizations sued to obtain an exemption similar to that provided to churches rather than the more limited Accommodation process (which still allowed for contraceptive coverage for employees of the objecting organizations). Nine circuits considered the" }, { "docid": "19523712", "title": "", "text": "full and equal health coverage, including contraceptive coverage.\" Id. (internal quotation marks and citation omitted). The agencies solicited comments on the accommodation in light of Zubik , but ultimately declined to make further changes to the accommodation. Dep't of Labor, FAQS ABOUT AFFORDABLE CARE ACT IMPLEMENTATION PART36, at 4, www.dol.gov/sites/default/files/ebsa/about-ebsa/our-activities/resource-center/faqs/aca-part-36.pdf. B. On May 4, 2017, the President issued an executive order directing the secretaries of the agencies to \"consider issuing amended regulations, consistent with applicable law, to address conscience-based objections to\" the ACA's contraceptive coverage requirement. Promoting Free Speech and Religious Liberty, Exec. Order No. 13,798, 82 Fed. Reg. 21,675, 21,675 (May 4, 2017). On October 6, 2017, the agencies effectuated the two IFRs challenged here, without prior notice and comment. The religious exemption IFR expanded the categorical exemption to all entities \"with sincerely held religious beliefs objecting to contraceptive or sterilization coverage\" and made the accommodation optional for such entities. Religious Exemptions and Accommodations for Coverage of Certain Preventive Services Under the Affordable Care Act, 82 Fed. Reg. 47,792, 47,807 -08 (Oct. 13, 2017). The moral exemption IFR expanded the categorical exemption to \"include additional entities and persons that object based on sincerely held moral convictions.\" Moral Exemptions and Accommodations for Coverage of Certain Preventive Services Under the Affordable Care Act, 82 Fed. Reg. 47,838, 47,849 (Oct. 13, 2017). It also \"expand[ed] eligibility for the accommodation to include organizations with sincerely held moral convictions concerning contraceptive coverage\" and made the accommodation optional for those entities. Id. California, Delaware, Maryland, New York, and Virginia sued the agencies and their secretaries in the Northern District of California. The states sought to enjoin the enforcement of the IFRs, alleging that they are invalid under the Administrative Procedure Act (APA), the Fifth Amendment equal protection component of the Due Process Clause, and the First Amendment Establishment Clause. The district court held that venue was proper and that the states had standing to challenge the IFRs. The district court then issued a nationwide preliminary injunction based on the states' likelihood of success on their APA claim-that the IFRs were procedurally invalid for failing to" }, { "docid": "20616129", "title": "", "text": "has a religious objection to providing coverage for the required contraceptive services, and send a copy to its insurance company or third-party administrator. See id. at 39,875; see also 29 C.F.R. § 2590.715-2713A(a)(4), (b)(l)(ii)(A), (c)(1)®. This one-page self-certification form requires only the name of the organization, and the name, title, and contact information of the person signing it. See Department of Labor, EBSA Form 700, http://www.dol.gov/ebsa/pdf/preventive serviceseligibleorganizationcertification form.pdf. Second, an alternative notification option stems from the Supreme Court’s orders in Little Sisters of the Poor Home for the Aged, Denver, Colorado v. Sebelius, — U.S.-, 134 S.Ct. 1022, 187 L.Ed.2d 867 (2014), and Wheaton College v. Burwell, — U.S.--, 134 S.Ct. 2806, 189 L.Ed.2d 856 (2014). In both orders, the Supreme Court granted injunctions pending appeal to non-profits covered by the accommodation, providing that instead of self-certifying using the Department of Labor’s one-page form, they could instead send a letter to HHS detailing their religious objections in their own words. HHS, in turn, would then be responsible for informing the nonprofits’ third-party administrators to begin providing separate contraceptive coverage to the non-profits’ employees. In August 2014, long after the district court’s judgment in this case, HHS issued new interim final rules for non-profits that essentially codified these orders. See Coverage of Certain Preventive Services Under the Affordable Care Act, 79 Fed.Reg. 51,092, 51,092 (Aug. 27, 2014). These rules were finalized in July 2015. See Coverage of Certain Preventive Services Under the Affordable Care Act, 80 Fed.Reg. 41,318, 41,323 (July 14, 2015). Under the new rules, an eligible organization can choose to either fill out the Department of Labor’s form and send it to its third-party administrator, or it can write to HHS directly using its own words or a sample letter provided by HHS. This notice to the government is not required to take a particular form, but must include information on the entity’s plan name and type, along with “the name and contact information for any of the plan’s third-party administrators and health insurance issuers.” 29 C.F.R. § 2590.715-2713A(b)(l)(ii)(B), (c)(l)(ii). Once an eligible organization chooses to take advantage of" }, { "docid": "9170603", "title": "", "text": "134 S.Ct. 2751. That was because the regulations \"clearly impose[d] a substantial burden\" on closely held employers who had religious objections to contraception, and the regulations were not the least restrictive means of furthering a compelling government interest (assuming arguendo that one existed). Id. at 726, 730-32, 134 S.Ct. 2751. The Supreme Court noted that the Accommodation already available to nonprofit organizations with religious objections was less restrictive than \"requiring employers to fund contraceptive methods that violate their religious beliefs.\" Id. at 730, 134 S.Ct. 2751. After Hobby Lobby, the Departments issued a new rule in 2015 which allowed \"Closely Held for-Profit Entit[ies]\" who had religious objections to providing contraceptive coverage to use the Accommodation process described above. Coverage of Certain Preventive Services Under the Affordable Care Act, 80 Fed. Reg. 41,318, 41,323 (July 14, 2015). Nevertheless, numerous religious nonprofit organizations sued to obtain an exemption similar to that provided to churches rather than the more limited Accommodation process (which still allowed for contraceptive coverage for employees of the objecting organizations). Nine circuits considered the issue from late 2014 to early 2016. Eight circuits held that the Accommodation did not substantially burden religious exercise; one held that it did. The Supreme Court granted certiorari in some of these cases (from the Third, Fifth, Tenth, and D.C. Circuits). In a per curiam opinion, it vacated and remanded, instructing that the parties \"be afforded an opportunity to arrive at an approach going forward that accommodates petitioners' religious exercise while at the same time ensuring that women covered by petitioners' health plans receive full and equal health coverage, including contraceptive coverage.\" Zubik v. Burwell, --- U.S. ----, 136 S.Ct. 1557, 1560, 194 L.Ed.2d 696 (2016) (per curiam) (internal quotation marks omitted). After Zubik, the Departments sought comment in July 2016 through a request for information, seeking alternative ways in which the contraceptive coverage mandate and employers' religious beliefs could coexist. Coverage for Contraceptive Services, 81 Fed. Reg. 47,741, 47,741 (July 22, 2016). The Departments ultimately stated that, though they received 54,000 public comments after this request, \"includ[ing] [from] the plaintiffs in Zubik, ..." }, { "docid": "19454507", "title": "", "text": "of the Poor Home for the Aged v. Burwell , 794 F.3d 1151, 1167-68 (10th Cir. 2015). They sought a preliminary injunction, which the district court denied. The Tenth Circuit affirmed, holding that the regulations did not violate RFRA because they did not substantially burden religious exercise. Id. at 1205. The Little Sisters sought certiorari, and the Supreme Court granted review in order to decide whether the self-certification accommodation violated RFRA. In addition to the Tenth Circuit's decision, the Court also granted certiorari to review decisions of the Third, Fifth, and D.C. Circuits, which were consolidated as Zubik v. Burwell , --- U.S. ----, 136 S.Ct. 1557, 194 L.Ed.2d 696 (2016) (per curiam). In Zubik , the Court did not answer the question \"whether petitioners' religious exercise ha[d] been substantially burdened.\" Id. at 1560. Instead, it explained that both the petitioners and the government had \"confirm[ed]\" that \"contraceptive coverage could be provided to petitioners' employees, through petitioners' insurance companies, without any ... notice from petitioners.\" Id. at 1559-60. It then vacated the underlying judgments and remanded the cases, directing the parties to attempt \"to arrive at an approach going forward that accommodates petitioners' religious exercise while at the same time ensuring that women covered by petitioners' health plans receive full and equal health coverage, including contraceptive coverage.\" Id. at 1560 (internal quotation marks and citation omitted). The Court found its instruction appropriate in light of \"the substantial clarification and refinement in the positions of the parties\" over the course of the litigation. Id. Finally, it \"anticipate[d] that the Courts of Appeals [would] allow the parties sufficient time to resolve any outstanding issues between them,\" id. , and it noted that the litigation sufficed to give the government notice of the petitioners' objections, such that \"the Government may not impose taxes or penalties on petitioners for failure to provide the relevant notice,\" id. at 1561. C Two months after Zubik was decided, the Departments issued a request for information on \"alternative ways ... to obtain an accommodation, while still ensuring that women enrolled in the organizations' health plans have access to" }, { "docid": "19618099", "title": "", "text": "make it complicit in the provision of contraceptives by triggering the obligation for someone else to provide the services to which it objects.\" Id. at 2808 (Sotomayor, J., dissenting). The Supreme Court granted the injunction, permitting Wheaton College to \"inform[ ] the Secretary of Health and Human Services in writing that it ... has religious objections to providing coverage for contraceptive services\"-that is, the college did not have to \"use the [self-certification] form prescribed by the [g]overnment.\" Id. at 2807 (per curiam). The Supreme Court warned, however, that the \"order should not be construed as an expression of the Court's views on the merits.\" Id. D. Regulatory Response to Hobby Lobby & Wheaton College The Agencies responded to Hobby Lobby and Wheaton College by issuing a notice of proposed rulemaking \"amend[ing] the definition of an eligible organization [for purposes of the accommodation] to include a closely held for-profit entity that has a religious objection to providing coverage for some or all of the contraceptive services otherwise required to be covered.\" Coverage of Certain Preventive Services Under the Affordable Care Act , 79 Fed. Reg. 51,118, 51,121 (Aug. 27, 2014). Furthermore, the Agencies issued an interim final rule, effective immediately, that provided \"an alternative process\" for eligible organizations to self-certify \"consistent with the Wheaton order.\" Coverage of Certain Preventive Services Under the Affordable Care Act , 79 Fed. Reg 51,092, 51,094 -96 (Aug. 27, 2014). On July 14, 2015, the Agencies issued a rule that finalized the extended accommodation and alternative self-certification process. Coverage of Certain Preventive Services Under the Affordable Care Act , 80 Fed. Reg. 41,318, 41,323 -24 (July 14, 2015). E. Zubik Remand & Impasse On May 16, 2016, the Supreme Court issued its third decision regarding the Contraceptive Mandate. In Zubik v. Burwell , --- U.S. ----, 136 S.Ct. 1557, 194 L.Ed.2d 696 (2016) (per curiam), several organizations eligible for the accommodation challenged the self-certification process on the grounds that the requirement to submit a notice either to their insurer or the federal government violated RFRA. Id. at 1559. The Supreme Court declined to reach the merits" } ]

[ { "docid": "10181646", "title": "", "text": "In re Williams, 11 B.R. 504, 4 C.B.C.2d 1028 (Bkrtcy.S.D.Tex., 1981); In re Pearson, 10 B.R. 189, 7 B.C.D. 567, 4 C.B.C.2d 57 (Bkrtcy.E.D.N.Y., 1981); In re LaPaglia, 8 B.R. 937, 7 B.C.D. 333, 3 C.B.C.2d 717 (Bkrtcy.E.D.N.Y., 1981); accord, In re Land, 14 B.R. 132, 8 B.C.D. 90 (Bkrtcy.N.D.Ohio, 1981). It is less clear to me than it obviously was to the Taddeo court that a “federally enacted policy” is being frustrated or debilitated in this situation. Since Chapter 13 of Title 11 is silent on the right of the Bankruptcy Court to reinstate a preacceleration payment schedule, such a policy, if found to exist, must be inferred from its incorporation in Chapter 11. The contrary is equally plausible as pointed out in In re Williams, 11 B.R. 504, 4 C.B.C.2d 1028 (Bkrtcy.S.D. Tex., 1981) where the court, at page 1031, noted: However, the court thinks that § 1124(2)(B) demonstrates that Congress was aware of the problems presented by accelerated debts and could have given Chapter 13 debtors the right to cure and reinstate accelerated secured debts on the residences of Chapter 13 debtors but simply chose not to do so. Furthermore section 103, which deals with the applicability of chapters, does not make § 1124 applicable to proceedings under Chapter 13. It must, in my opinion, be found, therefore, that subsection (b)(5) of Section 1322 will not avail the debtor whose note has been accelerated and the entire balance thereon declared due and owing, as by, for instance, the filing of a foreclosure action. The presence of subsection (5) appears to me to make subsection (3) inapplicable in this situation. As stated in In re Williams, Id., 11 B.R. 504, 4 C.B.C.2d at page 1030: Although § 1322(b)(3) states that any default may be cured or waived, it appears to the court that (b)(3) was not intended to apply where (b)(5) (which also provides that any default may be cured) is applicable. Congress provided in (b)(2) that the rights of holders of claims secured by the debtor's principal residence may not be modified by a plan. Congress further" } ]

[ { "docid": "1363602", "title": "", "text": "unsecured claims; (3) provide for the curing or waiving of any default; (5) notwithstanding paragraph (2) of this subsection, provide for the curing of any default within a reasonable time and maintenance of payments while the case is pending on any unsecured claim or secured claim on which the last payment is due after the date on which the final payment under the plan is due; (10) include any other appropriate provision not inconsistent with this title.” The case law under 11 U.S.C. § 1322(b) indicates that the courts are not in agreement over whether and under what circumstances a cure can be allowed once a default on a mortgage debt has triggered acceleration of the debt, a judgment or a sale. The differences in viewpoint may be generally categorized as follows: (1) Courts that hold that a debtor may not cure a default once a mortgage debt has been accelerated: In re Wilson, 11 B.R. 986 (Bkrtcy.S.D.N.Y.1981); Matter of LaPaglia, 8 B.R. 937 (Bkrtcy.E.D.N.Y.1981); In re Allen, 17 B.R. 119, 8 BCD 945 (Bkrtcy.N.D.Ohio 1981). (2) Courts that hold that a debtor may cure a default where the mortgage debt has been accelerated provided that no foreclosure judgment has been entered: Percy Wilson Mortgage & Finance Corp. v. McCurdy, 21 B.R. 535 (Bkrtcy.S.D.Ohio W.D.1982); In re Maiorino, 15 B.R. 254 (Bkrtcy.D.Conn.1981); In re Pearson, 10 B.R. 189 (Bkrtcy.E.D.N.Y.1981). (3) Courts hold that a debtor may cure a default where a state court judgment of foreclosure has been entered provided that no sale has taken place: In re Acevedo, 26 B.R. 994 (D.E.D.N.Y.1982); In re James, 20 B.R. 145, 9 BCD 208 (Bkrtcy.E.D.Mich.1982); In re Brantley, 6 B.R. 178 (Bkrtcy.N.D.Fla.1980). (4) Courts that place no express limitation on the debtor’s right to cure a default after acceleration: In re Taddeo, 685 F.2d 24 (2nd Cir.1982); In re Sapp, 11 B.R. 188 (Bkrtcy.S.D.Ohio E.D.1981); In re Davis, 16 B.R. 473 (D.Kan.1981). Or after a judgment has been entered: In re Young, 22 B.R. 620 (Bkrtcy.N.D.Ill.E.D.1982); In re Breuer, 4 B.R. 499, 6 BCD 136 (Bkrtcy.S.D.N.Y.1980). (5) Courts that hold that a" }, { "docid": "1363601", "title": "", "text": "permitted where, as here, a mortgage default has triggered a foreclosure judgment and sale of the property prior to the filing of a chapter 13 petition. The DVA further contends that it is entitled to the insurance proceeds under the terms of the insurance agreement. The issues before the court are as follows: (1) whether a chapter 13 debtor can cure a default on a residential mortgage after a final decree of foreclosure has been entered and a sale has been made; (2) if a post sale cure is permissible, whether it can be effected by paying the arrearages which triggered the default and the mortgage debt in full within the life of the plan; and (3)who is entitled to the insurance proceeds, the DVA or the debtors and the debtors’ attorney. 11 U.S.C. § 1322(b) provides that a chapter 13 plan may: “(2) modify the rights of holders of secured claims, other than a claim secured only by a security interest in real property that is the debtor’s principal residence, or of holders of unsecured claims; (3) provide for the curing or waiving of any default; (5) notwithstanding paragraph (2) of this subsection, provide for the curing of any default within a reasonable time and maintenance of payments while the case is pending on any unsecured claim or secured claim on which the last payment is due after the date on which the final payment under the plan is due; (10) include any other appropriate provision not inconsistent with this title.” The case law under 11 U.S.C. § 1322(b) indicates that the courts are not in agreement over whether and under what circumstances a cure can be allowed once a default on a mortgage debt has triggered acceleration of the debt, a judgment or a sale. The differences in viewpoint may be generally categorized as follows: (1) Courts that hold that a debtor may not cure a default once a mortgage debt has been accelerated: In re Wilson, 11 B.R. 986 (Bkrtcy.S.D.N.Y.1981); Matter of LaPaglia, 8 B.R. 937 (Bkrtcy.E.D.N.Y.1981); In re Allen, 17 B.R. 119, 8 BCD 945 (Bkrtcy.N.D.Ohio" }, { "docid": "21693692", "title": "", "text": "cure the default and reinstate the terms of the mortgage after any of these events would violate the language of subsection (b)(2), which prohibits modification of the rights of holders of claims “secured only by a security interest in real property that is the debtor’s principal residence.” The courts disagree over whether and under what circumstances section 1322(b) allows a cure once a default on a mortgage has triggered acceleration of the debt, a judgment or a sale. The bankruptcy court in In re Ivory, 32 B.R. 788 (Bankr.D.Or. 1983), grouped the differing viewpoints into the following general categories: (1) Courts that hold that a debtor may not cure a default once a mortgage debt has been accelerated: In re Wilson, 11 B.R. 986 (Bkrtcy.S.D.N.Y.1981); Matter of LaPaglia, 8 B.R. 937 (Bkrtcy.E.D.N.Y. 1981); In re Allen, 17 B.R. 119, 8 B.C.D. 945 (Bkrtcy.N.D.Ohio 1981). (2) Courts that hold that a debtor may cure a default where the mortgage debt has been accelerated provided that no foreclosure judgment has been entered: Percy Wilson Mortgage & Finance Corp. v. McCurdy, 21 B.R. 535 (Bkrtcy.S.D.Ohio W.D.1982); In re Maiorino, 15 B.R. 254 (Bkrtcy.D.Conn.1981); In re Pearson, 10 B.R. 189 (Bkrtcy.E.D.N.Y. 1981). (3) Courts [that] hold that a debtor may cure a default where a state court judgment of foreclosure has been entered provided that no sale has taken place: In re Acevedo, 26 B.R. 994 (D.E.D.N.Y.1982); In re James, 20 B.R. 145, 9 B.C.D. 208 (Bkrtcy.E.D.Mich.1982); In re Brantley, 6 B.R. 178 (Bkrtcy.N.D.Fla. 1980). (4) Courts that place no express limitation on the debtor’s right to cure a default after acceleration: In re Taddeo, 685 F.2d 24 (2nd Cir.1982); In re Sapp, 11 B.R. 188 (Bkrtcy.S.D.Ohio E.D.1981); In re Davis, 16 B.R. 473 (D.Kan.1981). Or after a judgment has been entered: In re Young, 22 B.R. 620 (Bkrtey.N.D.Ill.E.D.1982); In re Breuer, 4 B.R. 499, 6 B.C.D. 136 (Bkrtcy.S.D.N.Y.1980). (5) Courts that hold that a debtor may cure a default where a foreclosure sale has been held provided that the debtor’s right of redemption under state law has not expired: In re Johnson, 29" }, { "docid": "21693691", "title": "", "text": "security interest in real property that is the debtor’s principal residence, or of holders of unsecured claims; (3) provide for the curing or waiving of any default; (5) notwithstanding paragraph (2) of this subsection, provide for the curing of any default within a reasonable time and maintenance of payments while the case is pending on any unsecured claim or secured claim on which the last payment is due after the date on which the final payment under the plan is due; The mortgagees do not dispute that subsection (b)(5) permits a Chapter 13 debtor to cure a default on a long-term mortgage on the debtor’s principal residence. However, they contend that once the long-term debt has been accelerated, or a foreclosure judgment has been obtained, or a foreclosure sale has occurred, the claim is no longer one “on which the last payment is due after the date on which the final payment under the plan is due” and, therefore, is not subject to cure under subsection (b)(5). Moreover, they argue that allowing the debtor to cure the default and reinstate the terms of the mortgage after any of these events would violate the language of subsection (b)(2), which prohibits modification of the rights of holders of claims “secured only by a security interest in real property that is the debtor’s principal residence.” The courts disagree over whether and under what circumstances section 1322(b) allows a cure once a default on a mortgage has triggered acceleration of the debt, a judgment or a sale. The bankruptcy court in In re Ivory, 32 B.R. 788 (Bankr.D.Or. 1983), grouped the differing viewpoints into the following general categories: (1) Courts that hold that a debtor may not cure a default once a mortgage debt has been accelerated: In re Wilson, 11 B.R. 986 (Bkrtcy.S.D.N.Y.1981); Matter of LaPaglia, 8 B.R. 937 (Bkrtcy.E.D.N.Y. 1981); In re Allen, 17 B.R. 119, 8 B.C.D. 945 (Bkrtcy.N.D.Ohio 1981). (2) Courts that hold that a debtor may cure a default where the mortgage debt has been accelerated provided that no foreclosure judgment has been entered: Percy Wilson Mortgage & Finance" }, { "docid": "13796349", "title": "", "text": "not have an unsecured claim for the deficiency. This is an important departure from a few misguided decisions under current law, under which a secured creditor with a 12000 secured by household goods worth only $200 is entitled in some cases to his full $2000 claim, in preference to all unsecured creditors. H.Rep. 595, 95th Cong., 1st Sess. at 124, U.S. Code Cong. & Admin.News, p. 6085. .Section 1322(b) provides, in pertinent part, that: (b) ... the plan may (2) modify the rights of holders of secured claims, other than a claim secured only by a security interest in real property that is the debtor’s principal residence, or of holders of unsecured claims; (3) provide for the curing or waiving of any default; ... (5) notwithstanding paragraph (2) of this subsection, provide for the curing of any default within a reasonable time and maintenance of payments while the case is pending on any unsecured claim or secured claim on which the last payment is due after the date on which the final payment under the plan is due; (10) include any other appropriate provision not inconsistent with this title. (Emphasis added.) . Sable, A Chapter 13 Debtor’s Right to Cure Default Under Section 1322(b): A Problem of Interpretation, 57 Am.Bankr.L.J. 127, 128 (1983); Comment, Accelerated Mortgages: An Unsolved Problem of Interpretation in Chapter 13, 19 Hous.L.Rcv. 954, 971 (1982). . Three distinct lines of authority have developed. One line of cases holds that once a debt is accelerated, the debtor’s Chapter 13 right to cure the default is extinguished. See, e.g., In re Williams, 11 B.R. 504 (Bkrtcy.S.D.Tex.1981); In re LaPaglia, 8 B.R. 937 (Bkrtcy.E.D.N.Y.1981). Another line of cases has given the debtor the right to cure,pre-petition defaults. See, e.g., In re Taddeo, 685 F.2d 24 (2nd Cir.1982); In re Kokkinis, 22 B.R. 353 (Bkrtcy.N.D.Ill.1982). The third line of cases allows the debtor to cure a default on an accelerated debt unless there has been a judicial decree of foreclosure. See, e.g., In re Pearson, 10 B.R. 189 (Bkrtcy.E.D.N.Y.1981). . However, we should note that the clause, \"on which the" }, { "docid": "23156512", "title": "", "text": "13 to cure the default (§ 1322(b)(5)). In re Johnson, 6 B.R. 34, 6 B.C.D. 579 (Bkrtcy.N.D.Ill.1980); In re Hartford, 7 B.R. 914, 7 B.C.D. 145 (Bkrtcy. D.Maine 1981). There is uncertainty, however, on the correct result in the case where, as in this case, a judgment of foreclosure and sale has been entered, but the property has not yet been sold. Outside the Eastern District of New York, two courts have held after a judgment of foreclosure, or its equivalent, the secured creditor is entitled to payment of the full amount of the mortgaged debt, not simply arrearages. In re Coleman, 5 B.R. 812 (W.D.Ky.1980); In re Robertson, 4 B.R. 213 (Bkrtcy.D.Colo.1980). Other courts have indicated that satisfaction of the amount in default may be sufficient. United Companies Financial Corp. v. Brantley, 6 B.R. 179, 6 B.C.D. 932 (Bkrtcy.Fla.1980); In re Breuer, 4 B.R. 499, 1 C.B.C.2d 712 (Bkrtcy.S.D.N.Y.1980). In this District, one bankruptcy judge has concluded that acceleration of the entire mortgage debt by the creditor will by itself cut off the “right to cure a mortgage default under a Chapter 13 repayment plan as provided in Section 1322(b)(5) of the Code, 11 U.S.C. § 1322(b)(5).” In re LaPaglia, 8 B.R. 937 (B.C.E.D.N.Y.1981). This conclusion is based on the specific language of § 1322(b)(5), which describes the type of indebtedness covered as a claim on which “the last payment is due after the date on which the final payment under the plan is due.” Applying New York State law, Judge Price concluded that when a debt is accelerated, the debt is changed from “one payable at some time in the future and in installments, to one immediately payable in full.” However, another bankruptcy judge in this District would permit cure even after acceleration up to the time of actual sale pursuant to a judgment of foreclosure. In re Taddeo, 9 B.R. 299 (B.C.E.D.N.Y.1981). Judge Párente noted that the provisions of Chapter 13 should be read in pari materia with the provisions of Chapter 11, and that since “Chapter 11 extends the right of post acceleration cure to the" }, { "docid": "8341240", "title": "", "text": "§ 1322.01(3), (E) (15th Ed. 1981) which concludes, as follows: “The debtor may maintain the contract payments during the course of the Plan without acceleration by virtue of any pre-Petition default, by proposing to cure the default within a reasonable time. The debtor may avail himself of the provisions of § 1322(b)(5) even though the long term debt is secured only by a security interest in real property which is the principle residence of the debtor.” [emphasis added]. Other decisions interpreting § 1322(b)(5) implicitly support the same conclusion but do not reach the same result, on the rationale that the foreclosure proceedings had progressed to the point of being in judgment, treating the judgment rather than the debt secured by a mortgage itself as the basis for the creditors claim. It was concluded in those cases that the last payment on the obligation would be due after the final payment under the Plan is due. See In re Robertson, 4 B.R. 213, 6 B.C.D. 375, 2 C.B.C.2d 136 (Bkrtcy.D.Colo.1980); In re Canady, 9 B.R. 428, 7 B.C.D. 749, BLD ¶ 67906, 4 C.B.C.2d 113 (Bkrtcy.Conn.1981); In re Land, 14 B.R. 132, 8 B.C.D. 90, 5 C.B.C.2d 145 (Bkrtcy.N.D.Ohio 1981); In re Pearson, 10 B.R. 189, 7 B.C.D. 567, BLD ¶ 67942, 4 C.B.D.2d 57 (Bkrtcy.E.D.N.Y.1981); In re Jenkins, 14 B.R. 748, 8 B.C.D. 292, 3 BLD. ¶ 68394 (Bkrtcy.N.D.Ill.1981); In re Maiorino, 15 B.R. 254 (Bkrtcy.D.Conn.1981). These decisions leave the clear impression that if the mortgage obligations had not been reduced to judgment before the Chapter 13 case filings that those courts would have permitted curing of the mortgage default despite the fact that the mortgage obligation had been accelerated by adhesion clauses therein. A reading of §§ 1322(b)(5) and 1328(a)(1) of the Bankruptcy Code indicates that the intent of the Congress from the phrase “curing of any default,” as used in § 1322(b)(5), means placing the parties in the position they would have been if no default had occurred. The term “the last payment” cannot refer to the time when payment is due after acceleration, because acceleration is merely" }, { "docid": "10241006", "title": "", "text": "acceleration); In re Wilson, 11 B.R. 986 (Bkrtcy.S.D.N.Y.1981) (judgment); In re Williams, supra (contractual acceleration); In re Coleman, 5 B.R. 812 (U.S.D.Ct.Ky.1980) (judgment); (2) those which grant the right to cure an acceleration. See In re Taddeo, 9 B.R. 299 (Bkrtcy.E.D.N.Y.1981) aff’d. 15 B.R. 273 (U.S.D.Ct.E.D.N.Y.1981) (judgment); In re Rippe, 14 B.R. 367 (Bkrtcy.S.D.Fla.1981) (contractual acceleration); In re Sapp, 11 B.R. 188 (Bkrtcy.S.D.Ohio 1981) (contractual acceleration); In re Acevedo, 9 B.R. 852 (Bkrtcy.E.D.N.Y.1981) (judgment); In re Beckman, 9 B.R. 193, 7 B.C.D. 361 (Bkrtcy.N.D.Iowa 1981) (contractual acceleration); United Companies Financial Corp. v. Brantley, 6 B.R. 178, 6 B.C.D. 932 (Bkrtcy.N.D.Fla.1980) (judgment); In re Soderlund, 7 B.R. 44 (Bkrtcy.S.D.Ohio 1980) (contractual acceleration); In re Breuer, 4 B.R. 499 (Bkrtcy.S.D.N.Y.1980) (judgment); and (3) a third more limited group which deny the right to cure where a judicial decree has resulted in acceleration but do not reach the question of whether the debt- or may cure defaults in contractual accelerations. In re Pearson, supra; In re Canady, 9 B.R. 428, 7 B.C.D. 749 (Bkrtcy.D.Conn.1981); In re Jenkins, 14 B.R. 748 (Bkrtcy.N.D.Ill.1981); In re Maiorino, 15 B.R. 254 (Bkrtcy.D.Conn.1981). The question presented is one of statutory interpretation. Interestingly, the leading cases of the three different views come from three different Bankruptcy Judges all in the Eastern District of New York. The courts in group one have focused on the language of subsection (b)(5) and interpreted it to limit the right to cure to instances where the last payment due on the underlying debt is due after the final payment under the plan is due. They reason that acceleration of the debt has created a lump sum claim due immediately under state law and therefore it is not eligible for treatment under (b)(5). Those courts in group two arrive at their conclusions allowing de-acceleration through various reasoning. One leading case looks at the entire statutory scheme of Chapter 13 to arrive at the conclusion that Congress enacted liberal Chapter 13 provisions to encourage debtors to propose repayment plans and retain assets they might forfeit under a Chapter 7 proceeding. If the Chapter 13 debtor cannot" }, { "docid": "7731488", "title": "", "text": "Code Against this background of Delaware law the Court turns its attention to Chapter 13 of the Bankruptcy Code. The relevant provisions of Chapter 13 are found in sections 1322(b)(2), (3) and (5) which state: (b) ... the plan may— (2) modify the rights of holders of secured claims, other than a claim secured only by a security interest in real property that is the debtor’s principal residence, or of holders of unsecured claims; (3) provide for the curing or waiving of any default; (5) notwithstanding paragraph (2) of this subsection, provide for the curing of any default within a reasonable time and maintenance of payments while the case is pending on any unsecured claim or secured claim on which the last payment is due after the date on which the final payment under the plan is due; .... 11 U.S.C. § 1322(b). The case law interpreting these sections is in hopeless disarray. A recent survey states well this confusion in the existing case law. The bankruptcy court in In re Gwinn, 34 B.R. 936 (Bkrtcy.S.D.Ohio1983), explained: An examination of the reported cases indicates that five basic positions have emerged. A small minority of courts have held that deceleration/reinstitution is not available once the mortgagee has exercised his contractual right to accelerate, regardless of whether or not the mortgagee has obtained a judgment. See In re Soderlund [18 B.R. 12] (Dist.Ct. [(S.D.Ohio 1981)]), supra; Matter of Allen, 17 B.R. 119 (Bkrtcy.N.D.Ohio 1981); In re La Paglia, 8 B.R. 937 (Bkrtcy.E.D.N.Y.1981). Another, more sizeable group of cases have held that while deceleration is possible prior to judgment, it is no longer available once the mortgagee has obtained a judgment on the mortgage note. See In re Anderson [16 B.R. 697, (Bkrtcy.S.D.Ohio 1982) ], supra; In re White, 22 B.R. 542 (Bkrtcy.D.Del.1982); In re Mattocks, 15 B.R. 379 (Bkrtcy.E.D.N.Y.1981); In re Maiorino, 15 B.R. 254 (Bkrtcy.D.Conn.1981); In re Jenkins, 14 B.R. 748 (Bkrtcy.N.D.Ill.1981); In re Land, 14 B.R. 132 (Bkrtcy.N.D.Ohio 1981); Matter of Wilson, 11 B.R. 986 (Bkrtcy.S.D.N.Y.1981); In re Pearson, 10 B.R. 189 (Bkrtcy.E.D.N.Y.1981); In re Canady, 9 B.R. 428 (Bkrtcy.D.Conn.1981);" }, { "docid": "8341239", "title": "", "text": "one creditor seeks a preference in payment to the detriment of the estate by a forced sale of assets. Hence, we are constrained to concur with those decisions which provide that the acceleration of the debt is merely part and parcel of the default that gave rise to the foreclosure suit in the state court. Section 1322(b)(5) is intended to permit a debtor to cure any default, including a precipitated acceleration therefrom. It does not seem logical to conclude that the consequence of curing a default does not effect a reinstatement of the mortgage contract and the debt, since the mortgage is only security for the debt. See In re Acevedo, 9 B.R. 852, 4 C.B.C.2d 178, B.L.D. ¶ 67967 (Bkrtcy.E.D.N.Y.1981); In re Sapp, 11 B.R. 188 (Bkrtcy.S.D.Ohio 1981); In re Rippe, 14 B.R. 367 (Bkrtcy.S.D.Fla.1981); In re Taddeo, 9 B.R. 299, 7 B.C.D. 422, 4 C.B.C.2d 185, BLD ¶ 68093 (Bkrtcy.E.D.N.Y.1981); and In re Davis, 16 B.R. 473 (D.Kan.1981). A reputable treatise on bankruptcy law draws a similar conclusion. See 5 Collier on Bankruptcy § 1322.01(3), (E) (15th Ed. 1981) which concludes, as follows: “The debtor may maintain the contract payments during the course of the Plan without acceleration by virtue of any pre-Petition default, by proposing to cure the default within a reasonable time. The debtor may avail himself of the provisions of § 1322(b)(5) even though the long term debt is secured only by a security interest in real property which is the principle residence of the debtor.” [emphasis added]. Other decisions interpreting § 1322(b)(5) implicitly support the same conclusion but do not reach the same result, on the rationale that the foreclosure proceedings had progressed to the point of being in judgment, treating the judgment rather than the debt secured by a mortgage itself as the basis for the creditors claim. It was concluded in those cases that the last payment on the obligation would be due after the final payment under the Plan is due. See In re Robertson, 4 B.R. 213, 6 B.C.D. 375, 2 C.B.C.2d 136 (Bkrtcy.D.Colo.1980); In re Canady, 9 B.R. 428," }, { "docid": "21693693", "title": "", "text": "Corp. v. McCurdy, 21 B.R. 535 (Bkrtcy.S.D.Ohio W.D.1982); In re Maiorino, 15 B.R. 254 (Bkrtcy.D.Conn.1981); In re Pearson, 10 B.R. 189 (Bkrtcy.E.D.N.Y. 1981). (3) Courts [that] hold that a debtor may cure a default where a state court judgment of foreclosure has been entered provided that no sale has taken place: In re Acevedo, 26 B.R. 994 (D.E.D.N.Y.1982); In re James, 20 B.R. 145, 9 B.C.D. 208 (Bkrtcy.E.D.Mich.1982); In re Brantley, 6 B.R. 178 (Bkrtcy.N.D.Fla. 1980). (4) Courts that place no express limitation on the debtor’s right to cure a default after acceleration: In re Taddeo, 685 F.2d 24 (2nd Cir.1982); In re Sapp, 11 B.R. 188 (Bkrtcy.S.D.Ohio E.D.1981); In re Davis, 16 B.R. 473 (D.Kan.1981). Or after a judgment has been entered: In re Young, 22 B.R. 620 (Bkrtey.N.D.Ill.E.D.1982); In re Breuer, 4 B.R. 499, 6 B.C.D. 136 (Bkrtcy.S.D.N.Y.1980). (5) Courts that hold that a debtor may cure a default where a foreclosure sale has been held provided that the debtor’s right of redemption under state law has not expired: In re Johnson, 29 B.R. 104 (Bkrtcy.S.D.Fla.1983); In re Chambers, 27 B.R. 687 (Bkrtcy.S.D.Fla.1983); In re Taylor, 21 B.R. 179 (Bkrtcy.W.D.Mo. 1982); In re Thompson, 17 B.R. 748 (Bkrtcy.W.D.Mich.1982). 32 B.R. at 790. To the fourth group we add the following recent opinions by the Fifth and Seventh Circuits: Grubbs v. Houston First American Savings Association, 730 F.2d 236 (5th Cir.1984) (en banc) (holding that a debtor may cure a default after acceleration, but expressing no limit on the right); Matter of Clark, 738 F.2d 869 (7th Cir.1984) (holding that a debtor may cure a default after a judgment of foreclosure that does no more than judicially confirm the acceleration Under state law, but expressing no opinion whether the right to cure survives a sale or a judgment of foreclosure in states where the effect of the judgment is different). Most courts agree that section 1322(b)(5) allows the debtor to cure a default when the mortgagee has not yet accelerated the debt, see, e.g., In re Pearson, 10 B.R. at 193; In re Hartford, 7 B.R. 914 (Bankr.D. Me." }, { "docid": "7731492", "title": "", "text": "re Thompson, 17 B.R. 748 (Bkrtcy.W.D.Mich.1982); In re Gooden, 21 B.R. 456 (Bkrtcy.N.D.Ga.1982); In re Ivory, 32 B.R. 788, 10 B.C.D. 1327 (Bkrtcy.D.Or.1983). Id. at 939-40 (footnotes omitted). The courts are, in particular, divided on the issue before this Court: whether there can be deceleration and reinstitution of a mortgage after entry of judgment of foreclosure but before sale. Compare In re re Acevedo, 26 B.R. 994 (E.D.N.Y.1982) (reinstitution and deceleration permitted); In re McSorley, 24 B.R. 795 (Bkrtcy.D.N.J.1982) (same); and In re Taylor, 21 B.R. 179 (Bkrtcy.W.D.Mo.1982) (same); with In re Clark, 32 B.R. 711 (D.C.W.D.Wis.1983) (reinstitution and deceleration not permitted); In re Mattocks, 15 B.R. 379 (Bkrtcy.E.D.N.Y.1981) (same); and In re Maiorino, 15 B.R. 254 (Bkrtcy.D.Conn.1981). The debtors have not made clear whether they seek “modification” of Ninth Ward’s judgment under section 1322(b)(2) or the “curing” of their default and maintenance of mortgage payments under sections 1322(b)(3) and (b)(5). For reasons which are set out below, debtors cannot prevail under any of those subsections. The section 1322(b)(2) argument is the easiest to dismiss. Section 1322(b)(2), unlike sections 1322(b)(3) and (b)(5), does not allow for the curing of a default. Section 1322(b)(2) does permit modification of secured claims, but any plan of modification must, under section 1322(c), provide for payments over a period of no longer than five years. Debtors’ proposed plan does not contemplate repayment of the entire judgment within the period of the plan but, instead, contemplates payment only of mortgage arrearages. Debtors’ plan is thus dependent upon a cure of their default and reinstatement of their mortgage, remedies not available under the terms of section 1322(b)(2). Sections 1322(b)(3) and (b)(5) have been the main focus of most courts in resolving cases involving Chapter 13 debtors. The leading case permitting cure and reinstatement is In re Taddeo, 685 F.2d 24 (2d Cir.1982). The Taddeo court held that the limitation against “modification” of mortgage liens under section 1322(b)(2) did not restrict a debtor’s right to “cure” a mortgage default under section 1322(b)(3) and (b)(5). Id. at 27-28. The Taddeo court explained: When Congress empowered Chapter 13 debtors to" }, { "docid": "1363603", "title": "", "text": "1981). (2) Courts that hold that a debtor may cure a default where the mortgage debt has been accelerated provided that no foreclosure judgment has been entered: Percy Wilson Mortgage & Finance Corp. v. McCurdy, 21 B.R. 535 (Bkrtcy.S.D.Ohio W.D.1982); In re Maiorino, 15 B.R. 254 (Bkrtcy.D.Conn.1981); In re Pearson, 10 B.R. 189 (Bkrtcy.E.D.N.Y.1981). (3) Courts hold that a debtor may cure a default where a state court judgment of foreclosure has been entered provided that no sale has taken place: In re Acevedo, 26 B.R. 994 (D.E.D.N.Y.1982); In re James, 20 B.R. 145, 9 BCD 208 (Bkrtcy.E.D.Mich.1982); In re Brantley, 6 B.R. 178 (Bkrtcy.N.D.Fla.1980). (4) Courts that place no express limitation on the debtor’s right to cure a default after acceleration: In re Taddeo, 685 F.2d 24 (2nd Cir.1982); In re Sapp, 11 B.R. 188 (Bkrtcy.S.D.Ohio E.D.1981); In re Davis, 16 B.R. 473 (D.Kan.1981). Or after a judgment has been entered: In re Young, 22 B.R. 620 (Bkrtcy.N.D.Ill.E.D.1982); In re Breuer, 4 B.R. 499, 6 BCD 136 (Bkrtcy.S.D.N.Y.1980). (5) Courts that hold that a debtor may cure a default where a foreclosure sale has been held provided that the debtor’s right of redemption under state law has not expired: In re Johnson, 29 B.R. 104 (Bkrtcy.S.D.Fla.1983); In re Chambers, 27 B.R. 687 (Bkrtcy.S.D.Fla.1983); In re Taylor, 21 B.R. 179 (Bkrtcy.W.D.Mo.1982); In re Thompson, 17 B.R. 748 (Bkrtcy.W.D.Mich.1982). Most courts agree that the debtor may use § 1322(b)(5) to cure a default where the mortgagee has not yet accelerated his debt. See e.g. In re Pearson, 10 B.R. 189, 193 (Bkrtcy.E.D.N.Y.1981); In re Hartford, 7 B.R. 914 (Bkrtcy.D.Me.1981). This court has considered the question of post default cure in two cases. In In re Stone, 27 B.R. 8 (Bkrtcy.D.Or.1982) the court held that a chapter 13 debtor could cure a default and reinstate the periodic payment provision of a land sale contract where the creditor had declared the debt accelerated prior to the chapter 13 filing. In In re Seidel/In re Girgis, 31 B.R. 262 (Bkrtcy.D.Or.1983), the court held that a debtor could not cure a default by extending the" }, { "docid": "7731491", "title": "", "text": "even after the mortgagee has obtained a judgment on the accelerated mortgage note. In re Taddeo, 685 F.2d 24 (2d Cir.1982); In re Acevedo, 26 B.R. 994 (E.D.N.Y.1982); In re Mueller, 18 B.R. 851 (Bkrtcy.W.D. Ark.1982); In re Young, 22 B.R. 620 (Bkrtcy.N.D.Ill.1982); In re Hubbard, 23 B.R. 671 (Bkrtcy.S.D.Ohio 1982); In re McSorley, 24 B.R. 795 (Bkrtcy.N.J.1982); In re Tuchman, 29 B.R. 39 (Bkrtcy.S.D.N.Y.1983); In re Hardin, 16 B.R. 810 (Bkrtcy.N.D.Tex.1982); In re Taylor, 21 B.R. 179 (Bkrtcy.W.D.Mo.1982); In re Smith, 19 B.R. 592 (Bkrtcy.N.D.Ca.1982); In re McCann, 27 B.R. 678 (Bkrtcy.S.D.Ohio 1982). This seems to be a rapidly growing view and has been adopted by more appellate level courts than have any-of the other views. The fifth view is perhaps the most adventurous of all. It holds that deceleration and reinstitution are available even after the foreclosure sale, as long as the state redemption period has not expired by the time the debtor files his bankruptcy petition. See In re Chambers, 27 B.R. 687 (Bkrtcy.S.D.Fla.1983); In re Kokkinis, 22 B.R. 353 (Bkrtcy.N.D.Ill.1982); In re Thompson, 17 B.R. 748 (Bkrtcy.W.D.Mich.1982); In re Gooden, 21 B.R. 456 (Bkrtcy.N.D.Ga.1982); In re Ivory, 32 B.R. 788, 10 B.C.D. 1327 (Bkrtcy.D.Or.1983). Id. at 939-40 (footnotes omitted). The courts are, in particular, divided on the issue before this Court: whether there can be deceleration and reinstitution of a mortgage after entry of judgment of foreclosure but before sale. Compare In re re Acevedo, 26 B.R. 994 (E.D.N.Y.1982) (reinstitution and deceleration permitted); In re McSorley, 24 B.R. 795 (Bkrtcy.D.N.J.1982) (same); and In re Taylor, 21 B.R. 179 (Bkrtcy.W.D.Mo.1982) (same); with In re Clark, 32 B.R. 711 (D.C.W.D.Wis.1983) (reinstitution and deceleration not permitted); In re Mattocks, 15 B.R. 379 (Bkrtcy.E.D.N.Y.1981) (same); and In re Maiorino, 15 B.R. 254 (Bkrtcy.D.Conn.1981). The debtors have not made clear whether they seek “modification” of Ninth Ward’s judgment under section 1322(b)(2) or the “curing” of their default and maintenance of mortgage payments under sections 1322(b)(3) and (b)(5). For reasons which are set out below, debtors cannot prevail under any of those subsections. The section 1322(b)(2) argument is the easiest to dismiss." }, { "docid": "22851349", "title": "", "text": "allowance for the time-value of money while the claim is being paid. 11 U.S.C. § 1325(a)(5); In re Lum, 1 B.R. 186, 5 B.C.D. 1039, 1 C.B.C.2d 95 (Bkrtcy.E.D.Tenn.1979). Section 1322(b)(2) creates an exception to that rule for a claim secured only by a security interest in the debtor’s principal residence. The plan cannot provide for any less than maintenance of the regular payments. Worse treatment would “modify” the claimant’s rights in violation of § 1322(b)(2). Thus, the plan can provide for curing defaults and maintaining regular payments without modifying the claimant’s rights in violation of § 1322(b)(2). The authority given by § 1322(b)(5) amounts to specific authority for dealing with claims secured only by the debtor’s residence and on which the last payment is due after completion of the plan. Specific authority is not needed for such claims on which the last payment is due during the plan. General authority is found in subsection (b)(3) on curing defaults and in subsection (b)(10), which allows the plan to include any provision not inconsistent with the Bankruptcy Code. Accelerated debts should be considered separately. Subsections (b)(2) and (b)(5) do not precisely define what a plan can do as to claims secured only by the debtor’s residence. Whether a debtor can cure defaults despite acceleration should depend on the debtor’s rights under state law in light of the purposes of chapter 13 and the need for certainty in the home mortgage market. See In re Taddeo, 9 B.R. 299, 7 B.C.D. 422, 4 C.B.C.2d 185 (Bkrtey.E.D.N.Y.1981) aff’d 15 B.R. 273 (U.S.D.C.E.D.N.Y.1981); In re Acevedo, 9 B.R. 852, 4 C.B.C.2d 178 (Bkrtcy.E.D.N.Y.1981); In re Beckman, 9 B.R. 193, 7 B.C.D. 361 (Bkrtcy.N.D.Iowa 1981); In re Soderlund, 7 B.R. 44, 3 C.B.C.2d 255 (Bkrtcy.S.D.Ohio 1980); In re Coleman, 2 B.R. 348, 5 B.C.D. 1300 (Bkrtcy.W.D.Ky.1980); In re Breuer, 1 C.B.C.2d 722 (Bkrtcy.S.D.N.Y.1980). It should not be held that cure is automatically unallowable because the last payment is due during the plan. It is not convincing to say that creditors hesitate to accelerate. In re La Paglia, 8 B.R. 937, 7 B.C.D. 333, 338-339, 3" }, { "docid": "18560341", "title": "", "text": "by Borrower, this Deed of Trust and the obligations secured hereby shall remain in full force and effect as if no acceleration had occurred. According to the terms of the parties’ agreement, to cure and reinstate, the debtors must also pay Deseret Federal’s reasonable attorneys’ fees. Section 1322 (b)(5) allows debtors to cure their failure to perform obligations on long term debt. In re Fontaine, 27 B.R. 614, 10 B.C.D. 204, 8 C.B.C.2d 1293 (Bkrtcy.App.Pan. 9th Cir.1982). However, the case law has not been in agreement as to the limits of debtors’ power to cure a default. Some courts have held that where a mortgage by its terms permits the creditor to accelerate the debt before filing, Section 1322(b)(5) does not apply. This view is predicated upon the principal that since acceleration caused the obligation to become immediately due, the maturity date of the last payment does not extend past the date for the last payment under the plan. Therefore, the entire amount must be paid under the plan. To hold otherwise, would modify the mortgagee’s rights in violation of subsection (b)(2). See, e.g., In re Williams, 11 B.R. 504, 7 B.C.D. 946, 4 B.C.D.2d 1028, (Bkrtcy.S.D.Tex.1981); In re LaPaglia, 8 B.R. 937, 7 B.C.D. 333, 3 C.B.C.2d 717, (Bkrtcy.E.D.N.Y.1981). But the majority of cases have held that the power to “cure” contained in Section 1322(b)(5) includes the power to decelerate the accelerated mortgage debt and reinstate the original mortgage payment schedule. See, e.g., In re Taddeo, 685 F.2d 24 (2nd Cir.1982); In re Acevedo, 26 B.R. 994, 4 C.B.C.2d 178 (Bkrtcy.E.D.N.Y.1982); In re Briggs, 25 B.R. 317 (Bkrtcy.D.N.D.1982); In re Davis, 16 B.R. 473, 5 C.B.C.2d 606 (Bkrtcy.D.Kan.1981). In almost every Chapter 13 ease filed by a homeowner debtor, the mortgage debt has been accelerated. By prohibiting a debtor from curing defaults on accelerated loans, the congressional intent and rehabilitative purpose behind Chapter 13 would be defeated. The curing of defaults under this section is not considered a modification of the mortgage lienholder’s rights. In re Taddeo, 685 F.2d at 27. This Court adopts the majority position and allows" }, { "docid": "22851350", "title": "", "text": "Bankruptcy Code. Accelerated debts should be considered separately. Subsections (b)(2) and (b)(5) do not precisely define what a plan can do as to claims secured only by the debtor’s residence. Whether a debtor can cure defaults despite acceleration should depend on the debtor’s rights under state law in light of the purposes of chapter 13 and the need for certainty in the home mortgage market. See In re Taddeo, 9 B.R. 299, 7 B.C.D. 422, 4 C.B.C.2d 185 (Bkrtey.E.D.N.Y.1981) aff’d 15 B.R. 273 (U.S.D.C.E.D.N.Y.1981); In re Acevedo, 9 B.R. 852, 4 C.B.C.2d 178 (Bkrtcy.E.D.N.Y.1981); In re Beckman, 9 B.R. 193, 7 B.C.D. 361 (Bkrtcy.N.D.Iowa 1981); In re Soderlund, 7 B.R. 44, 3 C.B.C.2d 255 (Bkrtcy.S.D.Ohio 1980); In re Coleman, 2 B.R. 348, 5 B.C.D. 1300 (Bkrtcy.W.D.Ky.1980); In re Breuer, 1 C.B.C.2d 722 (Bkrtcy.S.D.N.Y.1980). It should not be held that cure is automatically unallowable because the last payment is due during the plan. It is not convincing to say that creditors hesitate to accelerate. In re La Paglia, 8 B.R. 937, 7 B.C.D. 333, 338-339, 3 C.B.C.2d 717 (Bkrtcy.E.D.N.Y.1981). That may be true, but the courts should not restrict chapter 13 with an interpretation of the statute that is unnecessary and can be unjust. Subsections 1322(b)(2) and (b)(5) do not contemplate what a plan can provide as to accelerated debts. The court concludes that the debtors can cure defaults and maintain regular payments on the second mortgage note even if the last payment will be due before the last payment under the plan is due. The main point of the special protection of § 1322(b)(2) is to preserve the right to the regular payments as provided in the contract. Does it preserve the right to collect other charges also provided for in the contract that is the basis of the claim? The answer depends somewhat on the hazy relationship between § 506 and § 1322(b)(2). Section 506 determines the extent to which a claim is a “secured claim” for bankruptcy purposes. That depends on the value of the collateral. If the value of the collateral is greater than the amount of" }, { "docid": "10241005", "title": "", "text": "in real property that is the debtor’s principal residence, or of holders of unsecured claims; (3) provide for the curing or waiving of any default; ... (5) notwithstanding paragraph (2) of this subsection, provide for the curing of any default within a reasonable time and maintenance of payments while the case is pending on any unsecured claim or secured claim on which the last payment is due after the date on which the final payment under the plan is due; ... The bankruptcy courts throughout the country are in substantial disagreement over the interpretation to be given this statute. As noted in In re Pearson, 10 B.R. 189, 7 B.C.D. 567 (Bkrtcy.E.D.N.Y.1981), there appears to be unanimity that the right to cure exists until there has been an acceleration of the indebtedness and that it ceases once the property has been sold at foreclosure. Beyond that the cases may be divided into three general groups; (1) those which deny the right to cure an acceleration. See In re La Paglia, 8 B.R. 937 (Bkrtcy.E.D.N.Y.1981) (contractual acceleration); In re Wilson, 11 B.R. 986 (Bkrtcy.S.D.N.Y.1981) (judgment); In re Williams, supra (contractual acceleration); In re Coleman, 5 B.R. 812 (U.S.D.Ct.Ky.1980) (judgment); (2) those which grant the right to cure an acceleration. See In re Taddeo, 9 B.R. 299 (Bkrtcy.E.D.N.Y.1981) aff’d. 15 B.R. 273 (U.S.D.Ct.E.D.N.Y.1981) (judgment); In re Rippe, 14 B.R. 367 (Bkrtcy.S.D.Fla.1981) (contractual acceleration); In re Sapp, 11 B.R. 188 (Bkrtcy.S.D.Ohio 1981) (contractual acceleration); In re Acevedo, 9 B.R. 852 (Bkrtcy.E.D.N.Y.1981) (judgment); In re Beckman, 9 B.R. 193, 7 B.C.D. 361 (Bkrtcy.N.D.Iowa 1981) (contractual acceleration); United Companies Financial Corp. v. Brantley, 6 B.R. 178, 6 B.C.D. 932 (Bkrtcy.N.D.Fla.1980) (judgment); In re Soderlund, 7 B.R. 44 (Bkrtcy.S.D.Ohio 1980) (contractual acceleration); In re Breuer, 4 B.R. 499 (Bkrtcy.S.D.N.Y.1980) (judgment); and (3) a third more limited group which deny the right to cure where a judicial decree has resulted in acceleration but do not reach the question of whether the debt- or may cure defaults in contractual accelerations. In re Pearson, supra; In re Canady, 9 B.R. 428, 7 B.C.D. 749 (Bkrtcy.D.Conn.1981); In re Jenkins, 14" }, { "docid": "13796350", "title": "", "text": "plan is due; (10) include any other appropriate provision not inconsistent with this title. (Emphasis added.) . Sable, A Chapter 13 Debtor’s Right to Cure Default Under Section 1322(b): A Problem of Interpretation, 57 Am.Bankr.L.J. 127, 128 (1983); Comment, Accelerated Mortgages: An Unsolved Problem of Interpretation in Chapter 13, 19 Hous.L.Rcv. 954, 971 (1982). . Three distinct lines of authority have developed. One line of cases holds that once a debt is accelerated, the debtor’s Chapter 13 right to cure the default is extinguished. See, e.g., In re Williams, 11 B.R. 504 (Bkrtcy.S.D.Tex.1981); In re LaPaglia, 8 B.R. 937 (Bkrtcy.E.D.N.Y.1981). Another line of cases has given the debtor the right to cure,pre-petition defaults. See, e.g., In re Taddeo, 685 F.2d 24 (2nd Cir.1982); In re Kokkinis, 22 B.R. 353 (Bkrtcy.N.D.Ill.1982). The third line of cases allows the debtor to cure a default on an accelerated debt unless there has been a judicial decree of foreclosure. See, e.g., In re Pearson, 10 B.R. 189 (Bkrtcy.E.D.N.Y.1981). . However, we should note that the clause, \"on which the Inst payment is due,” can be interpreted, as a matter of preempting federal bankruptcy law, to mean \"on which the last payment before acceleration is due.” See In re Brener, 4 B.R. 499, 501 (Bkrtcy.S.D.N.Y.1980), so holding and permitting reinstatement of a long-term mortgage by the payment under the plan of the arrears, notwithstanding a pre-petition acceleration and foreclosure judgment. See also III in text below (legislative history). . In doing so, the panel found itself in substantial agreement with In re Williams, 11 B.R. 504 (Bkrtcy.S.D.Tex.1981), in which the bankruptcy court reasoned as follows: Although § 1322(b)(3) slates that any default may be cured or waived, it appears to the court that (b)(3) was not intended to apply where (b)(5) (which also provides that any default may be cured) is applicable. Congress provided in (b)(2) that the rights of holders of claims secured by the debtors' principal resi-donee may not be modified by a plan. Congress further provided an exception to (b)(2) in (b)(5): a default may be cured within a reasonable time if" }, { "docid": "18560342", "title": "", "text": "mortgagee’s rights in violation of subsection (b)(2). See, e.g., In re Williams, 11 B.R. 504, 7 B.C.D. 946, 4 B.C.D.2d 1028, (Bkrtcy.S.D.Tex.1981); In re LaPaglia, 8 B.R. 937, 7 B.C.D. 333, 3 C.B.C.2d 717, (Bkrtcy.E.D.N.Y.1981). But the majority of cases have held that the power to “cure” contained in Section 1322(b)(5) includes the power to decelerate the accelerated mortgage debt and reinstate the original mortgage payment schedule. See, e.g., In re Taddeo, 685 F.2d 24 (2nd Cir.1982); In re Acevedo, 26 B.R. 994, 4 C.B.C.2d 178 (Bkrtcy.E.D.N.Y.1982); In re Briggs, 25 B.R. 317 (Bkrtcy.D.N.D.1982); In re Davis, 16 B.R. 473, 5 C.B.C.2d 606 (Bkrtcy.D.Kan.1981). In almost every Chapter 13 ease filed by a homeowner debtor, the mortgage debt has been accelerated. By prohibiting a debtor from curing defaults on accelerated loans, the congressional intent and rehabilitative purpose behind Chapter 13 would be defeated. The curing of defaults under this section is not considered a modification of the mortgage lienholder’s rights. In re Taddeo, 685 F.2d at 27. This Court adopts the majority position and allows the debtors in the present case to cure the default through their Chapter 13 plan, decelerate Deseret Federal’s accelerated second lien, and reinstate the original payment terms. CONCLUSION Section 1322(b)(2) allows the curing of defaults to place parties in the position they would have been in if the defaults had not occurred. Upon the cure, no damages arising out of the breach of the lien agreement can exist. The terms of the parties’ lien agreement provided that the debtors must pay all attorneys’ fees in order to cure and reinstate the agreement. Section 1322(b)(2) requires that the rights of mortgage lienholders be preserved. Therefore, this Court is of the opinion that in order to place the parties in their pre-default condition and to preserve the terms of the parties’ lien agreement, the arrearage claim of Deseret Federal must include its claim for attorneys’ fees and be treated through the debtors’ Chapter 13 plan. Although the foregoing decision renders the debtor’s Chapter 13 plan as previously confirmed unfeasible, the requirements of Section 506(b) and Section 1322(b)(2)" } ]

[ { "docid": "16060923", "title": "", "text": "income, which if applied to the $8,179.50 debt subject to this controversy would pay that debt in full in 32 to 33 months. The fact that the Debtor’s estimat ed expenses of $1,520.00 mathematically exceeds his estimated income of $1,516.66, does not prevent this Court from concluding the Debtor’s “expenses must be less than his income.” As to the Debtor’s motion in regards to Section 523(a)(15)(A) this Court finds that the motion is due to be denied. B. Section 523(A)(15)(B) The Debtor contends that if his former wife is required to pay the subject debt that she will not suffer detrimental consequences that outweigh the benefit to him if the debt is discharged. The Debtor relies on the fact that his former wife has inherited $42,000 from her grandmother and will inherit $31,000 more. The Debtor concludes that his former wife is in a better financial condition than he and that she has the ability to pay the debt. This Court considered the factors that Congress suggested should be considered to balance the equities of this case. This Court found: Neither appears to be in dire financial straights, the Debtor because of his chapter 7 bankruptcy and Ms. Anthony because of her inheritance. Neither leads a luxurious lifestyle and neither seems to have any extraordinary debts. Their post-bankruptcy obligations seem to be similar. The difference will of course be which party is obligated for the mobile home debt. Considering the facts, the Court finds that the Debtor failed in his burden to prove that the benefit to him outweighed the detrimental consequences to Ms. Anthony. While the Debtor’s discharge is a significant benefit, in this case it simply does not outweigh the harm to Ms. Anthony. The statute requires that the benefit “outweigh” the harm. In considering this test in the context of this case, the facts demonstrate that the scales, if not in Ms. Anthony’s favor, are equally balanced. Memorandum Opinion at 440 (footnote omitted). Section 523(a)(15) presumes that a debt is not dischargeable and although the non-debt- or spouse brings this complaint, the burden under Section 523(a)(15) is" } ]

[ { "docid": "10093950", "title": "", "text": "property the debtor retained after his bankruptcy filing; 7. The amount of reasonable and necessary expenses which the debtor must incur for the support of the debtor, the debtor’s dependents and the continuation, preservation and operation of the debtor’s business, if any; 8. The income of debtor’s new spouse as such income should be included in the calculation of the debtor’s disposable income; 9. Any evidence of probable changes in the debtor’s expenses. Smither, 194 B.R. at 108-09; Cleveland, 198 B.R. at 398. A debtor has the ability to pay an obligation, for purposes of § 523(a)(15)(A), if the debtor has sufficient disposable income to pay all or a material part of a debt within a reasonable amount of time. The debtor in the instant case testified that he nets approximately $480.43 for 40 hours of work. He also testified that he consistently works 30 to 60 hours per week. Further, he testified that his expenses include a $75 per week payment for child support, $150 per month payment to the IRS, groceries, utilities, and insurance. The debt- or has no rent payment, no car payment, and no additional credit card debt. Being overly generous with regards to the debtor’s monthly expenses, the court finds that the debtor has well over $1,000 per month in disposable income. (in) Balancing Hardships Even though the debtor in this case has the ability to pay the debt in question, the debtor may still obtain a discharge if he can prove by a preponderance of the evidence that “discharging such debt would result in a benefit to the debtor that outweighs the detrimental consequences to a spouse, former spouse or child of the debt- or....” 11 U.S.C. § 523(a)(15)(B). The court must compare the evidence of the debt- or’s standard of living as opposed to the plaintiffs standard of living to balance the equities in this case. If the debtor’s standard of living will be greater than or approximately equal to the plaintiffs standard of living if the debt is not discharged, then the debt should be considered nondischargeable. If, however, the debtor’s standard" }, { "docid": "14331339", "title": "", "text": "exceptions is further served by the Court finding in Joseph’s favor under § 523(a)(15)(B). Joseph is restarting the rest of his life and discharging the debt provides him a benefit, which under the totality of the evidence, outweighs the detrimental consequences to Janet of his nonpayment. This matter is really at the other end of the spectrum from the situation in Hill where the nondebtor spouse, like the debtor, was insolvent in the equity sense and both were in need of relief under the Bankruptcy Code. At trial, both Joseph and Janet were gainfully employed, earning more than their necessary living expenses, with no other de-pendants. Perhaps from a purely economic approach, if the nondebtor spouse is better off than the debtor, either from comparing their respective balance sheets or income and expense statements, § 523(a)(15)(B) requires the result obtained here — the non-debtor party loses. Joseph’s attorney conceded as much in his closing argument. That result could change in other cases if the evidence showed some horrible noneconomic detriment (to health, liberty, or something else of great material value to the nondebtor party — the statute does not define the terms “benefit to the debtor” or “detrimental consequences” to the nondebtor). In any event, on this record, Janet loses in this matter under § 523(a)(15)(B). V. CONCLUSION For the foregoing reasons, the Court holds that the debt is dischargeable under § 523(a)(15)(B). This Opinion constitutes the Court’s findings of fact and conclusions of law in accordance with Federal Rule of Bankruptcy Procedure 7052. A separate order shall be entered pursuant to Federal Rule of Bankruptcy Procedure 9021. ORDER For the reasons set forth in a Memorandum Opinion dated the 23rd day of January, 1996, the Court holds that the debt owed by Joseph L. Taylor to Janet L. Taylor is dis-chargeable under 11 U.S.C. § 523(a)(15)(B). . Bankruptcy Rule 4005 speaks to the burden when a creditor objects to a debtor’s discharge and provides that ”[a]t the trial on a complaint objecting to a discharge, the plaintiff has the burden of proving the objection.” FED. R.BANKR.P. 4005. . Florez" }, { "docid": "16060919", "title": "", "text": "detrimental consequences to a non-debtor spouse, the debt captured by section 523 should be discharged. This Court found that the debt subject to this matter was not dischargeable. The Court concluded not only that the Debtor had the ability to pay the debt but also concluded that the benefit to the Debtor of a discharge of the debt did not outweigh the harm that would be imposed on the Debtor’s former wife if the debt was not discharged. The Debtor contends the Court’s conclusions are inconsistent with the Court’s findings of fact. The Debt- or specifically contends first that the conclusion that the Debtor’s expenses are less than his income is contradicted by the facts, facts that demonstrate that the Debtor does not have the ability to pay the debt, and second that his former wife, because she will receive a distribution from her grandmother’s estate, will not suffer detrimental consequences that outweigh the benefit to the Debtor if the debt is discharged. Section 523(a)(15)(A) The evidence before the Court, as presented by the Debtor in his bankruptcy petition, was that the Debtor’s total monthly expenses are $1,520.00 and that his net monthly income is $1,516.66. Subtracting expenses from income yields a negative expense amount of $3.34. In response to this evidence, the Debtor’s motion criticizes the Court’s opinion which reads “[the Debtor’s] expenses must be less than his income.” The motion suggests that the conclusion is contrary to the above facts. While this Court could not, and of course did not, ignore the mathematical reality that the $1,520.00 representing expenses is greater than the $1,516.66 representing income, the Court said: Although Mr. Anthony estimates his monthly expenses as $1,520.00, and testified that since the divorce his income has declined due to the loss of a second job, his expenses must be less than his income. He lives with his mother. He does not have a current car payment. He does not have any dependents other than his son, whose child support has already been deducted from the Debtor’s gross income. He will soon pay all he owes in delinquent" }, { "docid": "10093951", "title": "", "text": "insurance. The debt- or has no rent payment, no car payment, and no additional credit card debt. Being overly generous with regards to the debtor’s monthly expenses, the court finds that the debtor has well over $1,000 per month in disposable income. (in) Balancing Hardships Even though the debtor in this case has the ability to pay the debt in question, the debtor may still obtain a discharge if he can prove by a preponderance of the evidence that “discharging such debt would result in a benefit to the debtor that outweighs the detrimental consequences to a spouse, former spouse or child of the debt- or....” 11 U.S.C. § 523(a)(15)(B). The court must compare the evidence of the debt- or’s standard of living as opposed to the plaintiffs standard of living to balance the equities in this case. If the debtor’s standard of living will be greater than or approximately equal to the plaintiffs standard of living if the debt is not discharged, then the debt should be considered nondischargeable. If, however, the debtor’s standard of living will fall materially below that of the plaintiff’s if the debt is not discharged, then the debt should be discharged. In other words, if the court finds that the debtor will “suffer more” by not receiving a discharge that the plaintiff would suffer if the debt were discharged, then the court will discharge the debt. See Smither, 194 B.R. at 110-11. To properly balance the equities, the court should consider, at a minimum, the following factors: 1. The amount of debt involved, including all payment terms; 2. The current income of the debtor, objecting creditor and their respective spouses; 3. The current expenses of the debtor, objecting creditor and their respective spouses; 4. The current assets, including exempt assets of the debtor, objecting creditor and their respective spouses; 5. The current liabilities, excluding those discharged by the debtor’s bankruptcy, of the debt, objecting creditor and their respective spouses; 6. The health, job skills, training, age, and education of the debtor, objecting creditor and their respective spouses; 7. The dependents of the debtor, objecting" }, { "docid": "1503035", "title": "", "text": "submitted expenses were $3,126 per month, but by reducing those expenses which Debtor failed to prove were reasonable or necessary and eliminating the life insurance expense which is dischargeable, Debtor easily has enough disposable income to pay the Obligations. Additionally, once Niewdach sells her home, Debtor will be relieved of the obligation to pay the second mortgage on that home (provided there is no deficiency), and accordingly, should have more than $800 in additional income at that time. Moreover, Debtor is likely to continue to make more money in future years; HSU informed Debtor that a $9,085 salary increase was planned for fiscal years 2006 and 2007 if funds were available. For these reasons, the Court finds that Debtor failed to prove that he does not have the ability to pay the Obligations owed to Niewdach. 2. BenefítIDetriment Test. If the debtor has the ability to pay the obligations at issue, the court must next determine whether the benefit to the debtor outweighs the detriment to the debtor’s spouse, former spouse, or child pursuant to § 523(a)(15)(B) which provides an exception to nondischargeability if: discharging such debt would result in a benefit to the debtor that outweighs the detrimental consequences to a spouse, former spouse, or child of the debtor; In applying the benefit versus detriment analysis, the court must analyze the income and expenses of each party. In re Brown, 302 B.R. 637, 645 (Bankr.N.D.Iowa 2003). In examining the income and expenses of each party, it is clear that Niewdach will suffer the greatest detriment if forced to pay the car and second mortgage obligations. According to her testimony, which the Court found credible, she can pay neither her regular expenses nor the Obligations at this time. Her sister is paying her car note, and she is borrowing money from friends and relatives to pay the second mortgage. Even without paying these debts, her other expenses exceed her income by more than $1,000. She is making minimum payments on at least $12,000 of medical bills, and her cancer was not in remission at the time of Trial. She is" }, { "docid": "18543446", "title": "", "text": "enables the Court to consider postpetition events as well as reasonably projectable future events known at the time of trial. The Court concludes the Debtor has met his burden of establishing the $8,542.68 equalizing debt should be discharged. Specifically, the Court finds the Debtor’s modest budget just barely enables him to pay $75 monthly toward the equalizing debt. He should not be burdened with this debt where payment still leaves the Plaintiff with negative excess disposable in come and hopelessly in debt. The Plaintiff is better off filing bankruptcy to deal with her debt. This Memorandum Decision constitutes findings of fact and conclusions of law pursuant to Federal Rule of Bankruptcy Procedure 7052. The Debtor is directed to file ■with this Court a judgment against the Plaintiff in conformance with this Memorandum Decision within ten days from entry hereof. . Hereinafter, all code and section references refer to 11 U.S.C. §§ 101-1330 unless otherwise specified. . Plaintiff's Exhibit 1. . Plaintiff's Exhibits 2-16 and 2-17. .The Bankruptcy Reform Act of 1994, Pub.L. No. 103-394, 108 Stat. 4106 (codified and amended in various sections of 11 U.S.C.). . The minority view holds that the burden remains squarely on the plaintiff. In re Butler, 186 B.R. 371, 373-74 (Bankr.D.Vt.1995). The middle view holds that the debtor has the burden of showing inability to pay and the nondebtor spouse has the burden of showing the detriment outweighs the benefit. Hesson, 190 B.R. at 239. . Bankruptcy Code § 1325(b)(2) provides in pertinent part: For purposes of this subsection, \"disposable income\" means income which is received by the debtor and which is not reasonably necessary to be expended— (A) for the maintenance or support of the debt- or or a dependent of the debtor; and (B) if the debtor is engaged in business, for the payment of expenditures necessary for the continuation, preservation, and operation of the such business. . At the time this matter was tried, the Court did not have the benefit of these subsequent opinions and was instead guided by the Ninth Circuit's opinion In re Kelly, 841 F.2d 908 (9th" }, { "docid": "16060924", "title": "", "text": "this case. This Court found: Neither appears to be in dire financial straights, the Debtor because of his chapter 7 bankruptcy and Ms. Anthony because of her inheritance. Neither leads a luxurious lifestyle and neither seems to have any extraordinary debts. Their post-bankruptcy obligations seem to be similar. The difference will of course be which party is obligated for the mobile home debt. Considering the facts, the Court finds that the Debtor failed in his burden to prove that the benefit to him outweighed the detrimental consequences to Ms. Anthony. While the Debtor’s discharge is a significant benefit, in this case it simply does not outweigh the harm to Ms. Anthony. The statute requires that the benefit “outweigh” the harm. In considering this test in the context of this case, the facts demonstrate that the scales, if not in Ms. Anthony’s favor, are equally balanced. Memorandum Opinion at 440 (footnote omitted). Section 523(a)(15) presumes that a debt is not dischargeable and although the non-debt- or spouse brings this complaint, the burden under Section 523(a)(15) is on the Debtor to overcome that presumption and prove that either subsections (A) or (B) apply and that the debt is dischargeable. It is this burden the Debtor faded to carry. The Debtor has already received a significant benefit from the filing of his chapter 7 bankruptcy ease. He has discharged all of his unsecured debt. His fresh start, although diminished some by this Court’s decision on the dischargeability of the subject debt, is nonetheless something he can build on. Under Section 523(a)(15)(B) the “benefit” to a debtor that this Court must consider in comparing that benefit to the harm to a non-debtor spouse, is the benefit to a debtor of the discharge of the subject debt, not a debtor’s discharge of all other debts. The Debtor’s net monthly income exceeds Ms. Anthony’s income by almost $500.00 per month. For the 32 to 33 month period over which the Debtor could pay the $8,179.50 debt in this case, that amount would total over $16,000.00. While Ms. An thony has inherited a sizeable sum from her" }, { "docid": "22924429", "title": "", "text": "benefit of the discharge to the Debtor is significant. He obtains a fresh start, unburdened by debts which he has no ability to pay. He receives relief from his financial plight as he undertakes marital responsibilities with his new family. The detrimental consequences to the Plaintiff are also significant. She finds herself burdened with debts she now is alone legally obligated to pay. She may be sued on those debts. If the Debtor does not contribute toward payment of those debts, she, too, may have to file a Chapter 7. That is indeed a detrimental consequence, but then again, is it so bad? A discharge of debts by both parties strikes the Court as the most sensible solution to the combined problems of the Plaintiff and the Debtor. The Court concludes that under Section 523(a)(15)(B), the benefit of the discharge to the Debtor outweighs the detrimental consequence to the Plaintiff. # # # # sfc In summary, this Court is called upon, under Section 523(a)(15), to decide who must pay certain debts as between two people, neither of whom can afford to do so. The plight the parties find themselves in does not arise from extravagant lifestyles. Both parties work hard for modest earnings and live frugally. The filing of a bankruptcy petition affords a measure of relief to those in a financial downfall. To date one of the parties has sought that relief. Section 523(a)(15) is a limit on that relief unless the facts permit otherwise, as here. Thus, the Court finds, as between the Plaintiff, Kathleen M. Hill, and the Debtor, Lawrence M. Hill, the obligation of the Debt- or to assume and hold the Plaintiff harmless from the debts of Lawrence Friedman P.C., the Bank of New York credit card, Trans-america Financial Services and First Federal Savings is dischargeable. Further, that the obligation of the Debtor, Lawrence M. Hill, to reimburse the Plaintiff, Kathleen M. Hill, for the attorney fees of J.F. Heckinger, P.C. is nondischargeable pursuant to Section 523(a)(5). . The Debtor plays in a band and the debts relating to those expenses remained with him." }, { "docid": "13975666", "title": "", "text": "the 1994 income information is the best available. The standard set forth in § 528(a)(15) subparagraph (B) that discharging the debt would result in a benefit to the debtor that outweighs the detrimental consequences to the spouse appears to direct the Court to find dischargeability where the assets or needs of the former spouse are such that the addition to his/her income (or reduction of expenses) resulting from the payment in question would be of significantly less benefit to him/her than the detriment to the debtor. Apparently this language is intended to avoid imposing non-dischargeability on a debtor/spouse where the non-debtor spouse has independent means, wealth, or a lack of need of the particular payment involved or, arguably, where the non-debtor spouse has no assets that can be reached by creditors. The expenses of the plaintiff demonstrate a living standard higher than that of the defendant in these proceedings. For instance, the upkeep on the child’s Tennessee walking horse of $350.00 per month appears to be an item which is not entirely necessary to the proper rearing of the child in light of the financial situation of the parties. However, these expenses do not indicate a lifestyle wholly out of keeping with her income and past lifestyle and the disparity between her lifestyle and the debtor’s lifestyle is not great. The payment of the $330.51 per month, will, no doubt, make for a very tight budget for the defendant. Concurrently, if the plaintiff is required to assume this indebtedness and pay it herself, it appears that it will be equally burdensome for her. In reviewing all of the facts in the matter, the Court cannot conclude that discharging such debt would result in a benefit to the debtor that outweighs the detrimental consequences to his former spouse. Therefore, the Court concludes that the indebtedness to TransFi-naneial Bank, secured by the Jeep vehicle is non-dischargeable. A separate Judgment will be entered herein." }, { "docid": "16060918", "title": "", "text": "ORDER DENYING DEBTOR’S MOTION TO ALTER OR AMEND JUDGEMENT BENJAMIN COHEN, Bankruptcy Judge. This matter is before the Court on a Motion to Alter or Amend Judgement filed by the Defendant-Debtor. The order subject to the motion followed a trial on a complaint to determine the dischargeability of a debt under 11 U.S.C. § 523(a)(15). The order was entered on September 29, 1995 along with a memorandum opinion finding that a debt of the Debtor to his former wife was not dis-chargeable. The motion requesting the Court to alter its judgment was filed on October 10, 1995, the 11th day following the entry of this Court’s order; however, the motion was timely filed due to the Court’s observance of Columbus Day on October 9, 1995. A debt may be discharged under Section 523(a)(15) if either of two conditions exist. If under Section 523(a)(15)(A) a debt- or does not have , the ability to pay a certain debt or if under 523(a)(15)(B) the benefit to a debtor from a discharge of a that debt outweighs the detrimental consequences to a non-debtor spouse, the debt captured by section 523 should be discharged. This Court found that the debt subject to this matter was not dischargeable. The Court concluded not only that the Debtor had the ability to pay the debt but also concluded that the benefit to the Debtor of a discharge of the debt did not outweigh the harm that would be imposed on the Debtor’s former wife if the debt was not discharged. The Debtor contends the Court’s conclusions are inconsistent with the Court’s findings of fact. The Debt- or specifically contends first that the conclusion that the Debtor’s expenses are less than his income is contradicted by the facts, facts that demonstrate that the Debtor does not have the ability to pay the debt, and second that his former wife, because she will receive a distribution from her grandmother’s estate, will not suffer detrimental consequences that outweigh the benefit to the Debtor if the debt is discharged. Section 523(a)(15)(A) The evidence before the Court, as presented by the Debtor" }, { "docid": "14959695", "title": "", "text": "divorce-related debt owed her ex-spouse from disposable income. Even without considering Kelly’s income, Mrs. Dunn has excess monthly disposable income of $632 which is enough to satisfy her court-ordered obligation of $195 each month on the Credit Union loan. This result can be achieved without depriving Mrs. Dunn of adequate food, clothing shelter and other necessities. Having thus failed to satisfy the test under § 523(a)(15)(A), we next turn our attention to § 523(a)(15)(B) to see if the debt under the state property settlement agreement and divorce decree is dischargeable under the so called “balancing detriments” test. B. Balancing of Detriments Test. Mrs. Dunn may still be able to shed her divorce-related obligation if she can prove by a preponderance of the evidence that the benefit of a discharge to her outweighs the detriment that will be suffered by her ex-husband. 11 U.S.C. § 523(a)(15)(B). In the Patterson case, the Sixth Circuit voiced approval of an eleven-part test meant to examine the “totality of the circumstances” in these type of cases which was adopted in In re Smither, 194 B.R. 102, 111 (Bankr.W.D.Ky.1996). See In re Patterson, 1997 WL 745501, at 3. The Smither court reviewed the financial status of both the debtor and the former spouse in order to ascertain the actual benefit the debtor would derive from a possible discharge of the debt against any hardship the former spouse and/or children would suffer as the result of the discharge. If, after applying the eleven Smither factors, the debtor’s standard of living would be greater than or approximately equal to the ex-spouse’s/creditor’s if the debt is not discharged, then the debt should be nondischargeable under § 523(a)(15)(B). However, if the debtor’s standard of living would fall materially below the creditor’s standard of living if the debt is not discharged, then the debt should be discharged. See In re Patterson, 1997 WL 745501, at 3 (quoting In re Smither, 194 B.R. 102, 111 (Bankr.W.D.Ky.1996) (quoting In re Owens, 191 B.R. 669, 674-75 (Bankr.E.D.Ky.1996))); see also Crosswhite, 148 F.3d 879, 888 n. 16 (the court supplies an excellent synopsis of the" }, { "docid": "8063909", "title": "", "text": "399 n. 6 (Bankr.N.D.Ga.1996); Morris v. Morris (In re Morris), 197 B.R. 236, 243 (Bankr.N.D.W.Va.1996). Thus, the court determines “what funds are available to the debtor to pay the obligation after deducting ‘reasonably necessary’ expenses.” In re Dressier, 194 B.R. at 304 (citing In re Cardillo, 170 B.R. 490, 491 (Bankr.D.N.H.1994)); 1 Lundin, Chapter 13 Bankruptcy § 5.31 (1st ed. 1993). Section 523(a)(15)(B)’s directive that, if the debtor has the ability to pay, the debt will escape discharge only if “discharging such debt would result in a benefit to the debtor that outweighs the detrimental consequences to a spouse, former spouse or child of the debtor ...” is, to be charitable to its drafters, imprecise. In Dressier, I concluded that to demonstrate the character of detrimental consequence necessary to satisfy § 523(a)(15)(B), the plaintiff must show more than “an affordable monetary loss.... ” 194 B.R. at 305. Cases decided both before and after Dressier have considered whether myriad consequences demonstrate detrimental consequences sufficient to outweigh the benefit to be obtained by the debtor from discharge, with mixed results. See, e.g., Taylor v. Taylor, 199 B.R. 37, 41-42 (N.D.Ill.1996) (al though debtor had ability to pay $60,000 debt to former spouse, debt found dischargeable where former spouse’s disposable income exceeded $750,000 and detriment to her was “psychological more than anything else”); Jenkins v. Jenkins (In re Jenkins), 202 B.R. 102, 106 (Bankr.C.D.Ill.1996) (although debt- or had ability to pay, debt held dischargeable where finding of nondischargeability would produce no benefit for former spouse, given her “oppressive” financial affairs); In re Cleveland, 198 B.R. at 400-01 (where discharge of debts to former spouse would provide debtor with “surplus funds,” but would probably force non-debtor former spouse into bankruptcy, debts held nondischargeable). b. Burden of Proof. Dressier determined that § 523(a)(15) plaintiffs bear the burden of proof on all of the discharge exception’s elements. My analysis there relied heavily on Judge Conrad’s reasoning in In re Butler, 186 B.R. 371 (Bankr.D.Vt.1995). Noting that the burden of proof issue was generating considerable confusion in the courts, I concluded that a variety of sensible reasons" }, { "docid": "715844", "title": "", "text": "parties and provides its decision below. JURISDICTION The Court has jurisdiction of this matter pursuant to 28 U.S.C. §§ 151, 157, and 1334 (2005) and Local Rule 81-9.01(B) of the United States District Court for the Eastern District of Missouri. This matter is a core proceeding pursuant to 28 U.S.C. § 157(b)(2)(I) (2005). Venue is proper in this District under 28 U.S.C. § 1409(a) (2005). CONCLUSIONS OF LAW Under Section 523(a)(15), a discharge under Chapter 7 does not discharge a debtor from any debt: (15) not of the kind described in paragraph (5) that is incurred by the debtor in the course of a divorce or separation or in connection with a separation agreement, divorce decree or other order of a court of record, a determination made in accordance with State or territorial law by a governmental unit unless— (A) the debtor does not have the ability to pay such debt from income or property of the debtor not reasonably necessary to be expended for the maintenance or support of the debtor or a dependent of the debtor and, if the debtor is engaged in a business, for the payment of expenditures necessary for the continuation, preservation, and operation of such business; or (B) discharging such debt would result in a benefit to the debtor that outweighs the detrimental consequences to a spouse, former spouse, or child of the debtor. 11 U.S.C. § 523(a)(15)(A)-(B) (2005). “Section 523(a)(15) excepts from discharge those debts arising out of marital dissolution proceedings that ... [involve] property settlement awards.” In re Moeder, 220 B.R. at 54. A rebuttable presumption of nondischargeability arises if the debts are incurred as a portion of a property settlement award. Brown v. Brown (In re Brown), 302 B.R. 637, 643 (Bankr.N.D.Iowa 2003). A debtor may rebut this presumption of nondischargeability upon showing, by a preponderance of the evidence, that either she cannot pay these debts or a discharge of her debts would create a benefit to her that outweighs the detriment to her former spouse. Kirchner v. Kirchner (In re Kirchner), 206 B.R. 965, 970 (Bankr.W.D.Mo.1997). Courts compare the relative" }, { "docid": "18103830", "title": "", "text": "left to wonder why. Even if he is not, we are not willing to accept at face value debtor’s assertion that her monthly living expenses total $1,905.12 when another adult, to whom debtor is not related, is living with her for free. Now that she is in bankruptcy, debtor’s legally binding obligation to her former spouse should take priority over her munificence to her live-in boyfriend. We can think of no good reason why plaintiff should have to subsidize any arrangement debtor has with her boyfriend. At the very least, we will “discount” debtor’s monthly expenses by an amount that makes it possible for her to pay $185 per month on the mortgage against the house which plaintiff owns and in which he presently resides. Debtor cannot have it both ways. That is to say, she cannot get out from under the debt owed to plaintiff while at the same time allowing her boyfriend to live with her without contributing something towards household expenses. It would be unconscionable and an affront to what is meet and just were we to conclude otherwise. Finally, we conclude that the exception to the general rule set forth in § 523(a)(5) which is found at § 523(a)(15)(B) also does not apply to this case. The benefit debtor would enjoy does not outweigh the detriment plaintiff would suffer if the debt in question were discharged. To the contrary, the detriment plaintiff would suffer far outweighs the benefit debtor would enjoy. We have determined that debtor is able to make payments of $185 per month towards the mortgage against the property owned by plaintiff and in which he now resides. If the debt were discharged, debtor would be relieved of this obligation and would have that much more disposable income. The detriment plaintiff would suffer, by contrast, would considerably outweigh this modest benefit to debtor. It is doubtful that plaintiff could afford for very long to continue making monthly payments of $185 towards the property he owns even though his brother fives with him and helps out with the bills. Plaintiff would have only $510 per" }, { "docid": "14333447", "title": "", "text": "stated that the disposable income test analyzes whether the debtor’s budgeted expenses are reasonably necessary. In Phillips, the Court found that the debtor proved by a preponderance of the evidence that he was unable to pay the debt pursuant to § 523(a)(15)(A). Id. at 369. The Court in Phillips then turned to § 523(a)(15)(B). The Court found that the benefit of the discharge to the debtor outweighed any detriment suffered by the nondebtor spouse. The Court noted that the nondebtor spouse testified that she had a secure job with steady income, lived in a large condominium and drove a new sports car. Id. The former wife in Phillips claimed her detriment was she could not afford to attend college. Also, she had to sell the marital home and was forced to work twelve-hour days. Id. G. In Carroll, the Court found that the debtor’s financial condition allowed him to make the payments without jeopardizing his ability to provide for himself or his dependents. Carroll at 200-01. After paying his expenses, the debtor had disposable income of over $400.00 per month. Id. at 201. The Court noted that even if the debtor had the ability to pay the debt, the debt could still be dischargeable if discharging the debt would result in a benefit to the debtor which outweighed the detriment to the nondebtor spouse. Id. The Court noted that it must review the totality of the circumstances when making such determination. Id. The Court found that the benefit of the discharge did not outweigh the detrimental consequences to the nondebtor spouse. Id. H.In the instant case, Mrs. McMurrough has shown that the debt was incurred in connection with a divorce. Thus, the rebut-table presumption that the debt is nondis-chargeable has been established. I. The Debtor must establish that he does not have the ability to pay the debt. The Debtor is now receiving unemployment in the amount of $928.00 per month. This Court may, however, consider the income that the Debtor is capable of producing. Florio v. Florio (In re Florio), 187 B.R. 654, 657 (Bankr.W.D.Mo.1995). J. The Debtor testified" }, { "docid": "22924425", "title": "", "text": "ability to pay. Plaintiffs counsel attempted to prove the Debtor could have the ability to pay. The Plaintiff argues that the Debtor’s expenses pertain to a family of four, of which he has no obligation to support the two children; that if the Debtor’s wife took a part-time waitress job, she could supplement their income sufficiently to pay the debt; and that if the Debtor did not have the ability to pay, he should not have reaffirmed other debts. Plaintiffs arguments are not totally without merit. The Court, however, is reluctant to impose lifestyle changes on the Debtor, especially when the Debtor is not attempting to maintain a luxurious lifestyle. Although the Debtor’s expenses are slightly increased because of the two children, the Plaintiff ignores the wife’s contribution of $400.00 per month from received child support payments. The reaffirmed debt of $2,325.00 can hardly be considered an attempt to maintain an extravagant lifestyle. True, a portion goes toward a piece of band equipment, but in the “big picture” analysis of the case, the $75.00 monthly payment would have no bearing on the outcome. Here, the Debtor has maintained a steady job for seven years, has attempted to pay all his obligations, but has incurred more debt than he can manage. One of the goals of bankruptcy is to provide the honest, but unfortunate debtor with a fresh start. Local Loan Co. v. Hunt, 292 U.S. 234, 54 S.Ct. 695, 78 L.Ed. 1230 (1934). Thus, the Court finds the Debtor has met his burden of proving that he does not have the ability to pay the debt in question. Although it is unnecessary to proceed further, the Court finds that a review of Section 523(a)(15)(B) will be of use to future litigants. 2. Section 523(a)(15)(B) Under Section 523(a)(15)(B) a debtor must show the benefit of a discharge outweighs the detrimental consequences to the nondebtor spouse, former spouse or child of the debtor. See 11 U.S.C. § 523(a)(15)(B). For example, if a nondebtor spouse would suffer little detriment from the debtor’s nonpayment of an obligation required to be paid under a hold" }, { "docid": "12470496", "title": "", "text": "divorce decree or other order of a court of record, a determination made in accordance with State or territorial law by a governmental unit unless— (A) the debtor does not have the ability to pay such debt from income or property of the debtor not reasonably necessary to be expended for the maintenance or support of the’ debtor or a dependent of the debtor and, if the debtor is engaged in a business, for the payment of expenditures necessary for the continuation, preservation, and operation of such business; or (B) discharging such debt would result in a benefit to the debtor that outweighs the detrimental consequences to a spouse, former spouse, or child of the debtor. 11 U.S.C. § 523(a)(15). This section is intended to cover divorce-related debts such as those in property settlement agreements that “should not justifiably be discharged.” King, Collier on Bankruptcy ¶ 523.21. The legislative history of this section reflects the same policy interest in protecting ex-spouses and children that is found in § 523(a)(5) by treating property settlement debts as nondis-chargeable. Many courts (including the bankruptcy and district courts reviewing Ms. Ginter’s adversary proceeding in Mr. Crosswhite’s bankruptcy) have criticized this provision for its lack of clarity. However, we believe that a careful parsing of the provision eliminates some of the confusion. Section 523 provides the general scheme for establishing exceptions from discharge, and two subsections provide specific protection to the debtor’s children, spouse and former spouse. Subsection (5) establishes as nondischargeable the debtor’s obligations of alimony, maintenance and support; subsection (15) sets forth as nondischargeable any marital debt other than alimony, maintenance or support that is incurred in connection with a divorce or separation. Subsection (15) then offers two exceptions to that rule of nondisehargeability under sub-subsections, or subparts, (A) and (B). Therefore, a subsection (15) property settlement debt is not dischargeable unless, under (A), the debtor does not have the ability to pay the debt from disposable income, or, under (B), the benefit to the debtor in discharging the debt outweighs the detrimental consequences to the debtor’s former spouse or child. See 11" }, { "docid": "715845", "title": "", "text": "of the debtor and, if the debtor is engaged in a business, for the payment of expenditures necessary for the continuation, preservation, and operation of such business; or (B) discharging such debt would result in a benefit to the debtor that outweighs the detrimental consequences to a spouse, former spouse, or child of the debtor. 11 U.S.C. § 523(a)(15)(A)-(B) (2005). “Section 523(a)(15) excepts from discharge those debts arising out of marital dissolution proceedings that ... [involve] property settlement awards.” In re Moeder, 220 B.R. at 54. A rebuttable presumption of nondischargeability arises if the debts are incurred as a portion of a property settlement award. Brown v. Brown (In re Brown), 302 B.R. 637, 643 (Bankr.N.D.Iowa 2003). A debtor may rebut this presumption of nondischargeability upon showing, by a preponderance of the evidence, that either she cannot pay these debts or a discharge of her debts would create a benefit to her that outweighs the detriment to her former spouse. Kirchner v. Kirchner (In re Kirchner), 206 B.R. 965, 970 (Bankr.W.D.Mo.1997). Courts compare the relative living standards of the parties when balancing the benefit of discharge versus the detriment. Mesenbrink v. Eiklenborg (In re Eiklenborg), 286 B.R. 718, 723 (Bankr.N.D.Iowa 2002). Here, Plaintiff was required to repay the Consolidation Note as part of the property settlement award, so Plaintiff must rebut the presumption that she cannot pay the Consolidation Note. Plaintiffs schedules indicate that she has a monthly deficiency of $84.05; thus, Plaintiff sustained her burden of proof that she is unable to repay the Consolidation Note under Section 523(a)(15)(A). Furthermore, a comparison of the relative living standards of Plaintiff and Defendant indicates that Defendant has excess income of $641.00 when compared to Plaintiffs $84.05 deficiency. Defendant also holds rental property worth at least $850,000.00, and Defendant lives with his girlfriend who earns in excess of $50,000.00. Under the facts of this case, a discharge of Plaintiffs obligation under the dissolution order outweighs the detrimental consequences to Defendant. Consequently, Plaintiff is also entitled to discharge her obligation under the dissolution order under Section 523(a)(15)(B). Plaintiff argues that she did not" }, { "docid": "22203243", "title": "", "text": "U.S.C. § 523(a)(8). We find that Ghessman’s analysis of 11 U.S.C. § 523(a)(8) is equally applicable to section 523(a)(15). Accordingly, this Court holds that a Debtor has the ability to pay an obligation, for purposes of 11 U.S.C. § 523(a)(15)(A), if the Debtor has sufficient disposable income to pay all or a material part of a debt within a reasonable amount of time. If the Debtor has the ability to pay only a portion of that indebtedness, then the court may discharge in part and/or equitably modify the obligation in question. This analysis must be applied on a-case by-case basis after a careful review of the particular facts and circumstances surrounding each nondis-chargeability action. The application of this standard in the present case must, however, be deferred until the Court considers whether the debt in question is nondisehargeable under 11 U.S.C. § 523(a)(15)(B). G. 11 U.S.C. § 523(a)(15)(B): Balancing of Hardships Even if a debtor has the ability to pay a property settlement debt for purposes of 11 U.S.C. § 523(a)(15)(A), the Debtor may still obtain a discharge of the obligation if the Debtor can prove, by a preponderance of the evidence, that “discharging such debt would result in a benefit to the Debtor that outweighs the detrimental consequences to a spouse, former spouse or child of the Debt- or.” 11 U.S.C. § 523(a)(15)(B). Unlike 11 U.S.C. § 523(a)(15)(A), there are no similar Bankruptcy Code provisions from which Bankruptcy Courts can seek guidance in applying this test. However, it is clear from the language of the statute that in determining whether a debt is nondis-chargeable under 11 U.S.C. § 523(a)(15)(B), a court must compare the standard of living of the debtor against the standard(s) of living of his or her spouse, former spouse and/or children to determine whether the debtor will “suffer more” by not receiving a discharge of the debts in question than his or her spouse would suffer if the obligations were discharged. See In re Phillips, 187 B.R. 363 (Bkrtcy.M.D.Fla.1995) (“The legislative history of this section essentially requires this Court to make a value judgment in deciding" }, { "docid": "8063910", "title": "", "text": "with mixed results. See, e.g., Taylor v. Taylor, 199 B.R. 37, 41-42 (N.D.Ill.1996) (al though debtor had ability to pay $60,000 debt to former spouse, debt found dischargeable where former spouse’s disposable income exceeded $750,000 and detriment to her was “psychological more than anything else”); Jenkins v. Jenkins (In re Jenkins), 202 B.R. 102, 106 (Bankr.C.D.Ill.1996) (although debt- or had ability to pay, debt held dischargeable where finding of nondischargeability would produce no benefit for former spouse, given her “oppressive” financial affairs); In re Cleveland, 198 B.R. at 400-01 (where discharge of debts to former spouse would provide debtor with “surplus funds,” but would probably force non-debtor former spouse into bankruptcy, debts held nondischargeable). b. Burden of Proof. Dressier determined that § 523(a)(15) plaintiffs bear the burden of proof on all of the discharge exception’s elements. My analysis there relied heavily on Judge Conrad’s reasoning in In re Butler, 186 B.R. 371 (Bankr.D.Vt.1995). Noting that the burden of proof issue was generating considerable confusion in the courts, I concluded that a variety of sensible reasons militates in favor of such a burden of proof allocation. In re Dressier, 194 B.R. at 301-04. I continue to hold that view, but I will not repeat the discussion here. As I noted in Dressier: The statute and the rules do not require [... ] procedural gymnastics. They are wholly unnecessary. Although § ■ 523(a)(15)’s phrasing is not a model of style, Congress did not intend the section to be a complex provision. • If the statute’s substance can be fairly applied with simplicity, the courts should not construct procedural labyrinth around it. A § 523(a)(15) plaintiff has every motivation (and ability) to demonstrate that the debtor has the ability to pay the obligation in question. And the plaintiff has the motivation (and ability) to prove that the detrimental consequences of discharge outweigh the benefits that the debtor would otherwise gain. Thus, I conclude that the § 523(a)(15) plaintiff bears the burden of production and proof on all elements of dischargeability. 194 B.R. at 303-04 (footnote omitted). Thus, to prevail, Monica must show that" } ]

[ { "docid": "12129550", "title": "", "text": "testified under a grant of immunity that after depositing N in bed, appellant asked Perez if he wanted to “spend some time” with N. Perez concluded that appellant was offering her services for “intimate” relations. Perez declined the offer. Appellant then asked for 5 minutes with her. Perez left appellant alone with N in the bedroom. After being in the bedroom alone with N for about 5 minutes, appellant emerged, went into the bathroom, and took a shower. 60. On September 10, 1989, when faced with the allegation of rape, appellant showed his consciousness of guilt when he told Perez that he was planning to arrange for some witness to say that N was not at his apart-The alibi that appellant had set up and introduced at trial fell apart when the alibi witness was clearly impeached. Additionally, evidence was introduced that N had a good reputation for truthfulness, while appellant’s credibility was called into question. ment on the evening of August 80. 61. The majority concludes that “the evidence is not legally sufficient even to justify ... [the Court of Military Review’s] ambiguous finding” that appellant indecently assaulted N “with his penis and/or his hand.” ¶ 41. I submit that N’s complaints of a sore genital area; a burning sensation while urinating; a sore anus and a bloody bowel movement constitute non-ambiguous physical evidence entirely consistent with an indecent assault by appellant “with his penis and/or his hand.” I also agree with Chief Judge Sullivan that “clear and sufficient circumstantial evidence supports the Court of Military Review’s findings of guilty to the lesser-included offense of indecent assault.” ¶46. 62. In summary, I am convinced that the evidence adduced at trial is more than sufficient to support a finding that appellant committed an indecent assault upon N. Two factfinders have so held. I would not disturb their findings. . See 41 MJ 213, 229 n. * (1994). . The last Manual to use the term corpus delicti was Manual for Courts-Martial, U.S. Army, 1949. See ¶ 127a. The majority is right. The concept goes to the question of proof and" } ]

[ { "docid": "13529197", "title": "", "text": "from post-traumatic stress disorder); United States v. Snipes, 18 MJ 172 (CMA 1984)(expert may testify victim’s behavior is typical of abused child). However, the expert may not testify concerning the credibility of the victim or other witnesses, absent a proper foundation under Mil.R.Evid. 405. Just as in Halford, the defense attacked A1C D’s credibility on cross-examination relying on her failure to report and her normal interaction with appellant, to show the inconsistency of the alleged sexual assault. The prosecution, however, explained her actions through the testimony of Dr. Greene, in particular the effect of the abuse by her stepfather and her mother’s refusal to report his conduct. Trial defense counsel did not question Dr. Greene’s expertise or his ability to link his expertise to the specific facts of the case. Dr. Greene was well aware of his role. When the defense tried to open the door by asking him if her responses were “consistent with the possibility that rape occurred. Isn’t that what you were testifying about?,” Dr. Greene responded, “I think that for me to do that [respond as indicated], I would be usurping the responsibility of the jury.” The judge told counsel that Dr. Greene could not testify “about credibility” but he could “testify concerning patterns of consistency between the traits of victims and compare those with patterns in the victim’s story. . . .” When there was a possibility of inadmissible testimony, the judge stepped in to exclude inadmissible evidence. Under the circumstances of this ease we hold that Dr. Greene did not impermissibly bolster the credibility of A1C D. The decision of the United States Air Force Court of Criminal Appeals is affirmed. . As a lesser-included offense of rape. . He pleaded guilty to the lesser-included offense of unlawful entry. . As a lesser-included offense of indecent assault. . Both the Federal Rule and the Military Rule are virtually the same. . This rule has resulted in a substantial amount of commentary, much of it favorable towards the Rule. Roger C. Park, David P. Leonard & Steven H. Goldberg, Evidence Law 150 n. 96 (1998)." }, { "docid": "14951798", "title": "", "text": "to discover that the victim was in the room and that Hawks was having sex with her. Appellant also admitted seeing Pasetti outside the room during the same general time- frame. These facts were corroborated by Airman Gomez who said that after appellant left the room and dressed, he witnessed the encounter related by appellant and that Hawks had not yet left the room. In addition, the victim testified that she awoke to find Airman Hawks raping her. Finally, appellant admitted ejaculating into Airman K.P.’s vagina. At trial the parties stipulated that Captain Christopher N. Heinrichs, M.D., would testify that a rape protocol examination of the victim revealed sperm in the victim’s vagina. Although other inferences could be drawn from this stipulation, one permissible inference was that the appellant was the source of the sperm. Given the abundant evidence consistently corroborating significant details of appellant’s admissions, particularly the evidence corroborating his admission that, after the sexual intercourse, he left the victim alone with Hawks and departed the room naked, we find sufficient circumstantial evidence from which it can properly be inferred that appellant was being truthful when he said he had sexual intercourse with the victim. The fact that there are no witnesses who can provide direct evidence that they saw an unconscious or incapacitated victim being raped does not prevent the government from raising “an inference of the truth of the essential facts admitted” in an accused’s statement. Mil.R.Evid. 304(g)(1). II The prosecution offered Gomez’ testimony regarding Airman Pasetti’s statements under Military Rule of Evidence 801(d)(2)(E) and, in the alternative, under Rule 804(b)(3). Trial defense counsel conceded that the declarant was unavailable but argued that the evidence did not satisfy the requirements of either rule. Appellate defense counsel concur and also cite Bruton v. United States, 391 U.S. 123, 88 S.Ct. 1620, 20 L.Ed.2d 476 (1968); Douglas v. Alabama, 380 U.S. 415, 85 S.Ct. 1074, 13 L.Ed.2d 934 (1965); and United States v. Oliver, 626 F.2d 254 (2nd Cir.1980), as authority that the evidence violated appellant’s Sixth Amendment Right of Confrontation. We find that the evidence was admissible under" }, { "docid": "17002495", "title": "", "text": "Mil.R.Evid. 702; (B) the subject matter of the expert testimony, Mil.R.Evid. 702; (C) the basis for the expert testimony, Mil.R.Evid. 703; (D) the legal relevance of the evidence, Mil.R.Evid. 401 and 402; (E) the reliability of the evidence, United States v. Gipson, 24 MJ 246 (CMA 1987), and Mil.R.Evid. 401; and (F) whether the “probative value” of the testimony outweighs other considerations, Mil.R.Evid. 403. The burden is on the proponent to establish each of these factors. United States v. Houser, 36 MJ 392, 397 (CMA 1993). Appellant asserts error for failure of the prosecution to establish items (A) and (C) above. A decision of the military judge to admit the testimony of an expert witness is reviewed under an abuse-of-discretion standard. Houser, 36 MJ at 397. Mil.R.Evid 702, Manual for Courts-Martial, United States (1995 ed.), provides that a witness may be qualified as an expert by reason of “knowledge, skill, experience, training, or education.” The facts here indicate that it was not an abuse of discretion to allow the expert to testify regarding whether the victim was properly diagnosed as having PTSD with symptoms of RAS. The evidence reflects that the social worker had provided therapy for about 50 rape victims. She also testified that, as a normal course of her therapy with rape victims, she routinely diagnosed and treated cases of PTSD, many of which involved symptoms of RAS. Moreover, Air Force regulations allow social workers to make diagnoses in the course of their work. See para. 38-39, Air Force Regulation 160-12, Medical Services, Professional Policies and Procedures (Aug. 1982); unpub. op. at 5. On these facts, we hold that the military judge did not abuse his discretion by allowing the social worker to give her opinion on whether the victim suffered from PTSD with symptoms of RAS. Appellant failed to object to the qualification of the social worker as an expert. Failure to object renders the admissibility of expert testimony unreviewable, unless plain error exists. Mil.R.Evid. 103(a); United, States v. Suarez, 35 MJ 374, 376 (CMA 1992). Similarly, the social worker testified following Dr. Koziol’s testimony. The social" }, { "docid": "4223393", "title": "", "text": "case and the importance of the requested witness to those issues; whether the witness is desired on the merits or the sentencing portion of the ease; whether the witness’s testimony would be merely cumulative; and the availability of alternatives to the personal appearance of the witness, such as depositions, interrogatories, or previous testimony. United States v. Tangpuz, 5 MJ 426, 429 (CMA 1978); Ruth, supra at 4. Timeliness of the request may also be a consideration when determining whether production of a witness is necessary. RCM 703(c)(2)(C); United States v. Reveles, 41 MJ 388, 394 (1995). B. Appellant’s Requests for Production Appellant made pretrial requests, and submitted pretrial motions, for the production of three witnesses: Mr. Juanito Perez, Special Agent Ernest O. Joy, and Mr. Thomas Richter. The factual and legal considerations with respect to each requested witness are considered separately below. 1. Mr. Juanito Perez In support of the request for Mr. Perez, defense counsel stated that the proposed witness had known the victim’s family from 1987-1991. According to defense counsel, VR claimed that Mr. Perez had raped her when she was 10 years old. Defense counsel asserted that Mr. Perez would testify that the rape complaint was false and that he' would provide an opinion on VR’s character for untruthfulness. Defense counsel had not talked with Mr. Perez and relied upon statements Mr. Perez made to VR’s aunt to support his assertions. The military judge denied the motion to produce Mr. Perez. In a written ruling, the judge held the defense had failed to show that the testimony was relevant and material. The military judge found that there was an insufficient foundation for an opinion as to VR’s truthfulness, that Mr. Perez’s testimony would be inadmissible as extrinsic evidence under Mil.R.Evid. 608(b), and that an alleged rape by Mr. Perez provided no motive for VR to lie about appellant’s relationship with her. The military judge concluded that the testimony of Mr. Perez was not relevant or material. We hold that the military judge did not abuse his discretion in denying the request for Mr. Perez. Testimony from Mr." }, { "docid": "12139069", "title": "", "text": "relevant ... somewhat material,” he concluded it was not “constitutionally required” and was thus prohibited by Rule 412 as it concerned the sexual behavior of a nonconsensual sex offense victim. Consequently, the military judge sustained the objection to the question. Confrontation and Rule The Confrontation Clause of the Sixth Amendment guarantees ah accused the right to cross-examine the witnesses against him in order to test the truth of their testimony. Douglas v. Alabama, 380 U.S. 415, 85 S.Ct. 1074,13 L.Ed.2d 934 (1965). While the right is not absolute, it “must not be lightly denied.” United States v. Whitaker, 34 M.J. 822, 829 (A.F.C.M.R.1992). Although Rule 412 generally precludes admission of evidence about a rape victim’s past sexual behavior, the Rule’s prohibition must yield to “constitutionally required” cross-examination, that is cross-examination which would produce evidence relevant, material, and favorable to the defense. United States v. Williams, 37 M.J. 352 (C.M.A.1993). We conclude the military judge abused his discretion in restricting defense counsel’s cross-examination as it was “constitutionally required.” See id. at 361 (abuse of discretion standard of review). The question of whether JLH lied about appellant being the father of her child was certainly relevant. An out-of-court he is a specific act of misconduct which is probative of a witness’ truthfulness and always relevant to the issue of credibility. United States v. Stavely, 33 M.J. 92 (C.M.A.1991) (applying Mil.R.Evid. 608(b), 609). Moreover, this he directly involved the appellant. The question was material, that is, it was of consequence in determining guilt. A rape victim’s credibility is a crucial issue when the victim is the only witness who can estabhsh force and lack of consent, particularly when there is no physical evidence of force and the victim makes a- delayed complaint. Cf. Williams, 37 M.J. at 360-61. The evidence sought was favorable to the defense. While JLH may have continued to deny telling a he to her roommate if the judge allowed the question, she may have also admitted the statement. Even if she continued to deny making the statement, defense counsel may have proved it by extrinsic evidence. See Mil.R.Evid. 608(c);" }, { "docid": "10927829", "title": "", "text": "large part because most of his experience had been in counseling child victims of incest, rather than adult rape victims. However, the military judge accepted him “as an expert witness on the subject of crisis intervention and rape counseling.” Appellant still contends that Lieutenant Colonel Tuttle was not qualified to testify as an expert under Mil.R.Evid. 702. The defense position is that, although Tuttle may have been extremely well qualified to discuss adult-behavior patterns of people who had been incest victims as a child, he had practically no experience with victims who had been raped as adults, and he had received no training in this field for at least 5 years. Therefore, Tuttle “simply was not qualified to explain why Airman Curtis ‘normalized’ her relationship with appellant after this incident.” After being accepted as an expert, Lieutenant Colonel Tuttle testified that, in his professional opinion, it was not inconsistent behavior for a rape victim not to immediately report the offense. Cf. United States v. Nelson, 25 MJ 110 (CMA 1987). The expert was permitted to testify on the alleged victim’s behavior in striving for “a return to normalcy” and in acting as if the rape had never happened. ( Mil.R.Evid. 702 defines an expert as one whose testimony can “assist the trier of fact to understand the evidence or determine a fact in issue.” United States v. Mustafa, 22 MJ 165 (CMA), cert. denied, 479 U.S. 953, 107 S.Ct. 444, 93 L.Ed.2d 392 (1986). Under this definition admissibility of expert testimony has been broadened. Indeed, anyone who has substantive knowledge in a particular field which exceeds that of the average court member arguably is an expert within that field; and the type of qualification within that field that the witness possesses goes to the weight to be given the testimony and not to its admissibility. The court members had to determine whether the behavior of the victim, Airman Curtis, was consistent with that of an individual who had been recently raped. Certainly Tuttle’s testimony could assist the members in reaching this\" determination. As the Court of Military Review observed, the" }, { "docid": "13529196", "title": "", "text": "consider it, and to engage in all of the emotional processes required to help contain and better manage emotional response to that trauma is certainly an example of minimization. DISCUSSION As this Court stated in United States v. Halford, 50 MJ 402, 404 (1999): Expert testimony in sexual abuse cases may take many forms. The expert may offer evidence that the characteristics demonstrated by the victim lead to a diagnosis of “rape-trauma syndrome ... [which] is probative ... on the issue of consent by the victim.” United States v. Carter, 26 MJ 428, 429 (CMA 1988). Or, the expert may testify that certain behavioral characteristics are consistent with a “rape trauma model.” United States v. Houser, 36 MJ 392, 394-96 (CMA), cert. denied, 510 U.S. 864, 114 S.Ct. 182, 126 L.Ed.2d 141 (1993); see also United States v. Reynolds, 29 MJ 105, 111 (CMA 1989)(“[T]he plain rule of law is that an expert’s testimony concerning ‘rape-trauma syndrome’ ” is admissible); United States v. Lee, 28 MJ 52, 54-55 (CMA 1989)(admitted testimony to show victim suffered from post-traumatic stress disorder); United States v. Snipes, 18 MJ 172 (CMA 1984)(expert may testify victim’s behavior is typical of abused child). However, the expert may not testify concerning the credibility of the victim or other witnesses, absent a proper foundation under Mil.R.Evid. 405. Just as in Halford, the defense attacked A1C D’s credibility on cross-examination relying on her failure to report and her normal interaction with appellant, to show the inconsistency of the alleged sexual assault. The prosecution, however, explained her actions through the testimony of Dr. Greene, in particular the effect of the abuse by her stepfather and her mother’s refusal to report his conduct. Trial defense counsel did not question Dr. Greene’s expertise or his ability to link his expertise to the specific facts of the case. Dr. Greene was well aware of his role. When the defense tried to open the door by asking him if her responses were “consistent with the possibility that rape occurred. Isn’t that what you were testifying about?,” Dr. Greene responded, “I think that for me" }, { "docid": "10494926", "title": "", "text": "and whether the “consent” instruction as to Charge I was improper; III Whether the military judge erred by allowing ultimate issue testimony by a clinical psychologist and the appellant’s wife, and by failing to give appropriate limiting instructions sua sponte; IV Whether the military judge erred by allowing testimony regarding an act of uncharged misconduct over defense objection, and by failing to perform a Mil.R.Evid. 403 balancing test. V Whether the military judge erred by receiving into evidence the appellant’s involuntary pretrial verbal admissions. I Appellate defense counsel, in asserting legal and factual insufficiency of the evidence as to Charges I and III, is attacking the evidence of penetration as to the rape allegation (the defense theory at trial) and is contending that MG consented to the acts of sexual intercourse and the indecent assaults by the appellant. As to the issue of penetration, paragraph 45a(c), Part IV, MCM 1984 provides that penetration, however slight, is sufficient to complete the offense of rape. Notwithstanding MG’s testimony that the appellant penetrated her vagina with his penis on 2 and 6 June and appellant’s admission to the OSI that he rubbed his penis near her vagina on 2 June, counsel contends that the negative medical evidence of trauma to MG’s vaginal area, the fact that her hymen is intact and her youth and inexperience in sexual matters raise a reasonable doubt as to penetration. While this argument has some appeal, it is not supported by the evidence of record. Expert medical testimony at trial established that the lack of trauma to MG’s vaginal area and her intact hymen represented inconclusive evidence as to lack of penetration. Accordingly, the court members were free to evaluate this evidence, observe MG’s demeanor on the witness stand and determine her credibility in light of her relative youth and inexperience. In this regard we note that proof beyond a reasonable doubt does not require evidence that is free from conflict. United States v. Lee, 22 M.J. 767 (A.F.C.M.R.1986); United States v. Steward, 18 M.J. 506 (A.F.C.M.R.1984). The test for legal sufficiency of the evidence is whether, considering" }, { "docid": "4223394", "title": "", "text": "Mr. Perez had raped her when she was 10 years old. Defense counsel asserted that Mr. Perez would testify that the rape complaint was false and that he' would provide an opinion on VR’s character for untruthfulness. Defense counsel had not talked with Mr. Perez and relied upon statements Mr. Perez made to VR’s aunt to support his assertions. The military judge denied the motion to produce Mr. Perez. In a written ruling, the judge held the defense had failed to show that the testimony was relevant and material. The military judge found that there was an insufficient foundation for an opinion as to VR’s truthfulness, that Mr. Perez’s testimony would be inadmissible as extrinsic evidence under Mil.R.Evid. 608(b), and that an alleged rape by Mr. Perez provided no motive for VR to lie about appellant’s relationship with her. The military judge concluded that the testimony of Mr. Perez was not relevant or material. We hold that the military judge did not abuse his discretion in denying the request for Mr. Perez. Testimony from Mr. Perez concerning the rape allegation made against him by VR, as described by defense counsel, would have been irrelevant and would have provided an insufficient basis upon which to attack VR’s credibility. The allegation against Mi*. Perez and his unsurprising denial had no bearing on the validity of VR’s allegations against appellant, and they would not have established a motive on VR’s part to fabricate claims against appellant. See United States v. Velez, 48 MJ 220, 227 (1998). This prior rape allegation falls short of developing a relevant history of false sexual complaints by VR. 2. Special Agent Ernest O. Joy Defense counsel requested the presence of Special Agent Joy, who had interviewed VR after the allegations of appellant’s abuse came to light, to attack her credibility. Defense counsel claimed that Special Agent Joy would testify about VR’s poor recall of time frames, coaching by VR’s mother, prior inconsistent statements by VR, and the fact that VR was punished for her relationship with appellant. Trial counsel countered by introducing an affidavit from Special Agent Joy" }, { "docid": "12139070", "title": "", "text": "of review). The question of whether JLH lied about appellant being the father of her child was certainly relevant. An out-of-court he is a specific act of misconduct which is probative of a witness’ truthfulness and always relevant to the issue of credibility. United States v. Stavely, 33 M.J. 92 (C.M.A.1991) (applying Mil.R.Evid. 608(b), 609). Moreover, this he directly involved the appellant. The question was material, that is, it was of consequence in determining guilt. A rape victim’s credibility is a crucial issue when the victim is the only witness who can estabhsh force and lack of consent, particularly when there is no physical evidence of force and the victim makes a- delayed complaint. Cf. Williams, 37 M.J. at 360-61. The evidence sought was favorable to the defense. While JLH may have continued to deny telling a he to her roommate if the judge allowed the question, she may have also admitted the statement. Even if she continued to deny making the statement, defense counsel may have proved it by extrinsic evidence. See Mil.R.Evid. 608(c); Stavely, 33 M.J. at 94. We find the issues of lack of consent and force in this case are close calls and evidence that JLH had lied about appellant to her roommate “could very well shift the outcome in appellant’s favor.” Williams, 37 M.J. at 360 (citations omitted). See Olden v. Kentucky, 488 U.S. 227, 109 S.Ct. 480, 102 L. Ed.2d 513 (1988). Consequently, the restriction on cross-examination was prejudicial to appellant. Finally, we note the evidence defense counsel sought was not the kind of rape victim character assassination Rule 412 was generally designed to prevent. See MCM, App. 22, Mil.R.Evid. 412 at A22-34 (1984). Defense counsel’s question only brought Rule 412 into play in the most tangential way as the question inferred unmarried JLH must have had sex out of wedlock with someone else. However, the focus of the question was not on sexual behavior, and it did not require JLH to disclose the true father or subject her to an embarrassing and degrading cross-examination. See id. The probative value of the question clearly" }, { "docid": "16377810", "title": "", "text": "PER CURIAM: Appellant was convicted of rape after a second trial for the instant offense. While his principal defense at trial was alibi, he contends on appeal that there was insufficient evidence to corroborate the testimony of prosecutrix as to the corpus delicti, and that the trial court erred in failing to instruct the jury that such evidence was required, although no such instruction was requested by trial counsel. We think there was sufficient circumstantial evidence to corroborate the prosecutrix’ testimony, compensating for the lack of clear medical evidence of forcible penetration. The victim’s escort, held at knifepoint by appellant’s companion, did not see the rape, but heard the prosecutrix scream and later saw her on the ground with her clothing in disarray. Other witnesses at trial testified that her lip was cut and bleeding and that she was upset and crying. The rape was promptly reported to two friends nearby and to the police after the prosecutrix was taken to D.C. General Hospital. These facts add up to enough “circumstances in proof which tend to support the prosecutrix’ story * * * ” Ewing v. United States, 77 U.S.App.D.C. 14, 17, 135 F.2d 633, 636, cert. denied, 318 U.S. 776, 63 S.Ct. 829, 87 L.Ed. 1145 (1943). The presence of corroborative evidence sufficient to send the case to the jury is a question of law for the court, but we have held that the jury should be given appropriate instructional guidance for determining whether the standard of corroborative proof has been met. Borum v. United States, 133 U.S.App.D.C. 147, 409 F.2d 433 (Dec. 21, 1967). Here, however, defense coun sel did not request an instruction on the need for corroboration of the corpus delicti, probably because the defense preferred to accent the issue of identification. Since there was adequate corroboration of the prosecutrix’ testimony, the trial court’s omission of a corroboration instruction on the corpus delicti when none was' requested was not plain error. Rule 52(b) Fed.R.Crim.P.; cf. Franklin v. United States, 117 U.S.App. D.C. 331, 330 F.2d 205 (1964) (corroboration of identification). Appellant’s counsel on appeal contends that" }, { "docid": "12076055", "title": "", "text": "denied, — U.S. -, 112 S.Ct. 1199, 117 L.Ed.2d 439 (1992), Saunders was allowed to testify as to his own sexual experiences with the victim, but any evidence that others had exchanged drugs for sex with the victim was held inadmissible under Fed.R.Evid. 412. Without expressly deciding the correctness of Doe, but noting that it has been criticized, the Fourth Circuit upheld the district court’s ruling. 943 F.2d at 391. . Before Fed.R.Evid. 412 was enacted, United States v. Kasto, 584 F.2d 268 (8th Cir. 1978), cert. denied, 440 U.S. 930, 99 S.Ct. 1267, 59 L.Ed.2d 486 (1979), was the leading case on reputation and opinion evidence of a victim's past sexual behavior in determining consent. In that case, the Eighth Circuit held that evidence of a rape victim's unchastity, whether in the form of testimony concerning her general reputation or direct or cross-examination testimony concerning specific acts with persons other than the defendant, is ordinarily insufficiently probative either of her general credibility as a witness or of her consent to intercourse with the defendant on the particular occasion charged to outweigh its highly prejudicial effect.... 584 F.2d at 271-72 (footnote and citations omitted). Both Fed.R.Evid. 412 and Mil.R.Evid. 412, Manual for Courts-Martial, United States, 1984, embody this rationale. . See also United States v. Pickens, 17 MJ 391, 392 (CMA 1984) (victim’s prior intercourse and flirtations with persons other than accused inadmissible); Wood v. State of Alaska, 957 F.2d 1544 (9th Cir.1992) (fact that victim posed in \"Penthouse” irrelevant to whether she would have sex with accused); Jeffries v. Nix, 912 F.2d 982 (8th Cir.1990) (evidence that woman exchanged sex for money in past not admissible under Iowa rape-shield statute, because there was no evidence she offered to make such exchange here), cert. denied, 499 U.S. 927, 111 S.Ct. 1327, 113 L.Ed.2d 259 (1991); United States v. Duran, 886 F.2d 167, 168 n. 3 (8th Cir.1989) (\"Reputation or opinion evidence of past sexual behavior is totally precluded under Rule 412(a).”); Eastwood v. Dept. of Corrections of State of Oklahoma, 846 F.2d 627, 631 (10th Cir.1988) (“Indications of a victim's" }, { "docid": "12050233", "title": "", "text": "harm, or because she was unable to resist due to mental or physical inability, then the act was done by force and without her consent. (Emphasis added.) This instruction is almost identical to the definition provided in paragraph 45c(l)(b), Part IV. Neither at trial nor during appeal did appellant challenge the adequacy of this instruction. COX, Judge, with whom CRAWFORD, Judge, joins (concurring in part and in the result): In case I misread the majority, I write to clarify my views. Nothing in Article 120(a), Uniform Code of Military Justice, 10 USC § 920(a), suggests or implies that any measure of resistance is required of a rape victim. The offense of rape was defined until October 24, 1992, as follows: Any person subject to this chapter who commits an act of sexual intercourse with a female not his wife, by force and without her consent, is guilty of rape and shall be punished by death or such other punishment as a court-martial may direct. (Emphasis added.) See 40 MJ at 385 n. 1. See also United States v. Watson, 31 MJ 49, 52-53 (CMA 1990). Naturally, as the Manual for Courts-Martial, United States, 1984, points out, a failure to resist where resistance might be expected might give rise to an inference that the prosecutrix actually consented. Para. 45c(1)(b), Part IV. However, that is an entirely different proposition from requiring physical resistance to an assailant before rape occurs. There is also nothing in Article 120(a) which suggests or implies any requirement that the perpetrator use force beyond that “incidental force involved in penetration.” 40 MJ at 386. To be sure, the Manual specifies that, where resistance “would have been futile, ... the force involved in penetration will suffice.” Para. 45c(1)(b). However, the Manual does not claim the reverse — that in other circumstances, more than the force involved in penetration would be required. Even if the Manual could be read as bearing such an implication, it would be inconsistent with the statute and hence a nullity. At the same time, if no more force was employed than that incidentally involved in" }, { "docid": "17002494", "title": "", "text": "recognized in the DSM-III-R at 247-51. The granted issue asks whether the judge erred in allowing the social worker to testify that she agreed the victim suffered from PTSD with symptoms of RAS, and to impermissibly buttress the credibility of the victim. 43 MJ 458. I Appellant asserts that the social worker, who was not licensed or educated as a psychologist, was not qualified to be an expert in the field of rape trauma. Appellant also asserts that the basis of the expert’s opinion was not sufficient because it was based only on statements taken from the victim both in and out of court, and because the social worker “did not have the opportunity to interact with [the victim] — she only observed her testimony.” Final Brief at 2, 4. Admission and consideration of expert testimony is subject to well-settled law. As we have stated: For expert testimony to be admissible, certain factors must be established under the Military Rules of Evidence in Manual for Courts-Martial, United States, 1984: (A) the qualification of the expert, Mil.R.Evid. 702; (B) the subject matter of the expert testimony, Mil.R.Evid. 702; (C) the basis for the expert testimony, Mil.R.Evid. 703; (D) the legal relevance of the evidence, Mil.R.Evid. 401 and 402; (E) the reliability of the evidence, United States v. Gipson, 24 MJ 246 (CMA 1987), and Mil.R.Evid. 401; and (F) whether the “probative value” of the testimony outweighs other considerations, Mil.R.Evid. 403. The burden is on the proponent to establish each of these factors. United States v. Houser, 36 MJ 392, 397 (CMA 1993). Appellant asserts error for failure of the prosecution to establish items (A) and (C) above. A decision of the military judge to admit the testimony of an expert witness is reviewed under an abuse-of-discretion standard. Houser, 36 MJ at 397. Mil.R.Evid 702, Manual for Courts-Martial, United States (1995 ed.), provides that a witness may be qualified as an expert by reason of “knowledge, skill, experience, training, or education.” The facts here indicate that it was not an abuse of discretion to allow the expert to testify regarding whether the" }, { "docid": "12050227", "title": "", "text": "MJ at 179, in order to determine whether the evidence was legally sufficient to prove the element of force. Accord People v. Young, 190 Cal.App.3d 248, 256, 235 Cal.Rptr. 361, 365 (1987)(“Although resistance is no longer the touchstone of the element of force, the reviewing court still looks to the circumstances of the case[.]” (citing People v. Bermudez, supra)). Furthermore, the level of force need only be “more than the incidental force involved in penetration[.]” United States v. Bonano-Torres, supra. In United States v. Watson, 31 MJ 49 (1990), this Court similarly held that proof of a “manifestation of lack of consent” does not require “some positive” action or response by the victim. Id. at 52. Judge Cox, writing for a unanimous Court, rejected the notion that the rape victim has “an independent, affirmative duty” to resist an attacker in order to prove the element of lack of consent. Id. at 52. Moreover, this Court long ago held that lack of consent, as well as the appropriate level or measure of resistance by the victim, is determined by the “totality of the circumstances.” United States v. Henderson, 4 USCMA 268, 273, 15 CMR 268, 273 (1954). Accordingly, the specific question before us is whether the record contains competent evidence that 1) appellant used “more than the incidental force involved in penetration,” and 2) Petty Officer T manifested a lack of consent to sexual intercourse with appellant. Regarding the use of force, the testimony of Petty Officer T is evidence that appellant used actual physical force. Cf. United States v. Williamson, 24 MJ 32, 33 (CMA 1987). She testified that he restrained her by grabbing her arms, lifted her on the kitchen counter, and prevented her from moving. All this occurred while Petty Officer T repeatedly insisted that appellant leave her apartment and said “no” to appellant’s sexual advances and ultimate penile penetration. In terms of consent, or lack thereof, appellant acknowledges that “Petty Officer [T] verbally rejected” appellant’s requests for sexual intercourse. Final Brief at 6. Cf. United States v. Bradley, 28 MJ 197, 201 (CMA 1989). Furthermore, during argument" }, { "docid": "5670459", "title": "", "text": "timing of her manifestations of resistance. Para. 199a, Manual, supra; see also para. 153b (2)(c), Manual, supra. Doctors Randall and Smith also offered testimony first on cross-examination and then on redirect examination that it was possible but not probable that a person such as the alleged victim would falsely “cry ... rape.” Their conclusions indirectly reflected their opinions of the veracity of the prosecutrix in this matter based on their professional contact with her. These opinions were a relevant and proper subject for testimony from these witnesses. See United States v. Fields, 3 M.J. 27, 29 (C.M.A. 1977) (Fletcher, C.J., concurring in the result.) In view of the military judge’s instructions to the members on the proper use of expert testimony and the defense’s opening the door on this matter, no error occurred in the admission of this testimony. Turning to the testimony of Dr. Groth, I disagree with the principal opinion’s assessment of its relevance. Earlier, during the cross-examination of other government witnesses, the defense had established that there was little, if any, evidence of physical trauma on the alleged victim’s body in this case. Standing alone and unexplained, this absence of evidence might create an inference that the alleged victim did not actively resist her assailant and furthermore consented to the act of sexual intercourse. See United States v. Henderson, supra at 273-74, 15 C.M.R. at 273-74. Doctor Groth, based on his experience with sexual assault cases, testified that all rapes are not necessarily accompanied by physical injury. Moreover, accepting the facts as related by the alleged victim, he opined that this was the type of rape, psychologically speaking, which would not generally be accompanied by severe physical injury. His psychological classifications of rape were merely background for the members to understand his expert opinion concerning the meaning of the absence of physical trauma accompanying a rape. The absence of physical trauma and the inference of consent that may be drawn from it are clearly relevant matters in this case. See United States v. Henderson, supra. Dr. Groth also offered his expert opinion on the effect of previous" }, { "docid": "5670460", "title": "", "text": "of physical trauma on the alleged victim’s body in this case. Standing alone and unexplained, this absence of evidence might create an inference that the alleged victim did not actively resist her assailant and furthermore consented to the act of sexual intercourse. See United States v. Henderson, supra at 273-74, 15 C.M.R. at 273-74. Doctor Groth, based on his experience with sexual assault cases, testified that all rapes are not necessarily accompanied by physical injury. Moreover, accepting the facts as related by the alleged victim, he opined that this was the type of rape, psychologically speaking, which would not generally be accompanied by severe physical injury. His psychological classifications of rape were merely background for the members to understand his expert opinion concerning the meaning of the absence of physical trauma accompanying a rape. The absence of physical trauma and the inference of consent that may be drawn from it are clearly relevant matters in this case. See United States v. Henderson, supra. Dr. Groth also offered his expert opinion on the effect of previous incestuous experiences as a child on a victim’s resistance to a subsequent sexual attack. He opined that such persons are less likely to resist their assailant except perhaps by some verbal strategy. See United States v. Salisbury, 7 M.J. 425 (C.M.A.1979). It is clear in the present case that the defense had earlier attempted to attack the alleged victim’s testimony by highlighting the feebleness of her resistance efforts. See para. 199a, Manual, supra. The Government responded to this attack by bolstering its witness’ testimony of non-consent by explaining her lack of more forceful resistance. See McCormick’s Handbook of the Law of Evidence, § 49 (E. Cleary, 2d ed. 1972); see also E. Inwinkelried, P. Giannelli, F. Gilligan, F. Lederer, Criminal Evidence 58-59 (1979). Such evidence was clearly admissible. See para. 153b (2)(c), Manual, supra. In view of the relevance of this testimony and the other evidence of guilt, I do not perceive appellant was unfairly prejudiced by admission of the challenged evidence in this case. . The Government’s expert testimony was not particularly relevant to" }, { "docid": "17002496", "title": "", "text": "victim was properly diagnosed as having PTSD with symptoms of RAS. The evidence reflects that the social worker had provided therapy for about 50 rape victims. She also testified that, as a normal course of her therapy with rape victims, she routinely diagnosed and treated cases of PTSD, many of which involved symptoms of RAS. Moreover, Air Force regulations allow social workers to make diagnoses in the course of their work. See para. 38-39, Air Force Regulation 160-12, Medical Services, Professional Policies and Procedures (Aug. 1982); unpub. op. at 5. On these facts, we hold that the military judge did not abuse his discretion by allowing the social worker to give her opinion on whether the victim suffered from PTSD with symptoms of RAS. Appellant failed to object to the qualification of the social worker as an expert. Failure to object renders the admissibility of expert testimony unreviewable, unless plain error exists. Mil.R.Evid. 103(a); United, States v. Suarez, 35 MJ 374, 376 (CMA 1992). Similarly, the social worker testified following Dr. Koziol’s testimony. The social worker merely agreed with Dr. Koziol’s testimony that the victim suffered from PTSD. Any effect the social worker’s testimony had on the military judge sitting alone was cumulative and, therefore, not reversible error. Accordingly, there was no error in allowing the social worker to provide expert testimony on the diagnosis of the victim’s mental condition. Appellant next asserts error because the social worker based her opinion only on observing the victim testify in court, reading reports of others, and assuming facts as alleged by the victim were true. These bases for an expert’s opinion are allowed. Under Mil.R.Evid. 703, “an expert’s opinion may be based upon personal knowledge, assumed facts, documents supplied by other experts, or even listening to the testimony at trial.” Houser, 36 MJ at 399. That the social worker’s opinion was not based on personal interaction and observation with the victim goes to weight, not admissibility, of the expert’s testimony. See United States v. Youngberg, 43 MJ 379, 387 n. 10 (1995). Thus, there was no abuse of discretion in allowing the" }, { "docid": "23579250", "title": "", "text": "supra (evidence introduced in response to cross-examination of victim); United States v. Carter, supra (evidence introduced during Government’s rebuttal). In a parallel area, child sexual abuse, we have permitted experts to testify about the behavior of child victims of sexual abuse. See, e.g., United States v. Suarez, 35 MJ 374, 376 (CMA 1992) (why a child may render inconsistent statements, recant allegations, fail to report or delay reporting abuse); United States v. Nelson, 25 MJ 110 (CMA 1987), cert. denied, 484 U.S. 1061, 108 S.Ct. 1016, 98 L.Ed.2d 982 (1988). Such testimony assists jurors in disabusing themselves of widely held misconceptions. Likewise, where there is a long-term relationship between the suspect and the victim, he or she is less likely to report the crime or appear upset. See People v. Taylor, 75 N.Y.2d 277, 552 N.Y.S.2d 883, 890, 552 N.E.2d 131, 138 (1990). Thus rape-trauma-syndrome testimony by a properly qualified expert may be ad missible to assist the trier of fact to understand the evidence. While in some cases it may be preferable that the prosecution wait until rebuttal, this Court has never limited rape-trauma-syndrome evidence to rebuttal because this would shift the focus to the question of appropriate rebuttal. C. Basis for Expert Testimony Under Mil.R.Evid. 703, like Fed. R.Evid. 703, an expert’s opinion may be based upon personal knowledge, assumed facts, documents supplied by other experts, or even listening to the testimony at trial. See generally United States v. Johnson, 35 MJ 17, 18 (CMA 1992). Thus, there was no requirement for Dr. Remer to interview the victim before she could testify as to her six-stage model and the symptoms of typical rape survivors. D. Relevance Section IV of the Military Rules of Evidence defines legal and logical relevancy. Mil.R.Evid. 401 provides that the evidence is logically relevant if the evidence has “any tendency to make the existence of any fact that is of consequence to the determination of the action more probable or less probable than it would be without the evidence.” Certain behavioral patterns such as failure to resist or delay in reporting a rape could" }, { "docid": "16390953", "title": "", "text": "of denial. Given her expertise in the area of child sexual abuse, Maj Slicner properly could tes-, tify as to these subjects. Appellant, by raising the issues of late and incomplete reporting and other counterintuitive behavior on cross-examination, put RDP’s credibility directly in issue. The Government, on rebuttal, was entitled to rehabilitate their principal witness by explaining how her behavior did not necessarily undermine her credibility. In this case, appellant attacked RDP’s credibility on the basis of her delayed reporting of the allegations, urging the jury to infer from the delayed reporting that RDP was lying. The Government then called Maj Slic-ner to explain that delayed reporting was a common symptom of child sexual abuse. “If scientific, technical, or other specialized knowledge will assist the trier of fact to understand the evidence or to determine a fact in issue,” Mil.R.Evid. 702 allows an expert witness to testify “thereto in the form of an opinion or otherwise.” This Court has permitted experts to testify under this rule about behavioral characteristics or behavioral patterns of an alleged sexual abuse victim, “especially where that behavior would seem to be counterintuitive.” United States v. Pagel, 45 MJ 64, 68 (1996); see also United States v. Marrie, 43 MJ 35, 41 (1995); United States v. Suarez, 35 MJ 374, 376 (CMA 1992); cf. United States v. Houser, 36 MJ 392,398 (CMA 1993) (permitting expert testimony about rape trauma syndrome to explain victim’s failure to resist and delay in reporting); W. Cox and J. Holt, “Counterintuitive Aspects of Child Sexual Abuse Cases in Military Practice,” Principles and Practice of Military Forensic Psychiatry 347 (1997). In child sexual abuse cases, we have allowed expert testimony about why a child victim may give inconsistent statements, recant allegations, and delay reporting the abuse. Marrie, 43 MJ at 41; Suarez, 35 MJ at 376; see also United States v. Coleman, 41 MJ 46, 47 (CMA 1994); United States v. Nelson, 25 MJ 110, 112-13 (CMA 1987). The rationale for allowing such testimony is that “the victim’s behavior will not necessarily undermine his or her credibility if an expert can explain" } ]

[ { "docid": "22301998", "title": "", "text": "The state does not challenge this conclusion on appeal, but argues instead that Maupin suffered no actual prejudice. The prejudice prong of the Sykes formula has been an elusive concept for the lower federal courts, but several guidelines can be distilled from the Supreme Court’s pronouncements and the case law interpreting those pronouncements. First, it is clear that the prejudice that must be shown must be a result of the alleged constitutional violation and not a result of the trial counsel’s failure to meet state procedural guidelines. See United States v. Frady, 456 U.S. 152, 168, 102 S.Ct. 1584, 1594, 71 L.Ed.2d 816 (1982) (prejudice must result from the errors of which defendant complained). Thus, in this case, we must examine whether Maupin was prejudiced by his conviction based on allegedly insufficient evidence. We need not determine whether any prejudice resulted from the actual procedural default. For example, the fact that the Kentucky Supreme Court refused to consider Maupin’s claim because of his procedural default is irrelevant in the prejudice analysis. Maupin must therefore demonstrate prejudice based on his constitutional claim, irrespective of his procedural fault. Second, the burden is on the petitioner to show that he was prejudiced by the alleged constitutional error. Frady, 456 U.S. at 170, 102 S.Ct. at 1595. Moreover, he must show that there was actual prejudice not merely a possibility of prejudice. Id. See also Engle v. Isaac, 456 U.S. at 129, 102 S.Ct. at 1572. Third, in analyzing a petitioner’s contention of prejudice, the court should assume that the petitioner has stated a meritorious constitutional claim. One must remember that the question decided in Sykes was when a state procedural default would prevent a federal court from considering the merits of habeas claim. Sykes, 433 U.S. at 78-79, 97 S.Ct. at 2502. If a court reviews the merits of the petitioner’s habeas claim in conjunction with the court’s prejudice determination, as the district court did in this case, the court would have merged the Sykes issue with the issue of the merits. See Ford v. Strickland, 696 F.2d 804, 844, 858-59 (11th Cir.)" } ]

[ { "docid": "21706394", "title": "", "text": "the showing required to satisfy § 2253(c) is straightforward: The petitioner must demonstrate that reasonable jurists would find the district court’s assessment of the constitutional claims debatable or wrong.” Miller-El v. Cockrell, 537 U.S. at 338, 123 S.Ct. 1029 (quoting Slack v. McDaniel, 529 U.S. at 484, 120 S.Ct. 1595); accord Tennard v. Dretke, 542 U.S. at 282, 124 S.Ct. 2562. In a case in which the petitioner wishes to challenge on appeal this Court’s dismissal of a claim for a reason not of constitutional dimension, such as procedural default, limitations, or lack of exhaustion, the petitioner must show jurists of reason would find it debatable whether the petition states a valid claim of the denial of a constitutional right and whether this Court was correct in its procedural ruling. See Slack v. McDaniel, 529 U.S. at 484, 120 S.Ct. 1595 (holding when a district court denies a habeas claim on procedural grounds, without reaching the underlying constitutional claim, a CoA may issue only when the petitioner shows reasonable jurists would find it debatable whether the claim is a valid assertion of the denial of a constitutional right, and the district court’s procedural ruling was correct). In death penalty cases, any doubt as to whether a CoA should issue must be resolved in the petitioner’s favor. Foster v. Quarterman, 466 F.3d 359, 364 (5th Cir.2006), cert. denied, — U.S. —, 127 S.Ct. 2099, 167 L.Ed.2d 817 (2007); Dickson v. Quarterman, 462 F.3d 470, 476 (5th Cir.2006); Pippin v. Dretke, 434 F.3d 782, 787 (5th Cir.2005), cert. denied, — U.S. —, 127 S.Ct. 351, 166 L.Ed.2d 49 (2006); Bridgers v. Dretke, 431 F.3d 853, 861 (5th Cir.2005), cert. denied, 548 U.S. 909, 126 S.Ct. 2961, 165 L.Ed.2d 959 (2006). Nonetheless, a CoA is not automatically granted in every death penalty habeas case. See, e.g., Scheanette v. Quarterman, 482 F.3d at 828-29 (holding petitioner not entitled to a CoA on a Ring/Apprendi claim nearly identical to petitioner’s twenty-fifth claim herein); Turner v. Quarterman, 481 F.3d 292, 301-02 (5th Cir.) (holding petitioner eligible for CoA on neither ineffective assistance, Ring, nor “failure to" }, { "docid": "1460757", "title": "", "text": "S.Ct. at 1040 (quoting Slack v. McDaniel, 529 U.S. at 484, 120 S.Ct. at 1604); accord Tennard v. Dretke, 124 S.Ct. at 2569. In a case in which the petitioner wishes to challenge on appeal this Court’s dismissal of a claim for a reason not of constitutional dimension, such as procedural default, limitations, or lack of exhaustion, the petitioner must show that jurists of reason would find it debatable whether the petition states a valid claim of the denial of a constitutional right and whether this Court was correct in its procedural ruling. See Slack v. McDaniel, 529 U.S. at 484, 120 S.Ct. at 1604 (holding when a district court denies a habeas claim on procedural grounds, without reaching the underlying constitutional claim, a CoA may issue only when the petitioner shows that reasonable jurists would find it debatable whether: (1) the claim is a valid assertion of the denial of a constitutional right and (2) the district court’s procedural ruling was correct). Viewed in proper context, there is no basis for disagreement among jurists of reason with regard to this Court’s disposition of any of petitioner’s claims herein. Petitioner’s complaints about the presence of Rosemary Harrell on his petit jury ignore the fact petitioner has offered no court any fact-specific allegations, much less any evidence, showing she was biased in any respect against petitioner. Furthermore, there is no room for disagreement among reasonable jurists with this Court’s determination that petitioner failed to present this Court with any fact-specific allegations, much less clear and convincing evidence, establishing Rosemary Harrell was in fact ever convicted of any criminal offense in connection with her January, 1979 theft arrest. Petitioner’s procedurally defaulted complaints about the trial court’s granting of the prosecution’s challenge for cause to Gerald Becker likewise fail to acknowledge the highly deferential nature of federal habeas review of a state trial judge’s implicit factual findings regarding juror bias. Moreover, petitioner also procedurally defaulted on his complaints about Rosemary Harrell’s service on his jury, the trial court’s denials of his unsupported motions for severance, and allegedly withheld agreements between petitioner’s prosecutors and" }, { "docid": "7599259", "title": "", "text": "issues not properly preserved below but explicitly raised on appeal when reviewing death-penalty convictions. To the extent the Ohio courts review these improperly preserved claims for plain error, that does not save the claims from procedural default. See Coleman v. Thompson, 501 U.S. 722, 741, 111 S.Ct. 2546, 115 L.Ed.2d 640 (1991); Lundgren v. Mitchell, 440 F.3d 754, 765 (6th Cir.2006). It requires a significant “conceptual leap” at any rate to go from reviewing claims not properly preserved, but explicitly raised, to claims that were never raised at all. Cone, 359 F.3d at 792-93. We decline to make that leap today without any Ohio authority for attempting it. B. Webb challenges the district court’s conclusion that he procedurally defaulted numerous ineffective-assistance claims during the guilt phase. But nothing can come of this challenge because the district court also rejected these claims on the merits and Webb did not ask for a certificate of appealability on the merits determinations with respect to these claims. No court thus could grant the writ on this basis even if we held that these claims were not procedurally defaulted. While we are generally not in the business of reversing certificates of appealability, see Porterfield v. Bell, 258 F.3d 484, 485 (6th Cir.2001), it bears repeating what is required before one can be issued. To obtain a COA on an issue, a petitioner must show that “reasonable jurists would find the district court’s assessment of the constitutional claim[ ] debatable or wrong.” Miller-El v. Cockrell, 537 U.S. 322, 338, 123 S.Ct. 1029, 154 L.Ed.2d 931 (2003). This inquiry is straightforward when a district court denies a constitutional claim on the merits. But where the district court denies an issue on procedural grounds without evaluating the merits of the underlying constitutional claim, courts should grant a COA only if two requirements are satisfied. See Slack v. McDaniel, 529 U.S. 473, 484-85, 120 S.Ct. 1595, 146 L.Ed.2d 542 (2000). First, the court must determine that reasonable jurists would find the district court’s procedural assessment debatable or wrong. Id. at 484, 120 S.Ct. 1595. Second, the court must determine" }, { "docid": "13798464", "title": "", "text": "\"to the extent that it allows a sentencing judge, sitting without a jury, to find an aggravating circumstance necessary for imposition of the death penalty.” Ring, 536 U.S. at 609, 122 S.Ct. 2428. Consequently, the portion of Walton finding it permissible for the defendant to be required to proved the existence of mitigating factors by a preponderance of the evidence remains intact. . This claim was properly preserved for ha-beas review. The Respondent does not argue otherwise. . This claim was not preserved for habeas review because it was not presented to the state courts in timely fashion. Nevertheless and in an abundance of caution, the court reviews the claim on its merits to ensure that no miscarriage of justice occurred. It did not. . This claim was not preserved for habeas review because it was not presented to the state courts in timely fashion. Nevertheless and in an abundance of caution, the court reviews the claim on its merits to ensure that no miscarriage of justice occurred. It did not. . The Court went on to distinguish the analysis a habeas court must perform depending upon its finding concerning the defaulted status of the claim. If the claim is not procedurally defaulted, then a habeas court need only determine whether reasonable jurists would find the district court’s decision \"debatable or wrong.” Id. at 484, 120 S.Ct. 1595. A more complicated analysis is required, however, when assessing whether to grant a COA for a claim that the district court has determined procedurally defaulted. In those instances, the Court opined, a COA should only issue if “jurists of reason would find it debatable whether the petition states a valid claim of the denial of a constitutional right and that jurists of reason would find it debatable whether the district court was correct in its procedural ruling.” Id. (emphasis supplied)." }, { "docid": "21706393", "title": "", "text": "on the merits but, rather, must demonstrate that reasonable jurists could debate whether (or, for that matter, agree) the petition should have been resolved in a different manner or that the issues presented are adequate to deserve encouragement to proceed further. Tennard v. Dretke, 542 U.S. at 282, 124 S.Ct. 2562; Miller-El v. Cockrell, 537 U.S. at 336; 123 S.Ct. 1029 Slack v. McDaniel, 529 U.S. at 484, 120 S.Ct. 1595; Barefoot v. Estelle, 463 U.S. at 893 n. 4, 103 S.Ct. 3383. This Court is authorized to address the propriety of granting a CoA sua sponte. Alexander v. Johnson, 211 F.3d 895, 898 (5th Cir.2000). The showing necessary to obtain a CoA on a particular claim is dependent upon the manner in which the District Court has disposed of a claim. If this Court rejects a prisoner’s constitutional claim on the merits, the petitioner must demonstrate reasonable jurists could find the court’s assessment of the constitutional claim to be debatable or wrong. “[W]here a district court has rejected the constitutional claims on the merits, the showing required to satisfy § 2253(c) is straightforward: The petitioner must demonstrate that reasonable jurists would find the district court’s assessment of the constitutional claims debatable or wrong.” Miller-El v. Cockrell, 537 U.S. at 338, 123 S.Ct. 1029 (quoting Slack v. McDaniel, 529 U.S. at 484, 120 S.Ct. 1595); accord Tennard v. Dretke, 542 U.S. at 282, 124 S.Ct. 2562. In a case in which the petitioner wishes to challenge on appeal this Court’s dismissal of a claim for a reason not of constitutional dimension, such as procedural default, limitations, or lack of exhaustion, the petitioner must show jurists of reason would find it debatable whether the petition states a valid claim of the denial of a constitutional right and whether this Court was correct in its procedural ruling. See Slack v. McDaniel, 529 U.S. at 484, 120 S.Ct. 1595 (holding when a district court denies a habeas claim on procedural grounds, without reaching the underlying constitutional claim, a CoA may issue only when the petitioner shows reasonable jurists would find it debatable whether" }, { "docid": "22657543", "title": "", "text": "the 1996 version of § 15A-1419 does not violate the Ex Post Facto Clause. Therefore, we deny Rose’s request for a certifícate of appealability as to this issue. B. PROCEDURALLY DEFAULTED CLAIMS Rose seeks to appeal the district court’s denial of several claims pursuant to the district court’s finding that the claims were procedurally defaulted. As established in Slack, to secure a certificate of appealability on claims that the district court denied pursuant to procedural grounds, Rose must demonstrate both (l)“that jurists of reason would find it debatable whether the petition states a valid claim of the denial of a constitutional right” and (2)“that jurists of reason would find it debatable whether the district court was correct in its procedural ruling.” Slack, 529 U.S. at 484, 120 S.Ct. 1595. In conducting our analysis under this two-prong test, we may proceed first “to resolve the issue whose answer is more apparent from the record and arguments.” Id. at 485, 120 S.Ct. 1595. 1. Rose’s Confession Rose first seeks to appeal the district court’s denial of his claim that his confession was unconstitutionally compelled with a promise of life imprisonment and then used to secure his death sentence. The district court found that Rose’s illegally obtained confession claim was proeedurally defaulted for purposes of federal habeas review because the State habeas court determined that it was proeedurally barred pursuant to N.C.Gen.Stat. § 15A-1419(a)(2) (1996). To determine whether Rose is entitled to a certificate of appeala-bility on his confession claim, we first address “whether jurists of reason would find it debatable whether the petition states a valid claim of the denial of a constitutional right.” Slack, 529 U.S. at 484, 120 S.Ct. 1595. Before the State habeas court, Rose submitted affidavits from his mother and sister, both dated January 6, 1998,' averring that on January 15, 1991, an agent told them and Rose directly that “things would go easier on [Rose] if he told them where the body was.” (J.A. at 769.) The State habeas court noted that the allegations contained in the affidavits were presented and considered on direct appeal. As Rose’s" }, { "docid": "1460756", "title": "", "text": "further. Tennard v. Dretke, 124 S.Ct. at 2569; Miller-El v. Cockrell, 537 U.S. at 336, 123 S.Ct. at 1039; Slack v. McDaniel, 529 U.S. at 484, 120 S.Ct. at 1604; Barefoot v. Estelle, 463 U.S. at 893 n. 4, 103 S.Ct. at 3394 n. 4. This Court is authorized to address the propriety of granting a CoA sua sponte. Alexander v. Johnson, 211 F.3d 895, 898 (5th Cir.2000). The showing necessary to obtain a CoA on a particular claim is dependent upon the manner in which the District Court has disposed of a claim. If this Court rejects a prisoner’s constitutional claim on the merits, the petitioner must demonstrate that reasonable jurists could find the court’s assessment of the constitutional claim to be debatable or wrong. “[W]here a district court has rejected the constitutional claims on the merits, the showing required to satisfy § 2253(c) is straightforward: The petitioner must demonstrate that reasonable jurists would find the district court’s assessment of the constitutional claims debatable or wrong.” Miller-El v. Cockrell, 537 U.S. at 338, 123 S.Ct. at 1040 (quoting Slack v. McDaniel, 529 U.S. at 484, 120 S.Ct. at 1604); accord Tennard v. Dretke, 124 S.Ct. at 2569. In a case in which the petitioner wishes to challenge on appeal this Court’s dismissal of a claim for a reason not of constitutional dimension, such as procedural default, limitations, or lack of exhaustion, the petitioner must show that jurists of reason would find it debatable whether the petition states a valid claim of the denial of a constitutional right and whether this Court was correct in its procedural ruling. See Slack v. McDaniel, 529 U.S. at 484, 120 S.Ct. at 1604 (holding when a district court denies a habeas claim on procedural grounds, without reaching the underlying constitutional claim, a CoA may issue only when the petitioner shows that reasonable jurists would find it debatable whether: (1) the claim is a valid assertion of the denial of a constitutional right and (2) the district court’s procedural ruling was correct). Viewed in proper context, there is no basis for disagreement among jurists" }, { "docid": "21214622", "title": "", "text": "constitutional claim to be debatable or wrong. “[WJhere a district court has rejected the constitutional claims on the merits, the showing required to satisfy § 2253(c) is straightforward: The petitioner must demonstrate that reasonable jurists would find the district court’s assessment of the constitutional claims debatable or wrong.” Miller-El v. Cockrell, 537 U.S. at 338, 123 S.Ct. at 1040 (quoting Slack v. McDaniel, 529 U.S. at 484, 120 S.Ct. at 1604). Accord Tennard v. Dretke, 542 U.S. at 282, 124 S.Ct. at 2569. In a case in which the petitioner wishes to challenge on appeal this Court’s dismissal of a claim for a reason not of constitutional dimension, such as procedural default, limitations, or lack of exhaustion, the petitioner must show jurists of reason would find it debatable whether the petition states a valid claim of the denial of a constitutional right and whether this Court was correct in its procedural ruling. See Slack v. McDaniel, 529 U.S. at 484, 120 S.Ct. at 1604 (holding when a district court denies a habeas claim on procedural grounds, without reaching the underlying constitutional claim, a CoA may issue only when the petitioner shows that reasonable jurists would find it debatable whether (1) the claim is a valid assertion of the denial of a constitutional right and (2) the district court’s procedural ruling was correct). In death penalty cases, any doubt as to whether a CoA should issue must be resolved in the petitioner’s favor. Foster v. Quarterman, 466 F.3d 359, 364 (5th Cir.2006), cert. denied, — U.S. -, 127 S.Ct. 2099, 167 L.Ed.2d 817 (2007); Dickson v. Quarterman, 462 F.3d 470, 476 (5th Cir.2006); Pippin v. Dretke, 434 F.3d 782, 787 (5th Cir.2005), cert. denied, — U.S. -, 127 S.Ct. 351, 166 L.Ed.2d 49 (2006); Bridgers v. Dretke, 431 F.3d 853, 861 (5th Cir.2005), cert. denied, — U.S. -, 126 S.Ct. 2961, 165 L.Ed.2d 959 (2006). Petitioner’s eighth, tenth, and eighteenth claims herein are not only without arguable merit, they border on the legally frivolous. There is no room for disagreement among reasonable jurists that petitioner procedurally defaulted on his unex-hausted fourteenth" }, { "docid": "84030", "title": "", "text": "(5th Cir.2000). The showing necessary to obtain a CoA on a particular claim is dependent upon the manner in which the District Court has disposed of a claim. If this Court rejects a prisoner’s constitutional claim on the merits, the petitioner must demonstrate reasonable jurists could find the court’s assessment of the constitutional claim to be debatable or wrong. “[WJhere a district court has rejected the constitutional claims on the merits, the showing required to satisfy § 2253(c) is straightforward: The petitioner must demonstrate that reasonable jurists would find the district court’s assessment of the constitutional claims debatable or wrong.” Miller-El v. Cockrell, 537 U.S. at 338, 123 S.Ct. at 1040 (quoting Slack v. McDaniel, 529 U.S. at 484, 120 S.Ct. at 1604). Accord Tennard v. Dretke, 542 U.S. at 282, 124 S.Ct. at 2569. In a case in which the petitioner wishes to challenge on appeal this Court’s dismissal of a claim for a reason not of constitutional dimension, such as procedural default, limitations, or lack of exhaustion, the petitioner must show jurists of reason would find it debatable whether the petition states a valid claim of the denial of a constitutional right and whether this Court was correct in its procedural ruling. See Slack v. McDaniel, 529 U.S. at 484, 120 S.Ct. at 1604 (holding when a district court denies a habeas claim on procedural grounds, without reaching the underlying constitutional claim, a CoA may issue only when the petitioner shows that reasonable jurists would find it debatable whether (1) the claim is a valid assertion of the denial of a constitutional right and (2) the district court’s procedural ruling was correct). In death penalty cases, any doubt as to whether a CoA should issue must be resolved in the petitioner’s favor. Foster v. Quarterman, 466 F.3d 359, 364 (5th Cir.2006), cert. denied, — U.S.-, 127 S.Ct. 2099, 167 L.Ed.2d 817 (2007); Dickson v. Quarterman, 462 F.3d 470, 476 (5th Cir.2006); Pippin v. Dretke, 434 F.3d 782, 787 (5th Cir.2005), cert. denied, — U.S. -, 127 S.Ct. 351, 166 L.Ed.2d 49 (2006); Bridgers v. Dretke, 431 F.3d 853," }, { "docid": "2875795", "title": "", "text": "This analysis should also be applied when the Court has denied a claim on procedural grounds. Id. at 483, 120 S.Ct. 1595; see also Porterfield v. Bell, 258 F.3d 484, 486 (6th Cir.2001). When the Court dismisses a claim on procedural grounds, a certifícate of appealability is warranted when petitioner demonstrates (1) that jurists of reason would find it debatable whether the petition states a valid claim and (2) that jurists of reason would find it debatable whether the district court was correct in its procedural ruling. Slack, 529 U.S. at 484, 120 S.Ct. 1595. Because the Court agrees with and adopts the Magistrate Judge’s decision to sua sponte recognize and enforce the default of Petitioner’s first ground for relief, and because the Court views as a “close call” whether the dismissal of prospective juror Wells was proper under Wainwright v. Witt, 469 U.S. at 424,105 S.Ct. 844, even though the Court was prevented by the procedural default from addressing the merits of the claim, the Court is satisfied that reasonable jurists could find debatable or wrong the Court’s decision rejecting this claim. Accordingly, the Court hereby CERTIFIES for appeal not only its decision rejecting ground one as procedurally defaulted, but also, if appropriate, the merits of ground one. B. Ground Two: Improper Weighing of Duplicative Specifications. Petitioner argued in his second ground for relief that his death sentence is constitutionally infirm and in violation of his rights under the Eighth and Fourteenth Amendments because the jury and trial judge improperly weighed duplicative aggravating circumstances in sentencing Petitioner to death. (Doc. # 77, at ¶¶ 17-24.) Petitioner further argued that the state courts failed to recognize, much less correct, the error, insofar as the appellate court invalidated one of the duplicative specifications in its independent weighing process, while the Ohio Supreme Court went on in its independent weighing process to consider both aggravating circumstances. The Magistrate Judge recommended denying Petitioner’s claim as procedurally defaulted. (Doc. # 94, at 1073-75.) Specifically, the Magistrate Judge concluded that Petitioner had defaulted the claim because he failed to raise a contemporaneous objection to the" }, { "docid": "8946589", "title": "", "text": "proceeding. The district court issued a memorandum and order granting the respondent’s summary-judgment motion and dismissing Matchett’s 28 U.S.C. § 2254 application. The court concluded that all of Matchett’s ineffective-assistance claims were procedurally defaulted and that Matchett’s assertion that counsel performed ineffectively during his first state post-conviction proceeding did not qualify as “cause” to excuse such default. The court also concluded that the intoxication-charge claim was procedurally defaulted. Matchett now seeks a COA from us. II. ANALYSIS A. COA standard A COA may issue “only if the applicant has made a substantial showing of the denial of a constitutional right.” 28 U.S.C. § 2253(c)(2). “The COA determination under § 2253(c) requires an overview of the claims in the habeas petition and a general assessment of their merits.” Miller-El v. Cockrell, 537 U.S. 322, 336, 123 S.Ct. 1029, 154 L.Ed.2d 931 (2003). This threshold inquiry does not require a showing that the appeal will succeed. Id. at 337, 123 S.Ct. 1029. When a district court has denied relief on nonconstitutional grounds, as with its procedural-default ruling here, the petitioner must show “that jurists of reason would find it debatable whether the petition states a valid claim of the denial of a constitutional right and that jurists of reason would find it debatable whether the district court was correct in its procedural ruling.” Slack v. McDaniel, 529 U.S. 473, 484, 120 S.Ct. 1595, 146 L.Ed.2d 542 (2000). In death-penalty cases, “ ‘any doubts as to whether a COA should [be] issue[d] must be resolved in [the petitioner’s] favor.’ ” Bigby v. Cockrell, 340 F.3d 259, 265-66 (5th Cir.2003) (citation omitted). B. Abandoned claims In the brief filed in support of his COA application, Matchett does not pursue either his claim that counsel performed ineffectively by failing to object to Dr. Quijano’s testimony or his claim that the trial court gave an improper instruction with respect to cocaine intoxication. We deem these claims abandoned. Hughes v. Johnson, 191 F.3d 607, 613 (5th Cir.1999); see Fed. R.App. P. 28(a)(9). Neither does Matchett challenge the district court’s ruling that these two claims were procedurally defaulted." }, { "docid": "21782554", "title": "", "text": "infra, including note 21. . Contrary to how the special concurrence reads this dissent, it does not: (1) advocate a non-objective standard for \"reasonableness”; (2) cite the divided opinions by our panel and the Court of Criminal Appeals \"as evidence that the application of the Cronic rule was 'debatable among reasonable jurists’ ”; or (3) defer to state rulings of law. Sp. Con. at 355-56 (emphasis added). The \"reasonableness” analysis, however, can certainly be tested against how other courts have ruled on a similar issue; this dissent does so. See, e.g., Caspari, 510 U.S. at 393, 114 S.Ct. 948. After “conclud[ing] that a reasonable jurist reviewing [the Supreme Court’s] precedents at the time [the] conviction and sentence became final would not have considered the application of the Double Jeopardy Clause to a non-capital sentencing proceeding to be dictated by [its] precedents”, the Supreme Court stated: \"This analysis is confirmed by the experience of the lower courts”. Id.; see also Lambrix v. Singletary, 520 U.S. 518, 538, 117 S.Ct. 1517, 137 L.Ed.2d 771 (1997) (noting unanimity of other court decisions on point at issue). . This \"debatable among reasonable jurists standard” is quite similar to that used under AEDPA for whether a certificate of appeala-bility (COA) should be granted, so that the habeas petitioner can appeal a district court’s denial of habeas relief. See 28 U.S.C. § 2253(c) (COA may not issue unless \"the applicant has made a substantial showing of the denial of a constitutional right”); Slack v. McDaniel, 529 U.S. 473, 484, 120 S.Ct. 1595, 146 L.Ed.2d 542 (2000) (when district court has rejected constitutional claims on merits, COA should issue if petitioner demonstrates “reasonable jurists would find the district court’s assessment of the constitutional claims debatable or wrong”; when it denies relief on procedural grounds, COA should issue if petitioner \"shows, at least, that jurists of reason would find it ’debatable whether the petition states a valid claim of the denial of a constitutional right and that jurists of reason would find it debatable whether the district court was correct in its procedural ruling”). Needless to say, the" }, { "docid": "8007635", "title": "", "text": "In parsing this statutory language, the Court in Slack first observed that “Congress expressed no intention to allow trial court procedural error to bar vindication of substantial constitutional rights on appeal.” Id., 529 U.S. at 483, 120 S.Ct. 1595. Nonetheless, the Court went on to hold: When the district court denies a habeas petition on procedural grounds without reaching the prisoner’s underlying constitutional claim, a COA should issue when the prisoner shows, at least, that jurists of reason would find it debatable whether the petition states a valid claim of the denial of a constitutional right and that jurists of reason would find it debatable whether the district court was correct in its procedural ruling. This construction gives meaning to Congress’ requirement that a prisoner demonstrate substantial underlying constitutional claims and is in conformity with the meaning of the “substantial showing” standard provided in Barefoot, supra, at 893, and n. 4, 463 U.S. 880, 103 S.Ct. 3383, 77 L.Ed.2d 1090, and adopted by Congress in AEDPA. Where a plain procedural bar is present and the district court is correct to invoke it to dispose of the case, a reasonable jurist could not conclude either that the district court erred in dismissing the petition or that the petitioner should be allowed to proceed further. In such a circumstance, no appeal would be warranted. Id. at 484, 120 S.Ct. 1595. Furthermore, the Court went on to underscore that this inquiry has two components, “one directed at the underlying constitutional claims and one directed at the district court’s procedural holding.” Id. at 485, 120 S.Ct. 1595. In the case before us, the district court granted summary judgment to the respondent on a number of claims based upon procedural default. Yet, in granting a certificate of appealability as to all claims, the court did not provide us with any analysis to indicate that it had engaged in the two-pronged inquiry set forth in Slack as to each of the procedurally defaulted claims. Rather, the court simply ordered, “In accordance with the standard set forth in Barefoot v. Estelle, 463 U.S. 880, 893, 103 S.Ct." }, { "docid": "23703220", "title": "", "text": "not require full consideration of the factual or legal bases adduced in support of the claims.” Id. We do not have jurisdiction to justify our denial of a COA based on an adjudication of the actual merits of the claims. Id. Accordingly, we cannot deny an “application for a COA merely because [we believe] the applicant will not demonstrate an entitlement to relief.” Id. “[A] claim can be debatable even though every jurist of reason might agree, after the COA has been granted and the case has received full consideration, that petitioner will not prevail.” Id. Thus, we reiterate that our immediate task is to determine, not the ultimate merits of Henderson’s claims, but only whether Henderson has demonstrated that “jurists of reason would find it debatable whether the petition states a valid claim of the denial of a constitutional right, and that jurists of reason would find it debatable whether the district court was correct in its procedural ruling.” Slack, 529 U.S. at 484, 120 S.Ct. 1595. We consider first whether “jurists of reason would find it debatable whether the district court was correct in its procedural ruling.” Id. In order to make that determination, it is necessary that we consider the procedural default doctrine. A federal habeas court plainly cannot grant relief where the last state court to consider the claim raised by the petitioner expressly and unambiguously based its denial of relief on an independent and adequate state law procedural ground. Coleman v. Thompson, 501 U.S. 722, 729-30, 111 S.Ct. 2546, 115 L.Ed.2d 640 (1991); Hughes v. Johnson, 191 F.3d 607, 614 (5th Cir.1999). A state procedural rule is adequate if it is “firmly established” and regularly and consistently applied by the state court. James v. Kentucky, 466 U.S. 341, 348, 104 S.Ct. 1830, 80 L.Ed.2d 346 (1984); Johnson v. Mississippi, 486 U.S. 578, 587, 108 S.Ct. 1981, 100 L.Ed.2d 575 (1988). A state procedural rule is independent if it does not “depend[ ] on a federal constitutional ruling.” Ake v. Oklahoma, 470 U.S. 68, 75, 105 S.Ct. 1087, 84 L.Ed.2d 53 (1985). When the state court" }, { "docid": "23442043", "title": "", "text": "not an exacting standard. Id. at 826. We will “not decline the application for a COA merely because [we] believe[ ] the applicant will not [ultimately] demonstrate an entitlement to relief.” Miller-El, 537 U.S. at 337, 123 S.Ct. 1029. Rather, we will issue a COA “if jurists of reason would find it debatable whether the petition states a valid claim of the denial of a constitutional right.” Wilson, 554 F.3d at 826. If, however, the district court denies a habeas petition on procedural grounds without reaching the prisoner’s underlying constitutional claim, a COA should issue when ... jurists of reason would find it debatable whether the petition states a valid claim of the denial of a constitutional right and that jurists of reason would find it debatable whether the district court was correct in its procedural ruling. Slack, 529 U.S. at 484, 120 S.Ct. 1595 (emphasis added). “Where a plain procedural bar is present and the district court is correct to invoke it to dispose of the case, a reasonable jurist could not[, however,] conclude either that the district court erred in dismissing the petition or that the petitioner should be allowed to proceed further.” Id. If both inquiries are satisfied, we will grant a COA. See Hoffman v. Arave, 455 F.3d 926, 943-44 (9th Cir.2006), vacated in part on other grounds by Arave v. Hoffman, 552 U.S. 117, 128 S.Ct. 749, 169 L.Ed.2d 580 (2008); United States v. Martin, 226 F.3d 1042, 1046-47 (9th Cir.2000). III. DISCUSSION A. Batson Claim Murray’s primary claim is that the state court’s denial of his Batson objection was contrary to, or involved an unreasonable application of, clearly established Federal law, or based upon an unreasonable determination of the facts. He raises two separate points. First, Murray contends that the state court’s failure to engage in a comparative juror analysis alone is an unreasonable application of clearly established Federal law. Second, Murray asserts that an independent evaluation of the voir dire transcript, application of comparative juror analysis, and a consideration of the fact that the prosecutor relied on subjective factors “clearly and convincingly” refutes" }, { "docid": "23703218", "title": "", "text": "claims, presented for the first time in Henderson’s second state habeas application, were barred by the Texas abuse of the writ doctrine. The district court therefore held that the claims were procedurally defaulted, and further denied Henderson’s request for a COA on these claims. Henderson now requests a COA from this court. “[UJntil a COA has been issued federal courts of appeals lack jurisdiction to rule on the merits of appeals from habeas petitioners.” Miller-El v. Cockrell, 537 U.S. 322, 123 S.Ct. 1029, 1039, 154 L.Ed.2d 931 (2003). To obtain a COA, Henderson must make “a substantial showing of the denial of a constitutional right.” 28 U.S.C. § 2253(c)(2); Miller-El, 123 S.Ct. at 1039; Slack v. McDaniel, 529 U.S. 473, 483, 120 S.Ct. 1595, 146 L.Ed.2d 542 (2000). To make such a showing, he must demonstrate that “reasonable jurists could debate whether (or, for that matter, agree that) the petition should have been resolved in a different manner or that the issues presented were adequate to deserve encouragement to proceed further.” Miller-El, 123 S.Ct. at 1039 (quoting Slack, 529 U.S. at 484, 120 S.Ct. 1595). Because the district court held that these habeas claims were procedurally barred, Henderson must show, “at least, that jurists of reason would find it debatable whether the petition states a valid claim of the denial of a constitutional right, and that jurists of reason would find it debatable whether the district court was correct in its procedural ruling.” Slack, 529 U.S. at 484, 120 S.Ct. 1595. In Miller-El, the Supreme Court instructed, as it had previously held in Slack, that we should “limit [our] examination to a threshold inquiry into the underlying merit of [the petitioner’s] claims.” Miller-El, 123 S.Ct. at 1034, 123 S.Ct. 1029. The Court observed that “a COA ruling is not the occasion for a ruling on the merit of petitioner’s claim.... ” Id. at 1036, 123 S.Ct. 1029. Instead, our determination must be based on “an overview of the claims in the habeas petition and a general assessment of their merits.” Id. at 1039, 123 S.Ct. 1029. “This threshold inquiry does" }, { "docid": "7870290", "title": "", "text": "1029, 1039, 154 L.Ed.2d 931 (2003) (noting that a COA is “a jurisdictional prerequisite” to consideration of an appeal by a prisoner denied habeas relief in the district court). To make the requisite substantial showing, “a petitioner must ‘show that reasonable jurists could debate whether (or, for that matter, agree that) the petition should have been resolved in a different manner or that the issues presented were “adequate to deserve encouragement to proceed further.’ ’” ” Id. (quoting Slack, 529 U.S. at 484, 120 S.Ct. 1595 (in turn quoting Barefoot v. Estelle, 463 U.S. 880, 893 & n. 4, 103 S.Ct. 3383, 77 L.Ed.2d 1090 (1983))). The Supreme Court has held that “[wjhere a district court has rejected [a petitioner’s] constitutional claims on the merits, ... [t]he petitioner must demonstrate that reasonable jurists would find the district court’s assessment of the constitutional claims debatable or wrong” to obtain a COA. Slack v. McDaniel, 529 U.S. 473, 484, 120 S.Ct. 1595, 146 L.Ed.2d 542 (2000). Further, “[w]hen the district court denies a habeas petition on procedural grounds without reaching the prisoner’s underlying constitutional claim, a COA should issue when the prisoner shows, at least, that jurists of reason would find it debatable whether the petition states a valid claim of the denial of a constitutional right and that jurists of reason would find it debatable whether the district court was correct in its procedural ruling.” Slack, 529 U.S. at 484, 120 S.Ct. 1595; cf. Miller-El, 123 S.Ct. at 1046 (Scalia, J., concurring) (noting that “a habeas petitioner seeking to appeal a district court’s denial of habeas relief on procedural grounds must not only make a substantial showing of the denial of a constitutional right but also must demonstrate that jurists of reason would find it debatable whether the district court was correct in its procedural ruling”). The Supreme Court has stated that “[t]his construction [of the standard applicable when the district court rejects a claim on procedural grounds] gives meaning to Congress’ requirement that a prisoner demonstrate substantial underlying constitutional claims and is in conformity with the meaning of the ‘substantial" }, { "docid": "23703219", "title": "", "text": "1039 (quoting Slack, 529 U.S. at 484, 120 S.Ct. 1595). Because the district court held that these habeas claims were procedurally barred, Henderson must show, “at least, that jurists of reason would find it debatable whether the petition states a valid claim of the denial of a constitutional right, and that jurists of reason would find it debatable whether the district court was correct in its procedural ruling.” Slack, 529 U.S. at 484, 120 S.Ct. 1595. In Miller-El, the Supreme Court instructed, as it had previously held in Slack, that we should “limit [our] examination to a threshold inquiry into the underlying merit of [the petitioner’s] claims.” Miller-El, 123 S.Ct. at 1034, 123 S.Ct. 1029. The Court observed that “a COA ruling is not the occasion for a ruling on the merit of petitioner’s claim.... ” Id. at 1036, 123 S.Ct. 1029. Instead, our determination must be based on “an overview of the claims in the habeas petition and a general assessment of their merits.” Id. at 1039, 123 S.Ct. 1029. “This threshold inquiry does not require full consideration of the factual or legal bases adduced in support of the claims.” Id. We do not have jurisdiction to justify our denial of a COA based on an adjudication of the actual merits of the claims. Id. Accordingly, we cannot deny an “application for a COA merely because [we believe] the applicant will not demonstrate an entitlement to relief.” Id. “[A] claim can be debatable even though every jurist of reason might agree, after the COA has been granted and the case has received full consideration, that petitioner will not prevail.” Id. Thus, we reiterate that our immediate task is to determine, not the ultimate merits of Henderson’s claims, but only whether Henderson has demonstrated that “jurists of reason would find it debatable whether the petition states a valid claim of the denial of a constitutional right, and that jurists of reason would find it debatable whether the district court was correct in its procedural ruling.” Slack, 529 U.S. at 484, 120 S.Ct. 1595. We consider first whether “jurists of reason" }, { "docid": "2875794", "title": "", "text": "action may not proceed unless a circuit justice or judge issues a certificate of appealability. 28 U.S.C. § 2253(c)(1). To warrant a certificate of appealability, a petitioner must make a substantial showing that he was denied a constitutional right. 28 U.S.C. § 2253(c)(2); see also Barefoot v. Estelle, 463 U.S. 880, 893, 103 S.Ct. 3383, 77 L.Ed.2d 1090 (1983); Lyons v. Ohio Adult Parole Authority, 105 F.3d 1063, 1073 (6th Cir.1997). He need not demonstrate that he will prevail on the merits; he needs only to demonstrate that the issues he seeks to appeal are deserving of further proceedings or are reasonably debatable among jurists of reason. Barefoot, 463 U.S. at 893 n. 4, 103 S.Ct. 3383. “Where a district court has rejected the constitutional claims on the merits, the showing required to satisfy 28 U.S.C. § 2253(c) is straightforward: The petitioner must demonstrate that reasonable jurists would find the district court’s assessment of the con stitutional claims debatable or wrong.” Slack v. McDaniel, 529 U.S. 473, 484, 120 S.Ct. 1595, 146 L.Ed.2d 542 (2000). This analysis should also be applied when the Court has denied a claim on procedural grounds. Id. at 483, 120 S.Ct. 1595; see also Porterfield v. Bell, 258 F.3d 484, 486 (6th Cir.2001). When the Court dismisses a claim on procedural grounds, a certifícate of appealability is warranted when petitioner demonstrates (1) that jurists of reason would find it debatable whether the petition states a valid claim and (2) that jurists of reason would find it debatable whether the district court was correct in its procedural ruling. Slack, 529 U.S. at 484, 120 S.Ct. 1595. Because the Court agrees with and adopts the Magistrate Judge’s decision to sua sponte recognize and enforce the default of Petitioner’s first ground for relief, and because the Court views as a “close call” whether the dismissal of prospective juror Wells was proper under Wainwright v. Witt, 469 U.S. at 424,105 S.Ct. 844, even though the Court was prevented by the procedural default from addressing the merits of the claim, the Court is satisfied that reasonable jurists could find debatable" }, { "docid": "9472931", "title": "", "text": "not violate due process under the Darden/Donnelly standard. Because the Arizona Supreme Court’s harmless error determination was objectively reasonable, we hold that Towery is not entitled to habeas relief based on Ditsworth’s prosecutorial misconduct. We further hold that any prosecutorial misconduct that did take place did not constitute a violation of due process cognizable in a federal habeas petition governed by AED-PA. II. Uncertified Issues Towery raises several additional claims that were not certified for appeal either by the district court or this court. Under Ninth Circuit Rule 22-1 (e), uncertified issues raised on appeal “will be construed as a motion to expand the COA and will be addressed by the merits panel to such extent as it deems appropriate.” We grant Towery’s motion to expand the COA as to the two claims discussed below, and deny it as to all other claims. A. Standard of Review for a Certificate of Appealability A COA should issue if a habeas prisoner can show “that reasonable jurists could debate whether (or, for that matter, agree that) the petition should have been resolved in a different manner or that the issues presented were adequate to deserve encouragement to proceed further.” Slack v. McDaniel, 529 U.S. 473, 484,120 S.Ct. 1595,146 L.Ed.2d 542 (2000) (internal quotation marks and citation omitted); accord Lambright v. Stewart, 220 F.3d 1022, 1025 (9th Cir.2000). A claim “can be debatable even though every jurist of reason might agree, after the COA has been granted and the case has received full consideration, that petitioner will not prevail.” Miller-El v. Cockrell, 537 U.S. 322, 338, 123 S.Ct. 1029, 154 L.Ed.2d 931 (2003). B. Judicial Bias at the Murder Trial We grant Towery’s motion to expand the COA on this claim because we conclude that jurists of reason might debate whether it has been procedurally defaulted. See Slack, 529 U.S. at 484, 120 S.Ct. 1595. Nonetheless, we hold that an independent and adequate state default rule applies and federal habeas review is barred. 1. Background The presiding judge at Towery’s murder trial, Judge Hendrix, had previously presided over Towery’s trial and conviction for" } ]

[ { "docid": "9449852", "title": "", "text": "60 L.Ed.2d 755 (1979). We will not resolve this thorny issue which has the circuits divided, compare United States v. Larranaga, 614 F.2d 239 (10th Cir.1980) (prosecution may proceed under two related statutes), with United States v. Larson, 625 F.2d 67 (5th Cir.1980) (prosecution not permitted to proceed under two related statutes), because Mayo has failed to demonstrate how he was prejudiced. Although he was prosecuted under two statutes that refer to different definitions of firearms (section 1202 not having an exception for antique firearms), we do not think the jury was confused as a result. The statutory definition of firearms for the purposes of 18 U.S.C. § 922(a)(1) was delivered verbatim to the jury. . Mayo also contends that the government’s proof was insufficient to support his conviction on count 12 which charged him with unlawful possession of the British Sten machine gun in violation of 26 U.S.C. § 5861(d) (1976). Section 5861(d) makes it unlawful for a person to possess a firearm that is not registered to him in the National Firearms Registration and Transfer Record. The government entered into evidence a certificate from a BATF examiner certifying that, “after deligent [sic] search of said record, I found no record that the firearms described below [British Sten machinegun] are registered to, or have been acquired by lawful making, transfer or importation by HAROLD F. MAYO, JR.....” J.App. at 103. Because the certificate was dated October 7, 1980, Mayo argues that it does not prove non-registration as of the date of the indictment, August 21, 1980. This deficiency was compounded, in Mayo’s view, by the district court’s instruction to the jury that the certificate established registration on August 21, 1980. We reject Mayo’s argument for several reasons. Considering the evidence in the light most favorable to the government, Glasser v. United States, 315 U.S. 60, 80, 62 S.Ct. 457, 469, 86 L.Ed. 680 (1942), the jury could have reasonably inferred that the BATF examiner did not limit her examination of the record to those weapons registered only on October 7, 1980. Moreover, the jury was presented with evidence showing" } ]

[ { "docid": "17013177", "title": "", "text": "of the chapter. Section 5821 requires a tax to be paid (by a stamp) upon the making of a firearm. Section 5822 prohibits any person from making a firearm unless he has done all of the following: filed an application, paid the prescribed tax, and “obtained the approval of the Secretary to make and register the firearm and the application form shows such approval.” Section 5841(c) provides that each maker shall, prior to making, obtain authorization and such authorization shall effect the registration. As evidence of violation, the government introduced a self-authenticating document (Fed.R.Evid. 902), an ATF certification that a diligent search of the National Firearms Register and Transfer Record (NFRTR) failed to disclose evidence that any firearm had been registered or acquired by defendant, or that he had made application to make firearms, or paid the making tax. It has been held that such certification is admissible proof of lack of registration under Rule 803(10), Fed.R. Evid., not admissible proof of failure to file an application or pay the tax, because filing occurs in advance of registration and payment of the tax is not directly reflected in NFRTR. United States v. Stout, 667 F.2d 1347, 1352 (11th Cir.1982), and United States v. Beason, 690 F.2d 439, 443 (5th Cir.1982), cert. denied, 459 U.S. 1177, 103 S.Ct. 828, 74 L.Ed.2d 1023 (1983). Because a person must obtain the Secretary’s approval before making a firearm, and because such approval effects registration, we think the ATF certification that no registration was of record is sufficient evidence of this element of the offense. We note that the Stout and Beason courts reversed the convictions of the unlawful making counts in those cases. Whether the indictments were different in form from the one before us, or not, those opinions appeared to treat the nonpayment of the tax as the critical element of the charge, not adequately proved. Stout, 667 F.2d at 1352-53; Beason, 690 F.2d at 441 n. 1, 446. Additionally, in the case before us, defendant made no objection at trial to the portions of the certification with respect to failure to find" }, { "docid": "16594345", "title": "", "text": "States v. Harris, 551 F.2d 621 (5th Cir.), cert. denied, 434 U.S. 836, 98 S.Ct. 125, 54 L.Ed.2d 98 (1977); United States v. Mix, 446 F.2d 615 (5th Cir. 1971). For example, in upholding the admissibility of an ATF affidavit that the defendant was not a licensed firearms dealer, we observed that the exception to the hearsay rule in Fed.R. Evid. 803(10), which authorizes such affidavit proof of the absence of a public record, is “justified because evidence admitted under [the rule] is in its nature highly reliable ... and because there is a substantial need for such evidence.” Harris, 551 F.2d at 622. We have also held that the admission of these highly reliable affidavits to prove the nonexistence of records does not violate the confrontation clause of the sixth amendment. Mix, 446 F.2d at 622-23 (the admission of an ATF affidavit, asserting that no record of a machine gun registration was found in the National Firearms Registration and Transfer Record, does not violate the confrontation clause). Moschetta acknowledges this precedent, but asserts that it is inapposite in this case because the government did not show that the CIA’s records are reliable. The same argument was rejected in United States v. Lee, 589 F.2d 980 (9th Cir.), cert. denied, 444 U.S. 969, 100 S.Ct. 460, 62 L.Ed.2d 382 (1979). The Ninth Circuit concluded the secretive nature of the business conducted by the CIA was not a sufficient reason to doubt the veracity of its officials. This was especially true, the court observed, where, as here, the CIA official knew that his affidavit would become evidence in a criminal prosecution and was well aware of the legal consequences of false swearing. Id. at 988. We agree with the Ninth Circuit, and, accordingly, find no merit in Moschetta’s sixth amendment objection. We have carefully examined appellants’ other claims of error and find them also without merit. The judgments of conviction are, therefore, AFFIRMED. . The charges against Dengler were dismissed prior to trial at the request of the government. . Moschetta also waived his objection that the affidavit was irrelevant. The" }, { "docid": "7010236", "title": "", "text": "him having paid any taxes for years. Thereafter, the government moved to admit three certified “Certificates of Assessments and Payments” (Forms 4340) for Spine's social security number for the years. 1982-1984 which stated that there was no record of the filing of a return. Spine argues, in effect, that this.evidence was impermissible hearsay and thus improperly admitted into evidence. We disagree. Spine’s argument concerning the 4340 Forms and the testimony of Fetters regarding them is not unlike that made by the defendant in United States v. Bowers, 920 F.2d 220 (4th Cir.1990). In Bowers, the government introduced the identical “Certificates of Assessments and Payments” in an effort to prove that the defendants had failed to pay their income taxes. The defendants, like Spine, argued that such documents were hearsay and did not satisfy any hearsay exception. The court rejected this argument finding the documents properly admissible under Fed.R.Evid. 803(10). Id. at 223. Rule 803(10) provides that the following are not excluded by the hearsay rule, even though the declarant is available as a witness: Absence of public record or entry. To prove the absence of a record, report, statement, or data compilation, in any form, or the nonoccurrence or nonexistence of a matter of which a record, report, statement, or data compilation, in any form, was regularly made and preserved by a public office or agency, evidence in the form of a certification in accordance with rule 902, or testimony, that diligent search failed to disclose the record, report, statement, or data compilation, or entry. We likewise find that these documents satisfy this exception to hearsay. The IRS regularly makes and preserves computer “data compilations” about taxpayers. The certificates disclose the “nonoccurrence ... of a matter” which would have been included in the data compilation. Bowers, 920 F.2d at 223. See also United States v. Neff, 615 F.2d 1235, 1242 (9th Cir.), cert. denied, 447 U.S. 925, 100 S.Ct. 3018, 65 L.Ed.2d 1117 (1980). Spine’s final argument, that the government failed to prove the essential elements of tax evasion, is disposed of quickly. Specifically, Spine argues that the government failed" }, { "docid": "16594344", "title": "", "text": "caused a search to be made of every CIA file that would have shown whether Moschetta or Virgil Grey had ever been employed by the CIA or assisted the agency in any activity, and that nothing was found to indicate that either of them had ever been involved with the CIA. Moschetta’s objection to the introduction of the affidavit was that it violated the confrontation clause of the sixth amendment; he wanted the right to cross examine the staff attorney in the presence of the jury. Moschetta expressly waived any hearsay objections he might have had to the affidavit as well as the requirement that the lack of an official record be attested to by an officer certified as the legal custodian of the official record or his deputy. See Fed.R.Crim.P. 27; Fed.R.Evid. 803(10), 902(4). In effect, then, Moschetta stipulated that the staff attorney was the person with legal custody of the records relevant to this case. We have previously addressed the admissibility of affidavits establishing the nonexistence of records of federal agencies. See United States v. Harris, 551 F.2d 621 (5th Cir.), cert. denied, 434 U.S. 836, 98 S.Ct. 125, 54 L.Ed.2d 98 (1977); United States v. Mix, 446 F.2d 615 (5th Cir. 1971). For example, in upholding the admissibility of an ATF affidavit that the defendant was not a licensed firearms dealer, we observed that the exception to the hearsay rule in Fed.R. Evid. 803(10), which authorizes such affidavit proof of the absence of a public record, is “justified because evidence admitted under [the rule] is in its nature highly reliable ... and because there is a substantial need for such evidence.” Harris, 551 F.2d at 622. We have also held that the admission of these highly reliable affidavits to prove the nonexistence of records does not violate the confrontation clause of the sixth amendment. Mix, 446 F.2d at 622-23 (the admission of an ATF affidavit, asserting that no record of a machine gun registration was found in the National Firearms Registration and Transfer Record, does not violate the confrontation clause). Moschetta acknowledges this precedent, but asserts that" }, { "docid": "14561134", "title": "", "text": "prior to Rith’s second set of incriminating statements met the requirements of the Constitution. Rith’s fruit-of-the-poisonous-tree argument fails and the incriminating statements were properly admitted. IV. Sixth Amendment Right to Confrontation and Hearsay 26 U.S.C. § 5861(d) makes it unlawful for any person “to receive or possess a firearm which is not registered to him in the National Firearms Registration and Transfer Record [NFRTR].” In its effort to prove that Rith failed to register the sawed-off shotgun in his possession, the government introduced into evidence a document signed by Bureau of Alcohol, Tobacco and Firearms [ATF] Specialist David Marshall stating that “after a diligent search of the ... [NFRTR], I have found no evidence that the firearm or firearms described below are registered to, or have been acquired by lawful manufacture, importation, or making by, or transfer to Mesa (NMN) Rith.” Affixed to the document was a sealed certificate signed by Acting Chief of the National Firearms Act Branch Denise Brown certifying that David Marshall signed in his official capacity and that his signature was genuine. Rith objected to the admission of this document [hereinafter “ATF certificate”] as hearsay and violative of the Confrontation Clause of the United States Constitution. The trial judge overruled his objection and received the certificate into evidence under Federal Rule of Evidence 803(10). At the close of his case, Rith moved to dismiss the indictment pursuant to Rule 29, Federal Rules of Criminal Procedure, arguing that the government failed to meet its burden of proving the nonregistration of the weapon. After considering Rith’s arguments and supporting documents, the trial judge denied the motion and submitted the matter to the jury. On appeal, Rith argues that his Sixth Amendment right to confront his accusers was denied by the admission of the ATF certificate. Rith’s argument is two-fold: first, he was denied the opportunity to question the signatory, David Marshall; and second, the NFRTR lacks the reliability required by the Confrontation Clause. Because Rith raises a constitutional claim, review of the trial court’s admission of the ATF certificate is de novo. See Bennett v. National Transp. Safety" }, { "docid": "14561154", "title": "", "text": "that mother had authority to consent to a search independent of her proprietary interest in the house). . Because Rith’s parents had actual authority to consent to the search of his bedroom, analysis of apparent authority to consent is unnecessary. See Illinois v. Rodriguez, 497 U.S. 177, 110 S.Ct. 2793, 111 L.Ed.2d 148 (1990) (holding that Fourth Amendment is not violated when officers enter without a warrant if they reasonably, albeit erroneously, believe that the third party has authority to consent to the entry). . The district court suppressed the first of Rith's incriminating statements merely because he had not been given the Miranda warnings, not because the statements were otherwise involuntarily given. .Federal Rule of Evidence 803(10) allows for the admission of evidence showing an absence of public record or entry if the record, report, statement, or data compilation was \"regularly made and preserved by a public office or agency,” and is accompanied by either a certification in accordance with Rule 902 or testimony that a \"diligent search failed to disclose the record, report, statement, or data compilation or entry.” Rule 902(2) provides for self-authentication of documents not under seal. The ATF certificate meets the requirements of the 803(10) exclusion from the hearsay rule. Congress ensured that the NFRTR was \"regularly made and preserved by a public office or agency” with 26 U.S.C. § 5841, which requires the Secretary of the Treasury to \"maintain a central registry of all firearms in the United States.... This registry shall be known as the National Firearms Registration and Transfer Record.” The ATF document was accompanied by certification which fulfilled the requirements of 902(2). The trial court’s admission of the ATF certificate over the defendant's hearsay objection was proper. . See Fed.R.Evid. 803(2). . See Fed.R.Evid. 803(4). . \"In all criminal prosecutions, the accused shall enjoy the right ... to have compulsory process for obtaining witnesses in his favor____” U.S. Const, amend. VI. . Rith did not offer his exhibit into evidence. . The government urges us to employ the Dut-ton v. Evans “four-part analysis” to determine the reliability of the evidence. 400" }, { "docid": "16501499", "title": "", "text": "Yakobov. Hall’s statement read in pertinent part as follows: I do hereby ... certify that after a diligent search of the records under my custody and control that pertain to firearms licenses, the search revealed no evidence of the receipt of an application for a firearms license or the issuance of such a license ón behalf of Jakubov [sic], Simantov [sic] DOB: 9/9/1950 1590 West 8th Street, Brooklyn, New York. The ATF Certificate was admitted under Fed.R.Evid. 803(8), over Yakobov’s objection, on the basis of the testimony of ATF special agent John A. O’Brien that a records search had been made. Neither MacVean nor Hall testified. The government presented no direct evidence as to Yakobov’s residence. We discuss the circumstantial evidence in Part II. C. below. The jury convicted Yakobov on all three counts with which he was charged. This appeal followed. II. DISCUSSION Yakobov’s principal argument on appeal is that the ATF Certificate was not admissible under Fed.R.Evid. 803(8) or any other exception to the hearsay rule. The government argues that the document was admissible under Fed.R.Evid. 803(10). For the reasons below we conclude that the ATF Certificate was improperly received in evidence because it was not admissible under Fed.R.Evid. 803(8) and did not meet the trustworthiness requirements of Rule 803(10). Yakobov therefore is entitled to a new trial. We also conclude that Yakobov’s conviction on count 3 must be reversed, and that count dismissed, because the government failed to prove beyond a reasonable doubt that Yakobov resided in New York, an essential element of the crime charged under 18 U.S.C. § 922(a)(3). A. Fed.R.Evid. 803(10) The basis for the government’s proffer of the ATF Certificate at trial is not entirely clear, and although only Fed.R. Evid. 803(8) was mentioned at trial, on appeal the government relies on Fed.R.Evid. 803(10) to support the certificate’s admission. We conclude that Rule 803(10) did not authorize receipt of the document in evidence. Rule 803(10) provides as follows: The following are not excluded by the hearsay rule, even though the declarant is available as a witness: (10) Absence of public record or entry." }, { "docid": "12350454", "title": "", "text": "determine whether Appellants were claiming two nationalities according to convenience. While the jury might have concluded that the vessel’s captain did not understand the first set of questions enabling the jury to disregard the inconsistent answers, the jury instruction provided the jury with that opportunity. The jury instruction was therefore not erroneous as unsupported by the evidence. THE DOCUMENT A vessel may be stateless under the Convention on the High Seas if it claims two or more nationalities according to convenience or if it is a vessel which is' not validly registered under the law of any nation. The Government sought to prove the latter alternative by the introduction of a certificate of non-registration of the vessel “Ocean Lady”. During the initial encounter with the Coast Guard, the vessel’s captain produced various documents, including a Honduran vessel registration certificate. The Coast Guard later informed the thirteen Appellants that the government of Honduras denied registration of the “Ocean Lady.” At trial, the Government sought to introduce a certificate from the General Commander of the Naval Force of Honduras concluding that the “Ocean Lady” was not registered in Honduras. Appellants objected to the document as inadmissible hearsay and contend on appeal that the district court’s admission of the document constitutes reversible error. The Government offered the document into evidence under Federal Rules of Evidence, Rules 803(10) and 902(3). Appellants first contend that Federal Rules of Evidence, Rule 803(8)(C) renders the document inadmissible against any defendants in a criminal proceeding because the document contains “factual findings resulting from an investigation made pursuant to authority granted by law.” Appellants rely primarily on United States v. Oates, 560 F.2d 45 (2nd Cir.1977) to support their position. In Oates, the Second Circuit concluded that the official report and accompanying worksheet of the United States Custom Service chemist who analyzed the white powdery substance seized from one of the defendants were hearsay and could not satisfy the public records and reports exception of Federal Rules of Evidence, Rule 803(8) because of subsection (C). The Oates court found that the chemist’s report was a report of “factual findings" }, { "docid": "23150636", "title": "", "text": "happen then? A. Well, Tammy started home, and she got to the door, or outside. And she came back and hollered for Russ. Q. Now, what did she holler at Russ? A. She said, \"come here, daddy,” or \"come to the door, daddy.” And he walked outside. Q. All right. What did she say then? A. I don't know what she said out there. Q. All right. And what is the next thing that you saw or heard happen? A. Russ came back and he was real upset. He said that there was two cars had just went over the hill, up the road, driving real slow, and he said he felt like it might be the feds. So he said I’m going to get my gun and go see what I can find out. X R. at 336 (emphasis added). . The government has suggested that we need not reach this issue under the concurrent sentence doctrine. See United States v. Montoya, 676 F.2d 428 (10th Cir.1982). However, the district court imposed a $50 special assessment on each count, in addition to the concurrent prison and parole terms, pursuant to 18 U.S.C. § 3013 (1988). The concurrent sentence doctrine, therefore, could not apply. See Ray v. United States, 481 U.S. 736, 107 S.Ct. 2093, 95 L.Ed.2d 693 (1987). . The defendants also attack the government’s evidence of lack of registration on two fronts. First, defendants argue that the certificates of non-registration, dated September 12, 1988, are not competent proof that the firearm in question was not registered to Russell or Mary Sullivan more than two months earlier, on July 20, 1988. They contend that a jury could not infer from that evidence that the firearm was not registered on the date of the alleged violation. Similar arguments were considered and rejected in United States v. Allen, 842 F.2d 1265, 1266 (11th Cir.1988), and United States v. Mayo, 705 F.2d 62, 76 n. 10 (2d Cir.1983). We agree with the reasoning expressed by both courts. Second, defendants object to the admissibility of the certificates on the ground that they were" }, { "docid": "17013176", "title": "", "text": "counsel withdrew the word “patented.” We have addressed all other claims. We are satisfied that in the light of the evidence in the record the argument was within the bounds of fairness and that it is not necessary to discuss the details of each reference in this opinion. 12. Claims of “Other Misconduct’ Defendant cites as misconduct three instances of government questions which, with their answers, he claims raised inferences which were unfair. He also asserts that an answer by an ATF agent, contradicted by another witness, was a “lie.” We have considered each claim and find nothing to be deemed reversible error. K. Claim op Insufficient Proof 1. Proof of Unlawful Making of Firearms Count 9 charged that on or about September 1, 1979, defendant “manufactured” a firearm (destructive device) in violation of 26 U.S.C. § 5861(f) (and the penalty provision, § 5871). Counts 10 through 16 made the same charge on the date of the other explosions. Section 5861(f) provides that it is unlawful to make a firearm in violation of the provisions of the chapter. Section 5821 requires a tax to be paid (by a stamp) upon the making of a firearm. Section 5822 prohibits any person from making a firearm unless he has done all of the following: filed an application, paid the prescribed tax, and “obtained the approval of the Secretary to make and register the firearm and the application form shows such approval.” Section 5841(c) provides that each maker shall, prior to making, obtain authorization and such authorization shall effect the registration. As evidence of violation, the government introduced a self-authenticating document (Fed.R.Evid. 902), an ATF certification that a diligent search of the National Firearms Register and Transfer Record (NFRTR) failed to disclose evidence that any firearm had been registered or acquired by defendant, or that he had made application to make firearms, or paid the making tax. It has been held that such certification is admissible proof of lack of registration under Rule 803(10), Fed.R. Evid., not admissible proof of failure to file an application or pay the tax, because filing occurs in" }, { "docid": "11746412", "title": "", "text": "that all three shared direct access to, and dominion and control over, the knapsack which contained the guns and that each of the three exercised some control over the guns, personally and through his confederates. Further, the government also presented evidence that each defendant brandished a gun on at least one occasion, from which the jury could properly infer that each defendant constructively possessed at least one gun throughout the course of the drug-distribution enterprise. Webber challenges the sufficiency of the government’s evidence that the guns were not registered. At trial on June 8, 1988, the government offered a certification dated March 8, 1988, that the firearms in question were not registered to Kerry Webber. On March 10, 1988, Webber had notified the Court and government that his real name was David Richardson. Webber argues that the record search shows nothing more than that the guns were not registered to a fictitious person named Kerry Webber, so the government has not offered sufficient evidence to show that the guns were not in fact registered to him. Although technically hearsay, evidence of the absence of a record is admissible under Fed.R.Evid. 803(1) provided that a diligent search for the record has proved fruitless. In United States v. Yakobov, 712 F.2d 20 (2d Cir.1983), the court held that the record search wherein the defendant’s name was egregiously misspelled was not diligent, as required by Fed.R. Evid. 803(10), and therefore constituted inadmissible hearsay. Because Webber did not object to the introduction of this record at trial, Yakobov is inapposite. Although the government’s search in this case may have been less than diligent, in light of the defendant’s failure to object to the introduction of the certificates, and given the ambiguity in the record as to Webber’s “real ” name, we cannot hold, sua sponte, that the District Court’s introduction of the evidence constituted plain error. Once the certificates were introduced, it was up to the jury to weigh their probative value. United States v. Carter, 801 F.2d 78, 85 (2d Cir.), cert. denied, 479 U.S. 1012, 107 S.Ct. 657, 93 L.Ed.2d 712 (1986)." }, { "docid": "23473619", "title": "", "text": "PER CURIAM: Aurelio Valdez-Maltos (Valdez) was convicted after a jury trial of being found unlawfully present in United States follow ing deportation, and he was sentenced to 77 months of imprisonment, three years of supervised release, and a $100 special assessment that was ordered remitted on motion of the Government. Valdez argues that the district court abused its discretion in overruling his hearsay objection to Border Patrol Agent Amador Carbajal’s testimony that there was no record of his application for permission to enter the United States. He contends that this testimony did not qualify under the Fed.R.Evid. 803(10) “absence of public record or entry” exception to the hearsay rule because Carbajal did not testify that he had performed a diligent search for the records and because there was no evidence that a diligent search had been performed. However, Carbajal need not have specifically testified that a “diligent search failed to disclose the record,” as long as the testimony and the relevant circumstances reflected an adequate search. See United States v. Wilson, 732 F.2d 404, 414 (5th Cir.1984). The evidence indicates that a diligent search of both of the names by which Valdez was known and their corresponding alien registration numbers was performed by Carbajal. Accordingly, the district court did not abuse its discretion in overruling Valdez’s hearsay objection. Valdez argues that the district court violated the Confrontation Clause by admitting, over his objection, copies of two warrants of deportation. He argues that these warrants constitute “testimonial” hearsay under Crawford v. Washington, 541 U.S. 36, 124 S.Ct. 1354, 158 L.Ed.2d 177 (2004), and were not admissible because there was no showing that the persons who completed the warrants were unavailable for trial and because those persons were not previously subject to cross-examination. In United States v. Rueda-Rivera, 396 F.3d 678, 680 (5th Cir.2005), this court stated generally that documents in a defendant’s immigration file are analogous to nontestimonial business records. In United States v. Quezada, 754 F.2d 1190, 1194-95 (5th Cir.1985), this court held that a warrant of deportation contained in an alien’s INS file properly was admitted under Fed.R.Evid. 803(8)(B)," }, { "docid": "4078383", "title": "", "text": "for concluding that the RICARDO was assimilated to a ship without nationality. The propriety of the court’s conclusion that the RICARDO was stateless thus depends upon whether the district court properly relied on its fourth factor, the Venezuelan Certificate showing that the vessel’s Venezuelan registration had expired in 1980. Despite its claim at the suppression hearing that it relied only on Fed.R.Evid. 803(8) as the basis for admissibility of the Certificate, the government here invokes both Rule 803(8) and Rule 803(10). We conclude that neither of these exceptions to the hearsay rule authorized the district court’s receipt of the document into evidence. Fed.R.Evid. 803(10) provides that the following category of evidence is not excluded by the hearsay rule: (10) Absence of public record or entry. To prove the absence of a record, report, statement, or data compilation, in any form, or the nonoccurrence or nonexistence of a matter of which a record, report, statement, or data compilation, in any form, was regularly made and preserved by a public office or agency, evidence in the form of a certification in accordance with rule 902, or testimony, that diligent search failed to disclose the record, report, statement, or data compilation, or entry. At the hearing the district court ruled that the Venezuelan Certificate did not qualify as an absence of public record, and we believe this ruling was correct. What is envisioned by Rule 803(10) is a statement that, after a diligent search of the records regularly kept by a public office or agency, a certain record, entry, report, etc., has not been found. United States v. Yakobov, 712 F.2d 20, 26-27 (2d Cir.1983). From such a statement the factfinder may infer that an event that normally would be reflected in the public record did not occur. Instead of a certification of an absence of record, the Venezuelan Certificate is principally a potpourri of descriptions of existing records (e.g., confirming that the RICARDO had been registered in Venezuela), speculation (stating that the RICARDO “evidently sailed clandestinely from Venequelan [sic] port”), description of official action (“the Maritime Authority has found grounds for the" }, { "docid": "6320193", "title": "", "text": "she had custody and control of the National Firearms Registration and Transfer Record concerning the registration, importation, transfer and making of firearms and of approved applications to make and register firearms. In this report she certified that after a diligent search she found no evidence that the firearm described in the indictment had been registered to or lawfully acquired by Combs and no application by Combs to make and register a firearm. The report by Davis was not under seal, so the government had attached to the report a document under seal executed by Gary Schaible, Chief of the National Firearms Act Branch of the Bureau of Alcohol, Tobacco, and Firearms. In that document, Schaible stated that Davis had proper custody and control of the Firearms Registration and Transfer Record, that he was familiar with her signature, and that the signature on the report appeared to be true. This report was properly admitted under Rules 803(10) and 902(2) of the Federal Rules of Evidence. See United States v. Beason, 690 F.2d 439, 443-45 & n. 5 (5th Cir.1982), cert. denied, 459 U.S. 1177, 103 S.Ct. 828, 74 L.Ed.2d 1023 (1983); United States v. Stout, 667 F.2d 1347, 1352 (11th Cir.1982). Under Rule 803(10), the following is not excluded by the hearsay rule: Absence of public record of entry. To prove the absence of a record, report, statement, or data compilation, in any form, or the nonoccurrence or nonexistence of a matter of which a record, report, statement, or data compilation, in any form, was regularly made and preserved by a public office or agency, evidence in the form of a certification in accordance with Rule 902, or testimony that diligent search failed to disclose the record, report, statement, or data compilation, or entry. Rule 902 provides: Extrinsic evidence of authenticity as a condition precedent to admissibility is not required with respect to the following: (1) Domestic public documents under seal. A document bearing a seal purporting to be that of the United States, or of any State ... or of a political subdivision, department, office, or agency thereof, and a" }, { "docid": "11746413", "title": "", "text": "him. Although technically hearsay, evidence of the absence of a record is admissible under Fed.R.Evid. 803(1) provided that a diligent search for the record has proved fruitless. In United States v. Yakobov, 712 F.2d 20 (2d Cir.1983), the court held that the record search wherein the defendant’s name was egregiously misspelled was not diligent, as required by Fed.R. Evid. 803(10), and therefore constituted inadmissible hearsay. Because Webber did not object to the introduction of this record at trial, Yakobov is inapposite. Although the government’s search in this case may have been less than diligent, in light of the defendant’s failure to object to the introduction of the certificates, and given the ambiguity in the record as to Webber’s “real ” name, we cannot hold, sua sponte, that the District Court’s introduction of the evidence constituted plain error. Once the certificates were introduced, it was up to the jury to weigh their probative value. United States v. Carter, 801 F.2d 78, 85 (2d Cir.), cert. denied, 479 U.S. 1012, 107 S.Ct. 657, 93 L.Ed.2d 712 (1986). Web-ber was free to present his argument to the jury and offer evidence that his real name was something other than “Kerry Web-ber.” In fact, counsel’s assertions aside, the record contains little evidence from which the jury could conclude that the defendant’s name was anything other than Kerry Webber. From the evidence the jury could properly conclude beyond a reasonable doubt that if none of the guns was registered to the name “Kerry Webber,” then none of the guns was registered to the defendant. IV. Other Claims Appellants’ other challenges merit only brief mention. Webber contends that due to the government’s inadvertent belated disclosure of certain evidence, in violation of Brady v. Maryland, 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963), he was entitled to a mistrial. However, after the evidence was discovered and the possibility of a mistrial was discussed, Webber himself specifically stated, on the record, that he did not wish to seek a mistrial (Tr. 1422). We refuse to hold that the District Court erred by not, on its own" }, { "docid": "2145348", "title": "", "text": "of the Treasury or an authorized delegate shall maintain a central registry of all firearms not in the possession or under the control of the United States which come within the purview of 26 U.S.C., Chapter 53. That central registry is known as the National Firearms Registration and Transfer Record and is maintained at the Bureau of Alcohol, Tobacco and Firearms in Washington, D.C. This is to certify that I have custody and control of the said National Firearms Registration and Transfer Record pursuant to a delegation of authority by the Secretary of the Treasury. I further certify that, after diligent search of the said Record, I found no evidence that the firearm or firearms described below are registered to, or have been acquired by lawful manufacturer, importation, or making by, or transfer to SIDNEY ALLEN aka SIDNEY ALLEN, JR. Gov.Ex. 18. The firearm described in the certificate was the destructive device at issue. Allen argues that since the certificate uses the present tense (“are”) instead of the present and the present perfect tense (“are and never have been”), the certificate does not prove whether or not Mr. Allen had registered a firearm as of October 7, 1984, the date of the alleged firearms violation. The district court accepted this argument. In reaching this conclusion, the district court expressly rejected the reasoning of the Second Circuit in United States v. Mayo, 705 F.2d 62, 76 n. 10 (2d Cir.1983). The Second Circuit examined similar language in a BATF certificate, and concluded that a jury could have reasonably inferred that the BATF examiner did not limit her examination of the record to those weapons registered on the date of the certificate. We agree with the Second Circuit’s interpretation of the BATF certificate language. The standard for review of the jury’s verdict requires that we view all reasonable inferences in the light most favorable to the government. Glasser v. United States, 315 U.S. 60, 80, 62 S.Ct. 457, 469, 86 L.Ed. 680 (1942); United States v. Bell, 678 F.2d 547, 549 (5th Cir.1982) (en banc) . We find that a reasonable inference" }, { "docid": "4078375", "title": "", "text": "has found grounds for the expiration of its registration .... ” The Certificate concluded as follows: Therefore, the motor boat “Ricardo”, originally registered in the Harbor Master’s Office of Las Piedras, in view of the expiration of its registration, as of May 21,1980, could not invoke the Venezuelan nationality to protect its status under any circumstance, particularly in situations involving a crime or infraction. Reinstatement to its status of Venezuelan vessel after the said date (May 21, 1980) would have required the renewal of its documents, after justifying its absence and receiving a favorable decision from the Venezuelan authorities, something that did not ever take place. Defendants objected to the introduction of the Certificate under Fed.R.Evid. 803(10), which permits receipt of an appropriate certification of the absence of a public record; their argument was cut short, however, by the government’s disclaimer of reliance on Rule 803(10) and its invocation instead of Rule 803(8), which governs existing public records. The court agreed that the Certificate did not show an absence of a record, and it admitted the document into evidence over defendants’ objections that admission was not authorized by Rule 803(8) and would violate their rights of confrontation under the Sixth Amendment to the Constitution. In a ruling announced on October 20, 1982, the court stated that it had considered the Venezuelan Certificate and confirmed its September 30, 1982 finding that the RICARDO was a stateless vessel at the time of its seizure. Accordingly, the court adhered to its decision denying defendants’ motion to dismiss the indictment for lack of jurisdiction. 2. The Denial of the Suppression Motions Following the evidentiary hearing, the district court denied defendants’ motions to suppress the marijuana seized from the RICARDO. The court ruled that, in all the circumstances set forth above, the Coast Guard’s stopping, boarding, and search of the RICARDO were based upon a reasonable suspicion that the vessel was engaged in narcotics smuggling. In addition, the court held that defendants had voluntarily consented to the stopping, boarding, and search. 3. The Conditional Pleas of Guilty Following these rulings, each defendant entered a conditional" }, { "docid": "12508007", "title": "", "text": "Civil Procedure, as an official record. A similar proffer was made by the government in another firearms prosecution under Title 26, U.S.C., Section 5861, United States v. Thompson, 3 Cir. 1971, 420 F.2d 536. Objection was there likewise made to admission of the evidence on Sixth Amendment grounds of right of confrontation. The Third Circuit, speaking through Judge Maris, held: “The defendant contends that the admission, of this document violated his right of confrontation under the Sixth Amendment. It is true that confrontation of a witness so that he may be cross-examined is a matter of right in a criminal prosecution, but it has long been held that official registers or records kept by persons in public office in which they are required, either by statute or by the nature of their office, to write down particular transactions occurring in the course of their public duties, are admissible, without calling the persons who made them, as a reasonable exception to the hearsay rule. And it has also been held that an affidavit of an officer having custody of official records as to lack of a certain record after diligent search, is admissible under Rule 27 to show the absence of any record or entry of a relevant act, transaction, or occurrence, and is not violative of the defendant’s constitutional right of confrontation. The trial judge has the duty to determine whether such documents are constitutionally admissible under the Sixth Amendment guarantee of confrontation. In this case the trial judge decided that the certificate of Benedict was admissible under Criminal Rule 27. Under the circumstanc es, we are satisfied that its admission was not error.” 420 F.2d at 545. We agree with the Third Circuit and hold that the appellant’s Sixth Amendment right of confrontation was not violated by the trial judge when he admitted Government Exhibit Number 4 into evidence. Affirmed. . Section 5861(d), Title 26, United States Code, reads: It shall be unlawful for any person to receive or possess a firearm which is not registered to him in the National Firearms and Registration Record. Section 5845(a), Title 26," }, { "docid": "23150637", "title": "", "text": "special assessment on each count, in addition to the concurrent prison and parole terms, pursuant to 18 U.S.C. § 3013 (1988). The concurrent sentence doctrine, therefore, could not apply. See Ray v. United States, 481 U.S. 736, 107 S.Ct. 2093, 95 L.Ed.2d 693 (1987). . The defendants also attack the government’s evidence of lack of registration on two fronts. First, defendants argue that the certificates of non-registration, dated September 12, 1988, are not competent proof that the firearm in question was not registered to Russell or Mary Sullivan more than two months earlier, on July 20, 1988. They contend that a jury could not infer from that evidence that the firearm was not registered on the date of the alleged violation. Similar arguments were considered and rejected in United States v. Allen, 842 F.2d 1265, 1266 (11th Cir.1988), and United States v. Mayo, 705 F.2d 62, 76 n. 10 (2d Cir.1983). We agree with the reasoning expressed by both courts. Second, defendants object to the admissibility of the certificates on the ground that they were hearsay and that the government did not comply with its discovery obligations under Rule 16 of the Federal Rules of Criminal Procedure. We disagree. Public records are admissible as an exception to the hearsay rule, Fed.R.Evid. 803(8), and the government may prove the absence of a record of proper registration with a certified copy of a public record, such as the one introduced here, certifying that diligent search failed to disclose evidence of the registration in question. See Fed.R. of Evid. 803(10), 902(4). Finally, we reject the defendant's argument that the government violated Rule 16 because it furnished defense counsel with a photocopy of each certification of non-registration before they were signed by the certifying officer or affixed with the requisite seal. Although it would have been preferable to furnish defendants with copies of signed certificates bearing the requisite seal, the government’s failure to do so does not constitute a violation of Rule 16 and did not preclude their introduction into evidence. .Donald Wayne Long testified that Jimmy Wright informed him that Russell Sullivan and" }, { "docid": "23150638", "title": "", "text": "hearsay and that the government did not comply with its discovery obligations under Rule 16 of the Federal Rules of Criminal Procedure. We disagree. Public records are admissible as an exception to the hearsay rule, Fed.R.Evid. 803(8), and the government may prove the absence of a record of proper registration with a certified copy of a public record, such as the one introduced here, certifying that diligent search failed to disclose evidence of the registration in question. See Fed.R. of Evid. 803(10), 902(4). Finally, we reject the defendant's argument that the government violated Rule 16 because it furnished defense counsel with a photocopy of each certification of non-registration before they were signed by the certifying officer or affixed with the requisite seal. Although it would have been preferable to furnish defendants with copies of signed certificates bearing the requisite seal, the government’s failure to do so does not constitute a violation of Rule 16 and did not preclude their introduction into evidence. .Donald Wayne Long testified that Jimmy Wright informed him that Russell Sullivan and Wright were armed at the laboratory site. XVII R. at 2118-20. Steve Howell testified that at the laboratory, Howell asked Eugene Fisher and “Whiskers” (Jimmy Wright) if they had guns. Fisher said \"yes” and Wright \"patted on his back pocket.” XI R. at 585. Evelyn Rogers testified that while she was at the Russell Sullivan residence in July of 1988, Sullivan telephoned Steve Brown to come up because he thought \"there might be trouble.” X R. at 341-42. Sullivan left to find out if the “feds\" were there, or just someone else. X R. at 341. Sullivan was armed with a rifle and Steve with a small handgun. Id. at 341-44. Moreover, during the raid on the laboratory site on July 20, 1988, Jimmy Wright, Eugene Fisher and Russell Sullivan were arrested in the trailer that served as the laboratory. XII R. at 1006. During that raid, Senior Agent Duncan seized three guns from the trailer. XII R. at 780. Tammy Sullivan Fisher was not convicted on Count 4 and, therefore, there is no question" } ]

[ { "docid": "21866013", "title": "", "text": "as amended; or (2) the date of denial of a protest by operation of law pursuant to the provisions of section 515(b) of the Tariff Act of 1930, as amended. Of course, when an action is commenced by mailing a summons in the manner prescribed by rule 3.2(b), the operative fact is the date of mailing. For the purpose of commencing an action, a summons is deemed filed as of the date of mailing, rather than the date of receipt, if the specified method of mailing is utilized, and plaintiff shows by satisfactory proof that the conditions of mailing imposed by the rule have been satisfied. See Texas Mex Brick & Import Co. v. United States, 371 F. Supp. 579, 72 Cust. Ct. 291, C.R.D. 74-2 (1974); Modern Clothing, Inc. v. United States, 73 Cust. Ct. 233, C.R.D. 74-10 (1974). As this court held in the Fairfield Gloves case, 77 Cust. Ct. 166, C.R.D. 76-10 (1976), aff’d, United States v. Fairfield Gloves, supra, a date-stamped receipt for certified mail is, as in this case, satisfactory proof of compliance within the requirements of rule 3.2(b). See also Richardson v. Brown, 443 F. 2d 926, 928 (10th Cir. 1971). Hence, since the summons in this action was deemed to have been filed on February 12, 1979, within the period prescribed by 28 U.S.C. 2631 (a)(1), it has been timely filed. PAYMENT BY PROMISSORY NOTE The facts pertaining to the payment of duties also are not in dis pute. This action challenges the denial of seven protests (Nos. 1401-7-000135 through and including 1401-7-000141). The duties owed on the entry covered by protest No. 1401-7-000141 were timely and fully paid. As to the duties owed on the entries covered by the six remaining protests, plaintiff, on or about October 3, 1978, executed and delivered a promissory note in the amount of the duties owed. The appropriate Customs official “accepted” the note and marked as “canceled” the invoices for the remaining entries. The issue here is whether the delivery and acceptance of the promis - sory note satisfies the jurisdictional prerequisite of payment of all" } ]

[ { "docid": "18674007", "title": "", "text": "the entry covered by the action. In the current case, however, plaintiff concedes that the special circumstances existing in Dynasty relating to the offset to the duty liability are absent here. Plaintiff next insists that under section 2637(a) payment of liquidated duties is merely a condition precedent to suit which may be satisfied at any time after the action is commenced and that the statute imposes no jurisdictional requirement. This argument is refuted by the express language of the statute. Indeed, section 2637(a) is clear and unambiguous that an action may be brought \"only if all liquidated duties, charges or exactions have been paid at the time the action is commenced” (emphasis added). Plaintiff requests that the court ignore the express language of the statute and exercise its equity powers to make an exception for plaintiff under the circumstances of the present case. Fundamentally, of course, the United States is immune from suit except in accordance with the terms and conditions under which it consents to be sued. NEC Corporation v. United States, 806 F.2d 247 (Fed. Cir. 1986). In section 2637(a), Congress manifestly expressed its intent that payment of liquidated duties at the time the action is commenced is a prerequisite to the filing of a summons in a action brought to contest the denial of a protest. And \"[t]he terms of the government’s consent to be sued in any particular court define that court’s jurisdiction to entertain the suit.” Id., at 249. Further, \"[conditions upon which the government consents to be sued must be strictly observed and are not subject to implied exceptions.” Ibid. Consequently, the court cannot entertain jurisdiction in this action based upon the exercise of discretion or its equity powers. In short, plaintiffs contention that noncompliance with section 2637(a) \"may be subject to excuse and remedied upon equitable principles” (NEC Corporation, 806 F.2d at 249) must be rejected under the facts presented here. We turn to plaintiffs contention that the government’s failure to investigate plaintiffs payment of liquidated duties and raise the jurisdictional issue until after the entry of judgment on March 5, 1987 precludes" }, { "docid": "16602874", "title": "", "text": "that, concerning the five entries at issue here, liquidated duties were not paid to Customs until February 14,1992. Melco filed an amended complaint on April 23,1992, including an allegation that “all liquidated duties in the Protests and Entries outlined in the Summons and Amended Summons have been paid on or before February 14,1992.” Brief in Opposition to Defendant’s Motion to Dismiss at 1. Discussion Defendant has moved under USCIT R. 12(b) to dismiss the action with regard to the entries for which liquidated duties were not paid prior to the filing of the summons and the original complaint. Defendant argues that under section 2637(a) this court lacks jurisdiction whenever liquidated duties have not been paid at the time the action is com menced. Melco counters that under USCIT R. 15(c) the filing of an amended complaint after a late payment of duties has the effect of curing the failure to pay those duties in a timely manner because the claims contained in an amended complaint relate back to the commencement of the action. Since those claims involve an allegation of compliance with section 2637(a), Melco asserts that the action should be treated as though the duties had been timely paid. However, the court agrees with defendant that the jurisdictional prerequisite of section 2637(a) cannot be satisfied by the late payment of duties, followed by the filing of an amended complaint. An action to contest a denial of a protest is deemed commenced on the date when the summons is filed. USCIT R. 3; Penrod Drilling Co. v. United States, 13 CIT 1005, 1007, 727 F. Supp. 1463, 1465 (1989), aff’d, 925 F.2d 406 (Fed. Cir. 1991). The payment of all liquidated duties, charges or exactions at the time the action is commenced is a condition precedent that must be satisfied before invoking the jurisdiction of this court. Id. See also Glamorise Foundations, Inc., v. United States, 11 CIT 394, 396-97, 661 F. Supp. 630, 632 (1987); Nature’s Farm Products, Inc. v. United States, 10 CIT 676, 648 F. Supp. 6 (1986), aff’d, 5 Fed. Cir. (T) 103, 819 F.2d 1127" }, { "docid": "13669520", "title": "", "text": "406 (1991); United States v. Boe, 64 C.C.P.A. 11, 16, 543 F.2d 151, 155 (1976). This action was commenced on August 30, 1995, when the summons was filed. USCIT R. 3(a); Penrod, 13 CIT at 1007, 727 F.Supp. at 1465. Dazzle made the last payment on its nine delinquent duty bills on Sept. 27, 1995, almost a month after this date. Thus, it is undisputed that payment for all duties, charges or exactions was not made at the time of commencing this action. It is immaterial if Dazzle’s payment discharged interest accrued on the bills because of the surety’s late payment, since section 2637(a)’s “terms charges or exactions include the assessment of interest on the late payment of liquidated duties.” Syva Co. v. United States, 12 CIT 199, 205, 681 F.Supp. 885, 890 (1988). Consequently, failure to pay such interest constitutes an omission, which is “fatal” and deprives the court of jurisdiction. 12 CIT at 199, 681 F.Supp. at 886. Despite the clear statutory mandate and numerous decisions which have applied strictly section 2637(a)’s requirement, Plaintiff maintains that the Court should assume jurisdiction over this case on a theory of equitable estoppel. However, it is well settled that in a suit against the government, jurisdictional requirements cannot be waived or subject to excuse or remedy on the basis of equitable principles. Mitsubishi Electronics America, Inc. v. United States, 18 CIT 929, 932, 865 F.Supp. 877, 880 (1994). Such requirements must be strictly construed since a court has no power to relax the statutory preconditions for waiver of sovereign immunity. Halperin Shipping Co., Inc. v. United States, 14 CIT 438, 443, 742 F.Supp. 1163, 1168 (1990). See also United States v. Sherwood, 312 U.S. 584, 61 S.Ct. 767, 85 L.Ed. 1058 (1941); United States v. Mitchell, 445 U.S. 535, 100 S.Ct. 1349, 63 L.Ed.2d 607 (1980). As this Court has held: Fundamentally, of course, the United States is immune from suit except in accordance with the terms and conditions under which it consents to be sued. In section 2637(a), Congress manifestly expressed its intent that payment of liquidated duties at the" }, { "docid": "16670697", "title": "", "text": "of Amended Final Determination of Sales at Less Than Fair Value and Antidumping Duty Order: Certain Softwood Lumber Products From Canada, 67 Fed. Reg. 36,068 (May 22, 2002); Notice of Amended Final Affirmative Countervailing Duty Determination and Notice of Countervailing Duty Order: Certain Softwood Lumber Products From Canada, 67 Fed. Reg. 36,070 (May 22, 2002). Plaintiff’s summons and complaint were filed on October 25, 2002, more than 4 months after the 31-day deadline imposed under the statute had passed. Under § 1516a(a)(5)(A), Plaintiff’s filing was untimely and thus, this Court does not have jurisdiction to hear Plaintiff’s claim. Plaintiff’s contention that the timeliness requirements under § 1516a are mere technicalities and that a showing of prejudice is necessary to dismiss this case are without merit. As the Federal Circuit has held, § 1516 “specifies the terms and conditions upon which the United States has waived its sovereign immunity in consenting to be sued in the Court of International Trade .. . [and] those limitations must be strictly observed and are not subject to implied exceptions.” Georgetown Steel Corp. v. United States, 801 F.2d 1308, 1312 (Fed. Cir. 1986). Therefore, “[i]f a litigant fails to comply with the terms upon which the United States has consented to be sued, the court has no jurisdiction to entertain the suit.” Id. (citations omitted). Here, Plaintiff failed to comply with the timeliness requirements under the statute. Therefore, this Court has no jurisdiction to entertain Plaintiff’s suit. 4. Plaintiff lacks standing to bring this action. Defendants contend that even if Plaintiff had commenced an appeal of the ITC’s or Commerce’s determinations on a timely basis, Plaintiff still lacks standing to bring such a claim because, as a shareholder, Plaintiff does not fall into any of the categories of “interested party” listed in 19 U.S.C. § 1677(9). (ITC Br. at 4 n.10; Commerce Br. at 11.) Plaintiff contends that this Court should follow the example set by other nations and allow Plaintiff, as an individual, to bring suit in this Court. (Pl.’s Br. at 5-7.) Title 19 U.S.C. § 1516a(d) states that “[a]ny interested part who" }, { "docid": "6270174", "title": "", "text": "Chemicals, Inc. v. United States, 57 Cust.Ct. 541, 543, R.D. 11195 (1966), aff'd 59 Cust.Ct. 834, A.R.D. 228 (1967), aff'd 56 CCPA 47, C.A.D. 952, 420 F.2d 763 (1969)). Therefore, in fulfilling its inherent duty to determine the jurisdictional propriety of the action, pursuant to USCIT R. 12(h)(3), the Court must address defendant’s motion to dismiss before any disposition on the merits. See e.g., Bethlehem Steel Corp. v. United States, 6 CIT 164, 165, 571 F.Supp. 1265, 1266-67 (1983); Feudor, Inc. v. United States, 79 Cust.Ct. 179, 181, C.R.D. 77-13, 442 F.Supp. 544, 546 (1977) (on a motion to dismiss for lack of jurisdiction, it is inappropriate to resolve an inquiry addressed to the merits of the action). The government’s motion to dismiss is premised on the failure of plaintiff to satisfy the requirements of 28 U.S.C. § 2637(a) (1982), which sets forth that an action may be commenced in this court only if “all liquidated duties, charges, or exac-tions have been paid at the time the action is commenced.” It is well settled that this court’s jurisdiction to entertain a challenge such as plaintiff’s (under 28 U.S.C. § 1581(a)) is conditioned upon the payment of liquidated duties, charges, and exactions. United States v. Boe, 64 CCPA 11, 18, C.A.D. 1177, 543 F.2d 151, 156 (1976); American Air Parcel Forwarding Co., Ltd. v. United States, 6 CIT 146, 150, 573 F.Supp. 117, 120 (1983). The terms conferring jurisdiction are mandatory and the statute does not afford an opportunity to exercise discretion in this matter. Boe, 64 CCPA at 16, 543 F.2d at 155; see NEC Corp. v. United States, 806 F.2d 247, 249 (Fed.Cir.1986). The question as to whether this jurisdictional hurdle was satisfied arises as a result of the 1984 enactment of subsection (c) to 19 U.S.C. § 1505, which provides: Duties determined to be due upon liquidation or reliquidation shall be due 15 days after the date of that liquidation or reliquidation, and unless payment of the duties is received by the appropriate customs officer within 30 days after that date, shall be considered delinquent and bear interest" }, { "docid": "17656881", "title": "", "text": "as powerless to impose mandatory procedural requirements, such a view of course goes beyond the holding of Georgetown Steel and appears difficult to square with Congress’ repeated references to the CIT Rules in the jurisdictional statutes. In NEC Corp. v. United States, 9 CIT 557, 622 F.Supp. 1086 (1985), rehearing denied, 10 CIT -, 628 F.Supp. 976 (1986), this Court dismissed an action brought under 19 U.S.C. § 1516a(a)(2) because the plaintiff did not satisfy the requirements for filing its summons under CIT Rule 5(g) until after the thirty-day time limit elapsed. The Federal Circuit affirmed, stating: The summons is to be filed in a manner prescribed by the Rules of the Court of International Trade. 19 U.S.C. § 1516a(a)(l) [sic]. The rules prescribing the manner and method for filing a summons constitute terms and conditions upon which the United States waives its sovereign immunity. Suit is barred unless the summons is filed in conformity with these rules. 28 U.S.C. § 2636(c). Contrary to the NEC assertion that deviation from the Rules of the Court of International Trade may be subject to excuse and remedied upon equitable principles, the requirement of a properly and timely filed summons is a requisite of jurisdiction which cannot be waived____ The terms of the government’s consent to be sued in any particular court define that court’s jurisdiction to entertain the suit____ Conditions upon which the government consents to be sued must be strictly observed and are not subject to implied exceptions____ 806 F.2d 247, 248-49 (Fed.Cir.1986) (citations omitted), denial of reh’g en banc vacated, Order (Jan. 13, 1987). This language, at the very least, casts doubt on the proposition that formal requirements imposed by court rule cannot be considered mandatory. Samsung and the defendant point out, however, that the rule violation which defeated the filing of the summons in NEC — the lack of “proper postage” required under Rule 5(g) — is a requirement specified in the statute that authorized the court to promulgate the rule, 28 U.S.C. § 2632(d). They suggest, generally, that only formal requirements explicitly imposed by statute may be viewed" }, { "docid": "18674008", "title": "", "text": "247 (Fed. Cir. 1986). In section 2637(a), Congress manifestly expressed its intent that payment of liquidated duties at the time the action is commenced is a prerequisite to the filing of a summons in a action brought to contest the denial of a protest. And \"[t]he terms of the government’s consent to be sued in any particular court define that court’s jurisdiction to entertain the suit.” Id., at 249. Further, \"[conditions upon which the government consents to be sued must be strictly observed and are not subject to implied exceptions.” Ibid. Consequently, the court cannot entertain jurisdiction in this action based upon the exercise of discretion or its equity powers. In short, plaintiffs contention that noncompliance with section 2637(a) \"may be subject to excuse and remedied upon equitable principles” (NEC Corporation, 806 F.2d at 249) must be rejected under the facts presented here. We turn to plaintiffs contention that the government’s failure to investigate plaintiffs payment of liquidated duties and raise the jurisdictional issue until after the entry of judgment on March 5, 1987 precludes defendant from any relief from the judgment. While the court has no doubt that the jurisdictional impediment to plaintiffs action raised by defendant at this late juncture could have been more effectively investigated by Customs personnel and more timely asserted by defendant in this action, it is fundamental that a requisite of jurisdiction cannot be waived. NEC Corporation, 806 F.2d at 249, citing Georgetown Steel v. United States, 801 F.2d 1308, 1312 (Fed. Cir. 1986). Moreover, a motion to vacate a judgment for lack of jurisdiction \"may be brought at any time after final judgment.” McLearn, 660 F.2d at 848. In BASF Colors & Chemicals, Inc. v. United States, 57 Cust. Ct. 541, R.D. 11195 (1966), aff’d, 59 Cust. Ct. 834, A.R.D. 228 (1967), aff’d 56 CCPA 47, 420 F.2d 763 (1969), the court stressed that questions of jurisdiction may be raised at any time \"for clearly a decision of a court without jurisdiction is a nullity”. 57 Cust. Ct. at 543. In summary, the undisputed facts demonstrate that while plaintiff made a good faith" }, { "docid": "22068585", "title": "", "text": "summons, plaintiff failed to fulfill an explicit condition under Rule 5(g) for date-of-mailing filing.” NEC Corp. v. United States, 622 F.Supp. 1086 (CIT 1985), reh’g denied, 628 F.Supp. 976 (1986). In Jernberg Forgings Co. v. United States, 7 CIT 62 (1984), vacated on other grounds, 8 CIT 245 (1984), the Court of International Trade held that where the summons had been timely filed but the complaint had been mailed with insufficient postage and therefore not filed within 30 days of the summons, the complaint was untimely filed. The court, however, authorized the untimely filing on the ground that only the 30-day filing requirement for the summons was jurisdictional. As explained below, we disagree with the latter ruling. We conclude that the principle the Court of International Trade applied in NEC is equally applicable in the present case. That principle requires the conclusion that Georgetown Steel’s complaint was not filed until July 6, 1984, which was the first time Georgetown Steel mailed the complaint, “with the proper postage affixed.” This was 43 days after the summons was filed. The filing of the complaint therefore did not satisfy the requirement in section 1516a(a)(2)(A) that to “commence an action” in the Court of International Trade challenging a negative countervailing duty determination, the complaint must be filed “within thirty days [after]” “filing a summons.” Since section 1516a(a)(2)(A) specifies the terms and conditions upon which the United States has waived its sovereign immunity in consenting to be sued in the Court of International Trade, those limitations must be strictly observed and are not subject to implied exceptions. Lehman v. Nakshian, 453 U.S. 156, 161, 101 S.Ct. 2698, 2701, 69 L.Ed.2d 548 (1981). If a litigant fails to comply with the terms upon which the United States has consented to be sued, the court has no “jurisdiction to entertain the suit.” United States v. Mitchell, 445 U.S. 535, 538, 100 S.Ct. 1349, 1351, 63 L.Ed.2d 607, (quoting United States v. Sherwood, 312 U.S. 584, 586, 61 S.Ct. 767, 769, 85 L.Ed. 1058 (1941)). C. Georgetown Steel contends, however, that the only jurisdictional prerequisite for invoking the" }, { "docid": "15912141", "title": "", "text": "at 68. In Kincak v. Heckler, 596 F.Supp. 1162 (W.D.Pa.1984), the court denied a government motion to alter the judgment on the ground that it had been served three days beyond the mandatory time limit of FRCivP 59(e). Quite properly, the defendant itself has often successfully opposed requested relief or obtained dismissal of actions where adversaries have failed to meet time requirements. E.g., United States v. Torch Manufacturing Co., 509 F.2d 1187, 62 C.C.P.A. 41 (1975); Former Employees of ITT v. Secretary of Labor, 12 CIT -, Slip Op. 88-121 (Sept. 12, 1988) [available on WEST-LAW, 1988 WL 95919]; Rhone Poulenc, Inc. v. United States, 12 CIT -, 694 F.Supp. 1579 (1988); Nature’s Farm Products, Inc. v. United States, 10 CIT 676, 648 F.Supp. 6 (1986), aff'd, 819 F.2d 1127 (Fed.Cir.1987). In Georgetown Steel Corporation v. United States, 801 F.2d 1308 (Fed.Cir.1986), the plaintiff had sent a complaint to the Clerk of this Court by certified mail within 30 days of the filing of the summons, but the Postal Service returned it for insufficient postage. Upon return, the plaintiff remailed the complaint accompanied by a motion for leave to file it out of time, which was opposed by the government. On appeal, the court held that the plaintiff had not met the “plain and unambiguous” requirements for commencing an action, that is, it had “ ‘failed to fulfill an explicit condition of mailing filing.’ ” 801 F.2d at 1311, quoting from NEC Corp. v. United States, 9 CIT 557, 622 F.Supp. 1086 (1985), reh’g denied, 10 CIT -, 628 F.Supp. 976 (1986). ... [T]he terms and conditions upon which the United States has waived its sovereign immunity in consenting to be sued in the Court of International Trade ... must be strictly observed and are not subject to implied exceptions. Lehman v. Nakshian, 453 U.S. 156, 161 [101 S.Ct. 2698, 2702, 69 L.Ed.2d 548] (1981). If a litigant fails to comply with the terms upon which the United States has consented to be sued, the court has no “jurisdiction to entertain the the suit.” There being no jurisdiction here, the" }, { "docid": "17401171", "title": "", "text": "candidly acknowledges that it has not paid the duties on the 13 entries as required by Section 2637(a), but bids the Court to take jurisdiction over this case nonetheless. Compl. ¶¶ 21-22, 29. The Court cannot oblige. The Court of Appeals for the Federal Circuit (“CAFC”) has held that the “conditions upon which the government consents to be sued must be strictly observed and are not subject to implied exceptions.” NEC Corp. v. United States, 806 F.2d 247, 249 (Fed.Cir.1986). Because 28 U.S.C. § 2637(a) operates as just such a condition upon the waiver of sovereign immunity, it must be strictly construed in favor of the government. Cf. AutoAlli ance Int’l, Inc. v. United States, 357 F.3d 1290, 1293 (Fed.Cir.2004) (finding that a related provision, 28 U.S.C. § 2636(a)(1), which requires litigation contesting denied protests to be commenced within 180 days of denial, “operates as a waiver of sovereign immunity [that] this court must strictly construe ... in favor of the sovereign”) (internal quotation and brackets omitted). Plaintiffs failure to pay “all liquidated duties, charges, or exactions ... related to each entry included in the denied protest” prior to commencing this action means that this Court does not have jurisdiction under 28 U.S.C. § 1581(a) to hear any of Plaintiffs claims. See 28 U.S.C. § 2637(a); see also Georgetown Steel Corp. v. United States, 801 F.2d 1308, 1312 (Fed.Cir.1986) (“If a litigant fails to comply with the terms upon which the United States has consented to be sued, the court has no jurisdiction to entertain the suit.”) (internal quotation omitted). Apparently anticipating this result, Plaintiff urges that “[i]f the Court concludes that jurisdiction is lacking under Section 1581(a) because ICP did not prepay the $28 million in duties at the higher rate, then this Court has jurisdiction under 28 U.S.C. § 1581(i)(4) because ICP does not have a remedy under Section 1581(a).” Compl. ¶ 21. The law does not permit the outcome Plaintiff seeks; the Plaintiff may not do indirectly what it is prohibited to do directly. The CAFC has previously invalidated attempts to avoid complying with the prerequisites for" }, { "docid": "15736098", "title": "", "text": "exalt form over substance to require that a summons be refiled with a complaint, when such a summons had already been filed, properly bringing the parties before the court and advising all of the subject matter of the litigation, particularly where both were filed within a short period which was well within the two year period prescribed by the statute of limitations. Plaintiffs Reply, pp. 4-5. No case law is cited for this proposition, but there is legionary precedent that waiver of sovereign immunity is always to be strictly construed. E.g., Lehman v. Nakshian, 453 U.S. 156, 160-61, 101 S.Ct. 2698, 69 L.Ed.2d 548 (1981), and cases therein. And the waiver implicated by this action required that it “be commenced by filing concurrently with the clerk of the court a summons and complaint”. 28 U.S.C. § 2632(a). See CIT Rule 3(a)(3). Clearly, the plaintiff could have done that but chose not to, which means that this court as a matter of law did not become properly possessed of subject-matter jurisdiction. See, e.g., NEC Corporation v. United States, 806 F.2d 247 (Fed.Cir.1986) (Court of Int’l Trade jurisdiction not subject to equitable exceptions); Georgetown Steel Corp. v. United States, 801 F.2d 1308 (Fed.Cir.1986)(Court of Int’l Trade had no jurisdiction over complaint filed 43 days after timely filing of summons); Nature’s Farm Products, Inc. v. United States, 10 CIT 676, 648 F.Supp. 6 (1986), aff'd, 819 F.2d 1127 (Fed.Cir.1987)(reeeipt by Customs of duties owed after filing of summons undermined court’s jurisdiction); Washington Red Raspberry Comm’n v. United States, 11 CIT 173, 657 F.Supp. 537 (1987) (court lacked jurisdiction over cross-claim sought to be asserted beyond time to commence direct action against ITA); MBL (USA) Corp. v. United States, 14 CIT 161, 733 F.Supp. 379 (1990)(court lacked jurisdiction over claims sought to be asserted against Int’l Trade Comm’n via amended complaints filed in underlying action against ITA). Ill In view of the foregoing, plaintiffs motion for judgment on the pleadings must be denied and this action dismissed. Judgment will enter accordingly. This action having been duly submitted for decision; and the court, after due" }, { "docid": "18674006", "title": "", "text": "at the statutory rate from the date of filing of the summons. 28 U.S.C. § 2644. Plainly, then, section 2644 also demonstrates that Congress expected all liquidated duties, charges, and exactions to be paid at the time an action contesting the denial of a protest is filed. In support of its contention that the court, under the circumstances of this case, should equitable principles to the requirements of 28 U.S.C. § 2637(a), plaintiff relies upon Dynasty Footwear v. United States, 4 CIT 196, 551 F. Supp. 1138 (1982). But, plaintiffs reliance upon Dynasty is misplaced here. In Dynasty, the court denied the government’s motion to dismiss for lack of jurisdiction holding that the requirement for payment of duties before commencement of an action imposed under section 2637(a) was satisfied. At the time the action was instituted in Dynasty, Customs was in possession of sufficient monies owing to plaintiff to pay the duties on the entry in the pending action and such monies owing to plaintiff should have been set off against the duties due on the entry covered by the action. In the current case, however, plaintiff concedes that the special circumstances existing in Dynasty relating to the offset to the duty liability are absent here. Plaintiff next insists that under section 2637(a) payment of liquidated duties is merely a condition precedent to suit which may be satisfied at any time after the action is commenced and that the statute imposes no jurisdictional requirement. This argument is refuted by the express language of the statute. Indeed, section 2637(a) is clear and unambiguous that an action may be brought \"only if all liquidated duties, charges or exactions have been paid at the time the action is commenced” (emphasis added). Plaintiff requests that the court ignore the express language of the statute and exercise its equity powers to make an exception for plaintiff under the circumstances of the present case. Fundamentally, of course, the United States is immune from suit except in accordance with the terms and conditions under which it consents to be sued. NEC Corporation v. United States, 806 F.2d" }, { "docid": "13669518", "title": "", "text": "estopped from claiming that the Court does not have subject matter jurisdiction. Id. at 2-4. The regulations in question included 19 C.F.R. §§ 24.3a(c)(4) and (d)(2) (1995), requiring Customs to apply a late payment first to the interest accrued on the delinquent principal amount and, respectively, to provide certain information to an importer’s surety. Because this Court finds that Plaintiffs theory of estoppel against the government is untenable, it is unnecessary to address Defendant’s arguments that Customs in fact complied with the above regulations and that Plaintiff has failed to establish the requisite elements of estoppel. The record shows that because Dazzle had failed to pay duties and interest owed on the nine entries after their liquidation, Customs sent a formal demand for payment to Dazzle’s surety, American Home Assurance Company, in a letter dated April 13, 1995. Ex. A to Plaintiffs Reply. The surety paid the bills with a separate check for each entry. However, the checks were sent after the due date specified in Customs’ letter. Id. Accordingly, Customs sent another formal demand to the surety on Aug. 7, 1995, requesting payment for additional interest in the amount of $966.10, which had accrued on the bills because payment was late. Ex. B to Plaintiffs Reply. Dazzle paid that amount with a check dated Sept. 27, 1995. Ex. C to Plaintiffs Reply. DISCUSSION Plaintiff commenced this action under 28 U.S.C. § 1581(a) (1994) to contest Custom’s denial of its protests. Pursuant to 28 U.S.C. § 2637(a) , the payment of all liquidated duties, charges or exactions at the time the action was commenced is a condition precedent to invoking the jurisdiction of the U.S. Court of International Trade in an action brought under section 1581(a). Melco Clothing Co. v. United States, 16 CIT 889, 890, 804 F.Supp. 369, 371 (1992). The condition is to be strictly applied and the statute precludes any exercise of discretion by the court. Penrod Drilling Co. v. United States, 13 CIT 1005, 1007, 727 F.Supp. 1463, 1465 (1989), reh’g denied, 14 CIT 281, 740 F.Supp. 858 (1990), aff'd, 9 Fed.Cir. (T) 60, 925 F.2d" }, { "docid": "16602875", "title": "", "text": "claims involve an allegation of compliance with section 2637(a), Melco asserts that the action should be treated as though the duties had been timely paid. However, the court agrees with defendant that the jurisdictional prerequisite of section 2637(a) cannot be satisfied by the late payment of duties, followed by the filing of an amended complaint. An action to contest a denial of a protest is deemed commenced on the date when the summons is filed. USCIT R. 3; Penrod Drilling Co. v. United States, 13 CIT 1005, 1007, 727 F. Supp. 1463, 1465 (1989), aff’d, 925 F.2d 406 (Fed. Cir. 1991). The payment of all liquidated duties, charges or exactions at the time the action is commenced is a condition precedent that must be satisfied before invoking the jurisdiction of this court. Id. See also Glamorise Foundations, Inc., v. United States, 11 CIT 394, 396-97, 661 F. Supp. 630, 632 (1987); Nature’s Farm Products, Inc. v. United States, 10 CIT 676, 648 F. Supp. 6 (1986), aff’d, 5 Fed. Cir. (T) 103, 819 F.2d 1127 (Fed. Cir. 1987). This condition is to be strictly applied and is not subject to implied exceptions. Glamorise, 11 CIT at 397, 661 F. Supp. at 632-33 (citing NEC Corp. v. United States, 5 Fed. Cir. (T) 49, 51, 806 F.2d 247, 249 (Fed. Cir. 1986)). Nevertheless, Melco contends that the liberal pleading rules of this court permit plaintiff to cure the jurisdictional defect of nonpayment of duties. Specifically, Melco proposes that by paying the duties after the filing of the summons and then pleading its tardy compliance with section 2637(a) in an amended complaint, its factual allegation of compliance with the statute “relates back” under USCIT R. 15(c) to the commencement of this action. Under this interpretation, Melco would be deemed to have paid the liquidated duties at the time the action was commenced. While there are no cases precisely addressing this point under USCIT R. 15(c), the court can rely upon ample authority concerning the mirror provision of Rule 15(c) in the Federal Rules of Civil Procedure. See Tomoegawa (U.S.A.), Inc. v. United" }, { "docid": "16602876", "title": "", "text": "(Fed. Cir. 1987). This condition is to be strictly applied and is not subject to implied exceptions. Glamorise, 11 CIT at 397, 661 F. Supp. at 632-33 (citing NEC Corp. v. United States, 5 Fed. Cir. (T) 49, 51, 806 F.2d 247, 249 (Fed. Cir. 1986)). Nevertheless, Melco contends that the liberal pleading rules of this court permit plaintiff to cure the jurisdictional defect of nonpayment of duties. Specifically, Melco proposes that by paying the duties after the filing of the summons and then pleading its tardy compliance with section 2637(a) in an amended complaint, its factual allegation of compliance with the statute “relates back” under USCIT R. 15(c) to the commencement of this action. Under this interpretation, Melco would be deemed to have paid the liquidated duties at the time the action was commenced. While there are no cases precisely addressing this point under USCIT R. 15(c), the court can rely upon ample authority concerning the mirror provision of Rule 15(c) in the Federal Rules of Civil Procedure. See Tomoegawa (U.S.A.), Inc. v. United States, 15 CIT 182, Slip Op. 91-35 at 8 (April 29, 1991) (citing Zenith Radio Corp. v. United States, 5 Fed. Cir. (T) 111, 114, 823 F.2d 518, 521 (Fed. Cir. 1987)). Melco’s interpretation of Rule 15(c) is erroneous. Leave to amend pleadings is generally liberally granted under Rule 15(a). See, e.g., United States v. Gold Mountain Coffee, 9 CIT 16, 17 (1985). If a jurisdictional basis is not lacking but has merely been imperfectly pleaded, an action will not be dismissed solely on account of technical defects in the body of the complaint. See Warth v. Seldin, 422 U.S. 490, 501 (1975); Local 179, United Textile Workers of America, AFL-CIO v. Federal Paper Stock Co., 461 F.2d 849, 851 (8th Cir. 1972). However, Melco’s reliance upon the “relation back” principle of Rule 15(c) is misplaced. The rule provides, in pertinent part: Whenever the claim or defense asserted in the amended pleading arose out of the conduct, transaction, or occurrence set forth or attempted to be set forth in the original pleading, the amendment relates" }, { "docid": "17656879", "title": "", "text": "not on the ground that it consents to jurisdiction, but because it contends that the defect in Samsung’s summons was not jurisdictional. Hence, the Court deems it appropriate to decide the motion on its merits. Cf., Gilmore Steel Corp. v. United States, — CIT —,-, 652 F.Supp. 1545, 1548 (1987). Recent decisions have spawned some confusion over what sort of filing defects are jurisdictional in nature. In Georgetown Steel Corp. v. United States, 801 F.2d 1308 (Fed.Cir.1986), our appellate court declared: Since section 1516a(a)(2)(A) specifies the terms and conditions upon which the United States has waived its sovereign immunity in consenting to be sued in the Court of International Trade, those limitations must be strictly observed and are not subject to implied exceptions____ If a litigant fails to comply with the terms upon which the United States has consented to be sued, the Court has no “jurisdiction to entertain the suit.” ... Id. at 1312 (citations omitted). One might plausibly infer from this language that any requirement for commencing an action imposed by Congress upon a private litigant is ipso facto jurisdictional (unless Congress has clearly indicated otherwise). Although the instant motion to dismiss is based on the failure of Samsung’s counsel to comply with certain rules of this Court, the statutes that specify the filing requirements expressly refer to such rules and require compliance therewith. The Court of Appeals in Georgetown Steel, on the other hand, went on to state: The Court of International Trade cannot by rule modify a requirement Congress has imposed. That is precisely what that court’s Rule 3(a) attempted to do, by providing that an action under 19 U.S.C. 1516a(a)(2) is “commenced by filing a summons only.” Id. at 1313. The government, in opposition to Zenith’s motion, cites this language to argue that “[sjince Congress has not made the signing of pleadings jurisdictional, that requirement cannot become jurisdictional merely because the Court has included such a provision in its rules.” (Defendant’s brief at 2-3). Samsung advances a similar argument in its brief (at 17). To the extent that the government and Samsung view this Court" }, { "docid": "14891734", "title": "", "text": "duty of immediate performance. 1 Corbin, Contracts § 80 (1963 ed.) (footnotes omitted). This analysis has support in case law. For example, in Sizemore v. E.T. Barwick Industries, Inc., 225 Tenn. 226, 465 S.W.2d 873 (1971), the court held that a suit for workmen’s compensation was timely commenced as it had been filed within one year of actual receipt of the last voluntary payment made by the insurance carrier. The trial judge’s view that the suit was barred by the statute of limitations, as it had been instituted more than a year from the date of mailing, was rejected. In Stream v. C.B.K. Agronomics, Inc., 79 Misc.2d 607, 361 N.Y.S.2d 110 (Sup.Ct. N.Y. Co. 1974), modified on other grounds, 48 App.Div.2d 637, 368 N.Y.S.2d 20 (1st Dep’t 1975), the failure of a debtor’s monthly installment payment to arrive on time in the mail was ground for immediate loan repayment under an acceleration clause of a promissory note. Finally, counsel’s attempt to equate plaintiff’s position with that of a federal taxpayer is also unpersuasive in view of 26 U.S.C. § 7502, which specifically provides that timely mailing of taxes is treated as timely payment thereof. The absence of a similar provision governing payment of duties owed to Customs compels the court to enter judgment, granting defendant’s motion to dismiss this action. Defendant’s Response to Plaintiff’s Opposition to Defendant’s Motion to Dismiss, p. 3 (emphasis in original). See Bulova Watch Co., Inc. v. United States, 9 CIT 67 (1985). Plaintiff’s Memorandum, p. 8. Georgetown Steel Corporation v. United States, 801 F.2d, 1308 (Fed.Cir. Sept. 18,1986) (citations omitted). Furthermore, the rule specifies the mode of mailing. While the record shows receipt herein of plaintiffs summons by certified mail, it also indicates that the check in question was placed in the regular mail by counsel’s secretary, and the court notes in passing that an action can be dismissed for failure to affix proper postage. See, e.g., NEC Corporation v. United States, 9 CIT 557, 622 F.Supp. 1086 (1985), reh’g denied, 10 CIT 15, 628 F.Supp. 976 (1986). 384 F.2d at 447 (Jones J., concurring)." }, { "docid": "13669519", "title": "", "text": "to the surety on Aug. 7, 1995, requesting payment for additional interest in the amount of $966.10, which had accrued on the bills because payment was late. Ex. B to Plaintiffs Reply. Dazzle paid that amount with a check dated Sept. 27, 1995. Ex. C to Plaintiffs Reply. DISCUSSION Plaintiff commenced this action under 28 U.S.C. § 1581(a) (1994) to contest Custom’s denial of its protests. Pursuant to 28 U.S.C. § 2637(a) , the payment of all liquidated duties, charges or exactions at the time the action was commenced is a condition precedent to invoking the jurisdiction of the U.S. Court of International Trade in an action brought under section 1581(a). Melco Clothing Co. v. United States, 16 CIT 889, 890, 804 F.Supp. 369, 371 (1992). The condition is to be strictly applied and the statute precludes any exercise of discretion by the court. Penrod Drilling Co. v. United States, 13 CIT 1005, 1007, 727 F.Supp. 1463, 1465 (1989), reh’g denied, 14 CIT 281, 740 F.Supp. 858 (1990), aff'd, 9 Fed.Cir. (T) 60, 925 F.2d 406 (1991); United States v. Boe, 64 C.C.P.A. 11, 16, 543 F.2d 151, 155 (1976). This action was commenced on August 30, 1995, when the summons was filed. USCIT R. 3(a); Penrod, 13 CIT at 1007, 727 F.Supp. at 1465. Dazzle made the last payment on its nine delinquent duty bills on Sept. 27, 1995, almost a month after this date. Thus, it is undisputed that payment for all duties, charges or exactions was not made at the time of commencing this action. It is immaterial if Dazzle’s payment discharged interest accrued on the bills because of the surety’s late payment, since section 2637(a)’s “terms charges or exactions include the assessment of interest on the late payment of liquidated duties.” Syva Co. v. United States, 12 CIT 199, 205, 681 F.Supp. 885, 890 (1988). Consequently, failure to pay such interest constitutes an omission, which is “fatal” and deprives the court of jurisdiction. 12 CIT at 199, 681 F.Supp. at 886. Despite the clear statutory mandate and numerous decisions which have applied strictly section 2637(a)’s requirement," }, { "docid": "13669521", "title": "", "text": "Plaintiff maintains that the Court should assume jurisdiction over this case on a theory of equitable estoppel. However, it is well settled that in a suit against the government, jurisdictional requirements cannot be waived or subject to excuse or remedy on the basis of equitable principles. Mitsubishi Electronics America, Inc. v. United States, 18 CIT 929, 932, 865 F.Supp. 877, 880 (1994). Such requirements must be strictly construed since a court has no power to relax the statutory preconditions for waiver of sovereign immunity. Halperin Shipping Co., Inc. v. United States, 14 CIT 438, 443, 742 F.Supp. 1163, 1168 (1990). See also United States v. Sherwood, 312 U.S. 584, 61 S.Ct. 767, 85 L.Ed. 1058 (1941); United States v. Mitchell, 445 U.S. 535, 100 S.Ct. 1349, 63 L.Ed.2d 607 (1980). As this Court has held: Fundamentally, of course, the United States is immune from suit except in accordance with the terms and conditions under which it consents to be sued. In section 2637(a), Congress manifestly expressed its intent that payment of liquidated duties at the time the action is commenced is a prerequisite to the filing of summons in an action brought to contest the denial of a protest. And “[t]he terms of the government’s consent to be sued in any particular court define the court’s jurisdiction to entertain suit.” Further, “[conditions upon which the government consents to be sued must be strictly observed and are not subject to implied exceptions.” Consequently, the court cannot entertain jurisdiction in this action based upon the exercise of discretion or equity powers ... [and] plaintiffs contention that noncompliance with section 2637(a) “may be subject to excuse and remedied upon equitable principles” must be rejected.... Glamorise Foundations, Inc. v. United States, 11 CIT 394, 397-98, 661 F.Supp. 630, 632-33 (1987) (citations omitted). Thus, plaintiffs claim of equitable estoppel against the government is without merit, and must be similarly rejected. Furthermore, it is uncertain when, if ever, a claim of equitable estoppel can lay against the government. While in Richmond the Supreme Court left open the possibility “that some type of ‘affirmative misconduct’ might give" }, { "docid": "18609174", "title": "", "text": "the defendants had expired. This fact, which the inter- venor-defendants do not dispute, has led both the plaintiffs and the defendants to oppose the motion to amend on jurisdictional grounds. This opposition is well-founded. Unlike the three movants, the EC Co-op had commenced a timely action in its own right against the defendants, challenging the ITA’s final determination in CIT No. 85-07-00978. In that case, the petitioners below (plaintiffs here) obtained leave to intervene as parties defendant, and they subsequently sought affirmative relief therein against the defendants, initially through their brief in opposition to the EC Co-op’s motion for judgment on the agency record and then by way of formal motion to file an amended answer. This court granted the EC Co-op’s motion to strike the claim for relief and denied the intervenor-defendants’ motion to amend in East Chilliwack Fruit Growers Co-operative v. United States, 11 CIT 104, Slip Op. 87-16 (Feb. 13, 1987), in view of Nakajima All Co., Ltd. v. United States, 2 CIT 170 (1981) (an intervening party cannot contest an antidumping-duty order through a cross-claim which does not comport with the time limitations imposed by 19 U.S.C. § 1516(a)). The court also relied on Fuji Electric Co., Ltd. v. United States, 7 CIT 247, 595 F. Supp. 1152 (1984), and on Georgetown Steel Corporation v. United States, 801 F.2d 1308, 1312 (Fed. Cir. 1986), wherein the Court of Appeals stated: Since section 1516(a)(2)(A) specifies the terms and conditions upon which the United States has waived its sovereign immunity in consenting to be sued in the Court of International Trade, those limitations must be strictly observed and are not subject to implied exceptions * * *. If a litigant fails to comply with the terms upon which the United States has consented to be sued, the court has no \"jurisdiction to entertain the suit.” [citations omitted] It is clear that this court does not have jurisdiction to entertain intervenor-defendants’ proposed cross-claim, and their motion for leave to amend their answer to include it must therefore be denied. The same conclusion of law warrants granting a motion by" } ]

[ { "docid": "22115713", "title": "", "text": "also alleged that defendants conspired “to go in disguise upon the highways” and that they did in fact go in disguise “consisting of the unlawful and unauthorized wearing of caps of the American Legion.” The District Court disposed of this part of the complaint by holding that wearing such headgear did not constitute the disguise or concealment of identity contemplated by the Act. Plaintiffs thereupon abandoned that part of the complaint and do not here rely upon it to support their claims. The complaint then separately sets out the overt acts of injury and damage relied upon to meet the requirements of the Act. To carry out the conspiracy, it is alleged, defendants proceeded to the meeting place and, by force and threats of force, did assault and intimidate plaintiffs and those present at the meeting and thereby broke up the meeting, thus interfering with the right of the plaintiffs to petition the Government for redress of grievances. Both compensatory and punitive damages are demanded. It is averred that the cause of action arises under the statute cited and under the Constitution of the United States. But apparently the draftsman was scrupulously cautious not to allege that it arose under the Fourteenth Amendment, or that defendants had conspired to deprive plaintiffs of rights secured by that Amendment, thus seeking to avoid the effect of earlier decisions of this Court in Fourteenth Amendment cases. The complaint makes no claim that the conspiracy or the overt acts involved any action by state officials, or that defendants even pretended to act under color of state law. It is not shown that defendants had or claimed any protection or immunity from the law of the State, or that they in fact enjoyed such because of any act or omission by state authorities. Indeed, the trial court found that the acts alleged are punishable under the laws of California relating to disturbance of the peace, assault, and trespass, and are also civilly actionable. The District Judge held that the statute does not and cannot constitutionally afford redress for invasions of civil rights at the hands" } ]

[ { "docid": "18857791", "title": "", "text": "that § 1985(3) was aimed against all conspiracies, whatever their source. A fair interpretation of the plain language then suggests that federally originated conduct is covered. Alvarez v. Wilson, 431 F.Supp. at 141. The district court looked next to the context, of § 1985. In Alvarez the defendants contended that, if § 1985 were held to extend to federal officers, it would simply be duplicative of §§ 1981 and 1982. The court stated: This contention is illogical. Section 1981 and § 1982 are limited to contractual and housing rights respectively. Alvarez has not alleged any deprivation of rights secured under § 1981 or § 1982. Section 1985(3), however, which prohibits racially motivated conspiracies generally, can assist him. If § 1985(3) reaches federal conspiracies, other remedies under the civil rights statutes would not be duplicated. Id. Legislative history gave the court the most trouble: Section 1985, along with § 1983, originated in the Civil Rights Act of 1871, also known as the Ku Klux Klan Act. It was specifically aimed at state officials and members of the Ku Klux Klan (persons who go in disguise on the highway) who had been terrorizing blacks. Primarily, the Civil Rights Act of 1871 is considered an exercise of Congressional power under the Fourteenth Amendment. And the commands of the Fourteenth Amendment are addressed only to the state or to those acting under color of state law. District of Columbia v. Carter, supra, 409 U.S. [418] at 423, 93 S.Ct. 602 [34 L.Ed.2d 613]. In contrast, § 1981 and § 1982 originated in the Civil Rights Act of 1866. Congress relied upon the Thirteenth Amendment in enacting this statute, and consequently, legislative jurisdiction does not require state action. Id. at 424, 93 S.Ct. 602. This distinction suggests that § 1985 does not apply to federal action. Some courts have so held. Moore v. Schlesinger, 384 F.Supp. 163 (D.Colo.1974); Williams v. Halperin, 360 F.Supp. 554 (S.D.N.Y.1973); Bethea v. Reid, 445 F.2d 1163 (3d Cir. 1971). In Griffin v. Breckenridge, supra, however, the Court held that § 1985(3) does not emanate from the Fourteenth Amendment, at least" }, { "docid": "18774611", "title": "", "text": "Section 1985(3) was enacted as part of § 2 of the so-called “Ku Klux Klan Act of 1871.” The statute was the congressional response to the illegal activities of certain groups in the South during the Reconstruction era. Nonetheless, the statute lay dormant for many years, and Supreme Court decisions construing the enactment have been infrequent and episodic. The lower courts have struggled to fill in the gaps, yet the scope of § 1985(3) could hardly be called clear. For example, the Supreme Court’s decision in Collins v. Hardyman, 341 U.S. 651, 71 S.Ct. 937, 95 L.Ed. 1253 (1951), was read to require that § 1985(3) reach only conspiracies involving state action. Twenty years later, however, in Griffin v. Breckenridge, 403 U.S. 88, 91 S.Ct. 1790, 29 L.Ed.2d 338 (1971), the Court rejected this “artificially restrictive construction” of Collins and concluded that the texts of the statute and its companion provisions, along with the legislative history of the 1871 Act, all pointed “unwaveringly to § 1985(3)’s coverage of private conspiracies.” 403 U.S. at 101, 91 S.Ct. at 1798. At issue in Griffin was an assault by a group of whites on a group of blacks who were traveling on an interstate highway in Mississippi. The attack was carried out because the whites mistakenly believed that the blacks were civil-rights workers. In considering the constitutional source of Congress’s authority to proscribe the specific conspiracy alleged, the Court studiously avoided the classification of the substantive rights at issue in Griffin as Fourteenth Amendment rights, and stated that the allegations did not call for a determination of the powers accorded Congress under § 5 of that amendment. The Court instead relied on the rights of the Thirteenth Amendment and of interstate travel — rights that are assertable against wholly private, as well as governmental, interference. According to the Court, the conduct alleged was “so close to the core of the coverage intended by Congress that it is hard to conceive of wholly private conduct that would come within the statute if this does not.” Id. at 103, 91 S.Ct. at 1799. At the" }, { "docid": "22650735", "title": "", "text": ". . .” Section 2 (now surviving in part as § 1985 (3)) provided a civil and a criminal remedy against conspiratorial interference with any person’s enjoyment of equal protection. Section 6 (now § 1986) cast the net of civil liability even more widely by providing a remedy against any person who, having the ability by reasonable diligence to prevent a violation of § 2, fails to do so. These remedies were bolstered by other criminal provisions of § 2 and by previously enacted criminal laws. Section 2 of the Civil Rights Act of 1866, 14 Stat. 27, re-enacted as § 17 of the Enforcement Act of 1870, 16 Stat. 144, as amended, now 18 U. S. C. § 242, provided a criminal remedy against what amounts to a violation of § 1983. Section 6 of the Enforcement Act of 1870, 16 Stat. 141, as amended, now 18 U. S. C. § 241, provided a criminal remedy against conspiracies to interfere with the exercise or enjoyment of a federal right. The history of this scheme of remedies for the protection of civil rights was, until very recently, one of virtual nullification by this Court. Key provisions were declared unconstitutional or given an unduly narrow construction wholly out of keeping with their purposes. In United States v. Harris, 106 U. S. 629 (1883), the Court invalidated the criminal provision of § 2 of the Ku Klux Klan Act, the criminal analogue to § 1985 (3), on the ground that Congress was not authorized by § 5 of the Fourteenth Amendment to prohibit interference by private persons with the exercise of Fourteenth Amendment rights, except perhaps in extreme and remote circumstances. Essential to the holding was a recognition that the language of § 2 plainly reaches conspiracies not involving state officials. See also Baldwin v. Franks, 120 U. S. 678 (1887). The statute (Rev. Stat. § 5519) was repealed in 1909. 35 Stat. 1154. In Collins v. Hardyman, 341 U. S. 651 (1951), the Court, under the influence of Harris, construed § 1985 (3). Pointing out that the language of § 1985" }, { "docid": "3321971", "title": "", "text": "The Congress shall have power to enforce, by appropriate legislation, the provisions of this article. . See Note, Fourteenth Amendment Congressional Power to Legislate Against Private Discriminations: The Guest Case, 52 Cornell L.Q. 586, 591-599. . 18 U.S.C.A. § 241. If two or more persons conspire to injure, oppress, threaten, or intimidate any citizen in the free exercise or enjoyment of any right or privilege secured to him by the Constitution or laws of the United States, or because of Ms having so exercised the same; or If two or more persons go in disguise on the highway, or on the premises of another, with intent to prevent or hinder his free exercise or enjoyment of any right or privilege so secured — ■ They shall be fined not more than $5,000 or imprisoned not more than ten years, or both. . 18 U.S.C.A. § 241 and 42 U.S.C.A. § 1985(3) are closely analogous, and one has been called the criminal “counterpart” of the other. Baldwin v. Morgan, 5 Cir. 1958, 251 F.2d 780, 790. However, the precise criminal analogue of the first several clauses in § 1985(3) was B.S. § 5519, originally part of Section 2 of the Act of April 20, 1871, 17 Stat. 13, 14. It was declared unconstitutional in United States v. Harris, 1883, 106 U.S. 629, 1 S.Ct. 601, 27 L.Ed. 290. See Hardyman v. Collins, 9 Cir.1950, 183 F.2d 308, 317 (dissenting opinion). . While Price and Mosley deal with § 241, and not § 1985(3), all indications in the legislative history of the Ku Klux Klan Act suggest that the two sections are to be viewed synoptieally. See Cong.Globe, 42nd Cong. 1st Sess., App. at 69. . Frantz, Federal Power to Protect Civil Rights: The Price and Guest Cases, 4 L. in Trans.Q. 63, 69-73 (1967) ; Note, Fourteenth Amendment Congressional Power To Legislate Against Private Dis-criminations : The Guest Case, 52 Cornell L.Q. 586, 599 (1967) ; Avins, The Civil Rights Act of 1875 and The Civil Rights Cases Revisited: State Action, The Fourteenth Amendment and Housing, 14 U.C.L.A.L.Rev. 5 (1966); Note," }, { "docid": "22642558", "title": "", "text": "rights — a separate constitutional question of federal-state comity — not over the nature of the rights themselves. By limiting § 2 to deprivations of equal protection and of equal privileges and immunities, the 42d Congress avoided the constitutional problems the more moderate Republicans saw in the creation of a general federal criminal law. The effect of that language was to limit federal jurisdiction to cases in which persons were the victims of private conspiracies motivated by the intent to interfere in the equal exercise and enjoyment of their legal rights. Congress did not intend any requirement of state involvement in either a civil or criminal action under § 2. B Consistent with this view, the Court has held on several occasions that §2 reaches purely private conspiracies. In United States v. Harris, 106 U. S. 629 (1883), the Court construed § 2 to prohibit a private conspiracy to deprive certain persons of equal protection by removing them from jail by force and lynching them. Section 2, it stated, applies “no matter how well the State may have performed its duty. Under it private persons are liable to punishment for conspir ing to deprive any one of the equal protection of the laws enacted by the State.” Id., at 639; cf. United States v. Williams, 341 U. S. 70, 76 (1951) (plurality opinion) (similar conspiracy provision, 18 U. S. C. §241, reaches private action). Collins v. Hardyman, 341 U. S. 651 (1951), arose from a political brawl between two white groups. The complaint alleged a § 1985(3) conspiracy to hinder the plaintiffs’ equal enjoyment of their First Amendment rights. Id., at 653-654. The Court noted possible constitutional problems with imposing civil liability for this type of activity, id., at 659, but passed over the issue. Id., at 661. Instead, it found that the alleged conspiracy was not one prohibited by the statute because there was no “allegation that defendants were conscious of or trying to influence the law.” Ibid. The Collins decision thus suggested a requirement of state involvement virtually identical to that adopted by the Court today. Griffin v." }, { "docid": "18857792", "title": "", "text": "the Ku Klux Klan (persons who go in disguise on the highway) who had been terrorizing blacks. Primarily, the Civil Rights Act of 1871 is considered an exercise of Congressional power under the Fourteenth Amendment. And the commands of the Fourteenth Amendment are addressed only to the state or to those acting under color of state law. District of Columbia v. Carter, supra, 409 U.S. [418] at 423, 93 S.Ct. 602 [34 L.Ed.2d 613]. In contrast, § 1981 and § 1982 originated in the Civil Rights Act of 1866. Congress relied upon the Thirteenth Amendment in enacting this statute, and consequently, legislative jurisdiction does not require state action. Id. at 424, 93 S.Ct. 602. This distinction suggests that § 1985 does not apply to federal action. Some courts have so held. Moore v. Schlesinger, 384 F.Supp. 163 (D.Colo.1974); Williams v. Halperin, 360 F.Supp. 554 (S.D.N.Y.1973); Bethea v. Reid, 445 F.2d 1163 (3d Cir. 1971). In Griffin v. Breckenridge, supra, however, the Court held that § 1985(3) does not emanate from the Fourteenth Amendment, at least as applied to private conspiracies against black people motivated by racial prejudice. The Court in Griffin noted that § 1985(3) is restricted to conspiracies to violate rights protected under the equal protection clause and did not cover conspiracies to deprive persons of other constitutional rights. As applied to complaints of racial discrimination brought by black citizens, then, § 1985(3) is a proper exercise of Congressional power under the Thirteenth Amendment, and state action is not constitutionally required. The court in Dry Creek Lodge, Inc. v. United States, 515 F.2d 926, 931 (10th Cir. 1975), extended this line of reasoning and indicated that § 1985(3) reaches federal officials. Accord, Revis v. Laird, 391 F.Supp. 1133 (E.D.Cal.1975). We agree with these decisions and hold that federal officers are suable under § 1985(3) for claims of racial discrimination. Id. As to § 1986, the court concluded: The scope of § 1986 coincides with its parent provision, § 1985, and need not be analyzed separately. Id. In Stith v. Barnwell, 447 F.Supp. 970, 973 (M.D.N.C.1978) another District Court similarly" }, { "docid": "22712253", "title": "", "text": "“continued vitality” of Collins v. Hardyman, id., at 823, and stated that “it would not surprise us if Collins v. Hardyman were disapproved and if § 1985 (3) were held to embrace private conspiracies tc interfere with rights of national citizenship/’ id., at 825-826 (footnote omitted), but concluded that “[s]ince we may not adopt what the Supreme Court has expressly rejected, we obediently abide' the mandate in Collins,” id., at 826-827. We granted certiorari, 397 U. S. 1074, to consider questions going to the scope and constitutionality of 42 U. S. C. § 1985 (3). I Collins v. Hardyman was decided 20 years ago. The complaint in that case alleged that the plaintiffs were members of a political club that had scheduled a meeting to adopt a resolution opposing the Marshall Plan, and to send copies of the resolution to appropriate federal officials; that the defendants conspired to deprive the plaintiffs of their rights as citizens of the United States peaceably to assemble and to equal privileges and immunities under the laws of the United States; that, in furtherance of the conspiracy, the defendants proceeded to the meeting sité and, by threats and violence, broke up the meeting, thus interfering with the right of the plaintiffs to petition the Government for the redress of grievances; and that the defendants did not interfere or conspire to interfere with the meetings of other political groups with whose opinions the defendants agreed. The Court held that this complaint did not state a cause of action under § 1985 (3): “The complaint makes no claim that the conspiracy or the overt acts involved any action by state officials, or that defendants even pretended to act under color of state law. It is not shown that defendants had or claimed any protection or immunity from the law of the State, or that' they in fact enjoyed such because of any act or omission by state authorities.” 341 U. S., at 655. “What we have here is not a conspiracy to affect in any way these plaintiffs’ equality of protection by the law, or their equality" }, { "docid": "22260345", "title": "", "text": "he alleged that he was in fact deprived of one. . Id. at 102, 91 S.Ct. at 1798 (emphasis in original) (footnotes omitted). . See id. at 97, 91 S.Ct. 1790. We do not mean to indicate, of course, that section 1985(3) applies only to private conspiracies. In this case, however, as in Griffin, no state action has been successfully asserted. See 526 F.2d at 872. . We have already pointed out, of course, that McLellan did in fact file in bankruptcy, and no allegation has been made that the defendants have prevented him from receiving the full ben efit of the Bankruptcy Act. See note 13 supra and accompanying test. . 403 U.S. at 97, 91 S.Ct. at 1796 (emphasis added). . Id. at 103, 91 S.Ct. 1790. . 106 U.S. 629, 1 S.Ct. 601, 27 L.Ed. 290 (1883). . See 403 U.S. at 97, 91 S.Ct. 1790. The Supreme Court in Harris struck down the criminal counterpart to section 1985(3) as unconstitutional because it swept too broadly in proscribing purely private conduct. Harris read the criminal statute as outlawing a conspiracy by two white citizens to deprive another free white citizen of a right accorded by the law of the state to all classes of persons. 106 U.S. at 641, 1 S.Ct. 601. The Court thought it clear that such a law could not be authorized by the thirteenth amendment, “the amendment which simply prohibits slavery and involuntary servitude.” Id. The Griffin Court avoided the unconstitutional overbreadth problem discerned in Harris by observing that Harris followed a severability rule that required invalidation of an entire statute if any part of it was unconstitutionally overbroad. 403 U.S. at 104, 91 S.Ct. 1790. Under United States v. Raines, 362 U.S. 17, 20-24, 80 S.Ct. 519, 4 L.Ed.2d 524 (1960), all possible applications of a statute do not have to be constitutional in order to uphold it in a specific case. . 106 U.S. at 643, 1 S.Ct. at 612. Some might suggest that the quoted language was dicta in Harris. This is not the case. It has long been settled" }, { "docid": "4386743", "title": "", "text": "from the State. See, e.g., United States v. Harris, 106 U.S. 629, 643, 1 S.Ct. 601, 27 L.Ed. 290 [1883].... Indeed, the failure to mention any such requisite can be viewed as an important indication of congressional intent to speak in § 1985(3) of all deprivation of “equal protection of the laws” and “equal privileges and immunities under the laws,” whatever their source. The approach of this Court to other Reconstruction civil rights statutes in the years since Collins has been to “accord [them] a sweep as broad as [their] language.” ... Moreover, very similar language in closely related statutes has early and late received an interpretation quite inconsistent with that given to § 1985(3) in Collins. In construing the exact criminal counterpart of § 1985(3), the Court in United States v. Harris, supra, observed that the statute was “not limited to take effect only in case [of state action],” id., at 639, 1 S.Ct. 601, ... but “was framed to protect from invasion by private persons the equal privileges and immunities under the laws of all persons and classes of persons,” id., at 637, 1 S.Ct. 601.... In United States v. Williams, 341 U.S. 70, 95, 71 S.Ct. 581, 95 L.Ed. 758 ..., the Court considered the closest remaining criminal analogue to § 1985(3), 18 U.S.C. § 241. Mr. Justice Frankfurter’s plurality opinion, without contravention from the concurrence or dissent, concluded that “if language is to carry any meaning at all it must be clear that the principal purpose of [§ 241], unlike [18 U.S.C. § 242], was to reach private action rather than officers of a State acting under its authority. Men who ‘go in disguise upon the public highway, or upon the premises of another’ are not likely to be acting in official capacities.” 341 U.S., at 76, 71 S.Ct. 581.... “Nothing in [the] terms [of § 241] indicates that color of State law was to be relevant to prosecution under it.” Id., at 78, 71 S.Ct. 581. Griffin, 403 U.S. at 96-98, 91 S.Ct. 1790 (footnotes omitted; emphases added) (overruling Collins, which construed § 1985(3) as" }, { "docid": "3321972", "title": "", "text": "However, the precise criminal analogue of the first several clauses in § 1985(3) was B.S. § 5519, originally part of Section 2 of the Act of April 20, 1871, 17 Stat. 13, 14. It was declared unconstitutional in United States v. Harris, 1883, 106 U.S. 629, 1 S.Ct. 601, 27 L.Ed. 290. See Hardyman v. Collins, 9 Cir.1950, 183 F.2d 308, 317 (dissenting opinion). . While Price and Mosley deal with § 241, and not § 1985(3), all indications in the legislative history of the Ku Klux Klan Act suggest that the two sections are to be viewed synoptieally. See Cong.Globe, 42nd Cong. 1st Sess., App. at 69. . Frantz, Federal Power to Protect Civil Rights: The Price and Guest Cases, 4 L. in Trans.Q. 63, 69-73 (1967) ; Note, Fourteenth Amendment Congressional Power To Legislate Against Private Dis-criminations : The Guest Case, 52 Cornell L.Q. 586, 599 (1967) ; Avins, The Civil Rights Act of 1875 and The Civil Rights Cases Revisited: State Action, The Fourteenth Amendment and Housing, 14 U.C.L.A.L.Rev. 5 (1966); Note, Congressional Power Under Section 5 of the Fourteenth Amendment May Extend to Punishment of Private Conspiracies to Interfere With The Equal Enforcement of State-Owned Public Facilities, 45 Tex.L.Rev. 168 (1966); Note, Civil Rights-Federal Criminal Code Protects Rights Secured by Fourteenth Amendments, 20 Vand.L.Rev. 170 (1966) ; Silard, A Constitutional Forecast: Demise of the “State Action” Limit on the Equal Protection Guarantee, 66 Col.L. Rev. 855 (1966). . “Since we therefore deal here only with the bare terms of the Equal Protection Clause itself, nothing said in this opinion goes to the question of what kinds of other and broader legislation Congress might constitutionally enact under § 5 of the Fourteenth Amendment to implement that Clause or any other provision of the Amendment.” 383 U.S. at 754-755, 86 S.Ct. at 1176. . We do not pass upon whether § 1985 (3) can be justified as reaching private conduct if read as an exercise of Congressional power under the Thirteenth Amendment, cf. United States v. Harris, 106 U.S. at 641, 1 S.Ct. 601, or whether racially motivated" }, { "docid": "22627657", "title": "", "text": "1871, of which § 1985 (3) was originally a part, has been reviewed many times in this Court. The section as first en acted authorized both criminal and civil actions against those who have conspired to deprive others of federally guaranteed rights. Before the 19th century ended, however, the Court found the criminal provisions of the statute unconstitutional because they exceeded the scope of congressional power, United States v. Harris, 106 U. S. 629; Baldwin v. Franks, 120 U. S. 678, and the provisions thus invalidated were later formally repealed by Congress. The civil action provided by the Act remained, but for many years was rarely, if ever, invoked. The provisions of what is now § 1985 (3) were not fully considered by this Court until 1951, in the case of Collins v. Hardyman, 341 U. S. 651. There the Court concluded that the section protected citizens only from injuries caused by conspiracies “under color of state law.” Twenty years later, in Griffin v. Breckenridge, 403 U. S. 88, the Court unanimously concluded that the Collins Court had accorded to the provisions of § 1985 (3) too narrow a scope. The fears concerning congressional power that had motivated the Court in the Collins case had been dissolved by intervening cases. See Griffin v. Breckenridge, supra, at 96-97, 104-106. Therefore, the Court found that § 1985 (3) did provide a cause of action for damages caused by purely private conspiracies. The Court’s opinion in Griffin discerned the following criteria for measuring whether a complaint states a cause of action under § 1985 (3): “To come within the legislation a complaint must allege that the defendants did (1) ‘conspire or go in disguise on the highway or on the premises of another’ (2) ‘for the purpose of depriving, either directly or indirectly, any person or class of persons of the equal protection of the laws, or of equal privileges and immunities under the laws.’ It must then assert that one or more of the conspirators (3) did, or caused to be done, ‘any act in furtherance of the object of [the] conspiracy,’" }, { "docid": "9622028", "title": "", "text": "in Keating. Even if Scott does not suffice, as we think it does, we then respectfully disagree. The judgment of the district court is AFFIRMED. . Prior to the decision in Griffin, § 1985(3) had remained largely dormant, and the Supreme Court had issued only two significant opinions interpreting the coverage of the statute since its enactment. In United States v. Harris, 106 U.S. 629, 1 S.Ct. 601, 27 L.Ed. 290 (1883), the Court held unconstitutional the criminal provisions of section 2 of the Ku KIux Klan Act, the counterpart to the civil remedies of § 1985(3). Specifically, the Court viewed the provisions as an attempt by Congress to acquire a general criminal jurisdiction for the federal courts. In maintaining that view, the Court construed the statute to be overbroad, and held that its passage exceeded the possible sources of Congressional authority, in particular the Thirteenth, Fourteenth and Fifteenth Amendments. Id. at 637-642, 1 S.Ct. at 607-12. The Court’s next notable pronouncement concerning § 1985(3) came 70 years later in Collins v. Hardyman, 341 U.S. 651, 71 S.Ct. 937, 95 L.Ed. 1253 (1951). Collins involved the disruption of a political meeting of white citizens protesting the Marshall Plan, by another group of whites falsely wearing American Legion hats. The complaint alleged that the plaintiffs were members of a political club who had been deprived of their First and Fourteenth Amendment rights by violent, conspiratorial activities of the defendants. In concluding that the complaint did not state a cause of action under § 1985(3), the Court held that the complaint failed to make any allegations that the “conspiracy or the overt acts involved any action by state officials, or that the defendants even pretended to act under color of state law.\" Id. at 655. The Court further reasoned that What we have here is not a conspiracy to affect in any way these plaintiffs’ equality of protection by the law, or the equality of privileges and immunities under the law. There is not the slightest allegation that defendants were conscious of or trying to influence the law, or were endeavoring to" }, { "docid": "14467615", "title": "", "text": "thereby depriving plaintiff of employment, on the ground that there was no federal right involved. Downie v. Powers, 10 Cir., 1951, 193 F.2d 760, is closely analogous to the instant case. The plaintiff sued city officials and individuals alleging that the defendants, private persons, had broken up a meeting of Jehovah’s Witnesses by violence and that the city officials had failed to protect the plaintiffs against such action. The trial court instructed the jury that Section 1985(3) required proof of a conspiracy involving the city officials. The Court of Appeals upheld the instructions but reversed for other errors. If the defendants impaired any right of the plaintiffs, it was the right to police protection. This right is derived from the State, not the Federal Government. Private citizens deprived of such a right by other private citizens have not been deprived of a federally-granted right, giving rise to an action based on the Constitution and laws of United States. We do not consider the constitutional question whether Congress would have the power to enact a statute to prohibit conspiracies having the purpose of depriving citizens of rights arising under state laws. We point out, however, as the Supreme Court did in Collins v. Har-■dyman, that to construe Section 1985(3) as applicable to state-granted rights would raise a serious constitutional question. C. A third fatal weakness in the plaintiffs’ case is that the defendants are private persons. It is still the law that the Fourteenth Amendment and the statutes enacted pursuant to it, including 42 U.S.C.A. § 1985, apply only when there is state action. Collins v. Hardyman, 1951, 341 U.S. 651, 71 S.Ct. 937, 95 L.Ed. 1253; Civil Rights Cases, 1883, 109 U.S. 3, 3 S.Ct. 18, 27 L.Ed. 835; United States v. Harris, 1883, 109 U.S. 629, 1 S.Ct. 601, 27 L.Ed. 290. As the Court said in the Civil Rights Cases: “It is State action of a particular character that is prohibited. Individual invasion of individual rights is not the subject-matter of the amendment. It has a deeper and broader scope. It nullifies and makes void all State legislation," }, { "docid": "838024", "title": "", "text": "rights statutes would be disturbed. Since § 1981 and § 1982 extend to federal action, they argue, § 1985 and § 1986 need not. District of Columbia v. Carter, 409 U.S. 418, 422, 93 S.Ct. 602, 34 L.Ed.2d 613 (1973) (§ 1982); Baker v. F & F Investment Co., 489 F.2d 829, 832-33 (7th Cir. 1973) (§ 1981, § 1982). This contention is illogical. Section 1981 and § 1982 are limited to contractual and housing rights respectively. Alvarez has not alleged any deprivation of rights secured under § 1981 or § 1982. Section 1985(3), however, which prohibits racially motivated conspiracies generally, can assist him. If § 1985(3) reaches federal conspiracies, other remedies under the civil rights statutes would not be duplicated. The history of § 1985(3) should also be considered. Section 1985, along with § 1983, originated in the Civil Rights Act of 1871, also known as the Ku Klux Klan Act. It was specifically aimed at state officials and members of the Ku Klux Klan (persons who go in disguise on the highway) who had been terrorizing blacks. Primarily, the Civil Rights Act of 1871 is considered an exercise of Congressional power under the Fourteenth Amendment. And the commands of the Fourteenth Amendment are addressed only to the state or to those acting under color of state law. District of Columbia v. Carter, supra, 409 U.S. at 423, 93 S.Ct. 602. In contrast, § 1981 and § 1982 originated in the Civil Rights Act of 1866. Congress relied upon the Thirteenth Amendment in enacting this statute, and consequently, legislative jurisdiction does not require state action. Id. at 424, 93 S.Ct. 602. This distinction suggests that § 1985 does not apply to federal action. Some courts have so held. Moore v. Schlesinger, 384 F.Supp. 163 (D.Colo.1974); Williams v. Halperin, 360 F.Supp. 554 (S.D.N.Y.1973); Bethea v. Reid, 445 F.2d 1163 (3d Cir. 1971). In Griffin v. Breckenridge, supra, however, the Court held that § 1985(3) does not emanate from the Fourteenth Amendment, at least as applied to private conspiracies against black people motivated by racial prejudice. The Court in Griffin noted" }, { "docid": "9622027", "title": "", "text": "the use of unlawful conduct in the deprivation of rights necessarily calls for a remedy. The Court remarked: “[W]e find difficult the question of whether § 1985(3) provided a remedy for every concerted effort by one political group to nullify the influence of or do other injury to a competing group by use of otherwise unlawful means.” Carpenters v. Scott, 463 U.S. at 836, 103 S.Ct. at 3359 (emphasis supplied). In light of this language, and the Court’s previous declarations, we are unable to find that Harrison is entitled to a remedy under § 1985(3) for loss of private employment. In sum, we are of opinion that Republicans as a class are not protected by § 1985(3) in their private affairs against otherwise lawful, private conduct, even though the conduct may be a conspiracy which has as its purpose the discouragement of the participation of a Republican in the affairs of his party. We believe the Court’s opinion in Scott is sufficient reason for us to form an opposite conclusion than the Second Circuit did in Keating. Even if Scott does not suffice, as we think it does, we then respectfully disagree. The judgment of the district court is AFFIRMED. . Prior to the decision in Griffin, § 1985(3) had remained largely dormant, and the Supreme Court had issued only two significant opinions interpreting the coverage of the statute since its enactment. In United States v. Harris, 106 U.S. 629, 1 S.Ct. 601, 27 L.Ed. 290 (1883), the Court held unconstitutional the criminal provisions of section 2 of the Ku KIux Klan Act, the counterpart to the civil remedies of § 1985(3). Specifically, the Court viewed the provisions as an attempt by Congress to acquire a general criminal jurisdiction for the federal courts. In maintaining that view, the Court construed the statute to be overbroad, and held that its passage exceeded the possible sources of Congressional authority, in particular the Thirteenth, Fourteenth and Fifteenth Amendments. Id. at 637-642, 1 S.Ct. at 607-12. The Court’s next notable pronouncement concerning § 1985(3) came 70 years later in Collins v. Hardyman, 341 U.S." }, { "docid": "4386742", "title": "", "text": "aspect must include private action, it is hard to see how the conspiracy aspect, joined by a disjunctive, could be read to require the involvement of state officers. The provision continues, specifying the motivation required “for the purpose of depriving, either directly or indirectly, any person or class of persons of the equal protection of the laws, or of equal privileges and immunities under the laws.” This language is, of course, similar to that of § 1 of the Fourteenth Amendment, which in terms speaks only to the States, and judicial thinking about what can constitute an equal protection deprivation has, because of the Amendment’s wording, focused almost entirely upon identifying the requisite “state action” and defining the offending forms of state law and official conduct. A century of Fourteenth Amendment adjudication has, in other words, made it understandably difficult to conceive of what might constitute a deprivation of the equal protection of the laws by private persons. Yet there is nothing inherent in the phrase that requires the action working the deprivation to come from the State. See, e.g., United States v. Harris, 106 U.S. 629, 643, 1 S.Ct. 601, 27 L.Ed. 290 [1883].... Indeed, the failure to mention any such requisite can be viewed as an important indication of congressional intent to speak in § 1985(3) of all deprivation of “equal protection of the laws” and “equal privileges and immunities under the laws,” whatever their source. The approach of this Court to other Reconstruction civil rights statutes in the years since Collins has been to “accord [them] a sweep as broad as [their] language.” ... Moreover, very similar language in closely related statutes has early and late received an interpretation quite inconsistent with that given to § 1985(3) in Collins. In construing the exact criminal counterpart of § 1985(3), the Court in United States v. Harris, supra, observed that the statute was “not limited to take effect only in case [of state action],” id., at 639, 1 S.Ct. 601, ... but “was framed to protect from invasion by private persons the equal privileges and immunities under the laws" }, { "docid": "18857787", "title": "", "text": "of congressional intent to speak in § 1985(3) of all deprivations of “equal protection of the laws” and “equal privileges and immunities under the laws,” whatever their source. Id. at 97, 91 S.Ct. at 1796. The Court stated that its general approach to the construction of the civil rights statutes was to “ ‘accord [them] a sweep as broad as their language.’ ” Id. Finally, the Court relied on the construction it gave to similar language in the criminal counterparts of this statute, which the Court held extended to private action. The Court further found that to read § 1985(3) consistently with its companion provisions it would have to be read to reach private conspiracies. If a state action requirement were read into § 1985(3), that section would merely be duplicative of the other sections. Finally, the Court referred to legislative history which indicated that § 1985(3) was intended to reach private conspiracies. The Supreme Court further found that as construed § 1985(3), contrary to dicta in previous holdings, was constitutional. The Court held that at least as applied in Griffin, § 1985(3) was based not on the Fourteenth Amendment, which requires state action, but rather on Section 2 of the Thirteenth Amendment: We can only conclude that Congress was wholly within its powers under § 2 of the Thirteenth Amendment in creating a statutory cause of action for Negro citizens who have been the victims of conspiratorial, racially discriminatory private action aimed at depriving them of the basic rights that the law secures to all free men. Id. at 105, 91 S.Ct. at 1800. Furthermore, the court held that § 1985(3) would be constitutional as construed because: Our cases have firmly established that the right of interstate travel is constitutionally protected, does not necessarily rest on the Fourteenth Amendment, and is assertable against private as well as governmental interference. Shapiro v. Thompson, 394 U.S. 618, 629-631, 89 S.Ct. 1322, 1328-1330, 22 L.Ed.2d 600; id., at 642-644, 89 S.Ct. at 1335-1336 (concurring opinion); United States v. Guest, 383 U.S. 745, 757-760 and n.17, 86 S.Ct. 1170, 1177-1180, 16 L.Ed.2d 239;" }, { "docid": "9622010", "title": "", "text": "267 (1984). A resume of Supreme Court decisions on the subject appears in Novotny, infra, 442 U.S. at p. 370, n. 7, 99 S.Ct. at p. 2348, n. 7. Against this backdrop of political terrorism, Congress enacted § 1985(3), affording a remedy for the vindication of the civil rights of those being threatened and injured, notably blacks and advocates for their cause, including Republicans. See Carpenters v. Scott, 463 U.S. at 836, 103 S.Ct. at 3359. However, while the statute originally grew from the conflict accompanying the freeing of blacks and the passage of the Thirteenth, Fourteenth and Fifteenth Amendments, its broad language has prompted some expansive interpretations in recent years. The result has been considerable controversy among the inferi- or federal courts over the reach of § 1985(3). See Hobson v. Wilson, 737 F.2d 1, 21 (D.C.Cir.1984). It is to this question which we now turn. The starting point in our decision concerning the scope of protection provided by § 1985(3) must begin with the Supreme Court’s landmark decision in Griffin v. Breckenridge, 403 U.S. 88, 91 S.Ct. 1790, 29 L.Ed.2d 338 (1971). In Griffin, a group of blacks was assaulted by a group of whites while traveling on an interstate highway in Mississippi. The attack was carried out under the mistaken belief that the blacks were civil rights workers. The blacks filed an action for damages pursuant to § 1985(3). The issue before the Supreme Court was whether the coverage of § 1985(3) reached individuals acting in a purely private capacity. The Court held that the statute does create a cause of action for certain kinds of private action interfering with the federally protected rights to travel and Thirteenth Amendment rights, and enumerated the elements required for stating a complaint under § 1985(3): To come within the legislation a complaint must allege that the defendants did (1) “conspire or go in disguise on the highway or on the premises of another” (2) “for the purpose of depriving, either directly or indirectly, any person or class of persons of the equal protection of the laws, or of equal privileges" }, { "docid": "22627656", "title": "", "text": "Novotny appealed. After oral argument before a three-judge panel, the case was reargued before the en banc Court of Appeals for the Third Circuit, which unanimously reversed the District Court’s judgment. 584 F. 2d 1235. The Court of Appeals ruled that Novotny had stated a cause of action under § 1985 (3). It held that conspiracies motivated by an invidious animus against women fall within § 1985 (3), and that Novotny, a male allegedly injured as a result of such a conspiracy, had standing to bring suit under that statutory provision. It ruled that Title VII could be the source of a right asserted in an action under § 1985 (3), and that intra-corporate conspiracies come within the intendment of the section. Finally, the court concluded that its construction of § 1985 (3) did not present any serious constitutional problem. We granted certiorari, 439 U. S. 1066, to consider the applicability of § 1985 (3) to the facts alleged in Novotny’s complaint. II The legislative history of § 2 of the Civil Rights Act of 1871, of which § 1985 (3) was originally a part, has been reviewed many times in this Court. The section as first en acted authorized both criminal and civil actions against those who have conspired to deprive others of federally guaranteed rights. Before the 19th century ended, however, the Court found the criminal provisions of the statute unconstitutional because they exceeded the scope of congressional power, United States v. Harris, 106 U. S. 629; Baldwin v. Franks, 120 U. S. 678, and the provisions thus invalidated were later formally repealed by Congress. The civil action provided by the Act remained, but for many years was rarely, if ever, invoked. The provisions of what is now § 1985 (3) were not fully considered by this Court until 1951, in the case of Collins v. Hardyman, 341 U. S. 651. There the Court concluded that the section protected citizens only from injuries caused by conspiracies “under color of state law.” Twenty years later, in Griffin v. Breckenridge, 403 U. S. 88, the Court unanimously concluded that the" }, { "docid": "9622029", "title": "", "text": "651, 71 S.Ct. 937, 95 L.Ed. 1253 (1951). Collins involved the disruption of a political meeting of white citizens protesting the Marshall Plan, by another group of whites falsely wearing American Legion hats. The complaint alleged that the plaintiffs were members of a political club who had been deprived of their First and Fourteenth Amendment rights by violent, conspiratorial activities of the defendants. In concluding that the complaint did not state a cause of action under § 1985(3), the Court held that the complaint failed to make any allegations that the “conspiracy or the overt acts involved any action by state officials, or that the defendants even pretended to act under color of state law.\" Id. at 655. The Court further reasoned that What we have here is not a conspiracy to affect in any way these plaintiffs’ equality of protection by the law, or the equality of privileges and immunities under the law. There is not the slightest allegation that defendants were conscious of or trying to influence the law, or were endeavoring to obstruct or interfere with it. The only inequality suggested is that the defendants broke up plaintiffs’ meeting and did not break up meetings of others with whose sentiments they agreed____ Such private discrimination is not inequality before the law unless there is some manipulation of the law or its agencies to give sanction or sanctuary for doing so. Id. at 661. The Court in Collins avoided resolving any constitutional questions on the scope of § 1985(3), instead choosing to find that the facts before it did not satisfy required elements of the statute’s language. However, the opinion has been read as holding that state action is a necessary element for stating a cause of action under § 1985(3). See, e.g., Collins v. Hardyman, 341 U.S. at 663, 71 S.Ct. at 942 (Justice Burton dissenting); Novotny, infra, 442 U.S. at p. 371, 99 S.Ct. p. 2348. In any event, the Court in Griffin did not adopt that analysis of Collins, and we need not now concern ourselves with that decision. See Griffin v. Breckenridge, 403 U.S." } ]

[ { "docid": "17235713", "title": "", "text": "her Vaccine Act claim on March 31, 2000. A special master of the Court of Federal Claims held an evidentiary hearing on June 14, 2002, and in a June 3, 2003, decision denied compensation upon determining that the TT vaccination did not cause Althen’s illness. Despite the testimony of Dr. Derek R. Smith, a board-certified neurologist with a subspecialty in neuroimmunology, that the TT shot caused her injury and that the onset of her optic neuritis occurred within a medically-accepted time period for causal connection, the special master found that because Al-then did not provide peer-reviewed literature that demonstrated “ ‘a suspected or potential association’ between the tetanus toxoid vaccine and the alleged injuries” as required by Stevens v. Secretary of Health and Human Services, No. 99-594V, 2001 WL 387418 (Fed.Cl.2001), she did not prove causation-in-fact. Althen v. Sec’y of Health & Human Servs., No. 00-170V, 2003 WL 21439669, at *14 (Fed. Cl. Sp. Mstr. June 3, 2003) (\" Althen I \") (emphasis in original). Althen sought review of the decision by the Court of Federal Claims, arguing that the special master erred as a matter of law by imposing the Stevens test to heighten her evidentiary burden. After concluding that the Stevens test was not in accordance with law and the special master’s reliance on it was in error, the court reversed, holding that Althen had proven causation in fact under the preponderant evidence standard set forth in the Vaccine Act. The court remanded to the special master for an award of compensation to Althen. The government appeals, and we have jurisdiction under 42 U.S.C. § 300aa-12(f). Discussion Under the Vaccine Act, the Court of Federal Claims reviews the special master’s decision to determine if it is “arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law[.]” 42 U.S.C. § 300aa-12(e)(2)(B). Because we review the trial court’s legal determination that the special master acted in a manner not in accordance with law de novo, we effectively review the special master’s decision under the same standard. See Hines v. Sec’y of Health & Human Servs., 940 F.2d" } ]

[ { "docid": "15241077", "title": "", "text": "and (3) os-teopenia, with degenerative changes in her cervical spine. Dr. Leist rejected Dr. Tor-natore’s hypothesis that Lombardi suffered from transverse myelitis as a result of the series of hepatitis B vaccinations. At the second hearing, on April 9, 2008, Dr. Shoenfeld, Lombardi’s expert, testified that Lombardi suffered from chronic fatigue syndrome, which was a “direct result” of the hepatitis B vaccine. Although not stated in his expert report, Dr. Sho-enfeld opined for the first time at that hearing that Lombardi’s condition met the diagnostic criteria for SLE, which he believed was also caused by the hepatitis B vaccinations. Dr. Kagen, the government’s expert, offered multiple possible diagnoses for Lombardi’s condition, but did not comment as to whether she suffered from chronic fatigue syndrome. Dr. Kagen’s list of diagnoses included (1) a mixed connective tissue disease with rheumatoid arthritis overlap, (2) osteoarthritis with spinal cord and nerve root compression, (3) a nutritional deficit due to a lack of vitamin B 12 in her diet, (4) an allergic reaction to mold, and (5) depression. At the third hearing, on November 25, 2008, Dr. Kagen testified that Lombardi did not meet the diagnosis for SLE under the criteria set out by the American College of Rheumatology (“ACR”). Dr. Sho-enfeld reiterated his diagnosis of SLE. On January 29, 201Ó, the special master published an opinion denying Lombardi’s entitlement under the Vaccine Act. Doe 60 v. Sec’y of Health & Human Servs., No. 99-W-523, 2010 WL 1506010 (Fed.Cl. Mar. 26, 2010) (“Special Master Op”). The special master conducted a thorough analysis of all the tests performed on Lombardi, and the opinions of the treating physicians as well as the conflicting opinions of the testifying experts. See id. at *12-33. The special master concluded that petitioner was not entitled to compensation because she had “not established that she suffers from any of the three conditions that provide the basis for her experts’ opinions.” Id. at *1. The special master stated that under our holding in Althen v. Secretary of Health & Human Services, 418 F.3d 1274, 1278 (Fed.Cir.2005), when a petitioner claims compensation for an" }, { "docid": "588188", "title": "", "text": "v. Secretary, HHS, 36 Fed.Cl. 474, 481-82 (1996). After conducting a factual hearing, the special master issued a decision on remand in which she summarized certain facts revealed during the hearing and then concluded that petitioners had failed to demonstrate that equitable tolling applied so as to render the petition timely filed. The special master found that the first manifestation of Tilghman’s injury occurred on May 9, 1992, and that absent any tolling, the 36-month limitations period set forth in Section 16(a)(2) expired on May 9, 1995, over seven months before petitioners filed their petition on December 19, 1995. The special master based her conclusion that equitable tolling did not apply to petitioners’ case on two independent grounds. First, the special master concluded that equitable tolling was not available because petitioners, in effect, reasonably recognized the causal relationship between the MMR vaccination and Tilghman’s injuries long before the 36-month statutory period expired, but failed to proceed in due course to file a petition. The special master explained: Petitioners were under a duty to seek legal counsel before the running of the statute of limitations. In a family where the parents have medical training, where a relative is a lawyer, where the mother recognizes from the beginning that her child is having an MMR reaction, and the child becomes vastly different (losing milestones, just sitting vacantly) after the MMR for a number of months, it begs credulity to imagine that any tolling of the statute of limitations in this case would be equitable. Brice v. Secretary, HHS, 1996 WL 718287, at *5 (1996). The special master concluded that tolling would not be available even if petitioners were unaware of the availability of a suit under the Vaccine Act because “ignorance of one’s legal rights does not toll the statute of limitations.” Id. at *4 (citing Dion v. United States, 137 Ct.Cl. 166, 167 (1956)). Second, the special master alternatively rejected equitable tolling based on her finding that “a neurologist, Dr. Eileen Vining, expressly told Dr. Councill on March 30,1995 (still five weeks before the statute of limitations expired) to bring an" }, { "docid": "15228761", "title": "", "text": "ease. Id. at *13. Dr. Leist did not consider the skepticism of petitioner’s treating physicians regarding the veracity of her complaints to be ineon-gruent with their election to prescribe powerful pain medications, including narcotics. Id. Dr. Leist explained that, in the absence of any objective measure of a patient’s pain, “a physician that takes care of a patient” would “necessarily treat[ ] pain based on the representations of the patient.” Id. In the final analysis, Dr. Leist concluded that petitioner “did not sustain a vaccine injury or ... [a] neurologic consequence of the vaccine.” Id. at *12. Rather, in Dr. Leist’s opinion, petitioner’s early symptoms (including the rash and tongue swelling) were more consistent with an allergic, rather than a neurologic, reaction to her second vaccination, especially in light of petitioner’s documented history of allergic reaction to various medications. Id. C. The Chief Special Master’s Decision Based upon the record as a whole, including the medical history and expert testimony summarized above, the Chief Special Master concluded that petitioner failed to establish that she suffers from a vaccine-related injury. Id. at *17. Significantly, deep skepticism as to the existence of petitioner’s alleged neurological injury pervaded the Chief Special Master’s opinion. See id. at *1-3, *14-17. Nevertheless, the Chief Special Master proceeded to apply the Althen test for causation. See id. at *14-17. The Chief Special Master credited Dr. Tor-natore’s unrebutted testimony that “two weeks between a precipitating event — such as the vaccination in th[is] case — and the appearance of an immune-mediated neurological injury falls within the ‘right’ time frame medically.” Id. at *17. Accordingly, the Chief Special Master concluded that petitioner established “an appropriate temporal relationship ... between her vaccination and her alleged injury,” thus satisfying the third prong of the Althen test. Id. However, the Chief Special Master concluded that petitioner failed to satisfy the first two prongs of the Althen test. Id. Under the first prong, petitioner needed to establish a medical theory causally connecting her alleged neurological injury to the hepatitis B vaccination. Althen, 418 F.3d at 1278. The Chief Special Master cited, inter alia," }, { "docid": "22240224", "title": "", "text": "decision was supported by medical literature detailing a correlation between an infant’s height and brain weight. Given the widely varying estimates of Monica’s height, the special master did not err by choosing an estimate between the minimum and maximum heights recorded. We cannot say that the special master’s careful weighing of this conflicting evidence was “so clearly wrong as to be arbitrary or capricious.” Lampe, 219 F.3d at 1367. Nor can we say that it was arbitrary or capricious for the special master to conclude that Monica’s pre-death behavior and weight of her other organs failed to support Dr. Shane’s encephalopathy diagnosis. The special master’s ultimate conclusion was supported by the testimony of Dr. Gilbert-Barness and Dr. McCusker, who both opined that Monica did not display other characteristic symptoms of encephalopathy, such as vomiting, seizures, or fever. As Dr. Shane admitted, Dr. McCusker was better qualified to offer an opinion on whether Monica’s sleepiness was a normal reaction to the vaccine or the type of somnolence symptomatic of encephalopathy. Dr. McCusker opined that Monica’s pre-death behavior was normal. The special master credited this testimony, as well as the testimony of Monica’s father, who observed no fever, vomiting, or seizures. It is not our role to reweigh the factual evidence or assess whether the special master correctly evaluated the evidence. Munn v. Sec’y of Dep’t of Health & Human Servs., 970 F.2d 863, 871 (Fed.Cir.1992). Accordingly, we hold that the special master’s factual findings were not arbitrary or capricious. II. Evidence of Alternative Causes We must also decide whether it was legal error under 42 U.S.C. § 300aa-13(a)(2)(A) for the special master to consider evidence of alternative causes in evaluating whether a prima facie case has been established in this off-Table case. Specifically, Doe contends that the special master erred when discussing prong two of the Althen test by considering evidence that SIDS, not the hepatitis B vaccine, caused Monica’s death. In this case, both parties presented evidence about an alternative cause of death, sudden infant death as the result of asphyxiation. In his expert report and at the hearing, Dr." }, { "docid": "20649164", "title": "", "text": "effect showing that the vaccination was the reason for the injury; and (3) ... a proximate temporal relationship between the vaccination and injury. Capizzano, 440 F.3d at 1324 (citing Althen v. Sec’y of Health & Human Servs., 418 F.3d 1274, 1278 (Fed.Cir.2005)). Of course, as noted in Shyface, these prongs must cumulatively show that the vaccination was a “but-for” cause of the harm, rather than just an insubstantial contributor in, or one among several possible causes of, the harm. The Special Master applied the tests of Althen and Shyface correctly in this case. Specifically, the Special Master indicated: First, a petitioner must provide a reputable medical theory causally connecting the vaccination and the injury. In fine, can [the] vaceine(s) at issue cause the type of injury alleged? Second, a petitioner must also prove that the vaccine actually caused the alleged symptoms in her particular case. Trial Court Decision, 2004 WL 1717359, at *4 (emphasis in original). The first prong of the Special Master’s test is identical to the first prong of the Althen test. Capizzano, 440 F.3d at 1324 (citing Althen, 418 F.3d at 1278). The Special Master’s inquiry also gave effect to the “logical sequence of cause and effect” at the heart of the second prong of the Althen test. Trial Court Decision, 2004 WL 1717359, at *6 (discussing Dr. Levin’s testimony linking Pafford’s March 1998 vaccinations to the onset of Still’s disease). Most importantly, the second prong of the Special Master’s test in this case restates correctly that the petitioner must show that the vaccine was the “but for” cause of the harm according to Shyface, or in other words, that the vaccine was the “reason for the injury” as stated in the second prong of the Althen test. Finally, the Special Master also required proof of a proximate temporal relationship between Pafford’s vaccinations and the onset of Still’s disease commensurate with the third prong of the Althen test. Trial Court Decision, 2004 WL 1717359, at *9 (“The link missing from Petitioner’s argument ... was the lack of any defined time period in which one would expect to" }, { "docid": "19051028", "title": "", "text": "the fact finder may deem inconclusive and not a demonstration of a ‘logical sequence of cause and effect showing that the vaccination was the reason for the injury.’” 98 Fed.Cl. at 227 (quoting Althen, 418 F.3d at 1278). Petitioner disagrees and asserts that, when read as a whole, his medical records “provide both inferentially and expressly the conclusion that petitioner had a serious and continuing reaction to the Hepatitis A and B vaccines.” Pet’r’s Br. filed May 25, 2011, at 5. Again, petitioner cites stray sentences from various medical reports, disregarding the special master’s observations that such sentences, taken in context, do not support a medical theory of causation. As noted above, the special master determined that none of petitioner’s physicians offered a legally probable medical theory causally connecting the Hepatitis A vaccine to petitioner’s symptoms. Absent such a theory, a logical sequence of cause and effect showing that receipt of the Hepatitis A vaccine led to petitioner’s condition could not be shown. The special master relied on the deficiencies that he observed in the contents of petitioner’s records and not solely on the absence of medical test results. This court concludes that the special master did not apply a standard of medical certainty. Instead, the special master conducted a thor ough review of all evidence and merely noted the absence of test results as one piece of evidence among many that prevented petitioner from satisfying Althen’s second prong. Given the special master’s careful review and application of the appropriate standard, the special master’s ultimate finding that petitioner did not show a logical sequence of cause and effect is neither arbitrary nor capricious. 3. Temporal relationship between Hepatitis A vaccine and injury Petitioner argues that the special master’s conclusion that he failed to show a temporal relationship between the vaccine and injury is arbitrary and capricious. Petitioner received the vaccines at the age of forty-one. His medical history up to that point in time is devoid of the cognitive impairments from which he now suffers. Petitioner also contends that in Veryzer III this court concluded that petitioner had satisfied Althen’s" }, { "docid": "19348913", "title": "", "text": "that in cases where there is little supporting evidence for an expert’s opinion, the special master’s “[a]ssessments as to the reliability of expert testimony often turn on credibility determinations”). Though the special master may have improperly considered Dr. Greenberg’s demeanor, it was not the only factor, or even the most important factor, in the special master’s analysis. To the contrary, the special master articulated a number of factors why Dr. Greenberg’s medical testimony was better supported by sound medical explanation, including the fact that Dr. Greenberg’s testimony candidly and forthrightly incorporated all of the evidence whereas Dr. Steinman largely excluded an important piece of adverse evidence. Thus, even if the special master’s consideration of Dr. Greenberg’s “demeanor” was error, it would rise at most to the level of harmless error. Hines, 940 F.2d at 1526 (finding that it was harmless error for the special master to take judicial notice of a medical textbook’s statement regarding the incubation period of measles, even if unfair to the petitioner, because “the special master’s decision was based on a number of factors and [petitioner had] not shown that reliance on the ... textbook was likely critical to the result”). IV. Next, for Dr. Broekelsehen to recover under the Vaccine Act, he is required to prove by a preponderance of the evidence that the flu vaccine caused his anterior spinal artery syndrome, an off-Table injury. As explained above, the Al-then test requires that Dr. Broekelsehen prove by a preponderance of the evidence: “(1) a medical theory causally connecting the vaccination and the injury; (2) a logical sequence of cause and effect showing that the vaccination was the reason for the injury; and (3) a showing of a proximate temporal relationship between vaccination and injury.” Althen, 418 F.3d at 1278. The special master found that Dr. Broekelsehen did not meet his burden of proving by a preponderance of the evidence a medical theory causally connecting the flu vaccine to anterior spinal artery syndrome. Broekelschen, 2009 WL 440624, at *24, 2009 U.S. Claims LEXIS 137, at *65; Broekelschen, 89 Fed.Cl. at 346. Dr. Broekelsehen does not challenge" }, { "docid": "19348921", "title": "", "text": "illness, injury, condition, or death.” 42 U.S.C. § 300aa-33(5). Petitions for compensation must demonstrate that the claimant sustained “any illness, disability, injury, or condition” caused by a vaccine. 42 U.S.C. § 300aa — 11 (c)(1)(C)(ii)(I). Therefore, even in the absence of a definitively diagnosed injury, claimants such as Broekelschen may experience an illness or disability that, with the proper showing of causation, can meet the criteria for a vaccine-related injury under the Vaccine Act. The majority emphasizes that the parties’ dispute as to the diagnosis makes this case unique and therefore justifies the initial step of determining a diagnosis before applying the Althen test. However, every case is unique and nothing about the facts in this case supports the majority’s unwarranted departure from our precedent. As the special master recognized, the range of symptoms Broekelschen experienced could be explained by either diagnosis, and “determining which condition affects Dr. Broekelschen is one step in determining the cause for Dr. Broekelschen’s condition.” Broekelschen v. Sec’y of Health & Human Servs., No. 07-137V, 2009 WL 440624 at *4 (Fed.Cl.Sp.Mstr. Feb. 4, 2009). Therefore, the analysis of the diagnosis should have been part of the first prong of the Althen test, which requires a “medical theory causally connecting the vaccination and the injury.” 418 F.3d at 1278. The medical theory proposed by Broekelschen was that his symptoms were caused by the vaccine through the pathway of TM; his theory of causation is therefore inextricably linked to the diagnosis. The special master should have first determined whether Broekelschen demonstrated that it was more likely than not that his symptoms resulted from TM caused by an immune response to the vaccine. Only then should the special master have considered whether the government could show by preponderant evidence that other factors caused the injury, ie., that Broek-elschen’s symptoms were caused by anteri- or spinal artery syndrome unrelated to the influenza vaccine. The majority cites to Doe v. Secretary of Health & Human Services, 601 F.3d 1349 (Fed.Cir.2010), in support of the proposition that the special master appropriately considered the government’s alternative theory of diagnosis prior to applying" }, { "docid": "20221676", "title": "", "text": "over those of Jessie’s treating physicians. See Tr. at 4 (“We[’]re primarily here to hear the expert testimony of Dr. Steinman, Dr. Whitton, and Dr. Sladky.”). In his post-hearing order requesting briefing from the parties, the special master raised the issue of Dr. Wagner’s selective preparation for his testimony, whereas none of the experts retained by the parties were similarly identified as possibly being less than impartial: The parties are encouraged to discuss the weight to be given to Dr. Wagner’s testimony. Dr. Wagner’s opinion was informed by reading the reports of Dr. Steinman, but Dr. Wagner did not read reports from Dr. Whitton and Dr. Sladky. Order of April 22, 2010 at 4. This criticism of Dr. Wagner was again levied in the special master’s opinion, where he found that “Dr. Wagner did not undertake a dispassionate consideration of the material in this case.” Opin. at 299-300. Thus, rather than favoring the opinions of treating physicians, as instructed by Capizzano, 440 F.3d at 1326, the special master appears to have disfavored the opinions of treating physicians. For all of these reasons, the court finds that the special master’s weighing of the opinions of treating physicians as to Althen prong three was not in accordance with law. E. May a Special Master Heighten the Burden of Proof for a Proximate Temporal Relationship, Althen Prong Three? 1. Althen, Pafford and de Bazan The court begins with a brief review of Althen prong three. Petitioner may satisfy this prong if he has shown by a preponderance of the evidence “a proximate temporal relationship between vaccination and injury.” Althen, 418 F.3d at 1278. The phrase “proximate temporal relationship” in Althen prong three has taken on a special sense in Vaccine Act cases. The evidentiary burden has been referred’ to as evidence of a “medically-ac-eeptable temporal relationship,” id. at 1281, or “[ejvidence demonstrating [that] petitioner’s injury occurred within a medically acceptable time frame,” Pafford, 461 F.3d at 1358. Thus, a petitioner must show that the alleged vaccine injury occurred within a medically-acceptable time-frame to satisfy Althen prong three. In the Federal Circuit decision that" }, { "docid": "21212557", "title": "", "text": "Entitlement Decision, the Special Master misapplied the Capizzano/Althen III test, concluding that “[petitioners have not proved that but for Prevnar vaccination [Petitioner] would not have SMEI.” Adams at *16; see Althen III, 418 F.3d at 1278 (“If [petitioner] satisfies [three-prong] burden, she is entitled to recover unless the [government] shows, also by a- preponderance of evidence, that the injury was in fact caused by factors unrelated to the vaccine.”) (citations omitted) (emphasis added). In addition, the Special Master erred in perceiving that her role in Vaccine Act cases is to identify “a medical explanation.” Adams at *13 (“In essence, the Special Master is looking for a medical explanation[.]”). To the contrary, the role of the Special Master is to weigh the evidence proffered by Petitioner of causation in fact and, if a prima facie ease is established, only then to weigh evidence proffered by the Government of alternative causation. See Capizzano, 440 F.3d at 1324 (quoting Althen III, 418 F.3d at 1278). As previously discussed, since Plaintiff satisfied all three required elements of Capizza-no/Althen III, it was appropriate for the Special Master to allow the Government to introduce evidence of alternative causation. In this ease, however, the Government did not do so through Dr. Wiznitzer’s Report or otherwise. Recognizing this failure of proof, early in the evidentiary hearing, the Special Master participated in an ex parte off-the-record discussion with the Government’s expert as to whether Petitioner may have Dravet’s Syndrome. See TR 91-92; see also Pet. Mot. at 6-7. Then, the Special Master distributed an article that she obtained from independent research discussing Dravet’s Syndrome. See Pet. Mot. at 7 (citing Ingrid E. Scheffer, Severe Infantile Epilepsies: Molecular Genetics Challenge Clinical Classification, available at http ¡//brain.oxfordjournals.org/cgi/eontent/full/126/3/513) (“Scheffer Article”). The fact that there was no medical evidence that Petitioner experienced myoclonic seizures typical of Dravet’s Syndrome did not deter the Special Master. See Ex. 4 at 94. When the hearing resumed, the Special Master decided to pursue her diagnosis with Petitioner’s expert: SPECIAL MASTER: I know that Dr. Wiznitzer mentioned this off the record, and he hasn’t testified yet, but I" }, { "docid": "15241078", "title": "", "text": "third hearing, on November 25, 2008, Dr. Kagen testified that Lombardi did not meet the diagnosis for SLE under the criteria set out by the American College of Rheumatology (“ACR”). Dr. Sho-enfeld reiterated his diagnosis of SLE. On January 29, 201Ó, the special master published an opinion denying Lombardi’s entitlement under the Vaccine Act. Doe 60 v. Sec’y of Health & Human Servs., No. 99-W-523, 2010 WL 1506010 (Fed.Cl. Mar. 26, 2010) (“Special Master Op”). The special master conducted a thorough analysis of all the tests performed on Lombardi, and the opinions of the treating physicians as well as the conflicting opinions of the testifying experts. See id. at *12-33. The special master concluded that petitioner was not entitled to compensation because she had “not established that she suffers from any of the three conditions that provide the basis for her experts’ opinions.” Id. at *1. The special master stated that under our holding in Althen v. Secretary of Health & Human Services, 418 F.3d 1274, 1278 (Fed.Cir.2005), when a petitioner claims compensation for an injury not listed on the Vaccine Injury table, the petitioner must establish three elements, the second being a logical sequence of cause and effect showing that the vaccination was the reason for the injury. However, because the special master found that Lombardi had failed to establish that she suffered from any specific injury, he found no need to determine whether the claimed conditions were caused by vaccination under the second prong of Althen. Special Master Op. at *12. With regard to transverse myelitis, the special master concluded that Lombardi’s clinical presentation between November 1997 and April 1998 was not consistent with the signs and symptoms of transverse myelitis. Id. at *17. He noted that her treating doctors, including her treating neurologist, had never diagnosed her with transverse myelitis and that the 2006 MRI, the only imaging study done on Lombardi, did not counter the conclusions reached by her treating doctors. Id. On Lombardi’s second claim, the special master acknowledged that Lombardi had experienced some of the symptoms attributable to chronic fatigue syndrome, but also found" }, { "docid": "19032603", "title": "", "text": "propositions. First, when people are ill, they see a medical professional. Second, when ill people see a doctor, they report all of their problems to the doctor. Third, having heard about the symptoms, the doctor records what he (or she) was told. Shapiro, 2011 WL 1897650 at *4. While the court questions the accuracy of this statement as an evidentiary standard, it appears that the Special Master did not apply it consistently in this case. Thus, he seemed to overlook the fact that, inconsistent with the first of the three propositions listed above, there was no record indicating that Ms. Shapiro saw a medical professional in October 1991, when, according to the Special Master, she was ill. . When a petitioner has suffered an off-Table injury, Althen requires him or her to: show by preponderant evidence that the vaccination brought about her injury by providing: (1) a medical theory causally connecting the vaccination and the injury; (2) a logical sequence of cause and effect showing that the vaccination was the reason for the injury; and (3) a showing of a proximate temporal relationship between vaccination and injury. Althen, 418 F.3d at 1278. . Petitioner would have this court overturn the Special Master's findings based primarily on the contrary conclusion of its undoubtedly qualified expert, Dr. Shoenfeld. However, \"proof of causation entails more than having a well-qualified expert proclaim that the vaccination caused a disease.” Doyle, 92 Fed.Cl. at 8. At oral argument, petitioner also noted that some of the hypothyroidism symptoms that she experienced shortly after receiving the vaccines were also manifestations of her SLE. But, the Special Master found that these symptoms were attributable solely to her thyroid condition (or the treatment thereof) because, inter alia, they abated once petitioner was administered the proper dosage of Synthroid. Shapiro, 2011 WL 1897650, at *15. This finding is supported by the record (particularly, by the testimony of Dr. Ward) and the court sees no basis upon which to disturb it. . This opinion shall be unsealed, as issued, after November 14, 2011, unless the parties, pursuant to Vaccine Rule 18(b), identify" }, { "docid": "15228763", "title": "", "text": "the “lack of any detected evidence of ... inflammation” in petitioner’s brain or spinal cord, as well as the widespread skepticism of petitioner’s treating physicians regarding the veracity of her complaints. Jarvis, 2010 WL 5601960, at *14-15. In light of this, the Chief Special Master found petitioner’s “proffered theory of vaccine-related causation ... wanting” because it was supported only by Dr. Tornatore’s “bare assertion” that “a neurological injury ... could occur and persist over time with scant evidence of neurological impairment.” Id. at *15. Accordingly, the Chief Special Master concluded that petitioner failed to satisfy the first Al-then prong because “the opinion of causation offered by petitioner’s expert” did not provide “a scientifically sound and reliable theory of causation.” Id. (citing, inter alia, Gen. Elec. Co. v. Joiner, 522 U.S. 136, 146, 118 S.Ct. 512, 139 L.Ed.2d 508 (1997) (providing that, under the Daubert framework, the trier of fact may reject expert testimony “that is connected to existing data only by the ipse dixit of the expert”); Terran, 195 F.3d at 1316). With respect to the second prong of the Althen test — which requires a “logical sequence of cause and effect,” Althen, 418 F.3d at 1278 — the Chief Special Master recognized that the results of petitioner’s initial blood testing, two days after her second vaccination, were slightly abnormal. Jarvis, 2010 WL 5601960, at *16. However, the Chief Special Master juxtaposed “this circumscribed evidence” against the “absence of any other objective evidence” of injury “through either laboratory testing or on magnetic resonance imaging,” and against the documented skepticism of petitioner’s treating physicians regarding the veracity of her reported symptoms. Id. The Chief Special Master concluded that petitioner “failed to establish prong two of Althen ” because she failed to make “the requisite ‘more likely than not’ showing ... that she suffered the alleged injury.” Id. at *17. Having thus concluded that petitioner failed to establish a prima facie case of entitlement to compensation, the Chief Special Master dismissed the petition. Id. D. Petitioner’s Motion for Review As noted above, petitioner’s motion for review recites only one numbered objection to" }, { "docid": "19348892", "title": "", "text": "Claims LEXIS 137 (Fed.Cl. Feb. 4, 2009) (special master’s published decision denying entitlement). The case was assigned to a special master from the Court of Federal Claims. Because transverse myelitis is an off-Table injury, Dr. Broekelschen was required to prove causation in fact. See 42 U.S.C. § 300aa-11(c)(1)(C)(ii). Both parties retained well-qualified experts, who submitted reports and testified at a hearing held by the special master regarding whether the flu vaccine caused Dr. Broekelschen’s injury. Dr. Lawrence Steinman, Dr. Broekelschen’s expert, is a Board Certified Neurologist, a Professor of Neurology and Pediatrics, and chair of the Program in Immunology at Stanford University. He has over thirty years of medical experience in neurology and has dealt with transverse myelitis as a result of vaccinations several times a year as either a treating physician or in departmental conferences. Dr. Steinman has served on expert and advisory panels relating to vaccination matters as well as received vai'ious awards for research on the nervous system. He has also authored over 300 articles relating to how the immune system attacks the nervous system with about twenty articles directly dealing with vaccines. Dr. Steinman opined that the flu vaccine caused Dr. Broekelschen to suffer transverse myelitis. Dr. Benjamin Greenberg, the government’s expert, disagreed and opined that Dr. Broekelschen suffered from anterior spinal artery syndrome, which was not caused by the flu vaccine. At the time of the hearing, Dr. Greenberg was an assistant professor in the Department of Neurology at Johns Plopkins School of Medicine. Dr. Greenberg was also the co-director of the Johns Hopkins Transverse Myelitis Center, the only center in the world dedicated to transverse myelitis. As of July 2007, the Johns Hopkins Transverse Myelitis Center had seen over 1200 patients with spinal cord disease. Also, the Transverse Myelitis Center has done extensive research on the diagnosis, treatment, and long-term care of patients with transverse myelitis. As a result of his position, Dr. Greenberg worked with patients suffering from transverse myelitis on a daily basis. On February 4, 2009, the special master published a detailed explanation for his decision denying Dr. Broekelschen entitlement under" }, { "docid": "7523604", "title": "", "text": "injured claimants.” 418 F.3d at 1278-80. The legal standard in Kelley does not employ the Stevens test facially, see Resp’t’s Supp. Memo, at 4 (“[The chief spe cial master did not apply] any per se rule that petitioner must supply objective confirmation in the medical literature to prevail.”), but it nonetheless applies the requirement that conclusive medical literature support causation in off-Table cases-a requirement squarely rejected in Althen, see 418 F.3d at 1281-82 (“[T]he Vaccine Act does not require [petitioners] to provide medical documentation of plausibility, ... [and, a fortiori,] cannot require [them] to demonstrate that [their] specific injury is recognized by said medical documentation of plausibility.”). Respondent argues that it is the chief special master’s “factual findings” regarding the credibility of petitioner’s expert witness that are at issue, see Resp. at 5; Resp’t’s Supp. Memo, at 4, and that the arbitrary and capricious standard applies, see Althen, 418 F.3d at 1278-80 (observing that the Court of Federal Claims and the Federal Circuit “review the special master’s factual findings under the arbitrary and capricious standard”). The court disagrees. The decision in Kelley discredits the testimony of Dr. Tornatore for its causal analogy of GBS to CIDP “in the face of medical literature indicating strong differences in antecedent events,” 2005 WL 1125671, at *11 (citation and internal quotation omitted) (emphasis added), not because of any defect in Dr. Tomatore’s credentials, see, e.g., id. at *7 & n. 14 (observing that petitioner’s expert, a board-certified neurologist and Georgetown University Medical Center professor, “is clearly well qualified”); id. at *14 n. 26 (noting that Dr. Tomatore’s testimony at the supplemental hearing was “very helpful”). Indeed, Dr. Tornatore’s assertions were deemed “dubious” because they “strayed from accepted medical princip[le]s” set forth in the literature, id. at *7, or drew from animal studies, which “do not translate exactly into humans,” id. at *9, or cited no articles that “supported a known studied relationship between CIDP and the tetanus vaccination,” id. at *14 n. 25 (citation and internal quotation omitted) (emphasis added). The chief special master similarly rejected direct references to vaccine causation in petitioner’s medical" }, { "docid": "20221702", "title": "", "text": "case is REMANDED to the special master, pursuant to Vaccine Rule 27(c), for proceedings in accordance with the principles of law and the instructions set forth in this opinion; and (4) The parties shall separately FILE any proposed redactions to this opinion, with the text to be redacted clearly marked out or otherwise indicated in brackets, on or before October 19, 2012. . The court cites not to the Westlaw version of this opinion, but follows the practice of the parties and cites to the opinion version (Opin.) available on this court's website. . Hereinafter the court will refer to Mr. Contreras, now age twenty-two, as \"petitioner” or \"Jessie,” because he was thirteen years old at the time of his alleged vaccine injury. . Althen v. Sec'y of Health & Human Servs., 418 F.3d 1274, 1278 (Fed.Cir.2005). The three Al-then prongs provide elements of proof for a pri-ma facie case that a vaccine caused a petitioner’s illness: (1) a medical theory causally connecting the vaccination and the injury; (2) a logical sequence of cause and effect showing that the vaccination was the reason for the injury; and (3) a showing of a proximate temporal relationship between vaccination and injury. Id. . One of petitioner’s experts died in 2010. His declining health prevented him from testifying for Jessie at a hearing held earlier that year, and he was, of course, unavailable to testify at a second hearing held in 2011. . One of the difficulties in interpreting such a record is to distinguish between relevant science and irrelevant science. The special master's unenviable task was to obtain sufficient expert testimony to interpret dense and highly-technical articles in scientific journals and to decide whether these articles supported the parties’ arguments. The court finds no fault in the special master's overall approach, during his management of this case, to understanding some of the articles submitted by the parties. As petitioner suggests, however, the special master's \"passion for scientific explanation” may have led him to heighten the standard of proof required to establish causation in a vaccine case. Petitioner's Reply (P's Reply) at 7." }, { "docid": "15228762", "title": "", "text": "from a vaccine-related injury. Id. at *17. Significantly, deep skepticism as to the existence of petitioner’s alleged neurological injury pervaded the Chief Special Master’s opinion. See id. at *1-3, *14-17. Nevertheless, the Chief Special Master proceeded to apply the Althen test for causation. See id. at *14-17. The Chief Special Master credited Dr. Tor-natore’s unrebutted testimony that “two weeks between a precipitating event — such as the vaccination in th[is] case — and the appearance of an immune-mediated neurological injury falls within the ‘right’ time frame medically.” Id. at *17. Accordingly, the Chief Special Master concluded that petitioner established “an appropriate temporal relationship ... between her vaccination and her alleged injury,” thus satisfying the third prong of the Althen test. Id. However, the Chief Special Master concluded that petitioner failed to satisfy the first two prongs of the Althen test. Id. Under the first prong, petitioner needed to establish a medical theory causally connecting her alleged neurological injury to the hepatitis B vaccination. Althen, 418 F.3d at 1278. The Chief Special Master cited, inter alia, the “lack of any detected evidence of ... inflammation” in petitioner’s brain or spinal cord, as well as the widespread skepticism of petitioner’s treating physicians regarding the veracity of her complaints. Jarvis, 2010 WL 5601960, at *14-15. In light of this, the Chief Special Master found petitioner’s “proffered theory of vaccine-related causation ... wanting” because it was supported only by Dr. Tornatore’s “bare assertion” that “a neurological injury ... could occur and persist over time with scant evidence of neurological impairment.” Id. at *15. Accordingly, the Chief Special Master concluded that petitioner failed to satisfy the first Al-then prong because “the opinion of causation offered by petitioner’s expert” did not provide “a scientifically sound and reliable theory of causation.” Id. (citing, inter alia, Gen. Elec. Co. v. Joiner, 522 U.S. 136, 146, 118 S.Ct. 512, 139 L.Ed.2d 508 (1997) (providing that, under the Daubert framework, the trier of fact may reject expert testimony “that is connected to existing data only by the ipse dixit of the expert”); Terran, 195 F.3d at 1316). With respect to" }, { "docid": "22338043", "title": "", "text": "suffers from an attention deficit disorder, delayed speech, aggressive behavior, and head banging. The Bradleys’ Petition for Compensation was filed on September 30, 1990. In response, the Secretary filed a report recommending denial of compensation. An evi-dentiary hearing was held on June 12,1991. Mrs. Bradley testified as to Rachel’s symptoms during the first three days following the DPT vaccination, as set forth above. Two medical experts also testified on behalf of Rachel. Dr. Tilelli, a pediatrician, testified that, based upon Mrs. Bradley’s testimony and Rachel’s medical records since birth, it was his opinion that Rachel had suffered a hypotonic-hyporesponsive episode (HHE) due to the DPT vaccine. Dr. Morrell, a neurologist, testified that, based on all of the same evidence, it was his opinion that Rachel had suffered “an encephalopathy with seizure activity” due to the vaccine. Both HHEs and encephalopathy are Table Injuries, for which compensation is due if certain conditions are met. In contrast to the Bradleys’ experts, Dr. Baumann, a pediatric neurologist appearing as the Secretary’s medical expert, testi fied that he did not believe that Rachel had suffered any of the Table Injuries because the medical records made no mention of any such symptoms and Mrs. Bradley’s testimony did not, in Dr. Baumann’s view, describe the type and extent of symptoma-tology that would indicate the existence of a Table Injury. Furthermore, Dr. Bau-mann believed that all of the symptoms described by Mrs. Bradley were consistent with Rachel’s high fever, which, by itself, is not indicative of a Table Injury. The special master ruled, in an oral decision on June 12, 1991, that Rachel Bradley had “not been able to show the existence of a table injury or causation by a preponderance of the evidence.” June 12, 1991 Hearing Transcript (Tr.) at 136. In reaching this conclusion, the special master reasoned that, although he believed that Mrs. Bradley was telling the truth as she remembered events, her recollections were not credible and persuasive in certain respects because (a) there were no corroborating, contemporary medical records and (b) the experts’ testimony conflicted as to the meaning of the events" }, { "docid": "19348891", "title": "", "text": "Noort and Dr. Storch’s conclusions, Dr. Broekelschen presented symptoms that are characteristic of both anterior spinal artery syndrome, a vascular condition, and transverse myelitis, an inflammatory response. Both injui-ies can cause severe neck or lower back pain and paralysis of the bladder, bowels, and extremities. One distinguishing symptom, however, is that proprioception is affected in transverse myelitis, but not in anterior spinal artery syndrome. In addition, if a patient suffers from transverse myelitis, doctors would typically observe elevated levels of white blood cells and IgG in the cerebro-spinal fluid because transverse myelitis is often caused by an immune response. On the other hand, if a patient suffered from anterior spinal artery syndrome, an angiogram, which is a visualization of blood flow, would evidence an occlusion in the anterior spinal artery. III. Dr. Broekelschen filed a petition in the Court of Federal Claims seeking compensation under the Vaccine Act alleging that the flu vaccine caused him to suffer transverse myelitis. See Broekelschen v. Sec’y of Health & Human Servs., No. 07-137V, 2009 WL 440624, 2009 U.S. Claims LEXIS 137 (Fed.Cl. Feb. 4, 2009) (special master’s published decision denying entitlement). The case was assigned to a special master from the Court of Federal Claims. Because transverse myelitis is an off-Table injury, Dr. Broekelschen was required to prove causation in fact. See 42 U.S.C. § 300aa-11(c)(1)(C)(ii). Both parties retained well-qualified experts, who submitted reports and testified at a hearing held by the special master regarding whether the flu vaccine caused Dr. Broekelschen’s injury. Dr. Lawrence Steinman, Dr. Broekelschen’s expert, is a Board Certified Neurologist, a Professor of Neurology and Pediatrics, and chair of the Program in Immunology at Stanford University. He has over thirty years of medical experience in neurology and has dealt with transverse myelitis as a result of vaccinations several times a year as either a treating physician or in departmental conferences. Dr. Steinman has served on expert and advisory panels relating to vaccination matters as well as received vai'ious awards for research on the nervous system. He has also authored over 300 articles relating to how the immune system attacks" }, { "docid": "10309395", "title": "", "text": "ORDER DISMISSING PETITIONERS’ MOTION FOR REVIEW WILLIAMS, Judge. This matter comes before the Court on Petitioners’ Motion for Review of the special master’s October 9, 2003 Order rejecting an expert opinion and dismissing one of Petitioners’ three claims. Weiss v. Secretary of Health and Human Services, No. 03-190V, 2003 WL 22853059, at *4 (Fed.Cl. Oct. 9, 2003) (order of special master). Because the special master’s October 9, 2003 Order is not a final decision within the meaning of the National Childhood Vaccine Injury Compensation Act (the Vaccine Act), this Court lacks jurisdiction to review the order at this juncture of the proceeding. As such, the Court dismisses the petition for review without prejudice. BACKGROUND In the challenged order, denominated a “preliminary ruling,” the special master rejected the opinion of Petitioners’ expert, Dr. Geier, that Petitioners’ son, Christopher, had an acute encephalopathy beginning on the fourteenth day after his receipt of the measles, mumps, and rubella (MMR) vaccination. The special master reasoned that this expert, a geneticist and obstetrician, was not qualified to give a neurological diagnosis. Further, because Christopher’s contemporaneous medical records indicated that he was alert and in no acute distress at the pertinent time, the special master concluded that Christopher did not have a Table encephalopathy or encephalitis and ordered that portions of Dr. Geier’s affidavits discussing these illnesses be stricken from the record as irrelevant. The special master dismissed Petitioners’ claim of a Table encephalopathy “for failure to prove a prima facie case of an acute encephalopathy within 5-15 days of Christopher’s MMR vaccination.” However, the special master instructed the petitioners that they could proceed on their alternate allegations, “a Table measles infection and causation in fact autism from either MMR or thimerosal-containing vaccines.” This October 9 Order did not contain findings of fact or conclusions of law and did not purport to address a motion to dismiss or a motion for summary judgment. Petitioners have sought review of this order on the ground that the special master improperly substituted her own opinion for that of Dr. Geier when there was no contradictory evidence and his opinions" } ]

[ { "docid": "23129676", "title": "", "text": "Justice Thomas delivered the opinion of the Court. Article 17 of the Warsaw Convention (Convention) imposes liability on an air carrier for a passenger’s death or bodily injury caused by an “accident” that occurred in connection with an international flight. In Air France v. Saks, 470 U. S. 392 (1985), the Court explained that the term “accident” in the Convention refers to an “unexpected or unusual event or happening that is external to the passenger,” and not to “the passenger’s own internal reaction to the usual, normal, and expected operation of the aircraft.” Id., at 405, 406. The issue we must decide is whether the “accident” condition precedent to air carrier liability under Article 17 is satisfied when the carrier’s unusual and unexpected refusal to assist a passenger is a link in a chain of causation resulting in a passenger’s pre-existing medical condition being aggravated by exposure to a normal condition in the aircraft cabin. We conclude that it is. I The following facts are taken from the District Court’s findings, which, being unchallenged by either party, we accept as true. In December 1997, Dr. Abid Hanson and his wife, Rubina Husain (hereinafter respondent), traveled with their children and another family from San Francisco to Athens and Cairo for a family vacation. During a stopover in New York, Dr. Hanson learned for the first time that petitioner allowed its passengers to smoke on international flights. Because Dr. Hanson had suffered from asthma and was sensitive to secondhand smoke, respondent requested and obtained seats away from the smoking section. Dr. Hanson experienced no problems on the flights to Cairo. For the return flights, Dr. Hanson and respondent arrived early at the Cairo airport in order to request nonsmoking seats. Respondent showed the check-in agent a physician’s letter explaining that Dr. Hanson “has [a] history of recurrent anaphylactic reactions,” App. 81, and asked the agent to ensure that their seats were in the nonsmoking section. The flight to Athens was uneventful. After boarding the plane for the flight to San Francisco, Dr. Hanson and respondent discovered that their seats were located only" } ]

[ { "docid": "18256616", "title": "", "text": "the issue coupled with the ’ unsettled state of the law, a brief recitation of both controlling precedent as well as related domestic cases follows. I. The seminal case on the issue of what constitutes an accident under Article 17 of the Warsaw Convention is Air France v. Saks, 470 U.S. 392, 105 S.Ct. 1338, 84 L.Ed.2d 289. In Saks, an airline passenger became permanently deaf in one ear after experiencing severe pain and pressure in that ear during the plane’s descent into Los Angeles en route from Paris. The plaintiff sued the air carrier under the Warsaw Convention, contending that her injury was the result of an “accident” occurring during her international flight. Justice O’Connor delivered the opinion of the Court and held that Article 17 liability arises only if a passenger’s injury is caused by an “unexpected or unusual event or happening that is external to the passenger.” Id. at 405. The conditions precedent to Article 17 liability are as follows: 1) an unexpected or unusual event; 2) external to the passenger; 3) that causes the plaintiffs injury. See id.; see also Rodriguez, 383 F.3d at 917. Nearly two decades after Saks was decided, the Supreme Court revisited the question of what constitutes an Article 17 “accident.” Husain, 540 U.S. 644, 124 S.Ct. 1221, 157 L.Ed.2d 1146. In Husain, a passenger severely allergic to tobacco smoke suffered a fatal asthma attack after the flight attendant repeatedly refused to assist him in finding a seat further away from the plane’s smoking section. Id. at 653, 124 S.Ct. 1221. With respect to whether the flight crew’s refusal to reseat the decedent was “unusual or unexpected,” the Court expressly declined to decide the question. Id. at 653, 124 S.Ct. 1221. Instead, the Court adopted the district court’s finding that the air crew’s departure from relevant industry standard was unusual or unexpected conduct satisfying part of the first condition precedent. Id. at 652-53, 124 S.Ct. 1221. Next, the Court considered whether inaction can constitute an “event” for purposes of Article 17 liability. The Court rejected Olympic Airways’ argument that only affirmative conduct" }, { "docid": "6586617", "title": "", "text": "1259 (stating that “the Convention functions to protect passengers from the hazards of air travel and also spreads the accident cost of air transportation among all passengers”). Even acknowledging that one of the purposes of the Warsaw Convention is to protect passengers, however, the question remains whether Rodriguez’s injury was caused by an accident within the meaning of the Convention. Rodriguez’s DVT clearly is the type of internal reaction to the normal operation of the aircraft, with no unusual external event, that is not an accident under Saks. Rodriguez also urges an expansive reading of the causal relationship required between the “unexpected or unusual event” and the operation of the aircraft, arguing that Saks left open the question of whether the alleged injury must be causally related to the operation of the aircraft. See Gezzi v. British Airways PLC, 991 F.2d 603, 605 n. 4 (9th Cir.1993) (per curiam) (noting that “[i]t is not clear whether an event’s relationship to the operation of an aircraft is relevant to whether the event is an ‘accident’ ” because Saks “did not state that an ‘accident’ must relate to the operation of an aircraft”). Rodriguez relies on Fulop v. Malev Hungarian Airlines, 175 F.Supp.2d 651 (S.D.N.Y.2001), and the decision of the district court in Husain v. Olympic Airways, 116 F.Supp.2d 1121 (N.D.Cal.2000), aff'd, 316 F.3d 829 (9th Cir.2002), aff'd, 540 U.S. 644, 124 S.Ct. 1221, 157 L.Ed.2d 1146 (2004), both of which discussed the causation issue. Even if we were to adopt a liberal construction of the causal relationship required between the injury and the operation of the aircraft, however, Rodriguez still must show that her injury was caused by an unexpected or unusual event, and this she has not done. See Husain, 540 U.S. at ---, 124 S.Ct. at 1228-29 (stating that “[t]he relevant ‘accident’ inquiry under Saks is whether there is ‘an unexpected or unusual event or happening ’ ” (quoting Saks, 470 U.S. at 405, 105 S.Ct. 1338)). Rodriguez attempts to place her case within the same category as Fulop and Husain, arguing that her DVT was caused by cramped" }, { "docid": "3289185", "title": "", "text": "passenger “if the accident which caused the damage ... took place on board the aircraft or in the course of any of the operations of embarking or disembarking.” 49 U.S.C.A. § 1502 note. Northwest is liable to Fischer under the terms of the Warsaw Convention only if Fischer can prove that an “accident” was the cause of Hawley’s injury. In Air France v. Saks,—U.S.-, 105 S.Ct. 1338, 84 L.Ed.2d 289 (1985), the Supreme Court defined the term accident. The court held that liability under Article 17 of the Warsaw Convention arises only if a passenger’s injury is caused by an unexpected or unusual event or happening that is external to the passenger. The Air France court reasoned that an accident does not cause an injury when an injury indisputably results from a passenger’s own internal reaction to the usual, normal, and expected operation of the aircraft. In the instant case, Hawley’s heart attack and subsequent death were not the result of any unusual or unexpected external event connected with the flight. Hawley’s ill health was an internal disability and was not the result of an unusual or unexpected occurrence connected with the flight. Hawley’s injury does not fall within the scope of injuries contemplated by the Warsaw Convention. Therefore, no accident caused Hawley’s injury and Northwest is not liable under the Warsaw Convention. Fischer’s second argument asserts that the airline’s refusal to aid Hawley after his heart attack was the “accident” that caused the injury. This Court disagrees. The United States Court of Appeals for the Third Circuit rejected this argument in Abramson v. Japan Airlines, Co., Ltd., 739 F.2d 130 (3d Cir.1984). The Abramson court held that a hernia injury not caused by any external events was internal to the passenger and not an accident under Article 17 of the Warsaw Convention. The court also held that the airline’s refusal to aid the passenger after he suffered the hernia attack was not an accident. The Third Circuit found that the failure to aid the stricken passengers was not an occurrence tantamount to other occurrences treated as “accidents” under the" }, { "docid": "8164656", "title": "", "text": "for an emergency landing. (Id.) If the emergency landing is to take place significantly earlier than the originally scheduled landing, the airplane will likely be overweight, and consequently the captain must find an airport that can handle the overweight plane. (Transcript of Trial (“Tr.”), at 195-96.) Such a landing is far riskier because of this extra weight, (Tr., at 196), and as a result, the captain sometimes must dump fuel in order to land safely, although such a procedure requires consultation with air traffic control to avoid interfering with other aircraft or with the area below. (Tr., at 258.) According to the testimony of Malev’s expert witness, Captain Douglas Twinam (“Twinam”), airline industry practice for handling in-flight medical problems suggests that any medical professionals on board be consulted for their medical opinion about the sick passenger’s condition, and such opinions are then taken into account by the captain, who ultimately decides after weighing all of the circumstances whether to divert the plane. (Tr., at 250-51.) Twinam also noted that if a passenger showed signs of distress or was particularly demonstrative about his condition, this behavior could be a notable factor in the captain’s decision-making. (Tr., at 253.) The Court regards Malev’s procedures, as described in its flight manual, to be substantially similar to these industry standards. The Court does not find sufficient evidence in the trial record to persuade it that Malev’s employees materially deviated either from Malev procedures or industry standards in handling Fulop’s medical emergency. After being notified that Fulop was feeling ill, Tolnai told Janos and then made an announcement over the public address system that a patient was sick and a doctor was needed. (Tr., at 130-31.) Lakatos responded to the request for a physician, and went to examine Fulop. Lakatos testified that he found Fulop’s vital signs to be “normal,” with a normal heart rhythm and pulse, and did not observe Fulop sweating or having difficulty breathing. (Deposition of Tamas Lakatos, M.D., dated July 25, 2002 (“Lakatos Dep.”), at 17, 48-49.) Lakatos then injected Fulop with a pain reliever from the on-board medical kit, and" }, { "docid": "8164665", "title": "", "text": "indicating that a dire emergency demanding such an extraordinary response was involved. Moreover, Fulop’s single request to one crew member, not specifically adopted or endorsed by the physician who assessed his medical condition, is not sufficient to establish an urgent matter, and his failure to repeat himself could have been reasonably interpreted by others on board either as a change of mind or as a signal that his condition had improved or was not sufficiently severe to begin with. Consequently, the Court is not persuaded that Malev ignored Fulop’s requests for a diversion in a manner that violated its own policies or procedures or any relevant industry standard. The Court also finds that Plaintiffs’ claim of loss of consortium was not supported by any testimony from Phillips or any other evidence from Plaintiffs. Thus, the Court finds no grounds on the record to support such a claim. III. ORDER For the reasons discussed above, it is hereby ORDERED that the Clerk of Court enter judgment in favor of Defendant Malev Hungarian Airlines. The Clerk of Court is directed to close this case. SO ORDERED. . The decision is reported as Fulop v. Malev Hungarian Airlines, 175 F.Supp.2d 651 (S.D.N.Y.2001). . Among other provisions, the Convention allows passengers injured or killed in an airplane accident to recover damages from the air carrier: The carrier shall be liable for damage sustained in the event of the death or wounding of a passenger or any other bodily injury suffered by a passenger, if the accident which caused the damage so sustained took place on board the aircraft or in the course of any of the operations of embarking or disembarking. Warsaw Convention art. 17. . The evidence indicates that the announcement here was actually made by Tolnai. The Court does not regard such a departure from Malev’s guidelines to be sufficiently material to support a finding of liability. . Under the preponderance of the evidence standard, when the Court is faced with two theories equally supportable by the record, die Plaintiff's theory is not accepted because the burden of proof has not been" }, { "docid": "19967810", "title": "", "text": "persons suffered during international air travel and provides: The carrier shall be liable for damage sustained in the event of the death or wounding of a passenger or any other bodily injury suffered by a passenger, if the accident which caused the damage so sustained took place on board the aircraft or in the course of any of the operations of embarking or disembarking. Warsaw Convention, Art. 17. The Convention itself does not define “accident,” but the Supreme Court did in Air France v. Saks, 470 U.S. 392, 105 S.Ct. 1338, 84 L.Ed.2d 289 (1985). An “accident” is an “unexpected or unusual event or happening that is external to the passenger.” Id. at 405, 105 S.Ct. 1338. Although “[t]his definition should be flexibly applied after assessment of all the circumstances surrounding a passenger’s injuries,” id., “when the injury indisputably results from the passenger’s own internal reaction to the usual, normal, and expected operation of the aircraft, it has not been caused by an accident, and Article 17 ... cannot apply,” id. at 406. In turn, the Court focused on the meaning of “event” in Olympic Airways v. Husain, 540 U.S. 644, 124 S.Ct. 1221, 157 L.Ed.2d 1146 (2004). There, a passenger and his wife were seated near the smoking section. The passenger had a history of anaphylactic reactions to smoke and asked a flight attendant to be moved away from it. The crew refused the request, and the passenger died in an apparent reaction to the smoke in flight. Even though the conduct amounted to inaction, the Court concluded that it could nevertheless be an “event” because “[t]he rejection of an explicit request for assistance would be an ‘event’ or ‘happening’ under the ordinary and usual definitions of these terms.” Id. at 655,124 S.Ct. 1221. Based largely on this rationale, passengers here contend that it was equally unexpected and unusual for air carriers not to warn effectively about DVT because the airlines had been “requested” to do so by IATA, the English House of Lords, and airline doctors. However, an airline’s failure to warn a passenger about DVT is not" }, { "docid": "17069228", "title": "", "text": "Convention. See Pflug v. Egyptair Corp., 961 F.2d 26, 29 (2d Cir.1992). All state law claims that fall within the scope of the Convention are preempted. See In re Air Disaster at Lockerbie, Scotland, 928 F.2d 1267, 1273 (2d Cir.1991). Article 17 of the Convention provides: The carrier shall be liable for damage sustained in the event of the death or wounding of a passenger or any other bodily injury suffered by a passenger, if the accident which caused the damage so sustained took place on board the aircraft or in the course of any of the operations of embarking or disembarking. 49 U.S.C. § 40105 note (emphasis added). A claim falls within the scope of this provision if the “passenger’s injury is caused by an unexpected or unusual event or happening that is external to the passenger.” Air France v. Saks, 470 U.S. 392, 405, 105 S.Ct. 1338, 1345, 84 L.Ed.2d 289 (1985). It is enough if in the chain of causation there is “some link ” that was an unusual or unexpected event external to the passenger. Id. at 406, 105 S.Ct. at 1345. The district court identified the scalding as the \"accident\" under the Warsaw Convention. On appeal, the plaintiffs cast their claims chiefly in terms of what happened afterward-the tortious refusal of medical care-and argue that such claims do not arise out of the normal operation of aircraft, and in any event are not accidental in nature Plaintiffs rely on a line of cases in which the tortious failure of airlines to give medical aid to passengers suffering health emergencies was held to fall outside the Warsaw Convention. See, e.g., Abramson v. Japan Airlines Co., 739 F.2d 130, 133 (3d Cir.1984) (preexisting hiatal hernia); Tandon v. United Air Lines, 926 F.Supp. 366, 369-70 (S.D.N.Y.1996) (heart attack); Walker v. Eastern Air Lines, Inc., 775 F.Supp. 111, 114 (S.D.N.Y.1991) (asthma attack); Fischer v. Northwest Airlines, Inc., 623 F.Supp. 1064, 1065 (N.D.Ill.1985) (heart attack). Judge Cedarbaum distinguished these cases on the valid ground that all the claims asserted on behalf of Penina and her mother arose from the scalding" }, { "docid": "17069229", "title": "", "text": "external to the passenger. Id. at 406, 105 S.Ct. at 1345. The district court identified the scalding as the \"accident\" under the Warsaw Convention. On appeal, the plaintiffs cast their claims chiefly in terms of what happened afterward-the tortious refusal of medical care-and argue that such claims do not arise out of the normal operation of aircraft, and in any event are not accidental in nature Plaintiffs rely on a line of cases in which the tortious failure of airlines to give medical aid to passengers suffering health emergencies was held to fall outside the Warsaw Convention. See, e.g., Abramson v. Japan Airlines Co., 739 F.2d 130, 133 (3d Cir.1984) (preexisting hiatal hernia); Tandon v. United Air Lines, 926 F.Supp. 366, 369-70 (S.D.N.Y.1996) (heart attack); Walker v. Eastern Air Lines, Inc., 775 F.Supp. 111, 114 (S.D.N.Y.1991) (asthma attack); Fischer v. Northwest Airlines, Inc., 623 F.Supp. 1064, 1065 (N.D.Ill.1985) (heart attack). Judge Cedarbaum distinguished these cases on the valid ground that all the claims asserted on behalf of Penina and her mother arose from the scalding by a flight attendant-an unexpected, unusual event that was external to both Fishmans. Her reasoning, which we approve, was as follows: The underpinning of the claims of both mother and child is the scalding of Penina by a flight attendant, an unexpected event that was external to both Fishmans. The precipitating cause, the “accident,” cannot be artificially separated from its results as Fishman attempts to do in order to avoid the Warsaw Convention. Because Peni-na’s injuries and Michelle’s were caused by an “accident” within the meaning of the Warsaw Convention, the Convention provides the exclusive remedy and the state law claims are preempted. Fishman, 938 F.Supp. at 230 (emphasis added; citation omitted). Plaintiffs seize on and dispute the court’s observation that “Penina had no pre-existing condition,”’ and point to record facts that Penina suffered serial colds and ear infections, and had narrow eustachian tubes, all of which predisposed her to earache caused by the pressure change of the descent at Orly. However, we agree with Judge Cedarbaum that the injury here is not the earache," }, { "docid": "6586623", "title": "", "text": "international airlines provided information and instructions to passengers about DVT”). We thus need not decide whether an airline’s failure to warn of DVT can constitute an accident for purposes of Article 17. We hold only that Rodriguez’s development of the DVT was not an accident under the Warsaw Convention, and that Rodriguez has failed to raise a genuine issue of material fact regarding whether Air New Zea-land departed from industry custom. The judgment of the district court accordingly is AFFIRMED. . DVT is a condition that occurs when a blood clot forms in a deep vein. See http: //www.nlm.nih.gov/medlineplus/ency/ article/000156.htm. . Her speech returned and, because her complaint does not allege any permanent damage to her arm, presumably, that ability also returned. . The district court did not address Rodriguez’s allegation that Air New Zealand engaged in willful misconduct by failing to warn passengers of the risks of DVT. An airline's liability for willful misconduct is governed by Article 25 of the Warsaw Convention, which lifts the limitation on liability for an accident that is imposed by Article 22(1) of the Convention. See Warsaw Convention, arts. 17, 22, 25. . Thrombophlebitis is the \"inflammation of a vein with the formation of a thrombus,” which is itself a \"clot of blood formed within a blood vessel and remaining attached to its place of origin.” Webster’s New Collegiate Dictionary 1207 (1979). . After a bench trial on the issue, the court concluded that the air carrier did not violate its own policies or procedures or any industry standard and consequently entered judgment in favor of the air carrier. Fulop v. Malev Hungarian Airlines, 244 F.Supp.2d 217 (S.D.N.Y.2003). . The Court did not “dispositively determine whether the flight attendant’s conduct quali-fled as 'unusual or unexpected' under Sales,” 540 U.S. at -, 124 S.Ct. at 1227, because the airline did not raise the issue on appeal. Id. Thus, for purposes of the opinion the Court assumed that the flight attendant's conduct was an unexpected or unusual event external to the passenger and held the airline liable. Id." }, { "docid": "6586618", "title": "", "text": "because Saks “did not state that an ‘accident’ must relate to the operation of an aircraft”). Rodriguez relies on Fulop v. Malev Hungarian Airlines, 175 F.Supp.2d 651 (S.D.N.Y.2001), and the decision of the district court in Husain v. Olympic Airways, 116 F.Supp.2d 1121 (N.D.Cal.2000), aff'd, 316 F.3d 829 (9th Cir.2002), aff'd, 540 U.S. 644, 124 S.Ct. 1221, 157 L.Ed.2d 1146 (2004), both of which discussed the causation issue. Even if we were to adopt a liberal construction of the causal relationship required between the injury and the operation of the aircraft, however, Rodriguez still must show that her injury was caused by an unexpected or unusual event, and this she has not done. See Husain, 540 U.S. at ---, 124 S.Ct. at 1228-29 (stating that “[t]he relevant ‘accident’ inquiry under Saks is whether there is ‘an unexpected or unusual event or happening ’ ” (quoting Saks, 470 U.S. at 405, 105 S.Ct. 1338)). Rodriguez attempts to place her case within the same category as Fulop and Husain, arguing that her DVT was caused by cramped seating conditions and by Air New Zealand’s failure to warn of the risks of DVT. Her situation, however, is distinguishable from both Fulop and Husain. In Fulop, the court reasoned that the flight crew’s decision not to divert the aircraft following the plaintiffs heart attack could constitute an “accident” if their actions failed to comply with the airline’s operational standards. Fulop, 175 F.Supp.2d at 664-66. In Husain, the airline was held liable for the passenger’s death following an asthma attack after the flight attendant repeatedly refused to move the passenger from near a smoking section despite numerous requests. Husain, 540 U.S. at ---, 124 S.Ct. at 1226-30. Both Fulop and Husain involved a response by the flight crew to the passenger’s medical condition. By contrast, in the instant case, there was no response by the flight crew that may or may not have violated industry standards. Rather, the only event was Rodriguez’s development of the DVT. Consequently, there was no event external to the passenger, let alone an unusual or unexpected event. Under Saks, therefore," }, { "docid": "9790756", "title": "", "text": "or unintended event.” Id. The Court noted, accordingly, that an accident under article 17 is an “unexpected or unusual event....” Id. The Convention speaks of an “accident which caused” an injury rather than an accident that is an injury. Id. at 398, 105 S.Ct. 1338. Accordingly, a qualifying “unusual or unexpected event” must be distinct from “the passenger’s own internal reaction to the usual, normal, and expected operation of the aircraft.” Id. at 405, 406, 105 S.Ct. 1338. For instance, where normal pressurization of the aircraft hull caused hearing damages to an unusually sensitive passenger, the occurrence of the injury was not an “accident,” however unusual or unexpected. Id. An “unusual or unexpected event” that qualifies under article 17 must be part of the “chain of causes” leading to an injury. Id. at 406, 105 S.Ct. 1338. So, it need not account wholly for the injury but must have been a significant part of the cause. In Olympic Airways v. Husain, - U.S. -, 124 S.Ct. 1221, 1227-30, 157 L.Ed.2d 1146 (2004), the Court concluded that, under some circumstances, an “accident” may constitute an omission or refusal to act. In Husain, a passenger with an allergy to smoke asked to be reseated when smoke from another section of the plane impinged his seat in a nominally smoke-free area. The crew refused three times to reseat him, even though other seats were available, and as a result of the smoke, he suffered an allergic reaction and died. The Court held that the airline’s refusals constituted a qualifying “unusual or unexpected event” under article 17. Id. at 1230. III. The situation in the instant case differs markedly from that in Husain. Here, no request was made of the airline; the flight staff was entirely passive. The Supreme Court noted that facts similar to those here are at least distinguishable from those in Husain. Justice Scalia’s dissent, id. at 1230, 1231 (Scalia, J., dissenting), pointed to decisions in several foreign jurisdictions concluding that a failure to warn and instruct of DVT risks is not an “event” under article 17. The Court stated that" }, { "docid": "8164653", "title": "", "text": "Not long before the Flight landed at JFK, Fulop again complained of pain. La-katos returned to examine Fulop again, and gave him another painkiller injection. After consulting with Fulop, Malev personnel arranged for an ambulance to meet the aircraft upon its arrival. After the Flight landed, paramedics examined Fulop and took him to Mary Immaculate Hospital in Queens, New York. Two days later, Fulop was transferred to Long Island Jewish Medical Center, where he underwent triple bypass surgery. At Trial, Fulop claimed that upon feeling ill, he asked a Malev crew member to divert the Flight to England because he noticed on the plane’s map locator screen that the Flight was then close to England. In contrast, Malev claimed that Tolnai raised the possibility with Fulop and Laka-tos of diverting the Flight to land at an airport in Europe, but that both Fulop and Lakatos felt a diversion was unnecessary. Fulop claims that this failure to divert caused permanent damage to his heart that would not have occurred had Malev diverted the Flight and thus enabled him to obtain proper medical treatment sooner, and that by failing to divert, Malev violated both its own procedures and industry standards for dealing with such a medical emergency. II. DISCUSSION In assessing Malev’s liability under the standard adopted in the earlier Decision, the Court must first determine what policies and procedures govern Malev and the rest of the airline industry in responding to an in-flight medical emergency such as the one here at issue, and then decide whether in dealing with Fulop’s condition Malev’s employees violated any such applicable standards. In its Decision, this Court found that “aberrant conduct of Ma-lev’s employees in handling the occurrence, the failures of which aggravated Fulop’s initial heart attack,” could be viewed as an “unusual or unexpected event or happening,” thus qualifying as an “accident” under Article 17 of the Convention for which Malev would be liable for any damage sustained as a result. Fulop, 175 F.Supp.2d at 663. On the basis of the Trial testimony and corresponding record, this Court is not persuaded that Plaintiffs have" }, { "docid": "6586619", "title": "", "text": "seating conditions and by Air New Zealand’s failure to warn of the risks of DVT. Her situation, however, is distinguishable from both Fulop and Husain. In Fulop, the court reasoned that the flight crew’s decision not to divert the aircraft following the plaintiffs heart attack could constitute an “accident” if their actions failed to comply with the airline’s operational standards. Fulop, 175 F.Supp.2d at 664-66. In Husain, the airline was held liable for the passenger’s death following an asthma attack after the flight attendant repeatedly refused to move the passenger from near a smoking section despite numerous requests. Husain, 540 U.S. at ---, 124 S.Ct. at 1226-30. Both Fulop and Husain involved a response by the flight crew to the passenger’s medical condition. By contrast, in the instant case, there was no response by the flight crew that may or may not have violated industry standards. Rather, the only event was Rodriguez’s development of the DVT. Consequently, there was no event external to the passenger, let alone an unusual or unexpected event. Under Saks, therefore, there was no accident for purposes of Article 17. In the hearing before the district court on Air New Zealand’s summary judgment motion, Rodriguez shifted the focus of her case to Air New Zealand’s alleged failure to warn of the risk of DVT. Rodriguez, however, has submitted no evidence to raise a genuine issue of material fact as to whether there was either a clear industry standard or an airline policy at the time regarding DVT warnings. Although Rodriguez submitted numerous exhibits, such as newspaper articles, scientific articles, and in-flight magazines, she submitted no information regarding whether there was either an industry practice or an Air New Zealand policy to warn of DVT at the time of her flight. The evidence she presented goes to what the airline industry allegedly knew or should have known about the connection between long flights and the risk of DVT and what steps the industry should have taken. However, none of the evidence she submitted addresses whether Air New Zealand failed to comply with its own policy or with" }, { "docid": "8164649", "title": "", "text": "DECISION AND ORDER MARRERO, District Judge. Plaintiffs Joseph Fulop (“Fulop”) and his wife, Wanda Phillips (“Phillips,” and together with Fulop, “Plaintiffs”) instituted this action under the Warsaw Convention (the “Convention”) to recover damages for injuries Fulop allegedly sustained when he suffered a heart attack aboard an international flight operated by defendant Malev Hungarian Airlines (“Malev”). The Court granted Malev’s motion for summary judgment in part and denied it in part in a Decision and Order dated October 29, 2001 (the “Decision”), finding that (i) the unexpected event here that caused an “accident,” as defined under the Convention, was not Fulop’s heart attack aboard the Malev flight, but rather the alleged aberrant conduct of Malev’s employees in handling the occurrence, (ii) triable issues existed regarding whether Malev deviated from its own policies or procedures or applicable industry practices by failing to divert the plane when informed of Fulop’s medical condition, and (iii) Plaintiffs’ claim of willful misconduct did not create a separate cause of action. The Court held a bench trial (the “Trial”) on these issues on January 6-8, 2003. For the reasons discussed below, the Court renders judgment in favor of Ma-lev. I. FACTS On March 18, 1998, Fulop was a passenger aboard Malev flight number 90 traveling from Budapest, Hungary to John F. Kennedy Airport (“JFK”) in New York (the “Flight”). The flight departed at 11:50 a.m., Budapest Time, and was scheduled to arrive at JFK approximately nine hours later at 3:25 p.m., Eastern Standard Time. Sometime after takeoff, Fulop began experiencing chest pains similar to those he had experienced during a heart attack he had suffered in 1994. In an attempt to alleviate the pain, Fulop took nitroglycerin, which he had carried with him following his first heart attack but which he had not needed to take since. When the pain persisted, Fulop requested assistance from Malev flight attendants and asked if a physician was on the Flight. An announcement was made and Dr. Tamas La-katos (“Lakatos”) responded. Lakatos was an orthopaedic surgeon, not a heart specialist, and had been a licensed physician for fourteen years. He examined" }, { "docid": "19967813", "title": "", "text": "Rodriguez, and Blansett, injuries in both these cases (as in Husain) stemmed from specific health-based requests for help that were unheeded by airline crew. The passenger in Fulop had a heart attack on board, 175 F.Supp.2d at 664; in McCaskey, a stroke, 159 F.Supp.2d at 568; yet in neither case did the plane divert. Generalized requests by public agencies to warn are quite different from the particularized requests by individual passengers for assistance, and the airline’s response to them, at issue in these cases. Nor does our decision in Prescod v. AMR, Inc., 383 F.3d 861 (9th Cir.2004), support passengers’ submission that a “promise” by air carriers to make passenger safety a priority is an “event.” There, an embarking passenger made a specific request— that a bag with medications and a breathing device stay with her on the flights ahead' — and the airline gave its word to honor this request. The airline then unexpectedly seized, and delayed, the bag. We concluded that seizing the bag was an “unusual and unexpected event” because doing so was contrary to the airline’s specific promise, and was external to the passenger for the same reason the refusal of assistance in Husain was external to the passenger. Prescod, 383 F.3d at 868. A failure to follow through on a promise to take care of a specific, health-related request, which was unexpected in Prescod because of the promise, does not mean that every injury to a passenger is an unexpected “event” simply because airlines have declared that avoiding injury to passengers is a priority. Just as we found it unnecessary to decide how industry standards figure into the Article 17 analysis in Caman, it is unnecessary to do so here. Passengers present no substantial evidence of an industry standard with respect to warning about the risks of DVT. Finally, to the extent that passengers fault the district court for having invoked Article 17’s space and temporal limitations, it was in response to their alternative position that the airlines “elected” or decided not to warn despite requests to do so. However, we cannot see how it" }, { "docid": "19967812", "title": "", "text": "an “event,” and thus not an Article 17 “accident.” Caman, 455 F.3d at 1092. It does not become one simply because public agencies have recommended, or “requested,” warnings. Other courts, including those of signatory nations whose views are entitled to weight, are in accord. See, e.g., Blansett v. Continental Airlines, Inc., 379 F.3d 177, 180(5th Cir.2004) (acknowledging that the IATA has recommended that airlines implement a schedule of instructions on the risks of DVT, and holding that Continental’s failure to warn of DVT was not an “unusual or unexpected event” and therefore not a qualifying “accident”); Povey v. Qantas Airways Ltd., (2005) 223 C.L.R. 189 (Austl.) (holding that the failure to warn of DVT is not an actionable “accident” under the Convention); Deep Vein Thrombosis and Air Travel Group Litig., [2005] UKHL 72, [2006] 1 A.C. 495 (U.K.) (same). Nor does the Federal Aviation Administration require warnings on DVT. Passengers’ reliance on McCaskey v. Continental Airlines, Inc., 159 F.Supp.2d 562 (S.D.Tex.2001), and Fulop v. Malev Hungarian Airlines, 175 F.Supp.2d 651(S.D.N.Y.2001), is misplaced. Unlike in Caman, Rodriguez, and Blansett, injuries in both these cases (as in Husain) stemmed from specific health-based requests for help that were unheeded by airline crew. The passenger in Fulop had a heart attack on board, 175 F.Supp.2d at 664; in McCaskey, a stroke, 159 F.Supp.2d at 568; yet in neither case did the plane divert. Generalized requests by public agencies to warn are quite different from the particularized requests by individual passengers for assistance, and the airline’s response to them, at issue in these cases. Nor does our decision in Prescod v. AMR, Inc., 383 F.3d 861 (9th Cir.2004), support passengers’ submission that a “promise” by air carriers to make passenger safety a priority is an “event.” There, an embarking passenger made a specific request— that a bag with medications and a breathing device stay with her on the flights ahead' — and the airline gave its word to honor this request. The airline then unexpectedly seized, and delayed, the bag. We concluded that seizing the bag was an “unusual and unexpected event” because doing so" }, { "docid": "6443813", "title": "", "text": "17 of the Convention states that: “The carrier shall be liable for damage sustained in the event of the death or wounding of a passenger or any other bodily injury suffered by a passenger, if the accident which caused the damage so sustained took place on board the aircraft or in the course of any of the operations of embarking or disembarking.” We review de novo the legal question of whether an “accident” occurred. See Husain v. Olympic Airways, 316 F.3d 829, 835 (9th Cir.2002), aff'd 540 U.S. 644, 124 S.Ct. 1221, 157 L.Ed.2d 1146 (2004). The Supreme Court recently examined Article 17 in a case involving an on-board death caused by an asthmatic man’s exposure to second-hand smoke while seated in a nonsmoking section three rows in front of the aircraft’s smoking section. See Husain, 540 U.S. 644, 124 S.Ct. 1221, 157 L.Ed.2d 1146. The passenger’s wife repeatedly asked airline employees to move her husband away from the smoking section and was told that the flight was full, even though there were empty seats on the plane. Id. at 1224, 1225 n. 2. The Court recounted that Air France v. Saks, 470 U.S. 392, 105 S.Ct. 1338, 84 L.Ed.2d 289 (1985), had “explained that the term ‘accident’ in the Convention refers to an ‘unexpected or unusual event or happening that is external to the passenger,’ and not to ‘the passenger’s own internal reaction to the usual, normal, and expected operation of the aircraft.’ ” Husain, 540 U.S. at -, 124 S.Ct. at 1224. “[F]or purposes of the ‘accident’ inquiry, ... a plaintiff need only be able to prove that some link in the chain [of injury causation] was an unusual or unexpected event external to the passenger.” Id. at 1227 (quotation marks and citation omitted). Here, the seizure of Neischer’s carry-on bag, and the subsequent delay in the bag’s delivery, occurred after a sequence of promises by defendants’ employees to Neischer: (1) that her bag would remain with her in the airplane cabin on all flights; and (2) that the bag, which was eventually removed from Neischer’s possession and" }, { "docid": "9790763", "title": "", "text": "of DVT was not an “unusual or unexpected event” and not a qualifying “accident.” Though many international carriers in 2001 included DVT warnings, it is undisputed that many did not. Moreover, Continental’s battery of warnings was in accord with the policies of the Federal Aviation Administration (“FAA”), which prescribes what warnings airlines should issue to passengers. In Witty v. Delta Air Lines, Inc., 366 F.3d 380 (5th Cir.2004), we held that the warnings reasonably required to be made by an airline are those enumerated by the FAA, and no others. We noted that the balance of warnings required by the government is the product of its careful judgment. For example, “Any warning that passengers should not stay in their seats, but should instead move about to prevent DVT, would necessarily conflict with any federal determination that, all things considered, passengers are safer in their seats.” Id. at 385. We noted also that the courts’ requirement of other warnings would dilute the impact of warnings that are required by the FAA. Though Witty does not decide this case, because its lesson directly applies only to negligence causes of action, it is nonetheless instructive. It was not an unexpected or unusual decision for Continental merely to cleave to the exclusive list of warnings required of it by the agency that has regulatory jurisdiction over its flights. Ultimately, no jury may be permitted to find that Continental’s failure to warn of DVT constituted an “accident” under article 17. Continental’s policy was far from unique in 2001 and was fully in accord with the expectations of the FAA. Its procedures were neither unexpected nor unusual. The order appealed from is REVERSED, and this matter is REMANDED. . See also Fulop v. Malev Hungarian Airlines, 175 F.Supp.2d 651, 665 (S.D.N.Y.2001) (\"Any major deviation from a standard articulated in recognized practices and procedures represents the exceptional case — the unusual or unexpected happening.”) . As the United Kingdom Court of Appeals observed with respect to Husain, \"[t]he refusal of the flight attendant to move Dr. Hanson cannot properly be considered mere inertia, or a non-event. It" }, { "docid": "8164654", "title": "", "text": "enabled him to obtain proper medical treatment sooner, and that by failing to divert, Malev violated both its own procedures and industry standards for dealing with such a medical emergency. II. DISCUSSION In assessing Malev’s liability under the standard adopted in the earlier Decision, the Court must first determine what policies and procedures govern Malev and the rest of the airline industry in responding to an in-flight medical emergency such as the one here at issue, and then decide whether in dealing with Fulop’s condition Malev’s employees violated any such applicable standards. In its Decision, this Court found that “aberrant conduct of Ma-lev’s employees in handling the occurrence, the failures of which aggravated Fulop’s initial heart attack,” could be viewed as an “unusual or unexpected event or happening,” thus qualifying as an “accident” under Article 17 of the Convention for which Malev would be liable for any damage sustained as a result. Fulop, 175 F.Supp.2d at 663. On the basis of the Trial testimony and corresponding record, this Court is not persuaded that Plaintiffs have met their burden to prove by a preponderance of the evidence that the relevant conduct of Malev’s employees violated established operational standards, rules or policies applicable to the circumstances. Thus, the Court does not find that the behavior of Malev’s employees in response to Fulop’s medical problems qualifies as an “accident” as defined under Article 17 of the Convention, and consequently does not find Malev liable for damages. Malev’s procedures for tending to sick passengers leave the absolute decision-making authority of whether to divert the plane to the captain. (Def.’s Trial Ex. E.) According to the procedures, the captain first must make a request over the loudspeaker for a physician or other trained health professional to assist the sick passenger. (Id.) If such a trained health professional is present, she may evaluate the situation and inform the captain of her medical opinion. (Id.) The captain then must determine whether or not the sick passenger requires urgent medical assistance. (Id.) If he deems such assistance necessary, he must contact the nearest suitable airport and make preparations" }, { "docid": "19967811", "title": "", "text": "the Court focused on the meaning of “event” in Olympic Airways v. Husain, 540 U.S. 644, 124 S.Ct. 1221, 157 L.Ed.2d 1146 (2004). There, a passenger and his wife were seated near the smoking section. The passenger had a history of anaphylactic reactions to smoke and asked a flight attendant to be moved away from it. The crew refused the request, and the passenger died in an apparent reaction to the smoke in flight. Even though the conduct amounted to inaction, the Court concluded that it could nevertheless be an “event” because “[t]he rejection of an explicit request for assistance would be an ‘event’ or ‘happening’ under the ordinary and usual definitions of these terms.” Id. at 655,124 S.Ct. 1221. Based largely on this rationale, passengers here contend that it was equally unexpected and unusual for air carriers not to warn effectively about DVT because the airlines had been “requested” to do so by IATA, the English House of Lords, and airline doctors. However, an airline’s failure to warn a passenger about DVT is not an “event,” and thus not an Article 17 “accident.” Caman, 455 F.3d at 1092. It does not become one simply because public agencies have recommended, or “requested,” warnings. Other courts, including those of signatory nations whose views are entitled to weight, are in accord. See, e.g., Blansett v. Continental Airlines, Inc., 379 F.3d 177, 180(5th Cir.2004) (acknowledging that the IATA has recommended that airlines implement a schedule of instructions on the risks of DVT, and holding that Continental’s failure to warn of DVT was not an “unusual or unexpected event” and therefore not a qualifying “accident”); Povey v. Qantas Airways Ltd., (2005) 223 C.L.R. 189 (Austl.) (holding that the failure to warn of DVT is not an actionable “accident” under the Convention); Deep Vein Thrombosis and Air Travel Group Litig., [2005] UKHL 72, [2006] 1 A.C. 495 (U.K.) (same). Nor does the Federal Aviation Administration require warnings on DVT. Passengers’ reliance on McCaskey v. Continental Airlines, Inc., 159 F.Supp.2d 562 (S.D.Tex.2001), and Fulop v. Malev Hungarian Airlines, 175 F.Supp.2d 651(S.D.N.Y.2001), is misplaced. Unlike in Caman," } ]

[ { "docid": "5315924", "title": "", "text": "address IDG’s failure to demonstrate here that CNA was ever made aware of any connection between Burson’s purported injuries and advertising activity at the time a defense was requested. V. There is nothing on this record to suggest that Burson’s alleged injuries were sufficiently related to “advertising activity” on the part of IDG so as to invoke defense and/or liability coverage under the insurance policies at issue. For the foregoing reasons, the district court’s judgment in favor of CNA will be AFFIRMED. . Under Oklahoma law, an \"insurance policy constitutes a contract,” subject to general interpretation principles of ordinary contract law. See First Bank of Turley, 928 P.2d at 303 n. 6 (citing Silver v. Slusher, 770 P.2d 878, 883 (Ok.1988); Christian v. Metropolitan Life Ins. Co., 566 P.2d 445, 448 (Okla.1977); 12 Appleman, Insurance Law & Practice § 7004 at 34-56 (1981 & Supp.1995)). Insurance contracts are to be interpreted \"according to the plain meaning of the language in the policy,” VBF, Inc. v. Chubb Group of Insurance Cos., 263 F.3d 1226, 1230 (10th Cir.2001), and \"must be accepted in their plain, ordinary and popular sense.” Torres v. Sentry Ins., 558 P.2d 400, 401 (Ok.1976) (internal quotations omitted); see also Max True Plastering Co. v. United States Fidelity and Guaranty Co., 912 P.2d 861, 865 (Ok.1996) (\"[the terms of an insurance contract] are given effect according to their ordinary or popular meaning.\"). If a policy term is ambiguous — i.e., where it is susceptible to two or more different meanings — \"it will be construed against the insurer.” VBF, 263 F.3d at 1230-31 (internal quotations omitted). \"In addition, Oklahoma recognize[s] the “reasonable expectations doctrine' when the policy is ambiguous or contains unexpected exclusions arising from technical or obscure language or which are hidden in policy provisions.” Id. at 1231 (internal quotations omitted). Under this doctrine, \"coverage exists, if the insurer or agent has created a reasonable expectation in the insured that coverage exists.” Id. . As previously mentioned, ¶ 1(d) of the CGL policies issued to IDG states that \" '[advertising injury’ means injury arising out of one or" } ]

[ { "docid": "7707827", "title": "", "text": "it incurred with respect to such claims. Accordingly, the declaratory judgment fees and expenses fall within the plain and ordinary meaning of the supplementary payments provision. App. 2454 (emphasis added). We agree with the district court that “claim expenses,” which include “all payments under the supplementary payments provisions of [MCCC’s] policy,” thus covers MCCC’s declaratory judgment attorney fees and expenses. MCCC investigated the claims that formed the basis of the declaratory judgment actions. MCCC incurred attorney fees and expenses with respect to those claims. Hence, the declaratory judgment attorney fees and expenses fall within the unambiguous language of the supplementary payments provisions. ERC must reimburse MCCC for those “claim expenses” at the contractually provided proportionate rate. ERC contends that this construction of the language makes the words “settle or ‘suit’ against an insured we defend” superfluous, because any case that is settled or involves a suit must also be investigated. Citing Bituminous Casualty Corporation v. Cowen Construction, Inc., 55 P.3d 1030, 1034 (Okla.2002), ERC relies on the gener al proposition that courts should avoid construing a document in such a way as to render some of the language surplusage. ERC suggests: A more reasonable construction of the supplementary payments provision ... is that MCCC will pay all expenses that it incurs with respect to any suit against an insured that it defends. It also will pay all pre-suit expenses that it incurs with respect to any claim that it investigates or settles. This construction makes sense. A provision that MCCC will pay its own expenses in any suit where MCCC defends its insured leaves MCCC’s insureds liable for all expenses incurred when MCCC settles a claim before suit is filed. The addition of the “investigate or settle” language would provide coverage for those pre-suit expenses. Aplt. Br. at 42. But ERC’s construction does not avoid the surplusage problem. First, the words “or settle” serve no purpose, since it is impossible to believe that MCCC would settle a claim without having investigated it. Moreover, although ERC’s argument explains why the words “any claim we investigate” would need to be added to" }, { "docid": "7707826", "title": "", "text": "and legal expenses.” This definition incorporates by reference the supplementary payments provisions of MCCC’s policies with its insureds. The “Statement of Uncontroverted Facts” in ERC’s memorandum in support of its motion for summary judgment contained what it asserted to be the language of the supplementary payments provisions. MCCC’s response stated that the assertion was “uncontroverted.” App. 1673 ¶ 7. The pertinent part of that language is as follows: SUPPLEMENTARY PAYMENTS COVERAGES A AND B We will pay, with respect to any claim we investigate or settle or “suit” against an insured we defend: A. All expenses we incur These payments will not reduce the limits of insurance. The district court held: A plain reading of the supplementary payments provision indicates that it covers MCCC’s declaratory judgment fees and expenses. The provision provides that MCCC will pay all expenses which it incurs with respect to any claim that it investigates. Certainly, MCCC investigated the claims for which it litigated coverage. Moreover, the fees and expenses which MCCC incurred in the declaratory judgment proceedings are expenses which it incurred with respect to such claims. Accordingly, the declaratory judgment fees and expenses fall within the plain and ordinary meaning of the supplementary payments provision. App. 2454 (emphasis added). We agree with the district court that “claim expenses,” which include “all payments under the supplementary payments provisions of [MCCC’s] policy,” thus covers MCCC’s declaratory judgment attorney fees and expenses. MCCC investigated the claims that formed the basis of the declaratory judgment actions. MCCC incurred attorney fees and expenses with respect to those claims. Hence, the declaratory judgment attorney fees and expenses fall within the unambiguous language of the supplementary payments provisions. ERC must reimburse MCCC for those “claim expenses” at the contractually provided proportionate rate. ERC contends that this construction of the language makes the words “settle or ‘suit’ against an insured we defend” superfluous, because any case that is settled or involves a suit must also be investigated. Citing Bituminous Casualty Corporation v. Cowen Construction, Inc., 55 P.3d 1030, 1034 (Okla.2002), ERC relies on the gener al proposition that courts should avoid construing" }, { "docid": "7707805", "title": "", "text": "further proceedings to resolve the meaning of Agreement language that we hold to be ambiguous in this context. As for MCCC’s own attorney fees incurred in the declaratory judgment action, we affirm the district court’s ruling that under the contractual language presented to the district court, ERC must reimburse these attorney fees as “claim expenses.” With respect to the third challenged item — MCCC’s payment of the insureds’ attorney fees incurred in defending the underlying tort claims — we reverse the district court and hold that ERC need not reimburse MCCC for those payments as “loss.” Rather, those payments should be treated as “claim expenses” for which ERC need make only a proportionate payment. We also address several additional issues, including the Agreement’s characterization of postjudgment interest as “loss” or “claim expenses,” the percentage rate at which damage payments should be included as “loss” under the Agreement, prejudgment interest, a discovery dispute, and a cross-appeal by MCCC for attorney fees in this action. I. BACKGROUND A. Description of Reinsurance Agreement Reinsurance is essentially insurance for insurance companies. Spreading part of the risk to the reinsurer can prevent a catastrophic loss from falling upon the insurance company and enable the insurance company to serve more clients. See, e.g., Unigard Sec. Ins. Co., Inc. v. North River Ins. Co., 4 F.3d 1049, 1053 (2d Cir.1993). Unlike typical insurance contracts that are offered on a take-it-or-leave-it basis, rein-sureds ordinarily negotiate the terms, conditions, and rates in their reinsurance contracts. For nearly 30 years MCCC purchased reinsurance coverage from ERC. From January 1, 1994, until April 1, 2000, ERC and MCCC operated under the Agreement whose meaning is at issue in this appeal. The Agreement required ERC to reimburse MCCC for all “loss” in excess of $300,000 for each occurrence, with a reinsurance limit of $1,000,000 for each occurrence. Additionally, the Agreement required ERC to reimburse MCCC for “claim expenses” at a rate equal to the fraction of the “loss” for which ERC was responsible. If, for example, MCCC had to pay a “loss” of $500,000, ERC would have to reimburse MCCC for $200,000" }, { "docid": "7707814", "title": "", "text": "was made, and the subject-matter to which it relates.” Sinclair Oil & Gas Co. v. Bishop, 441 P.2d 436, 442-43 (Okla.1967); see 15 Okla Stat. § 163; see also Lum v. Lee Way Motor Freight, Inc., 757 P.2d 810, 815 (Okla.1987) (“Whether a contract is ambiguous so as to require extrinsic evidence or whether the language is ambiguous and hence permits consideration of surrounding circumstances are questions of law for the court.” (emphasis added)). But cf. Restatement (Second) of Contracts § 202 (1981) (language of contract should be interpreted “in light of all the circumstances”); id. cmt. a (this rule “do[es] not depend upon any determination that there is an ambiguity.”). If interpretation of an ambiguous contract “depends upon extrinsic facts as to which there is a dispute, its construction is a mixed question of law and fact, and is for the jury....” Brogden v. Perryman, 176 Okla. 505, 56 P.2d 398, 399 (Okla.1936) (internal quotation marks omitted); see Polk v. Bartlett, 365 P.2d 987, 989-90 (Okla.1961). A. Insureds’ Attorney Fees and Expenses in Declaratory Judgment Actions We first consider whether the Agreement requires ERC to reimburse MCCC for MCCC’s payment of its insureds’ attorney fees and expenses in the declaratory judgment actions. The resolution of this issue turns on whether the Agreement includes such payments within the definition of “loss.” Each party contends that the Agreement is unambiguous. Rejecting their views, we hold that the language of the Agreement is, as a matter of law, ambiguous on this point. The pertinent part of the Agreement’s definition of “loss” is as follows: The word “loss” shall mean only such amounts: paid by [MCCC] for punitive, exemplary, or compensatory damages awarded to the insured and arising out of the conduct of [MCCC] in the investigation, trial or settlement of any claim or failure to pay or delay in payment of any benefits under any policy.... Article VIII, ¶¶ (c)(1), (c)(2), App. 600. As do the parties, we focus on the phrase “compensatory damages awarded to the insured.” The Agreement does not define “compensatory damages.” MCCC urges that the insureds’ attorney fees" }, { "docid": "7707818", "title": "", "text": "a Texas court had interpreted the meaning of “compensatory damages” in the Agreement between ERC and MCCC, that interpretation would have the same preclusive effect in Oklahoma, or federal, litigation that it would have in litigation in a Texas state court. See Dean Witter Reynolds, Inc. v. Byrd, 470 U.S. 213, 222, 105 S.Ct. 1238, 84 L.Ed.2d 158 (1985) (“The full-faith-and-credit statute requires that federal courts give the same preclusive effect to a State’s judicial proceedings as would the courts of the State rendering the judgment .... ” (emphasis omitted)). Here, however, no Texas judgment has interpreted the term “compensatory damages” in the Agreement, so no Texas judgment is binding with respect to the meaning of that term. Of course, the Agreement could have provided that the term should be construed in accordance with the law of the State where the underlying judgment was entered. But ERC does not argue for such a construction. The full-faith-and-credit requirement does not restrict the parties’ right to define contractual terms as they wish. At oral argument ERC properly conceded that if Texas law conflicted with an explicit definition in the Agreement, the Agreement would control. In short, ERC’s reliance on the Full Faith and Credit Clause is misplaced. The district court ruled that “compensatory damages” unambiguously includes attorney fees. After noting that attorney fees are sometimes awarded as costs and sometimes as compensatory or punitive damages, it said that the label is unimportant. Citing our decision in Prudential Insurance Company of America v. Carlson, 126 F.2d 607, 611 (10th Cir.1942), which held that an award of attorney fees is a substantive right for purposes of choice-of-law analysis, the court reasoned that such an award “is intended to compensate the prevailing party,” and thus is “compensatory damages” within the definition of the term in Webster’s Third New International Dictionary 463 (1986) (“compensatory damages” are “damages awarded to make good or compensate for an injury sustained”). The court concluded, “[T]he plain and ordinary meaning of the term ‘compensatory damages’ includes attorneys’ fees and costs.” App. 2452. In support of the district court’s ruling, MCCC cites" }, { "docid": "7707851", "title": "", "text": "actions. On appeal MCCC still claims that this suit is to recover on a contract for services, but it no longer refers to services by ERC. Instead, the services it refers to are services provided by attorneys hired by MCCC to represent it in the declaratory judgment actions with MCCC’s insureds. MCCC argues that' because this litigation between MCCC and ERC dealt in part with MCCC’s ability to recover from ERC sums that MCCC paid to the declaratory judgment attorneys, this lawsuit is a civil action to recover for services rendered, and MCCC is entitled to attorney fees it incurred in this lawsuit. MCCC attempts to justify this switch in theories on the ground that the Oklahoma legislature recently amended the statute to clarify its meaning and to correct courts that had been incorrectly interpreting the statute. The newly amended version of § 936, enacted after the district court decided the attorney-fee issue, states: In any civil action to recover for labor or services rendered, or on an open account, a statement of account, account stated, note, bill, negotiable instrument, or contract relating to the purchase or sale of goods, wares, or merchandise, unless otherwise provided by law or the contract which is the subject of the action, the prevailing party shall be allowed a reasonable attorney fee to be set by the court, to be taxed and collected as costs. 12 Okla. Stat. § 936 (November 1, 2002) (emphasis added). According to MCCC, this “clarification” supports an award of attorney fees under facts different from those argued to the district court. To be sure, in some circumstances an appellate court may allow a party to raise an issue for the first time on appeal because of an intervening change in the law. See United States v. Charley, 189 F.3d 1251, 1279 (10th Cir.1999) (Holloway, J., concurring in part and dissenting in part). But this is not such a circumstance. As MCCC admits, any change in the Oklahoma statute was not applicable to this case. As a result, MCCC’s reference to the amended statute is simply to support its argument" }, { "docid": "11885866", "title": "", "text": "find the Agreement at issue violative of Oklahoma public policy. See Medina v. City and County of Denver, 960 F.2d 1493, 1495 n. 1 (10th Cir.1992) (“We are free to affirm a district court decision on any grounds for which there is a record sufficient to permit conclusions of law, even grounds not relied upon by the district court.”) (citation omitted). In addition, because Defendants are in breach of contract, we do not decide whether they also breached the implied covenant of good faith and fair dealing owed to Plaintiff. B. When interpreting a contract, Oklahoma law requires courts to “consider the entire agreement ‘so as to give effect to every part, if reasonably practicable.’ ” Scrivner, 242 F.3d at 1291 (quoting 15 Okla. Stat. § 157). Determination of “whether a contract is ambiguous and interpretation of an unambiguous contract are questions of law” for the court. Otis Elevator Co. v. Midland Red Oak Realty, Inc., 488 F.3d 1095, 1101 (10th Cir.2007). An ambiguous contract, however, “is a mixed question of law and fact and should be decided by the jury.” Id. In determining whether a contract is ambiguous, courts must “construe the words as they are ‘understood in their ordinary and popular sense, rather than according to their strict legal meaning, unless used by the parties in a technical sense, or unless special meaning is given to them by usage.’ ” Gamble, Simmons & Co. v. Kerr-McGee Corp., 175 F.3d 762, 767-68 (10th Cir.1999) (quoting 15 Okla. Stat. § 160). Courts “will not create an ambiguity by using a forced or strained construction, by taking a provision out of context, or by narrowly focusing on the provision.” S. Corr. Sys. v. Union City Public Schools, 64 P.3d 1083, 1089 (Okla.2002). The ultimate goal of “contract interpretation is to determine and give effect to the intent of the parties.” Otis Elevator, 483 F.3d at 1101. The issue in the instant case is very simple: what does the word “claim” mean? The Agreement states that “Losses Charged” to Plaintiff in calculating his bonus are based on “the amount [Defendants] have paid" }, { "docid": "7707833", "title": "", "text": "ERC, granted summary judgment with respect to recovery of MCCC’s own declaratory-judgment attorney fees on May 23, 2002. Trial on the issues not resolved by summary judgment was on June 18, 2002, almost a month later. ERC could also have alerted the district court to the matter by a post-trial, or even post-judgment, motion. Third, the alleged error here does not concern any matter of significant public policy. We are dealing with a private contract dispute in a business relationship. And fourth, we are not certain whether the result we reach would be different under the language now presented to us by ERC. The proper construction of ERC’s “new” language is not obvious. In short, the judicial proceeding below was fair, and the error (by the parties) should not raise serious doubts about the integrity of that proceeding or bring disrepute upon the district court. We therefore affirm the district court on this issue. C. MCCC’s Reimbursement of its Insureds’ Attorney Fees Incurred in Underlying Tort Actions ERC does not dispute that it must partially reimburse MCCC for amounts that MCCC paid its insureds for their defense costs in the underlying tort actions (in which MCCC should have provided a defense and did not). The parties dispute what the amount of the reimbursement should be. The specific disagreement is whether the insureds’ attorney fees constitute “loss” under the Agreement, or merely “claim expenses.” Under the Agreement ERC reimburses MCCC at a different rate for “loss” than for “claim expenses.” We hold that MCCC’s payment of an insured’s attorney fees in defending a third-party claim is a “claim expense” under the Agreement. ERC need only reimburse MCCC at the contractual proportionate rate. The relevant portion of the “loss” definition provides: The word “loss” shall mean only such amounts: paid by [MCCC] for punitive, exemplary, or compensatory damages awarded to the insured and arising out of the conduct of MCCC in the investigation, trial, or settlement of any claim or failure to pay or delay in payment of any benefits under any policy.... Article VIII, ¶¶ (c)(1), (c)(2), App. 600. There are" }, { "docid": "6185027", "title": "", "text": "is, the non-moving party must produce evidence on which the jury could reasonably find for the non-moving party. Id. at 324, 106 S.Ct. 2548. B. Plaintiffs Motion for Partial Summary Judgment for Breach of Contract In its motion for partial summary judgment, the plaintiff contends that PDS breached the Agreement when it attempted to modify the Agreement and require Warrantech’s approval before PDS would process any of the plaintiffs claims. In response, PDS argues that the Agreement was not self-executing because it required PDS to approve certain things before the plaintiff could place any business with PDS. Further, PDS argues that it processed every claim it actually received, and that the parties mutually agreed to abandon the Agreement when they could not resolve their differences over the fees. The Agreement provides, and the parties do not dispute, that the law of Illinois is to be applied to the interpretation of the Contract. In Illinois, the construction of a contract is an issue of law to be decided by the trial court. See Intersport, Inc. v. Nat’l Collegiate Athletic Ass’n., 381 Ill.App.3d 312, 319 Ill.Dec. 261, 885 N.E.2d 532, 538 (2008). “The court’s primary objective in construing a contract is to ascertain and to give effect to the intent of the parties, so long as it does not conflict with any rule of law or public policy.” Id. The first step is to examine the language of the contract because the plain and ordinary meaning of the terms are the best indicators of the parties’ intent. Id. The second step is to determine if there is any ambiguity in the contract language. Id. at 539. “Where there is no ambiguity, the court will ascribe to the terms their plain and ordinary meaning.” Id. Further, under Illinois law, every contract implies good faith and fair dealing between parties to it. The covenant of good faith and fair dealing is not an independent source of a cause of action under Illinois law. Rather, breach of the duty of good faith and fair dealing is simply a breach of the underlying contract. Kinesoft Dev." }, { "docid": "7707811", "title": "", "text": "reimbursed MCCC for payments and expenses arising out of four declaratory judgment actions, it brought this diversity action for return of the reimbursements. MCCC counterclaimed for reimbursement of payments and expenses arising out of three other declaratory judgment actions. The district court granted MCCC summary judgment against ERC with respect to MCCC’s payment of its insureds’ attorney fees and expenses in the declaratory judgment actions. The court ruled that “the plain and ordinary meaning of the term ‘compensatory damages’ included attorney fees and costs” and that the declaratory judgment fees and expenses arose “out of MCCC’s conduct in failing to pay or delaying payment of benefits under the policy.” App. 2452. Therefore, it held, the insureds’ attorney fees and expenses in the declaratory judgment actions fell within the Agreement’s unambiguous definition of “loss.” The district court also granted summary judgment to MCCC on its claim that ERC had to reimburse MCCC for a portion of MCCC’s own attorney fees and expenses in the declaratory judgment actions, because those fees and expenses were “claim expenses” within the meaning of the Agreement. After a subsequent trial the district court further held that ERC had to reimburse MCCC for MCCC’s payment of attorney fees and expenses incurred by its insureds in defending the underlying tort actions. The court stated that these pay ments by MCCC were “loss” within the meaning of the Agreement. ERC appeals and MCCC cross appeals. We now proceed to address in turn the issues raised by the parties. We have jurisdiction under 28 U.S.C. § 1291. II. MEANING OF “LOSS” AND “CLAIM EXPENSES” Most of the issues before us require determination of the meaning of “loss” and “claim expenses” under the Agreement. Because no facts are in dispute, we review de novo the district court’s legal conclusions. See Dang v. UNUM Life Ins. Co. of Am., 175 F.3d 1186, 1189 (10th Cir.1999). The parties agree that Oklahoma law governs the interpretation of the Agreement. Under Oklahoma law the court interprets an insurance contract in accordance with principles applicable to all contracts. First Bank of Turley v. FDIC, 928 P.2d" }, { "docid": "7707850", "title": "", "text": "falls under the same general category as an argument presented at trial” (internal quotation marks omitted)), opinion amended on other grounds, 103 F.3d 80 (10th Cir.1996). MCCC relies on 12 Okla. Stat. § 936. When the district court rendered judgment the statute provided: In any civil action to recover on an open account, a statement of account, account stated, note, bill, negotiable instrument, or contract relating to the purchase or sale of goods, wares, or merchandise, or for labor or services, unless otherwise provided by law or the contract which is the subject of the action, the prevailing party shall be al lowed a reasonable attorney fee to be set by the court, to be taxed and collected as costs. 12 Oída. Stat. § 936 (2002) (emphasis added). In district court MCCC argued that the Agreement was a contract for services because ERC provided various services, including same-day processing of reimbursement requests; assistance in locating defense counsel; providing information on plaintiffs’ attorneys, local values, and jury trends; and providing advice on pursuit of declaratory judgment actions. On appeal MCCC still claims that this suit is to recover on a contract for services, but it no longer refers to services by ERC. Instead, the services it refers to are services provided by attorneys hired by MCCC to represent it in the declaratory judgment actions with MCCC’s insureds. MCCC argues that' because this litigation between MCCC and ERC dealt in part with MCCC’s ability to recover from ERC sums that MCCC paid to the declaratory judgment attorneys, this lawsuit is a civil action to recover for services rendered, and MCCC is entitled to attorney fees it incurred in this lawsuit. MCCC attempts to justify this switch in theories on the ground that the Oklahoma legislature recently amended the statute to clarify its meaning and to correct courts that had been incorrectly interpreting the statute. The newly amended version of § 936, enacted after the district court decided the attorney-fee issue, states: In any civil action to recover for labor or services rendered, or on an open account, a statement of account, account" }, { "docid": "21108363", "title": "", "text": "Cir.1988) (finding “[a] term is unambiguous where it is reasonably and fairly susceptible of only one meaning”). In order to decide whether the contract is ambiguous, we look at the whole contract and construe the words as they are “understood in their ordinary and popular sense, rather than according to their strict legal meaning, unless used by the parties in a technical sense, or unless a special meaning is given to them by us age.” Okla. Stat. tit. 15, § 160. In the present case, the parties’ intent is apparent, regardless of whether the terms are read in their ordinary, legal, or technical sense. The compensation clause at the heart of this contract dispute plainly and succinctly enumerates the elements of tax savings properly included in calculating Gamble Simmons’ contingency fee, as well as the tax years for which Gamble Simmons is permitted to perform its services. Although Gamble Simmons urges us to find the terms ambiguous and thereby allow the introduction of extrinsic evidence tending to contradict the express contract language, we decline to indulge its strained construction of the agreement to “create and then construe an ambiguity so as to import a favorable consideration to either party than that expressed in the contract.” Kerr-McGee, 905 P.2d at 763 (internal quotation marks & citation omitted); see also Max True Plastering Co. v. United States Fidelity & Guar. Co., 912 P.2d 861, 869 (Okla.1996) (refusing to indulge in constrained interpretations of contracts to find ambiguity). Our review of the record reveals contract terms that are unambiguous, readily understood, and not “fairly susceptible” of various interpretations. Therefore, in the absence of any “fraud, deception, or unfair dealing” by either party in procuring the agreement, or “legal impediment shown” that prevented the parties from entering into the contract and expressing it in language of their own choosing, we will not resort to extrinsic evidence to interpret or revise the agreement. Northwestern Oil & Gas Co. v. Branine, 71 Okla. 107, 175 P. 533, 534 (1918). B. Applying the Terms of the Contract Having decided the contract is unambiguous and a clear reflection" }, { "docid": "7707810", "title": "", "text": "accrues after entry of the judgment and before we have paid, offered to pay, or deposited in court the part of the judgment that is within the applicable limit of insurance. These payments will not reduce the limits of insurance. App. 526-27. B. The District Court’s Ruling The payments and expenses at issue in this litigation arose out of other lawsuits: tort actions against MCCC insureds, and declaratory judgment actions between MCCC and its insureds to determine MCCC’s responsibility to provide coverage with respect to the tort actions. As a result of the declaratory judgment actions, MCCC had to pay its insureds’ attorney fees in the declaratory judgment actions, had to pay its own attorney fees for attorneys representing MCCC in the declaratory judgment actions, and had to reimburse its insureds for the damages awarded in the underlying tort actions and for the fees incurred by the insureds for legal representation in the tort action. The lawsuit between MCCC and ERC involves whether ERC must reimburse MCCC for these costs and expenses. After ERC had reimbursed MCCC for payments and expenses arising out of four declaratory judgment actions, it brought this diversity action for return of the reimbursements. MCCC counterclaimed for reimbursement of payments and expenses arising out of three other declaratory judgment actions. The district court granted MCCC summary judgment against ERC with respect to MCCC’s payment of its insureds’ attorney fees and expenses in the declaratory judgment actions. The court ruled that “the plain and ordinary meaning of the term ‘compensatory damages’ included attorney fees and costs” and that the declaratory judgment fees and expenses arose “out of MCCC’s conduct in failing to pay or delaying payment of benefits under the policy.” App. 2452. Therefore, it held, the insureds’ attorney fees and expenses in the declaratory judgment actions fell within the Agreement’s unambiguous definition of “loss.” The district court also granted summary judgment to MCCC on its claim that ERC had to reimburse MCCC for a portion of MCCC’s own attorney fees and expenses in the declaratory judgment actions, because those fees and expenses were “claim expenses” within" }, { "docid": "7707812", "title": "", "text": "the meaning of the Agreement. After a subsequent trial the district court further held that ERC had to reimburse MCCC for MCCC’s payment of attorney fees and expenses incurred by its insureds in defending the underlying tort actions. The court stated that these pay ments by MCCC were “loss” within the meaning of the Agreement. ERC appeals and MCCC cross appeals. We now proceed to address in turn the issues raised by the parties. We have jurisdiction under 28 U.S.C. § 1291. II. MEANING OF “LOSS” AND “CLAIM EXPENSES” Most of the issues before us require determination of the meaning of “loss” and “claim expenses” under the Agreement. Because no facts are in dispute, we review de novo the district court’s legal conclusions. See Dang v. UNUM Life Ins. Co. of Am., 175 F.3d 1186, 1189 (10th Cir.1999). The parties agree that Oklahoma law governs the interpretation of the Agreement. Under Oklahoma law the court interprets an insurance contract in accordance with principles applicable to all contracts. First Bank of Turley v. FDIC, 928 P.2d 298, 302 & n. 6 (Okla.1996). “A contract must be so interpreted as to give effect to the mutual intention of the parties, as it existed at the time of contracting....” 15 Okla. Stat. § 152. Ordinarily, this means that the contract should be construed according to the plain meaning of its language. Id. at §§ 154, 160. The court determines, as a matter of law, whether the contract is ambiguous. Pitco Production Co. v. Chaparral Energy, Inc., 63 P.3d 541, 545 (Okla.2003). A contract is ambiguous if it is reasonably susceptible to more than one meaning. Id. at 545-46. “The mere fact the parties disagree or press for a different construction does not make an agreement ambiguous.” Id. at 545. If the court finds the contract to be unambiguous, it then interprets .the contract as a matter of law. Id. at 545. If the court cannot determine the intent of the parties from the contract itself (that is, if the contract is ambiguous), the court may look to “the circumstances under which [the contract]" }, { "docid": "7707806", "title": "", "text": "insurance companies. Spreading part of the risk to the reinsurer can prevent a catastrophic loss from falling upon the insurance company and enable the insurance company to serve more clients. See, e.g., Unigard Sec. Ins. Co., Inc. v. North River Ins. Co., 4 F.3d 1049, 1053 (2d Cir.1993). Unlike typical insurance contracts that are offered on a take-it-or-leave-it basis, rein-sureds ordinarily negotiate the terms, conditions, and rates in their reinsurance contracts. For nearly 30 years MCCC purchased reinsurance coverage from ERC. From January 1, 1994, until April 1, 2000, ERC and MCCC operated under the Agreement whose meaning is at issue in this appeal. The Agreement required ERC to reimburse MCCC for all “loss” in excess of $300,000 for each occurrence, with a reinsurance limit of $1,000,000 for each occurrence. Additionally, the Agreement required ERC to reimburse MCCC for “claim expenses” at a rate equal to the fraction of the “loss” for which ERC was responsible. If, for example, MCCC had to pay a “loss” of $500,000, ERC would have to reimburse MCCC for $200,000 of that “loss” ($500,000 — $300,000). Because ERC thus paid 40% of the total “loss” ($200,000/$500,000 = 40%), ERC would reimburse MCCC for 40% of the “claim expenses” MCCC incurred. The parties dispute the meaning of the terms “loss” and “claim expenses” in the Agreement. Article VIII of the Agreement defines “loss”: The word “loss” shall mean only such amounts: (a) within applicable policy limits as are actually paid by [MCCC] in settlement of claims or in satisfaction of awards or judgments (including prejudgment interest and plaintiffs costs included in the judgment and subject with the judgment to the applicable policy limit); (b) equal to 80% of the amount paid by [MCCC] in excess of applicable third party liability coverage policy limits occasioned by liability imposed upon [MCCC] on account of the failure of [MCCC] to settle a claim for an amount within such policy limits; (c)(1) equal to 80% of the amount paid by [MCCC] for punitive, exemplary, or compensatory damages awarded to the insured and arising out of the conduct of [MCCC] in" }, { "docid": "7707803", "title": "", "text": "HARTZ, Circuit Judge. The parties to this appeal are two insurance companies. Employers Reinsurance Corp. (ERC) and Mid-Continent Casualty Co. (MCCC), a property and casualty in surance company, entered into a Liability Excess Reinsurance Agreement (the Agreement). Under the Agreement ERC reinsured MCCC with respect to certain payments and expenses for which MCCC was responsible to its insureds under policies it issued. In addition, ERC insured MCCC for some extra-contractual liabilities it might incur to its insureds — such as liability for bad faith denial of a claim. Of particular concern on appeal, if MCCC had to pay a “loss” exceeding $300,000, ERC would reimburse MCCC for the excess of the loss above $300,000, up to a maximum loss of $1,000,000. (We will refer to the $300,000 threshold as MCCC’s “retention,” which is similar to a deductible in ordinary insurance policies.) Additionally, the Agreement required ERC to pay a share of “claim expenses” incurred by MCCC if the retention was exceeded. The amounts disputed in this case arise out of declaratory judgment actions between MCCC and its insureds. In several such actions it was determined that MCCC should have provided its insured with a defense to a tort action brought by a third party against the insured. As a result, (1) MCCC had to pay its insureds the attorney fees and expenses incurred by the insureds in the declaratory judgment actions; (2) MCCC paid its own attorney fees and expenses in the declaratory judgment actions; and (3) MCCC had to pay the attorney fees incurred by the insureds in defending the underlying tort actions. This appeal centers on whether these payments and expenses were covered by the Agreement as “losses,” “claim expenses,” or neither. Regarding the first type of payment, MCCC contends that the Agreement’s definition of “loss” unambiguously requires ERC to reimburse amounts MCCC paid to its insureds to cover the insureds’ attorney fees in the declaratory judgment actions. ERC contends that the Agreement unambiguously imposes no such obligation. We disagree with both, reverse the district court’s summary judgment on the issue in favor of MCCC, and remand for" }, { "docid": "21108361", "title": "", "text": "Mercury Inv. Co. v. F.W. Woolworth Co., 706 P.2d 523, 529 (Okla.1985), and we will not rely on extrinsic evidence to vary or alter the plain meaning. See, e.g., Empire Oil & Ref. Co. v. Babson, 182 Okla. 336, 77 P.2d 682, 684 (1938) (ruling that resort to extraneous evidence is proper only if the contract is ambiguous.) A. The Question of Ambiguity Because Gamble Simmons seeks to prove the parties’ intent by utilizing extrinsic evidence, we must determine the admissibility of such evidence by first deciding as a matter of law whether the terms of the contract between Kerr-McGee and Gamble Simmons are ambiguous. Kerr-McGee Corp. v. Admiral Ins. Co., 905 P.2d 760, 762 (Okla.1995). Oklahoma law states “[a] contract is ambiguous if reasonably susceptible of more than one interpretation.” Williams v. Shearson Lehman Bros., Inc., 917 P.2d 998, 1004 (Okla.Ct.App.1996), or “through vagueness of expression it has a double meaning.” See Cinocca v. Baxter Labs., Inc., 400 F.Supp. 527, 532 (E.D.Okla.1975). In other words, a contract is ambiguous if reasonably intelligent persons, on reading the contract, would honestly differ as to its proper meaning. See United States Fidelity & Guar. Co. v. Guenther, 281 U.S. 34, 37, 50 S.Ct. 165, 74 L.Ed. 683 (1930). In this case, we acknowledge the parties’ basic disagreement over the interpretation of several provisions of the contract. However, the mere fact that the parties disagree about the meaning of a contract or argue for a different construction does not necessarily make the agreement ambiguous. A party cannot manufacture an ambiguity in a contract that is clear on its face merely by filing a lawsuit contesting its meaning or claiming an alternative interpretation. Moreover, if a contract is plain and unambiguous, it does not become ambiguous because its operation will work a hardship upon one of the parties and a corresponding advantage to the other. The dispositive factor in our analysis is not whether the parties disagree or inequity results, but whether an examination of the entire agreement reveals more than one reasonable interpretation. Bartmann v. Maverick Tube Corp., 853 F.2d 1540, 1545 (10th" }, { "docid": "7707815", "title": "", "text": "Judgment Actions We first consider whether the Agreement requires ERC to reimburse MCCC for MCCC’s payment of its insureds’ attorney fees and expenses in the declaratory judgment actions. The resolution of this issue turns on whether the Agreement includes such payments within the definition of “loss.” Each party contends that the Agreement is unambiguous. Rejecting their views, we hold that the language of the Agreement is, as a matter of law, ambiguous on this point. The pertinent part of the Agreement’s definition of “loss” is as follows: The word “loss” shall mean only such amounts: paid by [MCCC] for punitive, exemplary, or compensatory damages awarded to the insured and arising out of the conduct of [MCCC] in the investigation, trial or settlement of any claim or failure to pay or delay in payment of any benefits under any policy.... Article VIII, ¶¶ (c)(1), (c)(2), App. 600. As do the parties, we focus on the phrase “compensatory damages awarded to the insured.” The Agreement does not define “compensatory damages.” MCCC urges that the insureds’ attorney fees and expenses in the declaratory judgment actions constitute “compensatory damages.” ERC contends that the attorney fees and expenses are not “compensatory damages,” but rather “litigation costs” for which it need not reimburse MCCC. Before analyzing the phrase, we consider an argument by ERC that appears to make the intent of the parties irrelevant. ERC asserts that although Oklahoma law governs the interpretation of the Agreement, the Full Faith and Credit Clause of the United States Constitution requires that Texas law govern whether the attorney fees and expenses are “loss” or “litigation costs.” Because the amounts at stake were awarded in Texas courts, it argues, the Texas courts’ characterization of these amounts — as compensatory damages, costs, or otherwise — is entitled to full faith and credit in other States. Thus, ERC concludes, we are bound by Texas law declaring that the judgments awarded by the Texas courts were “litigation costs” rather than “compensatory damages.” We disagree. The parties to the Agreement could define “compensatory damages” as they saw fit, without regard to the characterization by" }, { "docid": "7707824", "title": "", "text": "Ins. Co. v. N. River Ins. Co., 4 F.3d 1049, 1064-65 (2d Cir.1993). In any event, Oklahoma appears to have codified the rule. An Oklahoma statute states: “In cases of uncertainty not removed by the preceding rules [15 Okla. Stat. §§ 151-69], the language of a contract should be interpreted most strongly against the party who caused the uncertainty to exist. The promisor is presumed to be such party....” 15 Okla. Stat. § 170. Yet the statute itself, as well as courts construing the statute, state that this rule is to be applied only when the ambiguity has not been “removed by the preceding [statutory] rules.” Id.; see, e.g., Cities Service Oil Co. v. Geolograph Co., 208 Okla. 179, 254 P.2d 775, 782 (1953). Among the preceding rules is 15 Okla. Stat. § 163, which states that “[a] contract may be explained by reference to the circumstances under which it was made, and the matter to which it relates.” Accordingly, a court should not resort to the doctrine of contra proferentem until the parties have an opportunity to present the circumstances surrounding the execution of the contract and other relevant evidence, such as custom in the industry. See Restatement (Second) of Contracts § 202 (setting forth types of evidence appropriate to consider in construing contracts). That opportunity should be afforded the parties here. We therefore remand this issue to the district court for further proceedings regarding the meaning of “compensatory damages” in the Agreement. B. MCCC’s Own Attorney Fees Incurred in Declaratory Judgment Actions We next address whether the Agreement requires ERC to indemnify MCCC for MCCC’s own attorney fees and expenses associated with the declaratory judgment actions. The answer turns on whether these attorney fees and expenses constitute “claim expenses” within the meaning of the Agreement. The district court held that MCCC’s attorney fees and expenses were such “claim expenses” and therefore were subject to proportionate reimbursement as provided in the Agreement. The Agreement defines “claim expenses” to “mean all payment under the supplementary payments provisions of [MCCC’s] policy, including court costs, interest upon judgments, and allocated investigation, adjustment" }, { "docid": "7707825", "title": "", "text": "an opportunity to present the circumstances surrounding the execution of the contract and other relevant evidence, such as custom in the industry. See Restatement (Second) of Contracts § 202 (setting forth types of evidence appropriate to consider in construing contracts). That opportunity should be afforded the parties here. We therefore remand this issue to the district court for further proceedings regarding the meaning of “compensatory damages” in the Agreement. B. MCCC’s Own Attorney Fees Incurred in Declaratory Judgment Actions We next address whether the Agreement requires ERC to indemnify MCCC for MCCC’s own attorney fees and expenses associated with the declaratory judgment actions. The answer turns on whether these attorney fees and expenses constitute “claim expenses” within the meaning of the Agreement. The district court held that MCCC’s attorney fees and expenses were such “claim expenses” and therefore were subject to proportionate reimbursement as provided in the Agreement. The Agreement defines “claim expenses” to “mean all payment under the supplementary payments provisions of [MCCC’s] policy, including court costs, interest upon judgments, and allocated investigation, adjustment and legal expenses.” This definition incorporates by reference the supplementary payments provisions of MCCC’s policies with its insureds. The “Statement of Uncontroverted Facts” in ERC’s memorandum in support of its motion for summary judgment contained what it asserted to be the language of the supplementary payments provisions. MCCC’s response stated that the assertion was “uncontroverted.” App. 1673 ¶ 7. The pertinent part of that language is as follows: SUPPLEMENTARY PAYMENTS COVERAGES A AND B We will pay, with respect to any claim we investigate or settle or “suit” against an insured we defend: A. All expenses we incur These payments will not reduce the limits of insurance. The district court held: A plain reading of the supplementary payments provision indicates that it covers MCCC’s declaratory judgment fees and expenses. The provision provides that MCCC will pay all expenses which it incurs with respect to any claim that it investigates. Certainly, MCCC investigated the claims for which it litigated coverage. Moreover, the fees and expenses which MCCC incurred in the declaratory judgment proceedings are expenses which" } ]

[ { "docid": "16118220", "title": "", "text": "do not understand the certificate to seek our aid in the determination of this question of local law. In any event, we think it appropriate that the question of local law should be answered by the courts of the District before this Court is called upon to answer it, or to consider the application and effect of the second part of Rule 17 (b) in an action in debt brought in the District of Columbia against an unincorporated labor union. There are cogent reasons why this Court should not undertake to decide questions of local law without the aid of some expression of the views of judges of the local courts who are familiar with the intricacies and trends of local law and practice. We do not ordinarily decide such questions without that aid where they may conveniently be decided in the first instance by the court whose special function it is to resolve questions of the local law of the jurisdiction over which it presides. Huddleston v. Dwyer, 322 U. S. 232, 237, and cases cited. Only in exceptional cases will this Court review a determination of such a question by the Court of Appeals for the District. District of Columbia v. Pace, 320 U. S. 698, 702, and cases cited. It is not the function of the certificate authorized by 28 U. S. C. § 346 to require this Court to answer questions not shown to be necessary to the decision of the case. A question will not be answered if it is hypothetical, Webster v. Cooper, 10 How. 54, 55; Pelham v. Rose, 9 Wall. 103, 107; White v. Johnson, 282 U. S. 367, 373; Lowden v. Northwestern National Bank Co., 298 U. S. 160, 162-163, or if it is dependent upon other questions which may not appropriately be answered, Jewell v. Knight, 123 U. S. 426, 432-433, 435; Lowden v. Northwestern National Bank Co., supra, 166. This Court will not answer a question which will not arise in the pending controversy unless another issue, not yet resolved by the certifying court, is decided in a particular" } ]

[ { "docid": "4384981", "title": "", "text": "to perpetrate any offense punishable by imprisonment in the penitentiary, kills another, is guilty of murder in the first degree.” It will be observed that the code employs the term “purposely” in defining murder in the first degree and that the word “purposely” is so placed in the statute as to apply not only to a homicide consummated with deliberate and premeditated malice, but also to a homicide committed in perpetrating another felony. Some difficulty and confusion has been caused by the application of the word “purposely” to murders committed in perpetrating another felony (Marcus v. United States, [66 App.D.C. 298], 86 F.2d 854; Jordan v. United States, [66 App.D.C. 309], 87 F.2d 64). It would seem that this word has no proper function in connection with homicides committed in the perpetration of another felony and should be limited to a murder committed wih deliberate and premeditated malice. An examination of the statutes of the several States indicates that only Ohio employs the word “purposely” in the manner in which it is used in the District of Columbia Code (Ohio Penal Code, title I, c. (3), sec. 12400). In most of the other States the killing of a human being when perpetrated in the commission of another felony, constitutes murder in the first degree and purpose is not an element of the crime under such circumstances. I, therefore, suggest that the statute should be clarified so as to render the word “purposely” solely a limitation on deliberate and premeditated homicides, instead of being applicable as well to the other type of murder heretofore referred to. In order to accomplish this result, I suggest that the statute be amended to read as follows: “Whoever, being of sound memory and discretion, kills another purposely and either of deliberate and premeditated malice or by means of poison, or kills another in perpetrating or in attempting to perpetrate any offense punishable by imprisonment in the penitentiary, is guilty of murder in the first degree.” A bill to carry into effect the foregoing recommendation has been drafted in this Department and is enclosed herewith. I" }, { "docid": "23101650", "title": "", "text": "law is confined to the District. District of Columbia v. Pace, 320 U. S. 698, 702; Busby v. Electric Utilities Union, 323 U. S. 72, 76. That law is not only peculiarly local; it is a compendium of a variety of laws drawn from numerous sources, with which the judges in the District are much more familiar than are we. No legal problem is more obviously peculiar to the District than the one posed by the present case. Traffic, including the movement of tourists, is a special concern of local government. The District Court held that the Secretary of the Interior, not WMATC, was the appropriate licensing authority. The Court of Appeals by a two-to-one vote reversed but did not file an opinion because “the interests of the parties and of the public would be better served” by a prompt disposition of the case. The Court of Appeals en banc, two judges dissenting, denied a petition for rehearing. The contrariety of views below suggests that this question of local law is not free from doubt. Certainly it is not a case where the decision is so palpably wrong as to make it the exceptional case for review by this Court. Nor is this question of local law so enmeshed with constitutional questions as to make appropriate its resolution here. See District of Columbia v. Little, 339 U. S. 1, 4, n. 1; District of Columbia v. Thompson Co., 346 U. S. 100. These considerations make much more appropriate here than in Fisher v. United States, 328 U. S. 463, 476 (from which the quotation is taken), the following observation: “Matters relating to law enforcement in the District are entrusted to the courts of the District. Our policy is not to interfere with the local rules of law which they fashion, save in exceptional situations where egregious error has been committed. “Where the choice of the Court of Appeals of the District of Columbia in local matters between conflicting legal conclusions seems nicely balanced, we do not interfere.” The present case could not be more precisely described. The law of the" }, { "docid": "918516", "title": "", "text": "verdicts. In appellant’s case it is not reasonable to infer that the failure to follow a lesser included offense approach may have confused the jury on the issue of guilt of felony-murder. We cannot say that the jury’s concurrent consideration of both felony-murder and second degree mur der reflects a plain violation, of substantial rights. Unless and until the question is reconsidered by Congress, perhaps in the light of recommendations of the new Commission on Revision of the Criminal Laws of the District of Columbia, the trial judge has no discretion to give less than the life sentence for felony-murder. That judgment is accordingly Affirmed. . See, ante, p. 1204. . See, e.g., charge quoted below in note 7. . In capital cases, the court is particularly likely to find “plain error” when the error is substantial enough to constitute prejudicial error. See, e. g., Tatum v. United States, 88 U.S.App.D.C. 380, 190 F.2d 612 (1951), and cases cited at 88 U.S.App.D.C. 388 n. 3, 190 F.2d 614 n. 3. . 22-2401. Whoever, being of sound memory and discretion, kills another purposely, either of deliberate and premeditated malice or by means of poison, or in perpetrating or attempting to perpetrate any offense punishable by imprisonment in the penitentiary, or without purpose so to do kills another in perpetrating or in attempting to perpetrate any arson, as defined in section 22-401 or 22-402, rape, mayhem, robbery, or kidnapping, or in perpetrating or attempting to perpetrate any housebreaking while armed with or using a dangerous weapon, is guilty of murder in the first degree. 22-2402. Whoever maliciously places an obstruction upon a railroad or street railroad, or displaces or injures anything appertaining thereto, or does any other act with intent to endanger the passage of any locomotive or car, and thereby occasions the death of another, is guilty of murder in the first degree. 22-2403. Whoever with malice aforethought, except as provided in sections 22-2401, 22-2402, kills another, is guilty of murder in the second degree. . 120 U.S.App.D.C. at 132, 344 F.2d at 517. . 120 U.S.App.D.C. at 131, 344 F.2d" }, { "docid": "4384980", "title": "", "text": "Senator: Experience in the administration of the statute of the District of Columbia relating to murder, leads to the conclusion that the existing law requires some clarification. Section 798 of the Code of Law for the District of Columbia (act of Mar. 3, 1901, 31 Stat. 1189) defines murder in the first degree. It includes within such definition a killing perpetrated purposely and either of deliberate and premeditated malice or by means of poison, and in addition, a killing committed in perpetrating or in attempting to perpetrate any offense punishable by imprisonment in a penitentiary. In providing that a homicide committed in the perpetration of another felony constitutes murder in the first degree, the law of the District of Columbia is in accord with the law of most States, as well as in accord with the common law. Section 798 of the District of Columbia Code reads as follows: “Whoever, being of sound memory and discretion, purposely, and either of deliberate and premeditated malice or by means of poison, or in perpetrating or in attempting to perpetrate any offense punishable by imprisonment in the penitentiary, kills another, is guilty of murder in the first degree.” It will be observed that the code employs the term “purposely” in defining murder in the first degree and that the word “purposely” is so placed in the statute as to apply not only to a homicide consummated with deliberate and premeditated malice, but also to a homicide committed in perpetrating another felony. Some difficulty and confusion has been caused by the application of the word “purposely” to murders committed in perpetrating another felony (Marcus v. United States, [66 App.D.C. 298], 86 F.2d 854; Jordan v. United States, [66 App.D.C. 309], 87 F.2d 64). It would seem that this word has no proper function in connection with homicides committed in the perpetration of another felony and should be limited to a murder committed wih deliberate and premeditated malice. An examination of the statutes of the several States indicates that only Ohio employs the word “purposely” in the manner in which it is used in the" }, { "docid": "22201482", "title": "", "text": "ed., 1909) §51; American Law Institute, Code of Criminal Procedure (Official Draft, 1930) §457 (2); Orfield, Criminal Appeals in America (1939) 83 et seq. The reasons for such review are succinctly stated in the Thirteenth Report of the Massachusetts Judicial Council, supra, at 29: “In substance this [denial of the right to consider the facts by the appellate court] means that there is no review of the discretion of the single judge. Thus a matter of life or death, once treated [in Massachusetts] with the utmost care, even beyond the requirements of the law, has now been committed to a single judge of the Superior Court, with no review whatever on its most vital aspects. Such a situation places an unfair responsibility upon the trial judge and upon the governor, is a potential threat to justice and is not reassuring to the public who have a right to demand that judicial consideration should be exhausted before a man is condemned to death.” As to certain classes of litigation that come here, this Court has, of course, always had power to review the evidence. E. g., “[Since] by an appeal, except when specially provided otherwise, the entire case on both law and facts is to be reconsidered, there seems to be little doubt that, so far as it is essential to a proper decision of this case, the appeal requires us to examine into the evidence brought to sustain or defeat the right of the petitioner to his discharge.” In re Neagle, 135 U. S. 1, 42. District of Columbia Code (1940) § 22-2401: “Whoever, being of sound memory and discretion, kills another purposely, either of deliberate and premeditated malice or by means of poison, or in perpetrating or attempting to perpetrate any offense punishable by imprisonment in the penitentiary, or without purpose so to do kills another in perpetrating or in attempting to perpetrate any arson, as defined in section 22-401 or 22-402 of this Code, rape, mayhem, robbery, or kidnapping, or in perpetrating or in attempting to perpetrate any housebreaking while armed with or using a dangerous weapon, is" }, { "docid": "22715021", "title": "", "text": "States . . . shall ... be sentenced to a term of imprisonment for not less than one year nor more than ten years.” • Clearly, any one of a plethora of felonies could serve as the predicate for a violation of § 924 (c)(1). This multiplicity of predicates creates problems When one attempts to apply Blockburger. If one applies the test in the abstract by looking solely to the wording of § 924 (c)(1) and the statutes defining the various predicate felonies, Block-burger would always permit imposition of cumulative sentences, since no particular felony is ever “necessarily included” within a violation of § 924 (c)(1). If, on the other hand, one looks to the facts alleged in a particular indictment brought under § 924 (c)(1), then Blockburger would bar cumulative punishments for violating § 924 (c)(1) and the particular predicate offense charged in the indictment, since proof of the former would necessarily entail proof of the latter. Fortunately, in the case of § 924 (c)(1) Congress made its intention explicit, stating unequivocally that the punishment for violation of that statute should be imposed “in addition to the punishment provided for the commission of [the predicate] felony. . . .” 18 U. S. C. § 924 (c). But in the present case, where the statutes at issue also stand in the relationship of compound and predicate offenses, Congress has not stated its intentions so explicitly. The felony-murder statute under consideration here provides: “Whoever, being of sound memory and discretion, kills another purposely, either of deliberate and premeditated malice or by means of poison, or in perpetrating or attempting to perpetrate any offense punishable by imprisonment in the penitentiary, or without purpose so to do kills another in perpetrating or in attempting to perpetrate any arson, . . . rape, mayhem, robbery, or kidnapping, or in perpetrating or attempting to perpetrate any housebreaking while armed with or using a dangerous weapon, is guilty of murder in the first degree.” D. C. Code § 22-2401 (1973). The rape statute under consideration reads, in relevant part: “Whoever has carnal knowledge of a female" }, { "docid": "9743183", "title": "", "text": "(1956). . See Wright v. United States, supra; Connecticut Mutual Life Ins. Co. v. La-throp, 111 U.S. 612, 619-622, 4 S.Ct. 533, 28 L.Ed. 536 (1884); Queenan v. Territory of Oklahoma, 109 U.S. 548, 549, 23 S.Ct. 762, 47 L.Ed. 1175 (1902); DeBruin v. DeBruin, 90 U.S.App.D.C. 236, 195 F.2d 763 (1952); Travelers Ins. Co. v. Childs, 272 F.2d 855 (2d Cir. 1959); 2 Wigmore § 568. at 664-665; 3 id. § 689; 7 id. §§ 1933-1938. . Blunt v. United States, 100 U.S.App.D.C. 266, 244 F.2d 355 (1957); Lyles v. United States, 103 U.S.App.D.C. 22, 254 F.2d 725 (1957) (era banc), cert. denied, 356 U.S. 961, 78 S.Ct. 997, 2 L.Ed.2d 1067 (1958); 5 Wigmore § 1671(5). . Section 22-2401 provides: “Whoever, being of sound memory and discretion, kills another purposely, either of deliberate and premeditated malice or by means of poison, or in perpetrating or attempting to perpetrate any offense punishable by imprisonment in the penitentiary, or without purpose so to do kills another in perpetrating or in attempting to perpetrate any arson, * * * rape, may hem, robbery, or kidnapping, or in pei-petrating or attempting to perpetrate any housebreaking while armed with or using a dangerous weapon, is guilty of murder in the first degree.” Section 22-2402 deals with first degree murder in maliciously obstructing railroads or street railroads. . Compare 18 U.S.C. § 1111 (1958) : ‘‘(a) Murder is the unlawful killing of a human being with malice aforethought. Every murder perpetrated by poison, lying in wait, or any other kind of willful, deliberate, malicious, and premeditated killing; or committed in the perpetration of, or attempt to perpetrate, any arson, rape, burglary, or robbery; or perpetrated from a premeditated design unlawfully and maliciously to effect the death of any human being other than Mm who is killed, is murder in the first degree. Any other murder is murder in the second degree.” (Emphasis supplied.) This provision states more clearly the intent of the District of Columbia Code. . See Screws v. United States, 325 U.S. 91, 107, 65 S.Ct. 1031, 89 L.Ed. 1495 (1945); Williams" }, { "docid": "4384979", "title": "", "text": "here in the police arrangements for confrontation of the two accused. That each in one respect or other charged his brother with varying aspects of the crimes does not militate against cross-examination by the prosecution as to phases of their revelations. Such situations are common when two or more criminals proceed jointly in some nefarious venture. The contentions urged upon us come to no more than this; appellant would have us order a new trial although he stated under oath that he committed the crime of robbery which culminated in the death of Officer Brereton at the appellant’s hands. Any such outcome would be a trifling with the administration of the criminal law, and we perceive no error affecting substantial rights. VI We need not discuss, although we have explored and fully considered appellant’s other contentions. We find no error. We are convinced appellant’s trial was fair and thorough, and his convictions must be Affirmed. Appendix December 30,1938. Hon. Henry F. Ashurst, Chairman, Committee on the Judiciary, United States Senate, Washington, D. C. My Dear Senator: Experience in the administration of the statute of the District of Columbia relating to murder, leads to the conclusion that the existing law requires some clarification. Section 798 of the Code of Law for the District of Columbia (act of Mar. 3, 1901, 31 Stat. 1189) defines murder in the first degree. It includes within such definition a killing perpetrated purposely and either of deliberate and premeditated malice or by means of poison, and in addition, a killing committed in perpetrating or in attempting to perpetrate any offense punishable by imprisonment in a penitentiary. In providing that a homicide committed in the perpetration of another felony constitutes murder in the first degree, the law of the District of Columbia is in accord with the law of most States, as well as in accord with the common law. Section 798 of the District of Columbia Code reads as follows: “Whoever, being of sound memory and discretion, purposely, and either of deliberate and premeditated malice or by means of poison, or in perpetrating or in attempting" }, { "docid": "22582229", "title": "", "text": "in its brief — that it is regrettable when the concurrent findings of 36 jurors are not sufficient finally to terminate a case. But under our system, a man is entitled to the findings of 12 jurors on evidence fairly and properly presented to them. Petitioner may not be deprived of his life until that right is accorded him. That right was denied here by the prosecutor’s improper questions. Reversed. “In trial of all persons charged with the commission of offenses against the United States and in all proceedings in courts martial and courts of inquiry in any State, District, Possession or Territory, the person charged shall, at his own request, be a competent witness. His failure to make such request shall not create any presumption against him.” 62 Stat. 833, 18 U. S. C. § 3481. Wilson v. United, States, 149 U. S. 60. “Whoever, being of sound memory and discretion, kills another purposely, either of deliberate and premeditated malice or by means of poison, or in perpetrating or attempting to perpetrate any offense punishable by imprisonment in the penitentiary, or without purpose so to do kills another in perpetrating or in attempting to perpetrate any arson, as defined in section 22-401 or 22-402 of this Code, rape, mayhem, robbery, or kidnapping, or in perpetrating or in attempting to perpetrate any housebreaking while armed with or using a dangerous weapon, is guilty of murder in the first degree.” District of Columbia Code § 22-2401. (Emphasis supplied.) Section 22-2404 of the District of Columbia Code provides: “The punishment of murder in the first degree shall be death by electrocution.” The first conviction was set aside because of erroneous instructions on the defense of insanity. 94 U. S. App. D. C. 293, 214 F. 2d 879. The second conviction was set aside because of improper argument by the prosecutor. 101 U. S. App. D. C. 51, 247 F. 2d 42. 107 U. S. App. D. C. 159, 160, 275 F.2d 617, 618. The following excerpt from petitioner's testimony is entirely typical: “Q. Who is your lawyer? ■“A. Well, I mean, I" }, { "docid": "23026439", "title": "", "text": "attempting to perpetrate any offense punishable by imprisonment in the penitentiary, or without purpose so to do kills another in perpetrating or in attempting to perpetrate any arson, as defined in section 22-501 or 22-402 of this Code, rape, mayhem, robbery, or kidnapping, or in perpetrating or in attempting to perpetrate any housebreaking while armed with or using a dangerous, weapon, is guilty of murder in the first degree.” Section 22-2403, District of Columbia Code, states murder in the second degree to be as follows: “Whoever with malice aforethought, except as provided in sections 22-2401, 22-2402, kills another, is guilty of murder in the second degree.” From a reading of these two sections it would appear that first degree mur- , der, according to the District of Columbia law, requires deliberate and premeditated malice, while second degree murder ' prescribes only for malice aforethought, the distinguishing element being the premeditation. It is apparent these degrees closely parallel the military gradations of the offense. The United States Court of Appeals for the District of Columbia, in the case of Bishop v. United States, 107 F2d 297, had before it the particular question which now concerns us. In view of the excellent treatment of the subject we quote at some length from that case: (pp 301-302) “Under the District of Columbia statute, a homicide committed purposely and with deliberate and premeditated malice is murder in the first degree. A homicide committed with malice aforethought, without deliberation and premeditation, is murder in the second degree. . . . “Intoxication at common law was no defense to the crime of murder. It could neither justify an acquittal, nor reduce common law murder to manslaughter. From an early day to this hour, the law has declared that intoxication is not an excuse for the commission of a crime. While it has long been recognized that intoxication per se is no defense to the fact of guilt, the stated condition of a defendant’s mind at the time of the killing in respect of its ability to form the intent to kill, or if formed to deliberate" }, { "docid": "22715022", "title": "", "text": "punishment for violation of that statute should be imposed “in addition to the punishment provided for the commission of [the predicate] felony. . . .” 18 U. S. C. § 924 (c). But in the present case, where the statutes at issue also stand in the relationship of compound and predicate offenses, Congress has not stated its intentions so explicitly. The felony-murder statute under consideration here provides: “Whoever, being of sound memory and discretion, kills another purposely, either of deliberate and premeditated malice or by means of poison, or in perpetrating or attempting to perpetrate any offense punishable by imprisonment in the penitentiary, or without purpose so to do kills another in perpetrating or in attempting to perpetrate any arson, . . . rape, mayhem, robbery, or kidnapping, or in perpetrating or attempting to perpetrate any housebreaking while armed with or using a dangerous weapon, is guilty of murder in the first degree.” D. C. Code § 22-2401 (1973). The rape statute under consideration reads, in relevant part: “Whoever has carnal knowledge of a female forcibly and against her will . . . shall be imprisoned for any term of years or for life.” D. C. Code § 22-2801 (1973). If one tests the above-quoted statutes in the abstract, one can see that rape is not a lesser included offense of felony murder, because proof of the latter will not necessarily require proof of the former. One can commit felony murder without rape and one can rape without committing felony murder. If one chooses to apply Blockburger to the indictment in the present case, however, rape is a “lesser included offense” of felony murder because,- in this particular case, the prosecution could not prove felony murder without proving the predicate rape. Because this Court has. never been forced to apply Blockburger in the context of compound and predicate offenses, we have not had to decide whether Blockburger should be applied abstractly to the statutes in question or specifically to the indictment as framed in a particular case. Our past decisions seem to have assumed, however, that Blockburger’s analysis stands or" }, { "docid": "22201449", "title": "", "text": "drunkenness in language which has been said to be broad enough to cover mental deficiency. Hopt v. People, 104 U. S. 631, 634. It should be noted, however, that the Territory of Utah had a statute specifically establishing such a rule. No one doubts that there are more possible classifications of mentality than the sane and the insane. White, Insanity and the Criminal Law 89. Criminologists and psychologists have weighed the advantages and disadvantages of the adoption of the theory of partial responsibility as a basis of the jury’s determination of the degree of crime of which a mentally deficient defendant may be guilty. Congress took a forward step in defining the degrees of murder so that only those guilty of deliberate and premeditated malice could be convicted of the first degree. It may be that psychiatry has now reached a position of certainty in its diagnosis and prognosis which will induce Congress to enact the rule of responsibility for crime for which petitioner contends. For this Court to force the District of Columbia to adopt such a requirement for criminal trials would involve a fundamental change in the common law theory of responsibility. We express no opinion upon whether the theory for which petitioner contends should or should not be made the law of the District of Columbia. Such a radical departure from common law concepts is more properly a subject for the exercise of legislative power or at least for the discretion of the courts of the District. The administration of criminal law in matters not affected by constitutional limitations or a general federal law is a matter peculiarly of local concern. Compare McNabb v. United States, 318 U. S. 332, with Ashcraft v. Tennessee, 322 U. S. 143, 156. This Court has in a less important matter undertaken to adjust by decision an outmoded rule of the common law to modern conditions. But when that step was taken, it was declared that “experience has clearly demonstrated the fallacy or unwisdom of the old rule.” Funk v. United States, 290 U. S. 371, 381. See Weiler v. United" }, { "docid": "23026438", "title": "", "text": "Premeditated murder is murder committed after the formation of a specific intention to kill someone and consideration of the act intended. Premeditation imports substantial, although brief, deliberation or design.” Article of War 92, supra, which is the foundation for the discussion, points up the two different gradations in the following language: “Any person subject to military law found guilty of murder shall suffer death or imprisonment for life, as a court-martial may. direct; but if fohnd guilty of murder not premeditated, he shall be punished as a court-martial may direct.” In further developing this subject we believe it might be helpful to compare the military murder offenses with those of the District of Columbia and then quote from two eases which have considered the effect of intoxication on murder as defined in the law of the District. Section 22-2401, District of Columbia Code, defines murder in the first degree as follows: “Whoever, being of sound memory and discretion, kills another purposely, either of deliberate and premeditated-malice or by means of poison, or in perpetrating or attempting to perpetrate any offense punishable by imprisonment in the penitentiary, or without purpose so to do kills another in perpetrating or in attempting to perpetrate any arson, as defined in section 22-501 or 22-402 of this Code, rape, mayhem, robbery, or kidnapping, or in perpetrating or in attempting to perpetrate any housebreaking while armed with or using a dangerous, weapon, is guilty of murder in the first degree.” Section 22-2403, District of Columbia Code, states murder in the second degree to be as follows: “Whoever with malice aforethought, except as provided in sections 22-2401, 22-2402, kills another, is guilty of murder in the second degree.” From a reading of these two sections it would appear that first degree mur- , der, according to the District of Columbia law, requires deliberate and premeditated malice, while second degree murder ' prescribes only for malice aforethought, the distinguishing element being the premeditation. It is apparent these degrees closely parallel the military gradations of the offense. The United States Court of Appeals for the District of Columbia, in" }, { "docid": "23101651", "title": "", "text": "Certainly it is not a case where the decision is so palpably wrong as to make it the exceptional case for review by this Court. Nor is this question of local law so enmeshed with constitutional questions as to make appropriate its resolution here. See District of Columbia v. Little, 339 U. S. 1, 4, n. 1; District of Columbia v. Thompson Co., 346 U. S. 100. These considerations make much more appropriate here than in Fisher v. United States, 328 U. S. 463, 476 (from which the quotation is taken), the following observation: “Matters relating to law enforcement in the District are entrusted to the courts of the District. Our policy is not to interfere with the local rules of law which they fashion, save in exceptional situations where egregious error has been committed. “Where the choice of the Court of Appeals of the District of Columbia in local matters between conflicting legal conclusions seems nicely balanced, we do not interfere.” The present case could not be more precisely described. The law of the District of Columbia is (1) the principles and maxims of equity as they existed in England and in the Colonies in 1776; (2) the common law of England and the Acts of Parlia ment which were in effect in the Colonies in 1776 (and which were not locally inapplicable); (3) the laws of Virginia and Maryland as they existed on February 27, 1801 (2 Stat. 103); (4) the Acts of the Legislative Assembly created by the Act of February 21, 1871 (16 Stat. 419); (6) all Acts of Congress applicable to the District. See District of Columbia Code (1940 ed.), Tit. 1-24, p. IX el seq.; Comp. Stat. D. C. 1887-1889, pp. V-VI." }, { "docid": "22201451", "title": "", "text": "States, 323 U. S. 606, 609. Matters relating to law enforcement in the District are entrusted to the courts of the District. Our policy is not to interfere with the local rules of law which they fashion, save in exceptional situations where egregious error has been committed. Where the choice of the Court of Appeals of the District of Columbia in local matters between conflicting legal conclusions seems nicely balanced, we do not interfere. District of Columbia v. Pace, 320 U. S. 698, 702; Busby v. Electric Utilities Union, 323 U. S. 72, 74-5. The policy of deferring to the District’s courts on local law matters is reinforced here by the fact that the local law now challenged is long established and deeply rooted in the District. Affirmed. Mr. Justice Jackson took no part in the consideration or decision of this case. The Code of Law for the District of Columbia (1940 Ed.) provides as follows: Title 22, § 2401, “Whoever, being of sound memory and discretion, kills another purposely, either of deliberate and premeditated malice or by means of poison, or in perpetrating or attempting to perpetrate any offense punishable by imprisonment in the penitentiary, or without purpose so to do kills another in perpetrating or in attempting to perpetrate any arson, as defined in section 22-401 or 22-402 of this Code, rape, mayhem, robbery, or kidnapping, or in perpetrating or in attempting to perpetrate any housebreaking while armed with or using a dangerous weapon, is guilty of murder in the first degree.” Title 22, § 2403, “Whoever with malice aforethought, except as provided in sections 22-2401,22-2402, kills another, is guilty of murder in the second degree.” Title 22, § 2404, “The punishment of murder in the first degree shall be death by electrocution. The punishment of murder in the second degree shall be imprisonment for life, or for not less than twenty years.” “The only conclusion that seems warrantable is that, at some time or other and by some reputable authority, the term psychopathic personality has been used to designate every conceivable type of abnormal character.” Curran and" }, { "docid": "23076752", "title": "", "text": "borne out by the Fisher case, supra. (Note 8.) On appeal from a conviction of murder for which a sentence of death was imposed, the defendant urged the Supreme Court to declare that “mental weakness, short of [that necessary to constitute] legal insanity”, 328 U.S. at page 473, 66 S.Ct. at page 1323, be a relevant factor in determining whether an accused is guilty of murder in the first degree, (a crime in which premeditation and deliberation are essential elements) or murder in the second degree. The Supreme Court, conscious that a man’s life was at stake, expressly declined to rule on the merits of the contention, stating: “We express no opinion upon whether the theory for which petitioner contends should or should not be made the law of the District of Columbia. * * * “Matters relating to law enforcement in the District are entrusted to the courts of the District. Our policy is not to interfere with the local rules of law which they fashion, save in exceptional situations where egregious error has been committed. “Where the choice of the Court of Appeals of the District of Columbia in local matters between conflicting legal conclusions seems nicely balanced, we do not interfere [citations omitted]. The policy of deferring to the District’s courts on local law matters is reinforced here by the fact that the local law now challenged is long established and deeply rooted in the District.” 328 U.S. at pages 476-477, 66 S.Ct. at page 1325. The Court of Appeals for the District of Columbia was thus at liberty to promulgate a different rule of criminal responsibility than that approved by the Supreme Court in prior decisions. We do not have such authority. III. The Problem Before This Court. Believing as we do that the lone issue in the instant matter is controlled by the decisions of both the Supreme Court and this court and that the question cannot be regarded as an open one, we would ordinarily be inclined to conclude our discussion at this point and affirm the judgment. However, the question at bar, far" }, { "docid": "22201483", "title": "", "text": "course, always had power to review the evidence. E. g., “[Since] by an appeal, except when specially provided otherwise, the entire case on both law and facts is to be reconsidered, there seems to be little doubt that, so far as it is essential to a proper decision of this case, the appeal requires us to examine into the evidence brought to sustain or defeat the right of the petitioner to his discharge.” In re Neagle, 135 U. S. 1, 42. District of Columbia Code (1940) § 22-2401: “Whoever, being of sound memory and discretion, kills another purposely, either of deliberate and premeditated malice or by means of poison, or in perpetrating or attempting to perpetrate any offense punishable by imprisonment in the penitentiary, or without purpose so to do kills another in perpetrating or in attempting to perpetrate any arson, as defined in section 22-401 or 22-402 of this Code, rape, mayhem, robbery, or kidnapping, or in perpetrating or in attempting to perpetrate any housebreaking while armed with or using a dangerous weapon, is guilty of murder in the first degree.” §22-2402: “Whoever maliciously places an obstruction upon a railroad or street railroad, or displaces or injures anything appertaining thereto, or does any other act with intent to endanger the passage of any locomotive or car, and thereby occasions the death of another, is guilty of murder in the first degree.” § 22-2403: “Whoever with malice aforethought, except as provided in sections 22-2401, 22-2402, kills another, is guilty of murder in the second degree.” The legislative history of these sections is meagre. The separation of the crime of murder into two degrees seems to have been first proposed for the District in the Code of 1857. C. 130, §§ 1-2. That Code was never enacted by Congress. The present provisions are the result of a Code prepared by Judge Cox and enacted in 1901. 31 Stat. 1189, 1321. In an historical note that precedes the Code, Judge Cox stated that it was to have been based on the laws of Maryland. District of Columbia Code (1940 ed.) xiv. In" }, { "docid": "22201450", "title": "", "text": "adopt such a requirement for criminal trials would involve a fundamental change in the common law theory of responsibility. We express no opinion upon whether the theory for which petitioner contends should or should not be made the law of the District of Columbia. Such a radical departure from common law concepts is more properly a subject for the exercise of legislative power or at least for the discretion of the courts of the District. The administration of criminal law in matters not affected by constitutional limitations or a general federal law is a matter peculiarly of local concern. Compare McNabb v. United States, 318 U. S. 332, with Ashcraft v. Tennessee, 322 U. S. 143, 156. This Court has in a less important matter undertaken to adjust by decision an outmoded rule of the common law to modern conditions. But when that step was taken, it was declared that “experience has clearly demonstrated the fallacy or unwisdom of the old rule.” Funk v. United States, 290 U. S. 371, 381. See Weiler v. United States, 323 U. S. 606, 609. Matters relating to law enforcement in the District are entrusted to the courts of the District. Our policy is not to interfere with the local rules of law which they fashion, save in exceptional situations where egregious error has been committed. Where the choice of the Court of Appeals of the District of Columbia in local matters between conflicting legal conclusions seems nicely balanced, we do not interfere. District of Columbia v. Pace, 320 U. S. 698, 702; Busby v. Electric Utilities Union, 323 U. S. 72, 74-5. The policy of deferring to the District’s courts on local law matters is reinforced here by the fact that the local law now challenged is long established and deeply rooted in the District. Affirmed. Mr. Justice Jackson took no part in the consideration or decision of this case. The Code of Law for the District of Columbia (1940 Ed.) provides as follows: Title 22, § 2401, “Whoever, being of sound memory and discretion, kills another purposely, either of deliberate and premeditated" }, { "docid": "918517", "title": "", "text": "sound memory and discretion, kills another purposely, either of deliberate and premeditated malice or by means of poison, or in perpetrating or attempting to perpetrate any offense punishable by imprisonment in the penitentiary, or without purpose so to do kills another in perpetrating or in attempting to perpetrate any arson, as defined in section 22-401 or 22-402, rape, mayhem, robbery, or kidnapping, or in perpetrating or attempting to perpetrate any housebreaking while armed with or using a dangerous weapon, is guilty of murder in the first degree. 22-2402. Whoever maliciously places an obstruction upon a railroad or street railroad, or displaces or injures anything appertaining thereto, or does any other act with intent to endanger the passage of any locomotive or car, and thereby occasions the death of another, is guilty of murder in the first degree. 22-2403. Whoever with malice aforethought, except as provided in sections 22-2401, 22-2402, kills another, is guilty of murder in the second degree. . 120 U.S.App.D.C. at 132, 344 F.2d at 517. . 120 U.S.App.D.C. at 131, 344 F.2d at 516. . See Instruction #87, Criminal Jury Instructions prepared by the Junior Bar Section of the District of Columbia Bar Association (1906) : “You may not find the defendant guilty of both murder in the first degree and murder in the second degree. If you find the defendant guilty of murder in the first degree, you must find him not guilty of murder in the second degree. If you find the defendant guilty of murder in the second degree, you must find him not guilty of murder in the first degree.” . See, e.g., Milanovich v. United States, 365 U.S. 551, 81 S.Ct. 728, 5 L.Ed.2d 773 (1961) ; Dozier v. United States, 127 U.S.App.D.C. 266, 382 F.2d 482 (1967); Thompson v. United States, 97 U.S.App.D.C. 116, 228 F.2d 463 (1955). Compare, where verdicts on two counts inconsistent as a matter of fact, Dunn v. United States, 284 U.S. 390, 52 S.Ct. 189, 76 L.Ed. 356 (1932) (Holmes, J.); Bickel, Judge and Jury — Inconsistent Verdicts in the Federal Courts, 63 Harv.L.Rev. 649 (1950)." }, { "docid": "4384982", "title": "", "text": "District of Columbia Code (Ohio Penal Code, title I, c. (3), sec. 12400). In most of the other States the killing of a human being when perpetrated in the commission of another felony, constitutes murder in the first degree and purpose is not an element of the crime under such circumstances. I, therefore, suggest that the statute should be clarified so as to render the word “purposely” solely a limitation on deliberate and premeditated homicides, instead of being applicable as well to the other type of murder heretofore referred to. In order to accomplish this result, I suggest that the statute be amended to read as follows: “Whoever, being of sound memory and discretion, kills another purposely and either of deliberate and premeditated malice or by means of poison, or kills another in perpetrating or in attempting to perpetrate any offense punishable by imprisonment in the penitentiary, is guilty of murder in the first degree.” A bill to carry into effect the foregoing recommendation has been drafted in this Department and is enclosed herewith. I recommend its enactment. A similar bill was passed by the Senate in the last Congress. Sincerely yours, Homer Cummings, Attorney General. [CHART OP AREA] . D.C.Code, § 22-2401 (1951) in pertinent part reads: “Whoever * * * without purpose so to do kills another in perpetrating or in attempting to perpetrate * * * robbery * * * is guilty of murder in the first degree.” . The second count had charged that the accused “purposely and with deliberate and premeditated malice” had murdered Donald ,T. Brereton. As the trial commenced, the prosecution moved for leave to dismiss the second count When appellant’s trial counsel stated “We have no objection, your Honor,” the motion was granted. Later, that same day, appellant’s trial counsel asked that the premeditated first degree murder charge be reinstated that the jury might have the opportunity to bring in a finding of homicide in a less degree. “We would like the jury to have that choice,” counsel stated. Of course, the jury would have had that “choice” only if the evidence" } ]

[ { "docid": "14157762", "title": "", "text": "complained would not be enough to support a hostile environment claim under Title VII. Nonetheless, the First Amendment protects statements by public employees on matters of public concern; its protection is not limited to complaints about conduct that is ultimately found to violate Title VII. Moreover, we note that Campbell did not bring the sexual harassment issues to Chief Galloway’s attention in order to resolve her own personal problem. She brought the issue up to Sergeant Burgess in the course of an apparently angry discussion about him writing her up for missing an on-call day; it was Burgess who took the matter to Chief Galloway. Although Campbell’s memo to Galloway states that she had been discriminated against, the memo also speaks in much broader terms of “sexual harassment within your police department.” J.A. 376. It thus appears that Campbell was seeking to challenge the practice within the department as much as she was seeking a resolution of her own complaint. Accordingly, after considering the content, form, and context of Campbell’s complaints in the light most favorable to her, we conclude that her complaints raise issues that would be of genuine concern to the public. See Edwards, 178 F.3d at 247. Campbell’s complaints must therefore be viewed as touching on matters of public concern under Connick. (2) We turn now to the alternative argument made by the defendants — that even if Campbell’s complaints were matters of public concern, they are entitled to qualified immunity because the existing case law did not clearly establish that the kind of complaints that Campbell made were matters of public concern. “Qualified immunity shields government officials performing discretionary functions from personal-capacity liability for civil damages under § 1983, insofar as their conduct does not violate clearly established statutory or constitutional rights of which a reasonable person would have known.” Ridpath v. Board of Governors Marshall Univ., 447 F.3d 292, 306 (4th Cir.2006) (internal quotation marks omitted). “A right is clearly established if the contours of the right are sufficiently clear so that a reasonable officer would have understood, under the circumstances at hand, that his" } ]

[ { "docid": "7382633", "title": "", "text": "Motor Coach Employees of America, et al. v. Lockridge, 403 U.S. 274 [91 S.Ct. 1909, 29 L.Ed.2d 473] (1971), the Supreme Court, in discussing Section 301(a) jurisdiction limited the applicability of Smith v. Evening News Association to contracts between unions and employers in stating: ... the principal of Smith v. Evening News is applicable only to those disputes that are covered by the terms of the collective bargaining agreement itself. 403 U.S. at 300-301 [91 S.Ct. at 1925]. 542 F.2d at 967. See Journeymen, 452 U.S. at 633-36, 101 S.Ct. at 2557 (Stevens, J., dissenting) (Section 301 was intended to create a body of substantive federal law to govern enforcement of collective bargaining agreements; there was no such intention to create substantive federal law to govern disputes over union constitution). The Trail Court’s position is a sensible one which recognizes the legislative intent behind LMRA section 301 and the logic of the Supreme Court’s ruling in Lockridge, supra. Therefore, this Court declines to adopt the position of those courts which allow a section 301 action by an individual union member based on the union’s alleged breach of the union constitution. As the above-quoted language points out, Congress enacted the Labor Management Reporting and Disclosure Act (LMRDA), 29 U.S.C. § 411 et seq., 12 years after the enactment of the LMRA. The LMRDA, discussed in Part II of this Memorandum, was specifically intended to protect union members in their relationship to their union. See N.L.R.B. v. Allis-Chalmers Mfg. Co., 388 U.S. 175, 181, 87 S.Ct. 2001, 2007, 18 L.Ed.2d 1123 (1967) (Bill of Rights of labor organization members was included in LMRDA to assure democratic conduct of union affairs). However, neither the LMRDA nor the LMRA was intended to provide a body of federal law to govern a claim of wrongful discharge from union employment, which is essentially what the plaintiff in this case is asserting. II. LABOR MANAGEMENT REPORTING AND DISCLOSURE ACT CLAIM Plaintiff also claims that in their treatment of her, defendants violated sections 101, 102, and 609 of the LMRDA, 29 U.S.C. §§ 411, 412, 529. Section 609" }, { "docid": "21595661", "title": "", "text": "(noting cases construing Title VII are applicable \"in interpreting and applying the provision of the DCHRA”); Fred A. Smith Management Co. v. Cerpe, 957 A.2d 907, 913-14 (D.C.2008) (same); Lively v. Flexible Packaging Ass'n, 830 A.2d 874, 887-89 (D.C.2003) (Title VII analysis applicable to DCHRA hostile work environment claims). . Even after the plaintiff raised the sexual harassment charge, which triggered an internal investigation, she apparently requested that the investigation stop. September 4, 2009, Email Exchange. . Although the parties dispute whether CoWorker 1 is a supervisor under Title VII, compare Def.’s Mem. at 12-13, with. Pl.’s Suppl. Qpp’n at 2, this issue need not be resolved since, regardless of Co-Worker l’s position vis a vis the plaintiff, no hostile work environment was created by either his conduct or his criticism, along with others, of the plaintiffs work performance. . To the extent the plaintiff alleges that she was constructively discharged due to the hostile work environment, see Compl. ¶ 119, 129, this claim fails. First, the plaintiff was not dismissed as a result of her poor job performance at her Road job assignment, but merely voluntarily transferred to the Yard. Second, even if her voluntary transfer were construed to be an involuntary demotion amounting to a constructive discharge, her claim'would still fail. The standard for constructive discharge is even more onerous than that for a standard hostile work environment claim. See Pa. State Police v. Suders, 542 U.S. 129, 134, 124 S.Ct. 2342, 159 L.Ed.2d 204 (2004) (“[T]o establish 'constructive discharge,’ the,plaintiff must make a further showing: She must show that the abusive working environment became so intolerable that her resignation qualified as a fitting response.”). Since the plaintiff is unable to show that the harassing behavior she alleges was sufficiently severe or pervasive to support a hostile work environment claim, her constructive discharge claim fails for the same reason. . Amtrak disputes whether the plaintiff’s letter to the President of. Amtrak is protected activity under Title VII, see Def.’s Mem. at 21-22, but the Court need not resolve this issue because, even- if it is, the plaintiff has" }, { "docid": "5709075", "title": "", "text": "imputing the conduct that created the hostile environment to the employer.” Id. a. Severity or Pervasiveness of Harassment Under the first element, plaintiff must establish that the harassing conduct was “severe or pervasive” — not severe and pervasive. Pa. State Police v. Suders, 542 U.S. 129, 146, 124 S.Ct. 2342, 159 L.Ed.2d 204 (2004) (emphasis added) (discussing Title VII’s deterrent purpose in encouraging employees to report harassing conduct before it becomes severe or pervasive). The standard is disjunctive. Id. “[T]he misconduct shown must be severe or pervasive enough to create an objectively hostile or abusive work environment, and the victim must also subjectively perceive that environment to be abusive.” Alfano v. Costello, 294 F.3d 365, 374 (2d Cir.2002). See also Harris, 510 U.S. at 21, 114 S.Ct. 367 (holding that, as to the first element of a hostile work environment claim, sexually discriminatory verbal intimidation, ridicule, and insults may be sufficiently severe or pervasive to alter the conditions of a victim’s employment in violation of Title VII). “The objective hostility of a work environment depends on the totality of the circumstances,” viewed from the perspective “of a reasonable person in the plaintiffs position, considering all the circumstances [including] the social context in which particular behavior occurs and is experienced by its target.” Petrosino v. Bell Atl., 385 F.3d 210, 221 (2d Cir.2004) (internal quotation- marks and citation omitted) (finding that “a reasonable jury could conclude that the persistent sexually offensive remarks ... and the graffiti at outdoor work sites were particularly insulting to women because these actions cast women in a demeaning role”). “[T]he kinds of workplace conduct that may be actionable under Title VII ... include unwelcome sexual advances, requests for sexual favors, and other verbal or physical conduct of a sexual nature.” Mentor, 477 U.S. at 65, 106 S.Ct. 2399 (internal quotation marks and citation omitted). “When entering a workplace, reasonable people expect to have their autonomy circumscribed in a number of ways; but giving up control over who can touch their bodies is usually not one of them.” Redd, 678 F.3d at 179. A single incident of" }, { "docid": "18189398", "title": "", "text": "542 U.S. 129, 124 S.Ct. 2342, 2347, 159 L.Ed.2d 204 (2004). Second, she must demonstrate that “the abusive working environment became so intolerable that her resignation qualified as a fitting response.” Id.; see also id. at 2351 (“The inquiry is objective: Did working conditions become so intolerable' that a reasonable person in the employee’s position would have felt compelled to resign?”). The district court found both prongs were met, and I agree. Wright was constructively discharged from her position due to the extreme, harassment-based humiliation she was forced to endure. Sims directed an office in which sexually explicit and offensive conduct was the order of the day. Wright was the sole female employee of that office, and thus regularly found herself as the target of Sims’ lewd behavior and comments. Sims apparently found his own behavior entirely acceptable; prior to Wright’s first formal complaint on April 1, 2002, Sims was of the belief that sexual harassment included physical touching and unwanted advances, but not verbal abuse of a sexual nature. Sims had no formal training on sexual harassment, yet the County policy (which Sims had apparently ignored) clearly prohibited “[ajction, words, jokes or comments based on an individual’s sex,” as well as “[vjerbal abuse of a sexual nature.” (J.A. at 151.) The context of Wright’s workplace is relevant not only to her hostile work environment claim, but also to her claim of constructive discharge. The majority-finds that the environment was not so pervasively hostile that Wright was forced to quit, because the harassment “all but stopped” once she returned from work following investigation of her complaint. Ante at 9. While Sims’ behavior was slightly better for a time, this does not tell the entire story. Wright returned to work in late July of 2002 after the County concluded that there was no wrongdoing on the part of Sims. This forced Wright to return to an environment that this court has found to be hostile, with no prospect of improvement in Sims’ behavior. In the factually similar case of Henderson v. Simmons Foods. Inc., 217 F.3d 612 (8th Cir.2000), our court" }, { "docid": "20128075", "title": "", "text": "Branch location. See Doc. 99, Tab 19, Parish Depo. at 107:10-109:1. More specifically, the write up pertains to an incident where Cody damaged the gate at the Jefferson Branch location when he hit it and when confronted by the location manager, Cody was allegedly insubordinate. Regardless of the reason for the write up, this still does not show how it was an adverse employment decision. As such, Cody fails to establish a prima facie case as to this write up. Moreover, even if he had, Cody has done nothing to rebut the fact Defendants honestly believed Cody had been insubordinate. For the remaining “dump” write up, Cody still fails to show how it constitutes an adverse employment action since it apparently does not affect his pay, benefits, or lost promotion. Based on the above, Cody’s claims for disparate discipline fail and summary judgment is granted. B. Teamsters Local 991 Cody makes no references to claims against the Union in his response to summary judgment and therefore summary judgment shall be granted. See Doc. 120 at p. 49-52 and p. 87-90; Doc. 122 at p. 3-4. XII. Hostile Work Environment by Melton, Brooks, and Amos Melton, Brooks, and Amos also assert a claim for hostile work environment. Harvey and Cody, to the extent they may have asserted claims in the Amended Complaint, abandoned those claims when they failed to address them in the response to the motions for summary judgment. Like discrimination claims, hostile work environment claims are analyzed under the same standards of proof and employ the same analytical framework as Title VII cases. Bryant v. Jones, 575 F.3d 1281, 1296 n. 20 (11th Cir.2009). Thus, to establish a hostile work environment claim under § 1981, “an employee (or former employee must show harassing behavior sufficiently severe or pervasive to alter the conditions his or her employment.”) Id. (quoting Pa. State Police v. Suders, 542 U.S. 129, 133, 124 S.Ct. 2342, 2347, 159 L.Ed.2d 204 (2004)) (internal quotations omitted). To show this, the plaintiff must meet the following elements: (1) that he belongs to a protected group; (2) that he" }, { "docid": "21595662", "title": "", "text": "her poor job performance at her Road job assignment, but merely voluntarily transferred to the Yard. Second, even if her voluntary transfer were construed to be an involuntary demotion amounting to a constructive discharge, her claim'would still fail. The standard for constructive discharge is even more onerous than that for a standard hostile work environment claim. See Pa. State Police v. Suders, 542 U.S. 129, 134, 124 S.Ct. 2342, 159 L.Ed.2d 204 (2004) (“[T]o establish 'constructive discharge,’ the,plaintiff must make a further showing: She must show that the abusive working environment became so intolerable that her resignation qualified as a fitting response.”). Since the plaintiff is unable to show that the harassing behavior she alleges was sufficiently severe or pervasive to support a hostile work environment claim, her constructive discharge claim fails for the same reason. . Amtrak disputes whether the plaintiff’s letter to the President of. Amtrak is protected activity under Title VII, see Def.’s Mem. at 21-22, but the Court need not resolve this issue because, even- if it is, the plaintiff has failed to submit sufficient evidence to rebut the legitimate, non-retaliatory reasons for the plaintiff’s dismissal. . Following the Notice of Formal Investigation, the plaintiff attended a hearing about the charge with her union representative, during which time she was allowed to introduce her own evidence and cross-examine witnesses. See Amtrak February 7, 2011, Letter to PI. at 2. She was found to have violated the two Standards of Excellence and terminated. Id. After years of administrative appeals, those findings have not been- disturbed. See generally id.; November 16, 2011, Pub.L. Bd. Decision." }, { "docid": "5709074", "title": "", "text": "J. 13, ECF No. 58.) See also, e.g., Torres v. Pisano, 116 F.3d 625, 630 (2d Cir.1997) (“It is now accepted that [the] language [of Title VII] evinces a congressional intent to strike at the entire spectrum of disparate treatment of men and women in employment and to forbid sexual harassment in the workplace.”) (internal quotation marks and citation omitted); Carrero v. N.Y.C. Housing Auth., 890 F.2d 569, 578 (2d Cir.1989) (“A female employee need not subject herself to an extended period of demeaning and degrading provocation before being entitled to seek the remedies provided under Title VII.”). To state an actionable hostile work environment claim, plaintiff must establish two elements. First, that “the harassment was sufficiently severe or pervasive to alter the conditions of the victim’s employment and create an abusive working environment.” Perry v. Ethan Allen, Inc., 115 F.3d 143, 149 (2d Cir.1997) (internal quotation marks and citations omitted); Atkins v. Pitney Bowes Mgmt. Servs., No. 12-CV-5575, 2015 WL 144158, at *8 (S.D.N.Y. Jan. 12, 2015) (same). Second, “a specific basis exists for imputing the conduct that created the hostile environment to the employer.” Id. a. Severity or Pervasiveness of Harassment Under the first element, plaintiff must establish that the harassing conduct was “severe or pervasive” — not severe and pervasive. Pa. State Police v. Suders, 542 U.S. 129, 146, 124 S.Ct. 2342, 159 L.Ed.2d 204 (2004) (emphasis added) (discussing Title VII’s deterrent purpose in encouraging employees to report harassing conduct before it becomes severe or pervasive). The standard is disjunctive. Id. “[T]he misconduct shown must be severe or pervasive enough to create an objectively hostile or abusive work environment, and the victim must also subjectively perceive that environment to be abusive.” Alfano v. Costello, 294 F.3d 365, 374 (2d Cir.2002). See also Harris, 510 U.S. at 21, 114 S.Ct. 367 (holding that, as to the first element of a hostile work environment claim, sexually discriminatory verbal intimidation, ridicule, and insults may be sufficiently severe or pervasive to alter the conditions of a victim’s employment in violation of Title VII). “The objective hostility of a work environment depends" }, { "docid": "20597501", "title": "", "text": "because Solecki did not fraudulently claim pay for work he never performed. Because of this distinction, the treatment of Solecki could not support an inference that Jones’s suspension without pay and termination were motivated by discrimination rather than by SEPTA’s good-faith conclusion that Jones submitted false timesheets. 2 Jones also argues that she was the victim of a hostile work environment. In Meritor Savings Bank, FSB v. Vinson, the Supreme Court held “that a plaintiff may establish a violation of Title VII by proving that discrimination based on sex has created a hostile or abusive work environment.” 477 U.S. 57, 66, 106 S.Ct. 2399, 91 L.Ed.2d 49 (1986). The Court went on to hold that workplace sexual harassment can be actionable under such a theory, so long as it is “sufficiently severe or pervasive.” Id. at 67, 106 S.Ct. 2399. In a pair of later cases, the Court elaborated on when an employer can be held vicariously liable under Title VII for harassment of an employee by her supervisor. Faragher v. City of Boca Raton, 524 U.S. 775, 118 S.Ct. 2275, 141 L.Ed.2d 662 (1998); Burlington Indus., Inc. v. Ellerth, 524 U.S. 742, 118 S.Ct. 2257, 141 L.Ed.2d 633 (1998). Those decisions distinguished between “(1) harassment that ‘culminates in a tangible employment action,’ for which employers are strictly liable, and (2) harassment that takes place in the absence of a tangible employment action, to which employers may assert an affirmative defense.” Pa. State Police v. Suders, 542 U.S. 129, 143, 124 S.Ct. 2342, 159 L.Ed.2d 204 (2004) (citations omitted). This defense, which has come to be known as the Faragher — Ellerth defense, applies when the employer “exercised reasonable care to avoid harassment and to eliminate it when it might occur” and the complaining employee “failed to act with like reasonable care to take advantage of the employer’s safeguards and otherwise to prevent harm that could have been avoided.” Faragher, 524 U.S. at 805, 118 S.Ct. 2275. Jones claims she has cited sufficient evidence of severe or pervasive sexual harassment by Outlaw. The District Court said this was irrelevant even" }, { "docid": "20385068", "title": "", "text": "was afraid to return. These incidents must be viewed in context and “cannot simply be discarded ... but must be weighed on the side of reasonable inferences.” McCowan, 273 F.3d at 925 n. 10. In sum, a reasonable jury could conclude that “[Ms. Hernandez’s] workplace [was] permeated with discriminatory intimidation, ridicule, and insult, that [was] sufficiently severe or pervasive to alter the conditions of [her] employment and create an abusive working environment.” Herr era, 474 F.3d at 680 (internal quotation marks omitted). B. Constructive Discharge Claim Ms. Hernandez claims she was constructively discharged as a result of the hostile work environment combined with working conditions so unreasonable she could not return to work in the food services department when her FMLA leave expired. “[A] hostile-environment constructive discharge claim entails something more [than conduct that amounts to actionable harassment]: A plaintiff who advances such a compound claim must show working conditions so intolerable that a reasonable person would have felt compelled to resign.” Pa. State Police v. Sliders, 542 U.S. 129, 147, 124 S.Ct. 2342, 159 L.Ed.2d 204 (2004). Further, “an employer is strictly liable for supervisor harassment that culminates in a tangible employment action,” and a constructive discharge that is precipitated by an official act qualifies as a tangible employment action. Id. at 137, 148-49, 124 S.Ct. 2342 (internal quotation marks omitted). Ms. Hernandez bases her constructive discharge claim on Valley View’s (1) denying her July 2007 request to be transferred to any department not under the supervision of Mr. Lillis and Mr. Stillahn; (2) deciding to fire her the same day she reported her discrimination allegations by documenting as-yet undocumented performance issues; (3) placing her on unpaid leave when she did not return to work the day after her suspension and after failing to tell her it was only a half-day suspension; (4) preventing her from working until a meeting ten days after her suspension; and (5) presenting her, at the end of her FMLA leave, with new, after-the-fact performance criticisms and again denying her request not to work under the supervision of her harassing supervisors. The district court" }, { "docid": "22179328", "title": "", "text": "raise the issue before the district court; therefore, the issue is not properly before us. See Johnson v. United States, 340 F.3d 1219, 1228 n. 8 (11th Cir.2003) (“Arguments not raised in the district court are waived.”); Hurley v. Moore, 233 F.3d 1295, 1297-98 (11th Cir.2000) (same). Resolving the second and third issues, on the other hand, requires extended discussion. Our task is to determine whether the defendants’ actions violated Kelley, Bryant, and Drake’s federal rights, and, if so, whether those rights were clearly established. See Wood v. Kesler, 323 F.3d 872, 877 (11th Cir.2003). We understand the defendants to argue that they are entitled to qualified immunity because, as a matter of law, Kelley, Bryant, and Drake failed to present sufficient evidence to establish that their federal rights to be free from racial discrimination in their employment were violated. Specifically, the defendants aver that Kelley, Bryant, and Drake failed to make out a hostile work environment claim and that Kelley failed to establish her constructive discharge claim. We turn first to the hostile work environment claims. 2. To establish a hostile work environment claim under the Equal Protection Clause and 42 U.S.C. § 1981, an employee (or former employee) must show harassing behavior “sufficiently severe or pervasive to alter the conditions of [his or her] employment.” Pa. State Police v. Suders, 542 U.S. 129, 133, 124 S.Ct. 2342, 2347, 159 L.Ed.2d 204 (2004). This requires that the employee prove the following: (1) that he [or she] belongs to a protected group; (2) that he [or she] has been subject to unwelcome harassment; (3) that the harassment [was] based on a protected characteristic of the employee, such as national origin; (4) that the harassment was sufficiently severe or pervasive to alter the terms and conditions of employment and create a discriminatorily abusive working environment; and (5) that the employer is responsible for such environment under either a theory of vicarious or of direct liability. Miller v. Kenworth of Dothan, Inc., 277 F.3d 1269, 1275 (11th Cir.2002). The defendants concede the first element and focus on the next three, arguing that" }, { "docid": "18189397", "title": "", "text": "not enough); Henthorn, 359 F.3d at 1028 (same); Tuggle, 348 F.3d at 714, 721-22 (same); Alagna v. Smithville R-II Sch. Dist., 324 F.3d, 975, 977-78, 980 (8th Cir.2003) (same); Scusa v. Nestle U.S.A. Co., Inc., 181 F.3d 958, 961, 967 (8th Cir.1999) (same); with Bales v. Wal-Mart Stores, Inc., 143 F.3d 1103, 1106-09 (8th Cir.1998) (frequent, relatively innocuous conduct sufficient); Williams v. City of Kansas City, 223 F.3d 749, 753 (8th Cir.2000) (same); Smith v. St. Louis Univ., 109 F.3d 1261, 1264-65 (8th Cir.1997) (same). HEANEY, Circuit Judge, dissenting. I would affirm the district court on both the hostile work environment and constructive discharge counts. Thus, I respectfully dissent from the majority’s opinion insofar as it holds that Rolette County Sheriff Tony Sims is entitled to qualified immunity on Brigitte Wright’s claim of constructive discharge. A plaintiff claiming constructive discharge based on a hostile work environment must make two showings: first, she must show the presence of harassing behavior so pervasive or severe that it altered the plaintiffs working conditions. Pa. State Police v. Suders, 542 U.S. 129, 124 S.Ct. 2342, 2347, 159 L.Ed.2d 204 (2004). Second, she must demonstrate that “the abusive working environment became so intolerable that her resignation qualified as a fitting response.” Id.; see also id. at 2351 (“The inquiry is objective: Did working conditions become so intolerable' that a reasonable person in the employee’s position would have felt compelled to resign?”). The district court found both prongs were met, and I agree. Wright was constructively discharged from her position due to the extreme, harassment-based humiliation she was forced to endure. Sims directed an office in which sexually explicit and offensive conduct was the order of the day. Wright was the sole female employee of that office, and thus regularly found herself as the target of Sims’ lewd behavior and comments. Sims apparently found his own behavior entirely acceptable; prior to Wright’s first formal complaint on April 1, 2002, Sims was of the belief that sexual harassment included physical touching and unwanted advances, but not verbal abuse of a sexual nature. Sims had no formal training" }, { "docid": "22475560", "title": "", "text": "9, 2009) (“A hostile work environment claim can succeed only if plaintiff demonstrates that the workplace was so severely permeated with discriminatory intimidation, ridicule, and insult that the terms and conditions of his employment were thereby altered”) (citing Leibovitz v. N.Y. City Transit Auth., 252 F.3d 179, 188 (2d Cir.2001)). Indeed, although this Circuit has not ruled on the question, in the analogous context of hostile work environment claims based on allegations of sexual harassment, “[federal] courts (including district courts in this circuit) appear to have uniformly rejected the notion that a failure adequately to remediate sexual harassment itself constitutes an act that may contribute to a hostile work environment claim.” Chan v. N.Y. City Transit Auth., No. 03 Civ. 6239, 2004 WL 1812818, at *5, 2004 U.S. Dist. LEXIS 16370, at *15 (E.D.N.Y. July 19, 2004). Fincher does not identify the facts to which her phrase, “the totality of the circumstances,” refers. The evidence that she presented to the district court was to the effect that on at least one occasion, two of her co-workers were invited, without her, for unspecified training, and that on at least one occasion, one of her co-workers was assigned to work with a supervisor who was better qualified than Fincher’s supervisor. We conclude that these sporadic events, none of which was personally abusive, as a matter of law do not amount to a series of abusive and pervasive incidents of discrimination, nor do they include a single extraordinary one. The hostile work environment claim fails. The district court also correctly granted summary judgment dismissing Fincher’s constructive discharge claim. Fincher’s complaint, which does not raise constructive discharge as a separate allegation, makes clear that the acts which she alleges gave rise to a hostile work environment were the same as those upon which her constructive discharge claim was based. Where an alleged constructive discharge stems from an alleged hostile work environment, a plaintiff “must show working conditions so intolerable that a reasonable person would have felt compelled to resign.” Pa. State Police v. Suders, 542 U.S. 129, 147, 124 S.Ct. 2342, 159 L.Ed.2d 204" }, { "docid": "4507730", "title": "", "text": "662 (1998). In order for “an atmosphere of sexual harassment or hostility to be actionable” under Title VII, “the offending behavior ‘must be sufficiently severe or pervasive to alter the conditions of the victim’s employment and create an abusive working environment.’ ” Pennsylvania State Police v. Suders, 542 U.S. 129, 146-147, 124 S.Ct. 2342, 159 L.Ed.2d 204 (2004), quoting Mentor Savings Bank, 477 U.S. at 67, 106 S.Ct. 2399. This standard incorporates both objective and subjective elements. In Harris v. Forklift Systems, Inc., 510 U.S. 17, 21-22, 114 S.Ct. 367, 126 L.Ed.2d 295 (1993), the Supreme Court explained: Conduct that is not severe or pervasive enough to create an objectively hostile or abusive work environment — an environment that a reasonable person would find hostile or abusive — is beyond Title VIFs purview. Likewise, if the victim does not subjectively perceive the environment to be abusive, the conduct has not actually altered the conditions of the victim’s employment, and there is no Title VII violation. Harris, 510 U.S. at 21-22, 114 S.Ct. 367. The relevant inquiry cannot be reduced to “a mathematically precise test.” Id. at 22, 114 S.Ct. 367. In determining whether discriminatory harassment constitutes a violation of Title VII, a trier of fact must consider whether the harassment is frequent or severe, whether it is “physically threatening or humiliating,” and whether it “unreasonably interferes with an employee’s work performance.” Id. at 23, 114 S.Ct. 367. Mitchell avers that the actions of Greener, Urbani and Potter in relation to her were “pervasive and regular,” “objectively unreasonable,” and “personally offensive” to her. ECF No. 24 at ¶ 42. She alleges that the PSP is liable under Title VII for subjecting her to a “hostile work environment.” Id. In her brief, however, Mitchell does not distinguish this allegation from the allegations pertaining to the specific personnel actions alleged to have been discriminatory. ECF No. 41 at 19-21. Those actions, if discriminatory, constituted distinct “unlawful employment practices.” Morgan, 536 U.S. at 114, 122 S.Ct. 2061. Mitchell cannot establish the existence of an actionable “hostile work environment” by bootstrapping “discrete acts” of discrimination" }, { "docid": "22179329", "title": "", "text": "environment claims. 2. To establish a hostile work environment claim under the Equal Protection Clause and 42 U.S.C. § 1981, an employee (or former employee) must show harassing behavior “sufficiently severe or pervasive to alter the conditions of [his or her] employment.” Pa. State Police v. Suders, 542 U.S. 129, 133, 124 S.Ct. 2342, 2347, 159 L.Ed.2d 204 (2004). This requires that the employee prove the following: (1) that he [or she] belongs to a protected group; (2) that he [or she] has been subject to unwelcome harassment; (3) that the harassment [was] based on a protected characteristic of the employee, such as national origin; (4) that the harassment was sufficiently severe or pervasive to alter the terms and conditions of employment and create a discriminatorily abusive working environment; and (5) that the employer is responsible for such environment under either a theory of vicarious or of direct liability. Miller v. Kenworth of Dothan, Inc., 277 F.3d 1269, 1275 (11th Cir.2002). The defendants concede the first element and focus on the next three, arguing that Kelley, Bryant, and Drake failed, as a matter of law, to show that the harassment they experienced, if any, “was sufficiently severe or pervasive to alter the terms and conditions of employment and create a discriminatorily abusive working environment.” Id. As we noted in Miller, this element contains both subjective and objective components; that is, “to be actionable, [the harassment] must result in both an environment that a reasonable person would find hostile or abusive and an environment that the victim subjectively pereeive[s] to be abusive.” Miller, 277 F.3d at 1276 (quoting Harris v. Forklift Sys., Inc., 510 U.S. 17, 21-22, 114 S.Ct. 367, 370-71, 126 L.Ed.2d 295 (1993)). Because defendants advance no argument concerning whether Kelley, Bryant, and Drake subjectively believed they were suffering abuse on account of their race, we focus on the objective component of the inquiry. While it is true that the objective element is not subject to mathematical precision, we can infer that an environment is “hostile” or “abusive” from the circumstantial facts viewed in their proper context. Harris, 510" }, { "docid": "20128076", "title": "", "text": "p. 49-52 and p. 87-90; Doc. 122 at p. 3-4. XII. Hostile Work Environment by Melton, Brooks, and Amos Melton, Brooks, and Amos also assert a claim for hostile work environment. Harvey and Cody, to the extent they may have asserted claims in the Amended Complaint, abandoned those claims when they failed to address them in the response to the motions for summary judgment. Like discrimination claims, hostile work environment claims are analyzed under the same standards of proof and employ the same analytical framework as Title VII cases. Bryant v. Jones, 575 F.3d 1281, 1296 n. 20 (11th Cir.2009). Thus, to establish a hostile work environment claim under § 1981, “an employee (or former employee must show harassing behavior sufficiently severe or pervasive to alter the conditions his or her employment.”) Id. (quoting Pa. State Police v. Suders, 542 U.S. 129, 133, 124 S.Ct. 2342, 2347, 159 L.Ed.2d 204 (2004)) (internal quotations omitted). To show this, the plaintiff must meet the following elements: (1) that he belongs to a protected group; (2) that he has been subject to unwelcome harassment; (3) that the harassment was based on a protected characteristic of the employee; (4) that the harassment was sufficiently severe or pervasive to alter the terms and conditions of employment and create a discriminatorily abusive working environment; and (5) that the employer is responsible for such environment under either a theory of vicarious or of direct liability. Id. (citing Miller v. Kenworth of Dothan, Inc., 277 F.3d 1269, 1275 (11th Cir.2002)). Generally speaking, element four is where most hostile work environment claims get caught up. When looking at the fourth element, courts use both an objective and subjective test. Miller, 277 F.3d at 1276 (citing Harris v. Forklift Sys., Inc., 510 U.S. 17, 21-22, 114 S.Ct. 367, 370-71, 126 L.Ed.2d 295 (1993)). Therefore, “to be actionable the harassment must result in both an environment that a reasonable person would find hostile or abusive and an environment that the victim subjectively perceives to be abusive.” Bryant, 575 F.3d at 1297 (quoting Miller, 277 F.3d at 1276); accord Harris v. Forklift" }, { "docid": "20007373", "title": "", "text": "claim by ruling against Steele on her constructive discharge claim. The district court, the government maintains, “rightly interpreted [Steele’s hostile work environment claim] to be coextensive with her constructive discharge claim.” Appellee’s Br. 13. But as the Supreme Court made clear in Suders, the standards for hostile work environment and constructive discharge claims are not coextensive. 542 U.S. at 133-34, 124 S.Ct. 2342 (2004). To establish hostile work environment claims under Title VII, the Court explained, plaintiffs “must show harassing behavior ‘sufficiently severe or pervasive to alter the conditions of [their] employment.’ ” Id. at 133, 124 S.Ct. 2342 (alteration in original) (quoting Meritor Savings Bank, FSB v. Vinson, 477 U.S. 57, 67, 106 S.Ct. 2399, 91 L.Ed.2d 49 (1986)). “Beyond that, ... to establish ‘constructive discharge,’ the plaintiff must make a further showing: She must show that the abusive working environment became so intolerable that her resignation qualified as a fitting response.” Id. at 134, 124 S.Ct. 2342. The district court’s rejection of Steele’s constructive discharge claim on the ground that she did not show working conditions “so intolerable, so aggravating, that any reasonable person would have felt compelled to quit,” Order at 15, simply does not address whether Steele successfully made the lesser showing that she experienced severe or pervasive harassment that altered the conditions of her employment. Accordingly, the district court’s holding as to the former does not suffice to warrant rejection of Steele’s hostile work environment claim. Finally, the government invites us to affirm the district court’s judgment on the alternative basis that Steele’s allegations fail as a matter of law to rise to the level of actionable harassment. As noted at the outset, we think the more prudent course is to allow the district court to decide this issue on remand. See Doe v. DiGenova, 779 F.2d 74, 89 (D.C.Cir.1985) (“ ‘It is the general rule, of course, that a federal appellate court does not consider an issue not passed upon below.’ ” (quoting Singleton v. Wulff, 428 U.S. 106, 120, 96 S.Ct. 2868, 49 L.Ed.2d 826 (1976))). In remanding the issue, we express no" }, { "docid": "20289374", "title": "", "text": "nonmoving party, however, must establish more than “the existence of a scintilla of evidence” in support of its position. Id. at 252, 106 S.Ct. 2505. In addition, the nonmoving party may not rely solely on allegations or conclusory statements. See Greene v. Dalton, 164 F.3d 671, 675 (D.C.Cir.1999). The nonmoving party must present specific facts that enable a reasonable jury to find in its favor. Id. C. Title VII 1. Substantive law Title VII forbids “discrimination] against any individual with respect to [her] ... terms [or] conditions ... of employment, because of ... sex.” 42 U.S.C. § 2000e-2(a)(1). Courts recognize two different varieties of Title VII sex-discrimination claims. First, courts recognize a Title VII claim for sex discrimination when some tangible employment action results from an employee’s refusal to submit to a supervisor’s sexual demands. Meritor Sav. Bank, FSB v. Vinson, 477 U.S. 57, 66, 106 S.Ct. 2399, 91 L.Ed.2d 49 (1986). In the D.C. Circuit, “[t]o qualify as a tangible employment action, an official act must have a significant effect on the plaintiffs employment status, work, or benefits.” Lutkewitte v. Gonzales, 436 F.3d 248, 262 (D.C.Cir.2006). Second, courts recognize under Title VII a claim for “discrimination based on sex” that is “created [by] a hostile or abusive work environment.” Meritor, 477 U.S. at 66, 106 S.Ct. 2399. A plaintiff must show harassing behavior that is sufficiently severe or pervasive to alter the conditions of her employment. Pa. State Police v. Suders, 542 U.S. 129, 133, 124 S.Ct. 2342, 159 L.Ed.2d 204 (2004); see also Nat’l R.R. Passenger Corp. v. Morgan, 536 U.S. 101, 116, 122 S.Ct. 2061, 153 L.Ed.2d 106 (2002). In determining whether an actionable hostile work environment claim exists, courts must look to all the circumstances, including the frequency of the discriminatory conduct, its severity, whether it is physically threatening or humiliating, and whether it unreasonably interferes with an employee’s work performance. Morgan, 536 U.S. at 116, 122 S.Ct. 2061. In sum, Title VII is violated either when a plaintiffs terms or conditions or employment are explicitly changed, or when they are changed constructively — e.g., when" }, { "docid": "10092591", "title": "", "text": "use (id. ¶ 77), and that Levenstein was aware of those procedures. (Id. ¶ 78.) In the end, however, the court never came to any final conclusion about the underlying motivations for the investigation. Instead, the court found that in the final analysis, it was not' the University that deprived Levenstein of any property right protected by the Constitution. It was he who chose to submit his resignation just before President Stukel was about to decide how to proceed. He elected to forgo numerous procedures before entities including the University’s Committee on Academic Freedom and Tenure and the Board of Trustees. Levenstein offers no reason for us to think that the Board, which had the ultimate responsibility to decide what to do, was biased, or that either the Committee or the Board would have refused to listen to his arguments about pretext and sham. The district court observed that Leven-stein was not bringing an independent claim based on his suspension. The fact that he was receiving full pay throughout the period of the University’s investigation may explain this decision. No matter. Upsetting and unpleasant though it surely would be to be the victim of false accusations of sexual misconduct from someone whose secret agenda was eliminating a critic, those accusations had not yet led the University to terminate Levenstein’s position. The only question remaining with respect to the due process part of the case, to which we now turn, is whether the district court was mistaken to reject the constructive discharge argument. C The Supreme Court recently had occasion to address the topic of constructive discharge in the context of a Title VII hostile-environment claim. See Pennsylvania State Police v. Suders, 542 U.S. 129, 124 S.Ct. 2342, 2347, 159 L.Ed.2d 204 (2004). The question whether the plaintiff had suffered a constructive discharge was important because it determined whether the employer was entitled to raise an affirmative defense to the charge. Suders held that in order to establish a constructive discharge, such a plaintiff had to prove both harassing behavior sufficiently severe or pervasive to alter the conditions of her employment," }, { "docid": "23668533", "title": "", "text": "hostile environment. See Hostetler, 218 F.3d at 808. A jury reasonably could conclude from Boumehdi’s testimony, which alleged that Vega made at least eighteen sexist or sexual comments in less than a year’s time and that similar comments were made “very often,” that Vega’s conduct was pervasive enough to create a hostile work environment. See, e.g., Cont’l Airlines, 2006 WL 14510, at *10-11 (denying summary judgment where defendant made fifteen to twenty gender-based comments in a year); cf. Patt v. Family Health Sys., Inc., 280 F.3d 749, 754 (7th Cir.2002) (holding that eight gender-based comments over several years, several of which were hearsay, were not sufficiently pervasive to support a hostile environment claim). B. Constructive Discharge Claim Next, Boumehdi claims that the district court erred by granting summary judgment in Plastag’s favor on her constructive discharge claim. To establish a claim for constructive discharge, a plaintiff must prove that unlawful discrimination made her working conditions so intolerable that a reasonable person would be forced to resign. Pa. State Police v. Suders, 542 U.S. 129, 147, 124 S.Ct. 2342, 159 L.Ed.2d 204 (2004). Generally, to support such a claim, a plaintiffs working conditions must be even more egregious than the high standard for hostile work environment claims, because, in the ordinary case, an employee is expected to remain employed while seeking redress. Tutman v. WBBM-TV, Inc., 209 F.3d 1044, 1050 (7th Cir.2000) (quotation and citation omitted). In Suders, the leading case on constructive discharge, the plaintiff was subjected to ongoing sexual harassment, was denied promotions, complained about alleged mistreatment to no avail, and endured retaliation from her coworkers. 542 U.S. at 135-36, 124 S.Ct. 2342. After the plaintiffs scheming co-workers arrested and detained her, she resigned. Id. The Supreme Court concluded that a reasonable jury could find that the plaintiff had been constructively discharged. Id. at 152, 124 S.Ct. 2342. This Court has likewise set a high bar for constructive discharge claims. See Taylor v. W.S. Life Ins. Co., 966 F.2d 1188, 1191 (7th Cir.1992) (recognizing that a jury could find constructive discharge where the plaintiffs’ boss constantly made racist comments," }, { "docid": "20289375", "title": "", "text": "status, work, or benefits.” Lutkewitte v. Gonzales, 436 F.3d 248, 262 (D.C.Cir.2006). Second, courts recognize under Title VII a claim for “discrimination based on sex” that is “created [by] a hostile or abusive work environment.” Meritor, 477 U.S. at 66, 106 S.Ct. 2399. A plaintiff must show harassing behavior that is sufficiently severe or pervasive to alter the conditions of her employment. Pa. State Police v. Suders, 542 U.S. 129, 133, 124 S.Ct. 2342, 159 L.Ed.2d 204 (2004); see also Nat’l R.R. Passenger Corp. v. Morgan, 536 U.S. 101, 116, 122 S.Ct. 2061, 153 L.Ed.2d 106 (2002). In determining whether an actionable hostile work environment claim exists, courts must look to all the circumstances, including the frequency of the discriminatory conduct, its severity, whether it is physically threatening or humiliating, and whether it unreasonably interferes with an employee’s work performance. Morgan, 536 U.S. at 116, 122 S.Ct. 2061. In sum, Title VII is violated either when a plaintiffs terms or conditions or employment are explicitly changed, or when they are changed constructively — e.g., when sexual harassment is so “severe or pervasive” that it effects an equivalent change to a plaintiffs employment environment. Burlington Indus., Inc. v. Ellerth, 524 U.S. 742, 752, 118 S.Ct. 2257, 141 L.Ed.2d 633 (1998); see also Lutkewitte, 436 F.3d at 260. Alongside a hostile work environment claim based upon sexual harassment, the D.C. Circuit also recognizes a “retaliation” variant actionable under Title VII. Hussain v. Nicholson, 435 F.3d 359, 366 (D.C.Cir.2006). To prevail on a retaliation theory, a plaintiff must show that her employer subjected her to discriminatory intimidation, ridicule, and insult of such se verity or pervasiveness as to alter the conditions of her employment and create an abusive working environment. Id. A plaintiff must also show a causal connection between the harassment and prior protected activity. Nichols v. Truscott, 424 F.Supp.2d 124, 141 (D.D.C.2006). 2. Exhaustion of administrative remedies A federal employee who believes that her agency discriminated or retaliated against her in violation of Title VII must seek administrative adjudication of her claim before filing suit in federal court. Payne v. Salazar," } ]

[ { "docid": "18582051", "title": "", "text": "Federal Judgeship Act of 1984, Pub.L. No. 98-353, 98 Stat. 333 (July 10, 1984), has been upheld by all courts to consider the issue. In re Tom Carter Enterprises, 12 BCD 536, 538, 44 B.R. 605 (C.D.Cal.1984) (constitutionality of order of reference with respect to core proceedings upheld); In re WWG Industries, Inc., 12 BCD 752, 753, 44 B.R. 287 (N.D.Ga.1984) (constitutionality of order of reference with respect to noncore proceedings upheld); In re DeLorean Motor Co. (Allard v. Benjamin, et al.), 49 B.R. 900 (Bankr.E.D. Mich., 1985). See also In re Lorren, 12 BCD 549, 550, 45 B.R. 584 (Bankr.N.D.Ala.1984); In re Lion Capital Group, 12 BCD 840, 845, 46 B.R. 850 (Bankr.S.D.N.Y.1985). Nevertheless, Shirah argues that the Court should abstain from exercising jurisdiction over the adversary proceeding pursuant to 28 U.S.C. § 1334(c)(1). Discretionary abstention is authorized by 28 U.S.C. § 1334(c)(1), which states as follows: Nothing in this section prevents a district court in the interest of justice, or in the interest of comity with State courts or respect for State law, from abstaining from hearing a particular proceeding arising under title 11 or arising or related to a case under title 11. 28 U.S.C. § 1334(c)(1). Although the issues raised by the complaint are governed by state law, that fact is not determinative that abstention is appropriate. In re Tom Carter Enterprises, 12 BCD at 539, 44 B.R. 605; In re DeLorean Motor Co., at 906-907; In re Butcher, 46 B.R. at 114. See also 28 U.S.C. § 157(b)(3) (“... A determination that a proceeding is not a core proceeding shall not be made solely on the basis that its resolution may be affected by State law”). The decision by Bankruptcy Judge Graves in In re DeLorean Motor Co., at 909-910, outlines the traditional rationales for federal abstention, none of which are applicable to the case sub judice. Judge Graves notes further that the abstention doctrine “has been viewed as ‘an extraordinary and narrow exception to the duty of the federal courts to adjudicate controversies which are properly before it.’ ” Id., at 910 (citing Colorado" } ]

[ { "docid": "9621576", "title": "", "text": "to Marathon,” see 1984 U.S.Cong. & Admn.News 576, 588, and that permitting bankruptcy judges to adjudicate state law claims would deprive litigants of the protections of state law “merely because they happened to do business with ... a party who later went bankrupt.” Id. at 594. With respect to the abstention issue, however, the defendants also suggest that if the Court decides that it does have jurisdiction to hear the matter, and that it will not abstain pursuant to 28 U.S.C. § 1334(c)(2), it should voluntarily abstain pursuant to 28 U.S.C. § 1334(c)(1). In Arnold Printworks, Inc. v. Apkin, 61 B.R. 520, 523 (Bankr.D.Mass.1986), the district court observed that “courts that have considered whether a debtor-in-possession’s contract action is a core or non-core matter have yielded a decisive split,” with some courts adopting “a very expansive definition of ‘core proceeding’ ” and others adopting “a narrow construction of what can fit within the ambit of core proceedings.” Compare In re Wood, 52 B.R. 513 (Bankr.N.D.Ala.1985); In re Alloy Metal Wire Works, Inc. 52 B.R. 39 (Bankr.E.D.Pa.1985); In re L.A. Clarke and Son, Inc. 51 B.R. 31 (Bankr.D.D.C.1985); In re Pied Piper Casuals, Inc., 50 B.R. 549 (Bankr.S.D.N.Y.1985); In re All American of Ashburn, Inc. 49 B.R. 926 (Bankr.N.D.Ga.1985); In re DeLorean Motor Co., 49 B.R. 900 (Bankr.E.D.Mich.1985); In re Harry C. Partridge, Jr. & Sons, Inc. 48 B.R. 1006 (Bankr.S.D.N.Y.1985); In re Baldwin-United Corp., 48 B.R. 49 (Bankr.S.D.Ohio 1985); In re Lion Capital Group, 46 B.R. 850 (Bankr.S.D.N.Y.1985); with In re Shaford Companies, Inc. 52 B.R. 832 (Bankr.D.N.H.1985); State Bank of Lombard v. Chart House, Inc., 46 B.R. 468 (Bankr.N.D.Ill.1985); In re Smith-Douglass, Inc., 43 B.R. 616 (Bankr.E.D.N.C.1984); In re Atlas Automation, Inc., 42 B.R. 246 (Bankr. E.D.Mich.1984); In re Dakota Grain Systems, Inc., 41 B.R. 749 (Bankr.D.N.D.1984). Consistent with its earlier opinion in Mohawk Industries, Inc. v. Robinson Industries, Inc., 46 B.R. 464 (D.Mass.1985), the district court in Apkin narrowly construed section 157. It concluded that a debtor-in-possesion’s suit to recover a post-petition account receivable was a non-core matter, relying on the Supreme Courts decision in Marathon. The court" }, { "docid": "12803743", "title": "", "text": "de novo those matters to which any party has timely and specifically objected. (2) Notwithstanding the provisions of paragraph (1) of this subsection, the district court, with the consent of all the parties to the proceeding, may refer a proceeding related to a case under Title 11 to a bankruptcy judge to hear and determine and to enter appropriate orders and judgments, subject to review under section 158 of this title. 28 U.S.C. § 157(c). As a result of section 157(c)(1), this Court may retain jurisdiction over the Debtor’s Complaint, unless foreclosed to do so by the abstention provisions of 28 U.S.C. § 1334(c). However, the Court observes that, given its determination that the proceeding is non-core and that section 157(b)(1), applies, it is technically without jurisdiction to dismiss the Debtor’s Complaint pursuant to Rule 12(b)(6) of the Federal Rules of Civil Procedure since such an order dismissing the Complaint would be a final order. Cf In re Lion Capital Group, 46 B.R. 850, 854 (Bankr.S.D.N.Y.1985). II Defendants argue that since this is a non-core proceeding involving a state law claim, abstention is mandatory under 28 U.S.C. § 1334(c)(2) or at least within the Court’s discretion under section 1334(c)(1). Clearly, the mandatory abstention provision of 28 U.S.C. § 1334(c)(2) is not applicable because the Debtor’s bankruptcy case was pending on the date of enactment of the BAA. Section 122(b) of the BAA states that section 1334(c)(2) does not apply to cases under Title 11 that are pending on the date of enactment or to proceedings arising in or related to such cases. Therefore, the Court’s decision with respect to abstention is discretionary. In re Pioneer Development Corp., 47 B.R. 624 (Bankr.E.D.Ill.1985); In re Dakota Grain Systems, Inc., 41 B.R. 749 (Bankr.D.N.D.1984). Section 1334(c)(1), which parallels the elective abstention provision of former section 1471(d) of the Bankruptcy Reform Act of 1978, permits the court to abstain in the interest of justice or in respect of state law. In considering whether to voluntarily abstain, the court in In re Atlas Automation, Inc., 42 B.R. 246 (Bankr.E.D.Mich.1984), indicated that (1) “the Court is" }, { "docid": "18778871", "title": "", "text": "have generally split into two camps, those which feel the 1984 Amendments resolved the constitutional deficiencies of the 1978 Code, and now permit bankruptcy courts to adjudicate state law contract actions by the estate against non-creditor defendants; see e.g., In re All American of Ashburn, Inc., 13 B.C.D. 93; 49 B.R. 926 (Bkrtcy.N.D.Ga.1985); In re Delorean Motor Company, 13 B.C.D. 60, 49 B.R. 900 (Bkrtcy.E.D.Mich.1985); In re Lion Capital Group, 46 B.R. 850 (Bkrtcy.S.D.N.Y.1985); In re Shell Materials, Inc., 13 B.C.D. 185 (Bkrtcy.M.D.Fla.1985); In re Franklin Computer Corporation, 13 B.C.D. 209, 50 B.R. 620 (Bkrtcy.E.D.Pa.1985); In re Harry C. Partridge, Jr. & Sons, Inc., 48 B.R. 1006 (S.D.N.Y.1985); In re Ram Construction Company, Inc., 49 B.R. 363 (W.D.Pa.1985); In re Bucyrus Grain Company, Inc., 56 B.R. 204 (Bkrtcy.D.Ks.1986); and those which feel the 1984 Amendments must be read in a manner consistent with Marathon, see, e.g. In re Pierce, 44 B.R. 601, 602 (D.Colo.1984); In re Alexander, 13 B.C.D. 47, 48, 49 B.R. 733 (Bkrtcy.D.N.D.1985); In re Illinois-California Express, Inc., 13 B.C.D. 153, 156, 50 B.R. 232 (Bkrtcy.D.Colo.1985); In re Atlas Automation, Inc., 42 B.R. 246 (Bkrtcy.E.D.Mich.1984); In re Bokum, 49 B.R. 854 (Bkrtcy.D.Colo.1985); In re Morse Electric Company, Inc., 47 B.R. 234 (Bkrtcy.N.D.In.1985); In re Nanodata Computer Corporation, 52 B.R. 334 (Bkrtcy.W.D.N.Y.1985); In re Zweygardt, 52 B.R. 229 (Bkrtcy.D.Colo.1985); In re Yagow, 53 B.R. 737 (Bkrtcy.D.N.D.1985); In re Crabtree, 55 B.R. 130 (Bkrtcy.E.D.Tenn.1985); In re Smith-Douglass, Inc., 43 B.R. 616 (Bkrtcy.E.D.N.C.1984). The Court has previously expressed its sympathy with the latter group of eases, but has stated that the precise terms of the statute required, in that limited proceeding, that it would follow the former and hold an action to collect an account receivable to be a core proceeding. The Court is not thus constrained in the cases at bar, and will undertake an exploration of the valildity of the two bases of jurisdiction invoked by Debtor. 1. Turnover Debtor has alleged this Court has jurisdiction to hear these actions, and therefore to enter default judgments, regarding collection of accounts receivable by virtue of Bankruptcy Code § 542, which" }, { "docid": "22194778", "title": "", "text": "action in state court. . Curiously, Congress placed two substantive matters which apply to both permissive and mandatory abstention in subparagraph (2) of subsection (c) which addresses mandatory abstention. But for the language “under this subsection\", arguably neither the nonreviewability of the decision to abstain or the applicability of the stay would apply to permissive abstention. In fact, a credible argument based on strict statutory construction can be made that since these provisions fall within the mandatory abstention portion of section 1334 rather than a separate “subsection,” they do not apply to permissive abstention. If this interpretation were adopted, the power of the bankruptcy court to permissibly abstain without recommendation to the district court could be asserted since nonre-viewability, the primary objection to such power, would be removed. . See Wood v. Wood, 825 F.2d at 94-99 for a clarifying discussion on the distinctions between a core and noncore proceedings. . Section 362 relief from stay and section 363 cash collateral motions are examples of matters where delay is potentially injurious to the interests of debtors and creditors. In the case of motions for relief from stay, delay is also prohibited under section 362(e). . See, e.g., Franklin Computer Corp. v. Harry Strauss & Sons (In re Franklin Computer Corp.), 50 B.R. 620 (Bankr.E.D.Penn.1985); Lesser v. A-Z Associates (In re Lion Capital Group), 46 B.R. 850 (Bankr.S.D.N.Y.1985); Harry C. Partridge, Jr. & Sons, Inc., v. M. & R. Construction Corp. (In re Harry C. Partridge, Jr. & Sons, Inc.), 48 B.R. 1006 (Bankr.S.D.N.Y.1985); Cotton v. Shirah (In re All American of Ashburn, Inc.), 49 B.R. 926 (Bankr.N.D.Ga.1985). . See, e.g., Appel v. Mainstar Oil Co. (In reB & L Oil Company), 46 B.R. 731 (D.Colo.1985); Atlas Automation, Inc. v. Jensen, Inc. (In re Atlas Automation Inc.), 42 B.R. 246 (Bankr.E.D.Mich.1984); Craig v. Air Brake Controls, Inc. (In re Crabtree), 55 B.R. 130 (Bankr.E.D.Tenn.1985); Century Brass Products, Inc. v. Millard Metals Service Center, Inc. (In re Century Brass Products, Inc.), 58 B.R. 838 (Bankr.Conn.1986); Satelco, Inc. v. North American Publishers Inc. (In re Satelco, Inc.), 58 B.R. 781 (Bankr.N.D.Tex.1986). . Although" }, { "docid": "18801606", "title": "", "text": "business to reorganize under Chapter 11, it appears that these two adversary proceedings wag the tail of the bankruptcy, instead of the other way around. Dated: January 12, 1990 . 28 U.S.C. § 157(b)(2) (2) Core proceedings include, but are not limited to— (B) allowance or disallowance of claims against the estate or exemptions from property of the estate, and estimation of claims or interests for the purposes of confirming a plan under chapter 11, 12, or 13 of title 11 but not the liquidation or estimation of contingent or unliq-uidated personal injury tort or wrongful death claims against the estate for purposes of distribution in a case under title 11; (C) counterclaims by the estate against persons filing claims against the estate; (E) orders to turn over property of the estate; (0) other proceedings affecting the liquidation of the assets of the estate or the adjustment of the debtor-creditor or the the equity security holder relationship, except personal injury tort or wrongful death claims. . See, e.g., In re Wood, 52 B.R. 513 (Bkrtcy.N.D.Ala.1985); Matter of Baldwin-United Corp., 52 B.R. 539 (Bkrtcy.S.D.Ohio 1985); In re Pied Piper Casuals, Inc., 50 B.R. 549 (Bkrtcy.S.D.N.Y.1985); In re All American of Ashburn, Inc., 49 B.R. 926 (Bkrtcy.N.D.Ga.1985); In re De Lorean Motor Co., 49 B.R. 900 (Bkrtcy.E.D.Mich.1985); In re Harry C. Partridge, Jr. & Sons, Inc., 48 B.R. 1006 (S.D.N.Y.1985); In re Lion Capital Group, 46 B.R. 850 (Bkrtcy.S.D.N.Y.1985); Macon Prestressed Concrete Co. v. Duke, 46 B.R. 727 (D.Ga.1985); In re Marketing Resources Intern Corp., 43 B.R. 71 (Bkrtcy.E.D.Pa.1984). . See, e.g., In re Sturm, 66 B.R. 325 (Bkrtcy.N.D.Ill.1986); In re L.T. Ruth Coal Co., Inc., 66 B.R. 753 (Bkrtcy.E.D.Ky.1986); In re Shaford Companies, Inc., 52 B.R. 832 (Bkrtcy.D.N.H.1985); In re TWI, Inc., 51 B.R. 470 (Bkrtcy.E.D.Va.1985); In re American Energy, Inc., 50 B.R. 175 (Bkrtcy.D.N.D.1985); In re Morse Electric Co., Inc., 47 B.R. 234 (Bkrtcy.N.D.Ind.1985); In re Pierce, 44 B.R. 601 (D.Colo.1984); Mohawk Industries v. Robinson Industries, 46 B.R. 464 (D.Mass.1985); In re Smith-Douglass, Inc., 43 B.R. 616 (Bkrtcy.E.D.N.C.1984); In re Atlas Automation, Inc., 42 B.R. 246 (Bkrtcy.E.D.Mich.1984); In re Dakota" }, { "docid": "14593651", "title": "", "text": "dependent upon its success in this litigation, the Court should classify the action sub judice as a “core proceeding.” As further support for its assertion of core status, United cites the salutary impact which the prompt resolution of this dispute in a specialized court would have upon the bankruptcy estate. Finally, according to United, § 157(b)(2)(E) — which stipulates that an action by a party seeking a turnover order pursuant to 11 U.S.C. § 542 is a core proceeding — also vests jurisdiction in the Court to hear and determine this adversary proceeding. Rite Aid rejoins by arguing that United’s action may not be classified properly as a core matter under § 157(b)(2)(A), (E), or (0). The respective arguments of the parties shall be examined below. 4. The Arguments of the Parties (a) Jurisdiction Under § 157(b)(2)(A) and (0): The “Catchall” Provisions According to United, its ability to fund a plan of reorganization hinges upon successful litigation of the instant action to collect an account receivable allegedly owed by Rite Aid. In addition, United posits that the prompt resolution of this accounts receivable action in a specialized, adjunct court “is vital to estate administration.” United Memorandum at 7. Consequently, United argues that this lawsuit is a core proceeding under the so-called “catchall” provisions of § 157(b)(2)(A) and (0). Support for United’s position may be found in the following cases: Lesser v. A-Z Assocs. (In re Lion Capital Group), 46 B.R. 850 (Bankr.S.D.N.Y.1985), aff'd., 63 B.R. 199 (S.D.N.Y.1986); Baldwin-United Corp. v. Thompson (In re Baldwin-United Corp.), 48 B.R. 49 (Bankr.S.,D. Ohio 1985); Allard v. Benjamin (In re DeLorean Motor Co.), 49 B.R. 900 (Bankr.E.D. Mich.1985); Fisher v. Ins. Co. of the State of Pennsylvania (In re Pied Piper Casuals, Inc.), 50 B.R. 549 (Bankr.S.D.N.Y. 1985); L.A. Clarke & Son, Inc. v. Bullock Constr., Inc. (In re L.A. Clarke & Son, Inc.), 51 B.R. 31 (Bankr.D.C.1985); National Equip. & Mold Corp. v. Apollo Tire Co., Inc. (In re National Equip. & Mold Corp.), 60 B.R. 133 (Bankr.N.D.Ohio 1986); Mansker v. Campbell (In re Mansker), 60 B.R. 803 (Bankr.D.Mass.1986); Franklin Computer Corp. v." }, { "docid": "142018", "title": "", "text": "a trustee or debtor in possession to collect an account receivable is a noncore proceeding. In re Smith-Douglass, Inc., 43 B.R. 616 (Bankr.E.D.N.C.1984). The reason it is noncore is because an action to collect a contested account receivable is “similar in legal nature” to a breach of contract action which was the subject matter of Marathon. In re Atlas Automation, Inc., 42 B.R. 246, 247 (Bankr.E.D. MI 1984). A suit to collect a prepetition account receivable is an in per-sonam cause of action owned by a debtor at the time of the commencement of the case which became part of the estate under § 541 of the Code. Cf. 1 L. King, Collier on Bankruptcy, 11 3.01, at 3-27 (15th ed. 1985). In re Northern Design, Inc., 53 B.R. 25 (Bankr.D. VT 1985). But also see the following cases to the contrary. Matter of Baldwin-United Corp., 48 B.R. 49 (Bankr.S.D. OH 1985); In re Franklin Computer Corp., 50 B.R. 620 (Bankr.E.D. PA 1985); In re L.A. Clarke and Sons, Inc., 51 B.R. 31 (Bankr.D.D.C.1985); and In re All American of Ashburn, Inc., 49 B.R. 926 (Bankr.N.D. GA 1985). This court, however, has held that a determination of the validity of a lease termination for purposes of assumption under 11 U.S.C. § 365(a) is a core proceeding notwithstanding that the crucial issue is whether there has been a breach of contract and proper termination. It is a core proceeding because the determination, although utilizing state law, is integral to the determination of a federal question — may the lease be assumed under 11 U.S.C. § 365(a). In re Nexus Communications, Inc., 55 B.R. 596 (Bankr.E.D.N.C.1985); Moody v. Amoco Oil Co., 734 F.2d 1200 (7th Cir.1984); and Seacoast Products Inc. v. Spring Valley Farms, Inc., 34 B.R. 379 (D.C.M.D.N.C.1983). The defendants contend that because the plaintiff’s causes of action turn on state law this adversary proceeding must be a noncore proceeding. Core proceedings, however, will frequently involve issues of state law. 28 U.S.C. § 157(b)(3) says that, [a] determination that a proceeding is not a core proceeding shall not be made solely" }, { "docid": "14593652", "title": "", "text": "that the prompt resolution of this accounts receivable action in a specialized, adjunct court “is vital to estate administration.” United Memorandum at 7. Consequently, United argues that this lawsuit is a core proceeding under the so-called “catchall” provisions of § 157(b)(2)(A) and (0). Support for United’s position may be found in the following cases: Lesser v. A-Z Assocs. (In re Lion Capital Group), 46 B.R. 850 (Bankr.S.D.N.Y.1985), aff'd., 63 B.R. 199 (S.D.N.Y.1986); Baldwin-United Corp. v. Thompson (In re Baldwin-United Corp.), 48 B.R. 49 (Bankr.S.,D. Ohio 1985); Allard v. Benjamin (In re DeLorean Motor Co.), 49 B.R. 900 (Bankr.E.D. Mich.1985); Fisher v. Ins. Co. of the State of Pennsylvania (In re Pied Piper Casuals, Inc.), 50 B.R. 549 (Bankr.S.D.N.Y. 1985); L.A. Clarke & Son, Inc. v. Bullock Constr., Inc. (In re L.A. Clarke & Son, Inc.), 51 B.R. 31 (Bankr.D.C.1985); National Equip. & Mold Corp. v. Apollo Tire Co., Inc. (In re National Equip. & Mold Corp.), 60 B.R. 133 (Bankr.N.D.Ohio 1986); Mansker v. Campbell (In re Mansker), 60 B.R. 803 (Bankr.D.Mass.1986); Franklin Computer Corp. v. Apple Computer (In re Franklin Computer Corp.), 60 B.R. 795 (Bankr.E.D.Pa.1986); In re Windsor Communications Group, 67 B.R. 692 (Bankr.E.D.Pa.1986); Allegheny, Inc. v. Laniado Wholesale Co. (In re Allegheny, Inc.), 68 B.R. 183 (Bankr.W.D.Pa.1986). In each of the above decisions the courts concluded that Marathon -type, state law contract actions are properly designated as core proceedings under the catchall provisions of § 157(b)(2)(A) and (0). This conclusion was based, inter alia, upon the need to dispose expeditiously of such litigation in a specialized court in order to avoid the delay which inevitably would attend the referral of the cases to crowded district and state court dockets. See, e.g., Lion Capital, 46 B.R. at 860. The salutary impact that successful resolution of such traditional contract actions will have upon the estate is another oft-cited rationale underlying this line of authority. Acolyte Elec. Corp. v. City of New York, 69 B.R. 155, 175 (Bankr.E.D.N.Y.1986). The analysis of the cases set forth above, and likewise, the logic of United’s argument, is not convincing. As Judge Holland noted in" }, { "docid": "18599683", "title": "", "text": "prosecute an unliquidated claim based upon a transaction totally unrelated to the debtor’s financial affairs, such as a claim arising from personal injury, wrongful death or a division of marital property upon divorce. Such claims ordinarily would be tried in a state court but, because of a pending bankruptcy action, are swept into the jurisdiction of an Article I bankruptcy court because of the expansive definition of “property of the estate” as set forth in 11 U.S.C. § 541. These are the claims that concerned the Supreme Court in its Marathon decision. Macon Prestressed Concrete v. Duke, 46 B.R. 727, 731 (D.Ga.1985). Debtor’s counterclaim asserted in this adversary proceeding is “inextricably tied to the bankruptcy proceeding.” In re All American of Ashbum, Inc., 49 B.R. 926, 927 (Bankr.N.D.Ga.1985). If debtor prevails on the merits of its complaint, over $3 million in property will come into the estate. If debtor does not prevail, Grumman’s creditor’s claim which exceeds $1 million will be included in debtor’s plan of reorganization. Each is “inextricably tied to the bankruptcy proceeding.” Although the rights of the parties regarding the contract dispute are controlled by state law, the applicable state law does not appear to be unsettled to the extent that it requires state law interpretation, c.f, In re World Financial Services Center, Inc., 64 B.R. 980 (Bankr.S.D.Cal.1986). Voluntary abstention is not warranted, and this action should be retained within the jurisdiction of this Court. Attorney for debtor is directed to prepare an order in conformance with this Memorandum Decision within ten (10) days from the date of entry hereof. . See, e.g., In re Wood, 52 B.R. 513 (Bankr.N.D.Ala. 1985); Matter of Baldwin-United Corp., 52 B.R. 539 (Bankr.S.D.Ohio 1985); In re Pied Piper Casuals, Inc., 50 B.R. 549 (Bankr.S.D.N.Y.1985); In re All American of Ashbum, Inc., 49 B.R. 926 (Bankr.N.D.Ga.1985); In re De Lorean Motor Co., 49 B.R. 900 (Bankr.E.D.Mich.1985); In re Harry C. Partridge, Jr. & Sons, Inc., 48 B.R. 1006 (Bankr.S.D.N.Y.1985); In re Lion Capital Group, 46 B.R. 850 (Bankr.S.D.N.Y.1985); Macon Prestressed Concrete Co. v. Duke, 46 B.R. 727 (D.Ga.1985); In re Marketing Resources" }, { "docid": "18599685", "title": "", "text": "Intern Corp., 43 B.R. 71 (Bankr.E.D.Pa.1984). . See, e.g., In re Sturm, 66 B.R. 325 (Bankr.N.D. Ill.1986); In re L.T. Ruth Coal Co., Inc., 66 B.R. 753 (Bankr.E.D.Ky.1986); In re Shaford Companies, Inc., 52 B.R. 832 (Bankr.D.N.H.1985); In re TWI, Inc., 51 B.R. 470 (Bankr.E.D.Va.1985); In re American Energy, Inc., 50 B.R. 175 (Bankr.D.N.D.1985); In re Morse Electric Co., Inc., 47 B.R. 234 (Bankr.N.D.Ind.1985); In re Pierce, 44 B.R. 601 (D.Colo.1984); Mohawk Industries v. Robinson Industries, 46 B.R. 464 (D.Mass.1985); In re Smith-Douglass, Inc., 43 B.R. 616 (Bankr.E.D.N.C.1984); In re Atlas Automation, Inc., 42 B.R. 246 (Bankr.E.D.Mich.1984); In re Dakota Grain Systems, Inc., 41 B.R. 749 (Bankr.D.N.D.1984). . Abstention here would create an anomalous result. By filing this adversary proceeding, debtor combines its objection to Grumman’s creditor's claim with its claim for affirmative relief. Both claims arise out of the same contract. The anomaly is that by debtor's procedural choice to join these two causes of action, it may lose bankruptcy jurisdiction under the doctrine of abstention. To avoid this result, debtor is forced to split its causes of action by first objecting to Grumman’s creditor's claim in bankruptcy court and later seeking affirmative relief in a state court action. The twin policies of bankruptcy—(1) debtor relief and rehabilita tion, and (2) fair, equitable and orderly treatment of creditors — are not served by abstaining in this matter." }, { "docid": "4688131", "title": "", "text": "Oil Co., 46 B.R. 731 (Bankr.D.Colo.1985); In re Atlas Automation, Inc., 42 B.R. 246 (Bankr.E.D. Mich.1984). See also 1 Collier on Bankruptcy If 3.01 at 3-42 (1986) (describing as “egregious\" error Cotton v. Shirah (In re All American of Ashhurn, Inc.), 49 B.R. 926, 13 B.C.D. 93 (Bankr. N.D.Ga.1985), which held that a suit to collect prepetition accounts receivable was a core proceeding). Other bankruptcy courts have erroneously held that actions by debtors to collect prepetition accounts receivable are core proceedings. In re Windsor Communications Group, Inc., 67 B.R. 692 (Bankr.E.D.Pa.1986); In re National Equipment & Mold Corp., 60 B.R. 133 (Bankr.N. D.Ohio 1986); In re Ellwood City Iron & Wire Co., 59 B.R. 53 (Bankr.W.D.Pa.1986); In re Bucyrus Grain Co., 56 B.R. 204 (Bankr.D.Kan. 1986); In re Franklin Computer Corp., 50 B.R. 620 (Bankr.E.D.Pa.1985); In re Baldwin-United Corp., 48 B.R. 49 (Bankr.S.D.Ohio 1985); In re Lion Capital Group, 46 B.R. 850 (Bankr.S.D.N.Y. 1985). All of these cases share a common fallacy; They attempt to apply Marathon as defined by Chief Justice Burger in his dissent in that case. Specifically, they make their decision regarding whether a proceeding is core or non-core based on the potential applicability of state law to the proceeding. The plurality opinion in Marathon did not base its decision on the applicability of state law. Instead, it rested on the broader distinction between private and public rights. But the various possible readings of Marathon are not of concern here; the question is not what jurisdiction Marathon left for the bankruptcy courts, for it invalidated the entire jurisdictional grant. The question becomes, then, what Congress delegated to the bankruptcy judges in the 1984 amendments. This is a question of statutory construction, not of defining constitutional limits. Congress based its new jurisdictional scheme on the Marathon plurality opinion. This is clear from Congress’ adoption of the plurality’s language. The term “core” is itself drawn from the plurality opinion, 458 U.S. at 71, 102 S.Ct. at 2871, in the plurality’s discussion of the public rights doctrine. It is also clear from the structure of the new system. Congress adopted" }, { "docid": "18578368", "title": "", "text": "Declining to decide any broad questions on the outer limits of article III, Justice Rehnquist stated that whatever those limits may be, “[n]one of the cases has gone so far as to sanction the type of adjudication to which Marathon will be subjected against its will under the provisions of the 1978 Act.” 458 U.S. at 91 (Rehnquist, J., concurring). The type of adjudication involved in this proceeding is not in any meaningful way distinguishable from the one involved in Northern Pipeline. I am unpersuaded that the revised bankruptcy court structure resulting from the 1984 Act allows bankruptcy courts to hear and determine, without consent, account receivable actions brought by the estate against a defendant who has not filed a claim. Accord: Mohawk Indus. v. Robinson Indus., 46 B.R. 464 (D.Mass.1985); Pierce v. Airport Devel. Co. (In re Pierce), 44 B.R. 601 (D. Colo.1984); Shaford Cos., Inc. v. Curr International Coffees, Inc. (In re Shaford Cos., Inc.), 52 B.R. 832 (Bankr. D.N.H.1985); Nanodata Computer Corp. v. Kollmorgen Corp. (In re Nanodata Computer Corp.), 52 B.R. 334 (Bankr.W.D.N.Y.1985); Maislin Indus. v. C J Van Houten (In re Maislin Indus.), 50 B.R. 943 (Bankr.E.D.Mich.1985); Braucher v. Continental Ill. Nat’l Bank & Trust (In re Illinois-California Express, Inc.), 50 B.R. 232 (Bankr.D.Colo.1985); Bokum Resources Corp. v. LILCO (In re Bokum Resources Corp.), 49 B.R. 854 (Bankr.D.N.M.1985); Appel v. Mainstar Oil Co. (In re B & L Oil Co.), 46 B.R. 731 (Bankr. D. Colo.1985); Atlas Automation, Inc. v. Jensen, Inc. (In re Atlas Automation, Inc.), 42 B.R. 246 (Bankr. E.D. Mich.1984). Contra: Willis v. Ryan (In re Bucyrus Grain Co.), 56 B.R. 204 (Bankr.D.Kan.1986); In re Wood, 52 B.R. 513 (Bankr.N.D.Ala.1985); Franklin Computer Corp. v. Harry Strauss & Sons, Inc. (In re Franklin Computer Corp.), 50 B.R. 620 (Bankr.E.D.Pa.1985); Fisher v. Insurance Co. of Pa. (In re Pied Piper Casuals), 50 B.R. 549 (Bankr.S.D.N.Y.1985); Brodsky v. Schnepper (In re Gross), 48 B.R. 674 (Bankr.E.D.Pa.1985); Baldwin-United Corp. v. Thompson (Matter of Baldwin-United Corp.), 48 B.R. 49 (Bankr.S.D. Ohio 1985); Lesser v. A-Z Assoc. (In re Lion Capital Group), 46 B.R. 850 (Bankr.S.D.N.Y.1985). IV. A." }, { "docid": "142014", "title": "", "text": "have attempted to ascertain the meaning of “core proceeding.” The term is not defined, but 28 U.S.C. § 157(b)(2) provides fifteen nonexclusive categories of “core proceedings.” Some courts have given “core proceeding” a narrow construction while others have taken a more expansive approach. Some of the cases which reflect a narrow view include Mohawk Industries, Inc. v. Robinson Industries, Inc., 46 B.R. 464 (D.C.D. MA 1985); In re Pierce, 44 B.R. 601 (D.C.D. CO 1984); In re Bokum Resources Corp., 49 B.R. 854 (Bankr.D.N.M.1985); In re Nanodata Computer Corp., 52 B.R. 334 (Bankr.W.D.N.Y.1985); In re TWI, Inc., 51 B.R. 470 (Bankr.E.D. VA 1985); In re Morse Electric Co., Inc., 47 B.R. 234 (Bankr.N.D. IN 1985); In re Shaford Companies, Inc., 52 B.R. 832 (Bankr.D.N.H.1985); and In re American Energy, Inc., 50 B.R. 175 (Bankr.D.N.D.1985). Support for a broad reading of “core proceeding” can be found in In re Lion Capital Group, 46 B.R. 850 (Bankr.S.D.N.Y.1985); In re Pied Piper Casuals, Inc., 50 B.R. 549 (Bankr.S.D.N.Y.1985); In re DeLorean Motor Co., 49 B.R. 900 (Bankr.E.D. MI 1985); and Matter of Baldwin-United Corp., 48 B.R. 49 (Bankr.S.D. OH 1985). This court is convinced that Congress intended “core proceeding” to be read as broadly as possible. The language of 28 U.S.C. § 157(b)(2)(0) says that a core proceeding includes, other proceedings affecting the liquidation of the assets of the estate or the adjustment of the debtor-creditor or the equity security holder relationship, except personal injury tort or wrongful death claims. That language is extremely comprehensive, but the definition of core proceeding is nevertheless limited by the case of Northern Pipeline Construction Co. v. Marathon Pipe Line Co., 458 U.S. 50, 102 S.Ct. 2858, 73 L.Ed.2d 598 (1982). The holding of Marathon is found in Justice Rehnquist’s concurring opinion, the key passage being as follows: From the record before us, the lawsuit in which Marathon was named defendant seeks damages for breach of contract, misrepresentation, and other counts which are the stuff of the traditional actions at common law tried by the courts at Westminster in 1789. There is apparently no federal rule of" }, { "docid": "9621577", "title": "", "text": "(Bankr.E.D.Pa.1985); In re L.A. Clarke and Son, Inc. 51 B.R. 31 (Bankr.D.D.C.1985); In re Pied Piper Casuals, Inc., 50 B.R. 549 (Bankr.S.D.N.Y.1985); In re All American of Ashburn, Inc. 49 B.R. 926 (Bankr.N.D.Ga.1985); In re DeLorean Motor Co., 49 B.R. 900 (Bankr.E.D.Mich.1985); In re Harry C. Partridge, Jr. & Sons, Inc. 48 B.R. 1006 (Bankr.S.D.N.Y.1985); In re Baldwin-United Corp., 48 B.R. 49 (Bankr.S.D.Ohio 1985); In re Lion Capital Group, 46 B.R. 850 (Bankr.S.D.N.Y.1985); with In re Shaford Companies, Inc. 52 B.R. 832 (Bankr.D.N.H.1985); State Bank of Lombard v. Chart House, Inc., 46 B.R. 468 (Bankr.N.D.Ill.1985); In re Smith-Douglass, Inc., 43 B.R. 616 (Bankr.E.D.N.C.1984); In re Atlas Automation, Inc., 42 B.R. 246 (Bankr. E.D.Mich.1984); In re Dakota Grain Systems, Inc., 41 B.R. 749 (Bankr.D.N.D.1984). Consistent with its earlier opinion in Mohawk Industries, Inc. v. Robinson Industries, Inc., 46 B.R. 464 (D.Mass.1985), the district court in Apkin narrowly construed section 157. It concluded that a debtor-in-possesion’s suit to recover a post-petition account receivable was a non-core matter, relying on the Supreme Courts decision in Marathon. The court found the debtor’s attempts to distinguish Marathon more persuasive than some of the decisions upon which the Debtor relied. Nevertheless, the Apkin court rejected the debtor’s arguments that an account receivable action is distinguishable from a state contract or warranty claim. Additionally, the court was unpersuaded by the fact that the defendants, not the plaintiff, interjected “complexities” of state law into the proceeding and demanded a jury trial. The court stated: The essential thing about the Supreme Court’s holding in Marathon, is that it is not phrased in terms of fundamental unfairness to the rights of one party or of a party being forced to litigate in a court against his wishes. Rather, it goes to the heart of article III of the Constitution and the very basic principle that only judges invested with the mantle of article III status have the power to affect the substantial state-created rights of litigants, with or without their consent. Arnold Printworks, Inc. v. Apkin, 61 B.R. 520, 525 (D.Mass.1986) (footnote omitted). Unlike the Apkin case, the instant case" }, { "docid": "142013", "title": "", "text": "to the bankruptcy court by a general order of reference dated August 3, 1984. What authority the bankruptcy court may exercise with respect to a proceeding will depend upon whether the proceeding is a “core proceeding” or a “noncore proceeding.” The bankruptcy court may hear and determine all issues in core proceedings (28 U.S.C. § 157(b)(1); Briden v. Foley, 776 F.2d 379, 381 (1st Cir.1985); In re Production Steel, Inc., 48 B.R. 841 (D.C.M.D. TN 1985); Ram Construction Company, Inc. v. Port Authority of Allegheny County, 49 B.R. 363 (D.C.W.D. PA 1985)), but, in the absence of the consent of the parties, may only enter proposed findings which are subject to a de novo review by the district court in proceedings which are “noncore” (28 U.S.C. § 157(c)). The determination of whether a proceeding is “core” or “noncore” is initially made by the bankruptcy court. 28 U.S.C. § 157(b)(3); In re Lion Capital Group, 48 B.R. 329 (D.C.S.D.N.Y.1985). Since the enactment of the Bankruptcy Amendments and Federal Judgeship Act on July 10, 1984, many courts have attempted to ascertain the meaning of “core proceeding.” The term is not defined, but 28 U.S.C. § 157(b)(2) provides fifteen nonexclusive categories of “core proceedings.” Some courts have given “core proceeding” a narrow construction while others have taken a more expansive approach. Some of the cases which reflect a narrow view include Mohawk Industries, Inc. v. Robinson Industries, Inc., 46 B.R. 464 (D.C.D. MA 1985); In re Pierce, 44 B.R. 601 (D.C.D. CO 1984); In re Bokum Resources Corp., 49 B.R. 854 (Bankr.D.N.M.1985); In re Nanodata Computer Corp., 52 B.R. 334 (Bankr.W.D.N.Y.1985); In re TWI, Inc., 51 B.R. 470 (Bankr.E.D. VA 1985); In re Morse Electric Co., Inc., 47 B.R. 234 (Bankr.N.D. IN 1985); In re Shaford Companies, Inc., 52 B.R. 832 (Bankr.D.N.H.1985); and In re American Energy, Inc., 50 B.R. 175 (Bankr.D.N.D.1985). Support for a broad reading of “core proceeding” can be found in In re Lion Capital Group, 46 B.R. 850 (Bankr.S.D.N.Y.1985); In re Pied Piper Casuals, Inc., 50 B.R. 549 (Bankr.S.D.N.Y.1985); In re DeLorean Motor Co., 49 B.R. 900 (Bankr.E.D. MI" }, { "docid": "142017", "title": "", "text": "be. None of the cases has gone so far as to sanction the type of adjudication to which Marathon will be subjected against its will under the provisions of the 1978 Act. To whatever extent different pow ers granted under that Act might be sustained under the ‘public rights’ doctrine of Murray’s Lessee v. Hoboken Land & Improvement Co., 18 How. 272 [59 U.S. 272] 15 L.Ed. 372 (1855), and succeeding cases, I am satisfied that the adjudication of Northern’s lawsuit cannot be so sustained. 102 S.Ct. at 2881-82; In re Shaford Companies, Inc., 52 B.R. 832, 835 (Bankr.D.N.H.1985). 1 L. King, Collier on Bankruptcy, II 3.01, at 3-32 (15th ed. 1985). The United States Court of Appeals for the Sixth Circuit has said, [t]he thrust of the Northern Pipeline holding is that peripheral, non-traditional bankruptcy issues such as claims by the bankrupt against non-creditors cannot be adjudicated by a non-Art. III judge. White Motor Corp. v. Citibank, N.A., 704 F.2d 254, 263 (6th Cir.1983). This court has held, without discussion, that an action by a trustee or debtor in possession to collect an account receivable is a noncore proceeding. In re Smith-Douglass, Inc., 43 B.R. 616 (Bankr.E.D.N.C.1984). The reason it is noncore is because an action to collect a contested account receivable is “similar in legal nature” to a breach of contract action which was the subject matter of Marathon. In re Atlas Automation, Inc., 42 B.R. 246, 247 (Bankr.E.D. MI 1984). A suit to collect a prepetition account receivable is an in per-sonam cause of action owned by a debtor at the time of the commencement of the case which became part of the estate under § 541 of the Code. Cf. 1 L. King, Collier on Bankruptcy, 11 3.01, at 3-27 (15th ed. 1985). In re Northern Design, Inc., 53 B.R. 25 (Bankr.D. VT 1985). But also see the following cases to the contrary. Matter of Baldwin-United Corp., 48 B.R. 49 (Bankr.S.D. OH 1985); In re Franklin Computer Corp., 50 B.R. 620 (Bankr.E.D. PA 1985); In re L.A. Clarke and Sons, Inc., 51 B.R. 31 (Bankr.D.D.C.1985); and" }, { "docid": "18801607", "title": "", "text": "Matter of Baldwin-United Corp., 52 B.R. 539 (Bkrtcy.S.D.Ohio 1985); In re Pied Piper Casuals, Inc., 50 B.R. 549 (Bkrtcy.S.D.N.Y.1985); In re All American of Ashburn, Inc., 49 B.R. 926 (Bkrtcy.N.D.Ga.1985); In re De Lorean Motor Co., 49 B.R. 900 (Bkrtcy.E.D.Mich.1985); In re Harry C. Partridge, Jr. & Sons, Inc., 48 B.R. 1006 (S.D.N.Y.1985); In re Lion Capital Group, 46 B.R. 850 (Bkrtcy.S.D.N.Y.1985); Macon Prestressed Concrete Co. v. Duke, 46 B.R. 727 (D.Ga.1985); In re Marketing Resources Intern Corp., 43 B.R. 71 (Bkrtcy.E.D.Pa.1984). . See, e.g., In re Sturm, 66 B.R. 325 (Bkrtcy.N.D.Ill.1986); In re L.T. Ruth Coal Co., Inc., 66 B.R. 753 (Bkrtcy.E.D.Ky.1986); In re Shaford Companies, Inc., 52 B.R. 832 (Bkrtcy.D.N.H.1985); In re TWI, Inc., 51 B.R. 470 (Bkrtcy.E.D.Va.1985); In re American Energy, Inc., 50 B.R. 175 (Bkrtcy.D.N.D.1985); In re Morse Electric Co., Inc., 47 B.R. 234 (Bkrtcy.N.D.Ind.1985); In re Pierce, 44 B.R. 601 (D.Colo.1984); Mohawk Industries v. Robinson Industries, 46 B.R. 464 (D.Mass.1985); In re Smith-Douglass, Inc., 43 B.R. 616 (Bkrtcy.E.D.N.C.1984); In re Atlas Automation, Inc., 42 B.R. 246 (Bkrtcy.E.D.Mich.1984); In re Dakota Grain Systems, Inc., 41 B.R. 749 (Bkrtcy.D.N.D.1984). .RULE 2.203 JOINDER OF CLAIMS, COUNTERCLAIMS, AND CROSS-CLAIMS (A) Compulsory Joinder. (1) In a pleading that states a claim against an opposing party, the pleader must join every claim that the pleader has against that opposing party at the time of serving the pleading, if it arises out of the transaction or occurrence that is the subject matter of the action and does not require for its adjudication the presence of third parties over whom the court cannot acquire jurisdiction. (E) Time for Filing Counterclaim or Cross-Claim. A counterclaim or cross-claim must be filed with the answer of filed as an amendment in the manner provided by MCR 2.118. If a motion to amend to state a counterclaim or cross-claim is denied, the litigation of that claim in another action is not precluded unless the court specifies otherwise. . See, e.g., In re Franklin Computer Corp., 50 B.R. 620 (Bkrtcy.E.D.Pa.1985); In re Lion Capital Group, 46 B.R. 850 (Bkrtcy.S.D.N.Y.1985); In re Harry C. Partridge, Jr. & Sons, Inc.," }, { "docid": "18599684", "title": "", "text": "Although the rights of the parties regarding the contract dispute are controlled by state law, the applicable state law does not appear to be unsettled to the extent that it requires state law interpretation, c.f, In re World Financial Services Center, Inc., 64 B.R. 980 (Bankr.S.D.Cal.1986). Voluntary abstention is not warranted, and this action should be retained within the jurisdiction of this Court. Attorney for debtor is directed to prepare an order in conformance with this Memorandum Decision within ten (10) days from the date of entry hereof. . See, e.g., In re Wood, 52 B.R. 513 (Bankr.N.D.Ala. 1985); Matter of Baldwin-United Corp., 52 B.R. 539 (Bankr.S.D.Ohio 1985); In re Pied Piper Casuals, Inc., 50 B.R. 549 (Bankr.S.D.N.Y.1985); In re All American of Ashbum, Inc., 49 B.R. 926 (Bankr.N.D.Ga.1985); In re De Lorean Motor Co., 49 B.R. 900 (Bankr.E.D.Mich.1985); In re Harry C. Partridge, Jr. & Sons, Inc., 48 B.R. 1006 (Bankr.S.D.N.Y.1985); In re Lion Capital Group, 46 B.R. 850 (Bankr.S.D.N.Y.1985); Macon Prestressed Concrete Co. v. Duke, 46 B.R. 727 (D.Ga.1985); In re Marketing Resources Intern Corp., 43 B.R. 71 (Bankr.E.D.Pa.1984). . See, e.g., In re Sturm, 66 B.R. 325 (Bankr.N.D. Ill.1986); In re L.T. Ruth Coal Co., Inc., 66 B.R. 753 (Bankr.E.D.Ky.1986); In re Shaford Companies, Inc., 52 B.R. 832 (Bankr.D.N.H.1985); In re TWI, Inc., 51 B.R. 470 (Bankr.E.D.Va.1985); In re American Energy, Inc., 50 B.R. 175 (Bankr.D.N.D.1985); In re Morse Electric Co., Inc., 47 B.R. 234 (Bankr.N.D.Ind.1985); In re Pierce, 44 B.R. 601 (D.Colo.1984); Mohawk Industries v. Robinson Industries, 46 B.R. 464 (D.Mass.1985); In re Smith-Douglass, Inc., 43 B.R. 616 (Bankr.E.D.N.C.1984); In re Atlas Automation, Inc., 42 B.R. 246 (Bankr.E.D.Mich.1984); In re Dakota Grain Systems, Inc., 41 B.R. 749 (Bankr.D.N.D.1984). . Abstention here would create an anomalous result. By filing this adversary proceeding, debtor combines its objection to Grumman’s creditor's claim with its claim for affirmative relief. Both claims arise out of the same contract. The anomaly is that by debtor's procedural choice to join these two causes of action, it may lose bankruptcy jurisdiction under the doctrine of abstention. To avoid this result, debtor is forced to" }, { "docid": "4688130", "title": "", "text": "that are of concern in traditional separation of powers analysis, article III carries with it a guarantee to the public that private rights will be allowed vindication in independent tribunals. Pacemaker Diagnostic Clinic of America, Inc. v. Instromedix, Inc., 725 F.2d 537, 541 (9th Cir.1984). In short, concern for the integrity of the judicial power prevents the judicial branch from delegating its essential attributes to non-article III creations. See id. at 544 (recognizing that article III requires that judiciary retain control over \"interpretation, declaration, and application of federal law”). See also Note, Masters and Magistrates, 88 Harv.L.Rev. 779, 780-89 (1975). . Several bankruptcy courts have also correctly held that a suit by a debtor to collect prepetition accounts receivable is a non-core proceeding. In re Century Brass Products, Inc., 58 B.R. 838 (Bankr.D.Conn.1986); In re Satelco, Inc., 58 B.R. 781 (Bankr.N.D.Tex.1986); In re Arnold Print Works, Inc., 54 B.R. 562 (Bankr.D.Mass. 1985), aff’d, 61 B.R. 520 (D.Mass 1986); Englander Co. v. City Mattress of Amherst, Inc., 52 B.R. 875 (Bankr.C.D.Cal.1985); In re B & L Oil Co., 46 B.R. 731 (Bankr.D.Colo.1985); In re Atlas Automation, Inc., 42 B.R. 246 (Bankr.E.D. Mich.1984). See also 1 Collier on Bankruptcy If 3.01 at 3-42 (1986) (describing as “egregious\" error Cotton v. Shirah (In re All American of Ashhurn, Inc.), 49 B.R. 926, 13 B.C.D. 93 (Bankr. N.D.Ga.1985), which held that a suit to collect prepetition accounts receivable was a core proceeding). Other bankruptcy courts have erroneously held that actions by debtors to collect prepetition accounts receivable are core proceedings. In re Windsor Communications Group, Inc., 67 B.R. 692 (Bankr.E.D.Pa.1986); In re National Equipment & Mold Corp., 60 B.R. 133 (Bankr.N. D.Ohio 1986); In re Ellwood City Iron & Wire Co., 59 B.R. 53 (Bankr.W.D.Pa.1986); In re Bucyrus Grain Co., 56 B.R. 204 (Bankr.D.Kan. 1986); In re Franklin Computer Corp., 50 B.R. 620 (Bankr.E.D.Pa.1985); In re Baldwin-United Corp., 48 B.R. 49 (Bankr.S.D.Ohio 1985); In re Lion Capital Group, 46 B.R. 850 (Bankr.S.D.N.Y. 1985). All of these cases share a common fallacy; They attempt to apply Marathon as defined by Chief Justice Burger in his" }, { "docid": "18578369", "title": "", "text": "334 (Bankr.W.D.N.Y.1985); Maislin Indus. v. C J Van Houten (In re Maislin Indus.), 50 B.R. 943 (Bankr.E.D.Mich.1985); Braucher v. Continental Ill. Nat’l Bank & Trust (In re Illinois-California Express, Inc.), 50 B.R. 232 (Bankr.D.Colo.1985); Bokum Resources Corp. v. LILCO (In re Bokum Resources Corp.), 49 B.R. 854 (Bankr.D.N.M.1985); Appel v. Mainstar Oil Co. (In re B & L Oil Co.), 46 B.R. 731 (Bankr. D. Colo.1985); Atlas Automation, Inc. v. Jensen, Inc. (In re Atlas Automation, Inc.), 42 B.R. 246 (Bankr. E.D. Mich.1984). Contra: Willis v. Ryan (In re Bucyrus Grain Co.), 56 B.R. 204 (Bankr.D.Kan.1986); In re Wood, 52 B.R. 513 (Bankr.N.D.Ala.1985); Franklin Computer Corp. v. Harry Strauss & Sons, Inc. (In re Franklin Computer Corp.), 50 B.R. 620 (Bankr.E.D.Pa.1985); Fisher v. Insurance Co. of Pa. (In re Pied Piper Casuals), 50 B.R. 549 (Bankr.S.D.N.Y.1985); Brodsky v. Schnepper (In re Gross), 48 B.R. 674 (Bankr.E.D.Pa.1985); Baldwin-United Corp. v. Thompson (Matter of Baldwin-United Corp.), 48 B.R. 49 (Bankr.S.D. Ohio 1985); Lesser v. A-Z Assoc. (In re Lion Capital Group), 46 B.R. 850 (Bankr.S.D.N.Y.1985). IV. A. Century next argues that even if its actions to collect on prepetition accounts receivable would not otherwise be treated as core proceedings, the assertion of “unrelated” counterclaims by the defendants makes such treatment appropriate. Citing § 157(b)(2)(C), which designates as core proceedings counterclaims by the estate against persons filing claims against the estate, Century contends that the same designation should be given a counterclaim asserted against a complaint brought by the estate. Century characterizes the fact that its complaint was filed first, with the defendants’ counterclaims following, as a mere fortuity of timing. Century also cites § 157(b)(2)(B), which classifies allowance or disallowance of claims against the estate as core proceedings. Arguing that the defendants’ counterclaims come within this provision, Century suggests that “[Regardless of its timing, a counterclaim is, after all, a ‘claim’.” I disagree with Century’s contention that the defendants’ counterclaims render the entire actions core proceedings. The counterclaims asserted by the defendants are not “unrelated” to Century’s complaints. Bankr. R. 7013, incorporating Fed.R.Civ.P. 13, provides for counterclaims in bankruptcy. Fed.R.Civ.P. 13(a) states" } ]

[ { "docid": "22234227", "title": "", "text": "from exercising his constitutional right to procreation, see Skinner v. Oklahoma, 316 U.S. 535, 541, 62 S.Ct. 1110, 86 L.Ed. 1655 (1942), and, should he have children to whom the condition applies, it would interfere with his fundamental right to familial integrity, see Gruenke v. Seip, 225 F.3d 290, 303 (3d Cir.2000). It is well established that, although parents have a fundamental right to raise their children, this right can be overridden by the state’s “compelling interest” in ensuring children’s safety. See Croft v. Westmoreland County Children & Youth Servs., 103 F.3d 1123, 1125 (3d Cir. 1997). Thus, convicted pedophiles may, quite legitimately, lose custody of their children or have restrictions placed on their parental rights. However, where there is insufficient evidence to support a finding that children are potentially in danger from their parents, the state’s interest cannot be said to be “compelling,” and thus interference in the family relationship is unconstitutional. See id. at 1126. Loy, after approximately nine years of marriage, is childless; his term of supervised release will last only three years. At most, any children he might have upon his release would be two years old by the time the term ended. There is certainly a legitimate question as to whether the record would support a finding that Loy represents a threat to an infant child of his own. But it is unnecessary to decide this question, because we believe it unlikely that the District Court intended its condition to extend so far. Given the severe intrusion on Loy’s family life that would otherwise result, we believe that, absent a clearer sign from the District Court, the condition should be construed to apply only to other people’s children, and not to Loy’s own. If, at some later date, the District Court should come to believe that it is necessary for the protection of the public or for Loy’s rehabilitation to extend the condition to Loy’s own children, it may consider modifications to the condition in accordance with 18 U.S.C. § 3583(e); the constitutionality of the restriction can likewise be reviewed at that time. We therefore" } ]

[ { "docid": "20033651", "title": "", "text": "Thielemann is prevented from (1) “ownfing] or operat[ing] a personal computer with Internet access in a home or at any other location, including employment, without prior written approval of the Probation Office”; and (2) “possessing] or viewing] any materials, including pictures, photographs, books, writings, drawings or video games depicting and/or describing sexually explicit conduct defined in Title 18 of the United States Code, Section 2256(2).” App. 154-55. The District Court entered judgment on April 30, 2008, and Thielemann timely appealed. We have jurisdiction under 28 U.S.C. § 1291 and 18 U.S.C. § 3742(a). The District Court had jurisdiction pursuant to 18 U.S.C. § 3231. We review the substance of Thielemann’s sentence for abuse of discretion. United States v. Wise, 515 F.3d 207, 218 (3d Cir.2008). We generally review Special Conditions of Supervised Release for abuse of discretion. United States v. Smith, 445 F.3d 713, 716 (3d Cir.2006). Our review here is for plain error because Thielemann did not object in the District Court. United States v. Voelker, 489 F.3d 139, 143 n. 1 (3d Cir.2007); United States v. Olano, 507 U.S. 725, 113 S.Ct. 1770, 123 L.Ed.2d 508 (1993). III. If a sentence “falls -within the broad range of possible sentences that can be considered reasonable in light of the § 3553(a) factors, we must affirm.” Wise, 515 F.3d at 218. “The record must demonstrate the trial court gave meaningful consideration to the § 3553(a) factors.” United States v. Cooper, 437 F.3d 324, 329 (3d Cir.2006). Thielemann argues the District Court did not consider his unique personal circumstances. The District Court’s analysis under 18 U.S.C. § 3553(a) was informed and adequate. Cf. United States v. Lessner, 498 F.3d 185, 203-05 (3d Cir.2007). The court considered the “history and characteristics of the defendant” when it found that Thielemann was not “a victim” but “a predator in his own right” despite having “[a supportive family] [,] a history of being gainfully employed,” and no criminal record. App. 151-52. Despite the multitude and content of the “chats” initiated by Thielemann, and his inducing and encouraging pleas to his associates to engage children in" }, { "docid": "20033656", "title": "", "text": "a clear nexus to the goals of supervised release. United States v. Loy, 237 F.3d 251, 267 (3d Cir.2001). However, “there are First Amendment implications for a ban that extends to explicit material involving adults.” Voelker, 489 F.3d at 151. When a ban restricts access to material protected by the First Amendment, courts must balance the § 3553(a) considerations “against the serious First Amendment concerns endemic in such a restriction.” Id,. It is evident that the District Court’s restriction in this case would protect children from the predatory conduct of Thielemann and thus could contribute to Thielemann’s rehabilitation. Accordingly, the purposes served by the Special Condition far outweigh any Constitutional concerns raised in Loy and Voelker. In Loy, we rejected a condition which prohibited Loy from possessing pornography. Loy had pleaded guilty to receipt of child pornography. His terms of supervised release included a provision prohibiting him from possessing “all forms of pornography, including legal adult pornography.” Loy, 237 F.3d at 253. We noted that restrictions on sexual materials were generally permissible because “almost any restriction upon sexually explicit material may well aid in rehabilitation and protection of the public. Only in the exceptional case, where a ban could apply to any art form that employs nudity, will a defendant’s exercise of First Amendment rights be unconstitutionally circumscribed or chilled.” Id. at 266. However, after discussing the mercurial meaning of the term “pornography,” we held that the provision was (1) overly broad and violated the First Amendment because it “might apply to a wide swath of work ranging from serious art to ubiquitous advertising,” and that it was (2) unconstitutionally vague because “its breadth is unclear.” Id. at 267. Nonetheless, we suggested that “the Constitution would not forbid a more tightly defined restriction on legal, adult pornography, perhaps one that ... borrowed applicable language from the federal statutory definition of child pornography located at 18 U.S.C. § .2256(8).” Id. Several years later, the District Court in Voelker took heed of our suggestion and handed down just such a reformulated restriction relying on 18 U.S.C. § 2256(2). In Voelker, among other" }, { "docid": "19908468", "title": "", "text": "offense and the need to protect the public. We also conclude that the special conditions the district court established do not involve a greater deprivation of liberty than is reasonably necessary to protect the public. The conditions will be informed by a psychological evaluation performed after completion of his sentence, and they can be modified according to the results of that examination. Moreover, we agree with the government that we can fairly presume Smith’s probation officer will apply the conditions in a reasonable manner. But one aspect of the special conditions of supervised release warrants further consideration. Smith has a child, and, read literally, the conditions prohibit contact with his child as well as other minor siblings. Smith points to United States v. Davis, 452 F.3d 991 (8th Cir.2006), United States v. Voelker, 489 F.3d 139 (3d Cir.2007), and United States v. Loy, 237 F.3d 251 (3d Cir.2001), in support of his argument that the special conditions the district court established unduly constrain his liberty. In each of those cases, the court used broad language to impose special conditions of supervised release limiting the defendants’ contact with children. Read literally, the blanket language at issue in those cases — like the language used in the special conditions challenged in this case— could have barred the defendants from having any contact with their own children. Those courts properly recognized the fundamental right of familial association and acknowledged that only a compelling government interest can override that right. For example, in Davis, after noting there was no evidence the defendant had sexually abused or would sexually abuse his child, the court held the conditions restricting the defendant’s access to children, including his own child, were over-broad. See Davis, 452 F.3d at 994-96. Employing the same rationale, the Voelker court, observing there was evidence the defendant may be capable of exploiting his child, remanded the case so the district court could define the scope of the condition in question and supplement the record to show a compelling need for the condition. See Voelker, 489 F.3d at 153-55. Finding there was no evidence the" }, { "docid": "23015284", "title": "", "text": "§ 2256(2) is set forth below. However, even given this refinement, the prohibition on possessing sexually explicit material still sweeps within its reach some legal adult pornography as well as illegal child pornography. Thus, in attempting to avoid the problems the court encountered in Loy, it ignored our caution that “the deprivation of liberty can be no greater than necessary to meet [the] goals [of 18 U.S.C. § 3583(2)].” Loy I, 191 F.3d at 371. Furthermore, the court once again failed to provide an analysis or explanation to support this broad restriction. We realize that the court attempted to justify the prohibition- of adult pornography on remand in Loy by relying upon the asserted difficulty of knowing whether persons depicted in pornography are minors. 237 F.3d at 255. However, that justification does not appear- anywhere on this record. We will not scour the jurisprudence of a sentencing judge in an attempt to divine the justification for a sentence based upon similar sentences that the judge may have explained in a similar case years before, especially since § 3583 requires sentencing courts to explain the sentences they impose. Moreover, even if we were to reach beyond this record and assume the court was relying upon the same justification it furnished in Loy, the instant condition would still be problematic because it includes legal pornography depicting individuals who are clearly not minors. Accordingly, we will also vacate this condition of special release. C. Restriction on Associating with Children The District Court prohibited Voelker from associating with minors without the prior approval of the Probation Officer and mandated that any such contact be in the presence of an adult who is familiar with Voelker’s criminal background. Voelker argues that this condition prevents him from having unsupervised contact with his two children or any children he may have in the future. He claims that it therefore interferes with his constitutional right of procreation; as well as his fundamental liberty and his freedom of association under the First Amendment. Since Voelker did not object to this condition at sentencing, we review for plain error. See" }, { "docid": "20033659", "title": "", "text": "in any way to Voelker’s offense, nor is there any reason to believe that viewing such material would cause Voelker to reoffend.” Id. at 151 (emphasis added). We do not read our precedents as foreclosing the use of conditions banning access to sexually explicit adult materials, particularly when children are victims and are victimized sexually by adults as a means to gratify adult desires. Rather, Loy stood for the proposition that a blanket ban on “all forms of pornography” may be constitutionally infirm, but that more limited provisions “borrowing] applicable language from the federal statutory definition of child pornography,” Loy, 237 F.3d at 267, are permissible. Whatever may be the parameters of “pornography,” see id. at 263-65, the present record transcends the characterization of mere pornography. Here, the record reveals explicit child exploitation and victimization by Thielemann in order to satisfy his sexual appetite for adult men. Unlike in Voelker, there is overwhelming evidence in this record to conclude that Thielemann’s exposure to sexual material, albeit involving only adults, will contribute to future offenses by Thielemann. The report of Thielemann’s own forensic psychiatrist, Carla Rodgers, M.D., reiterates Thielemann’s commingling of adult and child sexual conduct. The report indicates that Thielemann “used [pornographic images of children] in order to seduce heterosexual males into allowing him to perform fellatio on them.” App. 119. While Dr. Rodgers concluded that Thielemann’s primary interest was in men, and that he was “not at risk of child molestation,” the report clearly demonstrates Thielemann’s sexual predilections. Moreover, the “chats” unambiguously reveal that Thielemann’s sexual experiences with adults and adult pornography were inextricably linked to his sexual interest in children. Thielemann made no secret of the fact that his desire arose from adult men who are aroused and sexually excited by children. Said Thielemann: “I used [children] to get what I wanted. I wanted to see men turned on to their peak so they could come and do stuff to me.” App. 149. Indeed, every one of Thielemann’s adult sexual interactions with Phillips involved children. In order to understand Thielemann’s conduct vis-a-vis children and Thielemann’s associates, Thielemann’s “chats”" }, { "docid": "20033666", "title": "", "text": "Jun 11 12:44:36 2006): see if she was there now u could do little stuff just to see what she will say I could walk u threw it lol suekingunowinde (Sun Jun 11 12:45:08 2006): I have never fucked her suekingunowinde (Sun Jun 11 12:45:17 2006): I just had her lick my dick and all came in her mouth cp_2877 (Sun Jun 11 12:45:27 2006): o god don’t do that you would be in truble suckingunowinde (Sun Jun 11 12:45:43 2006): nah did it 4 times alreayd lol 29. On June 11, 2006, via web cam during an online chat Thielemann watched Phillips masturbate. App. 59-60. As we held in Loy, 237 F.3d at 266, “almost any restriction upon sexually explicit material may well aid in rehabilitation and protection of the public.” Here, a reading of the “chats” reveals that restricting Thielemann’s access to adult sexually explicit material will undoubtedly aid in rehabilitation and protection of the public. Given Thielemann’s sexual desire for adult men who abuse children, banning Thielemann from adult sexually explicit material would be an additional deterrent to Thielemann’s sexual arousal and sexual excitement, as it would preclude him from including children in his future sexual experiences. Otherwise, exposure to adult sexually explicit material might very well lead Thielemann to encourage his male associates either to initiate or to continue their abuse of children. In identifying this nexus between restriction and goals as required by Voelker, the Government expressed its fears, which we share. Our approval of the Special Condition which precludes Thielemann from viewing and possessing sexually explicit material was adverted to by the Government at oral argument. We recite the relevant portions of that argument: And, so the risk is this: Do we let this man-do we let this man look at adult pornography which presumably is going to exercise his sexual libido? Do we do that knowing that this man’s history is through a long period of time, with many men, the defendant intends to gratify that sexual interest in adult men with the currency which is child pornography. And I believe what the" }, { "docid": "20033668", "title": "", "text": "District Court did in this case, and indicating that the defendant can not have this sexually explicit conduct, is to guard against the possibility that the public has to be protected to [e]nsure that this will not happen again. Because this is a pervasive problem that this defendant had. It was not an isolated episode. And, the other aspect of this is that the population at risk ... when we say protection of the public, the specific population at risk are the children. So that if the District Court Judge permits the defendant to have access to sexual and explicit material, this sexual explicit material arouses a pattern in the defendant to repeat this behavior. The population at risk, indeed, are children. That’s a risk I submit that the Court reasonably did not take. Tr. of Oral Argument at 14. We hold that there is a significant nexus between restricting Thielemann from access to adult “sexually explicit” material and the goals of supervised release, and that the restriction here is not overbroad or vague considering the content of the instant record. As such, First Amendment implications are not involved. The balancing protocol required by Voelker tilts heavily in favor of protection of the public and children when we consider this record of “inciting to child abuse.” We are fully satisfied that the very unusual situation presented in this case thoroughly predominates over the First Amendment concerns raised in Loy. Accordingly, the District Court committed no error, let alone plain error, in requiring Thielemann’s compliance with this Special Condition of Supervised Release. See United States v. Voelker, 489 F.3d 139, 143 n. 1 (3d Cir.2007); United States v. Olano, 507 U.S. 725, 113 S.Ct. 1770, 123 L.Ed.2d 508 (1993). B. Computer Restriction The District Court’s rationale for imposing the computer restriction is self-evident. Even a cursory reading of the record (and the reproduced sample of the June 11, 2006 “chat,” supra) and the evidence acknowledged by Thielemann when he pleaded guilty, reveal that the offenses in this case evolved from the use of a computer and the internet. The District Court" }, { "docid": "20033677", "title": "", "text": "840, 843, 172 L.Ed.2d 596 (2009), but the District Court in this case did not. Because Thielemann’s sentence was otherwise reasonable, no justification exists for reversing the District Court because of its reliance on a currently valid Guideline. . A ban on sexually explicit material involving children is, of course, reasonable, but unnecessary considering child pornography is already illegal \"and the statutorily mandated conditions of supervised release require [defendants] to comply with\" child pornography laws. United States v. Voelker, 489 F.3d 139, 151 (3d Cir.2007). . Protected materials include \"nonobscene, sexually explicit materials involving persons over the age of 17.\" United States v. X-Citement Video, Inc., 513 U.S. 64, 72, 115 S.Ct. 464, 130 L.Ed.2d 372 (1994). . We recognize that a term of supervised release restricting access to adult sexually oriented materials must be \"narrowly tailored,” i.e., that the restriction must result in a benefit to public safety. United States v. Loy, 237 F.3d 251, 266 (3d Cir.2001). . The \"sexually explicit” materials condition in Voelker is nearly identical to the analogous Special Condition at issue in this appeal. . The children subjected to Thielemann’s sexual predilection may not, in the opinion of Thielemann’s psychiatrist, be directly physically harmed by Thielemann, but Dr. Rodgers, at no time, expressed herself about the psychological trauma experienced by these abused children. Can anyone doubt that an eight-year-old victim, abused by Phillips under the direction of Thielemann, will be psychologically scarred at present and during her later years? . The following terms appear in the text of the \"chat” and require further clarification. On each line of the \"chat” there is a time stamp indicating when each instant message in the “chat” was sent. The words preceding each time stamp are Thielemann’s and Phillips's respective computer user names. Thielemann’s, \"suckingunowinde,” stands for \"sucking you now in Delaware,” a reference to the performance of fellatio on another man. The meaning of Phillips’s user name, \"cp_2877,” is not entirely clear, but \"cp” presumably represents his initials (Christopher Phillips), and “2877” may refer to his birth date or some other significant number. Several internet slang abbreviations" }, { "docid": "20033658", "title": "", "text": "holdings, we overturned a lifetime ban on Voelker’s access to sexually explicit material. Voelker had pleaded guilty to possession of child pornography after he was caught briefly exposing his three-year-old daughter’s buttocks over web cam, and later admitted to downloading pornographic images of children. United States v. Voelker, 489 F.3d 139, 142 (3d Cir.2007). The District Court imposed a lifelong term of supervised release which, inter alia, prohibited Voelker from possessing “any materials ... depicting and/or describing sexually explicit conduct as defined at Title 18, United States Code, Section 2256(2).” Id. at 143 (And, see the definition of “sexually explicit conduct” at note 8, supra ). Voelker argued that the condition violated the First Amendment and involved a “greater deprivation of liberty than is reasonably necessary to deter future criminal conduct and protect the public.” Id. at 150. We held in Voelker that a nexus between the restriction and the goals of supervised release was absent. Id. In particular, we explained that “nothing on th[e] record suggests that sexually explicit material involving only adults contributed in any way to Voelker’s offense, nor is there any reason to believe that viewing such material would cause Voelker to reoffend.” Id. at 151 (emphasis added). We do not read our precedents as foreclosing the use of conditions banning access to sexually explicit adult materials, particularly when children are victims and are victimized sexually by adults as a means to gratify adult desires. Rather, Loy stood for the proposition that a blanket ban on “all forms of pornography” may be constitutionally infirm, but that more limited provisions “borrowing] applicable language from the federal statutory definition of child pornography,” Loy, 237 F.3d at 267, are permissible. Whatever may be the parameters of “pornography,” see id. at 263-65, the present record transcends the characterization of mere pornography. Here, the record reveals explicit child exploitation and victimization by Thielemann in order to satisfy his sexual appetite for adult men. Unlike in Voelker, there is overwhelming evidence in this record to conclude that Thielemann’s exposure to sexual material, albeit involving only adults, will contribute to future offenses by" }, { "docid": "19908469", "title": "", "text": "to impose special conditions of supervised release limiting the defendants’ contact with children. Read literally, the blanket language at issue in those cases — like the language used in the special conditions challenged in this case— could have barred the defendants from having any contact with their own children. Those courts properly recognized the fundamental right of familial association and acknowledged that only a compelling government interest can override that right. For example, in Davis, after noting there was no evidence the defendant had sexually abused or would sexually abuse his child, the court held the conditions restricting the defendant’s access to children, including his own child, were over-broad. See Davis, 452 F.3d at 994-96. Employing the same rationale, the Voelker court, observing there was evidence the defendant may be capable of exploiting his child, remanded the case so the district court could define the scope of the condition in question and supplement the record to show a compelling need for the condition. See Voelker, 489 F.3d at 153-55. Finding there was no evidence the defendant would be a danger to his own children, the Loy court ruled the challenged condition should be construed to apply only to children other than his own. See Loy, 237 F.3d at 269-70. Given the fundamental nature of the right to family integrity, the court concluded the district court would have provided a clearer indication if it intended the condition to operate otherwise. See id. at 270. We agree with these courts that special conditions that interfere with the right of familial association can do so only in compelling circumstances. While we recognize Smith has demonstrated a willingness and ability to prey on vulnerable individuals, the record does not unambiguously support a finding that Smith is a danger to his own child or minor siblings. The district court should clarify the scope of the special conditions as to them. As to other children, the district court appropriately balanced the liberty interests at stake. The behavior for which Smith was convicted — demonstrating his capacity to prey on essentially incapacitated young women — warrants significant" }, { "docid": "23015288", "title": "", "text": "to the Probation Office to allow any such contacts while providing no guidance whatsoever for the exercise of that discretion. Thus, Voelker’s Probation Officer becomes the sole authority for deciding if Voelker will ever have unsupervised contact with any minor, including his own children, for the rest of his life. This is the very kind of unbridled delegation of authority that we struck down in Loy II. See 237 F.3d at 266. There, we stated: “[T]he sentencing court may not wholesaledly ‘abdicate[ ] its juridical responsibility’ for setting the conditions of release.” Id. (quoting United States v. Mohammad, 53 F.3d 1426, 1438 (7th Cir.1995)). Even though the record contains evidence that supports a conclusion that Voelker may be capable of exploiting his own children, it is not clear to us that the District Court intended this lifetime ban on association with minors to extend to his own children. In Loy II, we resolved the profound legal issues that arose from a three year ban on association with minors by assuming that the court did not intend it to apply to the defendant’s own family. We explained: “Given the severe intrusion on Loy’s family life that would otherwise result, we believe that, absent a clearer sign from the District Court, the condition should be construed to apply only to other people’s children, and not to Loy’s own.” Loy II, 237 F.3d at 270. Although we resolved the ambiguity in Loy by supplying a presumption that ameliorated the problems that would have arisen had the ban included the defendant’s own family, we cannot do that here. Given this record, the court may have intended the condition to extend to Voelker’s own family. On remand, the court will have yet another opportunity to clarify the intended scope of this restriction and to provide sufficient guidance for the exercise of the Probation Officer’s discretion if a ban on associating with minors is reimposed. We do not now express any opinion about the legality of a condition that so drastically interferes with one’s right to associate with one’s own children. We do, however, caution that" }, { "docid": "20033655", "title": "", "text": "were imposed in error. However, Thielemann registered no objection to these conditions in the District Court. We accordingly review for plain error. See supra note 9. We hold that the District Court did not err when it required Thielemann to comply with these conditions. A. “Sexually Explicit” Material Restriction District courts generally must make factual findings to justify special terms of supervised release. Voelker, 489 F.3d at 144. If a court does not explain its reasons, “we may nevertheless affirm the condition if we can ‘ascertain any viable basis for the ... restriction in the record before the District Court ... on our own.’ ” Id. (citation omitted). While the District Court did not specifically explain its rationale in barring Thielemann from sexually explicit materials, the record clearly shows that the District Court’s purpose was to rehabilitate Thielemann, to protect children, and to deter future criminal activity. We have held that “District Court[s] could, perfectly consonant with the Constitution, restrict [a defendant’s] access to sexually oriented materials” if, like any other restriction, the term had a clear nexus to the goals of supervised release. United States v. Loy, 237 F.3d 251, 267 (3d Cir.2001). However, “there are First Amendment implications for a ban that extends to explicit material involving adults.” Voelker, 489 F.3d at 151. When a ban restricts access to material protected by the First Amendment, courts must balance the § 3553(a) considerations “against the serious First Amendment concerns endemic in such a restriction.” Id,. It is evident that the District Court’s restriction in this case would protect children from the predatory conduct of Thielemann and thus could contribute to Thielemann’s rehabilitation. Accordingly, the purposes served by the Special Condition far outweigh any Constitutional concerns raised in Loy and Voelker. In Loy, we rejected a condition which prohibited Loy from possessing pornography. Loy had pleaded guilty to receipt of child pornography. His terms of supervised release included a provision prohibiting him from possessing “all forms of pornography, including legal adult pornography.” Loy, 237 F.3d at 253. We noted that restrictions on sexual materials were generally permissible because “almost any" }, { "docid": "7377512", "title": "", "text": "renders a five-year restriction excessive. The scope of the restriction is also sufficiently narrow. Rather than restricting all computer use, the District Court limited only Maurer’s access to the internet, with exceptions to be provided by the Probation Office. Once released, Maurer may still use a computer for daily tasks. Thus, this restriction does not amount to “cybernetic banishment,” as did the condition in Voelker, 489 F.3d at 148, and it is more akin to the sufficiently narrow internet-only conditions we af firmed in Crandon and Thielemann. See 575 F.3d at 278-79, 173 F.3d at 127-128. Furthermore, the District Court expressly stated at sentencing that disputes regarding the applicability of the restrictions would be “decided by the court.” (J.A. at 72.) The restriction on internet use therefore shares a nexus to the goals of deterrence and protection of the public and does not involve a greater deprivation of liberty than is necessary in this case. Accordingly, the District Court did not plainly err in imposing this condition. B.2. Special Condition Restricting Association with Minors We also reject Maurer’s contention that the restriction on contact with minors is overly broad and amounts to an excessive delegation of authority to the Office of Probation. As discussed above, in the course of a conversation with “Nate” wherein Maurer ultimately suggested meeting for a sexual encounter, Maurer stated that he had a sexual interest in minors. Moreover, his substantial collection of child pornography contained a number of images that depicted sadistic and violent sexual abuse of prepubescent children. These facts, taken together, suggest that Maurer is a risk to children, and therefore the District Court did not plainly err in restricting his contact with minors, regardless of the fact that he was convicted only for possession of child pornography. See United, States v. Loy, 237 F.3d 251, 254, 268 (3d Cir.2001) (upholding a special condition restricting contact with minors where defendant was convicted solely of possessing child pornography, but where other facts in the record indicated that defendant was a danger to children). Given the risk Maurer presents, we believe that this special condition" }, { "docid": "23287125", "title": "", "text": "focus on whether the defendant used a computer or the internet to solicit or otherwise personally endanger children. Assessing these two factors, in comparison to the conditions imposed in our prior cases, the limitation in Condition 4 on Miller’s access to the internet is overly restrictive while Condition 7, providing for computer monitoring, is narrowly tailored and reasonable. With respect to the scope of Condition 4, for the rest of his life, Miller is confined to using a computer that does not have online access unless he receives approval from his probation officer to use the internet and other computer networks. The substantive scope of this special condition is nearly identical to the computer restriction upheld in Thielem ann. It is less restrictive than the conditions that we rejected in Freeman and Voelker. Yet, while the substantive scope of Miller’s condition may be less restrictive than the conditions that we previously struck down, it applies for the rest of his life. Crandon, Freeman, and Thielemann involved three-year, five-year, and ten-year terms, respectively. 173 F.3d at 125; 316 F.3d at 389; 575 F.3d at 270. In Voelker, however, the offender faced a lifetime term, and this duration was an important consideration in our conclusion that the condition — “lifetime cybernetic banishment” — was too restrictive. 489 F.3d at 148. With respect to the criminal conduct at issue, both Freeman and Voelker distinguished Crandon on the ground that the defendant in that case had used the internet to actively contact a child and solicit sexual contact. In Thielemann, the defendant similarly made use of the internet to “facilitate, entice, and encourage the real-time molestation of a child.” 575 F.3d at 278. Crandon and Thielemann received, respectively, three-year and ten-year terms of supervised release. Miller has not used the internet in these ways, and yet he still faces a lifetime term. While we do not intend to minimize the serious harm caused by possession of child pornography, Miller’s use of the internet poses a danger that differs in both kind and degree from the conduct involved in Crandon and Thielemann. In Freeman, we" }, { "docid": "20033654", "title": "", "text": "3553(a) factors, it is clear that the court took them all into consideration. Furthermore, the District Court issued a within-Guidelines sentence falling into the range of those considered reasonable. See United States v. Hoffecker, 530 F.3d 137, 204 (3d Cir.2008) (“Although we do not deem a within-Guidelines sentence presumptively reasonable, it is ‘more likely to be reasonable than one that lies outside the advisory guidelines range.’ Cooper, 437 F.3d at 331.”). The District Court did not abuse its discretion. IV. District courts may impose special conditions of supervised release, but such conditions must be “reasonably related to the factors set forth in [§ 3553(a)]” and must “involve[] no greater deprivation of liberty than is reasonably necessary” to deter future crime, protect the public, and rehabilitate the defendant. 18 U.S.C. § 3583(d)(l)-(2); Voelker, 489 F.3d at 144 (requiring some evidence of a tangible relationship between the terms of supervised release and the offense or the history of the defendant). On appeal, Thielemann claims that two special conditions (restricting his access to computers and sexually explicit material) were imposed in error. However, Thielemann registered no objection to these conditions in the District Court. We accordingly review for plain error. See supra note 9. We hold that the District Court did not err when it required Thielemann to comply with these conditions. A. “Sexually Explicit” Material Restriction District courts generally must make factual findings to justify special terms of supervised release. Voelker, 489 F.3d at 144. If a court does not explain its reasons, “we may nevertheless affirm the condition if we can ‘ascertain any viable basis for the ... restriction in the record before the District Court ... on our own.’ ” Id. (citation omitted). While the District Court did not specifically explain its rationale in barring Thielemann from sexually explicit materials, the record clearly shows that the District Court’s purpose was to rehabilitate Thielemann, to protect children, and to deter future criminal activity. We have held that “District Court[s] could, perfectly consonant with the Constitution, restrict [a defendant’s] access to sexually oriented materials” if, like any other restriction, the term had" }, { "docid": "20033667", "title": "", "text": "would be an additional deterrent to Thielemann’s sexual arousal and sexual excitement, as it would preclude him from including children in his future sexual experiences. Otherwise, exposure to adult sexually explicit material might very well lead Thielemann to encourage his male associates either to initiate or to continue their abuse of children. In identifying this nexus between restriction and goals as required by Voelker, the Government expressed its fears, which we share. Our approval of the Special Condition which precludes Thielemann from viewing and possessing sexually explicit material was adverted to by the Government at oral argument. We recite the relevant portions of that argument: And, so the risk is this: Do we let this man-do we let this man look at adult pornography which presumably is going to exercise his sexual libido? Do we do that knowing that this man’s history is through a long period of time, with many men, the defendant intends to gratify that sexual interest in adult men with the currency which is child pornography. And I believe what the District Court did in this case, and indicating that the defendant can not have this sexually explicit conduct, is to guard against the possibility that the public has to be protected to [e]nsure that this will not happen again. Because this is a pervasive problem that this defendant had. It was not an isolated episode. And, the other aspect of this is that the population at risk ... when we say protection of the public, the specific population at risk are the children. So that if the District Court Judge permits the defendant to have access to sexual and explicit material, this sexual explicit material arouses a pattern in the defendant to repeat this behavior. The population at risk, indeed, are children. That’s a risk I submit that the Court reasonably did not take. Tr. of Oral Argument at 14. We hold that there is a significant nexus between restricting Thielemann from access to adult “sexually explicit” material and the goals of supervised release, and that the restriction here is not overbroad or vague considering" }, { "docid": "23287122", "title": "", "text": "websites and images, then the district court might impose a broader restriction on his internet access. Id. Most recently, in United States v. Thielemann, 575 F.3d 265, 278 (3d Cir.2009), we upheld a computer restriction as “not disproportionate when viewed in the context of Thielemann’s conduct.” On his computer, Thielemann possessed several hundred pornographic images of children. Id. at 268. The computer also contained logs of online “chats” with Phillips, an individual with whom Thielemann had a sexual relationship. Id. During one of these chats, Thielemann encouraged Phillips to have sexual contact with an eight-year-old girl. Id. Thielemann pled guilty to receipt of child pornography; as part of his plea agreement, Thielemann admitted to the following conduct: [H]e engaged in chats with Phillips, and ... during a chat, Phillips had on his lap a minor, visible to the defendant, and at the defendant’s encouragement and inducement [Phillips] did simulate masturbation of the minor, and did pose the minor in order to effect the_ lascivious exhibition of the minor’s pubic area. Id. at 269 (internal quotation marks & citation omitted). Thielemann was sentenced to 240 months’ imprisonment and a ten-year term of supervised release. Id. at 270. Pursuant to one of the special conditions of supervised release, Thielemann was prohibited from “own[ing] or operating] a personal computer with [internet access in a home or at any other location, including employment, without prior written approval of the Probation Office.... ” Id. (internal quotation marks omitted) (alterations in original). He did not object to this special condition before the district court, subjecting it to plain error review on appeal. Id. Comparing the case to Voelker and Crandon, we concluded that “[t]he terms of Thielemann’s supervised release are more analogous to those we upheld in Crandon.” Id. at 278. As Thielemann could use a personal computer as long as it was not connected to the internet and could seek permission from the Probation Office to use the internet during his ten-year restriction, “[t]he parameters of the computer restriction ... are far less troubling than those in Voelker.” Id. We further stressed that “Thielemann did" }, { "docid": "587295", "title": "", "text": "prior written consent of his probation officer.” 422 F.3d at 734. The defendant argued that the restriction “bars him from much of the common space of the community and ... restricts him from all residences, whether or not minor children live there.” Id. This court concluded that the movement restriction was “sensible” and “not overbroad” by applying a reasonableness requirement— the defendant’s presence was prohibited “only at those residences, parks ... where children under the age of 18 actually congregate.” Id., quoting Ristine, 335 F.3d at 696-97. In a separate line of “contact” cases, this court has approved special conditions that restrict the defendant “from contact with children under the age of 18 unless the probation officer has given prior written permission.” Heidebur, 417 F.3d at 1005-06 (upholding condition requiring prior approval for contact with minors where the defendant was convicted of sexual exploitation); see also Mark, 425 F.3d at 507-08 (“Requiring [the defendant] to obtain prior approval is a reasonable mechanism to promote compliance and to ensure that [his] contact with minors is reasonably limited to appropriate situations.”). In the Davis case, this court struck down a condition barring the defendant from any “unsupervised” contact with minors as applied to his child. 452 F.3d at 994-95. There is mixed law on this issue in other circuits. See United States v. Voelker, 489 F.3d 139, 154-55 (3d Cir.2007) (reversing, on plain error review, a condition prohibiting defendant from associating with minors without the presence of an adult where “the ban included the defendant’s own family”); United States v. Smyth, 213 Fed.Appx. 102, 106 (3d Cir.2007) (unpublished) (striking down condition prohibiting the defendant from contact with children without a supervisor as “overbroad and vague”). But see United States v. Rodriguez, 558 F.3d 408, 417-18 (5th Cir.2009) (distinguishing Davis and upholding a condition prohibiting the defendant from associating with minors, including his own children); United States v. Loy, 237 F.3d 251, 267-70 (3d Cir.2001) (affirming condition prohibiting unsupervised contact with minors as applied to persons other than the defendant’s family); United States v. Proctor, 281 Fed.Appx. 72, 74-74 (3d Cir.2008) (unpublished) (upholding," }, { "docid": "23508994", "title": "", "text": "was “the antithesis of a narrowly tailored sanction, a greater deprivation of liberty than [was] reasonably necessary, and not reasonably related to the factors set forth in ... § 3583.” Miller, 594 F.3d at 185 (quoting Voelker, 489 F.3d at 144-45) (internal quotation marks omitted). Second, moving along the spectrum of restrictiveness, a complete ban on internet access, except with prior approval of probation, may be permissibly imposed temporarily on those offenders who have used or have clearly demonstrated a willingness to use the internet as a direct instrument of physical harm. For instance, in Thielemann, Crandon, and Maurer the defendants used or demonstrated a willingness to use the internet to solicit, communicate with, or abuse a minor in conjunction with child porn offenses. In Thielemann, the defendant encouraged his online chat companion to abuse sexually a minor girl in front of a webcam. Moreover, Thielemann had several persons involved, and was the hub of the offensive conduct. See 575 F.3d at 268, 269 n. 4. Similarly, in Crandon the defendant used the internet to communicate, arrange to meet, and have sexual relations with a minor girl. In Maurer, the defendant expressed an interest in sexual contact with minors while using the internet in the attempt to arrange a sexual encounter. Thielemann and Crandon both used the internet to encourage or otherwise initiate the sexual abuse of a minor, as distinguished from solely accessing pornographic sites. Maurer clearly demonstrated a willingness to use the internet for these same purposes. We upheld, in their cases, conditions that proscribed all internet access for ten, three, and five years, respectively. Finally, where the child porn offense does not involve a “live” component (that is, direct involvement or communication, including the attempt or demonstrated willingness to have direct involvement or communication, with a putative victim via the internet), the district courts should consider whether a tailored internet limitation is feasible. In Freeman, for example, the defendant pled to possessing and receiving child porn. There, as here, he had also molested children in the past. But absent the direct link between the internet and the" }, { "docid": "20033676", "title": "", "text": "following the defendant’s sentencing. PSR 10. Lee Blotzer was sentence[d] to 155 months incarceration on March 10, 2008, for distribution of child pornography. PSR 9. The remaining six defendants were sentenced to between 22 months and 60 months incarceration, with five of the defendants being sentenced for possession of child pornography, which carries a ten year maximum sentence. PSR 11-15. . Thielemann also contends that the District Court erred in increasing his sentence based on U.S.S.G. § 2G2.1(b)(6)(B), which provides for a two-point sentencing enhancement when the persuasion, inducement, enticement, coercion, or solicitation of a minor for sexually explicit conduct is achieved by use of a computer. He claims that because nearly all child pornography is transmitted over the internet, this sentence enhancement for computer usage is redundant. Thielemann offers neither facts nor law to support his argument. Moreover, sentencing courts may disagree with the Guidelines based on policy, Kimbrough v. United States, 552 U.S. 85, 128 S.Ct. 558, 570, 575, 169 L.Ed.2d 481 (2007), Spears v. United States, - U.S. -, -, 129 S.Ct. 840, 843, 172 L.Ed.2d 596 (2009), but the District Court in this case did not. Because Thielemann’s sentence was otherwise reasonable, no justification exists for reversing the District Court because of its reliance on a currently valid Guideline. . A ban on sexually explicit material involving children is, of course, reasonable, but unnecessary considering child pornography is already illegal \"and the statutorily mandated conditions of supervised release require [defendants] to comply with\" child pornography laws. United States v. Voelker, 489 F.3d 139, 151 (3d Cir.2007). . Protected materials include \"nonobscene, sexually explicit materials involving persons over the age of 17.\" United States v. X-Citement Video, Inc., 513 U.S. 64, 72, 115 S.Ct. 464, 130 L.Ed.2d 372 (1994). . We recognize that a term of supervised release restricting access to adult sexually oriented materials must be \"narrowly tailored,” i.e., that the restriction must result in a benefit to public safety. United States v. Loy, 237 F.3d 251, 266 (3d Cir.2001). . The \"sexually explicit” materials condition in Voelker is nearly identical to the analogous Special Condition" } ]

[ { "docid": "22531205", "title": "", "text": "protections through its contacts in the State; whether the defendant has contacts elsewhere is immaterial. Regrettably, these errors are unforced. The Court can and should decide this case on the far simpler ground that, no matter how extensive Daimler's contacts with California, that State's exercise of jurisdiction would be unreasonable given that the case involves foreign plaintiffs suing a foreign defendant based on foreign conduct, and given that a more appropriate forum is available. Because I would reverse the judgment below on this ground, I concur in the judgment only. I I begin with the point on which the majority and I agree: The Ninth Circuit's decision should be reversed. Our personal jurisdiction precedents call for a two-part analysis. The contacts prong asks whether the defendant has sufficient contacts with the forum State to support personal jurisdiction; the reasonableness prong asks whether the exercise of jurisdiction would be unreasonable under the circumstances. Burger King Corp. v. Rudzewicz, 471 U.S. 462, 475-478, 105 S.Ct. 2174, 85 L.Ed.2d 528 (1985). As the majority points out, all of the cases in which we have applied the reasonableness prong have involved specific as opposed to general jurisdiction. Ante, at 762, n. 20. Whether the reasonableness prong should apply in the general jurisdiction context is therefore a question we have never decided,1 and it is one on which I can appreciate the arguments on both sides. But it would be imprudent to decide that question in this case given that respondents have failed to argue against the application of the reasonableness prong during the entire 8-year history of this litigation. See Brief for Respondents 11, 12, 13, 16 (conceding application of the reasonableness inquiry); Plaintiffs' Opposition to Defendant's Motion to Quash Service of Process and to Dismiss for Lack of Personal Jurisdiction in No. 04-00194-RMW (ND Cal., May 16, 2005), pp. 14-23 (same). As a result, I would decide this case under the reasonableness prong without foreclosing future consideration of whether that prong should be limited to the specific jurisdiction context.2 We identified the factors that bear on reasonableness in Asahi Metal Industry Co. v." } ]

[ { "docid": "17384323", "title": "", "text": "of Ohio. The suit alleged that PartyGaming, through its anti-collusion policy, affirmatively represented that collusion and multi-account players did not occur on its website. The suit also claimed that PartyGaming affirmatively represented that it did not encourage gambling by minors or gambling addicts. Plaintiffs contended that these representations were false and, as such, violated Ohio consumer protection laws, breached the agreement, and negligently, recklessly, or intentionally induced plaintiffs to join the website. Plaintiffs sought certification of a class of all similarly situated individuals, which the district court provisionally certified, consisting of all persons in the state of Ohio who paid a registration fee on PartyGaming’s website. PartyGaming failed to respond to plaintiffs’ first amended complaint, and default was entered in January 2008. PartyGam-ing then moved to set aside default and argued that the suit should be brought in Gibraltar due to the forum selection clause. It subsequently filed a motion to dismiss plaintiffs’ third amended complaint. The motion claimed improper venue under Federal Rules of Civil Procedure (“FRCP”) 12(b)(3), due to the Gibraltar forum selection clause, and failure to state a claim under FRCP 12(b)(6), due to plaintiffs’ failure to plead the elements of the causes of action. In ruling on the motion, the district court found the Gibraltar forum selection clause valid, denied Party-Gaming’s motions as moot, and dismissed the action sua sponte for forum non conve-niens. Plaintiffs filed this timely appeal and seek a reversal of the district court’s dismissal. II. To support its dismissal for forum non conveniens, the district court cited to the Gibraltar forum selection clause. Thus, as a threshold matter, we must determine whether the clause should be enforced. We review the enforceability of a forum selection clause de novo. Preferred Capital, Inc. v. Assocs. of Urology, 453 F.3d 718, 721 (6th Cir.2006). In deciding this matter, we confront a choice-of-law issue of whether Ohio or federal law governs the inquiry into the enforceability of a forum selection clause when a federal court exercises diversity jurisdiction. 1. Applicable Law To resolve this issue, we first look to the binding law of the Supreme Court" }, { "docid": "992472", "title": "", "text": "medical treatment. B. The Florida State Court Proceedings After returning to the United States, the Bestors, the Cohons, and the Esfelds filed separate personal injury actions against Costa in the state court in and for Miami-Dade County, Florida. Costa moved to dismiss the three lawsuits based on the doctrine oí forum non conve-niens, but the trial court denied the motion in each case. Costa filed an interlocutory appeal to challenge the denial of its motion in the Bestors’ case, but it chose not to file an appeal in either the Cohons’ case or the Esfelds’ ease. On appeal, Florida’s Third District Court of Appeal (the “Third District”) reversed the trial court, concluding that the Bestors’ case should be dismissed on forum non conve-niens grounds. See Pearl Cruises v. Bestor, 678 So.2d 372 (Fla.Dist.Ct.App.1996). The Third District ruled that Italy provided a more proper forum for the litigation, since Costa had consented to the jurisdiction of the Italian courts and had agreed to waive reliance on any statute of limitations. The Third District stated in conclusion that the Bestors were “free to bring suit in any other jurisdiction which [would] entertain it.” Id. at 373. In its ruling, the Third District relied on Kinney System, 674 So.2d at 93, in which the Florida Supreme Court adopted federal forum non conveniens law as the appropriate standard for Florida state courts. In the Bestors’ case, however, the Third District applied that standard in a manner different from how federal courts have applied it. Specifically, the Third District, in addressing the forum non conveniens issue, focused on Florida’s connection to and interest in the case, concluding that the Bestors’ lawsuit had “no meaningful relationship to Florida whatever” and that “Florida’s interests in [the] litigation [were] next to non-existent.” Bestor, 678 So.2d at 372. In contrast, federal courts, in the forum non conveniens context, do not focus on the connection between the case and a particular state, but rather on the connection of the case to the United States as a whole. See La Seguridad v. Transytur Line, 707 F.2d 1304, 1308 (11th Cir.1983) (focusing" }, { "docid": "20629994", "title": "", "text": "SIRVA and Allied Van Lines responsible for the damages from the improper disposal and ultimate loss of his personal property, which he alleges include original works of intellectual property that, together with his other personal belongings, exceed a value of $75,000. His amended complaint alleges that SIRVA and Allied Van Lines are liable to Deb as “joint ventur-ers.” (R. 27, pp. 3-4, Page ID 286-287) (Plaintiffs Supp. App. B003-B004). The district court granted the defendants’ motion to dismiss on June 6, 2014, based on the ground of forum non conve-niens, noting that both India and Canada offered appropriate alternative forums for the action. Deb appeals. II. A. The defendants filed their motion to dismiss pursuant to Federal Rule of Civil Procedure 12(b)(6) (failure to state a claim upon which relief can be granted), 12(b)(7) (failure to join a party), and 12(b)(3) (improper venue). Subsumed within this last category were the common law principles of forum non conveniens and abstention. The district court dismissed the case on the ground of forum non conveniens. As the Latin name suggests, the doctrine of forum non conveniens addresses the matter of convenience to the parties. As the Supreme Court explained, A federal court has discretion to dismiss a case on the ground of forum non con-veniens when an alternative forum has jurisdiction to hear the case, and trial in the chosen forum would establish oppressiveness and vexation to a defendant out of all proportion to plaintiffs convenience, or the chosen forum [is] inappropriate because of considerations affecting the court’s own administrative and legal problems. Sinochem Int’l Co. v. Malaysia Int’l Shipping Corp., 549 U.S. 422, 429, 127 S.Ct. 1184, 167 L.Ed.2d 15 (2007) (citing a long line of Supreme Court precedent) (internal citations omitted). Today, the doctrine applies in the federal courts only when the other jurisdiction is a foreign one. Stated more simply, a district court may dismiss a case on forum non conveniens grounds when it determines that there 'are “strong reasons for believing it should be litigated in the courts of another, normally a foreign, jurisdiction.” Fischer v. Magyar Allamvasutak Zrt.," }, { "docid": "23167592", "title": "", "text": "Millions of tourists travel to Caribbean resorts each year from Florida and elsewhere in the United States. Both Florida and the interstate judicial system have an interest in adjudicating disputes arising from injuries which occur at or as a result of these resorts, particularly when the injured are flown into Florida for medical treatment as a result. The Court finds that jurisdiction in Florida would comport with traditional notions of fair play and substantial justice. B. Forum Non Conveniens The Sun Defendants alternatively argue that, even if the Court determines that the exercise of jurisdiction comports with the Florida long-arm statute and the Constitution, the case should be dismissed for forum non conveniens. Fed.R.Civ.P. 12(b)(3). A dismissal under forum non conve-niens requires a minimal amount of evi-dentiary analysis by the district court, including a determination as to potential witnesses, costs, etc. See C.A. La Seguridad v. Transytur Line, 707 F.2d 1304, 1307 (11th Cir.1983). The district court did not reach the issue. The Court finds that there is insufficient evidence to rule upon the matter and, therefore, remands the issue to the district court to determine the facts supporting Defendants’ motion to dismiss for forum non conveniens. CONCLUSION We find that, for the purposes of jurisdiction, the activities of the Florida Subsidiaries may be imputed to the Sun Defendants under both the Florida long-arm statute and the Constitution. We find that the Defendants had continuous and systematic contacts with the forum state, both through their own actions and through those of the Florida Subsidiaries, sufficient to exercise jurisdiction in this matter. REVERSED and REMANDED. . It is undisputed that the district court had original subject matter jurisdiction through diversity of citizenship pursuant to 28 U.S.C. § 1332. The Plaintiffs are citizens of Utah and the Defendants are foreign Bahamian corporations. Defendants do not contest that the claims exceed $75,000.00. . The Meiers also brought claims against defendants Wedge Hotel Management (Bahamas), Ltd., and Paradise Grand Hotel Venture, Ltd. (collectively \"Sheraton Defendants”). Although the district court denied the Sheraton Defendants’ Motion to Dismiss for Lack of Personal Jurisdiction, the Plaintiffs requested" }, { "docid": "14411502", "title": "", "text": "to meet levels of emissions and discharges set by the MEM under Peruvian environmental laws enacted in 1993, and is subject to the jurisdiction of the courts of Peru. II. Proceedings Before the District Court A. Procedural History Plaintiffs commenced this action by filing a complaint on December 28, 2000. They filed an Amended Complaint on February 7, 2001. On March 5, 2001, SPCC filed a motion to dismiss pursuant to Fed. R.Civ.P. 12(b)(1) and 12(b)(6) for lack of subject matter jurisdiction and for failure to state a claim, arguing that plaintiffs failed to allege a violation of the law of nations. SPCC also moved to dismiss the Amended Complaint on the grounds of forum non conveniens and international comity, and moved, in the alternative, for summary judgment pursuant to Fed. R.Civ.P. 56. While these motions were pending, the District Court requested, and the parties provided, extensive supplemental briefing to apprise the Court fully of all relevant questions of customary international law and of the adequacy of the Peruvian forum. B. The District Court’s Opinion On July 16, 2002, the District Court filed a comprehensive and scholarly opinion in which it carefully analyzed plaintiffs’ claims and documentary evidence. The District Court held that plaintiffs had failed to state a claim under the ATCA because they had not pleaded a violation of any cognizable principle of customary international law. Flores, 253 F.Supp.2d at 525. The Court noted that it did not need to reach the question of forum non conve-niens because it had determined that it lacked subject matter jurisdiction, but it nonetheless concluded that, even if plaintiffs had pleaded a violation of customary international law, dismissal on the ground of forum non conveniens would have been appropriate. Id. at 544. In its analysis, the District Court discussed the requirements for a claim under the ATCA. It noted that “[t]he ATCA provides for federal court jurisdiction where a plaintiffs claim involves a violation of [i] a treaty of the United States or [ii] the law of nations, which consists of rules that ‘command the general assent of civilized nations.’ ” Id." }, { "docid": "10008254", "title": "", "text": "meet levels of emissions and discharges sét by the MEM under Peruvian environmental laws enacted in 1993, and is subject to the jurisdiction of the courts of Peru. II. Proceedings Before the District Court A. Procedural History Plaintiffs commenced this , action by filing a complaint on December 28, 2000, They filed an Amended Complaint on February 7, 2001. On March 5, 2001, SPCC filed a motion to dismiss pursuant to Fed. R.Civ.P. 12(b)(1) and 12(b)(6) for lack of subject1 matter jurisdiction and for failure to state ■ a claim, arguing that plaintiffs failed to allege a violation of the law of nations. SPCC also moved to dismiss the Amended Complaint on the grounds of forum non conveniens and international comity, and moved, in the alternative, for summary judgment pursuant to Fed. R.Civ.P. 56. While these motions were pending, the District Court requested, and the parties provided, extensive supplemental briefing to apprise the Court fully of all relevant questions of customary international, law and of the adequacy of the Peruvian forum. B. The District Court’s Opinion On July 16, 2002, the District Court filed a comprehensive and scholarly opinion in which it carefully analyzed plaintiffs’ claims and documentary evidence. The District Court held that plaintiffs had failed to state a claim' under the ATCA because they had not pleaded a violation of any cognizable principle of customary international- law. Flores, 253 F.Supp.2d at 525. The Court noted that it did not need to reach the question of forum non conve-niens because it had determined that it lacked subject matter jurisdiction, but it nonetheless concluded that, even if plaintiffs had pleaded a violation of customary international law,, dismissal on the ground of forum non conveniens would have been appropriate. Id. at 544. ■ In its analysis, the District Court discussed the requirements for a claim under the ATCA. It noted that “[t]he ATCA provides for federal court jurisdiction where a plaintiffs claim involves a violation of [i] a treaty of the United States or [ii] the law of nations, which consists of rules that ‘command the general assent of civilized nations.’" }, { "docid": "17975483", "title": "", "text": "any objections to such jurisdiction and venue, specifically including forum non conveniens. Accordingly, the Affiliates’ motion (joined by Coastal Corp. and Coastal Power) to dismiss on the grounds of forum non conveniens is denied. III. Plaintiffs Rule 11 Motion In connection with its opposition to the Affiliates’ Motion to Dismiss on the grounds of lack of personal jurisdiction and forum non conveniens, ESI filed a Notice of Cross-Motion seeking an order, pursuant to Fed.R.Civ.P. 11(b) and (c), imposing an appropriate sanction on the moving defendants and their attorneys. As set forth in its Memorandum of Law in Opposition to the Affiliates’ Motion to Dismiss, ESI argues that the Affiliates and their attorneys should be sanctioned under Fed.R.Civ.P. 11(b)(1), (2), (3) and (c) for the numerous misrepresentations made to this Court both in telephone conference and in the O’Toole and Vilanova affidavits submitted in support of their motions to dismiss, with respect to the Affiliates’ involvement and ownership interests in the Plant and the extent of their respective forum related activities. In connection with the Affiliates’ motion' (joined by Coastal Corp. and Coastal Power) on the ground of forum non conve-niens, ESI seeks sanctions against the movants and their attorneys under Fed. R.Civ.P. 11(b)(1), (2) and (3) for their failure to disclose, and attempt to prevent the disclosure of, the ownership and Trust related documents which, inter alia, contain the Forum Selection Clause. ESI further alleges that, in view of this Court’s prior decision on the matter, the forum non conveniens motion was frivolous and filed to harass ESI and Delasa, to cause unnecessary delay, and to increase the cost of this litigation. ESI’s Notice of Cross-Motion and Memorandum of Law, both dated February 17, 1999, were served on Coastal Corp., Coastal Power and the Affiliates by U.S. mail on February 17, 1999. The original documents were then filed with the Court and a courtesy copy of each was received in chambers on February 18,1999. The Affiliates oppose the imposition of sanctions on the ground that ESI failed to comply with the procedural prerequisites of Rule 11, namely: (1) that the" }, { "docid": "10527159", "title": "", "text": "is a negligence claim under the Uniform Rules of Collections, which the parties agreed would govern the transaction. Article I of the Uniform Rules imposes duties of good faith and reasonable care upon banks acting in such transactions. Interpane alleges that ANZ breached its duty of reasonable care in releasing the bills of lading to McDowell before discovering the nature of the special instruction. Count II alleges breach of contract. As the designated collecting bank, ANZ had a contractual duty to follow Interpane’s collection orders. Interpane alleges that ANZ breached this contractual duty by not obeying the special instruction, which it alleges required ANZ to endorse the bills of exchange as a guarantor before releasing the title documents to McDowell. Interpane claims damages in the amount of the face value of the promissory notes — a total of $79,208.68. Subject matter jurisdiction is based on diversity of citizenship in that Interpane is a “citizen[] of a State,” ANZ is a citizen of a “foreign state[ ]” and “the matter in controversy exceeds the sum or value of $50,000.” 28 U.S.C. § 1332(a)(2) (West Supp.1989). ANZ now moves to dismiss the case pursuant to Rules 12(b)(1) and 12(b)(3) of the Federal Rules of Civil Procedure. Under Rule 12(b)(1), ANZ argues that this court lacks subject matter jurisdiction over the case because the amount in controversy does not exceed the threshold $50,000. Under Rule 12(b)(3), ANZ alternatively asserts that venue is improper under the common law doctrine of forum non conveniens and this court should therefore decline to exercise jurisdiction over the case. DISCUSSION I. Subject Matter Jurisdiction Regardless of the outcome of the forum non conveniens issue, this court must first address ANZ’s challenge to the existence of subject matter jurisdiction. This is so even if we ultimately decline to exercise that jurisdiction in this case under the doctrine of forum non conveniens because, in order to decline jurisdiction, we must legitimately have it in the first place. As summarized by Professors Wright and Miller, “[t]he doctrine of forum non conve-niens does not come into play unless the court in which" }, { "docid": "14041229", "title": "", "text": "Sun Line Cruises, Inc., 67 F.3d 7, 10 (2d Cir.1995) (forum selection clause specifying Greece as sole jurisdiction in which claims could be brought against carrier); AVC Nederland B.V. v. Atrium Investment Partnership, 740 F.2d 148, 158 n. 16 (2d Cir.1984) (forum selection clause and choice-of-law clauses specifying Utrecht as sole jurisdiction and Dutch laws as applicable law); Tufts v. Corporation of Lloyd’s, No. 95-3480, 1996 WL 533639 (S.D.N.Y. Sept. 19, 1996) (Lloyd’s FS and COL clauses); Paribas Corp. v. Shelton Ranch Corp., 742 F.Supp. 86, 92-93 (S.D.N.Y.1990) (forum selection clause and choice-of-law clauses specifying New York as sole jurisdiction and New York law as applicable law). Therefore, to overcome the presumed validity of the FS and COL clauses, plaintiffs must plead specific fraudulent acts or statements by which defendants induced their consent to these clauses. As with all claims of fraud, plain tiffs’ claims must be pled with particularity under Rule 9(b) of the Federal Rules of Civil Procedure. See, e.g., Riley v. Kingsley Underwriting Agencies, Ltd., 969 F.2d 953, 960 (10th Cir.) (involving claim against Lloyd’s by Name alleging fraud with respect to COL clause), cert. denied, 506 U.S. 1021, 113 S.Ct. 658, 121 L.Ed.2d 584 (1992); Tufts, 1996 WL 533639, at *5. Defendants have brought their motion to dismiss for improper venue based on the FS and COL clauses under, inter alia, Rule 12(b)(3) and the doctrine of forum non conve-niens. There appears to be a split among the Courts of Appeal as to whether Rule 12(b)(3) is the proper vehicle to enforce a forum selection clause. Compare Lambert v. Kysar, 983 F.2d 1110, 1112 n. 1 (1st Cir.1993) (dismissal based on forum selection clause should be pursuant to Rule 12(b)(6) not Rule •12(b)(3)) with Commerce Consultants Int'l, Inc. v. Vetrerie Riunite, S.p.A., 867 F.2d 697, 698-99 (D.C.Cir.1989) (forum selection clause required dismissal pursuant to Rule 12(b)(3)). See also Riley, 969 F.2d at 956 (a “motion to dismiss based on a forum selection clause frequently is analyzed as a motion to dismiss for improper venue under [Rule] 12(b)(3)”); Haskel v. FPR Registry, Inc., 862 F.Supp. 909, 913-914" }, { "docid": "11784097", "title": "", "text": "oft-misquoted phrase, ‘You’d be better informed if instead of listening to what we say, you watch what we do.” The Oxford Dictionary of American Legal Quotations 254 (Fred R. Shapiro ed., 1993). What the Court did speaks louder than its lack of discussion about it. 8. The dissent concedes that the Supreme Court stated that forum non conve-niens “ ‘can never apply’ ” without jurisdiction, but then claims that courts may abstain from exercising their jurisdiction without first checking to see if they have it. In other words, our colleague believes that a court can rule on forum non conve-niens — which requires jurisdiction — just so long as it pretends that it has jurisdiction. But if a court suspects that it does not have personal jurisdiction over the parties, can it still dismiss for forum non conveniens? What if that court knows for certain that it does not have personal jurisdiction? We cannot tell how far the dissent’s principle of willing blindness goes, but we decline to allow courts to exercise this legal fiction when ruling on a doctrine that depends by definition on the courts’ having jurisdiction. 9. Last, the dissent claims that, while “it is important to determine whether the allegedly more convenient forum has jurisdiction to entertain the suit, there is no utility in, and no doctrinal necessity for, insisting that the present forum determine its own jurisdiction before dismissing.” But this is certainly incorrect. The D.C. Circuit admitted as much in Papandreou. Cf. 139 F.3d at 256 n. 6. It recognized that district courts without jurisdiction may not grant conditional dismissals on forum non conveniens grounds. Therefore, while distinct courts can “determine” whether the alternative forum has jurisdiction, they cannot make their decision stick under the dissent’s reasoning. The usefulness of and necessity for our holding are that it grants district courts plenary power to deal with the consequences of their forum non con-veniens dismissals. Not only can courts dismiss eases once their jurisdiction is established, but they can also enforce those dismissals and protect the non-moving parties in those cases. In sum, we appreciate" }, { "docid": "23291090", "title": "", "text": "year. The Ninth Circuit affirmed the dismissal in February of 1986. Villar v. Crowley Maritime Corp., 782 F.2d 1478 (9th Cir.1986). After the first dismissal, the Villars chose not to sue the defendants in the Philippines. Instead, the Villars filed an identical lawsuit in California state court. The California state court, like the California federal court, dismissed the Villars’ suit based on the doctrine of forum non conve-niens, and in December of 1990 the California Court of Appeals affirmed. The Villars still have not attempted to sue in the Philippines, Saudi Arabia, or Panama. II The persistent Villars have now sued the same defendants in Texas state court. One of the weary defendants, CMC, removed the proceeding to federal court based on diversity of citizenship. CMC is a Delaware corporation that is registered to do business in Texas and has its principal place of business in California. Although some of the defendant corporations are foreign corporations and, hence, not diverse with the Villars, CMC alleged that the Vil-lars fraudulently joined the foreign corporations to defeat diversity jurisdiction. CMC further argued that the district court should ignore the citizenship of the foreign corporations because there was no way the district court could constitutionally exercise in personam jurisdiction over those defendants. CMC then moved to dismiss the claims against it on grounds of forum non conveniens, and the foreign corporations moved to dismiss the action against them because the district court lacked personal jurisdiction over them. In response, the Villars moved to remand the proceeding to Texas state court because there was incomplete diversity of citizenship. The Villars urged the district court to consider their motion to remand before considering the defendants’ motions to dismiss. In case the district court rejected their primary argument, the Villars made three alternative arguments. First, the Villars argued that they had not fraudulently joined the foreign corporations. Second, they argued that the court does have personal jurisdiction over the foreign defendants because CMC, which is in Texas, was the alter ego of at least some of the foreign defendants. Thus, the district court should attribute CMC’s" }, { "docid": "7426720", "title": "", "text": "cancel the conference and informed MGM of its decision on September 13, 2001. (# 3, ¶ 13). The basis of the plaintiffs case is that MGM, through its employees, led WTC to believe that its deposit, minus any out of pocket costs, would be returned and that MGM would not seek further payment in accordance with the contract. (# 3, ¶¶ 14,16). Following closely on the heels of the complaint filed in Massachusetts by WTC, MGM initiated a suit against WTC in Nevada on March 4, 2001. (Supplemental Memorandum of Law in Opposition to Defendant’s Motion to Dismiss or Transfer Case, # 16 at 1, Ex. 1 at 2). Pursuant to the “first to file” rule, the Nevada Court ordered that MGM’s action be stayed pending a resolution of the jurisdictional issues by this Court. (# 16, Ex. 1 at 6). On April 12, 2002, MGM filed a Motion to Dismiss or Transfer Case (# 4) and a Memorandum of Law in Support of Defendant’s Motion to Dismiss or Transfer Case (# 5). MGM claims that this Court lacks personal jurisdiction as the facts of this case do not satisfy either the Massachusetts long-arm statute or the Constitutional Due Process requirements. MGM argues, alternatively, that the case should be dismissed on grounds of forum non conve-niens or transferred to the District of Nevada pursuant to 28 U.S.C. § 1404. (# 5, at 1). WTC filed a Memorandum of Law in Opposition to Defendant’s Motion to Dismiss or Transfer Case (# 8) on May 10, 2002, along with affidavits of Patrick Ka-reiva (# 9), Crissy Bardani (# 10) and Phyllis Case (# 11). In its memorandum in opposition, the plaintiff argues: that this Court has personal jurisdiction over the defendant; that there are no grounds for dismissal based on the doctrine of forum non conveniens; and, that it would not be proper to transfer the case pursuant to 28 U.S.C. § 1404(a). (# 8, at 1). The case was reassigned to the undersigned on October 2, 2002. For the reasons discussed below, I find that this Court does have jurisdiction over" }, { "docid": "17975429", "title": "", "text": "fiduciary duties; (9) the Ninth Claim, based on promissory estoppel, alleges that Tenneco and LCC should be estopped from denying Delasa’s 10% interest in the Project and the Plant’s income; (10) the Tenth Claim seeks damages for fraud against Tenneco and Coastal Power; and (11) the Twelfth Claim, against all cross-claim defendants, alleges unjust enrichment. Defendants Coastal Salvador, Coastal Nejapa, CTS, Nejapa Power and Crystal Power now move: (1) to dismiss ESI’s Second Amended Complaint pursuant to Fed.R.Civ.P. 12(b)(2) for lack of personal jurisdiction and pursuant to the doctrine of forum non conveniens or, in the alternative, pursuant to Fed.R.Civ.P. 12(e) for a more definite statement of the allegations against them; and (2) to dismiss Delasa’s Cross-Claim pursuant to Fed.R.Civ.P. 12(b)(2) for lack of personal jurisdiction and pursuant to the doctrine of forum non conveniens. ESI cross-moves for sanctions against Coastal Salvador, Coastal Nejapa, CTS, Nejapa Power, Crystal Power and their attorneys pursuant to Fed. R.Civ.P. 11(b) and (c). Defendant Coastal Power moves pursuant to Fed.R.Civ.P. 12(f), to strike the Second and Fourth Claims, allegations of conspiracy and additional parties named as defendants in ESI’s Second Amended Complaint. In addition, Tenneco moves to dismiss: (1) the Third, Fourth, Fifth, Sixth, Eighth and Eleventh Claims of ESI’s Second Anended Complaint pursuant to Fed. R.Civ.P. 12(b)(6); and (2) Delasa’s Cross-Claim it its entirety on abstention grounds or, in the alternative, the Second, Third and Fifth Claims of Delasa’s Cross-Claim pursuant to Fed.R.Civ.P. 12(b)(6) for failure to state a claim upon which relief may be granted. Next, LCC moves to dismiss the Twelfth Claim in ESI’s Second Amended Complaint pursuant to Fed.R.Civ.P. 9(b) and 12(b)(6) for failure to state a claim upon which relief may be granted. ESI has filed a cross-motion for leave to amend pursuant to Fed.R.Civ.P. 15(a) in the event that its Twelfth Claim is dismissed. Finally, Coastal Power and LCC move to dismiss the Seventh and Tenth Claims in Delasa’s Cross-Claim pursuant to Fed. R.Civ.P. 9(b) and 12(b)(6). DISCUSSION I. Personal Jurisdiction Plaintiff bears the burden of establishing this Court’s jurisdiction over the defendants. See Metro. Life Ins. Co." }, { "docid": "11065831", "title": "", "text": "joined because defendants have not conclusively shows that the releases Zermeno executed are invalid or that the claims against AeroMexico are time-barred. (Docket Entry No. 12, ¶¶ 6-7). Defendants have also moved to dismiss this case on the basis of forum non conve-niens, arguing that Mexico would be a more convenient and appropriate forum to litigate this case. Plaintiffs respond that there are significant connections between the United States and this case, making an American forum appropriate. Plaintiffs also argue that this court must decide the motion to remand before considering the motion to dismiss under forum non conve-niens; defendants dispute this contention. The order of deciding the motions must be decided first. II. The Order of Decision: The Motion to Remand or to Dismiss? A. The Criteria for Deciding Which Motion to Decide First The Supreme Court in Ruhrgas v. Marathon Oil Co., 526 U.S. 574, 578, 119 S.Ct. 1563, 1567, 143 L.Ed.2d 760 (1999) stated that threshold motions “in cases removed from state court to federal court ... [present] no unyielding jurisdictional hierarchy.” In Ruhrgas, the Court held that a district court could decide a challenge to personal jurisdiction over the parties before deciding whether it had subject matter jurisdiction over the case. Subject matter jurisdiction necessarily precludes a ruling on the merits, reasoned the Court, but that did not dictate the sequence of deciding the threshold issues. Id. at 584, 119 S.Ct. at 1570. “It is hardly novel for a federal court to choose among threshold grounds for denying audience to a case on the merits.” Id. at 585, 119 S.Ct. at 1570. The Court stated that if the personal jurisdiction issue presented no complex question, but the subject matter jurisdiction issue was complicated, district courts do not abuse their discretion by turning to the easier personal jurisdiction question before assuring that subject matter jurisdiction is present. Id. at 588, 119 S.Ct. at 1572. Courts both before and after Ruhrgas have dismissed cases on forum non conve-niens grounds before deciding challenges to subject matter jurisdiction. “[A] court that dismisses on ... non-merits grounds such as forum non" }, { "docid": "7526410", "title": "", "text": "On August 26, 1997, the defendants moved for an order dismissing the complaint under Fed.R.Civ.P. 12(b)(1), 12(b)(3) and 12(b)(6), or awarding the defendants summary judgment pursuant to Fed. R.Civ.P. 56. The defendants argued that the court lacked subject matter jurisdiction under the Alien Tort Claims Act, that diversity jurisdiction was barred by the local action doctrine, and that the district court should in any event abstain from hearing the case pursuant to principles of international comity as well as the act of state, local action and forum non conve-niens doctrines. They also argued that the plaintiffs failed to state a claim upon which relief can be granted, failed to join two indispensable parties, the Arab Republic of Egypt and Misr, and failed to file suit within the time required by the statute of limitations. The defendants filed with their motion a sworn declaration by an Egyptian lawyer, Ahmed G. Abou Ali, contradicting the allegations contained in the complaint. The defendants suggested in their brief in support of the motion that the district court should treat the motion to dismiss for failure to state a claim as a motion for summary judgment to the extent that the court relied on the Ali declaration. The plaintiffs responded by filing a cross-motion for partial summary judgment pursuant to Fed.R.Civ.P. 56(a) and 56(d) on the issue of liability. The plaintiffs also opposed the defendants’ motion and supported their own cross-motion with an affidavit by plaintiff Raphael Bigio and fifteen supporting exhibits. The district court (John S. Martin, Judge) granted the defendants’ motion and denied the plaintiffs’ cross-motion on the grounds that subject matter jurisdiction is not provided for by the Alien Tort Claims Act, and is otherwise barred by the act of state doctrine. See Bigio, 1998 WL 293990, at *2-*3, 1998 U.S. Dist. LEXIS 8295, at *4-* 11. With respect to the Alien Tort Claims Act, the district court held that: (1) “the wrong allegedly committed by” Coca-Cola was an ordinary tort and not a violation of international law; and (2) the complaint did not allege that the defendants acted “under color of" }, { "docid": "2277918", "title": "", "text": "OPINION MARSH, District Judge. Plaintiffs are fourteen foreign seamen who filed this action seeking to recover back wages and penalties pursuant to 46 U.S.C. § 10313 as well as compensatory and punitive damages for common law claims of blacklisting, outrageous conduct, breach of the duty of good faith and fair dealing, duress, intentional infliction of emotional distress, fraud and a newly asserted claim under the federal racketeering law, 18 U.S.C. § 1961, et seq. In addition, plaintiff Edwin Jose and his wife, Augustine Jose, seek to recover damages for a maritime personal injury under the Jones Act, 46 U.S.C.App. § 688 and general maritime law of the United States. Pursuant to my order of June 24,1991, defendants were ordered to file any additional dispositive motions and were directed to address the effect of plaintiffs’ most recent amendments on the issue of forum non conve-niens. Defendants now move to dismiss all of plaintiffs’ pendent claims under the doctrine of forum non conveniens. In addition, defendants seek dismissal of the Joses’ personal injury claims pursuant to Fed.R.Civ.P. 12(b)(6) and dismissal of plaintiffs’ claims under RICO pursuant to Fed. R.Civ.P. 12(b)(1) and 12(b)(6). For the reasons that follow, defendants’ motion to dismiss all pendent claims under the doctrine of forum non conveniens is granted, defendants’ motion to dismiss the Joses’ personal injury claims for failure to state a claim is denied as moot, and defendants’ motion to dismiss plaintiffs’ RICO claims for lack of subject matter jurisdiction and for failure to state a claim is granted. STANDARD Dismissal for failure to state a claim is proper only when it appears to a certainty that the plaintiff can prove no set of facts in support of his claim that would entitle him to relief. Gibson v. United States, 781 F.2d 1334, 1337 (9th Cir.1986), cert. denied, 479 U.S. 1054, 107 S.Ct. 928, 93 L.Ed.2d 979 (1987). For the purpose of the motion to dismiss, the complaint is liberally construed in favor of the plaintiff, and its allegations are taken as true. Schowengerdt v. General Dynamics Corp., 823 F.2d 1328, 1332 (9th Cir.1987). DISCUSSION The" }, { "docid": "13354039", "title": "", "text": "and opposing Karim's access to other courts, and then after the vessel was sold (and the company defunct), filed a motion to dismiss the limitation action on the basis of personal jurisdiction and forum non conve-niens. When the instant United States laws cease to be of use, a party cannot extinguish the proceedings. Shipowners cannot avail themselves of the benefits under United States laws, but then refuse to bear the possible burdens under those laws. B. Forum Non (Jonveniens \"The forum non conveniens deter-is committed to the sound discretion of the trial court. It may be reversed only when there has been a clear abuse of discretion,; where the court has considered all relevant public and private interest factors, and where its balancing of these factors is reasonable, its decision deserves substantial deference.\" Piper Aircraft Co. Reyno, 454 U.S. 235, 257, 102 S.Ct. 252, 70 L.Ed.2d 419 (1981) (emphasis omitted and added); see also McLennan v. Am. Eurocopter Corp., 245 F.3d 403, 423 (5th Cir.2001) (\"We review the district court's denial of a motion to dismiss for forum non conveniens for a clear abuse of discretion.\"). The \"doctrine of forum non conve-liens proceed[s] from [the] premise [that] [i]n rare circumstances, federal courts can relinquish their jurisdiction in favor of another forum.\" Quackenbush v. Allstate Ins. Co., 517 U.S. 706, 722, 116 S.Ct. 1712, 135 L.Ed.2d 1 (1996) (emphasis omitted). This doctrine enables a court to decline to exercise its jurisdiction if the moving party establishes that the convenience of the parties and the court and the interests of justice indicate that the case should be tried in another forum. Building upon its previous case in Gulf Oil Corp. v. Gilbert, 330 U.S. 501, 67 S.Ct. 839, 91 L.Ed. 1055 (1947), the Supreme Court set out the framework for analyzing forum non conve-niens in an international context in Piper Aircraft. First, \"the court must determine whether there exists an alternative forum.\" Piper Aircraft, 454 U.S. at 254 n. 22, 102 S.Ct. 252. Second, the court must determine which forum is best suited to the litigation. See id. at 255, 102 S.Ct." }, { "docid": "10527160", "title": "", "text": "value of $50,000.” 28 U.S.C. § 1332(a)(2) (West Supp.1989). ANZ now moves to dismiss the case pursuant to Rules 12(b)(1) and 12(b)(3) of the Federal Rules of Civil Procedure. Under Rule 12(b)(1), ANZ argues that this court lacks subject matter jurisdiction over the case because the amount in controversy does not exceed the threshold $50,000. Under Rule 12(b)(3), ANZ alternatively asserts that venue is improper under the common law doctrine of forum non conveniens and this court should therefore decline to exercise jurisdiction over the case. DISCUSSION I. Subject Matter Jurisdiction Regardless of the outcome of the forum non conveniens issue, this court must first address ANZ’s challenge to the existence of subject matter jurisdiction. This is so even if we ultimately decline to exercise that jurisdiction in this case under the doctrine of forum non conveniens because, in order to decline jurisdiction, we must legitimately have it in the first place. As summarized by Professors Wright and Miller, “[t]he doctrine of forum non conve-niens does not come into play unless the court in which the action was brought has both subject matter and personal jurisdiction and is a [statutorily] proper venue.” C. Wright, A. Miller & E. Cooper, Federal Practice and Procedure § 3828, at 287 (2d ed. 1986) [hereinafter Wright & Miller] (citations omitted). Nonetheless, we find subject matter jurisdiction to be proper in this case. It is well-established that the amount-in-controversy requirement is adequately met by a good faith allegation of the minimum requirement in the complaint. As stated by the Supreme Court in the seminal case of St. Paul Mercury Indemnity Co. v. Red Cab Co., 303 U.S. 283, 288, 58 S.Ct. 586, 590, 82 L.Ed. 845 (1938): “The rule governing dismissal for want of jurisdiction in cases brought in federal court, is that, unless the law gives a different rule, the sum claimed by the plaintiff controls if the claim is apparently made in good faith.” Although the defendant is not absolutely precluded from challenging the plaintiffs claim, in order to succeed, “[i]t must appear to a legal certainty that the claim is really for" }, { "docid": "13621108", "title": "", "text": "violations of federal mail and wire fraud statutes comprising elements of RICO violations. In addition, plaintiffs asserted pendent state law claims for breach of fiduciary duty, fraudulent trading, and negligent misrepresentation. The merits of these arguments are not before us. The nature of appellants contentions, however, is relevant to the issue of the degree of relief available, in Bermuda courts. In granting appellees’ motion to dismiss the complaint on the grounds of forum non conveniens, the district court found that Bermuda was an available and adequate forum, and that both private and public interest factors favored litigation in Bermuda. 683 F.Supp. 1064. Defendant Pinnacle had filed a motion to dismiss for lack of in personam jurisdiction over Pinnacle. The district court denied Pinnacle’s motion and its motion for reconsideration. The liquidator plaintiffs appeal the court’s dismissal of the case on forum non conve-niens grounds. Defendant Pinnacle cross-appeals the court’s denial of its motion to dismiss for lack of personal jurisdiction. In the view we take of this case, Pinnacle’s cross-appeal is moot. II. Jurisdiction was proper in the trial court based on 28 U.S.C. §§ 1331 & 1332. Jurisdiction on appeal is proper based on 28 U.S.C. § 1291. Appeal was timely filed under Rule 4(a), Fed.R.App.P. The trial court’s decision on the application of the forum non conveniens doctrine may be reversed only where there has been a clear abuse of discretion. Piper Aircraft v. Reyno, 454 U.S. 235, 257, 102 S.Ct. 252, 266, 70 L.Ed.2d 419 (1981); In re Air Crash Disaster Near New Orleans, Louisiana on July 9, 1982, 821 F.2d 1147 (5th Cir.1987), vacated and remanded on other grounds sub nom. Pan American World Airways, Inc. v. Lopez, — U.S. -, 109 S.Ct. 1928, 104 L.Ed.2d 400 (1989). III. Our analysis begins with the balancing test set forth in Gulf Oil Corp. v. Gilbert, 330 U.S. 501, 67 S.Ct. 839, 91 L.Ed. 1055 (1947), and its companion case, Roster v. Lumbermens Mutual Casualty Co., 330 U.S. 518, 67 S.Ct. 828, 91 L.Ed. 1067 (1947). Although “a plaintiff’s choice of forum should rarely be disturbed,” Piper Aircraft" }, { "docid": "18068279", "title": "", "text": "on July 26. On August 16, Bioriginal moved to dismiss, arguing that the court lacked personal jurisdiction over Bioriginal, that a forum non conve-niens dismissal was appropriate in favor of Saskatchewan court, and that Downer’s 93A claim should be dismissed for failure to state a claim. The district court allowed the motion to dismiss for lack of jurisdiction under Rule 12(b)(2), did not reach the forum non con-veniens issue, and denied as moot the 12(b)(6) motion to dismiss the 93A claim. This appeal followed. II. Where, as here, a district court dismisses a case for lack of personal jurisdiction based on the prima facie record, rather than after an evidentiary hearing or factual findings, our review is de novo. E.g., Phillips v. Prairie Eye Ctr., 530 F.3d 22, 26 (1st Cir.2008). In reviewing the facts, we take the plaintiffs evidentiary proffers as true and construe them in the light most favorable to the plaintiffs claim, and we also consider uncontradicted facts proffered by the defendant. Daynard v. Ness, Motley, Loadholt, Richardson, & Poole, P.A., 290 F.3d 42, 51 (1st Cir.2002). To establish personal jurisdiction in a diversity case, a plaintiff must satisfy both the forum state’s long-arm statute and the Due Process Clause of the Fourteenth Amendment. Ticketmaster-New York, Inc. v. Alioto, 26 F.3d 201, 204 (1st Cir.1994). The district court and the parties each proceed directly to the constitutional analysis, and we will do so as well. Downer asserts only that Massachusetts has specific in personam jurisdiction over Bioriginal, not general jurisdiction. That is, the jurisdictional basis for Downer’s suit arises from and is limited to Bioriginal’s suit-related conduct. See Walden v. Fiore, - U.S. -, 134 S.Ct. 1115, 1121, 188 L.Ed.2d 12 (2014). To evaluate whether Bioriginal’s suit-related conduct creates the necessary minimum contacts with Massachusetts, courts consider (1) whether the claim “directly arise[s] out of, or relate[s] to, the defendant’s forum state activities;” (2) whether the defendant’s instate contacts “represent a purposeful availment of the privilege of conducting activities in the forum state, thereby invoking the benefits and protections of that state’s laws and making the defendant’s" } ]

[ { "docid": "18769149", "title": "", "text": "documents are illusory, hyper-technical, and possibly relevant only in law review articles. Beneficial also argues that our decision in In re Guilbert, 165 B.R. 88 (Bankr.D.R.I. 1994), militates in favor of following Nobel-man here. In that case we acknowledged the purpose of § 1322(b)(2) as protecting creditors whose claims are secured only by a lien on the debtor’s home, and in doing so we performed our duty to follow Nobelman, where it is controlling. The creditor’s claim in Guilbert was clearly partially secured— quite the opposite from what Beneficial has in this case, i.e. a totally unsecured claim which provided no value to the creditor’s junior lien, and based on that distinction neither Nobelman nor Guilbert are applicable in the instant case. Prior to Nobelman, this Court had ruled that a Chapter 13 debtor may avoid a wholly unsecured second mortgage on the debtor’s principal residence. See In re Cardinale, 142 B.R. 42 (Bankr.D.R.I.1992). Immediately in the wake of Nobelman, we prematurely assumed that this case had been overruled. History has shown that assumption to be incorrect, however, in that a number of other courts facing this issue have concluded that a Chapter 13 debtor may indeed strip off a wholly unsecured second mortgagee on the debtor’s principal residence. In re Sette, 164 B.R. 453, 456 (Bankr.E.D.N.Y.1994); In re Williams, 161 B.R. 27 (Bankr.E.D.Ky.1993); In re Moncrief, 163 B.R. 492 (Bankr.E.D.Ky.1993); In re Homes, 160 B.R. 709 (Bankr. D.Conn.1993) (Chapter 13 plan could modify rights of mortgagee whose claim was wholly unsecured); In re Plouffe, 157 B.R. 198 (Bankr.D.Conn.1993) (a literal reading of § 1322(b)(2) does exclude a mortgagee whose secured interest in the homestead is zero). In In re Moncrief, Judge Joe Lee held that § 1322(b)(2) “does not preclude modification by a Chapter 13 plan of the ‘rights’ of holders of unsecured claims. It does restrict modification of the ‘rights’ of holders of secured claims secured only by a security interest in real property that is the debtor’s principal residence.” Therefore, to escape modification, a claim must be secured to some extent by a security interest in real" } ]

[ { "docid": "22580038", "title": "", "text": "entire lien is removed, as opposed to a lien \"strip down”. In the latter instance, a partially secured lien is bifurcated and only the unsecured portion is removed, or \"stripped down”. In re Woodhouse, 172 B.R. 1, n. 1 (Bankr.D.R.I.1994). .Thrift elected not to oppose the relief sought by Debtors. . (b) Subject to subsections (a) and (c) of this section, the plan may— (2) modify the rights of holders of secured claims, other than a claim secured only by a security interest in real property that is the debtor’s principal residence, or of holders of unsecured claims, or leave unaffected the rights of holders of any class of claims. 11 U.S.C. § 1322(b)(2). . (a) An allowed claim of a creditor secured by a lien on property in which the estate has an interest, or that is subject to setoff under section 553 of this title, is a secured claim to the extent of the value of such creditor's interest in the estate's interest in such property, or to the extent of the amount subject to setoff, as the case may be, and is an unsecured claim to the extent that the value of such creditor’s interest or the amount so subject to setoff is less than the amount of such allowed claim. Such value shall be determined in light of the purpose of the valuation and of the proposed disposition or use of such property, and in conjunction with any hearing on such disposition or use or on a plan affecting such creditor's interest. 11 U.S.C. § 506(a). . In re Hornes, 160 B.R. 709 (Bankr.D.Conn.1993); Matter of Plouffe, 157 B.R. 198 (Bankr.D.Conn.1993); In re Lee, 161 B.R. 271 (Bankr.W.D.Okla.1993); In re Moncrief, 163 B.R. 492 (Bankr.E.D.Ky.1993); In re Kidd, 161 B.R. 769 (Bankr.E.D.N.C.1993); In re Williams, 161 B.R. 27 (Bankr.E.D.Ky.1993). . See also In re Hornes, 160 B.R. at 716, In re Lee, 161 B.R. at 272-73; In re Moncrief, 163 B.R. at 494; In re Kidd, 161 B.R. at 770-71." }, { "docid": "15164127", "title": "", "text": "(S.D.Ohio 1995) (same); Wright v. Commercial Credit Corp., 178 B.R. 703 (E.D.Va.1995); In re Cerminaro, 220 B.R. 518 (Bankr.N.D.N.Y.1998); In re Cervelli, 213 B.R. 900 (Bankr.D.N.J.1997); In re Scheuer, 213 B.R. 415 (Bankr.N.D.N.Y.1997); In re Bivvins, 216 B.R. 622 (Bankr. E.D.Tenn.1997); In re Geyer, 203 B.R. 726 (Bankr.S.D.Cal.1996); In re Sanders, 202 B.R. 986 (Bankr.D.Neb.1996); In re Sette, 164 B.R. 453 (Bankr.E.D.N.Y.1994); In re Hornes, 160 B.R. 709 (Bankr.D.Conn.1993). But see, e.g., In re Tanner, 223 B.R. 379 (Bankr.M.D.Fla.1998) (denying strip off); In re Lewandowski, 219 B.R. 99 (Bankr.W.D.Pa. 1998) (same); In re Bauler, 215 B.R. 628 (Bankr.D.N.M.1997); In re Fraize, 208 B.R. 311 (Bankr.D.N.H.1997); In re Neverla, 194 B.R. 547 (Bankr.W.D.N.Y.1996); In re Jones, 201 B.R. 371 (Bankr.D.N.J.1996). The split in decisions arises from different interpretations of Nobelman v. American Savings Bank, 508 U.S. 324, 113 S.Ct. 2106, 124 L.Ed.2d 228 (1993) (superseded in part by statute). In Nobelman, the debtor’s home, worth $23,500, was encumbered with a single homestead lien of $71,335. Id. at 326, 113 S.Ct. at 2108. The debtor proposed to bifurcate the lien into a secured claim of $23,500, and an unsecured claim of $47,835. Id. The debtor argued that § 1322(b)(2) protected only that part of the claim defined as secured under § 506(a). The debtor further asserted that the unsecured claim component could be stripped down. Id. at 328,113 S.Ct. at 2109. The creditor argued that bifurcation would modify its rights in violation of § 1322(b)(2). Id. The Court held that “ § 1322(b)(2) prohibits a Chapter 13 debtor from relying on § 506(a) to reduce an un-dersecured homestead mortgage to the fair market value of the mortgaged residence.” Id. at 325-26,113 S.Ct. at 2108. First, the Nobelman Court held that when a creditor’s lien is at least partially secured, § 506(a) does not operate to eliminate the creditor’s rights in the unsecured claim component. Id. at 328-29, 113 S.Ct. at 2109-10. The debtors had asserted that a bifurcation and strip down did not modify a creditor’s rights because, in effect, the creditor had no rights in the unsecured claim component. However, the" }, { "docid": "23183065", "title": "", "text": "In re Lam, 211 B.R. 36 (9th Cir. BAP 1997); In re Bivvins, 216 B.R. 622 (Bankr.E.D.Tenn.1997); Scheuer v. Marine Midland Bank (In re Scheuer), 213 B.R. 415 (Bankr.N.D.N.Y.1997); In re Geyer, 203 B.R. 726 (Bankr.S.D.Cal.1996); In re Sanders, 202 B.R. 986 (Bankr.D.Neb.1996); In re Libby, 200 B.R. 562 (Bankr.D.N.J.1996); Vaillancourt v. Marlow (In re Vaillancourt), 197 B.R. 464 (Bankr.M.D.Pa.1996); Associates Fin. Servs. Corp. v. Purdue (In re Purdue), 187 B.R. 188 (S.D.Ohio 1995); Wright v. Commercial Credit Corp., 178 B.R. 703 (E.D.Va.1995), appeal dismissed, 77 F.3d 472, 1996 WL 63023 (4th Cir.1996); Norwest Fin. Georgia, Inc. v. Thomas (In re Thomas), 177 B.R. 750 (Bankr.S.D.Ga.1995); In re Lee, 177 B.R. 715 (Bankr.N.D.Ala.1995); Castellanos v. PNC Bank, Nat’l Ass’n (In re Castellanos), 178 B.R. 393 (Bankr.M.D.Pa.1994); Sette v. Bello (In re Sette), 164 B.R. 453 (Bankr.E.D.N.Y.1994); In re Mitchell, 177 B.R. 900 (Bankr.E.D.Mo.1994); In re Woodhouse, 172 B.R. 1 (Bankr.D.R.I.1994); In re Lee, 161 B.R. 271 (Bankr.W.D.Okla.1993); In re Hornes, 160 B.R. 709 (Bankr.D.Conn.1993); In re Williams, 161 B.R. 27 (Bankr.E.D.Ky.1993); In re Kidd, 161 B.R. 769 (Bankr.E.D.N.C.1993); In re Plouffe, 157 B.R. 198 (Bankr.D.Conn.1993); In re Moncrief, 163 B.R. 492 (Bankr.E.D.Ky.1993). . See, e.g., In re Lane, 248 B.R. 534 (Bankr.E.D.Tenn.2000); In re Enriquez, 244 B.R. 156 (Bankr.S.D.Cal.2000); In re Abruzzo, 245 B.R. 201 (Bankr.E.D.Pa.1999); Ortiz v. Household Fin. Corp. (In re Ortiz), 241 B.R. 460 (Bankr.E.D.Cal.1999); In re Perkins, 237 B.R. 658 (Bankr.S.D.Ohio 1999); Boehmer v. ESSEX (In re Boehmer), 240 B.R. 837 (Bankr.E.D.Pa.1999); In re Perry, 235 B.R. 603 (S.D.Tex.1999); Cupp v. Associates Consumer Discount Co. (In re Cupp), 229 B.R. 662 (Bankr.E.D.Pa.1999); American Gen. Fin., Inc. v. Dickerson, 229 B.R. 539 (M.D.Ga.1999); In re Diggs, 228 B.R. 611 (Bankr.W.D.La.1999); Tanner v. Firstplus Fin., Inc. (In re Tanner), 223 B.R. 379 (Bankr.M.D.Fla.1998); Lewandowski v. U.S. Department of Housing and Urban Development (In re Lewandowski), 219 B.R. 99 (Bankr.W.D.Pa.1998); In re Shandrew, 210 B.R. 829 (Bankr.E.D.Cal.1997); In re Bauler, 215 B.R. 628 (Bankr.D.N.M.1997); Fraize v. Beneficial Mortgage Corp. of N.H. (In re Fraize), 208 B.R. 311, (Bankr.D.N.H.1997); Barnes v. American Gen. Fin. (In re Barnes), 207 B.R. 588" }, { "docid": "11768330", "title": "", "text": "claim to the extent of the value of such creditor’s interest in the estate’s interest in such property, or to the extent of the amount subject to setoff, as the case may be, and is an unsecured claim to the extent that the value of such creditor’s interest or the amount so subject to setoff is less than the amount of such allowed claim. Such value shall be determined in light of the purpose of the valuation and of the proposed disposition or use of such property, and in conjunction with any hearing on such disposition or use or on a plan affecting such creditor’s interest. Since the estate’s interest in the property is entirely encumbered by the first mortgagee, the Defendants’ mortgages are, by statute, unsecured claims. 11 U.S.C. § 1322(b)(2) specifically allows for the modification of the rights of holders of unsecured claims without exception to residential mortgage lendings. Therefore, neither the bankruptcy Code nor Nobelman provide an impediment to mortgage modification. We will thus follow the increasingly long line of eases that are in accord with this position and avoid, in their entirety, the mortgage liens of the Defendants. . The term “strip off” has been utilized to describe litigation attempting to remove a totally unsecured junior mortgage from a debtor’s principal residence. In re Woodhouse, 172 B.R. 1 (Bankr.D.R.I.1994). See also Daniel C. Fleming and Marianne McConnell, The Treatment Of Residential Mortgages In Chapter 13 After Nobelman, 2 Am.Bankr.Inst.L.Rev. 147 (1994). . In re Woodhouse, 172 B.R. 1 (Bankr.D.R.I.1994); In re Sette, 164 B.R. 453 (Bankr.E.D.N.Y.1994); In re Williams, 161 B.R. 27 (Bankr.E.D.Ky.1993); In re Moncrief, 163 B.R. 492 (Bankr.E.D.Ky.1993); In re Hornes, 160 B.R. 709 (Bankr.D.Ct.1993); In re Plouffe, 157 B.R. 198 (Bankr.D.Ct.1993); In re Lee, 161 B.R. 271 (Bankr.W.D.Okl.1993); In re Brown, 1993 WL 544385 (Bankr.E.D.N.C.1993); In re Kidd, 161 B.R. 769 (Bankr.E.D.N.C.1993). See also Comments in In re Gelletich, 167 B.R. 370 (Bankr.E.D.Pa.1994)." }, { "docid": "19327901", "title": "", "text": "221 B.R. 756 (Bankr.C.D.Ill. 1998); In re Smith, 215 B.R. 716 (Bankr. W.D.Tenn.1998); In re Bivvins, 216 B.R. 622 (Bankr.E.D.Tenn.1997); In re Scheuer, 213 B.R. 415 (Bankr.N.D.N.Y.1997); In re Cervel-li, 213 B.R. 900 (Bankr.D.N.J.1997); In re Geyer, 203 B.R. 726 (Bankr.S.D.Cal.1996); In re Sanders, 202 B.R. 986 (Bankr.D.Neb.1996); In re Purdue, 187 B.R. 188 (S.D.Ohio 1995); Wright v. Commercial Credit Corp., 178 B.R. 703 (E.D.Va.1995); In re Thomas, 177 B.R. 750 (Bankr.S.D.Ga.1995); In re Lee, 177 B.R. 715 (Bankr.N.D.Ala.1995); In re Woodhouse, 172 B.R. 1 (Bankr.D.R.1.1994); In re Sette, 164 B.R. 453 (Bankr.E.D.N.Y.1994); In re Castellanos, 178 B.R. 393 (Bankr.M.D.Pa. 1994); In re Mitchell, 111 B.R. 900 (Bankr. E.D.Mo.1994); In re Hornes, 160 B.R. 709 (Bankr.D.Conn.1993); In re Ploujfe, 157 B.R. 198 (Bankr.D.Conn.1993); In re Lee, 161 B.R. 271 (Bankr.W.D.Okla.1993); In re Moncrief, 163 B.R. 492 (Bankr.E.D.Ky.1993); In re Kidd, 161 B.R. 769 (Bankr.E.D.N.C.1993); In re Williams, 161 B.R. 27 (Bankr.E.D.Ky.1993). . See, e.g., In re Boehmer, 240 B.R. 837 (Bankr.E.D.Pa.1999); In re Tanner, 223 B.R. 379 (Bankr.M.D.Fla.1998); In re Lewandow-ski, 219 B.R. 99 (Bankr.W.D.Pa.1998); In re Bauler, 215 B.R. 628 (Bankr.D.N.M.1997); In re Mattson, 210 B.R. 157 (Bankr.D.Minn.1997); In re Shandrew, 210 B.R. 829 (Bankr.E.D.Cal.1997); In re Fraize, 208 B.R. 311 (Bankr.D.N.H.1997); In re Barnes, 207 B.R. 588 (Bankr.N.D.Ill.1997); In re Nevería, 194 B.R. 547 (Bkrtcy.W.D.N.Y.1996); In re Barnes, 199 B.R. 256 (Bankr.S.D.N.Y.1996); In rejones, 201 B.R. 371 (Bankr.D.N.J.1996); In re Witt, 199 B.R. 890 (W.D.Va.1996). . Master Financial asserts in its brief that wholly unsecured mortgages are regularly bought and sold, and therefore a wholly unsecured mortgage has value and is still subject to the antimodification clause. Whatever value a wholly unsecured mortgage might have in the market Master Financial has in mind, that value has no bearing on the inquiry under § 506(a). Section 506(a) compares the value of the collateral against the \"creditor’s interest in the estate's interest in [the collateral].” Master Financial’s position would only make sense if the creditor was entitled to collect from the debtor not only the money owed on the debt but also the price that the mortgage might be sold" }, { "docid": "12621365", "title": "", "text": "on the debtor’s principal residence. More specifically, the Court held that the term “claim” in the “other than ...” clause of Section 1322(b)(2) did not refer back to the term “secured claims” in the preceding clause, but rather stood on its own and its definition encompassed both the secured and unsecured components of a partially secured creditor’s claim. Id. at 330-31, 113 S.Ct. at 2111. The Court did not specifically address the issue of a creditor in Green Tree’s position, 1.e. a creditor that is totally unsecured but holds a lien in the debtor’s principal residence. The vast majority of reported cases decided after Nobelman that have specifically addressed the issue have held that a creditor in Green Tree’s position is not protected by § 1322(b)(2)’s anti-modification provision, and that its rights may be modified by a Chapter 13 plan. See, Wright v. Commercial Credit Corp., 178 B.R. 703 (E.D.Va.1995); Norwest Fin. Georgia, Inc. v. Thomas (In re Thomas), 177 B.R. 750 (Bankr.S.D.Ga.1995); In re Lee, 177 B.R. 715 (Bankr.N.D.Ala.1995); Castellanos v. PNC Bank (In re Castellanos), 178 B.R. 393 (Bankr.M.D.Pa.1994); In re Woodhouse, 172 B.R. 1 (Bankr.D.R.I.1994); In re Mitchell, 177 B.R. 900 (Bankr.E.D.Mo.1994); In re Sette, 164 B.R. 453 (Bankr.E.D.N.Y.1994); In re Lee, 161 B.R. 271 (Bankr.W.D.Okla.1993); In re Hornes, 160 B.R. 709 (Bankr.D.Conn.1993); In re Williams, 161 B.R. 27 (Bankr.E.D.Ky.1993); In re Kidd, 161 B.R. 769 (Bankr.E.D.N.C.1993); In re Plouffe, 157 B.R. 198 (Bankr.D.Conn.1993); In re Moncrief, 163 B.R. 492 (Bankr.E.D.Ky.1993). See, also 5 LawRence P. King, et al., Collier on Bankruptcy ¶ 1322.06, at 1322-18 (15th ed. 1996) (“The Nobelman opinion strongly suggests, however, that if a lien is completely underse-cured, there would be a different result.”). But see, In re Nevería, 194 B.R. 547 (Bankr. W.D.N.Y.1996) (The right of a creditor holding a lien on the debtor’s principal residence cannot be modified in a Chapter 13 plan, even if wholly unsecured). In addition, in a case prior to Nobelman, Judge John Mina-han, a bankruptcy judge in this district, held that while a partially secured creditor secured only by a lien in the debtor’s principal residence" }, { "docid": "17717433", "title": "", "text": "(d)); In re Castellanos, 178 B.R. 393 (Bankr.M.D.Pa.1994) (applying the test under § 506(a) to determine whether the protection of the anti-modification clause applies and then allowing modification of unsecured claim under § 1322(b)(2)); In re Moncrief, 163 B.R. 492 (Bankr.E.D.Ky.1993) (holding that § 1322(b)(2) does not preclude modification by a Chapter 13 plan of the ‘rights’ of holders of unsecured claims, but rather restricts modification of the ‘rights’ of holders of secured claims secured only by a security interest in real property that is the debtor’s principal residence); In re Mitchell, 177 B.R. 900 (Bankr.E.D.Mo.1994) (allowing strip off of unsecured claim citing a “plethora” of cases post-Nobelman, reaching the same result); In re Thomas, 177 B.R. 750 (Bankr.S.D.Ga. 1995) (claim must be secured in some way by the residence to be entitled to protection against modification); In re Lee, 177 B.R. 715 (Bankr.N.D.Ala.1995) (claims of third and fourth mortgagees could properly be treated as unsecured where value of Chapter 13 debtor’s residence was less than balance owed on first and second mortgages); In re Williams, 161 B.R. 27 (Bankr.E.D.Ky.1993) (determining that wholly unsecured lien “differs materially” in character from the mortgage lien involved in Nobelman, and allows strip off); In re Woodhouse, 172 B.R. 1 (Bankr.D.R.I.1994) (adopting majority view, citing cases arising “Phoenix like and unanimously, from the ashes of Nobelman ”). It must be noted however, that inherent in the reasoning of these decisions espousing the majority view, is the significant caveat that the rights of a mortgagee, which is the holder of a secured claim in any amount, however slight, may not be modified in any way if that claim is secured only by a security interest in real property that is the Chapter 13 debtor’s principal residence. 211 B.R. 36. The most recent and comprehensive review of this issue is by the United States Bankruptcy Appellate Panel of the Ninth Circuit in In re Lam, 211 B.R. 36, wherein as in the case sub judice, Chapter 13 debtors sought to have a lien on their primary residence “stripped off’ as wholly unsecured. Adopting the majority view," }, { "docid": "4156335", "title": "", "text": "900 (Bankr.D.N.J.1997); In re Geyer, 203 B.R. 726 (Bankr.S.D.Cal.1996); In re Sanders, 202 B.R. 986 (Bankr.D.Neb.1996); Associates Fin. Servs. Corp. v. Purdue (In re Purdue), 187 B.R. 188 (S.D.Ohio 1995); Wright v. Commercial Credit Corp. (In re Wright), 178 B.R. 703 (E.D.Va. 1995), appeal dismissed without op., 77 F.3d 472 (4th Cir.1996)(unpublished table decision); Vaillancourt v. Marlow (In re Vaillancourt), 197 B.R. 464 (Bankr.M.D.Pa.1996); In re Cavaliere, 194 B.R. 7 (Bankr.D.Conn.1996); Castellanos v. PNC Bank, Nat’l Ass’n (In re Castellanos), 178 B.R. 393 (Bankr.M.D.Pa.1994); In re Mitchell, 177 B.R. 900 (Bankr.E.D.Mo.1994); Norwest Fin. Ga. v. Thomas (In re Thomas), 177 B.R. 750 (Bankr.S.D.Ga.1995); In re Lee, 177 B.R. 715 (Bankr.N.D.Ala.1995); In re Woodhouse, 172 B.R. 1 (Bankr.D.R.I.1994); In re Sette, 164 B.R. 453 (Bankr.E.D.N.Y.1994); In re Castellanos, 178 B.R. 393 (Bankr.M.D.Pa.1994); In re Mitchell, 174 B.R. 900 (Bankr.E.D.Mo.1994); In re Hornes, 160 B.R. 709 (Bankr.D.Conn. 1993); In re Moncrief, 163 B.R. 492 (Bankr.E.D.Ky.1993); In re Kidd, 161 B.R. 769 (Bankr.E.D.N.C.1993); In re Lee, 161 B.R. 271 (Bankr.W.D.Okla.1993); In re Williams, 161 B.R. 27 (Bankr.E.D.Ky.1993); In re Hornes, 160 B.R. 709 (Bankr.D.Conn. 1993); In re Plouffe, 157 B.R. 198 (Bankr.D.Conn.1993); see also Howard v. National Westminister Bank (In re Howard), 184 B.R. 644 (Bankr.E.D.N.Y.1995) (wholly unsecured nonconsensual judicial lien may be \"stripped down” in a Chapter 7 case); In re Gray, 182 B.R. 15 (Bankr.W.D.Va.1995) (denial of attorney's fees to secured creditor with no remaining collateral is not a modifi cation); In re Hutchins, 162 B.R. 1014 (Bankr.N.D.Ill.1994) (lender whose lien is eliminated by a foreclosure by the first mortgagee no longer has a security interest protected by § 1322(b)(2)); cf. In re Cardinale, 142 B.R. 42 (Bankr.D.R.I.1992) (pre-Nobelman case). . See In re Perry, 235 B.R. 603 (S.D.Tex.1999); American General Finance, Inc. v. Dickerson, 229 B.R. 539 (M.D.Ga.1999); Green Tree Consumer Discount Co. v. Miller (In re Miller), No. 99-13446DWS, 1999 WL 1052509 (Bkrtcy.E.D.Pa. Nov.5, 1999); In re Cater, 240 B.R. 420 (Bkrtcy.M.D.Ala.1999); In re Boehmer, 240 B.R. 837 (Bankr.E.D.Pa. 1999); In re Perkins, 237 B.R. 658 (Bankr.S.D.Ohio 1999); In re Cupp, 229 B.R. 662 (Bankr.E.D.Pa. 1999); In re Diggs," }, { "docid": "23183064", "title": "", "text": "a split of opinion among our bankruptcy courts. As noted above, Chief Judge Votolato of the United States Bankruptcy Court for the District of Rhode Island has ruled that wholly unsecured mortgages are not entitled to the § 1322(b)(2) protection. In re Woodhouse, 172 B.R. at 3. The United States Bankruptcy Court for the District of New Hampshire has ruled otherwise. Fraize v. Beneficial Mortgage Corp. of N.H. (In re Fraize), 208 B.R. 311, 313 (Bankr.D.N.H.1997). . See, e.g., Bartee v. Tara Colony Homeowners Ass’n (In re Bartee), 212 F.3d 277 (5th Cir.2000); McDonald v. Master Fin., Inc. (In re McDonald), 205 F.3d 606 (3rd Cir.2000); Western Interstate Bancorp v. Edwards (In re Edwards), 245 B.R. 917 (Bankr.S.D.Ga.2000); In re Baez, 244 B.R. 480 (S.D.Fla.2000); In re McCarron, 242 B.R. 479 (Bankr.W.D.Mo.2000); Johnson v. Asset Management Group, LLC, 226 B.R. 364 (D.Md.1998); In re Phillips, 224 B.R. 871 (Bankr.W.D.Mich.1998); In re Cerminaro, 220 B.R. 518 (Bankr.N.D.N.Y.1998); Smith v. First Citizens Bank (In re Smith), 215 B.R. 716 (Bankr.W.D.Tenn.1998); In re Cervelli, 213 B.R. 900 (Bankr.D.N.J.1997); In re Lam, 211 B.R. 36 (9th Cir. BAP 1997); In re Bivvins, 216 B.R. 622 (Bankr.E.D.Tenn.1997); Scheuer v. Marine Midland Bank (In re Scheuer), 213 B.R. 415 (Bankr.N.D.N.Y.1997); In re Geyer, 203 B.R. 726 (Bankr.S.D.Cal.1996); In re Sanders, 202 B.R. 986 (Bankr.D.Neb.1996); In re Libby, 200 B.R. 562 (Bankr.D.N.J.1996); Vaillancourt v. Marlow (In re Vaillancourt), 197 B.R. 464 (Bankr.M.D.Pa.1996); Associates Fin. Servs. Corp. v. Purdue (In re Purdue), 187 B.R. 188 (S.D.Ohio 1995); Wright v. Commercial Credit Corp., 178 B.R. 703 (E.D.Va.1995), appeal dismissed, 77 F.3d 472, 1996 WL 63023 (4th Cir.1996); Norwest Fin. Georgia, Inc. v. Thomas (In re Thomas), 177 B.R. 750 (Bankr.S.D.Ga.1995); In re Lee, 177 B.R. 715 (Bankr.N.D.Ala.1995); Castellanos v. PNC Bank, Nat’l Ass’n (In re Castellanos), 178 B.R. 393 (Bankr.M.D.Pa.1994); Sette v. Bello (In re Sette), 164 B.R. 453 (Bankr.E.D.N.Y.1994); In re Mitchell, 177 B.R. 900 (Bankr.E.D.Mo.1994); In re Woodhouse, 172 B.R. 1 (Bankr.D.R.I.1994); In re Lee, 161 B.R. 271 (Bankr.W.D.Okla.1993); In re Hornes, 160 B.R. 709 (Bankr.D.Conn.1993); In re Williams, 161 B.R. 27 (Bankr.E.D.Ky.1993); In re Kidd, 161" }, { "docid": "4156334", "title": "", "text": "under § 506(a); however, that determination does not necessarily mean that the “rights” the bank enjoys as a mortgagee, which are protected by § 1322(b)(2), are limited by the valuation of its secured claim. 508 U.S. at 329, 113 S.Ct. 2106 (emphasis added). . If we err in our view, we are in good company. See In re McCarron, 242 B.R. 479 (Bankr.W.D.Mo.2000); In re Flowers, No. 98-11492, 1999 WL 118022 (Bkrtcy.E.D.Va. Jan.14, 1999); Johnson v. Asset Management Group, LLC (In re Johnson), 226 B.R. 364 (D.Md.1998); In re Yi, 219 B.R. 394 (E.D.Va.1998); Lam v. Investor's Thrift (In re Lam), 211 B.R. 36 (9th Cir. BAP 1997) appeal dismissed, 192 F.3d 1309 (9th Cir.1999); In re Perugini, 234 B.R. 247 (Bankr.D.Conn.1999); In re Phillips, 224 B.R. 871 (Bankr.W.D.Mich. 1998); In re Reeves, 221 B.R. 756 (Bankr.C.D.Ill.1998); In re Cerminaro, 220 B.R. 518, 32 Bankr.Ct. Dec. (CRR) 708 (Bankr.N.D.N.Y.1998); In re Biwins, 216 B.R. 622 (Bankr.E.D.Tenn.1997); In re Smith, 215 B.R. 716 (Bankr.W.D.Tenn.1998); In re Scheuer, 213 B.R. 415 (Bankr.N.D.N.Y.1997); In re Cervelli, 213 B.R. 900 (Bankr.D.N.J.1997); In re Geyer, 203 B.R. 726 (Bankr.S.D.Cal.1996); In re Sanders, 202 B.R. 986 (Bankr.D.Neb.1996); Associates Fin. Servs. Corp. v. Purdue (In re Purdue), 187 B.R. 188 (S.D.Ohio 1995); Wright v. Commercial Credit Corp. (In re Wright), 178 B.R. 703 (E.D.Va. 1995), appeal dismissed without op., 77 F.3d 472 (4th Cir.1996)(unpublished table decision); Vaillancourt v. Marlow (In re Vaillancourt), 197 B.R. 464 (Bankr.M.D.Pa.1996); In re Cavaliere, 194 B.R. 7 (Bankr.D.Conn.1996); Castellanos v. PNC Bank, Nat’l Ass’n (In re Castellanos), 178 B.R. 393 (Bankr.M.D.Pa.1994); In re Mitchell, 177 B.R. 900 (Bankr.E.D.Mo.1994); Norwest Fin. Ga. v. Thomas (In re Thomas), 177 B.R. 750 (Bankr.S.D.Ga.1995); In re Lee, 177 B.R. 715 (Bankr.N.D.Ala.1995); In re Woodhouse, 172 B.R. 1 (Bankr.D.R.I.1994); In re Sette, 164 B.R. 453 (Bankr.E.D.N.Y.1994); In re Castellanos, 178 B.R. 393 (Bankr.M.D.Pa.1994); In re Mitchell, 174 B.R. 900 (Bankr.E.D.Mo.1994); In re Hornes, 160 B.R. 709 (Bankr.D.Conn. 1993); In re Moncrief, 163 B.R. 492 (Bankr.E.D.Ky.1993); In re Kidd, 161 B.R. 769 (Bankr.E.D.N.C.1993); In re Lee, 161 B.R. 271 (Bankr.W.D.Okla.1993); In re Williams, 161 B.R. 27 (Bankr.E.D.Ky.1993); In" }, { "docid": "10562928", "title": "", "text": "In re Libby, 200 B.R. 562 (Bankr. D.N.J.1996); In re Purdue, 187 B.R. 188 (S.D.Ohio 1995); In re Lee, 177 B.R. 715 (Bankr.N.D.Ala.1995); Norwest Financial Georgia, Inc. v. Thomas (In re Thomas), 177 B.R. 750 (Bankr.S.D.Ga.1995); In re Mitchell, 177 B.R. 900 (Bankr.E.D.Mo.1994); Castellanos v. PNC Bank (In re Castellanos), 178 B.R. 393 (Bankr.M.D.Pa.1994); In re Woodhouse, 172 B.R. 1 (Bankr.D.R.1.1994); In re Sette, 164 B.R. 453 (Bankr.E.D.N.Y. 1994); In re Moncrief, 163 B.R. 492 (Bankr.E.D.Ky.1993); In re Lee, 161 B.R. 271 (Bankr.W.D.Okla.1993); In re Williams, 161 B.R. 27 (Bankr.E.D.Ky.1993); In re Kidd, 161 B.R. 769 (Bankr.E.D.N.C.1993); In re Homes, 160 B.R. 709 (Bankr.D.Conn.1993); In re Plouffe, 157 B.R. 198 (Bankr.D.Conn.1993). A few have agreed with Greentree’s argument. In re Jones, 201 B.R. 371 (Bankr.D.N.J.1996); In re Barnes, 199 B.R. 256 (Bankr.W.D.N.Y.1996); In re Neverla, 194 B.R. 547 (Bankr.W.D.N.Y.1996). The court realizes that its interpretation of the statute creates a cut-off point that depends on the valuation of the debtor’s home. If the creditor’s claim is barely an allowed secured claim under § 506(a), then the exception protects the creditor’s rights from modification. For example, the creditor’s allowed secured claim may be $500 out of a $10,000 claim; the exception will apply. On the other hand, if the higher priority liens barely exceed the value of the property, then the creditor’s rights will not be protected by the home mortgage exception and can be modified. For example, the higher priority liens may secure debts totaling $50,000 on property valued at $49,500. The creditor’s lower priority mortgage will not give it any allowed secured claim, and as a result, its entire claim will not be protected by the home mortgage exception. The law sometimes uses cutoff points such as this even if they appear to be unfair. See, e.g., 11 U.S.C. §§ 109(e), 507(a)(3)-(6), 522(d), 523(a)(2)(C) & 547(c)(8). The structure of § 1322(b)(2), however, does not support the conclusion that the exception applies when the claim-holder does not have an allowed secured claim. The court will enter an order overruling the Greentree objection to confirmation and a separate order confirming the" }, { "docid": "4156336", "title": "", "text": "re Hornes, 160 B.R. 709 (Bankr.D.Conn. 1993); In re Plouffe, 157 B.R. 198 (Bankr.D.Conn.1993); see also Howard v. National Westminister Bank (In re Howard), 184 B.R. 644 (Bankr.E.D.N.Y.1995) (wholly unsecured nonconsensual judicial lien may be \"stripped down” in a Chapter 7 case); In re Gray, 182 B.R. 15 (Bankr.W.D.Va.1995) (denial of attorney's fees to secured creditor with no remaining collateral is not a modifi cation); In re Hutchins, 162 B.R. 1014 (Bankr.N.D.Ill.1994) (lender whose lien is eliminated by a foreclosure by the first mortgagee no longer has a security interest protected by § 1322(b)(2)); cf. In re Cardinale, 142 B.R. 42 (Bankr.D.R.I.1992) (pre-Nobelman case). . See In re Perry, 235 B.R. 603 (S.D.Tex.1999); American General Finance, Inc. v. Dickerson, 229 B.R. 539 (M.D.Ga.1999); Green Tree Consumer Discount Co. v. Miller (In re Miller), No. 99-13446DWS, 1999 WL 1052509 (Bkrtcy.E.D.Pa. Nov.5, 1999); In re Cater, 240 B.R. 420 (Bkrtcy.M.D.Ala.1999); In re Boehmer, 240 B.R. 837 (Bankr.E.D.Pa. 1999); In re Perkins, 237 B.R. 658 (Bankr.S.D.Ohio 1999); In re Cupp, 229 B.R. 662 (Bankr.E.D.Pa. 1999); In re Diggs, 228 B.R. 611 (Bankr.W.D.La.1999); In re Tanner, 223 B.R. 379 (Bankr.M.D.Fla.1998); In re Lewandowski, 219 B.R. 99 (Bankr.W.D.Pa.1998); In re Bauler, 215 B.R. 628 (Bankr.D.N.M.1997); In re Mattson, 210 B.R. 157 (Bankr.D.Minn. 1997); In re Shandrew, 210 B.R. 829 (Bankr.E.D.Cal.1997); In re Fraize, 208 B.R. 311 (Bankr.D.N.H.1997); In re Barnes, 207 B.R. 588 (Bankr.N.D.Ill. 1997); In re Jones, 201 B.R. 371 (Bankr.D.N.J.1996); In re Barnes, 199 B.R. 256 (Bankr.W.D.N.Y.1996); In re Witt, 199 B.R. 890 (W.D.Va.1996); In re Neveria, 194 B.R. 547 (Bankr.W.D.N.Y.1996); In re Johnson, 160 B.R. 800 (S.D.Ohio 1993) (section 1322(b)(2) prevents modification of a mechanic's lien which is entirely undersecured). . Colliers adopts the majority view: The Nobelman opinion strongly suggests ... that if a lien is completely underse-cured, there would be a different result. The opinion relies on the fact that, even after bifurcation, the creditor in the case was \"still the 'holder' of a 'secured claim’ because petitioners' home retain[ed] $23,-000 of value as collateral.\" If the creditor had held a lien on property that had no value (perhaps because" }, { "docid": "17717432", "title": "", "text": "claim.); In re Hornes, 160 B.R. 709 (Bankr.D.Conn.1993) (in depth analysis parsing the language of § 1322(b)(2) and considering its treatment in light of Nobelman, finding that a Chapter 13 plan could modify the rights of junior mortgagee whose claim was wholly unsecured, mortgagee did not qualify as creditor whose claim was “secured by an interest in property that was debtor’s principal residence,” within meaning of statute); In re Purdue, 187 B.R. 188 (S.D.Ohio 1995) (allowing strip off under § 506(a), holding that second mortgagees claim does not include secured claim component where value of residence is less than senior mortgage lien); Wright v. Commercial Credit Corp., 178 B.R. 703 (E.D.Va.1995) (first District Court decision concluding prohibition against modification applies only when debtor has some equity in residence, after satisfaction of prior liens; prohibition against lien stripping does not apply when creditor’s claim is completely unsecured); In re Sette, 164 B.R. 453 (Bankr.E.D.N.Y.1994) (treating entirely unsecured second mortgage lien as general unsecured claim and avoiding lien in its entirety pursuant to 11 U.S.C. 506(a) and (d)); In re Castellanos, 178 B.R. 393 (Bankr.M.D.Pa.1994) (applying the test under § 506(a) to determine whether the protection of the anti-modification clause applies and then allowing modification of unsecured claim under § 1322(b)(2)); In re Moncrief, 163 B.R. 492 (Bankr.E.D.Ky.1993) (holding that § 1322(b)(2) does not preclude modification by a Chapter 13 plan of the ‘rights’ of holders of unsecured claims, but rather restricts modification of the ‘rights’ of holders of secured claims secured only by a security interest in real property that is the debtor’s principal residence); In re Mitchell, 177 B.R. 900 (Bankr.E.D.Mo.1994) (allowing strip off of unsecured claim citing a “plethora” of cases post-Nobelman, reaching the same result); In re Thomas, 177 B.R. 750 (Bankr.S.D.Ga. 1995) (claim must be secured in some way by the residence to be entitled to protection against modification); In re Lee, 177 B.R. 715 (Bankr.N.D.Ala.1995) (claims of third and fourth mortgagees could properly be treated as unsecured where value of Chapter 13 debtor’s residence was less than balance owed on first and second mortgages); In re" }, { "docid": "8085124", "title": "", "text": "and is not entitled to the protection of section 1322(b)(2). See, In re Woodhouse, 172 B.R. 1 (Bankr.D.R.I.1994); In re Sette, 164 B.R. 453, 456 (Bankr.E.D.N.Y.1994); In re Moncrief, 163 B.R. 492 (Bankr.E.D.N.Y.1994); In re Williams, 161 B.R. 27 (Bankr.E.D.Ky.1993); In re Lee, 161 B.R. 271 (Bankr.W.D.Okla.1993); In re Kidd, 161 B.R. 769, 771 (Bankr.E.D.N.C.1993); In re Homes, 160 B.R. 709 (Bankr.D.Conn.1993); and In re Plouffe, 157 B.R. 198 (Bankr.D.Conn.1993). Unsecured creditor’s rights are frequently modified under the Bankruptcy Code. There is neither a logical or rational basis for a creditor holding a completely unsecured claim to be protected from claim modification in a bankruptcy case simply because the creditor had obtained a lien on the homestead prepetition. Plouffe, 157 B.R. at 200 (footnote omitted). The fact that CCC holds a recorded mortgage lien does not conclusively determine its rights under the Bankruptcy Code. The code does not generally classify creditors based on the existence of a piece of paper purporting to give a creditor rights in specified collateral, but rather on whether a creditor actually holds a claim supported by valuable estate property. Hornes, 160 B.R. at 715. CCC does not have an allowed secured claim under section 506(a) and is not entitled to protection under section 1322(b)(2). IY. CONCLUSION In order to be afforded the protections of section 1322(b)(2) the creditor must be the holder of a claim which is at least partially secured. Nobelman, 508 U.S. 324, 113 S.Ct. 2106, 124 L.Ed.2d 228 (1993). This court holds that the term “secured claim” as used in section 1322(b)(2) has the same meaning as the term “secured claim” in section 506(a). Unless there is some equity to which the creditor’s lien attaches, there is no allowed secured claim and no entitlement to the protections against modification contained in section 1322(b)(2). A chapter 13 debtor may “strip-off” a lien on his or her primary residence under the plan or under section 506(d) when the lienholder’s interest is totally unsecured. For the foregoing reasons this court grants the Debtors’ motion to void the lien of CCC. This Memorandum Decision constitutes findings" }, { "docid": "19327900", "title": "", "text": "§ 1322(b)(2). The judgment of the District Court will be reversed. The case will be remanded to the District Court for it to remand the matter to the Bankruptcy Court for further proceedings consistent with this opinion. Costs taxed against appellee. . Note that the phrase \"wholly unsecured” in this context carries a specific meaning. While the mortgage holder of course initially obtained a security interest in the debtor’s residence and in that sense has a secured claim, the second mortgage is now deemed wholly unsecured in the sense that the value of the debtor’s residence is less than the amount due to a first or senior mortgage holder, leaving no remaining value for the second mortgage. Thus, at a foreclosure sale the holder of the wholly unsecured second mortgage would receive nothing from the direct proceeds of the sale. . See, e.g., In re McCarron, 242 B.R. 479 (Bankr.W.D.Mo.2000); In re Johnson, 226 B.R. 364 (D.Md. 1998); In re Cerminaro, 220 B.R. 518 (Bankr.N.D.N.Y.1998); In re Phillips, 224 B.R. 871 (Bankr.W.D.Mich.1998); In re Reeves, 221 B.R. 756 (Bankr.C.D.Ill. 1998); In re Smith, 215 B.R. 716 (Bankr. W.D.Tenn.1998); In re Bivvins, 216 B.R. 622 (Bankr.E.D.Tenn.1997); In re Scheuer, 213 B.R. 415 (Bankr.N.D.N.Y.1997); In re Cervel-li, 213 B.R. 900 (Bankr.D.N.J.1997); In re Geyer, 203 B.R. 726 (Bankr.S.D.Cal.1996); In re Sanders, 202 B.R. 986 (Bankr.D.Neb.1996); In re Purdue, 187 B.R. 188 (S.D.Ohio 1995); Wright v. Commercial Credit Corp., 178 B.R. 703 (E.D.Va.1995); In re Thomas, 177 B.R. 750 (Bankr.S.D.Ga.1995); In re Lee, 177 B.R. 715 (Bankr.N.D.Ala.1995); In re Woodhouse, 172 B.R. 1 (Bankr.D.R.1.1994); In re Sette, 164 B.R. 453 (Bankr.E.D.N.Y.1994); In re Castellanos, 178 B.R. 393 (Bankr.M.D.Pa. 1994); In re Mitchell, 111 B.R. 900 (Bankr. E.D.Mo.1994); In re Hornes, 160 B.R. 709 (Bankr.D.Conn.1993); In re Ploujfe, 157 B.R. 198 (Bankr.D.Conn.1993); In re Lee, 161 B.R. 271 (Bankr.W.D.Okla.1993); In re Moncrief, 163 B.R. 492 (Bankr.E.D.Ky.1993); In re Kidd, 161 B.R. 769 (Bankr.E.D.N.C.1993); In re Williams, 161 B.R. 27 (Bankr.E.D.Ky.1993). . See, e.g., In re Boehmer, 240 B.R. 837 (Bankr.E.D.Pa.1999); In re Tanner, 223 B.R. 379 (Bankr.M.D.Fla.1998); In re Lewandow-ski, 219 B.R. 99 (Bankr.W.D.Pa.1998);" }, { "docid": "8085123", "title": "", "text": "The Nobelman court reasoned that the debtor could not bifurcate a creditor’s claim into a secured claim and an unsecured claim without modifying the creditor’s contract rights and running afoul of section 1322(b)(2). 508 U.S. at 331, 113 S.Ct. at 2111. Nobel-man focused on the creditor’s rights as a secured creditor under the note that applied to the overall claim. Id. Bifurcating the creditor’s claim into an unsecured claim and secured claim would require the debtor to propose a new schedule of monthly payments to pay the secured claim, a new loan term and a new interest rate, all modifications which section 1322(b)(2) prohibits. Id. “Nobelman focused on the rights afforded a mortgagee under state law and applicable loan documents only after noting that the creditor before it was the holder of a ‘secured claim’ ...” In re Homes, 160 B.R. 709, 715 (Bankr.D.Conn.1993). The Nobelman court’s concern does not apply here when the creditor’s claim is totally unsecured. Where the estate’s interest in property is zero, the claim under section 506(a) is completely unsecured and is not entitled to the protection of section 1322(b)(2). See, In re Woodhouse, 172 B.R. 1 (Bankr.D.R.I.1994); In re Sette, 164 B.R. 453, 456 (Bankr.E.D.N.Y.1994); In re Moncrief, 163 B.R. 492 (Bankr.E.D.N.Y.1994); In re Williams, 161 B.R. 27 (Bankr.E.D.Ky.1993); In re Lee, 161 B.R. 271 (Bankr.W.D.Okla.1993); In re Kidd, 161 B.R. 769, 771 (Bankr.E.D.N.C.1993); In re Homes, 160 B.R. 709 (Bankr.D.Conn.1993); and In re Plouffe, 157 B.R. 198 (Bankr.D.Conn.1993). Unsecured creditor’s rights are frequently modified under the Bankruptcy Code. There is neither a logical or rational basis for a creditor holding a completely unsecured claim to be protected from claim modification in a bankruptcy case simply because the creditor had obtained a lien on the homestead prepetition. Plouffe, 157 B.R. at 200 (footnote omitted). The fact that CCC holds a recorded mortgage lien does not conclusively determine its rights under the Bankruptcy Code. The code does not generally classify creditors based on the existence of a piece of paper purporting to give a creditor rights in specified collateral, but rather on whether a creditor" }, { "docid": "10237331", "title": "", "text": "unsecured claims clause, the rights of a holder of only an unsecured claim ... are not protected from modification.” In re Hornes, 160 B.R. 709, 711 (Bankr.D.Conn.1993). Thus, Debtor’s attempt to modify the rights of the Creditor in this case is not prohibited by Nobelman and is instead consistent with the plain language of § 1322(b)(2). B. Post-Nobelman Bankruptcy Court Decisions This Court is aware of a plethora of post-Nobelman bankruptcy court decisions which address the same issue presented in this case and which reach the same result. Without describing in detail the facts and analysis of each decision, this Court points to these cases as support for the reasoning adopted herein. Sette v. Bello (In re Sette), 164 B.R. 453, 456 (Bankr.E.D.N.Y.1994) (“since there is no equity or value in the collateral to which the ... second mortgage may attach, the ... claim may be treated as a general unsecured claim”); In re Lee, 161 B.R. 271, 274 (Bankr.W.D.Okla.1993) (Nobelman applies to all un-dersecured, as opposed to wholly unsecured mortgages); In re Williams, 161 B.R. 27, 30 (Bankr.E.D.Ky.1993) (some portion of mortgagee’s claim must be secured under § 506(a) before the mortgagee is entitled to retain its rights under state law); In re Hornes, 160 B.R. 709, 716 (Bankr.D.Conn.1993) (for mortgagee’s rights to be protected under § 1322(b)(2), it must first qualify as the holder of a secured claim under § 506(a)); In re Plouffe, 157 B.R. 198, 199 (Bankr.D.Conn.1993) (“Nobelman requires that the mortgage holder have some equity in the homestead to be entitled to the status of a secured claim holder, with nonmodifiable rights”). CONCLUSION For the foregoing reasons it is ORDERED that the Debtor’s Objection to the Claim of Green Tree Financial Corporation is SUSTAINED." }, { "docid": "10562927", "title": "", "text": "case. If the Supreme Court intended to make the exception apply to creditors without allowed secured claims, it certainly could have made the point clearly. The steps in Green-tree’s argument reveal that the opinion is not clear at all on this point. Furthermore, during the crucial part of the opinion the Supreme Court left no doubt it was dealing with an undersecured claim and a creditor with an allowed secured claim. Nobelman, 508 U.S. at 330-32,113 S.Ct. at 2111. Greentree is not the holder of an allowed secured claim. Therefore, the portion of § 1322(b)(2) that allows a plan to modify the rights of holders of allowed secured claims is irrelevant to how the plan can deal with Greentree’s claim. Likewise, the home mortgage exception is irrelevant since it is contained within that portion of § 1322(b)(2). The plan can modify Green-tree’s rights as the holder of an unsecured claim. The great majority of reported decisions have reached the same conclusion. In re Geyer, 203 B.R. 726 (Bankr.S.D.Cal.1996); In re Sanders, 202 B.R. 986 (Bankr.D.Neb.1996); In re Libby, 200 B.R. 562 (Bankr. D.N.J.1996); In re Purdue, 187 B.R. 188 (S.D.Ohio 1995); In re Lee, 177 B.R. 715 (Bankr.N.D.Ala.1995); Norwest Financial Georgia, Inc. v. Thomas (In re Thomas), 177 B.R. 750 (Bankr.S.D.Ga.1995); In re Mitchell, 177 B.R. 900 (Bankr.E.D.Mo.1994); Castellanos v. PNC Bank (In re Castellanos), 178 B.R. 393 (Bankr.M.D.Pa.1994); In re Woodhouse, 172 B.R. 1 (Bankr.D.R.1.1994); In re Sette, 164 B.R. 453 (Bankr.E.D.N.Y. 1994); In re Moncrief, 163 B.R. 492 (Bankr.E.D.Ky.1993); In re Lee, 161 B.R. 271 (Bankr.W.D.Okla.1993); In re Williams, 161 B.R. 27 (Bankr.E.D.Ky.1993); In re Kidd, 161 B.R. 769 (Bankr.E.D.N.C.1993); In re Homes, 160 B.R. 709 (Bankr.D.Conn.1993); In re Plouffe, 157 B.R. 198 (Bankr.D.Conn.1993). A few have agreed with Greentree’s argument. In re Jones, 201 B.R. 371 (Bankr.D.N.J.1996); In re Barnes, 199 B.R. 256 (Bankr.W.D.N.Y.1996); In re Neverla, 194 B.R. 547 (Bankr.W.D.N.Y.1996). The court realizes that its interpretation of the statute creates a cut-off point that depends on the valuation of the debtor’s home. If the creditor’s claim is barely an allowed secured claim under § 506(a), then" }, { "docid": "12621366", "title": "", "text": "re Castellanos), 178 B.R. 393 (Bankr.M.D.Pa.1994); In re Woodhouse, 172 B.R. 1 (Bankr.D.R.I.1994); In re Mitchell, 177 B.R. 900 (Bankr.E.D.Mo.1994); In re Sette, 164 B.R. 453 (Bankr.E.D.N.Y.1994); In re Lee, 161 B.R. 271 (Bankr.W.D.Okla.1993); In re Hornes, 160 B.R. 709 (Bankr.D.Conn.1993); In re Williams, 161 B.R. 27 (Bankr.E.D.Ky.1993); In re Kidd, 161 B.R. 769 (Bankr.E.D.N.C.1993); In re Plouffe, 157 B.R. 198 (Bankr.D.Conn.1993); In re Moncrief, 163 B.R. 492 (Bankr.E.D.Ky.1993). See, also 5 LawRence P. King, et al., Collier on Bankruptcy ¶ 1322.06, at 1322-18 (15th ed. 1996) (“The Nobelman opinion strongly suggests, however, that if a lien is completely underse-cured, there would be a different result.”). But see, In re Nevería, 194 B.R. 547 (Bankr. W.D.N.Y.1996) (The right of a creditor holding a lien on the debtor’s principal residence cannot be modified in a Chapter 13 plan, even if wholly unsecured). In addition, in a case prior to Nobelman, Judge John Mina-han, a bankruptcy judge in this district, held that while a partially secured creditor secured only by a lien in the debtor’s principal residence would be protected by the anti-modification provision of § 1322(b)(2), a totally unsecured creditor like Green Tree could have its rights modified by a plan. In re Kaczmarczyk, 107 B.R. 200, 204 (Bankr.D.Neb.1989). The first aspect of Judge Mi-nahan’s opinion is consistent with Nobelman; the second aspect was not overruled by Nobelman. Perhaps the best analysis of this issue in a post-Nobelman case was provided by In re Hornes, 160 B.R. at 709. In that ease, the court found that the term “secured claim” can be construed in two ways. First, it may be interpreted in the literal sense, that is, a claim that is secured by a lien on collateral. Second, it may be interpreted in the “code” sense, that is, a claim is secured to the extent that there exists some equity in the collateral that secures the claim. Id. at 711-12. The court went on to find that the “other than ...” clause of § 1322(b)(2), as held by Nobel-man, refers to a secured claim in the literal sense, but that the" }, { "docid": "15164126", "title": "", "text": "Section 506(a) states: An allowed claim of a creditor secured by a lien on property in which the estate has an interest ... is a secured claim to the extent of the value of such creditor’s interest in the estate’s interest in such property, ... and is an unsecured claim to the extent that the value of such creditor’s interest ... is less than the amount of such allowed claim. The issue of the interplay between §§ 506(a) and 1322(b)(2) in the context of completely unsecured junior homestead hens is one of first impression for this Court. Moreover, the issue also has not been directly addressed in any published opinion of the United States Court of Appeals for the Fourth Circuit. The issue has, however, been much debated in bankruptcy court and three district court opinions. The courts have divided on the issue, with the majority deciding that such liens may be stripped off. See, e.g., In re Lam, 211 B.R. 36 (9th Cir. BAP 1997) (allowing strip off); In re Purdue, 187 B.R. 188 (S.D.Ohio 1995) (same); Wright v. Commercial Credit Corp., 178 B.R. 703 (E.D.Va.1995); In re Cerminaro, 220 B.R. 518 (Bankr.N.D.N.Y.1998); In re Cervelli, 213 B.R. 900 (Bankr.D.N.J.1997); In re Scheuer, 213 B.R. 415 (Bankr.N.D.N.Y.1997); In re Bivvins, 216 B.R. 622 (Bankr. E.D.Tenn.1997); In re Geyer, 203 B.R. 726 (Bankr.S.D.Cal.1996); In re Sanders, 202 B.R. 986 (Bankr.D.Neb.1996); In re Sette, 164 B.R. 453 (Bankr.E.D.N.Y.1994); In re Hornes, 160 B.R. 709 (Bankr.D.Conn.1993). But see, e.g., In re Tanner, 223 B.R. 379 (Bankr.M.D.Fla.1998) (denying strip off); In re Lewandowski, 219 B.R. 99 (Bankr.W.D.Pa. 1998) (same); In re Bauler, 215 B.R. 628 (Bankr.D.N.M.1997); In re Fraize, 208 B.R. 311 (Bankr.D.N.H.1997); In re Neverla, 194 B.R. 547 (Bankr.W.D.N.Y.1996); In re Jones, 201 B.R. 371 (Bankr.D.N.J.1996). The split in decisions arises from different interpretations of Nobelman v. American Savings Bank, 508 U.S. 324, 113 S.Ct. 2106, 124 L.Ed.2d 228 (1993) (superseded in part by statute). In Nobelman, the debtor’s home, worth $23,500, was encumbered with a single homestead lien of $71,335. Id. at 326, 113 S.Ct. at 2108. The debtor proposed to" } ]

[ { "docid": "2025732", "title": "", "text": "a patent is issued and it appears that the correct inventor or inventors were not named through error without deceptive intention on the part of the actual inventor or inventors, the Commissioner may ... issue a certificate naming only the actual inventor or inventors. 37 C.F.R. § 1.324 (1996). The PTO rule considers the deceptive intent of all actual inventors. While this approach exceeds the literal scope of section 256, it reaches the result of reading section 256 in conjunction with inequitable conduct standards. See also 1 Donald S. Chisum, Patents § 2.04[4][c] (“As between the named and omitted inventors, it would seem most logical to focus on the intentions of the true inventors, that is, the inventorship entity as it is sought to be corrected.”). Returning again to this case, Stark seeks to escape the taint of his alleged co-inventor’s purported misconduct. Stark insists, that where his co-inventors have acted inequitably, the patent should be unenforceable only to the inventors who acted with deceptive intent. 37 C.F.R. § 1.56 (1996) precludes persons guilty of inequitable conduct from enforcing any rights under the patent. Stark argues that while AMI’s inequitable conduct may preclude its enforcement of the patent, Stark remains eligible to enforce the patent. However, in this context, if unenforceable due to inequitable conduct, a patent may not be enforced even by “innocent” co-inventors. One bad apple spoils the entire barrel. Misdeeds of co-inventors, or even a patent attorney, can affect the property rights of an otherwise innocent individual. See Molins PLC v. Textron, Inc., 48 F.3d 1172, 1178 n. 6, 33 U.S.P.Q.2d 1823, 1826 n. 6 (Fed.Cir.1995). In that case, Stark might retain a state law action against AMI, but the patent would not be enforceable by any party. III. For the reasons stated above, this court holds that the district court’s reading of section 256 as limited to cases where both named and unnamed inventors acted without deceptive intent is too restrictive. Section 256 merely precludes any deceptive intention in the inventor that seeks to be restored to a rightful place in the patent. Therefore, as to" } ]

[ { "docid": "16837300", "title": "", "text": "the patent application and concealed the true inventor’s participation from the prosecuting attorneys); PerSeptive, 225 F.3d at 1321-23 (holding patents unenforceable when a group of named inventors misrepresented their relationship with a laboratory to conceal that other people may have participated in inventing the technology). If district courts do not abuse their discretion in holding patents unenforceable when true inventors deliberately exclude co-inventors, a district court can, a fortiori, exercise its discretion to hold a patent unenforceable when a person falsely swears that he invented a device before the PTO. Because AMC and Mr. Bauer attempted to defraud the PTO, the district court was correct in holding the '773 patent unenforceable. II. Litigation Misconduct as an Independent Basis for Attorney’s Fees AMC further argues that the district court erred in finding that this was an exceptional case under 35 U.S.C. § 285 justifying an award of attorney’s fees. AMC does not argue, however, that the award of attorney’s fees under 35 U.S.C. § 285 was improper based on litigation misconduct. In response, Romag asserts that AMC has waived any argument that the district court improperly awarded attorney’s fees based on the independent ground of litigation misconduct and that this court must affirm the district court’s award of attorney’s fees. This court has consistently held that a party waives an argument not raised in its opening brief. SmithKline Beecham Corp. v. Apotex Corp., 439 F.3d 1312, 1319 (Fed.Cir.2006); Becton Dickinson & Co. v. C.R. Bard, Inc., 922 F.2d 792, 800 (Fed.Cir.1990). However, the court maintains discretion to address an argument not properly raised in the opening brief if disregarding the argument would result in an unfair procedure. SmithKline Beecham, 439 F.3d at 1320 n. 9; Becton Dickinson, 922 F.2d at 800. AMC indeed did not argue in its opening brief or even in its reply brief that the district court erred in awarding attorney’s fees under 35 U.S.C. § 285 based on litigation misconduct. Moreover, AMC’s failure does not present a case in which this court should address the issue to remedy an unfair procedure. AMC clearly understood the issue, but" }, { "docid": "17831667", "title": "", "text": "enforceable patent in this case. VI The district court concluded that it could not “substitute Dr. Weiner as the sole inventor on the patent” because “Larry and Darrel [sic] Vincent as named inventors engaged in inequitable conduct before the PTO .... ” Frank’s Casing, No. 98-0254, slip op. at 50. Nothing in the statute governing a court’s power to correct inventorship, 35 U.S.C. § 256, however, prevents a court from correcting the inventorship of an unenforceable patent. On this record, we agree with the district court that Shaunfield was properly named as an inventor on the patent. However, it is unclear whether the district court held that the Vincents should or should not be named as inventors. Therefore, we remand to the district court for the limited purpose of determining the correct inven-torship of the '063 patent if Frank’s wishes to. pursue its claim for correction of inven-torship. VII Cross Appellants, Gulfstream Rental Tools, Inc. and Offshore Energy Services, Inc. (collectively, “Gulfstream”) and Connection Technology, Ltd. and Tong Specialty, Inc. (collectively, “Connection”) urge that the district court erred in failing to declare this an exceptional case and award attorney fees, as permitted by 35 U.S.C. § 285. Gulfstream and Connection allege that the district court applied the wrong legal standard when determining that this was not an exceptional case by not considering the Vincents’ inequitable conduct before the PTO when making its determination. Section 285 is unique to patent law and we have held, as Connection points out, that “inequitable conduct is a substantive patent issue that must be taken into consideration in determinations under 35 U.S.C. § 285.” Pharmacia & Upjohn Co. v. Mylan Pharms., Inc., 182 F.3d 1356, 1359, 51 USPQ2d 1466, 1468 (Fed.Cir.1999). Connection alleges that the district court did not follow the Phar-macia & Upjohn standard. But the district court cited and quoted this exact holding from Pharmacia & Upjohn in its ruling denying the motion for attorney fees. Frank’s Casing, No. 98-0254, slip op. at 4. Thus, the district court did not apply an improper standard or fail to consider the Vincents’ inequitable conduct. Gulfstream" }, { "docid": "16837285", "title": "", "text": "notice and a full and fair hearing to address Romag’s motion for attorney’s fees based on Mr. Bauer’s inequitable conduct and AMC’s litigation misconduct. C. Inventorship AMC next argues that the district court erred by failing to determine inventorship under the standards of 35 U.S.C. § 102(f) when finding that AMC committed inequitable conduct. According to AMC, “an inequitable conduct finding based upon an alleged false oath of inventorship necessarily requires that the issue of inventorship first be determined.” Appellant AMC’s Br. 28. We review the meaning of a patent statute without deference as a question of law. See In re McGrew, 120 F.3d 1236, 1237-38 (Fed.Cir. 1997). AMC’s argument is not supported by this court’s decisions. We have held that when named inventors deliberately conceal a true inventor’s involvement, the applicants have committed inequitable conduct and the patent is unenforceable even as to an innocent co-inventor. Frank’s Casing Crew & Rental Tools, Inc. v. PMR Techs., Ltd., 292 F.3d 1363, 1376-77 (Fed.Cir.2002). In Frank’s Casing, this court held that the named inventors committed inequitable conduct by deliberately excluding an innocent co-inventor from their patent application. Id. at 1376. The court explained that “ ‘if unenforceable due to inequitable conduct, a patent may not be enforced even by “innocent” co-inventors. One bad apple spoils the entire barrel. Misdeeds of co-inventors, or even a patent attorney, can affect the property rights of an otherwise innocent individual.’ ” Id. at 1337 (quoting Stark v. Advanced Magnetics, Inc., 119 F.3d 1551, 1556 (Fed.Cir.1997)). Accordingly, this court sustained the district court’s holding of unenforceability. Id. The court, however, remanded the case “for the limited purpose of determining the correct inventorship” because an action under 35 U.S.C. § 256 did not “prevent[ ] a court from correcting the inventorship of an unenforceable patent.” Id. at 1377 (alteration added). As in Frank’s Casing, the district court here had no obligation to resolve inventorship for the purposes of holding the patent unenforceable. If Mr. Bauer— as the sole named inventor — deliberately misrepresented that he invented the '773 patent’s fastener to the PTO, his deceit would “spoilt]" }, { "docid": "17831665", "title": "", "text": "the '063 patent was unenforceable because of the Vincents’ inequitable conduct before the PTO in omitting Weiner as an inventor. We thus sustain the district court’s holding as to inequitable conduct. V Frank’s is the assignee of Weiner’s interest in the '063 patent, and in its cross-appeal seeks to vest enforceable rights to the '063 patent in Weiner alone. Frank’s urges that the district court erred in declining to order that the '063 patent be corrected to reflect that Weiner was the sole true inventor and in holding the patent unenforceable because of acts committed by the Vincents. Frank’s urges that because the Vincents were not true inventors of the '063 patent, their conduct cannot render the patent unenforceable. However, it was the Vincents who sought a patent on the invention, regardless of whose invention it was. Thus, their inequitable conduct during prosecution of the application leading to the patent renders the patent unenforceable, just as the conduct of an attorney who participates in the prosecution of a patent application may render a patent unenforceable. We have explained that “if unenforceable due to inequitable conduct, a patent may not be enforced even by ‘innocent’ co-inventors. One bad apple spoils the entire barrel. Misdeeds of co-inventors, or even a patent attorney, can affect the property rights of an otherwise innocent individual.” Stark v. Advanced Magnetics, Inc., 119 F.3d 1551, 1556, 43 USPQ2d 1321, 1325 (Fed.Cir.1997). PMR urges that Weiner cannot be tainted by the Vincents’ conduct because the “one bad apple” rule only applies “where all the apples in the barrel are true inventors (or their attorneys or agents).” Appellants’ Opening Brief at 41. We disagree. This is not a situation in which the patent would have issued without participation by the wrongdoers. If not for the Vincents, the '063 patent never would have issued; Weiner made no claim of inventor-ship until 1998. In such circumstances, the Stark rule still applies, and the '063 patent is unenforceable due to that conduct. Thus, because of the Vincents’ inequitable conduct the '063 patent is unenforceable, and Frank’s cannot obtain any rights to an" }, { "docid": "2025731", "title": "", "text": "reading of the statute is not likely to allow an avowedly deceptive inventive entity to correct a misjoinder without any penalty for its deception. This hypothetical situation would call on the Commissioner or a court to determine whether the listed inventive entity committed inequitable conduct in filing a false oath. See 35 U.S.C. § 115 (requiring that an applicant for a patent “shall make oath that he believes himself to be the original and first inventor”); Burroughs Wellcome Co. v. Barr Lab., Inc., 40 F.3d 1223, 1227, 32 U.S.P.Q.2d 1915, 1918 (Fed.Cir.1994) (patent may be unenforceable for inequitable conduct when any co-inventors are omitted with deceptive intent). The standards for inequitable conduct are not likely to permit enforcement of any patent procured by deceiving the United States Patent and Trademark Office (PTO). See, e.g., Glaverbel Societe Anonyme v. Northlake Mktg. & Supply, Inc., 45 F.3d 1550, 1556-57, 33 U.S.P.Q.2d 1496, 1500 (Fed.Cir.1995). The PTO’s rules implementing section 256 also read the section in conjunction with rules governing inequitable conduct. Specifically, the PTO rule states: Whenever a patent is issued and it appears that the correct inventor or inventors were not named through error without deceptive intention on the part of the actual inventor or inventors, the Commissioner may ... issue a certificate naming only the actual inventor or inventors. 37 C.F.R. § 1.324 (1996). The PTO rule considers the deceptive intent of all actual inventors. While this approach exceeds the literal scope of section 256, it reaches the result of reading section 256 in conjunction with inequitable conduct standards. See also 1 Donald S. Chisum, Patents § 2.04[4][c] (“As between the named and omitted inventors, it would seem most logical to focus on the intentions of the true inventors, that is, the inventorship entity as it is sought to be corrected.”). Returning again to this case, Stark seeks to escape the taint of his alleged co-inventor’s purported misconduct. Stark insists, that where his co-inventors have acted inequitably, the patent should be unenforceable only to the inventors who acted with deceptive intent. 37 C.F.R. § 1.56 (1996) precludes persons guilty of" }, { "docid": "17831664", "title": "", "text": "as to whether the alleged misconduct meets threshold levels of materiality and intent to deceive. Id. at 1318-19, 56 USPQ2d at 1003. Under the clear and convincing evidence standard, the district court did not err in finding that the Vin-cents engaged in inequitable conduct. The district court’s holding on inequitable conduct further appears to have been partly based on the Vincents’ conduct visa-vis Shaunfield. The district court stated that the Vincents’ “pattern of conduct continued through the additional and separate attempts to omit John Shaunfield from participation in the patent .... ” Frank’s Casing, No. 98-0254, slip op. at 45. The PTO had found that this conduct did not “rise to the level of gross negligence or bad faith such as to support a finding of inequitable conduct.” However, the main thrust of the district court’s analysis was devoted to the Vin-cents’ conduct in acquiring patent rights in their own names and Shaunfield’s while excluding Weiner. We are convinced that even without any misconduct with respect to Shaunfield, the district court would have concluded that the '063 patent was unenforceable because of the Vincents’ inequitable conduct before the PTO in omitting Weiner as an inventor. We thus sustain the district court’s holding as to inequitable conduct. V Frank’s is the assignee of Weiner’s interest in the '063 patent, and in its cross-appeal seeks to vest enforceable rights to the '063 patent in Weiner alone. Frank’s urges that the district court erred in declining to order that the '063 patent be corrected to reflect that Weiner was the sole true inventor and in holding the patent unenforceable because of acts committed by the Vincents. Frank’s urges that because the Vincents were not true inventors of the '063 patent, their conduct cannot render the patent unenforceable. However, it was the Vincents who sought a patent on the invention, regardless of whose invention it was. Thus, their inequitable conduct during prosecution of the application leading to the patent renders the patent unenforceable, just as the conduct of an attorney who participates in the prosecution of a patent application may render a patent unenforceable." }, { "docid": "16837287", "title": "", "text": "the entire barrel,” leaving the '773 patent unenforceable. Stark, 119 F.3d at 1556 (alteration added). The only substantive difference between this case and Frank’s Casing is that we have no reason here to remand to the district to resolve inventorship as no party has sought to correct inventorship under 35 U.S.C. § 256. Accordingly, the district court did not err by addressing inequitable conduct and unenforceability without resolving inventorship. D. Inequitable Conduct on the Merits AMC also challenges the merits of the district court’s inequitable conduct finding. According to AMC, the district court erred by relying on Mr. Riceman’s “uncorroborated and hearsay testimony” to infer Mr. Bauer’s intent to deceive. Appellant AMC’s Br. 45. “We review the district court’s inequitable conduct determination under a two-tier standard; we review the underlying factual determination for clear error, but we review the ultimate decision as to inequitable conduct for an abuse of discretion.” Star Scientific, Inc. v. R.J. Reynolds Tobacco Co., 537 F.3d 1357, 1365 (Fed.Cir.2008). Because we find that the evidence AMC proffered independently supports the district court’s findings on materiality and intent, we hold that the district court did not clearly err in its factual determinations. We further hold that the district court did not abuse its discretion in finding the '773 patent unenforceable based on Mr. Bauer’s inequitable conduct. Patent applicants “have a duty to prosecute patent applications in the [PTO] with candor, good faith, and honesty.” Honeywell Int’l Inc. v. Universal Avionics Sys. Corp., 488 F.3d 982, 999 (Fed.Cir.2007) (alteration added); see also 37 C.F.R. § 1.56(a) (2009). A party asserting inequitable conduct must prove by clear and convincing evidence that a patent applicant breached that duty by (1) “fail[ing] to disclose material information or submitting] materially false information to the PTO” with (2) “intent to mislead or deceive the examiner.” McKesson Info. Solutions, Inc. v. Bridge Med., Inc., 487 F.3d 897, 913 (Fed.Cir.2007) (internal quotation marks omitted) (alterations added). “The required showings of materiality and intent are separate, and a showing of materiality alone does not give rise to a presumption of intent to deceive.” Praxair, Inc. v." }, { "docid": "16837298", "title": "", "text": "as the inventor because of Mr. Riceman’s consulting agreement with RRC. Id. at *6-7 (citing to Mr. Riceman’s deposition). In its brief analysis of intent, the district court only referred to Mr. Bauer’s interest in “fend[ing] off looming competition in the market by claiming the '773 design for himself.” Id. at *10 (alteration added). To the extent that the district court relied on Mr. Riceman’s testimony to explain Mr. Bauer’s motives for listing himself as the '773 patent inventor, the district court erred. However, we find this error harmless because AMC’s own evidence, including fabricated drawings and contradictory testimony, provided a sufficient basis on which to infer that Mr. Bauer intended to deceive the PTO. See Praxair, 543 F.3d at 1318 (finding a district court’s erroneous reliance on a fact with limited relevance to intent harmless error). Although we disagree with the district court on the reliability of Mr. Riceman’s testimony, the court needed to weigh conflicting testimony and based its finding of inequitable conduct in part on the witnesses’ credibility. As an appellate court, we cannot reweigh witnesses’ credibility. See Liquid Dynamics Corp. v. Vaughan Co., Inc., 449 F.3d 1209, 1227 (Fed.Cir.2006) (refusing to reweigh a district court’s credibility findings in an inequitable conduct appeal); LNP Eng’g Plastics, Inc. v. Miller Waste Mills, Inc., 275 F.3d 1347, 1361 (Fed.Cir. 2001) (same). We review a district court’s materiality and intent findings for clear error, and we find no clear error here. Star Scientific, 537 F.3d at 1365. In addition to upholding the district court’s materiality and intent findings, we hold that the district court did not abuse its discretion in finding that Mr. Bauer’s deceit justified holding the '773 patent unenforceable. When an applicant falsely claims that he has invented a device, he can hardly claim the right to enforce a patent to which he was never entitled. We have upheld district court holdings of unenforceability when the named inventors acted with deceptive intent to exclude a true inventor. See Frank’s Casing, 292 F.3d at 1375-77 (holding a patent unenforceable when two named inventors deliberately excluded a true inventor from" }, { "docid": "16321616", "title": "", "text": "is also error.” FSU responds that ABI has not pointed to any error in the court’s findings on materiality or intent, leaving it undisputed that the PTO was deprived of material information concerning inventorship by ABI’s inequitable conduct in failing to disclose to its patent attorney Tao’s connection to FSU. We agree with ABI that’inequitable conduct did not occur here. The district court’s conclusion of inequitable conduct was based on its finding that Soon-Shiong and Desai failed to disclose to their attorney that Tao formerly worked at FSU. Since we have concluded that the FSU scientists were not inventors, Tao’s having worked at FSU was not material to any issue of patentability in this case. In practice, patent examiners do not normally engage in determination of the respective contributions of the individual members of an inventive entity as part of making an ex parte examination; rather, it is the responsibility of the applicants and their attorneys to ensure that the inventors named in a patent application are the only true inventors. The patent examiner assigned to ABI’s application concluded that the three compounds claimed in ABI’s issued patent were novel and non-obvious in view of the prior art, including several of Holton’s earlier patents. Neither the district court nor FSU explains how the disclosure of Tao’s former association with Holton would have affected the examiner’s conclusion of patentability. Inventorship is indeed relevant to pat-entability under 35 U.S.C. § 102(f), and patents have in the past been held unenforceable for failure to correctly name inventors in cases where the named inventors acted in bad faith or with deceptive intent. See, e.g., Frank’s Casing. Crew & Rental Tools, Inc. v. PMR Techs., Ltd., 292 F.3d 1363, 63 USPQ2d 1065 (Fed.Cir.2002) (holding a patent unenforceable due to inequitable conduct where two named inventors deliberately concealed a true inventor’s involvement in the conception of the invention and “engaged in a pattern of intentional conduct designed to deceive the attorneys and patent office as to who the true inventors were”); PerSeptive (holding a patent unenforceable where the named inventors had intended to deceive the PTO," }, { "docid": "17831646", "title": "", "text": "invention,’ ” id. at 33, and that Weiner proved his claim [of inventorship] by clear and convincing evidence ....” Id. at 41. However, even though the court found that “Dr. Weiner is an innocent co-inventor that should be added to the '0145 and '063 patents,” id. at 49, the court denied Frank’s request to correct inventorship to name Weiner as the sole inventor or as a co-inventor, because the court found Shaunfield was also an inventor of the '063 patent. Id. at 49-50. The court also held that the '063 patent was unenforceable because the Vincents engaged in inequitable conduct by failing to name Weiner as an inventor. The court found that the Vincents deliberately omitted Weiner from the patent and acted to hide Weiner’s involvement in the invention throughout the patent prosecution process, and that the Vincents “deliberately misrepresented the material facts surrounding the conception of the invention underlying the '0145 and '063 patents from the incep tion of the patent process up to and through the hearing held before this Court,” id. at 45, and that the Vincents “engaged in deliberate inequitable conduct in failing to include Dr. Weiner on either the '045 [sic] or '063 Re-issue patents and in their actions surrounding John Shaun-field and the patent.” Id. at 49. Accordingly, the court held that the '145 and '063 patents were unenforceable. Id. at 48. On July 24, 2000, the district court entered final judgment under Rule 54(b) of the Federal Rules of Civil Procedure. On June 27, 2000, the court denied Frank’s motion to declare the case an exceptional case and award attorney fees from PMR under 35 U.S.C. § 285, because “PMR’s conduct was [not] wholly frivolous, vexatious, or in bad faith.” Frank’s Casing, No. 98-0254, slip op. at 4. PMR appeals the district court’s personal jurisdiction ruling, its ruling that Weiner was an inventor, and its ruling that the patent is unenforceable. Cross Appellants Frank’s, et al., the assignees of Weiner’s claimed interest in the patent, appeal the district court’s ruling that the patent is unenforceable and seek to correct inven-torship to name Weiner" }, { "docid": "17831647", "title": "", "text": "45, and that the Vincents “engaged in deliberate inequitable conduct in failing to include Dr. Weiner on either the '045 [sic] or '063 Re-issue patents and in their actions surrounding John Shaun-field and the patent.” Id. at 49. Accordingly, the court held that the '145 and '063 patents were unenforceable. Id. at 48. On July 24, 2000, the district court entered final judgment under Rule 54(b) of the Federal Rules of Civil Procedure. On June 27, 2000, the court denied Frank’s motion to declare the case an exceptional case and award attorney fees from PMR under 35 U.S.C. § 285, because “PMR’s conduct was [not] wholly frivolous, vexatious, or in bad faith.” Frank’s Casing, No. 98-0254, slip op. at 4. PMR appeals the district court’s personal jurisdiction ruling, its ruling that Weiner was an inventor, and its ruling that the patent is unenforceable. Cross Appellants Frank’s, et al., the assignees of Weiner’s claimed interest in the patent, appeal the district court’s ruling that the patent is unenforceable and seek to correct inven-torship to name Weiner as the sole inventor on the '063 patent. Cross-Appellants, Gulfstream, et al. and Connection Technology Ltd., et al. appeal the district court’s denial of attorney fees under section 285. DISCUSSION I We have jurisdiction over this appeal pursuant to 28 U.S.C. § 1295(a)(1). We review questions of personal jurisdiction without deference. Dainippon Screen Mfg. Co. v. CFMT, Inc., 142 F.3d 1266, 1269, 46 USPQ2d 1616, 1619 (Fed.Cir. 1998). “Disputed facts underlying this legal determination, however, are reviewed for clear error.” Id. Inventorship is a question of law which we review without deference, although we review for clear error a district court’s factual findings upon which such a determination is based. Ethicon, Inc. v. U.S. Surgical Corp., 135 F.3d 1456, 1460, 45 USPQ2d 1545, 1547 (Fed.Cir.1998). We review a district court’s determination of inequitable conduct for abuse of discretion. PerSeptive Biosystems, Inc. v. Pharmacia Biotech, Inc., 225 F.3d 1315, 1319, 56 USPQ2d 1001, 1006 (Fed.Cir.2000). In reviewing a determination of inequitable conduct, we review for clear error the district court’s factual findings as to whether the" }, { "docid": "9803539", "title": "", "text": "a type described by the patents as “perfu-sive” chromatography. The ’270 patent claims a method for practicing perfusive chromatography, the ’989 patent claims a particle used for perfusive chromatography, and the ’042 patent claims a matrix of particles used for perfusive chromatography. All three patents list the same inventors, Dr. Noubar Afeyan, Professor Fred Regnier, and Dr. Robert Dean. In response to the PerSeptive allegations, Pharmacia raised, among others, the defenses that the patents were invalid'for failure to name the correct inventors, and that they were unenforceable due to inequitable conduct practiced by the named inventors during prosecution. In January 1996, the district court ruled on cross-motions for summary judgment on the question of whether the patents were invalid for failure to list the correct inventive entity. See PerSeptive Biosystems, Inc. v. Pharmacia Biotech, Inc., No. 93-12237, slip op. at 32-33 (D.Mass. Jan. 9, 1996) (“PerSeptive I”). In that decision, the district court concluded that there was “undisputed, clear and convincing evidence” that the inventorship was incorrect, but declined to hold the patents invalid. The district court reasoned that Pharmacia had not shown an absence of genuinely disputed facts regarding whether the named inventors had omitted the unnamed inventors with deceptive intent, thereby precluding the correction of inventorship under the then-current understanding of 35 U.S.C. § 256 (1994). See PerSeptive I, slip op. at 31 (“[T]here remains a disputed issue of fact as to the named inventors’ state of mind, preventing the court from ordering the correction of the patent without hearing.”). Accordingly, the court invited PerSeptive to move, under section 256, to correct the inventorship of the patents. See id. In March 1997, after a ten-day hearing, the district court denied PerSeptive’s motion to correct inventorship, basing its conclusion on a pattern of false statements and misrepresentations by the named inventors to the PTO regarding the inven-torship and timing of the invention. See PerSeptive Biosystems, Inc. v. Pharmacia Biotech, Inc., No. 93-12237, slip op. at 126 (D.Mass. Mar. 31, 1997) (“PerSeptive II”). Soon after that ruling, the Federal Circuit decided Stark v. Advanced Magnetics, Inc., 119 F.3d 1551, 43" }, { "docid": "16837299", "title": "", "text": "we cannot reweigh witnesses’ credibility. See Liquid Dynamics Corp. v. Vaughan Co., Inc., 449 F.3d 1209, 1227 (Fed.Cir.2006) (refusing to reweigh a district court’s credibility findings in an inequitable conduct appeal); LNP Eng’g Plastics, Inc. v. Miller Waste Mills, Inc., 275 F.3d 1347, 1361 (Fed.Cir. 2001) (same). We review a district court’s materiality and intent findings for clear error, and we find no clear error here. Star Scientific, 537 F.3d at 1365. In addition to upholding the district court’s materiality and intent findings, we hold that the district court did not abuse its discretion in finding that Mr. Bauer’s deceit justified holding the '773 patent unenforceable. When an applicant falsely claims that he has invented a device, he can hardly claim the right to enforce a patent to which he was never entitled. We have upheld district court holdings of unenforceability when the named inventors acted with deceptive intent to exclude a true inventor. See Frank’s Casing, 292 F.3d at 1375-77 (holding a patent unenforceable when two named inventors deliberately excluded a true inventor from the patent application and concealed the true inventor’s participation from the prosecuting attorneys); PerSeptive, 225 F.3d at 1321-23 (holding patents unenforceable when a group of named inventors misrepresented their relationship with a laboratory to conceal that other people may have participated in inventing the technology). If district courts do not abuse their discretion in holding patents unenforceable when true inventors deliberately exclude co-inventors, a district court can, a fortiori, exercise its discretion to hold a patent unenforceable when a person falsely swears that he invented a device before the PTO. Because AMC and Mr. Bauer attempted to defraud the PTO, the district court was correct in holding the '773 patent unenforceable. II. Litigation Misconduct as an Independent Basis for Attorney’s Fees AMC further argues that the district court erred in finding that this was an exceptional case under 35 U.S.C. § 285 justifying an award of attorney’s fees. AMC does not argue, however, that the award of attorney’s fees under 35 U.S.C. § 285 was improper based on litigation misconduct. In response, Romag asserts that" }, { "docid": "17831645", "title": "", "text": "the '063 patent rendered PMR subject to “specific jurisdiction” under Louisiana law. On January 25, 1999, after the district court’s ruling, PMR filed an amended Answer, Class-Action CounterClaim, and First Amended Complaint in the Western District of Louisiana asserting a new patent infringement class action claim, joining six additional defendants as named defendants and seeking to have them certified as representatives of a class of unnamed defendants. (No such certification occurred.) A bench trial was held on November 8-12 and 15-17, 1999. On January 24, 2000, the district court filed findings of fact and conclusions of law. It “[found] pursuant to 35 U.S.C. § 256, Dr. Weiner is an innocent co-inventor that should be added to the '0145 and '063 patents.” Frank’s Casing, No. 98-0254, slip op. at 49. The district court “[found] Dr. Weiner to have been an inventor or co-inventor of the TMS 1000,” id. at 44; that “the TMS 1000[was] the subject of the '0145 and the '063 patents,” id. at 43; and therefore concluded that ‘Weiner presented the ‘conception of the invention,’ ” id. at 33, and that Weiner proved his claim [of inventorship] by clear and convincing evidence ....” Id. at 41. However, even though the court found that “Dr. Weiner is an innocent co-inventor that should be added to the '0145 and '063 patents,” id. at 49, the court denied Frank’s request to correct inventorship to name Weiner as the sole inventor or as a co-inventor, because the court found Shaunfield was also an inventor of the '063 patent. Id. at 49-50. The court also held that the '063 patent was unenforceable because the Vincents engaged in inequitable conduct by failing to name Weiner as an inventor. The court found that the Vincents deliberately omitted Weiner from the patent and acted to hide Weiner’s involvement in the invention throughout the patent prosecution process, and that the Vincents “deliberately misrepresented the material facts surrounding the conception of the invention underlying the '0145 and '063 patents from the incep tion of the patent process up to and through the hearing held before this Court,” id. at" }, { "docid": "16321617", "title": "", "text": "to ABI’s application concluded that the three compounds claimed in ABI’s issued patent were novel and non-obvious in view of the prior art, including several of Holton’s earlier patents. Neither the district court nor FSU explains how the disclosure of Tao’s former association with Holton would have affected the examiner’s conclusion of patentability. Inventorship is indeed relevant to pat-entability under 35 U.S.C. § 102(f), and patents have in the past been held unenforceable for failure to correctly name inventors in cases where the named inventors acted in bad faith or with deceptive intent. See, e.g., Frank’s Casing. Crew & Rental Tools, Inc. v. PMR Techs., Ltd., 292 F.3d 1363, 63 USPQ2d 1065 (Fed.Cir.2002) (holding a patent unenforceable due to inequitable conduct where two named inventors deliberately concealed a true inventor’s involvement in the conception of the invention and “engaged in a pattern of intentional conduct designed to deceive the attorneys and patent office as to who the true inventors were”); PerSeptive (holding a patent unenforceable where the named inventors had intended to deceive the PTO, and the falsehoods and omissions to the PTO were material to inventorship). Nonetheless, FSU cites no precedent for a patent being held unenforceable simply because an applicant did not disclose his former employers to the PTO. Who Tao formerly worked for is more relevant to ownership than to patentability. Rule 56 imposes a duty to disclose information material to patentability. There is no evidence that ABI withheld any information material to patentability. Finding no other evidence in the record to support a holding of inequitable conduct, we vacate the district court’s conclusion. We have considered FSU’s other arguments, and find them unpersuasive. •CONCLUSION The district court erred in its determination of inventorship. Tao, Soon-Shiong, and Desai are the true and rightful coin-ventors of the subject matter in the '653 patent, and Holton, Nadizadeh, Yang, and Sandford are not coinventors. The district court also erred in declaring the '653 patent unenforceable for inequitable conduct. The court’s decision is therefore AFFIRMED-IN-PART, REVERSED-IN-PART, and VACATED-IN-PART. COSTS Each party to bear its own costs. . \"Taxol” is Bristol Myers" }, { "docid": "17831631", "title": "", "text": "DYK, Circuit Judge. PMR Technologies LTD and PMR Services, Inc. (collectively, “PMR”) appeal a declaratory judgment entered by the United States District Court for the Western District of Louisiana. The court held that it had personal jurisdiction over PMR; held that the named inventors of United States Patent RE 34,063 (the “'063 patent”) had failed to list a true inventor (Peter Weiner (‘Weiner”)); and held that the '063 patent was unenforceable due to inequitable conduct by named inventors in failing to name Weiner as an inventor. Frank’s Casing Crew & Rental Tools, Inc. v. PMR Techs. Ltd, Civ. No. 98-0254 (W.D.La., January 24, 2000). Cross-appellants, Frank’s Casing Crew & Rental Tools, Inc., et al. and Tubular Makeup Technology, Inc., et al. (collectively, “Frank’s”), the assignees of Weiner’s claimed interest in the patent, appeal the district court’s decision holding the '063 patent unenforceable and declining to correct inventorship of the patent to name Weiner as the sole inventor of the patent. Cross-appellants, Connection Technology, Ltd., et al. and Gulfstream Rental Tools, Inc., et al. appeal the district court’s decision declining to award them attorney fees pursuant to 35 U.S.C. § 285. Because PMR waived its personal jurisdiction defense by filing claims against new defendants in the United Sates District Court for the Western District of Louisiana; because the district court’s finding (that a true inventor of at least one of the '063 patent claims was not named on the patent) was not erroneous; because the district court did not commit reversible error in concluding that the '063 patent was unenforceable because of inequitable conduct during its prosecution; and because the district court did not abuse its discretion in denying attorney fees, we affirm those portions of the district court’s holding. We remand to the district court for the limited purpose of determining the correct inventorship of the '063 patent. I PMR is the assignee of the '063 patent, which is directed to a method and apparatus for monitoring torque while connecting threaded tubular goods. The '063 patent is a reissue of United States Patent 4,738,-145 (the “'145 patent”), which issued on" }, { "docid": "16837284", "title": "", "text": "attorney’s fees based on Mr. Bauer’s inequitable conduct represented the parties’ second time addressing Mr. Bauer’s claim to inventorship. AMC first had the opportunity to address inventorship when it moved for summary judgment against Romag’s “unclean hands” affirmative defense and 35 U.S.C. § 102(f) counterclaim. See AMC III, 2007 WL 1552395, at *2-5. AMC does not dispute that it submitted evidence of Mr. Bauer’s alleged inventor-ship at summary judgment and at trial. Rather, AMC complains that it never had an opportunity to rebut Mr. Riceman’s deposition testimony at summary judgment, at trial, or during the hearing on attorney’s fees and claims that the district court relied on Mr. Riceman’s testimony to resolve inventorship. Contrary to AMC’s argument, the district court did not resolve inventorship, making AMC’s due process arguments irrelevant. AMC’s arguments miss the mark because they fault the district court for failing to address an issue not before it — inventorship under 35 U.S.C. § 102(f). As explained below, the district court had no obligation to address inventorship. Accordingly, the district court provided AMC notice and a full and fair hearing to address Romag’s motion for attorney’s fees based on Mr. Bauer’s inequitable conduct and AMC’s litigation misconduct. C. Inventorship AMC next argues that the district court erred by failing to determine inventorship under the standards of 35 U.S.C. § 102(f) when finding that AMC committed inequitable conduct. According to AMC, “an inequitable conduct finding based upon an alleged false oath of inventorship necessarily requires that the issue of inventorship first be determined.” Appellant AMC’s Br. 28. We review the meaning of a patent statute without deference as a question of law. See In re McGrew, 120 F.3d 1236, 1237-38 (Fed.Cir. 1997). AMC’s argument is not supported by this court’s decisions. We have held that when named inventors deliberately conceal a true inventor’s involvement, the applicants have committed inequitable conduct and the patent is unenforceable even as to an innocent co-inventor. Frank’s Casing Crew & Rental Tools, Inc. v. PMR Techs., Ltd., 292 F.3d 1363, 1376-77 (Fed.Cir.2002). In Frank’s Casing, this court held that the named inventors committed inequitable" }, { "docid": "16837286", "title": "", "text": "conduct by deliberately excluding an innocent co-inventor from their patent application. Id. at 1376. The court explained that “ ‘if unenforceable due to inequitable conduct, a patent may not be enforced even by “innocent” co-inventors. One bad apple spoils the entire barrel. Misdeeds of co-inventors, or even a patent attorney, can affect the property rights of an otherwise innocent individual.’ ” Id. at 1337 (quoting Stark v. Advanced Magnetics, Inc., 119 F.3d 1551, 1556 (Fed.Cir.1997)). Accordingly, this court sustained the district court’s holding of unenforceability. Id. The court, however, remanded the case “for the limited purpose of determining the correct inventorship” because an action under 35 U.S.C. § 256 did not “prevent[ ] a court from correcting the inventorship of an unenforceable patent.” Id. at 1377 (alteration added). As in Frank’s Casing, the district court here had no obligation to resolve inventorship for the purposes of holding the patent unenforceable. If Mr. Bauer— as the sole named inventor — deliberately misrepresented that he invented the '773 patent’s fastener to the PTO, his deceit would “spoilt] the entire barrel,” leaving the '773 patent unenforceable. Stark, 119 F.3d at 1556 (alteration added). The only substantive difference between this case and Frank’s Casing is that we have no reason here to remand to the district to resolve inventorship as no party has sought to correct inventorship under 35 U.S.C. § 256. Accordingly, the district court did not err by addressing inequitable conduct and unenforceability without resolving inventorship. D. Inequitable Conduct on the Merits AMC also challenges the merits of the district court’s inequitable conduct finding. According to AMC, the district court erred by relying on Mr. Riceman’s “uncorroborated and hearsay testimony” to infer Mr. Bauer’s intent to deceive. Appellant AMC’s Br. 45. “We review the district court’s inequitable conduct determination under a two-tier standard; we review the underlying factual determination for clear error, but we review the ultimate decision as to inequitable conduct for an abuse of discretion.” Star Scientific, Inc. v. R.J. Reynolds Tobacco Co., 537 F.3d 1357, 1365 (Fed.Cir.2008). Because we find that the evidence AMC proffered independently supports the district" }, { "docid": "2025730", "title": "", "text": "district court erred by limiting the word “error” to honest mistakes. Under this incorrect reading, the district court barred any action to correct an alleged misjoinder which included an allegation of deception. Because Stark alleges that AMI deliberately deceived him and intentionally excluded him from his own invention, the district court concluded that these state law allegations could not coexist with a section 256 correction claim. Therefore, the district court ordered Stark to choose between pursuing his fraud-based state claims and his section 256 correction claim. In the event that that ruling prompts Stark to surrender his section 256 claim, AMI’s alleged deception could serve as a shield against an action to correct the alleged fraud. Section 256 does not impose such a dilemma on a professed inventor who was potentially wronged by omission from a patent. Instead, under this court’s reading of the statute, Stark receives at least the opportunity to prove both his status as an actual inventor and the error warranting correction of the patent. This court notes as well that its reading of the statute is not likely to allow an avowedly deceptive inventive entity to correct a misjoinder without any penalty for its deception. This hypothetical situation would call on the Commissioner or a court to determine whether the listed inventive entity committed inequitable conduct in filing a false oath. See 35 U.S.C. § 115 (requiring that an applicant for a patent “shall make oath that he believes himself to be the original and first inventor”); Burroughs Wellcome Co. v. Barr Lab., Inc., 40 F.3d 1223, 1227, 32 U.S.P.Q.2d 1915, 1918 (Fed.Cir.1994) (patent may be unenforceable for inequitable conduct when any co-inventors are omitted with deceptive intent). The standards for inequitable conduct are not likely to permit enforcement of any patent procured by deceiving the United States Patent and Trademark Office (PTO). See, e.g., Glaverbel Societe Anonyme v. Northlake Mktg. & Supply, Inc., 45 F.3d 1550, 1556-57, 33 U.S.P.Q.2d 1496, 1500 (Fed.Cir.1995). The PTO’s rules implementing section 256 also read the section in conjunction with rules governing inequitable conduct. Specifically, the PTO rule states: Whenever" }, { "docid": "17831666", "title": "", "text": "We have explained that “if unenforceable due to inequitable conduct, a patent may not be enforced even by ‘innocent’ co-inventors. One bad apple spoils the entire barrel. Misdeeds of co-inventors, or even a patent attorney, can affect the property rights of an otherwise innocent individual.” Stark v. Advanced Magnetics, Inc., 119 F.3d 1551, 1556, 43 USPQ2d 1321, 1325 (Fed.Cir.1997). PMR urges that Weiner cannot be tainted by the Vincents’ conduct because the “one bad apple” rule only applies “where all the apples in the barrel are true inventors (or their attorneys or agents).” Appellants’ Opening Brief at 41. We disagree. This is not a situation in which the patent would have issued without participation by the wrongdoers. If not for the Vincents, the '063 patent never would have issued; Weiner made no claim of inventor-ship until 1998. In such circumstances, the Stark rule still applies, and the '063 patent is unenforceable due to that conduct. Thus, because of the Vincents’ inequitable conduct the '063 patent is unenforceable, and Frank’s cannot obtain any rights to an enforceable patent in this case. VI The district court concluded that it could not “substitute Dr. Weiner as the sole inventor on the patent” because “Larry and Darrel [sic] Vincent as named inventors engaged in inequitable conduct before the PTO .... ” Frank’s Casing, No. 98-0254, slip op. at 50. Nothing in the statute governing a court’s power to correct inventorship, 35 U.S.C. § 256, however, prevents a court from correcting the inventorship of an unenforceable patent. On this record, we agree with the district court that Shaunfield was properly named as an inventor on the patent. However, it is unclear whether the district court held that the Vincents should or should not be named as inventors. Therefore, we remand to the district court for the limited purpose of determining the correct inven-torship of the '063 patent if Frank’s wishes to. pursue its claim for correction of inven-torship. VII Cross Appellants, Gulfstream Rental Tools, Inc. and Offshore Energy Services, Inc. (collectively, “Gulfstream”) and Connection Technology, Ltd. and Tong Specialty, Inc. (collectively, “Connection”) urge that the" } ]

[ { "docid": "1216780", "title": "", "text": "chloride and diethyl aluminum chloride, to achieve substantially the same result, the production of commercially useful, e.g., isotactic, polypropylene. See Lockheed, supra, 553 F.2d at 80; see also Phillips, supra, 483 F.2d at 879. After a careful review of all the factual and theoretical evidence presented, the Court finds that Dart’s process infringes the ’115 patent. III. LACHES AND ESTOPPEL Laches and estoppel are equitable doctrines enforced in patent cases because the federal patent statutes prescribe no specific period of limitations for a patentee’s initiation of an infringement suit. As a consequence of their basis in equity, the appropriateness of the defenses will be determined in each individual case under its particular facts and circumstances. Wayne-Gossard Corp. v. Sondra, Inc., 434 F.Supp. 1340, 1361 (E.D.Pa.1977), aff’d, 579 F.2d 41 (3d Cir.1978). Furthermore, the decision regarding the applicability of either laches or estoppel rests predominantly with the trial judge in the exercise of his or her sound discretion. See Studiengesellschaft Kohle (SGK) v. Eastman Kodak Co., 616 F.2d 1315 (5th Cir.), cert. denied, 449 U.S. 1014, 101 S.Ct. 573, 66 L.Ed.2d 473 (1980); Advanced Hydraulics, Inc. v. Otis Elevator Co., 525 F.2d 477 (7th Cir.), cert. denied, 423 U.S. 869, 96 S.Ct. 132, 46 L.Ed.2d 99 (1975); Baker Mfg. Co. v. Whitewater Mfg. Co., 430 F.2d 1008 (7th Cir.1970), cert. denied, 401 U.S. 956, 91 S.Ct. 978, 28 L.Ed.2d 240 (1971); Johnson & Johnson v. W.L. Gore & Assoc., Inc., 436 F.Supp. 704 (D.Del.1977). A. Laches To make out a defense of laches, a defendant must establish: (1) that the delay in bringing suit was unreasonable or inexcusable; and (2) that the defendant has been prejudiced by the delay. Advanced Hydraulics, supra; Jenn-Air Corp. v. Penn Ventilator Co., 464 F.2d 48 (3d Cir.1972). The burden of so demonstrating rests with the defendant asserting the defense. Simply to establish that there was a delay is not adequate. In determining what constitutes unreasonable or inexcusable delay, courts have frequently turned to 35 U.S.C. § 286, which restricts the period for which a party may collect damages to the six years prior to the" } ]

[ { "docid": "6105478", "title": "", "text": "of a mass production line of polyimide film and by SKC to operate a pilot line of polyimide film does not prove that Kaneka knew its ’064 Patent was being infringed. Infringement of the ’064 Patent requires sales or production of the patented product within the United States. Power Inte grations, Inc., 711 F.3d at 1371. There is no evidence that this film was being sold anywhere, much less in the United States. Accordingly, the Court finds that the earliest Kaneka knew of Defendants’ infringing activity was in 2006—four years prior to the commencement of this lawsuit—when SKC began shipping polyimide film to its customers for evaluation. Although the presumption of laches does not apply, “[e]limination of the presumption does not mean the patentee precludes the possibility of a laches defense; it does mean, however, that the presumption of laches plays no role in the ultimate decision.” A.C. Aukerman Co. v. R.L. Chaides Const. Co., 960 F.2d 1020, 1038 (Fed.Cir.1992). “The facts of unreasonable delay and prejudice then must be proved and judged on the totality of the evidence presented.” Id. Regarding prejudice, Defendants argue that they invested in additional production lines which they otherwise would not have purchased had Kaneka initiated this lawsuit earlier. (Defendants’ Equitable Defenses Brief at 11.) However, this claim is unsupported by any evidence in the record. Rather, in light of Defendants’ affirmative defense of good-faith belief of non-infringement, it seems more likely that Defendants would not have changed their sales strategy during the pendency of the litigation had it begun earlier. (See Defendants’ Memorandum of Contentions of Fact and Law at 25, “There is, however, significant evidence on SKPI’s good-faith belief that Plaintiffs patents were not infringed and indications that SKPI’s good-faith belief was reasonable and correct,” Doc. No. 563.) Further, Kaneka’s delay in bringing suit was not so unreasonable as to preclude them from any relief. The Court therefore FINDS that the defense of laches does not bar Plaintiffs claims. IV. KANEKA’S MOTION FOR ENTRY OF JUDGMENT, SUPPLEMENTAL DAMAGES, ACCOUNTING, AND PRE-AND POST-JUDGMENT INTEREST The parties raise several issues regarding Kaneka’s Proposed Judgment" }, { "docid": "13375614", "title": "", "text": "reasons why prejudgment interest could be withheld, it did state that prejudgment interest could be refused “where the patent owner has been responsible for undue delay in prosecuting the lawsuit.” General Motors Corp., 461 U.S. at 657, 103 S.Ct. 2058. See, e.g., Crystal Semiconductor Corp. v. TriTech Microelectronics Int’l, Inc., 246 F.3d 1336, 1362 (Fed.Cir.2001) (upholding district court’s refusal to award prejudgment interest based on plaintiffs strategic delay in bringing suit). However, “absent prejudice to the defendants, any delay by [the patentee] does not support the denial of prejudgment interest.” Lummus Indus., Inc. v. DM. & E. Corp., 862 F.2d 267, 275 (Fed.Cir.1988). The record supports an inference that Saint Gobain unduly delayed in bringing suit. Saint Gobain was aware in 2002 that two Chinese glass manufacturers, Fuyao and Xinyi, had entered the market (TR at 469), and that these new competitors were selling after-market windshields with a lip and a bump, similar to the patented products. (TR at 487-88.) Despite this knowl edge, it is undisputed that Saint Gobain waited four years to bring suit against Xinyi. Plaintiffs fail to offer any justification (or even explanation) for this substantial delay. Xinyi became aware of Saint Gobain’s patents in 2005, when it received a copy of the Fuyao complaint, and it could be argued that the prejudice to Xinyi was minimized at that point. Nonetheless, even disregarding the period after Xinyi received the Fuyao complaint, and even affording a reasonable period of time after the discovery of the potential infringers for investigation, Saint Gobain still cannot account for a substantial delay in bringing suit. Under these circumstances, the Court finds that an award of prejudgment interest is not warranted. CONCLUSION For all of the foregoing reasons, Saint Gobain’s motion for enhanced damages, attorney’s fees, and prejudgment interest is GRANTED, in part. Saint Gobain is awarded damages totaling $21,888,030.00 as a 100% enhancement of the jury’s verdict (a doubling of the award) under 35 U.S.C. § 284, and reasonable attorney’s fees totaling $1,951,296.60 under 35 U.S.C. § 285. Saint Gobain is also awarded costs totaling $384,882.99, but is not awarded prejudgment" }, { "docid": "18419003", "title": "", "text": "if any notice of the need to show, satisfaction of [two of the four] elements” of the four-factor test). An appropriate order shall issue. 6. Adjustment of Damages Plaintiff moves the court under Federal Rule of Civil Procedure 59(e) to amend the judgment in this case to award plaintiff damages for defendant’s infringement subsequent to the judgment. (D.I. 272 at 16- 17) The court reserves determination of this issue pending its determination of whether a permanent injunction is appropriate in this case. 7. Prejudgment Interest Plaintiff moves the court to amend the judgment to provide for prejudgment interest based on the average prime rate, compounded annually. (D.I. 272 at 15) Section 35 U.S.C. § 284 provides for the calculation of damages “together with interest ... as fixed by the court.” Prejudgment interest should ordinarily be awarded absent some justification for withholding such an award. See General Motors Corp. v. Devex Corp., 461 U.S. 648, 657, 103 S.Ct. 2058, 76 L.Ed.2d 211 (1983). Defendant asserts that prejudgment interest should be denied in this case because plaintiff unduly delayed bringing its infringement suit. (D.I. 276 at 26) Defendant’s cited authority, Crystal Semiconductor Corp. v. TriTech Microelectronics Intern., Inc., 246 F.3d 1336, 1362 (Fed. Cir.2001), does not support defendant’s proposition that prejudgment interest should be denied based upon this delay. Further, defendant cites no evidence or examples of the alleged prejudice it suffered as the result of plaintiffs failure to bring suit until November 2003. (D.I. 276 at 26) Bare allegations can not suffice to counter to controlling authority stating that prejudgment interest ordinarily should be awarded. See IPPV Enterprises, LLC. v. EchoStar Communications Corp., No. Civ. A. 99-577, 2003 WL 723260, *3 (D.Del. Feb.27, 2003) (citing General Motors Corp. v. Devex Corp., 461 U.S. 648, 655-57, 103 S.Ct. 2058, 76 L.Ed.2d 211 (1983)). Defendant further argues that if prejudgment interest is awarded, the U.S. Treasury Bill (“T-Bill”) rate is most appropriate. (D.I. 276 at 27-28) Defendant reasons that plaintiff has not demonstrated that a higher interest rate is necessary to compensate plaintiff for the economic loss caused by infringement. (Id. at 28)" }, { "docid": "13375612", "title": "", "text": "patent litigation, under a district court’s inherent power to impose sanctions, “in cases involving bad faith.” Takeda Chem. Indus. v. Mylan Labs., Inc., 549 F.3d 1381, 1387 (Fed.Cir. 2008). While the Court makes no determination as to bad faith, Xinyi’s willful infringement and vexatious litigation conduct may very well have supported such an award. See id. Because Plaintiffs likely would have been entitled to such costs and expenses, the costs actually sought become even more reasonable. The Court hereby awards Plaintiffs $348,882.99 in costs and expenses. VI. Prejudgment Interest Section 284 of the Patent Act indicates that a court should award interest in patent cases after a finding of infringement. 35 U.S.C. § 284. The Supreme Court has held “that prejudgment interest should be awarded under § 284 absent some justification for withholding such an award.” General Motors Corp., 461 U.S. at 657, 103 S.Ct. 2058. The interest rate used to calculate prejudgment interest and the method and frequency of compounding is left to the discretion of the district court. Uniroyal, Inc. v. RudkinWiley Corp., 939 F.2d 1540, 1545 (Fed.Cir. 1991). Prejudgment interest has no punitive purpose. Rather, interest compensates the patent owner for the use of its money between the date of injury and the date of judgment. Oiness v. Walgreen Co., 88 F.3d 1025, 1033 (Fed.Cir.1996) (citing Gen. Motors Corp., 461 U.S. at 655, 103 S.Ct. 2058). Therefore, “[although the rate of prejudgment interest is left largely to the discretion of the district court, the court must be guided by the purpose of prejudgment interest in exercising that discretion.” Hockerson-Halberstadt, Inc. v. Propet USA, Inc., 62 Fed.Appx. 322, 334 (Fed.Cir.2003). As such, prejudgment interest can only be applied to actual damages and not to punitive or enhanced damages. See Lam, Inc., 718 F.2d at 1066. Xinyi argues that Saint Gobain is not entitled to prejudgment interest because it failed to mark its own products and intentionally delayed in bringing this lawsuit for four years after becoming aware of Xinyi’s allegedly infringing activity. (Mem. in Opp. at 20.) While the Supreme Court did not provide an exhaustive list of" }, { "docid": "5809126", "title": "", "text": "Court DENIES Presidio’s request for enhanced damages. D. Pre-judgment interest Presidio moves for award of prejudgment interest. Section 284 allows the Court to award prejudgment interest “where necessary to afford the plaintiff full compensation for the infringement.” Gen. Motors Corp. v. Devex Corp., 461 U.S. 648, 654, 103 S.Ct. 2058, 76 L.Ed.2d 211 (1983) (citing 35 U.S.C. § 284). According to the Supreme Court, “prejudgment interest should ordinarily be awarded” to compensate the plaintiff for the “use of the money between the time of infringement and the date of the judgment.” Id. at 655-56, 103 S.Ct. 2058 (citing 35 U.S.C. § 284). The interest rate to be used, and whether to use simple or compounded interest, is left fully to the discretion of the court. Bio-Rad Labs., Inc. v. Nicolet Instrument Corp., 807 F.2d 964, 969 (Fed.Cir.1986). Finally, the court also retains discretion to limit or even deny prejudgment interest “where the patent owner has been responsible for undue delay in prosecuting the lawsuit.” Gen. Motors, 461 U.S. at 656-57, 103 S.Ct. 2058 (citations omitted). As an initial matter, the Court rejects ATC’s argument of “undue delay.” According to ATC, pre-judgment interest is inappropriate because despite knowing that ATC began selling its 545L capacitors in June 2006, Presidio did not bring the suit until May 17, 2007, and even when it did bring the suit, Presidio did not have standing to enforce the '356 patent until May 8, 2008. ATC, however, fails to point to any evidence showing that Presidio knew of ATC’s sales as soon as they commenced. Presidio also argues persuasively that its position has always been that it was appropriately named as the plaintiff in this matter from the beginning, and that ATC has not demonstrated otherwise. Accordingly, ATC has failed to demonstrate any “undue delay.” Likewise, the Court rejects ATC’s argument that the interest should be awarded at the prime rate of 5.9%, rather than the statutory rate of 7%. ATC alleges that “courts routinely award prejudgment interest at the prime rate, which approximates the actual interest cost of borrowing money for businesses much better than" }, { "docid": "6105495", "title": "", "text": "would have been in had the infringer entered into a reasonable royalty agreement. An award of interest from the time that the royalty payments would have been received merely serves to make the patent owner whole, since his damages consist not only of the value of the royalty payments but also of the foregone use of the money between the time of infringement and the date of the judgment. General Motors Corp. v. Devex Corp., 461 U.S. 648, 655-56, 103, 103 S.Ct. 2058, 76 L.Ed.2d 211 (1983). Further, the Supreme Court has held “that prejudgment interest should be awarded under § 284 absent some justification for withholding such an award.” Id. at 657, 103 S.Ct. 2058. In General Motors, the Court gave an example of where it “may be appropriate to limit prejudgment interest, or perhaps even deny it altogether”: “where the patent owner has been responsible for undue delay in prosecuting the lawsuit.” Id. “Unlike post-judgment interest for which the interest rate is set by statute, there is no mandatory interest rate and no standard rate for calculating an award of prejudgment interest.” TiVo, Inc. v. Echostar Communications Corp., No. 2:04-CV-1-DF, 2006 U.S. Dist. LEXIS 64291, at *5 (E.D.Tex. Aug. 17, 2006). Rather, a trial court is afforded “wide latitude” in selecting a prejudgment interest rate. Uniroyal, Inc. v. Rudkin-Wiley Corp., 939 F.2d 1540, 1545 (Fed.Cir.1991). Thus, while courts have selected different rates, courts most often award either the prime rate or the U.S. Treasury rate. TiVo, Inc., 2006 U.S. Dist. LEXIS 64291, at *6 (collecting cases). Lastly, prejudgment interest generally “should be awarded from the date of infringement to the date of judgment.” Nickson Indus., Inc. v. Rol Mfg. Co., Ltd., 847 F.2d 796, 800 (Fed.Cir.1988) (citing General Motors Corp., 461 U.S. at 656, 103 S.Ct. 2058). Kaneka seeks an award of pre-judgment interest calculated at the prime rate and compounded quarterly for the damages award for infringing sales throughout the applicable periods and continuing until the date judgment is entered. (Plaintiffs Motion at 10.) Defendants request the Court deny Kaneka any pre-judgment interest because Kaneka unfairly delayed" }, { "docid": "6105498", "title": "", "text": "infringement, regardless of whether Defendants would have continued to infringe the patent. The four-year delay in initiating the present suit therefore likely caused damages owed by Defendants to escalate. Conveniently, Kaneka filed the instant litigation four months after the ’064 Patent expired. (Compare Complaint, filed July 26, 2010, Doc. No. 1, with Testimony of Mr. Napper, Trial Transcript Nov. 10, 2015, p.m.-, 82:17-19, stating that the ’064 Patent expired in March of 2010.) Although the Court finds that Kaneka’s delay was not so unreasonable as to deny all relief to Kaneka, see supra III.B., the Court is persuaded that this four-year delay caused the damages owed by Defendants to escalate. Accordingly, the Court finds that the delay resulted in prejudice to Defendants and on that ground DENIES Plaintiffs request for prejudgment interest for damages awarded for infringement of the ’064 Patent. See Crystal Semiconductor Corp. v. TriTech Microelectronics Int’l, Inc., 246 F.3d 1336, 1362 (Fed.Cir.2001) (affirming a district court’s denial of prejudgment interest where the plaintiff delayed two years in filing suit and where the delay was self-serving and resulted in prejudice to the defendants). 2. The ’961 Patent Regarding the ’961 Patent, there is no allegation that Kaneka delayed bringing suit; nor could there be—the ’961 Patent issued on April 6, 2010. (SAC ¶40.) Accordingly, the Court will assess prejudgment interest for damages awarded for infringement of the ’961 Patent. However, such interest shall not include the period of time litigation was stayed pending the investigation by the International Trade Commission, an action Kaneka initiated. Kaneka did not oppose the stay of proceedings as to the ’961 Patent pending the investigation. (See July 11, 2011 Order Granting Stay of Proceedings, Doc. No. 88.) As such, no prejudgment interest on damages for the ’961 Patent shall be awarded from July 11, 2011 to December 10, 2012, the date the stay was lifted, (Doc. No. 117). See Uniroyal, Inc. v. Rudkin-Wiley Corp., 939 F.2d 1540, 1546 (Fed.Cir.1991) (affirming a district court’s denial of prejudgment interest for the period of time when proceedings were stayed upon mutual agreement of the parties). As" }, { "docid": "11969769", "title": "", "text": "does not “stand out” from other cases to merit a finding that this case is “exceptional” under § 285. Nor was the case litigated in an unreasonable manner. Both parties spend much of their briefs assáiling the other side’s litigation conduct. The Court finds that none of the parties’ allegations demonstrates substantial litigation misconduct. As the Court noted above, both counsel litigated this case vigorously on behalf of their respective clients. In sum, this case is not exceptional. While Campbell’s decisions outside the litigation warrant enhanced damages, its litigation conduct does not “stand out” from other hard-fought cases as unreasonable. Polara’s motion for an award of attorney’s fees is denied. F. Polara’s Motion for an Accounting Polara requests supplemental damages for the “entire scope” of Campbell’s infringement. Dkt. 452. Polara also requests prejudgment and postjudgment interest. Id. Campbell does not resist Polara’s re-, quest for supplemental damages, but contends that any accounting should run from February 1, 2016. Dkt. 462 at 4. Campbell argues that no prejudgment interest is warranted. Id. at 1-4. 1. Supplemental Damages and Accounting The Court begins with Pol'ara’s request for supplemental damages. Upon a finding of infringement, the patentee is entitled to “damages adequate to compensate for the infringement, but in no event less than a reasonable royalty for the use made of the invention by the infringer.” 35 U.S.C. § 284. Patentees are entitled to supplemental damage awards for any infringement prior to the entry of a permanent injunction that was not considered by the jury. See Finjan, Inc. v. Secure Computing Corp., 626 F.3d 1197, 1212-13 (Fed. Cir. 2010). “Courts routinely grant motions for a further accounting where the jury did not consider certain periods of infringing activity post-verdict.” Metso Minerals, 833 F.Supp.2d at 347. This reasoning has been applied to situations like this one in which an infringer provides sales data that does not cover all sales made before trial. See Hynix Semiconductor Inc. v. Rambus Inc., 609 F.Supp.2d 951, 960-61 (N.D. Cal. 2009) (awarding supplemental damages for infringement occurring between verdict and entry of judgment, which could not have been considered" }, { "docid": "21894014", "title": "", "text": "separate order, the court has upheld the jury’s finding of willful infringement and denied J. Baker’s motions for judgment as a matter of law and a new trial. 1. Prejudgment Interest Upon a finding of patent infringement, 35 U.S.C. § 284 directs the court to add interest and costs to the damages award to afford complete compensation to the patentee. Prejudgment interest should be awarded absent some justification for withholding such an award. General Motors Corp. v. Devex Corp., 461 U.S. 648, 657, 103 S.Ct. 2058, 2063, 76 L.Ed.2d 211 (1983). Asserting that Maxwell delayed unduly in bringing suit, J. Baker urges the court not to award prejudgment interest for the three years and five months prior to April 1990. Withholding prejudgment interest based on delay, however, is the exception, not the rule. Lummus Indus., Inc. v. D.M. & E. Corp., 862 F.2d 267, 275 (Fed.Cir.1988). The court has already rejected J. .Baker’s laches defense. In doing so, the court found that J. Baker was not materially prejudiced as a result of Maxwell’s delay in bringing suit. In the absence of prejudice to J. Baker any delay by Maxwell does not warrant a denial of prejudgment interest. Id. Accordingly, the general rule that prejudgment interest should be awarded applies and Maxwell is entitled to prejudgment interest from November 1987 to the date of judgment. The prejudgment interest applies only to the compensatory award of $3.05 million, not to any increased damages awarded by the court. Both parties agree that the interest should be compounded annually. The parties disagree, however, as to the appropriate rate of interest. Maxwell claims that the rate should correspond to a composite of the annual corporate bond rate for J. Baker. Such a rate, according to Maxwell, ensures that J. Baker does not obtain an undue benefit. J. Baker responds that Maxwell’s approach ignores the compensatory nature of prejudgment interest. J. Baker urges the court to apply the 52 week Treasury bill rate which is the rate Maxwell could have earned had she invested the money. Neither party points to any part of the factual record" }, { "docid": "8215310", "title": "", "text": "other grounds, 205 F.3d 1324 (2d Cir. 2000); Mahoney v. Canada Dry Bottling Co., No. 94 cv 2924, 1998 WL 231082 (E.D.N.Y. May 7, 1998) (finding $650,000 punitive damages award excessive and remitting to $100,000 where there was a finding the defendant specifically instructed its district manager to treat plaintiff differently because plaintiff filed an EEOC charge and where defendant failed to follow up on EEOC charge); Ettinger v. State Univ., No. 95 Cv 9893, 1998 WL 91089 (S.D.N.Y. March 2, 1998) (remitting $150,000 punitive damages award against three individuals to $2,000 each, finding $50,000 award per person greatly exceeded the amount necessary to deter defendants); Iannone v. Harris, Inc., 941 F.Supp. 403, 413-15 (S.D.N.Y.1996)(remitting $ 250,000 punitive damages award to $50,000 where no finding of discrimination but only retaliation which included retalia tory discharge); Kim v. Dial Serv. Int'l, Inc., No. 96 cv 3327, 1997 WL 458783 (S.D.N.Y. Aug.11, 1997) (finding $725,000 punitive damages award excessive and remitting to $25,000; finding degree of reprehensibility for discrimination based on race low and determining award of front and back pay punitive in nature). In light of the foregoing, the Court concludes that a punitive sanction of $190,000 against iStar, reflecting both the relationship to the compensatory award of back pay and the Title VII statutory caps, “would be maximally sufficient to serve the retributive and deterrent purposes of civil penalties without violating due process principles.” TVT Records, 279 F.Supp.2d at 461. Accordingly, the punitive damage award against iStar should be remitted to $190,000. C. PREJUDGMENT INTEREST Thomas seeks an award of prejudgment interest on his back pay damages. The decision to award prejudgment interest is left to the sound discretion of the court. See Gierlinger v. Gleason, 160 F.3d 858, 873 (2d Cir.1998). It is ordinarily an abuse of discretion not to award prejudgment interest on a award of lost wages. Id. at 874 (“Awarding pre-judgment interest ... prevents the defendant employer from attempting to enjoy an interest-free loan for as long as it can delay paying out back wages ... and helps to ensure the plaintiff is meaningfully made whole.”)." }, { "docid": "4311286", "title": "", "text": "on the jury verdict form. Garrett v. Faust, 183 F.2d 625 (3d Cir.1950) (verdict form separately listed damages resulting from misrepresentation, and district court appropriately deducted that amount from final award because there was insufficient evidence of misrepresentation); Cornell University v. Hewlett-Packard Co., 609 F.Supp.2d 279 (N.D.N.Y.2009) (Rader, J. by designation) (reducing damages by multiplying “jury’s uncontroverted royalty rate of 0.8 percent” by legally correct royalty base). Here, the verdict form only required the jury to award a lump sum damages figure for each Defendant. The jury was not asked to allocate the damages awarded over the two patents at issue and was not required to specify a reasonable royalty rate. There is thus no clearly identifiable sum in the verdict that is allocable to the noninfringed '749 Patent. While Defendants could have sought remittitur from the district court, this court cannot simply adjust the jury’s damages award under the circumstances of this case. This court also considered Defendants’ other arguments regarding the amount of the damages award. In sum, Defendants have not shown that the jury’s award is “outrageously high” or unsupported by the evidence. Rite-Hite Corp., 56 F.3d at 1554. D. Pre-Judgment Interest Widex challenges the district court’s decision to award pre-judgment interest despite ETG’s alleged delays in filing suit. The award of pre-judgment interest is “the rule, not the exception.” Sanofi-Aventis v. Apotex, Inc., 659 F.3d 1171, 1177 (Fed.Cir.2011). This court reviews the trial court’s decision to award pre-judgment interest for abuse of discretion. General Motors Corp. v. Devex Carp., 461 U.S. 648, 657, 103 S.Ct. 2058, 76 L.Ed.2d 211 (1983). Widex has not cited any cases of this court reversing a district court’s decision not to award prejudgment interest. The district court did not abuse its discretion in this case by following the standard rule of awarding pre-judgment interest. V ETG cross-appeals the district court’s grant of JMOL of noninfringement of the '749 Patent under the doctrine of equivalents. The district court found prosecution history estoppel bars assertion of equivalents in this case. Energy, 2011 WL 2222066, at *12-13, 2011 U.S. Dist. LEXIS 60716, at *41-14." }, { "docid": "6105406", "title": "", "text": "Proceedings: Order: (1) DENYING Defendants’ Motion for Judgment as a Matter of Law, or in the Alternative, a New Trial on Induced Infringement, (Doc. No. 692); (2) FINDING the Equitable Defenses of Implied License and Laches Do Not Bar Plaintiffs Claims, (Doc. Nos. 654, 698); and (3) GRANTING IN PART Plaintiffs Motion for Entry of Judgment, an Award of Supplemental Damages, an Accounting of Infringing Sales, and Pre-Judgment and Post-Judgment Interest, (Doc. No. 669) (IN CHAMBERS) JESUS G. BERNAL, UNITED STATES DISTRICT JUDGE Before the Court are two post-trial motions: Plaintiffs Motion for Entry of Judgment, an Award of Supplemental Damages, an Accounting of Infringing Sales, and Pre- and Post-Judgment Interest, (“Plaintiffs Motion,” Doc. No. 669), and Defendants’ Motion for Judgment as a Matter of Law, or in the Alternative, a New Trial on Induced Infringement, (“Defendants’ Motion,” Doc. No. 692). Also before the Court is the issue of whether Defendants’ equitable defenses of implied license and laches bar Plaintiffs claims. (Doc. Nos. 654, 698.) For the following reasons, the Court GRANTS IN PART Plaintiffs Motion, DENIES Defendants’ Motion, and FINDS that the equitable defenses asserted by Defendants do not bar Plaintiffs claims. I. BACKGROUND A. Procedural Posture On July 26, 2010, Plaintiff Kaneka Corporation (“Kaneka” or “Plaintiff’), a Japanese corporation, filed this patent-infringement action against Defendants SKC Kolon PI, Inc. (“SKPI”), a Korean corporation, and SKC, Inc. (“SKC”), a U.S. corporation (collectively, “Defendants”). (Complaint, Doc. No. 1.) Kaneka and SKPI both manufacture and sell poly-imide films. (Second Amended Complaint (“SAC”), Doc. No. 230, ¶ 17.) These films can be made into flexible copper-clad laminates, which are then made into flexible printed circuit boards. (Id. ¶ 28.) The patents asserted in this case include claims covering polyimide films, as well as methods and processes for producing the films. (Id. ¶ 16.) After a transfer of venue, a lengthy stay during an International Trade Commission (“ITC”) investigation, several amendments to the Complaint, and a comprehensive Markman hearing, the parties filed cross-motions for summary judgment on June 30, 2014. (Doc. Nos. 448, 452.) On April 10, 2015, the Court issued its ruling" }, { "docid": "6105518", "title": "", "text": "disposed of on summary judgment, Id Accordingly, Norian Corp. does not support Kaneka's request that the Court make a factual finding post-verdict regarding a rea- • sonable royalty. . At the hearing on this issue, Defendants cited DePuy Spine, Inc. v. Medtronic Sofamor Danek, Inc., 567 F.3d 1314, 1335 (Fed.Cir. 2009) for the proposition that Kaneka has waived its right to challenge the jury’s verdict on damages for SKC’s infringement. (Transcript of March 3, 2016 Hearing at 25, Doc. No. 721.) However, DePuy is distinguishable because the district court in that case sat in the First Circuit. Under First Circuit jurisprudence, any inconsistency in the jury’s verdict has to be raised before the jury is discharged, or the objection is waived. Wennik v. Polygram Group Distrib., Inc., 304 F.3d 123, 130 (1st Cir.2002) (setting forth the First Circuit’s \"iron-clad rule that a party ‘waives [the issue of] inconsistency if it fails to object after the verdict is read and before the jury is dismissed.’ ”). This is not the law of the Ninth Circuit. See Pierce, 823 F.2d at 1369. Accordingly, DePuy does not control here. . The Court makes no determination at this time whether the jury’s findings are inherently inconsistent. . Both parties refer the Court to their respective arguments regarding the equitable defense of laches in support of and in opposition to Defendants' claim that Kaneka should be denied pre-judgment interest on the grounds that it unreasonably delayed filing suit. (Defendants’ Opposition at 19; Plaintiff's Reply at 12.)" }, { "docid": "6105496", "title": "", "text": "standard rate for calculating an award of prejudgment interest.” TiVo, Inc. v. Echostar Communications Corp., No. 2:04-CV-1-DF, 2006 U.S. Dist. LEXIS 64291, at *5 (E.D.Tex. Aug. 17, 2006). Rather, a trial court is afforded “wide latitude” in selecting a prejudgment interest rate. Uniroyal, Inc. v. Rudkin-Wiley Corp., 939 F.2d 1540, 1545 (Fed.Cir.1991). Thus, while courts have selected different rates, courts most often award either the prime rate or the U.S. Treasury rate. TiVo, Inc., 2006 U.S. Dist. LEXIS 64291, at *6 (collecting cases). Lastly, prejudgment interest generally “should be awarded from the date of infringement to the date of judgment.” Nickson Indus., Inc. v. Rol Mfg. Co., Ltd., 847 F.2d 796, 800 (Fed.Cir.1988) (citing General Motors Corp., 461 U.S. at 656, 103 S.Ct. 2058). Kaneka seeks an award of pre-judgment interest calculated at the prime rate and compounded quarterly for the damages award for infringing sales throughout the applicable periods and continuing until the date judgment is entered. (Plaintiffs Motion at 10.) Defendants request the Court deny Kaneka any pre-judgment interest because Kaneka unfairly delayed in filing suit, which caused damages to escalate. (Defendants’ Opposition at 19.) Alternatively, Defendants request that pre-judgment interest should not be awarded for at least the time period while the case was stayed pending the related ITC investigation, an action that Kaneka initiated, and should be awarded at the Treasury bill rate, compounded annually. (Id. at 19-20.) 1. The ’064 Patent Kaneka admits that it knew of a possible claim for infringement against Defendants for the ’064 Patent “at most” four years-prior to filing suit. (Plaintiffs Equitable Defenses Brief at 23.) Kaneka offers no compelling explanation for why, after it was aware of a possible claim for infringement, it waited four years to file suit. Rather, Kaneka contends that Defendants were not prejudiced by the delay because they would have continued to infringe the patent irrespective of the lawsuit. (Id. at 24.) Although this argument is persuasive, the Court nonetheless notes that the relevant damages periods could have been markedly different had Kaneka filed suit when it was first aware of a possible claim for" }, { "docid": "7883462", "title": "", "text": "Inc., 788 F.2d 1554, 1558 (Fed. Cir.1986); Paper Converting Mach. Co., 745 F.2d at 23; Gyromat Corp. v. Champion Spark Plug Co., 735 F.2d 549, 556 (Fed.Cir.1984); Valmet Paper Machinery, 895 F.Supp. at 1176-77; Endress & Hauser, Inc. v. Hawk Measurement Sys. Pty. Ltd., 892 F.Supp. 1123, 1132 (S.D.Ind.1995); Stryker Corp. v. Intermedies Orthopedics, Inc., 891 F.Supp. 751, 832 (E.D.N.Y.1995); Virginia Panel Corp. v. MacPanel Co., 887 F.Supp. 880, 886 (W.D.Va.1995); Schneider (Europe) AG v. Scimed Life Sys., Inc., 852 F.Supp. 813, 860 (D.Minn.1994), cert. denied, — U.S. -, 116 S.Ct. 520, 133 L.Ed.2d 427 (1995); In re Hayes Microcomputer Prods., Inc. Patent Litigation, 766 F.Supp. 818, 824 (N.D.Cal.1991), aff'd, 982 F.2d 1527 (Fed.Cir.1992). Prejudgment interest should be calculated from the date of infringement to the date of judgment. Nickson Indus., 847 F.2d at 800; Endress & Hauser, Inc., 892 F.Supp. at 1132; Stryker Corp., 891 F.Supp. at 832; Schneider, 852 F.Supp. at 850; Goodwall Const. Co. v. Beers Const. Co., 824 F.Supp. 1044, 1058 (ND.Ga.1992), aff'd, 991 F.2d 751 (Fed.Cir.1993); In re Hayes, 766 F.Supp. at 824. However, the Court explicitly stated that § 284, with its language regarding interest as “fixed by the court,” leaves the court some discretion in awarding prejudgment interest. Devex, 461 U.S. at 656-57, 103 S.Ct. at 2062-63; see also Lmnmus Indus., 862 F.2d at 274; Bio-Rad, 807 F.2d at 967. As an example, the Court indicated that “it may be appropriate to limit prejudgment interest, or perhaps even deny it altogether, where the patent owner has been responsible for undue delay in prosecuting the lawsuit.” Devex, 461 U.S. at 657, 103 S.Ct. at 2063; see also City of Milwaukee v. Cement Div. of Nat’l Gypsum Co., — U.S.-, 115 S.Ct. 2091, 2096, 132 L.Ed.2d 148 (1995) (citing Devex, 461 U.S. at 657, 103 S.Ct. at 2063) (“although we have never attempted to exhaustively catalogue the circumstances that will justify the denial interest, ... the most obvious example is the plaintiffs responsibility for ‘undue delay in prosecuting the lawsuit’”); Kalman v. Berlyn Corp., 914 F.2d 1473, 1486 (Fed.Cir.1990) (award of prejudgment interest is not" }, { "docid": "13375613", "title": "", "text": "939 F.2d 1540, 1545 (Fed.Cir. 1991). Prejudgment interest has no punitive purpose. Rather, interest compensates the patent owner for the use of its money between the date of injury and the date of judgment. Oiness v. Walgreen Co., 88 F.3d 1025, 1033 (Fed.Cir.1996) (citing Gen. Motors Corp., 461 U.S. at 655, 103 S.Ct. 2058). Therefore, “[although the rate of prejudgment interest is left largely to the discretion of the district court, the court must be guided by the purpose of prejudgment interest in exercising that discretion.” Hockerson-Halberstadt, Inc. v. Propet USA, Inc., 62 Fed.Appx. 322, 334 (Fed.Cir.2003). As such, prejudgment interest can only be applied to actual damages and not to punitive or enhanced damages. See Lam, Inc., 718 F.2d at 1066. Xinyi argues that Saint Gobain is not entitled to prejudgment interest because it failed to mark its own products and intentionally delayed in bringing this lawsuit for four years after becoming aware of Xinyi’s allegedly infringing activity. (Mem. in Opp. at 20.) While the Supreme Court did not provide an exhaustive list of reasons why prejudgment interest could be withheld, it did state that prejudgment interest could be refused “where the patent owner has been responsible for undue delay in prosecuting the lawsuit.” General Motors Corp., 461 U.S. at 657, 103 S.Ct. 2058. See, e.g., Crystal Semiconductor Corp. v. TriTech Microelectronics Int’l, Inc., 246 F.3d 1336, 1362 (Fed.Cir.2001) (upholding district court’s refusal to award prejudgment interest based on plaintiffs strategic delay in bringing suit). However, “absent prejudice to the defendants, any delay by [the patentee] does not support the denial of prejudgment interest.” Lummus Indus., Inc. v. DM. & E. Corp., 862 F.2d 267, 275 (Fed.Cir.1988). The record supports an inference that Saint Gobain unduly delayed in bringing suit. Saint Gobain was aware in 2002 that two Chinese glass manufacturers, Fuyao and Xinyi, had entered the market (TR at 469), and that these new competitors were selling after-market windshields with a lip and a bump, similar to the patented products. (TR at 487-88.) Despite this knowl edge, it is undisputed that Saint Gobain waited four years to bring" }, { "docid": "6105499", "title": "", "text": "delay was self-serving and resulted in prejudice to the defendants). 2. The ’961 Patent Regarding the ’961 Patent, there is no allegation that Kaneka delayed bringing suit; nor could there be—the ’961 Patent issued on April 6, 2010. (SAC ¶40.) Accordingly, the Court will assess prejudgment interest for damages awarded for infringement of the ’961 Patent. However, such interest shall not include the period of time litigation was stayed pending the investigation by the International Trade Commission, an action Kaneka initiated. Kaneka did not oppose the stay of proceedings as to the ’961 Patent pending the investigation. (See July 11, 2011 Order Granting Stay of Proceedings, Doc. No. 88.) As such, no prejudgment interest on damages for the ’961 Patent shall be awarded from July 11, 2011 to December 10, 2012, the date the stay was lifted, (Doc. No. 117). See Uniroyal, Inc. v. Rudkin-Wiley Corp., 939 F.2d 1540, 1546 (Fed.Cir.1991) (affirming a district court’s denial of prejudgment interest for the period of time when proceedings were stayed upon mutual agreement of the parties). As to the rate to be assessed, the Court is persuaded that the interest which more fully compensates Plaintiff for its loss is the prime rate. See Server Tech., Inc. v. Am. Power Conversion Corp., No. 3:06-CV-00698-LRH-VP, 2015 WL 1505654, at *6 (D.Nev. Mar. 31, 2015) (“In contrast to the Prime rate, the court finds that [defendant’s] proposed Treasury Bill rate would not cover inflation over the infringing period. Moreover, in the context of patent infringement, the Treasury Bill rate is often inappropriate, as its lower rate of return has the potential to result in a windfall profit for the infringer.”) citing Bard Peripheral Vascular, Inc. v. W.L. Gore & Assocs., Inc., 2009 WL 920300, at *2 (D.Ariz.2009). As Judge Richard Posner has stated: For the future, we suggest that district judges use the prime rate for fixing prejudgment interest where there is no statutory interest rate. That is a readily ascertainable figure which provides a reasonable although rough estimate oj’ the interest rate necessary to compensate plaintiffs not only for the loss of the use" }, { "docid": "10817162", "title": "", "text": "Wickham Contracting Co., Inc. v. Local Union No. 3, Int’l Bhd. of Elec. Workers, 955 F.2d 831, 833-34 (2d Cir.1992) (noting that because punitive damages are a penalty and not awarded as compensation, prejudgment interest is not necessary to make a party whole and would in fact result in overcompensation); Cioffi v. New York Cmty. Bank, 465 F.Supp.2d 202, 223 (E.D.N.Y. 2006) (“Since punitive damages are not intended to provide full compensation to plaintiff, there is no basis for applying prejudgment interest to the punitive damage award in this case.”). Similarly, the rationale for awarding prejudgment interest—to make the Plaintiff whole—only applies to back pay, not front pay. Scarfo v. Cabletron Systems, Inc., 54 F.3d 931, 961 (1st Cir.1995) (affirming district court’s denial of prejudgment interest on front pay award); Ranquist v. M & M Indus., Inc., 2:11-CV-387 (DBH), 2012 WL 1899540, at *9 (D.Me. May 2, 2012) (“An award of pre judgment interest is appropriate with respect to back pay and compensatory damages only.”); report and recommendation adopted, 2:11-CV-387 (DBH), 2012 WL 1899438 (D.Me. May 23, 2012). G. Post-Judgment Interest on the Full Judgment Award Under 28 U.S.C. § 1961(a), a plaintiff is entitled to post judgment interest on “any money judgment in a civil case recovered in a district court.” The rate of post judgment interest is governed by 28 U.S.C. § 1961(a) & (b), which direct that interest be calculated from the date judgment is entered, at a rate equal to the weekly average 1-year constant maturity Treasury yield, compounded annually. “Postjudgment interest is designed to compensate the plaintiff for the delay it suffers from the time damages are reduced to an enforceable judgment to the time the defendant pays the judgment.” Andrulonis v. United States, 26 F.3d 1224, 1230 (2d Cir.1994). “The postjudgment amount upon which the interest accrues includes compensatory damages [and] punitive damages.” Koch v. Greenberg, 14 F.Supp.3d 247, 287, 07 CIV. 9600(JPO), 2014 WL 1284492, at *30 (S.D.N.Y. Mar. 31, 2014). H. Pre and Post-Judgment Interest on the Fee Award The Plaintiff seeks post-judgment interest on the fee award, but apparently not prejudgment" }, { "docid": "6105479", "title": "", "text": "totality of the evidence presented.” Id. Regarding prejudice, Defendants argue that they invested in additional production lines which they otherwise would not have purchased had Kaneka initiated this lawsuit earlier. (Defendants’ Equitable Defenses Brief at 11.) However, this claim is unsupported by any evidence in the record. Rather, in light of Defendants’ affirmative defense of good-faith belief of non-infringement, it seems more likely that Defendants would not have changed their sales strategy during the pendency of the litigation had it begun earlier. (See Defendants’ Memorandum of Contentions of Fact and Law at 25, “There is, however, significant evidence on SKPI’s good-faith belief that Plaintiffs patents were not infringed and indications that SKPI’s good-faith belief was reasonable and correct,” Doc. No. 563.) Further, Kaneka’s delay in bringing suit was not so unreasonable as to preclude them from any relief. The Court therefore FINDS that the defense of laches does not bar Plaintiffs claims. IV. KANEKA’S MOTION FOR ENTRY OF JUDGMENT, SUPPLEMENTAL DAMAGES, ACCOUNTING, AND PRE-AND POST-JUDGMENT INTEREST The parties raise several issues regarding Kaneka’s Proposed Judgment and requests for supplemental damages: whether the judgment should reflect sub-categories of each type of polyimide film the jury found infringed Kaneka’s patents; whether the jury’s verdict supports an entry of judgment as to Plaintiffs induced infringement claim; whether Kaneka is entitled to a reasonable royalty on its direct infringement claims against SKC notwithstanding the fact that the jury did not award Kane-ka a royalty on those claims; whether Kaneka is entitled to an accounting at this time; and whether Kaneka is entitled to pre- and/or post-judgment interest on the damages award. (See generally Plaintiffs Motion and Defendants’ Opposition.) The Court addresses each issue in turn. A. Plaintiffs Proposed Judgment Kaneka submitted a proposed judgment in support of its motion which it contends is consistent with the jury’s verdict, except that Kaneka also seeks a reasonable royalty for SKC’s infringement of the ’064 and ’961 Patents. (Proposed Judgment, Doc. No. 669-2.) Defendants argue that the verdict and the judgment are too broad because they fail to break down each “type” of polyimide film into sub-categorical" }, { "docid": "6105497", "title": "", "text": "in filing suit, which caused damages to escalate. (Defendants’ Opposition at 19.) Alternatively, Defendants request that pre-judgment interest should not be awarded for at least the time period while the case was stayed pending the related ITC investigation, an action that Kaneka initiated, and should be awarded at the Treasury bill rate, compounded annually. (Id. at 19-20.) 1. The ’064 Patent Kaneka admits that it knew of a possible claim for infringement against Defendants for the ’064 Patent “at most” four years-prior to filing suit. (Plaintiffs Equitable Defenses Brief at 23.) Kaneka offers no compelling explanation for why, after it was aware of a possible claim for infringement, it waited four years to file suit. Rather, Kaneka contends that Defendants were not prejudiced by the delay because they would have continued to infringe the patent irrespective of the lawsuit. (Id. at 24.) Although this argument is persuasive, the Court nonetheless notes that the relevant damages periods could have been markedly different had Kaneka filed suit when it was first aware of a possible claim for infringement, regardless of whether Defendants would have continued to infringe the patent. The four-year delay in initiating the present suit therefore likely caused damages owed by Defendants to escalate. Conveniently, Kaneka filed the instant litigation four months after the ’064 Patent expired. (Compare Complaint, filed July 26, 2010, Doc. No. 1, with Testimony of Mr. Napper, Trial Transcript Nov. 10, 2015, p.m.-, 82:17-19, stating that the ’064 Patent expired in March of 2010.) Although the Court finds that Kaneka’s delay was not so unreasonable as to deny all relief to Kaneka, see supra III.B., the Court is persuaded that this four-year delay caused the damages owed by Defendants to escalate. Accordingly, the Court finds that the delay resulted in prejudice to Defendants and on that ground DENIES Plaintiffs request for prejudgment interest for damages awarded for infringement of the ’064 Patent. See Crystal Semiconductor Corp. v. TriTech Microelectronics Int’l, Inc., 246 F.3d 1336, 1362 (Fed.Cir.2001) (affirming a district court’s denial of prejudgment interest where the plaintiff delayed two years in filing suit and where the" } ]

[ { "docid": "16283752", "title": "", "text": "at the previous trial. They also alleged that under § 1983 they were entitled to a declaratory order dismissing the indictment or both declaratory and injunctive relief preventing the Commonwealth from relitigating issues previously determined. Finding that it had jurisdiction to address these claims, the district court, 507 F.Supp. 975, concluded that the double jeopardy clause does not require that the prosecution be barred. It did, however, issue an order stating that the Commonwealth is foreclosed from claiming or arguing that appellants set the fire or aided, counseled or procurred the burning of the building. II. We address first the question whether the double jeopardy clause requires that the prosecution on the conspiracy charge be barred by the acquittal on the substantive crimes. This question is framed by appellants both as a petition for a writ of habeas corpus under 28 U.S.C. §§ 2241 and 2254 and as a prayer for a declaratory order under 42 U.S.C. § 1983. With respect to the petition for a writ of habeas corpus, our primary concern is whether appellants have properly exhausted their claim. Exhaustion presents a peculiar question in the context of a petition for a writ of habeas corpus brought before the state proceeding has even begun. Section 2254, which requires exhaustion, applies only to petitions filed after the state has rendered a judgment and hence affords neither a source of power nor a definition of exhaustion applicable to this case. Section 2241, which empowers courts to issue writs and makes no mention of exhaustion, has been interpreted to allow a court to grant a writ before a defendant has exhausted his claim at trial, but only in unusual circumstances. See Ex Parte Royall, 117 U.S. 241, 251-53, 6 S.Ct. 734, 740-41, 29 L.Ed. 868 (1886). The Supreme Court has reasoned that federal courts, despite their power to issue writs, must respect the authority and ability of state courts to protect constitutional rights in the first instance. See Braden v. 30th Judicial Circuit of Kentucky, 410 U.S. 484, 489-90, 93 S.Ct. 1123, 1126-27, 35 L.Ed.2d 443 (1973); Ex Parte Royall, supra," } ]

[ { "docid": "23667496", "title": "", "text": "a state court. See 106 F.3d at 682. We concluded that a COA was not required in the § 2241 proceeding at issue there, because § 2253 clearly does not encompass challenges to federal detention under § 2241. Just as clearly, . however, § 2253 does encompass challenges to state detention under § 2241, since “the detention complained of arises out of process issued by a State court.” We hold that, assuming Stringer is a pretrial detainee, he must obtain a COA. III. To obtain a COA, Stringer must make “a substantial showing of the denial of a constitutional right.” § 2253(c)(2). The district court rejected Stringer’s request for a COA, and we must consider whether to grant a COA. See id.; see also Fed. R.App. P. 22(b) (“If the district judge has denied the certificate, the applicant for the writ may then request issuance of the certificate by a circuit judge.”). A. The district court dismissed Stringer’s claims on the basis of Younger abstention, perhaps viewing the claims as cognizable, if at all, under state law. We read the petition to assert double jeopardy and collateral estoppel as constitutional protection from a second “trial.” We therefore do not rely on Younger abstention. See Showery v. Samaniego, 814 F.2d 200, 201 n. 5 (5th Cir.1987) (finding that the Younger doctrine does not apply to double jeopardy claims); see also Nichols v. Scott, 69 F.3d 1255, 1269 (5th Cir.1995). B. In United States v. Whitney, 649 F.2d 296 (5th Cir. Unit B June 1981), we held that the Double Jeopardy Clause does not apply to parole and probation revocation proceedings. We distinguished Breed v. Jones, 421 U.S. 519, 95 S.Ct. 1779, 44 L.Ed.2d 346 (1975), in which the Supreme Court held that the Clause barred the prosecution of a juvenile as an adult for conduct that had resulted already in a juvenile court adjudication. As we explained in Whitney: “[PJarole and probation revocation proceedings are not designed to punish a criminal defendant for violation of a criminal law.” 649 F.2d at 298. The holding in Whitney controls. Cf. Douglass v. United" }, { "docid": "23667494", "title": "", "text": "Only in the latter event would “the detention complained of arise[] out of process issued by a State court.” The ultimate disposition of the ease, however, turns out to be the same regardless of Stringer’s status. We thus initially assume that Stringer is being held solely as a pretrial detainee, and we will reverse this assumption subsequently. In Ojo v. INS, 106 F.3d 680, 681 (5th Cir.1997), we stated: By its terms, § 2253 requires COA’s only for appeals in habeas proceedings involving process issued by a state court (i.e., proceedings under 28 U.S.C. § 2254) and appeals from final orders in proceedings under § 2255. Conspicuously absent from the statute is any mention of appeals in § 2241 proceedings. Id. We therefore must determine first, whether Stringer’s petition is properly char acterized as a § 2241 petition. We think that it is. Section 2254 “applies only to post-trial situations and affords relief to a petitioner ‘in custody pursuant to the judgment of a state court.’” Dickerson v. State of Louisiana, 816 F.2d 220, 224 (5th Cir.1987) (quoting § 2254). Pretrial petitions are properly brought under § 2241, “which applies to persons in custody regardless of whether final judgment has been rendered and regardless of the present status of the case pending against him.” Id. (footnote omitted); see also § 2241(c)(3) (“The writ of habeas corpus shall not extend to a prisoner unless ... [h]e is in custody in violation of the Constitution or laws or treaties of the United States.”). Although Stringer is “in custody pursuant to the judgment of a state court,” i.e. the prior felony conviction for which his parole was revoked, he is not attacking the state court judgment. Rather, he is seeking release from the pending state criminal proceedings against him. Therefore, we should construe Stringer’s filing as a habeas petition with § 2241 as the jurisdictional basis. See Dickerson, 816 F.2d at 224; Robinson v. Wade, 686 F.2d 298, 302-03, 303 n. 8 (5th Cir.1982). Ojo involved a federal detainee involved in deportation proceedings, rather than a state prisoner confined by process issued by" }, { "docid": "19230387", "title": "", "text": "sought a COA from this Court. The COA was granted on February 14, 2013, by a single judge of this court. C. Jurisdiction Christian’s detention does not arise out of a state-court conviction or judgment. He is being held pending trial. In rare instances, a pretrial detainee may petition for habeas relief, but such claims are extraordinary. A claim of double jeopardy is one such claim because it is not only a defense against being punished twice for the same offense, but also a defense against being subjected to a second trial— a right we cannot vindicate after a trial is complete, no matter the outcome. See Abney v. United States, 431 U.S. 651, 660, 97 S.Ct. 2034, 52 L.Ed.2d 651 (1977) (“[T]he rights conferred on a criminal accused by the Double Jeopardy Clause would be significantly undermined if appellate review of double jeopardy claims were postponed until after conviction and sentence.”). To facilitate such review, “[w]e have long recognized that pretrial detainees pursue habeas relief instead under § 2241” rather than under § 2254. Phillips v. Ct. of C.P., Hamilton Cnty., Ohio, 668 F.3d 804, 809 (6th Cir.2012); see also Braden v. 30th Jud. Cir. Ct. of Ky., 410 U.S. 484, 503, 93 S.Ct. 1123, 35 L.Ed.2d 443 (1973) (Rehnquist, J., dissenting) (noting that § 2241 “empowers district courts to issue the writ, inter alia, before a judgment is rendered in a criminal proceeding”). Consequently, Christian’s petition for habeas corpus is properly classified as one under § 2241. The district court had jurisdiction pursuant to 28 U.S.C. § 2241 because Christian was in state custody allegedly in violation of the Fifth Amendment of the U.S. Constitution. We have jurisdiction pursuant to 28 U.S.C. § 1291 over Christian’s appeal from the final judgment of the district court denying his habeas petition. Christian has obtained a COA. II. ANALYSIS A. Standard of Review We review de novo a district court’s denial of a § 2241 habeas petition. Fazzini v. Ne. Ohio Corr. Ctr., 473 F.3d 229, 231 (6th Cir.2006). We recently held in Phillips that “habeas petitions governed by § 2241" }, { "docid": "19230397", "title": "", "text": "denial of a § 2241 petition where the petitioner is challenging state pretrial detention. Cf. Greene v. Tenn. Dep’t of Corr., 265 F.3d 369, 372 (6th Cir.2001) (applying COA requirements when \"a state prisoner has been convicted in state court, is thereby incarcerated, and then files a § 2241 petition complaining about the condition or circumstances of that incarceration”); Hoffler v. Bezio, 726 F.3d 144, 152-154 (2d Cir.2013) (concluding that a COA is required); Wilson v. Belleque, 554 F.3d 816, 824-825 (9th Cir.2009) (same); Stringer v. Williams, 161 F.3d 259, 261-62 (5th Cir.1998) (same). However, we need not decide the question, because a COA was granted in this case. . We are presented with a unique set of circumstances in this case. Christian was indicted on nine counts of felonious assault. The jury was instructed on these nine counts of felonious assault as well as seven counts of complicity to felonious assault. These latter seven counts were based on an aiding-and-abetting theory — that Christian aided and abetted those who shot at pursuing police officers by driving. Christian was found not guilty of felonious assault and is now scheduled to be retried on complicity to felonious assault. This latter prosecution is, however, not a successive prosecution for purposes of determining double jeopardy because the hung jury meant that the original jeopardy, as to complicity to felonious assault, did not terminate. See Richardson v. United States, 468 U.S. 317, 326, 104 S.Ct. 3081, 82 L.Ed.2d 242 (1984) (stating that “jeopardy does not terminate when the jury is discharged because it is unable to agree”); see also United States v. Uselton, 974 F.2d 1339, 1992 WL 204351, at *3 (6th Cir.1992) (unpublished table decision) (applying Richardson.) Therefore, this case requires the application of the Blockburger test to determine whether complicity to felonious assault and felonious assault are the same offense." }, { "docid": "10811072", "title": "", "text": "PER CURIAM. The district court dismissed Chris Jacobs’s petition for a writ of habeas corpus, 28 U.S.C.§ 2254, on the ground that it was a second or successive petition that could not be filed without prior authorization from this court. See 28 U.S.C. § 2244(b)(3). Before us now is Jacobs’s application under § 2244(b)(3), seeking such authorization. We dismiss the application as unnecessary and instruct the district court to accept Jacobs’s petition. In 1988 Jacobs was charged with five counts of first degree murder. He was tried before a jury in October 1989 and acquitted on all five counts. Approximately 4 years later, the State, armed with new evidence, charged Jacobs again, this time with kidnapping and false imprisonment. Jacobs moved to dismiss the new charges on double jeopardy grounds, but the state courts denied his motion. Jacobs then filed a petition for a writ of habeas corpus in federal district court, arguing that double jeopardy and/or collateral estoppel barred prosecution. The district court denied the petition, and this court affirmed on appeal. Jacobs v. Marathon County, Wis., 73 F.3d 164 (7th Cir.1996). In August 1998 Jacobs was convicted after a jury trial on the kidnapping and false imprisonment charges. After exhausting his state remedies, Jacobs filed a § 2254 petition in federal district court, challenging both his conviction and his sentence. The district court concluded that this petition was second or successive and dismissed for lack of jurisdiction under 28 U.S.C. § 2244(b)(3)(A). Jacobs now argues that the petition he wishes to file is not a second or successive collateral attack within the meaning of § 2244. We agree. Jacobs’s first petition is properly classified as a § 2241 petition because it was filed pretrial and not while he was “in custody pursuant to judgment of a state court.” See Walker v. O’Brien, 216 F.3d 626, 633 (7th Cir.2000) (§ 2254 is the vehicle for prisoners in custody pursuant to the judgment of a state court, but not those in state custody for some other reason, such as preconviction custody; in the latter case, § 2241 remains available); see" }, { "docid": "5359303", "title": "", "text": "retrial. In his petition for habeas relief in the present action, Satter asserts there is insufficient evidence to prove the depraved mind element and insufficient evidence to negate his claim of self-defense. In essence, he seeks adjudication of the sufficiency of evidence at his trial and asserts that a finding of insufficient evidence would form the predicate for a claim that a retrial is barred by the Double Jeopardy Clause of the Fifth and Fourteenth Amendments to the Constitution. The district court found that his claim is procedurally barred. Satter raises three issues on appeal: 1) whether the district court erred in determining that the state court record contains a plain statement of procedural default; 2) whether the district court erred in finding that Satter did not fairly present the issue of insufficiency of evidence to the state courts; and 3) whether the district court erred in determining there has been no fundamental miscarriage of justice. Satter makes no claim of cause and prejudice to overcome the procedural bar. II. DISCUSSION A threshold issue is jurisdiction. The court has jurisdiction to hear a properly exhausted claim of this type under 28 U.S.C. § 2254. See Justices of Boston Mun. Court v. Lydon, 466 U.S. 294, 302-03, 104 S.Ct. 1805, 1810, 80 L.Ed.2d 311 (1984) (plurality opinion) (recognizing the special nature of the double jeopardy right and the fact that the right cannot be fully vindicated on appeal following final judgment). A claim that a state prosecution will violate the Double Jeopardy Clause presents an exception to the general rule of Younger v. Harris, 401 U.S. 37, 91 S.Ct. 746, 27 L.Ed.2d 669 (1971), that federal courts abstain from interfering with state criminal proceedings. Mannes v. Gillespie, 967 F.2d 1310, 1312 (9th Cir.1992). It is thus well established that federal district courts can entertain pretrial habeas petitions in which petitioner asserts an impending state trial violates the Double Jeopardy Clause. Palmer v. Clarke, 961 F.2d 771, 774 (8th Cir.1992). Ordinarily, a federal court reviewing a state conviction in a 28 U.S.C. § 2254 proceeding may consider only those claims which the" }, { "docid": "1548184", "title": "", "text": "Motion denied by published opinion. Judge THACKER wrote the opinion, in which Judge KEENAN and Judge FLOYD joined. THACKER, Circuit Judge: North Carolina state prisoner Terrence Leroy Wright moves this court for authorization to file a second or successive application for habeas corpus relief. See 28 U.S.C. § 2244(b)(3). His proposed application is styled as a “28 U.S.C. § 2241” petition and challenges the execution of his sentence, rather than the validity of his underlying conviction and sentence. In his opening brief, Wright asks us to deny his motion as unnecessary. He claims that his proposed application properly arises under § 2241, not § 2254, and therefore, he is not required to seek authorization to file a second or successive application. In any event, Wright submits that if he is required to seek authorization, his claims are not “second or successive.” We disagree on both counts and deny the motion. I. Factual and Procedural Background Wright was convicted in North Carolina Superior Court of first-degree burglary and second-degree murder. On April 11, 1996, he was sentenced to 30 years of imprisonment for the burglary conviction. On February 4, 1997, he was sentenced to a term of life imprisonment for the murder conviction. After an unsuccessful direct appeal in North Carolina, in December 1998, Wright was sent to South Carolina to face separate state criminal charges. In March 1999, he was convicted of murder, burglary, criminal sexual conduct, and grand larceny in Charleston County, South Carolina. Wright returned to North Carolina to serve his sentences for the crimes he committed there, and South Carolina placed a detainer on him. After Wright exhausted his state post-conviction remedies, he filed his first federal habeas petition pursuant to § 2254 in August 2007, raising 16 claims varying from alleged double jeopardy violations to improper conduct by the trial judge. The district court dismissed the petition as untimely. See Wright-Bey v. N. Carolina, No. 2:07-cv-17, 2007 WL 2583400, at *1 (W.D.N.C. Sept. 7, 2007). Wright appealed, but we denied a certificate of appealability (“COA”) and dismissed the appeal. See Wright-Bey v. N. Carolina, 268 Fed.Appx." }, { "docid": "22717345", "title": "", "text": "a state court’ ” (quoting 28 U.S.C. § 2254)). In addition, the ipajority’s analysis overlooks the fact that not all § 2241 proceedings , complain about the incidents or circumstances of incarceration. A state petitioner may properly bring a § 2241 proceeding challenging detention arising out of state court process, such as a whole host of pretrial petitions. See, e.g., Braden v. 30th Judicial Circuit Court of Kentucky; 410 U.S. 484, 488-90, 498, 93 S.Ct. 1123, 35 L.Ed.2d 443 (1973) (holding that Alabama prisoner under Kentucky indictment may file a habeas action under § 2241 seeking to enforce his constitutional right to a speedy trial); Higgins v. Rhode Island, 187 F.3d 622, 1998 WL 1085812, *1 (1st Cir.1998) (noting that state prisoner may challenge detainer by bringing a pretrial habeas petition under § 2241, “which empowers a district court to issue a habeas writ before a judgment is rendered in a criminal proceeding”); Santamaria v. Horsley, 133 F.3d 1242, 1243 (9th Cir.) (reviewing pretrial habeas petition under § 2241(c)(3)), cert. denied, 525 U.S. 823, 119 S.Ct. 68, 142 L.Ed.2d 53 (1998); Allen v. Robinson, 986 F.2d 1412, 1993 WL 46883 (4th Cir.1993) (noting availability of pretrial habeas relief under § 2241); Palmer v. Clarke, 961 F.2d 771, 774 (8th Cir.1992) (confirming that “federal district courts can entertain pretrial ha-beas petitions [under § 2241] in which the petitioner asserts [that] an impending state trial violates the Double Jeopardy Clause”); Dickerson, 816 F.2d at 224 (holding that inmate’s pretrial habeas petition is properly brought under § 2241 because he is not in custody pursuant to judgment of a state court). These cases showing § 2241’s broader application are entirely consistent with the Fifth Circuit’s decision in Stringer v. Williams, 161 F.3d 259, 262 (5th Cir.1998), which the majority cites to support its analysis. In Stringer, a parole board revoked Mr. Stringer’s parole after it found that he committed two of four offenses for which he was indicted. Mr. Stringer filed a § 2241 petition attacking the state’s prosecution of him on those four offenses. The court explained that “[o]nly if [Mr. Stringer" }, { "docid": "22230237", "title": "", "text": "(allowing claim to proceed under- § 2241 without any discussion as to why appropriate). . Pub.L. No. 104-132, Title I, § 104, 110 Stat. 1218. . Article I, Section 9, Clause 2. . Other circuits that have reached the same conclusion have expressed similar variations on the theme of using Congressional intent to resolve which statute should apply. As the Second Circuit reasoned in James, ”[S]ection 2254(b)(1) requires state prisoners to exhaust all available state court remedies before filing a Section 2254 petition, whereas Section 2241 contains no such exhaustion requirement. Had Congress intended to make Section 2241 available to state prisoners, it would likely have required, in the interests of comity, that state prisoners challenging the execution of their state-imposed sentences first exhaust their remedies in the state courts.” 308 F.3d at 167. . The Sixth Circuit also has allowed a state prisoner to proceed under § 2241 in a situation akin to White's, but with no discussion as to why § 2241, and not § 2254, was appropriate. Greene, 265 F.3d at 370 (“The key issue is whether a state prisoner seeking relief under § 2241, but not directly or indirectly challenging a state court conviction or sentence, is required to obtain a COA before appealing.”). . We note that in holding that 28 U.S.C. § 2254 is the proper jurisdictional statute in this case we encounter some statutory awkwardness with various provisions of AEDPA when they are applied to the present situation. \"When Congress wrote the AEDPA, it appears to have been thinking not of these prisoners [state prisoners who challenge state administrative decisions], but of prisoners who challenge their convictions or sentences. This preoccupation is evident, for example, in the AEDPA's one-year statute of limitation ... which generally begins running when the state 'judgment' becomes final.” Johnson, supra, at 153. However, as the Supreme Court has noted, \"in a world of silk purses and pigs’ ears, [AEDPA] is not a silk purse in the art of statutory drafting.” Lindh v. Murphy, 521 U.S. 320, 336, 117 S.Ct. 2059, 138 L.Ed.2d 481 (1997). Other courts that have" }, { "docid": "23667495", "title": "", "text": "(5th Cir.1987) (quoting § 2254). Pretrial petitions are properly brought under § 2241, “which applies to persons in custody regardless of whether final judgment has been rendered and regardless of the present status of the case pending against him.” Id. (footnote omitted); see also § 2241(c)(3) (“The writ of habeas corpus shall not extend to a prisoner unless ... [h]e is in custody in violation of the Constitution or laws or treaties of the United States.”). Although Stringer is “in custody pursuant to the judgment of a state court,” i.e. the prior felony conviction for which his parole was revoked, he is not attacking the state court judgment. Rather, he is seeking release from the pending state criminal proceedings against him. Therefore, we should construe Stringer’s filing as a habeas petition with § 2241 as the jurisdictional basis. See Dickerson, 816 F.2d at 224; Robinson v. Wade, 686 F.2d 298, 302-03, 303 n. 8 (5th Cir.1982). Ojo involved a federal detainee involved in deportation proceedings, rather than a state prisoner confined by process issued by a state court. See 106 F.3d at 682. We concluded that a COA was not required in the § 2241 proceeding at issue there, because § 2253 clearly does not encompass challenges to federal detention under § 2241. Just as clearly, . however, § 2253 does encompass challenges to state detention under § 2241, since “the detention complained of arises out of process issued by a State court.” We hold that, assuming Stringer is a pretrial detainee, he must obtain a COA. III. To obtain a COA, Stringer must make “a substantial showing of the denial of a constitutional right.” § 2253(c)(2). The district court rejected Stringer’s request for a COA, and we must consider whether to grant a COA. See id.; see also Fed. R.App. P. 22(b) (“If the district judge has denied the certificate, the applicant for the writ may then request issuance of the certificate by a circuit judge.”). A. The district court dismissed Stringer’s claims on the basis of Younger abstention, perhaps viewing the claims as cognizable, if at all, under" }, { "docid": "22230236", "title": "", "text": "White’s habeas petition, that he did not need to obtain a COA for this court to assert jurisdiction over his appeal, and that White’s constitutional challenge to his transfer to CCCF, and his continued detention thereafter, were properly rejected by the district court. Accordingly, the judgment of the district court is AFFIRMED. . See Cook v. New York State Div. of Parole, 321 F.3d 274, 277-79 (2d Cir.2003); James v. Walsh, 308 F.3d 162, 166-67 (2d Cir.2002); Coady v. Vaughn, 251 F.3d 480, 484-86 (3d Cir.2001); Walker v. O'Brien, 216 F.3d 626, 632-33 (7th Cir.2000), cert. denied, 531 U.S. 1029, 121 S.Ct. 606, 148 L.Ed.2d 518 (2000); Crouch v. Norris, 251 F.3d 720, 722-23 (8th Cir.2001); Medberry v. Crosby, 351 F.3d 1049, 1058-62 (11th Cir.2003). But see Montez v. McKinna, 208 F.3d 862, 869-71 (10th Cir.2000) (holding that § 2241 was the proper statute to challenge legality of transfer to out-of-state prison); Greene v. Tennessee Dep't. of Corr., 265 F.3d 369 (6th Cir.2001), cert. denied, 534 U.S. 1130, 122 S.Ct. 1068, 151 L.Ed.2d 971 (2002) (allowing claim to proceed under- § 2241 without any discussion as to why appropriate). . Pub.L. No. 104-132, Title I, § 104, 110 Stat. 1218. . Article I, Section 9, Clause 2. . Other circuits that have reached the same conclusion have expressed similar variations on the theme of using Congressional intent to resolve which statute should apply. As the Second Circuit reasoned in James, ”[S]ection 2254(b)(1) requires state prisoners to exhaust all available state court remedies before filing a Section 2254 petition, whereas Section 2241 contains no such exhaustion requirement. Had Congress intended to make Section 2241 available to state prisoners, it would likely have required, in the interests of comity, that state prisoners challenging the execution of their state-imposed sentences first exhaust their remedies in the state courts.” 308 F.3d at 167. . The Sixth Circuit also has allowed a state prisoner to proceed under § 2241 in a situation akin to White's, but with no discussion as to why § 2241, and not § 2254, was appropriate. Greene, 265 F.3d at 370" }, { "docid": "10811073", "title": "", "text": "Marathon County, Wis., 73 F.3d 164 (7th Cir.1996). In August 1998 Jacobs was convicted after a jury trial on the kidnapping and false imprisonment charges. After exhausting his state remedies, Jacobs filed a § 2254 petition in federal district court, challenging both his conviction and his sentence. The district court concluded that this petition was second or successive and dismissed for lack of jurisdiction under 28 U.S.C. § 2244(b)(3)(A). Jacobs now argues that the petition he wishes to file is not a second or successive collateral attack within the meaning of § 2244. We agree. Jacobs’s first petition is properly classified as a § 2241 petition because it was filed pretrial and not while he was “in custody pursuant to judgment of a state court.” See Walker v. O’Brien, 216 F.3d 626, 633 (7th Cir.2000) (§ 2254 is the vehicle for prisoners in custody pursuant to the judgment of a state court, but not those in state custody for some other reason, such as preconviction custody; in the latter case, § 2241 remains available); see also Santamaria v. Horsley, 133 F.3d 1242, 1243 (9th Cir.1998) (reviewing pretrial habeas petition under § 2241); Palmer v. Clarke, 961 F.2d 771, 774 (8th Cir.1992) (stating that “federal district courts can entertain pretrial habeas petitions [under § 2241] in which the petitioner asserts [that] an impending state trial violates the Double Jeopardy Clause”); Dickerson v. Louisiana, 816 F.2d 220, 224 (5th Cir.1987) (holding that inmate’s pretrial habe-as petition was properly brought under § 2241, which applies to persons in custody regardless of whether final judgment has been rendered and regardless of the present status of the. case pending against him). And § 2244, by its terms, does not apply to petitions brought under § 2241. Rather, it requires permission only before “a second or successive habeas corpus application under section 2254” may be commenced. 28 U.S.C. § 2244(b)(1), (2) (emphasis added); see also Valona v. United States, 138 F.3d 693, 694 (7th Cir.1998) (the prior-approval mechanism of § 2244 does not apply to petitions brought under § 2241). Thus, because Jacobs’s first collateral attack" }, { "docid": "10811074", "title": "", "text": "also Santamaria v. Horsley, 133 F.3d 1242, 1243 (9th Cir.1998) (reviewing pretrial habeas petition under § 2241); Palmer v. Clarke, 961 F.2d 771, 774 (8th Cir.1992) (stating that “federal district courts can entertain pretrial habeas petitions [under § 2241] in which the petitioner asserts [that] an impending state trial violates the Double Jeopardy Clause”); Dickerson v. Louisiana, 816 F.2d 220, 224 (5th Cir.1987) (holding that inmate’s pretrial habe-as petition was properly brought under § 2241, which applies to persons in custody regardless of whether final judgment has been rendered and regardless of the present status of the. case pending against him). And § 2244, by its terms, does not apply to petitions brought under § 2241. Rather, it requires permission only before “a second or successive habeas corpus application under section 2254” may be commenced. 28 U.S.C. § 2244(b)(1), (2) (emphasis added); see also Valona v. United States, 138 F.3d 693, 694 (7th Cir.1998) (the prior-approval mechanism of § 2244 does not apply to petitions brought under § 2241). Thus, because Jacobs’s first collateral attack is not covered under § 2244, the petition he now seeks to file is not second or successive within the meaning of that section: it is, in fact, Jacobs’s first federal challenge to his conviction and sentence. Because the petition Jacobs seeks to file is not second or successive within the meaning of § 2244, authorization from this court is unnecessary. Accordingly, the application for authorization is Dismissed. We instruct the Clerk of the United States District Court for the Western District of Wisconsin to accept filing of Jacobs’s petition for a writ of habeas corpus nunc pro tunc to the date he originally filed the petition. Walker v. Roth, 133 F.3d 454, 455 (7th Cir.1997)." }, { "docid": "10692751", "title": "", "text": "the confines of section 2241. The case law confirms this intuition. Although we find little guidance in our own reported decisions, see, e.g., Jackson, 337 F.3d at 79 (raising, but not resolving, a question as to whether a pretrial detainee was correct in filing for habeas relief under section 2254), the precedents elsewhere are uniform. Several other courts of appeals have decided, on sufficiently analogous facts, that section 2241—not section 2254—applies. See, e.g., Jacobs v. McCaughtry, 251 F.3d 596, 597-98 (7th Cir.2001) (per curiam); Stringer v. Williams, 161 F.3d 259, 261-62 (5th Cir.1998); Mars v. Mounts, 895 F.2d 1348, 1351 n. 3 (11th Cir.1990). The Commonwealth does nothing to discredit, and little to counter, this impressive array of authority. The Commonwealth’s principal effort to find support in the case law revolves around the decision in Harpster v. Ohio, 128 F.3d 322 (6th Cir.1997). That decision, carefully read, lends no assistance to the Commonwealth’s cause. The Harpster court simply analyzed the habeas petition before it in accordance with section 2254 without any discussion of whether that section or section 2241 actually controlled. See id. at 326. To say more on this issue would be to paint the lily. We hold that jurisdiction in this case was properly premised on 28 U.S.C. § 2241. As mentioned above, this determination dictates the standard of review. Prior to the enactment of the AEDPA, federal courts sitting in habeas jurisdiction typically deferred to state court findings of fact but reviewed conclusions of law de novo. See Townsend v. Sain, 372 U.S. 293, 318, 83 S.Ct. 745, 9 L.Ed.2d 770 (1963); Scarpa v. DuBois, 38 F.3d 1, 9 (1st Cir.1994). Courts applied this standard of review indiscriminately to petitions brought under both sections 2241 and 2254. See, e.g., Scarpa, 38 F.3d at 9 (reviewing a section 2254 petition); United States ex rel. Hall v. Illinois, 329 F.2d 354, 356-57 (7th Cir.1964) (reviewing a section 2241 petition). In 1996, the AEDPA ushered in a new, particularized framework for adjudicating certain habeas cases. See Pub.L. No. 104-132 § 104, 110 Stat. 1214, 1218-19 (1996). That mode of review" }, { "docid": "23667492", "title": "", "text": "offense. Based on these findings, the parole board revoked Stringer’s parole. Stringer now seeks to prevent Texas from prosecuting him for any of the four charged offenses. After exhausting state habeas remedies, Stringer filed an application, which he styled as being pursuant to 28 U.S.C. § 2241, in federal district court, challenging the pending prosecutions. He contended that the state was barred on double jeopardy grounds from prosecuting him for the two offenses that the hearing officer determined he had committed, and was barred on collateral es-toppel grounds from prosecuting him for the other two offenses. Stringer maintained that the state had already punished him for those offenses by revoking his parole and by failing to give him credit towards his prior sentence for the time that he successfully spent on parole. On March 11,1998, the district court, characterizing Stringer’s habeas petition as being pursuant to 28 U.S.C. § 2254, dismissed it. Because Stringer sought an injunction against ongoing state criminal proceedings, the court ruled that abstention was required under Younger v. Harris, 401 U.S. 37, 49-52, 91 S.Ct. 746, 27 L.Ed.2d 669 (1971). After Stringer filed his notice of appeal, the district court on March 18, 1998, construed this notice as a request for a certificate of appeala-bility, see Murphy v. Johnson, 110 F.3d 10, 11 (5th Cir.1997), and denied the certificate. II. As a threshold matter, we must determine whether a state prisoner whose parole has been revoked and who awaits trial on additional state charges requires a certificate of appealability (COA) to challenge dismissal of a habeas petition. Under 28 U.S.C. § 2253, a COA is needed to appeal either (1) “the final order in a habeas corpus proceeding in which the detention complained of arises out of process issued by a State court” or (2) the final order in a § 2255 proceeding. The record here does not make clear whether Stringer is currently being detained pursuant to the revocation of parole, which he does not challenge here; or whether that period of incarceration has expired or he is otherwise being held as a pretrial detainee." }, { "docid": "3237519", "title": "", "text": "for writ of habeas corpus. Because his Sixth Amendment right to a speedy trial has been violated, Petitioner shall be immediately released from custody with prejudice to re-prosecution of the criminal charges. See Strunk v. United States, 412 U.S. 434, 439-40, 93 S.Ct. 2260, 37 L.Ed.2d 56 (1973) (holding that violation of Sixth Amendment speedy trial rights requires dismissal). This order, however, shall be without prejudice to the institution of such civil commitment proceedings as may be appropriate under state law to be commenced within 30 days of the issuance of the mandate. REVERSED and REMANDED. . The parties characterize the petition as falling under 28 U.S.C. § 2254. However, because Petitioner is a pretrial detainee, he is not being held \"pursuant to the judgment of a State court.” 28 U.S.C. § 2254. Therefore, his claim falls under 28 U.S.C. § 2241. See Braden v. Judicial Circuit Court, 410 U.S. 484, 503, 93 S.Ct. 1123, 35 L.Ed.2d 443 (1973) (Rehnquist, J., dissenting) (\"Section 2254 pertains only to a prisoner in custody pursuant to a judgment of conviction of a state court; in the context of the attempt to assert a right to a speedy trial, there is simply no § 2254 trap to 'ensnare' petitioner, such as the court below felt existed. The issue here is whether habeas corpus is warranted under § 2241(c)(3); that section empowers district courts to issue the writ, inter alia, before a judgment is rendered in a criminal proceeding.”); Jacobs v. McCaughtry, 251 F.3d 596, 597 (7th Cir.2001) (explaining that a state court defendant attacking his pretrial detention should bring a habeas petition under 28 U.S.C. § 2241); Stringer v. Williams, 161 F.3d 259, 262 (5th Cir.1998) (same). . The Reply Brief was filed on October 25, 2002. The district court considered the period of delay only up to the time of its ruling. We therefore limit our review to that period. We note, however, that no trial has occurred even at the time of oral argument, at which Respondent was unable to report what had happened to McNeely since December 2000, the last date" }, { "docid": "13363979", "title": "", "text": "construe the words ‘process issued by a State court’ to mean ‘process not issued by a State court, but instead the outcome of an internal prison disciplinary proceeding.’ ” Id. at 637. The difficulty we have with this construction is that it narrows the phrase in § 2253(c)(1)(A) that gives it breadth' — “arises out of.” A plain reading, noting the breadth created by this phrase, was the basis for the Montez court’s resolution of the issue and is also the position of the Fifth Circuit. See id. at 867; Stringer v. Williams, 161 F.3d 259, 262 (5th Cir.1998) (holding that, in the context of a pretrial detainee filing a petition under § 2241, “ § 2253 clearly does not encompass challenges to federal detention under § 2241. Just as clearly, however, § 2253 does encompass challenges to state detention under § 2241, since ‘the detention complained of arises out of process issued by a State court.’ ”). If a state prisoner has been convicted in state court, is thereby incarcerated, and then files a § 2241 petition complaining about the condition or circumstances of that incarceration, then logic tells us that the person is detained because of a process issued (a conviction) by a State court. When it is clear that the detention results from a State court conviction, the habeas petition arises from the genesis of custody — the State conviction. Accordingly, we agree with the Fifth and Tenth Circuits’ construction of this plain and broad language and hold that a state prisoner who appeals the resolution of a § 2241 petition, such as is involved here, is required to first obtain a COA under § 2253(c)(1)(A). We therefore decline to address the merits of Greene’s habeas claims and GRANT TDC’s motion to reconsider, VACATE the order granting Greene leave to proceed with his appeal without a COA, and DISMISS his appeal. . Greene's petition alleged that the denial of double sentencing credits under Tennessee’s current and former sentencing credit incentive programs violated the Ex Post Facto clause and his due process rights. . 28 U.S.C. § 2253" }, { "docid": "22717346", "title": "", "text": "S.Ct. 68, 142 L.Ed.2d 53 (1998); Allen v. Robinson, 986 F.2d 1412, 1993 WL 46883 (4th Cir.1993) (noting availability of pretrial habeas relief under § 2241); Palmer v. Clarke, 961 F.2d 771, 774 (8th Cir.1992) (confirming that “federal district courts can entertain pretrial ha-beas petitions [under § 2241] in which the petitioner asserts [that] an impending state trial violates the Double Jeopardy Clause”); Dickerson, 816 F.2d at 224 (holding that inmate’s pretrial habeas petition is properly brought under § 2241 because he is not in custody pursuant to judgment of a state court). These cases showing § 2241’s broader application are entirely consistent with the Fifth Circuit’s decision in Stringer v. Williams, 161 F.3d 259, 262 (5th Cir.1998), which the majority cites to support its analysis. In Stringer, a parole board revoked Mr. Stringer’s parole after it found that he committed two of four offenses for which he was indicted. Mr. Stringer filed a § 2241 petition attacking the state’s prosecution of him on those four offenses. The court explained that “[o]nly if [Mr. Stringer is being held as a pretrial detainee] would ‘the detention complained of arise[] out of process issued by a State court.’” Id. at 261. The court then assumed that Mr. Stringer was a pretrial detainee and, on the basis of that assumption, held that he must obtain a COA to appeal the denial of his § 2241 petition. See id. at 262. This assumption was critical to the court’s holding because as a pretrial detainee- Mr. Stringer was challenging detention arising out of state court process, i.e.,' the indictment. If he were in custody pursuant to the revocation of parole, his detention would not arise out of state court process and no certificate of appealability would be required. See id. at 261-62 (indicating that petitioner’s detention would arise out of process issued by a state court under § 2253 if he were a pretrial detainee but not if he were detained pursuant to the revocation of pa role). Thus, the majority is correct in citing Stringer for that proposition that “ § 2253 does encompass" }, { "docid": "23667491", "title": "", "text": "PATRICK E. HIGGINBOTHAM, Circuit Judge: This case presents a state prisoner who, relying on double jeopardy and collateral es-toppel grounds, seeks to enjoin his further prosecution. We have no jurisdiction to grant relief for any violation of state law, and we find that the prisoner’s underlying constitutional claims have no merit. We therefore refuse to grant a certificate of appealability, and we dismiss the appeal. I. In August 1995, Clyde Stringer, on parole from a prior felony conviction, was charged by a Texas grand jury in four separate indictments with two counts of possession of a controlled substance, and one count each of possession of a firearm by a felon and aggravated robbery. On September 25, 1995, a hearing officer determined that Stringer had violated his parole by committing the offense of possession of a firearm by a felon and one of the charged offenses of possession of a controlled substance. The hearing officer, however, determined that there was insufficient evidence to show that Stringer had committed the aggravated robbery or the other controlled substance offense. Based on these findings, the parole board revoked Stringer’s parole. Stringer now seeks to prevent Texas from prosecuting him for any of the four charged offenses. After exhausting state habeas remedies, Stringer filed an application, which he styled as being pursuant to 28 U.S.C. § 2241, in federal district court, challenging the pending prosecutions. He contended that the state was barred on double jeopardy grounds from prosecuting him for the two offenses that the hearing officer determined he had committed, and was barred on collateral es-toppel grounds from prosecuting him for the other two offenses. Stringer maintained that the state had already punished him for those offenses by revoking his parole and by failing to give him credit towards his prior sentence for the time that he successfully spent on parole. On March 11,1998, the district court, characterizing Stringer’s habeas petition as being pursuant to 28 U.S.C. § 2254, dismissed it. Because Stringer sought an injunction against ongoing state criminal proceedings, the court ruled that abstention was required under Younger v. Harris, 401 U.S." }, { "docid": "19230388", "title": "", "text": "Phillips v. Ct. of C.P., Hamilton Cnty., Ohio, 668 F.3d 804, 809 (6th Cir.2012); see also Braden v. 30th Jud. Cir. Ct. of Ky., 410 U.S. 484, 503, 93 S.Ct. 1123, 35 L.Ed.2d 443 (1973) (Rehnquist, J., dissenting) (noting that § 2241 “empowers district courts to issue the writ, inter alia, before a judgment is rendered in a criminal proceeding”). Consequently, Christian’s petition for habeas corpus is properly classified as one under § 2241. The district court had jurisdiction pursuant to 28 U.S.C. § 2241 because Christian was in state custody allegedly in violation of the Fifth Amendment of the U.S. Constitution. We have jurisdiction pursuant to 28 U.S.C. § 1291 over Christian’s appeal from the final judgment of the district court denying his habeas petition. Christian has obtained a COA. II. ANALYSIS A. Standard of Review We review de novo a district court’s denial of a § 2241 habeas petition. Fazzini v. Ne. Ohio Corr. Ctr., 473 F.3d 229, 231 (6th Cir.2006). We recently held in Phillips that “habeas petitions governed by § 2241 are not subject to the heightened standards contained in § 2254(d).” 668 F.3d at 810 (observing that “[t]he First, Fifth, Ninth, and Tenth Circuits have concluded that the deference that § 2254(d) requires never applies to habeas petitions brought by pretrial detainees under § 2241, and no circuit to our knowledge has held otherwise”). We relied on the thoughtful analysis of the Fifth Circuit in Martinez v. Caldwell, 644 F.3d 238 (5th Cir.2011), which noted that, “[t]he deferential standard afforded to state court decisions, which is specifically articulated in § 2254, is not included in the text of § 2241.” Id. at 242. Therefore, “we must conduct a de novo review of the state court proceedings.” Phillips, 668 F.3d at 810. 1. Blockburger Test In Blockburger v. United States, 284 U.S. 299, 52 S.Ct. 180, 76 L.Ed. 306 (1932), the Supreme Court stated the test to be applied to determine whether a defendant faces double jeopardy: “[t]he applicable rule is that where the same act or transaction constitutes a violation of two distinct statutory provisions," } ]

[ { "docid": "23107754", "title": "", "text": "jury trial, and on February 24, 1983, the trial judge found appellant guilty on all counts. This appeal followed. II. A. Franks Hearing. Appellant first contends that under the holding of Franks v. Delaware, 438 U.S. 154, 98 S.Ct. 2674, 57 L.Ed.2d 667 (1978), he was entitled to a full evidentiary hearing on his motion to quash and suppress evidence. In Franks, the Supreme Court held that the fourth amendment requires an evidentiary hearing into the truthfulness of the allegation contained in an affidavit supporting an application for a search warrant “where the defendant makes a substantial preliminary showing that a false statement knowingly and intentionally, or with reckless disregard for the truth, was included by the affiant in the warrant affidavit, and if the allegedly false statement is necessary to the finding of probable cause ____” Id. at 155-56, 98 S.Ct. at 2676 (emphasis added). Franks makes clear that an affidavit supporting an application for a search warrant is presumed to be valid, id. at 171, 98 S.Ct. at 2684, and that the “substantial preliminary showing” that must be made to entitle the defendant to an evidentiary hearing must focus on the state of mind of the affiant, id. The proffered evidence must go toward showing either that the affiant lied, or that the affiant recklessly disregarded the truth because “the affiant ‘in fact entertained serious doubts as to the truth of his’ allegations[,]” or had “ ‘obvious reasons to doubt the veracity’ of the allegations.” United States v. Williams, 737 F.2d 594, 602 (7th Cir.1984) (quoting St. Amant v. Thompson, 390 U.S. 727, 731, 732, 88 S.Ct. 1323, 1325, 1326, 20 L.Ed.2d 262 (1968)). Appellant contends that he made the required “substantial preliminary showing” by raising in his motion to quash numerous factual inaccuracies contained in the affidavit supporting the search warrant application that demonstrate that the affiant, Agent Scigalski, knew the information given to him was false or that he included the information when he had obvious reasons to doubt it. We disagree. We believe that as to each of the alleged inaccuracies asserted by appellant, with" } ]

[ { "docid": "15435651", "title": "", "text": "objectively reasonable. See Leon, 468 U.S. at 923, 104 S.Ct. 3405. Here, Falso claims that the good-faith exception does not apply on the first and third of these grounds; specifically, that the district court’s finding of probable cause was based on knowingly or recklessly misleading statements in Agent Lyons’s affidavit, and the affidavit otherwise was “so lacking in indicia of probable cause” as to render reliance upon it unreasonable. Falso also seeks to avoid application of the good-faith exception on the ground that district court improperly denied a Franks hearing to challenge the veracity of Agent Lyons’s affidavit. A majority of this panel disagrees. A. The District Court Was Not Knowingly or Recklessly Misled Generally, the way a defendant demonstrates that statements in an affidavit intentionally or recklessly misled a district court is through a Franks hearing. In Franks v. Delaware, 438 U.S. 154, 98 S.Ct. 2674, 57 L.Ed.2d 667 (1978), the Supreme Court held that although a presumption of validity attaches to a law enforcement affidavit, in certain circumstances a defendant is entitled to a hearing to test the veracity of the affiant’s statements. Id. at 171, 98 S.Ct. 2674. Specifically, the Court held that the Fourth Amendment entitles a defendant to a hearing if he or she makes a “substantial preliminary showing” that a deliberate falsehood or statement made with reckless disregard for the truth was included in the warrant affidavit and the statement was necessary to the judge’s finding of probable cause. Id. at 155-56, 170-71, 98 S.Ct. 2674; see also United States v. Salameh, 152 F.3d 88, 113 (2d Cir.1998). To avoid fishing expeditions into affidavits that are otherwise presumed truthful, the Court in Leon held that to mandate an evidentiary hearing: [T]he challenger’s attack must be more than conclusory and must be supported by more than a mere desire to cross-examine. There must be allegations of deliberate falsehood or of reckless disregard for the truth, and those allegations must be accompanied by an offer of proof. They should point out specifically the portion of the warrant affidavit that is claimed to be false; and they" }, { "docid": "1457572", "title": "", "text": "States v. Williams, 945 F.2d 192, 195 (7th Cir.1991), quoting United States v. Edwards, 898 F.2d 1273, 1276 (7th Cir.1990). Any legal determinations that factor into the court’s ruling, however, are subject to de novo review. United States v. Adames, 56 F.3d 737, 747 (7th Cir.1995). A. Jones’ Request For A Franks Hearing Jones contends that the District Court erred by denying his request for a Franks hearing and finding that he did not produce sufficient evidence to make the “substantial preliminary showing” required for a hearing. He asks this Court to remand the matter for an evidentiary hearing on his Franks allegations. We believe that Jones has utterly failed to establish by a “substantial preliminary showing” that the search warrant affidavit contained material misrepresentations that were necessary to ' the finding of probable cause. We thus affirm the District Court’s denial of the request for a Franks hearing. In Franks v. Delaware, the Supreme Court held that the Fourth Amendment requires an evidentiary hearing into the truthfulness of an allegation contained in an affidavit supporting an application for a search warrant “where the defendant makes a substantial preliminary showing that a false statement knowingly and intentionally, or with reckless disregard for the truth, was included by the affiant in the warrant affidavit, and if the allegedly false statement is necessary to the finding of probable cause.” 438 U.S. 154, 155-56, 98 S.Ct. 2674, 2676, 57 L.Ed.2d 667 (1978) (emphasis added). Franks makes it clear that affidavits supporting a search warrant are presumed valid, and that the “substantial preliminary showing” that must be made to entitle the defendant to an eviden-tiary hearing must focus on the state of mind of the warrant affiant, that is the police officer who sought the search warrant. 438 U.S. at 171, 98 S.Ct. at 2684. The defendant must offer evidence showing either that the warrant affiant lied or that the warrant affiant recklessly disregarded the truth because he “in fact entertained serious doubts as to the truth of his allegations” or had “obvious reasons to doubt the veracity of the allegations.” United States v." }, { "docid": "15060069", "title": "", "text": "no longer lived there. Franks requires that a hearing be held where the defendant makes a substantial preliminary showing that a false statement knowingly and intentionally, or with reckless disregard for the truth, was included by the affiant in the warrant affidavit, and if the allegedly false statement is necessary to the finding of probable cause.... 438 U.S. at 155-56, 98 S.Ct. at 2676-77. Material omissions from an affidavit are governed by the same rules as false statements. United States v. Ferguson, 758 F.2d 843, 848 (2d Cir.), cert. denied, 474 U.S. 1032, 106 S.Ct. 592, 88 L.Ed.2d 572 (1985). Franks does not require that all statements in an affidavit be true; it simply requires that the statements be “believed or appropriately accepted by the affi-ant as true.” 438 U.S. at 165, 98 S.Ct. at 2681. The trial court denied the request for a Franks hearing because appellants failed to produce evidence of deliberate falsehood or recklessness in the affidavit. We agree and note that the affidavit contained sufficient information to support the agents’ belief that Taylor-Lopez used the Keel Court apartment. Supporting evidence included the electric bill and money order that were seized during the search of his apartment, the identification of his photograph by two neighbors and the presence of a late-model red Corvette at Keel Court. Given these corroborating details, the agents had a sufficient basis for their belief and were not obligated to track down and interview the landlord. Even though the agents turned out to be wrong about who lived in the apartment, that fact alone was insufficient to mandate a Franks hearing. 2. Suppression Hearing Appellants contend that the trial judge abandoned his impartial role and acted as the government’s advocate during the suppression hearing, which focused on whether the search was conducted before or after Magistrate Caden issued the warrant at 12:55 P.M. on December 7, 1987. At the hearing, the government and appellants each presented one witness who testified as to the time of the search. The government’s witness, Agent Dolinsky, testified that the search occurred sometime after 3 P.M. Appellants’ witness," }, { "docid": "18247647", "title": "", "text": "Bailey, 272 F.Supp.2d 822 (D.Neb.2003); United States v. Strauser, 247 F.Supp.2d 1135 (E.D.Mo.2003); United States v. Perez, 247 F.Supp.2d 459 (S.D.N.Y.2003). The rule governing allegedly misleading search warrant affidavits is well established. See United States v. Frost, 999 F.2d 737, 742 (3d Cir.1993) (following Franks v. Delaware, 438 U.S. 154, 98 S.Ct. 2674, 57 L.Ed.2d 667). Where a defendant demonstrates by a preponderance of the evidence “that a false statement knowingly and intentionally, or with reckless disregard for the truth, was included by the affiant in the warrant affidavit, and [that] the allegedly false statement is necessary to the finding of probable cause,” the Fourth Amendment requires that “the fruits of the search” be excluded “to the same extent as if probable cause was lacking on the face of the affidavit.” Franks, 438 U.S. at 155-56, 98 S.Ct. at 2676. Accordingly, in order to void the warrant and suppress the evidence, the defendant “must show both [1] that bad faith or reckless disregard existed on the part of the affiant, and [2] that there would have been no probable cause but for the incorrect statement.” Frost, 999 F.2d at 743; see also United States v. Harvey, 2 F.3d 1318, 1323 (3d Cir.1993). 1. Intentional or Reckless Falsehood In denying Shields’ request for a Franks hearing, the district court did not make any findings with regard to the first element of the two-part Franks test and instead assumed for purposes of its decision that the affidavit contained intentionally or recklessly made false statements. In this regard we point out that it is beyond question that the police cannot insulate a deliberate falsehood from a Franks inquiry simply by laundering the falsehood through an unwitting affiant who is ignorant of the falsehood. Franks, 438 U.S. at 164 n. 6, 98 S.Ct. at 2680 n. 6; United States v. Calisto, 888 F.2d 711, 714 (3d Cir.1988) (holding that conduct of officers who relayed facts to the affiant was relevant to Franks inquiry). To this end, Shields cites two cases in which district courts conducted evidentiary hearings on the affidavit of Agent Binney that" }, { "docid": "22594273", "title": "", "text": "of espionage and fraud against the United States. The supporting affidavit was attached to and incorporated by reference in both warrants. Given the reasonable specificity of the warrants and affidavits regarding the items described and the offenses alleged, the presence of a “catch-all” provision at the end of the warrants allowing seizure of “other information or objects showing violations of the above statutes” did not render them overbroad. Fannin, 817 F.2d at 1383-84; see United States v. Spilotro, 800 F.2d 959, 964, 967 (9th Cir.1986). A finding of facial validity of the search warrants does not end our inquiry. Whit-worth further contends that he was improperly denied an evidentiary hearing pursuant to Franks v. Delaware, 438 U.S. 154, 98 S.Ct. 2674, 57 L.Ed.2d 667 (1978), to challenge the veracity of certain factual statements in the affidavits supporting the warrants. In Franks, the Court held that: [Wjhere the defendant makes a substantial preliminary showing that a false statement knowingly and intentionally, or with reckless disregard for the truth, was included by the affiant in the warrant affidavit, and if the allegedly false statement is necessary to the finding of probable cause, the Fourth Amendment requires that a hearing be held at the defendant’s request. 438 U.S. at 155-56, 98 S.Ct. at 2676. Similarly, a defendant is entitled to a Franks hearing upon a “substantial showing that the affiant intentionally or recklessly omitted facts required to prevent technically true statements in the affidavit from being misleading.” United States v. Stanert, 762 F.2d 775, 781 (9th Cir.), modified, 769 F.2d 1410 (1985). The issue whether a Franks hearing is required is a mixed question of law and fact reviewed de novo. United States v. Dozier, 826 F.2d 866, 869 (9th Cir.1987). Whitworth argues that the magistrate was purposely misled in two ways. First, he points to paragraph 16 of both affidavits, quoting an unnamed “friend” of Whit-worth’s in Honolulu who said he “has been with Whitworth on many occasions over the years, has discussed stocks and bonds with Whitworth, and has sailed on his boat.” The friend told FBI agents that Whitworth “seemed" }, { "docid": "12055487", "title": "", "text": "623, 627, 1 L.Ed.2d 639 (1957); United States v. Bloomgren, 814 F.2d 580, 584 (10th Cir.1987). As this court noted in Bloomgren, the Supreme Court decision in Franks v. Delaware, 438 U.S. 154, 98 S.Ct. 2674, 57 L.Ed.2d 667 (1978), laid the foundation for a defendant to request the disclosure of a confidential informant’s identity. Bloomgren, 814 F.2d at 583. However, the public interest in confidentiality of the informant “imposes procedural requirements and evidentiary burdens on a defendant who requests the disclosure of a confidential informant.” Id. at 584. In the present case, defendant seeks the identity of the informants referred to in the affidavit in support of the wiretap application. In order to test the veracity of such affidavit or obtain the disclosure of a confidential informant referred to therein, the defendant must make a substantial showing that the affiants knowingly made false statements, or made statements with reckless disregard for the truth. Id. See also Franks v. Delaware, 438 U.S. at 155-56, 98 S.Ct. at 2676-77; United States v. Schauble, 647 F.2d 113, 117 (10th Cir.1981). “It is not enough to show that the informant deliberately lied to the unsuspecting affiant.” Bloomgren, 814 F.2d at 584. See also Schauble, 647 F.2d at 117. Thus, because it is the veracity of the affiants that is the crucial inquiry, defendant in the present case must show that the agents who swore out the affidavit in support of the wiretap application knowingly made false statements or made statements in reckless disregard of the truth. The district court held an evidentiary hearing in conjunction with defendant’s motion for sanctions (requesting dismissal of the indictment or suppression of wiretap evidence, alleging untrue statements regarding Joseph Antonio Lopez in the affidavit in support of the wiretap application). The district court heard the testimony of several witnesses, including defendant and one of the agents who submitted the application, and received evidence, including the affidavit of Lopez. At the conclusion of the hearing, the trial judge found that neither of the officers involved in applying for the wiretap intentionally or negligently misled or misrepresented any facts" }, { "docid": "12538221", "title": "", "text": "Agent Rossi or that he lied in his affidavit. In their motion before the district court, defendants admitted that “it is impossible for Defendants to make the ‘substantial preliminary showing’ that the affiant or his fellow agents, as opposed to the informants, provided the false statements in order to merit an evidentiary hearing” under Franks v. Delaware, 438 U.S. 154, 98 S.Ct. 2674, 57 L.Ed.2d 667 (1978). On appeal, defendants apparently concede, as they did in their pretrial motion, that they are not entitled to a “fullblown” Franks hearing until they make a “substantial preliminary showing” that the government affiant (in this case Agent Rossi) lied in his affidavit, as opposed to showing that the informants lied to Agent Rossi. Nevertheless, defendants contend that it was a “manifest abuse of discretion” for the district court not to examine the informants as well as Agent Rossi in order to determine who was telling the truth. We disagree. In Franks v. Delaware, the Supreme Court held: [W]here the defendant makes a substantial preliminary showing that a false statement knowingly and intentionally, or with reckless disregard for the truth, was included by the affiant in the warrant affidavit, and if the allegedly false statement is necessary to the finding of probable cause, the Fourth Amendment requires that a hearing be held at the defendant’s request. In the event that at that hearing the allegation of perjury or reckless disregard is established by the defendant by a preponderance of the evidence, and, with the affidavit’s false materia] set to one side, the affidavit’s remaining content is insufficient to establish probable cause, the search warrant must be voided and the fruits of the search excluded to the same extent as if probable cause was lacking on the face of the affidavit. 438 U.S. at 155-56, 98 S.Ct. at 2676-77. In Franks, the defendant challenged his rape conviction on fourth amendment grounds arguing that the police had deliberately lied in the affidavit used to procure a warrant to search his apartment. In the affidavit, the police officers stated that they had contacted the defendant’s employers who" }, { "docid": "56917", "title": "", "text": "included intentionally or recklessly. If not, the inquiry is at an end and the fruits of the search should not be suppressed. However, should the defendant meet his burden of establishing that false information in the affidavit was included as the result of intentional deceit or reckless disregard, the court must expand its inquiry and determine whether the affidavit, when stricken of its falsity, is nonetheless sufficient to establish probable cause for issuance of the search warrant. In the present case, the court ruled against Whitley on the question of intentional deceit or reckless disregard for the truth, and accordingly did not reach the second issue. The Franks decision did not define “reckless disregard for the truth,” other than to suggest that the standard required more than mere negligence on the part of the affiant. Franks, 438 U.S. at 171, 98 S.Ct. 2674. In United States v. Williams, 737 F.2d 594 (7th Cir.1984), we defined the concept of “reckless disregard for the truth,” as used in the context of a Franks hearing, as follows: [T]o prove reckless disregard for the truth, the defendants had to prove that the affiant “in fact entertained serious doubts as to the truth of his allegations.” Because states of mind must be proved circumstantially, a factfinder may infer reckless disregard from circumstances evincing “obvious reasons to doubt the veracity” of the allegations. Id. at 602 (citations omitted). Subsequent decisions have slightly expanded the Franks principle to include the state of mind not only of the affiant, but also of those governmental agents from whom the affiant received false information incorporated into the affidavit. In other words, the validity of the search is not saved if the governmental officer swearing to the affidavit has incorporated an intentional or reckless falsehood told to him by another governmental agent. United States v. Pritchard, 745 F.2d 1112, 1118 (7th Cir.1984); United States v. McAllister, 18 F.3d 1412, 1417 (7th Cir.1994). In the context of the denial of a Franks motion following an evidentiary hearing, we review the court’s decision for clear error. Williams, 737 F.2d at 602. Under this" }, { "docid": "5913516", "title": "", "text": "its ruling explicit. IV. Admission of Evidence fkom Search On May 18, 1990, the district court denied, without elaboration, the defendants’ motion to suppress evidence seized in a search of ADM’s offices and warehouse. In responding to our January 8, 1993 request to set forth its reasons for denying the defendants’ motion to suppress the tapes made by Bowers and Roth, the district court has provided this court with a second memorandum, also mistakenly believed by the district court to have been filed in 1990, explaining in detail why the court refused to suppress evidence seized in the search of ADM’s offices. United States v. Dale, Crim. No. 90-0027, Memorandum Order (D.D.C. Jan. 21, 1993) (“Warehouse Memorandum”). In their supplemental briefs,. the parties have addressed the search and suppression issues in light of the district court’s memorandum. A. Franks Hearing The defendants argue that the trial court erred in refusing to hold an evidentiary hearing under Franks v. Delaware, 438 U.S. 154, 98 S.Ct. 2674, 57 L.Ed.2d 667 (1978), to investigate alleged defects in the affidavit of Defense Criminal Investigation Service Special Agent Heidi Shintani supporting the warrant to search ADM’s offices and warehouse in Washington, D.C. Although a search warrant is presumptively valid, if the defendant is able to make a substantial preliminary showing that a false statement knowingly and intentionally, or with reckless disregard for the truth, was included by the affiant in the warrant affidavit, and , if the allegedly false statement is necessary to the finding of probable cause, the Fourth Amendment requires that a hearing be held at the defendant’s request. Id. at 155-56, 98 S.Ct. at 2676; see United States v. Sobamowo, 892 F.2d 90, 94 (D.C.Cir.1989), cert. denied, 498 U.S. 825, 111 S.Ct. 78, 112 L.Ed.2d 51 (1990). The defendants contend that they made such a showing before the district court by proffering evidence that: allegations in the warrant that ADM illegally substituted products in executing contracts with the Army were false and the affiant Shintani acted with reckless disregard for the truth by failing to investigate the validity of the allegations; the" }, { "docid": "1400566", "title": "", "text": "about the informant in the affidavit. Thus, McNamara either was not truthful or was reckless in his disregard for the truth by relying on the informant to swear out a warrant. When a defendant attempts to show that an affidavit for a search warrant contained false information, the defendant must make a “substantial preliminary showing that a false statement knowingly and intentionally, or with reckless disregard for the truth, was included by the affiant in the warrant affidavit, and if the allegedly false statement is necessary to the finding of probable cause,” the court must conduct a hearing on the issue upon the defendant’s request. Franks v. Delaware, 438 U.S. 154, 155-56, 98 S.Ct. 2674, 57 L.Ed.2d 667 (1978). If at the hearing, the defendant can show by a preponderance of the evidence that the affiant either knowingly or with reckless disregard included a false statement in the affidavit, then any evidence and fruits of the search would be excluded. Id. at 156, 98 S.Ct. 2674. This substantial showing is necessary because a challenge to the veracity of the search warrant affidavit must overcome the presumption that the affidavit is valid. Id. at 171, 98 S.Ct. 2674. The intentionally or recklessly false statement must be made by the affiant herself, not the non-governmental informant. Id.; Mays, 134 F.3d at 816 (“Franks recognizes that information an affiant reports may not ultimately be accurate, and is willing to tolerate such a result at that early stage of the process, so long as the affiant believed the accuracy of the statement at the time it was made”). Thus, even if we determined that probable cause did not exist to search 5492 Florida, Rodriguez-Suazo’s attack on the veracity of the confidential informant’s statements would be insufficient to meet his burden for a Franks evidentiary hearing without a substantial showing that the affiant’s statements were intentionally or recklessly false. See United States v. Giacalone, 853 F.2d 470, 477 (6th Cir.1988) (holding that the defendants’ affidavits did not amount to a substantial showing that the government affiant, and not the informants, made intentionally or recklessly false" }, { "docid": "2820220", "title": "", "text": "or intentionally, or with reckless disregard for the truth, was included by the affiant in the warrant affidavit, and if the allegedly false statement is necessary to the finding of probable cause, the Fourth Amendment requires that a hearing be held at the defendant’s request.” Franks, 438 U.S. at 155-56, 98 S.Ct. at 2676. In addition, as the Franks Court went on to explain, to mandate an evidentiary hearing for the purpose of challenging a warrant affidavit, “the challenger’s attack must be more than conclusory and must be supported by more than a mere desire to cross-examine” the affiant. Radtke, 799 F.2d at 310 (quoting Franks, 438 U.S. at 171, 98 S.Ct. at 2684). In this case, both the Magistrate Judge and the district court found and stated that although McAllister may have made a substantial preliminary showing that the Cl “may have lied” to Detective Blakley regarding the dates on which he had observed the defendant’s marijuana plants, he had failed to establish that Blakley knew or should have known of those possible falsifications. Generally, “the fact that a third party lied to the affiant, who in turn included the lies in a warrant affidavit, does not constitute a Franks violation. A Franks violation occurs only if the affiant knew the third party was lying, or if the affiant proceeded in reckless disregard of the truth.” United States v. Pritchard 745 F.2d 1112, 1119 (7th Cir.1984) (quoting United States v. Dorfman, 542 F.Supp. 345, 366 (N.D.Ill.1982)). As the Supreme Court has explained, “the deliberate falsity or reckless disregard whose impeachment is permitted ... is only that of the affiant, not of any non-governmental informant.” Franks, 438 U.S. at 171, 98 S.Ct. at 2684 (emphasis added). On the other hand, if the defendant establishes that the third party who provided the affiant with false information was not a “non-governmental informant” but was a “government agent,” a Franks hearing may still be in order: “In United States v. Dorfman, 542 F.Supp. 345 (N.D.Ill.1982) aff'd sub nom. United States v. Williams, 737 F.2d 594 (7th Cir.1984), the court noted that while allegations" }, { "docid": "22266692", "title": "", "text": "gambling, and the murders and attempted murders of suspected informants. The electronic surveillance produced evidence that the government intended to introduce at Balistrieri’s trial. After indictment, Balistrieri moved for an evidentiary hearing, pursuant to Franks v. Delaware, 438 U.S. 154, 98 S.Ct. 2674, 57 L.Ed.2d 667 (1978), on the question whether the electronic surveillance evidence should be suppressed because the government made false statements in its affidavit knowingly and intentionally, or with reckless disregard for the truth. On July 6, 1982, the magistrate denied the motion. Balistrieri appealed to the district court, which affirmed the magistrate on October 29, 1982. In Franks v. Delaware, the Supreme Court held that where the defendant makes a substantial preliminary showing that a false statement, knowingly and intentionally, or with reckless disregard for the truth, was included by the affiant in the warrant affidavit, and if the allegedly false statement was necessary to the finding of probable cause, the Fourth Amendment requires that a hearing be held at the defendant’s request. Id. at 155-56, 98 S.Ct. at 2676. If the defendant proves his contention at the hearing, and if the affidavit’s remaining content is insufficient to establish probable cause, then the search warrant must be voided and the fruits of the search excluded. Id. at 156, 98 S.Ct. at 2676. In his motion for a Franks hearing, Bal-istrieri charged that Agent De Marco’s affidavit contained a number of knowingly false statements purporting to report statements made by Balistrieri in the presence of undercover agent Gail Cobb and others. Balistrieri claimed that he had never made the statements attributed to him and submitted his own affidavit and the affidavits of other persons alleged to have been present when the statements were supposed to have been made. Each affiant stated that no such statements had been made. The magistrate held that the statements in question were material; without them the De Marco affidavit would not contain sufficient probable cause. But he denied the motion nevertheless, because Balistrieri had not made a sufficiently substantial preliminary showing that the statements were knowingly and intentionally false or were made" }, { "docid": "8023790", "title": "", "text": "issued based solely on the affidavit of Agent Jody Cooper which cited the uncorroborated statements of an alleged coconspirator”; (2) “[n]o underlying criminal charges were pending against Carolyn Clanton at the time Agent Jody Cooper secured the warrant for Ms. Clanton’s arrest”; and (3) “[t]he arrest warrant for Carolyn Clanton was issued without the presentment, indictment, or information in violation of ... the 5th Amendment of the United States Constitution.” (Id. at 4-5). The district court found that these allegations, if true, would constitute a violation of Clanton’s clearly established constitutional rights. We agree. It has long been clearly established that the Fourth Amendment’s warrant requirement is violated when “a false statement knowingly and intentionally, or with reckless disregard for the truth, was included by the affiant in the warrant affidavit” if the false statement is necessary to a finding of probable cause. Franks v. Delaware, 438 U.S. 154, 155-56, 98 S.Ct. 2674, 2676, 57 L.Ed.2d 667 (1978); see also Kaul v. Stephan, 83 F.3d 1208, 1213 n. 4 (10th Cir.1996) (“A state officer is not automatically shielded from Section 1983 liability merely because a judicial officer approves a warrant.”) (citing Malley v. Briggs, 475 U.S. 335, 344-46, 106 S.Ct. 1092, 1097-99, 89 L.Ed.2d 271 (1986)). Under Franks, it is the deliberate falsity or reckless disregard “of the affiant, not of any nongovernmental informant” that is unconstitutional. Franks, 438 U.S. at 171, 98 S.Ct. at 2684. Thus, if Cooper relied in good faith on statements of Michael Eaves’s that turned out to be false, there would be no Franks violation. Here, however, Clanton has alleged that Cooper knowingly and intentionally swore to the veracity of Michael Eaves’s confession, while knowing that confession to be false: a classic Franks violation. The district court found that there are triable issues of material fact as to whether Cooper in fact did so. Clanton’s claim is clearly legally sufficient. Cooper argues that Clanton merely “alleged in a conclusory fashion that Cooper knew Michael Eaves’ statements were false, she came forward with no facts or factual allegations supporting that argument.” However, the district court found" }, { "docid": "1457573", "title": "", "text": "supporting an application for a search warrant “where the defendant makes a substantial preliminary showing that a false statement knowingly and intentionally, or with reckless disregard for the truth, was included by the affiant in the warrant affidavit, and if the allegedly false statement is necessary to the finding of probable cause.” 438 U.S. 154, 155-56, 98 S.Ct. 2674, 2676, 57 L.Ed.2d 667 (1978) (emphasis added). Franks makes it clear that affidavits supporting a search warrant are presumed valid, and that the “substantial preliminary showing” that must be made to entitle the defendant to an eviden-tiary hearing must focus on the state of mind of the warrant affiant, that is the police officer who sought the search warrant. 438 U.S. at 171, 98 S.Ct. at 2684. The defendant must offer evidence showing either that the warrant affiant lied or that the warrant affiant recklessly disregarded the truth because he “in fact entertained serious doubts as to the truth of his allegations” or had “obvious reasons to doubt the veracity of the allegations.” United States v. Williams, 737 F.2d 594, 602 (7th Cir.1984), quoting St. Amant v. Thompson, 390 U.S. 727, 731, 88 S.Ct. 1323, 1325, 20 L.Ed.2d 262 (1968) (internal quotation marks omitted). Jones’ request for a Franks hearing rests on his assertion that Jane Doe provided false information in her affidavit. He claims that he could not have sold marijuana to Doe in Springfield on January 24, 1998, as she alleges, because he was at his sister’s apartment in Chicago with his father and his father’s girlfriend at the time. He presents affidavits from his wife, sister, father and his father’s girlfriend in support of his alibi and argument. His argument is, however, misdirected. “[T]he fact that a third party bed to the affiant, who in turn included the lies in a warrant affidavit, does not constitute a Franks violation. A Franks violation occurs only if the affiant knew the third party was lying, or if the affiant proceeded in reckless disregard of the truth.” United States v. McAllister, 18 F.3d 1412, 1417 (7th Cir.1994), quoting United States v." }, { "docid": "2820218", "title": "", "text": "on the grounds that the Cl was acting as a police agent when he gave the information to Detective Blakley concerning the 50 marijuana plants he had observed in McAllister’s attic “within the past 72 hours.” DISCUSSION We review a district court’s “factual and legal determinations on a motion to suppress for clear error.” United States v. Rice, 995 F.2d 719, 722 (7th Cir.1993) (citations omitted). Under this standard, we will not hold that a trial judge’s denial of a motion to suppress is clearly erroneous unless, after reviewing the record as a whole, we are of “the definite and firm conviction that a mistake has been committed.” United States v. Soria, 965 F.2d 436, 439 (7th Cir.1992) (citations omitted). The Supreme Court has held that because the Fourth Amendment prohibits police from intentionally or recklessly submitting false statements in a warrant affidavit, the defendant may obtain a hearing to challenge a warrant affidavit if (1) the defendant makes a “substantial preliminary showing” that the affiant has intentionally or recklessly included a false statement in the warrant affidavit and (2) the false statement was material, i.e., was necessary for a finding of probable cause to issue the warrant. Franks, 438 U.S. at 155-56, 98 S.Ct. at 2676-77. “A Franks hearing affords a defendant the opportunity to show, by a preponderance of the evidence, that the warrant affidavit contained perjury or a reckless disregard for the truth. If the defendant meets this burden, the court will set aside that ‘false material’ contained in the warrant affidavit, and if probable cause cannot be established from the valid and truthful portion of the affidavit, the entire search is deemed to be invalid and the ensuing search is void.” United States v. Radtke, 799 F.2d 298, 309 (7th Cir.1986) (quoting United States v. McDonald, 723 F.2d 1288, 1292 (7th Cir.1983)). The Supreme Court directs that search warrant affidavits must be presumed to be valid. Franks, 438 U.S. at 171, 98 S.Ct. at 2684. To overcome this presumption, the defendant seeking a Franks hearing must make a “substantial preliminary showing that a false statement knowingly" }, { "docid": "22295691", "title": "", "text": "movant establishes by a preponderance of the evidence that: (1) a factual statement made in an affidavit supporting a warrant is false; (2) the affiant made the false statement either knowingly and intentionally or with reckless disregard for the truth; and (3) without the false statement, the remainder of the affidavit is insufficient to establish probable cause. Franks v. Delaware, 438 U.S. 154, 155-56, 98 S.Ct. 2674, 2676, 57 L.Ed.2d 667 (1978). Although McNeese has not alleged that statements in the affidavit were false, he has insisted that, had three material omissions of fact been included in the affidavit, probable cause would not have been found. These three critical defects in the agent’s sworn statement supporting the warrant rendered the affidavit insufficient to support a finding of probable cause, assert appellants. The Seventh Circuit tests an affidavit’s allegedly omitted statements under the same standard that the Franks Court has established for false statements. United States v. Williams, 737 F.2d 594, 604 (7th Cir.1984), cert. denied, 470 U.S. 1003, 105 S.Ct. 1354, 84 L.Ed.2d 377 (1985). The omission of a fact from an affidavit is material only if it amounts to deliberate falsehood or reckless disregard for the truth. United States v. Kimberlin, 805 F.2d 210, 252 (7th Cir.1986), cert. denied, 483 U.S. 1023, 107 S.Ct. 3270, 97 L.Ed.2d 768 (1987). Mere negligence by the affi-ant does not constitute reckless disregard for the truth. United States v. A Residence Located at 218 Third Street, 805 F.2d 256, 258 (7th Cir.1986). Nor is an omission material if, in context, the information was of such minimal significance that its omission could not reasonably have affected the magistrate’s judgment in finding probable cause to search. Kimberlin, 805 F.2d at 251. This court has made clear that a defendant seeking a Franks hearing bears a substantial burden to demonstrate probable falsity. United States v. Hornick, 815 F.2d 1156, 1158 (7th Cir.1987). He must offer direct evidence of the affiant’s state of mind or inferential evidence that the affiant had obvious reasons for omitting facts in order to prove deliberate falsehood or reckless disregard. Residence Located" }, { "docid": "2973346", "title": "", "text": "Hammond, the officer seeking a warrant failed to provide “any detail” as to the informant's reliability. Id. at 772. Here, there was ample evidence of the informant’s reliability. In addition, Hammond is inapplicable because the informant's tip in the instant case is not the only piece of evidence in the affidavit to support the judge’s probable cause finding and warrant issuance. . The dissent cites United States v. Zimmer, 14 F.3d 286, 287-89 (6th Cir.1994), and United States v. Thomas, Nos. 92-6207, 92-6208, 1993 WL 337553, at *5 (6th Cir. Aug.31, 1993), in support of the assertion that “electrical-usage records ... cannot form the sole basis of probable cause.” Dissenting Op. at 315. We question the relevance of that assertion, given that there is more than the mere electrical records in the instant case to support the probable cause finding. Nevertheless, we feel it worth noting that Zimmer and Thomas are merely examples of this Court affirming probable cause findings that relied in part on electrical-usage records. . At this point in his brief, Thomas also asserts that Agent Hardcastle's information was \"included in reckless disregard for the truth. Pursuant to Franks v. Delaware, these allegations should be excised.\" Under Franks and its progeny, the district court is required to hold a hearing as to the sufficiency of the affidavit if the defendant can make a substantial preliminary showing that a false statement necessary to the finding of probable cause was made knowingly and intentionally or with reckless disregard for the truth and was included in the affidavit. Franks, 438 U.S. at 155-56, 98 S.Ct. 2674. Thomas, although citing to Franks, never asks this Court to review the decision of the district court denying a Franks hearing. Rather, he only asks that certain statements in the affidavit be excised. We agree with the district court that Thomas has failed to show that the affiant in this case knowingly and intentionally inserted a false statement into the affidavit. The only allegation that comes close to this standard revolves around the affiant’s failure to include the fact that the marijuana-sale information was" }, { "docid": "12114304", "title": "", "text": "to a hearing to challenge the validity of a warrant affidavit. Franks, 438 U.S. at 171-72, 98 S.Ct. 2674. However, in order to overcome the “presumption of validity” accorded to warrant affidavits, ibid., a defendant must first satisfy two requirements: First, the defendant must make a “substantial preliminary showing that a false statement knowingly and intentionally, or with reckless disregard for the truth, was included by the affiant in the warrant affidavit.” Id. at 155-56, 98 S.Ct. 2674. Second, he must also show that the allegedly false statement is “necessary to the finding of probable cause.” Id. at 156, 98 S.Ct. 2674. When reviewing a district court’s denial of a Franks hearing, we review the district court’s factual findings for clear error and its conclusions of law de novo. United States v. Graham, 275 F.3d 490, 505 (6th Cir.2001). In support of his motion for a Franks hearing, Bucio-Cabrales argued to the district court that Agent Durbin’s supporting affidavit for an application to search his residence was defective because it specified the wrong address. As the language from Franks’s first requirement suggests, however, the defendant has the burden to show not only a false statement in a warrant affidavit, but also knowledge of the statement’s falsity or, at the very least, “reckless disregard for the truth” on the part of the affiant. United States v. Mastromatteo, 538 F.3d 535, 545 (6th Cir.2008). Where the defendant does no more than allege that an affiant made false statements, the defendant is not entitled to a hearing. See, e.g., United States v. Foulsen, 655 F.3d 492, 505 (6th Cir.2011). In this case, the district court denied Bucio-Cabrales’s motion on the ground that he failed to supplement his bare allegations of a false statement with any evidence that Agent Durbin acted “knowingly or intentionally, or with reckless disregard for the truth.” We agree. Because Bucio-Cab-rales failed to produce any evidence that would satisfy the burden required for a Franks hearing, the district court did not err when it denied Bucio-Cabrales’s motion. In his appellate brief, Bucio-Cabrales seeks to remedy the deficiency in his trial-court" }, { "docid": "4275009", "title": "", "text": "cause cannot be quantified by simply counting the number of days between the occurrence of the facts supplied and the issuance of the affidavit.” Koelling, 992 F.2d at 822. “Time factors must be examined in the context of a specific case and the nature of the crime under investigation.” Id. Here, a mere seven days had passed since the execution of the first warrant. In seven days, the defendant would be unlikely to dispose of a tool as expensive as a digital camera. It was therefore highly probable the camera remained in the residence where it had been spotted only days before. Finally, Gleich argues Agent Pfennig made false and reckless statements in support of his application for the third warrant. A search warrant may be deemed invalid if the issuing judicial officer’s probable cause determination was based upon an affidavit containing a deliberate or reckless falsehood. United States v. Box, 193 F.3d 1032, 1034 (8th Cir.1999) (citing Franks v. Delaware, 438 U.S. 154, 171, 98 S.Ct. 2674, 57 L.Ed.2d 667 (1978)). A defendant challenging such a warrant must make a substantial preliminary showing that the false statement knowingly and intentionally, or with reckless disregard for the truth, was included by the affiant in the warrant affidavit. Id. at 1034-35. If the defendant can make such a showing, and if the alleged false statement forms the basis for probable cause, the Fourth Amendment requires the court to conduct a hearing at the defendant’s request. United States v. Searcy, 181 F.3d 975, 980 n. 6 (8th Cir.1999). If the defendant presents no proof that the affiant lied or recklessly disregarded the truth, the court is not required to conduct a hearing. United States v. Mathison, 157 F.3d 541, 548 (8th Cir.1998). In his affidavit in support of the third search warrant, Agent Pfennig stated the first search warrant authorized the seizure of three computers and authorized the BCI to conduct an analysis of the computers. Gleich contends these statements were deliberately or recklessly false, relating back to his previous argument the first warrant authorized the search and seizure of only one" }, { "docid": "20887", "title": "", "text": "protect, through resort to boilerplate, vague, or unduly brief affidavits. It takes but a few minutes more of the affiant’s time to ask the informant about, for example, the amount or form of drugs seen, and to include such information in the affidavit. This kind of information is essential “if the magistrate is to perform his detached function and not serve merely as a rubber stamp for the police.” Id. II. Franks Hearing In Franks v. Delaware, 438 U.S. 154,98 S.Ct. 2674, 57 L.Ed.2d 667 (1978), the Supreme Court considered whether a defendant in a criminal proceeding ever has the right under the Fourth and Fourteenth Amendments “subsequent to the ex parte issuance of a search warrant to challenge the truthfulness of factual statements made in an affidavit supporting the warrant.” Id. at 155, 98 S.Ct. at 2676. Determining that a challenge to a warrant’s veracity must be permitted under certain circumstances, the Court held that “where the defendant makes a substantial preliminary showing that a false statement knowingly and intentionally, or with reckless disregard for the truth, was included by the affiant in the warrant affidavit, and if the allegedly false statement is necessary to the finding of probable cause, the Fourth Amendment requires that a hearing be held at the defendant’s request.” Id. at 155-56, 98 S.Ct. at 2676-77. Mere allegations of deliberate falsehood or of reckless disregard for the truth are insufficient to mandate an evidentiary hearing; they must be accompanied by an “offer of proof.” Id. at 171, 98 S.Ct. at 2684. And the Court made clear that a warrant’s veracity can be challenged only through a showing that the affiant knowingly or with reckless disregard of the truth included a false statement in the affidavit. Id. It is not enough to show that the informant deliberately lied to an unsuspecting affiant. Id. Schauble claims the trial court erred in denying his motion for a Franks hearing and the production of the confidential informant. In support of his motion, Schauble supplied the trial court with his own affidavit and that of another person who was with" } ]

[ { "docid": "7560402", "title": "", "text": "Indian. Under the random jury selection plan for the District of South Dakota, petit jury panels are selected from voter registration lists. This plan was approved by the Reviewing Panel of this Circuit. The Sixth Amendment guarantee to trial by jury, Taylor v. Louisiana, 419 U.S. 522, 528-529, 95 S.Ct. 692, 42 L.Ed.2d 690 (1976), the Fifth Amendment guarantee to due process, United States v. Olson, 473 F.2d 686, 688 (8th Cir.), cert. denied, 412 U.S. 905, 93 S.Ct. 2291, 36 L.Ed.2d 970 (1973), and the Federal Jury Selection and Service Act of 1968 mandate that petit juries shall be selected from a representative cross-section of the community. Jury wheels, pools of names, panels or venires from which juries are drawn must not systematically exclude distinctive groups in the community. Taylor v. Louisiana, supra, 419 U.S. at 538, 95 S.Ct. 692. See also United States v. Gordon, 455 F.2d 398, 401 (8th Cir. 1972); United States v. Williams, 421 F.2d 529, 531-532 (8th Cir. 1970); Hansen v. United States, 393 F.2d 763, 769 (8th Cir.), cert. denied, 393 U.S. 833, 89 S.Ct. 103, 21 L.Ed.2d 103 (1968). However, a defendant in a criminal case is not constitutionally entitled to demand a proportionate number of his race on the jury which tries him. Swain v. Alabama, 380 U.S. 202, 208, 85 S.Ct. 824, 13 L.Ed.2d 759 (1965). Accord, Taylor v. Louisiana, supra, 419 U.S. at 538, 95 S.Ct. 692; United States v. Freeman, 514 F.2d 171,173 (8th Cir. 1975); United States v. Gordon, supra at 401. Compare United States v. Jenkins, 496 F.2d 57 (2nd Cir. 1974), cert. denied, 420 U.S. 925, 95 S.Ct. 1119, 43 L.Ed.2d 394 (1975). The burden of establishing a prima facie showing of discrimination or systematic exclusion in the selection of the jury array is on the defendant. United States v. Williams, supra at 531. Whiting has not met that burden. He alleges only that there was an underrepresentation of Indians on the single jury panel from which the petit jury in the instant case was chosen. The fact that a single panel does not represent" } ]

[ { "docid": "2461150", "title": "", "text": "venires from which juries were selected is not fair and reasonable in relation to their population percentage. Both Murray and Buckley have conveniently misquoted the Duren test and argue that because their particular jury panel contained no African-Americans, they have met their burden of proof.' Appellants, however, must show more than that their particular panel was unrepresentative. Du-ren states that we look at the “venires” from which “juries” are selected, id. at 364, 99 S.Ct. at 668, and it has long been the case that defendants are not entitled to a jury of any particular composition — only to a panel from which distinctive groups were not “systematically excluded.” Taylor, 419 U.S. at 538, 95 S.Ct. at 702. Appellants instead rely solely upon the court’s statement that African-Americans constitute approximately 12% of the community. The evidence of record, however, weighs decidedly in favor of the government. Ms. Palmer testified that there were Afri can-Amerieans in the jury pool from which this particular venire panel was chosen. The judge stated that this was the first time he had ever seen a panel without any blacks on it. Out of a 250-300 person pool, it is not at all implausible that none of the 40 persons selected were black: statistically, only 30-36 members of the total pool would be black. Appellants have made no attempt to show that the number of blacks on previous panels or in the April to September pool did not substantially reflect their population percentage in the community. Thus, Appellants have not met their burden. Furthermore, Appellants have completely failed to make any showing whatever of systematic exclusion, and therefore also have not satisfied the third prong of their burden. Appellants must show that the underrepresentation is inherent in the jury selection process used. Ford, 841 F.2d at 685. Appellants have done nothing more than assert that completing a panel with persons stricken from other panels systematically excludes blacks. They have neither asserted nor provided even a shred of evidence indicating that only whites are reassigned, while blacks are thrown back into the small wheel. Obviously, more than" }, { "docid": "7937394", "title": "", "text": "take additional measures. The Appellants have failed to show error, the first prong of our plain-error review. D. The Appellants contend that the Western District of Missouri’s juror selection plan violates the fair-cross-section requirement of the Sixth Amendment. To establish a fair-cross-section claim, the Appellants are required to show: (1) that the group alleged to be excluded is a “distinctive” group in the community; (2) that the representation of this group in venires from which juries are selected is not fair and reasonable in relation to the number of such persons in the community; and (3) that this under-representation is due to systematic exclusion of the group in the jury-selection process. United States v. Jefferson, 725 F.3d 829, 835 (8th Cir.2013) (quoting United States v. Sanchez, 156 F.3d 875, 879 (8th Cir.1998)). The Appellants argue that their right to an “impartial jury drawn from a fair cross section of the community,” Taylor v. Louisiana, 419 U.S. 522, 536, 95 S.Ct. 692, 42 L.Ed.2d 690 (1975), was violated because their juror pool did not include any African-American jurors. The Appellants failed, however, to provide any data on the racial makeup of juror pools in the Western District of Missouri or any statistical analyses showing underrepresentation. Cf United States v. Rogers, 73 F.3d 774, 776-77 (8th Cir.1996) (providing examples of the type of statistical data needed to establish a prima facie case). The only evidence they provide in support of their argument, aside from their own observation that the juror pool lacked African-American jurors, is census data showing the total population of African-Americans in Springfield, Missouri and Missouri as a whole. We reject the Appellants’ Sixth Amendment fair-cross-section claim because of their inability to provide any evidence that the jury panel was not chosen from a fair and impartial cross-section of the community. Jefferson, 725 F.3d at 835; see also Singleton v. Lockhart, 871 F.2d 1395, 1399 (8th Cir.1989) (“Evidence of a discrepancy on a single venire panel cannot demonstrate systematic exclusion.”). III. Separately, Holmes raises three arguments on appeal: (1) the district court erred when it admitted, pursuant to Federal Rule" }, { "docid": "23255928", "title": "", "text": "serve as jurors in the Southern District of Mississippi. See Brown v. Allen, 344 U.S. 443, 474, 73 S.Ct. 397, 416, 97 L.Ed. 469 (1953) (holding that a jury list must reasonably reflect “a cross-section of the population suitable in character and intelligence for that civic duty”). Moreover, “[Defendant] must demonstrate ... not only that [African-Americans] were not adequately represented on his jury but also that this was the general practice in other venires.” Timmel v. Phillips, 799 F.2d 1083, 1086 (5th Cir.1986); see United States v. DeFries, 129 F.3d 1293, 1301 (D.C.Cir.1997) (“Underrepresentation of a cognizable group in a single venire, without evidence of a greater pattern, is insufficient to establish the ‘systematic exclusion of the group’ required by Duren ... From a small sample size based on one venire it is difficult to determine whether the disparity is random or systemic.” (citations omitted)); Singleton v. Lockhart, 871 F.2d 1395, 1399 (8th Cir.1989) (“Evidence of a discrepancy on a single venire panel cannot demonstrate systematic exclusion.”); United States v. Miller, 771 F.2d 1219, 1228 (9th Cir.1985) (holding that the Duren Court’s use of the plural when describing “venires” from which “juries” are selected indicated that a violation of the underrepresentation element cannot be premised on underrepresentation on a single jury venire). Defendant provides absolutely no evidence regarding the percentage of African-Americans in the community, nor the composition of other venires drawn from the Southern District. Absent evidence of the percentage of African-Americans in the community, we have no baseline against which to compare the composition of Defendant’s venire. See Duren, 439 U.S. at 364, 99 S.Ct. 664 (“[T]he defendant must demonstrate the percentage of the community made up of the group alleged to be underrepresented, for this is the conceptual benchmark for the Sixth Amendment fair-cross-section requirement.”). We are therefore left to speculate as to whether 26% (20 African-Americans on the second venire out of 78 persons) is a significantly low percentage of African-Americans as compared to their percentage of the eligible jurors in the Southern District. Consequently, we reject Defendant’s contention that the venire for his second trial" }, { "docid": "19005550", "title": "", "text": "Cir.1990)); cf. Davis v. Warden, 867 F.2d 1003, 1013 (7th Cir.), cert. denied, 493 U.S. 920, 110 S.Ct. 285, 107 L.Ed.2d 264 (1989) (“Raw census figures showing a disparity as large as 25% may establish that blacks were underrepresented on the jury list.”); see also Duren, 439 U.S. at 366, 99 S.Ct. at 669 (requiring the defendant “to show that the under-representation of women, generally and on his venire, was due to their systematic exclusion”) (emphasis added). Neither has Greer offered any proof of the systematic exclusion prong. He has presented no direct evidence whatsoever of systematic exclusion of African-Americans in Eastern Division jury pools. Granted, Greer did submit the jury selection plan discussed above, yet he in no way attempted to show how the mechanics of this plan result in unrepresentative jury pools. Cf. Duren, 439 U.S. at 366, 99 S.Ct. at 669 (noting that the defendant’s “undisputed demonstration that a large discrepancy occurred not just occasionally but in every weekly venire for a period of nearly a year manifestly indicates that the cause of the under-representation [of women] was systematic—that is, inherent in the particular jury-selection process”). For its part, the Government asserts that of the current pool of qualified jurors available for service in the Eastern Division, 16.47% are African-American. The Government reports that according to the 1990 census, 18% of the adult population of the Eastern Division is African-American (Greer cites a less relevant total population figure of 19.6%). These figures depict only a de min-imis disparity between adult African-American population and qualified Afriean-Ameri-. can jurors, which will not likely satisfy the under-representation prong of the Duren test. See Ashley, 54 F.3d at 313; cf. Davis, 867 F.2d at 1013. To the contrary, in this Court’s estimation the close match between the population at large and the jury pool works against Greer on the under-representation prong of Duren, as well as on the systematic exclusion prong. The Court suspects that all this is not lost on Greer’s counsel, who seems to hinge his argument on using the Act as a new twist on the Duren analysis." }, { "docid": "19005548", "title": "", "text": "since followed by the Seventh Circuit in Guy and other eases. Under the Duren test, “to establish a prima facie violation of the fair cross-section requirement” Greer must show: (1) that the group alleged to be excluded is a distinctive group in the community; (2) that the representation of this group in venires from which juries are selected is not fair and reasonable in relation to the number of such persons in the community; and (3) that this under-representation is due to systematic exclusion of the group in the jury-selection process. Guy, 924 F.2d at 705. In summary, then, the three prongs of the Duren test are distinctive group, under-representation of the distinctive group, and systematic exclusion of the distinctive group. See id. Greer has satisfied the distinctive group prong; African-Americans unquestionably form a distinctive group. See Guy, 924 F.2d at 705 (noting that the parties did not dispute that African-Americans are a distinctive group). As for the under-representation prong, Greer has offered no evidence whatsoever that Eastern Division jury pools have under-represented African-Americans in the past or will do so in the future. Cf. Duren, 439 U.S. at 362-63, 99 S.Ct. at 667-68 (defendant offered statistics detailing how at each stage of jury pool creation women were under-represented). As such, Greer has failed to satisfy the under-representation prong. Greer’s counsel suggests that he may offer more proof of under-representation later. He cites a 1990 census figure of the percentage of African-Americans living in the Eastern Division while indicating that he might seek to amend his Motion based on how this figure compares with the percentage of African-Americans who appear in his venire when trial begins. Still, by itself, even a marked lack of members of a distinctive group in the specific venire from which a jury is chosen does not necessarily establish under-representation in the jury pool. See United States v. Ashley, 54 F.3d 311, 313 (7th Cir.1995) (“[A] discrepancy of less than 10% alone is not enough to demonstrate unfair or unreasonable representation of blacks on the venire.”) (citing United States v. McAnderson, 914 F.2d 934, 941 (7th" }, { "docid": "19005549", "title": "", "text": "the past or will do so in the future. Cf. Duren, 439 U.S. at 362-63, 99 S.Ct. at 667-68 (defendant offered statistics detailing how at each stage of jury pool creation women were under-represented). As such, Greer has failed to satisfy the under-representation prong. Greer’s counsel suggests that he may offer more proof of under-representation later. He cites a 1990 census figure of the percentage of African-Americans living in the Eastern Division while indicating that he might seek to amend his Motion based on how this figure compares with the percentage of African-Americans who appear in his venire when trial begins. Still, by itself, even a marked lack of members of a distinctive group in the specific venire from which a jury is chosen does not necessarily establish under-representation in the jury pool. See United States v. Ashley, 54 F.3d 311, 313 (7th Cir.1995) (“[A] discrepancy of less than 10% alone is not enough to demonstrate unfair or unreasonable representation of blacks on the venire.”) (citing United States v. McAnderson, 914 F.2d 934, 941 (7th Cir.1990)); cf. Davis v. Warden, 867 F.2d 1003, 1013 (7th Cir.), cert. denied, 493 U.S. 920, 110 S.Ct. 285, 107 L.Ed.2d 264 (1989) (“Raw census figures showing a disparity as large as 25% may establish that blacks were underrepresented on the jury list.”); see also Duren, 439 U.S. at 366, 99 S.Ct. at 669 (requiring the defendant “to show that the under-representation of women, generally and on his venire, was due to their systematic exclusion”) (emphasis added). Neither has Greer offered any proof of the systematic exclusion prong. He has presented no direct evidence whatsoever of systematic exclusion of African-Americans in Eastern Division jury pools. Granted, Greer did submit the jury selection plan discussed above, yet he in no way attempted to show how the mechanics of this plan result in unrepresentative jury pools. Cf. Duren, 439 U.S. at 366, 99 S.Ct. at 669 (noting that the defendant’s “undisputed demonstration that a large discrepancy occurred not just occasionally but in every weekly venire for a period of nearly a year manifestly indicates that the cause" }, { "docid": "2474871", "title": "", "text": "French, and Tolefree make various challenges to their respective sentences. II. Womack, who is black, initially asserts that his trial violated his due process rights under the Fifth Amendment and his right to an impartial jury under the Sixth Amendment because there were no black individuals on the venire panel. In essence, he claims that he was denied his constitutional right to a jury selected from a fair cross-section of the community where he was tried. In Duren v. Missouri, the Supreme Court set forth the elements that a defendant must establish in order to state a prima facie violation of the fair-cross-section requirement. Specifically, the defendant must show: (1) that the group alleged to be excluded is a “distinctive” group in the community; (2) that the representation of this group in venires from which juries are selected is not fair and reasonable in relation to the number of such persons in the community; and (3) that this under-representation is due to systematic exclusion of the group in the jury-selection process. Duren v. Missouri, 439 U.S. 357, 364, 99 S.Ct. 664, 668, 58 L.Ed.2d 579 (1979). Womack meets the first element in that blacks constitute a “distinctive” group in the Minnesota community. Nonetheless, Womack’s claim fails because he has not presented any evidence of the percentage of blacks in the Minnesota community or of the percentage of blacks on 1991 Minnesota venire panels. Accordingly, we are unable to gauge whether blacks have not been fairly and reasonably represented on Minnesota venire panels in relation to their presence in the community. See id. Moreover, he has failed to produce any evidence to show that any underrepresentation was due to a systematic exclusion of blacks from venire panels in the District of Minnesota. As we have stated previously, “[evidence of a discrepancy on a single venire panel cannot demonstrate systematic exclusion.” Singleton v. Lockhart, 871 F.2d 1395, 1399 (8th Cir.), cert. denied, 493 U.S. 874, 110 S.Ct. 207, 107 L.Ed.2d 160 (1989). Womack next argues that the government failed to produce certain discovery materials (including wiretap transcripts, witness statements, etc.) to his" }, { "docid": "7530229", "title": "", "text": "538, 95 S.Ct. 692. Therefore, “the makeup of any given venire is not significant, provided all rules for selection have been observed.” Duff, 76 F.3d at 125 (citing Holland v. Illinois, 493 U.S. 474, 482-83, 110 S.Ct. 803, 107 L.Ed.2d 905 (1990)). To make a prima facie case that the fair cross-section requirement has been violated, a defendant must show that: (1) the group allegedly excluded is a distinctive part of the community, (2) the representation of this group in venires from which juries are selected is not fair and reasonable in relation to the number of such persons in the community, and (3) this underrepresentation is due to systematic exclusion of the group in the jury selection process. Johnson v. McCaughtry, 92 F.3d 585, 590 (7th Cir.1996) (citing Duren v. Missouri, 439 U.S. 357, 364, 99 S.Ct. 664, 58 L.Ed.2d 579 (1979)). There is no dispute that African Americans or Hispanics may constitute a “distinctive part of the community,” thereby satisfying the first prong. As to the second prong, defendants argued the jury pool failed to reflect at least 8 percent of the community (although the correct percentage, as discussed previously, was something less than 6.1 percent). In either case, we have noted that “a discrepancy of less than ten percent alone is not enough to demonstrate unfair or unreasonable representation of blacks on the venire.” United States v. Ashley, 54 F.3d 311, 314 (7th Cir.1995) (citation omitted). Therefore, defendants fail to satisfy the second requirement. Defendants also fail to make a showing under the third prong that there was a systematic exclusion of African Americans and Hispanics. See Swain v. Alabama, 380 U.S. 202, 203-04, 85 S.Ct. 824, 13 L.Ed.2d 759 (1965). Defendants presented evidence of the district’s compliance with the proper methods of jury selection yet failed to provide a factual basis for a finding of improper methods of jury selection. “The mere observation that a particular group is underrepresented on a particular panel does not support a constitutional challenge.” Grose, 525 F.2d at 1119. The district court did not err in denying defendants’ constitutional challenge to" }, { "docid": "11108588", "title": "", "text": "Wharton-El must show: (1) that African-Americans are a “distinctive group in the community;” (2) that the representation of African-Americans in jury pools is not “fair and reasonable in relation to the number of [African-Americans] in the community;” and (3) that “this underrepresentation is due to systematic exclusion of [African-Americans] in the jury-selection process.” Duren v. Missouri, 439 U.S. 357, 364, 99 S.Ct. 664, 668, 58 L.Ed.2d 579 (1979); Floyd v. Garrison, 996 F.2d 947, 949 (8th Cir.1993). Although Wharton-El can establish the first element, Garcia, 991 F.2d at 491, he has failed to meet either the second or third element of the Duren test. Specifically, Wharton-El presented no reliable evidence of either the percentage of African-Americans in Dubuque County or of the percentage of African-Americans in Dubuque County jury pools. Wharton-El has shown only that no more than one African-American served on a jury in Dubuque County in the eighteen months before his trial; he has not shown that this is out of line with the percentage of African-Americans in Dubuque County. Further, Wharton-El has not produced any evidence that the alleged underrepresentation is due to a systematic exclusion of African-Americans from Dubuque jury pools. See United States v. Womack, 985 F.2d 395, 397 (8th Cir.1993), cert. denied, — U.S. —, 114 S.Ct. 276, 126 L.Ed.2d 227 (1993). The Iowa state court held that “[t]he evidence does not reflect any systematic exclusion of blacks in the jury panel selection.” Wharton, No. 15716, slip op. at 1. This factual finding is entitled to the presumption of correctness. 28 U.S.C. § 2254(d); see Marshall v. Lonberger, 459 U.S. 422, 432, 103 S.Ct. 843, 849-50, 74 L.Ed.2d 646 (1983). “Evidence of a discrepancy on a single venire panel cannot demonstrate systematic exclusion.” Singleton v. Lockhart, 871 F.2d 1395, 1399 (8th Cir.), cert. denied, 493 U.S. 874, 110 S.Ct. 207, 107 L.Ed.2d 160 (1989). Wharton-El has simply shown that no African-Americans sat on his jury. Unless Wharton-El shows one of the eight exceptions to the presumption of correctness under section 2254(d) or presents evidence of the percentage of African-Americans in Dubuque County as opposed" }, { "docid": "17342832", "title": "", "text": "adults one could expect in a venire proportional to either the general population or the general population under the age of seventy. The master reported that the discrepancy is clearly statistically significant, that the probability of a 20% discrepancy occurring in an age-neutral selection process is less than one in 100 quadrillion. The Supreme Court has found 20% underrepresentation to be constitutionally cognizable. See Smith v. Texas, 311 U.S. 128, 129, 61 S.Ct. 164, 164, 85 L.Ed. 84 (1940) (20% underrepresentation of blacks); Hernandez v. Texas, 347 U.S. 475, 74 S.Ct. 667, 98 L.Ed. 866 (1954) (exclusion of Mexican-Americans who comprised 14% of the community). We, therefore, find that petitioner has presented sufficient evidence of the under-representation of young adults to meet the second requirement of his prima facie case. D. Systematic Exclusion Finally, to establish his prima facie case, petitioner must show that the underrepresentation in his venire was due to the systematic exclusion of young adults from the jury pools. Duren v. Missouri, 439 U.S. at 366, 99 S.Ct. at 669. In Duren, the Supreme Court held that proof of intentional or purposeful discrimination is not required to show systematic exclusion. A large discrepancy occurring over a sustained period of time where there is an opportunity for arbitrary selection is sufficient to demonstrate that the exclusion of the underrepresentation is systematic — that is, inherent in the particular jury selection process utilized. 439 U.S. at 366, 99 S.Ct. at 669. See also United States v. Benmuhar, 658 F.2d 14, 19 (1st Cir.1981), cert. denied, 457 U.S. 1117, 102 S.Ct. 2927, 73 L.Ed.2d 1328 (1982); Murrah v. State of Arkansas, 532 F.2d 105 (8th Cir.1976); Smith v. Yeager, 465 F.2d 272, 280 (3d Cir.), cert. denied, 409 U.S. 1076, 93 S.Ct. 685, 34 L.Ed.2d 665 (1972) ; Stephens v. Cox, 449 F.2d 657, 659 (4th Cir.1971). Norfolk County employs the keyman system to select jury venires. Mass.Gen.Laws Ann. ch. 234, § 4 (1970). Under the key-man system, the board of selectmen prepares a list of inhabitants of good moral character, sound judgment, free from legal exceptions, not exempt, and" }, { "docid": "8613161", "title": "", "text": "that the state court’s excusal of the three African-Americans from his jury venire resulted from the “systematic exclusion” of African-Americans. McGinnis argues that the excusal of the three African-American venirepersons was systematic “because it resulted from the operation of Texas procedures by which juries are qualified, excused, or exempted from service” and because “article 35.03 creates a systematic danger of the underrepresentation of distinctive groups on criminal jury venires.” These contentions fail to satisfy the third requirement of the prima facie case. According to the Supreme Court, a process systematically excludes a group if the underrepresentation of that group is “inherent in the particular jury-selection process utilized.” Duren, 439 U.S. at 366, 99 S.Ct. at 669; Timmel v. Phillips, 799 F.2d 1083, 1086-87 (5th Cir.1986). McGin-nis presents insufficient evidence that un-derrepresentation of African-Americans is “inherent” in the excusal process under article 35.03. The only evidence McGinnis presents concerning the effect of article 35.03 involves his own venire. McGinnis asserts that the state court excused only sixteen out of the thirty non-African-American venirepersons who sought excu-sal under article 35.03, whereas the court excused all three African-American veni-repersons. Based on these figures, he contends that the trial court excused 100% of the African-American venirepersons seeking excusal, but excused only 53.3% of the non-African-American venirepersons seeking excusal. These statistics alone are insufficient to raise & genuine issue that the Texas excusal provision inherently causes African-Americans to be underrepresented. We have held that “[o]ne in’cidence of a jury venire being disproportionate is not evidence of a ‘systematic’ exclusion.” Timmel, 799 F.2d at 1087. Therefore, “a one-time example of underrepresentation of a distinctive group wholly fails to meet the systematic exclusion element in Duren.” Id.; see also Untied States v. De-Fries, 129 F.3d 1293, 1301 (D.C.Cir.1997); Singleton v. Lockhart, 871 F.2d 1395, 1399 (8th Cir.1989). McGinnis fails to present evidence sufficient to demonstrate that the excusal of three African-American venire-persons violated clearly established Sixth Amendment law. Accordingly, the district court did not err in granting summary judgment on McGinnis’s Sixth Amendment claim. B McGinnis also contends that the ex-cusal of three African-American venire-persons violated the" }, { "docid": "23255927", "title": "", "text": "v. Missouri, 439 U.S. 357, 364, 99 S.Ct. 664, 668, 58 L.Ed.2d 579 (1979). In so far as African-Americans constitute a distinctive group in the community, the first requirement of Defendant’s prima facie case is met. McGinnis v. Johnson, 181 F.3d 686, 689 (5th Cir.1999). With respect to the second requirement of his prima facie case, Defendant offers as evidence of underrepresentation the fact that the veni-re selected from the Jackson Division was comprised of 51 potential jurors, 21 of which were African-American; while the venire for the second trial, selected from the entire Southern District of Mississippi, was composed of 78 potential jurors, only 20 of which were African-American. In determining whether the venire is a fair and reasonable representation of the community, the relative compositions of Defendant’s two venire panels is not relevant. The Duren test instead focuses on whether the representation of African-Americans in the challenged venire was fair and reasonable in relation to the number of African-Americans in the community. The relevant community consisting of those individuals who are eligible to serve as jurors in the Southern District of Mississippi. See Brown v. Allen, 344 U.S. 443, 474, 73 S.Ct. 397, 416, 97 L.Ed. 469 (1953) (holding that a jury list must reasonably reflect “a cross-section of the population suitable in character and intelligence for that civic duty”). Moreover, “[Defendant] must demonstrate ... not only that [African-Americans] were not adequately represented on his jury but also that this was the general practice in other venires.” Timmel v. Phillips, 799 F.2d 1083, 1086 (5th Cir.1986); see United States v. DeFries, 129 F.3d 1293, 1301 (D.C.Cir.1997) (“Underrepresentation of a cognizable group in a single venire, without evidence of a greater pattern, is insufficient to establish the ‘systematic exclusion of the group’ required by Duren ... From a small sample size based on one venire it is difficult to determine whether the disparity is random or systemic.” (citations omitted)); Singleton v. Lockhart, 871 F.2d 1395, 1399 (8th Cir.1989) (“Evidence of a discrepancy on a single venire panel cannot demonstrate systematic exclusion.”); United States v. Miller, 771 F.2d 1219, 1228" }, { "docid": "2461149", "title": "", "text": "from which juries are selected is not fair and reasonable in relation to the number of such persons in the community; and (3) that this underrepresentation is due to systematic exclusion of the group in the jury-selection process. Id. at 364, 99 S.Ct. at 668. The government may rebut this prima facie case by showing that “a significant state interest [is] manifestly and primarily advanced by those aspects of the jury-selection process ... that result in the disproportionate exclusion of a distinctive group. Id. at 367-68, 99 S.Ct. at 670. Appellants have satisfied the first prong the Duren test, but they have not satisfied the other two. Duren and its progeny make crystal clear that a defendant’s prima facie case includes all three elements listed above, and each must be established before the government is required to justify an infringing selection procedure. See Duren, 439 U.S. at 367-69, 99 S.Ct. at 670-71; Ford v. Seabold, 841 F.2d 677, 681 (6th Cir.1988). Appellants have not established Duren’s second prong, i.e., that the representation of African-Americans in venires from which juries were selected is not fair and reasonable in relation to their population percentage. Both Murray and Buckley have conveniently misquoted the Duren test and argue that because their particular jury panel contained no African-Americans, they have met their burden of proof.' Appellants, however, must show more than that their particular panel was unrepresentative. Du-ren states that we look at the “venires” from which “juries” are selected, id. at 364, 99 S.Ct. at 668, and it has long been the case that defendants are not entitled to a jury of any particular composition — only to a panel from which distinctive groups were not “systematically excluded.” Taylor, 419 U.S. at 538, 95 S.Ct. at 702. Appellants instead rely solely upon the court’s statement that African-Americans constitute approximately 12% of the community. The evidence of record, however, weighs decidedly in favor of the government. Ms. Palmer testified that there were Afri can-Amerieans in the jury pool from which this particular venire panel was chosen. The judge stated that this was the first time" }, { "docid": "7589325", "title": "", "text": "jury service. Moreover, at the summons stage women were not only given another opportunity to claim exemption, but also were presumed to have claimed exemption when they did not respond to the summons. Thus, the percentage of women at the final, venire stage (14.5%) was much lower than the percentage of women who were summoned for service (26.7%). The resulting disproportionate and consistent exclusion of women from the jury wheel and at the venire stage was quite obviously due to the system by which juries were selected. Petitioner demonstrated that the underrepresentation of women in the final pool of prospective jurors was due to the operation of Missouri’s exemption criteria.... Women were therefore systematically underrepresented within the meaning of Duren. Id. at 366-67, 99 S.Ct. at 669 (emphasis in original). Neither factor relied upon by the Court in Duren is present here. First, the alleged claim of underrepresentation in this case is supported only by the results of two samples. In Duren, the underrepresentation was evident in every weekly venire for a period of nearly a year. Continued un-derrepresentation made it evident that such underrepresentation was systematic, or “inherent in the particular jury-selection process utilized.” Id. at 366, 99 S.Ct. at 669. Additionally, Ford points to nothing in the selection process which makes it obvious that the underrepresentation was due to the system itself. We do not believe that the selection of jurors from a neutral master list, without more, can be construed as “systematic exclusion” as defined in Du-ren merely because the percentage of women selected does not precisely mirror the percentage of women in the entire community. No evidence was presented by Ford indicating that the jury commissioners utilized a particular system or procedure in order to exclude women. Accordingly, because the underrepresentation of women was not a result of systematic exclusion, Ford’s petit jury challenge fails. 2. Ford also alleges that the underrepresentation of women and exclusion of young adults from the 33 Scott County jury commissioner positions selected during the 11-year period from 1971 to 1981 violates the due process and equal protection clauses of the" }, { "docid": "17342831", "title": "", "text": "experiences of a group in order to “save” it from prejudice and discrimination. The Supreme Court has steadfastly refused to do that with racial and economic groups and women, see, e.g., Peters v. Kiff, 407 U.S. 493, 503-04, 92 S.Ct. 2163, 2168-69, 33 L.Ed.2d 83 (1972), and we see no reason to follow a different path for age-groups. C. Underrepresentation Is Statistical: ly Significant In order to establish the second element in his prima facie case petitioner must show that young adults were significantly underrepresented in the challenged venires. Duren v. Missouri, 439 U.S. at 364, 99 S.Ct. at 668. To that end, petitioner presented statistical evidence compiled by a court appointed special master in Commonwealth v. Flaherty, Norfolk County Criminal No. 76318. The parties stipulated that the report be made part of the record. The report indicated that the venires for the period October 1, 1978, to October 31, 1980, contained approximately 20% fewer young adults than an age-blind selection process should have produced, and that the venires contained less than half the young adults one could expect in a venire proportional to either the general population or the general population under the age of seventy. The master reported that the discrepancy is clearly statistically significant, that the probability of a 20% discrepancy occurring in an age-neutral selection process is less than one in 100 quadrillion. The Supreme Court has found 20% underrepresentation to be constitutionally cognizable. See Smith v. Texas, 311 U.S. 128, 129, 61 S.Ct. 164, 164, 85 L.Ed. 84 (1940) (20% underrepresentation of blacks); Hernandez v. Texas, 347 U.S. 475, 74 S.Ct. 667, 98 L.Ed. 866 (1954) (exclusion of Mexican-Americans who comprised 14% of the community). We, therefore, find that petitioner has presented sufficient evidence of the under-representation of young adults to meet the second requirement of his prima facie case. D. Systematic Exclusion Finally, to establish his prima facie case, petitioner must show that the underrepresentation in his venire was due to the systematic exclusion of young adults from the jury pools. Duren v. Missouri, 439 U.S. at 366, 99 S.Ct. at 669. In Duren," }, { "docid": "7589323", "title": "", "text": "need not decide whether a disparity of 18.7% or 21.7% is unreasonable, however, since we conclude that women were not systematically excluded during the selection process. In Duren, a Missouri statute provided women an automatic exemption from jury service. The exemption was available at two different stages of the jury selection process. First, an exemption could be claimed on the questionnaire initially sent by the county. Only those questionnaires not claiming an exemption were placed in the jury wheel. Summonses were then sent on a weekly basis to prospective jurors randomly drawn from the jury wheel. Of the persons summoned, only 26.7% were female. Duren, 439 U.S. at 361-62, 99 S.Ct. at 667. A woman was also deemed to have claimed an exemption if she failed to appear for jury service on the appointed day. The final result in Duren was that only 14.5% of the persons on the postsummons weekly venire during the period in which the petitioner’s jury was chosen were female. Id. Basing its decision on two factors, the Court concluded that the underrepresenta tion was systematic. First, the “undisputed demonstration that a large discrepancy occurred not just occasionally but in every weekly venire for a period of nearly a year manifestly indicates that the cause of the underrepresentation was systematic — that is, inherent in the particular jury-selection process utilized.” Id. at 366, 99 S.Ct. at 669. Just as important, the Court also was able to establish when in the system the exclusion took place: Petitioner Duren’s statistics and other evidence also established when in the selection process the systematic exclusion took place. There was no indication the underrepresentation of women occurred at the first stage of the selection process — the questionnaire canvass of persons randomly selected from the relevant voter registration list. The first sign of a systematic discrepancy is at the next stage — the construction of the jury wheel from which persons are randomly summoned for service. Less than 30% of those summoned were female, demonstrating that a substantially larger number of women answering the questionnaire claimed either ineligibility or exemption from" }, { "docid": "14752640", "title": "", "text": "a neutral master list, without more, can[not] be construed as ‘systematic exclusion’ as defined in Du-ren merely because the percentage of women selected does not precisely mirror the percentage of women in the entire community.” In United States v. Allen, 160 F.3d 1096, 1104 (6th Cir.1998), we found that the defendants asserting that African Americans were systematically excluded because their venire panel was populated by persons previously stricken from other panels did not satisfy their burden because “they have neither asserted nor provided even a shred or evidence indicating that only whites are reassigned, while blacks are thrown back into the small wheel.” Here, Petitioner has demonstrated “more” than the selection of jurors from a neutral master list, he has offered evidence sufficient to raise an inference that the particular processes used by Kent County in constituting its qualified and second lists systematically exclude African American jurors and thus has satisfied the third prong of the prima facie test. Our conclusion that Petitioner has established a prima facie violation of the Sixth Amendment’s fair cross-section requirement, however, does not end the inquiry. Once a party has met the prima facie test, the burden shifts to the state to demonstrate that “a significant state interest [is] manifestly and primarily advanced by those aspects of the jury selection process, such as exemption criteria, that result in the disproportionate exclusion of a distinctive group.” Id. at 367-68, 99 S.Ct. 664. The first aspect of the jury selection process that must be justified by Respondent is the excusáis for economic hardship. In Duren, the Supreme Court anticipated that jury selection plans would preserve excuses from jury service based on economic or personal hardship. The Duren court noted, “it is unlikely that reasonable exemptions, such as those based on special hardship, incapacity, or community needs, ‘would pose substantial threats that the remaining pool of jurors would not be representative of the community.’ ” Duren, 439 U.S. at 370, 99 S.Ct. 664 (quoting Taylor, 419 U.S. at 534, 95 S.Ct. 692). We find that the state has a significant interest avoiding undue burdens on individuals by" }, { "docid": "23407712", "title": "", "text": "deemed such numbers statistically and constitutionally insignificant even when dealing with smaller jury pools. See, e.g., Biaggi, 909 F.2d at 678 (failure to add two Blacks and two or three Hispanies to venire of 60 not violative of Constitution). The course of time has not changed this Court’s opinion that such meager numbers do not present an infirmity of constitutional magnitude. We are thus unable to conclude that there is any unfair underrepresentation of Blacks and Hispanies in the New Haven Division of the District of Connecticut jury selection system. D. Systematic Exclusion Even if we assume for the sake of argument that Rioux has established an unfair underrepresentation, he is impaled on the third prong of the Duren test: systematic exclusion of Blacks and Hispanies. He contends that the following four items of evidence illustrate systematic exclusion of minority populations in the New Haven Division of the District of Connecticut: (1) the failure to serve, by U.S. Marshal or otherwise, juror questionnaires that were returned as undeliverable; (2) the failure to maintain a list of the persons whose questionnaires could not be delivered; (3) the failure to adopt the recommendations of Magistrate Judge Margolis, who was selected to oversee the implementation of the jury selection system in the District of Connecticut; and (4) an overuse of disqualification of jurors for inability to speak English. (1) Statistics to Show Systematic Exclusion Without accepting the canard that if you torture the statistics long enough, they’ll say anything you want them to, it remains unclear whether statistics alone can prove systematic exclusion. See United States v. Pion, 25 F.3d 18, 23 (1st Cir.)(statisties alone not enough), cert. denied, — U.S. -, 115 S.Ct. 326, 130 L.Ed.2d 286 (1994). Even if they can, however, they would have to be of an overwhelmingly convincing nature. Cf. Duren, 439 U.S. at 366, 99 S.Ct. at 669 (defendant proved “large discrepancy occurred not just occasionally, but in every weekly venire for a period of nearly a year”). Nevertheless, even if one were to rely exclusively on statistics, Rioux’s statistics do not illustrate systematic exclusion. As discussed" }, { "docid": "15429558", "title": "", "text": "Indianapolis Division. The government did not quarrel with these facts, but instead argued that, even assuming under-representation, Guy still could not demonstrate any systematic exclusion of African-Americans. Thus, the resolution of Guy’s claim turns on the third prong of Duren: whether Guy has demonstrated the systematic exclusion of African-Americans in his case. The district court held that Guy had not satisfied this third prong. (Though the court did not specifically mention the Du-ren test by name, its grounds for rejecting Guy’s challenges to the jury can fairly be characterized as a third-prong failure under Duren.) We agree. As the district court noted, the venire in Guy’s case was randomly selected pursuant to an authorized plan. Guy presented no evidence to suggest that the lack of any African-American jurors on his panel was due to anything other than mere coincidence. Guy’s mere observation that there were no African- Americans on a panel that was drawn from a population containing African-Americans simply is not sufficient to demonstrate any systematic exclusion. Cf. Davis, 867 F.2d at 1014-15 (Applying the Duren test to similar claims, we held that the appellant’s census figures on the racial composition of Cook County were inadequate to establish that the underrepresentation of African-Americans on the appellant’s venire was due to a systematic exclusion of such jurors in the selection process.); Duren, 439 U.S. at 366, 99 S.Ct. at 669 (Because the appellant demonstrated that only 14.5% of the persons on the weekly venires were women while women composed 54% of the adult inhabitants of the relevant community during the same period, the appellant established that the underrepresentation of women on his venire was due to their systematic exclusion in the jury selection process.). Guy offers to this court a rather elaborate argument to overcome the deficiencies of his evidence on the third prong of Duren. Guy maintains that African-Americans are not afforded an equal opportunity to register to vote, and consequently are excluded systematically from the jury pool because voter registration rolls are the starting point for the Southern District’s jury selection process. The basis for this argument rests" }, { "docid": "7589324", "title": "", "text": "the underrepresenta tion was systematic. First, the “undisputed demonstration that a large discrepancy occurred not just occasionally but in every weekly venire for a period of nearly a year manifestly indicates that the cause of the underrepresentation was systematic — that is, inherent in the particular jury-selection process utilized.” Id. at 366, 99 S.Ct. at 669. Just as important, the Court also was able to establish when in the system the exclusion took place: Petitioner Duren’s statistics and other evidence also established when in the selection process the systematic exclusion took place. There was no indication the underrepresentation of women occurred at the first stage of the selection process — the questionnaire canvass of persons randomly selected from the relevant voter registration list. The first sign of a systematic discrepancy is at the next stage — the construction of the jury wheel from which persons are randomly summoned for service. Less than 30% of those summoned were female, demonstrating that a substantially larger number of women answering the questionnaire claimed either ineligibility or exemption from jury service. Moreover, at the summons stage women were not only given another opportunity to claim exemption, but also were presumed to have claimed exemption when they did not respond to the summons. Thus, the percentage of women at the final, venire stage (14.5%) was much lower than the percentage of women who were summoned for service (26.7%). The resulting disproportionate and consistent exclusion of women from the jury wheel and at the venire stage was quite obviously due to the system by which juries were selected. Petitioner demonstrated that the underrepresentation of women in the final pool of prospective jurors was due to the operation of Missouri’s exemption criteria.... Women were therefore systematically underrepresented within the meaning of Duren. Id. at 366-67, 99 S.Ct. at 669 (emphasis in original). Neither factor relied upon by the Court in Duren is present here. First, the alleged claim of underrepresentation in this case is supported only by the results of two samples. In Duren, the underrepresentation was evident in every weekly venire for a period of nearly" } ]

[ { "docid": "7917557", "title": "", "text": "protected activity said: “* * * Socony was motivated in part by Haleblian’s processing the complaint. And for this reason, So-cony’s suspension of Haleblian was unlawful. [Citing cases] Of course, Haleblian would not be engaged in protected activity in filing the complaint if he acted in bad faith. However, the record supports a finding that the union’s complaint was made not out of malice, but in a desire to bring the watch-standing problem to the Coast Guard’s attention.” Socony Mobil Oil Co. v. NLRB, supra, 357 F.2d at 663. In NLRB v. Bretz Fuel Co., 210 F.2d 392, 396 (4 Cir. 1954), the court said: “Our Court and other federal appellate courts have consistently held that concerted activity is protected only where such activity is intimately connected with the employees’ immediate employment.” See also NLRB v. J. I. Case Co., 198 F.2d 919 (8 Cir. 1952); Carter Carburetor Corp. v. NLRB, 140 F.2d 714 (8 Cir. 1944). However, not all activities of employees are protected under § 7. This is particularly true relating to activities which are contrary to the collective bargaining agreement itself. See e. g., NLRB v. Sands Mfg. Co., 306 U.S. 332, 59 S.Ct. 508, 83 L.Ed. 682 (1939); NLRB v. Montgomery Ward & Co., 157 F.2d 486 (8 Cir. 1946); NLRB v. Draper Corp., 145 F.2d 199 (4 Cir. 1944). And, of course, unlawful activities are not sanctioned under the Act. See e. g., NLRB v. Fansteel Metallurgical Corp., 306 U.S. 240, 255, 59 S.Ct. 490, 83 L.Ed. 627 (1939). This leads me to the question as to whether Adams’ activities were “concerted” under the Act. The company urges (1) that Adams acted entirely on his own and not on behalf of any other employee, (2) that Adams did not at any time seek to induce group action to protest his grievance and (3) that Adams did not at any time go through his union to protest the grievance. Therefore, it contends that Adams’ conduct at all times was not “concerted activity” under the terms of § 7. The Board on the other hand urges that" } ]

[ { "docid": "4327349", "title": "", "text": "that even if it did discharge Michaels for protected activity, the remedy should be limited because the company would have fired him in any event based on evidence of unrelated misconduct it discovered after his termination. We consider each of these arguments below. A Section 7 of the NLRA guarantees employees the “right to self-organization, to form, join, or assist labor organizations, ... and to engage in other concerted activities for the' purpose of collective bargaining or other mutual aid or protection.” 29 U.S.C. § 157. Section 8(a)(1) of the Act implements that guarantee by declaring that “[i]t shall be an unfair labor practice for an employer ... to interfere with, restrain, or coerce employees in the exercise of the rights guaranteed in [section 7].” Id. § 158(a)(1); see PHT, Inc. v. NLRB, 920 F.2d 71, 73 (D.C.Cir.1990). Thus, an employer violates section 8(a)(1) if it discharges an employee for engaging in concerted activity for the purpose of mutual aid or protection. See, e.g., Prill v. NLRB, 835 F.2d 1481, 1483 (D.C.Cir.1987). Moreover, the Supreme Court has confirmed that “the ‘mutual aid or protection’ clause protects employees from retaliation by their employers when they seek to improve working conditions through resort to administrative and judicial forums.” Eastex, Inc. v. NLRB, 437 U.S. 556, 565-66 & n. 15, 98 S.Ct. 2505, 57 L.Ed.2d 428 (1978) (citing with approval Walls Mfg. Co., 137 N.L.R.B. 1317 (1962), enforced, 321 F.2d 753 (D.C.Cir.1963), and Socony Mobil Oil Co., 153 N.L.R.B. 1244 (1965), enforced, 357 F.2d 662 (2d Cir.1966)). Mohave does not dispute the ALJ’s conclusion that the filing of a judicial petition — supported by fellow employees and joined by a co-employee — constitutes concerted action under the NLRA. Nor does Mohave dispute that concerted action to ensure greater workplace safety through petitioning for injunctive relief may constitute protected conduct. Instead, it contends that Michaels’ conduct was unprotected here because it was “disloyal,” in that if granted, the injunction would have interfered with the business relationship between Mohave and Guard Force. It is true that an employer may discharge an employee for disloyalty without" }, { "docid": "4327344", "title": "", "text": "police arrest; the store’s own security force had stopped the Guard Force employee, who claimed to have “forgotten” to pay for an item he took from the store. Nady and Longtin concluded that Michaels had exaggerated the story in order to discredit Guard Force. At the hearing before the ALJ, however, Michaels testified that he had merely reported what he had heard — that someone wearing a Mohave uniform had been stopped for shoplifting— and nothing more. Based on the demean- or of the witnesses, the ALJ found Mi-chaels’ testimony substantially more credible than that of Nady and Longtin. He therefore credited Michaels’ testimony and concluded that if there had been any exaggeration, it had been by Mohave’s supervisors rather than Michaels. On May 21, angry about the alleged exaggeration, Nady went to Mohave’s facility “to confront and straighten out Mi-chaels.” Id. at *6 (internal quotation omitted). Unable to find him, Nady instead located Stuart Douglas, another Mohave meter reader whom Nady had often seen with Michaels. Although the parties dispute the details of the encounter, it appears that Nady asked Douglas about Mi-chaels’ whereabouts and that there was a brief physical confrontation between them. The next day, when Michaels returned to work, Douglas told him that he had been physically and verbally assaulted by Nady, and that Nady had been “looking for” Michaels when this occurred. Mi-chaels promptly told his supervisor that he felt threatened, and he asked the company for protection. Quinn told him to “give it a couple of days” and took no further action, although later Longtin did advise Nady that Mohave “reserved to itself any issues of supervision or discipline of its employees.” Id. at *7. Concerned about their physical safety, Michaels and Douglas met with their coworkers and discussed their options. They described Nady’s alleged assault on Douglas and stated that they were considering turning to the courts for protection. Michaels gave un-contradicted testimony that the other employees agreed with and supported such action. See Tr. at 189-90. On May 28, in Bullhead City municipal court, Michaels and Douglas filed petitions for injunctions against" }, { "docid": "4327345", "title": "", "text": "encounter, it appears that Nady asked Douglas about Mi-chaels’ whereabouts and that there was a brief physical confrontation between them. The next day, when Michaels returned to work, Douglas told him that he had been physically and verbally assaulted by Nady, and that Nady had been “looking for” Michaels when this occurred. Mi-chaels promptly told his supervisor that he felt threatened, and he asked the company for protection. Quinn told him to “give it a couple of days” and took no further action, although later Longtin did advise Nady that Mohave “reserved to itself any issues of supervision or discipline of its employees.” Id. at *7. Concerned about their physical safety, Michaels and Douglas met with their coworkers and discussed their options. They described Nady’s alleged assault on Douglas and stated that they were considering turning to the courts for protection. Michaels gave un-contradicted testimony that the other employees agreed with and supported such action. See Tr. at 189-90. On May 28, in Bullhead City municipal court, Michaels and Douglas filed petitions for injunctions against harassment, citing their need for protection from “verbal and mental abuse and possibly physical violence” by Nady and Drabek. App. at 139-43. The petitions requested that Nady and Drabek have no contact with Douglas and Michaels, and that they be enjoined to stay away from the petitioners’ homes and place of employment. On May 29, Nady received copies of the petitions and immediately contacted Long-tin. He told Longtin that, if the injunctions were granted, neither he nor Drabek would be allowed on Mohave property. This, he said, would prevent them from performing their duties as subcontractors. Thereafter, Longtin decided to terminate Michaels. According to Longtin’s testimony, he did so because Michaels had filed the petition, exaggerated the shoplifting incident, spoken rudely to Drabek in the telephone conversation of May 8, and called Guard Force employees “scabs.” Mojave Elec., 1998 WL 777462, at *8. Longtin conceded, however, that when he told Michaels that he was being terminated, he told him “of no other reason besides his having filed the petition.” Id. On July 22, the municipal" }, { "docid": "4327354", "title": "", "text": "is evidenced by the fact that the filing was part of a long-term campaign to discredit Guard Force and sever its contractual relationship with Mohave. Other elements of this asserted campaign were Michaels’ alleged exaggeration of the shoplifting incident, his allegedly rude telephone conversation with Drabek on May 8, his purported practice of calling Guard Force employees “scabs,” and the fact that after the May 21 incident with Nady, Michaels filed a union grievance seeking the removal of Guard Force from Mohave’s property. The ALJ readily disposed of each of these claims, see Mojave Elec., 1998 WL 777462, at *4 n. 6, and we find those dispositions reasonable. The ALJ determined based on witness demeanor that it was Mohave’s supervisors rather than Mi-chaels who had exaggerated the shoplifting incident. Supervisor Quinn concluded that Michaels had behaved properly in the May 8 telephone conversation with Dra-bek. The ALJ credited Michaels’ denial that he had ever called Guard Force employees scabs, finding Longtin’s contrary testimony to be internally “inconsistente ]” and a “makeweight.” Id. at *8 n. 12. Finally, the filing of the union grievance in connection with the same conduct for which Michaels sought a civil injunction is itself a protected activity. See, e.g., Illinois Ruan Transp. Corp. v. NLRB, 404 F.2d 274, 284 (8th Cir.1968); Walls Mfg. Co., 321 F.2d at 753. We conclude that substantial evidence supports the Board’s finding that Michaels did not file his petition out of bad faith or malice. Accordingly, we reject Mohave’s contention that Michaels’ conduct was “disloyal” and therefore unworthy of NLRA protection. B Mohave also contends that the filing of Michaels’ judicial petition was unprotected because it was “contrary to the express terms of the collective bargaining agreement between [Mohave] and Mi-chaels’ union.” Mohave Br. at 20. That agreement, the company argues, not only “permit[ted] [Mohave] to contract with Guard Force, it specifically prohibited Mi-chaels from interfering with that and other aspects of [Mohave’s] operations.” Id. at 20-21. Thus, the company contends, by seeking an injunction that would have impaired Guard Force’s ability to fulfill its contract with Mohave, Michaels breached the" }, { "docid": "4327360", "title": "", "text": "by Guard Force employee Tammy Bauguess that, on a single occasion nine to ten months before his discharge, Michaels paid her five dollars to take part of his meter route. Mohave’s operations manager, Tom Longtin, “testified unequivocally that he would have discharged Michaels for this action” as soon as he discovered it. Mohave Reply Br. at 9. To preclude reinstatement and limit backpay on the basis of after-acquired evidence, the employer has the burden of proving that the evidence reveals misconduct for which it “would have discharged any employee,” not simply for which it could have done so. Marshall Durbin Poultry Co., 310 N.L.R.B. 68, 70 (1993) (emphasis added), aff'd in relevant part, 39 F.3d 1312 (5th Cir.1994); see also John Cuneo, Inc., 298 N.L.R.B. 856, 856-57 (1990). The NLRB affirmed the ALJ’s determination that Mohave had not met that burden. See Mojave Elec., 1998 WL 777462, at *1. Because the Board has “broad discretion” in fashioning remedial orders, ABF Freight Sys., Inc. v. NLRB, 510 U.S. 317, 325, 114 S.Ct. 835, 127 L.Ed.2d 152 (1994), we will uphold its decision as long as there is substantial evidence in the record to support it. There is such substantial evidence here. The ALJ concluded that “even if [he] had found the events to have occurred as testified to by Bauguess,” he could not credit Longtin’s testimony that this kind of misconduct would alone have resulted in Mi-chaels’ discharge. Mojave Elec., 1998 WL 777462, at *14. The “claimed seriousness” of the single alleged five-dollar bribe, the ALJ said, was substantially undercut by “Longtin’s benign attitude” toward Bau-guess, who purportedly had taken the bribe. Id. at *15. As Longtin admitted, he had “made no request or demand that [Bauguess] be disciplined by Guard Force.” Id.; see Tr. at 385 (testimony of Longtin) (agreeing that it was “against the rules for [Bauguess] to accept the money,” but conceding that he had not recommended that she be disciplined). “The fact that Longtin has taken absolutely no action against” her, the ALJ concluded, spoke “volumes” as to whether the five dollar bribe was an offense for" }, { "docid": "4327352", "title": "", "text": "ALJ, however, found to the contrary, and we affirm that finding as supported by substantial evidence. As the ALJ stated, “whether or not one regards Michaels’ fears as totally realistic,” it is not possible to conclude that they were baseless. Mojave Elec., 1998 WL 777462, at *11. Testimony supported the ALJ’s finding that “Nady did behave toward Michaels in an angry fashion, and did seek to find him for some sort of confrontation.” Id. at *10; see Tr. at 80-81; General Counsel Ex. 10. Moreover, the ALJ observed that “Nad/s imposing size and evident state of fitness would strike a disturbing chord in virtually any man who learned as Michaels did that Nady had come onto [Mohave’s] premises seeking a confrontation with him.” Mojave Elec., 1998 WL 777462, at *10. And as the ALJ also noted, “Michaels sought assurances for his safety” from Mohave, and “resorted to the filing of a petition only after such assurances were not given.” Id. The ALJ’s observations are fully supported by Michaels’ testimony, which the ALJ found to be of “superior” credibility— a determination to which we defer. Mi-chaels testified without contradiction that he “felt very threatened” when he heard Nady had come looking for him, that he felt “the physical altercation between [Nady] and Douglas was actually directed towards [him],” and that he and Douglas filed their petitions to protect themselves from further harassment. Tr. at 184-90. Mohave officials conceded that Michaels communicated his safety concerns to the company both before and after the petitions were filed, see id. at 92-93, 337, and that he asked the company to take “some action to protect” him, id. at 85 — a request Mohave initially put off with the suggestion to “give it a couple of days,” Mojave Elec., 1998 WL 777462, at *7; Tr. at 185. Although Mohave later “advised” Nady to leave any disciplining of its employees to the company, Michaels was not required to accept that admonition as providing him with sufficient protection. Mohave contends that the filing of the petitions should not be considered in isolation, and that Michaels’ bad faith" }, { "docid": "4327343", "title": "", "text": "Judge (ALJ) who heard the case found that on the morning of May 8, Michaels called Drabek, the Guard Force supervisor, to complain that a Guard Force employee had insisted that Michaels trade meter-reading routes for the day. Following that conversation, Drabek reported to Mohave that Michaels had been rude to him. Michaels denied the allegation, and his supervisor, Quinn, ended the matter by finding that Michaels “had acted properly.” Mojave Elec., 1998 WL 777462, at *5. Later that same month, Michaels learned from a friend that someone wearing a Mohave uniform had been stopped at a local grocery store for shoplifting. Pursuant to company policy, Michaels reported this to Quinn, who in turn advised Longtin, Mohave’s operations manager, and Jay Nady, the owner of Guard Force. According to Nady and Longtin, the story that reached them was that Michaels had reported that the person wearing the Mohave uniform was a Guard Force employee, who had been handcuffed and driven away by the police. The actual facts were somewhat less dramatic: there had been no police arrest; the store’s own security force had stopped the Guard Force employee, who claimed to have “forgotten” to pay for an item he took from the store. Nady and Longtin concluded that Michaels had exaggerated the story in order to discredit Guard Force. At the hearing before the ALJ, however, Michaels testified that he had merely reported what he had heard — that someone wearing a Mohave uniform had been stopped for shoplifting— and nothing more. Based on the demean- or of the witnesses, the ALJ found Mi-chaels’ testimony substantially more credible than that of Nady and Longtin. He therefore credited Michaels’ testimony and concluded that if there had been any exaggeration, it had been by Mohave’s supervisors rather than Michaels. On May 21, angry about the alleged exaggeration, Nady went to Mohave’s facility “to confront and straighten out Mi-chaels.” Id. at *6 (internal quotation omitted). Unable to find him, Nady instead located Stuart Douglas, another Mohave meter reader whom Nady had often seen with Michaels. Although the parties dispute the details of the" }, { "docid": "4327364", "title": "", "text": "of its conclusion that Michaels was unlawfully discharged in viola tion of section 8(a)(1) for filing the civil injunction petition, the Board found \"no need to rely on the judge’s conclusion that the discharge also violated Section 8(a)(3).\" Mojave Elec., 1998 WL 777462, at *1. Accordingly, that issue is not before us. . In the Statement of Facts section of its brief, Mohave suggests that Michaels was not fired solely for the filing of the petition, but rather due to a continuing \"pattern” of disloyal actions including, inter alia, exaggerating the shoplifting incident, speaking rudely to Dra-bek, and calling Guard Force employees names. See Mohave Br. at 5-6; see also id. at 14. Even if this were true, there is substantial evidence to support the ALJ’s conclusion that Mohave failed to overcome its Wright Line burden of showing it would have fired Michaels absent the filing of the petition. See Transportation Management Corp., 462 U.S. at 401-03, 103 S.Ct. 2469 (holding that where protected activity is at least a \"motivating factor,” employer must show it would have taken same action in its absence). Moreover, as discussed below, there is substantial evidence to support the ALJ’s finding that Mi-chaels did not engage in the purported pattern of disloyal activity. . See, e.g., Prill, 835 F.2d at 1483 (noting that complaint of single employee is deemed concerted action when taken “with the actual participation or on the authority of his coworkers”); International Ladies’ Garment Workers' Union v. NLRB, 299 F.2d 114, 115—16 (D.C.Cir.1962) (finding concerted action where complaint letter written by single employee was \"approved in advance by several other employees”). . See, e.g., NLRB v. Local Union No. 1229, 346 U.S. 464, 471, 74 S.Ct. 172, 98 L.Ed. 195 (1953) (upholding discharge where employees publicly disparaged quality of employer’s product, with no discernible relationship to pending labor dispute); George A. Hormel & Co. v. NLRB, 962 F.2d 1061, 1064 (D.C.Cir.1992) (stating that employee violates duty of loyalty by supporting boycott of employer’s product, unless boycott is non-disparaging and related to ongoing labor dispute). . Accord Leviton Mfg. Co. v. NLRB, 486" }, { "docid": "4327361", "title": "", "text": "(1994), we will uphold its decision as long as there is substantial evidence in the record to support it. There is such substantial evidence here. The ALJ concluded that “even if [he] had found the events to have occurred as testified to by Bauguess,” he could not credit Longtin’s testimony that this kind of misconduct would alone have resulted in Mi-chaels’ discharge. Mojave Elec., 1998 WL 777462, at *14. The “claimed seriousness” of the single alleged five-dollar bribe, the ALJ said, was substantially undercut by “Longtin’s benign attitude” toward Bau-guess, who purportedly had taken the bribe. Id. at *15. As Longtin admitted, he had “made no request or demand that [Bauguess] be disciplined by Guard Force.” Id.; see Tr. at 385 (testimony of Longtin) (agreeing that it was “against the rules for [Bauguess] to accept the money,” but conceding that he had not recommended that she be disciplined). “The fact that Longtin has taken absolutely no action against” her, the ALJ concluded, spoke “volumes” as to whether the five dollar bribe was an offense for which Mi-chaels really would have been fired, Mojave Elec., 1998 WL 777462, at *15, and “belied” Longtin’s testimony that it was, id. at *12. The inference drawn by the ALJ is a reasonable one. See John Cuneo, Inc., 298 N.L.R.B. at 861 n. 10 (noting that treatment of similarly situated employees carries great weight in evaluating whether employer would have terminated employee for act of misconduct); Axelson, Inc., 285 N.L.R.B. 862, 866 (1987) (holding that, to terminate backpay on basis of after-acquired evidence, employer must demonstrate that discovered misconduct “is not conduct of a sort that it has tolerated in the past”). Against it Mohave offers nothing more than Longtiris testimony, which the ALJ was entitled to reject as self-serving. See Import Body Shop, Inc., 262 N.L.R.B. 1188, 1188 (1982) (viewing “with skepticism” rationale for discharge based on post-discharge evidence, since employer “already had manifested its intention to discharge [employee] for unlawful reasons”). Indeed, Mohave does not even attempt to explain why Bauguess escaped discipline for engaging in the same transaction for which the company" }, { "docid": "4327350", "title": "", "text": "Court has confirmed that “the ‘mutual aid or protection’ clause protects employees from retaliation by their employers when they seek to improve working conditions through resort to administrative and judicial forums.” Eastex, Inc. v. NLRB, 437 U.S. 556, 565-66 & n. 15, 98 S.Ct. 2505, 57 L.Ed.2d 428 (1978) (citing with approval Walls Mfg. Co., 137 N.L.R.B. 1317 (1962), enforced, 321 F.2d 753 (D.C.Cir.1963), and Socony Mobil Oil Co., 153 N.L.R.B. 1244 (1965), enforced, 357 F.2d 662 (2d Cir.1966)). Mohave does not dispute the ALJ’s conclusion that the filing of a judicial petition — supported by fellow employees and joined by a co-employee — constitutes concerted action under the NLRA. Nor does Mohave dispute that concerted action to ensure greater workplace safety through petitioning for injunctive relief may constitute protected conduct. Instead, it contends that Michaels’ conduct was unprotected here because it was “disloyal,” in that if granted, the injunction would have interfered with the business relationship between Mohave and Guard Force. It is true that an employer may discharge an employee for disloyalty without committing an unfair labor practice. But the fact that an employee’s actions may cause some harm to the employer does not alone render them disloyal. See NLRB v. Knuth Bros., Inc., 537 F.2d 950, 953 (7th Cir.1976). The activity at issue here involves the filing of a petition for judicial relief, and, as Mohave itself recites, the “rule [is] that filing a ‘civil action by a group of employees is protected activity unless done with malice or in bad faith.’ ” Mohave Reply Br. at 5 (quoting Trinity Trucking & Materials Corp., 221 N.L.R.B. 364, 365 (1975)) (emphasis added). Moreover, that the petition “was later dismissed on the pleadings would not in itself make the activity unprotected or establish bad faith.” Trinity Trucking & Materials Corp., 221 N.L.R.B. at 365 (citing Walls Mfg. Co., 137 N.L.R.B. at 1317). Mohave contends that Michaels’ petition was in fact filed “with malice and in bad faith” because it was intended not to protect employees but rather to disrupt Mohave’s relationship with Guard Force. Mohave Br. at 19. The" }, { "docid": "4327355", "title": "", "text": "12. Finally, the filing of the union grievance in connection with the same conduct for which Michaels sought a civil injunction is itself a protected activity. See, e.g., Illinois Ruan Transp. Corp. v. NLRB, 404 F.2d 274, 284 (8th Cir.1968); Walls Mfg. Co., 321 F.2d at 753. We conclude that substantial evidence supports the Board’s finding that Michaels did not file his petition out of bad faith or malice. Accordingly, we reject Mohave’s contention that Michaels’ conduct was “disloyal” and therefore unworthy of NLRA protection. B Mohave also contends that the filing of Michaels’ judicial petition was unprotected because it was “contrary to the express terms of the collective bargaining agreement between [Mohave] and Mi-chaels’ union.” Mohave Br. at 20. That agreement, the company argues, not only “permit[ted] [Mohave] to contract with Guard Force, it specifically prohibited Mi-chaels from interfering with that and other aspects of [Mohave’s] operations.” Id. at 20-21. Thus, the company contends, by seeking an injunction that would have impaired Guard Force’s ability to fulfill its contract with Mohave, Michaels breached the CBA. Mohave is correct that conduct in breach of a collective bargaining agreement is one of “the normal categories of unprotected concerted activities.” NLRB v. Washington Aluminum Co., 370 U.S. 9, 17, 82 S.Ct. 1099, 8 L.Ed.2d 298 (1962). But its claim that Michaels breached the agreement at issue here is truly breathtaking in its scope. The company does not contend that the filing of the petition breached the agreement; rather, Mohave’s contention is that the breach would occur if the petition were granted. “If granted,” the company argues, an order directing Guard Force’s owner and supervisor to stay away from Michaels’ place of business would limit Mohave’s ability “to enjoy the benefits of [its] contractual relationship” with Guard Force. Mohave Br. at 16. In essence, Mohave’s contention is that if an employee asserts a right under state law to be free of physical harassment, and if a judge determines on the merits that a stay-away order is necessary to vindicate that right, the employee has violated the collective bargaining agreement struck between Mohave and" }, { "docid": "4327353", "title": "", "text": "of “superior” credibility— a determination to which we defer. Mi-chaels testified without contradiction that he “felt very threatened” when he heard Nady had come looking for him, that he felt “the physical altercation between [Nady] and Douglas was actually directed towards [him],” and that he and Douglas filed their petitions to protect themselves from further harassment. Tr. at 184-90. Mohave officials conceded that Michaels communicated his safety concerns to the company both before and after the petitions were filed, see id. at 92-93, 337, and that he asked the company to take “some action to protect” him, id. at 85 — a request Mohave initially put off with the suggestion to “give it a couple of days,” Mojave Elec., 1998 WL 777462, at *7; Tr. at 185. Although Mohave later “advised” Nady to leave any disciplining of its employees to the company, Michaels was not required to accept that admonition as providing him with sufficient protection. Mohave contends that the filing of the petitions should not be considered in isolation, and that Michaels’ bad faith is evidenced by the fact that the filing was part of a long-term campaign to discredit Guard Force and sever its contractual relationship with Mohave. Other elements of this asserted campaign were Michaels’ alleged exaggeration of the shoplifting incident, his allegedly rude telephone conversation with Drabek on May 8, his purported practice of calling Guard Force employees “scabs,” and the fact that after the May 21 incident with Nady, Michaels filed a union grievance seeking the removal of Guard Force from Mohave’s property. The ALJ readily disposed of each of these claims, see Mojave Elec., 1998 WL 777462, at *4 n. 6, and we find those dispositions reasonable. The ALJ determined based on witness demeanor that it was Mohave’s supervisors rather than Mi-chaels who had exaggerated the shoplifting incident. Supervisor Quinn concluded that Michaels had behaved properly in the May 8 telephone conversation with Dra-bek. The ALJ credited Michaels’ denial that he had ever called Guard Force employees scabs, finding Longtin’s contrary testimony to be internally “inconsistente ]” and a “makeweight.” Id. at *8 n." }, { "docid": "4327362", "title": "", "text": "which Mi-chaels really would have been fired, Mojave Elec., 1998 WL 777462, at *15, and “belied” Longtin’s testimony that it was, id. at *12. The inference drawn by the ALJ is a reasonable one. See John Cuneo, Inc., 298 N.L.R.B. at 861 n. 10 (noting that treatment of similarly situated employees carries great weight in evaluating whether employer would have terminated employee for act of misconduct); Axelson, Inc., 285 N.L.R.B. 862, 866 (1987) (holding that, to terminate backpay on basis of after-acquired evidence, employer must demonstrate that discovered misconduct “is not conduct of a sort that it has tolerated in the past”). Against it Mohave offers nothing more than Longtiris testimony, which the ALJ was entitled to reject as self-serving. See Import Body Shop, Inc., 262 N.L.R.B. 1188, 1188 (1982) (viewing “with skepticism” rationale for discharge based on post-discharge evidence, since employer “already had manifested its intention to discharge [employee] for unlawful reasons”). Indeed, Mohave does not even attempt to explain why Bauguess escaped discipline for engaging in the same transaction for which the company claims it would have fired Michaels. Accordingly, we have no warrant for rejecting the Board’s conclusion that Michaels should be awarded full reinstatement and backpay. Ill For the foregoing reasons, Mohave’s petition for review is denied, and the Board’s cross-petition for enforcement is granted. So ordered. . Although the Board employs the spelling \"Mojave,” we use the spelling employed by the petitioner in this court. . Douglas claimed “that he’d been physically and verbally assaulted by Nady, with Nady grabbing him by the shirt and shaking him.” Mojave Elec., 1998 WL 777462, at *6. Nady claimed \"that any contact was merely incidental to being bumped as both were leaving the meter reading room.” Id. . See Wright Line, 251 N.L.R.B. 1083 (1980), enforced, 662 F.2d 899 (1st Cir.1981); see also NLRB v. Transportation Management Corp., 462 U.S. 393, 399-401, 103 S.Ct. 2469, 76 L.Ed.2d 667 (1983) (approving Wright Line test). .The ALJ also concluded that Michaels had been discharged because of anti-union animus in violation of NLRA § 8(a)(3), 29 U.S.C. § 158(a)(3). In light" }, { "docid": "4327347", "title": "", "text": "court denied both Mi-chaels’ and Douglas’ petitions. The ALJ concluded that the filing of the petitions was protected conduct under the NLRA, and rejected Mohave’s contention that the filing was rendered unprotected because it constituted “disloyalty.” Applying the familiar Wright Line test, the ALJ found that a prima facie violation of section 8(a)(1) had been established because Mohave “admittedly fired [Michaels], at least in part, because of his having filed the petition,” id. at *11, and because Mohave did not show that it would have fired Mi-chaels in the absence of that protected conduct, see id. at *9-11. The NLRB affirmed. Thereafter, Mohave petitioned this court for review, and the Board cross-petitioned for enforcement. II As we have noted many times before, our role in reviewing an NLRB decision is limited. See, e.g., Pioneer Hotel, Inc. v. NLRB, 182 F.3d 939, 942 (D.C.Cir.1999); Time Warner Cable v. NLRB, 160 F.3d 1, 3 (D.C.Cir.1998). “We must uphold the judgment of the Board unless, upon reviewing the record as a whole, we conclude that the Board’s findings are not supported by substantial evidence, or that the Board acted arbitrarily or otherwise erred in applying established law to the facts of the case.” International Union of Electronic, Elec., Salaried, Mach. & Furniture Workers v. NLRB, 41 F.3d 1532, 1536 (D.C.Cir.1994) (internal quotations and citation omitted). We are also required to give “substantial deference to the inferences drawn by the NLRB from the facts.” Time Warner Cable, 160 F.3d at 3. Moreover, absent exceptional circumstances, we must accept the agency’s determinations regarding the credibility of witnesses. .See Elastic Stop Nut Div. v. NLRB, 921 F.2d 1275, 1281 (D.C.Cir.1990) (stating that “the Court must uphold Board-approved credibility determinations of an ALJ unless they are ‘hopelessly incredible’ or ‘self-contradictory’ ”). Mohave seeks to overturn the Board’s finding that it committed an unfair labor practice on two principal grounds. First, it contends that Michaels’ conduct in filing the injunction petition was unprotected because it was “disloyal.” Second, it contends that Michaels’ activity was unprotected because it was inconsistent with the collective bargaining agreement. In addition, Mohave argues" }, { "docid": "4327346", "title": "", "text": "harassment, citing their need for protection from “verbal and mental abuse and possibly physical violence” by Nady and Drabek. App. at 139-43. The petitions requested that Nady and Drabek have no contact with Douglas and Michaels, and that they be enjoined to stay away from the petitioners’ homes and place of employment. On May 29, Nady received copies of the petitions and immediately contacted Long-tin. He told Longtin that, if the injunctions were granted, neither he nor Drabek would be allowed on Mohave property. This, he said, would prevent them from performing their duties as subcontractors. Thereafter, Longtin decided to terminate Michaels. According to Longtin’s testimony, he did so because Michaels had filed the petition, exaggerated the shoplifting incident, spoken rudely to Drabek in the telephone conversation of May 8, and called Guard Force employees “scabs.” Mojave Elec., 1998 WL 777462, at *8. Longtin conceded, however, that when he told Michaels that he was being terminated, he told him “of no other reason besides his having filed the petition.” Id. On July 22, the municipal court denied both Mi-chaels’ and Douglas’ petitions. The ALJ concluded that the filing of the petitions was protected conduct under the NLRA, and rejected Mohave’s contention that the filing was rendered unprotected because it constituted “disloyalty.” Applying the familiar Wright Line test, the ALJ found that a prima facie violation of section 8(a)(1) had been established because Mohave “admittedly fired [Michaels], at least in part, because of his having filed the petition,” id. at *11, and because Mohave did not show that it would have fired Mi-chaels in the absence of that protected conduct, see id. at *9-11. The NLRB affirmed. Thereafter, Mohave petitioned this court for review, and the Board cross-petitioned for enforcement. II As we have noted many times before, our role in reviewing an NLRB decision is limited. See, e.g., Pioneer Hotel, Inc. v. NLRB, 182 F.3d 939, 942 (D.C.Cir.1999); Time Warner Cable v. NLRB, 160 F.3d 1, 3 (D.C.Cir.1998). “We must uphold the judgment of the Board unless, upon reviewing the record as a whole, we conclude that the Board’s findings" }, { "docid": "4327351", "title": "", "text": "committing an unfair labor practice. But the fact that an employee’s actions may cause some harm to the employer does not alone render them disloyal. See NLRB v. Knuth Bros., Inc., 537 F.2d 950, 953 (7th Cir.1976). The activity at issue here involves the filing of a petition for judicial relief, and, as Mohave itself recites, the “rule [is] that filing a ‘civil action by a group of employees is protected activity unless done with malice or in bad faith.’ ” Mohave Reply Br. at 5 (quoting Trinity Trucking & Materials Corp., 221 N.L.R.B. 364, 365 (1975)) (emphasis added). Moreover, that the petition “was later dismissed on the pleadings would not in itself make the activity unprotected or establish bad faith.” Trinity Trucking & Materials Corp., 221 N.L.R.B. at 365 (citing Walls Mfg. Co., 137 N.L.R.B. at 1317). Mohave contends that Michaels’ petition was in fact filed “with malice and in bad faith” because it was intended not to protect employees but rather to disrupt Mohave’s relationship with Guard Force. Mohave Br. at 19. The ALJ, however, found to the contrary, and we affirm that finding as supported by substantial evidence. As the ALJ stated, “whether or not one regards Michaels’ fears as totally realistic,” it is not possible to conclude that they were baseless. Mojave Elec., 1998 WL 777462, at *11. Testimony supported the ALJ’s finding that “Nady did behave toward Michaels in an angry fashion, and did seek to find him for some sort of confrontation.” Id. at *10; see Tr. at 80-81; General Counsel Ex. 10. Moreover, the ALJ observed that “Nad/s imposing size and evident state of fitness would strike a disturbing chord in virtually any man who learned as Michaels did that Nady had come onto [Mohave’s] premises seeking a confrontation with him.” Mojave Elec., 1998 WL 777462, at *10. And as the ALJ also noted, “Michaels sought assurances for his safety” from Mohave, and “resorted to the filing of a petition only after such assurances were not given.” Id. The ALJ’s observations are fully supported by Michaels’ testimony, which the ALJ found to be" }, { "docid": "4327341", "title": "", "text": "Opinion for the Court filed by Circuit Judge GARLAND. GARLAND, Circuit Judge: Mohave Electric Cooperative, Inc. petitions for review of a decision and order of the National Labor Relations Board (NLRB), which concluded that the company unlawfully discharged employee Rich ard Michaels for protected concerted activity in violation of section 8(a)(1) of the National Labor Relations Act (NLRA), 29 U.S.C. § 158(a)(1). The NLRB cross-petitions for enforcement of its order. We deny the petition for review and grant the cross-petition for enforcement. I Mohave is an electric utility operating out of Bullhead City, Arizona. It has approximately seventy employees, roughly twenty of whom are represented by the International Brotherhood of Electrical Workers, Local 769, AFL-CIO (“the Union”). The bargaining unit consists of linemen, mechanics, warehousemen, and between eight and twelve meter readers. The latter are responsible not only for reading electric meters, but also for meter installation, meter connection and disconnection, and other related duties. Gene Quinn supervises Mohave’s meter department and reports to Tom Longtin, the operations manager. Consistent with the terms of its collective bargaining agreement (CBA), Mohave uses several subcontractors to supplement its work force. One subcontractor, Guard Force, has provided Mohave with additional meter readers since 1993. Guard Force employees wear uniforms like those of Mohave meter readers, and they work out of the same room on Mohave’s premises. Although they have their own on-site supervisor, David Drabek, he reports to Mohave’s Gene Quinn. See Mojave Elec. Coop., 327 N.L.R.B. No. 7, 1998 WL 777462, at *4 (Oct. 30, 1998); Tr. at 74. Hence, all meter readers — whether employed directly by Mohave or by a subcontractor — come within the scope of Quinn’s supervisory responsibility. Richard Michaels worked as a meter reader for Mohave from August 1991 until his termination on June 3, 1996. He was one of two union stewards at the Mohave facility and served on a number of the Union’s committees. His work history was generally uneventful until May 1996. The parties dispute the details of the events that began that month and that ultimately culminated in Michaels’ discharge. The Administrative Law" }, { "docid": "4327359", "title": "", "text": "Mohave contends that the phrase we have italicized above, “or interference of any kind,” gives the prohibition a wider scope, the canon of ejusdem generis (“of the same kind or class”) counsels against our reading that general phrase to include conduct wholly unlike that specified in the immediately preceding list of prohibited acts. In any event, given the Supreme Court’s admonition that we should not infer waivers of statutory rights unless they are “clear and unmistakable,” we see nothing in this CBA to justify inferring a waiver of the proportions claimed by Mohave. C Having rejected Mohave’s arguments that Michaels’ conduct was unprotected, we turn now to its alternative argument: that evidence acquired after Michaels’ termination should limit his remedy. The NLRB awarded Michaels full reinstatement and backpay from the time of his discharge. See Mojave Elec., 1998 WL 777462, at *1. Mohave disputes that award, contending that one week after it fired Michaels, it came upon evidence that would have resulted in his termination irrespective of the injunction petitions. That evidence was a statement by Guard Force employee Tammy Bauguess that, on a single occasion nine to ten months before his discharge, Michaels paid her five dollars to take part of his meter route. Mohave’s operations manager, Tom Longtin, “testified unequivocally that he would have discharged Michaels for this action” as soon as he discovered it. Mohave Reply Br. at 9. To preclude reinstatement and limit backpay on the basis of after-acquired evidence, the employer has the burden of proving that the evidence reveals misconduct for which it “would have discharged any employee,” not simply for which it could have done so. Marshall Durbin Poultry Co., 310 N.L.R.B. 68, 70 (1993) (emphasis added), aff'd in relevant part, 39 F.3d 1312 (5th Cir.1994); see also John Cuneo, Inc., 298 N.L.R.B. 856, 856-57 (1990). The NLRB affirmed the ALJ’s determination that Mohave had not met that burden. See Mojave Elec., 1998 WL 777462, at *1. Because the Board has “broad discretion” in fashioning remedial orders, ABF Freight Sys., Inc. v. NLRB, 510 U.S. 317, 325, 114 S.Ct. 835, 127 L.Ed.2d 152" }, { "docid": "4327342", "title": "", "text": "collective bargaining agreement (CBA), Mohave uses several subcontractors to supplement its work force. One subcontractor, Guard Force, has provided Mohave with additional meter readers since 1993. Guard Force employees wear uniforms like those of Mohave meter readers, and they work out of the same room on Mohave’s premises. Although they have their own on-site supervisor, David Drabek, he reports to Mohave’s Gene Quinn. See Mojave Elec. Coop., 327 N.L.R.B. No. 7, 1998 WL 777462, at *4 (Oct. 30, 1998); Tr. at 74. Hence, all meter readers — whether employed directly by Mohave or by a subcontractor — come within the scope of Quinn’s supervisory responsibility. Richard Michaels worked as a meter reader for Mohave from August 1991 until his termination on June 3, 1996. He was one of two union stewards at the Mohave facility and served on a number of the Union’s committees. His work history was generally uneventful until May 1996. The parties dispute the details of the events that began that month and that ultimately culminated in Michaels’ discharge. The Administrative Law Judge (ALJ) who heard the case found that on the morning of May 8, Michaels called Drabek, the Guard Force supervisor, to complain that a Guard Force employee had insisted that Michaels trade meter-reading routes for the day. Following that conversation, Drabek reported to Mohave that Michaels had been rude to him. Michaels denied the allegation, and his supervisor, Quinn, ended the matter by finding that Michaels “had acted properly.” Mojave Elec., 1998 WL 777462, at *5. Later that same month, Michaels learned from a friend that someone wearing a Mohave uniform had been stopped at a local grocery store for shoplifting. Pursuant to company policy, Michaels reported this to Quinn, who in turn advised Longtin, Mohave’s operations manager, and Jay Nady, the owner of Guard Force. According to Nady and Longtin, the story that reached them was that Michaels had reported that the person wearing the Mohave uniform was a Guard Force employee, who had been handcuffed and driven away by the police. The actual facts were somewhat less dramatic: there had been no" }, { "docid": "4327363", "title": "", "text": "claims it would have fired Michaels. Accordingly, we have no warrant for rejecting the Board’s conclusion that Michaels should be awarded full reinstatement and backpay. Ill For the foregoing reasons, Mohave’s petition for review is denied, and the Board’s cross-petition for enforcement is granted. So ordered. . Although the Board employs the spelling \"Mojave,” we use the spelling employed by the petitioner in this court. . Douglas claimed “that he’d been physically and verbally assaulted by Nady, with Nady grabbing him by the shirt and shaking him.” Mojave Elec., 1998 WL 777462, at *6. Nady claimed \"that any contact was merely incidental to being bumped as both were leaving the meter reading room.” Id. . See Wright Line, 251 N.L.R.B. 1083 (1980), enforced, 662 F.2d 899 (1st Cir.1981); see also NLRB v. Transportation Management Corp., 462 U.S. 393, 399-401, 103 S.Ct. 2469, 76 L.Ed.2d 667 (1983) (approving Wright Line test). .The ALJ also concluded that Michaels had been discharged because of anti-union animus in violation of NLRA § 8(a)(3), 29 U.S.C. § 158(a)(3). In light of its conclusion that Michaels was unlawfully discharged in viola tion of section 8(a)(1) for filing the civil injunction petition, the Board found \"no need to rely on the judge’s conclusion that the discharge also violated Section 8(a)(3).\" Mojave Elec., 1998 WL 777462, at *1. Accordingly, that issue is not before us. . In the Statement of Facts section of its brief, Mohave suggests that Michaels was not fired solely for the filing of the petition, but rather due to a continuing \"pattern” of disloyal actions including, inter alia, exaggerating the shoplifting incident, speaking rudely to Dra-bek, and calling Guard Force employees names. See Mohave Br. at 5-6; see also id. at 14. Even if this were true, there is substantial evidence to support the ALJ’s conclusion that Mohave failed to overcome its Wright Line burden of showing it would have fired Michaels absent the filing of the petition. See Transportation Management Corp., 462 U.S. at 401-03, 103 S.Ct. 2469 (holding that where protected activity is at least a \"motivating factor,” employer must show it" } ]

[ { "docid": "2221779", "title": "", "text": "an argument that could have been successful on the facts of this case. Martinez fled for several years, and the notion that he lacked a reasonable opportunity to cease his obstructionist behavior and work to secure safer incarceration conditions is a tough pill to swallow. We thus reject his voluntariness challenge to the obstruction of justice adjustment. B. The Reasonableness of Martinez’s Sentence Martinez’s remaining arguments concern the overall reasonableness of his 240-month, below-guidelines sentence. Our review of the reasonableness of a sentence proceeds in two steps. United States v. Brown, 610 F.3d 395, 397 (7th Cir.2010). First, we must ensure that the district court committed no significant procedural errors, such as treating the guidelines as mandatory, failing to calculate the guidelines range, or failing to provide a meaningful assessment of the 18 U.S.C. § 3553(a) factors. Gall v. United States, 552 U.S. 38, 51, 128 S.Ct. 586, 169 L.Ed.2d 445 (2007). Second, so long as the procedures employed were sound, we assess the substantive reasonableness of the sentence in light of the statutory factors laid out in § 3553(a). Id. We review the substantive reasonableness of a sentence imposed for an abuse of discretion, mindful that a below-guidelines sentence enjoys a presumption of reasonableness on appeal when it is challenged by a defendant for being too long. United States v. Shamah, 624 F.3d 449, 460 (7th Cir.2010); United States v. Jackson, 598 F.3d 340, 345 (7th Cir.2010). Martinez first complains, somewhat obliquely, that the district court committed procedural error when it “paid mere lip service to the § 3553(a) factors” and failed to “articulate any reason why Martinez’s factors in mitigation were ignored.” The record belies this claim. The sentencing transcript shows that the district court provided explicit, reasoned explanations for accepting or rejecting nearly all of Martinez’s arguments and imposed a sentence meaningfully linked to the § 3553(a) factors, and that is generally enough. See United States v. Ashqar, 582 F.3d 819, 826-27 (7th Cir.2009); United States v. Tahzib, 513 F.3d 692, 695 (7th Cir.2008). To be sure, the district court must address “all of a defendant’s principal" } ]

[ { "docid": "8170959", "title": "", "text": "the problem at issue in Lawrence. Sutton’s testimony about a daily amount indicates that the sales were relatively evenly distributed, allowing the district court to extrapolate the per-day amount to a larger period of time. Ac cordingly, the court’s drug calculations were supported by reliable evidence. B. Ervin Ervin’s appellate counsel filed an Anders brief requesting permission to withdraw because the appeal presents no non-frivolous issues; Ervin did not respond. See Anders v. California, 386 U.S. 738, 87 S.Ct. 1396, 18 L.Ed.2d 493 (1967). Because Ervin did not challenge his guilty plea in the first appeal, our review is limited to the resentencing. See United States v. Parker, 101 F.3d 527, 528 (7th Cir.1996). Ervin’s counsel identifies two potential issues: whether the guidelines range was correctly calculated and whether the sentence is reasonable. Ervin’s guidelines range was undoubtedly appropriate because he admittedly qualified as a career offender. Ervin’s sentence, which was below the guidelines range, is therefore presumptively reasonable. See United States v. Curb, 626 F.3d 921, 927 (7th Cir.2010). In addition, the district court thoroughly explained its reasoning, citing both the relevant factors under 18 U.S.C. § 3553(a) and the need for proportionality. We therefore agree with Ervin’s counsel that the appeal presents no nonfrivolous issues. For the foregoing reasons, we Affirm Longstreet’s sentence. We also Grant Ervin’s counsel’s motion to withdraw and Dismiss Ervin’s appeal." }, { "docid": "6971315", "title": "", "text": "appointed counsel filed an Anders brief and moved to withdraw after concluding that his appeal presents no nonfrivolous issues. See Anders v. California, 386 U.S. 738, 87 S.Ct. 1396, 18 L.Ed.2d 493 (1967). Aguirre did not initially respond, but we allowed him to file a late response. Counsel first notes that Aguirre did not seek to withdraw his guilty plea in the district court. In his belated response, Aguirre confirms that he does not want to withdraw his plea; counsel therefore properly limited his inquiry to possible sentencing challenges. See United States v. Knox, 287 F.3d 667, 670-71 (7th Cir.2002) (counsel should not explore possible Rule 11 challenges in an Anders brief in the absence of a request by the defendant to withdraw his guilty plea). Counsel notes that in his plea agreement, Aguirre accepted the PSR’s guidelines calculations and reiterated at sentencing that he had no challenge to those calculations; any challenge to the court’s calculation of the advisory range would therefore be frivolous. Finally, counsel notes that although a below-guidelines sentence would have been reasonable in this case, Aguirre’s 235-month sentence — at the low end of the advisory range — is presumptively reasonable and there are no nonfrivolous arguments that might rebut that presumption. Aguirre now claims that he did not make any demands of the victim’s family and was not a leader or organizer of this kidnapping, but that conflicts with the facts he admitted when he entered his guilty plea. We agree with Aguirre’s counsel that there are no nonfrivolous arguments to pursue on appeal. For the foregoing reasons, we Affirm the judgment in Vizcarra’s case (No. 09-1174). In Aguirre’s case (No. 09-2457), we Grant counsel’s motion to withdraw and Dismiss the appeal. . We note that U.S.S.G. § 2J1.1, application note 2, was amended effective November 2011 and now explicitly provides that the enhancement in § 2B 1.1 (b)(9)(C) for violating a court order does not apply to failure to pay child support; this amendment was a response to our decision in United States v. Bell, 598 F.3d 366 (7th Cir.2010). See U.S.S.G. §" }, { "docid": "13263096", "title": "", "text": "to explain to Mr. Maeder the effect of violating his term of supervised release. Fed.R.Crim.P. 11(c)(1). The first error appears harmless because the district court explained in great detail to Mr. Maeder his right to a trial and Mr. Maeder acknowledged that he understood that right. See United States v. Mitchell, 58 F.3d 1221, 1223-24 (7th Cir.1995); United States v. Frazier, 705 F.2d 903, 906-07 (7th Cir.1983). With respect to the second error, it too would have been harmless if the combined terms of imprisonment — 57 months — and supervised release — 36 months — fell below the maximum sentence permitted by statute. See Schuh, 289 F.3d at 974. But the combined terms — 93 months — exceeds the statutory maximum of 60 months, 18 U.S.C. § 371, and so we cannot say, at this point, that the error is harmless. See Schuh, 289 F.3d at 974. Because we have identified a potentially nonfrivolous issue for appeal regarding Mr. Maeder’s plea, we must next ask the threshold question identified in United States v. Knox, 287 F.3d 667, 671-72 (7th Cir.2002): Has Mr. Maeder expressed a desire to withdraw his guilty plea? In Knox, we considered an Anders motion filed by a lawyer who also missed two Rule 11 errors in the defendant’s plea colloquy. Id. at 670. Despite the lawyer’s substand ard assessment of the potential issues for appeal, however, we granted the motion to withdraw and dismissed the appeal because we found nothing in the record suggesting that the defendant wanted to withdraw his guilty plea. Id. at 671. For instance, the defendant filed three responses to his lawyer’s Anders motion in which he expressed dissatisfaction with the length of his sentence and the effectiveness of his counsel, but never his guilty plea (he did claim that his lawyer misled him into pleading guilty to three counts rather than just two, but contradicted that claim elsewhere in the record). Id. In contrast, Mr. Maeder has filed no response and, in fact, has refused to even consult with counsel about his appeal. As a result, we have no way" }, { "docid": "8625662", "title": "", "text": "v. Konczak, 683 F.3d 348, 349 (7th Cir.2012); United States v. Knox, 287 F.3d 667, 670-71 (7th Cir.2002), this omission does not mean that we must deny the Anders motion. If the transcript of the plea colloquy shows that a challenge to the voluntariness of the plea would be frivolous, the motion may be granted. See Konczak, 683 F.3d at 349-50; Schuh, 289 F.3d at 974. A challenge to the voluntariness of a guilty plea necessarily is frivolous if the district court substantially complied with Federal Rule of Criminal Procedure 11 when accepting the plea. Konczak, 683 F.3d at 349-50; Schuh, 289 F.3d at 974. And our review of Mr. Davenport’s plea colloquy would be even more deferential— confined to a search for plain error — because he did not move in the district court to withdraw his guilty plea. See United States v. Vonn, 535 U.S. 55, 62-63, 122 S.Ct. 1043, 152 L.Ed.2d 90 (2002); United States v. Kilcrease, 665 F.3d 924, 927 (7th Cir.2012). An error is not plain unless it is obvious, affected the defendant’s substantial rights and seriously undermined the fairness or integrity of the proceedings. Vonn, 535 U.S. at 62-63, 122 S.Ct. 1043; United States v. Corona-Gonzalez, 628 F.3d 336, 340 (7th Cir.2010); United States v. Jumah, 599 F.3d 799, 811 (7th Cir.2010). Mr. Davenport could not meet the stringent plain-error standard on the record before us. The district court ensured that he understood the charge against him, Fed.R.Civ.P. 11(b)(1), the penalties he faced (from 15 years to life in prison, a fine of up to $250,000, and up to 5 years of supervised release), id. at (H)-(M), and the various trial and appellate rights he was waiving by pleading guilty, id. at (B)-(F). The court’s single omission from the list of waived rights was Davenport’s right to testify if he went to trial, id. at (E), but such an oversight will not constitute plain error unless the error actually renders the defendant’s conviction unjust. United States v. Loutos, 383 F.3d 615, 619 (7th Cir.2004); United States v. Driver, 242 F.3d 767, 771 (7th Cir.2001)." }, { "docid": "12505448", "title": "", "text": "mandatory minimum and more than a year below the government’s most favorable recommendation. Spann filed a notice of appeal, but her appointed counsel has concluded that the appeal is frivolous and seeks permission to withdraw. See Anders v. California, 386 U.S. 738, 87 S.Ct. 1396, 18 L.Ed.2d 493 (1967). Spann has not accepted our invitation to comment on counsel’s facially adequate submission. See Cir. R. 51(b). We limit our review to the potential issues that counsel discusses. See United States v. Schuh, 289 F.3d 968, 973-74 (7th Cir.2002). Spann does not want her guilty plea set aside, so counsel properly forgoes discussing the adequacy of the plea colloquy or the voluntariness of the plea. See United States v. Knox, 287 F.3d 667, 670-72 (7th Cir.2002). Counsel first considers arguing that the district court undervalued Spann’s cooperation and did not shave enough time from the statutory minimum. But valuing substantial assistance given as part of a cooperation agreement under 18 U.S.C. § 3553(e) is a matter within the sentencing court’s discretion, and thus counsel rightly concludes that an appellate claim challenging the reduction as too little would be frivolous because we lack jurisdiction to review the contention. See 18 U.S.C. § 3742(a); United States v. Thomas, 11 F.3d 732, 735 (7th Cir.1993); United States v. Shaffer, 993 F.2d 625, 628-29 (7th Cir. 1993); United States v. Dean, 908 F.2d 215, 217-18 (7th Cir.1990). Although these cases predate United States v. Booker, 543 U.S. 220, 125 S.Ct. 738, 160 L.Ed.2d 621 (2005), we have explained in discussing sentence reductions under Federal Rule of Criminal Procedure 35(b) that Booker did not alter our limited jurisdiction under 18 U.S.C. § 3742(a), which is also the source of our jurisdiction here. See United States v. McGee, 508 F.3d 442, 444-45 (7th Cir.2007) (concluding that challenging extent of sentence reduction under Rule 35(b) would be frivolous); see also United States v. Chapman, 532 F.3d 625, 628 (7th Cir.2008); United States v. Parker, 543 F.3d 790, 792 (6th Cir.2008); United States v. Haskins, 479 F.3d 955, 957 (8th Cir.2007); United States v. McKnight, 448 F.3d 237, 238" }, { "docid": "13263094", "title": "", "text": "PER CURIAM. Ryan Maeder pleaded guilty to conspiring to rob a bank in violation of 18 U.S.C. §§ 371, 2113(a). He was sentenced to 57 months’ imprisonment, three years’ supervised release, $23,477 in restitution, and a $100 fine. Mr. Maeder’s counsel filed a notice of appeal, but we permitted him to withdraw and appointed substitute counsel. His new lawyer now moves to withdraw in accordance with Anders v. California, 386 U.S. 738, 87 S.Ct. 1396, 18 L.Ed.2d 493 (1967), because he cannot discern a non-frivolous issue for appeal. Because Mr. Maeder declined our invitation to file a response, see Circuit Rule 51(b), and counsel’s Anders brief is facially adequate, we limit our review of the record to the potential issues identified in the brief. See United States, v. Schuh, 289 F.3d 968, 973-74 (7th Cir.2002). For the reasons set forth below, we direct counsel to either amend his brief or withdraw his motion. The facts presented during Mr. Mae-der’s plea colloquy, which he admitted were true, established the following. Mr. Maeder met with two other men, Lyle Tyson and Corey Rozowski, on August 9, 2001, to plan to rob the Bank of Drum-mond in Barnes, Wisconsin. The following day, Tyson and Rozowski robbed the bank using BB guns Mr. Maeder had given them, although Mr. Maeder was not at the bank during the robbery. Following the robbery, Tyson and Rozowski fled the bank to a cabin owned by Rozowski’s relatives. Mr. Maeder met Tyson and Rozow-ski at the cabin and gave Rozowski a ride home. In his Anders brief, counsel affirmatively represents that the district court committed no errors during its Rule 11 plea colloquy and that Mr. Maeder’s plea was “knowing and voluntary and nothing [in] the record indicates otherwise.” Thus he concludes that any challenge by Mr. Mae-der to his guilty plea on that ground would be frivolous. Our own review of the colloquy has identified two obvious errors. First, the district court failed to specifically tell Mr. Maeder that he was waiving his right to a trial by pleading guilty. Fed.R.Crim.P. 11(c)(4). Second, the district court failed" }, { "docid": "22351805", "title": "", "text": "discussed a challenge to the plea with Konczak. In United States v. Knox, 287 F.3d 667 (7th Cir. 2002), we held that counsel “should not present (or even explore in an Anders submission) a Rule 11 argument unless they know after consulting their clients, and providing advice about the risks, that the defendant really wants to withdraw the guilty plea.” Id. at 671 (emphasis added). Some of our nonprecedential orders might be read to indicate that the burden rests on the client to alert counsel about his desire to withdraw the plea, but that is not what Knox said (and those orders are expressly nonprecedential in any event). See, e.g., United States v. Potts, 456 Fed.Appx. 602 (7th Cir.2012); United States v. Arguijo-Cervantes, 461 Fed.Appx. 513, 2012 WL 475928 (7th Cir. Feb. 15, 2012); United States v. Nunez-Garcia, 455 Fed. Appx. 698 (7th Cir.2012). Knox instructs counsel both to consult with the client and to provide advice about the risks and benefits of any proposed course of action. Only if, after counsel has taken that step, the defendant confirms that he is not interested in withdrawing the plea, may counsel refrain from exploring possible arguments related to Rule 11. As we noted, we cannot tell whether that process occurred in Konczak’s case. Despite this omission, however, there is no need for us to reject the Anders submission and require counsel to undertake the necessary consultation. The information contained in counsel’s brief and Konczak’s response, coupled with our own review of the record, convince us that a challenge to the plea would be frivolous. Counsel has not identified any deficiency in the plea colloquy, and the transcript shows that the district court substantially complied with the requirements of Rule 11 and ensured that the plea was voluntary. See Fed.R.CrimP. 11; United States v. Bowlin, 534 F.3d 654, 656-57 (7th Cir.2008); United States v. Blalock, 321 F.3d 686, 688 (7th Cir.2003). Counsel next considers whether Konczak could challenge his prison sentence but properly concludes that such a challenge would be frivolous. As counsel notes, we presume that a within-guidelines sentence is reasonable," }, { "docid": "6971314", "title": "", "text": "three mitigating factors noted above. We disagree. It’s true that Vizearra did not plan the kidnapping, but his role can hardly be characterized as minor. He forcibly abducted the victim, drove her across state lines, and stood watch during her two days of captivity. Nothing about his participation suggests that he specially qualifies for leniency. The second two factors are related and rely largely on inferences that might be drawn from Vizcarra’s limited criminal history. But the judge adjusted the guidelines range to account for Vizcarra’s insignificant criminal record, dropping him from criminal-history category II to criminal-history category I. The court thus gave some weight to Vizcarra’s argument that his involvement in the kidnapping was aberrational and that a shorter prison term would suffice as a deterrent. In the end, the judge was primarily concerned about the severely aggravated nature of the crime — and justifiably so. The 168-month sentence — at the low end of the advisory range — is presumed reasonable, and Vizearra has not overcome the presumption. B. Rogelio Aguirre’s Appeal Aguirre’s appointed counsel filed an Anders brief and moved to withdraw after concluding that his appeal presents no nonfrivolous issues. See Anders v. California, 386 U.S. 738, 87 S.Ct. 1396, 18 L.Ed.2d 493 (1967). Aguirre did not initially respond, but we allowed him to file a late response. Counsel first notes that Aguirre did not seek to withdraw his guilty plea in the district court. In his belated response, Aguirre confirms that he does not want to withdraw his plea; counsel therefore properly limited his inquiry to possible sentencing challenges. See United States v. Knox, 287 F.3d 667, 670-71 (7th Cir.2002) (counsel should not explore possible Rule 11 challenges in an Anders brief in the absence of a request by the defendant to withdraw his guilty plea). Counsel notes that in his plea agreement, Aguirre accepted the PSR’s guidelines calculations and reiterated at sentencing that he had no challenge to those calculations; any challenge to the court’s calculation of the advisory range would therefore be frivolous. Finally, counsel notes that although a below-guidelines sentence would have" }, { "docid": "22351804", "title": "", "text": "WOOD, Circuit Judge. Campus police officers at Lakeland Community College in Mattoon, Illinois, observed Chad Konczak using publicly available computer terminals to download sexually explicit photos of young girls. Konczak was arrested and pleaded guilty to accessing an Internet website for the purpose of viewing child pornography on that site, 18 U.S.C. § 2252A(a)(5)(b). The district court calculated an advisory guidelines imprisonment range of 41 to 51 months and sentenced Konczak to 45 months. Konczak has now filed a notice of appeal, but his appointed lawyer seeks to withdraw on the ground that all possible arguments are frivolous. See Anders v. California, 386 U.S. 738, 87 S.Ct. 1396, 18 L.Ed.2d 493 (1967). Konczak opposes counsel’s motion. See Cir. R. 51(b). We confine our review to the potential issues identified in counsel’s facially adequate brief and Konczak’s response. See United States v. Schuh, 289 F.3d 968, 973-74 (7th Cir.2002). Counsel first considers whether Konczak could challenge the adequacy of the plea colloquy or the voluntariness of his guilty plea. It is unclear, however, whether counsel has discussed a challenge to the plea with Konczak. In United States v. Knox, 287 F.3d 667 (7th Cir. 2002), we held that counsel “should not present (or even explore in an Anders submission) a Rule 11 argument unless they know after consulting their clients, and providing advice about the risks, that the defendant really wants to withdraw the guilty plea.” Id. at 671 (emphasis added). Some of our nonprecedential orders might be read to indicate that the burden rests on the client to alert counsel about his desire to withdraw the plea, but that is not what Knox said (and those orders are expressly nonprecedential in any event). See, e.g., United States v. Potts, 456 Fed.Appx. 602 (7th Cir.2012); United States v. Arguijo-Cervantes, 461 Fed.Appx. 513, 2012 WL 475928 (7th Cir. Feb. 15, 2012); United States v. Nunez-Garcia, 455 Fed. Appx. 698 (7th Cir.2012). Knox instructs counsel both to consult with the client and to provide advice about the risks and benefits of any proposed course of action. Only if, after counsel has taken that" }, { "docid": "23630581", "title": "", "text": "See Anders v. California, 386 U.S. 738, 87 S.Ct. 1396, 18 L.Ed.2d 493 (1967). Curry did not respond to counsel’s facially adequate brief. See Cir. R. 51(b). We limit our review to the potential issues counsel discusses. United States v. Schuh, 289 F.3d 968, 973-74 (7th Cir.2002). Counsel first considers whether Curry has any non-frivolous arguments to challenge his conviction. Since Curry does not seek to challenge his guilty plea on appeal, counsel properly declines to address any plea-related issues in his Anders brief. See United States v. Knox, 287 F.3d 667, 670-71 (7th Cir.2002). Counsel does consider, however, whether Curry has any non-frivolous arguments challenging his sentence. He properly concludes that Curry has none. First, Curry’s within-guideline, 210-month sentence did not constitute a violation of law where it did not exceed the statutory maximum sentence of life, 21 U.S.C. § 841(b)(1)(A); United States v. Franz, 886 F.2d 973, 977 (7th Cir.1989), and where nothing in the record indicates that the district court violated Curry’s equal protection, due process, or other constitutional rights, see, e.g., United States v. Moore, 543 F.3d 891, 895-96 (7th Cir.2008) (discussing a “class of one” equal protection claim). See 18 U.S.C. 3742(a)(1) (permitting defendants to appeal a final sen tence that “was imposed in violation of law”)- Next, the district court committed no procedural errors when applying the sentencing guidelines to determine Curry’s sentence: It properly calculated the guidelines range, treated the guidelines as discretionary, considered the factors in § 3553(a), selected a sentence based on appropriate facts, and adequately explained the sentence it imposed. See Call, 552 U.S. at 51, 128 S.Ct. 586. Finally, Curry’s within-guide line sentence is not substantively unreasonable. See United States v. Rivera, 463 F.3d 598, 602 (7th Cir.2006) (“A sentence, such as this, that falls within a properly calculated Guidelines’ range is entitled to a rebuttable presumption of reasonableness.... [I]t will be a rare Guidelines sentence that is unreasonable.” (internal quotation marks and citations omitted)). We grant counsel’s request. III. Conclusion For the foregoing reasons, we Affirm the district court’s judgment and Grant Curry’s counsel’s request to withdraw and" }, { "docid": "5214971", "title": "", "text": "Knox, 287 F.3d 667, 670-71 (7th Cir.2002). Although the defendant’s Rule 51(b) response is ambiguous, it appears that he wishes to challenge his guilty plea, though any challenge would be frivolous. During the plea colloquy the district court substantially complied with Federal Rule of Criminal Procedure 11. See Konczak, 683 F.3d at 349; United States v. Blalock, 321 F.3d 686, 688-89 (7th Cir.2003); United States v. Akinsola, 105 F.3d 331, 334 (7th Cir.1997). The judge explained the nature of the charge, the statutory penalties, the role of the sentencing guidelines and the judge’s discretion in applying them, the process for receiving credit for acceptance of responsibility and cooperation with the government, and the trial and appellate rights he was waiving by entering the plea. And the judge ensured that the plea was made voluntarily with neither the government nor counsel forcing him to plead guilty or assuring a specific sentence. Thus, the transcript of the plea colloquy demonstrates that Wam-pler knowingly and voluntarily pleaded guilty, and that means that his waiver is enforceable. Wampler asserts in his Rule 51(b) response that he would argue on appeal that he received ineffective assistance of counsel during plea negotiations (though he does not say how counsel purportedly was deficient). His appeal waiver does contain an exception for ineffective assistance of counsel, but only if it relates directly to the waiver. And even if Wampler limits his argument, his claim is better suited for a collateral proceeding. See United States v. Jones, 696 F.3d 695, 702 (7th Cir.2012); United States v. Harris, 394 F.3d 543, 557-58 (7th Cir.2005). III. Zitt’s conviction is Affirmed. The motion to withdraw filed by counsel for Wam-pler is Granted, and Wampler’s appeal is Dismissed. Wampler’s pro se motion for substitute counsel is Denied." }, { "docid": "82595", "title": "", "text": "challenges the appropriateness of revocation nor asserts substantial and complex grounds in mitigation. See Gagnon v. Scarpelli, 411 U.S. 778, 790-91, 93 S.Ct. 1756, 36 L.Ed.2d 656 (1973); United States v. Boultinghouse, 784 F.3d 1163, 1171-72 (7th Cir.2015); United States v. Eskridge, 445 F.3d 930, 932-33 (7th Cir.2006). Thus the Anders safeguards do not govern our review of counsel’s motion to withdraw. See Pennsylvania v. Finley, 481 U.S. 551, 554-55, 107 S.Ct. 1990, 95 L.Ed.2d 539 (1987); Eskridge, 445 F.3d at 933. We may affirm “if we determine that the appeal, though not frivolous, is also not meritorious.” Eskridge, 445 F.3d at 933. We invited Wheeler to comment on counsel’s motion, but he has not responded. See Cir. R. 51(b). Counsel has submitted a brief that explains the nature of the ease and addresses the potential issues that an appeal of this kind might be expected to involve. The analysis in the brief appears to be thorough, so we focus our review on the subjects that counsel discusses. See United States v. Bey, 748 F.3d 774, 776 (7th Cir.2014); United States v. Wagner, 103 F.3d 551, 553 (7th Cir.1996). Counsel first notes that Wheeler does not want to challenge the revocation of his supervision, and thus the lawyer properly refrains from discussing whether Wheeler’s admissions to the charged violations were knowing and voluntary. See United States v. Wheaton, 610 F.3d 389, 390 (7th Cir.2010); United States v. Knox, 287 F.3d 667, 670-72 (7th Cir.2002). Counsel next discusses ■ whether Wheeler could raise an appellate claim about the calculation of his reimpris-onment range. Wheeler did not object to the district court’s application of the Sentencing Guideline Chapter 7 policy statements, so our review would be limited to plain error. See United States v. Pitre, 504 F.3d 657, 661, 664 (7th Cir.2007); United States v. Harvey, 232 F.3d 585, 587 (7th Cir.2000). At Wheeler’s revocation hearing the district court said that his reimprisonment range would be 21 to 27 months. (Wheeler’s criminal history category is VI, and the court found that his possession of marijuana constituted a Grade B violation because he" }, { "docid": "10678151", "title": "", "text": "POSNER, Circuit Judge. The defendant’s supervised release was revoked because he admitted having violated its terms by helping to distribute marijuana; by way of sanction the judge ordered him to serve 36 months in prison. The defendant appealed. His lawyer has filed an Anders brief in which he reviews the grounds for an appeal and concludes convincingly that all would be frivolous. See Anders v. California, 386 U.S. 738, 87 S.Ct. 1396, 18 L.Ed.2d 493 (1967). Only one point in the brief warrants discussion. The defendant admitted as we said that he had violated the terms of his supervised release, and, as the Anders brief explains, there can be no doubt that the admissions were knowing and voluntary, so that any challenge to them would be certain to fail. But we add that the defendant could not prevail even if the admissions were not shown to be knowing and voluntary. For he does not ask to withdraw the admissions. He objects to the 36-month prison term that the judge imposed but not to the revocation of supervised release on the basis of the admissions he made. In United States v. Knox, 287 F.3d 667, 670-72 (7th Cir.2002), we held that the voluntariness of a guilty plea is not a potential appealable issue that must be discussed in an Anders brief, unless the defendant wants to withdraw the plea after being informed by his lawyer of the risks of doing so. He cannot retain the plea while challenging admissions on which it was based. He cannot in other words have his cake (a plea that may have resulted in a lighter sentence than if he had refused to plead guilty and been convicted after a trial) and eat it (withdraw admissions, made in the plea hearing, that might undermine challenges he may now wish to make to his conviction or sentence). We have not found any other reported case that addresses the issue. The logic of Knox extends to a case (also one of first impression) in which the defendant does not challenge the revocation of his supervised release. We hold" }, { "docid": "5214970", "title": "", "text": "Wampler filed a notice of appeal, but his appointed lawyer has concluded that the appeal is frivolous and moves to withdraw under Anders v. California, 386 U.S. 738, 87 S.Ct. 1396, 18 L.Ed.2d 493 (1967). Wampler has responded to counsel’s motion, see Cir. R. 51(b), and we limit our review to counsel’s facially adequate brief and Wampler’s response, see United States v. Schuh, 289 F.3d 968, 973-74 (7th Cir.2002). Wampler’s appointed counsel fails to note in his Anders submission that Wam-pler waived his right to appeal. Unless there is reason to question the validity of Wampler’s appeal waiver, that waiver is dispositive here. An appeal waiver stands or falls with the underlying guilty plea, United States v. Kilcrease, 665 F.3d 924, 929 (7th Cir.2012); United States v. Henry, 702 F.3d 377, 380 (7th Cir.2012); United States v. Sakellarion, 649 F.3d 634, 638-39 (7th Cir.2011), but counsel does not say if he asked Wampler whether he wants to challenge his guilty plea, see United States v. Konczak, 683 F.3d 348, 349 (7th Cir.2012); United States v. Knox, 287 F.3d 667, 670-71 (7th Cir.2002). Although the defendant’s Rule 51(b) response is ambiguous, it appears that he wishes to challenge his guilty plea, though any challenge would be frivolous. During the plea colloquy the district court substantially complied with Federal Rule of Criminal Procedure 11. See Konczak, 683 F.3d at 349; United States v. Blalock, 321 F.3d 686, 688-89 (7th Cir.2003); United States v. Akinsola, 105 F.3d 331, 334 (7th Cir.1997). The judge explained the nature of the charge, the statutory penalties, the role of the sentencing guidelines and the judge’s discretion in applying them, the process for receiving credit for acceptance of responsibility and cooperation with the government, and the trial and appellate rights he was waiving by entering the plea. And the judge ensured that the plea was made voluntarily with neither the government nor counsel forcing him to plead guilty or assuring a specific sentence. Thus, the transcript of the plea colloquy demonstrates that Wam-pler knowingly and voluntarily pleaded guilty, and that means that his waiver is enforceable. Wampler asserts" }, { "docid": "23630580", "title": "", "text": "The district court weighed Vallar’s testimony against the government agents’ and concluded that Vallar lacked credibility. We find no clear error in this conclusion. See United States v. Ofcky, 237 F.3d 904, 910 (7th Cir.2001) (affirming the application of an obstruction enhancement “where the trial judge weighed the testimony of the defendant against that of others and determined that the defendant’s testimony lacked credibility.”); see also United States v. Pedigo, 12 F.3d 618, 628-29 (7th Cir.1993). We affirm the district court’s application of the obstruction enhancement. G. Anders Brief in the Case of Tyrail Curry Curry pled guilty to Count One, the conspiracy charge, on September 6, 2006. He admitted to participating in Iniguez’s drug enterprise by assisting in the receipt and distribution of cocaine in Kentucky. The district court sentenced Curry to 210 months of imprisonment, the lowest within-guidelines sentence, and five years of supervised release. Curry’s counsel, a Federal Public Defender in the Central District of Illinois, concludes that Curry’s case is without merit and submits an Anders brief seeking permission to withdraw. See Anders v. California, 386 U.S. 738, 87 S.Ct. 1396, 18 L.Ed.2d 493 (1967). Curry did not respond to counsel’s facially adequate brief. See Cir. R. 51(b). We limit our review to the potential issues counsel discusses. United States v. Schuh, 289 F.3d 968, 973-74 (7th Cir.2002). Counsel first considers whether Curry has any non-frivolous arguments to challenge his conviction. Since Curry does not seek to challenge his guilty plea on appeal, counsel properly declines to address any plea-related issues in his Anders brief. See United States v. Knox, 287 F.3d 667, 670-71 (7th Cir.2002). Counsel does consider, however, whether Curry has any non-frivolous arguments challenging his sentence. He properly concludes that Curry has none. First, Curry’s within-guideline, 210-month sentence did not constitute a violation of law where it did not exceed the statutory maximum sentence of life, 21 U.S.C. § 841(b)(1)(A); United States v. Franz, 886 F.2d 973, 977 (7th Cir.1989), and where nothing in the record indicates that the district court violated Curry’s equal protection, due process, or other constitutional rights, see, e.g.," }, { "docid": "5214969", "title": "", "text": "375 (7th Cir.2002); United States v. Emerson, 501 F.3d 804, 813 (7th Cir.2007); United States v. Thornton, 197 F.3d 241, 250 (7th Cir.1999). One technique that might prevent such testimony from coming out in open court would be to have the court directly inform or remind the witness about the prohibited testimony before the witness testifies, outside the presence of the jury. The court could also advise the witness that she may request a sidebar or recess if the witness believes that honestly answering a question would require her to give the prohibited testimony. Then if such a question arises, the witness can request a sidebar or recess, the issue can be fully discussed outside the jury’s presence, and a preemptive solution, such as a reformulated question, might be worked out. II. Wampler pleaded guilty to conspiring to distribute heroin. But after reviewing a presentence report incorrectly labeling him as a career offender, he moved to withdraw his guilty plea. The district court denied this motion and imposed a below-guidelines prison sentence of 151 months. Wampler filed a notice of appeal, but his appointed lawyer has concluded that the appeal is frivolous and moves to withdraw under Anders v. California, 386 U.S. 738, 87 S.Ct. 1396, 18 L.Ed.2d 493 (1967). Wampler has responded to counsel’s motion, see Cir. R. 51(b), and we limit our review to counsel’s facially adequate brief and Wampler’s response, see United States v. Schuh, 289 F.3d 968, 973-74 (7th Cir.2002). Wampler’s appointed counsel fails to note in his Anders submission that Wam-pler waived his right to appeal. Unless there is reason to question the validity of Wampler’s appeal waiver, that waiver is dispositive here. An appeal waiver stands or falls with the underlying guilty plea, United States v. Kilcrease, 665 F.3d 924, 929 (7th Cir.2012); United States v. Henry, 702 F.3d 377, 380 (7th Cir.2012); United States v. Sakellarion, 649 F.3d 634, 638-39 (7th Cir.2011), but counsel does not say if he asked Wampler whether he wants to challenge his guilty plea, see United States v. Konczak, 683 F.3d 348, 349 (7th Cir.2012); United States v." }, { "docid": "8625661", "title": "", "text": "PER CURIAM. Hubert Davenport decided to show off his gun to his friends at a bar one night. A bar employee observed him and called the police, and Mr. Davenport, a felon on probation, was arrested and charged with violating 18 U.S.C. § 922(g)(1). He pleaded guilty and was sentenced as an armed career criminal to 192 months’ imprisonment. See id. § 924(e). Mr. Davenport then filed a notice of appeal, but his appointed lawyer contends that the appeal is frivolous and seeks to withdraw under Anders v. California, 386 U.S. 738, 87 S.Ct. 1396, 18 L.Ed.2d 493 (1967). Mr. Davenport has not responded to counsel’s submission. See Cir. R. 51(b). We confine our review to the potential issues identified in counsel’s facially adequate brief. See United States v. Schuh, 289 F.3d 968, 973-74 (7th Cir.2002). Counsel begins by addressing whether Mr. Davenport could challenge his conviction. Although she neglects to say whether she complied with this court’s requirement that she first ask him whether he wants his guilty plea set aside, see United States v. Konczak, 683 F.3d 348, 349 (7th Cir.2012); United States v. Knox, 287 F.3d 667, 670-71 (7th Cir.2002), this omission does not mean that we must deny the Anders motion. If the transcript of the plea colloquy shows that a challenge to the voluntariness of the plea would be frivolous, the motion may be granted. See Konczak, 683 F.3d at 349-50; Schuh, 289 F.3d at 974. A challenge to the voluntariness of a guilty plea necessarily is frivolous if the district court substantially complied with Federal Rule of Criminal Procedure 11 when accepting the plea. Konczak, 683 F.3d at 349-50; Schuh, 289 F.3d at 974. And our review of Mr. Davenport’s plea colloquy would be even more deferential— confined to a search for plain error — because he did not move in the district court to withdraw his guilty plea. See United States v. Vonn, 535 U.S. 55, 62-63, 122 S.Ct. 1043, 152 L.Ed.2d 90 (2002); United States v. Kilcrease, 665 F.3d 924, 927 (7th Cir.2012). An error is not plain unless it is obvious," }, { "docid": "23565159", "title": "", "text": "out that his client had been a victim of child molestation”; what is missing is evidence “to indicate that such a history makes a person less able to avoid becoming a child molester, let alone becoming a producer of child pornography.” Beier, 490 F.3d at 574. As it was the district court had nothing to evaluate. Ditto with substance abuse, another of Chapman’s purported factors in mitigation. Counsel argues that the district court should have addressed drug use as a mitigating factor because of “its contribution” to Chapman’s “legal and personal difficulties.” Yet the only evidence about drug use comes from the presentence report: Chapman smoked marijuana daily and had used cocaine and methamphetamine in the past but given up both long before his arrest in this case. There is not a whit of evidence in the presentence report (or anywhere else in the record) to substantiate counsel’s assertion that Chap man’s drug use prompted him to commit sexual abuse or produce child pornography. Chapman further argues that the district court failed to address the specter of an unwarranted sentencing disparity. See 18 U.S.C. § 3553(a)(6). But that factor is already taken into account whenever, as here, the sentencing court imposes a prison term within the guidelines range. Gall, 128 S.Ct. at 599; United States v. Reyes-Medina, 683 F.3d 837, 840-41 (7th Cir.2012); United States v. Pape, 601 F.3d 743, 750 (7th Cir.2010); United States v. Bartlett, 567 F.3d 901, 908 (7th Cir.2009). Challenging a within-range sentence as disparate is a “pointless” exercise; Chapman does not dispute that his guidelines range was properly calculated, and so § 3553(a)(6) cannot be a basis to deem the sentence unreasonable. See United States v. Shrake, 515 F.3d 743, 748 (7th Cir.2008). In other cases we have upheld lengthy sentences for producers of child pornography even where, in contrast with Chapman’s case, victims were not molested in the process. See, e.g., United States v. Klug, 670 F.3d 797, 801 (7th Cir.2012); United States v. Noel, 581 F.3d 490, 500-01 (7th Cir.2009). The remaining factors in mitigation listed in Chapman’s brief — his “sincere desire" }, { "docid": "22351806", "title": "", "text": "step, the defendant confirms that he is not interested in withdrawing the plea, may counsel refrain from exploring possible arguments related to Rule 11. As we noted, we cannot tell whether that process occurred in Konczak’s case. Despite this omission, however, there is no need for us to reject the Anders submission and require counsel to undertake the necessary consultation. The information contained in counsel’s brief and Konczak’s response, coupled with our own review of the record, convince us that a challenge to the plea would be frivolous. Counsel has not identified any deficiency in the plea colloquy, and the transcript shows that the district court substantially complied with the requirements of Rule 11 and ensured that the plea was voluntary. See Fed.R.CrimP. 11; United States v. Bowlin, 534 F.3d 654, 656-57 (7th Cir.2008); United States v. Blalock, 321 F.3d 686, 688 (7th Cir.2003). Counsel next considers whether Konczak could challenge his prison sentence but properly concludes that such a challenge would be frivolous. As counsel notes, we presume that a within-guidelines sentence is reasonable, see Rita v. United States, 551 U.S. 338, 347, 127 S.Ct. 2456, 168 L.Ed.2d 203 (2007); United States v. Pape, 601 F.3d 743, 746 (7th Cir.2010), and counsel has not been able to identify any reason to disregard that presumption. The district court properly applied the sentencing factors in 18 U.S.C. § 3553(a), in particular noting as a mitigating factor that Konczak had not downloaded images of children engaged in sexual activity with other persons, or images that were sadistic. But the court concluded that a sentence within the guidelines range was appropriate to provide just punishment and protect the public from further crimes. In his Rule 51(b) response Konczak asserts that the district court failed to acknowledge that much of what he viewed on the Internet was not illegal. During his allocution Konczak explained that he had begun by looking at modeling websites featuring children who were clothed, and only during the year before his arrest did he view and download child pornography. Yet the judge said nothing at sentencing suggesting that he did" }, { "docid": "12505447", "title": "", "text": "PER CURIAM. While on probation for a state drug conviction, Mashica Spann met Carlos Hoffman in court-mandated group therapy and joined his heroin-distribution ring. She was indicted in federal court for her role in the operation and pleaded guilty to conspiracy to distribute heroin, see 21 U.S.C. §§ 846, 841(a)(1), a crime that presumptively mandated a minimum prison term of five years because the conspiracy involved 100 or more grams, id. § 841(b)(1)(B). After rejecting Spann’s argument that she was a minimal or minor participant in the crime, see U.S.S.G. § 3B1.2, the district court calculated her guidelines imprisonment range as 57 to 71 months without the mandatory minimum, which made the applicable range 60 to 71 months, see U.S.S.G. § 5Gl.l(c)(2); United States v. Gonzalez, 534 F.3d 613, 615 (7th Cir.2008). But the government moved for a sentence below the mandatory minimum, citing Spann’s substantial assistance in the investigation of Hoffman and others. See 18 U.S.C. § 3553(e). The court granted the motion and sentenced Spann to 24 months, less than half of the mandatory minimum and more than a year below the government’s most favorable recommendation. Spann filed a notice of appeal, but her appointed counsel has concluded that the appeal is frivolous and seeks permission to withdraw. See Anders v. California, 386 U.S. 738, 87 S.Ct. 1396, 18 L.Ed.2d 493 (1967). Spann has not accepted our invitation to comment on counsel’s facially adequate submission. See Cir. R. 51(b). We limit our review to the potential issues that counsel discusses. See United States v. Schuh, 289 F.3d 968, 973-74 (7th Cir.2002). Spann does not want her guilty plea set aside, so counsel properly forgoes discussing the adequacy of the plea colloquy or the voluntariness of the plea. See United States v. Knox, 287 F.3d 667, 670-72 (7th Cir.2002). Counsel first considers arguing that the district court undervalued Spann’s cooperation and did not shave enough time from the statutory minimum. But valuing substantial assistance given as part of a cooperation agreement under 18 U.S.C. § 3553(e) is a matter within the sentencing court’s discretion, and thus counsel rightly concludes" } ]

[ { "docid": "4458169", "title": "", "text": "rights, and in response to Buhler International’s resistance to inclusion in the arbitration, it alleged against Buhler International substantially the same claims that it had raised against both Buhler parties in its arbitration complaint. The arbitration hearing was held in November 1996 and lasted 17 days. At its conclusion, the panel decided: “Claimant is awarded no damages from Respondents on any of its claims.” Appellant’s Add. at 26. The caption of the award notice included, both Buhler parties. The Buhler parties moved for summary judgment in both federal actions, on grounds of res judicata and collateral estoppel. They also sought confirmation of the panel’s decision in a state court, pursuant to 9 U.S.C. § 9 (1994) and Minn.Stat. Ann. § 572.18 (West 1988). U.S. West removed the confirmation action to federal court and sought to vacate or modify the award, as applied to Buhler International only, pursuant to' 9 U.S.C. §§ 10 and 11 (1994). The District Court confirmed the award as to both Buhler parties. In the assignee action, it granted summary judgment in favor of Buhler International, on grounds of res judicata. In the lender action, it granted summary judgment in favor of both Buhler parties, on the ground that there were no material facts in dispute. II. , U.S. West challenges the District Court’s application of res judicata to its assignee action against Buhler International. It argues that Buhler International was not a party and, therefore, that the arbitration award was not a final decision on the merits of its claims against Buhler International. We affirm. We assess the preclusive effect of the arbitration award on U.S. West’s assign-ee action under Minnesota law. See Mandich v. Watters, 970 F.2d 462, 465 (8th Cir.1992). Under Minnesota law, “ ‘[a] judgment on the merits constitutes an absolute bar to a second suit for the same cause of action, and is conclusive between parties and priv-ies_’ ” Dorso Trailer Sales, Inc. v. American Body & Trailer, 482 N.W.2d 771, 774 (Minn.1992) (quoting Mattsen v. Packman, 358 N.W.2d 48, 49 (Minn.1984) (citations omitted)). The doctrine “should not be rigidly applied; rather," } ]

[ { "docid": "12664560", "title": "", "text": "Indian title to such lands.... (c) The Executive order of February 6,1850, was intended to terminate the temporary rights of occupancy of the ceded lands granted by the treaties named in subparagraph[ ] (a) ... above. Id. B. Collateral estoppel bars a party from relitigating an issue that was “actually litigated and necessary to the outcome” of a prior adjudication. Parklane Hosiery Co. v. Shore, 439 U.S. 322, 326, n. 5, 99 S.Ct. 645, 649, n. 5, 58 L.Ed.2d 552 (1979). To apply the principle of collateral estoppel to a factual issue the party relying on the previous judgment must show that 1) the issue in the present action is identical to one in the prior action, 2) the estopped party was a party or in privity with a party to the prior adjudication, 3) the prior action resulted in a final adjudication on the merits, and 4) the party sought to be estopped was given a full and fair opportunity to be heard on the issue in the prior action. Wellons, Inc. v. T.E. Ibberson Co., 869 F.2d 1166, 1169 (8th Cir.1989). The entire record of the earlier proceeding should be considered in determining whether an issue was actually litigated and necessary to the decision. In re Miera, 926 F.2d 741, 743 (8th Cir.1991). C. The Landowners argue that the Mole Lake litigation precludes the Band’s claims in this action. They assert that the Band was in privity with the Mole Lake plaintiffs and that there is a privity relationship among all Bands who signed the 1837 Treaty. The Band responds that it was not a party to the Mole Lake proceedings and that it could not have had a full and fair opportunity to litigate any issue in that proceedings. “A person is in ‘functional privity with a party and is thus collaterally estopped where he has participated in the prior fair and adequate litigation of the issue sought to be relitigated.” Oglala Sioux Tribe v. Homestake Mining Co., 722 F.2d 1407, 1414, n. 7 (8th Cir.1983). “Privity does not exist merely because parties happen to be interested" }, { "docid": "1193862", "title": "", "text": "to the party opposing the summary judgment motion.” In re Huffman, 171 B.R. 649, 652 (Bankr.W.D.Mo.1994). The Court denies Brandenberger’s motion for summary judgment. The settlement agreement does not collaterally estop Chin-nery from litigating the issue of fraud in the dischargeability proceeding for three reasons: 1) the issue of fraud was not actually litigated in the prior district court action; 2) Chinnery was not represented by counsel in Brandenberger’s district court fraud action, therefore, Chinnery did not have a full and fair opportunity to litigate the issue of fraud; and 3) because issues of nondischargeability under 11 U.S.C. § 523(a)(2), (a)(4), (a)(6), and (a)(15) are the exclusive province of the bankruptcy court, in this case the Court is not bound by collateral estoppel even if the doctrine technically applies. 1. The issue of fraud was not actually litigated in the prior district court action. In Wellons, Inc. v. T.E. Ibberson Co., 869 F.2d 1166, 1168 (8th Cir.1989), the Eighth Circuit Court of Appeals opined: Collateral estoppel is appropriate when: (1) the issue sought to be precluded is identical to the issue previously decided; (2) the prior action resulted in a final adjudication on the merits; (3) the party sought to be estopped was either a party or in privity with a party to the prior action; and (4) the party sought to be estopped was given a full and fair opportunity to be heard on the issue in the prior action. See also In re Miera, 926 F.2d 741, 743 (8th Cir.1991) (Collateral estoppel applies when the issue sought to be precluded was the same as that involved in the prior action; the issue was actually litigated in the prior action; the issue was determined by a valid and final judgment; and the determination was essential to the prior judgment.); Lovell v. Mixon, 719 F.2d 1373, 1376 (8th Cir.1983); In re Mason, 175 B.R. 299, 302 (Bankr.W.D.Mo.1994). Collateral estoppel principles do apply in discharge exception proceedings brought under 11 U.S.C. § 523(a). Grogan v. Garner, 498 U.S. 279, 284 n. 11, 111 S.Ct. 654, 658 n. 11, 112 L.Ed.2d 755" }, { "docid": "5617562", "title": "", "text": "because the defendant in the habeas action was different from the defendants in the present action. For a prior lawsuit to bar a claim, res judicata requires that both suits involve the same parties or those in privity with the same parties. Costner v. URS Consultants, Inc., 153 F.3d 667, 673 (8th Cir.1998). This element cannot be established because there was no privity between habeas defendant Dormiré and the present defendants. In the habeas action, Irving sued Dormiré in his official capacity. The defendants, however, were sued in their personal capacity. “[Ljitigation involving officials in their official capacity does not preclude relitigation in their personal capacity.” Headley v. Bacon, 828 F.2d 1272, 1279 (8th Cir.1987); see also Howell Hydrocarbons, Inc. v. Adams, 897 F.2d 183, 188 (5th Cir.1990) (“Res judicata does not apply when the parties appear in one action in a representative capacity and in a subsequent action in an individual capacity.”); Conner v. Reinhard, 847 F.2d 384, 395 (7th Cir.1988) (holding that a pri- or suit against a municipality does not bar a subsequent suit against officials in their individual capacity because official capacity and personal capacity suits involve different legal theories and defenses). Because res judicata would not protect Dormiré from being sued in his individual capacity, it does not protect other prison employees from being sued in their individual capacities. B. Collateral Estoppel We conclude that collateral estoppel bars Irving’s suit against the defendants. Collateral estoppel is appropriate when: (1) the issue sought to be precluded is identical to the issue previously decided; (2) the prior action resulted in a final adjudication on the merits; (3) the party sought to be estopped was either a party or in privity with a party to the prior action; and (4) the party sought to be estopped was given a full and fair opportunity to be heard on the issue in the prior action. Ripplin Shoals Land Co. v. U.S. Army Corps of Eng’rs, 440 F.3d 1038, 1044 (8th Cir.2006) (citing Wellons, Inc. v. T.E. Ibberson Co., 869 F.2d 1166, 1168 (8th Cir.1989)). The preclusion principle embodied in the" }, { "docid": "6945492", "title": "", "text": "of contract claim against BDA and sought declaratory and injunctive relief. Against the Nagin defendants he alleged breach of fiduciary duty, negligence, and interference with contract. Manion also initiated a parallel arbitration proceeding with the American Arbitration Association for determination of the issue of whether BDA had valid cause to terminate him. The arbitration proceedings were stayed while Manion brought motions in district court, seeking injunctive relief against BDA for reinstatement of the salary and benefits that it had discontinued on termination and declaratory relief regarding the interpretation of the term “anniversary date” in the Agreement. BDA moved in turn to dismiss this action and to compel arbitration, and the Nagin defendants moved for dismissal or for a stay pending arbitration between Manion and BDA. The law firm of Litchford and Christopher moved to dismiss the claims against it for lack of personal jurisdiction. The court applied federal law to examine whether Manion’s claims fell within the scope of the arbitration agreement and concluded that the arbitration clause covered disputes about interpretation of the terms of the Agreement. The court granted BDA’s motion to compel arbitration but stayed this action rather than dismissing it. It denied Manion’s requests for declaratory and injunctive relief, granted the motion of the Nagin defendants to stay proceedings pending completion of arbitration between Manion and BDA, and dismissed the law firm of Litchford and Christopher for lack of personal jurisdiction. Manion attempts to appeal all aspects of the district court’s order except its dismissal of Litchford and Christopher. He contends that the district court erred in denying his contractual right to interim relief in aid of arbitration, in denying his motion for declaratory relief (which is now described as a motion for partial summary judgment), and in staying Manion’s claims against the Nagin defendants. BDA and the Nagin defendants contend that the entire appeal should be dismissed for lack of appellate jurisdiction, but ask for affir-mance if jurisdiction exists. We start with Manion’s appeal from the denial of his motion for injunctive relief because interlocutory appellate jurisdiction exists under 28 U.S.C. § 1292(a)(1). See Morgensterrn" }, { "docid": "1987232", "title": "", "text": "existence of a valid and enforceable contract, he would be entitled to damages for its breach. The arbitrator, however, was “firmly persuaded that [appellant] was discharged for refusing to work”. He held that the discharge was permitted under the WGA contract. We believe that the district court was bound by this finding of fact. It was this finding that entitled appellees to summary judgment. The district court held, under United Paperworkers Int’l Union v. Misco, Inc., 484 U.S. 29 (1987), that it was bound by the arbitrator’s finding. The court cited Misco for the proposition that a district court may not reject findings of fact made by an arbitrator “simply because it disagrees with them”. Id., 484 U.S. at 38. We believe that Misco is distinguishable from the instant case, however, since Misco involved an action to vacate an arbitrator’s award, the action having been commenced by the party that lost the arbitration. The instant case does not involve a challenge to the arbitrator’s decision; rather, it is a separate action which admittedly involves many facts in common with the issue submitted to arbitration. Nevertheless, we agree with appellees that the doctrine of collateral estoppel requires us to accept the arbitrator’s finding concerning the reason for appellant’s discharge. Findings of an arbitrator will bind a court under the doctrine of collateral estoppel when “(1) the issue is identical to one in the prior adjudication; (2) there was a final judgment on the merits; (3) the estopped party was a party ... to the prior adjudication; and (4) the estopped party was given a full and fair opportunity to be heard on the adjudicated issue”. City of Bismarck v. Toltz, King, Duvall, Anderson and Assocs., Inc., 855 F.2d 580, 582 (8th Cir.1988). These requirements clearly were met in the instant case. First, the issue of the cause of appellant’s discharge, of course, was the subject of the arbitration of the wrongful discharge claim. Second, “an arbitration award may constitute a final judgment for the purposes of collateral estop-pel”. Wellons, Inc. v. T.E. Ibberson Co., 869 F.2d 1166 (8th Cir.1989); City of" }, { "docid": "4543358", "title": "", "text": "of the United States' for purposes of Section 3 of the FAA, it would seem to follow that they are 'United States Court[s]' for purposes of Section 10 of the FAA as well.”) (citation omitted). . See, e.g., In re Rosendahl, 307 B.R. 199, 209 (Bankr.D.Or.2004) (stating that \"an unconfirmed arbitration award can be regarded as a final determination for issue preclusion purposes on subject matters of fact and law in appropriate circumstances” and applying collateral estoppel to a non-dischargeability claim under § 523(a)(6) based on an unconfirmed arbitration award); Wilbert Life Ins. Co. v. Beckemeyer (In re Beckemeyer), 222 B.R. 318, 321 (Bankr.W.D.Tenn.1998) (finding that confirmation of an arbitration is not required in order to give preclusive effect, provided the award is final under applicable law); Val-U Const. Co. of South Dakota v. Rosebud Sioux Tribe, 146 F.3d 573, 581 (8th Cir.1998) (\" '[t]he fact that the award in the present case was not confirmed in a court ... does not vitiate the finality of the award.' ”) (quoting Wellons, Inc. v. T.E. Ibberson Co., 869 F.2d 1166, 1169 (8th Cir.1989)); Jacobson v. Fireman's Fund Ins. Co., 111 F.3d 261, 267-68 (2nd Cir.1997) (holding that \"res judicata and collateral estoppel apply to issues resolved by arbitration where there has been a final decision on the merits, notwithstanding a lack of confirmation of the award.”) (citation and internal quotation marks omitted). . Scottsdale Mem’l Health Sys., Inc. v. Clark, 157 Ariz. 461, 466, 759 P.2d 607, 612 (1988) (collateral estoppel only applies to parties and persons in privity with parties). . See Rex, Inc. v. Manufactured Housing Committee, 119 N.M. 500, 504, 892 P.2d 947, 951 (1995) (the required collateral estoppel elements are \" '(1) the party to be estopped was a party [or privy] to the prior proceeding, (2) the cause of action in the case presently before the court is different from the cause of action in the prior adjudication, (3) the issue was actually litigated in the prior adjudication, and (4) the issue was necessarily determined in the prior litigation.' ”)(quoting Shovelin v. Central New Mexico Electric" }, { "docid": "23529428", "title": "", "text": "prevent application of the Anti-Injunction Act’s relitigation exception. See Chick Kam Choo, 486 U.S. at 140, 108 S.Ct. 1684 (requiring principles of both collateral estoppel and res judicata to be satisfied in applying relitigation exception to Anti-Injunction Act). We examine four factors to determine if collateral estoppel applies: Collateral estoppel is appropriate when: (1) the issue sought to be precluded is identical to the issue previously decided; (2) the prior action resulted in a final adjudication on the merits; (3) the party sought to be estopped was either a party or in privity with a party to the prior action; and (4) the party sought to be estopped was given a full and fair opportunity to be heard on the issue in the prior action. Wellons, Inc. v. T.E. Ibberson Co., 869 F.2d 1166, 1168 (8th Cir.1989). Our prior discussion establishes that the second and third criteria have been met in this case. -The fourth criterion has been satisfied as well, because the original Canady I plaintiffs were afforded a full and fair opportunity to be heard on the specific issue of whether they had standing to proceed in a class action against multiple, unrelated insurance companies in the absence of an alleged conspiracy and without alleging direct injuries. Only the first factor is in dispute on this appeal. Appellants assert that the issues of Ca-nady I are not identical to the issues precluded by the injunction of Canady II because: (1) the Saunders claims were asserted under Missouri law, which has more liberal joinder rules than federal law and allows joinder of multiple defendants even in the absence of concerted action, and (2) the facts are not identical in that the cases covered different time periods and proposed using different methodology to determine class status. Specifically, appellants assert that the district court’s discovery limitation orders prevented appellants from pursuing a more narrowly-focused class definition based on census tract information rather than zip codes. At the outset, we note that these arguments rely upon differences in procedural rules. See Fed.R.Civ.P. 20 (classifying joinder as a federal procedural rule), 26(c) (authorizing" }, { "docid": "21877063", "title": "", "text": "by the Corps’ Rule 60(b) motion in Arkansas Nature Alliance are not identical to those issues in this case. At the time of the Rule 60(b) motion, the Corps had not determined the RSLC span bridge permit issue, and no administrative record had been compiled. RSLC argues that the Corps was asking the Arkansas Nature Alliance court to give an advisory opinion about a hypothetical future action. RSLC states that the Corps cannot abdicate its substantive decision-making duty by asking a court for advice. In that same vein, RSLC posits that district courts cannot advise federal agencies, they can only review final agency actions. RSLC also claims that it was not allowed a full and fair opportunity to be heard on the issues presented by this case; no such review was possible at the time because there was no final agency action. The Corps responds by claiming that collateral estoppel prevents re-litigation of issues actually litigated in a prior lawsuit. The Corps states that even though RSLC was not a named party in the Arkansas Nature Alliance litigation, its interests were represented by the Corps, and RSLC was granted intervenor status. The arguments being made now by RSLC are the same that were made in the Corps’ Rule 60(b) motion, i.e., that the plans have substantially changed and an individual permit, including an EIS, should not be required. The requirement of an EIS before the Corps can authorize RSLC to provide access to the island has been litigated and decided. We apply the doctrine of collateral estoppel when: (1) the issue sought to be precluded is identical to the issue previously decided; (2) the prior action resulted in a final adjudication on the merits; (3) the party sought to be estopped was either a party or in privity with a party to the prior action; and (4) the party sought to be estopped was given a full and fair opportunity to be heard on the issue in the prior action. Wellons, Inc. v. T.E. Ibberson Co., 869 F.2d 1166, 1168 (8th Cir.1989) (citing Arkla Exploration Co. v. Texas Oil &" }, { "docid": "5617563", "title": "", "text": "subsequent suit against officials in their individual capacity because official capacity and personal capacity suits involve different legal theories and defenses). Because res judicata would not protect Dormiré from being sued in his individual capacity, it does not protect other prison employees from being sued in their individual capacities. B. Collateral Estoppel We conclude that collateral estoppel bars Irving’s suit against the defendants. Collateral estoppel is appropriate when: (1) the issue sought to be precluded is identical to the issue previously decided; (2) the prior action resulted in a final adjudication on the merits; (3) the party sought to be estopped was either a party or in privity with a party to the prior action; and (4) the party sought to be estopped was given a full and fair opportunity to be heard on the issue in the prior action. Ripplin Shoals Land Co. v. U.S. Army Corps of Eng’rs, 440 F.3d 1038, 1044 (8th Cir.2006) (citing Wellons, Inc. v. T.E. Ibberson Co., 869 F.2d 1166, 1168 (8th Cir.1989)). The preclusion principle embodied in the doctrine of collateral estoppel is based upon the need to conserve judicial resources and prevent inconsistent decisions. See Simmons v. O’Brien, 77 F.3d 1093, 1095 (8th Cir.1996) (“This preclusion principle is rooted in concerns of judicial economy.”); Robbins v. Clarke, 946 F.2d 1331, 1334 (8th Cir.1991) (noting that issue preclusion is appropriate where the claim is “simply the same claim repackaged”). Irving argues that the issue was not previously decided and that he was not given a full and fair opportunity to be heard. 1. Previously Decided For collateral estoppel to preclude an issue, the issue must be identical to the issue previously decided. The party seeking collateral estoppel has the burden “to demonstrate that the issue whose relitigation he seeks to foreclose was actually decided in the first proceeding.” Dowling v. United States, 493 U.S. 342, 350, 110 S.Ct. 668, 107 L.Ed.2d 708 (1990). “[W]e must examine the record of the prior proceeding, including the pleadings and evidence, keeping in mind that the party asserting the preclusion bears the burden of showing “with clarity" }, { "docid": "16328847", "title": "", "text": "the burning hull test results were correct. It also sought contribution or indemnification for the arbitration award against it. Shortly after this suit was filed, but before the Minnesota court had confirmed the arbitration award, NSI and Wellons settled their dispute. Wellons agreed to pay NSI the entire amount of the award. The settlement provided for a mutual release of all claims and for dismissal of the confirmation suit in Minnesota. Ibberson then sought summary judgment against Wellons in this suit, alleging that the doctrine of collateral estoppel barred Wellons’ suit as the issue of Ibber-son’s liability for the boilers’ malfunctioning had been rejected by the arbitration panel. It also alleged that Wellons’ claims for contribution or indemnity were barred under North Dakota law. After considering these arguments, a magistrate recommended that the motion for summary judgment as to the application of collateral estoppel be denied because the finality of the arbitration award was extinguished by the settlement. The district court refused to adopt the magistrate’s recommendation as to the application of collateral estoppel in this case because it found that the settlement agreement had adopted the arbitration award, making it “final” for collateral estoppel purposes. Thus, it granted the motion for summary judgment in favor of Ibberson. DISCUSSION Wellons argues on appeal that the district court erred in giving collateral estop-pel effect to the arbitration proceeding between Wellons and NSI because no final judgment occurred in that action and because the issues of law and fact involved were different than those presented in this case. Collateral estoppel is appropriate when: (1) the issue sought to be precluded is identical to the issue previously decided; (2) the prior action resulted in a final adjudication on the merits; (3) the party sought to be estopped was either a party or in privity with a party to the prior action; and (4) the party sought to be estopped was given a full and fair opportunity to be heard on the issue in the prior action. Arkla Exploration Co. v. Texas Oil & Gas Corp., 734 F.2d 347, 356 (8th Cir.1984), cert. denied," }, { "docid": "16328848", "title": "", "text": "this case because it found that the settlement agreement had adopted the arbitration award, making it “final” for collateral estoppel purposes. Thus, it granted the motion for summary judgment in favor of Ibberson. DISCUSSION Wellons argues on appeal that the district court erred in giving collateral estop-pel effect to the arbitration proceeding between Wellons and NSI because no final judgment occurred in that action and because the issues of law and fact involved were different than those presented in this case. Collateral estoppel is appropriate when: (1) the issue sought to be precluded is identical to the issue previously decided; (2) the prior action resulted in a final adjudication on the merits; (3) the party sought to be estopped was either a party or in privity with a party to the prior action; and (4) the party sought to be estopped was given a full and fair opportunity to be heard on the issue in the prior action. Arkla Exploration Co. v. Texas Oil & Gas Corp., 734 F.2d 347, 356 (8th Cir.1984), cert. denied, 469 U.S. 1158, 105 S.Ct. 905, 83 L.Ed.2d 920 (1985). The present case focuses on the first two requirements, as Wellons was a party to the arbitration proceeding and does not allege that it did not receive a fair hearing before the arbitrators. We agree with the district court that an arbitration award may constitute a final judgment for purposes of collateral estoppel. See City of Bismarck v. Toltz, King, Duvall, et al., 855 F.2d 580, 582-88, (8th Cir.1988); French v. Jinright & Ryan, P.C., 735 F.2d 433, 436 (11th Cir.1984); Jeffers v. Convoy Co., 636 F.Supp. 1337, 1339 (D.Minn.1986) (collateral estoppel may be applied to an arbitration decision); United Food, Etc. v. G. Bartusch Packing Co., 546 F.Supp. 852, 855 (D.Minn.1982) (arbitration decision counts as a prior adjudication when defendant seeks to use prior decision to bar plaintiff’s claim). In City of Bismarck, supra, the city brought a suit for damages against a sewer project contractor and an engineering firm for the negligent design and construction of a sewage system. As required by their" }, { "docid": "21877064", "title": "", "text": "Nature Alliance litigation, its interests were represented by the Corps, and RSLC was granted intervenor status. The arguments being made now by RSLC are the same that were made in the Corps’ Rule 60(b) motion, i.e., that the plans have substantially changed and an individual permit, including an EIS, should not be required. The requirement of an EIS before the Corps can authorize RSLC to provide access to the island has been litigated and decided. We apply the doctrine of collateral estoppel when: (1) the issue sought to be precluded is identical to the issue previously decided; (2) the prior action resulted in a final adjudication on the merits; (3) the party sought to be estopped was either a party or in privity with a party to the prior action; and (4) the party sought to be estopped was given a full and fair opportunity to be heard on the issue in the prior action. Wellons, Inc. v. T.E. Ibberson Co., 869 F.2d 1166, 1168 (8th Cir.1989) (citing Arkla Exploration Co. v. Texas Oil & Gas Corp., 734 F.2d 347, 356 (8th Cir.1984), cert. denied, 469 U.S. 1158, 105 S.Ct. 905, 83 L.Ed.2d 920 (1985)). In assessing this issue de novo, we address the four-element analysis seriatim. First, the issue sought to be precluded is not identical to the issue previously decided. The previous issue concerned RSLC’s LOP to improve the existing low-water bridge. The current issue of RSLC’s new span bridge application submitted to the Corps was not before the district court in the Arkansas Nature Alliance case. Second, as stated above, the prior action did not result in a final adjudication on the merits of the instant action. The prior action resulted in a final adjudication on the merits of RSLC’s LOP to improve the already existing low-water bridge but not as to the construction of a new span bridge. Concerning the third factor, there is no dispute that RSLC was a party in the Arkansas Nature Alliance case because of its intervention. Lastly, RSLC was not given a full and fair opportunity to be heard on the" }, { "docid": "11709907", "title": "", "text": "seeking to recover the unpaid salaries provided in the 1985 Contract on the ground that Watters breached his duty as agent by negotiating an illegal and unauthorized side agreement. Watters, a resident of Canada, removed. Mandich then filed an amended complaint which pleaded a violation of the National Labor Relations Act. However, Mandich has argued no issue of federal law on appeal, and both parties have treated this as a diversity case in which Minnesota law governs. The district court granted Watters’s motion for summary judgment, concluding that the arbitrator’s determination that the 1985 Contract never came into effect is binding on Mandich and precludes his claim for salaries provided in that contract. On appeal, Mandich concedes that his claim against Watters depends upon the enforceability of the 1985 Contract and contends that the district court erred in applying collateral estoppel to resolve this issue against him. II. Federal courts must “give the same preclusive effect to state court judgments that those judgments would be given in the courts of the State from which the judgments emerged.” Kremer v. Chemical Constr. Corp., 456 U.S. 461, 466, 102 S.Ct. 1883, 1889, 72 L.Ed.2d 262 (1982). In Minnesota, collateral estoppel precludes a party from relitigating a legal or factual issue that was actually litigated in a prior proceeding and was essential to the judgment rendered. See Hauser v. Mealey, 263 N.W.2d 803, 806 (Minn.1978). The party invoking collateral estoppel must show: “(1) the issue was identical to one in a prior adjudication; (2) there was a final judgment on the merits; (3) the estopped party was a party or in privity with a party to the prior adjudication; and (4) the estopped party was given a full and fair opportunity to be heard on the adjudicated issue.” Kaiser v. Northern States Power Co., 353 N.W.2d 899, 902 (Minn.1984). It is now settled in Minnesota that an arbitration award is a prior adjudication for collateral estoppel purposes. See Aufderhar v. Data Dispatch, Inc., 452 N.W.2d 648, 651 (Minn.1990). However, no reported Minnesota case has discussed how to apply to arbitration awards the complex" }, { "docid": "6945491", "title": "", "text": "which provided that Man-ion would serve as executive director of BDA for a period of not less than twenty years, included an arbitration clause in the event of any dispute between the parties. The Agreement also included a provision permitting either party to request interim judicial relief: The power conferred by this paragraph is without prejudice to the right of a party under applicable law to request interim relief directly from any court, tribunal, or other governmental authority of competent jurisdiction, and to do so without prior authorization of the arbitrator(s). Such a request for interim relief neither shall be deemed incompatible with, nor a waiver of, the requirement of arbitration of disputes. Another provision indicated that a party would be “entitled to injunctive relief in case of any breach.” In February 1999, the membership of BDA voted to terminate Manion’s employment for gross mismanagement. A year later, Manion filed this lawsuit against BDA, Nagin, and various law firms with which Nagin was or had been affiliated (the Nagin defendants). Manion’s complaint alleged a breach of contract claim against BDA and sought declaratory and injunctive relief. Against the Nagin defendants he alleged breach of fiduciary duty, negligence, and interference with contract. Manion also initiated a parallel arbitration proceeding with the American Arbitration Association for determination of the issue of whether BDA had valid cause to terminate him. The arbitration proceedings were stayed while Manion brought motions in district court, seeking injunctive relief against BDA for reinstatement of the salary and benefits that it had discontinued on termination and declaratory relief regarding the interpretation of the term “anniversary date” in the Agreement. BDA moved in turn to dismiss this action and to compel arbitration, and the Nagin defendants moved for dismissal or for a stay pending arbitration between Manion and BDA. The law firm of Litchford and Christopher moved to dismiss the claims against it for lack of personal jurisdiction. The court applied federal law to examine whether Manion’s claims fell within the scope of the arbitration agreement and concluded that the arbitration clause covered disputes about interpretation of the terms" }, { "docid": "6945494", "title": "", "text": "v. Wilson, 29 F.3d 1291, 1294-95 (8th Cir.1994) (“if an interlocutory order expressly grants or denies a request for injunctive relief ... the order is immediately appealable as of right”). A district court has broad discretion when ruling on requests for preliminary injunctions, and we will reverse only for clearly erroneous factual determinations, an error of law, or abuse of discretion. See Entergy, Arkansas, Inc. v. Nebraska, 210 F.3d 887, 898 (8th Cir.2000). In denying Manion’s motion for an injunction, the district court relied on Peabody Coalsales Co. v. Tampa Elec. Co., 36 F.3d 46 (8th Cir.1994), for the proposition that injunctive relief is inappropriate in a case involving arbitrable issues unless the contract terms contemplate such relief and it can be granted without addressing the merits. The district court observed that the Agreement between Manion and BDA did not contain language similar to the contract in Peabody, which provided for continued performance during the pen-dency of arbitration, and that it could not grant Manion’s motion without interpreting the Agreement and entangling itself in the merits. The court also noted that Manion had not received his salary or benefits for nearly a year before filing this action so an injunction was not needed to maintain the status quo. Manion claims that Peabody entitles him to injunctive relief. He maintains that the Agreement contains the following qualifying language for such relief: Both parties acknowledge that a lawsuit merely for damages that occur, or are likely to occur, as a consequence of a breach of any of the provisions of this Agreement will be inadequate, and that either party is entitled to injunctive relief in case of any breach, as well as all other relief available via law or equity. [The agreement to arbitrate ] is without prejudice to the right of a party under applicable law to request interim relief directly from any court, tribunal, or other governmental authority of competent jurisdiction, and to do so without prior authorization of the arbitrator(s). Such a request for interim relief neither shall be deemed incompatible with, nor a waiver of, the requirement of" }, { "docid": "6945490", "title": "", "text": "MURPHY, Circuit Judge. This case grows out of an employment agreement Patrick Manion had with Boat Dealers’ Alliance, Inc. (BDA), a buying cooperative of independent retail marine dealers. After Manion was terminated as executive director, he brought this action against BDA and its general counsel Stephen E. Nagin and associated entities, alleging breach of contract and of fiduciary-duty, negligence, and interference with contract, and seeking declaratory and in-junctive relief. The district court denied preliminary injunctive and declaratory relief, ordered the parties to arbitration, and stayed the action. Manion appeals. We affirm the order denying a preliminary injunction and dismiss the remainder of the appeal for lack of jurisdiction. Patrick Manion is a Minnesota resident with many years of experience in the retail boat industry. In 1995, Manion hired attorney Stephen Nagin to help him organize and operate a buying cooperative of independent retail marine dealers. With Nagin’s assistance, Boat Dealer’s Alliance, Inc. (BDA), was incorporated in Florida later that year. Nagin subsequently drafted a long term Management Agreement (Agreement) between Manion and BDA. This Agreement, which provided that Man-ion would serve as executive director of BDA for a period of not less than twenty years, included an arbitration clause in the event of any dispute between the parties. The Agreement also included a provision permitting either party to request interim judicial relief: The power conferred by this paragraph is without prejudice to the right of a party under applicable law to request interim relief directly from any court, tribunal, or other governmental authority of competent jurisdiction, and to do so without prior authorization of the arbitrator(s). Such a request for interim relief neither shall be deemed incompatible with, nor a waiver of, the requirement of arbitration of disputes. Another provision indicated that a party would be “entitled to injunctive relief in case of any breach.” In February 1999, the membership of BDA voted to terminate Manion’s employment for gross mismanagement. A year later, Manion filed this lawsuit against BDA, Nagin, and various law firms with which Nagin was or had been affiliated (the Nagin defendants). Manion’s complaint alleged a breach" }, { "docid": "1987233", "title": "", "text": "facts in common with the issue submitted to arbitration. Nevertheless, we agree with appellees that the doctrine of collateral estoppel requires us to accept the arbitrator’s finding concerning the reason for appellant’s discharge. Findings of an arbitrator will bind a court under the doctrine of collateral estoppel when “(1) the issue is identical to one in the prior adjudication; (2) there was a final judgment on the merits; (3) the estopped party was a party ... to the prior adjudication; and (4) the estopped party was given a full and fair opportunity to be heard on the adjudicated issue”. City of Bismarck v. Toltz, King, Duvall, Anderson and Assocs., Inc., 855 F.2d 580, 582 (8th Cir.1988). These requirements clearly were met in the instant case. First, the issue of the cause of appellant’s discharge, of course, was the subject of the arbitration of the wrongful discharge claim. Second, “an arbitration award may constitute a final judgment for the purposes of collateral estop-pel”. Wellons, Inc. v. T.E. Ibberson Co., 869 F.2d 1166 (8th Cir.1989); City of Bismarck, supra, 855 F.2d at 582. Third, appellant was a party to the earlier arbitration. Fourth, appellant had a full and fair opportunity to litigate the issue of the cause of his firing. The arbitrator carefully considered the testimony and credibility of both appellant and Holzer, as well as the testimony of two other witnesses to part of the incident for which appellant was discharged. The arbitrator stated that, except for appellant’s testimony that he was fired for threatening to sue Viacom, he offered no other evidence as to why he was fired. Appellant had a strong incentive to present evidence supporting the theory he alleges in the instant case as the cause of his firing — appellees’ desire to escape liability for the remainder of appellant’s law school tuition — because if he had proved that at arbitration, he certainly would have established a wrongful discharge under the WGA contract. Since the elements of collateral estoppel were established, the district court was bound by the arbitrator’s finding that appellant was validly fired under the" }, { "docid": "6945493", "title": "", "text": "of the Agreement. The court granted BDA’s motion to compel arbitration but stayed this action rather than dismissing it. It denied Manion’s requests for declaratory and injunctive relief, granted the motion of the Nagin defendants to stay proceedings pending completion of arbitration between Manion and BDA, and dismissed the law firm of Litchford and Christopher for lack of personal jurisdiction. Manion attempts to appeal all aspects of the district court’s order except its dismissal of Litchford and Christopher. He contends that the district court erred in denying his contractual right to interim relief in aid of arbitration, in denying his motion for declaratory relief (which is now described as a motion for partial summary judgment), and in staying Manion’s claims against the Nagin defendants. BDA and the Nagin defendants contend that the entire appeal should be dismissed for lack of appellate jurisdiction, but ask for affir-mance if jurisdiction exists. We start with Manion’s appeal from the denial of his motion for injunctive relief because interlocutory appellate jurisdiction exists under 28 U.S.C. § 1292(a)(1). See Morgensterrn v. Wilson, 29 F.3d 1291, 1294-95 (8th Cir.1994) (“if an interlocutory order expressly grants or denies a request for injunctive relief ... the order is immediately appealable as of right”). A district court has broad discretion when ruling on requests for preliminary injunctions, and we will reverse only for clearly erroneous factual determinations, an error of law, or abuse of discretion. See Entergy, Arkansas, Inc. v. Nebraska, 210 F.3d 887, 898 (8th Cir.2000). In denying Manion’s motion for an injunction, the district court relied on Peabody Coalsales Co. v. Tampa Elec. Co., 36 F.3d 46 (8th Cir.1994), for the proposition that injunctive relief is inappropriate in a case involving arbitrable issues unless the contract terms contemplate such relief and it can be granted without addressing the merits. The district court observed that the Agreement between Manion and BDA did not contain language similar to the contract in Peabody, which provided for continued performance during the pen-dency of arbitration, and that it could not grant Manion’s motion without interpreting the Agreement and entangling itself in the" }, { "docid": "11709908", "title": "", "text": "judgments emerged.” Kremer v. Chemical Constr. Corp., 456 U.S. 461, 466, 102 S.Ct. 1883, 1889, 72 L.Ed.2d 262 (1982). In Minnesota, collateral estoppel precludes a party from relitigating a legal or factual issue that was actually litigated in a prior proceeding and was essential to the judgment rendered. See Hauser v. Mealey, 263 N.W.2d 803, 806 (Minn.1978). The party invoking collateral estoppel must show: “(1) the issue was identical to one in a prior adjudication; (2) there was a final judgment on the merits; (3) the estopped party was a party or in privity with a party to the prior adjudication; and (4) the estopped party was given a full and fair opportunity to be heard on the adjudicated issue.” Kaiser v. Northern States Power Co., 353 N.W.2d 899, 902 (Minn.1984). It is now settled in Minnesota that an arbitration award is a prior adjudication for collateral estoppel purposes. See Aufderhar v. Data Dispatch, Inc., 452 N.W.2d 648, 651 (Minn.1990). However, no reported Minnesota case has discussed how to apply to arbitration awards the complex rules that define the collateral estoppel effect of judicial determinations. Equating the arbitrator’s award with a lower court’s judgment, Mandich launches a novel two-pronged attack on the district court’s collateral estoppel analysis. Although arbitrator Ziegler squarely decided the crucial question against him, Mandich argues, that decision may not be given collateral estoppel effect, first, because the Minnesota trial court affirmed on multiple grounds no one of which was “essential to the judgment,” and second, because the Minnesota Court of Appeals affirmed on an alternative ground, the validity of the Watters/Nanne side agreement. The fatal flaw in these arguments is their initial premise, that an arbitration award is like a trial court decision for collateral estoppel purposes. Mandich is invoking principles derived from the nature of appellate review of trial court decisions. See Restatement (Second) of Judgments § 27, comments i, o. The general rule is that, “if a judgment is appealed, collateral estoppel only works as to those issues specifically passed upon by the appellate court.” Hicks v. Quaker Oats Co., 662 F.2d 1158, 1168" }, { "docid": "23529427", "title": "", "text": "the class action complaints filed in the Saunders cases and Canady I reveals that the language formulating the cause of action in the Saunders cases is identical to the language comprising the counts in the Canady I litigation, except that the Saunders complaint supplants the provision of the Fair Housing Act, 42 U.S.C. § 3604(b), with the comparable provision of the Missouri Human Rights Act, Mo.Rev.Stat. § 213.040. The factual allegations underlying the causes of action are also identical. We find that, although the legal theory advanced in the Saunders cases is phrased in terms of Missouri state law, the cause of action remains the same as the original Fair Housing Act claim presented in the Cana-dy I litigation. Therefore, we hold that the district court did not err in relying on the res judicata effect of Canady I in applying the Anti-Injunction Act’s relit-igation exception to the Saunders cases. 2. Collateral Estoppel Effect of Canady I Litigation Appellants additionally contend that, even if res judicata principles do apply, the principles of collateral estoppel should prevent application of the Anti-Injunction Act’s relitigation exception. See Chick Kam Choo, 486 U.S. at 140, 108 S.Ct. 1684 (requiring principles of both collateral estoppel and res judicata to be satisfied in applying relitigation exception to Anti-Injunction Act). We examine four factors to determine if collateral estoppel applies: Collateral estoppel is appropriate when: (1) the issue sought to be precluded is identical to the issue previously decided; (2) the prior action resulted in a final adjudication on the merits; (3) the party sought to be estopped was either a party or in privity with a party to the prior action; and (4) the party sought to be estopped was given a full and fair opportunity to be heard on the issue in the prior action. Wellons, Inc. v. T.E. Ibberson Co., 869 F.2d 1166, 1168 (8th Cir.1989). Our prior discussion establishes that the second and third criteria have been met in this case. -The fourth criterion has been satisfied as well, because the original Canady I plaintiffs were afforded a full and fair opportunity to" } ]

[ { "docid": "1499085", "title": "", "text": "§ 6. . These questions need not be considered at this time because, as suggested below, summary judgment should be denied on this issue. . Mellow v. Medical Malpractice Joint Underwriting Ass'n, 567 A.2d 367, 368 (R.I.1989); Employers' Fire Ins. Co. v. Beals, 103 R.I. 623, 633, 240 A.2d 397, 403 (1968). . Mellow, 567 A.2d at 368; Hingham Mut. Fire Ins. Co. v. Heroux, 549 A.2d 265, 266 (R.I.1988); Flori v. Allstate Ins. Co., 120 R.I. 511, 513, 388 A.2d 25, 26 (1978); Beals, 103 R.I. at 632, 240 A.2d at 402. See also Liberty Life Ins. Co. v. Commercial Union Ins. Co., 857 F.2d 945, 949 (4th Cir.1988). . Flori, 120 R.I. at 513-14, 388 A.2d at 26; Beals 103 R.I. at 631-32, 240 A.2d at 402. . “If some of the claims against the insured fall within the terms of coverage, and some without, the insured must still defend the entire claim (at least until it is apparent that no recovery under the covered theory can be had) but need only indemnify for liability actually covered.\" Titan Holdings Syndicate, Inc., v. Keene, 898 F.2d 265, 269 (1st Cir.1990) (applying New Hampshire law and citing majorily rule as discussed in Western Cas. & Sur. v. Intern. Spas of Ariz., 130 Ariz. 76, 79-80, 634 P.2d 3, 6-7 (App.1981)). Although my research found no Rhode Island Supreme Court case which specifically adopts what the First Circuit and the Arizona court recognize as the \"apparent majority rule,” I think this rule is consistent with Rhode Island law, cf. Beals, 103 R.I. at 632-33, 240 A.2d at 402-03, and I think Rhode Island Supreme Court would apply it if faced with a similar case. .St. Paul Fire & Marine Ins. Co. v. Vigilant Ins. Co., 919 F.2d 235, 239 (4th Cir.1990). See Flori, 120 R.I. at 513, 388 A.2d at 26. . Beals, 103 R.I. at 632, 240 A.2d at 402. See Liberty Life, 857 F.2d at 949. . Plaintiff's Exhibit K. .Id. In this same letter, Liberty Mutual explains that it was able to arrive at this conclusion only after" } ]

[ { "docid": "18775062", "title": "", "text": "and by failing to provide timely notice of the incidents of sexual abuse. There is no reason to stay a determination as to whether the nature of defendants’ alleged conduct negates Aetna’s duty to defend because that determination does not require resolution of any factual issues presented in the underlying litigation. Under Rhode Island law, an insurer’s duty to defend is broader than its duty to indemnify. Mellow v. Medical Malpractice Joint Underwriting Assn., 567 A.2d 367, 368 (R.I.1989); Beals, 103 R.I. at 633, 240 A.2d 397. A duty to defend arises if the factual allegations contained in the complaint raise a reasonable possibility of coverage. Mellow, 567 A.2d at 368; Hingham Mutual Fire Ins. Co. v. Heroux, 549 A.2d 265, 266 (R.I.1988); Flori v. Allstate Ins. Co., 120 R.I. 511, 513, 388 A.2d 25 (1978); Beals, 103 R.I. at 632, 240 A.2d 397. An insurer is not relieved of its duty to defend even though additional facts might be developed that would negate coverage. Flori, 120 R.I. at 513-14, 388 A.2d 25; Beals, 103 R.I. at 631-32, 240 A.2d 397. Nor is an insurer relieved of its duty to defend on the ground that the claim against the insured lacks merit. Flori, 120 R.I. at 513, 388 A.2d 25 (citing eases). In short, determining whether an insurer has a duty to defend requires nothing more than comparing the allegations in the complaint with the terms of the policy. If the facts alleged in the complaint fall within the risks covered by the policy, the insurer is obligated to defend. Otherwise, it is not. Flori, 120 R.I. at 513, 388 A.2d 25. Indeed, in this case, Aetna’s own policy expressly provides that Aetna is obliged to provide a defense “even if any of the allegations of the suit [against the insured] are groundless, false or fraudulent.” Aetna’s second reason for disclaiming any duty to defend presents a more difficult question. In order to prevail on the ground that the diocesan defendants failed to disclose or report the alleged sexual abuse, Aetna would have to establish, among other things, that the" }, { "docid": "5453786", "title": "", "text": "court should read the policy to avoid ambiguities and not torture the language so as to create them. See St. Paul Fire & Marine Ins. Co. v. United States Fire Ins. Co., 655 F.2d 521, 524 (3d Cir.1981). An insurer’s duty to defend arises “whenever the complaint filed by the injured party may potentially come within the policy’s coverage.” Pacific Indem. Co. v. Linn, 766 F.2d 754, 760 (3d Cir.1985). If the factual allegations of the complaint, taken as true, state a claim to which the policy potentially applies, “the insurer must defend the case until it [can] confine the claim to a recovery that the policy [does] not cover.” Cadwallader v. New Amsterdam Cas. Co., 396 Pa. 582, 590, 152 A.2d 484, 488 (1959). To determine whether a claim may be covered, the court must ascertain the scope of the insurance coverage, and then analyze the allegations in the complaint. See Britamco Underwriters, Inc. v. Grzeskiewicz, 433 Pa.Super. 55, 59, 639 A.2d 1208, 1210 (1994). An insurer’s duty to defend is separate and distinct from its duty to indemnify. See Erie Ins. Exch. v. Transamerica Ins. Co., 516 Pa. 574, 583, 533 A.2d 1363, 1368 (1987). The duty to defend is broader than a duty to indemnify. The duty to indemnify arises only when the insured is found to be liable for damages covered by the policy. The burden of proving that a particular claim falls within the coverage of a policy is on the insured. See id. at 580, 533 A.2d at 1366-67. The scope of National Union’s obligation to indemnify and defend its insureds is defined in the umbrella policy section entitled: “Insurance Agreements I. Coverage.” This section of the policy provides: We will pay on behalf of the Insured those sums in excess of the Retained Limit that the Insured becomes legally obligated to pay by reason of liability imposed by law or assumed by the Insured under an Insured Contract because of Bodily Injury, Property Damage, Personal Injury or Advertising Injury that takes place during the Policy period and is caused by an Occurrence happening" }, { "docid": "18775065", "title": "", "text": "the diocesan defendants were aware of the alleged abuse would not necessarily preclude coverage. In order to negate coverage for failure to report or disclose the alleged sexual abuse, Aetna also would have to prove that it was prejudiced by the insured’s delay in providing notice of the alleged abuse or that any nondisclosure was material to its decision to issue the policy. Textron, Inc. v. Liberty Mutual Ins. Co., 639 A.2d 1358, 1364 (R.I.1994); Evora v. Henry, 559 A.2d 1038, 1040 (R.I.1989) (dealing with fire insurance). More importantly, litigating the abuse and knowledge issues in this case would create a far more immediate and serious conflict of interest than any potential conflict Aetna now faces. It would convert Aetna and the diocesan defendants from allies to adversaries with respect to issues that are critical to adjudication of the diocesan defendants’ tort liability. In addition, if Aetna succeeds in demonstrating that abuse occurred and that the diocesan defendants knew it, those determinations are likely to be binding on the diocesan defendants in the underlying litigation under the doctrines of res judicata and/or collateral estoppel. Rhode Island Student Loan Authority v. NELS, 600 A.2d 717, 720 and n. 2 (R.I.1991); DeCosta v. Viacom Int’l, Inc., 981 F.2d 602 (1st Cir.1992) (federal rule of collateral estoppel); Gonzalez v. Banco Central Corp., 27 F.3d 751 (1st Cir.1991) (federal rule of res judicata). Accordingly, by proceeding with this declaratory judgment action, Aetna, in effect, would be seeking to prove the diocesan defendants liable in tort. Those efforts would be inconsistent with Aetna’s obligations as an insurer. The principal purpose of liability insurance is to pro tect policy holders from claims asserted by third parties based on matters covered by the policy. By taking action that makes a policy holder liable for such claims, an insurer would subvert the purpose of the policy and violate one of the most fundamental duties it owes to its insured. In that respect, the situation presented in this case is materially different from the situation presented in the typical declaratory action brought by an insurer against its insured in" }, { "docid": "16828178", "title": "", "text": "Contesting Coverage The first legal question presented by the parties is whether Allstate, by breaching its duty to defend, is precluded from raising contractual defenses to the duty to indemnify. Mr. Flannery argues that an insurer’s breach of its duty to defend results in the creation of a duty to indemnify, even where no duty to indemnify exists under the insurance policy. Allstate disagrees, arguing that no Colorado court has precluded an insurer from contesting coverage when the insurer’s refusal to defend is in good faith. (Defs.’ 2/8/99 Brf. at 5.) For the reasons set forth below, I hold that an insurer does not forfeit its right to contest coverage when it -has breached its obligation to defend its insured. When the Colorado Supreme- Court has not addressed an issue, I must anticipate how that Court would rule and hold accordingly. Adams-Arapahoe School Dist. No. 28-J v. GAF Corp., 959 F.2d 868, 871 (10th Cir.1992). In so predicting, I consider “state court decisions, decisions of other states, federal decisions, and the general weight and trend of authority.” Armijo v. Ex Cam, Inc., 843 F.2d 406, 407 (10th Cir.1988). Mr. Flannery argues that Colorado will join the minority of jurisdictions in holding that an insurer who breaches its duty to defend is precluded from raising coverage defenses. See, e.g., Underwriters at Lloyds v. Denali Seafoods, Inc., 927 F.2d 459, 462-465 (9th Cir.1991) (applying Washington law); St. Paul Fire & Marine Ins. Co. v. Vigilant Ins. Co., 919 F.2d 235, 240 (4th Cir.1990) (applying North Carolina law); Jones v. Southern Marine & Aviation Underwriters, Inc., 888 F.2d 358, 363 (5th Cir.1989) (applying Mississippi law); Solo Cup Co. v. Federal Ins. Co., 619 F.2d 1178, 1184 (7th Cir.1980) (applying Illinois law); Sauer v. Home Indemnity Co., 841 P.2d 176, 183 (Alaska 1992); Missionaries of Co. of the Mary, Inc. v. Aetna Casualty & Surety Co., 155 Conn. 104, 113-114, 230 A.2d 21, 25-26 (1967); Conanicut Marine Services, Inc. v. Insurance Co. of North America, 511 A.2d 967, 971 (R.I.1986). The majority of jurisdictions which have considered the question, however, do not preclude an" }, { "docid": "4109124", "title": "", "text": "(1991) (citing Rhode Island Turnpike and Bridge Auth. v. Bethlehem Steel Corp., 119 R.1. 141, 379 A.2d 344, 357 (1977)). Bogosian has offered no credible evidence to dispute either the reasonableness of F + M’s outstanding fees or the accuracy of their calculation. Accordingly, F + M is entitled to summary judgment on its breach of contract claim. Pursuant to Fed.R.Civ.P. 56(d) the Court finds that the amount owed to F + M by Bogosian is $1,079,282.30, plus any interest which has accrued since June 9, 1994 on the principal amount. Judgment will be entered for F + M when a showing is made by F + M of Fleet’s prime rate from June 9, 1994 to date of judgment and a final calculation is made. D. Bogosian’s Attorney Malpractice Counterclaim The Court accepts Magistrate Judge Boudewyns’ recommendation that summary judgment be granted for F + M on Bogosian’s attorney malpractice counterclaim. Bogosian has failed to present the affidavit of any expert witness to support her allegation that F + M committed malpractice while representing her. Under Rhode Island law, a party seeking to establish liability for attorney malpractice must prove that the attorney breached his or her duty to the client by failing to exercise “ordinary care and skill” in handling the client’s legal affairs. Focus Inv. Assoc., Inc. v. American Title Ins. Co., 992 F.2d 1231, 1239 (1st Cir.1993) (citing Holmes v. Peck, 1 R.I. 242, 245 (R.I.1849)). The claimant must also prove that the alleged breach was the proximate cause of her damages. Scuncio Motors, Inc. v. Teverow, 635 A.2d 268, 269 (R.I.1993). Therefore, to survive a motion for summary judgment, the claimant must produce competent evidence sufficient to raise a jury question as to the standard of care to which the attorney should be held, the scope of the attorney’s duty to the client, the existence of a breach of that duty, and the damages to the claimant proximately caused by that breach. No Rhode Island cases address the issue of what constitutes competent evidence in an attorney malpractice action. However, as the First Circuit found" }, { "docid": "1879858", "title": "", "text": "both flow from a determination that the underlying complaint triggers coverage; this determination is not based solely on the particular cause of action pleaded, but “[ijnstead it is necessary to look at the factual allegations contained in the complaint.” Mutual Benefit Ins. Co. v. Haver, 555 Pa. 534, 725 A.2d 743, 745 (1999); C.H. Heist Caribe Corp.,, 640 F.2d at 483 (the factual allegations of complaint must be reviewed to determine whether terms of policy potentially apply). The averments of the underlying complaint must be “liberally construed with all doubts as to whether the claims may fall within the policy coverage to be resolved in favor of the insured.” Roman Mosaic & Tile Co. v. Aetna Cas. & Sur. Co., 704 A.2d 665, 669 (Pa.Super.1997) (citing Cadioallader v. New Amsterdam Cas. Co., 396 Pa. 582, 152 A.2d 484 (1959); The Frog, Switch and Manufacturing Co., 193 F.3d at 746). In contrast, the actual duty to indemnify stands on separate footing. An insurer is required to indemnify only where the insured is held liable for a claim actually covered by the policy. Allen, 692 A.2d at 1095 (citing Pacific Indemnity Co. v. Linn, 766 F.2d 754 (3d Cir.1985)); see also Winner International Corp. v. Continental Casualty Co., 889 F.Supp. 809, 816 (W.D.Pa.1994) (“While an insurer must defend its insured if the complaint alleges conduct that potentially falls within the scope of the policy, it must indemnify its insured only if Lability is found for conduct that actually falls within the scope of the policy.”) (citing Allstate Ins. Co. v. Brown, 834 F.Supp. 854, 857 (E.D.Pa.1993) (there is no duty to indemnify “if the conduct for which the insured is found liable does not come within the scope of the policy”)) (citing Air Products & Chemicals v. Hartford Accident & Indemnity Co., 707 F.Supp. 762, 776 (E.D.Pa.1989)). Thus, the duty to indemnify does not arise until the liability imposed against the insured is conclusively established. C.H. Heist Caribe Corp., 640 F.2d at 483; Enron Oil Trading & Transportation Co. v. Underwriters of Lloyd’s of London, 47 F.Supp.2d 1152, 1161 (D.Mont.1996) (actual indemnification" }, { "docid": "18775063", "title": "", "text": "R.I. at 631-32, 240 A.2d 397. Nor is an insurer relieved of its duty to defend on the ground that the claim against the insured lacks merit. Flori, 120 R.I. at 513, 388 A.2d 25 (citing eases). In short, determining whether an insurer has a duty to defend requires nothing more than comparing the allegations in the complaint with the terms of the policy. If the facts alleged in the complaint fall within the risks covered by the policy, the insurer is obligated to defend. Otherwise, it is not. Flori, 120 R.I. at 513, 388 A.2d 25. Indeed, in this case, Aetna’s own policy expressly provides that Aetna is obliged to provide a defense “even if any of the allegations of the suit [against the insured] are groundless, false or fraudulent.” Aetna’s second reason for disclaiming any duty to defend presents a more difficult question. In order to prevail on the ground that the diocesan defendants failed to disclose or report the alleged sexual abuse, Aetna would have to establish, among other things, that the abuse occurred and that the diocesan defendants were aware of it at the time. Those allegations are central to adjudication of the diocesan defendants’ liability in the underlying litigation. Therefore, addressing them in this case would result in duplication of effort and create a risk of inconsistent results. In short, such a course would be the antithesis of wise judicial administration. Moreover, there are no conflict of interest considerations that are sufficiently compelling to outweigh the undesirable consequences of such piecemeal litigation. Aetna and the diocesan defendants have a mutual interest in disputing the allegations that sexual abuse occurred, and that the diocesan defendants were aware or should have been aware of it because, unless those allegations are proven, it is doubtful that tort liability can be imposed upon the diocesan defendants. Therefore, in defending the underlying litigation, Aetna would have little reason to take a position on those issues that is contrary to that of the diocesan defendants. Aetna’s incentive to take a contrary position is further diminished by the fact that establishing that" }, { "docid": "137105", "title": "", "text": "and because under Maine law “[wjhether an insurer has an obligation to defend its insured against a complaint is a question of law.” Elliott v. Hanover Ins. Co., 711 A.2d 1310, 1312 (Me.1998) (citing N. Sec. Ins. Co. v. Dolley, 669 A.2d 1320, 1322 (Me.1996)). Further, the question of whether there is an ambiguity in the contract is itself a conclusion of law, reviewed de novo. Crowe v. Bolduc, 334 F.3d 124, 134 (1st Cir.2003); Geyerhahn v. U.S. Fidelity & Guar. Co., 724 A.2d 1258, 1261 (Me.1999). Maine has consistently adhered to a pleading comparison test to determine whether there is a duty to defend; that is, Maine resolves the question of “whether there exists a duty to defend ... by comparing the complaint with the terms of the insurance contract.” Elliott, 711 A.2d at 1312; see Found. for Blood Research v. St. Paul Marine and Fire Ins. Co., 730 A.2d 175, 177 (Me.1999) (“It is black letter law in [Maine] that an insurer’s duty to defend is determined by comparing the allegations in the underlying complaint with the provisions of the insurance policy.”). This is the case even when the undisputed facts show the injury in question was not covered by the policy. Elliott, 711 A.2d at 1312. Under this comparison test, the insurer has a duty to defend if the underlying complaint discloses a “potential or a possibility ” for liability within the policy’s coverage. Id. (emphasis added). Significantly, “[t]he duty to defend is broader than the duty to indemnify, and an insurer may have to defend before it is clear whether there is a duty to indemnify.” Commercial Union Ins. Co. v. Royal Ins. Co., 658 A.2d 1081, 1083 (Me.1995). Maine requires that insurance policies be “interpreted most strongly against the insurer.” Baybutt Constr. Corp. v. Commercial Union Ins. Co., 455 A.2d 914, 921 (Me.1983), overruled on other grounds, Peerless Ins. Co. v. Brennon, 564 A.2d 383 (Me.1989). “Any ambiguity must be resolved in favor of a duty to defend.” Mass. Bay Ins. Co. v. Ferraiolo Constr. Co., 584 A.2d 608, 609 (Me.1990). Essex argues that the" }, { "docid": "4008703", "title": "", "text": "America, 79 N.Y.2d 623, 584 N.Y.S.2d 744, 595 N.E.2d 819 (1992), is the most analogous case and that we should adopt its reasoning. Faced with the same definition of bodily injury as at issue here, the Lavanant court held that the policy covered depression. The court stated that the terms sickness and disease enlarged the term bodily injury and “to the average reader máy include mental as well as physical sickness and disease.” Id. 584 N.Y.S.2d at 747, 595 N.E.2d at 822. The court declined to “rewrite the contract to add ‘bodily sickness’ and ‘bodily disease,’ [because the insurer] could itself have specified such limitations in drafting its policy, but it did not do so.” Id. Contrary to Lavanant, we believe that the most natural reading of “bodily injury, sickness, or disease” indicates that “bodily” modifies all three terms, see E-Z Loader Boat Trailers, Inc. v. Travelers Indemnity Co., 106 Wash.2d 901, 908; 726 P.2d 439, 443 (1986) (en banc), thereby covering only injuries with some physical component. The term is therefore not ambiguous. This meaning accords with that given to the same definition of bodily injury by the majority of courts. See, e.g., SL Industries, Inc. v. American Motorists Ins. Co., 128 N.J. 188, 607 A.2d 1266, 1274 (1992) (collecting cases); Voorhees v. Preferred Mutual Ins. Co., 128 N.J. 165, 607 A.2d 1255, 1260-61 (1992) (collecting cases); Mellow v. Medical Malpractice Joint Underwriting Assoc., 567 A.2d 367, 368 (R.I.1989). We need not decide today whether Wisconsin courts would read “bodily injury” to cover not only purely physical injury but also emotional damages accompanied by physical injury. Knapp alleged only that defendants’ conduct resulted in her becoming socially isolated and depressed. She did not complain of any physical problems and we will not take judicial notice, as defendants requested at oral argument, that depression is often manifested physically. We determine the insurer’s duty to defend by the face of the complaint, which here does not allege any bodily injury. Knapp alleged other damages such as being forced to rent an inferior apartment far from her church and friends, but these" }, { "docid": "86323", "title": "", "text": "N.C.App. 464, 369 S.E.2d 367, 373 (1988). The duty to defend, which is broader than the duty to indemnify, “depends solely on the allegations in the complaint filed against the insured.” Tropical Park, Inc. v. United States Fid. & Guar. Co., 357 So.2d 253, 256 (Fla.Dist.Ct.App.1978). Thus, when construing the duty to defend, the court considers whether the allegations of the complaint implicate potential coverage. Id. “If the complaint alleges facts partially within and partially outside the scope of coverage, the insurer is obligated to defend the entire suit.” Id. This is so, even though the underlying action may eventually produce a result which in fact does not trigger a duty to indemnify. Id. “Consequently, an insurer may be required to defend a suit even if the later true facts show that there is no coverage.” Trizec Prop., Inc. v. Biltmore Const. Co., Inc., 767 F.2d 810, 812 (11th Cir.1985). In contrast to the duty to defend, which is determined by looking to the allegations of a complaint, the duty to indemnify is dependent upon the entry of a final judgment, settlement, or a final resolution of the underlying claims by some other means. See Travelers Ins. Co. v. Waltham Indus. Lab. Corp., 883 F.2d 1092, 1099 (1st Cir.1989); Beaudette, Inc. v. Sentry Ins., 94 F.Supp.2d 77, 100 (D.Mass.1999). Unless the insured can demonstrate that it suffered a covered loss under the policy, the insurer has no duty to indemnify whatsoever. Celotex Corp. v. AIU Ins. Co., (In re Celotex Corp.), 152 B.R. 661 (Bankr.M.D.Fla.1993). Thus, “whereas the duty to defend is measured by the allegations of the underlying complaint, the duty to indemnify is measured by the facts as they unfold at trial or are inherent in the settlement agreement.” Id. Because an insurer’s duty to indemnify is dependent on the outcome of a case, any declaration as to the duty to indemnify is premature unless there has been a resolution of the underlying claim. Bankwest v. Fidelity & Deposit Co. of Md., 63 F.3d 974, 981-82 (10th Cir.1995); Nationwide Ins. v. Zavalis, 52 F.3d 689, 693 (7th Cir.1995);" }, { "docid": "18775060", "title": "", "text": "proceeding with a declaratory judgment action. However, it is not necessarily determinative. An assessment must be made regarding the likelihood that a declaratory judgment, in fact, will eliminate the conflict. In addition, that likelihood must be balanced against countervailing factors such as the strong interest in avoiding piecemeal litigation and the possibility that the declaratory judgment action -will create other conflicts. Finally, the appropriateness of proceeding with a declaratory judgment action must be evaluated in light of alternative methods for dealing with any conflicts confronting the insurer. See, Employers’ Fire Ins. Co. v. Beals, 103 R.I. 623, 634, 240 A.2d 397 (1968) (suggesting that, in cases where both covered and uncovered conduct is alleged, the insurer may either permit the insured to select counsel to defend the underlying litigation or retain additional counsel to represent the insured with respect to any divergent interests). II. Application of the Principles In this case, the claims of all parties in interest can be adjudicated satisfactorily in the underlying litigation. The tort plaintiffs and tort defendants are direct participants in those cases. In addition, Aetna, as the tort defendants’ insurer, is an indirect participant in the underlying litigation and has the option of raising any coverage questions in state court pursuant to the Rhode Island Declaratory Judgment Act. R.I.Gen.Laws § 9-30-1. Indeed, state court would be a particularly appropriate forum in which to address those questions because the questions are governed by state law. It is not so easy to determine the extent to which the declaratory judgment action requires the resolution of common factual questions or the likelihood that it will alleviate potential conflicts of interest. Those assessments must be made in the context of the individual claims made by Aetna. A. The Duty to Defend Aetna cites what boils down to two grounds for disclaiming any duty to defend. First, it contends that the underlying tort claims are based on conduct not covered by the policy. In addition, it alleges that the Diocese violated policy requirements both by omitting from its application for insurance material information regarding the propensities of the priests" }, { "docid": "1499086", "title": "", "text": "for liability actually covered.\" Titan Holdings Syndicate, Inc., v. Keene, 898 F.2d 265, 269 (1st Cir.1990) (applying New Hampshire law and citing majorily rule as discussed in Western Cas. & Sur. v. Intern. Spas of Ariz., 130 Ariz. 76, 79-80, 634 P.2d 3, 6-7 (App.1981)). Although my research found no Rhode Island Supreme Court case which specifically adopts what the First Circuit and the Arizona court recognize as the \"apparent majority rule,” I think this rule is consistent with Rhode Island law, cf. Beals, 103 R.I. at 632-33, 240 A.2d at 402-03, and I think Rhode Island Supreme Court would apply it if faced with a similar case. .St. Paul Fire & Marine Ins. Co. v. Vigilant Ins. Co., 919 F.2d 235, 239 (4th Cir.1990). See Flori, 120 R.I. at 513, 388 A.2d at 26. . Beals, 103 R.I. at 632, 240 A.2d at 402. See Liberty Life, 857 F.2d at 949. . Plaintiff's Exhibit K. .Id. In this same letter, Liberty Mutual explains that it was able to arrive at this conclusion only after reading the deposition testimony of George Strong (Harden’s expert witness on financial and accounting matters) which alleged that \"Nortek approached the company that manufactures boxes for Harden and asked for similar or identical boxes.” The Harden Complaint clearly alleges, however, “the [Nortek] boxes bear Harden's unique model designation numbering information\" and that Nortek \"[misappropriated] Harden display racks and display products” and \"[circulated] advertising materials in a catalog.” . Plaintiff's Exhibit K. . Plaintiff's Exh. J at 113-15. . Plaintiff's Exh. J at 119-20. . St. Paul Fire & Marine Ins. Co. v. Vigilant Ins. Co., 919 F.2d 235, 239 (4th Cir.1990). See Flori, 120 R.I. at 513, 388 A.2d at 26. . In addition to the instances referenced supra where Liberty Mutual has admitted a duty to defend, Nortek also characterizes as admissions: Liberty Mutual's payment of the two million dollars in settlement, statements of counsel before Magistrate Judge Hagopian, and Liberty Mutual’s response to Nortek's interrogatory No. 2. .The “reservation of rights,\" Liberty Mutual argues, is found in letters dated April 1, 1991 and" }, { "docid": "11632944", "title": "", "text": "on whether these uncontested facts fit within the scope of the coverage provided by the two policies. Given this, adjudication by way of summary judgment is appropriate. III. This case is what is referred to in common legal parlance as a “duty to defend” case. In essence, a duty to defend ease is a dispute over insurance policy coverage between an insurer and an entity claiming to be an insured under a policy issued by the insurer. The dispute typically arises, as here, in a declaratory judgment action in which the entity claiming coverage under the policy seeks a declaration that the policy obligates the insurer to defend and indemnify the entity with respect to a claim being asserted against the entity. Because the focus is on whether the insurer has a duty to defend a claim against the insured and because the claim has not yet been sharply defined through litigation, the duty to indemnify must often await a later day to be definitively resolved. The principles governing “duty to defend” cases are well-settled under Virginia law. They are as follows: (i) First, the duty to defend is ascertained by determining whether the allegations in the underlying lawsuit fall within the scope of the policy terms that define the scope of coverage. This determination is guided by a combination of two rules: (1) the Exclusive Pleading Rule and (2) the Potentiality Rule. See Transcontinental Ins. Co. v. Caliber One Indemnity Co., 367 F.Supp.2d 994, 1000 (E.D.Va.2005). (ii) Under the Exclusive Pleading Rule an insurer’s duty to defend is determined solely by the claims asserted against the insured in the underlying action. Id. (iii) And, under the Potentiality Rule, any possibility that a judgment against the insured will be covered under the terms of the insured’s policy is sufficient to give rise to a duty to defend. See Solers, Inc. v. Hartford Cas. Ins. Co., 146 F.Supp.2d 785, 791 (E.D.Va.2001). As a result, “an insurer’s duty to defend is broader than its duty to indemnify.” Transcontinental Ins. Co. v. Caliber One Indemnity Co., 367 F.Supp.2d 994, 1000 (E.D.Va.2005). (iv) The" }, { "docid": "3028647", "title": "", "text": "babysitting business of Sharon Thoele and thus falls within the business pursuits exclusion of the Thoeles’ home insurance policy. The exception to this exclusion for activities ordinarily incident to non-business pursuits does not apply, as Calvin Thoele’s efforts were an inherent part of the care Sharon Thoele was paid to provide Angela. The district court was therefore correct in concluding that the policy did not provide coverage to Calvin Thoele in this instance and that Aetna bore no duty to defend or indemnify him. AFFIRMED. . Many jurisdictions, including Illinois, have recognized an \"innocent co-insured” exception in cases where one insured engages in misdeeds which, if coverage were denied, would unfairly burden other members of the household — for example, where one spouse sets fire to the family home without the other spouse's knowledge. See Economy Fire & Casualty Co. v. Warren, 71 Ill.App.3d 625, 28 Ill.Dec. 194, 196-97, 390 N.E.2d 361, 363-64 (1979); Fittje v. Calhoun County Mut. County Fire Ins. Co., 195 Ill.App.3d 340, 142 Ill.Dec. 3, 7, 552 N.E.2d 353, 357 (1990); cf. West Bend Mut. Ins. Co. v. Salemi, 158 Ill.App.3d 241, 110 Ill.Dec. 608, 612, 511 N.E.2d 785, 789 (1987) (employing similar rationale to protect seller of real estate who retained interest in property destroyed by buyer’s arson). See also, e.g., Kulubis v. Texas Farm Bureau Underwriters Ins. Co., 706 S.W.2d 953 (Tex.1986); Hedtcke v. Sentry Ins. Co., 109 Wis.2d 461, 326 N.W.2d 727 (1982); Morgan v. Cincinnati Ins. Co., 411 Mich. 267, 307 N.W.2d 53 (1981); Delph v. Potomac Ins. Co., 95 N.M. 257, 620 P.2d 1282 (1980). Contra Bryant v. Allstate Ins. Co., 592 F.Supp. 39, 4H2 (E.D.Ky.1984); Dolcy v. Rhode Island Joint Reins. Assoc., 589 A.2d 313 (R.I.1991); Vance v. Pekin Ins. Co., 457 N.W.2d 589, 593 (Iowa 1990); Woodhousev. Farmers Union Mut. Ins. Co., 241 Mont. 69, 785 P.2d 192, 194 (1990). We do not believe the Illinois Supreme Court would find the \"innocent co-insured” rationale applicable here, where Mr. Thoele was not an unwitting “victim” of any wrongdoing by his wife. Instead, the Kanaks seek to hold him liable for" }, { "docid": "4008704", "title": "", "text": "meaning accords with that given to the same definition of bodily injury by the majority of courts. See, e.g., SL Industries, Inc. v. American Motorists Ins. Co., 128 N.J. 188, 607 A.2d 1266, 1274 (1992) (collecting cases); Voorhees v. Preferred Mutual Ins. Co., 128 N.J. 165, 607 A.2d 1255, 1260-61 (1992) (collecting cases); Mellow v. Medical Malpractice Joint Underwriting Assoc., 567 A.2d 367, 368 (R.I.1989). We need not decide today whether Wisconsin courts would read “bodily injury” to cover not only purely physical injury but also emotional damages accompanied by physical injury. Knapp alleged only that defendants’ conduct resulted in her becoming socially isolated and depressed. She did not complain of any physical problems and we will not take judicial notice, as defendants requested at oral argument, that depression is often manifested physically. We determine the insurer’s duty to defend by the face of the complaint, which here does not allege any bodily injury. Knapp alleged other damages such as being forced to rent an inferior apartment far from her church and friends, but these items clearly do not fall either within the term bodily injury or property damage. See Qualman v. Bruckmoser, 163 Wis.2d 361, 471 N.W.2d 282, 285 (Ct.App.Wis.1991) (pecuniary losses not covered as bodily injury or property damage). The district court correctly granted summary judgment for Economy Preferred. For the foregoing reasons, we affirm the decision of the district court. AFFIRMED. . Knapp testified that Erickson met with her that day; defendants presented evidence that Knapp actually met with another rental agent, Connie Adomato. . The relevant section states, in part: No person in the United States shall, on the basis of sex, be excluded from participation in, be denied the benefits of, or be subjected to discrimination under any education program or activity receiving Federal financial assistance ... 20 U.S.C. § 1681. The Court had previously found an implied cause of action under the statute. Cannon, 441 U.S. at 709, 99 S.Ct. at 1964. . Knapp also asserts that an injunction would be inadequate because she has signed a lease for another apartment. We assume that" }, { "docid": "8107210", "title": "", "text": "any policy exclusion on which defendant relies exist. B. The Burdens of Proof In a diversity action such as this, the law of Texas determines which party has the burden of proof on pertinent issues of fact. Ideal Mut. Ins. Co. v. Last Days Evangelical Ass’n, Inc., 783 F.2d 1234, 1240 (5th Cir.1986). Texas law places the burden of proving the existence of coverage under an insurance policy on the party claiming it. Guar. Nat’l Ins. Co. v. Vic Mfg. Co., 143 F.3d 192, 193 (5th Cir.1998). On the other hand, since 1991 in Texas an insurer has had the burden of proving the applicability of any exclusion in the policy. Id.; see also Telepak v. United Servs. Auto. Ass’n, 887 S.W.2d 506, 507 (Tex.App.—San Antonio 1994, writ denied); Tex. Ins. Code § 21.58(b). However, the insured has the burden to prove the applicability of an exception to an exclusion. Vic Mfg. Co., 143 F.3d at 193. C. Duty to Defend vs. Duty to Indemnify An insurer’s duty to defend and duty to indemnify are distinct and separate. See Fanners Tex. County Mut. Ins. Co. v. Griffin, 955 S.W.2d 81, 82 (Tex.1997). However, the scope of the insurance coverage determines the outcome of both inquiries. If the claims alleged against the insured are outside the scope of the coverage, there obviously is no duty to indemnify. Similarly, “[i]f a petition against an insured alleges only facts that are not covered by the policy, the insurer is not required to defend.” Folsom Invs. v. Am. Motorists Ins. Co., 26 S.W.3d 556, 559 (Tex.App.—Dallas 2000, no pet.). As one Texas appellate court explained, “[t]he court will not imagine factual scenarios that might trigger coverage or read facts into the pleadings”; and, “[i]f a petition does not allege facts within the scope of the coverage, an insurer is not legally required to defend the suit against its insured.” Devoe v. Great Am. Ins., 50 S.W.3d 567, 570 (Tex.App.—Austin 2001, no pet.). D. Duty to Indemnify is Ripe for Adjudication The requirement in federal court that an actual controversy exist before a declaratory judgment" }, { "docid": "18775061", "title": "", "text": "in those cases. In addition, Aetna, as the tort defendants’ insurer, is an indirect participant in the underlying litigation and has the option of raising any coverage questions in state court pursuant to the Rhode Island Declaratory Judgment Act. R.I.Gen.Laws § 9-30-1. Indeed, state court would be a particularly appropriate forum in which to address those questions because the questions are governed by state law. It is not so easy to determine the extent to which the declaratory judgment action requires the resolution of common factual questions or the likelihood that it will alleviate potential conflicts of interest. Those assessments must be made in the context of the individual claims made by Aetna. A. The Duty to Defend Aetna cites what boils down to two grounds for disclaiming any duty to defend. First, it contends that the underlying tort claims are based on conduct not covered by the policy. In addition, it alleges that the Diocese violated policy requirements both by omitting from its application for insurance material information regarding the propensities of the priests and by failing to provide timely notice of the incidents of sexual abuse. There is no reason to stay a determination as to whether the nature of defendants’ alleged conduct negates Aetna’s duty to defend because that determination does not require resolution of any factual issues presented in the underlying litigation. Under Rhode Island law, an insurer’s duty to defend is broader than its duty to indemnify. Mellow v. Medical Malpractice Joint Underwriting Assn., 567 A.2d 367, 368 (R.I.1989); Beals, 103 R.I. at 633, 240 A.2d 397. A duty to defend arises if the factual allegations contained in the complaint raise a reasonable possibility of coverage. Mellow, 567 A.2d at 368; Hingham Mutual Fire Ins. Co. v. Heroux, 549 A.2d 265, 266 (R.I.1988); Flori v. Allstate Ins. Co., 120 R.I. 511, 513, 388 A.2d 25 (1978); Beals, 103 R.I. at 632, 240 A.2d 397. An insurer is not relieved of its duty to defend even though additional facts might be developed that would negate coverage. Flori, 120 R.I. at 513-14, 388 A.2d 25; Beals, 103" }, { "docid": "4109125", "title": "", "text": "her. Under Rhode Island law, a party seeking to establish liability for attorney malpractice must prove that the attorney breached his or her duty to the client by failing to exercise “ordinary care and skill” in handling the client’s legal affairs. Focus Inv. Assoc., Inc. v. American Title Ins. Co., 992 F.2d 1231, 1239 (1st Cir.1993) (citing Holmes v. Peck, 1 R.I. 242, 245 (R.I.1849)). The claimant must also prove that the alleged breach was the proximate cause of her damages. Scuncio Motors, Inc. v. Teverow, 635 A.2d 268, 269 (R.I.1993). Therefore, to survive a motion for summary judgment, the claimant must produce competent evidence sufficient to raise a jury question as to the standard of care to which the attorney should be held, the scope of the attorney’s duty to the client, the existence of a breach of that duty, and the damages to the claimant proximately caused by that breach. No Rhode Island cases address the issue of what constitutes competent evidence in an attorney malpractice action. However, as the First Circuit found in Focus, While there is no Rhode Island ease law addressing the issue of expert testimony in a legal malpractice case, a review of other jurisdictions indicates that the most widely accepted rule is that a legal malpractice plaintiff must present expert testimony establishing the appropriate standard of care unless the attorney’s lack of care and skill is so obvious that the trier of fact can resolve the issue as a matter of common knowledge. 992 F.2d at 1239. Cases which can be resolved based on a layperson’s common knowledge are those where negligence is “clear and palpable” and where the fact finder need not analyze the attorney’s exercise of legal expertise. Focus, 992 F.2d at 1239. However, if the attorney’s legal expertise is at issue, “a jury cannot rationally apply negligence principles to professional conduct absent evidence of what the competent lawyer would have done under similar circumstances____” Focus, 992 F.2d at 1239 (quoting Lenius v. King, 294 N.W.2d 912, 914 (S.D.1980)). In such eases, where expert evidence is required but not adduced, summary" }, { "docid": "11632945", "title": "", "text": "under Virginia law. They are as follows: (i) First, the duty to defend is ascertained by determining whether the allegations in the underlying lawsuit fall within the scope of the policy terms that define the scope of coverage. This determination is guided by a combination of two rules: (1) the Exclusive Pleading Rule and (2) the Potentiality Rule. See Transcontinental Ins. Co. v. Caliber One Indemnity Co., 367 F.Supp.2d 994, 1000 (E.D.Va.2005). (ii) Under the Exclusive Pleading Rule an insurer’s duty to defend is determined solely by the claims asserted against the insured in the underlying action. Id. (iii) And, under the Potentiality Rule, any possibility that a judgment against the insured will be covered under the terms of the insured’s policy is sufficient to give rise to a duty to defend. See Solers, Inc. v. Hartford Cas. Ins. Co., 146 F.Supp.2d 785, 791 (E.D.Va.2001). As a result, “an insurer’s duty to defend is broader than its duty to indemnify.” Transcontinental Ins. Co. v. Caliber One Indemnity Co., 367 F.Supp.2d 994, 1000 (E.D.Va.2005). (iv) The party seeking coverage under an omnibus clause bears the ulti mate burden of proving by a preponderance of the evidence that it is entitled to coverage. See Hartford Fire Ins. Co. v. Davis, 246 Va. 495, 498, 436 S.E.2d 429, 431 (1993). (v) Even so, the ordinary canons of insurance policy construction nonetheless operate. See Town Crier, Inc. v. Hume, 721 F.Supp. 99, 101 (E.D.Va.1989). Thus, because the insurer is typically the drafter of the policy, ambiguities in the policy language are construed against the insurer and in favor of the policy holder. See Id. (vi) But where policy language is unambiguous, it must be construed consistent with its plain and ordinary meaning. Given these principles, it follows that if Earth Tech’s negligent actions, as alleged in the Underlying Lawsuit complaint, could potentially fall within the risk covered by the Auto Policy, then, pursuant to the Exclusive Pleading Rule and the Potentiality Rule, U.S. Fire has a duty to defend. See Brenner v. Lawyers Title Ins. Corp., 240 Va. 185, 189, 397 S.E.2d 100, 102" }, { "docid": "13753732", "title": "", "text": "1332(a). Summary judgment is appropriate “if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material faet and that the moving party is entitled to judgment as a matter of law.” Fed.R.Civ.P. 56(c); see also Celotex Corp. v. Catrett, 477 U.S. 317, 322, 106 S.Ct. 2548, 2552, 91 L.Ed.2d 265 (1986); Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248, 106 S.Ct. 2505, 2510, 91 L.Ed.2d 202 (1986). There is a genuine issue if the evidence is such that a reasonable jury could return a verdict in favor of the nonmoving party. Anderson, 477 U.S. at 248, 106 S.Ct. at 2510. The parties agree and it is clear from the pleadings that the law of Vermont governs this dispute. Under Vermont law, the duty to defend is broader than the duty to indemnify. Select Design, Ltd. v. Union Mut. Fire. Ins. Co., - Vt. -, 674 A.2d 798, 800 (1996). A duty to defend issue is decided by comparing the allegations of the underlying complaint to the terms of the policy. Id. There is a duty to defend if the policy “potentially” covers any of the underlying claims. Id., see also Garneau v. Curtis & Bedell, Inc., 158 Vt. 363, 610 A.2d 132, 134 (1992) (“The insurer has a duty to defend whenever it is clear that the claim against the insured might be of the type covered by the policy.”). There is no duty to defend if there is “no possibility” that the insurer might be obligated to indemnify. City of Burlington v. National Union Fire Ins. Co., 163 Vt. 124, 655 A.2d 719, 721 (1994); see also Woodstock Resort Corp. v. Scottsdale Ins. Co., 927 F.Supp. 149, 153 (D.Vt.1996) (“Only if there is no possible factual or legal basis on which the insurer might be obligated to indemnify will there be no duty to defend.”). An insurance policy must be interpreted according to its terms and the evident intent of the parties as expressed in those terms. Select Design, 674 A.2d" } ]

[ { "docid": "23076880", "title": "", "text": "this fact did not require a finding that Simmons was prejudiced by that slight delay. This ease does not approach the dimensions of Taylor v. United States, 99 U.S.App. D.C. 183, 238 F.2d 259 (1956), where the trial took place 6 years, and the indictment 3 years, after the offense, and for 3 years the defendant, while serving another sentence, was not even told he was under indictment. Finally, there is the question of delay between arrest and trial. Strictly speaking, Simmons was not arrested until he was released from the state prison in December 1963. The one-month delay, caused in part by his request for a two-week continuance surely cannot be thought objectionable. Even taking the date of the detainer as the key point, we reach the same conclusion. That period was — at most — nine months. As we have noted, “[f]our factors are relevant to a consideration of whether denial of a speedy trial assumes due process [or Sixth Amendment] proportions: the length of delay, the reason for the delay, the prejudice to defendant, and waiver by the defendant. See Note, 57 Colum.L. Rev. 846, 861-63 (1957).” United States ex rel. Von Cseh v. Fay, supra, 313 F.2d at 623. Here, the delay was not unduly long. The reason was Simmons’ imprisonment in another state. Even assuming, though it is not apparent in the record, that New York would have made Simmons available for trial, compare Kyle v. United States, 211 F.2d 912 (9th Cir. 1954), we do not- think it unreasonable for the Government not to put to immediate trial a person having at the most 10 or 11 months remaining to be served on a sen tence in a state prison in another state. It is a different matter when the sentence is as long as 6 or 7 years. See Taylor v. United States, supra. In some cases the delay might be so substantial as to be prima facie prejudicial. United States v. Lustman, 258 F.2d 475, 478 (2d Cir.), cert. denied, 358 U.S. 880, 79 S.Ct. 118, 3 L.Ed.2d 109 (1958). Simmons claims" } ]

[ { "docid": "21970346", "title": "", "text": "the length and reason for the delay, its prejudice to the defendant, and any possible waiver of the right. United States v. Owens-Corning Fiberglas Corp., 271 F.Supp. 561 (N.D.Cal., 1967); Buatte v. United States, 350 F.2d 389, 394 (9th Cir., 1965), cert. denied, 385 U.S. 856, 87 S.Ct. 104, 17 L.Ed.2d 83 (1966). Yet, there are some decisions which seem to hold that the delay in trial may be so substantial by itself that it is either prima facie prejudicial, United States v. Simmons, 338 F.2d 804 (2d Cir., 1964), cert. denied, 380 U.S. 983, 85 S.Ct. 1352, 14 L.Ed.2d 276 (1965), or requires no showing of prejudice at all, United States v. Lustman, 258 F.2d 475 (2d Cir., 1958), cert. denied, 358 U.S. 880, 79 S.Ct. 118, 3 L.Ed.2d 109 (1958). Also see language in Reece v. United States, supra, which indicates that cases of per se unreasonableness may arise. Application of the appropriate standard will, at least initially, however, be a question for the state trial court, and therefore this court expresses no view on the controversy. . Despite a dictum in Frankel v. Woodrough, 7 F.2d 796 (8th Cir., 1925), that the right to a speedy trial can only be enforced through mandamus to compel a trial, the great majority of federal cases recognized that a defendant may secure a dismissal of charges for an unreasonable delay. Petition of Provoo, 17 F.R.D. 183 (D.Md., 1955), aff’d., 350 U.S. 857, 76 S.Ct. 101, 100 L.Ed. 761 (1955). There are, of course, other motions which might be available pursuant to right to speedy trial, in addition to a motion to dismiss. Annot., 58 A.L.R., 1510 (1929) ; Fowler v. Hunter, 164 F.2d 668 (10th Cir., 1947), cert. denied, 333 U.S. 868, 68 S.Ct. 785, 92 L.Ed. 1146 (1948)." }, { "docid": "22810898", "title": "", "text": "each instance he was ready to proceed with hearings on motions; that on the occasions when trial had been set, appellant was ready; that on no occasion was he consulted in advance of the decision. Not only the length of the post-indictment period but the large number of continuances sought by the government force us to scrutinize carefully the government’s conduct during this period and the effect of the delay on appellant. Appellant would have us forego such scrutiny and rule that the mere passage of time in this case — being so much longer than that held permissible in Fleming v. United States, 378 F.2d 502 (1st Cir. 1967) (11 months after indictment), and Carroll v. United States, 392 F.2d 185 (1st Cir. 1968) (10 months before arraignment) — was in itself enough to constitute a denial of his Sixth Amendment right to a speedy trial. No authorities are cited for this proposition except various state statutes and the normative goal proposed by the President’s Commission on Law Enforcement and Administration of Justice of four months from arrest to trial. The Challenge of Crime in a Free Society, p. 155, 1967. We reject any per se approach to this aspect of the Sixth Amendment. See United States v. Ewell, 383 U.S. 116, 120, 86 S.Ct. 773, 15 L.Ed.2d 627 (1966); United States v. Mancusi, 412 F.2d 88, 90 (2d Cir. 1969). In our review of the federal cases, we have found occasional references to a rule that after some period of time, prejudice to the defendant will be presumed and it becomes the government’s burden to show that no prejudice to the defendant arose from the delay. Pitts v. North Carolina, 395 F.2d 182, 184-185 (4th Cir. 1968); Smith v. United States, 418 F.2d 1120 (D.C.Cir. 1969); see United States v. Lustman, 258 F.2d 475, 477-478 (2d Cir. 1958), cert. denied, 358 U.S. 880, 79 S.Ct. 118, 3 L.Ed. 2d 109 (1958). Having read these cases, as well as United States v. Ewell, supra, Klopfer v. North Carolina, 386 U.S. 213, 87 S.Ct. 988, 18 L.Ed.2d 1 (1967), and" }, { "docid": "15001066", "title": "", "text": "a speedy trial involves the following factors: the period of the delay, the reason for such delay and whether defendant has acquiesced therein, whether the defendant has been prejudiced thereby, and whether he has waived his right to a speedy trial. United States v. Simmons, 338 F.2d 804, 807 (2d Cir. 1964), cert. denied, 380 U.S. 983, 85 S.Ct. 1352, 14 L.Ed.2d 276 (1965); United States ex rel. Von Cseh v. Fay, 313 F.2d 620, 623 (2d Cir. 1963). In considering the length of delay, it is necessary to distinguish three periods. First is that period of time from June 25, 1964 to October 14, 1964 — the period from the filing of the indictment to the time defendant was returned to Clinton Prison. The second period is from October 14, 1964 to April 23, 1965 when the Government applied for a writ of habeas corpus ad testificandum and defendant was brought back to the Southern District of New York from Clinton Prison. Finally, the period of time from April 23, 1965 to October 14, 1965, the date of trial, must be considered. After all of these individual periods are considered, it will then be determined whether the entire period from indictment to trial was unreasonable, although United States v. Lustman, 258 F.2d 475 (2d Cir.), cert. denied 358 U.S. 880, 79 S.Ct. 118, 3 L.Ed.2d 109 (1958), indicates that such further consideration is unnecessary. The initial period of delay cannot be considered unreasonable. All the delay incurred was directly caused by requests for adjournment by defendant in seeking to obtain counsel and by his retained counsel in seeking adjournments because of his illness. It is true that the adjournment to October 14, 1964 (from September 14) was by consent. However, the Assistant requested an adjournment only to October 5, whereupon defense counsel sought an extension to October 14, 1964. McIntyre “cannot exploit a delay which is attributable primarily to his own acts or to which he has consented.” United States v. Lustman, supra, 258 F.2d at 477; see United States v. Provoo, 17 F.R.D. 183 (D.Md.), aff’d per curiam" }, { "docid": "11224241", "title": "", "text": "process [or Sixth Amendment] proportions: the length of delay, the reason for the delay, the prejudice to defendant, and waiver by the defendant.’ ” United States v. Simmons, 338 F.2d 804, 807 (C.A. 2, 1964). As to the necessity for prejudice, it is true that in United States v. Lustman, 258 F.2d 475 (C.A. 2, 1958), cert. den. 358 U.S. 880, 79 S.Ct. 118, 3 L.Ed. 2d 109 (1958), the court said that “a showing of prejudice is not required when a criminal defendant is asserting a constitutional right under the Sixth Amendment.” However, that case seems to have been limited to a situation where the delay was “so substantial as to be prima facie prejudicial.” United States v. Simmons, 338 F.2d 804, 808 (C.A. 2, 1964). See also United States v. McIntyre, 271 F.Supp. 991 (S.D.N.Y. 1967), and cf. United States v. Ewell, 383 U.S. 116, 122, 86 S.Ct. 773, 15 L.Ed.2d 627 (1966). And a delay may be prejudicial when it is “purposeful or oppressive”, Pollard v. United States, 352 U.S. 354, 361, 77 S.Ct. 481, 1 L.Ed.2d 393 (1957), and “caused by the deliberate act of the government.” Petition of Provoo, 17 F.R.D. 183, 201 (D. Md.), aff’d per curiam, 350 U.S. 857, 76 S.Ct. 101, 100 L.Ed. 761 (1955). The delay here has been by no means so substantial that prejudice can be presumed. Relator was re-arrested on August 22, 1966. From the face of the petition, it appears that relator was listed for trial in February, 1967, but that he filed an application for a writ of habeas corpus in Bucks County as of No. 730, March Term, 1967. Any delay thereafter was occasioned by the pendency of that application and relator’s appeal to the Supreme Court of Pennsylvania, which on March 15,1968 affirmed the denial of the writ. Commonwealth ex rel. Lowry v. Case, 428 Pa. 598, 238 A.2d 767 (1968). Thus, from the petition itself, the maximum delay that can be attributed to the Commonwealth is six months, an insignificant period when it is considered that the alleged offense was committed seventeen years" }, { "docid": "8027636", "title": "", "text": "length of time elapsed is obviously an important factor in determining whether this right has been violated. Here the total delay was five years. For four years and three months — from September 1958 to December 1962 — the prosecution obtained continuances while it attempted to convict Manning. Appellant did not object to this delay until his motion to dismiss was filed on February 12,1963. We regard this motion to dismiss as a demand for a speedy trial, but it is clear that the time before the motion was made should not be counted as part of the period of delay in determining whether the right was violated. United States v. Lustman, 258 F.2d 475, 478 (2d Cir.), cert. denied, 358 U.S. 880, 79 S.Ct. 118, 3 L.Ed.2d 109 (1958); Kelley v. Kropp, 259 F.Supp. 417, 419 (E.D. Mich.1966). The “demand rule” provides that unless a defendant makes some attempt to resist postponement by the prosecution or demands immediate trial, he waives his Sixth Amendment right. United States v. Jones, 403 F.2d 498 (7th Cir. 1968); United States v. Perez, 398 F.2d 658 (7th Cir. 1968); United States v. Maxwell, 383 F.2d 437 (2d Cir.), cert. denied, Aiken v. United States, 389 U.S. 1043, 88 S.Ct. 786, 19 L.Ed.2d 835 (1967) (5-year delay between mistrial of defendant and retrial does not violate the right to speedy trial where no demand was made); Moser v. United States, 381 F.2d 363 (9th Cir.), cert. denied, 389 U.S. 1054, 88 S.Ct. 802, 19 L.Ed.2d 850 (1967); United States v. Hill, 310 F.2d 601 (4th Cir. 1962); Bruce v. United States, 351 F.2d 318 (5th Cir. 1965) (7-year delay did not violate right where no demand was made); Hastings v. McLeod, 261 F.2d 627 (10th Cir. 1968). The rationale behind the demand rule is that the right to a speedy trial is intended to serve “as a shield for the defendant’s protection but not as a sword for his escape.” United States v. Maxwell, 383 F.2d 437, 441 (2d Cir.), cert. denied, 389 U.S. 1043, 88 S.Ct. 786, 19 L.Ed.2d 835 (1967). An assumption" }, { "docid": "3221063", "title": "", "text": "necessary for the defendant to demonstate affirmatively how he has been prejudiced by an unreasonable delay. Of course, the likelihood of prejudice is undoubtedly an inevitable consideration in determining whether a particular delay is undue. See Note, 57 Colum.L.Rev. 846, 852 (1957); United States v. Lustman, 258 F.2d 475, 477-478 (2d Cir.), cert. denied, 358 U.S. 880, 79 S.Ct. 118, 3 L.Ed.2d 109 (1958). For the view that prejudice is the key to what remedy is appropriate for denial of a speedy trial, see Note, 64 Yale L.J. 1208 (1955). Prejudice is considered to be presumed from, or necessarily inherent in, a long delay. Petition of Provoo, 17 F.R.D. 183, 203 (D.Md.), affirmed per curiam, 350 U.S. 857, 76 S.Ct. 101, 100 L.Ed. 761 (1955). . Sec People v. Prosser, 309 N.Y. 353, 357-359, 130 N.E.2d 891, 894-895, 57 A.L.R.2d 295 (1955). Inaction by defendant is a factor to be taken into account in determining whether there lias been unreasonable delay, e. g., as indicating that the delay was tolerated for tactical purposes. . It should be observed that since appellant was indicted and convicted under statutes which carry a minimum mandatory sentence, the time spent in jail prior to sentencing is automatically credited toward service of his sentence. 18 U.S.C. § 3568. This assurance of credit may be a disincentive to press for an early trial, especially in the case of a defendant who has reason to believe that prompt trial will result in conviction, and that defense chances may be improved by delay and later unavailability of witnesses against him. . Smith v. United States, 118 U.S.App.D.C. 38, 41, 331 F.2d 784, 787 (1964) (en banc). . Rindgo v. United States, 120 U.S.App.D.C. 138, 344 F.2d 523 (1964), cert. denied, 380 U.S. 938, 85 S.Ct. 951, 13 L.Ed.2d 825 (1965); Mattoon v. Rhay, 313 F.2d 683 (9th Cir. 1963). . We are not advised why appellant’s counsel did not move for a severance before trial. He did ask for a severance on the morning of the trial. Over strenuous Government objection the District Judge granted the motion for" }, { "docid": "21970345", "title": "", "text": "1955). . Courts are split on whether actual prejudice must be shown or delay in trial is per se prejudicial. Courts have stated on numerous occasions that the mere pas-^-sage of time does not amount to the denial of the Sixth Amendment’s right to speedy trial. Taylor v. United States, 238 F.2d 259 (DCA, 1956). Whether the delay amounts to an unconstitutional deprivation depends upon circumstances, for ordinary expedition, not mere speed, is essential. United States v. Ewell, 383 U.S. 116, 86 S.Ct. 773, 15 L.Ed.2d 627 (1966) ; Reece v. United States, 337 F.2d 852 (5th Cir., 1964). Many courts specifically state that a delay must be prejudicial in the preparation of a defense to merit dismissal of charges. Mann v. United States, 113 U.S.App.D.C. 27, 304 F.2d 394 (1962), cert. denied, 371 U.S. 896, 83 S.Ct. 194, 9 L.Ed. 2d 127 (1962) ; United States v. Beard, 381 F.2d 329 (6th Cir., 1967). Several courts have enumerated factors to be used in deciding whether a denial of speedy trial has ensued, such as the length and reason for the delay, its prejudice to the defendant, and any possible waiver of the right. United States v. Owens-Corning Fiberglas Corp., 271 F.Supp. 561 (N.D.Cal., 1967); Buatte v. United States, 350 F.2d 389, 394 (9th Cir., 1965), cert. denied, 385 U.S. 856, 87 S.Ct. 104, 17 L.Ed.2d 83 (1966). Yet, there are some decisions which seem to hold that the delay in trial may be so substantial by itself that it is either prima facie prejudicial, United States v. Simmons, 338 F.2d 804 (2d Cir., 1964), cert. denied, 380 U.S. 983, 85 S.Ct. 1352, 14 L.Ed.2d 276 (1965), or requires no showing of prejudice at all, United States v. Lustman, 258 F.2d 475 (2d Cir., 1958), cert. denied, 358 U.S. 880, 79 S.Ct. 118, 3 L.Ed.2d 109 (1958). Also see language in Reece v. United States, supra, which indicates that cases of per se unreasonableness may arise. Application of the appropriate standard will, at least initially, however, be a question for the state trial court, and therefore this court expresses no" }, { "docid": "3221062", "title": "", "text": "witness. In the circumstances we find that this additional two month delay, even when taken as superimposed on the prior long delay, was neither so long nor of such character as to constitute a denial of appellant’s constitutional right to a speedy trial. Affirmed. . United States v. Ewell, 383 U.S. 116, 120, 86 S.Ct. 773, 776, 15 L.Ed.2d 627 (1966). . United States v. Ewell, supra note 1; Pollard v. United States, 352 U.S. 354, 361, 77 S.Ct. 481, 1 E.Ed.2d 393 (1957); Beavers v. Haubert, 198 U.S. 77, 87, 25 S.Ct. 573, 49 L.Ed. 950 (1905); Hanrahan v. United States, 121 U.S.App.D.C. 134, 137-139, 348 F.2d 363, 366-368 (1965); Smith v. United States, 118 U.S. App.D.C. 38, 41, 331 F.2d 784, 787 (1964) (en banc). See generally Note, 57 Colum.L.Rev. 846 (1957); Note, 108 U.Pa.L.Rev. 414 (1960). . The possibility of prejudice from the delay is an important factor in close cases. But the very assumption of the Sixth Amendment is that unreasonable delays are by their nature prejudicial. It is not generally necessary for the defendant to demonstate affirmatively how he has been prejudiced by an unreasonable delay. Of course, the likelihood of prejudice is undoubtedly an inevitable consideration in determining whether a particular delay is undue. See Note, 57 Colum.L.Rev. 846, 852 (1957); United States v. Lustman, 258 F.2d 475, 477-478 (2d Cir.), cert. denied, 358 U.S. 880, 79 S.Ct. 118, 3 L.Ed.2d 109 (1958). For the view that prejudice is the key to what remedy is appropriate for denial of a speedy trial, see Note, 64 Yale L.J. 1208 (1955). Prejudice is considered to be presumed from, or necessarily inherent in, a long delay. Petition of Provoo, 17 F.R.D. 183, 203 (D.Md.), affirmed per curiam, 350 U.S. 857, 76 S.Ct. 101, 100 L.Ed. 761 (1955). . Sec People v. Prosser, 309 N.Y. 353, 357-359, 130 N.E.2d 891, 894-895, 57 A.L.R.2d 295 (1955). Inaction by defendant is a factor to be taken into account in determining whether there lias been unreasonable delay, e. g., as indicating that the delay was tolerated for tactical purposes. . It" }, { "docid": "3552646", "title": "", "text": "of a more recent Supreme Court pronouncement : It is a simple matter to establish a so-called waiver in the form of failure to demand a prompt trial or to make an early motion to dismiss. If that alone could be decisive in every case, it would be at least a needlessly lavish use of judicial energies to bypass it and work through a detailed appraisal of all the other circumstances as grounds for decision. Cf., e. g., United States v. Simmons, 338 F.2d 804 (2d Cir.1964), cert. denied, 380 U.S. 983, 85 S.Ct. 1352, 14 L.Ed.2d 276 (1965); United States ex rel. Von Cseh v. Fay, 313 F.2d 620 (2d Cir. 1963). On deeper grounds of principle, it is difficult to accept that interests so “fundamental,” Klopfer v. State of North Carolina, 386 U.S. 213, 223, 226, 87 S.Ct. 988, 18 L.Ed.2d 1 (1967), and so pervasive as those served by the right to a speedy trial are enforceable by judicial sanctions only at the behest of defendants who take the relatively unlikely step of demanding an early trial. All those concerned with the administration of justice are commanded-to expedite criminal proceedings “as far as practicable.” Fed.R.Crim.P. 50. The reasons for the command are familiar and heavy with the weight of long history. See, e. g., Klopfer v. State of North Carolina, supra, at 223-224, 87 S.Ct. 988; United States v. Ewell, supra, 383 U.S. at 120, 86 S.Ct. 773. The length of the delay, the reason for the delay, and the prejudice to the defendant outweigh, by far, the defense counsel’s understandable reluctance to move to secure his client’s constitutional right to a speedy trial. Again in United States v. Mann, supra, 291 F.Supp. at 274-275, the Court said: It is commonly understood that the defendant will hesitate to disturb the hushed inaction by which dormant cases have been known to expire. See, e. g., United States v. Wai Lau, 329 F.2d 310, 312 (2d Cir.1964), cert. denied, 379 U.S. 856, 85 S.Ct. 108, 13 L. Ed.2d 59 (1965). However, this court holds that under the facts of" }, { "docid": "933251", "title": "", "text": "unsuccessfully moved under the Sixth Amendment to the United States Constitution and pursuant to Fed.R.Crim.P. 48(b) to dismiss the indictment on the grounds that he was denied his constitutional right to a speedy trial and that there was unnecessary delay in bringing him to trial. Despite the nearly six-year delay, my colleagues feel that under the authorities presently in effect in this Circuit they have no choice but to rule that because of appellant’s failure to demand a speedy trial before the initial motion to dismiss, he has waived his right thereto. United States v. Parrott, 425 F.2d 972, 976 (2d Cir. 1970); United States v. Aberson, 419 F.2d 820, 821 (2d Cir. 1970); United States v. Roberts, 408 F.2d 360, 361 (2d Cir. 1969) (per curiam); United States v. Maxwell, 383 F.2d 437, 441 (2d Cir. 1967), cert. denied, 389 U.S. 1043, 88 S.Ct. 786, 19 L.Ed.2d 835 (1968); United States v. Lustman, 258 F.2d 475, 478 (2d Cir.), cert. denied, 358 U.S. 880, 79 S.Ct. 118, 3 L.Ed.2d 109 (1958). Understandably, the Government has taken a similar position. As for the one-year time lapse between the initial motion to dismiss and the trial, the Government in substance claims that appellant acquiesced to numerous adjournments of the motion, and that other internal judicial matters were partially responsible for the remainder of the delay. I am unpersuaded by both the Government’s and my colleagues’ position. The delay was patently too long and no reasonable excuse has been offered therefor. Moreover, in view of the length of the delay (between indictment and trial), and the undisputed fact that two alleged defense witnesses died in 1968 prior to trial, the prejudice resulting from the delay is not only manifest but also may be presumed. United States v. Lustman, supra 258 F.2d at 478; United States v. Blanca Perez, 310 F.Supp. 550 (S.D.N.Y.1970); United States v. Chin, 306 F.Supp. 397 (S.D.N.Y.1969); United States v. Mann, 291 F. Supp. 268 (S.D.N.Y.1968). “Where delay is as long and as groundless as that revealed here, prejudice may fairly be presumed simply because everyone knows that memories" }, { "docid": "21852082", "title": "", "text": "plaintiff contradict this basic proposition. The indictment here follows the language of the statute, informs defendant of what he must be prepared to meet and contains all the essential elements of the offense. It sets out in detail information pertaining to each of the 12 bills of lading which are the subject of the indictment. The indictment as drawn more than adequately meets the standards laid down by the Constitution and the Federal Rules of Criminal Procedure. Therefore, the motion to dismiss the indictment for failure to state facts sufficient to constitute an offense against the United States is denied. Dell'Aira v. United States, supra; Gevinson v. United States, 358 F.2d 761, 763 (5th Cir. 1966); United States v. Meyer, 140 F.2d 652, 656 (2d Cir. 1944); United States v. Goldsmith, 108 F.2d 917, 920-921 (2d Cir.), cert. denied, 309 U.S. 678, 60 S.Ct. 715, 84 L.Ed. 1022 (1940). See also, United States v. Marchisio, 344 F.2d 653 (2d Cir. 1965). Speedy Trial Twenty-three months elapsed between defendants arrest and indictment. Another 13 passed between his indictment and the setting of a trial date. Defendant had counsel during these periods. He could have moved for a speedy trial when it became apparent that the delay between arrest and indictment or indictment and trial was going to be inordinate. Smith v. United States, 360 U.S. 1, 10, 79 S.Ct. 991, 3 L.Ed.2d 1041 (1958). Defendant did not do so. By his silence and inaction defendant waived his right to object to these delays. The motion to dismiss on this ground must therefore be denied. United States v. Lustman, 258 F.2d 475, 476-478 (2d Cir.) cert. denied, 358 U.S. 880, 79 S.Ct. 118, 3 L.Ed.2d 109 (1958); United States v. Sanchez, 361 F.2d 824, 825 (2d Cir. 1966); United States v. Aadal, 368 F.2d 962, 965 (2d Cir. 1966), cert. denied, 386 U.S. 970, 87 S.Ct. 1161, 18 L.Ed.2d 130 (March 21, 1967). Discovery of Documents Defendant has made sufficient showing upon the motion that certain documents in the possession of the government are material to the preparation of his defense. Under" }, { "docid": "5853551", "title": "", "text": "Nevertheless, there may be an occasion when a pre-arrest delay may deprive a defendant of a constitutional right if there is a “showing that the delay * * * was prejudicial or part of a deliberate, purposeful and oppressive design for delay.” United States v. Rivera, 346 F.2d 942, 943 (2d Cir. 1965), quoting from United States v. Wilson, 342 F.2d 782, 783 (2d Cir.), cert. denied, 382 U.S. 860, 86 S.Ct. 119, 15 L.Ed.2d 98 (1965). But just as the Sixth Amendment right to a speedy trial must be asserted or it will be deemed waived, see United States ex rel. Von Cseh v. Fay, 313 F.2d 620 (2d Cir. 1966), United States v. Lustman, 258 F.2d 475 (2d Cir.), cert. denied, 358 U.S. 880, 79 S.Ct. 118, 3 L.Ed.2d 109 (1958), so too is there an obligation “[o]nce a defendant has been arrested and charged * * * to give prompt notice of prejudice claimed as the result of pre-arrest delay; certainly the outside [time] limit for such a claim is at trial, if not sooner.” United States v. Sanchez, 361 F.2d 824, 825 (2d Cir. 1966). We have held that pre-arrest delay may not be raised for the first time on appeal, see United States v. Beigel, 370 F.2d 751 (2d Cir. 1967) (issue must be raised before all the parties rest at trial), United States v. Bennett, 364 F.2d 499 (2d Cir. 1966), United States v. Booker, 363 F.2d 856 (2d Cir. 1966), United States v. Smalls, 363 F.2d 417 (2d Cir. 1966), cert. denied, 385 U.S. 1027, 87 S.Ct. 755, 17 L.Ed.2d 675 (1967), and a fortiori it may not be raised for the first time by collateral attack, see D’Ercole v. United States, 361 F.2d 211 (2d Cir. 1966), cert. denied, 385 U.S. 995, 87 S.Ct. 610, 17 L.Ed.2d 454 (1966). The rationale for this rule is clear. If undue delay has occurred in the arrest of a defendant, he is obviously aware of this at the time of his trial. Indeed, in practice, indictments, informations or complaints set forth the date of the" }, { "docid": "22810899", "title": "", "text": "four months from arrest to trial. The Challenge of Crime in a Free Society, p. 155, 1967. We reject any per se approach to this aspect of the Sixth Amendment. See United States v. Ewell, 383 U.S. 116, 120, 86 S.Ct. 773, 15 L.Ed.2d 627 (1966); United States v. Mancusi, 412 F.2d 88, 90 (2d Cir. 1969). In our review of the federal cases, we have found occasional references to a rule that after some period of time, prejudice to the defendant will be presumed and it becomes the government’s burden to show that no prejudice to the defendant arose from the delay. Pitts v. North Carolina, 395 F.2d 182, 184-185 (4th Cir. 1968); Smith v. United States, 418 F.2d 1120 (D.C.Cir. 1969); see United States v. Lustman, 258 F.2d 475, 477-478 (2d Cir. 1958), cert. denied, 358 U.S. 880, 79 S.Ct. 118, 3 L.Ed. 2d 109 (1958). Having read these cases, as well as United States v. Ewell, supra, Klopfer v. North Carolina, 386 U.S. 213, 87 S.Ct. 988, 18 L.Ed.2d 1 (1967), and Smith v. Hooey, 393 U.S. 374, 89 S.Ct. 575, 21 L.Ed.2d 607 (1969), we are not persuaded that a presumption of prejudice arising from the mere passage of time is either prevailing doctrine or the most effective way fully to assure the Sixth Amendment’s speedy trial. Given the panoply of circumstances which can arise between crime and trial, we prefer to give close scrutiny to the three factors discussed in Ewell, supra, 383 U.S. at 122-123, 86 S.Ct. 773; length of delay, effect thereof on defendant before and at trial, and nature of the government’s conduct in prosecuting the case. Appellant’s major argument is that “the delay of almost 30 months was improperly motivated and was occasioned by purposeful and oppressive action on the part of the Government.” Clearly, such improperly motivated delay would constitute a denial of speedy trial. Pollard v. United States, 352 U.S. 354, 361-362, 77 S.Ct. 481, 1 L.Ed.2d 393 (1957), and cases cited therein; Ewell, supra 383 U.S. at 123, 86 S.Ct. 773; see Klopfer, supra. However, we do not" }, { "docid": "8027635", "title": "", "text": "the first term of court after the Sheriff recovered. Barker’s conviction was affirmed by the Kentucky Court of Appeals, despite his claim that he had been denied his right to a speedy trial. Barker v. Commonwealth, 385 S.W.2d 671 (Ky.1965). Appellant thereafter brought this action in the United States District Court for the Western District of Kentucky, which denied relief without an evidentiary hearing. Whether delay between indictment and trial violates the constitutional right to a speedy trial depends upon the circumstances of each case. Dickey v. Florida, 398 U.S. 30, 90 S.Ct. 1564, 26 L.Ed.2d 26 (1970); United States v. Ewell, 383 U.S. 116, 120-121, 86 S.Ct. 773, 15 L.Ed.2d 627 (1966); Beavers v. Haubert, 198 U.S. 77, 86-87, 25 S.Ct. 573, 49 L.Ed. 950 (1904). The mere lapse of time is not enough to constitute a denial of speedy trial. Von Feldt v. United States, 407 F.2d 95 (8th Cir. 1969); Carroll v. United States, 392 F.2d 185 (1st Cir. 1968); United States v. Beard, 381 F.2d 325 (6th Cir. 1967). However, the length of time elapsed is obviously an important factor in determining whether this right has been violated. Here the total delay was five years. For four years and three months — from September 1958 to December 1962 — the prosecution obtained continuances while it attempted to convict Manning. Appellant did not object to this delay until his motion to dismiss was filed on February 12,1963. We regard this motion to dismiss as a demand for a speedy trial, but it is clear that the time before the motion was made should not be counted as part of the period of delay in determining whether the right was violated. United States v. Lustman, 258 F.2d 475, 478 (2d Cir.), cert. denied, 358 U.S. 880, 79 S.Ct. 118, 3 L.Ed.2d 109 (1958); Kelley v. Kropp, 259 F.Supp. 417, 419 (E.D. Mich.1966). The “demand rule” provides that unless a defendant makes some attempt to resist postponement by the prosecution or demands immediate trial, he waives his Sixth Amendment right. United States v. Jones, 403 F.2d 498 (7th Cir." }, { "docid": "941060", "title": "", "text": "whether there has been a violation of sixth amendment rights. “It has long been the rule of this Circuit that the failure to demand a speedy trial constitutes a waiver of that right, (citing United States v. Lustman, 258 F.2d 475, 478 (2d Cir. 1958), cert. denied, 358 U.S. 880, 79 S.Ct. 118, 3 L.Ed.2d 109 (1958); United States v. Smalls, 438 F.2d 711, 714 (2d Cir. 1971), cert. denied, 403 U.S. 933, 91 S.Ct. 2261, 29 L.Ed.2d 712 (1971)); cf. Dickey v. Florida, 398 U.S. 30, 36, 90 S.Ct. 1564, 26 L.Ed.2d 26 (1970). While Rule 8 of this court, concerning the prompt disposition of criminal cases, dispenses with the need for demand, waiver may still be considered as a relevant factor in deciding whether or not the constitutional right to a speedy trial has been violated.” United States v. Singleton, 460 F.2d 1148, at 1151 (2d Cir. 1972), See also Barker v. Wingo, supra. Here the appellant moved to dismiss the indictment for delay in prosecution on June 15, 1970. Considering that motion as a demand for a speedy trial, we conclude that the 9-month delay between that demand and the commencement of the trial in March, 1971, is not of sixth amendment proportions, When we consider that a substantial part of this 9-month period was taken up with the trial court’s consideration of a motion by appellant to dismiss count 18 for factual insufficiency. Cf. United States ex rel. Schaedel v. Follette, 447 F.2d 1297, 1301 (2d Cir. 1971). Using the prescribed balancing test, Barker v. Wingo, supra, while the length of the delay was substantial here, as in United States v. Stein, supra, the case involved complex securities transactions and extensive pretrial motions and procedures; there has been no substantial showing of prejudice; there were no “purposeful or oppressive” delays on the part of the Government; and there was only a rather belated effort on the part of the defendant to bring the case to trial. We conclude that the defendant was not denied his sixth amendment rights. Vagueness The appellant’s next contention is that §" }, { "docid": "854688", "title": "", "text": "Massiah case. After the Supreme Court reversed in 1964, Massiah v. United States, 377 U.S. 201, 84 S.Ct. 1199, 12 L.Ed.2d 246 (1964), and Judge Weinfeld denied Massiah’s motion to dismiss for want of prosecution in February 1966, Massiah pleaded guilty and was sentenced in May 1966. One month later, the government notified petitioners that it intended to proceed to trial in the near future. Maxwell and Purry moved to dismiss the indictment on the ground of delay. Judge Herlands denied the motion without opinion in June 1966 and it was not renewed at trial. In October 1966 petitioners were found guilty in a trial before Judge Tenney and a jury. Petitioners raised the speedy-trial issue on direct appeal; and we held, citing United States v. Lustman, 258 F.2d 475 (2d Cir.), cert. denied, 358 U.S. 880, 79 S.Ct. 118, 3 L.Ed.2d 109 (1958), that since none of the petitioners had ever demanded a speedy trial, each had waived his Sixth Amendment right. Maxwell v. United States, 383 F.2d 437, 441 (2d Cir. 1967). The Supreme Court denied certiorari, 389 U.S. 1057, 88 S.Ct. 809, 19 L.Ed.2d 856 (1967). On August 10, 1970 petitioners moved under 28 U.S.C. § 2255 for vacation of sentence on the ground of delay, claiming that the Supreme Court’s decision in Dickey v. Florida, 398 U.S. 30, 90 S.Ct. 1564, 26 L.Ed.2d 26 (1970), raised serious doubts as to the validity of our demand rule elucidated in Lustman. Judge Tenney was sympathetic but felt that it would be an abdication of * * * judicial responsibility to attempt reversal of appellate authority on an identical issue, by giving retroactive application to recent dicta set forth by the Supreme Court. We affirm. Having passed upon petitioners’ claim before, on the appeal from their convictions which we affirmed in 1967, we see no reason to decide the question again. Moreover, in several recent cases in this Circuit, decided after the Supreme Court’s decision in Dickey, we have approved the Lustman rule. See United States v. Fitzpatrick, 437 F.2d 19, 27 (2d Cir. 1970); United States v. Haggett," }, { "docid": "21970344", "title": "", "text": "seek to represent may have detainers lodged against them by states not represented in this proceeding, who would therefore have no notice of this order. They obviously could not be expected to make a diligent, good-faith effort to bring their detainers to trial. Therefore a class action is inappropriate and the relief afforded plaintiffs shall be purely personal. A class action is not necessary to the effectuation of plaintiffs’ rights. The state defendants’ motions to dismiss and the Government’s motion to dismiss or grant summary judgment are denied. . “A detainer may be defined as a warrant filed against a person already in custody with the purpose of insuring that, after the prisoner has completed his present term, he will be available to the authority which has placed the detainer. Wardens of institutions holding men who have detainers on them invariably recognize these warrants and notify the authorities placing them of the impending release of the prisoner.” Handbook on Interstate Crime Control, Ch. V, quoted in United States v. Candelaria, 131 F.Supp. 797, 805 (S.D.Cal., 1955). . Courts are split on whether actual prejudice must be shown or delay in trial is per se prejudicial. Courts have stated on numerous occasions that the mere pas-^-sage of time does not amount to the denial of the Sixth Amendment’s right to speedy trial. Taylor v. United States, 238 F.2d 259 (DCA, 1956). Whether the delay amounts to an unconstitutional deprivation depends upon circumstances, for ordinary expedition, not mere speed, is essential. United States v. Ewell, 383 U.S. 116, 86 S.Ct. 773, 15 L.Ed.2d 627 (1966) ; Reece v. United States, 337 F.2d 852 (5th Cir., 1964). Many courts specifically state that a delay must be prejudicial in the preparation of a defense to merit dismissal of charges. Mann v. United States, 113 U.S.App.D.C. 27, 304 F.2d 394 (1962), cert. denied, 371 U.S. 896, 83 S.Ct. 194, 9 L.Ed. 2d 127 (1962) ; United States v. Beard, 381 F.2d 329 (6th Cir., 1967). Several courts have enumerated factors to be used in deciding whether a denial of speedy trial has ensued, such as" }, { "docid": "5853550", "title": "", "text": "and certiorari was denied. 379 U.S. 924, 85 S.Ct. 281, 13 L.Ed.2d 337 (1964). Subsequently, Chapman’s motion for a new trial on the ground of newly discovered evidence was denied in the District Court. We denied leave to appeal in forma pawperis and refused assignment of counsel. Thereafter, appellant sought to vacate the judgment, pursuant to 28 U.S.C. § 2255, alleging that the government had knowingly used per jured testimony. This application was also denied. Finally, more than 3 years after his second conviction, Chapman claimed for the first time that he was denied a fair trial by virtue of the 14-month delay that transpired between his alleged sale of narcotics on August 1, 1960, and his arrest on September 27, 1961. This application, pursuant to 28 U.S.C. § 2255, for an order vacating his conviction was denied, and it is from that denial that Chapman now appeals. We note, initially, that there is no constitutional right to be arrested. Hoffa v. United States, 385 U.S. 293, 310, 87 S.Ct. 408, 17 L.Ed.2d 374 (1966). Nevertheless, there may be an occasion when a pre-arrest delay may deprive a defendant of a constitutional right if there is a “showing that the delay * * * was prejudicial or part of a deliberate, purposeful and oppressive design for delay.” United States v. Rivera, 346 F.2d 942, 943 (2d Cir. 1965), quoting from United States v. Wilson, 342 F.2d 782, 783 (2d Cir.), cert. denied, 382 U.S. 860, 86 S.Ct. 119, 15 L.Ed.2d 98 (1965). But just as the Sixth Amendment right to a speedy trial must be asserted or it will be deemed waived, see United States ex rel. Von Cseh v. Fay, 313 F.2d 620 (2d Cir. 1966), United States v. Lustman, 258 F.2d 475 (2d Cir.), cert. denied, 358 U.S. 880, 79 S.Ct. 118, 3 L.Ed.2d 109 (1958), so too is there an obligation “[o]nce a defendant has been arrested and charged * * * to give prompt notice of prejudice claimed as the result of pre-arrest delay; certainly the outside [time] limit for such a claim is at trial," }, { "docid": "11224240", "title": "", "text": "after providing him with counsel. * * * In any event, the 1931 indictment has not been invalidated. The granting of the federal writ of habeas corpus in the present circumstances does not preclude a new arraignment and trial, or the taking of proper steps to hold the defendant in custody or under bail pending trial. This may have been implicit in the judgment below. We now make it explicit. * * * ” Relator’s first ground for relief therefore is without merit. As to the alleged denial of speedy trial, the petition is both defective and, in my judgment, premature. The speedy trial provision of the Sixth Amendment applied only to federal courts until it was made applicable to the states by Klopfer v. State of North Carolina, 386 U.S. 213, 87 S.Ct. 988, 18 L.Ed. 2d. 1 (1967). We must, then, turn to federal decisions for guidance as to the ingredients of a speedy trial violation. Four factors “ ‘are relevant to a consideration of whether denial of a speedy trial assumes due process [or Sixth Amendment] proportions: the length of delay, the reason for the delay, the prejudice to defendant, and waiver by the defendant.’ ” United States v. Simmons, 338 F.2d 804, 807 (C.A. 2, 1964). As to the necessity for prejudice, it is true that in United States v. Lustman, 258 F.2d 475 (C.A. 2, 1958), cert. den. 358 U.S. 880, 79 S.Ct. 118, 3 L.Ed. 2d 109 (1958), the court said that “a showing of prejudice is not required when a criminal defendant is asserting a constitutional right under the Sixth Amendment.” However, that case seems to have been limited to a situation where the delay was “so substantial as to be prima facie prejudicial.” United States v. Simmons, 338 F.2d 804, 808 (C.A. 2, 1964). See also United States v. McIntyre, 271 F.Supp. 991 (S.D.N.Y. 1967), and cf. United States v. Ewell, 383 U.S. 116, 122, 86 S.Ct. 773, 15 L.Ed.2d 627 (1966). And a delay may be prejudicial when it is “purposeful or oppressive”, Pollard v. United States, 352 U.S. 354, 361," }, { "docid": "3552645", "title": "", "text": "overlooked. In cases where the delay between indictment and trial has turned from months to years, the accompaning anxiety becomes manifestly oppressive, especially where, as here, conviction carries a strong proba bility of a jail term. See United States v. Ewell, 383 U.S. 116, 120, 86 S.Ct. 773, 15 L.Ed.2d 627 (1966). The government insists that the defendant, who has been represented throughout by counsel, has waived his Sixth Amendment right to a speedy trial. United States v. Lustman, 258 F. 2d 475 (2d Cir.1958). But this is only one of the four factors to be considered by this court in deciding a motion to dismiss on Sixth Amendment grounds. United States v. Simmons, 338 F.2d 804, 806 (2d Cir.1964), cert. denied, 380 U.S. 983, 85 S.Ct. 1352, 14 L.Ed.2d 276 (1965); United States ex rel. Von Cseh v. Fay, 313 F.2d 620, 623 (2d Cir.1963); United States ex rel. Solomon v. Mancusi, supra. In United States v. Mann, supra, 291 F.S.upp. at 274, this Court (Frankel, J.) reviewed the waiver question in the light of a more recent Supreme Court pronouncement : It is a simple matter to establish a so-called waiver in the form of failure to demand a prompt trial or to make an early motion to dismiss. If that alone could be decisive in every case, it would be at least a needlessly lavish use of judicial energies to bypass it and work through a detailed appraisal of all the other circumstances as grounds for decision. Cf., e. g., United States v. Simmons, 338 F.2d 804 (2d Cir.1964), cert. denied, 380 U.S. 983, 85 S.Ct. 1352, 14 L.Ed.2d 276 (1965); United States ex rel. Von Cseh v. Fay, 313 F.2d 620 (2d Cir. 1963). On deeper grounds of principle, it is difficult to accept that interests so “fundamental,” Klopfer v. State of North Carolina, 386 U.S. 213, 223, 226, 87 S.Ct. 988, 18 L.Ed.2d 1 (1967), and so pervasive as those served by the right to a speedy trial are enforceable by judicial sanctions only at the behest of defendants who take the relatively unlikely step" } ]

[ { "docid": "22175502", "title": "", "text": "(2d Cir. 1954); and Annotation, 52 A.L.R.2d 1243. . See cases cited in note 9 supra. . See E. F. Hutton v. Brown, 305 F.Supp. 371, 378 (S.D.Tex.1969). . The United States District Court for the Eastern District of Pennsylvania has adopted by Rule 11 the ABA Code of Professional Responsibility as containing proper standards of professional conduct for the members of its bar. Other courts have reached the same conclusion. See Estates Theatres, Inc. v. Columbia Pictures Industries, Inc., supra; E. F. Hutton & Co. v. Brown, supra 305 F.Supp. at 377 n. 7, and cases cited therein. Canon 9 provides that a lawyer should avoid even the appearance of professional impropriety. The Ethical Considerations under that Canon provide, inter alia: “ . . .A lawyer should promote public confidence in our system and in the legal profession. “Public confidence in law and lawyers may be eroded by irresponsible or improper conduct of a lawyer. On occasion, ethical conduct of a lawyer may appear to laymen to be unethical. “Every lawyer owes a solemn duty to strive to avoid not only professional impropriety but also the appearance of impropriety.” . In this case, the court properly considered such factors as (333 F.Supp. at 1050 and 1055): “Different and possibly conflicting policies of the law become apparent. On one hand SEC regulations are designed to protect shareholders of a corporation from wrongdoing and bad faith dealing with the ‘insiders’ of the corporation. Mr. Richardson is a shareholder and is, along with all other shareholders, entitled to that protection. On the other hand, the law seeks to protect attorney-client confidences. If the facts presented compel the conclusion that the attorney-client privilege exists as to these defendants, then the divergent policies of the law must be resolved, and, if possible, harmoniously reconciled. “We come face to face now with the conflicting policies of the law, i. e., to protect shareholders and to protect the confidences of former clients. No amount of legal reasoning can completely harmonize this conflict. There are substantial arguments on both sides; it appears to be a question of" } ]

[ { "docid": "22244829", "title": "", "text": "obtain the full advantage of our legal system. Requiring attorneys to abstain from representation involving potential disclosure of former clients’ confidences also frees lawyers from the difficult task of erecting Chinese walls in their own minds between what is confidential and what is not, and forwards “the public’s interest in maintaining the highest standards of professional conduct and the scrupulous administration of justice.” Hull v. Celanese Corp., supra, 513 F.2d at 569. In the circumstances of this rather unique case appellant’s interest must yield in the balance and doubts be resolved in favor of disqualification for the adequate protection of these other interests under . Canons 4 and 9 of the Code. Judgment affirmed. . See International Electronics Corp. v. Flanzer, 527 F.2d 1288 (2d Cir. 1975); Silver Chrysler Plymouth, Inc. v. Chrysler Motors Corp., 518 F.2d 751 (2d Cir. 1975); Hull v. Celanese Corp., 513 F.2d 568 (2d Cir. 1975); Meyerhofer v. Empire Fire & Marine Ins. Co., 497 F.2d 1190 (2d Cir.), cert. denied, 419 U.S. 998, 95 S.Ct. 314 (1974); Emle Industries, Inc. v. Patentex, Inc., 478 F.2d 562 (2d Cir. 1973). Orders of disqualification were held appealable in Silver Chrysler Plymouth, Inc. v. Chrysler Motors Corp., 496 F.2d 800 (2d Cir. 1974) (en banc). . Canon 4 states the axiom that “[a] lawyer should preserve the confidences and secrets of a client.” Canon 9 provides that “[a] lawyer should avoid even the appearance of professional impropriety.” ABA Code of Professional Responsibility (1975). The Code is recognized by both federal and state courts in this circuit as prescribing appropriate guidelines for the professional conduct of the bar. Cinema 5, Ltd. v. Cinerama, Inc., 528 F.2d 1384, 1386 (2d Cir. 1976); Hull v. Celanese Corp., 513 F.2d 568, 571 n. 12 (2d Cir. 1975). . The district court referred specifically to the language of Ethical Consideration (EC) 4-5 under Canon 4 which states in part: Care should be exercised by a lawyer to prevent the disclosure of the confidences and secrets of one client to another, and no employment should be accepted that might require such disclosure. ." }, { "docid": "18863174", "title": "", "text": "inapplicable to the facts of the case at hand, thus furnishing no basis for Cahill’s disqualification as counsel for Ethyl. Once the smoke has cleared, it is patently obvious to the court that no attorney-client relationship existed between R-T Leasing and Ca-hill to permit R-T Leasing to assume the position of an aggrieved former client in the present action, gravely concerned with the possibility of Cahill’s reliance on or disclosure of confidential communications shared in the course of the prior attorney-client relationship, a possibility to be foreclosed only by Cahill’s disqualification. The motion to disqualify is hereby denied. Canon 4 Canon 4 of the ABA Code of Professional Responsibility provides that “[A] lawyer should preserve the confidences and secrets of a client.” Canon 4, applying, of course, to the relationship between an attorney and a present client, has been construed by the courts to prevent disclosures of confidential communications of former clients, particularly if the attorney is so inclined to undertake representation of a party in an action adverse to the interests of a former client, who is also a party in the same action. Emle Industries, Inc. v. Patentee, Inc., 478 F.2d 562 (2d Cir. 1973), following T. C. Theatre Corp. v. Warner Bros. Pictures, Inc., 113 F.Supp. 265 (S.D.N.Y.1953). In other words, an attorney may be disqualified from appearing on behalf of an adversary to a former client in subsequent legal proceedings. . Respectful of the sanctity of an attorney’s duty of loyalty to a client for all matters and confidences disclosed during the course of their professional relationship, a relationship that carries with it a presumption of confidentiality, the T. C. Theatre court first formulated a test for disqualification of attorneys who violate the directives of Canon 4 (formerly Canon 6). He [the attorney] is enjoined for all time, except as he may be released by law, from disclosing matters revealed to him by reason of the confidential relationship. Related to this principle is the rule that where any substantial relationship can be shown between the subject matter of former representation and that of subsequent adverse representation," }, { "docid": "23429122", "title": "", "text": "us to hold that any of these findings are clearly erroneous. On the contrary, they appear to be fully supported by the record. Judge Manos then entered the following conclusions of law: Continental claims that Winston & Strawn’s duty to protect the interest of Interstate and Ward conflict with their duty to represent Laub in the present suit. Continental argues that this suit would have joined Interstate, Ward and Continental as defendants if attorneys other than Winston & Strawn had been retained to represent Laub. Continental contends that Winston & Strawn’s continued representation of Laub in this suit violates Canon 5 of the Code of Professional Responsibility and therefore Winston & Strawn should be disqualified. Canon Five and pertinent Ethical Considerations promulgated thereunder read in part: A lawyer should exercise independent professional judgment on behalf of a client. Canon Five. ' If a lawyer is requested to undertake or to continue representation of multiple clients having potentially differing interests, he must weigh carefully the possibility that his judgment may be impaired or his loyalty divided if he accepts or continues the employment. He should resolve all doubts against the propriety of this representation. Ethical Consideration 5-15. It has been repeatedly held that an attorney may not represent a client in litigation against a former client if the subject matter of the litigation is “substantially related” to work he or she did for the former client. See e. g. Emle Industries, Inc. v. Patentex, Inc., 478 F.2d 562, 565 (2nd Cir. 1968); Wilson P. Abraham Construction Corp. v. Armco Steel Corp., 559 F.2d 250, 252 (5th Cir. 1977); T. C. & Theatre Corp. v. Warner Bros. Pictures, 113 F.Supp. 265, 268 (S.D.N.Y. 1953). If the representation is against an existing client, not just a former one, the balance shifts even more significantly toward disqualification. See Cinema 5, Ltd. v. Cinerama, 528 F.2d 1384, 1386 (2nd Cir. 1976). Continental claims that Winston & Strawn in representing Laub, represents a party whose interests may be adverse to pre-existing clients, Interstate and Ward. The court agrees. However this fact, in and of itself, does" }, { "docid": "6554555", "title": "", "text": "Cir. 1975), the Court held that: It is the possibility that confidences might be breached and not the fact of their disclosure or use that dictates disqualification once a substantial relationship between two representations has been established. (Emphasis added) Defendant also argues that in any event all information obtained from General Electric by Cantor has been published or is available from non-confidential sources. This was treated in Emle Industries, Inc., v. Patentex, Inc., 478 F.2d 562, 572-573 (2nd Cir. 1973), and the Court held that this argument was of no avail. The Court stated: . the client’s privilege in confidential information disclosed to his attorney “is not nullified by the fact that the circumstances to be disclosed are part of a public record, or that there are other available sources for such information, or by the fact that the lawyer received the same information from other sources.” (Quoting H. Drinker, Legal Ethics 135 (1953)). From these cases the following principles emerge: 1. If there is a substantial relationship or a sufficiently close relationship between the matters on which the attorney worked in his prior retainer and the matters in which he has worked on his subsequent retainer, this is all that the former client need show. 2. This substantial relationship or sufficiently close relationship test is compelled by the nature of the relationship of attorney and client. 3. All confidences and information of the client are to be protected. 4. The ethical considerations which support this concept require that a lawyer should preserve the confidences and secrets of his client and that a lawyer should always avoid even the appearance of professional impropriety in so doing. 5. Because of these considerations a lawyer should be disqualified in a representation in which he may have had access or opportunity to obtain confidential material, and the client need show no more than this in order to be protected. The local rules of this Court adopt the Code of Professional Responsibility and these Canons by reference. These considerations and the Canons apply fully to attorneys practicing in this court. Finally this Court notes" }, { "docid": "18831376", "title": "", "text": "Georges by Spencer, Fane, Britt and Browne and the issues in the present lawsuit. Canon 4 provides: “A lawyer should preserve the confidences and secrets of a client.” The lawyer’s duty outlasts his employment, and courts have construed Canon 4 to prohibit disclosures of confidential communications of former clients. Emle Industries Inc. v. Patentex, Inc., 478 F.2d 562 (2nd Cir. 1973). The principle of protection of a former client’s confidences may prevent an attorney from appearing on behalf of an adversary to that former client in subsequent legal proceedings. Realco Services, Inc. v. Holt, 479 F.Supp. 867, 871 (E.D.Pa. 1979). Canon 4 protects only clients against disclosure of confidential information. R-T Leasing Corp. v. Ethyl Corp., 484 F.Supp. 950, 953 (S.D.N.Y.1979). Thus, Fram claims that IPD, which was never represented by Spencer, Fane, Britt and Browne, has no basis for objecting to the law firm’s representation of Fram in this action. However, the Court need not decide whether IPD has standing, for we assume that the Georges are joining in the motion; it appears to the Court that the same counsel represents both IPD and the Georges. Accordingly, the Court will treat the motion as though it were submitted by the Georges. If disqualification is required, it must be on the basis of Spencer, Fane, Britt and Browne’s prior representation of the Georges and the Georges’ control of IPD, or their personal involvement in the present lawsuit. The test to be applied in deciding a motion to disqualify is two-fold: (1) a previous attorney/client relationship between the attorney and the adverse party must be shown; and (2) a substantial relationship between the prior representation and the pending suit must be shown. R-T Leasing Corp. v. Ethyl Corp., 484 F.Supp. at 952. It is conceded that an attorney/client relationship existed at one time between Spencer, Fane, Britt and Browne and the Georges. Canon 4 does not apply in every case in which a lawyer represents an adversary of a former client. If the matters in the present representation are totally unrelated to the former representation, no ethical problem exists. Cannon v." }, { "docid": "23494482", "title": "", "text": "adverse information had not yet been used and would not be used did not obscure the attorney’s obligation to refuse the proffered employment. Id. at 925. The scope of the substantial relationship test was further defined in Fleischer v. A.A.P., Inc., 163 F.Supp. 548 (S.D.N.Y.1958), appeal dismissed, 264 F.2d 515 (2d Cir. 1959), cert. denied, 359 U.S. 1002, 85 S.Ct. 68, 3 L.Ed.2d 1030 (1959). In denying a motion to disqualify because no substantial, relationship was shown, the court held, [o]nly when it is clearly discernible that the issues involved in a current case do not relate to matters in which the attorney formerly represented the adverse party will the attorney’s present representation be treatéd as measuring up to the standards of legal ethics. 163 F.Supp. 553. And as a necessary corollary to this statement the court added that although the burden of establishing the substantial relationship is on the party seeking to disqualify the opposing attorney, a close case should be resolved in the mov-ant’s favor. Id. at 553; United States v. Standard Oil Company, 136 F.Supp. 345, 364 (S.D.N.Y.1955). This position is entirely consistent with the previously discussed aim of Canon 9 to avoid the appearance of impropriety. The most recent application of the principles behind Canon 4 is furnished by Emile Industries, Inc. v. Patentex, Inc., 478 F.2d 562 (2d Cir. 1973). Canon 4 implicitly incorporates the admonition, embodied in old Canon 6, that “The [lawyer’s] obligation to represent the client with undivided fidelity and not to divulge his secrets or confidences forbids also the subsequent acceptance of retainers or employment from others in matters adversely affecting any interest of the client with respect to which confidence has been reposed.” Without strict enforcement of such high ethical standards, a client would hardly be inclined to discuss his problems freely and in depth with his lawyer, for he would justifiably fear that information he reveals to his lawyer on one day may be used against him on the next. A lawyer’s good faith, although essential in all his professional activity, is, nevertheless, an inadequate safeguard when standing alone." }, { "docid": "5547407", "title": "", "text": "is rooted in notions of fundamental fairness; allowing an attorney to represent a client in a situation where he may use information obtained in the course of former representation of the client’s adversary gives the client an “unfair advantage.” Id. at 875-76; see Emle Industries, Inc. v. Patentex, Inc., 478 F.2d 562, 571 (2d Cir. 1973); Note, Attorney’s Conflict of Interests: Representation of Interest Adverse to That of Former Client, 55 B.U.L.Rev. 61, 64 (1975) (purpose of Canon 4 is to ensure “fundamental fairness”). The applicability of this standard of conduct to former Government attorneys is clear, see General Motors Corp. v. City of New York, 501 F.2d 639, 648-49 (2d Cir. 1974); Empire Linotype School, Inc. v. United States, 143 F.Supp. 627, 631-33 (S.D.N.Y.1956); United States v. Standard Oil Co., 136 F.Supp. 345 (S.D.N.Y.1955), and is supported by sound policy considerations. Allowing an attorney to represent a client in a matter with which he became uniquely familiar during his public employment may encourage Government attorneys to conduct their offices with an eye toward future private employment. Handelman v. Weiss, 368 F.Supp. 258, 264 (S.D.N.Y.1973); ABA Comm, on Professional Ethics, Opinions, No. 342 at 9 (1975); New York State Bar Association Comm, on Professional Ethics, Opinions, No. 506 at 2 (1979). Allowing such representation also unduly favors those litigants whose attorneys were able to gather valuable pertinent information while on the Government payroll. Allied Realty, Inc. v. Exchange National Bank, 283 F.Supp. 464, 467 (D.Minn.1968), aff’d, 408 F.2d 1099 (8th Cir.), cert. denied, 396 U.S. 823, 90 S.Ct. 64, 24 L.Ed.2d 73 (1969). Finally, as in all Canon 4 cases, the danger exists that the former Government attorney may breach a confidence by divulging or unfairly utilizing information obtained in the course of his former employment. Emle Industries, Inc. v. Patentex, Inc., supra, 478 F.2d at 571. These considerations are pertinent not only where the issues involved in the lawyer’s former and present representation are the same, but also where, as here, the privileged information obtained in the course of the former representation may be used to impeach or discredit" }, { "docid": "22966344", "title": "", "text": "been shown. Disciplinary Rule 5-105(c) provides that “[a] lawyer may represent multiple clients if it is obvious that he can adequately represent the interest of each and if each consents to the representation after full disclosure of the possible effect of such representation on the exercise of his independent professional judgment on behalf of each.” When a potential or actual conflict of interest situation arises, it is the court’s duty to ensure that the attorney’s client, so involved, is fully aware of the na.ture of the conflict and understands the potential threat to the protection of his interests. Once the court is satisfied, however, that such a client knowingly and intelligently wishes to proceed with joint representation, the court’s responsibility is met, and it is without power unilaterally to obstruct the choice of counsel. See Abraham v. United States, 549 F.2d 236 (2d Cir. 1976); United States v. Armedo-Sarmiento, 524 F.2d 591 (2d Cir. 1975). In so holding, this court does not shirk its duty of requiring the maintenance of “the highest ethical standards of professional responsibility.” Emle Industries, Inc. v. Patentex, Inc., 478 F.2d 562 (2d Cir. 1973). In Ernie Industries, Inc. v. Patentex, supra; NCK Org’n v. Bregman, supra; and The Fund of Funds, Ltd. v. Arthur Andersen & Co., supra, attorneys had run afoul, of the strictures of Canon 4 by placing themselves in a position in which the confidentiality of their relationship with former clients was threatened. In those cases the interests in jeopardy were those of the former clients who brought the motions to disqualify because the attorneys had changed sides from the former clients to the current, adverse clients; and, it was proper for the court to adjudicate the conflict in order to avoid even the appearance of impropriety on the part of counsel. Canon 9; see also, Hull v. Celanese Corp., supra; cf. Allegaert v. Perot, supra. In this case, however, the court, in accordance with Canon 5, is ostensibly concerned with appellant’s interest in sound legal advice. A conflict between appellant and his associates is not inherent in their joint representation by" }, { "docid": "2761070", "title": "", "text": "India v. Cook Indus., Inc., 569 F.2d 737, 739 (2d Cir.1978)); Twin Laboratories, Inc. v. Weider Health & Fitness, 1989 WL 49368, at *4, 1989 U.S.Dist. LEXIS 4693, at *11 (S.D.N.Y. May 1989). Generally, an attorney may not knowingly reveal a client confidence if to do so would disadvantage that client. See Fund of Funds, Ltd. v. Arthur Andersen & Co., 567 F.2d 225, 227 n. 2 (2d Cir.1977); see also Model Code of Professional Responsibility EC 4-5, 4-6 (1980) (“A lawyer should not use information acquired in the course of the representation of a client to the disadvantage of the client...“The obligation of a lawyer to preserve the confidences and secrets of his client continues after the termination of his employment.”). Therefore, the Model Rules of Professional Conduct prescribe that “A lawyer who has formerly represented a client in a matter shall not thereafter represent another person in the same or a substantially related matter in which that person’s interests are materially adverse to the interests of the former client....” Model Rules of Professional Conduct Rule 1.9(a) (1983). Among other reasons, this model rule was designed to “give the court confidence that a lawyer will not use unfairly the secrets gained in prior employment.” Weider, 1989 WL 49368, at *2, 1989 U.S.Dist. LEXIS 4693, at *7. This Circuit has reviewed attorney disqualification motions under Canon 4 of the Model Code of Professional Responsibility. See, e.g., Cheng v. GAF Corp., 631 F.2d 1052, 1059 (2d Cir.1980), vacated on other grounds and remanded, 450 U.S. 903, 101 S.Ct. 1338, 67 L.Ed.2d 327 (1981)); NCK Org. Ltd. v. Bregman, 542 F.2d 128, 129 n. 2 (2d Cir.1976). Under Canon 4, courts apply a three-part test to determine whether an attorney should be disqualified: (1) is the moving party a former client of the adverse party's counsel; (2) is there a substantial re'ationship between the subject matter of the counsel's prior representation of the moving party and the issues in the present suit; and (3) did the attorney whose disqualification is sought have access to, or was he likely to have had access" }, { "docid": "2252082", "title": "", "text": "4-6 (1980) (“A lawyer should not use information acquired in the course of the representation of a client to the disadvantage of the client...“The obligation of a lawyer to preserve the confidences and secrets of his client continues after the termination of his employment.”). Therefore, the Model Rules of Professional Conduct prescribe that “A lawyer who has formerly represented a client in a matter shall not thereafter represent another person in the same or a substantially related matter in which that person’s interests are materially adverse to the interests of the former client....” See Model Rules of Professional Conduct 1.9(a) (1983). Among other reasons, this model rule was designed to “give the court confidence that a lawyer will not use unfairly the secrets gained in prior employment.” Twin Laboratories, 1989 WL 49368, at *2, 1989 U.S. Dist. LEXIS 4693, at *7. This Circuit has reviewed attorney disqualification motions under Canon 4 of the Model Code of Professional Responsibility. See, e.g., Cheng, 631 F.2d at 1059; NCK Org. Ltd. v. Bregman, 542 F.2d 128, 129 n. 2 (2d Cir.1976). Under Canon 4, courts apply a three-part test to determine whether an attorney should be disqualified: (1) is the moving party a former client of the adverse party’s counsel; (2) is there a substantial relationship between the subject matter of the counsel’s prior representation of the moving party and the issues in the present suit; and (3) did the attorney whose disqualification is sought have access to, or was he likely to have had access to, relevant privileged information in the course of his prior representation of the client? See Evans, 715 F.2d at 791 (citing Cheng, 631 F.2d at 1059); Emle Industries, Inc. v. Patentex, Inc., 478 F.2d 562, 570-71 (2d Cir.1973); Keoseian v. Von Kaulbach, 707 F.Supp. 150, 151 (S.D.N.Y.1989); T.C. Theatre Corp. v. Warner Bros. Pictures, Inc., 113 F.Supp. 265, 268 (S.D.N.Y.1953) (Weinfeld, J.). When applying this test, courts must look with “painstaking” care at the facts, United States v. Standard Oil Co., 136 F.Supp. 345, 367 (S.D.N.Y.1955), maintaining a balance between a party’s right to preferred counsel and" }, { "docid": "12351277", "title": "", "text": "is at least potentially in a position to use privileged information concerning the other side through prior representation, for example, in violation of Canons 4 and 9, thus giving his present client an unfair advantage.... Weighing the needs of efficient judicial administration against the potential advantage of immediate preventive measures, we believe that unless an attorney’s conduct tends to “taint the underlying trial,” by disturbing the balance of the presentations in one of the two ways indicated above, courts should be quite hesitant to disqualify an attorney. Board of Educ. v. Nyquist, 590 F.2d at 1246 (footnotes and citations omitted). Disqualification under Canon 4 Canon 4 of the ABA Code of Professional Responsibility provides that “[a] lawyer should preserve the confidences and secrets of a client.” Disqualification may be appropriate if: [1] the moving party is a former client of the adverse party’s counsel; (2) there is substantial relationship between the subject matter of the counsel's prior representation of the moving party and the issues in the present lawsuit; and (3) the attorney whose disqualification is sought had access to, or was likely to have access to, relevant privileged information in the course of his prior representation of the client. SMI Indus. Canada Ltd. v. Caelter Indus., Inc., 586 F.Supp. 808, 815, 223 USPQ 742, 746 (N.D.N.Y.1984) (citing Evans v. Artek Sys. Corp., 715 F.2d 788, 791 (2d Cir.1983); Cheng, 631 F.2d at 1055-56; Code of Professional Responsibility, Canon 4, Disciplinary Rule (DR) 4-101(B) (1980)); see also Emle Indus., Inc. v. Patentex, Inc., 478 F.2d 562, 570 (2d Cir.1973). Thus, if no attorney-client relationship exists, no potential violation of Canon 4 can occur. SMI Indus., 586 F.Supp. at 816, 223 USPQ at 747. Medtronic claimed “former client” status as the assignee of AO. The district court correctly found that Medtronic was never a client of either Rackman or Nealon because the assignment of a patent does not transfer an attorney-client relationship. See SMI Indus., 586 F.Supp. at 815, 223 USPQ at 747 (assignee of assets does not stand in shoes of its assignor for purposes of Canon 4) (citing In" }, { "docid": "22197446", "title": "", "text": "legitimate resource in the exercise of independent professional judgment on behalf of the client and in undertaking representation on the client’s behalf. That professional commitment is not furthered, but endangered, if the possibility exists that the lawyer will change sides later in a substantially related matter. Both the fact and the appearance of total professional commitment are en dangered by adverse representation in related cases. From this standpoint it matters not whether confidences were in fact imparted to the lawyer by the client. The substantial relationship between the two representations is itself sufficient to disqualify. The rule we state is necessary to implement the following canons of professional ethics: Canon 1 (maintaining integrity and confidence in the legal profession); Canon 4 (preserving confidences and secrets of a client); Canon 5 (exercise of independent professional judgment); Canon 6 (representing a client competently); Canon 7 (representing a client zealously within bounds of the law); Canon 9 (avoiding even the appearance of professional impropriety). As we have stated, the underlying concern is the possibility, or appearance of the possibility, that the attorney may have received confidential information during the prior representation that would be relevant to the subsequent matter in which disqualification is sought. The test does not require the former client to show that actual confidences were disclosed. That inquiry would be improper as requiring the very disclosure the rule is intended to protect. See Westinghouse Electric Corp. v. Gulf Oil Corp., 588 F.2d at 224 and n.3. The inquiry is for this reason restricted to the scope of the representation engaged in by the attorney. It is the possibility of the breach of confidence, not the fact of the breach, that triggers disqualification. Once the attorney is found to be disqualified, both the attorney and the attorney’s firm are disqualified from suing the former client. See Government of India v. Cook Industries, Inc., 569 F.2d at 739-40; NCK Org’n Ltd. v. Bergman, 542 F.2d 128, 132-34 (2d Cir. 1976). Canon 4 applies not only to the individual attorney. Confidential information possessed by one attorney may or may not have been shared" }, { "docid": "22804902", "title": "", "text": "their work is often of a far more limited variety. Under the latter circumstances the attorney’s role cannot be considered “representation” within the meaning of T. C. Theatre Corp. and Emle [Emle Industries, Inc. v. Patentex, Inc., 478 F.2d 562 (2d Cir. 1973)] so as to require disqualification. . T. C. Theatre was decided in 1953 and many years later in 1969 the final draft of the A.B.A. Code of Professional Responsibility was formulated. “Appearance of impropriety” was not formally embodied in the previous Canons of Professional Ethics and “it was not until the adoption of Canon 9 of the Code of Professional Responsibility that the canons of ethics expressly enunciated that doctrine.” General Motors Corp. v. City of New York, 501 F.2d 639, 649, n.19 (2d Cir. 1974). As Judge Marshall said in the Cannon case, “even if defendants had been unable to persuade the court that there was a substantial relationship, Cannon’s representation was so lengthy and pervasive that he would have to be disqualified under Canon 9.” 398 F.Supp. at 228-29. See also Grueneberg, Ethical Considerations When an Attorney Opposes a Former Client: The Need for a Realistic Application of Canon Nine, 52 Chicago-Kent L.Rev. 525 (1975). . In addition, such an inquiry should be avoided whenever a presumption can be utilized due to the unsatisfactory nature of the potential evidence. This inquiry might for example consist of the questionable reliance on ex parte representations made in camera by the party seeking disqualification as to communicated confidences. Further, as the court in T. C. Theatre Corp., stated: To compel the client to show, in addition to establishing that the subject of the present adverse representation is related to the former, the actual confidential matters previously entrusted to the attorney and their possible value to the present client would tear aside the protective cloak drawn about the lawyer-client relationship. For the Court to probe further and sift the confidences in fact revealed would require the disclosure of the very matters intended to be protected by the rule. 113 F.Supp. at 269. . To obtain a mining patent the" }, { "docid": "23025461", "title": "", "text": "previous employment which might be used to the client’s disadvantage. Such an inquiry would prove destructive of the weighty policy considerations that serve as the pillars of Canon 4 of the Code, for the client’s ultimate and compelled response to an attorney’s claim of non-access would necessarily be to describe in detail the confidential information previously disclosed and now sought to be preserved. [Emle Industries, Inc. v. Paten-tex, Inc., 478 F.2d 562 at 571 (2 Cir. 1973).] Absent an attorney-client relationship, no court has applied the presumption inherent in Canon 4. Shell and Amoco’s reliance on NCK Organization Ltd. v. Bregman, 542 F.2d 128 (2nd Cir. 1976) and Hull, supra, for the proposition that an attorney-client relationship is not required for application of Canon 4, is unavailing. In those cases, in-house counsel for the corporate defendants switched sides; in the former by becoming co-counsel of plaintiff’s attorney; in the latter by becoming a plaintiff in the suit and retaining the original plaintiff’s attorneys. In-house counsel in both cases were presumed to have received information from their former corporate clients, and that information was imputed to the attorneys with whom in-house counsel became associated. Canon 5 Canon 5 deals with professional zeal. The term “client” in Canon 5 identifies the beneficiary of that zeal. The Canon is broad enough to preclude simultaneous representation of conflicting interests (Ethical Consideration 5-14 of Canon 5) and the use of information against someone who, reposing confidence in the lawyer, supplied that information to the lawyer’s client, and to encompass similar ethical considerations involved in the lawyer’s exercise of his professional judgment. The evidence here reflects no failure of compliance with Canon 5, or potential for such failure, on the part of the Lashly firm. Nothing of record indicates an impediment to the exercise of independent professional judgment by the Lashly firm on behalf of its present client, Weber; nothing indicates the presence of conflicting interests; nothing indicates that Shell or Amoco, or anyone else, supplied information to Weber, whether in confidential reliance on the Lashly firm or otherwise. Canon 9 Unlike those of Canons 4" }, { "docid": "23494483", "title": "", "text": "Company, 136 F.Supp. 345, 364 (S.D.N.Y.1955). This position is entirely consistent with the previously discussed aim of Canon 9 to avoid the appearance of impropriety. The most recent application of the principles behind Canon 4 is furnished by Emile Industries, Inc. v. Patentex, Inc., 478 F.2d 562 (2d Cir. 1973). Canon 4 implicitly incorporates the admonition, embodied in old Canon 6, that “The [lawyer’s] obligation to represent the client with undivided fidelity and not to divulge his secrets or confidences forbids also the subsequent acceptance of retainers or employment from others in matters adversely affecting any interest of the client with respect to which confidence has been reposed.” Without strict enforcement of such high ethical standards, a client would hardly be inclined to discuss his problems freely and in depth with his lawyer, for he would justifiably fear that information he reveals to his lawyer on one day may be used against him on the next. A lawyer’s good faith, although essential in all his professional activity, is, nevertheless, an inadequate safeguard when standing alone. Even the most rigorous self-discipline might not prevent a lawyer from unconsciously using or manipulating a confidence acquired in the earlier representation and transforming it into a telling advantage in the subsequent litigation. Or, out of an excess of good faith, a lawyer might bend too far in the opposite direction, refraining from seizing a legitimate opportunity for fear that such a tactic might give rise to an appearance of impropriety. In neither event would the litigant’s or the public’s interest be well served. The dynamics of litigation are far too subtle, the attorney's role in that process is far too critical, and the public’s interest in the outcome is far too great to leave room for even the slightest doubt concerning the ethical propriety of a lawyer’s representation in a given case.. These considerations require application of a strict, prophylactic rule to prevent any possibility, however slight, that confidential information acquired from a client during a previous relationship may subsequently be used to the client’s disadvantage. 478 F.2d at 570-71. Moreover, the court held" }, { "docid": "15693964", "title": "", "text": "citations omitted). Thus, the inquiry facing this court is whether Mr. Gassel’s employment at EBB&G creates the potential that intervenor-defendants will obtain an unfair advantage due to Mr. Gassel’s possession of confidential information about plaintiff’s position. As described below, this court feels that Mr. Gassel’s presence at EBB&G poses a considerable risk that client confidences will be disclosed in violation of Canon 4 of the Code of Professional Responsibility (Code). Moreover, EBB&G’s continued representation of intervenor-defendants definitely creates an appearance of impropriety in violation of Canon 9. Use of Privileged Information In order to determine whether EBB&G must be disqualified, this court must first determine whether Mr. Gassel himself is disqualified from representing defendant-intervenors. The appropriate test to be applied has come to be known in this Circuit as the “substantially related” test. The phrase comes from an opinion by Judge Weinfeld of this court in a case where a lawyer was attempting to represent a client with interests adverse to those of a former client. Judge Weinfeld stated that: the former client [must] show no more than that the matters embraced within the pending suit wherein his former attorney appears ... are substantially related to the matters or cause of action where the attorney previously represented him, the former client. The court will assume that during the course of the former representation, confidences were disclosed . . . Only in this manner can the lawyer’s duty of absolute fidelity be enforced and the spirit of the rule ... be maintained. T. C. Theatre Corp. v. Warner Bros. Pictures, 113 F.Supp. 265, 268-269 (S.D.N.Y. 1953). This test has been consistently endorsed by the Second Circuit, and specifically applied in cases involving alleged access to privileged information derived from pri- or representation. See Fund of Funds, Ltd. v. Arthur Andersen & Co., 567 F.2d 225, 235 (2d Cir. 1977) (and case cited therein); Emle Industries, Inc. v. Patentex, Inc., 478 F.2d 562 (2d Cir. 1973). Preliminarily, defendant-intervenors suggest that this test is inapplicable because the privileged information allegedly possessed by Mr. Gassel, according to affidavits in support of this motion, was" }, { "docid": "23494502", "title": "", "text": "applicable to shareholder’s derivative suits. Murphy v. Washington American League Base Ball Club, Inc., 116 U.S.App.D.C. 362, 324 F.2d 394, 398 (1963). . Canon 4 of the CPR is the present embodiment of former ABA Canons 6 and 37. 6. Adverse Influences and Conflicting Interests . . . The obligation to represent the client with undivided fidelity and not to divulge his secrets or confidences forbids also the subsequent acceptance of retainers and employment from others in matters adversely affecting the interest of the client with respect to which a confidence has been reposed. 37. Confidences of a Client It is the duty of a lawyer to preserve his client’s confidences. This duty outlasts the lawyers employment and extends as well to his employees; and neither of them should accept employment which involves disclosure or use of these confidences, either for private advantage of the lawyer or his employees or to the disadvantage of the client without his knowledge and consent, and even though there are other available sources of. such information. A lawyer should not continue employment when he discovers that this obligation prevents the performance of his full duty to his former or new client. . DR 4-101 (A) defines confidence as referring to information protected by the attorney-client privilege and secret refers to other information gained in the professional relationship that the client has requested be held inviolate or the disclosure of which would be embarrassing or would be likely to be detrimental to the client. . Footnote 7 states in part: [A]n attorney must not accept professional employment against a client or a former client which will, or even may require him to use confidential information obtained by the attorney in the course of his professional relations with such client regarding the subject matter of the employment. . . . ABA Opinion 165 (1936). . See also Bar mar Drive-in Theater v. Warner Bros. Pictures, 239 F.2d 555 (2d Cir. 1956); Laskey Bros. v. Warner Bros. Pictures, 224 F.2d 824 (1955), cert. denied, 350 U.S. 932, 76 S.Ct. 300, 100 L.Ed. 814 (1956). . In United" }, { "docid": "18831375", "title": "", "text": "preservation of the secrets and confidences of former clients, as well as Canon 9, which forbids even the appearance of impropriety. IPD demands disqualification to prevent the possibility that the law firm might disclose or rely upon confidences imparted to it by the Georges during the prior representation. In fact, IPD alleges that Spencer, Fane, Britt and Browne has already relied upon such confidences in this lawsuit in cross-examination of Mr. George by Jerome Wolf during a hearing held on June 4, 1980, in connection with Fram’s application for foreclosure of its security interest. Fram opposes IPD’s motion on the grounds that: (1) Spencer, Fane, Britt and Browne has never represented IPD, and thus the requisite attorney/client relationship is absent; and (2) the law firm’s representation of the Georges’ personal interests was negligible and did not bear on any issue in this lawsuit. Therefore, Fram argues, even assuming the truth of the facts alleged by IPD, a necessary element for disqualification has not been established, namely, a substantial relationship between the former representation of the Georges by Spencer, Fane, Britt and Browne and the issues in the present lawsuit. Canon 4 provides: “A lawyer should preserve the confidences and secrets of a client.” The lawyer’s duty outlasts his employment, and courts have construed Canon 4 to prohibit disclosures of confidential communications of former clients. Emle Industries Inc. v. Patentex, Inc., 478 F.2d 562 (2nd Cir. 1973). The principle of protection of a former client’s confidences may prevent an attorney from appearing on behalf of an adversary to that former client in subsequent legal proceedings. Realco Services, Inc. v. Holt, 479 F.Supp. 867, 871 (E.D.Pa. 1979). Canon 4 protects only clients against disclosure of confidential information. R-T Leasing Corp. v. Ethyl Corp., 484 F.Supp. 950, 953 (S.D.N.Y.1979). Thus, Fram claims that IPD, which was never represented by Spencer, Fane, Britt and Browne, has no basis for objecting to the law firm’s representation of Fram in this action. However, the Court need not decide whether IPD has standing, for we assume that the Georges are joining in the motion; it appears to" }, { "docid": "1733888", "title": "", "text": "Professional Responsibility (“Code”), as promulgated by the American Bar Association and adopted by the New York Bar Association. However, defendant places greatest emphasis upon Canon 5, which provides: “A lawyer should exercise independent professional judgment on behalf of a client.” In Cinema 5, Ltd. v. Cinerama, Inc., 528 F.2d 1384 (2d Cir. 1976), the Second Circuit considered the application of Canon 5 to an attorney seeking to represent a plaintiff prosecuting a suit against another current client of the attorney. The attorney argued that disqualification should not be required absent a “substantial relationship” between the subject matter of the action at bar and that of the attorney’s representation of the defendant. The court rejected that contention as relying upon an inappropriate measure of compliance with Canon 5. “The ‘substantial relationship’ test is indeed the one that we have customarily applied in determining whether a lawyer may accept employment against a former client. International Electronics Corp. v. Flanzer, 527 F.2d 1288, 1291 (2d Cir. 1975); Silver Chrysler Plymouth, Inc. v. Chrysler Motors Corp., 518 F.2d 751 (2d Cir. 1975); Emle Industries, Inc. v. Patentex, Inc., 478 F.2d 562 (2d Cir. 1973). However, in this ease, suit is not against a former client, but an existing one. “The propriety of this conduct must be measured not so much against the similarities in litigation, as against the duty of undivided loyalty which an attorney owes to each of his clients. “Ethical Considerations 5-1 and 5-14 of the American Bar Association’s Code of Professional Responsibility provide that the professional judgment of a law-, yer must be exercised solely for the benefit of his client, free of compromising influences and loyalties, and this precludes his acceptance of employment that will adversely affect his judgment or dilute his loyalty. “Under the Code, the lawyer who would sue his own client, asserting in justification the lack of ‘substantial relationship’ between the litigation and the work he has undertaken to perform for that client, is leaning on a slender reed indeed. Putting it as mildly as we can, we think it would be questionable conduct for an attorney" }, { "docid": "6155483", "title": "", "text": "Food Centres, Inc. or any subsidiary or related company or person.” GNC then requested that NFC permit RSD & H to continue its participation in the case. NFC refused. That refusal precipitated GNC’s motion for declaration of qualification, and NFC’s cross-motion for disqualification which are now at issue. II. Discussion Plaintiffs argue that RSD & H must be disqualified from this case, given the requirements of Canons 4 and 9 of the ABA Code of Professional Responsibility, and the codification of these Canons in the Massachusetts Supreme Judicial Court Rule 3:07 Disciplinary Rules 4-101 and 9-101. Canon 4 provides that “a lawyer should preserve the confidences and secrets of a client.” Canon 9 states that “a lawyer should avoid even the appearance of professional impropriety.” Courts have interpreted these Canons to prohibit a lawyer from undertaking a representation adverse to a former client on subject matter related to the business with the former client, although there is no Disciplinary Rule explicitly prohibiting such subsequent representation. See, e.g., Emle Industries, Inc. v. Patentex, Inc., 478 F.2d 562 (2d Cir.1973); Hull v. Celanese Corporation, 513 F.2d 568 (2d Cir.1975); In re Corrugated Container Antitrust Litigation, 659 F.2d 1341 (5th Cir. 1981); T.C. Theatre Corp. v. Warner Brothers Pictures, Inc., 113 F.Supp. 265 (S.D.N.Y. 1953). The rationale for this prohibition is twofold. First, adverse subsequent representation entails a risk that the former client’s interests could be jeopardized by disclosure or misuse of its confidential communications. Second, for a lawyer to switch sides on the same or a related controversy would create an appearance of impropriety and serve to undermine the public’s confidence in the integrity of the legal profession. There certainly is an inherent risk that a client’s confidences and secrets could be revealed or misused should a lawyer subsequently accept employment on behalf of an adverse party with respect to a related matter. In order to guard strictly against this risk, subsequent adverse representation has been prohibited, irrespective of whether or not client confidences were actually received in the course of the first representation. Under the standard enunciated by Judge Weinfeld in" } ]

[ { "docid": "23486632", "title": "", "text": "Portland Midwest Co. v. Kaiser Aluminum & C. Corp., supra, 407 F.2d at p. 294; see, also, Rolax v. Atlantic Coast Line R. Co. (4th Cir. 1951) 186 F.2d 473, 481. . Mills v. Electric Auto-Lite (1970) 396 U.S. 375, 392, 90 S.Ct. 616, 625, 24 L.Ed. 2d 593. . Sprague v. Ticonic Bank (1939) 307 U.S. 161, 166, 59 S.Ct. 777, 779, 83 L.Ed. 1184. . 3 Barron & Holtzoff, Federal Practice & Procedure (Rev.Ed.1958) p. 67, states the rationale thus: “The allowance of extraordinary costs ‘as between solicitor and client’ rests upon recognized equitable principles and may be made whenever the burden of litigation assumed by the prevailing party substantially benefits others who should in equity contribute to the expense.” . Kahan v. Rosenstiel (3d Cir. 1970) 424 F.2d 161, 167, cert. den. Glen Alden Corp. v. Kahan, 398 U.S. 950, 90 S.Ct. 1870, 26 L.Ed.2d 290. . 6 Moore’s Federal Practice, supra, p. 1352; Newman v. Piggie Park Enterprises (1968) 390 U.S. 400, 402, note 4, 88 S.Ct. 964, 19 L.Ed.2d 1263; Undersea Eng. & Const. Co. v. International Tel. & Tel. Corp. (9th Cir. 1970) 429 F.2d 543, 545; Kinnear-Weed Corp. v. Humble Oil & Refining Co. (5th Cir. 1971) 441 F.2d 631, 636-637; Note, 8 L.Ed.2d 912. . Bangor & A. R. Co. v. Brotherhood of Loc. Fire. & Eng., supra, 442 F.2d at p. 824; Local No. 149 I. U., U.A., A. & A.I.W. v. American Brake Shoe Co. (4th Cir. 1962) 298 F.2d 212, 216, cert. den. 369 U.S. 873, 82 S.Ct. 1142, 8 L.Ed. 2d 276. . Bell is favorably commented on in 77 Har.L.Rev. 1135 (1964). . 345 F.2d at p. 321. . 321 F.2d at p. 500. . These eases were summarized in Haining v. Roberts, supra, 320 F.Supp. at p. 1063, thus: “In the exercise of this equitable discretion (to allow attorney’s fees) in civil rights cases, courts have generally denied the extraordinary relief of awarding attorney’s fees absent a finding of ‘unreasonable, obdurate obstinacy’ on the part of the defendant.” It has been suggested that in certain civil" } ]

[ { "docid": "2993172", "title": "", "text": "that the “bad faith” and “common benefit” exceptions to the “American Rule” are still viable, despite the holding in Alyeska. At pages 257-258, at page 1621 of 95 S.Ct. in Alyeska, the court stated as follows: To be sure, the fee statutes have been construed to allow, in limited circumstances, a reasonable attorneys’ fee to the prevailing party in excess of the small sums permitted by § 1923. In Trustees v. Greenough, 105 U.S. 527 [26 L.Ed. 1157] (1881), the 1853 Act was read as not interfering with the historic power of equity to permit the trustee of a fund or property, or a party preserving or recovering a fund for the benefit of others in addition to himself, to recover his costs, including his attorneys’ fees, from the fund or property itself or directly from the other parties enjoying the benefit. That rule has been consistently followed. Central Railroad & Banking Co. v. Pettus, 113 U.S. 116 [5 S.Ct. 387, 28 L.Ed. 915] (1885); Harrison v. Perea, 168 U.S. 311, 325-326 [18 S.Ct. 129, 134-135, 42 L.Ed. 478] (1897); United States v. Equitable Trust Co., 283 U.S. 738 [51 S.Ct. 639, 75 L.Ed. 1379] (1931); Sprague v. Ticonic National Bank, 307 U.S. 161 [59 S.Ct. 777, 83 L.Ed. 1184] (1939); Mills v. Electric Auto-Lite Co., 396 U.S. 375 [90 S.Ct. 616, 24 L.Ed.2d 593] (1970); Hall v. Cole, 412 U.S. 1 [93 S.Ct. 1943, 36 L.Ed.2d 702] (1973); cf. Hobbs v. McLean, 117 U.S. 567, 581-582 [6 S.Ct. 870, 876-877, 29 L.Ed. 940] (1886). See generally Dawson, Lawyers and Involuntary Clients: Attorneys Fees from Funds, 87 Harv.L.Rev. 1597 (1974). Also a court may assess attorneys’ fees for the “willful disobedience of a court order ... as part of the fine to be levied on the defendant. Toledo Scale Co. v. Computing Scale Co., 261 U.S. 399, 426-428 [43 S.Ct. 458, 465-466, 67 L.Ed. 719] (1923).” Fleischmann v. Maier Brewing Co., supra, 386 U.S. [714], at 718 [87 S.Ct. 1404, at 1407, 18 L.Ed.2d 475]; or when the losing party has “acted in bad faith, vexatiously, wantonly, or for oppressive" }, { "docid": "2346759", "title": "", "text": "rule of denying attorney’s fees as part of the costs of litigation. Carefully enunciated by the Supreme Court in Sprague v. Ticonic National Bank, 307 U.S. 161, 59 S.Ct. 777, 83 L.Ed. 1184 (1939), Mills v. Electric Auto-Lite, Co., 396 U.S. 375, 90 S.Ct. 616, 24 L.Ed.2d 593 (1970), and many other cases, this exception seeks to spread the cost of the plaintiff’s efforts proportionately among those who benefited. This exception is not narrowly founded on any rigid set of facts which must be found but rather “is part of the historic equity jurisdiction of the federal courts. [and] is part of the original authority of the chancellor to do equity in a particular situation.” Sprague v. Ticonic National Bank, supra, 307 U.S. at 164, 166, 59 S.Ct. at 779. The recent Supreme Court decision in Alyeska Pipeline Service Co. v. Wilderness Society, 421 U.S. 240, 95 S.Ct. 1612, 44 L.Ed.2d 141 (1975), while sharply limiting the private attorney general exception to the American rule, did not limit the exception applicable in this case. In this action the National Association of Regional Medical Programs was organized specifically to prosecute the case on the merits. To assure standing, two RMPs were named as plaintiffs also. However, there was an extreme lack of money to prosecute the case. Mr. Wagshal took the case, agreeing to receive a $35 per hour “front fee” from the National Association, with the express understanding that, if successful, he would then petition the court for a fee to be paid from the benefiting class. The $35 per hour fee that has been paid to Mr. Wagshál was not paid by the benefiting class; rather, that fee was collected as donations from the professional staff of the various regional medical programs. Clearly, this is a case where a plaintiff class — the 53 RMPs — have benefited from litigation brought on their behalf but for which they have not paid. Because of the recovery which they have received, an appropriate fee can be paid, providing reasonable compensation to Mr. Wagshal and also reimbursing the National Association of Regional" }, { "docid": "8169874", "title": "", "text": "had been postponed and the offending proxy statement withdrawn. The plaintiffs then refiled their request for attorneys’ fees, contending that they had conferred a substantial benefit on the shareholders of Del Monte by causing the directors to correct a false proxy statement. The district court held, as a matter of law, that the plaintiffs were not entitled to present a claim for attorneys’ fees because they had not brought the action as a class action or a derivative suit, a procedure which the district court held was required by the Supreme Court’s holding in Mills v. Electric Auto-Lite Co., 396 U.S. 375, 90 S.Ct. 616, 24 L.Ed.2d 593 (1970). The court reasoned that an award of attorneys’ fees would result in an expansion of the exceptions to the general rule prohibiting awards, a course precluded by Alyeska Pipeline Service Co. v. Wilderness Society, 421 U.S. 240, 269, 95 S.Ct. 1612, 44 L.Ed.2d 141 (1975). Accordingly, the court dismissed the action as moot. Although the American rule prohibits an award of attorneys’ fees in the absence of a statute or contract providing for an award, Fleischmann Distilling Corp. v. Maier Brewing Co., 386 U.S. 714, 717, 87 S.Ct. 1404, 18 L.Ed.2d 475 (1967), exceptions to the rule have developed based upon the equitable powers of the courts, Sprague v. Ticonic National Bank, 307 U.S. 161, 166, 59 S.Ct. 777, 83 L.Ed. 1184 (1939), to award attorneys’ fees when “overriding considerations of justice seemed to compel such a result.” Fleischmann Distilling Corp. v. Maier Brewing Co., 386 U.S. at 718, 87 S.Ct. at 1407. One of the established equitable exceptions is the “common benefit” exception, which permits an award of attorneys’ fees to a plaintiff whose action results in a substantial benefit to others. Hall v. Cole, 412 U.S. 1, 5, 93 S.Ct. 1943, 36 L.Ed.2d 702 (1973); Mills v. Electric Auto-Lite Co., 396 U.S. at 393-94, 90 S.Ct. 616. This exception evolved from the “common fund” cases, in which attorneys’ fees were awarded to a plaintiff who sued in a representative capacity and whose litigation resulted in the creation or recovery" }, { "docid": "18455000", "title": "", "text": "that the litigation and these proceedings were compelled by the defendant’s “unreasonable, obdurate obstinacy,” the test referred to in Stolberg v. Members of Bd. of Tr. for State Col. of Conn., 474 F.2d 485, 489-91 (2 Cir. 1973). The Court disagrees. Costly and protracted litigation was avoided when this case was settled prior to trial; obviously, an agreement to dispose of the main issues by the issuance of a consent order was not possible without the cooperation and good faith efforts of the defendant. The defendant’s resistance to the payment of counsel fees certainly cannot be characterized as the kind of “obdurate” conduct which would justify the imposition of attorneys’ fees as a penalty. Under the circumstances of this case, the defendant’s opposition to the plaintiff’s motion for an award of counsel fees was reasonable. (D) Common Benefit Theory While it is the general rule that “the prevailing litigant is ordinarily not entitled to collect a reasonable attorneys’ fee from the loser,” Alyeska Pipeline Service Co. v. Wilderness Society, supra, 421 U.S. at 247, 95 S.Ct. at 1616, a well-settled exception to the rule exists in special cases where the plaintiff’s suit confers a benefit on a class of persons and the award of fees serves to spread the costs of litigation among the people within the benefitted class. Id. at 4567, 95 S.Ct. 1612; see also Hall v. Cole, 412 U.S. 1, 93 S.Ct. 1943, 36 L.Ed.2d 702 (1973); Mills v. Electric Auto-Lite Co., 396 U.S. 375, 90 S.Ct. 616, 24 L.Ed.2d 593 (1970); Sprague v. Ticonic Bank, 307 U.S. 161, 59 S.Ct. 777, 83 L.Ed. 1184 (1939). As this Court has stated on prior occasions during the course of this lawsuit, the award of attorneys’ fees would be an equitable and just application of judicial discretion. The plaintiff’s action sought to secure the rights and guarantees of due process and equal protection to a large group of women in the State of Connecticut. By enjoining enforcement of the Connecticut statute, plaintiff compelled officials of the State to harmonize their actions with the congressional policy that unemployment compensation benefits" }, { "docid": "12857632", "title": "", "text": "the basis for such an award in this case, “common benefit,” follows. III. “COMMON BENEFIT” Although the traditional American rule disfavors the award of attorney’s fees in the absence of statutory or contractual authorization, the federal courts have the inherent power to fashion such equitable relief, payable by those enjoying a common benefit, under certain circumstances, see, Hall v. Cole, 412 U.S. at 4-5, 93 S.Ct. 1943; Sprague v. Ticonic National Bank, 307 U.S. 161, 166, 59 S.Ct. 777, 83 L.Ed. 1184 (1939), and have not hesitated to use this power where “overriding considerations indicate the need for such a recovery,” Mills v. Electric Auto-Lite Co., 396 U.S. 375, 391—92, 90 S.Ct. 616, 625, 24 L.Ed.2d 593 (1970); see Fleischmann, 386 U.S. at 718, 87 S.Ct. 1404. The courts have been particularly sensitive to the need and desirability of the allowance of attorney’s fees in cases where a plaintiff’s prosecution of an action confers “a substantial benefit on the members of an ascertainable class, and where the court’s jurisdiction over the subject matter of the suit makes possible an award that will operate to spread the costs proportionately among them,” Mills, 396 U.S. at 393-94, 90 S.Ct. at 626. In such cases, “fee-shifting” has been deemed appropriate because “to allow the others to obtain full benefit from the plaintiff’s efforts without contributing equally to the litigation expenses would be to enrich the others unjustly at the plaintiff’s expense.” Id. at 392, 90 S.Ct. at 625; Hall v. Cole, 412 U.S. at 6, 93 S.Ct. 1943. The vitality of this “common benefit” exception has been affirmed recently by the Supreme Court in Alyeska Pipeline Co. v. Wilderness Society, 421 U.S. 240, 257-59, 95 S.Ct. 1612, 44 L.Ed.2d 141 (1975). As the Alyeska Court stated, the roots of this exception lie in “the historic power of equity to permit the trustee of a fund or property, or a party preserving or recovering a fund for the benefit of others in addition to himself, to recover his costs, including his attorney’s fees from the fund or property itself or directly from the other" }, { "docid": "2346758", "title": "", "text": "a fee directly from them. See NCCMHC case, supra. However, having in personam jurisdiction over all plaintiffs in the case on the merits and having given each RMP actual detailed notice of the pendency of the fee proceeding and having given each RMP notice of its right to participate in this proceeding, the court holds that due process has been satisfied and that the court has valid in personam jurisdiction over each class member and can order each to pay a fee directly to Mr. Wagshal. See Mullane v. Central Hanover Bank & Trust Co., 339 U.S. 306, 70 S.Ct. 652, 94 L.Ed. 865 (1950). This in personam jurisdiction rests on the fact that each RMP has been before the court on the merits, has benefited from the court’s order requiring obligation of the impounded funds, and has been given notice and an opportunity to participate in the instant proceeding. III. This is a Proper Case for the Court to Award Attorney Fees. This action falls within one of the well-settled exceptions to the American rule of denying attorney’s fees as part of the costs of litigation. Carefully enunciated by the Supreme Court in Sprague v. Ticonic National Bank, 307 U.S. 161, 59 S.Ct. 777, 83 L.Ed. 1184 (1939), Mills v. Electric Auto-Lite, Co., 396 U.S. 375, 90 S.Ct. 616, 24 L.Ed.2d 593 (1970), and many other cases, this exception seeks to spread the cost of the plaintiff’s efforts proportionately among those who benefited. This exception is not narrowly founded on any rigid set of facts which must be found but rather “is part of the historic equity jurisdiction of the federal courts. [and] is part of the original authority of the chancellor to do equity in a particular situation.” Sprague v. Ticonic National Bank, supra, 307 U.S. at 164, 166, 59 S.Ct. at 779. The recent Supreme Court decision in Alyeska Pipeline Service Co. v. Wilderness Society, 421 U.S. 240, 95 S.Ct. 1612, 44 L.Ed.2d 141 (1975), while sharply limiting the private attorney general exception to the American rule, did not limit the exception applicable in this case. In" }, { "docid": "2993173", "title": "", "text": "134-135, 42 L.Ed. 478] (1897); United States v. Equitable Trust Co., 283 U.S. 738 [51 S.Ct. 639, 75 L.Ed. 1379] (1931); Sprague v. Ticonic National Bank, 307 U.S. 161 [59 S.Ct. 777, 83 L.Ed. 1184] (1939); Mills v. Electric Auto-Lite Co., 396 U.S. 375 [90 S.Ct. 616, 24 L.Ed.2d 593] (1970); Hall v. Cole, 412 U.S. 1 [93 S.Ct. 1943, 36 L.Ed.2d 702] (1973); cf. Hobbs v. McLean, 117 U.S. 567, 581-582 [6 S.Ct. 870, 876-877, 29 L.Ed. 940] (1886). See generally Dawson, Lawyers and Involuntary Clients: Attorneys Fees from Funds, 87 Harv.L.Rev. 1597 (1974). Also a court may assess attorneys’ fees for the “willful disobedience of a court order ... as part of the fine to be levied on the defendant. Toledo Scale Co. v. Computing Scale Co., 261 U.S. 399, 426-428 [43 S.Ct. 458, 465-466, 67 L.Ed. 719] (1923).” Fleischmann v. Maier Brewing Co., supra, 386 U.S. [714], at 718 [87 S.Ct. 1404, at 1407, 18 L.Ed.2d 475]; or when the losing party has “acted in bad faith, vexatiously, wantonly, or for oppressive reasons. .” F. D. Rich Co., supra, 417 U.S. [116], at 129 [94 S.Ct. 2157, at 2165, 40 L.Ed.2d 703] (citing Vaughan v. Atkinson, 369 U.S. 527 [82 S.Ct. 997, 8 L.Ed.2d 88] (1962); cf. Universal Oil Products Co. v. Root Refining Co., 328 U.S. 575, 580 [66 S.Ct. 1176, 1179, 90 L.Ed. 1447] (1946)). These exceptions are unquestionably assertions of inherent power in the courts to allow attorneys’ fees in particular situations, unless forbidden by Congress, but none of these exceptions is involved here. . One of the cases cited as authority for the “common benefit” exception is the case of Mills v. Electric Auto-Lite Co., 396 U.S. 375, 90 S.Ct. 616, 24 L.Ed.2d 593 (1970), wherein the Court stated as follows: While the general American rule is that attorneys’ fees are not ordinarily recoverable as costs, both the courts and Congress have developed exceptions to this rule for situations in which overriding considerations indicate the need for such a recovery. A primary judge-created exception has been to award expenses where a plaintiff has" }, { "docid": "2569409", "title": "", "text": "a prevailing litigant in the United States may only recover reasonable attorneys’ fees from the loser, absent legislative authorization or contractual agreement, in the following instances: (1) when a party preserving or recovering a fund or property for the benefit of himself and others seeks attorneys’ fees from the fund or property itself or from the other parties enjoying the benefit of the lawsuit; (2) when a party who has wilfully disobeyed a court is assessed attorneys’ fees as a part of a fine; and (3) when the loser has “acted in bad faith, vexatiously, wantonly, or for oppressive reasons.” Alyeska Pipeline Co. v. Wilderness Society, 421 U.S. 240, 247-59, 95 S.Ct. 1612, 1616-22, 44 L.Ed.2d 141 (1975). It was the first of these exceptions on which the district judge relied in assessing attorneys’ fees in this case. Unfortunately, however, the district court failed to recognize that awards of attorneys’ fees from a common fund or based on a common benefit have been predicated on jurisdiction over the fund as the subject matter of the suit, or over the beneficiaries (either directly or through a representative organization) as a defendant party to the suit. See, e.g., Hall v. Cole, 412 U.S. 1, 93 S.Ct. 1943, 36 L.Ed.2d 702 (1973) (defendant union assessed fees on behalf of its membership who benefited from plaintiff’s vindication of union-member rights under Landrum-Griffin Act); Mills v. Electric Auto-Lite Co., 396 U.S. 375, 90 S.Ct. 616, 24 L.Ed.2d 593 (1970) (defendant corporation assessed fees as beneficiary , of stockholder derivative suit to set aside corporate merger accomplished through misleading proxy statement); Sprague v. Ticonic National Bank, 307 U.S. 161, 59 S.Ct. 777, 83 L.Ed. 1184 (1939) (plaintiff recovered fees from earmarked funds in insolvent bank on which he established a lien for himself and, through stare decisis, for other depositors). As stated by Justice Brennan in Hall, the common benefit exception to the “American Rule” permits recovery of attorneys’ fees in “cases in which the plaintiff’s successful litigation confers ‘a substantial benefit on the members of an ascertainable class, and where the court’s jurisdiction over the" }, { "docid": "947511", "title": "", "text": "of redistricting plans. We conclude that the trial court should have adopted the. mixed plan in deference to the Board of Aldermen’s considered preference for a plan incorporating one at-large place into the aldermanic election scheme. VI The district court awarded attorneys’ fees to plaintiffs on the basis of the “common benefit” and “private attorney general” rationales. The court reasoned that such an award was proper in that plaintiffs’ action has rid Ferriday of a blatantly unconstitutional aldermanic election system, thereby rendering a signal service to Ferriday’s black citizens— the full effectuation of their voting rights — and aiding the congressional intention embodied in 42 U.S.C. § 1983. 377 F.Supp. 1192, 1202-08. We believe that the common benefit or “common fund” rationale of Mills v. Electric Auto-Lite Co., 1970, 396 U.S. 375, 90 S.Ct. 616, 24 L.Ed.2d 593, and Sprague v. Ticonic National Bank, 1939, 307 U.S. 161, 59 S.Ct. 777, 83 L.Ed. 1184, is inapposite here because there was no fund created by the litigation, and no indication that an award of attorneys’ fees against the Board of Aldermen will spread the costs of the lawsuit proportionately among the class that will benefit from this litigation. See Hall v. Cole, 1973, 412 U.S. 1, 93 S.Ct. 1943, 36 L.Ed.2d 702. At the time of the district court’s decision, its award of attorneys’ fees on the private attorney general rationale was certainly justified by the general application of that rule by the lower federal courts. See, e. g., Fairley v. Patterson, 5 Cir. 1974, 493 F.2d 598; Lee v. Southern Home Sites Corp., 5 Cir. 1971, 444 F.2d 143; Yelverton v. Driggers, M.D.Ala. 1974, 370 F.Supp. 612, Sims v. Amos, M.D.Ala.1972, 340 F.Supp. 691, aff’d, 409 U.S. 942, 93 S.Ct. 290, 34 L.Ed.2d 215. In the very recent case of Alyeska Pipeline Service Co. v. Wilderness Society, 1975, - U.S. -, 95 S.Ct. 1612, 44 L.Ed.2d 141, however, the Supreme Court has unequivocally declared that the private attorney general rule cannot support the award of attorneys’ fees in federal cases, in the absence of a specific statutory mandate. After a" }, { "docid": "21998555", "title": "", "text": "in the absence of statutory authority or an authorizing contract, federal courts do not award counsel fees. Alyeska Pipeline Service Co. v. The Wilderness Society, 421 U.S. 240, 95 S.Ct. 1612, 44 L.Ed.2d 141 (1975); Fleischmann Distilling Corp. v. Maier Brewing Co., 386 U.S. 714, 717-20, 87 S.Ct. 1404, 1407, 18 L.Ed.2d 475, 478 (1967); Grace v. Ludwig, 484 F.2d 1262, 1267 (2d Cir. 1973), cert. denied, 416 U.S. 905, 94 S.Ct. 1610, 40 L.Ed.2d 110 (1974); 1507 Corporation v. Henderson, 447 F.2d 540 (7th Cir. 1971); Tartell v. Chelsea National Bank, 351 F.Supp. 1071 (S.D.N.Y.), aff’d, 470 F.2d 994 (2d Cir. 1972). Nevertheless, as “part of the original authority of the chancellor to do equity in a particu lar situation,” Sprague v. Ticonic National Bank, 307 U.S. 161, 166, 59 S.Ct. 777, 780, 83 L.Ed. 1184, 1187 (1939); Hall v. Cole, 412 U.S. 1, 5, 93 S.Ct. 1943, 1946, 36 L.Ed.2d 702, 707 (1973); Mills v. Electric Auto-Lite Co., 396 U.S. 375, 391-92, 90 S.Ct. 616, 625, 24 L.Ed.2d 593, 605-606 (1970); see Grace v. Ludwig, supra at 1267, the Supreme Court has recognized two situations where federal courts may shift the expenses of litigation, including attorneys’ fees. I recently outlined these exceptions as follows: “1) where the obdurate behavior of a party has reflected wilful disobedience of a court order, or when the losing party has acted in bad faith, wantonly or vexatiously, the court may assess attorney’s fees as a punitive measure. * * * “2) when by their own efforts a claimant and his attorneys have created or preserved a common fund or substantial benefit, not necessarily pecuniary, for the members of a particular class, attorney’s fees are deducted from the total recovery in order to distribute fairly the burdens of a successful litigation among those who will reap its rewards. “The equitable basis of this [second] exception is the prevention of unjust enrichment — that is, that the plaintiff, at his own expense, has conferred a benefit upon the class for which justice demands he be recompensed.” Korn v. Franchard Corp., 67 Civ. 3445, Memorandum" }, { "docid": "16097190", "title": "", "text": "the “American Rule” —the principle, embodied in an 1853 statute and now codified as 28 U.S.C. §§ 1920, 1923(a), which bars in the absence of statutory authorization the award of attorneys fees to the prevailing party in federal litigation — is subject to a longstanding exception in the “common benefit” rationale. The Alyeska Court recognized that “[i]n Trustees v. Greenough, 105 U.S. 527 [26 L.Ed. 1157] (1882), the 1853 Act was read as not interfering with the historic power of equity to permit the trustee of a fund or property, or a party preserving or recovering a fund for the benefit of others in addition to himself, to recover his costs, including his attorneys’ fees, from the fund or property itself or directly from the other parties enjoying the benefit. That rule has been consistently followed.” Id. at 257-58, 95 S.Ct. at 1621. This “historic power of equity,” essentially an application of the court’s power when seized of jurisdiction over a case to award complete relief so as to prevent unjust enrichment, has developed well beyond the “common fund” limitation of Greenough. In Sprague v. Ticonic Nat’l Bank, 307 U.S. 161, 166, 59 S.Ct. 777, 83 L.Ed. 1184 (1939), the Court recognized power in the district court to reimburse a plaintiff’s litigation expenses even though she sued for her own benefit and not for a class, because her success would by operation of stare decisis entitle others to recover out of the same assets. There is no prerequisite of pecuniary benefit, as was made clear by Mills v. Electric Auto-Lite Co., 396 U.S. 375, 392-94, 90 S.Ct. 616, 24 L.Ed.2d 593 (1970), a case involving a judicially implied right of action under the Securities Exchange Act of 1934 to challenge materially false or misleading proxy solicitation. Hall v. Cole, 412 U.S. 1, 93 S.Ct. 1943, 36 L.Ed.2d 702 (1973), extends Mills to an express statutory cause of action. This development remains undisturbed after Alyeska because the “common benefit” rational was not involved in that case, and the Court made clear that “Congress has not repudiated the judicially fashioned exceptions to" }, { "docid": "1528387", "title": "", "text": "attorney’s fees in the case of Alyeska Pipeline Service Co. v. Wilderness Society, 421 U.S. 240, 95 S.Ct. 1612, 44 L.Ed.2d 141 (1975). In this regard, the court stated: “Against this background, this Court understandably declared in 1967 that with the exception of the small amounts allowed by § 1923 [28 U.S.C. § 1923], the rule ‘has long been that attorney’s fees are not ordinarily recoverable . . .’ Fleischmann Distilling Corp., 386 U.S., at 717, 87 S.Ct. 1404, [1407] 18 L.Ed.2d 475. Other recent cases have also reaffirmed the general rule that, absent statute or enforceable contract, litigants pay their own attorneys’ fees. See F. D. Rich Co., 417 U.S., at 128-131, 94 S.Ct. 2157, [2164-2166] 40 L.Ed.2d 703; Hall v. Cole, 412 U.S. 1, 4, 93 S.Ct. 1943, 36 L.Ed.2d 702 (1973). “To be sure, the fee statutes have been construed to allow, in limited circumstances, a reasonable attorneys’ fee to the prevailing party in excess of the small sums permitted by § 1923. In Trustees v. Greenough, 105 U.S. 527, 26 L.Ed. 1157 (1882), the 1853 Act [Act of Feb. 26,1853, 10 Stat. 161] was read as not interfering with the historic power of equity to permit the trustee of a fund or property, or a party preserving or recovering a fund for the benefit of others in addition to himself, to recover his costs, including his attorneys’ fees, from the fund or property itself or directly from the other parties enjoying the benefit. That rule has been consistently followed. Central Railroad & Banking Co. v. Pettus, 113 U.S. 116, 5 S.Ct. 387, 28 L.Ed. 915 (1885); Harrison v. Perea, 168 U.S. 311, 325-326, 18 S.Ct. 129, [134-135] 42 L.Ed. 478 (1897); United States v. Equitable Trust Co., 283 U.S. 738, 51 S.Ct. 639, 75 L.Ed. 1379 (1931); Sprague v. Ticonic National Bank, 307 U.S. 161, 59 S.Ct. 777, 83 L.Ed. 1184 (1939); Mills v. Electric Auto-Lite Co., 396 U.S. 375, 90 S.Ct. 616, 24 L.Ed.2d 593 (1970); Hall v. Cole, supra; cf. Hobbs v. McLean, 117 U.S. 567, 581-582, 6 S.Ct. 870, [876-877] 29 L.Ed. 940" }, { "docid": "2569410", "title": "", "text": "suit, or over the beneficiaries (either directly or through a representative organization) as a defendant party to the suit. See, e.g., Hall v. Cole, 412 U.S. 1, 93 S.Ct. 1943, 36 L.Ed.2d 702 (1973) (defendant union assessed fees on behalf of its membership who benefited from plaintiff’s vindication of union-member rights under Landrum-Griffin Act); Mills v. Electric Auto-Lite Co., 396 U.S. 375, 90 S.Ct. 616, 24 L.Ed.2d 593 (1970) (defendant corporation assessed fees as beneficiary , of stockholder derivative suit to set aside corporate merger accomplished through misleading proxy statement); Sprague v. Ticonic National Bank, 307 U.S. 161, 59 S.Ct. 777, 83 L.Ed. 1184 (1939) (plaintiff recovered fees from earmarked funds in insolvent bank on which he established a lien for himself and, through stare decisis, for other depositors). As stated by Justice Brennan in Hall, the common benefit exception to the “American Rule” permits recovery of attorneys’ fees in “cases in which the plaintiff’s successful litigation confers ‘a substantial benefit on the members of an ascertainable class, and where the court’s jurisdiction over the subject matter of the suit makes possible an award that will operate to spread the costs proportionately among them.’ ” 412 U.S. at 5, 93 S.Ct. at 1946 (quoting Mills v. Electric Auto-Lite Co., 396 U.S. at 393-94, 90 S.Ct. at 1626-27 (emphasis added). In holding that the court need only “have ‘jurisdiction over an entity through which the contribution can be effected,’ ” slip op. at 11 (App. at 421) (quoting Alyeska Pipeline, 421 U.S. at 276, 95 S.Ct. at 1631 (Marshall, J., dissenting)), the district judge has confused jurisdiction over the person with jurisdiction over the subject matter, and thus torn Justice Marshall’s statement from its “moorings” in the Mills decision cited in his opinion and quoted above. Liability for attorneys’ fees cannot rest, without more, on the fortuitous chance that the claim on which a plaintiff seeks recovery of fees may be joined in the same action with a separate claim against the intended source of that recovery. The court making the award must have jurisdiction over the target of that award" }, { "docid": "8863387", "title": "", "text": "jurisdiction pursuant to 28 U.S.C. § 1291. We review the district court’s award of attorney fees for an abuse of discretion. Homeward Bound, Inc. v. Hissom Memorial Center, 963 F.2d 1352, 1355 (10th Cir.1992). However, the court’s “legal analysis which provides the basis for the fee award is reviewable de novo.” Id. Under the American Rule, absent a statute or enforceable contract, a prevailing litigant is ordinarily not entitled to collect reasonable attorney fees from the loser. Alyeska Pipeline Serv. Co. v. Wilderness Soc’y, 421 U.S. 240, 247, 95 S.Ct. 1612, 1616, 44 L.Ed.2d 141 (1975). However, federal courts, “in the exercise of their equitable powers, may award attorneys’ fees when the interests of justice so require.” Hall v. Cole, 412 U.S. 1, 5, 93 S.Ct. 1943, 1946, 36 L.Ed.2d 702 (1973). Accordingly, courts have recognized a small number of equitable exceptions to the American Rule — i.e., the bad faith exception, the common fund exception, the willful disobedience of a court order exception, and the common benefit exception. Alyeska, 421 U.S. at 257-59, 95 S.Ct. at 1621-22. At the same time, the Court has rejected the private attorney general rationale of fee shifting. Id. at 245-46, 95 S.Ct. at 1615 (private attorney general rationale would award attorney fees to prevailing citizen who has vindicated important statutory rights of all citizens). Here, the district court awarded attorney fees under the common benefit exception to the American Rule. The common benefit exception applies in cases where “the plaintiffs successful litigation confers ‘a substantial benefit on the members of an ascertainable class, and where the court’s jurisdiction over the subject matter of the suit makes possible an award that will operate to spread the costs proportionately among them.’ ” Hall, 412 U.S. at 5, 93 S.Ct. at 1946 (quoting Mills v. Electric Auto-Lite Co., 396 U.S. 375, 393-94, 90 S.Ct. 616, 626, 24 L.Ed.2d 593 (1970)). Under the common benefit exception, the court may assess attorney fees against the group that ultimately benefits from the plaintiffs litigation by virtue of its jurisdiction over the parties. See Mills, 396 U.S. at 394-95, 90" }, { "docid": "12857634", "title": "", "text": "parties enjoying the benefit. That rule has been consistently followed.” Id. at 257-58, 95 S.Ct. at 1621, citing Trustees v. Greenough, 105 U.S. 527, 26 L.Ed. 1157 (1882). As pointed out by Judge Leventhal in Local 639, 543 F.2d at 382-83: “This ‘historic power of equity,’ essentially an application of the court’s power when seized of jurisdiction over a case to award complete relief so as to prevent unjust enrichment, has developed well beyond the ‘common fund’ limitation of Greenough. In Sprague v. Ticonic Nat’l Bank, 307 U.S. 161, 166, 59 S.Ct. 777, 83 L.Ed. 1184 (1939), the Court recognized power in the district court to reimburse a plaintiff’s litigation expenses even though she sued for her own benefit and not for a. class, because her success would by operation of stare decisis entitle others to recover out of the same assets. There is no prerequisite of pecuniary benefit, as was made clear by Mills v. Electric Auto-Lite Co., 396 U.S. 375, 392-94, 90 S.Ct. 616, 24 L.Ed.2d 593 (1970), a case involving a judicially implied right of action under the Securities Exchange Act of 1934 to challenge materially false or misleading proxy solicitation. Hall v. Cole, Cole, 412 U.S. 1, 93 S.Ct. 1943, 36 L.Ed.2d 702 (1973), extends Mills to an express statutory cause of action. “This development remains undisturbed after Alyeska because the ‘common benefit’ rational was not involved in that case, and the Court made clear that, ‘Congress has not repudiated the judicially fashioned exceptions to the general rule against allowing substantial attorney fees.’ 421 U.S. at 259-60, 95 S.Ct. at 1623. See also F. D. Rich Co. v. Industrial Lumber Co., 417 U.S. 116, 129-30 & n. 18, 94 S.Ct. 2157, 40 L.Ed.2d 703 (1974). “The issue here is whether the ‘common benefit’ rationale may be applied to the case of union member intervention in a suit brought by the Secretary to enforce electoral rights and maintain the integrity of a union election. The appropriateness of ‘fee-shifting’ in the union democracy context suggests an affirmative answer, unless Congress can be said to have evidenced a purpose" }, { "docid": "16097191", "title": "", "text": "beyond the “common fund” limitation of Greenough. In Sprague v. Ticonic Nat’l Bank, 307 U.S. 161, 166, 59 S.Ct. 777, 83 L.Ed. 1184 (1939), the Court recognized power in the district court to reimburse a plaintiff’s litigation expenses even though she sued for her own benefit and not for a class, because her success would by operation of stare decisis entitle others to recover out of the same assets. There is no prerequisite of pecuniary benefit, as was made clear by Mills v. Electric Auto-Lite Co., 396 U.S. 375, 392-94, 90 S.Ct. 616, 24 L.Ed.2d 593 (1970), a case involving a judicially implied right of action under the Securities Exchange Act of 1934 to challenge materially false or misleading proxy solicitation. Hall v. Cole, 412 U.S. 1, 93 S.Ct. 1943, 36 L.Ed.2d 702 (1973), extends Mills to an express statutory cause of action. This development remains undisturbed after Alyeska because the “common benefit” rational was not involved in that case, and the Court made clear that “Congress has not repudiated the judicially fashioned exceptions to the general rule against allowing substantial attorney fees.” 421 U.S. at 259-60, 95 S.Ct. at 1623. See also F. D. Rich Co. v. Industrial Lumber Co., 417 U.S. 116, 129-30 & n. 18, 94 S.Ct. 2157, 40 L.Ed.2d 703 (1974). With respect to LMRDA, the courts have uniformly applied a “common benefit” analysis to award attorney’s fees to private litigants. The Supreme Court in Hall v. Cole, supra, endorsing earlier decisions of the Third Circuit and this court, held that attorney’s fees may be awarded for suits brought to enforce the “Bill of Rights” guarantees of Title I of LMRDA. This court’s decision permitted the recovery of attorney’s fees for a suit under Title V, which places union officials under federally defined fiduciary obligations. Bakery & Confectionery Workers Int’l Union v. Ratner, 118 U.S.App.D.C. 269, 335 F.2d 691 (1964). Ratner was extended by this court to a suit brought under section 401(c), the only privately enforceable provision in Title IV. Yablonski v. United Mine Workers, 151 U.S.App.D.C. 253, 466 F.2d 424 (1972), cert. denied, 412" }, { "docid": "22273285", "title": "", "text": "National Bank, 307 U.S. 161, 59 S.Ct. 777, 83 L.Ed. 1184 (1939). By extension, the “common fund” exception has been used to award attorneys’ fees to a plaintiff whose actions benefit an identifiable class — such as the shareholders of a corporation— whether or not that benefit takes the form of a common fund. Hall v. Cole, 412 U.S. 1, 93 S.Ct. 1943, 36 L.Ed.2d 702 (1973); Mills v. Electric Auto-Lite Co., 396 U.S. 375, 90 S.Ct. 616, 24 L.Ed.2d 593 (1970). Finally, in recent years some federal cases have awarded attorneys’ fees on the theory that a plaintiff should receive this award when he acts as a “private attorney general,” that is, when his action vindicates an important congressional policy for the public at large. See Newman v. Piggie Park Enterprises, Inc., 390 U.S. 400, 88 S.Ct. 964, 19 L.Ed.2d 1263 (1968); see also Northcross v. Board of Education of Memphis City Schools, 412 U.S. 427, 93 S.Ct. 2201, 37 L.Ed.2d 48 (1973); Fairley v. Patterson, 493 F.2d 598 (5th Cir. 1974) (and cases cited therein). In the landmark case of Alyeska Pipeline Service Co. v. Wilderness Society, 421 U.S. 240, 95 S.Ct. 1612, 44 L.Ed.2d 141 (1975), the Supreme Court sharply curtailed the applicability of the “private attorney general” theory. While leaving intact the traditional, narrow equitable exceptions to the “American rule,” the Court held that attorneys’ fees could not be awarded on the basis of this theory in the absence of statutory authorization for attorneys’ fees. An underlying reason for this decision is that, in the absence of congressional guidance, courts are ill equipped to “pick and choose among plaintiffs and statutes” on the basis of their supposed relative importance to the public welfare. Id. at 270, 95 S.Ct. at 1627. Pointing out that Congress has enacted different sorts of attorneys' fees provisions in several statutes, the Court said that judicial decisions on attorneys’ fees are not to “make major inroads on a policy matter that Congress has reserved for itself.” Id. at 261, 270, 95 S.Ct. at 1627. The Alyeska decision thus requires that where no" }, { "docid": "12857633", "title": "", "text": "suit makes possible an award that will operate to spread the costs proportionately among them,” Mills, 396 U.S. at 393-94, 90 S.Ct. at 626. In such cases, “fee-shifting” has been deemed appropriate because “to allow the others to obtain full benefit from the plaintiff’s efforts without contributing equally to the litigation expenses would be to enrich the others unjustly at the plaintiff’s expense.” Id. at 392, 90 S.Ct. at 625; Hall v. Cole, 412 U.S. at 6, 93 S.Ct. 1943. The vitality of this “common benefit” exception has been affirmed recently by the Supreme Court in Alyeska Pipeline Co. v. Wilderness Society, 421 U.S. 240, 257-59, 95 S.Ct. 1612, 44 L.Ed.2d 141 (1975). As the Alyeska Court stated, the roots of this exception lie in “the historic power of equity to permit the trustee of a fund or property, or a party preserving or recovering a fund for the benefit of others in addition to himself, to recover his costs, including his attorney’s fees from the fund or property itself or directly from the other parties enjoying the benefit. That rule has been consistently followed.” Id. at 257-58, 95 S.Ct. at 1621, citing Trustees v. Greenough, 105 U.S. 527, 26 L.Ed. 1157 (1882). As pointed out by Judge Leventhal in Local 639, 543 F.2d at 382-83: “This ‘historic power of equity,’ essentially an application of the court’s power when seized of jurisdiction over a case to award complete relief so as to prevent unjust enrichment, has developed well beyond the ‘common fund’ limitation of Greenough. In Sprague v. Ticonic Nat’l Bank, 307 U.S. 161, 166, 59 S.Ct. 777, 83 L.Ed. 1184 (1939), the Court recognized power in the district court to reimburse a plaintiff’s litigation expenses even though she sued for her own benefit and not for a. class, because her success would by operation of stare decisis entitle others to recover out of the same assets. There is no prerequisite of pecuniary benefit, as was made clear by Mills v. Electric Auto-Lite Co., 396 U.S. 375, 392-94, 90 S.Ct. 616, 24 L.Ed.2d 593 (1970), a case involving a judicially" }, { "docid": "18455001", "title": "", "text": "S.Ct. at 1616, a well-settled exception to the rule exists in special cases where the plaintiff’s suit confers a benefit on a class of persons and the award of fees serves to spread the costs of litigation among the people within the benefitted class. Id. at 4567, 95 S.Ct. 1612; see also Hall v. Cole, 412 U.S. 1, 93 S.Ct. 1943, 36 L.Ed.2d 702 (1973); Mills v. Electric Auto-Lite Co., 396 U.S. 375, 90 S.Ct. 616, 24 L.Ed.2d 593 (1970); Sprague v. Ticonic Bank, 307 U.S. 161, 59 S.Ct. 777, 83 L.Ed. 1184 (1939). As this Court has stated on prior occasions during the course of this lawsuit, the award of attorneys’ fees would be an equitable and just application of judicial discretion. The plaintiff’s action sought to secure the rights and guarantees of due process and equal protection to a large group of women in the State of Connecticut. By enjoining enforcement of the Connecticut statute, plaintiff compelled officials of the State to harmonize their actions with the congressional policy that unemployment compensation benefits should not be denied or diminished by reason of sex. In addition, substantial benefits have been conferred upon numerous members of an ascertainable class, cf. Mills v. Electric Auto-Lite Co., supra, 396 U.S. at 393-94, 90 S.Ct. 616, and a fund has been recovered in which others share. Cf. Sprague v. Ticonic Bank, supra, 307 U.S. at 166, 59 S.Ct. 777. See also Lindy Brothers Builders, Inc. v. American Radiator and Standard Sanitary Corporation, 487 F.2d 161, 164-166 (3 Cir. 1973). Ordinarily, under these circumstances, the Court would deduct a fair award of attorneys’ fees from the sums received by the benefited class. However, for the reasons stated previously, money to compensate plaintiff’s counsel may not be derived from the pockets of the claimants-beneficiaries. But this is not dispositive of the issue. In certain unique situations, courts have applied a type of “common benefit” theory to support the award of counsel fees. For example, when pecuniary benefits have been conferred upon a class, but the payment of fees by that class is inappropriate, a defendant" }, { "docid": "4314852", "title": "", "text": "any issue in its separate suit, Cordova is not entitled to costs. See 28 U. S.C. § 2412 (1970). Cf. Rule 54(d), Fed.R.Civ.P. With respect to the main issue posed, we hold that an award of attorneys’ fees is appropriate and remand the case to the District Court to determine the fees. I There have always existed equitable exceptions to the traditional Amer ican rule barring recovery of attorneys’ fees by a successful litigant. In eases in which a party has acted in bad faith, assessment of fees properly serves to punish that party’s obdurate behavior. See Hall v. Cole, 412 U.S. 1, 5, 93 S.Ct. 1943, 36 L.Ed.2d 702 (1973). Another exception includes cases in which the plaintiff’s suit confers a benefit on the members of an ascertainable class and in which an award of fees will serve to spread the costs of litigation among its beneficiaries. See Mills v. Electric Auto-Lite Co., 396 U.S. 375, 90 S.Ct. 616, 24 L.Ed.2d 593 (1970). Neither of these historic exceptions is applicable here. Appellees’ legal position as to the meaning of the Mineral Leasing Act and relevant administrative regulations, though ultimately rejected by the court, was manifestly reasonable and assumed in good faith, particularly in view of the long administrative practice supporting it. See Wilderness Society v. Morton, supra, 156 U.S.App.D.C. at 143-149, 479 F.2d at 864-870. And although the “common benefit” exception has been given expanded scope in recent cases, compare Hall v. Cole, supra, with Sprague v. Ticonic National Bank, 307 U.S. 161, 59 S.Ct. 777, 83 L.Ed. 1184 (1939), we would have to stretch it totally outside its basic rationale to apply it here. As is discussed more fully below, this litigation may well have provided substantial benefits to particular individuals and, indeed, to every citizen’s interest in the proper functioning of our system of government. But imposing attorneys’ fees on' Alyeska will not operate to spread the costs of litigation proportionately among these beneficiaries, the key requirement of the “common benefit” theory. See Bangor & Aroostook R. Co. v. Brhd of Loc. Firemen & Enginemen, 143 U.S.App.D.C." } ]

[ { "docid": "22353373", "title": "", "text": "there is an issue of fact to be tried. Ramsouer v. Midland Valley R. Co., D.C.Ark., 1942, 44 F.Supp. 523. All doubts as to the existence of a genuine issue as to a material fact must be resolved against the party moving for a summary judgment. Weisser v. Mursam Shoe Corporation, 2 Cir., 1942, 127 F.2d 344. In their bill of complaint the plaintiffs set forth five separate causes of action which they alleged Mokan had against the individual defendants. The court entered summary judgment for the defendants upon all five causes of action. Upon appeal the plaintiffs have tacitly abandoned two of the causes of action by restricting their arguments to the remaining three. We accordingly restrict our consideration to these three causes of action. As to each of them the same question must be asked—was there a substantial dispute as to a material fact, which, if resolved in favor of the plaintiffs, would entitle Mokan to recover from the defendants. Upon two of these causes of action we think the reply must be in the negative and that the entry of summary judgment thereon was proper. This is true as to the claim that the defendant Maguire received double commissions in 1930 without the knowledge of Mokan. The records clearly disclose that Mokan knew of the double commissions, that the commissions were not for the same services and that two courts of competent jurisdiction passed upon the matter adversely to the plaintiffs’ present claim. This leaves no material fact for relitigation. The same is true as to the amount of the commissions paid to Maguire for his 1930 services. Those amounts were arrived at by settlement and arbitration. There is absolutely nothing in the record to sustain the plaintiffs’ claim that the settlement was coerced or the arbitration fraudulent. Nor is there any genuine issue as to a material fact involved in the claim that in March, 1938, Maguire procured the issuance to W. E. Maguire & Company of certificates for 19,000 shares of Mokan stock upon an affidavit that the originals had been misappropriated, stolen, lost or" } ]

[ { "docid": "5994202", "title": "", "text": "FRANK, Circuit Judge. On defendant’s motion for summary judgment, the trial court, after considering the pleadings and affidavits, entered judgment dismissing the action. From that judgment, plaintiff appeals. On a motion for summary judgment, where the facts are in dispute, a judgment can properly be entered against the plaintiff only if, on the undisputed facts, he has no valid claim; if, then, any fact asserted by the plaintiff is contradicted by the defendant, the facts as stated by the plaintiff must, on such a motion, be taken as true. Accordingly for the purpose of our decision here, we take the facts as follows: Plaintiff, by a letter addressed to defendant company dated October 17, 1941, offered to make efforts to procure for defendant contracts for manufacturing products for national defense or war purposes, in consideration of defendant’s agreement to pay him $1,000 per month for a three months’ period if he were unsuccessful in his efforts, but, if he were successful, to pay him a further sum in an amount not to be less than 3% nor more than 8% of the “purchase price of said contracts.” On October 31, 1941, at a meeting in Grand Rapids, Michigan, between plaintiff and defendant’s President, the latter, on behalf of his company, orally made an agreement with plaintiff substantially on the terms set forth in plaintiff’s letter, one of the terms being that mentioned in plaintiff’s letter as to commissions; it was orally agreed that the exact amount within the two percentages was to be later determined by the parties. After this agreement was made, the parties executed, in Grand Rapids, a written instrument dated October 31, 1941, appearing on its face to embody a complete agreement between them; but that writing omitted the provision of their agreement that plaintiff, if successful, was to receive a bonus varying from three to eight per cent; instead, there was inserted in the writing a clause that the $1,000 per month “will be full compensation, but the company may, if it desires, pay you something in the nature of a bonus.” However, at the time" }, { "docid": "18128536", "title": "", "text": "a Friday sales meeting. Among other things, general discussions of the week’s work, differences in pricing, and new methods of installation were discussed. On some occasions when meetings were held, very few salesmen participated. On other occasions the attendance would be good. It was customary at these meetings for salesmen to air their complaints, and criticisms were invited in order to better the relationship between the plaintiff and the salesmen. Discussions often developed around the week’s experiences concerning sales resistance and competitive pricing. 9. All contracts were closed in the corporation’s name and had to be approved by the plaintiff before installation was undertaken. Usually the credit of the customer was also a factor in determining whether the contract would be accepted. The plaintiff’s approval of contracts was necessary before commissions were paid to the salesmen. 10. Cash sales were charged to the customers directly by the corporation. It was the policy of the company that if a cash customer failed to make payments on the contract, the commissions paid the salesman would be charged back against his account. However, about 95 percent of the company’s business was on credit, and the contracts and notes accompanying the contracts were discounted through banks in an arrangement where the company received all of its money. If a customer failed to keep up payments under this plan, the bank stood the loss rather than the company, and nothing was charged back to the salesman. 11. The salesmen received no guarantee of any remuneration or compensation, regardless of time or effort put into their selling activity. Compensation was on a commission basis computed on the gross amount of the contracts obtained. This applied both to the full-time and part-time salesmen. If, for some reason, a customer did not fulfill his obligation under the contract even after it was accepted, the salesman did not earn his commission, but when this happened the installation of plaintiff’s product had not taken place. 12. In addition to the compensation obtained on the commission basis, the plaintiff, in order to increase the incentive of the salesmen to produce, had" }, { "docid": "11104940", "title": "", "text": "entered into a new agreement with the Arkla companies. (JM App. at 2-3.) Having recognized the genuine factual disputes before him about “whether or when this take or pay contract was settled,” the district judge went on to say: But I don’t think it matters, at least not on this level, when or if the contract was settled, because I don’t think the plaintiffs have a right to any portion of the proceeds of a settlement of a take or pay obligation. (Id. at 3.) It was on that issue of law that we reversed the district court’s grant of sum mary judgment to Jones and McCoy and adopted the “Harrell Rule.” For our court to say today that “[o]ur legal conclusion that the transaction was a settlement was based upon the undisputed context of the negotiations leading up to the agreement ... ”, supra, at 785 (emphasis added), is directly contrary to the record before the district court at the time it granted summary judgment and cannot be correct. Like the district court, it was not necessary “on this level” for this court to decide in Klein I “whether or when this take or pay contract was settled” (let alone what was paid to settle it, which is also what the court now says the first opinion did and what it is now trying to enforce). All we had to decide in Klein I was whether royalty owners had a legal entitlement to share in the settlement of a take or pay contract and leave to the district court on remand to determine the factual issues of what, when, whether, and how settlement occurred. We consistently reverse district judges who decide disputed issues of fact in determining summary judgment motions. See Teleconnect v. Ensrud, 55 F.3d 357, 360 (8th Cir.1995) (“The summary judgment mechanism is not designed to forecast the work of the finder of fact.”); Oldham v. West, 47 F.3d 985, 989 (8th Cir.1995). We should be willing to take the same medicine we dose out and recognize our own errors when we make them. We are not" }, { "docid": "8371253", "title": "", "text": "January he made the introductions. Their understanding in that regard was buttressed in February by Bloomgarden during the ride to the Chicago airport when, asked pointedly as to his expectations, he omitted reference to individual recompense and replied simply that he had in view the possibility that his company would receive work assignments flowing from the Georgetown project if it materialized. Moreover, Bloomgarden admitted in his deposition that not until the end of March — long after completion of the services for which remuneration was demanded — did he suggest compensation for SDI, his company, and not until May did he indicate that he anticipated personal compensation. Against these damaging incidents and admissions — the underpinnings of appellees’ motion for summary judgment — Bloomgarden advanced nothing more than the bare conclusory allegations of his complaint. We are mindful that on a motion for summary judgment the inferences to be drawn from the factual material before the court must be viewed in the light most favorable to the party opposing the motion. But we also recognize that in order to raise a material issue of fact precluding the grant of a properly supported motion for summary judgment, more is necessary that mere assertions in the pleadings. Our careful examination of the record leads us to concur with the District Court that appellees bore their burden as to the nonexistence of any genuine factual issue, and that Bloom-garden offered nothing substantial to bar their request for summary judgment. It remains for us to determine whether the principles of substantive law governing recovery on contracts implied in fact and quasi-contracts were correctly applied. III Despite the marked dissimilarity of contracts implied in fact to quasi-contracts, their separate characteristics have been blurred by courts and commentators over the years. For any satisfactory understanding of Bloomgarden’s twofold legal approach, it is important to keep the two concepts clear and distinct. An implied-in-fact contract is a true contract, containing all necessary elements of a binding agreement; it differs from other contracts only in that it has not been committed to writing or stated orally in express" }, { "docid": "14619957", "title": "", "text": "in May 1955 was practically a demand for payment, as was the letter of July 15, 1955. This can hardly be classed as a dispute. We have always thought it takes two to make a dispute. But this was Tini-lateral. Months after settlement under the contract the contracting officer decided the Government was due some money and on May 25,1955, sent plaintiff a statement that it owed the Government $6,203.67, and demanded payment. Plaintiff was not asked to explain. It was told to pay. The con tracting officer did not ask for plaintiff’s position so that a dispute might arise. He merely took a shillalah and struck him down. Then, when plaintiff said he did not understand, the contracting officer on July 15, 1955, deigned to disclose his formula, but still demanded payment. He did give plaintiff an extension of time to look over its own books. But nowhere did he indicate that he would listen, or that it was open to dispute. As they say in the range country, he did not give plaintiff a chance to establish his brand. In the peculiar facts of this case we do not think the letter of July 15, 1955, was sufficient under the contract and Naval regulations to apprise plaintiff that it was a final decision, including findings of fact and notice under the disputes clause. Before a final decision is made, however, we feel that certain additional facts should be disclosed. The defendant’s motion for summary judgment is overruled and the case is returned to the trial commissioner for the purpose of hearing evidence or securing a stipulation of the parties on the issues, including the following questions: 1. How and in what way were the original bolts of cloth weighed, or their contents determined ? 2. Were all the bolts uniform in weight and amount of cloth? 3. What is the custom, if one prevailed in the trade at that time, of measuring the amount of cloth received and used — when cloth was furnished to the manufacturer — and how, in such circumstances, was the amount of scrap" }, { "docid": "15522595", "title": "", "text": "estate to his fair share of the “escrowed” commissions, merely because on that day that share was not ascertained. His right, arising in effect out of a contract, had so completely vested, regardless of whether it was then fixed as to amount, that if a new statute had expressly sought to destroy it, the statute would have been unconstitutional. Accordingly, such a new statute would, if possible, be interpreted to operate prospectively, not retroactively. Since a statute could not constitutionally destroy that right, obviously a court rule or order could not; any such court rule or order, if intended to operate retroactively, was therefore illegal, unconstitutional. (2) Nor, when the estate was closed in 1947, could a judge arbitrarily have decided that, for respondent’s services before September 22, 1938, he should receive compensation (together with his fees from other estates) at the rate of but $20,000 a year, irrespective of the actual share of the statutory commissions fairly allocable to that period. No more could the judge who entered the order now on appeal. The amendment of § 40, sub. a was prospective, otherwise it would be unconstitutional; the “standing rule” therefore became valid, with reference to referees’ commissions, only as to those earned after September 22, 1938. Accordingly, nothing in amended § 40, sub. a or in that “rule” empowered a judge to hold that the fair share previously earned was to be measured by the $20,000-a-year yardstick. For all we know, that fair share may be the entire amount of the “escrowed” commissions. What is such a share presents an issue of fact, which must be judicially and fairly, not arbitrarily, determined. It has not been so determined. The trial judge did not even purport to make such a determination, for the idea of apportionment originated with my colleagues. Nor was any evidence offered on which such a determination can rest, so that, even if the trial judge had made a finding on this issue, his finding would have been “clearly erroneous.” Moreover, he made no such finding; and, as under General Order 37; Fed.Rules Civ.Proc., Rule 52(a)," }, { "docid": "7957985", "title": "", "text": "plaintiff of his duties under the contract, leaving only the payment of his compensation by the defendant. The controlling question is, when is a commission to be regarded as “earned” under the contract between the parties: (a) When the goods are shipped, or (b) when “settlement” therefor, as defined by the contract, has been effected. The answer is to be found in Sections 3, 5, and 11 of the contract, when read together. Sec. 5 provides that commissions shall be credited to plaintiffs account “upon receipt by the company of settlement” as therein defined, either (1) cash; (2) notes and installment contract from a final purchaser or consumer; (3) evidence that the goods have been accepted by a final purchaser or consumer, having approved credit standing, to be paid for in cash within 30 days. This provision particularizes the general provisions of Sec. 3 of the contract, which simply provides generally that the plaintiff shall receive commissions on all sales in his territory. Until there has been a “settlement” the commissions have not been fully earned by the plaintiff, for it is as much a part of his duties to secure the settlements for the goods as it is to procure the orders therefor. This duty of the plaintiff to secure settlement for the goods is just as vital as the securing of the order, for unless a sale is followed up by an acceptable settlement it is of doubtful value. The contract provision that plaintiff should not be “credited” with a commission until settlement had been received by the company was no doubt designed to ensure the salesman’s continued interest in the transaction until final settlement, in which the company was vitally interested. Otherwise, commissions could be claimed indiscriminately on improvident sales, even though there was no real prospect of the company receiving a settlement. Even though the company, for bookkeeping purposes, tentatively credited the plaintiff with a commission when the goods were shipped, there has been no departure from the practice of withholding any settlement with the plaintiff for his commission until settlement with the ultimate purchaser, as" }, { "docid": "1497970", "title": "", "text": "this Order upon an agreement or understanding for a commission, percentage, brokerage, or contingent fee, * * The District Court granted summary judgment for the Government for $20,-411.68 plus interest, after reaching the necessary conclusion that no question of fact existed. Taylor v. Rederi A/S Volo, 374 F.2d 545, 549 (3rd Cir. 1967); Robin Construction Company v. United States, 345 F.2d 610, 614-615 (3rd Cir. 1965). In reaching this conclusion under F.R. Civ.P. 56, the District Court considered part of the record of the previous litigation in Browne v. R. & R. Engineering Co., 164 F.Supp. 315 (D.Del.1958), reversed in part 264 F.2d 219 (3rd Cir. 1959), decision on remand unreported, C.A. No. 1873 (D.Del. July 21, 1959). Explicitly not relying on a theory of collateral estoppel, the judge below considered the several opinions in Browne, and what he described as the “facts” of record in that litigation which he found uncontroverted by the appellants’ mere denial in their pleadings. Appellants filed no other documents except some interrogatories and a motion to compel further answers to such interrogatories. Browne v. R. & R. Engineering Co. involved a suit against R. & R. corporation by Edmund V. Browne to recover compensation for services rendered. No written contract or specific oral agreement for a fixed amount was proved, but, as we held in our decision at 264 F.2d 219, Browne was nonetheless entitled to recover for his services in quantum meruit. Part of the services, however, were “rendered pursuant to an agreement” for a contingent fee to be paid for “securing” a Government contract from Swinerton. As such payment for his services violated public policy as promulgated in an Executive Order providing: “Every contract * * * shall contain a warranty by the contractor * * * that no person * * * has been employed or retained to solicit or secure * * * [the] contract upon an agreement or understanding for a * * * contingent fee * * [Emphasis supplied.] R. & R. corporation could therefore resist payment for that portion of Browne’s services that represented such prohibited activity" }, { "docid": "3975979", "title": "", "text": "per month thereafter, except in the final month, in which 12,000 were to be delivered, all deliveries to be completed by July 31, 1953. Thus, if plaintiff began making deliveries commencing around October 1, 1952, on contract 18703, in order to complete the 50,000 units to be delivered by the end of that month on that contract, plaintiff would have approximately 4 months to prepare for the commencement of production. Each contract contained the following provision: 20. Covenant Against Contingent Fees The Contractor warrants that no person or selling agency has been employed or retained to solicit or secure this contract upon an agreement or understanding for a commission, percentage, brokerage, or contingent fee, excepting bona fide employees or bona fide established commercial or selling agencies maintained by the Contractor for the purpose of securing business. For breach or violation of this warranty the Government shall have the right to annul this contract without liability or in its discretion to deduct from the contract price or consideration the full amount of such commission, percentage, brokerage, or contingent fee. 17. By letter of May 26,1952, the same date as that of the three contracts, plaintiff requested Tucker to reduce his compensation with respect to the intrenching tools from $0,054 each 3 percent, as set forth in Tucker’s contract) to $0.02 each. However, by letter of June 5, 1952, Tucker rejected the request and stated he would “expect compensation based on $.054 on each of the 1,067,000 units, a total of $57,618.” Tucker stated that current cost estimates, as a result of the “very sizable amount of time and expense” spent by the Tucker organization, were now lower than those originally estimated. The letter went on to state: Previous estimates left $.184 each for profit and overhead. Present confirmed estimates leave $.36 each for profit and overhead, or a total in excess of $375,000.00. If prices had run the way it looked when you were in Chicago, most certainly I would have been the first to volunteer a cut on my part, but they haven’t, and since much of the saving is" }, { "docid": "3935247", "title": "", "text": "memorandum and the Statute of Frauds. The Court has little doubt that there was an oral contract between the parties dating back to the spring of 1970. Both sides have conceded to this fact at various times. The only question concerns the terms of that agreement. Koehring argues that it retained the plaintiff on a straight fee basis for his assistance on the trips to the Soviet Union and eastern Europe in 1970. Welt, on the other hand, argues that he was retained on a fee plus commission basis, with a commission coming due if his efforts in making contacts and providing other services culminated in a contract. In light of this dispute and the conflict evident in the affidavits, it is impossible to determine on summary judgment the scope of the contract between Koehring and Welt. It also is impossible to determine whether, if a contract on commission basis did exist, it required Welt to be the procuring cause of a sales agreement, or merely that the contract be traceable to Welt’s efforts. Even were these issues capable of resolution, the Court could not determine on the basis of the affidavits whether Welt’s performance entitled him to compensation. A major area of dispute between the parties involves the question of whether the April, 1972, sales agreement with Poland was traceable to the earlier negotiations in 1970 and 1971, of which Welt was a part. This is precisely the type of factual dispute that is inappropriate for summary resolution. Whether or not the merger clause in the last paragraph of the May 25, 1971, memorandum precludes recovery under an earlier oral agreement is a close question. Under Illinois law, this clause on its face seems adequate to require judgment for the defendant on Count I. Martindell v. Lake Shore National Bank, 15 Ill.2d 272, 154 N.E.2d 683 (1958); 12 I.L.P. 328. In this case, however, there is some question as to whether the memorandum is an accurate representation of the agreement between the parties. It was a unilateral document prepared and assigned by the defendant’s officer alone. In this situation," }, { "docid": "22080269", "title": "", "text": "those conditions does the 1983 contract require Gjivoje to pay commissions to Thompson Communications. Gjivoje had provided consulting services on the MasterCard project prior to its transfer and accepted MasterCard as a direct client. But he did not acquire the MasterCard project through Thompson Communication's failure to make commission payments to him. Both parties admit that Gjivoje was duly paid his commissions while he rendered consulting services. Instead, Gjivoje obtained the MasterCard project through the MasterCard Agreement, which indicated only that the project would be transferred “contrary to [the] agreement of April 1983.” This agreement did not contain a new commissions provision. Therefore, even if parts of the 1983 contract are still controlling Gjivoje had no duty to pay commissions for the MasterCard project. Plaintiffs argue that the 1983 contract implies that Gjivoje is to pay commissions for any accounts he receives from Thompson Communications regardless of the manner in which he receives them. They assert that reading the 1983 contract to require commissions only when the Company has been delinquent in its payments to Gjivoje would eviscerate the non-compete clause, because under such an interpretation Gji-voje “could violate the non-compete clause with impunity as [the Company] would be without remedy so long as [Thompson and the Company] were current on their obligations.” This argument is wholly unpersuasive. When faced with a violation of the non-compete clause, plaintiffs' remedy is simply to bring an action for breach of contract, not attempt to create a judicially crafted addendum to the contract originally agreed upon. We conclude therefore that the district court correctly found no triable issue of fact concerning plaintiffs’ MasterCard commissions claim, and that the order of summary judgment dismissing this claim was properly entered. B. The Profit Sharing Claim Plaintiffs’ second claim alleges a breach of the profit sharing provision of the 1983 contract when defendant failed to assign the MasterCard business to Networld, foreclosing the possibility of Networld realizing a profit. The profit sharing provision in the 1983 contract required “Networld to pay [Thompson] Vsth of Networld’s annual pre-tax profits (until $300,000 is paid) in exchange for [Thompson’s]" }, { "docid": "1156488", "title": "", "text": "PER CURIAM. In accordance with 10th Cir.R. 9(e) and Fed.R.App.P. 34(a), this appeal came on for consideration on the briefs and record on appeal. This action arises out of an employment contract under which plaintiff served as defendant’s western regional manager for a salary plus commission on sales. Prior to plaintiff’s completion of a major sale to the United States Air Force, defendant’s commission structure was modified, resulting in a substantial reduction in the commission ultimately, paid to plaintiff. Although he protested, plaintiff continued his employment with defendant. Sometime later, and shortly before an order for spare parts and a supplemental purchase order were placed by the Air Force, defendant terminated plaintiff’s employment. Plaintiff initially brought this diversity action asserting claims for breach of contract, quantum meruit, misrepresentation, and outrageous conduct. Following a lengthy procedural course, during which plaintiff’s claims were revised somewhat as a result of the district court’s grant of partial summary judgment for defendant, the case was tried to a jury, which found for defendant on plaintiff’s misrepresenta tion and implied contract (for commission on the spare parts order) claims but awarded plaintiff $5,000 on an implied contract theory regarding the supplemental purchase order. The district court entered judgment on the verdict on March 26, 1984. Plaintiff timely filed an original and an amended new trial motion challenging various substantive rulings by the district court, as well as a motion for attorney’s fees. On May 16, 1984, the new trial motions were disposed of, but the district court reserved determination of the amount of attorney’s fees to be awarded to plaintiff. The district court ultimately issued its final order regarding the fees issue on August 2,1984, and plaintiff filed his sole notice of appeal from the court’s post-trial orders on August 29, 1984. Defendant has moved for summary dismissal of this appeal as untimely, relying on the principle we first announced in Cox v. Flood, 683 F.2d 330 (10th Cir.1982). In Cox and several later cases, this court held that judgments finally disposing of the merits are appealable even though questions relating to attorney’s fees have been" }, { "docid": "13826196", "title": "", "text": "failure to appear at a Friday sales meeting. Among other things, general discussions of the week’s work, differences in pricing, and new methods of installation were discussed. On some occasions when meetings were held, very few salesmen participated. On other occasions the attendance would be good. It was customary at these meetings for salesmen to air their complaints, and criticisms were invited in order to better the relationship between the plaintiff and the salesmen. Discussions often developed around the week’s experiences concerning sales resistance and competitive pricing. 9. All contracts were closed in the corporation’s name and had to be approved by the plaintiff before installation was undertaken. Usually the credit of the customer was also a factor in determining whether the contract would be accepted. The plaintiff’s approval of con tracts was necessary before commissions were paid to the salesmen. 10. Cash sales were charged to the customers directly by the corporation. It was the policy of the company that if a cash customer failed to make payments on the contract, the commissions paid the salesman would be charged back against his account. However, about 95 percent of the company’s business was on credit, and the contracts and notes accompanying the contracts were discounted through banks in an arrangement where the company received all of its money. If a customer failed to keep up payments under this plan, the bank stood the loss rather than the company, and nothing was charged back to the salesman. 11. The salesmen received no guarantee of any remuneration or compensation, regardless of time or effort put into their selling activity. Compensation was on a commission basis computed on the gross amount of the contracts obtained. This applied both to the full-time and part-time salesmen. If, for some reason, a customer did not fulfill his obligation under the contract even after it was accepted, the salesman did not earn his commission, but when this happened the installation of plaintiff’s product had not taken place. 12. In addition to the compensation obtained on the commission basis, the plaintiff, in order to increase the incentive of" }, { "docid": "23647811", "title": "", "text": "compensation” for delays, plaintiffs are bound by it. Plaintiffs seek to avoid summary judgment by asserting that in making settlement that element of their claim now sued upon (loss of profit) was expressly reserved for subsequent consideration, that any claim for loss of profit would have been premature at the time of the Modification No. 10 agreement, since the contract was then incomplete, and that a claim such as theirs for unliquidated damages was not within the authority of the contracting officer. Plaintiffs’ contention that there was an express reservation of loss of profit is based on language in their letter of August 11, 1952, previously quoted: “This is not a claim for profit or additional profit; we merely wish to recover the amount of our loss on the project.” They contend that by this language they reserved a claim for loss of profit. Clearly this is not an express reservation of a claim for profit. In fact, we think it might more reasonably be read as a renunciation of any claim to profit. From the language plaintiffs used in their claim on August 11, 1952, it was natural and reasonable for the contracting officer to conclude that he had before him for consideration the plaintiffs’ entire claim. He recommended all eight items of the claim be allowed in full except for one item, that pertaining to extra overhead, which he recommended be reduced approximately $14,000. The contract price was increased according to these recommendations, and it can hardly be said that it was not a generous settlement when measured by the amount actually claimed. Yet the contracting officer’s recommendations as to the eight items actually presented might well have been different had he known that plaintiffs planned to present (if they did so plan) three years later a ninth item of alleged loss amounting to $81,000 which, stemming as it did from the same delays, by right should have been a part of the same equitable adjustment. He could not properly evaluate the claims before him without knowing that other claims were being reserved for future action. Having led" }, { "docid": "2538552", "title": "", "text": "to the bank, contending that under the terms of the agency contract between Coulter and the insurance company Coulter had forfeited all right to receive commissions on renewals. When the insurance company suspended payments to the bank, the unpaid balance of the loan to Coulter was $11,842.44, the principal sum in suit. There is no dispute about the controlling facts, and both sides have moved for summary judgment pursuant to Rule 56 of the Federal Rules of Civil Procedure, 28 U.S.C.A. The case has been submitted upon the record and thorough memorandum briefs. Coulter was employed originally by defendant in 1948, and the terms and conditions of his employment were set forth in a written contract, a copy of which is before the Court. The contract provided that he was to receive commissions on the premiums paid on insurance written by him, including commissions on renewal premiums paid by policy holders. Section 22 of the contract provided that if Coulter should misappropriate funds, he would be subject to immediate discharge and would forfeit all benefits under the contract, but that such discharge and forfeiture would not affect adversely any claims of the company against him. Section 26 of the contract authorized the company to offset against earned commissions of Coulter any indebtedness owed or becoming owed by Coulter to the company, regardless of whether due or not. Apparently, Coulter was an excellent insurance salesman, and by February 1964 his renewal commissions were amounting to several thousand dollars a year and were increasing steadily as the years went by. His expectancy of receiving future commissions on renewals on policies written or to be written by him had a present value in February 1964 of approximately $28,000. That expectancy may be referred to, somewhat inexactly, as Coulter’s “vested renewals.” In the month just mentioned Coulter appeared at the banking establishment of plaintiff and expressed a desire to borrow $15,000. When Coulter presented himself at the bank, he had in his possession a letter to him from Jack Watson, a superior employee of defendant with offices at Springfield, Illinois, to the effect that" }, { "docid": "21531263", "title": "", "text": "barred by the release which plaintiff executed April 5, 1974. This result is not harsh. Plaintiff could have pressed claim (i) before the asbca. Instead, it chose to limit the proceedings there to the question whether it was entitled to the amount of the oral settlement. By making this choice, plaintiff relinquished any entitlement which it might have had to the difference between the amount of the oral settlement and the amount of its original administrative claim. Based on the foregoing considerations, we hold that counts I and II of the petition fail to state a claim upon which relief can be granted. it is therefore ordered that defendant’s motion for summary judgment is granted and the petition is dismissed. Hereafter in the text the claim in this amount will sometimes be referred to as \"plaintiffs original administrative claim” or \"plaintiffs original claim under contract NOm-73611.” The Government acknowledged, in an internal memorandum written shortly after the settlement agreement was reached, that \"[a]n important factor in negotiation for the settlement was prompt/expeditious payment by the Government.” Kurz & Root Co., ASBCA No. 17146, 74-1BCA ¶ 10,543 at 49,937. Id. at 49,937. In October 1970, the House of Representatives Armed Services Investigating Subcommittee began an investigation of alleged corruption in Marine Corps procurement practices. Hearings were held by the subcommittee on July 20,21, and 22, 1971, during which time the testimony of Mr. Elmore, among others, was taken. In his testimony, Elmore admitted that on numerous occasions he had used for his personal entertainment the credit card of an employee of G. C. Dewey Corporation, a contractor doing business with the Marine Corps at the time. He also admitted having permitted a representative of plaintiff to pay his hotel bill when he made an official trip to plaintiff’s Milwaukee plant in April 1967. Elmore asserted, however, that he had reimbursed both contractors for all expenses involved. At the time of his use of the credit card of the Dewey Corporation employee, it appears that Dewey Corporation was represented in Government contract matters by Mr. Ross. See Report of the Armed Services" }, { "docid": "12692161", "title": "", "text": "had been sold at the option price, because his own testimony shows that he agreed, at the time the option was given, to accept $25,000, if there proved to be a shortage of timber and the owners on that account sold to Deal at a lower price; and he says that was the first intimation he ever had that there might be a smaller amount of timber than had been theretofore assumed. But he had then procured a purchaser who seemed desirous to buy and to whom the defendants were willing to give a sixty-day option. If plaintiff gives a truthful version of what occurred when this option was signed, as the jury might believe, we perceive no reason why he ttiay not enforce the agreement which he says was then made. Clearly, as we think, it was a question of fact for the jury. It is also contended that plaintiff is not entitled to compensation because the sale to Deal was not consummated within the limit of time fixed by the option contract. We are not impressed with the force of this contention. Plaintiff was not a party to that contract, and his rights are not to be determined by its provisions. His employment did not cease when the sixty days expired, and Deal declined to purchase at the option price. He appears to have participated in the subsequent negotiations and to have been actively related to the same until dispute arose as to his compensation. Nor could the defendants escape liability to him by assuming, when that dispute happened, to terminate his employment. The outstanding fact is that plaintiff procured the purchaser who actually bought the property and may fairly claim to have been the efficient agency in bringing about the sale. True, the sum accepted was not sufficient to entitle him to commissions under his original contract; but if the lower price resulted solely from a shortage of timber, for which plaintiff was in no wise responsible, he should not go unrewarded for his services in bringing the sellers and buyer together. Martin v. Holly, 104 N." }, { "docid": "5994204", "title": "", "text": "when they executed this writing, the parties orally agreed that the previous oral agreement was still their actual contract, that the writing was deliberately erroneous with respect to plaintiff’s commissions, and that the misstatement in that writing was made solely in order to “avoid any possible stigma which might result” from putting such a provision “in writing,” the defendant’s President stating that “his fears were based upon the criticism of contingent fee contracts.” Nothing in the record discloses whose criticism the defendant feared; but plaintiff, in his brief, says that defendant was apprehensive because adverse comments had been made in Congress of such contingent-fee arrangements in connection with war contracts. The parties subsequently executed further writings extending, for two three-month periods, their “agreement under date of October 31, 1941.” Through plaintiff’s efforts and expenditures of large sums for traveling expenses, defendant, within this extended period, procured contracts between it and companies supplying aircraft to the government for war purposes, the aggregate purchase price named in said contracts being $5,950,000. The defendant has refused to pay the plaintiff commissions thereon in the agreed amount (i.e., not less than three percent) but has paid him merely $8,950 (at the rate of $1,000 a month) and has offered him, by way of settlement, an additional sum of $9,000 which he has refused to accept as full payment. Defendant argues that the summary judgment was proper on the ground that, under the parol evidence rule, the court could not properly consider as relevant anything except the writing of October 31, 1941, which appears on its face to set forth a complete and unambiguous agreement between the parties. If defendant on this point is in error, then, if the plaintiff at a trial proves the facts as alleged by him, and no other defenses are successfully interposed, he will be entitled to a sum equal to 3% of $5,950,000. Were the parol evidence rule a rule of evidence, we could decide this question without reference to state court decisions. But the federal courts have held, in line with what has become the customary doctrine in" }, { "docid": "5994203", "title": "", "text": "3% nor more than 8% of the “purchase price of said contracts.” On October 31, 1941, at a meeting in Grand Rapids, Michigan, between plaintiff and defendant’s President, the latter, on behalf of his company, orally made an agreement with plaintiff substantially on the terms set forth in plaintiff’s letter, one of the terms being that mentioned in plaintiff’s letter as to commissions; it was orally agreed that the exact amount within the two percentages was to be later determined by the parties. After this agreement was made, the parties executed, in Grand Rapids, a written instrument dated October 31, 1941, appearing on its face to embody a complete agreement between them; but that writing omitted the provision of their agreement that plaintiff, if successful, was to receive a bonus varying from three to eight per cent; instead, there was inserted in the writing a clause that the $1,000 per month “will be full compensation, but the company may, if it desires, pay you something in the nature of a bonus.” However, at the time when they executed this writing, the parties orally agreed that the previous oral agreement was still their actual contract, that the writing was deliberately erroneous with respect to plaintiff’s commissions, and that the misstatement in that writing was made solely in order to “avoid any possible stigma which might result” from putting such a provision “in writing,” the defendant’s President stating that “his fears were based upon the criticism of contingent fee contracts.” Nothing in the record discloses whose criticism the defendant feared; but plaintiff, in his brief, says that defendant was apprehensive because adverse comments had been made in Congress of such contingent-fee arrangements in connection with war contracts. The parties subsequently executed further writings extending, for two three-month periods, their “agreement under date of October 31, 1941.” Through plaintiff’s efforts and expenditures of large sums for traveling expenses, defendant, within this extended period, procured contracts between it and companies supplying aircraft to the government for war purposes, the aggregate purchase price named in said contracts being $5,950,000. The defendant has refused to pay" }, { "docid": "13707556", "title": "", "text": "form’s sake, reallow the claim, the validity and extent of which have been already ascertained. And his meaning is further illustrated when analyzing the award of the junta. “Attend to its contents” he says; “ some of the items possibly grew out of contracts, either express or implied; others undoubtedly out of tort. That of the imprisonment of Mr. Meade certainly had no existence as a contract until the time of this award, after the date of the treaty. If we view that item as existing in the light of contract, there is an end of that matter, because it must have been tort until merged in the award or judgment; and then the judgment being the only evidence of the contract, the contract and the evidence of it are one and the same thing; both too late to he compensated or renounced under this treaty.” The commissioners therefore held that they could not entertain this claim of Mr. Meade, but they determined evidently to wink at the fact that the original claims were merged in and extinguished by “ the award or judgment,” as they themselves call it, and to allow Mr. Meade to exhume and prove them if he could. But the error of this course did not lie with the commissioners. When the executive officers of the government found that the grant of the Floridas had been made by Spain upon the express assurance and with the express understanding that this claim of an American citizen, adjudicated with extraordinary care at the instance and with the approval of his government, was to take the place of one which had existed at the date of the treaty, but which had been extinguished before its ratification, and was to be considered as a part of the consideration for making the cession and annulling the private grants, then the State Department should have withdrawn it from the commissioners, and eventually should have allowed this award of the Spanish commission and the several awards of the American commission to participate equally in the common fund. That the government paid away the" } ]

[ { "docid": "22726289", "title": "", "text": "nation, must embrace all issues about which information is needed or appropriate to enable the members of society to cope with the exigencies of their period.” Id., at 102. Shortly after the Thorn-hill decision, the Court identified a single category of communications that is constitutionally unprotected: communications “which by their very utterance inflict injury.” Chaplinsky v. New Hampshire, 315 U. S. 568, 572. Yet only a month after Chaplinsky, and without reference to that decision, the Court stated in Valentine v. Chrestensen, 316 U. S. 52, 54, that “the Constitution imposes no such restraint on government as respects purely commercial advertising.” For more than 30 years this “casual, almost offhand” statement in Chrestensen has operated to exclude commercial speech from the protection afforded by the First Amendment to other types of communication. Cammarano v. United States, 358 U. S. 498, 514 (Douglas, J., concurring). Today the Court ends the anomalous situation created by Chrestensen and holds that a communication which does no more than propose a commercial transaction is not “wholly outside the protection of the First Amendment.” Ante, at 761. But since it is a cardinal principle of the First Amendment that “government has no power to restrict expression because of its message, its ideas, its subject matter, or its content,” the Court's decision calls into immediate question the constitutional legitimacy of every state and federal law regulating false or deceptive advertising. I write separately to explain why I think today’s decision does not preclude such governmental regulation. The Court has on several occasions addressed the problem posed by false statements of fact in libel cases. Those cases demonstrate that even with respect to expression at the core of the First Amendment, the Constitution does not provide absolute protection for false factual statements that cause private injury. In Gertz v. Robert Welch, Inc., 418 U. S. 323, 340, the Court concluded that “there is no constitutional value in false statements of fact.” As the Court had previously recognized in New York Times Co. v. Sullivan, 376 U. S. 254, however, factual errors are inevitable in free debate, and the" } ]

[ { "docid": "12384633", "title": "", "text": "Maj. Op. at 23-24; rather, it is an especially poor substitute for reasoned judgment. The Supreme Court’s general reluctance to accept any free speech claims at the time country-of-origin labeling began certainly bears on the issue. See David M. Rabbant, The First Amendment in Its Forgotten Years, 90 Yale L.J. 514, 523 (1981) (“The overwhelming majority of prewar decisions in all jurisdictions rejected free speech claims, often by ignoring their existence.”). Modern “commercial speech” doctrine did not begin until the 1970s, when the Supreme Court formally extended First Amendment protection to commercial speech. See Va. State Bd. of Pharmacy, 425 U.S. at 762, 96 S.Ct. 1817. That “Congress has been imposing [country-of-origin] mandates since 1890,” Maj. Op. at 23, eighty-six years before commercial speech received explicit protection, thus tells us very little about the practice’s constitutionality. The Court’s terminology in these early years was something of a self-fulfilling prophecy; what we now call “commercial speech,” the court simply referred to as “commercial advertising” or some other business activity. See, e.g., Valentine v. Chrestensen, 316 U.S. 52, 54, 62 S.Ct. 920, 86 L.Ed. 1262 (1942) (denying protection for “purely commercial advertising”); Halter v. Nebraska, 205 U.S. 34, 41, 45, 27 S.Ct. 419, 51 L.Ed. 696 (1907) (referring to “mere advertisement”); see also Alex Ko-zinski & Stuart Banner, Response, The Anti-History and Pre-History of Commercial Speech, 71 Tex. L.Rev. 747, 756-57 (1993) (“But before 1971, no judge thought of the thing as commercial speech — they called it ‘advertising’ ..., or ‘soliciting and canvassing,’ or some such term that denoted a business activity rather than a form of expression.”). This linguistic choice not only reflected the court’s underlying thoughts and assumptions (i.e., that advertising was permissibly regulated as business conduct) but also likely influenced the litigating positions of parties. Litigants rarely raised First Amendment challenges to advertising restrictions — instead making substantive due process arguments by asserting restrictions affected their business rights. For example, in 1907, when faced with the constitutional validity of a state law criminalizing the use of an American flag emblem on labels, the litigants and the Court “ignored" }, { "docid": "11810442", "title": "", "text": "Once regarded as unprotected by the first amendment, see Valentine v. Chrestensen, 316 U.S. 52, 62 S.Ct. 920, 86 L.Ed. 1262 (1942), commercial speech, as noted, has since been brought within the sphere of constitutional protection. Virginia Pharmacy Bd., 425 U.S. at 770, 96 S.Ct. at 1829-30. Society has a strong interest “in the free flow of commercial information” critical to a free market economy, id. at 763, 96 S.Ct. at 1826, and it is this interest the first amendment vindicates in protecting commercial speech. Brown & Williamson, 778 F.2d at 43. However, “[fjalse, deceptive, or misleading advertising” does not serve that interest and thus this category of commercial speech “remains subject to restraint.” In re R.M.J., 455 U.S. 191, 200, 102 S.Ct. 929, 936, 71 L.Ed.2d 64 (1982). Kraft contends that by relying on its own subjective judgment that an ad, while literally true, implies a false message, the FTC chills nonmisleading, protected speech because advertisers are unable to predict whether the FTC will find a particular ad misleading. Advertisers can run sophisticated pre-dissemination consumer surveys and find no implied claims present, only to have the Commission determine in its own subjective view that consumers would perceive an implied claim. Indeed, Kraft maintains that is precisely what happened here. Even more troubling, Kraft maintains that the ads most vulnerable to this chilling effect are factual, comparative ads, like the Five Ounces of Milk campaign, of greatest benefit to consumers. See Virginia State Bd. of Pharmacy, 425 U.S. at 763-65, 96 S.Ct. at 1826-27 (noting that the “free flow” of comparative advertising is “indispensable” to intelligent consumer de-cisionmaking). The net result of the Commission’s subjective approach will be an influx of soft “feel good” ads designed to avoid unpredictable FTC decisions. See Richard M. Schmidt, Jr. & Robert C. Burns, Proof or Consequences: False Advertising and the Doctrine of Commercial Speech, 56 U.Cin.L.Rev. 1273, 1293 (1988); Note, The Risk of Chill: A Cost of the Standards Governing the Regulation of False Advertising Under Section 43(a) of the Lanham Act, 77 Va.L.Rev. 339, 349 (1991). The way to avoid this chilling" }, { "docid": "9378848", "title": "", "text": "96 S.Ct. 1817 (emphasis added). They were part of a process by which CDI conveyed facts and expressed opinion. Cf. New York Times Co. v. Sullivan, 376 U.S. 254, 266, 84 S.Ct. 710, 11 L.Ed.2d 686 (1964) (\"The publication here was not a 'commercial' advertisement in the sense in which the word was used in [Valentine v.] Chrestensen [, 316 U.S. 52, 62 S.Ct. 920, 86 L.Ed. 1262 (1942) (holding that commercial advertising was then without First Amendment protection)]. It communicated information, expressed opinion, recited grievances, protested claimed abuses, and sought financial support on behalf of a movement whose existence and objectives are matters of the highest public interest and concern.”) Nevertheless, for purposes of this analysis we assume that CDI's advertisements did \"no more than propose a commercial transaction, ” Goldberg, 69 F.Supp.2d at 402, and were therefore \"commercial speech” for purposes of First Amendment analysis. .The Court has said that \"commonsense differences [between commercial speech and \"other forms”] ... suggest that a different degree of protection is necessary to insure that the flow of truthful and legitimate commercial information is unimpaired.” Virginia State Bd. of Pharmacy, 425 U.S. at 771-72 n. 24, 96 S.Ct. 1817. Among these differences is the fact that “commercial speech ... may be more easily verifiable by its disseminator than ... news reporting or political commentary, in that ordinarily the advertiser seeks to disseminate information about a specific product that he himself provides and presumably knows more about than anyone else. Also, commercial speech may be more durable than other kinds.” Id. at 772 n. 24, 96 S.Ct. 1817. These differences are relevant insofar as they address permissible regulation of the truth of any claims or representations about the products offered in advertisements for tapes and transcripts. But they may be irrelevant to the determination of whether such advertisements must be accepted for cablecast on public access channels. . “Leased channels\" that cable operators are required by federal law to make available to parties unaffiliated with the operator, see 47 U.S.C. § 532(b)(1), are, by contrast, typically the subject of a commercial lease between" }, { "docid": "11810441", "title": "", "text": "advertising. See, e.g., Sandoz Pharmaceuticals Corp. v. Richardson-Vicks, Inc., 902 F.2d 222, 228 (3d Cir.1990); Procter & Gamble Co. v. Chesebrough-Pond’s Inc., 588 F.Supp. 1082, 1094 (S.D.N.Y.), affd, U1 F.2d 114 (2d Cir.1984). And the Commission’s expertise in deceptive advertising cases, Kraft’s protestations notwithstanding, undoubtedly exceeds that of courts as a general matter. That false advertising cases constitute a small percentage of the FTC’s overall workload does not negate the fact that significant resources are devoted to such cases in absolute terms, nor does it account for the institutional expertise the FTC gains through investigations, rulemak-ings, and consent orders. The Commissioners’ personal experiences quite obviously affect their perceptions, but it does not follow that they are incapable of predicting whether a particular claim is likely to be perceived by a reasonable number of consumers. 2. The crux of Kraft’s first amendment argument is that the FTC’s current subjective approach chills some truthful commercial speech. Kraft acknowledges the novelty of its argument, but asserts that the issue warrants consideration in light of evolving commercial speech doctrine. Once regarded as unprotected by the first amendment, see Valentine v. Chrestensen, 316 U.S. 52, 62 S.Ct. 920, 86 L.Ed. 1262 (1942), commercial speech, as noted, has since been brought within the sphere of constitutional protection. Virginia Pharmacy Bd., 425 U.S. at 770, 96 S.Ct. at 1829-30. Society has a strong interest “in the free flow of commercial information” critical to a free market economy, id. at 763, 96 S.Ct. at 1826, and it is this interest the first amendment vindicates in protecting commercial speech. Brown & Williamson, 778 F.2d at 43. However, “[fjalse, deceptive, or misleading advertising” does not serve that interest and thus this category of commercial speech “remains subject to restraint.” In re R.M.J., 455 U.S. 191, 200, 102 S.Ct. 929, 936, 71 L.Ed.2d 64 (1982). Kraft contends that by relying on its own subjective judgment that an ad, while literally true, implies a false message, the FTC chills nonmisleading, protected speech because advertisers are unable to predict whether the FTC will find a particular ad misleading. Advertisers can run sophisticated pre-dissemination" }, { "docid": "15531885", "title": "", "text": "have caused irreparable harm to the plaintiff and that the plaintiff’s remedy at law is inadequate. There is no evidence before this court to determine whether any movie shown by any exhibitor or classified by any of the offending labels is or is not within the category of “obscene,” nor whether any of the movies if shown for pay would violate the statutes of North Carolina. However, this court is not trying an obscenity case; prosecution for obscenity is a state matter. This court is hearing simply a question whether the actions of the Sheriff violate the constitutional guaranties of free speech and freedom of the press under the circumstances herein shown. Motion pictures, including those displayed commercially, are a type of speech or expression the display of which is protected by the First and Fourteenth .Amendments. Joseph Burstyn, Inc. v. Wilson, 343 U.S. 495, 501-502, 72 S.Ct. 777, 96 L.Ed. 1098 (1952). Obscenity is not protected by the First Amendment. Although obscenity is a form of speech or expression, a majority of the Supreme Court have thus far been consistent in holding that if speech or expression is obscene it is a proper subject of governmental regulation. States can still make obscenity unlawful. Roth v. United States, 354 U.S. 476, 77 S.Ct. 1304, 1 L.Ed.2d 1498 (1957); Tyrone, Inc. v. Wilkinson, 410 F.2d 639 (4th Cir., 1969). Serious problems are presented by the procedures through which alleged obscenity may be apprehended and its purveyors prosecuted. As far as the seizure of allegedly obscene film is concerned, it is now clear that law enforcement authorities may not lawfully seize offending film without first conducting an adversary hearing with the burden on the prosecution, at which an opportunity is afforded the defendant to test the question of obscenity in a preliminary way before a judicial officer. The proceedings must be “designed to focus searchingly on the question of obscenity.” Marcus v. Search Warrants, 367 U.S. 717, 732, 81 S.Ct. 1708, 1716, 6 L.Ed.2d 1127 (1961). The adversary hearing must be conducted before the issuance of the warrant. A Quantity of Copies" }, { "docid": "10785578", "title": "", "text": "v. Wilson, 343 U.S. 495, 503, 72 S.Ct. 777, 96 L.Ed. 1098 (1952).” Red Lion, supra, at 386-387, 89 S.Ct. at 1805. (Emphasis added.) “Where there are substantially more individuals who want to broadcast than there are frequencies to allocate, it is idle to posit an unabridgeable First Amendment right to broadcast comparable to the right of every individual to speak, write, or publish.” Red Lion, supra, at 388, 89 S.Ct. at 1806. “In view of the scarcity of broadcast frequencies, the Government’s role in allocating those frequencies, and the legitimate claims of those unable without governmental assistance to gain access to those frequencies for expression of their views, we hold the regulations and ruling at issue here are both authorized by statute and constitutional.” Red Lion, supra, at 400-401, 89 S.Ct. at 1812. (Emphasis added.) Unlike broadcasting, the publication of a newspaper is not a government conferred privilege. As we have said, the press and the government have had a history of disassociation. We can find nothing in the United States Constitution, any federal statute, or any controlling precedent that allows us to compel a private newspaper to publish advertisements without editorial control of their content merely because such advertisements are not legally obscene or unlawful. In evaluating appellant’s claim we note that its commercial advertisement was printed by the appellee, save for the deletion of items not essential to appellant’s sales message and not altering the fundamental characteristics of appellant’s presentation. This type of commercial exploitation is subject to less protection than other types of speech. Valentine v. Chrestensen, 316 U.S. 52, 62 S.Ct. 920, 86 L.Ed. 1262 (1942). Affirmed. . See also, Resident Participation of Denver, Inc. v. Love, 322 F.Supp. 1100, (D.Colo., 1971), decided by a three-judge panel after oral argument herein. An action against two Denver daily newspapers to force the publication of advertising of a boycott of a rendering plant was dismissed. . This is not to say that a court may not, in the interest of assuring a fair trial, exclude the news media from a courtroom. See Information Manual for the Bar," }, { "docid": "1763944", "title": "", "text": "umbilical cord of the other and cannot exist alone. To allow censorship, or the abridgment of one, would inevitably impact the free flow of ideas and information consequent to the release of the other. The Supreme Court has in fact expressly held “that expression by means of motion pictures is included within the free speech and free press guaranty of the First and Fourteenth Amendments.” Joseph Burstyn, Inc. v. Wilson, 343 U.S. 495, 502, 72 S.Ct. 777, 781, 96 L.Ed. 1098 (1951). The Court explained that while “each method [of speech] tends to present its own peculiar problems” the “basic principles of freedom of speech and the press, like the First Amendment’s command, do not vary. Those principles ... make freedom of expression the rule.” The court did not find it relevant that a motion picture, like a book or newspaper, is often designed to entertain as well as to inform. Id. at 501, 72 S.Ct. at 780. Justice Clark wrote that such considerations simply do not prevent “them from being a form of expression whose liberty is safeguarded by the First Amendment.” Id. The same considerations are present here and this court finds no reason to make an exception for the distinct creative and expressive activity essential to the production of a film. The need to consider film and filmmak-ing as a protected activity is even more essential because of the ever increasing importance of movies to American culture. While the motion picture has always formed a vital part of the fabric of our society and our collective memories as Americans, its importance has consistently increased as the circulation of newspapers and other written materials has consistently declined. Film has in many ways, as never before, replaced the written work as a vehicle for the transmission of ideas, viewpoints and opinions. It is a vital medium that serves to stimulate important political and social debate. In support of this conclusion the court takes judicial notice of the controversy surrounding the release of Martin Scorcese’s “Last Temptation of Christ” and Spike Lee’s “Do The Right Thing.” Both films ignited intense" }, { "docid": "12039825", "title": "", "text": "a “public official” could not recover for libelous statements unless he could prove that the statements were made with “actual malice.” Actual malice was defined by the Court as “knowledge that [the statement] was false or reckless disregard of whether it was false or not.” Subsequent Supreme Court decisions expanded this rule to include “public figures” and matters of “general or public interest.” As stated previously, defendant contends that the credit report falls within the scope of matters of public or general interest and consequently is afforded the First Amendment protection of free speech. We hold that matters of general and public interest do not include libelous and defamatory publications of such a commercial nature as credit reports. The concept of purely commercial speech as an area where First Amendment protection does not apply was originally articulated in Valentine v. Chrestensen, 316 U.S. 52, 62 S.Ct. 920, 86 L.Ed. 1262 (1942). In Valentine a city ordinance that banned the distribution of handbills soliciting a submarine tour was challenged as violative of First Amendment rights. The Supreme Court upheld the ordinance declaring that commercial speech was unprotected by the First Amendment. It is important to note that the transaction in Valentine was nothing more than the solicitation of a commercial venture. While the Valentine decision might have been subsequently weakened in some respects, the commercial speech doctrine was revitalized recently in Pittsburgh Press Co. v. Pittsburgh Com’n on Human Relations, 413 U.S. 376, 93 S.Ct. 2553, 37 L.Ed.2d 669. The Court in Pittsburgh Press upheld an ordinance that prohibited newspapers from referring to sex in employment headings in want ads. The Court distinguished New York Times, pointing out that the Court there was concerned with a publication that “communicated information, expressed opinion, recited grievances, protested claimed abuses and sought financial support on behalf of a movement whose existence and objectives are matters of the highest public interest and concern.” The Court found that the commercial advertisements were more in accordance with the principles of Valentine than with those of New York Times because the commercial advertisements did not express such social" }, { "docid": "14982405", "title": "", "text": "” should be subject to relaxed Zauderer review, which it satisfies. Even under the less permissive test for restrictions on commercial speech established in Central Hudson Gas & Electric Corp. v. Public Service Commission, 447 U.S. 557, 100 S.Ct. 2343, 65 L.Ed.2d 341 (1980), I would find that the Rule survives. Because I would conclude that the Conflict Minerals Rule works no violation of the First Amendment, I respectfully disagree with the contrary decision reached by my colleagues. I. An understanding of the unique treatment afforded to compelled disclosures in the area of commercial speech substantially informs the proper resolution of the First Amendment challenge in this case. As we recognized -in AMI, 760 F.3d at 21-22, and as the Supreme Court has emphasized, the starting premise in all commercial speech cases is the same: the First Amendment values commercial speech for different reasons than non-commercial speech. Until 1976, commercial speech received no constitutional protection at all. See Valentine v. Chrestensen, 316 U.S. 52, 62 S.Ct. 920, 86 L.Ed. 1262 (1942), overruled by Va. State Bd. of Pharmacy v. Va. Citizens Consumer Council, Inc., 425 U.S. 748, 96 S.Ct. 1817, 48 L.Ed.2d 346 (1976). When the Supreme Court eventually extended “First Amendment protection to commercial speech,” it did so primarily because of the “value to consumers of the information such speech provides.” Zauderer, 471 U.S. at 651, 105 S.Ct. 2265. The Court protected commercial speech against unwarranted restriction through the framework set out in Central Hudson. 447 U.S. at 564, 100 S.Ct. 2343. Outside the context of commercial speech, the protections applicable to restrictions on speech directly mirror the protections applicable to compelled speech. Compelled speech, the Supreme Court has observed, generally is “as violative of the First Amendment as prohibitions on speech.” Zauderer, 471 U.S. at 650, 105 S.Ct. 2265. That symmetry does not exist, however, in the area of commercial speech. In that context, there are “material differences between disclosure requirements and outright prohibitions on speech.” Id. When the government requires disclosure of “purely factual and uncontroversial information” about products in the commercial sphere, “the First Amendment interests" }, { "docid": "96043", "title": "", "text": "forcing the government into “an all-or-nothing choice” where “it might not open the property at all.” AETC, — U.S. at -, 118 S.Ct. at 1642. The Court addressed a similar attempt to transform speech in Valentine v. Chrestensen, 316 U.S. 52, 62 S.Ct. 920, 86 L.Ed. 1262 (1942). The petitioner in Valentine attempted to evade a restriction on commercial advertising by placing a protest against a city law on the back of a handbill containing a commercial advertisement. The Court rejected this attempt to convert a commercial advertisement into a public protest, concluding: that the affixing of the protest against official conduct to the advertising circular was with the intent, and for the purpose, of evading the prohibition of the ordinance. If that evasion were successful, every merchant who desires to broadcast advertising leaflets in the streets need only append a civic appeal, or a moral platitude, to achieve immunity from the law’s command. 316 U.S. at 55, 62 S.Ct. 920. Although Valentine’s holding that the First Amendment does not protect commercial advertising has not survived, see Cincinnati v. Discovery Network, Inc., 507 U.S. 410, 420-21, 113 S.Ct. 1505, 123 L.Ed.2d 99 (1993), the Court has continued to reject attempts to evade a regulation by appending a message aimed at transforming the speech. In Board of Trustees of State Univ. of N.Y. v. Fox, 492 U.S. 469, 109 S.Ct. 3028, 106 L.Ed.2d 388 (1989), the Court rejected another attempt to transform speech by combining commercial and noncommercial elements. The prohibition at issue in Fox banned the operation of commercial enterprises on state university campuses. Students challenged the prohibition on First Amendment grounds because they were unable to host “Tupperware parties” to sell housewares. According to the students, the parties included presentations on “how to be financially responsible and how to run an efficient home.” 492 U.S. at 474, 109 S.Ct. 3028. Thus, the students asserted, the commércial and noncommercial speech were “inextricably intertwined” and must therefore be classified as commercial speech. The Court stated that the “level of First Amendment scrutiny must depend upon the nature of the speech taken" }, { "docid": "12384634", "title": "", "text": "52, 54, 62 S.Ct. 920, 86 L.Ed. 1262 (1942) (denying protection for “purely commercial advertising”); Halter v. Nebraska, 205 U.S. 34, 41, 45, 27 S.Ct. 419, 51 L.Ed. 696 (1907) (referring to “mere advertisement”); see also Alex Ko-zinski & Stuart Banner, Response, The Anti-History and Pre-History of Commercial Speech, 71 Tex. L.Rev. 747, 756-57 (1993) (“But before 1971, no judge thought of the thing as commercial speech — they called it ‘advertising’ ..., or ‘soliciting and canvassing,’ or some such term that denoted a business activity rather than a form of expression.”). This linguistic choice not only reflected the court’s underlying thoughts and assumptions (i.e., that advertising was permissibly regulated as business conduct) but also likely influenced the litigating positions of parties. Litigants rarely raised First Amendment challenges to advertising restrictions — instead making substantive due process arguments by asserting restrictions affected their business rights. For example, in 1907, when faced with the constitutional validity of a state law criminalizing the use of an American flag emblem on labels, the litigants and the Court “ignored potential free speech claims.” Rabbant, supra at 531; see Halter, 205 U.S. at 38, 27 S.Ct. 419; Kozinski & Banner, supra at 763 (“No speech-related claim was made in Halter, probably ... because the litigants didn’t conceive of bottle-labeling as speech.”). Rather, the defendants attacked the statute as repugnant to the Equal Protection and Due Process Clauses, challenges rejected by the Court. See Halter, 205 U.S. at 39, 27 S.Ct. 419; see also Rabbant, supra at 531 n. 69. When the Court repeatedly referred to “mere advertisement,” Halter, 205 U.S. at 41, 45, 27 S.Ct. 419, it did so in the context of analyzing substantive due process and property rights, not speech. When at last the Supreme Court formally addressed the protection of “advertising” (again, its term), it noted, without citation, it was “clear that the Constitution imposes no such restraint on government as respects purely commercial advertising.” Chrestensen, 316 U.S. at 54, 62 S.Ct. 920. “[T]his suggests that in 1942, the Justices considered the question whether the First Amendment has any application to advertising" }, { "docid": "5183790", "title": "", "text": "is justified by a compelling government interest and is narrowly drawn to serve that interest.” Id. (citing R.A.V. v. City of St Paul, 505 U.S. 377, 395, 112 S.Ct. 2538, 120 L.Ed.2d 305 (1992)). However, certain types of speech, such as obscenity, incitement, and fighting words, have been deemed unworthy of such heightened scrutiny, and are considered “unprotected speech.” See Brown, 131 S.Ct. at 2733 (discussing categories of unprotected speech). Thus, when the government restricts speech, the court must evaluate what kind of speech it is and what level of protection is due that type of speech. Over the years, the Supreme Court has sought to identify how much and what level of protection the First Amendment provides for so-called “commercial speech,” defined as “expression related solely to the economic interests of the speaker and its audience.” Cent Hudson Gas & Elec. Corp. v. Pub. Serv. Comm’n, 447 U.S. 557, 562, 100 S.Ct. 2343, 65 L.Ed.2d 341 (1980). Initially, the Court indicated that “purely commercial advertising” might be entirely unprotected. Valentine v. Chrestensen, 316 U.S. 52, 54, 62 S.Ct. 920, 86 L.Ed. 1262 (1942) (observing that “the Constitution imposes no ... restraint on government as respects purely commercial advertising”). However, a quarter of a century later, the Court decided that commercial speech was not outside the realm of constitutional protection, observing that “speech does not lose its First Amendment protection because money is spent to project it.” Virginia Bd. of Pharm. v. Virginia Citizens Consumer Council, Inc., 425 U.S. 748, 761, 96 S.Ct. 1817, 48 L.Ed.2d 346 (1976). While the Court did not specify what level of protection commercial speech was entitled to, it did conclude that “whatever may be the proper bounds” of permissible government restrictions, they were “plainly exceeded” in that case. Id. at 771, 96 S.Ct. 1817. A few years later, the Court set forth a general framework for evaluating whether a particular government restriction on commercial speech was constitutional. See Central Hudson, 447 U.S. at 566, 100 S.Ct. 2343. The Court established a four-step test: For commercial speech to come [under the First Amendment], it at" }, { "docid": "1763943", "title": "", "text": "simply cannot afford to become embroiled in time consuming complex litigation while producing a motion picture. Indeed, in this case, such considerations compelled Warner to immediately seek another venue. The fact that they found one does not impact consideration of whether their banishment from Essex County was, in the first instance, constitutionally justified. Rather, it dramatically illustrates why in the future a film company is likely to refrain from engaging in a protected activity and, therefore, why plaintiffs should be allowed third party standing to challenge the defendant’s conduct. It is also true that a court must always be conscious of the danger of chilling free speech and expression. In this case, such considerations counsel that the court find third party standing. The court rejects the suggestion that the production of a motion picture is an undefined, amorphous preparatory activity entitled to less protection than other forms of speech and expressive activity. The fact is that the final product, the film, cannot be artificially severed from the activity surrounding its creation. The one is the umbilical cord of the other and cannot exist alone. To allow censorship, or the abridgment of one, would inevitably impact the free flow of ideas and information consequent to the release of the other. The Supreme Court has in fact expressly held “that expression by means of motion pictures is included within the free speech and free press guaranty of the First and Fourteenth Amendments.” Joseph Burstyn, Inc. v. Wilson, 343 U.S. 495, 502, 72 S.Ct. 777, 781, 96 L.Ed. 1098 (1951). The Court explained that while “each method [of speech] tends to present its own peculiar problems” the “basic principles of freedom of speech and the press, like the First Amendment’s command, do not vary. Those principles ... make freedom of expression the rule.” The court did not find it relevant that a motion picture, like a book or newspaper, is often designed to entertain as well as to inform. Id. at 501, 72 S.Ct. at 780. Justice Clark wrote that such considerations simply do not prevent “them from being a form of expression" }, { "docid": "10529418", "title": "", "text": "S.Ct. at 3035. The Court described its “reasonable fit” approach as one “that represents not necessarily the single best disposition but one whose scope is ‘in proportion to the interest served’.... Here we require the government goal to be substantial, and the cost to be carefully calculated.” Id. We presume that the cost referred to by the Fox Court is that which would accrue because of the burden placed on the commercial speech, and that the Fox test requires that such costs must be outweighed by the benefits of the asserted regulation. We can only make that calculation if we know what value the Court has placed on commercial speech, and it is to that consideration that we now turn. C Commercial speech has unquestionably been protected by the first amendment since the Supreme Court in Virginia State Board of Pharmacy v. Virginia Citizens Consumer Council, Inc., 425 U.S. 748, 96 S.Ct. 1817, 48 L.Ed.2d 346 (1976), held that the Court’s prior offhand statement in Valentine v. Chrestensen, 316 U.S. 52, 62 S.Ct. 920, 86 L.Ed. 1262 (1942), that “purely commercial advertising” was not protected did not establish an exception to first amendment protection. The Court recognized in Virginia Citizens that commercial speech, though it may not touch upon the highest topics of human existence (indeed, much protected speech does not), is important to the public welfare. The Court noted in Virginia Citizens that speech uttered solely for economic motives has high value to those who listen to it. “As to the particular consumer’s interest in the free flow of commercial information, that interest may be as keen, if not keener by far, than his interest in the day’s most urgent political debate.” Virginia Citizens, 425 U.S. at 763, 96 S.Ct. at 1826. In recognizing the importance of commercial speech to private economic activity, the Court was once again affirming that the “right of the individual to contract, to engage in any of the common occupations of life, to acquire useful knowledge” is “essential to the orderly pursuit of happiness by free men.” Board of Regents of State College v." }, { "docid": "12161189", "title": "", "text": "both selectivity and illegal purpose were proved in this case. I would therefore reverse and remand for reconsideration by the trial court. . The principal difference between Judge Logan and me is not that we emphasize different trial court findings, but that he would affirm a criminal conviction based on conflicting findings by the trial court on the key issue. I would not. The trial court should have an opportunity to clear up its findings under proper guidelines. . The right to protest against government policies lies at the core of first amendment values, and the debate in this area of the law is whether commercial speech and recreational speech are entitled to the same constitutional protection as protest. See, e. g., Valentine v. Chres-tensen, 316 U.S. 52, 62 S.Ct. 920, 86 L.Ed. 1262 (1942) (Constitution imposes no restraints on government restrictions of purely commercial advertising); Virginia State Board of Pharmacy v. Virginia Citizens Consumer Council, Inc., 425 U.S. 748, 96 S.Ct. 1817, 48 L.Ed.2d 346 (1976) (commercial speech is within protective ambit of the first amendment); Joseph Burs-tyn, Inc. v. Wilson, 343 U.S. 495, 502, 72 S.Ct. 777, 780, 96 L.Ed. 1098 (1952) (line between the informing and the entertaining too elusive to be drawn, therefore as general rule “expression by means of motion pictures [must be] included within the free speech and free press guaranty of the First and Fourteenth Amendments.”); Jackson & Jeffries, Commercial Speech: Economic Due Process and the First Amendment, 65 Va.L.Rev. 1 (1979) (and cases and commentaries discussed therein). . Furthermore, tax protest is neither modem nor American in its origin. Many people venerate one who commented on the publicans who collected the taxes in his time. And when the Pharisees saw it, they said unto his disciples, Why eateth your Master with publicans and sinners? But when Jesus heard that, he said unto them, They that be whole need not a physician, but they that are sick. ... Iam not come to call the righteous, but sinners to repentance. Matthew 9:11-13." }, { "docid": "14982404", "title": "", "text": "public scrutiny, the same is true of all sorts of entirely permissible requirements to disclose factual informa tion to consumers (high calorie counts or low nutritional value, for instance). When a law mandates disclosure of that sort of “particular factual information” about a company’s product, the Supreme Court has said, the company has only a “minimal” cognizable interest in withholding public disclosure. Zauderer, 471 U.S. at 651, 105 S.Ct. 2265. By contrast, the scarlet “A” affixed to Hester Prynne’s gown conveyed personal information that she had a strong and obvious interest in withholding from the public. In that sense, requiring a company to disclose product information in the commercial marketplace is not the same as requiring Hester Prynne to “show [her] scarlet letter in the [town] marketplace.” Nathaniel Hawthorne, The Scarlet Letter 63 (Laird & Lee 1892). I would therefore hold that the favored treatment normally afforded to compelled factual disclosures in the commercial arena applies to the Conflict Minerals Rule. The obligation to use the term “not been found to be ‘DRC conflict free’ ” should be subject to relaxed Zauderer review, which it satisfies. Even under the less permissive test for restrictions on commercial speech established in Central Hudson Gas & Electric Corp. v. Public Service Commission, 447 U.S. 557, 100 S.Ct. 2343, 65 L.Ed.2d 341 (1980), I would find that the Rule survives. Because I would conclude that the Conflict Minerals Rule works no violation of the First Amendment, I respectfully disagree with the contrary decision reached by my colleagues. I. An understanding of the unique treatment afforded to compelled disclosures in the area of commercial speech substantially informs the proper resolution of the First Amendment challenge in this case. As we recognized -in AMI, 760 F.3d at 21-22, and as the Supreme Court has emphasized, the starting premise in all commercial speech cases is the same: the First Amendment values commercial speech for different reasons than non-commercial speech. Until 1976, commercial speech received no constitutional protection at all. See Valentine v. Chrestensen, 316 U.S. 52, 62 S.Ct. 920, 86 L.Ed. 1262 (1942), overruled by Va. State" }, { "docid": "9661158", "title": "", "text": "that professional speech receives diminished protection, and, accordingly, that prohibitions of professional speech are constitutional only if they directly advance the State’s interest in protecting its citizens from harmful or ineffective professional practices and are no more extensive than necessary to serve that interest. In explaining why this level of protection is appropriate, we find it helpful to compare professional speech to commercial speech. For over 35 years, the Supreme Court has recognized that commercial speech—truthful, non-misleading speech that proposes a legal economic transaction—enjoys diminished protection under the First Amendment. See Ohralik, 436 U.S. at 454-59, 98 S.Ct. 1912. Though such speech was at one time considered outside the scope of the First Amendment altogether, see Valentine v. Chrestensen, 316 U.S. 52, 54, 62 S.Ct. 920, 86 L.Ed. 1262 (1942), the Supreme Court reversed course in Bigelow v. Virginia, 421 U.S. 809, 818-26, 95 S.Ct. 2222, 44 L.Ed.2d 600 (1975), and recognized that commercial speech enjoys some degree of protection. The Court has since explained that commercial speech has value under the First Amendment because it facilitates the “free flow of commercial information,” in which both the intended recipients and society at large have a strong interest. Virginia State Bd. of Pharmacy v. Virginia Citizens Consumer Council, Inc., 425 U.S. 748, 763-64, 96 S.Ct. 1817, 48 L.Ed.2d 346 (1976) (“Virginia Pharmacy ”); see also Central Hudson Gas & Elec. Corp. v. Public Serv. Comm. of New York, 447 U.S. 557, 561-62, 100 S.Ct. 2343, 65 L.Ed.2d 341 (1980) (explaining that commercial speech “assists consumers and furthers the societal interest in the fullest possible dissemination of information”). In fact, the Court has recognized that a consumer’s interest in this information “may be as keen, if not keener by far, than his interest in the day’s most urgent political debate.” Virginia Pharmacy, 425 U.S. at 763, 96 S.Ct. 1817. Despite recognizing the value of commercial speech, the Court has “not discarded the ‘common-sense’ distinction” between commercial speech and other areas of protected expression. Ohralik, 436 U.S. at 455-56, 98 S.Ct. 1912 (quoting Virginia Pharmacy, 425 U.S. at 771 n. 24, 96 S.Ct." }, { "docid": "6163004", "title": "", "text": "of entertainment are so inherently expressive as to fall within the First Amendment’s ambit regardless of their quality. For example, in Ward v. Rock Against Racism, 491 U.S. 781, 109 S.Ct. 2746, 105 L.Ed.2d 661 (1989), the Supreme Court flatly ruled that “[mjusic, as a form of expression and communication, is protected under the First Amendment.” Id. at 790, 109 S.Ct. at 2753. Justice Kennedy explained: Music is one of the oldest forms of human expression. From Plato’s discourse in the Republic to the totalitarian state in our own times, rulers have known its capacity to appeal to the intellect and to the emotions, and have censored musical compositions to serve the needs of the state. The Constitution prohibits any like attempts in our own legal order. Id. (citations omitted). Motion pictures, too, are included within the free speech guarantee of the First Amendment. The Court emphasized in Joseph Burstyn, Inc. v. Wilson, 343 U.S. 495, 72 S.Ct. 777, 96 L.Ed. 1098 (1952), that “[t]he importance of motion pictures as an organ of public opinion is not lessened by the fact that they are designed to entertain as well as to inform.” Id. at 501, 72 S.Ct. at 780; see also Young v. American Mini Theatres, Inc., 427 U.S. 50, 62, 96 S.Ct. 2440, 2448, 49 L.Ed.2d 310 (1976) (motion picture theaters involve communication protected by the First Amendment, but the state can regulate their secondary effects). Even crude street skits come within the First Amendment’s reach. In overturning the conviction of an amateur actor for wearing a military uniform in violation of a federal statute, the Supreme Court discussed the statute’s “theatrical production” exception. Schacht v. United States, 398 U.S. 58, 61-62, 90 S.Ct. 1555, 1558-59, 26 L.Ed.2d 44 (1970). Responding to the Government’s argument that the amateur skit was not a “theatrical production,” Justice Black, writing for the majority, stated: It may be that the performances were crude and amateurish and perhaps unappealing, but the same thing can be said about many theatrical performances. We cannot believe that when Congress wrote out a special exception for theatrical productions" }, { "docid": "7043016", "title": "", "text": "than the somewhat reduced protection accorded commercial speech. NYSLA shares Bad Frog’s premise that “the speech at issue conveys no useful consumer information,” but concludes from this premise that “it was reasonable for [NYSLA] to question whether the speech enjoys any First Amendment protection whatsoever.” Brief for Appellees at 24-25 n. 5. Ultimately, however, NYSLA agrees with the District Court that the labels enjoy some First Amendment protection, but are to be assessed by the somewhat reduced standards applicable to commercial speech. The parties’ differing views as to the degree of First Amendment protection to which Bad Frog’s labels are entitled, if any, stem from doctrinal uncertainties left in the wake of Supreme Court decisions from which the modern commercial speech doctrine has evolved. In particular, these decisions have created some uncertainty as to the degree of protection for commercial advertising that lacks precise informational content. In 1942, the Court was “clear that the Constitution imposes no [First Amendment] restraint on government as respects purely commercial advertising.” Valentine v. Chrestensen, 316 U.S. 52, 54, 62 S.Ct. 920, 921, 86 L.Ed. 1262 (1942). In Chrestensen, the Court sustained the validity of an ordinance banning the distribution on public streets of handbills advertising a tour of a submarine. Twenty-two years later, in New York Times Co. v. Sullivan, 376 U.S. 254, 84 S.Ct. 710, 11 L.Ed.2d 686 (1964), the Court characterized Chrestensen as resting on “the factual conclusion^ that the handbill was ‘purely commercial advertising,’ ” id. at 266, 84 S.Ct. at 718 (quoting Chrestensen, 316 U.S. at 54, 62 S.Ct. at 921), and noted that Chrestensen itself had “reaffirmed the constitutional protection for ‘the freedom of communicating information and disseminating opinion,’ ” id. at 265-66, 84 S.Ct. at 718 (quoting Chrestensen, 316 U.S. at 54, 62 S.Ct. at 921) (emphasis added). The famously protected advertisement for the Committee to Defend Martin Luther King was distinguished from the unprotected Chrestensen handbill: The publication here was not a “commercial” advertisement in the sense in which the word was used in Chrestensen. It communicated information, expressed opinion, recited grievances, protested claimed abuses, and sought" }, { "docid": "12161188", "title": "", "text": "an active and outspoken protestor.” It is hard to imagine a kind of political protest more consistent with the most cherished traditions of this nation than protest focusing on the laws of taxation. Certainly no form of protest is more American. It was, after all, protest against the Stamp Act which helped set in motion the chain of events which won for this nation its independence from a repressive King George and led to the enshrining in the first amendment of the right to protest. Since the trial court seemed justifiably confused as to the proper application of the first prong of the test, this ease should be remanded to give the trial court an opportunity to reconsider the matter in light of this clarification of the various means by which selectivity may be proved. The possibility that the confusion may have affected the finding that selectivity was motivated by a desire to suppress outspokenness suggests that the trial court not be bound by that finding on remand but rather be permitted to reconsider whether both selectivity and illegal purpose were proved in this case. I would therefore reverse and remand for reconsideration by the trial court. . The principal difference between Judge Logan and me is not that we emphasize different trial court findings, but that he would affirm a criminal conviction based on conflicting findings by the trial court on the key issue. I would not. The trial court should have an opportunity to clear up its findings under proper guidelines. . The right to protest against government policies lies at the core of first amendment values, and the debate in this area of the law is whether commercial speech and recreational speech are entitled to the same constitutional protection as protest. See, e. g., Valentine v. Chres-tensen, 316 U.S. 52, 62 S.Ct. 920, 86 L.Ed. 1262 (1942) (Constitution imposes no restraints on government restrictions of purely commercial advertising); Virginia State Board of Pharmacy v. Virginia Citizens Consumer Council, Inc., 425 U.S. 748, 96 S.Ct. 1817, 48 L.Ed.2d 346 (1976) (commercial speech is within protective ambit of the" } ]

[ { "docid": "13491045", "title": "", "text": "(6) whether the noteholder defendants aided and abetted the alleged fraud by holding themselves out as holders in due course and withholding from herdowners certain information about Black Watch’s precarious financial position. Plaintiffs’ papers specify several other questions claimed to be common to all of them, but those just described are the principal ones. We conclude, for the reasons set forth below, that these are not common issues even as to members of the proposed subclasses (pre- and post-prospectus herdowners, respectively) and consequently that common issues do not predominate over individual issues as required under Rule 23(b) (3). The first issue (the O’Shea plaintiffs claims under § 5 and § 12 of the 1933 Act) is not seriously pressed on this motion. Defendants insist, and plaintiffs do not seriously dispute (apart from advancing a curiously arcane tolling theory) that the § 12 claims of most (if not all) the O’Shea plaintiffs are time-barred by the relatively short limitations periods imposed by § 13 of the 1933 Act, 15 U.S.C. § 77m. However, we need not decide whether the § 12 claims are time-barred since plaintiffs have failed affirmatively to plead compliance with the statute of limitations, as they are required to do. Newberg v. American Dryer Corp., 195 F.Supp. 345 (E.D.Pa.1961); Premier Industries, Inc. v. Delaware Valley Financial Corp., 185 F.Supp. 694 (E.D.Pa.1960); cf. Fischman v. Raytheon Mfg. Co., 9 F.R.D. 707 (S.D.N.Y.1949), rev’d on other grounds, 188 F.2d 783 (2d Cir. 1951). Moreover, even assuming some plaintiffs could plead compliance with the statute of limitations, the § 12 claims may well be unamenable to class treatment: The O’Shea named plaintiffs bought their herds on an individual basis, not pursuant to a general public offering, but over the period from 1967 to 1969. Members of the O’Shea class purchased beginning in 1963. Since it is undisputed that many herdowner contracts were back-dated (which evidently resulted in extra interest charges to Black Watch and extra depreciation deductions for some herdowners), simply determining when the statute of limitations in fact began to run on the § 12 claims would involve a separate" } ]

[ { "docid": "506427", "title": "", "text": "misrepresentations. The Court does not agree and finds that the three-year period of limitation set out in 15 U.S.C. § 77m is absolute. Otherwise 15 U.S.C. § 77m would create a limitation period for all suits of one year from the time discovery of the untrue statements or omissions should have been made, and the three-year provision would serve no purpose at all. See Cowsar v. Regional Recreation, Inc., 65 F.R.D. 394, 397 (M.D.La.1974); Burkardt v. Liberty, 394 F.Supp. 1296, 1298-1299 (W.D.Pa.1975); Fisher v. International Telephone & Telegraph Corporation, 391 F.Supp. 744, 747-748 (E.D.N.Y.1975). COUNT III Blanche Turner purchased her shares of the Trust in August of 1972. Count III sets out a claim under § 11 of the 1933 Act based on the filing of an allegedly false registration statement with the Securities and Exchange Commission in February 1973 in connection with the public offering of shares of the Trust on March 1, 1973. The basis for a claim under § 11 is that the registration statement contained an untrue statement of a material fact or an omission of a material fact. See Ernst & Ernst v. Hochfelder, 425 U.S. 185, 96 S.Ct. 1375, 47 L.Ed.2d 668 (1976). In order to have a claim under that section, the plaintiff must prove that she purchased a security which was issued in connection with such registration statement, Barnes v. Osofsky, 373 F.2d 269, 273 (2d Cir. 1967), which Turner obviously cannot do, having purchased prior to 1973. (See Turner deposition at 13, 16, 21-22.) Thus she cannot represent a class on this count, nor can she maintain an independent action. COUNT IV Count IV of the first amended complaint states in part: “61. Plaintiff realleges and incorporates by reference paragraphs 1 through 51 hereof [which set forth the background to this action and, in paragraphs 34 through 51, set forth the alleged ‘Deception and Fraud Practiced on the Plaintiff Class by Defendants in Connection with the Sale and Purchase of Shares of the Trust,’ i. e., the alleged common course of misconduct]. “62. Defendants are subject to civil liabilities under Section" }, { "docid": "14180850", "title": "", "text": "of this title more than three years after the sale. 15 U.S.C. § 77m (1982). Thus, the limitations periods applicable to section 12(1) claims are one year from the date of the violation, and in no event, more than three years after the security was bona fide offered to the public. The one and three year provisions are cumulative, not alternative. LeCroy v. Dean Witter Reynolds, Inc., 585 F.Supp. 753, 760 (E.D.Ark.1984); Osborne v. Mallory, 86 F.Supp. 869, 873-74 (S.D.N.Y.1949); III. Loss, SECURITIES REGULATION, ch. ll(c)(l)(f)(i) (2d ed. 1961) (hereinafter cited as III. Loss). Plaintiffs must establish that their section 12(1) claim was brought within one year of the alleged violation and within three years of the date the securities were bona fide offered to the public. See LeCroy, supra. Sections 5(a) and 15, while not specifically addressed in section 13, have nevertheless been interpreted to fall within the auspices of the one and three year limitations periods. See Herm v. Stafford, 663 F.2d 669, 679 (6th Cir.1981); LeCroy, supra, at 757-58; Sasso v. Koehler, 445 F.Supp. 762, 763 (D.Md.1978). This interpretation is premised upon the relationship between sections 5, 12, and 15. Section 12(1) imposes liability upon any person who “offers or sells [an unregistered] security in violation of section 5.” 15 U.S.C. §111 (1) (1982). Similarly, “since the liability of the controlling person [under section 15], is joint and several with the controlled person, the same limitations period logically applies to the controlling person.” Herm v. Stafford, supra at 679. In short, for purposes of the Count II claims for violations of section 5(a), 12(1), and 15, plaintiffs must plead and prove facts tending to show that the present action was commenced within one year of the violation upon which it is based and not more than three years after the security was bona fide offered to the public. Although neither party has addressed the issue, it is important to determine when a security is “bona fide offered to the public” within the meaning of section 13. Several courts have addressed this issue and have differed as to" }, { "docid": "506426", "title": "", "text": "U.S.C. § 77k, based on the filing of an allegedly false registration statement with the Securities and Exchange Commission in connection with the public offering of shares of the Trust in December of 1971. This claim is barred by the statute of limitations. Section 77m of Title 15 U.S.C. provides that no action shall be maintained to enforce a liability created under § 77k unless brought within one year after the discovery of the untrue statement or the omission on which the claim is based has or should have been made by the exercise of reasonable diligence, and “[i]n no event shall any such action be brought * * * more than three years after the security was bona fide offered to the public * *.” The registration statement was filed at least by December of 1971, and the original complaint was filed in March of 1975, three years and three months later. The plaintiff argues that the three-year period of limitation is tolled if the defendants took affirmative steps to conceal the omissions or misrepresentations. The Court does not agree and finds that the three-year period of limitation set out in 15 U.S.C. § 77m is absolute. Otherwise 15 U.S.C. § 77m would create a limitation period for all suits of one year from the time discovery of the untrue statements or omissions should have been made, and the three-year provision would serve no purpose at all. See Cowsar v. Regional Recreation, Inc., 65 F.R.D. 394, 397 (M.D.La.1974); Burkardt v. Liberty, 394 F.Supp. 1296, 1298-1299 (W.D.Pa.1975); Fisher v. International Telephone & Telegraph Corporation, 391 F.Supp. 744, 747-748 (E.D.N.Y.1975). COUNT III Blanche Turner purchased her shares of the Trust in August of 1972. Count III sets out a claim under § 11 of the 1933 Act based on the filing of an allegedly false registration statement with the Securities and Exchange Commission in February 1973 in connection with the public offering of shares of the Trust on March 1, 1973. The basis for a claim under § 11 is that the registration statement contained an untrue statement of a material" }, { "docid": "1993198", "title": "", "text": "Corp., No. 87-4611, 1989 WL 85070, at *8 (E.D.La. July 27, 1989) (same); Stone v. Fossil Oil & Gas, 657 F.Supp. 1449, 1456 (D.N.M.1987) (stating that claim must be filed “within three years after the securities were initially bona fide offered to the public”); Sowell, 1987 WL 10712, at *8 (accepting first-offered test without discussion); Waterman v. Alta Verde Indus., Inc., 643 F.Supp. 797, 808 (E.D.N.C.1986) (adopting first-offered test based on weight of authority); In re National Mortgage Equity Corp. Mortgage Pool Certificates Sec. Litig., 636 F.Supp. 1138, 1167 (C.D.Cal.1986) (same); Slagell v. Bontrager, 616 F.Supp. 634, 636-37 (W.D.Pa.1985) (adopting first-offered test for § 12(a)(1) violations involving unregistered securities); Morley v. Cohen, 610 F.Supp. 798, 815-16 (D.Md.1985) (“[T]he court is persuaded that the three-year statute of limitations commences to run on the date the securities were first bona fide offered to the public.”); LeCroy v. Dean Witter Reynolds, Inc., 585 F.Supp. 753, 760-61 (E.D.Ark.1984) (adopting, in what may be dictum, the first-offered test, but expressing “some degree of disquietude”); Morse, 445 F.Supp. 619 (applying first-offered test in context of § 11 claims); Fischer v. Int’l Tel. & Tel. Corp., 391 F.Supp. 744, 747-48 (E.D.N.Y.1975) (“From every indication in the authorities, the crucial date, i.e., the date when a security is first offered to the public within the meaning of § 77m of Title 15, is not earlier than the effective date of last amendment to the registration statement and not later than the date when the prospectus is released to, or other solicitation is made of, the public.”); Kramer v. Scientific Control Corp., 352 F.Supp. 1175, 1176 (E.D.Pa.1973) (accepting, in § 11 and § 12(a)(2) context, first-offered test without discussion); Osborne v. Mallory, 86 F.Supp. 869, 873 (S.D.N.Y. 1949) (applying first-offered test without discussion); cf. Ingenito v. Bermec Corp., 376 F.Supp. 1154, 1173 (S.D.N.Y.1974)(dismissing case for failing to plead compliance with three year repose period by not indicating the date on which security was first offered to the public). Similarly, most leading commentators have interpreted the language of § 13 as implicating the first offering of a security as the" }, { "docid": "14180901", "title": "", "text": "v. Scientific Control Corp., 352 F.Supp. 1175, 1176 (E.D.Pa.1973); Osborne v. Mallory, 86 F.Supp. 869, 873 (S.D.N.Y.1949). Apparently, only one court has specifically addressed the issue and adopted the \"last offered” approach. See In Re Bestline Products Securities and Antitrust Litigation, [1974-75] CCH Fed.Sec.L.Rep. [[95,070 at 97,751 (S.D.Fla. 1975). In Cowsar v. Regional Recreations, Inc., 65 F.R.D. 394 (M.D.La.1974), the court concluded that the three-year limitations period commenced on the date of the “last sale.\" Id. at 396-97. However, the court did not specify whether this was the last sale to the plaintiff or the last sale of the security to the public. Id. . This assumption is most favorable to plaintiffs' case in that it postpones the commencement of the statute of limitations until the time plaintiffs actually purchased the securities. The alternative assumption would be that plaintiffs purchased their securities sometime after they were first offered to the public. In that case, the limitations period would have begun to run prior to plaintiffs’ purchase. This would have resulted in a shorter period in which plaintiffs could have timely filed suit. . In Holmberg v. Armbrecht, 327 U.S. 392, 66 S.Ct. 582, 90 L.Ed. 743 (1946), the Supreme Court concluded that the equitable tolling doctrine, first enunciated in Bailey v. Glover, 88 U.S. (21 Wall.) 342, 22 L.Ed. 636 (1874), is read into every federal statute of limitations, and should therefore be applied to state statutes of limitations borrowed for federal actions. 327 U.S. at 397, 66 S.Ct. at 585. \"It would be too incongruous to confine a federal right within the bare terms of a State statute of limitation unrelieved by the settled federal equitable doctrine as to fraud, when even a federal statute in the same terms would be given the mitigating construction required by that doctrine.” Id. In Johnson v. Railway Express Agency, Inc., 421 U.S. 454, 95 S.Ct. 1716, 44 L.Ed.2d 295 (1975), the Supreme Court seemingly contradicted Holmberg when it determined that in borrowing state statutes of limitations for federal actions, federal courts should also borrow state tolling provisions. The Court reasoned: Any period" }, { "docid": "672930", "title": "", "text": "hereby dismissed as time-barred. Plaintiffs’ claims predicated upon section 12(2) which arise from sales which occurred on or after such date have satisfied the three-year period of limitation. However, section 13 also requires that such claims be brought within one year after the discovery of the untrue statement or omission, or after such discovery should have been made by the exercise of reasonable diligence. Osborne v. Mallory, 86 F.Supp. 869 (S.D.N.Y.1949). Compliance with the one-year period of limitations set forth in section 13 is an essential substantive ingredient of a private cause of action based upon section 12(2). In Re Caesars Palace Securities Litigation, supra; Kroungold v. Triester, 407 F.Supp. 414 (E.D.Pa.1975); Kramer & Harrison v. Scientific Control Corp., 352 F.Supp. 1175 (E.D.Pa.1973). Plaintiffs must affirmatively plead sufficient facts to demonstrate that the requirements of section 13 have been satisfied; otherwise their claims are subject to dismissal. Premier Industries v. Delaware Valley Financial Corp., 185 F.Supp. 694 (E.D.Pa.1960). A complaint that alleges violations of section 12(2) must set forth the time and circumstances of the discovery of the untrue statement or omission, the reasons why such was not discovered earlier (if more than one year has elapsed), and plaintiff’s diligent efforts in such situation in making or seeking such discovery. Kroungold v. Triester, supra, at 419. Therein', the plaintiffs’ amended complaint merely stated that: “Due to the fraudulent concealment practiced by the defendants, the plaintiff Kroungold was unaware, in the exercise of due diligence, of the fraudulent and deceptive acts and conduct of the defendants until March, 1974, and the plaintiff Bochey was unaware, in the exercise of due diligence, of the fraudulent and deceptive acts and conduct of the defendants until June, 1974.” Such allegation was held to be inadequate to satisfy the pleading requirements of section 13. In the case at hand, plaintiffs attempt to show compliance with the one-year time period by asserting in paragraph 23 of their complaint: “Any statute of limitations applicable to the prospectuses and to the misstatements of material facts are tolled by the reason of the concealment of the fraud by the" }, { "docid": "14180852", "title": "", "text": "whether it is the date the securities were first offered to the public or the date they were last offered. Compare LeCroy, supra, at 760 (first offered) with In Re Bestline Products Securities and Antitrust Litigation, [1974-75] CCH Fed.Sec.L.Rep. H 95,070 (S.D.Fla.1975) (last offered). Although the difference appears minor, it can have substantial adverse consequences, including the expiration of a plaintiffs cause of action under section 12(1) before the cause of action actually accrues, After careful consideration of the relevant authorities, the Court is persuaded that the three-year statute of limitations commences to run on the date the securities were first bona fide offered to the public. The clear weight of the authority supports this interpretation. See, e.g., LeCroy, supra, at 760 & n. 4; Morse v. Peat, Marwick, Mitchell & Co., 445 F.Supp. 619, 620 (S.D.N.Y.1977). Indeed, Professor Loss, in his treatise on securities regulation, concludes that the language of section 13 “presumably ... means first offered to the public.” III. Loss, supra, at 1742 (emphasis in original). The Court next turns to the application of the limitation period to the instant case. Neither the complaint nor plaintiffs reply memoranda to defendants’ motion sets forth the date upon which the Mountainview and Newport securities were first offered to the public. However, for purposes of the motion to dismiss, the Court will assume that plaintiffs were the first investors in Mountainview and Newport, and that the statute of limitations began to run in October 1976 on the Mountainview purchases and in November 1977 on the Newport purchases. The present action was commenced on December 7, 1983. It is readily apparent, therefore, that plaintiffs’ claims for violation of sections 5, 12(1) and 15 are barred by the three-year statute of limitations. The present suit was instituted more than seven years after the first bona fide offering of the Mountainview securities and more than six years after the first bona fide offering of the Newport securities. Nevertheless, plaintiffs urge this Court to apply the federal equitable tolling doctrine to toll the statute of limitations. “Federal law has long held that where fraud" }, { "docid": "750851", "title": "", "text": "& Co., 445 F.Supp. 619, 621 (S.D.N.Y.1977); Kramer & Harrison v. Scientific Control Corp., 352 F.Supp. 1175, 1176 (E.D.Pa.1973); Loss, ch. 11(C)(1)(f)(i) at p. 1742. The court in Morse interpreted this as the effective date of the registration statement. 445 F.Supp. at 622. . Assume, for example, that a security is first bona fide offered to the public on January 1, 1980. Sales of the security are slow and an individual buys a share on January 5, 1983. The next day he realizes the security is worthless. He remembers that he never received a ' prospectus. On January 6, 1983, he files suit pursuant to section 12(1), alleging violations of section 5. Under the literal reading of section 13, the investor's claim would be time-barred by the three-year limitation, irrespective of the fact that his claim is clearly within the one-year limitation period. . Professor Loss has also observed this phenomenon, noting \"it is literally possible for the statute [of limitations] to expire before the purchaser acquires the security in the case of a very slow offering which may still be going on after three years!” L. Loss, supra, at p. 1743. . Cf. Diskin v. Lomasney & Co., 452 F.2d 871, 875-76 (2d Cir.1971) (Friendly, C.J.) (\"With respect to the one-year period of limitation, although § 13 dates this from the \"violation in cases of claims under § 12(1) it would be unreasonable to read § 13 as starting the short period for an action at a date before the action could have been brought — a construction which might lead in some extreme cases to a running of the statute of limitations before the claim had even arisen.”) . The Court observes that, in fact, the plaintiff’s § 12(1) claim may actually be untimely under thc three-year limitations period. As noted above, the complaint was filed almost three years after plaintiff’s purchase. From the nature of the security involved it is possible that the initial public offering of the security occurred long before plaintiff made her purchase. . Plaintiff is not required to plead her case with great" }, { "docid": "14180900", "title": "", "text": "5, 21 & n. 17 (2d Cir.1983), cert. denied sub nom., Moss v. Newman, — U.S.-, 104 S.Ct. 1280, 79 L.Ed.2d 684 (1984). . Assume, for example, that a security is first bona fide offered to the public on January 1, 1980. Sales of the security are slow and an individual buys a share on January 5, 1983. The next day he realizes the security is worthless. He remembers that he never received a prospectus. On January 6, 1983, he files suit pursuant to section 12(1), alleging violations of section 5. Under the literal reading of section 13, the investor’s claim would be time-barred by the three-year limitation, irrespective of the fact that his claim is clearly within the one-year limitation period. LeCroy, supra, at 760 n. 5. . Several other courts have also adopted the “first offered” interpretation of section 13. See Campito v. McManus, 470 F.Supp. 986, 995 (E.D.N.Y.1979); Fischer v. Int'l Telephone and Telegraph Corp., 391 F.Supp. 744, 747 (E.D.N.Y.1975); Ingenito v. Bermec Corp., 376 F.Supp. 1154, 1173 (S.D.N.Y.1974); Kramer & Harrison v. Scientific Control Corp., 352 F.Supp. 1175, 1176 (E.D.Pa.1973); Osborne v. Mallory, 86 F.Supp. 869, 873 (S.D.N.Y.1949). Apparently, only one court has specifically addressed the issue and adopted the \"last offered” approach. See In Re Bestline Products Securities and Antitrust Litigation, [1974-75] CCH Fed.Sec.L.Rep. [[95,070 at 97,751 (S.D.Fla. 1975). In Cowsar v. Regional Recreations, Inc., 65 F.R.D. 394 (M.D.La.1974), the court concluded that the three-year limitations period commenced on the date of the “last sale.\" Id. at 396-97. However, the court did not specify whether this was the last sale to the plaintiff or the last sale of the security to the public. Id. . This assumption is most favorable to plaintiffs' case in that it postpones the commencement of the statute of limitations until the time plaintiffs actually purchased the securities. The alternative assumption would be that plaintiffs purchased their securities sometime after they were first offered to the public. In that case, the limitations period would have begun to run prior to plaintiffs’ purchase. This would have resulted in a shorter period in" }, { "docid": "750824", "title": "", "text": "at p. 3.) It appears plaintiffs contention seems to be that, even if untimely under the one-year limitation period, since plaintiff filed her claim within the three-year limitations period included under section 13, her section 12(1) claim is not barred. The Court must disagree. From a literal reading of the statute and a reference to the legal authorities, the Court concludes as a matter of law that the one- and three-year limitations periods contained in section 13 are cumulative, not alternative. See Osborne v. Mallory, 86 F.Supp. 869, 873-74 (S.D.N.Y.1949); Loss, ch. 11(C)(1)(f)(i) at p. 1742, n. 188. Therefore, the plaintiff must be able to demonstrate not only that she filed her action within one year of the section 5(b)(2) violation, but also that the filing occurred within three years after the securities were first bona fide offered to the public. If she fails to meet either limitation period, her cause of action is time-barred. The Court’s conclusion about the cumulative nature of the two limitations periods is not reached without some degree of disquietude. For from this reading, any person who invests in a security more than three years after it was first offered to the public is automatically time-barred from suing for a violation of section 5(b)(2) no matter how quickly after the sale that person files his complaint. The three-year limitation period therefore stands as a trap for the unwary investor who fails to receive a prospectus in connection with a slow offering. Obviously, this defeats the very core principle upon which the section 5(b)(2) requirement is based: At any time after three years from the initial offering, a broker may sell or offer to sell a security without providing a prospectus and be completely insulated from liability under section 12(1). To the extent that this “cumulative” interpretation permits unscrupulous brokers to act with impunity after the third year following the initial public offering, it undermines the Act’s fundamental policy of ensuring that investors possess (or have the opportunity to possess) a modicum of information about the securities they ultimately purchase. In spite of these theoretical misgivings" }, { "docid": "10932884", "title": "", "text": "to the public) at the time it was offered to plaintiff. Plaintiff argues that any other interpretation would be unreasonable, for it would frustrate the purpose of 77i(l) because it would “give individuals a license to sell unregistered securities to whomsoever they wished if they first offered the security to a group of people and, so to speak, ‘ran the gauntlet’ for three years.” Best-line, supra at 97,751. Furthermore, plaintiff argues, [t]o the extent that this ... interpretation permits unscrupulous brokers to act with impunity after the third year following the initial public offering, it undermines the Act’s fundamental policy of insuring that investors possess (or have the opportunity to possess) a modicum of information about the securities they ultimately purchase. LeCroy v. Dean Witter Reynolds, Inc., 585 F.Supp. 753, 760 (E.D.Ark.1984). However, the majority of courts that have addressed this question have ruled otherwise, holding that the three-year period begins to run from the date the security is first offered to the public. See, e.g., Morley v. Cohen, 610 F.Supp. 798, 815 (D.Md.1985); Slagell v. Bontrager, 616 F.Supp. 634, 636 (W.D.Pa.1985), aff'd, 791 F.2d 921 (3d Cir.1986); LeCroy v. Dean Witter Reynolds, Inc., supra; Brick v. Dominion Mortgage & Realty Trust, 442 F.Supp. 283, 291-92 (W.D.N.Y.1977); Fischer v. International Telephone and Telegraph Corporation, 391 F.Supp. 744, 747 (E.D.N.Y.1975); Ingenito v. Berrnec Corporation, 376 F.Supp. 1154 (S.D.N.Y.1974); Osborne v. Mallory, 86 F.Supp. 869, 873 (S.D.N.Y.1949); see also III L. Loss, Securities Regulation, p. 1742 (2d Ed.1961). As the clear weight of authority supports this interpretation, the court is constrained to agree that plaintiff’s federal securities action is barred by the three-year limitation period set out in 15 U.S.C. § 77m. Consequently, his motion for summary judgment on this claim must be denied. However, there is no comparable statute of limitations under the North Carolina Securities Act. N.C.G.S. § 78A-56(f) provides only that no person may bring suit under this Act more than two years after the sale or contract of sale. Since plaintiff filed his action within that time period, his North Carolina securities law claim remains valid. Furthermore, as" }, { "docid": "14180851", "title": "", "text": "445 F.Supp. 762, 763 (D.Md.1978). This interpretation is premised upon the relationship between sections 5, 12, and 15. Section 12(1) imposes liability upon any person who “offers or sells [an unregistered] security in violation of section 5.” 15 U.S.C. §111 (1) (1982). Similarly, “since the liability of the controlling person [under section 15], is joint and several with the controlled person, the same limitations period logically applies to the controlling person.” Herm v. Stafford, supra at 679. In short, for purposes of the Count II claims for violations of section 5(a), 12(1), and 15, plaintiffs must plead and prove facts tending to show that the present action was commenced within one year of the violation upon which it is based and not more than three years after the security was bona fide offered to the public. Although neither party has addressed the issue, it is important to determine when a security is “bona fide offered to the public” within the meaning of section 13. Several courts have addressed this issue and have differed as to whether it is the date the securities were first offered to the public or the date they were last offered. Compare LeCroy, supra, at 760 (first offered) with In Re Bestline Products Securities and Antitrust Litigation, [1974-75] CCH Fed.Sec.L.Rep. H 95,070 (S.D.Fla.1975) (last offered). Although the difference appears minor, it can have substantial adverse consequences, including the expiration of a plaintiffs cause of action under section 12(1) before the cause of action actually accrues, After careful consideration of the relevant authorities, the Court is persuaded that the three-year statute of limitations commences to run on the date the securities were first bona fide offered to the public. The clear weight of the authority supports this interpretation. See, e.g., LeCroy, supra, at 760 & n. 4; Morse v. Peat, Marwick, Mitchell & Co., 445 F.Supp. 619, 620 (S.D.N.Y.1977). Indeed, Professor Loss, in his treatise on securities regulation, concludes that the language of section 13 “presumably ... means first offered to the public.” III. Loss, supra, at 1742 (emphasis in original). The Court next turns to the" }, { "docid": "10932883", "title": "", "text": "brought within one year after the violation upon which it is based. In no event shall any such action be brought to enforce a liability created under section ...111 (1) of this title more than three years after the security was bona fide offered to the public____ It is undisputed that plaintiff brought this action within one year from his initial investment in the Alta Verde cattle pro gram. Plaintiff also apparently does not dispute defendants’ sworn assertion that they first offered and advertised their program more than three years prior to the commencement of this action. Plaintiff contends, however, that the three-year limitation period should be read to begin not from the date the security was first offered to the public, but from when it was last offered to the public. In Re Bestline Products Securities and Antitrust Litigation [1974-75 Transfer Binder] Fed.Sec.L. Rep. (CCH) 1195,070 (S.D.Fla.1975). Under this theory, plaintiff’s action would be timely, since the Alta Verde cattle feeding program was being offered to the public (and presumably continues to be offered to the public) at the time it was offered to plaintiff. Plaintiff argues that any other interpretation would be unreasonable, for it would frustrate the purpose of 77i(l) because it would “give individuals a license to sell unregistered securities to whomsoever they wished if they first offered the security to a group of people and, so to speak, ‘ran the gauntlet’ for three years.” Best-line, supra at 97,751. Furthermore, plaintiff argues, [t]o the extent that this ... interpretation permits unscrupulous brokers to act with impunity after the third year following the initial public offering, it undermines the Act’s fundamental policy of insuring that investors possess (or have the opportunity to possess) a modicum of information about the securities they ultimately purchase. LeCroy v. Dean Witter Reynolds, Inc., 585 F.Supp. 753, 760 (E.D.Ark.1984). However, the majority of courts that have addressed this question have ruled otherwise, holding that the three-year period begins to run from the date the security is first offered to the public. See, e.g., Morley v. Cohen, 610 F.Supp. 798, 815 (D.Md.1985); Slagell" }, { "docid": "750850", "title": "", "text": "induced plaintiff to delay filing of suit). . Indeed the doctrine is explicitly utilized in connection with the applicable one-year limitations period for actions brought under §§11 and 12(2). See § 13. Nevertheless, with limited exception, the courts have agreed that in the above-described case of fraud, the three-year limitations periods contained in section 13 are never subject to equitable tolling. See, e.g., Admiralty Fund v. Hugh Johnson & Co., 677 F.2d 1301, 1308 (9th Cir.1982); Payne v. Fidelity Homes of America, 437 F.Supp. 656 (W.D.Ky. 1977); Summer v. Land Leisure, Inc., 664 F.2d 965, 968 (5th Cir.1981); Payne v. Fidelity Homes of America, 437 F.Supp. 656 (W.D.Ky. 1977); Cowsar v. Regional Recreations, Inc., 65 F.R.D. 394, 397 (M.D.La.1974). Contra In re Home-Stake Production Co. Securities Litigation, 76 F.R.D. 337, 344-45 (N.D.Okl.1975). The courts have generally found that Congress meant the three-year limitation period to be absolute. . Most authorities agree that the three-year period commences on the date the security was initially bona fide offered to the public. See Morse v. Peat, Marwick, Mitchell & Co., 445 F.Supp. 619, 621 (S.D.N.Y.1977); Kramer & Harrison v. Scientific Control Corp., 352 F.Supp. 1175, 1176 (E.D.Pa.1973); Loss, ch. 11(C)(1)(f)(i) at p. 1742. The court in Morse interpreted this as the effective date of the registration statement. 445 F.Supp. at 622. . Assume, for example, that a security is first bona fide offered to the public on January 1, 1980. Sales of the security are slow and an individual buys a share on January 5, 1983. The next day he realizes the security is worthless. He remembers that he never received a ' prospectus. On January 6, 1983, he files suit pursuant to section 12(1), alleging violations of section 5. Under the literal reading of section 13, the investor's claim would be time-barred by the three-year limitation, irrespective of the fact that his claim is clearly within the one-year limitation period. . Professor Loss has also observed this phenomenon, noting \"it is literally possible for the statute [of limitations] to expire before the purchaser acquires the security in the case of a very" }, { "docid": "22421795", "title": "", "text": "the latter date was intended as an absolute barrier to the filing of suits.” Timmreck v. Mann, 433 F.Supp. 396, 408 (N.D.Ill. 1977). With few exceptions, courts addressing the problem have found that the three-year limitation in the ILSFDA cannot be tolled by equitable principles. See Timmreck v. Munn, 433 F.Supp. at 408-09; Husted v. Amrep Corp., 429 F.Supp. 298, 306 (S.D.N.Y. 1977); Hester v. Hidden Valley Lakes, Inc., 404 F.Supp. 580, 582 (N.D.Miss. 1975); Maher v. J. R. Williston & Beane, Inc., 280 F.Supp. 133, 137 (S.D.N.Y. 1967). Contra, Fuls v. Shastina Properties, Inc., 448 F.Supp. 983, 987-88 (N.D.Cal. 1978); Happy Investment Group v. Lakeworld Properties, Inc., 396 F.Supp. 175, 188 (N.D.Cal. 1975). This interpretation is consistent with the interpretation generally given the similar terms of the statute of limitations under § 13 of the Securities Act of 1933, the statute upon which the ILSFDA was based. See, e.g., Timmreck v. Munn, 433 F.Supp. at 408; United States v. Del Rio Springs, Inc., 392 F.Supp. 226, 228 (D.Ariz. 1975). The three-year limitation in the 1933 Act, 15 U.S.C. § 77m, has been held to be an absolute bar, notwithstanding allegations of fraudulent concealment. See Brick v. Dominion Mortgage & Realty Trust, 442 F.Supp. 283, 291 (W.D.N.Y. 1977); Fischer v. International Telephone & Telegraph Corp., 391 F.Supp. 744, 748 (E.D. N.Y. 1975); Shonts v. Hirliman, 28 F.Supp. 478, 486 (S.D.Cal. 1939); Cowsar v. Regional Recreations, Inc., 65 F.R.D. 394, 399, (M.D.La. 1974). Finally, finding the ILSFDA to contain an absolute bar is consistent with later congressional action. In 1979 the ILSFDA was amended to extend the “unduly short” maximum limitation “to three years after the discovery of the violation or after discovery should have been made.” H.R.Rep. No. 154, 96th Cong., 1st Sess. 38, reprinted in [1979] U.S.Code Cong. & Admin.News, 2317, 2354. Time of Sale Plaintiffs next argue that even if their right to sue under the ILSFDA is irretrievably lost three years after the sale of the property, this suit is not barred because a “sale” is not complete until all installments on the real estate contract are" }, { "docid": "1993199", "title": "", "text": "test in context of § 11 claims); Fischer v. Int’l Tel. & Tel. Corp., 391 F.Supp. 744, 747-48 (E.D.N.Y.1975) (“From every indication in the authorities, the crucial date, i.e., the date when a security is first offered to the public within the meaning of § 77m of Title 15, is not earlier than the effective date of last amendment to the registration statement and not later than the date when the prospectus is released to, or other solicitation is made of, the public.”); Kramer v. Scientific Control Corp., 352 F.Supp. 1175, 1176 (E.D.Pa.1973) (accepting, in § 11 and § 12(a)(2) context, first-offered test without discussion); Osborne v. Mallory, 86 F.Supp. 869, 873 (S.D.N.Y. 1949) (applying first-offered test without discussion); cf. Ingenito v. Bermec Corp., 376 F.Supp. 1154, 1173 (S.D.N.Y.1974)(dismissing case for failing to plead compliance with three year repose period by not indicating the date on which security was first offered to the public). Similarly, most leading commentators have interpreted the language of § 13 as implicating the first offering of a security as the triggering event for the repose period. Loss, supra, § ll(D)(2)(a)(i), at 4492-94 (“Presumably [bona fide offered] means first offered to the public”) (emphasis in original); Richard W. Jennings et al., Securities Regulation 1318 (8th ed. 1998) (“[Section 13] apparently means that as to a portion of an unsold allotment purchased by the plaintiff more than three years after the initial public offering, a possible action under § 12(a)(1) ... was barred before it accrued. While this result is ridiculous, it seems to be what the statute says.”); Thomas Lee Hazen, The Law of Securities Regulation § 7.10[4], at 666 (4th ed. 2002) (“[I]n the case of a slow offering, it is conceivable that the cause of action would be foreclosed before it even arises. While the wisdom of this result has been questioned ..., the generally accepted rule is that the three year repose period is unconditional.”); J. William Hicks, Civil Liabilities: Enforcement and Litigation Under the 193S Act § 5:50 (2002) (“[A] plaintiff seeking relief under § 12(a)(1) must establish ... that the filing" }, { "docid": "672929", "title": "", "text": "Act of 1933 are hereby dismissed as time-barred. With respect to plaintiffs’ causes of action based upon section 12(2) of the Securities Act of 1933, section 13 requires that all such claims be brought within one year after the actual or constructive discovery of the untrue statement or material omission and within three years of the sale of the securities to a particular plaintiff. In Re Caesars Palace Securities Litigation, 360 F.Supp. 366 (S.D.N.Y.1973). Paragraphs 3(a) & (b) of plaintiffs’ complaint list the sales of units of debentures and shares of beneficial interests sold to various plaintiffs and the dates upon which those transactions occurred. Some of the sales occurred prior to three years before commencement of this action, while others took place subsequently. As set forth above, the fraudulent concealment doctrine does not apply to the three-year period of limitations contained in section 13. Therefore, those plaintiffs who purchased either units of debentures or shares of beneficial interests prior to October 6, 1973 may not pursue their section 12(2) claims and such claims are hereby dismissed as time-barred. Plaintiffs’ claims predicated upon section 12(2) which arise from sales which occurred on or after such date have satisfied the three-year period of limitation. However, section 13 also requires that such claims be brought within one year after the discovery of the untrue statement or omission, or after such discovery should have been made by the exercise of reasonable diligence. Osborne v. Mallory, 86 F.Supp. 869 (S.D.N.Y.1949). Compliance with the one-year period of limitations set forth in section 13 is an essential substantive ingredient of a private cause of action based upon section 12(2). In Re Caesars Palace Securities Litigation, supra; Kroungold v. Triester, 407 F.Supp. 414 (E.D.Pa.1975); Kramer & Harrison v. Scientific Control Corp., 352 F.Supp. 1175 (E.D.Pa.1973). Plaintiffs must affirmatively plead sufficient facts to demonstrate that the requirements of section 13 have been satisfied; otherwise their claims are subject to dismissal. Premier Industries v. Delaware Valley Financial Corp., 185 F.Supp. 694 (E.D.Pa.1960). A complaint that alleges violations of section 12(2) must set forth the time and circumstances of the" }, { "docid": "5010755", "title": "", "text": "Hecht v. Harris, Upham & Co., 283 F.Supp. 417 (N.D.Cal.1968), modified on other grounds 430 F.2d 1202 (9th Cir.); Thiele v. Shields, 131 F.Supp. 416 (S.D.N.Y.1955); Osborne v. Mallory, 86 F.Supp. 869 (S.D.N.Y.1949). The District of Alaska has found an implied private action under Section 17(a)(3), but not Section 17(a)(1) or (a)(2), in a case that also asserts a Section 10(b) claim. Demoe v. Dean Witter & Co., 476 F.Supp. 275 [1980] Fed.Sec.L.Rep. (CCH) ¶ 97,282 (D.Alaska, Sept. 7, 1979). Others find a private remedy that is limited to some extent by Sections 11 and 12 of the 1933 Act. In re Gap Stores Securities Litigation, 457 F.Supp. 1135 (N.D.Cal.1978); In re Falstaff Brewing Corp. Antitrust Litigation, 441 F.Supp. 62 (E.D.Mo.1977); In re Equity Funding Corp. of American Securities Litigation, 416 F.Supp. 161 (C.D.Cal.1976); Wulc v. Gulf & Western Indus., Inc., 400 F.Supp. 99 (E.D.Pa.1975); B & B Investment Club v. Kleinert’s Inc., 391 F.Supp. 720 (E.D.Pa.1975); Dorfman v. First Boston Corp., 336 F.Supp. 1089 (E.D.Pa.1972). Additional cases have held that there is no implied action under Section 17(a): In re New York City Municipal Securities Litigation, supra; Marbury Management Inc. v. Kohn, 470 F.Supp. 509 (S.D.N.Y.1979); Allegaert v. Perot, 78 F.R.D. 427 (S.D.N.Y.1978); Lingerfelter v. Title Ins. Co. of Minnesota, 442 F.Supp. 981 (D.Neb.1977); Scarfarotti v. Bache & Co., 438 F.Supp. 199 (S.D.N.Y.1977); Gunter v. Hutcheson, 433 F.Supp. 42 (N.D.Ga.1977); Person v. New York Post Corp., 427 F.Supp. 1297 (E.D.N.Y.1977), aff’d without opinion 573 F.2d 1294 (2nd Cir. 1977); Lincoln National Bank v. Lampe, 414 F.Supp. 1270 (N.D.Ill.1976); Architectural League of New York v. Bartos, 404 F.Supp. 304 (S.D.N.Y.1975); Welch Foods Inc. v. Goldman, Sachs & Co., 398 F.Supp. 1393 (S.D.N.Y.1974); Reid v. Mann, 381 F.Supp. 525 (N.D.Ill.1974); Ferland v. Orange Groves of Florida, Inc., 377 F.Supp. 690 (M.D.Fla.1974); Cowsar v. Regional Recreations, Inc., 65 F.R.D. 394 (M.D.La.1974); Dyer v. Eastern Trust & Banking Co., supra; Emmi v. First-Manufacturer’s National Bank of Lewiston and Auburn, 336 F.Supp. 629 (D.Me.1971). When Section 10(b) claims are absent form the court’s consideration, well reasoned decisions have squarely faced the Section 17(a) issue" }, { "docid": "10932885", "title": "", "text": "v. Bontrager, 616 F.Supp. 634, 636 (W.D.Pa.1985), aff'd, 791 F.2d 921 (3d Cir.1986); LeCroy v. Dean Witter Reynolds, Inc., supra; Brick v. Dominion Mortgage & Realty Trust, 442 F.Supp. 283, 291-92 (W.D.N.Y.1977); Fischer v. International Telephone and Telegraph Corporation, 391 F.Supp. 744, 747 (E.D.N.Y.1975); Ingenito v. Berrnec Corporation, 376 F.Supp. 1154 (S.D.N.Y.1974); Osborne v. Mallory, 86 F.Supp. 869, 873 (S.D.N.Y.1949); see also III L. Loss, Securities Regulation, p. 1742 (2d Ed.1961). As the clear weight of authority supports this interpretation, the court is constrained to agree that plaintiff’s federal securities action is barred by the three-year limitation period set out in 15 U.S.C. § 77m. Consequently, his motion for summary judgment on this claim must be denied. However, there is no comparable statute of limitations under the North Carolina Securities Act. N.C.G.S. § 78A-56(f) provides only that no person may bring suit under this Act more than two years after the sale or contract of sale. Since plaintiff filed his action within that time period, his North Carolina securities law claim remains valid. Furthermore, as the court has found that no genuine issues of fact remain with respect to this claim, plaintiff’s motion for summary judgment on the claim must be granted as against defendant Alta Verde. Furthermore, plaintiff is entitled to judgment as a matter of law on this claim against defendant Miller Finance Company, since the undisputed facts show that it aided and abetted Alta Verde in the sale of unregistered securities. N.C.G.S. § 78A-56(c); Hector v. Wiens, supra, 533 F.2d at 433. The sole purpose for its existence was to provide financing to investors in the Alta Verde cattle program. Miller, Jr. Deposition, pp. 23-24; Calley Deposition, p. 8. Furthermore, Miller Finance has no separate employees. Calley Deposition, pp. 6-8. It is owned by the controlling shareholders of Alta Verde. Miller, Jr. Deposition, pp. 9-13. The same person prepared and executed the Miller Finance security agreement and the Alta Verde cattle feeding agreement. Calley Deposition, p. 17-20. And finally, the officers of Miller Finance knew that Alta Verde’s cattle feeding program was not registered. Calley Deposition, pp." }, { "docid": "14180899", "title": "", "text": "mail, wire, and securities fraud, the Court concludes that the pleadings are sufficient. The amended complaint is re-pleat with allegations that defendants intended to and did devise schemes and artifices to defraud plaintiffs. See, e.g., Complaint Iff 82 & 83. . Section 1964(c) provides in full: (c) Any person injured in his business or property by reason of a violation of section 1962 of this chapter may sue therefor in any appropriate United States district court and shall recover threefold the damages he sustains and the cost of the suit, including a reasonable attorney’s fee. 18 U.S.C. § 1964(c) (1982). . Defendants' contention that plaintiffs must plead a nexus between defendants and organized crime merits little discussion. While several district courts have accepted this argument, \"on the civil side, every circuit that has considered the issue ... has expressly rejected the notion that ‘organized crime,’ in any colloquial sense of the phrase, must be involved in order for RICO to be violated.” Haroco, supra, at 394; see also Moss v. Morgan Stanley, Inc., 719 F.2d 5, 21 & n. 17 (2d Cir.1983), cert. denied sub nom., Moss v. Newman, — U.S.-, 104 S.Ct. 1280, 79 L.Ed.2d 684 (1984). . Assume, for example, that a security is first bona fide offered to the public on January 1, 1980. Sales of the security are slow and an individual buys a share on January 5, 1983. The next day he realizes the security is worthless. He remembers that he never received a prospectus. On January 6, 1983, he files suit pursuant to section 12(1), alleging violations of section 5. Under the literal reading of section 13, the investor’s claim would be time-barred by the three-year limitation, irrespective of the fact that his claim is clearly within the one-year limitation period. LeCroy, supra, at 760 n. 5. . Several other courts have also adopted the “first offered” interpretation of section 13. See Campito v. McManus, 470 F.Supp. 986, 995 (E.D.N.Y.1979); Fischer v. Int'l Telephone and Telegraph Corp., 391 F.Supp. 744, 747 (E.D.N.Y.1975); Ingenito v. Bermec Corp., 376 F.Supp. 1154, 1173 (S.D.N.Y.1974); Kramer & Harrison" } ]

[ { "docid": "9731925", "title": "", "text": "States v. Harris, 832 F.2d 88, 89-91 (7th Cir.1987); United States v. Browne, 829 F.2d 760, 766-67 (9th Cir.1987), cert. denied, 485 U.S. 991, 108 S.Ct. 1298, 99 L.Ed.2d 508 (1988); United States v. Shavers, 820 F.2d 1375, 1377-78 (4th Cir.1987). Ill Finally, the government contends that the district court erred in not adjusting defendant’s base offense level upward to account for the “bodily injury” suffered by his teller victim. The government argues that defendant should have received a two-level upward adjustment under U.S. S.G. § 2B3.1(b)(3) because the teller suffered bodily injury in the form of psychological trauma caused by her confrontation with defendant. Defendant asserts that the district court’s decision was correct because the government failed to prove bodily injury, and, further, that the term “bodily injury” as used in the guidelines does not encompass this type of psychological injury. The base offense level for robbery is to be increased “[i]f any victim sustained bodily injury.” U.S.S.G. § 2B3.1(b)(3). The increase in base offense level is dependent ■upon the “seriousness of the injury.” Id. If a victim sustained “bodily injury,” a defendant’s base offense level should be increased by two. U.S.S.G. § 2B3.1(b)(3)(A). “ ‘Bodily injury’ means any significant injury; e.g., an injury that is painful and obvious, or is of a type for which medical attention ordinarily would be sought.” U.S.S.G. § 1B1.1, comment, n. 1(b). In the instant ease, the government presented evidence that the teller has seen a counselor and quit her job out of fear for her life. The district court concluded that there was psychological injury, but not bodily injury requiring a two-level base offense level increase. After reviewing the record, we do not find this determination to be clearly erroneous. See United States v. Reid, 911 F.2d 1456, 1461 (10th Cir.1990) (review of a district court’s findings of fact supporting its application of the guidelines are reviewed under a clearly erroneous standard), cert. denied, — U.S. -, 111 S.Ct. 990, 112 L.Ed.2d 1074 (1991). Without determining whether purely psychological injury can ever be “bodily injury” within the meaning of the guidelines, evidence" } ]

[ { "docid": "16428115", "title": "", "text": "§§ 2119(2) & 1365(g)(3) (1999) (referring to 18 U.S.C. § 2119(2)), for example, have been subjected to a sentencing enhancement for “serious bodily injury,” which was defined in part as the “protracted loss or impairment of the function of a mental faculty,” when their victims have suffered from lasting psychological debilitation. See, e.g., United States v. Lowe, 145 F.3d 45, 53 (1st Cir.1998) (holding that persistent psychological trauma from rape during carjacking constituted “protracted impairment of mental faculties”). And, in upholding the application of the “permanent or life-threatening bodily injury” enhancement, courts have also considered the permanence of psychological damage caused by the criminal act. See, e.g., United States v. James, 957 F.2d 679, 681 (9th Cir.1992) (affirming enhancement for a defendant who infected a nine-year-old child with genital herpes, in part because the permanent and recurring nature of disease served as a constant reminder of sexual assaults, thereby lessening the likelihood that the victim would overcome her psychological trauma). Indeed, under the language of the Guideline, the four-level enhancement applies only if there is loss or impairment of the function of a mental faculty that is “likely to be permanent.” It is clear, then, that the “impairment of a ... mental faculty” category is capacious enough to encompass lasting emotional and psychological harm, at least when that harm is aggravated by circumstances that prolong its detrimental impact on the victim. On the facts before us it seems possible that the shooting of Patricia Capozzalo may have led to lasting psychological and emotional effects sufficiently severe to constitute “loss or substantial impairment of a ... mental faculty that is likely to be permanent,” thereby warranting a four-level enhancement. As we stated earlier, the sentencing enhancements at issue are directed at the injurious results of a defendant’s crime, not his conduct. Given that, in applying this enhancement, we look not to intentions or circumstances, but to outcomes, defendants must take the bitter with the sweet. Thus if Spinelli can benefit from Capozzalo’s miraculous avoidance of serious physical injury despite the fact that she was shot several times at point-blank range, Spinelli" }, { "docid": "19783147", "title": "", "text": "Cir.1995)), hearsay statements are “often an integral part of the sentencing process.” Id. In fact, there are few limitations on the types of evidence a sentencing judge may consider, as long as it has “sufficient indicia of reliability to support its probable accuracy.” Id. (quoting United States v. Robinson, 164 F.3d 1068, 1070 (7th Cir. 1999)). The district judge credited the teller’s statement in the PSR and applied the two-point enhancement. Once the court relies on information in a PSR that it determines has sufficient indicia of reliability, it is the defendant’s burden to create “real doubt” by showing why the statement is inaccurate or unreliable. United States v. Heckel, 570 F.3d 791, 795-96 (7th Cir.2009). The district judge found the victim’s report sufficiently reliable to support its probable accuracy. And Maiden has not created any doubt about the teller’s statement because, other than generically criticizing it as hearsay, he offers no evidence that would lead us to question the teller’s reliability. See United States v. Taylor, 135 F.3d 478, 481-82 (7th Cir.1998) (hearsay acceptable at sentencing where judge found statement reliable). Maiden additionally argues that the teller’s statement is insufficient evidence upon which to base the bodily injury enhancement because pepper spray is not a dangerous weapon and is virtually incapable of inflicting a “significant injury” as contemplated by the Guidelines. He seems to say that if mace is used, a judge can presume bodily injury because mace is considered a dangerous weapon under Illinois law. On the other hand, when pepper spray is used, Maiden suggests that the government must produce additional evidence to prove the injury because pepper spray is not a dangerous weapon. In light of the government’s failure to demonstrate that he used a dangerous weapon, Maiden contends that the teller’s statement is insufficient. To the extent Maiden claims that the sentencing judge automatically applied the enhancement in reliance on Taylor, 135 F.3d at 481-82, and United States v. Robinson, 20 F.3d 270, 278 (7th Cir.1994), his argument is without merit. Though in both cases we affirmed application of a two-point bodily injury enhancement where" }, { "docid": "11936015", "title": "", "text": "The legality of a guideline sentence is reviewed de novo. United States v. Garcia, 112 F.3d 395, 397 (9th Cir.1997). However, the district court’s factual findings in the sentencing phase are reviewed for clear error. United States v. Ladum, 141 F.3d 1328, 1344 (9th Cir.1998). The government has the burden of proving by a preponderance of the evidence the facts necessary to enhance a defendant’s offense under the Guidelines. United States v. Burnett, 16 F.3d 358, 361 (9th Cir.1994). Section 2B3.1(b)(2)(D) (1997) of the Sentencing Guidelines provides for a four-level increase if a dangerous weapon is used in the commission of the crime. A dangerous weapon is “an instrument capable of inflicting death or serious bodily injury.” Id. at § 1B1.1, cmt. (n.l(d)). A serious bodily injury is one “involving extreme physical pain or the protracted impairment of a function of a bodily member, organ, or mental faculty; or requiring medical intervention such as surgery, hospitalization, or physical rehabilitation.” Id. at (n.l(j)). The issue of whether pepper spray constitutes a dangerous weapon has not been addressed by this court. Other courts have addressed similar issues with mixed results. See United States v. Bartolotta, 153 F.3d 875, 879 (8th Cir.1998) (holding that where mace did in fact cause serious injury it constituted a dangerous weapon); United States v. Harris, 44 F.3d 1206, 1216 (3d Cir.1995) (holding that the government failed to prove that mace constituted a dangerous weapon); United States v. Dukovich, 11 F.3d 140, 142 (11th Cir.1994) (holding that tear gas is a dangerous weapon because it can harm eyes, induce vomiting, cause loss of breath and leave rashes). In the instant case, Neill offered testimony from Kenneth G. Heide, a twenty-five year police veteran. He testified that in his opinion pepper spray was not a dangerous weapon, and that in four years of investigating use of pepper spray by Eugene police officers, there was never an instance of injury. Neill also entered into evidence an article from the National Institute of Justice which provided that only 14 of 174 suspects sprayed with pepper spray suffered any injuries and those" }, { "docid": "16428112", "title": "", "text": "conduct or the circumstances surrounding the crime are relevant to the enhancements’ applicability. Of course, the defendant’s intentions and actions are not off limits to judges making sentencing decisions. Indeed, other provisions of the Guidelines expressly allow for adjustments based on these factors. See, e.g., U.S.S.G. § 3A1.1 (enhancement for hate crime motivation); § 3A1.4 (enhancement for “a felony that ... was intended to promote[] a federal crime of terrorism”); § 3B1.3 (enhancement for defendants who “abused a position of public or private trust, or used a special skill, in a manner that significantly facilitated the commission or concealment of the offense”). But the particular sentencing enhancements before us are differently written and are, on their face, made clearly dependent on the resulting injuries to the victim. B. The second important question raised by this case concerns whether and to what extent the enhancement for “permanent or life-threatening bodily injury” applies to crimes in which the victim has suffered only emotional injury. In sentencing Spi-nelli, Judge Dearie emphasized the permanence of the emotional harm that the defendant’s crime had inflicted on Capozzalo. The defense argues that even if an enhancement for “serious bodily injury” may properly encompass the emotional wounds suffered by a victim like Capozzalo, a four-level enhancement requires a showing that the victim’s mental faculties were impaired as a result of the crime. The emotional agony suffered by victims of violent crime eludes precise measurement and often defies description. There is no question that emotional or psychological injuries can be “permanent or life-threatening,” and that they may, in some instances, cause the “loss or substantial impairment of the function of a ... mental faculty.” Courts that have considered the applicability of the “permanent or life-threatening” and “serious” “bodily injury” sentencing enhancements to emotional or psychological injuries have interpreted “bodily injury” to include harm to a victim’s mental processes and psychic well-being. Any suggestion, then, that this sentencing enhancement applies only in cases of corporeally manifest physical injury is untenable. Cf. United States v. Jacobs, 167 F.3d 792, 801 (3d Cir.1999) (noting that Guidelines treat physical and nonphysical injuries" }, { "docid": "16428109", "title": "", "text": "denial of food or medical care) would constitute life-threatening bodily injury.” U.S.S.G. § 1B1.1, cmt. n.l(h) (1999). The Commentary defines “serious bodily injury” as an “injury involving extreme physical pain or the protracted impairment of a function of a bodily member, organ, or mental faculty; or requiring medical intervention such as surgery, hospitalization, or physical rehabilitation.... ” U.S.S.G. § 1B1.1, cmt. n.l(j) (1999). We review the district court’s factual findings for clear error, and its interpretation of the Guidelines de novo. See United States v. Maaraki, 328 F.3d 73, 75 (2d Cir.2003) (per curiam). The district court offered alternative theories in support of its application of a four-level enhancement. In his initial consideration of the PSR recommendation, Judge Dearie emphasized the permanent nature of Capozzalo’s emotional injury. Upon reconsideration, the judge also referred to the life-threatening circumstances to which Capozzalo was subjected, and emphasized the sheer good fortune that had prevented her death. The government argues that the district court’s imposition of the four-level enhancement was appropriate under either of these rationales. The defendant, instead, contends that because the victim escaped with minor physical injuries of a temporary nature, only a two-level enhancement for “serious bodily injury” is appropriate. We agree with the defendant that the sentencing enhancements apply to the results of a crime, rather than to the circumstances of its commission. In remanding for resentencing, however, we emphasize that emotional injury can result in “loss or substantial impairment of the function of a ... mental faculty” that is sufficient to warrant a four-level enhancement. The issue before the district court, on remand, is whether Capozzalo suffered such a loss or impairment. A. The threshold question presented by this case is whether the sentencing enhancements at issue should depend solely upon the results of the criminal act, or, alternatively, at least in some extreme and unusual situations, can reflect the defendant’s conduct, the circumstances surrounding the crime, or the nature of the crime attempted. At least two circuits that have considered this question have unequivocally held that the resulting injury to the victim is the sole determinant of whether" }, { "docid": "22936153", "title": "", "text": "were found to have sustained “bodily injuries” as a result of being sprayed with mace. Section 2B3.1(b)(3) establishes a graduated scale for those cases in which a victim “sustained bodily injury”: If any victim sustained bodily injury, increase the offense level according to the seriousness of the injury: Degree of Bodily Injury Increase in Level (A) Bodily Injury add 2 (B) Serious Bodñy Injury add 4 (C) Permanent or Life- add 6 Threatening Bodily Injury (D) If the degree of injury is between that specified in subdivisions (A) and (B), add 3 levels; or (E) If the degree of injury is between that specified in subdivisions (B) and (C), add 5 levels. The Application Notes of U.S.S.G. § 1B1.1 provide the following definitions for the terms used in this graduated scale: “Bodily injury” means any significant injury; e.g., an injury that is painful and obvious, or is of a type for which medical attention ordinarily would be sought. “Serious bodily injury” means injury involving extreme physical pain or the impairment of a function of a bodily member, organ, or mental faculty; or requiring medical intervention such as surgery, hospitalization, or physical rehabilitation. “Permanent or life-threatening bodily injury” means injury involving a substantial risk of death; loss or substantial impairment of the function of a bodily member, organ, or mental faculty that is likely to be permanent; or an obvious disfigurement that is likely to be permanent. Where a particular situation falls on this analogue scale is an issue the Commission clearly intended to be resolved on a case-by-case basis after a fact-specific inquiry into the circumstances of the particular crime and its impact on the victims. See United States v. Robinson, 20 F.3d 270, 278-79 (7th Cir.1994); United States v. Lancaster, 6 F.3d 208 (4th Cir.1993). A sentencing court’s resolution of this issue is a finding of fact that will be disturbed on appellate review only if clearly erroneous. See United States v. Ortiz, 878 F.2d 125, 126 (3d Cir.1989). The district court in this case made only one brief reference to the particular circumstances of this case, citing the" }, { "docid": "16428113", "title": "", "text": "the defendant’s crime had inflicted on Capozzalo. The defense argues that even if an enhancement for “serious bodily injury” may properly encompass the emotional wounds suffered by a victim like Capozzalo, a four-level enhancement requires a showing that the victim’s mental faculties were impaired as a result of the crime. The emotional agony suffered by victims of violent crime eludes precise measurement and often defies description. There is no question that emotional or psychological injuries can be “permanent or life-threatening,” and that they may, in some instances, cause the “loss or substantial impairment of the function of a ... mental faculty.” Courts that have considered the applicability of the “permanent or life-threatening” and “serious” “bodily injury” sentencing enhancements to emotional or psychological injuries have interpreted “bodily injury” to include harm to a victim’s mental processes and psychic well-being. Any suggestion, then, that this sentencing enhancement applies only in cases of corporeally manifest physical injury is untenable. Cf. United States v. Jacobs, 167 F.3d 792, 801 (3d Cir.1999) (noting that Guidelines treat physical and nonphysical injuries with comparable seriousness); see also United States v. Rodgers, 122 F.3d 1129, 1132-33 (8th Cir.1997) (holding that while PTSD may not always rise to the level of “serious bodily injury,” it can do so in some circumstances). Since virtually every murder attempt is likely to inflict some psychological damage upon its victim, it is not surprising that the Guidelines draw distinctions between various degrees of psychic harm. Thus, the two-level enhancement for “serious bodily injury” automatically becomes applicable in cases where “medical intervention” is required, and this remains so when the necessary intervention is the result of psychic damage only. But, under the Commentary, the four-level enhancement for “permanent or life-threatening bodily injury” makes “substantial impairment of the function of a ... mental faculty” a prerequisite in cases involving emotional or psychological rather than physical injury. Precedents from other circuits, however, correctly suggest that severe PTSD and its psychological manifestations may constitute an “impairment of the function of a ... mental faculty” in certain circumstances. Defendants prosecuted under the federal carjacking statute, see 18 U.S.C." }, { "docid": "19783149", "title": "", "text": "the defendant sprayed victims with mace or pepper spray, in neither did we hold that bodily injury could be presumed simply because mace or pepper spray was used. In both cases, application of the bodily injury enhancement turned on a statement from the victim who suffered injury, or a person who witnessed the injury first-hand. See Taylor, 135 F.3d at 481-82 (supervisor’s first-hand account of tellers’ injuries was sufficiently reliable so that sentencing judge “could properly make the factual finding” regarding bodily injury); Robinson, 20 F.3d at 278 (teller’s statement that she suffered injuries was sufficient evidence to apply enhancement). See also U.S. Sentencing Guidelines Manual § 2B3.1(b)(3)(A) (enhancement applicable if “victim sustained bodily injury”); Id. at § 1B1.1 cmt. n. (1)(A) (bodily injury is “any significant injury,” including those that are “painful and obvious”). In this case, the judge properly followed the Guidelines, basing his finding of bodily injury on the “burning sensation” the teller experienced in her eyes, and that she was unable to wear contact lenses. He found her statement, as relayed by the PSR, sufficiently reliable. Thus, the sentencing judge appropriately applied the bodily injury enhancement because he determined that the teller had a painful and obvious injury, not simply because Maiden used pepper spray. III. CONCLUSION There was sufficient evidence to determine that Maiden inflicted bodily injury during the commission of his crime and the court properly applied the two-point enhancement under § 2B3.1(b)(3)(A). We Affirm. . The term \"Mace” is a trade name for a particular brand of pepper spray. However, mace also refers to a more potent form of tear gas known as alpha-chloroacetophenone, or CN gas, typically available only to law enforcement or the military. See U.S. Centers For Disease Control and Prevention, National Institute for. Occupational Safety and Health, Pocket Guide To Chemical Hazards 61 (2007). But the term is most commonly used as a generic word for pepper spray. See, e.g., United States v. Robinson, 20 F.3d 270, 278 (7th Cir.1994); People v. Runge, 346 Ill. App.3d 500, 282 Ill.Dec. 13, 805 N.E.2d 632, 637-38 (2004)(describing pepper spray as \"mace”)." }, { "docid": "19783148", "title": "", "text": "at sentencing where judge found statement reliable). Maiden additionally argues that the teller’s statement is insufficient evidence upon which to base the bodily injury enhancement because pepper spray is not a dangerous weapon and is virtually incapable of inflicting a “significant injury” as contemplated by the Guidelines. He seems to say that if mace is used, a judge can presume bodily injury because mace is considered a dangerous weapon under Illinois law. On the other hand, when pepper spray is used, Maiden suggests that the government must produce additional evidence to prove the injury because pepper spray is not a dangerous weapon. In light of the government’s failure to demonstrate that he used a dangerous weapon, Maiden contends that the teller’s statement is insufficient. To the extent Maiden claims that the sentencing judge automatically applied the enhancement in reliance on Taylor, 135 F.3d at 481-82, and United States v. Robinson, 20 F.3d 270, 278 (7th Cir.1994), his argument is without merit. Though in both cases we affirmed application of a two-point bodily injury enhancement where the defendant sprayed victims with mace or pepper spray, in neither did we hold that bodily injury could be presumed simply because mace or pepper spray was used. In both cases, application of the bodily injury enhancement turned on a statement from the victim who suffered injury, or a person who witnessed the injury first-hand. See Taylor, 135 F.3d at 481-82 (supervisor’s first-hand account of tellers’ injuries was sufficiently reliable so that sentencing judge “could properly make the factual finding” regarding bodily injury); Robinson, 20 F.3d at 278 (teller’s statement that she suffered injuries was sufficient evidence to apply enhancement). See also U.S. Sentencing Guidelines Manual § 2B3.1(b)(3)(A) (enhancement applicable if “victim sustained bodily injury”); Id. at § 1B1.1 cmt. n. (1)(A) (bodily injury is “any significant injury,” including those that are “painful and obvious”). In this case, the judge properly followed the Guidelines, basing his finding of bodily injury on the “burning sensation” the teller experienced in her eyes, and that she was unable to wear contact lenses. He found her statement, as relayed" }, { "docid": "22936154", "title": "", "text": "bodily member, organ, or mental faculty; or requiring medical intervention such as surgery, hospitalization, or physical rehabilitation. “Permanent or life-threatening bodily injury” means injury involving a substantial risk of death; loss or substantial impairment of the function of a bodily member, organ, or mental faculty that is likely to be permanent; or an obvious disfigurement that is likely to be permanent. Where a particular situation falls on this analogue scale is an issue the Commission clearly intended to be resolved on a case-by-case basis after a fact-specific inquiry into the circumstances of the particular crime and its impact on the victims. See United States v. Robinson, 20 F.3d 270, 278-79 (7th Cir.1994); United States v. Lancaster, 6 F.3d 208 (4th Cir.1993). A sentencing court’s resolution of this issue is a finding of fact that will be disturbed on appellate review only if clearly erroneous. See United States v. Ortiz, 878 F.2d 125, 126 (3d Cir.1989). The district court in this case made only one brief reference to the particular circumstances of this case, citing the FBI agent’s testimony that the tellers “required immediate medical attention.” The court’s primary focus, however, was not on what happened in this case. It found the reported North Carolina death important and cast its ultimate finding in terms of the non-case-specific conclusion that “a victim of mace sustains a significant injury.” App. 275. The difficulty with the district court’s approach can best be illustrated by comparing two cases from other courts of appeals which present the question of whether a victim of the defendant’s crime had received “bodily injury” from mace. In United States v. Lancaster, 6 F.3d 208 (4th Cir.1993), a security guard had been sprayed with mace during a robbery and had suffered “severe burning in his eyes and cheeks.” Id. at 209. The district court found that no “bodily injury” occurred. The court of appeals held that this finding was not clearly erroneous. In the course of doing so it observed: While the burning in [the security guard’s] eyes and cheeks caused by the mace was undoubtedly unpleasant, and could not be" }, { "docid": "7530249", "title": "", "text": "hospitalization, or physical rehabilitation.” Section 1B1.1, cmt. n. 1(h), defines “permanent or life-threatening bodily injury” as an “injury involving a substantial risk of death; loss or substantial impairment of the function of a bodily member, organ, or mental faculty that is likely to be permanent; or an obvious disfigurement that is likely to be permanent.” Stork argues that the term “permanent injury” when linked with “life-threatening” means that the permanent injury “must be of the same magnitude or seriousness as a life-threatening injury,” and “the disfigurement must rise to the same level as a substantial impairment of bodily function.” He maintains that a four-level enhancement for “serious bodily injury” would have been appropriate. The government argues that the scars are a permanent disfigurement. The district court noted that other cases based on injuries “permanent or life-threatening” have been more serious injuries than Charlotte Flemming’s facial scars, see United States v. Jacobs, 167 F.3d 792, 797 (3rd Cir.1999) (finding that the injuries were both permanent and life-threatening); United States v. Price, 149 F.3d 352, 353-54 (5th Cir.1998) (finding that there was 10-15% permanent loss of hand function), and that cases based on “serious bodily injury” have involved injuries that might be considered more serious than facial scars, see United States v. Rodgers, 122 F.3d 1129, 1133 (8th Cir.1997) (finding that post-traumatic stress disorder causing loss of mental faculties and requiring hospitalization was a “serious bodily injury”). However, we agree with the district court’s assessment that the issue is not whether other victims have suffered worse injuries but whether Charlotte Flemming suffered “permanent” injuries within the meaning of the Guidelines. As the Fifth Circuit noted in United States v. Price, “The plain language of application note 1(h) encompasses injuries that may not be terribly severe but are permanent, hence the disjunctive: ‘permanent or life-threatening injuries.’ ” 149 F.3d at 354. The record provides sufficient evidence that Charlotte Flemming suffered permanent and disfiguring scars on her face, which are obvious to anyone who sees her. There was no clear error in the district court’s conclusion that Charlotte suffered a “permanent or life-threatening bodily" }, { "docid": "19783144", "title": "", "text": "BAUER, Circuit Judge. David Maiden pleaded guilty to bank robbery, 18 U.S.C. §§ 2113(a), (b), and carrying a firearm during a crime of violence, 18 U.S.C. § 924(c)(1)(A), pursuant to a written plea agreement. The district court sentenced him to 141 months’ imprisonment, including a two-level bodily injury enhancement for injuries Maiden inflicted on two bank tellers when he sprayed them with pepper spray. Maiden appeals the application of the enhancement to his sentence. Finding his appeal without merit, we affirm. I. BACKGROUND On June 5, 2008, David Maiden robbed a TCF Bank on the northwest side of Chicago. During the robbery, he carried a .45 caliber Uzi and wore a bulletproof vest. When two young tellers were too slow retrieving money from the bank’s vault, Maiden sprayed them in the face with pepper spray. He then made off with approximately $6,000. Maiden pleaded guilty to aggravated bank robbery and carrying a gun during a crime of violence. In his written plea agreement, he also admitted spraying the tellers with pepper spray. The pre-sentence investigation report (“PSR”) recommended a two-point enhancement to Maiden’s sentence under § 2B3.1(b)(3)(A) of the U.S. Sentencing Guidelines, based on the injury caused by the pepper spray. Specifically, the PSR included a statement from one of the tellers that following the incident, she felt a burning sensation whenever she attempted to wear contact lenses and has therefore been unable to wear them. Maiden objected to the application of the bodily injury enhancement on the basis that pepper spray is not a dangerous weapon under Illinois law, and so the trial judge should have viewed more suspiciously the teller’s “uncorroborated” statement in the PSR that she was injured. He essentially argued that when the government cannot establish whether bodily injury was inflicted by mace or pepper spray, the court must examine hospital and other records to determine whether the offender caused a bodily injury. The district court rejected his arguments. It held that the teller’s testimony was sufficiently reliable to support application of the bodily injury enhancement, regardless of what type of spray was used, and sentenced" }, { "docid": "23577411", "title": "", "text": "the sentence for “bodily injury” based on her spraying mace at the bank tellers. This issue was not raised at sentencing and thus was waived. Rivero, 993 F.2d at 662. The court may review for plain error. The district court enhanced the sentence two levels under U.S.S.G. § 2B3.1(b)(3)(A) for “bodily injury” because in two of the robberies, defendant sprayed the tellers with mace or pepper-guard. “Bodily injury” means any significant injury; e.g., an injury that is painful and obvious, or is of a type for which medical attention ordinarily would be sought. As used in guidelines, the definition of this term is somewhat different than that used in various statutes. U.S.S.G. § 1B1.1, Commentary, Application Note 1(b). The bank tellers who were sprayed experienced pain which lasted for hours and had some residual effect for days. The district court could properly make the factual finding that this was painful and obvious. Cf. United States v. Dukovich, 11 F.3d 140, 142-43 (11th Cir.1994) (defendant sprayed tear gas into bank where victims were prone on floor and victims suffered burning sensation in faces and throats, eye pain and severe headaches, the gas struck one teller near her eye; two women were visibly pregnant; tear gas is a dangerous weapon and is capable of inflicting death or serious bodily injury as defined in § 1B1.1, comment n. 1(b)); United States v. Brown, 508 F.2d 427, 430 (8th Cir.1974) (loaded tear gas gun is dangerous weapon under statute which prohibits carrying dangerous weapons on aircraft; tear gas can cause great bodily harm in the form of powder and chemical burns). The Fourth Circuit went the other way in United States v. Lancaster, 6 F.3d 208, 210-11 (4th Cir.1993), when they upheld a finding of no “bodily injury” under § 2B3.1(b)(3), in a case where a bank robber sprayed mace in a security guard’s eyes. “While the burning in [the guard’s] eyes and cheeks caused by the mace was undoubtedly unpleasant, and could not be described as wholly trivial, it was only momentary and the mace produced no lasting harm.” Id. In contrast to" }, { "docid": "1569705", "title": "", "text": "permanent. In the case of a kidnapping, for example, maltreatment to a life-threatening degree (e.g., by denial of food or medical care) would constitute life-threatening bodily injury. U.S.S.G. § 1B1.1 cmt. n. 1(g). “Serious bodily injury” means injury involving extreme physical pain or the protracted impairment of a function of a bodily member, organ, or mental faculty; or requiring medical intervention such as surgery, hospitalization, or physical rehabilitation. In addition, “serious bodily injury” is deemed to have occurred if the offense involved conduct constituting criminal sexual abuse under 18 U.S.C. § 2241 or § 2242 or any similar offense under state law. U.S.S.G. § 1B1.1 cmt. n. l(i). As the Fifth Circuit has noted, “[t]he plain language of application note 1[ (g) ] encompasses injuries that may not be terribly severe but are permanent, hence the disjunctive: ‘permanent or life-threatening injuries.’” United States v. Price, 149 F.3d 352, 354 (5th Cir.1998). In this case, as we have observed supra, Christine’s treating physician opined that her facial symmetry will never be the same as it was prior to the attack and that the nerve damage and scarring she suffered are likely permanent. Under these circumstances, we readily conclude that the district court did not clearly err in determining that Christine’s injuries were “permanent or life-threatening,” and that the imposition of a 4 level upward adjustment under section 2A4.1(b)(2)(A) consequently was appropriate. See, e.g., United States v. Bogan, 267 F.3d 614, 624 (7th Cir.2001) (holding that the victim incurred • “permanent or life-threatening injuries” where he “suffered lacerations requiring sutures, a fractured eye-socket bone, nerve damage to the left side of his face, ongoing emotional distress and migraine headaches, and the potential loss of three teeth”); United States v. Phillips, 239 F.3d 829, 848 (7th Cir.2001) (holding that the victim’s permanent facial scars constituted “permanent or life- threatening bodily injury”), cert. denied, 534 U.S. 884, 122 S.Ct. 191, 151 L.Ed.2d 134 (2001); United States v. Chee, 173 F.3d 864 (10th Cir.1999) (table disposition) (holding that the victim’s permanent scar on her lip constituted “permanent or life-threatening bodily injury”); United States v. Jacobs," }, { "docid": "16428108", "title": "", "text": "“smack[] of bad faith.” United States v. Bari, 750 F.2d 1169, 1177 (2d Cir.1984). And we are not convinced that Michael was significantly hampered in testifying for Spinelli, had he wished to do so, by the lack of a severance. All in all, we cannot say that the district court abused its discretion in denying the defendant’s motions for severance. B. Enhancement for “Permanent or Life-Threatening Bodily Injury” The Sentencing Guideline applicable to crimes involving attempted murder provides for a four-level enhancement if the “victim sustained permanent or life-threatening bodily injury,” and a two-level enhancement “if the victim sustained serious bodily injury.” U.S.S.G. § 2A2.1(b)(1). Definitions for those terms are found in the Commentary to § 1B1.1. The Commentary defines “permanent or life-threatening bodily injury” as “injury involving a substantial risk of death; loss or substantial impairment of the function of a bodily member, organ, or mental faculty that is likely to be permanent .... ” It further specifies that “[i]n the case of a kidnapping, for example, maltreatment to a life-threatening degree (e.g., by denial of food or medical care) would constitute life-threatening bodily injury.” U.S.S.G. § 1B1.1, cmt. n.l(h) (1999). The Commentary defines “serious bodily injury” as an “injury involving extreme physical pain or the protracted impairment of a function of a bodily member, organ, or mental faculty; or requiring medical intervention such as surgery, hospitalization, or physical rehabilitation.... ” U.S.S.G. § 1B1.1, cmt. n.l(j) (1999). We review the district court’s factual findings for clear error, and its interpretation of the Guidelines de novo. See United States v. Maaraki, 328 F.3d 73, 75 (2d Cir.2003) (per curiam). The district court offered alternative theories in support of its application of a four-level enhancement. In his initial consideration of the PSR recommendation, Judge Dearie emphasized the permanent nature of Capozzalo’s emotional injury. Upon reconsideration, the judge also referred to the life-threatening circumstances to which Capozzalo was subjected, and emphasized the sheer good fortune that had prevented her death. The government argues that the district court’s imposition of the four-level enhancement was appropriate under either of these rationales. The defendant, instead," }, { "docid": "19783150", "title": "", "text": "by the PSR, sufficiently reliable. Thus, the sentencing judge appropriately applied the bodily injury enhancement because he determined that the teller had a painful and obvious injury, not simply because Maiden used pepper spray. III. CONCLUSION There was sufficient evidence to determine that Maiden inflicted bodily injury during the commission of his crime and the court properly applied the two-point enhancement under § 2B3.1(b)(3)(A). We Affirm. . The term \"Mace” is a trade name for a particular brand of pepper spray. However, mace also refers to a more potent form of tear gas known as alpha-chloroacetophenone, or CN gas, typically available only to law enforcement or the military. See U.S. Centers For Disease Control and Prevention, National Institute for. Occupational Safety and Health, Pocket Guide To Chemical Hazards 61 (2007). But the term is most commonly used as a generic word for pepper spray. See, e.g., United States v. Robinson, 20 F.3d 270, 278 (7th Cir.1994); People v. Runge, 346 Ill. App.3d 500, 282 Ill.Dec. 13, 805 N.E.2d 632, 637-38 (2004)(describing pepper spray as \"mace”). See also 235 Ill. Comp. Stat. 5/6—32(a) (describing both mace and pepper spray as \"toxic air-released compound[s]”). Though Maiden attempts to draw a distinction between pepper spray and mace, any difference between the two is not relevant to the determination of whether a bodily injury enhancement applies under § 2B3.1(b)(3)(A). . Pepper spray is a commonly used self defense spray. Its active ingredient is oleoresin capsicum, an extract taken from hot pepper plants. Anita Miller, Pepper Spray: Officers Get Up Close and Painful, San Marcos Daily Record, Apr. 7, 2010. It is available in a variety of delivery systems designed to be carried on one's person, including lipsticks, pens, and even a “pepper pager.” See, e.g., www.pepperspray.com (last visited Apr. 22, 2010). . 720 111 Comp. Stat. 5/24-1 (2008), which Maiden says classifies mace \"as a dangerous weapon,” makes no such classification. In fact, the statute explicitly permits individuals to carry an \"object containing a non lethal noxious liquid gas or substance designed solely for personal defense.” Id. at 5/24-1(a)(3). The Illinois Appellate Court in" }, { "docid": "16428123", "title": "", "text": "enhancement for \"permanent or life-threatening bodily injury” even if the physical injuries resulting from the maltreatment were not themselves life-threatening or permanent. Notably, however, that case involved a carjacking where the victim was thrown into a car trunk, beaten repeatedly over the head with a metal pipe, and left for dead outdoors in bitterly cold weather. While the victim, miraculously, did not suffer permanent or life-threatening injuries, that crime bore considerable resemblance to the kidnapping example described in the Guideline Commentary. In contrast, the crime here, while committed with the most brutal and fatal of intentions, did not inflict the sort of punishing physical abuse described in the commentary’s kidnapping example and perpetrated in the Morgan case. For an application of a sentencing enhancement for \"permanent or life-threatening bodily injury” in a factual situation similar to that in Morgan, see United States v. Williams, 258 F.3d 669, 673-74 (7th Cir.2001). . Some courts faced with the question of whether psychological injury can constitute “bodily injury” for the purposes of the sentencing enhancement for \"serious bodily injury” have declined to decide the issue. See, e.g., United States v. Sawyer, 115 F.3d 857, 860 n. 2 (11th Cir.1997) (finding no \"bodily injury” in the instant case, but declining to decide the question more generally); United States v. Lanzi, 933 F.2d 824, 827 (10th Cir.1991) (same). . In United States v. Rivera, 83 F.3d 542, 548 (1st Cir.1996), the court found that a victim's statement to a probation officer that a carjacking and rape \"ha[d] had a devastating effect on her life, family, and consensual relationship” was a \"generalit[y]” that, when combined with a lack of evidence that she sought professional help, \"f[e]ll short of proof measuring up to 'protracted ... impairment of ... mental faculty' sufficient to justify an additional ten-year sentence” under the carjacking statute’s definition of “serious bodily injury.” On remand, the trial court resen-tenced the defendant, applying the enhancement after finding \"protracted impairment of mental faculties]” based upon new evidence of the nature, severity, and longevity of the victim's post-traumatic stress. The First Circuit affirmed. See United States v." }, { "docid": "16428114", "title": "", "text": "with comparable seriousness); see also United States v. Rodgers, 122 F.3d 1129, 1132-33 (8th Cir.1997) (holding that while PTSD may not always rise to the level of “serious bodily injury,” it can do so in some circumstances). Since virtually every murder attempt is likely to inflict some psychological damage upon its victim, it is not surprising that the Guidelines draw distinctions between various degrees of psychic harm. Thus, the two-level enhancement for “serious bodily injury” automatically becomes applicable in cases where “medical intervention” is required, and this remains so when the necessary intervention is the result of psychic damage only. But, under the Commentary, the four-level enhancement for “permanent or life-threatening bodily injury” makes “substantial impairment of the function of a ... mental faculty” a prerequisite in cases involving emotional or psychological rather than physical injury. Precedents from other circuits, however, correctly suggest that severe PTSD and its psychological manifestations may constitute an “impairment of the function of a ... mental faculty” in certain circumstances. Defendants prosecuted under the federal carjacking statute, see 18 U.S.C. §§ 2119(2) & 1365(g)(3) (1999) (referring to 18 U.S.C. § 2119(2)), for example, have been subjected to a sentencing enhancement for “serious bodily injury,” which was defined in part as the “protracted loss or impairment of the function of a mental faculty,” when their victims have suffered from lasting psychological debilitation. See, e.g., United States v. Lowe, 145 F.3d 45, 53 (1st Cir.1998) (holding that persistent psychological trauma from rape during carjacking constituted “protracted impairment of mental faculties”). And, in upholding the application of the “permanent or life-threatening bodily injury” enhancement, courts have also considered the permanence of psychological damage caused by the criminal act. See, e.g., United States v. James, 957 F.2d 679, 681 (9th Cir.1992) (affirming enhancement for a defendant who infected a nine-year-old child with genital herpes, in part because the permanent and recurring nature of disease served as a constant reminder of sexual assaults, thereby lessening the likelihood that the victim would overcome her psychological trauma). Indeed, under the language of the Guideline, the four-level enhancement applies only if there is" }, { "docid": "19783145", "title": "", "text": "report (“PSR”) recommended a two-point enhancement to Maiden’s sentence under § 2B3.1(b)(3)(A) of the U.S. Sentencing Guidelines, based on the injury caused by the pepper spray. Specifically, the PSR included a statement from one of the tellers that following the incident, she felt a burning sensation whenever she attempted to wear contact lenses and has therefore been unable to wear them. Maiden objected to the application of the bodily injury enhancement on the basis that pepper spray is not a dangerous weapon under Illinois law, and so the trial judge should have viewed more suspiciously the teller’s “uncorroborated” statement in the PSR that she was injured. He essentially argued that when the government cannot establish whether bodily injury was inflicted by mace or pepper spray, the court must examine hospital and other records to determine whether the offender caused a bodily injury. The district court rejected his arguments. It held that the teller’s testimony was sufficiently reliable to support application of the bodily injury enhancement, regardless of what type of spray was used, and sentenced Maiden to 141 months’ imprisonment. He timely appealed. II. DISCUSSION Maiden challenges the district court’s application of a two-level enhancement to his sentence following his conviction for bank robbery, a determination we review for clear error. United States v. Idowu, 520 F.3d 790, 793 (7th Cir.2008). Section 2B3.1(b)(3)(A) directs a sentencing judge to increase an offender’s base offense level by two points “if any victim sustained bodily injury.” The Guidelines broadly define bodily injury as “any significant injury,” including “injury that is painful and obvious, or is of a type for which medical attention would ordinarily be sought.” U.S. Sentencing Guidelines Manual § 1B1.1 cmt. n. (1)(A) (2009). In determining a sentence under the Guidelines, the stringent rules governing admission of evidence in a criminal trial are not applicable. United States v. Johnson, 489 F.3d 794, 796 (7th Cir.2007). While a defendant has a due process right to have his sentence based upon accurate information, United States v. Hankton, 432 F.3d 779, 790 (7th Cir.2005) (quoting United States v. Salinas, 62 F.3d 855, 859 (7th" }, { "docid": "16428124", "title": "", "text": "injury” have declined to decide the issue. See, e.g., United States v. Sawyer, 115 F.3d 857, 860 n. 2 (11th Cir.1997) (finding no \"bodily injury” in the instant case, but declining to decide the question more generally); United States v. Lanzi, 933 F.2d 824, 827 (10th Cir.1991) (same). . In United States v. Rivera, 83 F.3d 542, 548 (1st Cir.1996), the court found that a victim's statement to a probation officer that a carjacking and rape \"ha[d] had a devastating effect on her life, family, and consensual relationship” was a \"generalit[y]” that, when combined with a lack of evidence that she sought professional help, \"f[e]ll short of proof measuring up to 'protracted ... impairment of ... mental faculty' sufficient to justify an additional ten-year sentence” under the carjacking statute’s definition of “serious bodily injury.” On remand, the trial court resen-tenced the defendant, applying the enhancement after finding \"protracted impairment of mental faculties]” based upon new evidence of the nature, severity, and longevity of the victim's post-traumatic stress. The First Circuit affirmed. See United States v. Vazquez-Rivera, 135 F.3d 172, 177-78 (1st Cir.1998). . We also note that the district court downwardly departed to a significant degree in order to arrive at the sentence it imposed on Spinelli. If, on remand, the distinguished and experienced court finds insufficient evidence to support the enhancement for \"permanent or life-threatening bodily injury, ” it may choose to deduct the additional time from the defendant's sentence, or it may, within the bounds of its discretion under the Guidelines, instead readjust other elements of the defendant’s sentence to arrive at what it believes to be a just sentence." } ]

[ { "docid": "1141152", "title": "", "text": "The DIP’s and the Trustee’s failure to perform their post-petition repair and maintenance obligations gives rise to an administrative expense claim for any damages arising therefrom. The instant case is closely analogous to In re United Trucking Service, Inc., 851 F.2d 159 (6th Cir.1988), which also involved a damage claim arising from a lessee’s post-petition continued use of leased property allegedly in violation of the pre-petition lease agreement. In United Trucking Service, as in the instant case, a lessor asserted an administrative expense claim based on damage to the leased property caused by the lessee’s post-petition failure to repair and maintain the property in accord with its lease obligations. The United Trucking Service court held that it was proper to treat these post-petition damage claims as administrative expenses. United Trucking Service, 851 F.2d at 162. The court in United Trucking Service relied in part on American Anthracite & Bituminous Coal Corp. v. Leonardo Arrivabene, S.A., 280 F.2d 119 (2d Cir.1960). American Anthracite holds that the claim of a creditor having an executory contract with a debtor at the time of the debtor’s bankruptcy petition is entitled to administrative expense priority if the debtor-in-possession or the trustee receives benefits under the executory contract. American Anthracite, 280 F.2d at 124. The purpose of granting priority in these cases is to prevent unjust enrichment to the debtor’s estate. Id. at 126. The United Trucking Service court found that the debtor’s estate had received benefits through its breach of the unexpired lease. The court noted that by breaching the lease’s repair and maintenance covenants, the debtor’s estate was able to use the money saved to continue its operations. United Trucking Service, 851 F.2d at 162. Since the breach had benefitted the bankruptcy estate, the Landlords’ claim for damages for this breach was entitled to administrative expense priority. Id. Similarly, the DIP and the Trustee in the instant case may have benefitted from their breaches of the repair and maintenance covenants. By failing to repair and maintain the Premises, the DIP and the Trustee may have spared the estate substantial amounts of money which could" } ]

[ { "docid": "6704469", "title": "", "text": "claimant and the debtor). MSISF makes its claim on the basis of Minn.Stat. § 79A.07, subd. 1, which allows it to step into the shoes of employees for purposes of priority. Chapter 79A is preempted by § 507(a)(3) of the Code. A state statute cannot reset bankruptcy priorities. In re Arrow Carrier Corp., 154 B.R. 642, 646-47 (Bankr.D.N.J.1993); In re Webster, 126 B.R. 4, 5 (Bankr.D.Me.1991). Accordingly, the claim of MSISF for priority status for workers’ compensation benefits accrued but unpaid as of the date of filing is denied. B. Administrative expense pursuant to § 503(b)(1)(A) Lastly, MSISF contends that the allowed portion of the claim is an administrative expense. It bifurcates its claim into the employee’s claims which accrued and which MSISF has paid post-petition, and the costs MSISF incurred post-petition in administering the claims. Administrative expenses include “the actual, necessary costs and expenses of preserving the estate, including wages, salaries, or commissions for services rendered after the commencement of the case.” 11 U.S.C. § 503(b)(1)(A). This definition should be narrowly construed. Isaac v. Temex Energy, Inc. (In re Amarex, Inc.), 853 F.2d 1526, 1530 (10th Cir.1988); United Trucking Service, Inc. v. Trailer Rental Co., Inc. (In re United Trucking Service, Inc.), 851 F.2d 159, 164 (6th Cir.1988). The purpose of the administrative priority is to induce creditors to do business with the debtor post-petition. In re Jartran, Inc., 732 F.2d 584, 586 (7th Cir.1984). In order to preserve the value of the intended priority, a claim must fail if it does not comport with the underlying purpose. Id. A claim will be afforded administrative priority if the debt: (1) arose from a transaction with the debtor-in-possession as opposed to the preceding entity; and (2) is beneficial to the debtor-in-possession in the operation of the business. In re Jartran, Inc., 732 F.2d at 586-87; Cramer v. Mammoth Mart, Inc. (In re Mammoth Mart, Inc.), 536 F.2d 950, 954 (1st Cir.1976). The benefit to the business must be direct and substantial. Employee Transfer Corp. v. Grigsby (In re White Motor Corp.), 831 F.2d 106, 110 (6th Cir.1987). 1. Workers’ compensation" }, { "docid": "14614395", "title": "", "text": "$71,855.65. II. The Trustee relies upon two subsections of 11 U.S.C. § 503 in support of his application. Section 503(b)(3)(D) provides for allowance of administrative expenses including “the actual, necessary expenses ... incurred by ... a creditor ... in making a substantial contribution in a case under chapter ... 11....” 11 U.S.C. § 503(b)(3)(D). Section 503(b)(4) provides for allowance as an administrative expense of: reasonable compensation for professional services rendered by an attorney or an accountant of an entity whose expense is allowable under paragraph (3) of this subsection based upon the time, the nature, the extent, and the value of such services, and the cost of comparable services other than in a case under this title, and reimbursement for actual, necessary expenses incurred by such attorney or accountant. 11 U.S.C. § 503(b)(4). Because the Bankruptcy Code generally provides a scheme of ratable distribution among similarly situated creditors, the provisions for priority treatment of certain claims and expenses are construed strictly against the claimant. See Woburn Assocs. v. Kahn (In re Hemingway Transport, Inc.), 954 F.2d 1 (1st Cir.1992); In re Sunarhauserman, Inc., 184 B.R. 279, 282 (Bankr.N.D.Ohio 1995). The claimant to an administrative expense priority bears the burden of proving his entitlement to such treatment by a preponderance of the evidence. See Woburn Assocs. 954 F.2d at 5; see also United Trucking Serv., Inc. v. Trailer Rental Co., Inc. (In re United Trucking Serv., Inc.), 851 F.2d 159, 162 (6th Cir.1988). If allowed as an administrative expense, a claim is entitled to first priority of distribution among unsecured claims against the bankruptcy estate. See 11 U.S.C. § 507(a)(1). A. The Debtor’s confirmed plan set a deadline for filing requests for payment of administrative expenses sixty days after the entry of the order confirming the plan. (See Document No. 408). That order was entered on September 21, 1998; thus, the deadline for filing requests for payment of administrative expenses was November 20, 1998. Although the Trustee initially filed his Request for Payment of Administrative Claim on November 19, 1998, it was not until he filed his Second Amended Request for" }, { "docid": "15852", "title": "", "text": "(9th Cir.2000): A proof of claim is deemed allowed unless a party in interest objects under 11 U.S.C. § 502(a) and constitutes “prima facie evidence of the validity and amount of the claim” pursuant to Bankruptcy Rule 3001(f). See also Fed. R. Bankr.P. 3007. The filing of an objection to a proof of claim “creates a dispute which is a contested matter” within the meaning of Bankruptcy Rule 9014 and must be resolved after notice and opportunity for hearing upon a motion for relief. See Adv. Comm. Notes to Fed. R. Bankr.P. 9014. Upon objection, the proof of claim provides “some evidence as to its validity and amount” and is “strong enough to carry over a mere formal objection without more.” Wright v. Holm (In re Holm), 931 F.2d 620, 623 (9th Cir.1991) (quoting 3 L. King, Collier on Bankruptcy § 502.02, at 502-22 (15th ed.1991)); see also Ashford v. Consolidated Pioneer Mart (In re Consol. Pioneer Mart), 178 B.R. 222, 226 (9th Cir. BAP 1995), aff'd, 91 F.3d 151, 1996 WL 393533 (9th Cir.1996). To defeat the claim, the objector must come forward with sufficient evidence and “show facts tending to defeat the claim by probative force equal to that of the allegations of the proofs of claim themselves.” In re Holm, 931 F.2d at 623. :{; * * * “If the objector produces sufficient evidence to negate one or more of the sworn facts in the proof of claim, the burden reverts to the claimant to prove the validity of the claim by a preponderance of the evidence.” In re Consol. Pioneer, 178 B.R. at 226 (quoting In re Allegheny Int’l, Inc., 954 F.2d 167, 173-74 (3d Cir.1992)). The ultimate burden of persuasion remains at all times upon the claimant. See In re Holm, 931 F.2d at 623. See also Knize, 210 B.R. at 778; Matter of Missionary Baptist Foundation of America, 818 F.2d 1135, 1143 (5th Cir.1987); In re Stoecker, 143 B.R. 879, 883 (N.D.Ill.1992), aff'd in part, vacated in part, 5 F.3d 1022 (7th Cir.), reh’g denied (1993). Thus, the Bank’s Proof of Claim No. 2" }, { "docid": "8063798", "title": "", "text": "1993 amendments, the statute provided that an employer that opted for self-insurance was required to post a bond sufficient to secure payment of employee benefits. Id. (citing Ohio Rev.Code Ann. § 4123.35(C)). The purpose of the bond was to cover any default in payment by the employer. Ohio Rev.Code Ann. § 4123.351(A). In addition, the State acted as a surety bond company whereby it provided surety bonds to employers who did not or could not otherwise obtain them. Ohio Rev.Code Ann. § 4123.351(B); Ohio’s opposition memorandum at 3. In situations where an employer failed to comply with the workers’ compensation statutes, the employee had the option of filing an application for compensation with the State. Ohio Rev.Code Ann. § 4123.75. Such compensation was and is paid out of the state surplus fund. Id.; Suburban Motor Freight, 36 F.3d at 486. If such payment is required of the State because of employer non-compliance with the Compensation Act, then “... [i]f a claimant secures payment from the surplus fund, the [Ohio] Bureau of Workers’ Compensation turns to the noncompliant employer for reimbursement of the claims payments.” Id. (citing Ohio Rev.Code Ann. § 4123.75). Ohio now claims that its right to reimbursement arises under § 4123.75 of the Ohio Revised Code. Pursuant to Fed. R. Bankr.P. 3001(f), a validly filed proof of claim constitutes prima facie evidence of the claim’s validity. The objector has the initial burden to produce some evidence to overcome this rebuttable presumption. Matter of Missionary Baptist Foundation of America, Inc., 818 F.2d 1135, 1143 (5th Cir.1987); In re Stoecker, 143 B.R. 879, 883 (N.D.Ill.1992); aff'd in part, vacated in part, 5 F.3d 1022 (7th Cir.), reh’g denied (1993). The burden then shifts back to the claimant to produce evidence meeting the objections and establishing the claim. In re Chapman, 132 B.R. 132, 143 (Bankr.N.D.Ill.1991). Although the burden shifts during the claims objection proceeding, the ultimate burden is always on the claimant to prove the entitlement. In re Holm, 931 F.2d 620, 623 (9th Cir.1991); In re Chapman, 132 B.R. at 143. As stated, the State filed its proof of" }, { "docid": "18536202", "title": "", "text": "apply to them. See William L. Norton, Jr., Norton Bankruptcy Law and Practice 2d § 42:14, at 42-73 to 42-74 (1994) (noting that courts have found that the proof of claim provisions of the Code and Rules do not apply to administrative expenses and concluding that administrative expense claimants are apparently not subject to the bar dates for filing claims in Rule 3002). The Official Proof of Claim Form for the United States Bankruptcy Courts also supports this result in that it provides: NOTE: This form should not be used to make a claim for an administrative expense arising after the commencement of the case. A “request” for payment of an administrative expense may be filed pursuant to 11 U.S.C. § 503. Official Bankr.Form 10; 11 U.S.C. A number of courts have found that the conversion of a case from one pending under Chapter 11 to one pending under Chapter 7 changes the requirements for preconversion administrative expense claimants, such that they are to file proofs of claim by the deadline, or bar date, noticed by the court after the conversion. See, e.g., In re De Vries Grain & Fertilizer, Inc., 12 F.3d 101 (7th Cir.1993); United States v. Ginley (In re Johnson), 901 F.2d 513 (6th Cir.1990); United States v. Brandt (In re Lissner), 119 B.R. 143 (N.D.Ill.1990); In re Sea Air Shuttle, Corp., 168 B.R. 501 (Bankr.D.Puerto Rico 1994); In re West Johnson Corp., 96 B.R. 182 (Bankr.W.D.Wis.1988); In re Transouth Truck Equipment, Inc., 87 B.R. 937 (Bankr.E.D.Tenn.1988). This Court respectfully disagrees with these courts. Section 348 of the Code stipulates the effects of conversion. Rule 1019 implements § 348. Fed.R.Bankr.P. 1019 advisory committee’s note (1983). Rule 1019 provides for a new time period for filing claims, and notes that claims actually filed by a creditor in the superseded case will be deemed filed in the Chapter 7 case. Fed.R.Bankr.P. 1019(2) & -(3). The Rule requires a debtor to file a final report and a schedule of postpetition debts within 15 days after the entry of the order of conversion. Fed.R.Bankr.P. 1019(5). Part six of the Rule requires" }, { "docid": "13944897", "title": "", "text": "debtor and the claimant, the “creditor’s right to payment will be afforded first priority only to the extent that the consideration supporting the claimant’s right to payment was both supplied to and beneficial to the debtor-in-possession in the operation of business.” Id. at 954. Moreover, “even when there has technically been performance by the contract creditor during the reorganization period, he will not be entitled to [administrative] priority if the ... estate was not benefitted in fact therefrom.” Id. Since there is little difference between § 503(b)(1)(A) of the Code and § 64(a)(1) of the former Bankruptcy Act, it had been held that “the body of law that grew up interpreting § 64(a)(1) has value as precedent in interpreting 11 U.S.C. § 503(b)(1)(A).” In re Peninsula Gunite, Inc., 24 B.R. 593, 594 (Bankr. 9th Cir.1982); In re Yost, 54 B.R. 818, 821 (Bankr.W.D. Ky.1985). Thus, numerous courts, including the Court of Appeals for the Second Circuit, have continued to follow Mammoth Mart’s treatment of administrative expense claims in cases under the Code. See, e.g., Amalgamated Ins. Fund v. McFarlin’s Inc., 789 F.2d at 101; In re White Motor Corp., 831 F.2d 106, 110 (6th Cir.1987); In re Jartran, Inc., 732 F.2d at 586-88; see also, In re Baths Int’l, Inc., 25 B.R. 538, 540 (Bankr.S.D.N.Y.1982), aff'd, 31 B.R. 143 (S.D.N.Y.1983). The Court in In re Jartran, Inc., 732 F.2d 584 (7th Cir.1984), for example, was required to determine whether an advertising agency’s claims arising from its pre-pe-tition placement of the debtor’s telephone directory ads were entitled to administrative priority under § 503 of the Code when the advertisements were published following the debtor’s Chapter 11 filing. Relying upon Mammoth Mart’s two-part administrative priority test, the Court held that the publication costs associated with the debt- or’s advertisements could not constitute a post-petition administrative claim notwithstanding the fact that the ads were published post-petition and benefited the debtor-in-possession. In reaching this conclusion, the Court stated: We recognize that the services performed by appellants after the closing date, and after the filing of the petition, were significant and of value to Jartran." }, { "docid": "8063799", "title": "", "text": "the noncompliant employer for reimbursement of the claims payments.” Id. (citing Ohio Rev.Code Ann. § 4123.75). Ohio now claims that its right to reimbursement arises under § 4123.75 of the Ohio Revised Code. Pursuant to Fed. R. Bankr.P. 3001(f), a validly filed proof of claim constitutes prima facie evidence of the claim’s validity. The objector has the initial burden to produce some evidence to overcome this rebuttable presumption. Matter of Missionary Baptist Foundation of America, Inc., 818 F.2d 1135, 1143 (5th Cir.1987); In re Stoecker, 143 B.R. 879, 883 (N.D.Ill.1992); aff'd in part, vacated in part, 5 F.3d 1022 (7th Cir.), reh’g denied (1993). The burden then shifts back to the claimant to produce evidence meeting the objections and establishing the claim. In re Chapman, 132 B.R. 132, 143 (Bankr.N.D.Ill.1991). Although the burden shifts during the claims objection proceeding, the ultimate burden is always on the claimant to prove the entitlement. In re Holm, 931 F.2d 620, 623 (9th Cir.1991); In re Chapman, 132 B.R. at 143. As stated, the State filed its proof of claim on December 9,1991, which claim as presently amended argues entitlement under Ohio Rev.Code Ann. § 4123.75. Farley argues that this section is inapplicable and that, even if applicable, the State has not met its burden of proof with respect to required elements under § 4123.75 to sustain the claim. Section 4123.75, which was unchanged in any way material here by the 1993 amendments, provides: Any employee whose employer has failed to comply with section 4,123.35 of the Revised Code, who has been injured or has suffered an occupational disease in the course of his employment, which was not purposely self-inflicted, or his dependents in case death has ensued, may file his application with the industrial commission or the bureau of workers’ compensation for compensation and the administrator of workers’ compensation shall determine the application for compensation in like manner as in other claims and shall make an award to the claimant as he would be entitled to receive if the employer had complied with section 4123.35 of the Revised Code. Payment of the claim" }, { "docid": "18895874", "title": "", "text": "at 611. The court’s administrative expense inquiry centers upon whether the estate has received an actual benefit, as opposed to the loss a creditor might experience by virtue of the debtor’s possession of its property. In the instant case, FNB seeks an administrative expense priority regarding the subject equipment which was either sold, traded, subleased to another party or stripped for parts pre-petition, as well as the portion of the equipment stored by Debtor for the period between the filing of its petition and rejection of the lease with FNB. The burden of establishing entitlement to priority status rests with the claim ant. In re Chateaugay Corp., 102 B.R. 335 (Bankr.S.D.N.Y.1989). FNB has not provided a sufficient basis for granting administrative expense priority with respect to that equipment sold or traded by Debtor pre-petition. Generally, only those benefits which the trustee or debtor-in-possession receives under the lease itself give rise to an administrative expense. The Sixth Circuit, in United Trucking Service, Inc. v. Trailer Rental Co., Inc. (In re United Trucking Service Inc.), 851 F.2d 159, 161-62 (6th Cir.1988) (citing In re White Motor Corp., 831 F.2d 106, 110 (6th Cir.1987)), articulated the general rule that in order to qualify for administrative expense status a claimant must show that the debt both (1) arose from a transaction with the debtor-in-possession rather than the preceding entity (or that debtor-in-possession received consideration from claimant); and (2) directly benefitted the estate. Consideration to the estate exists only where debtor-in-possession induces post-petition performance and performance is rendered to the estate. In United Trucking, damage occurred to the leased property through its misuse by the debtor both pre and post-petition and a portion of the leased property was stolen from the debtor pre-petition. Considering the above rule, the court reasoned that the administrative expense “should reflect actual value conferred on the bankrupt estate by reason of wrongful acts or breach of agreement.” Id. at 162. Upon finding that the post-petition misuse of the equipment resulting in damage was performed by and benefitted the estate, the court held that the post-petition damages, therefore, qualified as an" }, { "docid": "18536203", "title": "", "text": "by the court after the conversion. See, e.g., In re De Vries Grain & Fertilizer, Inc., 12 F.3d 101 (7th Cir.1993); United States v. Ginley (In re Johnson), 901 F.2d 513 (6th Cir.1990); United States v. Brandt (In re Lissner), 119 B.R. 143 (N.D.Ill.1990); In re Sea Air Shuttle, Corp., 168 B.R. 501 (Bankr.D.Puerto Rico 1994); In re West Johnson Corp., 96 B.R. 182 (Bankr.W.D.Wis.1988); In re Transouth Truck Equipment, Inc., 87 B.R. 937 (Bankr.E.D.Tenn.1988). This Court respectfully disagrees with these courts. Section 348 of the Code stipulates the effects of conversion. Rule 1019 implements § 348. Fed.R.Bankr.P. 1019 advisory committee’s note (1983). Rule 1019 provides for a new time period for filing claims, and notes that claims actually filed by a creditor in the superseded case will be deemed filed in the Chapter 7 case. Fed.R.Bankr.P. 1019(2) & -(3). The Rule requires a debtor to file a final report and a schedule of postpetition debts within 15 days after the entry of the order of conversion. Fed.R.Bankr.P. 1019(5). Part six of the Rule requires the clerk of the court to give the following notice: Filing of Postpetition Claims; Notice. On the filing of the schedule of unpaid debts, the clerk, or some other person as the court may direct, shall give notice to those entities, including the United States, any state, or any subdivision thereof, that their claims may be filed pursuant to Rules 3001(a)-(d) and 3002. * * * Fed.R.Bankr.P. 1019(6). Several of the courts holding that administrative expense claimants must file a proof of claim by the bar date following conversion find that Rule 1019(6) requires all entities listed on the Rule 1019(5) schedule of debts incurred in the Chapter 11, including administrative expense claimants, to file a proof of claim. See Johnson, 901 F.2d at 518-19; Lissner, 119 B.R. at 145; Transouth, 87 B.R. at 939 (collectively, the “Transouth Cases”). The Transouth Cases find that Rule 1019(6) does not provide that postpetition, preconversion administrative expense claimants may file either a proof of claim or a request for administrative expense but directs the entities listed on the" }, { "docid": "21848109", "title": "", "text": "administrative expense claim under 503(b)l(A). (Tr. at 34-35, Am.App. of Appellant, at 312-13.) The bankruptcy court entered an order denying Volvo’s application on July 21, 2004. Volvo timely filed a notice of appeal on July 23, 2004. IV. DISCUSSION Section 503(a) of the Bankruptcy Code authorizes entities to file requests for payment of administrative expenses. Section 503(b) provides, in pertinent part: “After notice and a hearing, there shall be allowed administrative expenses, ... including ... the actual, necessary costs and expenses of preserving the estate.” 11 U.S.C. § 503(b)(1)(A). The Sixth Circuit has adopted a two-step analysis in applying these provisions: [A] debt qualifies as an “actual, necessary” administrative expense only if (1) it arose from a transaction with the bankruptcy estate and (2) directly and substantially benefitted the estate. The benefit to the estate test limits administrative claims to those where the consideration for the claim was received during the post-petition period. PBGC v. Sunarhauserman, Inc. (In re Sunarhauserman, Inc.), 126 F.3d 811, 816 (6th Cir.1997) (citing Employee Transfer Corp. v. Grigsby (In re White Motor Corp.), 831 F.2d 106, 110 (6th Cir.1987)). In determining whether there was a “transaction with the bankruptcy estate,” “the proper focus [is] on the inducement involved in causing the creditor to part with its goods or services.” United Trucking Serv., Inc. v. Trailer Rental Co. (In re United Trucking Serv., Inc.), 851 F.2d 159, 162 (6th Cir.1988). As the Sixth Circuit explained in White Motor. ■ A creditor provides consideration to the bankrupt estate only when the debt- or-in-possession induces the creditor’s performance and performance is then rendered to the estate. If the inducement came from a pre-petition debtor, then consideration was given to that en tity rather than to the debtor-in-possession. However, if the inducement came from the debtor-in-possession, then the claims of the creditor are given priority. White Motor Corp., 831 F.2d at 110 (6th Cir.1987) (footnote omitted). ' Normally, merely continuing to possess equipment pursuant to a prepetition contract does not constitute “inducement” by the debtor in possession. United Trucking Serv., 851 F.2d at 162. Volvo was granted relief from" }, { "docid": "18001577", "title": "", "text": "to the estate. In re Mammoth Mart, Inc., supra, 536 F.2d at 954. See, Trustees of Amalgamated Insurance Fund v. McFarlin’s Inc., supra, 789 F.2d at 101; In re Chateaugay Corporation, supra, 102 B.R. at 353; In re Baths International, Inc., 25 B.R. 538, 9 B.C.D. 1316 (S.D.N.Y.1983), aff'd, 31 B.R. 143, 10 B.C.D. 1214, 8 C.B.C.2d 1130 (S.D.N.Y.1983); In re Jartran, Inc., supra, 732 F.2d at 587. This test is premised upon two fundamental policies underlying federal bankruptcy law, equality of distribution and rehabilitation of the debtor’s business. In re Chateaugay Corporation, supra, 102 B.R. at 354. See In re Chicago, Milwaukee, St. Paul & Pacific Railroad Co., 658 F.2d 1149, 1163 (7th Cir.1981), cert. denied, Railway Labor Executives’ Assn, v. Ogilvie, Trustee 455 U.S. 1000, 102 S.Ct. 1632, 71 L.Ed.2d 867 (1982) (general rule is equality of distribution; deviation must appear in the statute). The burden of proving entitlement to an administrative expense is on the claimant and the measure of proof is a preponderance of the evidence. In re Englewood Community Hospital Corporation, 117 B.R. 352, 358 (Bankr.N.D.Ill.1990) (citing, In re Sinclair, 92 B.R. 787, 788, 20 C.B.C.2d 54 (Bankr.S.D.Ill.1988)). The courts, which dealt with the question of entitlement to an administrative expense priority status, installed an element of inducement for finding consideration. A creditor provides consideration to the bankrupt estate only when the debtor-in-possession induces the creditor’s performance and performance is then rendered to the estate. If the inducement came from a pre-petition debtor, then consideration was given to that entity rather than to the debtor-in-possession. In re Jartran, Inc., 732 F.2d 584 (7th Cir.1984). However, if the inducement came from the debtor-in-possession, then the claims of the creditor are given priority. Id. at 586. Employee Transfer Corporation v. Grigsby (In re White Motor Corporation), 831 F.2d 106, 110, 17 C.B.C.2d 1077, Bankr. L.Rep. II72026 (6th Cir.1987). United Trucking Service, Inc. v. Trailer Rental Company, Inc. (In re United Trucking Service, Inc.), supra, 851 F.2d at 162. The United Trucking Service Court dealt with a claim for damages incurred to the lessor-creditor from a debtor’s post-" }, { "docid": "18001578", "title": "", "text": "Corporation, 117 B.R. 352, 358 (Bankr.N.D.Ill.1990) (citing, In re Sinclair, 92 B.R. 787, 788, 20 C.B.C.2d 54 (Bankr.S.D.Ill.1988)). The courts, which dealt with the question of entitlement to an administrative expense priority status, installed an element of inducement for finding consideration. A creditor provides consideration to the bankrupt estate only when the debtor-in-possession induces the creditor’s performance and performance is then rendered to the estate. If the inducement came from a pre-petition debtor, then consideration was given to that entity rather than to the debtor-in-possession. In re Jartran, Inc., 732 F.2d 584 (7th Cir.1984). However, if the inducement came from the debtor-in-possession, then the claims of the creditor are given priority. Id. at 586. Employee Transfer Corporation v. Grigsby (In re White Motor Corporation), 831 F.2d 106, 110, 17 C.B.C.2d 1077, Bankr. L.Rep. II72026 (6th Cir.1987). United Trucking Service, Inc. v. Trailer Rental Company, Inc. (In re United Trucking Service, Inc.), supra, 851 F.2d at 162. The United Trucking Service Court dealt with a claim for damages incurred to the lessor-creditor from a debtor’s post- petition continued use of leased equipment that allegedly was not in accordance with the terms of a pre-petition lease agreement. The claim was based on the casualty loss value of the uncovered stolen trailer and the repair estimates for the recovered stolen trailer. The Court declared that the key inquiry there was not on inducement, as in Mammoth, Jartran, and White Motor, and relied on American Anthracite & Bituminous Coal Corporation v. Leonardo Arrivabene, S.A., 280 F.2d 119, 124, 126 (2d Cir.1960) to articulate the appropriate rationale: The right to priority in the event the trustee or debtor in possession receives benefits under the [executory] contract during the interval between the filing of the debtor’s petition and the rejection of the contract “is an equitable right based upon the reasonable value” of the benefits conferred, rather than upon the contract price. ... [T]he purpose of according priority in these cases is fulfillment of the equitable principle of preventing unjust enrichment of the debtor’s estate, rather than the compensation of the creditor for the loss to" }, { "docid": "21029886", "title": "", "text": "thereby leaving the remaining amount due under the agreement as a prepetition, unsecured claim. STANDARD OF REVIEW The role of the district court and this court are basically the same in the bankruptcy appellate process. In re Christian Life Center, 821 F.2d 1370, 1373 (9th Cir.1987). Therefore, we review the bankruptcy court decision directly. Id. We review the bankruptcy court’s findings of fact for clear error, and its conclusions of law de novo. In re Comer, 723 F.2d 737, 739 (9th Cir.1984). ANALYSIS Under the bankruptcy code, an administrative expense claim has priority over other unsecured claims. 11 U.S.C. § 503 provides in pertinent part: (a) An entity may file a request for payment of an administrative expense. (b) After notice and a hearing, there shall be allowed administrative expenses ... including— (1)(A) the actual, necessary costs and expenses of preserving the estate, including wages, salaries, or commissions for services rendered after the commencement of the case.... The burden of proving an administrative expense claim is on the claimant. In re Sinclair, 92 B.R. 787, 788 (Bank.S.D.Ill.1988). The claimant must show that the debt asserted to be an administrative expense (1) arose from a transaction with the debt- or-in-possession as opposed to the preceding entity (or, alternatively, that the claimant gave consideration to the debtor-in-possession); and (2) directly and substantially benefitted the estate. In re White Motor Corp., 831 F.2d 106, 110 (6th Cir.1987). The bankruptcy court has broad discretion to determine whether to grant such a claim. In re Dant & Russell, Inc., 853 F.2d 700, 706 (9th Cir.1988). In order to keep administrative costs to the estate at a minimum, “the actual, necessary costs and expenses of preserving the estate,” § 503(1)(A), are construed narrowly. In re Palau, 139 B.R. 942, 944 (9th Cir. BAP 1992), aff'd, 18 F.3d 746 (9th Cir.1994). In this case, the debtor rejected an executory contract without ever assuming it. Under 11 U.S.C. § 365(g)(1), for purposes of bankruptcy proceedings, that rejection constitutes breach of the contract immediately prior to the date on which the bankruptcy petition was filed. Nonetheless, after the petition," }, { "docid": "1101376", "title": "", "text": "v. Grigsby (In re White Motor Corp.), 831 F.2d 106 (6th Cir.1987), and United Trucking Serv., Inc. v. Trailer Rental Co. (In re United Trucking Serv., Inc.), 851 F.2d 159 (6th Cir.1988). The purpose of the administrative priority provisions of the Bankruptcy Code is “to facilitate the rehabilitation of insolvent businesses by encouraging third parties to provide those businesses with necessary goods and services.” United Trucking Serv., 851 F.2d at 161. In determining what constitutes an administrative expense, the Sixth Circuit recognized the following elements: [A] claimant must prove that the debt (1) arose from a transaction with the debtor-in-possession as opposed to the preceding entity (or, alternatively, that the claimant gave consideration to the debtor-in-possession); and (2) directly and substantially benefitted the estate. White Motor, 831 F.2d at 110 (citing In re Mammoth Mart, Inc., 536 F.2d 950, 954 (1st Cir.1976)). Accord, United Trucking Serv, 851 F.2d at 161-62; Matter of Zook, 83 B.R. 447, 449 (Bankr.W.D.Mich.1988). Only postpetition debts may be accorded administrative expense priority. Burlington Northern R.R. Co. v. Dant & Russell, Inc. (In re Dant & Russell, Inc.), 853 F.2d 700, 707 (9th Cir.1988); United Trucking Serv., 851 F.2d at 161; Mammoth Mart, 536 F.2d at 954-55; Matter of Baldwin-United Corp., 43 B.R. 443, 453 (S.D.Ohio 1984). Paraphrasing § 503(b)(1)(A) and Sixth Circuit precedent, an administrative priority should be allowed when a claim is for an actual and necessary expense, that directly and substantially benefitted the estate, and was incurred postpetition by the debtor in possession. 1. Possible Chapter 7 Administrative Claim for Storage or Use and Possession Even absent a lease between Dock’s Comer and the Debtor, it is undisputed that Arnox allowed the Debtor to use and possess a portion of the Premises. (See Trustee’s Answer at 2; Bank’s Answer at 2; Affidavit of David R. Biek dated March 28, 1991; Affidavit of Gerald L. Barefield dated August 21, 1991.) The Debtor’s estate continued to use and possess a portion of the Premises during the pendency of the chapter 7 case. Estate property was stored on the Premises including the wood inventory in which" }, { "docid": "1863798", "title": "", "text": "Objection untimely under sections 546(a) and 549(d) merely because not filed in the form of an adversary complaint. The Claim Objection satisfies Fed.R.Civ.P. 8(a) with respect to its allegations that Intira received an avoidable preference and an avoidable postpetition transfer; therefore, divine is not prejudiced by treating the Claim Objection as a complaint. Second, divine ignores persuasive precedent in this district and elsewhere that sections 546(a) and 549(d) of the Bankruptcy Code are inapplicable to claim objections under section 502(d) of the Bankruptcy Code. See United States Lines, Inc. v. United States (In re McLean Indus., Inc.), 196 B.R. 670, 675 (S.D.N.Y.1996); In re Mid Atlantic Fund, Inc., 60 B.R. 604 610-10 (Bankr.S.D.N.Y.1986). See also El Paso v. America West Airlines, Inc. (In re America West Airlines, Inc.), 217 F.3d 1161, 1165-66 (9th Cir. 2000); Committee of Unsecured Creditors v. Commodity Credit Corp. (In re KF Dairies, Inc.), 143 B.R. 734 (9th Cir. BAP 1992) (finding section 549(d)’s limitation period inapplicable to claim objection under section 502(d) of the Bankruptcy Code); In re Badger Lines, 199 B.R. 934, 939-40 (Bankr.E.D.Wis.1996), rev’d on other grounds, 202 F.3d 945 (7th Cir.2000); In re Stoecker, 143 B.R. 118 (Bankr.N.D.Ill.), aff'd in part and rev’d in part and remanded, on other grounds, 143 B.R. 879 (N.D.Ill.1992), aff'd in part and vacated in part and remanded, 5 F.3d 1022 (7th Cir.1993). But see In re Marketing Assocs. of Am., Inc., 122 B.R. 367, 369-71 (Bankr.E.D.Mo.1991) (stating minority position that section 546(a) applies to claim objection under 502(d) of the Bankruptcy Code based on an alleged preference). The plain language of section 502(d) of the Bankruptcy Code, as well as its purpose and legislative history, clearly support declining to apply sections 546(a) and 549(d) of the Bankruptcy Code to claim objections under section 502(d), for the reasons set forth in detail by District Judge Cote in McLean, 196 B.R. at 675-6; see also 5 Collier on Bankruptcy ¶ 546.02[1][d] (15th ed.2003) at 546-12. The pending objections to the Claim under section 502(d) of the Bankruptcy Code therefore are not time-barred. Of course, this does not mean" }, { "docid": "1101375", "title": "", "text": "any rent or other charges reserved under the Arnox leases. Although the court is unable to determine liability under the environmental statutes at this time, it is now able to determine, as a matter of law, whether any valid claims for environmental clean up should be entitled to administrative priority. Dock’s Corner may not seek an administrative claim for unpaid rent under the Arnox leases. No relevant lease exists. Nevertheless, the court will consider whether Dock’s Corner may be entitled to chapter 7 administrative priority for storage costs, or use and possession costs. 11 U.S.C. § 503(b)(1)(A) provides: (b) After notice and a hearing, there shall be allowed administrative expenses, other than claims allowed under section 502(f), including— (1)(A) the actual, necessary costs and expenses of preserving the estate, including wages, salaries, or commissions for services rendered after the commencement of the case[.j Section 507(a)(1) authorizes first priority to administrative expenses allowed pursuant to § 503(b). The Sixth Circuit Court of Appeals has addressed the issue of allowance of administrative expenses in Employee Transfer Corp. v. Grigsby (In re White Motor Corp.), 831 F.2d 106 (6th Cir.1987), and United Trucking Serv., Inc. v. Trailer Rental Co. (In re United Trucking Serv., Inc.), 851 F.2d 159 (6th Cir.1988). The purpose of the administrative priority provisions of the Bankruptcy Code is “to facilitate the rehabilitation of insolvent businesses by encouraging third parties to provide those businesses with necessary goods and services.” United Trucking Serv., 851 F.2d at 161. In determining what constitutes an administrative expense, the Sixth Circuit recognized the following elements: [A] claimant must prove that the debt (1) arose from a transaction with the debtor-in-possession as opposed to the preceding entity (or, alternatively, that the claimant gave consideration to the debtor-in-possession); and (2) directly and substantially benefitted the estate. White Motor, 831 F.2d at 110 (citing In re Mammoth Mart, Inc., 536 F.2d 950, 954 (1st Cir.1976)). Accord, United Trucking Serv, 851 F.2d at 161-62; Matter of Zook, 83 B.R. 447, 449 (Bankr.W.D.Mich.1988). Only postpetition debts may be accorded administrative expense priority. Burlington Northern R.R. Co. v. Dant & Russell," }, { "docid": "15853", "title": "", "text": "To defeat the claim, the objector must come forward with sufficient evidence and “show facts tending to defeat the claim by probative force equal to that of the allegations of the proofs of claim themselves.” In re Holm, 931 F.2d at 623. :{; * * * “If the objector produces sufficient evidence to negate one or more of the sworn facts in the proof of claim, the burden reverts to the claimant to prove the validity of the claim by a preponderance of the evidence.” In re Consol. Pioneer, 178 B.R. at 226 (quoting In re Allegheny Int’l, Inc., 954 F.2d 167, 173-74 (3d Cir.1992)). The ultimate burden of persuasion remains at all times upon the claimant. See In re Holm, 931 F.2d at 623. See also Knize, 210 B.R. at 778; Matter of Missionary Baptist Foundation of America, 818 F.2d 1135, 1143 (5th Cir.1987); In re Stoecker, 143 B.R. 879, 883 (N.D.Ill.1992), aff'd in part, vacated in part, 5 F.3d 1022 (7th Cir.), reh’g denied (1993). Thus, the Bank’s Proof of Claim No. 2 is prima facie evidence of the validity and amount of its claim under Rule 3001(f), and the Debtor has the burden of showing sufficient evidence and to “show facts tending to defeat the claim by probative force equal to that of the allegations of the proofs of claim themselves.” Lundell, 223 F.3d at 1039 (quoting Holm). This Court finds that Eric, as the objecting party, has not produced sufficient evidence to cause the burden to revert to the Bank to prove the validity and amount of its claim. Lundell, 223 F.3d at 1039 (quoting In re Consol. Pioneer, 178 B.R. at 226). The analysis under Lundell was reiterated by the Ninth Circuit in In re Los Gatos Lodge, Inc., 278 F.3d 890, 894 (9th Cir.2002). Applying this analysis to the instant case, no allegation or showing exists that DOE’s Proof of Claim No. 6 was not filed in accordance with the applicable rules. The Debtors did not file an objection. Therefore, Proof of Claim No. 6 is given prima facie effect of its validity and" }, { "docid": "6704470", "title": "", "text": "Temex Energy, Inc. (In re Amarex, Inc.), 853 F.2d 1526, 1530 (10th Cir.1988); United Trucking Service, Inc. v. Trailer Rental Co., Inc. (In re United Trucking Service, Inc.), 851 F.2d 159, 164 (6th Cir.1988). The purpose of the administrative priority is to induce creditors to do business with the debtor post-petition. In re Jartran, Inc., 732 F.2d 584, 586 (7th Cir.1984). In order to preserve the value of the intended priority, a claim must fail if it does not comport with the underlying purpose. Id. A claim will be afforded administrative priority if the debt: (1) arose from a transaction with the debtor-in-possession as opposed to the preceding entity; and (2) is beneficial to the debtor-in-possession in the operation of the business. In re Jartran, Inc., 732 F.2d at 586-87; Cramer v. Mammoth Mart, Inc. (In re Mammoth Mart, Inc.), 536 F.2d 950, 954 (1st Cir.1976). The benefit to the business must be direct and substantial. Employee Transfer Corp. v. Grigsby (In re White Motor Corp.), 831 F.2d 106, 110 (6th Cir.1987). 1. Workers’ compensation obligations It is undisputed that all workers’ compensation claims paid by MSISF on behalf of the Debtor are being paid to employees who suffered injuries long before Debtor filed its petition for relief in bankruptcy. A number of cases have held that workers’ compensation claims for injuries that occurred pre-petition but are paid post-petition are not administrative expenses. See St. Paul Fire & Marine Ins. Co. v. Rea Express, Inc. (In re Rea Express, Inc.), 442 F.Supp. 71, 72 (S.D.N.Y.1977), aff'd, 591 F.2d 1331, 1331-32 (2d Cir.1978); In re Columbia Packing Co., 34 B.R. 403, 404 (Bankr.D.Mass.1983); see also Grantham v. Eastern Marine, Inc., 93 B.R. 752, 754 (Bankr.N.D.Fla.1988) (holding that benefits payable under Longshore and Harbor Workers’ Compensation Act are analogous to workers’ compensation benefits and are not administrative expenses). It has also been held that the claim of a statutorily created fund for reimbursement of analogous type benefits is not entitled to administrative expense status. Grantham, 93 B.R. at 754. These cases correctly concluded that such benefits are not entitled to administrative expense" }, { "docid": "1863799", "title": "", "text": "199 B.R. 934, 939-40 (Bankr.E.D.Wis.1996), rev’d on other grounds, 202 F.3d 945 (7th Cir.2000); In re Stoecker, 143 B.R. 118 (Bankr.N.D.Ill.), aff'd in part and rev’d in part and remanded, on other grounds, 143 B.R. 879 (N.D.Ill.1992), aff'd in part and vacated in part and remanded, 5 F.3d 1022 (7th Cir.1993). But see In re Marketing Assocs. of Am., Inc., 122 B.R. 367, 369-71 (Bankr.E.D.Mo.1991) (stating minority position that section 546(a) applies to claim objection under 502(d) of the Bankruptcy Code based on an alleged preference). The plain language of section 502(d) of the Bankruptcy Code, as well as its purpose and legislative history, clearly support declining to apply sections 546(a) and 549(d) of the Bankruptcy Code to claim objections under section 502(d), for the reasons set forth in detail by District Judge Cote in McLean, 196 B.R. at 675-6; see also 5 Collier on Bankruptcy ¶ 546.02[1][d] (15th ed.2003) at 546-12. The pending objections to the Claim under section 502(d) of the Bankruptcy Code therefore are not time-barred. Of course, this does not mean that the Trustee will prevail on those objections without first obtaining a determination, governed by Part VII of the Bankruptcy Rules, as discussed above, that Intira re ceived an avoidable preference or an avoidable postpetition transfer. Seta Corp. v. Atlantic Computer Sys. (In re Atlantic Computer Sys.), 173 B.R. 858, 862 (S.D.N.Y.1994); In re Southern Air Transport, Inc., 294 B.R. 293, 296 (Bankr.S.D.Ohio 2003); 4 Collier on Bankruptcy ¶ 502.05[2][a] at 502-59 (section 502(d) envisions a judicial determination of avoida-bility, whether obtained in the context of a claim objection, a declaratory judgment action or an adversary proceeding). B. The Trustee’s Objection under Section 510(c) Is not Untimely. Divine correctly contends that any objection to the Claim not raised within the period prescribed by Article IV.A.1. of the Plan, which has now expired, is barred by res judicata. See Cohen v. TIC Fin. Sys. (In re Ampace Corp.), 279 B.R. 145, 152-53 (Bankr.D.Del.2002). There is no dispute, however, that the Claim Objection was filed within the applicable period. It may be the case, therefore, that divine" }, { "docid": "12671598", "title": "", "text": "the post-petition administrative expense theory, it has yet to issue a published decision specifically regarding whether or not rental payments on residential real property which have been defaulted on post-petition are included within this theory. The two leading published decisions, Employee Transfer Corp. v. Grigsby (In re White Motor Corp.), 831 F.2d 106 (6th Cir.1987) and United Trucking Serv., Inc. v. Trailer Rental Company, Inc. (In re United Trucking Serv., Inc.), 851 F.2d 159 (6th Cir.1988), make clear that post-petition damages claims are entitled to administrative expense priority. In White Motor, the court held that no post-petition obligation had arisen on the part of the debtor and, therefore, no administrative expense priority was proper. 831 F.2d at 109. The agreement at issue in this case was a post-petition contract requiring the debtor to pay creditor for services performed pre-petition. In reaching this decision, the White Motor court applied the two-step analysis developed in the First Circuit case entitled In re Mammoth Mart, Inc., 536 F.2d 950 (1st Cir.1976). The White Motor court adopted this test to determine whether or not the claim that was before them qualified for administrative priority. This resolution required the claimant to prove that his claim against debtor: (1) arose from a transaction with the debt- or-in-possession as opposed to the preceding entity (or, alternatively, that the claimant gave consideration to the debtor-in-possession); and (2) directly and substantially benefited the estate. White Motor, 831 F.2d at 110, citing Mammoth Mart, 536 F.2d at 954. In applying this test to the case before them, the White Motor court also relied on a Seventh Circuit case entitled In re Jartran, Inc., 732 F.2d 584 (7th Cir.1984). Jartran held that the only way for a creditor to prove that he had given consideration to the debtor was to show that the debtor had induced, post-petition, the creditor’s performance. Absent this showing of post-petition inducement, a creditor was allowed nothing more than a pre-petition unsecured claim. Jartran, 732 F.2d at 586. The White Motor court found that the creditor in their ease had not been induced by the debtor. As" } ]

[ { "docid": "22121159", "title": "", "text": "Mrs. Pena’s testimony is riddled with evidence that she thereafter refused to give Ms. Horan meaningful responsibility or to delegate or share duties with her. Mrs. Pena emphasized that the responsibilities of administration were not so burdensome as to afford Ms. Horan full time work unless such a delegation took place. It was Mrs. Pena’s strongly held view that this delegation should await the moment she had chosen. Her employer felt a different time was appropriate. In response, she resigned. A constructive discharge occurs when the employer, rather than acting directly, “deliberately makes an employee’s working conditions so intolerable that the employee is forced into an involuntary resignation.” Young v. Southwestern Savings and Loan Assn., 509 F.2d 140, 144 (5th Cir.1975). In determining whether or not a constructive discharge has taken place, “the trier of fact must be satisfied that the ... working conditions would have been so difficult or unpleasant that a reasonable person in the employee’s shoes would have felt compelled to resign.” Alicea Rosado v. Garcia Santiago, 562 F.2d 114, 119 (1st Cir.1977); accord, Bourque v. Powell Electrical Mfg. Co., 617 F.2d 61 (5th Cir.1980). The Retreat’s treatment of Mrs. Pena cannot even remotely be described as intolerable. Mrs. Pena was simply asked to train her successor for a year and a half, rather than for the six months she herself envisioned. This was no more than a change in job responsibilities based on a reasonable business decision on the part of the Retreat which was paying Ms. Horan to learn Mrs. Pena’s job. Mrs. Pena was faced with no loss of pay or change in title. Mrs. Pena herself recognized the need to train Mary Horan to take over as administrator and had caused the Retreat to hire Horan and have her in place pending Pena’s planned retirement. The disagreement was simply over when to begin that training, with Mrs. Pena insisting on her timing rather than Dr. Beach’s. No reasonable person would have found this a compulsion to resign, particularly when members of the administration were asking her to stay on as a general supervisor" } ]

[ { "docid": "12535681", "title": "", "text": "VII simply requires that the remedial action taken be reasonably calculated to end the harassment.” Cooper, 106 F.Supp.2d at 495. Thus, the continued presence of Coville, and Fleet’s failure to transfer her to a position away from his vicinity are more properly considered as part of plaintiffs constructive discharge claim. Next, as for plaintiffs claim that Fleet retaliated against her by providing Coville with representation at the CHRO hearing, the only reference to this issue in the record is testimony from Mary Long of Fleet Human Resources, stating that Fleet’s attorney “told Tom that he would need to get an attorney.” Moreover, an employer is entitled to take “reasonable defensive measures” in protecting itself from a sexual harassment complaint. Torres v. Pisano, 116 F.3d 625, 640 (2d Cir.1997). Thus, assuming arguendo that Fleet provided Coville with representation at a CHRO hearing, Fleet was entitled to do so in order to defend itself against plaintiffs complaint. Finally, the Court turns to plaintiffs retaliatory constructive discharge claim. “Constructive discharge of an employee occurs when an employer, rather than directly discharging an individual, intentionally creates an intolerable work atmosphere that forces an employee to quit voluntarily.” Chertkova, 92 F.3d at 89 (citations and internal quotation marks omitted) (emphasis added); Stetson v. NYNEX Serv. Co., 995 F.2d 355, 360 (2d Cir.1993) (a constructive discharge claim is established by showing the employer deliberately created intolerable working conditions in an effort to force the employee to resign). To find that an employee was constructively discharged, the trier of fact “must be satisfied that the ... working conditions would have been so difficult or unpleasant that a reasonable person in the employee’s shoes would have felt compelled to resign.” Lopez v. S.B. Thomas, 831 F.2d 1184, 1188 (2d Cir.1987). Moreover, as one court has noted, [T]he only thing an employer must do to defeat a claim of constructive discharge is provide a working environment that is not “intolerable.” This, as the Second Circuit has held repeatedly, is a very low threshold. Put conversely, a working environment can be far from perfect and yet will not be held" }, { "docid": "16831688", "title": "", "text": "than acting directly, “ ‘deliberately makes an employee’s working conditions so intolerable that the employee, is forced into an involuntary resignation.’ ” Pena, 702 F.2d at 325 (quoting Young v. Southwestern Savings and Loan Assn., 509 F.2d 140, 144 (5th Cir.1975)). In determining whether or not a constructive discharge has taken place, “ ‘the trier of fact must be satisfied that the ... working conditions would have been so difficult or unpleasant that a reasonable person in the employee’s shoes would have felt compelled to resign.’ ” Pena, 702 F.2d at 325 (quoting Alicea Rosado v. Garcia Santiago, 562 F.2d 114, 119 (1st Cir.1977)). Here, evidence presented by Sobol of Newquist’s difficult personality and her stressful relationship with him does not rise to the level of “intolerable” working conditions. The requirements of constructive discharge are not met when the evidence shows only that an employee was dissatisfied with her work assignment, or that her working conditions were difficult or unpleasant, or that she preferred not to work for a particular supervisor. See Spence v. Maryland Casualty Co., 995 F.2d 1147, 1156 (2d Cir.1993). Moreover, Sobol has failed to prove that Newquist or Kidder Peabody deliberately created an intolerable environment because of Sobol’s sex or age. See Stetson, 995 F.2d at 359-60. Sobol cites Newquist’s desire to appoint a co-head to lead her group as well as his refusal to appoint her to firm committees as reasons for her resignation. However, constructive discharge is not established simply through evidence that an employee is dissatisfied with the nature of her job assignments. See Stetson, 995 F.2d at 360; see also Pena, 702 F.2d at 325. Moreover, although Sobol states that Newquist’s desire to hire a co-head compelled her to resign, she was aware of his intentions for two years prior to her resignation and even assisted in interviewing potential candidates for the position. In addition, the fact that Sobol negotiated for a consulting position with Kidder after her resignation indicates that her working conditions were not intolerable. Based on the foregoing, the panel’s decision to deny Sobol’s constructive discharge claims was not" }, { "docid": "6685410", "title": "", "text": "when an employer deliberately renders the employee’s working conditions intolerable, thereby forcing her to quit.” Baker v. John Morrell & Co., 382 F.3d 816, 829 (8th Cir.2004). To prove constructive discharge she must show: 1) a reasonable person in her situation would find the working conditions intolerable; and 2) her employer intended to force her to quit. Tatum v. Ark. Dep’t of Health, 411 F.3d 955, 960 (8th Cir.2005). “The conduct complained of must have been severe or pervasive enough to create an objectively hostile or abusive work environment, and additionally the plaintiff must subjectively perceive the environment to be abusive.” Johnson v. Runyon, 137 F.3d 1081, 1083 (8th Cir.1998) (internal quotation omitted). After carefully reviewing the record, we conclude Devin has failed to establish she was constructively discharged. The conduct she. alleges is simply neither severe nor pervasive enough to support her claim. She specifically claims Gilb’s alleged comments to her, her denial of guaranteed pay and a Route Builder, Gilb’s interference with her inventory, her unfair discipline and Schwartz’s criticism of her at the January 6, 2004, meeting support a finding of constructive discharge. We disagree. Gilb’s “gender-related” comments were sporadic and were not particularly demeaning or abusive. See Breeding, 164 F.3d at 1160 (holding two isolated, age-related comments “were not so demeaning or abusive as to demonstrate an intolerable working environment intended to force [the plaintiff] to quit”). Likewise, we have held feelings of being unfairly disciplined or criticized are insufficient to support a claim of constructive discharge. See Elnashar v. Speedway SuperAmerica, L.L.C., 484 F.3d 1046, 1058 (8th Cir.2007) (holding plaintiff was not constructively discharged where the record showed only that he felt unfairly criticized and his encounters with his supervisor were unpleasant). Although she claims male RMs received Route Builders and pay guarantees she was denied, she has not shown she was similarly situated to these RMs. Furthermore, by the time of her resignation, she had been assigned a Route Builder. As noted above, her claim Gilb interfered with her inventory is not supported by the record. Finally, she points to Schwartz’s comments at the" }, { "docid": "22110", "title": "", "text": "judgment on this issue. (Pl.Memo at 50-52.) In order to establish constructive discharge in support of a Title VII claim, a plaintiff must demonstrate that the employer “‘deliberately [made the] employee’s working conditions so intolerable that the employee is forced into an involuntary resignation.’ ” Pena v. Brattleboro Retreat, 702 F.2d 322, 325 (2d Cir.1983) (quoting Young v. Southwestern Savings & Loan Ass’n, 509 F.2d 140, 144 (5th Cir.1975)). In addressing the issue, the court must consider whether the “ ‘working conditions would have been so difficult or unpleasant that a reasonable person in the employee’s shoes would have felt compelled to resign.’ ” Id. at 325 (quoting Alicea Rosado v. Garcia Santiago, 562 F.2d 114, 119 (1st Cir.1977)). To withstand summary judgment, a plaintiff must tender sufficient evidence to show more than “dissatisfaction] with the nature of [her] assignments____[or] that the employee feels that the quality of [her] work has been unfairly criticized____or [that her] working conditions were difficult or unpleasant____” Stetson v. NYNEX Serv. Co., 995 F.2d 355, 360 (2d Cir.1993). See also Spence v. Maryland Casualty Co., 995 F.2d 1147, 1156 (2d Cir.1993). However, when an employee who has suffered from discriminatory conduct is required to engage in daily dealings with her alleged wrongdoer, she may suffer an “aggravated sense of humiliation” giving rise to constructive discharge. Halbrook v. Reichhold Chems., Inc., 735 F.Supp. 121, 126 (S.D.N.Y.1990). Although the court may ultimately find that Plaintiff has not established by a preponderance of the evidence that she was constructively discharged, I cannot say that her claim is insufficient as a matter of law. Considering the evidence in a light most favorable to Plaintiff, she has met the de minimis showing required to withstand summary judgment, and has tendered sufficient evidence to establish a genuine dispute as to this issue. First, as discussed above, Plaintiff established a prima facie ease of a hostile work environment resulting from sexual harassment, sufficient to withstand summary judgment. Although Levengood isolated her, Plaintiff was still required to reach out to him and interact with him in their small department after he made offensive" }, { "docid": "3940819", "title": "", "text": "environment,” but an employer is not required to guarantee a pleasant workplace). While the evidence may reflect unfavorably on the personality and management capabilities of her supervisors, it is insufficient to show that there was a pervasive hostility toward blacks. Accordingly, the court finds that Wal-Mart’s motion for summary judgment as to Hart’s hostile work environment claim is due to be granted. (b) Constructive Discharge The court likewise finds that Wal-Mart cannot be held liable under a constructive discharge theory, since the working conditions were not “so difficult that a reasonable person in the employee’s position would feel compelled to resign.” Derr v. Gulf Oil Corp., 796 F.2d 340, 344 (10th Cir.1986). In Hill v. Winn-Dixie Stores, Inc., 934 F.2d 1518 (11th Cir.1991), the Eleventh Circuit repeated the familiar standard by which constructive discharge claims are analyzed: ‘The law in this circuit with respect to constructive discharge is well-established. To show constructive discharge, the employee must prove that his [or her] working conditions were so difficult or unpleasant that a reasonable person would have felt compelled to resign.’ Before finding a constructive discharge, this court has traditionally required a high degree of deterioration in an employee’s working conditions, approaching the level of ‘intolerable.’ Id. at 1527 (citations omitted). A reasonable employee is one who does not “assume the worst” or “jump to conclusions too fast.” Garner v. Wal-Mart Stores, Inc., 807 F.2d 1536, 1539 (11th Cir.1987). The court finds that the conduct attributed to Wal-Mart — excessive and unwarranted criticism — is not the type of conduct that would make working conditions so intolerable that a reasonable person would feel compelled to resign. Boze v. Branstetter, 912 F.2d 801, 804-06 (5th Cir.1990) (unwarranted criticism, probation, poor performance evaluation and withdrawal of responsibilities not constructive discharge as a matter of law); Stetson v. NYNEX Serv. Co., 995 F.2d 355, 360-61 (2d Cir.1993) (undue criticism and a poor performance evaluation not sufficient for constructive discharge); Spence v. Maryland Casualty Co., 995 F.2d 1147, 1156-58 (2d Cir.1993) (pervasive criticism accompanied by yelling and pounding on table not constructive discharge). Accordingly, the court finds" }, { "docid": "12729673", "title": "", "text": "did not “resign” during her medical leave persuasive. The question, directed to a lay witness who might well not understand the relationship between resignation and constructive discharge, does not squarely contradict the text of Attorney Greene’s letter. Finally, AHP’s self-serving behavior subsequent to the January 1997 correspondence, including its unilateral sending of a letter of termination in December 1998, does nothing to negate the legal effect of the earlier letters. Thus, I find that Plaintiffs claim of constructive discharge is not time barred. The question then becomes whether Plaintiff has offered some evidence from which a reasonable juror could conclude that AHP “deliberately created working conditions that were so difficult or unpleasant that a reasonable person in the employee’s shoes would have felt compelled to resign.” Spence v. Maryland Cas. Co., 995 F.2d 1147, 1156 (2d Cir.1993). See also Stetson v. NYNEX Serv. Co., 995 F.2d 355, 360 (2d Cir.1993)(constructive dis charge requires showing work conditions “so intolerable that [the plaintiff] was forced into an involuntary resignation.”)(quoting Pena v. Brattleboro Retreat, 702 F.2d 322, 325 (2d Cir.1983)). It is the Plaintiffs burden to demonstrate that she had no alternative to resignation. See Pena 702 F.2d at 325. I conclude that she has not offered any evidence from which a reasonable juror could conclude that her working conditions were in fact intolerable. When Plaintiff resigned, she had been out of the workplace for more than seven months, and therefore could not have been experiencing intolerable working ' conditions. The only purportedly intolerable aspect of her situation was the prospect that she might have to come back to work under Dumas. But it is undisputed that AHP’s offer to Plaintiff would not have required her to return to work under Dumas. AHP offered her the opportunity to transfer elsewhere in the plant. The issue, therefore, is whether Plaintiff has offered any evidence from which a reasonable juror could find that the work conditions to which she would have returned would have been so intolerable as to compel her to resign. This, it seems turns on two questions: (1) would a transfer have" }, { "docid": "9480084", "title": "", "text": "(2d Cir.1983)). Intolerable working conditions have been described as conditions “so difficult or unpleasant that a reasonable person in the employee’s shoes would have felt compelled to resign.” Chertkova, 92 F.3d at 89 (quoting Lopez v. S.B. Thomas, Inc., 831 F.2d 1184, 1188 (2d Cir.1987)). A prerequisite to a finding of constructive discharge is proof that the “employer deliberately created working conditions” effectively forcing the employee to resign. Kader v. Paper Software, Inc., 111 F.3d 337, 341 (2d Cir.1997). Constructive discharge requires more than evidence that the “employee was dissatisfied with the nature of his assignments,” Stetson, 995 F.2d at 360, or that the “employee disagreed with the employer’s criticisms of the quality of his work, or did not receive a raise, or preferred not to continue working for that employer. Nor is the test merely whether the employee’s working conditions were difficult or unpleasant.” Spence v. Maryland Cas. Co., 995 F.2d 1147, 1156 (2d Cir.1993) (citations omitted). Additionally, the employee’s subjective perceptions are not determinative. See Nobler v. Beth Israel Med. Ctr., 702 F.Supp. 1023, 1030 (S.D.N.Y.1988) (and cases cited therein) (“Subjective feelings held by an employee as to the intolerable nature of his or her position are not sufficient to lead to a finding of constructive discharge.”). Not only is it necessary to show intolerable working conditions, but the plaintiff must also allege facts sufficient to prove that these conditions were intentionally created by the employer for the purpose of inducing the employee’s resignation or retirement. Plaintiff submitted a letter of resignation on May 21, 1990, expressing her gratitude and appreciation for “the splendid cooperation and backing I have received, the rich and exciting experiences, and always the wonderful association with so many grand people.” (PL’s Ex. K.) The Court disregards this letter realizing it was written, in part, to ensure a congenial departure and the prospect of favorable recommendation letters, yet conversely, there has been no evidence provided that could reasonably lead to the conclusion that HP’s actions were carried out with the specific intent of inducing Victory’s resignation. Thus, where an employee is not satisfied with" }, { "docid": "3226144", "title": "", "text": "amount of the pay increase, which is not an actionable adverse employment action. Id. Finally, her complaint that she had to work the drive-through window without assistance concerns a work assignment, which is specifically excluded from the list of actionable adverse employment actions. Breaux, 205 F.3d at 157. Chiasson has thus failed to produce any evidence that would raise a genuine issue as to whether any of the things she complains about were adverse employment actions. Chiasson also alleges that all of the incidents together amounted to a campaign of hostile retaliation that resulted in her constructive discharge, which is an adverse employment action. To establish that she was constructively discharged, a plaintiff must prove that her working conditions were so difficult or unpleasant that a reasonable person in her shoes would have felt compelled to resign. Robertson v. LSU Med. Ctr., 54 Fed.Appx. 591, 2002 WL 31730246, at *1 (5th Cir.2002) (citation omitted). A claim of constructive discharge requires the plaintiff to show “a greater severity or pervasiveness of harassment than the minimum required to prove a hostile work environment.” Id. (citation omitted). A plaintiffs resignation rises to the level of actionable constructive discharge only if an employer “deliberately makes an employee’s working conditions so intolerable that the employee is forced into involuntary resignation.” Ugalde v. W.A. McKenzie Asphalt Co., 990 F.2d 239, 242-43 (5th Cir.1993). The Court does not find evidence to suggest that Chiasson was so severely harassed that a reasonable person in her position would have felt compelled to resign. Chiasson testified that she suffered harassment in the form of lower evaluation scores, increased written and verbal criticism, social exclusion, and decreased assistance from her co-workers. In Robertson, an employee complained that incidents of mistreatment by his employer caused him to resign. 54 Fed.Appx. 591, 2002 WL 31730246, at *1. The Fifth Circuit held that because the employee had not produced any evidence to suggest that the incidents resulted in an official disciplinary action against him, a reduction in job responsibilities, or a reassignment to menial work, he could not show that a reasonable person in" }, { "docid": "8250294", "title": "", "text": "employers liable for failure of supervisors to take action to prevent retaliation by coworkers. See Juarez v. Utah, 263 FedAppx. 726, 737 (10th Cir.2008). Nueterra notes that an employer is liable for coworker retaliatory harassment only if supervisory personnel orchestrate it or know about it and acquiesce in it. See id. Here, viewed in a light most favorable to plaintiff, a jury could find that Nueterra acquiesced in a retaliatory hostile work environment at Ridgewood. Moreover, given the close relationship between Nueterra and Ridgewood, a jury could find that Nueterra had the means to influence Ridgewood to eliminate the hostile work environment. The Court finds that Nueter-ra is not entitled to summary judgment on plaintiffs claim of retaliatory harassment. B. Retaliatory Constructive Discharge Nueterra asserts that because she voluntarily resigned, it is entitled to summary judgment on Furr’s claim that it constructively discharged her in retaliation for protected opposition. The Court evaluates the voluntariness of an employee’s resignation under an objective, totality of the circumstances standard. Id. The constructive discharge bar is “quite high.” Garrett v. Hewlett-Packard Co., 305 F.3d 1210, 1221 (10th Cir.2002). The question is' not whether plaintiffs working conditions were difficult or unpleasant. See Exum v. U.S. Olympic Comm., 389 F.3d 1130, 1135 (10th Cir. 2004). Instead, plaintiff must show that she had no choice but to quit. The Court applies an objective test; the employee’s subjective views of the situation and the employer’s subjective intent are not relevant. Nueterra argues that plaintiffs claim that her conditions were intolerable is belied by the fact that she waited to resign until after she found another job. Nueterra argues that if the conditions were truly intolerable, plaintiff would have resigned immediately, even without the prospect of another job. Land v. Midwest Office Tech., Inc., 114 F.Supp.2d 1121, 1146 (D.Kan. 2000) (no constructive discharge in part because plaintiff' sought jobs with other employers before she resigned); Sims v. Brown & Root Indus. Servs., Inc., 889 F.Supp. 920, 931 (W.D.La.1995) (same); see also Canady v. John Morrell & Co., 247 F.Supp.2d 1107,1130 (ND.Iowa 2003) (evidence that plaintiff did not quit until" }, { "docid": "8114515", "title": "", "text": "known about the conduct and failed to prevent it. An employer is liable under the CHRL for the conduct of non-supervisory employees creating a hostile work environment only where the employer “knew of the employee’s or agent’s discriminatory conduct, and acquiesced in such conduct or failed to take immediate and appropriate corrective action,” N.Y.C. Admin. - Code § 8-107(13)(b)(2), or “should have known of the employee’s or agent’s discriminatory conduct and failed to exercise reasonable diligence to prevent such discriminatory conduct,” N.Y.C. Admin. Code § 8-107(13)(b)(3). As Ochei has failed to allege that her supervisors made the discriminatory comments, were or should have been aware of them, or failed to take remedial action, her hostile work environment claim must be dismissed. IV. Constructive Discharge Has Not Been Established A plaintiffs claim for constructive discharge requires the plaintiff to prove that her employer deliberately and discriminatorily created work conditions “so intolerable that a reasonable person in the employee’s position would have felt compelled to resign.” Pa. State Police v. Suders, 542 U.S. 129, 141, 124 S.Ct. 2342, 159 L.Ed.2d 204 (2004). Upon that showing, the employee’s decision to resign “is assimilated to a formal discharge for remedial purposes.” Id. A claim of constructive discharge must be dismissed as a matter of law unless the evidence is sufficient to permit a rational trier of fact to infer that the employer deliberately created working conditions that were “so difficult or unpleasant that a reasonable person in the employee’s shoes would have felt compelled to resign.” Stetson v. NYNEX Serv. Co., 995 F.2d 355, 361 (2d Cir.1993) (citations and internal quotations omitted) (holding no claim for constructive discharge where employee was dissatisfied with his compensation, assignments, and criticisms of his work, but rank and salary were never reduced); see also Kader v. Paper Software, 111 F.3d 337, 339 (2d Cir.1997); Martin v. Citibank, N.A., 762 F.2d 212, 221 (2d Cir.1985) (no claim where employee had unpleasant assignments and difficult relationship with supervisor); Pena v. Brattleboro Retreat, 702 F.2d 322, 324-26 (2d Cir.1983) (no claim where employee was dissatisfied with nature of work assignments and" }, { "docid": "22112", "title": "", "text": "comments to her as well as to her subordinates and co-workers. Not only did her position require such contact, but Cuzzi specifically instructed Plaintiff to make a concerted effort to reach out to Levengood. Whether a reasonable person might find this environment so unpleasant and difficult that she would feel compelled to resign is a factual question properly left for trial, see, e.g., Barbetta, 669 F.Supp. at 572 (evidence of hostile and sexually offensive work environment which reasonable woman in plaintiffs posi tion could have found intolerable was sufficient to defeat summary judgment on constructive discharge claim), particularly because much of Levengood’s criticism was not directed toward Plaintiffs job performance but was gratuitous and sexually degrading. Compare Spence, 995 F.2d at 1156-58. Moreover, a factfinder may conclude that, even after Levengood stopped making harassing comments, Plaintiffs working conditions became increasingly difficult: she was confronted with Levengood’s refusal to answer her memoranda or phone calls, thereby making it difficult for her to perform the projects he assigned to her; Levengood undermined her authority with her staff, allegedly in retaliation for her complaints; Cuzzi and Sullivan’s responses, or lack thereof, made Plaintiff feel as though she was being “gaslighted.” In addition, Sullivan’s refusal to meet with Plaintiff to discuss any remedial action or address her concerns about the deteriorating working conditions made Plaintiff feel as though there was no hope for improvement. Compare Watts, 724 F.Supp. at 109 (no constructive discharge where employer sought to prevent plaintiff’s resignation by granting her request to change her class assignment at police academy after employer had failed to respond to her complaints of sexual harassment by dispelling workplace hostility). In addition, there are certain statements in the record that could be viewed as evidencing an intent on Defendants’ part to create intolerable working conditions. For example, when Levengood arrived on the job, he remarked to another social worker, “If something happens to Cynthia, would you want her job?” Further, Cuzzi warned Plaintiff that if she filed an EEOC complaint, “there would be no way” that the she and Levengood could work together. (Dortz Aff. ¶" }, { "docid": "1807347", "title": "", "text": "activity; (3) she suffered an adverse employment action; and (4) there was a causal connection between the protected activity and the adverse employment action. See Gordon v. New York City Bd. of Educ., 232 F.3d 111, 116 (2d Cir.2000). For purposes of this motion, Trans World has conceded the first two prongs. Defendant primarily contests the third prong—that O’Dell suffered an adverse employment action following her complaint of sexual harassment to Heller. 1. Constructive Discharge Plaintiff contends that she was constructively discharged in retaliation for her complaint of sexual harassment. In support of her claim of constructive discharge, plaintiff argues that she believed that Trans World would not take her sexual harassment complaint seriously. This fear was based on the following acts: (1) Heller did not keep plaintiffs complaint of sexual harassment confidential for twenty-four hours, as she had promised; (2) Trans World initially refused to communicate with O’Dell’s counsel; and (3) O’Dell was told that her doctor’s note was insufficient, leading her to believe that “Trans World was attempting to create an issue about her medical condition”. PI. Mem. at 22-23. In order to maintain a claim for constructive discharge, plaintiff must show that Trans World deliberately made her working conditions so intolerable that she was forced into an involuntary resignation. See Spence v. Maryland Cas. Co., 995 F.2d 1147, 1155 (2d Cir.1993). Plaintiff must demonstrate that Trans World created working conditions that were “so difficult or unpleasant that a reasonable person in the employee’s shoes would have felt compelled to resign.” Stetson v. NYNEX Serv. Co., 995 F.2d 355, 361 (2d Cir.1993). The most common constructive discharge cases involve scenarios where the employee is threatened with firing unless she resigns. See Dean v. Westchester County Dist. Attorney’s Office, 119 F.Supp.2d 424, 430-31 (S.D.N.Y.2000); Doria v. Cramer Rosenthal McGlynn, Inc., 942 F.Supp. 937, 947 (S.D.N.Y.1996). The Second Circuit has stated that the mere dissatisfaction with work assignments, unfair criticism, or working conditions that can be categorized as unpleasant, do not constitute a constructive discharge. See Spence, 995 F.2d at 1156; Stetson, 995 F.2d at 360. It is also insufficient" }, { "docid": "1807348", "title": "", "text": "her medical condition”. PI. Mem. at 22-23. In order to maintain a claim for constructive discharge, plaintiff must show that Trans World deliberately made her working conditions so intolerable that she was forced into an involuntary resignation. See Spence v. Maryland Cas. Co., 995 F.2d 1147, 1155 (2d Cir.1993). Plaintiff must demonstrate that Trans World created working conditions that were “so difficult or unpleasant that a reasonable person in the employee’s shoes would have felt compelled to resign.” Stetson v. NYNEX Serv. Co., 995 F.2d 355, 361 (2d Cir.1993). The most common constructive discharge cases involve scenarios where the employee is threatened with firing unless she resigns. See Dean v. Westchester County Dist. Attorney’s Office, 119 F.Supp.2d 424, 430-31 (S.D.N.Y.2000); Doria v. Cramer Rosenthal McGlynn, Inc., 942 F.Supp. 937, 947 (S.D.N.Y.1996). The Second Circuit has stated that the mere dissatisfaction with work assignments, unfair criticism, or working conditions that can be categorized as unpleasant, do not constitute a constructive discharge. See Spence, 995 F.2d at 1156; Stetson, 995 F.2d at 360. It is also insufficient that the employee disagreed with the business judgment of the employer. See Pena v. Brattleboro Retreat, 702 F.2d 322, 325 (2d Cir.1983). The employee’s subjective perceptions are not determinative. See Nobler v. Beth Israel Med. Ctr., 702 F.Supp. 1023, 1030 (S.D.N.Y.1988). Plaintiffs constructive discharge claim fails for three reasons. First, failing to take a sexual harassment complaint seriously does not constitute a constructive discharge. Courts finding instances of constructive discharge have required more serious conduct than that alleged by plaintiff. See, e.g., Chertkova v. Conn. Gen. Life Ins. Co., 92 F.3d 81, 89 (2d Cir.1996) (finding female employee had been constructively discharged because her boss repeatedly “yelled at her in insulting terms” in front of others, “mocked her”, “treated [her] arbitrarily and severely criticized [her] despite her strong performance”, and “engaged in a pattern of baseless criticisms”); cf. Mesenbourg v. Dun & Bradstreet Software Servs., Inc., No. 97 Civ. 02291, 2001 WL 256153, at *4 (D.Conn. Mar. 8, 2001) (rejecting conten tion that employment conditions became intolerable where employee was required to travel more, was" }, { "docid": "5338719", "title": "", "text": "any explanation of his conduct; refused to return to his position of employment despite the Defendants’ requesting that he do so; and consequently abandoned his employment. For the Court to find a constructive discharge, a plaintiff must show that the employer “intentionally createfd] a work atmosphere so intolerable that [the employee] is forced to quit involuntarily.” Terry v. Ashcroft, 336 F.3d 128, 151-52 (2d Cir.2003) (holding that allegations of constructive discharge, “viewed as a whole, [must be] so difficult or unpleasant that a reasonable persons in the employee’s shoes would have felt compelled to resign”). Further, “[w]hether working conditions are sufficiently intolerable to constitute a constructive discharge ‘is assessed objectively by reference to a reasonable person in the employee’s position.’ ” Borski v. Staten Island Rapid Transit, 413 Fed.Appx. 409, 411 (2d Cir.2011) (quoting Petrosino v. Bell Atl., 385 F.3d 210, 230 (2d Cir.2004)). The standard for constructive discharge is a demanding one because it “cannot be proven merely by evidence that an employee ... preferred not to continue working for that employer ... [or that] the employee’s working conditions were difficult or unpleasant.” Spence v. Maryland Cas. Co., 995 F.2d 1147, 1156 (2d Cir.1993); Bennett v. Watson Wyatt & Co., 136 F.Supp.2d 236, 251 (S.D.N.Y.2001) (noting that “[t]he standard for constructive discharge is even higher” than that used to show a hostile work environment); see also Madray v. Long Island Univ., 789 F.Supp.2d 403, 410 (E.D.N.Y.2011) (observing that “vague, general allegations, quite incapable of inviting a meaningful EEOC response [cannot be relied upon as a] predicate [for] subsequent claims in the federal lawsuit”). Here, the Plaintiff has not included a separate count in the Amended Complaint based upon constructive discharge nor does he address it in any of his supplemental documents. To the extent that the Amended Complaint can be read to assert a claim for constructive discharge, the allegations contained therein are insufficient to state such a claim because the Plaintiff has not sufficiently pleaded an intolerable work place. See Miller v. Praxair, Inc., No. 5 Civ. 402, 2009 WL 1748026, at *6 (D.Conn. June 18, 2009) (“A" }, { "docid": "7561935", "title": "", "text": "are subject to the same burden-shifting applicable to Title VII claims, as outlined in McDonnell Douglas and St. Mary’s.”) B. Basis for Arbitral Decision In this case, defendants do not dispute that plaintiff has satisfied the first two elements; he is a member of a protected age group and he was qualified for his position. However, defendants claim that he was not discharged, and that even if he was, defendants have shown legitimate, nondiscriminatory reasons for the discharge. The Second Circuit has noted, “[a] constructive discharge ... occurs when an employer deliberately makes an employee’s working conditions so intolerable that the employee is forced into voluntary resignation. ... [A] constructive discharge cannot be proved merely by evidence that an employee disagreed with the employer’s criticisms of the quality of his work, or did not receive a raise, or preferred not to continue working for that employer. Nor is the test merely whether the employee’s working conditions were difficult or unpleasant.” Spence v. Maryland Cas. Co., 995 F.2d 1147, 1156 (2d Cir.1993) (citations omitted). Thus, for example, if an employee’s performance is criticized in ethnically degrading, lewd and obscene terms, his complaints to the vice president are met with recommendations by the latter that he resign, and he is then put on 90 day suspension and told that he will be discharged as soon as the 90 day period ends, a constructive eviction has been established. Lopez v. S.B. Thomas, 831 F.2d 1184 (2d Cir.1987). On the other hand, a nursing home administrator who is planning her retirement and who is told by her employer to concentrate on dealings with government regulatory matters, thereby transferring to her successor responsibility for supervision of day-to-day operations, has not been constructively discharged. Pena v. Brattleboro Retreat, 702 F.2d 322 (2d Cir.1983). There is ample basis from which to conclude that in this case plaintiff was not constructively discharged. First of all, there was evidence that plaintiff had begun investigating the possibility of alternative employment as early as the summer of 1990, more than six months before he resigned. Secondly, defendants have put forward evidence" }, { "docid": "22124948", "title": "", "text": "performance”), prompting some district courts in this circuit to conclude that specific intent is necessary to a constructive discharge claim. See Ternullo v. Reno, 8 F.Supp.2d 186, 191 (N.D.N.Y.1998). Certainly, where such evidence exists, the mens rea requirement is easily established. Nevertheless, this court has not expressly insisted on, proof of specific intent. Deferring decision on the issue in Whidbee v. Garzarelli Food Specialties, Inc., the court observed that if a plaintiff suing for constructive discharge cannot show specific intent, he or she must at least demonstrate that the employer’s actions were “deliberate” and not merely “negligent or ineffective[ ].” 223 F.3d at 74. Turning to the second inquiry, whether the employer’s deliberate actions rendered the employee’s work conditions so intolerable as to compel resignation, we note that this issue is assessed objectively by reference to a reasonable person in the employee’s position. See Pennsylvania State Police v. Suders, 124 S.Ct. at 2351 (“The inquiry is objective: Did working conditions become so intolerable that a reasonable person in the employee’s position would have felt compelled • to resign?”); Terry v. Ashcroft, 336 F.3d at 152 (“[W]orking conditions are intolerable when, viewed as a whole, they are ‘so difficult or unpleasant that a reasonable person in the employee’s shoes would have felt compelled to resign.’ ”) (quoting Chertkova v. Conn. Gen. Life Ins. Co., 92 F.3d 81, 89 (2d Cir.1996)). Applying these principles to Petrosino’s case, we conclude that she has failed to adduce sufficient evidence to support a constructive discharge claim. Petrosino asserts that by February 1999, a number of factors had combined to render her already difficult work conditions so intolerable that she was compelled to resign: (1) years of harassment in a work environment hostile to women, including years of being denied promotion opportunities because of her sex; (2) recommendations by her I & R supervisors that she transfer to CX & M to secure better promotion opportunities, when, in fact, no such promotion would be possible for more than a year; and (3) her I & R supervisor’s refusal to allow her to serve as a temporary" }, { "docid": "22111", "title": "", "text": "Spence v. Maryland Casualty Co., 995 F.2d 1147, 1156 (2d Cir.1993). However, when an employee who has suffered from discriminatory conduct is required to engage in daily dealings with her alleged wrongdoer, she may suffer an “aggravated sense of humiliation” giving rise to constructive discharge. Halbrook v. Reichhold Chems., Inc., 735 F.Supp. 121, 126 (S.D.N.Y.1990). Although the court may ultimately find that Plaintiff has not established by a preponderance of the evidence that she was constructively discharged, I cannot say that her claim is insufficient as a matter of law. Considering the evidence in a light most favorable to Plaintiff, she has met the de minimis showing required to withstand summary judgment, and has tendered sufficient evidence to establish a genuine dispute as to this issue. First, as discussed above, Plaintiff established a prima facie ease of a hostile work environment resulting from sexual harassment, sufficient to withstand summary judgment. Although Levengood isolated her, Plaintiff was still required to reach out to him and interact with him in their small department after he made offensive comments to her as well as to her subordinates and co-workers. Not only did her position require such contact, but Cuzzi specifically instructed Plaintiff to make a concerted effort to reach out to Levengood. Whether a reasonable person might find this environment so unpleasant and difficult that she would feel compelled to resign is a factual question properly left for trial, see, e.g., Barbetta, 669 F.Supp. at 572 (evidence of hostile and sexually offensive work environment which reasonable woman in plaintiffs posi tion could have found intolerable was sufficient to defeat summary judgment on constructive discharge claim), particularly because much of Levengood’s criticism was not directed toward Plaintiffs job performance but was gratuitous and sexually degrading. Compare Spence, 995 F.2d at 1156-58. Moreover, a factfinder may conclude that, even after Levengood stopped making harassing comments, Plaintiffs working conditions became increasingly difficult: she was confronted with Levengood’s refusal to answer her memoranda or phone calls, thereby making it difficult for her to perform the projects he assigned to her; Levengood undermined her authority with her staff," }, { "docid": "13491773", "title": "", "text": "and noting that the move “negatively affected [her] reputation” at Bergmann. (Compl., ¶¶ 50, 53.) As authority cited by Bergmann itself makes clear, this is sufficient to state a claim that the move was adverse. See Galabya v. New York City Bd. of Educ., 202 F.3d 636, 640 (2d Cir.2000) (“A materially adverse change might be indicated by ... a less distinguished title ...”). (Emphasis added.) More is not required at this stage. See, e.g., Twombly, 550 U.S. at 570, 127 S.Ct. 1955 (“[W]e do not require heightened fact pleading of specifics, but only enough facts to state a claim to relief that is plausible on its face.”). b. Discharge A plaintiff advancing a claim that she was constructively discharged must allege “working conditions so intolerable that a reasonable person would have felt compelled to resign.” Pennsylvania State Police v. Suders, 542 U.S. 129, 147, 124 S.Ct. 2342, 2354, 159 L.Ed.2d 204 (2004). “The Second Circuit has held that a [claim for] constructive discharge cannot be established [or stated] simply through evidence [or allegations] that the ‘employee was dissatisfied with the nature of h[er] assignments,’ ‘the employee feels that the quality of her work has been unfairly criticized,’ or ‘the employee’s working conditions were difficult or unpleasant.’ ” Alfieri v. SYSCO Food Servs.-Syracuse, 192 F.Supp.2d 14, 23 (W.D.N.Y.2001) (quoting Stetson v. NYNEX Serv. Co., 995 F.2d 355, 360 (2d Cir.1993)). Taking Lehman’s allegations as true, Bergmann forced her to take a less prestigious position, awarded her one lower bonus, and occasionally ostracized her from important corporate decisions. Simply put, these facts do not give rise to a reasonable inference that Lehman was compelled to resign. It is not enough that a reasonable person would have “preferred not to continue working for that employer.” Spence v. Maryland Cas. Co., 995 F.2d 1147, 1156 (2d Cir.1993). Lehman must allege that her job had become “intolerable” to the point that she was “forced into an involuntary resignation.” Pena v. Brattleboro Retreat, 702 F.2d 322, 325 (2d Cir.1983). This is a high standard, and Lehman must allege facts that give rise to an inference" }, { "docid": "9480083", "title": "", "text": "at 1452 (plaintiffs failure to provide sufficient evidence establishing that she performed the equivalent of male colleagues with equal credentials, notwithstanding four salary charts introduced into evidence, compelled the circuit court’s reversal precluding her EPA claim). However, Plaintiff will be allowed to present evidence of salary differentiation in support of her disparate impact claim. VIII DID PLAINTIFF ESTABLISH A CONSTRUCTIVE DISCHARGE CLAIM Although never mentioned in Plaintiffs complaint, her Memorandum of Law in Opposition to Summary Judgment alleges a claim of constructive discharge. Defendant would be prejudiced by Plaintiffs initial assertion of this claim at summary judgment, however, because a constructive discharge cause of action is unsupported by the record, as discussed infra, the propriety of raising a claim at this late juncture need not be considered. “To establish a ‘constructive discharge,’ a plaintiff must show that the employer ‘deliberately ma[de his] working conditions so intolerable that [he was] forced into an involuntary resignation.’ ” Stetson v. NYNEX Serv. Co., 995 F.2d 355, 360 (2d Cir.1993) (quoting Pena v. Brattleboro Retreat, 702 F.2d 322, 325 (2d Cir.1983)). Intolerable working conditions have been described as conditions “so difficult or unpleasant that a reasonable person in the employee’s shoes would have felt compelled to resign.” Chertkova, 92 F.3d at 89 (quoting Lopez v. S.B. Thomas, Inc., 831 F.2d 1184, 1188 (2d Cir.1987)). A prerequisite to a finding of constructive discharge is proof that the “employer deliberately created working conditions” effectively forcing the employee to resign. Kader v. Paper Software, Inc., 111 F.3d 337, 341 (2d Cir.1997). Constructive discharge requires more than evidence that the “employee was dissatisfied with the nature of his assignments,” Stetson, 995 F.2d at 360, or that the “employee disagreed with the employer’s criticisms of the quality of his work, or did not receive a raise, or preferred not to continue working for that employer. Nor is the test merely whether the employee’s working conditions were difficult or unpleasant.” Spence v. Maryland Cas. Co., 995 F.2d 1147, 1156 (2d Cir.1993) (citations omitted). Additionally, the employee’s subjective perceptions are not determinative. See Nobler v. Beth Israel Med. Ctr., 702 F.Supp." }, { "docid": "1626254", "title": "", "text": "a comparable performance evaluation from Page as she had received previously from Bearden. Jones did not allege any fabrication or factual inaccuracies in the memoranda placed in her personnel file. Finally, Jones was not singled out to attend any special .training. Although Jones objected to attending a LEADS counseling session, all sheriff office employees were required to attend one LEADS counseling session. Without proof of a requisite adverse employment action, we conclude Jones has not established a constitutional injury. Therefore, her retaliation claim fails as a matter of law. Thus, we need not address the issue of any causal connection between the First Amendment protected political activity and any adverse employment action. 5. Constructive discharge. The defendants also appeal the district court’s denial of its motion for judgment as a matter of law on the plaintiffs constructive discharge claim. Jones resigned in the belief she would be terminated. We have previously ruled that a resignation is actionable under § 1983 only if it qualifies as a constructive discharge for a prohibited reason, such as political retaliation. See Irving v. Dubuque Packing Co., 689 F.2d 170, 172 (10th Cir.1982), cited in Klein v. McGowan, 198 F.3d 705, 710 (8th Cir.1999). To prove constructive discharge, a plaintiff must establish the defendants de liberately made or allowed her working conditions “to become so intolerable that the employee had no other choice but to quit.” Id. (quoting Irving, 689 F.2d at 172). A plaintiff must take affirmative steps short of resigning that a reasonable employee would take to make her conditions of employment more tolerable. Id. While acknowledging the offensive environment in which Jones worked, the facts, when viewed most favorably to her, do not support the jury’s findings that her working conditions had become so intolerable she had no other reasonable choice but to quit, or that she had taken steps short of resignation to improve her working conditions. Constructive discharge requires considerably more proof than an unpleasant and unprofessional environment. For seven years (long before Jones’s support for Bearden’s election over Fitzgerald) Jones endured disrespect, hostility, and ostracism from the front office" } ]

[ { "docid": "17602477", "title": "", "text": "trial’ is often used, but not often defined. It is of broad scope. While we shall not undertake to give a formal definition of the term, yet it may not he amiss to mention, in part at least, its content. * * * It means a trial before an impartial judge, an impartial jury, and in an atmosphere of judicial calm. ?' '* * Being impartial means being indifferent as between the parties. * * • It means that, while the judge inay and should direct and control the proceedings, and may exercise his right to comment on the evidence, yet he may not extend his activities so far as to become in effect either an assisting prosecutor or a thirteenth juror.” It is not always possible during the trial of a hotly contested ease for a judge, however impartial he may be, to maintain in the courtroom that atmosphere of complete judicial calm which is so much to he desired. We must not overlook the fact that the human element cannot be entirely eliminated from the trial of lawsuits. While counsel owe to the court, because of the position which he occupies, the utmost deference and respect,, and while the eourt owes to them an equal obligation of courtesy and patience and consideration, nevertheless sharp differences of opinion do arise in the heat of trial and things are said which were better left unsaid. Such incidents are often regarded as trivial during the trial of a ease and are quickly lost sight of, but, when set forth in the record and emphasized by counsel on -appeal, they take on an importance which they never actually possessed. It is impossible to gather from the cold record, particularly when it is in narrative form, the atmosphere of the trial itself, the manner in which the words were spoken, or the probable effect, if any, which they had upon the merits of the controversy. Critical remarks of the eourt frequently cut both ways, if they cut at all. Colloquies between counsel and colloquies between the eourt and counsel as to the rales" } ]

[ { "docid": "22069342", "title": "", "text": "indicate that as there is to be no abatement the Oklahoma Natural Gas Company for litigating purposes is still in being and continues to be a party before this Court. The showing made for the motion is that the Oklahoma Natural Gas Company was by a decree of the district court of Tulsa County, Oklahoma, duly and.-legally dissolved as á corporation. There is nothing to indicate why the company was dissolved. We may assume but we do not know that it was in anticipation of its dissolution by force of law and that the proceeding- was undertaken in order to transfer its assets, its obligations and its liabilities to another corporation which is averred to be a corpora tion of another State, to wit, of Delaware, although _the seal which is attached to the consent of the Oklahoma Natural Gas Corporation by its president and secretary and accompanies the motion, shows that it was incorporated not in Delaware but in Maryland. The motion is signed by counsel for the plaintiff in error, the Oklahoma Natural Gas Company. He does not explain how he continues to represent plaintiff in error, if in fact it has ceased to be, as he represents to this Court. In the absence of a fuller showing as to just what the proceeding was in the district court of Tulsa County in respect to the dissolution of the old company, and in view of the provisions of the Oklahoma statute, we think it unwise to grant the motion for. substitution, even though with the consent of the defendants in error. It may be that with the disclosure of all the facts and circumstances we may find that what was done with the consent of all the parties to this suit is in fact a novation which we can make effective. United States v. City Bank, 19 How. 385; Ex parte Railroad, 95 U. S. 221, 222. We are not advised as to whether, at the time of the dissolution of the corporation by time, liquidating trustees of the old company were appointed under the statute. If they" }, { "docid": "4033125", "title": "", "text": "have suspended the dissolution on its own. The taxpayer in Kinsey had argued, like the taxpayer herein, that the date of the gift preceded the time when an enforceable right to the liquidation proceeds accrued (i.e., when the corporation’s board passed the final resolution of dissolution), but the court held: With so much having transpired not only before the date of Kinsey’s gift but also before the date of the final resolution to dissolve in September, we cannot consider the September 15 resolution a necessary and important accessory to the April authorization to liquidate. This final resolution was truly a mere formality, required by state law to officially bring the liquidation to an end. Similarly, the corporation’s filing of the Articles of Dissolution and Liquidation with the state of Missouri were merely ministerial acts necessary to. complete the liquidation under state law. We cannot countenance transfers such as presented herein and eviscerate established principles of anticipatory assignment of income by considering remote, hypothetically possible abandonments in the face of unrebutted evidence that the taxpayer intended to and did, in fact, complete the liquidation of his corporation. Through his continued control of the corporation he had foreclosed the possibility of having his intent vitiated. He had made contributions not of stock, but of the proceeds of the liquidation, and he is properly taxable on the gain arising therefrom. Judgment is hereby reversed. . The taxpayer’s wife, Maxine G. Hudspeth, is a party to this action only by reason of having filed a “joint return” with him for the year in question. . Kinsey is presently on appeal to the U. S. Court of Appeals for the Second Circuit." }, { "docid": "23478693", "title": "", "text": "clearly each additional contribution need not necessarily constitute separate purchases; and that, therefore, the trial judge was absolutely correct in submitting this question to the jury. Eirors Alleged in Conduct of Trial The defendants, in addition, reason that none of the errors in the conduct of the trial alleged by plaintiffs is of sufficient magnitude — if, indeed, they are errors at all — to warrant reversal. In fact, they marvel that plaintiffs could find only three small “errors” of which to complain in a trial of the magnitude and complexity of this one. (a) Defendants argue that the trial court correctly overruled plaintiffs’ objection to a cross-examination question to Freeman, Jr., concerning his total 1971 income, since matters pertaining to his income and wealth were put in issue during direct examination by his own counsel. Such questions were, contend defendants, particularly relevant to the issue of the possible tax planning motivation of the investors in entering the D-E Westmont Limited Partnership in the first place. Defendants also note that plaintiffs took no objection to similar questions asked of Freeman concerning his 1972 and 1973 income, and conclude that a trial court’s ruling on cross-examination cannot be disturbed on appeal in the absence of a clear abuse of discretion. (b) The developers further argue that the trial court properly declined to order a mistrial as a result of the statement by their counsel, in the presence of the jury, that Freeman may have brought the instant suit to avoid being sued himself by one or more of the other Limited Partners. They contend that their attorney made the statement only in an attempt to explain, at the invitation of plaintiffs’ counsel, the relevance in a particular line of questioning, and conclude that, since the denial of a motion for mistrial is quite properly committed to the broad discretion of the trial judge, there is certainly no reason here for a reversal. (c) Defendants finally argue that, since plaintiffs never objected to the remarks of defendants’ counsel in his closing argument, to the effect that none of the other Limited Partners" }, { "docid": "22917240", "title": "", "text": "propositions, namely: “I. The orders of commitment and the imprisonment thereunder have deprived the plaintiffs in error and appellants [referred to in this opinion as defendants] of their., liberty without due process of law. “II. If, as is agreed, the books and papers described in the subpoena were, the private property of the plaintiffs in error and appellants, then the court’s order requiring their production before the grand jury, and the judgments of contempt based upon the disobedience of that order, violated the right of each plaintiff in error and appellant under the Fifth Amendment not to be compelled in any criminal case to be a witness against himself, and the right of each under the Fourth Amendment to be exempt from unreasonable searches and seizures.” The proposition that the orders of the court of commitment and imprisonment deprived defendants of their liberty without due process of law seems to be based upon the contention that the corporation was in no way obliged to obey the subpoena,. and that, after its dissolution, it was not subject to any subpoena requiring the production of books and papers before 'the grand jury. But we do .not think there is any merit in this objection. If the Government had the legal right to demand the production of the books and papers in question, with a view to the investigation of the alleged offense of Wheeler and Shaw' in the proceedings' before the grand jury, whether the subpoena was drawn in proper form or not or whether the corporation, in view of its dissolution, could have been compelled to comply with its requirements, in the attitude which the case has taken, is immaterial. It is apparent from the facts already recited that Wheeler and Shaw were required by the subpoena duces tecum to bring before the grand jury the books and papers of the corporation which had been dissolved and that they so understood the subpoena; that they were in possession of such books and papers which could be by them produced before the grand jury, and that before the order of commitment was" }, { "docid": "22069341", "title": "", "text": "may presume that the corporation law of the State of Oklahoma since enacted, Oklahoma Statutes, 1921, c. 34, Article Y, sec. 5361, has full application. Shulthis v. McDougal, 225 U. S. 561, 571-572. It provides: “ Unless other persons are appointed by the. court, the directors or managers of the affairs of such corporation at the time of its dissolution are trustees of the.creditors and stockholders or members of the corporation dissolved, and have full power to settle the affairs of the corporation, and to collect- and pay debts and divide among the stockholders the property which remains after the payment of debts and necessary expenses; and for such purposes may maintain or defend actions in their own names by the style of the trustees of such corporation dissolved, naming it; and no action whereto any such corporation is a party shall abate by reason of such dissolution.” Wé have found no Oklahoma case that construes this provision with reference to the question now before the Court. The language of the section would seem to indicate that as there is to be no abatement the Oklahoma Natural Gas Company for litigating purposes is still in being and continues to be a party before this Court. The showing made for the motion is that the Oklahoma Natural Gas Company was by a decree of the district court of Tulsa County, Oklahoma, duly and.-legally dissolved as á corporation. There is nothing to indicate why the company was dissolved. We may assume but we do not know that it was in anticipation of its dissolution by force of law and that the proceeding- was undertaken in order to transfer its assets, its obligations and its liabilities to another corporation which is averred to be a corpora tion of another State, to wit, of Delaware, although _the seal which is attached to the consent of the Oklahoma Natural Gas Corporation by its president and secretary and accompanies the motion, shows that it was incorporated not in Delaware but in Maryland. The motion is signed by counsel for the plaintiff in error, the Oklahoma Natural" }, { "docid": "2151051", "title": "", "text": "(1930); Howard Cook, 5 T.C. 908 (1945).” Among the cases discussed in Hudspeth was the Tax Court’s decision in the instant case, Kinsey v. Commissioner, 58 T.C. 259. The Eighth Circuit analyzed the Tax Court decision as follows: “* * Although the donee had received a majority interest in the corporation, the court distinguished Rushing [52 T.C. 888], by noting that a two-thirds vote of the shareholders would have been required to rescind the earlier authorization to liquidate and thus the donee could not have suspended the dissolution on its own. The taxpayer in Kinsey had argued, like the taxpayer herein, that the date of the gift preceded the time when an enforceable right to the liquidation proceeds accrued (i. e., when the corporation’s board passed the final resolution of dissolution), but the court held: “ ‘With so much having transpired not only before the date of Kinsey’s gift but also before the date of the final resolution to dissolve in September, we cannot consider the September 15 resolution a necessary and important accessory to the April authorization to liquidate. This final resolution was truly a mere formality, required by state law to officially bring the liquidation to an end.’ ” 471 F.2d at 280. The Eighth Circuit continued: “Similarly, the corporation’s filing of the Articles of Dissolution and Liquidation with the state of Missouri [i. e. the filings by MMS, the corporation involved in Hudspeth] were merely ministerial acts necessary to complete the liquidation under state law. We cannot countenance transfers such as presented herein and eviscerate established principles of anticipatory assignment of income by considering remote, hypothetically possible abandonments in the face of unrebutted evidence that the taxpayer intended to and did, in fact, complete the liquidation of his corporation. Through his continued control of the corporation he had foreclosed the possibility of having his intent vitiated. He had made contributions not of stock, but of the proceeds of the liquidation, and he is properly taxable on the gain arising therefrom.” 471 F.2d at 280. The Missouri law and the retention by the donor of a majority of" }, { "docid": "2931650", "title": "", "text": "1026, 94 S.Ct. 453, 38 L.Ed.2d 318 (1973) (attempt to impeach witness by showing merely an accusation of misconduct has been uniformly prohibited). Although the prosecutor in this case had some information (even if incorrect) about a possible indictment, an indictment does not amount to a conviction of a crime, and only the latter is admissible for impeachment purposes. Fed.R.Evid. 609. Proper questions relating to the investigation might have indicated bias by Barnett against FmHA, but the questions here went far beyond mere investigation. Cumulatively, these errors warranted the grant of a new trial upon the trial court’s finding that the errors seriously infected the fairness of the trial. While not entitled to a perfect trial, a defendant is entitled to a fair trial. In the final analysis, the trial judge, not an appellate court reading a cold record, can best weigh the errors against the record as a whole to determine whether those errors in the conduct of the trial justify a new trial. See Arizona v. Washington, 434 U.S. 497, 514, 98 S.Ct. 824, 834, 54 L.Ed.2d 717 (1978) (concluding that trial judge is far more conversant with factors relevant to determination of mistrial because of prosecutorial misconduct than any reviewing court could possibly be). As has often been observed in this Circuit, “it is difficult for an appellate court on a cold record to reproduce accurately for itself the warm vigor and atmosphere of the jury trial.” La Barge Water Well Supply Co. v. United States, 325 F.2d 798, 801 (8th Cir.1963). And while the issue here is close, it is one in which we defer to the ruling of a respected, able trial judge. Accordingly, based on the record before us, we cannot say that the trial judge abused his discretion in granting a new trial. III. CONCLUSION We affirm the grant of a new trial and reject the Government’s appeal. . The Honorable Garnett Thomas Eisele, Chief Judge, United States District Court for the Eastern District of Arkansas. . The Comprehensive Crime Control Act of 1984, Pub.L. No. 98-473, 98 Stat. 1837, amended 18 U.S.C." }, { "docid": "18058844", "title": "", "text": "argue, and the jury is instructed, if it has been given that impression, that it is not proper. “There is nothing wrong per se, that is, of itself, with the execution of this contract. I should instruct them on that as a general instruction. “In other words, you are not to consider that simply because there was an agreement between BCOA and the UMW that that of itself established a violation of the antitrust laws. “I got the impression that he was using those figures to establish his claim that the results proved the basis on which he relied.” South-East’s Counsel: “The circumstances at the time of making these contracts, they have got to be used to prove an antitrust claim.” Appellants’ Counsel: “I submit to the Court that the same words that were used at the bench as being objectionable were used by this counsel to the same •effect, that this jury would have to consider the consequences of this type of bargaining, eliminating from the whole industry certain people and causing a good deal of harm.” The Court: “The jury is instructed that the execution of the contract itself is not per se a violation of law.” Appellants’ Counsel: “Okay.” . Appellants also claim error in the instruction because of remarks made by the District Judge which were incorrect statements of certain dates involving passage of the PWC and “80-eent clause.” In the supplemental instructions the District Judge corrected himself and no prejudice resulted from the error. . The Court made the following examination of Mr. LaViers in ascertaining what took place in the coffee shop: (Reporter’s note:) “The following occurred at the bench in the immediate presence of counsel and the Court, and in the absence and out of the hearing of the jury: “The Court: X want to clarify this other situation before we get into anything else. This is out of the presence or hearing of the jurors, at the bench, in connection with the statement made to the Court by Mr. Schmidt, counsel for the defendant Consolidation Coal Company with reference to two of" }, { "docid": "2151050", "title": "", "text": "As a result, the liquidation would have been irreversible as of April 10, 1964, under the laws of Missouri in effect at the time of this dissolution, and on the basis of the test outlined by the District Court we would have to conclude that the taxpayers’ gifts were anticipatory assignments of the inherent gains and thus taxable to him. “However, a review of the pertinent Federal law in this area convinces us that we must further reject the lower court’s finding that the crucial question in this case is, in effect, a determination of whether it was technically possible under Missouri law for the taxpayer to abandon the impending dissolution between the time of his gift and the time of the actual liquidation distributions. While Jacobs suggests such a test, we cannot concur in its application herein. Instead, we must sustain appellant’s contention that the realities and substance of the events must govern our determination, rather than formalities and remote hypothetical possibilities. Corliss v. Bowers, 281 U.S. 376, 50 S.Ct. 336, 74 L.Ed. 916 (1930); Howard Cook, 5 T.C. 908 (1945).” Among the cases discussed in Hudspeth was the Tax Court’s decision in the instant case, Kinsey v. Commissioner, 58 T.C. 259. The Eighth Circuit analyzed the Tax Court decision as follows: “* * Although the donee had received a majority interest in the corporation, the court distinguished Rushing [52 T.C. 888], by noting that a two-thirds vote of the shareholders would have been required to rescind the earlier authorization to liquidate and thus the donee could not have suspended the dissolution on its own. The taxpayer in Kinsey had argued, like the taxpayer herein, that the date of the gift preceded the time when an enforceable right to the liquidation proceeds accrued (i. e., when the corporation’s board passed the final resolution of dissolution), but the court held: “ ‘With so much having transpired not only before the date of Kinsey’s gift but also before the date of the final resolution to dissolve in September, we cannot consider the September 15 resolution a necessary and important accessory to" }, { "docid": "23161385", "title": "", "text": "an “extreme” sanction, see Sarcinelli, 667 F.2d at 7; indeed, it is the most severe remedy a court can impose short of declaring a mistrial. Thus, the government was punished harshly for any error it may have committed. Moreover, the court specifically instructed the jury to totally disregard Agent Trues-dell’s testimony regarding Ramirez’s possession of the key. We also note that while the evidence regarding the key was certainly damaging to Ramirez’s defense, there was other evidence linking Ramirez and Moría. A police badge similar to the one Moría used was found in Ramirez’s wallet. Ramirez, like Moría, fired upon the law enforcement agents and got into the car in an attempt to flee. In addition, weapons and handcuffs were found in the car driven by Ramirez. Thus, even apart from the evidence of the handcuff key, the jury could properly have inferred that Moría and Ramirez were in league in the attempted “rip off.” “[Sjince there was other substantial evidence to support the jury’s verdict, it cannot be said that the jury prejudicially relied on the evidence” of Ramirez’s possession of a handcuff key. Gonzalez, 661 F.2d at 495. In sum, the trial court was in a much better position to gauge the evidence’s effect on the jury and to fashion an appropriate remedy. “[I]t is difficult for an appellate court on a cold record to reproduce accurately for itself the warm vigor and atmosphere of the jury trial.” La Barge Water Well Supply Co. v. United States, 325 F.2d 798, 801 (8th Cir.1963). The court’s choice of exclusion of the evidence, rather than declaring a mistrial, was not an abuse of discretion. Ramirez’s second group of alleged discovery violations revolves around informer Rios’ polygraph examination. Prior to trial, the government disclosed to defense counsel that Rios had been given a polygraph examination in August of 1983, a short time before the case was presented to the grand jury. The government further disclosed that, in the opinion of the polygraph examiner, Rios was untruthful in answering three questions, all of which relate to Rios’ testimony that he saw Ra" }, { "docid": "6038372", "title": "", "text": "were denied a fair trial by the court by virtue of remarks and actions of the trial court in the presence of the jury. Appellants allege that the trial court erred in not granting their motion for mistrial based on the challenged remarks. In their brief on appeal, appellants contest statements by the trial judge to the effect there should be no repetitious cross-examination, comments by the judge directing counsel to limit certain cross-examination relating to the alibi defense, inquiries by the court of counsel as to the purpose and relevance of certain direct examination of a defense witness, requests by the court to limit certain lines of questioning, allowance by the judge of a “line” or “running” objection to the defense counsel as to certain testimony, and a statement by the trial judge that he hoped to hear certain testimony before the court recessed for Thanksgiving. The defendants do not claim error in any one of these actions and statements of the court, but contend that taken together they could only have the effect of prejudicing the jury against them. A motion for mistrial based on certain acts and statements of the trial judge was made after the evidence was con- eluded, in chambers, and not transcribed by the court reporter. The trial court, giving the defendants the benefit of the doubt, summarized the substance of the motion as an objection to the demeanor of the court in its attempt to pressure the attorneys to shorten the examination and cross-examination and also as an objection to the court’s attempts to bring out certain facts. ■ Counsel then stated that their motion for mistrial was “certainly not as extensive as the court indicated.” They stated they were not badgered and that they were able to present their evidence “pretty well,” but that they felt they had been prejudiced by a statement the court had made regarding cross-examination of a government witness. What the defendants apparently referred to was the judge limiting the cross-examination of an expert chemist who had identified the substance as heroin. After an extensive cross-examination as to" }, { "docid": "14979058", "title": "", "text": "Such an open-ended statement of purpose does not accord with a partnership formed to perform a particular project. Compare St. Lawrence Factory Stores v. Ogdensburg Bridge & Port Auth., 202 A.D.2d 844, 844-45, 609 N.Y.S.2d 370 (3d Dep’t 1994) (partnership to develop factory outlet on parcel of land is for particular undertaking), with Sanley Co. v. Louis, 197 A.D.2d 412, 413, 602 N.Y.S.2d 605 (1st Dep’t 1993) (partnership to acquire, manage and resell residential real estate is terminable at will). Nonetheless, on remand, the jury may take into account any extrinsic evidence that shows the parties did not intend for the joint venture to be terminable at will, see Hooker Chems., 90 A.D.2d at 991-92, 456 N.Y.S.2d 587, including an unexecuted draft agreement, purportedly rejected by Harris, that would have expressly given Scholastic a unilateral right to terminate. 3. Scholastic’s Alleged Dissolution of the Joint Venture If the jury were to find that the term “operations” is predicated upon the joint venture existing in a non-dissolved state and that the joint venture was terminable at will, the jury should then determine whether Scholastic took sufficient action to effect a dissolution. Although the trial court did not explicitly rule whether Scholastic attempted to dissolve the partnership, it did express skepticism regarding Scholastic’s insistence that it had notified Harris of its intent to do so. See Scholastic, 80 F.Supp.2d at 149-50. That court noted there was “no document in the record that expresses such a termination,” and Scholastic’s complaint did not expressly plead the venture had been dissolved. Scholastic, 80 F.Supp.2d at 150. Further, it held that while Scholastic’s filing of the instant lawsuit could, under some circumstances, constitute notice of a desire to dissolve the partnership, it does not “effect a quitclaim” of plaintiffs’ obligations to defendants. Id. It is unclear what the district court meant by stating that a desire to dissolve the partnership would not “effect a quitclaim” of Scholastic’s obligations under the SAR provision. If the court believed that the SARs vested regardless of whether “HEI” continued to “operate,” such holding would be in error, as it would" }, { "docid": "5327388", "title": "", "text": "time the action was commenced, the procedure to be followed in this situation is governed by Fed.R.Civ.P. 25(c) dealing with the substitution of parties due to a transfer of interest. Unison Realty Corp. v. RKO Theatres, Inc., 35 F.R.D. 232 (S.D.N.Y. 1964); 3B Moore’s Federal Practice ¶ 25.08 at 25-321 (2d Ed. 1977); 7A C. Wright & A. Miller, Federal Practice and Procedure § 1958 at 663 (1972). Johnston Feed made no motion under this rule to substitute the assignees as plaintiffs. In the absence of such a motion it is not error to continue the action in the name of the original parties. Mason-Rust v. Laborers’ International Union of North America, Local 42, 435 F.2d 939, 949 (8th Cir. 1970) (Lay, J., concurring); Unison Realty Corp. v. RKO Theatres, Inc., supra, 35 F.R.D. at 233; Liberty Broadcasting System, Inc. v. Albertson, 15 F.R.D. 121, 122 (W.D.N.Y.1953); 3B Moore’s Federal Practice ¶ 25.08 at 25-324 (2d Ed. 1977). Dissolved corporations have been allowed to maintain suits when the dissolution does not abate their authority to do so under state law. Unison Realty Corp. v. RKO Theatres, Inc., supra; see National Council of Young Israel, Inc., v. Feit Co., 347 F.Supp. 1293, 1295 n. 4 (S.D.N.Y.1972); 7A C. Wright & A. Miller, Federal Practice and Procedure § 1958 at 663-64 (1972). The ability of an Iowa corporation to maintain a suit subsequent to its dissolution is recognized by Iowa Code Ann. § 496A. 102 (West 1962), which states that dissolution does not “take away or impair any remedy available to” the corporation if suit is commenced within two years after the date of dissolution and that any action “may be prosecuted or defended by the corporation in its corporate name.” The District Court denied the motion of appellants for a directed verdict, holding that the action could be maintained in the name of Froning’s, Inc. It also ordered, pursuant to agreement by appellee’s counsel, that the successors in interest of the dissolved corporation should be liable for any counterclaim recovery. Appellant was fully protected from the effect of the assignment. We" }, { "docid": "5327389", "title": "", "text": "do so under state law. Unison Realty Corp. v. RKO Theatres, Inc., supra; see National Council of Young Israel, Inc., v. Feit Co., 347 F.Supp. 1293, 1295 n. 4 (S.D.N.Y.1972); 7A C. Wright & A. Miller, Federal Practice and Procedure § 1958 at 663-64 (1972). The ability of an Iowa corporation to maintain a suit subsequent to its dissolution is recognized by Iowa Code Ann. § 496A. 102 (West 1962), which states that dissolution does not “take away or impair any remedy available to” the corporation if suit is commenced within two years after the date of dissolution and that any action “may be prosecuted or defended by the corporation in its corporate name.” The District Court denied the motion of appellants for a directed verdict, holding that the action could be maintained in the name of Froning’s, Inc. It also ordered, pursuant to agreement by appellee’s counsel, that the successors in interest of the dissolved corporation should be liable for any counterclaim recovery. Appellant was fully protected from the effect of the assignment. We find no error or abuse of discretion here. II. Appellant contends that Froning’s, Inc., is precluded from maintaining the action in the corn case because it never ten dered payment as required by Iowa Code Ann. § 554.2511(1) (West 1967), which provides: Unless otherwise agreed tender of payment is a condition to the seller’s duty to tender and complete any delivery. Iowa Code Ann. § 554.1205 (West 1967), however, establishes that a course of dealing between the parties can serve to supplement the terms of an agreement. See J. White & R. Summers, Uniform Commercial Code § 3-3 at 84-88 (1972). Because the price Froning’s, Inc., was required to pay for the corn could not be determined until the corn had been delivered, inspected, and graded, it was under no obligation to tender payment until those events had taken place. This was the standard procedure followed by these parties in grain transactions. Moreover, the evidence indicates that Johnston Feed would not have delivered the corn even if Froning’s had tendered payment and a tender is" }, { "docid": "15338429", "title": "", "text": "raised vigorously by appellant’s trial counsel. The District Judge took testimony on a separate record, which we have inspected, before admitting her testimony. At the time of the communication as to which appellant claims privilege, the woman in question had an existing marriage to another man. Under the law of the domiciliary state, no common-law marriage could be consummated with appellant until after the dissolution of the earlier marriage. Toole v. Gallion, 221 Ga. 494, 144 S.E.2d 360 (1965). The essential elements of a common-law marriage were not established so as to support the invoking of the privilege. At oral argument appellant emphasized claims pertaining to prejudicial comment by the government prosecutor during his jury argument. Since the facts asserted represented possible error, the court ordered a transcript of the closing argument to be furnished at government expense with supplementary briefs on this issue. The transcript and the briefs now reveal the appellant’s memory to have been somewhat more colorful than the facts. It does appear that the prosecutor in his closing argument stated that appellant’s accomplice was in the courtroom during the trial (as apparently had been established before the jury) and that appellant’s counsel could have called him. This, however, was done after appellant’s counsel had argued that the government should have called the accomplice as a witness, but had failed to do so. No objection was made to this response. We find no prejudicial error in the transcript of the government summation. This record indicates that appellant has been represented by vigorous and able counsel at trial and on appeal. We have examined such other issues as are presented and find no merit to them. Affirmed. . The accomplice, one Coogler, was charged as a co-defendant with appellant. However, prior to appellant’s trial, Coogler had pleaded guilty and boon sen-fenced. He was brought from a federal penitentiary to Chattanooga for appellant’s trial on process issued by the prosecution." }, { "docid": "22912668", "title": "", "text": "judge would have lacked the right to insist that the defendant continue to have his case conducted by a lawyer with whom he was dissatisfied. The relation of lawyer and client is almost a-s intimate as that of husband and wife; most states permit a dissolution of the marital relations, and I know of no case in the federal courts holding that dissolution of the other relation is not allowable as a matter of course. 3. My colleagues, however, intimate that, even had that explicit request been made, nevertheless its refusal would not have been reversible error, since to grant such a request would have necessitated a delay for so long a period as to compel a mistrial. But no such consequence would follow. In such a situation, the trial judge might have discretion to rule that, if the defendant desired to continue the trial conducting it on his own behalf, he must do so without delay; the judge, at a minimum, would be justified in ruling that, at most, a delay of a few hours would be permitted. That, however, is not what the trial judge did here. He did not exercise his discretion. What he did was to prevent defendant’s request from being articulated so that it could be ruled on informedly. That, I think, was substantial error. 4. My colleagues further intimate that, even if there was error, it should be ignored “in a case as strong as this against an accused.” Even assuming that the “harmless error” rule means that the substantiality of an error depends upon whether the judges of the appellate court, who have not heard or seen the witnesses, believe that, if they had constituted the jury, they would have found the defendant guilty — a position in which I do not concur —that rule has no application to such a case as this. It is probably true that there are no absolute legal rights, none which must not yield in some circumstances. But there are some legal rights which, under our Constitution, approach an absolute; at least they so far approximate it" }, { "docid": "10336868", "title": "", "text": "such final disposition as might then appear appropriate. The first of several points raised on appeal relates to three instances of alleged misconduct on the part of the trial judge in conducting the trial. Appellant had obtained a duplicate registration certificate, commonly referred to as a draft card, after having intentionally burned his original certificate. The duplicate certificate was introduced into evidence by counsel for the appellant who prefaced the certificate’s admission with the remark that: “And also, making a record that we are taking it away from Mr. Cooper so he is not subject to any prosecution.” The trial judge responded: “That’s ridiculous. We will strike that comment from the record.” Defense counsel promptly moved for a mistrial which was denied. Thereafter, while in the process of instructing the jury, the trial judge indicated that the jury was to disregard any statements from the bench of a derogatory nature. A second incident of alleged judicial misconduct occurred during the cross-examination of one of the Government witnesses. The court questioned the relevancy of the particular line of questioning being pursued, whereupon defense counsel expressed a desire to discuss the matter out of the presence of the jury. The trial judge then indicated that the matter would be pursued in chambers and in doing so apparently made certain physical gestures which, it is contended, conveyed the impression to the jury that he intended to punish defense counsel in some manner. The final occurrence of misconduct relates to the manner in which the trial judge admonished a defense witness to cease interfering with the court’s intended conduct of the proceedings. We find no merit in the contention that the conduct of the trial judge was sufficiently prejudicial to deny the accused a fair and impartial trial. While indications in the presence of the jury that statements of the defense counsel are ridiculous, are not to be encouraged, such conduct certainly does not constitute reversible error. Petersen v. United States, 268 F.2d 87, 88 (10th Cir.1959). Indeed, that incident and the others discussed above, were no more than displays indicative of a firm" }, { "docid": "22243336", "title": "", "text": "of corporations is or may be effected by expirations of their charters, by failure of any essential part of the corporate organizations that cannot be restored, by dissolution and surrender of their franchises with the consent of the State, by legislative enactment within constitutional authority, by forfeiture of their franchises and judgment of dissolution declared in regular .judicial proceedings, or by other lawful means. No such dissolution is alleged in the bill. The averments that said corporations paid all other liabilities, and thereafter distributed their remaining assets amongst their respective stockholders, and have since made no use of their franchises, and have no agent.or officer upon whom process can be served, and no assets out of which any judgment against them could be satisfied, fall far short of a dissolution such as would prevent.a. suit against the.corporations or their trustees as provided .by the laws of Wyoming, to establish the validity and amount of the appellants’ claim for damages. (Secs. 506, 515.) The cases cited to the point that, when the corporation is dissolved, the necessity for making it a party is dispensed with, need not, therefore, be reviewed. They are not applicable to the present case. It does not help the matter that complainant could not get the-vendor corporations before the Circuit Court for the Northern District of Illinois. That fact in no way affects the question of their being necessary parties, without whose presence no décree could be rendered against the appellees. We do not deem it necessary to refer to the Wyoming statutes further than to say we think they provide the means by which the vendor corporations could there have been sued. We are also clearly of opinion that the court below was correct in sustaining the demurrer to the bill upon the other ground assigned, that the complainant had not previously reduced its demand against the vendor corporations to judgment. That claim was purely legal, involving a trial at law before a jury. Until reduced to judgment at law, it could not be made the basis of relief in equity. This is. well settled by" }, { "docid": "22912667", "title": "", "text": "they were made by skilled counsel, especially in the absence of an opportunity on the defendant’s part to explain his intentions. Disregarding wholly that lack of opportunity, my colleagues make the surprising remark that “under these circumstances we think it proper at least to require that the defendant must show his hand,” and proceed to hold that defendant, not having advised the trial judge that he desired to proceed without counsel, must be deemed, because of his brief interrupted remarks, to have intended to say that he wanted new counsel. To my mind, in the circumstances, the defendant is entitled now to assert the other interpretation of his request, i. e., that, for the balance of the trial, he be allowed to represent himself. Surely, if he had made such an explicit request, a refusal would have been reversible error. No doubt, it would have been proper — perhaps it would have been necessary — for the judge to point out that abandonment of counsel might jeopardize the defendant. After such a warning, however, the judge would have lacked the right to insist that the defendant continue to have his case conducted by a lawyer with whom he was dissatisfied. The relation of lawyer and client is almost a-s intimate as that of husband and wife; most states permit a dissolution of the marital relations, and I know of no case in the federal courts holding that dissolution of the other relation is not allowable as a matter of course. 3. My colleagues, however, intimate that, even had that explicit request been made, nevertheless its refusal would not have been reversible error, since to grant such a request would have necessitated a delay for so long a period as to compel a mistrial. But no such consequence would follow. In such a situation, the trial judge might have discretion to rule that, if the defendant desired to continue the trial conducting it on his own behalf, he must do so without delay; the judge, at a minimum, would be justified in ruling that, at most, a delay of a few" }, { "docid": "21545602", "title": "", "text": "counsel adversely influenced the jury and requires a new trial. Specifically, Chevron objects to a remark by plaintiffs’ counsel that Chevron violated the law and took “the law into their own hands,” and references to a “deadly” crew-boat and the plaintiffs’ suffering and injuries. The record demonstrates, however, that the judge ruled on Chevron’s contemporaneous objections, noting when counsels’ remarks were improper. The district judge later denied Chevron’s motion for a mistrial due to inflammatory remarks and “[t]he only question for us is whether the judge should have ordered a new trial because the damage done by [these] inflammatory [comments] was irreparable.” Caldarera v. Eastern Airlines, Inc., 705 F.2d 778, 781 (5th Cir.1983). The denial of a motion for new trial “is reversible only for abuse of discretion.” Id. Because the judge instructed the jury that opening statements and closing arguments were not evidence, fairly ruled on all parties’ objections, and because “[a] trial judge is generally better able than an appellate court to evaluate the prejudice flowing from improper jury arguments,” Id., we conclude that the district judge did not abuse his discretion in denying Chevron's motion for a new trial. Chevron also complains that the trial judge permitted the plaintiffs’ counsel to ask improper hypothetical questions that were not based upon facts in the record. We also find this argument lacking in merit. Because the facts assumed by the experts had at least an arguable basis in the record, the district court did not err in permitting the questions. Chevron also argues that it was reversible error for the trial judge to dismiss Freddie Collette, an adverse witness, before Chevron could cross-examine him. Chevron’s counsel understood that the court ordered the trial to resume after the noon recess at 1:30; in fact, the trial was scheduled to resume at 1:15. When counsel did not appear at the appointed hour, the court dismissed the witness. Later, the judge permitted Chevron to recall Collette for cross-examination, but Chevron was unable to subpoena the witness. District courts “are entitled to manage their cases with the aim of conducting litigation efficiently.” Carson" } ]

[ { "docid": "15987582", "title": "", "text": "be dismissed as requested. In response, debtor requested in a letter dated October 6, 1988, addressed to the court and copied to WIF, that the court grant it leave to prepare and submit a supplemental memorandum to address the arguments raised by WIF in its two letters. WIF concededly raised no objection to this request. The court apparently orally granted debtor’s request, requiring a response on or before October 26, 1988. WIF claims that it was not apprised of the court’s action in this respect until November 18, 1988. Debtor filed its supplemen tal memorandum with the court on October 26, 1988, and forwarded a copy of its response to WIF. On November 14, 1988, WIF notified the court that it considered the automatic stay to have terminated by operation of law because the court had failed to render any decision or to enter an order with respect to that stay within 30 days of the hearing as 11 U.S.C.A. § 362(e) and Bankruptcy Rule 4001(a)(2) require. The judge’s law clerk responded by letter dated November 18, 1988, stating that, because of WIF’s supplemental submissions, the court had granted debtor leave to file a response by October 26, 1988. The law clerk further stated that, by virtue of WIF’s own actions, WIF had “effectively carried the hearing date until October 26, 1988, since the Court was without final submissions from all parties upon which to render a decision.” On November 23, 1988, the court denied WIF’s motion for modification of the automatic stay. The court specifically stated that “having considered the moving papers, the testimony at the preliminary hearing commenced on September 27, 1988, the submissions dated September 28, 1988 and October 3, 1988 from the movant and October 26, 1988 from the debtor,” it ordered that “the Automatic Stay provisions set forth in 11 U.S.C. Section 362(a) are continued in effect until further Order of this Court.” On November 29, 1988, the court issued a memorandum in support of the order which addressed the merits of the denial of the stay. The district court, on appeal by WIF, affirmed" } ]

[ { "docid": "10182518", "title": "", "text": "proceeding and the protagonist of both of the Objections, was named interim trustee (hereinafter referred to as “the Trustee”). The present flurry of activity is the tail-end of the case. We set this process in motion by an Order of April 21, 1988, in which we not only denied a motion of a landlord of the Debtor for administrative expenses, but also directed that the Trustee file, on or before June 1, 1988, any adversary proceedings or additional Objections to proofs of claims necessary prior to the closing of the case. Among the Objections' ultimately and somewhat belatedly filed, on June 29, 1988, and July 1, 1988, respectively, were attacks upon an administrative claim in the amount of $35,180.00 filed by Frankford (No. 30) and two secured claims filed by Stucki (Nos. 26 and 38), the last, superseding one of which was in the amount of $2,000,635.00. The adversary proceeding was filed against Frankford on July 5, 1988. Therein, the Trustee sought to recover the amount by which the Debtor’s stocks held as collateral by Frankford depreciated in value between the date of the bankruptcy filing on March 16, 1984, and April 19, 1984, when Frankford liquidated them. Frankford joined Stucki as a third-party defendant, contending that it would have liquidated the stocks earlier if Stucki had not provided the only opposition to Frank-ford’s motion seeking relief from the automatic stay to effect the disposition of the stocks. These matters ultimately became listed on our calendar on the same date, and were continued several times until October 25, 1988, when we entered an Order that a continuance until December 6, 1988, would be the last. The consolidated trial began and consumed several hours on December 6, 1988. However, we were unable to complete it, and were obliged to schedule it for completion on January 5, 1989. At its completion, Frankford initially indicated a desire to order a transcript, but thereafter withdrew this request, allowing us to enter an Order of January 30, 1989, requiring that all three parties file Opening Briefs by February 20, 1989, and Reply Briefs by February" }, { "docid": "13935198", "title": "", "text": "be considered when we have given plenary reconsideration of a final application of the applicant for compensation at, hopefully, the time of successful reorganization of this worthy Debtor. Thus, there is no great cause for resubmission of this Application at this juncture. We are accordingly entering the Order described in the first paragraph of this Memorandum. ORDER AUTHORIZING INTERIM PAYMENT OF LEGAL FEES AND REIMBURSEMENT OF EXPENSES AND NOW, this 26th day of June, 1989, upon application of Drinker Biddle & Reath for interim payment for fees, it is hereby ORDERED, that the application of Drinker Biddle & Reath for interim payment of legal fees and reimbursement of expenses be and it is hereby is GRANTED in the amount of $340,637.75 for legal fees and $9,634.11 for reimbursement of expenses, and such sums shall be paid by the debtor on an interim basis. SUPPLEMENTAL MEMORANDUM On July 6, 1989, Drinker Biddle and Reath (hereinafter “the Applicant”), counsel for the Debtor in this Chapter 11 case, filed a motion pursuant to Bankruptcy Rule (hereinafter “B.Rule”) 9023 and Federal Rule of Civil Procedure 59(e) requesting that (1) we amend our Order of June 26, 1989, granting it interim compensation, pursuant to 11 U.S.C. § 331, to include compensation for pre-petition services, which we had expressly excluded from the sum awarded in that Order; and (2), if we were not inclined to grant this relief, that we permit the Applicant to take an interlocutory appeal of that issue only to the district court. It will be recalled that, before we entered our Order of June 26, 1989, we advised the Applicant of our reluctance to approve its very large and therefore unique request to be compensated in an amount in excess of $70,000 from the estate for pre-petition services. The Applicant submitted a letter in support of its request dated June 16, 1989, and we carefully reviewed same before entry of our Order of June 26, 1989. After a hearing on the B.Rule 9023 motion on August 9, 1989, the Applicant was granted permission to make a further submission. We allowed it to" }, { "docid": "13944122", "title": "", "text": "January 9, 1989, they had neither court approval nor an agreement between them to sustain their relationship. It cannot be forgotten that CC here seeks nunc pro tunc imposition of a lien in its favor pursuant to § 364(d). Since financing pursuant to § 364(d) contemplates the priming of other liens, a request under § 364(d) must be aeted'upon more cautiously than motions under the other provisions of § 364. See generally In re Reading Tube Industries, Inc., 72 B.R. 329, 332 (Bankr.E.D.Pa.1987); 2 COLLIER, supra, ÍÍ 364.05, at 364-12; and R. McCullough, Analysis of Bankruptcy Code Section 364(d): When Will a Court Allow a Trustee to Obtain Post-Petition Financing by Granting a Superpriority Lien, 93 COMMERCIAL L.J. 186, 205 (1988). CC has not cited any case where financing pursuant to § 364(d) was allowed nunc pro tunc. It must also be recalled that adequate notice to all interested parties must precede the entry of any § 364 order. See In re Garland Corp., 6 B.R. 456, 458 n. 2 (1st Cir. BAP 1980); and In re Monach Circuit Industries, Inc., 41 B.R. 859 (Bankr.E.D.Pa.1984) (this court, per GOLD-HABER, CH. J., vacates an order entered under § 364(c) ex parte). Here, notice was given and all active interested parties had no objection to the entry of a Stipulation contemplating a Services Agreement expressly effective for only 60 days. We decline to infer consent to an extension of this period from the mere failure of any interested party to act to prevent the relationship of the Debtor and CC from continuing thereafter. Certainly, no act of this court, implicit or otherwise, extended the running of any Services Agreement beyond sixty (60) days. Furthermore, at the close of the hearing on June 21, 1989, we expressed skepticism as to whether approval of financing nunc pro tunc was appropriate where even the immediate parties to the financing “agreement,” i.e., the Debtor and CC, had never executed the contemplated Services Agreement inter se, let alone had any extension to same beyond the sixty-day limitation set forth in the Stipulation approved by this court after" }, { "docid": "13944104", "title": "", "text": "OPINION DAVID A. SCHOLL, Bankruptcy Judge. A. INTRODUCTION. The instant motion of Communicraft, Inc. (hereinafter “CC”) to lift the automatic stay to allow it to enforce its purported security interest in funds held by the Trustee and to sequester funds held by the Trustee which are allegedly its cash collateral ultimately turns upon whether this court should grant CC a super-priority security interest priming that of all other secured parties, pursuant to 11 U.S.C. § 364(d), nunc pro tunc. We hold that the § 364(d) nunc pro tunc relief sought is confined to extraordinary circumstances where there is at least a clear agreement between the debtor and the lender upon which both have acted. Meanwhile, here we find that the credit agreement between the Debtor and CC, at least at all times subsequent to January 9, 1989, did not have the requisite precision of terms and intended formality to constitute an enforceable contract even between these parties. Further finding that CC has been paid sufficient funds to satisfy its security interest through January 9, 1989, we are constrained to hold that CC did not have any security interest after that date which could support the relief sought. We also reject CC’s contention that the automatic stay expired pursuant to the terms of 11 U.S.C. § 362(e) and Bankruptcy Rule (hereinafter “B. Rule”) 4001(a)(2), because CC’s ultimate agreement that the final hearing be continued until June 21, 1989, and briefed thereafter, waived the time periods set forth therein, at least through the date of this decision. Therefore; we deny CC’s motion. B. PROCEDURAL HISTORY/FACTS. This case was commenced by the filing of an involuntary Chapter 7 petition against the Debtor on September 27, 1988. On October 13, 1988, the Debtor filed a voluntary Chapter 11 proceeding, at Bankr. No. 88-13595F. That ease was consolidated before this court with this case, and this case thereafter proceeded as a Chapter 11 matter in which an order for relief was entered by agreement. As of September 27, 1988, the Debtor was no longer doing business and had lost its line of credit with Fidelity" }, { "docid": "13944116", "title": "", "text": "Wedgewood, supra, 878 F.2d at 699 (court holds that stay terminated no earlier than 30 days after conclusion of the final hearing even upon the failure of the bankruptcy court to expressly extend the stay). We therefore conclude that the Wedgewood decision does not further CC’s cause, and the stay has not expired by effect of § 362(e) and B. Rule 4001(a)(2). D. THE RECORD DOES NOT JUSTIFY REJECTION OF COMER’S REPORT THAT $292,383, AND NOT SOME LESSER AMOUNT, OF COSTS WERE INCURRED BY CC AFTER JANUARY 10, 1989. Secondly, CC urges us to reject the express and unequivocal statement in Comer’s report, that the costs incurred by CC after January 10, 1989, amounted to $292,-383, and find that only about $100,000 in expenses were incurred by it after January 10, 1989. In our Order of June 23, 1989, we expressly urged CC to clarify a contention made by it at the close of the June 21, 1989, hearing that it was entitled to relief even if it had no security interest after January 10, 1989. However, the only support for this conclusion cited in these submissions is reference to testimony of Ross Feehrer, CC’s President, on cross-examination by the Trustee’s counsel, in which Feehrer stated that “approximately $100,-000 .. .primarily in labor” were the only costs that he believed were accrued by CC after January 10, 1989. However, Feehrer admitted that he had not gone back over his checks to determine precisely what he believed were post-January 10, 1989, expenses. The impartiality of Comer and the accuracy of his report has not been questioned. We thus choose to accept the figures in the report, obviously competently prepared from ample supporting data, over vague statements by Feehrer that he believed that the report was erroneous or misleading regarding the segregation of post-January 10, 1989 expenditures, based on mere suppositions. CC did not question Comer, during his testimony, about the accuracy of the report’s figures. We therefore prefer them to the biased, unsupported statements of Feehrer. E. CC IS NOT ENTITLED TO APPROVAL OF A SECURITY INTEREST AS TO COSTS INCURRED" }, { "docid": "13944129", "title": "", "text": "a valid security interest under § 364(d) or otherwise against the proceeds received by the Debtor or the Trustee subsequent to January 10, 1989, see In re Crouse Group, Inc., 71 B.R. 544, 549 (Bankr.E.D.Pa.1987); and In re Grant Broadcasting of Philadelphia, Inc., 71 B.R. 376, 384-85 (Bankr.E.D. Pa.), aff'd, 75 B.R. 819, 822-23 (E.D.Pa. 1987), it cannot prevail in this motion, which is dependent upon such a finding. Therefore, we must proceed to enter an Order denying its motion. . $756,584.85 (CC’s payment and expense total) less $292,383 (items incurred after January 10, 1989) equals $464,201.75. Under the Debtor's figures, CC’s total secured claim would be only $376,837.10. . We take issue with the statement in CC’s Sup- ■ plemental Memorandum that on May 17, 1989, the court ignored CC’s arguments under § 362(e) \"and expressly stated that it would not render a decision within the time required by the Code and Rules.” Had CC persisted in urging that the hearing be completed on May 17, 1989, we would have done so. Under B. Rule 4001(a)(2), we would have had until June 16, 1989, to render a decision on the motion. What we stated at the hearing was that it would have taken until on or about June 16, 1989, to render a decision, since the court was unaware that the matter was contested prior to May 17, 1989, and would have probably required post-hearing briefing to orient it to the issues in contest. However, we clearly could have been prepared to render a decision by June 16, 1989, and CC could have urged this court to terminate the stay as of June 16, 1989, if we had not done so. However, by ultimately agreeing to continue the final hearing until June 21, 1989, CC set back the running of the time pursuant to B. Rule 4001(a)(2) to at least July 21, 1989." }, { "docid": "18887278", "title": "", "text": "a trial on a planned adversary proceeding to be filed by the Debtors attacking the April 19, 1989, sheriff’s sale of the Home on August 10, 1989, also the date of a hearing on the Debtor’s motion to reconsider the Order of July 6, 1989, on Neumann’s motion. The Complaint was to be filed and served on or before July 31, 1989. At the August 10, 1989, hearing, it became apparent that the Debtors’ counsel had not filed and served the anticipated Complaint by July 31, 1989, and was not prepared for trial, pursuant to our directives. After a lengthy colloquy with counsel, we entered an Order and Pre-Trial Order of August 14, 1989, in which we provided the Debtors with a requested extended period to file an Amended Complaint, scheduling the trial on November 7, 1989. However, due to their failure to comply with our Order of July 27, 1989, and in consideration for giving the Debtors such a long time-period to prepare their Amended Complaint, we granted AAA’s motion for relief from the stay and reaffirmed Judge Fox’s Order granting Neu-mann relief on the merits. In response to the Debtors’ Amended Complaint, Neumann filed an Answer contending, inter alia, that the Standing Chapter 13 Trustee, Edward Sparkman, Esquire (“the Trustee”), was an indispensable party. AAA and the “line banks” of the loan from AAA, Defendants FIRST PENNSYLVANIA BANK, N.A., MERIDIAN BANK, FIDELITY BANK, N.A., and HAMILTON BANK, not only filed an Answer, but demanded a jury trial. Also, the Debtors moved for reconsideration of several aspects of the August 7, 1989, Order. These matters led to a hearing of September 21, 1989, in a colloquy at which the Trustee participated and expressed his intention to not become involved in this proceeding but to nevertheless be bound by the disposition achieved by the Debtors; the Debtors’ motion was denied; and the parties were accorded until October 5, 1989, to brief the jury trial issue. When no briefs on this issue were in fact submitted, we ultimately entered an Order of October 23, 1989, striking AAA’s jury demand on the" }, { "docid": "12334058", "title": "", "text": "19, 1989. (3) From May 22 through June 29, 1989, third-party plaintiffs may conduct discovery relative to any dispositive motions which are filed. (4) The responses to the dispositive motions shall be filed by July 14, 1989. (5) Replies, if any, shall be filed by July 21, 1989., (6) A hearing on any dispositive motions filed by Third-parties in accordance with this schedule will be held August 25, 1989 at 8:00 a.m. J. SITE VISIT The parties shall make appropriate arrangements for the Court and the Special Master to visit the Hardage disposal site on Monday, March 27, 1989. K. SETTLEMENT CONFERENCE A two-day settlement conference will be conducted April 26-27, 1989. L. FINAL PRETRIAL ORDER, PRETRIAL STATUS CONFERENCE, OPENING STATEMENTS AND TRIAL The trial is set on the Court’s November 27, 1989 trial docket. The Final Pretrial Order shall be approved by all parties and submitted to the Court by November 17, 1989. A final pretrial conference will be held November 24, 1989 at 8:00 a.m. All proposed findings of fact, conclusions of law and trial briefs shall be filed by November 24, 1989. The parties may, if they desire, make opening statements on November 24, 1989. Given the submission of trial briefs and proposed findings, opening statements will be limited to thirty (30) minutes per side. M. TOTAL AMOUNT OF TIME TO BE DEVOTED TO TRIAL This case had been the subject of various and shifting trial estimates by the parties. On February 1, 1988, in the status report signed by counsel for all parties, and submitted to the Court, the parties made the following representation to the Court: VII. ESTIMATED TRIAL TIME: Phase II Remedy: 30 trial days Status Report filed February 1, 1988. In the briefs submitted to the Court of Appeals on the now-aborted petition for interlocutory appeal the defendants stated: The Government agreed in principle with the Defendants in late November of [1988] to propose a scheduling order that included a 52-day trial for the entire “remedy phase” of the case. Opposition of Generator and Transporter Defendants-Respondents to Application of the United States to" }, { "docid": "18887279", "title": "", "text": "stay and reaffirmed Judge Fox’s Order granting Neu-mann relief on the merits. In response to the Debtors’ Amended Complaint, Neumann filed an Answer contending, inter alia, that the Standing Chapter 13 Trustee, Edward Sparkman, Esquire (“the Trustee”), was an indispensable party. AAA and the “line banks” of the loan from AAA, Defendants FIRST PENNSYLVANIA BANK, N.A., MERIDIAN BANK, FIDELITY BANK, N.A., and HAMILTON BANK, not only filed an Answer, but demanded a jury trial. Also, the Debtors moved for reconsideration of several aspects of the August 7, 1989, Order. These matters led to a hearing of September 21, 1989, in a colloquy at which the Trustee participated and expressed his intention to not become involved in this proceeding but to nevertheless be bound by the disposition achieved by the Debtors; the Debtors’ motion was denied; and the parties were accorded until October 5, 1989, to brief the jury trial issue. When no briefs on this issue were in fact submitted, we ultimately entered an Order of October 23, 1989, striking AAA’s jury demand on the ground that the primary relief sought by the Debtors was equitable in nature and that the second “prong” of the three-prong test set forth in Granfinanciera v. Nordberg, — U.S. —, 109 S.Ct. 2782, 2793-94, 106 L.Ed.2d 26 (1989), see In re Light Foundry Associates, Light Foundry Associates v. Alter, 112 B.R. 134, 136-137 (Bankr.E.D.Pa.1990), was not satisfied. We also reiterated that the parties should strictly conform to our Order of August 14, 1989, requiring, inter alia, exchanges of exhibits on or before October 27, 1989, and completion of a Stipulation of undisputed facts and pre-trial Briefs on or before October 31, 1989. Despite these admonitions, on November 6, 1989, the Debtors’ counsel advised that he had not complied with our Order and sought eleventh-hour dispensations. After a conference call in which the Defendants’ various counsel unanimously expressed a willingness to proceed the next day despite the lack of submissions from the Debtors’ counsel, we went forward. We did ultimately impose a $100 sanction upon the Debtors’ counsel in an Order of November 21, 1989," }, { "docid": "13944107", "title": "", "text": "terms of the Stipulation, the parties never agreed on wording and no Services Agreement was ever executed. The parties nevertheless continued such operations through February 10, 1989, thirty-one (31) days after the 60-day period contemplated in the Stipulation. On that date, a dispute arose and the Debtor ordered CC off the premises. In response, CC obtained counsel for apparently the first time in these proceedings and filed the instant motion on February 16, 1989. Expedited consideration was granted, and a hearing was commenced on March 1, 1989. In the course of that hearing, the Bank made it known that it intended to foreclose upon its interest against the Debtor, which would terminate its operations. The Committee then proposed that the contracts on which work was in progress be salvaged by appointing a Trustee to oversee the Debt- or’s operations and retain all proceeds earned by it. All parties ultimately agreed to this suggestion, with the added proviso that the Debtor’s accountant, Steven J. Comer (hereinafter “Comer”), in whom all parties expressed confidence, would promptly prepare a report which would be the basis of a determination 'of the rights of CC in the sums to be held by the Trustee. This motion was therefore continued until March 29, 1989, at which time it was believed that information necessary to make this determination would be available. Although Comer completed his report in timely fashion, there was apparently a hope that the issue of the amount to which CC was entitled could be resolved amicably when all of the Debtor’s work was completed. Therefore, CC agreed to continue the hearing on this motion until April 19, 1989, and again until May 3, 1989. On the latter date, in partial response to the court’s increasing reluctance to perpetuate continuances, counsel for all interested parties, including CC, proposed our establishing a claims bar date on June 16, 1989, shortly after all of the Debtor’s contracts were completed. It was contemplated that our so doing would allow the Trustee to have before him the entire universe of claims in determining the rights of all parties, including" }, { "docid": "13944113", "title": "", "text": "This figure which CC has been paid is more than this figure. Therefore, the Trustee declined turning over any additional sums to CC and contended that CC is entitled to only a pro rata distribution with other administrative claimants as to its post-January 10, 1989, advances. The principal contention of CC is that we should grant it a security interest pursuant to § 364(d) as to those advances made after January 10,1989 nunc pro tunc, under the principles enunciated in, e.g., In re American Cooler Co., 125 F.2d 496, 497 (2d Cir. 1942). See also, e.g., 2 COLLIER ON BANKRUPTCY, ¶ 364.03, at 364-8 to 364-9 (15th ed.1989). However, before analyzing that contention, we briefly note and dispose of two other arguments made by CC. C. CC IS CLEARLY NOT ENTITLED TO RELIEF UNDER THE TERMS OF 11 U.S.C. § 362(e) AND B. RULE 4001(a)(2). First, in its Supplemental Memorandum, CC argues that, at some unspecified date presumably prior to the present, the automatic stay terminated as to it by operation of law pursuant to 11 U.S.C. § 362(e), on the authority of Wedgewood, supra. We cannot agree. The Court of Appeals, in Wedgewood, states that the provisions of § 362(e) and B. Rule 4001(a)(2) may be waived by the movant’s taking “some action which is inherently inconsistent with adherence to the time constraints” of § 362(e) and B. Rule 4001(a)(2), including, as examples, instances where the movant agreed to a continuance of the final hearing or delayed the court’s disposition by requesting an opportunity to make post-hearing submissions. Wedgewood, supra, 878 F.2d at 701-02. We have set forth the procedural history of this case and this motion in some detail to indicate that CC clearly and unequivocally agreed to continue the final hearing until May 17, 1989. Moreover, on that date, CC ultimately agreed to continue the hearing once again until June 21, 1989, after the claims bar date had passed and the Debtor’s work in progress was entirely completed. Considerable additional testimony was adduced on June 21, 1989. As a result, the final hearing was not completed, by" }, { "docid": "13944115", "title": "", "text": "ultimate agreement of CC, until June 21, 1989. Therefore, by the terms of B. Rule 4001(a)(2), the stay could not terminate, by effect of § 362(e), until at least July 21, 1989. However, subsequent to the June 21, 1989, hearing, CC requested an additional period to make supplemental submissions to the court. Twenty-six (26) pages of supplemental materials arrived on July 14, 1989. Compare Wedgewood, supra, 878 F.2d at 698-702 (movant submitted only copies of exhibits and a three-page letter citing two cases and no proposed findings of fact after the final hearing). In light of Wedgewood, we expressly extended the stay until August 14,1989, by our Order of June 23, 1989. That Order was entered solely to accommodate CC’s request to make additional submissions and was not appealed by it. We hold that the extension of the stay granted in that Order is valid. In any event, the instant decision has been rendered prior to July 21, 1989, foreclosing the potential of termination of the stay under the terms- of B. Rule 4001(a)(2). Compare Wedgewood, supra, 878 F.2d at 699 (court holds that stay terminated no earlier than 30 days after conclusion of the final hearing even upon the failure of the bankruptcy court to expressly extend the stay). We therefore conclude that the Wedgewood decision does not further CC’s cause, and the stay has not expired by effect of § 362(e) and B. Rule 4001(a)(2). D. THE RECORD DOES NOT JUSTIFY REJECTION OF COMER’S REPORT THAT $292,383, AND NOT SOME LESSER AMOUNT, OF COSTS WERE INCURRED BY CC AFTER JANUARY 10, 1989. Secondly, CC urges us to reject the express and unequivocal statement in Comer’s report, that the costs incurred by CC after January 10, 1989, amounted to $292,-383, and find that only about $100,000 in expenses were incurred by it after January 10, 1989. In our Order of June 23, 1989, we expressly urged CC to clarify a contention made by it at the close of the June 21, 1989, hearing that it was entitled to relief even if it had no security interest after January 10," }, { "docid": "13944111", "title": "", "text": "contact CC’s counsel and give her the option of our rendering a brief decision on or before the court departed on June 26, 1989, for an extended vacation, or giving CC an opportunity to submit a supplemental Brief during our vacation, in which case we would extend the duration of the stay until thirty (30) days after this submission. CC’s counsel opted to make an additional submission to us, and we thereupon entered an Order of June 23, 1989, allowing any interested party to file supplementary submissions on or before July 14, 1989, and directing that the stay remain in effect until August 14, 1989. The Trustee filed a one-page supplemental Memorandum of Law, in which the Debtor joined. CC filed a seven-page Memorandum of Law and 17 pages of detailed Proposed Findings of Fact and Conclusions of Law with page references to Transcripts of the hearing dates, which CC had prepared and filed. These submissions, filed on July 14, 1989, though not solicited in such detail, were helpful to the court in resolving this matter expeditiously. The Trustee’s position, echoed by the Debtor and the Committee (and the Bank), applies Comer’s apparently mutually-acceptable report to its contention that CC’s security interest under § 364(d) extended only to expenses incurred through January 10, 1989. The report states that, according to CC, it paid $274,710.99 and justifiably expended $481,873.76, and thus incurred total costs of $756,584.85 over the entire duration of its relationship with the Debtor. Without resolving the dispute between them, the report further states that the Debtor contended that CC’s payments were only $237,646.44 and its justifiable expenditures only $431,583.76, or a total amount of costs incurred of $669,220.20. The statement in the report that CC had been paid $469,730.01, plus a payment of $40,000 by the Trustee, thus establishing total payments to CC of $509,730.01, is undisputed. The report then lists “Items Incurred After January 10, 1989” by CC at a total of $292,383. The Trustee is holding approximately $285,000. The Trustee contends that CC had a super-priority interest under § 364(d) as to no more than $464,201.75." }, { "docid": "13944114", "title": "", "text": "11 U.S.C. § 362(e), on the authority of Wedgewood, supra. We cannot agree. The Court of Appeals, in Wedgewood, states that the provisions of § 362(e) and B. Rule 4001(a)(2) may be waived by the movant’s taking “some action which is inherently inconsistent with adherence to the time constraints” of § 362(e) and B. Rule 4001(a)(2), including, as examples, instances where the movant agreed to a continuance of the final hearing or delayed the court’s disposition by requesting an opportunity to make post-hearing submissions. Wedgewood, supra, 878 F.2d at 701-02. We have set forth the procedural history of this case and this motion in some detail to indicate that CC clearly and unequivocally agreed to continue the final hearing until May 17, 1989. Moreover, on that date, CC ultimately agreed to continue the hearing once again until June 21, 1989, after the claims bar date had passed and the Debtor’s work in progress was entirely completed. Considerable additional testimony was adduced on June 21, 1989. As a result, the final hearing was not completed, by ultimate agreement of CC, until June 21, 1989. Therefore, by the terms of B. Rule 4001(a)(2), the stay could not terminate, by effect of § 362(e), until at least July 21, 1989. However, subsequent to the June 21, 1989, hearing, CC requested an additional period to make supplemental submissions to the court. Twenty-six (26) pages of supplemental materials arrived on July 14, 1989. Compare Wedgewood, supra, 878 F.2d at 698-702 (movant submitted only copies of exhibits and a three-page letter citing two cases and no proposed findings of fact after the final hearing). In light of Wedgewood, we expressly extended the stay until August 14,1989, by our Order of June 23, 1989. That Order was entered solely to accommodate CC’s request to make additional submissions and was not appealed by it. We hold that the extension of the stay granted in that Order is valid. In any event, the instant decision has been rendered prior to July 21, 1989, foreclosing the potential of termination of the stay under the terms- of B. Rule 4001(a)(2). Compare" }, { "docid": "13944109", "title": "", "text": "CC, to the proceeds in his hands. It was believed that allowing this procedure to unfold could render the matters in dispute moot. As a result, the hearing was continued again until May 17, 1989. On the latter date, it readily became apparent that the period of consensus which had reigned over the past two months was over. CC took the position that its rights as a secured creditor under 11 U.S.C. § 364(d) extended to all cost incurred by it through the date that it was forced off the job on February 10, 1989. All of the other parties, including the Trustee, took the position that CC’s rights under § 364(d) extended no farther than to costs and expenditures advanced by CC through January 10, 1989. Thus, the hearing on this motion, which had begun on March 1, 1989, was resumed on May 17, 1989. After considerable testimony was adduced, we questioned the sudden desire of CC to compel us to render a decision as to its rights prior to the claims bar date and indicated our likely inability to decide the matter without further briefing and a delay until about the time of the bar date in any event. After an extended colloquy in which it initially expressed a desire to proceed immediately, CC ultimately agreed to continue the hearing on its mo tion until June 21, 1989. On our part, we indicated a desire to solicit briefs prior to June 21, 1989, in order to assist us in our rendering the prompt disposition that CC desired in the event that the parties’ differences were not resolved. Upon advice from CC that the matter was not resolved as of June 9, 1989, we entered an Order of June 12, 1989, requesting all interested parties to file Briefs expressing their respective positions as to CC’s motion on or before June 20, 1989. The final segment of the hearing was then concluded on June 21, 1989. Becoming aware of the decision that day in In re Wedgewood Realty Group, Inc., 878 F.2d 693 (3d Cir.1989), we had our Law Clerk" }, { "docid": "18678860", "title": "", "text": "remained in effect was not improper. . As a consequence of this factual determination, even if Communicraft did have a secured interest in the amount of costs incurred between November 10, 1988 and January 10, 1989 that interest was fully satisfied. At most, Com-municraft incurred total costs of $464,201.75 between November 10, 1988 and January 10, 1989. Communicraft received payments of $509,730.01. Op. 7. These determinations involved credibility and were not clearly erroneous. . .Appellant does not specify how that eventuality would have affected its rights in this case. Appellee argues that, even if the stay expired, appellant had no secured claim to pursue. See note 1, supra. . On February 16, 1989 appellant filed a motion to lift the automatic stay and to sequester funds held by the trustee. A hearing was held March 1, 1989 and continued by agreement four times until May 17, 1989. Appellant requested a decision. When the bankruptcy judge declined, appellant reluctantly agreed to another continuance until June 21, 1989. T. 68-80 May 17, 1989. The bankruptcy judge requested briefing. Following the slip opinion in Wedgewood, the bankruptcy judge notified appellant’s counsel that, at her option, he would rule at the hearing or she could submit a supplemental brief, with a decision due 30 days thereafter. Appellant chose the latter and, on July 14, 1989, filed a seven-page legal memorandum and 17 pages of proposed findings and conclusions. On July 21, 1989 the bankruptcy judge denied appellant’s motion." }, { "docid": "8311322", "title": "", "text": "necessary documents. Orsa’s similar failure to file Statements or Schedules has apparently motivated two outstanding motions by the United States Trustee to appoint a trustee or convert the case to Chapter 7, listed for hearings on April 26, 1989, and May 3, 1989, respectively. The two instant adversary proceedings were filed simultaneously on January 4, 1989. They were tried together most of the day on February 22, 1989, and a few additional hours on February 27, 1989. Since we were cognizant that their disposition must precede the resolution of the Defendant’s § 362(d) motion, which need be resolved quickly, see 11 U.S.C. § 362(e), we entered an Order of February 28, 1989, obliging the parties to promptly prepare proposed findings of fact, proposed conclusions of law, and briefs without the benefit of a transcribed record, on or before March 20, 1989 (Debtors), and April 3, 1989 (Defendant). Although the Debtors’ filings were early (March 16,1989), the Defendant requested and obtained, without objection, an extension until April 10, 1989, to file its submissions. The latter filing was timely, although the Defendant delayed our processes by failing to heed the directive in our Order that copies of same be submitted directly to our chambers. The Briefs of both parties are broken down into Discussions of twelve separate issues. We ultimately determined that our resolution of only the fifth (11 U.S.C. § 548) and last two (contempt and attorneys’ fees) issues were necessary to effect our decision at this time. We therefore shall confine most of our findings of fact and conclusions of law and subsequent discussions thereof, which we are obliged to submit in deciding these matters pursuant to Bankruptcy Rule (hereinafter “B.Rule”) 7052 and Federal Rule of Civil Procedure (hereinafter “F.R.Civ.P.”) 52(a), to those issues. C. FINDINGS OF FACT 1. In July, 1988, Doran contacted the Defendant, situated in Rockville, Maryland, by telephone in response to a magazine advertisement concerning the Defendant’s potential availability to factor the accounts receivable of a business known as Pennsylvania Yellow Pages by Korman, Inc. (hereinafter referred to as “PYP”), which Doran was in the process" }, { "docid": "13944108", "title": "", "text": "a report which would be the basis of a determination 'of the rights of CC in the sums to be held by the Trustee. This motion was therefore continued until March 29, 1989, at which time it was believed that information necessary to make this determination would be available. Although Comer completed his report in timely fashion, there was apparently a hope that the issue of the amount to which CC was entitled could be resolved amicably when all of the Debtor’s work was completed. Therefore, CC agreed to continue the hearing on this motion until April 19, 1989, and again until May 3, 1989. On the latter date, in partial response to the court’s increasing reluctance to perpetuate continuances, counsel for all interested parties, including CC, proposed our establishing a claims bar date on June 16, 1989, shortly after all of the Debtor’s contracts were completed. It was contemplated that our so doing would allow the Trustee to have before him the entire universe of claims in determining the rights of all parties, including CC, to the proceeds in his hands. It was believed that allowing this procedure to unfold could render the matters in dispute moot. As a result, the hearing was continued again until May 17, 1989. On the latter date, it readily became apparent that the period of consensus which had reigned over the past two months was over. CC took the position that its rights as a secured creditor under 11 U.S.C. § 364(d) extended to all cost incurred by it through the date that it was forced off the job on February 10, 1989. All of the other parties, including the Trustee, took the position that CC’s rights under § 364(d) extended no farther than to costs and expenditures advanced by CC through January 10, 1989. Thus, the hearing on this motion, which had begun on March 1, 1989, was resumed on May 17, 1989. After considerable testimony was adduced, we questioned the sudden desire of CC to compel us to render a decision as to its rights prior to the claims bar date" }, { "docid": "13944110", "title": "", "text": "and indicated our likely inability to decide the matter without further briefing and a delay until about the time of the bar date in any event. After an extended colloquy in which it initially expressed a desire to proceed immediately, CC ultimately agreed to continue the hearing on its mo tion until June 21, 1989. On our part, we indicated a desire to solicit briefs prior to June 21, 1989, in order to assist us in our rendering the prompt disposition that CC desired in the event that the parties’ differences were not resolved. Upon advice from CC that the matter was not resolved as of June 9, 1989, we entered an Order of June 12, 1989, requesting all interested parties to file Briefs expressing their respective positions as to CC’s motion on or before June 20, 1989. The final segment of the hearing was then concluded on June 21, 1989. Becoming aware of the decision that day in In re Wedgewood Realty Group, Inc., 878 F.2d 693 (3d Cir.1989), we had our Law Clerk contact CC’s counsel and give her the option of our rendering a brief decision on or before the court departed on June 26, 1989, for an extended vacation, or giving CC an opportunity to submit a supplemental Brief during our vacation, in which case we would extend the duration of the stay until thirty (30) days after this submission. CC’s counsel opted to make an additional submission to us, and we thereupon entered an Order of June 23, 1989, allowing any interested party to file supplementary submissions on or before July 14, 1989, and directing that the stay remain in effect until August 14, 1989. The Trustee filed a one-page supplemental Memorandum of Law, in which the Debtor joined. CC filed a seven-page Memorandum of Law and 17 pages of detailed Proposed Findings of Fact and Conclusions of Law with page references to Transcripts of the hearing dates, which CC had prepared and filed. These submissions, filed on July 14, 1989, though not solicited in such detail, were helpful to the court in resolving this" }, { "docid": "13944105", "title": "", "text": "we are constrained to hold that CC did not have any security interest after that date which could support the relief sought. We also reject CC’s contention that the automatic stay expired pursuant to the terms of 11 U.S.C. § 362(e) and Bankruptcy Rule (hereinafter “B. Rule”) 4001(a)(2), because CC’s ultimate agreement that the final hearing be continued until June 21, 1989, and briefed thereafter, waived the time periods set forth therein, at least through the date of this decision. Therefore; we deny CC’s motion. B. PROCEDURAL HISTORY/FACTS. This case was commenced by the filing of an involuntary Chapter 7 petition against the Debtor on September 27, 1988. On October 13, 1988, the Debtor filed a voluntary Chapter 11 proceeding, at Bankr. No. 88-13595F. That ease was consolidated before this court with this case, and this case thereafter proceeded as a Chapter 11 matter in which an order for relief was entered by agreement. As of September 27, 1988, the Debtor was no longer doing business and had lost its line of credit with Fidelity Bank, National Association (hereinafter “the Bank”). However, it did have certain open printing contracts, one of which was a large government contract that was believed would be profitable if completed. Consequently, the Debtor, the Bank, and CC executed a Stipulation whereby the Debtor was authorized to enter into a Services Agreement with CC pursuant to which CC would advance the Debtor’s costs of operation and obtain a management fee and a first lien priming the Bank on accounts generated under the Services Agreement, pursuant to 11 U.S.C. § 364(d). The Stipulation was approved by this court on November 10, 1988, after notice and a colloquy attended by counsel for the Debt- or, the Bank, and the Official Unsecured Creditors’ Committee (hereinafter “the Committee”), at which no opposition thereto was raised. However, it included a provision reciting that “[t]he Services Agreement shall be effective only for a period of sixty (60) days.... ” Unfortunately, although the Debtor’s counsel prepared a proposed draft of the Services Agreement and the Debtor and CC immediately began operations under the" } ]

[ { "docid": "8236834", "title": "", "text": "only the district court’s holding that it lacked specific jurisdiction over the defendants. II. We review de novo a district court’s dismissal for lack of personal jurisdiction, although we review for clear error any underlying factual findings. Carefirst of Md., Inc. v. Carefirst Pregnancy Ctrs., Inc. (“Carefirst”), 334 F.3d 390, 396 (4th Cir.2003). Where, as here, the district court addresses the question of personal jurisdiction on the basis of motion papers, supporting legal memoranda, and the allegations in the complaint, the plaintiff bears the burden making a prima facie showing of a sufficient jurisdictional basis to survive the jurisdictional challenge. Combs v. Bakker, 886 F.2d 673, 676 (4th Cir.1989). III. In considering CEC’s assertion of personal jurisdiction, we first set forth the applicable law. A federal district court may only exercise personal jurisdiction over a foreign corporation if such jurisdiction is authorized by the long-arm statute of the state in which it sits and application of the long-arm statute is consistent with the due process clause of the Fourteenth Amendment, U.S. Const. amend. XIV § 1. Carefirst, 334 F.3d at 396; see also Stover v. O’Connell Assoc., Inc., 84 F.3d 132, 136 (4th Cir.1996). We turn first to state law. The relevant portion of Virginia’s long-arm statute provides, “A court may exercise personal jurisdiction over a person, who acts directly or by an agent, as to a cause of action arising from the person’s ... [transacting any business in this Commonwealth.” Va.Code Ann. § 8.01-328.1(A)(1). The exercise of personal jurisdiction is proper, then, only if the asserted cause of action “aris[es] from” the non-resident defendant’s “[transacting business” in Virginia. § 8.01-328.1(A)(1); see also DeSantis v. Hafner Creations, Inc., 949 F.Supp. 419, 423-24 (E.D.Va.1996); Chedid v. Boardwalk Regency Corp., 756 F.Supp. 941, 943-44 (E.D.Va.1991). Because Virginia’s long-arm statute is intended to extend personal jurisdiction to the extent permissible under the due process clause, the statutory inquiry merges with the constitutional inquiry. Young v. New Haven Advocate, 315 F.3d 256, 261 (4th Cir.2002) (citing Stover, 84 F.3d at 135-36); see also English & Smith v. Metzger, 901 F.2d 36, 38 (4th Cir.1990);" } ]

[ { "docid": "18204915", "title": "", "text": "franchisee for the territory but that it will be difficult to do so while the Jane Does continue to compete for the business. The Aldriches have refused to identify the Jane Does. (Id. at ¶¶ 62-63.) II. VANHOOK’S MOTION TO DISMISS UNDER Fed. R. Civ. P. 12(b)(2) A. Standard of Review The plaintiff bears the burden of showing that the court has personal jurisdiction over each defendant. Combs v. Bakker, 886 F.2d 673, 676 (4th Cir.1989). At the motion to dismiss stage, the plaintiff need only make a prima facie showing of personal jurisdiction. Id.; Carefirst of Maryland, Inc. v. Carefirst Pregnancy Ctrs., Inc., 334 F.3d 390, 396 (4th Cir.2003). In determining whether a plaintiff has met this burden, “the court must construe all relevant pleading allegations in the light most favorable to the plaintiff, assume credibility, and draw the most favorable inferences for the existence of jurisdiction.” Combs, 886 F.2d at 676. Two conditions must be met for a district court to assert personal jurisdiction over a nonresident defendant: “(1) the exercise of jurisdiction must be authorized under the state’s long-arm statute; and (2) the exercise of jurisdiction must comport with the due process requirements of the Fourteenth Amendment.” Carefirst, 334 F.3d at 396 (citation omitted). “With regard to the first requirement, [the district court] must accept as binding the interpretation of Maryland’s long-arm statute rendered by the Maryland Court of Appeals.” Id. (citing Mylan Labs., Inc. v. Akzo, N.V., 2 F.3d 56, 61 (4th Cir.1993)). Because Maryland courts have long held that the Maryland long-arm statute and the due process clause are coextensive, many federal courts have described the statutory inquiry as “merging” with the constitutional inquiry. Dring v. Sullivan, 423 F.Supp.2d 540, 544-45 (D.Md.2006) (citations omitted). The Maryland Court of Appeals has clarified, however, that it is still necessary to address the long-arm statute when analyzing personal jurisdiction. Id. at 545 (citing Mackey v. Compass Mktg., Inc., 391 Md. 117, 892 A.2d 479, 493 n. 6 (2006)). In some instances, constitutional due process may be satisfied even though the long-arm statute is not. Id. (citing Joseph M." }, { "docid": "2637962", "title": "", "text": "binding and confer jurisdiction on this court, and that specific personal jurisdiction over Defendant is proper because she transacted business in Maryland and caused tortious injury in the state. (Paper 11, at 12). 1. Standard of Review When a court’s power to exercise personal jurisdiction over a nonresident defendant is challenged by a motion under Federal Rule of Civil Procedure 12(b)(2), “the jurisdictional question is to be resolved by the judge, with the burden on the plaintiff ultimately to prove grounds for jurisdiction by a preponderance of the evidence.” Carefirst of Maryland, Inc. v. Carefirst Pregnancy Ctrs., Inc., 334 F.3d 390, 396 (4th Cir.2003)(citing Mylan Labs., Inc. v. Akzo, N.V., 2 F.3d 56, 59-60 (4th Cir.1993)). If jurisdiction turns on disputed facts, the court may resolve the challenge after a separate evidentiary hearing, or may defer ruling pending receipt at trial of evidence relevant to the jurisdictional question. Combs v. Bakker, 886 F.2d 673, 676 (4th Cir.1989). If the court chooses to rule without conducting an evidentiary hearing, relying solely on the ba sis of the complaint, affidavits and discovery materials, “the plaintiff need only make a prima facie showing of personal jurisdiction.” Carefirst, 334 F.3d at 396; see also Mylan, 2 F.3d at 60; Combs, 886 F.2d at 676. In determining whether the plaintiff has proven a prima facie case of personal jurisdiction, the court “must draw all reasonable inferences arising from the proof, and resolve all factual disputes, in the plaintiffs favor.” Mylan, 2 F.3d at 60; Carefirst, 334 F.3d at 396. 2. Forum Selection Clause The forum selection clause in the Licensing Agreement provides, in pertinent part: The federal and state courts located in the State of Maryland shall be the exclusive jurisdiction for any action brought against CoStar in connection with this Agreement or use of the Licensed Product. Licensee irrevocably consents to the jurisdiction of the federal and state courts located in the State of Maryland, or in any State where Licensee’s Authorized Users are located, for any action brought against Licensee in connection with this Agreement or use of the Licensed Product. (Paper 6," }, { "docid": "12601955", "title": "", "text": "business purposes — are insufficient to establish personal jurisdiction under either the Virginia long-arm statute, Va.Code § 8.01-328.1, or the Due Process Clause of the Fourteenth Amendment. When a defendant challenges a court’s exercise of personal jurisdiction, the plaintiff ordinarily must “prove the existence of a ground for jurisdiction by a preponderance of the evidence.” Combs v. Bakker, 886 F.2d 673, 676 (4th Cir.1989). But when, as here, a court addresses the question solely on the basis of threshold motion papers, pleadings, and supporting memoranda, the plaintiffs burden is mere ly to make a prima facie showing of a sufficient jurisdictional basis. Id. Under such circumstances, a court must construe all relevant pleading allegations in the light most favorable to the plaintiff and draw all reasonable inferences for the existence of jurisdiction. Id; see also Mylan Labs., Inc. v. Akzo, N.V., 2 F.3d 56, 59-60 (4th Cir.1993). Resolution of a personal jurisdiction challenge by a non-resident defendant requires a two-step inquiry. Ellicott Mach. Corp., Inc. v. John Holland Party Ltd., 995 F.2d 474, 477 (4th Cir.1993); English & Smith v. Metzger, 901 F.2d 36, 38 (4th Cir.1990). First, a court must assess whether Virginia’s long-arm statute authorizes jurisdiction over the defendant in the circumstances presented. Ellicott, 995 F.2d at 477. Second, it must determine whether due process forbids the exercise of jurisdiction in those circumstances. Id.; English & Smith, 901 F.2d at 38. This two-step jurisdictional analysis, applied here, compels the conclusion that personal jurisdiction is proper in this case. 1. Virginia’s Long-Arm Statute Plaintiffs argument in favor of personal jurisdiction relies exclusively on subsection (A)(1) of the Virginia long-arm statute, which provides for the exercise of personal jurisdiction over a defendant “transacting any business” in Virginia, provided that the cause of action asserted “arises from” the business transacted. Va. Code § 8.01-328.1(A)(1) (2004). Virginia’s long-arm statute is a “single act” statute, which means that even a single act of business can confer jurisdiction provided that it is “significant” and demonstrates “purposeful activity” in Virginia. John G. Kolbe, Inc. v. Chromodern Chair Co., Inc., 211 Va. 736, 180 S.E.2d 664," }, { "docid": "14104819", "title": "", "text": "with the plaintiff to prove, by a preponderance of the evidence, grounds for jurisdiction. See Mylan Laboratories, Inc. v. Akzo, N.V., 2 F.3d 56, 59-60 (4th Cir.1993). If the issue is decided without an evidentiary hearing, the plaintiff needs only to make a prima facie showing of personal jurisdiction. See id. at 60; OwensIllinois, Inc. v. Rapid Am. Corp. (In re Celotex Corp.), 124 F.3d 619, 628 (4th Cir.1997). In making its determination, the court must draw all reasonable inferences arising from the proof, and resolve all factual disputes, in the plaintiffs favor. See Mylan, 2 F.3d at 60. ANALYSIS “A federal court sitting in diversity has personal jurisdiction over a non-resi dent defendant if (1) an applicable state long-arm statute confers jurisdiction and (2) the assertion of that jurisdiction is consistent with constitutional due process.” Nichols v. G.D. Searle & Co., 991 F.2d 1195, 1199 (4th Cir.1993). Because Maryland’s long-arm statute confers jurisdiction to the full extent permitted by the Constitution, the long-arm analysis and the constitutional analysis are typically coextensive. See Md. Code Ann., Cts. & Jud. Proc § 6-103; Ottenheimer Publishers, Inc. v. Playmore, Inc., 158 F.Supp.2d 649, 652-53 (D.Md.2001); McGann v. Wilson, 117 Md.App. 595, 701 A.2d 873, 876 (1997). The Maryland long-arm statute, however, limits jurisdiction to cases where the cause of action “arisfes] from any act enumerated” in the statute itself. Md. Code Ann., Cts. & Jud.Proc § 6-103(a). Thus, a plaintiff must “identify a specific Maryland statutory provision authorizing jurisdiction.” Ottenheimer Publishers, 158 F.Supp.2d at 652; see also Joseph M. Coleman & Assoc. Ltd. v. Colonial Metals, 887 F.Supp. 116, 118-19, n. 2 (D.Md.1995). In this case, Robbins founds jurisdiction on § 6-103(b)(4), which authorizes jurisdiction over persons who [cause] tortious injury in the State or outside of the State by an act or omission outside the State if he regularly does or solicits business, engages in any other persistent course of conduct in the State or derives substantial revenue from goods, food, services, or manufactured products used or consumed in the State. Md. Code Ann., Cts. & Jud.Proc § 6-103(b)(4). In a" }, { "docid": "12578383", "title": "", "text": "preponderance of the evidence.” Carefirst of Md., Inc. v. Carefirst Pregnancy Ctrs., Inc., 334 F.3d 390, 396 (4th Cir.2003) (citing Mylan Labs., Inc. v. Akzo, N.V., 2 F.3d 56, 59-60 (4th Cir.1993)). If jurisdiction turns on disputed facts, the court may resolve the challenge after a separate evidentiary hearing, or may defer ruling pending receipt at trial of evidence relevant to the jurisdictional question. Combs v. Bakker, 886 F.2d 673, 676 (4th Cir.1989). If the court chooses to rule without conducting an evidentiary hearing, relying solely on the basis of the complaint, affidavits, and discovery materials, “the plaintiff need only make a prima facie showing of personal jurisdiction.” Carefirst, 334 F.3d at 396; see also Mylan, 2 F.3d at 60; Combs, 886 F.2d at 676. In determining whether the plaintiff has proven a prima facie case of personal jurisdiction, the court “must draw all reasonable inferences arising from the proof, and resolve all factual disputes, in the plaintiffs favor.” Mylan, 2 F.3d at 60; Carefirst, 334 F.3d at 396. B. Analysis A federal district court may exercise personal jurisdiction over a nonresident defendant “if (1) an applicable state long-arm statute confers jurisdiction and (2) the assertion of that jurisdiction is consistent with constitutional due process.” Nichols v. G.D. Searle & Co., 991 F.2d 1195, 1199 (4th Cir.1993). The Court of Appeals of Maryland has “consistently held that the purview of the long arm statute is coextensive with the limits of personal jurisdiction set by the due process clause of the Federal Constitution.” Beyond Sys., Inc. v. Realtime Gaming Holding Co., 388 Md. 1, 15, 878 A.2d 567 (2005). Yet, courts may not “simply dispense with analysis under the long-arm statute,” but rather, must interpret it “to the limits permitted by the Due Process Clause when [they] can do so consistently with the canons of statutory construction.” Mackey v. Compass Mktg., Inc., 391 Md. 117, 141 n. 6, 892 A.2d 479 (2006), cert. dismissed, 548 U.S. 941, 127 S.Ct. 345, 165 L.Ed.2d 1013 (2006). Maryland’s statute provides in part: (b) A court may exercise personal jurisdiction over a person, who directly" }, { "docid": "12601954", "title": "", "text": "or early 2004, defendant— again, through electronic means of communication — helped the Virginia team plan a series of similar events for Red Bull to take place in the summer of 2004. In March 2004, however, defendant resigned his employment with plaintiff and began working for MJM Creative Services (“MJM”), a Florida-based competitor of plaintiffs, where he allegedly used the plans he helped plaintiffs Virginia team generate to solicit and divert Red Bull’s patronage from plaintiff to MJM. In June 2004, plaintiff filed this diversity action for breach of the Code of Conduct Agreement’s non-solicitation and confidentiality clauses. Defendant now moves to dismiss for lack of personal jurisdiction and for improper venue, or, in the alternative, for transfer of venue to the Middle District of Florida. For the reasons that follow, this motion must be denied. II. A. Personal Jurisdiction Defendant contends that his alleged contacts with the Commonwealth of Virginia — accepting and maintaining employment with a Virginia-based company, communicating regularly with Virginia-based colleagues on business matters, and traveling to Virginia three times for business purposes — are insufficient to establish personal jurisdiction under either the Virginia long-arm statute, Va.Code § 8.01-328.1, or the Due Process Clause of the Fourteenth Amendment. When a defendant challenges a court’s exercise of personal jurisdiction, the plaintiff ordinarily must “prove the existence of a ground for jurisdiction by a preponderance of the evidence.” Combs v. Bakker, 886 F.2d 673, 676 (4th Cir.1989). But when, as here, a court addresses the question solely on the basis of threshold motion papers, pleadings, and supporting memoranda, the plaintiffs burden is mere ly to make a prima facie showing of a sufficient jurisdictional basis. Id. Under such circumstances, a court must construe all relevant pleading allegations in the light most favorable to the plaintiff and draw all reasonable inferences for the existence of jurisdiction. Id; see also Mylan Labs., Inc. v. Akzo, N.V., 2 F.3d 56, 59-60 (4th Cir.1993). Resolution of a personal jurisdiction challenge by a non-resident defendant requires a two-step inquiry. Ellicott Mach. Corp., Inc. v. John Holland Party Ltd., 995 F.2d 474, 477 (4th" }, { "docid": "5713741", "title": "", "text": "Background On November 18, 2003, Plaintiff filed a complaint against Defendants Equifax and Town & Country, alleging violations of the Fair Credit Reporting Act (FCRA), 15 U.S.C. § 1681 et seq., and defamation. Defendant Town & Country has moved to dismiss the complaint against it, pursuant to Fed.R.Civ.P. 12(b)(2), for lack of personal jurisdiction. II. Standard of Review When a court’s power to exercise personal jurisdiction over a nonresident defendant is challenged by a motion under Fed.R.Civ.P. 12(b)(2), “the jurisdictional question is to be resolved by the judge, with the burden on the plaintiff ultimately to prove grounds for jurisdiction by a preponderance of the evidence.” Carefirst of Maryland, Inc. v. Carefirst Pregnancy Centers, Inc., 334 F.3d 390, 396 (4th Cir.2003) (citing Mylan Labs., Inc. v. Akzo, N.V., 2 F.3d 56, 59-60 (4th Cir.1993)). If the existence of jurisdiction turns on disputed facts, the court may resolve the challenge after a separate evidentiary hearing, or may defer ruling pending receipt at trial of evidence relevant to the jurisdictional question. Combs v. Bakker, 886 F.2d 673, 676 (4th Cir.1989). If the court chooses to rule without conducting an evidentiary hearing, relying solely on the basis of the complaint, affidavits and discovery materials, “the plaintiff need only make a prima facie showing of personal jurisdiction.” Carefirst of Maryland, 334 F.3d at 396. See also Mylan Labs., 2 F.3d at 60; Combs, 886 F.2d at 676. In determining whether the plaintiff has proven a prima facie case of personal jurisdiction, the court “must draw all reasonable inferences arising from the proof, and resolve all factual disputes, in the plaintiffs favor.” Mylan, 2 F.3d at 60; Carefirst of Maryland, 334 F.3d at 396. A court may not exercise personal jurisdiction over a non-resident defendant unless the activities of that individual are sufficient to subject the party to that forum’s long-arm statute. Maryland’s long-arm statute, Md.Code Ann., Cts. & Jud. Proc. § 6 — 103(b), authorizes the exercise of personal jurisdiction to the limits permitted by the Due Process Clause of the Fourteenth Amendment. See ALS Scan, Inc. v. Digital Service Consultants, Inc., 293 F.3d" }, { "docid": "12578382", "title": "", "text": "upon Fink v. Pohlman, 85 Md.App. 106, 118-19, 582 A.2d 539 (1990), for the proposition that Maryland courts lack jurisdiction to grant injunctive relief, including a constructive trust, over real or personal property located in another state. This issue concerns only the relief that this court is empowered to grant, and it would be premature to decide this question at this early stage of the proceeding. This aspect of Stephen DeLuca’s motion to dismiss will be denied without prejudice to renewal at an appropriate time. III. Personal Jurisdiction Each of the remaining Defendants, Mr. Thames, the Stutsman Firm, Mr. Markus, Stephen DeLuca and the DeLuca entities argue that this court lacks personal jurisdiction over them with respect to the tort claims alleged in the amended complaint. A. Standard of Review When a court’s power to exercise personal jurisdiction over a nonresident defendant is challenged by a motion under Fed. R.Civ.P. 12(b)(2), “the jurisdictional question is to be resolved by the judge, with the burden on the plaintiff ultimately to prove grounds for jurisdiction by a preponderance of the evidence.” Carefirst of Md., Inc. v. Carefirst Pregnancy Ctrs., Inc., 334 F.3d 390, 396 (4th Cir.2003) (citing Mylan Labs., Inc. v. Akzo, N.V., 2 F.3d 56, 59-60 (4th Cir.1993)). If jurisdiction turns on disputed facts, the court may resolve the challenge after a separate evidentiary hearing, or may defer ruling pending receipt at trial of evidence relevant to the jurisdictional question. Combs v. Bakker, 886 F.2d 673, 676 (4th Cir.1989). If the court chooses to rule without conducting an evidentiary hearing, relying solely on the basis of the complaint, affidavits, and discovery materials, “the plaintiff need only make a prima facie showing of personal jurisdiction.” Carefirst, 334 F.3d at 396; see also Mylan, 2 F.3d at 60; Combs, 886 F.2d at 676. In determining whether the plaintiff has proven a prima facie case of personal jurisdiction, the court “must draw all reasonable inferences arising from the proof, and resolve all factual disputes, in the plaintiffs favor.” Mylan, 2 F.3d at 60; Carefirst, 334 F.3d at 396. B. Analysis A federal district court" }, { "docid": "19807152", "title": "", "text": "the pending Motion to Dismiss on February 26, 2010. Defendant’s Motion to Dismiss has been fully briefed and is now ready for the Court’s ruling. STANDARD OF REVIEW Under Federal Rule of Civil Procedure 12(b)(2), the party asserting personal jurisdiction has the burden to prove the existence of a ground for jurisdiction by a preponderance of the evidence. Mylan Labs., Inc. v. Akzo, N.V., 2 F.3d 56, 60 (4th Cir.1993). When a court addresses the question of jurisdiction based only on the pleadings, the allegations in the complaint, the motion papers, and any supporting legal memoranda, without an evidentiary hearing, the burden is on the plaintiff to make a prima facie showing of a sufficient basis for jurisdiction. Id.; see also New Wellington Fin. Corp. v. Flagship Resort Dev. Corp., 416 F.3d 290, 294 (4th Cir.2005). In determining whether the plaintiff has proven a prima facie case of personal jurisdiction, the court “must draw all reasonable inferences arising from the proof, and resolve all factual disputes, in the plaintiffs favor.” Mylan, 2 F.3d at 60; see also Dring v. Sullivan, 423 F.Supp.2d 540, 543 (D.Md.2006). Since this Court has not conducted any evidentiary hearing, Plaintiff only has the burden to establish a prima facie basis for the Court to exercise personal jurisdiction over Defendant Casey. The purpose of a motion to dismiss pursuant to Federal Rule of Civil Procedure 12(b)(6) is to test the sufficiency of the plaintiffs complaint. See Edwards v. City of Goldsboro, 178 F.3d 231, 243 (4th Cir. 1999). Generally, a complaint need only satisfy the “simplified pleading standard” of Rule 8(a), Swierkiewicz v. Sorema N.A., 534 U.S. 506, 513, 122 S.Ct. 992, 152 L.Ed.2d 1 (2002), which requires a “short and plain statement of the claim showing that the pleader is entitled to relief.” Fed. R.Civ.P. 8(a)(2). Nevertheless, the Supreme Court has directed courts that “Rule 8 still requires a ‘showing’ ” of “enough facts to state a claim to relief that is plausible on its face.” Bell Atl. Corp. v. Twombly, 550 U.S. 544, 556 n. 3, 127 S.Ct. 1955, 167 L.Ed.2d 929 (2007). In" }, { "docid": "2863021", "title": "", "text": "and received no salary from the company. (De Meester Dec. ¶ 3.) Belovo S.A. did inform Mr. Hawes that it would sell its products to him for resale in the United States, but in practice this arrangement has been limited severely by the USDA’s decision to restrict the importation of 98% of the company’s product line. (Id. ¶¶ 3, 8.) Mr. Hawes received one commission from Belovo S.A., but the product was shipped to Wisconsin, not North Carolina. Finally, Mr. Hawes chaired the opening session at Belovo S.A.’s “mini-symposium” on egg science and technology in Washington, D.C., in September 2002. Belovo S.A.’s Web site directed all inquiries concerning the mini-symposium to Nicole Hawes in North Carolina. II. DISCUSSION ' Belovo S.A. moves to dismiss the amended complaint for lack of personal jurisdiction pursuant to Federal Rule of Civil Procedure 12(b)(2). Plaintiffs bear the burden of establishing personal jurisdiction by a preponderance of the evidence. Mylan Labs., Inc. v. Akzo, N.V., 2 F.3d 56, 59-60 (4th Cir.1993). When a court decides such a motion without an evidentiary hearing, the plaintiff must prove at least a prima facie case of personal jurisdiction. Id. at 60. In determining whether a plaintiff has met this burden, the court must resolve all factual disputes and draw all reasonable inferences arising from the pleadings in the plaintiffs favor. Id. Two conditions must be satisfied for the court to assert personal jurisdiction over a nonresident defendant: jurisdiction must be authorized by the forum state’s long-arm statute, and the exercise of jurisdiction must comport with due process. Christian Sci. Bd. of Dirs. of the First Church of Christ, Scientist v. Nolan, 259 F.3d 209, 215 (4th Cir.2001). North Carolina’s long-arm statute is interpreted liberally in favor of finding jurisdiction. Dillon v. Numismatic Funding Corp., 291 N.C. 674, 676, 231 S.E.2d 629, 630 (1977). Following the lead of North Carolina state courts, federal courts consistently have construed the statute as extending jurisdiction to the full extent permitted by the Fourteenth Amendment. See, e.g., Christian Sci. Bd. of Dirs., 259 F.3d at 215 (citing Century Data Sys., Inc. v. McDonald," }, { "docid": "14403349", "title": "", "text": "334 F.3d at 396. III. Analysis Defendant has moved to dismiss Plaintiffs complaint on the ground that his contact with Maryland — the August 30, 2005, e-mail message distributed via a listserv — is insufficient to subject him to personal jurisdiction. Plaintiff responds that specific jurisdiction over Defendant is proper because the brunt of the injury Plaintiff suffered was in Maryland, where Plaintiff is involved in tae kwon do activities, and because Defendant purposefully directed his e-mail statement to Maryland. Plaintiff does not address whether Defendant’s contacts are sufficient to satisfy Maryland’s long-arm statute. The listserv has 69 members and is operated by TRUE. The listserv disseminates e-mails of interest to other referees and members of the tae kwon do community who subscribe. Plaintiff does not state exactly how many subscribers are in Maryland, although Plaintiff alleges that the e-mail reached at least three recipients in Maryland: Plaintiff, Mr. Pham, and Mr. Holloway. The e-mail appears to have reached other members of the Maryland tae kwon do community, including the Maryland State Tae Kwon Do Executive Committee and the Maryland State Vice-Chairman of the Referee Committee, although it is unclear whether they learned of the e-mail as listserv members or from another source. A federal district court may exercise personal jurisdiction over a nonresident defendant “if (1) an applicable state long-arm statute confers jurisdiction and (2) the assertion of that jurisdiction is consistent with constitutional due process.” Nichols v. G.D. Searle & Co., 991 F.2d 1195, 1199 (4th Cir.1993). Many courts have concluded that Maryland’s long-arm statute, Md.Code Ann., Cts. & Jud. Proc. § 6-103, authorizes the exercise of personal jurisdiction to the limits permitted by the Due Process Clause of the Fourteenth Amendment. See ALS Scan, Inc. v. Digital Serv. Consultants, Inc., 293 F.3d 707, 710 (4th Cir.2002), cert. denied, 537 U.S. 1105, 123 S.Ct. 868, 154 L.Ed.2d 773 (2003); Base Metal Trading, Ltd. v. OJSC “Novokuznetsky Aluminum Factory,” 283 F.3d 208, 212-13 (4th Cir.2002). In applying Maryland’s long-arm statute, federal courts often state that “[the] statutory inquiry merges with [the] constitutional inquiry.” Carefirst, 334 F.3d 390, 396-97 (citing" }, { "docid": "22126938", "title": "", "text": "its complaint, the denial of its motion for reconsideration, and the denial of its motion to vacate. We possess jurisdiction pursuant to 28 U.S.C. § 1291. III. We review de novo a dismissal for lack of personal jurisdiction, Koehler v. Dodwell, 152 F.3d 304, 307 (4th Cir.1998), though we review any underlying factual findings for clear error, see In re Celotex Corp., 124 F.3d 619, 627 (4th Cir.1997). When personal jurisdiction is properly challenged under Rule 12(b)(2), the jurisdictional question is to be resolved by the judge, with the burden on the plaintiff ultimately to prove grounds for jurisdiction by a preponderance of the evidence. Mylan Labs., Inc. v. Akzo, N.V., 2 F.3d 56, 59-60 (4th Cir.1993). When, however, as here, a district court decides a pretrial personal jurisdiction motion without conducting an evidentiary hearing, the plaintiff need only make a prima facie showing of personal jurisdiction. Combs v. Bakker, 886 F.2d 673, 676 (4th Cir.1989). In deciding whether the plaintiff has made the requisite showing, the court must take all disputed facts and reasonable inferences in favor of the plaintiff. See Mylan Labs., 2 F.3d at 60. We review a district court’s discovery orders for abuse of discretion. See id. at 64. We also review for abuse of discretion the denial of a Rule 6(b)(1) motion for extension of time. See Lujan v. Nat’l Wildlife Fed’n, 497 U.S. 871, 110 S.Ct. 3177, 111 L.Ed.2d 695 (1990). IV. A. Under Federal Rule of Civil Procedure 4(k)(l)(A), a federal court may exercise personal jurisdiction over a defendant in the manner provided by state law. See ESAB Group, Inc. v. Centricut, Inc., 126 F.3d 617, 622 (4th Cir.1997). Thus, for a district court to assert personal jurisdiction over a nonresident defendant, two conditions must be satisfied: (1) the exercise of jurisdiction must be authorized under the state’s long-arm statute; and (2) the exercise of jurisdiction must comport with the due process requirements of the Fourteenth Amendment. Christian Sci. Bd. of Dirs. of the First Church of Christ v. Nolan, 259 F.3d 209, 215 (4th Cir.2001). With regard to the first requirement, we" }, { "docid": "19807151", "title": "", "text": "such as “trade shows [and] trade publications.” (Compl. ¶29.) Plaintiff contends that it and Defendants promote their services at the same computer trade shows and alleges that at a 2009 Commonwealth of Virginia’s Innovative Technology Symposium “several people confronted [it] and asked whether [it] and PTG were related.... ” {Id. at ¶36.) Moreover, Plaintiff alleges that after PTG became a Microsoft Gold Certified Partner, the same partnership classification that Plaintiff holds, and on at least one occasion, Microsoft confused PTG for Plaintiff “in providing a reference for computer services to the Richmond Redevelopment Housing Authority.” Plaintiff filed the instant lawsuit for trademark infringement and unfair competition under the Lanham Act and for a declaratory judgment on January 21, 2010, and seeks monetary, injunctive, and declaratory relief. Defendant PTG has not objected to the Court’s exercise of personal jurisdiction over it and answered Plaintiffs Complaint on February 26, 2010. Defendant Casey objects to the Court’s right to exercise personal jurisdiction over him and contends that the Complaint fails to set forth a cognizable claim and filed the pending Motion to Dismiss on February 26, 2010. Defendant’s Motion to Dismiss has been fully briefed and is now ready for the Court’s ruling. STANDARD OF REVIEW Under Federal Rule of Civil Procedure 12(b)(2), the party asserting personal jurisdiction has the burden to prove the existence of a ground for jurisdiction by a preponderance of the evidence. Mylan Labs., Inc. v. Akzo, N.V., 2 F.3d 56, 60 (4th Cir.1993). When a court addresses the question of jurisdiction based only on the pleadings, the allegations in the complaint, the motion papers, and any supporting legal memoranda, without an evidentiary hearing, the burden is on the plaintiff to make a prima facie showing of a sufficient basis for jurisdiction. Id.; see also New Wellington Fin. Corp. v. Flagship Resort Dev. Corp., 416 F.3d 290, 294 (4th Cir.2005). In determining whether the plaintiff has proven a prima facie case of personal jurisdiction, the court “must draw all reasonable inferences arising from the proof, and resolve all factual disputes, in the plaintiffs favor.” Mylan, 2 F.3d at 60;" }, { "docid": "11756139", "title": "", "text": "Maryland or done any business in Maryland, their actions in Maryland lack sufficient effects in Maryland, and the complaint fails to allege sufficient facts to support formation of a contract in Maryland. 1. Standard of Review for Rule 12(b)(2) When a court’s power to exercise personal jurisdiction over a nonresident defendant is challenged by a motion under Federal Rule of Civil Procedure 12(b)(2), and the question of jurisdiction is resolved based only on the pleadings, the allegations in the complaint, the motion papers, and any supporting legal memoranda, without an evidentiary hearing, the burden is on the plaintiff to make a prima facie showing of a sufficient basis for jurisdiction. Mylan Labs., Inc. v. Akzo, N.V., 2 F.3d 56, 60 (4th Cir.1993); see also Carefirst of Maryland, Inc. v. Carefirst Pregnancy Ctrs., Inc., 334 F.3d 390, 396 (4th Cir.2003). In determining whether the plaintiff has proven a prima facie case of personal jurisdiction, the court “must draw all reasonable inferences arising from the proof, and resolve all factual disputes, in the plaintiffs favor.” Mylan, 2 F.3d at 60; see also Combs v. Bakker, 886 F.2d 673, 676 (4th Cir.1989). 2. Forum Selection Clause Users of CoStar’s website who do not enter into a written licensing agreement, but pay to use CoStar’s database on an a la carte basis, agree to a Terms of Use provision which has a forum selection clause that provides, in relevant part: You irrevocably consent to the jurisdiction of the federal and state courts located in the State of Maryland, and to the jurisdiction of the federal and state courts located in any State where you are located, for any action brought against you in connection with these Terms of Use or use of the Product. (Paper 33, Ex. 1.) CoStar argues that the forum selection clauses are binding, and by accepting the Terms of Use, within the forum selection clause, Lawson and Gressett consented to personal jurisdiction in Maryland. (Compl. ¶ 13.) In addition CoStar posits, and the Court agrees, that Lawson and Gressett availed themselves of the contractual benefits provided by Co Star and" }, { "docid": "14403348", "title": "", "text": "to prove grounds for jurisdiction by a preponderance of the evidence.” Carefirst of Md., Inc. v. Carefirst Pregnancy Ctrs., Inc., 334 F.3d 390, 396 (4th Cir.2003) (citing Mylan Labs., Inc. v. Akzo, N.V., 2 F.3d 56, 59-60 (4th Cir.1993)). If the existence of jurisdiction turns on disputed facts, the court may resolve the challenge after a separate evidentiary hearing, or may defer ruling pending receipt at trial of evidence relevant to the jurisdictional question. Combs v. Bakker, 886 F.2d 673, 676 (4th Cir.1989). If the court chooses to rule without conducting an evidentiary hearing, relying solely on the basis of the complaint, affidavits, and discovery materials, “the plaintiff need only make a prima facie showing of personal jurisdiction.” Carefirst, 334 F.3d at 396; see also Mylan, 2 F.3d at 60; Combs, 886 F.2d at 676. In determining whether the plaintiff has proven a prima facie case of personal jurisdiction, the court “must draw all reasonable inferences arising from the proof, and resolve all factual disputes, in the plaintiffs favor.” Mylan, 2 F.3d at 60; Carefirst, 334 F.3d at 396. III. Analysis Defendant has moved to dismiss Plaintiffs complaint on the ground that his contact with Maryland — the August 30, 2005, e-mail message distributed via a listserv — is insufficient to subject him to personal jurisdiction. Plaintiff responds that specific jurisdiction over Defendant is proper because the brunt of the injury Plaintiff suffered was in Maryland, where Plaintiff is involved in tae kwon do activities, and because Defendant purposefully directed his e-mail statement to Maryland. Plaintiff does not address whether Defendant’s contacts are sufficient to satisfy Maryland’s long-arm statute. The listserv has 69 members and is operated by TRUE. The listserv disseminates e-mails of interest to other referees and members of the tae kwon do community who subscribe. Plaintiff does not state exactly how many subscribers are in Maryland, although Plaintiff alleges that the e-mail reached at least three recipients in Maryland: Plaintiff, Mr. Pham, and Mr. Holloway. The e-mail appears to have reached other members of the Maryland tae kwon do community, including the Maryland State Tae Kwon Do" }, { "docid": "7801360", "title": "", "text": "all counts dismissed against defendants EDO, Ca-prario, and Puzzo for lack of personal jurisdiction. (Defs.’ Mem. in Supp. of Mot. to Dismiss (“Defs.’ Mem.”) at 4-18.) In support of this motion, defendants present several affidavits attesting to their limited contacts with Maryland. (See Smith Aff.; Caprario Aff.; Puzzo Aff.) Glynn counters by proffering several connections between Maryland and the defendants and by arguing that this Court has both general and specific jurisdiction over each of the defendants. (Pl.’s Mem. in Opp’n to Defs.’ Mot. to Dismiss at 3-21.) Because I make this jurisdictional determination on the basis of the pleadings and affidavits alone, Glynn must only make a prima facie showing of personal jurisdiction to proceed. See, e.g., Mylan Labs., Inc. v. Akzo, N.V., 2 F.3d 56, 60 (4th Cir.1993). This Court can exercise personal jurisdiction when: “(1) the exercise of jurisdiction [is] authorized under the state’s long-arm statute; and (2) the exercise of jurisdiction ... comport[s] with the due process requirements of the Fourteenth Amendment.” Carefirst of Md., Inc., 334 F.3d at 396. The Maryland long-arm statute was intended to reach to the outer limits of due process. See, e.g., Beyond Sys., Inc. v. Realtime Gaming Holding Co., LLC, 388 Md. 1, 878 A.2d 567, 576 (2005). Accordingly, the two-part inquiry merges and any limitations on this Court’s jurisdiction must be found in the Fourteenth Amendment. As to the individual defendants Caprario and Puzzo, I find that this Court has no jurisdiction. As to EDO, I find that this Court does have jurisdiction. A. Defendants Caprario and Puzzo are employees of 1ST who were allegedly instrumental in the retaliation underlying this litigation. In support of exercising jurisdiction over these individual defendants, Glynn proffers the following facts: (1) Caprario and Puzzo are employees of 1ST, which has offices in Maryland; (2) Caprario and Puzzo owned stock in 1ST; (3) Caprario and Puzzo profited financially when EDO purchased 1ST; (4) Caprario and Puzzo made and received phone calls to 1ST stockholders in Maryland; (5) Caprario and Puzzo exchanged emails with 1ST stockholders in Maryland; (6) Caprario has visited Maryland in the" }, { "docid": "11756138", "title": "", "text": "Eight), and 12(e), and in the alternative, a Motion to Transfer Venue. The facts underlying the claims against both Lawson and Gressett are the same. The Court will address the motions in the order outlined above, and where the motions overlap, the Court will address them simultaneously. II. MOTIONS TO DISMISS A. Personal Jurisdiction The Defendants first challenge this Court’s authority to assert personal juris diction on the basis that they lack sufficient connections with Maryland to satisfy the State’s long-arm statute, or Due Process. CoStar, asserts that jurisdiction is proper over the Defendants based on both the forum selection clause located within the Terms of Use on its website and under the Maryland long-arm statute, consistent with Due Process. Specifically, CoStar argues that Lawson and Gressett have consented to jurisdiction in Maryland by accepting the Terms of Use on its website, and due to their continuous tortious conduct in Maryland for their private business purposes. Lawson and Gressett argue that presence and consent is lacking because neither of the Defendants have ever been to Maryland or done any business in Maryland, their actions in Maryland lack sufficient effects in Maryland, and the complaint fails to allege sufficient facts to support formation of a contract in Maryland. 1. Standard of Review for Rule 12(b)(2) When a court’s power to exercise personal jurisdiction over a nonresident defendant is challenged by a motion under Federal Rule of Civil Procedure 12(b)(2), and the question of jurisdiction is resolved based only on the pleadings, the allegations in the complaint, the motion papers, and any supporting legal memoranda, without an evidentiary hearing, the burden is on the plaintiff to make a prima facie showing of a sufficient basis for jurisdiction. Mylan Labs., Inc. v. Akzo, N.V., 2 F.3d 56, 60 (4th Cir.1993); see also Carefirst of Maryland, Inc. v. Carefirst Pregnancy Ctrs., Inc., 334 F.3d 390, 396 (4th Cir.2003). In determining whether the plaintiff has proven a prima facie case of personal jurisdiction, the court “must draw all reasonable inferences arising from the proof, and resolve all factual disputes, in the plaintiffs favor.” Mylan, 2" }, { "docid": "14104818", "title": "", "text": "15-16.) It is undisputed that Yutopian sold or licensed the Go Database to third parties through www.yutopian.com. Neither plaintiff nor defendant have put forth statistics on the amount of business Yutopian conducts on its website, however Yutopian admits that it entered into 46 transactions with Maryland residents through the website and a toll-free telephone number during a 10]é-month time frame. (Def.’s Mot. to Dismiss at 5.) No details about any of these 46 transactions are proffered, although Robbins has submitted the affidavit of a Maryland resident who affirms that he has purchased between $500 and $1,000 of “Go products,” including books, each year for the past five years. (PL’s Opp. Ex. 1.) The affiant also submits that he has regularly received flyers from Yutopian, has been exposed to advertising taken out by Yutopian in the trade journal “American Go Journal,” and has received approximately five telephone solicitations from Yutopian. (Id.) Standard of Review When a defendant challenges a court’s personal jurisdiction under Rule 12(b)(2) of the Federal Rules of Civil Procedure, the burden rests ultimately with the plaintiff to prove, by a preponderance of the evidence, grounds for jurisdiction. See Mylan Laboratories, Inc. v. Akzo, N.V., 2 F.3d 56, 59-60 (4th Cir.1993). If the issue is decided without an evidentiary hearing, the plaintiff needs only to make a prima facie showing of personal jurisdiction. See id. at 60; OwensIllinois, Inc. v. Rapid Am. Corp. (In re Celotex Corp.), 124 F.3d 619, 628 (4th Cir.1997). In making its determination, the court must draw all reasonable inferences arising from the proof, and resolve all factual disputes, in the plaintiffs favor. See Mylan, 2 F.3d at 60. ANALYSIS “A federal court sitting in diversity has personal jurisdiction over a non-resi dent defendant if (1) an applicable state long-arm statute confers jurisdiction and (2) the assertion of that jurisdiction is consistent with constitutional due process.” Nichols v. G.D. Searle & Co., 991 F.2d 1195, 1199 (4th Cir.1993). Because Maryland’s long-arm statute confers jurisdiction to the full extent permitted by the Constitution, the long-arm analysis and the constitutional analysis are typically coextensive. See Md. Code" }, { "docid": "5713742", "title": "", "text": "676 (4th Cir.1989). If the court chooses to rule without conducting an evidentiary hearing, relying solely on the basis of the complaint, affidavits and discovery materials, “the plaintiff need only make a prima facie showing of personal jurisdiction.” Carefirst of Maryland, 334 F.3d at 396. See also Mylan Labs., 2 F.3d at 60; Combs, 886 F.2d at 676. In determining whether the plaintiff has proven a prima facie case of personal jurisdiction, the court “must draw all reasonable inferences arising from the proof, and resolve all factual disputes, in the plaintiffs favor.” Mylan, 2 F.3d at 60; Carefirst of Maryland, 334 F.3d at 396. A court may not exercise personal jurisdiction over a non-resident defendant unless the activities of that individual are sufficient to subject the party to that forum’s long-arm statute. Maryland’s long-arm statute, Md.Code Ann., Cts. & Jud. Proc. § 6 — 103(b), authorizes the exercise of personal jurisdiction to the limits permitted by the Due Process Clause of the Fourteenth Amendment. See ALS Scan, Inc. v. Digital Service Consultants, Inc., 293 F.3d 707, 710 (4th Cir.2002), cert. denied, 537 U.S. 1105, 123 S.Ct. 868, 154 L.Ed.2d 773 (2003); Base Metal Trading, Ltd. v. OJSC “Novokuznetsky Aluminum Factory,” 283 F.3d 208, 212-13 (4th Cir.), cert. denied, 537 U.S. 822, 123 S.Ct. 101, 154 L.Ed.2d 30 (2002). Thus, the inquiry for the court is whether the defendant purposefully established “minimum contacts” with Maryland such that maintenance of the suit does not offend “traditional notions of fair play and substantial justice.” International Shoe Co. v. Washington, 326 U.S. 310, 316, 66 S.Ct. 154, 90 L.Ed. 95 (1945) (quoting Milliken v. Meyer, 311 U.S. 457, 463, 61 S.Ct. 339, 85 L.Ed. 278 (1940)). See also Burger King Corp. v. Rudzewicz, 471 U.S. 462, 474, 105 S.Ct. 2174, 85 L.Ed.2d 528 (1985); Base Metal Trading, Ltd., 283 F.3d at 213. The crucial issue is whether the defendant’s contacts with the forum state, here Maryland, are substantial enough that it “should reasonably anticipate being haled into court there.” World-Wide Volkswagen Corp. v. Woodson, 444 U.S. 286, 297, 100 S.Ct. 559, 62 L.Ed.2d 490" }, { "docid": "7801359", "title": "", "text": "period. (See Pl.’s Mem. in Supp. of Mot. for Prelim. Disc, on Personal Jurisdiction and to Stay Decision of Defs.’ Mot. to Dismiss at 1-3.) Such limited contacts are clearly insufficient for this Court to exercise personal jurisdiction when the lawsuit does not arise out of those contacts, see infra § IV(A), and any other claims are purely speculative. See Hill v. Brush Engineered Materials, Inc., 383 F.Supp.2d 814, 819 (D.Md.2005) (denying jurisdictional discovery when plaintiff “failed to proffer any further facts that, if proven, would affect this Court’s exercise of jurisdiction”); Quinn v. Bowmar Publ’g Co., 445 F.Supp. 780, 787 (D.Md.1978) (declining to postpone decision on the personal jurisdiction question until after discovery). This conclusion is bolstered by defendants’ affidavits, which highlight their extremely limited contacts with Maryland. (See Caprario Aff.; Puz-zo Aff.) Accordingly, Glynn’s motion is denied. See McLaughlin v. McPhail, 707 F.2d 800, 806-07 (4th Cir.1983) (affirming district court’s decision to deny plaintiffs motion to depose defendants on jurisdictional question). IV. Defendants move under Federal Rule of Civil Procedure 12(b)(2) to have all counts dismissed against defendants EDO, Ca-prario, and Puzzo for lack of personal jurisdiction. (Defs.’ Mem. in Supp. of Mot. to Dismiss (“Defs.’ Mem.”) at 4-18.) In support of this motion, defendants present several affidavits attesting to their limited contacts with Maryland. (See Smith Aff.; Caprario Aff.; Puzzo Aff.) Glynn counters by proffering several connections between Maryland and the defendants and by arguing that this Court has both general and specific jurisdiction over each of the defendants. (Pl.’s Mem. in Opp’n to Defs.’ Mot. to Dismiss at 3-21.) Because I make this jurisdictional determination on the basis of the pleadings and affidavits alone, Glynn must only make a prima facie showing of personal jurisdiction to proceed. See, e.g., Mylan Labs., Inc. v. Akzo, N.V., 2 F.3d 56, 60 (4th Cir.1993). This Court can exercise personal jurisdiction when: “(1) the exercise of jurisdiction [is] authorized under the state’s long-arm statute; and (2) the exercise of jurisdiction ... comport[s] with the due process requirements of the Fourteenth Amendment.” Carefirst of Md., Inc., 334 F.3d at 396. The" } ]

[ { "docid": "22095186", "title": "", "text": "stand. B. No Requirement to Find Other Applicants We turn next to defendant’s contention that the plaintiff must show that the defendant kept the position open after Chertkova’s termination and continued to seek other applicants. Because it contradicts estab lished precedent, we decline to adopt this proposition. As noted earlier, in presenting a prima facie case of discriminatory discharge the plaintiff must present proof that her discharge occurred in circumstances giving rise to an inference of discrimination on the basis of her membership in that class. Chambers, 43 F.3d at 37; see also Woroski v. Nashua Corp., 31 F.3d 105, 108 (2d Cir.1994); Stetson, 995 F.2d at 359. This fourth element of the prima facie case may be satisfied in a variety of ways. The circumstances that give rise to an inference of discriminatory motive include actions or remarks made by decisionmakers that could be viewed as reflecting a discriminatory animus, see Ostrowski v. Atlantic Mut. Ins. Cos., 968 F.2d 171, 182 (2d Cir.1992), preferential treatment given to employees outside the protected class, see Washington v. Garrett, 10 F.3d 1421, 1434 (9th Cir.1993), and, in a corporate downsizing, the systematic transfer of a discharged employee’s duties to other employees, Gallo, 22 F.3d at 1225, or a pattern of recommending the plaintiff for positions for which he or she is not qualified and failure to surface plaintiffs name for positions for which he or she is well-qualified, Cronin v. Aetna Life Ins. Co., 46 F.3d 196, 205 (2d Cir.1995). A plaintiff might also rely upon the fact that the defendant, following plaintiffs termination, continued to seek applicants to fill the position, Meiri v. Dacon, 759 F.2d 989, 996 (2d Cir.), cert. denied, 474 U.S. 829, 106 S.Ct. 91, 88 L.Ed.2d 74 (1985), or, more generally, upon the timing or sequence of events leading to the plaintiffs termination, Chambers, 43 F.3d at 37. As the cited cases make clear, there is no unbending or rigid rule about what circumstances allow an inference of discrimination when there is an adverse employment decision. Although the Supreme Court held in McDonnell Douglas that a prima" } ]

[ { "docid": "18164091", "title": "", "text": "of his race and color in violation of Title VII, § 1981 and the NYSHRL. In order to establish a prima facie case of discriminatory discharge, Anderson must demonstrate that (1) he is a member of a protected class; (2) he was qualified for the position; (3) he suffered an adverse employment action; and (4) the adverse employment action occurred under circumstances giving rise to an inference of discrimination. See Stern v. Trustees of Columbia Univ., 131 F.3d 305, 311-12 (2d Cir.1997) (citing Burdine, 450 U.S. at 253 & n. 6, 101 S.Ct. at 1094 n. 6); Chambers v. TRM Copy Centers Corp., 43 F.3d 29, 37 (2d Cir.1994). The plaintiffs burden of demonstrating a prima facie case is de minimus. See Kerzer v. Kingly Mfg., 156 F.3d 396, 401 (2d Cir.1998). “In determining whether the plaintiff has met the de minimus initial burden of showing circumstances giving rise to an inference of discrimination, the function of the court on a summary judgment motion is to determine whether the proffered admissible evidence shows circumstances that would be sufficient to permit' a rational finder of fact to infer a discriminatory motive. It is not the province of the summary judgment court itself to decide what inferences should be drawn.” Cronin v. Aetna Life Ins. Co., 46 F.3d 196, 204 (2d Cir.1995) (internal quotation marks and citation omitted). (a) First and Second Elements There is no dispute that Anderson is a member of a protected class and that he was qualified for his position. Accordingly, to determine whether Anderson has proved a 'prima facie case, the real issues in dispute are whether he suffered an adverse employment action and whether he was treated differently than similarly-situated non-minority employees for the same or similar conduct. The record in this case demonstrates that Anderson has failed to allege facts sufficient to establish a prima facie case of unlawful discrimination. (b) Third Element With respect to the third element, Anderson asserts that Home Depot’s termination of his employment at the Valley Stream store and reinstatement to a part-time employment position at the Ozone Park store" }, { "docid": "10652127", "title": "", "text": "Commuter R.R. Co., No. 04-CV-1430, 2006 WL 2790402, at *5 (D.Conn. Sept. 27, 2006) (“Consideration of the ... existence of an adverse employment actionf ] requires isolation of the specific actions claimed by the plaintiff.”). Still, the Court will assume for purposes of this motion that both can be adverse employment actions. The Second Circuit has not created an “unbending or rigid rule about what circumstances allow an inference of discrimination when there is an adverse employment decision.” Chertkova v. Conn. Gen. Life Ins. Co., 92 F.3d 81, 91 (2d Cir.1996). A Plaintiff may satisfy this element of the prima facie case by showing direct evidence of discriminatory animus, such as “remarks made by decisionmakers that could be viewed as reflecting [such] animus.” Id. Alternatively, “[a] plaintiff may support an inference of race discrimination by demonstrating that similarly situated employees of a different race were treated more favorably.” Norville v. Staten Island Univ. Hosp., 196 F.3d 89, 95 (2d Cir.1999); see also Mandell v. Cnty. of Suffolk, 316 F.3d 368, 379 (2d Cir.2003) (“A showing of disparate treatment — that is, a showing that the employer treated plaintiff ‘less favorably than a similarly situated employee outside his protected group’ — is a recognized method of raising an inference of discrimination for purposes of making out a prima facie case.” (quoting Graham v. Long Island R.R., 230 F.3d 34, 39 (2d Cir.2000))). Conclusory and speculative allegations will not suffice to demonstrate discriminatory intent. Rather, Plaintiff “must point to facts that suggest” that the adverse action was motivated, at least in part, by discriminatory animus. Kalsi v. N.Y.C. Transit Auth., 62 F.Supp.2d 745, 753 (E.D.N.Y.1998), aff'd, 189 F.3d 461 (2d Cir.1999); see also Anderson v. Port Auth. of N.Y. & N.J., No. 04-CV-4331, 2009 WL 102211, at *4 (S.D.N.Y. Jan. 12, 2009) (“[M]ere conclusory allegations of discrimination will not defeat a summary judgment motion; a plaintiff in a discrimination case must proffer ‘concrete particulars’ to substantiate his claim.”); Whaley v. City Univ. of N.Y., 555 F.Supp.2d 381, 399 (S.D.N Y.2008) (finding no inference of discrimination because Plaintiff presented no evidence supporting discriminatory" }, { "docid": "22192872", "title": "", "text": "protected class, (2) that he was performing his duties satisfactorily, (3) that he was discharged, and (4) that his discharge occurred in circumstances giving rise to an inference of discrimination on the basis of his membership in that class. See, e.g., Quaratino v. Tiffany & Co., 71 F.3d 58, 64 (2d Cir.1995); Chambers v. TRM Copy Centers Corp., 43 F.3d 29, 37 (2d Cir.1994); Ramseur v. Chase Manhattan Bank, 865 F.2d at 464. The burden that an employment discrimination plaintiff must meet in order to defeat summary judgment at the prima facie stage is de minimis. See, e.g., Cronin v. Aetna Life Insurance Co., 46 F.3d 196, 203-04 (2d Cir.1995); Chambers v. TRM Copy Centers Corp., 43 F.3d at 37; Dister v. Continental Group, Inc., 859 F.2d 1108, 1114 (2d Cir.1988). Since the court, in deciding a motion for summary judgment, is not to resolve issues of fact, its determination with respect to the circumstances that give rise to an inference of discrimination must be a determination of whether the proffered admissible evidence shows circumstances- that would be sufficient to permit a rational finder of fact to infer a discriminatory motive. See, e.g., Cronin v. Aetna Life Insurance Co., 46 F.3d at 204; Chambers v. TRM Copy Centers Corp., 43 F.3d at 38. (Judge Jacobs is of the view that the Title VII prima facie case, which need only be de minimis in character, is not always sufficient to support an ultimate inference of discriminatory motive, and he disagrees with the foregoing sentence of text to the extent that it can be read to say so.) Though caution must be exercised in granting summary judgment where motive is genuinely in issue, see, e.g., Gallo v. Prudential Residential Services, Limited Partnership, 22 F.3d 1219, 1224 (2d Cir.1994), summary judgment remains available for the dismissal of discrimination claims in cases lacking genuine issues of material fact, see, e.g., Goenaga v. March of Dimes Birth Defects Foundation, 51 F.3d 14, 19 (2d Cir.1995); McLee v. Chrysler Corp., 38 F.3d 67, 68 (2d Cir.1994); Woroski v. Nashua Corp., 31 F.3d 105, 110 (2d Cir.1994)." }, { "docid": "11383745", "title": "", "text": "the Court said: Because writings directly supporting a claim of intentional discrimination are rarely, if ever, found among an employer’s corporate papers, affidavits and depositions must be carefully scrutinized for circumstantial proof which, if believed, would show discrimination. Gallo, 22 F.3d at 1224; see also Chambers, 43 F.3d at 37 (“Because an employer who discriminates is unlikely to leave a smoking gun attesting to discriminatory intent, a victim of discrimination is seldom able to prove his claim by direct evidence, and is usually constrained to rely on circumstantial evidence.”). The following circumstances have been considered as contributing to a permissible inference of discriminatory intent: (1) an employer’s invidious comments about others in the employee’s protected class, see, e.g., Ostrowski v. Atlantic Mut. Ins. Cos., 968 F.2d 171, 182 (2d Cir.1992); (2) more favorable treatment of employees not in the protected group, see, e.g., Washington v. Garrett, 10 F.3d 1421, 1434 (9th Cir.1993); and (3) the sequence of events leading to the plaintiffs discharge. See Chambers, 43 F.3d at 37. Because this is summary judgment, the duty of the Court is not to determine which inferences should be drawn, but rather whether there is sufficient evidence which would allow a rational trier of fact to infer discriminatory intent. See id. at 28. If the plaintiff succeeds in presenting a prima facie case of discrimination, the defendant has the burden of producing, “ ‘through the introduction of admissible evidence,’ reasons for its actions which, if believed by the trier of fact, would support a finding that unlawful discrimination was not the cause of the employment decision.” Hicks, — U.S. at -, 113 S.Ct. at 2747 (quoting Texas Dep’t. of Community Affairs v. Burdine, 450 U.S. 248, 254-55 n. 8, 101 S.Ct. 1089, 1094-95 n. 8, 67 L.Ed.2d 207 (1981)) (emphasis in original). After the defendant has articulated such nondiscriminatory reasons, the plaintiff is given the opportunity to show that defendant’s reasons were merely a pretext for discrimination. See Chambers, 43 F.3d at 38. The plaintiff must establish “both that the reason was false, and that discrimination was the real reason.” Fisher v." }, { "docid": "8250281", "title": "", "text": "from the employer’s actions, but whether the employee had any other reasonable choice but to resign in light of those actions.” Tran v. Trs. of State Colls., 355 F.3d 1263, 1270 (10th Cir.2004). In support of her constructive discharge sex discrimination claim, plaintiff relies on the same facts as those underlying her claim of retaliation for engaging in protected activity. Nueterra argues that if plaintiff has established the second element—that working conditions were so severe that she had no choice but to quit— she has not shown circumstances which give rise to an inference of discrimination based on gender. The Court agrees. Nueterra points out that Furr has no evidence that she was treated less favorably than any similarly situated man; Furr correctly responds that she need not do so. See Plotke v. White,. 405 F.3d 1092, 1099 (10th Cir.2005) (variety of circumstances can give rise to inference of discriminatory motive including actions or remarks made by decisionmakers that could be viewed as reflecting discriminatory animus and preferential treatment to employees outside protected class), Furr asserts that evidence of past sexual harassment by Drs. Poggi and Gaston, including physical touching of a sexual nature, would allow a jury to infer that Nueterra’s conduct was because of Furr’s sex. Plaintiff does not cite any cases in support of this assertion. Rather, she asserts that a jury could infer that the conduct of Drs. Poggi and Ga-ston’s in “forcing her out of Ridgewood [ ] came at least in part from the same lack of respect for Furr as a woman in a position of authority as did their sexual harassment of women.” Doc. #88 at 57. Standing alone, such conduct is not sufficient to give rise to an inference of discrimination based on gender. Moreover, Nueterra notes that it replaced Furr with a woman. The Court finds that Furr, has not presented a prima facie case of gender discrimination. Nuet-erra is therefore entitled to summary judgment on plaintiffs claim of constructive discharge sex discrimination. III. Retaliation Claims To establish a prima facie case of retaliation, plaintiff must show (1) that she" }, { "docid": "22192871", "title": "", "text": "to be tried and that the facts as to which there is no such issue warrant judgment for the moving party as a matter of law. See Fed. R.Civ.P. 56(c). The burden of showing the absence of any genuine dispute as to a material fact rests on the party seeking summary judgment. See Adickes v. S.H. Kress & Co., 398 U.S. 144, 157, 90 S.Ct. 1598, 1608, 26 L.Ed.2d 142 (1970). In assessing the record to determine whether there is a genuine issue to be tried as to any material fact, the court is required to resolve all ambiguities and draw all permissible factual inferences in favor of the party against whom summary judgment is sought. See, e.g., Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255, 106 S.Ct. 2505, 2513-14, 91 L.Ed.2d 202 (1986); Ramseur v. Chase Manhattan Bank, 865 F.2d 460, 465 (2d Cir.1989). In order to establish a prima facie case of discriminatory discharge in violation of Title VII or § 1981, a plaintiff must show (1) that he belongs to a protected class, (2) that he was performing his duties satisfactorily, (3) that he was discharged, and (4) that his discharge occurred in circumstances giving rise to an inference of discrimination on the basis of his membership in that class. See, e.g., Quaratino v. Tiffany & Co., 71 F.3d 58, 64 (2d Cir.1995); Chambers v. TRM Copy Centers Corp., 43 F.3d 29, 37 (2d Cir.1994); Ramseur v. Chase Manhattan Bank, 865 F.2d at 464. The burden that an employment discrimination plaintiff must meet in order to defeat summary judgment at the prima facie stage is de minimis. See, e.g., Cronin v. Aetna Life Insurance Co., 46 F.3d 196, 203-04 (2d Cir.1995); Chambers v. TRM Copy Centers Corp., 43 F.3d at 37; Dister v. Continental Group, Inc., 859 F.2d 1108, 1114 (2d Cir.1988). Since the court, in deciding a motion for summary judgment, is not to resolve issues of fact, its determination with respect to the circumstances that give rise to an inference of discrimination must be a determination of whether the proffered admissible evidence shows circumstances-" }, { "docid": "22400312", "title": "", "text": "minimis initial burden of showing “circumstances giving rise to an inference of discrimination,” the function of the court on a summary judgment motion is to determine whether the “proffered admissible evidence shows circumstances that would be sufficient to permit a rational finder of fact to infer a discriminatory motive. It is not the province of the summary judgment court itself to decide what inferences should be drawn.” Chambers v. TRM Copy Centers Corp., 43 F.3d at 38; see also Ramseur v. Chase Manhattan Bank, 865 F.2d at 465; Donahue v. Windsor Locks Board of Fire Commissioners, 834 F.2d at 58. A plaintiff who claims unlawful discrimination in the termination of employment may prevail notwithstanding the fact that his or her job was eliminated as part of a corporate reorganization or reduction in workforce, for “‘even during a legitimate reorganization or workforce reduction, an employer may not dismiss employees for unlawful discriminatory reasons.’ ” Maresco v. Evans Chemetics, Division of W.R. Grace & Co., 964 F.2d 106, 111 (2d Cir.1992) (quoting Hagelthorn v. Kennecott Corp., 710 F.2d at 81). A finder of fact is permitted to draw an inference of age discrimination from evidence that, in implementing such a reorganization or reduction, the employer has located new positions for younger, but not older, employees. See, e.g., Viola v. Philips Medical Systems, 42 F.3d 712, 715-16 (2d Cir.1994); Maresco v. Evans Chemetics, Division of W.R. Grace & Co., 964 F.2d at 113; Binder v. Long Island Lighting Co., 933 F.2d 187, 192 (2d Cir.1991). In rebutting a plaintiffs pri-ma facie case of discrimination stemming from a reduction in workforce, it is sometimes sufficient for the employer to present evidence of a legitimate economic basis for the reduction, together with statistical evidence that the loss of jobs within the company was not disproportionately borne by employees within the protected age group. See Woroski v. Nashua Corp., 31 F.3d at 109; see also Gallo v. Prudential Residential Services, Limited Partnership, 22 F.3d at 1226. Nonetheless, if the plaintiff has presented evidence that the discharge in fact resulted from discriminatory treatment occurring during the process" }, { "docid": "19828473", "title": "", "text": "similarly situated comparator who was accord ed more favorable treatment may be the preferred route toward an inference of discrimination for the purpose of establishing a prima facie case of disparate treatment, it is not the only route. Circumstances contributing to a permissible inference of discriminatory intent may include the employer’s continuing, after discharging the plaintiff, to seek applicants from persons of the plaintiffs qualifications to fill that position; or the employer’s criticism of the plaintiffs performance in ethnically degrading terms; or its invidious comments about others in the employee’s protected group; or the more favorable treatment of employees not in the protected group; or the sequence of events leading to the plaintiffs discharge; or the timing of the discharge .... Since the court, in deciding a motion for summary judgment, is not to resolve issues of fact, its determination of whether the circumstances “giv[e] rise to an inference” of discrimination must be a determination of whether the proffered admissible evidence shows circumstances that would be sufficient to permit a rational finder of fact to infer a discriminatory motive. It is not the province of the summary judgment court itself to decide what inferences should be drawn. Chambers v. TRM Copy Centers Corp., 43 F.3d 29, 37-38 (2d Cir.1994). Here, plaintiff contends that an inference of discrimination regarding his discharge from employment can be drawn from the following circumstances: • No one else from plaintiffs FLETC class was questioned about Mr. Abdelqader (see Pltff. Exh. 9, pp. Ill— 12); • The agents directed their questions to plaintiff on the basis of his alleged association with other Arabs (see Pltff. Exh. 4, p. 79); • The agents asked plaintiffs father-in-law about plaintiffs religion (see Pltff. Exh. 2, p. 20); • Plaintiff was initially identified by the CS as a Tunisian CBP officer in Buffalo (see id. at 48); • SA Ford questioned plaintiff about his “path to citizenship” (Pltff. Exh. 4, p. 71); • Plaintiff testified at his deposition that, during the polygraph examination, SA Witham accused plaintiff of being a terrorist (Pltff. Exh. 3, p. 61); • After his discharge," }, { "docid": "22116537", "title": "", "text": "the plaintiff anticipate and disprove an employer’s explanation that inadequate ability or performance justified the job action at issue. This principle is especially important in the context of a Rule 12(b)(6) motion, where what is at stake is whether the plaintiff gains the opportunity to demand such an explanation from the employer and to conduct discovery with respect to it, among other things. Here, Gregory alleged that CAAGC retained her services for ten years and promoted her into successively higher positions, and that Daly’s accusations of her lack of qualifications, rather than being true, were instead part of a campaign of discrimination against her. These assertions suffice to plead her qualification for the position. B. Circumstances Suggesting Sex Discrimination In this case, the same circumstances suggesting that a hostile work environment was created by Daly because of Gregory’s sex also give rise to the inference that the tangible adverse employment decisions made by him were based on Gregory’s sex. See Pitre v. Western Elec. Co., Inc., 843 F.2d 1262, 1270 (10th Cir.1988) (“Evidence of harassment ... helps create an inference of discrimination in [the employer’s] promotion and demotion practices.”). Indeed, we have long recognized that “actions or remarks made by decisionmakers that could be viewed as reflecting a discriminatory animus” may “give rise to an inference of discriminatory motive.” See Chertkova, 92 F.3d at 91 (citing Ostrowski v. Atlantic Mut. Ins. Cos., 968 F.2d 171, 182 (2d Cir.1992)). And this is no less true when those same remarks also contribute to the creation of a hostile work environment. Sex-based hostility to a woman’s continued presence in the workplace, or to particular roles within it, does not necessarily stop at the doctrinal boundary between creation of a hostile work environment and imposition of more tangible employment injuries. See Farmer Bros. Co., 31 F.3d at 898 (“Because hostility against women underlies decisions to discharge or to refuse to hire women because of their gender, evidence of sexual harassment often will be relevant to claims of gender-based employment discrimination.”) The case before us demonstrates the point. Gregory’s pleadings allege a continuous, escalating pattern" }, { "docid": "22072", "title": "", "text": "favor of the nonmoving party, summary judgment is improper.” Cronin, 46 F.3d at 203; see also LaFond, 50 F.3d at 171. In Title VII cases alleging adverse action, a plaintiff must initially establish a prima facie case of discrimination. Texas Dep’t of Community Affairs v. Burdine, 450 U.S. 248, 252-53, 101 S.Ct. 1089, 1093, 67 L.Ed.2d 207 (1981); see also St. Mary’s Honor Center v. Hicks, — U.S. -, ----, 113 S.Ct. 2742, 2746-47, 125 L.Ed.2d 407 (1993). “[T]he showing the plaintiff must make as to the elements of the prima facie case in order to defeat a motion for summary judgment is ‘de minimis ’.” Cronin, 46 F.3d at 203-04; see also Chambers, 43 F.3d at 37; Dister v. Continental Group, Inc., 859 F.2d 1108, 1114 (2d Cir.1988). “In determining whether the plaintiff has met the de minimis initial burden of showing ‘circumstances giving rise to an inference of discrimination,’ the function of the court on a summary judgment motion is to determine whether the ‘proffered admissible evidence shows circumstances that would be sufficient to permit a rational finder of fact to infer a discriminatory motive. It is not the province of the summary judgment court itself to decide what inferences should be drawn.’” Cronin, 46 F.3d at 204 (quoting Chambers, 43 F.3d at 38). Where a Title VII defendant’s intent is at issue, summary judgment is generally inappropriate. Rosen v. Thornburgh, 928 F.2d 528, 533 (2d Cir.1991). B. Sexual Harassment Claim A Title VII plaintiff seeking relief for sexual harassment may proceed under one of two theories: (1) quid pro quo; or, (2) a hostile work environment. Meritor Savs. Bank v. Vinson, 477 U.S. 57, 64-65, 106 S.Ct. 2399, 2404-05, 91 L.Ed.2d 49 (1986); Karibian v. Columbia Univ., 14 F.3d 773, 777 (2d Cir.1994), cert. denied, — U.S. -, 114 S.Ct. 2693, 129 L.Ed.2d 824 (1994); Kotcher v. Rosa & Sullivan Appliance Center, Inc., 957 F.2d 59, 62 (1992). In this action, Plaintiff has asserted that Dr. Levengood’s sexual harassment created a hostile work environment. To establish a claim for sexual harassment based upon a hostile work environment" }, { "docid": "22400311", "title": "", "text": "F.3d at 38. Though the plaintiff has the ultimate burden of proving the elements of the claim by a preponderance of the evidence, see, e.g., Hicks, — U.S. at-, 113 S.Ct. at 2749, the showing the plaintiff must make as to the elements of the prima facie case in order to defeat a motion for summary judg ment is “de minimis,” see, e.g., Chambers v. TRM Copy Centers Corp., 43 F.3d at 37; Dister v. Continental Group, Inc., 859 F.2d at 1114. To establish a prima facie case of discharge resulting from age discrimination, the plaintiff must show, through direct, statistical, or circumstantial evidence, “ ‘(1) that he was within the protected age group, (2) that he was qualified for the position, (3) that he was discharged, and (4) that the discharge occurred under circumstances giving rise to an inference of age discrimination.’ ” Woroski v. Nashua Corp., 31 F.3d 105, 108 (2d Cir.1994) (quoting Spence v. Maryland Casualty Co., 995 F.2d 1147, 1155 (2d Cir.1993)). In determining whether the plaintiff has met the de minimis initial burden of showing “circumstances giving rise to an inference of discrimination,” the function of the court on a summary judgment motion is to determine whether the “proffered admissible evidence shows circumstances that would be sufficient to permit a rational finder of fact to infer a discriminatory motive. It is not the province of the summary judgment court itself to decide what inferences should be drawn.” Chambers v. TRM Copy Centers Corp., 43 F.3d at 38; see also Ramseur v. Chase Manhattan Bank, 865 F.2d at 465; Donahue v. Windsor Locks Board of Fire Commissioners, 834 F.2d at 58. A plaintiff who claims unlawful discrimination in the termination of employment may prevail notwithstanding the fact that his or her job was eliminated as part of a corporate reorganization or reduction in workforce, for “‘even during a legitimate reorganization or workforce reduction, an employer may not dismiss employees for unlawful discriminatory reasons.’ ” Maresco v. Evans Chemetics, Division of W.R. Grace & Co., 964 F.2d 106, 111 (2d Cir.1992) (quoting Hagelthorn v. Kennecott Corp., 710" }, { "docid": "13520446", "title": "", "text": "v. Asbill, 930 F.2d 1348, 1353 (8th Cir.1991)). If the plaintiff makes this showing, Price Waterhouse mandates that the burden then shifts to the employer to show that it would have terminated the employee even without the illegitimate criterion. Id. To make the threshold showing of illegitimate criterion and shift the burden to the employer, plaintiff must present “evidence of conduct or statements by persons involved in the decisionmaking process that may be viewed as directly reflecting the alleged discriminatory attitude ... sufficient to permit the factfinder to infer that that attitude was more likely than not a motivating factor in the employer’s decision [to terminate].” Id. 997 F.2d at 449 (quoting Ostrowski v. Atlantic Mut. Ins. Cos., 968 F.2d 171, 182 (2d Cir.1992)). This evidence may be direct or circumstantial, but if it is circumstantial, it must be. “tied directly to the alleged discriminatory animus.” Ostrowski, 968 F.2d at 182. Thus, statements by nondeeisionmakers are insufficient to meet plaintiffs threshold burden, as are stray remarks in the workplace by those not involved in the decisionmaking process. Radabaugh, 997 F.2d at 449. As a matter of fact and law, Cram has not made the threshold showing required to obtain mixed motives treatment of her claim. First, Cram cites no discriminatory statements made by any employee of Carlon, worker or management. Statements implying a personal dislike or distrust of Cram herself are not the same as statements found to imply discriminatory attitudes toward women as a group. See id. (corporate planning document listing youth of managers as one of company’s strengths was evidence of age discrimination); Ostrowski, 968 F.2d at 183 (statements by a senior vice president who fired employee that two older employees should have stayed retired, that a 64-year-old employee could not be “superior,” and that there was no way a 60-year-old employee could “contribute” was evidence of age discrimination); and Beshears, 980 F.2d at 1354 (statements by president and vice president of acquiring company who made decision to fire employee that older employees have problems adapting to changes and new policies and that younger people were more adaptable" }, { "docid": "13520445", "title": "", "text": "cross-appeal, Carlon argues that the after-discovered evidence of. Cram’s employment application falsification bars her claims. On appeal, we apply the same standard as the district court to a motion for summary judgment. Kopp v. Samaritan Health Sys., Inc., 13 F.3d 264, 268-69 (8th Cir.1993). Summary judgment is appropriate when no genuine issue of material fact exists, and the moving party is entitled to judgment as a matter of law. Id. at 268. We resolve all disputed facts and draw all inferences in favor of the nonmoving party. Id. at 269. A. Cram’s Termination 1. Mixed Motives Analysis Cram argues that the district court should have applied a mixed motives analysis under Price Waterhouse v. Hopkins, 490 U.S. 228, 109 S.Ct. 1775, 104 L.Ed.2d 268 (1989), to her claims of discriminatory and retaliatory discharge. We disagree. Under Price Waterhouse, plaintiff carries the threshold burden of showing that an illegitimate criterion was a motivating factor in the employer’s decision to terminate her employment. Radabaugh v. Zip Feed Mills, Inc., 997 F.2d 444, 448 (8th Cir.1993) (citing Beshears v. Asbill, 930 F.2d 1348, 1353 (8th Cir.1991)). If the plaintiff makes this showing, Price Waterhouse mandates that the burden then shifts to the employer to show that it would have terminated the employee even without the illegitimate criterion. Id. To make the threshold showing of illegitimate criterion and shift the burden to the employer, plaintiff must present “evidence of conduct or statements by persons involved in the decisionmaking process that may be viewed as directly reflecting the alleged discriminatory attitude ... sufficient to permit the factfinder to infer that that attitude was more likely than not a motivating factor in the employer’s decision [to terminate].” Id. 997 F.2d at 449 (quoting Ostrowski v. Atlantic Mut. Ins. Cos., 968 F.2d 171, 182 (2d Cir.1992)). This evidence may be direct or circumstantial, but if it is circumstantial, it must be. “tied directly to the alleged discriminatory animus.” Ostrowski, 968 F.2d at 182. Thus, statements by nondeeisionmakers are insufficient to meet plaintiffs threshold burden, as are stray remarks in the workplace by those not involved in the" }, { "docid": "22337836", "title": "", "text": "has been denied a position must show (1) that he belongs to a protected class, (2) that he was qualified for the position, (3) that he was denied the position, and (4) that the denial occurred in circumstances giving rise to an inference of discrimination on the basis of his membership in that class. See generally Texas Department of Community Affairs v. Burdine, 450 U.S. 248, 253 & n. 6, 101 S.Ct. 1089, 1094 & n. 6, 67 L.Ed.2d 207 (1981) (“Burdine ”); Chambers v. TRM Copy Centers Corp., 43 F.3d at 37; Rosen v. Thornburgh, 928 F.2d 528, 532 (2d Cir.1991). Once the plaintiff has presented a prima facie case of discrimination, the defendant-has the burden of producing, “ ‘through the introduction of admissible evidence,’ reasons for its actions which, if believed by the trier of fact, would support a finding that unlawful discrimination was not the cause of the employment action.” St Mary’s Honor Center v. Hicks, 509 U.S. 502, 507, 113 S.Ct. 2742, 2747, 125 L.Ed.2d 407 (1993) (“Hicks ”) (quoting Burdine, 450 U.S. at 255, 101 S.Ct. at 1094) (emphasis in Hicks)). In order to defeat summary judgment after such a showing by the defendant, the plaintiffs admissible evidence must show circumstances that would be sufficient to permit a rational finder of fact to infer that the defendant’s employment decision was more likely than not based in whole or in part on discrimination. See, e.g., Fisher v. Vassar College, 114 F.3d 1332, 1339 (2d Cir.) (en banc), petition for cert. filed, 66 U.S.L.W. 3178 (U.S. Sept. 2, 1997) (No. 97-404); Cronin v. Aetna Life Insurance Co., 46 F.3d 196, 204 (2d Cir.1995); Chambers v. TRM Copy Centers Corp., 43 F.3d 29, 38 (2d Cir.1994). If the plaintiffs evidence was barely sufficient to make out a prima facie case, it may not be sufficient to establish discrimination after the defendant has proffered a neutral rationale. See Fisher v. Vassar College, 114 F.3d at 1337, 1342, 1346. When a court comes to consider, either upon defendant’s motion for summary judgment, or after a plaintiffs verdict, whether the evidence" }, { "docid": "22160004", "title": "", "text": "entitled to judgment unless she shows that the challenged employment decision was more likely than not motivated, in whole or in part, by unlawful discrimination. See St. Mary’s Honor Center v. Hicks, 509 U.S. 502, 523-24, 113 S.Ct. 2742, 125 L.Ed.2d 407 (1993); Stern v. Trustees of Columbia University, 131 F.3d 305, 312 (2d Cir.1997); Fisher v. Vassar College, 114 F.3d 1332, 1339 (2d Cir.1997) (en banc), cert. denied, 522 U.S. 1075, 118 S.Ct. 851, 139 L.Ed.2d 752 (1998). “The ultimate burden of persuading the trier of fact that the defendant intentionally discriminated against the plaintiff remains at all times with the plaintiff.” Texas Department of Community Affairs v. Burdine, 450 U.S. at 253, 101 S.Ct. 1089. “While we do not second-guess an employer’s hiring standards, the reasons for its employment decision, including its alleged reliance on [nondiscriminatory] standards, are subject to scrutiny under Title VII....” Stern v. Trustees of Columbia University, 131 F.3d at 313. Circumstances from which invidious discrimination may be inferred include preferential treatment given to employees outside the protected class. See, e.g., Chertkova v. Connecticut General Life Insurance Co., 92 F.3d 81, 91 (2d Cir.1996); Cronin v. Aetna Life Insurance Co., 46 F.3d 196, 204 (2d Cir.1995); Washington v. Garrett, 10 F.3d 1421, 1434 (9th Cir.1993). In deciding a motion for summary judgment, the district court is not to resolve issues of fact but only to determine whether there is a genuine triable issue as to a material fact. In making that determination, the court is required to resolve all ambiguities, and to credit all factual inferences that could rationally be drawn, in favor of the party against whom summary judgment is sought. See, e.g., Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986); Matsushita Electric Industrial Co. v. Zenith Radio Corp., 475 U.S. 574, 587, 106 S.Ct. 1348, 89 L.Ed.2d 538 (1986); Ramseur v. Chase Manhattan Bank, 865 F.2d 460, 465 (2d Cir.1989); Donahue v. Windsor Locks Board of Fire Commissioners, 834 F.2d 54, 57 (2d Cir.1987). It is not the province of the court itself to decide" }, { "docid": "11383744", "title": "", "text": "F.3d 196, 203 (2d Cir.1995); Chambers, 43 F.3d at 37. In order to defeat a motion for summary judgment, the showing the plaintiff must make as to the elements of a prima facie case is “de minimis.” See, e.g., Cronin, 46 F.3d at 196; Chambers, 43 F.3d at 37. Through direct, statistical, or circumstantial evidence, the plaintiff must show: (1) that she belongs to a protected class; (2) that she was performing her duties satisfactorily; (3) that she was discharged; and (4) that her discharge occurred in circumstances giving rise to an inference of discrimination based on her membership in the protected class. See Chambers, 43 F.3d at 37; Rosen v. Thornburgh, 928 F.2d 528, 532 (2d Cir.1991) (religious discrimination in violation of Title VII). It is unusual to find direct evidence of an employer’s intent to discriminate. Rather, most cases go forward based on circumstantial evidence. The Second Circuit has used this realization to direct trial courts to tread cautiously when considering an employer’s motion for summary judgment in a discrimination ease. In Gallo, the Court said: Because writings directly supporting a claim of intentional discrimination are rarely, if ever, found among an employer’s corporate papers, affidavits and depositions must be carefully scrutinized for circumstantial proof which, if believed, would show discrimination. Gallo, 22 F.3d at 1224; see also Chambers, 43 F.3d at 37 (“Because an employer who discriminates is unlikely to leave a smoking gun attesting to discriminatory intent, a victim of discrimination is seldom able to prove his claim by direct evidence, and is usually constrained to rely on circumstantial evidence.”). The following circumstances have been considered as contributing to a permissible inference of discriminatory intent: (1) an employer’s invidious comments about others in the employee’s protected class, see, e.g., Ostrowski v. Atlantic Mut. Ins. Cos., 968 F.2d 171, 182 (2d Cir.1992); (2) more favorable treatment of employees not in the protected group, see, e.g., Washington v. Garrett, 10 F.3d 1421, 1434 (9th Cir.1993); and (3) the sequence of events leading to the plaintiffs discharge. See Chambers, 43 F.3d at 37. Because this is summary judgment, the" }, { "docid": "9480063", "title": "", "text": "treatment under the pretext theory, Plaintiffs complaint, if read to allege a mixed motive theory of discrimination must also fail. Under the mixed motive theory of employment discrimination, a plaintiff “must initially show more than the ‘not onerous’ McDonnell Douglas-Burdine factors.” Tyler v. Bethlehem Steel Corp., 958 F.2d 1176, 1181 (2d Cir.1992). “[T]he plaintiff must initially show that an impermissible criterion was in fact a ‘motivating’ or ‘substantial’ factor in the employment decision.” Raskin v. Wyatt Co., 125 F.3d 55, 60 (2d Cir.1997). Such a showing could be made through the use of, for example, “nonstatistical evidence ... directly tied to the forbidden animus.” such as “policy documents or statements of a person involved in the decision-making process that reflect a discriminatory or retaliatory animus ...” Ostrowski v. Atlantic Mut. Ins. Cos., 968 F.2d 171, 182 (2d Cir.1992). This burden has been described as requiring the plaintiff to “produce a ‘smoking gun’ or at least a ‘thick cloud of smoke’ to support his allegations of discriminatory treatment.” Raskin, 125 F.3d at 61 (citing Fields v. New York State Office of Mental Retardation and Developmental Disabilities, 115 F.3d 116, 124 (2d Cir.1997)). However, a plaintiff would not be entitled to a mixed motive burden shifting instruction based on (1) purely statistical evidence; (2) mere evidence of the plaintiffs qualification for, and the existence of, a certain position; or (3) “stray” remarks in the workplace by persons not involved in the relevant decisionmaking process. Ostrowski, 968 F.2d at 182. Once the plaintiff has made the threshold showing, only then does “the burden shift to the employer to prove that it would have made the same decision absent the discriminatory factor.” Raskin, 125 F.3d at 60. Here, the Plaintiffs ease is devoid of a “smoking gun” of forbidden animus, and is reliant upon the type of proof specifically delineated as insufficient to support a mixed motive claim. Accordingly, having failed to establish the necessary elements of a prima facie case, Plaintiffs case will not proceed under a mixed motive theory of recovery. V DID PLAINTIFF ESTABLISH A VALID CLAIM OF DISPARATE TREATMENT UNDER" }, { "docid": "22160005", "title": "", "text": "e.g., Chertkova v. Connecticut General Life Insurance Co., 92 F.3d 81, 91 (2d Cir.1996); Cronin v. Aetna Life Insurance Co., 46 F.3d 196, 204 (2d Cir.1995); Washington v. Garrett, 10 F.3d 1421, 1434 (9th Cir.1993). In deciding a motion for summary judgment, the district court is not to resolve issues of fact but only to determine whether there is a genuine triable issue as to a material fact. In making that determination, the court is required to resolve all ambiguities, and to credit all factual inferences that could rationally be drawn, in favor of the party against whom summary judgment is sought. See, e.g., Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986); Matsushita Electric Industrial Co. v. Zenith Radio Corp., 475 U.S. 574, 587, 106 S.Ct. 1348, 89 L.Ed.2d 538 (1986); Ramseur v. Chase Manhattan Bank, 865 F.2d 460, 465 (2d Cir.1989); Donahue v. Windsor Locks Board of Fire Commissioners, 834 F.2d 54, 57 (2d Cir.1987). It is not the province of the court itself to decide what inferences should be drawn, see, e.g., Cronin v. Aetna Life Insurance Co., 46 F.3d at 204; Chambers v. TRM Copy Centers Corp., 43 F.3d at 38; if there is any evidence in the record from any source from which a reasonable inference could be drawn in favor of the nonmoving party, summary judgment is improper, see, e.g., Stern v. Trustees of Columbia University, 131 F.3d at 312; Brady v. Town of Colchester, 863 F.2d 205, 210 (2d Cir.1988). Guided by these principles, we review a district court’s grant of summary judgment de novo. See, e.g., Kerzer v. Kingly Manufacturing, 156 F.3d 396, 400 (2d Cir.1998); Shumway v. United Parcel Service, Inc., 118 F.3d 60, 63 (2d Cir.1997). In determining the appropriateness of summary judgment, the court should not consider the record solely in piecemeal fashion, giving credence to innocent explanations for individual strands of evidence, for a jury, in assessing whether there was impermissible discrimination and whether the defendant’s proffered explanation is a pretext for such discrimination, would be entitled to view the evidence" }, { "docid": "22192873", "title": "", "text": "that would be sufficient to permit a rational finder of fact to infer a discriminatory motive. See, e.g., Cronin v. Aetna Life Insurance Co., 46 F.3d at 204; Chambers v. TRM Copy Centers Corp., 43 F.3d at 38. (Judge Jacobs is of the view that the Title VII prima facie case, which need only be de minimis in character, is not always sufficient to support an ultimate inference of discriminatory motive, and he disagrees with the foregoing sentence of text to the extent that it can be read to say so.) Though caution must be exercised in granting summary judgment where motive is genuinely in issue, see, e.g., Gallo v. Prudential Residential Services, Limited Partnership, 22 F.3d 1219, 1224 (2d Cir.1994), summary judgment remains available for the dismissal of discrimination claims in cases lacking genuine issues of material fact, see, e.g., Goenaga v. March of Dimes Birth Defects Foundation, 51 F.3d 14, 19 (2d Cir.1995); McLee v. Chrysler Corp., 38 F.3d 67, 68 (2d Cir.1994); Woroski v. Nashua Corp., 31 F.3d 105, 110 (2d Cir.1994). In the present case, the district court properly found thát McLee had failed to meet even his de minimis burden with respect to at least two of the elements of his claim, to wit, satisfactory performance, and circumstances that could permit an inference of discriminatory motivation. To begin with, the record, including McLee’s own admissions and assertions, establishes indisputably that, for race-neutral reasons, McLee’s performance was not satisfactory. Our review of the record shows that in his 120-day review in early June, McLee was found to be deficient in 13 of the 22 areas in which he was rated. The deficiencies included tardiness in arriving at work, failure to submit audits and other paperwork on time, inaccuracy in his workload management data, inadequate written and oral communication, and inability to solve operational problems. When invited by his supervisors to comment, McLee did not dispute even half of the negative evaluations. In his deposition, McLee stated that he had disputed only those evaluations that he thought were not fair; thus, there is no genuine dispute that," }, { "docid": "22391654", "title": "", "text": "may include the employer’s continuing, after discharging the plaintiff, to seek applicants from persons of the plaintiffs qualifications to fill that position, see, e.g., Meiri v. Dacon, 759 F.2d 989, 995-96 (2d Cir.), cert. denied, 474 U.S. 829, 106 S.Ct. 91, 88 L.Ed.2d 74 (1985); or the employer’s criticism of the plaintiffs performance in ethnically degrading terms, see, e.g., Lopez v. S.B. Thomas, 831 F.2d at 1189; or its invidious comments about others in the employee’s protected group, see, e.g., Ostrowski v. Atlantic Mutual Insurance Companies, 968 F.2d 171, 182 (2d Cir.1992); or the more favorable treatment of employees not in the protected group, see, e.g., Washington v. Garrett, 10 F.3d 1421, 1434 (9th Cir.1993) (in a supposed “reduction in force,” the plaintiff, a black, was the only person to lose her job); or the sequence of events leading to the plaintiffs discharge, see, e.g., Ostrowski v. Atlantic Mutual Insurance Companies, 968 F.2d at 183; or the timing of the discharge, see, e.g., Dister v. Continental Group, Inc., 859 F.2d at 1115. The burden of pro.of that must be met to permit an employment-discrimination plaintiff to survive a summary judgment motion “at the prima facie stage is de minim[ijs.” Id. at 1114 (affirming summary judgment, but rejecting district court’s rationale that prima facie ease had not been established). Since the court, in deciding a motion for summary judgment, is not to resolve issues of fact, its determination of whether the circumstances “giv[e] rise to an inference” of discrimination must be a determination of whether the proffered^ admissible evidence shows circumstances that would be sufficient to permit a rational finder of fact to infer a discrimmatóiy^motivé. It is not the province of the summary judgment court itself to decide what inferences should be drawn. Once the plaintiff has presented a prima facie case of discrimination, the defendant has the burden of producing, “ ‘through the introduction of admissible evidence,’ reasons for its actions which, if believed by the trier of fact, would support a finding that unlawful discrimination was not the cause of the employment action.” St. Mary’s Honor Center v." } ]