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266 F.3d 684 (7th Cir. 2001)
Eugene Sparing, Plaintiff-Appellant,v.Village of Olympia Fields and Officer James Keith, Defendants-Appellees.
No. 00-1021
In the United States Court of Appeals For the Seventh Circuit
Argued September 18, 2000Decided September 19, 2001
Appeal from the United States District Court for the Northern District of Illinois, Eastern Division. No. 97 C 5479--Charles R. Norgle, Sr., Judge.
Before Easterbrook, Ripple, and Williams, Circuit Judges.
Williams, Circuit Judge.
1
Eugene Sparing sued Officer James Keith for alleged Fourth Amendment violations, stemming from his arrest in his home. He also sued Keith and the Village of Olympia Fields under the Illinois tort of malicious prosecution. The Village and Keith moved for summary judgment, with Keith asserting a defense of qualified immunity. Relying on our decision in United States v. Berkowitz, 927 F.2d 1376 (7th Cir. 1991), the district court rejected Sparing's Fourth Amendment warrant claim. In addition, the district court found probable cause for Sparing's arrest on a closely related offense and rejected Sparing's Fourth Amendment probable cause and state law malicious prosecution claims. Sparing appeals, and we affirm.
I. BACKGROUND
A. The Facts
2
Sparing's arrest arose out of an alleged scheme organized by a friend named David Smith. Smith filed a criminal report with the Olympia Fields Police Department on July 23, 1996. In his complaint, Smith alleged that he fired Tom Sanfratello on May 31, 1996, and that Sanfratello later stole files from the office and forged two checks made out to himself. Smith also stated that on the morning of July 9, 1996, Sparing saw Sanfratello in the office. According to Smith, Sparing knocked on the window to get Sanfratello's attention, but Sanfratello did not respond.
3
In mid-August, Officer Keith called Sparing to confirm his part of Smith's story. Sparing did. Keith next interviewed Sanfratello, who disputed the story in several respects but admitted to signing the checks because he was a signatory on the account and was owed money by Smith. He also admitted to taking files, but claimed to have returned them to Smith. Sanfratello also told Keith that he previously had a conversation with Sparing's secretary, Linda Parker, who told him that she had a facsimile sent by Smith to Sparing and that she believed that they were "up to no good." Sanfratello provided a copy of that fax to Keith; it read:
Gene
4
July 9, 1996 at 2:45 am observed Tom at office copying files from computer and photocopying. You knocked on windows and Tom ignored you. You left and went home.
Thanks
David
5
The next day, Keith had a telephone conversation with Parker. According to Keith, Parker said that after receiving the fax from Smith, she made a copy and gave the original to Sparing, who replied, "Dave wants me to perjure myself."
6
The following day, Parker telephoned Keith, recounting to him an encounter she recently had with Sparing. She said that Sparing had contacted her to have lunch and that when he picked her up he asked with whom she had been talking that week. Parker initially feigned ignorance, but Sparing persisted. He drove her by the Olympia Fields Police Department to "refresh [her] memory," and again asked with whom she had been talking, this time informing her that a friend of Sanfratello had already put him in the know. She then admitted to talking with the police about the fax. Sparing, according to Parker, replied, "I thought you were my friend. How could you do this to me? Don't you know that this could lead to criminal charges against me?" Parker told Keith that Sparing then took her back home, told her to get out of the car and that she was fired. He also told Parker that he was evicting her from the house she was renting from him and taking back his van on which she was making payments. Later that day, Keith spoke with Parker again, and she told him the same story.
7
After the meeting with Parker, Keith went to Sparing's house and knocked on the door. Sparing answered the door, and Keith asked that he identify himself, which he did. At that moment, Sparing was still standing inside his home behind his closed screen door, and Keith was standing outside. Keith then advised Sparing that he was under arrest.1 To which, Sparing inquired whether he had a warrant. Keith stated that he did not, but rather that he had probable cause. Sparing asked whether he could place something down, then turned, and walked away from the screen door further into his home. Keith entered the residence, taking several steps inside. Sparing came back to Keith, and they both left the house.
B. District Court Proceeding
8
Sparing filed a lawsuit against the Village, Keith, and Officer William Bendar, alleging violations of federal civil rights law as well as Illinois state law.2 Sparing alleged in his complaint that his arrest was in violation of the Fourth Amendment, and he sought damages under 42 U.S.C. sec. 1983. Specifically, Sparing complained that Keith arrested him in his home without a warrant and without probable cause. He also alleged that the Village and Keith maliciously prosecuted him in violation of Illinois tort law.
9
The Village and Keith moved for summary judgment. Keith asserted an affirmative defense of qualified immunity. The district court held that Sparing had failed to demonstrate a constitutional violation and that Keith was entitled to qualified immunity. The district court concluded that the arrest did not violate the Fourth Amendment because Sparing acquiesced to Keith's entry to complete an arrest announced outside his home, and because probable cause existed for an offense closely related to the one for which Sparing was arrested. Having found probable cause for the arrest, the district court also concluded that Sparing could not meet the elements of malicious prosecution. The district court then entered judgment in favor of the Village and Keith. This appeal followed.
II. ANALYSIS
A. Fourth Amendment and Section 1983
10
Sparing alleges two Fourth Amendment violations pursuant to section 1983 against Officer Keith. He claims that Keith unlawfully entered his home without a warrant to effectuate an arrest and unlawfully arrested him without probable cause. Both claims are subject to a defense of qualified immunity. We begin our analysis with the standard for qualified immunity, and then we proceed to apply that standard to each claim.
11
1. Qualified Immunity.
12
Public officials performing discretionary functions are generally entitled to qualified immunity and 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." Wilson v. Layne, 526 U.S. 603, 609 (1999) (internal quotation marks omitted) (quoting Harlow v. Fitzgerald, 457 U.S. 800, 818 (1982)). Qualified immunity provides "ample protection to all but the plainly incompetent or those who knowingly violate the law." Malley v. Briggs, 475 U.S. 335, 341 (1986). They are accorded this ample protection not as a license to violate constitutional rights without recourse nor as an excuse to turn a blind eye to the requirements of the law, but to preserve the vigilance of those individuals vested with the obligation to protect the public interest in the face of ambiguity. See Hunter v. Bryant, 502 U.S. 224, 228-29 (1991); see also Malinowski v. DeLuca, 177 F.3d 623, 626-27 (7th Cir. 1999) (articulating policy reasons behind the immunity).
13
When presented with a defense of qualified immunity, courts must (1) determine whether the plaintiff has alleged the deprivation of an actual constitutional right and (2) if so, determine whether that right was clearly established at the time of the alleged violation. Saucier v. Katz, 121 S. Ct. 2151, 2156 (2001); Layne, 526 U.S. at 609; Spiegel v. Cortese, 196 F.3d 717, 723 (7th Cir. 1999). Although qualified immunity is an affirmative defense, the burden of defeating an assertion of qualified immunity rests with the plaintiff. Spiegel, 196 F.3d at 723; Clash v. Beatty, 77 F.3d 1045, 1047-48 (7th Cir. 1996).
14
In this case, the district court, in granting summary judgment, found that Sparing could not establish a deprivation of an actual constitutional right and therefore did not fully address the second part of the standard for qualified immunity. We review the district court's judgment on the basis of qualified immunity de novo. Jones v. Watson, 106 F.3d 774, 777 (7th Cir. 1997). In determining whether a genuine issue of material fact exists, we construe all facts in the light most favorable to the non-moving party, and draw all reasonable and justifiable inferences in favor of that party. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255 (1986).
15
2. Warrantless arrest in the home--the significance of Payton, Watson, Santana, and Berkowitz.
16
Sparing argues that Keith entered his home without a warrant or his consent to effectuate an arrest, which constituted an unreasonable search in violation of the Fourth Amendment and in particular the Supreme Court's holding in Payton v. New York, 445 U.S. 573 (1980). Keith responds that Sparing acquiesced to his slight entry to complete the arrest after he announced it outside Sparing's home, which is consistent with Payton and indistinguishable from our holding in United States v. Berkowitz, 927 F.2d 1376 (7th Cir. 1991). For the reasons stated below, we believe that the entry into Sparing's home without a warrant to effectuate or complete the arrest (although with probable cause) was unreasonable and therefore a violation of the Fourth Amendment.
17
Two Fourth Amendment principles set the backdrop against which we analyze this case. First, police officers may constitutionally arrest an individual in a public place (e.g., outside) without a warrant, if they have probable cause. United States v. Watson, 423 U.S. 411, 417-24 (1976). Second, police officers may not constitutionally enter a home without a warrant to effectuate an arrest, absent consent or exigent circumstances, even if they have probable cause. Payton, 445 U.S. at 585-90. What distinguishes these two cases is that the latter involves an entry (i.e., a search) into the home, a place where individuals enjoy an especially heightened Fourth Amendment protection. See id. at 585 ("[P]hysical entry of the home is the chief evil against which the wording of the Fourth Amendment is directed." (internal quotation marks omitted) (quoting United States v. United States District Court, 407 U.S. 297, 313 (1972)). The former does not. A search of the home without a warrant is a well- settled violation of the Fourth Amendment, and the Supreme Court in Payton simply made clear that it is no less so when the search is conducted in order to seize (i.e., by an arrest) a person, rather than property. See id. at 585-88.
18
At first blush, then, the lines appear clear. Intrusion into the home without a warrant "by even a fraction of an inch," is too much. Kyllo v. United States, 121 S. Ct. 2038, 2045 (2001) (internal quotation marks omitted) (quoting Silver man v. United States, 365 U.S. 505, 512 (1961)). The lines are not so clear, however, because exactly where outside ends and where the home begins is not a point immediately obvious. Splitting fractions of an inch can be a very treacherous endeavor, producing arbitrary results. But we need not pull out our rulers and begin to measure. Under the Fourth Amendment, the point must be identified by inquiry into reasonable expectations of privacy. United States v. Santana, 427 U.S. 38, 42 (1976); Katz v. United States, 389 U.S. 347 (1967).
19
The Supreme Court has already considered the question of dividing outside from inside when the home is involved, although not completely resolving the question, in United States v. Santana, supra. In Santana, the Court held that an individual voluntarily standing in the threshold of her home (i.e., in the middle of an open doorway) is outside rather than inside the home for purposes of the Fourth Amendment. Santana, 427 U.S. at 42. The Court reasoned that an individual voluntarily standing in an open doorway has knowingly exposed herself to "public view, speech, hearing, and touch" just as if she were standing outside, in a public place. Id. In those places, and thus in an open doorway, under those circumstances, the Watson rule, rather than the Payton rule, applies. Id.; see also Katz, 389 U.S. at 351 ("What a person knowingly exposes to the public, even in his own home or office, is not a subject of Fourth Amendment protection.").
20
But what if the individual is not voluntarily standing in an open doorway, but answers a knock at the door, standing by a "fraction of an inch" behind an open doorway? We still apply Santana-type "public view, speech, hearing, and touch" analysis to aid in the determination of whether a reasonable expectation of privacy exists. To answer that Payton established "a firm line at the entrance to the house," Payton, 445 U.S. at 590, is to ignore an unmistakable circularity- -the question is where is the "entrance to the house," which in these circumstances must be answered by consideration of reasonable expectations of privacy.
21
We addressed precisely this question in United States v. Berkowitz, supra, acknowledging that when an individual voluntarily stands behind an open doorway--fractions of an inch "inside the home"--ordinarily, for purposes of the Fourth Amendment, she stands outside, in a public place. See Berkowitz, 927 F.2d at 1386-87; cf. Santana, 427 U.S. at 42. But, we said, the inquiry does not end there. We also recognized that a person does not surrender reasonable expectations of privacy in the home by simply answering a knock at the door, and we therefore declined to apply Santana in toto.3 Berkowitz, 927 F.2d at 1387. Instead, we held that an individual retains the right to be free from physical intrusion into the home by police officers without a warrant seeking to effectuate an arrest, but the right could be waived in that circumstance by acquiescence (rather than consent) to a slight entry. We stated our holding as follows: if the police go to an individual's home without a warrant, knock on the door, announce from outside the home that the individual is under arrest when she opens the door to answer, and the individual acquiesces to a slight entry to complete the arrest,4 the entry is reasonable under the Fourth Amendment and consistent with Payton. Id.
22
Berkowitz, however, did not overturn longstanding Fourth Amendment precedent that absent exigent circumstances, police without a warrant must obtain an individual's valid and voluntary consent before entering the home to effectuate or complete an arrest. See, e.g., Steagald v. United States, 451 U.S. 204, 214 n.7 (1981); Reardon v. Wroan, 811 F.2d 1025, 1027-28 (7th Cir. 1987). As we have said, Berkowitz only endorsed as reasonable under the Fourth Amendment, a slight entry into the home to complete an arrest announced outside the home when the individual acquiesced to the entry while standing fractions of an inch behind the threshold of her home with the door open. See Berkowitz, 927 F.2d at 1386-87.
23
This case does not fit within the thin middle ground established by Berkowitz, but is a case where Payton applies. What puts this case beyond Berkowitz--as well as Santana and Watson--and is most critical here, is that Sparing stood inside his home, behind his closed screen door. He was neither in a public place, e.g., outside (Watson),5 voluntarily in an open doorway, also a public place (Santana), or answering a knock at the door and standing fractions of an inch behind an open doorway (Berkowitz). Because we are guided not by the "common law of property," Santana, 427 U.S. at 42, but by the Fourth Amendment privacy interest as identified in Katz, this difference is significant. Sparing was not exposed to "public view, speech, hearing, and touch" as if he were standing outside, in a public place (voluntarily or otherwise). As a consequence, we apply Payton--Sparing did not surrender any reasonable expectations of privacy in his home. Without a warrant, this arrest could only be completed if Sparing opened his screen door, and stepped outside of his home or acquiesced to a slight entry to complete the arrest. For Keith to enter the home without a warrant, as he did in this case, he first needed Sparing's consent.
24
We need not question the validity and voluntariness of consent in this case, because no evidence of consent is present. Because Sparing did not consent to Keith's entry into his home, Keith's entry without a warrant to effectuate or complete the arrest in Sparing's home was unreasonable and a violation of the Fourth Amendment. We pause here, momentarily, to reiterate what seems to have been lost from our discussion in Berkowitz: there was no reason in this case not to get a warrant and every reason to obtain one. See Berkowitz, 927 F.2d at 1388 ("Obtaining a warrant in the first place would have prevented these potential problems, to say nothing of the time it would have saved at trial and on appeal litigating the legality of [the] arrest."). When time permits, officers who elect not to obtain a warrant unnecessarily risk the type of constitutional violation involved in this case.
25
Although Sparing has demonstrated a constitutional violation, he cannot show that the violation was clearly established under the second part of the standard for qualified immunity. Indeed, we are in agreement with the First Circuit in concluding that the law surrounding Fourth Amendment "doorway arrest" questions, particularly on the facts of this case, was not sufficiently settled or defined at the time of the arrest to defeat qualified immunity in this case. See generally Joyce v. Town of Tewksbury, 112 F.3d 19, 22 (1st Cir. 1997) (en banc). Thus, Keith was appropriately entitled to summary judgment for Sparing's Fourth Amendment warrant claim under section 1983.6
26
3. Arrest without probable cause.
27
Sparing next argues that the district court employed a "fanciful view of Illinois law and a warped reading of the record" in concluding that his participation in Smith's scheme could have provided Keith with probable cause to believe that he had committed the offense of disorderly conduct. Therefore, he argues, the district court erred in granting summary judgment to Keith on his Fourth Amendment probable cause claim.7 Sparing contends that the section of the Illinois disorderly conduct statute under which the district court found probable cause for the arrest requires a written report and that the report must falsely identify an offense, not simply acts that may be part of an offense.
The disorderly conduct statute provides:
28
(a) A person commits disorderly conduct when he knowingly:
29
. . . .
30
(4) Transmits or causes to be transmitted in any manner to any peace officer, public officer or public employee a report to the effect that an offense will be committed, is being committed, or has been committed, knowing at the time of such transmission that there is no reasonable ground for believing that such an offense will be committed, is being committed, or has been committed[.]
31
720 Ill. Comp. Stat. 5/26-1(a)(4). Illinois case law, in particular People v. Stevens, 352 N.E.2d 352 (Ill. App. Ct. 1976), establishes that either written or oral reports may satisfy the element of a "report" in the statute. Id. at 354.
32
Sparing attempts to distinguish Stevens, while at the same time advancing his second argument, by stating that the defendant in Stevens reported a "robbery." He argues that he only relayed information to Keith about what he had seen and never stated that an "offense" had been committed. This is a fanciful interpretation of both Stevens and the disorderly conduct statute. The plain language of the statute is not limited to false reports of an offense, as Sparing argues, but covers false reports "to the effect that an offense . . . has been committed." 720 Ill. Comp. Stat. 5/26- 1(a)(4). When Sparing told Keith that he had seen Sanfratello in the office copying files from a computer and photocopying, it was to corroborate Smith's accusation of theft and trespass. Clearly, the report had the effect of falsely conveying to a police officer that an offense had been committed.
33
Thus, Keith was also appropriately entitled to summary judgment for Sparing's Fourth Amendment probable cause claim under section 1983.
B. Malicious Prosecution
34
Sparing argues that for the reasons articulated in his probable cause discussion addressed above, the district court wrongly granted summary judgment to the Village and Keith on his state law malicious prosecution claim. Because we have disposed of his arguments on probable cause, Sparing is left empty- handed. However, we will address this issue because we uphold summary judgment on the second ground offered by the district court. We review this claim, like the others, de novo.
35
We are not convinced, as was the district court, that because probable cause existed for the offense of disorderly conduct, Sparing could not maintain a state law malicious prosecution cause of action for resisting or obstructing a police officer--the offense actually charged. We are aware of no Illinois case that adopts the closely related offense rule, which we apply in qualified immunity cases, in state law malicious prosecution tort cases. Therefore, we do not rest our opinion on this ground.
36
However, Illinois law does require that the criminal proceeding upon which a malicious prosecution action is predicated was terminated in a manner indicative of the innocence of the accused. Joiner v. Benton Cmty. Bank, 411 N.E.2d 229, 232 (Ill. 1980). The record is silent on this issue, except for Keith's assertion in his deposition that the case was dismissed for lack of a warrant (hardly indicative of Sparing's innocence). At summary judgment, Sparing had an obligation to come forward with evidence to support his claim and could not merely rest on the allegations in his complaint. See Fed. R. Civ. P. 56(e). He failed to do so. Therefore the Village and Keith were appropriately entitled to summary judgment for Sparing's state law malicious prosecution claim.8
III. CONCLUSION
37
For the foregoing reasons, the judgment of the district court is Affirmed.
Notes:
1
In his deposition, Keith indicated that he ar- rested Sparing for obstructing a police officer, although he also had in mind the offense of disorderly conduct.
2
Sparing voluntarily dismissed his claim against Officer Bendar.
3
Other courts have reached similar conclusions. See United States v. McCraw, 920 F.2d 224, 228-30 (4th Cir. 1990); Duncan v. Storie, 869 F.2d 1100, 1103 (8th Cir. 1989); United States v. Herrold, 772 F. Supp. 1483, 1489-90 (M.D. Pa. 1991). But see United States v. Carrion, 809 F.2d 1120, 1127-28 (5th Cir. 1987); United States v. Whit- ten, 706 F.2d 1000, 1015 (9th Cir. 1983).
4
Berkowitz actually states this proposition using the words "and the person acquiesces to the arrest." 927 F.2d at 1386 (emphasis added). The issue, however, is whether the entry is consistent with the Fourth Amendment, not the arrest (which is lawful because supported by probable cause). Despite the language used in that particular sentence, we believe the holding in Berkowitz identified the entry as the constitutional violation, not the arrest, and therefore we use the former, not the latter.
5
Watson actually was arrested in a restaurant.
6
Sparing presents an additional Fourth Amendment argument based on the Illinois resisting arrest statute: Sparing argues that he was required by Illinois law to acquiesce to Keith's entry to complete the arrest, and if he resisted by not acquiescing to the entry, he was subject to additional charges for resisting arrest. He argues that if he acquiesced, the Illinois statute compelled his acquiescence and as a consequence that acquiescence is constitutionally defective. Having decided that Berkowitz does not apply, we need not consider this issue.
7
The district court did not find probable cause for the charge of obstructing a police officer--the offense for which Sparing was arrested and charged--because Sparing's conduct could not be considered physical obstruction, which is a necessary element of the offense. See People v. Hilgenberg, 585 N.E.2d 180, 183 (Ill. App. Ct. 1991). But the district court continued to consider whether probable cause existed for disorderly conduct because "probable cause need not have existed for the charge for which the plaintiff was arrested, so long as probable cause existed for arrest on a closely related charge." Biddle v. Martin, 992 F.2d 673, 676 (7th Cir. 1993).
8
We do not reach the issues of damages raised on this appeal, because we affirm the district court's grant of summary judgment in favor of the Village and Keith on all counts alleged in the complaint.
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56 F.3d 69NOTICE: Eighth Circuit Rule 28A(k) governs citation of unpublished opinions and provides that no party may cite an opinion not intended for publication unless the cases are related by identity between the parties or the causes of action.
John SMITH, Appellant,v.UNITED STATES of America, Appellee.
No. 94-2442
United States Court of Appeals,Eighth Circuit.
Submitted: May 18, 1995Filed: May 25, 1995
Before BOWMAN, WOLLMAN, and MORRIS SHEPPARD ARNOLD, Circuit Judges.
PER CURIAM.
1
John Smith, a federal inmate who has been given federal witness security protection, brought a "Petition for Writ of Habeas Corpus" against the United States. He claimed that his confinement in a special management unit at the Federal Correctional Institution in Sandstone, Minnesota, violated his constitutional rights. The district court1 dismissed the action, and he appeals.
2
After careful review of the record and the parties' briefs, we conclude that the district court properly denied relief. Accordingly, we affirm. See 8th Cir. R. 47B. We deny Smith's motion to change the case title to reflect his true name, and also deny his motion for leave to amend the record.
1
The Honorable Diana E. Murphy, then Chief Judge, United States District Court for the District of Minnesota, now United States Circuit Judge, adopting the report and recommendation of the Honorable Raymond L. Erickson, United States Magistrate Judge for the District of Minnesota
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HonorableFred V. Meredith
County Attorney
xauupmul
Couaty
Kaufman,Texas
Dear S$rt opinion lo. O-7406
Rer Whetherdriver of pick-up truck
oa highway is requiredto have
oomsroial opemtor' s license;
and relatedquestion.
This is in reply to your letter of Septenbs4, 1946, requestingour
opinionon the questionspresentedtherein,based upon the followingstate
of facts.
A ma living in Terrell,Texas, borroweda friend'spick-up (&-ton
truck) and drove it to Dallas to a show. On the way home he was stoppedas
he passed throughthe City of Formy by the officers,and tm complaintswcrc
filed againsthim. He was chargedwith drivinga.onmneroialvehiolewithout
having a cmmroial operator'slioense,and in additicm,was chargedwith
filure to hams with the vehicle a oopy of his lioeasereceipt. He had an
operator'slicensemdwas not using the truck for oomseroialpurposes.
For the sake of clarity,we wFl1 m-phrase your quertims.to state
the problemswhich seem to be presentedby the fasts given md your brief
thereon, and answer each in turn:
1. ,Isa personwho is operatinga pick-uptruck on the highways of
this State as a passengervehiole for his own use only,and not for hire,
requiredto haw a oommeroialoperator'slicensewhile so operatingsuch
truck?
Article 6667b,Sec. Z(a), Vamonls Annotatedcivil Statutesof Texas,
provides8
"Iv0person,except those hereinafterexpresslyexempted,shall drive
any motor vehicle upon a highway in this State unless such person
has a valid license as an operator,a ccmmeroialoperator,or a
chauffeurunder the provisionsof this Act.”
Sectionl(n) of said Art3010 definesa 'cmmroial operator"as
"every personwho is the driver of a motor vehicledesignedor used-for
%n. Frod V. Slersdith
.-Page 2 (o-7408)
the transportBtionof property,includingall vehiclesUsed for delivery
purposes,while said vehicleis being used for ocmmeroialor delivery
purposes." (emphasisours) 'Iheunderlinedphrasequalifiesand limits the
statutory.definition of "commercialoperator,"and the evidentintent of
the stathte is to requirethe operatofof an$motor vehicleto be 1loen:;sd
as a commercialoperatoronly wham such vehicle is actuallybeing used at
that time for the purposeof transportingproperty.
70 thereforeanswerthe first questionin the negative.
2. Is the operatorof a pick-up truck upon the highwaysof this
State requiredto carry in such truck or on his perso&,at all times, a
copy of the currentregistrationlicense receiptissuedfor said truck,
regardlessof whether it is being used for a ocmmercialpurpose?
Article 6675a-2,V.A.C.S.,requims the owner of every motor vehicle
used or to ta used upon the publio highwaysto apply each year for the rsg-
istrationof such motor vehicle,with oertainexceptionsnot neoessaryto be
noted here.
Article 627a, Sec. 5a, Vernon’s AnnotatedPenal Code, provides:
"Upon applicationfor registrationof any commerolalmotorvehicle,
truck tractor,trailer or semi-trailer,the appllcsntshall deliver
to the Tax Collector,or one of his duly author!seddeputies,an
affidavit,duly sworn to before an offioerluthorlssdto administer
oaths, showingthe weight of arid vahiolr,the muimrrn load to be
transportedthereon,md the total gross weight for whichs aid vehi-
ale is to be registered:which affidavit shall bs kept on file by ths
Colleotor. The licenseroooipt iasuod to tho l pplioantshall also
show said totalgross weight for which raid whlols 18 rogirtorad.
A copy of arid receipt shall be arrird at all tlmrr on my suoh
vohlolowhiles amo is upon the pub110 highway.
“The copy of the rogirtrationlioensrrewipt above rsquirsdahall
be aWssiUo in evidenooin any cause ia which the gross rsgiator-
od weight of such vohiols II an irsur, and shallbe prlnu faolr
evidenceof the gross wsight for nhiah such nhiolr is rsgirtrrad.
Such copy of the roglrtraticalioeasr rowipt shall bs dirplayod
to lv o ffic erluthorlzodto rnforoe thir lbt, upon rrquert w
such officer.
sTho driver,omsr, operator,or other prron operating or driving
ouch vrhiols, fallingto comply with this provisionof this Aot,
shall te guilty of a misdsmaanorand u n conviotionshall be fined
in any ~WKInot exoeodingTwo Hundred (r200,OO)Dollars. AB upended
Acts 1941. 47th Leg., p. 144, oh. 110, 1 12.”
.
??onorable
Fed V. Meredith- Page 3 (O-7406)
It is thereforeour opinionthat ths driver of a pick-up truck
is requiredto carryin said truck a copy of the curmmt registration
license receipt issuedfor such truck at all times while saidtru& is
upon the public highway. Carryingsuch rsooiptupon his person will
answer the requirementof the statutewhile the drinker is in the truck.
Your8 very truly
A'ITORNEYGENERAL
OFTEXAS
By /s/W. R. Ulea
H-R. Allen
Assistant
APPROIIEDSEP 26, 1946
/s/Grover Sollors
ATTORlEYGENETR4LQFTEXAS
VfPA:LJ,egn AFPRovBD
OpinionCamnittoe
ByBWB
Chainnan
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[Cite as Estate of Hunter v. Dept. of Job & Family Servs., 2018-Ohio-1969.]
Court of Appeals of Ohio
EIGHTH APPELLATE DISTRICT
COUNTY OF CUYAHOGA
JOURNAL ENTRY AND OPINION
No. 105851
ESTATE OF OSCAR HUNTER
PLAINTIFF-APPELLANT
vs.
OHIO DEPARTMENT OF JOB
AND FAMILY SERVICES
DEFENDANT-APPELLEE
JUDGMENT:
AFFIRMED
Civil Appeal from the
Cuyahoga County Court of Common Pleas
Case No. CV-15-852977
BEFORE: Stewart, P.J., Blackmon, J., and Jones, J.
RELEASED AND JOURNALIZED: May 17, 2018
ATTORNEYS FOR APPELLANT
Joseph F. Petros
W. Cory Phillips
Rolf Goffman Martin Lang, L.L.P.
30100 Chagrin Boulevard, Suite 350
Cleveland, OH 44122
ATTORNEYS FOR APPELLEE
Michael DeWine
Ohio Attorney General
James Andrew Stevens
Amy R. Goldstein
Assistant Attorneys General
Health and Human Services Section
30 East Broad Street, 26th Floor
Columbus, OH 43215
MELODY J. STEWART, P.J.:
{¶1} Plaintiff-appellant estate of Oscar Hunter appeals from a common pleas court
decision affirming an Ohio Department of Jobs and Family Services (“agency”) dismissal of his
administrative appeal from the denial of Medicaid benefits on grounds that it was untimely filed.
The estate’s two assignments of error collectively claim that the court erred because the agency
did not give it proper notice that the claim had been denied.
{¶2} Our standard of review from decisions by the court of common pleas in
administrative appeals is limited: we can only determine whether the court of common pleas
abused its discretion. Bartchy v. State Bd. of Edn., 120 Ohio St.3d 205, 2008-Ohio-4826, 897
N.E.2d 1096, ¶ 41. We do, however, address questions of law de novo, with no deference to the
court of common pleas. Big Bob’s, Inc. v. Ohio Liquor Control Comm., 151 Ohio App.3d 498,
2003-Ohio-418, 784 N.E.2d 753, ¶ 15 (10th Dist.).
{¶3} The facts are undisputed. Hunter was admitted to a nursing home on July 30, 2013,
and that same day applied for Medicaid long-term care services. The agency denied the
application in April 2014 because Hunter did not meet the financial requirements for benefits.
The nursing home filed a request for a state hearing1 on the application, but the agency dismissed
the request in December 2014 because the nursing home failed to provide documentation
showing that it had been authorized to proceed as Hunter’s representative. The agency notified
Hunter that “[u]nless you request an administrative appeal, dismissal is a final and binding
decision on your request for state hearing.” Hunter took no further appeal from the dismissal.
1
Initial applications for benefits are made to the agency. When the application is made, the agency must give the
applicant notice of the right to a “state hearing” at which the applicant can be represented by “an authorized
representative.” See Ohio Adm.Code 5101:6-2-01(A).
{¶4} After securing the necessary permission to act as Hunter’s representative, the
nursing home filed a second application for long-term care services on August 5, 2014. The
agency approved the application effective August 1, 2014. The estate sought a state hearing on
whether the application should have been made effective from July 30, 2013, when Hunter filed
his first application for benefits. The request for a hearing was denied.
{¶5} The estate appealed to the court of common pleas, arguing that the agency failed to
properly process the July 2013 application for medical assistance by not seeking and reviewing
required financial documents, failing to explore all medical assistance options, and failing to give
proper notice that the July 2013 application had been dismissed. The agency argued that it
correctly denied Hunter’s August 2014 request to backdate his Medicaid eligibility to July 2013.
It maintained that Hunter’s failure to appeal the July 2013 decision waived his claims of
procedural defects, and that Hunter could not bootstrap challenges to the July 2013 application
for benefits in an appeal from the separate August 2014 application. The court summarily
denied Hunter’s appeal, finding the agency’s decision to be supported by reliable, probative, and
substantial evidence and issued in accordance with law.
{¶6} The estate argues that the agency could not “dismiss” the July 2013 request for a
state hearing because dismissal was not an available dispositional option. It maintains a request
for a state hearing can only be denied if (1) the request is untimely, or (2) the request was not
made by the individual or authorized representative. See Ohio Adm.Code 5101:6-5-03(C). 2
The estate concedes that Hunter’s request for a state hearing in the first application for benefits
was made by his nursing home, who was not an authorized representative, and thus lacked
2
A request for a state hearing can be dismissed only if (1) the hearing request is withdrawn before the state hearing
decision is issued or (2) the request for a state hearing is abandoned. See Ohio Adm.Code 5101:6-5-03(E).
standing to request a state hearing. Citing authority for the proposition that dismissals for want
of standing do not have preclusive effect because they are not decided on the merits, see, e.g.,
State ex rel. Coles v. Granville, 116 Ohio St.3d 231, 2007-Ohio-6057, 877 N.E.2d 968, ¶ 51, the
estate claims that the dismissal of the state hearing on the first application for benefits was not a
decision on the merits, but a recognition of a procedural defect that effectively meant that the
July 2013 request for a state hearing had never been properly requested.
{¶7} Hunter plainly had standing to request a state hearing because he had “a sufficient
stake in an otherwise justiciable controversy to obtain judicial resolution of that controversy.”
Cleveland v. Shaker Hts., 30 Ohio St.3d 49, 51, 507 N.E.2d 323 (1987). He may have lacked
the mental capacity to request a state hearing (he had a legal guardian at the time), necessitating
that the request be made by a personal representative. A personal representative is said to “stand
in the shoes” of the represented person. McDonald v. State Farm Mut. Auto. Ins. Co., 8th Dist.
Cuyahoga No. 76808, 2000 Ohio App. LEXIS 3621, 18 (Aug. 10, 2000). A claim brought on
behalf of a represented person depends on the represented person’s standing to bring an action
because the represented person is the real party in interest. See Civ.R. 17(A); Ohio Adm.Code
5101:6-3-02(A)(1) (“A state hearing may only be requested by or on behalf of an individual
applying for or receiving benefits.”).
{¶8} It is true that the nursing home in this case was not properly authorized as Hunter’s
personal representative for the state hearing on the July 2013 application for benefits. Its
attempt to seek a state hearing did not bind Hunter. Nevertheless, without further appeal, the
state hearing decision became final and binding. Even if we consider the nursing home’s
request for state hearing to be a nullity, Hunter was nonetheless required to adhere to the 90-day
time limit for seeking a state hearing. See Ohio Adm.Code 5101:6-3-02(B)(1) (“The individual
shall be allowed ninety calendar days to request a hearing on any action or inaction.”).
{¶9} The estate argues that it could validly raise objections to the rejection of the state
hearing in the July 2013 decision in the August 2014 request for a state hearing because the
agency failed to give any notice of the July 2013 decision.
{¶10} The 90-day time limit for challenging an adverse decision begins only after the date
the notice of action is mailed. See Ohio Adm.Code 5101:6-3-02(B)(2). The estate noted that
the record does not contain any documentation that notice of the state hearing on the July 2013
decision had been mailed, so it maintains that the 90-day time limit for challenging the decision
never began to run. The administrative record refutes the estate’s argument: a document shows
that the agency mailed notice that it rejected Hunter’s claim on April 17, 2014. And that mailed
notice was obviously received; hence the nursing home’s failed attempt to appeal from that
decision. The estate cannot maintain that the agency failed to give adequate notice of the July
2013 decision.
{¶11} The estate’s failure to timely appeal the denial of the July 2013 application for
benefits meant that the decision became final and binding. The estate is foreclosed from
relitigating questions resolved in the July 2013 denial of benefits in the August 2014 application
for benefits. Keech v. Ohio Dept. of Jobs & Family Servs., 6th Dist. Erie No. E-11-007,
2011-Ohio-6314, ¶ 32.
{¶12} Judgment affirmed.
It is ordered that appellee recover of appellant costs herein taxed.
The court finds there were reasonable grounds for this appeal.
It is ordered that a special mandate issue out of this court directing the common pleas
court to carry this judgment into execution.
A certified copy of this entry shall constitute the mandate pursuant to Rule 27 of the
Rules of Appellate Procedure.
______________________________________________
MELODY J. STEWART, PRESIDING JUDGE
PATRICIA ANN BLACKMON, J., and
LARRY A. JONES, SR., J., CONCUR
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83 Ariz. 231 (1957)
319 P.2d 991
Application of Jerome H. COURTNEY.
No. 6383.
Supreme Court of Arizona.
December 31, 1957.
*232 Lewis, Roca, Scoville & Beauchamp, Phoenix, for applicant.
Walter Roche and Clarence J. Duncan, Phoenix, for the State Bar of Arizona.
STRUCKMEYER, Justice.
Jerome Henry Courtney, petitioner herein, filed an original motion in this court *233 seeking admission to the State Bar of Arizona, and on his application an order was issued directing the State Committee on Examinations and Admissions to show cause why petitioner should not be admitted to membership in the State Bar and to the practice of law in Arizona. The Committee filed a response from which these uncontradicted facts appear.
Petitioner is a male citizen of the United States, 35 years of age, and a graduate of the University of Minnesota Law School. He was admitted to practice in the State of Minnesota in 1948 and practiced in Minneapolis until he established a legal residence in Tucson, Arizona, in June of 1954. Thereafter, he passed the Arizona State Bar Examination with a satisfactory grade, but the Committee on Examinations and Admissions denied his application for admission on the ground that he failed to establish his good moral character.
The admission to the practice of law in Arizona is in part controlled by statute and in part by rules of court. The Legislature has established a public corporation known as the State Bar of Arizona, Chap. 66, Laws of 1933, § 32-201 et seq., A.R.S. 1956. By this Act, no person may practice law in this state unless he is an active member of the State Bar in good standing. Admission as an active member of the State Bar is in accordance with Rule 28(a), Supreme Court Rules, 17 A.R.S. Rule 28(a) provides for the appointment of five select members of the State Bar to act as a Committee on Examinations and Admissions who recommend to this court for admission those found to have the necessary qualifications. The Committee, with the approval of the court, has adopted certain rules pertaining to admissions. Rule IV thereof provides that good moral character must be established by an applicant to the satisfaction of the Committee.
Good moral character is, of course, the usual requirement for admission to the practice of law, the burden of which rests squarely upon the applicant. In the event the proof of good moral character falls short of convincing the Committee, it is its duty not to recommend an admission. Spears v. State Bar of California, 211 Cal. 183, 294 P. 697, 72 A.L.R. 923. In this it has no discretion; if the members entertain any reservations whatsoever as to the applicant's good moral character, it should not make a favorable recommendation to this court.
There is in Arizona no precedent for petitioner's motion for admission to practice after the failure to obtain a recommendation by the Committee. However, because the admission to the practice of law is a judicial function, In re Bailey, 30 Ariz. 407, 248 P. 29, this court may, in the exercise of its inherent powers, admit to the practice of law with or without favorable action by the Committee. Brydonjack *234 v. State Bar of California, 208 Cal. 439, 281 P. 1018, 66 A.L.R. 1507; In re Lacey, 11 Cal.2d 699, 81 P.2d 935.
These conclusions bring us to a consideration of the nature of the evidence which compelled the Committee's action. Petitioner, pending the establishment of a six-months' period of continuous and bona fide residence in the State of Arizona, was employed by his brother-in-law, Warren R. Brock, a duly licensed and practicing lawyer in Tucson. The employment was as a clerk to do those things permitted under the then local practice. Such employment was in existence only two or three days when the following incident occurred.
On Saturday evening, the 17th of July, one Nanette Olson, a minor, was involved in an automobile accident in which she sustained certain personal injuries. Her mother, Mrs. Alberta Pace and Joe Pace, her step-father, were immediately summoned to the hospital in Tucson, where they remained with Nanette Olson until about midnight. On the following Sunday morning, as the Paces were preparing to return to the hospital, a neighbor advised Mrs. Pace that there was a telephone call for her at the neighbor's house. The Pace home did not have a telephone. This call was from petitioner who, Mrs. Pace says, wished to speak to her regarding the accident in which her daughter was involved the previous evening. Mrs. Pace further says that she told petitioner that she was on her way to the hospital and he replied that he would see her there. Concededly, both Brock and petitioner were total strangers to the Paces and to Nanette Olson. At the hospital, petitioner met the Paces near the entrance of Nanette Olson's room and there entered into a discussion with them relative to the advisability of engaging a lawyer to protect her legal rights. This discussion culminated in the signing of an employment contract by the terms of which Warren Brock was employed to represent Mrs. Pace in behalf of her minor daughter to settle or prosecute all claims against those liable for damages arising out of the accident. The employment contract was a typewritten instrument on the letterhead of Warren Brock, containing blanks in which the appropriate names and other data such as the amount to be paid the attorney were inserted in handwriting.
Except for the details of the telephone conversation between Mrs. Pace and petitioner, her testimony is fully corroborated by Mr. Pace and since the litigation was resolved satisfactorily to them, no sufficient reason has been advanced why the highest degree of credibility should not attach to their testimony. Prima facie, it establishes a violation of Canon 27, Canon of Professional Ethics of the American Bar Association prohibiting solicitation of professional employment and is grounds for disciplinary action against a member of the State Bar. *235 Judged by this standard there is clearly a sufficient want of good moral character to deny admission to practice in this state.
However, petitioner offers this explanation of the incident. On the Sunday morning in question, he received a telephone call from his mother-in-law, a Mrs. Juster. She stated to him that she had received a call from a woman who requested Warren Brock to call Mrs. Pace at the telephone number which later developed to be the Paces' neighbor. Mrs. Juster told the petitioner that she did not know where Brock was at the time, and it was either suggested by Mrs. Juster or the petitioner undertook to return the call in order to determine its urgency. Petitioner's testimony on this point is corroborated by the testimony of Mrs. Juster. Sometime later, petitioner did locate Brock who told him that he was busy and to go ahead and find out about the Pace matter. There is, we notice, some discrepancy between Mrs. Pace's testimony and that of the petitioner as to the exact tenor of the original conversation, petitioner stating that Mrs. Pace told him that her daughter had been in an automobile accident and suggested the meeting at the hospital.
Since it appears that the telephone call received by Mrs. Juster was not made by Mrs. Pace, as petitioner states he initially assumed, it has been his position that the call could have come from some friend of Brock's or possibly a mutual friend of Brock and Mrs. Pace. Mrs. Juster did testify some five months later that she was wholly unable to remember the name of the caller or whether that person even left a name. The testimony which tends to absolve the petitioner from the consequences of initiating the contact with Mrs. Pace has certain obvious weaknesses, not the least of which is its implausibility. We will not set forth here the many details which tend to deny or substantiate it. We are simply satisfied to say that while the incident could possibly have occurred as related, petitioner has failed in his burden of convincing the members of this court of the probable truth of his explanation. For that reason, we cannot say that the Committee's action was either unreasonable or arbitrary.
It has been suggested by counsel for the Committee that in this situation the court should follow the holding of In re Stone, 74 Wyo. 389, 288 P.2d 767. There the Wyoming court announced that it would support the Committee's recommendation unless it were shown that the Committee acted arbitrarily or abused its discretion. We are not inclined to adopt that procedure. We assume that the Committee may have been confronted with the same problem which we now find ourselves confronted in that it too may not have been wholly convinced by petitioner's explanation. If so, its plain duty was to refuse to certify that petitioner had the requisite *236 good moral character. It is, however, in this court that the exclusive power to admit to the practice of law rests, and as a concomitant, the duty exists to personally exercise the power. We do not believe that the ultimate responsibility of decision can so readily be avoided.
The foregoing leads us to the consideration of other factors to which we have given considerable weight. We presume that the applicant established his previous good moral character at and to the time of his admittance to the Minnesota Bar in 1948. The investigation of petitioner here has extended through three hearings and over a period of nearly two years. In the course of that investigation, 56 letters have been received strongly recommending the applicant as a person of high moral character. These letters are from judges, lawyers and business men who were acquainted with petitioner in Minnesota. They are furnished in part at the petitioner's request and in part by the National Conference of Bar Examiners which undertook an independent investigation at the request of the State Committee. We have also taken into consideration that in the course of this long investigation the Pace incident is the only one of this nature which has been suggested.
We have, accordingly, arrived at this conclusion. Because the circumstances surrounding the occurrence of the Pace incident are such that the truthfulness of petitioner's explanation can never be conclusively demonstrated, and because his previous good moral character is established in the only place in which it could be established, we will resolve the decision in his favor.
It is ordered that upon subscribing to the oath and the payment of the customary fee, the Clerk issue to Jerome Henry Courtney a Certificate of Admission to practice law and that he be admitted to membership in the State Bar of Arizona.
UDALL, C.J., and WINDES, PHELPS and JOHNSON, JJ., concur.
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857 P.2d 1197 (1993)
Garland M. GREEN, Appellant,
v.
STATE of Alaska, Appellee.
No. A-4246.
Court of Appeals of Alaska.
August 6, 1993.
Randall Cavanaugh, Anchorage, for appellant.
Eric A. Johnson, Asst. Atty. Gen., Office of Sp. Prosecutions and Appeals, Anchorage, and Charles E. Cole, Atty. Gen., Juneau, for appellee.
Before BRYNER, C.J., and COATS and MANNHEIMER, JJ.
OPINION
MANNHEIMER, Judge.
Garland M. Green was convicted of first-degree burglary, AS 11.46.300(a)(1), and third-degree theft, AS 11.46.140(a)(1), following a jury trial in the Anchorage superior court. Green appeals his convictions, asserting that the State had no authority to prosecute him for burglary and theft because the police who arrested and interrogated him promised him immunity from prosecution if he cooperated by returning the property he had stolen. Green also appeals his sentence. We affirm.
In the early morning of October 2, 1990, Michael Reed was working the night shift for Offshore Systems in Unalaska. At approximately 3:00 a.m., Reed saw someone inside the supervisor's trailer; knowing that his supervisor was generally asleep at that hour, Reed approached the trailer to investigate. As Reed neared the trailer, he saw a man climb out of the window. Reed asked the man, "Who the hell are you?" The man held up a wallet and answered, "I'm a friend of yours." When Reed responded, "You're no friend of mine," the man shoved Reed aside and ran away.
Reed woke his supervisor, Robert Nufer. Nufer searched the trailer and discovered that his wallet and $40 cash were missing. He then called the Unalaska police. Officer John Nichols interviewed Nufer and Reed. Reed gave Nichols a physical description of the burglar; he told Nichols that he recognized the burglar but did not know his name.
*1198 Later that morning, Nufer called the Unalaska police and told them that he had discovered that the burglary had been committed by Green, who was an Offshore Systems employee living in room 28 of the company bunkhouse. Officer Meta Parker went to room 28 and confronted Green, who denied being involved in the burglary. Officer Parker left to get Nufer and Reed; when she returned with the two men, Reed identified Green as the man he had seen climbing out of the trailer. Parker arrested Green and took him to the Unalaska Department of Public Safety.
Officers Nichols and Parker interviewed Green. Green initially denied committing the burglary and theft, but he soon confessed. Green told the officers that he had hidden Nufer's wallet in the men's restroom at the Offshore Systems bunkhouse and that he had put the $40 in his own wallet, which was hidden under his mattress.
Nichols had attempted to tape record the interview with Green, but when the interview was over he discovered that the tape recorder had malfunctioned. When Nichols found that there was no tape of the interview, he decided to ask Green to fill out a "voluntary statement" form. Green sat in his cell and reiterated his confession in writing on the form. In stark contrast to the fact that Green had been arrested and had been interrogated about the burglary, the "voluntary statement" form begins with the following language:
VOLUNTARY STATEMENT (NOT UNDER ARREST)
I, (Garland Green), am not under arrest for, nor am I being detained for any criminal offenses concerning the events I am about to make known to (the Unalaska police). Without being accused of or questioned about any criminal offenses regarding the facts I am about to state, I volunteer the following information of my own free will, for whatever purposes it may serve.
Green also gave Nichols permission to search his room at the bunkhouse. Nichols found the wallet and the money where Green had said they would be.
On April 11, 1991, a grand jury indicted Green for burglary and theft. Green asked the superior court to dismiss the indictment with prejudice, claiming that the Unalaska police had promised him immunity from prosecution if he cooperated with them by returning the stolen articles.
At the hearing on Green's motion to dismiss, Green testified that he had told the officers that he had a ticket for a flight out of Unalaska at 2 o'clock that afternoon. According to Green, Officer Nichols replied, "Mr. Green, this is not a very serious crime. Just tell us where the wallet is, and you can catch your flight." Green testified that he interpreted Nichols's comment as a promise that he would not be prosecuted if he returned the wallet and the money. Green stated that, when he read the wording of the "voluntary statement" form, this confirmed to him that he would not be detained or charged if he returned the stolen property.
Officer Nichols took the stand and denied making the statements Green attributed to him. Nichols declared that the only promise he had made to Green was that, if Green cooperated with the police, this cooperation would be made known to the district attorney, but with no guarantee that this would affect the charges against Green.
Superior Court Judge pro tem Michael Wolverton ruled that Green's confession at the Unalaska police station had to be suppressed under Stephan v. State, 711 P.2d 1156 (Alaska 1985); Judge Wolverton found that, under all the circumstances, the officers' failure to tape record the interview was not excusable. The judge also suppressed the recovered wallet and money because they were fruits of the unlawful interrogation.
However, because the State could still prove its case through the testimony of Reed and Nufer, the question remained whether the indictment should be dismissed. Judge Wolverton denied Green's motion to dismiss the indictment. The *1199 judge found that Officer Nichols might have unwittingly said things to Green that caused Green to think he would not be prosecuted if he returned the wallet and the money, but the judge also found that Nichols had not knowingly offered immunity to Green. Therefore, Judge Wolverton concluded, there had been no "meeting of the minds" no contract.
Green challenges Judge Wolverton's ruling. He relies on the principle of contract law that the existence and scope of a contract must be proved by the objective manifestations of the parties, and that a party's self-serving declarations about the party's subjective intention, made after litigation commences, will not be allowed to prove, disprove, or vary the terms of a contract. See, for example, Peterson v. Wirum, 625 P.2d 866, 870 (Alaska 1981). Green argues that Nichols's statements to him during interrogation and the wording of the "voluntary statement" form that Nichols asked Green to sign later are objective proof that Nichols offered Green immunity, and that Nichols cannot defeat this conclusion by testifying that this was not what he subjectively intended.
We conclude, however, that the existence or non-existence of a contract between Green and the Unalaska police is a moot issue. Even if the Unalaska police promised immunity to Green, this promise would not be enforceable against the State of Alaska.
While "a prosecutor's promise of immunity made in return for a surrender of the privilege against self-incrimination is binding on the prosecution", Surina v. Buckalew, 629 P.2d 969, 975 (Alaska 1981), the effect of a police officer's promise of immunity has not been decided in Alaska. This issue was mentioned in passing by the supreme court in Closson v. State, 812 P.2d 966, 971 n. 6 (Alaska 1991), but the court found it unnecessary to resolve the issue because the police promises in Closson had been contemporaneously ratified by an assistant district attorney.
Turning to decisions from other jurisdictions, the clear rule is that the police have no authority to promise immunity to a criminal defendant. For example, in People v. Gallego, 430 Mich. 443, 424 N.W.2d 470 (1988), affirming 143 Mich. App. 639, 372 N.W.2d 640 (1985), state police officers promised the defendant immunity from prosecution if he returned $33,000 that had been used by the officers to make an undercover purchase of drugs. Gallego told the officers where to find the money, but several months later he was nevertheless charged with sale of cocaine. 424 N.W.2d at 471.
Gallego sought dismissal of the charge, claiming that he had a right to specific performance of the officers' promise. The Michigan Supreme Court disagreed:
We base our decision to deny defendant specific performance on the fact that the police lacked the authority to make a binding promise of immunity or not to prosecute. The case at bar involves a non-plea agreement for which specific performance amounts to preclusion of an otherwise valid prosecution, and the Court has available an alternative remedy short of specific performance, i.e., suppression, which essentially restores defendant to the position he enjoyed prior to making the agreement in question with the police.
The absence of authority of the police in this matter is significant for several reasons... . Since the police possess neither the authority to withhold prosecution nor to grant immunity, no formal system exists by which to check the potentially unbridled discretion the police would possess if allowed to make binding promises precluding prosecution. The potential for abuse seems obvious.
.....
In addition, enforcing the unauthorized promise made by the police to defendant raises the question of the logical limits of the power of the police to control the criminal justice system. If the police may make unauthorized, yet binding promises that preclude prosecution, why could they also not make binding plea bargains or sentence agreements? Thus, in granting defendant specific performance, *1200 this Court would create a dangerous precedent... .
[D]ismissal of criminal charges as a remedy for alleged police misconduct is a drastic and disfavored remedy. See, e.g., United States v. Blue, [384 U.S. 251, 255, 86 S.Ct. 1416, 1419, 16 L.Ed.2d 510 (1966)]; United States v. Rogers, 751 F.2d 1074, 1076-1077 [(9th Cir.1985)]. In this case, dismissal of criminal charges is even less desirable ... because it advances no other legitimate interests. .. .
[A]n alternative remedy [exists] which essentially restores defendant to the position he enjoyed prior to making the agreement in question with the police.... Moreover, we are not required, as a result of the "constable's blunder," to place defendant in a better position than he enjoyed prior to making the agreement with the police.
People v. Gallego, 424 N.W.2d at 473-76 (footnotes omitted).
The Michigan Supreme Court's ruling is echoed in other decisions from around the country. In Winkles v. State, 40 Md. App. 616, 392 A.2d 1173 (1978), the Maryland Court of Special Appeals said:
[The defendant asserts that a police officer promised him] that these charges would not be prosecuted[.] .. . That promise could only be made by the State's Attorney. The discretion as to whether to prosecute is solely in the State's Attorney, and only that official (or his authorized assistants, in his name) could validly exercise that discretion[.] ... [A] police officer has neither the power himself to make such a promise, nor to bind the State's Attorney to it. To conclude otherwise would not only risk the serious possibility of corruption, abuse, and substantial mischief and uncertainty in the prosecution of criminal cases, but would infringe upon the discretion constitutionally committed to the State's Attorney.
Winkles, 392 A.2d at 1175-76.
In Yarber v. State, 368 So.2d 868 (Ala. Crim. App. 1978), cert. denied, 368 So.2d 871 (Ala. 1978), the court stated:
[L]aw enforcement officers are without question totally lacking in power to authorize or grant immunity from arrest or prosecution to one criminally culpable under the laws of this state. Any right of an accused not to be prosecuted because of such a promise of immunity is equitable only. Breach of such a promise cannot be pled in bar of an indictment, as grounds for dismissal of the prosecution, or as grounds for reversal on appeal.
Yarber, 368 So.2d at 869-870. See also Yarber v. State, 375 So.2d 1212, 1227 (Ala. Crim. App. 1977) ("Under the settled law of this state[,] law enforcement officers are utterly without power and authority to grant an accused immunity from arrest and prosecution for violating our criminal laws. To clothe them with such power and authority would strike at the very heart of our system of criminal justice and oust the courts of the powers invested in them by the Constitution and statutes."), rev'd on other grounds, 375 So.2d 1229 (Ala. 1978); Application of Parham, 6 Ariz. App. 191, 193, 431 P.2d 86, 88 (1967) ("We address ourselves first to the question of whether the petitioner is entitled to the relief he seeks specific performance of his `bargain' with the law enforcement officers that if he would help in a criminal investigation, all charges, including the one for which he was sentenced, would be dropped. We hold that such promises, if made by police officers[,] are unenforceable, as being beyond the scope of authority of such officers."); People v. Thompson, 88 Ill. App.3d 375, 43 Ill.Dec. 600, 410 N.E.2d 600 (1980) (holding that, despite an apparent promise made by an auditor from the state department of revenue, the state's attorney could prosecute the defendant for tax offenses); State v. Crow, 367 S.W.2d 601, 605-06 (Mo. 1963) ("[I]t seems quite clear that the sheriff has no standing to grant or offer immunity as a bar to a prosecution. 15 Am.Jur., Criminal Law, § 322, p. 19, in discussing who may grant immunity states: `Nor can police officers or a sheriff grant immunity from prosecution to one of two or more persons accused of a crime on condition of confession and readiness to *1201 become a witness against the others accused, at least where the promise is made without authority of the prosecuting attorney[,] and such a promise cannot be pleaded in bar of an indictment for the crime.'"); State v. Cox, 162 W. Va. 915, 253 S.E.2d 517, 521 (1979) ("Every court addressing this issue has held that law enforcement officers do not have authority to promise that in exchange for information, a defendant will not be prosecuted for the commission of a crime[,] and such a promise is unenforceable as being beyond the scope of their authority... . We hold ... that law enforcement officers do not have authority to promise immunity from prosecution in exchange for information, and such promises are generally unenforceable.").
In accord with these authorities, we likewise hold that police officers, acting on their own, cannot enter into a binding immunity or non-prosecution agreement with a suspect or defendant. If Officer Nichols promised immunity to Green to secure Green's cooperation and his incriminating statements, and the State nevertheless brought charges against Green, then Green's remedy would be suppression of all evidence yielded by the officer's promise. "It is well settled that a confession is improperly induced if it is made in response to a promise of immunity from prosecution." Smith v. State, 787 P.2d 1038, 1039 (Alaska App. 1990).
However, the fact that a defendant's confession has been improperly obtained does not entitle a defendant to dismissal of all charges. In United States v. Blue, 384 U.S. 251, 86 S.Ct. 1416, 16 L.Ed.2d 510 (1966), the Supreme Court stated:
Even if ... the Government [acquired] incriminating evidence in violation of the Fifth Amendment, [a defendant] would at most be entitled to suppress the evidence and its fruits if they were sought to be used against him at trial... . Our numerous precedents ordering the exclusion of such illegally obtained evidence assume implicitly that the remedy does not extend to barring the prosecution altogether. So drastic a step might advance marginally some of the ends served by the exclusionary rules, but it would also increase to an intolerable degree interference with the public interest in having the guilty brought to book.
Blue, 384 U.S. at 255, 86 S.Ct. at 1419 (footnote omitted). Accord, People v. Manning, 672 P.2d 499, 512 (Colo. 1983):
In cases ... involving [a defendant's] reasonable and detrimental reliance upon a governmental promise, the question of remedy turns ultimately on what type of relief will accord the defendant substantial justice... . When [remedies other than specific performance] are available, then the court should exercise a reasonable discretion in fashioning a form of relief that can secure substantial justice to the defendant and at the same time accommodate the legitimate interests of the government.
See also People v. Dandridge, 152 Ill. App.3d 941, 105 Ill.Dec. 904, 906, 505 N.E.2d 30, 32 (1987), appeal denied, 115 Ill.2d 545, 110 Ill.Dec. 460, 511 N.E.2d 432 (1987).
Judge Wolverton had already suppressed Green's confession and its fruits because the Unalaska police had violated Stephan. Green was entitled to no additional relief.
We recognize that courts may have the equitable power to order specific performance of an unauthorized promise of immunity in exceptional cases cases in which a defendant's detrimental reliance on the unauthorized promise has put the defendant in a position where suppression of the evidence obtained through the unenforceable promise would not cure the injustice to him or her.[1] Green's case, however, does not present such circumstances.
Green's final contentions on appeal concern his sentence. Green, a second felony *1202 offender, was subject to presumptive sentencing. Relying on the fact that he had told the police where to find Nufer's wallet and money, Green proposed one statutory mitigating factor: AS 12.55.155(d)(10), that "before the defendant knew that the criminal conduct had been discovered, the defendant fully compensated or made a good faith effort to fully compensate the victim of the defendant's criminal conduct for any damage or injury sustained". Green also asserted that his cooperation with the police demonstrated his uncommonly good potential for rehabilitation, the non-statutory mitigator recognized by this court in Smith v. State, 711 P.2d 561, 569-572 (Alaska App. 1985).
Judge Wolverton was obviously correct when he concluded that mitigating factor (d)(10) did not apply to Green's case. To prove mitigator (d)(10), Green had to show that his effort to compensate the victim was made "before [Green] knew that the criminal conduct had been discovered". Green revealed the location of Nufer's wallet and money only after Reed had identified him as the burglar and Officer Parker had arrested him. Thus, mitigator (d)(10) was unavailable to him.
For similar reasons, Judge Wolverton rejected Green's argument that his cooperation with the police demonstrated his uncommonly good potential for rehabilitation. Judge Wolverton concluded that Green's cooperation had been motivated, not by remorse or desire to do the right thing, but by the prospect of having the charges dropped. Judge Wolverton's conclusion is not clearly erroneous. Lepley v. State, 807 P.2d 1095, 1099 n. 1 (Alaska App. 1991).
The judgement of the superior court is AFFIRMED.
NOTES
[1] See, for example, Rihl v. State, 413 N.E.2d 1046, 1053 (Ind. App. 1980), refusing to enforce an alleged promise of immunity by the police when "factors which [might] justify the equitable enforcement of an agreement between a representative of the State and a defendant on public policy grounds simply are not present".
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Becker v. State
COURT OF APPEALS
EIGHTH DISTRICT OF TEXAS
EL PASO, TEXAS
IN THE INTEREST OF V.V.G.,
A CHILD.
§
§
§
§
§
§
No. 08-08-00171-CV
Appeal from
383rd District Court
of El Paso County, Texas
(TC # 2005AG2252)
MEMORANDUM OPINION
This appeal is before the Court on its own motion for determination whether the appeal
should be dismissed for want of prosecution. Finding that Appellant has not filed a brief or a motion
for extension of time, we dismiss the appeal.
Appellant, Sergio Garcia, failed to file his brief on the due date, July 5, 2008. On July 16,
2008, the Clerk of the Court sent a notice advising the parties that Appellant had not filed his brief
or motion for extension of time. Further, the notice advised the parties of the Court's intent to
dismiss the appeal for want of prosecution unless one of the parties responded showing grounds to
continue the appeal. No response has been received as of this date. This Court possesses the
authority to dismiss an appeal for want of prosecution when the appellant has failed to file his brief
in the time prescribed, and gives no reasonable explanation for such failure. Tex.R.App.P.
38.8(a)(1); Elizondo v. City of San Antonio, 975 S.W.2d 61, 63 (Tex.App.--San Antonio 1998, no
writ). Because Appellant failed to file his brief and has not responded to our inquiry, we dismiss the
appeal for want of prosecution pursuant to Tex.R.App.P. 38.8(a)(1), 42.3(b), and 42.3(c).
September 24, 2008
ANN CRAWFORD McCLURE, Justice
Before Chew, C.J., McClure, and Carr, JJ.
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492 F.3d 263 (2007)
UNITED STATES of America, Plaintiff-Appellee,
v.
Walter Oriley POINDEXTER, Defendant-Appellant.
United States of America, Plaintiff-Appellee,
v.
Walter Oriley Poindexter, Defendant-Appellant.
Nos. 05-7635, 05-7636.
United States Court of Appeals, Fourth Circuit.
Argued: May 22, 2007.
Decided: June 28, 2007.
*264 *265 ARGUED: Megan Elizabeth Quinlan, Covington & Burling, Washington, DC, for Appellant. Harry Mason Gruber, Assistant United States Attorney, Office of the United States Attorney, Baltimore, Maryland, for Appellee. ON BRIEF: Caroline M. Brown, Covington & Burling, Washington, DC, for Appellant. Rod J. Rosenstein, United States Attorney, Baltimore, Maryland, for Appellee.
Before MOTZ and SHEDD, Circuit Judges, and HAMILTON, Senior Circuit Judge.
Vacated and remanded by published opinion. Senior Judge HAMILTON wrote the opinion, in which Judge MOTZ and Judge SHEDD joined.
OPINION
HAMILTON, Senior Circuit Judge.
Walter Poindexter filed a motion pursuant to 28 U.S.C. § 2255, contending, among other things, that his attorney rendered constitutionally ineffective assistance when he failed to file a timely notice of appeal after being unequivocally instructed to do so. In denying Poindexter's motion without an evidentiary hearing, the district court declined to resolve the factual dispute concerning whether Poindexter unequivocally instructed his attorney to file a timely notice of appeal. Instead, the court concluded that Poindexter's ineffective assistance of counsel claim lacked merit because: (1) in his plea agreement, Poindexter waived his right to appeal his conviction and sentence; and (2) Poindexter was sentenced in accordance with the terms of the plea agreement. Poindexter appeals. For the reasons stated below, we hold that an attorney renders constitutionally ineffective assistance of counsel if he fails to follow his client's unequivocal instruction to file a timely notice of appeal even though the defendant may have waived his right to challenge his conviction and sentence in the plea agreement. Accordingly, we vacate the district court's judgment and remand for further proceedings consistent with this opinion.
I
On October 23, 2003, Poindexter was charged by a federal grand jury sitting in the District of Maryland with conspiracy to distribute in excess of one kilogram of heroin, 21 U.S.C. §§ 841(a)(1) and 846, and three counts of distributing heroin, id. § 841(a)(1). The conspiracy count alleged that Poindexter and another individual used various locations in the City of Baltimore to cut, package, stash, and sell heroin. *266 The conspiracy count also alleged as an overt act in furtherance of the conspiracy that, on January 22, 2001, Poindexter shot and killed another man that Poindexter believed was responsible for burglarizing one of the stash houses. The three distribution counts alleged that, on three separate occasions in September 2002, Poindexter sold a quantity of heroin to an FBI cooperating witness. On December, 1, 2003, the case went to trial. After three days of trial, Poindexter decided to plead guilty to the three distribution counts.
In the plea agreement, the parties stipulated to a drug amount substantially lower than the one kilogram quantity charged in the conspiracy count. For its part, the government agreed not to seek an enhancement to Poindexter's sentence based on Poindexter's alleged role in the January 22, 2001 shooting incident.[1] For his part, Poindexter agreed not to appeal his sentence, including "any issues that relate[d] to the establishment of the guideline range," (J.A. 39), provided: (1) the district court did not upwardly depart from the sentencing range provided for by the Sentencing Guidelines; or (2) the sentence imposed did not exceed the statutory maximum allowed under the law, which was twenty years' imprisonment on each count.[2]
On December 4, 2003, the district court held a Rule 11 hearing. See Fed. R.Crim.P. 11. During the hearing, Poindexter acknowledged that he had discussed the appeal waiver with his attorney, understood the nature of the waiver, and agreed to be bound by the waiver.
A presentence report (PSR) was prepared in preparation for sentencing. The PSR recommended a sentencing range of 168 to 210 months' imprisonment, based on the conclusion that Poindexter's total offense level was 30 and his criminal history category was VI. In accordance with the PSR's recommendations, the district court sentenced Poindexter to concurrent terms of 168 months' imprisonment on each count. Poindexter did not file a notice of appeal.
On March 28, 2005, Poindexter filed a motion pursuant to 28 U.S.C. § 2255 to vacate, set aside, or correct his sentence. In his motion, Poindexter claimed, among other things, that he was denied the effective assistance of counsel when his attorney failed to file a timely notice of appeal after he unequivocally instructed his attorney to do so.[3]
On August 8, 2005, the district court denied Poindexter's motion without an evidentiary hearing, holding, inter alia, that Poindexter could not prevail on his claim that his attorney rendered constitutionally *267 ineffective assistance of counsel when he failed to file a timely notice of appeal because Poindexter was sentenced within the sentencing range established by the Sentencing Guidelines and, therefore, any challenge to his sentence would fall under the appeal waiver contained in the plea agreement. In so ruling, the district court incorrectly observed that Poindexter's appeal waiver covered an appeal of his conviction, as opposed to just an appeal of his sentence. Also of note, the district court declined to resolve the factual dispute concerning whether Poindexter unequivocally instructed his attorney to file a timely notice of appeal.[4] Following the district court's denial of a certificate of appealability, Poindexter filed an application for a certificate of appealability in this court. On July 12, 2006, we granted Poindexter a certificate of appealability on his claim that his attorney rendered constitutionally ineffective assistance of counsel when he failed to file a timely notice of appeal after being unequivocally instructed to do so.
II
When reviewing an appeal from the denial of a § 2255 motion, we review de novo the district court's legal conclusions. United States v. Nicholson, 475 F.3d 241, 248 (4th Cir.2007). When the district court denies § 2255 relief without an evidentiary hearing, the nature of the court's ruling is akin to a ruling on a motion for summary judgment. Id. In such a circumstance, we review the facts in the light most favorable to the § 2255 movant. Id. Because the district court did not hold an evidentiary hearing to resolve the question of whether Poindexter unequivocally instructed his attorney to file a timely notice of appeal, we must assume that Poindexter did so instruct for purposes of resolving his appeal.
Poindexter contends that an attorney who disregards his client's unequivocal instruction to file a timely notice of appeal acts in a manner that is both professionally unreasonable and presumptively prejudicial, notwithstanding the fact that the client may have executed an appeal waiver. In response, the government submits that Poindexter's appeal waiver allowed the district court to dismiss his § 2255 motion if the district court found his claims frivolous, either because they were covered by the appeal waiver or because they failed on the merits.
The Sixth Amendment provides that, "[i]n all criminal prosecutions, the accused shall enjoy the right . . . to have the Assistance of Counsel for his defence." U.S. Const. amend. VI. The Supreme Court has long recognized that the right to counsel includes "the right to the effective assistance of counsel." McMann v. Richardson, 397 U.S. 759, 771 n. 14, 90 S.Ct. 1441, 25 L.Ed.2d 763 (1970). An ineffective assistance of counsel claim requires a showing that (1) "counsel's performance was deficient" and (2) "the deficient performance prejudiced the defense." Strickland v. Washington, 466 U.S. 668, 687, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984).
The Constitution of course does not give a criminal defendant the right to appeal as a matter of right. Jones v. Barnes, 463 U.S. 745, 751, 103 S.Ct. 3308, 77 L.Ed.2d 987 (1983). However, the United States Code provides this right in 18 U.S.C. § 3742, and we have recognized that a defendant can waive this statutory *268 right. United States v. Wiggins, 905 F.2d 51, 53 (4th Cir.1990).
In Roe v. Flores-Ortega, 528 U.S. 470, 120 S.Ct. 1029, 145 L.Ed.2d 985 (2000), the Supreme Court applied Strickland to an ineffective assistance claim involving a defendant who did not give his attorney instructions on whether to file a timely notice of appeal. Id. at 476-87, 120 S.Ct. 1029. The defendant in that case neither asked his lawyer to file a timely notice of appeal nor consented to her not filing one. Id. at 475, 120 S.Ct. 1029. On appeal from the denial of relief under 28 U.S.C. § 2254, the Ninth Circuit held that the defendant was deprived of the effective assistance of counsel, holding that an attorney must file a timely notice of appeal unless the defendant specifically instructs otherwise. Flores-Ortega, 528 U.S. at 476, 120 S.Ct. 1029.
The Supreme Court in Flores-Ortega began its performance analysis by noting that an attorney who disregards a defendant's specific instruction to file a timely notice of appeal acts in a professionally unreasonable manner. Id. at 477, 120 S.Ct. 1029. The Court also noted that an attorney is under no obligation to file a notice of appeal where the defendant explicitly instructs his attorney not to file one. Id. The performance issue in Flores-Ortega was the attorney constitutionally deficient for not filing a notice of appeal where the defendant had not conveyed or clearly conveyed his appellate wishesobviously fell somewhere "between" these two principles. Id.
The Court in Flores-Ortega rejected the brightline performance rule applied in the Ninth Circuit as "inconsistent with Strickland's holding that `the performance inquiry must be whether counsel's assistance was reasonable considering all the circumstances.'" Id. at 478, 120 S.Ct. 1029 (quoting Strickland, 466 U.S. at 688, 104 S.Ct. 2052). Instead, the Court opined that, in certain circumstances, an attorney is constitutionally required to "consult" with the defendant concerning the advantages and disadvantages of taking an appeal and to discover the defendant's appellate wishes. Id. at 478, 120 S.Ct. 1029. The Court stated that an attorney must consult with a defendant when there is reason to believe that either (1) a rational defendant would want to appeal or (2) the defendant reasonably demonstrated to his attorney that he was interested in appealing. Id. at 480, 120 S.Ct. 1029. In assessing whether an attorney had a constitutional duty to consult, the Court indicated that several factors were relevant, including whether the conviction followed a trial or guilty plea. Id. In cases involving guilty pleas, the Court instructed lower courts to consider "whether the defendant received the sentence bargained for as part of the plea and whether the plea expressly reserved or waived appeal rights." Id.
Turning to the prejudice prong, the Court observed that a presumption of prejudice applies when an attorney's deficient performance deprives the defendant of an appeal. Id. at 483, 120 S.Ct. 1029. Thus, where the defendant unequivocally instructs an attorney to file a timely notice of appeal, prejudice is presumed because it results in the "forfeiture" of the appellate proceeding. Id.; see also United States v. Sandoval-Lopez, 409 F.3d 1193, 1195-99 (9th Cir.2005) (noting that the "prejudice in failure to file a notice of appeal cases is that the defendant lost his chance to file the appeal, not that he lost a favorable result that he would have obtained by appeal"). If the defendant did not so instruct his attorney and his attorney subsequently did not fulfill his consultation obligations, prejudice will be presumed if the defendant can show that, had *269 he received reasonable advice from his attorney, he would have instructed his attorney to file a timely notice of appeal. Flores-Ortega, 528 U.S. at 486, 120 S.Ct. 1029. Whether the defendant has met the prejudice standard "will turn on the facts of [the] particular case." Id. at 485, 120 S.Ct. 1029. However, "evidence that there were nonfrivolous grounds for appeal or that the defendant in question promptly expressed a desire to appeal will often be highly relevant in making [the prejudice] determination." Id. In demonstrating prejudice, the defendant is under no obligation "to demonstrate that his hypothetical appeal might have had merit." Id. at 486, 120 S.Ct. 1029.
As noted above, the district court did not hold an evidentiary hearing to determine whether Poindexter unequivocally instructed his attorney to file a timely notice of appeal. Accordingly, we must assume that Poindexter did so instruct. This assumption is outcome determinative in this case for the following reasons. Once Poindexter unequivocally instructed his attorney to file a timely notice of appeal, his attorney was under an obligation to do so. Under Flores-Ortega, therefore, his attorney acted in a professionally unreasonable manner. Because his attorney's unprofessional conduct resulted in Poindexter losing his appellate proceeding, he has established prejudice under Flores-Ortega as well.
The government argues that Flores-Ortega did not involve an appeal waiver and, therefore, is distinguishable and of little assistance in this case. However, the Court in Flores-Ortega stated that, once an attorney is unequivocally instructed to file a timely notice of appeal, he is under an obligation to do so. Id. at 477, 120 S.Ct. 1029. Under the Court's holding in that case, it is only when the defendant either does not make his appellate wishes known or does not clearly express his wishes that an attorney has some latitude in deciding whether to file an appeal. Id. at 478-80, 120 S.Ct. 1029. Simply put, Flores-Ortega reaffirms the time-honored principle that an attorney is not at liberty to disregard the appellate wishes of his client. See Peguero v. United States, 526 U.S. 23, 28, 119 S.Ct. 961, 143 L.Ed.2d 18 (1999) ("[W]hen counsel fails to file a requested appeal, a defendant is entitled to [a new] appeal without showing that his appeal would likely have had merit."); Rodriquez v. United States, 395 U.S. 327, 89 S.Ct. 1715, 23 L.Ed.2d 340 (1969) (holding that an attorney who disregards his client's instruction to file a timely notice of appeal acts in a professionally unreasonable manner); Cf. United States v. Peak, 992 F.2d 39, 42 (4th Cir.1993) (holding that a "criminal defense attorney's failure to file a notice of appeal when requested by his client deprives the defendant of his Sixth Amendment right to the assistance of counsel, notwithstanding that the lost appeal may not have had a reasonable probability of success").
Next, the government argues that application of a rule requiring an attorney to file a timely notice of appeal when unequivocally instructed to do so by his client deprives, in the appeal waiver context, the government of the benefit of its bargain. According to the government, it bargained for Poindexter's appeal waiver and should receive the benefit of that bargain.
Plea bargaining is an "important component [ ] of this country's criminal justice system." Blackledge v. Allison, 431 U.S. 63, 71, 97 S.Ct. 1621, 52 L.Ed.2d 136, (1977); see also Brady v. United States, 397 U.S. 742, 752 n. 10, 90 S.Ct. 1463, 25 L.Ed.2d 747 (1970) (recognizing that 90 to 95% of all criminal convictions involve guilty pleas). As the Supreme Court recognized in Blackledge,
*270 [p]roperly administered, they can benefit all concerned. The defendant avoids extended pretrial incarceration and the anxieties and uncertainties of a trial; he gains a speedy disposition of his case, the chance to acknowledge his guilt, and a prompt start in realizing whatever potential there may be for rehabilitation. Judges and prosecutors conserve vital and scarce resources. The public is protected from the risks posed by those charged with criminal offenses who are at large on bail while awaiting completion of criminal proceedings.
Blackledge, 431 U.S. at 71, 97 S.Ct. 1621. "Plea bargains rest on contractual principles," and, thus, each party to a plea agreement should receive the benefit of their respective bargain. United States v. Ringling, 988 F.2d 504, 506 (4th Cir.1993).
Appeal waivers also play an important role in the plea bargaining process. They not only alleviate the government of the burden of a costly appeal, but they also preserve the finality of judgments and sentences. Wiggins, 905 F.2d at 54; see also United States v. Blick, 408 F.3d 162, 167-68 (4th Cir.2005) (discussing the importance of appeal waivers). This court has enforced appeal waivers in a number of cases involving a variety of circumstances. See, e.g., United States v. Johnson, 410 F.3d 137, 151-53 (4th Cir.), cert. denied, 546 U.S. 952, 126 S.Ct. 461, 163 L.Ed.2d 350 (2005); Blick, 408 F.3d at 169-73; United States v. General, 278 F.3d 389, 399-401 (4th Cir.2002); United States v. Brown, 232 F.3d 399, 402-06 (4th Cir. 2000); United States v. Brock, 211 F.3d 88, 92 n. 6 (4th Cir.2000). We will enforce an appeal waiver so long as the waiver is knowing and intelligent and the issue sought to be appealed falls within the scope of the appeal waiver. Blick, 408 F.3d at 168. Finally, we have "refused to enforce valid appeal waivers for a narrow class of claims, . . . based on our determination that those claims were not within the scope of the waiver." Id. at 171 (citation and internal quotation marks omitted). This narrow class of claims involves errors that the defendant "could not have reasonably contemplated" when the plea agreement was executed. Id. at 172; see also United States v. Broughton-Jones, 71 F.3d 1143 (4th Cir.1995) (holding that a valid appeal waiver in which the defendant waived her right to appeal her sentence on the grounds specified in 18 U.S.C. § 3742 did not preclude her from asserting on appeal that a restitution order to which she had formally agreed was not authorized by the applicable statute); United States v. Attar, 38 F.3d 727, 732-33 (4th Cir.1994) (noting that a defendant who agreed to a general appeal waiver did not waive his right to appeal his sentence on the ground that the proceedings following the entry of his guilty plea were conducted in violation of his Sixth Amendment right to counsel); United States v. Marin, 961 F.2d 493, 496 (4th Cir.1992) (noting that a "defendant could not be said to have waived his right to appellate review of a sentence imposed in excess of the maximum penalty provided by statute or based on a constitutionally impermissible factor such as race").
In the typical appeal waiver case, the government and the defendant enter into a plea agreement, wherein the defendant agrees to plead guilty and waive some or all of his appellate rights (including sometimes the right to pursue § 2255 relief) in exchange for the government's agreement to dismiss some of the charges pending against the defendant or to seek a lower sentence than the defendant could have faced had a judge or jury convicted him after a trial. After the defendant pleads guilty in the Rule 11 proceeding and the district court enters judgment, the case moves to the appellate phase.
*271 In preparation for the appellate phase of the case, an attorney in an appeal waiver case still owes important duties to the defendant. First and foremost, the attorney, as recognized in Flores-Ortega, has the duty to respect the appellate wishes of his client by filing a timely notice of appeal if he is unequivocally instructed to do so. 528 U.S. at 476, 120 S.Ct. 1029. Second, as further recognized in Flores-Ortega, even if his client does not express (or clearly express) a desire to appeal, the attorney may be required to file a timely notice of appeal after appropriate consultation with the his client. Id. at 478.[5]
If a notice of appeal is ultimately filed, an attorney has yet other duties owing to his client. These duties include examining the trial record and identifying and weighing potential issues for appeal. If the appropriate review reveals a meritorious issue for appeal, the attorney is ethically required to prepare a brief on the merits and argue the appeal. If the appropriate review reveals only frivolous issues, the attorney can file a brief in accordance with Anders v. California, 386 U.S. 738, 87 S.Ct. 1396, 18 L.Ed.2d 493 (1967).[6]
If a merits brief is filed, the government is free to: (1) raise the appeal waiver issue and argue that the appeal should be dismissed based on the waiver; (2) assert that it is no longer bound by the plea agreement because the defendant's appeal amounts to a breach of that agreement; or (3) decline to rely on the appeal waiver and address the merits, see United States v. Metzger, 3 F.3d 756, 757-58 (4th Cir.1993) (holding that, if the government has failed to assert the waiver as a bar to the appeal, the government waives reliance on the waiver). If an Anders brief is filed, the government is free to file a responsive brief raising the waiver issue (if applicable) or do nothing, allowing this court to perform the required Anders review. Of course, if the defendant files pro se submissions raising issues within the scope of the appeal waiver while his Anders brief is pending, the government is free to raise the waiver issue at that time. In either the case of a merits brief or the case of an Anders brief, the government receives the benefit of its bargain, as it is allowed to raise the appeal waiver issue if it so desires.
Following an unsuccessful appeal (or in the case of no appeal at all), the case moves on to the collateral phase, wherein the defendant may file a motion pursuant to § 2255. If the defendant raises issues covered by the appeal waiver, the government is free to argue that the district court's consideration of the issues are covered by the appeal waiver or that it is no longer bound by the plea agreement because the defendant is raising issues covered by the waiver. Cf. Williams v. United States, 396 F.3d 1340, 1342 (11th Cir.) (holding that a valid sentence-appeal waiver, entered into voluntarily and knowingly, pursuant to a plea agreement, precludes the defendant from attempting to attack, in a collateral proceeding, the sentence through a claim of ineffective assistance of *272 counsel during sentencing), cert. denied, 546 U.S. 902, 126 S.Ct. 246, 163 L.Ed.2d 226 (2005); United States v. White, 307 F.3d 336, 341-44 (5th Cir.2002) (same); Garcia-Santos v. United States, 273 F.3d 506, 508-09 (2d Cir.2001) (same); Davila v. United States, 258 F.3d 448, 451-52 (6th Cir.2001) (same); United States v. Cockerham, 237 F.3d 1179, 1183-87 (10th Cir. 2001) (same); Mason v. United States, 211 F.3d 1065, 1069-70 (7th Cir.2000) (same). The government can also ignore the appeal waiver and address the merits of the § 2255 motion. Thus, as in the context of an appeal, the government receives the benefit of its bargain on collateral review, as it is allowed to raise the appeal waiver issue if it so desires.
In this particular case, the government is seeking more than it bargained. It wants Poindexter to lose his right to appeal.[7] The government also wants Poindexter to lose altogether the assistance of counsel at the important stage of determining whether to pursue an appeal.[8] The government wants all of this even though, if Poindexter is ultimately allowed to appeal, the government will still receive the benefit of its bargain, as it will be able to raise the appeal waiver issue on appeal.
We have refused to enforce appeal waivers in cases that involve errors that the defendant "could not have reasonably contemplated" when the plea agreement was executed. Blick, 408 F.3d at 172. At the time he executed the plea agreement, it cannot be said that, by agreeing to waive his right to appeal his sentence, Poindexter was agreeing to waive the right to the effective assistance of counsel in pursuing an appeal. To hold otherwise, we would have to conclude that, at the time he executed the plea agreement, Poindexter was agreeing to forego an appeal altogether. Obviously, we are not at liberty to intimate such a conclusion, which would undermine the Supreme Court's holdings in Flores-Ortega and Anders.
The government also argues that, if we place limits on a district court's ability to dismiss a meritless § 2255 motion, the number of § 2255 motions filed in the district courts will dramatically increase. With all due respect to the position taken by the government, we do not see the workload of our district courts increasing. Under our approach, when a defendant brings a § 2255 claim based on his attorney's failure to file a requested notice of appeal, the district court should hold a hearing if it is unclear in the record whether the attorney was so instructed. Under the government's approach, a defendant is free to file a § 2255 motion, but the motion is subject to dismissal at that time if the court finds that any appeal would have been covered by the appeal waiver or if the court finds that the issues raised in the motion are meritless. In both instances, the court is burdened by the filing of a § 2255 motion. Moreover, we are skeptical that a simple evidentiary hearing is more complicated than a merits assessment *273 of every issue raised in the § 2255 motion.
III
Our decision today is consistent with the four United States Courts of Appeal that have concluded that an attorney renders constitutionally ineffective assistance of counsel if he fails to follow his client's unequivocal instruction to file a notice of appeal even though the defendant may have waived his right to appeal. See Sandoval-Lopez, 409 F.3d at 1195-99 (concluding that an ineffective assistance of counsel claim is established where an attorney fails to file a requested notice of appeal even where a waiver of appeal is present); see also Campusano v. United States, 442 F.3d 770, 772-77 (2d Cir.2006) (same); Gomez-Diaz v. United States, 433 F.3d 788, 791-94 (11th Cir.2005) (same); United States v. Garrett, 402 F.3d 1262, 1265-67 (10th Cir.2005) (same). In each of these cases, the court concluded, as we do today, that its decision was compelled by the Supreme Court's decision in Flores-Ortega. See Campusano, 442 F.3d at 773-77; Sandoval-Lopez, 409 F.3d at 1197; Garrett, 402 F.3d at 1266; Gomez-Diaz, 433 F.3d at 793-94. These cases also recognize, as we do, that most successful § 2255 movants in the appeal waiver situation obtain little more than an opportunity to lose at a later date. See, e.g., Campusano, 442 F.3d at 777. As the court noted in Campusano, "[t]here will not be many cases in which a defendant whose attorney fails to file a notice of appeal after a plea agreement and a waiver of appeal, and whose hypothetical appeal seems meritless during ineffective-assistance habeas review, eventually prevails." Id. However, as rare as those instances might be, we cannot take the easy road, say, by conducting our own independent merits review of Poindexter's claims. Cf. Garrett, 402 F.3d at 1265-66 ("Allowing the defendant to proceed in spite of unpersuasive pro se arguments is not a matter of formalistic compliance with a technical rule merely postponing the inevitable denial of relief on the merits. . . . Rather, it serves to safeguard [ ] important interests with concrete and potentially dispositive consequences which can be guaranteed only by the direct-appeal process and the concomitant right to counsel.") (citation and internal quotation marks omitted).
In sum, we hold that an attorney is required to file a notice of appeal when unequivocally instructed to do so by his client, even if doing so would be contrary to the plea agreement and harmful to the client's interests. In this case, although there is a real possibility that Poindexter will face a higher sentence or even charges related to the January 21, 2001 incident if he decides to appeal, his right to appeal cannot be thwarted by attorney error.
Accordingly, the district court's order denying Poindexter's § 2255 motion is vacated, and the case is remanded with instructions to hold an evidentiary hearing to determine whether Poindexter unequivocally instructed his attorney to file a notice of appeal. If his attorney was so instructed, Poindexter is to be allowed a direct appeal. If his attorney was not so instructed, the court will have to determine if Poindexter met his burden of showing that: (1) his attorney had a duty to consult under Flores-Ortega; (2) his attorney failed to fulfill his consultation obligations; and (3) he was prejudiced by his attorney's failure to fulfill these obligations.
VACATED AND REMANDED
NOTES
[1] The City of Baltimore also agreed not to charge Poindexter with any offenses related to the January 22, 2001 incident.
[2] In relevant part, the appeal waiver contained in the plea agreement provides:
[Poindexter] . . . knowingly and expressly waive[s] all rights conferred by 18 U.S.C. Section 3742 to appeal whatever sentence is imposed, including any issues that relate to the establishment of the guideline range, reserving only the right to appeal from an upward . . . departure from the guideline range that is established at sentencing. Nothing in this agreement shall be construed to prevent [Poindexter] . . . from invoking the provisions of Federal Rule of Criminal Procedure 35, and appealing from any decision thereunder, should a sentence be imposed that exceeds the statutory maximum allowed under the law. . . .
(J.A. 39).
[3] In his § 2255 motion, Poindexter also challenged the voluntariness of his plea and the sufficiency of the evidence. He also presented a claim of prosecutorial misconduct and put forth other claims of ineffective assistance of counsel.
[4] In contrast to Poindexter's insistence that he instructed his attorney to file a timely notice of appeal, there is evidence in the record suggesting the opposite is true. In a February 16, 2005 letter to Poindexter, his attorney denied that he was instructed by Poindexter to file a notice of appeal.
[5] As recognized by the Court in Flores-Ortega, "the better practice is for counsel routinely to consult with the defendant regarding the possibility of an appeal." 528 U.S. at 479, 120 S.Ct. 1029.
[6] Anders requires that: (1) appointed counsel who seeks to withdraw because no nonfrivolous issues exist for review must submit a brief referencing anything in the record that arguably could support an appeal; (2) a copy of that brief be furnished to the defendant; and (3) after providing the defendant with an opportunity to respond, the appellate court must conduct an independent and complete examination of the proceedings to determine if further review is merited. 386 U.S. at 744, 87 S.Ct. 1396.
[7] The government seeks this even though, at the time the parties executed the plea agreement, the parties understood that an appeal was possible, at a minimum, attacking either the judgment of conviction or the validity of the plea. As noted earlier, the waiver executed by Poindexter only applied to issues related to his sentence.
[8] Under the Federal Rules of Appellate Procedure, a defendant has ten days to appeal following the entry of judgment. Fed. R.App. P. 4(b)(1)(A). The ten-day period is mandatory and jurisdictional. United States v. Robinson, 361 U.S. 220, 224, 80 S.Ct. 282, 4 L.Ed.2d 259 (1960). The assistance of counsel is essential to the defendant during this ten-day period, because it is through the assistance of counsel that the defendant can make an informed decision concerning whether there are viable issues to raise on appeal.
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COURT OF APPEALS OF VIRGINIA
Present: Judges Willis, Bumgardner and Agee
Argued by teleconference
DERRICK EUGENE BALDWIN
MEMORANDUM OPINION * BY
v. Record No. 2722-00-3 JUDGE RUDOLPH BUMGARDNER, III
MAY 7, 2002
COMMONWEALTH OF VIRGINIA
FROM THE CIRCUIT COURT OF THE CITY OF ROANOKE
Robert P. Doherty, Jr., Judge
Randy V. Cargill (Magee, Foster, Goldstein &
Sayers, P.C., on brief), for appellant.
Robert H. Anderson, III, Senior Assistant
Attorney General (Mark L. Earley, Attorney
General, on brief), for appellee.
The trial court revoked Derrick Eugene Baldwin's suspended
sentence and sentenced him to seven years in prison. It
re-suspended four years on the condition that he complete two
years probation upon his release and pay court costs. The
defendant contends the trial court lacked jurisdiction to revoke
his suspended sentence. For the following reasons, we affirm.
On July 9, 1996, the defendant was convicted of possession
of cocaine with intent to distribute and sentenced to seven
* Pursuant to Code § 17.1-413, this opinion is not
designated for publication.
years in prison. 1 The trial court suspended the entire sentence
but prescribed no period of suspension. It suspended three
years on the condition that the defendant complete the Detention
Center Incarceration Program and that he complete two years of
probation upon release from incarceration. The defendant
entered and completed the detention program December 20, 1996.
His period of probation ran through December 20, 1998.
In the spring of 1998, the defendant's probation officer
requested a show cause order because of subsequent convictions
and other probation violations. The trial court issued a capias
for the defendant's arrest on April 24, 1998. It was not served
on the defendant until August 11, 2000. On November 9, 2000,
the trial court found the defendant violated the conditions of
the suspended sentence and of probation, and it revoked his
suspension.
1
The 1996 sentencing order is not a part of the record.
The appendix reflects the trial judge reading from the order as
follows:
In this case it says, "Sentenced to pay
$100 fine, which fine is suspended,
committed to the Department of Corrections
for a period of seven years, to be suspended
after he has served three years, plus costs,
and that three years is further suspended
upon the Defendant's transfer to the
Detention Center, and placed on probation
conditioned that he enter into and
successfully complete the Detention Center
Incarceration Program, successful completion
of the program, successfully complete
probation, be of good behavior," and so on.
- 2 -
Code § 19.2-306 provides:
The court may, for any cause deemed by it
sufficient which occurred at any time within
the probation period, or if none, within the
period of suspension fixed by the court, or
if neither, within the maximum period for
which the defendant might originally have
been sentenced to be imprisoned, revoke the
suspension of sentence and any probation, if
the defendant be on probation, and cause the
defendant to be arrested and brought before
the court . . . within one year after the
maximum period for which the defendant might
originally have been sentenced to be
imprisoned, whereupon, in case the
imposition of sentence has been suspended,
the court may pronounce whatever sentence
might have been originally imposed.
(Emphasis added.)
The original sentence suspended execution of the
defendant's sentence for an unspecified period. Under Code
§ 19.2-306, the trial court could revoke that suspended sentence
during a period of the maximum prescribed sentence plus one
year. Carbaugh v. Commonwealth, 19 Va. App. 119, 123-24, 449
S.E.2d 264, 266 (1994). The maximum sentence for the original
offense was forty years. Code § 18.2-248(C). The trial court's
action occurred well within the prescribed period of forty-one
years. Therefore, the trial court had jurisdiction to act as it
did, and we affirm.
Accordingly, the defendant's argument is without merit, and
the trial court's judgment is affirmed.
Affirmed.
- 3 -
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IN THE SUPREME COURT OF MISSISSIPPI
NO. 2017-CT-00607-SCT
CHASITY ANDERSON
v.
DARNICE WIGGINS
ON WRIT OF CERTIORARI
DATE OF JUDGMENT: 11/29/2016
TRIAL JUDGE: HON. JOHN S. GRANT, III
TRIAL COURT ATTORNEYS: JAMES B. GRENFELL
JAMES N. SCARFF, II
DREW MARTIN
GRETA KEMP
COURT FROM WHICH APPEALED: RANKIN COUNTY CHANCERY COURT
ATTORNEY FOR APPELLANT: JAMES N. SCARFF, II
ATTORNEYS FOR APPELLEE: THOMAS J. LOWE, JR.
JAMES B. GRENFELL
NATURE OF THE CASE: CIVIL - TORTS-OTHER THAN PERSONAL
INJURY & PROPERTY DAMAGE
DISPOSITION: REVERSED AND REMANDED - 02/20/2020
MOTION FOR REHEARING FILED:
MANDATE ISSUED:
EN BANC.
COLEMAN, JUSTICE, FOR THE COURT:
¶1. The Rankin County Chancery Court granted summary judgment in favor of Darnice
Wiggins in a conversion case she brought against Chasity Anderson, the fiancée of Wiggins’s
deceased son Jhonte Sanders. As the basis for granting summary judgment, the chancellor
determined that Anderson failed to establish a genuine issue of material fact. Anderson
appealed, and the Court of Appeals deadlocked in a 5-5 decision. Once the Court of Appeals
denied her motion for rehearing, Anderson filed a petition for writ of certiorari, and we
granted it. Accordingly, we reverse the Court of Appeals’ judgment, and we remand the case
for further proceedings.
FACTS AND PROCEDURAL HISTORY
¶2. Sanders and Anderson met each other while serving in the military in 2009. The two
lost touch with one another. In 2011, Sanders was diagnosed with leukemia while living in
Chicago, Illinois. In May 2013, Sanders reconnected with Anderson online. Sanders then
moved to Rankin County and continued his chemotherapy treatment at University of
Mississippi Medical Center (UMMC). After suffering multiple seizures in 2014, Sanders
required hospitalization. Following his hospitalization, Wiggins, Sanders’s mother, moved
to Jackson, Mississippi, and became his primary caregiver. On November 14, 2014, UMMC
transferred Sanders to Methodist Rehabilitation Center (Methodist) in Jackson, Mississippi,
for two weeks of rehabilitative treatment. Dr. Clea Evans is a neuropsychologist at
Methodist in Jackson, Mississippi, and was a part of a team that treated Sanders the fourteen
days he was there. Methodist released Sanders on November 28, 2014. However, Sanders
continued outpatient rehabilitative-speech-therapy treatments from December 1, 2014,
through January 2015. On December 19, 2014, Sanders settled a personal-injury claim and
received a monetary settlement in excess of $350,000. Sanders made multiple transfers of
those settlement funds to Anderson.
¶3. Sanders died soon after the transfer of his funds. Following Sanders’s death, the
Rankin County Chancery Court appointed Wiggins, Sanders’s mother, administratrix of his
2
estate. Wiggins filed a “Complaint for Conversion” against Anderson. Though other
transactions occurred, the crux of Wiggins’s conversion complaint revolved around transfers
Sanders made after his personal-injury settlement. In support of her conversion claim,
Wiggins alleged that Anderson was aware of Sanders’s pending settlement, that Sanders
qualified as a vulnerable adult, and that Anderson either unduly influenced him to transfer
the funds or utilized her position of trust to take advantage of him while he was a vulnerable
adult. Wiggins also alleged that “at all times complained of herein, . . . Sanders was in a
constant state of confusion . . . and did not have the mental capacity to manage his money nor
make cognizant decisions which were in his best interest.” After filing the complaint,
Wiggins sent Anderson requests for admissions. Anderson failed to respond to the requests,
and the chancery court deemed them admitted. Wiggins then filed a motion for summary
judgment.
¶4. During the summary judgment hearing, Wiggins offered multiple exhibits into
evidence, including an affidavit from neuropsychologist, Dr. Evans. Wiggins argued that the
court should grant her motion because Anderson’s admissions, the established facts, and Dr.
Evans’s affidavit proved that no genuine issue of material fact existed. The chancellor
agreed and granted summary judgment, reasoning that the pleadings, answers to discovery
and requests for admission, together with the affidavit of Dr. Evans showed no genuine issue
of material fact.
¶5. Anderson appealed, and we assigned the case to the Court of Appeals. Looking to the
admissions, the established facts, and Dr. Evans’s affidavit, the prevailing opinion of the
3
court reasoned that Wiggins had supported her conversion claim by arguing that Sanders was
a vulnerable adult. Anderson v. Wiggins, No. 2017-CA-00607-COA, 2019 WL 2098392,
at *5 (¶ 21) (Miss. Ct. App. May 14, 2019). De facto affirming the chancery court’s decision
by a 5-5 vote, the prevailing opinion wrote that Anderson’s failure to respond to the motion
for summary judgment meant she rested upon her allegations, and those were insufficient to
show there was a genuine dispute of material fact. Id. at *6 (¶ 24).
¶6. Following the denial of Anderson’s motion for rehearing, she filed a petition for
certiorari review, and we granted it.
STANDARD OF REVIEW
¶7. “We employ a de novo standard of review of a trial court’s grant or denial of a
summary judgment and examine all the evidentiary matters before it—admissions in
pleadings, answers to interrogatories, depositions, affidavits, etc.” Foster v. Williams (In
re Estate of Laughter), 23 So. 3d 1055, 1060 (¶ 17) (Miss. 2009) (quoting Bullock v. Life
Ins. Co., 872 So. 2d 658, 660 (¶ 6) (Miss. 2004)). “The evidence must be viewed in the light
most favorable to the party against whom the motion has been made, and the moving party
bears the burden of demonstrating that no genuine issue of material fact exists.” Moore v.
Delta Reg’l Med. Ctr., 23 So. 3d 541, 544 (¶ 7) (Miss. Ct. App. 2009) (citing Heigle v.
Heigle, 771 So. 2d 341, 345 (¶ 8) (Miss. 2000)). If there is no genuine issue of material fact,
then “the moving party is entitled to judgment as a matter of law . . . .” Heigle, 771 So. 2d
at 345 (¶ 8) (quoting Miss. Dep’t of Wildlife, Fisheries & Parks v. Miss. Wildlife Enf’t
Officers’ Ass’n, Inc., 740 So. 2d 925, 930 (¶ 11) (Miss. 1999)). “On the other hand, ‘[i]f
4
there is doubt as to whether or not a fact issue exists, it should be resolved in favor of the
non-moving party.’” Neely v. N. Miss. Med. Ctr., Inc., 996 So. 2d 726, 729 (¶ 11) (Miss.
2008) (quoting Aetna Cas. & Sur. Co. v. Berry, 669 So. 2d 56, 70 (Miss. 1996) overruled
on other grounds by Owen v. Miss. Farm Bureau Cas. Ins. Co., 910 So. 2d 1065 (Miss.
2005)).
DISCUSSION
¶8. Anderson’s petition for writ of certiorari raises two issues. First, Anderson argues
that the chancery court erred by affirming the grant of summary judgment, and the Court of
Appeals erred by failing to reverse. Anderson also argues that Wiggins lacked evidence to
prove that Sanders was a vulnerable adult.
¶9. “[T]he threshold for summary judgment is high and requires that ‘the pleadings,
depositions, answers to interrogatories and admissions on file, together with the affidavits,
. . . show that there is no genuine issue as to any material fact . . . .’” Stuckey v. The
Provident Bank, 912 So. 2d 859, 864 (Miss. 2005) (¶ 8) (quoting Miss. R. Civ. P. 56(c)).
A fact is material if it “tends to resolve any of the issues properly raised by the parties.”
Ladnier v. Hester, 98 So. 3d 1025, 1028 (¶ 10) (Miss. 2012) (internal quotation marks
omitted) (quoting Moss v. Batesville Casket Co., Inc., 935 So. 2d 393, 398 (¶ 16) (Miss.
2006)). “If any triable facts exist, the lower court’s grant of a summary judgment will be
reversed; otherwise the decision will be affirmed.” Stuckey, 912 So. 2d at 864 (¶ 8)
(emphasis added) (internal quotation marks omitted) (quoting Miller v. Meeks, 762 So. 2d
5
302, 304 (¶ 3) (Miss. 2000)). Judge Tindell’s dissent in Anderson v. Wiggins explained
which party bears the burden of production and proof:
In a summary[-]judgment hearing, the burden of producing evidence in
support of, or in opposition to, the motion is a function of Mississippi rules
regarding the burden of proof at trial on the issues in question. The movant
bears the burden of persuading the trial judge that: (1) no genuine issue of
material fact exists, and (2) on the basis of the facts established, [s]he is
entitled to [a] judgment as a matter of law. The movant bears the burden of
production if, at trial, [s]he would bear the burden of proof on the issue raised.
Anderson, 2019 WL 2098392, at *7 (¶ 34) (Tindell, J., dissenting) (quoting Palmer v. Biloxi
Reg’l Med. Ctr. Inc., 564 So. 2d 1346, 1355 (Miss. 1990)). “[B]ecause [d]efendants do not
carry any burden of production at trial, they also do not carry any burden of production at the
summary-judgment stage.” Karpinsky v. Am. Nat’l Ins. Co., 109 So. 3d 84, 89 (¶ 13) (Miss.
2013).
¶10. In Stuckey, the court reviewed a sworn complaint to determine if it constituted
evidence of triable issues of fact sufficient to defeat a motion for summary judgment.
Stuckey, 912 So. 2d at 864-65 (¶ 7). Stuckey had responded to a motion for summary
judgment with a sworn complaint, which contained a litany of allegations, after the moving
party had met its burden of persuasion. Id. at 866 (¶ 13). Stuckey relied solely on the sworn
complaint and argued it created a genuine issue of material fact. Id. Rejecting Stuckey’s
contention, the Court explained the provisions of Mississippi Rule of Civil Procedure 56(e)
in the context of whether a response to a motion for summary judgment is necessary. Id. at
867 (¶ 14). The Court reasoned,
The provisions of Rule 56(e) which caution practitioners that “they may not
rest upon the mere allegations or denials of [their] pleadings,” clearly do not
6
mandate a grant of summary judgment if there is no response to the summary
judgment motion; however, Rule 56(e) does caution that if the non-moving
party fails to respond, summary judgment, if appropriate, shall be entered
against [the non-moving party].
Id. at (¶ 15) (emphasis added).
¶11. Here, Wiggins bore the initial burden of establishing the nonexistence of issues of
material fact when she moved for summary judgment on her conversion claim. Wiggins
argued that Anderson’s failure to provide evidence of a genuine issue of material fact entitled
her to summary judgment as a matter of law.
¶12. “To establish a conversion, there must be proof of a wrongful possession, or the
exercise of a dominion in exclusion or defiance of the owner’s right, or of an unauthorized
and injurious use, or of a wrongful detention after demand.’” Evans v. Miss. Dep’t of
Human Servs., 36 So. 3d 463, 477 (¶ 59) (Miss. Ct. App. 2010) (emphasis added) (quoting
Cmty. Bank of Ellisville, Miss. v. Courtney, 884 So. 2d 767, 772–73 (¶ 10) (Miss. 2004)).
“[I]n order to maintain an action for conversion, there must have been, on the part of the
defendant, some unlawful assumption of dominion over the personal property [of the
plaintiff] . . . .” Wilson v. Gen. Motors Acceptance Corp., 883 So. 2d 56, 69 (¶ 51) (Miss.
2004) (emphasis added) (quoting First Inv’rs Corp. v. Rayner, 738 So. 2d 228, 234–35 (¶
27) (Miss. 1999)).
¶13. Here, the Court of Appeals focused on Wiggins’s vulnerable adult argument when
reviewing the chancery court’s granting of summary judgment and explained that “at issue
is whether Sanders qualifies as a vulnerable adult.” Anderson, 2019 WL 2098392, at *5 (¶
21). The Court of Appeals relied on Dr. Evans affidavit that explained that Sanders “did not
7
have the . . . mental capacity to realize he was transferring this large sum of money or any
money to Chasity Anderson or the consequences of his actions . . . .” Id. at *5 (¶ 23). The
Court of Appeals wrote that Anderson had more than sixty-eight days to respond to Wiggins
motion for summary judgment and failed to do so. Id. at *5 (¶ 23). Affirming the decision
of the chancery court, the Court of Appeals reasoned that “Anderson could not show that
there was a genuine dispute of material fact.” Id. at *5 (¶ 23). However, resting on mere
allegations or failing to respond to a motion for summary judgment does not mandate
granting the motion. Stuckey, 912 So. 2d at 864-65 (¶ 15); see also Dennis v. Searle, 457
So. 2d 941, 947 (Miss. 1984) (overruling a grant of summary judgment, finding that the
moving party failed to carry the required burden of establishing the nonexistence of genuine
issues of material fact; despite [the] non-moving party’s offering nothing to dispute the
motion for summary judgment), disagreed with on other grounds by Thornhill v. Sys. Fuels,
Inc., 523 So. 2d 983 (Miss. 1988)). Moreover, there is more than one genuine issue of
material fact here.
¶14. While vulnerability may be one issue, it is not the only one. The vulnerable adult
statute, Mississippi Code Section 11-7-165 (Rev. 2019), provides, in relevant part,
In a civil action where it is proven that a person took property having a value
of Two Hundred Fifty Dollars ($250.00) or more belonging to a vulnerable
adult by conversion, embezzlement, extortion, theft or fraud without the
owner’s consent, or obtained the owner’s consent by intimidation, deception,
undue influence or by misusing a position of trust or a confidential relationship
with the owner, then whether the action is to recover the property or damages
in lieu thereof, or both, damages shall be recoverable up to three (3) times the
amount of the monetary damages or value of the property embezzled,
converted or otherwise stolen, in addition to any other damages.
8
Miss. Code. Ann. § 11-7-165(1)(a) (Rev. 2019) (emphasis added).
¶15. The plain language of the statute sets out the factual elements of Wiggins’s claim.
Those issues are whether Wiggins—as the moving party—proved that: (1) Anderson; (2)
took property having a value of $250.00 or more (3) that belonged to Sanders, a vulnerable
adult, by (4) conversion, undue influence or by utilizing her position of trust to take
advantage of a vulnerable adult.
¶16. It is true that Wiggins supported her claim of conversion by producing evidence
showing that Sanders qualified as a vulnerable adult. Anderson, 2019 WL 2098392, at *5
(¶ 21). Indeed, as the plain language of the Vulnerable Adult Statute reveals, individuals can
make a complaint for conversion by proving that, among other things, an adult is vulnerable.
Miss. Code Ann. § 11-7-165 (Rev. 2019). In support of her motion for summary judgment,
Wiggins offered multiple exhibits:
Exhibit A: A copy of the complaint, which included copies of the
following: (1) a July 25, 2014 check for $12,295 to J&J Auto
Brokers signed by Sanders from his account; (2) a January 12,
2015 bank check for $100,072.73 to Anderson; (3) a January 23,
2015 bank check for $100,000 to Anderson; and (4) a Trustmark
National Bank gift letter signed by Sanders acknowledging that
Sanders was gifting $105,000 to Anderson for the purchase of
property located at 112 Saint Charles Avenue, Florence,
Mississippi 39073.
Exhibit B: A January 6, 2015 check for $500 to Remax Alliance signed by
Anderson from her account.
Exhibit C: A MLS listing for a house for sale located at 112 Saint Charles
Avenue, and the accompanying purchase contract executed on
January 6, 2015, for the same house for a purchase price of
$261,000.
9
Exhibit D: A warranty deed to Anderson dated February 5, 2015, for the
property at 112 Saint Charles Avenue.
Exhibit E: A judgment deeming requests for admissions admitted.
Exhibit F: Wiggins’s first set of requests for admissions propounded to
Anderson.
Exhibit G: Dr. Evans’s opinion and affidavit.
Exhibit H: Anderson’s answer to the complaint and affirmative defenses.
Anderson, 2019 WL 2098392, at *7 (¶ 36) (Tindell. J., dissenting).
¶17. Of all the transfers made, the crux of Wiggins’s complaint for conversion rests with
three:
1. On January 12, 2015, Sanders issued a check payable to Trustmark
Bank in the amount of $100,072.73;
2. A Trustmark National Bank gift letter signed by Sanders on January 22,
2015, acknowledged that he was gifting $105,000 to Anderson for the
purchase of property located at 112 Saint Charles Avenue, Florence,
Mississippi;
3. January 23, 2015: a bank check for $100,000, payable to Anderson
from Sanders account.
Wiggins averred that Anderson’s admissions and Dr. Evans’s opinion “remove[d] any
question of there being a factual dispute to be rendered by this Court.”
¶18. We agree with Judge Tindell’s dissent pertaining to Exhibits A through D. Judge
Tindell explained that “Exhibits A through D only offer evidence of financial transactions
made between or by Sanders and Anderson. . . . Sanders himself authorized the transactions
. . . .” Anderson, 2019 WL 2098392, at *8 (¶ 37) (Tindell, J., dissenting). Indeed, a review
10
of the record reveals no evidence that Anderson exercised “dominion in exclusion or
defiance of [Sanders’s] rights.” Evans v. Miss. Dep’t of Human Servs., 36 So. 3d 463, 477
(¶ 59) (Miss. Ct. App. 2010) (internal quotation mark omitted) (quoting Cmty. Bank of
Ellisville, Miss. v. Courtney, 884 So. 2d 767, 772–73 (¶ 10) (Miss. 2004)). Additionally,
there is no evidence in the record that Sanders demanded Anderson return the funds;
therefore, there can be “no wrongful detention after demand.” Id. (internal quotation mark
omitted) (quoting Courtney, 884 So. 2d at 772–73 (¶ 10)). Accordingly, as it pertains to her
claim of conversion at the summary judgment hearing, Wiggins bore the burden of
establishing Sanders’s vulnerability and that Anderson wrongfully converted and possessed
Sanders’s funds by means of undue influence.
¶19. To raise a presumption of undue influence, the contestant must show “the existence
of a confidential relationship between the testator and a beneficiary . . . , along with
suspicious circumstances.” Stover v. Davis, 268 So. 3d 559, 563 (¶ 12) (Miss. 2019) (citing
Croft v. Alder, 237 Miss. 713, 723, 115 So. 2d 683, 686 (1959)). “Th[e] Court has held in
numerous cases that the burden of establishing the existence of a confidential relationship
is upon the party asserting it.” West v. Johnson (In re Estate of Johnson), 237 So. 3d 698,
708 (¶ 27) (Miss. 2017) (internal quotation marks omitted) (quoting Norris v. Norris, 498
So. 2d 809, 813 (Miss. 1986)). Several factors are considered when determining whether a
confidential relationship exists:
(1) whether one person has to be taken care of by others, (2) whether one
person maintains a close relationship with another, (3) whether one person is
provided transportation and has their medical care provided for by another, (4)
whether one person maintains joint accounts with another, (5) whether one is
11
physically or mentally weak, (6) whether one is of advanced age or poor
health, and (7) whether there exists a power of attorney between the one and
another.
Dabney v. Hataway (In re Estate of Dabney), 740 So. 2d 915, 919 (¶ 12) (Miss. 1999).
However, in another case, the Court explained,
A presumption of undue influence is not raised merely because a beneficiary
occupies a confidential relationship with the testator; something more is
required, such as active participation by the beneficiary in the procurement,
preparation or execution of the will or mental infirmity of the testator.
In other words, there must be some showing that [the beneficiary] abused the
relationship either by asserting dominance over the testator or by substituting
her intent for that of [the testator].
Gallaspy v. Gallaspy (In re Will of Wasson), 562 So. 2d 74, 78 (Miss. 1990) (quoting Simm
v. Adams (In re Will of Adams), 529 So. 2d 611, 615 (Miss. 1988)).
¶20. To prove her claim of conversion by undue influence, Wiggins relied on Anderson’s
admissions and the affidavit of Dr. Evans. As to the first element of a confidential
relationship, Sanders undoubtedly needed care given to him by others. Importantly, Wiggins
proclaimed that she “was the primary care giver[,] as she basically to moved to Jackson,
Mississippi, in the fall of 2014 where she cared for and was present . . . for over three (3)
months.” Moreover, there is evidence of Sanders’s deteriorating health. As it pertains to
Anderson and Sanders’s relationship, Wiggins’s complaint explains that the two
“reconnected online.” The admissions do prove that the day Sanders signed the gift letter,
Anderson’s mother drove him from the hospital to Anderson’s place of employment.
However, the nature of that transaction and its circumstances are unknown. Additionally,
12
there is no proof that Anderson and Sanders shared a joint account or that a power of attorney
for Sanders existed.
¶21. Weighing these factors raises doubt about whether there was a confidential
relationship between Sanders and Anderson. Even assuming a confidential relationship
exists, there is no proof in the record as to what extent, if any, Anderson participated in the
procurement, preparation, or execution of the transfers. Accordingly, we hold that Wiggins
failed to prove, at the summary judgment hearing, that Anderson wrongfully converted
Sanders’s funds by means of undue influence.
¶22. Anderson’s second argument is that there is a lack of evidence as to whether Sanders
qualified as a vulnerable adult. Like her conversion argument, Wiggins relied on Anderson’s
admissions and Dr. Evans’s affidavit to support her contention that Sanders was a vulnerable
adult and lacked the mental capacity necessary to understand the transfers he made. Wiggins
also argued that Anderson took advantage of her position of trust with Anderson when he
was vulnerable. Wiggins averred that Sanders “was in a constant state of confusion and did
not have the mental capacity to manage his money nor make cognizant decisions which were
in his best interest.” Mississippi Code Section 43-47-5(q) (Rev. 2015) defines a “vulnerable
person” as
[A] person, whether a minor or adult, whose ability to perform the normal
activities of daily living or to provide for his or her own care or protection
from abuse, neglect, exploitation or improper sexual contact is impaired due
to a mental, emotional, physical or developmental disability or dysfunction, or
brain damage or the infirmities of aging.
Miss. Code Ann § 43-47-5(q) (Rev. 2015).
13
¶23. Assuming Sanders is a vulnerable adult “does not mean that the individual is
incompetent to transfer his or her assets to another.” Anderson, 2019 WL 2098392, at *9
(¶ 41) (Tindell, J., dissenting). Incapacity requires a showing that the person either “(1) did
not understand the legal consequences of his actions; (2) suffered from a general ‘weakness
of intellect’ with either inadequate consideration given for the transfer, or a confidential
relationship; or (3) suffered from permanent insanity up to and after the date of execution.”
Van Quinn v. Quinn, 278 So. 3d 1160, 1166 (¶ 23) (Miss. Ct. App. 2019) (quoting Smith
v. Smith, 574 So. 2d 644, 653-54 (Miss. 1990)). Except for permanent insanity, the critical
time for determining capacity is the transfer date. Smith, 574 So. 2d at 653.
¶24. In In re Estate of Laughter, the Court sought to determine whether a testator had
testamentary capacity to make an inter vivos gift to his wife. In re Estate of Laughter, 23
So. 3d at 1061 (¶ 18). The court explained that “[t]he mere fact that someone is too ill to
handle his affairs does not in and of itself render him mentally incompetent or void of
testamentary capacity.” Id. at (¶ 22). “Th[e] Court recognize[d] that mental incapacity or
insanity, ‘is not always permanent, and a person may have lucid moments or intervals when
that person possesses necessary capacity to convey property.’” Whitworth v. Kines, 604 So.
2d 225, 229 (Miss. 1992) (quoting Smith, 574 So. 2d at 653). “[T]he testator must be of
‘sound and disposing mind’ at the time of . . . execution.” Noblin v. Burgess, 54 So. 3d 282,
291 (¶ 32) (Miss. Ct. App. 2010) (quoting Miss. Code Ann. § 91-5-1 (Rev. 2004)). “The
requirement of a sound and disposing mind does not mean the testator’s mind must be as
good as it ever was.” Noblin, 54 So. 3d at 291 (¶ 32).
14
¶25. In Edwards v. Edwards (In re Estate of Edwards), 520 So. 2d 1370 (Miss. 1988), the
Court considered similar facts. On September 30, 1982, Jimmie Edwards, the testator, and
his son, Jerry, drove to their lawyer’s firm to draw up a new will. Id. at 1371. Jimmie
created the will and he and Jerry proceeded to the bank where two individuals witnessed the
will’s execution. Id. at 1371-72. After Jimmie’s death, Loree, Jimmie’s wife, contested the
validity of the will, arguing undue influence and a lack of testamentary capacity. Id. Loree
relied on the testimony of Jimmie’s doctors, who were not present during the will’s execution
on September 30, 1982. Id. The doctors testified that, based on their previous examinations,
Jimmie’s mental capacity would have been substantially impaired by the date Jimmie
executed the will due to previous “chronic mental problems.” Id. However, the two
witnesses that personally observed Jimmie’s execution of the will testified that they found
Jimmie “sane and sober,” explaining that they “noticed nothing unusual” about the testator.
Id.
¶26. Though the chancery court found no undue influence, the Edwards Court reversed the
court’s finding that Jimmie lacked the requisite testamentary capacity. Id. at 1373. The
Edwards Court explained that capacity “is to be tested as of the date of execution of the
will.” In re Estate of Edwards, 520 So. 2d 1370, 1372 (Miss. 1988) (internal quotation
marks omitted) (quoting Scally v. Wardlaw, 123 Miss. 857, 878, 86 So. 625, 626 (1920)).
The Court noted that the chancellor leaned heavily on the testimony of the doctors whose
most recent examination of Jimmie had occurred more than one year before. In re Estate of
Edwards, 520 So. 2d at 1373. The Court explained that
15
[W]hether Jimmie D. Edwards possessed testamentary capacity when attended
by his physicians months before the will’s execution, is irrelevant to the issue
before us; rather, we are concerned with his testamentary capacity on
September 30, 1982. Recognizing that a testator may not always possess
testamentary capacity, we have held that he may nevertheless execute a valid
will during a lucid interval.
Id. (citing Lee v. Lee, 337 So. 2d 713, 715 (Miss. 1976); Gholson v. Peters, 180 Miss. 256,
267, 176 So. 605, 606 (1937); Lum v. Lasch, 93 Miss. 81, 87, 46 So. 559 (1908)).
¶27. Here, Wiggins argues that Dr. Evans’s opinion supports a finding that Sanders lacked
the requisite capacity to transfer his assets. Dr. Evans is a neuropsychologist at Methodist
in Jackson, Mississippi, and was a part of a team that treated Sander the fourteen days he was
there. Sanders’s treatment dates ranged from November 14, 2014, to November 28, 2014.
While at Methodist, Dr. Evans observed Sanders’s “aberrant behavior and neurological
seizures.” She also opined that Sanders was on multiple medications, some of which could
have affected his mental capacity and cognitive deficits. Dr. Evans opined that “at the time
of discharge from Methodist, Sanders was weak, ill and had cognitive impairments which
classified him as a vulnerable adult under the laws of the State of Mississippi.”
¶28. When it came to formulating a medical opinion regarding Sanders’s mental capacity
at the time of the January 2015 transfers, Dr. Evans referenced her previous interactions with
Sanders and medical notes taken by a speech pathologist during Sanders’s outpatient-
rehabilitation services. The outpatient services continued from December of 2014 through
January of 2015. Looking to the January 12, 2015 transfer, Dr. Evans relied upon a review
of the therapist’s notes taken on January 13, 2015, which stated that Sanders was “having
trouble remembering to take his medications.” Dr. Evans opined, to a reasonable degree of
16
neuropsychological/medical probability, that Sanders did not have the cognitive ability or
mental capacity to realize he was transferring large sums of money. As for the January 22,
2015 transactions, it appears that Dr. Evans relied on the therapist’s notes taken four days
earlier to reach the same conclusion. However, Dr. Evans opined she reviewed notes taken
by the speech pathologist on the same day that Sanders signed the gift letter. The therapist’s
notes explained that “[Sanders] showed delays in speed of processing and needed assistance
(cues) when working on executive functioning exercises with regard to reasoning and
problem solving.”
¶29. Nowhere in Dr. Evans’s affidavit does she state that Sanders was incompetent or
insane. Because Dr. Evans did not claim that Sanders was incompetent or insane, we need
not concern ourselves with Sanders’s capacity when attended by his physicians months or
even days before he made the transfers. Therefore, the critical date for determining
Sanders’s capacity to transfer his funds is the transfer dates. Smith v. Smith, 574 So. 2d 644,
653 (Miss. 1990) (explaining that the critical time for determining the capacity of someone
who suffers from a weakness of intellect or great weakness of mind is the date of execution).
Accordingly, there must be a showing that Sanders either “did not understand the legal
consequences of his actions” or that he “suffered from a ‘general weakness of intellect’ [and
had] a confidential relationship” with Anderson. Van Quinn, 278 So. 3d at 1166 (¶ 23)
(quoting Smith, 574 So. 2d at 653-54).
¶30. Taking Dr. Evans’s affidavit as true and assuming Dr. Evans did review notes taken
on the same day that Sanders signed the gift letter does not necessarily mean that he was
17
unable to understand the legal consequence of his actions. The record contains no evidence
of the level of difficulty as it pertains to the “executive functioning exercises” that Sanders
supposedly performed on the day he signed his gift letter. In fact, there is no proof that these
exercises pertained to Sanders testamentary capacity. Moreover, even if these exercises
prove that Sanders suffered from a general “weakness of intellect,” Anderson’s admissions
do not establish a confidential relationship. Though Dr. Evans’s opinion provides a plethora
of persuasive facts, it, at most, establishes that Sanders may have qualified as a vulnerable
adult the day of the transfers. However, it is unclear that Dr. Evans properly understood the
legal term “testamentary capacity.”
¶31. At its core, the case sub judice arose from a conversion claim. Assuming Sanders
qualified as a vulnerable adult does not prove that Anderson wrongfully obtained Sanders’s
funds by means of undue influence. Of the three main transfers made, we only know that
Anderson’s mother drove Sanders to Anderson’s place of employment to sign the gift letter.
We know nothing of the surrounding facts and circumstances as it pertains to the other
transfers made.
¶32. The Court of Appeals opinions both make reasonable arguments. However, genuine
issues of material fact remain unresolved. “If there is doubt as to whether or not a fact issue
exists, it should be resolved in favor of the nonmoving party.” Neely, 996 So. 2d at 729 (¶
11). Here, doubt remains as to whether Anderson wrongfully converted Sanders’s funds.
CONCLUSION
18
¶33. The Chancery Court erred by granting the motion for summary judgment. Viewing
the evidence in the light most favorable to the nonmoving party leaves genuine issues of
material fact unresolved. Accordingly, the Court reverses the judgments of the Rankin
County Chancery Court and of the Court of Appeals and remands the case to the chancery
court for further proceedings.
¶34. REVERSED AND REMANDED.
RANDOLPH, C.J., KITCHENS AND KING, P.JJ., MAXWELL, BEAM,
CHAMBERLIN, ISHEE AND GRIFFIS, JJ., CONCUR.
19
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"pile_set_name": "FreeLaw"
} |
330 S.W.3d 132 (2010)
Brett L. JOHNSON, Appellant,
v.
STATE of Missouri, Respondent.
No. WD 71057.
Missouri Court of Appeals, Western District.
December 7, 2010.
Motion for Rehearing and/or Transfer to Supreme Court Denied February 1, 2011.
*134 Susan L. Hogan, Kansas City, MO, for appellant.
Shaun J. Mackelprang and Karen L. Kramer, Jefferson City, MO, for respondent.
Before Division One: JAMES M. SMART, JR., P.J., MARK PFEIFFER, and CYNTHIA L. MARTIN, JJ.
PER CURIAM:
Brett L. Johnson appeals the denial of his Rule 29.15 motion for post-conviction relief following an evidentiary hearing in which he sought to vacate his convictions for first-degree murder and armed criminal action. He contends that the motion court clearly erred in denying his claims of ineffective assistance of trial and appellate counsel. The judgment is affirmed.
Background
The State charged Brett Johnson with first-degree murder, section 565.020,[1] and armed criminal action, section 571.015, for his part in the stabbing death of sixteen-year-old Jimmy Weber. The cause went to trial before a jury, and the following evidence was presented.
In the fall of 1999, Johnson and some friends were planning an armed robbery of a local grocery store. They asked their friend Jimmy Weber to drive the "get-away" car, but he declined. At some point, Weber told the group that he had thrown away the stolen shotgun that they *135 planned to use in the robbery.[2] Johnson and his co-conspirator, James Boyd, were angry about this and grew concerned that Weber would tell the police about the planned robbery. The two devised a plan to lure Weber into the woods and kill him.
On Saturday night, September 25, 1999, Johnson and Boyd were riding around with two other friends, Lindsay Harper and Adam Lile, in Lile's vehicle. They drove to Searcy Creek Parkway, and Johnson told Lile to pull over. Johnson and Boyd got out of the car and walked to a spot near where the group would later rendezvous and flee the murder scene. At Johnson's suggestion, Lile then drove the group to Weber's home, and Weber joined them. They drove to a wooded area near some townhouses where Johnson had lived as a child. Johnson suggested that they all go into the woods where he often had played. Harper and Weber were reluctant but eventually agreed. Johnson led the group into the woods. Boyd, Lile, and Weber stopped near the top of a hill, but Johnson kept walking. Harper also stopped, unsure of what to do. Johnson told her to come with him, and she followed him.
Johnson and Harper stopped when they reached a clearing. Harper then heard Weber pleading for his life and crying. She asked Johnson what was happening, and Johnson said, "You know Jimmy's not coming out of the woods tonight." Lile saw Boyd pull a knife out from the waist of his pants and begin stabbing Weber. Boyd stabbed Weber a total of twenty-eight times in the neck, chest, abdomen, back, and arms while Weber pleaded for his life.
Boyd and Lile then joined Johnson and Harper in the clearing, and Boyd said, "It's done. Let's go." Johnson asked Boyd, "What happened?" and Boyd said, "Jimmy's going to go the other way. Let's go." Boyd and Johnson disagreed about which direction to go. At Johnson's insistence, they walked back the same way they had come "to avoid leaving a trail." As they walked past Weber lying on the ground, Harper heard Johnson say, "there's our boy," and Lile heard Johnson ask if anyone wanted a new pair of shoes. Weber then gasped, and the group ran from the scene. When they stopped, Johnson said he would go get the car. The group waited for Johnson atop a hill near Searcy Creek Parkway (a different spot from where they had entered the woods). Johnson drove around to that location and picked them up. As they drove off, Johnson told the group that they needed alibis. He told Harper and Lile what their alibis should be.
The next day, another acquaintance, Aaron Clary, stopped by Johnson's house. Boyd was there with Johnson. Boyd and Johnson had shared a duplex with Clary earlier that summer. When Clary asked about Weber, Johnson told him Weber was "underground." Clary did not know what that meant. At Johnson's request, Clary agreed to let Boyd stay with him that night.
On the way to Clary's residence, Boyd told Clary that he had killed Jimmy Weber and left his body in the woods. Boyd said he and Johnson planned the murder; Lile was there to prevent Weber from running and Harper was there to make Weber feel comfortable about going into the woods with them. Boyd told Clary that he and Johnson's brother, Branden, had tried unsuccessfully to bury the body. He asked Clary to help him bury the body. Clary told Boyd he did not believe his story. The next day, Monday, Boyd led Clary *136 into the woods and showed him Weber's body.
When Clary was able to extricate himself from Boyd, he went to see his attorney. Clary told his attorney what he had seen, and the attorney called the Clay County prosecutor. Clary's attorney arranged for the prosecutor and the county sheriff to meet Clary at the attorney's office. From there, Clary led the authorities to the woods, where they found Jimmy Weber's dead body. Near the body, officers found a shallow square-shaped depression in the ground that recently had been dug. They also found a shovel and a knife close by. Johnson, Boyd, and the others involved in the crime were arrested that evening.
Kansas City police officers arrested Lindsay Harper at college in Warrensburg. They brought her back to the police department in Kansas City, where she told them what had happened. She said she did not have any prior knowledge that the murder was going to happen. She gave a videotaped statement to police that included her claim that Johnson said: "You know Jimmy's not coming out of the woods tonight." She later gave a second videotaped statement in which she repeated that statement but also added other details about the night of the murder.
Police also arrested Johnson that Monday evening. After waiving his Miranda rights, Johnson gave the police three different stories. In his first two versions, he denied having any prior knowledge that Weber was going to be killed. Johnson gave a third story after an officer told him his second story was not credible in light of others' statements. This time, Johnson said he and his friends became concerned that Weber was going to tell the police about their robbery plans. Johnson said they decided to kill Weber so he could not tell anyone, and they planned the roles everyone would play when they took Weber into the woods: Boyd was to stab Weber, Lile was to block Weber's exit, and Johnson was to take Harper away so she could not see what was happening. Johnson declined to make a videotaped statement.
At trial, Lile, Harper, Clary, and the detective who interviewed Johnson testified consistent with the foregoing recitation of facts. The parties agreed to play Harper's two videotaped statements for the jury and to provide transcripts of the recordings.
Johnson also testified. He said Boyd stabbed Weber while Johnson and Harper were hiking ahead of the others. He said Boyd never told him why he did it. Johnson said that the second time he heard Weber crying out, he said, "Oh my God, Jimmy might not leave the woods." Johnson acknowledged that he had "thumbed through" some books belonging to Boyd about how to commit murder. Johnson said it was Boyd who first suggested that they come up with alibis. Johnson also called his brother, Branden, to testify. Branden said that Boyd showed him Weber's body and where the knife was hidden. He said Boyd asked him to help bury the body but he refused.
The State then called Johnson's ex-girlfriend to rebut his testimony that he did not take Boyd's threats to harm people seriously. She stated that Boyd did what Johnson told him to do. She said Johnson once threatened that if she did not shut her mouth, Boyd would "take a bath in her blood," at which point, Boyd licked his knife. She also told the jury that Johnson and Boyd talked about forming their own mafia, or "gang type thing."
The State also called Randall Sanford as an additional rebuttal witness. Sanford had shared a jail cell with Johnson. According *137 to Sanford, he and Johnson had discussed Johnson's charges and the facts of the case. Sanford testified, inter alia, that Johnson had admitted to him that while Johnson was in the woods (at the time of the scream by Jimmy Weber coming a distance away in the woods), that Johnson did not say, "Oh my God, Jimmy might not leave the woods." Sanford testified that Johnson admitted to him that Johnson actually said, at that time, something more similar to what Harper had testified he said: "You know Jimmy's not coming out of the woods tonight." He also said that Johnson claimed to be the leader of the group that night, rather than Boyd, and admitted that they did it because they were afraid Weber would tell police about the robbery plan. Johnson objected to Sanford's testimony on grounds that the State had not informed the defense about Sanford or about any statements Johnson allegedly had made to him. The court, after allowing Johnson's attorney an opportunity for a brief interview with Sanford, and after requiring the prosecution to provide the defense with Sanford's criminal record, overruled Johnson's objection based on surprise, and allowed Sanford's testimony.
While in deliberation, the jury asked to see the transcripts of Harper's two statements, and the parties agreed to provide them. Ultimately, the jury found Johnson guilty of first-degree murder and armed criminal action, and the court sentenced him to concurrent terms of life without the possibility of parole and twenty-five years. Johnson appealed, and this court affirmed in a per curiam opinion, State v. Johnson, 135 S.W.3d 535 (Mo.App.2004).
Johnson filed a timely motion for post-conviction relief. He raised claims of ineffective assistance of both trial and appellate counsel. Johnson's trial counsel and appellate attorney both testified at the evidentiary hearing. Johnson did not. The court denied the motion, and Johnson now appeals.
Standard of Review
Appellate review of a Rule 29.15 decision is limited to determining whether the motion court's findings of fact and conclusions of law are clearly erroneous. Rule 29.15(k). Findings and conclusions are deemed clearly erroneous only if, after reviewing the entire record, the appellate court is left with the definite and firm impression that a mistake has been made. Middleton v. State, 103 S.W.3d 726, 733 (Mo. banc 2003).
Ineffective Assistance of Trial Counsel
Johnson's first two points relate to his claims of trial counsel ineffectiveness. A movant must prove a claim of ineffective assistance of counsel by a preponderance of the evidence. Rule 29.15(i). He first must show that counsel's performance was deficient, in that it "did not conform to the degree of skill, care, and diligence of a reasonably competent attorney" under similar circumstances. State v. Hall, 982 S.W.2d 675, 680 (Mo. banc 1998) (citing Strickland v. Washington, 466 U.S. 668, 687, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984)). The movant must overcome the strong presumption that counsel was competent and that any challenged action was a part of a sound trial strategy. Strickland, 466 U.S. at 687, 104 S.Ct. 2052; Middleton, 103 S.W.3d at 732. Second, the movant must show that counsel's deficient performance prejudiced his defense. Strickland, 466 U.S. at 687, 104 S.Ct. 2052. To demonstrate prejudice, the movant must show a reasonable probability that the outcome of the trial would have been different absent the claimed errors. Id. at 694, 104 S.Ct. 2052. "A reasonable probability is a *138 probability sufficient to undermine confidence in the outcome." Id.
Evidence of Violently Themed Books
Johnson says the motion court erred in denying his claim that his trial counsel was ineffective for failing to object when the State introduced evidence of Boyd's violently-themed books, for bringing out on direct-examination that Johnson had "leafed through" those books, and for failing to object when the State cross-examined Johnson about reading the books.
At trial, defense counsel first alluded to violently themed books in his opening statement. After characterizing Jim Boyd as a "blow-hard" who collected knives and talked about "videotapes that taught how to kill and bomb," counsel said: "You will hear that [Boyd] read books about military things and talked about the CIA and those sorts of things."
Later, the State elicited testimony from Aaron Clary that Boyd owned books entitled Kill Without Joy, the Complete How-to-kill Book; Hit Man, the Manual for Independent Contractors; and Effective Techniques for Unarmed Combat when they lived at the duplex and that he had seen Johnson reading them. Defense counsel did not object. On cross-examination, Clary said everyone in the group had read them, including Adam Lile and Jimmy Weber.
When Johnson took the stand, his attorney asked him about the books. Johnson said he had "leafed through" them when he, Boyd, and Clary lived together at the duplex. On cross-examination, the State asked Johnson about each specific book. Johnson said he had "thumbed through" and "read through" some of the books but did not recall their specifics. When the prosecutor attempted to refresh his memory by reading an inflammatory passage from Hit Man aloud, defense counsel objected stating that Johnson said he did not remember the books' specifics. The court sustained the objection. The State then asked Johnson if he had read the "lesson on knifework" in Kill Without Joy. Johnson said he did not recall reading specifics from the book or remember pictures about stabbing someone. When the prosecutor asked if a particular picture was remarkably similar to how the victim had been stabbed, defense counsel again objected, and the court sustained. Later, the prosecutor asked Johnson if he would use Boyd, "the guy that read the book Hit Man," as a hit man. Johnson said he would not, because no one took Boyd seriously when he read such books or talked about such things.
In his 29.15 motion, Johnson claimed that defense counsel was ineffective in handling this issue. Trial counsel testified that the defense strategy was to show that Boyd alone was responsible for the murder. He said the books "absolutely fit into our defense that my client was not the violent person, that Jim Boyd was in fact the violent person, and not only was he a violent person, he had violent literature in the house." Counsel believed that the books would come into evidence regardless of whether he objected, and he wanted to present them in the best possible light; he did not want to look like he was trying to hide them from the jury.
In denying this claim, the motion court found that it was defense counsel's trial strategy not to object to mention of the books and to question Johnson about them on direct examination to support his theory of the case. The motion court found that the trial record supported the belief that the books would have been admitted over any objection made by defense counsel, noting Clary's testimony that he had seen Johnson reading the books. Because *139 counsel's actions were the result of trial strategy, the motion court found no basis for post-conviction relief.
The motion court did not err in so finding. The transcript from the criminal trial and the record of the evidentiary hearing both show that counsel's failure to object to the book evidence and decision to question Johnson about it was based on trial strategy. Counsel sought to connect the books to Boyd and to argue that he was the violent person who committed the murder without anyone else's prior knowledge. Moreover, counsel did object when the State went too far in trying to connect the books to Johnson, and the objections were sustained.
"Ineffective assistance of counsel is rarely found in cases of a failure to object." Williams v. State, 205 S.W.3d 300, 305 (Mo.App.2006). Failure to object does not constitute ineffective assistance "unless admission of the objectionable evidence resulted in a substantial deprivation of movant's right to a fair trial." Harrison v. State, 301 S.W.3d 534, 538-39 (Mo. App.2009). "If a failure to object ... is based on reasonable trial strategy, then no ineffective assistance of counsel can be shown." Williams, 205 S.W.3d at 305. Reasonable choices of trial strategy cannot serve as the basis for an ineffective assistance claim. Anderson v. State, 196 S.W.3d 28, 33 (Mo. banc 2006). Counsel is not ineffective for pursuing one reasonable trial strategy to the exclusion of another. Id. Johnson does not demonstrate that this strategy was not reasonable.
In any event, to prevail on this claim, Johnson had to show that an objection would have been upheld if made. Glass v. State, 227 S.W.3d 463, 473 (Mo. banc 2007). He fails to do so. The book evidence was relevant and, thus, admissible, because it showed a source of knowledge for Johnson's and Boyd's scheme to kill Weber. The State's theory was that Johnson and Boyd conspired to kill Weber and that Johnson essentially used Boyd as the "weapon" to do so. Even if Johnson had not read the books, the fact that he knew Boyd had read them supported this theory. Thus, Johnson fails to show that there was a viable objection that could have been made. Counsel is not ineffective for failing to make a non-meritorious objection. Id.
Because trial counsel's handling of the book evidence was trial strategy and because the evidence was admissible, the motion court did not err in denying this claim. Point denied.
Admission of Lindsay Harper's Statements
Johnson also says the motion court erred in denying his claim that trial counsel was ineffective for agreeing to play Lindsay Harper's videotaped statements at trial and providing transcripts for the jurors, and for agreeing to send the transcripts to the jury during deliberations.
Lindsay Harper first gave a videotaped statement when she was arrested on September 28, 1999. She was charged with first-degree murder and armed criminal action at that time. On August 17, 2000, she gave a second videotaped statement in conjunction with her agreement to plead guilty to the lesser charge of abandonment of a corpse.[3]
Harper's two statements contained much of the same information. She said in both, for example, that Johnson told her, *140 "You know Jimmy's not coming out of the woods tonight," and that he instructed the others to come up with alibis. But her second statement also contained additional details that were not in the original. In her second statement, Harper said Johnson initially told her, on the night of the murder, that she "might not want to come over." She also said she overheard Boyd tell Johnson that things were "falling apart" and that the two discussed whether they could "still do this." She revealed that the group had made the initial trip out to Searcy Creek Parkway before going to pick up Jimmy Weber. She also said she was afraid to go into the woods and that Johnson talked her into it. Harper recounted in her second statement that Boyd said, "It's done," after the stabbing and that Johnson said, "There's our boy" as they walked past Weber's body. She also said Johnson asked her after the murder if she could "stand up to interrogation" and that she was afraid of Johnson.
Harper's videotaped statements also differed from her trial testimony in at least one important respect: in both statements, she indicated that Johnson said "Jimmy's not coming out of the woods tonight" before she heard Jimmy cry out; at trial, she told the jury that Johnson said it after they heard Jimmy's cries.
At trial, defense counsel agreed to admit both videotaped statements and their transcripts. Both videotapes were played and transcripts were temporarily provided to the jurors. In his closing argument, defense counsel told the jury to consider Harper's story and to ask for her videotaped statements. He said:
Remember the second statement with all the extra stuff in it occurred the day she was allowedshe had to do it before she was allowed to enter her guilty plea. Listen to those two statements. Compare those two statements. See exactly what was said in there. Look at all the new information that went in as a result of the plea offer in her case, taking it down from life in prison to five years in prison.
During deliberation, the jury did ask for Harper's two videotaped statements. The parties agreed to give the jury transcripts of the statements instead.
Johnson claimed in his 29.15 motion that trial counsel was ineffective in agreeing to the admission of this evidence. At the evidentiary hearing, trial counsel explained that there were inconsistencies between Harper's statements and that it "appeared as though the statements had improved once she had a plea offer." Counsel said Harper's later statement made appellant "look more culpable." Counsel explained that he had to be cautious in cross-examining Harper, because she "was a fragile sort of delicate-approach witness" who "had a lot of jury appeal." He thought that showing the videotapes to the jury would allow him to impeach her credibility "in a kind of kid-glove approach." Counsel said his handling of Harper's statements was "absolutely, trial strategy" and that the videotapes "absolutely" helped him attack her credibility. Counsel believed that the videotapes had more impact than simple cross-examination would have had.
The motion court denied this claim, finding that counsel's motivation for playing the videotapes and allowing the jury to review transcripts of the statements during deliberations was trial strategy and did not provide a basis for post-conviction relief.
The motion court did not err. Defense counsel's testimony at the evidentiary hearing, and the trial record itself, made clear that counsel presented both statements to suggest that Harper invented new incriminating evidence against Johnson as part of her plea agreement. Johnson *141 says counsel could have done this via cross-examination, but counsel felt that it would be more effective for the jury to hear and see the actual statements. By actually seeing the transcripts, he thought, the jury could see the details that Harper added prior to her plea.
Johnson says this strategy was unreasonable because rather than helping impeach Harper's credibility, it had the effect of reinforcing the incriminating evidence that appeared in both statements. We disagree. Neither the fact that the second statement may have reiterated some parts of the first, or even the fact that some aspects of Harper's statements were more incriminating than her trial testimony, renders this strategy unreasonable per se or automatically constitutes ineffective assistance of counsel. "Judicial scrutiny of counsel's performance must be highly deferential." Strickland, 466 U.S. at 689, 104 S.Ct. 2052. "Reasonable choices of trial strategy, no matter how ill-fated they appear in hindsight, cannot serve as a basis for a claim of ineffective assistance." Anderson, 196 S.W.3d at 33. Counsel is not ineffective for pursuing one reasonable strategy to the exclusion of another. Id. "A fair assessment of attorney performance requires that every effort be made to eliminate the distorting effects of hindsight, to reconstruct the circumstances of counsel's challenged conduct, and to evaluate the conduct from counsel's perspective at the time." Strickland, 466 U.S. at 689, 104 S.Ct. 2052. Johnson has not persuaded us that counsel's strategy was unreasonable. As noted in Strickland, "There are countless ways to provide effective assistance in any given case." Id. "Even the best criminal defense attorneys would not defend a particular client in the same way." Id.
Even if counsel's actions were deficient, Johnson does not demonstrate that he was prejudiced by them. He testified himself that he said Jimmy Weber would "not leave the woods," and his explanation that it was simply an expression of shock upon hearing Weber's cries was implausible. The normal reaction, upon hearing unexpected screams, would be to express surprise and concern, such as: "What's going on?" or "What was that?" and perhaps even going to see what had happened. Johnson's statement that Jimmy would not leave the woodsregardless of whether it came before or after hearing his cries indicated that he knew before going into the woods that Boyd intended to kill Jimmy while they were there.
Furthermore, in ruling on Johnson's direct appeal, we found that "the evidence at the crime scene, the testimony of Lindsay Harper and Aaron Clary, and the confession of Johnson overwhelmingly established his guilt beyond a reasonable doubt." See Johnson, 135 S.W.3d 535, mem. op. at 6. Johnson fails to establish that he was prejudiced by counsel's perceived deficiencies in light of this overwhelming evidence of guilt.
Because trial counsel's actions were based on reasonable trial strategy and because Johnson is unable to show prejudice, the motion court did not err in denying this claim.
Point denied.
Ineffective Assistance of Appellate Counsel
In point III, Johnson says the motion court erred in denying his claim that his appellate counsel was ineffective for failing to argue that because the State violated its discovery duty under Rule 25.03 in not disclosing the defendant's statements allegedly made to Randall Sanford, the trial court erred in allowing the State to call Randall Sanford as a rebuttal witness. *142 Johnson says he was prejudiced by counsel's ineffectiveness, because a reasonable probability exists that the result of the direct appeal would have been different had counsel raised this issue.
To prove ineffectiveness of appellate counsel, Johnson had to show that counsel failed to raise a claim of error on appeal that a competent and effective lawyer would have recognized and asserted. Anderson, 196 S.W.3d at 36. The movant "must show that the claimed error [was] sufficiently serious to create a reasonable probability that, if it was raised, the outcome of the appeal would have been different." Id. "The right to relief [on such a claim] inevitably tracks the plain error rule"; thus, the movant must show that "the error that was not raised on appeal was so substantial as to amount to a manifest injustice or a miscarriage of justice." Middleton v. State, 80 S.W.3d 799, 808 (Mo. banc 2002).
After the State and the defense had rested their cases in chief, the State called Sanford. Defense counsel objected on grounds that the State had not listed him as a witness nor provided any discovery about him. The trial court instructed the State to tell the defense who Sanford was and what he was expected to say. The State said that Sanford was Johnson's cellmate and that Johnson had talked to him about the facts of the case. The prosecutor said that "Sanford would not be called as a rebuttal witness if the defendant had not testified, but Mr. Sanford will specifically rebut the specifics of what Brett Johnson said he did not say or did not do from the witness stand." The court directed the State to give the defense a copy of Sanford's criminal record for impeachment purposes. During a recess, the court allowed defense counsel time to speak with Sanford. The court then allowed Sanford's testimony over objection, on the basis that he was a rebuttal witness.
Sanford testified that Johnson told him that he and Boyd had killed Jimmy Weber because they were afraid he would report their robbery plans. He said Johnson told him that Harper and Lile did not know that the murder was going to happen. Sanford said Johnson told him he was going to testify that, after hearing Weber scream, he said, "Oh, my God, Jimmy's not coming out of the woods." Sanford also said Johnson claimed to be the leader of the group. Johnson told Sanford that he had told the others they would need alibis but that he was going to testify that Boyd had said it. Sanford also said Johnson admitted that he stole a shotgun from the home of a girl named Diane, which was consistent with evidence presented at trial. Sanford acknowledged that he hoped to receive favorable treatment in his own prosecution as a result of his testimony.[4]
Rule 25.03(A)(2) requires the State, upon written request, to disclose to defense counsel "[a]ny written or recorded statements and the substance of any oral statements made by the defendant [and] a list of all witnesses to the making[.]" Johnson alleged that trial counsel failed to identify the rule number and objected only that he had never heard of the witness. The motion court found, as to that claim, that counsel's objection, while not reciting the actual rule number, was sufficient to invoke the rule. We agree.
*143 Johnson claimed in his 29.15 motion that appellate counsel was ineffective for failing to argue on direct appeal that the State violated Rule 25.03(A)(2) when it failed to disclose Randall Sanford as a witness and Johnson's alleged statements to him. The motion court's denial of that claim is the basis of this point on appeal.
At the evidentiary hearing, trial counsel testified that he had never heard of Sanford until the State called him to testify, had received no discovery regarding him, and had no indication that Sanford had information about statements made by his client. Counsel said the court gave him thirty-five minutes to go to the jail to talk to Sanford before his testimony. Counsel said much of that time was spent waiting for Sanford. Counsel claimed that he did not have enough time to prepare his cross-examination. He pointed out that he objected to Sanford's testimony but that the objection was overruled.
When appellate counsel testified, she acknowledged that she did not raise any claim of error in letting Randall Sanford testify or any argument that Rule 25.03(A)(2) was violated. She said that she "just missed it." She now is more familiar with the part of Rule 25.03 that requires the State to divulge oral or written statements, she said.
The motion court denied Johnson's claim. The court found that he failed to show that the claim he says appellate counsel should have raised would have required reversal had it been asserted. The court pointed to the fact that Sanford's testimony "was offered to rebut inconsistencies in [Johnson's] testimony" and observed that the subject matter of Sanford's testimony already had been offered through Aaron Clary, Lindsay Harper, and the police detective to whom Johnson had confessed.[5]
Johnson says this was error. He says that a reasonably competent appellate attorney would have argued on appeal that the State violated Rule 25.03(A)(2) and that the trial court erred in allowing the State to call Sanford to testify. Had appellate counsel raised this issue, he argues, this court would have been compelled to grant a new trial. He cites State v. Willis, 2 S.W.3d 801 (Mo.App.1999), and State v. Gonzalez, 899 S.W.2d 936 (Mo. App.1995), two cases in which convictions were reversed on appeal after the State introduced incriminating statements the defendant had made to others without first disclosing the existence of those statements to defense counsel.
In State v. Willis, 2 S.W.3d 801, 802 (Mo.App.1999), the defendant was charged with involuntary manslaughter in the death of his baby daughter. At a pre-trial hearing on the day the trial started, the prosecutor referred to two letters Willis had written to his wife from jail that contradicted his planned defense. Id. at 803. The court allowed the letters for purposes *144 of the hearing. Id. The next morning, defense counsel objected to the State's use of the letters during trial, claiming that the State's failure to timely disclose the letters violated discovery rules. Id. The State justified its failure to disclose by claiming that it did not intend to use the letters unless Willis testified. Id. The trial court found that the State had not complied with Rule 25.03(A)(2) but that Willis was not prejudiced. Id. The trial court allowed the letters to be used at trial, and the State used the letters as a significant part of its cross-examination of Willis. Id. Willis argued on appeal that the State's failure to timely disclose the two letters until the morning of trial violated Rule 25.03(A)(2), "disabled the defense to which he was already committed," and "affected the verdict." Id. He claimed that the trial court abused its discretion in permitting the State to use the letters. Id. The appellate court noted that it will reverse if the defendant demonstrates that the State's failure to timely disclose "results in fundamental unfairness." Id. The appellate court concluded that the State's failure to disclose the letters was a violation of Rule 25.03(A)(2) and did result in fundamental unfairness in that it prevented the defendant from having all the information necessary to prepare his defense for trial. Id. at 806-07. The court rejected the State's various arguments regarding a lack of prejudice, and reversed and remanded for a new trial. Id. at 808-09.
In State v. Gonzalez, 899 S.W.2d 936 (Mo.App.1995), the defendant was on trial for second-degree murder and armed criminal action. The court allowed the State to cross-examine Gonzalez about an admission he purportedly had made to a fellow inmate, despite defense counsel's objection that no such statement had been disclosed to him prior to trial. Id. at 937. Gonzalez was convicted on both counts. Id. at 936. On appeal, he argued that the trial court erred in allowing the State to question him about the undisclosed statement. Id. at 937. In response to the State's argument that Gonzalez did not show how timely disclosure would have helped him, the appellate court pointed out that counsel "would at least not have been surprised by the questions" and "would have been equipped to repair any damage done, or perceived to have been done, by the prosecutor's questions." Id. at 938. The court concluded that the prosecutor's failure to disclose the alleged statement combined with an improper jury argument to prejudice the defendant and warranted reversal and a new trial. Id.
Johnson says the State's discovery violation prevented him from making an informed and voluntary decision about whether to testify at trial and also deprived him of an opportunity to investigate Sanford's claims, prepare to cross-examine him, or locate witnesses who could have refuted his claims. Johnson says he was prejudiced because this court would have reversed his convictions if the discovery violation had been raised on direct appeal. Johnson's evidence at the evidentiary hearing, while demonstrating surprise, did not, however, demonstrate that Johnson's defense was altered in any way. The evidentiary hearing was the proper time to present testimony showing that the discovery violation created not only surprise, but fundamental unfairness.
The State, while conceding that the prosecutor's failure to disclose Johnson's statements to Sanford was a discovery violation, says that this does not automatically mean the claim requires reversal. The State argues that Johnson fails to establish that the violation resulted in "fundamental unfairness." The State says that "[a]ppellate courts will intervene [in such a case] only where a defendant shows that the failure to make a timely disclosure resulted *145 in fundamental unfairness." State v. Jamison, 163 S.W.3d 552, 557 (Mo.App. 2005). "Fundamental unfairness," says the State, "turns on whether there was a reasonable likelihood that an earlier disclosure... would have affected the result of the trial." Id. "Fundamental unfairness occurs when the State's failure to disclose results in defendant's `genuine surprise' and the surprise prevents meaningful efforts to consider and prepare a strategy for addressing the evidence." State v. Thompson, 985 S.W.2d 779, 785 (Mo. banc 1999).
In Thompson, the Supreme Court addressed allegations of discovery violations by the State in the guilt phase of a capital murder case. Id. at 784. The defendant there failed to identify any specific ruling of the trial court as to the discovery issues in question. Id. The Court also noted that the defendant did not specify, either on appeal or before the trial court, how further investigation or preparation would have benefited his defense. Id. at 785. The Court concluded that the "[d]efendant's bare assertions of prejudice are not sufficient to establish fundamental unfairness nor do they demonstrate how the outcome of the case was substantively altered." Id.
The Court in Thompson, however, also addressed allegations of discovery violations in connection with the penalty phase of the case. In appellant's point I as to the penalty phase, the defendant contended that he was caught by surprise when his former wife testified that the defendant, in a previous incident, had "shot someone he had seen `messing with his car.'" Id. at 792. The State admitted that it failed to disclose to the defendant that it intended to introduce evidence about the incident. Id. Although the defendant objected on grounds of non-discovery immediately after the ex-wife's testimony concluded, the defendant had failed to object contemporaneously with the ex-wife's testimony about the incident. Id. Review, therefore, was for plain error pursuant to Rule 30.20. Id.
Because of the significance of the testimony (which defendant was not prepared to rebut) about an act of violence with a deadly weapon that was also an act of "unreasonable territoriality," and because of "the totality of the circumstances" (which included the fact that this was the sentencing phase of a capital case in which a death penalty had been imposed), the court found a manifest injustice or miscarriage of justice. Id. Without specifying exactly how the non-disclosure presumably affected the defense's strategy or otherwise affected the fairness of the proceeding, the Court reversed the death sentence and remanded for a new sentencing hearing. Id.
This case does not involve the penalty phase of a capital case, as in Thompson. Nor does it involve a case in which there were (presumably) no eyewitnesses as to any of the circumstances of death (the death of an infant child), as in Willis. Nor was the non-disclosure here combined with the prejudicial effect of an improper jury argument, as was the case in Gonzalez. As far as the ruling in Thompson related to the guilt phase discovery violations, the Court seems to indicate that the defendant-appellant must be able not only to articulate the specific discovery violation but also to indicate how the violation prejudiced the defendant's defense. See Thompson, 985 S.W.2d at 785.
The evidence of Johnson's knowing and active participation in the murder was strong even without Sanford's testimony, and Johnson does not articulate exactly what the defense would have done differently had it known about Sanford. It is true that Johnson's attorney had very little *146 practical opportunity, once receiving notice, to develop a strategy to address the testimony.[6] But the question is whether the motion court should have believed that, had appellate counsel selected the non-disclosure of Sanford as a point to argue, there is a reasonable probability that counsel would have been able to obtain a reversal of the conviction.
Johnson argues that "the state's failure to disclose result[ed] in defendant's `genuine surprise' and the surprise prevent[ed] meaningful efforts to consider and prepare a strategy for addressing the evidence." See id. at 785. We suppose that, advance notice of Sanford or not, the defense would have done at least what was done here: attacking Sanford's testimony by showing his own criminal history and his hope for favorable treatment from the prosecution.
This is a post-conviction motion case. We are not now reviewing the actions of the trial judge in this case, other than to judge whether this court would likely have reversed the trial court if the discovery violations had been effectively raised and argued in the direct appeal. As to that issue, we can say that a reversal would not have been outside the realm of possibility if counsel had been able to persuade this court that the discovery violation regarding Sanford was in bad faith and if this court had believed, in view of all the circumstances, that the failure to provide notice of Sanford's evidence created a fundamental unfairness. But we cannot say, on this record, that a reversal of the conviction on the direct appeal would have been reasonably probable. See, e.g., Anderson, 196 S.W.3d at 36. Nor can we say that the record shows clearly that the discovery violation created fundamental unfairness in some other way to such a degree that this court would have been reasonably likely to reverse the conviction.
It is difficult to establish fundamental unfairness or to demonstrate how the case's outcome was substantively altered by the failure to disclose where there is overwhelming evidence of guilt, because that factor is part of what the court must consider. See Jamison, 163 S.W.3d at 557. Here, there was overwhelming evidence of Johnson's guilt. That evidence included his own statements at the time of the murder, which showed his prior knowledge of the plan to kill Jimmy Weber; his remarks about the victim's body, which were inconsistent with those that would be expected from an innocent bystander; his confession to the police; and the testimony of Harper, Lile, Clary, and the interrogating detective. The impropriety of the non-disclosed rebuttal evidence was not highly evident to the trial judge at the time nor to the appointed appellate defense counsel assigned to the appeal.[7] Neither client nor counsel testified at the post-conviction hearing as to how the non-disclosed testimony frustrated the defense strategy or would have affected it if counsel had received proper notice.
*147 For all these reasons, we cannot say that the motion court "clearly erred" in denying Johnson's motion. The point is denied.
Conclusion
Based on the foregoing, the judgment is affirmed.
NOTES
[1] Statutory references are to the Revised Statutes of Missouri 2000 unless otherwise noted.
[2] A shotgun was found at Weber's home after his murder.
[3] Though the State had asked for a five-year sentence, the court placed Harper on probation.
[4] In the midst of Sanford's testimony, he revealed that he had taken written notes with him when he went to meet with the prosecutors. The court ordered the State to produce those notes and give them to the defense. After a lengthy discussion about whether or not the notes had been destroyed (and if so, by whom), the court eventually concluded that they had been destroyed by Sanford's attorney. Sanford continued testifying.
[5] Neither party has purported to delineate precisely how much of Sanford's testimony could properly be called rebuttal and how much was simply consistent with other prosecution testimony. We believe Sanford's testimony did include what could properly be considered rebuttal, at least to the extent that it dealt with what Johnson stated in the woods at the time of the scream and to the extent that it dealt with Johnson's leadership of the group that night. It is important to recognize that the mere fact that evidence as to an admission of the defendant does not make it rebuttal merely because the defendant chooses to testify. See, e.g., State v. Kehner, 776 S.W.2d 396, 398-99 (Mo.App. 1989). At the time the testimony was presented, defense counsel did not clearly articulate an objection related specifically to the extent that the testimony of Sanford might have exceeded actual rebuttal. In any event, of course, we agree with the appellant that, rebuttal or not, such testimony is required to be disclosed in discovery pursuant to Rule 25.03.
[6] Neither of the parties chooses to discuss how Johnson's strategic maneuvers might have been affected by the fact that Johnson had undergone two previous trials before this trial, and we lack knowledge of the details ourselves. The motion court also did not address the matter. We are left with the assumption that neither party saw any constraints (based on any testimony Johnson may have given at prior trials) as particularly relevant.
[7] The only testimony at all in regard to prejudice was the belated speculative opinion of appellate defense counsel that, in light of the fact that there was a hung jury in previous trials, perhaps a trial court ruling excluding Sanford's testimony altogether could have resulted in a defense verdict. There was no testimony as to how the non-disclosure of Sanford would have affected the strategy of the defense.
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357 S.W.2d 303 (1962)
Thomas H. HODGE et al., Appellants,
v.
T. D. LUCKETT et al., Appellees.
Court of Appeals of Kentucky.
March 9, 1962.
Rehearing Denied June 8, 1962.
J. W. Jones, Louisville, for appellants.
James L. Taylor, Boehl, Stopher, Graves & Deindoerfer, E. R. Johnson, Louisville, for appellees.
PALMORE, Judge.
This is a "spot zoning" controversy in which a group of residents and property owners in the unincorporated community of Lyndon in Jefferson County appeal from a circuit court judgment affirming the rezoning of an 18 1/2 acre tract, owned by the appellee Foeman, from a residential to light industrial classification.
A comprehensive zoning plan for the unincorporated areas of Jefferson County has been in effect since 1943. No property within about 4 miles of Lyndon has ever been zoned as industrial. Naturally, therefore, no industrial development has since occurred in the area. There are, however, several nonconforming uses carried over from pre-zoning days. The land in question is within and completely surrounded by an area that is zoned residential. The nearest non-residential zone is the commercial property at the main business corner of Lyndon some 2 or 3 blocks away.
The main trouble with this 18 1/2 acres is that it is low land which receives surface waters from a large area and does not drain well. It is "crawfish" ground on which water frequently stands. There are *304 no public sanitary sewer facilities in the vicinity, and percolation tests made on the tract in 1957 indicated much of it to be unsuitable for septic tanks. Only the westernmost portion of the property, variously estimated from 20% to 50%, could possibly be developed for residential use under existing circumstances. There was testimony, however, that as a whole it probably could be adapted to certain types of industrial use, though even this would require remedial measures against the drainage problems.
Aside from the drainage situation there are other reasons why this property may be better suited (or, at least, less unsuited) for industrial than residential development. It is bounded on the north by the right-of-way of the L & N Railroad Company, on the east by an unimproved dead-end street or lane called Ormsby Road, on the south by an unimproved street named Violet Avenue, and on the west by the rear of several residential lots of considerable depth which front on Grant Avenue, a street running from Violet Avenue to the railroad. The railroad tracks are situated on a fill 12 to 15 feet high, which detracts from the desirability of adjacent property for residential purposes. (Nevertheless, the property along the railroad from Crescent Hill in Louisville to Anchorage, on the other side of Lyndon, has continued to develop residentially.) A large high-tension electric power line runs across the easternmost portion of the property in question, just west of Ormsby Road, and across the street on the east side of Ormsby Road are a substation of the Louisville Gas & Electric Company and an old building that houses a woodworking concern, a plumbing contractor and a small trucking company. The electric substation is a permissive use under zoning laws. The other activities constitute an "inherited" non-conforming use.
Foeman bought the property in 1957. Almost at once he optioned it to the Kentucky Rural Electric Cooperative Company and applied to the Louisville and Jefferson County Planning and Zoning Commission for a rezoning that would permit the contemplated use of the tract by the prospective purchaser. Between then and now this deal has fallen through, but that was the genesis of the proceeding before us today. Concededly, it was privately initiated for private purposes and did not grow out of any public planning.
Since 1955 some 50 to 60 homes in the $15,000 to $20,000 class have been built along two streets intersecting Violet Avenue from the south in the proximity of the Foeman tract. Owners of these homes are prominent among the objectors to the instant rezoning. They invested in their property on the strength of the prevailing pattern of zoning, and they invoke the protection of the law against a change they contend will be a detriment to them and a benefit to no one but Foeman.
The trial court made findings of fact that (1) the Foeman property is "unsuitable for residential use," (2) it is "best suited" for industrial development as provided by the action of the zoning commission, and (3) retention of the residential restriction upon it would be "unwise and unsound." Strictly speaking, these are opinions rather than facts, but they fall within the category of factual determinations that are conclusive on appeal if supported by substantial evidence, which is to say, if they are not clearly erroneous. CR 52.01; Louisville & Jefferson County Planning and Zoning Commission v. Cope, Ky., 1958, 318 S.W.2d 842.
The conclusions of law reached by the court were that the residential classification of the Foeman property constituted an unreasonable and arbitrary restriction on its use, not reasonably related to the public health, safety, morals or general welfare, and that the zoning commission had properly exercised its power in changing the classification.
Much has been written on the subject of "spot zoning," and we shall not attempt any further definition here. See Yokley, Zoning Law and Practice, Vol. 1, pp. 202-224, *305 §§ 90-95; and annotation, "Spot Zoning," 51 A.L.R.2d 263-315. The question of just what circumstances will suffice as a "reasonable ground or basis for the discrimination," validating a reclassification that would otherwise be stricken down as illegal spot zoning, is not neatly answerable. Mathis v. Hannan, Ky. 1957, 306 S.W.2d 278, 280. However, several broad currents of principle can be identified in the ocean of case law on the subject. Probably the most common example is a substantial change of conditions in the vicinity of the affected property. Cf. Louisville & Jefferson County Planning & Zoning Commission v. Cope, Ky. 1958, 318 S.W.2d 842. Another, as it was recently expressed in Fritts v. City of Ashland, Ky. 1961, 348 S.W.2d 712, 714, is where the particular reclassification is made pursuant to a "coordinated plan designed to promote zoning objectives." See Leutenmayer v. Mathis, Ky. 1959, 333 S.W.2d 774, 776. A third recognized category consists of those cases in which the condition or character of the property itself distinguishes it from the surrounding property and shows a reasonable basis for different classification (or, to put it another way, the property was improperly classified in the first place). Byrn v. Beechwood Village, Ky. 1952, 253 S.W.2d 395; Shemwell v. Speck, Ky. 1954, 265 S. W.2d 468; Keller v. City of Council Bluffs, Iowa, 1954, 246 Iowa 202, 66 N.W.2d 113, 51 A.L.R.2d 251.
"When an application is made for reclassification of a tract of land from one zone to another, there is a presumption that the zones established by the original zoning ordinance were well planned and arranged and were intended to be more or less permanent, subject to change only when there are genuine changes in conditions. Therefore, before a zoning board rezones a property, there should be proof either that there was some mistake in the original zoning or that the character of the neighborhood has changed to such an extent that reclassification ought properly to be made." Offutt v. Board of Zoning Appeals of Baltimore County, 1954, 204 Md. 551, 105 A.2d 219.
The reclassification in this case is not part of an orderly and systematic scheme of planning, nor has there been any change of condition in the surrounding territory except that it has become more instead of less residential in character. Under no theory can the zoning change be sustained unless it falls within the third category we have mentioned, in that the condition of the property itself is a reasonable basis for differentiation.
Thus far these three avenues of justification, or grounds for special treatment, have been mentioned as if they were of equal weight. However, a rezoning that rests entirely on some difference existing from the time of the original zoning is inherently weak. The time for the owner to speak was when the unfortunate classification of his property was first proposed or put into effect. Neither he nor his successor in title is in a good position to assert the error after others have invested in neighboring property in reliance on the zoning plan. True, his property ought not to be forever consigned to oblivion, but if he has remained silent when he should have spoken it is no injustice to impose the condition that in order to justify a reclassification he show by clear and convincing proof that there will be no substantial resulting detriment to others.
The evidence in this case was directed almost wholly to the unsuitability of this particular property to residential development, and its suitability for industrial purposes. Actually its suitability for residential purposes is a relative proposition. Foeman himself lives on it. It is suitable for pasture and truck gardening, having been so used all along. That a parcel of real estate cannot be cut up into small lots and thereby developed to the uttermost degree as a residential subdivision does not necessarily brand it as unsuitable for a residential classification. Nor, obviously, is the purpose for which the property will *306 have the greatest sale value a fair test of its best use with due regard for the common good of the community. Cf. Fritts v. City of Ashland, Ky.1961, 348 S.W.2d 712. An industrial concern might be willing to pay a high price for the whole 18 1/2 acres in this case in order to utilize only that portion which is fit for residential construction, leaving the marshy bottom even less used than it is at present. The practical result of rezoning would thus be limited to that portion of the property which in fact is not distinguishable in condition or character from the surrounding residential area, and which there is absolutely no basis to rezone. We point out these facets of the situation not to refute the judgments of the zoning commission and the learned trial court, but to underscore what was said in Fritts v. City of Ashland, supra, to the effect that the only real and solid basis for rezoning is planning, and not the exigencies of the moment.
Without passing on the other factual findings of the trial court, we conclude that the determination that it would be "unwise and unsound" to retain the existing classification of the 18 1/2 acres is clearly erroneous. Under the rule we have here announced, where the sole basis for change is that the property is different in condition or character from the surrounding property in the same zoning classification, a finding to the effect that a rezoning would promote the welfare of the community as a whole (which is tantamount to "sound and wise") must be supported by evidence not only proving the difference in situation, but also negating in clear and convincing fashion the probability of substantial resulting detriment to other property likely to be affected. In this case there was no substantial proof to the latter effect; on the contrary, from the evidence introduced there is very little doubt that the residential property in the community would be adversely affected, and probably to a material degree.
The cause is reversed with directions to enter a judgment setting aside the order of the zoning commission.
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633 So.2d 580 (1994)
Clarinda WINGET, et al.
v.
COLFAX CREOSOTING, CO., et al.
No. 93-C-3047.
Supreme Court of Louisiana.
February 4, 1994.
Denied.
DENNIS, J., not on panel.
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3 Ariz. App. 597 (1966)
416 P.2d 1018
John O. REED, Petitioner,
v.
The INDUSTRIAL COMMISSION of Arizona and E.L. Webb Construction and Centron Construction Company, Respondents.
1 CA-IC 62.
Court of Appeals of Arizona.
July 25, 1966.
*598 Minne & Sorenson, by A.D. Ward, Phoenix, for petitioner.
Jennings, Strouss, Salmon & Trask, by John S. Hobbs, Phoenix, for respondents.
STEVENS, Chief Judge.
This is an appeal by writ of certiorari from a Decision of the Industrial Commission issued July 8, 1965.
The petitioner, John O. Reed, was 59 years old, and was working as a carpenter when he was injured in an industrial accident on December 6, 1962. He tripped over concrete reinforcing wire while working, and fell forward, striking on his face, and injuring his face, neck and hand. Petitioner was treated by his physician two days later, on December 8, 1962, and X-Rays were made on that day which showed osteoarthritic changes "of long duration", but no objective injury to the boney structure. Petitioner did not respond to treatment, and was hospitalized on January 28, 1963. During his hospitalization, on February 4, 1963, he was seen in consultation by Dr. Lofdahl, who diagnosed petitioner's condition as being an exacerbation of an old injury which occurred in an industrial accident in 1955. He recommended conservative treatment to be carried out in the petitioner's home, and specifically prescribed against cervical traction or cervical support. Two days later petitioner's attending physician filed his monthly report stating that X-Rays taken at the hospital revealed a probable fracture of one of the boney bridges as a result of the accident. The petitioner was discharged from the hospital February 10, 1963.
Petitioner continued to experience symptoms, and at the request of his attending physician he was seen by a consultation board on April 24, 1963. The consultation report indicates that the board had before it the record of the petitioner's 1955 injury and claim, including a psychiatric report made by Dr. McGrath at that time. These records are not before this court, and are not in evidence in this claim. They are mentioned here because the medical consultants on the board testified at the hearings that they relied heavily upon Dr. McGrath's 1955 report in reaching their conclusions and recommendations in 1963, which were that all medical treatment of petitioner should be discontinued, that he be instructed to increase his exercise, and that he be discharged without any permanent disability attributable to the industrial injury. Petitioner was discharged as an industrial case April 26, 1963, even though his physician continued to treat him and prescribe for him several months after that date. Petitioner was awarded temporary benefits through April 26, 1963.
Two hearings were held following the Award for temporary compensation, in September 1963 and March 1964. The Referee's Report was not made until over one year following the last hearing, in May, 1965, and the Commission's Decision did not issue until July 1965.
The question before the court is whether the Findings and Award of the Commission are supported by the evidence.
The Commission made seven findings, the first of which was:
"1. Medical evidence adduced at both hearings established that applicant had fully recovered from any disabling in jury."
*599 The other six findings are not pertinent to a determination of this case. Under the heading "ORDER", the Commission states:
"1. Applicant has no physical or mental disability attributable to the stated industrial episode of December 6, 1962."
"2. If applicant has any disabilities, they are not related to the stated industrial episode of December 6, 1962."
The "ORDER" then affirmed the Findings and Award of 1963 for temporary compensation through April 1963 only.
We have carefully examined the evidence before the Commission, and it is the opinion of this Court that the Findings and Award are not supported by the evidence.
The report of the consultation board and the testimony of the consulting doctors interpreting it, clearly indicates that the board concluded that the petitioner had a mentally oriented disability. At no time did they suggest that the petitioner's condition was stationary. Their conclusion that medical treatment of the petitioner should be stopped and that he should be discharged with a "no permanent disability" rating with the recommendation that he increase his activities and return to work was in the nature of a psychological incentive we have termed "work therapy". Those doctors who testified admitted they had relied heavily upon the psychiatric report on the petitioner made following an industrial injury in 1955. As was stated, that report is not in evidence in this claim. According to the doctors, the 1955 injury was identical with the injury of 1962, and in their opinion the petitioner's reaction to the second injury followed the same "pattern" as his reaction to the first. From this coincidence, they testified that they concluded that petitioner would return to work if his compensation were terminated.
The fallacy of that conclusion has been shown by the facts presented on this appeal four years after the 1962 accidental injury, and three years after the consultation board's report. The petitioner testified at the hearing (a year following the report) that he had not worked since the accident and was unable to work, or to move about, because of his discomfort and pain. He testified that after his recovery from the 1955 injury, his symptoms had abated, so that he was able to work continuously until he was injured in 1962. Petitioner's testimony that he was unable to work following the 1962 injury was uncontroverted.
The Commission has no right to disregard the testimony of an interested witness unless the testimony has been impeached or contradicted or the circumstances are such as to cast doubt upon its credibility. Dabbs v. Industrial Commission, 2 Ariz. App. 598, 411 P.2d 36 (1966). The doctors were testifying on the basis of an examination they had made a year prior to the date of the hearing. They had decided at that time that if the man were not compensated, his symptoms would disappear and he would return to work. On the days the doctors were so testifying, the petitioner testified without controversion that he was not then able to work, and had not been able to work since his 1962 injury. This was true, he stated, even though he had not been receiving compensation or any other benefits, payments, or such, since April 1963, but was being forced to use his life savings for money on which to exist. The premises on which the doctors based their conclusion, e.g., that the pattern in the first injury would repeat itself and petitioner would return to work, was not correct.
The record is replete with evidence that the petitioner continued to suffer a physical disability as a result of his industrial injury in 1962, after his compensation was terminated in April 1963. The finding of the Commission that petitioner had "fully recovered from any disabling injury" is not supported by the evidence.
The Award is set aside.
CAMERON and DONOFRIO, JJ., concur.
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60 F.2d 394 (1932)
NORTHERN PAC. RY. CO.
v.
VAN DUSEN HARRINGTON CO.
No. 9336.
Circuit Court of Appeals, Eighth District.
July 29, 1932.
Frederic D. McCarthy, of St. Paul, Minn. (D. F. Lyons and D. R. Frost, both of St. Paul, Minn., on the brief), for appellant.
A. C. Remele, of Minneapolis, Minn., for appellee.
Before GARDNER, SANBORN, and BOOTH, Circuit Judges.
BOOTH, Circuit Judge.
This is an appeal from a judgment in favor of defendant in an action at law brought by the Northern Pacific Railway Company against the Van Dusen Harrington Company to recover tariff charges on 103 carload shipments *395 of grain over the line of said railway company from points west of Staples, Minn., destined to Minneapolis, Minn.
On a former appeal, this court reversed a judgment obtained by the railway company, and remanded the cause. 32 F.(2d) 466.
The plaintiff alleged that a $2.25 charge on each car became applicable under rule 1 contained in the Diversion and Reconsigning Tariff, N. P. Ry. No. 770-N, I. C. C. N. P. No. 7641, and supplements thereto. This was denied by the defendant. The charge was one imposed under the rule when disposition order of a car was not given until after the expiration of the "free time."
A jury was duly waived by stipulation, and the case was tried to the court. Evidence was offered as to the handling of 14 cars out of the total number; it being stipulated that if the decision of the case was for plaintiff, the court could allow plaintiff to prove the handling record of the other cars.
Rule 1 referred to was designated: "Rules and Charges Governing Grain, * * * Carloads, Held in Cars on Track for Inspection and Disposition Orders Incident Thereto at Billed Destination or at Point Intermediate Thereto."
The rule, so far as here material, reads as follows:
"Rule 1. Grain, * * * carloads, will be placed on hold tracks of this carrier * * *, and notice of the location of the hold tracks on which the cars are placed sent to the consignee, or posted on the bulletin board where such practice is in vogue, for the purpose of inspection (See Note 1), and held on such tracks or other tracks for disposition orders, at either the bill destination or a point directly intermediate thereto. Upon cars so placed and held the following charges will apply:
"(a) Grain and Seeds When disposition order is received prior to the expiration of the free time provided for in the National Code of Demurrage Rules as published in I. C. C. No. 1340, issued by B. T. Jones, Agent, supplements thereto and reissues thereof, no charge.
"When disposition order is given after the expiration of the free time here prescribed * * * $2.25 per car. * * *
"Note 1 The inspection as referred to is:
"(a) On Grain and Seeds, that made under National, State or Board of Trade requirements by competent and impartial authority independent of both vendor and vendee."
The main facts are not in dispute. The cars in question (identified in Exhibit Y received in evidence) were consigned to the Van Dusen Harrington Company, Minneapolis. On arriving at Staples, a division point on said line of railway about 130 miles west of Minneapolis, the cars were held and samples were taken by samplers employed by the state of Minnesota and by samplers employed by the Big Six Sampling Bureau, which bureau was employed by a number of firms in Minneapolis, including the Van Dusen Harrington Company. Ample information and facilities were furnished by the railway company for the taking of said samples at Staples; and it has been the uniform practice for samples to be taken at that point for a number of years, including the times of the shipments in question. The samples which were thus taken at Staples by the Sampling Bureau were sent by passenger train to Minneapolis, and were received at that point by the Minneapolis office of the Sampling Bureau before the cars of grain arrived. While the cars were at Staples, a so-called manifest was issued by the railway company and sent to the consignee at Minneapolis. The manifest was in the following form:
"Northern Pacific Railway Company
"Staples Station 7-10-23
"To Van Dusen Hagtn.
"Mpls.
"Take Notice The following cars have reached this station and are now ready for inspection and delivery, subject to the conditions printed on the reverse side of this sheet.
------------------------------------------------------------------
Car Initials Kind of
and No. From Consignor Consignee Grain
------------------------------------------------------------------
45042 Edmunds John Van Dusen-Hgtn. Oats
Latman
(Stamp)
Received
Van-Dusen-Harrington
Co. 7
Jul 11 1923"
After the samples were taken at Staples, the cars were moved to Minneapolis and placed there upon certain tracks, known as grain tracks or hold tracks, in the Northern Pacific Railway yard. There were six of these tracks. The cars were held on these tracks until disposition orders were given by the consignee directing where the cars should be unloaded. Free time of a number of hours was allowed on each car under tariff provisions. Disposition orders as to the cars here in controversy were not given by the Van Dusen Harrington Company until after the free time had expired.
*396 In the railroad yard at Minneapolis was a yard office of the railway company having a telephone located therein. Samplers were accustomed to congregate in the yard office. If the consignee (in this case the Van Dusen Harrington Company) desired a resample of any of the cars, the samplers were notified through the Sampling Bureau and they obtained the location of the car specified from certain yard-check lists made up by employees of the railway company and from a "grab" book made up partly by said employees of the railway company and partly by the samplers themselves. The "grab" book contained the numbers of the cars received each day and the track upon which each car stood. The "grab" book was made up from the yard-check lists which were made by the yard clerk as he went along the tracks to take the car numbers. These yard-check lists showed the order in which the cars stood on each track. From these two sources, the samplers were able to ascertain the location of a particular car and make the resampling.
No notice was posted upon a bulletin board by the railway company of the placing of the cars in controversy on the hold tracks of the railway company at Minneapolis; and no notice was sent out or given by the railway company to the Van Dusen Harrington Company of the placing of said cars upon said hold tracks, unless what was done at Staples and at Minneapolis, as heretofore set out, constituted such notice.
Among the findings made by the trial court were the following:
"VI. In accordance with the provisions of its Diversion and Reconsigning Tariff, and more particularly Rule 1 thereof, the plaintiff was required to place said carload shipments on hold tracks and send to the defendant notice of the location of the hold tracks on which said cars, and each of them, were placed and no notice of the location of the hold tracks on which the cars described in Exhibit Y, or any of them, were placed was sent or given to the defendant, the consignee named in the bills of lading under which said shipments moved from point of origin to destination.
"VII. The practice of posting notice of the location of the hold tracks on which cars so placed were held on a bulletin board was not in vogue during the time said shipments, or any of them, moved, and no notice of the location of the hold tracks on which said cars were placed was posted on a bulletin board with respect to the cars described in Exhibit Y, or any of them."
As a conclusion of law the court held "that no so-called reconsigning charges as defined in the applicable tariffs of the plaintiff became due with respect to any of the shipments set forth in said Exhibit Y and that defendant is entitled to Judgment."
Judgment was accordingly entered in favor of defendant Van Dusen Harrington Company.
On this appeal the appellant railway company contends:
(1) That what was done at Staples, namely, holding the cars and having samples taken and sending out the manifest, together with what was done on the arrival of the cars at Minneapolis, namely, making out the yard-check lists and the "grab" book, constituted a compliance with rule 1, above quoted.
(2) That Van Dusen Harrington Company, for a number of years, paid charges similar to those involved in the present case without objection, and that it was thereby estopped to question the correctness of the demand for the present charges.
The appellee Van Dusen Harrington Company contends:
(1) That what was done at Staples was not a compliance, nor intended to be a compliance, with rule 1; that the cars at Staples were not held for disposition within the meaning of rule 1, and that they were not held for disposition until after arrival at Minneapolis; that the samplers at Staples and the samplers at Minneapolis were employed by the Van Dusen Harrington Company solely to get samples; but that they were not agents to receive the notice required by rule 1.
(2) That the decision of this court on the former appeal, relative to the question whether there was a compliance by the railway company with rule 1, became the law of the case, was binding on the trial court, and should be adhered to by this court.
(3) That even though the Van Dusen Harrington Company had paid similar charges in prior years, such payments could not constitute an estoppel, because neither the railway company nor the Van Dusen Harrington Company could waive any part of the tariff; and rule 1 was a part of the railroad tariff on file in accordance with the law.
Three questions are, therefore, presented:
1. Whether appellee, Van Dusen Harrington Company, is estopped.
2. Whether the rule of "law of the case" is applicable.
*397 3. Whether there was substantial evidence to support the findings, above quoted, of the trial court.
We think there is no merit in the contention that the Van Dusen Harrington Company was estopped from asserting that rule 1 was not complied with by the railway company. Neither by waiver nor by estoppel can the duly published tariff rules and charges of a common carrier be modified or abrogated. Davis v. Henderson, 266 U. S. 92, 45 S. Ct. 24, 69 L. Ed. 182; Davis v. Cornwell, 264 U. S. 560, 44 S. Ct. 410, 68 L. Ed. 848; Missouri, Kans. & Tex. Co. v. Ward, 244 U. S. 383, 37 S. Ct. 617, 61 L. Ed. 1213; Georgia, Fla. & Ala. Ry. v. Blish Milling Co., 241 U. S. 190, 36 S. Ct. 541, 60 L. Ed. 948; American Ry. Express Co. v. American Trust Co. (C. C. A.) 47 F.(2d) 16.
In Davis v. Henderson, supra, there was involved the rule requiring that orders for cars given to the carrier's local agent must be in writing. Plaintiff, a shipper, contended that the rule had been waived. The Supreme Court said: "There is no claim that the rule requiring written notice was void. The contention is that the rule was waived. It could not be. The transportation service to be performed was that of common carrier under published tariffs. The rule was a part of the tariff."
Is the rule of "the law of the case" applicable?
The views of this court on the question when the law of the case is applicable have been expressed in several opinions:
In Pennsylvania Mining Co. v. United Mine Workers, 28 F.(2d) 851, the court, speaking by Judge Kenyon, said at page 852:
"It is the well-established doctrine of the federal courts that, on a second writ of error or appeal, questions of law or fact determined upon the first hearing are not reconsidered, provided the evidence was substantially the same upon both trials. Under such circumstances questions of law determined on a writ of error or appeal are the law of the case, both for the trial court and this court on a second writ of error or appeal. * * *
"There should be and is an exception to this rule, viz.: If convinced that a former decision is clearly erroneous and unsound, and works manifest injustice to the parties, an appellate court should not deem itself bound as to such parties by the rule of `law of the case.' It is the general practice of courts, however, `to refuse to reopen what has been decided.'"
In Page v. Arkansas Natural Gas Corporation, 53 F.(2d) 27, the court, again speaking by Judge Kenyon, said at page 31: "The rule of `the law of the case' is of course recognized by this court. The theory is that what has once been determined should not be reopened, well expressed by Mr. Justice Holmes in Messinger v. Anderson, 225 U. S. 436, 32 S. Ct. 739, 740, 56 L. Ed. 1152: `In the absence of statute the phrase, "law of the case," as applied to the effect of previous orders on the later action of the court rendering them in the same case, merely expresses the practice of courts generally to refuse to reopen what has been decided, not a limit to their power.'"
See, also, City and County of Denver v. Denver Tramway Corp. (C. C. A.) 23 F.(2d) 287; National Bank of Commerce v. United States (C. C. A.) 224 F. 679; Federal Reserve Bank v. Omaha Nat. Bank (C. C. A.) 45 F.(2d) 511.
Bearing in mind the principles thus stated by this and other courts, we turn to the inquiry whether the evidence on the question of the compliance with rule 1 by the railway company was substantially the same on the second trial as on the first.
The record on the first trial clearly shows that the issue as to such compliance was involved; that the facts were largely stipulated relative to what was done at Staples and how it was done; and the same is true as to what was done in the railroad yard at Minneapolis on the arrival of the cars at that point.
The testimony on the second trial covered these matters more in detail, and explained the "grab" book, which was not introduced at the first trial.
The trial court held, on the first trial, that rule 1 was complied with by the railway company.
On the first appeal, touching the question of compliance with rule 1, this court said, at page 470 of 32 F.(2d): "That tariff purported to provide literally that which the Commission thought to be an essential basis for a charge of this nature. It is apparent, however, that the provisions of the tariff, thus embodying the suggestions of the Interstate Commerce Commission, were not observed in practice. No notice of location of *398 the hold tracks on which the cars were placed was sent to the consignee, or posted on any bulletin board. In the petition, in the stipulations filed, and in the testimony of the assistant general freight agent of appellee, it is stated that the hold tracks in question were located within the switching limits of Minneapolis. At the argument, counsel for appellee contended that the tracks at Staples which are called `sampling tracks,' where samples were taken, are hold tracks within the meaning of the tariff. Even so, no information as to the location of such tracks was given other than the fact that the cars in question had reached the station at Staples; and those tracks could not discharge the functions required of hold tracks, which are supposed to be located conveniently for the taking of new samples if desired. It is insisted by appellant that the strict observance of this rule is important for protection of consignee in case additional samples are required in order that the same may be examined and a disposition of the cars made within the free time. It is probably true that upon inquiry at the yard office the consignees could ascertain the location of the hold tracks in North Minneapolis with greater or less delay, but it cannot be denied that the terms of the tariff, which would appear to be conditions precedent to the right to impose these reconsignment charges, were not observed. Such tariffs are construed strictly. The carrier was not compelled to publish its tariff in these precise terms; having done so, it must abide by them."
A careful examination of the record on the first trial and a comparison with the record on the second trial has led us to the conclusions that the question of the compliance by the railway company with rule 1 was in issue on both trials; that this court, on the first appeal, held that there was not a compliance; that the main facts disclosed by the evidence on this issue at the second trial were substantially the same as the facts stipulated on the first trial, though more detailed in some respects.
We are not clearly convinced that the decision on the former appeal was erroneous and unsound, but on the contrary think it was correct; the parties were simply held to the plain, unequivocal provisions of the tariff.
The law of the case, therefore, applies and renders it unnecessary and improper for us to pass upon the merits of the question a second time.
The judgment is affirmed.
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270 F.2d 333
106 U.S.App.D.C. 140
Clarence THOMPKINS, Appellant,v.UNITED STATES of America, Appellee.
No. 14791.
United States Court of Appeals District of Columbia Circuit.
Argued July 8, 1959.Decided Sept. 10, 1959.
Mr. Ivan J. Potts (appointed by this court), for appellant. Mr. Nicholas J. Chase, Washington, D.C. (also appointed by this court), was on the brief for appellant.
Mr. William W. Greenhalgh, Asst. U.S. Atty., with whom Messrs. Oliver Gasch, U.S. Atty., and Carl W. Belcher, Asst. U.S. Atty., were on the brief, for appellee. Messrs. Harold D. Rhynedance, Jr., and Edward C. O'Connell, Asst. U.S. Attys., also entered appearances for appellee.
Before EDGERTON, WILBUR K. MILLER, and BASTIAN, Circuit judges.
PER CURIAM.
1
This appeal is from a conviction of assault with a dangerous weapon. We find no error affecting substantial rights.
2
Affirmed.
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In the
Court of Appeals
Second Appellate District of Texas
at Fort Worth
No. 02-18-00191-CV
IN THE INTEREST OF K.S. AND E.S., § On Appeal from the 235th District
CHILDREN Court
§
of Cooke County (CV17-00339)
§ September 28, 2018
§ Opinion by Justice Meier
JUDGMENT
This court has considered the record on appeal in this case and holds that there
was no error in the trial court’s judgment. It is ordered that the judgment of the trial
court is affirmed.
SECOND DISTRICT COURT OF APPEALS
By /s/ Bill Meier
Justice Bill Meier
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565 F.2d 233
Leonard FAMBO, Petitioner-Appellant,v.Harold J. SMITH, Superintendent, Attica CorrectionalFacility, Respondent-Appellee.
No. 300, Docket 77-2084.
United States Court of Appeals,Second Circuit.
Argued Oct. 25, 1977.Decided Nov. 2, 1977.
Philip B. Abramowitz, Buffalo, N. Y. (Robert C. Macek and Gross, Shuman, Laub & David, Buffalo, N. Y., on the brief), for petitioner-appellant.
Alan R. Sharett, Asst. Atty. Gen. (Louis J. Lefkowitz, Atty. Gen. of the State of New York, Samuel A. Hirshowitz, First Asst. Atty. Gen., and Emanuel M. Kay, Asst. Atty. Gen., New York City, on the brief), for respondent-appellee.
Before LUMBARD, MULLIGAN and MESKILL, Circuit Judges.
PER CURIAM:
1
Leonard Fambo appeals from an order of the Western District (Curtin, Ch. J.) which dismissed his petition for a writ of habeas corpus. Subsequent to filing his petition in the district court, Fambo exhausted his state court remedies.
2
In April 1971, an Onondaga County Grand Jury indicted Fambo on two counts for possession of dynamite with intent to use in violation of § 265.05(7) of the New York Penal Law (now § 265.04). The first count alleged that Fambo had such possession on November 29, 1970 and the second count alleged similar possession for December 1, 1970. Subsequently, defendant with his counsel entered into plea negotiations with the district attorney as a result of which it was agreed that, in return for a plea of guilty to the lesser included offense of possessing dynamite, the district attorney would recommend and the court would agree to impose a sentence of five years. At the same time, the district attorney moved to dismiss count one and the plea was taken on count two. Thus, on October 27, 1972 Fambo pleaded guilty to possession of an incendiary device "on or about December 1, 1970" in violation of § 265.05(1) of the Penal Law, then a class D felony. Two months later, County Court Judge Gale sentenced Fambo to an indeterminate term of imprisonment the maximum of which was five years.
3
On March 27, 1974, at an unrelated trial of Fambo in the District Court for the Western District, it was disclosed that on November 29, 1970, David Stevenson of the Onondaga County Sheriff's Department discovered a tube of dynamite in a field, removed and destroyed its contents, and repacked the tube with sawdust.1 Both parties here concede that the destroyed dynamite was the same as that which Fambo was charged with possessing. At the time of the plea and sentencing in the instant case, the defendant apparently acted on the belief that the authorities still possessed the dynamite, and that dynamite had been in the tube on both November 29 and December 1, 1970. In any event, at sentencing neither the court nor the defendant was advised of the November 29 removal and destruction of the dynamite.
4
It is undisputed that Fambo on or about December 1, 1970 possessed the dynamite at the place where it was found, and so it is clear that he was guilty of that offense, as he admitted by his plea on October 27, 1972, as well as at sentencing on December 27, 1972. "On or about December 1, 1970" certainly must include November 29, and there is no reason to doubt that the stick, which Fambo undisputably possessed, contained dynamite on November 29. Thus, if Fambo had gone to trial on count two, he could have been convicted on the evidence of what was found on November 29, 1970. The difference of two days between the date in count two of the indictment and the date of Fambo's undisputed possession of the explosive would not be a fatal imperfection in the proof.2
5
It is beyond question, therefore, that Fambo was guilty of the offense for which he was sentenced, got what he bargained for, and that there was a factual basis for the plea. Consequently, we find no reason for disturbing the judgment of the Onondaga County Court. At worst, the Onondaga district attorney mistakenly elected to dismiss count one, alleging the "on or about November 29, 1970" offense, instead of count two, which charged precisely the same offense as having been committed "on or about December 1, 1970." It could not possibly have made any difference in the treatment of the defendant.
6
The only question before us is whether the conduct of the district attorney and the Onondaga County Sheriff's Office deprived Fambo of any constitutional right and whether his conviction is so tainted that it cannot stand. While we agree with Judge Curtin's conclusion that it was reprehensible for the district attorney not to disclose the substitution of sawdust for dynamite, we cannot see, in view of Fambo's undisputed possession dynamite a mere two days prior to the "on or about" date specified in the indictment, how any dereliction of duty on the part of the local law enforcement officers could possibly have so prejudiced the petitioner as to render his conviction unconstitutional.
7
Affirmed.
1
The papers before the district court gave no further details regarding Fambo's relation to the dynamite
2
We note that Fambo does not argue that he was improperly prejudiced because he was unaware that the Dynamite had been destroyed on November 29, 1970 and therefore was not available as evidence
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169 U.S. 295 (1898)
WILLIS
v.
EASTERN TRUST AND BANKING COMPANY.
No. 383.
Supreme Court of United States.
Submitted October 18, 1897.
Decided February 21, 1898.
CERTIORARI TO THE COURT OF APPEALS OF THE DISTRICT OF COLUMBIA.
*298 Mr. Calderon Carlisle and Mr. William G. Johnson for Willis and Johnson.
Mr. B.F. Leighton for the Trust and Banking Company.
*299 MR. JUSTICE GRAY, after stating the case, delivered the opinion of the court.
Sections 680-691 of the Revised Statutes of the District of Columbia, contained in chapter 19, entitled "Landlord and Tenant," are a reënactment of the act of Congress of July 4, 1864, c. 243, entitled "An act to regulate proceedings in cases between landlord and tenants in the District of Columbia." 13 Stat. 383.
By sections 681 and 682, (reënacting section 1 of the act of 1864,) "a tenancy at will shall not arise or be created without an express contract or letting to that effect, and all occupation, possession or holding of any messuage or real estate, without express contract or lease, or by such contract or lease the terms of which have expired, shall be deemed and held to be tenancies by sufferance;" and "all estates at will and sufferance may be determined by a notice in writing to quit of thirty days."
By section 684, (reënacting section 2 of the act of 1864,) "when forcible entry is made, or when a peaceable entry is made and the possession unlawfully held by force, or when possession is held without right, after the estate is determined by the terms of the lease by its own limitation, or by notice to quit, or otherwise," then, "on written complaint, on oath, of the person entitled to the premises, to a justice of the peace, charging such forcible entry or detainer of real estate, a summons may be issued to a proper officer, commanding the person complained of to appear and show cause why judgment should not be rendered against him."
The statute further provides as follows: The summons shall be served at least seven days before the appearance of the party complained of. If it appears by default, or upon trial, that the plaintiff is entitled to the possession of the premises, he shall have judgment and execution for the possession and costs; if the plaintiff fails to prove his right to possession, the defendant shall have judgment and execution for his costs. If, upon trial, the defendant pleads title in himself, or in another person under whom he claims the premises, the case is *300 to be certified to the Supreme Court of the District of Columbia, and each party is to recognize to the other, the defendant "to pay all intervening damages and costs and reasonable intervening rent for the premises," and the plaintiff to enter the suit and to pay all costs adjudged against him. An appeal to the same court may be taken by either party against whom judgment is rendered by the justice of the peace. Rev. Stat. D.C. §§ 685-689; Act of July 4, 1864, c. 243, §§ 2-4; 13 Stat. 383, 384.
This plaintiff is the mortgagee of land in the District of Columbia, under a deed of trust to secure the payment of certain bonds, in instalments payable in successive years, with interest; and providing that until default the mortgagor shall be permitted to possess and enjoy the property, and to take and use the income, rents, issues and profits thereof, "in the same manner, to the same extent and to the same effect, as if this deed had not been made;" but that, if any default be made, and be continued ninety days, the trustee may enter upon the property, and sell the same by public auction, or may pursue the ordinary remedy of foreclosure by entry or suit, as authorized by law.
The mortgagor assigned the property to an assignee for the benefit of creditors; the assignee made a lease in writing thereof for a year at a monthly rent; default was made and continued for ninety days; and the mortgagee, after giving the assignee and his lessee thirty days' notice to quit, instituted this process against them to recover possession under the landlord and tenant act of the District of Columbia.
The principal question presented by the record is whether, in a case like this, where there has been neither forcible entry nor detainer by force, a mortgagee entitled to possession after condition broken is within the scope and effect of the statute.
In Barber v. Harris, (1888) 6 Mackey, 586, affirmed by this court in Harris v. Barber, (1889) 129 U.S. 366, cited in support of the judgment below, this question was not and could not be decided. That case arose upon a writ of certiorari to a justice of the peace, by which his judgment for *301 possession under the statute was sought to be set aside upon allegations that the plaintiff was a purchaser at a sale under a mortgage, and the conventional relation of landlord and tenant did not exist between the parties, and therefore the justice of the peace had no jurisdiction. The ground on which both the Supreme Court of the District of Columbia and this court declined to set aside the judgment of the justice of the peace was, that the existence of the relation of landlord and tenant between the parties, and the jurisdiction of the justice of the peace over the case, were sufficiently shown by general allegations in the complaint that the plaintiff was entitled to the possession of the premises, and that they were detained from him and held without right by the defendant, tenant thereof by the sufferance of the plaintiff, and whose tenancy and estate therein had been determined by thirty days' notice to quit; and that these allegations could not be contradicted upon that writ of certiorari. See 6 Mackey, 594, 595; 129 U.S. 368, 371.
In Jennings v. Webb, (1892) 20 D.C. 317, 322, in which it was decided that one tenant in common could not maintain this form of proceeding against his co-tenant, Justice Cox, speaking for Justices Hagner and James, as well as for himself, said: "There seems to be a little misapprehension of the nature of this proceeding. While our rule requires the plaintiff to file a declaration, as in ejectment, that does not convert the proceeding into an action of ejectment at all, in which the plaintiff recovers upon the strength of his title. In this proceeding, unless he establishes the relation of landlord between himself and the defendant, no matter what the form of declaration is, he is not entitled to recover. I have always held that at special term, and that is the opinion that we entertain now. It is still a landlord and tenant proceeding."
In two earlier cases, a purchaser at a sale under a deed of trust in the nature of a mortgage had been declared, by the Supreme Court of the District of Columbia in general term, to be entitled to maintain this proceeding against the mortgagor, who had remained in possession without the plaintiff's consent, and had been served with a thirty days' notice to quit. *302 But in the first of those cases this was wholly obiter dictum, the appeal to the general term being dismissed because the judgment in special term was final; and in the other case no question appears to have been raised upon the construction of the statute. Luchs v. Jones, (1874) 1 McArthur, 345; Fiske v. Bigelow, (1876) 2 McArthur, 427.
Afterwards, in Loring v. Bartlett, (1894) 4 App. D.C. 1, the Court of Appeals, speaking by Chief Justice Alvey, reversing a judgment of the Supreme Court of the District of Columbia, and quoting from Birch v. Wright, 1 T.R. 378, 382, 383, refrained from expressing a definite opinion upon the question "whether the simple and ordinary relation of mortgagor and mortgagee involves the relation of landlord and tenant by implication of law, within the meaning and sense of the statute;" and maintained the suit, solely upon the ground that a provision, in a trust deed to secure the payment of promissory notes, by which the mortgagee and her heirs and assigns were to be permitted "to use and occupy the said described premises, and the rents, issues and profits thereof to take, have and apply, to and for her and their sole use and benefit, until default be made in the payment of said notes or any of them," constituted a re-demise from the mortgagee to the mortgagor, which would support a proceeding under the statute. The cases relied on in support of that decision were Georges Creek Co. v. Detmold, 1 Maryland, 225, 236, and some English cases, all of which were ordinary actions of ejectment, and none of them under statutes like that now in question.
The decision in Loring v. Bartlett was followed by the Court of Appeals in the present case, without further discussion. 6 App. D.C. 375, 383.
Upon full consideration of the terms of the act of Congress, and in view of the existing state of the law in this country at the time of its passage, this court is unable to concur in the conclusion of the Court of Appeals.
The common saying that a mortgagor in possession is tenant at will to the mortgagee has been often recognized to be a most unsafe guide in defining the relation of mortgagee and *303 mortgagor, or in construing statutes authorizing landlords to recover possession against their tenants by summary process before a justice of the peace.
In Moss v. Gallimore, (1779) Lord Mansfield said: "A mortgagor is not properly tenant at will to the mortgagee, for he is not to pay him rent. He is only so quodam modo. Nothing is more apt to confound than a simile. When the court, or counsel, call a mortgagor a tenant at will, it is barely a comparison. He is like a tenant at will. The mortgagor receives the rent by a tacit agreement with the mortgagee, but the mortgagee may put an end to this agreement when he pleases." 1 Doug. 279, 282, 283. And in Birch v. Wright, (1786) Mr. Justice Buller said: "He is not a tenant at will, because he is not entitled to the growing crops after the will is determined. He is not considered as tenant at will in those proceedings which are in daily use between a mortgagor and mortgagee; I mean in ejectments brought for the recovery of the mortgaged lands." 1 T.R. 378, 383.
Under early statutes of the State of New York, providing that any tenant at will, or at sufferance, or for years, holding over without permission of his landlord after the expiration of his term, or after default in the payment of rent, might be removed from the possession upon a proceeding commenced by the landlord before a justice of the peace, it was constantly held by the Supreme Court of the State that a mortgagee could not maintain this process against a mortgagor in possession; and Chief Justice Savage said that for some purposes, indeed, the mortgagor, after condition broken, was considered as tenant to the mortgagee; but that the statute "was clearly designed to afford a speedy remedy where the conventional relation of landlord and tenant existed, and not where that relation is created by operation of law;" and "the legislature never intended that the mortgagee should have a right to proceed under this statute to obtain possession of the mortgaged premises after forfeiture." N.Y. Stat. of 1820, c. 194; 2 Rev. Stat. of 1828, pt. 3, c. 8, tit. 10, §§ 28 & seq; Evertson v. Sutton, (1830) 5 Wend. 281, 284; Roach v. Cosine, (1832) 9 Wend. 227, 231, 232; Sims v. Humphrey, (1847) 4 Denio, 185, 187; Benjamin *304 v. Benjamin, (1851) 5 N.Y. 383, 388; People v. Simpson, (1863) 28 N.Y. 55, 56.
It is true, as has been heretofore observed by this court; that in the State of New York the courts of law had, by a gradual progress, adopted the views of courts of equity in relation to mortgages, and considered the mortgagor, whilst in possession and before foreclosure, as the real owner, except as against the mortgagee, and as having the right of possession, even as against the mortgagee; whereas by the law of Maryland, prevailing in the District of Columbia, the legal estate is considered as vested in the mortgagee, and, as soon as the estate in mortgage is created, the mortgagee may enter into possession, though he seldom avails himself of that right. Van Ness v. Hyatt, 13 Pet. 294, 299.
But the mortgagee has been equally held not to be entitled to maintain against the mortgagor a summary landlord and tenant process in States where, as in New England, the mortgagee is held to be the owner of the legal title. 1 Jones on Mortgages, § 58.
The Revised Statutes of Massachusetts of 1836, c. 104, §§ 2, 4-9, contained provisions very similar to those of §§ 2-4 of the act of Congress of July 4, 1864, as to the cases in which and the persons by and against whom the proceedings might be instituted, the service of summons, the form of judgment, and the removal of the case, by certificate or by appeal, into a court of record.
In that chapter of the Massachusetts statutes of 1836, section 2 was as follows: "When any forcible entry shall be made, or when an entry shall be made in a peaceable manner, and the possession shall be unlawfully held by force, and also when the lessee of any lands or tenements, or any person holding under such lessee, shall hold possession of the demised premises, without right, after the determination of the lease, either by its own limitation, or by a notice to quit, as provided in the sixtieth chapter," (section 26 of which provided that estates at will might be terminated by either party by notice of three months, or by the landlord by fourteen days' notice in case of non-payment of rent,) "the person entitled to the premises may *305 be restored to the possession thereof, in the manner hereinafter provided." And by section 4, "the person entitled to the possession of the premises" might obtain from a justice of the peace a summons to answer to a complaint charging the defendant with being in possession of the land in question, and holding it unlawfully and against the right of the plaintiff.
It was the settled construction of that statute by the Supreme Judicial Court of Massachusetts, that a mortgagee, even after he had entered for the purpose of foreclosure, could not maintain an action against his mortgagor to recover possession of the mortgaged premises. "Whilst the parties stood in the relation of mortgagor and mortgagee," said Chief Justice Shaw, "the defendant was not lessee, within the meaning of this statute. A mortgagor in possession is sometimes, in a loose sense, said to be tenant at will to the mortgagee. But he is not liable to rent, or to account for rents and profits; these he holds to his own use. He is like a tenant at will, because the mortgagee may enter upon the estate at his will, if he can do so peaceably, when not restrained by covenant." Larned v. Clarke, (1851) 8 Cush. 29, 31. And again: "The present statute contemplates three cases in which this process will lie: 1. Forcible entry; 2. Forcible detainer; 3. A tenant holding against his landlord, either (1) after the determination of a lease by its own limitation; or (2) after the expiration of a notice to quit duly given; or (3) after a notice of fourteen days, for non-payment of rent. In the present case, the proof shows no forcible entry, no forcible detainer, no holding over of a tenant of demised premises. These are the only cases contemplated in this statute in which this summary process will lie. Although, in a loose sense, a mortgagor in possession is said to be tenant at will of the mortgagee, yet he is not within the reason or the letter of the Revised Statutes, c. 104, § 2. He is not lessee, or holding under a lessee, or holding demised premises without right, after the determination of the lease. The remedies of a mortgagee are altogether of a different character, clearly marked out by law." Hastings v. Pratt, (1851) 8 Cush. 121, 123. See also Dakin v. *306 Allen, (1851) 8 Cush. 33; Gerrish v. Mason, (1855) 4 Gray, 432.
In chapter 137 of the General Statutes of Massachusetts of 1860, the provisions of the Revised Statutes of 1836, above mentioned, were substantially reënacted, section 2 being put in the following form: "When a forcible entry is made, or when a peaceable entry is made and the possession unlawfully held by force, or when the lessee of land or tenements, or a person holding under such lessee, holds possession without right, after the determination of the lease by its own limitation, or by notice to quit, or otherwise, the person entitled to the premises may be restored to the possession in the manner hereinafter provided." The words "or otherwise" were apparently added in that section, because of its having been decided, under the earlier statute, that "the determination of the lease by its own limitation" did not include its determination by the lessor's entry for breach of a condition in the lease. Fifty Associates v. Howland, (1846) 11 Met. 99; Whitwell v. Harris, (1871) 106 Mass. 532.
By section 5 of the statute of 1860, "the person entitled to the possession of the premises" may obtain from a justice of the peace a summons "to answer to the complaint of the plaintiff, for that the defendant is in possession of the lands," "which he holds unlawfully and against the right of the plaintiff."
The provision, above quoted, of the statute of 1860, which defines the circumstances under which this summary process may be commenced before a justice of the peace, is almost exactly like the corresponding provision of the act of Congress of 1864, as will appear by putting the two together, with those words of the Massachusetts statute which have been omitted in the act of Congress printed in italics, and the words added in the act of Congress enclosed in brackets, as follows: "When a forcible entry is made, or when a peaceable entry is made and the possession unlawfully held by force, or when the lessee of land or tenements, or a person holding under such lessee, holds possession [is held] without right, after the determination [estate is determined by the terms] of the lease by its own limitation, or by notice to quit, or otherwise."
*307 This provision, as incorporated in the act of Congress, though somewhat condensed in form, is essentially in the same words, and of precisely the same meaning, as the provision of the statute of Massachusetts. While it omits the words "the lessee of land or tenements, or a person holding under such lessee," it still, like the Massachusetts statute, (in cases where there is neither forcible entry nor forcible detainer,) is restricted to cases in which "the lease" has been determined, and differs in this respect from the provision in the first section of the act of Congress, which defines tenancies by sufferance.
The statute of Massachusetts and the act of Congress resemble each other in many other respects. Each authorizes "the person entitled to the premises" to recover possession by complaint to a justice of the peace. Each authorizes the complaint to be in general terms; in Massachusetts, alleging that the defendant is in possession of the land, and holds it unlawfully and against the right of the plaintiff; in the District of Columbia, "charging a forcible entry or detainer of real estate." Each requires the summons to be served seven days before appearance. The provisions as to the form of the judgment of the justice of the peace for either party are exactly alike in both statutes. Each statute provides that, when the title is put in issue, the case may be certified to a court of record; that from any judgment of the justice of the peace an appeal may be taken by either party to that court; and that upon such removal, either by certificate or by the defendant's appeal, the defendant shall recognize to the plaintiff, with sufficient sureties, to pay intervening rent and damages. Mass. Gen. Stat. of 1860, c. 137, §§ 6-10; Act of Congress of July 4, 1864, c. 243, §§ 2-4; Rev. Stat. D.C. §§ 684-689.
The resemblance between the provisions of the Massachusetts statute of 1860 and of the act of Congress of 1864 is so remarkable, that it is evident that the latter were taken from the former. This being so, the known and settled construction, which those statutes had received in Massachusetts before the original enactment of the act of Congress, must be considered as having been adopted by Congress with the text thus expounded. Tucker v. Oxley, 5 Cranch, 34, 42; Pennock v. *308 Dialogue, 2 Pet. 1, 18; Metropolitan Railroad v. Moore, 121 U.S. 558, 572; Warner v. Texas & Pacific Railway, 164 U.S. 418, 423. In Metropolitan Railroad v. Moore, just cited, where provisions of statutes of New York, regulating judicial procedure, had been incorporated by Congress, in substantially the same language, in the legislation concerning the District of Columbia, it was held that Congress must be presumed to have adopted those provisions as then understood in New York and already construed by the courts of that State, and not as affected by the previous practice in Maryland or in the courts of the District of Columbia.
Before the passage of the act of Congress of 1864, the Supreme Judicial Court of Maine had held that a mortgagee could not proceed against his mortgagor under a statute of that State, the leading sections of which provided that "a process of forcible entry and detainer may be commenced against a disseizor, who has not acquired any claim by possession and improvement; and against a tenant holding under a written lease or contract, or person holding under such tenant, at the expiration or forfeiture of the term, without notice;" "and against a tenant at will, whose tenancy has been terminated" by notice to quit, in which last case "the tenant shall be liable to the process aforesaid without further notice, and without proof of any relation of landlord and tenant." Maine Rev. Stat. of 1857, c. 94; Reed v. Elwell, (1858) 46 Maine, 270, 278, 279; Dunning v. Finson, (1859) 46 Maine, 546, 553. See also Sawyer v. Hanson, (1845) 24 Maine, 542; Clement v. Bennett, (1879) 70 Maine, 207.
Similar opinions have been expressed in cases arising in other States under statutes differing in language, but having the same general purpose. Davis v. Hemenway, (1855) 27 Vermont, 589; McCombs v. Wallace, (1872) 66 No. Car. 481; Greer v. Wilbar, (1875) 72 No. Car. 592; Necklace v. West, (1878) 33 Arkansas, 682; Nightingale v. Barens, (1879) 47 Wisconsin, 389; Steele v. Bond, (1881) 28 Minnesota, 267; Chicago, Burlington & Quincy Railroad v. Skupa, (1884) 16 Nebraska, 341. We have not been referred to, and are not aware of, a single case in any State in which a summary *309 process of this kind has been maintained by a mortgagee against his mortgagor, unless specifically given by distinct provision in the statute.
The view which has been generally, if not universally, entertained by the courts of the several States upon this subject has been well expressed by the Supreme Court of Minnesota in Steele v. Bond, above cited, as follows: "The act concerning forcible entries and unlawful detainers, so far as it affords a remedy for landlords against tenants who unlawfully detain the premises after a default in the payment of the rent, or the expiration of the term, must be construed as similar acts have always been construed, by the courts of other States, to apply only to the conventional relation of landlord and tenant. It was not intended as a substitute for the action of ejectment, nor to afford means of enforcing agreements to surrender possession of real estate, where either that relation does not exist or has not existed. The foundation fact upon which the jurisdiction rests is that the tenant is in possession of the land in consequence and by virtue of that relation, and unlawfully withholds possession after a default in the performance of the terms upon which he entered, or after his term has expired." 28 Minnesota, 273.
Considering the terms of the act of Congress, the settled construction, before the passage of that act, of the statute of Massachusetts from which it appears to have been taken, and the general course of decision in this country under statutes on the same subject, the reasonable conclusion is that, in order to sustain this form of proceeding, the conventional relation of landlord and tenant must exist or have existed between the parties.
A mortgagee holds no such relation to a mortgagor in possession. The mortgagor, though loosely called a tenant at will of the mortgagee, is such in no other sense than that his possession may be put an end to whenever the mortgagee pleases. Lord Mansfield, in Moss v. Gallimore, 1 Doug. 279, 283; Lord Selborne, in Lows v. Telford, 1 App. Cas. 414, 426; Shaw, C.J., in Larned v. Clarke, 8 Cush. 29, 31; Carroll v. Ballance, 26 Illinois, 9, 19. The mortgagee may take possession *310 at any time; but, so long as there has been no breach of condition of the mortgage, this right is rarely exercised, and the mortgagor is usually permitted, by oral or tacit agreement with the mortgagee, or by express stipulation in the mortgage, to remain in possession. 2 Bl. Com. 158; Moss v. Gallimore, above cited; Colman v. Packard, 16 Mass. 39; Flagg v. Flagg, 11 Pick. 475, 477; Jamieson v. Bruce, 6 Gill & Johns. 72, 75; Van Ness v. Hyatt, 13 Pet. 294, 299. Until the mortgagee takes actual possession, the mortgagor is not liable, without an express covenant to that effect, to pay rent, and is entitled to take the rents and profits to his own use. Teal v. Walker, 111 U.S. 242, 248-251, and cases cited; Freedman's Saving Co. v. Shepherd, 127 U.S. 494, 502; Larned v. Clarke, above cited.
When the mortgagor remains in possession with the assent of the mortgagee, without formal agreement, no one would think of saying that there was a lease from the mortgagee to the mortgagor, or that the relation of landlord and tenant existed between them. An express stipulation in the mortgage, that the mortgagor may remain in possession until breach of condition, is intended merely to put in definite and binding form the understanding of the parties as to the exercise of their rights as mortgagor and mortgagee, and not to create between them a distinct relation of tenant and landlord. Anderson v. Strauss, 98 Illinois, 485.
That such was the understanding and intention of the parties to the deed of trust in this case is apparent from its terms, by which the American Ice Company mortgages all its real estate, wharves, icehouses and other buildings and machinery; and it is provided that, until default, the mortgagor "shall be permitted and suffered to possess, manage, develop, operate and enjoy the plant and property herein conveyed, and intended so to be, and to take and use the income, rents, issues and profits thereof, in the same manner, to the same extent, and with the same effect, as if this deed had not been made."
The result is, that the plaintiff is not entitled to maintain this process, but must be left, so far as the aid of a court of *311 justice is requisite to secure the rights conferred by the mortgage, to the appropriate remedy of a writ of ejectment, or a bill of foreclosure. Comp. Stat. D.C. c. 48, § 1; c. 55, § 10; Hogan v. Kurtz, 94 U.S. 773; Hughes v. Edwards, 9 Wheat. 489.
Judgment of the Court of Appeals reversed, and case remanded with directions to affirm the judgment of the Supreme Court of the District of Columbia.
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263 F.3d 878 (9th Cir. 2001)
UNITED STATES OF AMERICA, PLAINTIFF-APPELLEE,v.MARK STEVEN HITCHCOCK, DEFENDANT-APPELLANT.
No. 00-10251
UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT
Argued and Submitted May 15, 2001Submission Withdrawn May 16, 2001
Resubmitted August 23, 2001*Filed August 23, 2001
Sarah Courageous, Honolulu, Hawai'i, for the defendant-appellant.
Steven S. Alm, U.S. Attorney, and Loretta Sheehan, Assistant U.S. Attorney, Honolulu, Hawai'i, for the plaintiff-appellee.
Appeal from the United States District Court for the District of Hawai'i Alan C. Kay, District Court Judge, Presiding. D.C. No. CR-98-00716-ACK.
Before: Betty B. Fletcher, William C. Canby, Jr. and Richard A. Paez, Circuit Judges.
BETTY B. FLETCHER, Circuit Judge:
1
We must decide whether military participation in a civilian criminal investigation violated the Posse Comitatus Act or 10 U.S.C. §§ 375. Because we conclude that the military's participation falls under the "independent military purpose" exception, we affirm the district court's order denying Hitchcock's motion to dismiss the charges against him or to suppress all evidence because of a violation of the Posse Comitatus Act and §§ 375. We must also decide whether evidence should be suppressed that was gathered under a search warrant obtained and executed on November 16, 1998, but mistakenly dated November 17, 1998, by the magistrate judge. Since we conclude that the search was within the scope of the warrant, we affirm the district court's order denying Hitchcock's motion to suppress the evidence seized at his home. Finally, we must decide whether Hitchcock's sentence violated Apprendi v. New Jersey, 120 S.Ct. 2348 (2000). Although we conclude that Hitchcock's sentence to a mandatory minimum based on a drug quantity determination by the district court does not violate Apprendi, we nevertheless vacate Hitchcock's sentence and remand for resentencing because Hitchcock was sentenced under 21 U.S.C. §§ 841(b)(1)(B), a provision we have recently held to be facially unconstitutional under Apprendi.
BACKGROUND
2
After the U.S. Army Criminal Investigation Division (CID) received information that Benjamin Lake, a U.S. Marine stationed in Hawai'i, was selling lysergic acid diethylamide (LSD) to other military personnel on his base, it began a joint investigation with the Naval Criminal Investigative Service (NCIS). Lake sold LSD to an undercover CID agent on October 31, 1998 and again on November 13, 1998. After the sale on November 13, NCIS agents arrested Lake. Lake agreed to cooperate with NCIS agents. He identified the defendant, Mark Hitchcock, as the source of the LSD. Because Hitchcock is a civilian, the lead NCIS agent on the case, Michael Moran, asked the Drug Enforcement Administration (DEA) to join the investigation. The DEA took control of the investigation, assigning Special Agent John Meade as the case agent. Two NCIS agents, Moran and Robert Rzepka, remained involved with the investigation. Under DEA Agent Meade's direction, Lake made two monitored calls to Hitchcock and discussed payment for LSD Lake had previously obtained. The calls were made from the DEA field office and were monitored using DEA equipment. NCIS Agent Rzepka brought Lake to and from the Naval brig so that Lake could make the calls.
3
On November 14, 1998, Lake met with Hitchcock, paying him for the LSD with DEA funds. On November 16, 1998, at the direction of the DEA, Lake made another monitored call to Hitchcock and ordered more LSD from him. Under DEA supervision, Lake met with Hitchcock later that same day and Hitchcock sold Lake additional LSD. After Lake purchased the LSD, DEA agents arrested Hitchcock and seized the LSD. The DEA sent the seized LSD to the DEA Western Regional Laboratory for analysis.1 Shortly after Hitchcock's arrest, DEA Agent Meade advised Hitchcock of his Miranda rights. Hitchcock waived his rights. NCIS Agents Moran and Rzepka were present at Hitchcock's interrogation. DEA Agent Meade conducted the interrogation, although NCIS Agent Moran also participated.
4
On November 15, 1998, NCIS Agent Moran conducted surveillance of Hitchcock's home, as did NCIS Agent Rzepka, along with DEA agents, the next day. On the day of Hitchcock's arrest, the DEA obtained a search warrant from a U.S. magistrate judge. After Hitchcock's arrest, DEA agents executed the warrant, searched Hitchcock's house, and seized evidence they discovered. NCIS Agent Rzepka assisted in the search, as did two CID agents who were present. DEA Agent Meade's report of the investigation states that of the ten drug exhibits recovered, four were seized by CID investigators. The search revealed a significant amount of drugs and drug paraphernalia. The DEA sent all of this evidence to the DEA Western Regional Laboratory for analysis.
5
Hitchcock was charged in a superseding indictment filed on April 21, 1999, with five counts. Count one of the indictment charged Hitchcock with possession with intent to distribute and distribution of "a mixture containing a detectable amount" of LSD, in violation of 21 U.S.C. §§§§ 841(a)(1) and 841(b)(1)(C). Counts two and three charged him with possession with intent to distribute and distribution of"one gram or more of a mixture containing a detectable amount " of LSD, in violation of 21 U.S.C. §§§§ 841(a)(1) and 841(b)(1)(B). Count four charged him with possession with intent to distribute (but not distribution of) "one gram or more of a mixture containing a detectable amount" of LSD, in violation of 21 U.S.C. §§§§ 841(a)(1) and 841(b)(1)(B). Count five charged Hitchcock with conspiracy to distribute "one gram or more" of LSD, in violation of 21 U.S.C. §§ 841.2
6
On March 24, 1999, Hitchcock filed a motion seeking to suppress the evidence obtained during the November 16, 1998, search of Hitchcock's house. Hitchcock argued that the search and seizure was conducted without a valid warrant and that no grounds existed to justify a search without a warrant. The search warrant DEA Agent Meade obtained recites that a search of Hitchcock's home is permitted "on or before the tenth (10th) day after the issuance date" of the warrant. Although DEA Agent Meade obtained the warrant on November 16, 1998, the U.S. magistrate judge dated the warrant November 17, 1998. Hitchcock argued that because the warrant was dated November 17, 1998, the search of his home on November 16, 1998 was performed without a valid warrant. The district court found that the magistrate judge had inadvertently written the wrong date and had corrected the date on the return copy of the warrant when DEA Agent Meade brought the error to his attention. Furthermore, the district court found that the officers had a good faith belief that was objectively reasonable that the warrant was valid. The district court therefore denied Hitchcock's motion. Hitchcock appeals from the district court's order denying his motion to suppress.
7
Hitchcock filed another motion on May 10, 1999, seeking dismissal of all charges against him and suppression of all evidence on the grounds that NCIS and CID participation in the investigation leading to Hitchcock's arrest violated the Posse Comitatus Act (PCA), 18 U.S.C. §§ 1385,3 and 10 U.S.C. §§ 375,4 both of which generally prohibit military involvement in civilian law enforcement. After hearing oral argument, the district court held that NCIS and CID involvement in the DEA's investigation of Hitchcock did not violate the PCA or §§ 375 because the military had only rendered "indirect assistance" to civilian law enforcement and such assistance is not prohibited by the acts. United States v. Hitchcock, 103 F. Supp. 2d 1226, 1229-30 (D. Hawai'i 1999). Alternatively, the court held that the investigation did not violate the acts because the military's participation arose out of "legitimate military concerns." Id. at 1230. Hitchcock appeals from the district court's order denying his motion to dismiss or suppress all evidence because of a violation of the PCA and §§ 375.
8
Hitchcock entered a conditional guilty plea to all five counts of the superseding indictment on September 17, 1999, reserving the right to appeal the district court's orders denying his motions to dismiss and suppress. He had no plea agreement with the government. While he admitted that the substances identified by the indictment contained a detectable amount of LSD, he did not concede "the actual weight or quality of the drugs," leaving that issue to be contested at sentencing. At the sentencing hearing on May 2, 2000, the government had three forensic chemists testify concerning the quality and weight of the LSD at issue in the indictment. Hitchcock's expert called into question the methods used by the government chemists to identify the LSD. However, Hitchcock's expert admitted that he did not carefully weigh the substance, nor did he analyze its chemical composition. After argument, the court made findings concerning the weight of the LSD:
9
The court finds that the government has established by a preponderance of the evidence that the weight of the--that there was LSD as to count one and the weight was .4 grams, as to count two was 1.1 gram, as to count three was 4.3 milligrams pure LSD and 2.0 grams, as to count 4 it was 9.3 milligrams of pure LSD and 3.1 grams weight.
10
Based on the total amount of LSD found by the court (13.6 milligrams), Hitchcock's base offense level was 12. See U.S.S.G. §§ 2D1.1(c)(14). The probation office's presentence report recommended and the district court awarded a two point downward adjustment for acceptance of responsibility, giving Hitchcock a total offense level of 10. With a criminal history category of II and an offense level of 10, the Sentencing Guidelines prescribe a sentence of eight to fourteen months' imprisonment. U.S.S.G. Ch. 5, Pt. A. However, 21 U.S.C. §§ 841(b)(1)(B) prescribes a mandatory minimum of five years' imprisonment for conviction of possession with intent to distribute and distribution of LSD in the amount of "1 gram or more of a mixture or substance containing a detectable amount" of LSD. 21 U.S.C. §§ 841(b)(1)(B)(v). Since counts two through five involved one gram or more of a mixture containing LSD, the mandatory minimum was implicated. The district court sentenced Hitchcock to five years' imprisonment for each count of the indictment, to be served concurrently.5 Hitchcock appeals from the district court's sentence, arguing that his sentence to the mandatory minimum under §§ 841(b)(1)(B) violated Apprendi v. New Jersey, 120 S.Ct. 2348 (2000), because the issue of drug quantity was not presented to a jury and found beyond a reasonable doubt.6
DISCUSSION
A. Posse Comitatus Act
11
Whether the Navy's involvement in Hitchcock's arrest violated the PCA is a mixed question of fact and law which is primarily legal. United States v. Roberts, 779 F.2d 565, 567 (9th Cir. 1986). We therefore review de novo the district court's determination of this issue. Id.
12
The PCA prohibits Army and Air Force personnel from participating in civilian law enforcement activities unless otherwise permitted by federal law. 18 U.S.C. §§ 1385; supra note 3. Although the Navy and Marine Corps are not included by name in the PCA, Congress passed legislation requiring the Secretary of Defense to "prescribe such regulations as may be necessary" to prohibit members of all branches of the military from participating in civilian law enforcement activities as well. 10 U.S.C. §§ 375; supra note 4. Pursuant to this congressional directive, the Secretary of Defense promulgated a Department of Defense (DoD) Directive regulating the cooperation of military personnel with civilian law enforcement officials. DoD Directive 5525.5 (Jan. 15, 1986) (as amended Dec. 20, 1989). The Secretaries of the Navy and Army issued regulations implementing DoD Directive 5525.5. SECNAV Instruction 5820.7B (Mar. 28, 1988); Army Regulation 500-51 (July 1, 1983).
13
These regulations generally prohibit "direct" military involvement in civilian law enforcement activities but permit "indirect" assistance such as the transfer of information obtained during the normal course of military operations or other actions that "do not subject civilians to[the] use [of] military power that is regulatory, prescriptive, or compulsory." DoD Directive 5525.5 §§ E4.1.7.2; see also id. §§§§ 4, E4.1.7.7 The regulations permit an exception to the general prohibition on direct involvement where the military participation is undertaken "for the primary purpose of furthering a military or foreign affairs function of the United States, regardless of incidental benefits to civilian authorities." Id. §§ E4.1.2.1; see United States v. Chon, 210 F.3d 990, 994 (9th Cir. 2000) (recognizing the independent military purpose exception to the prohibition against military involvement in civilian law enforcement activities).
14
In this case, the district court held that the participation of NCIS and CID agents in the investigation and arrest of Hitchcock and the search of Hitchcock's house and subsequent seizure of evidence did not violate the PCA or §§ 375 because the military agencies "merely provided indirect assistance to the DEA." Hitchcock, 103 F. Supp. 2d at 1229. In reaching this conclusion, the district court relied on our opinion in United States v. Kahn, 35 F.3d 426 (9th Cir. 1994). Kahn set forth three tests for determining whether military involvement in civilian law enforcement constitutes permissible indirect assistance: "[1] The involvement must not constitute the exercise of regulatory, proscriptive, or compulsory military power, [2] must not amount to direct active involvement in the execution of the laws, and [3] must not pervade the activities of civilian authorities." 35 F.3d at 431 (internal quotation marks and citation omitted).8 The district court held that NCIS and CID involvement constituted indirect assistance under Kahn because,
15
although [NCIS] Agent Moran participated in the interrogation of Defendant, his involvement was extremely minimal, and was limited to questions pertaining to distribution of drugs on a military base.[In addition], while it is true that [NCIS] Agents Moran and Rzepka participated in the surveillance and that Agents Moran and Rzepka, along with two Army CID agents, were present during the search of Defendant's home, all evidence was recovered by the DEA, it was the DEA who was in command of both the surveillance and the search, and it was the DEA who instructed the other agents about the extent of their participation.
16
Hitchcock, 103 F. Supp. 2d at 1229-30.
17
The district court's conclusion that NCIS and CID involvement in Hitchcock's case did not constitute"direct assistance" under the regulations may have been erroneous. Section E4.1.3 of the DoD Directive explicitly prohibits military personnel from participating in a search or seizure and also prohibits "[u]se of military personnel for surveillance . . . or as . . . investigators, or interrogators." DoD Directive 5525.5 §§§§ E4.1.3.2, E4.1.3.4. However, we conclude that participation of military personnel in the DEA's investigation of Hitchcock did not violate the PCA, §§ 375, or the regulations implementing §§ 375, because the military's involvement in this case falls within the "independent military purpose" exception, as the district court held in the alternative. See Hitchcock, 103 F. Supp. 2d at 1230. The regulations implementing §§ 375 explicitly permit direct assistance in civilian law enforcement "[i]nvestigations and other actions related to enforcement of the Uniform Code of Military Justice (UCMJ)." DoD Directive 5525.5 §§ E4.1.2.1.1. The UCMJ specifically prohibits military personnel from possessing and distributing LSD. 10 U.S.C. §§ 912a, art. 112a. It is undisputed that Hitchcock sold LSD to Lake, a U.S. Marine, who was, in turn, selling LSD to other military personnel. NCIS Agent Rzepka specifically testified that NCIS agents were involved in Hitchcock's interrogation in order to determine whether Hitchcock had sold drugs to other military personnel besides Lake. Military participation in Hitchcock's investigation for the purpose of determining the extent to which his LSD was being used and distributed on the military base was justified. The regulations also permit direct assistance in "[i]nvestigations and other actions related to the commander's inherent authority to maintain law and order on a military installation or facility." DoD Directive 5525.5§§ E4.1.2.1.3. Hitchcock's protestations notwithstanding, the proposition that the sale of LSD to persons who might use the drug on a military base or sell it to others on the base implicates the maintenance of law and order on a military installation is unassailable.
18
Because the participation of NCIS and CID agents in the investigation was permissible under the independent military purpose exception, the PCA and §§ 375 were not violated. Therefore, we affirm the district court's order denying Hitchcock's motion to dismiss the charges against him or to suppress all evidence.
B. Search Warrant
19
Hitchcock seeks to suppress the evidence seized pursuant to a misdated search warrant. Hitchcock, the government, and the district court frame the question as whether the agents' reliance on the warrant fell within the "good faith exception" to the exclusionary rule. As we have described it, the good faith exception to the exclusionary rule permits law enforcement officers reasonably to rely on search warrants that are later determined to be invalid: "If the executing officers act in good faith and in reasonable reliance upon a search warrant, evidence which is seized under a facially valid warrant which is later held invalid may be admissible." United States v. Michaelian, 803 F.2d 1042, 1046 (9th Cir. 1986) (citing United States v. Leon, 468 U.S. 897, 926 (1984); Mass. v. Sheppard, 468 U.S. 981, 988 (1984)). The good faith exception has no application here, where there is no dispute about the search warrant's validity but only about whether the agents executed the warrant before it was effective. Rather, the issue is whether the search was conducted within the scope of a warrant, though here the issue is temporal scope whereas in the ordinary case what is at issue are the items for which the search warrant was issued or the places the warrant authorizes to be searched. See, e.g., United States v. Furrow, 229 F.3d 805, 816 (9th Cir. 2000) (considering whether search of four "outbuildings" was properly within the scope of search warrant), overruled on other grounds by United States v. Johnson, 256 F.3d 895 (9th Cir. July 21, 2000) (en banc); United States v. Rude, 88 F.3d 1538, 1551-52 (9th Cir. 1996) (considering whether seized documents were outside the scope of search warrant).
20
We review de novo whether law enforcement agents exceeded the scope of a search warrant. United States v. Gorman, 104 F.3d 272, 274 (9th Cir. 1996). Whether a search exceeds the scope of a search warrant is an issue we determine through an objective assessment of the circumstances surrounding the issuance of the warrant, the contents of the search warrant, and the circumstances of the search. United States v. Rettig, 589 F.2d 418, 423 (9th Cir. 1978) ("In determining whether or not a search is confined to its lawful scope, it is proper to consider both the purpose disclosed in the application for a warrant's issuance and the manner of its execution."). The subjective state of mind of the officer executing the warrant is not material to our inquiry. United States v. Ewain, 88 F.3d 689, 694 (9th Cir. 1996) ("A policeman's pure heart does not entitle him to exceed the scope of a search warrant, nor does his ulterior motive bar a search within the scope of the warrant, where the warrant was properly issued.").
21
On November 16, 1998, DEA Agent Meade filed with the district court an application for a search warrant for Hitchcock's house. Agent Meade signed the application, as did U.S. Magistrate Judge Yamashita, below a sentence stating that the application was "[s]worn to before me, and subscribed in my presence: November 16, 1998 at Honolulu, Hawaii." Accompanying the application was an affidavit of Agent Meade, also signed by Magistrate Judge Yamashita below a sentence indicating that the affidavit was "[s]ubscribed and sworn to before me this 16th day of November, 1998." The affidavit does not state a date upon which the proposed search was to take place. DEA Agent Maybe executed the warrant on November 16, 1998, and left a copy of the warrant with Hitchcock's mother. The warrant left with Hitchcock's mother was dated November 17, 1998.
22
The district court found, and Hitchcock does not dispute, that although it was dated November 17, 1998, Magistrate Judge Yamashita signed and gave the warrant to the agents on November 16, 1998. Additionally, the district court also found, and Hitchcock again does not dispute, that when Magistrate Judge Yamashita subsequently learned that he had dated the search warrant November 17, 1998, he corrected the return copy of the warrant to read "November 16, 1998." Finally, Hitchcock points to no evidence in the record, nor can we find any, that would indicate that Magistrate Judge Yamashita had any reason to delay the effective date of the search warrant. Cf. United States v. Hugoboom, 112 F.3d 1081, 1085 (10th Cir. 1997) ("Many, if not most, search warrants are effective upon issuance and may be executed immediately thereafter."). Indeed, Hitchcock himself characterizes the magistrate judge's dating of the search warrant as"inadvertent."9
23
The circumstances surrounding the issuance of the search warrant, the contents of the warrant, and the circumstances surrounding the execution of the warrant indicate that Magistrate Judge Yamashita inadvertently postdated the search warrant by one day. We conclude that where an agent obtains a search warrant from the court and later that day conducts an otherwise valid search, the search is within the scope of the warrant, notwithstanding the fact that the warrant is post-dated by one day, so long as the evidence in the record indicates that the only reason the search warrant was postdated was the court's inadvertence. Consequently, we affirm the district court's order denying Hitchcock's motion to suppress the evidence seized during the November 16, 1998, search of his home.
C. Sentencing and Apprendi
24
Hitchcock pled guilty to count one of the indictment, which charged him with violating 21 U.S.C. §§§§ 841(a)(1) and 841(b)(1)(C), to counts two through four, which charged him with violating 21 U.S.C. §§§§ 841(a)(1) and 841(b)(1)(B), and to count five, which charged him with violating 21 U.S.C. §§ 841(a).10 21 U.S.C. §§ 841(b)(1)(B) prescribes a mandatory minimum sentence of five years' imprisonment for conviction of possession with intent to distribute and distribution of "1 gram or more of a mixture or substance containing a detectable amount" of LSD. By contrast, 21 U.S.C. §§ 841(b)(1)(C) prescribes a maximum sentence of twenty years' imprisonment, but no mandatory minimum for possession with intent to distribute and distribution of a mixture or substance containing a detectable amount of LSD, regardless of the quantity involved. In this case, the quantity of the mixture containing LSD was not presented to the jury. Rather, at sentencing, the district court found by a preponderance of evidence that the amount of mixture involved in counts two, three, and four was more than one gram in each case.11 The court therefore sentenced Hitchcock under §§ 841(b)(1)(B) to five years' imprisonment for each count, to be served concurrently, notwithstanding the fact that the guideline range for a conviction involving the quantity of drugs found by the district court for a person with Hitchcock's criminal history category is eight to fourteen months' imprisonment.
25
Hitchcock argues that because the issue of drug quantity was not submitted to a jury and found beyond reasonable doubt, his sentence to the mandatory minimum provision of §§ 841(b)(1)(B) violates Apprendi. See 120 S.Ct. at 2362-63 ("Other than the fact of a prior conviction, any fact that increases the penalty for a crime beyond the prescribed statutory maximum must be submitted to a jury, and proved beyond a reasonable doubt."). Hitchock's argument is foreclosed by our precedent. We have held that mandatory minimums do not implicate Apprendi. See United States v. Antonakeas, 255 F.3d 714, 728 n. 11 (9th Cir. 2001); United States v. Garcia-Sanchez, 238 F.3d 1200, 1201 (9th Cir. 2001).
26
However, we have recently held that, in light of Apprendi, 21 U.S.C. §§§§ 841(b)(1)(A) and 841(b)(1)(B) are facially unconstitutional. United States v. Buckland, 259 F.3d 1157 (9th Cir. Aug. 9, 2001). Because Hitchcock was sentenced under an unconstitutional provision, we vacate his sentence and remand for resentencing under 21 U.S.C. §§ 841(b)(1)(C), which has no mandatory minimum. It appears Hitchcock has served more than the maximum provided by the applicable guideline range.
CONCLUSION
27
The participation of CID and NCIS agents in Hitchcock's investigation was permissible under the "independent military purpose" exception. The search of Hitchcock's home was within the scope of the search warrant, notwithstanding the inadvertent post-dating. For these reasons, we affirm the district court's orders denying Hitchcock's motions to dismiss all charges and suppress evidence. Because Hitchcock was sentenced under an unconstitutional provision, we vacate his sentence and remand for resentencing.
28
VACATED AND REMANDED.
Notes:
*
This appeal was taken under submission following oral argument on May 15, 2001. The next day, the panel issued an order withdrawing submission pending the outcome in United States v. Antonakeas, 255 F.3d 714 (9th Cir. 2001). Antonakeas has since been decided, and we resubmit the case concurrent with the filing of this opinion.
1
CID sent the LSD obtained from Lake on October 31, 1998, and November 13, 1998, to the U.S. Army Criminal Investigation Laboratory in Forest Park, Georgia, for analysis.
2
Count one concerned the LSD Hitchcock sold to Lake on October 31, 1998; count two the LSD sold on November 13, 1998; count three the LSD sold on November 16, 1998; count four the LSD discovered at Hitchcock's house during the November 16, 1998 search.
With regard to the conspiracy count, the superseding indictment does not state that the conspiracy in which Hitchcock was alleged to have participated violated the drug conspiracy statute, 21 U.S.C. §§ 846. However, Hitchcock does not argue that the superseding indictment is defective.
3
The PCA states:
Whoever, except in cases and under circumstances expressly authorized by the Constitution or Act of Congress, willfully uses any part of the Army or the Air Force as a posse comitatus or otherwise to execute the laws shall be fined under this title or imprisoned not more than two years, or both.
18 U.S.C. §§ 1385.
4
Section 375 states:
The Secretary of Defense shall prescribe such regulations as may be necessary to ensure that any activity (including the provision of any equipment or facility or the assignment or detail of any personnel) under this chapter does not include or permit direct participation by a member of the Army, Navy, Air Force, or Marine Corps in a search, seizure, arrest, or other similar activity unless participation in such activity by such member is otherwise authorized by law.
10 U.S.C. §§ 375.
5
Count one of the indictment did not involve one gram or more of a mixture containing a detectable amount of LSD. Thus,§§ 841(b)(1)(B)'s mandatory minimum was not triggered. However, the district court's sentence of five years for this count is well within the twenty-year maximum of 21 U.S.C. §§ 841(b)(1)(C), the statutory provision specifying punishment without respect to drug quantity.
6
The district court had jurisdiction under 18 U.S.C. §§ 3231. Hitchcock filed a timely notice of appeal. We have jurisdiction under 18 U.S.C. §§ 3742(a) and 28 U.S.C. §§ 1291.
7
Because the Army and Navy regulations track the language of the DoD Directive, we cite only to the DoD Directive.
8
The Kahn court's tests were an interpretation of 32 C.F.R. §§ 213.10, a regulation that has since been withdrawn. See Removal of Parts, 58 Fed. Reg. 25,776 (Apr. 28, 1993). Section 213.10 embodied a prior version of DoD Directive 5525.5. See id. The provisions interpreted by the Kahn court remain in the current version of the Directive. Thus, Kahn's tests remain controlling.
9
The district court found that DEA Agent Meade would not have executed the search warrant had he known that it bore an incorrect date. As Hitchcock points out, it was DEA Agent Maybe, not Agent Meade, who executed the warrant. Agent Maybe did not testify as to whether he noticed the incorrect date and executed the warrant anyway, as Hitchcock also points out. However, since our inquiry is an objective one, we need not be concerned with the state of mind of the officer who executed the warrant.
10
See supra note 22.
11
The district court found that the amount of mixture in count one of the indictment was .4 grams. The court made no explicit finding as to count five, which charged conspiracy to distribute more than one gram of a mixture containing a detectable amount of LSD. However, the conspiracy statute provides for the same penalty as the substantive offense. 21 U.S.C. §§ 846.
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F I L E D
United States Court of Appeals
Tenth Circuit
UNITED STATES COURT OF APPEALS
MAY 9 2001
TENTH CIRCUIT
__________________________ PATRICK FISHER
Clerk
MICHAEL TRUELOVE,
Petitioner-Appellant,
v. No. 00-2381
(D. N.M.)
REED SMITH, Warden, Lea County (D.Ct. No. CIV-98-1484-SC/DJS)
Correctional Facility; ATTORNEY
GENERAL FOR THE STATE OF NEW
MEXICO,
Respondents-Appellees.
____________________________
ORDER AND JUDGMENT *
Before SEYMOUR, McKAY, and BRORBY, Circuit Judges.
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)(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. The court generally disfavors the
citation of orders and judgments; nevertheless, an order and judgment may be cited under
the terms and conditions of 10th Cir. R. 36.3.
Appellant Michael Truelove, a state inmate appearing pro se, appeals the
district court decision dismissing his habeas corpus petition, filed pursuant to 28
U.S.C. § 2254, as untimely filed. We grant Mr. Truelove’s request for a
certificate of appealability as to the timeliness issue, and remand to the district
court.
Mr. Truelove was convicted by a state jury of two counts of homicide by
vehicle and two counts of great bodily injury by vehicle. He also entered a guilty
plea and received a conviction of one count of failure to appear. On December
30, 1996, the state court sentenced Mr. Truelove to consecutive sentences totaling
eighteen years in prison, but suspended one three-year sentence. Mr. Truelove
unsuccessfully filed a direct state appeal, and on September 10, 1997, the New
Mexico Supreme Court denied his petition for writ of certiorari. On November
17, 1997, Mr. Truelove filed a Motion for Modification of Sentence pursuant to
New Mexico Rule of Criminal Procedure 5-801, in which he moved the state
district court to reconsider and reduce his sentence. The state district court never
ruled on the motion. On April 23, 1998, Mr. Truelove filed a state habeas
petition, which the state court denied. On May 28, 1998, the New Mexico
Supreme Court denied certiorari review of his habeas appeal. On November 19,
1998, Mr. Truelove mailed his federal habeas petition. In his petition, Mr.
-2-
Truelove raised multiple grounds challenging his conviction and sentence.
The federal district court referred the matter to a magistrate judge, who
issued proposed findings and a recommendation to deny the petition as time-
barred. In so finding, the magistrate judge recognized Mr. Truelove may not have
exhausted his state remedies as to three of the nine issues raised, making it a
mixed petition. Nevertheless, the magistrate determined any requirement for Mr.
Truelove to exhaust his state remedies would be futile given his petition was
untimely filed and any future federal habeas actions on the unexhausted claims
likewise would be untimely.
In finding Mr. Truelove’s petition untimely filed, the magistrate judge
determined Mr. Truelove’s conviction became final on September 10, 1997 when
the New Mexico Supreme Court denied certiorari on direct review, and he had
one year, or until September 10, 1998, to file his federal habeas petition. The
magistrate judge then tolled this limitation period by thirty-five days – i.e., the
time Mr. Truelove’s state habeas petition and appeal were pending in the state
courts – and concluded his federal petition was due on October 15, 1998. In so
holding, the magistrate judge determined Mr. Truelove’s motion for modification
of his sentence did not toll the limitation period because it was not a collateral
-3-
attack on his conviction and the state court never ruled on it. Finally, the
magistrate judge considered Mr. Truelove’s federal petition filed on November
19, 1998 – the day Mr. Truelove certified he mailed his petition. Because Mr.
Truelove’s petition was due October 15, 1998, the magistrate judge found it
untimely filed.
After Mr. Truelove filed objections thereto, the district court issued an
Order and Judgment filed July 21, 1999, adopting the magistrate judge’s proposed
findings and recommendation and denying Mr. Truelove’s petition. Mr. Truelove
then filed a response to the district court’s order requesting reconsideration,
which the district court denied. 1 Mr. Truelove next filed a motion with this court
1
Some clarification is necessary with respect to the district court’s orders. In the
Order and Judgment, time-stamped July 21, 1999 and made part of the district court
record, the district court acknowledged the filing of Mr. Truelove’s objections and stated
that, after making “a de novo determination,” it adopted the proposed findings and
recommendation of the magistrate judge. This order is signed by United States District
Court Judge Santiago E. Campos. However, Mr. Truelove apparently received a different
Order and Judgment, also stamp-filed by the clerk July 21, 1999, but not made part of the
district court record. It states Mr. Truelove’s objections to the magistrate judge’s
proposed findings and recommendation “were not submitted within the ten days specified
by 28 U.S.C. § 636(b)(1) and have not been considered by this Court.” This Order and
Judgment is not signed by Judge Campos, but merely stamped with his name. In his
motion for reconsideration, Mr. Truelove, in part, offered reasons why he untimely filed
his objections. In denying Mr. Truelove’s motion and responding to his reasons for
untimely filing his objections, Judge Campos stated he in fact “considered [Mr.
Truelove]’s objections ... and made a de novo determination ... prior to entering [the]
Order and Judgment.” Under the circumstances, we can only presume the order Mr.
Truelove received was retracted prior to placement in the record, but inadvertently mailed
-4-
for leave to file a second or successive habeas petition, which we liberally
construed as a motion for extension of time to appeal and remanded to the district
court. On May 31, 2000, the district court denied the motion and this appeal
followed.
On appeal, Mr. Truelove contends the district court erred in failing to: 1)
toll the one-year limitation period during the pendency of his state motion for
modification of his sentence filed under “Rule 5-801 NMRA”; 2) apply the
mailbox rule to his state habeas pleadings in calculating the dates for tolling his
limitation period; or 3) use the mailbox rule in calculating the filing date of his
federal petition.
We begin with our jurisdiction over Mr. Truelove’s appeal. Although Mr.
Truelove did not file a formal Notice of Appeal within thirty-days, he filed, under
the prisoner mailbox rule, an appellate brief and motion to proceed on appeal in
forma pauperis on June 22, 2000 – i.e., within the allotted time period. These
to him. While such clerical errors are clearly unfortunate, we determine any error in
providing Mr. Truelove with a different Order and Judgment than that filed in the record
was harmless because the district court unequivocally stated it conducted a de novo
review of Mr. Truelove’s objections prior to denying his petition. Moreover, we note Mr.
Truelove does not raise on appeal any issues concerning the discrepancies in the district
court’s July 21, 1999 orders.
-5-
documents may serve as the functional equivalent of a notice of appeal. See, e.g.,
Smith v. Barry, 502 U.S. 244, 248-49 (1992) (holding an appellate brief filed
within the allotted time is the functional equivalent of a notice of appeal under
Fed. R. App. P. 3); Rodgers v. Wyoming Att’y Gen., 205 F.3d 1201, 1204 n.3
(10th Cir. 2000) (recognizing certain pro se documents may serve as functional
equivalent of notice of appeal); Hoover v. United States, 268 F.2d 787, 789 (10th
Cir. 1959) (holding a timely filed motion to proceed on appeal in forma pauperis
may serve as timely filed notice of appeal.) Accordingly, we have jurisdiction in
this case.
We next examine whether the district court correctly concluded Mr.
Truelove failed to timely file his federal habeas petition. “In reviewing the denial
of a habeas corpus petition, we review the district court’s factual findings under a
clearly erroneous standard, and it legal conclusions de novo.” Rogers v. Gibson,
173 F.3d 1278, 1282 (10th Cir. 1999), cert. denied, 528 U.S. 1120 (2000). A
state prisoner has a one-year period of limitation to file a federal habeas petition
challenging a state court judgment, and the limitation period generally begins to
run “on the date on which the judgment became final.” See 28 U.S.C.
§ 2244(d)(1)(A). To toll the limitation period, the courts shall not count “[t]he
time during which a properly filed application for State post-conviction or other
-6-
collateral review with respect to the pertinent judgment or claim is pending.” Id.
at § 2244(d)(2) (emphasis added).
Applying these principles, we address Mr. Truelove’s contention the
district court failed to consider his state motion, filed under “Rule 5-801 NMRA,”
as a collateral attack for the purpose of tolling the one-year limitation period. 2 As
previously stated, the magistrate judge acknowledged Mr. Truelove filed a motion
for modification of his sentence on November 17, 1997, which the state district
court never ruled on, but concluded the motion did not toll the limitation period
because it was not a collateral attack of the conviction, but merely sought a
reduction of his sentence.
Rule 5-801 states, in relevant part:
Modification of sentence. A motion to reduce a sentence may be
filed within ninety (90) days after the sentence is imposed, or within
ninety (90) days after receipt by the court of a mandate issued upon
affirmance of the judgment or dismissal of the appeal, or within
ninety (90) days after entry of any order or judgment of the appellate
2
Contrary to Mr. Truelove’s other contentions, the magistrate judge clearly
applied the Houston mailbox rule in determining Mr. Truelove filed his federal petition
after the one-year limitation period expired. As to applying the same mailbox rule to Mr.
Truelove’s state habeas filings, we have stated the Houston mailbox rule does not apply to
state habeas pleadings in New Mexico. See Adams v. LeMaster, 223 F.3d 1177, 1182-83
(10th Cir. 2000), cert. denied, 121 S. Ct. 1198 (2001).
-7-
court denying review of, or having the effect of upholding, a
judgment of conviction.... The court shall determine the motion
within ninety (90) days after the date it is filed or the motion is
deemed to be denied.
N.M. R. Crim. P. 5-801(B) (1997). The New Mexico Supreme Court has ruled a
denial of a § 5-801 motion for modification of a sentence is a final appealable
order. See State v. Neely, 876 P.2d 222, 224 (N.M. 1994).
Consequently, it is clear New Mexico intended § 5-801 motions as one
means for post-conviction relief from, or review of, a sentence. For tolling
purposes under § 2244(d)(2), we determine only whether the petitioner properly
filed for such state post-conviction relief, and not whether the motion is
procedurally barred or lacks merit. See Habteselassie v. Novak, 209 F.3d 1208,
1210-11 (10th Cir. 2000) (citing other circuit cases); Delancy v. Florida Dep’t of
Corrections, ___ F.3d ___, 2001 WL 336033, at *3 (11th Cir. Apr. 6, 2001).
While the state statute at issue discusses modification and reduction of a sentence,
it is not necessary for us to determine if the state procedure at issue is actually
intended for the purpose of challenging the legality or execution of the sentence.
See Delancy, ___ F.3d at ___, 2001 WL 336033, at *2.
Therefore, based on our de novo review of the applicable legal principles,
we disagree with the magistrate judge and district court that Mr. Truelove’s
-8-
motion is not a means of post-conviction review or collateral attack merely
because (1) no state court ruled on the motion, or (2) Mr. Truelove sought a
reduction of his sentence, rather than a challenge to his conviction. First, under
Rule 5-801, the motion was deemed denied after ninety days. Second, we find no
authority limiting “post conviction or other collateral review” of a “judgment or
claim” under § 2244(d)(2) to only challenges of a conviction, and not a sentence.
Thus, because Mr. Truelove’s motion for modification of his sentence tolled the
limitation period for ninety days, he timely filed his federal habeas petition at
issue in this appeal.
In order for this court to grant a certificate of appealability, Mr. Truelove
must make a substantial showing of the denial of a constitutional right as required
under 28 U.S.C. § 2253(c)(2). When the district court denies a habeas petition on
procedural grounds, as it did here, without reaching the underlying constitutional
claim,
a [certificate of appealability] 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 v. McDaniel, 529 U.S. 473, 484 (2000). In this case, it is clearly debatable
whether the district court made a correct procedural ruling. We therefore grant
-9-
Mr. Truelove a certificate of appealability on the procedural issue presented, and
remand for the purpose of resolving the merits of Mr. Truelove’s underlying
claims that the district court did not reach.
Accordingly we REVERSE the district court’s order denying Mr.
Truelove’s habeas petition on timeliness grounds and REMAND the case for
further proceedings consistent with this opinion.
Entered by the Court:
WADE BRORBY
United States Circuit Judge
-10-
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IN THE DISTRICT COURT OF APPEAL
FIRST DISTRICT, STATE OF FLORIDA
JOHN MOORE III, NOT FINAL UNTIL TIME EXPIRES TO
FILE MOTION FOR REHEARING AND
Appellant, DISPOSITION THEREOF IF FILED
v. CASE NO. 1D16-1058
JULIE L. JONES, SECRETARY,
FLORIDA DEPARTMENT OF
CORRECTIONS,
Appellee.
_____________________________/
Opinion filed June 13, 2016.
An appeal from an order of the Circuit Court for Leon County.
John C. Cooper, Judge.
John Moore III, pro se, Appellant.
Pamela Jo Bondi, Attorney General, and Kenneth S. Steely, General Counsel,
Florida Department of Corrections, Tallahassee, for Appellee.
PER CURIAM.
DISMISSED. This dismissal is without prejudice to appellant’s right to seek
review once a final order has been rendered. Kendrick v. McNeil, 6 So. 3d 657,
658 (Fla. 1st DCA 2009).
ROWE, KELSEY, and JAY, JJ., CONCUR.
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RECOMMENDED FOR FULL-TEXT PUBLICATION
Pursuant to Sixth Circuit I.O.P. 32.1(b)
File Name: 13a0261p.06
UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT
_________________
X
Plaintiff-Appellee, -
UNITED STATES OF AMERICA,
-
-
-
No. 12-3382
v.
,
>
-
Defendant-Appellant. -
REGIS ADKINS,
N
Appeal from the United States District Court
for the Northern District of Ohio at Cleveland.
No. 1:11-cr-00537-1—James S. Gwin, District Judge.
Argued: April 24, 2013
Decided and Filed: September 5, 2013
Before: GRIFFIN and KETHLEDGE, Circuit Judges; ZATKOFF, District Judge.*
_________________
COUNSEL
ARGUED: Jessica Morton, UNIVERSITY OF MICHIGAN LAW SCHOOL
FEDERAL APPELLATE LITIGATION CLINIC, Ann Arbor, Michigan, for Appellant.
Laura McMullen Ford, UNITED STATES ATTORNEY’S OFFICE, Cleveland, Ohio,
for Appellee. ON BRIEF: Jessica Morton, UNIVERSITY OF MICHIGAN LAW
SCHOOL FEDERAL APPELLATE LITIGATION CLINIC, Ann Arbor, Michigan,
Melissa M. Salinas, OFFICE OF THE FEDERAL PUBLIC DEFENDER, Toledo, Ohio,
Dennis G. Terez, OFFICE OF THE FEDERAL PUBLIC DEFENDER, Cleveland, Ohio,
for Appellant. Laura McMullen Ford, UNITED STATES ATTORNEY’S OFFICE,
Cleveland, Ohio, for Appellee.
*
The Honorable Lawrence P. Zatkoff, Senior United States District Judge for the Eastern District
of Michigan, sitting by designation.
1
No. 12-3382 United States v. Adkins Page 2
_________________
OPINION
_________________
ZATKOFF, District Judge. On November 22, 2011, a grand jury in the Northern
District of Ohio returned an indictment charging Appellant Regis Adkins (“Adkins”)
with being a felon in possession of ammunition in violation of 18 U.S.C. § 922(g)(1).
Adkins pleaded guilty to the charge on January 9, 2012.
On March 19, 2012, the district court sentenced Adkins to 46 months of
incarceration and three years of supervised release. Adkins now appeals his sentence
as procedurally and substantively unreasonable. For the following reasons, we affirm
the district court’s sentence.
I. BACKGROUND
On October 18, 2011, the Cleveland Police Department and the Bureau of
Alcohol, Tobacco, Firearms and Explosives responded to a report of gunshots being
fired at a Cleveland gas station. When the officers arrived, the manager of the gas
station provided them with a security video that had captured the shooting incident. The
four-minute composite video of the gas station’s surveillance footage, which was
admitted without objection at sentencing, shows a white sport utility vehicle (“SUV”)
driving through the gas station’s parking lot as Adkins appears to recognize the SUV.1
At approximately, 21:22:32 of the video, Adkins is shown pulling a handgun from the
walking cast boot he was wearing on his right foot. Walking with the gun at his side and
1
In his reply brief, Adkins raises—for the first time—an objection to the video submitted by the
government as Appendix B. Adkins claims that Appendix B may not be the same video shown at
sentencing. He also alleges that Appendix B differs from a previous video—Appendix A—that was
provided by the government and that Adkins used to prepare his appeal. Adkins’s objection is not well-
taken. With regard to the differences between the videos, Appendix A contains a single camera angle and
appears upside-down to the viewer; Appendix B is correctly oriented to the viewer and contains multiple
camera angles in split-screen format. Although in different formats, the contents of both videos are
identical. Additionally, Appendix B does appear to be the video shown at trial. When describing the video
prior to playing it at sentencing, the government indicated that the video was “approximately four minutes
long,” and contained multiple camera angles. R. 24: Tr. of Sentencing Hr’g, Page ID 83–84. This
description matches the characteristics of Appendix B. More significant, however, is the fact that no one
at the sentencing made any mention of the video appearing upside-down.
No. 12-3382 United States v. Adkins Page 3
pointed to the ground, Adkins casually paced around and zipped up his hooded
sweatshirt before raising the gun, pausing to take aim, and firing several rounds at the
SUV as it drove away on an adjacent side street. On the left side of the screen, a bullet
appears to strike the pavement in front of another vehicle parked near the SUV just as
the SUV begins to drive away.
On November 22, 2011, the government filed a one-count Indictment against
Adkins charging him as a felon in possession of ammunition under 18 U.S.C.
§ 922(g)(1). On January 5, 2012, Adkins pleaded guilty without a plea agreement and
issued a statement accepting responsibility for his actions.
On March 19, 2012, Adkins appeared in the district court for sentencing. The
Presentence Report (“PSR”) recommended a base offense level of 20 under U.S.S.G.
§ 2K2.1(a)(4)(A). Adkins did not challenge the PSR’s recommendation in his
sentencing memorandum or orally at sentencing. Nor did he disagree with the
government’s position in its sentencing memorandum that Adkins committed the instant
offense after sustaining a felony conviction for a crime of violence—criminal gang
activity involving aggravated robbery and kidnapping—which triggered
§ 2K2.1(a)(4)(A)’s base level enhancement.
At sentencing, the district court calculated a base offense level of 20, implicitly
adopting the PSR’s finding that Adkins committed some part of the instant offense after
sustaining a felony conviction of a crime of violence. The court then added four levels
after finding that Adkins possessed ammunition in connection with another felony
offense—aggravated assault. Because Adkins accepted responsibility, the court reduced
the offense level by two, and subtracted an additional level at the government’s request.
Thus, the district court calculated a total offense level of 21.
The district court assessed Adkins’s criminal history at four points, placing him
in Category III. The court assigned three points for the attempted criminal gang activity
conviction and added an additional point for a juvenile incident in which Adkins was
charged with carrying a concealed weapon. In his sentencing memorandum, Adkins
argued that he was neither found guilty nor placed on probation in connection with the
No. 12-3382 United States v. Adkins Page 4
juvenile incident. Though acknowledging that the records of the juvenile incident were
less than ideal, the district court overruled the objection. Based on a total offense level
of 21 and a criminal history category of III, the court calculated an advisory range of 46
to 57 months.
The district court then considered Adkins’s history and characteristics. The court
made note of Adkins’s extremely troubled family circumstances, including his mother’s
past drug use and his absentee father. The court balanced this against Adkins’s previous
use of drugs, his lack of work history and education, and the fact that he had previous
involvement in violent incidents, including several cases involving firearms. The court
noted that the median sentence for firearm violations by a Category III offender is 37
months. Nevertheless, the court ultimately imposed a sentence of 46 months to be
followed by three years of post-release control. This appeal followed.
II. LEGAL STANDARD
This Court reviews sentences for procedural and substantive reasonableness.
Gall v. United States, 552 U.S. 38, 51 (2007). First, the Court must “ensure that the
district court committed no significant procedural error, such as failing to calculate (or
improperly calculating) the Guidelines range, treating the Guidelines as mandatory,
failing to consider the [18 U.S.C.] § 3553(a) factors, selecting a sentence based on
clearly erroneous facts, or failing to adequately explain the chosen sentence.” Id. If no
procedural error occurred, the Court must then “consider the substantive reasonableness
of the sentence imposed under an abuse-of-discretion standard.” Id. “The sentence may
be substantively unreasonable if the district court chooses the sentence arbitrarily,
grounds the sentence on impermissible factors, or unreasonably weighs a pertinent
factor.” United States v. Brooks, 628 F.3d 791, 796 (6th Cir. 2011). The Court affords
a rebuttable presumption of substantive reasonableness to sentences falling within the
applicable Guidelines range. Id.
No. 12-3382 United States v. Adkins Page 5
III. ANALYSIS
On appeal, Adkins presents four issues for the Court’s consideration: first,
whether the district court erred in applying a four-level enhancement for possession of
a firearm in connection with another felony pursuant to U.S.S.G. § 2K2.1(b)(6); second,
whether the district court miscalculated his base offense level; third, whether the district
court improperly assigned a criminal history point for the alleged juvenile conviction;
and fourth, whether the district court failed to adequately consider Adkins’s personal
history when considering the relevant factors under 18 U.S.C. § 3553(a).
1. FOUR-LEVEL ENHANCEMENT UNDER § 2K2.1(B)(6)
A four-level enhancement to a defendant’s base offense level applies if the
defendant “used or possessed any firearm or ammunition in connection with another
felony offense.” U.S.S.G. § 2K2.1(b)(6)(B). The increase applies if the government
“establish[es], by a preponderance of the evidence, a nexus between the firearm and an
independent felony.” United States v. Burns, 498 F.3d 578, 580 (6th Cir. 2007) (internal
citations omitted). “[A]nother felony offense” includes “any federal, state or local
offense . . . punishable by imprisonment for a term exceeding one year, regardless of
whether a criminal charge was brought, or a conviction obtained.” U.S.S.G. § 2K2.1,
cmt. n.14(C); United States v. Bullock, 526 F.3d 312, 317 (6th Cir. 2008). When
considering a challenge to a § 2K2.1(b)(6) enhancement, we review the district court’s
factual findings for clear error, giving “due deference” to the district court’s
determination that the firearm was used or possessed “in connection with” another
felony. United States v. Taylor, 648 F.3d 417, 431–32 (6th Cir. 2011). Pure questions
of law are reviewed de novo. Id. at 431.
The district court found that Adkins used a firearm “in connection with”
committing aggravated assault when he fired shots at the SUV. Adkins challenges the
district court’s application of § 2K2.1(b)(6) on two fronts. First, Adkins claims that he
fired the gun in self-defense and, as such, could not have committed aggravated assault.
No. 12-3382 United States v. Adkins Page 6
Second, Adkins argues that the district court had an insufficient factual basis to conclude
that he committed aggravated assault.
1. Self-defense
Adkins acknowledges that he fired shots at the SUV, but claims to have done so
in self-defense. He argues that the driver of the SUV initiated the altercation by firing
shots at Adkins and the nearby vehicle containing his brother, girlfriend, and child. The
district court found that self-defense was not supported by the record in this case. The
district court’s determination was not in error.
Under Ohio law, the burden falls on the defendant to demonstrate self-defense
by a preponderance of the evidence. To do so, the defendant must show:
(1) he was not at fault in creating the situation giving rise to the affray;
(2) . . . he ha[d] . . . a bona fide belief that he was in imminent danger of
death or great bodily harm and that his only means of escape from such
danger was in the use of . . . force; and (3) . . . he . . . [did] not . . .
violate[ ] any duty to retreat or avoid the danger.
State v. Williford, 551 N.E.2d 1279, 1281 (Ohio 1990) (internal quotation marks
omitted). “‘If the defendant fails to prove any one of these elements by a preponderance
of the evidence he has failed to demonstrate that he acted in self-defense.’” Id. (quoting
State v. Jackson, 490 N.E.2d 893, 897 (Ohio 1986)).
Adkins failed to meet his burden of showing self-defense by a preponderance of
evidence. First, Adkins failed to show—or even allege—that he did not give rise to the
incident. Adkins cannot, by mere declaration, establish that he only fired shots in
response to incoming gunfire. Indeed, the video gives no indication that Adkins was
under fire but instead shows Adkins firing at the SUV after it departed the parking lot
and was driving away—indicating that, at the very least, the driver of the SUV was
attempting to leave the scene. See State v. Jones, 2002 WL 1041740, *3 (Ohio App. 8th
Dist. 2002) (unpublished) (“appellant’s argument that the shots were fired in self-defense
. . . is without merit because the physical evidence revealed that the victim was shot from
behind . . . as the victim fled.”).
No. 12-3382 United States v. Adkins Page 7
More significant is the fact that Adkins presented no testimony to support his
self-defense claim, and the security video firmly dispels Adkins’s characterization of the
incident. The video is at odds with Adkins’s claim that bullets were coming from the
SUV, as the footage does not show bullets ricocheting near Adkins or his car. Instead,
the video only shows Adkins’s shell casings being discharged as he was firing his gun.
Id. There is nothing to indicate that officers recovered any shell casings other than those
found at the scene, which Adkins admitted to possessing. Even more notable, however,
is the fact that Adkins simply does not act as though he is under gunfire. He does not
appear to move with any urgency, nor does he attempt to seek any cover from the gunfire
he alleges was coming from the SUV. Instead, Adkins stood completely upright,
directly facing the SUV, and calmly raised his firearm, pointed it at the SUV, and fired
several shots. In short, the security video contradicts Adkins’s assertion that he was
acting in self-defense.
Adkins makes much of the district court’s statement at sentencing that there
“may be some argument” to self-defense, and of the PSR noting that “review of the
video suggested the defendant may have been firing return shots, in his defense[.]”
These statements, however, are not fatal to the district court’s finding. The district court
used a preponderance of the evidence standard. Under this standard, some evidence that
Adkins may have been acting in self-defense is not necessarily preclusive of an ultimate
finding that Adkins was not acting in self-defense. After viewing the video, the district
court ultimately found, in no uncertain terms, that it “[did not] find [self-defense] to be
supported in this case.” As discussed above, the video certainly supports such a finding.
Based on these facts, Adkins did not meet his burden of demonstrating self-defense by
a preponderance of the evidence.
2. Felonious and/or Aggravated Assault
At the sentencing hearing, the government argued that, by intentionally firing at
the SUV, Adkins committed either felonious assault, in violation of Ohio Rev. Code
§ 2903.11, or aggravated assault, in violation of Ohio Rev. Code § 2903.12—both of
which are punishable by imprisonment exceeding one year. The district court found that
No. 12-3382 United States v. Adkins Page 8
there is “sufficient evidence that supports . . . by a preponderance of the evidence, that
the Defendant was guilty of aggravated assault. I don’t find sufficient evidence of
felonious assault.”
In Ohio, felonious assault is knowingly causing or attempting to cause physical
harm to another by means of a deadly weapon. Ohio Rev. Code § 2903.11. Aggravated
assault is knowingly causing or attempting to cause physical harm to another by means
of a deadly weapon, while under the influence of sudden passion or in a sudden fit of
rage, either of which is brought on by serious provocation by the victim. Ohio Rev.
Code § 2903.12.
The record supports the district court’s finding that Adkins used the ammunition
in connection with felonious and/or aggravated assault. As discussed above, there is
insufficient evidence to support Adkins’s self-defense claim and Adkins offers no other
justification. The video indisputably shows that Adkins raised his firearm, took aim, and
fired several shots at an occupied vehicle. In the absence of self-defense or any other
justification, the video alone is sufficient to show that Adkins knowingly caused or
attempted to cause physical harm to another by means of a deadly weapon.
Adkins points out that the district court erred by making a finding of aggravated
assault, while at the same time rejecting a finding of felonious assault. According to the
district court, there is “sufficient evidence that supports that the Defendant . . . was guilty
of aggravated assault. I don’t find sufficient evidence on the felonious assault.” Though
hardly the significant error claimed by Adkins, the district court appears to have
misconstrued the elements of the two offenses and their interplay. The essential
elements of felonious assault and aggravated assault—knowingly causing or attempting
to cause physical harm to another by means of a deadly weapon—are identical. State
v. Baker, No. 3971, 1989 WL 65436 (Ohio Ct. App. June 16, 1989) dismissed, 545
N.E.2d 901 (Ohio 1989). In other words, aggravated assault is the same as felonious
assault, albeit with a reduction in penalty where the fact finder concludes that a serious
provocation existed. State v. Carter, 491 N.E.2d 709, 714 (Ohio 1985). Thus, the
No. 12-3382 United States v. Adkins Page 9
district court’s error in this regard was harmless. Accordingly, the district court
correctly applied the enhancement under § 2K2.1(b)(6)(B).
2. PREVIOUS CONVICTION OF A CRIME OF VIOLENCE
At sentencing, the district court adopted the PSR’s increased base offense level
of 20, finding that Adkins was previously convicted of attempted criminal gang
activity— a “crime of violence” warranting an enhancement under U.S.S.G
§ 2K2.1(a)(4)(A). The state court indictment charged Adkins with violating Ohio Rev.
Code § 2923.42A by engaging in “criminal conduct” as part of a criminal gang.2 The
predicate criminal conduct was listed in the indictment as follows:
assist[ing] in the commission of Aggravated Robbery . . . and/or
Kidnapping . . . and/or Carrying Concealed Weapon . . . and/or
Possession of Drugs . . . or as alleged [as substantive offenses] in Counts
1, 2, 3, 4, 7, all of which are incorporated as if fully restated herein.
(emphasis added). Adkins pleaded guilty to this charge and was sentenced to six months
of imprisonment to be followed by three years of post-release control.
On appeal, Adkins argues—for the first time—that his attempted criminal gang
activity conviction is not a qualifying “crime of violence” that warrants an enhancement
under § 2K2.1(a)(4)(A).3 Pointing to the indictment’s use of the term “and/or,” Adkins
argues that he pleaded guilty only to the non-violent predicate offenses listed in the
indictment—Carrying Concealed Weapon or Possession of Drugs.
The issue of whether a defendant’s prior conviction constitutes a “crime of
violence” requiring an increased base offense level under § 2K2.1(a)(4)(A) is a legal
question that we review de novo. See United States v. Martin, 378 F.3d 578, 580 (6th
Cir. 2004) (“giv[ing] fresh review to the legal question” of whether defendant had been
convicted of a “crime of violence” for an enhancement under § 2K2.1(a)(4)(A)). Courts
2
Count 8 was later amended to an attempt, rather than a completed offense.
3
As noted by both parties, plain error review does not apply because the district court did not ask
the Bostic question at sentencing. United States v. Bostic, 371 F.3d 865, 872 (6th Cir. 2004).
No. 12-3382 United States v. Adkins Page 10
determine whether a crime is violent by using a categorical approach, Taylor v. United
States, 495 U.S. 575, 602, (1990), whereby the courts “consider the offense generically”
and “examine it in terms of how the law defines the offense and not in terms of how an
individual offender might have committed it on a particular occasion.” Begay v. United
States, 553 U.S. 137, 141 (2008). If, however, it is possible to violate the state law in
a way that amounts to a crime of violence and in a way that does not, we may consider
the indictment, the plea agreement, the plea colloquy or “comparable judicial
record[s]”—collectively known as Shepard documents—to determine whether the
individual’s actual conduct necessarily establishes the nature of the offense. See United
States v. Mosley, 575 F.3d 603, 606 (6th Cir. 2009) (citing Shepard v. United States,
544 U.S. 13, 26 (2005); United States v. Ford, 560 F.3d 420, 422 (6th Cir. 2009)).
Because the criminal gang activity statute at issue here, Ohio Rev. Code
§ 2923.42, contemplates both violent and non-violent conduct, the government sought
to introduce the state court indictment and journal entry as Shepard documents to show
that Adkins necessarily pleaded guilty to a violent predicate offense.4 Adkins challenges
the use of such documents under Shepard and alternatively argues that, even if properly
reviewable, the documents do not necessarily show that Adkins was convicted of a crime
of violence.
It is against this background that we first turn to the threshold issue of whether
a state court journal entry like the one here constitutes a valid Shepard document—a
matter this Court has yet to specifically address. We find that it does.
In Ohio, a state court journal entry constitutes a judgment of conviction. See
Ohio Crim. R. 32(C) (“A judgment of conviction shall set forth the plea, the verdict, or
findings, upon which each conviction is based, and the sentence. . . . The judge shall
sign the judgment and the clerk shall enter it on the journal. A judgment is effective
4
Adkins asserts that the government waived its argument regarding the Shepard documents by
not addressing this issue in its initial brief. However, because Adkins questioned his prior conviction of
a violent crime for the first time on appeal, the government had no reason to present either document at
sentencing. After Adkins first raised the issue, the government filed a Motion to take Judicial Notice of
the indictment and journal entry, which we granted on April 22, 2013.
No. 12-3382 United States v. Adkins Page 11
only when entered on the journal by the clerk.”). See also State ex rel. Geauga Cty. Bd.
of Commrs. v. Milligan, 100 Ohio St. 3d 366, 370, 800 N.E.2d 361, 365 (2003) (“[An
Ohio] court of record speaks only through its journal entries.”). See also Schenley v.
Kauth, 160 Ohio St. 109, 111, 113 N.E.2d 625, 626 (1953) (“A court of record speaks
only through its journal and not by oral pronouncement or mere written minute or
memorandum.”) (citation omitted). “Were the rule otherwise it would provide a wide
field for controversy as to what the court actually decided.” Indus. Comm’n of Ohio v.
Musselli, 102 Ohio St. 10, 15, 130 N.E.2d 32, 34 (1921).
We have previously held that a state court judgment is reviewable under Shepard
where a sentencing court seeks to determine—for sentence enhancement purposes—the
offense to which a defendant pleaded guilty. See United States v. Armstead, 467 F.3d
943, 948 (6th Cir. 2006) (“A judgment falls within Shepard’s exception for ‘some
comparable judicial record’ to a plea colloquy or agreement, and therefore may be
examined by a sentencing court.”) (citing United States v. Beasley, 442 F.3d 386,
393–94 (6th Cir. 2006). Therefore, we find that a journal entry such as the one here
constitutes a valid Shepard document that is properly considered by a court in
determining the nature of a prior conviction.
Turning next to the information contained in the journal entry, we find it beyond
dispute that Adkins pleaded guilty to a crime of violence. The journal entry reads as
follows:
ON A FORMER DAY OF COURT THE DEFENDANT PLEAD
GUILTY TO ATTEMPTED, CRIMINAL GANG ACTIVITY
2923.02/2933.42A AS AMENDED IN COUNT(S) 8 OF THE
INDICTMENT . . . . THE COURT IMPOSES A PRISON SENTENCE
. . . OF 18 MONTH(S). . . . POST RELEASE CONTROL IS PART OF
THE PRISON SENTENCE FOR 3 YEARS FOR THE ABOVE
FELONY(S) UNDER R.C. 2967.28.
(emphasis added). The entry indicates that the state court imposed—as part of Adkins’s
sentence—a mandatory three-year term of post-release control under Ohio Rev. Code
§ 2967.28. Section 2967.28(B)(3) requires three years of post-release control “[f]or a
felony of the third degree that is an offense of violence and is not a felony sex offense[.]”
No. 12-3382 United States v. Adkins Page 12
Ohio Rev. Code § 2967.28(B)(3) (emphasis added). Notably, the only other subsection
permitting a maximum three-year post-release control term applies “if the parole board
. . . determines that a period of post-release control is necessary for that offender.” Ohio
Rev. Code § 2967.28(C) (emphasis added). Section 2967.28(C) is inapplicable here,
however, because the sentencing court—rather than a parole board—imposed Adkins’s
post-release control as part of his prison sentence. See State v. Fischer, 128 Ohio St.3d
92, 99, 942 N.E.2d 332, 340 (finding that, where a defendant is subject to post-release
control, the trial court must include the post-release control terms in the sentence).
Additionally, prior to his sentencing, Adkins was out on bond and was remanded
to custody after sentencing. See Motion to Take Judicial Notice, attachment 2. At that
point, Adkins had not yet been to the Ohio Department of Corrections and was not
subject to parole board control. Therefore, Adkins could not have received a mandatory
three-year post-release control sentence under § 2967.28 without pleading guilty to a
third degree felony that was a crime of violence.
Moreover, had Adkins pleaded guilty only to the concealed weapon or drug
charges, the court would have been required to provide notice to Adkins about a
discretionary post-release control term, of up to three years, that would be determined
later by the Ohio Parole Board under § 2967.28(C) and (D)(1). The adult parole
authority “determines whether [discretionary] post-release control is appropriate [under
Sections 2967.28(C) and D(1)], not the trial court.” State v. Warbington, 129 Ohio App.
3d 568, 571, 718 N.E.2d 516, 518 (1998); State v. Jones, 2012 WL 4789820, *2 (Ohio
App. 5th Dist. 2012) (“Appellant was never eligible for mandatory post-release control
as his third degree felony identity fraud [i.e., non-violent] did not involve harm or the
threat of harm.”). That the state court imposed a definite three-year term of post-release
control indicates that a discretionary range did not apply.
Adkins attempts to neutralize the information contained in the journal entry by
characterizing it as a “post-release control notation,” akin to a “special sentencing factor
notation” that arose in Larin-Ulloa v. Gonzalez, 462 F.3d 456, 468 (5th Cir. 2006). We
disagree with this characterization. The “special sentencing factor notation” in
No. 12-3382 United States v. Adkins Page 13
Gonzalez—that the offense in question involved a firearm—was not admitted to by the
defendant during his plea, nor was the notation part of the judgment of conviction. Id.
at 469 n. 13. Here, the post-release control provision was not a mere “notation”— it was
part of Adkins’s sentence. See Woods v. Telb, 89 Ohio St.3d 504, 512–13, 733 N.E.2d
1103 (2000) (finding post-release control part of the judicially imposed sentence). A
sentence—along with other information like the plea, verdict and factual
findings—forms a judgment of conviction once signed by the judge and entered on the
journal by the court clerk. See Ohio Crim. R. 32(C). As noted above, a judgment of
conviction is reviewable under Shepard.
Adkins also argues that the definite post-release control term contained in the
journal entry does not indicate that he was “necessarily” convicted of a crime of violence
because Ohio defines violent offenses more broadly than qualifying crimes of violence
at the federal level. This Court, however, has concluded that Ohio aggravated robbery
and kidnapping convictions constitute violent felonies. United States v. Sanders,
470 F.3d 616, 22 (6th Cir. 2006) (“affirm[ing] the district court’s conclusion that
aggravated robbery under Ohio law constitutes a violent felony”); United States v.
Kaplansky, 42 F.3d 320, 324 (6th Cir. 1994) (“a [kidnapping] crime committed under
Ohio Rev. Code Ann. § 2905.01, whether by force, threat of force, or deception,
categorically qualifies as a ‘violent felony’ under § 924(e)(2)(B)(ii)”).
For these reasons, the journal entry reflecting Adkins’s attempted criminal gang
activity conviction is a “comparable judicial record” under Shepard and, based on the
state court’s sentence of three years of post-release control, Adkins necessarily pleaded
guilty to a crime of violence. A base offense level of 20 was proper.
3. WHETHER THE COURT IMPROPERLY ASSIGNED A CRIMINAL
HISTORY POINT FOR AN UNDOCUMENTED JUVENILE ACCIDENT
This Court “review[s] a district court’s factual findings concerning a defendant’s
criminal history category, which must be based on a preponderance of the evidence,
under the clearly erroneous standard of review.” United States v. Wheaton, 517 F.3d
350, 368 (6th Cir. 2008).
No. 12-3382 United States v. Adkins Page 14
In applying a criminal history category of III, the district court included one point
for Adkins’s juvenile delinquent adjudication for carrying a concealed weapon. Adkins
objected, claiming that he was never found guilty of the offense. Though no specific
record of the incident was provided, Defense counsel alleged at the sentencing that
Adkins “was bound over as an adult, and the case was terminated . . . at some point, it
was dismissed as an adult. [The record] doesn’t reflect that.”
The record shows that the district court relied on sufficient evidence to assign a
criminal history point for Adkins’s juvenile delinquent adjudication. The U.S. Probation
Officer explained that, although his office “[does not] get hard copies of juvenile records
. . . because of the nature [of such records],” a report by the State of Ohio Adult Parole
Authority “did reflect the [adjudication].” The Parole Authority’s report showed “that
[Adkins] was adjudicated delinquent and placed on probation, with the Ohio Department
of Human Services, with the suspended commitment.” Id. The government also noted
that the record reflected that Adkins’s probation terminated on May 31, 2008, “due to
a bind over, and the next state offense . . . for aggravated robbery, two counts,
kidnapping, carrying concealed weapon, tampering with evidence, having [a] weapon
under disability, possession of drugs, and criminal gang activity, along with tampering
with evidence.” Id.
Notably, when the district court asked Defense counsel at the sentencing hearing
whether the record “show[s] a finding of delinquency or an adjudication,” defense
counsel admitted “that’s what the record indicates at this point” and did not produce any
evidence to support Adkins’s denial of the adjudication. In overruling the objection, the
court acknowledged that “generally the records [of the juvenile adjudication] are not
what you would hope,” as they raise questions of hearsay. The court, however, correctly
noted that “the hearsay rules don’t strictly apply in sentencing.” And, although “it would
have been much better if [the court] would have seen the actual order of adjudication in
the juvenile case” the court relied on the State Parole Authority’s report “as to what
some other record shows.” In the absence of any documentation to the contrary, the court
found this to be sufficient evidence of the adjudication.
No. 12-3382 United States v. Adkins Page 15
Adkins, however, insists that the government was required to provide additional
support for the adjudication to rebut his assertion that the adjudication was dismissed.
We disagree. “‘A defendant cannot show that a PSR is inaccurate by simply denying the
PSR’s truth. Instead, beyond such a bare denial, he must produce some evidence that
calls the reliability or correctness of the alleged facts into question.’” United States v.
Lang, 333 F.3d 678, 681 (6th Cir. 2003) (emphasis added) (quoting United States v.
Mustread, 42 F.3d 1097, 1102 (7th Cir. 1994)). If a defendant meets this initial burden
of production, “the government must then convince the court that the PSR’s facts are
actually true.” Id. (emphasis added) (quoting Mustread, 42 F.3d at 1102). The
defendant, however, “‘gets no free ride: he must produce more than a bare denial, or the
judge may rely entirely on the PSR.’” Id. (quoting Mustread, 42 F.3d at 1102). Aside
from bald assertions, Adkins failed to produce any evidence regarding the alleged
absence of the juvenile delinquent adjudication and thus did not carry his burden of
producing evidence that calls the adjudication into question. Nor does Adkins provide
documentation casting doubt on the validity of the State Parole Authority’s report.
Accordingly, the district court properly relied on the report when assigning one criminal
history point for Adkins’s juvenile delinquent adjudication.
4. ADKINS’S PERSONAL HISTORY FACTORS
Last, Adkins argues that his sentence was procedurally and substantively
unreasonable because the district court failed to adequately account for his personal
history when considering the factors set forth in 18 U.S.C. § 3553(a).
The Court affords guidelines-range sentences a “rebuttable presumption of
reasonableness,” thereby placing the onus on the defendant to demonstrate otherwise.
United States v. Brogdon, 503 F.3d 555, 559 (6th Cir. 2007). This “deferential abuse of
discretion standard” has both a procedural and a substantive component. Gall v. United
States, 552 U.S. 38, 51 (2007); United States v. Jeross, 521 F.3d 562, 569 (6th Cir.
2008).
A district court abuses its sentencing discretion if it “commit[s] [a] significant
procedural error, such as failing to calculate (or improperly calculating) the Guidelines
No. 12-3382 United States v. Adkins Page 16
range, treating the Guidelines as mandatory, failing to consider the 3553(a) factors,
selecting a sentence based on clearly erroneous facts, or failing to adequately explain the
chosen sentence—including an explanation for any deviation from the Guidelines
range.” Gall, 552 U.S. at 51.
A reviewing court also considers the substantive reasonableness of a sentence,
“tak[ing] into account the totality of the circumstances, including the extent of any
variance from the Guidelines range.” Id.; Jeross, 521 F.3d at 569. “A sentence may be
considered substantively unreasonable when the district court selects a sentence
arbitrarily, bases the sentence on impermissible factors, fails to consider relevant
sentencing factors, or gives an unreasonable amount of weight to any pertinent factor.”
United States v. Conatser, 514 F.3d 508, 520 (6th Cir. 2008). A district court may place
great weight on one factor if such weight is warranted under the facts of the case. United
States v. Zobel, 696 F.3d 558, 571–72 (6th Cir. 2012). Additionally, this Court has
recognized that the manner in which a district court chooses to balance the applicable
sentencing factors is beyond the scope of the Court’s review. United States v. Sexton,
512 F.3d 326, 332 (6th Cir. 2008); United States v. Ely, 468 F.3d 399, 404 (6th Cir.
2006). “[W]here a district court explicitly or implicitly considers and weighs all
pertinent factors, a defendant clearly bears a much greater burden in arguing that the
court has given an unreasonable amount of weight to any particular one.” Thomas,
2011 WL 4014345 at *2 (internal quotation marks and citation omitted).
Adkins argues that his sentence is unreasonable because of the relative weight
the district court gave to applicable § 3553(a) factors. This claim is beyond the scope
of our review. Sexton, 512 F.3d at 332; Ely, 468 F.3d at 404. While Adkins contends
that the district court “gravely understate[d] the physical abuse . . . [he] suffered,” this
claim is merely a request to “balance the factors di[f]ferently than the district court did.”
Ely, 468 F.3d at 404. As this Court has explained, the scope of appellate review includes
examining “whether the sentence is reasonable, as opposed to whether in the first
instance we would have imposed the same sentence.” Id. See also United States v.
Phinazee, 515 F.3d 511, 521 (6th Cir. 2008) (noting that “appellate courts must respect
No. 12-3382 United States v. Adkins Page 17
the role of district courts and stop substituting their judgment for that of those courts on
the front line”).
Adkins’s claim that the district court should have given his family circumstances
more weight is unpersuasive. The district court noted Adkins’s “extremely troubled
family circumstances,” including the absence of his father and his mother’s drug
addiction. The court further acknowledged that, although Adkins’s mother appeared to
have overcome her drug addiction, “it obviously had an impact upon him,” all of which,
the court found, “suggest[ed] that the Defendant could be sufficiently punished by a
somewhat lesser sentence.” But the court also noted several factors that outweighed
these circumstances, including Adkins’s “drug dependency,” “involve[ment] in a number
of violent instances,” lack of “work history” and “drop[ping] out of school.” The court
found Adkins’s situation “somewhat more aggravating [than other felons in possession]
because of the use of the weapon” and because his “involve[ment] with the criminal
justice system quite a few times [was] . . . in some ways . . . more than that typically
[seen] by a Criminal History Category 3.” These statements show that the court properly
considered the applicable § 3553(a) factors in determining Adkins’s minimum
Guidelines sentence.
Last, Adkins’s claim that the district court impermissibly held his prior gunshot
injury against him is likewise misplaced. The court’s comments that Adkins had “been
shot in the leg” and had “a number of cases in the past where [he had] been involved
with firearms,” as well as its comments about Adkins’s drug dependency, are relevant
when assessing Adkins’s association with drugs, violence, and recidivism. The district
court had an interest in seeing that Adkins’s sentence reflected the seriousness of the
offense; in affording adequate deterrence; and in protecting the public from further
crimes by Adkins. See 18 U.S.C. § 3553(a)(2)(A)–(C). The district court did not
commit error by considering Adkins’s gunshot wound in the context of his background,
history, and previous acts. After properly examining all the § 3553(a) factors, the court
acted within its discretion by placing more “weight on one factor” because the particular
facts in this case warranted doing so. Zobel, 696 F.3d at 571–72.
No. 12-3382 United States v. Adkins Page 18
For the above reasons, the district court demonstrated that it adequately
considered Adkins’s history and characteristics and his “troubled family
circumstance[s].” Adkins’s displeasure with the manner in which the district court
balanced the § 3553(a) factors is simply beyond the scope of our review and insufficient
to defeat the presumption of reasonableness afforded to his minimum sentence.
IV. CONCLUSION
The district court did not err in sentencing Adkins to 46 months of incarceration.
First, the court properly applied an enhancement for Adkins’s use of ammunition in
connection with another felony offense. Second, the district court calculated the correct
base offense level given Adkins’s prior conviction for a violent felony. Third, the court
correctly assigned a criminal history point for a prior juvenile conviction. Last, the
district court fully considered Adkins’s personal history and characteristics before
imposing a sentence. Accordingly, we AFFIRM the sentence of the district court.
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. ..- -
'P'nrEAAaso-T GENEBAL
OF TEXAS
April 15, 1939
Ronomblo Stanl6y Timmina
County bttonmy
Barrison County
YPrshall, Tan6
Dear Sirs opinion WI. 040
R6r Authority of county auditor to
institute wit for benefit of
oounty to reaowr money paid out
under void contraat.
Thi6 D6partm6nt ir in receipt of your letter of F6bmary 22, 1939,
in whioh you requ66t our opinion a6 to whether a county auditor is author-
166d to bring ruit for the recovery of aounty fund6 illegaly paid out
under a void oontraot on the rrfu6al of the oom6irsioners' oourt or th6
wunty tmaeumr to bring 6uoh 6uit, under the authority of Article 1651,
Revi66d Civil Statut68, 1925, or under any other th6ory ofthe auditor
being a part Of the 6ystw of ohsal and bal6aosr owr the oommi6Pioaers~
oourt under our theory sf government.
Artiale 1651, Revi66d Civil Statutes, 1925, provide6 as follms:
6Ths auditor #Ml1 have a geneml oversight of all the books and record6
of all the offioer6 of the oounty, distriot or rtate, who may be author-
i66d or mquimd by law to receive or wlleot any money, finds, fees or
other property far the ~66 of, or belonging to, the oounty; 6nd he shall
me to the rtriat snforo6msnt of the law governing oounty finsnc66.6
Other provision6 of Title 34, Chapter 2, Revised Civil Statutes,
1925, 66 unended, provide in greater detail how the county auditor shall
6wroi66 hir general overright of the book6 md reoords of the county
offioer6 6nd 666 to the &riot snforosment of the law governing oouuty
rinanoer. In now of the60 Btntuts6 60 w6 find specifio provision6 auth-
oriringthe aounty auditor to bring suit to moov6r fund6 paid out Md6r
a void contract.
Ia &OSCPn V. fhhy Or mrriS, 58 Tex. 511, the Distriot Atfm-my
bmught suit against Loosaan and other runty official6 far the purpore Or
recovering from Loosoan certain moneys 6116gsd to have bean illegally paid
him under a contract 6mtered into with the Commissioners' Court and for
the further purpo.6 of enjoining the county offioials frommaking any
further payment under this contr6ot. Th6 court held that the District Attor-
n6y ma6 without authority to bring the suit against the will of ths Conrmis-
sionar6' Court and stated:
orabls Stanley Tim5n6, page 2 (O-310)
6Tb6 Corani66ion6rr~Court undouhtrdly has ths right t6 oau66 suit to be
5astitutsd In tb6 na6@ and for the kanefit of the county, and sxwpt wham
a ooncurr6nt right to do the 66me thing, or whor6 a nlxclu6i~r right 3~ a
rpeoif'i6da166 or ~606 ir 'bnf6rmd upon ram other trlbuaal or 6(hleother
ofY5cw ofiha gwonmsnt, the km6i66Ion6r6 I Court must be deemed to lx3th6
qUp6I 6x60~tI~6 head Of tb6 county, v66t6d lritb6%61USiV6 power to detEnv.ine
when l.6uit 6hall be Instituted In the name of and for th6 knsfit of the
oounty."
Ia brr611 ~6. Greene, Sl 8.K 651, the SuprQne Court again Etatad:
"Thor. lr6 many Inrtanosr iawhioh itmight b6 neoerrary to bring 6uSt in th6
nrm6 of the oouuty, or Inwhioh suit might be inrtituted againrt the county,
not ambnoed in ths terns of Art1016 260. In ruch 6aaer,ti6 ~i6.6iOlMr8
court would h676 the right to OC%ItrOlthe in6titUtiOn Of 6UOh 6Uit6, b66aU66
it bmr rot 3668 pen6Itted by law to any other officer or tribun61( . , ,6
fbrfm vs. lkvir, (Ccmi66ion or Appealr, 1057), loo 8.X (2d)
94, 16 a rocont 0166 In which taxprylng Oiti66a6 0r the oounty brought 6Uit
rgainrt the Oounty Judg6 md kurd66ion6r6, togethEr WItb th6 6UrEti66 on
thrir 6fPio5al bond8to x%oover fo‘rthe dl6gEd unlawful rxp6adIturer by
ruoh Offiwr6 0r county fundr. Wk5lr the court rOOOgni66d th6t in the ms-
jority of otbr juri6di6tion6 tWp6ylng o5ticmr may irrtitutr lad.pro66ouf6
l 6u5t to r6ow6r mOn6y unlawfully EXpEndOde it w66 h6ld that~undrr our ~d6-
05rion6 w6 b6~6 66tablSlrh6d6:oontrm-y 9~16, and th6t ruoh action should b
brought b>ltbo Oeun~y TrwaEUrW roldorktiolr 1716, whioh prtitideoc-
Vhr 00&y Trearumr 6brlli6op a true lqoount 0r th r r o o ipa tir
ndlqmd-
5turrr OC all moaeye wbiob rhall oomr into Na hand6 ty rirlm of biw office,
mad oftbo dobto due to and fmm hi6 oountyj and diroot pmreoutlon record-
5ag to law for the moovery of all debt6 that may k dur hia oounty, aad
ruporintemd tbo wlloot5oa6 thErEOf."
Tho Court rtated:
*Ordinar5ly tbo Wa65665onorr~ Court alone det6nalnor whotbor litigation
(hall bo 5not5tufod la khalr of tb6 county, but ia tbir inrturoo tb6 ma-.
jority of that oourt lr o tbo 01106obwgod with dorol5otloa of duty, ,aad
5t 5s thoroforo in no porition to lot for fbo oounty. b that rltuation
und6r tbo forogoiag ot6tuto, tb6 Oounty Troaruror, to wba6 the bond6.aro
payable, ha6 tbo rtitutory authority to protsot tb6 County'r iigbt.6nd
direct tho iartitution of ruIt in hi6 ammo forth0 u60 of tho oounty upon
those bondr."
The oourt then referred to Loo606n PI. County of EarrIr, 6upra,
6nd stated,
. -
Honorable Stanley Tinrmias,page S (o-310)
6ThIr court, a6 to determining that ther6 wa6 ho 6tatut6 authorizing the
Dirtriot bttornoy to Inatitut6 the 6uIt, lnnouxmed the rule that, sin06
the right to do 60 w66 v'66tedin th6 <itarmi6sIoa6rsaCourt, that rightmu6t
b6 hold to be 6%OlU6i~O,
“A6 abow pointed out, b&h the Colmni66ionerr I Court md the County Treasurer
are wrt6d by etatutor dth the right to Institut6 thin litigation. Sinc6
the formor I6 In a6 po6itiontu aot, the right of the latter to do 60 1 8lxolu-
61~6, unl666 thor6 ir oonforr6d upon the County or District bttorney byhti-
ole S39 tb6 666ourring right ... a question which we need not determin6.6
b6 TO intorprot the60 decIr$on6, the SqNme Court ha6 consi6ttantly
mnained camaitted to the prOpo6itiOn that 6Uit for ths b6n6fit of th6 county
mu& be 586titutod by tho Co6m5ralonerr' court, UX,l666666,66tatutory provisi-
011may be found luthorlsing 6aue cth6r 0rri00 to bring suoh ruit..
It 16, thsmfom, our opinion that the County Auditor does not
havi authority to In8tItute a suit for tho bone&t of the 6ountv to rncnvar
mcwypaid sat uadar a void wntmot; -+itbbdM ti0 hWd66iOl,Or6'
Qurt:&d, th@County ,Tr6arurorr6fUEO'to bring-the l$Ion.
Yours wry truly
b~OFdVEXGEl?EBILOFTEX&S
sy a/~C,cil c. cammack
Cecil C. Cmaok
Assistant
~CCC:Rregw
#TRwRD bPR 15, 1939
Gerald C. ti
ATTORUEX GESXtbL OF TEXAS
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IN THE COURT OF CRIMINAL APPEALS
OF TEXAS
NO. WR-69,428-01
EX PARTE LARRY JAMES WHITE, JR., Applicant
ON APPLICATION FOR A WRIT OF HABEAS CORPUS
CAUSE NO. 06-1235-CR IN THE 25TH DISTRICT COURT
FROM GUADALUPE COUNTY
Per curiam.
O R D E R
Pursuant to the provisions of Article 11.07 of the Texas Code of Criminal Procedure, the
clerk of the trial court transmitted to this Court this application for writ of habeas corpus. Ex parte
Young, 418 S.W.2d 824, 826 (Tex. Crim. App. 1967). Applicant pleaded guilty and after a period
of deferred adjudication, was adjudicated and convicted of burglary of a habitation and sentenced
to fifteen years' imprisonment. He did not appeal his conviction.
Applicant contends that he was coerced by his counsel, his probation officer, and the trial
court to sign a stipulation and judicial confession admitting to violations of his conditions of deferred
adjudication probation.
Applicant has alleged facts that, if true, might entitle him to relief. Strickland v. Washington,
466 U.S. 608 (1984); Ex parte Lemke, 13 S.W.3d 791,795-96 (Tex. Crim. App. 2000). In these
circumstances, additional facts are needed. As we held in Ex parte Rodriguez, 334 S.W.2d 294, 294
(Tex. Crim. App. 1960), the trial court is the appropriate forum for findings of fact. The trial court
shall provide Applicant's trial counsel with the opportunity to respond to Applicant's claim of
ineffective assistance of counsel. The trial court may use any means set out in Tex. Code Crim.
Proc. art. 11.07, § 3(d). In the appropriate case, the trial court may rely on its personal recollection.
Id.
If the trial court elects to hold a hearing, it shall determine whether Applicant is indigent. If
Applicant is indigent and wishes to be represented by counsel, the trial court shall appoint an
attorney to represent Applicant at the hearing. Tex. Code Crim. Proc. art. 26.04.
The trial court shall make findings of fact as to whether the performance of Applicant's trial
attorney was deficient and, if so, whether counsel's deficient performance prejudiced Applicant. The
trial court shall also make any other findings of fact and conclusions of law that it deems relevant
and appropriate to the disposition of Applicant's claim for habeas corpus relief.
This application will be held in abeyance until the trial court has resolved the fact issues. The
issues shall be resolved within 90 days of this order. If any continuances are granted, a copy of the
order granting the continuance shall be sent to this Court. A supplemental transcript containing all
affidavits and interrogatories or the transcription of the court reporter's notes from any hearing or
deposition, along with the trial court's supplemental findings of fact and conclusions of law, shall
be returned to this Court within 120 days of the date of this order. Any extensions of time shall be
obtained from this Court.
Filed: March 12, 2008
Do not publish
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United States Court of Appeals
Fifth Circuit
F I L E D
UNITED STATES COURT OF APPEALS
FIFTH CIRCUIT January 4, 2007
Charles R. Fulbruge III
Clerk
No. 06-40140
Summary Calendar
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
JOSE MIGUEL FIGUEROA-HERNANDEZ,
Defendant-Appellant.
_________________________________________________________________
Appeal from the United States District Court
for the Southern District of Texas
(1:05-CR-774-ALL)
_________________________________________________________________
Before DAVIS, BARKSDALE, and BENAVIDES, Circuit Judges.
PER CURIAM:*
Jose Miguel Figueroa-Hernandez appeals his guilty-plea
conviction and sentence for violating 8 U.S.C. § 1326(a) and (b) by
illegally reentering the United States after being deported
following an aggravated felony conviction.
Figueroa claims the district court erred, under the advisory
Guidelines, by enhancing his sentence pursuant to
§ 2L1.2(b)(1)(A)(ii) based on its determination that his 1994
*
Pursuant to 5TH CIR. R. 47.5, the court has determined that
this opinion should not be published and is not precedent except
under the limited circumstances set forth in 5TH CIR. R. 47.5.4.
-2-
conviction under TEX. PENAL CODE § 21.11(a) for indecency with a
child was a crime of violence. A review of the record shows that,
although Figueroa objected in district court to the enhancement, he
did so on grounds other than the following issue he raises here.
Therefore, we review only for plain error. E.g., United States v.
Cabral-Castillo, 35 F.3d 182, 188-89 (5th Cir.), cert. denied, 513
U.S. 1175 (1995). For plain error, Figueroa must show a clear or
obvious error affected his substantial rights. E.g., United States
v. Castillo, 386 F.3d 632, 636 (5th Cir.), cert. denied, 543 U.S.
1029 (2004). “If all three conditions are met, an appellant court
may then exercise its discretion to notice a forfeited error, but
only if ... the error seriously affects the fairness, integrity, or
public reputation of judicial proceedings.” United States v.
Cotton, 535 U.S. 625, 631 (2002) (internal quotations and citations
omitted).
Guidelines § 2L1.2(b)(1)(A)(ii) provides for a 16-level
increase in a defendant’s base offense level if he was previously
deported after being convicted of a felony crime of violence.
The accompanying Application Notes define a “crime of violence”
either as one of a list of enumerated offenses or as “any offense
under federal, state, or local law that has an element the use,
attempted use, or threatened use of physical force against the
person of another.” U.S.S.G. § 2L1.2, cmt. n.1(B)(iii) (2005).
The enumerated offenses include the “sexual abuse of a minor”.
Id.; see also United States v. Velazquez-Overa, 100 F.3d 418, 421-
-3-
422 (5th Cir.), cert. denied, 520 U.S. 1133 (1997) (concluding
sexual abuse of a minor is “inherently violent” and is, therefore,
an enumerated “crime of violence”). Figueroa contends his
conviction under § 21.11(a) did not constitute “sexual abuse of a
minor” because, under that statute, a victim can be as old as a day
under seventeen and therefore would not fall under the generic,
contemporary meaning of the term “minor” as it is used in the vast
majority of statutes proscribing sexual activity with or against
persons below a certain age.
United States v. Zavala-Sustaita, 214 F.3d 601 (5th Cir.),
cert. denied, 531 U.S. 982 (2000) is dispositive. It held the
victim of a § 21.11(a)(2) offense, “a child younger than 17 years,
is clearly a minor”. Id. at 604. (internal quotations omitted).
It further noted that a violation of § 21.11(a)(2) is “sexual abuse
of a minor” as that term is used in its “ordinary, contemporary,
[and] common meaning”. Id. Finally, although it is unclear under
which section of § 21.11 Figueroa was convicted both subsections
employ similar language. See § 21.11(a). Needless to say, there
was no clear or obvious error.
Figueroa also challenges the constitutionality of § 1326(b)’s
treatment of prior felony and aggravated felony convictions as
sentencing factors, rather than elements of the offense that must
be found by a jury. Figueroa’s constitutional challenge is
foreclosed by Almendarez-Torres v. United States, 523 U.S. 224, 235
(1998). Although he contends that Almendarez-Torres was
-4-
incorrectly decided and that a majority of the Supreme Court would
now overrule Almendarez-Torres in the light of Apprendi v.
New Jersey, 530 U.S. 466 (2000), we have repeatedly rejected such
arguments on the basis that Almendarez-Torres remains binding. See
United States v. Garza-Lopez, 410 F.3d 268, 276 (5th Cir.), cert.
denied, 126 S. Ct. 298 (2005). Figueroa concedes this claim is
foreclosed by Almendarez-Torres and raises it here only to preserve
it for further review.
AFFIRMED
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525 S.W.2d 860 (1975)
Gus HALL et al., Petitioners,
v.
Helen Frances WHITE, Respondent.
No. B-5038.
Supreme Court of Texas.
July 9, 1975.
*861 Foreman, Dyess, Prewett, Rosenberg & Henderson, Arthur D. Dyess, and Jesse R. Pierce, Houston, for petitioners.
Warren L. Eddington and C. Anthony Friloux, Jr., Houston, for respondent.
REAVLEY, Justice.
The complaint is that affidavits and testimony from prior probate proceedings and trial were admitted into evidence in the trial of this will contest in the district court. The Court of Civil Appeals upheld the admission of the evidence. 517 S.W.2d 683. We reverse and remand to the district court.
Bailey C. Hall died in 1968. An instrument dated in 1965 was admitted to probate in September, 1968, by the Judge of Probate Court No. 2 of Harris County. This document names Helen Frances White as independent executrix of the estate and devisee of the property. It appears to have been witnessed by Mrs. John W. Weaver and John W. Weaver.
In 1969 this suit was instituted by the brothers of the deceased to cancel the order admitting this will to probate. After trial in the probate court the will was upheld; an appeal was then taken to the district court under the procedure in effect in 1971.
The issue before the district court was whether Mr. and Mrs. Weaver had signed this will in the presence of the testator as witnessed to its execution. The contestants presented evidence which tended to show that the signatures were placed upon the document after 1965 and after the time of its signing by the testator.
The evidence in the record that the Weavers were proper witnesses to the execution of the will consists of an affidavit by Mrs. Weaver executed and filed with the probate court in September of 1968 at the time of original admission to probate, and the former testimony of Mrs. Weaver during the contested trial before the probate court.
The Court of Civil Appeals has held that the affidavit is admissible under the provisions of the Probate Code, V.A.T.S. §§ 15, 18 and 89. The Probate Code requires the county clerk to keep in the probate minutes the testimony upon which wills are admitted to probate and it makes certified copies of the probate minutes admissible in court. Sec. 89 provides: "Certified copies of ... the record of testimony... may be used in evidence, as the original might be, on the trial of the same matter in any other court, when taken there by appeal or otherwise." The emphasized words were added by the Legislature in the passage of the Texas Probate Code of 1955. By the addition of these words, the Legislature prevented the use of the record of an affidavit to prove the truth of matter asserted therein when that matter is a contested issue in a subsequent trial.
As for the former testimony of Mrs. Weaver which was given during the first trial and then read from a transcript at the second trial, its admissibility depends upon whether the predicate laid satisfies the former testimony exception to the hearsay rule. There is no question but that the testimony of Mrs. Weaver at the former trial was given on the same issues before the same parties, and that full opportunity *862 for cross-examination existed. The only question is the unavailability of the witness. Former testimony is not admissible if a witness is available at the subsequent trial. The party offering the former testimony must therefore prove unavailability, which means in Texas "that the witness is dead, or that he had become insane, or is physically unable to testify, or is beyond the jurisdiction of the court, or that his whereabouts is unknown and that diligent search has been made to ascertain where he is, or that he has been kept away from the trial by the adverse party." Lone Star Gas Co. v. State, 137 Tex. 279, 153 S.W.2d 681, 697 (1941); Houston Fire & Casualty Insurance Co. v. Brittian, 402 S.W.2d 509 (Tex.1966).
It does not suffice to show that the witness on the day of the subsequent trial is beyond the subpoena jurisdiction of the court. In White v. Natural Gas Pipeline Co., 444 S.W.2d 298 (Tex.1969), the witness whose former testimony was erroneously admitted was 800 miles distant from the courthouse on the occasion of the subsequent trial. The subpoena power of the trial court reached only 100 miles. Rule 176, Texas Rules of Civil Procedure. However, the testimony of the absent witness could have been taken by deposition, and for this reason the Court there held that the witness was "not outside of the jurisdiction of the court." 444 S.W.2d 303. Since the deposition of a witness residing outside of Texas may likewise be obtained (either by the witness voluntarily coming to Texas for that purpose or by taking his deposition at his place of residence pursuant to Art. 3746, Vernon's Ann.Civ.St.), the Texas rule has not been made to turn on whether the witness is within or without the state. Morris v. Davis, 292 S.W.2d 574 (Tex.Civ.App. 1927, writ ref'd); stohn v. Bryant, 283 S.W.2d 299 (Tex.Civ.App.1955, writ ref'd n. r. e.); Carter v. Irvine, 77 S.W.2d 247 (Tex. Civ.App.1934, no writ).
Mrs. Weaver left Harris County on a vacation trip the week before this trial began. It was only temporary and not a permanent absence. Respondent's arguments about the difficulty of an attorney in getting his case to trial and in knowing the whereabouts of all of his witnesses on the occasion of every setting are all reasons why he needed a deposition and are arguments that might have been made to the trial court in support of a motion for continuance. Respondent made no motion for continuance, nor does the record indicate that he gave advance notice to the petitioner that he would rely upon the former testimony of Mrs. Weaver.
It may seem incongruous that Texas would allow the admission of deposition testimony without regard to the availability of the witness (Rule 213, Tex.R.Civ.P.) and exclude former testimony where the witness is available. Distinguished writers have said that there is no distinction between the two. E. g., 5 Wigmore, Evidence § 1401 (Chadbourn rev. 1974). There is, indeed, no distinction so far as the lack of personal observation of the witness by the trier of fact. There is a difference to the adversary in his preparation for trial and in his meeting the adverse testimony. The contesting attorney is not so likely to have ready reference to transcribed testimony given at a former trial as he is to have available a copy of a deposition. There may be no written transcription of the former testimony; the rule has not required its proof to be by a method of that reliability. McCormick, Evidence § 260 (2d ed. 1972). Furthermore, the deposition rules now require that the witness supplement his testimony if, after the giving of the deposition, he discovers that he has testified incorrectly or that the facts have changed. Rule 186a, Tex.R.Civ.P. In the taking of a deposition the attention of a witness may be called to this duty to supplement, and further obligation of this nature may be placed upon the witness by agreement of the parties. No such duty may be imposed with respect to testimony at a former trial.
The affidavit and former testimony of Mrs. Weaver were not admissible. The *863 judgments of the Court of Civil Appeals and the district court are reversed, and the cause is remanded to the district court.
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8 Mass. App. Ct. 523 (1979)
395 N.E.2d 1303
JAMES J. STERANKO
vs.
INFOREX, INC. (and two companion cases).
Appeals Court of Massachusetts, Middlesex, Suffolk.
May 18, 1979.
October 29, 1979.
Present: KEVILLE, BROWN, & PERRETTA, JJ.
Evan Y. Semerjian for the defendant.
Edward R. Lev (Edward Woll, Jr., with him) for the plaintiff.
KEVILLE, J.
These cases involve appeals and cross appeals from an award of damages to the plaintiff James J. Steranko (Steranko) by a Superior Court judge acting on remand of the case after this court reviewed the merits of the underlying dispute between the parties. See Steranko v. Inforex, Inc., 5 Mass. App. Ct. 253 (1977). The facts pertaining to this dispute are set out in full in our previous opinion; the following is a summary of the facts relevant to this appeal. In 1968 Steranko, a computer process and packaging engineer, entered into an employment agreement which provided inter alia that he was to be employed by Inforex, Inc. (Inforex), in an "executive position" and that he could purchase Inforex stock subject to the restriction that the shares could not be sold, pledged, or transferred for five years following the date of the agreement.[1] Within this five-year period, Inforex had the right, subject to certain exceptions, to repurchase *525 the stock but would lose this right in the event that Steranko should be dismissed without cause. Under both the employment and shareholder's agreements, as well as a subsequent "Employee Stock Restriction Agreement," Steranko's purchase (after stock splits) totaled 34,000 shares. In 1969 Inforex released the restrictions on 8,000 of these, leaving 26,000 restricted shares. Between September, 1970, and May, 1971, Inforex took several actions which had the effect of altering and diminishing Steranko's responsibilities. These actions culminated on May 19, 1971, when Steranko was not reelected as a vice president of Inforex. On November 22, 1971, Inforex dismissed Steranko for failure to assign to the company a patent which he had developed and informed him of its intention to exercise its right to repurchase the 26,000 shares of stock still under restriction. Steranko refused to resell the stock and, on January 5, 1972, made a written demand upon Inforex and State Street Bank and Trust Company, the transfer agent for Inforex stock, to issue, on January 7, 1972, certificates for 22,200 of his shares without legends restricting their sale. On instructions from Inforex, the bank refused the demand and, on November 21, 1973, Steranko brought an action seeking removal of the restrictive legends and damages for Inforex's refusal to issue unrestricted certificates.
The behavior of Inforex in demoting Steranko and diminishing his responsibilities was found by the trial judge, sitting without a jury, and by this court on appeal to constitute a breach of the agreement to employ Steranko in an "executive position." Steranko v. Inforex, Inc., 5 Mass. App. Ct. at 262-265. We also held, contrary to a ruling of the judge, that this breach vitiated the restrictions on 24,000 shares of the Inforex stock owned by Steranko[2] and that Steranko was entitled both to specific *526 performance (the removal of the restrictive legends from certificates representing the 24,000 shares) and damages with respect to 22,200 of those shares. As to the latter, we determined that, under New York law,[3] "[t]he measure of damages is the difference between the market price at the time of Inforex's wrongful refusal [to authorize removal of the restrictive legends], or within such reasonable time thereafter as Steranko might have sold the stock, and the market price at the time of the trial." 5 Mass. App. Ct. at 267-268. We left it to the trial judge to determine the damages under that formula. Id. at 268.
After conducting an evidentiary hearing, the judge found that seven working days after January 7, 1972, the date of Inforex's wrongful refusal, was a "reasonable time" in which Steranko could have sold the 22,200 shares and that the "highest interim value" of a share of Inforex stock during this time was $33.25 on January 12, 1972. After a subtraction of damages owed Inforex by Steranko for refusal to resell to Inforex 2,000 shares purchased under the "Employee Stock Restriction Agreement," which was not affected by breach of the employment agreement, net damages for Steranko on the 22,200 shares amounted to $639,424.18. Ruling that Inforex's wrongful refusal was a conversion of the stock, the judge awarded interest running from November 21, 1973, the date Steranko brought his action for Inforex's refusal to remove the restrictions on the stock.
1. "Reasonable Time."
Inforex argues that the judge exceeded the direction of the rescript in our earlier opinion by holding an evidentiary hearing for the purpose of determining what could have been a "reasonable time" in which Steranko might have sold the 22,200 shares but for Inforex's wrongful refusal to remove the restrictions. The judge's action, *527 Inforex contends, was inconsistent with our determination that the matter was a question of law for the judge based upon undisputed facts. See Steranko v. Inforex, Inc., 5 Mass. App. Ct. at 268. In the circumstances, the judge, in his discretion, could have decided that the factual record was inadequate on the issue of damages and he could reopen the case in order to obtain more evidence before applying the principle of law set forth in our earlier opinion. Long v. George, 296 Mass. 574, 577 (1937). Carilli v. Hersey, 303 Mass. 82, 86 (1939). Nagle's Case, 310 Mass. 193, 197-198 (1941). See Garfield v. White, 326 Mass. 20, 25-26 (1950); Fisher v. MacDonald, 335 Mass. 429, 431 (1957).
Inforex argues that even if the judge were warranted in conducting an evidentiary hearing, his decision was erroneous as matter of law for two reasons. First, Steranko in his pleadings bound himself to the position that he would and could have sold the 22,200 shares on January 7, 1972. See G.L.c. 231, § 87. Thus, the judge was obliged to use the market price on that date instead of the highest interim value between January 7 and 18, 1972, as the measure of Steranko's damages. Apart from the question whether such a ruling would be consistent with our earlier opinion, we do not think that the pleadings can be fairly construed to confine Steranko to the position that he would and could have sold the 22,200 shares on January 7, 1972. In support of its contention that Steranko is bound to this date, Inforex refers to paragraph 19 of Steranko's declaration and to exhibits B and D to that declaration. See Mass.R.Civ.P. 10(c), 365 Mass. 752 (1974). Nothing in paragraph 19 or exhibit B can be construed as averring Steranko's willingness and ability to sell all 22,200 shares on January 7, 1972. In exhibit D, Steranko's counsel, replying to Inforex's refusal to remove the restrictions, stated that Steranko would hold Inforex liable for "any diminution in the value of the shares of Inforex stock which he could have and would have sold on Friday, January 7, 1972" but for Inforex's refusal, and "for the *528 diminution in value, if any, of all 26,000 shares from the value of such shares on January 7, 1972." The judge could have viewed these averments merely as attempts to preserve Steranko's right to damages by establishing that his intent in demanding removal of the restrictions was to sell the stock in the immediate future. There was no allegation that Inforex's refusal cost Steranko an opportunity to sell the stock to a ready and willing buyer or buyers on a certain date. The judge could have concluded that the phrase "could have ... sold," in light of the pleadings viewed as a whole, referred to Steranko's obtaining an indication (a "no action" letter) from the Securities and Exchange Commission that it would not require that he register his stock under the Securities Act of 1933 before selling it.
Inforex also argues that under New York law Steranko's damages must be measured from the date of the wrongful refusal (or, in the words of Inforex, from "a reasonable time thereafter of one day"). This interpretation of the rule would not only render the words "reasonable time" meaningless, but is not supported, as Inforex claims, by Riskin v. National Computer Analysts, Inc., 62 Misc.2d 605 (Sup. Ct. 1970), modified, 37 App. Div.2d 952 (N.Y. 1971). While the Supreme Court of New York, in determining whether Riskin suffered damages, used the price on the date of refusal itself (September 23, 1969) for the purpose of comparison with the price at the time of trial, it noted that "the shares ... sold since September 23, 1969 ... for approximately the same price as the price at time of trial." 62 Misc.2d at 609. Thus, that court did not require that the market price on the date of refusal be used to measure damages rather than a higher price reached during a "reasonable time thereafter." It appears that the stock had no higher value between September 23, 1969, and the time of trial. On appeal in Riskin the judgment was modified by the Appellate Division which held that the date of refusal was July 9, 1969, and not September 23, 1969. While the court used the price on *529 July 9 in the computation of damages, there was again no indication that the stock had a higher value at any time (reasonable or unreasonable) thereafter.
Also, Inforex's position does not comport with several other New York cases which hold that determination of a reasonable time depends on the circumstances of each case (Phillips v. Bank of Athens Trust Co., 202 Misc. 698, 702 [N.Y. Sup. Ct. 1952]) and that "under varying circumstances ... thirty days or fifteen days or sixty days would be such reasonable period." Mayer v. Monzo, 221 N.Y. 442, 446-447 (1917). See citations in Steranko v. Inforex, Inc., 5 Mass. App. Ct. at 268. See also Mullen v. Quinlan, 195 N.Y. 109, 115 (1909). Inforex argues that those cases, which involved a defendant's unauthorized sale of the plaintiff's stock, are not relevant to a mere refusal to remove a restriction on sale, the situation in this case and in Riskin. However, we relied on those cases in our previous opinion, and while the Riskin court did not cite them, its statement of the rule used in measuring damages comports with the rule stated therein. See Riskin v. National Computer Analysts, Inc., 62 Misc.2d at 609. Furthermore, in our view, there is a basic similarity between the situation of one who intends to sell stock which is wrongfully restricted and that of one who must repurchase stock wrongfully sold so as to warrant application of the same rule of law in the computation of damages. See Madison Fund, Inc. v. Charter Co., 427 F. Supp. 597, 609, 610 (S.D.N.Y. 1977).
The justification for fixing the date from which damages are measured within a "reasonable time" of the date of refusal rather than on the date of refusal itself, in cases involving wrongful sales of stock, reflects several considerations (see Gelb v. Zimet Bros., 34 Misc.2d 401, 403 [Sup. Ct. 1962], aff'd 18 App. Div.2d 967 [N.Y. 1963]). The most important of these is to give the rightful owner a reasonable opportunity to determine the trend of the market, and at what price to purchase "replacement" stock. Burhorn v. Lockwood, 71 App. Div. 301, 305 (N.Y. *530 1902). By analogy, Steranko, after he decided to dispose of his stock and took the first step in that direction with his demand on January 7, 1972, was entitled to a reasonable opportunity to determine the trend of the market and an advantageous time at which to sell the shares.
In ruling that the determination of a "reasonable time" must include a consideration of "(a) the time needed to remove any restrictive legends on the stock, (b) the time needed for the issuance of new [clean] certificates and (c) the time needed for an orderly disposition of the stock in the market," the judge applied correct principles of law comporting with our earlier opinion.
2. Evidentiary Hearing.
Inforex contends that the judge erred in permitting Steranko to introduce evidence pertaining to other sales of once restricted stock to show what would have been a "reasonable time" in which Steranko might have sold the 22,200 shares had the restrictions been removed. Inforex argues that this evidence was not relevant because Steranko failed to show that the circumstances of the actual sales were similar to those which would have attended the sale of 22,200 shares. The challenged evidence included testimony and exhibits pertaining to Steranko's demand for and State Street Bank's release of the 8,000 shares from which Inforex had voluntarily removed the restrictions and to Steranko's subsequent sales of 6,500 of these shares as well as other testimony and exhibits which were offered to show the average time between demand and release of restricted shares intended for sale by other individuals and the average time of obtaining the opinion of corporate counsel regarding the need for registration of these shares.
There was no error. As this evidence referred to the period just before and just after Inforex's refusal to release the 22,200 shares,[4] the judge could have concluded *531 that there was substantial identity between the circumstances of the other sales and those of the sale of the 22,200 shares. See Robitaille v. Netoco Community Theatre of No. Attleboro, Inc., 305 Mass. 265, 268 (1940); American Auto Sales, Inc. v. Massachusetts Port Authy., 2 Mass. App. Ct. 805 (1974). Moreover, the admission of this evidence was harmless since it appears to have been largely unreflected in the judge's findings (Piemonte v. New Boston Garden Corp., 377 Mass. 719, 734 [1979]; see note 5, infra,), at least with respect to the time required to obtain the opinion of counsel and then to issue certificates without restrictions.
Both parties argue that if it was proper to hold an evidentiary hearing on the issue of "reasonable time," then the judge drew an erroneous conclusion from the evidence in fixing the time as seven business days after Inforex's wrongful refusal on January 7, 1972. Not surprisingly, since the price of the stock rose immediately after January 7, 1972, Inforex argues that this was too much time and that three business days were sufficient; while Steranko contends that the period found by the judge was far too short to enable Steranko to make an orderly disposition of his stock. Where, as here, we have before us a transcript of the evidence, exhibits, and the judge's rulings, his findings will not be disturbed unless clearly erroneous although we may find facts in addition to those found by him. Taylor v. Lassell, 4 Mass. App. Ct. 539, 540 (1976). Steranko v. Inforex, Inc., 5 Mass. App. Ct. at 255. We perceive no such error in this instance. There was evidence adduced at the hearing which supports the judge's findings.[5]
*532 3. Increase in Value Between Trial and Delivery.
Inforex contends that Steranko has been made more than whole by the damage award inasmuch as he received (a) a sum amounting to the difference between the highest interim value of the stock during a reasonable time after Inforex's wrongful refusal and the time of trial and (b) the stock itself, which, by the time it was delivered to him free of restrictions on September 8, 1977, after our earlier opinion in this case, had increased about twofold over its value at the time of trial (June 18, 1974). This *533 increase in value, Inforex argues, gave Steranko more than he would have received had he sold the stock on January 7, 1972, or within a reasonable time thereafter, and should therefore be deducted from his damages. (Steranko argues that the risk of an increase in price between time of trial and the delivery of the shares should be borne by the wrongdoer, Inforex, and that the increased value of the stock at the time of delivery should not be deducted from his damages.)
Inforex's contention is not properly before us, inasmuch as Inforex failed to raise it before the judge upon remand on the question of damages. Inforex argues essentially that it was excused from raising the issue at that time because the judge was bound to apply the rule set out in our previous opinion that damages were to be measured from a reasonable time after the refusal to the time of trial. Although consideration of the change in value of the shares between the time of trial and that of delivery was not included in the formula directed to the trial judge upon remand, there was nothing in that direction which precluded Inforex from raising that issue before the judge. The purpose of the remand was to have the judge determine damages; and Inforex, at that time, should have raised any issue which it thought pertinent to that determination. Inforex cannot now complain of its failure to take advantage of that opportunity. See Fisher v. Fisher, 352 Mass. 592, 597 (1967). See also Shulkin v. Shulkin, 301 Mass. 184, 192 (1938); Morad v. Ramos, 330 Mass. 560, 563 (1953); Lexington v. Bedford, 378 Mass. 562, 567-568 (1979). Even assuming that Inforex were excused from raising that issue at the hearing before the judge, it has cited no New York authority, nor have we found any in circumstances similar to those presented here, calling for the assessment of damages as of the time of delivery of stock rather than at the time of trial.
4. Interest.
The parties dispute the proper date from which interest should be computed on Steranko's damages. Inforex *534 argues that the judge was correct in ruling that Inforex's refusal to transfer the restricted stock was a conversion, and that therefore interest was to be measured from the date of commencement of Steranko's action brought on November 21, 1973, in accordance with G.L.c. 231, § 6B. Steranko contends that Inforex's action was a breach of the employment agreement and that interest should be measured from the date of the "breach or demand" in accordance with G.L.c. 231, § 6C. As neither party has argued whether the law of New York or Massachusetts governs the determination of Steranko's right to interest or its rate (they appear to have assumed that the law of Massachusetts governs), we apply the law of this jurisdiction. Commercial Credit Corp. v. Stan Cross Buick, Inc., 343 Mass. 622, 625 (1962). Hobbs Brook Agency, Inc. v. North River Ins. Co., 7 Mass. App. Ct. 885, 887 (1979).
Whether or not Steranko's action regarding the stock should be characterized as one for conversion, our earlier opinion held that Steranko's remedy was generated directly by Inforex's breach of the employment agreement. We ruled that "the breach of the employment agreement by Inforex vitiated the restrictions under section 12 [of the employment agreement] on 24,000 shares of Steranko's stock and entitled him to have the restrictive legends removed from his certificates." Steranko v. Inforex, Inc., 5 Mass. App. Ct. at 267. Inforex had a duty under the employment agreement to issue transferable certificates so long as Steranko did nothing to forfeit that privilege. That duty arose before the expiration of the five-year term prescribed in § 12 of the agreement when Inforex breached the contractual provision that Steranko be employed in an "executive position." Also, were Steranko's remedies not contractual in nature, this issue would not have been determined under New York law, which became applicable only because it was chosen by the parties to govern the employment agreement. See Steranko v. Inforex, Inc., 5 Mass. App. Ct. at 260. We conclude that the judge should have measured interest on Steranko's *535 damages from the date of "breach or demand" in accordance with G.L.c. 231, § 6C. Inforex has not seriously disputed Steranko's assertion that that date was January 5 rather than January 7, 1972.[6]
The cases are remanded to the Superior Court for recomputation of interest from January 5, 1972, in accordance with G.L.c. 231, § 6C. In all other respects the judgment entered in the Superior Court on January 23, 1978, is affirmed.
So ordered.
NOTES
[1] The parties also executed a shareholder's agreement, which was not significant in the ultimate determination of the validity of the restrictions. See Steranko v. Inforex, Inc., 5 Mass. App. Ct. at 267 n. 12.
[2] Two thousand of the 26,000 shares were purchased with restrictions contained in an "employee stock restriction agreement ... not part of the employment agreement."
[3] The parties had agreed that the employment agreement should be construed according to the law of New York. Steranko v. Inforex, Inc., 5 Mass. App. Ct. at 260.
[4] Steranko's sales of the 6,500 shares occurred during the last week of December, 1971, and the first week of January, 1972. The remaining evidence pertained to transactions which occurred in January, 1972. The judge excluded evidence pertaining to the actual sales of the 22,200 shares in 1977 (following our earlier opinion which ordered the shares transferred without the restrictions) as "too remote" from the pertinent period of January, 1972.
[5] Steranko's argument that the judge was required to accept his evidence of "reasonable time" on the ground that Inforex presented no evidence to meet its burden of rebutting Steranko's position is without merit. Inforex did offer contrary evidence; but the judge could reasonably have decided upon a time span not advanced by either party. See Piemonte v. New Boston Garden Corp., 377 Mass. 719, 731 (1979). In ruling that the transfer agent could have received an opinion letter releasing the restrictions from counsel for Inforex by Monday, January 10, 1972, and could then have issued "clean" certificates to Sternako on the following day, the judge appears to have rejected Steranko's evidence on this matter and to have adopted a position closer to that advanced by Inforex, which argued that the opinion of counsel for Inforex could and would have reached Inforex so that the transfer agent could have released "clean" certificates on Friday, January 7, 1972, the day Steranko demanded release of the certificates. Even assuming the correctness of Inforex's contention, Steranko still would not have been required to sell his 22,200 shares before January 12, 1972, the date of their "highest interim value" during the "reasonable time" found by the judge, in view of the judge's finding that five business days was a reasonable time for Steranko to make an orderly disposition of the stock. Steranko contends that, in arriving at a time span of five days, the judge mistakenly interpreted the testimony of Steranko's expert to mean that Steranko could have sold twenty percent of his stock each day for five days, while in fact the expert testified that Steranko could, per day, have sold twenty percent of the daily market volume of Inforex stock, a much smaller quantity which would have considerably lengthened the time for disposing of the stock. But Inforex's expert testified that, at most, only three trading days would have been needed for the sale of the 22,200 shares. Steranko's contention of error in the judge's failure to allow time for him to consult his lawyer and broker before disposing of the stock lacks merit for Steranko presumably had such consultations prior to selling the 6,500 shares in the recent past. In any event the judge's determination of "reasonable time" was well within the wide range exhibited by the cases. See Annot., 31 A.L.R.3d 1332-1334 (5[e]) (1970).
[6] Even if Steranko's action against Inforex were more properly characterized as one for conversion, it is not clear that G.L.c. 231, § 6B, would apply so as to require computation of interest on damages from the date of the commencement of the action. Whether or not the enactment of G.L.c. 231, § 6B, changed the substantive law pertaining to the calculation of interest on damages obtained in certain tort actions, see Sylvania Elec. Prod. v. Barker, 228 F.2d 842, 851 (1st Cir.1955), cert. denied, 350 U.S. 988 (1956), it does not appear that the statute had any substantive effect on the calculation of interest on damages obtained in an action for conversion. Our courts have traditionally awarded interest measured from the date of the conversion as a part of damages in an action for conversion. Hall v. Paine, 224 Mass. 62, 77 (1916). Lawyers Mortgage Inv. Corp. v. Paramount Laundries Inc., 287 Mass. 357, 361 (1934). Manhattan Clothing Co. v. Goldberg, 322 Mass. 472, 475 (1948). See Annot., 36 A.L.R.2d 337, 391-393 (§ 30 [a]) (1954). While there is no explicit authority for the nonapplicability of G.L.c. 231, § 6B, to actions for conversion, we have found no case which has applied this statute to the computation of interest on damages in such an action. Moreover, our courts, in actions for conversion since the statute's enactment, have thus far adhered to the common law rule requiring the measurement of interest from the date of conversion without mentioning the statute. See Manhattan Clothing Co. v. Goldberg, supra. Joy Stevens v. Plymouth Finishing Co., 355 Mass. 390, 393-394 (1969). C C & T Constr. Co. v. Coleman Bros. Corp., 3 Mass. App. Ct. 372, 377 (1975). One court has recognized the possibility that G.L.c. 231, § 6B, does not apply to an action for conversion. See Morgan Guar. Trust Co. v. Third Natl. Bank, 545 F.2d 758, 759 (1st Cir.1976).
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IN THE SUPREME COURT OF PENNSYLVANIA
MIDDLE DISTRICT
BOCHETTO & LENTZ, P.C. AND : No. 95 MM 2019
THOMAS J. KARL, :
:
Petitioners :
:
:
v. :
:
:
COURT OF COMMON PLEAS OF :
DELAWARE COUNTY, :
:
Respondent :
ORDER
PER CURIAM
AND NOW, this 6th day of September, 2019, the Petitioners’ Application for Leave
to File Original Process is GRANTED. The Petitioners’ Emergency King’s Bench Petition
for a Stay and Writ of Prohibition is DENIED.
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NOTE: This order is nonprecedential
United States Court of AppeaIs
for the FederaI Circuit
C. ROBERT SUESS, LEO SHERRY, RICI'IARD A.
GREEN, IRVING ROBERTS, ON BEHALF OF ALL
OTHER SHAREHOLDERS OF BENJAMIN
FRANKLIN FEDERAL SAVINGS AND LOAN ASSO-
CIATION, PETER BAKER, BENJAMIN FRANKLIN
FEDERAL SAVINGS AND LOAN ASSOCIATION,
AND DONALD MCINTYRE,
Plaintiffs-Appellants,
AND `
FEDERAL DEPOSIT INSURANCE CORPORATION,
Plaintiff-Appellee,
V.
UNITED STATES,
Defendcmt-Appellee.
2011-5101
Appea1 from the United States C0urt of Federa1
C1aims in 90-CV-981, Seni0r Judge L0ren A. Sn1ith.
ON MOTION
SUESS, v.Us 2
0RDER
C. R0bert SueSs, et al. move for a 7-day extension of
time, until February 10, 2012, to file their reply brief.
The court notes that the appellants’ reply brief was re-
jected by the court on February 13, 2012. The corrected
reply brief is due February 27, 2012.
Upon consideration thereof,
IT ls 0RDERE1) THAT: s
The motion is granted to the extent that the appel-
lants’ corrected reply brief is due February 27 , 2012.
FOR THE COURT
2 1 /sf Jan Horbaly
Date J an Horbaly
Clerk
cc: D0n S. Willner, Esq. FILED
John M. Dorsey, lIl, Esq.
Jeanne E. Davidson, Esq. s
321 FEB 211zu1z
.|AN HORBAl¥
CLERK
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Order filed, December 01, 2016.
In The
Fourteenth Court of Appeals
____________
NO. 14-16-00779-CR
____________
TYRONE DEON TAPLIN, Appellant
V.
THE STATE OF TEXAS, Appellee
On Appeal from the 337th District Court
Harris County, Texas
Trial Court Cause No. 1431780
ORDER
The reporter’s record in this case was due November 22, 2016. See Tex. R.
App. P. 35.1. The court has not received a request to extend time for filing the
record. The record has not been filed with the court. Because the reporter’s record
has not been filed timely, we issue the following order.
We order Mary Ann Rodriguez, the official court reporter, to file the
record in this appeal within 30 days of the date of this order.
PER CURIAM
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COURT OF APPEALS
EIGHTH DISTRICT OF TEXAS
EL PASO, TEXAS
EFRAIN JIMENEZ, §
No. 08-17-00124-CR
Appellant, §
Appeal from the
v. §
384th District Court
THE STATE OF TEXAS, §
of El Paso County, Texas
Appellee. §
(TC# 20150D04711)
§
OPINION
Efrain Jimenez1 was convicted by a jury of possessing a prohibited item in a correctional
facility. See TEX. PENAL CODE ANN. § 38.11(g). After Jimenez pleaded true to the enhancement
allegations in the indictment, a jury assessed punishment at twenty years’ confinement. On appeal,
Jimenez raises four issues that include procedural and sufficiency challenges pertaining to his
conviction and to the entry of a deadly-weapon finding against him. We affirm.
BACKGROUND
On December 3, 2014, Jimenez was housed as an inmate at the El Paso County Jail Annex
in El Paso being held in administrative segregation. While Jimenez remained in his cell, two
1
Jimenez was identified on the indictment as also being known as Efrain Venegas and Efrain Erin Venegas.
detention officers, Corporal Hernandez and Sergeant Santana, approached him to discuss an
administrative complaint that had been filed against him for an incident that allegedly occurred
weeks earlier, on November 16, 2014.2 In the complaint, Jimenez had been accused by detention
officer Corporal Brinks of cursing at her in violation of rules and regulations of the jail annex.
Although Jimenez denied the allegation, officers informed him of a ruling against him; he had
been found to have committed an administrative-rule violation due to his disrespectful conduct
towards a member of the jail staff. When told of the hearing results, Jimenez reacted by getting
upset and calling the decision “bullshit.” He cursed, and complained that Corporal Brinks was a
“bitch,” a “whore,” and a “fucking liar.” Hearing the commotion, Corporal Figueroa walked over
to speak with Jimenez. Sergeant Santana and Corporal Hernandez began walking away, but soon
they heard Jimenez getting louder and banging on his cell door. As the two officers returned,
Jimenez continued ranting and cursing at all three officers who were then present at his cell.
The detention officers tried to calm Jimenez, but he would not listen. Jimenez grew more
upset, paced around, kicked his cell door, and continued to curse and yell. Due to Jimenez’s
unrelenting behavior, Corporal Figueroa called for assistance. Detention Officer Ortega attempted
to diffuse the situation, but Jimenez continued pacing back and forth, kicking the door, and cussing
in his cell. The detention officers then spoke with each other about transferring Jimenez to a cell
designated for violent inmates which contains walls made from material that prevented a person
from hurting themselves. Officer Ortega testified that the violent cell is utilized when officers
2
The cell for each inmate had a sliding metal door made of thin, see-through mesh with little holes large enough for
a pencil to pass through. Each door had a large window made of thick glass and a small opening though which items
could be passed without having to open the door. In addition, about an inch of open space separated the bottom of the
door from the cell floor.
2
have concerns that an excited inmate may cause a riot with other inmates. After Corporal Figueroa
ordered that Jimenez be taken to the violent cell, Officer Ortega approached Jimenez and instructed
him to turn around to be handcuffed. Jimenez continued pacing in a circle and refused to comply.
As Officer Ortega entered the cell, Jimenez reached to his mattress and grabbed an item with a
wire attached. Fearing for his safety, Ortega quickly closed the door and advised the other officers
that Jimenez had a shank.
The shank, which was admitted into evidence at trial, was made of fence wire, similar to
that found in the visitation areas of the annex, with one end fashioned into a handle and the other
sharpened to a blade. Sergeant Santana explained that the term “shank” could refer to anything
that could physically harm someone. These shanks could be made by inmates taking an item and
scratching it against the cement floor of a cell until it sharpened. Sergeant Santana testified that
Jimenez’s shank met the legal definition of a deadly weapon due to its size and sharp end, and she
explained, “if that stabbed [me] in my neck, my eye, in my head, anywhere on my body[,] it can
cause serious damage, even death.” Likewise, Detention Officer Ortega testified that he also
considered the shank as a deadly weapon because it could have been used to kill someone.
With a clenched fist, Jimenez held the shank pointing outwards, paced around his cell,
tensed his body up, and kicked his cell door. While the detention officers attempted to calm him
and pleaded for him to relinquish the shank, Jimenez exclaimed that he was “going to fuck
somebody up,” and told the detention officers, “[o]pen the door. Just wait. Open the door.”
Jimenez also threatened to hurt Corporal Figueroa. The detention officers called for a Special
Reaction Team to respond, which is a unit of officers equipped to handle situations where an
inmate poses a threat, but after several minutes, Jimenez relented and slid the shank under his cell
3
door. The Special Reaction Team was then called off before they arrived.
Proceedings Prior to Trial
On September 29, 2015, Jimenez was re-indicted for possession of a prohibited item in a
correctional facility, with the indictment alleging that Jimenez used and exhibited a deadly
weapon—i.e., a sharpened wire—during the commission of an offense. The indictment alleged as
follows:
[T]hat on or about the 3rd day of December, 2014, and anterior to the presentment
of this indictment, in the County of El Paso and State of Texas, EFRAIN JIMENEZ
AKA EFRAIN VENEGAS AKA EFRAIN ERIN VENEGAS, hereinafter referred
to as Defendant, did then and there intentionally or knowingly possess a deadly
weapon, to wit: a sharpened wire, that in the manner of its use and intended use was
capable of causing death and serious bodily injury, while in a correctional facility,
to wit: The El Paso County Detention Facility,
And it is further presented that the said Defendant used and exhibited a deadly
weapon, to wit: a sharpened wire, during the commission of and immediate flight
from said offense . . . .
On February 10, 2016, the trial court entered an order for a mental health examination of
Jimenez to be completed by Dr. Cynthia Rivera. The order recited the trial court’s consideration
of a motion for an examination filed by Jimenez. On February 12, 2016, the trial court entered a
second order for a mental health examination which changed the date of the examination from the
first order, and on the same day, the State filed a notice of prospective witnesses for a competency
trial. Then on March 22, 2016, the trial court entered an order transferring Jimenez’s case from
the court’s competency docket back to its original docket. This order recited the following
findings:
Be it remembered that on this the date in the above entitled and numbered cause,
came to be heard the question of the present competency or incompetency of the
Defendant.
4
The jury having been waived, and the parties having appeared in Court, upon
announcement of ready by both parties, the parties presented evidence to the Court.
Upon both parties resting and the matter having been submitted to the Court, the
Court after due deliberation, made the following findings:
Defendant is competent to stand [trial] based on a report from Dr. Cynthia Rivera.
On the face of the order, the two signature lines for the district attorney and defense attorney were
left blank. The record reveals no objection made to the trial court’s determination of competency.
When trial began and before presentation of evidence in the State’s case-in-chief but after
jury selection, the State read the indictment in the presence of Jimenez, his attorney, and the jury,
and Jimenez entered a plea of not guilty. Thereafter, the State presented testimony from Sergeant
Santana, Officer Ortega, and Sergeant Ende, a shift sergeant at the jail annex, in its case-in-chief.
Jimenez also presented testimony from staff members of the jail annex. The jury charge included
an instruction describing a deadly weapon as “a firearm or anything manifestly designed, made, or
adapted for the purpose of inflicting death or serious bodily injury or anything in the manner of its
use or intended use that is capable of causing death or serious bodily injury.” In the application
paragraph, the court charged the jury that it should find Jimenez guilty “as charged in the
indictment” if it found beyond a reasonable doubt that, on the date alleged, Jimenez had
intentionally or knowingly possessed a deadly weapon, to wit: a sharpened wire, that in the manner
of its use and intended use was capable of causing death or serious bodily injury. No objection
was made to the jury charge.
After deliberations, the jury returned a general verdict finding Jimenez guilty “as charged
in the [i]ndictment.” The trial court later entered a deadly-weapon finding on the judgment which
designated the sharpened wire as the deadly weapon. This appeal followed.
DISCUSSION
5
Issue One: Whether Jimenez was Denied his Right to be Arraigned
In his first issue, Jimenez complains the record does not reflect he was arraigned, and he
asserts this purported absence of arraignment entitles him to a new trial. The State responds that
not only has Jimenez waived any complaint relating to arraignment but that, absent any affirmative
evidence to the contrary, we must presume he was arraigned and any failure to arraign would be
harmless based on the record of the proceedings. We hold Jimenez has waived any complaint that
he was not arraigned.
In all felony cases and misdemeanor cases punishable by imprisonment, there shall be an
arraignment. TEX. CODE CRIM. PROC. ANN. art. 26.01. The purpose of an arraignment is to fix the
defendant’s identity and to hear his plea. TEX. CODE CRIM. PROC. ANN. art. 26.02. The
arraignment is not part of the jury trial, and it may be waived. Richardson v. State, 508 S.W.2d
380, 381 (Tex. Crim. App. 1974); Eckels v. State, 220 S.W.2d 175, 177 (Tex. Crim. App. 1949).
Like many other rights afforded to a defendant, waiver of arraignment may be shown by a failure
to object in the trial court. Buck v. State, 503 S.W.2d 588, 589 (Tex. Crim. App. 1974); Eckels,
220 S.W.2d at 177. Moreover, when a defendant, represented by counsel, enters his plea to the
indictment, he likewise waives his right to an arraignment because this step negates the sole
purpose of an arraignment in determining his identity and plea. Richardson, 508 S.W.2d at 381-
82.
Here, Jimenez waived his complaint. The record shows he made no objection to the trial
court based on this purported lack of arraignment. For this reason alone, he has waived his
complaint. See Buck, 503 S.W.2d at 589 (“There is nothing in the record to indicate that the
appellant requested an arraignment or objected to the absence of an arraignment or otherwise raised
6
this matter in the trial court. Such error, if any, was waived.”); see also Eckels, 220 S.W.2d at 177
(same). Furthermore, the sole purpose of arraignment was accomplished when, without objection,
the State read the indictment in the presence of Jimenez and his attorney, and Jimenez entered a
plea of not guilty before the commencement of the State’s presentation of evidence in its case-in-
chief. For this reason, as well, Jimenez waived any complaint based on the alleged absence of an
arraignment. Richardson, 508 S.W.2d at 381-82. We therefore overrule Jimenez’s first issue
presented for review.3
Issue Two: Whether Jimenez was Denied his Right to a Competency Hearing
In his second issue, Jimenez argues that his right to due process was violated by the trial
court’s alleged failure to conduct a trial on the issue of his mental competency. The State argues,
first, that the trial court’s competency order shows that Jimenez was not denied a competency trial,
and second, that the order should be entitled to a presumption of regularity and truthfulness in the
absence of any proof to the contrary.
As a matter of constitutional due process, a criminal defendant who is incompetent may
not stand trial. Boyett v. State, 545 S.W.3d 556, 563 (Tex. Crim. App. 2018). The Legislature has
codified this due-process requirement by setting forth a substantive and procedural framework for
making competency determinations to ensure that legally incompetent criminal defendants do not
stand trial. See TEX. CODE CRIM. PROC. ANN. arts. 46B.003, 46B.004, 46B.005; Boyett, 545
S.W.3d at 563. Substantively, incompetency to stand trial is shown if the defendant does not have:
3
Even were we to conclude that Jimenez preserved his complaint for review, we would still find his argument without
merit. Rule 44.2 requires a court of appeals to presume that a defendant was arraigned unless the matter was disputed
in the trial court or the record affirmatively shows the contrary. TEX. R. APP. P. 44.2(c)(3). As Jimenez has done
neither, we cannot disrupt this presumption, and we would be forced to overrule his contention for this reason, as well.
7
(1) sufficient present ability to consult with his or her lawyer with a reasonable degree of rational
understanding; or (2) a rational as well as factual understanding of the proceedings against him or
her. See TEX. CODE CRIM. PROC. ANN. art. 46B.003(a); Boyett, 545 S.W.3d at 563. Procedurally,
a trial court employs two steps for making competency determinations before it may ultimately
conclude that a defendant is incompetent to stand trial. Boyett, 545 S.W.3d at 563. The first step
is an informal inquiry, and the second step is a formal competency trial. Id. An informal inquiry
is required upon a suggestion from any credible source that the defendant may be incompetent.
See TEX. CODE CRIM. PROC. ANN. art. 46B.004(a), (c), (c-1); Boyett, 545 S.W.3d at 563. At the
informal inquiry, if there is some evidence from any source that would support a finding that the
defendant may be incompetent to stand trial, the trial court must then order a psychiatric or
psychological competency examination and, except for certain exceptions, hold a formal
competency trial. See TEX. CODE CRIM. PROC. ANN. arts. 46B.004(c), 46B.005(a), (b),
46B.021(b); Boyett, 545 S.W.3d at 563. When a trial court errs in failing to properly conduct a
competency trial, the remedy is to abate the appeal and remand the cause to the trial court to
conduct a retrospective trial, if one is feasible. See Turner v. State, -- S.W.3d --, No. AP-76,580,
2018 WL 5932241, at *8 (Tex. Crim. App. Nov. 14, 2018).
Under the current statute, the trial court makes the ultimate determination with respect to
competency unless either of the parties or the trial court itself registers a preference that a jury
shall make the determination. See TEX. CODE CRIM. PROC. ANN. art. 46B.051; Turner v. State,
422 S.W.3d 676, 693 n.35 (Tex. Crim. App. 2013). And, as applicable here, when a trial court
enters an order disposing of a proceeding in the lower court, we employ an often-used judicial
construct by applying a presumption of regularity and truthfulness to recitations in such documents
8
and proceedings in the lower court. See Light v. State, 15 S.W.3d 104, 107 (Tex. Crim. App.
2000); Breazeale v. State, 683 S.W.2d 446, 450 (Tex. Crim. App. 1984); see also Keller v. State,
125 S.W.3d 600, 605 (Tex. App.—Houston [1st Dist.] 2003), pet. dism’d, improvidently granted,
146 S.W.3d 677 (Tex. Crim. App. 2004) (“A presumption of truthfulness and regularity applies to
documents filed in the trial court.”). The presumption is not irrebuttable, but it is incumbent on
the party challenging the particular document or proceeding to present affirmative evidence to the
contrary. See Light, 15 S.W.3d at 107; Breazeale, 683 S.W.2d at 450.
In the present case, the only evidence in the record bearing on the issue of whether Jimenez
had a competency hearing consists of the trial court’s order transferring his case from the court’s
competency docket back to its original docket. This order recites that the issue of Jimenez’s
competency was decided by the trial court after a jury was waived, both parties announced ready
for a hearing, and the parties presented evidence to the court. The order further states the court
found Jimenez to be competent, based on the report from Dr. Cynthia Rivera, after both parties
rested and submitted the matter to the court. Nothing in the record affirmatively contradicts these
recitations, and no objection was made to the order. Applying the presumption of truthfulness and
regularity to the trial court’s order, we must find that Jimenez had a bench trial on the issue of his
competency. See Light, 15 S.W.3d at 107; Breazeale, 683 S.W.2d at 450; Keller, 125 S.W.3d at
605.
In his brief to this Court, Jimenez points out that the competency order was not signed by
either defense counsel or the State. However, this Court has previously held that the lack of
defense counsel’s signature in a blank space on a document, alone, does not overcome the
presumption of regularity that we employ with respect to the documents of a trial court. See
9
Aragon v. State, No. 08-05-00350-CR, 2008 WL 467446, at *3 (Tex. App.—El Paso Feb. 21,
2008, no pet.) (not designated for publication) (holding that the lack of any signature on the spaces
for both defense counsel’s identification and for the waiver of counsel did not overcome the
presumption of regularity when the judgment stated that the defendant was represented by
counsel). Because the trial court’s competency order indicates that the court held a bench trial on
the issue of competency, we conclude that the presumption of truthfulness and regularity applies.
Accordingly, we overrule Jimenez’s second issue presented for review.
Issues Three and Four: Whether the Deadly-Weapon Finding was Proper
In Jimenez’s third and fourth issues, he challenges the trial court’s entry of a deadly-
weapon finding. In his third issue, he argues that he merely possessed the sharpened wire and that
this possession, alone, did not constitute use or exhibition as required for a deadly-weapon finding.
In his fourth issue, he argues that the evidence was insufficient to show that the sharpened wire
was, in fact, a deadly weapon. The State counters that Jimenez waived his third issue by his failure
to object on that basis but, in any case, the evidence showed both that Jimenez actively employed
the sharpened wire, thereby demonstrating its use, and that the sharpened wire constituted a deadly
weapon through its adaption or manner of its use. We will address these two issues together.
Did Jimenez Waive His Complaint Regarding Use
or Exhibition of a Deadly Weapon?
At the outset, while acknowledging that complaints regarding the imposition of deadly-
weapon findings have traditionally been regarded as legal-sufficiency claims, the State relies
primarily on Keller v. State for its contention that Jimenez waived any sufficiency complaint about
whether he used or exhibited the sharpened wire by his failure to lodge any objection on that basis
in the trial court. See Keller, 125 S.W.3d at 600. In Keller, the defendant pleaded guilty and, on
10
appeal, challenged the trial court’s denial of various issues raised in his motion for new trial. Id.
at 603. In one particular issue, the defendant argued that his plea agreement was illegal because it
was legally impossible for him to have been convicted of using or exhibiting a deadly weapon
during the course of his solicitation offense. Id. The court of appeals held that he waived this
complaint because he never asked to withdraw his plea of guilt nor raised any objection alerting
the trial court to that complaint. Id. at 603-04.
We first note our agreement with the State that contentions regarding whether a defendant
used or exhibited a deadly weapon appear to be viewed through the same lens as claims of legal
sufficiency. See Searcy v. State, 115 S.W.3d 628, 630 (Tex. App.—Waco 2003, no pet.)
(“Admittedly, a defendant’s use or exhibition of a deadly weapon does not always constitute ‘a
substantive element’ of the offense. . . . Nevertheless, this Court and others frequently review the
legal sufficiency of the evidence to support such a finding.”); cf. Ex parte McLain, 869 S.W.2d
349, 350 (Tex. Crim. App. 1994) (holding that a writ applicant’s challenge to a jury’s
determination that he used or exhibited a deadly weapon during the commission of the offense was
a claim directed at the legal sufficiency of the evidence). We believe, however, that the procedural
posture in which the Keller defendant appealed the denial of his motion for a new trial after he
pleaded guilty to his offense makes Keller inapplicable here. We reach this conclusion in light of
the fact that, as noted in Keller in the resolution of a separate issue, a plea of guilty waives all non-
jurisdictional defenses, including challenges to the sufficiency of the evidence. See Keller, 125
S.W.3d at 605 (citing Ex parte Williams, 703 S.W.2d 674, 682 (Tex. Crim. App. 1986)).
While we are not necessarily unpersuaded that waiver principles could apply to a complaint
of this nature, we will assume, without deciding, that Jimenez did not waive his deadly-weapon
11
complaint because our resolution of the merits on this issue requires us to overrule it for the reasons
stated below.
Standard of Review
In evaluating claims directed at the propriety of a deadly-weapon finding, we review the
record for legal sufficiency and consider the combined and cumulative force of all admitted
evidence and reasonable inferences therefrom in the light most favorable to the verdict to
determine whether a jury was rationally justified in making the deadly-weapon finding. Iglesias
v. State, 564 S.W.3d 461, 465 (Tex. App.—El Paso 2018, no pet.) (citing Jackson v. Virginia, 443
U.S. 307, 318-19, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979)).
Did Jimenez “Use or Exhibit” a Deadly Weapon?
If the fact finder affirmatively finds that a deadly weapon was used or exhibited in a felony
offense, the trial court must enter an affirmative finding in the judgment. TEX. CODE CRIM. PROC.
ANN. art. 42.12, § 3g(a)(2) (now codified at TEX. CODE CRIM. PROC. ANN. art. 42A.054(b)-(d)).
“Use” means the deadly weapon was employed or utilized to achieve its purpose. Patterson v.
State, 769 S.W.2d 938, 941 (Tex. Crim. App. 1989). “Exhibited” means the weapon was
consciously shown or displayed during the commission of the offense. Id.
The essential requirement for a deadly-weapon finding is that there be some facilitation or
furtherance between the weapon and the commission of the felony or the immediate flight
therefrom. See Plummer v. State, 410 S.W.3d 855, 865 (Tex. Crim. App. 2013). Any employment
of a deadly weapon, even simple possession, can supply the basis for a deadly-weapon finding if
the possession facilitates the felony. Patterson, 769 S.W.2d at 941; see also Plummer, 410 S.W.3d
at 859 (explaining that Texas courts have upheld deadly-weapon findings where a defendant, even
12
without overtly using or brandishing a gun, possessed both guns and drugs because the weapon
reasonably could have protected and facilitated the defendant’s care, custody, and management of
the contraband). There is no requirement that the use or exhibition of the weapon must be
associated with a second, separate felony even if it also supplies the basis for an element of a
charged offense. See Tyra v. State, 897 S.W.2d 796, 798 (Tex. Crim. App. 1995). But mere
possession alone, without any showing that the deadly weapon facilitated the felony, cannot serve
as the basis of a deadly-weapon finding. Plummer, 410 S.W.3d at 864; see also Narron v. State,
835 S.W.2d 642, 644 (Tex. Crim. App. 1992); Ex parte Petty, 833 S.W.2d 145, 145-46 (Tex. Crim.
App. 1992), abrogated on other grounds by Ex parte Nelson, 137 S.W.3d 666 (Tex. Crim. App.
2004) (cases holding that mere unlawful possession of a weapon could not supply the basis of a
deadly-weapon finding where a defendant was charged with committing unlawful possession of a
firearm and did not in any way use the firearms to facilitate the unlawful-possession offense). This
is because the purpose of the deadly weapon provision is to discourage and deter felons from taking
and using deadly weapons with them as they commit their crimes, and this deterrence rationale
works only if the actor makes a conscious decision to use or exhibit the weapon to assist in
committing the felony. Plummer, 410 S.W.3d at 864.
Here, Jimenez cites a string of cases, including Ex parte Petty, Narron, Patterson, and
Plummer, for the proposition that the deadly-weapon finding was improper because, even
assuming that he used or exhibited a deadly weapon, the use of that weapon could not form both
the basis of his charged offense and the basis of the deadly-weapon finding. However, the Court
in Tyra expressly stated to the contrary and explained there was no statutory language to support
an argument that “used or exhibited a deadly weapon during commission of a felony offense”
13
means “used or exhibited a deadly weapon during commission of an offense which does not
otherwise require the use or exhibition of a deadly weapon.” Tyra, 897 S.W.2d at 798. And the
fact that a felony offense might always involve use of a deadly weapon would not change the
meaning of the phrase “used a deadly weapon” because, “[t]here is simply nothing in the phrase
‘used a deadly weapon’ to imply that it must always be used to commit an ‘associated offense.’”
Id. Furthermore, the crux of the analysis in the line of cases stretching from Patterson to Plummer
is simply whether the use or exhibition of a deadly weapon facilitated the commission of any
felony offense. See Plummer, 410 S.W.3d at 865; Patterson, 769 S.W.2d at 941. Based on
guidance from those cases, we overrule this first portion of Jimenez’s argument.
Jimenez also asserts that his acts with the sharpened wire did not facilitate the commission
of his charged offense for possessing a prohibited item in a correctional facility. We disagree
because the record at trial showed Jimenez employed the sharpened wire, i.e. shank, in such a
manner as to increase the risk of harm to the surrounding detention officers and prevented them
from dispossessing him of the weapon. When Detention Officer Ortega attempted to enter
Jimenez’s cell, Jimenez walked over to his bed, retrieved the shank, and turned to face Ortega with
it in hand. Even before Detention Officer Ortega opened Jimenez’s cell door and Jimenez grabbed
his shank, Jimenez was in possession of the shank by keeping it stored in his cell and under his
bed. See TEX. PENAL CODE ANN. § 1.07(a)(39) (defining possession as actual care, custody,
control, or management). Based on the design of the shank, as will be described in more detail
below, Sergeant Santana and Detention Officer Ortega were concerned Jimenez could kill
someone with it. Ortega immediately closed the cell door, and while in his cell, Jimenez held the
shank outwards in a clenched fist while pacing back and forth, tensing up, and kicking his cell
14
door. Even though Jimenez was separated from the detention officers by his cell door and
eventually relinquished the shank, he continued to employ the shank for several minutes all while
he threatened to “fuck somebody up.” Jimenez’s actions with the weapon prevented the officers
from immediately bringing him out of his cell and dispossessing him of the shank.
On review of the record, we conclude that this case is not one involving mere possession
of a deadly weapon. Through Jimenez’s employment of his shank—hidden under his mattress until
he retrieved it for use against the detention officers—he presented a very real threat of injury to
the officers and prevented them from dispossessing him of the shank for the several minutes during
which he held it at the ready and threatened harm, and thus, we conclude he used it to facilitate his
commission of the offense of possessing a prohibited item in a correctional facility. See Plummer,
410 S.W.3d at 865; see also Garner v. State, 864 S.W.2d 92, 103 (Tex. App.—Houston [1st Dist.]
1993, pet. ref’d) (holding that the defendant, charged with possession of a firearm by an ex-felon,
used the handgun when he fired the handgun in the direction of an officer); Jurado v. State, No.
07-97-0102-CR, 1998 WL 537383, at *3 (Tex. App.—Amarillo Aug. 25, 1998, pet. ref’d) (not
designated for publication) (“While in possession of the prohibited weapon, the evidence
establishes that appellant shot the prohibited weapon and killed Carbajal. Hence, appellant
employed, wielded and shot the deadly weapon while unlawfully possessing the illegal firearm.
We are persuaded that the evidence established more than just ‘mere possession’ of a prohibited
weapon.”). Accordingly, we overrule the second portion of Jimenez’s third issue presented for
review.
Was the Sharpened Wire a Deadly Weapon?
The Texas Penal Code defines a deadly weapon as: (A) a firearm or anything manifestly
15
designed, made, or adapted for the purpose of inflicting death or serious bodily injury; or (B)
anything that in the manner of its use or intended use is capable of causing death or serious bodily
injury. TEX. PENAL CODE ANN. § 1.07(a)(17)(A), (B). Only one of these alternative definitions
must be met in order to prove that an item qualifies as a deadly weapon. Iglesias, 564 S.W.3d at
466 (citing Thomas v. State, 821 S.W.2d 616, 620 (Tex. Crim. App. 1991)).
After the parties in this case filed their briefs and the case was submitted to this Court, we
issued our opinion in Iglesias where we decided the same deadly-weapon sufficiency complaint
adversely to the appellant in a case with similar facts. Iglesias, 564 S.W.3d at 465-66. In Iglesias,
the defendant was charged with possessing a deadly weapon in a penal institution, and the weapon
was shown to be “shank” consisting of two separate items that could be assembled together: a
scrub brush modified into a handle and a plastic eyeglass earpiece sharpened at the edges. Id. at
464. We held the evidence legally sufficient to show the shank was designed, made, or adapted
for the purpose of inflicting death or serious bodily injury because the brush and earpiece were
crafted into a shank with a sharp point that could be used as a stabbing weapon to cause harm to
officers and other inmates. Id. at 466.
Likewise, the deadly weapon at issue in this case was described as a shank and made of
fence wire with one end modified into a handle and the other end sharpened. It was admitted into
evidence at trial for the jury to see, and both Sergeant Santana and Detention Officer Ortega said
it was capable of seriously injuring or even killing someone. And in light of our opinion in Iglesias,
we hold that the sharpened wire here was a deadly weapon. See Iglesias, 564 S.W.3d at 466; see
also Shugart v. State, 32 S.W.3d 355, 360 (Tex. App.—Waco 2000, pet. ref’d) (holding that
evidence of a shank–an icepick-type weapon consisting of a metal rod sharpened at one end and
16
wrapped with a cloth at the other end–was legally sufficient to satisfy a deadly-weapon finding);
Smith v. State, 51 S.W.3d 806, 809 (Tex. App.—Texarkana 2001, no pet.) (holding in an
aggravated assault case that evidence of a shank in the form of a sharpened piece of metal found
lodged in an inmate’s toilet permitted the jury to conclude that the object was a deadly weapon);
Crittendon v. State, 923 S.W.2d 632, 635 (Tex. App.—Houston [1st Dist.] 1995, no pet.) (holding
that evidence of a prisoner-made shank–a metal rod with sharpened tip and paper handle–was
sufficient to permit a rational trier of fact to conclude that the defendant committed the offense of
possession of a deadly weapon in a penal institution). Thus, we conclude that the trial court
committed no error in its entry of the deadly-weapon finding, and we overrule Jimenez’s fourth
issue.4
CONCLUSION
Having overruled all issues presented for review, we affirm the trial court’s judgment and
its entry of the deadly-weapon finding.
May 8, 2019 GINA M. PALAFOX, Justice
Before McClure, C.J., Rodriguez, and Palafox, JJ.
(Do Not Publish)
4
In Jimenez’s fourth issue presented for review, he mentions, “a deadly weapon special issue was not submitted to
the jury as a special issue and [sic] neither in the guilt-innocence jury charge nor the punishment charge.” While he
does not argue this would dictate an outcome different than what we would decide based upon our resolution of the
two sub-issues addressed above, it is well settled that one way in which a trier of fact can make an affirmative finding
of a deadly weapon to permit entry of such a finding on a judgment is where an indictment specifically alleges that a
“deadly weapon” was used and the defendant was found guilty “as charged in the indictment.” Duran v. State, 492
S.W.3d 741, 746 (Tex. Crim. App. 2016) (citing Polk v. State, 693 S.W.2d 391, 393-96 (Tex. Crim. App. 1985)).
Here, the indictment alleged that Jimenez used a “deadly weapon,” and the jury’s general verdict expressly found him
guilty “as charged in the indictment.” Therefore, the jury made an express deadly-weapon finding. See Duran, 492
S.W.3d at 746; Polk, 693 S.W.2d at 393-96. And we would therefore overrule any contention from Jimenez on this
basis.
17
| {
"pile_set_name": "FreeLaw"
} |
808 F.Supp. 439 (1992)
Christopher OLEJAR
v.
POWERMATIC DIVISION OF DeVLIEG-BULLARD, INC., et al.
No. 92-0150.
United States District Court, E.D. Pennsylvania.
November 18, 1992.
John Shniper, Phoenixville, PA, for plaintiff.
Thomas P. Wagner and Catherine H. Agnew, Rawle & Henderson, Philadelphia, PA, for defendants.
MEMORANDUM AND ORDER
HUTTON, District Judge.
Presently before the Court are defendants Powermatic Division of DeVlieg-Bullard, Inc. (correctly styled) ("Powermatic"), Houdaille Industries, Inc. ("Houdaille"), John Crane, Inc. ("John Crane") and T.I. United States Limited's ("T.I.") Motion for Reconsideration of this Court's Order dated September 19, 1992, or for Immediate Certification for Appeal under 28 U.S.C. *440 § 1292(b), and plaintiff Christopher Olejar's response thereto. For the following reasons, defendants' Motion for Reconsideration or for Immediate Certification for Appeal is DENIED.
I. FACTS AND PROCEDURAL HISTORY
On September 16, 1992, this Court denied in part and granted in part defendants' Motion for Summary Judgment.[1] The defendants now ask this Court to reconsider its decision on the strict liability claim. Specifically, this Court must decide whether, under Pennsylvania law, the "product line exception" for corporate liability applies when the plaintiff cannot demonstrate that the actual transfer of assets between the transferor and acquiring corporation destroyed the cause of action against the original manufacturer. Upon reconsideration of the case law, this Court reaffirms its earlier decision that the "causal element" is not a prerequisite to sustaining a cause of action against a previous product manufacturer under Pennsylvania's "product line exception."[2]
II. DISCUSSION
This Court begins its discussion with an acknowledgment that this is a question of state law that has bedeviled federal district courts before, and will continue to do so until the Pennsylvania Supreme Court makes a pronouncement on the "causal element." See Tracey by Tracey v. Winchester Repeating Arms Co., 745 F.Supp. 1099 (E.D.Pa.1990), aff'd without opinion, 928 F.2d 397 (3d Cir.1991); Olejar v. Powermatic, et al., Slip Op. No. 92-CV-0150, 1992 WL 236960 (E.D.Pa. Sept. 16, 1992).
As this Court stated in its earlier opinion discussing summary judgment:
when this Court sits in diversity, it must apply the substantive law of the forum in which it is located. Erie R.R. Co. v. Tompkins, 304 U.S. 64, 78 [58 S.Ct. 817, 822, 82 L.Ed. 1188] (1938). The federal courts are to follow the decision of the Supreme Court of the state where the state's high court has spoken. In addition, "an intermediate appellate state court ... is a datum for ascertaining state law which is not to be disregarded by a federal court unless it is convinced by other persuasive data that the highest court of the state would decide otherwise." Commissioner v. Estate of Bosch, 387 U.S. 429 [456] 465 [87 S.Ct. 1776, 1782, 18 L.Ed.2d 886] (1967).
Slip Op. at 5-6. "Determining what is Pennsylvania's law" becomes the defining question in this Motion to Reconsider, a question that is particularly complicated because there is no Supreme Court holding on point. The absence of the Pennsylvania Supreme Court's view on this subject is further complicated by two additional issues. First, each of the federal courts that have addressed the "corporate successor liability doctrine" since 1985 have predicated their opinions on the assumption that the Pennsylvania Supreme Court would, if asked, adopt the product line exception. See e.g., Conway v. White Trucks, A Div. of White Motor. Co., 885 F.2d 90, 95 (3d Cir.1989) ("For purposes of our decision we will assume arguendo that Pennsylvania would follow the Dawejko decision.") (referring to Dawejko v. Jorgensen Steel Co., 290 Pa.Super. 15, 434 A.2d 106-07 (1981)) (adopting product line exception).[3]
*441 These assumptions have placed the federal courts in the uncomfortable position of predicting state law without any definitive direction from the state Supreme Court. See Estate of Bosch, 387 U.S. at 465, 87 S.Ct. at 1782. This discomfort is further compounded by the fact that only three states, Pennsylvania, New Jersey and California have embraced the product line exception for successor corporations. Hill v. Trailmobile, Inc., 412 Pa.Super. 320, 603 A.2d 602 (1992). See Third Circuit Chief Judge Dolores Sloviter, Diversity Jurisdiction Through the Lens of Federalism, The American Judicature Society, Westlaw Lawprac Index, n. 39-40 (August/September 1992) ("Erie guesses" most difficult area of diversity jurisdiction after weighing federalism concerns); Craig A. Hoover, Note, Deference to Federal Circuit Court Interpretations of Unsettled State Law: 1982 Duke L.J. 704.
The second issue that complicates this Court's decision is that when the Third Circuit sat as the Supreme Court of the Virgin Islands, it expressly rejected the product line exception. Polius v. Clark Equipment Co., 802 F.2d 75 (3d Cir.1986). In short, there is a conflict between the Third Circuit's disapproval of the product line exception and the substantive choice of law Pennsylvania has made in its own state court system. Compare, Polius, 802 F.2d at 82 ("sounder choice is to reject product line doctrine where court had right to choose") with Hill v. Trailmobile, Inc., 412 Pa.Super. 320, 603 A.2d 602, 606 (1992) (product line doctrine the law of Pennsylvania).
Accordingly, this Court must, without either Pennsylvania Supreme Court or Third Circuit precedent on point, decide whether the "causal requirement" is a prerequisite to sustaining a cause of action against a corporate successor under Pennsylvania law.
1. Standard for a Motion to Reconsider
Federal Rule of Civil Procedure 60(b) provides in relevant part:
Relief From Judgment or Order
(b) Mistakes; Inadvertence; Excusable Neglect; Newly Discovered Evidence; Fraud, etc.
On motion and upon such terms as are just, the court may relieve a party or a party's legal representative from a final judgment, order, or proceeding for the following reasons: (1) mistake, inadvertence, surprise, or excusable neglect,
...
The motion shall be made within a reasonable time, and for reasons (1), (2), and (3) not more than one year after the judgment, order or proceeding was entered or taken.
Fed.R.Civ.P. 60(b).[4] This rule allows the Court to reconsider its earlier Order denying Summary Judgment. Hopper v. Euclid Manor Nursing Home, Inc., 867 F.2d 291 (6th Cir.1989) (claim of legal error in final judgment is "mistake" within meaning of portion of rule allowing litigant to obtain relief under [rule 60(b)]).
2. The Court's Original Order Denying Summary Judgment
This Court's September 16, 1992 Order held the following: (1) that the product line exception for successor liability is the law of Pennsylvania (Opinion at 6-7, 9, citing Dawejko v. Jorgensen Steel Co., 290 Pa.Super. 15, 434 A.2d 106 (1981)); (2) that the product line exception required that there exist no remaining cause of action against the original manufacturer (Opinion at 9, citing LaFountain v. Webb Indus., Corp., 951 F.2d 544, 547 (3d Cir.1991)); (3) that there was no cause of action remaining against either Harry Heckman or his estate (Opinion at 10); and (4) that Pennsylvania's policy of "risk spreading" counseled in favor of not requiring that the transfer of corporate assets between manufacturers have been the "causal" reason why no cause of action still existed against the original manufacturer (Opinion at 10, citing Hill v. Trailmobile, Inc., 412 Pa.Super. 320, 603 A.2d 602, 606 (1992)).
*442 It is this Court's fourth conclusion, not requiring the "causal element," that is at the heart of the defendants' Motion to Reconsider. In reaching the decision to reject the "causal element" this Court stated:
Further, in light of the Pennsylvania Superior Court's expressed preference for spreading the risk of products liability to successor corporations, this Court rejects the defendant's arguments that plaintiff must prove that the subsequent acquisition is the direct reason for having no remedy against the manufacturer. Compare Hill, 603 A.2d at 606 (the exception not to be read too tightly) with Defendants Memorandum at 5 (succession itself must have destroyed cause of action against manufacturer).
(Opinion at 10).
This Court reached its decision because of the language in Hill v. Trailmobile, Inc., 412 Pa.Super. 320, 603 A.2d 602, 606 (1992).
In Hill, the Pennsylvania Superior Court stated, with reasoning that this Court adopted in full:
The court also stated that the exception to the general rule of no liability may exist only when the following three circumstances have each been established:
(1) the virtual destruction of the plaintiff's remedies against the original manufacturer caused by the successor's acquisition of the business, (2) the successor's ability to assume the original manufacture's risk-spreading rule, and (3) the fairness of requiring the successor to assume a responsibility for defective products that was a burden necessarily attached to the original manufacturer's good will being employed by the successor in the continued operation of the business.
Dawejko, 434 A.2d at 109 quoting Ray v. Alad Corp., [19 Cal.3d 22, 136 Cal.Rptr. 574] 560 P.2d 3 (Cal.1977). The court continued to explain that "[w]e also believe it better not to phrase the new exception too tightly. Given its philosophical origin, it should be phrased in general terms, so that in any particular case the court may consider whether it is just to impose liability on the successor corporation." Id. (emphasis added).
Hill, 603 A.2d at 606. This Court interpreted the language "better not to phrase the new exception too tightly.... so that in any particular case the court may consider whether it is just to impose liability on the successor corporation" as a mandate to read liberality into the Dawejko test. After reviewing the available case law and the history of the product line exception in Pennsylvania, this Court concludes that the original order was correct for purposes of Fed.R.Civ.P. 60(b), and that the Dawejko test does not require that the plaintiff first satisfy the three threshold requirements set forth in Ray v. Alad Corp., and listed immediately above the language this Court relied upon in its earlier decision.
3. Ascertaining Pennsylvania's Law
One other federal district court has faced the identical question presently before this Court. In Tracey by Tracey v. Winchester Repeating Arms Co., 745 F.Supp. 1099, 1108 (E.D.Pa.1990), aff'd without opinion, 928 F.2d 397 (3d Cir.1991), the district court predicted that Pennsylvania would require a causal element for extinguishing product liability. After going through a practically identical analysis as this Court did in its September 16, 1992 Order, the Tracey court adopted the causal element requirement by concluding:
A more fundamental rational for adopting a causation requirement stems from the policies which underlie Section § 402A of the Restatement (Second) of Torts. Comment c to § 402A states that the justification for strict liability "has been said to be that a seller ... has undertaken and assumed a special responsibility" toward the user, that the public has the right to "rely upon the seller, that reputable sellers will stand behind their goods."
. . . . .
In Polius, supra, the Court noted that through Comment c the Restatement "reaffirms the notion of a causal connection." *443 745 F.Supp. at 1108. Without deciding whether other language in Comment c actually calls for the opposite result, this Court finds that recent developments in the case law, and this Court's role as a predictor of Pennsylvania state law, counsel in favor of finding that the Pennsylvania Supreme Court would reject the causal requirement.[5]
4. Development of the Dawejko Test
In order to fully predict how the Supreme Court would rule on the product line exception, this Court first looks to the doctrine's genesis in Dawejko v. Jorgensen Steel Co., 290 Pa.Super. 15, 434 A.2d 106 (1981). When the Superior Court adopted the product line exception, the Court traced the product line exception back to the California Supreme Court case of Ray v. Alad Corp., 19 Cal.3d 22, 136 Cal.Rptr. 574, 560 P.2d 3 (1977). It is from the Ray case that the three part test, cited by the defendants in this case, first emerged. The California Supreme Court stated:
"(1) the virtual destruction of the plaintiff's remedies against the original manufacturer caused by the successor's acquisition of the business, (2) the successor's ability to assume the original manufacture's risk-spreading rule, and (3) the fairness of requiring the successor to assume a responsibility for defective products that was a burden necessarily attached to the original manufacturer's good will being employed by the successor in the continued operation of the business."
Ray, 136 Cal.Rptr. at 580, 560 P.2d at 8-9. This test was repeated in full in Dawejko. 434 A.2d at 109.
In Dawejko, the Pennsylvania Superior Court did not, however, hold that Pennsylvania was adopting the Ray test. In fact, the Superior Court went on to review the holding of the New Jersey Supreme Court in Ramirez v. Amsted Indus. Inc., 86 N.J. 332, 431 A.2d 811 (1982). In Ramirez, the New Jersey Supreme Court upon reviewing Ray, held:
Where one corporation acquires all or substantially all the manufacturing assets of another corporation, even if exclusively for cash, and undertakes essentially the same manufacturing operation as the selling corporation, the purchasing corporation is strictly liable for injuries caused by defects in units of the same product line, even if previously manufactured and distributed by the selling corporation or its predecessor.
Ramirez, 431 A.2d at 825 (also reprinted in Dawejko, 434 A.2d at 110). Significantly, the New Jersey Supreme Court did not adopt the requirement set forth in Ray that "each of the following elements" must be satisfied before the plaintiff may sustain a cause of action. The New Jersey formulation was more liberal than the California Supreme Court's tripartite test in Ray v. Alad Corp., 19 Cal.3d 22, 136 Cal.Rptr. 574, 560 P.2d 3 (1977).
The difference between the Ray test and the Ramirez test is significant because of the following language, cited by the Pennsylvania Superior Court in Dawejko when it adopted the product line exception:
Also, it will always be useful to consider whether the tree-part test stated in Ray v. Alad Corp., supra, has been met. The exception will more likely realize its reason for being, however, if such details are not made part of its formulation. The formulation of the court in Ramirez v. Amsted Industries, Inc., supra, is well-put, and we adopt it.
Dawejko, 434 A.2d at 111. This language makes clear that the Pennsylvania Superior Court rejected the formalistic approach chosen by the California Supreme Court. In so doing, the Pennsylvania court did not adopt California's requirement that the transfer of assets be the "causal element," or reason, that the first corporation is no longer in existence.
*444 5. Predicting Pennsylvania Law Based upon New Jersey's Interpretation of the Causal Element
As the Court indicated earlier, there are only three jurisdictions that have adopted the product line exception for successor corporate liability. Further, when Pennsylvania adopted the exception it gave careful attention to, and in effect adopted, the New Jersey rule. See Hill v. Trailmobile, Inc., 412 Pa.Super. 320, 603 A.2d 602, 606 (1992) (reviewing Pennsylvania's adoption of the product line exception). As New Jersey foreshadowed Pennsylvania's adoption of the exception, this Court must examine any developments in New Jersey's treatment of the product line exception as a forecasting indicator of where the Pennsylvania Courts will go when they address the "causal element" requirement.
Since New Jersey adopted the product line exception in 1981, it has expressly rejected the "causal requirement." Pacius v. Thermtroll Corp., 259 N.J.Super. 51, 611 A.2d 153 (1992). In Pacius, the Court stated:
Therefore, dissolution of the predecessor manufacturer should be irrelevant in determining successor corporation liability. The goal of products liability, namely, to burden the successor corporation which benefits from the product line and is better equipped to spread the costs of injury throughout society, is best served by holding the current manufacturer responsible regardless of the viability of its predecessor.
This court concludes that the first criterion of Ray is met where the predecessor company is no longer viable. It is the fact of nonviability that supports the imposition of liability. Any discussion with regard to the reasons for the demise of the predecessor is irrelevant. The first criterion of Ray cannot, therefore, be considered an essential element for the imposition of liability.
Id. 611 A.2d at 156. In reaching its decision, the Pacius court discussed the implication of the causal element on plaintiffs. The court stated "both cases [Ramirez and its companion case Nieves v. Bruno Sherman Corp., 86 N.J. 361, 431 A.2d 826 (1981)] make it clear that successor corporations are liable, where the company which manufactured the product is no longer viable, and therefore cannot afford a remedy to a plaintiff. The Court holds were public policy determinations to afford a remedy to an injured person who would otherwise be remediless." Id. 611 A.2d at 157.
Finally, as support for its conclusion, the Pacius court cited Lori J. Braender, note, Corporate Successor Liability, 12 Seton Hall L.Rev. 327, 344-345 (1982), for the proposition that the causal element would encourage corporate shells as a method of avoiding products liability. As Braender pointed out:
Narrow construction of this policy justification as a condition precedent would encourage corporations to limit their liability be requiring sellers to retain their corporate existence after the acquisition. Thus, plaintiffs would be forced to look to the seller, who has minimal assets which might be insufficient to satisfy products liability claims.
12 Seton Hall L.Rev. at 344-45. The commentary's concern for limiting plaintiffs' liability seems in accord with the Pennsylvania Superior Court's decision in Dawejko v. Jorgensen Steel Co., 290 Pa.Super. 15, 434 A.2d 106 (1981).
This Court finds the reasoning of Pacius persuasive and firmly rooted in the tradition of risk spreading that originally gave rise to the product line exception. Accordingly, the Pacius decision serves as an accurate prediction of where the product line exception is going in New Jersey, which has again, reached a question of corporate successor liability before Pennsylvania. Because of the Court's role as a predictor of Pennsylvania law, this Court holds that Pennsylvania will most likely continue to follow New Jersey's precedent and reject the causal element requirement.[6]
*445 6. Motion to Certify the Issue for Immediate Appeal Pursuant to 28 U.S.C. § 1292(b)
In the alternative, the defendants ask this Court to certify the "causal element" for immediate appeal to the United States Court of Appeals for the Third Circuit. A district court may certify a question for immediate appeal to the Court of Appeals pursuant to 28 U.S.C. § 1292(b) which provides:
When a district judge, in making in a civil action an order not otherwise appealable under this section, shall be of the opinion that such order involves a controlling question of law as to which there is substantial ground for difference of opinion and that an immediate appeal from the order may materially advance the ultimate termination of the litigation, he shall so state in writing in such order. The Court of Appeals which would have jurisdiction of an appeal of such action may thereupon, in its discretion, permit an appeal to be taken from such order, if application is made to it within ten days after the entry of the order. Provided, however, that application for an appeal hereunder shall not stay proceedings in the district court unless the district judge or the Court of Appeals or a judge thereof shall so order.
Id. The test for certification under 28 U.S.C. § 1292(b) is:
(1) whether the motion to be appealed involves a controlling question of law; (2) whether there is a substantial ground for the difference of opinion with respect to resolution of the issue to be appealed; and (3) whether an immediate appeal from the district court's decision could materially advance the ultimate termination of the litigation.
Max Daetwyler Corp. v. Meyer, 575 F.Supp. 280 (E.D.Pa.1983). This question of Pennsylvania products liability law does not meet that standard. The previous discussion makes clear that the "causal element" is a question upon which there is "substantial ground for the difference of opinion." See § 1292(b). However, an immediate appeal will not "materially advance the ultimate determination of the litigation." Id.
On appeal, the Third Circuit will have to undertake the same process of predicting Pennsylvania's choice of law as this Court has already done. Unlike a decision by the Pennsylvania Supreme Court, a decision by the Third Circuit will still be a prediction of Pennsylvania law. By not taking an expedited appeal, the Pennsylvania courts are given more time to possibility reach, and decide, the "causal element" requirement on their own. Finally, the defendants will still be able to exercise their rights after an entry of final judgment should they deem it appropriate. For these reasons, the defendants' Motion for Reconsideration, or in the alternative, for Certification of Immediate Appeal under 28 U.S.C. § 1292(b), is DENIED.
NOTES
[1] The Court GRANTED defendants' Motion for Summary Judgment on the Duty to Warn Claim and DENIED defendants' Motion for Summary Judgment on Strict Liability. The facts and previous procedural developments were set forth in full in the Court's earlier decision and are not repeated here.
[2] For purposes of this opinion the "causal requirement," as referred to in the defendants' brief, is the term that describes when a transfer of corporate assets is the "causal" reason why there is no surviving cause of action against the original manufacturer. In other words, the transfer itself, as compared to a subsequent bankruptcy or winding down of business, must extinguish the plaintiff's right to relief against the original manufacturer. See Conway v. White Trucks, Div. of White Motor Corp., 885 F.2d 90 (3d Cir.1989) (bankruptcy).
[3] In Tracey the district court expressly acknowledged that the "causal question" was left unresolved by the Third Circuit in Conway. 745 F.Supp. at 1107 n. 14.
[4] Local Rule of Civil Procedure 20(g) requires that a party file a motion for reconsideration within ten (10) days. The Court finds that the defendants have complied with the local rule.
[5] The last sentence of Comment c provides, "and that the consumer of such products is entitled to the maximum of protection at the hands of someone, and the proper persons to afford it are those who market the products." Restatement of Torts (Second) § 402A, Comment c.
[6] To the extent that this holding conflicts with the decision in Tracey by Tracey v. Winchester Repeating Arms Co., 745 F.Supp. 1099, 1108 (E.D.Pa.1990), aff'd without opinion, 928 F.2d 397 (3d Cir.1991), this Court holds that the 1992 New Jersey opinion, directly on point, is a more accurate predictor of Pennsylvania's substantive law than the commentaries to the Restatement of Torts (Second) § 402A, available to the court in 1990.
Finally, this Court points out that plaintiff originally filed this suit in the Court of Common Pleas for Philadelphia County and that it was the defendants who removed this case to federal court. Had this case stayed in state court, the Pennsylvania Supreme Court might have had the opportunity to reach the "causal element" question. Because Olejar is now unable to appeal the trial court's decision to the Pennsylvania Supreme Court, and ever mindful of Erie's proscription on forum shopping, it would be inequitable to deny plaintiff his day in court because the case has been removed from the state court system that will ultimately have to resolve the "causal element" question.
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IN THE COURT OF APPEALS OF TENNESSEE
AT NASHVILLE
______________________________________________
MICHAEL C. GLEAVES,
Plaintiff-Appellee,
Davidson Circuit No. 95C-1706
Vs. C.A. No. 01A01-9710-CV-00577
CHECKER CAB TRANSIT
CORPORATION, INC., FILED
Defendant-Appellant. September 14, 1998
____________________________________________________________________________
Cecil W. Crowson
FROM THE DAVIDSON COUNTY CIRCUIT Appellate Court Clerk
COURT
THE HONORABLE HAMILTON V. GAYDEN, JR., JUDGE
William D. Leader, Jr., Melissa S. Herring,
Boult, Cummings, Conners & Berry, PLC of Nashville
For Appellee, Michael C. Gleaves
Steven D. Parman, Matthew A. Boyd,
Watkins, McGugin, McNeilly & Rowan, P.L.L.C., of Nashville
For Appellant
REVERSED IN PART AND AFFIRMED IN PART
Opinion filed:
W. FRANK CRAWFORD,
PRESIDING JUDGE, W.S.
CONCUR:
ALAN E. HIGHERS, JUDGE
DAVID R. FARMER, JUDGE
This case arises from an automobile accident involving a taxicab in which the taxicab
company was held liable for the negligence of the taxi driver. Defendant/Appellant Checker Cab
Transit Corporation appeals the judgment of the trial court on the jury verdict awarding plaintiff
$300,000.00 in compensatory damages.
Defendant/Appellant Checker Cab Transit Corporation (Checker Cab) is a provider of
dispatching services to a group of independent taxicab owner-operators in the greater Nashville,
Tennessee area. Checker Cab has nine employees who serve as dispatchers for approximately
sixty taxis. Each taxi operator owns his or her own vehicle and pays a flat weekly fee to Checker
Cab in exchange for dispatching services. In addition, Checker Cab provides each operator with
Checker insignia, lights, radios, and fare meters. The arrangement between Checker Cab and
the owner-operators is unusual in that Checker Cab claims to have no control over the hiring and
firing of drivers.1 The independent owner-operators meet periodically to elect members to a
governing board composed of three members. The board, which is responsible for promulgating
rules for the operation of Checker cabs, has the sole authority to admit new owner-members and
must approve of all drivers who wish to work for, or in effect sublease, a taxicab from an owner-
operator. In addition, the board acts on complaints against drivers and disciplines those who
violate the rules. All Checker taxicabs operate under a single “Certificate of Public
Convenience and Necessity” which Checker Cab obtained through the city of Nashville’s
Taxicab & Wrecker Licensing Board pursuant to the Code of the Metropolitan Government of
Nashville and Davidson County (Nashville Metro Code) 6.72.020. The Nashville ordinances
governing the operation of taxicabs include:
Nashville Metro Code 6.72.210: Liability Insurance Agreement.
A. All taxicab companies shall be required to file a liability
insurance agreement with the taxicab and wrecker licensing board
for each taxicab operated under their franchise. A copy of such
agreement is on file, attached to Ordinance 81-530, codified in
this section.
B. These agreements shall place the vehicles operated under their
franchise in the taxicab company’s complete possession and
control, and the taxicab company shall assume complete liability
for each and every vehicle for which it enters into this agreement.
The Liability Insurance Agreement executed by Checker Cab requires that all vehicles
operated under Checker Cab’s Certificate of Public Convenience and Necessity be covered by
1
Checker Cab analogizes the association of owner-operators to the Teamsters Union,
suggesting that it is subject to the whims of the owners and that its only recourse for dealing
with an errant driver is to request that the board take action. Furthermore, each owner-
operator is free to hire relief drivers on his own, subject only to approval by the board of
owners.
2
a policy of liability insurance that meets the minimum limits established by the State of
Tennessee. The agreement also provides:
3. That the above-named taxicab company, partnership or sole
proprietorship shall assume complete liability for each vehicle
being operated under its name, color, emblem, design and
insignia and shall be liable for any personal injuries or property
damage to third parties as the result of the negligent use of this
(these) vehicle(s).
Defendant Robert Mosley (Mosley) is an independent owner-operator affiliated with
Checker Cab. Mosley is a manic-depressive with a history of erratic and violent behavior who
must take lithium to control his emotions and behavior. Mosley was operating his taxi all day
on April 7, 1995 until contacting the dispatcher and notifying her that he was going off-duty at
9:20 p.m. There is some dispute as to whether Mosley continued to pick up passengers after this
time, but it is undisputed that Mosley was on his way home when the accident occurred. On his
way home, Mosley, who was off his medication, passed a City of Lakewood police car at a high
rate of speed. Officer Darin Kelley initiated pursuit and chased Mosley a distance of between
four and five miles at speeds upwards of 90 mph. The chase ended abruptly when Mosley ran
a red light and collided with Plaintiff/Appellee Michael Gleaves’s (Gleaves) car at the
intersection of Old Hickory Blvd. and Delaware Ave. Gleaves suffered severe injuries to his
right leg and is permanently disabled as a result.
Plaintiff filed suit against Mosley, Checker Cab, the City of Lakewood, and Officer Darin
Kelley seeking $600,000.00 in compensatory damages. Plaintiff alleged, inter alia, that Checker
Cab was liable to plaintiff on a theory of respondeat superior, that plaintiff was negligent in its
hiring, supervision, and licensing of defendant, and that Checker Cab was liable for plaintiff’s
injuries pursuant to the Taxicab Liability Insurance Agreement and the provisions of the
Nashville Metro Code cited above. In its answer, Checker Cab denied that Mosley was an
employee or agent of Checker Cab and asserted that because Mosley’s vehicle was not being
operated as a taxicab at the time of the collision, there was no liability under the Nashville
ordinances.
The trial court granted summary judgment to Checker Cab “on the issues of respondeat
superior, agency, negligent hiring, negligent supervision, and § 317 of the Restatement (Second)
of Torts (1964).” In addition, the trial court, sua sponte, granted “summary judgment to
[plaintiff] against Checker Cab for damages resulting from Mosley’s negligence pursuant to
3
Metropolitan Government Code §§ 6.72.010 through 6.72.440.” The case proceeded to trial by
jury. At the close of all proof, the court directed a verdict in favor of Officer Kelley and
dismissed him as a party. The jury returned a verdict in favor of plaintiff and awarded
compensatory damages in the amount of $300,000.00. The jury apportioned seventy (70%)
percent fault to Mosley and thirty (30%) percent fault to the City of Lakewood. Pursuant to the
trial court’s prior grant of summary judgment, the trial court ordered that Checker Cab was
jointly responsible for Mosley’s $210,000.00 share of the judgment.
Checker Cab appeals the judgment of the trial court, asserting that it was error to grant
summary judgment to plaintiff against Checker Cab and hold it liable for the negligence of
Mosley pursuant to the Nashville ordinances governing the operation of taxicabs. Checker Cab
asserts that the intent of the ordinances was not to impose liability upon the holder of a
Certificate of Public Convenience and Necessity for every act of drivers operating thereunder,
but merely to “(1) ensure that minimum levels of liability insurance are in place while a taxicab
is operating on the streets of Nashville, and (2) provide incentive to the holders of a Certificate
of Public Convenience and Necessity to assist in the procurement of such insurance by imposing
liability on them while a taxicab is being operated under their franchise.” Gleaves requests that
in the event this Court reverses the trial court on this issue, that we reconsider the propriety of
the trial court’s dismissal of his other causes of action.
A motion for summary judgment should be granted when the movant demonstrates that
there are no genuine issues of material fact and that the moving party is entitled to a judgment
as a matter of law. Tenn. R. Civ. P. 56.04. The party moving for summary judgment bears the
burden of demonstrating that no genuine issue of material fact exists. Bain v. Wells, 936 S.W.2d
618, 622 (Tenn. 1997). On a motion for summary judgment, the court must take the strongest
legitimate view of the evidence in favor of the nonmoving party, allow all reasonable inferences
in favor of that party, and discard all countervailing evidence. Id. In Byrd v. Hall, 847 S.W.2d
208 (Tenn. 1993), our Supreme Court stated:
Once it is shown by the moving party that there is no genuine
issue of material fact, the nonmoving party must then
demonstrate, by affidavits or discovery materials, that there is a
genuine, material fact dispute to warrant a trial. In this regard,
Rule 56.05 provides that the nonmoving party cannot simply rely
upon his pleadings but must set forth specific facts showing that
there is a genuine issue of material fact for trial.
4
Id. at 211 (citations omitted) (emphasis in original).
Summary judgment is only appropriate when the facts and the legal conclusions drawn
from the facts reasonably permit only one conclusion. Carvell v. Bottoms, 900 S.W.2d 23, 26
(Tenn. 1995). Since only questions of law are involved, there is no presumption of correctness
regarding a trial court's grant of summary judgment. Bain, 936 S.W.2d at 622. Therefore, our
review of the trial court’s grant of summary judgment is de novo on the record before this Court.
Warren v. Estate of Kirk, 954 S.W.2d 722, 723 (Tenn. 1997).
The extent of the liability created by the Nashville ordinances is purely a question of
statutory interpretation. This Court must construe a municipal ordinance using the same rules
of construction applied to statutes. Tennessee Manuf. Hous. Ass’n v. Metropolitan Gov’t of
Nashville, 798 S.W.2d 254 (Tenn. App. 1990). When interpreting a statute or ordinance, the role
of the Court is to “ascertain and give effect to the legislative intent.” Sharp v. Richardson, 937
S.W.2d 846, 850 (Tenn. 1996). To this end, the meaning of a statute is not to be determined
from special words in a single sentence or section, but from the statute taken as a whole. State
ex rel. Bastnagel v. City of Memphis, 224 Tenn. 514, 457 S.W.2d 532 (1970). In the absence
of ambiguity, legislative intent is derived from the face of a statute, and the Court may not depart
from the “natural and ordinary” meaning of the statute’s language. Davis v. Reagan, 951
S.W.2d 766, 768 (Tenn. 1997); Westland West Community Ass’n v. Knox County, 948 S.W.2d
281, 283 (Tenn. 1997). However, it is also presumed that in enacting the statute the legislature
did not intend an absurdity. Epstein v. State, 211 Tenn. 633, 366 S.W.2d 914 (1963). To avoid
an absurd result, the obvious intention of the law must prevail over the literal sense of the words.
Byrd v. Pioneer-Jellico Coal Co., 180 Tenn. 396, 175 S.W.2d 542 (1944).
Gleaves asserts that the ordinances are unambiguous and impose complete liability upon
the holder of the Certificate of Public Convenience and Necessity, in this case Checker Cab,
whether or not the negligent acts complained of occurred on or off duty. In response, Checker
Cab asserts that the ordinances create liability only when the taxicab is “operated under [the Cab
company’s] franchise” and that the independently owned vehicles are only so operated when the
drivers are actually on duty and either carrying or soliciting passengers. A cursory review of the
selected provisions could lead to either conclusion. However, since we do not have the benefit
5
of legislative history to assist in determining the intent of the drafters, this Court must look to
the ordinance as a whole to determine the extent of liability intended. If we were to hold as the
plaintiff urges, and as did the trial court, the ordinance would place liability upon Checker Cab
in derogation of the common law2, therefore, the ordinance must be strictly construed. Perry
v. Sentry Ins. Co., 938 S.W.2d 404 (Tenn. 1996).
Upon review of the entire chapter of the Nashville Metro Code3 governing the operation
of taxicabs, we find several provisions that are inconsistent with the plaintiff’s construction. The
ordinance defines a taxicab as “a motor vehicle regularly engaged in the business of carrying
passengers for hire, donation, gratuity or any other form of remuneration, having a seating
capacity of less than ten persons and not operated on a fixed route.” Nashville Metro Code
6.72.010. We read this to mean that a vehicle “regularly engaged in the business of carrying
passengers for hire” is a “taxicab” twenty-four hours per day, whether or not passengers are
being carried or solicited. This interpretation is bolstered by section 6.72.110 which provides
that “[n]o person shall operate a taxicab for hire upon the streets and roads of the metropolitan
government . . . unless the driver of such taxicab shall first obtain . . . a taxicab driver’s permit.”
(emphasis added). The inclusion of the phrase “for hire” implies that a taxicab may be operated
around town on personal business, or by one who is not a licensed taxicab driver, such as the
spouse of the owner for example, provided that paying passengers are not carried or sought.
Indeed, no party to this lawsuit has questioned either the right of an owner to use his or her
vehicle for personal business, or the right to allow another to use the vehicle for personal
business. However, if we interpret the ordinances literally, as plaintiff would have us do, then
any personal use of the vehicle would be prohibited by section 6.72.430, which provides that
“[n]o taxicab driver shall . . . use his vehicle for any purpose other than the transporting of fare-
paying passengers.” Furthermore, Checker Cab has contracts with approximately 150 Nashville
area businesses for the delivery of packages. Did the drafters intend for this to be a prohibited
2
Plaintiff’s construction of the ordinances would essentially place strict liability on
the holder of a Certificate of Public Necessity and Convenience. Without benefit of the
ordinance, in order to hold Checker Cab vicariously liable for the negligence of a taxi driver,
plaintiff would have to show that the driver was acting in the course and scope of
employment when the alleged negligent act occurred. See discussion of respondeat superior
infra.
3
Attached as an addendum to this opinion are parts of the ordinance pertinent to the
issues under consideration.
6
activity? We think not. The question we face is whether the drafters intended to extend liability
twenty-four hours per day, no matter who is operating the vehicle, or for what purpose.
Also enlightening is section 6.72.370 of the Code which provides: “The driver of any
taxicab shall remain in the driver’s compartment or immediately adjacent to his vehicle at all
times when such vehicle is on the public streets; except that, when necessary, a driver may be
absent from his taxicab for not more than ten consecutive minutes.” The language “at all times”
is certainly very broad, and arguably encompasses every moment a taxicab is upon the public
streets. However, by no stretch of the imagination can we believe that the drafters meant this
literally. Certainly, the drafters did not intend to require that an off-duty driver remain adjacent
to the vehicle when it is parked on the street in front of his or her home for the night. The only
logical construction of this provision is that it only applies when the taxicab is being operated
for hire.
There is another anomaly that we find persuasive. By signing the liability insurance
agreement, Checker Cab “assumed complete liability for each vehicle being operated under its
name, color, emblem, design and insignia and shall be liable for any personal injuries or property
damage to third parties as the result of the negligent use of this (these) vehicle(s).” Gleaves
asserts that this provision unambiguously places complete liability upon Checker Cab without
regard to whether paying passengers are being carried or sought. Checker Cab asserts that the
vehicles are “operated under” the name, color, emblem and insignia of Checker Cab only when
they are carrying passengers for hire, or are available to do so. If we were to adopt Gleaves’s
interpretation of this language, Checker Cab would arguably be liable if a taxicab were stolen
and a traffic accident ensued while the thief was making his get away. We do not believe that
the drafters intended to create such sweeping liability.
These examples lend credence to Checker Cab’s assertion that despite the broad
sweeping language used, the ordinances governing taxicabs were intended to apply only when
the vehicles are operated for hire. We think this is the only rational conclusion. Cf. Farrell v.
Greater Houston Transp. Co., 908 S.W.2d 1 (Tex. App. 1995) (holding that a Houston
municipal ordinance making a Cab company “responsible for anyone operating under [its]
permit” was not intended to make the taxicab company strictly liable for the torts of its drivers).
7
From our review of the ordinance as a whole, we conclude that Checker Cab’s liability
under the ordinance is limited for those circumstances when a taxicab is operating under the
franchise and carrying passengers or otherwise available for hire. Accordingly, the order of the
trial court granting summary judgment in favor of plaintiff against Checker Cab on the issue of
the liability created by the Nashville ordinances is reversed. However, this does not end our
inquiry concerning Checker Cab’s liability. We must now determine whether there is any
genuine issue of material fact on the question of whether, at the time of Mosley’s accident, the
taxicab was operated under the franchise. This is essentially the appellee’s issue presented for
review of whether the trial court erred in granting Checker Cab summary on the theory of
respondeat superior.
An employer is held vicariously liable for torts committed by its employees that are
committed within the course and scope of their employment. Tennessee Farmers Mut. Ins. Co.
v. American Mut. Liab. Ins. Co., 840 S.W.2d 933, 937 (Tenn. App. 1992). Thus, for an
employer to be liable, the plaintiff bears the burden of proving three elements:
(1) that the person who caused the injury was an employee, (2)
that the employee was on the employer’s business, and (3) that
the employee was acting within the scope of his employment
when the injury occurred.
Id. Although this inquiry is generally a question of fact, it becomes a question of law “when the
facts are undisputed and cannot support conflicting conclusions.” Id.; Smoot v. Marks, 564
S.W.2d 231, 236 (Mo. App. 1978). Notwithstanding its finding that the issue of whether Mosley
was an employee of Checker Cab is a “disputed jury question,” the trial court ruled that
resolution of the issue is irrelevant since the accident occurred outside the scope of Mosley’s
employment relationship with Checker Cab.
While it is not essential for Mosley to be an employee of Checker Cab in order to hold
Checker Cab liable under the ordinance, it is essential that the taxicab be operated under the
franchise, that is carrying passengers or available for hire. Such a determination would be
analogous to a finding that driver Mosley was acting in the course and scope of his authority
when the accident occurred.
The Restatement (Second) of Agency has been utilized by courts in this state as a
8
framework for determining whether an employee has acted within the course and scope of his
or her employment. Tennessee Farmers, 840 S.W.2d at 937-38. Section 228 states as follows:
(1) Conduct of a servant is within the scope of employment if, but
only if:
(a) it is of the kind he is employed to perform;
(b) it occurs substantially within the authorized time and space
limits;
(c) it is actuated, at least in part, by a purpose to serve the master;
and
(d) if force is intentionally used by the servant against another,
the use of force is not unexpectable by the master.
(2) Conduct of a servant is not within the scope of employment
if it is different in kind from that authorized, far beyond the
authorized time and space limits, or too little actuated by a
purpose to serve the master.
Restatement (Second) of Agency § 228 (1957). Section 229 states:
(1) To be within the scope of employment, conduct must be of the
same general nature as that authorized, or incidental to the
conduct authorized.
(2) In determining whether or not the conduct, although not
authorized, is nevertheless so similar to or incidental to the
conduct authorized as to be within the scope of employment, the
following matters of fact are to be considered:
(a) whether or not the act is one commonly done by such
servants;
(b) the time, place and purpose of the act;
(c) the previous relations between the master and the servant;
(d) the extent to which the business of the master is apportioned
between different servants;
(e) whether or not the act is outside the enterprise of the master
or, if within the enterprise, has not been entrusted to any servant;
(f) whether or not the master has reason to expect that such an act
will be done;
(g) the similarity in quality of the act done to the act authorized;
(h) whether or not the instrumentality by which the harm is done
has been furnished by the master to the servant;
(i) the extent of departure from the normal method of
accomplishing an authorized result; and
(j) whether or not the act is seriously criminal.
Restatement (Second) of Agency § 229 (1957); see also Tennessee Farmers, 840 S.W.2d at 938.
Gleaves asserts that there is some dispute concerning whether Mosley was working at
the time of the accident. The record indicates that at 9:20 P.M. on the date of the accident,
Mosley reported to the Checker Cab dispatcher that he was going off duty and stated that he was
going home. Joe Rakes, another Checker Cab driver, testified that he was with Mosley at the
Nashville International Airport shortly after Mosley had checked out with the dispatcher.
9
Gleaves contends that the following portion of Rakes’s testimony indicates that Mosley may
have been working even after he checked out with the dispatcher:
Q. It was after he checked out that you told him to go home?
A. Yeah. Like I say, he was tying up the radio, running his
mouth.
Q. You told Mr. Mosley to go home after he had checked out
from the dispatcher?
A. Yes.
Q. It was after he had checked out with the dispatcher and he was
off duty when you told him?
A. Yeah. He was still out there running around and talking --
tying up that radio. And Carol -- I don’t know what her last name
is now -- but either she told me or I talked to her back and forth
about him and he shouldn’t be out there working and running his
mouth on that radio, as far as him getting on the radio and tying
up the radio.
Q. And he was off duty at the time?
A. Yes.
Rakes, however, also testified as follows:
Q. Did you see him leave the airport?
A. Yes, sir.
Q. And where was he heading?
A. Going home.
Q. Did he say he was going home?
A. Yeah, because I told him if he didn’t, the cab inspector or
somebody would get him. Somebody would say something about
him and all that because he was -- wasn’t working. If a cab
inspector sees you, they’re liable to take your permit away from
you again.
Q. Had he already clocked out that night?
A. Yeah. I think he had. Yeah. He wasn’t out there working.
He was just talking to drivers.
Gleaves, nevertheless, notes evidence in the record indicating that Mosley may not have gone
directly home from the airport and may have driven passengers to downtown Nashville.
Notwithstanding this testimony, there is no question that Mosley did not have passengers
in his cab at the time of the accident. There is also no evidence to dispute Mosley’s testimony
10
that at the time of the accident, he was on his way home:
All I remember is that I was going home. That’s all I remember.
You know, I told them I was going home, and I headed towards
home.
Thus, even if there is a genuine issue of material fact concerning whether Mosley was working
after he checked out with the dispatcher, the record supports the trial court’s finding there is no
genuine dispute that at the time of the accident he was not working and was traveling home.
Ordinarily, an employer is not vicariously liable for an employee’s negligence while the
employee is traveling to and from work. Sharp v. Northwestern Nat. Ins. Co., 654 S.W.2d 391,
392 (Tenn. 1983). However, under certain circumstances an employer may be held vicariously
liable under the “traveling men” exception. Smith v. Royal Globe Ins. Co., 551 S.W.2d 679,
681 (Tenn. 1977). This exception was discussed in Craig v. Gentry, 792 S.W.2d 77 (Tenn. App.
1990):
The test in brief is this: If the work of the employee creates the
necessity for travel, he is in the course of his employment, though
he is serving at the same time some purpose of his own.
Id. at 79 (quoting Pratt v. Duck, 28 Tenn. App. 502, 512, 191 S.W.2d 562, 566 (1945)); see also
Tennessee Farmers, 840 S.W.2d at 938; Annotation, Employer’s Liability for Employee’s
Negligence in Operating Employer’s Car in Going to or from Work or Meals, 52 A.L.R. 2d 350
(1957). Applying this exception, courts have found employees to be acting within the scope of
their employment during travel in instances in which travel was an essential element of the
employment relationship. See, e.g., Martin v. Free Service Tire Co., 189 Tenn. 327, 225
S.W.2d 249 (1949) (exception applied to account collector who was returning home after
attempting to collect accounts in another city); Carter v. Hodges, 175 Tenn. 96, 132 S.W.2d 211
(1939) (exception applied to traveling salesman while staying at a hotel); Employers’ Liab.
Assurance Corp. v. Warren, 172 Tenn. 403, 112 S.W.2d 837 (1938) (exception applied to
insurance adjuster while staying at a hotel). In Sharp v. Northwestern National Insurance Co.,
654 S.W.2d 391 (Tenn. 1983), the Court categorized these cases applying the “traveling men”
exception:
These cases have in common the element of an undefinable
boundary for the beginning and ending of the claimant’s work
environment. The very nature of the employments rendered that
environment amorphous. And yet, it is certain the claimants were
placed in circumstances which were directly related to their
11
employment. And, therefore, injuries arising out of those
circumstances were compensable.
Id. at 392.
No Tennessee cases have addressed whether the “traveling men” exception should be
extended to include taxicab drivers going to and from work. Citing Smoot v. Marks, supra,
Gleaves argues that the issue should be a question of fact for the jury and, thus, the trial court
erred in granting summary judgment to Checker Cab. See Smoot, 564 S.W.2d at 236-38; see
also Buffalo Cab Co. v. Gurley, 213 S.E.2d 545, 546 (Ga. App. 1975).
Although there may be occasions when this exception should apply to taxi drivers
traveling to and from work, we agree with the trial court’s finding that Mosley was acting
beyond the scope of his employment. A reasonable jury simply could not find that a driver of
a passenger-less taxicab who attempts to outrun a police car while on his way home was acting
within the scope of his employment. Not only was Mosley’s conduct in derogation of the law,
it is inconceivable that Mosley’s conduct was “actuated, at least in part, by a purpose to serve
the master.” Restatement (Second) of Agency § 228 (1)(c). There is no contention, for instance,
that Mosley was attempting to elude the police so that he could speedily transport a passenger
to a particular destination or pick up a passenger. Gleaves has failed to offer any suggestion
whatsoever that Mosley’s conduct was intended to enure to the benefit of Checker Cab. In
addition, Mosley’s conduct does not qualify as “similar to or incidental to the conduct
authorized” by Checker Cab. Id. § 229. Because we find that Mosley’s conduct was “clearly
beyond the scope of his authority,” the trial court properly granted summary judgment to
Checker Cab on the issue of respondeat superior. Tennessee Farmers, 840 S.W.2d at 937.
Since Mosley’s conduct was beyond the scope of his authority, he was not operating the taxicab
under the franchise, and Checker Cab is not responsible for his conduct. Thus, it follows that
summary judgment should have been granted to Checker Cab under the ordinance.
In addition to the trial court’s dismissal of the common law respondeat superior claim,
Gleaves presents issues of whether the trial court erred in dismissing his actions for negligent
hiring, negligent supervision, and Restatement (Second) of Torts, § 317 (1964). We first note
that although Gleaves contends that the trial court erred in granting summary judgment on all
of these theories, Gleaves is precluded from obtaining a new trial since he failed to appeal his
12
judgment against the co-defendant, City of Lakewood. Samuelson v. McMurtry, 962 S.W.2d
473 (Tenn. 1998).
In Samuelson, the plaintiff sued several defendants, including Dr. Mark Totty, for
medical malpractice. The trial court severed the action against Dr. Totty after granting him a
motion for summary judgment and a motion to dismiss. The plaintiff proceeded to trial and the
jury found liability and apportioned fault among the remaining defendants. The plaintiff
accepted payment of this judgment against the defendants and did not appeal any action of the
trial court regarding these defendants. The plaintiff, however, appealed the trial court’s decision
to sever and dismiss his suit against Dr. Totty.
The Supreme Court held that although the trial court erred in dismissing and severing the
plaintiff’s claim against Dr. Totty, the plaintiff was not entitled to a new trial since he failed to
appeal the judgment rendered against the other defendants. Id. at 476. The Court stated:
Despite the plaintiff’s insistence that relief can be granted on
the record before the Court, the Court finds that the plaintiff’s
failure to appeal the judgments against the defendants other than
Dr. Totty was fatal to his right to a new trial. Perhaps the plaintiff
could not have anticipated the precise decision that would be
rendered by the Court on the issues presented, but the plaintiff
chose to accept payment in satisfaction of the judgment against
the defendant Holland, thereby precluding an appeal that would
have allowed the Court to do justice for all the parties.
The Court has been referred to no authority that would allow
it to set aside a final judgment against a defendant who is not a
party to the appeal and who has paid the judgment and received
from the plaintiff an acknowledgment of full satisfaction.
Id.
In the instant case, the jury attributed seventy (70%) percent of the fault to Mosley and
thirty (30%) percent to the City of Lakewood. If a new trial were granted, the City of Lakewood,
which is not a party to this appeal, may be prejudiced: it would be forced to expend resources
defending itself again in a new trial and it would encounter the possibility that a jury would
assess more damages to it.4 Accordingly, under the principle set forth in Samuelson, we hold
that Gleaves is barred from appealing the trial court’s granting of summary judgment to Checker
4
Even if a rule of law existed whereby the City of Lakewood would not be held
liable for more than the judgment against it in the original trial, an equitable result would not
ensue. First of all, it would be forced to represent itself in the second trial. Alternatively, if it
chose not to represent itself, the remaining defendants may attribute an inequitable amount of
fault to the defenseless and disinterested defendant, thus prejudicing the plaintiff.
13
Cab on the issues of negligent hiring, negligent supervision, and Restatement (Second) of Torts
§ 317.
The Samuelson rule should not apply to the respondeat superior claim because whether
Checker Cab is vicariously liable for the negligence of Mosley has no bearing on the allocation
of fault assessed by the jury between Mosley and the City of Lakewood. Thus, the unappealed
jury verdict assessing seventy (70%) percent of the fault to Mosley would not be disrupted. If
a new trial were granted, the sole determination would be whether Checker Cab would be
responsible for damages corresponding with that percentage of fault that was attributed to
Mosley. The policy reasons supporting the principle articulated in Samuelson would not be
applicable, since the City of Lakewood could not be prejudiced by such a trial limited to this
determination. However, as we previously noted, summary judgment was appropriately awarded
to Checker Cab on the merits.
Moreover, on the merits of Gleaves’s negligent hiring, negligent supervision, and
Restatement (Second) of Torts § 317 claims, we find that summary judgment was appropriate
for these claims. Proximate causation is an “essential element” for establishing a claim for
negligence. Doe v. Linder Constr. Co., 845 S.W.2d 173, 181 (Tenn. 1992). In Corder v.
Metropolitan Government of Nashville, 852 S.W.2d 910, 915 (Tenn. App. 1992), the Court held
that an employer may not be held liable for negligent hiring in the event that the employee’s
tortious conduct was committed outside the scope of his or her employment. The Court stated:
The reason for this is that the hiring of the employee is not the
proximate cause of his acts committed outside the scope of his
employment. If this were not true, every employer who hires a
careless employee would be liable for every careless act of the
employee even though not committed in connection with his
work.
Id. (citing Nishan v. Godsey, 166 F. Supp. 6 (E.D. Tenn. 1958)); see also Phipps v. Walker, No.
03A01-9508-CV-00294, 1996 WL 155258, at *4 (Tenn. App. Apr. 4, 1996). Because Mosley’s
conduct was outside the scope of his employment due to the aforementioned reasons, Gleaves
is unable to satisfy the element of proximate causation and, thus, summary judgment was
appropriate for his negligent supervision and hiring claims. See Linder Constr., 845 S.W.2d at
173 (“Ordinarily, the proximate cause of an injury is for the jury, but where the facts are not
controverted, the question of proximate or intervening cause is for the trial court.”)
14
In addition, even if Gleaves were permitted to appeal the trial court’s dismissal of his
Restatement (Second) of Torts § 317 claim, we would affirm this ruling as well. Section 317
states that a master has a duty “to exercise reasonable care so to control his servant while acting
outside the scope of his employment” under certain circumstances. (emphasis added).
Tennessee has never expressly adopted this provision as creating a cause of action. In Nichols
v. Atnip, 844 S.W.2d 655 (Tenn. App. 1992), the Court stated:
The common law rule that persons have no duty to protect others
from harm they did not cause, while harsh, remains the law. It is
perhaps inevitable that extreme cases involving morally
outrageous and indefensible conduct will cause inroads into this
rule.
Id. at 662. We would not find that the instant case warrants an exception to the common law
rule.
In sum, the judgment of the trial court against Checker Cab is reversed, and plaintiff’s
action against Checker Cab is dismissed. The judgment in all other respects is affirmed, and the
case is remanded for such proceedings as may be necessary. Costs of the appeal are assessed to
appellee.
_________________________________
W. FRANK CRAWFORD,
PRESIDING JUDGE, W.S.
CONCUR:
____________________________________
ALAN E. HIGHERS, JUDGE
____________________________________
DAVID R. FARMER, JUDGE
15
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United States Court of Appeals
Fifth Circuit
F I L E D
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT March 8, 2007
Charles R. Fulbruge III
Clerk
No. 06-41237
Summary Calendar
UNITED STATES OF AMERICA
Plaintiff - Appellee
v.
JAMEEL CASEY
Defendant - Appellant
--------------------
Appeal from the United States District Court
for the Eastern District of Texas
USDC No. 4:05-CR-254
--------------------
Before KING, HIGGINBOTHAM, and GARZA, Circuit Judges.
PER CURIAM:*
Without the benefit of a plea agreement, Jameel Casey
pleaded guilty to one count of conspiracy to commit fraud and
related activity in connection with computers. Casey was
sentenced to 27 months of imprisonment and to a three-year term
of supervised release. Casey challenges the district court’s
loss determination. Specifically, he contends that the loss
determination should have been based on the “actual” loss to the
lending institutions instead of the “intended” loss.
*
Pursuant to 5TH CIR. R. 47.5, the court has determined that
this opinion should not be published and is not precedent except
under the limited circumstances set forth in 5TH CIR. R. 47.5.4.
No. 06-41237
-2-
The amount of loss is a factual finding reviewed for clear
error; the method by which losses are determined is reviewed de
novo. United States v. Deavours, 219 F.3d 400, 402 (5th Cir.
2000). Due to his fraudulent actions, Casey helped customers
obtain loans that they would not otherwise have qualified. Casey
had no control over repaying the loans if the customers
defaulted. Consequently, due to his fraudulent actions, Casey
put the lending institutions at risk for the full line of credit
extended to the consumers. Thus, the district court did not err
in assessing Casey’s offense level based on the intended loss,
rather than the actual loss, figure of the full line of credit
extended by the lending institutions to the consumers. See
United States v. Morrow, 177 F.3d 272, 301 (5th Cir. 1999);
United States v. Tedder, 81 F.3d 549, 551 (5th Cir. 1996). Thus,
the judgment of the district court is AFFIRMED.
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210 Va. 309 (1969)
RALPH N. BOYKINS
v.
COMMONWEALTH OF VIRGINIA.
Record No. 7001.
Supreme Court of Virginia.
December 1, 1969.
Present, All the Justices.
1. When sufficiency of evidence is challenged after conviction, appellate court will consider evidence in light most favorable to Commonwealth. Burden is upon Commonwealth to prove beyond a reasonable doubt that motive, time, place, means and conduct concur in pointing out the accused as the perpetrator of the crime. Evidence clear that deceased met his death through criminal agency. Relationship between defendant and the decedent, his partner, was strained because defendant had suspected decedent of stealing company funds. Defendant had more than once stated that he would pay someone to kill decedent. Decedent's body was found on company premises with no evidence of a break-in. Evidence indicated that automobile with dealer's tags, observed near scene of crime, was later sighted with defendant operating automobile at excessive speed. Automobile later found in a lake nearby with same dealer's license tags in trunk. Search of defendant's home disclosed bullets of same caliber as those that caused decedent's death. Facts and circumstances established were consistent with guilt and inconsistent with innocence.
2. Conviction should not be reversed unless the introduction of improper evidence suggests manifest probability that it was prejudicial to the defendant.
3. While it would have been proper for the trial court to have included in instruction on flight the words "if proven", failure to do so is not reversible error.
4. Trial court sustained defendant's objection by admonishing Commonwealth's attorney to argue only matters in evidence and Commonwealth's attorney obeyed ruling of the court. Jury had heard evidence and were judges of what evidence had been introduced. Counsel for defendant did not ask for a mistrial. Action of trial court sufficient.
Error to a judgment of the Corporation Court of the City of Norfolk. Hon. H. Lawrence Bullock, judge presiding.
Reid M. Spencer (Wolcott, Redfern, Spencer & Rivers, on brief), for plaintiff in error.
W. Luke Witt, Assistant Attorney General (Robert Y. Button, Attorney General; Reno S. Harp, III, Assistant Attorney General, on brief), for defendant in error.
I'ANSON
I'ANSON, J., delivered the opinion of the court.
Ralph N. Boykins, defendant, was tried by a jury on an indictment charging him with the murder of Junius P. Fulton, Jr. He was found guilty of voluntary manslaughter and his punishment fixed at five years in the State penitentiary. Sentence was pronounced in accordance with the jury's verdict, and the defendant is here on a writ of error to the judgment.
Defendant contends that the trial court erred (1) in holding that the evidence was sufficient to support his conviction; (2) in permitting evidence of deceased's character; (3) in granting instruction No. 4; and (4) in not restraining the Commonwealth's attorney from arguing facts not in evidence.
The evidence shows that the defendant and Fulton were partners in a used-car business operating under the name of Auto City, Inc., located on Granby Street between 24th and 25th Streets in the city of Norfolk, Virginia. Business had not been going well, and defendant had expressed his belief that his partner, Fulton, was stealing from the company. He stated to several employees that he would pay $1000 for someone to kill Fulton, but no one had taken him seriously enough to mention this to Fulton. Sometime thereafter, on October 18, 1967, Fulton was found shot to death in his office.
At 7:30 in the morning of October 18th, W. W. Strickland noticed as he passed Auto City that a burgundy Ford was parked on Granby Street near the company office. At 7:40 a.m., R. Triplett, who worked nearby, noticed a 1967 burgundy Ford with a dealer's license tag parked partly across the sidewalk close to the office. He also recalled hearing two loud reports as he approached Auto City, which he assumed to be the backfire of a passing bus. He remarked that he had never before seen a car parked by the office that early in the morning. When Triplett walked past Auto City again between 8:15 and 8:20 a.m. he noticed that the burgundy Ford he had seen earlier was gone. Between 8:15 and 8:30 a.m., Leon Smith, an employee of *311 Auto City, who was near the intersection of Church and 25th Streets, which is about three blocks from Auto City, recognized the defendant driving a 1967 burgundy Ford with dealer's license plate No. U.D. 31576, headed east, away from his place of business. The car was traveling at approximately 35 miles per hour, ten miles over the speed limit, and it did not halt for a stop sign at the intersection.
At 8:40 a.m., Nat Turner, another employee of Auto City, unlocked the building and discovered Fulton dead in his office; his body was still warm. His pistol, which he always carried with him, was on the floor and it had not been fired. There was no evidence of a forced break-in.
Dr. Karnitschnig, deputy chief State medical examiner, testified that Fulton's death was caused by two gunshot wounds in his head. He identified the bullets as .32 caliber lead, and said they were fired at close range, probably 6 to 12 inches away from decedent's head. The weapon was never found, nor was it shown whether a pistol or rifle was used.
Police Sergeant Hurst testified that at 11:30 on the morning of the offense he arrived at Lake Smith, about twenty minutes away by car from Auto City, where a 1967 maroon Ford had been found earlier. When the car was later pulled out of the lake a clip-on dealer's license tag bearing the number UD 31576 was found under some mud in the trunk of the car. Hurst further said that he searched defendant's home in Virginia Beach and found five .32 caliber cartridges, four steel-jacketed and one lead. He also found two guns, but neither was of .32 caliber.
The defendant neither testified nor called any witnesses in his behalf.
Defendant contends that the Commonwealth's evidence is wholly circumstantial and it is insufficient to support his conviction.
When the sufficienty of evidence is challenged after a conviction, it is our duty to consider it in the light most favorable to the Commonwealth and give it all reasonable inferences fairly deducible therefrom. We should affirm the judgment "unless it appears from the evidence that such judgment is plainly wrong or without evidence to support it." Code | 8-491; Allison Commonwealth, 207 Va. 810, 811, 153 S.E.2d 201, 203 (1967); Wright Commonwealth, 196 Va. 132, 137, 82 S.E.2d 603, 606 (1954).
We have many times dealt with the character and sufficiency of circumstantial evidence to support a conviction. In the recent case of *312 Braxton Commonwealth, 209 Va. 750, 752, 167 S.E.2d 120, 121, 122 (1969), we quoted from La Prade Commonwealth, 191 Va. 410, 418, 61 S.E.2d 313, 316 (1950), as follows:
{"'[If] the proof relied upon by the Commonwealth is wholly circumstantial, as it here is, then to establish guilt beyond a reasonable doubt all necessary circumstances proved must be consistent with guilt and inconsistent with innocence. They must overcome the presumption of innocence and exclude all reasonable conclusions inconsistent with that of guilt. To accomplish that, the chain of necessary circumstances must be unbroken and the evidence as a whole must satisfy the guarded judgment that both the corpus delicti and the criminal agency of the accused have been proved to the exclusion of any other rational hypothesis and to a moral certainty. Yet what inferences are to be drawn from proved facts is within the province of the jury and not the court so long as the inferences are reasonable and justified.'"
The burden is upon the Commonwealth to prove beyond a reasonable doubt that motive, time, place, means and conduct concur in pointing out the accused as the perpetrator of the crime. Dean Commonwealth, 73 Va. (32 Gratt.) 912, 926 (1897); Abdell Commonwealth, 173 Va. 458, 470, 2 S.E.2d 293, 298 (1939).
There can be no doubt from the evidence that Fulton met his death through a criminal agency. Hence the remaining question is whether the evidence is sufficient to prove that the defendant was the perpetrator of the crime.
We think the evidence is sufficient to support the conviction. Defendant believed that Fulton was stealing the company's funds, and he more than once had offered to pay someone to kill him. It appears that the perpetrator of the crime had a key to the office because there was no evidence of a break-in. A burgundy Ford with a dealer's license tag was seen parked close to the Auto City office at 7:40 on the morning the offense was committed. The witness who saw the car at that time also heard two loud reports as he walked by the place of business. When he again walked by Auto City between 8:15 and 8:20 a.m., the car he had seen earlier was not there. Between 8:15 and 8:30 a.m., the defendant was seen by one of his employees about three blocks from Auto City, headed away from his place of business. The automobile that defendant was driving answered the description of *313 the one sighted earlier at the scene of the crime. The car had a dealer's license tag on it, No. UD 31576, and it was traveling at an excessive speed. At the speed the car was moving, it could be concluded that the time required for it to travel from Auto City to the point where it was seen by the witness was only a matter of seconds. This same car was found sometime later that morning in Lake Smith, about twenty minutes away from Auto City, and the dealer's license tag, UD 31576, was found in the trunk of the car. The bullets that caused Fulton's death were of .32 caliber, and upon a search of defendant's home the same caliber bullets were found. When the deceased's body was found at 8:40 a.m. it was still warm, indicating that Fulton was shot only a short time before that. From these facts and the unbroken chain of circumstances the jury could conclude that the Commonwealth had met its burden of proving beyond a reasonable doubt that motive, time, place, means and conduct had concurred in pointing to the defendant as the perpetrator of the crime. The evidence established was consistent with defendant's guilt and inconsistent with his innocence.
Defendant next contends that it was prejudicial error to admit into evidence a permit issued to Fulton to carry a concealed weapon, as it was evidence of his good character.
A police officer was permitted to read to the jury only the legend, "Permit to carry a concealed weapon in the State of Virginia." The permit was admitted in evidence but later withdrawn and the jury was instructed to disregard it before its significance was explored. The action of the court eliminated any possible prejudice to the defendant. A conviction should not be reversed unless the introduction of improper evidence suggests a manifest probability that it was prejudicial to the defendant. Coffey Commonwealth, 188 Va. 629, 636, 51 S.E.2d 215, 218 (1949).
Defendant contends that instruction No. 4, dealing with the question of flight, was erroneous because it did not contain the words "if proven" and the jury could conclude that the trial judge was telling them that the defendant did flee from the crime.
The instruction told the jury that the flight of a person after the commission of a crime may be considered by the jury along with other evidence as tending to show guilt of the accused, and should be given such weight as they deemed proper in connection with other pertinent and material facts and circumstances.
In Carson Commonwealth, 188 Va. 398, 409, 49 S.E.2d 704, *314 709 (1948), relied on by the defendant, this court did use the words "if proven" in stating what was a proper instruction relating to flight after the commission of a crime. But we did not hold that an instruction on flight must include the words "if proven."
The instruction does not indicate to the jury that the court was telling them that the defendant did flee from the scene of the crime. It merely told the jury that flight could be considered along with all the other evidence in the case. Concededly, it would have been proper for the trial court to have amended the instruction by inserting the language "if proven" after the word "crime" but its failure to do so is not reversible error.
Lastly, defendant contends that it was prejudicial error for the trial court not to have instructed the Commonwealth's attorney during summation to refrain from arguing facts not in evidence and refusing to instruct the jury to disregard the statement that the defendant "ditched the car."
The record shows that the court sustained defendant's objection by admonishing the Commonwealth's attorney to argue only matters in the evidence. The Commonwealth's attorney obeyed the ruling of the court and did not again refer to the statement. We think the action of the court was sufficient. The jury had heard the evidence, and they were the judges of what evidence had been introduced. Moreover, counsel did not ask for a mistrial. See, Funk Commonwealth, 163 Va. 1014, 1017, 175 S.E. 861, 862 (1934).
For the reasons stated, the judgment of conviction is
Affirmed.
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93 F.3d 593
96 Cal. Daily Op. Serv. 6178, 96 Daily JournalD.A.R. 10,118ATTORNEYS TRUST, Plaintiff-Appellant,andCMC Magnetics Corporation aka CMC, a Republic of ChinaCorporation, Cross-Defendant-Appellant,v.VIDEOTAPE COMPUTER PRODUCTS, INC., for itself & dba VideoComputer Products, Inc., Defendant-Appellee,andVideotape Products, Inc., Cross-claimant-Appellee.
No. 95-55410.
United States Court of Appeals,Ninth Circuit.
Argued and Submitted July 11, 1996.Decided Aug. 20, 1996.
Richard C. Harding and W. Michael Mayock, Pasadena, California, for plaintiff-appellant Attorneys Trust and cross-defendant-appellant CMC Magnetics Corporation.
William K. Henley, Hahn & Hahn, Pasadena, California, for defendant-appellee Videotape Computer Products and cross-claimant-appellee Videotape Products, Inc.
Appeal from the United States District Court for the Central District of California, David V. Kenyon, District Judge, Presiding. D.C. No. CV-92-03442-KN(Ex).
Before FERNANDEZ and TASHIMA, Circuit Judges, and MERHIGE,* District Judge.
FERNANDEZ, Circuit Judge:
1
CMC Magnetics Corporation, a Republic of China corporation, claimed that Videotape Products, Inc., a California corporation (VTP), was indebted to it. CMC assigned its claim to Attorneys Trust (AT), which is a business name of a California citizen. AT itself then brought suit against VTP. VTP, in turn, cross-complained against CMC for breach of warranty in the sale of certain videotape housings. The district court found in favor of VTP and entered judgment against CMC and AT, which they now appeal. They claim that the district court had no subject matter jurisdiction and that it also made a number of errors in deciding the merits of the case.1 We affirm.
BACKGROUND
2
The business relationships between CMC and VTP are somewhat complex because most of their dealings proceeded through the use of intermediaries. Nevertheless, the district court determined that the intermediaries should be disregarded and that CMC and VTP were, in fact, dealing with one another. Therefore, it allowed various offsets and, ultimately, rendered a substantial money judgment in favor of VTP and against CMC.
3
Most of the details of the transactions are not important to resolution of the jurisdictional question, but one transaction is. It is undisputed that CMC sold 1,300,000 videotape housings to VTP and that, rather than paying for them in cash, VTP purported to offset the amounts due against other debts owed by CMC to VTP.
4
CMC decided to sue VTP for the price of the housings ($614,110.20 after admitted offsets), but rather than do so directly it contacted AT, a collection agency. The assignment to AT was for collection purposes only and was made, as AT and CMC now say, so that CMC, a foreign corporation, would not have to navigate the American legal system by itself. AT was to proceed in the attempt to collect the alleged debt and was to receive 12 percent for its trouble. AT filed this diversity action, and when VTP cross-complained the attorney representing AT also appeared on behalf of CMC. The action then proceeded to trial and to a result inimical to the interests of CMC.
5
AT and CMC then decided, among other things, that the district court did not have jurisdiction because both AT and VTP were citizens of California. See 28 U.S.C. § 1332(a). This appeal followed.
STANDARD OF REVIEW
6
"The existence of subject matter jurisdiction is a question of law, and our review is de novo." Nike, Inc. v. Comercial Iberica de Exclusivas Deportivas, S.A., 20 F.3d 987, 990 (9th Cir.1994). "We will dismiss an action on appeal if jurisdiction is lacking." May Dep't Store v. Graphic Process Co., 637 F.2d 1211, 1216 (9th Cir.1980).
JURISDICTION
7
It is rather unusual for a plaintiff to proceed all the way through trial and then claim that there was no jurisdiction in the first place. It is more unusual, even rare, for that assertion to revolve around the question of whether an assignment for collection was sufficient to change the jurisdictional picture, but that is the issue in this case. Of course, "[a] party may raise jurisdictional challenges at any time during the proceedings." Id. That includes a disappointed plaintiff. See Albrecht v. Lund, 845 F.2d 193, 194 (9th Cir.), as amended, 856 F.2d 111 (9th Cir.1988). We, therefore, will consider the jurisdictional issue, even though it was raised on appeal for the first time. See id.
8
A plaintiff may attempt to create or destroy diversity jurisdiction by making a transfer which is an assignment in name only. In either case, the plaintiff tampers with the jurisdiction of the court by artificially affecting it.
9
The more common case is one in which a plaintiff has attempted to create diversity jurisdiction by making an improper or collusive assignment. It is that kind of attempt which has attracted the attention of Congress. Congress has declared that "[a] district court shall not have jurisdiction of a civil action in which any party, by assignment or otherwise, has been improperly or collusively made or joined to invoke the jurisdiction of such court." 28 U.S.C. § 1359. The Supreme Court has applied and discussed that statute in what has become the leading case in the jurisdiction-tampering area. See Kramer v. Caribbean Mills, Inc., 394 U.S. 823, 89 S.Ct. 1487, 23 L.Ed.2d 9 (1969).
10
In Kramer, a Panamanian corporation, the Panama and Venezuela Finance Company (Panama), had a contractual dispute with a Haitian corporation. Because both were citizens of foreign states, there could be no diversity of citizenship between them. Cf. 28 U.S.C. § 1332(a)(2). Panama assigned its interest in the contract to Kramer, an attorney who was a citizen of Texas. "The stated consideration was $1. By a separate agreement dated the same day, Kramer promised to pay back to Panama 95% of any net recovery on the assigned cause of action, 'solely as a Bonus.' " Id. at 824, 89 S.Ct. at 1488 (footnote omitted). Kramer then brought an action in the United States District Court for the Northern District of Texas and alleged diversity of citizenship between the defendant and himself. The Supreme Court held that there was no diversity.
11
The Court relied upon § 1359, and in reaching its decision it declared:
12
When the assignment to Kramer is considered together with his total lack of previous connection with the matter and his simultaneous reassignment of a 95% interest back to Panama, there can be little doubt that the assignment was for purposes of collection, with Kramer to retain 5% of the net proceeds "for the use of his name and his trouble in collecting." If the suit had been unsuccessful, Kramer would have been out only $1, plus costs.
13
Id. at 827-28, 89 S.Ct. at 1490. The Court went on to say that "Kramer candidly admits that the 'assignment was in substantial part motivated by a desire by [Panama's] counsel to make diversity jurisdiction available.' " Id. at 828, 89 S.Ct. at 1490. But the Court also stated that it was not deciding whether motive would be important if there were an absolute assignment "with the transferor retaining no interest in the subject matter." Id. at 828 n. 9, 89 S.Ct. at 1490 n. 9.
14
The Court has not spoken on the precise issue since then, but a good deal of law has developed in the other federal courts. Even though the case at hand is a destruction of diversity case, we will survey the cases which refer to creation of diversity because the informing principles are much the same. We will then take up the more meager authority on destruction of diversity and will finally apply the emergent principles to the facts of the case at hand.
A. Creation of Diversity
15
Since Kramer, courts have set out a number of factors which are to be considered in deciding whether an assignment is improper or collusive. Among them are: were there good business reasons for the assignment; did the assignee have a prior interest in the item or was the assignment timed to coincide with commencement of litigation; was any consideration given by the assignee; was the assignment partial or complete; and was there an admission that the motive was to create jurisdiction. See Pasquotank Action Council, Inc. v. City of Virginia Beach, 909 F.Supp. 376, 383 (E.D.Va.1995) (noting "the two factors set forth in Kramer, that is, whether (1) there was nominal or no consideration involved in the transaction; and (2) the interest in the action retained by assignor"); Haskin v. Corporacion Insular de Seguros, 666 F.Supp. 349, 353-54 (D.P.R.1987) (Kramer requires that the assignee have "some independent, legitimate interest in the dispute that predated the assignment and was not a complete stranger to the transaction"; motive also "relevant but not controlling factor") (quotation and citation omitted); Fowler v. Coals, 418 F.Supp. 909, 911-13 (E.D.Tenn.1976) (applying Kramer 's "two-pronged test" and factors to hold that assignment to stockholder of corporation's claim in consideration of $25,000 bonus of proceeds if litigation successful was colorable and motivated by desire to acquire jurisdiction).
16
There is some doubt that the subjective "motive" element is entitled to great weight. See Haskin, 666 F.Supp. at 354 ("[T]here is a split among the Circuits regarding the application of Section 1359 especially concerning the weight that should be accorded to the motive factor." In Kramer "importance of [motive] was significantly undermined when the Court, in a footnote, declined to decide the particular relevance of motive in manufactured diversity cases.") Certainly there is no reason to give motive controlling weight in every case, although it will surely illuminate an otherwise hidden improper motive and may be virtually controlling in some cases. The objective fact of who really is the party in interest is the most important thing to be determined. But even more interesting than the factors themselves are the results of the cases applying them.
17
Broadly speaking, if an assignment is entire, not partial, there is a very good chance that it will be found to be proper. See Westinghouse Credit Corp. v. Shelton, 645 F.2d 869, 871 (10th Cir.1981) (Kramer held that assignments for collection, meaning "recovery on a money debt by litigation," were collusive, not assignments in which lender acquired right to " 'collect' installments from the buyer" for sale of goods); Baker v. Latham Sparrowbush Assocs., 808 F.Supp. 992, 1001-02 (S.D.N.Y.1992) (plaintiff who received assignment of rights to leasehold "not a mere shell entity or collection agent" "like the plaintiff in Kramer "), aff'd, 72 F.3d 246 (2d Cir.1995); Haskin, 666 F.Supp. at 354-56 (assignment which transferred "all rights, title and interest" and "made for value received" deemed bona fide after consideration of several factors); R.C. Hedreen Co. v. Crow Tribal Hous. Auth., 521 F.Supp. 599, 607 (D.Mont.1981) (assignment "valid on its face" where assignor "relinquished all of its interest in the contracts at issue" and "business purpose for assignment" existed); Nagle v. LaSalle Nat'l Bank, 472 F.Supp. 1185, 1190 (N.D.Ill.1979) (assignment in which assignee "may derive an indirect benefit from a successful suit by partially absolving its debts" but "not receive any proceeds of a judgment" is bona fide); Dickson v. Tattnall County Hosp. Auth., 316 F.Supp. 531, 533-34 (S.D.Ga.1970) (" '[t]he body of case law surrounding [§ 1359] is presently in a state of flux' " but "[t]here is no real problem in cases like Kramer " and if assignment is bona fide, § 1359 is not applicable even though assignment may have been motivated in part by desire to create diversity).
18
While motive can often be important, if the assignment is truly absolute and complete, motive often recedes into almost nothing. See R.C. Hedreen Co., 521 F.Supp. at 607. However, even when there is a complete assignment, collusion may be found. That is most likely to be where there is an excellent opportunity for manipulation, as in transfers between corporations and their subsidiaries or transfers to a shell corporation. See, e.g., Toste Farm Corp. v. Hadbury, Inc., 70 F.3d 640, 642, 646 (1st Cir.1995) (merger of corporation into another corporate shell ineffective to create diversity jurisdiction); Nike, Inc., 20 F.3d at 991, 993 (assignment by wholly owned corporate subsidiary of its rights to parent corporation ineffective to create diversity jurisdiction); Yokeno v. Mafnas, 973 F.2d 803, 809-11 (9th Cir.1992) (assignment between corporation and director presumptively collusive and on remand could only be overcome with proof of legitimate business reason and consideration of several other factors); see also J.F. Pritchard & Co. v. Dow Chem. of Canada, Ltd., 331 F.Supp. 1215, 1220, 1222 (W.D.Mo.1971) (whether assignment by wholly owned corporate subsidiary of its rights to parent corporation was collusive presented "very close question of fact and law"; claim dismissed on forum non conveniens ground), aff'd, 462 F.2d 998 (8th Cir.1972). But other fishy complete assignments may suffer the same fate. See, e.g., Pasquotank Action Council, 909 F.Supp. at 379-80, 386 (a complete assignment of part of a parcel of property, where a larger part of the parcel was retained). And even an assignment meant to preserve existing diversity might run afoul of these rules where the true real party in interest is not diverse. Compare Pratt v. First Hays Banshares, Inc., 682 F.Supp. 1177, 1181 (D.Kan.1988) (assignment of fractional interest in claim to preserve jurisdiction when assignor remained interested party in name only collusive) with Samincorp, Inc. v. Southwire Co., Inc., 531 F.Supp. 1, 3 (N.D.Ga.1980) ("no collusion as contemplated by 28 U.S.C. § 1359" where diversity jurisdiction existed before assignment).
19
On the other hand, where an assignment is partial, the courts are very likely to find that there is an improper or collusive transfer because the prior owner still has an interest. There are a few minor exceptions. See Bailey v. Prudence Mut. Casualty Co., 429 F.2d 1388, 1389-90 (7th Cir.1970) (assignment of claim not collusive even though assignor would receive any excess recovery not necessary to satisfy judgment against assignor); Long John Silver's, Inc. v. Architectural Eng'g Prods. Co., Inc., 520 F.Supp. 753, 754-57 (W.D.Pa.1981) (unclear whether assignment was complete or if the assignor still had some interest). But they are unusual. In fact, research has not disclosed a single case where an assignment for collection (however framed or disguised) has been held to be anything but collusive. See, e.g., Kramer, 394 U.S. at 827-30, 89 S.Ct. at 1490-91 (assignor retained 95% of proceeds); Airlines Reporting Corp. v. S & N Travel, Inc., 58 F.3d 857, 859, 861-62 (2d Cir.1995) (twenty-nine air carriers "real and substantial parties" because collection agency was "mere conduit for a remedy owing to others"); Harrell & Sumner Contracting Co., Inc. v. Peabody Petersen Co., 546 F.2d 1227, 1228-29 (5th Cir.1977) (assignment of 50% interest in net proceeds of recovery, after payment of attorney's fees and costs, plus finding that interest assigned for legal and tactical reasons collusive under Kramer ); Syms v. Castleton Indus., Inc., 470 F.2d 1078, 1082, 1090 (5th Cir.1972) (assignor retained 30% interest in claim despite contrary language in assignment; no consideration given for assignment); cf. Fowler, 418 F.Supp. at 910, 913 (assignment to corporate officer for benefit of shareholders).
20
While the courts are interested in motive because it can shed a great deal of light on otherwise ambiguous circumstances and can even be virtually controlling in some situations, the main focus is usually upon the reality of the transaction itself. Does the assignee have something to lose because he had preexisting rights; or has the assignee paid for the assignment; or has he acquired only a relatively small part of the underlying interest, a part that could be expected to relate to expenses of collection alone; or, finally, is the assignment merely one for collection? In fine, is the assignee truly a real party in interest or just a strawman for all practical purposes? If the latter, an assignment which creates jurisdiction will be dubbed improper.
B. Assignment to Destroy Jurisdiction
21
There has been much less case law on the question of assignments which destroy jurisdiction. Of course, assignments of that kind are not specifically covered by 28 U.S.C. § 1359. However, what modern authority there is also focuses on the reality of the transaction. Motive, again, is a factor, but courts have remained sensitive to and concerned by manipulations of their jurisdiction with partial assignments which lack reality and amount to no change in the identity of the party with the real interest in the outcome of the case.
22
In Grassi v. Ciba-Geigy, Ltd., 894 F.2d 181 (5th Cir.1990), the plaintiffs had obtained a Texas state court default judgment against a United Kingdom corporation. The United Kingdom does not allow enforcement of foreign default judgments against British corporations which do not maintain an office in the foreign country. Id. at 182. The Grassis decided to commence a collection action against the British corporation's parent, which was also a foreign corporation. Id. However, they wished to keep the action in state court. They, therefore, assigned 2% of their judgment to a Costa Rican corporation, which was to provide them with investigation and collection services. Then, they and the Costa Rican corporation brought the state court action. When the defending foreign corporation removed, the Grassis claimed that there was a lack of jurisdiction because there were foreign corporations on both sides of the case. That, they argued, precluded diversity jurisdiction. Id.; cf. 28 U.S.C. § 1332(a)(2).
23
The Fifth Circuit held that "[b]ecause of their similarity, assignments which destroy diversity and assignments which create diversity should be analyzed under the same standard; that is, the issue of whether the assignment was improperly or collusively made is to be resolved as a simple question of fact." Id. at 186. It then determined that several facts supported the proposition that the assignment in question was improper: the assignee had no prior interest in the litigation, and the assignment was made shortly before suit was filed; there was no consideration for the assignment other than what was "essentially a contingent fee arrangement for collection work, which could have been effectuated without an assignment"; the assignment was partial; and the Grassis and the assignee were represented by the same attorney. Id. Notably, the facts were of an objective nature, regardless of motive. However, the court determined that the real motive of the Grassis was to remain in state court. Id.
24
Other cases are to the same effect. For example, Carter v. Seaboard Coast Line R.R. Co., 318 F.Supp. 368, 369, 370, 372 (D.S.C.1970), involved an 1/100 assignment of a minor's cause of action. The assignment was expressly executed in order to remain in a certain jurisdiction. The court held that "whatever may have been deemed the rule prior to Kramer, the proposition is now settled that in connection with motions [based on jurisdiction] 'neither state law nor rule 17(a) demands adherence to the principle that the underlying motive or purpose of an assignment will not be examined.' " Id. at 372; see also Gentle v. Lamb-Weston, Inc., 302 F.Supp. 161, 162, 166 (D.Me.1969) (holding that 1/100 assignment made for purpose of destroying diversity jurisdiction did not defeat federal jurisdiction).
25
All of these cases involved obviously collusive partial assignments, which were motivated by a desire to defeat diversity jurisdiction. More than that, however, they were also cases where the assignee was not truly a real party in interest. Rather, the assignee was a strawman and had no real interest in the outcome of the case, although a good outcome would have had some economic value. In Grassi, of course, the interest was no more than a contingent fee arrangement in a collection matter, and the minuscule interests in Carter and Gentle had very very little value. As Carter explained, there is no more reason for federal courts to countenance destruction of jurisdiction by the use of straw parties than there is for them to countenance the creation of jurisdiction in that manner. See 318 F.Supp. at 373. In either event, another party is deprived of a forum to which he would otherwise be entitled, and the jurisdiction which Congress conferred upon the federal courts is manipulated. Thus, the nature of the assignment must be considered when it is argued that jurisdiction has been destroyed.
26
In reaching our conclusion that the nature of the assignment must be considered, we do not overlook older Supreme Court decisions regarding removal. See, e.g., Provident Sav. Life Assur. Soc'y v. Ford, 114 U.S. 635, 5 S.Ct. 1104, 29 L.Ed. 261 (1885); see also Carson v. Dunham, 121 U.S. 421, 7 S.Ct. 1030, 30 L.Ed. 992 (1887); Leather Mfrs.' Nat'l Bank v. Cooper, 120 U.S. 778, 7 S.Ct. 777, 30 L.Ed. 816 (1887); Oakley v. Goodnow, 118 U.S. 43, 6 S.Ct. 944, 30 L.Ed. 61 (1886). In those cases, the Court refused to allow removal of an action filed in state court after a diversity-destroying colorable assignment was made, even if it was for collection only. In each of those cases, the Supreme Court indicated that it was loath to interfere with state court jurisdiction, that nothing in the removal statutes referred to removal in such an instance, and that the parties could present their real party in interest objections and their assertions about destruction of federal court jurisdiction as defenses in the state court. See, e.g., Provident, 114 U.S. at 640-41, 5 S.Ct. at 1107.
27
The Fifth Circuit has expressed doubt about the continuing validity of the underlying rationales of those cases. See Grassi, 894 F.2d at 182-85. While the Fifth Circuit's doubts are well grounded, we need not recite them here, nor need we rely upon them. This is not a case where removal was sought on grounds that could be characterized as defensive and which, therefore, could not be a proper basis for removal. See, e.g., Caterpillar, Inc. v. Williams, 482 U.S. 386, 393, 107 S.Ct. 2425, 2430, 96 L.Ed.2d 318 (1987).
28
This case was filed in the district court in the first instance, and the district court should have assessed its subject matter jurisdiction over the claim of AT and CMC at the commencement of the action. In so doing, it would have been proper for the district court to look at the true jurisdictional facts and to determine whether it could proceed. At the same time, the district court would have been in a position to identify the real party in interest. However, because the issue was not raised in the district court, we must now consider the jurisdictional question ab initio. While we are not positioned to make factual determinations, we can rely upon the undisputed facts which are before us. We will now do so.
C. This Case
29
When the above principles are applied, it becomes apparent that jurisdiction was not destroyed in this case when CMC assigned an account for collection to AT. There can be no doubt that the assignment was solely for collection and that AT was simply to get a 12% contingent fee for its trouble. The complaint declared that the assignment was merely for collection, and the assignment itself confirms that. Moreover, the asserted need for the assignment rings rather hollow. Whether CMC knew its way around the court system or not is irrelevant because it had to be represented by counsel. See Central Dist. of Cal. Local Rule 2.9.1 (corporation may not appear pro se ). When CMC itself was sued, AT's counsel merely answered the cross-complaint for CMC, and the litigation proceeded. In other words, the case has almost all of the classic elements of an assignment which does not affect jurisdiction: AT had no prior interest in the claim, and the assignment was timed to coincide with the commencement of litigation; the assignee gave no consideration other than its own collection work for a contingent fee, which could have been effectuated without an assignment; because 88% was to go to CMC, the assignment was partial, and, ultimately, the same counsel represented both CMC and AT. The true involvement of CMC is further underscored by the fact that while AT was the nominal party in the complaint, it alleged that CMC should be called the plaintiff. AT further asserted that jurisdiction was founded upon 28 U.S.C. § 1332(a)(2), which, of course, defines jurisdiction between a citizen of one state and a citizen of a foreign state. That is another clear indication that CMC was the real party in interest in this case. Finally, when CMC did become a cross-defendant in the case, AT's attorneys went on representing it with no further ado.
30
The only hook upon which AT and CMC now try to hang their hat is "motive," and if the only point at issue were motive, it would be a strong hook indeed. Because the action was filed in federal court, the motive (at that time) could hardly have been to destroy federal jurisdiction. In other words, they now seek to rely on an "empty mind--pure heart" approach. Despite all of the objective facts, they now say that because they did not intend to destroy jurisdiction, they have destroyed it. But because motive is only a factor, this partial assignment did not change the real party in interest for jurisdictional purposes. Their empty mind claims cannot save the day, even though their hearts have now somewhat blackened. In other words, the district court did have diversity jurisdiction. CMC and AT did not set out to defeat jurisdiction by this assignment for collection, so they filed their action in the district court. They cannot now defeat jurisdiction by relying upon the assignment.
CONCLUSION
31
This case presents the most unusual situation of a party who took an assignment for collection and who only later decided that the assignment destroyed diversity jurisdiction, even though destruction was not the motive. Thus, this case comes up in the context of an action filed directly in the district court rather than in the removal context.
32
We hold that when an action is filed directly in the district court the federal courts are empowered to determine their own jurisdiction. In doing so, they may look to all of the facts and circumstances and ask whether the assignment did destroy diversity jurisdiction. When that is done in this case, the answer is in the negative. Thus, while AT and CMC might wish that they had not entered our portals, they did--their tergiversation comes too late.
33
AFFIRMED.
*
The Honorable Robert R. Merhige, Jr., Senior United States District Judge for the Eastern District of Virginia, sitting by designation
1
We address this jurisdictional claim in this opinion. The other issues are addressed in an unpublished memorandum disposition filed this date
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516 F.2d 1313
1975-1 Trade Cases 60,319, 16 UCC Rep.Serv. 1199
Armen DE FILIPPO and Sheldon Fleishman t/a A & S, a partnershipv.FORD MOTOR COMPANY, a Delaware Corporation, et al.,Appellant in No. 74-1877.Armen DE FILIPPO and Sheldon Fleishman t/a A & S, apartnership, Appellants inNo. 73-1878,v.FORD MOTOR COMPANY, a Delaware Corporation, et al.
Nos. 74-1877, 74-1878.
United States Court of Appeals,Third Circuit.
Argued March 17, 1975.Decided May 8, 1975.
H. Francis DeLone, Richard G. Schneider, Richard R. Rulon, Stephen A. Stack, Philadelphia, Pa., for appellant in No. 74-1877, Ford Motor Co; Dechert Price & Rhoads, Philadelphia, Pa., of counsel.
Walter W. Rabin, Hurd Baruch, Philadelphia, Pa., for De Filippo and Fleishman as appellees in No. 74-1877 and as appellants in No. 74-1878; Meltzer & Schiffrin, Philadelphia, Pa., of counsel.
Before ALDISERT, GIBBONS and GARTH, Circuit Judges.
OPINION OF THE COURT
ALDISERT, Circuit Judge.
1
Cross appeals from a judgment entered after a jury's answers to special interrogatories require us to decide whether the district court erred (1) in applying a principle of per se unreasonableness to conduct of Ford Motor Company and certain Philadelphia area Ford dealers allegedly in violation of § 1 of the Sherman Act and (2) in applying the Pennsylvania Statute of Frauds to defeat plaintiffs' recovery for breach of contract. We reverse the district court's resolution of the Sherman Act issue and affirm its action in interpreting the Uniform Commercial Code's Statute of Frauds.
2
Ford appeals from a judgment of $2,250,000 plus attorneys' fees of $384,357 entered for plaintiffs on a count charging that Ford and its Philadelphia dealers engaged in a concerted refusal to deal with plaintiffs, which constituted a per se violation of § 1 of the Sherman Act.1 Plaintiffs Armen De Filippo and Sheldon Fleishman appeal from the entry of judgment for defendant as a matter of law on the count alleging breach of contract by Ford for the sale of a Ford dealership known as Presidential Motors.
I.
3
Plaintiffs became Ford dealers at Chestnut Motors, Inc. in West Philadelphia in 1969. Less than nine months later part of the facilities, leased from the previous dealer, was destroyed by fire. Thereupon plaintiffs and Ford discussed the possibility of plaintiffs' acquiring another dealership in the city. On December 18, 1969, plaintiffs signed an instrument, found by the jury to be a contract, according to which they were to purchase the assets, less realty, of Presidential Motors. The real estate was to be leased by plaintiffs from Ford. The instrument also contemplated that plaintiffs would be credited with the value of their interest at Chestnut undiminished by the fire;2 that no risk capital would be invested by plaintiffs for an original period of three (3) months, after which they would put in twenty per cent (20%) of the capital; and that plaintiffs would defer payment of fifty per cent (50%) of the first year's rent and twenty-five per cent (25%) of the second year's rent until the fourth and fifth years of the dealership.
4
When news of the proposal reached other Philadelphia area Ford dealers, they protested to Ford the delayed investment and deferred rent provisions. Ford's legal department advised Ford that the deferred rent provision was unacceptable unless also offered to other dealers, obviously fearing a conflict with the Robinson-Patman Act.3 Thereafter Ford's representatives discussed the possibility of deferred rent plans with other dealers. Ford even considered the purchase and lease-back of dealer-owned real estate so that the deferred rents could be offered to all dealers. Significantly, it is clear from the record that any implementation of the plans was contingent upon acceptance of plaintiffs' proposal.
5
Further problems, however, were posed by dealers who did not wish to sell to and lease back from Ford, and by dealers who believed that they might be injured as a result of the delayed investment feature of the Presidential proposal. Ultimately, therefore, the vice-president and general manager of Ford travelled to Philadelphia, announced to the Philadelphia dealers that Ford would not consummate the Presidential proposal with plaintiffs, and instructed the Philadelphia sales manager that he had no objection to plaintiffs' assuming the Presidential dealership without the delayed investment and deferred rental terms. Plaintiffs made no response to an offer to discuss such a deal. They then filed this lawsuit, including a Sherman Act count, a count for breach of contract, and a count asserting a violation of the Automobile Dealers' Day in Court Act.4
6
After the jury answered special interrogatories, the court entered judgment for plaintiffs on the Sherman Act count. Based on the jury's responses, the court also entered an initial judgment for plaintiffs on the contract claim. However, it thereafter "molded" a verdict for Ford, ruling as a matter of law that the lack of Ford's signature rendered the instrument unenforceable against Ford for noncompliance with the Statute of Frauds provision of the U.C.C. relating to sale of goods.5 The jury found a violation of the Dealers' Day in Court Act, but also found plaintiffs sustained no damages therefrom.6
II.
7
In order to apply the provisions of the Sherman Act to the facts as found by the jury, it is first necessary to consider the teachings of the Supreme Court. On its face § 1 of the Sherman Act prohibits "(e)very contract, combination . . . or conspiracy, in restraint of trade or commerce among the several States." The necessity for some sort of narrowing interpretation of this language was pointed out by Mr. Justice Brandeis in Chicago Board of Trade v. United States, 246 U.S. 231, 238, 38 S.Ct. 242, 244, 62 L.Ed. 683 (1918), where he observed that "(e )very agreement concerning trade, every regulation of trade, restrains." (Emphasis added). As the Court has explained through Mr. Justice Black, the result has been that "the courts have construed (§ 1) as precluding only those contracts or combinations which 'unreasonably' restrain competition." Northern Pacific Ry. v. United States, 356 U.S. 1, 5, 78 S.Ct. 514, 518, 2 L.Ed.2d 545 (1958).
8
In certain situations the Court has presumed the required "unreasonableness"; that is, the Court has determined that the situations constitute per se violations of § 1. As explained by Mr. Justice Black:
9
(T)here are certain agreements or practices which because of their pernicious effect on competition and lack of any redeeming virtue are conclusively presumed to be unreasonable and therefore illegal without elaborate inquiry as to the precise harm they have caused or the business excuse for their use. . . . Among the practices which the courts have heretofore deemed to be unlawful in and of themselves are price fixing, United States v. Socony-Vacuum Oil Co., 310 U.S. 150, 210 (60 S.Ct. 811, 838, 84 L.Ed. 1129); division of markets, United States v. Addyston Pipe & Steel Co. (6 Cir.), 85 F. 271, affirmed, 175 U.S. 211 (20 S.Ct. 96, 44 L.Ed. 136); group boycotts, Fashion Originators' Guild v. Federal Trade Comm'n, 312 U.S. 457 (61 S.Ct. 703, 85 L.Ed. 949); and tying arrangements, International Salt Co. v. United States, 332 U.S. 392 (68 S.Ct. 12, 92 L.Ed. 20).
10
Ibid.
11
Addressing the specific type of activity upon which plaintiffs relied to bring this case within the ambit of per se unreasonableness, the Court teaches:
12
Group boycotts, or concerted refusals by traders to deal with other traders, have long been held to be in the forbidden category. 5 They have not been saved by allegations that they were reasonable in the specific circumstances, nor by a failure to show that they "fixed or regulated prices, parcelled out or limited production, or brought about a deterioration in quality." Fashion Originators' Guild v. Federal Trade Comm'n, 312 U.S. 457, 466-468 (61 S.Ct. 703, 85 L.Ed. 949). Cf. United States v. Trenton Potteries Co., 273 U.S. 392 (47 S.Ct. 377, 71 L.Ed. 700). Even when they operated to lower prices or temporarily to stimulate competition they were banned. For, as this Court said in Kiefer-Stewart Co. v. Seagram & Sons, 340 U.S. 211, 213 (71 S.Ct. 259, 260, 95 L.Ed. 219), "such agreements, no less than those to fix minimum prices, cripple the freedom of traders and thereby restrain their ability to sell in accordance with their own judgment." Cf. United States v. Patten, 226 U.S. 525, 542 (33 S.Ct. 141, 145, 57 L.Ed. 333).
13
Klor's, Inc. v. Broadway-Hale Stores, Inc., 359 U.S. 207, 212, 79 S.Ct. 705, 709, 3 L.Ed.2d 741 (1959).
14
The inquiry in any case seeking to apply this rule of per se unreasonableness must be whether or not the activities of defendants properly fall within the "group boycott" categorization. The necessity for careful delineation of the boundaries of this per se category was aptly expressed in Worthen Bank & Trust Co. v. National Bank Americard, Inc., 485 F.2d 119, 125 (8th Cir. 1973), cert. denied, 415 U.S. 918, 94 S.Ct. 1417, 39 L.Ed.2d 473 (1974):
15
The term "group boycott" . . . is in reality a very broad label for divergent types of concerted activity. To outlaw certain types of business conduct merely by attaching the "group boycott" and "per se" labels obviously invites the chance that certain types of reasonable concerted activity will be proscribed.
16
Accordingly, we have reviewed the case law employing the group boycott concept.
17
In Fashion Originators' Guild of America, Inc. v. Federal Trade Comm'n, 312 U.S. 457, 61 S.Ct. 703, 85 L.Ed. 949 (1941), the members of a large association of textile and garment manufacturers refused to sell to certain retailers. The clear purpose of the combination was the "intentional destruction of one type of manufacture and sale which competed with Guild members." Ibid. at 467, 61 S.Ct. at 708. In addition, the Court noted the "many respects" in which the activities of the Guild ran afoul of the policies of the antitrust laws, including their "tendency to monopoly." Ibid. at 465, 467, 61 S.Ct. 703.
18
In the early case of Binderup v. Pathe Exchange, Inc., 263 U.S. 291, 44 S.Ct. 96, 68 L.Ed. 308 (1923), a national organization of motion picture film distributors, deciding not to sell to an exhibitor, "put an end to his participation in that business." Ibid. at 311, 44 S.Ct. at 100.
19
Klor's, supra, also involved exclusion of a dealer from the market. In that case manufacturers and distributors of electrical appliances allegedly had conspired with a major retailer, Broadway-Hale, either not to sell to Klor's or to sell to it only at discriminatory prices, and had taken from Klor's "its freedom to buy appliances in an open competitive market and drive(n) it out of business as a dealer in the defendants' products." 359 U.S. at 213, 79 S.Ct. at 710. The Court further emphasized that the group activity alleged was "not a case of a single trader refusing to deal with another, nor even of a manufacturer and a dealer agreeing to an exclusive distributorship," ibid. at 212, 79 S.Ct. at 709, but rather a "wide combination consisting of manufacturers, distributors and a retailer." Ibid. at 213, 79 S.Ct. at 710.
20
Eastern States Retail Lumber Dealers' Ass'n v. United States, 234 U.S. 600, 34 S.Ct. 951, 58 L.Ed. 1490 (1914), involved the attempted coercion of wholesalers by an association of lumber retailers who refrained from dealing with those wholesalers that were selling directly to consumers.
21
More recently in United States v. General Motors Corp., 384 U.S. 127, 146, 86 S.Ct. 1321, 1331, 16 L.Ed.2d 415 (1966), the Court has instructed that "(t)he principle of these cases is that where businessmen concert their actions in order to deprive others of access to merchandise which the latter wish to sell to the public, we need not inquire into the economic motivation underlying their conduct." There, the agreement was to eliminate sales by General Motors' dealers to discounters. The Court emphasized that "inherent in the success of the combination . . . was a substantial restraint upon price competition . . . ." Ibid. at 147, 86 S.Ct. at 1331.
22
Kiefer-Stewart Co. v. Seagram & Sons, Inc., 340 U.S. 211, 71 S.Ct. 259, 95 L.Ed. 219 (1951), also involved a restraint upon price competition. The complaint charged an agreement or conspiracy "to sell liquor only to those . . . wholesalers who would resell at prices (below maxima) fixed by (defendants), and that this agreement deprived (plaintiff) of a continuing supply of liquor." Ibid. at 212, 71 S.Ct. at 260. The Court reinstated a judgment for plaintiff.
23
From all this we are able to conclude that a concerted activity constitutes a "group boycott" and is considered per se "in restraint of trade" when "there (is) a purpose either to exclude a person or group from the market, or to accomplish some other anti-competitive objective, or both." Joseph E. Seagram & Sons, Inc. v. Hawaiian Oke & Liquors, Ltd., 416 F.2d 71, 76 (9th Cir. 1969), cert. denied, 396 U.S. 1062, 90 S.Ct. 752, 24 L.Ed.2d 755 (1970), cited with approval in Ark Dental Supply Co. v. Cavitron Corp., 461 F.2d 1093, 1094 (3d Cir. 1972) (per curiam).III.
24
In the case at hand the district court submitted the issue of antitrust liability to the jury by three special interrogatories and the jury answered as follows:
25
1. Do you find that the plaintiffs have established by a preponderance of the evidence that Ford's failure to deal with the plaintiffs on the terms set forth in the documents signed by plaintiffs on December 18, 1969, was the result of a contract, combination or conspiracy entered into between Ford and the Philadelphia area Ford dealers?
Yes X No______
26
If you have answered question 1 "Yes", then proceed to answer question 2.
27
If you have answered question 1 "No", then proceed to answer question 7 (which concerned plaintiffs' claim under the Automobile Dealers' Act).
28
2. Do you find that plaintiffs have shown by a preponderance of the evidence that the purpose of the agreement, if any, between Ford and its Philadelphia area dealers was to prevent plaintiffs from becoming Ford dealers in the greater Philadelphia area on any terms?
Yes______ No X
29
If you have answered question 2 "Yes", then proceed to answer question 4 (which concerned antitrust injury and causation).
30
If you have answered question 2 "No", then proceed to answer question 3.
31
3. Do you find that plaintiffs have shown by a preponderance of the evidence that the agreement, if any, between Ford and its dealers to reject plaintiffs' terms for the acquisition of Presidential's assets constituted an unreasonable restraint of trade?
Yes X No______
32
If you have answered question 3 "Yes", then proceed to answer question 4.
33
If you have answered questions 2 and 3 "No", then proceed to answer question 7.
34
We quickly reject appellees' contention that the jury's affirmative answers to interrogatories Nos. 1 and 3 in this case constitute a sufficient factual finding by the jury to sustain the judgment of antitrust liability. Appellees' Brief at 16. The first interrogatory was clearly limited to the element of agreement; the jury found only a "contract, combination, or conspiracy entered into between Ford and the Philadelphia area Ford dealers." Second, plaintiffs' case was tried strictly on a theory of per se illegality and not under the "rule of reason". Thus the district court held, and the parties agreed, that interrogatory No. 3 was improvidently submitted to the jury.
35
Thus, the sole inquiry before the district court, as it is before us, was whether there is a factual basis for sustaining the contention that the combined action of Ford and the other Philadelphia dealers constituted a "group boycott", as that category has been defined by the teachings of the Supreme Court.
IV.
36
The jury found as a fact that the purpose of the combination was not "to prevent plaintiffs from becoming Ford dealers in the greater Philadelphia area on any terms." (emphasis added). The district court properly observed:
37
The present agreement did not appear to take from plaintiffs their access to Ford dealerships in an "open competitive market;" it merely prevented plaintiffs from acquiring a dealership on special terms. Nor did the present agreement seem to deprive Ford of its freedom to sell to plaintiffs "at the same prices and conditions made available to (its other dealers)."
38
DeFilippo v. Ford Motor Co., 378 F.Supp. 456, 463 (E.D.Pa.1974). The district court, however, apparently found the illicit purpose of the combination to emerge from (1) the withdrawal of the offer to plaintiffs of special terms for delayed investment capital and deferred rentals and (2) a finding by the court and not by the jury "that these terms, or substantially equal terms, were offered to the other dealers." Ibid. at 464; see ibid. at 466.
39
Even assuming the propriety, in a post-trial jural environment, of a trial court's assumption of a fact-finding role entrusted in the case at hand to a jury, the district court's fact finding simply cannot be sustained. It is not supported in the record.
40
The court found such support in an offer made to one Kerry Pacifico by Dennis Wiggins, the Ford regional manager, on January 7, 1970. Appellant effectively responds:
41
It is this conversation of January 7 upon which Judge Newcomer placed primary reliance for his finding that Ford was willing to deal with plaintiffs' competitors on terms it rejected when proposed by plaintiffs (ibid. at 465). He quoted from Wiggins' testimony, but the key portion of the passage makes clear that Ford was willing to offer other dealers deferred rent only in the event that it first accepted plaintiffs' proposal:
42
"Q. O.K., Well, this problem that you considered the most important one, the one about the deferred rent that if you offered it to Armen and Shelley you'd have to offer it to everybody?
43
A. Yes.
44
Q. Well, you kind of already had gone partway on that in your January 7th meeting with Mr. Pacifico. You'd already told him that if the deal went through with Armen and Shelley he could have the same deal and you'd buy his place?
A. Yes." (618a-19a; emphasis added)
45
Wiggins' testimony does not establish, as the lower court suggests, that Ford was willing to grant rent concessions to other dealers but not to plaintiffs or that Ford was unwilling to deal with plaintiffs on terms equal to those provided to other dealers. On the contrary, it shows that, to assure equal treatment of all dealers, Ford was willing to make the same rent concession available to them conditional upon Ford's acceptance of the deferred rent proposal made by plaintiffs.
46
Appellant's Brief at 14-15 (footnote omitted) (emphasis in brief).
47
Other evidence cited by the court in support of its conclusion, 378 F.Supp. at 465, that the deferred rent plan was re-offered to other dealers after plaintiffs' offer had been rejected does not withstand examination. That evidence consists of plaintiffs' repeated attempts to establish this point on cross-examination of a Ford dealer, James Matthews, with the witness' repeated response: "I do not recall . . . . I do not know. . . . I can't answer that. I do not know. . . . I do not know, sir." Appendix at 422a-24a. A disavowal of knowledge may not serve as a legitimate substitute for positive evidence. Moreover, the statement that "(t)hey did have a rent-concession policy that they used under certain conditions, if it was in order . . . .", ibid. at 423a, is no more supportive of the district court's conclusion than Wiggins' testimony.
48
The district court erred in assuming a conclusion, contrary to the evidence adduced at trial, to support its legal determination of an illicit group boycott.
49
Distilled to its essence, the group activity of Ford and its Philadelphia area dealers blocked only the "special terms" arrangement between Ford and plaintiffs. Whatever common law right of action against the other Ford dealers for interference with a contract may have accrued to plaintiffs, the concerted action did not constitute a group boycott in the sense of a per se unreasonable restraint of trade. Plaintiffs were not deprived of the opportunity to become a Ford dealer or to purchase products on the same basis as other dealers. They were deprived simply of the benefits of a contract offered to them at special terms. Such a deprivation, even if the product of concerted action, does not violate § 1 of the Sherman Act. See Part II, supra. Having failed to prove their case, plaintiffs are not entitled to recovery and the judgment in their favor on the Sherman § 1 count will be reversed.
50
Since we determine that the district court erred in entering judgment for plaintiffs on the basic antitrust claim, we also must set aside the award of $354,357 in attorneys' fees. 15 U.S.C. § 15 (1970); see Byram Concretanks, Inc. v. Warren Concrete Products Co., 374 F.2d 649 (3d Cir. 1967).
V.
51
We next turn to plaintiffs' cross appeal urging as error the district court's ruling that any contract between plaintiffs and Ford was unenforceable under the Pennsylvania Statute of Frauds because the instrument was not signed by Ford.
52
After several weeks of negotiations, the parties met on December 18, 1969. Plaintiffs had been under the impression the meeting would culminate in a contract for their acquisition of Presidential Motors. Instead, during the meeting they signed an instrument in letter form stating, inter alia : "The undersigned partnership hereby offers to purchase" the assets described in an accompanying exhibit, and "If the offer is accepted by you, the partnership shall have the right to assign its interest therein to" a Dealer Development corporation. Appendix at 170ex. The jury concluded from this evidence that the parties had entered a contract on December 18th, answering the following interrogatory in the affirmative:
53
16. Do you find that plaintiffs have shown by a preponderance of the evidence that, at the December 18, 1969 meeting at the offices of Wolf, Block, Schorr and Solis-Cohen, plaintiffs and defendant entered into a contract for the acquisition of Presidential Motors and its operation by plaintiffs as franchised Ford dealers which was contingent only upon approval of the deferred rent terms by Leaseco, which approval was communicated to plaintiffs on December 29, 1969?
54
Although we think the sufficiency of the evidence supporting this finding is suspect, and the existence of a contract at best tenuous, we approach the question from the same perspective as the district court: Assuming there to be a contract, is it enforceable?
55
The district court concluded that the nature of the alleged contract involving a sale of goods for a purchase price of more than $500 and a lease in excess of three years in duration subjected it to two provisions of Pennsylvania's Statute of Frauds. Pa.Stat.Ann. tit. 12A, § 2-201 (1970); ibid., tit. 68, §§ 250.201-250.203 (1965). On appeal, Ford contends initially that the district court was correct. Alternatively, Ford urges that the alleged contract was one for the sale of a business which is a contract for the sale of "personal property", and that, in the absence of a signed written memorandum, the U.C.C. limits plaintiffs' recovery to $5,000. Ibid., tit. 12A, § 1-206 (1970); see Olympic Junior, Inc. v. David Crystal, Inc., 463 F.2d 1141, 1144-45 (3d Cir. 1972).
56
Whether the December 18th instrument was subject to the U.C.C. Statute of Frauds for the sale of goods, see n.5 supra, as the trial court concluded, depends on whether the subject matter of the sale falls within the contemplation of "goods" as that term is defined in U.C.C. § 2-105, Pa.Stat.Ann. tit. 12A, § 2-105 (1970).7 Accordingly, our analysis begins with an examination of the documents involved in the December 18th transaction.
57
Accompanying the letter signed by plaintiffs were several exhibits, the principal one of which was entitled, "Assets to Be Sold and Computation Price". The document listed: parts and accessories, miscellaneous inventories, work in process, equipment, leasehold improvements, service vehicles, new vehicles, demonstrators, used vehicles, daily rental vehicles, leased vehicles, notes receivables, vehicle receivables, parts and service receivables, contracts covering services, and used car warranties. The exhibit also established a formula for deferring rent on the premises owned by Ford's subsidiary, Leaseco, specifically set forth a method for computing the cost of inventories, and provided: "The purchase price to be paid by the Buyer for the assets to be sold shall be the aggregate sum determined in accordance with the computations and the inventories to be made as specified herein, less $65,000."8 Appendix at 186ex.
58
The parties agree that Pennsylvania law governs the contract issue. Although no Pennsylvania cases under U.C.C. § 2-105 treat the transfer of the assets of an automobile dealership, the Pennsylvania courts had held that the prior Sales Act governed the sale of a whole business. See, e. g., Siskin v. Cohen, 363 Pa. 580, 582, 70 A.2d 293, 294-95 (1950). In addition, other jurisdictions have held that motor vehicles are "goods". Park County Implement Co. v. Craig, 397 P.2d 800, 802 (Wyo.1964); English v. Ford, 17 Cal.App.3d 1038, 1046, 95 Cal.Rptr. 501, 505 (1971).
59
For their part, plaintiffs claim an analogue in Field v. Golden Triangle Broadcasting, Inc., 451 Pa. 410, 305 A.2d 689 (1973), cert. denied, 414 U.S. 1158, 94 S.Ct. 916, 39 L.Ed.2d 110 (1974). There, the Pennsylvania Supreme Court was concerned with an agreement for the sale of two radio stations, including FCC licenses and various physical assets. The seller sought to invoke that provision of the U.C.C. which allows a seller to demand adequate assurance of performance and, in the absence thereof, to suspend his performance. U.C.C. § 2-609, Pa.Stat.Ann. tit. 12A, § 2-609 (1970). The court stated: "We do not believe that Article 2 of the UCC applies to the instant contract. Rather than being an agreement for the sale of 'goods', this is a contract for the sale of the businesses of two radio stations, including their tangible and intangible assets, as a going concern." 451 Pa. at 422, 305 A.2d at 696.
60
We believe that Field offers plaintiffs little comfort for two reasons. First, the above quoted statement is not a strong holding, but mere dictum, for the court ultimately found:
61
(W)e have already indicated that the security which is provided for the entire contract is adequate. . . . Clearly, where adequate assurance of performance is already present, and there has been no change in circumstances to give rise to reasonable grounds for insecurity, a demand for additional security under section 2-609 is not justified.
62
Ibid. at 424, 305 A.2d at 696-97. Second, the factual complex in Field is distinct from that in the instant case. There, only $30,000 of the total purchase price of $650,000 or 4.6 per cent represented physical assets, including non-movables such as towers and fences. This is to be contrasted with the proposed sale of Presidential Motors in which, we agree with Ford's assessment, the value of movables to be sold was well in excess of three times the value of assets not properly classified as "goods".9
63
For the Statute of Frauds relating to the sale of goods to become applicable, we do not believe every asset subject to the sale must qualify under the "movable" test of U.C.C. § 2-105. See n.7 supra. Rather than a view of mechanical technicality or of mathematical nicety, a view of the reasonable totality of the circumstances should control the characterization of the contract for sale. If, viewed as a whole, it can be concluded that the essential bulk of the assets to be transferred qualify as "goods", then it is appropriate to consider the transaction a "contract for the sale of goods". To insist that all assets qualify as "goods" would substantially thwart the intentions of the drafters of the Uniform Commercial Code; it would sanction the absurd. The agreement of sale and purchase could cover physical, movable assets, thus qualifying as "goods", as well as other assets such as receivables from their particular lines not so qualifying. But to segregate "goods" assets from "non-goods" assets, and to insist that the Statute of Frauds apply only to a portion of the contract, would be to make the contract divisible and impossible of performance within the intention of the parties.
64
We believe it preferable to utilize a rule of reasonable characterization of the transaction as a whole. Applying this rule to the facts before us and carefully examining the list of assets to be sold, we note that title to no real estate was to pass in the transaction, nor was any value assigned for good will or the value of the business as a going concern. Accordingly, we have no hesitation in agreeing with the district court's applying U.C.C. § 2-201 and its finding that the alleged contract was unenforceable for want of the signature of Ford Motor Company.10
VI.
65
Finally, we reject cross-appellants' argument for a new trial limited to damages for the violation of the Dealers' Day in Court Act. We are persuaded that the question of damages was properly presented to and fully addressed by the jury.
66
This issue is controlled by the interrogatory submitted to the jury:
67
12. What figure, if any, do you find accurately represents the value of plaintiffs' interest in Chestnut Motors on the date plaintiffs were terminated as dealers?
68
A. None.
69
Plaintiffs had become Ford dealers at Chestnut Motors, Inc., in West Philadelphia early in 1969 under a "Dealer Development" arrangement in which they put up twenty per cent (20%), or $60,200, and Ford put up eighty per cent (80%) of the investment required to purchase the dealership from the previous dealer. Under the plan, plaintiffs were to buy out Ford's interest with dealership profits, if any. Fire destroyed part of the Chestnut Street facilities, which were leased from the previous dealer, only eight and one-half months after plaintiffs entered the venture. During the negotiations for the purchase of Presidential Motors subsequent to the fire, the parties agreed that plaintiffs would be credited with their interest in Chestnut "valued as of the date of the fire (and undiminished by losses suffered in the subsequent distress operations)." Appellant's Brief at 4; see n.2 supra. The figure assigned to this value, however, is not controlling on the instant question for two reasons. First, it was an item for negotiations preliminary to contract. Second, and more important, any damages to which plaintiffs might have been entitled under the Dealers' Day in Court Act would have to be assessed as of the date of the wrongful termination April 9, 1970.
70
Trial testimony revealed that the Chestnut Street operation was officially closed down as of March 1, 1970. E. g., Appendix at 371a. Also in evidence and available for the jury's consideration was a certified public accountant's revised and corrected Statement of Income (Loss) for Chestnut Motors during the four-month period ending April 30, 1970. This document showed net sales of $403,873 and a cost of sales of $421,468 or a gross sales loss of $17,595. Added to this were selling, general and administrative expenses of $172,125, or a total loss from operations of $189,720. Other expenses amounted to $3,236, resulting in a net loss for the period of $192,956. Appendix at 341ex. From this information, the jury could well have found that, by the time Ford terminated plaintiffs' franchise at Chestnut Motors on April 9, 1970, post-fire losses had reduced the value of plaintiffs' interest in the operation to zero. Under these circumstances, we cannot disturb the jury's determination that plaintiffs should recover no damages under the Dealers' Day in Court Act.11
VII.
71
We have considered carefully all other contentions of the cross-appellants and find them devoid of merit.
72
The judgment of the district court will be reversed with a direction to enter judgment in favor of appellant Ford Motor Company.
1
Every contract, combination in the form of trust or otherwise, or conspiracy, in restraint of trade or commerce among the several States, or with foreign nations, is declared to be illegal
15 U.S.C. § 1 (1970).
2
It is unclear whether the amount assigned to this value was approximately $85,000 or $100,000. Compare Appellant's Brief at 4 and Appellees' Brief at 6 with N.T. 475. The discrepancy in the figure, however, need not detain us as it is immaterial to our resolution of the issues
3
15 U.S.C. § 13 (1970):
(d) Payment for services or facilities for processing or sale.
It shall be unlawful for any person engaged in commerce to pay or contract for the payment of anything of value to or for the benefit of a customer of such person in the course of such commerce as compensation or in consideration for any services or facilities furnished by or through such customer in connection with the processing, handling, sale, or offering for sale of any products or commodities manufactured, sold, or offered for sale by such person, unless such payment or consideration is available on proportionally equal terms to all other customers competing in the distribution of such products or commodities.
(e) Furnishing services or facilities for processing, handling, etc.
It shall be unlawful for any person to discriminate in favor of one purchaser against another purchaser or purchasers of a commodity bought for resale, with or without processing, by contracting to furnish or furnishing, or by contributing to the furnishing of any services or facilities connected with the processing, handling, sale, or offering for sale of such commodity so purchased upon terms not accorded to all purchasers on proportionally equal terms.
4
15 U.S.C. § 1222 (1970). Authorization of suits against manufacturers; amount of recovery; defenses
An automobile dealer may bring suit against any automobile manufacturer engaged in commerce, in any district court of the United States in the district in which said manufacturer resides, or is found, or has an agent, without respect to the amount in controversy, and shall recover the damages by him sustained and the cost of suit by reason of the failure of said automobile manufacturer from and after August 8, 1956 to act in good faith in performing or complying with any of the terms or provisions of the franchise, or in terminating, canceling, or not renewing the franchise with said dealer: Provided, That in any such suit the manufacturer shall not be barred from asserting in defense of any such action the failure of the dealer to act in good faith.
5
Pa.Stat.Ann. tit. 12A, § 2-201 (1970). Formal Requirements; Statute of Frauds
(1) Except as otherwise provided in this section a contract for the sale of goods for the price of $500 or more is not enforceable by way of action or defense unless there is some writing sufficient to indicate that a contract for sale has been made between the parties and signed by the party against whom enforcement is sought or by his authorized agent or broker. A writing is not insufficient because it omits or incorrectly states a term agreed upon but the contract is not enforceable under this paragraph beyond the quantity of goods shown in such writing.
(2) Between merchants if within a reasonable time a writing in confirmation of the contract and sufficient against the sender is received and the party receiving it has reason to know its contents, it satisfies the requirements of subsection (1) against such party unless written notice of objection to its contents is given within ten days after it is received.
(3) A contract which does not satisfy the requirements of subsection (1) but which is valid in other respects is enforceable
(b) if the party against whom enforcement is sought admits in his pleading, testimony or otherwise in court that a contract for sale was made, but the contract is not enforceable under this provision beyond the quantity of goods admitted; or
(c) with respect to goods for which payment has been made and accepted or which have been received and accepted (Section 2-606).
6
The court directed a judgment in favor of the two other named defendants
5
See, e. g., Eastern States Lumber Assn. v. United States, 234 U.S. 600 (34 S.Ct. 951, 58 L.Ed. 1490); Binderup v. Pathe Exchange, Inc., 263 U.S. 291 (44 S.Ct. 96, 68 L.Ed. 308); Fashion Originators' Guild v. Federal Trade Comm'n, 312 U.S. 457 (61 S.Ct. 703, 85 L.Ed. 949); Kiefer-Stewart Co. v. Seagram & Sons, 340 U.S. 211, 214 (71 S.Ct. 259, 95 L.Ed. 219); Times-Picayune Publishing Co. v. United States, 345 U.S. 594, 625 (73 S.Ct. 872, 97 L.Ed. 1277); Northern Pacific R. Co. v. United States, 356 U.S. 1, 5 (78 S.Ct. 514, 2 L.Ed.2d 545)
7
Section 2-105 provides in part:
(1) "Goods" means all things (including specially manufactured goods) which are movable at the time of identification to the contract for sale other than the money in which the price is to be paid, investment securities (Article 8) and things in action. "Goods" also includes the unborn young of animals and growing crops and other identified things attached to realty as described in the section on goods to be severed from realty (Section 2-107).
(2) Goods must be both existing and identified before any interest in them can pass. Goods which are not both existing and identified are "future" goods. A purported present sale of future goods or of any interest therein operates as a contract to sell.
(3) There may be a sale of a part interest in existing identified goods.
The official comment to the section amplifies as follows:
1
Subsection (1) on "goods": The phraseology of the prior uniform statutory provision has been changed so that:
The definition of goods is based on the concept of movability and the term "chattels personal" is not used. It is not intended to deal with things which are not fairly identifiable as movables before the contract is performed.
The use of the word "fixtures" is avoided in view of the diversity of definitions of that term. This Article in including within its scope "things attached to realty" adds the further test that they must be capable of severance without material harm thereto. As between the parties any identified things which fall within that definition become "goods" upon the making of the contract for sale.
8
The Buyer was to receive the leasehold improvements valued at $35,000 at no additional charge. Appendix at 144ex, 173ex
9
The purchase price for Presidential was accounted for entirely by inventory and equipment (i. e., "goods") with the single exception of certain receivables . . . . These receivables had a net value of only $76,828 . . . . This amount for "non-goods" was much less than the value of the "goods" plaintiffs were purchasing. The net asset value of the inventory alone (excluding the new cars, trucks and demonstrator vehicles which would have been financed and thus not paid for by part of the purchase price) amounted to.$254,189 . . . . To this should be added the net asset value of the equipment plaintiffs offered to purchase which cannot be calculated precisely from Exhibit D-108 because the equipment value stated there included diagnostic equipment which plaintiffs were not purchasing
Ford's reply brief at 31 n.36 (record references omitted).
10
Because of the view we take, it is unnecessary to reach the applicability of U.C.C. § 1-206 or of the Statute of Frauds relating to leases of more than three years in duration
11
The jury, by its answers to interrogatories Nos. 7 and 11, found that Ford had not acted in good faith in terminating the Chestnut Motors dealership. Notwithstanding however, the jury found that plaintiffs suffered no damages. The district court thereupon properly molded the verdict to enter judgment for Ford. This judgment is consistent with the jury's responses. F.R.Civ.P. 49(a); see Halprin v. Mora, 231 F.2d 197 (3d Cir. 1956); Voelkel v. Bennet, 31 F.Supp. 506, 510 (E.D.Pa.), aff'd, 115 F.2d 102 (3d Cir. 1940)
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13 A.3d 1064 (2011)
STATE
v.
Kendall JOHNSON.
No. 2009-249-C.A.
Supreme Court of Rhode Island.
February 18, 2011.
Aaron L. Weisman, Department of Attorney General, for State.
Catherine Gibran, Office of the Public Defender, for Defendant.
Present: SUTTELL, C.J., GOLDBERG, FLAHERTY, ROBINSON, and INDEGLIA, JJ.
*1065 OPINION
Justice FLAHERTY, for the Court.
This case came before the Supreme Court on February 1, 2011, pursuant to an order directing the parties to appear and show cause why the issues raised in this appeal should not summarily be decided. After hearing the arguments of counsel and reviewing the memoranda submitted on behalf of the parties, we are satisfied that cause has not been shown. Accordingly, we shall decide the appeal at this time without further briefing or argument. For the reasons set forth in this opinion, we affirm the judgment of the Superior Court.
Facts and Travel
On August 26, 2008, Kendall Johnson was charged by information in the Superior Court of Providence County on four counts: (1) assault with a dangerous weapon (namely, a firearm) upon Donald Washington; (2) discharging a firearm while committing a crime of violence, causing injury to Mr. Washington; (3) assault with intent to rob Mr. Washington; and (4) carrying a pistol without a license.[1]
The prosecution alleged that Mr. Johnson and a companion, both of whom had been visiting Yolanda Reed in her apartment on the night of April 1, 2008, left when another friend of hers, Donald Washington, arrived. The men passed each other as they exited and entered the apartment, respectively. Later, while Mr. Washington and Ms. Reed were on the porch smoking, defendant and his companion walked by them twice. A short time after the pair passed a second time, a tall, thin man, identified unequivocally by Ms. Reed as "Kendall Johnson" or "Dang," came around the corner wearing a ski mask that covered much of his face.[2] He approached Mr. Washington and demanded that Mr. Washington remove the chain he was wearing around his neck and give it to him.[3] Ms. Reed, who thought the demand was a joke, simply laughed. The assailant wasn't joking, however, and he asked for the chain again. After Mr. Washington denied the assailant's demand a second time, the assailant pulled out a gun and pointed it at Mr. Washington's chest. When Mr. Washington again refused to relinquish his jewelry, the assailant fired the weapon, hitting Mr. Washington in the arm and head. Mr. Washington escaped into the apartment and the assailant fled.
At a jury trial, the defendant was identified as the gunman, and he was convicted on all four counts of the information and sentenced to an aggregate of thirty years in prison, with thirteen years to serve, five of which were to be non-parolable.[4] The defendant filed this timely appeal.
Standard of Review
This Court consistently has held that determining the admissibility of evidence *1066 is squarely within the purview of the trial justice. See State v. McManus, 990 A.2d 1229, 1234 (R.I.2010); State v. Reyes, 984 A.2d 606, 614-15 (R.I.2009); Ferrell v. Wall, 889 A.2d 177, 188 (R.I.2005). We will not disturb a trial justice's evidentiary ruling without first determining that the ruling constitutes a clear abuse of his or her discretion. McManus, 990 A.2d at 1234; Reyes, 984 A.2d at 614-15; Ferrell, 889 A.2d at 188.
Analysis
A
Not Hearsay
The sole issue raised by defendant in this appeal is that the trial justice committed reversible error when he admitted into evidence statements by Ms. Reed and Providence Police Department Det. A'vant about defendant's nickname. The defendant maintains that those statements were hearsay. Rule 801(c) of the Rhode Island Rules of Evidence defines hearsay as "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." However, a multitude of courts have held that evidence about a person's nickname, in this context, does not constitute hearsay because the use of such a name does not rise to the level of an assertion. See United States v. Allen, 960 F.2d 1055, 1059 (C.A.D.C.1992) ("One virtually always learns a name even one's own by being told what it is. * * * Nevertheless, evidence as to names is commonly regarded as either not hearsay because it is not introduced to prove the truth of the matter asserted, * * * or so imbued with reliability because of the name's common usage as to make any objection frivolous."); United States v. Weeks, 919 F.2d 248, 251 (5th Cir.1990) (holding that a prison warden's testimony that guards and inmates used a nickname to refer to the defendant was merely a report of "non-assertive oral conduct and was therefore not hearsay"); Commonwealth v. Gabbidon, 398 Mass. 1, 494 N.E.2d 1317, 1320 (1986) (determining that witness's testimony about observing others call the defendant several nicknames did not constitute hearsay because it "was not admitted for the truth of any fact asserted outside of court"). We are persuaded by the logic of these holdings and concur with it.
Both Ms. Reed and Det. A'vant testified that they knew defendant's nickname to be "Dang,"[5] and they knew that, in part, because defendant responded when others called him "Dang."[6] At trial, the prosecutor *1067 asserted that this testimony was not offered to show that the defendant's nickname was Dang, but only to establish the witnesses' credibility. In our opinion, the admission of this testimony does not constitute a clear abuse of the trial justice's discretion. See McManus, 990 A.2d at 1234; Reyes, 984 A.2d at 614-15; Ferrell, 889 A.2d at 188.
B
Merely Cumulative
Completely apart from any issue of Mr. Johnson's nickname, Ms. Reed unequivocally identified defendant as the assailant, both in her initial statement to police officers and again at trial. Ms. Reed had known Mr. Johnson for two to three years; he occasionally spent the night at her apartment; she knew what clothing he was wearing on the evening of the assault; and she was able to identify him for the police when they questioned her about the assault.[7] Moreover, at the trial, when describing the incident, Ms. Reed testified without objection:
"A I saw Dang come from back around the corner.
"Q You saw Dang come from around the corner?
"A Yes.
"Q Kendall Johnson?
"A Yes.
"* * *
"Q And where did he go?
"A To my porch.
"Q And what did he do when he got to the porch?
"A He stood there and axed [sic] Donald for his chain."
Detective A'Vant, who was also familiar with defendant by his given name, Kendall Johnson, testified as follows:
"Q [Y]ou indicated that you recognized the defendant, Kendall Johnson, correct?
"A Yes, that's correct.
"Q And, prior to April 1st of 2008, did you know Kendall Johnson?
"A Yes."
*1068 In light of Ms. Reed's positive identification of defendant as Mr. Washington's attacker, and Det. A'vant's clear identification of the defendant, there is an inescapable conclusion that, even if there were a question about the admissibility of the testimony as to the defendant's nickname, such testimony was merely cumulative and therefore not prejudicial to Mr. Johnson. See State v. Lynch, 854 A.2d 1022, 1032 (R.I.2004); State v. Micheli, 656 A.2d 980, 982 (R.I.1995); State v. Angell, 122 R.I. 160, 168, 405 A.2d 10, 14 (1979) ("[T]he admission of hearsay evidence is not prejudicial when the evidence is merely cumulative and when [the] defendant's guilt is sufficiently established by proper evidence.").
Conclusion
For the reasons set forth in this opinion, we affirm the judgment of the Superior Court, to which we remand the papers in this case.
NOTES
[1] A fifth count, firing a firearm in a compact area, was dismissed prior to trial.
[2] Ms. Reed testified that despite the mask, she recognized Mr. Johnson by his walk, his voice, his eyes, and his clothes (which were the same clothes he had been wearing in her apartment earlier).
[3] The chain in question was gold with a "Jesus head" that had cubic zirconium pieces on it.
[4] This case was tried twice. The first trial ended in a mistrial when the jury was unable to reach a verdict. Guilty verdicts were returned after the second trial. The five years of defendant's sentence that are non-parolable are for count 2, discharging a firearm while committing a crime of violence.
[5] The defendant asserts that his nickname is not "Dang" but rather, "Dangly." To us, this distinction seems wholly irrelevant to whether Mr. Johnson was, in fact, Mr. Washington's assailant because the witnesses identified him by sight. There is no dispute that Ms. Reed knew defendant very well.
[6] Reference to defendant by that moniker began early in this trial; indeed, the prosecutor referred to defendant as Dang in his opening statement to the jury. Specifically, defendant challenges the admission of the following testimony of Ms. Reed:
"Q Does [the defendant] have a nickname?
"A Yes, he does.
"Q What's his nickname?
"A Dang.
"Q Do you call him Dang?
"A Everybody does."
The defendant's attorney objected and the witness's comment that "[e]verybody does" was stricken from the record. The prosecutor then continued:
"Q Do you call him Dang?
"A Yes, I do.
"Q Does anyone else call him Dang?"
The defendant's attorney again objected, and again the objection was sustained by the court.
"Q Have you been in Mr. Johnson's presence when anyone calls him Dang?
"[Defendant's Attorney]: Objection.
"A Yes."
No ruling was made prior to the witness's response. The defendant's attorney made a motion to pass at sidebar. That motion was denied and the prosecutor repeated the question, receiving the same answer. He continued
"Q And what [was] his response?
"A What's up?"
Similarly, Det. A'Vant testified:
"Q And what did you know Kendall Johnson's nickname to be?
"A Dang. D-A-N-G, Dang.
"* * *
"Q Have you been in the presence of others when they've referred to the defendant as Dang?
"A Yes."
The defendant's attorney made an objection that was sustained by the court.
"Q Simply, have you been in the presence of others when they've referred to the defendant as Dang?
"[Defendant's Attorney]: I object to this.
"A Yes.
"THE COURT: I'll permit that.
"Q Did he respond?
"A Yes.
"Q Did he answer to the name Dang?
"A Yes."
[7] Providence police officer Francisco Guerra was among the first to arrive on the scene. He spoke with Yolanda Reed about the incident. At trial, he described their conversation as follows:
"Q * * * [W]hat did [Reed] convey to you?
"A She stated to us that, um, Kendall Johnson came around the corner between the passenger ways, between 64 and 65 June [St.], and approached her and the gentleman she was with outside the porch while they were smoking a cigarette."
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166 Ariz. 75 (1990)
800 P.2d 578
STATE of Arizona ex rel. DEPARTMENT OF HEALTH SERVICES, Plaintiff-Appellee,
v.
COCHISE COUNTY and its Board of Supervisors, Defendants-Appellants.
No. CV-89-0366-PR.
Supreme Court of Arizona, En Banc.
November 1, 1990.
*76 Robert K. Corbin, Atty. Gen. by David J. Dir, Asst. Atty. Gen., Phoenix, for plaintiff-appellee.
Alan K. Polley, Cochise Co. Atty. by Paul A. Smith, Deputy Co. Atty., Bisbee, for defendants-appellants.
OPINION
CORCORAN, Justice.
The state petitions for review of the court of appeals decision reversing the trial court's grant of summary judgment in favor of the state in its suit against Cochise County for reimbursement of hospital charges incurred by a county prisoner. The court of appeals held that the state must comply with the procedural requirements of the county claims statute, A.R.S. §§ 11-621, et seq., before bringing suit against the county. State ex rel. DHS v. Cochise County, 163 Ariz. 77, 786 P.2d 407 (App. 1989). The issue presented is whether the state is a "person" within the meaning of A.R.S. § 11-622 who must present a demand to the county before filing suit. We granted review pursuant to rule 23, Arizona Rules of Civil Appellate Procedure, and have jurisdiction pursuant to Ariz. Const. art. 6, § 5(3), and A.R.S. § 12-120.24.
Factual and Procedural Background
The Cochise County Superior Court ordered a county prisoner committed to the Arizona State Hospital for mental treatment during 1980 and 1981, pursuant to rule 11, Arizona Rules of Criminal Procedure. The prisoner ultimately was discharged from the hospital in March 1981. Six years later, on March 26, 1987, the state filed the complaint in this action, alleging that the county was liable for that prisoner's hospital bills, pursuant to A.R.S. § 13-3992.[1] The county moved to dismiss the claim because the state had not complied with the statutory requirement of presenting a demand to the county prior to filing suit. See A.R.S. § 11-622. The trial court denied the motion.
After the county filed its answer, the state moved for summary judgment. The county opposed the motion and cross-moved for summary judgment because of the state's failure to present a demand prior to filing suit.[2] The trial court granted the state's motion for summary judgment, and the county appealed.
Court of Appeals Opinion
A majority of the court of appeals panel reversed the trial court's grant of summary *77 judgment to the state, deciding that the state was a "person," within the meaning of A.R.S. § 11-622, subject to the notice of claim requirement. The majority rejected the state's argument that the definition of "person" set forth in A.R.S. § 1-215(24) excluded the state, in light of the purposes behind the claims statute. The majority further rejected the state's contention that the claims statute was similar to a statute of limitations, which cannot be invoked against the state, reasoning that because compliance with the claims statute is a substantive element of the claim, it acts to confer subject matter jurisdiction.
Judge Jacobson dissented, concluding that the definition of "person" in A.R.S. § 1-215(24) clearly excludes the state from the requirements of the county claims statute set forth in A.R.S. § 11-622. The dissent also pointed out the incongruous result of the majority's decision; although the state is required as a "person" to file a claim with the county within 6 months pursuant to the jurisdictional requirement of A.R.S. § 11-622, it is not required as a "claimant" to file a suit within the 6-month statute of limitations set forth in A.R.S. § 11-630, because of the provisions of A.R.S. § 12-510.[3] The dissent would have affirmed the trial court's summary judgment in the state's favor.
Analysis
The county claims statute requires a "demand duly presented" to the county for any claim in excess of $500. A.R.S. § 11-621. The demand is further described in A.R.S. § 11-622 as follows:
A person having a claim against a county shall, within six months after the last item of the account accrues, present to the board of supervisors of the county against which the demand is held, a written itemized claim executed by him under penalties of perjury, stating minutely what the claim is for, specifying each item, the date and amount thereof, and stating that the claim and each item thereof is justly due. The board shall not consider a claim unless the demand therefor is presented within such time.
(Emphasis added.) If the demand is rejected, the claimant may then sue the county within 6 months of the rejection. A.R.S. § 11-630. The county claims statute does not define "person" in the context of who must present a demand.
The state argues that the county claims statute does not apply to the state's claim because the state is not a "person" to whom the demand requirement of A.R.S. § 11-622 would apply according to the statutory definition of "person" in A.R.S. § 1-215(24), which provides:
In the statutes and laws of the state, unless the context otherwise requires:
....
"Person" includes a corporation, company, partnership, firm, association or society, as well as a natural person. When the word "person" is used to designate the party whose property may be the subject of a criminal or public offense, the term includes the United States, this state, or any territory, state or country, or any political subdivision of this state which may lawfully own any property, or a public or private corporation, or partnership or association. When the word "person" is used to designate the violator or offender of any law, it includes corporation, partnership or any association of persons.
(Emphasis added.)
The court of appeals recognized that this definition would not include the state as a "person," but held that this general provision "simply does not apply to the context of the county claims statute," in light of the legislative purposes of the claims statute. 163 Ariz. at 79, 786 P.2d at 409. *78 Those purposes include preventing county revenue from being consumed in litigation without an opportunity for the county to amicably adjust a claim, giving the county prompt notice of a claim to allow the board of supervisors to investigate while the evidence of the claim is still fresh, protecting the county against imposition, and providing a system that prevents unscrupulous public officials from depleting county funds. 163 Ariz. at 78, 786 P.2d at 408, citing Norcor v. Southern Arizona Int'l Livestock Ass'n, 122 Ariz. 542, 543, 596 P.2d 377, 378 (App. 1979).
By limiting its analysis to an examination of the legislative purposes of the claims statute, the court of appeals ignored a basic premise of common law that the state, as sovereign, cannot be statutorily limited in its power to collect money due the public purse other than by express inclusion in such a limitation or by necessary inference:
It is an ancient rule of statutory construction, . .. that the sovereign is not bound by a statute of general application, no matter how comprehensive the language, unless named expressly or included by necessary implication.
It is old and familiar law, and is applicable to the state as well as the crown, at common law, that where a statute is general, and any prerogative, right, title or interest is diverted or taken from the king, in such case, the king shall not be bound unless the statute is made by express words or necessary implication to extend to him.
Whiteacre, Sheriff v. Rector & Wife, 70 Va. (29 Gratt.) 714, 716 (1878); see 3 Sutherland, Statutory Construction § 62.01 (4th ed. 1974).
Commonwealth ex rel. Pross v. Board of Supervisors, 225 Va. 492, 303 S.E.2d 887, 889 (1983). In Pross, the Virginia Supreme Court encountered a county claims statute similar to the one here, which required a "person" to file a claim with a county within 6 months as a prerequisite to suit in circuit court. See Va.Code § 15.1-522, quoted at 303 S.E.2d at 889. The court held, based on the above tenet of statutory construction, that the state was not a "person" who the county claims statute could limit. Pross, 303 S.E.2d at 890.
The United States Supreme Court has also employed a similar rule of statutory construction when interpreting whether the United States is included as a "person" within federal legislation:
Since, in common usage, the term "person" does not include the sovereign, statutes employing the phrase are ordinarily construed to exclude it. But there is no hard and fast rule of exclusion. The purpose, the subject matter, the context, the legislative history, and the executive interpretation of the statute are aids to construction which may indicate an intent, by the use of the term, to bring state or nation within the scope of the law.
United States v. Cooper Corp., 312 U.S. 600, 604-05, 61 S.Ct. 742, 743-44, 85 L.Ed. 1071 (1941) (holding that the use of the words "any person" was insufficient, under "the ordinary dignities of speech," to authorize an action by the federal government for treble damages under the Sherman Act).
Employing the above standards, we are compelled to disagree with the court of appeals that the context of the county claims statute requires departure from the legislature's general definition of "person" within the meaning of its laws. The legislature unambiguously included the state as a "person" within certain limited situations in the general definition: the state is a "person" only when its property may be the subject of a criminal or public offense. See A.R.S. § 1-215(24). Inclusion of the state in the statutory definition of "person" in those enumerated situations adds to the state's rights, rather than detracts from them, as inclusion would do here if we construed the state to be a person in the context of the claims statute.
Additionally, excluding the state from the county claims statute does not impede the primary purpose of that statutory scheme to protect public funds from unnecessary expenditures; it merely shifts funds from one public entity to another, or from *79 one "pocket" of the sovereign to another. This court long ago recognized that limitations that exist to prevent unwarranted lawsuits by private individuals against governmental entities should not be applied to prevent suits brought by the sovereign:
The rights of the state are held by it in trust for the benefit of all of its citizens. They are enforced by actions of various natures, criminal and civil, but the purpose of their enforcement is always the common weal, and not the private benefit of any particular individual. The officers who are charged with the active duty of enforcing those rights have no personal profit to gain thereby, and therefore no inducement for the bringing of false and unwarranted actions. In other words, when an action is brought on behalf of the state, the almost conclusive presumption is that it is not, to the knowledge of those who bring it, illegal or inequitable, for it is not to be thought that the state will harass its citizens by unjust actions purposely delayed until long after the evidence which might show that the action was not based on right had disappeared. The fear of such actions, perhaps well founded when the dispute is one between private parties, is not reasonable where the state is the plaintiff.
City of Bisbee, 52 Ariz. at 9, 78 P.2d at 985. See also 3 N. Singer, Sutherland Statutory Construction § 62.01 at 111 (4th ed. 1986) ("the rule exempting the sovereign from the operation of the general provisions of a statute is premised on a policy of preserving for the public the efficient, unimpaired functioning of government"). Thus, unlike the court of appeals, we find that excluding the state from the county claims statute does not defeat the legislative purpose of that statute set forth above. Furthermore, the county treasury is protected in this situation because the provisions of A.R.S. § 13-3992 permit the county to obtain reimbursement from several other sources of hospital charges it pays to the state. Finally, we note that the county claims statute has been in effect, in a form substantially similar to its current one, since 1890. See Norcor, 122 Ariz. at 543, 596 P.2d at 378; Yavapai County v. O'Neill, 3 Ariz. 363, 29 P. 430 (1892) (filing a claim with the county within 6 months of accrual is a condition precedent to suit). Because this is the first case this court has seen attempting to subject the state to the time of claim requirements of this 100-year-old statute, we can only assume that "executive interpretation" has not favored the county's present position in prior similar situations.
The court of appeals also reasoned, "The county claims statute appears to be one of several contexts in which the legislature intended that the state be a `person' within the meaning of a statute even absent explicit language to that effect." 163 Ariz. at 79, 786 P.2d at 409. As examples of those other contexts, the court of appeals pointed out that cities are considered "persons" for venue purposes under A.R.S. § 12-401, that the state may convey or acquire property despite the limited statutory definitions of "grantee" and "grantor" in A.R.S. §§ 1-215(8), (9), as "persons," and that the state is also a "person" to whom notice is imputed by the recording of a land interest under A.R.S. § 33-416. We agree with the state that these other contexts are distinguishable, because inclusion of the state as a "person" in these contexts does not divest it of a property right or a statutory entitlement to collect public funds as it would in this case, but rather enlarges its rights in those contexts. The rule of strict construction of a statute in derogation of sovereignty should not be applied to those situations where the inclusion of the state within the meaning of the statute is advantageous to the state's interests. See Sutherland, § 62.02 at 123.
By reading the language of the county claims statute in common usage and ordinary meaning, see A.R.S. § 1-213, after considering the tenets of statutory construction that must apply when the right of a sovereign to collect public funds is at risk, after applying the unambiguous general definition of "person" that the legislature has applied to its laws, see A.R.S. § 1-215(24), and after examining the purposes of the limitations on claims against counties, we can only conclude that the legislature did not mean to include the *80 state within the restrictions of the county claims statute. Furthermore, "it is not our function to engraft on a statute additions which we think the legislature logically might or should have made." United States v. Cooper Corp., 61 S.Ct. at 744. We therefore hold that the state is not included within the meaning of the word "person" under A.R.S. § 11-622, who is required to file a demand with the county before bringing its claim to court. If the legislature meant to preclude the state from collecting a statutory debt from a county by enacting the county claims statute, it should have specifically included the state as an entity bound by the requirements of that statute. Because the legislature did not expressly include the state, and because we find no necessary implication to divest the state of its statutory right to collect these funds under A.R.S. § 13-3992, we construe the county claims statute to exclude the state from its restrictions.
Because we resolve this case on the conclusion that the county claims statute does not apply to the state, we need not address whether compliance with that statute is a jurisdictional prerequisite in the context of this case.
Disposition
The trial court's summary judgment in favor of the state[4] is affirmed, and the opinion of the court of appeals is vacated.
GORDON, C.J., FELDMAN, V.C.J., and MOELLER, J., concur. CAMERON, Justice, dissenting:
I dissent for two reasons. First, I believe that under the statute involved that the state is a person and must comply with the county claims statute.
As the majority cites:
Since, in common usage, the term "person" does not include the sovereign, statutes employing the phrase are ordinarily construed to exclude it. But there is no hard and fast rule of exclusion. The purpose, the subject matter, the context, the legislative history, and the executive interpretation of the statute are aids to construction which may indicate an intent, by the use of the term, to bring state or nation within the scope of the law.
United States v. Cooper Corp., 312 U.S. 600, 604-05, 61 S.Ct. 742, 743-44, 85 L.Ed. 1071 (1941) (holding that the use of the words "any person" was insufficient, under "the ordinary dignities of speech" to authorize an action by the federal government for treble damages under the Sherman Act).
A.R.S. § 11-622 requires a person who has a claim against the county to present the claim within 6 months after the last charge accrues. The board of supervisors is not to consider any claims unless this procedure is followed. As the majority pointed out, A.R.S. § 11-622 has been in effect for 100 years. Cases addressing this statute all have a common theme: claims against the county must be submitted according to the statute. See, e.g., Cochise County v. Wilcox, 14 Ariz. 234, 236-37, 127 P. 758, 760-61 (1912); Physical Therapy Assoc. Inc. v. Pinal County, 154 Ariz. 405, 406-07, 743 P.2d 1, 2-3 (Ct.App. 1987). To date, there have been no exceptions. Based on the long standing history of A.R.S. § 11-622, I believe that the state is a person within the statutory framework. Because the state is a person, it should have complied with the statute by filing its demand 6 months after the last charge accrued.
Second, I believe the doctrine of laches applies. The state sought restitution for the cost of hospitalizing a county prisoner for psychiatric care. The state sued the county 6 years after the prisoner was discharged and the last charge accrued. Mere lapse of time, however, will not bar a claim *81 for restitution. Cauble v. Osselaer, 150 Ariz. 256, 259, 722 P.2d 983, 986 (Ct.App. 1986). Restitution will be denied due to laches only if the complainant failed to pursue a remedy without adequate reason, causing the other party to suffer a loss they would not otherwise have suffered if the action had been brought with promptness. Restatement of Restitution § 148 (1937).
There are two elements to the defense of laches. First, one party must lack diligence in pursuing a claim. Second, the first party's lack of diligence must cause an injury or hardship to a second party. Arizona Laborers, Teamsters, etc. v. Hanlin, 148 Ariz. 23, 29, 712 P.2d 936, 942 (Ct.App. 1985); Western Cas. & Surety Co. v. Evans, 130 Ariz. 333, 337, 636 P.2d 111, 115 (Ct.App. 1981). Here, the state waited 6 years before suing the county for the hospitalization charges. Restatement of Restitution § 148 comment (b) lists specific reasons for delay that may excuse the complainant:
The fact that the respondent stood in a fiduciary or confidential relationship to the complainant who, because of that, hesitated to begin proceedings; the fact that the respondent was in a superior economic position to the complainant as where he was a complainant's creditor or employer; the fact that the complainant could not secure proper advice or that he was ignorant and did not understand his rights; the fact that the respondent fraudulently concealed facts; the fact that the conduct of the respondent delayed proceedings, as where he could not be located, or where he sought to prevent action or caused delay by promises of satisfaction; or the fact that evidence was not available.
Restatement of Restitution § 148 at 590-91.
The state offers as its only excuse for not filing a claim under the guidelines of A.R.S. § 11-622, that it is not a "person" under the statute. Because I believe that the state is a person for purposes of A.R.S. § 11-622, I do not believe a valid excuse for the 6-year delay existed. Moreover, the state does not meet any of the specific excuses provided by the Restatement. The majority assumes that because this is the first case attempting to subject the state to the 6-month time requirement, the county's present position has not been favored. The statute's history, however, indicates the contrary. This statute has been in effect for 100 years. A more valid assumption, therefore, is that the state has, with the exception of the present case, complied with the statute's time of claim requirement.
The second element to the laches defense requires an injury or hardship to the county due to the state's lack of diligence. Both the court of appeals and the majority of this court discuss the purposes of A.R.S. § 11-622 as identified in Norcor of America v. Southern Ariz. Int'l Livestock Ass'n, 122 Ariz. 542, 543, 596 P.2d 377, 378 (Ct.App. 1979). The purposes identified are: (a) to prevent county revenue from being consumed in litigation, the county must first have an opportunity to discharge or adjust the obligation before facing the costs of a lawsuit; (b) to give the county prompt notice of any claim allowing the board of supervisors to investigate claims while evidence is still fresh and witnesses are available; and (c) to prevent public officials from depleting the public treasury. Id. at 543, 596 P.2d at 378.
Here, lengthy litigation, spanning three and one-half years, is unnecessarily consuming the county's revenue. The initial action occurred in 1980-81, and the state did not file suit until 6 years later. The evidence became stale during this time. Witnesses are no longer available to aid the board of supervisors in its investigation of the state's claim. The legislature enacted the statute to prevent exactly these hardships. Id. A.R.S. § 11-622 requires presentment of a claim within 6 months after the last chargeable items have accrued, in order to effectuate these purposes. To date, anyone having a claim against the county must follow the presentment requirement. Because of the state's unreasonable lack of diligence and resulting hardship to the county, laches should bar the state's claim.
Moreover, in Maricopa City v. Cities & Towns of Avondale, Etc., 12 Ariz. App. 109, 113, 467 P.2d 949, 953 (1970), the court *82 reasoned that "where two [public bodies] are the interested parties there is no good reason why public policy should require that the people of one [public body] be penalized for the laches of the ... other. The law should, as far as possible, protect both, without preference to either." Maricopa, 12 Ariz. App. at 113, 467 P.2d at 953 (citing State ex rel. O'Connor v. Clay County, 226 Iowa 885, 894, 285 N.W. 229, 235 (1939)). Here, the state apparently has complied with the county claims statute in the past but, due to some error, it did not file this particular claim until 6 years after all charges accrued. We should not penalize the county for the laches of the state. Maricopa 12 Ariz. App. at 113, 467 P.2d at 953.
The county has met both of the elements necessary for the defense of laches. Also, considering that as between two public bodies the reasons for denying laches dissipates, I believe laches bars the state's claim.
NOTES
[1] A.R.S. § 13-3992 provides as follows:
When a defendant in a criminal action, any time prior to pronouncement of sentence, is committed to the state hospital, the expenses of transporting him to and from the hospital and of maintaining him while confined therein shall be a charge against the county in which the indictment was found or information filed, but the county may recover such expenses from the estate of the defendant or from a relative, town, city or county required by law to provide for and maintain the defendant.
[2] Although the state alleged in its complaint that it had sent timely billings for the hospital charges to the county, the county's finance director submitted an affidavit stating that those billings were never received. The state has not disputed this fact on review, and has not argued that it presented a demand in compliance with A.R.S. § 11-622.
[3] A.R.S. § 12-510 provides: "Except as provided in § 12-529, the state shall not be barred by the limitations of actions prescribed in this chapter." We note that the dissent did not address the fact that this section limits its provisions to statutes of limitation in "this chapter," referring to chapter 5, title 12, while the cited statute of limitations is set forth in title 11. However, A.R.S. § 12-510 is merely a partial codification of the doctrine of nullum tempus occurit regi, which prevents the state from being limited by such provisions. See City of Bisbee v. Cochise County, 52 Ariz. 1, 8, 78 P.2d 982, 985 (1938).
[4] We note that the county also argued in the court of appeals that the trial court's award of attorneys' fees to the state was not statutorily authorized. In its answering brief, the state waived its award of attorneys' fees and the court of appeals thus reversed that portion of the judgment awarding the state its attorneys' fees. The state did not raise the reversal of its award of attorneys' fees in its petition for review. We therefore do not interfere with the court of appeals' reversal of the attorneys' fees award. The state did not request an award of fees on appeal or on this review.
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2019 IL App (2d) 170149
No. 2-17-0149
Opinion filed September 30, 2019
______________________________________________________________________________
IN THE
APPELLATE COURT OF ILLINOIS
SECOND DISTRICT
______________________________________________________________________________
THE PEOPLE OF THE STATE ) Appeal from the Circuit Court
OF ILLINOIS, ) of Kane County.
)
Plaintiff-Appellee, )
)
v. ) No. 12-CF-162
)
LEAMON R. CAVITT JR., ) Honorable
) John A. Barsanti,
Defendant-Appellant. ) Judge, Presiding.
______________________________________________________________________________
JUSTICE JORGENSEN delivered the judgment of the court, with opinion.
Justices McLaren and Burke concurred in the judgment and opinion.
OPINION
¶1 After a jury trial in which he proceeded pro se, defendant, Leamon R. Cavitt Jr., was
convicted of possession with intent to deliver over 900 grams of cocaine (720 ILCS
570/401(a)(2)(D) (West 2012)), aggravated battery of a peace officer (720 ILCS 5/12-3.05(d)(4),
(f)(1) (West 2012)), and aggravated fleeing or attempting to elude a peace officer (625 ILCS
5/11-204.1(a)(2) (West 2012)). He was sentenced to consecutive prison terms of 30 years, 3
years, and 1 year, respectively. Defendant, now represented by counsel, appeals, arguing that (1)
the trial court committed reversible error when, in response to the jury’s request during
deliberations to view a surveillance-video exhibit, the court restricted the jury’s access to the
video, allowing only a single silent viewing in open court, and expressly discouraged the jury’s
2019 IL App (2d) 170149
reliance on the video; and (2) his conviction of aggravated fleeing or attempting to elude a peace
officer should be reversed, because the State failed to prove that the officers involved wore
“police uniform[s]” (id. § 11-204(a), 11-204.1(a)). We reject defendant’s second argument, but
we conclude that the court committed error in denying the jury’s request for the video and
conducting the viewing of it. Accordingly, we reverse and remand for a new trial.
¶2 I. BACKGROUND
¶3 In January 2012, police officers from Carpentersville and from other law enforcement
agencies arranged for an undercover drug operation—specifically, a reverse-buy bust—wherein
officers posed as drug dealers, selling one kilogram of cocaine for $29,000 to defendant and
Sentoro Dunn. Several officers were assigned to surveillance and security and others were
assigned to arrest teams. Streamwood police detective Juan Carrillo and Addison police
detective Jose Gonzalez (Gonzalez) posed as the dealers. The operation occurred on January 17,
2012, at a McDonald’s restaurant at 1660 Ravine Lane in Carpentersville and resulted in
defendant’s and Dunn’s arrests.
¶4 A. Trial
¶5 Trial commenced on March 14, 2016. Under the State’s theory of the case, Carrillo
contacted Dunn, who acted as a middleman or broker for defendant, and they negotiated the
cocaine’s price and quantity and agreed to meet to execute the transaction. During opening
statements, the State informed the jury that the surveillance video of the transaction came from
the McDonald’s security camera and that it was “grainy and spotty video.” “And as you will see,
the frame rate is a little weak and it only shows one particular vantage point.” (The events
occurred in the restaurant’s west parking lot.) Police testimony, according to the State, would
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2019 IL App (2d) 170149
provide insight from other vantage points. The State then played for the jury a 16-minute, edited
version of the video.
¶6 1. Officer James Schuldt
¶7 Carpentersville police officer James Schuldt, who originated and oversaw the operation,
testified that he was part of the primary arrest team, which also included Carpentersville officers
Kevin Stankowitz, Chris Bognetti, and Joseph Murphy. The primary arrest vehicle they used
was a black van with no police markings. The van had curtains over the windows, so that no one
could see in but the officers could see out. The four primary arrest officers, according to
Schuldt, wore jeans, sweatshirts, and black tactical vests with police markings on the front and
back. He explained that the front markings said “police” in white lettering on the upper left chest
area and the back said “police” in white lettering “across the entire upper back.” The secondary
arrest team wore identical clothing. Part of Schuldt’s operation plan, which he communicated to
all officers, was that the officers, excluding the undercover officers and the two surveillance
officers inside the McDonald’s, wear clearly visible markings on their clothing so that
“everybody knows that we are the police out there.”
¶8 The team parked a sedan one spot south of the black van as a filler car, so that no
civilians would be close to the black van. Schuldt explained that there were two officers just
west of Ravine Road, facing east toward the restaurant. Further, the secondary arrest team was
in a blue minivan on the northeast side of the restaurant, out of view of the west side where the
black van was parked.
¶9 The undercover vehicle—a Buick—arrived at the McDonald’s and parked two spots
south of the black van and next to the sedan. Defendant’s vehicle was a tan Cadillac, and it
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2019 IL App (2d) 170149
arrived and parked two spots south of the Buick. A civilian vehicle was between the Cadillac
and the Buick.
¶ 10 The operation proceeded. Schuldt testified that, after Carrillo and Gonzalez walked
inside the McDonald’s, the Cadillac arrived. Schuldt observed two individuals in the vehicle,
defendant (the driver) and Dunn (the front-seat passenger). Dunn entered the restaurant and later
exited alone and walked to the passenger side of the Cadillac. Schuldt could not see what Dunn
and defendant were doing at the car. At some point, while holding a white plastic shopping bag,
Dunn walked toward the west side of the restaurant to where Carrillo and Gonzalez were
standing. The three men walked to the Buick and stood near the trunk. Dunn then got into the
passenger side of the Buick, and Carrillo got into the driver’s side. Gonzalez stood near the
front-passenger quarter-panel. When Schuldt observed the arrest signal, he and the primary
arrest team exited the black van and proceeded to the passenger side of the Buick to take Dunn
into custody. Stankowitz, with his gun drawn, and Schuldt opened the front passenger door and
Schuldt announced “Police, don’t move” and he and his team announced “Police. Police. You
are under arrest. Police. You are under arrest.” He reached in, grabbed Dunn, removed him
from the vehicle, and arrested him, walking him to the rear of the vehicle and, with Bognetti’s
assistance, placing him in handcuffs.
¶ 11 Schuldt testified that he observed several bundles of money throughout the front of the
Buick, including on the driver’s seat and the passenger floorboard, and that he observed one
kilogram of cocaine in the center console area.
¶ 12 Simultaneous to Dunn’s arrest, the blue minivan pulled up behind the Cadillac and
attempted to box it in so the officers could arrest defendant. Schuldt saw someone start to get
out of the Cadillac and observed the backup lights illuminate. He also saw the minivan’s
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2019 IL App (2d) 170149
passenger-side sliding door open, on the side facing the Cadillac. The Cadillac backed up at “a
pretty high rate of speed for that short of [a] distance” and struck the minivan as Streamwood
corporal Miguel Cabrales began to step out of the minivan. Schuldt heard a lot of shouting and
several pops, which he later learned were gunshots. (The minivan was parked behind the
Cadillac for less than five seconds before it was struck.) He also observed Gonzalez at the rear
passenger side of the Cadillac. The Cadillac then accelerated forward and went down an
embankment onto Ravine Road and traveled south, away from the restaurant.
¶ 13 Schuldt retrieved $30,000 in cash from throughout the front of the Buick.
¶ 14 2. Detective Juan Carrillo
¶ 15 Carrillo testified that, on January 16, 2012, he was asked to participate in a reverse-buy-
bust operation with the Carpentersville Police Department. As part of the operation, Carrillo
called Dunn that evening. Carrillo stated that he had heard that Dunn was looking for something,
and Dunn responded that he had been waiting for the call and was looking for some “groceries,”
which Carrillo took to mean drugs. Carrillo responded that he had some, for $25,000 or $30,000
(for one kilogram, or about 36 ounces, of cocaine), and Dunn stated that he needed “the good
stuff” for his cousin in St. Louis, who would “take the groceries to the kitchen,” which Carrillo
understood to mean that Dunn’s cousin would cook the powder cocaine to make crack cocaine.
After several more calls, Carrillo and Dunn agreed that they would meet the following day and
that Dunn would buy one kilogram of cocaine for $29,000. Dunn stated that his cousin would
bring the “papers,” i.e., money.
¶ 16 On January 17, 2012, Dunn told Carrillo over the phone that his cousin had the money
and would buy one kilogram of cocaine. Dunn, who was traveling from Rockford, would pick
up his cousin from a hotel, and they would meet Carrillo at a McDonald’s in Carpentersville.
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2019 IL App (2d) 170149
During the officers’ briefing that day, they decided to include Gonzalez as another undercover
officer, because the operation involved large amounts of narcotics and currency and unknown
individuals with unknown criminal histories.
¶ 17 Gonzalez drove with Carrillo in the Buick to the McDonald’s and parked on the west side
of the building. The rest of the police team was already there, and the kilogram of cocaine was
in the trunk of the Buick. Carrillo and Gonzalez entered the restaurant. Also inside, serving as
surveillance and rescue, were Addison detectives Roy Selvik and Greg Garofalo. They were in
street clothes and had no markings to indicate that they were police officers.
¶ 18 Carrillo and Gonzalez ordered food and sat at a table on the west side of the restaurant,
with a view of the parking lot where they had parked. Dunn called Carrillo to finalize directions
and inform him that he was traveling in the Cadillac. The Cadillac drove into the parking lot,
drove past the black van, the sedan, and the Buick, and parked two spots south of the Buick.
From the restaurant, Carrillo could see Dunn and defendant in the Cadillac. Dunn exited, walked
into the McDonald’s, exchanged greetings with Carrillo, and went to order food. Also, at one
point, Dunn showed Carrillo and Gonzalez his identification. Dunn told the officers that he had
the money, and they agreed to conduct the transaction.
¶ 19 Defendant exited the Cadillac, walked toward the trunk, and retrieved something that he
took back to the driver’s side of the vehicle. Defendant wore a brown baseball cap, a brown
shirt, and brown pants.
¶ 20 Carrillo, Gonzalez, and Dunn spent about five minutes in the restaurant and then walked
out. The officers remained by the door of the restaurant, and, after Carrillo asked to see the
money, Dunn went to retrieve it. He retrieved a white plastic grocery bag from the Cadillac,
walked back toward the officers, and opened the bag, which contained bundles of money.
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2019 IL App (2d) 170149
¶ 21 Carrillo suggested that they complete the deal in the Buick. Dunn agreed, and they
walked to the car. Dunn sat in the front passenger seat, and Gonzalez stood by the front
passenger area. Carrillo retrieved the cocaine from the trunk and walked to the front driver’s
side. When he opened the door, he saw bundles of money on the seat, some loose and some
banded together. He pushed aside the money, sat in the driver’s seat, and gave Dunn the
cocaine. Dunn put it by his feet. Dunn told Carrillo that there was $30,000 total but that they
had to remove $1000 as a finder’s fee for him, because he had brokered the transaction.
¶ 22 At this point, Carrillo saw the arrest team approach and heard them yelling, “Police,
hands, police, hands.” He exited the Buick, and the arrest team arrested Dunn. Carrillo then
heard others yelling, “Get the Cadillac, get the Cadillac.” Carrillo walked toward the driver’s-
side door of the Cadillac. Gonzalez then approached, as did the blue minivan. Carrillo identified
defendant as the sole occupant of the Cadillac.
¶ 23 Carrillo announced to defendant three or four times, “Police, get out of the car, police, get
out of the car.” Defendant made eye contact with Carrillo and then looked down and put the
Cadillac in gear. Carrillo yelled, “Put the car in park.” His gun was drawn, at his chest.
Defendant looked over his right shoulder. Carrillo heard the engine rev and the tires spinning.
The Cadillac moved in reverse. The blue minivan and Gonzalez were near the rear passenger
area. Carrillo moved back along with the Cadillac. Carrillo twice shot his gun in defendant’s
direction; he did not know if the bullets struck anything. The Cadillac’s rear driver’s-side corner
hit the blue minivan at the front passenger door area, bounced forward, and then again hit the
minivan. Carrillo heard gunshots. The Cadillac moved forward at a high rate of speed and drove
over a curb and some bushes, down an embankment, and south on Ravine Lane. Carrillo saw
that the rear window was broken.
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2019 IL App (2d) 170149
¶ 24 Carrillo wore a black baseball cap, a tan canvas coat, a red shirt, blue jeans, and work
boots. His clothing had no markings that identified him as a police officer.
¶ 25 Carrillo testified that the surveillance video does not depict the events in real time. The
images are “choppy and it’s frame by frame.”
¶ 26 On cross-examination, Carrillo stated that Dunn never told him his cousin’s name.
However, because Dunn said that he would be with his cousin, Carrillo believed that defendant
was the cousin.
¶ 27 At this point in the proceedings, defendant played portions of the surveillance video for
the jury. Carrillo identified himself, Gonzalez, and Dunn in the video. At time stamp 15:25,
Carrillo was at the driver’s side of the Cadillac. At 15:27, Carrillo was moving back along with
the Cadillac, and at 15:29, the Cadillac struck the blue minivan. (Also at this time, Stankowitz
stood in front of the Cadillac.) At 15:31, the Cadillac moved forward. At 14:40, Gonzalez
walked toward the front of the Cadillac; at 15:23, he was near the black van; at 15:25, he was
near the Buick; and, at 15:29, he was near the rear of the Cadillac.
¶ 28 Carrillo testified that he saw Gonzalez at the corner of the Cadillac before it started
moving. He could not recall seeing Cabrales.
¶ 29 On redirect examination, Carrillo testified that, because snow or ice obstructed the video,
it does not show him discharging his weapon or the Cadillac striking the blue minivan. Carrillo
estimated that he stood next to the Cadillac for only a few seconds.
¶ 30 3. Officer Kevin Stankowitz
¶ 31 Stankowitz testified that he was on the primary arrest team and was supposed to “arrest”
one of the undercover officers and then help out where needed.
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2019 IL App (2d) 170149
¶ 32 Stankowitz testified that the Buick was two parking spaces south of the black van, with
the sedan in between. When Stankowitz saw one of the undercover officers give the
predetermined arrest signal, Stankowitz alerted the rest of the team, exited the black van, and
waited at the rear of the van for the others to exit. Then, Stankowitz went to the front passenger-
side window of the Buick. His assignment was to get Dunn’s attention and open the door for the
officers behind him.
¶ 33 Stankowitz knocked loudly on the Buick’s window and gave loud verbal commands to
Dunn: “police department” and “let me see your hands.” He observed that Dunn was holding
money and had a bag of money on his lap. Dunn attempted to conceal the money by putting it
back in the bag. Stankowitz opened the door, and two other officers placed Dunn under arrest.
Next, Stankowitz “arrested” Gonzalez, to “play off the scenario as if they were not free to leave
also.”
¶ 34 Stankowitz wore a sweater, a black tactical vest with police markings on the front and the
back, and a badge around his neck. He also had a firearm on his right hip. Schuldt, Bognetti,
and Murphy also wore black vests with the same police markings.
¶ 35 After he “arrested” Gonzalez, Stankowitz turned his attention to the Cadillac. He saw
Carrillo standing at the driver’s side of the Cadillac, giving verbal commands and pointing his
weapon toward the vehicle. Stankowitz walked toward the Cadillac, and Carrillo continued to
give commands. The Cadillac started backing up when Stankowitz was near the front of the
vehicle next to the Cadillac. The blue minivan was about three to four feet behind the Cadillac at
this point and Stankowitz saw Cabrales exiting the minivan at the side passenger door closer to
the Cadillac. The Cadillac backed into the minivan in a “[v]ery quick manner.” Stankowitz
moved to the front passenger side of the Cadillac. He placed his hands on the hood as it came to
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2019 IL App (2d) 170149
a stop, looked at defendant, who looked back at him, and yelled “police” and told him to stop the
car. The Cadillac moved forward, and Stankowitz quickly had to move out of the way to avoid
being struck. Cabrales, who was near the rear of the Cadillac, discharged his weapon.
Stankowitz never drew his weapon, because there was a crossfire issue.
¶ 36 The Cadillac quickly drove through the parking lot and down an embankment. Its rear
window shattered from being shot.
¶ 37 Stankowitz testified that the surveillance video did not show everything as it occurred
from his perspective. It was “very choppy” and did not show, for example, when he “arrested”
Gonzalez.
¶ 38 On cross-examination, Stankowitz testified that Cabrales fired his weapon as the Cadillac
started moving forward. Stankowitz did not see Cabrales get struck by the Cadillac.
¶ 39 At this point, defendant played portions of the video. Stankowitz identified himself, at
time stamp 15:28, in front of the sedan. He stated that, at 15:29 or 15:30, he appeared to be
putting his hands on the Cadillac’s hood but could not be certain, due to the video’s lack of
clarity and “it not playing all the way through.”
¶ 40 4. Officer Joseph Murphy
¶ 41 Murphy testified that he was assigned to the primary arrest team. From his position in
the black van, Murphy could not see outside. After the arrest signal was given, Murphy alerted
everyone on the police radio and exited the van on the north side, out of the Cadillac’s view.
¶ 42 After Dunn was arrested, Murphy ran to the rear of the Cadillac, heard the engine rev,
and saw the vehicle start to move in reverse. To avoid being struck, Murphy moved to the
driver’s side, toward the trunk. He saw the Cadillac strike the blue minivan. Officers were
shouting orders. The engine started to rev again, and Murphy heard gunshots. The Cadillac
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2019 IL App (2d) 170149
drove out of the lot, went down an embankment, and turned left onto southbound Ravine Lane.
The tires were squealing, and the engine was very loud. It was traveling fast.
¶ 43 Murphy testified that the weather conditions were icy and snowy. There was a lot of
snow on the ground. Murphy wore blue jeans, a sweatshirt, and an outer vest carrier that had
police lettering on the front and back. He also wore a badge on his belt clip and held a firearm.
¶ 44 On cross-examination, Murphy testified that he saw Cabrales shooting. He did not see
the Cadillac strike Cabrales. Murphy saw the Cadillac strike the blue minivan twice and heard
gunshots before and after it struck the minivan the second time.
¶ 45 5. Sergeant Paul Murray
¶ 46 Murray was part of the secondary arrest team, along with Carpentersville sergeant
Ostrem and Cabrales. Initially, the blue minivan was parked on the northeast side of the
McDonald’s lot, to avoid being seen by Dunn and defendant. After the arrest signal was given,
the minivan moved and parked behind the Cadillac. As it came to a stop, Cabrales started
exiting the van via the passenger-side sliding door. Murray, who sat in the front passenger seat,
had his hand on the door handle, about to exit, when he saw the Cadillac’s backup lights come on
and heard the engine rev. The Cadillac struck the minivan, knocked Murray from his seat
“almost” to the driver’s-side floor “tub area.” He felt two additional but smaller impacts as he
tried to get back up to exit the minivan. Murray then heard several muffled pop sounds, which
he later learned were gunshots. He ducked and tried three times to open the door. He finally
exited the minivan, because the Cadillac had moved away. He unholstered his weapon.
Cabrales stood to his right and fired once. The Cadillac drove away from the area.
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2019 IL App (2d) 170149
¶ 47 Murray walked over a berm to ensure that the Cadillac was gone. He returned to the
scene and determined that three officers had fired their weapons. He learned that Cabrales was
struck by the Cadillac and needed medical attention.
¶ 48 Cabrales wore a raid jacket, which is a windbreaker with black police markings on the
front and back. He also wore a vest with police markings in a different color on the front; the
windbreaker covered the police markings on the back of the vest. Murray himself wore a light
tan shirt with no police markings and a vest with police markings in gold.
¶ 49 During cross-examination, defendant played the surveillance video and had Murray
describe certain actions depicted therein. At time stamp 15:28, the Cadillac began backing up.
Because of the snow, Murray was unsure if this was when the Cadillac struck the minivan. At
15:31, Murray tried to pick himself up. When Murray exited the minivan, the Cadillac was
facing west and moving slowly. When Cabrales fired his weapon, the Cadillac pulled forward.
¶ 50 On redirect, Murray testified that the video did not fairly and accurately depict all of the
events that occurred. First, because it is a frame-by-frame video and not in real time, some
action is missing between the frames. Second, there is no sound. Third, the officers’
perspectives were different from that portrayed in the video, which consists of an overview of the
parking lot.
¶ 51 6. Dr. Joseph Ogarek
¶ 52 Dr. Joseph Ogarek, an emergency room doctor at Lutheran General Hospital, treated
defendant. He asked defendant what brought him to the hospital, and defendant replied that he
was involved in a shooting. Defendant also stated that he was the driver of a vehicle and that he
thought he was involved in a suspected drug deal.
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2019 IL App (2d) 170149
¶ 53 On cross-examination, Ogarek testified that defendant was in critical condition at the
emergency room, but he agreed that defendant was not “on anesthetics” and was alert and
oriented to person, time, and place. Defendant had been shot in the cheek and had three holes in
his back consistent with gunshots.
¶ 54 On redirect, Ogarek testified that defendant’s responses to questions were logical and that
he was coherent the entire time.
¶ 55 7. Corporal Miguel Cabrales
¶ 56 Cabrales testified that he was part of the secondary arrest team. He wore a Streamwood
beanie with a badge that said “police officer,” a long-sleeved black shirt that said “police” along
the sleeves, an armor life vest that said “police” in white lettering on the front and back, a police
lanyard with his ID on it that said “police,” a hanging badge for the police department, a badge
on his belt, blue jeans, and gym shoes.
¶ 57 Once the blue minivan stopped behind the Cadillac, Cabrales exited the minivan, saw the
brake and reverse lights activate on the Cadillac, heard the engine revving, and heard the tires
spinning. The minivan was two to three feet behind the Cadillac. As Cabrales’s feet hit the
ground, the Cadillac hit him and the right rear panel of the minivan. The upper portion of his
body flew forward onto the Cadillac’s trunk. While he was on the Cadillac, it moved forward
and back again. When he got to the right rear of the Cadillac, he heard two gunshots. Cabrales
looked inside the vehicle and saw defendant looking at him. Thinking that defendant shot at
him, Cabrales retrieved his weapon and fired into the Cadillac seven times. Carrillo was the only
other officer he saw as he fired his weapon. Cabrales suffered a bruised left thigh.
¶ 58 On cross-examination, Cabrales testified that the Cadillac was parked at a 45-degree
angle and that the right rear portion simultaneously struck him and the minivan.
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2019 IL App (2d) 170149
¶ 59 8. Detective Roy Selvik
¶ 60 Selvik testified that he and Garofalo, his partner, were assigned as inside surveillance and
safety for the undercover officers. Selvik and Garofalo were dressed in plainclothes with no
identifiable markings.
¶ 61 While Selvik sat at a table with a view of the west parking lot, he saw the Buick arrive.
Carrillo and Gonzalez entered the restaurant and sat at a table. Selvik could see them but could
not hear their conversation. He also saw the Cadillac arrive. Dunn and defendant exited the
Cadillac and walked to the rear of the vehicle. They talked, and then Dunn walked into the
restaurant. Defendant opened the trunk, retrieved a white grocery bag that had some items
inside, and got back in the driver’s seat.
¶ 62 Dunn sat and spoke with Carrillo and Gonzalez. He then got up, ordered food, and
returned to the table. They conversed and then got up and exited through the west door. Carrillo
and Gonzalez remained near the door, and Dunn walked to the Cadillac, retrieved from the
passenger side the white bag, walked back toward the officers, and showed them the bag’s
contents. The three men then walked to the Buick. Gonzalez walked toward the passenger side,
near the trunk area; Dunn entered the passenger side; and Carrillo entered the driver’s side.
Then, Gonzalez walked toward the front passenger side, and Carrillo walked to the trunk and
opened it.
¶ 63 While Selvik and Garofalo were still inside the restaurant, they saw Carrillo pull out a
bag from the Buick’s trunk, go back to the driver’s side, and enter the car. A few moments later,
Gonzalez gave the “bust” signal for the primary arrest team to come. Selvik and Garofalo exited
the restaurant to assist the arrest team as they pulled up in the black van. Several officers exited
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2019 IL App (2d) 170149
the van. They were dressed in plainclothes but with identifiable police markings, tactical vests,
and badges on their belts. They went to the passenger side of the Buick.
¶ 64 Selvik also observed the blue minivan arrive, and he and Garofalo went to assist the
secondary arrest team, because Dunn had already been taken into custody. They walked around
the back of the minivan, on the passenger side. Selvik saw Carrillo run to the driver’s side of the
Cadillac, shouting “Police, police.” Gonzalez was on the passenger side. Selvik saw Cabrales
exit the minivan.
¶ 65 Selvik saw the reverse lights activate on the Cadillac, Cabrales jump out of the way, and
the Cadillac strike the minivan. He was not aware if Cabrales had been struck.
¶ 66 On cross-examination, Selvik described various events in the video. He testified that the
conversation between defendant and Dunn by the trunk of the Cadillac was not depicted in the
video. Selvik heard gunshots but did not see anyone shooting.
¶ 67 9. Detective Jose Gonzalez
¶ 68 Gonzalez corroborated Carrillo’s account of Dunn’s and defendant’s arrival at the
McDonald’s. Gonzalez testified that, when Dunn entered the McDonald’s, Gonzalez noticed a
large bulge on his right side. Gonzalez was concerned that it was a gun. While Dunn was
ordering his meal, Gonzalez alerted Carrillo to what he had observed and they agreed that
Gonzalez would confront Dunn about it. After Dunn returned to the table, Gonzalez asked about
the bulge. According to Gonzalez, Dunn stated that “it is all cool” and moved his shirt to reveal
that he had two cell phones in his waistband.
¶ 69 During the meal, Gonzalez asked Dunn if he had the money for the cocaine, and Dunn
replied that he did. When the three men exited the restaurant, Dunn went to the Cadillac’s
passenger side and retrieved a white plastic bag. When he returned to Gonzalez and Carrillo, he
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stated, “you see, I’m legit, I got the money.” He opened the bag and showed them large bundles
of money. The three men then walked to the Buick. Gonzalez stopped at the rear of the vehicle
and, for safety reasons, scanned the parking lot and looked at the Cadillac. Carrillo sat in the
Buick’s driver’s seat, and Dunn sat in the passenger seat. The trunk popped open, and Carrillo
walked to the trunk to retrieve the cocaine, while Gonzalez walked to the front passenger-side
quarter panel (to keep an eye on Dunn, to be on the lookout to ensure the officers’ safety, and to
be in position to give the arrest signal). Carrillo returned to the driver’s seat, but had to push
away stacks of money that Dunn had placed on the seat. Dunn handed Carrillo stacks of money,
and Carrillo handed Dunn the cocaine. Gonzalez then gave the arrest signal to the primary arrest
team.
¶ 70 The primary arrest team arrived on foot at the passenger side of the Buick and took Dunn
into custody. Gonzalez walked away from the arrest team and toward the restaurant. He heard
someone yell, “get the Cadillac, get the Cadillac.” He and Carrillo walked toward the Cadillac.
On his way, he heard Carrillo yell to defendant, “stop, police, get out of the vehicle.” Gonzalez
also ordered defendant to get out of the vehicle and identified himself as a police officer. He and
Carrillo ordered defendant to put the vehicle in park.
¶ 71 However, Gonzalez saw the reverse lights come on and the Cadillac move in reverse.
Gonzalez drew his gun and saw the Cadillac strike Cabrales on his upper leg area. Gonzalez was
concerned that the Cadillac was going to crush Cabrales and strike Carrillo and himself.
Gonzalez raised his gun and began firing at defendant; at the time, he believed that he had fired
about five rounds, but he came to learn that he had fired more rounds.
¶ 72 When the Cadillac moved forward, Gonzalez was not aware of any officers besides
Cabrales and Carrillo. The Cadillac drove over an embankment, turned left, and fled.
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¶ 73 Gonzalez testified that the surveillance video was not a fair and accurate depiction of
what occurred, because the images were like snapshots, it was not a continuous recording, it was
not in color, there was snow over the lens, there was no audio, and the angles were not ideal. It
did, however, depict some of the events. Gonzalez also viewed People’s exhibit No. 23, which
consists of 16 minutes of the surveillance video, beginning about 30 seconds before the Cadillac
arrives at the McDonald’s and ending about 30 seconds after it leaves. The 40 to 45 minutes of
footage that are excluded contain nothing relevant. Exhibit No. 23 was admitted into evidence
and played in open court. The trial court gave the jury a limiting instruction that it was not to
determine time based on either video and that the time stamps did not accurately reflect the time
that had elapsed. It could, however, use them to observe what happened in the parking lot and
the sequence of events.
¶ 74 On cross-examination, Gonzalez testified that he was at the rear passenger side of the
Cadillac the entire time he was firing his weapon. At this point, defendant played portions of the
surveillance video. At time stamp 16:07, Gonzalez identified himself standing at the rear of the
Buick, wearing a black jacket with lettering on the back. At 17:04, Gonzalez identified himself
at the rear driver’s side of the minivan. At 17:13, he could not identify the individual in the
frame.
¶ 75 Gonzalez admitted that, when he stated that Dunn said that he had the money, Gonzalez
could not recall if Dunn said “he,” in the singular, or “we,” plural. Dunn never referred to
defendant as his cousin in Gonzalez’s presence.
¶ 76 10. Detective Victor Lizotte
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¶ 77 Carpentersville detective Victor Lizotte testified that he was part of the surveillance team,
stationed in unmarked Ford Taurus, with Carpentersville detective Jorge Gonzalez. They were
parked in a strip mall parking lot, across from the McDonald’s, on the other side of Ravine Lane.
¶ 78 After the Cadillac drove over the embankment and turned left onto Ravine Lane, Lizotte
and Jorge Gonzalez pursued the Cadillac. The Taurus was equipped with low-profile lights and
a siren. The low-profile lights were below the visor area and in the grillwork; they consisted of
red and blue lights that flashed when activated. The vehicle had no decals and no light bar on
top.
¶ 79 Lizotte activated the lights and the siren while pursuing defendant. The officers followed
defendant south on Ravine Lane, then east on North Lake Parkway, then south on Route 25. At
the intersection of Routes 25 and 68, the Cadillac stopped when it encountered traffic. The
Taurus was directly behind the Cadillac.
¶ 80 Lizotte and Jorge Gonzalez exited the Taurus and approached the Cadillac. Lizotte
approached on the driver’s side and Jorge Gonzalez on the passenger side. Lizotte yelled,
“Police, put your hands up.” Lizotte had his gun drawn at “low ready,” which is at a 45-degree
angle and aimed in the general direction of the target. At this point, the rear window had been
shot out and the driver’s-side window had a softball-sized hole in it. Lizotte could not “see very
much” inside the car. He grabbed the door handle, but the door was locked. He then struck the
window to knock out more glass.
¶ 81 Defendant, whose hands were on the steering wheel, turned, and his right hand dropped
down along his right leg and then came up. He turned toward Lizotte, and Lizotte saw a dark
object in defendant’s hand. Lizotte believed that defendant was “going for a gun,” and he fired a
round at defendant. He was unaware if a bullet struck him.
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¶ 82 Defendant then continued south on Route 25. Lizotte and Jorge Gonzalez returned to the
Taurus, and a marked squad car, with lights and siren activated, pulled in front of their vehicle
and continued south on Route 25.
¶ 83 Lizotte wore a shirt, tie, and jacket, with a badge and a gun on his belt. Underneath his
jacket he wore a tactical outer carrier vest with a police emblem on it. Jorge Gonzalez was
similarly dressed.
¶ 84 On cross-examination, Lizotte testified that, after he broke off some of the window glass,
he could partially see defendant’s face.
¶ 85 11. Officer Brad VanHorn
¶ 86 Carpentersville officer Brad VanHorn testified that, while on his lunch break on January
17, 2012, he heard Murphy on the police radio state that shots had been fired. VanHorn was
aware of the reverse-buy operation at the McDonald’s, so he drove his marked squad car north
on Route 25. VanHorn also heard on the police radio a description of the Cadillac and its
direction of travel. He saw a Cadillac that matched the description exceeding the speed limit.
VanHorn activated his car’s lights and siren, made a U-turn and followed the vehicle.
Eventually, VanHorn caught up to and was immediately behind the Cadillac. They headed east
on Route 72, through East Dundee, South Barrington, and Hoffman Estates. They traveled over
80 miles per hour in sleet and snow. The Cadillac ran red lights and drove on the median in both
the left and right lanes, in violation of traffic laws. At Route 72 and Gannon Road, VanHorn lost
sight of the Cadillac.
¶ 87 VanHorn approached a Hoffman Estates patrol unit that had stopped traffic at Route 72
and Golf Road. He followed that unit and then several others that he believed had information
about the pursuit of defendant. Ultimately, VanHorn saw the Cadillac stopped at an Itasca
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McDonald’s. There were about 25 squad cars in the restaurant parking lot. Defendant was on
the ground and his face was bleeding.
¶ 88 VanHorn further testified that his squad car had a dashboard video camera that activates
when the emergency lights are turned on or when it is manually activated. He reviewed the
video from the incident and stated that it fairly and accurately portrays the events that day.
People’s exhibit No. 5, a nine-minute video, was admitted and published for the jury.
¶ 89 12. Angela Mathews
¶ 90 Mathews, a crime-scene investigator for the Illinois State Police, testified that she
assisted with processing the crime scenes in Carpentersville. On January 18, 2012, she
participated in executing a search warrant on the Cadillac. The vehicle was registered to
defendant, at 1659 North 36th Street, East St. Louis. Mathews located on the driver’s seat a
Sprint rebate form in a bloodstained, sealed envelope that had defendant’s name and address on
it.
¶ 91 On cross-examination, Mathews testified that the Cadillac had 31 defects on the exterior
and interior. There was also damage on one side. Some of the defects were consistent with
bullet holes and some of them indicated a left-to-right trajectory. There was blood on the
steering wheel and the dash area, the center console, and the front seats.
¶ 92 13. Sergeant Matt Ostrem
¶ 93 Carpentersville sergeant Matt Ostrem drove the blue minivan with the secondary arrest
team. He was assigned to block the vehicle the suspects arrived in and take them into custody.
Also in minivan were Murray and Cabrales.
¶ 94 Ostrem parked the blue minivan behind the Cadillac to prevent it from leaving. His team
was to exit the minivan and arrest any occupant of the Cadillac. When the minivan stopped,
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Ostrem heard the passenger-side sliding door open. Moments later, Ostrem saw the Cadillac’s
reverse lights come on. He heard the tires screeching on the icy pavement and saw the Cadillac
back into the van. He felt it strike the minivan, rocking it left and right. Murray fell in between
the two front seats. Ostrem could not see Cabrales. The minivan sustained a dent in the front
third of the passenger door.
¶ 95 After the Cadillac hit the minivan, the Cadillac rolled away about one or two feet and
then, with the tires still spinning in reverse, it hit the minivan a second time. The reverse lights
then went off, and the tires started spinning forward. The Cadillac accelerated rapidly over a
curb, traveled down an embankment, and continued onto Ravine Lane.
¶ 96 As the Cadillac rammed the minivan, Ostrem, Murray, and Cabrales were discharging
their firearms. Once the Cadillac fled, Ostrem exited the van.
¶ 97 Sometime later, Ostrem went to the Buick with Schuldt to collect evidence. He observed
money scattered about the front seat. The officers collected the money. Later, the officers
counted the money, which totaled $30,000.
¶ 98 Ostrem also testified as an expert on narcotics possession, possession with intent to
deliver, and delivery. He opined that the cocaine seized in this case was possessed with the
intent to deliver, not for personal use. The main factor in support of this conclusion was the
amount of the cocaine—over 900 grams—which is well beyond any personal-use amount.
Another factor was that defendant traveled a great distance, from East St. Louis, to purchase the
cocaine. A normal user would not travel six or seven hours to purchase cocaine. Traveling with
cocaine would risk arrest, and one would undertake that risk only “when the return on investment
is greater than using it.” The cocaine would be broken down into smaller amounts and sold for
profit.
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¶ 99 On cross-examination, Ostrem testified that he could not recall if he saw someone
standing by the driver’s side of the Cadillac when he approached it. As he pulled up, Ostrem
recalled, Stankowitz was by the front right corner of the Cadillac.
¶ 100 14. Rhonda Earl
¶ 101 Rhonda Earl, a drug chemist for the Illinois State Police Division of Forensic Services,
testified as an expert on narcotic analysis and identification. She testified that the substance
seized weighed 993.3 grams and tested positive for cocaine, which is a controlled substance.
¶ 102 15. Sergeant Jon Plimpton
¶ 103 Plimpton, a Village of Schaumburg police sergeant, testified that he was working patrol
on January 17, 2012. At 12:50 p.m., he received a radio dispatch with information that police
officers were pursuing a Cadillac traveling east on Route 72. Later, he learned that the Cadillac
was proceeding east on Bode Road, which runs into Schaumburg. The Cadillac then traveled on
Roselle Road and Schaumburg Road. Plimpton alerted other officers and had stop sticks, which
are hollow spikes intended to deflate tires, set up near Plum Grove Road. As the Cadillac
approached Plum Grove Road, defendant slammed the brakes, made a U-turn, and avoided the
sticks. Defendant then traveled west on Schaumburg Road. Plimpton drove east, saw the
Cadillac, and drove across lanes of traffic to try to pin the vehicle, but it sped past him. Plimpton
and other officers, who were all in marked squad cars (Plimpton’s car and the cars in front of
him had their sirens and lights activated), pursued the Cadillac. The chase proceeded through
Schaumburg and Elk Grove Village to Irving Park Road, traveling at speeds from 40 to 80 miles
per hour. Ultimately, Plimpton’s squad car was immediately behind the Cadillac and they
proceeded east on Irving Park Road. At Prospect Avenue in Itasca, defendant made a hard left
turn into a McDonald’s parking lot. As defendant came to a stop, Plimpton pursued him into the
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lot. Plimpton observed defendant lean over the passenger side of the vehicle, as if trying to
retrieve something.
¶ 104 Plimpton pulled behind the Cadillac, opened his driver’s-side door, and took cover
behind it. He drew his sidearm and instructed defendant to put up his hands and to lie on the
ground. Defendant complied. After backup arrived, Plimpton arrested defendant and had other
officers contact paramedics. Plimpton’s squad car was not equipped with a dash camera. The
State rested.
¶ 105 16. Defendant
¶ 106 Defendant testified in his own defense. He stated that he met Dunn around August or
September of 2011, when Dunn expressed an interest in investing in defendant’s record label.
On January 17, 2012, defendant, who was in Chicago, went to Rockford to meet with Dunn.
Dunn’s driver’s license had been suspended for DUI, so defendant drove Dunn to Carpentersville
because Dunn wanted to meet someone.
¶ 107 They arrived at the McDonald’s, and defendant believed that Dunn wanted only to get
some food. However, Dunn asked defendant to get a bag out of the trunk.
¶ 108 Defendant sat inside his car, listening to music. He could not see Dunn being arrested
two cars away. Carrillo approached defendant’s car, tried to open the door, and asked defendant
to exit the car. Carrillo was not dressed as a police officer. Defendant immediately put the car
in reverse and tried to back out of the parking spot. He saw the blue minivan behind him,
stepped on the brakes, and bumped the vehicle. Because Carrillo was standing to his side with a
gun, defendant “immediately out of reaction put my car into drive and drove forward.” As he
drove forward, he heard shots. Defendant continued driving and he was hit in the face by a
bullet that came through the back window. “I am trying to process the fact that somebody either
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shot me in front of the police or the police just shot me. So what I did is I just kept driving. I
drove until I was for sure that I saw a bunch of police officers, a lot of police officers.” When he
saw the officers, he pulled into the Itasca McDonald’s and surrendered.
¶ 109 On cross-examination, defendant testified that he met with Dunn on January 17, 2012, at
about 10 a.m., and the two went to Carpentersville. “He told me he was going to meet someone
but he didn’t tell me the reason why.” Defendant stated that he did not know that the white
plastic bag contained $30,000 in cash. He further testified that he did not see Dunn come out of
the restaurant and walk to the Buick with two other individuals. Nor did he notice the police
activity there, including the four police officers screaming at the Buick. Defendant was listening
to music and was parked between two sport utility vehicles.
¶ 110 When Carrillo approached his car, defendant did not hear him announce that he was a
police officer. Defendant thought that he was going to be robbed or shot. He felt only one
impact with the blue minivan. He did not see any other officers by his vehicle.
¶ 111 After defendant drove over the embankment and onto the road, he was shot. He drove to
his left and down another road and then stopped behind traffic. While he was stopped, he saw
red and blue police lights on a vehicle behind him and heard police sirens. He did not stop to
speak to the police officers about what happened. He kept driving after “someone smacked on
my window.” He did not see that person, as he was looking at the woman in the car in front of
him, who was looking at defendant with fear on her face. The person who smacked his window,
according to defendant, did not yell “police, put your hands up” or order him to get out of his
vehicle. Defendant drove off and ended up 20 miles from where he was initially shot. At some
point, he was aware that police officers were following him. He saw squad cars behind him,
with lights and sirens. Defendant did not want to be stopped by the police that day, but he was
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not trying to avoid them. Defendant testified that he was not familiar with the area and was
looking for a place to stop where he could see a lot of people. He had not been aware that more
than two squad cars were following him. However, he said, two or three would not be enough
for him to stop, “not when [he had] been shot” and “if they [were in] the same department.”
¶ 112 Defendant denied making a U-turn to avoid a roadblock. Defendant rested.
¶ 113 17. Surveillance Video
¶ 114 The 16-minute surveillance video shows defendant and Dunn arriving in the Cadillac. It
also shows defendant retrieving the plastic bag from the trunk, Dunn returning to the Cadillac
from the restaurant and retrieving the bag, the blue minivan arriving and stopping behind the
Cadillac, officers surrounding the Cadillac, and defendant backing up toward the blue minivan
and then fleeing forward over the embankment. The center of the lens is blocked by ice or snow,
and, as related at trial, the images are choppy.
¶ 115 B. Closing Arguments and Exhibits Conference
¶ 116 During closing arguments, the prosecutor commented, “You look at that video for what
it’s worth” and “We showed you the video for what it was worth.”
¶ 117 Defendant, during his closing, asserted that there were discrepancies in the testimony of
the officers who were shown in the video.
¶ 118 During rebuttal, the State argued:
“Ladies and gentlemen, nothing in the law says this video has to be—this crime
has to have been captured on the video in order for you to find the defendant guilty. You
have seen the video. You have seen what it shows. You have seen what it doesn’t show.
Also you know what it doesn’t show? It doesn’t show an arrest signal but it
should be on there because it’s in the viewing area.
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You know what else it doesn’t show? Three officers discharging their firearms.
Keep that in mind if you have the opportunity to look at that video again in assessing how
much it helps you. You cannot watch that video and decide from that video alone what
happened in this case, ladies and gentlemen. You have to rely on the testimony much
like you would if that video didn’t even exist. So look at that testimony. Judge the
credibility of the testimony. Use your common sense. Does [sic] the things that the
witnesses testified to make sense? Test it against each other. Look at the bias of the
defendant that he has in getting on that witness stand and testifying. Test all of that,
ladies and gentlemen. Look at the corroboration. Look at the credibility. Use your
common sense.”
¶ 119 After closing arguments, during the conference concerning the admission of the exhibits,
defendant asked that the jury be given the surveillance video. The prosecutor commented that
the State was not asking for the video to go back to the jury, “based on my previous experience
of judges sending videos back. They need to have equipment to play it, make sure they can’t
look at anything else.” The trial court denied defendant’s request, stating, “I am not going to
send back the video at this point.” Further,
“[THE COURT:] If they ask for the video, then I am going to arrange something
for them to do. In any event, I am not sending them back. If they ask to see the video,
within my discretion, I will make my final decision then, but probably what I am going to
do is have them come back in the courtroom and look at it again—
THE DEFENDANT: Okay.
THE COURT: —because I want—you’d have to send equipment back there. I
can’t control how many times they look at it. They could control it. They could look at it
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a thousand times. I think that’s unfairly highlighting certain evidence, so I am not going
to send any videos back.
If I get a question or request, then we will deal with it at that time. So over—I am
going to deny defendant’s request to send videos back.”
¶ 120 C. Jury Deliberations
¶ 121 During deliberations, the jury sent a note to the court, asking for the full surveillance
video on a computer. Before the State and defendant, the court stated: “We thought this may
happen. The part that bothers me, of course, is the full video aspect of it. I am not going to let
them take the laptop back there. We are going to play it once in the courtroom.” The State
confirmed that the full video had been admitted but not published. The court stated, “Can’t do
that then.” The State further confirmed that it had played the 16-minute video.
¶ 122 The trial court asked defendant if he had any response or comment, and he replied, “No.”
He did, though, object to the video being played on a television rather than a larger screen. The
court overruled his objection.
¶ 123 The trial court decided that the 16-minute video would be shown to the jury. It also
proposed that the video could not be stopped and that there would be no questions. The State
and defendant had no objection. The trial court decided that the video would be played on a
television stationed by the jury box.
¶ 124 With the jury back in the courtroom, the court stated, “I am going to play the video for
you. We are going to look at it in the courtroom here. I am going to play the video.” It further
explained:
“Now, the process by which we are going to do this is no questions can being
[sic] asked. No lawyers are going to talk to you. Nobody is going to talk to you but me
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and we are going to run through that 16 minute video, People’s 23, one time.
I don’t know if you retained all of your notebooks and everything because you
can take notes if you wish to do that.
We will run that through one time. I am not going to run through it again. We
can’t answer any questions you may have based on that video. You have to look at it
yourself and draw whatever determinations or whatever information you can from that.
Let me explain a little bit, just so you understand, and the reason I am doing it this
way is because in my experience, if you send the video back there, that [sic] it could be
viewed a thousand times. Now, there is no other evidence that you are going to view a
thousand times, just that evidence. That’s—there is no other evidence you are going to
view twice like you are the video in this matter or this particular video.
I don’t think it’s fair to the parties to overemphasize one piece of evidence over
any other piece of evidence. That’s how this thing gets played out.
If you asked me if could [sic] bring some other witnesses and put them back on
the stand, see, we couldn’t do that. We can’t do—you can’t be given that more than
one—more than the time that they are allowed to you, so we will do it once. I understand
that it’s significant. I find it’s fair. We can do it one time.
It’s not fair for any lawyers to say anything or the defendant to say anything. We
are just going to view it in silence. When we are done, we will send you back to the jury
room to further your deliberations.”
¶ 125 D. Verdicts and Subsequent Proceedings
¶ 126 The jury returned guilty verdicts on all counts: possession with intent to deliver over 900
grams of cocaine; attempted first-degree murder of Stankowitz (720 ILCS 5/8-4(a), 9-1(a)(1)
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(West 2012)); aggravated battery of Cabrales, Murray, and Ostrem; and aggravated fleeing or
attempting to elude a peace officer.
¶ 127 Defendant filed a motion for a new trial. He raised several issues, including the
sufficiency of the evidence and the trial court’s refusal to allow the jury to have the surveillance
video in the jury room. On November 3, 2016, the trial court denied defendant’s motion but
entered judgment notwithstanding the verdict on the two counts of attempted first-degree
murder, finding that defendant had intended to elude, not to kill, Stankowitz. In announcing its
ruling, the court noted that it had reviewed the transcripts and “the video recordings that were
submitted at trial, both the edited version and also submitted as an exhibit was the unedited
version. I looked at both of those again to refresh the Court’s memory.” (Emphases added.)
Explaining its denial of the jury’s request for the surveillance video in the jury room, the court
stated:
“I do have—the reason I don’t do that is because I feel that if you leave the video
in the jury room with the jury with the means to play that video, then it cannot be
controlled of [sic] how many times they look at it. I suppose I could order them to only
look at it one time, but, again, I find when I leave it at their control, that I have no way of
knowing whether that actually occurred. Whereas, if I show them the video one time in
the courtroom without any questions being asked, just the viewing of the video,
obviously the amount of time that they view that video is completely controlled, and I
think that’s more fair to all the parties involved. That’s my reason why I just exercised
my discretion and did it that way.”
¶ 128 In addressing the attempted-murder charges, the trial court commented:
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“The video itself is choppy when viewing this particular situation. I viewed it several
times, both videos, to get a very good—to try to see what information I could glean from
the admitted videos; and, again, the time lapse on the trial counter was not accurate as to
the time, so that was not helpful. And, again, the video is somewhat choppy. I did see an
officer there. I did see, I think it was, an officer, a person move a step or so backwards
from the car before the car went down the embankment.”
¶ 129 The trial court sentenced defendant to 30 years’ imprisonment for possession of cocaine
with intent to deliver; 3 years’ imprisonment for aggravated battery to a peace officer; and 1 year
imprisonment for aggravated fleeing or attempting to elude a peace officer. It further found that
consecutive sentences were necessary to protect the public and thus ordered that the three prison
terms be served consecutively. Defendant, now represented by counsel, appeals.
¶ 130 II. ANALYSIS
¶ 131 A. Surveillance Video
¶ 132 Defendant argues that the trial court committed reversible error when, in response to the
jury’s request to view the surveillance video, the court allowed only a single, silent viewing in
open court and expressly discouraged the jury’s reliance on the video. For the following reasons,
we agree.
¶ 133 Initially, we note that defendant acknowledges that he did not object when the court
imposed the restrictions in the middle of the deliberations (although he did do so at the outset of
the deliberations and in his posttrial motion, arguing that the video should have been given to the
jury). Thus, the issue was forfeited and may not be considered on appeal, unless there was plain
error. Ill. S. Ct. R. 615(a) (eff. Jan. 1, 1967).
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“[T]he plain-error doctrine bypasses normal forfeiture principles and allows a
reviewing court to consider unpreserved error when either (1) the evidence is close,
regardless of the seriousness of the error, or (2) the error is serious, regardless of the
closeness of the evidence. In the first instance, the defendant must prove ‘prejudicial
error.’ That is, the defendant must show both that there was plain error and that the
evidence was so closely balanced that the error alone severely threatened to tip the scales
of justice against him [or her]. *** In the second instance, the defendant must prove
there was plain error and that the error was so serious that it affected the fairness of the
defendant’s trial and challenged the integrity of the judicial process. People v. Keene,
169 Ill. 2d 1, 17 (1995). Prejudice to the defendant is presumed because of the
importance of the right involved, ‘regardless of the strength of the evidence.’ (Emphasis
in original.) People v. Blue, 189 Ill. 2d 99, 138 (2000). In both instances, the burden of
persuasion remains with the defendant.” People v. Herron, 215 Ill. 2d 167, 186-87
(2005).
¶ 134 The defendant must first establish that a clear or obvious error occurred. People v.
McLaurin, 235 Ill. 2d 478, 497-98 (2009). “ ‘[T]he plain error exception will be invoked only
where the record clearly shows that an alleged error affecting substantial rights was
committed.’ ” (Emphasis in original.) People v. Hillier, 237 Ill. 2d 539, 549 (2010) (quoting
People v. Hampton, 149 Ill. 2d 71, 102 (1992)).
¶ 135 Defendant argues that the trial court’s response to the jury’s request to view the video
during deliberations was erroneous in three ways: (1) it violated the privacy of deliberations by
requiring that the jury be silent while viewing the video in open court in the presence of the
judge, the parties, counsel, court personnel, and spectators; (2) it limited the jury to a single
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viewing; and (3) it invaded the jury’s role as fact finder by admonishing the jury that repeated
viewings of the video would improperly emphasize that exhibit over other evidence in the case.
Defendant asserts that the fallacy of the trial court’s restrictions and admonishments was made
plain after trial, when the court itself relied on its own repeated viewings of the video to overturn
the jury’s verdict on the most serious counts—attempted first-degree murder. He urges that the
court’s actions deprived him of a fair trial and that this court should reverse his convictions and
remand for a new trial. In defendant’s view, the video was key evidence used by both the State
and the defense to support their theories of the case. Further, during trial, everyone
acknowledged the video’s poor quality, including that there was ice or snow on the lens and that
the footage was not continuous or seamless. On the latter point, the court admonished the jury
that the video was “choppy” and that it should not use the timer displayed on the screen to
measure the actual time of the events. Defendant notes that the State played the video during
opening statements, indicating, from the commencement of the trial, the video’s significance.
Further, the State’s witnesses testified regarding the video to support their versions of the events.
Defendant, in turn, testified that he did not know that the people who approached him were
police officers, and he played a portion of the video that emphasized its limitations and the ways
in which it did not support the officers’ testimony. He notes that Stankowitz admitted on cross-
examination that the video did not show his hands on the hood of the Cadillac. Also, Murray
testified that he felt the blue minivan receive multiple impacts, but, on cross-examination, he
admitted that the video showed defendant’s car go forward only once after it backed into the
minivan.
¶ 136 The trial court has discretion to assess a jury’s request to review evidence, including
which exhibits jurors may have in the jury room. People v. Rouse, 2014 IL App (1st) 121462, ¶
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77. We will not reverse the trial court’s decision unless it was an abuse of discretion. Id. An
abuse of discretion occurs where no reasonable person would take the court’s view. People v.
Chambers, 2016 IL 117911, ¶ 68.
¶ 137 “It is a basic principle of our justice system that jury deliberations shall remain private
and secret. [Citation.] The primary purpose of this honored rule is to protect the jurors from
improper influence. [Citation.] Although the presence of a third party impinges on the privacy
and secrecy of deliberations, reversal is not warranted if no harm resulted from the intrusion.”
People v. Johnson, 2015 IL App (3d) 130610, ¶ 17; see United States v. Olano, 507 U.S. 725,
737-41 (1993) (mere presence, but not participation, of alternate jurors during jury deliberations
warrants reversal only if the defendant suffers prejudice as a result of the intrusion; but “[t]here
may be cases where an intrusion should be presumed prejudicial”). In the context of replaying
videotaped testimony, it has been noted that doing so might lead the jury to overemphasize that
testimony. 75B Am. Jur. 2d Trial § 1390 (2019). Thus, courts have held that videotaped
testimony should be replayed in open court, under the trial court’s supervision, and with the
defendant and counsel present. Id.
¶ 138 In Illinois, authority is currently split as to whether it is error for a trial judge to have the
jury view, during deliberations, nontestimonial video evidence in the courtroom, with the judge,
counsel, and the defendant present. The First, Fourth, and Fifth Districts (and earlier Third
District cases) have concluded that it does not constitute reversible error. People v. Ryder, 2019
IL App (5th) 160027, ¶¶ 47-51 (in dicta); People v. Lewis, 2019 IL App (4th) 150637-B, ¶¶ 87,
95; People v. McKinley, 2017 IL App (3d) 140752, ¶¶ 14, 22; People v. Johnson, 2015 IL App
(3d) 130610, ¶ 20; People v. Rouse, 2014 IL App (1st) 121462, ¶ 78. The Third District has
more recently concluded that such a procedure constitutes second-prong plain error. People v.
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Hollahan, 2019 IL App (3d) 150556, ¶¶ 20, 29; People v. Henderson, 2017 IL App (3d) 150550,
¶¶ 46, 48. We turn to review the case law.
¶ 139 In Rouse, 2014 IL App (1st) 121462, technical difficulties prevented playing a
surveillance video in the jury room during a murder case. The reviewing court held that the trial
court did not abuse its discretion in allowing the jury, with proper limiting instructions, to view
the video in the courtroom rather than in the jury room, before the judge and the parties. Id. ¶ 78.
Further, the reviewing court noted that the trial court played only the portions of the video that
the jury had requested, but it also informed the jurors that they could view the recording as often
as they wished and cautioned them not to engage in deliberations or discussions in the
courtroom. Id. No one communicated with the jury while the video was played. Id. ¶ 79. The
reviewing court commented that the better approach would have been for the jurors to view the
video in the jury room, on a laptop (which also happened to contain other material), but with
instructions not to use the laptop for any purpose other than to view the video and to return it
once they were done. Id. ¶¶ 80-82.
¶ 140 In Johnson, 2015 IL App (3d) 130610, the reviewing court concluded that there was no
abuse of discretion and held that the defendant, who had been convicted of aggravated battery of
a peace officer, failed to establish prejudice when the trial court allowed the jury to review a
surveillance video in the courtroom before the judge, counsel, and the defendant. Id. ¶ 20. There
was no video equipment readily available for use in the jury room. Id. The reviewing court
determined that allowing the jurors to view the video in the courtroom demonstrated that the trial
court properly determined that the additional viewing was probative and not unduly prejudicial.
Id. ¶ 15. It held that there was no prejudice, where the viewing showed no intent to influence the
jury’s decision. Id. ¶ 20. The trial court admonished the parties that they would not be allowed
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to communicate with the jury during the courtroom viewing, and neither the prosecutor nor
defense counsel attempted to do so. Id. The reviewing court rejected the defendant’s argument
that the video evidence was favorable to him and that he would have been acquitted if the jury
had been allowed to view the video in the jury room. Id. ¶ 21. It noted that the video was
introduced by the State as evidence of the defendant’s guilt and that the video corroborated the
officers’ testimony. Thus, the court could not assume that viewing it again in the jury room
would have led to a different result. Id.
¶ 141 The dissenting justice would have held that the viewing of the video in the judge’s and
the parties’ presence exerted a chilling effect on the jury’s deliberations and its verdict. Id. ¶ 54
(McDade, P.J., dissenting). The presence of the judge, the defendant, and the attorneys, the
dissent argued, was intrusive, and the controlled environment prevented free discussion by the
jurors and did not allow them to control the video. Id. ¶¶ 49-56.
¶ 142 In McKinley, 2017 IL App (3d) 140752, an aggravated DUI case, the defendant argued
that during deliberations the trial court erred in allowing the jury to view a video of his traffic
stop and field sobriety tests in the courtroom, rather than in the jury room, in the presence of the
substitute judge, the prosecutor, the defendant, defense counsel, and the bailiff. (The reviewing
court did not note if there were technical issues that precluded playing the video in the jury
room.) Reviewing the issue for plain error, the court affirmed the defendant’s conviction,
holding that the viewing was not prejudicial to the defendant where the record did not reflect that
the presence of the defendant, the attorneys, and the substitute judge affected the jurors in any
way. Id. ¶ 14 (opinion of Carter, J.). No one present in the courtroom spoke to the jury while the
video was played, and the trial court instructed the jurors that, if they had any further questions,
they could provide them to the bailiff. Id. 23. In the absence of prejudice, there can be no abuse
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of discretion. Id. ¶ 22. Further, the reviewing court noted that the mode and manner in which a
trial court allows a jury to view evidence falls within the scope of the court’s inherent authority
to manage its courtroom. Id. However, the McKinley court cautioned that the trial court’s
procedure “could have the potential of becoming problematic and possibly lead to prejudicial
error in some cases.” Id. The court next rejected the defendant’s argument that it would have
benefitted him if the jurors had been allowed to pause and replay portions of the video. Id. ¶ 24.
The court noted that the video clearly showed, consistent with the officers’ testimony, that the
defendant did not properly complete the field sobriety tests and, thus, that viewing the video in
the jury room would not have resulted in a different verdict. Id. Finally, even if there was error,
there was no plain error, because the evidence was not closely balanced and the error was not a
structural error, because it did not affect the fairness of the trial or challenge the integrity of the
judicial process. Id. ¶¶ 25-27.
¶ 143 The specially concurring justice would have held that the trial court erred in allowing
anyone to be present with the jury when it viewed the video, but she agreed with the alternative
holding that any error was not plain error. Id. ¶¶ 32, 36 (O’Brien, J., specially concurring). The
dissenting justice would have concluded that, although allowing jurors to view evidence in
outsiders’ presence is not necessarily error in every case, the instant case warranted finding error.
Id. ¶ 38 (Holdridge, P.J., dissenting). He concluded that the trial court’s instructions were
erroneous in that they lacked specificity and were confusing. Id. ¶ 41. The trial court had
instructed the jurors that no one could make comments about the video, that they could make
whatever observations they chose to make, and that there would be no questioning of any of the
attorneys. Id. ¶ 40. The dissenting justice would have concluded that a reasonable juror would
not have known if they were allowed to discuss the video in the jury room. Id. ¶ 41. The
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instructions, coupled with the presence of the judge, the parties, and the bailiff, chilled the jury’s
deliberations and prejudice should have been presumed. Id. ¶¶ 41-42. Thus, a clear error
occurred. Id. ¶ 44.
¶ 144 In Henderson, 2017 IL App (3d) 150550, a murder case, the trial court twice allowed the
jurors to review video and audio evidence in the courtroom during their deliberations, but in the
presence of only an employee of the prosecutor’s office and the bailiff. The trial court had
instructed the jurors not to discuss the case while the prosecutor’s office employee was in the
room. The reviewing court, reviewing for plain error, held that the trial court erred in allowing
the jury to review the video and audio evidence while the prosecutor’s office employee was
present but neither the judge, defense counsel, nor the defendant was present to oversee the
interaction and observe any impropriety. Id. ¶ 46. The court also concluded that the error was a
structural error, because allowing the employee to be in the room when the jury reviewed the
evidence, without prior notice to the defendant, rendered the trial fundamentally unfair and
eroded the integrity of the judicial process. Id. ¶ 48.
¶ 145 In Lewis, 2019 IL App (4th) 150637-B, the reviewing court held that the trial court did
not err (and thus there was no structural error) in playing, during deliberations, a 911 recording
in the courtroom with the trial judge, the defendant, and the attorneys present. Id. ¶¶ 87, 95.
Technical issues had precluded playing the recording in the jury room. The reviewing court
rejected the Third District’s analysis in McKinley, and it adhered to its view in an earlier case
that allowing a jury to view a video in the courtroom during deliberations did not amount to a
structural error. Id. ¶ 95 (citing People v. Matthews, 2017 IL App (4th) 150911, ¶ 43); see also
Matthews, 2017 IL App (4th) 150911, ¶ 44 (citing McKinley, 2017 IL App (3d) 140752, ¶¶ 27,
36, and declining to conclude there was structural error; further noting that a declaration that
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there was structural error was “best left to our supreme court”)); Ryder, 2019 IL App (5th)
160027, ¶¶ 47-51 (replay, in presence of a bailiff and a clerk, of investigator’s interview with the
defendant held not an abuse of discretion; further holding that, even if allowing jury to view
evidence in the presence of neutral nonjurors or the parties were error, it does not constitute
second-prong plain error). 1
¶ 146 The Lewis court further noted that a trial court may exercise its discretion by bringing the
jury into the courtroom to replay a recording; it need not send the recording into the jury room.
Lewis, 2019 IL App (4th) 150637-B, ¶¶ 97, 99 (citing foreign cases noting this as the majority
rule). The court stated that this process avoids problems with operating the equipment. Id. ¶ 97.
It also noted that, when the jury returns to the courtroom and listens silently to the recording, it is
doing the same thing it did during the trial. Id. ¶ 98. However, if the trial court replays the
recording in the courtroom, “the court, parties, and counsel must be present to view or hear the
evidence, and the court should instruct the jury not to discuss the evidence while in the
courtroom.” (Emphasis added.) Id. ¶ 99. Also, in the jury’s presence, the trial court should
admonish everyone else to be silent and not to communicate with or try to influence the jury. Id.
After the viewing, it should instruct the jury to continue its deliberations, which may include the
replay. Id. Although the trial court in Lewis did not give these admonishments and instructions,
the reviewing court concluded that there was nothing in the record that showed prejudice or any
impropriety during the replay of the recording. Id. ¶ 100.
¶ 147 More recently, the Third District thoroughly explained the rationale for finding a
courtroom viewing presumptively prejudicial and a structural error. In Hollahan, 2019 IL App
1
The Fifth District’s statement that there is no structural error if the replay occurs in the
parties’ presence is dicta, because in that case the parties were not present during the replay.
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(3d) 150556, an aggravated DUI case, the jurors were shown a video in the courtroom, because
the court did not have the “ ‘arrangement’ ” necessary to allow the jurors to view it in the jury
room. Id. ¶ 10. The trial court also allowed the defendant, the attorneys, and two alternate
jurors to remain in the courtroom while the jury watched the video, and the trial court
admonished them that no conversations could occur while the jury watched the video. The trial
court instructed the jurors that no one would be speaking to them, that no one was to say a word,
and that, if the sound needed to be adjusted “or anything,” that would be done. Reviewing for
plain error, the Third District reversed and remanded, holding that the trial court erred by having
the jurors watch the video in the courtroom with the prosecutor, the defendant, and defense
counsel present and, further, that the error constituted a structural error. Id. ¶¶ 20, 29. The third
parties’ presence during deliberations “clearly inhibited” the jurors’ deliberations “and restrained
their freedom of expression and action.” Id. ¶ 21. Each of the nonjurors in the courtroom had “a
direct interest in the outcome of the litigation,” and their presence was “inherently intimidating”
to the jurors, who “almost certainly” would have been inhibited in their deliberations while the
video was played. Id. Further, the trial court’s statements to the jury removed any reasonable
doubt on the question, where the court conveyed that no one, including the jurors, could speak
while the video was played and that they could not control the playing of the video, pause it or
replay any parts that they wanted to view in detail, or discuss it. Id. ¶ 22. The trial court
“effectively precluded the jurors from engaging in any deliberations while the video was being
shown and likely limited their ability to focus sufficiently on the particular portions of the video
that gave them concern.” Id.
¶ 148 The reviewing court disagreed with case law that declined to find reversible error under
similar circumstances and that relied on the facts that the third parties in the courtroom were
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instructed not to communicate with the jurors (and did not attempt to do so) and that the jurors
returned to the jury room afterward for unfettered deliberations. Id. ¶ 23 (citing Lewis, Johnson,
and Rouse). The court noted that these facts did not mitigate the prejudicial impact on the
deliberations that occurred while the jurors viewed the video. Id. The jurors could not discuss
the video as they were viewing it or pause or replay any portions of it that they found important.
Id. Thus, in each case, the trial court’s procedure
“directly impeded the jury’s deliberations. The mere fact that the jury could have
discussed the video later in the jury room is immaterial. In each case, the jury was
prevented from controlling the video, from freely discussing it, and from debating any
issues relating to the video while they were watching it.” Id.
The Third District also disagreed with opposing case law because those cases did not
acknowledge that the mere presence of the third parties in the courtroom improperly intruded on
the privacy of the jury’s deliberations, with an inherently intimidating and inhibiting effect upon
them. Id. ¶ 24. This should be deemed, the court noted, presumptively prejudicial. Id. ¶ 24 n.3
(distinguishing Olano and noting that alternate jurors were disinterested parties, whereas the
parties and counsel had a direct interest in the outcome of the case and the trial judge was an
“authoritative, intimidating figure who was not a finder of fact and did not share the same
standing as the jurors”). Criticizing cases that ruled that a courtroom viewing during
deliberations is no different from the initial viewing during the trial, the court deemed the
contexts “critically different” and noted that, unlike public trials, deliberations must be private
and secret. Id. ¶ 25. The court also noted that jurors must be shielded from outside influences.
Id.
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¶ 149 The Hollahan court also noted that, although a trial court has discretion to determine
whether to grant a jury’s request to view evidence and the mode and manner in which the jury
views the evidence, the court abuses its discretion and commits reversible error if it allows the
jury to view that evidence in a manner that improperly inhibits the jury’s deliberations. Id. ¶ 26.
The court also addressed the technical aspects of viewing a recording, stating that it was
“difficult to believe” and “inexplicable” that technical issues would frequently preclude
arranging for a jury to review video or audio evidence in the jury room without risking its
destruction or other technical difficulties. Id. ¶ 27. However, even if a recording must be played
in the courtroom, the court determined, the jury should view it in private, not in the presence of
third parties. Id. ¶ 28. The jury’s mere presence in the courtroom does not transform the activity
into a court proceeding requiring the presence of the judge and the parties. Id. “The parties have
no right to be present for such deliberations, regardless of where they occur. *** Nor does it
entitle the defendant or any other third party to be present during those deliberations.” Id.
¶ 150 The Third District also held that the trial court’s procedure was structural error and, thus,
reversible under the plain-error doctrine. Id. ¶ 29. The court noted that the presence of the third
parties “was inherently intimidating and necessarily impeded or inhibited the jurors’ free
discussion and deliberation as the video was being shown to them.” Id. ¶ 29. This was
exacerbated by the trial court’s statement that they were not free to speak while it was played.
This rendered the trial “an unreliable means of determining guilt or innocence,” and the
reviewing court declined to follow case law holding or suggesting otherwise. Id.
¶ 151 Addressing the dissent’s comment that there is reversible error only if the defendant is
prejudiced by an intrusion into a jury’s deliberations, the majority disagreed with the dissent’s
assumption that prejudice could be established only by showing either that a third party engaged
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in prejudicial communication with a juror or that improper extraneous information reached the
jury. Id. ¶ 30. In the majority’s view, the mere presence of third parties during deliberations
“improperly intrudes upon the privacy of jury deliberations and has an inherently intimidating
and inhibiting effect upon such deliberations.” Id. Their presence “should be deemed
presumptively prejudicial [citation], regardless of whether they involve any express
communications or the transmission of ‘extraneous information.’ ” (Emphasis added.) Id. The
majority further noted that the prejudice created by the third parties’ presence during
deliberations was compounded in the case before it by the trial court precluding the jury from
controlling the video, commenting on it, or deliberating while watching it. Thus, its
deliberations were impeded on a matter of obvious concern to it and prejudiced the defendant.
Id.
¶ 152 The dissenting justice would have held that the defendant failed to show any error or thus
any plain error. Id. ¶ 37 (Carter, J., dissenting). He analogized to the law regarding
impeachment of a jury verdict, which states that “a rebuttable presumption of prejudice arises
when a defendant shows that a third party has communicated with a juror about a matter pending
before the jury or that the jury has been exposed to improper extraneous information that relates
directly to something at issue in the case that may have influenced the verdict.” Id. ¶¶ 39-40.
The dissenting justice noted that allegations that a juror “ ‘may have been exposed to extraneous
information of an unknown nature’ ” are insufficient to raise a presumption of prejudice. Id. ¶
40. In the case at hand, the dissenting justice noted, the defendant had not shown that any of the
third parties engaged in prejudicial communication with the jury about a matter pending before it
or that improper extraneous information reached the jury. Id. ¶ 41. “The mere possibility of an
improper communication,” which is all that the defendant had shown, was insufficient to
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establish prejudice. Id. The dissenting justice would not have found an abuse of discretion and,
further, he commented, “With all due respect, I believe that the majority’s position on this issue
is a radical departure from the traditional way reviewing courts have treated questions involving
the integrity of jury deliberations.” Id.
¶ 153 1. Whether Error Occurred
¶ 154 Regarding defendant’s first claim of error—that the trial court erred in restricting the jury
to one silent viewing of the video in open court—he argues that fundamental principles of our
justice system were violated. The presence of third parties, defendant asserts, significantly
disrupted the deliberations, and the silence imposed on the jurors exerted a chilling effect
because they could not discuss the video while it played. Further, the court’s exclusive control
of the video deprived the jurors of the opportunity to pause or replay key parts of it as they
deliberated. Thus, restricting the jury to one silent viewing in open court was error.
¶ 155 Defendant also argues that, unlike in McKinley and Johnson, where the courts determined
that the juries’ uninhibited review of the video evidence would not have been helpful to the
defendants (because the videos were consistent with the State’s witnesses’ testimony), the same
cannot be said here. According to defendant, the video in this case was of poor quality and
necessitated the jury’s close, unimpeded view. The video depicted many things happening, but
the view was obstructed by snow or ice and the video had no sound. Also, defendant notes that
the events depicted formed the basis of a number of discrete charges: an alleged drug transaction,
defendant’s driving away from the scene, the attempted murder of one officer, and the battery of
three other officers. In contrast to the videos at issue in the case law, he argues, the video here
required that the jury be able to control its playback and discuss the events while they unfolded
on the video. That the jury could discuss the video in the jury room afterward was no substitute
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for being able to deliberate openly and freely while watching the video. Further, defendant notes
that a laptop was available, which the jury requested to view the video, and that the court could
have instructed the jurors not to use it for any improper purposes, such as research. Instead, the
court chose a manner that deprived him of his right to a fair and impartial jury.
¶ 156 Defendant’s second claim of error is that restricting the jury to a single viewing of the
video was improper and prejudicial. He argues that the jury was entitled to replay the choppy
video, pause it, and discuss its contents as it saw fit. It was key evidence, in his view, and the
court’s refusal to allow the jury to view it more than once was unquestionably prejudicial,
because the court itself overturned part of the jury’s verdict after it repeatedly viewed both
versions of the video. Thus, the court itself found it useful to view both versions of the video
and to view them multiple times. Had the jury been able to view the video multiple times,
defendant contends, it might have acquitted him of attempted murder and other counts. The
court’s restriction was, thus, improper and prejudicial. Further, as defendant notes, though the
court noted that the time on the video was not accurate and it admonished the jury not to use it to
“count seconds,” the court itself found that the video showed defendant driving backward and
forward for, at most, a few seconds. 2
¶ 157 Defendant’s third and final claim of error is that the trial court erred in admonishing the
jury about how much weight to give to the video, specifically stating that the jury should not
“over-emphasize” that exhibit over other evidence. Defendant asserts that the court’s comments
violated the jury’s exclusive right to decide how much weight to give the evidence. See, e.g.,
2
In ruling on defendant’s posttrial motion, the court commented, “While the video time
counter may be inaccurate to the entire incident, from the backing up, to the leaving, to the
leaving down the berm is at most a very few seconds.”
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People v. Collins, 106 Ill. 2d 237, 261-62 (1985) (determinations of credibility and weight to
give to the testimony of witnesses are exclusively within the province of the trier of fact). The
jury was entitled, he notes, to give the video whatever weight or emphasis that it determined was
merited. When the trial court instead informed the jury that it should not emphasize the video
over other evidence, this effectively discouraged the jury’s reliance on it. Furthermore,
defendant notes, most of the other exhibits were sent to the jury room and the court could not
control how many times the jury reviewed those exhibits. The court’s admonishments were
particularly misguided, according to defendant, because video recordings can present an
objective view of a case. The jury alone, he urges, was entitled to decide the significance of the
video when reaching its verdict. The court’s comments here, given its great influence over the
jury, likely diminished the value of the video in the jurors’ minds.
¶ 158 Finally, defendant maintains that he suffered prejudice from the court’s restrictions on the
jury’s viewing of the video and from the court’s erroneous admonishments regarding the weight
to be given to that evidence. The video was critical evidence to both sides at trial, and it related
to each of the counts. It depicted part of the alleged narcotics transaction and showed
defendant’s departure from the scene, which was the basis of the charges of attempted first-
degree murder, aggravated battery, and aggravated fleeing. Also, unlike in McKinley and
Johnson, the video was of poor quality and the lens was partly obstructed. In order to reach
decisions on the various charges, the jury had to consider the actions of multiple people and
vehicles that were moving at the same time. Also, unlike in the case law, the video did not
unequivocally support the testimony of the State’s witnesses. He points to the fact that the video
does not show Stankowitz placing his hands on the hood of the Cadillac, as he had stated in his
testimony, or the Cadillac striking the blue minivan or Cabrales. Finally, defendant argues that
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the most telling indication of prejudice is that the court expressly relied on the video when
overturning part of the jury’s verdict, finding that defendant lacked the requisite specific intent to
kill Stankowitz. Had the jury been permitted to have the video in the jury room, defendant
asserts, it might have acquitted him on this count and other charges.
¶ 159 The State responds that the majority of the case law is not in defendant’s favor and that,
here, there was no attempt to influence the jury or any resulting prejudice. The State notes that
neither the State nor defendant attempted to communicate with the jurors. Further, the trial court
merely relayed the reviewing procedure to the jurors and noted that, if the video were sent to the
jury room, the jurors could view it “a thousand times” and there was no other evidence that could
be viewed that way. The court also properly advised that no single piece of evidence should be
overemphasized.
¶ 160 We conclude that there was error in the trial court’s limiting the jury’s access to the video
during deliberations. As noted, the circumstances here are unlike those in the cases we discussed
above. First, this case does not involve technical issues with replaying the video. Second (and
the critical distinction), none of the cases involved a video that undisputedly lacked clear images
and did not play in real time. Given the qualitative limitations of the video in this case, we
conclude that the court abused its discretion in limiting access to the video. Cf. Rouse, 2014 IL
App (1st) 121462, ¶¶ 78-82 (although the better approach would have been to allow the jury to
view the video in the jury room, no abuse of discretion where technical difficulties prohibited
doing so and the trial court admonished the jurors that they could view the video as many times
as they wished in the courtroom in the presence of third parties). We find support for our
conclusion in the court’s comments, in its ruling on defendant’s posttrial motion, that it viewed
both versions of the video several times before it determined that the evidence (including
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Stankowitz’s testimony, which it discounted in light of the video) was not sufficient to sustain
the attempted-murder verdicts. In addressing its analysis of the attempted-murder charges, the
court commented:
“The video itself is choppy when viewing this particular situation. I viewed it
several times, both videos, to get a very good—to try to see what information I could
glean from the admitted videos; and, again, the time lapse on the trial counter was not
accurate as to the time, so that was not helpful. And, again, the video is somewhat
choppy. I did see an officer there. I did see, I think it was, an officer, a person move a
step or so backwards from the car before the car went down the embankment.”
(Emphasis added.)
¶ 161 It is troubling that, in assessing the jury’s request for the video, the court ignored the
video’s poor quality and the limitations it presented. As confirmed by the court’s posttrial
comments and our own viewing of the video, it is difficult to ascertain the events depicted.
Thus, the only reasonable approach would have been to allow unrestricted access.
¶ 162 We also agree with defendant that some of the court’s admonishments to the jury were an
abuse of discretion and prejudicial. The court instructed the jury:
“Let me explain a little bit, just so you understand, and the reason I am doing it
this way is because in my experience, if you send the video back there, that it could be
viewed a thousand times. Now, there is no other evidence that you are going to view a
thousand times, just that evidence. That’s—there is no other evidence you are going to
view twice like you are the video in this matter or this particular video.
I don’t think it’s fair to the parties to overemphasize one piece of evidence over
any other piece of evidence. That’s how this thing gets played out.
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If you asked me if could [sic] bring some other witnesses and put them back on
the stand, see, we couldn’t do that. We can’t do—you can’t be given that more than
one—more than the time that they are allowed to you, so we will do it once. I understand
that it’s significant. I find it’s fair. We can do it one time.
It’s not fair for any lawyers to say anything or the defendant to say anything. We
are just going to view it in silence. When we are done, we will send you back to the jury
room to further your deliberations.” (Emphases added.)
¶ 163 We conclude that the trial court’s comments violated the jury’s exclusive right to decide
how much weight to give the video. “The right to a trial by jury is a fundamental right
guaranteed by our federal and state constitutions.” See, e.g., People v. Bracey, 213 Ill. 2d 265,
269 (2004). It was highly improper for the court to comment or opine on how much emphasis
the jury should place on the video and to note that it was “significant,” because the comments
interfered with the jury’s exclusive fact finding role. Furthermore, it was the jury’s prerogative
to look at the video as many times as it wished.
¶ 164 We agree with defendant that prejudice was shown here, where the jury convicted
defendant of attempted murder, convictions that the trial court, upon further multiple viewings of
both versions of the video, reversed for lack of sufficient evidence. The video was, thus, clearly
critical evidence. As defendant notes, although the video shows the Cadillac traveling in reverse
toward the blue minivan, it does not show it hitting Cabrales.
¶ 165 Finally, we wish to comment on Hollahan. That opinion reflects the Third District’s
evolution on the issue of courtroom video replays. Although we take no position on its holding,
we believe that Hollahan makes a compelling case that courtroom replays in the presence of
third parties are, in themselves, inherently prejudicial and inhibit the jury’s deliberations.
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2019 IL App (2d) 170149
Although the case before us presents additional circumstances that warrant finding error, we
acknowledge that the issues that Hollahan raises―such as the recurrence of technical issues, the
distinction between a live trial (where all parties are present) and jury deliberations (which are
limited only to jurors), and the jury’s lack of control over the replay (which, the Hollahan court
compellingly argues, inherently inhibits deliberations)―warrant further consideration of the
mode and manner in which a jury is given access to evidence in this state. We need not decide
whether all courtroom replays in the presence of third parties are inherently prejudicial, because,
again, this case presents unique and egregious circumstances.
¶ 166 2. Second-Prong Plain Error
¶ 167 Having determined that there was error in the manner in which the trial court played the
video for the jury during deliberations, we turn next to the second prong of plain-error review.
¶ 168 Defendant argues that the trial court’s limitations on the jury’s viewing of the video were
clear and obvious error and that, under the second prong of plain-error review, the error was so
grave that it undermined the fairness of his trial and challenged the integrity of the judicial
process. Defendant argues that the trial court intruded upon the privacy and secrecy of jury
deliberations by requiring the jury to view the video silently, in open court, and in the presence
of the judge, the parties, and any spectators. Hollahan, 2019 IL App (3d) 150556, ¶ 29; see also
McKinley, 2017 IL App (3d) 140752, ¶ 35 (O’Brien, J., specially concurring); id. ¶ 44
(Holdridge, P.J., dissenting); Johnson, 2015 IL App (3d) 130610, ¶ 49 (McDade, P.J.,
dissenting). Moreover, defendant contends, the court further erred by curtailing the jury’s
evaluation of the video by allowing only a single viewing and then admonishing the jury that
repeated viewings would be unnecessary—even though the court itself viewed the video multiple
times and relied on it in overturning part of the jury’s verdict. The error here, defendant urges,
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2019 IL App (2d) 170149
was far more egregious than any error in McKinley and Johnson, where the courts did not find
plain error. Here, the error invaded the secrecy of deliberations and the jury’s evaluation of key
evidence. Because the court’s ruling fundamentally deprived defendant of a fair trial, he argues,
the error warrant review under the second prong of plain error.
¶ 169 An error is generally considered structural when it renders a criminal trial fundamentally
unfair or unreliable in determining guilt or innocence. People v. Glasper, 234 Ill. 2d 173, 196
(2009). The United States Supreme Court has found structural error in a limited class of cases,
including those involving complete denial of counsel, denial of self-representation at trial, trial
before a biased judge, denial of a public trial, racial discrimination in the selection of a grand
jury, and a defective reasonable-doubt instruction. People v. Thompson, 238 Ill. 2d 598, 609
(2010) (citing Washington v. Recuenco, 548 U.S. 212, 218 n.2 (2006)). Our supreme court has
noted that plain error is not restricted to the types of structural errors recognized by the Supreme
Court. It has held that the failure to apply the one-act, one-crime rule and the failure to exercise
discretion in denying a request for a continuance constituted second-prong plain error. See
People v. Clark, 2016 IL 118845, ¶ 25 (citing cases).
¶ 170 Having concluded that error occurred here, we further hold that there was second-prong
plain error. The failure to allow for proper jury deliberations, and the resulting prejudice, was
clearly serious, undermined the fairness of defendant’s trial, and challenged the integrity of the
judicial process. Hollahan, 2019 IL App (3d) 150556, ¶ 29; Henderson, 2017 IL App (3d)
150550, ¶ 48. In any event, in Olano, the Supreme Court noted that “[t]here may be cases where
an intrusion should be presumed prejudicial.” Olano, 507 U.S. at 739. This case presents such a
scenario. The video’s poor quality required that the jury be given at least some control over the
replay, and the trial court’s admonishment not to overemphasize the video invaded the jury’s
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2019 IL App (2d) 170149
exclusive factfinding role (see Bracey, 213 Ill. 2d at 269). Under the unique facts of this case,
the mode and manner in which the video was replayed, coupled with the trial court’s comments
touching upon the weight to be given the evidence, intruded upon the jury’s review and
evaluation of key evidence and the error was so egregious as to constitute second-prong plain
error.
¶ 171 B. Police Uniform
¶ 172 Next, defendant argues that his conviction of aggravated fleeing or attempting to elude a
peace officer should be reversed because the State failed to prove the essential element that the
officer was wearing a “police uniform.” 625 ILCS 5/11-204(a) (West 2012). For the following
reasons, we reject his argument.
¶ 173 In a challenge to the sufficiency of evidence, a reviewing court will not substitute its
judgment for that of the trier of fact and will not reverse a conviction if, viewing the evidence in
the light most favorable to the prosecution, any rational trier of fact could have found the
defendant guilty beyond a reasonable doubt. People v. Ortiz, 196 Ill. 2d 236, 259 (2001).
“Reasonable doubt exists as a matter of law when the State fails to prove an essential element of
the offense.” People v. Fountain, 2011 IL App (1st) 083459-B, ¶ 13.
¶ 174 Further, in resolving an issue of statutory construction, the court’s objective involves
ascertaining and carrying out the “true intent and meaning of the legislature evidenced by the
language used.” Langendorf v. City of Urbana, 197 Ill. 2d 100, 109 (2001). Indeed, our inquiry
“always begin[s] with the language of the statute, which is the surest and most reliable indicator
of legislative intent.” People v. Pullen, 192 Ill. 2d 36, 42 (2000). We give undefined statutory
words and phrases their natural and ordinary meanings. Id. And we enforce the clear and
unambiguous language as written, without resort to other aids of construction, e.g., legislative
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2019 IL App (2d) 170149
history. People v. Fitzpatrick, 158 Ill. 2d 360, 364-65 (1994). The construction of a statute is a
question of law, which we review de novo. People v. Starks, 2019 IL App (2d) 160871, ¶ 26.
¶ 175 Here, the State needed to prove that defendant was a “driver or operator of a motor
vehicle who, having been given a visual or audible signal by a peace officer directing such driver
or operator to bring his vehicle to a stop, wilfully *** fle[d] or attempt[ed] to elude the officer”
(625 ILCS 5/11-204(a) (West 2012)) “and such flight or attempt to elude *** cause[d] bodily
injury to any individual” (id. § 11-204.1(a)(2)). Further, “[t]he signal given by the peace officer
may be by hand, voice, siren, [or] red or blue light. Provided, the officer giving such signal shall
be in police uniform[.]” (Emphasis added.) Id. § 11-204(a).
¶ 176 The statute has been strictly construed. See People v. Maxey, 2018 IL App (1st) 130698-
B, ¶¶ 120-21 (reversing conviction where evidence did not show what the officers were wearing
at the time of the stop); People v. Williams, 2015 IL App (1st) 133582, ¶¶ 14, 16 (because statute
requires pursuing officer be in police uniform, reversing conviction where officer testified that he
wore “ ‘ civilian dress’ ” and noting operative concern “is not whether [the defendant] knew the
police were following him; but rather, whether the requirements of the statute have been met”);
People v. Murdock, 321 Ill. App. 3d 175, 176 (2001) (reversing conviction where no evidence
was presented concerning the officer’s clothing and rejecting argument that the defendant should
have known pursuer was a police officer because lights and siren were activated).
¶ 177 Here, defendant contends that none of the officers who first approached him in the
McDonald’s parking lot wore police uniforms. Carrillo, Gonzales, Selvik, and Lizotte were
acting undercover and, thus, wore plainclothes. Lizotte testified that he wore a shirt, tie, and
jacket and a badge on his belt. Defendant further notes that the four officers on the primary
arrest team—Schuldt, Stankowitz, Murphy, and Bognetti—were dressed similarly in jeans and
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2019 IL App (2d) 170149
police vests. The three officers who arrived in the blue minivan—Cabrales, Murray, and
Ostrem—also did not wear police uniforms, defendant argues. Cabrales stated that he wore a
black shirt, a life vest―both of which had the word “police” written on them―jeans, a beanie
cap, a badge, and a police lanyard with his ID.
¶ 178 The vests with police markings, defendant believes, did not transform the officers’ attire
into uniforms. Wearing a police vest over civilian clothing, in his view, did not demonstrate the
distinctive or characteristic design of police uniforms. Further, even if defendant knew that the
people ordering him to stop were officers, his knowledge was irrelevant because the statute’s
plain language mandates that the officer giving the signal to stop be in a police uniform. He also
notes that in closing argument the State did not identify any evidence that the officers wore
police uniforms. Thus, defendant argues, his conviction should be reversed.
¶ 179 In response, the State argues that the term “police uniform” logically includes vests and
other such clothing that are clearly labeled with the word “police,” as well as badges, police
radios, police stars, and police-issued gun belts, which civilians would not be wearing. It also
contends that not all officers wear patrol-type uniforms while working.
¶ 180 Defendant replies that tactical vests and assorted clothing with “police” written on them
do not amount to the type of distinctive or characteristic clothing worn by police officers on a
day-to-day basis. Instead, the officers’ tactical clothing and accessories were worn for the
purpose of an undercover reverse-buy drug operation. Also, the statute, defendant notes, is
distinct from others that merely require that the defendant knew that the person was a police
officer. See People v. Ruiz, 312 Ill. App. 3d 49, 57-58 (2000) (affirming conviction of attempted
murder of a police officer where the defendant “knew or should have known” that people
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2019 IL App (2d) 170149
pursuing him after a bank robbery were police officers, as evidenced, in part, by his statement
following the pursuit that “these cops [are] trying to kill me”).
¶ 181 We conclude that a vest with police markings can, under certain circumstances, constitute
a police uniform under the statute and that the totality of the evidence here was sufficient to
establish this element of the offense. We reject defendant’s argument that only a traditional
police uniform satisfies the statutory requirement in all circumstances. The statute includes this
requirement because it ensures that the defendant is fleeing or eluding an actual police officer.
Cf. People v. Hansen, 2019 IL App (3d) 170302, ¶ 14 (“purpose of requiring use of a vehicle’s
‘illuminated oscillating, rotating or flashing red or blue lights’ with a siren is so that they ‘would
indicate the vehicle to be an official police vehicle’ ”).
¶ 182 Given our reading of the statute and the factual circumstances here, we conclude that the
evidence was sufficient to sustain defendant’s conviction. As relevant here, Stankowitz was the
only nonundercover officer in defendant’s range of vision (he testified that he made eye contact
with defendant) who gave defendant a signal to stop his car. He stated that he wore a sweater, a
black tactical vest with police markings on the front and back, and a badge around his neck. He
also had a firearm on his right hip. Thus, with the evidence viewed in the light most favorable to
the State, defendant saw an individual wearing a vest with police markings, wearing a badge
around his neck, announcing “police” to defendant, and ordering him to stop. The foregoing
occurred in daylight, in a public place, and with civilians present. The only reasonable inference,
in our view, is that Stankowitz was a peace officer in a police uniform.
¶ 183 In summary, a vest with police markings can, under certain circumstances, constitute a
police uniform under the statute and, here, there was sufficient evidence on this element to
sustain defendant’s conviction.
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2019 IL App (2d) 170149
¶ 184 III. CONCLUSION
¶ 185 For the reasons stated, the judgment of the circuit court of Kane County is reversed and
the cause is remanded for a new trial.
¶ 186 Reversed and remanded.
- 55 -
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United States Court of Appeals
For the Eighth Circuit
___________________________
No. 15-1099
___________________________
William Muiruri
lllllllllllllllllllllPetitioner
v.
Loretta E. Lynch
lllllllllllllllllllllRespondent
____________
Petition for Review of an Order of the
Board of Immigration Appeals
____________
Submitted: September 22, 2015
Filed: October 14, 2015
____________
Before LOKEN, BENTON, and SHEPHERD, Circuit Judges.
____________
BENTON, Circuit Judge.
The Board of Immigration Appeals found William Muiruri removable under
INA § 237(a)(3)(D), 8 U.S.C. § 1227(a)(3)(D). He appeals. Having jurisdiction
under 8 U.S.C. § 1252, this court denies the petition.
Muiruri, a native of Kenya, overstayed his student visa. Immigration officials
apprehended him. In a sworn statement, Muiruri admitted to falsely representing
himself as a U.S. citizen. The Department of Homeland Security charged him with
two counts of removability: (1) overstaying his visa in violation of INA
237(a)(1)(C)(I), and (2) falsely representing himself as a U.S. citizen in violation of
INA 237(a)(3)(D). He applied for adjustment-of-status based on marriage to a U.S.
citizen. The immigration judge held four hearings and issued one relevant order.
At the first hearing, the judge informed Muiruri of the statutory rights in
8 C.F.R. § 1240.10(a). At the second hearing, he entered pleadings as required by
§ 1240.10(c). Muiruri conceded the first count of removability, but denied falsely
representing himself as a U.S. citizen—which would ban him from reentering the
United States. The judge then scheduled a “removal hearing” on the false-
representation and adjustment-of-status claims.
A month before the removal hearing, Muiruri filed a “Motion to Suppress.” He
argued he had been illegally searched and seized, and his sworn statement coerced.
He further alleged a lack of sufficient evidence for the false-representation charge.
In the Motion’s prayer for relief, Muiruri requested that the judge either suppress all
evidence from the unlawful search, seizure, and interrogation, or order an evidentiary
hearing on the Motion. Finally, Muiruri requested that “should the Court decide
against either of the above, it should consider the evidence and argument presented
herein as it relates to a finding under INA 237(a)(3)(D) (False claim to citizenship).”
Two weeks later, the government submitted “to be considered by the Immigration
Court at [Muiruri’s] hearing” I-9 forms and an employment application. In each,
Muiruri checked the box indicating U.S. citizenship. On March 14, 2013—a week
before the removal hearing—the immigration judge issued an order denying the
Motion to Suppress and finding a violation of INA 237(a)(3)(D).
On March 22—the originally scheduled “removal hearing”—Muiruri
acknowledged that the March 14 decision mooted his adjustment-of-status claim.
The immigration judge granted Muiruri’s request for a fourth and final hearing.
-2-
There, Muiruri told the immigration judge he would not pursue a withholding-of-
removal claim but would appeal the March 14 decision. The BIA affirmed.
This court has jurisdiction to review the BIA’s decisions. 8 U.S.C. § 1252.
Where, as here, the BIA adopts the immigration judge’s opinion and adds reasoning
and analysis, this court reviews both decisions. La v. Holder, 701 F.3d 566, 570 (8th
Cir. 2012). Review is limited to the administrative record. § 1252(b)(4)(A). This
court reviews factual findings for substantial evidence. Bernal-Rendon v. Gonzales,
419 F.3d 877, 880 (8th Cir. 2005). A finding is supported by substantial evidence
unless the record would compel a reasonable fact-finder to reach the contrary
conclusion. § 1252(b)(4)(B). Questions of law and constitutional questions are
reviewed de novo; the BIA’s interpretation of immigration laws and regulations
receives substantial deference. See Habchy v. Gonzales, 471 F.3d 858, 862 (8th Cir.
2006); Bernal-Rendon, 419 F.3d at 880.
I.
Muiruri argues that he was denied a merits hearing on the false-representation
charge in violation of the Fifth Amendment’s due process clause, the INA, and
agency regulations.
Aliens “are entitled to the Fifth Amendment’s guarantee of due process of law
in deportation proceedings,” which means that proceedings must be “fundamentally
fair.” Al Khouri v. Ashcroft, 362 F.3d 461, 464 (8th Cir. 2004), citing Reno v.
Flores, 507 U.S. 292, 306 (1993). The alien must have the opportunity to fairly
present evidence, offer arguments, and develop the record. Tun v. Gonzales, 485
F.3d 1014, 1025 (8th Cir. 2007), citing 8 U.S.C. § 1229a(b)(4)(B), 8 C.F.R.
§ 1240.10(a)(4). A due process violation requires both a fundamental procedural
error and actual prejudice. Al Khouri, 362 F.3d at 466.
-3-
Under the INA and implementing regulations, the immigration judge “shall
direct a hearing on the issues” if an alien denies a charge of removability. 8 C.F.R.
§ 1240.10(c). And, the removal decision must be based on “evidence produced at the
hearing.” 8 U.S.C. § 1229a(c)(1)(A).
According to Muiruri, the immigration judge violated due process, the INA,
and agency regulations by issuing the false-representation decision before the
removal hearing. Muiruri further contends that the lack of a hearing prejudiced him
by precluding him from cross-examining witnesses and entering evidence.
Each argument has been forfeited. In Muiruri’s Motion, the “Prayer for Relief”
states:
For the foregoing reasons, the Respondent respectfully
requests that the Court suppress all evidence obtained
during or as a result of the unlawful search and seizure and
interrogation, i.e. questioning when intoxicated. In the
alternative, this Court should order an evidentiary hearing
to determine whether to grant this Motion to Suppress.
Finally, should the Court decide against either of the
above, it should consider the evidence and argument
presented herein as it relates to a finding under INA
237(a)(3)(D) (False claim to citizenship).
The immigration judge denied the Motion to Suppress, denied the request for a
hearing on it, and granted Muiruri’s third request—a decision on the false-
representation charge based on the evidence presented in the Motion. Muiruri never
objected to this course of action at the two later hearings. He did not ask for a
hearing, complain that he had not received a hearing, or in any way indicate he
wanted a hearing.
-4-
“An error . . . even one affecting a constitutional right, is forfeited—that is, not
preserved for appeal—‘by the failure to make timely assertion of the right.’” United
States v. Pirani, 406 F.3d 543, 549 (8th Cir. 2005) (en banc), quoting United States
v. Olano, 507 U.S. 725, 731 (1993). The possibility of forfeiture discourages “the
practice of ‘sandbagging’: suggesting or permitting, for strategic reasons, that the
trial court pursue a certain course, and later—if the outcome is
unfavorable—claiming that the course followed was reversible error.” Freytag v.
Commissioner, 501 U.S. 868, 895 (1991) (Scalia, J., concurring). Here, Muiruri
requested the immigration judge to follow a certain course; the judge did so and
Muiruri did not object.
Because Muiruri forfeited his right to a hearing, his due process, statutory, and
regulatory violation arguments fail.1
II.
The government bears the burden of proving “by clear and convincing
evidence” that an alien is deportable. 8 U.S.C. § 1229a(c)(3)(A). An alien is
deportable if he “falsely represents, or has falsely represented, himself to be a citizen
of the United States for any purpose or benefit under this chapter . . . or any Federal
or State law. . . .” 8 U.S.C. § 1227(a)(3)(D)(i). Muiruri challenges the false-
representation finding for lack of substantial evidence, asserting that the judge should
not have relied on the submitted I-9 forms.
1
Muiruri also contends that because 8 C.F.R. § 1240.10(c) protects
fundamental rights, he only needs to prove a violation, and not prejudice. See
discussion in Leslie v. Attorney Gen., 611 F.3d 171, 175-80 (3d Cir. 2010), cited in
Puc-Ruiz v. Holder, 629 F.3d 771, 780 (8th Cir. 2010). Even assuming all of
Muiruri’s premises, he did not raise this argument to the BIA. The argument has not
been preserved and is not addressed by this court. See Martinez Carcamo v. Holder,
713 F.3d 916, 925 (8th Cir. 2013).
-5-
“[A]n alien who marks the ‘citizen or national of the United States’ box on a
Form I-9 for the purpose of falsely representing himself as a citizen to secure
employment with a private employer has falsely represented himself for a purpose or
benefit under the [INA].” Rodriguez v. Mukasey, 519 F.3d 773, 778 (8th Cir. 2008)
(emphasis added). This marking alone, however, does not necessarily establish a
false representation as a citizen. Mayemba v. Holder, 776 F.3d 542, 545 (8th Cir.
2015). “Because the I-9 form is phrased in the disjunctive, it is theoretically possible
that an alien who has checked the ‘citizen or national’ box has not represented
himself to be a citizen.” Hashmi v. Mukasey, 533 F.3d 700, 703-04 (8th Cir. 2008).2
Despite the disjunctive “citizen or national” box on an I-9 form, additional
evidence may support a finding that the alien had the purpose of representing himself
as a citizen (not a national). Mayemba, 776 F.3d at 546. Here, the government
submitted an employment application where Muiruri checked the “yes” box in
response to the question: “Are you a citizen of the United States?” Muiruri also
admitted, in a sworn statement, falsely representing himself as a U.S. citizen. The
record as a whole does not compel the conclusion that Muiruri did not falsely
represent himself as a U.S. citizen.
*******
The petition for review is denied.
______________________________
2
In addition to the three disjunctive I-9 forms, the government submitted a
revised I-9 form where Muiruri checked the “U.S. citizen” box.
-6-
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IN THE SUPREME COURT OF NORTH CAROLINA
No. 150A18
Filed 16 August 2019
STATE OF NORTH CAROLINA
v.
BILLY DEAN MORGAN
Appeal pursuant to N.C.G.S. § 7A-30(2) from the decision of a divided panel of
the Court of Appeals, 814 S.E.2d 843 (N.C. Ct. App. 2018), affirming in part and
vacating and remanding in part judgments entered on 9 September 2016 by Judge
Jeffrey P. Hunt in Superior Court, McDowell County. Heard in the Supreme Court
on 8 April 2019.
Joshua H. Stein, Attorney General, by Brenda Eaddy, Assistant Attorney
General, for the State.
Glenn Gerding, Appellate Defender, by Sterling Rozear, Assistant Appellate
Defender, for defendant-appellant.
DAVIS, Justice.
The issue before us in this case is whether a trial court is permitted to revoke
a defendant’s probation after his probationary period has expired without making a
finding of fact that good cause exists to do so under the circumstances. Because we
conclude that such a finding is statutorily required, we reverse the decision of the
Court of Appeals and remand this matter for further proceedings.
Factual and Procedural Background
STATE V. MORGAN
Opinion of the Court
On 20 May 2013, defendant Billy Dean Morgan was indicted by a McDowell
County Grand Jury on two counts of assault with a deadly weapon inflicting serious
injury. A hearing was held in Superior Court, McDowell County on 28 August 2013
before the Honorable J. Thomas Davis at which defendant pled no contest to those
charges. The court sentenced him to consecutive terms of twenty-nine to forty-seven
months of imprisonment, suspended the sentences, and placed him on supervised
probation for thirty-six months.
Defendant’s probation officer, Christopher Poteat, filed violation reports on 12
May 2016 alleging that defendant had willfully violated the terms of his probation by
(1) failing to report to Officer Poteat; (2) failing to pay money owed to the clerk of
superior court; (3) failing to pay probation supervision fees; and (4) committing a new
criminal offense. A warrant for defendant’s arrest for felony probation violations was
issued on that same date. On 23 May 2016, Officer Poteat filed an additional violation
report in which he asserted that defendant had absconded his probation. Defendant
was subsequently arrested for violating terms of his probation.
Defendant’s probationary term expired on 28 August 2016. Twelve days later,
a hearing was held in Superior Court, McDowell County before the Honorable Jeffrey
P. Hunt. At the hearing, defendant’s counsel admitted that defendant had “violated
probation by failing to report, failing to pay money and supervision fees, and being
convicted of a new crime while on probation and absconding.” Officer Poteat testified
that defendant had missed two consecutive appointments with him in May 2015. He
-2-
STATE V. MORGAN
Opinion of the Court
further stated that defendant “started going downhill” in October 2015 and “missed
appointments on November 10, February 3, and February 29 that all had to be
rescheduled.”
In addition, Officer Poteat testified that defendant had been admitted to Grace
Hospital on 29 March 2016 and remained in that facility’s mental health ward until
19 April. According to Officer Poteat, defendant did not contact him until 1 May,
which was twelve days after his release from the hospital. On that date, Officer Poteat
instructed defendant to report to him the following Wednesday. When defendant
failed to show up for that appointment, Officer Poteat filed the 23 May probation
violation report alleging that he had absconded.
Defendant did not testify on his own behalf at the 9 September 2016 hearing,
but his counsel informed the trial court that his mental health problems had
worsened in May 2015 when his ten-year-old son was removed from his custody.
Defense counsel further stated that defendant was able to comply with the terms of
his probation when he was taking his medication. Defense counsel asked the court to
grant a continuance to give defendant, who was then employed, a chance to pay his
outstanding probation fees. In response, the trial court stated: “No, I am going to
revoke his probation for absconding and for the conviction. He will do the sentences
that were imposed by the original judgments.”
-3-
STATE V. MORGAN
Opinion of the Court
On that same date, the trial court entered judgments using AOC Form CR-607
revoking defendant’s probation and activating his suspended sentences. The
judgments contained the following pertinent findings:
The defendant is charged with having violated specific
conditions of the defendant’s probation as alleged in
the . . . Violation Report(s) on file herein, which is
incorporated by reference.
....
The condition(s) violated and the facts of each violation are
as set forth . . . in Paragraph(s) 1 of the Violation Report or
Notice dated 05/23/2016 [and] in Paragraph(s) 1-4 of the
Violation Report or Notice dated 05/12/2016.
....
The Court may revoke defendant’s probation . . . for the
willful violation of the condition(s) that he/she not commit
any criminal offense . . . or abscond from supervision[.]
The judgments concluded as follows:
Based upon the Findings of Fact set out on the reverse side,
the Court concludes that the defendant has violated a valid
condition of probation upon which the execution of the
active sentence was suspended, and that continuation,
modification or special probation or criminal contempt is
not appropriate, and the Court ORDERS that the
defendant’s probation be revoked, that the suspended
sentence be activated, and the defendant be imprisoned[.]
On 16 September 2016, defendant filed a handwritten pro se “Inmate
Grievance/Request Form” with the McDowell County Jail indicating his intention to
appeal from the 9 September judgments. Defendant’s filing, however, failed to
-4-
STATE V. MORGAN
Opinion of the Court
specifically identify both the rulings from which his appeal was being taken and the
court to which he intended to appeal. Defendant’s appellate counsel filed a petition
for writ of certiorari with the Court of Appeals on 30 May 2017 requesting “review of
the judgments and orders of the McDowell County Superior Court.” The Court of
Appeals determined that defendant had failed to file a legally valid notice of appeal
but allowed his petition for certiorari.
In seeking relief from the trial court’s judgments before the Court of Appeals,
defendant argued that the court erred by revoking his probation after the expiration
of his thirty-six-month probationary period by failing to make a specific finding that
it was doing so for “good cause shown and stated” as required by N.C.G.S. § 15A-
1344(f)(3). State v. Morgan, 814 S.E.2d 843, 847 (N.C. Ct. App. 2018). The majority
in the Court of Appeals rejected this contention, citing that court’s earlier decision in
State v. Regan, 253 N.C. App. 351, 800 S.E.2d 436 (2017), in which it concluded that
N.C.G.S. § 15A-1344(f)(3) does not require trial courts to make any specific findings
of good cause shown in order to properly revoke a defendant’s probation after the
expiration of his probationary term. Id. at 357, 800 S.E.2d at 440. In Regan, the Court
of Appeals determined that a finding of good cause could be inferred from the
transcript of the defendant’s probation violation hearing and the judgments entered
by the court. See id. at 358, 800 S.E.2d at 440–41 (“Both the transcript of the
probation violation hearing and the judgments entered reflect that the trial court
considered the evidence and found good cause to revoke Defendant’s probation.”).
-5-
STATE V. MORGAN
Opinion of the Court
Noting that it was bound by its prior decision in Regan, Morgan, 814 S.E.2d at
847, the Court of Appeals majority held that the trial court did not err by revoking
defendant’s probation after the expiration of his probationary term, concluding that:
[A]t the hearing, defendant admitted all of the State’s
allegations. After hearing from Officer Poteat and
defendant’s attorney, the trial court announced its decision
to “revoke his probation for absconding and for the
conviction.” Consequently, “[b]oth the transcript of the
probation violation hearing and the judgments entered
reflect that the trial court considered the evidence and
found good cause to revoke” defendant’s probation.
Id. at 848 (quoting Regan, 253 N.C. App. at 358, 800 S.E.2d at 440–41).1
In a dissenting opinion, Chief Judge McGee asserted that Regan was both in
conflict with this Court’s decision in State v. Bryant, 361 N.C. 100, 637 S.E.2d 532
(2006), and inconsistent with the text of N.C.G.S. § 15A-1344(f). Morgan, 814 S.E.2d
at 851–53. (McGee, C.J., dissenting). For these reasons, Chief Judge McGee would
have held that “the trial court was required to make a finding of fact that the State
demonstrated ‘for good cause shown and stated that [Defendant’s] probation should
be . . . revoked.’ ” Id. at 853 (alterations in original) (quoting N.C.G.S. § 15A-
1344(f)(3)). Defendant appealed as of right to this Court based upon the dissent.
Analysis
1 The Court of Appeals also vacated a civil judgment for costs and attorneys’ fees that
had been entered against defendant by the trial court based on its determination that
defendant was not provided notice and an opportunity to be heard on the final amount of
attorneys’ fees awarded. Morgan, 814 S.E.2d at 849. This portion of the Court of Appeals’
opinion, however, is not currently before us.
-6-
STATE V. MORGAN
Opinion of the Court
The issue for resolution in this appeal is whether the Court of Appeals erred
by affirming the trial court’s revocation of defendant’s probation without making a
specific finding that good cause existed to do so despite the expiration of his
probationary period. For the reasons set out below, we conclude that the trial court’s
order failed to comply with N.C.G.S. § 15A-1344(f)(3).
This Court has made clear that a trial court “may, at any time during the
period of probation, require defendant to appear before it, inquire into alleged
violations of the conditions, and, if found to be true, place the suspended sentence
into effect.” State v. Camp, 299 N.C. 524, 527, 263 S.E.2d 592, 594 (1980) (citations
and emphasis omitted). But the trial court “may not do so after the expiration of the
period of probation except as provided in G.S. 15A-1344(f).” Id. at 527, 263 S.E.2d at
594 (citations and emphasis omitted).
Section 15A-1344(f) provides, in pertinent part:
(f) Extension, Modification, or Revocation after Period of
Probation. — The court may extend, modify, or revoke
probation after the expiration of the period of probation if
all of the following apply:
(1) Before the expiration of the period of probation
the State has filed a written violation report with
the clerk indicating its intent to conduct a hearing
on one or more violations of one or more conditions
of probation.
(2) The court finds that the probationer did violate
one or more conditions of probation prior to the
expiration of the period of probation.
-7-
STATE V. MORGAN
Opinion of the Court
(3) The court finds for good cause shown and stated
that the probation should be extended, modified,
or revoked.
N.C.G.S. § 15A-1344(f) (2017).
It is axiomatic that “[w]hen construing legislative provisions, this Court looks
first to the plain meaning of the words of the statute itself.” State v. Ward, 364 N.C.
157, 160, 694 S.E.2d 729, 731 (2010) (citation omitted). “When the language of a
statute is clear and without ambiguity, it is the duty of this Court to give effect to the
plain meaning of the statute, and judicial construction of legislative intent is not
required.” Diaz v. Div. of Soc. Servs., 360 N.C. 384, 387, 628 S.E.2d 1, 3 (2006)
(citation omitted); see also State v. Beck, 359 N.C. 611, 614, 614 S.E.2d 274, 277 (2005)
(“If the statutory language is clear and unambiguous, the court eschews statutory
construction in favor of giving the words their plain and definite meaning.” (citation
omitted)).
We are further guided in our decision by the canon of statutory construction
that a statute may not be interpreted “in a manner which would render any of its
words superfluous.” State v. Coffey, 336 N.C. 412, 417, 444 S.E.2d 431, 434 (1994)
(citations omitted). This Court has repeatedly held that “a statute must be considered
as a whole and construed, if possible, so that none of its provisions shall be rendered
useless or redundant. It is presumed that the legislature intended each portion to be
given full effect and did not intend any provision to be mere surplusage.” Porsh
Builders, Inc. v. City of Winston-Salem, 302 N.C. 550, 556, 276 S.E.2d 443, 447 (1981)
-8-
STATE V. MORGAN
Opinion of the Court
(citations omitted).
In State v. Bryant, this Court construed language in a prior version of N.C.G.S.
§ 15A-1344(f) in connection with the revocation of a defendant’s probation following
the expiration of her probationary period. At the time Bryant was decided, N.C.G.S.
§ 15A-1344(f) provided, in relevant part:
(f) Revocation after Period of Probation. — The court may
revoke probation after the expiration of the period of
probation if:
(1) Before the expiration of the period of probation
the State has filed a written motion with the clerk
indicating its intent to conduct a revocation
hearing; and
(2) The court finds that the State has made reasonable
effort to notify the probationer and to conduct the
hearing earlier.
N.C.G.S. § 15A-1344(f) (2005) (emphasis added) (amended 2008).
In Bryant, the trial court activated the defendant’s suspended sentence seventy
days after the expiration of her period of probation “without making a finding that
the State had exerted reasonable efforts to conduct a hearing before the expiration of
the probationary period.” 361 N.C. at 104–05, 637 S.E.2d at 536. On appeal to this
Court, the State argued that, despite the absence of an express finding of fact on that
issue, the record contained evidence that would have supported such a finding and
that, as a result, the order was in compliance with N.C.G.S. § 15A-1344(f). Id. at 103,
637 S.E.2d at 535.
-9-
STATE V. MORGAN
Opinion of the Court
We rejected the State’s argument and held that the statutory language “[t]he
court finds” contained in N.C.G.S. § 15A-1344(f)(2) required the trial court to make a
specific finding of fact. Id. at 104–05, 637 S.E.2d at 536. We further held that this
requirement was not satisfied simply because evidence existed in the record that
could have supported such a finding. Id. at 103–04, 637 S.E.2d at 534–35. We
explained our reasoning as follows:
In analyzing this statute, we use accepted principles of
statutory construction by applying the plain and definite
meaning of the words therein, as the language of the
statute is clear and unambiguous. The statute
unambiguously requires the trial court to make a judicial
finding that the State has made a reasonable effort to
conduct the probation revocation hearing during the period
of probation set out in the judgment and commitment.
....
The State argues that the unsworn remarks of
defendant’s counsel, along with the scheduled hearing date
noticed on defendant’s probation violation report, satisfy
the statutory requirement. . . . Although this argument is
creative, it is contrary to the explicit statutory requirement
that “the court find . . . the State has made reasonable
effort to notify the probationer and to conduct the hearing
earlier.” The statute makes no exception to this finding of
fact requirement based upon the strength of the evidence
in the record.
Id. at 102–03, 637 S.E.2d at 534–35 (footnote and internal citations omitted).
We addressed a similar issue in State v. Coltrane, 307 N.C. 511, 299 S.E.2d 199
(1983), in which the trial court revoked the defendant’s probation without affording
her the opportunity to confront adverse witnesses at the probation revocation
-10-
STATE V. MORGAN
Opinion of the Court
hearing. Id. at 513, 299 S.E.2d at 201. The controlling statute stated that a defendant
at a probation revocation hearing is entitled to “confront and cross-examine adverse
witnesses unless the court finds good cause for not allowing confrontation.” Id. at 513,
299 S.E.2d at 201 (emphasis added). Because “[n]o findings were made [by the trial
court] that there was good cause for not allowing confrontation,” we held that the trial
court failed to comply with this statutory requirement and therefore reversed the
decision of the Court of Appeals affirming the trial court’s revocation order. Id. at 516,
299 S.E.2d at 202.
In the present case, it is undisputed that the trial court’s 9 September 2016
judgments contained no findings referencing the existence of good cause to revoke
defendant’s probation despite the expiration of his probationary term. Indeed, the
record is devoid of any indication that the trial court was even aware that defendant’s
probationary term had already expired when it entered its judgments.
We conclude that both the plain language of N.C.G.S. § 15A-1344(f)(3) and our
prior decisions in Bryant and Coltrane compel the conclusion that the trial court erred
by activating defendant’s sentences without first making such a finding. While
Bryant and Coltrane concerned different statutory provisions than the one at issue
here, both cases support the proposition that when the General Assembly has
inserted the phrase “the court finds” in a statute setting out the exclusive
circumstances under which a defendant’s probation may be revoked, the specific
finding described in the statute must actually be made by the trial court and such a
-11-
STATE V. MORGAN
Opinion of the Court
finding cannot simply be inferred from the record. See Bryant, 361 N.C. at 102–03,
637 S.E.2d at 534–35; Coltrane, 307 N.C. at 516, 299 S.E.2d at 202.
Our conclusion fully comports with the principles of statutory construction set
out above. Were we to hold, as the State argues, that N.C.G.S. § 15A-1344(f)(3) does
not require a specific finding of good cause to revoke a defendant’s probation after his
probationary period has ended as long as the court has found that the defendant
violated a condition of probation, subsection (f)(3) would be rendered superfluous.
Subsection (f)(2) of N.C.G.S. § 15A-1344 makes clear that in order to revoke a
defendant’s probation following the expiration of his probationary term, the trial
court must first make a finding that the defendant did violate a condition of his
probation. After making such a finding, trial courts are then required by subsection
(f)(3) to make an additional finding of “good cause shown and stated” to justify the
revocation of probation even though the defendant’s probationary term has expired.
Thus, by contending the trial court’s determination that defendant did, in fact,
violate conditions of his probation simultaneously satisfied subsections (f)(2) and
(f)(3), the State incorrectly conflates two separate and distinct findings that must be
made by the trial court under these circumstances. As such, the State’s argument is
inconsistent with well-settled rules for interpreting statutes. See, e.g., Lunsford v.
Mills, 367 N.C. 618, 628, 766 S.E.2d 297, 304 (2014) (“[I]t is a fundamental principle
of statutory interpretation that courts should ‘evaluate [a] statute as a whole
and . . . not construe an individual section in a manner that renders another provision
-12-
STATE V. MORGAN
Opinion of the Court
of the same statute meaningless.’ ” (alterations in original) (quoting Polaroid Corp. v.
Offerman, 349 N.C. 290, 297, 507 S.E.2d 284, 290 (1998), cert. denied, 526 U.S. 1098
(1999), abrogated on other grounds by Lenox, Inc. v. Tolson, 353 N.C. 659, 548 S.E.2d
513 (2001)); Coffey, 336 N.C. at 418, 444 S.E.2d at 434 (“We construe each word of a
statute to have meaning, where reasonable and consistent with the entire statute,
because ‘[i]t is always presumed that the legislature acted with care and
deliberation . . . .’ ” (alterations in original) (quoting State v. Benton, 276 N.C. 641,
658, 174 S.E.2d 793, 804 (1970)). To the extent Regan holds that an express finding
of good cause shown and stated is not required by N.C.G.S. § 15A-1344(f)(3), that
portion of Regan is overruled.
Having determined that the Court of Appeals erred in affirming the trial
court’s 9 September 2016 judgments, the only remaining question is whether remand
to the trial court is appropriate for it to determine whether good cause exists to revoke
defendant’s probation despite the expiration of his probationary period and, if so, to
make an appropriate finding of fact as required by subsection (f)(3). We stated in
Bryant that “[i]n the absence of statutorily mandated factual findings, the trial court’s
jurisdiction to revoke probation after expiration of the probationary period is not
preserved.” Bryant, 361 N.C. at 103, 637 S.E.2d at 534. We further noted, however,
that “[o]rdinarily[ ] when [there is a failure] to make a material finding of fact . . .,
the case must be remanded . . . for a proper finding.” Id. at 104, 637 S.E.2d at 535
(first, third, fourth, and fifth alterations in original) (quoting N.C. Dep’t of Env’t &
-13-
STATE V. MORGAN
Opinion of the Court
Nat. Res. v. Carroll, 358 N.C. 649, 674, 599 S.E.2d 888, 904 (2004)).
In Bryant, after determining that the trial court had failed to comply with the
requirements of N.C.G.S. § 15A-1344(f), we proceeded to determine whether the
record contained sufficient evidence to permit the necessary finding of “reasonable
efforts” by the State to have conducted the probation revocation hearing earlier. Id.
at 104, 637 S.E.2d at 535–36. Noting that the record was “devoid of any persuasive
evidence as to why there was more than a two-month delay in conducting [the]
probation revocation hearing,” we concluded that “remand is not a proper
remedy . . . because the record lacks sufficient evidence to support such a finding.” Id.
at 104, 637 S.E.2d at 535–36.
In the present case, conversely, we are unable to say from our review of the
record that no evidence exists that would allow the trial court on remand to make a
finding of “good cause shown and stated” under subsection (f)(3). Accordingly, we
remand this matter to the Court of Appeals for further remand to the trial court for
a finding of whether good cause exists to revoke defendant’s probation despite the
expiration of his probationary period and—assuming good cause exists—to make a
finding in conformity with N.C.G.S. § 15A-1344(f)(3).
Conclusion
For the reasons stated above, we reverse the decision of the Court of Appeals
and remand this case to the Court of Appeals for further remand to the superior court
for proceedings not inconsistent with this opinion.
-14-
STATE V. MORGAN
Opinion of the Court
REVERSED AND REMANDED.
-15-
| {
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FILED
United States Court of Appeals
UNITED STATES COURT OF APPEALS Tenth Circuit
FOR THE TENTH CIRCUIT December 13, 2017
_________________________________
Elisabeth A. Shumaker
Clerk of Court
CHAD WILLIAM REED,
Plaintiff - Appellant,
v. No. 17-6082
(D.C. No. 5:16-CV-00461-C)
JASON BRYANT; KELLY CURRY; (W.D. Okla.)
LAWRENCE BELL, MD - Doctor of
Medicine; ROWENNA BELL; JAY
DRAWBRIDGE,
Defendants - Appellees.
_________________________________
ORDER AND JUDGMENT*
_________________________________
Before TYMKOVICH, Chief Judge, BALDOCK and HOLMES, Circuit Judges.
_________________________________
This case arises from a decision by Oklahoma prison authorities to suspend
state prisoner Chad William Reed from the kosher diet program in which he had
participated for several years. He was suspended pursuant to an Oklahoma
Department of Corrections (ODOC) policy that requires suspension if an inmate
participating in a religious diet program consumes or possesses food not included in
*
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.
the religious diet. This type of policy is sometimes referred to as a “zero-tolerance
rule.” Mr. Reed, acting pro se, brought this action under 42 U.S.C. § 1983, alleging the
defendant prison officials violated numerous constitutional provisions and the Religious
Land Use and Institutionalized Persons Act of 2000 (RLUIPA), 42 U.S.C. § 2000cc-1
to -5, by enforcing the ODOC policy against him, falsely accusing him of violating the
policy, and in taking other, related actions. The district court granted Defendants’ motion
to dismiss Mr. Reed’s claims pursuant to Federal Rule of Civil Procedure 12(b)(6) and
denied his motions for discovery and for leave to amend. Mr. Reed appeals the denial of
his motions and the judgment entered against certain of his claims.
Exercising jurisdiction under 28 U.S.C. § 1291, we reverse and remand this action
to the district court. We conclude:
• The district court should have addressed Mr. Reed’s claim that ODOC’s
zero-tolerance rule violates his procedural due process rights. We remand this
claim to the district court for further proceedings under the appropriate legal
standards.
• The district court should not have granted summary judgment against Mr. Reed’s
RLUIPA challenge to the zero-tolerance rule. A zero-tolerance rule that requires
suspension of inmates who are falsely or mistakenly accused of violating the zero
tolerance rule can impose a substantial burden on an inmate’s sincerely held
religious beliefs. And the government bears the burden of demonstrating the
regulation satisfies strict scrutiny. We remand this claim for further proceedings
against the relevant defendants in their official capacities.
BACKGROUND
Unless otherwise noted, the facts recited in this decision are drawn from
Mr. Reed’s complaint and are assumed to be true for purposes of our de novo review
of the district court’s rulings on the claims at issue. See, e.g., SEC v. Shields,
2
744 F.3d 633, 640 (10th Cir. 2014). We also limit this discussion to the facts
relevant to the issues before us.
Mr. Reed is an Oklahoma state inmate confined at the James Crabtree
Correctional Center (JCCC), an ODOC facility. Mr. Reed is Jewish, and had been
enrolled in the kosher diet program at JCCC for approximately five years before the
events giving rise to this action. The JCCC operates this program pursuant to the
ODOC’s Religious Diet Policy, which states that the ODOC will provide a kosher or
halal diet to an inmate who requests it if, among other things, he signs an agreement
that he “will not consume or possess any food that is not consistent with the diet
requested.”1 R. Vol. I, at 113; see also id. at 102-03. Under the policy, an inmate
who violates this requirement is automatically suspended from the religious diet
program for 30 days for the first violation, 120 days for the second violation and for
one year for every subsequent violation. This type of provision in a prison’s
religious diet program is sometimes referred to as a “zero-tolerance rule.” The
ODOC’s Religious Diet Policy, including the zero-tolerance rule, is administered and
enforced by the prison chaplain.
On December 17, 2015, JCCC kitchen manager Rowena Bell accused
Mr. Reed of using another inmate’s meal card to obtain a non-kosher breakfast tray,
and refused to provide him with a kosher breakfast tray on this basis. Mr. Reed
1
We may consider ODOC’s Religious Diet Policy in evaluating Defendants’
motion to dismiss because Mr. Reed references the policy in his complaint, it is
central to several of his claims, and the parties have not disputed its authenticity. See
Smith v. United States, 561 F.3d 1090, 1098 (10th Cir. 2009).
3
adamantly denied that he had taken a non-kosher tray and requested that the captain
on shift save and review the “chow hall video,” which Mr. Reed claimed would
disprove Ms. Bell’s accusation. Mr. Reed also asked JCCC chaplain Jay Drawbridge
to review the chow hall video to assess whether Ms. Bell’s accusation was true. In
spite of his protestations and requests, the prison did not investigate Mr. Reed’s
complaints or provide him with an opportunity to dispute Ms. Bell’s account.
Instead, shortly after the incident, pursuant to ODOC’s zero-tolerance rule, chaplain
Drawbridge suspended Mr. Reed from his kosher diet for 120 days based on an
Incident Report submitted by Ms. Bell’s supervisor, Kelly Curry, that recounted
Ms. Bell’s report that Mr. Reed had taken a non-kosher meal tray.2 JCCC officials
also rejected on procedural grounds the many emergency and standard grievances and
grievance appeals Mr. Reed submitted after his suspension regarding the incident and
related matters, and then placed him on grievance restriction.3
Mr. Reed asserts Ms. Bell falsely accused him of violating the zero-tolerance
rule as a result of a heated conversation he had with Ms. Curry a few days before the
2
Mr. Reed had been suspended under the zero-tolerance rule once before, and
filed suit at that time challenging the suspension on the ground that it violated
RLUIPA and infringed on various constitutional rights. See R. Vol. I, at 19; id.
Vol. II, at 6-7. Mr. Reed’s suit was dismissed for failure to exhaust administrative
remedies. See R. Vol. I, at 19; id. Vol. II, at 7.
3
Defendants moved to dismiss Mr. Reed’s claims pursuant to
42 U.S.C. § 1997e(a) for failure to exhaust administrative remedies, but the
magistrate judge recommended that this motion be denied. R. Vol. II, at 6 n.1. The
district court adopted this recommendation in adopting the magistrate judge’s Report
and Recommendation. See id. at 99-100.
4
incident. In that conversation, Mr. Reed threatened to sue Ms. Curry for
discrimination if she did not provide him and other religious diet participants with a
special meal on the upcoming holiday as she did for other inmates. Ms. Curry
responded, “Well [we] will just see about that.” Id. at 10 (internal quotation marks
omitted). Mr. Reed alleges Ms. Curry then retaliated against him by conspiring with
Ms. Bell to get him suspended from his religious diet before the holiday, thereby
heading off the threatened suit, and that this was the impetus for Ms. Bell falsely
accusing him of taking a non-kosher breakfast tray.
Mr. Reed, acting pro se, filed suit against JCCC chaplain Drawbridge,
Ms. Curry and Ms. Bell, JCCC Warden Jason Bryant and the captain on shift when
Ms. Bell made her accusation based on these and some related events. As relevant to
this appeal, Mr. Reed asserted claims challenging the ODOC’s zero-tolerance rule on
the ground that it violated his constitutional right to due process and his rights under
RLUIPA, as well as First Amendment claims against Defendants Bell and Curry, in
their individual capacities, for conspiring to retaliate against him and causing him to
be suspended without justification from the prison’s religious diet program.
Mr. Reed sought damages, a declaratory judgment that his rights had been violated,
and prospective injunctive relief.
The district judge referred the matter to a magistrate judge, who issued an
order barring discovery and directing Defendants to prepare a Special Report in
compliance with the guidelines set out in Martinez v. Aaron, 570 F.2d 317 (10th Cir.
1978) (per curiam). Defendants filed the Special Report and the next day filed a
5
motion to dismiss under Rule 12(b)(6) that did not reference or attach the Report or
any other external material. After Mr. Reed filed his response, the magistrate judge
issued a Report and Recommendation in which he construed Defendants’ motion to
dismiss in part as a motion for summary judgment and recommended that all of
Mr. Reed’s claims be disposed of either by dismissal or entry of summary judgment.
Shortly after Mr. Reed received the magistrate’s report and recommendation,
he filed a Rule 56(f) motion for a continuance to allow discovery (to obtain the chow
hall video and other evidence relevant to his false accusation allegations) and a
motion for leave to amend his complaint. Subsequently he timely filed objections to
the magistrate judge’s report and recommendation.
The district court adopted the magistrate judge’s report and recommendation.
In the order adopting the magistrate judge’s recommendation, the district court also
struck Mr. Reed’s motion for continuance and discovery as moot, on the ground that
“[t]he proper time for discovery requests has passed,” and denied his motion for
leave to amend on the ground that the proposed amendment failed to cure the
deficient claims identified in the magistrate judge’s report. R. Vol. II, at 99-100.
This appeal followed.
DISCUSSION
Because Mr. Reed is proceeding pro se, we must construe his pleadings and
arguments liberally, notwithstanding any “failure to cite proper legal authority, his
confusion of various legal theories” or the like. Hall v. Bellmon, 935 F.2d 1106,
6
1110 (10th Cir. 1991); see also United States v. Pinson, 584 F.3d 972, 975 (10th Cir.
2009). We do not, however, serve as his advocate. Hall, 935 F.2d at 1110.
Reading Mr. Reed’s pro se brief liberally, he raises three issues on appeal:
(1) whether the district court erred in entering summary judgment against his claim
that ODOC’s zero-tolerance rule violates his procedural due process rights and right
to practice his religion under RLUIPA; (2) whether the district court erred in denying
his motions for a continuance and discovery; and (3) whether the district court
abused its discretion in denying his motion for leave to amend his complaint.4 We
examine each issue in turn.
A. Claim challenging ODOC’s zero-tolerance rule
In his complaint, Mr. Reed sought prospective injunctive relief against
ODOC’s zero-tolerance rule on the ground that it violated the First Amendment’s
Establishment Clause, the Due Process Clauses of the Fifth and Fourteenth
Amendments, and RLUIPA. In support of his RLUIPA challenge, he referenced
several cases, including United States v. Secretary, Florida Department of
Corrections, No. 12-22958-CIV, 2015 WL 1977795 (S.D. Fla. Apr. 30, 2015)
(unpublished), aff’d on other grounds, 828 F.3d 1341 (11th Cir. 2016), in which the
court enjoined a similar zero-tolerance rule upon finding that it violated RLUIPA, id.
4
Mr. Reed asserted many other claims in his complaint, but did not address
the district court’s disposition of them in his opening brief. As a result, he forfeited
the right to challenge these district court rulings on appeal. See Bronson v. Swensen,
500 F.3d 1099, 1104 (10th Cir. 2007) (“[O]mission of an issue in an opening brief
generally forfeits appellate consideration of that issue.”).
7
at *11-12. On appeal, Mr. Reed has narrowed his argument, contending that the
district court failed to address his claim that the ODOC rule deprived him of his
constitutional right to procedural due process and that the rule violated RLUIPA as
found in Florida Department of Corrections.
1. Procedural due process
Mr. Reed is correct that Defendants and the district court did not address his
claim that ODOC’s zero-tolerance rule deprived him of procedural due process in
violation of the Fourteenth Amendment.5 To prevail on this claim, Mr. Reed must
ultimately show that: (1) his interest in maintaining a kosher diet is a liberty or
property interest protected under the Due Process Clause; and (2) he was not afforded
a constitutionally adequate level of process. See Brown v. Montoya, 662 F.3d 1152,
1167 (10th Cir. 2011). Here, Mr. Reed is asserting a liberty interest because he
alleges that his kosher diet suspension and the zero-tolerance rule on which it was
based violated his First Amendment right to freely exercise his religion.
A protected liberty interest “may arise from the Constitution itself, by reason
of guarantees implicit in the word ‘liberty,’ or it may arise from an expectation or
interest created by state laws or policies.” Wilkinson v. Austin, 545 U.S. 209, 221
5
The Fourteenth Amendment is the source of the States’ constitutional
obligation to provide an individual with procedural due process before depriving
them of their life, liberty or property. See McBeth v. Himes, 598 F.3d 708, 723
(10th Cir. 2010).
8
(2005) (citations omitted).6 Constitutional rights provided by the First Amendment
are liberty interests under the Due Process Clause. See Procunier v. Martinez,
416 U.S. 396, 417 (1974) (holding that a prisoner interest grounded in the First
Amendment “is plainly a ‘liberty’ interest within the meaning of the Fourteenth
Amendment even though qualified of necessity by the circumstance of
imprisonment”), overruled on other grounds by Thornburgh v. Abbott, 490 U.S. 401
(1989); see also Washington v. Glucksberg, 521 U.S. 702, 719-20 (1997) (stating
Due Process Clause “provides heightened protection against government interference
with certain fundamental rights and liberty interests[,] . . . [including] the specific
freedoms protected by the Bill of Rights”). If a liberty interest is established, then
the adequacy of the prison’s procedures is assessed by balancing three factors:
(1) the private interest affected by the government action; (2) “‘the risk of an
erroneous deprivation of such interest through the procedures used, and the probable
value, if any, of additional or substitute procedural safeguards’”; and (3) the State’s
interest, “‘including the function involved and the fiscal and administrative burdens
that the additional or substitute procedural requirement would entail.’” Wilkinson,
545 U.S. at 224-25 (quoting Mathews v. Eldridge, 424 U.S. 319, 335 (1976)).
6
While state laws and policies can give rise to a protected liberty interest in
avoiding particular conditions of confinement in prisons, such state-derived rights are
generally “limited to freedom from restraint [that] . . . imposes atypical and
significant hardship on the inmate in relation to the ordinary incidents of prison
life.’” Wilkinson, 545 U.S. at 222-23 (internal quotation marks omitted); see also
Toevs v. Reid, 685 F.3d 903, 911 (10th Cir. 2012).
9
Because the district court did not address Mr. Reed’s procedural due process
challenge to ODOC’s zero-tolerance rule, we remand this claim to the district court
for further proceedings under these standards.
2. RLUIPA
Mr. Reed is also correct that the district court did not discuss the authority
Mr. Reed referenced in his complaint and his response to Defendants’ motion (and in
his objections to the magistrate judge’s report) in support of his RLUIPA challenge
to ODOC’s zero-tolerance rule. Contrary to his assertion, however, the magistrate
judge did address this claim and recommended that summary judgment be entered
against it. R. Vol. II, at 31-32.
In the RLUIPA claim, Mr. Reed seeks prospective injunctive relief against the
zero-tolerance rule on the ground that it violates RLUIPA. Such a claim may be
brought against individual prison officials in their official capacities. See Yellowbear
v. Lampert, 741 F.3d 48, 53 n.1 (10th Cir. 2014). To prevail on this claim, Mr. Reed
must demonstrate that the ODOC’s zero-tolerance religious diet rule substantially
burdens his sincerely held religious beliefs. See 42 U.S.C. § 2000cc-1(a). If
Mr. Reed makes this showing, then the burden shifts to Defendants to show that the
burden imposed by enforcement of the policy (1) serves a “compelling governmental
interest” and (2) “is the least restrictive means of furthering that compelling
governmental interest.” Id.; see also Yellowbear, 741 F.3d at 56.
The district court found ODOC’s zero-tolerance rule did not run afoul of
RLUIPA because (1) temporary suspension of Mr. Reed’s kosher meals pursuant to
10
the rule did not substantially burden his sincerely held religious beliefs, either as a
matter of law or because a reasonable jury could not so find; and (2) even if the
suspension did substantially burden Mr. Reed’s sincere religious beliefs, this burden
“further[ed] legitimate and compelling penological interests.” R. Vol. II, at 31-32.
We disagree with this assessment, for several reasons. First, this court has
long held that prisoners have the right under the First Amendment and RLUIPA to a
diet that conforms to their sincerely held religious beliefs. See Beerheide v. Suthers,
286 F.3d 1179, 1185 (10th Cir. 2002) (First Amendment); Abdulhaseeb v. Calbone,
600 F.3d 1301, 1314-15 (10th Cir. 2010) (RLUIPA). It is also well established that
depriving a prisoner of a religious diet he has requested pursuant to his sincerely held
religious beliefs at minimum creates a triable issue of fact on whether this constitutes
a substantial burden on the inmate’s religious exercise.7 In Abdulhaseeb, we
considered this issue in the context of deciding whether ODOC’s failure to provide a
Muslim inmate with a halal diet as requested presented a genuine issue of material
fact regarding substantial burden under RLUIPA. 600 F.3d at 1312-20. After
defining what constitutes a substantial burden under the statute,8 we held that failing
7
Defendants do not contest that Mr. Reed requested a kosher diet pursuant to
his sincerely held religious beliefs.
8
We determined that:
a religious exercise is substantially burdened under [RLUIPA] when
a government (1) requires participation in an activity prohibited by a
sincerely held religious belief, or (2) prevents participation in
conduct motivated by a sincerely held religious belief, or (3) places
(continued)
11
to provide the requested religious diet raised a genuine issue with respect to
substantial burden because:
It is a reasonable inference that ODOC’s failure to provide a halal diet
either prevents Mr. Abdulhaseeb’s religious exercise, or, at the least, places
substantial pressure on Mr. Abdulhaseeb not to engage in his religious
exercise by presenting him with a Hobson’s choice—either he eats a
non-halal diet in violation of his sincerely held beliefs, or he does not eat.
Id. at 1316-17.
We further found in Abdulhaseeb that the district court erred in finding no
substantial burden existed when “there were or may have been periods” when the
religious diet was not available to the inmate. Id. at 1320. We have also cited a
prison’s failure to provide Jewish inmates with food that satisfies their religious
dietary restrictions as an example of a substantial burden on the exercise of religion
under RLUIPA. See Yellowbear, 741 F.3d at 55-56. Under this authority, therefore,
a zero-tolerance rule that requires suspension of inmates who may have been falsely
or mistakenly accused of violating the zero-tolerance rule can impose a substantial
burden on an inmate’s sincerely held religious beliefs.
As noted above, this determination is not dispositive of Mr. Reed’s
RLUIPA challenge to the ODOC’s zero-tolerance rule, because the statute provides
substantial pressure on an adherent either not to engage in conduct
motivated by a sincerely held religious belief or to engage in conduct
contrary to a sincerely held religious belief, such as where the
government presents the plaintiff with a Hobson’s choice—an
illusory choice where the only realistically possible course of action
trenches on an adherent’s sincerely held religious belief.
Abdulhaseeb, 600 F.3d at 1315.
12
that a prison regulation may properly burden inmates’ religious exercise if the
government demonstrates the regulation “is in furtherance of a compelling
governmental interest” and is “the least restrictive means of furthering” that interest.
42 U.S.C. § 2000cc-1(a). Because this is an affirmative defense, it need not be pled
by the plaintiff inmate in order to state a claim. See Ghailani v. Sessions,
859 F.3d 1295, 1305-06 (10th Cir. 2017) (regarding identical affirmative defense
provided in Religious Freedom Restoration Act (RFRA)). The magistrate judge
nonetheless reached the issue of Defendants’ justification for the zero-tolerance rule
by virtue of construing their motion to dismiss this claim as a motion for summary
judgment.
Even if this conversion had been proper,9 the magistrate judge erred in the
legal standard he applied with respect to this defense, which was whether the rule
“further[ed] legitimate and compelling penological interests.” R. Vol. II, at 32. This
standard appears to be based in part on the Supreme Court’s holding in Turner v.
Safley, 482 U.S. 78 (1987), that “when a prison regulation impinges on inmates’
constitutional rights, the regulation is valid if it is reasonably related to legitimate
penological interests,” id. at 89. But the Turner standard is more relaxed than
RLUIPA’s standard. Ghailani, 859 F.3d at 1305. RLUIPA requires that the
government demonstrate that application of the burden to the person “is in
furtherance of a compelling governmental interest.” 42 U.S.C. § 2000cc-1(a)(1).
9
This conversion was not proper for the reasons stated in Section B below.
13
RLUIPA also requires that the government demonstrate that the substantial burden is
the result of “the least restrictive means of furthering that compelling governmental
interest.” Id. § 2000cc-1(a)(2).
In addition, the “compelling interest test cannot ‘be satisfied by the
government’s bare say-so.’” Ghailani, 859 F.3d at 1306 (quoting Yellowbear,
741 F.3d at 59). Instead, the government must present evidence that imposing a
substantial burden on an inmate’s sincerely held religious beliefs serves a compelling
government interest and does so by the least restrictive means. See Abdulhaseeb,
600 F.3d at 1318-19. Here, the government neither addressed the appropriate
standard in its motion nor provided evidence regarding the interests the policy serves
or whether it is the least restrictive means of serving these interests. The district
court therefore erred in granting summary judgment against Mr. Reed’s RLUIPA
challenge to the zero-tolerance rule.
The court also found Mr. Reed had failed to state a claim for prospective
injunctive relief against ODOC’s zero-tolerance rule because “[he] ha[d] not
plausibly alleged that a future suspension [under the zero-tolerance rule] is imminent
or likely” and thus had not alleged an ongoing violation of federal law by the state
that may be remedied by such relief. R. Vol. II, at 12; see also Green v. Mansour,
474 U.S. 64, 68 (1985) (pursuant to Ex parte Young, 209 U.S. 123 (1908), federal
courts may grant prospective injunctive relief against state officials “to prevent a
continuing violation of federal law”). We must also disagree with this conclusion.
As we found in Abdulhaseeb, where an inmate’s access to a religious diet involves
14
ODOC policies, and the inmate “remains incarcerated in ODOC’s custody, subject to
ODOC policies,” prospective injunctive relief in the form of a judgment requiring
modification of these policies is available if the policies are found to violate
RLUIPA. 600 F.3d at 1312. As a result, Mr. Reed need not allege that he is likely to
be suspended under the ODOC policy in the near future in order to state a claim for
prospective injunctive relief.10
In addition, we reject the argument that Mr. Reed had failed to allege
irreparable harm. RLUIPA enforces the First Amendment right to exercise one’s
religion, see 42 U.S.C. § 2000cc-3(g); Opulent Life Church v. City of Holly Springs,
697 F.3d 279, 295 (5th Cir. 2012), and “[t]he loss of First Amendment freedoms, for
even minimal periods of time, unquestionably constitutes irreparable injury,” Elrod v.
Burns, 427 U.S. 347, 373 (1976). Accordingly, infringement of his rights under
RLUIPA, as Mr. Reed has alleged, would constitute irreparable injury. See Opulent
Life Church, 697 F.3d at 295; see also Kikumura v. Hurley, 242 F.3d 950, 963
10
The magistrate judge also suggested Mr. Reed failed to state a claim for
prospective injunctive relief against the zero-tolerance rule because he did not allege
that he had requested reinstatement to his kosher diet. R. Vol. II, at 11-12. However,
while it is not entirely clear from Mr. Reed’s complaint, it appears from the
allegations there that he was still suspended from receiving a kosher diet at the time
the complaint was prepared. In addition, as Mr. Reed properly noted in his
objections to the magistrate judge’s recommendation, the form he must complete to
request reinstatement requires that he acknowledge and implicitly admit his prior
violations of the zero-tolerance rule, something Mr. Reed asserts he cannot do with
respect to his second alleged violation without lying in violation of Jewish law. See
R. Vol. I, at 113; id. Vol. II, at 75-76. Mr. Reed also represents in his briefing to this
court that the prison reinstated his kosher diet when he filed this appeal. Aplt.
Opening Br. at 4.
15
(10th Cir. 2001) (finding allegation that prison violated RFRA, which also protects
religious freedoms derived from the First Amendment, see Ghailani, 859 F.3d
at 1304-05, was irreparable harm).
For the reasons stated above, we remand this claim for further proceedings
against the relevant defendants in their official capacities.
B. Denial of motions for a continuance and discovery
The district court struck these motions as moot because the magistrate judge
had informed Mr. Reed of the possibility of summary judgment conversion when
Defendants filed their motion to dismiss and, therefore, “[t]he proper time for
discovery requests ha[d] passed.” R. Vol. II, at 99-100. We review this decision for
abuse of discretion. See Ben Ezra, Weinstein, & Co. v. Am. Online Inc., 206 F.3d 980,
986 (10th Cir. 2000).
In the magistrate judge’s order referenced and relied upon by the district court
in striking these motions, see R. Vol. II, at 99 (citing Order, Oct. 19, 2016,
ECF No. 26), the magistrate judge stated “to the extent that the Motion to Dismiss
relies upon and is supported by affidavits and/or other documentary evidence,
Plaintiff should be aware of the provisions of Rule 56” and “[w]hen a dispositive
motion is supported by affidavits and/or other documentary evidence, the motion may
be converted to one for summary judgment under Fed. R. Civ. P. 12. In this instance,
the party opposing the motion must respond with affidavits and/or documentary
evidence.” Order 1, ECF No. 26 (emphasis added). But Defendants’ motion to
dismiss did not rely on or attach external documentary evidence. Accordingly,
16
Mr. Reed did not have notice that summary judgment was a possibility, and that he
might want to seek a continuance to allow discovery as a result, before the magistrate
issued his report and recommendation. In addition, the magistrate judge had stayed
discovery until Defendants filed their Special Report, which they did one day before
they filed their Motion to Dismiss. As a result, Mr. Reed had no opportunity to
conduct discovery before Defendants filed their motion and no reason to believe he
needed to initiate discovery in order to respond to their motion.
Under these circumstances, the district court abused its discretion in refusing
to grant Mr. Reed’s motions for a continuance and for discovery.
C. Denial of motion for leave to amend
We also review the district court’s denial of Mr. Reed’s motion for leave to
amend his complaint for abuse of discretion, “[b]ut if the district court denied leave
to amend because it determined that amendment would be futile, our review . . .
includes de novo review of the legal basis for the finding of futility.” Fields v. City
of Tulsa, 753 F.3d 1000, 1012 (10th Cir. 2014) (internal quotation marks omitted).
The district court denied Mr. Reed’s motion for leave to amend on the ground
that his proposed amended complaint “fails to cure the deficient claims” identified in
the magistrate judge’s report and recommendation. R. Vol. II, at 100. In his
proposed amended complaint, Mr. Reed reasserted and expanded on his claims
against Defendants Bell and Curry in their individual capacities for violating his First
Amendment free exercise rights and for retaliating against him.
17
In his original complaint, Mr. Reed alleged these defendants violated his free
exercise rights by conspiring to take action, and making a false Incident Report that
they knew would result in Mr. Reed being suspended from his kosher meal program,
and that they did so in retaliation for him threatening to sue Defendant Curry
regarding another aspect of the prison’s religious diet program. The magistrate judge
recommended that the district court dismiss these claims without prejudice because
Mr. Reed had not supported his conspiracy allegation with specific factual allegations
as required. See id. at 15. Mr. Reed addressed this deficiency in his proposed
amended complaint by referencing and attaching an affidavit from another inmate
who reported in detail how he overheard Defendants Curry and Bell planning to
falsely accuse Mr. Reed of taking a non-kosher meal. Id. at 55, 59, 65-66. There
was no basis, therefore, for the district court to conclude that Mr. Reed had failed to
cure the deficiencies identified by the magistrate judge with respect to these claims,
and amendment should have been permitted.
CONCLUSION
For the reasons stated above, this matter is remanded to the district court for
further proceedings consistent with this order and judgment.
In addition, we grant Mr. Reed’s motion to proceed on appeal without
prepayment of costs or fees. After granting Mr. Reed leave to proceed in forma
pauperis in the proceedings before it, the district court denied Mr. Reed’s request to
proceed in forma pauperis on appeal upon finding that his appeal was not taken in
good faith because it was frivolous. Id. at 106. We find for the reasons stated above
18
that his appeal was not frivolous and therefore grant him leave to proceed without
prepayment of filing and docketing fees in this appeal. See 28 U.S.C. § 1915(a)(1).
We remind Mr. Reed, however, that he remains obligated to make partial payments
until the entire filing and docketing fees are paid in full. See id. § 1915(b).
Entered for the Court
Timothy M. Tymkovich
Chief Judge
19
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268 F.Supp.2d 616 (2003)
John C. JANEY,
v.
N. HESS SONS, INC., et al.
No. CIV.A. DKC 2001-3432.
United States District Court, D. Maryland.
June 24, 2003.
*617 Eileen Carr Riley, Jeffrey E. Rockman, Serotte, Rockman and Wescott PA, for defendants.
Gregory E. Taitt, Law Offices of Gregory E. Tait, Largo, MD, for plaintiff.
MEMORANDUM OPINION
CHASANOW, District Judge.
Presently pending and ready for resolution in this employment discrimination case is the motion of Defendants N. Hess Sons, Inc. d/b/a Hess Shoes ("Hess Shoes") and HR Stores, Inc. ("HR Stores") for summary judgment pursuant to FED. R. CIV. P. 56. The issues have been fully briefed, and the court now rules pursuant to Local Rule 105.6, no hearing being *618 deemed necessary. For the reasons that follow, Defendants' motion will be granted.
I. Background
The following facts are uncontroverted or set forth in the light most favorable to the Plaintiff. Plaintiff John C. Janey is an African-American male who was employed by Hess Shoes, under the supervision of Thomas V. Kane ("Kane")[1], during the period set forth in his complaint. Hess Shoes maintained several stores in the Washington, D.C. area, including a store located in the White Flint Mall in Rockville, Maryland, where Janey was employed as a sales associate in the men's department from September 8, 1995 until January 13, 2000. Prior to October 3, 1999, Hess Shoes also operated several small stores known as Rockport Stores, which exclusively sold Rockport products. Plaintiff was the top shoe salesperson in the company every month between 1997 and 1999 and received awards from Hess Shoes management for his exceptional performance.
Plaintiff claims that at least four times between 1995 and 1998, he expressed interest in a promotion to a managerial position to his supervisor, district manager Ervin Richardson, but never received one. See Paper no. 26, Ex. 3 (Janey Dep.) at 41-43, 45-46, 51-55. In contrast, Richardson testified that Plaintiff never actually asked him for a promotion, but that Richardson did recommend more than once to Kane that Plaintiff be given a promotion. See Paper no. 26, Ex. 4 (Richardson Dep.) at 34, 48-49. The last promotion at the Hess Shoes White Flint store from a sales to a management position occurred in February 1996, when Anne Threatt, an African-American woman, was promoted to assistant manager of women's shoes. See Janey Dep. at 69-70.
On October 3, 1999, Hess Shoes and HR Stores were restructured as separate corporate entities under a common parent, Hess Holdings, Inc., and a management agreement was entered into for Hess Shoes to operate the newly created HR Stores during the liquidation of Hess Shoes stores. The last promotion from sales to management at any Hess Shoes store occurred at the Columbia Mall store on October 24, 1999, when a white female was promoted to assistant manager. See Paper no. 24, Ex. 2 (Kane Dep.) at 83. On November 1, 1999, Hess Shoes formally announced its intent to liquidate inventory and close all of its stores over the course of the following few months. Following the announcement, it is undisputed that Hess Shoes made no further promotions. See Janey Dep. at 66, 193.
When the announcement was made in October 1999 that Hess Shoes would be closing, Plaintiff asked Richardson if he could "stay on" with HR Stores once Hess Shoes stores closed, and Richardson relayed the request to Kane along with the requests of other Hess Shoes employees who wanted to work at HR Stores. See Richardson Dep. at 23, 34-35. Kane denies receiving Plaintiff's request. Richardson stated for the first time in a postdeposition affidavit that Plaintiff made his request on or about December 13, 1999. See Paper no. 26, Ex. 2 (Richardson Aff.), ¶ 6. Richardson testified generally in his deposition that HR Stores had vacancies during the liquidation, see Richardson Dep. at 27, 36, but also stated for the first time in his affidavit that he had personal knowledge that HR Stores was looking to fill *619 vacancies specifically on and after December 13, 1999, when Plaintiff requested a transfer to HR Stores. See Richardson Aff. ¶ 7. On January 13, 2000, the Hess Shoes store in the White Flint Mall, where Plaintiff was employed, permanently closed.
Plaintiff claims that on January 20, 2000, at the suggestion of Lawrence Perez, a union representative from the United Food and Commercial Workers Local 400, he sent Kane a letter requesting a "transfer" to an HR Store location. Perez testified in his deposition that he received a copy of the letter, but Kane denies receiving the letter. See Paper no. 26, Ex. 6 (Perez Dep.) at 13, 17-18. Plaintiff also testified in his deposition that he re-sent the letter to Kane about one month later. See Janey Dep. at 111. Plaintiff asserts that four former Hess Shoes employees were hired to work for HR Stores during the liquidation of Hess Shoes, but that he was denied a transfer because of his race. Kane testified in his deposition that three employees from Hess Shoes obtained permanent employment with HR stores, while another worked for HR Stores temporarily for three weeks but was not offered permanent employment. See Paper no. 24, Ex. 1 (Kane Aff.), ¶¶ 13-16. The three permanent employees were hired by HR Stores between November 16, 1999 and December 6, 1999 and included one African-American employee, Ann Threatt. See id; Kane Dep. at 88-89.
HR Stores hired no employees, from Hess Shoes or any other source, from December 6, 1999 until May 5, 2000, when it hired Henry Stevenson, an African-American man, as assistant manager of the Towson store, after advertising in newspapers and other publications beginning in late April 2000. See Kane Dep. at 94. In May and June of 2000, HR Stores hired a total of six managers from other companies, three of whom were African-American. See id. at 94-95, Ex. 6. Plaintiff was hired by Nordstrom's in March 2000, earning significantly more money than at Hess Shoes, and admits that he did not apply for the openings at HR Stores in May 2000 and thereafter, even after being laid off by Nordstrom's in October 2001. See Janey Dep. at 136-37, 139.
Plaintiff filed a charge of employment discrimination with the Human Relations Commission of Montgomery County ("HRC") on October 6, 2000. Plaintiff received a dismissal and right to sue letter from the EEOC on July 16, 2001, notifying Plaintiff of his right to bring a civil action within ninety days of the receipt of the letter. Plaintiff filed a complaint in the Circuit Court for Montgomery County, Maryland on October 12, 2001, and Defendants removed the action to this court on November 19, 2001, based upon federal question jurisdiction. Plaintiffs complaint alleged discrimination on the basis of race and age by Hess Shoes, HR Stores, and Kane. He also alleged that Hess Shoes engaged in a pattern and practice of promoting white employees over African-American employees. The complaint alleged violations of Title VII of the Civil Rights Act of 1964, the Age Discrimination in Employment Act, Article 49B of the Annotated Code of Maryland, and Section 27 of the Montgomery County Code.
Defendants moved for dismissal of the complaint, and, on June 4, 2002, the court granted the motion in part. Specifically, the court dismissed Plaintiffs claims of age discrimination, all claims against Kane, claims under Article 49B of the Annotated Code of Maryland, and all claims occurring more than 300 days prior to the filing of Plaintiffs HRC charge on October 6, 2000, rendering all claims arising before December 10, 1999 untimely. Therefore, Plaintiffs remaining claims are that, at some *620 time after December 10, 1999, Defendants failed to promote him within Hess Shoes and to transfer him to HR Stores because of his race, in violation of Title VII.
II. Standard of Review
It is well established that a motion for summary judgment will be granted only if there exists no genuine issue as to any material fact and the moving party is entitled to judgment as a matter of law. FED. R. Civ. P. 56(c); Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 250, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986); Celotex Corp. v. Catrett, 477 U.S. 317, 322, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986). In other words, if there clearly exist factual issues "that properly can be resolved only by a finder of fact because they may reasonably be resolved in favor of either party," then summary judgment is inappropriate. Anderson, 477 U.S. at 250, 106 S.Ct. 2505; see also Pulliam Inv. Co. v. Cameo Properties, 810 F.2d 1282, 1286 (4th Cir.1987); Morrison v. Nissan Motor Co., 601 F.2d 139, 141 (4th Cir.1979); Stevens v. Howard D. Johnson Co., 181 F.2d 390, 394 (4th Cir.1950). The moving party bears the burden of showing that there is no genuine issue as to any material fact. FED. R. CIV. P. 56(c); Pulliam Inv. Co., 810 F.2d at 1282, 1286, citing Charbonnages de France v. Smith, 597 F.2d 406, 414 (4th Cir.1979).
When ruling on a motion for summary judgment, the court must construe the facts alleged in the light most favorable to the party opposing the motion. See U.S. v. Diebold, Inc., 369 U.S. 654, 655, 82 S.Ct. 993, 8 L.Ed.2d 176 (1962); Gill v. Rollins Protective Servs. Co., 773 F.2d 592, 595 (4th Cir.1985). A party who bears the burden of proof on a particular claim must factually support each element of his or her claim. "[A] complete failure of proof concerning an essential element ... necessarily renders all otter facts immaterial." Celotex Corp., 477 U.S. at 323, 106 S.Ct. 2548. Thus, on those issues on which the nonmoving party will have the burden of proof, it is his or her responsibility to confront the motion for summary judgment with an affidavit or other similar evidence. Anderson, 477 U.S. at 256, 106 S.Ct. 2505. In Celotex Corp., the Supreme Court stated:
In cases like the instant one, where the nonmoving party will bear the burden of proof at trial on a dispositive issue, a summary judgment motion may properly be made in reliance solely on the "pleadings, depositions, answers to interrogatories, and admissions on file." Such a motion, whether or not accompanied by affidavits, will be "made and supported as provided in this rule," and Rule 56(e) therefore requires the nonmoving party to go beyond the pleadings and by her own affidavits, or by the "depositions, answers to interrogatories, and admissions on file," designate "specific facts showing that there is a genuine issue for trial."
Celotex Corp., 477 U.S. at 324, 106 S.Ct. 2548. However, "`a mere scintilla of evidence is not enough to create a fact issue.'" Barwick v. Celotex Corp., 736 F.2d 946, 958-59 (4th Cir.1984), quoting Seago v. North Carolina Theatres, Inc., 42 F.R.D. 627, 632 (E.D.N.C.1966), aff'd, 388 F.2d 987 (4th Cir.1967). There must be "sufficient evidence favoring the nonmoving party for a jury to return a verdict for that party. If the evidence is merely colorable, or is not significantly probative, summary judgment may be granted." Anderson, 477 U.S. at 249-50, 106 S.Ct. 2505 (citations omitted).
III. Analysis
In order to prevail on a claim of discrimination under Title VII, a plaintiff must demonstrate that the defendants acted *621 with discriminatory intent. See Karpel v. Inova Health System Services, 134 F.3d 1222, 1227 (4th Cir.1998). The plaintiff may prove discriminatory intent either through direct evidence of discriminatory animus or through indirect evidence using the three-pronged burden-shifting framework first set forth in McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802, 93 S.Ct. 1817, 36 L.Ed.2d 668 (1973). Id. at 1227-28. Under the McDonnell Douglas framework, the plaintiff must first establish a prima facie case of discrimination. See McDonnell Douglas, 411 U.S. at 802, 93 S.Ct. 1817; Bryant v. Bell Atlantic Maryland, Inc., 288 F.3d 124, 133 (4th Cir.2002). If a plaintiff establishes a prima facie case of discrimination through circumstantial evidence, the burden of production then shifts to the defendant to provide a legitimate, non-discriminatory reason for the differential treatment. See Reeves v. Sanderson Plumbing Products, Inc., 530 U.S. 133, 142, 120 S.Ct. 2097, 147 L.Ed.2d 105 (2000); Texas Dept. of Community Affairs v. Burdine, 450 U.S. 248, 252-53, 101 S.Ct. 1089, 67 L.Ed.2d 207 (1981); McDonnell Douglas, 411 U.S. at 802, 93 S.Ct. 1817. The plaintiff must then "`prove by a preponderance of the evidence that the legitimate reasons offered by the defendant were not its true reasons, but were a pretext for discrimination.'" Reeves, 530 U.S. at 142, 120 S.Ct. 2097, citing Burdine, 450 U.S. at 253, 101 S.Ct. 1089.
Plaintiffs complaint appeared to allege two claims of race-based discrimination: discrimination in promotion by Hess Shoes and discrimination in hiring by HR Stores. His opposition to the motion for summary judgment, however, seems to lump both claims together, creating some confusion about what Plaintiff is actually arguing. Defendants argue in their reply that Plaintiff has apparently abandoned his claim of failure to promote against Hess Shoes because the opposition states that in December 1999 "Mr. Janey asked for a transfer, not a promotion." Paper no. 26. However, Plaintiff does not explicitly withdraw the failure to promote claim and, indeed, mentions it several times and invokes the continuing violation doctrine to allow consideration of untimely promotion claims. Thus, the court will not deem the promotion claim to have been withdrawn and will address the merits of that claim, as well as those of the claim of failure to transfer.
A. Failure to Promote to Managerial Position
Plaintiff alleges that Defendants denied him a promotion from sales associate to a managerial position because he is African-American.[2] In order to establish a prima facie case of discrimination in the denial of a promotion, a plaintiff must show that: (1) he is a member of a protected *622 group; (2) the defendant had an open position for which the plaintiff applied; (3) he was qualified for the position; and (4) he was rejected for the position under circumstances giving rise to an inference of discrimination. See Evans v. Technologies Applications and Serv., Co., 80 F.3d 954, 959-60 (4th Cir.1996); Carter v. Ball, 33 F.3d 450, 458 (4th Cir.1994). In the instant case, Plaintiff may only assert claims of alleged denials of promotion arising on or after December 10, 1999 because earlier claims are time-barred pursuant to this court's earlier order. Defendants argue in their summary judgment motion that Plaintiff cannot fulfill either the second or fourth prongs of the prima facie case.
Defendants claim that Plaintiff cannot fulfill the second prong of the prima facie case because there were no vacant management positions within Hess Shoes for which Plaintiff applied or sought to apply after December 10, 1999. It is undisputed that after November 1, 1999, when Hess Shoes announced its imminent liquidation and store closures, no promotions were made to managerial positions within Hess Shoes. Thus, no promotions occurred after December 10, 1999, the relevant period for this case. Because Hess Shoes undisputedly had no open managerial positions after December 10, 1999, Plaintiff cannot establish that Hess Shoes discriminated against him by failing to promote him. See, e.g., Tangires v. The Johns Hopkins Hospital, 79 F.Supp.2d 587, 599 (D.Md.2000) ("Plaintiff was not denied a promotion because there was no existing position for which she could have applied or to which she could have been promoted"). Moreover, Plaintiff himself admits that he did not apply for a promotion within Hess Shoes after the summer of 1998 because he had heard rumors that the store was closing. See Janey Dep. at 42-54, 65. Accordingly, Plaintiff is unable to fulfill the second element of the prima facie case.
Defendants also claim that Plaintiff cannot fulfill the fourth element of the prima facie case because he was not rejected for a position and the circumstances do not give rise to an inference of discrimination. Specifically, Defendants argue that Plaintiff could not have been, and was not, rejected for a position because, as previously discussed, there was no open position for which Plaintiff applied or sought to apply after December 10, 1999. Because the evidence shows that there was no managerial position that Hess Shoes sought to fill after December 10, 1999, and Plaintiff admits that he never applied for a promotion after that date, it logically follows that Plaintiff was not rejected for a position. Therefore, because Plaintiff has failed to establish the second and fourth elements of the prima facie case of failure to promote, Hess Shoes is entitled to summary judgment on this claim.
Plaintiff argues in his opposition to the motion for summary judgment that claims of failure to promote arising prior to December 10, 1999 may be properly brought under the doctrine of continuing violation. Under this doctrine, events that occur outside the statutory window are not time-barred if they relate to a timely incident as a "`series of separate but related acts' amounting to a continuing violation." Etefia v. East Baltimore Community Corp., 2 F.Supp.2d 751, 757 (D.Md.1998), quoting Beall v. Abbott Laboratories, 130 F.3d 614, 620 (4th Cir.1997). Plaintiff asserts that because his December 13, 1999 and January 2000 requests to be transferred to HR Shoes were timely filed, they trigger the continuing violation doctrine for the purposes of the alleged 1996, 1997 and 1998 requests for promotion, which he claims are related.
*623 Plaintiffs argument, however, runs contrary to well-established law which holds that the continuing violation doctrine does not apply to discrete discriminatory actions, such as promotions and transfers. See National Railroad Passenger Corp. v. Morgan, 536 U.S. 101, 122 S.Ct. 2061, 153 L.Ed.2d 106 (2002). In National Railroad, the Supreme Court explicitly stated that
[d]iscrete acts such as termination, failure to promote, denial of transfer, or refusal to hire are easy to identify. Each incident of discrimination ... constitutes a separate actionable "unlawful employment practice." [Plaintiff] can only file a charge to cover discrete acts that "occurred" within the appropriate time period.
Id. at 114, 122 S.Ct. 2061. Additionally, this court has held that
unlike pattern and practice cases or harassment claims, the fact that a person continues to seek promotion does not mean that a continuing violation is present ... "To hold otherwise would ensure that every claim of denial of promotion to a higher paying position would toll the period to file one's charge as long as one merely continued to be employed in the lower position of employment."
Etefia, 2 F.Supp.2d at 757, quoting Soble v. University of Maryland, 572 F.Supp. 1509, 1516 (D.Md.1983). The allegations of discrimination in this case are clearly discrete acts and, thus, it is inappropriate to apply the continuing violation doctrine here.
In addition, the rationale behind the continuing violation doctrine clearly does not apply to this case. In Derrickson v. Circuit City Stores, Inc., 84 F.Supp.2d 679, 687 (D.Md.2000), this court held that "[t]he frequently-cited rationale for the law of continuing violations is that a plaintiff may not know of his claim until the culmination of a long period of discrimination makes clear the violation." That clearly is not the case here. Plaintiff claims to have been aware of the facts for several years which he believes give rise to a claim of discrimination. For example, he testified in his deposition that when he did not receive promotions in 1996 and 1998, he believed the reason to be because of his race. See Janey Dep. at 62-64. Yet, he did not file a charge of discrimination until October 2000. Having asserted that he was aware for several years of the alleged discriminatory basis for the failure to promote him, but yet remained silent, it is inappropriate for him to try to invoke the continuing violation doctrine at this stage.[3] For these reasons, the continuing violation doctrine does not salvage Plaintiffs failure to promote claims arising prior to December 10, 1999.
B. Failure to "Transfer" to HR Stores[4]
Plaintiff alleges that Defendants failed to transfer him to a job at HR *624 Stores after Hess Shoes went out of business because he is African-American.[5] In order to establish a prima facie case of discrimination in hiring, a plaintiff must prove that: (1) he is a member of a protected group; (2) the defendant had an open position for which the plaintiff applied or sought to apply; (3) he was qualified for the position; and (4) he was rejected under circumstances giving rise to an inference of discrimination. See Evans, 80 F.3d at 959-60; Carter, 33 F.3d at 458; Brown v. McLean, 159 F.3d 898, 902 (4th Cir.1998) (prima facie case is the same for failure to hire and failure to promote claims). In the instant case, Plaintiff may only assert claims of denials in hiring (or transfer) arising on or after December 10, 1999 because earlier claims are timebarred. Defendants argue that Plaintiff is unable to satisfy the second, third, and fourth elements of the prima facie case.
Defendants argue that Plaintiff cannot satisfy the second element because there was no open position for which Plaintiff applied or sought to apply. Specifically, they argue that the last position with HR Stores filled during the liquidation of Hess Shoes was filled on December 6, 1999, and that the next open position did not arise until the spring of 2000, when Plaintiff was already employed by Nordstrom's. Thus, even assuming that Plaintiff did apply for or seek a job during this time period, there were no openings for Plaintiff to fill. Plaintiff contends, citing Richardson's affidavit, that HR Stores did have vacancies which it sought to fill on and after December 13, 1999, when Plaintiff allegedly told Richardson that he would like to "stay on" with HR Stores. See Richardson Aff. ¶¶ 6, 7.
Defendants argue that the precise statement in Richardson's affidavit that there were job vacancies on and after December 13, 1999 should be disregarded because it is inconsistent with his sworn deposition testimony, in which Richardson only vaguely recalled that HR Stores hired some employees around the time of the announcement of the liquidation of Hess Shoes.[6]See Richardson Dep. at 27, 51-52. Defendants argue that it is a well established principal of law that the non-moving party opposing a summary judgment motion cannot offer an affidavit in opposition to said motion which is inconsistent with prior sworn testimony given in a deposition. See, e.g., Halperin v. Abacus Technology Corp., 128 F.3d 191 (4th Cir.1997), *625 abrogated on other grounds by Baird ex rel. Baird v. Rose, 192 F.3d 462 (4th Cir. 1999). The Fourth Circuit noted in Halperin that "`[i]f a party who had been examined at length on deposition could raise an issue of fact simply by submitting an affidavit contradicting his own testimony, this would greatly diminish the utility of summary judgement as a procedure for screening out sham issues of fact.'" Id. at 198, quoting Barwick, 736 F.2d at 960. See also Van T. Junkins & Associates, Inc. v. U.S. Industries, 736 F.2d 656 (11th Cir.1984) (party cannot create an issue with which to defeat summary judgment with an affidavit that contradicts, without explanation, earlier deposition testimony); Camfield Tires, Inc. v. Michelin Tire Corp., 719 F.2d 1361 (8th Cir.1983).
The statement in Richardson's affidavit about the precise time frame in which HR Stores conducted its hiring is inconsistent with the testimony given in his deposition.[7] Thus, the court agrees that it is inappropriate for Plaintiff to rely on the affidavit to raise a genuine issue of material fact and will disregard the statement in the affidavit that HR Stores had vacancies it sought to fill on or after December 13, 1999. Without that statement, Plaintiff is unable to counter Defendants' showing that there were no vacancies filled between December 6, 1999 and May 2000, when Plaintiff admits he did not seek employment with HR Stores. Thus, Plaintiff fails to forecast sufficient evidence that HR Stores had an open position after December 10, 1999 for which he applied or sought to apply and, therefore, cannot fulfill the second element of the prima facie case.[8]
Defendants also claim that Plaintiff cannot fulfill the fourth element of the prima facie case because he was not rejected for a position and the circumstances do not give rise to an inference of discrimination. Having failed to establish that there was an open position after December 10, 1999 for which he applied or sought to apply, it follows that Plaintiff could not have been rejected for such a position. Even if the court did not disregard Richardson's affidavit and found that HR Stores had a vacancy it sought to fill on or after December 13, 1999 (and that Plaintiff applied for said vacancy), Plaintiff still could not establish a prima facie case of failure to hire because he has forecast no evidence that the alleged open position was eventually filled by someone, let alone someone outside of Plaintiffs protected class. See, e.g., Derrickson v. Circuit City Stores, 84 F.Supp.2d 679, 699 (D.Md.2000). See also Nash v. Hudson Belk Co., 232 F.3d 888, 2000 WL 1421329 (4th Cir.2000) (plaintiff failed to establish a prima facie case of discrimination when the open position plaintiff sought was not filled by someone outside the protected class). It is undisputed that no employees were hired by HR Stores (or transferred from Hess Shoes) between December 6, 1999 and May 5, 2000, at which time Plaintiff was already working at Nordstrom's and admits that he was no longer interested in employment. The absence of evidence *626 that the allegedly open position was filled by someone else, particularly someone outside Plaintiffs protected class, undermines Plaintiffs ability to fulfill the fourth element of the prima facie case.
Additionally, the evidence forecast does not suggest circumstances that give rise to an inference of discrimination. For example, it is undisputed that of the three Hess Shoes employees hired by HR Stores on or before December 6, 1999, one was African-American, and that the first person hired by Kane on behalf of HR Stores in May 2000 was Henry Stevenson, an African-American man. In addition, three of the first six managers hired by HR Stores in May and June 2000 were African-American, and one of the three additional former Hess Shoes employees later hired by HR stores was African-American. These facts negate an inference of race discrimination, preventing Plaintiff from satisfying the fourth element even if Plaintiff had been rejected for a vacant position with HR Stores.
For the foregoing reasons, Defendants are entitled to summary judgment as to this claim.
C. Defendants' Alleged Pattern and Practice of Discrimination
Plaintiff alleges in his complaint that Hess Shoes engaged in a pattern and practice of promoting white employees over African-American employees for managerial positions. The Supreme Court has held that a plaintiff alleging a pattern and practice of discrimination must establish by a preponderance of the evidence that racial discrimination was the defendant's standard operating procedure. See Int'l Broth, of Teamsters v. U.S., 431 U.S 324, 336, 97 S.Ct. 1843, 52 L.Ed.2d 396 (1977). In the instant case, however, Plaintiff has forecast no evidence of a pattern and practice of differential treatment affecting other members of his protected class. The only statistical data possibly offered as evidence demonstrates that 5 out of 14 managers employed by Hess Shoes at the time of closing were African-American, see Kane Dep., Ex. 1, and that 7 out of 29 managers promoted by Kane overall were African-American, see Kane Dep. Ex. 2. Clearly, this is insufficient to establish that Hess Shoes had a standard operating procedure of discrimination. Plaintiff is required not to merely allege that this is a pattern or practice case, but to offer statistical evidence and anecdotal testimony to demonstrate that widespread discrimination exists, which he has failed to do. Thus, to the extent that Plaintiff is claiming that Hess Shoes engaged in a pattern and practice of discrimination, Hess Shoes is entitled to summary judgment as to that claim.[9]
IV. Conclusion
For the foregoing reasons, the motion for summary judgment by Hess Shoes and HR Stores will be granted. A separate Order will be entered.
ORDER
For the reasons stated in the foregoing Memorandum Opinion, it is this 24th day of June, 2003, by the United States District Court for the District of Maryland, ORDERED that:
1. Defendants' motion for summary judgment BE, and the same hereby IS, GRANTED;
*627 2. JUDGMENT BE, and the same hereby IS, ENTERED in favor of Defendants N. Hess Sons, Inc. and HR Stores, Inc., and against Plaintiff John C. Janey; and
3. The Clerk will transmit copies of the Memorandum Opinion and this Order to counsel for the parties and CLOSE this case.
NOTES
[1] Kane was formerly Vice President of Operations for Hess Stores and currently serves in the same position for HR Stores.
[2] Plaintiff appears to bring this claim against both parties, despite the fact that it was Hess Shoes that allegedly denied him the promotions. Plaintiff's argument is essentially that because Hess Shoes and HR Stores shared the same management during the liquidation of Hess Shoes, beginning on October 3, 1999, both served as Plaintiff's employers and are, therefore, proper Defendants. While this argument may be applicable to the failure to transfer/hire claim which allegedly occurred during the liquidation period, see footnote 5, Plaintiff does not allege that he was discriminatorily denied a promotion during the liquidation period. Even though HR Stores later shared the same management as Hess Shoes during the liquidation period and may have been Plaintiff's employer during that time, there is no evidence that HR Stores exerted any control over the promotion decisions of Hess Shoes prior to that time. Thus, HR Stores is not an appropriate Defendant for this claim. This argument is irrelevant, however, because Plaintiff has failed to establish a prima facie case as to any Defendant on this claim.
[3] Moreover, even if the continuing violation doctrine was appropriate in this case, it requires that an actual violation occur within the limitations period. See Hill v. AT & T Technologies, Inc., 731 F.2d 175, 179-80 (4th Cir.1984). However, as already discussed, Plaintiff has failed to establish a prima facie case of a violation, in the form of failure to promote, during the period relevant to the case. Nor, as will be discussed, has Plaintiff established a prima facie case of failure to transfer during that period.
[4] While unclear in the complaint, Plaintiff now characterizes this claim as a failure to transfer, rather than a failure to hire. Despite the different terminology, Plaintiff has essentially alleged that he was not hired to work for the new HR Stores corporation after having lost his job due to the closure of Hess Shoes; therefore, this claim will be analyzed under the case law for claims of failure to hire.
[5] Although not a model of clarity, Plaintiff's opposition asserts that both Hess Shoes and HR Stores are proper Defendants for the claim of failure to transfer because they shared the same management, specifically Mr. Kane, during the time period when Hess Shoes was undergoing liquidation, beginning on October 3, 1999. Plaintiff notes that one of the five established factors in determining whether an employer-employee relationship exists is the power to select and hire the employee. See Mackall v. Zayre Corp., 293 Md. 221, 230, 443 A.2d 98 (1982). Plaintiff also notes, citing Mackall, that an employee may simultaneously work for two employers. Id. at 229, 443 A.2d 98. Because the management of Hess Shoes had entered into an agreement to operate HR Stores during the liquidation of Hess Shoes, apparently including hiring (or transferring) employees on behalf of the new entity, both entities are proper Defendants in Plaintiff s claim of discriminatory failure to hire/transfer.
[6] Defendants also seek to have the court disregard for the same reason the statement in Richardson's affidavit that Plaintiff approached him on or around December 13, 1999 to ask to stay on with HR Stores. This discussion is irrelevant, however, because Plaintiff has provided evidence outside of Richardson's affidavit that Janey sought a job with HR Stores in January 2000, if not earlier. See, e.g., Perez Dep. at 13; Janey Dep. at 111.
[7] The court notes that the date in Richardson's affidavit, December 13, 1999, also suddenly correlates with the time period after December 10, 1999, which is the cut-off date after which claims are timely.
[8] Defendants argue in their motion for summary judgment that, in any event, Plaintiff was unqualified for a position with HR Stores because HR Stores employees must perform managerial responsibilities in addition to sales, and Plaintiff, they argue, lacked managerial experience. The court need not address this argument, however, having determined that Plaintiff failed to forecast that there was any position available after December 10, 1999 for which he applied or sought to apply.
[9] Plaintiff raises for the first time in his opposition to the motion for summary judgment allegations of unequal pay among white and African-American employees at Hess Shoes. To the extent that Plaintiff is trying to bring a new claim, he may net do so at this stage having included these allegations neither in his HRC charge nor in his complaint.
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[Cite as State v. Patrick, 2016-Ohio-3283.]
STATE OF OHIO, MAHONING COUNTY
IN THE COURT OF APPEALS
SEVENTH DISTRICT
STATE OF OHIO, )
)
PLAINTIFF-APPELLEE, )
) CASE NO. 14 MA 93
V. )
) OPINION
KYLE PATRICK, )
)
DEFENDANT-APPELLANT. )
CHARACTER OF PROCEEDINGS: Criminal Appeal from Court of Common
Pleas of Mahoning County, Ohio
Case No. 12 CR 969
JUDGMENT: Reversed and Remanded
APPEARANCES:
For Plaintiff-Appellee Paul Gains
Prosecutor
Ralph M. Rivera
Assistant Prosecutor
21 W. Boardman St., 6th Floor
Youngstown, Ohio 44503
For Defendant-Appellant Attorney Edward A. Czopur
42 North Phelps St.
Youngstown, Ohio 44503
JUDGES:
Hon. Gene Donofrio
Hon. Mary DeGenaro
Hon. Carol Robb
Dated: June 1, 2016
[Cite as State v. Patrick, 2016-Ohio-3283.]
DONOFRIO, P.J.
{¶1} Defendant-appellant, Kyle Patrick, appeals the decision of the
Mahoning County Common Pleas Court denying his presentence motion to withdraw
his guilty plea.
{¶2} On September 27, 2012, Appellant was indicted and charged with
aggravated murder (R.C. 2903.01(B)(F)) with a firearm specification (R.C.
2941.145(A)); aggravated robbery (R.C. 2911.01.01(A)(1)(C)) with a firearm
specification (R.C. 2941.145(A)); and tampering with evidence (R.C. 2912(A)(1)(B)).
At the time, Appellant was 17 years of age. On August 24, 2012, the Juvenile Court
filed an Agreed Judgment Entry relinquishing jurisdiction and transferring this matter
to the General Division of the Court of Common Pleas.
{¶3} On February 10, 2014, the day he was scheduled for trial, Appellant
plead guilty to murder (R.C. 2903.02(A)(D)); aggravated robbery (R.C.
2911.01(A)(1)(C)); tampering with evidence (R.C. 2921.12(A)(1)(B)); and two firearm
specifications with regard to the murder and aggravated robbery (R.C. 2941.141).
His plea was the result of last minute negotiations with Plaintiff-appellee, State of
Ohio, before the commencement of trial.
{¶4} During the plea hearing on February 10, 2014, the trial court explained
to Appellant that he was not eligible for community control, that he would be going to
prison, and that he could be sentenced to 15 years to life for murder; one year for the
firearm specification that had to be served prior to and consecutive to the sentence
for murder (in other words, 16 years to life for these two convictions); a maximum of
11 years for aggravated robbery; and a maximum of three years for tampering to run
concurrently with the murder sentence. Appellant indicated that he understood. (2-10-
14, Tr. 14). The trial court then indicated it would follow the State’s recommendation
that Appellant be sentenced to 16 years to life, i.e., 15 years to life on the murder and
one year on the firearm specification to run consecutively, 11 years for aggravated
robbery to run concurrently with the foregoing, and 36 months for tampering, also to
be served concurrently. (2-10-14, Tr. 8). The trial court ordered a presentence
investigation and set sentencing for March 10, 2014.
-2-
{¶5} On February 18, 2014, Appellant, pro se, filed his “NOTICE OF
WITHDRAWAL OF GUILTY PLEA” and asserted that since he had not been
sentenced, he did not need to state a cause for his withdrawal.
{¶6} On March 7, 2014, counsel for Appellant also filed a motion to withdraw
the guilty plea asserting, inter alia, that the motion should be granted because
Appellant had not been provided sufficient time to appreciate the consequences of
his plea; that Appellant timely indicated his desire to withdraw his plea; and that the
granting of the motion would not prejudice the State.
{¶7} The State filed a Memorandum Contra to Appellant’s motion on April 2,
2014. The State asserted that Appellant failed to satisfy the legal criteria to justify the
granting of his motion; Appellant had competent counsel; he was given a full hearing
to discuss the terms and conditions of his plea; he failed to give a reasonable and
legitimate basis for the withdrawal of his plea; and the State had released witnesses
who subsequently moved out of town and halted its investigation and preparation for
trial.
{¶8} The trial court held the first hearing on Appellant’s motion on April 28,
2014. During the hearing, the trial court discussed factors to be considered in
deciding whether or not to grant the motion, heard the testimony of Appellant, and
heard argument from counsel for both parties.
{¶9} The assistant prosecuting attorney with the most knowledge as to
whether or not the State would be prejudiced by the granting of Appellant’s motion
was unable to attend the April 28, 2014, hearing. The trial court asked about the
potential prejudice to the State: “Do you know if these witnesses are material or if
they are, for lack of a better word, peripheral?” (4-28-14, Tr. 16). The assistant
prosecutor attending on behalf of the State responded - “I do not know * * * don’t
want to misrepresent anything to the court.” (4-28-14, Tr. 16).
{¶10} The trial court stated it did not feel comfortable ruling on the motion
without knowing what the prejudice to the State might be – “If they are material
witnesses, and if the state is going to be unable to proceed at trial as it relates to the
-3-
original indictment, then certainly that may be a very strong factor for me to consider
in determining whether or not this motion should be granted.” (4-10-14, Tr. 16-17).
{¶11} On May 15, 2014, approximately three months after Appellant filed his
first notice indicating he wished to withdraw his plea, the State filed the affidavit of the
assistant prosecutor who could respond to the trial court’s concern about any
prejudice to the State’s case. That affidavit addressed the availability of four
witnesses – Aric Longcoy, Chalsea Daviduk, Stephanie Daviduk, and a juvenile
witness.
{¶12} With regard to Longcoy, the affidavit provided that Longcoy never
appeared for an interview and did not respond to a subpoena. Longcoy’s father said
Longcoy was living on the street in Cleveland and had no address or telephone
number. The affidavit stated that on the day of trial Longcoy called and said he was
on his way. He then was told of the plea. He did not appear. The State has had no
further contact with him. The affidavit said several other witnesses (unidentified)
represented that Loncoy was going to move to Florida. The affidavit provided that
Longcoy’s testimony was “material and crucial” because he could identify Appellant,
would provide information about the plan and motive of Appellant, and would provide
evidence concerning Appellant’s possession of the phone used to lure the victim into
the hands of Appellant just prior to the alleged murder, something another witness
(Reginald Whitfield) refused to do.
{¶13} As to the Daviduks, the affidavit indicated that they, too, did not appear
before the day of trial and had moved to a new address. The Daviduks were to
provide evidence regarding Appellant’s destruction of evidence, including the gun,
and the “victim’s property in a Struthers dumpster.”
{¶14} The State’s affidavit stated that the juvenile witness was a known
runaway and had been incarcerated in the Juvenile Justice Center at the time of trial
but that her current location was unknown. The juvenile was to provide information as
to Appellant’s whereabouts after the murder. Later, Appellant would assert that he
had located this witness at a treatment center in Lucasville. In response, affiant
-4-
stated - “I don’t know how available to us she would be.” (6-17-14, Tr. 9).
{¶15} Finally, affiant represented that she believed “all of these witnesses
were material, that allowing the DEFENDANT to withdraw his plea would prejudice
the State because we [the State] would have to start at square one in locating and
maintaining a location on these witnesses.” (Affidavit at ¶ 6).
{¶16} Prior to the date of trial, on February 6, 2014, the State filed a witness
list containing 34 witnesses. It is unclear whether the juvenile identified in the affidavit
is on the list. None of the other 30 witnesses are discussed anywhere in the record.
{¶17} A second hearing on the Appellant’s motion to withdraw his plea was
held on June 17, 2014. After hearing argument from both counsel, the trial court
reviewed the criteria to be considered when ruling on a presentence motion to
withdraw a plea. The trial court denied Appellant’s motion and proceeded to sentence
Appellant pursuant to the plea agreement and in accord with the State’s
recommendation set forth above. Appellant filed this appeal.
{¶18} Appellant sets forth one assignment of error:
THE TRIAL COURT ABUSED ITS DISCRETION IN DENYING
APPELLANT’S MOTION TO WITHDRAW AND, IN SO DOING,
ASSIGNED GREATER WEIGHT TO THE, ALLEGED, PREJUDICE TO
THE STATE AS AGAINST ALL OTHER FACTORS FOR
CONSIDERATION OF SUCH A MOTION.
{¶19} Crim. Rule 32.1, “Withdrawal of Guilty Plea”, provides:
A motion to withdraw a plea of guilty or no contest may be made only
before sentence is imposed; but to correct manifest injustice the court
after sentence may set aside the judgment of conviction and permit the
defendant to withdraw his or her plea.
{¶20} The Rule distinguishes between a presentence motion to withdraw a
guilty plea and a postsentence motion. A postsentence motion is allowed “to correct
-5-
manifest injustice.”
{¶21} The Ohio Supreme Court has explained that Rule 32.1 provides no
guidelines for a trial court when ruling on a presentence motion to withdraw a guilty
plea. State v. Xie, 62 Ohio St.3d 521, 526, 584 N.E.2d 715 (1992) (Moyer, C.J. and
Brown, J., dissenting). The Supreme Court has explained that a pretrial motion to
withdraw a plea is to be freely allowed and treated with liberality. Id. at 527. However,
the Supreme Court also explained that one who enters a guilty plea has no absolute
right to withdraw it. Id. It is within the sound discretion of the trial court to determine
what circumstances justify granting such a motion and that, unless it is shown that
the trial court acted unjustly or unfairly, there is no abuse of discretion. Id. at 526.
Thus, despite the fact that presentence motions are to be liberally granted, in
reviewing the trial court’s ruling an abuse-of-discretion standard is applicable. Id.
{¶22} In Xie, it was clear that the defendant was given erroneous advice by
his counsel as to when he would be eligible for parole (he was told if he was
convicted he would be eligible in a minimum of 23 years when he actually would have
been eligible in 17 years). The trial court nonetheless denied the motion to withdraw
the plea. The Tenth District Court of Appeals reversed the trial court asserting that
the trial court incorrectly applied the “manifest injustice” standard. The Supreme
Court disagreed and reinstated the trial court’s decision denying the motion to
withdraw the plea explaining:
It is not the role of an appellate court to conduct a de novo review of a
trial court's decision in these circumstances. We do not find that the trial
court's decision was unreasonable, arbitrary or unconscionable. We
therefore reverse the decision of the court of appeals that the trial court
abused its discretion.
Id. at 527.
{¶23} The First Appellate District subsequently addressed the juxtaposition of
a rule providing that presentence motions to withdraw a guilty plea should be freely
-6-
and liberally granted but in reviewing these decisions the abuse of discretion
standard is to be used. In State v. Fish, 104 Ohio App.3d 236, 661 N.E.2d 788 (1st
Dist. 1995), the court observed that the “liberally and freely” granted directive loses
some meaning if the standard on review is “abuse of discretion” with no guidelines
whatsoever. Id. at 239. Although this issue was moot in the Fish decision, the court
addressed it nonetheless. It explained that lack of prejudice to the state is “simply
one factor, albeit an extremely important factor, in the analysis of whether such a
motion should be granted * * * there are numerous additional factors which should be
weighed[.]” Id. at 240.
{¶24} This court has adopted the factors set forth in Fish to weigh in
considering a presentence motion to withdraw a plea: (1) whether the state will be
prejudiced by withdrawal; (2) the representation afforded to the defendant by
counsel; (3) the extent of the Crim.R. 11 plea hearing; (4) whether the defendant
understood the nature of the charges and potential sentences; (5) the extent of the
hearing on the motion to withdraw; (6) whether the trial court gave full and fair
consideration to the motion; (7) whether the timing of the motion was reasonable; (8)
the reasons for the motion; and (9) whether the accused was perhaps not guilty or
had a complete defense to the charge. See, e.g., State v. Thomas (Dec. 17, 1998),
7th Dist. Nos. 96CA223, 96CA225, 96CA226 (Dec. 17, 1998), citing Fish at 240; see
also, State v. Adams, 7th Dist. No. 12 MA 9, 2012-Ohio-5979; State v. Morris, 7th
Dist. No. 13 MA 19, 2014-Ohio-882; and State v. Peck, 7th Dist. No. 14 MA 56, 2015-
Ohio-1279. Consideration of the factors is a balancing test and no one factor is
conclusive. Fish at 240. Since the Fish decision, many courts have used the Fish
analysis. See, e.g., State v. Jefferson, 1st Dist. No. C-020802, 2003-Ohio-4308;
State v. Young, 2d Dist. No. 2003 CA 89, 2004–Ohio–5794; State v. Davison, 5th
Dist. No. 2008–CA–00082, 2008–Ohio–7037.
{¶25} The nine Fish criteria are discussed below.
Would the granting of the motion prejudice the State?
{¶26} Appellant emphasizes this Fish factor and argues that the trial court
-7-
gave undue weight to this factor instead of giving equal weight to all the factors. The
State responds essentially arguing that its witnesses are transient and some have
moved out of state. Thus, the State asserts it would be prejudiced by the granting of
Appellant’s motion. Even if it were not prejudiced by the granting of the motion, the
State argues, citing State v. Leasure, 7th Dist. No. 01 BA 42, 2002-Ohio-5019, this is
only one of the factors to be considered.
{¶27} At the first hearing on Appellant’s motion on April 28, 2014, the trial
court questioned the State regarding the possible prejudice to the State. The trial
court indicated that it wanted to know who the witnesses were that left the state,
whether the witnesses would return for trial, and whether their testimony was critical
to the State’s ability to proceed. (4-28-14, Tr. 18-19). A second hearing regarding this
issue was eventually held on June 17, 2014.
{¶28} On May 15, 2014, the State filed the affidavit of an assistant prosecutor
with knowledge about the possible prejudice to the State. The affiant identified four
witnesses who affiant asserted were critical and potentially unavailable.
{¶29} The first witness, Aric Longcoy, was to testify about the identity, plan,
and motive of Appellant. Loncoy also was to testify that Appellant had possession of
the phone used to lure the victim to the scene of the murder. Another witness,
Reginald Whitfield, refused to provide this testimony. However, the State’s affidavit
admits that Longcoy was previously scheduled for an interview in the prosecutor’s
office but never appeared. A subpoena was then served but, still, Longcoy did not
appear. Longcoy’s father apparently told the State that Longcoy was living on the
street in Cleveland and had no address or phone. The State’s affidavit explains that
several attempts were made to contact Longcoy with no success. However, the
affidavit states Longcoy called on the day of trial and said he was on his way. He did
not appear after being told that a plea agreement was reached.
{¶30} Chelsea Daviduk and Stephanie Daviduk were also identified in the
affidavit and were to provide testimony that Appellant destroyed evidence and about
the location of the victim’s property in a dumpster in Struthers, Ohio. However, the
-8-
State’s affidavit, as with Loncoy, reveals that the Daviduks never appeared before the
day of trial. The affidavit simply states that the Daviduks moved and are no longer at
the same address. Appellant suggested at the second hearing on June 17, 2014, that
Stephanie may already have been in Florida on the original trial date. (6-17-14, Tr. 5).
{¶31} The last witness identified is a juvenile and, on the date of trial, was
incarcerated in the Juvenile Justice Center. She was to testify about Appellant’s
whereabouts after the murder. The affidavit provides that her current address was
unknown. At the June 17, 2014 hearing, the Appellant suggested that this witness
was in a treatment facility in Lucasville. The State’s response was that it was unsure
how available this witness might be.
{¶32} At the second hearing on June 17, 1014, scheduled specifically to allow
the state to explain what prejudice it would suffer if Appellant’s motion were granted,
the State represented to the trial court that on the day of trial two witnesses
appeared. The State did not identify the witnesses. (6-17-14, Tr. 9). Also, at that
hearing, the State asserted it “would be prejudiced because of these ongoing witness
problems, and these are transient people who have different addresses every other
month, every other week. So we would be prejudiced.” (6-17-14, Tr. 10).
{¶33} We note that Appellant’s motion was timely filed within eight days of his
plea. The State offered no evidence to demonstrate what it did, if anything, to locate
these witnesses after Appellant’s motion to withdraw was filed. We expressed a
similar concern in State v. Peck, 7th Dist. No. 14-MA-56, 2015-Ohio-1279, at ¶ 25-26.
The State’s affidavit makes clear that Longcoy and the Daviduks never appeared
before trial for even a meeting, and Longcoy ignored a subpoena. It is equally clear
that the difficulty with these witnesses existed prior to the trial date and prior to the
guilty plea. Under these circumstances, it is speculative as to if, and when, any of
these witnesses might appear, regardless of Appellant’s motion to withdraw his plea.
{¶34} The State never explained whether it could proceed, and to what
degree of effectiveness, using the other identified 30 witnesses. (State’s Witness
List). At the April 28, 2014 hearing the State asserted “that there is a myriad of
-9-
evidence that shows that Mr. Patrick was there, that he participated not just in the
murder, but in the tampering and the robbery as well.” (4-28-14, Tr. 14). The State
does not explain the importance of these four witnesses vis a vis the myriad of
evidence and the other 30 witnesses.
{¶35} The State’s failure to attempt to contact witnesses to determine their
availability cannot form the basis of future prejudice. In Peck, the State argued that it
had no contact with witnesses since the plea, that the availability of witnesses was in
jeopardy, and that evidence might have been destroyed. This Court, noting the failure
to attempt to contact witnesses and the fact that possible destruction of evidence was
only speculation, concluded that this factor weighed in favor of neither party. Peck at
¶ 26.
{¶36} After hearing argument on this issue, the trial court stated:
* * * but my determination as I think I indicated at the last hearing rises
or falls on the potential prejudice to the state. And, there is, in fact, an
affidavit before me indicating that Eric [sic] Longcoy is material and
crucial to the prosecution because he provides evidence which
establishes the identity of the defendant; plan and motive; that he puts
the phone used to lure the victim in the defendant’s hands just prior to
the murder; that Longcoy never appeared for an interview at the
prosecutor’s office. Although a subpoena was issued, he did not
appear pursuant to that subpoena, and that his father indicated that he
was living on the streets in Cleveland without an address. And that
although on the day of trial he called and said he was on his way, once
the fact that the plea was negotiated, was relayed to him, there’s been
no contact, and through several other witnesses, the state avers in the
affidavit that it was his intention to move to Florida.
(6-17-14, Tr. 15-17).
{¶37} The issue presented to the trial court was whether the granting of
- 10 -
Appellant’s motion would prejudice the State. We find that any prejudice to the State
in light of these facts is supposition. Thus, this factor weighs in favor of granting
Appellant’s motion. We also find that the trial court placed undue weight on this factor
as compared to the other Fish factors.
Whether Appellant was represented by competent counsel
{¶38} Prior to the date of the plea, there was apparently little, if any,
discussion about a plea agreement. This was, allegedly, because Appellant wanted
“straight time.” The State would not agree.
{¶39} On the morning of the trial, when the plea offer was made, Appellant
discussed the plea with his family who encouraged him to accept the offer.
Appellant’s counsel recommended against accepting the offer. Appellant asked if he
could “sleep on it” but his counsel responded that this was not possible. (4-28-14, Tr.
3-4). The day before the trial, Appellant received over 900 pages of discovery from
his counsel. He spent a good part of the night before trial reading these documents.
He testified that he did not understand all of the materials. (4-28-14, Tr. 10-11).
Counsel explained that withholding discovery from his client until the eve of trial was
a strategic move. The trial court commented that as a prior trial counsel, he could
understand this to be a strategic decision. (Apparently, since Appellant was
incarcerated, there was concern about possible discussions regarding the evidence
with others who were incarcerated). Appellant, while not otherwise questioning the
competency of counsel, contends that not giving Appellant adequate time to digest
this information hindered his ability to make an informed decision about the plea
offer.
{¶40} The State notes that the trial court observed that withholding discovery
is understandable as a strategic decision – “I certainly understand trial strategy. It
certainly sounds like a very good reason why discovery might be withheld from a
client until the eve of trial.” (4-28-14, Tr. 17). Further, the State notes that Appellant
expressed complete satisfaction with counsel at the plea hearing. (2-10-14, Tr. 9).
Thus, the State contends that this explanation fails to support the reversal of the trial
- 11 -
court’s decision.
{¶41} Troubling is the fact that counsel told Appellant that it was not possible
to secure an additional day to consider the plea offer. The basis for this comment is
not clear from the record, and since counsel did not ask for additional time, we can
only speculate as whether additional time would have been granted by the court or
the prosecutor.
{¶42} Although counsel was competent, this factor weighs in Appellant’s favor
as additional time could have been requested by counsel when Appellant was
making such an important decision as this one, especially where he received different
opinions from counsel and family members, as was mentioned above.
Whether Appellant was given a full Criminal 11 hearing before his plea
{¶43} Appellant does not contend that the Crim.R. 11 plea colloquy supports
a reversal except to the extent that it relates to whether or not Appellant understood
the nature of the charges against him and the possible penalty. These concerns are
discussed below. This factor, then, weighs against Appellant.
Whether the accused understood the nature of the charges and possible
penalties
{¶44} Appellant contends that he did not understand the effect of the life
sentence and thought he would be released after 16 years. He also claims he did not
understand that he would have to face a parole board before he could be released.
(Appellant’s Brief, p. 6). At the April 28, 2014 hearing on his motion, Appellant
testified: “And then the next day I was brought here and offered a deal for 16 years to
life that I thought maybe would be a good deal, but didn’t know that I would have to
see the parole board in 16 years * * *.” (4-28-15, Tr. 11).
{¶45} Appellant does not assert that the trial court was under any legal
obligation to discuss the role of the parole board regarding Appellant’s potential
release from prison, only that he did not understand its involvement.
{¶46} Appellant signed a written plea that did not discuss the parole board
issue. Neither was there any discussion of the parole board’s role at the plea hearing.
- 12 -
The plea agreement did state that the sentence would be 16 years to life. There is
nothing in the record that suggests, as he now argues, that this was “straight time”
and that he would, in fact, necessarily be released after 16 years. But, when
combined with his timely request to withdraw and the need to make an immediate
decision, it is likely that he did not fully understand the implication of the life sentence
and the future need to face the parole board. Since a presentence motion to
withdraw a plea is to be freely and liberally granted, this factor weighs in Appellant’s
favor.
Whether a full hearing was held on the motion
{¶47} Appellant does not assert any problem with the trial court’s compliance
with this requirement. This weighs against Appellant.
Whether the trial court gave full and fair consideration to the motion
{¶48} Appellant contends that “the trial court indicated that the entire motion
rises or falls on prejudice to the State.” (Appellant’s Brief, p. 7). The first hearing on
Appellant’s motion was continued to allow the State to have the appropriate
prosecuting attorney appear to answer questions with regard to any prejudice to the
State. The trial court stated that this was necessary to give a full and complete
hearing on Appellant’s motion to withdraw. (4-28-14, Tr. 18-19).
{¶49} Then, at the next hearing, the trial court, immediately before denying
Appellant’s motion and sentencing him, stated: “but my determination as I think I
indicated at the last hearing rises or falls on the potential prejudice to the state.” (6-
17-14, Tr. 15-16). Appellant contends that this demonstrates that the trial court failed
to give fair consideration to his motion.
{¶50} The trial court did hear Appellant with regard to his motion at two
hearings. During his first hearing, counsel noted that at the time of the indictment
Appellant was a juvenile, counsel explained the lack of plea negotiations up to the
day of trial and what happened on the day of trial, his concern about Appellant’s
ability to digest all the information he was receiving, and Appellant’s request to “sleep
on it”. Counsel explained that Appellant discussed the plea offer with his family.
- 13 -
Counsel told the trial court that he recommended that Appellant not accept the plea.
Counsel told the trial court that it was Appellant’s desire now to go to trial, that the
motion was timely filed, and that Appellant did not initially understand that he would
need to appear before a parole board to secure a release from prison. Appellant now
asserted his innocence.
{¶51} Appellant testified at that hearing about his difficulty trying to read 900
pages of discovery the evening before trial and that he had to make a life changing
decision in a short period of time. He testified that he asked his counsel if he could
have more time to think about the offer but was told he could not.
{¶52} The trial court also listened to arguments by the State. At the end of the
hearing, the trial court continued the hearing to allow the State to bring in another
assistant prosecutor to explain the prejudice to the State. A second hearing on the
motion was held to allow the State the opportunity to demonstrate possible prejudice
to the State. The trial court afforded each side an opportunity to present its case and
argument. Thus, we conclude that the trial court gave full and fair consideration to the
motion. This factor, then, weighs against Appellant.
Whether the motion was made within a reasonable time
{¶53} The State concedes that the motion was timely filed and that this fact
weighs in favor of granting Appellant’s motion.
Whether the motion sets out specific reasons for the withdrawal
{¶54} Appellant asserts three reasons for his request to withdraw his plea.
First, he is innocent and wishes to proceed to trial. Second, he did not understand
the effect of a life sentence on his release. Third, he did not have enough time to
make an informed decision. (4-28-14, Tr. 3-4; 10-11).
{¶55} The State responds indicating that Appellant’s reasons are nothing
more than a “change of heart.” (Appellee’s Brief, p. 11).
{¶56} In Adams, defendant engaged in plea negotiations for over two years
during the pendency of the matter. On either the day before or the morning of trial,
the State agreed to a lower recommendation. The State indicated there was a day
- 14 -
and half of extensive negotiations. This Court nonetheless indicated these facts
weighed in favor of the defendant. Adams at ¶ 33.
{¶57} Here, Appellant complains that he is innocent, that he did not
understand the effect of a life sentence with regard to his future release from prison,
and that he did not have enough time to make an informed decision. These reasons,
coupled with the timely notice that he wished to withdraw his plea, are more than a
simple change of heart and support Appellant’s motion.
The Existence of a Meritorious Defense
{¶58} At the first hearing on his motion, Appellant asserted his innocence –
“You got the wrong guy * * * I didn’t do it, Your Honor.” (4-28-14, Tr. 11). He told the
trial court he could prove he did not commit the murder and he wanted the victim’s
family to know he did not hurt the victim. (4-28-14, Tr. 11). This is the only evidence
in the record regarding guilt or innocence.
{¶59} The State, relying on State v. Kramer, 7th Dist. No. 01-CA-107, 2002-
Ohio-4176, ¶ 58, claims that Appellant’s assertions are nothing more than a change
of heart. In Kramer, defendant argued both innocence and self-defense. This Court
concluded that these assertions added little if any weight to defendant’s reasons for
withdrawing her plea. Kramer at ¶ 53.
{¶60} This Court is cognizant of the difficulty in determining the merits of a
defense prior to the presentation of any evidence. We cannot conclude, as the State
argues, that Appellant’s motion here is just a change of heart. Thus, we find that this
factor is either neutral and neither weighs for or against the granting of Appellant’s
motion to withdraw his plea.
Conclusion
{¶61} According to Xie, presentence motions to withdraw a plea are to be
liberally granted. Keeping this principle in mind, we have reviewed whether or not the
trial court abused its discretion in ruling on the presentence motion to withdraw the
plea in light of the nine factors found in State v. Fish. We conclude that the totality of
all of the factors weigh in Appellant’s favor and that the trial court abused its
- 15 -
discretion by giving undue weight to the possible prejudice to the State.
{¶62} Accordingly, Appellant’s assignment of error is sustained. For the
reasons cited above, the trial court’s judgment denying Appellant’s motion to
withdraw his guilty plea is reversed. This cause is remanded to the trial court for
further proceedings according to law and consistent with this opinion.
DeGenaro, J., concurs.
Robb, J., dissents with attached dissenting opinion.
Robb, J., dissenting opinion.
{¶63} I respectfully dissent to the ruling that the trial court abused its
discretion in denying Appellant’s plea withdrawal motion. I cannot find the trial court’s
decision in this case was unreasonable, unconscionable, or arbitrary as required by
the Xie case. State v. Xie, 62 Ohio St.3d 521, 527, 584 N.E.2d 715 (1992) (and the
decision must be more than a mere error of law or judgment). Although a
presentence motion to withdraw a guilty plea should be “freely and liberally” granted,
this standard should not be employed for construing the evidence on each individual
plea withdrawal factor to find it favorable to the defendant and then again as all
factors are reviewed collectively. Rather, it is an overriding premise governing the
trial court’s exercise of discretion while weighing the various factors.
{¶64} Notably, the Fish factors are court-created guidelines to benefit courts
in exercising their discretion. Consideration of the factors is a balancing test, and no
one factor is conclusive. State v. Jones, 7th Dist. No. 09-MA-144, 2011-Ohio-1648, ¶
30. In fact, the list is non-exhaustive. State v. Easterly, 7th Dist. No. 12 MA 208,
2013-Ohio-2961, ¶ 25. It is squarely within the province of the trial court to assess
credibility of those making the various claims involved in presenting certain factors.
“Abuse-of-discretion review is deferential and does not permit an appellate court to
simply substitute its judgment for that of the trial court.” State v. Darmond, 135 Ohio
St.3d 343, 2013-Ohio-966, 986 N.E.2d 971, ¶ 34.
- 16 -
{¶65} Appellant’s motion to withdraw his guilty plea was filed expeditiously.
Yet, it contained no reasons for plea withdrawal. Counsel’s subsequent
supplemental motion merely said Appellant had insufficient time to fully appreciate
the consequences of the plea offer. Additional reasons disclosed at the hearing were
not provided in the filings, e.g., he did not realize the parole board would be the entity
to decide whether he would be released after sixteen years in a sentence of sixteen
years to life, and he was up late reviewing discovery (a trial tactic of his attorney).
{¶66} The state’s memorandum in opposition to plea withdrawal explains why
the evidence, including Appellant’s statement to police, points to the conclusion that
Appellant was the shooter. At the hearing, Appellant expressed, “* * * I hurt that guy.
I didn’t do it, Your Honor.” Counsel advised Appellant not to take the plea, but
Appellant took his mother’s advice. He then had a change of heart. Counsel was
found to have rendered competent performance. Providing some discovery to his
client late (in order to avoid other inmates viewing the contents) was said to be a
valid trial strategy.
{¶67} In addition, there was a prior plea offer asking Appellant to plead to the
offenses as charged in the indictment with a related sentencing recommendation.
See State’s Memorandum in Opposition at 3; (April 28, 2014 Hrg. at 3). His counsel
unsuccessfully sought a plea deal involving “flat” time. (April 28, 2014 Hrg. at 14);
(June 17, 2014 Hrg. at 8). On the morning of trial, the state offered to reduce the
aggravated murder charge to murder and to recommend 18 years to life. (Feb. 10,
2014 Plea Hrg. at 2-6). The court memorialized Appellant’s rejection of this offer on
the record and reviewed the offenses and sentences involved. After this was
rejected, the state offered to amend the firearm specification from a three-year to a
one-year specification and to recommend 16 years to life. It was within the trial
court’s province to discount Appellant’s claim about his awareness of the nature of
the tail on his sentence or which entity would be responsible for his potential release.
{¶68} A last-minute plea offer on the morning of trial is not a situation where
counsel is expected to ask for a continuance. The offer belongs to the state, not the
- 17 -
court. Jury selection was delayed the morning of trial to accommodate consideration
of the two plea offers provided that morning. After reviewing the transcript of the plea
hearing, defense counsel voiced that he took no issue with the extent of the plea
hearing. (June 17, 2014 Hrg. at 3). There is no dispute the trial court conducted a
full hearing on the plea withdrawal motion. The court listened to the parties
arguments on the various factors and discussed the application of the various factors
at the hearing.
{¶69} Finally, while prejudice to the state is but one factor, I do not agree with
the reviewing court’s discounting of the state’s claim of prejudice here. The assistant
prosecutor noted she came to court with material witness warrants ready in case the
witnesses, whom they took “great steps” to find for trial, did not appear. The state
provided examples of four witnesses that were considered transient and/or no longer
residing at their prior locations. At least one was an important witness to events
contemporaneous with the shooting. The prosecutor explained prior issues with
finding this witness. For instance, police were sent to his father’s house four times,
and his father told police he was living on the street in Cleveland. This witness called
the prosecutor on the day of trial to report he was on his way to court. Relying on
Appellant’s plea, the prosecutor advised this witness he need not be present; she
told this witness there had been a plea. I believe the trial court had the discretion to
assign weight to the prosecutor’s concerns.
{¶70} In reviewing the totality of the circumstances and the various factors, I
cannot conclude the trial court’s decision was unreasonable, unconscionable, or
arbitrary. I therefore dissent.
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903 F.2d 545
Billy Ray HALE, Appellant,v.A.L. LOCKHART, Director, Arkansas Department of Correction, Appellee.
No. 89-1534.
United States Court of Appeals,Eighth Circuit.
Submitted Feb. 12, 1990.Decided May 10, 1990.
Daniel D. Becker, Hot Springs, Ark., for appellant.
Olan W. Reeves, Little Rock, Ark., for appellee.
Before ARNOLD and BOWMAN, Circuit Judges, and HUNTER,* District Judge.
BOWMAN, Circuit Judge.
1
Billy Ray Hale, an inmate of the Arkansas Department of Correction, is currently serving five concurrent life sentences and an additional concurrent twenty-year term of imprisonment after pleading guilty to one count of first-degree murder, four counts of aggravated robbery, and one count of battery. As a result of the plea negotiations, the original capital felony murder charge filed against Hale was reduced to first degree murder, thereby reducing the maximum available penalty from death to life imprisonment. After exhausting his state remedies, Hale filed a petition for a writ of habeas corpus pursuant to 28 U.S.C. Sec. 2254 (1982). The petition was denied by the District Court1 and Hale now appeals.
2
Hale argues that (1) the lapse of three years between the date he filed his habeas petition and the date of the final order denying and dismissing the petition constitutes a denial of due process; (2) his trial counsel was ineffective; (3) his guilty plea was involuntary; and (4) procedural defects render the plea and sentencing hearing "null and void." We affirm the judgment of the District Court denying Hale habeas relief.
I.
3
Hale filed his habeas petition on November 25, 1985 and the petition ultimately was denied and dismissed on November 22, 1988. Hale claims that the lapse of almost three years between the date he filed his habeas petition and final disposition by the District Court constitutes a denial of due process. The procedural path of Hale's habeas petition was long, and we relegate a detailed chronology to a footnote.2 Specifically, Hale argues that a seven-month delay by the state in producing a transcript and the deliberate pace of the District Court in issuing its rulings combine to constitute an unconstitutional delay in processing his habeas petition and require that we order the writ to issue. We disagree.
4
We note at the outset that no court has ordered a habeas writ to issue solely because of delay. Those cases that have suggested that such a remedy theoretically may be available have done so in the context of habeas petitioners' seeking default judgments against the state or other responding party. See, e.g., Bermudez v. Reid, 733 F.2d 18 (2d Cir.) (reversing the district court's entry of a default judgment in petitioner's habeas case even though the state's repeated disregard of the district court's orders to respond to the petition was "inexcusable"), cert. denied, 469 U.S. 874, 105 S.Ct. 232, 83 L.Ed.2d 161 (1984); Ruiz v. Cady, 660 F.2d 337 (7th Cir.1981); 6 J. Moore, W. Taggart & J. Wicker, Moore's Federal Practice p 55.05 (2d ed. 1988). We therefore separate Hale's claim into a discussion of any delay caused by the District Court and that caused by the state.
5
Hale's contention that delay caused by the District Court entitles him to habeas relief is unpersuasive and unsupported by authority. To hold that undue delay by a federal district court in collaterally reviewing a state conviction renders the state conviction unconstitutional would be illogical and would subvert the purpose of section 2254, which simply provides a federal forum in which state prisoners may contest the constitutionality of their convictions and sentences. Such a holding also would do extreme violence to our federal system. We therefore categorically reject the notion that a state prisoner may become entitled to federal habeas relief merely because a federal district court is slow in adjudicating his collateral attack on his state conviction.
6
In any event, we see no undue delay here caused by the District Court. The court carefully considered each of Hale's claims and at one point remanded the case to the magistrate for additional briefing and findings. This is exactly the kind of careful review that habeas petitions warrant and should not now be complained of in an attempt to persuade this Court to issue the writ.
7
Hale further claims that the seven-month delay attributable to the state's inability to produce the transcript of his guilty plea hearing is a violation of his due process rights by the state and requires the writ to issue. We disagree. Hale cites Fay v. Noia, 372 U.S. 391, 400, 83 S.Ct. 822, 828, 9 L.Ed.2d 837 (1963) (quoting Secretary of State for Home Affairs v. O'Brien, [1923] A.C. 603, 609 (H.L.)), in which the Court states that the writ of habeas corpus must be construed to afford "a swift and imperative remedy in all cases of illegal restraint or confinement." He also relies heavily on this Court's statement in Jones v. Shell, 572 F.2d 1278, 1280 (8th Cir.1978), that the writ "is reduced to a sham if the trial courts do not act within a reasonable time." Hale's reliance on Jones, however, is overstated. In Jones, this Court found a flagrant violation of its mandate when the district court delayed fourteen months in processing a claim after remand with instructions. We found that much of the blame lay with the state, which waited seven months to file a responsive pleading and then asserted the defense of failure to exhaust state remedies. We further found that the delay "denied petitioner constitutional due process," but did not hold that this denial of due process required the writ to issue. Id. Instead, we directed the state to respond to petitioner's allegations and to show cause why the case should not be remanded for an immediate review by the district court.
8
The remedy requested by Hale is extreme. Were we to grant Hale's habeas petition without reaching the merits, it would be "the public at large that would be made to suffer, by bearing either the risk of releasing prisoners that in all likelihood were duly convicted, or the costly process of retrying them." Bermudez, 733 F.2d at 21. We do not need to decide, however, whether particularly egregious conduct by the state could ever merit such a remedy to determine that it is inappropriate in the present case. The Magistrate found, and the District Court agreed, that "the facts of this case do not warrant such a drastic resolution." Magistrate's Proposed Findings and Recommendations at 5. The delay in Hale's case was caused by a recalcitrant court reporter and an overworked assistant attorney general. The record "does not show the kind of conduct by the State that would give rise to a presumption of illegal confinement or a violation of due process." Id. We agree with that assessment and reject Hale's claim that the delay in his case amounts to a due process violation.
9
Hale's argument that we grant his petition for writ of habeas corpus on the basis of a seven-month delay by the state in producing a transcript therefore must fail.
II.
10
Turning to the merits of Hale's petition, Hale challenges his guilty plea on the grounds that his counsel was ineffective because he misadvised Hale regarding his parole eligibility and he failed to (1) move to transfer the proceedings to juvenile court; (2) challenge the legality of Hale's arrest; and (3) move to suppress Hale's confession. To succeed on any one of these claims, Hale must show that his counsel's conduct fell below the standard of "reasonably effective assistance" established in Strickland v. Washington, 466 U.S. 668, 687, 104 S.Ct. 2052, 2064, 80 L.Ed.2d 674 (1984), and that "there is a reasonable probability that, but for counsel's errors, he would not have pleaded guilty and would have insisted on going to trial." Hill v. Lockhart, 474 U.S. 52, 59, 106 S.Ct. 366, 370, 88 L.Ed.2d 203 (1985).
11
Hale contends that his attorney incorrectly advised him that if he pleaded guilty his sentence would be twenty-one years to life and he would be eligible for parole in seven years.3 Both Hale and his mother testified at the evidentiary hearing that they received this misinformation regarding Hale's parole eligibility from Hale's attorney. The attorney testified that he did not give Hale or his mother any information regarding parole eligibility and that he advised Hale to plead guilty so as to avoid the death penalty. Believing, in reliance on Hill v. Lockhart, 731 F.2d 568, 571 (8th Cir.1984)4, that erroneous advice concerning parole eligibility could not rise to the level of constitutionally inadequate legal performance, the Magistrate did not make a factual finding as to whether the alleged misinformation was actually given to Hale by his attorney. The Magistrate went on to find, however, and the District Court agreed, that even if counsel's conduct was deficient, Hale was not prejudiced by the error because it was not a significant factor in his decision to plead. Hale faced the death penalty if he proceeded to trial and the court found "[p]etitioner's testimony that he pleaded primarily because of the parole advice is not credible." Magistrate's Recommended Findings of Fact and Conclusions of Law at 7.
12
This Court recently has held that, in specific instances, erroneous advice concerning parole eligibility may constitute ineffective assistance of counsel. Hill v. Lockhart, 877 F.2d 698 (8th Cir.1989), aff'd on rehearing en banc, 894 F.2d 1009 (1990). The holding in Hill, however, was narrow, and rested primarily on the district court's finding that petitioner pleaded guilty as a direct consequence of his counsel's erroneous advice and that, but for this advice, the outcome of the plea process would have been different. Hill, 894 F.2d at 1010. This clearly is not the situation in the present case. Had Hale insisted on going to trial, he ran the risk of being sentenced to death. His attorney stated this was the principal reason he counseled Hale to plead, and the District Court found it was the primary reason Hale chose to enter a guilty plea. We cannot say that the court's finding in this regard was clearly erroneous. We therefore hold that the alleged misstatements concerning parole made by Hale's attorney, assuming they were in fact made, did not constitute ineffective assistance of counsel as Hale was not prejudiced by his attorney's error.
13
Hale claims that his counsel was ineffective for failing to move to transfer his case to juvenile court. We do not agree. At the time Hale committed the offenses for which he eventually was convicted, he was sixteen years of age, and Ark.Stat.Ann. Sec. 41-617(2) (1977 Repl.) provided, in pertinent part:
14
(2) If a person was fifteen (15), sixteen (16), or seventeen (17) years of age at time of the conduct alleged to constitute an offense, he may be charged either in circuit or municipal court, or in juvenile court. If he is charged in circuit or municipal court, such court may enter an order waiving jurisdiction and transferring the proceedings to juvenile court.
15
The Magistrate found and the District Court agreed that, in view of the serious nature of the offenses charged and the wantonly violent manner in which the crimes were carried out, there was little chance that a motion to transfer to juvenile court would have been successful. We have no reason to doubt that assessment, and we therefore hold that the decision of Hale's counsel not to file a futile motion to transfer was neither deficient performance on his part nor prejudicial to Hale.
16
Hale's final ineffective-assistance argument is that his counsel was ineffective in not challenging the legality of his arrest and subsequent confession to the police.
17
Hale was arrested in a J.C. Penney store when store employees suspected his companion, Mattie Jones, of trying to use a stolen credit card. No additional evidence was presented at the evidentiary hearing to indicate that probable cause existed for Hale's arrest, and the Magistrate found that probable cause for the arrest did not exist. It is well settled that an illegal arrest and detention, without more, does not invalidate a subsequent conviction. United States v. Crews, 445 U.S. 463, 474, 100 S.Ct. 1244, 1251, 63 L.Ed.2d 537 (1980); Gerstein v. Pugh, 420 U.S. 103, 119, 95 S.Ct. 854, 43 L.Ed.2d 54 (1975); United States v. Davis, 785 F.2d 610, 616 (8th Cir.1986). Hale argues, however, that because his detention violated the Fourth Amendment, under the exclusionary rule his confession while in custody was inadmissible as evidence of guilt. See Brown v. Illinois, 422 U.S. 590, 95 S.Ct. 2254, 45 L.Ed.2d 416 (1975); Wong Sun v. United States, 371 U.S. 471, 83 S.Ct. 407, 9 L.Ed.2d 441 (1963). Assuming for the purposes of this discussion that Hale's confession was inadmissible at trial as evidence of Hale's guilt (we expressly decline to decide this issue), our inquiry relative to Hale's ineffective assistance of counsel claim is whether the outcome of the plea negotiations would have been different had Hale's counsel moved to suppress this evidence. We conclude that it would not.
18
There was ample evidence aside from his confession implicating Hale in the crimes charged and justifying Hale's counsel in advising Hale to enter a plea of guilty. Jones, the woman with Hale when he was arrested, gave police a detailed account of Hale's participation in the crimes. Police also had a signed written statement from Danny Williams, a codefendant, confessing to participation in one of the robberies and the murder and implicating Hale. The Magistrate found that, excluding Hale's confession, there was sufficient damning evidence in the prosecutor's file for Hale's counsel to advise Hale to enter a plea of guilty. We are satisfied this finding is not clearly erroneous and therefore hold that Hale was not prejudiced by his counsel's failure to move to suppress Hale's confession.
III.
19
Hale's next claim is that his guilty plea was involuntary and not intelligently made because it was entered to avoid the death penalty. Hale argues it was highly unlikely that the death penalty would have been imposed in his case in view of his youth and the supposed reluctance of Arkansas juries to impose a death sentence. He further argues that because he was not aware of how small the risk of death was, his guilty plea was involuntary and not intelligently made. Even if we accept as true Hale's debatable contention that he bore only a slight risk of receiving a death sentence, this fact does not invalidate his guilty plea.
20
The longstanding test for determining the validity of a guilty plea is "whether the plea represents a voluntary and intelligent choice among the alternative courses of action open to the defendant." North Carolina v. Alford, 400 U.S. 25, 31, 91 S.Ct. 160, 164, 27 L.Ed.2d 162 (1970). "[A] plea of guilty is not invalid merely because entered to avoid the possibility of a death penalty." Brady v. United States, 397 U.S. 742, 755, 90 S.Ct. 1463, 1472, 25 L.Ed.2d 747 (1970). Hale signed a plea agreement in which he stated that he fully understood the nature of the charges against him and the maximum and minimum possible sentences. He pled guilty in open court and thereby ensured he would not receive the death penalty. His present contention that the risk of receiving the death penalty was considerably less than he understood it to be at the time does not serve to invalidate his plea. The threat of the death penalty is a powerful incentive to plead regardless of whether the risk of receiving it is perceived to be great or small. "A defendant is not entitled to withdraw his plea merely because he discovers long after the plea has been accepted that his calculus misapprehended the quality of the State's case or the likely penalties attached to alternative courses of action." Id. at 757, 90 S.Ct. at 1473. We reject Hale's argument that his guilty plea was not voluntarily and intelligently made.
IV.
21
Hale contends that his plea and sentencing hearing are "null and void", Appellant's Brief at 25, because the state trial court did not state on the record that it found Hale guilty, and did not comply with Arkansas Rules of Criminal Procedure 24.4(a), (b), (c) and (e) in taking his guilty plea. He further argues that his sentences are so vague and ambiguous as to constitute a denial of due process. These arguments are without merit.
22
Our review of the guilty plea proceeding convinces us that the necessary procedural requirements were met. The relevant parts of Arkansas Rule of Criminal Procedure 24.4 provide:
23
The court shall not accept a plea of not guilty or nolo contendere from a defendant without first addressing the defendant personally, informing him of and determining that he understands:
24
(a) the nature of the charge;
25
(b) the mandatory minimum sentence, if any, on the charge;
26
(c) the maximum possible sentence on the charge, including that possible from consecutive sentences;
27
* * * * * *
28
(e) that if he pleads guilty or nolo contendere he waives his right to a trial by jury and the right to be confronted with the witnesses against him, except in capital cases where the death penalty is sought.
29
In the present case, instead of stating the available minimum and maximum sentences, the state trial court informed Hale at the outset of the hearing of the actual sentence he would receive if he pleaded guilty. The court asked:
30
Do you understand that on a plea of guilty that you are to receive on aggravated robbery one, two, three, four concurrent life sentences; and in battery in the first degree a sentence of 20 years concurrent and on murder in the first degree reduced from capital felony murder a life sentence concurrent?
31
Defendant Hale: Yes.
32
Transcript of Guilty Plea Hearing at 3-4. The state trial court then asked Hale to describe the facts surrounding each count charged, which Hale did. After hearing Hale's factual account of the crimes committed, the court informed Hale that he was entitled to a trial in which a jury would determine his guilt or innocence and his punishment, that at trial he would be entitled to testify on his own behalf, and that if he chose not to testify, the jury would be instructed not to consider this in determining his guilt. Hale indicated that he understood each of these rights and did not have any questions. The court then accepted Hale's guilty pleas and imposed sentence.
33
First, the fact that the court did not state for the record that it found Hale guilty is immaterial. The state trial court ascertained the facts of the charges against Hale and accepted Hale's plea of guilty; this is functionally equivalent to finding Hale guilty on all counts charged. Second, our review of the guilty plea proceeding convinces us that Rule 24.4 was substantially complied with and Hale's guilty plea was procedurally valid. See Clark v. State, 271 Ark. 866, 611 S.W.2d 502 (Ark.1981).
34
Hale's final argument, that his sentences are so vague and ambiguous as to constitute a denial of due process, is equally without merit. Prior to accepting Hale's guilty plea, the court clearly informed Hale that he would serve four concurrent life sentences and a concurrent twenty-year sentence. The sentence the court imposed from the bench after accepting Hale's plea is consistent with its earlier statement except that the court did not specifically state that the sentences would run concurrently. No mention of parole was made at the plea hearing. In the commitment orders, the trial court did state incorrectly that Hale would be required to serve one-third of his sentence before becoming eligible for parole. Hale cannot claim to have been confused by language written after the plea hearing, however, when he was clearly and unambiguously told what his sentence would be before entering his plea. Cf. Corcoran v. Wyrick, 757 F.2d 207 (8th Cir.) (an erroneous statement regarding parole made by the sentencing judge at the sentencing hearing will not afford habeas relief when appellant is aware of the sentences he received), cert. denied, 474 U.S. 923, 106 S.Ct. 256, 88 L.Ed.2d 263 (1985). Hale received the identical sentence he was told he would receive by the court; any confusion created by the commitment orders is settled by section 16-93-601(b) of the Arkansas Code Annotated, which excludes an individual serving a life sentence from parole eligibility. His sentence is neither vague nor ambiguous, and this claim offers him no basis for relief.
V.
35
None of Hale's claims has merit and we therefore affirm the District Court's denial of his petition for a writ of habeas corpus.
*
The HONORABLE ELMO B. HUNTER, Senior United States District Judge for the Western District of Missouri, sitting by designation
1
The Honorable Elsijane T. Roy, Senior United States District Judge for the Eastern District of Arkansas
2
Hale originally filed his petition pro se; counsel was appointed on July 11, 1986. After a search through county court files uncovered the court reporter's record of Hale's guilty plea hearing, the state moved for a court order to have the record transcribed. This order was entered July 30, 1986. Due to a number of circumstances, including difficulty locating the court reporter and illness in the reporter's family, the record of the hearing was not delivered to the reporter until sometime in December 1986 and she did not complete the transcription until February 12, 1987
New counsel was appointed for Hale on December 17, 1986. On January 20, 1987, counsel filed a motion for peremptory issuance of the writ because of the delay in filing the transcript. The Magistrate held a hearing on this motion on February 17, 1987, at which he heard testimony from the attorney general's office regarding the delay in producing the transcript. The Magistrate recommended that Hale's motion for peremptory issuance of the writ be denied and the District Court entered an order adopting the Magistrate's findings and denying the motion on April 30, 1987. On October 5, 1987, the Magistrate held a hearing on the merits of Hale's habeas petition. The Magistrate entered a recommendation on March 1, 1988, that relief be denied and, on August 9, 1988, the District Court ordered that the requested relief be denied. In its order, the District Court directed that one issue not specifically addressed by the Magistrate be briefed by both sides. On November 1, 1988, the Magistrate recommended that relief be denied as to this final issue and, on November 22, 1988, the District Court entered its order denying relief.
3
Under Arkansas law, an individual sentenced to life imprisonment after February 12, 1969, and before April 1, 1977, is not eligible for parole unless the sentence is commuted to a term of years. Ark.Code Ann. Sec. 16-93-601(b) (1987)
4
This decision was affirmed by the Supreme Court on the ground that Hill failed to allege that his attorney's erroneous advice regarding parole eligibility prejudiced Hill in his decision to plead guilty. Hill v. Lockhart, 474 U.S. 52, 60, 106 S.Ct. 366, 371, 88 L.Ed.2d 203 (1985)
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197 So.2d 30 (1967)
SOUTHERN REALTY AND UTILITIES CORP., a Delaware Corporation Authorized to Do Business in Florida, Appellant,
v.
Charles GETTLEMAN, Appellee.
No. 66-505.
District Court of Appeal of Florida. Third District.
March 21, 1967.
Rehearing Denied April 10, 1967.
*31 Fuller & Feingold, Miami Beach, for appellant.
Silverstein & Silverstein, Miami Beach, for appellee.
Before CARROLL, BARKDULL and SWANN, JJ.
BARKDULL, Judge.
This is an appeal by the defendant in the trial court from an adverse final judgment following a jury verdict. The record reveals that the appellee purchased three parcels of land from the appellant. Included in the deed from the grantor was the following provision:
* * * * * *
"The property hereby conveyed is subject to an existing first mortgage * * *. It is hereby expressly understood and agreed that it is the obligation of the grantor, SOUTHERN REALTY AND UTILITIES CORP. to keep the said mortgage in good standing and to make the payments thereon."
* * * * * *
Subsequent to the appellee taking possession, the grantor defaulted in the payments on the note secured by the underlying mortgage, and a foreclosure decree was entered on June 4, 1964 divesting the appellee of any further interest in the land. The instant action was commenced to recover damages sustained by the appellee due to the breach of the obligation on the part of the grantor to keep the note and mortgage in good standing. A summary judgment as to liability was granted for the appellee, and the issue was submitted to the jury in the form of a special verdict to determine the market value of the property on the date of the foreclosure. The jury returned a verdict within the range of the evidence presented by the experts as to the value of the property. A final judgment was rendered in accordance therewith upon stipulation of the parties, deducting from the amount awarded by the jury the amount due from the appellee to the appellant on a purchase money mortgage. On this appeal, the appellant urges the trial court committed error in the giving of a jury instruction as to the legal definition of "market value"; failure to permit the tax assessor's testimony as to the assessed value; submitting the cause to the jury upon the proposition that the true measure of damages was the "loss of the bargain" to the grantee, rather than a return to him of his "out of pocket loss".
We find no error in any of the contentions made by the appellant, and affirm. The charge on market value was as follows:
* * * * * *
"You have heard this term `fair market value' discussed, and I charge you, gentlemen, that fair market value is the amount of money which a purchaser willing, but not obligated to buy the property, would pay to an owner willing, but not obliged to sell it, taking into consideration all the uses to which the property is adapted and might in reason be applied."
* * * * * *
*32 This charge adequately states the applicable law in this State. See: Casey v. Florida Power Corporation, Fla.App. 1963, 157 So.2d 168; Staninger v. Jacksonville Expressway Authority, Fla.App. 1966, 182 So.2d 483.
As a general proposition, tax assessors are not permitted to testify to the assessed value of property. See: Bankers Trust Co. v. International Trust Co., 108 Colo. 15, 113 P.2d 656; Scott v. O'Neil's Adm'r., 23 Ky. 331, 62 S.W. 1042; 18 Am.Jur., Eminent Domain, § 350; 20 Am.Jur., Evidence, § 385; 39 A.L.R.2d 214, and cases cited therein. Although Florida has not specifically ruled on this question, it is obvious that such testimony would have been erroneous prior to McNayr v. State, Fla. 1964, 166 So.2d 142. At this time, we are not prepared to hold that assessments on real estate in this State should be accepted as evidence of market value or that just value, as contained in Section 1, Article IX, Florida Constitution, F.S.A., is synonymous with market value. There was no objection to the submission of the special verdict and, therefore, the appellant is not in a position to urge this point. See: Loving County v. Higginbotham, Ct.Civ.App., Tex. 1938, 115 S.W.2d 1110; Johnson v. Sipe, 263 Wis. 191, 56 N.W.2d 852; Briggs Transfer Co. v. Farmers Mut. Auto. Ins. Co., 265 Wis. 369, 61 N.W.2d 305; Szymon v. Johnson, 269 Wis. 153, 69 N.W.2d 232, 70 N.W.2d 5; 2 Fla.Jur., Appeals, § 66.
The breach by the grantor in the instant case was not one that went to seisin, title, quiet enjoyment, right to convey, and warranty, which are the normal covenants of title. The law cited by the appellant appears to be correct, that upon the breach of one of these covenants without a showing of fraud the grantee would only be entitled to his out of pocket loss. See: Key v. Alexander, 91 Fla. 975, 108 So. 883; Liberis v. Carmeris, 107 Fla. 352, 146 So. 220; Gassner v. Lockett, Fla. 1958, 101 So.2d 33; Resnick v. Goldman, Fla.App. 1961, 133 So.2d 770; 33 Fla.Jur., Vendor and Purchaser, § 173. However, the breach in the instant case was a breach of a continuing obligation. The grantor induced the grantee to enter into the transaction upon the express promise that he would maintain the payments on the note secured by the underlying mortgage as a part of the original consideration. Admittedly, it breached this agreement which was essential to the entire transaction, and it appears that the trial judge was eminently correct in holding the defaulting grantor for the "loss of the bargain" as the measure of damages sustained by the innocent grantee.
Therefore, for the reasons above stated, the final judgment here under review is hereby affirmed.
Affirmed.
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[Cite as Toros v. Cuyahoga Cty. Bd. of Dev. Disabilities, 2013-Ohio-4601.]
Court of Appeals of Ohio
EIGHTH APPELLATE DISTRICT
COUNTY OF CUYAHOGA
JOURNAL ENTRY AND OPINION
No. 99637
NICHOLAS TOROS, ADMINISTRATOR
PLAINTIFF-APPELLANT
vs.
CUYAHOGA CTY. BD. OF DEV.
DISABILITIES, ET AL.
DEFENDANTS-APPELLEES
JUDGMENT:
AFFIRMED
Civil Appeal from the
Cuyahoga County Court of Common Pleas
Case No. CV-763903
BEFORE: Blackmon, J., Celebrezze, P.J., and E.A. Gallagher, J.
RELEASED AND JOURNALIZED: October 17, 2013
ATTORNEYS FOR APPELLANT
Paul W. Flowers
Paul W. Flowers Co., L.P.A.
Terminal Tower, 35th Floor
50 Public Square
Cleveland, Ohio 44113
David R. Grant
Plevin & Gallucci Co., L.P.A.
55 Public Square
Suite 2222
Cleveland, Ohio 44113
ATTORNEYS FOR APPELLEES
Kenneth A. Calderone
Michael Ockerman
Hanna, Campbell & Powell, L.L.P.
3737 Embassy Parkway
Suite 100
Akron, Ohio 44333
PATRICIA ANN BLACKMON, J.:
{¶1} Appellant Nicholas Toros, Administrator of the Estate of Florence Toros
(“the estate”), appeals the trial court’s granting of summary judgment in favor of the
Cuyahoga County Board of Developmental Disabilities (“CBDD”) and its employees
Dorothy Hamlett, R.N., Laura Kubulins, Ron Duke, Bryan O’Connor, and Lashanda
Bryant (n.k.a. Lashanda Scales) (“employees”) and assigns the following three errors for
our review:
I. The trial judge abused his discretion, to plaintiff-appellant’s
considerable detriment, by allowing defendants-appellees to expand the
scope of the motion for summary judgment to include the individual
defendants only after the memorandum in opposition had been submitted.
II. The trial judge erred, as a matter of law, by granting summary judgment
on the basis of new arguments that were raised only after
plaintiff-appellant’s memorandum were raised only after
plaintiff-appellant’s memorandum in opposition was filed.
III. The trial judge erred, as a matter of law, by granting summary
judgment despite the disputed issues of fact in the record.
{¶2} Having reviewed the record and pertinent law, we affirm the trial court’s
decision. The apposite facts follow.
Facts
{¶3} In November 2009, Florence Toros (“Toros”), a mentally challenged adult,
was diagnosed with tongue cancer. She underwent surgery in December 2009 to remove
the tumor and to reconstruct her tongue. She spent 11 days in the hospital where she was
fed via feeding tubes. She was transferred to a nursing facility for further rehabilitation.
During this time, she was fed with a feeding tube that led directly to her stomach. Once
the feeding tube was removed, a barium swallow test was performed at the Cleveland
Clinic that indicated that Toros could start eating regular food.
{¶4} Toros attended Maple Heights Adult Activity Center (“the Center”) where
she helped assemble products for various companies. She had been attending the facility
since the early 1980s. The Center is operated under the auspices of the CBDD. The
summer prior to Toros’s return to the Center, Toros’s mother met with the staff to discuss
Toros’s care, in light of her surgery. At the time of the meeting, the mother was still
pureeing Toros’s food, but told the staff that Toros was scheduled to take a barium
swallow test to determine if she was ready for solid food. The mother said she would
update the staff regarding the results. However, as a result of this meeting, Toros’s
Individual Service Plan (“ISP”) stated that her food had to be pureed.
{¶5} By the time Toros returned to the Center in October 2010, she was cleared
to eat solid food because she had passed the barium swallow test. According to Toros’s
mother, Toros had been eating such things as hamburgers and pretzels at home with no
problem. Nurse Dorothy Hamlett, who was assigned to Toros’s ISP team, confirmed
with Toros’s doctor that she had no dietary restrictions.
{¶6} Toros’s mother was in charge of preparing a lunch for Toros to take with
her to the Center. This would typically include a sandwich that would be cut into four
squares, fruit, and small cookies. Toros would bring the lunch in her purse. Her mother
also provided her with money to purchase additional food from the vending machines at
snack time. Because Toros had a history of sneaking food, the staff would make sure she
put her lunch away, and they would keep her snack money until she needed it at break
time.
{¶7} Lashaunda Scales, an Adult Program Specialist, was in charge of Toros’s
group on November 22, 2010. Toros had been back at the Center since October 4, 2010.
Scales stated in her deposition that Toros arrived at the Center at 7:30 a.m. Like usual,
Scales instructed Toros to put her coat and her packed lunch in the work area locker.
That day, her lunch consisted of a salami sandwich, two bananas, and a bag of little
cookies. Toros gave Scales her snack money to be used at the vending machines at
break time.
{¶8} Between 8:15 a.m. and 8:30 a.m., Toros asked to use the restroom. She
had her coat and purse with her. Scales told Toros to leave her things in the work area.
In response, Toros removed her coat, but kept her purse. Scales instructed Toros to put
the purse away. Toros then attempted to use the restroom furthest away from the work
area. However, Scales redirected her to a closer bathroom and watched to see that Toros
actually went to the area of the bathroom. She then watched until Toros left the
bathroom. Toros smiled at her as she walked past. Scales then left the area to make
copies while Toros proceeded to the drinking fountain.
{¶9} Bryan O’Connor, an Adult Program Specialist at the Center, noticed Toros
proceed to the water fountain. As she bent over to drink, he observed her having what
appeared to be a seizure. She fell on her back and began jerking. O’Connor and
Dorothy Hamlett, a staff nurse, provided CPR and called 911. EMS arrived and took
over CPR while transporting Toros to the hospital. At the hospital, food, which appeared
to be peanut butter was discovered in Toros’s airway. She died at the hospital two days
later. Although Toros’s sandwich and banana were found in her purse, the bag of little
cookies was never found.
{¶10} On her behalf, Toros’s estate filed a wrongful death action against the
CBDD and its employees. The CBDD and its employees filed a motion for summary
judgment arguing sovereign immunity protected them from liability. The trial court
granted the motion for summary judgment in a four-page opinion.
Amendment of Motion for Summary Judgment
{¶11} We will address the first and second assigned errors together because they
both concern the estate’s contention that the trial court erred in ruling on procedural
matters. The estate argues that the trial court erred by allowing the CBDD and its
employees to file an amended motion for summary judgment after the estate had already
responded to the original motion for summary judgment.1 The estate also argues the trial
court erred by not striking the CBDD’s reply brief because it set forth a new argument not
presented in the CBDD’s original or amended motions for summary judgment.
1
At oral argument there appeared to be confusion whether the original
motion that the estate responded to was struck for being filed out of rule. There
was actually another motion for summary judgment filed prior to this summary
judgment, which was struck by the court for being filed out of rule. However, it
was subsequently refiled with leave of court.
{¶12} The trial court did not err by allowing the motion for summary judgment to
be amended. Our review of both the original and amended motions show minor changes.
The only difference between the two is that the employees’ names are included in the
caption of the amended motion and on page 19 of the amended brief, the phrase “or its
employees” was added twice so that the pertinent sentences read: “There is absolutely no
evidence that Cuyahoga County Board of Developmental Disabilities or its employees
consciously disregarded Ms. Toros’s eating behavior.” (Emphasis added.) And, “There
is not evidence that the Cuyahoga County Board of Developmental Disabilities or its
employees failed to exercise any care in supervising Ms. Toros and responding to her in
her hour of need.” (Emphasis added.) No other additional changes were made, nor was
further analysis of the employees’ liability added.
{¶13} These changes did not prejudice the estate because they did not create new
arguments. Both the CBDD in its original motion for summary judgment and the estate
in its response motion discussed the employees’ conduct in resolving the immunity issue.
Additionally, in the original motion for summary judgment, the CBDD argued on page 14
that “Without a doubt, each of these alleged ‘failures’ was within the discretion of
defendant Cuyahoga County Board of Developmental Disabilities and its employees.”
(Emphasis added.) On page 15 of the original motion, the CBDD argued, “In addition,
the employees themselves made discretionary decisions in creating Ms. Toros’s ISP and
AASP, whether to supervise Ms. Toros in the bathroom, and how to respond to Ms. Toros
when she suffered from an apparent seizure.” (Emphasis added.) Thus, it is not as if the
original motion completely ignored the employees’ potential liability.
{¶14} Further, the estate attached to its brief in opposition a detailed affidavit by
an expert along with an extensive expert report that addressed each of the employees’
conduct and why the employees were not immune. Therefore, the estate addressed the
immunity of the employees and was not prejudiced by the court’s permitting the CBDD
and its employees to file an amended motion for summary judgment.
{¶15} The estate also argues that by ruling on the amended motion for summary
judgment 20 days after it was filed, the trial court deprived it of the ability to respond to
the amended motion. The estate cites to Loc.R. 11(I), which provides that “Unless
otherwise ordered by the Court, * * * a party opposing a motion for summary judgment
made pursuant to civil rule 56 may file a brief in opposition with accompanying
evidentiary materials (as permitted by civil rule 56 (c)) within thirty (30) days of service
of the motion.” Under the circumstances of this case, where the amended motion for
summary judgment did not change the arguments contained within the original motion
and where the estate provided abundant evidence regarding the employees’ acts and
addressed their liability in its original motion in opposition, we conclude the estate was
not prejudiced by not having the opportunity to respond prior to the court’s ruling.
{¶16} Also, the amended motion did not constitute a new motion that restarted the
response time pursuant to Loc.R. 11(I). This court in Cook v. Wal-Mart, Inc., 8th Dist.
Cuyahoga No. 79451, 2002-Ohio-973, held that a court did not err by granting summary
judgment less than 30 days after the movant filed a supplemental motion to its motion for
summary judgment because it did not constitute a “new motion starting a new time period
for response.” Id. at ¶ 7.
{¶17} The estate also contends that the trial court erred by not granting its motion
to strike the CBDD’s reply brief. The determination of a motion to strike is vested
within the broad discretion of the trial court. State ex rel. Morgan v. New Lexington, 112
Ohio St.3d 33, 2006-Ohio-6365, 857 N.E.2d 1208, ¶ 26. The estate contends the reply
brief should have been struck because it raised an argument not raised in the amended
motion for summary judgment. In its reply brief, the CBDD contended that the “Bill of
Rights for Persons with Mental Retardation or Developmental Disability” contained in
R.C. 5123.62 to 5123.64 did not expressly impose liability on it or its employees.
Although this argument was not presented in the motion for summary judgment, the estate
had raised this issue in its motion in opposition to the CBDD’s motion for summary
judgment. Thus, it was not a new argument to the estate. The estate could have asked
for leave to file a surreply brief if it felt a response was necessary. By choosing instead
to file a motion to strike the amended motion for summary judgment, the estate
demonstrated that it had no new arguments to present. Accordingly, the estate’s first and
second assigned errors are overruled.
Sovereign Immunity
{¶18} In the third assigned error, the estate contends the trial court erred by
granting summary judgment in favor of the CBDD and its employees.
{¶19} We review an appeal from summary judgment under a de novo standard of
review. Baiko v. Mays, 140 Ohio App.3d 1, 746 N.E.2d 618 (8th Dist.2000), citing
Smiddy v. The Wedding Party, Inc., 30 Ohio St.3d 35, 506 N.E.2d 212 (1987); N.E. Ohio
Apt. Assn. v. Cuyahoga Cty. Bd. of Commrs., 121 Ohio App.3d 188, 699 N.E.2d 534 (8th
Dist.1997). Accordingly, we afford no deference to the trial court’s decision and
independently review the record to determine whether summary judgment is appropriate.
{¶20} Under Civ.R. 56, summary judgment is appropriate when: (1) no genuine
issue as to any material fact exists, (2) the party moving for summary judgment is entitled
to judgment as a matter of law, and (3) viewing the evidence most strongly in favor of the
nonmoving party, reasonable minds can reach only one conclusion that is adverse to the
nonmoving party.
{¶21} Determining whether a political subdivision is immune from tort liability
pursuant to R.C. Chapter 2744 involves a three-tiered analysis. Greene Cty. Agricultural
Soc. v. Liming, 89 Ohio St.3d 551, 556-557, 2000-Ohio-486, 733 N.E.2d 1141. The first
tier is the general rule that a political subdivision is immune from liability incurred in
performing either a governmental function or proprietary function. Id. at 556-557; R.C.
2744.02(A)(1). However, that immunity is not absolute. R.C. 2744.02(B); Cater v.
Cleveland, 83 Ohio St.3d 24, 28, 1998-Ohio-421, 697 N.E.2d 610.
{¶22} “The second tier of the analysis requires a court to determine whether any of
the five exceptions to immunity listed in R.C. 2744.02(B) apply to expose the political
subdivision to liability.” Id. at 28. If any of the exceptions to immunity apply and no
defense in that section protects the political subdivision from liability, then the third tier
of the analysis requires a court to determine whether any of the defenses set forth in R.C.
2744.03 apply, thereby providing the political subdivision a defense against liability.
Colbert v. Cleveland, 99 Ohio St.3d 215, 2003-Ohio-3319, 790 N.E.2d 781, ¶ 9.
{¶23} The estate does not dispute that the CBDD qualifies as a “political
subdivision” under R.C. 2744.01(F) and that the operation of facilities for the
developmentally disabled is a “government function” pursuant to R.C. 2744.01(C)(2)(o).
The estate, however, claims that the CBDD and its employees are not immune from
liability because the exception to immunity as outlined in R.C. 2744.02(B)(5) applies.
{¶24} R.C. 2744.02(B)(5) provides that “a political subdivision is liable for injury,
death, or loss to person or property when civil liability is expressly imposed upon the
political subdivision by a section of the Revised Code.” (Emphasis added.) The estate
contends that R.C. 5123.62, which contains the “Bill of Rights for Persons with Mental
Retardation or Developmental Disability,” creates an exception to immunity because the
General Assembly expressly imposed civil liability in R.C. 5123.64(B)(3) that a person
with a developmental disability may take “appropriate action to ensure compliance with
sections 5123.61 to 5123.64 of the Revised Code, including the filing of a legal action to
enforce rights or to recover damages for violation of rights.” The estate argues that by
not providing Toros with a safe environment at the Center, the CBDD and its employees
violated Toros’s rights outlined in R.C. 5123.62 to 5123.64.
{¶25} We conclude that the statute does not specifically impose liability on the
political subdivision but contains a general imposition of liability. The Ohio Supreme
Court has held that the term “expressly” as used under R.C. 2744.02(B)(5) means “in
direct or unmistakable terms: in an express manner: explicitly, definitely, directly.”
Butler v. Jordan, 92 Ohio St.3d 354, 357, 750 N.E.2d 554 (2001). A general imposition
of liability is not sufficient. See Moore v. Lorain Metro. Hous. Auth., 121 Ohio St.3d
455, 2009-Ohio-1250, 905 N.E.2d 606 (Landlord Tenant Act expressly imposes liability
on landlords in general, but did not expressly impose it on the political subdivision of the
LMHA). Similarly, in the instant case, R.C. 5123.64 creates a right to pursue civil
liability, but does not specifically identify a political subdivision.
{¶26} The estate contends that in spite of the Supreme Court’s opinion in Moore,
in an earlier decision, Campbell v. Burton, 92 Ohio St.3d 336, 2001-Ohio-206, 750
N.E.2d 539, the Supreme Court had held that the imposition of general liability was
sufficient. We disagree. In Campbell, the statute at issue was R.C. 2151.421, which
imposes on certain persons a duty to report child abuse and neglect. The court held that
because the violation of R.C. 2151.421 resulted in criminal liability, that liability was
expressly imposed on employees of political subdivisions who had a mandatory duty to
report the abuse. When Campbell was decided, however, R.C. 2744.05(B)(5) did not
require that the statute impose “civil liability” as it does now. In 2003, two years after
Campbell was decided, R.C. 2744.05(B)(5) was amended to abrogate Campbell. The
amended statute clarified that exceptions pursuant to R.C. 2744.02(B)(5) must expressly
impose “civil liability,” not criminal liability. The amended statute also clarified that,
contrary to what was stated in Campbell, liability is not construed to exist merely because
another statute imposes a “mandatory duty” on the political subdivision.
{¶27} The Ohio Supreme Court has since held in Estate of Ridley v. Hamilton Cty.
Bd. of Mental Retardation & Dev. Disabilities., 102 Ohio St.3d 230, 2004-Ohio-2629,
809 N.E.2d 2, that the “Bill of Rights for Persons with Mental Retardation or
Developmental Disability” does not expressly impose liability on a subdivision. The
estate contends we should not rely on Ridley, arguing that the plaintiff in that case
conceded that liability was not expressly imposed, therefore, the Supreme Court did not
consider the issue. However, merely because a party concedes an issue does not mean
that courts must accept a clearly wrong concession. Therefore, by not correcting the
plaintiff’s concession to the fact that there was no express liability, the Supreme Court
obviously agreed. The court, thus, went on to consider whether liability existed pursuant
to the Enforcement Clause of the Fourteenth Amendment and held that it did not, stating
as follows:
Although the Enforcement Clause of the Fourteenth Amendment
gives Congress the “power to enforce, by appropriate legislation, the
provisions of this article,” an act of Congress is not “a section of the
Revised Code” pursuant to R.C. 2744.02(B)(5). Furthermore, even if we
treated it as such, the estate has not pointed to any legislative action taken
by the United States Congress pursuant to the Enforcement Clause that
would abrogate tort immunity or expressly impose a penalty for violations
of the above statutes or the rights contained therein. Accordingly, none of
these code sections — R.C. 5123.62, 5126.05, 5126.41, and 5126.431—
through the Enforcement Clause of the Fourteenth Amendment expressly
imposes liability within the meaning of former R.C. 2744.02(B)(5).
Id. at ¶ 26. Thus, the trial court in the instant case did not err by relying upon Ridley to
support its determination that the “Bill of Rights for Persons with Mental Retardation or
Developmental Disability” does not expressly impose liability on a political subdivision.
{¶28} In fact, other districts in Ohio have also concluded that the R.C. 5123.62
Bill of Rights fails to expressly impose liability on political subdivisions. In Havely v.
Franklin Cty., 10th Dist. Franklin No. 07AP-1077, 2008-Ohio-4889, the Tenth District
held that R.C. 5123.62 did not expressly impose liability on the political subdivision. In
reaching this conclusion, the court relied upon the Supreme Court’s decision in Cramer v.
Auglaize Acres, 113 Ohio St.3d 266, 2007-Ohio-1946, 865 N.E.2d 9. In Cramer, the
Supreme Court held that R.C. 2744.05(B)(5) created an exception to immunity because
the Ohio Nursing Home Patients’ Bill of Rights at issue in that case, expressly imposed
liability. The Nursing Home statute explicitly authorizes a civil action against “any
person or home.” While the Cramer court admitted that the word “person” was too
general, “home” was defined in the statute as including homes run by the county. Thus,
the Supreme Court held that an exception to immunity applied. In comparing the two
terms, the Court stated:
With respect to nurses Warder and Green, the court of appeals
determined that the use of the term “person” in R.C. 3721.17(I)(1) was too
general to expressly impose liability on an employee of a political
subdivision. Unlike the term “home,” the term “person” is not defined in
the Patients’ Bill of Rights. Under R.C. 3721.13, certain patients’ rights —
such as the right to adequate and appropriate medical treatment and nursing
care and the right to communicate with the home’s physician and employees
in planning treatment or care — involve the conduct of nursing home
employees, but there is no express statement that the employees of a county
nursing home will be liable individually for violations of the Patients’ Bill
of Rights. We therefore hold that R.C. 3721.17(I)(1) does not expressly
impose liability on the employees of the county nursing home within the
meaning of R.C. 2744.03(A)(6)(a).
{¶29} In Havely, the court applying the analysis set forth in Cramer, concluded
that the “Bill of Rights for Persons with Mental Retardation or Developmental Disability”
did not explicitly define a political subdivision, and, therefore, no exception to immunity
existed. In Lawson v. Mahoning Cty. Mental Health Bd., 7th Dist. Mahoning No. 10
MA 23, 2010-Ohio-6389, the Seventh District agreed with the analysis in Havely, and
found no express liability in the “Bill of Rights for Persons with Mental Retardation or
Developmental Disability.” We also agree with the analysis in these cases and conclude
the Bill of Rights did not create an exception to immunity regarding the CBDD or its
employees.
{¶30} Even if the R.C. 5123.62 Bill of Rights expressly imposed liability, under
the third tier of a sovereign immunity analysis, the court must determine whether any of
the defenses outlined in R.C. 2744.03 apply, thereby providing the political subdivision
with a defense against liability. Colbert v. Cleveland, 99 Ohio St.3d 215,
2003-Ohio-3319, 790 N.E.2d 781, ¶ 9. Here, the CBDD and its employees exercised a
high level of discretion in determining Toros’s care; therefore, the defenses set forth in
R.C. 2744.03(A)(3) and (5) apply.
{¶31} R.C. 2744.03(A)(3) and (A)(5) state:
(3) The political subdivision is immune from liability if the action or failure
to act by the employee involved that gave rise to the claim of liability was
within the discretion of the employee with respect to policy-making,
planning, or enforcement powers by virtue of the duties and responsibilities
of the office or position of the employee.
(5) The political subdivision is immune from liability if the injury, death,
or loss to person or property resulted from the exercise of judgment or
discretion in determining whether to acquire, or how to use, equipment,
supplies, materials, personnel, facilities, and other resources unless the
judgment or discretion was exercised with malicious purpose, in bad faith,
or in a wanton or reckless manner.
{¶32} The Ohio Supreme Court in Elston v. Howland Local School, 113 Ohio
St.3d 314, 2007-Ohio-2070, 865 N.E.2d 84, compared R.C. 2744.03(A)(3) and (A)(5) and
noted:
Although both R.C. 2744.03(A)(5) and 2744.03(A)(3) concern an
employee’s discretionary acts, the focus of subsection (A)(3) is that the
employee be engaged in policy-making, planning, or enforcement. Also
unlike R.C. 2744.03(A)(5), R.C. 2744.03(A)(3) does not have language
limiting its grant of immunity. In other words, a political subdivision may
assert the immunity defense when an employee who has the duty and
responsibility for policy-making, planning, or enforcement by virtue of
office or position actually exercises discretion with respect to that power.
This immunity exists even if the discretionary actions were done recklessly
or with bad faith or malice.
Id. at ¶ 27.
{¶33} A discretionary act under R.C. 2744.03 involves a heightened amount of
official judgment or discretion. Inland Prods., Inc. v. Columbus, 193 Ohio App.3d 740,
2011-Ohio-2046, 954 N.E.2d 141, ¶ 62 (10th Dist.). Routine decisions that require
little judgment or discretion and that, instead, portray inadvertence, inattention, or
unobservance do not create a defense to liability. Frenz v. Springvale Golf Course &
Ballroom, 8th Dist. Cuyahoga No. 97593, 2012-Ohio-3568. In the instant case, the
evidence indicated that the CBDD and the employees exercised a high level of judgment
and discretion in determining the requirements for Toros’s care.
{¶34} The Revised Code requires county boards of disabilities to “plan and set
priorities” for the “provision of * * * programs and other services to meet the needs of
county residents who are individuals with mental retardation and other developmental
disabilities.” R.C. 5126.04(A). The CBDD then must provide eligible individuals with
“habilitations or services plans.” An ISP is tailored to the specific needs of each
individual and requires an analysis of the individual’s needs and how to best provide
those needs. To perform this service, trained, certified employees conduct formal and
informal evaluations of the individual and then using the knowledge gained, plan and
enforce services for the individual. Ohio Adm. Code 5123:2-12-03. These services are
more than routine and require a great deal of judgment.
{¶35} It is undisputed that the CBDD assembled an ISP team comprised of
certified employees and Toros’s parents created an ISP that was tailored to Toros’s needs
and enforced the plans. These services rendered by the employees and the CBDD in
devising the ISP and determining the level of care Toros required was a highly
discretionary function.
{¶36} In fact, the evidence showed that the CBDD and its employees did not
ignore the fact that Toros’s needs may have changed since her surgery. Before her return
to the Center, the ISP team discussed the fact that Toros had been on a pureed diet while
at home. At that time, Toros’s mother advised the team that her daughter would be
undergoing swallow tests, and she would provide more current information prior to
Toros’s return to the center. Because the swallow test had not been done at the time of
the initial meeting, the ISP team noted “pureed diet” on Toros’s ISP. Her daily activities
sheet was changed in November 2010 to delete the pureed diet requirement.2
{¶37} Prior to Toros’s return to the Center, but after the ISP had been drafted,
Toros passed a swallow test and her doctor cleared her to return to the Center without any
2
The ISP was not immediately amended to delete the pureed food
specification because the ISP plans are usually updated annually.
dietary restrictions. Toros’s mother advised the ISP team of this fact, and Nurse Hamlett
also confirmed there were not dietary restrictions with the doctor’s office. Upon Toros’s
return, her mother packed her solid foods in her lunch. All of these actions indicate that
the team utilized discretion and judgment in determining Toros’s needs and made sure she
was able to eat solid foods prior to being placed under their care.
{¶38} Nor do we find the employees acted in a wanton or reckless manner. The
Ohio Supreme Court in Anderson v. Massillon, 134 Ohio St.3d 380, 2012-Ohio-5711, 983
N.E.2d 266, has defined “wanton” and “reckless” as follows:
3. Wanton misconduct is the failure to exercise any care toward those to
whom a duty of care is owed in circumstances in which there is great
probability that harm will result. (Hawkins v. Ivy, 50 Ohio St.2d 114, 363
N.E.2d 367 (1977), approved and followed).
4. Reckless conduct is characterized by the conscious disregard of or
indifference to a known or obvious risk of harm to another that is
unreasonable under the circumstances and is substantially greater than
negligent conduct. (2 Restatement of the Law 2d, Torts, Section 500 (1965),
adopted).
Id. at paragraphs three and four of the syllabus.
{¶39} There was no indication the staff failed to exercise a duty of care towards
Toros based on the information they were provided regarding Toros’s condition.
Although the staff knew that Toros had a habit of sneaking food, she had never choked.
She was successfully eating foods, such as hamburgers and pretzels, prior to returning to
the Center, and the staff was told by both Toros’s mother and doctor that there were no
dietary restrictions imposed on Toros. Moreover, the choking incident did not occur on
Toros’s first day back to the Center. The choking incident happened more than a month
after she returned; thus, she had successfully eaten solid foods packed for lunch by her
mother and from the vending machines numerous times after her return.
{¶40} Toros was also carefully supervised on the date of the incident. Toros
attempted to take her coat and purse to the bathroom, but was instructed to leave them
behind. She attempted to go to a distant bathroom instead of a closer one, and was
directed to go to the closer one. The supervisor, Lashanda Scales, watched Toros enter
the bathroom. Once she saw Toros come out of the bathroom, Scales went to make
copies. Scales testified that Toros seemed fine upon exiting the bathroom and that Toros
“smiled at her.” Given there was no way for Toros to have lunch on her person, and
because there was no indication that Toros would choke even if she had stolen food, and
because Toros was not in distress after leaving the bathroom, we cannot say this decision
to make copies was wanton or reckless behavior.
{¶41} Once Toros left the bathroom, she walked to the water fountain and began
convulsing. Several employees immediately responded to her aid, including Nurse
Hamlett. Toros’s mouth was checked for visible obstructions, but none were found.
CPR was administered. Given that the employees had no reason to know that Toros
would choke, even if she indeed stole food, we cannot say this behavior by the employees
was wanton or reckless.
{¶42} Although the estate argues, citing to Burlinghame v. Estate of Burlinghame,
5th Dist. Stark No. 2010-CA-000124, 2013-Ohio-3447, that whether the employees were
reckless is a jury question, we disagree. Burlinghame was decided prior to the Supreme
Court’s decision in Anderson. In fact, Burlinghame was reversed by the Supreme Court
based on its decision in Anderson. Burlinghame v. Estate of Burlinghame, 134 Ohio
St.3d 490, 2012-Ohio-5698, 983 N.E.2d 1252.
{¶43} Here, the evidence is undisputed that the CBDD and its employees did not
consciously disregard Toros’s needs. They acted appropriately based upon the
information received from both Toros’s mother and doctor and their own observations.
Accordingly, we conclude the trial court did not err by granting summary judgment in
favor of the CBDD and its employees. The estate’s third assigned error is overruled.
{¶44} Judgment affirmed.
It is ordered that appellees recover from appellant costs herein taxed.
The court finds there were reasonable grounds for this appeal.
It is ordered that a special mandate be sent to the common pleas court to carry this
judgment into execution.
A certified copy of this entry shall constitute the mandate pursuant to Rule 27 of
the Rules of Appellate Procedure.
PATRICIA ANN BLACKMON, JUDGE
EILEEN A. GALLAGHER, J., CONCURS;
FRANK D. CELEBREZZE, JR., P.J.,
CONCURS IN JUDGMENT ONLY
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24 U.S. 414 (____)
11 Wheat. 414
WILLIAMS, Plaintiff in Error,
against
The PRESIDENT, DIRECTORS, and COMPANY OF THE BANK OF THE UNITED STATES, Defendants in Error.
Supreme Court of United States.
IN this case, in which Mr. Wright was for the *415 plaintiff in error, and Mr. Webster, for the defendants.
Mr. Chief Justice MARSHALL stated, that the writ of error must be dismissed, it having issued irregularly. The judgment in the Circuit Court of Ohio was a joint judgment, upon a joint action for money lent, against three defendants; and the writ of error was sued out by one of the defendants, in his own name only, without joining the others. The Court was of opinion, that the writ of error ought to have been in the name of the three; and if the others should refuse to join in it, that it would deserve consideration whether the present plaintiff might not have summons and severance.
Writ of error dismissed.
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805 F.2d 1036
Unpublished DispositionNOTICE: Sixth Circuit Rule 24(c) states that citation of unpublished dispositions is disfavored except for establishing res judicata, estoppel, or the law of the case and requires service of copies of cited unpublished dispositions of the Sixth Circuit.Myra SMITH, Plaintiff-Appellant,v.The STANDARD OIL COMPANY, Defendant-Appellee.
No. 85-4001.
United States Court of Appeals, Sixth Circuit.
Oct. 30, 1986.
Before MILBURN and BOGGS, Circuit Judges, and HARVEY, Senior District Judge*.
PER CURIAM.
1
Plaintiff Myra Smith appeals the district court's grant of summary judgment in favor of her former employer, The Standard Oil Company, in this hybrid wrongful discharge/breach of the duty of fair representation action brought under section 301 of the Labor Management Relations Act, 29 U.S.C. Sec. 185. Because the district court correctly held that plaintiff's claim is time-barred by the six-month statute of limitations set forth in DelCostello v. International Brotherhood of Teamsters, 462 U.S. 151 (1983), we affirm.
I.
2
Construed in the light most favorable to plaintiff, the party who defended against the motion for summary judgment, see Bosely v. City of Euclid, 496 F.2d 193, 197 (6th Cir.1974), the facts are as follows:
3
Plaintiff was hired as a laborer at defendant's Toledo refinery on June 21, 1974. She eventually was transferred to the refinery laboratory where she tested gasoline and other petroleum products. Throughout her employment with defendant, plaintiff was a member of the Oil, Chemical and Atomic Workers' International Union, Local 7-346.
4
Plaintiff was discharged on July 20, 1982, for failure to provide a satisfactory excuse for a three-month absence from work. Plaintiff alleged that she was on sick leave. Plaintiff deposed she received notification of her termination in August 1982 and alleged that while still hospitalized, she contacted Union representative John Simmons on five separate occasions and that Simmons promised union action on her behalf. However, in her deposition, plaintiff summarized her discussions with Simmons and her reactions as follows.
5
A. Yes, I talked with John. I called him for about--I would say for about a month and a half to two months. And all that he could tell me was that they were pushing it. And then finally he came out and told me that I would do better to go through Civil Rights, I would get faster results, as the arbitration there would take two to three years; and he felt that maybe I would want to be back to work by then. But what he said wasn't too inspiring and neither too comforting. So that's when I decided to go through Civil Rights.
6
Q. When did you talk to Mr. Simmons, do you recall?
7
A. It was through September and October.
8
* * *
9
A. ... I told [Simmons] that I wanted to file [a grievance]. And he said, okay, he would be out to file it. And I haven't heard from him from that day to this one.
10
Q. When was this, do you recall?
11
A. This was in October of '82.
12
* * *
13
Q. When did you realize that they [the Union] were not going to do anything?
14
A. When he [Simmons] told me to go to Civil Rights.
15
Q. When was that?
16
A. That was in October.
17
Q. October of '82?
18
A. Yes.
19
Q. So basically you knew by October of '82 that the union would not push your grievance, as you felt they would not push your prior grievances?
20
A. Yes.
21
(Emphasis supplied).
22
On January 19, 1984, plaintiff filed this action in state court. Defendant removed the action to federal court. Following the taking of plaintiff's deposition, defendant moved for summary judgment which was granted on October 31, 1985.
II.
23
The district court relied on Shapiro v. Cook United, Inc., 762 F.2d 49 (6th Cir.1985) (per curiam), wherein we stated:
24
[T]he general rule [is] that the [statute of limitations] begins to run when the claimant discovers, or in the exercise of reasonable diligence should have discovered, the acts constituting the alleged violation.... In the instant case, the plaintiff should have reasonably discovered that his claim had accrued by operation of the collective bargaining agreement. Under similar circumstances, this court expressly stated in Badon v. General Motors Corp., 679 F.2d at 98, that an employer's decision will become final through the operation of the collectively bargained-for private system of dispute resolution.
25
Id. at 51 (citations omitted). The district court held that because the collective bargaining agreement provides that a grievance must be filed within five days after termination or it will automatically be rejected, plaintiff should have known that her cause of action accrued in August 1982.
26
The district court correctly interpreted the law as to when plaintiff's cause of action arose. In Shapiro, this court cited with approval Metz v. Tootsie Roll Industries, Inc., 715 F.2d 299 (7th Cir.1983), cert. denied, 464 U.S. 1070 (1984). In Metz, the court observed:
27
In the case before us, the appellant has alleged that under the collective bargaining agreement all cases of discharge are subject to the grievance procedure, that all grievances must be filed within five days and that the Union failed to initiate the grievance procedure. We believe, therefore, that under the language of the collective bargaining agreement, the failure and refusal of the Union to file the grievance within the specified time amounted to a final decision.
28
Id. at 303.
29
Similarly, in the case at bar, plaintiff alleged in her complaint that the Union failed to file a grievance on her behalf. Accordingly, a final decision occurred once five days from plaintiff's termination passed without the Union having filed a grievance. Although plaintiff admits in her complaint that her employment was terminated on July 20, 1982, she deposed that she was informed of her discharge in August 1982. Giving plaintiff the benefit of the doubt by assuming that the date of discharge set forth in the collective bargaining agreement can be construed to mean the date the employee is so informed, plaintiff's cause of action must be held to have accrued sometime in August 1982 (no later than September 5, 1982).
30
However, the statute of limitations does not begin to run until plaintiff "discovers, or in the exercise of reasonable diligence should have discovered, the acts constituting the alleged violation." Shapiro, 762 F.2d at 51. The district court was on firm ground in holding that plaintiff should have known her cause of action accrued after the five days passed because she is charged with knowledge of the terms of the collective bargaining agreement. See Shapiro, 762 F.2d at 51. However, plaintiff argues that this holding is in error in light of her deposition testimony that Union representative Simmons informed her in October 1982 that the Union was "pushing" the grievance. Thus, she argues, it cannot be concluded that she should have known the collectively bargained grievance procedure had been completed, thereby triggering the commencement of the running of the statute of limitations.1
31
However, unlike Shapiro and Metz, it is unnecessary in the present case to determine when plaintiff should have known the Union had refused to file her grievance because there is direct evidence that plaintiff actually knew the Union would not push her grievance in October 1982. As set forth above, plaintiff deposed that in October 1982 she realized the Union was not going to do anything about her grievance. Accordingly, the statute of limitations began to run, at the latest, at that time, and her action filed some fifteen months later was untimely.
III.
32
We have considered plaintiff's remaining arguments and find them to be without merit. Accordingly, the decision of the district court is AFFIRMED.
*
Honorable James Harvey, Senior District Judge, United States District Court for the Eastern District of Michigan, sitting by designation
1
We reject plaintiff's assertion that her deposition testimony indicates the grievance had, in fact, been filed. First, this assertion conflicts with plaintiff's allegation in her complaint that the Union failed to file a grievance, as well as her later deposition testimony that Simmons never came out to file her grievance. Second, if the grievance was filed, this case would have to be dismissed as premature because plaintiff has not alleged any other date upon which the grievance/arbitration procedures concluded. See Metz, supra, 715 F.2d at 303 n. 7
Plaintif responds that there is an exception to the exhaustion requirement where such action would be futile. Plaintiff has not, however, made any showing as to the basis of her claim of futility, see Monroe v. International Union, UAW, 723 F.2d 22, 25 (6th Cir.1983) (per curiam), or when it was apparent that the contractual remedies were futile, see Miller v. Jeep Corp., 774 F.2d 111, 114 (6th Cir.1985) (intraunion remedies).
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209 F.3d 1122 (9th Cir. 2000)
LUCIO FLORES ORTEGA,Petitioner-Appellant,v.ERNEST C. ROE, Warden,ORDER Respondent-Appellee.
No. 97-17232
UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT
April 24, 2000
On Remand from the United States Supreme Court; D.C. No. CV-95-05612-GEB
Before: Robert R. Beezer, Cynthia Holcomb Hall and Pamela Ann Rymer, Circuit Judges.
ORDER
1
Upon consideration of the opinion of the Supreme Court we vacate our opinion in Ortega v. Roe, 160 F.3d 534 (9th Cir. 1998). This case is remanded to the district court for proceedings consistent with the opinion in Ernest C. Roe, Warden v. Lucio Flores-Ortega, 120 S. Ct. 1029 (2000).
2
The clerk is directed to issue the mandate forthwith
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Ramos v 200 W. 86 Apts. Corp. (2020 NY Slip Op 00227)
Ramos v 200 W. 86 Apts. Corp.
2020 NY Slip Op 00227
Decided on January 9, 2020
Appellate Division, First Department
Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431.
This opinion is uncorrected and subject to revision before publication in the Official Reports.
Decided on January 9, 2020
Richter, J.P., Gische, Gesmer, Kern, González, JJ.
10759 155667/18
[*1] Nestor Ramos, et al., Plaintiffs,
v200 West 86 Apartments Corp., Defendant-Appellant.
200 West 86 Apartments Corp., Third-Party Plaintiff-Appellant,
vBen Sevier, et al., Third-Party Defendants-Respondents.
Barclay Damon LLP, Albany (Colm P. Ryan of counsel), for appellant.
David A. Kaminsky & Associates, P.C., New York (James A. English of counsel), for respondents.
Order, Supreme Court, New York County (Doris Ling-Cohan, J.), entered July 9, 2019, which, inter alia, granted third-party defendants' motion to dismiss the third-party complaint, unanimously affirmed, without costs.
The court properly dismissed the claim for contractual indemnification. The alteration agreement could not serve as the basis for the contractual indemnification claim against the third-party defendant shareholders because paragraph 33 of the unsigned alteration agreement explicitly required its execution by third-party plaintiff cooperative to be enforceable
(see Stonehill Capital Mgt. LLC v Bank of the W., 28 NY3d 439, 451 [2016]). The lease also could not serve as a basis for the contractual indemnification claim because the third-party complaint failed to sufficiently allege a violation of the lease's indemnification provision in that it did not allege the shareholders' failure to comply with any provision of the lease, any act or omission by the shareholders or any act or omission by the cooperative while serving as the shareholders' agent.
The court also properly dismissed the claims for negligence, common-law indemnification and contribution as the third-party complaint failed to allege any duty, act, or omission of the shareholders (see McCarthy v Turner Constr., Inc., 17 NY3d 369, 375 [2011]; Raquet v Braun, 90 NY2d 177, 182 [1997]).
We have considered the remaining arguments and find them unavailing.
THIS CONSTITUTES THE DECISION AND ORDER
OF THE SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT.
ENTERED: JANUARY 9, 2020
CLERK
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FIFTH DIVISION
August 27, 2010
1-08-3474
ESTHER BROBBEY, a Minor, By Her Father )
and Next Friend, John Brobbey, ANNA )
BROBBEY, a Minor, By Her Father and Next )
Friend, John Brobbey, ENOCH BROBBEY, )
By His Father and Next Friend, John Brobbey, )
GBOYEGA ADERELE, a Minor, By Her Father )
and Next Friend, Adedotun Aderele, ADEDOYIN )
ADERELE, a Minor, By Her Father and Next )
Friend, Adedotun Aderele, GLADYS )
SHABANGY, KODZOVI NIPASSA, JOHN )
BROBBEY, ADEDOTUN ADERELE, ) Appeal from the
and KEJI ADERELE, ) Circuit Court of
) Cook County,
Plaintiffs-Appellants, )
) 05 L 004282
v. )
) The Honorable
ENTERPRISE LEASING COMPANY OF ) James D. Egan,
CHICAGO, ) Judge Presiding.
)
Defendant-Appellee, )
)
General Motors Corporation, and its Chevrolet )
Division, City Chevrolet, Buick and Geo, Inc., )
)
Defendants. )
PRESIDING JUSTICE TOOMIN delivered the opinion of the court:
In this appeal, we determine whether a defendant, in response to claim of spoliation, may
disclaim the duty to preserve evidence by simply providing notice to plaintiffs of its availability
for inspection prior to disposal. Plaintiffs initially brought the action below premised upon
claims of strict liability and negligence for injuries sustained in the operation of a van they rented
from defendant, Enterprise Leasing Company of Chicago. The accident allegedly was caused by
1-08-3474
the van’s failure to operate in a normal manner due to a manufacturing defect. Plaintiffs later
added a spoliation of evidence claim based on the destruction of the van by Enterprise. The
circuit court granted summary judgment in favor of Enterprise on the strict liability and
negligence claims and dismissed the spoliation claims. For the following reasons, we affirm in
part, reverse in part, and remand.
BACKGROUND
On April 18, 2003, John Brobbey rented a 2003 Chevrolet Astro van from Enterprise
Leasing (Enterprise) for a church retreat to Minnesota. The van was manufactured by General
Motors Corporation (GM) and was sold to Enterprise by City Chevrolet, Buick & Geo, Inc. (City
Chevrolet).1
At the time Brobbey rented the van, in moving the vehicle on Enterprise’s premises, he
noticed that the van wobbled and jerked whenever he applied the brakes. He immediately spoke
with the Enterprise rental agent and expressed his concerns. However, after the agent assured
Brobbey that there was nothing wrong with the vehicle, Brobbey drove the van from Enterprise
to his home. En route, he experienced the same problems and the van wobbled and jerked
whenever he applied the brakes. Because the Enterprise agent had assured him the van was fine,
he thought his perceived problems resulted simply from his lack of experience in driving the van.
Brobbey asked plaintiff Adedotun Aderele to drive the van to Minnesota for the Easter
1
Defendants GM and City Chevrolet settled with plaintiffs and no longer remain in the
litigation.
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retreat, which took place from April 18, 2003, to April 20, 2003. While en route to their
destination on the I-94 expressway, Aderele noticed wobbling or shaking of the steering wheel at
speeds between 40 and 50 miles per hour. As Aderele believed that the air pressure in one of the
front tires might be the problem, he left the highway and inspected the tires at the next gas
station. Noting that the tire pressure seemed normal, Aderele continued driving.
At the end of the retreat, on April 20, 2003, Aderele began the drive back to Chicago.
After driving for a couple of hours, he noticed that his hands continually drifted from left to right.
However, because Aderele was feeling tired and sleepy , he believed his drowsiness was the
cause. In turn, Gladys Shabangu, John Brobbey’s wife, offered to take over driving while
Aderele rested.
At about 4 p.m., Shabangu noticed that whenever she reduced speed by applying the
brakes, the van wobbled and the steering wheel shook. After about one hour of driving the van,
she told everyone who was awake that she would exit to give the van back to Aderele. As
Shabangu exited the highway, she was traveling at a speed of 75 miles per hour. She applied her
foot on the brake pedal, but the van failed to brake. When she attempted to depress the brake
pedal again, the vehicle began rolling over and she took her foot off the brake and just held onto
the steering wheel. Shabangu lost control and the van rolled over several times until it stopped.
Several of the passengers were forcefully ejected, and many sustained serious and permanent
injuries as a result.
Brobbey and Shabangu notified Enterprise of the incident and alleged mechanical defect
or brake malfunction. On May 1, 2003, Elco Administrative Services (Elco), the company
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handling claims for Enterprise, sent a letter to Brobbey and Shabangu stating:
“Due to the allegation you both made that the above vehicle had a brake
malfunction, we’ve filed a claim with the manufacturer. We will contact you both and
State Farm once we receive the manufacturer’s position.”
Enterprise also conducted its own investigation and concluded there was no malfunction
with the brake system. On September 23, 2003, Enterprise sent a certified letter to Brobbey and
Shabangu and informed them that, having found no defect or malfunction, Enterprise would be
releasing the van on September 30, 2003, unless the recipients responded. However, because of
serious permanent injuries sustained by family members, plaintiffs were unable to respond to
Enterprise’s letter. Enterprise released the van on October 17, 2003. In turn, the van was sold at
auction to Lombard Auto Wreckers and was thereafter destroyed on January 10, 2004.
Subsequently, in June or July 2004, Aderele asked Shabangu to find out where the van was, since
he was interested in learning what caused the accident, but was informed that it had been
scrapped.
On April 18, 2004, plaintiffs Brobbey and Shabangu, as guardians of the estate of Enoch
Kofi-Brobbey, with probate court approval and in payment of a medical lien released Mrs.
Brobbey, State Farm, “and all other persons, firms, or corporations liable or who might be
claimed to be liable.” Nipassa Kodzovi, Mr. Aderele, and the minor plaintiff Aderele also
executed similar releases.
On April 18, 2005, plaintiffs filed suit, alleging negligence against Enterprise, and both
negligence and strict liability against GM and City Chevrolet, asserting that the van was prone to
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roll over, had defective airbags, wobbled and was uncontrollable, and that the brakes failed
during normal operation. After discovery commenced, plaintiffs learned that in April 2004, GM
had recalled all 2003 Astro Chevrolet vans due to a suspension part defect that could result in a
loss of control. The recall vehicle identification number included the particular van that Brobbey
had rented from Enterprise. According to plaintiffs, the defect in the Astro vans was discovered
on May 19, 2003, upon inspection in Japan. Internal GM documents disclosed an “interference
condition” with the rubber boot that lubricates the lower ball joint in the front end suspension,
which was making contact with the steering knuckle and resulting in a cut in the rubber boot.
This breach of the lubricating mechanism could result in a loss of control and an accident.
On April 1, 2004, in connection with its safety recall, GM released a pertinent bulletin
relied upon by plaintiffs.2 In the bulletin, GM explained that the owner’s manual for the van
provided that the recommended lubrication interval for the ball joints for short trip/city driving
was either 3,000 miles or 3 months, whichever occurred first, or 7,500 miles or 12 months for
long trip/highway driving. The bulletin further stated that the technician should inspect for cut or
torn boots and ball joint wear, but “[i]n this case, the technician may not realize that the boot is
cut, because the ball joint rubber boot is designed to purge grease out of the vent” and the
“technician may not be able to distinguish purged grease from grease that might be leaking
though a cut boot.”
In the case sub judice, according to the affidavit of the claims administrator, there was no
2
It is unclear from the record, and from plaintiffs’ appendix of table of contents of the
record in their brief, whether these exhibits are part of the second amended complaint.
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documentation of any repair, inspection, or maintenance of the van from the date of its
manufacture, up until the date of the accident. As of that date, the van had been driven well over
3,000 miles.
During discovery, plaintiffs’ experts, Phillip Grismer and Gerald Rosenbluth, testified
that the short trip maintenance schedule of 3,000 miles should have been followed by a car rental
company such as Enterprise. In their affidavits and in their deposition testimony, both Grismer
and Rosenbluth also opined that Enterprise failed to timely lubricate the ball joints on the van
and that, had the lubrication been timely done, the defect would have been identified and could
have prevented the accident. Although Rosenbluth testified that there is potential for excessive
ball joint wear with either operator error or imbalance in the front tires causing vehicular
directional instability, it appeared from the photograph that the ball joint did not separate and that
there was no braking problem. Rosenbluth believed that the primary problem with the van was
that the vehicle was “out of balance,” where the “steering knuckle is squeezing the boot on one
side,” which would have shown up on the tire wear and tread had there been an inspection for
maintenance at 3,000 miles. The secondary problem was the ball joint issue. According to
Rosenbluth, a technician would readily observe that the steering knuckle was squeezing the boot
on one side and would know that would be a point of abrasion. Further, the pressure on the boot
“would be obvious and significant.”
Grismer acknowledged that just because the van had the condition does not mean that the
boot in this case was cut. However, given evidence of a failed ball joint, a damaged lower
control arm, a rolled over vehicle, and testimony from witnesses that there were steering and
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brake issues prior to the collision, Grismer concluded there was a failure of the front suspension
on the left-hand side. Grismer also opined that Enterprise should have followed the shorter 3,000
maintenance schedule because the van was a rental vehicle and Enterprise would have no idea of
the nature and extent of usage. Had Enterprise done a maintenance check and had the chassis
been lubricated, Grismer believed that the lower ball joint defect would have been discovered.
Enterprise’s expert, Edward Mays, was retained to examine the van; however, the focus
of his investigation was solely the brakes. He did not specifically inspect the suspension, nor was
he aware of the safety recall by GM. Mays observed the left front tire was flat, but did not notice
any misalignment. Further, although Mays did not check the front suspension, he testified that in
inspecting the brakes, he could not avoid seeing the front suspension, and he did not recall
observing anything abnormal. He offered no opinion as to the cause of the accident.
Lyndon Lie, an engineer for GM, testified that he saw the suspension system on a 2003
Astro van, but did not review the GM inspection report of the van at issue and could not tell from
the photographs taken of the van whether it had the particular defect which was the subject of the
recall. However, he agreed that there was a design defect in all of the 2003 Astro vans in the
steering knuckle, which is part of the front suspension system that is critical in a driver’s ability
to control the van when the vehicle is in motion.
Peter Rogulsky, an expert retained by GM, testified at his deposition that he learned that
this van was part of the GM safety recall. Rogulsky acknowledged that the photographs depicted
that the left front lower control arm was bent, but he opined that the rollover caused this dent.
Rogulsky further testified that the photographs showed that the ball joint was not worn.
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However, he did not know if the left front lower ball joint rubber boot was cut. He conceded that
the photographs did not show whether there was interference between the left front lower ball
joint rubber boot and the steering “knuckle,” or whether any grease was present on the left front
lower ball joint. Further, Rogulski opined that the shaking described by Brobbey and Aderele
was “most likely caused by rust on the brake rotors common in rental vehicles.” Rogulsky
opined that he believed that the shaking Aderele described “was most likely caused by tire
imbalance.”
On February 22, 2008, plaintiffs filed their second amended complaint, again alleging
negligence against Enterprise and adding a strict liability count, asserting that at the time the
vehicle left control of Enterprise, it was unreasonably dangerous and defective. The amended
complaint also brought a count against Enterprise for spoliation of evidence in disposing of the
van. Plaintiffs alleged that they were not informed of the product safety recall, notwithstanding
that GM and Enterprise knew or should have known of the defect prior to disposal of the van.
Thereafter, Enterprise and GM moved to dismiss the spoliation of evidence claim
pursuant to section 2-619 of the Code of Civil Procedure (735 ILCS 5/2-619 (West 2008)). On
July 17, 2008, the circuit court dismissed this count with prejudice, concluding that the certified
letter Enterprise sent to Brobbey and Shabangu on September 23, 2003, was sufficient to put all
plaintiffs on notice of the necessity to preserve the van.
Enterprise also moved for summary judgment on the strict liability and negligence claims,
alleging that plaintiffs failed to state a cause of action because of a lack of notice of a defect and
lack of a showing of proximate cause, and on the basis that any cause of action was barred by the
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releases signed by plaintiff’s under Aderele’s auto insurance policy. The circuit court granted
summary judgment on both the strict liability and negligence claims based solely on Enterprise’s
lack of notice of the defect from the manufacturer. Thereafter plaintiffs timely appealed.
ANALYSIS
Plaintiffs assert that the trial court erred in granting summary judgment on both the strict
liability and negligence counts on the rationale that Enterprise had no notice of any alleged
defect. Plaintiffs maintain that notice is not a defense to a strict liability claim. Plaintiffs further
assert that Enterprise in fact had constructive and/or actual notice of a defect in the van where:
(1) inspection or service of the van as recommended by the owner’s manual would have brought
the defect to light; and (2) based upon Brobbey’s complaints of problems with the vehicle at time
of the rental.
Summary judgment is appropriate when the pleadings, depositions and admissions show
that “there is no genuine issue as to any material fact and *** the moving party is entitled to a
judgment as a matter of law.” 735 ILCS 5/2-1005(c) (West 2008). See also Robidoux v.
Oliphant, 201 Ill. 2d 324, 335, 775 N.E.2d 987, 993-94 (2002). Though summary judgment can
aid in the expeditious disposition of a lawsuit, it remains a drastic measure and should be allowed
only “when the right of the moving party is clear and free from doubt.” Purtill v. Hess, 111 Ill.
2d 229, 240, 489 N.E.2d 867, 871 (1986). We review orders granting summary judgment de
novo. Dardeen v. Kuehling, 213 Ill. 2d 329, 335, 821 N.E.2d 227, 230 (2004).
Enterprise argued below that it was entitled to summary judgment based on section 388
of the Restatement (Second) of Torts, and the trial court agreed, basing its judgment on this
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ground. Restatement (Second) of Torts, §388 (1965) (hereafter Restatement). Section 388 of the
Restatement delineates a duty to warn of known defects under negligence principles. In the case
sub judice, the circuit court did not address whether the pleadings on file presented genuine
issues of material fact on the elements of the strict liability claim, instead relying solely on
Restatement section 388. “To establish a prima facie case in strict liability, a plaintiff must plead
and prove three elements: (1) that an injury resulted from a condition in the product; (2) the
condition of the product was unreasonably dangerous; and (3) the condition existed at the time
the product left the manufacturers control.” Saieva v. Budget Rent-A-Car of Rockford, 227 Ill.
App. 3d 519, 531, 591 N.E.2d 507, 515 (1992), appeal denied, 146 Ill. 2d 651, 602 N.E.2d 476
(1992), citing Norman v. Ford Motor Co., 160 Ill. App. 3d 1037, 1041, 513 N.E.2d 1053, 1055
(1987); D'Olier v. General Motors Corp., 145 Ill. App. 3d 543, 547, 495 N.E.2d 1040, 1043
(1986). At common law, all entities in the distributive chain of an allegedly defective product,
including manufacturers, sellers, wholesalers, distributors and lessors of the product, are strictly
liable in products liability actions for injuries resulting from that product. Murphy v. Mancari's
Chrysler Plymouth, Inc., 381 Ill. App. 3d 768, 887 N.E.2d 569 (2008).
We are of course cognizant that section 2-621 of the Code of Civil Procedure (735 ILCS
5/2-621 (West 2008)), enacted in 1979, known as the “seller’s exception,” allows for the
dismissal of a nonmanufacturer defendant from a strict liability product claim upon certifying the
correct identity of the manufacturer of the allegedly defective product. Murphy, 381 Ill. App. 3d
at 770, 887 N.E.2d at 573. Section 2-621(b) provides:
“Once the plaintiff has filed a complaint against the manufacturer or
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manufacturers, and the manufacturer or manufacturers have or are required to have
answered or otherwise pleaded, the court shall order the dismissal of a product liability
action based on any theory or doctrine against the certifying defendant or defendants,
provided the certifying defendant or defendants are not within the categories set forth in
subsection (c) of this Section.” 735 ILCS 5/2-621(b) (West 2008).
To overcome a motion under this section, plaintiffs must show that the certifying
defendant exercised some significant control over the design or manufacture of the product, or
had actual knowledge of or created the defect. 735 ILCS 5/2-621(c) (West 2008); Saieva, 227 Ill.
App. 3d at 526, 591 N.E.2d at 511. “[T]he purpose of section 2-621 is to allow a
nonmanufacturing defendant, who has not been shown to have created or contributed to the
alleged defect, to defer liability upstream to the ultimate wrongdoer, the manufacturer.” Saieva,
227 Ill. App. 3d at 526, 591 N.E.2d at 511, citing Cherry v. Siemans Medical Systems, Inc., 206
Ill. App. 3d 1055, 1060-61, 565 N.E.2d 215, 218 (1990); Logan v. West Coast Cycle Supply Co.,
197 Ill. App. 3d 185, 190-91, 553 N.E.2d 1139, 1142 (1990).
Here, the manufacturer of the van, GM, has settled its portion of this lawsuit with
plaintiffs. Enterprise had no control over the design or manufacturing of the van, and thus this
prong is irrelevant. Although plaintiffs do not cite to the above statutory provisions, they argue
that Enterprise had knowledge the van had a problem at the time plaintiffs rented it, and on this
basis should not be granted summary judgment on strict liability. Enterprise argues that it did not
have prerental notice of any defect or potentially dangerous condition with the van and plaintiffs’
complaints at the time were never “linked” to the specific defect. Thus, the relevant question is
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whether Enterprise had actual knowledge of the manufacturing defect that made the van
unreasonably dangerous, i.e., the problem with the rubber boot.
Under section 2-621(c), a nonmanufacturer must have “actual knowledge of the
unreasonably dangerous nature of the physical characteristics/design of the product, not just
actual knowledge that the physical characteristics/design existed, in order to avoid dismissal.”
Murphy, 381 Ill. App. 3d at 775, 887 N.E.2d at 576.
In order for Enterprise to incur strict liability for the manufacturing defect, plaintiffs had
to demonstrate that Enterprise had knowledge of that defect. Plaintiffs’ claim that they made
Enterprise generally aware of a problem with shaking or steering prior to the accident fails to
meet that test. Here, while the accident occurred in January 2003, the recall was in April 2004.
Moreover, it is undisputed that, although plaintiffs insist they complained of the steering and
wobbling, Enterprise did not know of the manufacturing defect until the recall bulletin a year
after the accident occurred. Thus, there is no genuine issue of material fact that Enterprise did
not have actual knowledge of this manufacturing defect. The court therefore correctly found that
Enterprise was not put on actual notice of the dangerous condition until it was notified after the
recall regarding the problematic situation with the ball joint leak. Pursuant to our de novo
review, we find that the circuit court properly granted summary judgment to Enterprise on
plaintiffs’ strict liability claim pursuant to section 2-621. See Saieva, 227 Ill. App. 3d at 526,
591 N.E.2d at 511. On this basis, we affirm that portion of the court’s judgment.
We next address the plaintiffs’ negligence claim. To establish a cause of action for
negligence, a plaintiff must show the following elements: the existence of a legal duty owed by
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the defendant to the plaintiff; breach of that duty; a resulting compensable injury to the plaintiff;
and that the breach was the proximate cause of the injury. South Side Trust and Savings Bank of
Peoria v. Mitsubishi Heavy, No. 1-09-0148, slip. op. at 19 (March 31, 2010), citing Miller v.
Dvornik, 149 Ill. App. 3d 883, 891, 501 N.E.2d 160, 166 (1986). Unlike strict liability, under a
theory of negligence it is not sufficient to show that the product is defective or not reasonably
safe; the plaintiff must also show that the defendant breached a duty owed to plaintiff.
Cornstubble v. Ford Motor Co., 178 Ill. App. 3d 20, 24, 532 N.E.2d 884, 886 (1988). Further,
not only must plaintiff prove that the product was not reasonably safe, but also that the defendant
knew, or in the exercise of ordinary care should have known, of that unsafe condition.
Cornstubble, 178 Ill. App. 3d at 24, 532 N.E.2d at 886 (1988). “In a negligence action, a
defendant may rebut plaintiff's proof by showing its exercise of reasonable care through evidence
of its testing and inspection procedures [citation], or evidence that it complied with industry
custom and practice. [Citation.]” Cornstubble, 178 Ill. App. 3d at 24-25, 532 N.E.2d at 886.
Again, our review of a grant of summary judgment is de novo. Dardeen, 213 Ill. 2d at 335, 821
N.E.2d at 230.
In its ruling, the circuit court again relied on section 388 of the Restatement. Section 388
of the Restatement delineates a duty to warn of known defects under negligence principles for
suppliers of chattel and provides the following:
Ҥ 388 Chattel Known to Be Dangerous for Intended Use
One who supplies directly or through a third person a chattel for another to use is
subject to liability to those whom the supplier should expect to use the chattel with the
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consent of the other or to be endangered by its probable use, for physical harm caused by
the use of the chattel in the manner for which and by a person for whose use it is
supplied, if the supplier
(a) knows or has reason to know that the chattel is or is likely to be dangerous for the
use for which it is supplied, and
(b) has no reason to believe that those for whose use the chattel is supplied will
realize its dangerous condition, and
(c) fails to exercise reasonable care to inform them of its dangerous condition or of
the facts which make it likely to be dangerous.” Restatement (Second) of Torts §388, at
300-01 (1965).
However, though section 388 applies to all suppliers of chattel, liability thereunder
pertains to circumstances where the chattel is known to be dangerous by the supplier. See
Restatement (Second) of Torts, §388(a) (1965). Here, as noted, there is no genuine issue of
material fact that Enterprise did not have knowledge of the defect until the manufacturer recall,
which was issued after the lease of the vehicle. Further, the Restatement provides the rules for
suppliers “are equally applicable to all persons who in any way or for any purpose supply chattels
for the use of others or permit others to use their chattels,” including section 388, but “[t]he
peculiar rules applicable to donors, lenders, and lessors of chattels are stated in §§ 405-408.”
Restatement (Second) of Torts, Scope Note, at 300. Section 408 provides:
Ҥ 408 Lease of Chattel for Immediate Use
One who leases a chattel as safe for immediate use is subject to liability to those
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whom he should expect to use the chattel, or to be endangered by its probable use, for
physical harm caused by its use in a manner for which, and by a person for whose use, it
is leased, if the lessor fails to exercise reasonable care to make it safe for such use or to
disclose its actual condition to those who may be expected to use it.” Restatement
(Second) of Torts §408, at 366 (1965).
Section 408 regarding the liability of lessors of chattel more appropriately applies.
Comment a to section 408 provides:
“a. When lessor must inspect. The fact that a chattel is leased for immediate use
makes it unreasonable for the lessor to expect that the lessee will do more than give it the
most cursory of inspections. The lessor must, therefore, realize that the safe use of the
chattel can be secured only by precautions taken by him before turning it over to the
lessee. *** If the chattel is made by a third person, the lessor is required to exercise
reasonable care to inspect it before turning it over to the lessee.” Restatement (Second)
of Torts §408, Comment a, at 366-67 (1965).
Unlike section 388, section 408 does not require prior actual knowledge of the condition
but, rather, sets forth a separate duty for lessors to exercise reasonable care. Plaintiffs’
negligence action is based not only on the existence of the manufacturing defect or Enterprise’s
alleged knowledge of same, but also on Enterprise’s failure to conduct a reasonable inspection of
the van at 3,000 miles, pursuant to the manual. Thus, contrary to the circuit court’s reliance on
section 388, we find that section 408 more appropriately applies to the negligence claim against
Enterprise.
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It is well established that “ ‘a bailor is liable to an injured third person if (1) he supplied
the chattel in question[;] (2) the chattel was defective at the time it was supplied[;] (3) the defect
could have been discovered by a reasonable inspection, when inspection is required (i.e., where
the danger of substantial harm because of a defect is great, as we deem it is here)[;] and (4) the
defect was the proximate cause of the injury.’ ” Brooks v. Essex Crane Rental Corp., 233 Ill.
App. 3d 736, 739-40, 599 N.E.2d 111, 113 (1992), quoting Huckabee v. Bell & Howell, Inc., 47
Ill. 2d 153, 158, 265 N.E.2d 134, 137 (1970). See also Retzler v. Pratt & Whitney Co., 309 Ill.
App. 3d 906, 916, 723 N.E.2d 345, 353 (1999).
Enterprise nonetheless maintains that the evidence here is undisputed that even had the
van been inspected, this manufacturing defect would not have discovered. Regarding this
allegation, the trial court stated, “I don’t believe there is any expert testimony [the defect] could
have been found at that point.”
Apparently, the circuit court did not recall the opinions of both of plaintiffs’ experts. As
noted, Rosenbluth opined that a technician performing a lubrication of the ball joint at 3,000
miles would see a compromised ball joint boot with lubricant emanating from that region and
would readily observe that the steering knuckle was squeezing the boot on one side and would
know, as a technician, that that would be a point of abrasion, and the pressure on the boot “would
be obvious and significant.” Plaintiff’s other expert, Grismer, also opined that Enterprise should
have followed the shorter 3,000 maintenance schedule because the van was a rental vehicle and it
would have no idea what kind of usage there was, so one would err on the side of caution.
Grismer opined that, had Enterprise done a maintenance check and had the chassis been
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lubricated, Enterprise would have discovered the lower ball joint defect. Notably, it is
undisputed that the maintenance records for the subject van have not been presented. Hence, we
find that plaintiffs have sufficiently alleged and also presented evidence that Enterprise should
have inspected the van at 3,000 miles and that upon a reasonable inspection the defect would
have been discovered.
Nonetheless, defendant further maintains that summary judgment on the negligence claim
was appropriate given the undisputed evidence establishing it was Shabangu’s negligence in
speeding on the exit ramp that caused the accident. However, in response to Enterprise’s motion
for summary judgment, plaintiffs specifically denied that Shabangu was speeding on the exit
ramp but rather maintained that she lost control of the van due to the design defect, which caused
the van to be unable to slow down or stop. Thus, we find that such issues are disputed factual
questions, which are genuine issues of material fact and are wholly inappropriate for us to
resolve. Although Enterprise admits that the van in this case was part of the recall, it disputes
that this defect caused the accident in this case. Enterprise argues that “the physical and
diagnostic evidence simply does not corroborate that she ever braked on the ramp.” Yet, in
making these arguments, Enterprise is essentially weighing the evidence. The instant
proceedings are rife with factual issues concerning the proximate cause of this accident.
Though defendant repeatedly underscores evidence of Shabangu’s asserted negligence in
speeding while exiting on the ramp, this argument hinges on the determination of proximate
cause and would go toward establishing comparative negligence. “The question of proximate
cause is ordinarily one for the jury.” King v. Petefish, 185 Ill. App. 3d 630, 641, 541 N.E.2d 847,
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854 (1989), citing Ney v. Yellow Cab Co., 2 Ill. 2d 74, 117 N.E.2d 74 (1954), and Felty v. New
Berlin Transit, Inc., 71 Ill. 2d 126, 374 N.E.2d 203 (1978). “Under the theory of pure
comparative negligence, it is also the fact finder's duty to determine the relative degree of fault of
the parties and reduce the plaintiff's award accordingly.” King, 185 Ill. App. 3d at 641, 541
N.E.2d at 854. Here, there is a genuine issue of material fact as to whether Shabangu was
negligent in her use of the van or whether Enterprise supplied a van with a defect that caused the
accident, which could have been discovered if Enterprise had exercised reasonable inspection.
Viewing all the evidence in the light most favorable to plaintiffs, as we must, we reverse the
grant of summary judgment on the negligence claim.
Finally, we address plaintiffs’ assertion that the trial court erred in granting dismissal of
their spoliation claim. When a court rules on a section 2-619 motion to dismiss, it “must
interpret all pleadings and supporting documents in the light most favorable to the nonmoving
party.” In re Chicago Flood Litigation, 176 Ill. 2d 179, 189, 680 N.E.2d 265, 270 (1997). “The
court should grant the motion only if the plaintiff can prove no set of facts that would support a
cause of action.” In re Chicago Flood Litigation, 176 Ill. 2d at 189, 680 N.E.2d at 270. “Our
review of a section 2-619 dismissal is de novo.” Van Meter v. Darien Park District, 207 Ill. 2d
359, 368, 799 N.E.2d 273, 278 (2003).
Under Illinois law, spoliation of evidence is a form of negligence; proof of spoliation
requires a showing that the defendant owed the plaintiff a duty to preserve evidence, breached
that duty, and thereby proximately caused the plaintiff to be unable to prove the underlying cause
of action. Boyd v. Travelers Insurance Co., 166 Ill. 2d 188, 194-95, 652 N.E.2d 267, 270,
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(1995). This is a two-step analysis; “[a]s a threshold matter, we must first determine whether
such a duty arises by agreement, contract, statute, special circumstance, or voluntary
undertaking.” Dardeen, 213 Ill. 2d at 336, 821 N.E.2d at 231, citing Boyd, 166 Ill. 2d at 195, 652
N.E.2d at 270-71. “If so, we must then determine whether that duty extends to the evidence at
issue-i.e., whether a reasonable person should have foreseen that the evidence was material to a
potential civil action.” Dardeen, 213 Ill. 2d at 336, 821 N.E.2d at 231, citing Boyd, 166 Ill. 2d at
195, 652 N.E.2d at 271.
Enterprise maintains that plaintiffs Brobbey and Shabangu themselves were culpable for
not preserving the van because they “showed no interest in cooperating with Enterprise to
investigate their claim” and “simply neglected their own rights.” In support, Enterprise cites to
Burlington Northern & Santa Fe Ry. Co. v. ABC-NACO, 389 Ill. App. 3d 691, 713, 906 N.E.2d
83, 102 (2009) (“NACO effectively concedes that its representatives were at the derailment site
and did not request preservation of the items that they now discuss”). However, we find
Burlington Northern & Santa Fe Ry. Co. distinguishable, as there, NACO’s representative was
actually present at the inspection site, and even took photographs that were later misplaced, but
thereafter did not request further examination of the site or request that any items of evidence be
preserved. Burlington Northern & Santa Fe Ry. Co., 389 Ill. App. 3d at 713, 906 N.E.2d at 102.
Here, on the contrary, plaintiffs were not present for the inspection of the van and did, in fact,
later request to inspect the vehicle.
Enterprise claims that plaintiffs had nearly four months’ opportunity to inspect the van
and/or request its preservation. Yet, the letter sent to plaintiffs was dated September 23, 2003,
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and only provided plaintiffs until September 30, 2003, to request preservation of the van, thus
providing plaintiffs with less than a week’s time to respond. We find imposing such a short
time-frame on plaintiffs to respond extremely troubling, especially given the severity of the
accident and plaintiffs’ injuries. Further, Enterprise offers no authority for finding a waiver of a
clearly established duty to preserve evidence, nor has our research revealed any.
Enterprise further argues that “to the extent [p]laintiffs allege, and the circumstances
show, that Enterprise assumed a duty to preserve the van, it is axiomatic that an undertaken duty
is self-limited by the scope of the undertaking itself.” Curiously, however, Enterprise cites no
authority for this asserted “axiomatic” proposition either. While generally this proposition is true
for a voluntary undertaking, we find no such limitation in Boyd and its progeny regarding the
duty to preserve evidence for potential litigants.
On the contrary, we find that Illinois courts have not imposed such a limitation. The
Jones court held that the plaintiff satisfied the elements of a spoliation claim by alleging that the
third party defendant had a duty to preserve the wheel assembly involved in an accident, where it
was alleged that a reasonable party would have recognized that the wheel assembly was material
to the negligence action. Jones, 322 Ill. App. 3d at 423, 752 N.E.2d at 13. The facts were
sufficient to impose the duty to preserve the wheel assembly on both the insurer and the owner of
the vehicle who was in possession of the wheel assembly after the accident.
Enterprise further maintains that plaintiffs’ assertion that the recall of the 2003 Chevy
Astro vans constituted such “special circumstances” under Boyd fails factually because of the
chronology of events and because of the absence of any showing that Enterprise had any
20
1-08-3474
knowledge of the recall prior to the destruction of the van. However, our supreme court in
Dardeen addressed the issue of what constitutes a “special circumstance” and analyzed it in the
following manner:
“We hinted at what special circumstances might give rise to a duty to preserve
evidence in Miller v. Gupta, 174 Ill. 2d 120 (1996). In Miller, a medical malpractice
plaintiff's attorney requested X rays from the plaintiff's doctor. The doctor complied and
obtained the X rays. Before taking the X rays to the hospital to copy them, he placed
them on the floor of his office near the wastebasket. The X rays disappeared. A
housekeeping employee who cleaned the doctor's office guessed that she disposed of the
X rays, which were later incinerated. We remanded to allow the plaintiff to amend her
negligent spoliation claim to satisfy Boyd. Miller, 174 Ill. 2d at 129.
Unlike the plaintiff in Miller, Dardeen never contacted the defendant to ask it to
preserve evidence. Dardeen never requested evidence from State Farm, and he never
requested that State Farm preserve the sidewalk or even document its condition. And
though he visited the accident site hours after he was injured, he did not photograph the
sidewalk. Additionally, unlike the doctor in Miller, State Farm never possessed the
evidence at issue and, thus, never segregated it for the plaintiff's benefit.” Dardeen, 213
Ill. 2d at 338, 821 N.E.2d at 232.
In adherence to the analysis employed in Dardeen, we discern that Enterprise had a duty
to exercise reasonable care to preserve the van for the benefit of plaintiffs as potential litigants.
Notably, here, plaintiffs specifically complained both before and after the accident that there was
21
1-08-3474
some defect that caused the van to wobble, the steering wheel to shake, and the brakes to
malfunction. Enterprise then undertook to preserve the van to conduct its own inspection of
plaintiffs’ allegations of malfunction. The van was in the possession and control of Enterprise.
According to its letter, Enterprise also segregated the van for the benefit of plaintiffs. Further,
though Enterprise argues they were not timely, plaintiffs in fact did request to inspect the van.
These facts constitute the “special circumstance,” and not merely the specific fact of the
manufacturer recall. The plaintiffs claim the destruction of the van, Enterprise’s letter
notwithstanding, was not an exercise of reasonable care, and we cannot say as a matter of law
that the allegation here is deficient. Under Boyd and its progeny, we perceive that plaintiffs
sufficiently alleged that a reasonable person would have foreseen that the van was material
evidence to a potential civil action.
Lastly, defendant asserts that it had no relationship with the other nine passengers that
could give rise to a circumstantial duty to preserve the van, and that plaintiffs cannot rely on
foreseeability of harm alone. Enterprise argues that it does not owe any duty to the other
plaintiffs to preserve the van. However, a similar argument was rejected in Stinnes Corp. v.
Kerr-McGee Coal Corp., 309 Ill. App. 3d 707, 722 N.E.2d 1167 (1999), where the defendant
argued that the plaintiff had no pretort relationship with the plaintiff which would give rise to a
duty to preserve evidence, and that the voluntary assumption of a duty did not flow to the
plaintiff because, under Boyd, that duty only flows to the personal injury tort victims. The court
rejected this argument because there was no such distinction that could be gleaned from the Boyd
opinion, and in fact, case law holds to the contrary. Stinnes Corp., 309 Ill. App. 3d at 715, 722
22
1-08-3474
N.E.2d at 1173. The court cited Shimanovsky v. General Motors Corp., 181 Ill. 2d 112, 692
N.E.2d 286 (1998), where our supreme court held that the plaintiff's destructive testing of an
automobile’s allegedly defective power-steering components prior to the commencement of a
lawsuit warranted the imposition of a discovery sanction against the plaintiff.
In Shimanovsky, the defendant sought the imposition of a sanction after the plaintiff's
experts either altered the condition of or partially destroyed the power-steering components. Our
supreme court held that a potential litigant owes a duty to an opposing party “to take reasonable
measures to preserve the integrity of relevant and material evidence.” Shimanovsky, 181 Ill. 2d at
121, 692 N.E.2d at 290. The Stinnes Corp. court reasoned, “the Shimanovsky court did not limit
its analysis to plaintiffs in personal injury lawsuits, but the court said that any ‘potential litigant’
owes the duty to preserve evidence.” Stinnes Corp., 309 Ill. App. 3d at 716, 722 N.E.2d at 1173.
“A plaintiff in a negligence case based upon spoliation of evidence need only allege that a
reasonable person in the defendant’s position should have foreseen that the evidence in question
was material to a potential civil action. There is no requirement that the plaintiff allege the
existence of any ‘special relationship’ which would give rise to that knowledge.” Jones, 322 Ill.
App. 3d at 422-23, 752 N.E.2d at 12. A duty extends to particular evidence if a reasonable
person should have foreseen that the evidence was material to a potential civil action. Dardeen,
213 Ill. 2d at 336, 821 N.E.2d at 231. Thus, Enterprise cannot sustain the dismissal of the
spoliation claim on this argument either.
Boyd remains our supreme court’s “watershed pronouncement on spoliation of evidence.”
See Dardeen, 213 Ill. 2d at 335, 821 N.E.2d at 231. Our supreme court held that the trier of fact
23
1-08-3474
should hear the negligent spoliation claim concurrently with the underlying suit on which it is
based because “[i]f a plaintiff loses the underlying suit, only the trier of fact who heard the case
would know the real reason why.” Boyd, 166 Ill. 2d at 198, 652 N.E.2d at 272. Further, the
court reasoned, “[t]his factor is important because a spoliator may be held liable in a negligence
action only if its loss or destruction of the evidence caused a plaintiff to be unable to prove the
underlying suit.” (Emphasis in original.) Boyd, 166 Ill. 2d at 198, 652 N.E.2d at 272. The
amount of damages should be determined by the trial court and the trier of fact after a full trial on
the merits. Boyd, 166 Ill. 2d at 198, 652 N.E.2d at 272. We do not apply an evidentiary
presumption, as “[a] plaintiff should not be allowed to recover with an evidentiary presumption
where it can be proven that the underlying suit is meritless.” Boyd, 166 Ill. 2d at 200, 652 N.E.2d
at 273. Thus, the underlying negligence claim must proceed, based on the facts before us, and
then the issue of spoliation should be decided. Further, even if the underlying negligence claim
fails, a claim for spoliation may still survive. See Miller v. Gupta, 174 Ill. 2d 120, 129-30, 672
N.E.2d 1229, 1233-34 (1996) (although the plaintiff's underlying claim was procedurally
defective and required dismissal, the plaintiff could still amend the complaint proceed with the
spoliation action).
CONCLUSION
For the foregoing reasons, we affirm the grant of summary judgment on the strict liability
count against Enterprise, reverse the grant of summary judgment on the negligence claim and
dismissal of the spoliation claim, and remand this case for further proceedings consistent with
this opinion.
24
1-08-3474
Affirmed in part and reversed in part. Cause remanded.
HOWSE and LAVIN, JJ., concur.
25
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543 So.2d 560 (1989)
William J. DORÉ
v.
JEFFERSON GUARANTY BANK, et al.
No. 88-CA-1799.
Court of Appeal of Louisiana, Fourth Circuit.
April 27, 1989.
*561 Mark B. Meyers, T.A., S. Ault Hootsell, III, Phelps, Dunbar, Marks, Claverie & Sims, New Orleans, for plaintiff-appellee.
David L. Colvin, Gretna, for defendants-appellants.
Before CIACCIO, WARD and PLOTKIN, JJ.
WARD, Judge.
Ocean Salvage Corporation (OSC) appeals the Trial Court's judgment granting a preliminary injunction in favor of Pipelines, Incorporated (Pipelines). We affirm the ruling of the Trial Court.
Pipelines leased from William J. Doré a tract of waterfront property with docking facilities on the Harvey Canal for eight years. Suit was originally filed in the name of the owner and lessor of the property, William J. Doré, on February 24, 1988; however, Pipelines was substituted as the proper party plaintiff on May 13, 1988. Adjacent to Pipelines' leased premises is a similar tract owned by Jefferson Guaranty Bank, leased by OSC and Doug Adams for use as a salvage, docking and storage facility. Of the three parties defendant, OSC alone appeals the lower court ruling.
Pipelines sued Jefferson Guaranty Bank, OSC and Adams to compel OSC's removal of debris and other material it placed on Pipelines' premises and to enjoin OSC's trespass.
Testifying at the preliminary injunction hearing, James J. Doré, president of Pipelines, established an ongoing series of OSC's intrusions. Doré chronicled eight instances of OSC's trespasses from May 1986 through June 1988 during which time OSC placed scrap iron, storage tanks, oilfield equipment, drilling pipe, sheet metal, and assorted other refuse on Pipelines premises. Doré recounted instances when OSC entered onto Pipelines' premises for removal of these items, often through use of cranes and heavy industrial equipment, which interfered with Pipelines' ongoing business operations and created a danger to its employees and business invitees. Pipelines complained to Doug Adams of OSC about the situation on several occasions and twice enlisted the aid of the Plaquemines Parish Police Department to stop the intrusions.
Based upon Doré's uncontroverted testimony, the Trial Court granted Pipelines' request for a preliminary injunction prohibiting OSC's entrance or other unlawful encroachment onto Pipelines' premises or use of its wharf area. The Court further ordered OSC, Adams and Jefferson Guaranty Bank to remove from Pipelines' premises "all movables and accompanying trash and debris ... illegally placed thereon by or at the direction of [OSC, Adams or Jefferson Guaranty Bank]".
C.C.P. Art. 3663 provides injunctive relief in a suit brought to enjoin trespassers and other disturbers, even though the action is neither possessory nor petitory. Official Revision Comments to C.C.P. Art. 3663. Unlike most injunctive relief, Art. 3663 requires no showing of irreparable harm by the plaintiff, but does mandate proof of possession for one year prior to disturbance, and suit must be brought within one year of the disturbance. David v. Dixie Rice Agricultural Corporation, 379 So.2d 62 (La.App. 3rd Cir.1979); writ denied 382 So.2d 166 (1980); Parkway Development Corporation v. City of Shreveport, 330 So.2d 646 (La.App. 2nd Cir.1976) affirmed 342 So.2d 151 (1977). A lessee's remedy for trespass to property is injunctive relief under C.C.P. arts. 3601 and 3663. Manzanares v. Meche, 506 So.2d 957 (La.App. 3rd Cir.1987); writ denied 508 So.2d 822 (1987).
OSC's first of three assignments of error charges the Trial Court erred in granting injunctive relief under C.C.P. Art. 3663 on a suit filed more than one year after OSC's first disturbance of Pipelines' *562 possession. OSC does not question the existence or duration of Pipelines' possessory interest under C.C.P. Art. 3663 or the Trial Court's factual finding that OSC did trespass but rather maintains that Pipeline failed to timely institute suit. Citing Parkway Development Corp., supra, OSC argues that because Pipelines alleges OSC's trespass began in October 1986, Pipelines' suit filed in February 1988, more than one year after the disturbance, was barred by the prescriptive limitations of C.C. Art. 3492.
OSC's trespass was ongoing from May 1986 with transgressions in June and December 1987 and January, April, May and June 1988. Pipelines' cause of action was not barred by prescription because OSC's litter constituted a continuing trespass which does not prescribe until all debris is removed. Terral v. Poole, 484 So.2d 227 (La.App. 3rd Cir.1986).
OSC's second assignment maintains that a preliminary injunction can only be prohibitive and therefore, the Trial Court's ordering the removal of the movables and debris on Pipelines' premises was error. This assignment lacks merit.
Injunctions may compel, as well as constrain, a party's actions. Baton Rouge Bldg. Trades Council v. T.L. James & Co., 201 La. 749, 10 So.2d 606 (1942). Gamburg v. City of Alexandria, 85 So.2d 276 (La. App.2d Cir.1956); Harris v. Pierce, 73 So. 2d 330 (La.App.Orl.Cir.1954).
OSC relies on the decision of our Supreme Court in Verdun v. Scallon Brothers Contractors, Inc., 263 La. 1073, 270 So.2d 512 (1972), wherein the Court said that an "Injunction may be used to prevent but not to correct a wrong; it cannot be used to redress an alleged consumated wrong or undo what has already been done." 270 So.2d at 513. In Verdun, the Supreme Court did not decide the merits of the request for injunctive relief, because the Trial Court, after issuing the injunction, granted a suspensive appeal. While the appeal was pending the defendants removed the soil from the levee, the very action the plaintiffs had sought to enjoin, and the petition for an injunction was moot.
In this case Pipelines seeks an injunction to prevent a wronga continuing trespass by OSC. An injunction that prohibits a continuing trespass brought about by the placing of movables on another's property will always require some action to remove the property to stop the trespass. Nonetheless, the injunction is proper; it prohibits the trespass, it prevents a wrong.
The issuance of mandatory injunctive relief at a preliminary injunction hearing, wherein all parties have notice that such relief has been prayed for and afforded an opportunity to present their case, is proper. Kliebert Educational Trust v. Watson Marine Services, Inc., 454 So.2d 855 (La.App. 5th Cir.1984).
The record shows OSC was served with notice of the preliminary injunction hearing. The notice unequivocally informed OSC of Pipelines request for mandatory injunctive relief requiring removal of the debris from Pipelines premises. The court conducted an evidentiary hearing at which all parties were present, represented by counsel and were afforded the opportunity to present evidence and cross examine witnesses.
OSC's final argument complains that the judgment granting the preliminary injunction is defective because it "expanded the prayer for relief," because it ordered removal of debris and threatened contempt proceedings in the event of disobeyance of this order. This argument is meritless.
Pipelines requested, in both the body and prayer of the pleading, that the Court enjoin OSC's trespass as well as order it to remove from Pipeline's premises the movables it illegally placed thereon. The judgment tracks the language of Pipelines petition for injunctive relief.
Whether or not expressly stated, disobeyance of an injunction is punishable by contempt of court. C.C.P. art. 3611. The inclusion of this language adds nothing to the force of the judgment. Finding no error by the Trial Court, we affirm the *563 Judgment. All costs of this appeal are assessed to OSC.
AFFIRMED.
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514 F.3d 982 (2008)
CORNHUSKER CASUALTY INSURANCE COMPANY, Plaintiff-Appellee,
v.
Chris KACHMAN, Defendant, and
The Brooks Samples, individually and as Personal Representative of the Estate of Leanne Samples, Defendant-Appellant.
No. 06-35106.
United States Court of Appeals, Ninth Circuit.
Argued and Submitted October 19, 2007.
Filed January 30, 2008.
*983 Kevin Coluccio, Garth L. Jones, Paul L. Stritmatter, Stritmatter Kessler Whelan Withey Coluccio, Hoquiam, WA, for defendant-appellant Brooks Samples.
Irene M. Hecht, Maureen M. Falecki, Keller Rohrback L.L.P., Seattle, WA, for plaintiff-appellee Cornhusker Casualty Insurance Company.
Before; RONALD M. GOULD and RICHARD A. PAEZ, Circuit Judges, and LYLE E. STROM,[*] District Judge.
GOULD, Circuit Judge:
ORDER
This case arises from a dispute over whether Cornhusker Casualty Insurance Company ("Cornhusker") insured Rockeries, Inc. ("Rockeries"), a Washington landscaping company, on October 22, 2004, the day Leanne Samples was fatally injured in an automobile accident with an employee of Rockeries. Brooks Samples, Leanne's husband and the administrator of her estate, brought a wrongful death action against Rockeries and its owners in. Washington state court. Cornhusker then brought suit in federal district court against Rockeries and Samples seeking a declaratory judgment that, prior to the accident, it had effectively cancelled its policy insuring Rockeries because of nonpayment of premiums. The district court granted summary judgment in favor of Cornhusker and denied Samples' cross-motion for summary judgment. Samples appealed the district court's decision. We had jurisdiction pursuant to 28 U.S.C. § 1291. In an opinion filed concurrently with this order, we rejected Cornhusker's waiver argument and Samples' equitable estoppel claim. This order certifies to the Washington State Supreme Court the remaining and dispositive[1] question of state *984 law before usnamely, whether notice sent by certified mail satisfies the "mailed" requirement of the Revised Code of Washington § 48.18.290 (1997) ("RCW § 48.18.290") such that a cancellation letter sent via certified mail gives sufficient notice under RCW § 48.18.290, even if the letter is never received by the insured.
I
Before addressing the question to be certified, we summarize the material facts: Beginning on June 28, 2000, Cornhusker, a Nebraska company, provided commercial auto insurance for Rockeries. The policy renewed annually with a "quarterly" payment plan under which, after the first year, the total annual premium was billed in four equal installments throughout the year as specified on each installment notice. On eleven separate occasions during the more than four years that Cornhusker insured Rockeries, Rockeries did not pay a premium installment on time. After each payment deadline passed, Cornhusker sent a letter notifying Rockeries of the date the policy would be cancelled if Cornhusker did not receive Rockeries' payment. On all but two of these occasions, Rockeries paid the amount due before the cancellation date and Cornhusker sent Rockeries a notice that Rockeries' policy would be reinstated with no lapse in coverage. Rockeries did not pay by the cancellation date in January of 2001, but Cornhusker did not cancel Rockeries' policy because the envelope containing the payment was postmarked before the cancellation date and the payment was received within five days of the cancellation date.
After Rockeries did not pay the premium installment due on September 2, 2004, Cornhusker, on September 29, 2004, sent via certified mail a letter notifying Rockeries that the policy would be cancelled if the payment was not received by October 19, 2004. Rockeries did not pay by the cancellation date for the second time and Cornhusker cancelled Rockeries' policy on October 19. On October 22, 2004, Leanne Samples was fatally injured in an automobile accident with a Rockeries employee. Rockeries notified its insurance broker of the accident on October 25, 2004, and Cornhusker received a check from Rockeries for the past-due premium installment on October 28, 2004. Rockeries never received the cancellation letter that Cornhusker sent by certified mail on September 29, and the letter was returned to Cornhusker on November 1, 2004.
Brooks Samples, Leanne's husband and the administrator of her estate, brought a wrongful death action against. Rockeries and its owners in Washington state court. Cornhusker then filed suit in federal district court against Rockeries and Samples seeking a declaratory judgment that it had effectively cancelled its policy insuring Rockeries before the accident because of nonpayment of premiums and that it therefore had no obligation to provide Rockeries with a defense or to assume any liability in the wrongful death action.
The district court granted Cornhusker's motion for summary judgment and denied Samples' cross-motion for summary judgment, holding that as a matter of law certified mail satisfies the "mailed" requirement established in RCW § 48.18.290 and that a letter of cancellation sent via certified mail gives sufficient notice of cancellation to comply with the statute even if, as in this case, the cancellation letter was never actually received by the insured. Samples appealed the district court's judgment.
In an opinion accompanying this order, we have disposed of the two other issues on appeal. We have rejected Cornhusker's argument that Samples waived his right to argue that certified mail, unlike *985 regular mail, must actually be received in order to satisfy the statutory notice requirement of RCW § 48.18.290, concluding that Samples sufficiently raised this issue before the district court. In the same opinion, we have rejected Samples' equitable estoppel argument, determining that Cornhusker's requirement that Rockeries pay a premium installment on September 2, 2004 was consistent with the installment notices sent to Rockeries and the payment schedule of the three previous years it collected payments from Rockeries.
II
We now turn to the issue that is the basis of our certification order: whether notice of cancellation sent by certified mail is "mailed" for purposes of RCW § 48.18.290. Specifically, the issue is whether a letter of cancellation sent via certified mail gives sufficient notice of cancellation to comply with RCW § 48.18.290, even if the cancellation letter is never received by the insured.
The relevant subsections of RCW § 48.18.290, as it existed in 2004,[2] include:
Subsection (1): Cancellation by the insurer of any policy . . . may be effected as to any interest only upon compliance with the following:
Subsection (1)(a): Written notice of such cancellation, accompanied by the actual reason therefor, must be actually delivered or mailed to the named insured. . . .
Subsection (2): The mailing of any such notice shall be effected by depositing it in a sealed envelope, directed to the addressee at his or her last address as known to the insurer or as shown by the insurer's records, with proper prepaid postage affixed, in a letter depository of the United States post office. The insurer shall retain in its records any such item so mailed, together with its envelope, which was returned by the post office upon failure to find, or deliver the mailing to, the addressee.
We certify this question because we conclude that neither the Washington State Supreme Court nor the state court of appeals has yet answered definitively whether a letter of cancellation sent by an insurer via certified mail but never received by the insured satisfies the notice requirements imposed by RCW § 48.18.290 to cancel an insurance policy.[3]
On the one hand, and arguing against treating notice sent by certified mail as "mailed" for purposes of RCW § 48.18.290, although "mailed" is not defined in RCW § 48.18.290, in five other sections of the Revised Code of Washington ("RCW") "mail" is defined to mean only "regular mail," and no section of the RCW defines the term to include certified mail. See, e.g., RCW §§ 15.44.010, 15.65.020(27), *986 15.66.010(17), 16.67.030(13), 34.05.010(10). Moreover, the Washington State Legislature has explicitly authorized the use of certified mail or registered mail as a form of mailing on numerous occasions, see, e.g., RCW §§ 4.28.330, 6.27.130(1), 7.04A.090, including at least six provisions in Title 48, which governs insurance practices and procedures and includes RCW § 48.18.290, see, e.g., RCW §§ 48.03.040(5), 48.05.210(1), 48.05.485. The silence of RCW § 48.18.290 with respect to certified mail in light of the other Washington statutes that explicitly authorize its use might possibly indicate a deliberate choice by the Washington State Legislature, and "[w]here the Legislature omits language from a statute, intentionally or inadvertently, . . . [a reviewing] court will not read into the statute the language that it believes was omitted." State v. Moses, 145 Wash.2d 370, 37 P.3d 1216, 1218 (2002).[4]
If sending notice of cancellation by certified mail does not qualify as "mailed" under RCW § 48.18.290, then Samples argues that it falls under the "actually delivered" prong of RCW § 48.18.290, requiring that certified mail be received by the addressee in order to be effective under the statute. Under this approach, certified mail would be treated like courier delivery or Federal Express, which are similar in form to certified mail. Although the Washington State Supreme Court has refused to classify as mail "anything other than postal matter carried by the United States Postal Service," Cont'l Sports Corp. v. Dep't of Labor and Indus., 128 Wash.2d 594, 910 P.2d 1284, 1288 (1996), we do not view this decision as precluding Samples' argument because it does not hold that all matter carried by the United States. Postal Service must be classified as mail. Samples points to section 3 of the statute, which permits an affidavit from the individual making or supervising the mailing to constitute prima facie evidence of the mailing, RCW § 48.18.290(3), to support his contention that the Washington State Legislature intended only for regular mail to qualify as "mailed" because there would be no need for an affidavit with certified mail which creates its own paper trail.
On the other hand, and, arguing for treating certified mail as satisfying the "mailed" requirement, Cornhusker contends that the Washington State Legislature intended certified mail to satisfy the notice requirements of RCW § 48.18.290. Section 2 of RCW § 48.18.290 describes how "mailing" shall be effected by "depositing [the notice] in a sealed envelope, directed to the addressee at his or her last address as known to the insurer or as shown by the insurer's records . . . in a letter depository of the United States post office." RCW § 48.18.290(2). Cornhusker argues that certified mail is deposited at a United States post office and is thereby an effective mailing under the statute. Section 2 of the statute also directs the insurer to "retain in its records any such item so mailed, together with its envelope, which was returned by the post office upon a failure to find, or deliver the mailing to, the addressee." Id. Cornhusker contends that this statutory requirement would be *987 rendered meaningless if actual receipt of a certified mailing was required to effect cancellation.
In further support of classifying notice sent by certified mail as "mailed" for purposes of RCW § 48.18.290, Washington state courts, in construing statutory schemes other than those governing insurance cancellation, have held that actual receipt of certified mail is not required to provide adequate notice. See In re Marriage of McLean, 132 Wash.2d 301, 937 P.2d 602, 603-05 (1997) (en banc) (holding, in a child support proceeding, that because the statute at issue did not require the return receipt be signed by the addressee as other Washington statutes did, "nor otherwise expressly indicate that actual delivery [was] required," it should not be interpreted to mandate actual receipt but merely proof of mailing via one of the specified methods); Baker v. Altmayer, 70 Wash.App. 188, 851 P.2d 1257, 1257-59 (1993) (concluding that even though the owners against whom a materialman's lien was sought never received a certified letter or hand-delivered notices that such letter was waiting to be claimed at the post office, the sender "complied with the literal requirements of the statute and [was] entitled to enforce its lien"), rev. denied, 122 Wash.2d 1024, 866 P.2d 39 (1993). But see State v. Bazan, 79 Wash.App. 723, 904 P.2d 1167, 1171 (1995) (holding that a criminal defendant was deprived of a speedy trial in violation of both Washington criminal procedure rules and due process when the sheriffs office sent him four notices by certified mail requiring him to appear for arraignment, all of which were returned "unclaimed," because no presumption of receipt exists where certified mail, instead of regular first-class mail, is used to send notice), rev. denied, 129 Wash.2d 1023, 919 P.2d 600 (1996). Unlike RCW § 48.18.290, the statutes involved in Marriage of McLean and Baker clearly classified certified mail as "mail," but these cases nevertheless hold, contrary to what Samples argues, that certified mail is effective to provide notice even where the mailing is not actually received.
Our uncertainty regarding the role of certified mail under RCW § 48.18.280 is heightened by the public policy considerations that underlie insurance regulations and the Washington State Supreme Court's holding that such policy considerations must be considered when interpreting statutes that regulate insurance policies. See Olivine Corp. v. United Capitol Ins. Co., 147 Wash.2d 148, 52 P.3d 494, 501 (2002) ("The purpose of the notice requirements in the insurance code [RCW § 48.18.290] is to enable the insuredsall of themto take appropriate action in the face of impending cancellation of an existing policy. . . . enabl[ing] the insured to adjust by either making the payments in default, obtaining other insurance protection, or preparing to proceed without insurance protection.") (citations omitted); see also Arborwood Idaho, L.L.C. v. City of Kennewick, 151 Wash.2d 359, 89 P.3d 217, 221 (2004) ("The court's fundamental objective in construing a statute is to ascertain and carry out the legislature's intent."). The Washington State Supreme Court has stated that insurance policies "abound with public policy considerations, one of which is that the risk-spreading theory of such policies should operate to afford to affected members of the public frequently innocent third personsthe maximum protection possible consonant with fairness to the insurer." Oregon Auto. Ins. Co. v. Salzberg, 85 Wash.2d 372, 535 P.2d 816, 819 (1975).
Moreover, a majority of other jurisdictions that have considered whether certified mail qualifies as mail for purposes of notice of insurance cancellation have held that notice sent by certified mail, when not *988 actually received, is insufficient to effect cancellation.[5]See, e.g., Conrad v. Universal Fire & Cas. Ins. Co., 686 N.E.2d 840, 842-43 (Ind.1997) (holding that where a policy's cancellation provision "neither required, authorized, nor prohibited the use of certified mail" but simply stated that proof of mailing was sufficient to establish notice, certified mail was not an effective form of notice because it requires someone to be present to sign for it and thus "is not reasonably calculated to ensure receipt" and "is not a sufficiently reliable means of notifying the insured of the need to find new coverage"); Larocque v. R.I. Joint Reinsurance Ass'n, 536 A.2d 529, 530, 532 (R.I.1988) (holding that under a Rhode Island statute requiring insurers to "give notice" of cancellation to insureds, actual receipt of such notice is required and "may be presumed by proof of an ordinary mailing" but not where an insurer, "by sending notice via certified mail instead of regular postage, increased the risk of nondelivery"); Fidelity & Cas. Co. of N.Y. v. Riley, 168 Md. 430, 178 A. 250, 253 (1935) (holding that where a policy's cancellation clause allowed for "written notice [to be either] delivered to the insured or mailed to his last address," sending cancellation notices by registered mail to two addresses on file for the insured constituted an attempt of actual delivery, which, because neither was actually received, "failed of its purpose" and so did not cancel the policy). But see Westmoreland v. Gen. Accident Fire & Life Assurance Corp., 144 Conn. 265, 129 A.2d 623, 626 (1957) ("When the provision in a policy is that notice by mail is sufficient, that provision is broad enough to cover all the kinds of mail which are commonly used to convey messages. Registered mail is just as much mail as ordinary mail. The sending of a notice of cancellation by registered mail is compliance with the requirement of the policy that the notice shall be mailed.").
Because the controlling question of state law is not entirely settled, we have concluded that an appropriate course of action is to certify this issue to the Washington State Supreme Court and request that it provide the dispositive answer.[6] If the Washington State Supreme Court concludes that notice sent by certified mail qualifies as "mailed" for purposes of RCW § 48.18.290 such that proof of mailing satisfies the notice requirements of the statute, we will affirm the district court on that basis. If, however, the Washington State Supreme Court determines that notice sent by certified mail does not qualify as "mailed" for purposes of RCW § 48.18.290, we will reverse the district court's order granting summary judgment to Cornhusker and denying Samples summary judgment.
ORDER
In light of our foregoing discussion, and because the answer to this question is "necessary to ascertain the local law of this state in order to dispose" of this appeal, RCW § 2.60.020, we respectfully certify to the Washington State Supreme Court the following question:
Does sending notice of cancellation by certified mail satisfy the "mailed" requirement of RCW § 48.18.290 (1997) and give sufficient notice of cancellation to comply with RCW § 48.18.290, even if *989 there is no proof that the cancellation letter was received by the insured?
We do not intend our framing of this question to restrict the Washington State Supreme Court's consideration of any issues that it determines are relevant. If the Washington State Supreme Court decides to consider the certified question, it may in its discretion reformulate the question. Broad v. Mannesmann Anlagenbau AG, 196 F.3d 1075, 1076 (9th Cir.1999),
If the Washington State Supreme Court accepts review of the certified question, we designate appellant Samples as the party to file the first brief pursuant to Washington Rule of Appellate Procedure ("WRAP") 16.16(e)(1).
The clerk of our court is hereby ordered to transmit forthwith to the Washington State Supreme Court, under official seal of the United States Court of Appeals for the Ninth Circuit, a copy of this order and all relevant briefs and excerpts of record pursuant to RCW §§ 2.60.010, 2.60.030 and WRAP 16.16.
Further proceedings in our court on the certified question are stayed pending the Washington State Supreme Court's decision whether it will accept review, and if so, receipt of the answer to the certified question. This case is withdrawn from submission until further order from this court. The panel will resume control and jurisdiction on the certified question upon receiving an answer to the certified question or upon the Washington State Supreme Court's decision to decline to answer the certified question. When the Washington State Supreme Court decides whether or not to accept the' certified question, the parties shall file a joint report informing this court of the decision. If the Washington State Supreme Court accepts the certified question, the parties shall file a joint status report every six months after the date of the acceptance, or more frequently if circumstances warrant.
It is so ORDERED.
NOTES
[*] The Honorable Lyle E. Strom, Senior United States District Judge for the District of Nebraska, sitting by designation.
[1] We conclude that whether Rockeries was insured by Cornhusker on October 22, 2004 depends entirely upon the answer provided by the Washington State Supreme Court; the answer to our certified question is "necessary . . . to dispose of" this appeal. Wash. Rev. Code § 2.60.020.
[2] RCW § 48.18.290 was amended in June 2006 to include the following language:
Subsection (1)(a)(i): The insurer must deliver or mail written notice of cancellation to the named insured . . .
Even though the statute no longer includes the words "actually delivered" it still distinguishes between delivering and mailing a notice of cancellation without either defining mail to include certified mail or instead requiring delivery of certified mail. Acceptance of certification on this issue by the Washington State Supreme Court will permit resolution of the case before us. Moreover, a ruling resolving this issue by the Washington State Supreme Court will also clarify the meaning of the word "mail" in the current version of the statute.
[3] Even though certification was not suggested by either party, we may sua sponte invoke the certification process. RCW § 2.60.030(1) ("Certificate procedure may be invoked by a federal court upon its own motion. . . ."); Parents Involved in Comty. Sch. v. Seattle Sch. Dist., No. 1, 294 F.3d 1085, 1086 (9th Cir. 2002) (certifying question sua sponte).
[4] However, Washington state courts have not always considered the inclusion of certified mail within the generic term "mail" as reading additional terms into a statute. E.g., Collins v. Lomas & Nettleton Co., 29 Wash.App. 415, 628 P.2d 855, 856 (1981). In Collins, in the context of a state rule of civil procedure with similar open-ended language to RCW § 48.18.290, the Washington State Court of Appeals held that "[w]e find no justification for precluding the use of certified mail absent express language to that effect." Id. (holding that the sender satisfied the requirements of the procedural rule and due process where the documents were sent by certified mail even though the mail was returned to sender).
[5] In jurisdictions where no statute is `at issue, the cases concerning insurance cancellation interpret the meaning of "mail" in the insurance policy itself.
[6] The Washington State Supreme Court has the discretion to decide whether to answer the certified question. Broad v. Mannesmann Anlagenbau AG, 141 Wash.2d 670, 10 P.3d 371, 374 (2000).
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173 F.3d 661
79 Fair Empl.Prac.Cas. (BNA) 1245,1999 O.S.H.D. (CCH) P 31,825Enoch GRIFFIN, Plaintiff-Appellant,v.PINKERTON'S, INC., a foreign corporation; Edward Rudenick,individually and as an employee of Pinkerton's, Inc.; JohnHoran, individually and as an employee of Pinkerton's, Inc.,Defendants-Appellees.
No. 98-2110.
United States Court of Appeals, Eighth Circuit.
Submitted Feb. 10, 1999.Filed April 8, 1999.
Stephen C. Fiebiger, Minneapolis, MN, argued, for Plaintiff-Appellant.
Paul C. Peterson, Minneapolis, MN, argued (Tamara J. Byram, on the brief), for Defendants-Appellees.
Before: McMILLIAN, JOHN R. GIBSON, and MURPHY, Circuit Judges.
MURPHY, Circuit Judge.
1
Enoch Griffin filed suit against Pinkerton's, Inc. (Pinkerton) and two of its employees, Edward Rudenick and John Horan.1 He claimed that racial harassment by Pinkerton employees violated his rights under 42 U.S.C. § 1981 and the Minnesota Human Rights Act (MHRA), Minn.Stat. § 363.03, and he also brought common law claims based on defamation, false imprisonment, negligent supervision and retention, and negligent infliction of emotional distress. The district court2 granted summary judgment in favor of Pinkerton and Rudenick on all claims. We affirm.
2
Griffin worked in the housekeeping department of St. Paul Ramsey Medical Center (the hospital) and Pinkerton provided security services for the hospital under contract. This action grew out of five particular encounters Griffin had with Pinkerton guards. The first occurred early on the morning of June 6, 1994 after Griffin left work. He noticed that guard Edward Rudenick had followed him into the parking ramp and asked why. Rudenick responded that there had been a lot of cars reported stolen recently. Griffin stated that he was not a thief, that he worked at the hospital, and that he was going to get his car. Two weeks later Griffin again saw Rudenick in the ramp; this time he was crouching between cars. Griffin asked Rudenick what he was doing and again said he was not a car thief. Rudenick left after answering, "I didn't know it was you."3
3
At the end of June, Griffin was in the hospital lobby waiting for his wife to pick him up. He had been there about 15 to 20 minutes when a Pinkerton guard arrived and asked what he was doing. The guard said there had been a report of "a suspicious black male" in the lobby. Griffin learned that Rudenick was the dispatcher and went to speak with him, but he was later unable to recall the substance of their conversation. He has not produced evidence of any other incidents involving Rudenick.
4
Griffin experienced what he felt was discriminatory treatment when he arrived at work in the evening in February 1995. He followed two white employees into the building. John Horan, the Pinkerton guard on duty, waved at them, greeted them, and let them proceed to the elevator, but he stopped Griffin and asked for his identification. It is not disputed that all hospital employees were required to carry photo identification and to present their identification to the security guard on duty if they entered the hospital after nine in the evening. Griffin was told about this rule when he was first hired, and a large sign by the door indicated that identification was required for entrance. When Griffin refused to produce his identification but proceeded on into the hospital, Horan followed him into an elevator where he physically restrained him. Griffin complained to Horan that he had not asked the two white employees for identification. Horan said he knew them and called Griffin a "smart ass." Horan requested assistance and four or five other guards responded. One of them was Horan's supervisor who said he knew Griffin and let Griffin leave. Griffin complained to his supervisor, Laurel Mattson, who circulated a memo regarding the incident to her supervisor, Frank Sabo, and the head of security for the hospital, Keith Davidson.
5
The final incident occurred after Griffin arrived for work on the evening of May 2, 1995. He noticed that there was a crowd at the door and that the guard was on the phone so he walked past the guard station. It is unclear whether Griffin's employee badge was visible at the time, but guard Dana Johnson pursued him down the hallway and into the housekeeping department, demanding identification. Griffin did not stop or produce identification. Johnson requested assistance, and Horan and other guards reported to housekeeping. Griffin accused Johnson of harassing him by requesting identification once he had already passed the security desk. Johnson said Griffin thought he was better than anyone else. Griffin's supervisor, Laurel Mattson, commented that three security guards were more than needed to deal with an employee who had not shown his identification. Horan said Griffin would lose his job over the incident, and Mattson testified in her deposition that Griffin had made threatening remarks to the guards. Griffin denies this.
6
After this incident the hospital began an investigation and suspended Griffin with pay. Griffin complained to his union representative about what had happened and that individual wrote the head of security about Griffin's encounters. Griffin read this memo aloud during a meeting with representatives from the hospital and the union. The hospital eventually reinstated Griffin but gave him a written warning. The warning stated that Griffin had been accused of using abusive language to a security officer and that the investigation had shown the accusation to be true. He was admonished that such behavior could not be tolerated and that further occurrences would result in more stringent disciplinary action.
7
Griffin pursued administrative relief against the hospital and filed this action in state court. His claim against the hospital has been settled, and he remains employed there. Appellees removed the case to federal district court on the basis of federal question jurisdiction. At the conclusion of discovery, Pinkerton and Rudenick filed their motion for summary judgment on all claims. The district court granted it, and Griffin appeals.4
8
We review a grant of summary judgment de novo. See Smith v. St. Louis Univ., 109 F.3d 1261, 1264 (8th Cir.1997). Summary judgment is appropriate if the movants have shown that there is no genuine issue of material fact and that they are entitled to judgment as a matter of law; in assessing the evidence we take the nonmovant's evidence as true, drawing all reasonable inferences in his favor. See Fed.R.Civ.P. 56(c); Kopp v. Samaritan Health Sys., Inc., 13 F.3d 264, 268-69 (8th Cir.1993).
9
Griffin claims that appellees violated his rights under 42 U.S.C. § 1981. This statute provides that:
10
(a) All persons ... shall have the same right ... to make and enforce contracts, to sue, be parties, give evidence, and to the full and equal benefit of all laws and proceedings for the security of persons and property as is enjoyed by white citizens, and shall be subject to like punishment, pains, penalties, taxes, licenses, and exactions of every kind, and to no other.
11
42 U.S.C.1981(a).
12
Section 1981(a) covers purely private acts of discrimination in the making and enforcement of contracts. See Morris v. Office Max, Inc., 89 F.3d 411, 413 (7th Cir.1996); Mahone v. Waddle, 564 F.2d 1018, 1029 (3d Cir.1977). Since the enactment of the 1991 Civil Rights Act, this provision has provided a basis for suits against employers for racial harassment on the job. See 42 U.S.C. § 1981(b); see also Winbush v. Iowa, 66 F.3d 1471, 1476 n. 7 (8th Cir.1995) (noting that 1991 amendments overruled Patterson v. McLean Credit Union, 491 U.S. 164, 109 S.Ct. 2363, 105 L.Ed.2d 132 (1989) which had held that the right to make and enforce contracts did not include right to be free of racial harassment). There are also several reported cases where § 1981 has been applied to discriminatory actions intended to interfere with the plaintiffs' contractual relations with third parties. See, e.g., Imagineering, Inc. v. Kiewit Pac. Co., 976 F.2d 1303, 1313 (9th Cir.1992) (intentional deprivation of opportunity to enter contracts with others because of race may state claim under § 1981); London v. Coopers & Lybrand, 644 F.2d 811, 818 (9th Cir .1981) (provision of adverse employment references with intent to discriminate on racial grounds establishes valid § 1981 claim).
13
In this case Griffin has not sued his employer or made claims that appellees were the employer's agents, and neither of them can be held liable under § 1981 for the existence of a hostile work environment. Griffin claims that the appellees interfered with his employment contract with the hospital in that he was suspended with pay after his interactions with the Pinkerton guards. He has not shown that Pinkerton itself was ever notified about the conduct of any of the guards or that any statements or actions of Rudenick were motivated by discriminatory animus and the desire to affect his employment. Horan's statement that Griffin would lose his job cannot be imputed to either Pinkerton or Rudenick. As a matter of law he has not made out a claim against appellees under § 1981.
14
Griffin also has not shown that he was discriminated against because of his race. There is no dispute that there were real security concerns at the hospital and its parking area and that employees were required to show identification when entering the hospital after nine in the evening. No racially hostile comments were made to Griffin, and he has not shown that he suffered offensive conduct that similarly situated white counterparts did not. See Kopp, 13 F.3d at 269. The five incidents were also neither severe nor pervasive enough to have established a racially hostile work environment. See Cram v. Lamson & Sessions Co., 49 F.3d 466, 474-75 (8th Cir.1995), Johnson v. Bunny Bread Co., 646 F.2d 1250, 1257 (8th Cir.1981). Finally, Griffin failed to show that Pinkerton had actual or constructive knowledge of a racially hostile environment. See Whitmore v. O'Connor Management, Inc., 156 F.3d 796, 800 (8th Cir.1998); Hall v. Gus Const. Co., Inc., 842 F.2d 1010, 1015 (8th Cir.1988).
15
Griffin claims that Pinkerton violated the MHRA because it had notice of racial harassment by its employees and failed to take corrective action. The MHRA protects against unfair employment practices by employers, labor organizations and employment agencies. See Minn.Stat. § 363.03(1). Griffin had none of these relationships with Pinkerton. The MHRA also prohibits others from aiding or abetting forbidden employment practices. See Minn.Stat. § 363.03(6). Griffin has not produced evidence showing that the hospital violated state law so his claims based on accessory liability for Pinkerton or Rudenick necessarily fail.
16
Griffin's other state law claims are also without merit. He argues that Pinkerton defamed him because Rudenick's statement to him in the parking ramp implied that he was a car thief and that Horan's report included statements that Griffin had made threats. He has, however, failed to show publication of a false statement tending to harm his reputation. See Lewis v. Equitable Life Assurance Soc'y, 389 N.W.2d 876, 886 (Minn.1986); Stuempges v. Parke, Davis & Co., 297 N.W.2d 252, 255 (Minn.1980). He has not shown that any third party read Horan's report, and he himself was responsible for voluntarily repeating Rudenick's statements. See Lewis, 389 N.W.2d at 888. His claim that he was falsely imprisoned during the elevator incident fails because he knew what the guards were seeking and he could have produced his identification. See Peterson v. Sorlien, 299 N.W.2d 123, 128 (Minn.1980) (awareness of reasonable non-dangerous means of escape renders restriction incomplete); Restatement (Second) of Torts § 36 (1965). Griffin's failure to show Pinkerton had actual or constructive notice of inappropriate conduct by its employees is fatal to both the negligent supervision and negligent retention claims. See Bruchas v. Preventive Care, Inc., 553 N.W.2d 440, 442-43 (Minn.Ct.App.1996); Kresko v. Rulli, 432 N.W.2d 764, 769 (Minn.Ct.App.1988).5 Finally, Griffin's negligent infliction of emotional distress claim fails because he has neither satisfied the zone of danger test, see Stadler v. Cross, 295 N.W.2d 552 (Minn.1980), nor shown that defamation or other willful, wanton, or malicious conduct exempts him from proving the threat of physical harm, see Bohdan v. Alltool Mfg. Co., 411 N.W.2d 902, 907 (Minn.Ct.App.1987).
17
Accordingly, we affirm the judgment of the district court.
1
Horan was never properly served and the district court dismissed the claims against him. That dismissal is not at issue on appeal
2
The Honorable Richard H. Kyle, United States District Judge for the District of Minnesota
3
In his deposition Griffin testified inconsistently about whether Rudenick made this statement during their first or second encounter in the ramp
4
In its written memorandum the district court commented that, "Ordinarily, the court does not weigh facts or evaluate ... credibility" on a motion for summary judgment. It has been suggested that this statement shows the district court did not use the proper standard in making its decision, but our review of the record does not indicate that it failed to apply the correct standard despite this passing remark
5
Griffin has presented evidence purporting to show that Pinkerton knew guard Dana Johnson had psychological problems and that it failed to take certain steps in screening its employees. He has not shown, any connection between these facts and the racial harassment he alleges, however
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21 F.3d 1118
NOTICE: Ninth Circuit Rule 36-3 provides that dispositions other than opinions or orders designated for publication are not precedential and should not be cited except when relevant under the doctrines of law of the case, res judicata, or collateral estoppel.UNITED STATES of America, Plaintiff-Appellee,v.Steve Daniel PALASTY, Defendant-Appellant.
No. 92-30390.
United States Court of Appeals, Ninth Circuit.
Submitted Dec. 16, 1993.*Decided Feb. 25, 1994.
Before: BROWNING, NORRIS and O'SCANNLAIN, Circuit Judges.
1
MEMORANDUM**
2
Steven Palasty was convicted of armed bank robbery under 18 U.S.C. Sec. 2113 and of use of a firearm in connection with a violent felony under 18 U.S.C. Sec. 924(c). The district court sentenced Palasty to 109 months imprisonment for the armed robbery count and to 60 months for the firearm count, for a total of 169 months. Palasty appeals both his conviction and his sentence. We affirm.
3
* Palasty asserts that he should receive a new trial because he was denied effective assistance of counsel in violation of the Sixth Amendment. Although Palasty has raised his ineffective assistance claim on direct appeal rather than pursuing a collateral proceeding under 28 U.S.C. Sec. 2255, we will consider it because the record is sufficiently complete. United States v. Molina, 934 F.2d 1440, 1446 (9th Cir.1991). To prevail, Palasty must show (1) that specific acts or omissions of his counsel fell below a standard of professional reasonableness, and (2) that these acts or omissions were prejudicial. Strickland v. Washington, 466 U.S. 668, 693-94 (1984). To show prejudice, Palasty must demonstrate a reasonable probability that, absent an error or omission, the factfinder would have had a reasonable doubt respecting his guilt. Id. at 695.
4
None of Palasty's claims of ineffectiveness have merit. First, although Palasty contends that his trial counsel failed to give proper notice to the prosecution of alibi witnesses whom he intended to call at trial, the district court nevertheless gave those witnesses the opportunity to testify. Second, Palasty asserts that his trial counsel violated a court order requiring him to file jury instructions, a voir dire and a trial brief. However, the district court identified jury instructions that it believed were necessary and then added them; and Palasty has not identified any jury instructions that his trial counsel should have tendered but did not. Palasty's claim regarding the voir dire suffers from the same defect: he has not identified any voir dire testimony that indicates that any jurors held any improper biases. See Paradis v. Arave, 954 F.2d 1483, 1491 (9th Cir.1992), vacated on other grounds, 113 S.Ct. 1837 (1993). There also is no evidence that the trial attorney's failure to file a trial brief prejudiced Palasty.
5
Third, Palasty argues that his trial counsel "[m]ade a perfunctory FRCRP 29 motion, which suggests that counsel wasn't prepared for the defense of his case." Palasty also makes the related claim that his attorney failed to renew this motion after both the prosecution and the defense had rested. A district court considering a motion for acquittal under Federal Rule of Criminal Procedure 29 follows the same standard as an appellate court weighing the sufficiency of the evidence for a conviction. United States v. Merriweather, 777 F.2d 503, 507 (9th Cir.1985). The evidence adduced at trial is viewed in the light most favorable to the prosecution, and an acquittal should be ordered only if no rational jury could have found sufficient evidence to convict Palasty. Id.; see also United States v. Heuer, 916 F.2d 1457, 1461 (9th Cir.1990). As discussed below, sufficient evidence existed to convict Palasty.
6
Finally, Palasty observes that his trial counsel could not recall his name during trial. This misstatement was made outside the presence of the jury and did not confuse the trial judge. Palasty thus suffered no prejudice.
II
7
Palasty contends that there was insufficient evidence to convict him. We reject this claim.
8
The government adduced sufficient evidence at trial to convict under 18 U.S.C. Sec. 2113(a). Evidence identified Palasty as the person who held up the Seafirst Bank. Palasty's fingerprints were found on the license plate of the getaway truck, shell casings found in his house were identified as having been fired from a gun used during the robbery, two radios of the same make as those used in the robbery were missing from Palasty's employer, and Steve Mattson confessed that he and Palasty had committed the robbery. In addition, the bank was federally insured.
9
Sufficient evidence also exists to satisfy the elements required for a conviction under section 924(c). As discussed above, evidence proved that Palasty committed the robbery, a violent felony. Further, there is evidence that Palasty brandished his gun several times during the robbery to threaten bank employees and shot at a bystander during his getaway.
III
10
Palasty asserts that the district court improperly enhanced his sentence. Palasty had written two letters to Steve Mattson, urging him not to testify. In one letter Palasty wrote, "[d]o you know what happens to snitchs in prison, no one's that tuff man." Because threatening a witness in order to silence him or her at trial is an obstruction of justice, the enhancement under section 3C1.1 was warranted.1 United States v. Jackson, 974 F.2d 104, 106 (9th Cir.1992).
IV
11
Palasty argues that the prosecutor improperly commented on his invocation of his Fifth Amendment right not to testify. However, the government did not comment on Palasty's silence; it remarked only on the reasons why Mattson agreed to testify. Since the commentary was made in order to rebut Palasty's effort to impeach Mattson's credibility, it does not require reversal because it was neither manifestly intended to call attention to, nor naturally and necessarily viewed as a comment about, Palasty's refusal to testify. United States v. Castillo, 866 F.2d 1071, 1083 (9th Cir.1988); see, e.g., United States v. Davis, 960 F.2d 820, 828-29 (9th Cir.1992). In addition, even if the commentary had been directed at Palasty rather than Mattson, it does not require reversal because it was isolated rather than extensive, and the prosecution did not suggest that an inference of guilt should be inferred from Palasty's silence. See United States v. Reyes, 966 F.2d 508, 509 (9th Cir.1992).
12
AFFIRMED.
*
The panel unanimously finds this case suitable for submission on the record and briefs and without oral argument. Fed.R.App.P. 34(a), Ninth Circuit R. 34-4
**
This disposition is not appropriate for publication and may not be cited to or by the courts of this circuit except as provided by Ninth Circuit R. 36-3
1
Palasty argues that application note 1 to Sec. 3C1.1 requires the court to evaluate the facts underlying the enhancement "in a light most favorable to the defendant." However, this statement in the application note referred only to how a court should construe allegedly false testimony or statements by a defendant. U.S.S.C., Guidelines Manual Sec. 3C1.1 (n. 1). The note thus is entirely irrelevant to Palasty's enhancement, which did not arise from false testimony
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F I L E D
United States Court of Appeals
Tenth Circuit
UNITED STATES COURT OF APPEALS
JAN 9 2001
TENTH CIRCUIT
PATRICK FISHER
Clerk
MICHAEL READ,
Plaintiff-Appellant,
v. No. 99-5058
(D.C. No-98-CV-937-H)
(N.D. Okla.)
THE HONORABLE ALLEN KLEIN,
Associate District Judge; THE
HONORABLE RUSSELL P. HASS,
Associate District Judge; CHUCK
RICHARDSON, District Attorney;
SHAWNA READ, now known as
SHAWNA DUNN; and SHANNON
DAVIS,
Defendants-Appellees.
ORDER AND JUDGMENT*
Before HENRY and BRISCOE Circuit Judges, and SHADUR, District Judge.**
*
This order and judgment is not binding precedent, except under the doctrines of
law of the case, res judicata, and collateral estoppel. The court generally disfavors the
citation of orders and judgments; nevertheless, an order and judgment may be cited under
the terms and conditions of 10th Cir. R. 36.3.
**
The Honorable Milton Shadur, Senior District Judge for the Northern District of
Illinois, sitting by designation.
Michael Read appeals the district court’s dismissal of his claims asserted pursuant
to 42 U.S.C. § 1983 against two state court judges, his ex-wife, and his ex-wife’s lawyer.
In the district court proceedings, Mr. Read challenged a divorce decree entered by default
by the Tulsa County District Court (hereafter “the Tulsa County Court”). He maintained
that the decree was entered after service by publication and thereby violated his due
process rights. For the reasons set forth below, we conclude that Mr. Read’s claims
against the defendant state court judges are barred by the Rooker-Feldman doctrine. See
District of Columbia Court of Appeals v. Feldman, 460 U.S. 462, 476 (1983); Rooker v.
Fidelity Trust Co., 263 U.S. 413, 415 (1923). We further conclude that the district court
properly dismissed Mr. Read’s claim against his ex-wife and her lawyer on the ground
that they are not state actors.
I. BACKGROUND
In February 1990, the defendant Shawna Dunn filed a petition for divorce from
Mr. Read in the Tulsa County Court. Ms. Dunn served Mr. Read by publication, and the
court entered a divorce decree on April 30, 1990. The decree determined that service by
publication was proper, that Mr. Read was the father of the parties’ child, and that he was
responsible for child support.
Mr. Read failed to comply with the child support obligations set forth in the
2
decree. In December 1996, Ms. Dunn filed an application for contempt in the Tulsa
County Court, alleging that Mr. Read was $32,055.40 in arrears. Mr. Read moved to
dismiss the contempt application, asserting that he had not been properly served in the
divorce proceedings. The Tulsa County Court denied Mr. Read’s motion, and he then
filed a Petition to Vacate Void Judgment, which the court also denied.
In April 1997, the Tulsa County Court held a non-jury trial on this first contempt
charge. It granted judgment to Ms. Dunn for $32,659.20. However, the court withheld a
finding on the issue of whether Mr. Read should be held in contempt for having failed to
pay child support. Aple’s Supp. App. at 34, ¶ 4.
Mr. Read then mounted two challenges to the contempt ruling: (1) he appealed the
$32,659.20 judgment to the Oklahoma Supreme Court; and (2) he filed a petition for a
writ of prohibition with the same court. The Oklahoma Supreme Court entered a writ
staying contempt proceedings pending the resolution of the appeal, and it assigned the
appeal of the contempt ruling to the Oklahoma Court of Appeals. That court affirmed the
Tulsa County Court’s contempt ruling and denied Mr. Read’s petition for rehearing. The
Oklahoma Supreme Court then denied Mr. Read’s petition for a writ of certiorari.
Next, Mr. Read filed a chapter 13 bankruptcy petition and initiated an adversary
proceeding requesting the bankruptcy court to vacate the divorce decree. The bankruptcy
court dismissed the adversary proceeding in October 1998.
Subsequently, the Tulsa County Court resumed proceedings on Ms. Dunn’s
3
application to hold Mr. Read in contempt. In December 1998, it found Mr. Read in
indirect contempt for failing to pay child support through April 28, 1997, and it sentenced
him to six months in the Tulsa County jail. The court set a purge fee of $3,000, which
Mr. Read paid.
Mr. Read then filed the instant § 1983 action against the two state court judges, the
Tulsa County prosecutor, Ms. Dunn, and Shannon Davis (Ms. Dunn’s lawyer in the
divorce proceedings). He sought a temporary restraining order barring enforcement of
the divorce decree as well as damages against Ms. Dunn and Shannon Davis. The federal
district court denied application for the restraining order and dismissed the case,
reasoning that the defendant judges and the defendant prosecutor were entitled to absolute
immunity and that Ms. Dunn and Shannon Davis were not state actors and thus not
subject to § 1983 liability.
Mr. Read proceeded to file another petition for a writ of prohibition in the
Oklahoma Supreme Court. He again requested the court to enter an order barring the
collection of child support pursuant to the 1990 decree. The Oklahoma Supreme Court
again denied Mr. Read’s request.
Ms. Dunn then filed a second application for contempt in the Tulsa County Court,
asserting that Mr. Read had failed to pay child support from May 1997 through February
1999. In March 1999, the court conducted a jury trial on this second contempt charge. It
again found Mr. Read guilty of indirect contempt of court and sentenced him to six
4
months’ incarceration in the Tulsa County jail. Mr. Read refused to pay the $9,200 purge
fee and served his sentence. He challenged his confinement in a petition for a writ of
habeas corpus, which the Oklahoma Supreme Court denied. Mr. Read also filed an
appeal of the March 1999 contempt ruling.
In a July 2000 ruling on the appeal of the second contempt proceeding, the
Oklahoma Court of Appeals agreed with Mr. Read that the issuance of the 1990 divorce
decree had been improper. See Read v. Read, No. 92,930 (Okla. Ct. App. July 18, 2000).
The court observed that the record in the divorce proceeding “does not reflect any entry
concerning the issuance of summons or any return reporting an unsuccessful attempt to
serve summons.” Id., slip op. at 4. The record also did not reflect “any entry concerning
an attempt to serve [Mr. Read] by mail at the ‘last known address’ set out in the petition
or any other attempted and unsuccessful service by mail.” Id. The court invoked an
Oklahoma Supreme Court decision holding that “‘[w]here names and addresses of
adverse parties are known . . . notice of pending proceedings by publication service alone,
is not sufficient to satisfy the requirements of due process under federal or Oklahoma
constitutions.’” Id. (quoting Johnson v. McDaniel, 569 P.2d 977, 981 (Okla. 1977)).
Thus, the court concluded, “we agree with [Mr. Read] that the decree of divorce by
default herein must be set aside because the trial court had no jurisdiction over [Mr.
Read] by reason of [Ms. Dunn’s] failure to comply with the mandates of due process for
service by publication.” Id. at 5 (emphasis added). It remanded the case to the trial court,
5
“with directions to reopen the divorce proceeding to allow [Mr.] Read to be heard on the
merits of any issue bearing on his liability for child support.” Id. at 8.1
II. DISCUSSION
Mr. Read first challenges the district court’s conclusion that the defendant state
court judges are entitled to immunity from his claim seeking an injunction prohibiting
enforcement of the 1990 divorce decree. See Aplt’s Br. at 2. He argues that, because the
judges acted without jurisdiction in enforcing the decree, they are not entitled to
immunity. Mr. Read also argues that, because Ms. Dunn and Shannon Davis are state
actors, the district court also erred in dismissing his due process claim against them. We
review de novo the legal conclusions on which the district court based its dismissal of the
complaint. See Sutton v. Utah State Sch. for the Deaf & Blind, 173 F.3d 1226, 1236
(10th Cir. 1999).
A. Claim for Injunctive Relief Against the State Court Judges
Mr. Read’s claim for injunctive relief against the state court judges constitutes a
challenge to the validity of the Tulsa County Court’s April 1990 divorce decree. His
complaint in this case seeks a judgment “adjudicating that said default judgment is void
and that [the defendants] are barred from taking any action to enforce said judgment.”
1
The court also explained that a decision about the $3,000 purge fee should be
held in abeyance until the trial court revisited the issues bearing on child support. See
Read v. Read, No. 92,930, slip op. at 9 n.2 (Okla Ct. App. July 18, 2000).
6
Aple’s Supp App. at 5 (Plaintiff’s Complaint, filed Dec. 10, 1998).
Under the Rooker-Feldman doctrine, federal district courts lack jurisdiction to
review state court judgments. Facio v Jones, 929 F.2d 541, 544 (10th Cir. 1991) (noting
that “[w]here a constitutional issue could have been reviewed on direct appeal by the state
appellate courts, a litigant may not seek to reverse or modify the state court judgment by
bringing a constitutional claim under 42 U.S.C. § 1983”) (internal quotation marks
omitted); Anderson v. State of Colorado, 793 F.2d 262, 264 (10th Cir. 1986) (noting that
federal district courts do no have jurisdiction to review final state court judgments in
judicial proceedings). The losing party in a state court proceeding is generally barred
“from seeking what in substance would be appellate review of the state judgment in a
United States district court, based on the losing party’s claim that the state judgment itself
violates the loser’s federal rights.” Johnson v. De Grandy, 512 U.S. 997, 1005-06
(1994). Review of the state court judgment must proceed to the state’s highest court and
then to the United States Supreme Court pursuant to 28 U.S.C. § 1257. See Facio, 929
F.2d at 543.
The Rooker-Feldman doctrine bars not only direct review of state court judgments
in federal court but also consideration of claims that are “inextricably intertwined” with
the state court judgment. Id. (citing Feldman, 460 U.S. at 483-84 n.16). However, as
this circuit has explained, “if the purpose of a federal action is separable from and
collateral to a state court judgment, then the claim is not inextricably intertwined merely
7
because the action necessitates some consideration of the merits of the state court
judgment.” Kiowa Indian Tribe of Okla. v. Hoover, 150 F.3d 1163, 1170 (10th Cir.
1998) (internal quotation marks omitted). Determining whether a federal claim is
“inextricably intertwined” with the state court judgment may be difficult. See Young v.
Murphy, 90 F.3d 1225, 1231 (7th Cir. 1996). “The fundamental and appropriate question
to ask is whether the injury alleged by the federal plaintiff resulted from the state court
judgment itself or is distinct from that judgment.” Garry v. Geils, 82 F.3d 1362, 1365
(7th Cir. 1996).
Here, Mr. Read’s claim against the state court judges directly challenges the state
court divorce decree. Notably, the claim repeats arguments that he raised in his various
state court challenges to the Tulsa County Court’s divorce decree. Furthermore, the
Oklahoma Court of Appeals’s July 2000 ruling demonstrates the availability of a state
court remedy for the alleged deficiencies in the entry of that decree. Any further review
of the state court decision must come from the Oklahoma Supreme Court and the United
States Supreme Court rather than the federal district court. See Facio, 929 F.2d at 543.
Applying the Rooker-Feldman doctrine, we therefore conclude that we lack jurisdiction
over Mr. Read’s claim against the state court judges.
B. Claim Against Ms. Dunn and Shannon Davis
Mr. Read’s claim for damages against Ms. Dunn and Shannon Davis involves
8
somewhat different considerations. As to that claim, he alleges that Ms. Dunn “knew the
last known address of [Mr. Read] and . . . knew the address of his parents and a brother,
but did not mail notice to [Mr. Read] at his last known address, nor to his parents’ known
address, nor to his brother[’s] known address, thereby depriving [Mr. Read] of his right to
due process.” Aple’s Supp App. at 2 (Plaintiff’s Complaint, filed Dec. 10, 1998). As
Judge Posner has observed, there are limitations on the scope of the Rooker-Feldman
doctrine when a plaintiff alleges that state procedures have been corrupted:
Were [the plaintiff] merely claiming that the decision of the
state court was incorrect, even that it denied him some
constitutional right, the [Rooker-Feldman] doctrine would
indeed bar his claim. But if he claims, as he does, that people
involved in the decision violated some independent right of his,
such as the right (if it is a right) to be judged by a tribunal that
is uncontaminated by politics, then he can, without being
blocked by the Rooker-Feldman doctrine, sue to vindicate that
right and show as part of his claim for damages that the
violation caused the decision to be adverse to him and thus did
him harm. . . . Otherwise there would be no federal remedy for
a violation of federal rights whenever the violator so far
succeeded in corrupting the state judicial process as to obtain a
favorable judgment, as alleged in cases such as Dennis v.
Sparks, [449 U.S. 24 (1980)], and Casa Marie, Inc. v. Superior
Court, [988 F.2d 252, 259 (1st Cir.1993)]. This result would be
inconsistent with cases in which, for example, police officers are
sued under 42 U.S.C. § 1983 for having fabricated evidence
that resulted in the plaintiff’s being convicted in a state court.
Nesses v. Shepard, 68 F.3d 1003, 1005 (7th Cir. 1995). However, we need not resolve
the “difficult question,” id. at 1004, of whether the Rooker-Feldman doctrine applies to
these claims because the defendants Ms. Dunn and Shannon Davis are entitled to
9
judgment in their favor for a different reason—because they are not state actors.
In order to prevail on a § 1983 claim alleging a deprivation of constitutional rights,
a plaintiff must show that he was injured as a result of state action. Lugar v. Edmondson
Oil Co., Inc., 457 U.S. 922, 935 (1982); Gallagher v. Neil Young Freedom Concert, 49
F.3d 1442, 1447 (10th Cir. 1995). Thus, private conduct, “no matter how discriminatory
or wrongful,” may not be redressed by a § 1983 claim. American Mfrs. Mut. Ins. Co. v.
Sullivan, 526 U.S. 40, 50 (1999) (internal quotation marks omitted).
The Supreme Court “has taken a flexible approach to the state action doctrine,
applying a variety of tests to the facts of each case.” Gallagher, 49 F.3d at 1447. Thus, a
party may be considered a state actor if: (1) “‘there is a sufficiently close nexus’ between
the government and the challenged conduct such that the conduct ‘may be fairly treated as
that of the State itself[,]’” see id. at 1448 (quoting Jackson v. Metropolitan Edison Co.,
419 U.S. 345, 351(1974)); (2) the state “‘has so far insinuated itself into a position of
interdependence’ with a private party that ‘it must be recognized as a joint participant in
the challenged activity[,]’” id. at 1451 (quoting Burton v. Wilmington Parking Authority,
365 U.S. 715, 725 (1961)); (3) a private party is a “‘willful participant in joint action with
the State or its agents[,]’” id. at 1453 (quoting Dennis v. Sparks, 449 U.S. 24, 27 (1980));
and (4) the state delegates to the private party a function “‘traditionally exclusively
reserved to the State[,]’” id. at 1456 (quoting Jackson, 419 U.S. at 352).
In this case, Mr. Read’s argument that Ms. Dunn and Shannon Davis are state
10
actors is based primarily on the Supreme Court’s decision in Lugar v. Edmondson Oil
Company, 457 U.S. 922 (1982). There, the Court considered a due process claim brought
by a debtor against a private company that had initiated prejudgment attachment
proceedings. Under the Virginia procedure at issue, the private company filed an ex parte
petition alleging that the debtor might be disposing of property to defeat his creditors.
Acting on that petition, the clerk of the state court issued a writ of attachment, and the
county sheriff executed the writ. The Court rejected the conclusion of a lower court that
“‘joint participation’ required something more than invoking the aid of state officials to
take advantage of state-created attachment procedures.” Id. at 942. It explained that
“[w]hatever may be true in other contexts, this is sufficient [i.e. invoking the aid of state
officials to take advantage of state-created attachment procedures] when the State has
created a system whereby state officials will attach property on the ex parte application of
one party to a private dispute.” Id. Mr. Read attempts an analogy to the facts of that case,
maintaining that, like the private corporation in Lugar, Ms. Dunn and Shannon Davis
obtained the aid of state officials (the defendant judges) in order to obtain the divorce
decree and the various subsequent orders enforcing it.
Although Lugar adopts an expansive test for state action, the decision “is carefully
limited to prejudgment seizures of property.” 1 Martin A. Schwartz § John E. Kirklin,
Section 1983 Litigation: Claims, Defenses, and Fees, § 5.14, at 291 (2d ed. 1998). In
other contexts, a private party’s “mere invocation of state legal procedures” does not
11
constitute joint participation and thus is not state action. Id. Accordingly, this circuit and
several others have held that private parties to litigation and their lawyers are not state
actors. See Barnard v. Young, 720 F.2d 1188, 1189 (10th Cir. 1983) (concluding that
application of Lugar “does not change the vast weight of authority that private attorneys,
by virtue of being officers of the court, do not act under color of state law within the
meaning of section 1983”); Lindley v. Amoco Prod. Co., 639 F.2d 671 (10th Cir. 1981)
(concluding that an attorney and a corporation were not state actors when they obtained
an order from a court allowing the attorney to enter the plaintiff’s home to seal files);
Torres v. First State Bank of Sierra County, 588 F.2d 1322, 1326-27 (10th Cir. 1978)
(“We do not think that the ‘color of law’ reference in § 1983 was intended to encompass a
case such as this one, where the only infirmities are the excesses of the court itself,
subject to immediate modification by a court having jurisdiction over the parties, and
subject to the normal processes of appeal.”); see also Catz v. Chalker, 142 F.3d 279, 289
(6th Cir. 1998) (concluding that an attorney was not a state actor); Hoia v. Vo, 935 F.2d
308, 313 (D.C. Cir. 1991) (affirming dismissal of a § 1983 claim against a private party
and a lawyer and noting that “[i]t is well established that mere recourse to state or local
court procedures does not by itself constitute ‘joint activity’ with the state sufficient to
subject a private party to liability under section 1983”).
Significantly, Mr. Read has not cited any authority other than Lugar for the
proposition that parties to litigation and their lawyers may become state actors merely by
12
obtaining orders from a state court judge. Such a rule would greatly expand the universe
of state actors, and we decline to adopt such a new approach here. We therefore conclude
that the district court properly dismissed Mr. Read’s claims against Ms. Dunn and Ms.
Davis.
III. CONCLUSION
As to Mr. Read’s claims against state court Judges Klein and Hass, we conclude that
the district court lacked jurisdiction pursuant to the Rooker-Feldman doctrine. We
therefore VACATE the district court’s judgment as to that claim and remand the case to
the district court with instructions to dismiss the claim for lack of jurisdiction As to Mr.
Read’s claims against Ms. Dunn and Shannon Davis, we AFFIRM the district court’s
dismissal for failure to state a claim upon which relief can be granted.
Entered for the Court,
Robert H. Henry
Circuit Judge
13
No. 99-5058, Read v. Klein
BRISCOE, Circuit Judge, concurring:
I concur in the majority’s ruling that the Rooker-Feldman doctrine
precludes further litigation against Judge Klein and Judge Hass in federal court. I
write separately because I disagree with the majority’s decision not to decide
whether to apply the Rooker-Feldman doctrine to the claims against Shawna Dunn
and Shannon Davis. In my view, the Rooker-Feldman doctrine clearly applies to
these claims and, as jurisdiction is a threshold issue, I would decide the case on
Rooker-Feldman grounds.
The Rooker-Feldman doctrine bars consideration by federal courts of
claims that are “inextricably intertwined” with state court judgments. Facio v.
Jones, 929 F.2d 541, 543 (10th Cir. 1991). Evaluating Read’s claim for damages
against Dunn and Davis would require the federal district court to determine
whether the state court had entered a default judgment against Read without
adequate notice. The federal court would thus be evaluating whether the state
court’s decision that notice was proper was correct. This is the sort of collateral
review of state court decisions that is barred by the Rooker-Feldman doctrine.
See Anderson v. Colorado, 793 F.2d 262, 264 (10th Cir. 1986). I would,
therefore, also dismiss the claims against Dunn and Davis for lack of jurisdiction.
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833 F.2d 1023
Unpublished DispositionNOTICE: Federal Circuit Local Rule 47.8(b) states that opinions and orders which are designated as not citable as precedent shall not be employed or cited as precedent. This does not preclude assertion of issues of claim preclusion, issue preclusion, judicial estoppel, law of the case or the like based on a decision of the Court rendered in a nonprecedential opinion or order.In re Stuart OCKMAN, Appellant.
No. 87-1336.
United States Court of Appeals, Federal Circuit.
Oct. 19, 1987.
Before DAVIS, Circuit Judge, NICHOLS, Senior Circuit Judge, and MAYER, Circuit Judge.
DAVIS, Circuit Judge.
DECISION
1
The decision of the United States Patent and Trademark Office Board of Patent Appeals and Interferences (Board), sustaining the rejection of all claims remaining in the application on the ground that they are all directed to nonpatentable subject matter (Serial No. 767,443, which is a continuation-in-part of Nos. 559,706 and 641,160), is affirmed.
OPINION
2
The rejected claims are directed to plans or drawings of the type used in construction projects. The structural features shown in such drawings are illustrated with varying degrees of "boldness" by different colors, by different dashed or dotted lines, by shading, etc., with such degrees being indicative of scheduled completion time, budgetary restraints or other construction stages or factors. On viewing the drawings in comparison with the actual construction work completed at a given time, deviations from the planned schedule may readily be perceived. Some of the claims are directed to a method of making the depiction; others the depiction itself; and still others a method of using the depiction.
3
The Board correctly determined that all the claims should be rejected as outside the judicial construction of 35 U.S.C. Sec. 101 ("Invention patentable"). Insofar as the claims involve no more than printed matter, gathering data and forwarding information to others, those claims are non-statutory under Sec. 101. In re Miller, 418 F.2d 1392, 1396, 164 USPQ 46, 49 (CCPA 1969); In re Russell, 48 F.2d 668, 9 USPQ 181 (CCPA 1931). The claimed method of making the depiction falls under In re McKee, 64 F.2d 379, 17 USPQ 293 (CCPA 1933) (method of marking meat products), In re Rice, 132 F.2d 140, 56 USPQ 173 (CCPA 1942) (method of writing sheet music), and Kierferle v. Kingsland, 79 F.Supp. 700, 78 USPQ 60, (D.D.C.1948), aff'd, 178 F.2d 728, 83 USPQ 442 (D.C.Cir.1949) (differently colored musical notes indicating different intensities). As for the process claims, Rice held that its principles are "equally applicable to method and article claims," 132 F.2d at 141, 56 USPQ at 174.1 The underlying principle applicable here is that, to be patentable, the claimed method invention must transform or reduce a thing or article to a different state or thing--not simply convey or display information to another person. See Diamond v. Diehr, 450 U.S. 175, 184, 192, 209 USPQ 1, 7, 10. The latter is the sole objective of all the claims at issue, including the depiction and use claims which show no functional relationship whatever to the substrate.
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UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 04-7890
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
versus
RYAN O’NEIL LITTLE,
Defendant - Appellant.
Appeal from the United States District Court for the Western
District of North Carolina, at Charlotte. Richard L. Voorhees,
District Judge. (CR-95-105-V; CA-01-379)
Submitted: February 23, 2005 Decided: March 11, 2005
Before WILLIAMS, GREGORY, and SHEDD, Circuit Judges.
Dismissed by unpublished per curiam opinion.
Ryan O’Neil Little, Appellant Pro Se. Robert James Conrad, Jr.,
OFFICE OF THE UNITED STATES ATTORNEY, Charlotte, North Carolina,
for Appellee.
Unpublished opinions are not binding precedent in this circuit.
See Local Rule 36(c).
PER CURIAM:
Ryan O’Neil Little, a federal prisoner, seeks to appeal
the district court’s order denying reconsideration under Fed. R.
Civ. P. 60(b) of the court’s prior order denying his 28 U.S.C.
§ 2255 (2000) motion. The order is not appealable unless a circuit
justice or judge issues a certificate of appealability. 28 U.S.C.
§ 2253(c)(1) (2000); see Reid v. Angelone, 369 F.3d 363, 368-69,
374 n.7 (4th Cir. 2004). A certificate of appealability will not
issue absent “a substantial showing of the denial of a
constitutional right.” 28 U.S.C. § 2253(c)(2) (2000). A prisoner
satisfies this standard by demonstrating that reasonable jurists
would find that the district court’s assessment of his
constitutional claims is debatable and that any dispositive
procedural rulings by the district court are also debatable or
wrong. See Miller-El v. Cockrell, 537 U.S. 322, 336-38 (2003);
Slack v. McDaniel, 529 U.S. 473, 484 (2000); Rose v. Lee, 252 F.3d
676, 683 (4th Cir. 2001). We have independently reviewed the
record and conclude that Little has not made the requisite showing.
Accordingly, we deny a certificate of appealability and dismiss the
appeal. We dispense with oral argument because the facts and legal
contentions are adequately presented in the materials before the
court and argument would not aid the decisional process.
DISMISSED
- 2 -
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437 B.R. 330 (2010)
In re Michael E. LaHOOD and Annette M. White LaHood, Debtors.
Richard J. LaHood and FLLZ, LLC, Debtor-Appellant,
v.
Charles E. Covey, Trustee, Appellee.
Heartland Bank and Trust Company, Plaintiff-Appellant,
v.
Charles E. Covey, Trustee, Richard J. LaHood, and FLLZ, L.L.C., Defendants-Appellees.
Civil Nos. 09-1264, 09-1265. Adversary Nos. 07-8156, 07-8156.
United States District Court, C.D. Illinois.
September 30, 2010.
*332 Janaki Hanna Nair, John S. Elias, Elias, Meginnes, Riffle & Seghetti, Peoria, IL, for Richard LaHood and FLLZ, LLC.
Andrew W. Covey, Peoria, IL, for Trustee Charles E. Covey.
John K. Kim, Mark Bogdanowicz, Timothy Howard, Howard & Howard, for Heartland Bank and Trust Company.
ORDER
MICHAEL M. MIHM, District Judge.
This matter is now before the Court on Appellants Richard LaHood ("Richard") *333 and FLLZ, LLC's Appeal from the Order of the Bankruptcy Court granting summary judgment in favor of the Trustee, as well as Appellant Heartland Bank and Trust Company's ("Heartland") appeal from the Order of the Bankruptcy Court granting in part and denying in part Heartland's Motion for Summary Judgment. For the reasons stated herein, the decision of the Bankruptcy Court with respect to the appeal of Richard and FLLZ is affirmed, and the decision with respect to the appeal of Heartland is reversed and remanded for further proceedings.
Procedural Background
On August 9, 2007, Michael LaHood ("Michael") and his wife filed a voluntary petition for bankruptcy under Chapter 7 of the Bankruptcy Code. At that time, Michael and Richard were the only members of FLLZ, a member managed, Illinois limited liability company, with each holding 50% of the shares. Prior to this time, FLLZ's principal asset was certain real estate commonly known as Route 26, East Peoria, Illinois (the "Real Estate"). Richard held a mortgage securing a mortgage note dated January 5, 2006, in the original principal amount of $427,079.49, which was made and delivered by Michael in favor of Richard and granted Richard first mortgage lien on the Real Estate. The mortgage note was further secured by a Security Agreement, dated January 5, 2006, executed by Michael in favor of Richard. At the time Michael filed his petition, Richard was owed $427,079.49 in principal plus interest.
On October 4, 2007, Richard executed a Declaration of Dissolution of FLLZ without consulting the Trustee or seeking the approval of the Bankruptcy Court. The same day, Richard caused FLLZ to execute two deeds, one conveying one-half interest in the Real Estate to himself and the other conveying a one-half interest in the Real Estate to Michael. Heartland is a creditor of Michael and claims that a lien in its favor attached to Michael's 50% membership interest in FLLZ as a result of a Judgment by Confession and Citation to Discover Assets on March 20, 2007.
The Trustee and Heartland argued that the distribution of the FLLZ Real Estate to Richard and Michael on October 4, 2007, was improper because it violated the automatic stay provisions. This argument was predicated on the suggestion that the Trustee, having stepped into the shoes of Michael as the debtor, had a right to participate in the winding-up of FLLZ. Richard and FLLZ argued that Michael was wrongfully dissociated from FLLZ upon filing the petition, making the distribution proper.
Heartland filed a Motion for Summary Judgment on its Complaint to determine the validity, priority, and extent of liens in the underlying adversary proceeding. On February 6, 2008, the Trustee and Heartland entered into a compromise, stipulating that Heartland's lien is valid and perfected as to 80% of the value of the estate's 50% membership interest in FLLZ and that Heartland is entitled to 80% of the proceeds of the winding-up of FLLZ, with the remaining 20% of the proceeds going to the estate. Based on a May 15, 2008, appraisal, the fair market value of the Real Estate was $1,180,000. This compromise was not accepted by the Bankruptcy Court.
In this appeal, Heartland asserts that a valid lien attached to Michael's interest in FLLZ after it served a citation to discover assets on him on March 20, 2007, pursuant to 735 ILCS 5/2-1402(m). On March 19, 2009, the Bankruptcy Court found against Richard and FLLZ, concluding that Michael's dissociation from FLLZ was not wrongful under the Operating Agreement, vesting the Trustee with the right to participate *334 in the winding-up of FLLZ. Furthermore, the Bankruptcy Court found that under state law and the terms of the Operating Agreement, creditors must be paid first before any distribution of property to the Members. As a creditor holding a first mortgage lien, Richard was entitled to payment prior to any distribution of the Real Property. The Bankruptcy Court also concluded that the distribution was part of a plan by Richard to obtain property of FLLZ to the detriment of the bankruptcy estate and was therefore in violation of the automatic stay. With respect to Heartland, the Bankruptcy Court held that Heartland's lien on Michael's membership interest was invalid because the charging order procedure described in § 30-20(e) of the LLC Act is the exclusive remedy for a creditor seeking to attach or enforce a judgment against the interest of a member in an Illinois limited liability company.
These appeals follow.
Jurisdiction and Standard of Review
This Court has jurisdiction to review the decision of the Bankruptcy Judge pursuant to 28 U.S.C. § 158(a). District courts are to apply a dual standard of review when considering a bankruptcy appeal. The findings of fact of the Bankruptcy Judge are reviewed for clear error, while the conclusions of law are reviewed de novo. In re Midway Airlines, 383 F.3d 663, 668 (7th Cir.2004); In re Smith, 286 F.3d 461, 465 (7th Cir.2002); In re Yonikus, 996 F.2d 866, 868 (7th Cir.1993); In re Ebbler Furniture and Appliances, Inc., 804 F.2d 87, 89 (7th Cir.1986); see also, Bankruptcy Rule 8013 (West 1995).
Discussion
I. Appeal by Richard LaHood and FLLZ
Richard and FLLZ appeal raising several interrelated issues: (1) the Bankruptcy Court erred in finding that Michael was not a wrongfully dissociated member of FLLZ at the time the Petition was filed; (2) the Bankruptcy Court erred in finding that the Trustee has a right to participate in the winding up of FLLZ; (3) the Bankruptcy Court erred in finding that the Real Estate was not properly distributed on October 4, 2007; (4) the Bankruptcy Court erred in concluding that the post-petition conveyance by FLLZ to Michael was in violation of the automatic stay and void; and (5) the Bankruptcy Court erred in ruling on "merger" as it had not been briefed.
A. Wrongful Dissociation
Richard and FLLZ take the position that under the Illinois Limited Liability Company Act, 805 ILCS § 180/1-1 et seq. (hereinafter the "LLC Act"), as well as the terms of the FLLZ Operating Agreement, Michael dissociated from FLLZ on August 9, 2007, when he filed his Petition. 805 ILCS § 180/35-35(7)(A). Section 180/35-55(b) of the LLC Act then provides that if a member is dissociated from an LLC, the member's right to participate in the management and conduct of the company's business terminates with the exception of participating in the "winding up" of the company's business so long as the dissociation was not wrongful; the member ceases to be a member and is treated the same as a transferee of a member.
Richard and FLLZ contend that Michael's dissociation was wrongful. Under the LLC Act, dissociation is wrongful only if it is in breach of an express provision of the Operating Agreement. 805 ILCS § 180/35-50(b). Richard and FLLZ cite § 6.01 of the Operating Agreement, which provides in relevant part:
No Member ... may sell, assign, transfer, give, exchange, pledge, or otherwise *335 dispose of any Units or any interest therein now held or hereafter acquired by him (whether voluntary, involuntary, or by operation of law) without first giving written notice thereof ("Notice of Proposed Transfer") to the Company and otherwise complying with the notice procedures and other terms and conditions of this Article VI.
Similarly, § 6.05 of the Operating Agreement states that an assignee of a membership interest becomes a substituted Member entitled to all the rights of a Member only if all of the other Members consent in writing to the substitution. In essence, they assert that Michael voluntarily transferred his interest to the bankruptcy estate by operation of law without giving the notice required under the Operating Agreement, thereby acting in breach of an express provision and making his dissociation wrongful.
The Bankruptcy Court properly noted that Article IV of the Operating Agreement, which contains both §§ 6.01 and 6.05, addresses voluntary transfers by a member. The transfer at issue here was not this type of voluntary transfer, but rather a transfer that was compelled by operation of law, which is covered by Article VIII of the Operating Agreement. Section 8.01 provides that where a member files a petition for bankruptcy, the company has the option to purchase all or any part of the units owned by the member at a stipulated price.
Based on the existence of a separate article addressing transfers by operation of law, the Bankruptcy Court found that the specific notice and consent provisions relied on by Richard and FLLZ simply do not apply under the facts of this case. However, § 6.01 clearly indicates that the notice and offer provisions apply to any attempt to "sell, assign, transfer, give, exchange, pledge, or otherwise dispose of any Units or any interest therein now held or hereafter acquired by him (whether voluntary, involuntary, or by operation of law)..." This suggests that the requirements apply whether the assignment was voluntary, involuntary, or by operation of law. Yet this does not necessarily mean that the Bankruptcy Court's holding was erroneous.
Sections 541(c)(1)(A)-(B) of the Bankruptcy Code provide in relevant part:
[A]n interest of the debtor in property becomes property of the estate under subsection (a)(1), (a)(2), or (a)(5) of this section notwithstanding any provision in an agreement, transfer instrument, or applicable nonbankruptcy law ... that restricts or conditions transfer of such interest by the debtor; or that is conditioned on the insolvency or financial condition of the debtor, on the commencement of a case under this title, or on the appointment of or taking possession by a trustee in a case under this title or a custodian before such commencement, and that effects or gives an option to effect a forfeiture, modification, or termination of the debtor's interest in property.
According to the Trustee, § 541(c) trumps any contrary provisions in the Operating Agreement, precluding Michael's alleged breach of the notice and offer provisions from rendering his dissociation wrongful.
This issue appears to present a case of first impression in this Circuit. In fact, there is precious little case law addressing this precise question in any jurisdiction. In In re Ehmann, 319 B.R. 200, 206 (D.Ariz.2005), the bankruptcy court held that pursuant to § 541(c), any interest of the debtor becomes property of the estate regardless of any agreement that would otherwise restrict or condition transfer of the debtor's interest. As all of the provisions of the operating agreement relied on *336 by the company "constitute conditions and restrictions upon the member's transfer of his interest ... Code § 541(c)(1) renders those restrictions inapplicable." Id.
Similarly, in In re Klingerman, 388 B.R. 677, 678-79 (E.D.N.C.2008), the bankruptcy court cited Ehmann and distinguished a contrary result in In re Garrison-Ashburn, LC, 253 B.R. 700 (Bnkrtcy.E.D.Va.2000), in holding that § 541(c) vests the bankruptcy estate with all of the debtor's interest notwithstanding applicable non-bankruptcy law or contractual provisions effecting a modification or termination of the debtor's interest upon filing. As a result, the bankruptcy estate received the debtor's economic and non-economic rights and interests, including the right to dissolution, wind up, and liquidation. Id.
In In re Daugherty Construction, Inc., 188 B.R. 607, 611 (Bnkrtcy.D.Neb.1995), the bankruptcy court held that provisions of an LLC agreement treating the filing of a petition in bankruptcy as a dissolution and termination of the debtor were not enforceable under the Supremacy Clause because they were in direct conflict with specific provisions of the Bankruptcy Code. Accordingly, such provisions "are not enforceable in a Chapter 11 bankruptcy case." Id.
Even Garrison-Ashburn, which ultimately concluded that the estate only had the rights of an assignee, acknowledged that § 541(a) "clearly encompasses all of [the debtor's] interest in [the company], whatever that interest may be, whether economic or noneconomic." 253 B.R. at 707-08. That section of the Bankruptcy Code also "makes plain that no restriction on the transfer of any interest of a debtor whether it arises from the operative documents themselves or from applicable nonbankruptcy lawprevents an interest from becoming property of the estate." Id. As a result, all of the rights and privileges that the debtor had immediately prior to filing became the property of the bankruptcy estate. Id. Moreover, the reasoning for the limitation on the estate's rights found in Garrison-Ashburn was based on readily distinguishable facts, as Richard and FLLZ are attempting to use the provisions of the Operating Agreement to deprive the estate of valuable assets in a way that would offend the Congressional intent behind § 541(c).
The Court finds the reasoning in these cases to be persuasive. Accordingly, the Court concludes that the provisions of the Operating Agreement purporting to place limitations or restrictions on Michael's interest as a result of his bankruptcy filing are unenforceable in this proceeding. Richard and FLLZ therefore cannot use the alleged violation of §§ 6.01 and 6.05 of the Operating Agreement to establish that Michael's dissociation was wrongful, and the Bankruptcy Court's holding that Michael's dissociation was not wrongful was not in error.
B. Winding Up
Richard and FLLZ's disagreement with the Bankruptcy Court's conclusion that the Trustee has a right to participate in the winding up of FLLZ's affairs is based on their assertion that Michael's dissociation from the company was wrongful. As the Court has now rejected that argument and found that Michael's dissociation was not wrongful, this basis for appeal lacks merit and warrants no further discussion.
C. Proper Distribution
The next appeal by Richard and FLLZ concerns the finding by the Bankruptcy Court that the distribution of the Real Estate was improper based on the failure to apply the assets to discharge the claims of creditors before distributing to members under the LLC Act. Specifically, *337 the Bankruptcy Court found that Richard should have caused FLLZ to first pay him $427,079.49 plus interest as a creditor in satisfaction of the Mortgage, and only then could have distributed any remaining property to the members.
Section 35-4(c) of the LLC Act provides:
A person winding up a limited liability company's business may preserve the company's business or property as a going concern for a reasonable time, prosecute and defend actions and proceedings, whether civil, criminal, or administrative, settle and close the company's business, dispose of and transfer the company's property, discharge the company's liabilities, distribute the assets of the company pursuant to Section 35-10, settle disputes by mediation or arbitration, and perform other necessary acts.
805 ILCS § 180/35-4(c). Section 35-10(a) then provides that in winding up an LLC's business, "the assets of the company must be applied to discharge its obligations to creditors, including members who are creditors. Any surplus must be applied to pay in money the net amount distributable to members in accordance with their right to distributions under subsection (b) of this Section."
Additionally, § 12.03(a) of the Operating Agreement directs that when the company is dissolved, creditors, including members who are creditors, have first priority for distribution whether the assets are distributed in kind or by converting them to cash and distributing the proceeds thereof. Distributions to members in satisfaction of the company's obligations due and owing under § 4.01 and Article IX are next in line, followed by proportional distributions to members having positive capital account balances. Operating Agreement §§ 12.03(b)-(c).
The argument by Richard and FLLZ on this issue is half-hearted and can best be characterized as a throw-away argument. They take a portion of § 12.03 of the Operating Agreement out of context, ignoring the established priority for distribution in racing to their conclusion that an in kind distribution was permissible under the terms of the Operating Agreement, before summarily asserting without citation to any authority that Richard was not a creditor of FLLZ. Perhaps this is because there is really no credible basis for an argument that flies in the face of the very document that they purport to rely on. This kind of perfunctory and undeveloped legal argument is utterly insufficient, and it is well-settled that responses of this type result in the waiver of the argument. See, Finance Investment Co. v. Geberit AG, 165 F.3d 526, 1998 WL 890372, at *1 (7th Cir. Dec.23, 1998) (finding a perfunctory and undeveloped argument to be waived); Volovsek v. Wisconsin Department of Agriculture, Trade and Consumer Protection, 344 F.3d 680, 689 n. 6 (7th Cir.2003); Indurante v. Local 705, International Brotherhood of Teamsters, 160 F.3d 364, 366 (7th Cir.1998); Kauthar SDN BHD v. Sternberg, 149 F.3d 659, 668 (7th Cir.1998), cert. den., 525 U.S. 1114, 119 S.Ct. 890, 142 L.Ed.2d 788 (1999).
D. Automatic Stay
Richard and FLLZ next challenge the Bankruptcy Court's finding that Richard's actions in distributing the Real Estate violated the automatic stay. "It is well settled that the automatic stay has a dual purpose: it temporarily relieves the debtor of financial hardship and collection activity while simultaneously preventing creditors from improving their positions relative to one another." In re Mid-City Parking, Inc., 332 B.R. 798, 815 (Bnkrtcy.N.D.Ill.2005); see also, Martin-Trigona v. Champion Federal Savings and Loan Association, 892 F.2d 575, 577 *338 (7th Cir.1989); Winters by & Through McMahon v. George Mason Bank, 94 F.3d 130, 133, 135 (4th Cir.1996); Maritime Electric Co. v. United Jersey Bank, 959 F.2d 1194, 1204 (3rd Cir.1991); Ass'n of St. Croix Condominium Owners v. St. Croix Hotel Corp., 682 F.2d 446, 448 (3rd Cir. 1982); Commerzanstalt v. Telewide Sys., 790 F.2d 206, 207 (2nd Cir.1986); Farley v. Henson, 2 F.3d 273, 274 (8th Cir.1993); H.R.Rep. No. 95-595, at 340 (1977), reprinted in 1978 U.S.C.C.A.N. 5963, 6296-97. Proceedings conducted in violation of the automatic stay are generally void and without legal effect. ICC v. Holmes Transp., Inc., 931 F.2d 984, 987 (1st Cir. 1991).
Here, it is undisputed that Michael filed his petition in bankruptcy on August 9, 2007, and the automatic stay went into effect. It is further undisputed that Richard executed the Declaration of Dissolution of FLLZ and two deeds conveying the interest in the Real Estate to himself and Michael on October 4, 2007, without consulting the Trustee or seeking the approval of the Bankruptcy Court. Richard and FLLZ argue that prior to the distribution, the Real Estate was not an asset of the bankruptcy estate, but rather an asset of FLLZ.
While several of the provisions of § 362(a) are couched in terms of the assets of the estate or the debtor, subsection (6) is stated much more broadly and refers to claims against the debtor rather than assets of the estate. "[A]ny act to collect, assess, or recover a claim against the debtor that arose before the commencement of the case" violates the automatic stay provisions pursuant to 11 U.S.C. § 362(a)(6). Richard and FLLZ admit that Richard held a Mortgage that was secured by a first mortgage lien on FLLZ's Real Estate and that his Mortgage secures a debt in the original amount of $427,079.49 owed by Michael to Richard. Stipulation of Undisputed Facts [Bnkrtcy. Doc. 47] at ¶¶ 6-9. As such, it is difficult to suggest in good faith that Richard did not have a claim against Michael that arose before the filing of the bankruptcy petition. As Richard and FLLZ further acknowledge that the execution of the deeds was done to effect a merger so that the Mortgage would be payable solely from Michael's interest in the Real Estate, it is equally difficult to suggest in good faith that Richard's actions were not an act to collect or recover his claim against Michael and maximize his recovery at the expense of the bankruptcy estate. Thus, the Court finds no error in the Bankruptcy Court's determination that Richard's actions violated the automatic stay and are void.
E. Merger
Richard and FLLZ suggest that the Bankruptcy Court erred in addressing the doctrine of merger, as it had not yet been briefed. However, they had clearly raised the issue in their Joint Memorandum of Law [Bnkrtcy. Doc. 58 at 8-9], concluding that Richard's Mortgage had merged with his membership interest pursuant to the doctrine of merger and summarily stating that the issue was not before the court at that time. The Bankruptcy Court disagreed, finding that it was necessary to determine whether this theory was correct in order to address the remaining issues. Richard and FLLZ, who initially raised the issue of merger, cannot reasonably suggest that they were unaware of the issue or lacked an opportunity to address the issue.
"A party may not move for summary judgment on an issue and take a `calculated risk' that the issue it failed to brief will not be dispositive." Sethness-Greenleaf, Inc. v. Green River Corp., 1992 WL 188422, at *7 (N.D.Ill. July 27, 1992). Accordingly, any objection on this basis is without merit.
*339 II. Appeal by Heartland
Heartland asserts that a valid lien attached to Michael's interest in FLLZ after it served a citation to discover assets on him on March 20, 2007, pursuant to 735 ILCS 5/2-1402(m). Section 5/2-1402(m) provides:
The judgment or balance due on the judgment becomes a lien when a citation is served in accordance with subsection (a) of this Section. The lien binds nonexempt personal property, including money, choses in action, and effects of the judgment debtor as follows:
(1) When the citation is directed against the judgment debtor, upon all personal property belonging to the judgment debtor in the possession or control of the judgment debtor or which may thereafter be acquired or come due to the judgment debtor to the time of the disposition of the citation.
(2) When the citation is directed against a third party, upon all personal property belonging to the judgment debtor in the possession or control of the third party or which thereafter may be acquired or come due the judgment debtor and comes into the possession or control of the third party to the time of the disposition of the citation.
The lien established under this Section does not affect the rights of citation respondents in property prior to the service of the citation upon them and does not affect the rights of bona fide purchasers or lenders without notice of the citation. The lien is effective for the period specified by Supreme Court Rule.
The Bankruptcy Court found that the general rule in § 5/2-1402(m) was trumped by § 30-20 of the LLC Act, as it provides the exclusive mechanism for impressing a lien upon a judgment debtor's interest in an Illinois LLC. Section 30-20 states:
(a) On application by a judgment creditor of a member of a limited liability company or of a member's transferee, a court having jurisdiction may charge the distributional interest of the judgment debtor to satisfy the judgment. The court may appoint a receiver of the share of the distributions due or to become due to the judgment debtor and make all other orders, directions, accounts, and inquiries the judgment debtor might have made or which the circumstances may require to give effect to the charging order.
(b) A charging order constitutes a lien on the judgment debtor's distributional interest. The court may order a foreclosure of a lien on a distributional interest subject to the charging order at any time. A purchaser at the foreclosure sale has the rights of a transferee.
(c) at any time before foreclosure, a distributional interest in a limited liability company that is charged may be redeemed:
(1) by the judgment debtor;
(2) with property other than the company's property, by one or more of the other members; or
(3) with the company's property, but only if permitted by the operating agreement.
(d) This Act does not affect a member's right under exemption laws with respect to the member's distributional interest in a limited liability company.
(e) This Section provides the exclusive remedy by which a judgment creditor of a member or a transferee may satisfy a judgment out of the judgment debtor's distributional interest in a limited liability company.
805 ILCS 180/30-20. This dispute essentially presents another issue of first impression on which there is very little authority that is even marginally relevant.
*340 Heartland relies on Dowling v. Chicago Options Associates, Inc., 365 Ill.App.3d 341, 301 Ill.Dec. 731, 847 N.E.2d 741 (1st Dist.2006), for the proposition that it approved the citation process to perfect a judicial lien on the debtor's membership interest in an LLC. However, Dowling is not dispositive, as it does not address the question presented in this case. Id., at 354, 301 Ill.Dec. 731, 847 N.E.2d 741. There was no challenge to whether a valid and enforceable lien attached with the service of the citation to discover assets, and the only issue was whether a public sale by the sheriff was required. Id. Section 30-20 of the LLC Act was simply not addressed.
Although also not completely analogous, the Court finds the opinion in Bobak Sausage Co. v. Bobak Orland Park, Inc., 2008 WL 4814693, at *4-5 (N.D.Ill.2008), to be instructive. The debtor in Bobak held a 30% interest in an LLC that was determined to be relatively illiquid as a result of the substantial limitations on the alienability of full membership interests contained in the LLC's operating agreement. Id. Given the lack of a ready market for this type of an asset, the district court concluded that the general provision in the first sentence of § 2-1402(e) of the Illinois Code of Civil Procedure that property delivered up by the debtor shall be delivered to the sheriff to be sold may give way to another method that is more appropriate to liquidate the property where the debtor's property cannot readily be delivered for sale pursuant to the second sentence of § 2-1402(e). Id., at *4. Like § 30-20 of the LLC Act, the second sentence of § 2-1402(e) was simply not at issue in Dowling. The court found the alternative provision in sentence two of § 2-1402(e) to be in accord with § 30-20 of the LLC Act, finding:
Section 30-20 provides the "exclusive remedy" of a judgment creditor of a LLC member seeking to satisfy a judgment via the member's interest. 805 ILCS 180/30-20(e). A court with jurisdiction "may charge the distributional interest of the judgment debtor to satisfy the judgment." Id. 180/30-20, 301 Ill.Dec. 731, 847 N.E.2d 741(a). The statute defines "distributional interest" as a member's rights to monetary distributions from the LLC. Id. 180/1-5, 301 Ill.Dec. 731, 847 N.E.2d 741. "A charging order constitutes a lien on the judgment debtor's distributional interest." Id. 180/30-20, 301 Ill.Dec. 731, 847 N.E.2d 741(b). Section 180/30-20(b) further provides that a court may order a foreclosure on that lien at any time. Id. Courts in other states with similar LLC statutes have interpreted this provision to allow a court to order the distributional interest charged with the payment of a judgment. See Herring v. Keasler, 150 N.C.App. 598, 600-01, 563 S.E.2d 614, 615-16 (2002) (holding that forced sale of a judgment debtor's membership interest was prohibited under North Carolina's LLC statute and that charging the distributional interest was the proper remedy). Section 30-20 also allows a court to appoint a receiver for the distributional interest. 805 ILCS 180/30-20(a). Though the Illinois Supreme Court has not spoken on the matter, these provisions seems to contradict Dowling's assertion that the only permissible method of disposal for an interest in an LLC is a public sale administered by the sheriff.
Id., at *5. See also, In re Pischke, 11 B.R. 913 (Bankrtcy.E.D.Va.1981) (citing state court cases holding that creditors cannot levy attachment or execution on a partner's right in specific partnership property or limited partnership interest but must first obtain a judgment and pursue the statutory remedy of seeking a charging order.)
*341 Here, Michael's interest in FLLZ was also largely illiquid, with no readily available market for sale given the restrictions on attempts to transfer membership interest contained in the Operating Agreement, and a public sale by the sheriff would clearly not be a very effective method to liquidate his interest. Heartland clearly obtained a judgment against Michael but made no effort to obtain a charging order under § 30-20.
There is no dispute that the service of a citation imposes a lien on the judgment debtor's personal property under Illinois law. Bobak, 2008 WL 4814693, at *5, citing 735 ILCS 5/2-1402(m)(1); City of Chicago v. Air Auto Leasing Co., 297 Ill.App.3d 873, 232 Ill.Dec. 46, 697 N.E.2d 788 (1998). Heartland correctly notes that Bobak does not stand for the proposition that a charging order is the only way to impose a lien against a member's interest in an LLC and that Dowling at least suggests that liens may also be imposed under the auspices of § 2-1402. Acknowledging that Dowling and Bobak arguably stand for the proposition that liens against a member's interest in an LLC may be created either through the service of a citation or by obtaining a charging order, the Court must respectfully disagree with the Bankruptcy Court's conclusion that Heartland could not have created a lien via the service of the citation in March 2007. Whether the citation contained the requisite statutory language to create a valid lien and otherwise complied with the Illinois' citation statute does not appear to have been addressed by the Bankruptcy Court and must be addressed on remand.
If the Bankruptcy Court finds in favor of Heartland on these questions, as well as any other previously unaddressed issues that may be necessary in this regard, the question will then logically become how the lien will be treated in terms of satisfaction or remedy. The decision in Pischke relied on a provision similar to § 30-20 under Virginia law in concluding that "a charging order supersedes the general procedure for execution on intangibles." 11 B.R. at 918.
It has been stated that a charging order statute "constitute(s) ... repeal by implication of any previous procedures designed to" reach a partner's interest in a partnership.... An analysis of this principle considered in conjunction with the fact that it is the creation of the lien and not its enforcement which is critical in the bankruptcy setting indicates that the better and most logical application is that the Virginia charging order statute... supersedes other legislation in the area concerning satisfaction of a judgment creditor's claim against a partner's interest in a partnership.
Id., at 917. Pischke further advises that creditors "shall obtain priority, if at all, in the sequence in which they were granted charging orders by a court of competent jurisdiction," suggesting that the failure to obtain a charging order prevents a judgment creditor from obtaining priority in terms of executing or satisfying the judgment. Id. Under this rationale, Heartland's judgment lien would not be entitled to priority absent a charging order, as § 30-20 would foreclose the possibility that any lien obtained by a citation could be an alternative to a lien obtained through a charging order in terms of being in a position to satisfy the lien or obtain a remedy. To find differently would render the "exclusive remedy" provision of § 30-20(e) meaningless.
While Heartland has not obtained a charging order at this time, Pischke indicates that it may be possible for a judgment creditor to avail themselves of the opportunity to request that the automatic stay be lifted to allow the creditor to seek a charging order from a court of competent *342 jurisdiction. Id., at 18-19. Whether such opportunity is appropriate in this case is not before the Court and must be determined by the Bankruptcy Court in the first instance. Given the Court's finding that Heartland could have created a valid lien by serving its citation and that there is at least a theoretical possibility that a charging order may still be obtained to allow the satisfaction of any such lien, this matter must be remanded to the Bankruptcy Court for further proceedings consistent with this opinion. The Court takes no position regarding the ultimate resolution of this issue.
Conclusion
For the reasons stated herein, the Order of the Bankruptcy Court is AFFIRMED in Case No. 09-1264, and the portion of the Order of the Bankruptcy Court appealed is REVERSED and REMANDED in Case No. 09-1265. This matter is now TERMINATED.
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95 F.3d 54
U.S.v.White*
NO. 95-50869
United States Court of Appeals,Fifth Circuit.
Aug 02, 1996
Appeal From: W.D.Tex., No. W-94-CR-68
1
AFFIRMED.
*
Fed.R.App.P. 34(a); 5th Cir.R. 34.2
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667 So.2d 522 (1996)
Kay Bates COLVIN
v.
Richard Keith COLVIN.
No. 95-C-2653.
Supreme Court of Louisiana.
January 5, 1996.
Denied.
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94 U.S. 14 (1876)
EX PARTE CUTTING.
Supreme Court of United States.
*18 Mr. Henry Crawford for the petitioners.
Mr. William M. Evarts and Mr. J.O. Broadhead, contra.
*19 MR. CHIEF JUSTICE WAITE delivered the opinion of the court.
To entitle the petitioners to the writ asked for in this case, *20 they must show that they have a clear right to an appeal which has been refused by the Circuit Court. The office of a mandamus is to compel the performance of a plain and positive duty. It is issued upon the application of one who has a clear right to demand such a performance, and who has no other adequate remedy. It is never granted in anticipation of an omission of duty, but only after actual default.
This application is for a writ commanding the judges of the Circuit Court, or one of them, to allow the petitioners an appeal from the decrees in the cause, and a supersedeas. This is the only specific relief asked; and, in support of the application, it is insisted that Marie, Otis, Cutting, Jr., Cutting, and Fearing were admitted as parties to the suit March 25, when they filed their petition therefor, and that consequently they were in a position to demand an appeal as parties. It would, perhaps, be a sufficient answer to this position to say that no one of these petitioners has ever made application to the Circuit Court or either of the judges for the allowance of an appeal in his favor as a party to the suit. They have only asked to be permitted to intervene and become parties, in order that they might appeal.
But, if this were otherwise, the result would not be different; for the persons presenting the petition of March 25 never did in fact become parties, and it is apparent from the record that their present claim in that regard is an afterthought. They filed their petition to be made defendants in the suit, but it was never granted. Not only was no express order made to that effect, but there is nothing to show that they were ever in any manner recognized as parties, or that they ever supposed they were parties. Formal orders were made and conditions imposed upon the admission of Akers and St. Louis County as defendants. But they afterwards withdrew, and neither Cutting nor any of his associates attempted to act in their stead. Subsequently he and some of his co-petitioners united with other persons in another petition for leave to intervene, without in any manner claiming advantage from their former action, or even alluding to it.
We are aware that there are cases in which persons have been treated as parties to a suit after having filed a petition for *21 leave to come in, when no formal order admitting them appears in the record, but in all such cases it will be found that they have acted or have been recognized as parties in the subsequent proceedings in the case. Thus, in Myers v. Fenn, 5 Wall. 205, "the petitions were filed without any order of the court, but no objection was made, and the hearing went on as if an order had been granted;" and in Harrison v. Nixon, 9 Pet. 491, "inquiries were made as to the respective claims," as asked for, and "as to all parties who were claimants before the court by bill, petition, or otherwise, their complaint, petition, and proceedings were dismissed." So, in Ogilvie v. Knox Ins. Co., 2 Black, 539, petitions were filed by certain creditors praying to be made parties, and that a receiver might be appointed, which was done; and in Bronson v. La Crosse Railroad Co., 2 Wall. 304, certain stockholders in a corporation were permitted to appear in a cause to which the corporation was a party, and present their several claims by answer in the name of the corporation; but this having been afterwards found to be irregular, the answers were considered "rather by indulgence than a matter of strict right as the answer of the individual stockholders." Upon the same principle, it was held in Railroad Company v. Bradleys, 7 Wall. 575, that where an appeal had been prayed for, and subsequently an appeal bond, approved by one of the judges, had been filed in the court, it would be inferred that an appeal had been allowed, although there was no express order to that effect in the record.
From this it is apparent that if one wishes to intervene and become a party to a suit in which he is interested, he must not only petition the court to that effect, but his petition must be granted; and while it is not necessary for him to show that he has actually been admitted by an express order entered upon the record, he must at least make it appear that he has acted or has been treated as a party. That, as we have seen, is not the case here. These petitioners seem to have been content to leave their interests in the hands of Akers; and, when he went out, they went with him. That the court understood this to be so is apparent from the following statement made by the judges in their return to the rule to show cause: "On June 6, 1876, . . . said Akers and said St. Louis County withdrew their *22 answers and dismissed their cross-bills, both said Akers and said St. Louis County purporting to act for themselves as stockholders, and for all other stockholders who might join them."
Upon this state of facts it is impossible to say that the petitioners, or any of them, have established their right to appeal as actual parties to the suit before the decree.
No appeal lies from the order of Oct. 3, refusing them leave to intervene and become parties; for that was only a motion in the cause, and not an independent suit in equity appealable here.
Neither can these petitioners appeal as stockholders. Only parties, or those who represent them, can appeal. The stockholders do not represent the corporation, but for some purposes the corporation represents them. They are sometimes admitted as parties to a suit, for the purpose of protecting their own interests in the corporation against unfounded and illegal claims against it, but this "remedy is an extreme one, and should be admitted by the court with hesitation and caution." Bronson v. La Crosse Railroad Co., 2 Wall. 302. It is always addressed to the sound judicial discretion of the court. That we cannot control by mandamus.
We need not consider what rights these petitioners would have if Akers had not withdrawn his intervention before the decree. After his withdrawal, they had no representative stockholder party to the suit, and their position is the same it would have been if no parties had ever intervened in their interest.
Mandamus denied.
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486 S.E.2d 229 (1997)
JENNINGS COMMUNICATIONS CORPORATION, Plaintiff,
v.
PCG OF the GOLDEN STRAND, INC., now known as Tropic of North Carolina, Inc., and Tropic Communications, Inc., Defendants.
No. COA96-938.
Court of Appeals of North Carolina.
July 1, 1997.
*230 Powell & Payne, by William A. Powell, Shallotte, for plaintiff-appellee.
James K. Larrick, Wilmington, for defendants-appellants.
WALKER, Judge.
Defendant PCG of the Golden Strand, now Tropic of North Carolina, Inc. (TNC), executed two promissory notes in favor of the plaintiff on 19 March 1995. One promissory note was in the principal amount of $107,000.00 with interest at seven percent. The other promissory note was for the principal amount of $95,000.00 with interest at seven percent. Both notes were secured by a security agreement in favor of the plaintiff pledging personal property as collateral. Additionally, defendant Tropic Communications, Inc. (TCI) executed a guaranty agreement for the $95,000.00 note which contained the provision that "... in the case of non payment of principal and interest when due, action may be brought by the holder of this note against the undersigned only if the holder has first exhausted all remedies available to it against the maker of this note and against all collateral securing this note...."
In a letter to defendants dated 28 September 1995, plaintiff advised that the notes were in default as of 1 July 1995 and that the plaintiff was accelerating the full principal and interest balance due on each note, with this amount to be due no later than 13 October 1995.
Thereafter, no payment was made toward either note and plaintiff filed this action on 13 November 1995 seeking the amount owed on both notes as well as attorney's fees in the amount of 15 percent of the balance due. On 12 March 1996, plaintiff filed a motion for summary judgment and submitted the affidavit of its president who testified that as of 13 *231 February 1996, the total amount due on both notes was $176,387.25.
Defendant TCI countered with the affidavit of its president, John E. Rayl, who denied that TCI was maker of either of the notes, and denied that TCI was a party to the security agreement, but did state that TCI was only a guarantor of the $95,000.00 note. Rayl also testified that any liability on the part of TCI was contingent upon plaintiff exhausting all of its remedies against defendant TNC and the collateral which it had failed to do.
The trial court entered summary judgment for the plaintiff ordering defendant TNC to pay the sum of $168,358.94 plus $10,713.02 in interest and the defendant TCI to pay the sum of $79,126.30 plus $5,034.96 in interest on the $95,000.00 note. The judgment further ordered that defendant TNC would receive credit for sums paid by defendant TCI and defendant TCI would receive credit for all sums paid by defendant TNC on the $95,000.00 note. Finally, the judgment directed defendant TNC to pay attorney's fees to plaintiff in the sum of $26,860.79 and that defendant TCI pay attorney's fees to the plaintiff in the sum of $12,624.19 (with each defendant also receiving credit for all attorney's fees paid by the other defendant on the $95,000.00 note).
Defendant TCI argues the trial court erred in granting summary judgment to the plaintiff in that the trial court improperly interpreted the guaranty executed by TCI as a guaranty of payment and failed to find that plaintiff had complied with the conditions precedent to the institution of this action.
"Summary judgment is a device whereby judgment is rendered if the pleadings, depositions, interrogatories, and admissions on file, together with any affidavits show that there is no genuine issue as to any material fact and that the party is entitled to judgment as a matter of law." N.C.Gen.Stat. § 1A-1, Rule 56. The party moving for summary judgment has the burden of clearly establishing a lack of any triable issue of fact by the record proper before the court. Singleton v. Stewart, 280 N.C. 460, 465, 186 S.E.2d 400, 403 (1972). Further, in Palm Beach, Inc. v. Allen, 91 N.C.App. 115, 117, 370 S.E.2d 440, 441 (1988), this Court found that whether or not a guaranty was of payment or collection was a proper matter before the court and "that the construction of a guaranty agreement is a matter of law where the language employed is plain and unambiguous."
A guaranty of payment is an absolute and unconditional promise to pay the debt at maturity if not paid by the principal debtor. Credit Corp. v. Wilson, 281 N.C. 140, 145, 187 S.E.2d 752, 755 (1972). In this type of guaranty agreement, the obligation of the guarantor is separate and independent from the obligation of the principal debtor. Investment Properties v. Norburn, 281 N.C. 191, 195, 188 S.E.2d 342, 345 (1972). The creditor's cause of action against a guarantor of payment ripens immediately upon the failure of the principal debtor to pay the debt at maturity, and the creditor need not have diligently prosecuted the principal debtor without success before seeking payment from the guarantor of payment. Cameron-Brown v. Spencer, 31 N.C.App. 499, 502, 229 S.E.2d 711, 712 (1976), disc. review denied, 291 N.C. 710, 232 S.E.2d 203 (1977).
Conversely, a guaranty of collection is a promise by the guarantor to pay the debt on condition that his creditor shall diligently prosecute the principal debtor without success first. Credit Corp., 281 N.C. at 145, 187 S.E.2d at 755.
The guaranty agreement executed by defendant TCI reads as follows:
ABSOLUTE AND UNCONDITIONAL GUARANTY
FOR VALUE RECEIVED, the undersigned hereby guarantees the payment of the principal and interest of the foregoing Note, as and when the same shall become due, and any extension thereof, in whole or in part; the undersigned accepts all of its provisions; authorizes the maker, without notice to the undersigned, to obtain an extension or extensions in whole or in part, and the undersigned further waives protest, demand and notice of protest. In the case of non-payment of principal and interest *232 when due, action may be brought by the holder of this Note against the undersigned only if the holder has first exhausted all remedies available to it against the maker of this Note and against all collateral securing this Note. The undersigned further waives notice of acceptance of this guaranty.
The $95,000.00 promissory note contained the following language:
Payment of this Note is absolutely and unconditionally guaranteed by [TCI], which Guaranty is annexed hereto and made a part hereof, and as to which Guaranty [TCI] acknowledges receipt of full and ample consideration for its execution thereof.
The following North Carolina cases provide examples of the absolute and unconditional language required for a guaranty to be considered a guaranty of payment. See Credit Corp. v. Wilson, 281 N.C. 140, 187 S.E.2d 752 (1972); Investment Properties v. Norburn, 281 N.C. 191, 188 S.E.2d 342 (1972); Exxon Chemical Americas v. Kennedy, 59 N.C.App. 90, 295 S.E.2d 770 (1982); Gregory Poole Equipment Co. v. Murray, 105 N.C.App. 642, 414 S.E.2d 563 (1992). In Exxon, we said:
A guaranty of payment is an absolute promise by the guarantor to pay a debt at maturity if it is not paid by the principal debtor. This obligation is independent of the obligation of the principal debtor, `and the creditor's cause of action against the guarantor ripens immediately upon the failure of the principal debtor to pay the debt at maturity.'
Exxon, 59 N.C.App. at 92, 295 S.E.2d at 771 (quoting Gillespie v. DeWitt, 53 N.C.App. 252, 258, 280 S.E.2d 736, 741 (1981)).
Although the guaranty agreement in this case is entitled "Absolute and Unconditional," the agreement also provides that the note holder (plaintiff) must exhaust all remedies available against the maker of the note (TNC) before the guaranty by TCI becomes effective.
The nature and extent of the liability of a guarantor depends on the terms of the contract as construed by the general rules of construction. See Wachovia Bank Trust Co. v. Clifton, 203 N.C. 483, 166 S.E. 334 (1932). Since the guaranty agreement establishes unambiguously that a condition precedent must be met before TCI's liability attaches, the plaintiff is required to first exhaust all remedies it has available against TNC and against all collateral securing the note. Thus, the trial court erred in granting summary judgment in favor of the plaintiff and against TCI on the $95,000.00 note.
Defendants also argue that the trial court erred in awarding attorney's fees in the amount of fifteen percent of the outstanding balance without making findings to support the reasonableness of this amount.
In recent cases from this Court, R.C. Associates v. Regency Ventures, Inc. and Devereux Properties, Inc. v. BBM & W, Inc., the provisions allowing the award of attorney's fees did not stipulate a specific percentage range and thus did not require the trial court to determine a reasonable percentage. In those cases, the Court held that N.C.Gen. Stat. § 6-21.2(2) has determined that fifteen percent is a reasonable amount. See R.C. Associates v. Regency, 111 N.C.App. 367, 373, 432 S.E.2d 394, 397 (1993); Devereux Properties, Inc. v. BBM & W, Inc., 114 N.C.App. 621, 626, 442 S.E.2d 555, 558, disc. review denied, 337 N.C. 690, 448 S.E.2d 519 (1994).
However, in the earlier case of West End III Limited Partners v. Lamb, 102 N.C.App. 458, 402 S.E.2d 472, disc. review denied, 329 N.C. 506, 407 S.E.2d 857 (1991), the promissory note at issue, as does the present note, provided that "`[u]pon default the holder of this Note may employ an attorney to enforce the holder's rights ... and endorsers of this Note hereby agree to pay to the holder reasonable attorneys fees not exceeding a sum equal to fifteen percent (15%) of the outstanding balance.'" Id. at 459, 402 S.E.2d at 473. The Court remanded the case to the trial court so that it could make findings as to the actual hours expended collecting the debt owed to plaintiffs and the reasonable value of those services. Id. at 461, 402 S.E.2d at 475.
The Court in R.C. Associates distinguished West End under the following rationale:
*233 In those cases [West End ], the relevant contract provisions called for an award of attorney's fees in reference to a specific percentage of the amount owing. Thus, these awards fell under N.C.Gen.Stat. § 6-21.2(1) which requires the trial court to determine a reasonable percentage within the specified range. This determination necessarily requires some evidence of what percentage will be reasonable in each case, as West End and Coastal Production so state. However, subdivision (2) has predetermined that 15% is a reasonable amount in our case.
R.C. Associates, 111 N.C.App. at 373, 432 S.E.2d at 397. Thus, we reverse the award of attorney's fees and remand to the trial court for a determination of the attorney's fees to be awarded pursuant to N.C.Gen.Stat. § 6-21.2(1).
In summary, the order of the trial court granting summary judgment to plaintiff as against defendant TNC is affirmed. The order granting summary judgment to plaintiff as against defendant TCI is reversed. The order awarding attorney's fees as against both defendants is reversed and remanded.
Affirmed in part, reversed in part and remanded.
EAGLES and MARK D. MARTIN, JJ., concur.
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24 F.3d 240
U.S.v.Harris*
NO. 93-09104
United States Court of Appeals,Fifth Circuit.
May 20, 1994
1
Appeal From: N.D.Tex.
2
AFFIRMED.
*
Fed.R.App.P. 34(a); 5th Cir.R. 34.2
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259 P.3d 749 (2011)
BENEFICIAL MORTG. CORP.
v.
GIETZEN.
No. 104818.
Court of Appeals of Kansas.
September 16, 2011.
Decision Without Published Opinion
Affirmed.
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792 F.2d 146
253 U.S.App.D.C. 78, 58 A.F.T.R.2d86-5019, 86-1 USTC P 9429
CHURCH OF SCIENTOLOGY OF CALIFORNIA, Appellant,v.INTERNAL REVENUE SERVICE, et al.
No. 83-1856.
United States Court of Appeals,District of Columbia Circuit.
Argued April 11, 1984.Decided May 27, 1986.As Amended May 27, 1986.
Robert A. Seefried, Washington, D.C., for appellant.
Richard Wyndon Perkins, Atty., Dept. of Justice, with whom Glenn L. Archer, Jr., Asst. Atty. Gen., Joseph E. diGenova, U.S. Atty., Michael L. Paup and Stephen Gray, Attys., Dept. of Justice, Washington, D.C., were on brief, for appellees.
Before WRIGHT and SCALIA, Circuit Judges, and FRIEDMAN,* Circuit Judge of the United States Court of Appeals for the Federal Circuit.
Opinion for the Court filed by Circuit Judge SCALIA.
SCALIA, Circuit Judge:
1
This case arises out of the efforts of the Church of Scientology of California to obtain documents from the Internal Revenue Service under the Freedom of Information Act, 5 U.S.C. Sec. 552 (1982) ("FOIA"). It requires us to review the District Court's grant of summary judgment to the IRS on the adequacy of its response to the Church's FOIA request. To do so we must consider, among other things, the relation between FOIA and the provisions of the Internal Revenue Code that govern disclosure of return information, 26 U.S.C. Sec. 6103 (1982).
2
* On May 16, 1980 the Church sent a Freedom of Information request to the IRS. It comprises seven single-spaced typed pages and is extremely confused, but for purposes of this appeal it has been adequately summarized by the Church as essentially requesting:
3
1. All documents or records "relating to or containing the names of Scientology, Church of Scientology, any specific Scientology church or entity identified by containing the words Scientology, Hubbard and/or Dianetics in their names, L. Ron Hubbard or Mary Sue Hubbard," which could be located in a number of systems of records or files specifically identified in the FOIA request, "including but not limited to those located at the National Office, Regional Offices, Service Centers, District offices or Local IRS offices."
4
2. All documents generated, received or which otherwise came into the possession of the IRS subsequent to the preparation of an index in a tax case involving the Church of Scientology of California pending in the United States Tax Court, Church of Scientology of California v. Commissioner of IRS, 83 T.C. 381 (U.S.T.C.) [referred to below as the "Tax Court case"].
5
Brief for Appellants at 1-2.
6
The IRS's first response, dated July 22, 1980, requested additional time to "locate and consider releasing the Internal Revenue Service records to which you have requested access" and estimated that the Service would respond on August 29. On September 17, 1980, a response still not having been received, the Church filed an appeal to the Commissioner. After the IRS acknowledged but failed to respond to the appeal, the Church filed a complaint in the United States District Court for the District of Columbia on December 18, 1980 under 5 U.S.C. Sec. 552(a)(4)(B) (1982). In January 1981 the IRS finally responded to the Church's request with a letter. For the sake of simplicity, we will limit our summary of that response to those factors that have some bearing on the issues here.
7
The IRS noted that it had limited the scope of the Church's request to documents pertaining to the California Church because the Church had not provided authorizations from any other Scientology entity nor from the Hubbards. Geographically the Service had limited the search to the National Office, the Covington, Kentucky, office and the Los Angeles office. The IRS claimed that all documents relating to the Tax Court case not previously released were exempt from disclosure under Section 6103(e)(7) because disclosure would seriously impair Federal tax administration. It released in full some national office documents acquired subsequent to the Tax Court case index, but justified only partial release of other National Office documents on grounds that they were outside the scope of the appeal, that their disclosure would cause a clearly unwarranted invasion of privacy, see 5 U.S.C. Sec. 552(b)(6), or that they reflected return information of third parties, see 26 U.S.C. Sec. 6103(a).
8
After the IRS answered the complaint, the Church moved for an order requiring the IRS to prepare a Vaughn index of the withheld documents, see Vaughn v. Rosen, 484 F.2d 820 (D.C.Cir.1973), but the District Court denied the motion. Instead it ordered submission for in camera inspection of: (1) twenty-six documents located in the National Office which contained portions alleged to be exempt under 5 U.S.C. Sec. 552(b)(6) because their disclosure would constitute an unwarranted invasion of personal privacy; (2) three documents located at the National Office for which exemption was claimed under Section 6103(e)(7) because their disclosure would impair federal tax administration; and (3) all documents generated in connection with the Tax Court case.1 After in camera inspection of some 5,600 pages of documents, the District Court granted the IRS's motion for summary judgment and dismissed the action with prejudice in June 1983. The Church appealed. We have jurisdiction under 28 U.S.C. Sec. 1291 (1982).
II
9
The first issue we must address is the relation between FOIA and Section 6103. The Church argues that Section 6103 gives rise to an exemption from disclosure only under FOIA Exemption 3, 5 U.S.C. Sec. 552(b)(3), and subject to the procedural provisions of FOIA, including its de novo review requirement. The IRS urges us to affirm the District Court's holding that Section 6103 totally supersedes FOIA and provides the exclusive criteria for release of records affected by that section, so that courts must uphold any IRS refusal to disclose under Section 6103 that is not arbitrary or capricious and does not violate the other provisions of the Administrative Procedure Act.
10
The IRS relies principally on Zale Corp. v. IRS, 481 F.Supp. 486 (D.D.C.1979), which has been followed by the Sixth and Seventh Circuits, see White v. IRS, 707 F.2d 897, 900 (6th Cir.1983); King v. IRS, 688 F.2d 488, 495-96 (7th Cir.1982). We cannot agree with those decisions. FOIA is a structural statute, designed to apply across-the-board to many substantive programs; it explicityly accommodates other laws by excluding from its disclosure requirement documents "specifically exempted from disclosure" by other statutes, 5 U.S.C. Sec. 552(b)(3); and it is subject to the provision, governing all of the Administrative Procedure Act of which it is a part, that a "[s]ubsequent statute may not be held to supersede or modify this subchapter ... except to the extent that it does so expressly," 5 U.S.C. Sec. 559.2 We find it impossible to conclude that such a statute was sub silentio repealed by Sec. 6103. Insofar as is relevant to the issue here, the latter enactment does no more than what is done by all nondisclosure statutes covered by Exemption 3: it prohibits the disclosure of certain information (returns and return information). It differs from most other nondisclosure statutes only in that it specifies lengthy exceptions to its rule of nondisclosure. Not generally, but only in the painstaking detail of these exceptions, can it be considered--what Zale called it, 481 F.Supp. at 489--a "comprehensive scheme." But that sort of comprehensiveness has nothing to do with the appropriateness of continuing application of FOIA. Even the simplest nondisclosure statute, which makes no exceptions, is "comprehensive" in that sense--brief but comprehensive instead of lengthy and comprehensive. It would be another matter if Sec. 6103 established some rules and procedures--duplicating those of FOIA--for individual members of the public to obtain access to IRS documents. But it does not. The entirety of its "comprehensive" detail relates to exceptions from the prohibition of disclosure--and even all of these, with three minor exceptions, see Sec. 6103(k)(1), (3); Sec. 6103(m)(1), pertain to disclosure to specified private individuals (e.g., the taxpayer to whom the information relates) or government officials, rather than to the public at large. That is to be contrasted with Sec. 6110, enacted at the same time as Sec. 6103, which specifically requires that IRS written determinations be "open to public inspection," and establishes procedures to obtain and restrain disclosure, time limits, the level of assessable fees, and an action to compel or restrain disclosure in the Claims Court. That scheme is a "comprehensive" one in the relevant sense--that is, in the sense of duplicating and hence presumably replacing the dispositions of FOIA. (Significantly, Congress did not leave us to speculate whether it was comprehensive enough to constitute an implicit pro tanto repeal of FOIA; the last subsection specifies that the prescribed civil remedy in the Claims Court shall be the exclusive means of obtaining disclosure, Sec. 6110(l).)
11
From what has been said, it should be clear that we do not share Zale's concern over our "duty to reconcile" FOIA and Sec. 6103, 481 F.Supp. at 488, or over preventing FOIA from "negat[ing], supersed[ing], or otherwise frustrat[ing] the clear purpose and structure of Sec. 6103," id. at 489. The two statutes seem to us entirely harmonious; indeed, they seem to us quite literally made for each other: Section 6103 prohibits the disclosure of certain IRS information (with exceptions for many recipients); and FOIA, which requires all agencies, including the IRS, to provide nonexempt information to the public, establishes the procedures the IRS must follow in asserting the Sec. 6103 (or any other) exemption. Of course FOIA can loosely be said to "frustrate" the purposes of Sec. 6103 in that it places upon the IRS the burden of sustaining its claimed exemption in de novo judicial review. But if that sort of frustration requires the conclusion that Sec. 6103 must have been intended to supersede FOIA, then all subsequently enacted nondisclosure statutes supersede FOIA, and Exemption 3 has no application except to statutes already on the books when FOIA was passed--a state of affairs no one has suggested. For these reasons, and for some further reasons discussed in Judge Sirica's opinion in Britt v. IRS, 547 F.Supp. 808, 809-13 (D.D.C.1982), a decision of our district court subsequent to Zale and reaching the opposite conclusion, we hold, in agreement with the Fifth and Eleventh Circuits, that Section 6103 does not supersede FOIA but rather gives rise to an exemption under Exemption 3, 5 U.S.C. Sec. 552(b)(3). See Linsteadt v. IRS, 729 F.2d 998, 1001-03 (5th Cir.1984); Currie v. IRS, 704 F.2d 523, 526-28 (11th Cir.1983).
III
12
The Church objects to the IRS's decision not to search the files of its regional and district offices other than those in Los Angeles and Covington, Kentucky. FOIA requires agencies to make records available in response to any request "made in accordance with published rules stating the time, place, fees (if any), and procedures to be followed." 5 U.S.C. Sec. 552(a)(3)(B). The IRS does not have a central file of records in which copies of all documents in its possession are retained. Its regulations therefore require requests to be made to the office of the official who is responsible for the control of the records requested, or if the person making the request does not know the official responsible, to the office of the director of the IRS district office in the district where the requester resides. 26 C.F.R. Sec. 601.702(c)(3)(iii) (1984). The regulations specify in some detail which officials are responsible for documents and give their addresses. 26 C.F.R. Sec. 601.702(g).
13
It is undisputed that the Church did not direct its request to the officials in charge of the documents in regional and district offices, nor to the office of the director of the IRS district office in the district where the Church resides, but rather to the National Office of the IRS. The Service caused a search to be made of the records in its National Office, and in addition (though it was not technically required) of the records in the two field offices particularly pertinent to the Church's operations. In view of the statutory command that requests be made in accordance with published rules, the clarity of those rules, and the reasonableness of the IRS's treatment of the misdirected request, we find no merit in the Church's contention that the IRS's failure to inform it earlier that the request for a search of all district and regional offices was misdirected should have led the District Court to require a search of those offices.
IV
14
The Church also challenges the IRS's decision to limit the search to files whose titles refer to the California Church. That decision involved two separate but related limitations: (1) restricting the search to those files whose subjects indicate that their contents are related to Scientology, the Hubbards, etc., rather than searching through all files, whatever their subject, that might contain some information responsive to the request; and (2) restricting the search further to those files whose subject is the California Church on grounds that the information in all requested files on other Scientology organizations, the Hubbards, etc., is return information and therefore exempt from disclosure to the California Church.
15
The IRS justifies the first restriction on grounds that a request for all information on Scientology in its files fails to meet the statutory requirement of "reasonably describ[ing] such records," 5 U.S.C. Sec. 552(a)(3). It is firmly established that "an agency is not 'required to reorganize [its] files in response to [a plaintiff's] request in the form in which it was made.' " Goland v. CIA, 607 F.2d 339, 353 (D.C.Cir.1978) (quoting Irons v. Schuyler, 465 F.2d 608, 615 (D.C.Cir.), cert. denied, 409 U.S. 1076, 93 S.Ct. 682, 34 L.Ed.2d 664 (1972)). "[I]f an agency has not previously segregated the requested class of records production may be required only 'where the agency [can] identify that material with reasonable effort.' " Id. (quoting National Cable Television Association, Inc. v. FCC, 479 F.2d 183, 192 (1973)). Thus, the IRS would doubtless be within the law in restricting its search to files whose subjects indicate a connection with Scientology. It was not required to search through every file in its possession to see if a reference to Scientology appeared somewhere in it--for example, because a taxpayer claimed a deduction for a contribution to a Scientology organization. However, the problem at this stage of the litigation is that the District Court had only the IRS's generalized assertion that it had examined the appropriate subject files. Indeed, it did not have even that, because of the further limitation restricting the search to the California Church alone, which we will discuss below. In these circumstances, we cannot conclude that the agency sustained the burden of justifying its actions, see 5 U.S.C. Sec. 552(a)(4)(B), even with regard to the first limitation. Summary judgment on this point would require an affidavit reciting facts which enable the District Court to satisfy itself that all appropriate files have been searched, i.e., that further searches would be unreasonably burdensome. Such an affidavit would presumably identify the searched files and describe at least generally the structure of the agency's file system which makes further search difficult. Cf. Goland v. CIA, 607 F.2d at 352-53 (agency met its burden of proving that it made a full search in good faith with relatively detailed, nonconclusory affidavits).
16
But the first limitation was in any event superseded by the limitation to records of the California Church. The IRS does not appear to dispute that the Church's request reasonably describes information directly relating to some other Scientology organizations and contained in files whose titles would enable identification without undue burden. Its decision not to search these files appears to rest exclusively on grounds that they contain only return information protected by Section 6103.
17
The Church asserts that these grounds are patently inadequate, since (1) return information consists only of data that identify or can be associated with the taxpayer to whom they pertain, (2) FOIA's requirement that "reasonably segregable" portions of otherwise exempt documents must be provided, 5 U.S.C. Sec. 552(b), would mandate production of the data after redaction of material that enable identification or association, and (3) the possibility of redaction can only be assessed on a document-by-document basis. The crucial first premise of this argument has been considered by this court en banc and, by an opinion issued simultaneously with the present opinion, has been rejected. Church of Scientology v. IRS, 792 F.2d 153 (D.C.Cir. 1986)(en banc). The mere deletion of identifying material will not cause the remainder of the return information to lose its protected status, and document-by-document examination to determine the possibility of redaction for that purpose is therefore unnecessary.
18
This is still not sufficient, however, to sustain the IRS's bald contention that it need not search the file of any Scientology organization other than the California Church. That contention would be justified only if, as a matter of law, all information in IRS files is return information. That is unquestionably not so. Congress would not have adopted such a detailed definition of return information in Section 6103 if it had simply intended the term to cover all information in IRS files; and we have no authority to substitute the one disposition for the other. Here the Church requested, for example, information from Treas/IRS System Number 26.005, "File of Persons Making Threats of Force or Forcible Assaults." If such a files system exists, it seems unlikely that its contents consist entirely of return information as defined in Section 6103. In any case, before the IRS's claim that all information in the requested files is protected can be upheld, it must make an appropriate showing that all information comes within the statutory definition.
19
For the reasons just given, the District Court erred in accepting the IRS's blanket assertion that all information responsive to the Church's request in files not relating to the California Church was exempt from disclosure. This does not mean, however, that the IRS must, as the Church would have us hold, prepare a Vaughn index of all documents in its files relating to third parties for which it claims an exemption under Section 6103 and Exemption 3. See Vaughn v. Rosen, 484 F.2d at 826-29. If the IRS claims that a particular document is exempt from disclosure because it contains information on one of the specific subjects protected by Section 6103--for example, information about deductions claimed by a taxpayer--a Vaughn index may be required in order to show that the document does not contain segregable portions that could be disclosed without revealing such information. When, however, a claimed FOIA exemption consists of a generic exclusion, dependent upon the category of records rather than the subject matter which each individual record contains, resort to a Vaughn index is futile. Thus, in NLRB v. Robbins Tire & Rubber Co., 437 U.S. 214, 98 S.Ct. 2311, 57 L.Ed.2d 159 (1978), the Supreme Court upheld, without any provision of a Vaughn index, the Labor Board's refusal to provide under FOIA witness statements obtained in the investigation of pending unfair labor practice proceedings. A Vaughn index would have served no purpose since, as the Court held, Exemption 7(A), which excludes from required disclosure "investigatory records ... to the extent that the production of such records would ... interfere with enforcement proceedings," 5 U.S.C. Sec. 552(b)(7)(A), did not require a showing that each individual document would produce such interference, but could rather be applied generically, to classes of records such as witness statements. See also Campbell v. Department of Health and Human Services, 682 F.2d 256, 265 (D.C.Cir.1982) (government required to provide affidavits but not Vaughn index to establish applicability of Exemption 7(A)); Brinton v. Department of State, 636 F.2d 600, 606 (D.C.Cir.1980) (invocation of the deliberative process exclusion of Exemption 5 upheld on the basis of affidavits and no index); Mervin v. FTC, 591 F.2d 821, 826 (D.C.Cir.1978) (invocation of the attorney's work product exclusion of Exemption 5 upheld on the basis of affidavit and no index); Barney v. IRS, 618 F.2d 1268, 1272-74 (8th Cir.1980) (invocation of Exemption 7(A) upheld on the basis of affidavits and no index). If, therefore, the Commissioner's assertion of a Section 6103 exemption rests upon such generic grounds, he will ordinarily be able to make the requisite showing with an affidavit sufficiently detailed to establish that the document or group of documents in question actually falls into the exempted category. Some portions of Sec. 6103 are plainly susceptible of such generic application--particularly that portion which defines protected return information to include all information, no matter what its subject, "received by, recorded by, prepared by, furnished to, or collected by the Secretary with respect to a return or with respect to the determination of the existence, or possible existence, of liability (or the amount thereof) of any person ... for any tax, penalty, interest, fine, forfeiture, or other imposition, or offense," 26 U.S.C. Sec. 6103(b)(2)(A).
20
In light of the foregoing discussion, the IRS must either conduct a new search for information responsive to the Church's request that refers to third parties or establish through affidavits that all information about third parties in identifiable files requested by the Church is generically protected by Section 6103. If a new search produces any third party information responsive to the Church's request, the IRS must either disclose it or justify withholding it in light of one of the FOIA exemptions through affidavits and, where necessary, Vaughn indices.
21
The IRS's search uncovered a large number of documents responsive to the Church's request and relating specifically to the California Church. It claimed exemption for the majority of these documents--concretely the Tax Court case documents--on the ground that disclosure "would seriously impair Federal tax administration," 26 U.S.C. Sec. 6103(c). Selected portions of a much smaller group of documents not related to the Tax Court case were withheld under various FOIA exemptions because they contained personal information or third party return information, or because they exceeded the scope of the Church's request. The Court upheld the IRS's claim of exemption on the basis of in camera examination of a representative sample of the documents, without the benefit of detailed public affidavits or indices.4 While in camera, individual inspection of each of a small number of documents without detailed public affidavits and Vaughn indices is sometimes acceptable, see Currie v. IRS, 704 F.2d at 530-31, such an approach cannot be applied to large numbers of documents--much less to large numbers of documents that represent only a sampling. It places unrealistic and unsustainable demands upon the trial court and the reviewing appellate panel, and therefore must be replaced or supplemented by the adversary testing which public affidavits and indices seek to provide. See Vaughn v. Rosen, 484 F.2d at 825. With respect to these documents, therefore, the District Court should have required the IRS to sustain its burden of proving that the documents it sought to withhold were exempt from disclosure through an appropriate combination of detailed public affidavits and (if necessary) indices, resorting to in camera examination of documents and affidavits only where these proved inadequate. We note in this regard that the asserted exemption for documents whose disclosure "would seriously impair Federal tax administration," 26 U.S.C. Sec. 6103(c), is analogous to the exception at issue in Robbins, supra, for documents whose disclosure would "interfere with enforcement proceedings," 5 U.S.C. Sec. 552(b)(7)(A), and like that exemption should be sustainable generically, as applied to certain categories of documents, on the basis of affidavits and without Vaughn indices.
22
The order of the District Court is vacated and this case is remanded to the District Court for further proceedings consistent with this opinion. At the conclusion of such proceedings, the Church may renew its motion for an award of attorney fees if it so desires.
23
So ordered.
*
Sitting by designation pursuant to 28 U.S.C. Sec. 291(a)
1
In its opinion, Church of Scientology of California v. IRS, 569 F.Supp. 1165, 1171-72 (D.D.C. June 24, 1983), the court speaks of eight documents parts of which were withheld under the personal privacy exception, three documents parts of which were withheld because they dealt with third-party return information, and four documents parts of which were withheld because they were outside the scope of the plaintiff's request. The record does not explain the discrepancies between the number and type of documents ordered lodged in camera and the number and type of documents discussed in the court's opinion; but those discrepancies are not important for our disposition of this case
2
We do not suggest that an earlier Congress can limit the manner in which a later Congress may express its legislative acts. This provision, like any other, can presumably be repealed by implication. But it assuredly increases the burden that must be sustained before an intent to depart from the Administrative Procedure Act can be found
4
The District Court does mention that the IRS indexed twenty-one documents located in its National Office, but its opinion seems to suggest that the court relied entirely upon in camera examination. See Church of Scientology of California v. IRS, supra, at ---- - ----
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NUMBER 13-99-633-CR
COURT OF APPEALS
THIRTEENTH DISTRICT OF TEXAS
CORPUS CHRISTI
___________________________________________________________________
TOM JACOB OJEDA , Appellant,
v.
THE STATE OF TEXAS , Appellee.
___________________________________________________________________
On appeal from the 156th District Court
of Bee County, Texas.
____________________________________________________________________
O P I N I O N
Before Justices Hinojosa, Chavez, and Rodriguez
Opinion by Justice Rodriguez
On September 4, 1997, appellant, Tom Jacob Ojeda, entered a plea of guilty to the offense of bribery. See Tex. Pen.
Code Ann. § 36.02 (Vernon 1994). Having found the evidence substantiated appellant's guilt, the court deferred
adjudication and placed appellant on community supervision. In April 1999, the State filed a motion to revoke,
alleging numerous violations of the terms and conditions of appellant's community supervision. On July 29, 1999,
after a hearing on the State's motion, the court found appellant had violated the terms and conditions, and revoked
appellant's supervision. Appellant was sentenced to eight years incarceration, and assessed a $1500 fine. The court
suspended the sentence and placed appellant on eight years community supervision. Appellant filed a motion to
modify the terms and conditions of his supervision. On August 27, 1999, the court granted appellant's motion and gave
him permission to appeal the revocation of his community supervision and imposition of sentence. Appellant now
challenges the court's authority to modify. We affirm.
By his sole point of error, appellant contends the court had no authority to amend the old terms and conditions of
community supervision, absent a new finding of a violation at the August 27 hearing on his motion to modify.
Article 42.12 of the Texas Code of Criminal Procedure provides:
If after a hearing [on a motion to revoke] a judge continues or modifies community supervision after determining that
the defendant violated a condition of community supervision, the judge may impose any other conditions the judge
determines are appropriate. . . .
Tex. Code Crim. Proc. art. 42.12, § 22(a) (Vernon Supp. 2000). While appellant correctly argues that article 42.12
requires a hearing and the finding of a violation before modification, his argument is not persuasive in this case. Our
review of the record reveals that the court did not modify the old terms and conditions, but simply restated them.
The August order provides "the terms [of supervision] are modified to read as those contained in conditions of
Community Supervision filed with the clerk on July 29th, 1999." Further, at the August hearing, the judge stated that
he had "now amended his old terms and conditions to read as those terms and conditions that were filed on July the
29th." The judge also commented that he wanted appellant to get "some drug treatment and take care of his drug
problem" at the "Substance Abuse Treatment Facility and Restitution Center," a condition previously included in the
July community supervision conditions. Appellant's motion to modify requested treatment, if necessary, at a
non-institutional facility paid for by his private insurance. Accordingly, we conclude that, although the court granted
appellant's motion, the terms and conditions filed following the July hearing were not modified by the August order.
Thus, a finding of a new violation was not necessary. Appellant's sole point of error is overruled.
Appellant's court-appointed counsel filed a brief in which she informed this Court she studied the transcript of the
hearing on the motion to revoke and has found no clear error which was preserved for appeal. Other than the one
arguable error which we have now reviewed, counsel concluded there is no other error upon which a nonfrivolous
appeal might be based.
Appellant's brief meets the requirements of Anders v. California, 386 U.S. 738, 744-45 (1967), in that counsel
presented a professional evaluation of the record demonstrating why there are no other arguable grounds of error on
appeal. See High v. State, 573 S.W.2d 807, 812 (Tex. Crim. App. 1978). She referred this Court to the only error in
the record that might arguably support the appeal. See Anders, 386 U.S. at 744. Counsel certified in her brief that she
served appellant with a copy of the brief in which she informed appellant of his right to examine the record for the
purposes of filing any pro se actions he might feel appropriate under the circumstances. Thirty days have passed since
appellant was so advised, and he has not filed a pro se brief.
In Penson v. Ohio, 488 U.S. 75 (1988), the Supreme Court advised appellate courts that upon receiving a "frivolous
appeal" brief, they must conduct "a full examination of all the proceeding[s] to decide whether the case is wholly
frivolous." We have carefully reviewed the record and, finding nothing that would arguably support an appeal, agree
that the appeal is wholly frivolous and without merit. See Stafford v. State, 813 S.W.2d 503, 509 (Tex. Crim. App.
1991). The judgment of the trial court is AFFIRMED.
Additionally, in accordance with Anders, counsel has requested permission to withdraw as counsel for appellant. See
Anders, 386 U.S. at 744. We grant appellant's attorney's motion to withdraw. Furthermore, we order her to notify
appellant of the disposition of his appeal and of the availability of discretionary review. See Ex parte Wilson, 956
S.W.2d 25, 27 (Tex. Crim. App. 1997).
NELDA V. RODRIGUEZ
Justice
Do not publish. Tex. R. App. P. 47.3.
Opinion delivered and filed
this the 8th day of June, 2000.
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195 F.2d 325
HOLLAND-RANTOS CO., Inc.v.HENRY LABORATORIES, Inc.
Patent Appeal No. 5846.
United States Court of Customs and Patent Appeals.
March 18, 1952.
Edward G. Roe, New York City, for appellant.
A. Yates Dowell, Washington, D. C., for appellee.
Before GARRETT, Chief Judge, and JACKSON, O'CONNELL, JOHNSON, and WORLEY, Judges.
JACKSON, Judge.
1
On February 16, 1948, appellee filed an application for registration of its trademark for "Douche Powder For Feminine Hygiene," serial No. 549,804. On January 27, 1949, appellant filed its notice of opposition to the registration.
2
Neither party took testimony but both filed briefs and were present at the hearing.
3
The mark sought to be registered is composite in character in which the letters "H. L." appear within an equilateral triangle, the top side of which is in a horizontal position. A shadow is cast from the triangle on the left side thereof and the words "Feminine Hygiene" in script are written across the lower part of the triangle below which is the word "Powder" also in script. The words are disclaimed apart from the mark, as shown.
4
In its notice of opposition, appellant relies upon its mark "H R," registration No. 505,674, dated January 18, 1949, as applied to "Vaginal Jelly." The composite mark of appellant shows those letters in block form beneath a diamond-shaped figure, the top of the letters being contiguous to the bottom lines of the diamond.
5
It has not been denied that appellant is the prior user of its mark.
6
The Examiner of Interferences in his decision held that by reason of the close relationship of the goods of the parties confusingly similar marks when used simultaneously upon those products would prevent the registration sought.
7
It was contended by appellee that a comparison of the marks shows that there can be no possibility of confusion by reason of the letters in its mark and the differently formed design appearing thereon.
8
The examiner agreed with the contention of appellant that the dominant features of the two marks are the letters "H R" and "H. L." respectively.
9
It was his opinion that the triangle appearing in one mark and the diamond-shaped design in the other was not sufficient to eliminate confusion which was likely to arise from the use of what the examiner held to be the dominant features. The examiner compared the marks herein with those which appeared in R. C. Williams & Company, Inc., v. Wyandotte Chemicals Corporation, 69 USPQ 410; and those in the case of West Disinfecting Company v. Owen, 165 F.2d 450, 35 C.C. P.A., Patents, 843, stating that the letters appearing on the marks of the parties herein are as confusingly similar as those which appeared in the two cited cases. He further cited the case of Crystal Corporation v. Manhattan Chemical Mfg. Co., Inc., 75 F.2d 506, 508, 22 C.C.P.A., Patents, 1027, in which it was said that "We think the weight of the authorities strengthens the conclusion that appellant is entitled to a monopoly of a lettered trade-mark for baby powder to the extent that no newcomer has the right to adopt any lettered trade-mark which, by reason of similarity, would produce confusion." The opposition was sustained by the Examiner of Interferences.
10
The Examiner-in-Chief agreed that the involved products are too closely related to permit the registration of the same or confusingly similar marks. He also stated that the different forms of the respective products would only increase, rather than lessen, likelihood of confusion as to origin if the same or confusingly similar marks were used by the parties.
11
The Examiner-in-Chief disagreed with the decision of the Examiner of Interferences with respect to the similarity of the marks. He noted that the examiner was of opinion that the letters appearing in the marks are the dominant features of them, but stated that the examiner paid no attention to the designs. He held the involved designs not to be so subordinate that they should be disregarded when the letters are not identical. Therefore, he concluded that the letters in appellant's mark were formed so as to constitute an integral part of the whole design, and, as set out, are not remotely similar to the mark of appellee.
12
The Examiner-in-Chief discussed the West Disinfecting Company case, supra; the Crystal Corporation case, supra; and the R. C. Williams Co. case, supra, and was of opinion that those cases did not involve situations similar to the issue presented in this case where there is but one letter in common to the two marks and each mark includes a design different from the others.
13
From the decision of the Examiner-in-Chief this appeal was taken.
14
We do not think it necessary to reexamine our often pronounced holding that precedents in trade-mark cases are of very little, if any, importance in litigation such as this.
15
We have no doubt but that a visual examination of the respective marks shows that they are entirely dissimilar. It is obvious that the letters do not look alike, nor sound alike, and when taken as they should be in connection with the designs, we do not find sufficient similarity to justify a holding that there would be likelihood of confusion to the trade. Furthermore, it appears to us that from the nature of the products of the parties and the use to which they are put, purchasers would be extremely circumspect in their choice.
16
We find no error in the decision of the Examiner-in-Chief and therefore the decision appealed from is affirmed.
17
Affirmed.
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639 F.2d 791
U. S.v.Thompson
80-1126
UNITED STATES COURT OF APPEALS Ninth Circuit
2/4/81
1
D.Or.
AFFIRMED
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Slip Op. 16-
UNITED STATES COURT OF INTERNATIONAL TRADE
____________________________________
:
FOSHAN SHUNDE YONGJIAN :
HOUSEWARES & HARDWARE :
CO., LTD., and POLDER, INC., :
:
Plaintiffs, :
:
v. :
: Before: Richard K. Eaton, Judge
UNITED STATES, :
: Court No. 10-00059
Defendant, :
:
and :
:
HOME PRODUCTS INTERNATIONAL, :
INC., :
:
Defendant-Intervenor. :
____________________________________:
OPINION
[The United States Department of Commerce’s Final Results of Redetermination are sustained.]
Dated: April 7, 2016
William E. Perry, Dorsey & Whitney LLP, of Seattle, WA, argued for plaintiffs. With
him on the brief was Emily Lawson.
Michael D. Snyder, Trial Attorney, Commercial Litigation Branch, Civil Division, United
States Department of Justice, of Washington, DC, argued for defendant. With him on the brief
were Joyce R. Branda, Acting Assistant Attorney General, Jeanne E. Davidson, Director, and
Patricia M. McCarthy, Assistant Director. Of counsel on the brief was Aman Kakar, Attorney,
Office of the Chief Counsel for Trade Enforcement & Compliance, United States Department of
Commerce, of Washington, DC.
Frederick L. Ikenson, Blank Rome LLP, of Washington, DC, argued for defendant-
intervenor. With him on the brief was Larry Hampel.
Court No. 10-00059 Page 2
EATON, Judge: Before the court is the United States Department of Commerce’s
(“Commerce” or “the Department”) Third Final Results of Redetermination Pursuant to Court
Remand pertaining to the fourth administrative review of the antidumping duty order covering
floor-standing metal-top ironing tables and certain parts thereof from the People’s Republic of
China (“PRC”). See Final Results of Redetermination Pursuant to Ct. Remand (Dep’t of
Commerce Oct. 10, 2014) (ECF Dkt. No. 143) (“Third Remand Results”). On this third remand,
Commerce was directed to either (1) properly corroborate1 the secondary information it relied
upon in assigning plaintiff Foshan Shunde Yongjian Housewares and Hardware Co., Ltd.
(“Foshan Shunde” or “plaintiff”), and its importer of record, Polder, Inc., an antidumping duty
rate of 157.68 percent based on adverse facts available (“AFA”), or (2) determine a new rate for
plaintiff that is supported by substantial evidence and is in accordance with law. See Foshan
Shunde Yongjian Housewares & Hardware Co. v. United States (Foshan Shunde III), 38 CIT __,
1
During the pendency of this case, the Trade Preferences Extension Act of 2015
was signed into law, which, among other things, amends the corroboration requirement under 19
U.S.C § 1677e. See Pub. L. No. 114-27, 129 Stat. 362 (2015). Specifically, § 502 of the Act
modifies the provisions pertaining to the selection and corroboration of AFA rates. As is
relevant here, the revised corroboration requirement under § 1677e(c) now contains an exception
under which Commerce is not “required to corroborate any dumping margin . . . applied in a
separate segment of the same proceeding.” 19 U.S.C § 1677e(c)(2) (2015). In addition, the Act
provides that when Commerce uses AFA, it “may . . . use any dumping margin from any
segment of the proceeding under the applicable antidumping order . . . including the highest such
rate or margin.” Id. § 1677e(d)(1)–(2). Further, for purposes of corroborating an AFA rate,
Commerce is no longer required “to estimate what the . . . dumping margin would have been if
the interested party found to have failed to cooperate . . . had cooperated,” or “to demonstrate
that the . . . dumping margin used by [Commerce] reflects an alleged commercial reality of the
interested party.” Id. § 1677e(d)(3). As the Federal Circuit recently noted, however, “the
amendments do not apply to final determinations that Commerce made prior to the date of
enactment.” Nan Ya Plastics Corp. v. United States, 810 F.3d 1333, 1337 n.2 (Fed. Cir. 2016)
(citing Ad Hoc Shrimp Trade Action Comm. v. United States, 802 F.3d 1339, 1348–52 (Fed. Cir.
2015)); see also Fresh Garlic Producers Ass’n v. United States, 39 CIT __, __, Slip Op. 15-133,
at 31 (Nov. 30, 2015) (“To apply § 502 on remand would be in effect to apply the law
retroactively by applying it to a determination that occurred before the new law became
effective.”).
Court No. 10-00059 Page 3
__, 991 F. Supp. 2d 1322, 1334–35 (2014). In the Third Remand Results, because Commerce
determined it was unable to identify additional information to corroborate the previously-
assigned rate, it assigned, under protest, a duty rate of 72.29 percent to Foshan Shunde, which
was the rate assigned to the separate-rate companies in the underlying less-than-fair-value
investigation (“the Investigation”). Third Remand Results at 2.
Plaintiff and defendant-intervenor, Home Products International, Inc. (“HPI” or
“defendant-intervenor”), object to the 72.29 percent duty rate. Foshan Shunde argues the
Department failed to corroborate the new rate and that it does not reflect the company’s
commercial reality. Comments on Third Remand Results 7–9 (ECF Dkt. No. 151) (“Pl.’s
Cmts.”). HPI, on the other hand, insists the 157.68 percent duty rate previously assigned to
Foshan Shunde was corroborated to the extent practicable, and that the new rate is inconsistent
with the court’s remand order, unsupported by substantial evidence, and not in accordance with
law. See Comments of HPI on the Third Remand Results 2 (ECF Dkt. No. 147) (“Def.-Int.’s
Cmts.”). For the reasons set forth below, Commerce’s Third Remand Results are sustained.
BACKGROUND
I. THE FINAL RESULTS
In 2004, Commerce issued an antidumping duty order covering floor-standing metal-top
ironing tables and certain parts thereof from the PRC (“subject merchandise”). See Floor-
Standing, Metal-Top Ironing Tables & Certain Parts Thereof From the PRC, 69 Fed. Reg.
35,296 (Dep’t of Commerce June 24, 2004) (notice of final determination of sales at less than
fair value); Floor-Standing, Metal-Top Ironing Tables and Certain Parts Thereof From the PRC,
69 Fed. Reg. 47,868 (Dep’t of Commerce Aug. 6, 2004) (notice of amended final determination
of sales at less than fair value and antidumping duty order) (collectively, “the Order”). The final
Court No. 10-00059 Page 4
results of the fourth administrative review of the Order, covering the period of review (“POR”)
August 1, 2007 through July 31, 2008, were issued on January 20, 2010. See Floor-Standing,
Metal-Top Ironing Tables and Certain Parts Thereof From the PRC, 75 Fed. Reg. 3,201 (Dep’t
of Commerce Jan. 20, 2010) (final results of antidumping duty administrative review), and the
accompanying Issues & Decision Memorandum (collectively, the “Final Results”).
In the Final Results, Commerce identified certain deficiencies in Foshan Shunde’s
questionnaire responses related to the company’s factors of production and sales information,
and therefore disregarded those submissions. In light of these inadequacies, the Department
applied AFA when selecting from among the available facts,2 and thus drew inferences adverse
to Foshan Shunde as to its reported factors of production and sales data. In addition, Commerce
used these deficiencies as a basis to disregard the information Foshan Shunde offered to
demonstrate its independence from the PRC government.3 Accordingly, Commerce determined
Foshan Shunde was not entitled to a separate rate, and therefore assigned the PRC-wide rate of
2
“If Commerce finds that a respondent has ‘failed to cooperate by not acting to the
best of its ability to comply with a request for information,’ the statute permits the agency to
draw adverse inferences commonly known as ‘adverse facts available’ when selecting from
among the available facts.” Nan Ya Plastics, 810 F.3d at 1338 (quoting 19 U.S.C. § 1677e(b)
(2006)).
3
In reviews involving merchandise from a non-market economy country, such as
the PRC, Commerce presumes all respondents are government-controlled, and therefore subject
to a single country-wide duty rate. Ad Hoc Shrimp, 802 F.3d at 1353. “Respondents may rebut
this presumption and become eligible for a separate rate by establishing the absence of both de
jure and de facto government control. If a respondent fails to establish its independence,
Commerce relies upon the presumption of government control and applies the country-wide rate
to that respondent.” Id. (citation omitted).
Court No. 10-00059 Page 5
157.68 percent4 to the company. See Foshan Shunde Yongjian Housewares & Hardware Co. v.
United States (Foshan Shunde I), 35 CIT __, __, Slip Op. 11-123, at 4–5 (Oct. 12, 2011).
In Foshan Shunde I, the court sustained Commerce’s determination to apply AFA as to
Foshan Shunde’s factors of production and sales data, but remanded the case for the Department
to reexamine the facts surrounding the company’s separate-rate status and the duty rate applied
to the company. Id. at __, Slip Op. 11-123, at 40–42.
II. THE FIRST REMAND RESULTS
In its First Results of Redetermination Pursuant to Court Order (“First Remand Results”),
the Department determined that Foshan Shunde was entitled to a separate rate, but it could not
determine such a rate because the record did not contain reliable information regarding plaintiff’s
factors of production and sales data. See First Remand Results at 1 (Dep’t of Commerce June
11, 2012) (ECF Dkt. No. 71). Relying on its finding in the Final Results that Foshan Shunde
failed to cooperate to the best of its ability with the Department’s requests for information, as
affirmed by the court in Foshan Shunde I, Commerce again assigned the rate of 157.68 percent
based on AFA. Id. at 1, 3–7. The Department asserted this determination was supported by
substantial evidence and in accordance with law because: (1) it was based upon secondary
information that was corroborated; (2) the assigned rate was “an individually calculated rate for a
cooperative respondent in the investigation”; (3) the rate “ha[d] been used repeatedly as the rate
assigned to the [PRC]-wide entity representing the rate for the industry”; and (4) data from the
United States Customs and Border Protection Agency (“Customs”) included imports of subject
4
The 157.68 percent duty rate was the highest rate selected for a cooperating
respondent during the Investigation. The other rates assigned during the Investigation were 9.47
percent and 72.29 percent. Foshan Shunde III, 38 CIT at __, __ n.3, 991 F. Supp. 2d at 1325,
1325 n.3.
Court No. 10-00059 Page 6
merchandise into the United States during the POR (the “Customs Data”) made by market
participants who were subject to the 157.68 percent duty rate. Id. at 8–9.
In Foshan Shunde II, the court sustained both the Department’s determination that
Foshan Shunde was entitled to a separate rate, as well as its use of AFA in selecting that rate.
See Foshan Shunde Yongjian Housewares & Hardware Co. v. United States (Foshan Shunde II),
37 CIT __, Slip Op. 13-47 (Apr. 8, 2013). The court held, however, that Commerce had not
sufficiently corroborated the secondary information it used to assign the duty rate. Id.
Specifically, the court found that simply repeating the assignment of a duty rate, calculated
during an underlying investigation, does not constitute adequate corroboration for assigning that
rate as AFA to a specific respondent in subsequent reviews. Id. at __, Slip Op. 13-47, at 9 (citing
19 U.S.C. § 1677e(c) (2006); 19 C.F.R. § 351.308(d) (2008)).
As to the Department’s claim that the 157.68 percent duty rate was corroborated because
other importers had made entries while subject to this rate during the POR, the court stated that,
in general, information from Customs is an appropriate independent source to corroborate
secondary information. Id. at __, Slip Op. 13-47, at 11. The court further found, however, that
the specific Customs Data relied upon by the Department in this case was lacking. Id. at __, Slip
Op. 13-47, at 11–13. Specifically, the court found the claimed relevance of the Customs Data to
Foshan Shunde’s commercial reality was not supported by substantial evidence because, among
other things, nothing on the record expressly identified the entries in the Customs Data as entries
of subject merchandise. Id. at __, Slip Op. 13-47, at 12–13. Accordingly, the court instructed
Commerce on remand to supplement the record with additional information or to further explain
why the Customs Data constituted substantial evidence that corroborated the secondary
information it relied upon in assigning Foshan Shunde’s AFA rate. Id. at _, Slip Op. 13-47, at
14.
Court No. 10-00059 Page 7
III. THE SECOND REMAND RESULTS
In the Second Final Results of Redetermination Pursuant to Court Remand (“Second
Remand Results”), the Department again applied AFA in assigning Foshan Shunde a duty rate of
157.68 percent, continuing to use the Investigation rate as secondary information. Second
Remand Results at 1 (Dep’t of Commerce July 8, 2013) (ECF Dkt. No. 111). To corroborate the
rate, the Department again relied solely on the Customs Data as its independent source. Id. at 6–
8. In doing so, Commerce limited itself to the record evidence and concluded the selected rate
was “to the extent practicable corroborated by information from independent sources pursuant to
19 U.S.C. § 1677e(c).” Id. at 1. In particular, the Department stated that the available
“information from independent sources is limited to the Customs data”; that “[n]o average unit
value or price list data is on the record of this proceeding”; and that it “has identified no other
independent sources beyond these Customs data that could assist the Department in determining
the probative value of the 157.68 percent AFA rate assigned to Foshan Shunde.” Id. at 5.
As to the court’s instruction to explain the relevance of the Customs Data to Foshan
Shunde, Commerce asserted: (1) the rate is relevant to Foshan Shunde because it “had already
been calculated in a prior segment of the proceeding at the time Foshan Shunde took the risk of
providing unusable data to the Department in this review,” id. at 6 (“Foshan Shunde’s actions
demonstrate that it preferred to avoid providing to the Department the necessary information for
calculating its true margin. . . . Foshan Shunde knowingly chose to [accept the] risk” of
receiving the selected rate and, thus, the selected “rate is relevant to Foshan Shunde by virtue of
its choice not to cooperate.”); and (2) the entries in the Customs Data show that some market
participants had imported subject merchandise at the 157.68 percent rate, including one entry of
a large value by an alleged affiliate of Foshan Shunde. Id. at 7–9; see also Foshan Shunde III, 38
CIT at __, 991 F. Supp. 2d at 1327 (“Taken as a whole, it is the Department’s position that the
Court No. 10-00059 Page 8
liquidation rate of these entries tends to prove that Foshan Shunde could, and did, do business in
subject merchandise during the POR while its products were subject to the 157.68 percent
rate.”).
In Foshan Shunde III, the court held that the Department again failed to demonstrate the
relevance of the Customs Data to Foshan Shunde, and did not adequately explain why
corroboration was not practicable in this case. Id. at __, 991 F. Supp. 2d at 1329–34. The court
noted that Commerce chose not to reopen the record to obtain additional information to
corroborate the 157.68 percent duty rate, but, rather, continued to rely on the Customs Data
alone. Id. at __, 991 F. Supp. 2d at 1329–30. The court therefore concluded, “[b]ased on the
existing record, . . . Commerce’s explanation as to why it has sufficiently corroborated the
assignment of the 157.68 percent rate is unconvincing.” Id. at __, 991 F. Supp. 2d at 1330.
First, the court found “the Department’s assertion that the rate is automatically relevant as
a result of Foshan Shunde’s failure to comply with the Department’s request for information” to
be “little more than a new attempt to satisfy the corroboration requirement with a modified form
of the Rhone Poulenc presumption.”5 Id. at __, 991 F. Supp. 2d at 1330 (citing Rhone Poulenc,
Inc. v. United States, 899 F.2d 1185 (Fed. Cir. 1990)). The court explained that Rhone Poulenc,
a pre-Uruguay Round Agreements6 case, permitted Commerce “to infer that the highest prior
5
The court further noted that “this Court has previously rejected attempts to
‘dispense with [the] corroboration requirement by employing the Rhone Poulenc presumption’
and it does so again now.” Foshan Shunde III, 38 CIT at __, 991 F. Supp. 2d at 1330 (quoting
Tianjin Mach. Imp. & Exp. Corp. v. United States, 35 CIT __, __, 752 F. Supp. 2d 1336, 1348
(2011)). In any case, the court had already rejected the application of the Rhone Poulenc
presumption in Foshan Shunde II. See Foshan Shunde II, 37 CIT at __ n.4, Slip Op. 13-47, at 10
n.4 (“This is not a case where the Rhone Poulenc presumption that the highest prior margin is
probative applies.”).
6
As explained in Foshan Shunde III, because Rhone Poulenc was decided prior to
the Uruguay Round Agreements, “it reflect[s] the state of the law prior to the enactment of the
(footnote continued)
Court No. 10-00059 Page 9
margin of a particular respondent was the most probative evidence of that party’s rate when the
respondent failed to answer the Department’s questionnaires.” Id. (citing Rhone Poulenc, 899
F.2d at 1190 (“[I]t reflects a common sense inference that the highest prior margin is the most
probative evidence of current margins because, if it were not so, the importer, knowing of the
rule, would have produced current information showing the margin to be less.”)). The court
explained that the application of this presumption within the current statutory framework is
limited “to situations where (1) the rate used was calculated in a prior review segment for the
party now failing to cooperate, and (2) the party failing to cooperate did not respond to the
Department’s questionnaires in any way,” neither of which occurred in this case. Id. at __, 991
F. Supp. 2d at 1331.
Second, the court found Commerce’s determination that the Customs Data represented
subject merchandise was not supported by substantial evidence. Id. at __, 991 F. Supp. 2d at
1331–32 (“The Department . . . only points to the liquidation rate of the entries, and that some
entries were made by Foshan Shunde and a Foshan Shunde affiliate, as evidence to corroborate
the 157.68 percent rate. Notably absent from Commerce’s analysis, however, is any direct
evidence that the entries were classified under the [tariff] heading for ironing tables, or any
assertion that no other products imported during the POR [(i.e., products other than subject
merchandise)] were liquidated at the 157.68 percent rate.”). In other words, the court rejected
the Department’s attempt to use the 157.68 percent rate to show the Customs Data represents
entries of subject merchandise, and is therefore relevant to Foshan Shunde, observing “the only
Act that implemented the Agreements’ negotiated terms.” Tianjin Mach., 35 CIT at __, 752 F.
Supp. 2d at 1347. Specifically, part of the Uruguay Round Agreements Act requires “Commerce
to make additional findings in AFA cases,” such as corroborating secondary information used for
AFA rates under 19 U.S.C. § 1677e(c). Id. at __, 752 F. Supp. 2d at 1348. Thus, Rhone Poulenc
“necessarily did not hold that the presumption could replace actual corroboration.” Id.
Court No. 10-00059 Page 10
record support of the relevance of the rates in the Customs Data are the rates themselves.” Id. at
__, 991 F. Supp. 2d at 1332. That is, just because the Customs Data may have included entries
made by Foshan Shunde, such entries were not necessarily of subject merchandise. In addition,
liquidation rates, which are unknown to importers at the time of entry, do not reveal much about
the relevance of a particular AFA rate to a specific respondent. See id. at __, 991 F. Supp. 2d at
1328 (agreeing “that, because the 157.68 percent rate was imposed on domestic importers at
liquidation and those importers were unaware of what their ultimate rate would be at the time
they imported the goods, the rate was not corroborated by the [liquidation rates]. That is, for
[Foshan Shunde], because the 157.68 percent rate was imposed months after importation, the rate
can not be said to represent any importer’s or exporter’s commercial reality during the POR”).
As to the practicability of corroborating the selected AFA rate, the court found the
Department made “no mention of what other independent sources it attempted to identify” in
support of its conclusion that corroboration was impracticable in this case. Id. at __, 991 F.
Supp. 2d at 1333. Indeed, the court stated:
Where the Department states that it has been unable to identify independent
sources to corroborate its selected secondary information, without more, the
reasonable conclusion to be drawn under the statute is not that corroborating its
selected secondary information is “not practicable.” Rather, the reasonable
conclusion is that Commerce’s selected secondary information is not probative
and that the Department should rethink its selection of that secondary information.
Id. at __, 991 F. Supp. 2d at 1333–34. The court also clarified that it is Commerce’s
responsibility to locate independent sources to corroborate secondary information used in
selecting AFA rates: “Congress placed the obligation to corroborate secondary information using
independent sources on the Department, not on the interested parties who are normally
responsible for generating the administrative record.” Id. at __, 991 F. Supp. 2d at 1329.
Court No. 10-00059 Page 11
The court further noted the statute’s “to the extent practicable” limitation “was intended
to permit the Department to rely on relevant independent sources whose data is ‘reasonably at
[its] disposal,’” and neither the statute nor this Court require “the Department to go to
extraordinary lengths to corroborate secondary information where the record is deficient.” Id. at
__, 991 F. Supp. 2d at 1334 (quoting 19 U.S.C. § 1677e(c)). Here, however, the court did not
allow the Department “to rely solely on a claimed absence of corroborating independent
information to support its conclusions without an explanation,” but required Commerce to “seek
relevant independent sources to corroborate its secondary information, and if it [could not] locate
such information, . . . describe the steps that it has taken so that a reviewing Court can determine
if the Department’s finding that corroboration was not practicable is supported by substantial
evidence and in accordance with law.” Id. at __, 991 F. Supp. 2d at 1334.
In sum, five holdings can be found in the remands in this case: (1) “the decision in Rhone
Poulenc ‘necessarily did not hold that the presumption could replace actual corroboration,’” and
the presumption’s use is limited to situations where the rate “was calculated in a prior review
segment for the party now failing to cooperate” and the uncooperative party failed to respond to
the Department’s questionnaires altogether, id. at __ n.7, __, 991 F. Supp. 2d at 1330 n.7, 1331;
(2) evidence that a respondent’s merchandise was liquidated at a particular rate is not probative
of its commercial reality unless it can be shown that the entries were of subject merchandise, see
id. at __, 991 F. Supp. 2d at 1331–32; (3) because at the time of importation importers are
unaware of what their ultimate liquidation rates will be, liquidation rates are not probative of an
importer’s commercial reality during the POR, see id. at __, 991 F. Supp. 2d at 1328; (4) it is
Commerce’s “obligation to corroborate secondary information using independent sources” and
build the record for that purpose, “not . . . the interested parties who are normally responsible for
generating the administrative record,” id. at __, 991 F. Supp. 2d at 1329; and (5) the Department
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may not simply rely on a claimed absence of independent information to support its conclusion
that corroboration is impracticable: “Rather, the Department must still seek relevant independent
sources to corroborate its secondary information, and if it cannot locate such information, it must
describe the steps that it has taken so that a reviewing Court can determine if the Department’s
finding that corroboration was not practicable is supported by substantial evidence and in
accordance with law,” id. at __, 991 F. Supp. 2d at 1334 (emphasis added).
Accordingly, the court again remanded the case, instructing Commerce, if it continued to
assign the 157.68 percent rate, to reopen “the record and make all reasonably practicable efforts
to identify independent sources reasonably at its disposal that bear on the relevance of the 157.68
percent rate to Foshan Shunde” or, if it was unable to do so, to “explain what independent
sources it considered and why those sources contained no relevant information.” Id. at __, 991
F. Supp. 2d at 1334–35. In addition, if Commerce declined to assign the 157.68 percent rate, the
court ordered the Department to “determine a separate rate for Foshan Shunde that is supported
by substantial evidence and in accordance with law.” Id. at __, 991 F. Supp. 2d at 1335.
IV. THE THIRD REMAND RESULTS
In the Third Remand Results, now before the court, the Department stated it “found no
additional information to potentially corroborate an AFA rate for Foshan Shunde beyond the
Customs [D]ata that were examined in the [First and Second Remand Results].” Third Remand
Results at 2. Specifically, in an attempt to corroborate the 157.68 percent rate, “the Department
opened the record, searched for independent sources that would bear on the relevance of 157.68
percent rate, but found no additional statistical data from an independent source that may
represent Foshan Shunde’s ‘commercial reality,’ or that would otherwise bear on the relevance
of the 157.68 percent rate.” Id. at 7, 7 n.36 (The Department “searched the internet in an attempt
Court No. 10-00059 Page 13
to find any ‘primary information’ that is contemporaneous with the [POR] and could address the
commercial reality concerns identified by the Court. [It] found no relevant information. [It] also
re-examined the record to determine whether any additional Customs data had been overlooked.
None was. [It] also considered whether any additional Customs data might be useful, but could
not identify any additional Customs data or sources reasonably at the Department’s disposal.”).
In addition, Commerce noted that “information concerning Foshan Shunde’s U.S. sales and
factors of production data is unavailable. Thus, given Foshan Shunde’s failure to provide usable
U.S. sales and factors of production data, the Department cannot determine a ‘commercial
reality’ specific to Foshan Shunde.” Id. at 6. Thus, Commerce assigned, under protest, a revised
AFA rate of 72.29 percent, which is the weighted average of the rates calculated for the two
mandatory respondents in the Investigation (i.e., 157.68 percent and 9.47 percent). Id. at 2, 10.
As to its selection of the 72.29 percent rate, the Department “looked to other rates that
may be considered for use as AFA,” but found “other rates calculated in the history of this
proceeding . . . would similarly fail to qualify as a potential source for AFA given the criteria set
forth by the Court in Foshan Shunde III.” Id. at 8. In particular, Commerce asserts:
The only calculated, non-AFA rate specific to Foshan Shunde is the 2.37 percent
rate determined for Foshan Shunde in the 2004–2005 review of this order. All of
the other potential AFA rates . . . were either 1) calculated for companies other
than Foshan Shunde, 2) are from the [underlying] investigation or otherwise pre-
date the [POR] (and, thus, given the analysis set forth in Foshan Shunde II and
Foshan Shunde III, therefore, not specifically ‘relevant’ to Foshan Shunde, or 3)
are rates that are too low to induce cooperation in future reviews of this
proceeding and are therefore unsuitable for use as an AFA rate.
Id. at 8–9 (footnote omitted). Furthermore, according to Commerce, “[a]s a rate that is culled
from the history of two respondents, the 72.29 percent AFA rate is broader in scope than is a
single rate,” and “is the current rate in effect for all companies which have demonstrated they are
separate from the PRC-wide entity.” Id. at 10. For these reasons, Commerce concluded, the
Court No. 10-00059 Page 14
“72.29 percent rate better addresses the Court’s expressed concerns regarding ‘relevance’ and
‘commercial reality’ compared to a single rate that was calculated for one company.” Id.
Finally, “[u]nlike lower rates that range from zero to 10.18 percent, in selecting from among the
facts available [Commerce found] that 72.29 percent represents a rate that is sufficient to induce
future cooperation and ensures that Foshan Shunde does not obtain a more favorable result by
failing to cooperate than if it had cooperated fully.” Id.
STANDARD OF REVIEW
“The court shall hold unlawful any determination, finding, or conclusion found . . . to be
unsupported by substantial evidence on the record, or otherwise not in accordance with law.” 19
U.S.C. § 1516a(b)(1)(B)(i). “‘The results of a redetermination pursuant to court remand are also
reviewed for compliance with the court’s remand order.’” Yantai Xinke Steel Structure Co. v.
United States, 38 CIT __, __, Slip Op. 14-38, at 4 (Apr. 9, 2014) (quoting Xinjiamei Furniture
(Zhangzhou) Co. v. United States, 38 CIT __, __, 968 F. Supp. 2d 1255, 1259 (2014)).
DISCUSSION
I. LEGAL FRAMEWORK
During administrative reviews, Commerce requests information from respondents and if
a respondent “withholds information that has been requested by [Commerce],” “fails to provide
such information by the deadlines . . . or in the form and manner requested,” “significantly
impedes a proceeding,” or “provides such information but the information cannot be verified,”
Commerce is permitted to “use the facts otherwise available” in making its determinations. 19
U.S.C. § 1677e(a)(2)(A)–(D). If Commerce further finds a respondent has “failed to cooperate
by not acting to the best of its ability to comply with a request for information,” then it “may use
Court No. 10-00059 Page 15
an inference that is adverse to the interests of that party in selecting from among the facts
otherwise available” (i.e., it may apply AFA). Id. § 1677e(b).
In selecting an AFA rate, Commerce may use information from the petition, the
investigation, prior administrative reviews, or “any other information placed on the record.” Id.
§ 1677e(b)(1)–(4); see Gallant Ocean (Thai.) Co. v. United States, 602 F.3d 1319, 1323 (Fed.
Cir. 2010) (“[I]n the case of uncooperative respondents,” Commerce has discretion to “select
from a list of secondary sources as a basis for its adverse inferences.”); see also Statement of
Administrative Action Accompanying Uruguay Round Agreements Act, H.R. Doc. No. 103-316,
at 870, reprinted in 1994 U.S.C.C.A.N. 4040, 4199 (1994) (“SAA”) (“Secondary information is
information derived from the petition that gave rise to the investigation or review, the final
determination concerning the subject merchandise, or any previous review under section 751
[(19 U.S.C. § 1675)] concerning the subject merchandise.”). In addition, “in selecting a
reasonabl[e] [AFA] rate, Commerce must balance the statutory objectives of finding an accurate
dumping margin and inducing compliance, rather than creating an overly punitive result.”
Timken Co. v. United States, 354 F.3d 1334, 1345 (Fed. Cir. 2004).
When Commerce relies on secondary information, “rather than on information obtained
in the course of an investigation or review,” it “shall, to the extent practicable, corroborate that
information from independent sources that are reasonably at [its] disposal.” 19 U.S.C.
§ 1677e(c) (emphasis added). “To corroborate secondary information, Commerce must find the
information has ‘probative value,’ by demonstrating the rate is both reliable and relevant.” Ad
Hoc Shrimp Trade Action Comm. v. United States, 802 F.3d 1339, 1354 (Fed. Cir. 2015)
(quoting KYD, Inc. v. United States, 607 F.3d 760, 765 (Fed. Cir. 2010)) (citing Gallant Ocean,
602 F.3d at 1323–25); see also F.lli De Cecco di Filippo Fara S. Martino S.p.A. v. United States,
216 F.3d 1027, 1032 (Fed. Cir. 2000) (“It is clear from Congress’s imposition of the
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corroboration requirement in 19 U.S.C. § 1677e(c) that it intended for an adverse facts available
rate to be a reasonably accurate estimate of the respondent’s actual rate, albeit with some built-
in increase intended as a deterrent to non-compliance.” (emphasis added)); Hubscher Ribbon
Corp. v. United States, 38 CIT __, __, 979 F. Supp. 2d 1360, 1365 (2014) (“In practice
‘corroboration’ involves confirming that secondary information has ‘probative value,’ by
examining its ‘reliability and relevance.’” (citations omitted)). In other words, “Commerce must
select secondary information that has some grounding in commercial reality.” Gallant Ocean,
602 F.3d at 1324; see also Nan Ya Plastics Corp. v. United States, 810 F.3d 1333, 1343 (Fed.
Cir. 2016) (“We clarify that ‘commercial reality’ and ‘accurate’ represent reliable guideposts for
Commerce’s determinations. Those terms must be considered against what the antidumping
statutory scheme demands.”).
Furthermore, the information used to corroborate a rate must bear a relationship to a
particular respondent in order to satisfy the relevance requirement. See Gallant Ocean, 602 F.3d
at 1324; see also Changzhou Wujin Fine Chem. Factory Co. v. United States, 701 F.3d 1367,
1384 (Fed. Cir. 2012) (Observing that “because nothing in the record . . . tied the AFA rate . . . to
[the respondent], we concluded that the AFA rate was unrelated to commercial reality and not a
reasonabl[y] accurate estimate of [the respondent’s] actual dumping, hence, not supported by
substantial evidence.”).
II. THE DEPARTMENT REASONABLY DETERMINED THE 157.68 PERCENT RATE IS NOT A
SUITABLE AFA RATE FOR FOSHAN SHUNDE
As noted, in Foshan Shunde III, the court directed Commerce to either reopen “the record
and make all reasonably practicable efforts to identify independent sources reasonably at its
disposal that bear on the relevance of the 157.68 percent rate to Foshan Shunde” or, if it was
Court No. 10-00059 Page 17
unable to do so, to “explain what independent sources it considered and why those sources
contained no relevant information.” Foshan Shunde III, 38 CIT at __, 991 F. Supp. 2d at 1334–
35. In addition, if Commerce declined to again assign the 157.68 percent rate, the court ordered
the Department to “determine a separate rate for Foshan Shunde that is supported by substantial
evidence and in accordance with law.” Id. at __, 991 F. Supp. 2d at 1335.
Defendant-intervenor HPI objects to Commerce’s selection of the new AFA rate of 72.29
percent for Foshan Shunde, claiming this choice is unsupported by substantial evidence and not
in accordance with law. Def.-Int.’s Cmts. 10. According to HPI, Commerce should have
continued to use the 157.68 percent rate because that rate was corroborated to the extent
practicable. Def.-Int.’s Cmts. 9. Specifically, HPI maintains that the Department adhered to the
court’s directives in Foshan Shunde III by reopening the record and “mak[ing] all reasonably
practicable efforts to identify independent sources reasonably at its disposal that b[ore] on the
relevance of the 157.68 percent rate to Foshan Shunde.” Def.-Int.’s Cmts. 5 (quoting Foshan
Shunde III, 38 CIT at __, 991 F. Supp. 2d at 1334–35) (internal quotation marks omitted). That
is, for HPI, “[b]ased on its very own research and findings, the Department demonstrated that it
was justified in continuing to use 157.68 percent as the AFA rate for Foshan Shunde.” Def.-
Int.’s Cmts. 8.
HPI further argues that, in accordance with the court’s order, Commerce described the
specific steps it took to locate independent sources, and this “provide[d] ample support for
maintaining its preferred rate of 157.68 percent.” Def.-Int.’s Cmts. 9. Thus, HPI insists there
was no reason to change the rate because “[t]he Court [gave] the Department license to maintain
the rate of its choice—provided that certain measures were taken to ensure compliance with the
law and, based on the Department’s statements, they were.” Def.-Int.’s Cmts. 8. HPI also
questions how a rate that was determined by calculating the weighted average of the rates
Court No. 10-00059 Page 18
assigned to the two mandatory respondents during the Investigation is more relevant to Foshan
Shunde, and more reflective of its commercial reality, than the 157.68 percent rate that was
calculated for a company that HPI alleges was related to Foshan Shunde. Def.-Int.’s Cmts. 9.
The court finds HPI’s arguments unpersuasive. HPI is correct that, in accordance with
the court’s remand order in Foshan Shunde III, the Department reopened the record, searched for
independent sources, and properly detailed the steps it undertook to locate information to
corroborate the 157.68 percent rate. See Third Remand Results at 7 n.36 (“[T]o follow the
Court’s order, we note the Department searched the internet in an attempt to find any ‘primary
information’ that is contemporaneous with the [POR] and could address the commercial reality
concerns identified by the Court. We found no relevant information. We also re-examined the
record to determine whether any additional Customs data had been overlooked. None was. We
also considered whether any additional Customs data might be useful, but could not identify any
additional Customs data or sources reasonably at the Department’s disposal.”). Thus,
Commerce’s description of the steps it took to corroborate the 157.68 percent duty rate,
including reopening the record, searching for additional primary and secondary information,
reexamining the record, and considering additional data from Customs, might have resulted in
sufficient corroboration of the 157.68 percent rate.
Nevertheless, contrary to HPI’s assertions, following a fourth attempt to identify
independent sources, and given the inapplicability of the Rhone Poulenc presumption and the
court’s rejection of Commerce’s efforts to corroborate the 157.68 percent rate on three prior
occasions, the Department reasonably determined the rate was unsuitable. See Third Remand
Results at 8. Indeed, in Foshan Shunde III, the court gave Commerce the option of assigning to
and corroborating a new rate for Foshan Shunde, and did not limit the Department’s ability to do
so based on the success of its efforts to corroborate the previously-assigned rate. See Foshan
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Shunde III, 38 CIT at __, 991 F. Supp. 2d at 1335. In other words, the Department reasonably
determined it could not demonstrate the relevance of the 157.68 percent rate to Foshan Shunde
after three remands, and therefore looked elsewhere for an appropriate rate.
As to HPI’s claim that the 157.68 percent rate better reflects Foshan Shunde’s
commercial reality because it was a rate calculated for a single company, as compared to the
72.29 percent rate, which was derived from the weighted average of two different companies, the
court finds this argument unpersuasive. The 72.29 percent rate was based on the history of two
different respondents, and therefore on a somewhat broader set of data. Accordingly, the new
rate better addresses the court’s concerns about relevance and commercial reality as compared to
the 157.68 percent rate, which was supported by, at least in part, a modified form of the Rhone
Poulenc presumption that the court has repeatedly held does not apply to the circumstances of
this case. See id. at __, 991 F. Supp. 2d at 1330–31; Foshan Shunde II, 37 CIT at __ n.4, Slip
Op. 13-47, at 10 n.4. As to HPI’s argument that the 157.68 percent rate should be sustained
because it was assigned to a company affiliated with Foshan Shunde, no such finding was made
by the Department or the court in this proceeding.
Accordingly, the court finds the Department’s determination to no longer use the 157.68
percent AFA rate in light of the inapplicability of the Rhone Poulenc presumption, its inability to
identify independent sources to corroborate the rate, and the court’s authorization in Foshan
Shunde III to assign a new rate to the company irrespective of the success of its efforts to
corroborate the 157.68 percent rate, to be supported by substantial evidence and in accordance
with law.
Court No. 10-00059 Page 20
III. THE DEPARTMENT’S SELECTION OF THE 72.29 PERCENT AFA RATE IS SUPPORTED BY
SUBSTANTIAL EVIDENCE
Next, Foshan Shunde argues the Third Remand Results are unlawful because “Commerce
. . . failed to meet its burden of identifying independent sources” to corroborate the 72.29 percent
rate. Pl.’s Cmts. 7. Plaintiff contends “Commerce merely ‘searched the internet in an attempt to
find additional primary information contemporaneous with the POR which could address the
commercial reality concerns identified by the Court,’” but this was insufficient to meet the
Department’s corroboration obligations. See Pl.’s Cmts. 8 (quoting Third Remand Results at
13). For instance, Foshan Shunde asserts “Commerce does not detail the extent of this ‘search,’
and the explanation is cursory at best.” Pl.’s Cmts. 8. Instead, plaintiff claims, rather than
“expend[ ] serious effort to comply with the [Third Remand Results] and locate reliable
independent sources, Commerce complain[ed] that there [was] no primary information from
Foshan Shunde to corroborate, because Commerce previously rejected the data provided by
Foshan Shunde.” Pl.’s Cmts. 8.
Foshan Shunde also claims Commerce failed to satisfy the court’s relevance and
commercial reality concerns expressed in Foshan Shunde III. Plaintiff argues that, because the
72.29 percent rate is based on rates calculated for two other companies, and not for Foshan
Shunde itself, it does not reflect the company’s commercial reality. See Pl.’s Cmts. 9–10.
Further, plaintiff contends that “if the current commercial reality . . . during the review period
was a 72.29 percent rate and that [was] a true rate for all Chinese companies, Customs data
would show substantial imports into the United States with a cash deposit rate of 72.29 percent
rate paid on imports or something close to it.” Pl.’s Cmts. 10. Plaintiff claims there is no such
data because Foshan Shunde’s actual commercial reality during the POR reflected a rate of 2.37
Court No. 10-00059 Page 21
percent, the rate it was originally assigned during the first administrative review, as well as its
cash deposit rate in effect during this POR. Pl.’s Cmts. 10–11.
Relatedly, plaintiff insists the 72.29 percent rate was not properly corroborated because
the Department failed to “look at [Foshan Shunde’s] cash deposit rate upon entering the ironing
tables into the U.S. market, which was 2.37 percent,” or other rates on the record, ranging from 0
to 10.18 percent, and then “add ‘some built in increase intended as a deterrent to non-
compliance.’” Pl.’s Cmts. 12–13 (quoting De Cecco, 216 F.3d at 1032). Finally, Foshan Shunde
maintains that the 72.29 percent rate is “not an amount that would allow any importer to stay in
business in the United States.” Pl.’s Cmts. 11.
The court finds Foshan Shunde’s arguments unpersuasive, and holds that Commerce’s
assignment of the 72.29 percent AFA rate is supported by substantial evidence and in accordance
with law.
First, as noted, Commerce properly concluded that the 157.68 percent rate, which was the
highest calculated rate for a cooperating company in the history of the Order, was “unsuitable for
use as the [AFA] rate” for Foshan Shunde based on the Department’s unsuccessful efforts to
locate independent sources to corroborate the rate combined with the inapplicability of the Rhone
Poulenc presumption. See Third Remand Results at 9. The Department then looked to other
rates assigned over the course of the proceedings to potentially use as AFA, but reasonably
concluded these rates were unsuitable.7 See id. Specifically, Commerce found these rates: (1)
7
In particular, the Department determined the following rates were unsuitable for
use as AFA for Foshan Shunde:
1. 9.47 percent rate assigned to Since Hardware during the October 1, 2002 through
March 31, 2003 investigation period
2. 157.68 percent rate assigned to Shunde Yongjian Housewares during the October 1,
2002 through March 31, 2003 investigation period
(footnote continued)
Court No. 10-00059 Page 22
were “calculated for companies other than Foshan Shunde”; (2) were “from the [underlying]
investigation or otherwise pre-date[d] the [POR] and, thus, given the analysis set forth in Foshan
Shunde II and Foshan Shunde III, . . . not specifically ‘relevant’ to Foshan Shunde”; or (3) were
“too low to induce cooperation in future reviews of this proceeding and [were] therefore
unsuitable for use as an AFA rate.” Id. at 9; see Mueller Comercial de Mexico, S. de R.L. de
C.V. v. United States, 753 F.3d 1227, 1235 (Fed. Cir. 2014) (describing the AFA statute as “‘the
means Congress intended for Commerce to use to induce cooperation with its antidumping
investigations.’” (quoting KYD, 607 F.3d at 768)).
As to the corroboration of the 72.29 percent rate selected by Commerce, as noted, when
Commerce “relies on secondary information rather than on information obtained in the course of
an investigation or review, . . . [it] shall, to the extent practicable, corroborate that information
from independent sources that are reasonably at its disposal.” See 19 U.S.C. § 1677e(c)
(emphases added). In other words, as the court confirmed in Foshan Shunde II and Foshan
Shunde III, Commerce is not required “to go to extraordinary lengths to corroborate secondary
information where the record is deficient.” See Foshan Shunde III, 38 CIT at __, 991 F. Supp.
2d at 1334 (citing PSC VSMPO-AVISMA Corp. v. United States, 35 CIT __, __, Slip Op. 11-115,
3. 2.37 percent rate assigned to Foshan Shunde during the February 3, 2004 through
July 31, 2005 review period
4. 10.18 percent rate assigned to Forever Holdings, Limited during the February 3, 2004
through July 31, 2005 review period
5. 0.45 percent rate assigned to Since Hardware during the February 3, 2004 through
July 31, 2005 review period
6. 0.34 percent rate assigned to Since Hardware during the August 1, 2005 through July
31, 2006 review period
7. 157.68 percent rate assigned to Since Hardware during the August 1, 2006 through
July 31, 2007 review period
8. 0.00 percent rate assigned to Forever Holdings, Limited during the August 1, 2006
through July 31, 2007 review period
Third Remand Results at 9.
Court No. 10-00059 Page 23
at 5 (Sept. 15, 2011); Hubscher Ribbon, 38 CIT at __, 979 F. Supp. 2d at 1368–70; Nan Ya
Plastics Corp. v. United States, 37 CIT at __, 906 F. Supp. 2d 1348, 1351–53 (2013); Tianjin
Mach. Imp. & Exp. Corp. v. United States, 36 CIT __, __, Slip Op. 12-83, at 10–13 (June 14,
2012)).
Here, despite Commerce’s difficulty in locating independent sources to corroborate the
remaining duty rates assigned over the course of the proceedings under the Order, it is evident
that the Department has corroborated the 72.29 percent rate “to the extent practicable.” See 19
U.S.C. § 1677e(c). As the Department correctly observed, unlike the 157.68 percent rate that
was repeatedly rejected by the court, in part because it was calculated for a single company
during a prior review, this deficiency is less pronounced with the 72.29 percent rate. Rather, the
72.29 percent rate is derived from two calculated rates (i.e., the weighted average of the 157.68
percent rate assigned to Yongjian and the 9.47 percent rate assigned to Since Hardware during
the Investigation), and was also the rate “in effect for all companies which have demonstrated
they are separate from the PRC-wide entity.” See Third Remand Results at 10. In other words,
the 72.29 percent rate was the rate in effect for cooperating companies that had demonstrated
entitlement to a separate rate. This rate is therefore reflective of Foshan Shunde’s commercial
reality because similar exporters of subject merchandise were able to, and actually did, import
subject merchandise into the United States at this rate.
Furthermore, assigning an AFA rate to an uncooperative party that is lower than the
separate rate assigned to cooperative respondents runs contrary to the purpose of the AFA
statute—to incentivize future compliance on the part of uncooperative respondents. De Cecco,
216 F.3d at 1032. That is, were the Department to assign Foshan Shunde an AFA rate of less
than 72.29 percent, Foshan Shunde would have obtained a lower rate than those parties that
cooperated fully with Commerce, and thus would have no incentive to cooperate in future
Court No. 10-00059 Page 24
reviews. See SAA, H.R. Doc. No. 103-316, at 870, reprinted in 1994 U.S.C.C.A.N. at 4199 (“In
employing adverse inferences, one factor the agencies will consider is the extent to which a party
may benefit from its own lack of cooperation.”). Therefore, in addition to being relevant to
Foshan Shunde, the rate of 72.29 percent fulfills the goal of the AFA statute—“to encourage
future cooperation by ‘ensur[ing] that the party does not obtain a more favorable result by failing
to cooperate than if it had cooperated fully.’” See Fine Furniture (Shanghai) Ltd. v. United
States, 748 F.3d 1365, 1373 (Fed. Cir. 2014) (alteration in original) (quoting SAA, H.R. Doc.
No. 103-316, at 870, reprinted in 1994 U.S.C.C.A.N. at 4239). In addition, the Department
reasonably determined that, due to Foshan Shunde’s withholding of accurate factors of
production and U.S. sales information, it was impossible to determine accurately Foshan
Shunde’s commercial reality during the POR. See Third Remand Results at 7–8. Thus, Foshan
Shunde’s arguments regarding relevance and commercial reality are unpersuasive.
Second, Foshan Shunde’s argument that its 2.37 percent cash deposit rate is
representative of its commercial reality during the POR is meritless. As an initial matter, in
Foshan Shunde II, the court expressly rejected the use of the 2.37 percent rate as the dumping
rate for Foshan Shunde in this review. See Foshan Shunde II, 37 CIT at __, Slip Op. 13-47, at 6–
7 (“Thus, according to plaintiffs, Commerce was required to use the 2.37 [percent] rate
calculated for Foshan Shunde in the first administrative review or to create a rate using some
unspecified methodology. This argument cannot be credited. On remand, the court expressly
instructed Commerce to ‘take[] into consideration the Department’s determination, sustained
here, to apply AFA to Foshan Shunde’s factors of production and sales data.’ Therefore, the
court anticipated the use of a reasonable AFA methodology by Commerce when determining the
company’s rate. Nothing in the order indicated that when applying AFA, the Department was
required to calculate a rate for Foshan Shunde or that it was prohibited from using any
Court No. 10-00059 Page 25
reasonable method for determining the company’s rate.” (alteration in original) (quoting Foshan
Shunde I, 36 CIT at __, Slip Op. 11-123, at 42)).
Furthermore, after an investigation results in the issuance of an antidumping duty order,
Commerce directs Customs to collect estimated antidumping duties (i.e., cash deposits) on
entries of merchandise subject to the order. See 19 U.S.C. § 1673b(d)(1)(B). These deposit
rates, however, are only estimates of the eventual liability to which importers might be subject
for entries of merchandise that are covered by an antidumping duty order. As frequently noted
by this Court, the antidumping duty regime is retrospective in nature, and interested parties may
request annual reviews to better approximate their duty rates for a period of time that has already
ended. See 19 U.S.C. § 1675; 19 C.F.R. § 351.213. Hence, in the event a review results in a rate
that differs from the cash deposit rate, an importer’s liability may require an adjustment. Here,
the 2.37 percent cash deposit rate for the current review was assigned to Foshan Shunde during
the first administrative review. The purpose of the fourth review is to determine whether the rate
of 2.37 percent remains an accurate duty rate for Foshan Shunde during the current POR, and
says nothing about the company’s commercial reality during this POR.
Similarly, the court finds unavailing Foshan Shunde’s argument that one of the record
rates ranging from 0 to 10.18 percent should have been used, along with a built-in increase for
Foshan Shunde’s non-compliance. It is unclear what level of built-in increase to these rates
plaintiff believes would be appropriate and, in any case, it is “Commerce’s task . . . to identify
the amount necessary to deter noncompliance.” Lifestyle Enter., Inc. v. United States, 36 CIT __,
__, 865 F. Supp. 2d 1284, 1291 (2012). Here, Commerce balanced the statutory directives to
select an AFA rate that (1) would induce future cooperation on the part of Foshan Shunde, and
(2) was reflective of Foshan Shunde’s commercial reality during the POR in a case where the
Court No. 10-00059 Page 26
company filed deficient information regarding its factors of production and sales during the
POR.
Because the 72.29 percent rate assigned to Foshan Shunde satisfies Commerce’s
inducement criteria by ensuring that the company does not obtain a more favorable outcome than
it would have received had it cooperated with the Department’s requests for information, and
Commerce corroborated the rate to the extent practicable in accordance with the statute, the court
holds the Department’s assignment of the rate is supported by substantial evidence and is in
accordance with law. Accordingly, Commerce’s Third Remand Results are sustained.
CONCLUSION
For the foregoing reasons, it is hereby
ORDERED that the Department of Commerce’s Third Final Results of Redetermination
Pursuant to Court Remand are sustained. Judgment will be entered accordingly.
Dated: April 7, 2016
New York, New York
/s/ Richard K. Eaton
________________________________
Richard K. Eaton
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NOT RECOMMENDED FOR FULL-TEXT PUBLICATION
File Name: 12a0745n.06
No. 11-1862
FILED
Jul 11, 2012
UNITED STATES COURT OF APPEALS
LEONARD GREEN, Clerk
FOR THE SIXTH CIRCUIT
PATRICK J. HARRINGTON,
Petitioner,
v. ON APPEAL FROM THE UNITED
STATES DISTRICT COURT FOR THE
UNITED STATES OF AMERICA, EASTERN DISTRICT OF MICHIGAN
Respondent.
/
BEFORE: COLE and CLAY, Circuit Judges; MATTICE, District Judge.*
CLAY, Circuit Judge. Petitioner Patrick Harrington, a federal inmate convicted of
defrauding the United States government, appeals an order denying his petition for writ of habeas
corpus pursuant to 28 U.S.C. § 2255. Petitioner argues that his attorneys rendered deficient
performance during his sentencing proceedings. Because Petitioner’s attorneys did not render
deficient performance, and because Petitioner was not prejudiced by any decisions of counsel, we
AFFIRM.
*
The Honorable Harry S. Mattice, Jr., United States District Judge for the Eastern District of Tennessee, sitting
by designation.
No. 11-1862
BACKGROUND
Petitioner was convicted on two counts of defrauding the United States government after
spearheading a fraud against the United States Small Business Administration (“SBA”). Petitioner
managed the Troy, Michigan office of Business Loan Express, LLC (“BLX”) from 2001 through
2006. In his position as executive vice president of BLX, Petitioner oversaw BLX’s participation
in an SBA program in which the SBA delegated loan approval, closing, and servicing authority to
BLX. In that position, Petitioner participated in an illegal scheme to issue illegitimate
SBA-guaranteed loans.
Broadly speaking, the scheme entailed buying properties at inflated prices using
SBA-guaranteed loans. The scheme benefitted Petitioner because his compensation increased as the
number of SBA-guaranteed loans issued by BLX increased. The panel that affirmed Petitioner’s
sentence on direct review described the scheme as follows:
Typically, the fraudulent loans involved one to five individuals or groups of
individuals (brokers) who orchestrated the purchase and resale of gas stations,
convenience stores, party stores, restaurants, or small motels. A broker would locate,
and sometimes buy, the property and then find a person to buy the property at an
inflated price using an SBA-guaranteed loan issued by BLX. In some instances, the
purchaser was truly interested; in others, the purchaser was a “straw buyer” who did
not intend to operate the business or make loan payments but was promised payment
by the broker to serve as the buyer. In order to qualify the buyers for
SBA-guaranteed loans, Harrington, the brokers, and the buyers would misrepresent
the buyers’ financial status or work experience, misrepresent whether the buyer was
a United States citizen, conceal and cover-up the fact that someone other than the
alleged buyer was going to be the beneficial owner or operate the business, overstate
the value of the property, and fraudulently document that the buyer made the required
equity-injection payments. The broker profited from the mark-up in the price of the
property by receiving a percentage of the purchase price. Harrington profited because
his compensation was based, in part, on the number and amount of loans he
originated. In all, Harrington fraudulently originated and issued eighty-nine
SBA-guaranteed loans and two loans with Community South Bank.
2
No. 11-1862
United States v. Harrington, 367 F. App’x 657, 658 (6th Cir. 2010). All told, the full value of the
loans issued as a result of Petitioner’s fraud was $84,949,000. Id.
Many of the loans entered default and were subsequently liquidated, leading to immense
losses for BLX. When federal authorities began investigating this scheme, Petitioner made false and
material misrepresentations under oath before a grand jury. Petitioner represented that he was
unaware that the declarations used to satisfy the equity-injection requirements of the loans were
fraudulent, when, in fact, he knew that the declarations were untrue. Petitioner was indicted in
December 2006 on fourteen counts of fraud-related offenses. In 2008 he pleaded guilty to a
superseding information charging him with conspiracy to defraud the United States, in violation of
18 U.S.C. § 371, and making a false declaration before a grand jury, in violation of 18 U.S.C. §
1623.
In his Presentence Investigation Report (“PSR”), Petitioner was assigned a base offense level
of six for his conspiracy charge. The PSR recommended an enhancement of 22 points on the ground
that a loss of between $20 million and $50 million was attributable to Petitioner. See USSG § 2B1.1.
Specifically, the PSR held Petitioner responsible for a loss of between $30,362,654 and $32,168,841.
(PSR ¶ 21.) The probation office calculated this figure based on the defaults of the fraudulent loans
for which Petitioner was responsible for issuing. Petitioner was made responsible for default
amounts where BLX had suffered a shortfall after liquidation of the defaulting loan; he was not made
responsible for any amount BLX had recouped after a default.
The PSR also recommended a four-point enhancement because Petitioner was an organizer
of the fraudulent scheme, see USSG § 3B1.1, a two-point enhancement because Petitioner abused
3
No. 11-1862
a position of trust, see USSG § 3B1.3, and a three-point reduction for acceptance of responsibility,
see USSG § 3E1.1. The result of these adjustments was a total offense level of thirty-one, which,
given Petitioner’s lack of criminal history, yielded a Guideline range of 108 to 135 months. The
PSR calculation for Petitioner’s false-statement charge yielded a base offense level of fourteen and
was neither enhanced nor reduced.
In his sentencing memorandum filed in advance of the district court’s hearing, Petitioner
requested a downward variance on four bases. See 18 U.S.C. § 3553(a). Most crucial to this appeal,
Petitioner argued that the loss amount attributed to him was too great, reasoning that (1) he did not
personally benefit from the loans, but rather assisted others in obtaining loans that he expected would
be repaid; (2) the number of defaults on the loans in question was partially attributable to “real estate
market conditions and the general state of the local and national economies”; and (3) the single loss
figure masked the fact that Petitioner played “an appreciably smaller role” than others in obtaining
39 of the 89 loans. (Def.’s Sent. Memo. 10–13, R. 31, Page ID 155–58.) Petitioner also argued that
he was not a leader or organizer of the fraud, that he did not abuse a position of trust, and that a
Guideline-range sentence would be disproportionate to the severity of his conduct. The district court
denied all of Petitioner’s variance requests and sentenced him to 120 months imprisonment.
Petitioner appealed the district court’s rulings regarding his role in the offense and the abuse of a
position of trust, but this Court affirmed. See Harrington, 367 F. App’x at 662. Petitioner did not
appeal the district court’s loss calculation.
In his pro se motion to vacate, Petitioner argued that counsel should have objected directly
to the PSR’s loss calculation, which the district court adopted. According to Petitioner, the PSR’s
4
No. 11-1862
loss calculation failed to take into account the effect of certain intervening causes of BLX’s losses,
such as market losses that the SBA and BLX would have incurred on account of risky loan practices
unrelated to Petitioner’s fraud. Since Petitioner believed the loss attributed to him was inflated, he
contended that counsel should have objected to the calculation and that the failure to object
prejudiced him. The district court rejected this argument, and Petitioner timely appealed.
DISCUSSION
I. Legal Framework
Section 2255 of Title 28 of the United States Code permits a federal prisoner in custody to
challenge his sentence if it “was imposed in violation of the Constitution or laws of the United
States.” 28 U.S.C. § 2255(a). In an appeal of a denial of a § 2255 petition, we review legal issues
de novo and uphold factual findings of the district court unless they are clearly erroneous. Adams
v. United States, 622 F.3d 608, 610–11 (6th Cir. 2010).
A defendant is not accorded his Sixth Amendment right to counsel if “counsel’s conduct so
undermined the proper functioning of the adversarial process that the trial cannot be relied on as
having produced a just result.” Strickland v. Washington, 466 U.S. 668, 686 (1984). Thus, to prevail
on an ineffective assistance of counsel claim, a petitioner “must demonstrate that counsel’s
representation fell below an objective standard of reasonableness and that the defendant was
prejudiced by the ineffective assistance of counsel.” Carter v. Bell, 218 F.3d 581, 591 (6th Cir.
2000). A defendant is entitled to objectively reasonable representation during the sentencing phase
as well as during trial. See Haliym v. Mitchell, 492 F.3d 680, 711–12 (6th Cir. 2007).
5
No. 11-1862
Representation is deficient under Strickland when counsel makes an error “so serious that
counsel was not functioning as the ‘counsel’ guaranteed the defendant by the Sixth Amendment.”
Strickland, 466 U.S. at 687. To satisfy the prejudice element of Strickland, a petitioner must prove
that “there is a reasonable probability that, but for counsel’s unprofessional errors, the result of the
proceeding would have been different.” Id. at 694. The Supreme Court defines a “reasonable
probability” as “a probability sufficient to undermine confidence in the outcome.” Id.
Tactical or strategic decisions are presumed “sound” and are therefore “particularly difficult
to attack” in a habeas petition. O’Hara v. Wigginton, 24 F.3d 823, 828 (6th Cir. 1994) (quoting
Strickland, 466 U.S. at 690). In considering a petitioner’s ineffective assistance claim, “every effort
[must] be made to eliminate the distorting effects of hindsight, to reconstruct the circumstances of
counsel’s challenged conduct, and to evaluate the conduct from counsel’s perspective at the time.”
Strickland, 466 U.S. at 689.
II. Analysis
Section 2B1.1 of the United States Sentencing Guidelines requires a sentencing court to
increase a defendant’s offense level based on the amount of monetary loss attributable to his crimes.
See USSG § 2B1.1; see also United States v. Krimsky, 230 F.3d 855, 861–62 (6th Cir. 2000).
Section 2B1.1 requires a district court to attribute to the defendant “the greater of actual loss or
intended loss.” USSG § 2B1.1 cmt. n.3(A). When the district court attributes the actual loss to the
defendant (as the court appears to have done in this case), the court must find “the reasonably
foreseeable pecuniary harm that resulted from the offense.” USSG § 2B1.1 cmt. n.3(A)(i). The
Guidelines define “reasonably foreseeable pecuniary harm” as the “pecuniary harm that the
6
No. 11-1862
defendant knew or, under the circumstances, reasonably should have known, was a potential result
of the offense.” USSG § 2B1.1 cmt. n.3(A)(iv).
The sentencing court must “only make a reasonable estimate of the loss” attributable to a
defendant’s fraud. USSG § 2B1.1 cmt. n.3(C). A district court’s reasonable estimate must
distinguish between “but for” and proximate cause, and the court must use the latter in deciding how
many levels to enhance a defendant’s sentence. United States v. Rothwell, 387 F.3d 579, 583–84
(6th Cir. 2004).
Petitioner contends that counsel performed deficiently by declining to object to the PSR’s
loss calculation. He argues that the probation office calculated the loss Petitioner caused using the
“but for” standard and that it should have been calculated using proximate cause principles. He
contends that the district court could have reasonably estimated Petitioner’s proximately-caused loss
by comparing the default rate of the fraudulent loans Petitioner helped issue with the default rate of
similar loans untainted by fraud. Instead of challenging the PSR’s loss calculation in this manner,
Petitioner contends that defense counsel accepted the loss calculation, a decision he claims was
indefensible.
Petitioner’s claim is factually unfounded, because it assumes that defense counsel did not
contest the amount of loss attributable to Petitioner. Counsel did, in fact, dispute that figure: while
counsel did not formally ask the district court not to adopt the PSR’s loss calculation, Petitioner’s
attorneys used a variance request under 18 U.S.C. § 3553(a) to argue that the PSR overstated the loss
attributable to Petitioner. See 18 U.S.C. § 3553(a) (directing a sentencing court to “impose a
sentence sufficient, but not greater than necessary, to comply with the purposes” of sentencing).
7
No. 11-1862
Defense counsel filed a detailed sentencing memorandum in advance of Petitioner’s
sentencing hearing. In pertinent part, counsel argued that the PSR overstated the amount of loss
attributed to him and “exert[ed] too heavy an influence on the sentencing range recommended by the
Guidelines.” Def.’s Sent. Memo. 10, Page ID 155. As stated by defense counsel, the “22-level
enhancement treat[ed] [Petitioner] the same as someone who engages in a ‘pump and dump' stock
scheme or similar types of fraud where the defendant is personally enriched by as much as $50
million,” even though Petitioner’s “personal gain from the scheme was nowhere near that of other
defendants who receive the same loss amount enhancement for their fraud or theft offenses.” (Id.)
Additionally, Petitioner argued that he was heavily involved with the origination of fifty of the
offending loans but “played an appreciably smaller role” in the origination of the remaining
thirty-nine loans, which were originated primarily by two brokers in Chicago. (Id. 12, Page ID 157.)
Finally, and most crucially, defense counsel argued that larger economic factors contributed
significantly to the number of defaults on the loans at issue:
[T]he level and severity of the defaults on the various loans—and the attendant
consequences for SBA and BLX—has been accentuated by real estate market
conditions and the general state of the local and national economies. Michigan
lenders, in particular, have been hit hard. Our State has the highest percentage of
troubled banks in the nation. . . . It can hardly be disputed that the sharp and
unexpected drop in the real estate market played a significant role in both the default
rates and the ability to mitigate losses through the sale of collateral for the loans. To
be sure, “but for” the scheme many of these particular borrowers would not have
been in a position to default on SBA-guaranteed loans, but in assessing culpability
and in determining the necessary level of punishment it is important to ask whether
other actors contributed to the loss that has been attributed to [Petitioner].
(Id. 11.) In substance, this argument asserts that Petitioner should not have been made responsible
for the total effect of the fraudulent loans he helped originate, because the poor regional and national
8
No. 11-1862
economy intervened and increased the severity of the defaults. This is a classic proximate cause
argument. See Aetna Cas. & Sur. Co. v. Leahey Const. Co., 219 F.3d 519, 543 (6th Cir. 2000)
(“[T]he concept of proximate cause requires . . . reasonable foreseeability and the lack of any
independent intervening causes.”).
Given that defense counsel made the identical type of argument that Petitioner argues they
did not make, Petitioner’s ineffective assistance claim boils down to a challenge to defense counsel’s
method of making this argument. Petitioner faults defense counsel for arguing the issue of loss
causation through the avenue of a variance request under 18 U.S.C. § 3553(a) rather than through
a direct challenge to the probation office’s loss calculation. But no consequence of any significance
hinged on defense counsel’s chosen avenue for the challenge—except that success on a variance
request would have been safer on appeal.1 See Gall v. United States, 552 U.S. 38, 51–52 (2007)
(explaining that review of a district court’s variance under § 3553(a) is for abuse of discretion);
United States v. Moore, 582 F.3d 641, 644 (6th Cir. 2009) (explaining that review of mixed
questions of law and fact in the application of the Guidelines is de novo).
1
On this point, Petitioner offers a scenario in which defense counsel could have taken
advantage of both avenues of challenging the loss calculation and availed him of review of the
district court’s sentence under both the abuse-of-discretion and de novo standards of review.
According to Petitioner, defense counsel could have challenged the PSR’s application of § 2B1.1
in the first instance. If the district court agreed with his argument but this Court reversed while
reviewing de novo, then defense counsel could have requested a variance pursuant to § 3553(a) at
re-sentencing. Plausible or not, this scenario is no basis for concluding that counsel’s performance
fell outside “the wide range of reasonable professional assistance,” particularly when counsel’s
chosen method of challenging the calculation was a “tactical decision” aimed at appealing to the
significant discretion a district court has in varying from a defendant’s advisory Guideline range
under § 3553(a). Strickland, 466 U.S. at 689; see United States v. Petrus, 588 F.3d 347, 356 (6th
Cir. 2009).
9
No. 11-1862
Petitioner also faults counsel for not challenging the loss calculation more vigorously by
providing the district court with statistics comparing the loss rates of loans originated by Petitioner
with those of loans untainted by fraud. Counsel’s decision not to do so is no basis for habeas relief,
because the intensity with which counsel pressed their challenge to the loss calculation was a valid
tactical decision. Strickland, 466 U.S. at 689. Counsel chose to focus their energies on a range of
issues raised by the PSR and prepared a seventeen-page sentencing memorandum with unusually
elaborate descriptions of Petitioner’s personal and family history, his role in the offense, and
application of the § 3353(a) factors to his case. We see no reason to second-guess the weight
counsel decided to give to these arguments. See id. Moreover, any advantage Petitioner would have
gained by offering the court statistical information comparing loan default rates would probably have
been marginal, making counsel’s decision to apply their efforts broadly all the more defensible.
Thus, Petitioner cannot overcome the “strong presumption” that counsel’s method of contesting loss
causation fell “within the wide range of reasonable professional assistance.” Id.
Even if Petitioner’s argument about counsel’s performance were more persuasive, we would
still conclude that counsel’s method of challenging the PSR’s loss calculation did not prejudice him.
According to Petitioner, counsel’s failure to object using the correct standard cost Petitioner a
22-point enhancement, increasing the low end of his Guideline range from four to 108 months. This
argument is misleading. It assumes that a successful challenge of the PSR’s application of § 2B1.1
could have resulted in no loss enhancement, but that result was implausible. Even if counsel had
convinced the district court that the PSR overstated the loss attributable to Petitioner, counsel had
to convince the court that the amount was overstated by over $12 million to obtain even a two-point
10
No. 11-1862
reduction in his § 2B1.1 enhancement and by $25 million to obtain a four-point reduction. Counsel’s
§ 3553(a) argument did not convince the district court to reduce the loss attributed to Petitioner by
these amounts. A direct attack on the PSR’s loss calculation was no more likely to do so, because,
as we have explained, the type of argument necessary to succeed in challenging loss causation by
either method is the same.
Petitioner relies heavily on United States v. Rothwell, a case in which we described the proper
method of calculating loss under § 2B1.1, but Rothwell is unhelpful to him. In Rothwell, a defendant
purchased two properties to refurbish and obtained an SBA loan to fund work on only one of those
properties. Rothwell, 387 F.3d at 581. The defendant used a portion of that loan to fund work on
the other property but submitted invoices to the SBA stating that he used the loan to fund work on
the SBA-funded property. Id. The defendant reimbursed the SBA by eventually using his own
money to fund work on the SBA-funded property. Id. However, the defendant later defaulted on
the SBA loan, and the SBA foreclosed on the property and sold it at a substantial loss. Id.
In sentencing the defendant on his conviction for mail fraud, the district court calculated loss
as a share of the amount the SBA lost in the foreclosure sale. Id. at 581–82. We remanded,
concluding that the district court “ignored the causation requirement inherent in the rules for
determining loss.” Id. at 583. We reasoned that the defendant’s act of submitting false invoices
could not “be reasonably considered to have caused the SBA’s loss under either a ‘but for’ or legal
cause analysis.” Id. at 584. Rather, we considered there to be “myriad explanations for the default”
and foreclosure, such as poor business judgment or larger economic forces, which we considered
“more likely causes than the fraud-induced progress payment.” Id.
11
No. 11-1862
Rothwell sheds no light on the central issue implicated by Petitioner’s claim—namely,
whether counsel rendered ineffective assistance by contesting the PSR’s loss calculation through the
avenue of § 3553(a). Rothwell stands for the uncontested proposition that a sentencing court
applying § 2B1.1 must make a reasonable estimate of loss using proximate cause as its measure. In
this case, counsel argued that the PSR’s loss calculation overstated Petitioner’s responsibility for the
SBA’s losses, and they did so in a method that sufficiently vindicated Petitioner’s right to a specific
factual finding on loss causation by the district court, even if Petitioner is now dissatisfied with that
finding. Counsel urged the district court to comply with the rule that Rothwell stands for, and
therefore Rothwell does not suggest that counsel’s performance was objectively unreasonable.
CONCLUSION
For the foregoing reasons, we AFFIRM the district court’s judgment.
12
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Opinion issued July 23, 2013
In The
Court of Appeals
For The
First District of Texas
NO. 01-13-00183-CV
MICHAEL ALDOUS, Appellant
V.
DEBBIE O’CONNOR, Appellee
On Appeal from the 10th District Court
Galveston County, Texas
Trial Court Cause No. 11CV0824-C
MEMORANDUM OPINION
Appellant Michael Aldous has failed to timely file a brief. See TEX. R. APP.
P. 38.6(a) (governing time to file brief), 38.8(a) (governing failure of appellant to
file brief).
Appellant’s brief was due on May 31, 2013. Appellant did not file a brief.
On June 20, 2013, we notified appellant that the appeal was subject to dismissal.
See TEX. R. APP. P. 38.8(a)(1) (providing for dismissal for failure to file brief),
42.3(b) (allowing involuntary dismissal of appeal). Appellant did not respond.
Accordingly, we dismiss the appeal for want of prosecution. We dismiss
any pending motions as moot.
PER CURIAM
Panel consists of Justices Keyes, Higley, and Bland.
2
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915 F.2d 584
Joe AULSTON and Lola Aulston, et al., Plaintiffs-Appellants,v.UNITED STATES of America, et al., Defendants-Appellees,andShell Western E & P, et al., Intervenors-Appellees.
No. 88-2349.
United States Court of Appeals,Tenth Circuit.
Sept. 20, 1990.
Robert H. Bork, Washington, D.C. (Luke J. Danielson, Denver, Colo., and Stephen Muse, San Antonio, Tex., with him, on briefs), for plaintiffs-appellants.
George W. Van Cleve (Michael J. Norton, Acting U.S. Atty. and Paula M. Ray, Asst. U.S. Atty., Denver, Colo., with him, on brief), for defendants-appellees.
Marla J. Williams (Steven B. Richardson with her, on brief), Holme Roberts & Owen, Denver, Colo., for intervenors-appellees.
Before HOLLOWAY, Chief Judge, and SEYMOUR and MOORE, Circuit Judges.
SEYMOUR, Circuit Judge.
1
This case presents us with the question whether oil and gas reservations to the United States in federal land patents pursuant to the Agricultural Entry Act of 1914, 30 U.S.C. Secs. 121-125 (1988) (1914 Act), include deposits of carbon dioxide gas. The Department of the Interior and the district court concluded that the carbon dioxide gas was reserved to the government. We agree and hold that the term "gas" in the 1914 Act reasonably may be interpreted to include the carbon dioxide deposits.
I.
A.
2
Plaintiffs are owners of ranchlands and dryland farms in Montezuma and Dolores Counties in the State of Colorado. Underlying or adjacent to these lands are portions of the McElmo Dome, a geologic formation containing a large amount of nearly pure carbon dioxide, which is an inert, non-combustible, odorless gas at normal temperature and pressure conditions. The gas was discovered in the Dome in the 1950s. Although of little or no commercial value for decades,1 the combination of the domestic oil shortages of the 1970s and the resultant development of tertiary oil recovery methods employing carbon dioxide suddenly transformed the gas into a valuable resource. Since 1982, carbon dioxide gas has been pumped from plaintiffs' lands by private oil companies under a leasing arrangement with the United States government. The gas is transported by pipeline to otherwise depleted oil fields in Texas, where it is used both as a pressurizer and a solvent to enhance oil recovery there.
3
The United States' claim to ownership of the carbon dioxide gas derives from reservations to the United States of "oil and gas" or "oil, gas, potash and sodium" contained in plaintiffs' or their predecessors' federal land patents issued under the homestead laws. The reservations at issue were created pursuant to the Agricultural Entry Act of 1914, ch. 142, 38 Stat. 509 (codified as amended at 30 U.S.C. Secs. 121-125 (1988)) (1914 Act). The 1914 Act provided for homestead entry onto lands withdrawn from entry, classified, or reported as valuable for "phosphate, nitrate, potash, oil, gas, or asphaltic minerals," subject to reservations to the United States of the enumerated resources "on account of which the lands were withdrawn or classified or reported as valuable." Id. Sec. 121. Plaintiffs claim that the term "gas" in the 1914 Act and in the patents refers to combustible hydrocarbon gas only.
4
To gain a proper understanding of the statute at issue, we must put it into its historical context. As is true for much of the West, plaintiffs' lands originally comprised part of a vast public domain. In the second half of the nineteenth century, Congress enacted homestead laws to encourage settlement and agricultural development of these immense stretches of land. See, e.g., Homestead Act of 1862, ch. 75, 12 Stat. 392 (codified as amended at 43 U.S.C. Secs. 161-302 (1982)), repealed by Federal Land Policy and Management Act of 1976, Pub.L. No. 94-579, 90 Stat. 2787.
5
Settlement occurred at a rapid pace and full fee title to much of this land passed into private hands. In the conservation-minded, Progressivist era of the first few decades of the twentieth century, the concern arose that valuable resources in the public domain should remain in public hands to avoid imprudent development, add to public revenues, and avert the threat of monopolization. See generally Colby, The New Public Land Policy with Special Reference to Oil Lands, 3 Cal.L.Rev. 269 (1915). In particular, the homestead entry laws were viewed as subject to abuse by speculators interested only in the mineral resources underlying them. See The Classification of the Public Lands, 537 USGS Bull. 38-39, Dep't of the Interior (1913) (Bulletin 537). Presumably for fear of the consequences of legislative delay, the Department of the Interior unilaterally withdrew from homestead entry millions of acres believed to contain oil, gas, phosphate, or coal. See id. at 38-43; see also United States v. Midwest Oil Co., 236 U.S. 459, 478-79, 35 S.Ct. 309, 315, 59 L.Ed. 673 (1915) (describing executive land withdrawals).
6
In 1910, Congress recognized the executive's authority to make land withdrawals and provided a procedure by which the Department of the Interior could withdraw any public lands and reserve them for the public purpose set forth in the withdrawal order. See Pickett Act of 1910, ch. 421, 36 Stat. 847 (codified as amended at 43 U.S.C. Secs. 141-142 (1970)), repealed by Federal Land Policy and Management Act of 1976, Pub.L. No. 94-579, 90 Stat. 2792; see also Midwest Oil Co., 236 U.S. at 482-83, 35 S.Ct. at 316-17 (validating executive withdrawals and discussing purpose and effect of Pickett Act). The Pickett Act withdrawals were only partial, however. When originally enacted, the Act provided that lands so withdrawn would remain open for development and purchase of "minerals other than coal, oil, gas and phosphates." Ch. 421, 36 Stat. 847. In 1912, Congress amended the Pickett Act and replaced this list of excluded minerals with a provision allowing exploration and purchase of metalliferous minerals on withdrawn lands. See Act of August 24, 1912, ch. 369, 37 Stat. 497. Under the Pickett Act, the Department of the Interior continued with its policy of withdrawing vast quantities of land it believed valuable for petroleum (including gas), phosphate, potash, waterpower, coal, and other nonmetalliferous minerals. See Letters from the Secretary of the Interior to Congress (Dec. 13, 1912 and December 16, 1913) (Report on Land Withdrawals from Settlement, Location, Sale, or Entry under Provisions of the Act of Congress Approved June 25, 1910, 36 Stat. 847).
7
In addition to the Pickett Act land withdrawals, the United States Geological Survey (USGS) embarked on a large-scale program of classification of the public lands according to their mineral, hydrologic, and agricultural characteristics. See generally Bulletin 537. Under the USGS system then in use, mineral lands could be classified as coal lands, oil and gas lands, potash lands, or phosphate lands, among other minerals. See id. Concerning oil and gas, the Survey noted:
8
"The immediate purpose of the classification of oil and gas land is to withhold from entry all lands containing valuable deposits of fluid hydrocarbons pending the enactment of adequate legislation providing for their disposition. The ultimate purpose of the classification is to determine the position and extent of the areas whose value for their deposits of oil or gas, whether proved by actual drilling or indicated by favorable geologic conditions, is greater than their value for agriculture or other purposes and to provide for a disposition of the deposits in accordance with this greater value."
9
Id. at 117. Once land was so classified, a proposed withdrawal order would be sent to the Secretary of the Interior for appropriate action.2
10
In the wake of these large-scale withdrawals, it was evident that valuable farm or ranch lands would go untilled or ungrazed because they were withdrawn from entry on account of the valuable deposits believed to exist there. Congress responded with a series of acts, including the 1914 Act, permitting homestead entry onto such lands while reserving various types of mineral estates in the United States. See, e.g., Act of March 3, 1909, ch. 270, 35 Stat. 844 (codified at 30 U.S.C. Sec. 81 (1988)) (reserving coal); Act of August 24, 1912, ch. 367, 37 Stat. 496, repealed by Act of December 16, 1930, ch. 14, 46 Stat. 1028 (reserving enumerated mineral resources in land patents issued in Utah); 1914 Act (authorizing reservations of phosphate, nitrate, potash, oil, gas, and asphaltic minerals); Stock Raising Homestead Act of December 29, 1916, ch. 9, 39 Stat. 864 (codified at 43 U.S.C. Sec. 299 (1982)) (reserving "coal and other minerals"); see generally Bate, Mineral Exceptions and Reservations in Federal Public Land Patents, 17 Rocky Mtn.Min.L.Inst. 325, 345-50 (1972).
11
Plaintiffs' or their predecessors' patents contain reservations of "oil and gas" or "oil, gas, potash and sodium"3 pursuant to the 1914 Act. A typical patent grants the land to the homestead claimant
12
"EXCEPTING AND RESERVING TO THE UNITED STATES all oil and gas in the lands so patented, and to it, or persons authorized by it, the right to prospect for, mine and remove such deposits from the same upon compliance with the conditions and subject to the provisions and limitations of the [1914 Act]."
13
Rec., vol. II, at 2. The relevant portions of the 1914 Act in turn provide:
14
"Lands withdrawn or classified as phosphate, nitrate, potash, oil, gas, or asphaltic minerals, or which are valuable for these deposits, shall be subject to appropriation, location, selection, entry, or purchase, if otherwise available, under the nonmineral land laws of the United States, whenever such location, selection, entry, or purchase shall be made with a view of obtaining or passing title with a reservation to the United States of the deposits on account of which the lands were withdrawn or classified or reported as valuable, together with the right to prospect for, mine, and remove the same."
15
30 U.S.C. Sec. 121 (1988) (emphasis added).
16
Section 2 of the 1914 Act specifies that any deposits so reserved "shall be subject to disposal by the United States ... as shall be hereafter expressly directed by law." Id. Sec. 122. Six years later, Congress provided for the disposal of the reserved deposits in the Mineral Lands Leasing Act of 1920, ch. 85, 41 Stat. 437 (codified as amended at 30 U.S.C. Secs. 181-263 (1988)). The Mineral Lands Leasing Act provided the Department of the Interior with authority to lease deposits of coal, phosphate, oil shale, oil, gas, and sodium owned by the United States. Significantly, the Mineral Lands Leasing Act expressly excepted helium from its provisions regulating the leasing of "gas" rights. See id. Sec. 181. Under various versions of this Act, the United States has leased its gas rights in hydrocarbons and in carbon dioxide, including the carbon dioxide at issue here, to various private concerns.
B.
17
In the late 1970s, after the carbon dioxide in the McElmo Dome was discovered and its value in oil production became apparent, various plaintiffs sought the Department of the Interior's determination as to who owned it. The Department asserted that the deposits were "gas" within the meaning of the reservations in plaintiffs' patents under the 1914 Act. See rec., vol. II, at 201-03 (Memorandum from the Regional Solicitor, Denver, Department of the Interior, to the State Director of the Bureau of Land Management (July 12, 1979)). Plaintiffs responded with a class action in the United States District Court for the District of Colorado challenging the Interior Department's assertion of ownership of the carbon dioxide, and seeking compensation under the "Little Tucker Act," 28 U.S.C. Sec. 1346(a)(2) (1988).
18
The district court dismissed the class action. The attack on the Interior Department's determination of ownership was ruled unripe because plaintiffs had failed to exhaust their administrative remedies by bringing an administrative appeal before the Interior Board of Land Appeals (IBLA). See 43 C.F.R. Sec. 3000.4 (1989). The district court also held it lacked jurisdiction over the Tucker Act claim because it exceeded $10,000. See 28 U.S.C. Sec. 1346(a)(2). The court observed that claims against the United States exceeding $10,000 must be brought in the Claims Court under 28 U.S.C. Sec. 1491 (1988). See Ives v. United States, Civ. No. 80-K-705 (D.Colo. March 25, 1981).
19
Plaintiffs returned to the administrative arena. Following the district court's suggestion, plaintiffs filed a private contest action against the Department of the Interior which was dismissed because the United States is not a proper defendant in such actions. See 43 C.F.R. Sec. 4.450 (1989). The Department suggested that plaintiffs file an application for a recordable disclaimer of interest, under which the FLPMA authorizes the Interior Department to issue a sort of quitclaim deed to clear title to real property in which the United States may have a colorable but invalid interest. See 43 U.S.C. Sec. 1745 (1982); 43 C.F.R. Secs. 1864.0-1 to .4 (1989). Plaintiffs filed their application, which the Department denied. The Department's decisions were appealed to the IBLA pursuant to 43 C.F.R. Sec. 1864.4, and the IBLA affirmed. See Robert D. Lanier, 93 Interior Dec. 66 (1986); Norton, I.B.L.A. 88-22 (Nov. 27, 1987).
20
Plaintiffs sought review of the IBLA's decision, in conjunction with their damages claim, in the United States Claims Court. The Claims Court concluded, however, that it had no jurisdiction to set aside the IBLA's decision. The court's inability to determine ownership of the carbon dioxide also precluded consideration of plaintiffs' Tucker Act claim because plaintiffs' ownership of the gas is an obvious predicate to the validity of their damage claim. The Claims Court therefore dismissed the action. See Aulston v. United States, 11 Cl.Ct. 58 (1986).
21
On appeal, the Federal Circuit affirmed. The court realized, however, that substantial time had already elapsed in administrative and judicial forums and that plaintiffs had yet to seek review of the IBLA's decision in the proper forum. By the time their ownership would be finally determined, the statute of limitations on their damage claim would likely run. The court therefore vacated the dismissal of plaintiffs' claim for damages, directing that the action be stayed pending resolution of the ownership issue. See Aulston v. United States, 823 F.2d 510, 514 (Fed.Cir.1987).
22
Plaintiffs returned to the Federal District Court in Colorado to seek review of the IBLA's decision, and the district court affirmed the IBLA. See Aulston v. United States, No. 87-F-1144 (D.Colo. Aug. 4, 1988). Plaintiffs appealed.
II.
23
Our appellate jurisdiction to review a final order of the district court is based on 28 U.S.C. Sec. 1291 (1988). Plaintiffs brought their action under 43 U.S.C. Sec. 1745 (1982), and appealed to the IBLA pursuant to 43 C.F.R. Sec. 1964.4 (1989). The district court's jurisdiction to review IBLA decisions derives from 28 U.S.C. Sec. 1331 (1988) read in conjunction with 5 U.S.C. Secs. 701-706 (1988).4
24
On appeal from a district court's review of an agency decision, " 'the identical standard of review is employed at both levels; and once appealed, the district court decision is accorded no particular deference.' " Webb v. Hodel, 878 F.2d 1252, 1254 (10th Cir.1989) (quoting Brown v. United States Dep't of the Interior, 679 F.2d 747, 748-49 (8th Cir.1982)). Recently, the Supreme Court has reiterated the analysis a court undertakes when it reviews the validity of an agency's interpretation of a statute the agency is charged with administering:
25
"We first ask 'whether Congress has directly spoken to the precise question at issue. If the intent of Congress is clear, that is the end of the matter; for the court, as well as the agency, must give effect to the unambiguously expressed intent of Congress.' 'In ascertaining the plain meaning of the statute, the court must look to the particular statutory language at issue, as well as the language and design of the statute as a whole.' But 'if the statute is silent or ambiguous with respect to the specific issue, the question for the court is whether the agency's answer is based on a permissible construction of the statute,' that is, whether the agency's construction is 'rational and consistent with the statute.' "
26
Sullivan v. Everhart, --- U.S. ----, 110 S.Ct. 960, 964, 108 L.Ed.2d 72 (1990) (citations omitted). However, "[i]f a court, employing traditional tools of statutory construction, ascertains that Congress had an intention on the precise question at issue, that intention is the law and must be given effect." Chevron, U.S.A., Inc. v. Natural Resources Defense Council, 467 U.S. 837, 843 n. 9, 104 S.Ct. 2778, 2781 n. 9, 81 L.Ed.2d 694 (1984).
III.
A.
27
In interpreting statutes, we begin with the relevant language. When the terms of a statute are unambiguous, our inquiry is complete, except in rare and exceptional circumstances. See Rubin v. United States, 449 U.S. 424, 430, 101 S.Ct. 698, 701-02, 66 L.Ed.2d 633 (1981). In interpreting the relevant language, however, we look to the provisions of the whole law, and to its object and policy. See Dole v. United Steelworkers, --- U.S. ----, 110 S.Ct. 929, 934, 108 L.Ed.2d 23 (1990).
28
The 1914 Act creates power in the federal government to reserve the named resources in federal patents for "[l]ands withdrawn or classified as phosphate, nitrate, potash, oil, gas, or asphaltic minerals, or which are valuable for those deposits." 30 U.S.C. Sec. 121 (emphasis added). The operative word "gas" has numerous meanings in common speech,5 in the natural sciences, and in various legal and industrial contexts. Congress' employment of the word in a statute creating power to reserve natural resource rights indicates that "gas" should be understood to mean a natural resource in the legal and technical context of its commercial exploitation. Even within this context, however, the word "gas" has meanings supporting both sides of this dispute.6
29
Plaintiffs vigorously maintain that the structure of the relevant language of the 1914 Act reflects a clear intent to reserve only hydrocarbon gas and to convey all other gas in the land patent. In the 1914 Act, the word "gas" appears sandwiched between "oil" and "asphaltic minerals," assertedly two "fuel minerals,"7 and after a listing of phosphate, nitrate, and potash, assertedly three "fertilizer minerals." It would make no sense, plaintiffs argue, for the drafter to insert "gas" within a grouping of fuel minerals if the word was intended to refer to noncombustible gases such as carbon dioxide. According to plaintiffs, Congress intended the courts to apply the principles of ejusdem generis8 to limit the term "gas" to hydrocarbon gas.
30
This structural argument overwhelmingly supports the proposition that gas indirectly or directly valuable for fuel was intended to be reserved. Plaintiffs would have us infer, however, that Congress actually considered the combustible and noncombustible components of naturally occurring underground gas and expressed its intent to reserve only combustible gas by its choice of the sequence in which the reserved minerals were listed. This proposed interpretation immediately prompts us to ask why Congress did not merely reserve "fuel gas" in lieu of relying on ejusdem generis. The manipulability of the rule was well-recognized even during the era of the 1914 Act:
31
"If we should apply the rule of ejusdem generis, what qualities or peculiarities of the specified type 'coal,' shall be considered in determining the classification intended by the use of the word 'mineral'? Are we to classify according to value? If so, can it be said that oil or gas on the one hand and coal on the other are of different kinds or species of minerals? If we classify as to use, is it not true that all three are used for fuel? Shall the classification be determined by the form, density, color, weight, value or uses of the particular species mentioned? Taking either value, use, or nature or origin as the basis of the classification mentioned, can we say that oil and coal do not belong to the same class? ... Such evident difficulty in applying the rule of ejusdem generis to the terms of the reservation under consideration renders it an unsafe guide, and we do not believe any aid in the interpretation of the terms used in the reservation will be afforded by such rule."
32
Luse v. Boatman, 217 S.W. 1096, 1099 (Tex.Civ.App.1919).
33
Indeed, no clear indication exists what classification method Congress would have intended the reader to use. The six enumerated substances constitute one class if the class is defined as "nonmetalliferous minerals." Plaintiffs' suggested subclasses of fuel and fertilizer minerals is another possibility.9 Representative Scott Ferris, the Chairman of the House Committee on the Public Lands in 1914, appeared to have thought that each enumeration may have constituted a separate "class" of minerals. See infra at 593. The choice of class thus seems to depend primarily on the interpretive result one wants to reach, rather than on a clear indication of congressional intent.
34
Moreover, in Northern Natural Gas Co. v. Grounds, 441 F.2d 704, 711 (10th Cir.), cert. denied, 404 U.S. 951, 92 S.Ct. 268, 30 L.Ed.2d 267 (1971), we rejected the application of ejusdem generis in construing an oil and gas lease. Indeed, the rule of ejusdem generis has had "little application in cases dealing with oil and gas." R. Hemingway, Law of Oil & Gas 4-5 (West 1983 2d ed.). We conclude that the text of the 1914 Act gives no indication whether Congress intended to prevent carbon dioxide gas from passing to the patentee.
B.
35
We next address plaintiffs' historical analysis of the circumstances surrounding the enactment of the 1914 Act and related acts, employing materials from Congressional Reports and debates, as well as from the Department of the Interior and its subdivisions responsible for managing federal lands. They first contend that the 1914 Act's relationship to the Pickett Act of 1910 reflects Congressional intent to restrict the reservation of gas to hydrocarbon gas. As discussed above, the Pickett Act provided a procedure by which the Department of the Interior could withdraw lands from homestead entry. The 1914 Act provided for homestead entry onto these withdrawn lands, subject to a reservation to the United States in the enumerated resources "on account of which the lands were withdrawn or classified or reported as valuable." 30 U.S.C. Sec. 121. The quoted language, maintain plaintiffs, reflects an intent to limit the scope of the enumerated substances to those deposits "on account of which the lands were withdrawn." Id. Because the lands in question purportedly were withdrawn "on account of" petroleum,10 carbon dioxide gas deposits are excluded from the "oil and gas" reservations in plaintiffs' patents.
36
Plaintiffs' argument is unconvincing. First, plaintiffs point to no administrative fact-findings that their lands actually were the subject of petroleum withdrawals.11 The 1914 Act also applies to lands "classified or reported as valuable" for the six enumerated resources. Id. The IBLA noted that "[t]here is no evidence that the land involved herein was withdrawn, classified, or reported as valuable on account of carbon dioxide. However, the mineral reservations clearly embrace the term 'gas.' We must, therefore, presume that the land was either withdrawn, classified, or reported as valuable on account of 'gas.' " Lanier, 93 Interior Dec. at 70 n. 6.
37
In addition, while there is no evidence that their lands were withdrawn specifically "on account of" carbon dioxide gas, evidence that the "gas" on account of which the lands were withdrawn, classified, or reported as valuable excluded carbon dioxide is also absent. It is true that such withdrawals were termed "petroleum" withdrawals in the Department's yearly reports to Congress, see, e.g., Letters from the Secretary of the Interior to Congress dated Dec. 13, 1912 and Dec. 16, 1913, supra, but plaintiffs concede that the withdrawals encompassed oil and "gas." See Opening Brief at 19. Congress in the Pickett Act of 1910 excepted "gas" in withdrawn lands from "exploration, discovery, occupation and purchase" under federal mining laws. 36 Stat. 847. Plaintiffs provide us no reason for construing the term narrowly in the Pickett Act of 1910. Indeed, two years before the 1914 Act was passed, the Pickett Act was amended to exempt nonmetalliferous minerals, indubitably encompassing carbon dioxide gas. See 37 Stat. 497. We do not agree with plaintiffs that the Pickett Act somehow forces a limiting construction on the word "gas" in the 1914 Act. It is entirely plausible that Congress contemplated the raw natural gas stream from a gas well in both acts.
38
Plaintiffs next contend that Congress knowingly adopted the definition of gas then used by the sub-agencies of the Department of the Interior charged with the administration of federal lands. A 1913 treatise concerning the classification of federal lands published by the United States Geological Survey, for example, described the immediate purpose of classifying oil and gas land "to withhold from entry all lands containing valuable deposits of fluid hydrocarbons pending the enactment of adequate legislation providing for their disposition." Bulletin 537 at 117. Assuming that Congress adopted and approved this language, it reveals no clear intent to reserve only hydrocarbon gas.12 Indeed, that same document reflects awareness that "oil and gas" may encompass more than hydrocarbons. For instance, the Bulletin defined oil and gas as being composed "for the most part of carbon and hydrogen." Id. at 112 (emphasis added). Although these other substances composing oil and gas remain unnamed, Congress was probably aware that while "gas" usually meant fuel gas, it also could mean noncombustible, naturally-occurring underground gases such as the carbon dioxide at issue here. See e.g., Mineral Resources of the United States, 323-333 USGS Bull., Dep't of the Interior (1911) (showing gaseous components of natural gas fields in California, including carbon dioxide).
39
The Department of the Interior refers several times in connection with the entry acts to the reservation of "fuel minerals" and "fuel gases." For example, Franklin K. Lane, then the Secretary of the Department of the Interior, characterized coal, phosphate, oil, gas, potassium, and sodium as fuel and fertilizer minerals. See rec., vol. II, at 99 (Letter from Franklin K. Lane, Secretary of the Department of the Interior to Rep. Scott Ferris, Chairman of the House Committee on Public Lands (May 1, 1914) (concerning H.R. 16136, reserving minerals to United States)); see also id. at 116 (Letter from Franklin K. Lane, Secretary of the Interior to Sen. Henry L. Myers, Chairman of the Committee on Public Lands (Jan. 10, 1916) (concerning S. 777, referring to enumerated substances as fuel and fertilizer minerals)); id. at 141 (Letter from First Assistant Secretary of the interior A.A. Jones to Sen. Henry L. Myers, Chairman of the Committee on Public Lands (Sept. 16, 1914) (concerning S. 6484 extending reservations to Alaska and referring to definite policy of separate dispositions of "surface estates and mineral deposits in certain classes of important fuel and fertilizer minerals")).
40
Plaintiffs ask us to infer from these executively generated materials that Congress clearly adopted a narrow interpretation of gas. We note first that plaintiffs' citations from historical sources are selective. Other items of correspondence concerning the same subject matter simply enumerate the listed substances. See, e.g., Letter from A.A. Jones, Assistant Secretary of the Interior to Rep. Scott Ferris, Chairman of the House Committee on Public Lands (Jan. 16, 1914); Letter from Franklin K. Lane to Rep. Scott Ferris, Chairman of the House Committee on Public Lands (Mar. 12, 1914). More significantly, the 1914 Act itself incorporated none of the language employed in the letters and documents to which plaintiffs cite. In fact, there is some evidence that some members of Congress rejected the Department's proposed characterization. In testimony concerning a 1914 bill to lease mineral deposits owned by the United States, the following colloquy between the Chairman of the House Public Lands Committee and the Director of the USGS took place:
41
"Rep. Ferris: This bill purports to deal with six classes of deposits in the United States.
42
Mr. Smith: You might make that simpler by saying there are two general classes of deposits, mineral fuels and mineral fertilizers.
43
Rep. Ferris: I was following the wording of the bill."
44
Hearing before the House Committee on the Public Lands, House of Representatives, 63d Cong., 2d Sess., on H.R. 14094 (1914) at 16.
45
Most importantly, six years later in the Mineral Lands Leasing Act of 1920, Congress again employed the word "gas" in an enumeration comparable to the 1914 Act, granting authority to the Department of the Interior to lease "coal, phosphate, sodium, oil, oil shale, or gas" owned by the United States. 41 Stat. 437. The 1920 Act also provided that
46
"the United States reserves the right to extract helium from all gas produced from lands permitted, leased or otherwise granted under the provisions of this Act.... Provided further, That in the extraction of helium from gas produced from such lands, it shall be so extracted as to cause no substantial delay in the delivery of gas produced from the well to the purchaser thereof...."
47
41 Stat. 438 (emphasis added). The emphasized language has meaning only if Congress understood "gas" to mean the raw gas stream from a well, including both combustible and noncombustible components. Aside from the snippets of legislative history such as those discussed above, plaintiffs offer no reason why the word "gas" in these two substantially contemporaneous and interrelated statutes should not be construed in pari materia. At the very least, the 1920 Mineral Lands Leasing Act demonstrates that when Congress intended to legislate concerning naturally occurring underground gases in a generic sense, it chose the word "gas" with full knowledge that the word would be construed to mean combustible and noncombustible gases.13
48
Our review of legislative and historical materials surrounding the enactment of the 1914 Act fails to clear up the ambiguity in the word "gas" as employed in the 1914 Act. Plaintiffs point to nothing in these extrinsic sources even intimating that Congress has "directly addressed the precise question at issue," Chevron, 467 U.S. at 843, 104 S.Ct. at 2782, in favor of their proposed limiting construction. If anything, a comparison of the term "gas" as used in related statutes favors a generic construction of the term, although we believe it equally likely that Congress had no intent whatsoever concerning carbon dioxide gas.
IV.
49
Having concluded that Congress was silent on the question whether carbon dioxide is "gas" within the meaning of the 1914 Act, we next address plaintiffs' argument that we must not defer to the Department of the Interior's construction of the Act. Deference is not warranted, they argue, because there is no "longstanding and consistent agency policy of defining carbon dioxide to be a 'gas.' " Opening Brief at 35.
50
Until the inception of this dispute, the Department of the Interior had no occasion to determine explicitly whether carbon dioxide is "gas" within the meaning of the 1914 Act. Plaintiffs maintain that the determinative administrative interpretations of a statute vesting property rights are those contemporaneous with the passage of the Act, and that those interpretations make clear the Department's original understanding that only fuel gas was reserved. They argue that the Department's current construction of the word "gas" to include carbon dioxide conflicts with its earlier definitions, robbing the current construction of its entitlement to judicial deference. See INS v. Cardoza-Fonseca, 480 U.S. 421, 446 n. 30, 107 S.Ct. 1207, 1221 n. 30, 94 L.Ed.2d 434 (1987) (agency interpretation conflicting with earlier interpretation entitled to considerably less deference than a consistently held view); Shoshone Indian Tribe v. Hodel, 903 F.2d 784, 787 (10th Cir.1990) (same).
51
To support their argument, plaintiffs refer us to Bulletin 537, concerning the classification of the lands of the United States. We have already discussed Bulletin 537, see supra at 592, and we think that it constitutes overwhelming evidence that gas in the Department's view meant "for the most part"14 fuel gas, but not only fuel gas. Plaintiffs provide no conclusive or even persuasive support for their suggested negative inference that only fuel gas constituted gas in the early Department interpretations. It is equally plausible that the Department had in mind the raw natural gas stream from a gas well, the only significantly valuable component of which was fuel gas.
52
This economic fact could well explain why in many Departmental publications the term gas was used mainly in the context of gas in association with oil. See Petroleum Withdrawals and Restorations Affecting the Public Domain, 623 USGS Bull. 59, Dep't of the Interior (1916) ("close analogy between the oil and natural gas industries, at least as far as the production is concerned ") (emphasis added) (citation omitted); Bibliography of North American Geology for 1914, 617 USGS Bull. 295, Dep't of the Interior (1915) (noncombustible gases occurring in oil fields generally not subject of analysis); Useful Minerals of the United States, 585 USGS Bull. 237, Dep't of the Interior (1914) (natural gas is mixture of gaseous hydrocarbons). These documents conflict with the Department's current interpretation concerning carbon dioxide only if we stretch their meaning to support the negative inference suggested by plaintiffs. Indeed, 617 USGS Bulletin, published in 1915, characterized ninety-one percent pure carbon dioxide gas as "natural gas." See 617 USGS Bull. at 203 (table entitled Analyses of Natural Gas From Farnham Dome Utah). We conclude that the Department's interpretation of the 1914 Act to include carbon dioxide gas in the Act's reservation of "gas" does not conflict with its interpretation of the word gas at the time of the Act's passage.
53
Plaintiffs, the government, and intervenors all cite to numerous agency definitions of "gas" issued over the years for various purposes and in various contexts. Plaintiffs argue that these definitions reflect the contradictory and inconsistent agency position on the definition of gas over time. The government and intervenors maintain that they represent the Department's long-standing and consistently held view that "gas" includes carbon dioxide gas.15 Several generalizations can be made about them. First, none of these definitions interpret the 1914 Act. Second, the definitions clearly encompassing noncombustible gases all interpret the Mineral Lands Leasing Act which regulates the conveyance of gas deposits to which the United States holds title. Third, the narrower definitions plaintiffs cite concern specialized issues of regulatory jurisdiction, involve unrelated statutes, or are the products of internal memoranda or particularized factual circumstances. See United Transp. Union v. Dole, 797 F.2d 823, 831 (10th Cir.1986) (Logan, J. concurring) ("judicial deference generally is reserved for agency views that have been reflected in formal pronouncements or have been known through other means for a long time" (emphasis added)).16
54
The law is clear that "great deference" is accorded "consistent and long-standing agency interpretations." Knutzen v. Eben Ezer Lutheran Housing Center, 815 F.2d 1343, 1350 (10th Cir.1987). This deference generally applies, however, to agency interpretations of the statute in question, where the interpreting agency is empowered to administer the statute. See Udall v. Tallman, 380 U.S. 1, 16, 85 S.Ct. 792, 801, 13 L.Ed.2d 616 (1965). In exceptional circumstances, such as where two different statutes were enacted substantially contemporaneously as part of a larger policy or program, or where one statute expressly or implicitly incorporates the language and policy of the other, we believe the agency's interpretation of the related statute should carry some weight so long as the same agency is empowered to administer both statutes. We have previously discussed the relationship of the Mineral Lands Leasing Act and the series of acts, including the 1914 Act, reserving minerals subject to disposition under the 1920 Leasing Act. See supra at 587, 593-594. Based on this relationship, we think that the Department of the Interior's interpretations of the word "gas" in section 181 of the Mineral Lands Leasing Act are entitled to some consideration in reviewing the same agency's interpretation of the word in the 1914 Act.
55
The definitions cited by plaintiffs interpret such temporally and factually distinct statutes as the Outer Continental Shelf Lands Act, 43 U.S.C. Secs. 1331-1356 (1982); see 30 C.F.R. Sec. 259.002 (1989); 30 C.F.R. Sec. 256.40(h) (1989), or involve separate statutory schemes administered by different agencies such as the scope of the Federal Energy Regulatory Commission's jurisdiction under the Natural Gas Act. See Cortez Pipeline Co., 7 F.E.R.C. (CCH) p 61,024 (1979). These wholly distinct interpretations of the word "gas" by agencies other than the Department of the Interior in these other contexts have no bearing on the Department's interpretation of the 1914 Act or of the related Mineral Lands Leasing Act, and do not make the Department's practice internally inconsistent.17 We are also not persuaded that the Interior Department memoranda cited by plaintiffs suffice to alter substantially the Department's longstanding publicly-held view as reflected in the regulations governing the leasing of oil and gas deposits. We conclude that the interpretation at issue is consistent with the Department's interpretation of the word "gas" in related legislation. Some deference to the Department's interpretation under Chevron is therefore appropriate.
V.
56
We now must consider whether the Department of the Interior's construction of the 1914 Act is a permissible one. Sullivan, 110 S.Ct. at 964. To affirm the Department's decision, we "need not conclude that the agency construction was the only one it permissibly could have adopted," nor must it accord with "the reading [we] would have reached if the question initially had arisen in a judicial proceeding." Chevron, 467 U.S. at 843 n. 11, 104 S.Ct. at 2782 n. 11. Rather, we must determine whether it is " 'rational and consistent with the statute,' " Sullivan, 110 S.Ct. at 964 (quoting NLRB v. United Food & Commercial Workers, 484 U.S. 112, 123, 108 S.Ct. 413, 420-21, 98 L.Ed.2d 429 (1987)), taking into account the fact that a consistent and long-standing administrative interpretation of "gas" in the 1914 Act is lacking.
57
The Department's inclusion of carbon dioxide gas within the 1914 Act's reservations certainly does not offend the statute's plain language, which simply refers to "gas."18 Plaintiffs attempt to give this word a limiting construction through the use of legislative and other historical materials. Our own search through these materials revealed no clear congressional intent to exempt carbon dioxide or any other naturally occurring underground gas from the statutory authorization to reserve "gas." Accordingly, we will defer to the IBLA's interpretation unless it is inconsistent with the purpose and policy of the 1914 Act.
58
According to plaintiffs, "[t]he purpose of the 1914 Act was to convey all minerals except these carefully enumerated fuel and fertilizer minerals on account of which the land had been specifically withdrawn." Opening Brief at 27. While this characterization is not wholly inaccurate, it is somewhat incomplete. In enacting the 1914 Act, Congress was attempting to accommodate two concerns: (1) to prevent the mismanagement and waste that would occur if certain valuable resources deemed necessary for the country's economic development fell into the wrong private hands, and (2) to fully realize the nation's agricultural potential through the settlement and development efforts of homestead entrants. See generally United States v. Union Oil Co., 549 F.2d 1271, 1274-76 (9th Cir.) (describing events leading to enactment of 1914 Act and related acts), cert. denied, 434 U.S. 930, 98 S.Ct. 418, 54 L.Ed.2d 291 (1977).
59
Plaintiffs repeatedly point out that, in marked contrast to the Stock Raising Homestead Act of 1916, 43 U.S.C. Secs. 291-302, the 1914 Act reserved only the six enumerated classes of minerals instead of the entire mineral estate. This feature of the 1914 Act presumably resulted from political compromise to overcome the opposition to general reservations by representatives of certain Western states. See, e.g., 51 Cong.Rec. 10493 (1914) (colloquy between Representative Mondell of Wyoming arguing for limited mineral estate and Representative Mann of Illinois suggesting a general mineral reservation). Plaintiffs extrapolate from this feature of the 1914 Act their argument that its reservations should be very narrowly construed to preserve its purpose to convey a limited mineral estate to the homestead entrant or purchaser of the surface estate.
60
The short answer to plaintiffs' argument is that a substantial mineral estate passes to the surface holder regardless of how the express reservation of "gas" in the Act is construed. All metalliferous minerals, as well as those nonmetalliferous minerals not enumerated or reserved, pass to the landowner.19 Moreover, Congress failed to modify the term "gas" in the 1914 Act. Finally, plaintiffs fail to give proper weight to Congress' general purpose to ensure proper management and disposition of the reserved minerals, including gas, by retaining them in the public domain.
61
Part of this general purpose was to lay the groundwork for the rational disposition of these resources. Accordingly, the 1914 Act provided for "the right to prospect for, mine, and remove the same, such deposits to be subject to disposal by the United States only as shall be hereafter expressly directed by law.... Any person qualified to acquire the reserved deposits may enter upon said lands with a view of prospecting for the same." 30 U.S.C. Sec. 122 (emphasis added). When construing the 1914 Act, the law relating to the conveyancing, prospecting for, and exploitation of the reserved substances should be given due regard. In this respect, at least, analyses relating to similar problems in construing private mineral conveyances are instructive.
62
In Northern Natural Gas Co., 441 F.2d 704, we considered a question in the context of an "oil and gas" lease closely analogous to the problem we now confront. The landowner lessors there contended that helium, a noncombustible gas, did not pass to the lessee. Id. at 710. In rejecting the lessors' contention that only combustible gas was meant by the term "gas," we looked first to determine if the parties had a "specific intent" concerning the disposition of helium gas. We concluded that the parties "could not have had any intent with regard to it," id. at 714, because when the leases were entered into, helium was considered an impurity in the natural gas stream. We then tried to determine the parties' general intent. We observed that:
63
"General intent should be discovered not by defining and redefining the terms used but by considering the purposes of the grant in terms of enjoyment of the rights created.
64
"....
65
"In our opinion general intent is closer to original intent than is specific intent which blossoms when a component previously regarded as an impurity becomes valuable. The discovery of the use and value of a component does not expand the grant but the expansion of that discovery into tangible value makes more certain the specific object of the general grant. We conclude that, absent specific reservations, the grant of gas by the leases covered all components of the gas, including helium."
66
Id. at 714-15.
67
The analysis of the leases in Northern Natural Gas, maintain plaintiffs, has no application to the construction of a statute such as the 1914 Act. We disagree. The 1914 Act envisioned that the reserved estates eventually could be the subject of conveyances such as leases. Moreover, the leases in Northern Natural Gas and the reservations in the 1914 Act each create split mineral estates with unique problems common to both. Finally, at its simplest level the 1914 Act operates to regulate executive conveyances of real property owned by the United States. At bottom, both Northern Natural Gas and the dispute here concern what was contemplated in a conveyance of "gas."20
68
We think it fair to say that Congress' general intent in creating the reservation was to put the United States government in a position to convey the same rights a lessor of "oil and gas" could convey to a lessee to enable the latter to "prospect for, mine, and remove the same." 30 U.S.C. Sec. 122. Courts consistently have held that a gas lessee, absent an explicit reservation, is entitled to the raw natural gas stream, whatever its chemical makeup. See Northern Natural Gas, 441 F.2d at 715; Navajo Tribe of Indians v. United States, 364 F.2d 320, 326, 176 Ct.Cl. 502 (1966).
69
The analysis in Northern Natural Gas and Navajo Tribe is nonetheless inapposite, argue plaintiffs, because here the carbon dioxide gas is over ninety-nine percent pure, while in Northern Natural Gas and Navajo Tribe the noncombustible elements were commingled with the combustible elements. We do not think a rule making property rights to different chemical components of natural gas dependent on the level of purity (or impurity) of the gas would aid in the rational development of the law of mineral resource rights. Moreover, as the court in Navajo Tribe wrote:
70
"Although the parties to the lease may have been thinking mainly of fuel-type gases, it is still more realistic to presume that the grant included not only hydrocarbons but the other gaseous elements as well. It follows that, whether its percentage was high or low, the helium component was part of the 'gas deposit' which passed to the lessee."
71
Navajo Tribe, 364 F.2d at 326. This reasoning applies equally well to our view of Congress' intent when it reserved "gas" in the 1914 Act.
72
Other factors influence our conclusion that the Department of the Interior's construction of the 1914 Act is consistent with its purpose. The value of the carbon dioxide gas derives for all practical purposes from its function as a pressurizer and solvent upon being re-injected into "depleted" oil wells. In accord with the 1914 Act's purpose of conserving the nation's fuel resources, reservation of the gas at issue here operates to preserve increasingly scarce domestic sources of fuel. Indeed, a contrary construction would undermine the fuel conservation purpose of the 1914 Act.
73
Hydrocarbon gas and the carbon dioxide gas here in question also serve parallel functions to some extent, a fact well known during the era of the 1914 Act's enactment. See J. Lewis, Methods for Increasing the Recovery from Oil Sands, 148 Bureau of Mines Bull. 90, Dep't of the Interior (1917) (concerning reinjection of hydrocarbon gas and other gases into wells as a method to increase oil recovery). Indeed, "[t]he principle of increasing production [of oil] by forcing air or any other gas through the oil sand, and many other details of operation, [were] covered [as of 1917] by U.S. patents." Id. at 36 n. a (emphasis added). In Utilities Prod. Corp. v. Carter Oil Co., 72 F.2d 655 (10th Cir.1934), we held that an oil lessee had the right to use so-called "dry" hydrocarbon gas to increase oil production. We wrote:
74
"The use of gas for repressurizing was so widely known in the industry by 1917 ... that the Interior Department had prepared and issued a bulletin of 120 pages on the subject. Repressurizing was in common use in the Appalachian fields in 1916."
75
Id. at 659 (emphasis added). To the extent that the value of "gas" derives, or derived, from its utility in oil recovery, its combustibility is irrelevant.
76
We have no way of ascertaining that Congress was aware of the value of gas in oil recovery, or whether it intended to reserve it for this purpose. However, had Congress been aware of the value of carbon dioxide gas in the recovery of oil, it strains credulity to conclude that Congress would have created the separate gas estates plaintiffs suggest. We therefore conclude that the Department of the Interior's construction of the 1914 Act's reservation of "gas" to include carbon dioxide gas is "reasonable in light of the statutory purpose." Zenith Radio Corp. v. United States, 437 U.S. 443, 455, 98 S.Ct. 2441, 2448, 57 L.Ed.2d 337 (1978).
VI.
77
The district court's order is AFFIRMED.
1
In the 1930s, carbon dioxide gas had a limited commercial value in the making of dry ice for refrigeration
2
The Pickett Act also authorized withdrawals to allow time for classification of lands. See ch. 421, 36 Stat. 847
3
In 1933, the 1914 Act was amended to include reservations of sodium and sulphur. See Act of Mar. 4, 1933, ch. 278, 47 Stat. 1570 (codified at 30 U.S.C. Sec. 124 (1988))
4
Intervenors assert that this action is time-barred under the statute of limitations contained in 30 U.S.C. Sec. 226-2 (1988). This limitation does not apply to actions under the FLPMA, but rather to the validity of lease permits issued pursuant to the Mineral Lands Leasing Act, 30 U.S.C. Secs. 181-263 (1988). See Park County Resource Council v. United States Dep't of Agric., 817 F.2d 609, 616 (10th Cir.1987) (30 U.S.C. Sec. 226-2 applies to actions contesting agency decisions made under the Mineral Lands Leasing Act)
5
A typical dictionary definition of gas reads: "1: a fluid (as air) that has neither independent shape nor volume but tends to expand indefinitely ... 2a: a gas or gaseous mixture with the exception of atmospheric air--not used scientifically b: a gas or gaseous mixture (as laughing gas or ethylene) used to produce anesthesia c: a combustible gaseous mixture (as for fuel or illumination) ... 3 slang: empty boasting talk ... 4: the state of having or an accumulation of gas in the digestive tract; also: distress caused by this 5: a substance (as a war gas or tear gas) whether gaseous, liquid, or solid under ordinary conditions that can be used to produce a poisonous, asphyxiating or irritant atmosphere ... 6a: gasoline b: the accelerator of a gasoline powered vehicle...." Webster's Third New Int'l Dictionary 937 (1981)
6
A widely used manual of oil and gas law contains numerous definitions of the word gas. The first two are:
" 'Any fluid, either combustible or noncombustible, which is produced in a natural state from the earth and which maintains a gasous or rarefied state at ordinary temperature and pressure conditions.' 30 C.F.R. Sec. 221.2(o) (1980). In the oil and gas industries, it means natural gas.
" 'Twenty-three states define gas as all natural gas, including casinghead gas, and all hydrocarbons not defined as oil. Generally, the remaining states describe the definition of a gas well but do not specifically define natural gas.' 26 Oil & Gas Compact Bull. 55 (June 1967)."
8
H. Williams and C. Meyers, Oil & Gas Law, Manual of Terms 389 (1987)
The term "natural gas" also has various definitions within the industry:
"Hydrocarbons which at atmospheric conditions of temperature and pressure are in a gaseous phase."
Id. at 588.
Nonetheless, one commentator writes:
" 'The ordinary rarefied or gaseous hydrocarbons found in the earth are referred to generally as "natural gas." Non-combustible natural gases occurring in the earth, such as carbon dioxide, hydrogen sulfide, helium and nitrogen, are generally referred to by their proper chemical names. Often, however, non-combustible gases are found in combination with combustible gases and the mixture is referred to generally as "natural gas," without any attempt to distinguish between the combustible and non-combustible gases.' "
Id. (quoting Pruitt, Mineral Terms--Some Problems in Their Use and Definition, 11 Rocky Mtn. Min.L.Inst. 1, 16 (1966)) (emphasis added). In 1921, the United States Geological Survey considered "natural gas" to be a "mechanical mixture" of various hydrocarbons and nonhydrocarbon gaseous constituents. See Helium Bearing Natural Gas, 86 USGS Bull. 36, Dep't. of the Interior (1921).
7
The phrase "fuel mineral" appears nowhere in the 1914 Act. Various executive officials referred to reservations of "fuel minerals" in the 1914 Act. See infra at 592
8
Ejusdem generis is an intrinsic aid to statutory construction. "Where general words follow specific words in a statutory enumeration, the general words are construed to embrace only objects similar in nature to those objects enumerated by the preceding specific words." 2A N. Singer, Sutherland Statutory Construction Sec. 47.17 (1984) (footnote omitted)
9
This argument is undermined by the judicial rejection of the characterization of "oil" as a specific word. In Brennan v. Udall, 251 F.Supp. 12 (D.Colo.1966), aff'd, 379 F.2d 803 (10th Cir.), cert. denied, 389 U.S. 975, 88 S.Ct. 477, 19 L.Ed.2d 468 (1967), for example, the word "oil" in the 1914 Act was construed to include oil shale, a solid sedimentary rock containing kerogen rather than petroleum. See also Northern Natural Gas Co. v. Grounds, 441 F.2d 704, 711 (10th Cir.), cert. denied, 404 U.S. 951, 92 S.Ct. 268, 30 L.Ed.2d 267 (1971) (rejecting characterization of "oil" as specific term operating to limit definition of "gas" in lease to combustible gas only); Navajo Tribe of Indians v. United States, 364 F.2d 320, 327, 176 Ct.Cl. 502 (1966) (refusing to apply ejusdem generis to "oil and gas")
Brennan and Northern Natural Gas also preclude plaintiffs' argument that no drafter of a statute would list five "specific" minerals and put the more generic term "gas" somewhere in between them. In our opinion in Brennan, we held that "oil" in the 1914 Act was to be broadly defined to include kerogen, a substance containing no oil. In Northern Natural Gas, we held that the words "oil" and "gas" have equal status. See 441 F.2d at 711. Other minerals enumerated in the Act are thus clearly not as "specific" as plaintiffs would have us believe.
10
So-called "petroleum withdrawals" were common under the Pickett Act and were also part of the practice of the Interior Department prior to the passage of the Pickett Act. See supra at 585-86
11
In their Reply Brief at 6 n. 2, plaintiffs assert that "oil permits" were what led to the reservation of "oil and gas" in plaintiffs' patents under the 1914 Act. The oil permits to which plaintiffs refer appear in the various patentees' waivers and consents to the 1914 Act's reservations in oil and gas in their patents. See, e.g., rec., vol. II, at 181. These permits were considered permits for "oil and gas" by the Department of the Interior. See id. at 182. Although not entirely clear, these prospecting permits appear to refer to the Mineral Lands Leasing Act of 1920's provisions allowing private persons to prospect for minerals owned by the United States. See id. at 189 (referring to "permit to prospect for oil and gas under the Act of February 25, 1920 (41 Stat. 437)"). As we discuss infra at 25-26, the Mineral Lands Leasing Act defined gas broadly to include both hydrocarbon and nonhydrocarbon gases. Therefore, we do not believe these permits force a limiting construction on the reservations in the 1914 Act to hydrocarbon gas only. To the contrary, they tend to favor a construction of "gas" in pari materia with the Mineral Lands Leasing Act
12
In support of its argument that Congress adopted this definition, plaintiffs cite to one comment by Representative Mondell, the 1914 Act's sponsor, in House debate on the 1914 Act. Representative Mondell stated:
"[I]f land is withdrawn for oil, coal and gas, the two being always coupled, the reservation would be at the oil and the gas and the coal."
51
Cong.Rec. 10,493 (1914); rec., vol. II, at 22 (emphasis added)
In our view this statement again supports the proposition that fuel gas was the primary, if not the only, concern of Representative Mondell. It does not mean that he approved of the USGS publications on the subject. It also does not mean that he, or Congress for that matter, intended to convey all other types of gas to the patentee.
Were this statement given the literal import that plaintiffs suggest, certain types of fuel gas such as "dry gas" would pass to the patentee because it is not "coupled" with oil. See 8 H. Williams and C. Meyers, Oil & Gas Law, Manual of Terms, 283 (1987) (dry gas is gas produced from a stratum that does not contain crude oil). On the other hand, it was well known at the time that nonhydrocarbon gases often are "coupled" with oil. See Mineral Resources of the United States, 323-333 USGS Bull., Dep't. of the Interior (1911) (indicating composites of natural gas in California fields as including significant nonhydrocarbon constituents); Helium-Bearing Natural Gas 86 USGS Bull. 36 (nonhydrocarbon gases occur in most natural gas and are important constituents in some varieties). Perhaps because of these uncertainties Congress saw fit to reserve "gas" regardless of its chemical composition. Plaintiffs point to no legislative history dictating otherwise.
13
It is conceivable that Congress intended "gas" to mean hydrocarbon gas only in the 1914 Act, and then used the same word in the 1920 Mineral Lands Leasing Act generically to mean naturally-occurring underground gases. However, two years after the enactment of the 1920 Mineral Lands Leasing Act, Congress reserved "coal, oil or gas" in Alaska patents without qualifying or amending the reach of the term "gas." See Act of March 8, 1922, ch. 96, 42 Stat. 415 (codified as amended at 43 U.S.C. Secs. 270-11 to 270-12), repealed in part by FLPMA Sec. 703(a), 90 Stat. 2790 (1976). Given the explicit concern over helium in the Mineral Lands Leasing Act and the implicit assumption that "gas" included helium, it seems far-fetched indeed to conclude that Congress would have reserved fuel gas only in the 1922 Act. It also seems unlikely that Congress would consciously use "gas" to mean fuel gas in 1914, then use "gas" to mean naturally-occurring underground gases in 1920, and then revert to the narrow meaning in the Alaska gas reservations. That Congress would reserve fuel gas only in the contiguous United States and then reserve gas in the generic sense in Alaska without making itself more explicit seems equally irrational. The most rational reading is that Congress intended "gas" to mean the same thing in all three statutes
14
Other USGS Publications make it clear that the Agency considered carbon dioxide to be a component of natural gas. See, e.g., Mineral Resources of the United States, 323-333 USGS Bull., Dep't of the Interior (1911) (table entitled "The Composition of Natural Gas" includes hydrocarbons, carbon dioxide, and other gases)
15
The Department of the Interior, for purposes of the Mineral Lands Leasing Act has defined "gas" broadly. See, e.g., 55 Interior Dec. 502, 511, 521 (1936) (providing for royalty "on gas including inflammable gas, helium, carbon dioxide and all other natural gases and mixtures thereof" under Mineral Lands Leasing Act) (emphasis added); 30 C.F.R. Sec. 221.2(o) (1942), currently codified at 43 C.F.R. Sec. 3000.0-5(a) (1989) ("gas" under Mineral Lands Leasing Act is "any fluid, either combusible or noncombustible, which is produced in a natural state from the earth and which maintains a gaseous or rarefied state at ordinary temperatures and pressure conditions"); 30 C.F.R. Sec. 206.151 (1989) (" '[g]as' means any fluid, either combustible or noncombustible, hydrocarbon or nonhydrocarbon, which is extracted from a reservoir and which has neither independent shape nor volume" for purposes of Bureau of Land Management's leasing of gas on Indian Lands)
In other statutory contexts, the definition of gas is arguably narrower. See 30 C.F.R. Sec. 259.002 (1989) (" 'Gas means natural gas as defined by the Federal Energy Regulatory Commission,' " for purposes of administering the Outer Continental Shelf Lands Act). The Federal Energy Regulatory Commission ruled in 1979 that the carbon dioxide at issue here was not "natural gas" for purposes of jurisdiction under the Natural Gas Act. See Cortez Pipeline Co. 7 F.E.R.C. (CCH) p 61,024 (1979); see also rec., vol. II, at 160 (memorandum from Solicitor of the Department of the Interior to the Secretary of the Department of Interior (dated April 9, 1931) noting that issuance of prospecting permits for carbon dioxide gas under Mineral Lands Leasing Act could not violate oil and gas conservation policy of 1929).
16
The rationale for disregarding internal memoranda in determining agency positions for purposes of deference is bound up with the reason for considering the consistency of agency views in the first place. In Udall v. Tallman, 380 U.S. 1, 16, 85 S.Ct. 792, 801, 13 L.Ed.2d 616 (1965), Chief Justice Warren wrote that "[w]hen faced with a problem of statutory construction, this Court shows great deference to the interpretation given the statute by the officers or agency charged with its administration." Part of the reason there for deferring to the Department of the Interior's construction of an Executive Order was that the interpretation had long been a matter of "public record and discussion." Id. at 17, 85 S.Ct. at 802. The Court quoted an earlier case for its rationale:
" '[G]overnment is a practical affair intended for practical men. Both officers, law-makers and citizens naturally adjust themselves to any long-continued action of the Executive Department--on the presumption that unauthorized acts would not have been allowed to be so often repeated as to crystallize into a regular practice. That presumption is not reasoning in a circle but the basis of a wise and quieting rule that in determining the meaning of a statute or the existence of a power, weight shall be given to the usage itself--even when the validity of the practice is the subject of investigation.' "
Id. (quoting United States v. Midwest Oil Co., 236 U.S. 459, 472-73, 35 S.Ct. 309, 313, 59 L.Ed. 673 (1915)).
17
Plaintiffs also rely on 43 C.F.R. Sec. 2880.0-5(g) (1988), which defines "[o]il or gas" as "oil, natural gas, synthetic liquid or gaseous fuels, or any refined product produced therefrom." This regulation parrots the language in the Mineral Lands Leasing Act's provisions governing rights-of-way for pipelines through federal lands. See 30 U.S.C. Sec. 185 (1988). It is by no means clear that this definition excludes carbon dioxide gas. Indeed, in Exxon Corp., 94 Interior Dec. 139 (1987), the IBLA determined that the term natural gas includes naturally produced carbon dioxide gas within the meaning of 30 U.S.C. Sec. 185 and 43 C.F.R. Sec. 2880.0-5(g). This language, in any event, in no way renders internally inconsistent the Department of the Interior's forty-five year old interpretation of "gas" deposits within the meaning of section 181 of the Mineral Lands Leasing Act
18
Nonfuel gases have been determined to be "gas" within the meaning of various other statutes in the face of arguments that the term "gas" referred only to fuel gas. See, e.g., Reich v. Commissioner, 454 F.2d 1157, 1158 (9th Cir.1972) (geothermal steam is a "gas" within meaning of Internal Revenue Code provision providing depletion allowance for oil and gas wells); Amoco Prod. Co. v. Wyoming, 751 P.2d 379, 383 (Wyo.1988) (term "natural gas" in state excise tax statute includes "all gases that occur naturally in gas produced from drilled wells")
19
Plaintiffs hotly dispute intervenors' argument that carbon dioxide gas should be reserved because no specific intent exists to exclude it. This conceptual approach is flawed, plaintiffs contend, because requiring specific intent to exclude would effectively reserve all minerals the exclusion of which is not made clear in the language or the legislative history of the 1914 Act. We disagree. Specific intent to exclude such metalliferous metals as gold, silver and copper, etc. exists because they are not enumerated in the act. "Gas," in contrast, is enumerated. Intervenors refer, quite obviously, to the absence of specific intent to place a limiting construction on the word gas
20
If anything, plaintiffs' distinction between the private conveyances in Northern Natural Gas and the federal patent conveyances regulated by the 1914 Act does not favor their position. Land grants are usually construed favorably to the United States. See Watt v. Western Nuclear, Inc., 462 U.S. 36, 59-60, 103 S.Ct. 2218, 2231-32, 76 L.Ed.2d 400 (1983)
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Case: 19-30334 Document: 00515515323 Page: 1 Date Filed: 08/04/2020
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
United States Court of Appeals
Fifth Circuit
No. 19-30334 FILED
August 4, 2020
Lyle W. Cayce
WILLIAM T. CLARK, III; MICHAEL S. PEARL, Clerk
Plaintiffs - Appellants
v.
WRIGHT NATIONAL FLOOD INSURANCE COMPANY, Appears solely in
its capacity as a Write-Your-Own Program,
Defendant - Appellee
Appeal from the United States District Court
for the Eastern District of Louisiana
USDC No. 2:18-CV-4852
Before DENNIS, SOUTHWICK, and HO, Circuit Judges.
PER CURIAM:*
The plaintiffs brought a claim for breach of contract against the
defendant insurance company alleging the company failed to issue payment
for losses covered under the plaintiffs’ policy. The district court entered
summary judgment in favor of the company because the plaintiffs failed to
comply with the policy’s requirements for filing proofs of loss. We AFFIRM.
* Pursuant to 5TH CIR. R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH
CIR. R. 47.5.4.
Case: 19-30334 Document: 00515515323 Page: 2 Date Filed: 08/04/2020
No. 19-30334
FACTUAL AND PROCEDURAL BACKGROUND
The home of the plaintiffs, William T. Clark III, and his son, Michael S.
Pearl, sustained damage due to flooding that occurred on March 11, 2016 and
again on August 12, 2016. Clark had a Standard Flood Insurance Policy
(“SFIP”) issued by the defendant Wright National Flood Insurance Company
in its capacity as a Write-Your-Own (“WYO”) insurance carrier participating
in the National Flood Insurance Program (“NFIP”).
For the March 2016 flood, Clark reported his losses on March 13. Bryan
Nixon, a claims inspector hired by a claims corporation working for Wright,
inspected Clark’s home on March 17. Clark submitted a letter he represented
as his proof of loss (“POL”) on April 27, showing building and contents losses
over the policy limits. The POL also contained the statement, “I hereby declare
and attest that the information contained in this letter is true and correct to
the best of my knowledge.” The deadline to submit a POL for the March flood
was July 11. Clark refused to sign a proposed POL that was prepared by
Nixon. Clark again refused to sign revised damage estimates and POLs
prepared by Nixon on May 16, 2017, and again on June 22. The plaintiffs
allege Nixon’s estimates and POLs, which were well under the policy limits,
failed to include certain flood-related damages. On January 22, 2018, though,
Clark submitted a POL for (1) the “undisputed building and contents losses for
the March flood,” and (2) the total building and contents losses claimed in the
April 27 POL. On January 29, Wright issued payment to Clark for only the
total undisputed amount of building and contents losses.
For the August 2016 flood, Clark reported his losses on August 17. Alan
Nunnelley, a claims inspector hired by a claims corporation working for
Wright, inspected Clark’s home on August 21 and provided Clark with a
damage estimate and a proposed POL dated October 25. Clark refused to sign
the proposed POL and submitted a letter he represented as his POL on
2
Case: 19-30334 Document: 00515515323 Page: 3 Date Filed: 08/04/2020
No. 19-30334
December 7, 2016, which contained an invoice for contractor repairs, the
adjuster’s list of content losses, and the same declaratory statement found in
the April 27, 2016 POL for the March flood. The deadline to submit a POL for
the August flood was December 31, 2017. Clark again refused to sign a revised
and final POL prepared by Nunnelley on September 5, 2017. On February 7,
2018, Clark submitted a POL for $63,663.82, which were the undisputed losses
from the August flood, but the POL also stated that “there are additional
contents claims to be addressed later,” specifically the alleged losses listed in
Clark’s December 7, 2017 POL. The parties now agree that Wright issued
payment to Clark for the total undisputed amount of losses for the August flood
sometime in early 2019 after the Federal Emergency Management Agency
(“FEMA”) granted a limited waiver of the SFIP’s POL requirements to allow
Wright to tender the undisputed loss amount.
Clark and Pearl, litigating pro se, filed suit against Wright for breach of
contract on May 14, 2018, alleging Wright failed properly to adjust, settle, and
pay their claims for covered losses from the two floods. They seek as relief the
difference between the full amount of covered losses as alleged in their April
and December 2016 POLs and what Wright has already paid in undisputed
losses. Wright moved for summary judgment on January 23, 2019. The
district court granted Wright’s motion, concluding that: (1) Clark’s April and
December 2016 POLs were not sworn claims as required by the SFIP;
(2) Clark’s December 2016 POL failed to state the amount that the plaintiffs
claimed; (3) Clark’s January and February 2018 POLs were untimely; (4) the
plaintiffs’ waiver and estoppel arguments were improper; and (5) the plaintiffs
failed to meet their burden for additional discovery. The district court entered
judgment dismissing the case. Clark and Pearl timely appealed, pro se. Clark
and Pearl challenge all five conclusions of the district court.
3
Case: 19-30334 Document: 00515515323 Page: 4 Date Filed: 08/04/2020
No. 19-30334
DISCUSSION
Before analyzing the district court’s five conclusions that appellants
challenge, we discuss the insurance program that is involved here.
I. National flood insurance
The National Flood Insurance Act, 42 U.S.C. § 4001 et seq., established
the NFIP to provide flood insurance at affordable rates. See Ferraro v. Liberty
Mut. Fire Ins. Co., 796 F.3d 529, 531 (5th Cir. 2015). FEMA operates the
program and issues policies directly or through private insurers called WYO
carriers, such as Wright, that are fiscal agents of the United States.
§ 4071(a)(1); Ferraro, 796 F.3d at 531–32. All SFIP policies are issued in a
standard form, which cannot be altered or waived without the written consent
of the Federal Insurance Administrator (“FIA”). Marseilles Homeowners
Condo. Ass’n Inc. v. Fidelity Nat’l Ins. Co., 542 F.3d 1053, 1055 (5th Cir. 2008);
44 C.F.R. § 61.13(d). “An SFIP is a regulation of FEMA, stating the conditions
under which federal flood-insurance funds may be disbursed to eligible
policyholders.” Id. at 1054 (citation omitted). Because all claims for all policies
issued under this program are paid directly from the federal treasury, the
provisions of the SFIP policies must be strictly construed and enforced.
Gowland v. Aetna Flood Ins. Program, 143 F.3d 951, 954 (5th Cir. 1998). An
SFIP policyholder may not sue to recover losses covered under the SFIP unless
the policyholder first “complied with all the requirements of the policy.” 44
C.F.R. § 61, app. A(1), art. VII(R).
II. Clark’s April and December 2016 POLs’ compliance with the SFIP
All the arguments for review arise from the district court’s grant of a
summary judgment. We review a summary judgment de novo, applying the
same standard as the district court. Austin v. Kroger Tex., L.P., 864 F.3d 326,
4
Case: 19-30334 Document: 00515515323 Page: 5 Date Filed: 08/04/2020
No. 19-30334
328 (5th Cir. 2017). “The court shall grant summary judgment if the movant
shows that there is no genuine dispute as to any material fact and the movant
is entitled to judgment as a matter of law.” FED R. CIV. P. 56(a). “A genuine
issue of material fact exists when the evidence is such that a reasonable jury
could return a verdict for the non-moving party. . . . All evidence is viewed in
the light most favorable to the nonmoving party and all reasonable inferences
are drawn in that party’s favor.” Austin, 864 F.3d at 328–29.
Clark and Pearl first argue that their 2016 POLs complied with the
SFIP. The SFIP required Clark, the policyholder, to send Wright a “signed
and sworn to” POL within 60 days of each loss. 44 C.F.R. § 61, app. A(1),
art. VII(J)(4). A policyholder’s failure to provide a compliant POL “relieves the
federal insurer’s obligation to pay what otherwise might be a valid claim.”
Gowland, 143 F.3d at 954. Substantial compliance is not sufficient. Id. Here,
the FIA expressly granted a limited waiver extending the 60-day deadline for
filing POLs for both the March and August 2016 floods. Both the April 2016
POL for the March 2016 flood and the December 2016 POL for the August 2016
flood were timely. At issue is whether these POLs satisfied the SFIP’s
“sworn-to” requirement. According to Clark and Pearl, the declaratory
statement in the 2016 POLs — “I hereby declare and attest that the
information contained in this letter is true and correct to the best of my
knowledge” — satisfies the SFIP’s sworn-to requirement. The district court,
however, concluded that the statement does not satisfy the SFIP’s sworn-to
requirement because the POLs were not notarized and they did not include the
phrase “under penalty of perjury.”
Clark and Pearl contend that their declarations satisfied the sworn-to
requirement because they declared and attested that the information was true
and correct. They argue that sufficed because the SFIP does not define the
term “sworn” and does not require the phrase “under penalty of perjury” or
5
Case: 19-30334 Document: 00515515323 Page: 6 Date Filed: 08/04/2020
No. 19-30334
notarization. Also, as policyholders, they had not been referred to some
statute, court opinion, or other source explaining what it means to swear to the
information. Finally, the NFIP Claims Handbook does not state that the POL
must be notarized or include the phrase “under penalty of perjury.”
The SFIP does not define “sworn.” See 44 C.F.R. §§ 59.1, 61.2. While the
NFIP Claims Handbook states that POLs must be signed and must meet the
requirements of the SFIP, it does not state that POLs must be notarized or
must include the specific phrase “under penalty of perjury.” 1 Nevertheless, as
we pointed out earlier, issued under this program are paid directly from the
federal treasury, SFIP policy provisions must be strictly construed, and that
would include the sworn-to requirement. Gowland, 143 F.3d at 954.
To understand the phrase “sworn to” in a federal regulation, we rely on
a statute explaining that when under any federal regulation a matter is
required to be sworn to in writing, it may be supported by an unsworn, signed
writing declaring the matter to be “true under penalty of perjury,” in a form
substantially similar to “I declare (or certify, verify, or state) under penalty of
perjury that the foregoing is true and correct. Executed on (date).” 28 U.S.C.
§ 1746. FEMA’s model POL form includes an attestation whereby
policyholders “declare under penalty of perjury” that the information in their
POL is “true and correct. 2 Section 1746 prohibits use of an unsworn
declaration to satisfy a sworn-to requirements for depositions, oaths of office,
or other oaths required to be taken by a “specified official.” § 1746. The statute
makes clear that a “specified official” does not included a notary public. Id.
1 See NFIP Claims Handbook, https://www.fema.gov/media-library-
data/1508950641147-55cd79e196bc6ea15aba1c69bb9f1cef/FINAL_ClaimsHandbook.pdf
(FEMA form F-687).
2 See Proof of Loss form, https://www.fema.gov/media-library-data/1533073015253-
61a3c8a1dce7231a63f4c466a43615a8/FEMA_Form_086-0-09_8-1-2017_proof_of_loss.pdf
(FEMA form 086-0-09).
6
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No. 19-30334
Strictly construing the SFIP, we conclude that “sworn to” requires either
notarization or a declaration substantially similar to “I declare (or certify,
verify, or state) under penalty of perjury that the foregoing is true and correct.
Executed on (date).” § 1746. Neither of Clark’s 2016 POLs satisfy the SFIP’s
sworn-to requirement because neither POL was notarized nor included the
phrase “under penalty of perjury.” The district court did not err in concluding
the same. Because Clark’s 2016 POLs failed to comply with the SFIP’s sworn-
to requirement, the 2016 POLs cannot support a claim for breach of contract.
44 C.F.R. § 61, app. A(1), art. VII(R); Gowland, 143 F.3d at 954.
Clark and Pearl also argue the district court erred in finding that Clark’s
December 2016 POL for the August 2016 flood failed to state an amount
claimed as required by the SFIP. We need not consider this alternative basis
for concluding the December 2016 POL failed to comply with the SFIP because
we have already concluded that the December 2016 POL failed to comply with
the SFIP’s sworn-to requirement and any SFIP noncompliance obviates a
policyholder’s right to recover losses. 44 C.F.R. § 61, app. A(1), art. VII(R);
Gowland, 143 F.3d at 954.
III. Timeliness of Clark’s January and February 2018 POLs
Next, we consider Clark and Pearl’s argument that the district court
erred in finding Clark’s January 2018 POL for the March 2016 flood and
February 2018 POL for the August 2016 flood untimely. The district court held
that the 2018 POLs were untimely because they were submitted after FEMA’s
extension deadlines. The district court further found “no basis to hold that
plaintiffs’ initial, noncompliant proofs of loss allow Wright to accept their
untimely proofs of loss.”
As noted above, Clark filed timely POLs in April 2016 for the March 2016
flood and in December 2016 for the August 2016 flood, but these POLs were
7
Case: 19-30334 Document: 00515515323 Page: 8 Date Filed: 08/04/2020
No. 19-30334
unsworn and thus failed to comply with the SFIP. Clark subsequently filed
POLs that were sworn for purposes of the SFIP, however, these POLs were not
filed until January and February 2018, after the expiration of FEMA’s
extended deadlines for filing POLs for the March and August 2016 floods.
Clark and Pearl rely on unpublished district court decisions for the
proposition that untimely POLs may be considered along with a timely POL if
the supplemental POL is not attempting to claim wholly new losses. See
Stogner v. Allstate Ins. Co., No. 09-3037, 2010 WL 148291 (E.D. La. Jan. 11,
2010); Smith v. American Bankers Ins. Co. of Fla., No. 13-5684, 2014 WL
2155030 (E.D. La. May 22, 2014). Although these cases are non binding, we
acknowledge that this court has not held to the contrary. Nevertheless, even
accepting this proposition as true, Clark’s 2018 supplemental POLs may not
be considered along with the timely 2016 POLs because the 2016 POLs were
noncompliant with the SFIP. We hold that untimely supplemental POLs that
are not attempting to claim wholly new losses may not be considered along
with timely POLs that are otherwise noncompliant with the SFIP. Gowland,
143 F.3d at 954–55. The district court did not err in holding the 2018 POLs
untimely.
IV. Waiver and Estoppel
Clark and Pearl argue that the district court erred in finding there was
no genuine dispute of a material fact concerning their compliance with the
SFIP. According to them, there is a material fact dispute regarding whether
FEMA determined that their 2016 POLs complied with the SFIP.
Before filing this suit for breach of contract in the district court, Clark
and Pearl administratively appealed Wright’s denial of certain losses claimed
for the August flood to FEMA on June 22, 2017. On August 22, 2018, FEMA
issued a decision in which it erroneously stated that Wright had paid the
8
Case: 19-30334 Document: 00515515323 Page: 9 Date Filed: 08/04/2020
No. 19-30334
undisputed contents loss in the amount of $63,663.82 for the August flood
pursuant to the Clark’s February 2018 POL. In addition, FEMA found that
certain content damages were covered by the SFIP. FEMA also stated that the
decision did not prevent the policyholder from submitting any future claims for
items or damages not included in the loss adjustment. Wright subsequently
advised the district court that it had reviewed the matter with FEMA, that
FEMA approved Wright’s request and granted a limited waiver of the SFIP’s
POL requirement with respect to the plaintiffs’ contents claim in the
undisputed amount of $63,663.82 for the August flood, and that Wright then
paid this amount to Clark and Pearl.
Here, Clark and Pearl argue (1) there is a material fact dispute
concerning whether FEMA determined that their original POLs complied with
the SFIP requirements, (2) that the fact that FEMA instructed Wright to pay
for certain damages is strong evidence that FEMA found no deficiencies in
their original POLs, and (3) that there is a material fact dispute concerning
whether FEMA determined that their original POLs were compliant or
whether FEMA ignored the POLs and acted contrary to law when it ordered
Wright to pay damages.
The district court found these arguments to be seeking both waiver of
the SFIP’s POL requirements and equitable estoppel against Wright’s defense
based on noncompliant POLs. First, the district court determined that Clark
and Pearl’s FEMA administrative appeal did not have any bearing on the
issues in the instant case because FEMA addressed whether certain damages
were covered by the SFIP and did not address the SFIP’s POL requirements.
Second, the district court determined that FEMA’s and Wright’s actions could
not operate as a waiver of the obligation of Clark and Pearl to file SFIP-
compliant POLs. As noted above, 44 C.F.R. § 61.13(d) provides “that no
provision of the policy may be altered, varied, or waived without the express
9
Case: 19-30334 Document: 00515515323 Page: 10 Date Filed: 08/04/2020
No. 19-30334
written consent of the Federal Insurance Administrator.” Gowland, 143 F.3d
at 954 (emphasis in original). No such waiver was sought or obtained here.
Last, the district court held that policyholders who have not complied
with the SFIP may not assert equitable estoppel. Indeed, “[w]hen federal funds
are involved, the judiciary is powerless to uphold a claim of estoppel because
such a holding would encroach upon the appropriation power granted
exclusively to Congress by the Constitution.” Id. at 955. Neither this court
nor the Supreme Court has upheld an estoppel claim resulting in the payment
of money out of the United States treasury. We see no error here.
V. Additional discovery
Finally, we consider Clark and Pearl’s argument that the district court
abused its discretion in not allowing them to conduct additional discovery.
Specifically, they argue further discovery would provide evidence of whether
FEMA’s policies and procedures require that POLs must be either notarized or
include the phrase “under penalty of perjury” and that such evidence would
establish a material fact issue as to whether their 2016 POLs complied with
the SFIP. The district court determined that Clark and Pearl failed to
establish a material fact dispute and failed to show how additional discovery
would change the outcome of their claim.
“We review a denial of a Rule 56(d) motion for discovery for an abuse of
discretion.” Smith v. Reg’l Transit Auth., 827 F.3d 412, 417 (5th Cir. 2016). If
the nonmovant shows an inability to support its opposition factually, Rule
56(d) allows a district court to grant additional discovery before ruling on a
motion for summary judgment. FED. R. CIV. P. 56(d). Although such discovery
requests are “broadly favored and should be liberally granted,” the party
seeking discovery must first demonstrate “how additional discovery will create
a genuine issue of material fact.” Smith, 827 F.3d at 422–23. In other words,
10
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No. 19-30334
the requesting party must “set forth a plausible basis for believing that
specified facts, susceptible of collection within a reasonable time frame,
probably exist and indicate how the emergent facts, if adduced, will influence
the outcome of the pending summary judgment motion.” Id. at 423. Thus,
when we evaluate a district court’s denial of additional discovery, “we generally
assess[] whether the evidence requested would affect the outcome of a
summary judgment motion.” Id.
The discovery Clark and Pearl seek regarding FEMA’s policies and
procedures would provide further evidence to support their waiver and
estoppel argument. As noted, though, neither argument is permissible in a
claim for breach of contract under the SFIP in this instance. The evidence
requested therefore would not affect the outcome. The district court did not
abuse its discretion in denying additional discovery.
AFFIRMED.
11
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999 F.2d 1580
Van Durenv.Rohling*
NO. 92-2856
United States Court of Appeals,Fifth Circuit.
Aug 06, 1993
1
Appeal From: S.D.Tex.
2
AFFIRMED.
*
Fed.R.App.P. 34(a); 5th Cir.R. 34.2
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Case: 11-14485 Date Filed: 07/20/2012 Page: 1 of 3
[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
________________________
No. 11-14485
Non-Argument Calendar
________________________
D.C. Docket No. 1:92-cr-00679-FAM-6
HORACE EDWARD LOCKHART,
a.k.a. Clint,
Petitioner-Appellant.
versus
UNITED STATES OF AMERICA,
Respondent-Appellee.
________________________
Appeal from the United States District Court
for the Southern District of Florida
________________________
(July 20, 2012)
Before CARNES, WILSON and ANDERSON, Circuit Judges.
PER CURIAM:
Horace Lockhart, a federal prisoner proceeding pro se, appeals the district
Case: 11-14485 Date Filed: 07/20/2012 Page: 2 of 3
court’s denial of Lockhart’s most-recent motion to dismiss his indictment pursuant
to Federal Rule of Civil Procedure 60(b). Lockhart has previously filed several
motions to vacate under 28 U.S.C. § 2255. This Court also affirmed the district
court’s denial of Lockhart’s previous Rule 60(b) motion—construed as another
§ 2255 motion—because Lockhart had not received permission to file successive
§ 2255 motions. See United States v. Lockhart, 409 F. App’x 307 (11th Cir. 2011)
(per curiam).
On appeal, Lockhart asserts that the indictment in his federal criminal case
failed to charge a federal offense, and thus, the district court lacked jurisdiction
over his case. Lockhart further argues that his counsel was ineffective at trial and
at sentencing in various ways.
We are obligated to inquire into subject-matter jurisdiction sua sponte
whenever it may be lacking and review de novo questions concerning jurisdiction.
Williams v. Chatman, 510 F.3d 1290, 1293 (11th Cir. 2007) (per curiam).
Where, in a purported Rule 60(b) motion, a defendant challenges the
validity of his conviction by seeking to add a new ground for relief or attacking a
district court’s previous resolution of a claim on the merits, the motion is properly
construed as a second or successive 28 U.S.C. § 2255 motion. See id. at 1293-94.
A prisoner may not file a second or successive § 2255 motion without prior
2
Case: 11-14485 Date Filed: 07/20/2012 Page: 3 of 3
permission from this Court. 28 U.S.C. § 2255(h); United States v. Diaz-Clark, 292
F.3d 1310, 1316 (11th Cir. 2002). Absent such permission, the district court lacks
jurisdiction to address the § 2255 motion and must dismiss it. See Williams, 510
F.3d at 1294-95.
Lockhart’s Rule 60(b) motion does not allege any error in his earlier § 2255
proceedings. Rather, it merely raises several bases for relief from his conviction.
His Rule 60(b) motion is therefore properly construed as a second or successive
§ 2255 motion. See id. at 1293-94. Lockhart failed to obtain authorization from
this Court to file this successive § 2255 motion and, accordingly, the district court
correctly determined that it did not have jurisdiction.
AFFIRMED.
3
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543 U.S. 1174
WHITEv.UNITED STATES.
No. 04-8179.
Supreme Court of United States.
February 22, 2005.
1
C. A. 4th Cir. Certiorari denied. Reported below: 101 Fed. Appx. 938.
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873 F.2d 347
277 U.S.App.D.C. 134, 57 USLW 2619
WINTER PARK COMMUNICATIONS, INC., Appellant,v.FEDERAL COMMUNICATIONS COMMISSION, Appellee,Rainbow Broadcasting Company, Metro Broadcasting, Inc.,Winter Park Chamber of Commerce and City of WinterPark, Intervenors.METRO BROADCASTING, INC., Appellant,v.FEDERAL COMMUNICATIONS COMMISSION, Appellee,Rainbow Broadcasting Company and Winter Park Communications,Inc., Intervenors.
Nos. 85-1755, 88-1756.
United States Court of Appeals,District of Columbia Circuit.
Argued Nov. 21, 1988.Decided April 21, 1989.
Appeals from an Order of the Federal Communications commission.
Robert J. Buenzle, with whom Henry E. Crawford, Washington, D.C., was on the brief, for Winter Park Communications, Inc., appellant in No. 85-1755 and intervenor in No. 85-1756.
John H. Midlen, Jr., Washington, D.C., for Metro Broadcasting, Inc., appellant in No. 85-1756 and intervenor in No. 85-1755.
Daniel M. Armstrong, Associate General Counsel, F.C.C., with whom Diane S. Killory, General Counsel, C. Grey Pash, Jr. and Roberta L. Cook, Counsel, F.C.C., Washington, D.C., were on the brief, for appellee. Gregory M. Christopher, Counsel, F.C.C., also entered an appearance for appellee.
Margot Polivy, with whom Katrina Renouf, Washington, D.C., was on the brief, for intervenor Rainbow Broadcasting Co., in Nos. 85-1755 and 85-1756.
C. Brent McCaghren, Winter Park, Fla., and Thomas E. Francis, Orlando, Fla., were on the brief for intervenors City of Winter Park and Winter Park Chamber of Commerce, in No. 85-1755.
Jane Haines, Monterey, Cal., also entered an appearance for intervenor Winter Park Chamber of Commerce, in No. 85-1755.
William Bradford Reynolds, Asst. Atty. Gen., Roger Clegg, Deputy Asst. Atty. Gen. and David K. Flynn and Robert J. Delahunty, Attorneys, Dept. of Justice, Washington, D.C., were on the brief for the U.S., amicus curiae, urging the appeal be delayed pending the Supreme Court's decision.
Before EDWARDS and WILLIAMS, Circuit Judges, and FRIEDMAN,* Circuit Judge, United States Court of Appeals for the Federal Circuit.
Opinion for the Court filed by Circuit Judge HARRY T. EDWARDS.
Opinion concurring in part and dissenting in part filed by Circuit Judge STEPHEN F. WILLIAMS.
HARRY T. EDWARDS, Circuit Judge:
1
In these consolidated cases, Metro Broadcasting, Inc. ("Metro") and Winter Park Communications, Inc. ("Winter") seek review of an order of the Federal Communications Commission ("FCC" or "Commission") awarding Rainbow Broadcasting Company ("Rainbow") a license to operate a UHF television station in Orlando, Florida. Winter argues that the Commission erred in refusing to award it a dispositive preference under section 307(b) of the Communications Act for providing the first local television service to the City of Winter Park, Florida. Metro raises a number of grounds of error, contending principally that the Commission violated the equal protection clause of the Constitution in giving Rainbow credit for minority ownership. On the record before us, we find that the Commission's application of section 307(b) was consistent with FCC precedent. We also find that this case is clearly controlled by West Michigan Broadcasting Co. v. FCC, 735 F.2d 601 (D.C.Cir.1984), cert. denied, 470 U.S. 1027, 105 S.Ct. 1392, 84 L.Ed.2d 782 (1985), in which this court expressly held that the FCC's use of an enhancement for minority status "easily passes constitutional muster." Id. at 613. Accordingly, we deny the petitions for review.
I. BACKGROUND
2
On February 26, 1982, following a rulemaking proceeding, the FCC assigned a new UHF television channel to the City of Orlando, Florida. Amendment of Sec. 73.606(b), Table of Assignments, 50 Rad.Reg.2d (P & F) 1714 (1982). Under the Commission's then-existing "15-mile rule," the channel was available for use in communities located within fifteen miles of Orlando.1 Petitioners Metro and Winter and intervenor Rainbow filed mutually exclusive applications for use of the channel. Metro and Rainbow designated Orlando as their place of license, and Winter specified the neighboring City of Winter Park, but all three applicants proposed to serve the entire Orlando metropolitan area, including Winter Park.
3
When parties file mutually exclusive applications for use of a broadcast channel in different localities, the Commission first determines whether any of the applicants is entitled to a preference under 47 U.S.C. Sec. 307(b) (1982) for providing first or second local service to a community.2 If one applicant receives a section 307(b) preference over the others, then that applicant normally will prevail without a comparative hearing. See WHW Enterprises, Inc. v. FCC, 753 F.2d 1132, 1135 (D.C.Cir.1985). If no community is entitled to a section 307(b) preference, or if more than one applicant specifies the preferred community, the Commission then conducts a comparative hearing to evaluate the qualifications of the competing applicants. See, e.g., Buena Vista Telecasters, 94 F.C.C.2d 625, 628 (Rev.Bd.1983).
4
In a comparative hearing, the Commission weighs both "quantitative" and "qualitative" factors. The quantitative assessment rests on the applicant's proportional integration of ownership into management. If one applicant has a clear quantitative advantage, then that applicant receives the station (assuming that the applicant is otherwise qualified and does not own other media interests). See, e.g., WHW Enterprises, Inc., 89 F.C.C.2d 799, 819 (Rev.Bd.1982), rev. denied, FCC 83-368 (Sept. 15, 1983), aff'd in part and rev'd in part on other grounds, 753 F.2d 1132 (D.C.Cir.1985). If no applicant has a clear qualitative advantage, then the Commission assesses the applicants' relative strengths on a variety of qualitative factors, including minority ownership, local residence, civic participation, and prior broadcast experience. These qualitative enhancements cannot, however, overcome clear quantitative differences. See WHW, 89 F.C.C.2d at 817.
5
After Metro, Winter and Rainbow filed their applications, the proceeding was assigned to an administrative law judge ("ALJ"), who issued a decision awarding the channel to Metro for use in Orlando. Metro Broadcasting, 96 F.C.C.2d 1073 (1983) (Miller, ALJ). The ALJ found that neither the City of Winter Park nor Orlando was entitled to a preference under section 307(b), because the Commission had assigned the channel to the Orlando area, Winter Park was "an integral part of the Orlando Urbanized Area," and the center of Winter Park was less than five miles from the center of Orlando. Id. at 1087. The ALJ then evaluated the qualifications of the applicants themselves, and disqualified Rainbow for "lack of candor" in its application. Of the remaining two applicants, the ALJ found that Metro had a ninety-nine to ten percent quantitative advantage over Winter and that this advantage, together with Metro's various qualitative enhancements, made Metro an "overwhelming comparative winner" over Winter. Id. at 1088.
6
Winter and Rainbow appealed to the FCC's Review Board ("Board"), which reversed the ALJ on the lack-of-candor issue and awarded the channel to Rainbow.3 99 F.C.C.2d 688 (Rev.Bd.1984). The Board agreed with the ALJ that Winter Park was not entitled to a section 307(b) preference. However, the Board reduced Metro's integration credit and found that Rainbow's resulting quantitative advantage was "probably a 'clear' enough difference to be decisional." Id. at 703. The Board also concluded, however, that Rainbow was ahead qualitatively. The Board reviewed a number of factors, emphasizing that Rainbow had 90% hispanic ownership participation, whereas Metro had only one 19.8% partner who was black. Overall, the Board concluded:
7
[A]lthough the qualitative comparison between Rainbow and Metro is close, Rainbow's substantial minority preference, in conjunction with its slight female ownership advantage and solid broadcast experience preference, somewhat outweighs Metro's local residence and civil participation advantage.
8
Id. at 704.
9
Winter and Metro appealed to the Commission, which denied review of the Board's decision largely without discussion, stating merely that it "agree[d] with the Board's resolution of this case." FCC 85-558, slip op. at 2 (Oct. 18, 1985). Winter and Metro appealed to this court.
10
After the cases had been briefed and were awaiting oral argument, the Commission initiated a separate nonadjudicatory proceeding to explore its constitutional and statutory authority for awarding comparative preferences based on race and gender. Reexamination of the Commission's Comparative Licensing, Distress Sales and Tax Certificate Policies Premised on Racial, Ethnic or Gender Classifications, 1 F.C.C. Rcd. 1315 (1986) ("Reexamination "). We then granted the FCC's request for remand to allow the Commission to reexamine whether Rainbow would have received the station absent its preference for minority ownership. On remand, the Commission found that Rainbow had no clear quantitative advantage and that deletion of Rainbow's minority preference could reverse the outcome of the case. 2 F.C.C. Rcd. 1474, 1475 (1987). Accordingly, the Commission ordered the proceeding held in abeyance pending further action in the Reexamination proceeding on use of minority preferences.
11
On December 22, 1987, President Reagan signed into law the continuing resolution for fiscal year 1988, Pub.L. No. 100-202, 101 Stat. 1329 (1987). That resolution contained a provision forbidding the FCC from using any of the appropriated funds "to repeal, to retroactively apply changes in, or to continue a reexamination of" its policies to expand minority and female ownership of broadcasting licenses. 101 Stat. at 1331. Congress also ordered the FCC to reinstate prior policy and to lift the suspensions of all proceedings that had been held pending the conclusion of the Reexamination proceeding. See id. In compliance with this legislation, the Commission reactivated the case and reaffirmed its earlier order upholding the Board's decision to grant Rainbow's application. 3 F.C.C. Red. 866 (1988). Thus, the appellants' earlier appeals were reinstated.
II. ANALYSIS
A. Section 307(b)
12
Winter challenges the finding that it was not entitled to a dispositive preference under section 307(b) of the Communications Act. Orlando currently has five licensed television stations and Winter Park has none, although all five Orlando stations are received in Winter Park. The parties do not dispute that Winter Park is a city separate and distinct from Orlando. Consequently, Winter argues, the community of Winter Park has a greater need for local broadcast service than does Orlando, and FCC and court precedent require the Commission to accord Winter a dispositive 307(b) preference over the other applicants. We disagree.
13
In refusing to grant Winter a section 307(b) preference, the Board relied on the FCC policy of defining "community" more broadly in television cases than in radio cases. When a television station is sought:
14
"In cases involving mutually exclusive applicants from a principal city and a contiguous suburb, it has been held that where both applicants propose to serve substantially the same areas and populations the term 'communities,' as used in [section 307(b) ] of the Communications Act, is not limited in meaning to 'municipalities' but may include metropolitan areas."
15
Metro, 99 F.C.C.2d at 697 (quoting St. Louis Telecast, Inc., 22 F.C.C. 625, 713 (1957)); accord Cleveland Television Corp., 91 F.C.C.2d 1129, 1136 (Rev.Bd.1982). In such situations, the city and the suburb comprise a single community, and neither receives a preference over the other under section 307(b).
16
The Board's decision to deny Winter a section 307(b) preference was fully consistent with this urbanized area policy. All three applicants proposed to place a Grade B signal over the Orlando metropolitan area, including all of Winter Park. Thus, the Board found that there was no reason to award Winter a section 307(b) preference, because all applicants would be serving the same region. See 99 F.C.C.2d at 698.
17
Winter's claim that the Commission has no such urbanized area policy is without merit. The Commission acknowledges that it has applied this policy somewhat erratically in radio cases, see, e.g., Debra D. Carrigan, 100 F.C.C.2d 721, 725, reconsid. denied, 101 F.C.C.2d 218 (Rev.Bd.1985), rev. denied, 104 F.C.C.2d 826 (1986); however, in television cases, there is no doubt that the FCC consistently has refused to grant a suburban community a section 307(b) preference over a central city when all applicants propose area-wide service.4 See, e.g., Cleveland, 91 F.C.C.2d at 1136; Buena Vista, 94 F.C.C.2d 625; Knoxville Broadcasting Corp., 59 Rad.Reg.2d (P & F) 1617, 1622-23 (Rev.Bd.1986); Charles Vanda, 8 Rad.Reg.2d (P & F) 427, 433-34 (Rev.Bd.1966); St. Louis Telecast, 22 F.C.C. at 627-30.
18
Moreover, this court has previously found that it is permissible for the Commission to define "community" differently in the radio and television contexts so as to avoid a section 307(b) analysis when wide-area television coverage is proposed. See New Radio Corp. v. FCC, 804 F.2d 756, 760 (D.C.Cir.1986). The FCC has broad discretion under section 307(b) to determine the public interest, see Loyola Univ. v. FCC, 670 F.2d 1222, 1226 (D.C.Cir.1982), and nothing in the Communications Act prevents the FCC from defining the term "community" differently in different contexts, or from adopting an interpretation that strays considerably from political boundaries, see, e.g., National Ass'n of Broadcasters v. FCC, 740 F.2d 1190, 1198 (D.C.Cir.1984) (upholding FCC approval of cable TV licenses on a nationwide basis and stating that "the constituency to be served is people, not municipalities").
19
Contrary to Winter's contention, the FCC's refusal to grant a section 307(b) preference to a smaller suburban community over a central city has little to do with the relative sizes of the competing communities or with the type of television station--VHF or UHF--being sought. Rather, the Commission's policy in the distribution of television licenses is based on the characteristics of that medium:
20
Television stations typically serve much larger areas than radio stations, involve considerably greater capital investments, and require larger audiences to attract more advertising revenues. Beyond these differences, the number of television channels available is much more limited and, consequently, the television service area for Section 307(b) purposes "should be defined in terms of coverage and not in terms of artificial political boundaries." Evening Star Broadcasting Co., 27 FCC2d 316, 321 n. 4, 20 RR 2d 1311, 1321 n. 3a (1971), aff'd sub nom. Stone v. FCC, 466 F.2d 316 (D.C.Cir.1972).
21
Cleveland, 91 F.C.C.2d at 1137, quoted in Metro, 99 F.C.C.2d at 698. Moreover, the Commission has often invoked its urbanized area policy in cases involving UHF licenses. See e.g., Cleveland, 91 F.C.C.2d 1129; Washington's Christian Television Outreach, Inc., 99 F.C.C.2d 395, 408-10 (Rev.Bd.1984); Adell Broadcasting Corp., 99 F.C.C.2d 477, 508-10 (Rev.Bd.1984).
22
In the present case, the Review Board found that "the economic need of a television station to attract sizeable advertising revenues to cover the significant costs involved in its ongoing operation creates a strong presumption--unrebutted in this record--that each applicant will serve the entire Orlando metropolitan area." 99 F.C.C.2d at 698. The Commission's refusal to award Winter a section 307(b) preference was thus fully consistent with its existing policy regarding award of television licenses to competing applicants in the same metropolitan area.
B. Enhancement for Minority Ownership
23
Metro, Winter, and the Department of Justice as amicus curiae argue that the Commission's use of a qualitative enhancement for minority ownership violates the equal protection clause of the Fifth Amendment.5 Although minority ownership is only one of several factors considered by the FCC in awarding broadcast licenses, it may tip the balance in some cases. The issue is before us in this case because the Commission found on remand that Rainbow's enhancement for minority ownership was probably dispositive. See 2 F.C.C. Rcd. at 1475.
24
The issue regarding the legality of the FCC's use of a qualitative enhancement for minority ownership is easily resolved because this case is controlled by our decision in West Michigan, 735 F.2d 601. In considering exactly the same policy at issue here, the court in West Michigan ruled that "the FCC's plan easily passes constitutional muster," id. at 613, for at least two reasons:
25
In our analysis two factors stand out as particularly important to our conviction that there is no constitutional infirmity in the FCC's behavior. First, the Commission's award of minority enhancements is not a grant of any given number of permits to minorities or a denial to qualified nonminorities of the ability freely to compete for permits; it is instead a consideration of minority status as but one factor in a competitive multi-factor selection system that is designed to obtain a diverse mix of broadcasters. Second, the Commission's action in this case came on the heels of highly relevant congressional action that showed clear recognition of the extreme underrepresentation of minorities and their perspectives in the broadcast mass media. Congress found that this situation was a part of "the effects of past inequities stemming from racial and ethnic discrimination." H.R.Conf.Rep. No. 97-765, 97th Cong., 2d Sess. 43 (1982), U.S.Code Cong. & Admin.News 1982, p. 2287. Congress must be understood to have viewed the sort of enhancement used here as a valid remedial measure. In giving special weight to these factors we in no way imply that either would be essential to the constitutionality of a government affirmative action program, but their presence places the program's constitutionality beyond question.
Id. at 613-14 (emphasis in original).6
26
Since the decision in West Michigan, the Supreme Court has reviewed several challenges to race and gender preferences in employment.7 However, none of the Court's recent cases has undermined the holding in West Michigan. Indeed, even the Justice Department has conceded that West Michigan controls the disposition of this case.
27
The Supreme Court's recent decision in City of Richmond v. J.A. Croson Co., --- U.S. ----, 109 S.Ct. 706, 102 L.Ed.2d 854 (1989), does not alter this conclusion. In Richmond, the Court found that the City of Richmond had violated the equal protection clause by requiring prime contractors for the city to subcontract at least 30% of the dollar amount of their construction contracts to one or more minority business enterprises. A review of the Court's opinions, however, makes clear that Richmond does not significantly alter the constitutional framework underlying this court's decision in West Michigan.
28
The West Michigan court, in upholding the FCC's use of a qualitative enhancement for minority ownership, relied primarily on the Supreme Court's earlier decisions in Fullilove v. Klutznick, 448 U.S. 448, 100 S.Ct. 2758, 65 L.Ed.2d 902 (1980), and Regents of the University of California v. Bakke, 438 U.S. 265, 98 S.Ct. 2733, 57 L.Ed.2d 750 (1978). See West Michigan, 735 F.2d at 613. Neither of these decisions was repudiated by the Court in Richmond. A majority of the Court--the three justices who joined part II of Justice O'Connor's opinion for the Court, and the three dissenters--continues to regard Fullilove, in which the Court upheld a congressional program creating a 10% minority set-aside for federal construction contracts, as good law. See Richmond, --- U.S. at ---- - ----, 109 S.Ct. at 717-20 (plurality opinion); id. at ---- - ----, 109 S.Ct. at 750-52 (Marshall, J., dissenting); see also id. at ---- - ----, 109 S.Ct. at 735-38 (Scalia, J., concurring in the judgment) (declining to revisit Fullilove ). Indeed, Justice O'Connor relied heavily on the reasoning of Fullilove and was careful to point out why the facts of Richmond compelled a different result. See --- U.S. at ---- ----, ---- ----, 109 S.Ct. at 717-20, 728-29. Similarly, none of the opinions in Richmond expresses any disagreement with Bakke, in which Justice Powell found racial diversity to be a constitutionally permissible goal, independent of any attempt to remedy past discrimination. See Bakke, 438 U.S. at 311-15, 98 S.Ct. at 2759-61 (plurality opinion). Accordingly, the constitutional foundation for West Michigan remains intact.8
29
Moreover, the Supreme Court in Richmond stressed two crucial differences between the set-aside program upheld in Fullilove and the plan struck down in Richmond, and in both respects the FCC's policy is more similar to the Fullilove program found constitutional than to the Richmond plan.
30
First, the Court emphasized that the Richmond plan involved "an unyielding racial quota," --- U.S. at ----, 109 S.Ct. at 724, in contrast to "the flexible nature of the 10% set-aside" upheld in Fullilove, id. at ----, 109 S.Ct. at 718. The FCC's policy, however, is even more flexible than the Fullilove set-aside plan: it does not involve any quotas or fixed targets whatsoever, and minority ownership is simply one factor among several that the Commission takes into account in the award of broadcast licenses. In fact, the Commission would not even have considered minority ownership if it had found that the City of Winter Park was entitled to a dispositive preference over the City of Orlando under section 307(b).
31
Second, the Richmond Court made a distinction between programs enacted by Congress and those adopted by states or local governments. The Court observed that the Richmond plan was adopted by a city council, which had no specific constitutional mandate to enforce the Fourteenth Amendment; rather "[s]ection 1 of the Fourteenth Amendment is an explicit constraint on state power." --- U.S. at ----, 109 S.Ct. at 719 (emphasis in original). The plan upheld in Fullilove, by contrast, was passed by Congress, which has "unique remedial powers ... under Sec. 5 of the Fourteenth Amendment." Richmond, --- U.S. at ----, 109 S.Ct. at 718. In reviewing a congressional program, the Court emphasized,
32
"we deal ... not with the limited remedial powers of a federal court, for example, but with the broad remedial powers of Congress. It is fundamental that in no organ of government, state or federal, does there repose a more comprehensive remedial power than in the Congress, expressly charged by the Constitution with competence and authority to enforce equal protection guarantees." [Fullilove,] 448 U.S., at 483, 100 S.Ct. at 2777 (plurality opinion) (emphasis added).
33
Richmond, --- U.S. at ----, 109 S.Ct. at 718.
34
Like the set-aside plan in Fullilove, the FCC's minority preference policy has Congress' express approval. Congress has interceded at least twice to endorse the FCC's policy of enhancements for minority ownership in the award of broadcast licenses. See Pub.L. No. 97-259, Sec. 115, 96 Stat. 1087, 1094-95, codified at 47 U.S.C. Sec. 309(i)(3)(A), (C)(ii) (1982) (mandating use of minority preferences in lottery assignments); Pub.L. No. 100-204, 101 Stat. at 1331 (continuing resolution). "Any doubt concerning the constitutionality of the FCC's consideration of minority status was ended by Congress' approval of the Commission's goals and means." West Michigan, 735 F.2d at 615.
35
The FCC has indicated that it intends to adhere to its policy and we have no authority to overturn the agency's judgment on this point. West Michigan disposed of the constitutional challenges to the use of enhancements for minority ownership, and we are bound to follow this law of the circuit. See Brewster v. Commissioner, 607 F.2d 1369, 1373 (D.C.Cir.), cert. denied, 444 U.S. 991, 100 S.Ct. 522, 62 L.Ed.2d 420 (1979).
C. Other Issues
36
Aside from the section 307(b) and constitutional issues, which were the main arguments on which the parties focused in oral argument and in the briefs, Metro also raised a number of other arguments that we find to be moot or to lack merit.
37
First, Metro argues that the Commission erred in its assessment of Metro's and Rainbow's comparative quantitative integration of ownership into management. However, the Commission in fact agreed with Metro that the ALJ gave Metro too little credit for one of its partners, and the Commission rejected the ALJ's finding that Rainbow's quantitative advantage over Metro was probably decisive. See 2 F.C.C. Rcd. at 1475. Rather, the Commission found that neither party had a clear quantitative advantage over the other. See id. Although the Commission did not go as far as Metro would like and thus did not find that Metro had a quantitative advantage over Rainbow, the Commission's determination is entitled to considerable deference, see Office of Comm'n of the United Church of Christ v. FCC, 707 F.2d 1413, 1424-25 (D.C.Cir.1983), and we find nothing in the record to suggest that it should be overturned.
38
Metro also contends that the 1987 continuing resolution, which directed the FCC to resolve the present case within sixty days in a manner consistent with the Commission's existing policies, was an unconstitutional bill of attainder. However, "[t]he proscription against bills of attainder reaches only statutes that inflict punishment on the specified individual or group." Selective Serv. v. Minnesota Pub. Interest Research Group, 468 U.S. 841, 851, 104 S.Ct. 3348, 3354, 82 L.Ed.2d 632 (1984). Metro has made no argument that Congress' action imposed punishment on Metro. Although part of the same continuing resolution aimed at one individual, Robert Murdoch, was found unconstitutional in News America Publishing, Inc. v. FCC, 844 F.2d 800 (D.C.Cir.1988), the court in that case found that Congress had denied Murdoch a waiver that was available to all other applicants. In the present case, by contrast, Congress simply ordered the FCC to adhere to established substantive policies in resolving broadcast license disputes; Congress did not purport to instruct the agency how to decide any particular case on the merits. Congress neither singled out Metro nor directed that Metro be punished, and the continuing resolution was therefore not a bill of attainder as applied to Metro.9III. CONCLUSION
39
We find that the Commission's refusal to accord Winter a dispositive preference under section 307(b) was consistent with its previous interpretations of that section. We also find that our prior decision in West Michigan controls the disposition of the case with respect to the FCC's use of a qualitative enhancement for minority ownership. Accordingly, the petitions for review are denied.
40
So ordered.
41
STEPHEN F. WILLIAMS, Circuit Judge, concurring in part and dissenting in part:
42
I am in full agreement with the majority's treatment of Winter Park's Sec. 307(b) claim and of the issues addressed in part II.C. of the opinion. I dissent from the majority's constitutional analysis. The critical factor inducing the Commission to award the license to Rainbow was that its 90 percent credit for Hispanic ownership outweighed Metro's 19.8 percent credit for black ownership. Although in West Michigan Broadcasting Co. v. FCC, 735 F.2d 601 (D.C.Cir.1984), our circuit found it constitutional for the Commission to make race pivotal in the allocation of a radio channel, I believe that case has been largely undermined by the Supreme Court's more recent decisions in Wygant v. Jackson Board of Education, 476 U.S. 267, 106 S.Ct. 1842, 90 L.Ed.2d 260 (1986), and City of Richmond v. J.A. Croson Co., --- U.S. ----, 109 S.Ct. 706, 102 L.Ed.2d 854 (1989).
43
The Commission and intervenors on its side assert two possible constitutional justifications for the FCC's minority preference policy. First, the FCC claims that its policy fosters diversity in broadcast programming, a "non-remedial" purpose. See FCC Brief at 29-31. I do not believe the justification can survive the Croson Court's analysis, particularly its indictment of racial stereotyping. Second, Rainbow claims that the FCC's policy is also designed as a remedy for the effects of "historical underrepresentation of minorities in broadcasting," independently of any link to broadcasting diversity. See Rainbow Brief at 22 and generally at 21-26.1 As the Commission itself never articulated this remedial theory, the theory cannot sustain the decision here unless Congress mandated Commission use of racial preferences even in the event of the collapse of the Commission's own justification. See Continuing Resolution of December 22, 1987, Pub.L. No. 100-202, 101 Stat. 1329; Departments of Commerce, Justice and State, the Judiciary, and Related Agencies Appropriations Act, 1989, Pub.L. No. 100-459, 102 Stat. 2186 (1988). Particularly in light of the doubts created by Wygant and Croson as to whether this alternative theory could shore up the constitutionality of the Commission's policy, I believe the case should be remanded to the Commission for it to interpret Congress's directions.
I. THE PROGRAM DIVERSITY PURPOSE
44
The word "diversity" comprises a multitude of goals and methods. The Commission has adopted, and the Supreme Court approved, "cross-ownership" rules intended by the Commission to deconcentrate ownership and thereby to foster diversity of viewpoints. FCC v. National Citizens Committee for Broadcasting, 436 U.S. 775, 98 S.Ct. 2096, 56 L.Ed.2d 697 (1978). But despite the Commission's using the word "diversity" to label the goal of its racial preferences, the approaches have almost nothing in common. Deconcentrating ownership bears no resemblance to allocating licenses on the basis of the applicants' race, for the purpose of generating programs "targeted" at specific ethnic groups.
45
The FCC notes in its brief that "the purpose of the [minority preference] policy has been clearly explained by the Commission and Congress as being to enhance program diversity by increasing ownership of stations by significant groups that are substantially underrepresented in station ownership." FCC Brief at 47 n. 47. If the Commission's purpose were ethnically proportional representation of programmers for its own sake, its action would be clearly unconstitutional in the absence of a remedial justification. As Justice Powell said in Bakke, "[P]referring members of any one group for no reason other than race or ethnic origin is discrimination for its own sake. This the Constitution forbids." Regents of the University of California v. Bakke, 438 U.S. 265, 307, 98 S.Ct. 2733, 2757, 57 L.Ed.2d 750 (1978); see also Loving v. Virginia, 388 U.S. 1, 11, 87 S.Ct. 1817, 1823, 18 L.Ed.2d 1010 (1967) ("this Court has consistently repudiated '[d]istinctions between citizens solely because of their ancestry' as being 'odious to a free people whose institutions are founded upon the doctrine of equality.' ") (quoting Hirabayashi v. United States, 320 U.S. 81, 100, 63 S.Ct. 1375, 1385, 87 L.Ed. 1774 (1943)).
46
At several points the Commission's arguments suggest that the stated program diversity goal has in fact dissolved into a simple quest for racial or ethnic proportionality in license ownership. The Commission has never developed any data suggesting that the listening or viewing tastes of any ethnic group are either distinctive or undersupplied. Indeed, responding to the argument that its present scheme is of unlimited duration (because there is no measureable goal whose attainment would call a halt), its brief simply referred the reader to data on minority underrepresentation in license ownership. See FCC Brief at 47 n. 47, referring to id. at 30 n. 33. Nonetheless, I take the Commission at its word--or better--and examine the program-diversity rationale on the premise that it is genuine.
47
Under the view adopted by a majority of the Supreme Court for the first time in Croson, race-based decision criteria must withstanding "strict scrutiny" to survive an equal protection attack. See Croson, --- U.S. at ----, 109 S.Ct. at 721 (Part III-A)2; id. at ----, 109 S.Ct. at 735 (Scalia, J., concurring); see also id. at ----, 109 S.Ct. at 752 (Marshall, J., dissenting) (noting it as novel aspect of majority decision). More specifically, the government's goal must be a "compelling" one and the means selected must be "narrowly tailored" to fulfillment of that goal.
48
In asserting the compelling character of the goal of program diversity, the Commission seeks to ride on Justice Powell's endorsement of a "diversity" rationale in the context of educational admissions policy. See Bakke, 438 U.S. at 311-12, 98 S.Ct. at 2759-60. But the diversity purportedly sought by the Commission is altogether different from what Justice Powell would have sanctioned. Ethnic diversity in the classroom enables those present to see individual members of ethnic groups as they are. Far from depending on some link between race and conduct, it is a potent device against ethnic stereotyping. In his dissent in Wygant v. Jackson Board of Education, 476 U.S. 267, 106 S.Ct. 1842, 90 L.Ed.2d 260 (1986), Justice Stevens made just this point--that the "inclusion of minority teachers in the educational process inevitably tends to dispel [the] illusion" that skin color is a proper basis for inferring character or conduct. Id. at 316, 106 S.Ct. at 1869 (emphasis added).
49
Observers of programming from a minority-owned station, of course, cannot see the owners and thereby learn the irrelevance of race to conduct. Indeed, the Commission believes that viewers who could do so would learn what it apparently believes already--that skin color is a sound basis for predicting behavior. For the Commission's theory to make sense, in fact, skin color or ethnicity must be an excellent clue not only to what owners want to provide but also to what viewers and listeners want to receive. Its race preference plan is based at the core on precisely the racial stereotyping that the Croson majority identified as the central evil in the use of race-based decision criteria. See --- U.S. at ----, 109 S.Ct. at 721 (Part III-A); id. at ---- - ----, 109 S.Ct. at 730-34 (Stevens, J., concurring); id. at ----, ----, 109 S.Ct. at 735, 739 (Scalia, J., concurring).
50
Sustaining the program diversity theory would require the court to have some basis for believing that minority ownership would lead to "minority programming" in some sense that is both intelligible and permissible, and, second, that broadcast offerings are not currently "diverse." There is no basis in the record for either. No party here has offered a definition of minority programming that is empirically verifiable and can serve as a goal that government may constitutionally pursue. Thus it is not surprising that the data do not support any claim that the Commission's racial decision criteria are even reasonably (much less "narrowly") tailored to fulfill any constitutional goal. Moreover, the only data to which our attention has been called, taken at face value and assuming arguendo that they are meaningful in terms other than pure racial stereotyping, suggest that the goal posited by the Commission has been achieved quite independently of its racial decision criteria.
51
As Judge Silberman has shown in Shurberg Broadcasting of Hartford, Inc. v. FCC,, 876 F.2d 902 (D.C.Cir. 1989), Congress made no findings which support the theory of a nexus between race and diverse programming when it adopted a lottery system for allocating broadcast licenses. See Shurberg, Silberman op. at 923 y ("Nowhere in the House report [H.R.Rep. No. 765, 97th Cong., 2d Sess. (1982) U.S.Code Cong. & Admin.News 1982 p. 2237]3 is there evidence presented of a nexus between program diversity and minority ownership, nor is there reference to evidence upon which the committee drew."). Nor was this evidentiary void filled by the Continuing Resolution in 1987. See Pub.L. No. 100-202, 101 Stat. at 1329-31; Shurberg, Silberman op. at 926 (S.Rep. No. 182, 100th Cong., 1st Sess. 76 (1987), added only an assertion that "[d]iversity of ownership results in diversity of programming and improved service to minority and women audiences.").
52
Several parties in this case urge that a Congressional Research Service Report, Minority Broadcast Station Ownership and Broadcast Programming: Is There A Nexus? (June 29, 1988), proves a link between minority ownership and diverse programming. See FCC Brief at 46-47; Rainbow Brief at 24. Examination of the CRS Report is valuable not so much for what it proves--which as I will try to show is very little--as for what it suggests about the inevitable collapse of any evidence purporting to link racial criteria for station allocation with a goal of program diversity.
53
In preparing the study, the Service examined data from nearly 9000 responses to an FCC survey of about 11,000 American radio and television stations. See CRS Report at 2. The survey first asked station owners what percentage of the ownership interest in their station was held by women or members of specific minority groups.4 It then sought data on programming conduct. Both radio and TV station owners were asked whether their programming was directed to or provided special services for any of nine listed groups, including specific minorities, women, children and senior citizens. Respondents were asked to state whether the targeting or format was for 1-19 hours per week or for more than 20 hours per week.
54
The CRS found some correlation between minority ownership and "audience-targeted" programming. Whereas only 20 percent of stations without any black ownership responded that they engage in "black programming," 65 percent of stations with black ownership said that they did so. Id. at 13. For Hispanic ownership and "Hispanic programming," the corresponding figures are 10 percent and 59 percent. Id. at 13, 15. Without employing any of the conventional paraphernalia of modern statistics, the CRS hesitantly inferred a causal connection:
55
[T]here is a strong indication that minority and women station ownership results in a greater degree of minority programming [than does nonminority ownership]. Therefore, an argument can be made that FCC policies that enhanced minority and women station ownership may have resulted in more minority and other audience targeted programming. To the degree that increasing minority programming across audience markets is considered adding to programming diversity, then, based on the FCC survey data, an argument can be made that the FCC preference policies contributed, in turn, to programming diversity.
56
Id. at cover page.
57
First I will note a rather plain methodological flaw in the survey and then turn to its basic conceptual defect. The designers of the survey made no effort to adjust for possible differences in the racial composition of the various station owners' potential audiences. This makes it impossible to examine the role of market demand as a force behind programming decisions. "Hispanic-targeting"5 is obviously more likely to be profitable in Miami than in Minneapolis. Thus, if specific minorities are more likely to own stations in areas where they are numerous (as seems likely), the difference in "targeting" that the Report hesitantly attributes to the owners' racial characteristics may be due simply to their rational responses to demand. The Report itself acknowledged that it "would be difficult to determine to what degree station programming strategies are market driven rather than the results of minority ownership interests." CRS Report at 3.
58
Far more critical than this methodological flaw, however, is the survey's failure to define "minority-targeted programming." As the survey omitted that vital step, it and the Report prove only that black owners are more likely to say that they target black audiences, Hispanic owners that they target Hispanic audiences, and so on.
59
One can easily understand why the Commission refrained from defining black-targeted or other "minority-targeted" programming. The entire exercise would almost necessarily have constituted the crudest type of racial stereotyping. I say "almost" advisedly. It is conceivable that survey data might support the notion that blacks (say) had a greater taste for some specific programming feature. If that were true as an empirical matter, it would not be racist to say so. But if it were, and if it is permissible for the Commission to pursue program diversity by means other than general dispersion of ownership, it would simply expose the availability of a non-race-specific solution for the Commission: it could ascertain whether that sort of programming was underrepresented in relation to demand and take such steps as might be constitutionally available to stimulate its supply. If the answer is that there are no constitutionally permissible steps that it might take, then it is hard to see why the Commission has greater authority to stimulate the supply by its present means--which are not only roundabout but race-based.
60
The Commission avoided obvious racial stereotyping in its survey design by the blunt device of refusing to define the various types of "minority" programming at issue. The omission renders its data meaningless. It also tends to undermine any claim by the Commission that its goal was "compelling": no one can seriously argue that there is a compelling governmental interest in increasing the proportion of station owners who say they engage in something they call minority programming.
61
The Commission's goal also appears indeterminate, so that neither the Commission nor any observer will ever be able to discern that it has been attained. But all members of the Court appear to agree that a racial preference cannot be considered a "narrowly tailored" means if it can never reach its stated end. See, e.g., United States v. Paradise, 480 U.S. 149, 171, 107 S.Ct. 1053, 1067, 94 L.Ed.2d 203 (1987) (Brennan, J., for himself and Justices Marshall, Blackmun and Powell) (among factors determining whether race-conscious remedies are appropriate are "the flexibility and duration of the relief"). In Croson four members of the Court severely criticized theories that "could be used to 'justify' race-based decisionmaking essentially limitless in scope and duration." --- U.S. at ----, 109 S.Ct. at 723 (Part III-A). They rejected outright remedies "that are ageless in their reach into the past, and timeless in their ability to affect the future." Id. (quoting Wygant, 476 U.S. at 276, 106 S.Ct. at 1848 (plurality op.)). Although the other two concurring Justices did not join that portion of the Court's opinion, their opinions show no greater tolerance of racial preferences that have no clearly specified goal whose attainment will bring the preference to an end. See --- U.S. at ----, 109 S.Ct. at 730 (Stevens, J., concurring) ("When [government] creates a special preference, or a special disability, for a class of persons, it should identify the characteristic that justifies the special treatment. When the classification is defined in racial terms, I believe that such particular identification is imperative.") (quoting Fullilove, 448 U.S. at 552-54, 100 S.Ct. at 2813-14); --- U.S. at ----, 109 S.Ct. at 738 (Scalia, J., concurring) ("[T]he remedial power extends no further than the scope of the continuing constitutional violation.... And it is implicit in our cases that after the [violative] school system has been completely disestablished, the States may no longer assign students by race.").
62
The stated goal here--some sort of optimal or proportional relation of programming to ethnic taste--is undefined and seemingly not definable except in racial terms. Plainly there can be no assurance of an end to the racial preference if there is no way--except the Commission's conclusory say-so--of ascertaining when the goal is reached.
63
The Commission gives some clue as to how in fact it would measure the attainment of its goals. Its response in this very case to the argument that the minority preference was "open-ended as to duration" was to point to the figures comparing the percent of minorities in the population with the percent of stations owned and controlled by minorities. See FCC Brief at 47 n. 47, referring to id. at 30 n. 33. Thus the Commission apparently intends to stop only when proportionality in ownership is attained. Whatever the Commission may think it is doing, its stated criteria indicate that its supposedly nonremedial program-diversity goal is only a stalking horse for making license ownership replicate the racial proportions of the population at large.
64
The Commission might escape the challenge of defining its programming goal by positing the existence of some ineffable attribute of programming by minorities, arising out of such elements as may be common to the experience of the specific minority group. To the extent that such an attribute exists, one could say that, by definition, programming by minority-owned stations will reflect the ineffable characteristic. There would be no empirical problem.
65
This response would prove too much. If government may simply assume some inherently non-measurable race-conduct link and pursue diversity of conduct by allocating government benefits on a basis of racial proportions, then obviously there is no constitutional obstacle to race-based decision criteria. The Commission would be free to orchestrate an ethnically defined array of radio and TV programs, each designed to match "black tastes," "white tastes," "Hispanic tastes" or "Asian-American tastes"--or, indeed, as its ethnic analysts advanced in sophistication, "Jewish tastes," "WASP tastes" or "Italian tastes." Neither Croson nor any of the Court's decisions in the field can stand for this.
66
Thus the CRS study not only fails to supply the Commission's factual premises but suggests that it is asking questions that are unanswerable without racial stereotyping.
67
For a reader willing to ignore these flaws, however, the Report leads to the conclusion that the Commission has already achieved its purported goal. For purposes of testing the relation between "minority-targeted" programming and minority populations, the Commission considered data from ten cities grouped into two categories, one with five large Standard Metropolitan Statistical Areas ("SMSA") and the other with five smaller cities. See id. at 349 & n. 1. The study's data show that nonminority-owned programmers produce minority-targeted formats in percentages higher than the percentages of the various minorities in the general population for every minority group in both types of cities. For the five large cities the data are as follows:
68
Similarly, in the five smaller cities, nonminority broadcasters also appear to "target" minority audiences in greater percentages than would be called for by their raw proportions of the population:
69
Percent of Population Percent of Nonminority Stations Broadcasting
to Target Minority
Black 9.8 24.2
Hispanic 3.4 26.4
Asian/Pac .44 27.2
Ind/Alask 1.4 26.4
70
Id. at 26, 73-76. If black-targeted programming as the term is used by the survey respondents has any meaning that is related to some permissible goal, the Commission should declare victory.
71
This court's 1984 decision in West Michigan, sustaining the Commission's racial diversity rationale, cannot survive Croson. There a majority of the Supreme Court for the first time insisted on "strict scrutiny" of racial preferences. See above at 349-350. Moreover, that opinion gave unprecedented weight to precisely the criteria under which the Commission's rationale is vulnerable and that West Michigan disregarded. First, while West Michigan makes no mention of the hazards of racial stereotyping, the prevailing opinions in Croson all express the justices' concern that in the absence of strict judicial review, the political branches' use of racial criteria may reflect and reinforce racial stigmatization. See above at 357-58. While West Michigan casually asserted that the "FCC comparative evaluation process generally conforms to Justice Powell's model," 735 F.2d at 615, the Croson Court's evident concern over stereotyping requires us to probe seriously the FCC's assumptions about race as a predictor of conduct--an empirical matter irrelevant to Justice Powell's diversity theory.
72
Second, the justices' statements of concern that racial preferences may drag on interminably, see above at 352, have no parallel in West Michigan--an omission that is hardly surprising as those statements appear to have no roots in prevailing opinions issued before West Michigan. (Justice Stevens's statement is taken from his dissent in Fullilove.) Indeed, West Michigan never so much as mentioned the requirement of "narrow tailoring."
73
I therefore believe that Croson fatally undermines West Michigan 's conclusory validation of the Commission's racial diversity rationale.
II. THE REMEDIAL PURPOSE
74
If the Commission's racial preference cannot withstand the equal protection challenge on the basis of its program diversity purpose, the next question is whether the intervenor 's remedial theory fills the gap. One difficulty, obviously, is the theory's possible constitutional infirmity. But the court need reach that issue only if the preference is otherwise a proper exercise of the Commission's authority. It can be such an exercise only if (a) the Commission has properly adopted a remedial program in the discharge of its general authority to advance the public interest in the allocation of licenses or (b) if Congress has mandated such a remedial program. The first possible basis is clearly absent here; the Commission has never sought to explain its racial preference as an attempt to remedy discrimination. The second basis is highly doubtful; Congress's instructions in the Continuing Resolution of December 22, 1987, Pub.L. No. 100-202, 101 Stat. 1329, 1329-31 (1987), and the Departments of Commerce, Justice and State, the Judiciary, and Related Agencies Appropriations Act, 1989, Pub.L. No. 100-459, 102 Stat. 2186, 2216-17 (1988), are at best ambiguous. The legislative histories do not support a broad reading of the language used by Congress, and in light of what are at least serious doubts about the constitutionality of any such remedial program on the present record, I believe the appropriations acts do not clearly mandate more than continuation of the Commission's preexisting program of racial preferences for purposes of program diversity.
A. The Commission's Stated Purpose
75
At no time has the Commission sought to explain or justify the racial preference now before us as a remedy for racial discrimination. Under well-established principles of administrative law, we cannot uphold a Commission action on the basis of reasoning that the Commission has not adopted. SEC v. Chenery Corp., 318 U.S. 80, 88, 63 S.Ct. 454, 459, 87 L.Ed. 626 (1943) ("If an order is valid only as a determination of policy or judgment which the agency alone is authorized to make and which it has not made, a judicial judgment cannot be made to do service for an administrative judgment.").
76
The background of the Commission's policy is no secret. In TV 9, Inc. v. FCC, 495 F.2d 929 (D.C.Cir.1973), this court overturned a Commission decision that had refused to award a license applicant credit for minority ownership. Noting that the Commission had rested its efforts to diffuse ownership on the belief that such diffusion would bring about diverse program content, the court declared that the goal of maximum diversification of ownership entailed "favorable consideration to an applicant who ... gives a local minority group media entrepreneurship." Id. at 937. The court appeared to make the credit contingent upon a showing that the minority ownership would be likely to enhance diversity of content:
77
We hold only that when minority ownership is likely to increase diversity of content, especially of opinion and viewpoint, merit should be awarded.
78
Id. at 938 (emphasis added) (citations omitted).
79
In Garrett v. FCC, 513 F.2d 1056 (D.C.Cir.1975), the court reviewed another Commission decision declining to award credit for minority ownership, where the applicant had offered no evidence either of dissatisfaction among minorities with existing programs or of any plan to cure it. Despite having appeared in TV 9 to make credit turn on specific circumstances indicating a likelihood of program diversity, the court now stated that "black ownership and participation together are themselves likely to bring about programming that is responsive to the needs of the black citizenry." Id. at 1063.
80
The Commission responded to these developments. See Statement of Policy on Minority Ownership of Broadcasting Facilities, 68 F.C.C.2d 979 (1978). In the Minority Ownership Report of its Minority Ownership Task Force, it stated:
81
Despite the fact that minorities constitute approximately 20 percent of the population, they control fewer than one percent of the 8500 commercial radio and television stations currently operating in this country.
82
Acute underrepresentation of minorities among the owners of broadcast properties is troublesome because it is the licensee who is ultimately responsible for identifying and serving the needs and interests of his or her audience. Unless minorities are encouraged to enter the mainstream of the commercial broadcasting business, a substantial proportion of our citizenry will remain underserved and the larger, non-minority audience will be deprived of the views of minorities.
83
Federal Communications Commission, Minority Ownership Taskforce Report, Minority Ownership in Broadcasting 1 (May 17, 1978) (emphasis in original).
84
The references to "underrepresentation" are not linked, of course, to any claim of discrimination. The Commission's rationale remained the one consistently articulated by this court--an extension of the idea that ownership diversity would entail program diversity.
85
The Commission has, indeed, explicitly abjured any remedial purpose. As it says in its brief here, "[T]he FCC's goal in implementing the preference policy ... has not been to remedy prior discrimination against minorities or to provide remedial benefits." FCC Brief at 30. Further, in its Brief on Rehearing En Banc at 18, Steele v. FCC, 806 F.2d 1126 (D.C.Cir.1986), it declared the absence of the sort of factual underpinnings best suited to support any such remedial purpose: "There has never been a finding, nor so far as we know even an allegation, that the FCC engaged in prior discrimination against racial minorities or women in its licensing process." Because of its lack of any remedial purpose, it has, of course, never sought to analyse whether past discrimination affords any basis for such a program.
86
If we assess the Commission's racial preference as an exercise of its mandate to pursue the public interest, and if I am correct in finding that Croson and Wygant have toppled West Michigan 's constitutional validation of the program diversity theory, then the Commission's lack of any effort to support racial preferences as a remedy for discrimination would normally require a remand to the Commission for such further consideration as it found appropriate. Such a remand would be inappropriate, however, if Congress had mandated a remedial program. I therefore turn to the relevant appropriations acts for 1988 and 1989.
B. The Appropriations Acts
87
In appropriating funds for fiscal year 1988, Congress provided:
88
That none of the funds appropriated by this Act shall be used to repeal, to retroactively apply changes in, or to continue a reexamination of, the policies of the Federal Communications Commission with respect to comparative licensing, distress sales and tax certificates granted under 26 U.S.C. 1071, to expand minority and women ownership of broadcasting licenses, including those established in Statement of Policy on Minority Ownership of Broadcast Facilities, 68 F.C.C.2d 979 and 69 F.C.C.2d 1591, as amended 52 R.R.2d [1301] (1982) and Mid-Florida Television Corp., F.C.C.2d 607 Rev.Bd. (1978), which were effective prior to September 12, 1986, other than to close MM Docket No. 86-484 with a reinstatement of prior policy and a lifting of suspension of any sales, licenses, applications, or proceedings, which were suspended pending the conclusion of the injury....
89
Pub.L. No. 100-202, 101 Stat. 1329-31 (1987). Congress renewed this spending prohibition in the relevant appropriations measure for fiscal year 1989. See Pub.L. No. 100-459, 102 Stat. 2186, 2216-17 (1988) (same language). Accordingly, the Commission proceeded to resolve the present licensing dispute by reference to the pre-existing policy. See Metro Broadcasting, Inc., 3 F.C.C. Rcd 866 (1988).
90
If Congress had enacted the racial preference here at issue into law, of course, that preference would be a part of the law governing the Commission's license allocation activities; the Commission would be bound to apply it, and we to uphold the application in the absence of constitutional defect. But that is not what Congress did. It ordered a kind of mental standstill, prohibiting the use of funds appropriated under the acts to "repeal, to retroactively apply changes in, or to continue a reexamination of, the [specified] policies," "other than to close" the docket in which the Commission was reexamining its various racial and gender preferences "with a reinstatement of prior policy." In this context "policy" is ambiguous. So far as comparative licensing is concerned, the laws do not state whether the permissible policy, i.e., the one which the Commission may spend the appropriated funds to reinstate, is the Commission's pre-existing pursuit of program diversity through racial preferences, or outright racial preferences for some other (unspecified) purpose. Thus they do not address what the Commission should do if it applies its prior policy (defined in the only terms that the Commission has ever articulated), and the policy as so defined and rationalized is found constitutionally defective.
91
In at least two respects the context of the appropriations acts militate against reading them as mandating the use of racial preferences even if the Commission's diversity-based ones are unconstitutional. First, it would seem anomalous for Congress to lock the Commission into a policy broader than it had ever before applied without specifically articulating the new policy and its bases. Second, as the restriction is limited in time to the period of the Commission's reliance on the appropriated funds, the Commission would be free to abandon the policy thereafter, a result that seems especially curious for a new policy.
92
The legislative history of the Continuing Resolution does not entirely clarify Congress's intent, but it contains no hint that Congress contemplated an enlarged reading of the FCC's "policy." The restriction was added to H.R. 2763 during Senate committee hearings, with the statement that the FCC's reexamination of the minority preference policies was "unwarranted." S.Rep. No. 182, 100th Cong., 1st Sess. 76 (1987). The Report went on to note that "Congress has expressed its support for such policies in the past and has found that promoting diversity of ownership of broadcast properties satisfies important public policy goals. Diversity of ownership results in diversity of programming and improved service to minority and women audiences." Id. The only other specific references to the minority preference policy that I uncovered in the legislative history were brief remarks by Senator Lautenberg during the Senate discussions of H.R. 2763. In supporting the amendment, which he had proposed, Senator Lautenberg echoed the Report's focus on program diversity:
93
Important goals of our communications policy should be the promotion of diverse viewpoints, and service to diverse audiences. To meet these goals, it is important that we promote diversity of ownership of broadcast licenses.... Diversity of ownership results in diversity of programming and improved service to minority and women audiences.
94
133 Cong.Rec. S14395 (daily ed. October 15, 1987) (statement of Sen. Lautenberg). Obviously, neither of these expressions refers to any remedial purpose.
95
Similarly, the legislative history of the 1989 appropriations restriction gives no reason to believe that Congress was imposing a remedial rationale on the agency. The spending prohibition in the relevant act for 1989 was introduced in the Senate committee report, S.Rep. No. 100-388, 100th Cong., 2d Sess. 78-79 (1988). The sole remarks concerning this addition were that "[t]he Committee has also continued language from previous appropriations acts with regard to VHF-UHF swaps and minority and women ownership of broadcasting licenses." Id. at 79. Senator Hollings was the only legislator who spoke on the minority ownership provision during either the House or Senate debates on the bill. He discussed the CRS Report, which had been recently issued, and said:
96
The report clearly demonstrates that minority ownership of broadcast stations does increase the diversity of viewpoints presented over the airwaves.
97
The FCC's rationale for questioning the constitutionality of the minority/female ownership policies is factually and legally invalid. I am a strong supporter of diversity in ownership and programming.... The language in this year's appropriations bill simply preserves long-standing policies of both the Congress and the FCC....
98
134 Cong.Rec. S10021 (daily ed. July 27, 1988) (statement of Sen. Hollings) (emphasis added). Thus the legislative history of the 1989 appropriation, like that for 1988, appears to evidence only a congressional wish to continue the policy of trying to enhance program diversity.
99
Serious doubts about the constitutionality of a remedial rationale for the Commission's racial preference rule also call for a narrow reading of the appropriations acts. Crowell v. Benson, 285 U.S. 22, 62, 52 S.Ct. 285, 296, 76 L.Ed. 598 (1932).7 It is true that in West Michigan this court relied on a remedial purpose to support its finding of the preference's constitutionality. See 735 F.2d at 614-16. But as the FCC 's purpose was exclusively to promote programming diversity, only that purpose was properly under review. The portion of West Michigan addressing remedial concerns is therefore dictum.
100
Even were West Michigan a holding on the remedial purpose, its reasoning appears largely undermined by Wygant and Croson. First, it accepted findings of past discrimination that are likely insufficient under present standards. Second, it completely neglected the question whether the "remedy" was "narrowly tailored," an issue now likely to be critical.
101
Discrimination. The West Michigan court noted that the allocation there under review "came on the heels" of Congress's passage of Sec. 115 of the Communications Amendments Act of 1982, Pub.L. No. 97-259, 96 Stat. 1087, 1094-95 (codified at 47 U.S.C. Sec. 309(i)(3)(A) and (C)(ii)), authorizing Commission use of lotteries for license allocation but subjecting such lotteries to special minority preference requirements. 735 F.2d at 613, 615-16. The court noted that Congress had based the preference requirements on findings of "underrepresentation" of minorities in the broadcast media and had characterized this underrepresentation as flowing from " 'the effects of past inequities stemming from racial and ethnic discrimination.' " Id. at 614 (quoting H.R.Conf.Rep. No. 97-765; 97th Cong., 2d Sess. 43 (1982), U.S.Code Cong. & Admin.News 1982, p. 2287). The court read the enactment of the lottery provisions under these circumstances "as giving congressional confirmation to the factual bases of [the] remedial nature [of the FCC's various minority preference policies]." 735 F.2d at 616.
102
I agree with Judge Silberman's conclusion in Shurberg that these "findings" are inadequately supported to show prior discrimination by the FCC or the broadcast industry. See Shurberg, Silberman op. 876 F.2d at 914 ("Neither Congress nor the FCC ever found any evidence to link minority 'underrepresentation' to discrimination by the FCC or to particular discriminatory practices in the broadcasting industry.") (citation omitted); see generally id. at 914-16. In the absence of findings of any discrimination by the agency or in the industry, the congressional statements can sustain the preference only if general societal discrimination suffices to support a race-based remedial program.
103
Three Supreme Court decisions are relevant to an assessment of such general discrimination: Fullilove v. Klutznick, 448 U.S. 448, 100 S.Ct. 2758, 65 L.Ed.2d 902 (1980), Wygant, and Croson. In Fullilove the Court upheld a 10% minority set-aside program established by Congress for federal grants to state and local governments for use in public works projects. Both Chief Justice Burger's plurality opinion and Justice Powell's concurrence stressed Congress's unique role in ensuring equal protection under the Fourteenth Amendment. See 448 U.S. at 472-78, 100 S.Ct. at 2771-75, id. at 503-06, 100 S.Ct. at 2787-89 (Powell, J., concurring). Both opinions, however, left obscure the extent to which Congress's special role left it free to mandate racial preferences solely on the basis of general societal discrimination. Justice Powell read the record as showing that Congress had made a particularized finding of discrimination by the governmental unit involved: "Congress reasonably concluded that private and governmental discrimination had contributed to the negligible percentage of public contracts awarded minority contractors." Id. at 503, 100 S.Ct. at 2787 (citation omitted). The plurality was less clear on whether the identified discrimination was specifically in the contracting business, or merely in society at large. The opinion declared that Congress "had before it ... evidence of a long history of marked disparity in the percentage of public contracts awarded to minority business enterprises. This disparity was considered to result not from any lack of capable and qualified minority businesses, but from the existence and maintenance of barriers to competitive access which had their roots in racial and ethnic discrimination...." Id. at 478, 100 S.Ct. at 2774.
104
In Wygant, where the Court invalidated a purely local racial preference, the plurality's holding and rationale appeared to reject generalized findings of discrimination as a basis for race-based remedial measures. In his plurality opinion, Justice Powell observed that the Court had never held that societal discrimination alone sufficed to justify a racial classification. "Rather, the Court has insisted upon some showing of prior discrimination by the governmental unit involved before allowing limited use of racial classifications in order to remedy such discrimination." Wygant, 476 U.S. at 274, 106 S.Ct. at 1847 (emphasis added). While the Court held that there need not be "findings" of prior unlawful discrimination, it did require that a "firm basis" exist for believing that the public entity had engaged in discrimination. Id. at 293, 106 S.Ct. at 1856 (O'Connor, J., concurring). Justice O'Connor suggested as an example of such a "basis" the evidence needed to support a prima facie Title VII pattern or practice claim. Id. at 292, 106 S.Ct. at 1856.
105
Wygant, of course, does not directly consider societal discrimination as a legitimate factual predicate for race-based policies adopted by Congress. And the ambiguity of Fullilove carries forward to Croson. Although the majority nowhere states that Congress has the right to base racially-conscious programs solely on evidence of societal discrimination, neither does it explicitly reject this proposition. See --- U.S. at ----, 109 S.Ct. at 719 (Part II) ("That Congress may identify and redress the effects of society-wide discrimination does not mean that, a fortiori, the States and their political subdivisions are free to decide that such remedies are appropriate.").
106
The Court's recent disposition of H.K. Porter Co. v. Metropolitan Dade County indicates that at least some aspects of Croson will apply to congressionally authorized racial preferences. The court of appeals had upheld a local racial preference program adopted under the authority of the Surface Transportation Assistance Act of 1978, Pub.L. No. 95-599, 92 Stat. 2689 (1978), and the Supreme Court remanded "for further consideration in light of" Croson. --- U.S. ----, 109 S.Ct. 1333, --- L.Ed.2d ---- (1989), vacating 825 F.2d 324 (11th Cir.1987); see also Croson, --- U.S. at ----, 109 S.Ct. at 740 (Marshall, J., dissenting) (commenting that the Croson majority opinion represented a "deliberate and giant step" away from Fullilove ).
107
The unresolved ambiguity of Fullilove and Croson leaves it impossible to reach a firm opinion as to the evidence of discrimination needed to sustain a congressional mandate of racial preferences. But I pause to note how little there is here. There is no finding by a court or anyone of discrimination in the allocation of broadcasting channels. Nor has any evidence been presented to this court that would amount to prima facie evidence of a discriminatory pattern or practice. See Wygant, 476 U.S. at 292-94, 106 S.Ct. at 185657 (O'Connor, J., concurring) (suggesting that such evidence would suffice). Apart from the conclusory references by congressional committees discussed above, there is simply the Commission's observation that only 2.1 percent of radio and TV stations are minority owned and controlled, as against a 23.5 percent minority share of the general population. FCC Brief at 30 n. 33.
108
Discrepancies between the ethnic proportions among persons receiving a government benefit and among the population at large cannot be evidence of discrimination where special qualifications are needed for receipt of the benefit. See, e.g., Croson, --- U.S. at ----, 109 S.Ct. at 725 ("[w]here special qualifications are necessary, the relevant statistical pool for purposes of demonstrating discriminatory exclusion must be the number of minorities qualified to undertake the particular task.") (citations omitted). Justice O'Connor went on to point out that there was no evidence of the number of minority business enterprises in the relevant market, and indeed noted evidence that black-owned businesses were not homogeneously distributed among industries. Id. As the FCC's "integration" requirements compel the synthesis of ownership and day-to-day management in the same hands, the relevant pool consists of potential owner-managers of radio and TV stations. The figures discussed by the FCC--including those in the CRS Report--nowhere reveal the number or proportion of minorities in this group. In the case at hand, the Rainbow principals are of Hispanic origin, yet we have no data on the relative eligibility and participation rates of this group. See Croson, --- U.S. at ----, 109 S.Ct. at 728 (highlighting complete absence of evidence of discrimination against Spanish-speaking and other non-black beneficiaries of Richmond's set-aside program, program's "random inclusion of racial groups that ... may never have suffered from discrimination in the construction industry," and its "gross overinclusiveness").
109
Nonetheless, because of the persisting uncertainty over the nature of the discrimination necessary for congressionally mandated remedial preferences, I turn to the issue of whether the preference is "narrowly tailored" or properly "fits" the evil to be cured.
110
Narrow tailoring. The Croson majority took two ameliorating features of the program upheld in Fullilove and made their absence critical to the rejection of the Richmond plan. First, in Fullilove three justices upholding the preference noted that before adopting the set-asides Congress had considered and attempted alternatives which were not based on racial criteria. See Fullilove, 448 U.S. at 463-67, 100 S.Ct. at 2767-69; id. at 511, 100 S.Ct. at 2791 (Powell, J., concurring). In Croson those justices of the majority whose constitutional views were most tolerant of racial preferences found the Richmond council's failure to consider such alternatives a critical defect. See --- U.S. at ----, 109 S.Ct. at 728 ("The principal opinion in Fullilove found that Congress had carefully examined and rejected race-neutral alternatives before enacting the MBE [Minority Business Enterprise] set-aside."). As the Commission adopted the racial preference on the basis of its and this court's program diversity theory, and as it is most unclear whether Congress has ever endorsed a remedial theory for the program (the point indeed at issue here), it can hardly be said that the program rests on anyone 's findings as to the inadequacy of non-race-based alternatives.
111
Second, the three justices of the Fullilove plurality had noted as "significant" that the congressional program at issue provided for waiver of the 10% minority participation requirement "to avoid dealing with an MBE who is attempting to exploit the remedial aspects of the program by charging an unreasonable price, i.e., a price not attributable to the present effects of past discrimination." Fullilove, 448 U.S. at 488, 100 S.Ct. at 728. In Croson, the majority opinion emphasized the absence of any such built-in limit. "Unlike the program upheld in Fullilove, the ... system focuses solely on the availability of MBEs; there is no inquiry into whether or not the particular MBE seeking a racial preference has suffered from the effects of past discrimination by the city or prime contractors."." Croson, --- U.S. at ----, 109 S.Ct. at 729. This reading of Fullilove--whereby the set-aside seemingly applies only to victims of prior discrimination by the agency or industry involved--further undercuts the Commission's claim that its policy is sufficiently narrow in scope.8 Indeed, it is hard to see how a program can be "narrowly tailored" as a remedy for societal discrimination if competitors have no opportunity to show that individual beneficiaries have suffered no impairment of their license-securing ability attributable to that discrimination.
112
Moreover, in Croson (for the first time) the Court made the point that where an agency is making decisions "on a case-by-case basis," it was hard "to see the need for a rigid numerical quota." --- U.S. at ----, 109 S.Ct. at 730. For such programs, the Court plainly believed, it was practical to ascertain whether discrimination had in fact impaired the proposed beneficiary's competitive position. Although the FCC's preference is not in form a "rigid numerical quota" (a point explored immediately below), the Court's analysis seems equally applicable. Where the government is proceeding on a case-by-case basis, there is no obvious need to employ a mechanical racial preference and forego inquiry into the beneficiaries' actual circumstances. No FCC preference for successful Hispanic entrepreneurs can remedy the years spent by other Hispanics picking lettuce as a result of racial discrimination. At least it cannot if we think of people as individuals.
113
In upholding the FCC's racial preference policy, West Michigan relied heavily on the FCC's treatment of race as merely one of many "factors." 735 F.2d at 613. I am unpersuaded that the multi-factored approach in this case--if that is what it really is--saves the minority preference scheme. As Judge Silberman explained in his opinion in Shurberg at 919, "[T]he constitutional distinction between a tolerable and intolerable burden on the innocent turns on the uniqueness and value of the opportunity lost." Here, as in Shurberg, Metro was denied a comparative hearing on the only new license currently being offered in the Orlando area. Thus, Rainbow's victory, in which the minority preference was dispositive, deprived the other competitors of their only chance for a new license for the foreseeable future.
114
Moreover, on the present facts the line between a simple quota and a multi-factored allocation is painfully thin. The Commission has made clear that it proposes to keep giving race weight until license ownership matches the racial composition of the population at large. See above at 352. That looks like a quota. The only refinement is that the Commission is working to fulfill it gradually--as it must, given the limited number of stations available to allocate each year. The Commission's candid briefing thus appears to remove a distinction that the West Michigan court found critical. See West Michigan, 735 F.2d at 613.
115
Even if one assumes, however, along with West Michigan, that there are adequate findings of discrimination, that the FCC's minority preference program is genuinely a multi-factored test rather than pursuit of a quota, and that the burden on nonminority applicants is sufficiently light to pass constitutional scrutiny, I believe that the plan is undermined by the two defects that Croson made critical--the absence of consideration of alternative non-racial solutions and the omission of a waiver provision that effectively confines the benefits to individuals who have suffered identifiable discrimination.
116
It is plain that the FCC has not offered a remedial rationale for its policy. Nor could it possibly be said that the appropriations acts clearly establish a remedial policy, in light of the textual ambiguity concerning the word "policy" in the appropriations acts, their legislative histories, and the strong possibility that even supported as a remedy the FCC's racial preference program would violate the equal protection clause. Whether we could uphold a Commission finding that the acts established such a policy, given the deference it enjoys in matters of law under Chevron U.S.A. v. NRDC, 467 U.S. 837, 842-45, 104 S.Ct. 2778, 2781-83, 81 L.Ed.2d 694 (1984), is not before us, in the absence of any FCC consideration of the point. See Phillips Petroleum Co. v. FERC, 792 F.2d 1165, 1172 (D.C.Cir.1986) (deference must be based on agency's exercise of its interpretive judgment).
CONCLUSION
117
Finding the program diversity theory unconstitutional because plainly based on impermissible racial stereotypes, and finding no adoption of any remedial justification by the Commission or Congress, I would remand to the Commission for further proceedings. The FCC's first task on remand would be to interpret the relevant appropriations act for 1989 to determine whether it mandates a remedial preference policy. If the FCC determines that it does not, it would be free to reassess the preference policy in light of the unconstitutionality of the program diversity rationale.
*
Sitting by designation pursuant to 28 U.S.C. Sec. 291(a)
1
The rule has since been repealed, see The Suburban Community Policy, 93 F.C.C.2d 436, 451-53 (1983), and parties may now apply for use of a channel only in the locality to which it has been assigned. Thus, the section 307(b) inquiry now takes place in the initial rulemaking proceeding to assign the channel to a community, before the channel is open for applications from interested parties
2
Section 307(b) requires the Commission "to provide a fair, efficient, and equitable distribution" of broadcast service among states and communities. This provision instructs the FCC to "creat[e] a system of local broadcasting stations, such that 'all communities of appreciable size [will] have at least one television station as an outlet for local self-expression.' " United States v. Southwestern Cable Co., 392 U.S. 157, 174, 88 S.Ct. 1994, 2003, 20 L.Ed.2d 1001 (1968) (quoting H.R.Rep. No. 1559, 87th Cong., 2d Sess. 3 (1962))
3
Neither Winter nor Metro has sought review of the determination on lack-of-candor
4
Winter notes that the Commission proposed to adopt its urbanized area policy in a rulemaking proceeding but has not done so. See The Commission's Policy, Pursuant to Section 307(b) of the Communications Act, of Granting Comparative Preferences Within Metropolitan Areas, 48 Fed.Reg. 19,428 (1983). Yet, neither has the Commission rejected the proposal; in fact, it has indicated that it will continue to apply the metropolitan area policy on a case-by-case basis until it takes further action in the rulemaking proceeding. See Debra D. Carrigan, 100 F.C.C.2d at 731 n. 19 (citing its authority under SEC v. Chenery Corp., 332 U.S. 194, 203, 67 S.Ct. 1575, 1580, 91 L.Ed. 1995 (1947), to proceed case-by-case rather than by rulemaking)
5
Metro also challenges the use of gender preferences. However, the Commission determined below that the outcome of the proceeding would not change even if no consideration were given to Rainbow's five percent female participation. See 3 F.C.C. Rcd. at 867 n. 1. Accordingly, we consider only the legality of the FCC's use of a qualitative enhancement for minority ownership
6
Unlike Congress, the FCC does not now base its policy of enhancement for minority ownership on a purpose to cure the effects of perceived racial discrimination. See Brief for FCC at 29-30. Rather, the FCC has indicated that its policy is designed to increase the participation of minority groups in the broadcast industry "in furtherance of the public interest goal of diversity of viewpoint--to enhance the public's exposure through programming on broadcast stations to the viewpoints of the significant, diverse groups that make up the nation." Id. at 30; see Regents of the Univ. of Calif. v. Bakke, 438 U.S. 265, 311-15, 98 S.Ct. 2733, 2759-61, 57 L.Ed.2d 750 (1978) (plurality opinion of Powell, J.); West Michigan, 735 F.2d at 614 (noting that "[t]he FCC policy would clearly be validated under Justice Powell's approach" in Bakke )
7
See generally Edwards, The Future of Affirmative Action In Employment, 44 WASH. & LEE L.REV. 763 (1987); Jones, The Genesis and Present Status of Affirmative Action in Employment: Economic, Legal, and Political Realities, 70 IOWA L.REV. 901 (1985); Note, Rethinking Weber: The Business Response to Affirmative Action, 102 HARV.L.REV. 658 (1989); Sullivan, The Supreme Court, 1985 Term--Comment: Sins of Discrimination: Last Term's Affirmative Action Cases, 100 HARV.L.REV. 78 (1986)
8
Most of the Supreme Court's other recent cases involving challenges to affirmative action have upheld the legality of these plans in the employment context. See, e.g., Johnson v. Transportation Agency, 480 U.S. 616, 107 S.Ct. 1442, 94 L.Ed.2d 615 (1987); United States v. Paradise, 480 U.S. 149, 107 S.Ct. 1053, 94 L.Ed.2d 203 (1987); Local 28 of Sheet Metal Workers' Int'l Ass'n v. EEOC, 478 U.S. 421, 106 S.Ct. 3019, 92 L.Ed.2d 344 (1986); Local No. 93, Int'l Ass'n of Firefighters v. City of Cleveland, 478 U.S. 501, 106 S.Ct. 3063, 92 L.Ed.2d 405 (1986). The only notable exception has been Wygant v. Jackson Board of Education, 476 U.S. 267, 106 S.Ct. 1842, 90 L.Ed.2d 260 (1986). Together, these cases surely do not undermine this court's decision in West Michigan. Furthermore, none of these cases calls into question either Fullilove or Bakke
9
The other issues raised by Metro are moot. Metro argues that it should have been awarded "substantial" rather than "moderate" credit for local residency, and that Rainbow should not have been given a substantial preference over Metro for broadcast experience. The Commission indicated, however, that neither of these issues affected the outcome of the proceeding. See FCC 85-558 (Oct. 18, 1985); 2 F.C.C.Rcd. at 1475. Metro's charges against Winter are also moot, as we have upheld the Commission's determination that Winter was not entitled to the station
1
The FCC's counsel asserts that the Commission has not adopted this latter, so-called "remedial" rationale for its minority preference policy. See FCC Brief at 30 ("The FCC's goal in implementing the preference policy, however, has not been to remedy prior discrimination against minorities or to provide remedial benefits.")
2
Justice O'Connor wrote a six-part opinion in Croson. A majority of the Court agreed to three of those parts--I, III-B and IV. All citations to these majority statements will be in the usual form, without parenthetical reference to authorship. Part II of Justice O'Connor's opinion was joined by Justices Rehnquist and White. Parts III-A and V were joined by Justices Rehnquist, White and Kennedy. All citations to these plurality portions of the opinion will include the relevant part number, but will not specify authorship
3
The report explains the House-Senate conference's approval of Sec. 115 of the Communications Amendments Act of 1982, Pub.L. No. 97-259, 96 Stat. 1087, 1094-95 (codified at 47 U.S.C. Sec. 309(i)(3)(A) and (C)(ii))
4
The minority groups were Black (not of Hispanic origin), Hispanic, American Indian or Alaskan Native, and Asian or Pacific Islander
5
I assume for the sake of argument that "Hispanic targeting" has an intelligible meaning. If it is a fancy phrase for Spanish-language programming, then indeed it would
6
"Nonminority" as used here and in the following table means not belonging to the specific minority "targeted."
Percent of Population Percent of Nonminority6
Stations Broadcasting to Target
Minority
6. "Nonminority" as used here and in the following table means not belonging
to the specific minority "targeted."
Black 17.6 22
Hispanic 14.9 20
Asian/Pac 3.3 5
Ind/Alask 1.7 3
CRS Report at 25, 6164.
7
The principle that statutes should be read so as to avoid constitutional questions where fairly possible appears to extend to situations like this one, in which the event casting doubt on a statute's constitutionality (here, the decision in Croson ) occurs after Congress enacted the law. See, for example, United States v. Thirty-Seven Photographs, 402 U.S. 363, 367-75, 91 S.Ct. 1400, 1403-08, 28 L.Ed.2d 822 (1971) (federal statute written in 1930 interpreted to incorporate 14-day time limit on commencement of forfeiture proceedings, and 60-day limit on their completion, both inferred from 1965 decision of Supreme Court)
8
It also sheds light on the question of whether after Croson Congress can find remedying general societal discrimination to be a compelling state interest under the Fourteenth Amendment. If the only permissible (narrowly tailored) remedies are those which extend solely to victims of past discrimination perpetrated by the governmental unit or industry at hand, then the only discrimination that even Congress may remedy is discrimination that can be shown to account for the specific beneficiary's plight
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925 F.2d 489
288 U.S.App.D.C. 258
Missouri Public Service Division of UtiliCorp United, Inc.v.Federal Energy Regulatory Commission, Williams Natural Gas Company
NOS. 89-1463, 89-1780
United States Court of Appeals,District of Columbia Circuit.
JAN 07, 1991
1
D.C.D.C.
2
DENIED IN PART AND REMANDED.
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834 F.Supp. 379 (1993)
DIVE N' SURF, INC., Gold's Gym Enterprises, Inc., & Others, Plaintiffs,
v.
Richard ANSELOWITZ d/b/a Promo Graphics, Inc., Robin Kratzer d/b/a Promo Graphics, Inc., & Promo Graphics, Inc., Defendants.
No. 92-0992-CIV-ORL-18.
United States District Court, M.D. Florida, Orlando Division.
August 17, 1993.
*380 Thomas Bennett Dewolf, Michael W.O. Holihan, Dewolf, Ward, O'Donnell & Hoofman, P.A., Orlando, FL, for plaintiffs.
Bernard D. Sommers, Law Office of Bernard D. Sommers, Maitland, FL, for defendants.
ORDER
G. KENDALL SHARP, District Judge.
In their complaint, Dive N' Surf, Inc., Gold's Gym Enterprises, Inc., Fox, Inc., Twentieth Century Fox Film Corp. d/b/a in part as Twentieth Century Fox Licensing and Merchandising Corp., Walt Disney Co., Warner Bros., Inc., and D.C. Comics, Inc. (plaintiffs) allege that Richard Anselowitz, Robin Kratzer, and Promo Graphics, Inc. unlawfully infringed on plaintiffs' copyrights and trademarks. Plaintiffs' four-count complaint asserts causes of action for (1) copyright infringement; (2) trademark infringement; (3) false designation of origin; and (4) unfair competition under Florida common law. Fox, Inc., Twentieth Century Fox Film Corp., Walt Disney Co., Warner Bros., Inc., and D.C. Comics, Inc. (copyright plaintiffs) are the only plaintiffs alleging copyright infringement. Dive N' Surf, Inc., Gold's Gym Enterprises, Inc., and D.C. Comics, Inc. (trademark plaintiffs) are the only plaintiffs alleging trademark infringement claim. All plaintiffs allege false designation of origin and unfair competition. Plaintiffs seek permanent injunctive relief, monetary damages, and attorney's fees and costs, to compensate for losses incurred because of the alleged infringements. Plaintiffs filed a motion for partial summary judgment on the copyright and trademark infringement claims. The court entered a default judgment against Promo Graphics, Inc. and plaintiffs voluntarily dismissed Robin Kratzer. Therefore, only Richard Anselowitz (defendant) filed a memorandum in opposition to plaintiffs' motion for summary judgment. Based on the case file and relevant law, the court finds that plaintiffs are entitled to partial summary judgment on their copyright and trademark infringement claims.
I. Facts
Defendant operates a business known as Promo Graphics, Inc. (Promo Graphics), which creates designs and prints them on t-shirts. Plaintiffs allege that through Promo Graphics, defendant unlawfully duplicated plaintiffs' federally protected designs and subsequently sold t-shirts and other items bearing the designs to the public. The Sheriff of Seminole County Florida (Sheriff) informed *381 plaintiffs that he had received a tip that defendant was manufacturing and selling counterfeit copies of plaintiffs' property. The tip came from a private investigator employed by copyright and trademark owners, other than plaintiffs, who suspected that Promo Graphics was infringing on their rights. After the private investigator witnessed defendant selling counterfeit merchandise, the investigator contacted the Sheriff to obtain a search and seizure warrant for the Promo Graphics premises. A deputy sheriff executed the warrant and seized numerous items which confirmed that defendant was selling counterfeit merchandise. The State of Florida brought criminal charges against defendant, who pleaded "no contest" to a theft charge. Further, in individual affidavits, three former employees of Promo Graphics state that defendant ordered his employees to recreate plaintiffs' copyrighted or trademarked properties in large quantities.
II. Conclusions of Law
A. Defendant's Challenge to Affidavits
Although defendant does not challenge the content of the Promo Graphics employees' affidavits, defendant maintains that the affidavits create a disputed issue of material fact and that the court should strike the affidavits because plaintiffs' counsel allegedly committed a procedural error. Plaintiffs' counsel obtained samples of the allegedly counterfeit designs and showed them to the former employees for verification purposes during the employees' depositions. Defendant contends that plaintiffs' counsel improperly obtained the samples in violation of state and federal law, which purportedly requires a court order before evidence seized pursuant to a search warrant is released for discovery. 15 U.S.C. § 1116; Fla.Stat.Ann. § 705.105. However, neither statute supports defendant's proposition. Section 705.105 does not apply to plaintiffs' action because counsel only used the evidence samples for verification purposes and did not challenge legal title to the evidence. See Fla. Stat.Ann. § 705.105 (concerning legal title and disposition of evidence in court custody). Likewise, 15 U.S.C. § 1116 does not apply to plaintiffs' action because plaintiffs filed a claim pursuant to 15 U.S.C. § 1114(1)(b), not § 1114(1)(a). See 15 U.S.C. § 1116 (requiring a court order only when an action is filed pursuant to 15 U.S.C. § 1114(1)(a)). Because defendant fails to show a procedural error, the court denies defendant's request to strike the affidavits.
B. Plaintiffs' Motion for Summary Judgment
1. Standard for Summary Judgment.
Summary judgment is authorized 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 fact and that the moving party is entitled to a judgment as a matter of law." Fed.R.Civ.P. 56(c); accord Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 250, 106 S.Ct. 2505, 2511, 91 L.Ed.2d 202 (1986). Material facts are facts that might affect the outcome of the case under the applicable substantive law. Anderson, 477 U.S. at 248, 106 S.Ct. at 2510.
The moving party bears the initial burden of proving that no genuine issue of material fact exists and the moving party may rely solely on his pleadings to satisfy this burden. Celotex v. Catrett, 477 U.S. 317, 323-24, 106 S.Ct. 2548, 2553, 91 L.Ed.2d 265 (1986). To defeat summary judgment, the non-moving party who does not bear the burden of proof at trial must submit sufficient evidence supporting the claimed factual dispute to require a jury or judge to resolve the parties' differing versions of the truth at trial. Anderson, 477 U.S. at 249, 106 S.Ct. at 2510. If the evidence offered by the non-moving party is merely colorable or is not significantly probative, summary judgment may be granted. Id. at 249-50, 106 S.Ct. at 2511. Further, summary judgment is mandated against a party who fails to prove an essential element of his case, on which that party will bear the burden of proof at trial. Celotex, 477 U.S. at 322, 106 S.Ct. at 2552.
2. Copyright Infringement.
To prevail on a claim for copyright infringement, plaintiffs must prove (1) ownership of; (2) a valid copyright; and (3) that *382 defendant copied the protected work. See Evans v. Continental Homes, Inc., 785 F.2d 897, 903 (11th Cir.1986). Copyright plaintiffs' copyright registration certificates constitute prima facie evidence of the copyright ownership and validity of each design to which plaintiffs claim exclusive rights. 17 U.S.C. § 410(c); accord Quartet Music v. Kissimmee Broadcasting, Inc., 795 F.Supp. 1100, 1102 (M.D.Fla.1992); Intown Enter., Inc. v. Barnes, 721 F.Supp. 1263, 1264 (N.D.Ga.1989). Furthermore, the employee affidavits provide undisputed evidence that defendant ordered his employees to recreate plaintiffs' designs in large quantities. Although plaintiffs must show that defendant participated in the alleged copyright infringement, plaintiffs do not have to prove that defendant personally duplicated plaintiffs' designs. See Screen Gems-Columbia Music, Inc. v. Metlis and Lebow Corp., 453 F.2d 552, 554 (2d Cir.1972) (holding that "copyright infringement is in the nature of a tort, for which all who participate in the infringement are jointly and severally liable"); Shapiro, Bernstein & Co. v. H.L. Green Co., 316 F.2d 304, 307 (2d Cir.1963) (holding that the agency rule of respondeat superior applies to copyright infringement that an employee performed at the direction of the employer). Accordingly, the court finds no disputed issues of material fact concerning defendant's infringing activities and that copyright plaintiffs proved each element of a copyright infringement claim, which entitles copyright plaintiffs to summary judgment on Count I. See Fed.R.Civ.P. 56(c); accord Anderson, 477 U.S. at 249-50, 106 S.Ct. at 2511.
3. Trademark Infringement.
To prevail on a trademark infringement claim pursuant to 15 U.S.C. § 1114(1)(b), trademark plaintiffs must prove that (1) defendant did not have plaintiffs' consent; (2) to duplicate plaintiffs' registered marks; (3) in connection with a sale of articles bearing those marks; and (4) that the duplication was likely to cause confusion, mistake, or deception among the public. See 15 U.S.C. § 1114(1)(b).
In his deposition, defendant admits that trademark plaintiffs never granted defendant or Promo Graphics permission to produce or otherwise duplicate plaintiffs' respective trademarks. Thus, the undisputed facts show that any duplication by defendant of trademark plaintiffs' designs was without consent.
To prove the second and third elements, plaintiffs submit the unrefuted affidavits of three former employees of Promo Graphics which establish that defendant ordered his employees to duplicate plaintiffs' protected logos so that defendant could apply the logos to various articles, principally t-shirts, and sell the articles to the public as if the logos were genuine. Trademark infringement is a tort and any member of the distribution chain is liable as a joint tort-feasor. See, e.g., Costello Publishing Co. v. Rotelle, 670 F.2d 1035, 1043 (D.C.Cir.1981). Therefore, defendant incurred liability for copying the designs when he ordered his employees to copy trademark plaintiffs' designs. Further, trademark plaintiffs submit the unrefuted affidavit of the private investigator who originally exposed defendant's alleged infringing activities. The investigator states that he witnessed defendant selling counterfeit t-shirts and other articles at a flea market and at the Promo Graphics shop. Thus, defendant duplicated trademark plaintiffs' designs in connection with the sale of the items.
As to the fourth element, because the counterfeit symbols and the genuine symbols are substantially similar as to both design and use and because defendant sold the counterfeit symbols to the public, the court presumes that defendant's counterfeit items caused public confusion in the marketplace. See Polo Fashions v. Croftex, Inc., 816 F.2d 145, 148 (4th Cir.1987) (holding that a presumption of public confusion arises when counterfeit symbols are substantially identical to genuine symbols and are used in the same manner as the genuine symbols are used). Accordingly, trademark plaintiffs are entitled to summary judgment on their infringement claim because no genuine issue of material fact exist and because they prove each element of a valid claim for trademark infringement. See Fed.R.Civ.P. 56(c); accord *383 Anderson, 477 U.S. at 249, 106 S.Ct. at 2511.
C. Relief
Plaintiffs seek permanent injunctive relief, monetary damages, and attorney's fees and costs. Defendant does not oppose plaintiffs' demands.
1. Permanent Injunctions.
As to copyright plaintiffs' claim, 17 U.S.C. § 502 authorizes permanent injunctive relief to prevent further infringement of their rights. Accord Pacific & Southern Co. v. Duncan, 744 F.2d 1490, 1499 (11th Cir.), cert. denied, 471 U.S. 1004, 105 S.Ct. 1867, 85 L.Ed.2d 161 (1984); see NICK-O-VAL Music Co. v. P.O.S. Radio, Inc., 656 F.Supp. 826, 828 (M.D.Fla.1987). Accordingly, because plaintiffs proved that defendant infringed on their copyrights, the court permanently enjoins defendant from any further copyright infringement. See NICK-O-VAL, 656 F.Supp. at 828 (granting permanent injunctive relief without evidence of a substantial likelihood of future infringement).
Trademark plaintiffs similarly seek a permanent injunction restraining defendant from any further trademark infringement. To obtain a permanent injunction, trademark plaintiffs must prove that (1) the marks plaintiffs seek to protect are eligible for protection; (2) plaintiffs are senior users of the marks; (3) a likelihood of confusion between plaintiffs' marks and defendant's marks exists; and (4) the likelihood of confusion will actually cause irreparable injury for which there is no adequate legal remedy. Union Nat'l Bank of Tex., Austin, Tex. v. Union Nat'l Bank of Tex., Laredo, Tex., 909 F.2d 839, 844 (5th Cir.1990).
Plaintiffs' trademark registration certificates that name plaintiffs as principal registrants with no assignees establish that plaintiffs' marks are protected and that plaintiffs are senior users. See 15 U.S.C. § 1057(b) (providing that the certificates are prima facie evidence of trademark validity and plaintiffs' rights). The substantial similarity between plaintiffs' protected marks and the marks that defendant manufactured triggers a legal presumption of confusion between the two marks. See Polo Fashions, 816 F.2d at 148. Defendant does not dispute plaintiffs' claim that trademark infringement per se causes irreparable harm for which no judicial decree adequately compensates a plaintiff injured by infringement. Accordingly, the court permanently enjoins defendant from infringing on plaintiffs' trademarks in the future. Tally-Ho, Inc. v. Coast Community College Dist., 889 F.2d 1018, 1029 (11th Cir. 1989).
2. Monetary Damages.
Copyright plaintiffs elect to receive statutory damages and seek the maximum allowable statutory damages of $20,000 per infringement and an additional $5,000 per infringement because defendant's actions were allegedly willful. 17 U.S.C. § 504(c)(1); 17 U.S.C. § 504(c)(2) (providing that statutory damage awards may range from $500-$20,000 for each mark counterfeited and the court may increase the award up to $100,000 per infringement if plaintiff proves that defendant willfully infringed on the copyrights). To determine the appropriate level of statutory damages, the court should generally consider the expenses defendant saved and profits defendant reaped in connection with the infringements, the revenues plaintiffs lost as a result of defendant's conduct, and defendant's state of mind whether willful, knowing, or merely innocent. N.A.S. Import Corp. v. Chenson Enter., Inc., 968 F.2d 250, 252 (2d Cir.1992). However, the measure of damage to copyright plaintiffs is incapable of exact proof because defendant consistently invoked the Fifth Amendment when asked, in his deposition, about the volume of and profits from his infringing activities. Accordingly, the court finds that copyright plaintiffs are entitled to the maximum statutory damages without exact proof of the measure of damages. F.W. Woolworth Co. v. Contemporary Arts, Inc., 344 U.S. 228, 233, 73 S.Ct. 222, 225, 97 L.Ed. 276 (1952) (holding that statutory damages should not merely compel restitution of profit and reparation for injury, but should also discourage wrongful conduct). In addition, the court grants copyright plaintiffs' request for an additional $5,000 per infringement because the affidavits of the *384 former Promo Graphics employees establish that defendant's infringement was willful. See 17 U.S.C. § 504(c)(2) (1988 & Supp.1993).
Trademark plaintiffs seek monetary damages amounting to $11,000 and request that the court allow treble damages. See 15 U.S.C. § 1117(b) (providing that the court, in its discretion, may award up to three times actual damages). District courts have broad discretion in trademark infringement cases to award any monetary relief necessary to serve the interests of justice, including defendant's profits, plaintiff's damages, and litigation costs. 15 U.S.C. § 1117(a) (1988); Shell Oil, Co. v. Commercial Petroleum, Inc., 928 F.2d 104, 108 (4th Cir.1991); Ramada Inns, Inc. v. Gadsen Motel, Co., 804 F.2d 1562, 1564 (11th Cir.1986). The court's discretion is especially important in the instant case because defendant's actual profits from the trademark infringement and trademark plaintiffs' actual costs from the infringement are incapable of computation because defendant consistently invoked the Fifth Amendment when questioned about his profits from the counterfeiting venture.
Based on the number of heat transfers that the Sheriff seized and the sale price of defendant's transfers, trademark plaintiffs request damages as follows:
D.C. Comics, Inc. 9000 (actual) transfers × $1.00 = $9,000
Dive N' Surf, Inc. 1000 (estimate) transfers × $1.00 = $1,000 and
Gold's Gym, Enter. 1000 (estimate) transfers × $1.00 = $1,000.
Because the damage approximations that trademark plaintiffs supplied are the only measure of their injury from defendant's infringement and because defendant does not challenge plaintiffs' estimates, the court finds that using those estimates to fashion monetary relief is "just and reasonable" to compensate trademark plaintiffs for their loss and also to deter future infringement. See Conopco, Inc. v. May Dep't Stores Co., 784 F.Supp. 648, 680 (E.D.Mo.1992) (citing Bigelow v. RKO Radio Pictures, Inc., 327 U.S. 251, 264, 66 S.Ct. 574, 579, 90 L.Ed. 652 (1946), (which held that in trademark infringement cases in which the nature of the injury precludes exact computation of damages, the trademark owner may recover damages based on just and reasonable inferences, which provide only an approximation of the damages); accord F.W. Woolworth Co., 344 U.S. at 233, 73 S.Ct. at 225.
3. Attorney Fees.
Copyright plaintiffs request that the court award them reasonable attorney's fees and costs. Because copyright plaintiffs are the prevailing party, the court finds that plaintiffs are entitled to full costs of the litigation, including a reasonable attorney's fee, as pertains to Count I of the complaint. 17 U.S.C. § 505 (1988 & Supp.1993); Accord Cable/Home Communication Corp. v. Network Prods., Inc., 902 F.2d 829, 853 (11th Cir.1990). Similarly, trademark plaintiffs are entitled to full costs of the litigation, including a reasonable attorney's fee, as pertains to Count II of the complaint because the affidavits of the former Promo Graphics employees establish that defendant's infringement was malicious, fraudulent, deliberate and wilful. 15 U.S.C. § 1117(a); accord Dieter v. B & H Indus., 880 F.2d 322, 329 (11th Cir.1989), cert denied, 498 U.S. 950, 111 S.Ct. 369, 112 L.Ed.2d 332 (1990) (holding that a trademark infringement case is "exceptional" and justifies the award of reasonable a attorney's fee if defendants infringement was malicious, fraudulent, deliberate, and wilful).
III. Conclusion
The court finds that the undisputed facts as well as the reasonable inferences drawn from the facts fail to create a genuine issue of fact requiring trial. Further, the court concludes that plaintiffs proved each element of their respective claims for copyright and trademark infringement. Therefore, the court GRANTS plaintiffs' motion for partial summary judgment on Counts I and II of the complaint. (Doc. 21.) Accordingly, the court permanently enjoins defendant from further infringement of plaintiffs' copyrights or trademarks and finds defendant liable for monetary damages in the amount of $250,000 for copyright infringement and $33,000 for trademark infringement. Further, the court finds defendant liable for costs of this litigation, including reasonable attorney's fees, *385 and therefore, plaintiffs shall submit a motion for the award of attorney's fees pursuant to Local Rule 4.18. Because the relief the court grants pursuant to Counts I and II of the complaint encompasses all relief requested in plaintiffs' prayer for relief, the court DISMISSES as moot Counts III and IV of the complaint.
It is SO ORDERED.
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942 So.2d 523 (2006)
Gail Rolland FREMIN, et al.
v.
ENTERGY NEW ORLEANS, INC., et al.
No. 2006-CC-1700.
Supreme Court of Louisiana.
November 17, 2006.
Rehearing denied.
CALOGERO, C.J., would grant.
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Filed 1/9/14 Collateral Loan and Secondhand Dealers Assn. v. County of Sacramento CA3
NOT TO BE PUBLISHED
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for
publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication
or ordered published for purposes of rule 8.1115.
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
THIRD APPELLATE DISTRICT
(Sacramento)
----
COLLATERAL LOAN AND SECONDHAND C070987
DEALERS ASSOCIATION,
(Super. Ct. No.
Plaintiff and Appellant, 34-2012-00118609-CU-JR-GDS)
v.
COUNTY OF SACRAMENTO et al.,
Defendants and Respondents.
Plaintiff Collateral Loan and Secondhand Dealers Association (CLSDA), a trade
association of licensed pawnbrokers and secondhand dealers, brought this action for
injunctive relief on behalf of members located in Sacramento County. CLSDA sought to
prevent defendant Scott Jones (sued in his official capacity as Sheriff of Sacramento
1
County) (the Sheriff) from enforcing various provisions of Sacramento County Ordinance
No. 1505 (the ordinance) that defendant County of Sacramento (defendant County or,
collectively, defendants) enacted in December 2011, replacing title 4, chapter 4.30 of the
Sacramento County Code. CLSDA argued the ordinance’s creation of a detailed
countywide reporting system for pawnbrokers and secondhand dealers conflicted with
state law on the subject (i.e., Bus. & Prof. Code, § 21625 et seq.1 and portions of the
Financial Code). The parties stipulated to a moratorium on enforcement of the ordinance
pending a hearing on CLSDA’s noticed motion for a preliminary injunction.
After the hearing, the trial court granted a preliminary injunction as to only two
minor provisions of the ordinance. It concluded that CLSDA had otherwise failed to
demonstrate that it was likely to prevail on the merits of its claims. CLSDA filed a
timely notice of appeal from the trial court’s order. (Courtesy Temporary Service, Inc. v.
Camacho (1990) 222 Cal.App.3d 1278, 1286 [order partially granting and partially
denying preliminary injunction appealable].)
CLSDA contends chapter 4.30 of the Sacramento County Code expressly conflicts
with state law in various respects.2 We agree. In light of this holding, we do not need to
reach CLSDA’s additional contention that the ordinance violates the right to privacy in
financial information. We will therefore modify the trial court’s order to include these
additional subjects within the scope of the preliminary injunction against enforcement.
1 Undesignated statutory references are to the Business and Professions Code.
2 Initially, CLSDA had also argued the remainder of the ordinance was invalid as
duplicative of state law, but CLSDA appears to concede in its reply brief that this general
principle does not apply in the present context.
2
FACTUAL AND PROCEDURAL BACKGROUND
This action is essentially a facial challenge to defendant County’s ordinance based
on the provisions of state law; the facts adduced at the hearing generally are not material
to our disposition. As a result, there is little factual or procedural background before our
discussion of the applicable law.
The verified complaint identifies 11 of the 19 substantive sections of the ordinance
as “duplicat[ing], contradict[ing] and add[ing] on to . . . an area of regulation fully
occupied by general laws of this state,” and alleges the Sheriff was notifying the affected
businesses that an electronic reporting (e-filing) system contained in the ordinance was
mandatory. The complaint also alleged that the Sheriff had already identified a particular
private vendor, Business Watch International (BWI); and acquisition of the hardware and
software necessary for reporting to BWI would result in significant costs (about $850
before a discount, according to four proposals attached as exhibits to the complaint).
CLSDA therefore requested injunctive relief, and a judicial declaration of the invalidity
of the ordinance.
In support of the request for a preliminary injunction, CLSDA included three
declarations. Its counsel stated that he had been working in support of legislation to fund
a statewide uniform e-filing system through an increase in state license fees, which the
Department of Justice (DOJ) would maintain (asking for judicial notice of the February
2011 version of Assem. Bill No. 391). Counsel was also familiar with BWI, and averred
that the information it would collect would be stored on servers outside the state that are
not under the control of the DOJ. He included a copy of the DOJ form (JUS-123) that
CLSDA members were presently filing with police chiefs or sheriffs, which gathered the
information specified in section 21628. A Sacramento County member of CLSDA stated
that the Sheriff had been insisting the member’s businesses adopt the e-filing system,
which would subject the member to conflicting reporting requirements under local and
3
state law, and result either in the additional costs of computer equipment or sanctions
under the ordinance for noncompliance (which include criminal punishment or grounds
for action against the license required under the ordinance (Sac. County Code,
§ 4.30.100)). The memorandum in support of the request for preliminary injunction
included exhibits that detailed the manner in which the ordinance duplicated state law, or
conflicted with or added to state requirements (specifying seven sections in the latter
exhibit).
In their opposition, defendants noted the provisional status of any pending laws.
They also included declarations that attested to the mistaken and limited nature of the
representations regarding the mandatory aspect of e-filing under the ordinance; the secure
nature of the out-of-state server housed in a police facility to which BWI would route the
e-filings; the minimal actual costs of e-filing with BWI (a process which does not require
the hardware and software that CLSDA had identified); the Sheriff’s use of the DOJ’s
JUS-123 forms rather than a different form; and the DOJ’s refusal since 1990 to be a
statewide depository of JUS-123 forms, which are instead stored with local agencies and
are subject only to whatever efforts each agency makes to collect and retrieve the data
from them (without statewide dissemination or access).
In its tentative ruling, the trial court agreed that CLSDA was likely to prevail on
its assertion that provisions in Sacramento County Code section 4.30.025, subdivision
(A) (those which mandate a daily 10:00 a.m. deadline for mailing or e-filing the reports
and the use of a sheriff’s form) are inconsistent with state law, and that there was a threat
of irreparable injury because violations were subject to criminal prosecution and a threat
to licensure status. However, with respect to the claimed conflict between the creation in
Sacramento County Code section 4.30.025, subdivision (C) of an e-filing system other
than the contemplated DOJ-created system under state law (former § 21628, subd. (j),
4
Stats. 2010, ch. 178, § 16),3 and the ordinance permitting use of defendant County’s
e-filing system rather than the hardcopy reports required under the state law, the trial
court concluded CLSDA was not likely to prevail. It held that defendant County’s
e-filing system was optional and thus not a “requirement” inconsistent with the
provisions of state law, and state law did not expressly preclude development of local
e-filing systems. The court did not address any of the other conflicts raised in CLSDA’s
briefing. It also rejected CLSDA’s invocation of the general principle that ordinances
duplicative of state law are preempted, because the Legislature has authorized duplicative
ordinances relating to pawnbrokers. (Malish v. City of San Diego (2000) 84 Cal.App.4th
725, 736 (Malish).) The ruling did not address the subject of the pending Assembly Bill
No. 391 (2011-2012 Reg. Sess.).
At the hearing on the preliminary injunction, CLSDA’s primary focus was the
ordinance’s e-filing system. It conceded that participation was indeed voluntary, but
argued that it was inconsistent with state law and impermissibly sought to give the
covered businesses an ability to opt out of the paper reports required under state law. The
CLSDA also raised several other conflicts identified in its briefing that the trial court had
not addressed in its tentative ruling: (1) the inclusion in Sacramento County Code section
4.30.030 of additional mandatory elements for the reports (subd. (H) of which requires a
description of a pledger’s “style of dress, height, age, sex, complexion, color of mustache
or beard, or both, where the same are worn, and if neither is worn, such fact shall be
noted”) that are not specified in state law; (2) the inclusion in Sacramento County Code
section 4.30.050, subdivision (C) of a “hold” on any transaction after the pledging of an
item for specified time periods that are inconsistent with state law; (3) the authorization
in Sacramento County Code section 4.30.090 to collect a transaction fee to defray the
3 The parties conceded that the DOJ had yet to act on this statutory authorization as of
the time of the hearing.
5
costs to the pawnbrokers and dealers of licensure under the ordinance and the e-filing
system, which is not among the charges that state law permits pawnbrokers to recover as
compensation; and (4) Sacramento County Code section 4.30.015, subdivision (D)’s
definition of “pawnbroker” adds to the definition under state law in an unclear manner.
Following the hearing, the trial court reiterated its tentative ruling in April 2012 without
substantive change.
In August 2012, the Legislature enacted Assembly Bill No. 391 (2011-2012 Reg.
Sess.) as an urgency measure. (Stats. 2012, ch. 172, §§ 2-6.) We will address its
pertinent provisions in the Discussion.
DISCUSSION
I. General Preemption Principles
“Ordinarily, a party challenging the superior court’s ruling on a motion for a
preliminary injunction must demonstrate an abuse of discretion in evaluating the
interrelated factors of the plaintiff’s likelihood of success and the magnitude of interim
harm to the plaintiff if the preliminary injunction is denied.” (Efstratis v. First Northern
Bank (1997) 59 Cal.App.4th 667, 671.) “However, where the superior court (as here)
limits its ruling to only one of these factors, it is that ground which must conclusively
support the order.” (Ibid.) “Where the ‘likelihood of prevailing on the merits’ factor
depends upon a question of law rather than upon evidence to be introduced at a . . . full
trial, the standard of review is not abuse of discretion but whether the superior court
correctly interpreted and applied statutory law, which we review de novo.” (Id. at
pp. 671-672.) We review a request for injunctive relief under the law in effect at the time
6
we render our decision. (6 Witkin, Cal. Procedure (5th ed. 2008) Provisional Remedies,
§ 402, p. 344.)4
If local ordinances and regulations conflict with state law, they are preempted. A
conflict exists if it touches upon a subject that state law expressly (or through necessary
implication) fully occupies, or where it duplicates (by being coextensive) or contradicts
state law on a subject. (O’Connell v. City of Stockton (2007) 41 Cal.4th 1061, 1067-
1068.)
On the subject of the regulation of pawnbrokers and secondhand dealers, the
Legislature has expressly declared that it was enacting these provisions “to curtail the
dissemination of stolen property and to facilitate the recovery of stolen property by
means of a uniform, statewide, state-administered program of regulation . . . . [¶] . . . [¶]
. . . [T]his article shall not be superseded or supplanted by the provisions of any
ordinance or charter . . . .” (§ 21625, 1st & 3d pars., italics added.) To this end, sections
21637 and 21638 prohibit any locality from adopting any “[i]dentification, holding, or
reporting requirements for the acquisition of tangible personal property . . . by
pawnbrokers and secondhand dealers, other than as set forth in Sections 21628 . . . and
21636” (§ 21637, subd. (b)) except where (in the classic double negative) “not
inconsistent” with state law (§ 21637). Because these statutes recognize the possibility of
“not inconsistent” local legislation, we are not concerned with express or implied
preemption of the subject of regulation. (Malish, supra, 84 Cal.App.4th at p. 729.) Thus,
a locality may require a local license in addition to the state license issued to
pawnbrokers and secondhand dealers, because even if “duplicative” and “arguably
unnecessary,” this “is not per se inconsistent with the requirement of a state license.”
4 We thus disregard defendants’ efforts to have us blindfold ourselves to Assembly Bill
No. 391.
7
(Id. at p. 730.) It is also permissible for a locality to provide rights of access and
inspection to its law enforcement agencies no greater than that allowed under state law.
(Id. at p. 732.) On the other hand, revocation of a local license on grounds broader than
authorized for revocation of a state license (e.g., for a single violation of state law rather
than a pattern of conduct) is actually inconsistent with state policy and therefore
preempted (id. at p. 734), and in the particular context of identification, holding, and
reporting requirements, a locality cannot require a form other than the JUS-123, or add
requirements other than those specified in section 21628 (Malish, supra, at pp. 735, 736;
accord, id. at pp. 736-737 [upholding another duplicative local provision, and striking
down provisions specifying holding requirements other than those appearing in state
law]).
II. Local E-filing System
At the time of the trial court’s ruling, former section 21628 (Stats. 2010, ch. 178,
§ 16) provided that pawnbrokers and other secondhand dealers “shall report daily, or on
the first working day after receipt or purchase of the property, on forms either approved
or provided at actual cost by the [DOJ], all tangible personal property . . . [acquired in the
course of business], to the chief of police or to the sheriff . . . .” In subdivisions (a) to (g),
the statute then prescribed the contents of the reports. In subdivision (j), the statute first
directed the DOJ to develop categories of tangible personal property to be incorporated
into the reports, and to develop a format for e-filing; it then provided, “Twelve months
after the [e-filing] format and the categories . . . have been developed, each secondhand
dealer . . . shall [e-file] using this format the information required by this section . . . .
Until that time, each secondhand dealer . . . may either continue to report this information
using existing forms and procedures or may begin [e-filing] . . . as soon as [the categories
and format have] been developed.” (§ 21628, subd. (j)(2), (1).)
8
Four months after the trial court’s ruling, the newly enacted Assembly Bill
No. 391 declared, “It is the intent of the Legislature to enact legislation that fully funds
the cost of developing and implementing a single, statewide, uniform [e-filing] reporting
system of the information required to be reported in accordance with Section 21628 . . .
through the imposition of a fee 120 days after enactment of this act and thereafter upon
the application for and renewal of a license to act as a secondhand dealer or pawnbroker.”
(Stats. 2012, ch. 172, § 1, eff. Aug. 17, 2012, italics added.) It further declared the goal
of relieving these businesses from the costs associated with the paper transactions. (Ibid.)
As amended, section 21628 now provides, “Every secondhand dealer . . . shall report
daily, or on the first working day after receipt or purchase of secondhand tangible
personal property, on forms or through an [e-filing] reporting system approved by the
[DOJ] . . . .”5 The information to be reported remained unchanged. Subdivision (j) now
provides for the development of categories and “upon the availability of sufficient funds
in the . . . Fund created pursuant to Section 21642.5 [enacting a $300 license fee for this
purpose], the [DOJ] shall promptly develop a single, statewide, uniform [e-filing]
reporting system to be used to transmit these secondhand dealer reports.” (§ 21628, subd.
(j)(1), italics added.) Until the e-filing system is operating, reports “may continue . . . in
paper format on forms approved of or provided by the [DOJ].” (Id., subd. (j)(2)(A).)
Upon the e-filing system becoming operative, all reports must be e-filed, except that
during the first 30 days of the e-filing system’s implementation there must also be a paper
report as well. (Id., subd. (j)(2)(B).)
The trial court’s ruling focused on the voluntary nature of defendant County’s
e-filing system and the absence of any statewide system at that time (and presumably at
the present time). This misses the mark, however.
5 The term “secondhand dealer” in the statutory scheme includes those who “tak[e] in
pawn” (e.g., pawnbrokers). (See § 21626, subd. (a).)
9
Sacramento County Code section 4.30.025, subdivision (C) states, “Upon the
implementation of an [e-filing] reporting system by the Sheriff, every pawnbroker[ and]
secondhand dealer . . . may elect to commence reporting as required by this section by
means of such [e-filing] reporting system in lieu of a paper form.” It may be that a
cumulative and voluntary e-filing system, organized in a way to best suit local needs,
would not necessarily be “per se inconsistent” with the state law interest in a single
uniform e-filing system. (Malish, supra, 84 Cal.App.4th at p. 730.) However, the
ordinance purports to allow Sacramento businesses to opt to use its e-filing system in lieu
of their obligation under state law to file paper reports until 30 days after the state e-filing
system is operative. Section 21628 does not expressly allow for this local alternative to
its express mandate. Contrary to the argument of defendants, subdivision (j)(2)(A)’s
choice of phrase—that reports “may continue . . . in paper format” (italics added)—
cannot be stretched into an endorsement of letting 58 voluntary e-filing systems bloom in
California in lieu of the express requirement for paper reports.
Consequently, CLSDA had demonstrated that it is likely to prevail on this issue,
and the trial court has already concluded that enforcement of the ordinance otherwise
poses a threat of irreparable injury. Therefore, the preliminary injunction must also
restrain defendants from giving effect to the provision allowing businesses to opt out of
filing paper forms.6
6 For the first time in its reply brief, CLSDA identifies two other statutes with which the
ordinance purportedly conflicts, either by granting an exemption not reflected in state law
(Sac. County Code, § 4.30.065, subd. (A)) or not including an exemption in section
21628.1. We will not entertain these arguments. (Sourcecorp, Inc. v. Shill (2012)
206 Cal.App.4th 1054, 1061, fn. 7.)
10
III. Other Conflicting Provisions of the Ordinance
Although CLSDA expressly called the attention of the trial court to other
provisions of the ordinance that it believed conflicted with state law, the trial court
unaccountably did not address them in its ruling. Defendants also ignore them on appeal,
focusing only on the e-filing provision. Whether or not this is a tacit concession of the
invalidity of these other provisions, we agree that the preliminary injunction must extend
to three of these as well.7
A. Transaction Fees
Sacramento County Code section 4.30.090 provides for the Sheriff to collect a
license fee from each of the pawnbrokers and secondhand dealers “to provide for the
direct and indirect costs of processing reported data and enforcing the provisions of
[chapter 4.30].” It authorizes the licensees, in turn, “to charge the amount of . . . ($1.00)
per transaction . . . to defray the cost of said fee.”
As CLSDA points out (without rejoinder from defendants), the Financial Code
extensively prescribes the maximum compensation a pawnbroker can receive in interest:
“no pawnbroker shall charge or receive compensation at a rate exceeding the sum of the
following [rates].” (Fin. Code, § 21200, subd. (a).) “Compensation” is defined as
“expenses, interest, disbursements, storage charges, and all other charges of any nature in
connection with a loan or forbearance.” (Id., § 21001.) Chapter 2 of the Financial Code
also specifies the amount of a loan setup fee (Fin. Code, § 21200.1), creates a schedule of
charges for loans (id., § 21200.5), and specifies the amount of charges for handling and
7 Ordinarily, the trial court’s failure to rule on the merits of these arguments would
warrant remand, because it is the role of this court to review a trial court’s exercise of
its discretion, not to exercise discretion in the first instance. (Right Site Coalition v.
Los Angeles Unified School Dist. (2008) 160 Cal.App.4th 336, 345 (Right Site).) We will
nevertheless undertake “ ‘the unusual, but practical, step of reaching and resolving the
merits’ ” (ibid.) on these narrow questions of law.
11
storage based on the size of the pawned article (id., § 21200.6), processing firearms (id.,
§ 21200.8), and lost pawn tickets (id., § 21201.1). Moreover, as noted above, the
Legislature has now created a new license fee to fund the DOJ’s e-filing system. Nothing
in any of these provisions contemplates a transaction fee to pass through the cost of a
local e-filing system to CLSDA customers. As CLSDA has established a likelihood of
prevailing on this issue and is at risk of irreparable injury from its enforcement, the
preliminary injunction must also restrain defendants from allowing the collection of a
transaction fee as contained in Sacramento County Code section 4.30.090.
B. Additional Reporting Requirements
In Sacramento County Code section 4.30.030, subdivisions (A) through (G), the
ordinance prescribes the collection of the information specified under various state laws,
including section 21628. However, as noted above, Sacramento County Code section
4.30.030, subdivision (H) adds additional reporting requirements.
As we have explained, to the extent the ordinance is duplicative of state law, it is
not preempted. But under the authority of Malish, supra, 84 Cal.App.4th at pp. 735, 736,
it cannot add to the reporting requirements of state law. Having demonstrated that it is
likely to prevail on this issue (without rejoinder from defendants) and is at risk of
irreparable injury from enforcement of the ordinance, CLSDA is entitled to have the
preliminary injunction include a restraint on enforcing Sacramento County Code section
4.30.030, subdivision (H) as well.
C. Holding Requirements
Sacramento County Code section 4.30.050, subdivisions (A) and (B) prescribe a
seven-day holding period after acquisition of any undefined “article or thing” after filing
a report on it except for “tangible personal property,” which is subject to the same 30-day
hold prescribed in section 21636 for tangible personal property. To the extent
Sacramento County Code section 4.30.050, subdivision (A) applies to items that are not
12
tangible personal property,8 it does not conflict with the purposes of section 21636.
Similarly, to the extent section 4.30.050, subdivision (B) duplicates section 21636, it does
not conflict. CLSDA has thus failed to demonstrate that it is likely to prevail on this
issue.
D. Pawnbroker Definition
Sacramento County Code section 4.30.015, subdivision (D) defines a
“pawnbroker” as “a person engaged in . . . the business of lending money . . . upon
personal property, pawns or pledges; or the business of purchasing articles from the
vendors or their assignees at prices agreed upon at or before the time of such purchase.”
(Italics added.) CLSDA purports a lack of understanding of the meaning of the
emphasized portion, but asserts (without rejoinder from defendants) that whatever
meaning is intended in this definition, it cannot depart from either Business and
Professions Code section 21626, subdivision (a) (which specifies that “secondhand
dealers” subject to the reporting requirement include business that involves “buying,
selling, trading, taking in pawn, accepting for sale on consignment, accepting for
auctioning, or auctioning secondhand tangible personal property,” but not coin or firearm
dealers (Bus. & Prof. Code, § 21626, subd. (b)) or Financial Code section 21000, which
defines a “pawnbroker” as “[e]very person engaged in the business of receiving goods . . .
in pledge as security for a loan” for purposes of compensation and other regulations in
division 8 of that code.
We agree that for purposes of identification, holding, and reporting requirements,
the reach of the ordinance must be coextensive with state law and cannot expand or
contract its scope, and therefore CLSDA is likely to prevail on the issue of the altered
8 “Tangible personal property” is defined in Sacramento County Code section 4.30.015,
subdivision (G). An example of items that are not considered tangible personal
property—provided by respondents’ counsel at oral argument—was shoes and purses.
13
definition of “pawnbroker” in Sacramento County Code section 4.30.015, subdivision
(D). Although CLSDA has failed to make any showing that any of its members in
Sacramento County would not otherwise be subject to the reporting requirements, this
lack of harm is not fatal to relief. (Right Site, supra, 160 Cal.App.4th at p. 342.) We will
therefore modify the preliminary injunction in this respect as well.
IV. The Issue of Severing the Ordinance Is Premature
In a one-paragraph argument, CLSDA contends “the remaining valid provisions of
the ordinance cannot be saved because they cannot be considered volitionally severable.”
It asserts it may raise this issue for the first time on appeal because it presents a pure
question of law and “there is no reason to burden the parties with unnecessary
proceedings below.”
Defendants are correct that this argument is premature. Absent a stipulation or
other satisfactory showing that the parties submitted the cause on the merits, the final
judgment on the merits has yet to be entered on the ordinance; all that the trial court
issued was a provisional remedy. (Camp v. Board of Supervisors (1981) 123 Cal.App.3d
334, 357-358; Gray v. Bybee (1943) 60 Cal.App.2d 564, 571.) Thus, further proceedings
in the trial court are not “unnecessary”; in fact, that court is still vested with jurisdiction
over the merits of the matter. (Gray, at p. 571; see Varian Medical Systems, Inc. v.
Delfino (2005) 35 Cal.4th 180, 191 [neither affirmance nor reversal of preliminary
injunction order eliminates need for additional proceedings on the merits].) The question
of severability (or indeed, whether defendants even wish to continue to enforce the
ordinance in light of Assembly Bill No. 391’s amendments) can be addressed in the trial
court in the process of obtaining a declaration of invalidity in the final judgment in this
matter.
14
DISPOSITION
The trial court’s order granting a preliminary injunction against enforcement of the
ordinance is modified to include the subjects discussed in this opinion: Defendants
cannot excuse e-filers from filing paper reports (Sac. County Code, § 4.30.025, subd.
(C)); defendants cannot authorize the collection of a transaction fee (Sac. County Code,
§ 4.30.090); defendants cannot mandate the collection of reporting information not
specified in section 21628 (Sac. County Code, § 4.30.030, subd. (H)); and defendants
cannot expand or contract the definition of pawnbrokers subject to the ordinance in
deviation from state law (Sac. County Code, § 4.30.015, subd. (D)). As thus modified,
the order is affirmed. CLSDA shall recover its costs of appeal. (Cal. Rules of Court, rule
8.278(a)(1), (2).)
BUTZ , J.
We concur:
NICHOLSON , Acting P. J.
HULL , J.
15
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324 S.W.3d 336 (2009)
2009 Ark. 361
SEIZ COMPANY, d/b/a Seiz Sign Company, Appellant,
v.
ARKANSAS STATE HIGHWAY AND TRANSPORTATION DEPARTMENT, Appellee.
No. 09-46.
Supreme Court of Arkansas.
June 18, 2009.
*337 Quattlebaum, Grooms, Tull & Burrow, PLLC, by: John E. Tull III, Little Rock, and Brandon B. Cate, Springdale, for appellant.
*338 Robert L. Wilson, Chief Counsel, and Michelle L. Davenport, Staff Attorney, Arkansas Highway & Transp. Dep't, Little Rock, for appellee.
JIM GUNTER, Justice.
Appellant, Seiz Sign Company, appeals the decision of the circuit court affirming the Arkansas Highway and Transportation Department's (AHTD) denial of appellant's application for a billboard sign permit. On appeal, appellant asserts that the AHTD has incorrectly interpreted Ark.Code Ann. § 27-74-210 (Repl.1994) and that there was no substantial evidence supporting the denial of the application. As this case raises an issue of statutory interpretation, this court has jurisdiction pursuant to Ark. Sup.Ct. R. 1-2(b)(6). We affirm the denial of appellant's application.
On February 28, 2005, appellant filed an application for a permit to construct a billboard on Highway 70 in Saline County. On April 20, 2005, appellant's application was denied by the AHTD for the following reasons: (1) the proposed billboard site was not located in a zoned or unzoned commercial or industrial area as required by Ark.Code Ann. § 27-74-204(a)(2) (Repl. 1994) and the Regulations for Control of Outdoor Advertising on Arkansas Highways (the Regulations), and (2) the proposed billboard site was located in a predominately residential area, and such signs are prohibited in those areas pursuant to Paragraph I.H.2 of the Regulations. A hearing before an AHTD hearing officer was held on June 16, 2005. On May 3, 2006, the denial of appellant's application was affirmed.
Appellant filed a petition for review in the Pulaski County Circuit Court, and a hearing was held on November 29, 2007. In an order filed October 14, 2008, the circuit court found that AHTD's decision was supported by substantial evidence and affirmed the denial of the application. Appellant then filed a timely notice of appeal.
Review of administrative agency decisions, by both the circuit court and appellate courts, is limited in scope. Nash v. Ark. Elevator Safety Bd., 370 Ark. 345, 259 S.W.3d 421 (2007). The standard of review to be used by both the circuit court and the appellate court is whether there is substantial evidence to support the agency's findings. Id. The appellate court's review is directed, not toward the circuit court, but toward the decision of the agency, because administrative agencies are better equipped by specialization, insight through experience, and more flexible procedures than courts, to determine and analyze legal issues affecting their agencies. Staton v. Ark. State Bd. of Collection Agencies, 372 Ark. 387, 277 S.W.3d 190 (2008). When reviewing such decisions, we uphold them if they are supported by substantial evidence and are not arbitrary, capricious, or characterized by an abuse of discretion. Id. We review issues of statutory interpretation de novo, City of Ft. Smith v. Carter, 372 Ark. 93, 270 S.W.3d 822 (2008); however, the interpretation placed on a statute or regulation by an agency or department charged with its administration is entitled to great deference and should not be overturned unless clearly wrong. Cave City Nursing Home, Inc. v. Ark. Dep't of Human Servs., 351 Ark. 13, 89 S.W.3d 884 (2002).
Arkansas Code Annotated section 27-74-204(a) provides that billboards may be erected (1) within those areas zoned industrial or commercial under state law, or (2) within unzoned commercial or industrial areas that are determined by agreement between the State Highway Commission (Commission) and the United States Secretary of Transportation. Section 27-74-211(b) (Repl.1994) provides that the definition of an unzoned commercial or industrial *339 area shall be determined by agreement between the Commission and the Secretary of Transportation but shall be no more restrictive than that required by Title 23 of the U.S.Code. Title 23 defines unzoned commercial or industrial areas as unzoned areas actually used for commercial or industrial purposes as defined in the agreements between the Secretary of Transportation and each state. 23 C.F.R. § 750.703(l) (2008). Page Five, Paragraph I.H of the Regulations defines unzoned commercial, business, or industrial areas as
[T]he land occupied by the regularly used building, parking lot, and storage or processing area of a commercial, business, or industrial activity, and that land within 600 feet thereof on both sides of the highway. The unzoned land shall not include:
1. Land on the opposite side of an interstate or primary freeway highway from an unzoned commercial, business, or industrial area, as defined above.
2. Land predominantly used for residential purposes.
3. Land zoned by state or local law, regulation, or ordinance.
4. Land on the opposite side of a non-freeway primary highway which is deemed scenic by the State Highway Department.
Page Five, Paragraph F defines commercial or industrial activities to include those activities generally recognized as commercial or industrial by public zoning authorities in Arkansas, and that are visible from the main road, but not those that are more than 660 feet from the nearest edge of the right-of-way. And finally, Ark.Code Ann. § 27-74-210(b) defines "land predominately used for residential purposes" as
only those tracts of land within an unzoned commercial, business, or industrial area on a primary or interstate highway which are occupied by a building regularly and principally used as a residence and those tracts of land adjacent to those residential tracts which are under the same ownership as the residential tracts and which are actively used and maintained for residential purposes.
In this present case, there is no dispute that the proposed billboard site is within an unzoned area with regular commercial activity present and that the commercial activity is visible from the road and within 660 feet of the road. The dispute in this case centers on how the second exclusion in Paragraph I.H, the "land predominately used for residential purposes," should be interpreted.
Applying the above statutory and regulatory parameters in deciding whether a billboard may be erected at a certain site, the AHTD first determines whether the area is a zoned or unzoned commercial, business, or industrial area. If the area is an unzoned area with commercial activity on site, then the character of the entire surrounding area (600 feet on each side, 660 feet back), is determined. Within this area, there cannot be more residential properties than commercial, or the land will be deemed "predominately used for residential purposes" and a billboard will not be allowed on the site.
For his first point on appeal, appellant asserts that this interpretation is clearly wrong. Appellant contends that the AHTD has incorrectly applied the exclusion in paragraph H.2 and argues that the application of the exclusion should serve to reduce the overall size of the unzoned commercial area but not to eliminate the entire area as being a permissible site for the erection of a billboard. Addressing the exclusions found in paragraph H, appellant explains that H.1 and H.4 both serve to eliminate the land on the opposite side of *340 the road from being an eligible site for a billboard. At the administrative hearing, an AHTD representative agreed that the application of the H.1 and H.4 exclusions "cut the size of the unzoned area in half as far as an acceptable building site for a billboard." The exclusion in H.3 addresses the situation where zoning lines bisect the proposed unzoned area, and although the application of this particular exclusion is not at issue on appeal, the AHTD explained at the administrative hearing that a zoned area would decrease the available space within the unzoned area in which to erect a billboard. Finally, in addressing the exclusion under H.2, that the area shall not include "land predominately used for residential purposes," appellant argues that this exclusion should function just as the other exclusions, namely by reducing the size of the unzoned area but not disqualifying the entire area from consideration.
Appellant asserts that, in determining that the proposed site was not located in a zoned or unzoned commercial area and was instead located in a predominantly residential area, the AHTD misapplied the exclusion in H.2 and mistakenly applied a "rule of thumb" analysis by comparing the number of residences to the number of commercial properties within the proposed site. Under this "rule of thumb," if there are more houses than businesses in an area, the area will be considered predominately residential. Appellant contends that this analysis demonstrates an incorrect interpretation of the Regulations and is fundamentally at odds with the plain language of § 27-74-210.
First, appellant notes that the "rule of thumb" is not actually an official rule promulgated by the legislature or the AHTD. Second, appellant contends that using this "rule" requires the H.2 exclusion to operate in a different manner than the other exclusions in Paragraph H, because application of the other exclusions does not change the nature of the entire unzoned area but instead excludes certain land from the overall area. Appellant urges that, pursuant to the H.2 exclusion, the "land predominately used for residential purposes" should be taken out of the overall area and not be considered a proper site for a billboard, but the other land within the unzoned area could still be properly considered. In addition, appellant contends that to apply the exclusion as the AHTD has done would make the definition of an unzoned commercial or industrial area more restrictive than the federal standard, which would violate § 27-74-211.
Appellant also cites the doctrine of noscitur a sociis, which holds that the meaning of an unclear word or phrase should be determined by the words immediately surrounding it. Black's Law Dictionary 1087 (8th ed.2004). Applied to statutory construction, this doctrine dictates that we interpret related statutory provisions on the assumption that they each operate in the same manner, and courts may conclude that the Legislature would not intend one subsection of a subdivision of a statute to operate in a manner "`markedly dissimilar'" from other provisions in the same list or subdivision. Grafton Partners L.P. v. Superior Court, 36 Cal.4th 944, 32 Cal.Rptr.3d 5, 116 P.3d 479 (2005) (citing People ex rel. Lungren v. Superior Court, 14 Cal.4th 294, 58 Cal. Rptr.2d 855, 926 P.2d 1042 (1996)). See also Weiss v. Maples, 369 Ark. 282, 253 S.W.3d 907 (2007) (explaining that we reconcile statutory provisions to make them consistent, harmonious, and sensible in an effort to give effect to every part).
In addition, appellant asserts that under the plain language of § 27-74-210, which defines "land predominately used for residential purposes," it is clear that the *341 AHTD should exclude only those specific residential "tracts of land" within the "unzoned commercial, business, or industrial area," and the remaining area is not rendered an impermissible site on which to erect a billboard. To instead apply the "rule of thumb" analysis clearly contradicts this statutory language. Appellant emphasizes the distinction between "area" and "land" in the statutes and regulations and argues that AHTD is incorrectly using the words interchangeably; according to appellant, pursuant to both § 27-74-210 and the H.2 exclusion, it is clear that the unzoned "area" will not include the "land" primarily used for residential purposes.
Based upon the language of Paragraph I.H.2, this court discerns two possible interpretations: one, if there is any land within the proposed area that is predominantly used for residential purposes, the area is ineligible for a billboard; and two, if the overall land within the area is predominately used for residential purposes, the area is ineligible for a billboard. Both of these interpretations are congruent with the Arkansas Highway Beautification Act's stated purpose of preserving the natural beauty of the State and promoting the reasonable, orderly, and effective display of outdoor advertising. See Ark.Code Ann. § 27-74-201(a). The former interpretation is obviously more restrictive; however, AHTD has chosen to use the latter interpretation, as evidenced by the "rule of thumb" analysis it applies to proposed sites. This court concludes that it cannot agree with appellant's alternative interpretation of the statute and corresponding regulations. Appellant's proposed interpretation ignores the meaning of Paragraph H as a whole and would operate contrary to the intent of the Highway Beautification Act, which is to preserve pastoral scenery and eliminate disharmonious advertising. See Yarbrough v. Ark. State Highway Comm'n, 260 Ark. 161, 166, 539 S.W.2d 419, 423 (1976). Pursuant to this finding, we cite with approval the decision of the court of appeals in Lamar Outdoor Advertising v. Ark. Highway & Transp. Dep't, 86 Ark.App. 279, 184 S.W.3d 461 (2004), in which the court held:
Under the terms of Regulation 1(H)(2), however, an area is precluded from being classified as unzoned commercial if it includes land predominantly used for residential purposes. Contrary to Lamar's proposed construction, the statute and regulation do not require a different analysis if the billboard is placed directly on the commercial lot as opposed to a lot in the surrounding area; it is the character of the entire "boxed" area that is to be considered, regardless of where the billboard is placed in that area.
Id. at 286, 184 S.W.3d at 466. Appellant attempts to distinguish Lamar by noting that in that case, the court was precluded from applying § 27-74-210 to the analysis because Lamar had failed to argue for its application below. However, we find that consideration of the application of § 27-74-210 does not materially affect the analysis; the purpose behind providing a definition for "land predominately used for residential purposes" was to clearly define what properties should be considered "used for residential purposes" as opposed to those with unused or abandoned residences or, as in AHTD's example, a commercial site that has an overnight guard sleeping on the property. To hold otherwise would be contrary to the intent behind the Highway Beautification Acts:
Given the purposes of the state and federal Highway Beautification Acts, it is reasonable to conclude that the Acts intended to prohibit billboards in areas where, although a commercial use exists, there also exists a predominantly residential use. To interpret the statute *342 and regulation as Lamar suggests would mean that a billboard could be placed on a single unzoned commercial lot even if that lot were closely surrounded by residential use, which would be at odds with the purpose of the Acts.
Lamar, 86 Ark.App. at 286, 184 S.W.3d at 466. In conclusion, we find that appellant has failed to demonstrate that the AHTD's interpretation of the exclusion is clearly wrong, and especially considering the great deference that is given to an agency's interpretation of its own statutes and regulations, Cave City Nursing Home, supra, we see no basis for reversal on this point.
Regarding appellant's invocation of the doctrine of noscitur a sociis, we note that while the logic of this argument is appealing, it is ultimately unconvincing. Whether the AHTD has been inconsistent in its application of the exclusions is not dispositive of the issue, and further, canons of statutory construction such as noscitur a sociis are only aids to judicial interpretation, and they will not be applied when there is no ambiguity, to defeat legislative intent and purpose, to make general words meaningless, or to reach a conclusion inconsistent with other rules of construction. United States v. Vig, 167 F.3d 443 (8th Cir.1999) (emphasis added).
There are also arguments from both parties concerning whether (1) appellant's interpretation of § 27-74-210 would be preempted by federal law, and (2) AHTD's interpretation renders the statute and regulations more restrictive than federal law, violating § 27-74-211(b). However, as we have no ruling on these issues from either the administrative agency or the circuit court, these arguments are not preserved for our review. Ark. Wildlife Fed'n v. Ark. Soil & Water Conservation Comm'n, 366 Ark. 50, 233 S.W.3d 615 (2006) (holding that to preserve arguments for appeal, including constitutional arguments, the appellant must obtain a ruling below).
For its second point on appeal, appellant asserts that, even assuming the AHTD correctly interpreted the statutes and regulations, there was no substantial evidence to support the finding that the proposed site was predominately residential. Substantial evidence is evidence that is valid, legal, and persuasive and that a reasonable mind might accept to support a conclusion and force the mind to pass beyond speculation and conjecture. Williams v. Ark. State Bd. of Physical Therapy, 353 Ark. 778, 120 S.W.3d 581 (2003). To establish an absence of substantial evidence to support the decision, the challenging party must demonstrate that the proof before the administrative tribunal was so nearly undisputed that fair-minded persons could not reach its conclusion. Id.
Appellant's entire argument on this point consists of the following: "The Marketplace contains a 7,000 square foot showroom while the four residences are of a modest size. Further, the photographs of the area do not show the residential areas predominating the Marketplace." In response, AHTD asserts that the AHTD hearing officer's findings of fact were based on testimony received at the hearing, the testimony established that the proposed site contained four residences and is otherwise forested with the exception of one business, and the hearing officer correctly found that this clearly constituted a predominantly residential use.
We find appellant's argument on this point underdeveloped and unconvincing. Where no citation to authority or convincing argument is offered, this court will decline to address the issue on appeal. Norman v. Norman, 347 Ark. 682, 66 *343 S.W.3d 635 (2002). Further, it appears that appellant raised this argument to the circuit court but failed to raise this argument at the agency level. This court will not set aside an administrative determination upon a ground not presented to the agency because to do so would deprive the agency of the opportunity to consider the matter, make its ruling, and state the reasons for its action. McQuay v. Ark. State Bd. of Architects, 337 Ark. 339, 989 S.W.2d 499 (1999). See also Teston v. Ark. State Bd. of Chiropractic Examiners, 361 Ark. 300, 206 S.W.3d 796 (2005) (holding that in order to preserve a constitutional argument in an appeal from an agency decision, the issue must be raised and developed at the administrative level). We therefore affirm the decision to deny the billboard permit.
Affirmed.
HANNAH, C.J., dissenting.
IMBER, J., not participating.
JIM HANNAH, Chief Justice, dissenting.
I respectfully dissent. The Commission is wrong in its interpretation of Arkansas Code Annotated section 27-74-210 (Repl. 1994). The location where Seiz Sign Company sought a permit to erect a billboard was in an unzoned commercial or industrial area as required by Arkansas Code Annotated section 27-74-204(a)(2) (Repl. 1994) and as defined under paragraph 1.H.2 of AHTD's Regulations. Further, the site was not in a predominately residential area as defined in Arkansas Code Annotated section 27-74-210 (Repl.1994).
In 1967, the legislature passed the Arkansas Highway Beautification Act, which provided that nothing shall prevent billboards in unzoned commercial or industrial areas. See Ark.Code Ann. § 27-74-204(a)(2). The Act allowed the Commission to define unzoned commercial or industrial area. See id. In 1972, the Commission defined the term in pertinent part as "land occupied by the regularly used building, parking lot, and storage or processing area of a commercial, business, or industrial activity, and that land within 600 feet thereof on both sides of the highway. See Regulations for Control of Outdoor Advertising, XXX-XX-XXX-X Ark.Code R. App'x 3(1)(H) (Weil 2008). The unzoned land shall not include ... (2) "Land predominantly used for residential purposes." Id. (emphasis added). In 1979, the legislature amended the Act to include section 27-74-210, which defined the term "land predominantly used for residential purposes" for the Commission.
Section 27-74-210 provides in pertinent part as follows:
(a) It is the legislative intent and purpose of this section to specifically define a certain term used in the [Regulations for Control of Outdoor Advertising] "predominantly used for residential purposes" as that term is used in enumerating exclusions in the definition of "unzoned commercial, business, or industrial areas," in order to ... enable the [C]ommission to more effectively and efficiently and uniformly administer the provisions of this chapter....
(b) "[L]and predominantly used for residential purposes" means only those tracts of land within an unzoned commercial, business, or industrial area ... which are occupied by a building regularly and principally used as a residence....
Under the plain language of section 27-74-210, the Commission may define as predominantly residential only those specific tracts of land within unzoned commercial, business, or industrial areas that contain residential structures. Because only the tracts containing residences may be predominantly *344 residential, the remaining tracts within the unzoned commercial area are open for billboard erection under the statute.
Generally, "[a]n administrative agency's interpretation of its own regulation will not be overturned unless it is clearly wrong." Nash v. Ark. Elevator Safety Board, 370 Ark. 345, 351, 259 S.W.3d 421, 425 (2007). While we defer to the Commission's factual determinations, we review issues of statutory construction de novo because it is this court's duty to decide what a statute means. Johnson v. Bonds Fertilizer, Inc., 365 Ark. 133, 135, 226 S.W.3d 753, 755 (2006). While it is true that an agency's interpretation is highly persuasive, where a statute is not ambiguous, we will not interpret it to mean anything other than what it says. Ford v. Keith, 338 Ark. 487, 494, 996 S.W.2d 20, 25 (1999). The first rule in considering the meaning and effect of a statute is to construe it just as it reads, giving the words their ordinary and usually accepted meaning in common language. Yamaha Motor Corp. v. Richard's Honda Yamaha, 344 Ark. 44, 52, 38 S.W.3d 356, 360 (2001).
The Commission's decision is wrong because, contrary to the plain meaning of the statute, the AHTD denied Seiz a billboard permit where the proposed site was found to be "predominantly residential," even though the tract had no residential structures. The decision to deny the permit was based upon the residential nature of nearby tracts of land. The plain meaning of section 27-74-210 is that only the tracts of land occupied by a residence are to be considered "land predominantly used for residential purposes." Because there are no residences located on the tract of land at issue, the AHTD and the Commission misapplied the law in finding the tract to be "land predominantly used for residential purposes." Therefore, the Commission erred when it failed to reverse AHTD's decision denying Seiz's application for a billboard permit.[1]
NOTES
[1] The desirability of billboards in an area near residences is not at issue. The court's duty is to apply the statute as it is written.
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396 A.2d 157 (1978)
Joseph CONYERS, Defendant below, Appellant,
v.
STATE of Delaware, Plaintiff below, Appellee.
Supreme Court of Delaware.
Submitted September 11, 1978.
Decided November 30, 1978.
Nancy Jane Mullen and David M. Lukoff, Asst. Public Defenders, Wilmington, for defendant below, appellant.
Eugene M. Hall, Deputy Atty. Gen., Wilmington, for plaintiff below, appellee.
Before HERRMANN, C. J., DUFFY and McNEILLY, JJ.
*158 HERRMANN, Chief Justice:
On this appeal from conviction for Second Degree Murder and Possession of a Deadly Weapon during the Commission of a Felony, the defendant raises three issues: (1) that the Trial Court improperly denied his motion to exclude statements he made during the initial on-the-scene investigation of the crime; (2) that the Trial Court erred in denying his motion for judgment of acquittal on the ground of insufficient evidence to support a conviction of Second Degree Murder; and (3) that the Trial Judge improperly admitted color photographic slides of the victim's wound taken by the medical examiner at the time of the autopsy. We find these contentions to be without merit and affirm.
I.
Police Officer King responded to a call to investigate a possible death at the apartment of the defendant, Joseph Conyers. Officer King was admitted by the defendant and the defendant's roommate, Eddie King. Eddie King told Officer King that when they returned to their apartment, they had found the victim slumped in a chair in the dining room; he also said that the victim had a history of heart trouble. Officer King examined the victim for vital signs, concluded that he was dead, and called for an ambulance.
The ambulance attendants discovered a gunshot wound. At this point, Officer King called for assistance and ordered the defendant to stay in the living room in order to preserve the scene in the dining room intact for fingerprint examination. Officer Washington, who had arrived in response to Officer King's call for assistance, commenced an inspection of the apartment. The defendant, in the nature of a protest, asked Officer King if Washington had the authority to conduct such investigation. Washington continued to examine the apartment and, in the course thereof, asked the defendant who occupied the bedroom at the rear of the apartment. The defendant seemed upset by the question but, after hesitating, answered that the bedroom was his. In the defendant's bedroom, police found shells of the same caliber as the gun that killed the victim. Although the police did not restrain the defendant at *159 the apartment (other than telling him to stay in the living room), Officer King testified that if the defendant had attempted to leave, he would have detained him.
The defendant argues that the said statements, made by him during the on-the-scene investigation, should not have been admitted in evidence because they occurred during custodial interrogation without prior Miranda[1] warnings. In Miranda, the Court defined "custodial interrogation" as questioning by law enforcement officers after a person has been taken into custody or otherwise deprived of his freedom of action in any significant way. See 86 S.Ct. at 1612.
We hold that confining the defendant in the living room to preserve the murder scene, although accompanied by an unarticulated intent of the police to detain the defendant,[2] did not significantly deprive the defendant of his freedom of action and, therefore, did not constitute "custodial interrogation" under Miranda. The statements in issue fit the exception recognized by Miranda for "general on-the-scene questioning as to facts surrounding a crime or other general questioning of citizens in the fact-finding process." See 86 S.Ct. at 1629; cf. Laury v. State, Del.Supr., 260 A.2d 907, 908 (1969).
We recognize, of course, that custodial interrogation is not limited to questioning in a police station or after a formal arrest, Orozco v. Texas, 394 U.S. 324, 89 S.Ct. 1095, 22 L.Ed.2d 311 (1969); but the circumstances surrounding the statements in issue, and the atmosphere in which they took place, show that they occurred during the initial on-the-scene investigatory stage, rather than during the accusatory or custodial stages, of this case.
There was no reversible error in the admission of the statements in question. Compare Borodine v. Douzanis, D.Mass., 455 F.Supp. 1022.
II.
The defendant argues that the denial of his motion for acquittal was improper because the evidence was insufficient to sustain a conviction for murder in the second degree. Under Delaware law, "a person is guilty of murder in the second degree when: (1) He recklessly causes the death of another person under circumstances which manifest a cruel, wicked, and depraved indifference to human life." 11 Del.C. § 635.
Since eye-witness testimony was not available and the defendant did not take the stand, the State's case was based entirely upon circumstantial evidence. The evidence demonstrated that the victim was shot through the heart with a twelve-gauge shotgun at close range (approximately ten feet), and that, when shot, the victim was in a helpless state of intoxication, as shown by blood alcohol level tests.
A twelve-gauge shotgun, believed to be the murder weapon, was found in a rear yard approximately thirty feet from the defendant's apartment, and the defendant's fingerprints were found on the weapon. A search of the defendant's bedroom produced a live twelve-gauge shell in his nightstand drawer, a box of live twelve-gauge shotgun shells in his closet, and a spent twelve-gauge shotgun shell underneath clothes on a chair. A ballistics expert testified that the spent shall "was at one time loaded into and extracted from this weapon" [the shotgun found in the yard bearing Conyers' fingerprints]. The expert also examined the contents of one of the shells from the box of shells found in defendant's closet and compared them with the pellets and wadding recovered from the victim's body, and concluded that the shell used in the *160 shooting could have come from the same box. Finally, a witness who visited the defendant in prison testified that the defendant told her "that he shot him [the victim], but he wasn't intending to kill him."
The defendant recognizes that under Delaware law a malicious intent to kill can be inferred from the use of a deadly weapon. Bantum v. State, Del.Supr., 85 A.2d 741, 751 (1952); Powell v. State, Del.Supr., 86 A.2d 371, 374 (1952); and Hallowell v. State, Del.Supr., 298 A.2d 330 (1972), cert. denied 411 U.S. 951, 93 S.Ct. 1940, 36 L.Ed.2d 413 (1973). However, the defendant attempts to distinguish those cases on the ground that there was evidence therein to indicate the intentional use of the deadly weapon, whereas there was no evidence in the instant case to establish such intent. The argument is refuted by the testimony of the friend who visited the defendant in prison. Also, the jury could have inferred that the shotgun was hidden by the defendant in the yard an action inconsistent with an accidental or unintentional shooting of the victim at close range.
In ruling upon a motion for acquittal, "the evidence, together with all legitimate inferences therefrom, must be considered from the point of view most favorable to the State.... It is only where the State has offered insufficient evidence to sustain a verdict of guilt that the motion will be granted." State v. Biter, Del.Super., 119 A.2d 894 (1955); cf. Edwards v. State, Del.Supr., 285 A.2d 805 (1971).
The evidence permits an inference that the defendant intended to fire the shotgun at the victim. The jury was warranted in finding that firing a shotgun through the heart of a helpless, inebriated victim at close range manifested a "cruel, wicked, and depraved indifference to human life." Given the evidence in this case together with all permissible inferences therefrom, there was no reversible error in denying the defendant's motion for acquittal on the charge of second degree murder.
III.
After two black and white photographs were introduced into evidence, depicting the victim and his wound as found at the murder scene, the Court admitted into evidence, over the defendant's objection, color slides depicting the wound taken after the body had been moved to the office of the medical examiner. While there was no blood shown in the photographs taken at the murder scene, moving the body to the medical examiner's office caused external bleeding which was colorful on the photographs taken there. The defendant objected to the latter photographs as being cumulative, inflammatory, and prejudicial.
A Trial Judge has broad discretion to admit or reject photographs depicting a victim's injuries, and "absent abuse of discretion, the ruling will be sustained on appeal." Shantz v. State, Del.Supr., 344 A.2d 245 (1975). The governing rule is that where photographs are material and have probative value they may be admitted in evidence, if otherwise admissible, unless their prejudicial effect outweighs their evidentiary importance.
In the present case, the color slides were probative of the nature of the wound: the "cookie-cutter" effect depicted in the color photographs, not apparent in the black and white photographs, demonstrated the close range of the shot, which was material to the issue of whether the circumstances manifested a cruel, wicked, and depraved indifference to human life. Compare Commonwealth v. Sullivan, Pa.Supr., 371 A.2d 468, 481 (1977) and Commonwealth v. Shoatz, 469 Pa. 545, 366 A.2d 1216, 1224 (1976). The slides were not cumulative in that they gave a more detailed impression of the wounds. The defendant argues that such probative effect was negated by the prejudicial effect of the blood shown in the color slides. However, the reason for the appearance of the blood (moving the body) was explained to the jury. Under these circumstances, we conclude that there was no abuse of discretion in the admission of the slides.
AFFIRMED.
NOTES
[1] Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966).
[2] For cases holding that an unarticulated intent to detain a defendant does not amount to custodial interrogation, see Lowe v. United States, 9th Cir., 407 F.2d 1391 (1969); People v. King, 273 Cal.App.2d 418, 78 Cal.Rptr. 146 (1969); and People v. Allen, 28 A.D.2d 724, 281 N.Y. S.2d 602 (1967). See State v. Roach, La.Supr., 322 So. 222 (1975), wherein the Court held that seating the defendant in his living room while officer searched his apartment for marijuana was insufficient restraint to constitute police questioning as custodial interrogation.
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12 N.Y.3d 926 (2009)
PEOPLE
v.
LYNCH.
Court of Appeals of New York.
July 6, 2009.
Application in criminal case for leave to appeal denied. (Lippman, Ch.J.).
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NO. 07-03-0544-CR
IN THE COURT OF APPEALS
FOR THE SEVENTH DISTRICT OF TEXAS
AT AMARILLO
PANEL C
JULY 13, 2006
______________________________
RONALD THACKER HARGESHEIMER,
Appellant
v.
THE STATE OF TEXAS,
Appellee
_________________________________
FROM THE 108TH DISTRICT COURT OF POTTER COUNTY;
NO. 40,482-E; HON. ABE LOPEZ, PRESIDING
_______________________________
Memorandum Opinion
_______________________________
Before QUINN, C.J., and REAVIS and HANCOCK, JJ.
Via two issues, appellant (Ronald Thacker Hargesheimer) contends that 1) he was
unable to file a motion for new trial to preserve error because the trial court certified that
he had no right to appeal and 2) the record fails to support his conviction for two counts of
indecency with a child. Having reviewed appellant's issues and the record before us, we
affirm in part and modify the judgment in part.
Issue One - Inability to File a Motion for New Trial
In his first issue, appellant contends that the trial court's initial certification that he
had no right to appeal prevented him from filing a motion for new trial. We disagree.
Appellant contends that the trial court failed to afford him a bifurcated trial in that it
found him guilty and then sentenced him without conducting a separate proceeding on
punishment. Specifically, appellant contends that "the trial court heard the appellant's
pleas of true to each of the alleged violations . . . and then immediately proceeded to
consider evidence on the issue of punishment - without first determining guilt."
Furthermore, appellant argues that "[i]t was not until the conclusion of the proceeding that
the trial court both found the Appellant guilty of the underlying felony and sentenced him
to 16 years imprisonment." (Emphasis in original). However, appellant admits that he
failed to object at the time of sentencing to this irregularity; therefore, the only way to
preserve his complaint was through a motion for new trial. But because the trial court's
certification, according to appellant, "'advised'" him that "he had no further right to contest
the judgment [and] his sentence was to be served," he allegedly neglected to move for a
new trial.
The trial court's certification was and is of no import viz his right to file a motion for
new trial. The latter right is absolute, McIntire v. State, 698 S.W.2d 652, 660 (Tex. Crim.
App. 1985) (stating that the right to file and have heard a motion for new trial is deemed
absolute provided the right is asserted within the time period specified by law), and not
dependent upon perfecting an appeal. Nor is the converse true; the right to perfect an
appeal is not dependent upon the right to move for a new trial. The two are distinct
procedures. Indeed, a new trial may be granted irrespective of whether a certification or
notice of appeal is filed. See Taylor v. State, 163 S.W.3d 277, 282 (Tex. App.-Austin
2005, pet. dism'd) (holding that 25.2(g) of the Rules of Appellate Procedure did not bar the
trial court's consideration of a timely motion for new trial). Therefore, we overrule
appellant's first issue.
Issue Two - Guilty of One Count of Indecency with a Child
In his second issue, appellant contends that the trial court erred by finding him guilty
of two counts of indecency with a child when he only plead guilty to one. We sustain the
issue because the State concedes the matter. Therefore, we vacate appellant's conviction
upon count two (indecency with a child). See Lopez v. State, 80 S.W.3d 624, 628-29 (Tex.
App. -Fort Worth 2002), aff'd, 108 S.W.3d 293 (Tex. Crim. App. 2003) (holding, in cases
where a conviction is vacated, that when the two offenses contain identical punishments
the court upholds the conviction listed first in the trial court's judgment).
Having sustained appellant's second issue and overruled his first, we vacate
appellant's conviction under count two for the offense of indecency with a child, modify the
judgment to so reflect, and affirm the remainder of the judgment.
Per Curiam
Do not publish.
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682 S.W.2d 670 (1984)
AETNA CASUALTY & SURETY COMPANY, Relator,
v.
Honorable Ed J. HARRIS, et al., Respondents.
No. 01-84-0652-CV.
Court of Appeals of Texas, Houston (1st Dist.).
November 29, 1984.
Suzanne Underwood, Edward J. Hennessy & Associates, Edward J. Hennessy & Associates, Houston, for relator.
Leonard C. Kahn, Kahn & Maierson, P.C., Houston, for respondent.
*671 Before WARREN, COHEN and LEVY, JJ.
OPINION
LEVY, Justice.
Relator seeks a writ of mandamus compelling the respondent trial judge, Hon. Ed J. Harris, to vacate and set aside his order of August 10, 1984, which reinstated the cause of action. Relator also seeks the writ of mandamus to compel Judge Harris to reinstate the order dated February 24, 1984, dismissing the cause for want of prosecution.
This action grows out of a lawsuit filed in 1981 by relator styled The Aetna Casualty & Surety Company v. Frank (Franklyn) Tarver, Cause No. 122,177, in the 10th District Court of Galveston County, in which relator appealed from a final ruling of the Industrial Accident Board. On February 24, 1984, the case was dismissed for want of prosecution. However, Tarver's attorney did not receive actual notice of the dismissal until April 16, 1984. Tarver timely filed a motion to reinstate, but before the court took action, he filed a motion to withdraw the motion to reinstate, and that motion was granted. Thereafter, on July 17, 1984, Tarver filed a second motion to reinstate. On August 10, 1984, this second motion to reinstate was granted. It is this last action that is the basis of the relator's complaint.
Tex.R.Civ.P. 165a controls the trial court's reinstatement of a case following dismissal for want of prosecution. Gilbert v. Huber, Hunt, Nichols, Inc., 672 S.W.2d 9 (Tex.App.San Antonio), writ ref'd n.r.e., 671 S.W.2d 869 (Tex.1984) (per curiam). Rule 165a(2) provides that a motion to reinstate must be filed within 30 days after the order of dismissal is signed or within the period provided by rule 306a. See also Clark & Company v. Giles, 639 S.W.2d 449 (Tex.1982) (interpretation of similar timetable under rule 329b). Further, if a party adversely affected by an appealable order has not received notice of its signing within 20 days thereafter, then the period for filing begins on the date that the party received notice or acquired actual notice, whichever occurs first. Rule 306a(4). Finally, rule 165a further provides that in the event a motion for reinstatement is not decided by signed, written order within 75 days after the dismissal is signed, or within such other time allowed by rule 306a, the motion is overruled by operation of law.
Applying these rules to the facts of the case, the first motion to reinstate was timely filed on April 23, 1984, but the court never ruled on this motion. Calculating the 75 days from April 16, 1984, when Tarver's attorney received notice of the court's dismissal, the motion was overruled by operation of law on June 30, 1984. Although the court had plenary power for 30 days thereafter to reinstate the case, the last possible day the court could have reinstated the case was July 30, 1984. Thus the trial court lacked jurisdiction on August 10, 1984, to grant the second motion to reinstate.
This court is required to issue a writ of mandamus to compel a trial judge to refrain from acting outside the court's jurisdiction. E.g., Munson Engineering, Inc. v. Farris, 666 S.W.2d 355 (Tex.App. Houston [14th Dist.] 1984, no writ). Accordingly, relator's petition for writ of mandamus is conditionally granted to compel the trial judge to set aside his order of August 10, 1984, granting Tarver's second motion to reinstate, and to reinstate his order of dismissal dated February 24, 1984. The writ of mandamus will issue only if Judge Harris does not comply with this order.
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FILED
United States Court of Appeals
UNITED STATES COURT OF APPEALS Tenth Circuit
FOR THE TENTH CIRCUIT October 30, 2013
Elisabeth A. Shumaker
Clerk of Court
WULFRANO PORTILLO-CASTRO,
Petitioner,
v. No. 13-9539
(Petition for Review)
ERIC H. HOLDER, JR., United States
Attorney General,
Respondent.
ORDER AND JUDGMENT*
Before KELLY, TYMKOVICH, and PHILLIPS, Circuit Judges.
Wulfrano Portillo-Castro petitions for review of an order by the Board of
Immigration Appeals (BIA) denying his motion to reconsider the BIA’s decision
affirming the denial of his request for cancellation of removal. Exercising
jurisdiction pursuant to 8 U.S.C. § 1252, we affirm.
*
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)(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.
I.
Mr. Portillo-Castro, a native and citizen of Mexico, illegally entered this
country in 1992. In June 2007, the Department of Homeland Security (DHS)
initiated removal proceedings against him, alleging that he was present in the
United States without being admitted or paroled. Mr. Portillo-Castro admitted the
allegations and conceded removability. He then filed an application for cancellation
of removal. An alien may be eligible for cancellation of removal if he meets certain
requirements, including that he has not been convicted of a crime involving moral
turpitude (CIMT). See 8 U.S.C. § 1229b(b)(1)(C). The government asserted that
Mr. Portillo-Castro was ineligible for cancellation of removal because he had a 2003
conviction for domestic violence and he had failed to show that it was not a CIMT.
The immigration judge (IJ) agreed with the government, denied the application, and
ordered Mr. Portillo-Castro removed from the United States.
Mr. Portillo-Castro appealed the IJ’s decision. The BIA agreed with the IJ’s
determination and dismissed the appeal. Mr. Portillo-Castro did not petition for
review of the BIA’s decision; instead, he hired new counsel and filed a motion to
reconsider. The BIA denied the motion and this petition for review followed.
II.
We review for abuse of discretion the BIA’s denial of a motion to reconsider.
See Belay-Gebru v. INS, 327 F.3d 998, 1000 n.5 (10th Cir. 2003).
-2-
A.
In his motion to reconsider, Mr. Portillo-Castro argued that he was prejudiced
in his proceedings before the IJ and BIA because he was represented by incompetent
counsel, as evidenced by his first attorney’s disbarment by the Oklahoma Supreme
Court. He sought a remand to the IJ for a new hearing on his application for
cancellation of removal with his new attorney. He did not offer any specific
information about his first attorney’s performance other than to assert that his
application for cancellation of removal “on its face, is a tribute to [counsel’s]
incompetence.” Admin. R. at 16. He also asserted that the requirements in Matter of
Lozada, 19 I. & N. Dec. 637 (BIA 1988), for bringing claims of ineffective assistance
of counsel, were “not applicable as previous counsel was disbarred while the
underlying appeal was pending.” Admin. R. at 16.
Under Lozada, “[a] motion based upon a claim of ineffective assistance of
counsel should be supported by an affidavit of the allegedly aggrieved respondent
attesting to the relevant facts.” 19 I. & N. Dec. at 639. Former counsel must be
informed of the allegations and allowed the opportunity to respond before the
allegations are presented to the BIA. Id. And, “the motion should reflect whether a
complaint has been filed with appropriate disciplinary authorities regarding such
representation, and if not, why not.” Id.
-3-
In its order denying the motion to reconsider on this issue, the BIA explained
that:
[Counsel’s] disbarment alone does not cure [Mr. Portillo-Castro’s]
unexplained failure to follow any of the procedures for making a timely
ineffective assistance of counsel claim as set forth in Matter of Lozada,
19 I&N Dec. 637 (BIA 1988). Evidence that [his] former counsel was
disciplined does not prove that [he] was prejudiced by the actions of his
counsel in this case.
Admin. R. at 3. The BIA further explained that Mr. Portillo-Castro’s “claim of
ineffective assistance of counsel lacks the necessary details we need to evaluate his
argument,” and also noted that he had not offered any legal authority to support his
position that his attorney’s disbarment rendered the Lozada requirements inapplicable
to his case. Id. The BIA further noted that the “Fifth Circuit has rejected a ‘flexible’
approach to the Lozada requirements argued for by [Mr. Portillo-Castro].” Id. The
BIA declined to reconsider its decision or remand the case to the IJ, explaining that
Mr. Portillo-Castro “ha[d] not presented any evidence to show that his prior counsel
incompetently represented him, that his prior counsel’s performance adversely
affected the outcome of his removal hearing, or that he was denied an opportunity to
fully present his case.” Id. at 4.
On appeal, Mr. Portillo-Castro asserts that he was denied a full and fair
hearing on his application for cancellation of removal because he was represented by
ineffective counsel. He asserts that his conviction was not a CIMT under the relevant
Oklahoma statutes covering simple non-aggravated assault and misdemeanor
domestic assault and battery, which involve only a mere touching. He contends that
-4-
“but for the failure of [his] counsel to provide the required documents to the
Immigration Court, a full, fair, and meaningful examination of all the appropriate
evidence would have been conducted and the result would have been different.” Pet.
Br. at 17. We may not consider this argument, however, because it was not presented
to the BIA. See Garcia-Carbajal v. Holder, 625 F.3d 1233, 1236-37 (10th Cir. 2010)
(explaining that alien must exhaust his administrative remedies before this court may
entertain his argument). As the BIA explained in its denial order, Mr. Portillo-Castro
argued that his attorney’s disbarment alone demonstrated that he received ineffective
assistance of counsel. In his motion to reconsider, he did not attempt to explain, as
he does now on appeal, how his counsel’s deficient performance prejudiced him, and
therefore the BIA did not have the opportunity to consider that argument. “[A]n
alien must present the same specific legal theory to the BIA before he or she may
advance it in [this] court.” Id. at 1237; see also Torres de la Cruz v. Maurer, 483
F.3d 1013, 1018 (10th Cir. 2007) (holding that petitioner’s general assertions in
motion to reopen were not sufficient to exhaust “specific issue” for which he sought
review from this court when it had not been presented to the BIA for consideration).
We therefore lack authority to entertain Mr. Portillo-Castro’s new argument
regarding his counsel’s deficient performance and related prejudice.
Mr. Portillo-Castro next contends that the BIA should not have required strict
compliance with Lozada because the BIA applied Fifth Circuit law when it should
have applied Tenth Circuit law. The government concedes that the BIA should have
-5-
applied Tenth Circuit law,1 but it asserts that any error is harmless because the result
in this case would be no different if the case were remanded back to the BIA. See
Nazaraghaie v. INS, 102 F.3d 460 (10th Cir. 1996) (applying harmless error analysis
in immigration context).
Although we have yet to decide whether to require strict compliance with
Lozada, we have concluded that there was no abuse of discretion in the BIA’s denial
of a motion to reopen where the petitioner alleged ineffective assistance of counsel
but failed to comply with any of the Lozada requirements. See Tang v. Ashcroft,
354 F.3d 1192, 1196-97 (10th Cir. 2003). The holding in Tang controls the result in
this case. Mr. Portillo-Castro, like the petitioner in Tang, made no attempt to comply
with any of the Lozada requirements. Instead, Mr. Portillo-Castro claimed—without
citation to any authority—that Lozada does not apply when an attorney is disbarred.
Accordingly, if the case were remanded to the BIA to apply Tenth Circuit law, it
would reach the same result.
Mr. Portillo-Castro also contends that he could not strictly comply with the
Lozada requirement to file a bar complaint because his attorney had already been
1
The proceedings before the IJ occurred in Oklahoma City, Oklahoma, within
the jurisdiction of the Tenth Circuit. But, according to the government, the
Administrative Control Court for the immigration court in Oklahoma City is located
in Dallas, Texas. As a result, the caption to the IJ’s decision states “Dallas
Immigration Court.” See Admin. R. at 222. As the government explains, “it appears
that the Board may have cited Fifth Circuit law under the mistaken belief that
immigration proceedings were conducted in Texas, which is within the jurisdiction of
the Fifth Circuit.” Resp. Br. at 18 n.6.
-6-
disbarred. His attorney’s disbarment, however, does not excuse his non-compliance
with the Lozada requirements. Mr. Portillo-Castro does not explain how he was
prevented from complying with the first requirement to submit an affidavit with
the relevant facts, or how he was prevented from complying with the second
requirement to notify his counsel of the allegations against him and give him an
opportunity to respond. See Tang, 354 F.3d at 1196 (outlining Lozada’s
requirements). Moreover, Lozada does not require the filing of a bar complaint in all
situations as Mr. Portillo-Castro appears to believe; instead, the Lozada motion
“should reflect whether a complaint has been filed with appropriate disciplinary
authorities regarding [the deficient] representation, and if not, why not.” Id. (internal
quotation marks omitted) (emphasis added). Mr. Portillo-Castro could easily have
fulfilled the third Lozada requirement by indicating that he did not file a complaint
with the Oklahoma Supreme Court because his attorney had already been disbarred.
Under these circumstances, we see no abuse of discretion in the BIA’s decision to
deny the motion to reconsider on this issue.
B.
Mr. Portillo-Castro next contends that the BIA erred in denying his request to
reconsider the agency’s determination that he has a conviction for a CIMT. In his
motion to reconsider, Mr. Portillo-Castro asserted that the IJ and BIA erroneously
concluded that he had a CIMT conviction when there is an absence of documents
related to his conviction in the administrative record. In denying the motion to
-7-
reconsider on this issue, the BIA found that Mr. Portillo-Castro was raising the same
or similar arguments that were raised in his previous appellate brief. The BIA
reaffirmed the IJ’s conclusion that Mr. Portillo-Castro “did not meet his burden to
prove that his Oklahoma criminal conviction for domestic assault and battery was not
a CIMT.” Admin. R. at 4. On appeal, Mr. Portillo-Castro continues to argue that he
does not have a CIMT conviction, speculating that he was convicted under Oklahoma
statutes for either simple assault or misdemeanor domestic assault and battery that
only involve an act of mere touching.
An alien who has conceded removability bears “the burden of establishing that
he or she is eligible for any requested benefit or privilege and that it should be
granted in the exercise of discretion.” Garcia v. Holder, 584 F.3d 1288, 1289
(10th Cir. 2009) (internal quotation marks omitted). Mr. Portillo-Castro admitted
that he was arrested in 2003 for domestic assault and battery for hitting his wife, and
there is a document from the Tulsa County Sheriff’s Office confirming that
information. He also submitted a letter confirming his attendance at 24 sessions in
the counseling program at Domestic Violence Intervention Services. He failed,
however, to submit documentary evidence related to his conviction, including the
specific statute of conviction and any sentencing information.2 We have previously
2
Although Mr. Portillo-Castro argues on appeal that his first attorney was
ineffective for failing to submit evidence related to his conviction, his current
attorney did not submit any evidence in the motion to reconsider related to his
conviction or explain why the documents could not be obtained.
-8-
held that where the record is inconclusive as to whether an alien committed a CIMT,
the alien has failed to demonstrate eligibility for cancellation of removal. See id. at
1290 (“Because it is unclear from [petitioner’s] record of conviction whether he
committed a CIMT, we conclude he has not proven eligibility for cancellation or
removal . . . .”). Accordingly, we see no abuse of discretion in the BIA’s decision to
deny the motion to reconsider on this issue.
III.
For the foregoing reasons, we deny the petition for review.
Entered for the Court
Paul J. Kelly, Jr.
Circuit Judge
-9-
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354 F.2d 31
Trent BOYES, Appellant,v.UNITED STATES of America, Appellee.
No. 21885.
United States Court of Appeals Fifth Circuit.
December 10, 1965.
Lee A. Chagra, El Paso, Tex., for appellant.
Fred Morton, Mario J. Martinez, Asst. U. S. Attys., El Paso, Tex., Ernest Morgan, U. S. Atty., San Antonio, Tex., Jamie C. Boyd, Asst. U. S. Atty., El Paso, Tex., for appellee.
Before RIVES, WISDOM and GEWIN, Circuit Judges.
PER CURIAM.
1
This is an appeal from the denial of a motion to vacate sentence, 28 U.S.C.A. § 2255, by the United States District Court for the Western District of Texas. Appellant was arrested in 1955 while in the Western District of Texas and held there for alleged bank robberies in Missouri, Ohio and Oklahoma in violation of 18 U.S.C.A. § 2113(a) and (d). He pleaded guilty, waived venue, requested a transfer of the cases and consented to be sentenced by the District Court for the Western District of Texas pursuant to Rule 20 F.R.Crim.P. He also waived his rights to (1) preliminary hearing; (2) counsel; and (3) indictment by a Grand Jury (electing to proceed on informations pending against him in the other Districts). The District Court accepted his plea of guilty and sentenced him to three 25 year terms of imprisonment, two of which are running concurrently.
2
Appellant now claims (1) the District Court had no jurisdiction to accept his plea of guilty and to sentence him because Rule 20 F.R.Crim.P. violates Article III, Section 2, Clause 3 of the Constitution;1 (2) he was denied his right to appeal by the failure of the District Court to inform him of such right as required by Rule 37(a) (2) F.R.Crim.P.; and (3) his several waivers were invalid because he was never fully advised of his rights.
3
Article III, Section 2, Clause 3, providing for trial in the state in which the crime was committed, is a venue provision, and rights created thereby may be waived. Earnest v. United States (6 Cir. 1952) 198 F.2d 561; United States v. Gallagher (3 Cir. 1950) 183 F.2d 342, cert. den. 340 U.S. 913, 71 S.Ct. 283, 95 L.Ed. 659; Levine v. United States (8 Cir. 1950) 182 F.2d 556, cert. den. 340 U.S. 921, 71 S.Ct. 352, 95 L.Ed. 665; Hilderbrand v. United States (10 Cir. 1962) 304 F.2d 716.
4
The pertinent provisions of Rule 37(a) (2) state, "* * * [w]hen a court after trial imposes sentence upon a defendant not represented by counsel, the defendant shall be advised of his right to appeal and if he so requests, the clerk shall prepare and file forthwith a notice of appeal on behalf of the defendant." (emphasis added) Appellant here pleaded guilty and did not have a trial; therefore, Rule 37(a) (2) does not require the District Court to inform him of his right to appeal. The rule does not apply because the sentence was not imposed after trial, but after a plea of guilty which was entered voluntarily, with full understanding, and intelligent waiver following repeated explanations of all rights involved by the District Attorney and the trial court. See Jackson v. United States (4 Cir. 1956) 231 F.2d 653; Bankey v. Sanford, 74 F.Supp. 756, aff'd. 165 F.2d 788 (5 Cir. 1947), cert. den. 333 U.S. 847, 68 S.Ct. 649, 92 L.Ed. 1130; Bouvier's Law Dictionary, Unabridged (Rawle's Third Revision) Vol. 2, p. 3320.
5
A careful reading of the record makes it abundantly clear that appellant was well advised of his rights and the consequences of waiving them. He was fully aware of what he was doing and was not denied due process by anything which transpired. A full and complete plenary hearing at which petitioner was present was conducted and the District Court entered findings of fact and conclusions of law with which we fully agree.2
6
The judgment of the District Court is affirmed.
Notes:
1
"Clause 3. The Trial of all Crimes, except in Cases of Impeachment, shall be by Jury; and such Trial shall be held in the State where the said Crimes shall have been committed; but when not committed within any State, the Trial shall be at such Place or Places as the Congress may by Law have directed."
2
See memorandum opinion in Boyes v. United States, 372 U.S. 242, 10 L.Ed.2d 409, wherein the Supreme Court by per curiam order vacated judgment of this court, granted certiorari, leave to proceed in forma pauperis, and remanded the case to the district court for further consideration in the light of Sanders v. United States, 371 U.S. 1, 83 S.Ct. 1068, 10 L.Ed.2d 1048
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457 F.2d 761
UNITED STATES of America, Plaintiff-Appellee,v.Roy ARANDA and Virginia Varela de Aranda, Defendants-Appellants.
No. 71-2573.
United States Court of Appeals,Ninth Circuit.
March 15, 1972.
George F. Senner, Jr., of Cavness, DeRose, Senner & Rood, Phoenix, Ariz., for defendants-appellants.
Harry Steward, U. S. Atty., Thomas M. Coffin, Asst. U. S. Atty., San Diego, Cal., for plaintiff-appellee.
Before HAMLEY, DUNIWAY and HUFSTEDLER, Circuit Judges.
PER CURIAM:
1
Roy and Virginia Aranda, husband and wife, appeal from judgments of conviction on two counts of an indictment charging them jointly (Count One) with smuggling marihuana into the United States, and (Count Two) with receiving, concealing and facilitating the transportation and concealment of marihuana, illegally imported, knowing that it had been so imported, both violations of former 21 U.S.C. Sec. 176a. We affirm.
2
There was but one occurrence. The Arandas, using the name Gonzalez, purchased a Buick Riviera car in Yuma, Arizona, on July 17, 1970. They had it registered in the name of Armanda Silver. It was then in good condition. In the early morning hours of July 23, the car was driven north on Interstate Highway 5, just north of Oceanside, California. Roy was driving; Virginia and a baby were with him. The car was stopped at an Immigration checkpoint some 65 miles north of the Mexican border and directed off the highway because it was "hanging low in the back." Roy pulled off the road, but then almost immediately drove the car back onto Interstate 5 at a high rate of speed. Two California highway patrolmen pursued it at speeds up to 140 miles per hour and finally stopped it. Almost immediately, two border patrolmen, who had also given chase, arrived. The highway patrolmen by then had the Arandas out of the car. One of the border patrolmen handcuffed Roy. The other, and one of the state officers, went to the car. They detected a strong odor of marihuana. They also found that the trunk could not be opened because the lock was missing. One of the officers drove the car off the freeway to a gasoline service station about two blocks away. There, a screwdriver was borrowed and used to release the catch on the trunk. Inside the trunk was a large quantity of marihuana.
3
1. Search and seizure.
4
The search of the car was valid. The trunk could have been opened, without probable cause, at the checkpoint. United States v. Foerster, 9 Cir., 1972, 455 F.2d 981. The Arandas' flight added probable cause. Duprez v. United States, 9 Cir., 1970, 435 F.2d 1276. The argument that if the officers had a right to search on the shoulder of the freeway, where it was stopped, they lost that right by moving it off the highway and a distance of two blocks to get a tool with which to make the search is frivolous. The officers had no duty to endanger the lives of all concerned by remaining on the shoulder of a high speed, heavily travelled freeway. They had every right to move the car to a nearby place where the needed tool could be obtained.
5
2. Sufficiency of the evidence.
6
Sentences of both defendants were concurrent. We therefore consider the evidence only in relation to Count Two. As to Roy, it was obviously sufficient. As to Virginia, the case was closer, but we find the evidence sufficient. She and Roy bought the car together, using false names and registering it to someone else. There was a strong odor of marihuana in the car. It was driven with the windows closed. The marihuana was of the type, and packaged in the manner, that usually comes from Mexico. There were Mexican coins in the car. Virginia and Roy each separately told the officers a false story about how they obtained the car, and the two stories were similar. We conclude that the court could find, beyond a reasonable doubt, that Virginia was engaged in a joint venture with Roy, that the marihuana was of Mexican origin, and that Virginia knew it. Eason v. United States, 9 Cir., 1960, 281 F.2d 818, 821, cf. Bettis v. United States, 9 Cir., 1969, 408 F.2d 563, 568; United States v. Nelson, 9 Cir., 1969, 419 F.2d 1237; Corey v. United States, 9 Cir., 1962, 305 F.2d 232, 239.
7
Affirmed.
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Citation Nr: 1450459
Decision Date: 11/14/14 Archive Date: 11/26/14
DOCKET NO. 08-22 877A ) DATE
)
)
On appeal from the
Department of Veterans Affairs Education Center in Atlanta, Georgia
THE ISSUE
Whether a refund in the amount of $2,493.74 under the Veterans' Education Assistance Program (VEAP) may be reissued to the Veteran.
(The issue of entitlement to service connection for diabetes mellitus is the subject of a separate Board of Veterans' Appeals decision issued this same date.)
REPRESENTATION
Appellant represented by: Disabled American Veterans
ATTORNEY FOR THE BOARD
Robert E. P. Jones, Counsel
INTRODUCTION
The Veteran served on active duty from February 1981 to May 1985.
This matter is before the Board of Veterans' Appeals (Board) from a determination by the Department of Veterans Affairs (VA) Education Center in Atlanta, Georgia.
The Board recognizes that on an August 2008 VA Form 9 the Veteran requested a hearing before a Veterans Law Judge at the regional office. However, the Veteran's claim is not currently in appellate status and thus at this time a Board hearing may not be provided.
The case is REMANDED to the Agency of Original Jurisdiction (AOJ). VA will notify the Veteran if further action is required.
REMAND
In 2008, the Veteran informed VA that she had visited the VA website to get information for filing a disability compensation application. She stated that while researching on the VA website she found out that she met the criteria for a refund of her VEAP contributions. When she found this out she submitted a request for a refund.
VA then informed the Veteran that VA had issued a refund of the Veteran's VEAP contributions in the amount of $2,493.74 on February 17, 1995. The Veteran asserts that she was not aware that a refund check had automatically been mailed to her at that time. She states that she never received such check. She requested the address that it was sent to, and when this information was provided to her, she stated that she had only resided at that address for a few months.
VA informed the Veteran that the check could not be traced because it was now more than five years old. The Veteran has disagreed with the VA's denial of her request that she be reissued a refund of her VEAP contributions.
Although the file contains a VA Form 9 submitted by the Veteran, this does not act to perfect the Veteran's claim. The Board considers this document to be a notice of disagreement with the denial of the Veteran's claim for reissuance of the VEAP refund. The RO has not issued a statement of the case (SOC) regarding the denial of the Veteran's request for VA to reissue her a VEAP refund. Under this circumstance, the Board must remand this issue to the AOJ for the issuance of a statement of the case. See Manlincon v. West, 12 Vet. App. 238, 240-41 (1999).
Accordingly, the case is REMANDED for the following action:
Provide the Veteran a statement of the case as to the denial of her request for reissuance of a VEAP refund. The Veteran should be informed that she must file a timely and adequate substantive appeal in order to perfect an appeal of this issue to the Board. See 38 C.F.R. §§ 20.200, 20.202, and 20.302(b) (2014). If a timely substantive appeal is not filed, the claim should not be certified to the Board.
The appellant has the right to submit additional evidence and argument on the matter the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999).
This claim must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board of Veterans' Appeals or by the United States Court of Appeals for Veterans Claims for additional development or other appropriate action must be handled in an expeditious manner. See 38 U.S.C.A. §§ 5109B, 7112 (West Supp. 2013).
_________________________________________________
MICHAEL A. PAPPAS
Veterans Law Judge, Board of Veterans' Appeals
Under 38 U.S.C.A. § 7252 (West 2002), only a decision of the Board of Veterans' Appeals is appealable to the United States Court of Appeals for Veterans Claims. This remand is in the nature of a preliminary order and does not constitute a decision of the Board on the merits of your appeal. 38 C.F.R. § 20.1100(b) (2013).
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NO. 07-02-0291-CR
07-02-0292-CR
07-02-0293-CR
IN THE COURT OF APPEALS
FOR THE SEVENTH DISTRICT OF TEXAS
AT AMARILLO
PANEL C
NOVEMBER 25, 2002
______________________________
JOHN STEVEN MCLAIN, APPELLANT
V.
THE STATE OF TEXAS, APPELLEE
_________________________________
FROM THE CRIMINAL JUDICIAL DISTRICT COURT OF JEFFERSON COUNTY;
NO. 84833; 84835; 84837; HONORABLE LARRY GIST, JUDGE
_______________________________
Before QUINN and REAVIS and JOHNSON, JJ.
Appellant John Steven McLain appeals from convictions in the Criminal District Court of Jefferson County in trial court causes numbered 84833, 84835 and 84837. We dismiss the three appeals for want of jurisdiction.
Appellant filed a general Notice of Appeal from his plea-bargained judgment of conviction in Cause No. 84830 in the Criminal
District Court of Jefferson County for possession of a controlled substance. The appeal in cause No. 84830 is the subject of our appellate cause No. 07-02-0290-CR. The appeal was dismissed for lack of jurisdiction. Such appeal is a companion case to the instant appeals.
Appellant gave Notice of Appeal in causes Nos. 84833 (delivery of a controlled substance, judgment dated May 16, 2002), 84835 (delivery of a controlled substance, judgment dated May 16, 2002), and 84837 (delivery of marihuana, judgment dated May 1, 2002) in the Criminal
District Court of Jefferson County via the same document by which he gave notice of appeal in our cause No. 07-02-0290-CR. Sentence was imposed in all causes on May 13, 2002.
In his original Notice of Appeal appellant did not allege that (1) his appeal was based on a jurisdictional defect, (2) the substance of the appeal was raised by written motion ruled on before trial or (3) the trial court granted permission to appeal.
See
Tex. R. App. P
. 25.2(b)(3).
(footnote: 1)
On November 12, 2002, appellant filed Amended Notices of Appeal alleging that the trial court gave permission for the appeals.
A threshold question in any case is whether the court has jurisdiction over the pending controversy.
See
State v. Roberts
, 940 S.W.2d 655, 657 (Tex.Crim.App. 1996). As noted in our opinion in appellant’s companion case, our cause No. 07-02-0290-CR, appellant’s original Notice of Appeal did not contain one of the three allegations necessary to invoke our appellate jurisdiction over an appeal from his plea-bargained convictions.
See
TRAP 25.2(b)(3);
White v. State
, 61 S.W.3d 424, 427-28 (Tex.Crim.App. 2001)
.
Accordingly, our jurisdiction was not invoked by the original Notice. The out-of-time amended Notices are ineffective to invoke our jurisdiction.
See
State v. Riewe
, 13 S.W.3d 408, 413-14 (Tex.Crim.App. 2000).
We dismiss the appeals for want of jurisdiction.
Phil Johnson
Justice
Do not publish.
FOOTNOTES
1:A rule of appellate procedure will be referred to as “TRAP __” hereafter.
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122 B.R. 317 (1990)
In re Robert S. SHUMAN, Sr. and Sherry L. Shuman, Debtors.
Bankruptcy No. 3-87-02214.
United States Bankruptcy Court, S.D. Ohio, W.D.
November 20, 1990.
Christopher M. Hawk, Dayton, Ohio, for debtors.
Barry P. Reich, Springfield, Ohio, for creditor.
George W. Ledford, Englewood, Ohio, Chapter 13 Trustee.
MEMORANDUM DECISION AND ORDER GRANTING MOTION OF SUSAN R. TRUITT TO PROCEED WITH STATE COURT LITIGATION
WILLIAM A. CLARK, Bankruptcy Judge.
Before the court is a motion of Susan R. Truitt for an order granting relief from the automatic stay of 11 U.S.C. § 362. The court has jurisdiction pursuant to 28 U.S.C. § 1334 and the standing order of reference entered in this district. This matter is a core proceeding under 28 U.S.C. § 157(b)(2)(G).
FACTS
On July 17, 1987, Robert S. Shuman, Sr. and Sherry L. Shuman filed a petition in bankruptcy under chapter 13 of the Bankruptcy Code. The debtors' plan was confirmed on September 29, 1987. Before the court is a motion of Susan R. Truitt for an order granting relief from the automatic stay of § 362 of the Bankruptcy Code so that she may proceed with a suit in state court (filed on May 24, 1990) against debtor Sherry L. Shuman. The suit seeks damages from Ms. Shuman and alleges that the debtor negligently entrusted a motor vehicle on February 3, 1989.
CONCLUSIONS OF LAW
The issue before the court is simply whether § 362 of the Bankruptcy Code prevents the movant from proceeding in state court with respect to events occurring after debtor Sherry L. Shuman filed her bankruptcy petition. The language of the statute and the relevant case law makes clear that the automatic stay is inapplicable in the present case.
Section 362(a)(1) provides that the filing of a bankruptcy petition operates as a stay, applicable to all entities, of
1) the commencement or continuation, including the issuance or employment of process, of a judicial, administrative, or other action or proceeding against the debtor that was or could have been commenced before the commencement of the case under this title, or to recover a claim against the debtor that arose before the commencement of the case under this title. (Emphasis Supplied)
From the plain language of § 362(a)(1) it is clear that, with respect to judicial actions and proceedings, the statute only stays those proceedings and actions which were instituted or could have been instituted prior to the filing of a debtor's bankruptcy *318 petition. Turner Broadcasting System, Inc. v. Sanyo Electric, Inc., 33 B.R. 996, 999 (D.N.D.Ga.1983). Further, the court finds nothing in the legislative history of § 362(a)(1) to suggest that Congress intended a different result:
Section 362(a)(1) of the House amendment adopts the provision contained in the Senate amendment enjoining the commencement or continuation of a judicial, administrative, or other proceeding to recover a claim against the debtor that arose before the commencement of the case. The provision is beneficial and interacts with section 362(a)(6), which also covers assessment, to prevent harassment of the debtor with respect to prepetition claims. 124 Cong.Rec. H11,092 (daily ed. Sept. 28, 1978); 124 Cong.Rec. S17,409 (daily ed. Oct. 6, 1978).
While the automatic stay of § 362 is a fundamental protection provided to a debtor in bankruptcy, and its scope is undeniably broad, it does not serve to stay all actions involving a bankrupt party. Rett White Motor Sales Co. v. Wells Fargo Bank, 99 B.R. 12, 14 (D.N.D.Cal.1989). In addition to the specific statutory exceptions to the automatic stay enumerated in § 362(b) of the Bankruptcy Code (e.g. criminal proceedings, actions to enforce police powers), "[t]he automatic stay does not prohibit the prosecution of an action against a debtor based upon a claim that arose after the filing of the bankruptcy petition." Acevedo v. Van Dorn Plastic Machinery Co., 68 B.R. 495, 498 (Bankr.E. D.N.Y.1986). See also FAA v. Gull Air, Inc. (In re Gull Air, Inc.), 890 F.2d 1255, 1263 (1st Cir.1989); Holland America Insurance Co. v. Succession of Roy, 777 F.2d 992, 996 (5th Cir.1985); Avellino & Bienes v. M. Frenville Co., Inc. (Matter of M. Frenville Co., Inc.), 744 F.2d 332, 334 (3rd Cir.1984).
The movant is cautioned, however, that, if she obtains a judgment against the debtor in state court while the debtor's chapter 13 case is still active, other provisions of § 362 may be applicable.
As long as the chapter 13 case is pending, the automatic stay of 11 U.S.C. § 362 restrains postpetition creditors from taking action against "property of the estate" [§ 362(a)(3) and (a)(4)] to collect their postpetition debts. 11 U.S.C. § 1306 defines property of the estate in a chapter 13 case to include property acquired postpetition and personal service earnings of the debtor acquired postpetition. In re Woodall, 81 B.R. 17, 18 (Bankr.E.D.Ark.1987).
In short, relief from the automatic stay may be required before the movant is permitted to enforce any judgment she may obtain.
For the foregoing reasons, it is hereby ORDERED that the motion of Susan R. Truitt to proceed with state court litigation against Sherry L. Shuman is GRANTED.
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897 S.W.2d 80 (1995)
Stanley W. HAWKINS and Norma C. Hawkins, Plaintiffs-Respondents,
v.
Robert L. FOSTER, Defendant-Appellant.
No. 19212.
Missouri Court of Appeals, Southern District, Division One.
March 10, 1995.
Motion for Rehearing or Transfer, Denied April 3, 1995.
Application to Transfer Denied May 30, 1995.
*81 C. Ronald Baird, Springfield, for defendant-appellant.
John Sims, Sims, Bridges, Dolence & Higdon, Neosho, for plaintiffs-respondents.
FLANIGAN, Judge.
This action arises out of a real estate contract entered into on May 9, 1990, between plaintiffs-sellers Stanley Hawkins and Norma *82 Hawkins, husband and wife, and defendant-buyer Robert Foster. The purchase price for the residence and lot in Neosho was $130,000, and the closing was scheduled for July 6, 1990. On that date, defendant refused to close. On June 17, 1991, plaintiffs sold the property to another purchaser for $100,000 and paid a real estate commission of $7,000 in connection with that sale. The trial court, sitting without a jury, awarded plaintiffs judgment against defendant in the sum of $37,000. Defendant appeals.
In general, defendant contends: (1) plaintiffs are not entitled to recover because they failed to provide defendant, prior to the closing, with a certificate that the residence was free of termites, and termite infestation was present; (2) even if defendant breached the contract, plaintiffs' recovery was limited to $1,000 under the liquidated damage clause of the contract; and (3) even if defendant breached the contract and the liquidated damage clause is not enforceable, plaintiffs sustained no damages because plaintiffs' evidence showed that the value of the residence on the date of closing was $149,500, which was more than the contract price.
On appellate review of a judgment in a nonjury action, this court must affirm the judgment unless there is no substantial evidence to support it, or it is against the weight of the evidence, or it erroneously declares or erroneously applies the law. Murphy v. Carron, 536 S.W.2d 30, 32[1] (Mo. banc 1976); Rule 73.01(c).[1]
Defendant is a licensed real estate broker who, at the time of trial, had been in the real estate business for 23 years. On May 9, 1990, aware that defendant was interested in buying the residence, plaintiff Stanley Hawkins told defendant that the house was up for sale. Later that day, defendant went to the residence and the parties signed a standard form written contract for the price of $130,000. Defendant supplied the printed form, and the parties inked in specific terms in the blanks provided. Hawkins told defendant that the residence had been "spot treated" for termites by Bob Caldwell in 1989. Defendant asked plaintiffs for a "certificate" of that from Caldwell. Defendant inked in the following provision: "Seller to furnish termite certification."
The contract called for the $130,000 to be paid by an initial installment of $1,000, and the balance to be paid upon delivery of the deed to buyer. The contract provided that the sale would be closed at defendant's office on July 6, 1990, at 1:00 p.m.
Six days prior to the day the contract was signed, plaintiffs obtained a written appraisal of the residence from realtor Thomas Dawson, who estimated that its market value on May 3, 1990, was $149,500. On May 9, plaintiff Stanley Hawkins told defendant that Dawson had made an appraisal, but defendant did not ask to see it. On May 10, defendant asked for a copy of the Dawson appraisal, and plaintiffs gave him a copy. Much of defendant's evidence in the trial court sought to challenge the accuracy of the Dawson appraisal, but on this appeal defendant makes no claim that any inaccuracy constitutes a defense.
On June 19, prior to the scheduled closing, plaintiffs obtained from Caldwell a certificate entitled "Standard Wood Destroying Insect Report Form," received into evidence as Exhibit 5. Plaintiffs' evidence was that to obtain the certificate Caldwell "had to go through a full treatment," and they paid Caldwell $725 to do so.
On June 21, defendant called plaintiff Norma Hawkins and told her that he had a problem with the Dawson appraisal. On June 27, defendant told Mrs. Hawkins that he had a cash flow problem and would not be able to close.
On July 6, at the appointed time, plaintiffs, accompanied by their attorney, went to defendant's office for the closing. They took various documents with them, including title insurance commitments, a warranty deed, and Exhibit 5. Defendant was not there. After waiting 30 minutes, plaintiffs and their attorney left defendant's office and encountered defendant on the parking lot. Plaintiffs told defendant they were there to close, and defendant said he was not going to close. Plaintiffs' evidence was that defendant did *83 not give any reason for not closing at that time.
Plaintiffs immediately listed the residence with Sy Werner, a realtor. The original listing price was $139,000. Werner testified that he made concentrated efforts to market the residence, including holding an open house for realtors only, newspaper advertising, and "everything we had available." On June 17, 1991, plaintiffs sold the residence to another purchaser for $100,000 and paid Werner a commission of $7,000.
Defendant's first point is that the trial court erred in awarding judgment to plaintiffs because "plaintiffs failed to provide a termite certification [to defendant] that the residence was free of termites at or prior to the scheduled closing ...; termites were present [in 1989] and had been spot treated...; active and inactive termite infestation was present in May and June of 1990; although treatment was provided, the certification did not state that the property was free from termites, hidden defects and structural damage, and the house was warranted against termites for a period of time and thus plaintiffs failed to perform a material condition of the contract."
A sufficient answer to defendant's first point is that it is factually unsound. The contract provided: "Seller to furnish termite certification."
Stanley Hawkins testified: Caldwell would not certify any home unless he did a full treatment, so I asked him to do a full treatment. Exhibit 5 is the certificate I received from Caldwell. Defendant did not ask for Exhibit 5 at the closing or earlier. We paid Caldwell $725 for him to go through a "full treatment," and that was on June 19 and for Exhibit 5 in anticipation of the closing. When we learned that Caldwell was going to have to do treatment on the house, including drilling some holes in the parquet floor, my wife called defendant and told him that Caldwell was going to do the treatment and was going to have to drill those holes. Defendant raised no objection. I took Exhibit 5 to the closing on July 6. Exhibit 5 satisfies the requirement that we were to provide termite certification. Exhibit 5 said it was termite free. The house was free of termites at the time we were going to turn the house over to defendant.
Plaintiffs offered the following admissions from defendant's deposition: I decided not to close because of the [Dawson] appraisal and I was never presented with anything on the termite certification. Plaintiffs told me, prior to the time I signed the contract, that there had been some termites out there and they had spot treated the year before. In my real estate business I have run into places where termites have been found. You generally go ahead and close, as long as the termites are treated and you have a certification and there is no structural damage. I don't know whether there was any structural damage at the Hawkins home. Out there at the closing I did not ask the Hawkinses for a deed or for a termite certification because I was not going to close because of the [Dawson] appraisal. [Exhibit 5] might be interpreted to be a termite certificate; a lot of lending institutions won't accept it as such; some cases it's accepted, some cases it's not.
Norma Hawkins testified: Defendant said he wanted a certification on the property for termites, and we were willing to get certification on it. We got [Caldwell] to come out and give us a certificate, Exhibit 5, and we had that document when we went to the closing. Exhibit 5 is the standard report form which we got from Caldwell. Caldwell treated it and gave me the certification. On July 6, 1990, there were no termites in the house.
Sy Werner, realtor, testified: If we had a contract calling for a termite certification, Exhibit 5 is the form I would have filled out by a termite inspector.
Exhibit 5, signed by Bob Caldwell of Caldwell Extermination Service, dated June 19, 1990, stated: "Findings: Based on careful visible inspection of the readily accessible areas of the property: (C) Visible evidence of infestation was noted; proper control measures were performed; (E) Visible evidence of previously treated infestation, which now appears inactive, was observed."
Plaintiffs' Exhibit 20, received into evidence, was a termite report on the residence *84 dated May 21, 1991, stating: "Property treated in 1990; no active termites observed at this time."
The findings of the trial court included the following: "The Hawkins residence was free of termites on the date of closing called for in the real estate contract.... In making this finding, the court relies upon the testimony of [plaintiffs] that the termites found had been treated, as well as Exhibit 5; defendant admitted that he made no inquiry as to whether the property was treated for termites, that he was not aware of any structural damage to the property caused by the termites, that he did not send anybody to the property to determine whether there was structural damage or not, and that he made no inquiry to determine whether or not the termite infestation had been treated; defendant admitted that Hawkins told him the property had been treated; defendant made no inquiry about the termite certificate; any failure of plaintiffs to provide the termite certificate when it was not requested is not a material breach of the agreement."
This court holds that the evidence justified the trial court in concluding that the plaintiffs fully performed the provision of the contract which read: "Seller to furnish termite certification." Defendant's first point has no merit.
Defendant's second point is that the trial court erred in awarding plaintiffs $37,000 because the contract of May 9 "has a liquidated damages clause that provides that: (A) Time is of the essence in this agreement, (B) that if Buyer fails to comply then the earnest money shall be paid over as liquidated damages because actual damages are difficult, if not impossible, to ascertain, and (C) said contract shall be operative at the option of Seller, but plaintiffs by selling their property and filing suit have repudiated the contract making it inoperative and limiting them to their liquidated damages."
A provision of the contract, which this opinion will call Clause A, reads:
"The price for said property shall be $130,000; to be paid by Buyer as follows: $1,000 at the time of the execution and delivery of this contract, the receipt of which is hereby acknowledged by the Seller, and which is deposited with Bob Foster Escrow Acct., as agent for the Seller, as earnest money, and as a part of the purchase price and consideration for this agreement, and upon delivery of the deed as hereinafter provided, the Buyer shall pay the balance of the purchase price to Seller as follows...."
Clause A was printed except for the dollar amounts and the words "Bob Foster Escrow Acct."
One of the printed provisions in the contract, which this opinion will call Clause B, reads, in pertinent part:
"It is understood and agreed that because of the commitments of the parties, that time is of the essence of this agreement, and if the Seller has kept Seller's part of this agreement by furnishing marketable title as herein provided, and the Buyer fails to comply with the requirements of this agreement within ten (10) days thereafter, then the money deposited as aforesaid shall be paid over to the Seller as liquidated damages, actual damages being difficult if not impossible to ascertain, and this agreement may or may not be thereafter operative, at the option of the Seller."
An inked in provision of the contract read: "Buyer is a Real Estate Broker. No Real Estate Commission."
Plaintiff Stanley Hawkins testified that on July 6 he asked Foster for the earnest money and that he never received it. Plaintiff Norma Hawkins testified that on July 6, during the conversation with defendant at the parking lot, the Hawkins' attorney mentioned the $1,000 earnest money. Defendant testified that he had agreed to put up an escrow amount of $1,000, that he had that escrow amount, and "it's in Bob Foster Escrow," which is defendant's account.
Clause B states that if the seller has furnished marketable title (defendant does not claim the Hawkinses did not do so) and the buyer fails to comply with the agreement within 10 days thereafter, the money deposited "shall be paid over to the Seller as liquidated damages, actual damages being difficult if not impossible to ascertain, and this *85 agreement may or may not be thereafter operative, at the option of the Seller."
If, as defendant testified, he placed $1,000 in his own escrow account, that was merely a matter of transferring it from his left pocket to his right. Under Clause B, the duty was on defendant, whether regarded as seller's agent or as buyer, or both, to pay the $1,000 to plaintiffs 10 days after defendant's default.
Defendant did not make payment of the $1,000 at any time, nor did he tender payment in his answer. The money was in his account. A reasonable construction of Clause B is that payment was due at the expiration of the 10-day period after the closing date. Even if there had been an agent who was entitled to a commission, and the $1,000 had been promptly paid and divided, the seller still had the option of determining whether the agreement "may or may not be thereafter operative." Payment of the deposit would not automatically spell the death of the agreement.
Forfeitures are not favored in law or in equity. Norman v. Durham, 380 S.W.2d 296, 301[4] (Mo.1964); Sebree v. Rosen, 374 S.W.2d 132, 140[15] (Mo.1964); Plymouth Sec. Co. v. Johnson, 335 S.W.2d 142, 152 [7] (Mo.1960). A liquidated damages provision is not enforceable as a contract unless the property forfeited is a reasonable forecast of just compensation for the harm caused by the breach, and it is difficult or impossible to estimate such harm accurately. Norman, at 301[7]. If the amount or value of the property stipulated as liquidated damages for breach of contract is greatly disproportionate to the ensuing loss, the court will construe it as a penalty and restrict the damages recovered to those actually suffered. Norman, at 301-302; Plymouth Sec. Co., at 152[9].
Labeling a provision as one of liquidated damages does not make it so if in fact it is a penalty. Plymouth Sec. Co., at 152; Wilt v. Waterfield, 273 S.W.2d 290, 295[10] (Mo.1954); Robert Blond Meat Co. v. Eisenberg, 273 S.W.2d 297, 299 (Mo.1954). Generally, liquidated damages clauses are valid and enforceable, while penalty clauses are invalid. Paragon Group, Inc. v. Ampleman, 878 S.W.2d 878, 880[2] (Mo.App.1994); Taos Constr. Co., Inc. v. Penzel Constr. Co., Inc., 750 S.W.2d 522, 525[1] (Mo.App.1988). In determining whether a clause calls for a penalty or liquidated damages, courts look to the intention of the parties as gleaned from the contract as a whole. Yerxa, Andrews & Thurston, Inc. v. Randazzo Macaroni Mfg. Co., 315 Mo. 927, 288 S.W. 20, 33[10] (1926); Muhlhauser v. Muhlhauser, 754 S.W.2d 2, 5[6] (Mo.App.1988). See also 6 A.L.R.2d 1401 (Provision in land contract for forfeiture of payments as one for liquidated damages or penalty).
"Missouri has adopted the Restatement of Contracts rules regarding liquidated damages." Paragon Group, Inc., at 881. See also Luna v. Smith, 861 S.W.2d 775, 779 (Mo.App.1993); Taos Constr. Co., Inc., at 525-526; Grand Bissell Towers, Inc. v. Joan Gagnon, Enter., Inc., 657 S.W.2d 378, 379 (Mo.App.1983); Highland Inns Corp. v. Am. Landmark Corp., 650 S.W.2d 667, 674 (Mo. App.1983).
The Restatement (Second) of Contracts, § 356 (1979) reads, in pertinent part:
"(1) Damages for breach by either party may be liquidated in the agreement but only at an amount that is reasonable in the light of the anticipated or actual loss caused by the breach and the difficulties of proof of loss. A term fixing unreasonably large liquidated damages is unenforceable on grounds of public policy as a penalty."
Comment a. under that section includes the following:
"A term that fixes an unreasonably small amount as damages may be unenforceable as unconscionable."
Prior to the signing of the contract on May 9, 1990, plaintiff Stanley Hawkins had lost his job in Neosho and was working in Nebraska. He came home every other weekend to visit his family. He later made arrangements to purchase a home in Nebraska. Plaintiffs argue that $1,000 in liquidated damages is unreasonable as a forecast of probable damages and disproportionate to the amount of damages which would probably result from defendant's breach and that the provision is unconscionable. That argument, under the *86 record here, is valid, and there is a more basic reason why defendant is not entitled to rely on Clause B to limit plaintiffs' recovery to $1,000.
"A party cannot affirm a contract in part, and repudiate it in part. He cannot accept its benefits on the one hand, while he shirks its disadvantages on the other. He cannot play fast and loose in the matter." Schurtz v. Cushing, 347 Mo. 113, 146 S.W.2d 591, 594[4] (1940). "A party will not be allowed to assume the inconsistent position of affirming a contract in part by accepting or claiming its benefits, and disaffirming it in part by repudiating or avoiding its obligations or burdens." In re Marriage of Carter, 862 S.W.2d 461, 468[5] (Mo.App.1993). "A party to a contract cannot claim its benefits where he is the first to violate it." Motor Port, Inc. v. Freeman, 62 S.W.2d 479, 481[3] (Mo.App.1933). A party to a contract cannot have the benefit of its provisions which are favorable to him and ignore its conditions which are to be performed by him. Farmers & Merchants Bank of Eureka v. Boland, 175 S.W.2d 939, 947[9] (Mo.App.1943). See also Artcraft Cabinet, Inc. v. Watajo, Inc., 540 S.W.2d 918, 926[16] (Mo.App.1976).
Clause B required defendant, upon defendant's breach, to pay plaintiffs the $1,000 deposit. Defendant did not do so. To say that defendant breached that duty merely in his capacity as seller's agent and not as buyer is, under the facts here, to place form over substance. Defendant's breach of Clause B prevents him from relying upon it as a limit to plaintiffs' recovery.
Defendant's reliance on Warstler v. Cibrian, 859 S.W.2d 162 (Mo.App.1993), is not justified. In Warstler the liquidated damages provision called for payment of the deposit to seller, upon the buyer's breach, "in the event the seller shall declare the contract inoperative." Clause B, in the case at bar, does not contain the quoted language. Defendant's second point has no merit.
Defendant's third point is that the plaintiffs failed to make a submissible case on the issue of damages, in that "all evidence offered by plaintiffs" was to the effect that the value of the residence and lot on the date of closing was $149,500, which was more than the contract price, and the measure of damages is the difference between the contract price and the value of the property on the date the contract was breached.
In answer to a request by defendant for findings of fact and conclusions of law, the trial court made the following findings:
"The court finds the amount of damages suffered by plaintiffs as a result of the breach of contract as to loss of the benefit or loss of bargain amounts to $37,000 and the court calculates those damages as follows and relies on the following testimony: The Contract of Sale between plaintiffs and defendant called for a sale price of $130,000, with no real estate commission. Plaintiffs sold this property on June 17, 1991, for $100,000 less a real estate commission of $7,000. There is no evidence that Hawkins could have sold the property for more or could have made any other sales. Foster admits in his deposition and in his testimony the fair market value must have been $100,000. Tom Dawson stated the fair market value for residential use was $100,000. Both Foster and Dawson admitted residential was the highest and best use. Sy Werner testified he sold the house for as much as he could get. Stan Hawkins testified he sold the house for as much as he could. Several testified there was no change in the real estate from the date called for closing of the Foster contract and when the Hawkins sold their property for $100,000."
Defendant has not challenged the foregoing findings.
Long ago our supreme court said:
"That a vendor of land, on failure of a purchaser to pay, may re-sell and recover damages for the breach of the first contract, is well settled; and, although the difference in price between the first and second sales is not conclusive, yet, according to the authorities, it affords a good criterion of the damages actually sustained." Gardner v. Armstrong, 31 Mo. 535, 540-541 (1862).
"In an action for breach of contract brought by the seller of real estate against the buyer, the general rule is that the seller's measure of damages is the difference between the contract price and the market *87 value of the land on the date the contract `should have been completed,' that is the date of breach." Conway v. Judd, 723 S.W.2d 905, 909[3] (Mo.App.1987).
"In sales of an interest in realty, there is no obligation on the part of the seller to elect his remedy when the buyer defaults and there is no applicable theory of mitigation of damages. The seller may resell the property or retain it and, in either event, be entitled to recover his loss measured by the difference between the contract price and the market price. Of course, an essential element of the seller's case is proof of market value and if he does resell within a reasonable time after the breach, the price obtained is some evidence of market value." Leonard v. Am. Walnut Co., Inc., 609 S.W.2d 452, 455[6] (Mo.App.1980).
Conflicts in the evidence concerning real estate values are for resolution by the fact finder. State v. Salmark Home Builders, Inc., 375 S.W.2d 92, 100[14] (Mo. 1964); Earney v. Clay, 516 S.W.2d 59, 65-66[13] (Mo.App.1974). The fact finder, in this case the trial court, need not make his finding "precisely coincide" with the testimony of any particular expert. State ex rel. State Highway Comm'n v. Grissom, 439 S.W.2d 13, 15-16 (Mo.App.1969). It is sufficient if the value set by the fact finder is "within the range" of the evidence. Id. at 17. To similar effect see City of Lee's Summit v. Hinck, 618 S.W.2d 719, 721 (Mo.App.1981).
It is true that on cross-examination by defendant's counsel both plaintiffs testified that in their opinion the fair market value of the residence on the day of closing and on the day of the resale was $149,500.
"Although it has been stated that a party's testimony `may be of such a nature as to have the effect of a judicial admission,' which precludes the party from disputing it unless some reasonable explanation for the falsity of the statement is given, this principle only applies to positive statements of fact and not to mere estimates or opinions. Jockel v. Robinson, 484 S.W.2d 227, 231 (Mo.1972)." Heilman v. Heilman, 700 S.W.2d 843, 844[2] (Mo.banc 1985).
Similarly, in Hecker v. Schwartz, 426 S.W.2d 22 (Mo.1968), the court said, at 25: "Where, however, the testimony of a party is not a positive statement of fact within his own knowledge, but is a mere estimate or opinion, it does not have the effect of a judicial admission."
This court holds that plaintiffs' testimony, extracted on cross-examination and consisting of their opinions as to the market value of the residence, did not have the effect of judicial admissions. The trial court's award of $37,000 was supported by the evidence. See Hoelscher v. Schenewerk, 804 S.W.2d 828, 832[4] (Mo.App.1991).
The judgment is affirmed.
SHRUM, C.J., and MONTGOMERY, J., concur.
NOTES
[1] All references to rules are to Missouri Rules of Court, V.A.M.R.
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NONPRECEDENTIAL DISPOSITION
To be cited only in accordance with Fed. R. App. P. 32.1
United States Court of Appeals
For the Seventh Circuit
Chicago, Illinois 60604
Submitted November 1, 2019
Decided November 4, 2019
Before
AMY C. BARRETT, Circuit Judge
MICHAEL B. BRENNAN, Circuit Judge
MICHAEL Y. SCUDDER, Circuit Judge
No. 19-1479
UNITED STATES OF AMERICA, Appeal from the United States District
Plaintiff-Appellee, Court for the Southern District of Illinois.
v. No. 18-cr-30136-MJR
WARREN GRIFFIN II, Michael J. Reagan,
Defendant-Appellant. Judge.
ORDER
Warren Griffin II pleaded guilty to illegally possessing a firearm as a felon,
see 18 U.S.C. § 922(g), and was sentenced above the guidelines range to 37 months’
imprisonment. Griffin appeals, but his counsel argues the appeal is frivolous and moves
to withdraw. See Anders v. California, 386 U.S. 738, 746 (1967). Because counsel’s brief
appears thorough, we limit our review to the issues counsel discusses and the
additional argument that Griffin raises in his Circuit Rule 51(b) response. See United
States v. Bey, 748 F.3d 774, 776 (7th Cir. 2014).
Counsel first notes that Griffin does not want his guilty plea set aside, and thus
properly forgoes discussing the voluntariness of the plea or the adequacy of the plea
No. 19-1479 Page 2
colloquy. See United States v. Konczak, 683 F.3d 348, 349 (7th Cir. 2012); United States v.
Knox, 287 F.3d 667, 671 (7th Cir. 2002).
Counsel considers whether Griffin could challenge the district court’s calculation
of the guidelines range and properly concludes that a challenge would be frivolous. The
court correctly assessed Griffin’s base offense level at 14, see U.S.S.G. § 2K2.1(a)(6)(A),
and added four levels because he possessed the firearm in connection with another
felony (the police recovered 799 grams of marijuana from Griffin’s car during his
arrest). See id. § 2K2.1(b)(6)(B); 720 ILCS 550/5(e) (Any person in possession of “more
than 500 grams . . . of any substance containing cannabis is guilty of a Class 2
felony . . . .”) After deducting three levels for accepting responsibility, see U.S.S.G.
§ 3E1.1(b), the court properly adopted a total offense level of 15. The court also correctly
assessed Griffin’s criminal history category at II based on his felon-in-possession
conviction in 2001 for which he was sentenced to 102 months imprisonment.
See U.S.S.G. § 4A1.1(a). Five other convictions, including aggravated assault and twice
being a felon in possession, were deemed too old to incur any levels. See U.S.S.G.
§ 4A1.2(e)(3). The total offense level of 15 and criminal history category of II yielded a
guidelines range of 21 to 27 months’ imprisonment.
Counsel next considers whether Griffin could challenge the court’s decision to
impose an above-range, 37-month sentence, but rightly concludes that doing so would
be futile. We will uphold an above-guidelines sentence so long as the district court
reviews the factors in 18 U.S.C. § 3553(a) and explains why the guidelines range does
not reflect the defendant’s criminality. See United States v. Musgraves, 883 F.3d 709, 716
(7th Cir. 2018). The district court here recounted the nature and circumstances of
Griffin’s offense (carrying a loaded gun in possession of a felony amount of marijuana
with multiple prior firearm convictions). The court also emphasized Griffin’s
“significant” criminal history, including three prior firearm-related offenses that led to
prison sentences totaling 290 months. In the court’s view, Griffin’s criminal-history
category of II “seriously underrepresent[ed] his history of criminality and the likelihood
of his recidivism” as well as the need for punishment and deterrence. Because many of
his earlier, uncounted (i.e., timed out) offenses were “gun after gun after gun,” the court
concluded that the “more appropriate” criminal history category for him was not II but
IV, and so it sentenced him to a term of 37 months—the top of the range under this
alternative calculation. Even if the court’s decision to recast Griffin’s criminal history
category was unconventional, the court premised its ruling on an assessment of the
§ 3553(a) factors and its belief that the guidelines range did not adequately account for
the degree of Griffin’s past criminality. Because the district court used a properly
No. 19-1479 Page 3
calculated guidelines range as a starting point and justified its deviation from that range
with reference to the statutory factors, any challenge to the above-guidelines sentence
on appeal would be frivolous. See United States v. Kuczora, 910 F.3d 904, 908 (7th Cir.
2018).
Counsel also contemplates challenging the three-year term of supervised release,
but rightly concludes that doing so would be frivolous. The court sentenced him to a
term that was within the guidelines range and thus presumptively reasonable, see
United States v. Jones, 774 F.3d 399, 404 (7th Cir. 2014), and Griffin offers nothing to rebut
that presumption.
The remaining argument Griffin raised would be similarly frivolous. He argues
that the sentencing court erroneously stated he had four prior convictions for firearm
offenses. But the sentencing hearing transcript shows that the court understood that the
number of prior felony firearm convictions was three.
Court: [Griffin’s] relevant conduct involved the possession of a firearm
with multiple previous felony convictions on his record . . . He has a
significant criminal history including five felony convictions. This will be
his third Federal gun case, or fourth.
AUSA: Fourth.
Court: So it is his fourth Federal gun case.
The court correctly understood that Griffin had three prior felony gun convictions.
We GRANT counsel’s motion to withdraw and DISMISS the appeal.
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989 F.2d 496
NOTICE: Fourth Circuit I.O.P. 36.6 states that citation of unpublished dispositions is disfavored except for establishing res judicata, estoppel, or the law of the case and requires service of copies of cited unpublished dispositions of the Fourth Circuit.UNITED STATES OF AMERICA, Plaintiff-Appellee,v.Wayne METHOD, Defendant-Appellant.
No. 92-5753.
United States Court of Appeals,Fourth Circuit.
Submitted: March 1, 1993Decided: March 23, 1993
Appeal from the United States District Court for the Northern District of West Virginia, at Elkins. Robert R. Merhige, Jr., Senior District Judge, sitting by designation. (CR-90-43)
William H. Martin, Charles Town, West Virginia, for Appellant. William A. Kolibash, United States Attorney, Thomas O. Mucklow, Assistant United States Attorney, Wheeling, West Virginia, for Appellee.
N.D.W.Va.
AFFIRMED.
Before WIDENER, HAMILTON, and WILLIAMS, Circuit Judges.
PER CURIAM:
OPINION
1
Wayne Method entered a guilty plea to one count of distributing 0.27 grams of crack cocaine in violation of 21 U.S.C.A. § 841 (West Supp. 1992) and 18 U.S.C. § 2 (1988). He appeals the sentence he received. We affirm.
2
Method's plea agreement contained a stipulation that the total amount of crack involved in the offense was 3.81 grams. The government attorney mailed it to Method's lawyer with a short cover letter which pointed out that the 3.81 grams included both the 0.27 grams Method sold to an informant and an additional one-eighth of an ounce of crack which he and the informant also discussed. At the guilty plea hearing, the government's factual basis for the plea related how Method sold 0.27 grams to the informant and then discussed a future sale of one-eighth of an ounce (3.54 grams), which never took place. Method had no objection to the factual basis and declined to present any evidence.
3
However, after the presentence report was prepared, defense counsel objected to the recommended base offense level, arguing that only 0.27 grams should be used to compute Method's sentence because he had failed to point out to Method that the amount in the plea agreement was greater than the amount in Count Two of the indictment. At the hearing, defense counsel related to the court Method's assertion that he had not discussed any future deals with the informant. Method did not testify or move to withdraw his guilty plea.
4
Because Method had accepted the plea agreement and entered an apparently voluntary guilty plea with notice of the total amount alleged by the government and without objection, the district court refused to disregard the additional 3.54 grams. We review the district court's determination of the amount of drug involved under the clearly erroneous standard. United States v. Goff, 907 F.2d 1441 (4th Cir. 1990).
5
The government may meet its burden of showing the amount of drugs in several ways; among others, it may be done through the defendant's acknowledgment during the Rule 11 colloquy that the amount alleged by the government is correct, or through a stipulation of the parties which the court finds to have a reasonable factual basis. United States v. Gilliam, No. 90-5548, slip op. at 6-7 (4th Cir. 1993). In both ways, the government met its burden in this case. We find that the district court did not clearly err in considering the whole amount of crack stipulated in the plea agreement.*
6
We therefore affirm the judgment of the district court. We dispense with oral argument because the facts and legal contentions are adequately presented in the materials before the Court and argument would not aid the decisional process.
AFFIRMED
*
Method represents on appeal that the tape recording of his sale to the informant contains no discussion of a future deal. He did not present evidence on this factual question in the district court and it is not properly raised on appeal. United States v. Davis, 954 F.2d 182 (4th Cir. 1992)
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IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
No. 01-40352
Conference Calendar
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
JOSE LUIS SERRATO-BELMONTEZ,
Defendant-Appellant.
--------------------
Appeal from the United States District Court
for the Southern District of Texas
USDC No. L-00-R-1227-1
--------------------
December 12, 2001
Before HIGGINBOTHAM, BARKSDALE, and STEWART, Circuit Judges.
PER CURIAM:*
Jose Luis Serrato-Belmontez appeals his guilty–plea
conviction and sentence, arising out of his having been found in
the United States after having been “denied admission, excluded,
deported, or removed” in violation of 8 U.S.C. § 1326.
Serrato-Belmontez contends his indictment was
unconstitutionally vague because it failed to charge him with any
mens rea. Serrato-Belmontez concedes that his argument is
foreclosed by this court’s precedent in United States v. Guzman-
Ocampo, 236 F.3d 233, 236 (5th Cir. 2000), cert. denied, 121 S.
*
Pursuant to 5TH CIR. R. 47.5, the court has determined
that this opinion should not be published and is not precedent
except under the limited circumstances set forth in 5TH CIR.
R. 47.5.4.
No. 01-40352
-2-
Ct. 2600 (2001), and United States v. Berrios-Centeno, 250 F.3d
294, 299-300 (5th Cir. 2001), cert. denied, 122 S. Ct. 288
(2001), but he wishes to preserve the argument for review by the
Supreme Court.
Serrato-Belmontez also claims his prior conviction for
transporting aliens did not constitute an “aggravated felony”
conviction warranting a 16-level increase in his base offense
level under U.S.S.G. § 2L1.2(b)(1)(A). As Serrato-Belmontez
concedes, this court has already determined that transporting
aliens constitutes an aggravated felony. See United States v.
Monjaras-Castaneda, 190 F.3d 326, 331 (5th Cir. 1999), cert.
denied, 528 U.S. 1194 (2000). Serrato-Belmontez seeks only to
preserve the issue for Supreme Court review.
The judgment of the district court is AFFIRMED.
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