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358 F.2d 301 June H. STEPHENS, Appellant,v.Jesse D. HARRIS, Warden, U. S. Medical Center, Springfield, Missouri, Appellee. No. 18195. United States Court of Appeals Eighth Circuit. March 28, 1966. June H. Stephens, pro se. F. Russell Millin, U. S. Atty., and Clifford M. Spottsville, Asst. U. S. Atty., Kansas City, Mo., for appellee. Before MATTHES, MEHAFFY and GIBSON, Circuit Judges. PER CURIAM. 1 This appeal is from an order of the United States District Court for the Western District of Missouri denying appellant's petition for habeas corpus and his application for restraining order against the Attorney General's Office seeking to prohibit his transfer out of the judicial district pending hearing on this application for writ. 2 The well considered opinion of District Judge William R. Collinson, published at 250 F.Supp. 641, contains a detailed statement of the facts and reflects that the District Court treated all of appellant's allegations as true. 3 We agree with the District Court's conclusion that appellant has misconstrued his remedy in applying for habeas corpus, and on the basis of Judge Collinson's opinion, the judgment of the District Court is affirmed. 4 For authorities supportive of the conclusion reached by Judge Collinson, see Eagles v. United States, 329 U.S. 304, 307, 311, 312, 67 S.Ct. 313, 91 L.Ed. 308 (1946); McNally v. Hill, Warden, 293 U.S. 131, 55 S.Ct. 24, 79 L.Ed. 238 (1934); Williams v. Steele, 194 F.2d 32, 34 (8th Cir. 1952); Taylor v. United States, 179 F.2d 640, 643 (9th Cir. 1950); Dayton v. Hunter, 176 F.2d 108 (10th Cir. 1949).	{ "pile_set_name": "FreeLaw" }
NUMBER 13-01-460-CR COURT OF APPEALS THIRTEENTH DISTRICT OF TEXAS CORPUS CHRISTI - EDINBURG ADRIAN ARRIZON, Appellant, v. THE STATE OF TEXAS, Appellee. On appeal from the 28th District Court of Nueces County, Texas. MEMORANDUM OPINION Before Justices Yañez, Rodriguez and Garza Opinion by Justice Garza Appellant, Adrian Arrizon, was tried and convicted of capital murder and attempted capital murder, offenses for which he is currently serving two life sentences in prison. The trial court denied appellant’s motion for new trial. Appellant appeals his conviction to this Court on three issues. We find against Appellant on all three issues, and accordingly affirm the judgment of the trial court. Illegal Search By his first issue, appellant argues that the owner of the house he was residing in did not have the legal authority to consent to the search of the house. Appellant had been staying at the home in question for about two months, with the knowledge and permission of the homeowner, Ninfa de los Santos. De los Santos had previously lived in the home with her son but had recently moved in with her sister following her son’s incarceration. She retained her key to the property and occasionally came by the house unannounced while appellant was living there. Appellant did not pay rent but had agreed to keep the home and yard clean. Police officers initially came to the home in response to reports that the residence was being used as a meeting place for juvenile gang members. The officers received verbal consent for an initial search solely from De los Santos in order to conduct a search for bodies or people. De los Santos met police officers at the house and used her key to allow officers access inside the home. While the police were inside the home, appellant, who was not present initially, arrived at the house. After observing the wooden stock of a rifle and other suspicious items in the home, the officers obtained written consents for a broader search from both De los Santos and appellant. Thereafter, the police officers seized numerous items that were subsequently used against appellant at trial. Appellant argues that these items were seized illegally and should therefore have been excluded at trial. His motion to suppress this evidence was denied by the trial judge. A trial court’s denial of a motion to suppress evidence is reviewed under a standard of abuse of discretion. Villarreal v. State, 935 S.W.2d 134, 138 (Tex. Crim. App. 1996). The appellate court must conduct this review in a light most favorable to the trial court, and must sustain the trial court’s ruling so long as it is reasonably supported by the record and is correct on an applicable theory of law. Id.; Rangel v. State, 972 S.W.2d 827, 831 (Tex. App.–Corpus Christi 1998, pet. ref’d). In reviewing a trial court’s determination regarding the search of a rented residence, the appellate court may address whether a property owner’s consent in allowing the police to search the residence is also effective against the tenant. Franco v. State, 25 S.W.3d 26, 31 (Tex. App.–El Paso 2000, pet. ref’d). The United States Supreme Court has held that a warrantless search pursuant to a third party’s consent is valid if the facts available to the officer at the time of the search would “warrant a man of reasonable caution in the belief” that the consenting party had authority over the premises. Illinois v. Rodriguez, 497 U.S. 177, 188 (1990). The Texas Supreme Court and this court have also agreed that so long as a police officer acts in good faith on the consent given and makes a reasonable inference from the facts of the situation, this kind of warrantless search can be considered valid. McNairy v. State, 835 S.W.2d 101, 104 (Tex. Crim. App. 1991). Additionally, the Texas Court of Criminal Appeals has held that, in informal two-party property relationships such as this, where rent is not paid and the property owner retains control over and authority to use the home, the property owner can give valid consent to search without the consent of the current resident. Balentine v. State, 71 S.W.3d 763, 773 (Tex. Crim. App. 2002); see Garcia v. State, 887 S.W.2d 846, 851-52 (Tex. Crim App. 1994) (permitting a landlord whose agreement with a tenant allows the landlord to enter the property and store items there to consent to search of that property by the police, even though the tenant had changed the locks and maintained exclusive control). A person with “common authority” over property may legally consent to a police search of that property, even without the knowledge or consent of another party having access to or use of the property. Franco, 25 S.W.3d at 31. “Common authority” is established through joint access or control of the property for most purposes. Id. Trial testimony established that at the time of the initial search, both police officers believed they were entering a deserted house no longer used as a residence, since the windows had been boarded up and the owner initially told them no one was living there. The homeowner had clearly retained control over and authority to enter the home, as she used her own keys to open the door where she had installed a lock, and she testified that she would visit the home unannounced during appellant’s residency. She also reported that she continued to store items inside the home, including the wooden rifle stock seized as evidence during the second search, which she testified she had found months earlier. Upon completion of the initial search, the police officers wanted to conduct a more thorough inspection that would extend beyond the parameters of the initial consent. The officers then obtained written consent from both appellant and the owner. Because the owner had clearly retained common authority over the property, her continuing consent, allowing the police to expand the parameters of the initial search, was valid. This was sufficient for the trial judge to find that the evidence seized by the police during this search was admissible. Furthermore, the judge did not abuse his discretion in finding that the homeowner retained common authority over the property and that the officers did in fact act reasonably in accepting the owner’s verbal consent to the initial search. See Franco, 25 S.W.3d at 31-32. We overrule appellant’s first issue. Jury Instructions Appellant alleges by his second issue that he was denied due process of law and the right to a fair jury trial when the trial judge refused the defense team’s tendered jury instruction, which would have defined prosecution witness Lee Roy Vela as an accomplice as a matter of law. This Court reviews jury instructions under an abuse of discretion standard. Wesbrook v. State, 29 S.W.3d 103, 122 (Tex. Crim. App. 2000). A trial judge has broad discretion when fashioning a jury charge and only has to accept such suggested instructions from counsel “as he may deem proper.” Tex. Code Crim. Proc. Ann. art. 36.16 (Vernon 1981). When the judge does not use a requested instruction, the question on appeal is whether that instruction was reasonable and within the mandates of Tex. Code Crim. Proc. Ann. art. 38.22 and 38.23 (Vernon 2004). Mendoza v. State, 88 S.W.3d 236, 240 (Tex. Crim App. 2002). An accomplice is a party who participates before, during or after the commission of the crime, and who could be prosecuted for the same offense as the defendant or for a lessor included offense. Blake v. State, 971 S.W.2d 451, 454-55 (Tex. Crim. App. 1998); Ex Parte Zepeda, 819 S.W.2d 874, 875-76 (Tex. Crim. App. 1991). A party is not considered an accomplice for knowing about the crime and failing to report it to authorities, or even concealing it. Blake, 971 S.W.2d at 454. Article 38.14 of the Texas Code of Criminal Procedure establishes how accomplice testimony is to be used as trial: “A conviction cannot be had upon the testimony of an accomplice unless corroborated by other evidence tending to connect the defendant with the offense committed, and the corroboration is not sufficient if it merely shows the commission of the offense.” Tex. Code Crim. Proc. Ann. art. 38.14 (Vernon 1979). It has been well established for over a century in this state that whenever “there is a question whether a witness is an accomplice, it is proper to submit that issue to the jury, and this is sufficient even though the evidence appears to preponderate in favor of the conclusion that the witness is an accomplice as a matter of law.” Harris v. State, 645 S.W.2d 447, 454 (Tex. Crim. App. 1983); see Blake, 971 S.W.2d at 455; Smith v. State, 229 S.W. 523, 526 (Tex. Crim. App. 1921); Powell v. State, 57 S.W. 95, 96 (Tex. Crim. App. 1900). Only when the evidence clearly and convincingly shows that the witness is an accomplice as a matter of law is the judge bound to instruct the jury of this fact. Harris, 645 S.W. 2d at 454; see DeBlanc v. State, 799 S.W.2d 701, 708 (Tex. Crim. App. 1990); Fields v. State, 426 S.W.2d 863, 864 (Tex Crim App. 1968); Mora v. State, 197 S.W.2d 209, 211 (Tex. App. – Corpus Christi 1990, pet. ref’d); Sexton v. State, 51 S.W.3d 604, 613-14 (Tex. App.-Tyler 2000, pet. ref’d). The trial court is under no duty to instruct the jury unless there is no doubt or the evidence clearly shows that a witness is an accomplice witness as a matter of law. Kutzner v. State, 994 S.W.2d 180, 187 (Tex. Crim. App. 1999). In this case, there was testimony from two accomplices, and the jury was accordingly instructed on how to properly weigh their testimony. However, Lee Roy Vela, the prosecution witness in question, was not charged in the crime, nor was he ever a serious target of the police investigation. He was not at the scene of the crime, did not know it had occurred until some time later, and was present only at the inchoate planning stages. He testified that he had not assisted with or approved of the planned offense, and was not a member of the gang that had carried out the shooting. The evidence was insufficient to charge Vela as an accomplice as a matter of law. See Herron v. State, 86 S.W.3d 621, 631 (Tex. Crim. App. 2002) (citing Ex Parte Zepeda, 819 S.W.2d 874, 876 (Tex. Crim. App. 1991)). Thus, the question of his involvement and relative culpability remained one of fact, and therefore was appropriately handled by the jury, not the judge. While the judge did not instruct the jury specifically on the difference between accomplices-in-law and accomplices-in-fact, the charge included the definition of the term “accomplice,” was otherwise fair and met the considerations established in Harris, Mora, and the other authority previously cited. See Navarro v. State, 863 S.W.2d 191, 201 (Tex. App. –Austin 1993, pet. ref’d) (“If witness is not an accomplice witness, no instruction need be given.”). We conclude, therefore, the requested charge was not necessary to enable the jury to render a proper verdict, and there was no abuse of discretion by the trial judge. Appellant’s second issue is overruled. Admissibility In his third issue, appellant argues that a gruesome photograph of the victim should not have been admitted, as it was substantially more prejudicial than probative and was unnecessary to prove any element of the State’s case. An appellate court reviewing a lower court’s ruling on the admissibility of evidence must apply an abuse of discretion standard of review, and must examine the trial judge’s ruling in the context of the other evidence presented at trial. Weatherred v. State, 15 S.W.3d 540, 542 (Tex. Crim. App. 2000). A gruesome photograph of a victim of a violent crime is not rendered inadmissible as evidence simply because of its gruesomeness and accompanying emotional effect on the jury; instead, the controlling factor on admissibility is whether the probative value of the photograph as evidence outweighs its potentially prejudicial effect, which the trial judge has the discretion to determine. Tex. R. Evid. 403; Fuentes v. State, 846 S.W.2d 527, 529 (Tex. App–Corpus Christi 1993, pet. ref’d); Reimer v. State, 657 S.W.2d 894, 898 (Tex. App.–Corpus Christi 1983, no pet.). Probative value is established if the photograph is needed to support the observations and conclusions of pathologists or medical examiners, or to otherwise corroborate evidence presented at trial. Lewis v. State, 505 S.W.2d 603, 604 (Tex. Crim. App. 1974). For example, in Ward v. State, 787 S.W.2d 116, 120 (Tex. App.–Corpus Christi 1990, pet. ref’d), a photograph that depicted the head of the child victim and indicated entry of the bullet was admissible to reveal the manner of death. Id. Indeed, photographic evidence, however gruesome, is rarely excluded as overwhelmingly prejudicial; the rare cases in which such evidence has been excluded involved extremely gruesome photographs of previous or unrelated crimes. See Jones v. State, 111 S.W.3d 600, 608 (Tex. App.–Dallas 2003, pet. ref’d), Potter v. State, 74 S.W.3d 105, 113 (Tex. App.–Waco 2002, no pet.). Appellant disputes the necessity of the photograph and argues that it was simply used to incite the passions of the jury. However, the trial record shows that the photograph of the victim’s head was used to both corroborate the testimony of the Nueces County medical examiner regarding the caliber of the weapon used and the fact that the victim had been facing the shooter, and the testimony of an accomplice as to what the appellant had told him occurred during the shooting. No other less gruesome photograph admitted into evidence would have accomplished this, as this was the only photograph documenting the head wound. Thus, the trial court did not abuse its discretion in admitting the disputed photograph into evidence. We overrule appellant’s third issue. Conclusion Accordingly, we affirm the judgment of the trial court. ________________________ DORI CONTRERAS GARZA, Justice Do not publish. Tex. R. App. P. 47.2(b). Opinion delivered and filed this 26th day of February, 2004.	{ "pile_set_name": "FreeLaw" }
537 U.S. 1175 BROOKSv.MICHIGAN. No. 02-7712. Supreme Court of United States. January 27, 2003. 1 CERTIORARI TO THE COURT OF APPEALS OF MICHIGAN. 2 Ct. App. Mich. Certiorari denied.	{ "pile_set_name": "FreeLaw" }
675 F.2d 1122 KIRKPATRICK OIL & GAS COMPANY, Plaintiff-Appellant,v.UNITED STATES of America and Thomas S. Kleppe, Secretary ofthe Interior, Defendants-Appellees. No. 80-1117. United States Court of Appeals,Tenth Circuit. April 19, 1982. Charles Nesbitt, Oklahoma City, Okl., for plaintiff-appellant. Thomas H. Pacheco, Atty., Dept. of Justice, Washington, D. C. (James W. Moorman, Asst. Atty. Gen., Washington, D. C., Larry D. Patton, U. S. Atty., Susie Pritchett, Asst. U. S. Atty., Oklahoma City, Okl., Anne S. Almy, Atty., Dept. of Justice, Washington, D. C., with him on the briefs), for defendants-appellees. Before DOYLE and LOGAN, Circuit Judges, and TEMPLAR, District Judge. LOGAN, Circuit Judge. 1 Kirkpatrick Oil & Gas Company (Kirkpatrick) appeals from the district court's judgment affirming the Secretary of Interior's determination that Kirkpatrick's oil and gas leases on federally owned land had expired for failure to produce oil or gas in paying quantities. The controlling issue on appeal is whether, without the Secretary of Interior's approval, state-compelled communitization binds the federal government as landowner, so that production from other property in the "unit" is attributed to the federal property, thereby extending the terms of the federal leases.1 2 On April 1, 1969, Kirkpatrick acquired by assignment oil and gas leases on federally owned land in Oklahoma. By statute and their own provisions, the leases were to remain in effect beyond their initial ten-year terms only so long as they produced oil or gas in paying quantities. See 30 U.S.C. § 226(e). The initial terms had all expired by December 31, 1975. On November 26, 1976, the United States informed Kirkpatrick that its oil and gas leases were terminated for lack of paying production. Kirkpatrick appealed this decision to the Secretary of Interior, which through the Interior Board of Land Appeals upheld the termination. Kirkpatrick then filed the instant action in federal district court seeking a declaration that its leases remain in effect and seeking to quiet title to them. The district court, hearing the case based on stipulated facts, held the leases had expired. Kirkpatrick appeals that decision. On appeal we must determine whether substantial evidence supports the Secretary's decision and whether the Secretary applied the proper legal standards. See Pan American Petroleum Corp. v. Udall, 352 F.2d 32, 35 (10th Cir. 1965). 3 Although within the ten-year terms Kirkpatrick drilled no well on the federal property, it contends that because an Oklahoma drilling and spacing order places in a single unit the federal lands and nearby nonfederal lands, oil and gas produced from Kirkpatrick's well on the nonfederal lands constitute production from the federal lands, and thereby extend the leases. The Secretary contends that federal leases are not subject to communitization unless approved by the Secretary and observes that the Secretary never approved the Oklahoma order. In response to the Secretary, Kirkpatrick reasons that Oklahoma oil and gas conservation laws apply to federal lands within Oklahoma unless and until superseded by Congress; on this issue Congress has not superseded those laws; therefore, the Oklahoma drilling and spacing order applies to the federal lands within the unit. The crucial question in this case is whether Congress intended to subject federal lands to state communitization orders only when approved by the Secretary of Interior. If so, then the federal requirement prevails. U.S.Const. art. VI, cl. 2. 4 Although the Constitution empowers Congress to regulate federal lands, U.S.Const. art. IV, § 3, cl. 2, Congress determines whether or not to exercise this power. Texas Oil & Gas Corp. v. Phillips Petroleum Co., 277 F.Supp. 366, 368 (W.D.Okla.1967), aff'd per curiam, 406 F.2d 1303 (10th Cir.), cert. denied, 396 U.S. 829, 90 S.Ct. 80, 24 L.Ed.2d 80 (1969). Through the Mineral Lands Leasing Act of 1920, codified at 30 U.S.C. §§ 181-263, Congress has prescribed limited, but not exclusive, controls over the leasing of federal lands for oil and gas production. Wallis v. Pan American Petroleum Corp., 384 U.S. 63, 86 S.Ct. 1301, 16 L.Ed.2d 369 (1966); Texas Oil & Gas, 277 F.Supp. at 369. 5 Kirkpatrick relies upon 30 U.S.C. §§ 187 and 189 as indicating that Congress intended to submit federal oil and gas lands to state-forced communitization. Section 187 lists certain provisions that must appear in federal mineral leases and declares, "None of such provisions shall be in conflict with the laws of the State in which the leased property is situated." But this section primarily focuses on various safeguards for workers on federal oil and gas lands and does not relate to land use controls. See Ventura County v. Gulf Oil Corp., 601 F.2d 1080, 1085 (9th Cir. 1979), aff'd mem., 445 U.S. 947, 100 S.Ct. 1593, 63 L.Ed.2d 782 (1980). Section 189 states, in pertinent part, "Nothing in this chapter shall be construed or held to affect the rights of the States or other local authority to exercise any rights which they may have, including the right to levy and collect taxes upon improvements, output of mines, or other rights, property, or assets of any lessee of the United States." This proviso gives the states no power they do not already possess. Ventura County, 601 F.2d at 1086. It does not answer the question whether the states can communitize federal lands without federal consent. This Court relied upon sections 187 and 189 in affirming enforcement of an Oklahoma communitization order entered over the objection of lessees of federal lands. Texas Oil & Gas, 406 F.2d 1303. But, as both the trial and circuit court opinions stressed, there the Secretary had approved the state order. The decision does not control the instant case, in which the federal lessee approved the state order but the Secretary did not. 6 Section 226(j) specifically treats communitization of federal leases. In its most pertinent paragraph it provides: 7 "When separate tracts cannot be independently developed and operated in conformity with an established well-spacing or development program, any lease, or a portion thereof, may be pooled with other lands, whether or not owned by the United States, under a communitization or drilling agreement providing for an apportionment of production or royalties among the separate tracts of land comprising the drilling or spacing unit when determined by the Secretary of the Interior to be in the public interest, and operations or production pursuant to such an agreement shall be deemed to be operations or production as to each such lease committed thereto." 8 30 U.S.C. § 226(j) (emphasis added). 9 Kirkpatrick emphasizes the word "agreement" and argues that the Secretary's consent is required only for voluntary agreements, not for state-ordered communitization. The government argues for a broader construction. We agree with the government. 10 In a number of paragraphs section 226(j) delegates to the Secretary's discretion the power to approve, in order to promote conservation, modifications to federal mineral leases, unit or cooperative plans, and operating, drilling, or development contracts.2 To be consistent with the rest of section 226(j), Congress must have intended that the Secretary have approval authority over any communitization of federal lands, and that no state-ordered forced pooling would bind the government without the Secretary's consent.3 11 This construction is supported by the Supreme Court's analytical approach that focuses on whether applying state law to an issue affecting a federal mineral lease poses a "significant threat to any identifiable federal policy or interest." Wallis v. Pan American Petroleum Corp., 384 U.S. 63, 68, 86 S.Ct. 1301, 1304, 16 L.Ed.2d 369 (1966). If compulsory state pooling orders were applied to federally owned lands over the Secretary's objection, a state could impose acreage requirements and unit boundaries that conflict with the Secretary's judgment of the best standards for conservation purposes.4 If federal lessees are unable to secure the Secretary's approval for a voluntary communitization agreement, they should not be able to circumvent that requirement by obtaining a compulsory state pooling order. Cf. Samedan Oil Corp. v. Cotton Petrol. Corp., 466 F.Supp. 521 (W.D.Okla.1978) (communitization of Indian lands ineffective without Secretary's approval); Assiniboine and Sioux Tribes v. Calvert Exploration Co., 223 F.Supp. 909, 913 (D.Mont.1963) (same), rev'd on other grounds sub nom. Yoder v. Assiniboine and Sioux Tribes, 339 F.2d 360 (9th Cir. 1964). Also, because production extending a federal lease in a communitized unit may come from a well drilled on nonfederal land, if state orders were to apply to federal lands without the Secretary's approval, it would interfere with the Secretary's control over its own lessees and lease provisions requiring, for example, the lessee to drill in different production zones or to produce at particular rates.5 12 We conclude that a fair interpretation of the Mineral Lands Leasing Act of 1920 requires us to hold that a state communitization order may not bind federally owned land, or extend leases of such land within the unit, without the consent of the Secretary of the Interior. 13 AFFIRMED. Honorable George Templar, United States District Judge for the District of Kansas, sitting by designation 1 Kirkpatrick also argues the Secretary may not cancel its leases because (1) the communitization agreement the Secretary previously approved satisfies the requirement of production in paying quantities because a well drilled pursuant to that agreement remains capable of producing gas in paying quantities, even though the well has not done so for several years, and (2) the government did not give Kirkpatrick the requisite sixty-day notice of its intention to terminate the leases. These arguments were not made to the trial court. After reviewing the facts of this case, we see no manifest injustice that would cause us to depart from the normal rule that we do not determine issues presented for the first time on appeal. See Gomes v. Williams, 420 F.2d 1364, 1367 (10th Cir. 1970) 2 30 U.S.C. § 226(j) reads, in part, as follows: "(j) For the purpose of more properly conserving the natural resources of any oil or gas pool, field, or like area, or any part thereof (whether or not any part of said oil or gas pool, field, or like area, is then subject to any cooperative or unit plan of development or operation), lessees thereof and their representatives may unite with each other, or jointly or separately with others, in collectively adopting and operating under a cooperative or unit plan of development or operation of such pool, field, or like area, or any part thereof, whenever determined and certified by the Secretary of the Interior to be necessary or advisable in the public interest. The Secretary is thereunto authorized, in his discretion, with the consent of the holders of leases involved, to establish, alter, change, or revoke drilling, producing, rental, minimum royalty, and royalty requirements of such leases and to make such regulations with reference to such leases, with like consent on the part of the lessees, in connection with the institution and operation of any such cooperative or unit plan as he may deem necessary or proper to secure the proper protection of the public interest. The Secretary may provide that oil and gas leases hereafter issued under this chapter shall contain a provision requiring the lessee to operate under such a reasonable cooperative or unit plan, and he may prescribe such a plan under which such lessee shall operate, which shall adequately protect the rights of all parties in interest, including the United States. "Any plan authorized by the preceding paragraph which includes lands owned by the United States may, in the discretion of the Secretary, contain a provision whereby authority is vested in the Secretary of the Interior, or any such person, committee, or State or Federal officer or agency as may be designated in the plan, to alter or modify from time to time the rate of prospecting and development and the quantity and rate of production under such plan. All leases operated under any such plan approved or prescribed by the Secretary shall be excepted in determining holdings or control under the provisions of any section of this chapter. "When separate tracts cannot be independently developed and operated in conformity with an established well-spacing or development program, any lease, or a portion thereof, may be pooled with other lands, whether or not owned by the United States, under a communitization or drilling agreement providing for an apportionment of production or royalties among the separate tracts of land comprising the drilling or spacing unit when determined by the Secretary of the Interior to be in the public interest, and operations or production pursuant to such an agreement shall be deemed to be operations or production as to each such lease committed thereto. "Any lease issued for a term of twenty years, or any renewal thereof, or any portion of such lease that has become the subject of a cooperative or unit plan of development or operation of a pool, field, or like area, which plan has the approval of the Secretary of the Interior, shall continue in force until the termination of such plan.... "The Secretary of the Interior is hereby authorized, on such conditions as he may prescribe, to approve operating, drilling, or development contracts made by one or more lessees of oil or gas leases, with one or more persons, associations, or corporations whenever, in his discretion, the conservation of natural products or the public convenience or necessity may require it or the interests of the United States may be best subserved thereby. All leases operated under such approved operating, drilling, or development contracts, and interests thereunder, shall be excepted in determining holdings or control under the provisions of this chapter. "The Secretary of the Interior, to avoid waste or to promote conservation of natural resources, may authorize the subsurface storage of oil or gas, whether or not produced from federally owned lands, in lands leased or subject to lease under this chapter...." (Emphasis added.) 3 The legislative history sheds no light. See S.Rep.No.1549, 86th Cong., 2d Sess., reprinted in (1960) U.S.Code Cong. & Ad.News 3313, 3313; Cong.Rep.No.2135, 86th Cong., 2d Sess., reprinted in (1960) U.S.Code Cong. & Ad.News 3313, 3335 4 30 U.S.C. § 189 gives the Secretary express authority "to fix and determine the boundary lines of any structure, or oil or gas field, for purposes of this chapter." 5 30 U.S.C. § 188 permits the Secretary to cancel leases "whenever the lessee fails to comply with any of the provisions of this chapter, of the lease, or of the general regulations promulgated under this chapter."	{ "pile_set_name": "FreeLaw" }
549 F.2d 797 U. S.v.Green No. 76-1996 United States Court of Appeals, Third Circuit 2/22/77 1 D.N.J. AFFIRMED	{ "pile_set_name": "FreeLaw" }
IN THE COURT OF CRIMINAL APPEALS OF TEXAS NO. PD-0738-10 LAVONNE BYRD, Appellant v. THE STATE OF TEXAS ON APPELLANT'S PETITION FOR DISCRETIONARY REVIEW FROM THE FOURTH COURT OF APPEALS BEXAR COUNTY Cochran, J., delivered the unanimous opinion of the Court. O P I N I O N In this theft case, the State alleged that appellant appropriated certain property from the owner, "Mike Morales." At trial, the State proved that Wal-Mart owned the property. Mike Morales was never mentioned. The jury charge tracked the allegations in the information, and the jury returned a verdict finding appellant guilty of theft of property from Mike Morales. Appellant claimed on appeal that the evidence was legally insufficient to support her conviction because the State had alleged the wrong owner. A sharply divided en banc court of appeals held that the discrepancy between the alleged owner and the proof at trial was an immaterial variance. (1) The three dissenting justices argued that this was an instance of the failure of proof and that appellant was entitled to an acquittal. (2) We granted appellant's petition to resolve this difficult issue. (3) We conclude that, under the principles set out in our trilogy of Malik, Gollihar, and Fuller, (4) the State failed to prove its allegation that Mike Morales was the owner of the property appellant stole. Thus, the evidence is insufficient to support her conviction. I. Appellant was charged with misdemeanor theft for shoplifting. The information read, in pertinent part: "Lavonne Byrd, hereinafter referred to as defendant, with intent to deprive the owner, Mike Morales, of property namely, three (3) pairs of pants and one (1) DVD, did unlawfully, without the effective consent of the owner, appropriate said property[.]" At trial, the State called Richard Salinas, one of Wal-Mart's loss prevention officers. He watched appellant as her two female cohorts scooped up items-primarily children's clothing, cosmetics, and jewelry-from different departments in the store. They then passed those items to appellant to hide underneath a blanket covering a baby's car seat propped up in a shopping cart. Mr. Salinas and another Wal-Mart loss prevention officer, Leo Padron, attempted to stop all three women after they left the store without paying for the items. Appellant was carrying the car seat. When Mr. Padron stopped appellant right outside the store, she said "Here, you can have your stuff back," and she emptied out all of the merchandise that had been hidden in the car seat. The two other women fled. The total value of the forty-three items that were hidden underneath the blanket was $306.61. Mr. Salinas testified that "Wal-Mart hadn't given her consent to take that property." The jury charge tracked the information, including the allegation that the owner of the property was "Mike Morales." The jury found appellant guilty of theft and the trial judge sentenced her to six months in jail, but probated the sentence for one year. At no time during the trial did anyone ever refer to a "Mike Morales." And no witness ever made any connection between a "Mike Morales" and Wal-Mart or any of the property that appellant shoplifted. No one-not the prosecutor, the defense counsel, the trial judge, or even the jury-seemed to notice this astonishing discrepancy between the allegation of "Mike Morales" as the owner of the property in both the information and the jury charge and the absence of any mention of him or his possible connection to the property at trial. (5) On appeal, appellant argued that the evidence was legally insufficient under Jackson v. Virginia (6) when measured by the elements of the offense as defined in the hypothetically correct jury charge required by Malik v. State. (7) The en banc Fourth Court of Appeals, in a four-to-three decision, held that the variance between the information and jury charge allegation that "Mike Morales" was the owner of the property and proof that "Wal-Mart" was the owner of the property was not material. Therefore the evidence was legally sufficient to support appellant's conviction. (8) The majority stated that "the name of the owner is not a substantive or statutory element of the offense of theft," and therefore "the allegation of the name of the owner of the property is not required to be included in a hypothetically correct jury charge." (9) It affirmed appellant's conviction. The three dissenters, on the other hand, argued that this discrepancy between the ownership allegation and the evidence was an instance of "a failure of proof rather than a variance," but that, even if it was a variance issue, it was a material variance under Fuller v. State (10) and Bailey v. State. (11) The dissent would reverse appellant's conviction and enter an acquittal. Both the majority and dissenting opinions did an admirable job of thoroughly addressing the issue, but they cannot both be right. We granted discretionary review in an attempt to clarify this difficult and still confusing area of the law. II A. Legal Sufficiency, Federal Due Process, and State Law. In Jackson v. Virginia, the Supreme Court held that federal due process requires that the State prove, beyond a reasonable doubt, every element of the crime charged. (12) The Due Process Clause protects a person from conviction "'except upon proof beyond a reasonable doubt of every fact necessary to constitute the crime with which he is charged." (13) But the Court also stated that this constitutional standard "must be applied with explicit reference to the substantive elements of the criminal offense as defined by state law." (14) Thus, the "elements" or "facts necessary" to constitute a particular crime are determined by state law. Under Texas state law, we measure the sufficiency of the evidence "by the elements of the offense as defined by the hypothetically correct jury charge for the case." (15) Such a charge is one that "accurately sets out the law, is authorized by the indictment, does not unnecessarily increase the State's burden of proof or unnecessarily restrict the State's theories of liability, and adequately describes the particular offense for which the defendant was tried." (16) Thus, we apply the Jackson standard of review to the hypothetically correct jury charge. (17) But sometimes the words in the indictment do not perfectly match the proof at trial. 1. Variances. A "variance" occurs whenever there is a discrepancy between the allegations in the indictment and the proof offered at trial. (18) Variances are mistakes of one sort or another. Sometimes they make no difference at all, sometimes they make all the difference. Suppose, for example, the indictment alleges that the defendant killed Dangerous Dan McGrew. At trial, the State proves that the defendant killed Little Nell, not Dangerous Dan. That is a big mistake. Murder may be murder, but killing one person is not the same offense as killing an entirely different person. (19) In such a case, the State has failed to prove its allegation that the defendant killed Dangerous Dan McGrew, and the defendant is entitled to an acquittal under both Jackson and Malik. (20) Of course he may be reindicted and tried for the murder of Little Nell, as he was never placed in jeopardy for killing her. (21) A variance of this type is actually a failure of proof because the indictment sets out one distinct offense, but the proof shows an entirely different offense. Now suppose that the State proves that the defendant killed Dan McGrew, but every witness agreed that Dan was not at all dangerous and had never been called Dangerous. Or suppose that the evidence showed that the murder victim was really Don McGrew, Daniel Macgrew, or Dan Magoo. These are all examples of variances between the allegation and the proof, but they are little mistakes, generally not likely to prejudice a defendant's substantial rights by either (1) failing to give him notice of who it was he allegedly killed, or (2) allowing a second murder prosecution for killing the same person with a different spelling of his name. (22) Little mistakes or variances that do not prejudice a defendant's substantial rights are immaterial. (23) On the other hand, a conviction that contains a material variance that fails to give the defendant sufficient notice or would not bar a second prosecution for the same murder requires reversal, even when the evidence is otherwise legally sufficient to support the conviction. (24) 2. Legal sufficiency and variances. In Gollihar v. State, (25) we held that, under state law, the hypothetically correct jury charge-the standard by which to measure sufficiency of evidence under Jackson-need not incorporate allegations that give rise to immaterial variances. (26) And in Fuller v. State, we held that, under state law, immaterial variances are to be disregarded in reviewing the sufficiency of the evidence. (27) In Fuller, for example, the discrepancy between the indictment allegation that the victim of injury to an elderly person was named "Olen M. Fuller" and the evidence that he was called "Mr. Fuller" or "Buddy" was an immaterial variance which did not make the evidence insufficient under Malik or Gollihar. (28) Taken together, Malik, Gollihar, and Fuller brought Texas law into the mainstream of modern American variance law and sufficiency of the evidence standards. Under traditional Texas variance doctrine, this Court routinely reversed convictions when the name of the person alleged in the indictment did not exactly match the proof of that person's name at trial. For example, in Escobar v. State, (29) this Court held that there was a fatal variance between the allegation in the burglary indictment that the complainant's name was Dan Wiederhold, when the evidence showed that this person was really named Donald Ray Wiederhold. (30) The conviction was reversed and the defendant acquitted, but we explicitly stated that double jeopardy would not bar retrial under a new indictment alleging the complainant as Donald Ray Wiederhold. (31) Similarly, in Fulmer v. State, (32) we noted Escobar and held that double jeopardy did not bar reprosecution under a new indictment alleging "Kim Ngo" when the defendant was originally acquitted of the aggravated sexual assault of "Kim Nguyet," but the evidence showed that her name really was "Kim Ngo." (33) Thus, under prior law, when there was a slight variance between a person's name as alleged and as proved at trial, the defendant was entitled to an acquittal under that charging instrument, but could be retried under a more perfect pleading. (34) Although some cases had held that a minor variance was "immaterial" and thus did not make the evidence insufficient, (35) the only recognized exception to the "fatal variance" rule was the doctrine of idem sonans-when the two names sounded alike although they differed in their spelling. (36) In those instances, the spelling variance was immaterial, and the conviction would be affirmed. The fatal-variance doctrine, including the idem sonans exception, exalted form over substance when there was no dispute that the person named in the indictment or information was, in fact, the very same person identified at trial by a slightly different name. But in the halcyon days of yore-before the 1985 constitutional and legislative changes-indictments were construed very strictly and almost any mistake in them was called "fundamental" and required reversal of a "void" conviction under an indictment with a mistake. (37) Double jeopardy did not apply, however, because it was said that the first indictment charged a "different" offense from the second one-even though the difference was merely a spelling error-as proof of one name is not proof of another. (38) But after the 1985 legislative abolition of the "fundamental error" doctrine in indictment law, the materiality of defects in indictments and jury charges has been analyzed by looking to the essential elements of the particular criminal offense-the gravamen of that offense-and the hypothetically correct jury charge under the specific indictment or information. In turn, the sufficiency of the evidence has been measured in the same manner. Thus, we turn to the essential elements of the offense of theft. B. Legal Sufficiency and the Elements of Theft. A person commits theft if he unlawfully appropriates property with the intent to deprive the owner of the property. (39) The State argues that the gravamen of theft is the unlawful taking of property. (40) Appellant argues that the gravamen of theft is denying the owner the use and enjoyment of his property. (41) They are both correct. "[T]he gravamen of theft is in depriving the true owner of the use, benefit, enjoyment or value of his property, without his consent." (42) Thus, the gravamen of theft is two-pronged- taking certain specified property away from its rightful owner or depriving that owner of its use or enjoyment. Ownership and appropriation of property are both important. (43) Appellant also argues that the name of the owner is a substantive element of the offense of theft. That is not correct. The existence of the specific owner is an element, but not his name. Section 31.03(a) of the penal code sets out the offense of theft: "A person commits theft if he unlawfully appropriates property with intent to deprive the owner of property." (44) And subsection (b)(1) states, "appropriation of property is unlawful if . . . it is without the owner's effective consent." (45) There are no names set out in the theft statute. "Owner" is defined as "a person who . . . has title to the property, possession of the property, whether lawful or not, or a greater right to possession of the property than the actor[.]" (46) Nowhere in the penal code is the name of the owner made a substantive element of theft. (47) However, the Code of Criminal Procedure, as a matter of state law, requires the State to allege the name of the owner of property in its charging instrument. (48) Under Texas pleading rules, ownership may be alleged in either the actual owner or a special owner. (49) A special owner is a person who has actual custody or control of property that belongs to another person. (50) For example, if Dad owns a car and loans it to Daughter, and Defendant steals it from the shopping mall where Daughter parked it, the State could allege either Dad-the title or "actual owner"-or Daughter-the "special owner" who actually possessed the car at the time it was stolen-in its theft indictment. When an entity, such as a corporation, owns property, the traditionally preferable practice had been to allege ownership in a natural person acting for the corporation. (51) But as Judge Clinton noted, this practice developed in the early twentieth century before the adoption of the 1974 Penal Code when the definition of "owner" for purposes of the theft statutes was much narrower. Judge Clinton explained that, under the current Penal Code, a corporation may both own and have actual possession of property. (52) Thus it is perfectly permissible, and sometimes preferable, to now allege the corporation-Wal-Mart, for example-as the owner of the property and then call any agent or employee who holds a relevant position in the company to testify that the corporation did not give effective consent for a person to steal or shoplift its property. (53) Although the name of the owner is not a substantive element of theft, the State is required to prove, beyond a reasonable doubt, that the person (or entity) alleged in the indictment as the owner is the same person (or entity)-regardless of the name-as shown by the evidence. For example, in the Fuller, case, the indictment alleged injury to an elderly person, namely "Olen B. Fuller." The State proved that the defendant injured "Buddy Fuller" or "Mr. Fuller." But there was no dispute at trial that the person who was injured was the very same person as was alleged in the indictment, despite whatever discrepancies might exist in the "real" and "alleged" names. (54) Suppose the elderly man in that case had testified that his real name was Quincy Magoo, but everyone called him Olen M. Fuller. That is a variance, but it may well be immaterial if the record shows that the person-whether known as Mr. Magoo or Mr. Fuller-is the same person as alleged in the indictment. (55) However, if the evidence shows that the defendant actually injured Mr. Magoo, who is not the same person as Mr. Fuller, the evidence is insufficient under Malik, Gollihar, and Fuller. (56) In sum, it is the identity of the person, not his formal name, that controls and guides the sufficiency of the evidence review. With this background, we turn to the present case. III. Something puzzling, unexplained, and, thankfully, rare happened in this otherwise mundane armed robbery case: the information named the wrong victim and no one in the trial court seemed to have noticed. (57) Dejá vu all over again in the present case. As the State gracefully concedes, "a nearly unbelievable set of facts appears to have occurred in the trial of this case." (58) Not only did the State fail to offer any evidence that "Mike Morales"-the person alleged in the theft indictment-had any ownership interest in or relationship to the property appellant shoplifted, but the jury, without any apparent concern for the missing "Mike Morales," convicted her nevertheless. According to the State, the "only explanation for this exceptional circumstance seems to be that it was so clear to all the parties involved-and possibly the jury as well-that the real victim (both alleged and proven) was Wal-Mart that the discrepancy seemed not to matter." (59) An alternate, less generous explanation, is that everyone was asleep at the wheel. But is the State correct? "What's in a name? That which we call a rose/By any other name would smell as sweet." (60) No matter what we call it, this flower is still a rose. But a rose does not smell like a pickle. Are roses and pickles interchangeable? Is the evidence legally sufficient under Jackson, Malik, and Fuller if everyone knew that it was really Wal-Mart who owned the stolen property, so it just did not matter who was alleged as the owner in the information and jury charge? The information could have alleged "Simon Legree," "Carnac the Magnificent," or "Macy's" for all we care, because it was undisputed at trial that Wal-Mart owned the property. No. The parties, the court, and the jury must know the identity of the owner, regardless of how the State names him. The State analogizes this case to the situation in Stevens v. State, (61) in which the State used a pseudonym-"100589-040584"-for the victim in its indictment, but at trial the parties and judge referred to him by his legal name. (62) In that case, unlike the present one, both the pseudonym and the child's "real" name referred to the very same person. (63) It was like an alias, and the defendant was informed, well before trial, of the legal name of the person to whom the pseudonym belonged. (64) The State argues that the "name Mike Morales in the charging instrument was no more than a pseudonym for Wal-Mart. Mike Morales essentially is Wal-Mart." (65) Therefore, the court should hold that the fatal variance doctrine is inapplicable "so long as the defendant's due process right to notice [wa]s satisfied." (66) The problem with that argument is that no one at trial ever heard of Mike Morales or that he had anything to do with Wal-Mart. (67) The State notes that appellant certainly was not surprised by the evidence at trial. She knew, as did everyone else, that the property really belonged to Wal-Mart. Her position was she did not steal anything, not that she stole it from some other person or store. Thus, the notice prong of Gollihar's "immaterial variance" doctrine is not at issue in this case. (68) What is at issue is whether "the deficiently drafted indictment would subject the defendant to the risk of being prosecuted later for the same crime." (69) Would this information, coupled with the trial transcript, prevent the State from charging appellant with a theft from Wal-Mart or one of the loss prevention officers who testified at trial? Under Texas law, it would not. The State relies upon People v. Santiago, (70) in which the State had pled the wrong person-"Alfredo Jimenez"-as the robbery victim when, in fact, it proved at trial that "Teodulo Rodriquez" was the actual victim. In that case, the Illinois appellate court, although expressing its amazement at the situation, held that this was not a fatal variance because it was clear at trial that Mr. Rodriquez was, in fact, the robbery victim. First, when the trial judge read the information to the defendant, he substituted the name of the correct victim, "Teodulo Rodriquez," for the name of the incorrectly alleged victim. (71) Second, all of the evidence at trial showed that it was Mr. Rodriquez who was the robbery victim. (72) Third, the existence of Mr. Jimenez was accounted for as he testified that he was the manager of the meat market where appellant sometimes worked, but that he knew nothing of the robbery itself. Given these circumstances, the formal defect in the charging instrument (73) did not violate the defendant's due-process rights because he had adequate notice as to the identity of the real victim, and his double-jeopardy rights were protected because "[b]y using the trial transcript and by referring to the record, [the defendant] would be able to use this conviction as a bar to any future prosecution." (74) Aye, there's the rub. In Santiago, anyone who looked at the trial record would know that the judge read and followed the written complaint, which identified the correct victim; all of the evidence concerned the robbery of the correct victim; the incorrect victim was a witness and testified that he had nothing to do with the robbery and was not a victim. The court of appeals noted that, in Illinois "[t]here was a time when a charging document defined the limits of jeopardy, but that time 'has passed and a prior prosecution on the same facts may be proved by resort to the record.'" (75) Current Texas law on double jeopardy is not the same as that set out in Santiago. In Bailey v. State, (76) a case that was decided after the Malik, Gollihar, and Fuller trilogy, this Court rejected the notion that, when the State pleads the wrong victim in a theft-type case, double jeopardy will prevent retrial under an indictment that alleges the correct victim. This Court noted that long-standing Texas precedent allowed such a retrial, and it saw no reason to depart from that hoary tradition. In Bailey, several defendants had been charged with engaging in organized criminal activity resulting in theft of money from the City of Houston. (77) At a bench trial, the evidence showed that the defendants were employed by C & C Services, owned by Rick Collins, to work as flagmen on city-street construction projects. (78) It was alleged that the defendants were involved in a scheme to falsify their time sheets. Rick Collins then issued their paychecks based on false time sheets, and the City of Houston reimbursed C & C for those costs. (79) At the end of the State's case, the trial judge granted the defendants' motion for acquittal. He stated that the evidence was sufficient to show that the defendants misappropriated money, but that they did not steal money from the City of Houston. (80) The State then reindicted the defendants for exactly the same offense but alleged that the owner of the stolen money was Rick Collins, rather than the City of Houston. The defendants filed applications for a writ of habeas corpus, alleging that double jeopardy barred any retrial of the very same theft offense simply by switching out the "wrong" owner-the City of Houston-for the "right" owner-Rick Collins, the owner of C & C Services. (81) In a five-to-two decision, the defendants lost. (82) The Bailey majority relied upon numerous prior Texas decisions (83) holding that evidence showing that the defendants stole money from one victim would not sustain a conviction under an indictment alleging a different victim. (84) "In other words, proof of one will not prove the other. Thus, the offenses are not the same for double jeopardy purposes." (85) This holding is in accordance with longstanding Texas law. The dissent in Bailey argued that there was only one theft from a single victim, but the State alleged an incorrect victim in its first indictment. (86) One might say that the State just got it wrong and, under Blockburger v. United States (87) and its "same elements" test, was not entitled to a second bite at the apple with a better indictment. Under a strict "same elements" reading of Blockburger, that is correct. But, as the dissent acknowledged, we do not apply Blockburger when the double-jeopardy issue involves the allowable unit of prosecution, (88) as it may when it comes to necessary descriptions of a statutory element that is the gravamen of the offense. For example, as noted above, Texas law requires the State to allege the name of the owner in a theft information or indictment. Ownership and deprivation of specific property normally constitute the gravamen of theft. (89) Therefore, the jury charge must incorporate those statutorily required descriptions of both ownership and property. (90) And the sufficiency of the evidence is assessed under the hypothetically correct jury charge-a jury charge that incorporates the name of the owner and a description of the property in a theft prosecution. (91) Those descriptions are necessary both to give the defendant notice of the charged offense and to protect him against double jeopardy. In this case, the State failed to prove appellant stole any property from Mike Morales, whom it had alleged as the owner of the shoplifted items. Under Malik, Gollihar, and Fuller, the State failed to prove the specific offense charged, and appellant is entitled to an acquittal of that specifically charged offense. The State cannot reprosecute for that alleged offense. We need not address the issue of whether the State may reprosecute under a different charging instrument. (92) The dissent in Bailey aptly noted "the havoc that the word 'variance' has caused in our caselaw." (93) Indeed, that is correct. We agree with the Bailey dissent that "[t]he word 'variance' ought to be used to describe instances in which there is a minor discrepancy between the facts alleged and those proved, such as a difference in spelling, in numerical digits, or in some other minor way." (94) But when the discrepancy between the charging instrument allegation and the proof at a theft trial is that of an entirely different person or entirely different property, that discrepancy is not merely a variance, it is a failure of proof. Because the State failed to prove that "Mike Morales" had any ownership interest in the property that appellant stole, the evidence is insufficient under Malik, Gollihar, and Fuller. We therefore reverse the judgment by the court of appeals and enter a judgment of acquittal. Delivered: March 30, 2011 Publish 1. Byrd v. State, 319 S.W.3d 102 (Tex. App.-San Antonio 2010). 2. Id. at 112. 3. Appellant's two grounds for review are as follows: 1. The court of appeals erred in holding that the property owner's identity is not a substantive element of the offense of theft under federal constitutional law, because no rational trier of fact could have found the substantive elements of the offense beyond a reasonable doubt without proof of identity of the owner named in the charging instrument. 2. The court of appeals erred in holding that the property owner's identity is not a substantive element of the offense of theft under state law, because the identity of the owner was required in a hypothetically correct jury charge in a theft case. 4. Malik v. State, 953 S.W.2d 234 (Tex. Crim. App. 1997); Gollihar v. State, 46 S.W.3d 243 (Tex. Crim. App. 2001); Fuller v. State, 73 S.W.3d 250 (Tex. Crim. App. 2002). 5. On appeal, the State noted that the name "Mike Morales" appears in the police offense report that was marked and used to refresh witnesses' memories, but was never offered into evidence at trial. In this report, Mr. Morales was listed as the manager of the Wal-Mart store. 6. 443 U.S. 307 (1979). 7. 953 S.W.2d 234, 240 (Tex. Crim. App. 1997). 8. Byrd v. State, 319 S.W.3d 102, 111-12 (Tex. App.-San Antonio 2010). 9. Id. 10. 73 S.W.3d 250 (Tex. Crim. App. 2002). 11. 87 S.W.3d 122 (Tex. Crim. App. 2002). 12. Jackson, 443 U.S. at 316. 13. Id. at 315 (quoting In re Winship, 397 U.S. 358, 364 (1970)). 14. Id. at 324 n.16. 15. Malik v. State, 953 S.W.2d 234, 240 (Tex. Crim. App. 1997). 16. Id. 17. Id.; see also Gollihar v. State, 46 S.W.3d 243, 257 (Tex. Crim. App. 2001). 18. Gollihar, 46 S.W.3d at 246 (citing 42 George E. Dix & Robert O. Dawson, Texas Practice, Criminal Practice and Procedure § 31.81 at 178 (1995)). 19. See The Hoppet v. United States, 11 U.S. 389, 394 (1812) (Marshall, C.J.) ("The rule that a man shall not be charged with one crime and convicted of another, may sometimes cover real guilt, but its observance is essential to the preservation of innocence. It is only a modification of this rule, that the accusation on which the prosecution is founded, should state the crime which is to be proved and state such a crime as will justify the judgment to be pronounced."); see also Dunn v. United States, 442 U.S. 100, 105 (1979) ("A variance arises when the evidence adduced at trial establishes facts different from those alleged in an indictment"; defendant could not be convicted in prosecution for making false statements to grand jury, when government alleged that defendant made an inconsistent statement at a September 30 interview-which was not an "ancillary proceeding"-but proved that he made inconsistent statements at an October preliminary hearing-which did qualify as an "ancillary hearing"; Supreme Court reversed the circuit court which had held that this was "a nonprejudicial variance between the indictment and proof at trial"); Stirone v. United States, 361 U.S. 212, 217 (1960) (indictment charged a violation of Hobbs Act by interfering with interstate shipments of sand into Pennsylvania; evidence and jury instructions would have allowed conviction for interfering with shipments of steel from Pennsylvania into other states; this variance created a substantial likelihood that defendant may have been convicted of a charge not contained in the indictment). 20. Gollihar, 46 S.W.3d at 254-56 (discussing post-Malik decisions and stating that "we have interpreted Malik to control sufficiency of the evidence analysis even in the absence of alleged jury charge error"; noting that hypothetically correct jury charge in a kidnapping case must include the victim's name, not merely the statutory term "another" and sufficiency of the evidence is reviewed as to proof that the named victim was abducted). 21. See Bailey v. State, 87 S.W.3d 122, 126-28 (Tex. Crim. App. 2002) (defendants' acquittal for theft from City of Houston did not bar reprosecution for theft of same property from "Rick Collins" because thefts from different persons or entities were not the "same offense"; collecting and discussing Texas cases for the proposition that "if the name of the injured party in the two indictments or information is not the same, the plea of former acquittal is ordinarily bad on its face."); Fuller v. State, 73 S.W.3d 250, 256-57 (Tex. Crim. App. 2002) (Keller, P.J., concurring) (discussing non-statutory facts defining allowable units of prosecution and giving the example of a defendant who is indicted for murdering Mary, but proven to have murdered John; in such a case, "protecting the defendant's double jeopardy rights requires acquitting the defendant of the murder of Mary. After such an acquittal, the State could seek an indictment alleging the murder of John."); see generally, 43 Dix & Dawson, supra note 18, § 31.233 at 152-56 (stating traditional Texas rule that double-jeopardy principles do not bar reprosecution when defendant is acquitted on the basis of a variance between the pleading and proof at trial and noting that the case law "has generally involved variance acquittals based on . . . name differences."). 22. See Berger v. United States, 295 U.S. 78, 82 (1935) ("The true inquiry, therefore, is not whether there has been a variance in proof, but whether there has been such a variance as to 'affect the substantial rights' of the accused. The general rule that allegations and proof must correspond is based upon the obvious requirements (1) that the accused shall be definitely informed as to the charges against him, so that he may be enabled to present his defense and not be taken by surprise by the evidence offered at the trial; and (2) that he may be protected against another prosecution for the same offense."); Bennett v. United States, 227 U.S. 333, 338 (1913) (variance between White Slave Act indictment allegation that defendant transported woman named "Opal Clarke" and proof that she was known as "Opal" and "Nellie" but that her true name was Jeannette Laplante" was immaterial variance because the defendant knew the victim as "Opal Clarke"). 23. See Bennett, 227 U.S. at 338; Gollihar v. State, 46 S.W.3d 243, 257 n.23 (Tex. Crim. App. 2001) (stating that immaterial variance rule had existed in Texas as far back as 1911; "'A variance is not now regarded as material unless it is such as might mislead the defense, or might expose the accused to the danger of being put twice in jeopardy for the same offense.'") (quoting Feeny v. State, 138 S.W. 135, 138 (Tex. Crim. App. 1911) (op. on reh'g)). 24. See Fuller, 73 S.W.3d at 253 n.2. 25. 46 S.W.3d 243 (Tex. Crim. App. 2001). 26. Id. at 258 ("in light of the principles underlying Malik . . . a hypothetically correct charge need not incorporate allegations that give rise to immaterial variances."). We recently discussed Gollihar in Cada v. State, ___ S.W.3d ___, No. PD-0754-10, 2011 WL 409002 (Tex. Crim. App. 2011), in which we explained, In Gollihar, the indictment for theft of a go-cart stated that the go-cart was "Model 136202," but the State's evidence showed that its model was 136203. That variance was immaterial because the State did not have to plead any model or serial number to describe the property stolen and there was no suggestion that the defendant was surprised or harmed by the evidence offered at trial. The model number was not an element of the offense, and the defendant's guilt or innocence of the theft charge did not depend upon the specific model of the go-cart. Further, there was no suggestion that the defendant possessed numerous go-carts with different model numbers, or that he was misled about which specific go-cart the State would prove he stole. Id. at *5. 27. Fuller, 73 S.W.3d at 254 ("In this case, the prosecution's failure to prove the victim's name exactly as alleged in the indictment does not make the evidence insufficient under Gollihar."). 28. Id. 29. 578 S.W.2d 139 (Tex. Crim. App. 1979). 30. Id. at 140. 31. Id. at 140 n.1. 32. 731 S.W.2d 943 (Tex. Crim. App. 1987). 33. Id. at 946. 34. See also Pitt v. State, 362 S.W.2d 117, 117 (Tex. Crim. App. 1962) (fatal variance when the information alleged that the worthless check was given to "Sue Simpson," but the proof showed that this person was really named "Reva Sue Simpkins"; conviction reversed and case remanded); see generally Dix & Dawson, supra note 18, § 31.233 at 152 ("Traditional Texas law since at least 1869 has been that despite the prohibitions against double jeopardy, an acquittal because of a variance between the pleading and the proof does not bar reprosecution on a new charging instrument alleging that version of the offense which the State's evidence showed at the first trial."). 35. See, e.g., Rowan v. State, 124 S.W. 668, 673 (Tex. Crim. App. 1910) (quoting treatise for proposition that "[a] variance is not now regarded as material unless it is such as might mislead the defense, or might expose the accused to the danger of being put twice in jeopardy for the same offense," but employing doctrine of idem sonans to establish immateriality). The court also quoted another treatise as a basis for adopting the "modern" doctrine of idem sonans: "There is a rule of growing importance by which courts, for many years, have evinced, by their decisions, a disposition to recede from the fading adherence to common-law technicalities, and hold rather to substance than mere form. Modern decisions conform to the rule that a variance, to be material, must be such as to mislead the opposite party to his prejudice, and hence the doctrine of idem sonans has been much enlarged by modern decisions, to conform to the above salutary rule. The law does not treat every slight variance, if trivial, such as the omission of a letter in the name, as fatal. The variance should be a substantial and material one to be fatal." Id. (quoting 3 Rice on Evidence § 123). The Rowan case set out the variance doctrine and its impact upon evidentiary sufficiency that this Court ultimately adopted in Malik, Gollihar, and Fuller, but cases decided after Rowan frequently forgot the logical underpinning for the idem sonans rule-immateriality of the variance-and applied only the rigid idem sonans exception instead of the broader immateriality doctrine. See generally Dix & Dawson, supra, note 18, § 31.162 for a discussion of the traditional materiality law concerning variances. 36. See, e.g., Pye v. State, 154 S.W. 222 (Tex. Crim. App. 1913) (affirming forgery conviction in which the name of the complainant was "Rene Perry," but the name signed to the alleged forged note in the indictment was "Reen Perrey"). In Pye, this Court explained, The law not regarding orthography, no harm comes from misspelling a name, provided it is idem sonans with the true spelling . . . . If the names may be sounded alike without doing violence to the power of the letters found in the variant orthography, then the variance is immaterial . . . . the true rule being that the misspelling, to be material, must have changed the word intended into another word having a different meaning. Id. at 224-25. For a discussion of the confusion and strange results frequently wrought by the idem sonans rule, see Martin v. State, 541 S.W.2d 605 (Tex. Crim. App. 1976). 37. For a thorough discussion of the historical treatment of "fundamental defects" in the indictment and the 1985 constitutional and legislative changes, see generally Studer v. State, 799 S.W.2d 263 (Tex. Crim. App. 1990) (setting out prior cases and noting that, before the 1985 legislative changes, "[a] substance defect was considered 'fundamental error' since a charging instrument with such a defect failed to confer jurisdiction upon the trial court, and any conviction had upon that instrument was therefore void. Also apparent from the caselaw is that this Court has used the terms 'substance defect,' 'fundamental error,' and 'fatally defective' interchangeably when addressing errors in charging instruments which led to void convictions."). 38. See Fulmer, 731 S.W.2d at 948 (Clinton, J., concurring); see generally, Dix & Dawson, supra note 18 at § 31.233. 39. Tex. Penal Code § 31.03(a). 40. State's Brief at 12 ("The grammatical construction of the theft statute also suggests that appropriation of property is the gravamen and focus rather than the owner or victim. . . . This Court should conclude that 'appropriates property' is the gravamen of the offense of theft. Then, it will be clear that it is the property taken, not the name of the victim, that identifies the allowable unit of prosecution in a theft case."). 41. Appellant's Brief at 11-12 ("There was a failure of proof under federal constitutional law, because the owner's name is a substantive element of the offense. . . . [T]his Court's holding in Ward [829 S.W.2d 787 (Tex. Crim. App. 1992), overrruled on other grounds by Riney v. state, 28 S.W.3d 561 (Tex. Crim. App. 2000)] supports the contention that the owner's identity or name is a substantive element."). 42. Stewart v. State, 44 S.W.3d 582, 588-89 (Tex. Crim. App. 2001) (quoting McClain v. State, 687 S.W.2d 350, 353 (Tex. Crim. App. 1985)); see also Thomason v. State, 892 S.W.2d 8, 10 (Tex. Crim. App. 1994) (a theft occurs when "a person, with the intent to deprive the owner of property, unlawfully appropriates that property, without the effective consent of the owner."); Musick v. State, 51 S.W.2d 715, 716 (Tex. Crim. App. 1932) ("It is elementary, as well as statutory, that the essential element of theft is that the property be taken not only fraudulently but without the consent of the owner, with the intent to deprive the owner of the value and appropriate the property to the benefit of the taker."). 43. The gravamen of the offense normally dictates the number of allowable units of prosecution. See Jones v. State, 323 S.W.3d 885, 889 (Tex. Crim. App. 2010) ("Absent an explicit statement that 'the allowable unit of prosecution shall be such-and-such,' the best indicator of legislative intent with respect to the unit of prosecution seems to be the focus or 'gravamen' of the offense."). Thus, with robbery, the gravamen of the offense is the victim; if two people are robbed of one item, there are two robberies. Ex parte Hawkins, 6 S.W.3d 554, 560 (Tex. Crim. App. 1999). But that is not true with theft. If one item of property is jointly owned by two people, the defendant does not commit two separate thefts when he appropriates that one item. Thus, if the defendant steals a Jeep that is jointly owned by Mom and Dad, he has committed one theft, even though either Mom or Dad could be named as the owner. Conversely, if Mom and Dad each own a Jeep, and the defendant steals both of them, he may be convicted of two thefts. See Iglehart v. State, 837 S.W.2d 122, 129 n.7 (Tex. Crim. App. 1992) (noting that the State may successively prosecute a person for the discrete number of items stolen from their owners during a single transaction). Of course, there may be special statutory theft provisions to which the normal rule does not apply. For example, Penal Code section 31.03(b)(3) sets out an offense for appropriating property that is explicitly represented by law-enforcement personnel as being stolen, even though it is not. In that case, the gravamen of the offense might not include actual ownership. 44. Tex. Penal Code § 31.03(a). 45. Tex. Penal Code § 31.03(b)(1). 46. Tex. Penal Code § 1.07(a)(35)(A). 47. See Freeman v. State, 707 S.W.2d 597, 602-03 (Tex. Crim. App. 1986) (plurality op.) (noting that the name of the owner of property is not a part of the definition of theft, although the name of the owner must be alleged in the charging instrument). 48. Tex. Code Crim. Proc. art. 21.08 ("Where one person owns the property, and another person has the possession of the same, the ownership thereof may be alleged to be in either. Where property is owned in common, or jointly, by two or more persons, the ownership may be alleged to be in all or either of them. When the property belongs to the estate of a deceased person, the ownership may be alleged to be in the executor, administrator or heirs of such deceased person, or in any one of such heirs. Where the ownership of the property is unknown to the grand jury, it shall be sufficient to allege that fact."). Similarly, article 21.09 requires the State to describe the personal property stolen by "name, kind, number, and ownership." Tex. Code Crim. Proc. art. 21.09. Thus, a theft indictment or information must both name the owner and describe the property as both elements constitute the gravamen of the offense. 49. See Freeman, 707 S.W.2d at 602-03 (under article 21.08, "[i]t is now axiomatic that the name of the title owner of the property or the lawful possessor of the property from whom it was unlawfully taken must be alleged in the charging instrument. . . . [A]n allegation of ownership may be alleged in either the actual owner or in a special owner of the property. However, the State, once having alleged ownership in either the actual owner or a special owner then has the burden of proving beyond a reasonable doubt the ownership allegation."). 50. Harrell v. State, 852 S.W.2d 521, 523 (Tex. Crim. App. 1993). 51. Dingler v. State, 705 S.W.2d 144, 145 (Tex. Crim. App. 1984) ("This Court has long held that when property referred to in a charging instrument belongs to a corporation, it is not only permissible but the better pleading practice to allege ownership in a natural person acting for the corporation, the true owner of the property.") 52. Id., at 147-48 (Clinton, J., concurring). Judge Clinton stated, With definitions now provided by the new penal code for every significant aspect of the element "without the effective consent of the owner," particularly that "owner" includes a corporation, courts are no longer relegated to looking to the common law for "the better rule of pleading." We may justifiably consider a corporation a "person" within the meaning of Article 21.08, supra, owning property by having title, possession or a greater right to possession to it, as contemplated by V.T.C.A. Penal Code, § 1.07(a)(24). Then in that rare case, where another person actually possesses corporate property, in the sense it is not then and there in the actual care, custody, control or management of an agent of the corporation, a pleader may allege it either way. Id. 53. Id. at 148. 54. And the defendant could hardly claim that there was a material variance that deprived him of fair notice since Olen M. Fuller was his father. 73 S.W.3d at 251. A rose by any other name is still a rose, and a father by any other name is still a father. 55. See Bennett v. United States, 227 U.S. 333, 338 (1913), supra note 23. 56. See Ward v. State, 829 S.W.2d 787, 795 (Tex. Crim. App. 1992) (State alleged that "Seth Haller" was the owner of the burglarized building, but evidence showed that the building was owned by an entirely different person, "Steve Scott"; conviction reversed as evidence was insufficient to prove the person alleged as the owner), overruled on other grounds by Riney v. State, 28 S.W.3d 561 (Tex. Crim. App. 2000); Smotherman v. State, 415 S.W.2d 430, 430-31 (Tex. Crim. App. 1967) (first indictment alleged that defendant damaged automobile owned by "Charles Kenneth Quinn"; trial court granted motion for acquittal because car was actually owned by "Clinton Fontenot"; State could reindict and prosecute defendant for damage to the car owned by "Clinton Fontenot" because those were separate offenses); see also Fuller, 73 S.W.3d at 256-57 (Keller, P.J., concurring) (discussing non-statutory facts-such as the identity of the victim or the identity of the property-that define the allowable unit of prosecution). 57. People v. Santiago, 665 N.E.2d 380, 380 (Ill. App. Ct. 1996). 58. State's Brief at 14. 59. Id. 60. Shakespeare, Romeo and Juliet, Act II, scene ii, ll. 1-2. 61. 891 S.W.2d 649 (Tex. Crim. App. 1995). Article 57.02(b) of the Texas Code of Criminal Procedure permits the victim of a crime to choose a pseudonym to identify himself in all public records. Id. at 651. 62. Id. at 650. 63. Id. at 651 & n.2 (holding that the fatal-variance doctrine is not applicable to obvious pseudonym cases so long as the defendant's due-process right to notice is satisfied, and that it was in this case because State had listed victim's legal name in compliance with defense motion for disclosure). 64. Id. 65. State's Brief at 17. 66. Id. (quoting Stevens, 891 S.W.2d at 651). 67. Informally, we do know, from the unadmitted and inadmissible offense report, that Mike Morales was listed as the manager of the local Wal-Mart, but that is not in the record for the jury's consideration. Furthermore, there was nothing in the record that would support a finding that Mike Morales did or did not give effective consent to appellant to take Wal-Mart's property. The testimony from Mr. Salinas, the loss prevention officer, established that "Wal-Mart hadn't given [appellant] consent to take that property," but we know nothing about Mike Morales's possible consent or lack thereof. 68. See Gollihar, 46 S.W.3d at 257 ("When reviewing such a variance, we must determine whether the indictment, as written, informed the defendant of the charge against him sufficiently to allow him to prepare an adequate defense at trial, and whether prosecution under the deficiently drafted indictment would subject the defendant to the risk of being prosecuted later for the same crime."). 69. Id. 70. 665 N.E.2d 380 (Ill. App. Ct. 1996). 71. Id. at 381. 72. Id. 73. The original complaint (apparently the trial judge read the original complaint at trial, not the information) had accurately listed Mr. Rodriquez as the robbery victim; it was only in the final, formal information that the error occurred. Id. at 382. This was a trial to the court, so there was no jury charge, much less a hypothetically correct jury charge, by which to measure the sufficiency of the evidence. 74. Id. 75. Id. (quoting People v. Gilmore, 344 N.E.2d 456 (Ill. 1976)). 76. 87 S.W.3d 122 (Tex. Crim. App. 2002). 77. Id. at 123. 78. Id. at 124. 79. Id. at 125. 80. Id. 81. Id. at 125-26. 82. Judges Womack and Cochran did not participate. Judge Keasler wrote a dissent, joined by Judge Johnson. As explained infra, although we reaffirm the result in Bailey, we adopt much of the reasoning in Judge Keasler's dissent. 83. The majority cited, inter alia, Swindel v. State, 32 Tex. 102, 103-04 (1869) (denying habeas relief when defendant, who had been reindicted for theft of a "gelding" after he had been discharged for theft of a horse, when the evidence showed that he had stolen a "gelding"); Nance v. State, 17 Tex. App. 385, 389 (1885) (defendant could not be reprosecuted for incest with "Pauline Seitz" after his acquittal for incest with "Pauline Leitz" unless proof of the former would have supported conviction of the latter); Reynolds v. State, 124 S.W. 931, 931 (Tex. Crim. App. 1910) (when the defendant is acquitted for assaulting a person whose name was erroneously set out in indictment, he may be reprosecuted for assault upon that same person if charged with correct name); Fulmer v. State, 731 S.W.2d 943, 948 (Tex. Crim. App. 1987) (defendant could be reprosecuted for indecency with a child when first indictment alleged victim was "Kim Nguet" but was acquitted on appeal because evidence showed victim's name was "Kim Ngo"); Smotherman v. State, 415 S.W.2d 430, 431 (Tex. Crim. App. 1967) (State could reprosecute defendant for damaging property of "Clinton Fontenot" after he was acquitted of damaging that same property of "Charles Kenneth Quinn" when evidence at trial showed that Mr. Fontenot owned the damaged automobile). 84. Bailey, 87 S.W.3d at 127. The State and the majority in the court of appeals attempted to distinguish Bailey by arguing that theft of money is different from theft of other property because cash is fungible-except for the serial number, one dollar bill looks like every other dollar bill. But Bailey did not involve theft of cash; it involved signed paychecks which are not fungible. And regardless of the form of the money-cash or checks-there was only one discrete theft scheme. All of the money belonged either to the City of Houston or to Rick Collins; there was no evidence that some of the money belonged to the city and some belonged to Rick Collins. 85. Id. (citing Fulmer v. State, 731 S.W.2d 943, 948 (Tex. Crim. App.1987) (Clinton, J., concurring) (opinion adopted by majority) (analyzing double-jeopardy issue by examining the proof needed to support each element of crime). 86. Id. at 130-31 (Keasler, J., dissenting). 87. 284 U.S. 299 (1932). 88. Id. ("Generally, courts analyze whether two offenses are the 'same offense' under the Blockburger test by determining whether each offense requires proof of an element which the other does not. But that test is applicable only when the defendant is prosecuted under two different statutes for the same conduct. It does not apply when, as here, the defendant is prosecuted twice under the same statute."); see, e.g., Jones v. State, 323 S.W.3d 885, 889-91 (Tex. Crim. App. 2010) (discussing double jeopardy in the context of allowable units of prosecution; concluding that the allowable unit of prosecution was the materially false or misleading statement, not the loan application, in a prosecution for making false statement to obtain property or credit involving two loan applications, each of which contained three false statements; holding that defendant could be prosecuted for six offenses without violating double jeopardy). 89. There may be some special exceptions to the general rule. See note 43, supra. 90. Tex. Code Crim. Proc. arts. 21.08 & 21.09. 91. Malik, Gollihar, and Fuller, supra. 92. See Dunn, 442 U.S. at 113 n. 14. 93. Bailey, 87 S.W.3d at 131 (Keasler, J., dissenting). 94. Id.	{ "pile_set_name": "FreeLaw" }
In The Court of Appeals Ninth District of Texas at Beaumont ____________________ NO. 09-03-051 CV ____________________ MAGNOLIA BEND VOLUNTEER FIRE DEPARTMENT, INC., Appellant V. JOHN J. MCDONNELL and MONTGOMERY COUNTY EMERGENCY SERVICES DISTRICT NO. 5, Appellees On Appeal from the 359th District Court Montgomery County, Texas Trial Cause No. 02-07-04300-CV MEMORANDUM OPINION The Magnolia Bend Volunteer Fire Department, Inc. (Fire Department) sued Montgomery County Emergency Services District No. 5 (the District) seeking the cancellation of a warranty deed transferring certain real property from the Fire Department to the District. The Fire Department further sought the cancellation of an assignment of lease transferring a leasehold interest in certain other real property from it to the District. The Fire Department also sued John McDonnell, President of the Magnolia Bend Volunteer Fire Department, alleging breach of fiduciary duty and Homer Wilson for conspiracy with McDonnell. The District counterclaimed against the Fire Department on the basis the original deed placing title to the real property in the Fire Department's name was constitutionally void and seeking the imposition of a resulting trust quieting title to the property in the District. The District further sought an order declaring it was entitled to ownership and possession of various items of all personal property and fire equipment purchased with tax funds, and seeking an order enjoining the Fire Department from damaging or removing equipment. Following a trial to the bench, the court found the placing of title to the real property in the Fire Department's name was void under the Texas Constitution and that a resulting trust existed in favor of the District. The trial court awarded title and possession of the real property and the personal property and fire equipment to the District. The trial court rendered a take-nothing judgment against the Fire Department on its claims against McDonnell and Wilson. The Fire Department brings this appeal raising three issues. The District has filed a brief as appellee. (1) The Fire Department claims in its first issue the evidence does not support the trial court's finding that McDonnell did not breach his fiduciary duty. The District counters that any error with respect to the finding was harmless because the Fire Department fails to challenge the trial court's finding that it sustained no damages from McDonnell's conduct. Generally, in the absence of a challenge on the finding of no damages, any error in the findings on issues of liability are immaterial and harmless. See Tate v. Sharp, 831 S.W.2d 899, 900 (Tex. App.--Beaumont 1992, no writ)(quoting Canales v. National Union Fire Ins. Co., 763 S.W.2d 20, 23 (Tex. App.--Corpus Christi 1988, writ denied). See also Easley v. Castle Manor Nursing Home, 731 S.W.2d 743, 744 (Tex. App.--Dallas 1987, no writ). Further, the Fire Department does not argue or demonstrate that the error complained of probably caused the rendition of an improper judgment. See Tex. R. App. P. 44.1(a)(1). Issue one is overruled. In issue two, the Fire Department contends the evidence does not support the trial court's finding that the original deed placing title to the property in its name was void as prohibited by Article 3, section 52 of the Texas Constitution, because the funds to pay for the property and building were tax funds provided by the Montgomery County Rural Fire Prevention District No. 5. (2) See Tex. Const. art. III, § 52. The Fire Department does not challenge the trial court's finding that "[f]unds for the payment of the Property . . . were provided to the Magnolia Bend VFD by the Montgomery County Rural Fire Prevention District No. 5." Rather, the Fire Department argues the money which purchased the property was not "given" to it, because there was a contract that in exchange for funding, the Fire Department would provide fire suppression services for the District. Therefore, the Fire Department contends, the payments did not violate the Texas Constitution and the placing of title in its name was not void. We first note that the Fire Department cites no authority for its position. See Tex. R. App. P. 38.1 (h). Furthermore, the Fire Department fails to discuss all of the evidence in asserting it is factually insufficient. When reviewing such a challenge, we must consider all of the evidence. See Plas-Tex, Inc. v. U.S. Steel Corp., 772 S.W.2d 442, 445 (Tex. 1989). The Fire Department refers only to portions of the testimony provided by Bennie M. McKenzie, Homer Wilson, and Charlie Roe, as summarized here. McKenzie testified the tax money was in exchange for fire suppression services and "they hired us to do that." Wilson's testimony indicated there was a verbal contract for services in exchange for funds and "there was no formal written contract until 2000." Wilson further testified the money was never given to the Fire Department to "spend it any way you want to." Roe testified the District did not "just give" the Fire Department money, it was for their budget to provide fire-fighting services. The evidence set forth by the Fire Department does not show the funds were in exchange for return consideration. The Fire Department does not demonstrate the District's act--placing title to the property in its name--was in exchange for sufficient consideration so that it was not "gratuitous." See Texas Mun. League Intergovernmental Risk Pool v. Tex. Workers' Comp. Com'n, 74 S.W.3d 377, 383 (Tex. 2002). Issue two is overruled. In its third issue, the Fire Department claims the evidence does not support the imposition of a resulting trust on the property in favor of the District. Specifically, the Fire Department contends first that the District did not establish it paid the purchase price for the property; and second, that the District did not show it paid such price at the time of the inception of the title. In support, the Fire Department refers to the fact that title to the property passed to it on June 28, 1985, when the deed was executed; the down payment was paid with a cashier's check purchased by the Fire Department; and that the money received from the District was co-mingled in one account with the Fire Department's own money. The deed is void; therefore, title did not pass to the Fire Department when it was executed. Consequently, the payments were not made "subsequent to the inception of legal title" as the Fire Department argues. The trial court found that any "commingled" funds were presumed to be public funds and the Fire Department does not challenge that finding. Regarding payment, the trial court found the District provided the funds to the Fire Department to pay for the property. The record establishes that in 1985 the District approved the purchase of the property for a new fire station. At that meeting, the District authorized down payment on the land. On June 28, 1985, the District wrote a check to the Fire Department for $10,000. The District's financial report for 1986 noted as an expense for land purchase the amount of $4,666, and as a liability a note payable for land purchase in the amount of $27,965. The minutes of the District board in July 1986 show a motion carried to pay the land off at approximately $25,000. On January 13, 1987, the District wrote a check to the Fire Department in the amount of $10,000. On January 22, the District gave Check No. 469 in the amount of $20,000 to the Fire Department to pay off the land. The record contains copies of a cashier's check from the Fire Department to the title company in June of 1985 for the amount of $4,685.82, and two checks from the Fire Department to the trustee for the land in the amounts of $5,462.38 and $26,704.35, dated July 1, 1986 and January 23, 1987, respectively. Robert Burch, a member of the board of commissioners for the District from 1985 through 1987, and a member of the Fire Department from approximately 1983 to 1985, testified taxpayer funds provided by the District paid for the down payment on the land, the annual payment made in 1986, and the balance paid off in 1987. We conclude there is factually sufficient evidence to support the trial court's finding the District supplied the funds to the Fire Department to pay for the property. The Fire Department does not refer this court to any evidence contrary to the trial court's findings. "A resulting trust arises by operation of law when title is conveyed to one party, but the purchase price is paid by another. Crume v. Smith, 620 S.W.2d 212, 215 (Tex.Civ.App.--Tyler 1981, no writ)." Masterson v. Hogue, 842 S.W.2d 696, 697 (Tex. App.--Tyler 1992, no pet.). "When title to property is taken in the name of someone other than the person who advances the purchase price, a resulting trust is created in favor of the payor. Nolana Dev. Ass'n v. Corsi, 682 S.W.2d 246, 250 (Tex.1984); Cohrs v. Scott, 338 S.W.2d 127, 130 (Tex.1960)." Tricentrol Oil Trading, Inc. v. Annesley, 809 S.W.2d 218, 220 (Tex. 1991). The Fire Department refers to no evidence the District paid the purchase price in the character of anything other than a purchaser or by way of loan. See Lifemark Corp. v. Merritt, 655 S.W.2d 310, 317 (Tex. App.--Houston [14th Dist.] 1983, writ ref'd n.r.e.). See also Sahagun v. Ibarra, 90 S.W.3d 860, 863-64 (Tex. App.--San Antonio 2002, no pet.). The evidence is factually sufficient to support the imposition of a resulting trust. Issue three is overruled. The judgment of the trial court is AFFIRMED. PER CURIAM Submitted on October 28, 2003 Opinion Delivered December 11, 2003 Before Burgess, Gaultney, and Hill (3), JJ. 1. John McDonnell is listed as a pro se appellee in the District's brief but did not file a separate brief. 2. The District is the successor in interest to all of the Fire District's assets and obligations. 3. The Honorable John Hill, sitting by assignment pursuant to Tex. Gov't Code Ann. § 74.003(b) (Vernon 1998).	{ "pile_set_name": "FreeLaw" }
(2008) UNITED STATES of America v. Kevin QUATTLEBAUM and Giovanni Enrico Williams, Defendants. Criminal Action No. 07-235 (JDB). United States District Court, District of Columbia. January 30, 2008. MEMORANDUM AND ORDER JOHN D. BATES, District Judge. Following a jury trial that concluded on November 29, 2007, defendant Kevin Quattlebaum was convicted of possession with intent to distribute 188 grams of cocaine base in violation of 21 U.S.C. § 841(a)(1) on December 4, 2007.[1] Following the close of the government's evidence at trial, defendant made a motion for a judgment of acquittal pursuant to Fed. R.Crim.P. 29(b). The Court reserved judgment on that question at the time. Defendant now renews his motion for acquittal pursuant to Fed.R.Crim.P. 29(b) and, alternatively, moves for a new trial on the basis of insufficient evidence to support the jury's verdict pursuant to Fed. R.Crim.P. 33. The government opposes both grounds to disturb the jury's verdict. Upon careful consideration, and for the reasons set forth below, the Court will deny defendant's motion. BACKGROUND The evidence at trial established the following. On August 17, 2007, undercover Metropolitan Police Department ("MPD") officers observed defendants Quattlebaum and Williams walking towards a 2005 Ford F-150 pick-up truck (owned and registered to Quattlebaum) in northeast Washington, D.C. Williams entered the truck on the driver's side and Quattlebaum entered on the passenger's side. After they entered the F-150, Officer Hampton Durham viewed through the rear windshield of the truck Quattlebaum making a "counting gesture" towards Williams while seated on the passenger side of the vehicle. Defendants soon departed and began to drive north on 19th Street, NE. At the intersection of 19th and Lyman Place, Officer Durham observed the F-150 make a left turn allegedly without employing its traffic signal. That transgression was also observed by other members of the undercover team, and at that point the decision to stop the vehicle was broadcast over a non-recorded radio channel. Sergeant Neill performed the stop and he was promptly joined by Officer Foultz and Lt. Wilkins. Upon approaching the vehicle, Lt. Wilkins noted the distinct odor of burnt marijuana emanating from the truck, which he believed gave him probable cause to perform a search of the vehicle's interior. Although Lt. Wilkins's search did not ultimately reveal any traces of marijuana in the truck, he did find large chunks of crack cocaine located in a grey bag stuffed inside of a Nike shoe found on the rear floorboard of the F-150. Defendants were then placed under arrest. In addition to the cocaine base, the officers found a digital scale and a collection of multiple cellular telephones. At the time they were arrested; Quattlebaum and Williams had $300 and $1700 on their persons, respectively. The government commissioned a forensic investigation of the Nike shoes that housed the cocaine. Amy Jeanguenat, a DNA analyst, concluded that defendant Quattlebaum was the primary contributor of the majority of the DNA found in the shoe. Defendants were charged with unlawful possession with intent to distribute more than 50 grams of cocaine base. At trial, the government presented a variety of evidence. To begin with, the government called several of the undercover officers to testify to the circumstances of the traffic stop and subsequent search of defendant's vehicle described above. The government also called Ms. Jeanguenat to testify to the results of the DNA analysis. Expert testimony by Anthony Washington established that the wholesale value of the crack at issue was $4,500-$5,000, the ultimate "street" value of which was $25,000. Detective Washington further testified that drug dealers often stash contraband in their shoes due to their belief that some individuals regard shoes as unhygienic, thus making them unlikely items to be disturbed or searched by others. Significantly, Detective Washington also testified that digital scales of the type recovered from defendant's vehicle are frequently used in narcotics transactions. He stated, moreover, that drug deals routinely occur within automobiles and typically proceed on a strictly cash basis. Finally, Detective Washington testified that nonsubscriber cellular telephones, a characteristic attributed to some of the phones discovered in defendant's truck, are often employed by drug distributors in an effort to conceal their communications from law enforcement officials. The parties stipulated that no usable fingerprint evidence was recovered from the drugs and accompanying paraphernalia. Defendants then offered their own evidence. Quattlebaum produced testimony that established that he often permitted other individuals to drive the truck in connection with his cleaning service, including an individual known as "David." Defense evidence also demonstrated that Quattlebaum and his son, Kevin Jackson, had recently returned from Miami. Quattlebaum drove a U-haul truck back with his wife's belongings, while Jackson and other friends of his drove the F-150 truck. Upon their return to the District on the eve of defendants' arrest, Kevin Jackson went out for the evening in his father's F-150. The next morning, Kevin Jackson testified that he returned the truck and the keys to David. That account was corroborated by Ernest Wilson-Brown, a friend of Kevin Jackson. Next, Kimberly Juggins testified that she saw David give the keys to the truck to Quattlebaum on the afternoon in question. Moreover, Benita Williams testified that she gave several asthma inhalers to Quattlebaum on the day of his arrest at some time between 1 and 4 p.m. in the afternoon. Finally, Quattlebaum took the stand and testified that he returned to Washington, D.C. on August 16, 2007. He explained that he had an altercation with David on that evening regarding money concerning a job that David had done in connection with Quattlebaum's cleaning business. Quattlebaum also explained that he gave the F-150 to Kevin Jackson to use on that evening. The next day, Quattlebaum testified that he directed Kevin Jackson to give the keys of the vehicle to David. Later on in the afternoon, Quattlebaum testified that he returned to L Street, NE with Williams to retrieve the truck. He indicated that when he entered the vehicle on the passenger side, he shook his asthma inhaler several times before departing northbound with Williams. STANDARD OF REVIEW Fed.R.Crim.P. 29(b) provides that, following the close of the government's evidence (or, alternatively, all of the evidence in the case), a court must "enter a judgment of acquittal of any offense for which the evidence is insufficient to sustain a conviction." Fed.R.Crim.P. 29(b). The test is whether the evidence presented at trial, viewed in the light most favorable to the government, "is sufficient to sustain a conviction as a matter of law; in other words, the Court must decide whether a reasonable jury could conclude that the government met its burden of proving each element of the offense beyond a reasonable doubt." United States v. Quinn, 403 F.Supp.2d 57, 60 (D.D.C.2005) (quoting United States v. Treadwell, 760 F.2d 327, 333 (D.C.Cir.1985)); see also Jackson v. Virginia, 443 U.S. 307, 319, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979); United States v. Gomez, 431 F.3d 818, 819 (D.C.Cir.2005) ("As always with a defendant's claims of insufficient evidence, we review de novo, viewing the evidence in the light most favorable to the government. We affirm if a rational fact-finder could have found guilt beyond a reasonable doubt."). In relevant part, Fed.R.Crim.P. 33(a) provides that "the [C]ourt may vacate any judgment and grant a new trial if the interest of justice so requires." Fed. R.Crim.P. 33(a). "Unlike a motion for judgment of acquittal, when ruling on a motion for a new trial the Court need not accept the evidence in the light most favorable to the government, and [it] may weigh the testimony and may consider the credibility of the witnesses.'" United States v. Howard, 245 F.Supp.2d 24, 30 (D.D.C. 2003) (quoting United States v. Edmonds, 765 F.Supp. 1112, 1118 (D.D.C.1991)). "A motion for a new trial is committed to the sound discretion of the trial judge, and should be reversed only for abuse or misapplication of the law." United States v. Mangieri, 694 F.2d 1270, 1285 (D.C.Cir. 1982) (quoting United States v. Reese, 561 F.2d 894, 902 (D.C.Cir.1977)). DISCUSSION I. Motion for Acquittal The crux of defendant's argument in favor of acquittal is that the evidence presented at trial by the government was insufficient to prove that defendant had constructive possession of the cocaine base. It is well-established in this circuit that "[c]onviction on the basis of constructive possession requires evidence of the defendant's `ability to exercise knowing dominion and control over the items in question.'" Gomez, 431 F.3d at 820 (quoting United States v. Wahl, 290 F.3d 370, 376 (D.C.Cir. 2002)). In the context of drug possession, "[w]here drugs are found in a place occupied by more than one person, the evidence must support a belief that `the accused had a substantial voice vis-a-vis' the drugs ... or, equivalently, `some appreciable ability to guide [the drugs'] destiny." Id. (quoting United States v. Staten, 581 F.2d 878, 884 (D.C.Cir.1978)). Put another way, "[a]lthough mere proximity to [contraband] is insufficient to establish constructive possession, evidence of some other factor including connection with the [contraband], proof of motive, a gesture implying control, evasive conduct, or a statement indicating involvement in an enterprise coupled with proximity may suffice." United States v. Booker, 436 F.3d 238, 242 (D.C.Cir.2006) (quoting United States v. Alexander, 331 F.3d 116, 127 (D.C.Cir.2003)). In this case, defendant effectively argues that all the government's evidence proves only "proximity," which in and of itself is insufficient to establish constructive possession. The government responds that it has demonstrated several "plus" factors that demonstrate more than mere proximity as the basis for defendant's conviction. As explained below, the government has the better of this argument. Defendant's argument relies heavily upon Rivas v. United States, 783 A.2d 125 (D.C.2001). He cites that case for the proposition that "`mere presence of the accused on the premises, or simply his proximity to the drug, does not itself enable... a deduction' beyond a reasonable doubt that [the accused] had the requisite intent." Id. at 130 (quoting Staten, 581 F.2d at 884). Instead, defendant maintains, Rivas requires: [A] furtive gesture indicating an attempt to access, hide or dispose of the object, flight or other evidence of consciousness of guilt, evidence of participation in an ongoing criminal venture involving the contraband, an inculpatory statement, evidence of prior possession of the item, actual possession of paraphernalia relating to the use or sale of the contraband, control of the area or container in which the contraband is found, or the like. Id. at 137. Seizing on that passage, defendant ardently insists that "none of the factors that the Rivas court outlined as sufficient to prove intent along with mere proximity to the drugs" are present in this case. Def.'s Mot. at 10-11. Thus, according to defendant, the government's evidence was not adequate to prove constructive possession beyond a reasonable doubt. As demonstrated below, however, not only does defendant over-read Rivas, at least one of the Rivas factors is in fact present here. At the outset, it is worth noting that Rivas is not federal authority and it has no binding effect on this Court. To be sure, the case may be instructive on this issue, but the government is by no means required to satisfy any Rivas criteria. Instead, the government's burden is outlined by federal cases from this circuit (and from the Supreme Court, naturally). Be that as it may, defendant attributes far too much weight to Rivas on its own terms. In that case, the D.C. Court of Appeals disavowed any "special exception for automobiles" in the constructive possession context. Rivas, 783 A.2d at 131. The court merely held that "proximity to exposed drugs in a car, without more" is not "sufficient to prove (beyond a reasonable doubt) the requisite intention to exercise dominion or control." Id. Thus, the court's explanation of other "plus" factors was simply an elaboration on that holding and should by no means be taken to constitute an exhaustive list. Indeed, the court took pains to make clear that proximity "plainly" has "bearing on the issue of control," id. at 131 it simply may not be the only basis for a conviction. Even accepting defendant's reading of Rivas, however, the Court concludes that constructive possession is satisfied. The government evinced evidence that defendant owned both the vehicle (generally) and the shoes (specifically) where the cocaine base was located. Thus, unlike Rivas, defendant here is the owner (rather than a mere passenger, as in Rivas) of the "area or container in which the contraband [was] found," in Rivas terms. Id. at 137. Defendant had the ability to control that area by virtue of his ownership of it and the ability to exclude (or permit) others from making use of that space. As the government aptly puts it, "the truck was a place of safekeeping for the defendant's personal items, including his Nike tennis shoes." Gov't Opp'n at 5. To be sure, defendant's evidence attempted to cast some doubt on that conclusion by establishing that defendant often let other individuals make use of the car, specifically "David" in this case. But that evidence alone does not create a reasonable doubt by operation of law.[2] Viewing the evidence in the light most favorable to the government, as the Court must, a reasonable jury could have found that defendant's proximity to the narcotics, coupled with his ownership of both the vehicle and the shoes that contained the cocaine base, established constructive possession beyond a reasonable doubt. For similar reasons, those same facts also indicate that defendant had an "appreciable ability to guide [the drugs'] destiny." Gomez, 431 F.3d at 820 (internal citations omitted). But that is not the only evidence upon which the government relies. In addition to ownership and the ability to control both the vehicle and the shoes, the government produced additional circumstantial evidence of constructive possession. Aside from merely establishing ownership of the Nike shoes, the government demonstrated that "defendant was the major contributor of the genetic material recovered" from the shoes. Gov't Opp'n at 5. That is circumstantial evidence of actual use, which goes beyond mere ability to control. Moreover, the digital scale recovered from the vehicle presents further circumstantial evidence in favor of finding constructive possession of the narcotics. The government's expert testimony posited that such digital scales are routinely employed "for efficiently weighing narcotics" and that it was therefore likely that the truck "was being used for drug distribution, rather than for a one time dump of a large amount of valuable contraband by a mysterious individual." Id. at 6. The government also produced two additional pieces of evidence in this case. First, defendants were found with nearly $2,000 in cash on their persons. As the government's expert witness established, drug deals proceed almost exclusively on a cash-only basis, and the presence of such large quantities of currency lends support to the conclusion that defendant was engaged in drug distribution. Similarly, the presence of non-subscriber cellular telephones also supports that conclusion. As the government's expert explained, such phones are often used to obscure communications by narcotics dealers. In sum, the government produced evidence that defendant was within close proximity to the narcotics at the time he was arrested and that he owned the vehicle and Nike shoes where the drugs were found. In addition, defendants were found with a large quantity of cash, a digital scale, and several cellular telephones, all of which are indicia of drug distribution according to the government's expert witness. On this record, the Court concludes that a reasonable jury could easily have found that defendant constructively possessed the narcotics found in the vehicle. The evidence permits the conclusion that he was more than a mere bystander to these events. Accordingly, the Court will deny defendant's motion for acquittal. II. Motion for New Trial Pursuant to Fed.R.Crim.P. 33, the Court may set aside the jury's verdict and grant a new trial "if the interest of justice so requires." Fed.R.Crim.P. 33(a). As explained above, unlike in the motion for acquittal posture, the Court may review the totality of the evidence including the credibility of the witnesses who testified at trial to determine if a new trial is warranted. Moreover, the Court need not view the evidence in the light most favorable to the government in this context. Nevertheless, as explained below, the Court will deny defendant's motion for a new trial. Defendant has a heavy burden under Fed.R.Crim.P. 33(a). As another judge in this District put it, "the evidence must preponderate heavily against the verdict, such that it would be a miscarriage of justice to let the verdict stand.... This power should be exercised with caution, and is invoked only in those exceptional cases in which the evidence weighs heavily against the verdict." Howard, 245 F.Supp.2d at 30. (quoting Edmonds, 765 F.Supp. at 1118). In this case, defendant offers two reasons to set aside the jury's verdict and grant a new trial: (1) a conclusory allegation that "the verdict is contrary to the law and the weight of the evidence ... [because defendant was found guilty] without evidence that he knew the drugs were in the vehicle nor that he intended to possess the drugs," Def.'s Mot. at 12; and (2) that this Court erred by giving the jury an instruction that the stop and search of the vehicle was lawful. Neither reason is persuasive. The first justification put forward by defendant is little more than a rehash of his arguments for acquittal. Although the Court need not consider the evidence in the light most favorable to the government for Rule 33 purposes, defendant has nevertheless failed to demonstrate the evidence weighs against the verdict. Defendant's evidentiary showing is apparently designed to demonstrate that David, or some other unidentified individual, placed the cocaine base in defendant's truck without defendant's knowledge. To establish that, defendant introduced evidence that David had access to the truck on the morning of August 17, 2007 and that he returned the keys to defendant at some point in the afternoon.[3] Presumably, defendant's theory is that David placed the cocaine base in defendant's shoe while he had access to the truck on the morning of August 17th. Unfortunately, defendant's evidence does not come close to proving that theory. There is no evidence linking the narcotics to David, and defendant's asserted motive for David's actions is specious at best. On this record, a jury would be forced to speculate to reach defendant's account of these events. In short, the evidence falls far short of preponderating against the verdict (or even negating the government's case in chief). Defendant's second argument fares no better. He insists that the Court erred by instructing the jury that the stop and search of defendant's vehicle was lawful.[4] That is so, the argument goes, because the instruction improperly "place[d] the Court's imprimatur on an essential aspect of the jury's consideration of the charge against [defendant] by suggesting that the traffic violation did in fact occur, and that the officers did in fact smell marijuana, and that the officers did in fact find drugs in the truck." Def.'s Mot. at 12. In turn, the instruction also supposedly stripped the jury of its ability to be "completely free to consider the testimony and credibility of Officer Durham and Officer Foultz against the testimony [of] Mr. Williams, who testified that he initiated his left turn signal." Id. Moreover, according to defendant, the instruction improperly suggested that the "officers did in fact find the drugs in the car," thus depriving the jury of the possible conclusion "that the officers planted the drugs in the truck." Id. at 13. Defendant's contentions are without merit. To begin with, it is the Court's role to decide legal questions, such as the lawfulness of a traffic stop. Contrary to defendant's assertions, it would have been improper to permit the jury to consider whether the stop and search in question were lawful during their deliberations. In any event, to avoid any undue prejudice to defendant, the Court instructed the jury that it was permitted to make an independent determination of the facts surrounding the stop and search, provided that those facts were relevant to the jury's role as fact-finders. Finally, the Court also instructed the jury that it was up to the individual jurors themselves to weigh the credibility of any witness in the case, including the various officers. The suggestion that the Court somehow forced the jury to regard the officers as credible is baseless. Simply put; defendant's asserted trial error cannot support granting his motion for a new trial. Accordingly, the Court will deny defendant's Rule 33 motion. CONCLUSION Upon consideration of [54] defendant's motion for acquittal, or in the alternative, for a new trial, the opposition thereto, the entire record herein, and for the foregoing reasons, it is hereby ORDERED that the motion is DENIED. SO ORDERED. NOTES [1] On December 3, 2007, the jury found defendant Giovanni Williams not guilty of the same offense. [2] In fact, it is "the rule in this circuit that only the evidence presented as part of the Government's case in chief may be considered" on a motion for acquittal. United States v. Pardo, 636 F.2d 535, 547 (D.C.Cir. 1980). The Court mentions defendant's evidence here only to point out that it would be insufficient to create a reasonable doubt as a matter of law in any event. [3] Indeed, it is unclear what time this supposed transaction occurred. Defendant was forced to impeach his own witness, Kimberly Juggins, when she indicated that the key hand-off occurred prior to 1:00 p.m. For her part, Benita Williams' testimony does not establish a definitive timeline either because she merely indicated that she gave inhalers to defendant at some point between 1:00 p.m. and 4:00 p.m. Officer Durham saw defendants enter the truck at 4:20 p.m. [4] The Court's instruction was as follows: As I have instructed you, it is my responsibility to rule on legal questions. In that regard, I have already determined as a matter of law that the stop and search of the Ford pick-up truck by the police officers, and the arrests of the defendants, were lawful. To the extent that you consider the facts surrounding the stop, search, and arrests to be relevant in your role as finders of fact, it is your job to determine what those particular facts are.	{ "pile_set_name": "FreeLaw" }
893 N.E.2d 1183 (2008) GATES v. PIERSON. No. 82A01-0806-CV-263. Court of Appeals of Indiana. September 17, 2008. BAKER, C.J. Disposition of case by unpublished memorandum decision. Affirmed. MATHIAS, J. Concurs. BROWN, J. Concurs.	{ "pile_set_name": "FreeLaw" }
NO. 07-02-0206-CV IN THE COURT OF APPEALS FOR THE SEVENTH DISTRICT OF TEXAS AT AMARILLO PANEL E MARCH 28, 2003 ______________________________ DERRAL NOBLE, APPELLANT V. SOUTHWESTERN PUBLIC SERVICE COMPANY, APPELLEE _________________________________ FROM THE 47TH DISTRICT COURT OF POTTER COUNTY; NO. 80,007-A; HONORABLE DAVID L. GLEASON, JUDGE _______________________________ Before QUINN and REAVIS, JJ. and BOYD, S.J. (1) MEMORANDUM OPINION (2) Derral Noble challenges a summary judgment that he take nothing against Southwestern Public Service Company (SPS) on his disability discrimination claim under the Americans With Disabilities Act (ADA). (3) By four issues, Noble contends the trial court (1) abused its discretion in granting SPS's motion for severance of the ADA claim; (2) erred in granting summary judgment on his ADA claim because SPS failed to establish as a matter of law that the ADA claim was barred by any applicable statute of limitations; (3) erred in granting summary judgment that his ADA claim was barred by the doctrines of res judicata, collateral estoppel, issue preclusion, or election; and (4) erred in granting summary judgment on his ADA claim. Based upon the rationale expressed herein, we affirm. Noble does not contend that any facts are disputed; thus, only the facts necessary to disposition of this appeal will be discussed. Noble, an employee of SPS, suffered an on-the-job knee injury in April 1991. Following surgery, he returned to work in September, but because his knee problems persisted he was placed on restricted duty at his full salary. On March 4,1992, Noble filed a notice of injury with the Texas Workforce Commission. When SPS learned that Noble's physician had determined that Noble had reached maximum medical improvement and had an impairment rating of ten percent, SPS sent Noble home to begin a six month waiting period at reduced pay before he could be eligible for SPS's long term disability plan. On April 19, 1993, Noble filed a charge of discrimination with the Equal Employment Opportunity Commission (EEOC), and then on October 21, 1993, filed his original petition in the trial court alleging claims under former article 8307c and the Texas Workers' Compensation Act and also alleging claims of discrimination under former article 5221k of the Texas Commission on Human Rights Act, (4) but did not allege claims under the ADA. Upon jury trial, the trial court granted SPS's motion for instructed verdict on Noble's 8307c claim and the Texas disability discrimination claim. On appeal, we reversed the judgment as to the 8307c claim, but because Noble had not exhausted his administrative remedies applicable to his disability discrimination claim, we affirmed the judgment that he take nothing on the Texas disability discrimination claim. Noble v. Southwestern Public Service Company, No. 07-97-0202-CV (Tex.App.-Amarillo 1998) (not designated for publication) 1998 Tex.App. LEXIS 7997. After our mandate remanding the article 8307c claim to the trial court of August 18, 1999, Noble filed his second amended petition on December 19, 2000, reasserting his section 451.001 claim and, although not raised by Noble's existing pleadings, he asserted a claim for disability discrimination under the ADA. In response to Noble's amended pleading raising a claim under the ADA, SPS filed special exceptions to the joinder of the ADA claim with the section 451.001 claim and requested a severance. Also, in addition to a general denial, SPS raised affirmative defenses of limitations, res judicata, and collateral estoppel. Then, SPS filed its motion for partial summary judgment as to Noble's ADA claim and for severance. Presenting four grounds, SPS contended the ADA claim was barred (1) by limitations under 42 U.S.C. § 12117(a) and (b) and 42 U.S.C. § 2000e-5(f)(1) , or (2) under §16.003 and §16.051 of the Texas Civil Practice and Remedies Code, (3) under the doctrine of election, and (4) by res judicata, collateral estoppel, and issue preclusion. Following a hearing, the trial court granted SPS's motion for summary judgment and signed a judgment dismissing the ADA claim with prejudice and severing it into a separate proceeding. The grounds relied on are not recited in the judgment. Considering Noble's issues in a logical rather than sequential order, we first consider his fourth issue (5) by which he contends the trial court erred in granting summary judgment and his second issue by which he contends that SPS failed to establish that his ADA claim was barred by the statute of limitations as a matter of law. In our analysis, we will utilize the standard of review of a traditional motion for summary judgment as set out in Kimber v. Sideris, 8 S.W.3d 672, 674 (Tex.App.--Amarillo 1999, no pet.). Noble contends his ADA claim filed in his December 20, 2000 pleading was timely under the "relation-back" doctrine. In support of his argument that it was timely filed under 42 U.S.C. § 2000e-5, Noble cites Paskuly v. Marshall Field & Company, 646 F.2d 1210 (7th Cir. 1981), cert. denied, 454 U.S. 863, 102 S.Ct. 321, 70 L.Ed.2d 162 (1982). Paskuly is not controlling here because the decision applying the "relation-back" doctrine was based on Rule 15(c) of the Federal Rules of Civil Procedure, which is not controlling here. Noble also contends that because his disability discrimination action under the Texas Commission on Human Rights Act was timely filed, his ADA claim is not barred, but relates back to the first filing under section 16.068 of the Texas Civil Practice and Remedies Code. We disagree for two reasons. In our prior opinion, we held that the trial court did not have jurisdiction of Noble's discrimination claim because he had not exhausted his administrative remedies and affirmed the denial of any recovery by Noble. A claimant seeking to recover for age discrimination in employment must exhaust administrative remedies as a prerequisite to filing a civil action under a statute. Schroeder v. Texas Iron Works, Inc., 813 S.W.2d 483, 488 (Tex. 1991). Noble's claim is based entirely on a statutory cause of action; therefore, the provisions of the statute are mandatory and exclusive and must be followed or the action is not maintainable due to lack of jurisdiction. Green v. Aluminum Company of America, 760 S.W.2d 378, 380 (Tex.App.--Austin 1988, no writ). In addition, section 16.064 does not operate to "save" the application of the relation back doctrine because it is an exception to the general limitations provision and does not govern proceedings created by statute to enforce statutory rights. Gutierrez v. Lee, 812 S.W.2d 388, 392 (Tex.App.--Austin 1991, writ denied). Moreover, the December 23, 1998 judgment of this Court severed and remanded to the trial court Noble's claim under section 451.001, but affirmed the judgment that Noble take nothing on his disability discrimination action. Tex. R. App. P. 43.2 and 43.6. Therefore, because we severed the discrimination claim from the section 451.001 claim that was remanded, the judgment affirming denial of the disability discrimination claim became final. Accordingly, as of December 23, 1998, Noble did not have any "live pleadings" asserting a disability discrimination claim pending in the trial court in cause number 80,007-A for purposes of application of section 16.068. Issues four and two are overruled. By his first issue, Noble contends the trial court erred in severing the disability discrimination claim from his section 451.001 claim. We disagree. Under Rule 41 of the Texas Rules of Civil Procedure a claim may be properly severed if it is part of a suit which involves more than one cause of action. Here, the trial court having granted SPS's motion for partial summary judgment on the discrimination claim, severance of the claims did not constitute an abuse of the broad discretion vested in the trial court. Cherokee Water Co. v. Forderhause, 641 S.W.2d 522, 525 (Tex. 1982). Issue one is overruled. Because a summary judgment may be affirmed on appeal if any grounds presented are meritorious, and the judgment of the trial court did not specify or state the grounds relied on, our disposition of issues one, two, and four pretermits our consideration of issue three. Accordingly, the judgment of the trial court is affirmed. Don H. Reavis Justice Quinn, J., concurring. NO. 07-02-0206-CV IN THE COURT OF APPEALS FOR THE SEVENTH DISTRICT OF TEXAS AT AMARILLO PANEL E MARCH 28, 2003 ______________________________ DERRAL NOBLE, Appellant v. SOUTHWESTERN PUBLIC SERVICE COMPANY, Appellee _______________________________ FROM THE 47TH DISTRICT COURT OF POTTER COUNTY; NO. 80,007-A; HON. DAVID L. GLEASON, PRESIDING _______________________________ Concurring Opinion _______________________________ Before QUINN and REAVIS, JJ., and BOYD, S.J. (6) I concur in the majority opinion and add the following. First, to the extent Derral Noble asserts on appeal that his American with Disabilities Act (ADA) claim relates back to his retaliation claim arising under §451.001 of the Texas Labor Code (or Noble's "TWCA" claim), the ground was not urged below. Rather, and in response to the motion for summary judgment, he argued that "the ADA and TCHR [Texas Commission on Human Rights] claim both [were] derived from the same set of facts and occurrences." Nothing was said of its relationship to the claim founded on §451.001 of the Labor Code. Consequently, his having failed to assert to the trial court that the ADA claim related back to the TWCA claim now prevents him from urging that contention on appeal. See Tex. R. Civ. P. 166a(c) (stating that issues not presented to the trial court by written motion, answer, or response shall not be considered on appeal as grounds for reversal). Second, a defendant moving for summary judgment on the basis of limitations has the burden to prove the defense as a matter of law. KPMG Peat Marwick v. Harrison County Housing Fin. Corp., 988 S.W.2d 746, 748 (Tex. 1999). Once it does that and to avoid summary judgment, the plaintiff, in turn, must "adduce some . . . proof raising a fact issue in avoidance of the statute of limitations." Id. Here, Noble does not dispute that his ADA claim was filed outside the time periods mandated by applicable statutes of limitation. Instead, he seeks to avoid application of those statutes by invoking §16.068 of the Texas Civil Practice and Remedies Code. GAccording to §16.068, "[i]f a filed pleading relates to a cause of action . . . that is not subject to a plea of limitation when the pleading is filed, a subsequent amendment . . . to the pleading that changes the facts or grounds of liability . . . is not subject to a plea of limitation unless the amendment . . . is wholly based on a new, distinct, or different transaction or occurrence." Tex. Civ. Prac. & Rem. Code Ann. §16.068 (Vernon 1997). In other words, if the Plaintiff alleges a cause of action within the statute of limitations then amends his petition to aver one outside limitations, the new cause will nonetheless be deemed timely unless it is based on a new, distinct, or different transaction or occurrence. Given this, the fact that he invokes §16.068 to avoid the defense of limitations, and the teachings of KPMG Peat Marwick, it was incumbent upon Noble to present some competent evidence sufficient to raise a question of fact on each element of §16.068. This he did not do. For instance, rather than provide evidence illustrating that his ADA claim was not based on a wholly new or distinct transaction, he simply alleged and concluded in his response to summary judgment that it arose from the same facts, transactions, or occurrences which gave rise to his other causes of action. Such unsworn conclusory statements contained in a response to a motion for summary judgment are not competent summary judgment evidence. Texas Division - Tranter, Inc. v. Carrozza, 876 S.W.2d 312, 314 (Tex. 1994) (holding that conclusory statements are not competent summary judgment evidence); Elam v. Yale Clinic, 783 S.W.2d 638, 642 (Tex. App.--Houston [14th Dist.] 1989, no writ) (holding that unsworn statements are not competent summary judgment evidence). Nor do they raise material issues of fact. Dubois v. Harris County, 866 S.W.2d 787, 790 (Tex. App.--Houston [14th Dist.] 1993, no writ) (holding that fact issues must be raised by competent summary judgment evidence). Thus, Noble did not satisfy his burden to present some evidence sufficient to raise a fact issue in avoidance of limitations, as required by KPMG Peat Marwick. Brian Quinn Justice 1. John T. Boyd, Chief Justice (Ret.), Seventh Court of Appeals, sitting by assignment. 2. Tex. R. App. P. 47.4. 3. 42 U.S.C. § 12101-12213. 4. Former articles 8307c and 5221k are now codified at Tex. Lab. Code Ann. §§ 451.001 and 21.051 (Vernon 1996), respectively. 5. See Malooly Brothers, Inc. v. Napier, 461 S.W.2d 119, 121 (Tex. 1970). 6. John T. Boyd, Chief Justice (Ret.), Seventh Court of Appeals, sitting by assignment. Tex. Gov't Code Ann. §75.002(a)(1) (Vernon Supp. 2003).	{ "pile_set_name": "FreeLaw" }
T.C. Summary Opinion 2005-171 UNITED STATES TAX COURT GEORGES Z. ZAKHEM, Petitioner v. COMMISSIONER OF INTERNAL REVENUE, Respondent Docket No. 10753-04S. Filed November 21, 2005. Georges Z. Zakhem, pro se. Frederick J. Lockhart, Jr., for respondent. DEAN, Special Trial Judge: This case was heard pursuant to the provisions of section 7463 of the Internal Revenue Code in effect at the time the petition was filed. Unless otherwise indicated, subsequent section references are to the Internal Revenue Code of 1986, as amended, and all Rule references are to the Tax Court Rules of Practice and Procedure. The decision to be entered is not reviewable by any other court, and this opinion should not be cited as authority. - 2 - Respondent determined the following deficiencies in and additions to petitioner’s Federal income taxes for 1995, 1996, and 1997: Additions to Tax Under Sections Year Deficiency 6651(a)(1) 6651(a)(2) 6654 1995 $4,856 $610 -- $118 1996 6,978 758 $843 158 1997 10,243 1,047 1,163 216 After concessions,1 the issues for decision are: (1) Whether respondent’s period of limitations within which to assess the 1995, 1996, and 1997 Federal income taxes against Georges Z. Zakhem (petitioner) has expired; and (2) if not, whether petitioner is liable for additions to tax under sections 6651(a)(1) and 6654. Background The stipulated facts and exhibits received into evidence are incorporated herein by reference. At the time the petition in this case was filed, petitioner resided in Boulder, Colorado. During the taxable years at issue, petitioner was employed by Exabyte Corporation (Exabyte) in Boulder, Colorado. For the years 1995, 1996, and 1997, Exabyte issued Forms W-2, Wage and Tax Statement, to petitioner which incorrectly reported petitioner’s Social Security number by one digit. By letter 1 Respondent concedes that the addition to tax under sec. 6654 asserted in the notice of deficiency for 1995 and the additions to tax under sec. 6651(a)(2) asserted in the notices of deficiency for 1996 and 1997 do not apply to this case. - 3 - dated October 24, 1998, the Social Security Administration brought the error to Exabyte’s attention and petitioner’s Social Security number was corrected. Respondent determined that petitioner failed to file Form 1040, U.S. Individual Income Tax Return, for the years 1995, 1996, and 1997 and issued a notice of deficiency for each of these years. Petitioner filed a timely petition for redetermination with the Court of the 3 years at issue.2 Petitioner alleges in his petition that it is “unthinkable” for respondent “to ‘wake’ up 8 years later and lay this undue burden of proof on [him]” to show that the taxes, interest, and additions to taxes assessed against him are improper. Petitioner is not contesting the amount of income reported on the Forms W-2. 2 Rule 34(b)(7) requires that a petition must be signed by either petitioner or petitioner’s counsel. In this case, petitioner failed to sign his petition, which may be a ground for dismissal of the case under Rule 34(a)(1). The Court has been liberal in treating as a petition any document filed by a taxpayer within the 90-day period, if it was intended as a petition. O’Neil v. Commissioner, 66 T.C. 105, 107 (1976); Truskowsky v. Commissioner, T.C. Memo. 1988-319. To be deemed a petition, the document must contain some objective indication that the petitioner contests the deficiency determined by the Commissioner against him. O’Neil v. Commissioner, supra; Truskowsky v. Commissioner, supra. If such documents do not comply with the form and content requirements for petitions, the Court is liberal in allowing the taxpayer to file an amended petition to correct the technical defects. O’Neil v. Commissioner, supra; Truskowsky v. Commissioner, supra. Petitioner intended to contest and has actually contested the 1995, 1996, and 1997 deficiencies determined against him. Therefore, the petition conferred jurisdiction upon the Court for those taxable years. - 4 - Instead, petitioner contends that he does not owe any Federal tax liabilities because he timely filed the tax returns at issue. Discussion Section 6501 Section 6501(a) sets forth limitations on assessment and provides as a general rule that Federal income taxes must be assessed within 3 years after the filing of the return. However, if the taxpayer fails to file a return, the statute of limitation is never set in operation, and the IRS may assess the tax at any time. Sec. 6501(c)(3); sec. 301.6501(c)-1(c), Proced. & Admin. Regs. If the Court finds that petitioner timely filed the returns for 1995, 1996, and 1997, respondent’s assessments are time- barred under section 6501(a). If, however, the Court finds that petitioner did not file the returns, the assessments are valid because respondent may assess the tax at any time. In the latter case, the Court will also address whether petitioner is liable for additions to tax under sections 6651(a)(1) and 6654. The Commissioner’s determinations are presumed correct, and generally taxpayers bear the burden of proving otherwise.3 Rule 142(a)(1); Welch v. Helvering, 290 U.S. 111, 115 (1933). 3 Petitioner has not raised the issue of sec. 7491(a) which shifts the burden of proof to the Commissioner in certain situations. This Court concludes that sec. 7491 does not apply because petitioner has not produced any evidence that establishes the preconditions for its application. - 5 - Petitioner argues that it was Exabyte’s failure to correctly report his Social Security number on his Forms W-2, rather than his failure to file the returns, that resulted in respondent’s lack of records of his filing tax returns. According to the record in this case, Exabyte corrected the Social Security number on petitioner’s Forms W-2 at the end of 1998. Petitioner testified that Exabyte alerted him to the error in August 1999 and that he provided the documentation required to correct the error. Respondent’s search included not only petitioner’s correct Social Security number, but also encompassed the “wrong” Social Security number reported by Exabyte4 as well as the Social Security number for petitioner’s wife. Respondent did not find any returns filed under any of the Social Security numbers. In support of its determination that petitioner failed to file returns for the years at issue, respondent presented three Certificates of Lack of Record for Federal income tax, one for each of the Social Security numbers searched, for tax periods December 31, 1995, through December 31, 1997. In light of respondent’s evidence, the Court is not convinced that it was Exabyte’s error, rather than petitioner’s failure to file the returns, that caused the respondent’s searches to indicate that petitioner’s returns were not filed. 4 Respondent represented that the Social Security number belonged to a different taxpayer who also failed to file returns for 1995, 1996, and 1997. - 6 - At trial, petitioner offered photocopies of what he contends are retained copies of his 1995, 1996, and 1997 tax returns as evidence that he timely filed the returns. All of the copies correctly reported petitioner’s Social Security number. The Court, however, has reason to doubt whether the retained copies are, in fact, retained copies of filed 1995, 1996, and 1997 tax returns. When petitioner’s Forms W-2 are compared to the retained copies, several discrepancies stand out. The retained 1995 and 1996 copies show more income than respondent’s records or the Forms W-2. For 1995, petitioner claimed a Federal income tax withholding credit of $7,451 when Form W-2 shows a withholding of only $2,414. For 1996, he claimed a credit of $7,506 when Form W-2 shows $3,605. For 1997, he claimed a credit of $11,063 when Form W-2 shows $5,670. Petitioner has failed to establish a reason for claiming almost double, and in 1995, triple, the amount of Federal income tax withholding credits as shown on the Forms W-2. Assuming that the retained copies were filed, petitioner should have received tax refunds for years 1995, 1996, and 1997 based on the Federal income tax withholding credits claimed. Petitioner testified that he never received any of the refunds. He testified that he thought it was because the Department of Education took the refunds and applied them against the outstanding balance of his student loans. Petitioner failed to - 7 - contact the Department of Education “for a while” with respect to his delinquent student loan payments, and a judgment was entered against him. Petitioner also has failed to present any documentation to show that the Department of Education has either collected the refund or credited the amount of the refund against his outstanding student loan or the judgment. Petitioner failed to file his State income tax returns. Respondent produced a Certificate of Failure to File Individual Income Tax Return(s) from the Colorado Department of Revenue for the years 1995, 1996, and 1997 as evidence in support. As with the Federal income tax returns, petitioner argues that Colorado has no record of his filings because Exabyte incorrectly reported his Social Security number on the Forms W-2 for 1995, 1996, and 1997. Petitioner did not present any other evidence to substantiate that the returns were in fact filed. Petitioner’s testimony that he filed the returns at issue, without more, is insufficient to sustain a ruling in his favor. See Schwechter v. Commissioner, T.C. Memo. 2000-36; see also Rakosi v. Commissioner, T.C. Memo. 1993-68 (taxpayer failed to prove that she filed her return where she did not produce any documentary evidence of timely mailing and relied solely on self-serving testimony of herself and her husband), affd. 46 F.3d 1144 (9th Cir. 1995). - 8 - Accordingly, the Court finds that petitioner has failed to sustain his burden of proof to show that he filed tax returns for 1995, 1996, and 1997. Petitioner’s Tax Liabilities for 1995, 1996, and 1997 For each of the years at issue, petitioner’s income was computed from his Exabyte wages income, allowing him a standard deduction and one exemption. The resulting tax on his taxable income was then credited with the amount of Federal income tax withholding shown on the Form W-2. Petitioner alleges that he has medical expenses that entitle him to a larger itemized deduction, but he has failed to produce any documentation in support of his contention. In the absence of any corroborating evidence from the petitioner, respondent’s determinations are presumed correct. Additions to Tax Under Section 6651(a)(1) Respondent determined an addition to tax under section 6651(a)(1) for 1995, 1996, and 1997 asserting that petitioner failed to file Federal income tax returns for those years. Section 7491(c) imposes the burden of production in any court proceeding on the Commissioner with respect to the liability of any individual for penalties and additions to tax. Higbee v. Commissioner, 116 T.C. 438, 446 (2001); Trowbridge v. Commissioner, T.C. Memo. 2003-164, affd. 378 F.3d 432 (5th Cir. 2004). In order to meet the burden of production under section - 9 - 7941(c), the Commissioner need only make a prima facie case that imposition of the penalty or addition to tax is appropriate. Higbee v. Commissioner, supra. The burden of proof remains on the petitioner, who must prove that his failure to file was: (1) Due to reasonable cause and (2) not due to willful neglect. Sec. 6651(a); United States v. Boyle, 469 U.S. 241, 245 (1985); Higbee v. Commissioner, supra at 446-447. A failure to file a Federal income tax return is due to reasonable cause if the taxpayer exercised ordinary business care and prudence and nevertheless was unable to file the return within the prescribed time. Barkley v. Commissioner, T.C. Memo. 2004-287; sec. 301.6651-1(c)(1), Proced. & Admin. Regs. Willful neglect means a conscious, intentional failure or reckless indifference. United States v. Boyle, supra at 245. Respondent has carried his burden of production by introducing into evidence certified copies of Form 4340, Certificate of Assessments, Payments, and Other Specified Matters, with respect to petitioner’s 1995, 1996, and 1997 taxable years, establishing that petitioner did not file timely Federal income tax returns for those years. See Davis v. Commissioner, 115 T.C. 35, 40-41 (2000); Downey v. Commissioner, T.C. Memo. 2005-215. - 10 - Petitioner introduced no evidence or any legally sufficient reason for his failure to file a timely return. Therefore, the Court finds that petitioner did not have reasonable cause for his failure to file as required by section 6651(a)(1) and he is liable for the additions to tax as respondent determined. Additions to Tax Under Section 6654 Respondent also contends that petitioner is liable for the additions to tax under section 6654 for 1996, and 1997. Section 6654 provides an addition to tax for failure to make timely and sufficient payments for estimated taxes. The section 6654 addition to tax is mandatory unless petitioner can place himself within one of the computational exceptions provided by section 6654. Recklitis v. Commissioner, 91 T.C. 874, 913 (1988); Grosshandler v. Commissioner, 75 T.C. 1, 20-21 (1980). Since petitioner has failed to do so, this Court sustains respondent on this issue. Reviewed and adopted as the report of the Small Tax Case Division. To reflect the foregoing, Decision will be entered for respondent as to the deficiencies and the additions to tax under section 6651(a)(1) for 1995, 1996, and - 11 - 1997, and as to the additions to tax under section 6654 for 1996 and 1997, and decision will be entered for petitioner as to the additions to tax under section 6651(a)(2) for 1996 and 1997 and as to the addition to tax under section 6654 for 1995.	{ "pile_set_name": "FreeLaw" }
134 A.2d 620 (1957) Alexander JACKSON and Julia C. Jackson v. William H. ROGERS and William H. Rogers, Jr., d/b/a William H. Rogers & Son. Nos. 1287, 1288. Supreme Court of Vermont. Windsor. September 3, 1957. 621 R. Lawlor Cooper, Springfield, for plaintiff. Parker & Ainsworth, Springfield, for defendant. Before CLEARY, ADAMS, HULBURD, and HOLDEN, JJ., and SHANGRAW, Superior Judge. CLEARY, Justice. This litigation consists of two contract actions, one brought by the Jacksons against Rogers & Son and the other brought by Rogers & Son against the Jacksons. Both suits are based on a written contract for the construction of a house, Plff's Exhibits 1 and 2. The Jacksons sued for failure of Rogers & Son to build the house according to the specifications and in conformity to usual building standards; Rogers & Son sued for the unpaid balance of $500 on the contract price. The suits were tried together by jury, resulting in a verdict of $950 for the Jacksons in their suit and in a defendant's verdict in the suit brought by Rogers & Son. Judgments were entered for the Jacksons in both suits. The cases are here on Rogers & Son's exceptions. Rogers & Son had built a large number of houses which were financed by the Federal Housing Administration and were familiar with FHA requirements. Though the FHA did not finance the Jacksons' home, Rogers & Son drew the contract and specifications and, in doing so, used the same forms that were used for FHA financed contracts and specifications. The specifications stated that they included "the applicable FHA Minimum Construction Requirements" and also stated "unless otherwise described or shown, required work will be assumed to be the minimum acceptable to FHA." Rogers & Son have briefed exceptions to admitting into evidence two portions of the FHA Minimum Property Requirements identified as 406-D3.b and 406-G2.a. These requirements provide as follows: "406-D3 Footing Drain Tile. b. Protect top of joints with strips of building paper or other material acceptable to the Chief Underwriter and cover with 1 foot of gravel or other material acceptable to the Chief Underwriter." "406G Dampproofing and Waterproofing. 2.a. Masonry unit walls: apply ½-inch thick portland cement plaster coat over which apply at least one heavy coat of undiluted hot tar, hot asphalt or compound acceptable to Chief Underwriter." Rogers & Son take the position that the terms of the contract as entered into by the parties, being specific as to footing drains and waterproofing, prevail over the terms of the FHA Minimum Property Requirements set forth in the admitted evidence. They cite and quote from Allen v. Berkshire Mutual Fire Ins. Co., 105 Vt. 471, 477, 168 A. 698, 700, 89 A.L.R. 460, "It is a rule of construction that when words of a particular description are followed by words of general import, the latter can be held to include only things similar in character to those specially named." But that rule is subject to the qualifications that where both the general and special provisions may be given reasonable effect, both are to be retained. 17 C.J.S. Contracts § 313, p. 732, note 26; Commonwealth ex rel. Raker v. Kline, 294 Pa. 562, 144 A. 750, 622 751; German Fire Ins. Co. v. Roost, 55 Ohio St. 581, 45 N.E. 1097, 36 L.R.A. 236, 60 Am.St.Rep. 711, 714. No provision is to be wholly disregarded because inconsistent with other provisions unless no other reasonable construction is possible; and a special provision will be held to override a general provision only where the two cannot stand together. German Fire Ins. Co. v. Roost, supra. Here, the FHA Minimum Construction Requirements were included in the specifications and were part of the contract. A contract must be construed, if possible, so as to give effect to every part, and from the parts to form a harmonious whole. In re Pirie's Estate, 116 Vt. 159, 164-165, 71 A.2d 245; Freeguard v. Bingham, 108 Vt. 404, 406, 187 A. 801; Vermont Shade Roller Co. v. Burlington Traction Co., 102 Vt. 489, 502, 150 A. 138. The only specific mention of footing drains in the contract is "4" perf. orangeburg." The Jacksons found no fault with the footing drain or with the kind of material covering it; their complaint concerned the way in which the drain was installed and the lack of 1 foot of cover over it. Their evidence tended to support their complaint. There is no mention of dampproofing in the contract. As to waterproofing the contract says "1 coat Han-a-dex; 5 gal/sq". The evidence was undisputed that such a coat was applied but that no coat of ½ inch portland cement plaster coat was applied. The Jacksons made no complaint about the overcoat of Han-a-dex; their complaint was the failure of Rogers to apply the Han-a-dex over a ½ inch thick coat of portland cement. The standard of the material used for the overcoat in the construction of the drain and of the material used for the overcoat in the masonry unit wall were not in issue. The specifications mentioned the material to be used for footing drains and for waterproofing; the FHA Minimum Requirements, to the admission of which exceptions are briefed, provide how the footing drains were to be covered and that Dampproofing and Waterproofing of the foundation walls should be by applying to the walls two coats, one of portland cement plaster and then an overcoat of other material. The provisions in the specifications and in the portions of the FHA requirements that were admitted into evidence were not inconsistent with each other but each supplemented the other. It was possible to give both of them reasonable effect, so the rule that Rogers & Son quote from the Allen-Berkshire case does not apply to the case now before us. Rogers & Son also claim that the admitted evidence interjects another standard, namely "other material acceptable to the Chief Underwriter", and this constituted prejudicial error because there is no Chief Underwriter on this construction job. It appeared in evidence that the term "Chief Underwriter" meant FHA, that FHA had no connection or interest in the contract before us so there was no Chief Underwriter. Rogers & Son first objected to the admission of 406-D3.b and 406-G2.a on the ground that the specifications in Plff's Exhibit 2 were controlling. The court indicated it would admit 406-D3.b and 406-G2.a as evidence in all matters except the phrase "acceptable to the Chief Underwriter". Rogers & Son objected to the exclusion of this phrase and stated: "if there are any minimum requirements in the publication, they must be either received in toto or excluded and, where these particular sections provide, if you will, a sliding standard predicated on the judgment of the Chief Underwriter, the whole purpose and meaning of such minimum requirements have been emasculated, in that there remains only a portion of the requirements, which would set up a standard not provided for by the written document, since the written document leaves a large area in which the Chief Underwriter may approve some particular type of construction." The court then stated: "The court is perfectly willing to leave that provision remain in the admitted exhibits, for whatever benefit the defendants might be entitled to from it. We have no intention of foreclosing from the defendants 623 any right to show acceptable substitutions were contemplated in the contract, so we will modify our ruling to that extent." Rogers' counsel then said: "The defendants except to the most recent ruling of the court; namely, to admit those paragraphs in their printed form, by reason of the fact the paragraphs in the printed document set up a standard to be determined by the Chief Underwriter and there is no way of determining, at the present state of the case, what the Chief Underwriter's standard would be, and to attempt to hold the defendants to an elastic standard dependent on someone's judgment, who is not here in court, we say our rights are greatly prejudiced and we would like exception to the ruling". The court allowed such exception. Rogers & Son cannot complain that the phrase "acceptable to the Chief Underwriter" was admitted into evidence because this was done at the insistence of their own counsel. 406-G2.a of the FHA Minimum Property Requirements were properly admitted in evidence and the exceptions to the admission of this evidence are not sustained. In their declaration the Jacksons alleged: "The said defendants did not construct the said house in a good and workmanlike manner, in conformity with the specifications in said writing, nor in conformity with the usual building standards in this vicinity, in that the defendants, in building such house did not: 1. Provide a solid, continuous cap or plate along the easterly side of said house; 2. Provide a solid, continuous unnotched shoe along the easterly side of said house; 3. Provide proper vertical studding and horizontal nailing members in the building framing between the cap or plate and the gable rafters at the easterly end of said building; 4. Provide a poured concrete footing below the normal frost line for the foundation walls; 5. Provide a solid foundation wall free from transverse cracks; 6. Provide a proper backfill of gravel around the foundation wall; 7. Provide a waterproof basement; 8. Properly mortar the joints between the cement blocks which form the foundation walls; 9. Provide proper drainage fill around the tile drain at the edge of the foundation footings; 10. Provide a proper base for the entrance platform, or step, at the rear door of said building; 11. Install properly the flooring in the rooms of said house." Rogers & Son have briefed their exceptions to submitting to the jury the allegations numbered 1, 2, 3, 4, 6, 7 and 9 in the Jackson's declaration. The court's charge to the jury included the following: "Where no standard is spelled out in a building contract such as this as to the standard of workmanship to be applied to the construction and assembling of the materials by the builder, the Law implies a standard which is set forth as a `good workmanlike manner' or `good workmanlike construction' as that standard is established by the practices in this immediate vicinity. This means that that standard forms a term of this contract, as a matter of Law, and I so instruct you, just as if it were written in the document." "The defendant Rogers cannot be held for anything done wholly by National Homes which you may find to be a violation of the contract. He can only be held for what he or his men did or failed to do that was a breach of the contract, as you find it to be". No exception was taken to the charge to the jury. Therefore, it became the law of the trial. Senna v. Gero, 118 Vt. 331, 335-336, 109 A.2d 344, and cases there cited. On all the evidence viewed in the light most favorable to the Jacksons, the jury, acting fairly and reasonably, could have found justly that Rogers & Son failed to construct the house and assemble the materials in "a good workmanlike manner" or a "good workmanlike construction" as that standard was established by the practices in that immediate vicinity. As to allegation numbered 1 Rogers' brief claims the trial court should have stricken it from consideration by the jury because the evidence conclusively showed the allegation had nothing to do with Rogers & Son; that while the court in its 624 charge instructed the jury that anything done wholly by National Homes would not be charged against Rogers, the court still left for the jury's deliberations the matter of the alleged cutting of the cap or plate; that this was wholly the act of National Homes and not Rogers; and that submission of this allegation to the jury cannot but have been prejudicial error. The evidence was undisputed that the top plate, i. e. the cap, along the easterly side of the house, has about a ten inch cut entirely through it; that the cut was made by National Homes for the vent pipe to go through. The undisputed evidence also showed that the applicable FHA Minimum Construction Requirements in paragraph 408-F.6 provided as follows: "Plates a. when plates are cut for piping or duct work, install steel angle tie for plate and bearing for joists." The undisputed evidence tended to show no steel angle tie was installed; the Jacksons' evidence tended to show that where the plate was cut it had nothing to support it; that there was no tie completely across the house from the sill to the rafter; that any wind will cause it to wave and that caused damage to the house. The Jackson declaration did not allege the cutting of the cap or plate but the failure of Rogers & Son to "Provide a solid, continuous cap or plate along the easterly side of said house". Under the charge to the jury and the evidence there was no error in submitting this issue to the jury. As to allegation numbered 2 all that Rogers' brief claims is that "it conclusively appears that the panel with the shoe or lower plate was installed in condition as supplied by National Homes. To submit any question having to do with the alleged notches or cuts in the lower platenot being the act of Rogersconstituting prejudicial error. It should have been stricken." The undisputed evidence showed that the shoe or lower plate along the easterly side of the house was notched out by National Homes to allow the vent pipe to pass into the outside wall and that it was installed by Rogers & Son in the same condition as supplied by National Homes. There was no evidence that any steel angle tie was installed and the Jacksons' evidence tended to prove that the bottom plate was not completely continuous and solid along the easterly side of the house; that the top of the shoe was cut and that the cut in the shoe weakened the strength of that wall. The Jackson declaration did not allege the notching or cutting in the lower plate but the failure of Rogers & Son to "Provide a solid, continuous unnotched shoe along the easterly side of said house." Under the charge to the jury and the evidence there was no error in submitting this issue to the jury. Under the allegation numbered 3 in the Jackson declaration their evidence tended to prove that the gable end of the house was made up of panels, having a stud frame with a plywood covering, that both a vertical stud and a horizontal nailing stud had been removed from the gable, that the gable buckled out, that you could see right through the gable end and the removal of the studs weakened the strength and durability of the east gable. The submission of the issue made by allegation numbered 3 was without error. Rogers & Son claim it was error to submit Jackson's allegation numbered 4 to the jury because there is no evidence in the case which justified it. They quote the testimony of their witness, Henry Lake, that the footing was down below the frost line on the east side of the house and well below frost on the other three sides; that a trench or ditch at least 4 feet deep was first dug around the entire basement and he then poured cement wall in the ditch. Rogers & Son claim this testimony was not denied. The FHA Minimum Construction Requirements received in evidence provide that the foundation excavation shall extend below the prevailing frost line, at least one foot below natural grade and below the finish grade not less than 4 feet. The Jackson evidence was that the east side of the foundation wall was about 14 inches, plus or minus an inch, below the grade and that 625 it was above the frost line. Because the evidence was conflicting there was no error in submitting allegation numbered 4 to the jury. Rogers & Son claim it was reversible error for the trial court to submit Jacksons' allegation numbered 6 to the jury because, they say, a search of the exhibits and record fails to disclose any reason either as to law or fact which would require Rogers to provide gravel backfill for the foundation wall; that to let the jury deliberate on allegation numbered 6 was merely to open the door to speculation and conjecture; that it was too conjectural and remote to be regarded as damages; and that the evidence from Jacksons' own expert would indicate that the earth backfill is proper. The written contract and specifications make no mention of backfill. The FHA Minimum Construction Requirements received in evidence state: "Earth backfilling shall be placed carefully against foundation walls and shall be well tamped. Debris or frozen earth shall not be used for backfilling". Jacksons' expert did testify in cross examination that earth backfill is correct but he also testified in direct examination that in his opinion the backfill used was excavated material, which is not porous; that the wall was not properly backfilled; that it froze and expanded and pushed the wall in; that it caused the wall to fracture; that the usual way of backfilling is to put porous material on top of land tile, so it will take the rain and won't freeze, so it will be carried off. It was for the jury to decide which of his testimony to accept. Sparrow v. Cimonetti, 115 Vt. 292, 298, 58 A.2d 875 and cases there cited. It was also for the jury to decide, on all the evidence, whether the FHA requirements were complied with, so allegation numbered 6 was properly submitted. Rogers & Son contend the contract itself is specific regarding what they were bound to do to provide a waterproof basement and because they did what the written contract provided they were to do the trial court erred in submitting that issue to the jury. The Jacksons agree that Rogers & Son are bound by the terms of their contract as regards the waterproofing of the foundation, that the contract is specific in one respect on this point and that the coat of Han-a-dex mentioned in the contract was applied. But the Jacksons claim that under the contract the coat of Han-a-dex should have been applied after a ½ inch thick portland cement plaster coat had previously been applied to the foundation wall. What we have said supra in holding that paragraph 406-G2.a of the FHA Minimum Property Requirements was properly received in evidence covers the issue now under discussion. The evidence was undisputed that the basement was not waterproof and that no plaster coat of portland cement was applied to the foundation wall. This was repeatedly referred to in the evidence as a "parge coat." Allegation numbered 7 in the Jackson declaration was properly submitted to the jury and the exception is not sustained. With regard to their exception to the submission of the allegation numbered 9 all that Rogers & Son say in their brief is that the testimony that a foot of ¾ inch stone was placed on the drainage tile was not refuted; thus, to submit this question to the jury constituted error. Study of the transcript reveals that evidence presented by the Jacksons showed that there were not 12 inches of cover over the drainage tile, that the cover was of gravel and that it was not above the top but only to about the top of the tile. Paragraph 406-D3.b of the FHA Minimum Property Requirements provides that the drain tile be covered with one foot of gravel, so that issue was for the jury to determine and the exception is without merit. After the verdicts were rendered and before the judgments were entered Rogers & Son filed a motion to set aside the verdicts. This motion was overruled and Rogers & Son were allowed an exception. They have briefed the following grounds: "a. The verdicts are not supported by the evidence; b. There is no evidence in the cases which 626 warrants the verdicts as rendered; c. There is no evidence in the case which supports and justifies the verdict in the case of Jackson v. Rogers for the sum of $950; d. The verdicts as rendered are entirely inconsistent with the theories upon which the cases were tried." They treat the points together. The only evidence as to damages in the case of Jackson v. Rogers & Son consisted of three items: cost to repair the foundation wall, including a parge coat, approximately $1,000; cost of putting the floor in the condition specified in the contract, $400; cost of putting the gable end and the easterly wall of the house in the condition specified in the contract, $65. Rogers & Son claim this raises the question as to what is a correct rule of damages and that they believe it to be "market value". Rogers & Son claim the Jackson house was completed and if its market value was no less by reason of the alleged shortcomings of Rogers & Son then the Jacksons have suffered no damage. They also claim the record is silent as to any depreciated value of the Jackson house, by reason of any of the alleged defects, and thus it follows that there was no evidence in the case on which any award of damage could be found. The only evidence as to damages in the case of Rogers & Son v. Jacksons was that the balance of $500 on the price for the completed home had not been paid, which the Jacksons admitted but claimed that the house had not been completed. In the Jackson case v. Rogers the court charged that, if entitled to damages at all, the plaintiffs were entitled to damages measured by the difference in worth or value of what they contracted for and what they got, as to each item and that evidence of the cost of putting items into their contractural state was of some relevance in enabling the jury to measure the difference in value as the court had described it, and that the jury could find the damages only from the evidence, not from speculation or conjecture. The court further charged that Rogers & Son could not be held for anything done wholly by National Homes which the jury might find to be a violation of the contract but that Rogers & Son could only be held for what they or their men did or failed to do that was a breach of the contract, as the jury found it to be. The court also charged that, if entitled to damages, the Jacksons were entitled to interest at the rate of 6% on their damages from the time they took the house to the date of the verdict. In the Rogers case v. the Jacksons the court charged that to be entitled to recover the unpaid balance of $500 balance on the contract price, which the Jacksons conceded had not been paid, Rogers & Son must show either that the contract was completed or that they had been excused from further performance because it had been prevented by the Jacksons or was excused under some term of the contract as the jury found it to be. In that connection the court instructed that the jury would want to consider, among other things, paragraph 6 of plaintiffs' exhibit 1, which was the Construction Agreement and the provisions of the schedule of payments on the reverse side of plaintiffs' exhibit 1. The court charged if the jury found Rogers & Son entitled to damages the amount would be $500 plus interest at 6% from the date of completion or prohibition or excuse to the date of the verdict. No exceptions were taken at all to the charge relating to damages so it became the law of the trial. Senna v. Gero, 118 Vt. 331, 335-336, 109 A.2d 344, and cases there cited. Rogers & Son claim the only evidence as to the amount of the Jacksons' claim totaled $1,465 and, therefore, we must conclude that, if the Jacksons were entitled to any money verdict, they would be entitled to the amount the evidence showed, $1,465. The total amount of the Jacksons' claim as shown by the evidence was not $1,465 but approximately that amount. The evidence was conflicting whether the Jacksons were entitled to recover *627 each of the items they claimed as damages. Therefore, the amount to be awarded rested in the judgment of the jury. Mullet v. Milkey, 113 Vt. 42, 45, 29 A.2d 806 and cases there cited. The jury may well have disallowed the Jacksons' claims of $400 for the floor and $65 for the gable end and allowed $950 for the foundation wall which was approximately the amount shown by the evidence. If the verdict can be justified upon any reasonable view of the evidence, it must stand. To warrant interference where there is no standard of damages disclosed by a contract, or otherwise ascertainable by exact evidence of pecuniary loss, the amount must be clearly shown to have been grossly insufficient or excessive and the fact that the verdict has received the express approval of the trial court inclines us strongly in its favor. Cenate v. Hunter, 115 Vt. 402, 404, 62 A.2d 645, and cases there cited. Moreover, Rogers & Son have failed to show that they were prejudiced by the fact that the verdict was $950 rather than $1,455, which they claim the verdict should have been if it was to be rendered for the Jacksons. The error if any, in this respect would not have been reversible error. Bailey v. Central Vt. Ry. Inc., 113 Vt. 433, 441, 35 A.2d 365. As we have stated supra in the case of Rogers & Son v. the Jacksons the evidence was conflicting whether the $500 was due and owing. The jury's verdict decided it was not and the evidence justified the verdict. In their brief Rogers & Son say "we can deduce that the jury offset the $500 against the $1,465, but if that were to be assumed, it would constitute error because both parties would not be entitled to recover." There again, it would not be reversible error because Rogers & Son would not have been harmed. Bailey v. Central Vt. Ry. Inc., supra. We find no error in the denial of the motion to set aside the verdicts. In each case the judgment is affirmed.	{ "pile_set_name": "FreeLaw" }
877 F.2d 58 Walcott (Elmer)v.Walcott (Dorothy S.) NO. 89-3068 United States Court of Appeals,Third Circuit. MAY 24, 1989 1 Appeal From: D.V.I. 2 AFFIRMED.	{ "pile_set_name": "FreeLaw" }
649 P.2d 775 (1982) Christopher Lee HODGES, Appellant, v. The STATE of Oklahoma, Appellee. No. M-81-762. Court of Criminal Appeals of Oklahoma. August 3, 1982. Richard B. Talley, Pamela Sue Holtzclaw, Norman, for appellant. Jan Eric Cartwright, Atty. Gen., Dena L. Bates, Asst. Atty. Gen., Oklahoma City, for appellee. OPINION BUSSEY, Judge: The appellant was convicted of Operating a Motor Vehicle While Under Suspension, in 776 the District Court of Cleveland County, Case No. CRM-81-741, and was fined Fifty Dollars ($50) plus costs. Following this Court's Order of March 2, 1982, the record was supplemented with a certified copy of a formal judgment and sentence, in accordance with Bush v. State, 625 P.2d 633 (Okl. Cr.App. 1981), and the appeal of this conviction is now properly before this Court. The sole question before us on appeal is whether the forwarding of the Order of Revocation or Suspension by certified mail to the appellant's home address, pursuant to 47 O.S. 1981, § 6-209, was sufficient to meet the due process requirements, as to notice, of the Fifth and Fourteenth Amendments to the Constitution of the United States and Article II, Section 7 of the Oklahoma Constitution. Both parties stipulated to the following: On August 6, 1978, the Department of Public Safety (D.P.S.) entered an Order of Revocation or Suspension notifying the appellant that his driving privileges would be terminated effective September 5, 1978, by authority of 47 O.S. 1971, § 6-206, and that he would be eligible for reinstatement within one (1) month of date of surrender; the August 6 order stated that the suspension was the result of the appellant's accumulation in excess of ten (10) points based upon the "State of Oklahoma Points Systems Regulations; the August 6 order was sent by certified mail to the appellant's current address of 1223 Caddell Lane, Norman, Oklahoma, and it was returned to D.P.S., marked "addressee unknown," on August 22, 1978; at the time of the mailing, the appellant resided at 1223 Caddell Lane, with his parents, and neither the appellant nor his parents had received any notification from D.P.S. of a certified mailing nor any other notice of the suspension. The parties also stipulated that: two years later, on August 24, 1980, D.P.S. sent, by certified mail, another Order of Revocation or Suspension with the same information as the first notice, except that the termination was to be effective September 3, 1980, and the suspension was shown to have been authorized by 47 O.S. 1971, § 6-303(d), with eligibility for reinstatement within three (3) months; this notice was mailed to 1223 Caddell Lane, in Norman, and returned "unclaimed" on September 8, 1980; neither the appellant nor his parents had any notice nor were they aware of the revocation or suspension. Additionally, on May 7, 1981, the appellant was arrested for a traffic violation in the City of Norman, and he was placed under arrest for Driving While Under Suspension. The appellant does not object to the D.P.S. administrative decision to revoke the license without a predecision hearing, as the United States Supreme Court has held in Dixon v. Love, 431 U.S. 105, 97 S.Ct. 1723, 52 L.Ed.2d 172 (1977), that such a procedure is constitutionally adequate. (The question of "notice" was not at issue in the Dixon case). In regard to "notice," the Supreme Court has previously held that all that is constitutionally required is that the method of notice be reasonably calculated to reach the intended party. Mullane v. Central Hanover Bank & Trust Co., 339 U.S. 306, 70 S.Ct. 652, 94 L.Ed. 865 (1949). That court went on to say that, "the mails today are recognized as an efficient and inexpensive means of communication." Our legislature has, in its wisdom, set forth a procedure calculated to provide notice of suspension or revocation of a drivers' license to a person situated as is the appellant in the present case. Title 47 O.S. 1981, § 6-209 provides in pertinent part as follows: The Department, upon entering an order suspending, canceling, revoking or denying an operator's or chauffeur's license, shall forward a true copy of said order by certified or registered mail, postage prepaid, in an envelope addressed to the licensee at the last-known post office address, and request the immediate return of the license to the Department of Public Safety, Oklahoma City, Oklahoma, or the order may be served upon the licensee by an authorized member of the Department. (Emphasis ours). The record before us discloses that the D.P.S. fully complied with the due process 777 notice requirement by forwarding a true copy of the Order of Revocation or Suspension to the appellant's home address via certified mail. To hold otherwise would be a usurpation of the legislative prerogative. See, State v. Thomas, 25 Wash. App. 770, 610 P.2d 937 (1980); Tobias v. State, 41 Colo. App. 444, 586 P.2d 669 (1978); Ryan v. Andrews, 50 Ohio App.2d 72, 361 N.E.2d 1086 (1976); and State v. Wenof, 102 N.J. Super. 370, 246 A.2d 59 (1968). For a contrary viewpoint see, City of Albuquerque v. Juarez, 93 N.M. 188, 598 P.2d 650 (1979), a case relied upon by the appellant. Accordingly, the judgment and sentence is AFFIRMED. CORNISH, J., concurs. BRETT, P.J., dissents. BRETT, Presiding Judge, dissenting: I would respectfully dissent. The issue is whether the fact that the appellant did not receive notice of his suspension operated to deny him the process due any defendant who is subjected to criminal penalties for his behavior. Service of notice of a license revocation or suspension by registered or certified mail is statutorily permitted. 47 O.S. 1971, § 6-209. However, it is not the validity of the suspension absent actual notice that is at issue, but rather that degree of notice which is required to impose criminal punishment. The Supreme Court has indicated that due process must be "appropriate to the nature of the case," in holding that procedural due process does apply to the suspension of one's driver's license. Bell v. Burson, 402 U.S. 535, 91 S.Ct. 1586, 29 L.Ed.2d 90 (1970). A case on point with the matter now before us is City of Albuquerque v. Juarez, 93 N.M. 188, 598 P.2d 650 (1979). In the facts of that opinion, as is true in the case at hand, that defendant had not received notice of the suspension of his license nor did he know about it; the certified mail giving notice had been returned; the suspension was the result of an accumulation of "points"; and the defendant was convicted of driving on a suspended license. In holding that the conviction was unconstitutional, the New Mexico court found that the inference of receipt of notice sent by certified or registered mail had been rebutted by the unclaimed envelope; and that the State had failed, in light of this fact, to prove that the defendant had either wilfully or voluntarily avoided notice of his suspension. The State cites State v. Verdirome, 36 Conn.Sup. 586, 421 A.2d 563 (1980), where a conviction for driving while under suspension was upheld. The crucial points which distinguish that case, however, are that, first, the defendant failed to file an accident report, which is some indication of wilful avoidance on his part; and, second, the evidence did not reveal that the envelope had been returned to the Department of Motor Vehicles; therefore, the inference of receipt of mailed notice had not been rebutted. The State also argues that lack of notice is irrelevant because the offense of Operating a Motor Vehicle While Under Suspension is not a crime requiring specific intent; therefore, the defendant's knowledge or lack of knowledge with regard to the wrongfulness of his act is irrelevant. I am unpersuaded that the fact that the State was not required to prove specific intent absolves the State of its duty to convict within the bounds of due process. I would reverse.	{ "pile_set_name": "FreeLaw" }
21 So.3d 825 (2009) LIFEMARK HOSP. OF FLORIDA, INC. v. LLANES. No. 3D09-1667. District Court of Appeal of Florida, Third District. November 5, 2009. Decision Without Published Opinion Certiorari denied.	{ "pile_set_name": "FreeLaw" }
FILED NOV 19 2012 UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA Clerk, U.S. District and Bankruptcy Courts ) TYRONE HURT, ) ) Plaintiff, ) ) v. ) Civil Action No. 12-1784 ) UNIT 32, 422 CHESAPEAKE STREET, S.E., ) ) Defendant. ) ---------------) MEMORANDUM OPINION The plaintiff filed his complaint and request to proceed in forma pauperis in the United States District Court for the Northern District of California. This action has been transferred to 1lv this district pursuant to 28 U.S.C. § 1404(a). le'plaintiffhas been barred from proceeding in forma pauperis both in the United States Court of Appeals for the District of Columbia Circuit and in this district court. See Hurt v. Soc. Sec. Admin., 544 F.3d 308, 311 (D.C. Cir. 2008) (per curiam) (revoking "Hurt's IFP privilege, dismiss[ing] all his appeals pending before this Court and direct[ing] the Clerk of the Court to refuse to accept any more of Hurt's civil appeals that are not accompanied by the appropriate filing fees"); Hurt v. The Declaration of Independence, No. 07-0647 (D.D.C. Jan. 9, 2009) (Order barring Hurt from proceeding in forma pauperis in this Court). Accordingly, the plaintiffs motion to proceed in forma pauperis will be denied, and his complaint will be dismissed. An Order accompanies this Memorandum Opinion. DATE: ~ v, /~~ ~fV Un ed States D1stnct Judge	{ "pile_set_name": "FreeLaw" }
J-A15028-20 J-A15046-20 NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37 IN THE INTEREST OF: S.H., A : IN THE SUPERIOR COURT OF MINOR : PENNSYLVANIA : : APPEAL OF: A.W., MOTHER : : : : : No. 3404 EDA 2019 Appeal from the Order Entered November 6, 2019 In the Court of Common Pleas of Philadelphia County Juvenile Division at No(s): CP-51-DP-0000116-2017 ***** IN THE INTEREST OF: S.A-L.H., A : IN THE SUPERIOR COURT OF MINOR : PENNSYLVANIA : : APPEAL OF: A.W., MOTHER : : : : : No. 3460 EDA 2019 Appeal from the Order Entered November 6, 2019 In the Court of Common Pleas of Philadelphia County Juvenile Division at No(s): CP-51-AP-0000785-2019 BEFORE: LAZARUS, J., KING, J., and STRASSBURGER, J.* MEMORANDUM BY LAZARUS, J.: Filed: August 13, 2020 ____________________________________________ * Retired Senior Judge assigned to the Superior Court. J-A15028-20 J-A15046-20 A.W. (Mother) appeals from the orders, entered in the Court of Common Pleas of Philadelphia, terminating her parental rights to her minor child, S.H.1 (born 12/16), pursuant to 23 Pa.C.S.A. §§ 2511 (a)(1), (2), (5), (8), and (b), and changing S.H.’s permanency goal from reunification to adoption pursuant to 42 Pa.C.S.A. § 6351(f.1).2 Upon careful review, we affirm. DHS became involved with Mother’s family on January 17, 2017, after receiving reports that Mother tested positive for PCP and marijuana at S.H.’s birth. When S.H. was four weeks old, he sustained an unexplained fractured skull. N.T. Termination Hearing, 11/6/19, at 8. As a result, on February 3, 2017, S.H. was removed from Mother’s care and placed into protective custody by the Philadelphia Department of Human Services (DHS). Trial Court Order, 2/19/17. After S.H. was placed in DHS’ custody, Mother was given the following case plan objectives: (1) complete parenting classes; (2) complete family school; (3) attend supervised visits at DHS; and (4) submit to a dual-diagnosis drug and alcohol and mental health assessment. Id. at 9. At the first permanency hearing, held in May of 2017, the goal was reunification. Trial Court Order, 5/3/2017. Mother complied with her plan objectives and ____________________________________________ 1 A/K/A S.A.-L.H. 2 The appeal docketed at 3460 EDA 2019 was transferred to this panel as a related appeal on July 8, 2020. See Order Transferring Appeal, 7/8/20. We consolidated the appeals at 3404 EDA 2019 and 3460 EDA 2019 sua sponte for ease of disposition. See Pa.R.A.P. 513. -2- J-A15028-20 J-A15046-20 appeared to have obtained stable housing with her biological mother; thus, Mother and S.H. were reunified in February of 2018. N.T. Termination Hearing, 11/6/19, at 10-11. Following reunification, DHS and CUA were unable to locate Mother and S.H. for almost three months. Id. On July 13, 2017, Mother and S.H. were found at a relative’s home. Id. at 12. A 90-day safety plan was created with that caregiver, and S.H. was enrolled in daycare; however, two days later, CUA found that Mother and S.H. had absconded the caregiver’s home. Id. Thus, on July 25, 2018, Child was placed back into DHS’ custody. While Mother had custody of S.H., S.H. was not kept up to date on his medical and dental appointments. Id. at 24. Additionally, Mother did not enroll S.H. in daycare. Id. at 12. Following S.H.’s return to DHS care, Mother was compliant with some of her objectives, but failed to obtain stable housing and employment. Id. at 13, 25. Between February 2018 and November 2019, Mother provided fourteen different addresses to CUA, almost all of which were invalid. Id. at 13-14. Mother acquired full-time employment at Speedway in Norristown in August of 2018, but quit three months later, claiming the commute was too far. Id. at 26. At the time of the termination hearing, Mother worked approximately eight hours a week, employed as a home health aide for Credence Home Healthcare. Id. at 25. -3- J-A15028-20 J-A15046-20 With regard to her court-ordered scheduled and random drug screenings, Mother was minimally compliant. Id. at 25. Between September 6, 2018 and May 29, 2019, Mother failed to complete any random drug screenings. Id. at 15. Out of the twenty-one random drug tests Mother was required to complete, she completed three. Id. Mother completed four additional drug tests on days she had selected. Id. On April 11, 2019, Mother completed a scheduled drug test following a permanency hearing. Id. at 16- 17. The sample she provided had particles floating in it, which suggested tampering. N.T. Permanency Hearing, 6/13/19, at 10-11. When asked to provide another sample that day, Mother refused. Id. Instead, Mother came back the following day to provide the sample. Id. At the termination hearing, Mother stated that she did not retake the drug test the same day because she was late for her shift as a home health aide at Aveanna. N.T. Termination Hearing, 11/6/19, at 51. Mother, however, offered no proof of her employment at Aveanna. Id. at 25-26. CUA case manager Jelea McNeil testified that Mother’s non-compliance with drug screening, inconsistent and questionable employment, and unstable housing were Mother’s greatest obstacles to reunification. Id. at 20-21. On October 21, 2019, DHS filed a petition to involuntarily terminate Mother’s parental rights to S.H. pursuant to 23 Pa.C.S.A. §§ 2115 (a)(1), (2), (5), and (8), and (b), and to change S.H.’s permanency goal to adoption pursuant to 42 Pa.C.S.A. § 6351(f.1). On November 6, 2019, following a -4- J-A15028-20 J-A15046-20 hearing, the trial court terminated Mother’s parental rights to Child and changed Child’s permanency goal to adoption. Mother filed this timely appeal.3 She raises the following issues for review: (1) Did the trial court err as a matter of law or abuse its discretion when it found that the Philadelphia Department of Human Services (DHS) met its burden to prove that the requirements of 23 Pa.C.S.A. § 2511(a) were met? (2) Did the trial court err as a matter of law or abuse its discretion when it found that DHS met its burden to prove that the requirements of 23 Pa.C.S.A. § 2511(b) were met? (3) Did the trial court err as a matter of law or abuse its discretion when it found that it was in [S.H.’s] best interest to change the permanency goal from reunification to adoption? Appellant’s Brief, at 2. In an appeal from an order terminating parental rights, the scope of review is comprehensive. In re L.M., 923 A.2d 505, 511 (Pa. Super. 2007). This Court considers “all the evidence presented as well as the trial court’s factual findings and legal conclusions.” Id. We will reverse “only if we conclude that the trial court abused its discretion, made an error of law, or lacked competent evidence to support its findings.” Id. It is well settled that “[t]he trial court is free to believe all, part, or none of the evidence presented and is likewise free to make all credibility determinations and resolve conflicts in the evidence.” In re M.G. & J.G., 855 A.2d 68, 73-74 (Pa. Super. 2004) ____________________________________________ 3The court also terminated the parental rights of Child’s father. Father did not appeal the termination of his parental rights. See Trial Court Opinion, 1/13/20, at 1. -5- J-A15028-20 J-A15046-20 (citation omitted). “If competent evidence supports the trial court’s findings, we will affirm even if the record could also support the opposite result.” In re Adoption of T.B.B., 835 A.2d 387,394 (Pa. Super. 2003) (citation omitted). The termination of parental rights is governed by 23 Pa.C.S.A. § 2511 of the Adoption Act,4 which provides, in relevant part, as follows: § 2511. Grounds for involuntary termination (a) General rule.—The rights of a parent in regard to a child may be terminated after a petition filed on any of the following grounds: (1) The parent by conduct continuing for a period of at least six months immediately preceding the filing of the petition either has evidenced a settled purpose of relinquishing parental claim to a child or has refused or failed to perform parental duties. (2) The repeated and continued incapacity, abuse, neglect or refusal of the parent has caused the child to be without essential parental care, control or subsistence necessary for his physical or mental well-being and the conditions and causes of the incapacity, abuse, neglect or refusal cannot or will not be remedied by the parent * (5) The child has been removed from the care of the parent by the court or under a voluntary agreement with an agency for a period of at least six months, the conditions which led to the removal or placement of the child continue to exist, the parent cannot or will not remedy those conditions within a reasonable period of time, the services or assistance reasonably available to the parent are not likely to remedy the conditions which led to the removal or placement of the child within a reasonable period of ____________________________________________ 4 23 Pa.C.S.A. §§ 2101-2938. -6- J-A15028-20 J-A15046-20 time and termination of the parental rights would best serve the needs and welfare of the child. * (8) The child has been removed from the care of the parent by the court or under a voluntary agreement with an agency, 12 months or more have elapsed from the date of removal or placement, the conditions which led to the removal or placement of the child continue to exist and termination of parental rights would best serve the needs and welfare of the child. *** (b) Other considerations.—The court in terminating the rights of a parent shall give primary consideration to the developmental, physical and emotional needs and welfare of the child. The rights of a parent shall not be terminated solely on the basis of environmental factors such as inadequate housing, furnishings, income, clothing and medical care if found to be beyond the control of the parent. With respect to any petition filed pursuant to subsection (a)(1), (6) or (8), the court shall not consider any efforts by the parent to remedy the conditions described therein which are first initiated subsequent to the giving of notice of the filing of the petition. 23 Pa.C.S.A. §§ 2511(a)(1), (2), (5), (8), and (b). Parental rights may be involuntarily terminated “where any one subsection of [s]ection 2511(a) is satisfied, along with consideration of the subsection 2511(b) provisions.” In re Z.P., 994 A.2d 1108, 1115 (Pa. Super. 2010). In this two-step analysis, the focus is initially on the conduct of the parent. See In re L.M., supra at 511. “The party seeking termination must prove by clear and convincing evidence that the parent’s conduct satisfies the statutory grounds for termination delineated in section 2511(a).” Id. This standard requires evidence “so clear, direct, weighty, and convincing as to -7- J-A15028-20 J-A15046-20 enable the trier of fact to come to a clear conviction, without hesitance, of the truth of the precise facts in issue.” In re T.F., 847 A.2d 738, 742 (Pa. Super. 2004). If the court decides that the parent’s conduct warrants termination of parental rights, it then engages in the second part of the analysis pursuant to 2511(b). Id. “One major aspect of [this] analysis concerns the nature and status of the emotional bond between parent and child, with close attention paid to the effect on the child of permanently severing any such bond.” Id. Additionally, the court must “equally emphasize the safety needs of the child, and should also consider the intangibles, such as the love, comfort, security, and stability the child might have with the foster parent[.]” In re N.A.M., 33 A.3d 95, 103 (Pa. Super. 2011). When changing a child’s permanency goal, the court must determine the goal in accordance with the child’s best interests, not those of the parents. See In re G.P.-R., 851 A.2d 967, 973 (Pa. Super. 2004). The “[s]afety, permanency and well-being of the child must take precedence over all other considerations.” 42 Pa.C.S.A. § 6351. Section 6351(f) provides, in pertinent part, that at each permanency hearing, a court shall determine the following: (1) The continuing necessity for and appropriateness of the placement. (2) The appropriateness, feasibility and extent of compliance with the permanency plan developed for the child. (3) The extent of progress made toward alleviating the circumstances which necessitated the original placement. -8- J-A15028-20 J-A15046-20 (4) The appropriateness and feasibility of the current placement goal for the child. (5) The likely date by which the placement goal for the child might be achieved. (5.1) Whether reasonable efforts were made to finalize the permanency plan in effect. (6) Whether the child is safe. 42 Pa.C.S.A. § 6351(f). Based upon the court’s determinations under section 6351(f), and all relevant evidence presented at the hearing, the court shall choose a permanency goal under section 6351(f.1), which provides the following relevant options: (1) If and when the child will be returned to the child’s parent, guardian or custodian in cases where the return of the child is best suited to the safety, protection and physical, mental and moral welfare of the child. (2) If and when the child will be placed for adoption, and the county agency will file for termination of parental rights in cases where return to the child's parent, guardian or custodian is not best suited to the safety, protection and physical, mental and moral welfare of the child. 42 Pa.C.S.A. § 6351(f.1). “When circumstances are such that the best interests of the child dictate a goal change to adoption, then the trial court acts well within its authority to order the goal change — even if the parent has made substantial progress toward completion of his or her permanency plan[.]” In re A.K., 936 A.2d 528, 534 (Pa. Super. 2007); see also In re N.C., 909 A.2d 818, 823 (Pa. Super. 2006) (finding goal change to adoption in best interest of child despite -9- J-A15028-20 J-A15046-20 mother’s substantial progress toward permanency plan). Additionally, at the review hearing for a child who has been removed from the parental home, the court must consider the factors mandated under section 6351. See In re D.P., 972 A.2d 1221, 1230 (Pa. Super. 2009) (citation omitted). If a parent has “cooperated with the agency, achieved the goals of his or her permanency plans, and alleviated the circumstances that necessitated the child’s original placement[,]” the agency should continue efforts to reunite the child with his or her parent. Id. (citation omitted). But, if a child welfare agency makes reasonable efforts to return a foster child to his or her biological parent, and those efforts have failed, the agency must redirect its efforts towards placing the child into an adoptive home. See In re N.C., supra at 823. Before we address the merits of Mother’s claims, we must address the shortcomings of her brief submitted for 3404 EDA 2019, the appeal of S.H.’s permanency goal change to adoption.5 Appellate briefs must conform in all respects to the briefing requirements set forth in the Pennsylvania Rules of Appellate Procedure; otherwise, they may be quashed or dismissed. See Pa.R.A.P. 2101. Regarding the summary of argument section of an appellate brief, Rule 2118 requires a “concise, but accurate, summary of the arguments presented in support of the issues in the statement of questions involved. ____________________________________________ 5 Mother submitted separate, materially different, briefs for each appeal. - 10 - J-A15028-20 J-A15046-20 Pa.R.A.P. 2118. Here, Mother’s summary of argument describes circumstances wholly unrelated to those at hand. Additionally, in the first line of the summary, Mother asks this Court to reverse the trial court’s decision, but in the last line, she asks this Court to affirm. See Appellant’s Brief, at 8- 9.6 Additionally, Mother’s argument section is woefully underdeveloped. Regarding S.H.’s permanency goal change to adoption, Mother’s argument consists of a cut-and-paste of the rationale included in the trial court’s opinion, followed by one paragraph of unsubstantiated conclusions about Mother’s progress toward her goals. See Appellant’s Brief, at 26-27. She includes no references to the record, as required by Pa.R.A.P. 2119(c). Mother’s section 2511(a)(2) analysis, in particular, appears to include pages of cut-and-pasted material from an entirely different appeal. See Appellant’s Brief, at 13-14. See also Pa.R.A.P. 2101 (if defects in brief of appellant are substantial, the appeal may be quashed). In this instance, the defects are indeed substantial; however, in the interests of justice and expediency, we will address Mother’s permanency goal change. We have carefully reviewed the record, and we are fully satisfied that the trial court opinion properly disposes of the permanency goal change issue Mother has raised on appeal. See Trial Court Opinion, supra at 5-6 (Mother refused to participate in court-ordered drug testing to ensure her sobriety; ____________________________________________ 6 This appears to be a cut-and-paste of filings from a different case. - 11 - J-A15028-20 J-A15046-20 Mother refused to retake a drug screen after her initial sample appeared to be tampered with; Mother was unable to secure safe and permanent housing for S.H., providing 14 different addresses in 14 months; Mother failed to comply with many of her objectives, specifically drug screens, employment and housing; Mother’s failure to comply with her plan objectives undermined S.H.’s safety; and S.H.’s permanency interests were best served by changing the goal to adoption). After careful review, we are also satisfied that the trial court opinion properly disposes of Mother’s appeal from the order terminating her parental rights. Here, the evidence of record supports the trial court’s finding that termination was proper pursuant to sections 2511(a)(1), (2), (5) and (8). See Trial Ct. Op., supra at 7-13 (finding: (1) pursuant to section 2511(a)(1), Mother’s refusal to comply with her single case plan objectives, failure to acquire stable housing, failure to acquire more than eight hours a week of work, failure to properly address her PCP and marijuana usage, and failure to complete random drug screenings evidenced settled purpose of relinquishing parental claim to S.H. and failure to perform parental duties; (2) pursuant to 2511(a)(2), “incapacity,” “refusal,” and “neglect” exists given Mother’s failure to comply with random drug screenings despite fact she knew compliance would reinstate community visits and potentially eliminate need for future random drug screenings, Mother’s failure to keep S.H. up to date medically in her custody, and Mother’s failure to comply with her objectives, which left S.H. - 12 - J-A15028-20 J-A15046-20 without essential parental care; (3) pursuant to sections 2511(a)(5) and (8), at the time of the hearing S.H. had been out of Mother’s care for 28 of previous 32 months, Mother’s unwillingness to comply with random drug screening, find stable housing, or find adequate employment shows circumstances leading to S.H.’s placement are unresolved and Mother is unwilling to resolve them, adoption is in S.H.’s best interest as he has adjusted well to pre-adoptive home and built strong bond with foster parent). Further, the trial court opinion accurately explains why Mother’s parental rights were correctly terminated pursuant to section 2511(b). See Trial Ct. Op., supra, at 14-15 (finding: S.H. would not suffer irreparable emotional harm if Mother’s parental rights were terminated; S.H. does not seek comfort or care from Mother; S.H. seeks comfort and care from others, including his foster parents; testimony shows S.H.’s primary attachment is with his foster parents; S.H. is no closer to reunification than when the case was initiated in 2017; Mother had not been able to meet S.H.’s needs for 32 months prior to the termination hearing). We conclude that the trial court’s decisions to terminate Mother’s parental rights under sections 2511(a) and (b) are supported by clear and convincing evidence. In re L.M., supra. We also conclude that the trial court correctly determined that it was in S.H.’s best interests to change the permanency goal from reunification to adoption pursuant to 42 Pa.C.S.A. § - 13 - J-A15028-20 J-A15046-20 6351(f.1). In re: A.K., supra. We find no abuse of discretion. In re L.M., supra. The trial court opinion, authored by the Honorable Daine Grey, Jr., properly disposes of the issues Mother has raised on appeal. Therefore, we affirm the trial court’s orders based on Judge Grey’s opinion, and we direct the parties to attach a copy of that opinion in the event of further proceedings. Orders affirmed. Judgment Entered. Joseph D. Seletyn, Esq. Prothonotary Date: 8/13/20 - 14 -	{ "pile_set_name": "FreeLaw" }
767 F.2d 913 Shawv.Hunt 85-6025 United States Court of Appeals,Fourth Circuit. 6/3/85 1 E.D.N.C. AFFIRMED	{ "pile_set_name": "FreeLaw" }
622 F.2d 597 Roy E. McGUIRK, Petitioner, Appellant,v.Michael FAIR et al., Respondents, Appellees. No. 79-1653. United States Court of Appeals,First Circuit. Argued April 10, 1980.Decided June 19, 1980. 1 Stephen Hrones, Boston, Mass., for petitioner, appellant. 2 Barbara A. H. Smith, Asst. Atty. Gen., Boston, Mass., with whom Francis X. Bellotti, Atty. Gen., Stephen R. Delinsky, Asst. Atty. Gen., Chief, Criminal Bureau and Robert V. Greco, Asst. Atty. Gen., Criminal Bureau, Boston, Mass., were on brief, for respondents, appellees. 3 Before COFFIN, Chief Judge, BOWNES, Circuit Judge, LOUGHLIN,* District Judge. 4 LOUGHLIN, District Judge. 5 The issue in this habeas corpus appeal is whether the defendant voluntarily pled guilty to an indictment charging second degree murder. The defendant was indicted by the Grand Jury for the County of Middlesex in the Commonwealth of Massachusetts for murder in the first degree. On July 14, 1975 defendant pled guilty to murder in the second degree and was sentenced to a life term at the Massachusetts Correctional Institution at Walpole. Approximately a year later on July 16, 1976 the defendant filed a motion for a new trial requesting that he be allowed to withdraw his plea of guilty. The basis for his motion is that he was not informed relative to the distinction between murder in the first and second degree or as to the elements of second degree murder. 6 On June 29, 1974, the defendant returned to his home about 6 o'clock in the morning. He had been drinking and had consumed some drugs. In his apartment he found a young woman whom the defendant had allowed to live there in the past. With the young woman was the victim, Nicholas Zoffreo. The remaining undisputed facts are set forth in the opinion of the Massachusetts Supreme Judicial Court, 380 N.E.2d 662, 664-665 (1978): 7 The defendant explained his anger at finding his apartment being used in his absence and stated that an argument had ensued. The defendant then said: "Nicky came towards me; I thought he was going to hit me or something. I just started hitting on him, and I didn't stop until I realized what I just kept on hitting him, I didn't realize I killed him. I just panicked from there." The defendant admitted striking the first blow and also stated that he was sorry for what had happened for he was "not a person that goes around killing people like that." The detective who had investigated the homicide testified at the plea hearing. He related statements from an eyewitness that the defendant had thrown a fit of temper and had beat, kicked, and strangled the victim with a rope or wire and suffocated him with pillows and blankets. The detective said that the defendant had made an admission to the person who had helped him dispose of the body in the Charles River that he had received rope burns as a result of the pressure used in garrotting the victim. After informing the defendant of the constitutional rights being waived by him and the maximum penalty for murder in the second degree and inquiring into the voluntariness of the plea, the judge accepted the guilty plea. 8 A petition for writ of certiorari was denied by the United States Supreme Court. A petition for writ of habeas corpus, filed in the Federal District Court for the District of Massachusetts, was denied. 9 Defendant at the time of his arraignment on October 23, 1974 was represented by appointed counsel, presently a member of the judiciary, who continued to represent him through his guilty plea. 10 Trial counsel and the prosecutor had discussions about a change of plea from first degree murder to a plea to murder in the second degree and a plea to manslaughter. These discussions took place from May 12, 1975 up to the date of the plea. Counsel advised the defendant against a plea to second degree murder. Defendant decided to plead to second degree murder telling his counsel: "I want to get it over with. I don't want to go through it. I want to finish it right here and now. I killed him, and I've got to pay the price and I want to get it over with right now." 11 Conferences between defense counsel and the defendant went on over a period of two months about the evidence the Commonwealth had and possible pleas to murder in the second degree and manslaughter. Defense counsel didn't want the defendant to plead guilty to second degree murder. It was at this point as heretofore stated the defendant stated he wanted to get it over with. 12 At the conclusion of the evidentiary hearing, before the U.S. District Court, the court indicated to defense counsel that he had practically pleaded with him to put the defendant on the stand to testify as to his state of mind, but counsel declined to do so. See Henderson v. Morgan, 426 U.S. 637, 639, 96 S.Ct. 2253, 2255, 49 L.Ed.2d 108 (1976). 13 It is the contention of the defendant that his plea is invalid under Henderson v. Morgan, supra. The question presented in Henderson v. Morgan, supra, 638, 96 S.Ct. 2254 is whether a defendant may enter a voluntary plea of guilty to a charge of second degree murder without being informed that intent to cause the death of his victim was an element of the offense. The holding of Henderson was very narrow, however, and its facts are distinguishable from those of the instant case. The Court held that the defendant must receive "real notice" of the offense to which he pleaded, 426 U.S. at 645, 96 S.Ct. at 2257, the Court was not erecting a per se rule that failure to inform the defendant of the technical elements of an offense, which are often confusing even to lawyers, renders involuntary a plea of guilty to that offense. The Court wrote: 14 "Normally the record contains either an explanation of the charge by the trial judge, or at least a representation by defense counsel that the nature of the offense has been explained to the accused. Moreover, even without an express representation, it may be appropriate to presume that in most cases defense counsel routinely explain the nature of the offense in sufficient detail to give the accused notice of what he is being asked to admit. This case is unique because the trial judge found as a fact that the element of intent was not explained to respondent." 426 U.S. at 647, 96 S.Ct. at 2258. 15 In the case before us, the experienced trial counsel sufficiently explained second degree murder to petitioner to give him notice of the offense to which he pleaded. We agree with the finding of the district court: 16 "(D)efense counsel's extended discussion with the petitioner about the difference between first and second degree murder, the chances for conviction of first degree murder, the possibility of a manslaughter plea and his analysis of the evidence and inferences which the jury could draw all combined to fairly appraise him of the crime to which he ultimately pleaded. 17 "Petitioner may well have received a more effective explanation of second degree murder than a formal incantation of technical elements would have given him." 18 We find it implausible, considering the statement about the killing the accused made to the trial judge, the description of the events given by the detective to the judge in the accused's presence, and the conference between the accused and his counsel, that petitioner did not have real notice of the offense to which he pleaded guilty. For the court to find constitutional infirmity in petitioner's guilty plea would violate rather than follow Henderson. 19 Affirmed. * Of the District of New Hampshire, sitting by designation	{ "pile_set_name": "FreeLaw" }
109 F.3d 773 U.S.v.Lesa Denise Ezell Harmon NO. 96-6086 United States Court of Appeals,Eleventh Circuit. Feb 25, 1997 S.D.Ala., 103 F.3d 149 1 DENIALS OF REHEARING EN BANC.	{ "pile_set_name": "FreeLaw" }
8 Cal.2d 180 (1937) RICHARD BELCHER, Respondent, v. C. F. AARON et al., Appellants. Sac. No. 5074. Supreme Court of California. In Bank. January 21, 1937. Tobin & Tobin, Rich, Weis & Carlin and Geo. A. Clough for Appellants. 181 Richard Belcher, in pro. per., for Respondent. WASTE, C.J. Pending the prosecution of a suit to foreclose a mortgage, the defendant bank, as mortgagee, made ex parte application for and procured the appointment of the defendant Aaron as receiver. The mortgagor, who is not a party to the present action, thereafter moved to vacate the order appointing receiver and it was set aside within a month after its entry. Upon appeal, the vacating order was affirmed. (Hibernia S. & L. Soc. v. Ellis Estate Co., 132 Cal.App. 408 [22 PaCal.2d 806].) Subsequently, a decree of foreclosure was entered, the property sold pursuant thereto and a deficiency judgment entered. Prior to the sale the mortgagor had assigned to the plaintiff in this action "all of its right, title, claim, interest and estate in and to all moneys collected by C. F. Aaron, alleged receiver in the above-entitled action, and to all moneys, rents, etc., uncollected by said alleged receiver and now due and payable from tenants of the property". This assignment was in payment for legal services rendered by plaintiff for and on behalf of the mortgagor throughout this litigation. The assignment was held to be valid, based on sufficient consideration and untainted by fraud in the case of Hibernia S. & L. Soc. v. Belcher, 4 Cal.2d 268 [48 PaCal.2d 681], wherein the mortgagee unsuccessfully sought to have it set aside. In this action the plaintiff, as assignee of the accrued rents, seeks to recover from the defendant Aaron the rents collected by him subsequent to the entry of the order vacating his appointment as receiver. The trial court made findings and gave judgment in favor of the plaintiff and against Aaron in the sum of $1931.44, representing the aggregate of the rents collected by Aaron after his removal as receiver, less deductions totaling $338.81, for sums necessarily expended by him to keep the premises in a habitable and rentable condition. Upon this appeal Aaron urges that the moneys so collected by him, together with additional sums furnished by the defendant bank, as mortgagee, had been expended by him in payment of taxes on the property and that he should not, therefore, be answerable for the same. We cannot accept this contention. 182 [1] In our most recent decision in this protracted litigation (Hibernia S. & L. Soc. v. Belcher, 4 Cal.2d 268, 273 [48 PaCal.2d 681, 683], we declared, among other things, that "The receiver (Mr. Aaron) had no legal right to receive rents which accrued after November 27, 1931, the date of the order revoking his appointment as receiver. An order removing an executor, administrator, guardian or receiver is selfexecuting. The appeal taken from such order in the instant case did not restore his powers. [2] Nevertheless the receiver collected some of the rents ..." It necessarily follows that judgment was properly entered in favor of plaintiff as assignee of the rents collected by Aaron at a time when he was not serving as receiver. In collecting rents subsequent to his removal as receiver, Aaron was acting in his individual capacity and without authority. [3] Nor do we think the fact that he employed the rents so collected to pay taxes on the mortgaged property relieves him from liability to the plaintiff as assignee thereof. In this regard, he was a mere volunteer. (Bibby v. Dieter, 15 Cal.App. 45, 48 [113 P. 874].) The mortgage did not hypothecate the rents, issues and profits and the mortgagor-assignor, being in possession of the mortgaged premises, was therefore entitled to the rents until the sale of the property and consequently was free to assign them to the plaintiff prior to such sale. (Casey v. Doherty, 116 Cal.App. 42, 43 [2 PaCal.2d 495].) The effect of Aaron's improper action in collecting rents and paying taxes after his discharge as receiver, which he testified was done under instructions from the mortgagee bank, was to increase the value of the mortgage and to make rents available to the mortgagee at a time when it was not entitled to them. Therefore, it was proper to hold the defendant Aaron answerable for the rents collected and expended by him without authority. None of the cases cited in the appellants' briefs presented a situation comparable to the one here involved. Our conclusion on the merits makes it unnecessary to discuss the technical point having to do with the alleged insufficiency of the bill of exceptions. The judgment is affirmed. Thompson, J., Shenk, J., Edmonds, J., Curtis, J., and Seawell, J., concurred.	{ "pile_set_name": "FreeLaw" }
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544 U.S. 1062 SHANKv.UNITED STATES. No. 04-1436. Supreme Court of United States. May 31, 2005. 1 C. A. 4th Cir. Certiorari denied. Reported below: 395 F. 3d 466.	{ "pile_set_name": "FreeLaw" }
FILE COPY THE SUPREME COURT OF TEXAS Post Office Box 12248 Austin, Texas 78711 (512) 463-1312 November 30, 2012 Mr. Scott P. Stolley Ms. Cynthia Hollingsworth Thompson & Knight LLP Hollingsworth Walker LLP One Arts Plaza Campbell Centre II 1722 Routh Street, Suite 1500 8150 N. Central Expressway, Suite 100 Dallas, TX 75201-2533 Dallas, TX 75206 RE: Case Number: 11-0252 Court of Appeals Number: 07-10-00197-CV Trial Court Number: 96,370-E Style: AARON FELTON v. BROCK LOVETT, D.C. Dear Counsel: Today the Supreme Court of Texas issued an opinion in the above-referenced cause. A copy of the opinion can be obtained through Case Search on our Court’s webpage at: http://www.supreme.courts.state.tx.us/. Sincerely, Blake A. Hawthorne, Clerk by Claudia Jenks, Chief Deputy Clerk cc: Caroline Woodburn Ronald D. Nickum Peggy Culp	{ "pile_set_name": "FreeLaw" }
Opinion issued June 19, 2018 In The Court of Appeals For The First District of Texas ———————————— NO. 01-17-00551-CV ——————————— JACOBS FIELD SERVICES NORTH AMERICA, INC., JACOBS ENGINEERING GROUP, INC., AND JACOBS ENGINEERING, INC., Appellants V. TROY WILLEFORD, Appellee On Appeal from the 127th District Court Harris County, Texas Trial Court Case No. 2015-65988 MEMORANDUM OPINION In this interlocutory appeal, Jacobs Field Services North America, Inc., Jacobs Engineering Group, Inc., and Jacobs Engineering, Inc. (collectively “Jacobs”) appeal from the trial court’s order denying its motion to dismiss Troy Willeford’s claims of negligence, gross negligence, strict liability, and product defect against them. Jacobs contends that the trial court erred in denying its motion to dismiss because the certificate of merit filed with Willeford’s petition fails to meet the requirements of section 150.002 of the Texas Civil Practice and Remedies Code. See TEX. CIV. PRAC. & REM. CODE ANN. § 150.002 (West 2011). Jacobs also asserts that its motion to dismiss was not untimely and that the trial court was permitted to consider extrinsic evidence in ruling on its motion. We reverse and remand. Factual and Procedural Background Willeford sued Jacobs, as well as numerous other entities not parties to this appeal,1 for injuries he allegedly sustained after responding to the scene of a workplace accident involving his co-worker, Maurice Ware, at the Far East Coker Unit (“FECU”) of the ExxonMobil refinery in Baton Rouge, Louisiana.2 Willeford 1 The other named defendants are ExxonMobil Corporation, ExxonMobil Research & Engineering Company, ExxonMobil Refinery & Supply Company, Siemens Industry, Inc., AWC, Inc., Flowserve Corporation, Hydradyne, LLC, ISC, Constructors, LLC, Konecranes, Inc., NorWest Hydraulic & Pneumatic, Inc., Triad Control Systems, L.L.C., Triad Electric & Controls, Inc., ExxonMobil Global Services Company, Bayside Engineering Group, Inc., and Vallourec Drilling Products USA, Inc. f/k/a VAM Drilling USA, Inc. 2 On November 27, 2014, Ware was working at the FECU when the cable from a free falling bit and drill stem struck him, amputating his legs. After Ware filed suit, Jacobs moved to dismiss his claims against it under Chapter 150 of the Texas Civil Practice and Remedies Code. The trial court denied the motion, and Jacobs appealed. On November 21, 2017, the Fourteenth Court of Appeals issued a memorandum opinion dismissing the appeal for lack of jurisdiction. Jacobs Field 2 asserted claims against Jacobs for negligence, gross negligence, strict liability, and product defect. In his amended petition, under the section entitled “Factual Allegations Regarding the Role of Each Defendant,” Willeford alleged, in pertinent part: 4.9 Jacobs Engineering, Inc. Upon information and belief, Jacobs Engineering, Inc. completed the detailed design for the project to modify the Delayed Coker Unit in February 2007 to reduce the risks associated with manual unheading of the top heads. The factual support for this allegation is found in Mosenteen3 exhibit 2, p. 1, ¶ 2, as well as in Mosenteen’s testimony: Deposition of Jon Mosenteen: Q: And was Jacobs Engineering ultimately in charge of the design of that system in 2007 and ‘8? A: To the best of my knowledge, Jacobs Engineering was responsible for the overall design but they had some subcontractors, I believe who were assisting in the—in the design aspect of it. .... 4.10 Jacobs Field Services North America, Inc. Upon information and belief, Jacobs Field Services North America, Inc. provided programming and HMI configuration and was otherwise heavily involved in the upgrade for the PLCs in the Far East Coker Unit in 2013.4 The factual support for this is found in Mosenteen exhibit 5, Servs., N. Am., Inc. v. Ware, No. 14-17-00543-CV, 2017 WL 5618192 (Tex. App.— Houston [14th Dist.] Nov. 21, 2017, no pet.). The parties later settled. 3 Mosenteen, an ExxonMobil employee, was the coker operations supervisor in Baton Rouge at the time of the accident. 4 “PLC,” or Programmable Logic Controller, is a specialized industrial computer which has been specifically designed to operate reliably in harsh usage 3 pages 60-61 (ExxonMobil Global Services Company procurement identifying Jacobs Engineering Group Inc. and Jacobs Field Services North America Inc. as providing requested work) and in Mosenteen’s testimony: Deposition of Jon Mosenteen: A: Page 5 of 7 of what I believe is labeled Exhibit 2, Question No. 5, Jacobs Engineering sought to have completed the design programming of the PLC for the 2013 PLC upgrade project. .... Q: Detail design, what does that mean? A: Well, the PLC is a series of, as best I can explain it, a series of yes/no questions and so it’s logic that gets you to an end solution or an activity or permissi[on] for something to work. Jacobs provided that programming, provided that service to be able to do that project. Q: Okay. Did Jacobs actually come on-site? A: I believe they did. Q: And so essentially, in Exxon’s mind, Jacobs was ultimately responsible for the correct programming of the PLC and HMI, fair? A: For the correct implementation of the programming, yes, sir. environments and conditions, such as refineries and manufacturing. “Programming” a PLC means writing the software that controls the way the PLC behaves. “HMI,” or Human Machine Interface, is the graphical user interface for the PLC which allows the PLC to communicate with the operator. “Configuring” an HMI means using a graphical computer programming language to create the HMI. 4 4.11 Jacobs Engineering Group, Inc. Upon information and belief, Jacobs Engineering, Group, Inc. provided programming and HMI configuration and was otherwise heavily involved in the upgrade for the PLCs in the Far East Coker Unit in 2013. The ExxonMobil procurement document referenced in Willeford’s amended petition identifies Jacobs’s scope of work as follows: WORK REQUESTED: PROVIDE PROGRAMMING AND HMI CONFIGURATION FOR THE NEW UPGRADED PLC[]S FOR THE FAR EAST COKER CUTTING CONSOLES. FOUR NEW PLC[]S AND HMI[]S WILL BE INSTALLED ONE FOR EACH DRUM, ALSO SITE ACCEPTANCE AND START UP SERVICES WILL BE PROVIDED.5 PROVIDE INTOOLS WIRING. To his amended petition, Willeford attached a certificate of merit affidavit of Gregg S. Perkin, a registered professional engineer in the field of mechanical engineering. A copy of Perkin’s curriculum vitae and a list of the materials he reviewed in preparing the certificate were attached to his affidavit. In his affidavit, Perkin stated that he has a Bachelor of Science in Mechanical Engineering and that he is a registered professional engineer in the field of mechanical engineering in the State of Texas. Perkin’s affidavit further stated, in relevant part: In mid-1986, I began my work as an independent professional Mechanical Engineering consultant. 5 The site acceptance service refers to the development of site acceptance test procedures used during site acceptance testing performed by ExxonMobil. Jacobs was not responsible for performing the site acceptance test. 5 Since 1995, I have been employed by [Engineering Partners International] as an independent engineering consultant and Professional Engineer in the areas of detailed safety analysis of highly complex process units and systems within the processing industries and risk assessment for various industries. In these regards, and over the course of my professional career, I have actively worked in the areas of equipment design, manufacture, fabrication, assembly, construction, testing, operation, maintenance and retrofitting. As one (1) of EPI’s Principal Engineers, I have often been actively engaged in providing design engineering and independent engineering reviews and analysis. I have been independently retained to conduct product design analysis, design equipment, failure analysis, risk and hazard analysis, and provide other independent consulting services related to mechanical equipment and systems. .... Based on my education and professional experience, I have personal knowledge of the acceptable standards for the practice of providing design engineering services in the State of Louisiana which was the task to be performed by the engineering firm(s) referenced herein for ExxonMobil, at the Baton Rouge Refinery where Mr. Ware was severly [sic] injured. Jacobs filed a motion to dismiss Willeford’s claims on the basis that Perkin’s certificate of merit affidavit failed to meet the requirements of section 150.002 of the Texas Civil Practice and Remedies Code. Specifically, Jacobs argued that Perkin’s affidavit failed to (1) satisfy the “knowledge” requirement; (2) set forth the alleged negligence, errors, or omissions for each defendant; and (3) set forth the factual basis for each such claim. The trial court denied Jacobs’s motion, and Jacobs filed this interlocutory appeal. 6 Standard of Review An order granting or denying a motion to dismiss for failure to file a certificate of merit is immediately appealable. TEX. CIV. PRAC. & REM. CODE ANN. § 150.002(f) (West 2011). We review a trial court’s order denying a motion to dismiss for abuse of discretion. CBM Eng’rs, Inc. v. Tellepsen Builders, L.P., 403 S.W.3d 339, 342 (Tex. App.—Houston [1st Dist.] 2013, pet. denied). A trial court abuses its discretion when it acts arbitrarily or unreasonably, without reference to any guiding rules and principles. Id.; see Downer v. Aquamarine Operators, Inc., 701 S.W.2d 238, 241–42 (Tex. 1985). A trial court also abuses its discretion if it fails to analyze or apply the law correctly. Dunham Eng’g, Inc. v. Sherwin-Williams Co., 404 S.W.3d 785, 789 (Tex. App.—Houston [14th Dist.] 2013, no pet.). As the party complaining of an abuse of discretion, Jacobs has the burden of bringing forth a record showing such abuse. See Siemens Energy, Inc. v. Nat’l Union Fire Ins. Co., No. 14-13-00863-CV, 2014 WL 2531577, at *2 (Tex. App.—Houston [14th Dist.] June 3, 2014, pet. denied) (mem. op.). Applicable Law Chapter 150 of the Civil Practice and Remedies Code governs suits filed against certain licensed professionals, including engineers. See TEX. CIV. PRAC. & 7 REM. CODE ANN. § 150.001(1-a) (West Supp. 2017).6 Section 150.002 provides, in relevant part: (a) In any action . . . for damages arising out of the provision of professional services by a licensed or registered professional, the plaintiff shall be required to file with the complaint an affidavit of a third-party . . . licensed professional engineer . . . who: (1) is competent to testify; (2) holds the same professional license or registration as the defendant; and (3) is knowledgeable in the area of practice of the defendant and offers testimony based on the person’s: (A) knowledge; (B) skill; (C) experience; (D) education; (E) training; and (F) practice. (b) The affidavit shall set forth specifically for each theory of recovery for which damages are sought, the negligence, if any, or other action, error, or omission of the licensed or registered professional in providing the professional service, including any error or omission in providing 6 Willeford filed his original petition on November 3, 2015. Because the underlying lawsuit was filed after September 1, 2009, the pertinent version of section 150.002 is the 2009 amended version. See Act of May 29, 2009, 81st Leg., R.S., ch. 789, § 2, 2009 Tex. Gen. Laws 1991, 1992 (codified at TEX. CIV. PRAC. & REM. CODE § 150.002). 8 advice, judgment, opinion, or a similar professional skill claimed to exist and the factual basis for each such claim. The third-party . . . licensed professional engineer . . . shall be licensed or registered in this state and actively engaged in the practice of . . . engineering . . . . ... (e) The plaintiff’s failure to file the affidavit in accordance with this section shall result in dismissal of the complaint against the defendant. This dismissal may be with prejudice. (f) An order granting or denying a motion for dismissal is immediately appealable as an interlocutory order. Id. § 150.002. Analysis Before we consider whether Perkin’s certificate of merit affidavit complies with section 150.002, we address several threshold issues raised by the parties in their briefs. Applicability of Section 150.002 In his brief on appeal, Willeford contends that although he filed a certificate of merit affidavit with his petition, he did so out of an abundance of caution and his filing does not waive his argument that section 150.002 does not apply to this case. In particular, he argues that Jacobs failed to demonstrate to the trial court that it is a “licensed or registered professional,” or that its conduct giving rise to Willeford’s claims against Jacobs was committed in the course of “provi[ding a] professional service.” Id. at §150.002(a). 9 In his response to Jacobs’s motion to dismiss, Willeford argued that Perkin’s certificate of merit complies with section 150.002 because it satisfies the knowledge requirement and adequately sets forth the factual bases for Willeford’s claims.7 Willeford did not argue to the trial court that the statute does not apply to this case.8 Instead, he challenges the applicability of the statute for the first time on appeal. To preserve a complaint for appellate review, the record must demonstrate that the complaining party made the complaint to the trial court by timely request, objection, or motion, stating with sufficient specificity the grounds for the requested ruling. See TEX. R. APP. P. 33.1(a)(1)(A). Because Willeford did not raise this argument in the trial court, he has not preserved this issue for our review. See E.F. Hutton & Co. v. Youngblood, 741 S.W.2d 363, 364 (Tex. 1987) (concluding that argument that Deceptive Trade Practices Act was inapplicable to securities transactions was never presented to trial court and was therefore waived); State v. Wilson, 490 S.W.3d 610, 622–23 (Tex. App.—Houston [1st Dist.] 2016, no pet.) (concluding that where State did not present four of its five public policy arguments 7 In his response, Willeford referred to Jacobs as a licensed engineering firm and stated that “§ 150.002 sets forth a minimal threshold requirement that a plaintiff must satisfy when suing a licensed engineer for an action that arises out of the provision of professional services.” 8 On appeal, Willeford acknowledges that “[t]he record does not indicate that the trial court considered the applicability of CPRC § 150.002 in denying Jacobs’ motion to dismiss.” 10 to trial court, it had not preserved those complaints for appellate review); Robertson Cty. v. Wymola, 17 S.W.3d 334, 344 (Tex. App.—Austin 2000, pet. denied) (concluding county’s claim that it was immune from post-judgment interest not raised at trial court level may not be raised for first time on appeal). Timeliness of Jacobs’s Motion to Dismiss Willeford argues that the trial court did not err in denying Jacobs’s motion to dismiss because the motion was untimely. 9 Jacobs contends that its motion to dismiss was not untimely and that, even if it was, the trial court could not have properly denied Jacobs’s motion to dismiss on this ground.10 Section 150.002 does not impose a deadline to move for dismissal. See TEX. CIV. PRAC. & REM. CODE § 150.002. “When a statute does not contain a deadline, the mere fact that a defendant waits to file a motion to dismiss is insufficient to establish waiver.” Ustanik v. Nortex Found. Designs, Inc., 320 S.W.3d 409, 413 (Tex. App.—Waco 2010, pet. denied) (citing Jernigan v. Langley, 111 S.W.3d 153, 157 (Tex. 2003)). Willeford concedes that section 150.002 does not impose a deadline. Nevertheless, he argues, Jacobs’s filing of its motion approximately 9 In a footnote in his response to Jacobs’s motion, Willeford similarly asserted that “[i]t seems that Jacobs’ motion, at this stage of the litigation, is tardy and defeats the initial gatekeeping function intended by the statute.” 10 The trial court’s order does not state the basis on which it denied Jacobs’s motion to dismiss. 11 six-and-a-half months after Willeford filed his amended petition and after significant discovery had taken place defeats the purpose of the statute and provided the trial court with a sufficient basis upon which to deny Jacobs’s motion. Willeford’s argument is unavailing. In Crosstex Energy Services, L.P. v. Pro Plus, Inc., Crosstex, a natural gas compression station owner hired Pro Plus, a licensed professional engineering firm, as the principal contractor to construct a compression station. See 430 S.W.3d 384, 387 (Tex. 2014). Following a massive fire that caused $10 million in property damage, Crosstex sued Pro Plus for negligence, negligent misrepresentation, breach of implied and express warranty, and breach of contract. See id. After the statute of limitations had run on Crosstex’s negligence claims, and more than seven months after Crosstex had filed its petition, Pro Plus moved to dismiss Crosstex’s claims for failure to attach a certificate of merit to its original petition as required by section 150.002. See id. Crosstex responded that Pro Plus had waived its right to dismissal by, among other things, substantially invoking the judicial process through participating in discovery. See id. at 387, 394. Noting that “[w]aiver is primarily a function of intent,” the Texas Supreme Court stated that “[t]o find waiver through conduct, such intent ‘must be clearly demonstrated by the surrounding facts and circumstances.’” Id. at 393–94 (“We will not find waiver where a person ‘says or does nothing inconsistent with an intent to 12 rely upon such right.’”). The Court then concluded that Pro Plus’s participation in discovery, specifically, the exchange of 11,000 pages of written discovery between the parties, did not demonstrate an intent to waive the right to dismiss under subsection 150.002(e). Id. at 394–95 (“Quite simply, ‘[a]ttempting to learn more about the case in which one is a party does not demonstrate an intent to waive the right to move for dismissal.’”). Other courts have similarly refused to find waiver based upon substantially longer delays than the one here. See, e.g., Found. Assessment, Inc. v. O’Connor, 426 S.W.3d 827, 833–34 (Tex. App.—Fort Worth 2014, pet. denied) (finding engineer defendants’ twenty-two month delay and participation in minimal discovery did not deny them their right to dismissal under section 105.002, noting “we cannot imply waiver based only on delay when the legislature did not provide a deadline for filing a motion to dismiss under section 150.002”); Ustanik, 320 S.W.3d at 413–14 (concluding that although defendant engineers waited nearly two years and five months to file motion to dismiss, participated in discovery, and filed motions for summary judgment, conduct did not evidence intent to waive right to assert dismissal under section 105.002); DLB Architects, P.C. v. Weaver, 305 S.W.3d 407, 411 (Tex. App.—Dallas 2010, pet denied) (holding defendant architects were not precluded from seeking dismissal under section 105.002 even though they had participated in litigation process and waited more than one year after they were sued to file motion to dismiss). We 13 conclude that the trial court could not have properly denied Jacob’s motion to dismiss on this ground. Compliance with Section 150.002(a)(3) Jacobs argues that Perkin’s certificate of merit affidavit fails to comply with section 150.002(a)(3) because it does not demonstrate that Perkin is knowledgeable in Jacobs’s area of practice at issue in this litigation. Specifically, Jacobs argues that nothing in Perkin’s certificate of merit, or elsewhere in the record, demonstrates that Perkin is knowledgeable about software engineering or computer programming. Jacobs relies on the Texas Supreme Court’s recent decision in Levinson Alcoser Associates, L.P. v. El Pistolόn II, Ltd., 513 S.W.3d 487 (Tex. 2017) in support of its argument. In Levinson, El Pistolόn hired Levinson (the “architects”) to design and oversee the construction of a commercial retail project. See id. at 489. Disappointed with the architects’ services, El Pistolόn sued Levinson, alleging breach of contract and negligence in the project’s design and development. Id. El Pistolόn filed a certificate of merit affidavit of Gary Payne, a third-party licensed architect, with its original petition. Id. The architects moved to dismiss El Pistolόn’s suit on the grounds that Payne’s affidavit did not satisfy the knowledge or factual basis requirements of section 150.002. See id. 489–90. The trial court denied the motion to dismiss and the 14 architects appealed. The court of appeals affirmed the portion of the trial court’s order denying dismissal of El Pistolόn’s negligence claim, concluding that Payne’s affidavit satisfied both the statute’s knowledge and factual basis requirements as to that claim.11 See id. at 490. The architects appealed the decision, arguing that Payne’s affidavit was insufficient because Payne was not properly qualified under the statute to give a professional opinion. See id. at 491. The Texas Supreme Court noted that, under section 150.002, a third-party professional is qualified to render a certificate of merit if he (1) holds the same professional license or registration as the defendant; (2) is licensed or registered in the state; (3) is actively engaged in the practice; and (4) is knowledgeable in the defendant’s area of practice. Id. at 492. The Court concluded that Payne’s affidavit satisfied the first three statutory factors under section 150.002—it showed that he was a professional architect, he was registered to practice in Texas, and he was actively engaged in the practice of architecture—but that the affidavit did not provide any information about Payne’s knowledge of Levinson’s area of practice. See id. 11 The court reversed the trial court’s order as to the contract claim, concluding that Payne’s affidavit was deficient as to that claim, and it remanded for the trial court to determine whether the contract claim should be dismissed with or without prejudice. Levinson Alcoser Assocs., L.P. v. El Pistolόn II, Ltd., 513 S.W.3d 487, 490 (Tex. 2017). 15 The Court explained that “the statute’s knowledge requirement is not synonymous with the expert’s licensure or active engagement in the practice; it requires some additional explication or evidence reflecting the expert’s familiarity or experience with the practice area at issue in the litigation.” Id. at 494. The Court agreed that such knowledge may be inferred from sources in the record other than the expert’s affidavit, and that the certificate of merit was not deficient merely because it failed to show on its face that Payne possessed knowledge of the architects’ area of practice. See id. at 493–94. It noted, however, that the court of appeals’ opinion did not identify a source for such an inference other than Payne’s affidavit, and that El Pistolόn did not point to “anything in the record from which to infer Payne’s knowledge or background in the design of shopping centers or other similar commercial construction.” Id. at 493. “Because nothing exists in Payne’s affidavit from which to draw an inference that Payne possessed knowledge of the defendants’ area of practice beyond the generalized knowledge associated with holding the same license, we conclude that Payne has not shown himself qualified to render the certificate of merit.” Id. at 494. Jacobs contends that, like El Pistolόn, Willeford impermissibly attempts to satisfy section 150.002(a)(3)’s knowledge requirement by relying on Perkin’s averments in his certificate of merit that he is a registered professional engineer in the State of Texas and has been actively engaged in providing engineering services 16 since 1995. See id. (explaining that “court of appeals’ interpretation conflates the knowledge requirement with the requirement that the third-party expert hold the same professional license or registration as the defendant”). Jacobs argues that, under Levinson, Perkin’s general knowledge of Jacobs’s broad practice area, i.e., engineering, is insufficient to qualify him to render a certificate of merit in this case. Willeford argues that Levinson is distinguishable because the expert in Levinson provided no information about his experience, training, practice, qualifications, or knowledge, other than the fact that he was a licensed architect. In contrast, he argues, Perkin states in his certificate of merit that “he has been engaged as an engineer in the areas of detailed safety analysis of highly complex process units, including the areas of equipment design, manufacture, fabrication, assembly, construction, testing, operation, maintenance and retrofitting.” Willeford also points out that Perkin “describes how he has ‘almost 50 years of experience in rotary drilling operations,’ his clientele includes energy and related industries and the oil and gas industry,” and that Perkin states “based on my education and professional experience, I have personal knowledge of the acceptable standards for the practice of providing design engineering services in the State of Louisiana which was the task to be performed by the engineering firm(s) referenced herein for ExxonMobil, at the Baton Rouge Refinery, where Mr. Ware was severly [sic] injured.” Willeford 17 argues that Dunham Engineering, rather than Levinson, is more on point with this case. In Dunham Engineering, the City of Lake Jackson hired Dunham Engineering, Inc. (“DEI”) to design and produce engineering plans and specifications, and a draft set of contract documents for the repainting and rehabilitation of a 500,000 gallon water tower. See id. at 788. The City also hired DEI to advertise for contractor bids on, and assist the City in reviewing the bids and selecting the winning bid for, the project. Id. After DEI turned down Sherwin-Williams’s request to substitute its paint products for the paint products DEI had specified because DEI did not consider Sherwin-Williams’s products to be “equal,” Sherwin-Williams sued DEI, asserting claims of intentional interference with prospective business relationships, business disparagement, and product disparagement. See id. To its original petition, Sherwin-Williams attached a certificate of merit affidavit of James O’Connor, a licensed professional civil engineer and engineering professor. Id. DEI moved to dismiss Sherwin-Williams’s suit, arguing that its certificate of merit affidavit failed to meet the requirements of section 150.002. Id. at 789. The trial court denied DEI’s motion, and DEI appealed. Id. The court of appeals rejected as an overly narrow construction DEI’s argument that O’Connor’s certificate of merit affidavit was insufficient because it 18 did not demonstrate that he was knowledgeable in “professional engineering services related to water storage tanks and corrosion control.” See id. at 794. “[W]hat DEI proposes is that section 150.002(a)(3) requires that we evaluate certificates of merit on the basis of engineering specialties. However, the plain language of . . . section 150.002(a)(3) . . . specifically states only that the engineer opining in the certificate of merit be ‘knowledgeable in the area of practice of the defendant.’” Id. The court noted that O’Connor’s certificate indicated that he held a Ph.D. in civil engineering, was licensed by the State of Texas as a professional civil engineer, served as a professor in project management within the civil engineering department at the University of Texas, and that, through his practice, research, and teaching, he was familiar with the legal requirements and industry customs regarding competitive bidding on public works projects. Id. at 795. Noting that DEI was involved in the preparation and direction of plans and specifications for a Texas public works project, the court concluded that the trial court had not abused its discretion in determining that O’Connor was knowledgeable in DEI’s area of practice. See id. Jacobs argues that Dunham Engineering does not support Willeford’s position because, unlike the defendant there, Jacobs does not contend that Perkin lacks knowledge of an engineering “specialty.” For example, Jacobs contends, it does not assert that Perkin lacks knowledge of computer programming and software engineering for control of industrial machinery in oil refineries, as opposed to 19 industrial machinery in other applications. Rather, it argues that “Perkin lacks knowledge of computer programming and software engineering for control of industrial machinery, period.” In his amended petition, Willeford alleges that Jacobs “provided programming and HMI configuration” for the four new upgraded PLCs in the Far East Coker Unit, and that it completed the detail design for the project. He further alleges that Jacobs “engaged in defective work related to designing, wiring, installing, constructing, and programming the coker unit’s PLCs, HMI’s load cells, and failed to ensure the functionality of its work and the unit as a whole following its work.” In support of his allegations, Willeford relies on Mosenteen’s deposition testimony and the ExxonMobil procurement document identifying Jacobs’s scope of work on the project. Mosenteen testified that Jacobs was responsible for the programming of the PLCs and HMI, and that “detail design” refers to the design and development of the logic underlying the software program Jacobs wrote for the upgraded PLCs. Similarly, the procurement document identifying Jacobs’s scope of work on the project states that Jacobs was to “provide programming and HMI configuration for the new upgraded PLCs for the Far East Coker Cutting Consoles,” and that site acceptance and start up services and intools wiring would be provided. 20 There is nothing in Perkin’s certificate of merit, or elsewhere in the record, showing that Perkin is knowledgeable about computer programming or software engineering for control of industrial machinery, Jacobs’s practice area at issue. Notably, Perkin states, “I am informed that the PLC and/or HMI providing all/or some of this information to a DCSU [Delayed Coker System Unit] Operator was not fully functioning.” There is no mention in the certificate of designing, wiring, installing, constructing or programming PLCs, HMIs, or load cells, nor is there any mention of acceptance testing of PLCs or HMIs.12 Neither Perkin’s background nor his active practice reflects knowledge, experience, education, or training in computer programming, software engineering, PLC programming, HMI configuration, or site acceptance testing of PLCS and HMIs. Instead, Perkin’s certificate shows that he is a mechanical engineer with experience in, and familiarity with, mechanical systems, in particular, equipment design, manufacture, fabrication, assembly, construction, testing, operation, maintenance, and retrofitting.13 12 Perkin does not identify the PLC software program written by Jacobs, ExxonMobil’s specifications for that program, or the site acceptance test procedures written by Jacobs for the upgraded PLCs and HMIs as being among the materials he reviewed in rendering his certificate of merit. See M-E Eng’rs, Inc. v. City of Temple, 365 S.W.3d 497, 504 (Tex. App.—Houston [1st Dist.] 2012, pet. denied) (noting that certificate of merit reflected that, in forming his opinions, expert had read project specifications and drawings, assessed whether HVAC system complied with those documents, and determined, based on his training and experience, whether HVAC system, as actually installed, functioned properly as part of project). 13 Perkin summarizes his minimal expectations for the DSCU drilling operations, based on his “almost fifty years of experience in rotary drilling operations,” in 21 Willeford argues that Jacobs mischaracterizes his claims as claims about coding or software design. He asserts that his claims center on the failure to implement certain safety features, mechanical design flaws, and the failure to conduct adequate site acceptance testing and other testing of the mechanical components of the PLC and HMI. However, the record shows that these duties were not within Jacobs’s scope of work on the project. To its motion to dismiss, Jacobs attached the affidavit of Franz Rosenthal, an instrument engineer with ExxonMobil Chemical Corporation, who was responsible for the Far East Coker Unit upgrade in 2013. Rosenthal averred, in pertinent part: 2. While at ExxonMobil, we tested any new equipment installed at the Far East Coker unit for functionality to ensure it met ExxonMobil’s design, specifications, and performance criteria. Jacobs was responsible for developing the site acceptance test procedures. As part of the installation and verification process, ExxonMobil would perform a site acceptance test (SAT). 3. ExxonMobil hired Jacobs to provide input/output list and the programming for the programmable logic controllers (PLCs) and the human machine interface (HMI) for the 2013 Far East Coker unit cutting consoles upgrade (FECU). [] PLCs are configurable mini-computers that usually have electrical signals wired into them and are used to control processes. The PLC runs software as a personal computer. Jacobs developed and installed the eleven bullet points in his certificate of merit. These points, however, address mechanical design and procedural issues, none of which are related to the activities within Jacobs’s scope of work. See id. at 503 (concluding that trial court could have considered, among other facts, expert’s descriptions and analysis of eleven sets of identified problems in building’s HVAC system that he attributed to defendant engineer). 22 program used in the PLCs for FECU, using a language specific for that purpose. 4. Site acceptance services means to provide support services to ExxonMobil during site acceptance testing that was performed by ExxonMobil. Jacobs was not specifically contracted to perform the site acceptance test on the 2013 FECU. Jacobs was responsible for ensuring the PLCs operated per ExxonMobil’s design and performance criteria. The PLCs complied with all of ExxonMobil’s design and performance standards. ExxonMobil personnel performed the SAT and Jacobs was there primarily in an advisory capacity if issues arose. The SAT was successfully completed to ExxonMobil’s satisfaction. Thus, while its duties included providing site acceptance services, including developing the procedures for site acceptance testing, Jacobs did not conduct site acceptance testing or testing of other equipment at the FECU. ExxonMobil did. Willeford also asserts that Jacobs’s claim that a software engineer is necessary to render a certificate of merit in this case fails as a matter of law. It is true that a third-party expert need not practice in the same practice area at issue to be knowledgeable to render an opinion under the statute. See Levinson, 513 S.W.3d at 492–93; Gaertner v. Langhoff, 509 S.W.3d 392, 397 (Tex. App.—Houston [1st Dist.] 2014, no pet.). However, Jacobs does not make this argument. Rather, it contends that Perkin does not satisfy the “knowledge” requirement because there is nothing in the record indicating that Perkin is knowledgeable in Jacobs’s specific area of practice. Compare Levinson, 513 S.W.3d at 493 (concluding that expert had not shown himself qualified to render certificate of merit where there was nothing 23 in record from which court could infer expert’s knowledge or background in defendant architects’ practice area, i.e. design of shopping centers or other similar commercial construction), with Melden & Hunt, Inc. v. East Rio Hondo Water Supply Co., 520 S.W.3d 887, 891 (Tex. 2017) (agreeing with court of appeals that expert’s averments of many years of experience “in master planning, detailed design and construction management,” and about his “education and experience in the design and analysis of water treatment plants, including clarifiers, pumps, filters, piping, controls, and chemical fees systems” were factual statements supporting conclusion that expert was knowledgeable in defendant engineer’s practice area), and Dunham Eng’g, Inc., 404 S.W.3d at 795 (concluding section 150.002(a)(3) was satisfied where expert’s affidavit indicated that through practice, research, and teaching, he was familiar with legal requirements and industry customs regarding competitive bidding on public works projects like those at issue), and M–E Eng’rs, Inc. v. City of Temple, 365 S.W.3d 497, 501, 504 (concluding district court did not abuse its discretion in determining that expert was knowledgeable in defendant engineer’s practice area where expert averred in his certificate that he practiced in same design of heating, ventilating, air conditioning systems, and plumbing systems as defendant, and other facts tended to confirm expert’s knowledge such as his descriptions and analysis of eleven sets of identified problems in building’s HVAC system). 24 Willeford’s argument is essentially that because the system failed, every component of the system failed. That may or may not be true, but Jacobs has broken its component of the system out of the system and challenged Willeford to show in what particular way it failed. The first step Willeford must take is to satisfy the requirements of section 150.002 with a certificate of merit which demonstrates that the expert called upon to criticize the computer programming and installation is qualified to do so. There is nothing in Perkin’s curriculum vitae or his affidavit showing that he possesses knowledge regarding the role that computer programming played in the system’s alleged failure. While Perkins is, based on his certificate of merit, qualified to review and criticize the coordination, design, and functioning of complex refinery systems, there is nothing in the record which indicates his expertise in the area of computer programing, design, or installation. The certificate of merit does not meet the standards of section 150.002 with regard to Jacobs. Because nothing exists in Perkin’s certificate of merit affidavit, or elsewhere in the record, indicating that Perkin possesses knowledge of Jacobs’s practice area, Perkin has not shown himself qualified to render the certificate of merit. The trial court erred in denying Jacobs’s motion to dismiss. See TEX. CIV. PRAC. & REM. 25 CODE ANN. § 150.002(e) (requiring dismissal when plaintiff fails to file compliant affidavit). Accordingly, we sustain Jacobs’s issue.14 Conclusion We reverse the trial court’s order denying Jacobs’s motion to dismiss, and we remand the cause to the trial court to determine whether the dismissal of Willeford’s claims shall be with or without prejudice. See TEX. CIV. PRAC. & REM. CODE ANN. § 150.002(e) (providing that dismissal based on plaintiff’s failure to file certificate of merit in accordance with statute “may be with prejudice”). Russell Lloyd Justice Panel consists of Justices Bland, Lloyd, and Caughey. 14 In light of our disposition, we need not reach Jacobs’s issues regarding whether Perkin’s certificate of merit specifically addresses Jacobs and its conduct, as required by section 150.002(b), or whether the trial court was permitted to consider the affidavit of Jacob’s engineering expert, Richard Hooper, attached to its motion to dismiss. 26	{ "pile_set_name": "FreeLaw" }
105 F.3d 664 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.Sharon E. BRITT, Plaintiff-Appellant,v.William PERRY, Secretary of the Department of Defense,Defendant-Appellee. No. 95-56363. United States Court of Appeals, Ninth Circuit. Argued and Submitted Dec. 11, 1996.Decided Dec. 30, 1996. Before: PREGERSON, D.W. NELSON, and O'SCANNLAIN, Circuit Judges. 1 ORDER* 2 The district court's grant of summary judgment to the defendant is affirmed. * This disposition is not appropriate for publication and may not be cited to or by the courts of this circuit except as provided by 9th Cir.R. 36-3	{ "pile_set_name": "FreeLaw" }
968 F.2d 1227 NOTICE: 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.ATLAS TELECOM, INC., Appellant,v.ALFAX PAPER & ENGINEERING COMPANY, INC., Appellee. No. 92-1083. United States Court of Appeals, Federal Circuit. May 26, 1992. Before ARCHER, MAYER and MICHEL, Circuit Judges. PER CURIAM. 1 Atlas Telecom, Inc. appeals the decision of the U.S. Patent and Trademark Office's Trademark Trial and Appeal Board sustaining Alfax Paper & Engineering Company, Inc.'s opposition to the registration of its service mark, AFAX, for electronic transmission of images, text and other data, thereby effectively denying registration of its mark. Alfax Paper & Engineering Company, Inc. v. Atlas Telecom, Inc., Opposition No. 79,639 (Sept. 24, 1991). Because the Board should reconsider its decision in light of Electronic Design & Sales, Inc. v. Electronic Data Sys. Corp., 954 F.2d 713, 21 USPQ2d 1388 (Fed.Cir.1992), we vacate and remand.	{ "pile_set_name": "FreeLaw" }
C-Track E-Filing The Supreme Court of Nevada Appellate Case Management System C-Track, the browser based CMS for Appellate Courts Case Search Participant Search	{ "pile_set_name": "FreeLaw" }
535 U.S. 1054 PROTESTANT EPISCOPAL CHURCH IN THE DIOCESE OF MISSISSIPPI ET AL.v.MABUS. No. 01-1263. Supreme Court of the United States. May 13, 2002. 1 Cir. Ct. Hinds County, Miss. Certiorari denied.	{ "pile_set_name": "FreeLaw" }
113 N.J. Super. 152 (1971) 273 A.2d 361 STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT, v. WILLIAM B. EBRON, DEFENDANT-APPELLANT. Superior Court of New Jersey, Appellate Division. Argued January 12, 1971. Decided January 21, 1971. 153 Before Judges KILKENNY, HALPERN and LANE. Mr. George R. Sommer argued the cause for appellant. Mr. R. Benjamin Cohen, Assistant Prosecutor, argued the cause for respondent (Mr. Joseph P. Lordi, Essex County Prosecutor, attorney; Mr. David S. Baime, Assistant Prosecutor, of counsel; Mr. Anthony J. Fusco, Jr., Legal Assistant on the brief). PER CURIAM. Defendant appeals from a judgment of conviction of a four count indictment under N.J.S.A. 24:18-4. 154 He was sentenced to the New Jersey Reformatory for Males and fined $100. On January 4, 1968 officers from the Newark Narcotic Squad executed a search warrant at premises located at 86 West Kinney Street. In the basement apartment, in which the defendant was in bed, they found a quantity of heroin, cocaine, marijuana and methadone. They also found hypodermic needles with syringes and some Tuinal capsules. Before the trial the defendant moved to suppress the evidence seized as a result of the execution of the search warrant, arguing, among other things, that probable cause had not been shown for the issuance of the search warrant. The motion was denied. The affidavit upon which the search warrant was issued was made by Arthur Gockeler, a member of the Narcotic Squad. He stated: I Arthur Gockeler, have just and reasonable cause to suspect and believe that the following goods, to wit, narcotic drugs, and paraphernalia used in connection with the sale or possession of narcotics are concealed in the premises known and designated as 86 W. Kinney St., whole house, City of Newark, and I have further just and reasonable cause to suspect and believe that the aforesaid premises is being used in connection with a violation of law commonly known and stated as the sale or possession of narcotics, contrary to the statute in such case made and provided. And the deponent states that the statement above recited is based upon the following facts. 1. I have received information from reliable sources and also from an informer who has proved reliable in the past that William and Sandy Ebron are selling narcotics from their mother, Emma Dee Lynn's house at 86 W. Kinney St. Mrs. Lynn is currently appealing a [sic] 8-10 year jail sentence for possession of narcotics. 2. The undersigned in company with Dets. Wainen, Jackson, Decker, Petrillo and Pariso, surveilled the premises at 86 W. Kinney St., on the following dates: Jan. 2, 1968 from 1:00 P.M. to 3:30 P.M., Jan. 3, 1968 from 12:00 P.M. to 2:30 P.M. and on Jan. 4, 1968 from 11:00 A.M. to 2:00 P.M. During these times known narcotic offenders observed entering and leaving these premises were: Ruby Gunther, NR # 388, Yvonne Raddals, NR # 1690, Willa Mae Dungee, NR # 369, Ella Langry, NR # 1368, Charles Dunn NR # 581, Martha Dennis, NR # 1567, and William Levinson NR # 50. 155 On the basis of the facts disclosed above deponent states that he has ample reason to believe that the premises known and designated as 86 W. Kinney St., whole house, is being used in violation of law commonly known and stated as the sale or possession of narcotic drugs, contrary to the statute in such case made and provided. We realize that the County Court in considering the motion to suppress was required to pay substantial deference to the finding of probable cause made by the magistrate. State v. Kasabucki, 52 N.J. 110, 117 (1968). We approach the consideration of whether probable cause existed for the issuance of the search warrant with full deference to the philosophy expressed in State v. Davis, 50 N.J. 16 (1967), cert. den. 389 U.S. 1054, 88 S.Ct. 805, 19 L.Ed.2d 852 (1968). Our scrutiny, however, must be directed to whether a proper showing of probable cause was made to the magistrate to justify the issuance of the search warrant under the Fourth Amendment of the United States Constitution. Mapp v. Ohio, 367 U.S. 643, 81 S.Ct. 1684, 6 L.Ed.2d 1081 (1961); Robb v. Connolly, 111 U.S. 624, 637, 4 S.Ct. 544, 551, 28 L.Ed. 542 (1883). We cannot consider the result of the search; rather, our inquiry is limited only to the factors presented to the magistrate. Aguilar v. Texas, 378 U.S. 108, 84 S.Ct. 1509, 12 L.Ed.2d 723 (1964). The conclusion in the affidavit submitted to the magistrate was based upon but two points: (1) information received "from reliable sources and also from an informer who has proved reliable in the past," and (2) limited surveillance of the premises during which times "known narcotic offenders [were] observed entering and leaving these premises." The affidavit upon which the search warrant was based was fatally deficient. The mere statement that information has been received from a reliable informant who has proved reliable in the past is insufficient. Even assuming corroboration of reliability, the affidavit must in addition show "a sufficient statement of the underlying circumstances from which the informer concluded" that narcotics were concealed on the premises. Spinelli v. United States, 393 U.S. 410, 156 416, 89 S.Ct. 584, 589, 21 L.Ed.2d 637 (1969). Without such a statement the magistrate had no way of telling whether the information was not mere rumor. In Spinelli the court stated: We are not told how the FBI's source received his information it is not alleged that the informant personally observed Spinelli at work or that he had ever placed a bet with him. Moreover, if the informant came by the information indirectly, he did not explain why his sources were reliable. Cf. Jaben v. United States, 381 U.S. 214, 85 S.Ct. 1365, 14 L.Ed.2d 345 (1965). In the absence of a statement detailing the manner in which the information was gathered, it is especially important that the tip describe the accused's criminal activity in sufficient detail that the magistrate may know that he is relying on something more substantial than a casual rumor circulating in the underworld or an accusation based merely on an individual's general reputation. [393 U.S. at 416, 89 S.Ct. at 589.] Nor is the affiant's statement that he had seen known narcotic offenders enter and leave the premises, consisting of three separate apartments, a sufficient showing of probable cause. The surveillance might be useful to bolster the reliability of the informer, but it cannot supply the omission of a showing of the underlying circumstances needed to support the tip. Spinelli, supra, at 417, Sibron v. New York, 392 U.S. 40, 62, 88 S.Ct. 1889, 20 L.Ed.2d 917 (1968). The affidavit in this case fails to meet the standards established by the United States Supreme Court in Spinelli. The other points raised on appeal by defendant, that the search warrant was improperly executed and that the indictment should have been dismissed on the principles of double jeopardy, res judicata or collateral estoppel, are without merit. We need not consider whether the trial judge erred in denying the motion for a judgment of acquittal and the motion for a new trial. The judgment of conviction and the order denying the motion to suppress are reversed, and the matter is remanded to the Essex County Court for appropriate disposition therein.	{ "pile_set_name": "FreeLaw" }
Cite as 2016 Ark. App. 224 ARKANSAS COURT OF APPEALS DIVISION II No. CV-15-881 Opinion Delivered April 27, 2016 JOHN CROSS AND GLENDA APPEAL FROM THE MILLER CROSS COUNTY CIRCUIT COURT APPELLANTS [NO. CV-14-160-3] V. HONORABLE TED C. CAPEHEART, SPECIAL JUDGE BRENDA CROSS AND JAMES GARY CROSS APPELLEES AFFIRMED IN PART, REVERSED IN PART ON DIRECT APPEAL; REMANDED WITH INSTRUCTIONS; AND AFFIRMED ON CROSS-APPEAL RAYMOND R. ABRAMSON, Judge This is a boundary dispute between two brothers and their wives. The Miller County Circuit Court found that there was a boundary by acquiescence and that res judicata barred the claims of appellants Glenda and John Cross, who were seeking to quiet title. Appellants raise eight points on appeal. Appellees James Gary Cross (Gary) and Brenda Cross cross- appeal and argue that the circuit court erred in refusing to award them attorney’s fees on the basis that appellants’ claim lacked a justiciable issue. We affirm in part and reverse in part on direct appeal. We affirm on cross-appeal. We also remand the case so that the circuit 1 Cite as 2016 Ark. App. 224 court can amend the decree to include a metes-and-bounds description showing the location of the fence. This is the latest in a series of lawsuits between John Cross and Gary Cross over the boundaries of various properties located in Miller County. The parties own several thousand acres between them in Miller County. This case involves the tract that appellants purchased from Virginia and William Cox in February 2014. The legal description of the Cox property calls for a rectangular half-of-a-half-of-a-quarter-section tract. It is bounded on the north by another tract owned by appellants and on the east and south by appellees. The parties each own forty-acre tracts that are adjacent to the west side of the Cox property. Of these two forty-acre tracts, appellees own the southerly forty-acre tract that is separated from their tract immediately to the south of the Cox property by a tract owned by appellants that meets at the southwest corner of the Cox property. The parties’ westerly forty-acre tracts are separated by a lake and were the subject of litigation in 1999 and 2002. In 2005, the parties stipulated that the north-south line between the parties was the line on a survey prepared by Kenneth Lynch. This line divided the lake. The eastern line of the Cox property and appellants’ property to the north of the Cox property was the subject of a suit brought by appellees against the Coxes and appellants in 2008. In its decree filed in 2011, the court found that the parties and their predecessors in title had recognized a fence to the east of the Coxes’ survey line to be the boundary between the lands in question for more than forty years. This fence meanders inside the survey line at the northeast corner of the Cox property. Title to the property lying east of the fence was quieted in appellees. This resulted in a loss of a little more than two acres 2 Cite as 2016 Ark. App. 224 from the description of the Cox property. There is another fence on the western side of the Cox property, estimated to be approximately sixty feet off the section line called for in the deed from the Coxes to the appellants. The present litigation started on July 7, 2014, when appellants filed their petition seeking to quiet title to the Cox property. Appellants asserted that appellees were trespassing over the southwest corner of the Cox property between the fence and the section line in order to access their property that adjoined the western boundary of the Cox property. Appellants also contended that appellees were claiming the western fence as an improper boundary between the parties. They filed an amended petition to add the alternative theory of adverse possession. Appellees timely filed answers to both complaints. In both answers, appellees asserted the affirmative defenses of collateral estoppel and/or res judicata. The affirmative defenses were based on the 2008 litigation over the boundary line between the parties. The case proceeded to a bench trial. The court took the matter under advisement and requested proposed findings of fact and conclusions of law. After the trial but before the court announced its decision, appellees filed a motion seeking attorney’s fees pursuant to Ark. Code Ann. § 16-22-309 (Repl. 1999). They argued that appellants lacked any justiciable issue because the issue had previously been resolved in appellees’ favor in the prior litigation. Appellants responded, arguing that the claim for fees had been waived because it was not addressed in appellees’ case-in-chief. The circuit court entered its order on July 15, 2015, finding that appellants and their Cox predecessors failed to meet their burden to prove their quiet-title claim. The court 3 Cite as 2016 Ark. App. 224 found no evidence that the Coxes or the appellants had occupied the area between the fence and the line called for in appellants’ deed from the Coxes. The court further found that no party disputed that there was a previous lawsuit concerning this same fence line, that the same fence completely surrounded the Cox property, that the court ruled in favor of appellees in that earlier case, and, therefore, res judicata prevented appellants from relitigating the same claims, even if the earlier litigation did not involve the entire fence line. The court also found that appellees had made it clear in their pleadings and correspondence to opposing counsel that they contended that the fence was the true boundary of the Cox property by arguing that the issue had already been litigated and resolved in a previous lawsuit. The court noted that appellees made a motion to have the pleadings conform to the evidence. As such, the court found that the evidence was undisputed that the fence between the appellant/Cox property and appellees’ property to the west was divided by a fence that had been present for over forty years and which had been recognized as the true boundary by acquiescence between those tracts of property. The court rejected appellants’ alternative argument of adverse possession as also barred by res judicata. The court granted appellees costs of $2,500. Appellants timely filed a motion for new trial and motion for additional findings. The motion argued that the court improperly relied on the affirmative defense of boundary by acquiescence that had not been pled and that the order was against the preponderance of the evidence. The motion also challenged the award of costs as not supported by the evidence. 4 Cite as 2016 Ark. App. 224 On July 22, 2015, the court entered its judgment dismissing the case with prejudice. It incorporated the earlier July 15, 2015 order. It also denied the parties’ posttrial motions. This appeal and cross-appeal timely followed. In civil bench trials, the standard of review on appeal is whether the circuit court’s findings were clearly erroneous or clearly against a preponderance of the evidence. Tadlock v. Moncus, 2013 Ark. App. 363, 428 S.W.3d 526. A finding is clearly erroneous when, although there is evidence to support it, the reviewing court, on the entire evidence, is left with a firm conviction that a mistake has been committed. Id. Although appellants argue eight different points, they can be broken down into three distinct points: whether the circuit court was correct in finding that the old fence was a boundary by acquiescence; whether res judicata bars appellants’ claims; and whether the amount of costs awarded was arbitrary and not supported by the record. We affirm the circuit court’s finding that the fence was the boundary by acquiescence. This holding renders it unnecessary to discuss the circuit court’s reliance on res judicata. Appellants argue multiple points concerning the circuit court’s ruling that the fence was the boundary between the parties by acquiescence. Appellants not only contend that the court erred in allowing this affirmative defense to be raised in the first place via appellees’ motion to amend the pleadings to conform to the proof, but also erred in finding that there was a boundary by acquiescence. We take appellants’ arguments in order. We will not reverse a circuit court’s decision regarding the amendment of pleadings to conform to the evidence in the absence of a manifest abuse of discretion. Ison Props., LLC 5 Cite as 2016 Ark. App. 224 v. Wood, 85 Ark. App. 443, 156 S.W.3d 742 (2004). Arkansas Rule of Civil Procedure 15(b) governs the amendment of pleadings to conform to the evidence: When issues not raised by the pleadings are tried by express or implied consent of the parties, they shall be treated in all respects as if they had been raised in the pleadings. Such amendment of the pleadings as may be necessary to cause them to conform to the evidence and to raise these issues may be made upon motion of any party at any time, even after judgment; but failure so to amend does not affect the result of the trial of these issues. If evidence is objected to at the trial on the ground that it is not within the issues made by the pleadings, the court may allow the pleadings to be amended in its discretion. The court may grant a continuance to enable the objecting party to meet such evidence. Beginning with their opening statement, appellants objected whenever there was testimony about the fence along the boundary between the parties. However, even when an objection is made that the issue was not included in the pleadings, the circuit court may allow an amendment at its discretion. Hope v. Hope, 333 Ark. 324, 969 S.W.2d 633 (1998). Appellants note that the circuit court did not specifically grant appellees’ motion to amend the pleadings to conform to the evidence. Although the court did not specifically say that it was granting the motion, it is clear that it did so. In King v. State, Office of Child Support Enforcement, 58 Ark. App. 298, 952 S.W.2d 180 (1997), a complaint was treated as amended, despite the lack of a ruling on a motion to amend to conform to the proof, where discussion between the trial court and counsel and the result of the case indicated that the amendment had occurred. See also Jones v. Ray, 54 Ark. App. 336, 925 S.W.2d 805 (1996); In re Estate of Tucker, 46 Ark. App. 322, 881 S.W.2d 226 (1994). That is what happened in the present case—the circuit court granted the motion without expressly stating so. The issue then becomes whether appellants were prejudiced by the amendment. 6 Cite as 2016 Ark. App. 224 Contrary to appellants’ argument, our courts have established a test to determine whether an amendment is prejudicial: “whether the party opposing the motion will have a fair opportunity to defend after the amendment.” Travis v. Houk, 307 Ark. 84, 86, 817 S.W.2d 207, 208 (1991). Accord, Turner v. Stewart, 330 Ark. 134, 952 S.W.2d 156 (1997); Thomas v. Pierce, 87 Ark. App. 26, 184 S.W.3d 489 (2004). Appellants argue that they were prejudiced in three ways: (1) that appellees did not make the motion to amend the pleadings to conform to the proof until after they rested; (2) that they were prejudiced when appellees renewed the motion at the close of all of the evidence because they did not introduce any evidence in opposition to the objected-to evidence to support the claim of boundary by acquiescence; and (3) because they did not subpoena witnesses to meet the claim. We do not believe that appellants were prejudiced. First, by its plain language, the rule allows amendments to conform to the evidence to be made at any time, including after judgment. Therefore, appellants have not shown any prejudice by the timing of appellees’ motion. Next, the parties and the Coxes owned the lands adjacent to the fence line. Appellants do not suggest what other witnesses they could call to shed light on whether there had been recognition of the fence as a boundary. They should have been on notice that the issue of boundary by acquiescence could arise during the litigation because it was the basis of the 2011 decree, and appellees were relying on that decree as the basis for their res judicata defense. This brings us to the merits of the circuit court’s finding that the fence was the boundary by acquiescence. Specifically, appellants argue that there was no proof of an agreement to recognize the fence as the proper boundary. However, proof of an explicit 7 Cite as 2016 Ark. App. 224 agreement is unnecessary because a boundary line by acquiescence is inferred from the landowners’ conduct over many years so as to imply the existence of an agreement about the location of the boundary line. Warren v. Collier, 262 Ark. 656, 559 S.W.2d 927 (1978); Ward v. Adams, 66 Ark. App. 208, 989 S.W.2d 550 (1999); Summers v. Dietsch, 41 Ark. App. 52, 849 S.W.2d 3 (1993). Here, there was ample testimony that the fence was recognized as the boundary between the two tracts. William Cox, appellants’ predecessor in title, testified that the fence was in place when he purchased the property. He also testified that a timber company used to own the adjacent property and would cut timber up to the fence. Cox also testified that appellants were aware of the location of the fence. Gary Cross testified that the fence has been located in the same place since his grandfather owned the property in 1917. He also said that the fence has been recognized as the boundary by all the neighbors. Charles Cross, John and Gary’s older brother, also testified that he had always considered the fence to be the boundary of the Cox property. Based on this testimony, we cannot say that the circuit court clearly erred in finding a boundary by acquiescence. However, the circuit court’s order lacks a specific description of the property. It has long been held that a circuit court’s decree must describe the boundary line between disputing landowners with sufficient specificity that it may be identified solely by reference to the decree. Petrus v. Nature Conservancy, 330 Ark. 722, 957 S.W.2d 688 (1997). When nothing remains to be done, we have decided the merits and remanded for the inclusion of a more specific legal description in the order. See, e.g., Rice v. Whiting, 248 Ark. 592, 452 S.W.2d 842 (1970); Boyster v. Shoemake, 101 Ark. App. 148, 272 S.W.3d 139 (2008); Adams v. Atkins, 97 Ark. App. 328, 249 S.W.3d 166 (2007); Jennings v. Burford, 60 8 Cite as 2016 Ark. App. 224 Ark. App. 27, 958 S.W.2d 12 (1997). The orders in these cases all referenced existing surveys. Here, the circuit court’s order provides that the “fence line depicted on the survey of the Cox property is hereby established as the boundary.” In Jennings, we held that a similar description (“the meandering fence ‘reflected by the Askew survey’”) was not reversible error, but was a mere omission or oversight that could be corrected pursuant to then Rule 60(a) of the Arkansas Rules of Civil Procedure. Accordingly, we granted leave to the lower court to amend the decree by adding a more specific description of the boundary line between the parties’ land. We did the same in Boyster. As we did in Jennings and Boyster, we again grant leave to the circuit court to amend the decree by adding a more specific description of the Cox property as bounded by the fence. Finally, appellants argue that the $2,500 in costs awarded by the circuit court is arbitrary and against the preponderance of the evidence. Appellants further argue that the term “costs” has a limited and specific meaning under Ark. R. Civ. P. 54(d). We agree. Contrary to appellees’ argument, appellants properly preserved this issue below by means of their postjudgment motion. See Zhan v. Sherman, 323 Ark. 172, 913 S.W.2d 776 (1996). Rule 54(d) gives the circuit court discretion in awarding authorized costs. Id. The prevailing party’s request for costs must be substantiated with proper documentation. See Brown v. Lee, 2012 Ark. 417, 424 S.W.3d 817; Truck Ctr. of Tulsa, Inc. v. Autrey, 310 Ark. 260, 836 S.W.2d 359 (1992). Here, appellees never filed a motion or affidavit detailing their costs. Because there is no evidence to support the award of costs, we reverse the award of costs. 9 Cite as 2016 Ark. App. 224 On cross-appeal, appellees argue that the circuit court erred in failing to award them their attorney’s fees. We disagree. After trial but before the court entered its order, appellees filed a motion seeking attorney’s fees pursuant to Ark. Code Ann. § 16-22-309 (Repl. 1999). The court denied the parties’ posttrial motions. Section 16-22-309(a)(1) provides that an attorney’s fee, not to exceed the lesser of $5,000 or ten percent of the amount in controversy, shall be awarded in any action where the circuit court finds that there was a complete absence of a justiciable issue of either law or fact. On appeal, the question as to whether there was a complete absence of a justiciable issue shall be determined de novo on the record of the circuit court alone. Ark. Code Ann. § 16-22-309(d). See also Adams v. Atkins, supra; Drummond v. Shepherd, 97 Ark. App. 244, 247 S.W.3d 526 (2007). Appellees argue that the circuit court erred in failing to award fees under section 16- 22-309 because res judicata clearly barred appellants’ claims. Section 16-22-309(b) provides that a lack of a justiciable issue may be found where “the action . . . was commenced, used, or continued in bad faith solely for purposes of harassing or maliciously injuring another . . . or that the party or the party’s attorney knew, or should have known, that the action . . . was without any reasonable basis in law or equity[.]” From our review of the record, we cannot say that the circuit court abused its discretion in disallowing fees under this standard. Appellants brought this action based on their contention that appellees were trespassing over the southwest corner of the Cox property to access another tract owned by appellees on which a lake is located. Although the circuit court found that appellants’ claims were barred by res judicata and that there was a boundary by acquiescence, there was nothing to indicate 10 Cite as 2016 Ark. App. 224 that this argument was made in bad faith or that it was made solely for the purpose of harassing or of maliciously injuring appellees. See, e.g., Thompson v. City of Siloam Springs, 333 Ark. 351, 969 S.W.2d 639 (1998). Under these circumstances, we affirm the circuit court’s denial of appellees’ request for attorney’s fees. Affirmed in part; reversed in part on direct appeal; remanded with instructions; affirmed on cross-appeal. WHITEAKER and HOOFMAN, JJ., agree. The Alford Firm, by: Fredye Long Alford, for appellants. Arnold, Batson, Turner & Turner, PA, by: Todd Turner, for appellees. 11	{ "pile_set_name": "FreeLaw" }
United States Court of Appeals for the Federal Circuit ______________________ SYNOPSYS, INC., Plaintiff-Appellant v. MICHELLE K. LEE, DIRECTOR, U.S. PATENT AND TRADEMARK OFFICE, AND UNDER SECRETARY OF COMMERCE FOR INTELLECTUAL PROPERTY, UNITED STATES PATENT AND TRADEMARK OFFICE, MENTOR GRAPHICS CORPORATION, Defendants-Appellees ______________________ 2015-1183 ______________________ Appeal from the United States District Court for the Eastern District of Virginia in No. 1:14-cv-00674-JCC- IDD, Judge James C. Cacheris. ______________________ Decided: February 10, 2016 ______________________ ROBERT M. LOEB, Orrick, Herrington & Sutcliffe LLP, Washington, DC, argued for plaintiff-appellant. Also represented by ERIC A. SHUMSKY, JEREMY PETERMAN; INDRA NEEL CHATTERJEE, Menlo Park, CA; ANDREW D. SILVERMAN, New York, NY. 2 SYNOPSYS, INC. v. LEE MELISSA N. PATTERSON, Appellate Staff, Civil Divi- sion, United States Department of Justice, Washington, DC, argued for defendants-appellees Michelle K. Lee, United States Patent and Trademark Office. Also repre- sented by BENJAMIN C. MIZER, DANA J. BOENTE, MARK R. FREEMAN; DAVID MOSKOWITZ, Office of the United States Attorney for the Eastern District of Virginia, Alexandria, VA; NATHAN K. KELLEY, JAMIE LYNNE SIMPSON, SCOTT WEIDENFELLER, Office of the Solicitor, United States Patent and Trademark Office, Alexandria, VA. ROBERT ALLEN LONG, JR., Covington & Burling LLP, Washington, DC, argued for defendant-appellee Mentor Graphics Corporation. Also represented by KEVIN F. KING; BRADLEY CHARLES WRIGHT, Banner & Witcoff, Ltd., Washington, DC. ______________________ Before NEWMAN, DYK, and WALLACH, Circuit Judges. Opinion for the court filed by Circuit Judge DYK. Dissenting opinion filed by Circuit Judge NEWMAN. DYK, Circuit Judge. Synopsys, Inc. (“Synopsys”) brought a suit in district court under the Administrative Procedure Act (“APA”) seeking to invalidate the Patent and Trademark Office’s (“PTO”) regulation that allows the Patent Trial and Appeal Board (“the Board”) to institute inter partes review on “all or some of the challenged claims” 37 C.F.R. § 42.108. The suit also challenged the PTO’s practice of issuing final decisions on fewer than all of the claims raised in a petition. The district court dismissed the suit, finding that “Congress intended to preclude this Court from reviewing inter partes proceedings under the APA” and, alternatively, that the appeal from a final written decision of an inter partes review provides an adequate SYNOPSYS, INC. v. LEE 3 remedy, thus barring judicial review. Synopsys, Inc. v. Lee, No. 1:14CV674 (JCC/IDD), 2014 WL 5092291, at *9 (E.D. Va. Oct. 9, 2014). Synopsys appeals. In a companion case decided today, Synopsys Inc. v. Mentor Graphics Corp., No. 14-1516, slip op. (Fed. Cir. Feb. 10, 2015) (“Synopsys 1516”), Synopsys appealed from a final order of the Board concerning inter partes review of U.S. Patent No. 6,240,376, alleging that the final order was defective because it failed to address every claim challenged in the petition for inter partes review. In resolving the case, we upheld the validity of the regula- tion and the practice of the Board issuing decisions on fewer than all of the claims raised in a petition for inter partes review. Synopsys 1516, at 8–12. Our decision in the companion case resolves all of the substantive issues presented in this case; nothing remains to be decided. We therefore now vacate the district court’s opinion and dismiss the appeal as moot. See Anderson v. Green, 513 U.S. 557, 560 (1995); United States v. Munsingwear, Inc., 340 U.S. 36, 39–40 (1950). We find that, having resolved the validity of the regulation and the practice of the PTO in the companion appeal, see Synopsys 1516, this case no longer presents a “sufficient prospect that the decision will have an impact on the parties.” See 13B Charles Alan Wright, Arthur R. Miller & Edward H. Cooper, Federal Practice and Procedure § 3533 (3d ed. 2008). It is well settled that the “case-or-controversy re- quirement,” including mootness, “subsists through all stages of federal judicial proceedings, trial and appellate.” Fed. Election Comm’n v. Wisconsin Right To Life, Inc., 551 U.S. 449, 461 (2007) (internal citations and quotation marks omitted). Thus, “an appeal should [] be dismissed as moot when, by virtue of an intervening event, a court of appeals cannot grant ‘any effectual relief whatever’ in 4 SYNOPSYS, INC. v. LEE favor of the appellant.” Calderon v. Moore, 518 U.S. 149, 150 (1996) (per curiam). Where a party challenges agency action alternatively in two separate suits, and a decision in one case resolves the issues presented in the compan- ion case, the companion case becomes moot. See Dep't of Commerce v. U.S. House of Representatives, 525 U.S. 316, 344 (1999); Pharmachemie B.V. v. Barr Labs., Inc., 276 F.3d 627, 631 (D.C. Cir. 2002); 13C Charles Alan Wright & Arthur R. Miller, Federal Practice and Proce- dure § 3533.10 (3d ed. 2008) (“Among the circumstances that create mootness are rulings in other adjudicatory proceedings, including rulings by the same court in the same or companion proceedings.”) The plaintiff here appears to agree. See Response and Reply Brief of Appel- lant at 34, n.6, Synopsys, No. 14-1516 (Fed. Cir. Feb. 10, 2016). This case, thus, is now moot. DISMISSED AS MOOT COSTS No Costs United States Court of Appeals for the Federal Circuit ______________________ SYNOPSYS, INC., Plaintiff-Appellant v. MICHELLE K. LEE, DIRECTOR, U.S. PATENT AND TRADEMARK OFFICE, AND UNDER SECRETARY OF COMMERCE FOR INTELLECTUAL PROPERTY, UNITED STATES PATENT AND TRADEMARK OFFICE, MENTOR GRAPHICS CORPORATION, Defendants-Appellees ______________________ 2015-1183 ______________________ Appeal from the United States District Court for the Eastern District of Virginia in No. 1:14-cv-00674-JCC- IDD, Judge James C. Cacheris. ______________________ NEWMAN, Circuit Judge, dissenting. Our Nation’s patent system is a foundational aspect of our republic. As the complexity of government pro- gressed, the Administrative Procedure Act (APA) took its place at the core of how the Nation operates. In attuning these aspects to the complexities of patent law, the Amer- ica Invents Act removed from the standard path of APA review those issues relating to the America Invents Act. Thus by statute all judicial review is consolidated in the 2 SYNOPSYS, INC. v. LEE Federal Circuit. As such, the district court correctly dismissed this appeal for absence of jurisdiction. Because the district court did not have jurisdiction, it appropriately dismissed the case on that ground. Absence of jurisdiction does not render a case “moot”, as the panel majority posits, for there is nothing to moot. Our neces- sary role is to decide the question of jurisdiction, for that is what was appealed. The district court’s ruling was in accordance with the statute, and should be affirmed. To the extent that the panel majority has reached some other conclusion, I respectfully dissent.	{ "pile_set_name": "FreeLaw" }
447 F.3d 1082 Yvonne THOMAS, Appellant,v.ST. LOUIS BOARD OF POLICE COMMISSIONERS; Mary Nelson; Michael J. Quinn; Susan Rollins; Bartholomew Saracino; Francis G. Slay, Mayor, Appellees. No. 05-2655. United States Court of Appeals, Eighth Circuit. Submitted: February 13, 2006. Filed: May 18, 2006. Herman L. Jimerson, argued, St. Louis, MO, for appellant. Doug Leyshock, argued, Asst. Atty. Gen., Jefferson City, MO (William R. Kennedy, Asst. Atty. Gen., on the brief), for appellee. Before LOKEN, Chief Judge, BOWMAN and SMITH, Circuit Judges. BOWMAN, Circuit Judge. 1 The issue presented in this case is whether the St. Louis Board of Police Commissioners (St. Louis Board) is an "arm of the state" of Missouri for purposes of Eleventh Amendment immunity. The District Court answered the question affirmatively and dismissed the case for lack of subject matter jurisdiction. While we might be inclined to agree with the District Court were we writing on a blank slate, binding precedent directs that the St. Louis Board is not an arm of the state and thus not entitled to Eleventh Amendment immunity. Accordingly, we reverse. 2 Yvonne Thomas brought this action against the St. Louis Board and each commissioner of the board in his or her official capacity for damages arising from the acts of police officers on the St. Louis Metropolitan Police force. Thomas alleges that on the evening of June 9, 2002, two St. Louis police officers entered her back yard without her permission and performed a warrantless search. After Thomas threatened to report the police officers' behavior to their supervisor, the police officers arrested Thomas and took her to the Metropolitan St. Louis Psychiatric Center. Thomas was admitted to the center against her will. She sued the St. Louis Board1 under 42 U.S.C. § 1983 for "false arrest," "detention and confinement," and "neglecting to prevent," and under Missouri common law for "malicious abuse of process" and "intentional infliction of emotional distress." Second Amended Complaint at 2-8. 3 On May 10, 2005, a magistrate judge2 dismissed the case on the ground that the St. Louis Board was entitled to Eleventh Amendment immunity from suit in federal court.3 The magistrate judge premised his decision on the recent opinion of the Missouri Supreme Court in Smith v. State, 152 S.W.3d 275 (Mo.2005) (en banc). The court in Smith held that the St. Louis Board is an "agency of the state" for purposes of coverage under the State Legal Expense Fund (SLEF), Mo.Rev.Stat. § 105.711. Smith, 152 S.W.3d at 278. As such, judgments obtained against the St. Louis Board would be paid from the state treasury. Id. at 277 (citing Mo.Rev.Stat. § 105.711). The magistrate judge determined that the Smith holding, when considered with state statutes that create the St. Louis Board (a type of body authorized in Missouri law only for St. Louis and Kansas City) and that impose numerous requirements upon it, "compels a conclusion that the [St. Louis] Board members are entitled to Eleventh Amendment immunity in the instant case." Memorandum and Order at 8 (May 10, 2005). Thomas appeals. 4 The sovereign immunity enjoyed by states and recognized in the Eleventh Amendment4 bars private parties from bringing actions for damages against unconsenting states in federal courts. Becker v. Univ. of Neb., 191 F.3d 904, 908 (8th Cir.1999); see also Quern v. Jordan, 440 U.S. 332, 345, 99 S.Ct. 1139, 59 L.Ed.2d 358 (1979) (ruling that 42 U.S.C. § 1983 does not abrogate a state's Eleventh Amendment immunity). While Eleventh Amendment immunity "extends to states and `arms' of the state," it does not extend to local governments. Gorman v. Easley, 257 F.3d 738, 743 (8th Cir.2001), rev'd on other grounds sub nom. Barnes v. Gorman, 536 U.S. 181, 122 S.Ct. 2097, 153 L.Ed.2d 230 (2002). "[T]he question whether a particular state agency ... is ... an arm of the State, and therefore `one of the United States' within the meaning of the Eleventh Amendment, is a question of federal law." Regents of the Univ. of Cal. v. Doe, 519 U.S. 425, 429 n. 5, 117 S.Ct. 900, 137 L.Ed.2d 55 (1997). In answering that federal question, however, courts must "consider[ ] the provisions of state law that define the agency's character." Id.; see also Gorman, 257 F.3d at 743. Specifically, courts assess the agency's degree of autonomy and control over its own affairs and, more importantly, whether a money judgment against the agency will be paid with state funds. See Regents, 519 U.S. at 430, 117 S.Ct. 900; Hadley v. N. Ark. Cmty. Technical Coll., 76 F.3d 1437, 1439 (8th Cir.1996), cert. denied, 519 U.S. 1148, 117 S.Ct. 1080, 137 L.Ed.2d 215 (1997). 5 We review de novo the District Court's determination that the St. Louis Board is an arm of the state and is therefore immune from suit. See Green Acres Enters., Inc. v. United States, 418 F.3d 852, 856 (8th Cir.2005). Because the magistrate judge's decision is contrary to direct holdings of the United States Supreme Court and our Circuit, we must reverse. 6 The United States Supreme Court addressed the issue of the St. Louis Board's status for Eleventh Amendment purposes in Auer v. Robbins, 519 U.S. 452, 117 S.Ct. 905, 137 L.Ed.2d 79 (1997). In Auer, St. Louis police officers sued the St. Louis Board for overtime pay under the Fair Labor Standards Act of 1938. The St. Louis Board argued, inter alia, that the district court lacked jurisdiction over the suit "by virtue of the Eleventh Amendment." Id. at 456 n. 1, 117 S.Ct. 905. The Supreme Court rejected the St. Louis Board's assertion of sovereign immunity, holding that the St. Louis Board is not an arm of the state: 7 The Board of Police Commissioners ... does not share the immunity of the State of Missouri. While the Governor appoints four of the board's five members, Mo.Rev.Stat. § 84.030 (1994), the city of St. Louis is responsible for the board's financial liabilities, § 84.210, and the board is not subject to the State's direction or control in any other respect. It is therefore not an "arm of the State" for Eleventh Amendment purposes. 8 Id. 9 Four years after Auer, our Circuit was called upon in Gorman to address the Eleventh Amendment status of the Kansas City Board of Police Commissioners (Kansas City Board) in an action brought by a wheelchair-bound arrestee for damages he sustained while he was being transported in a police van. Gorman, 257 F.3d at 741-45. Because the Kansas City Board is created by the same set of Missouri statutes and is governed by Missouri statutes in a way that, for purposes of determining its status as a state agency vel non, is indistinguishable from the way in which the St. Louis Board is governed, we looked to two decisions involving the St. Louis Board for guidance in our analysis. First, we considered the Auer Court's holding that the St. Louis Board was not shielded by Eleventh Amendment immunity and noted that the "structure [of the Kansas City Board] mirrors that which the Supreme Court found in Auer to not be an arm of the state." Id. at 744-45. Second, we considered the holding of the Missouri Court of Appeals in Smith v. State, ___ S.W.3d ___ (2001), that the state had no obligation to pay judgments rendered against the St. Louis Board or its employees because the St. Louis Board was not a state agency for purposes of the SLEF.5 In light of these cases, we concluded that the Kansas City Board was not an arm of the state immune from suit. Gorman, 257 F.3d at 745; see also Darby v. Bratch, 287 F.3d 673, 679 (8th Cir.2002) ("Because our decision in Gorman is controlling on this issue, the District Court's determination that the Kansas City Board of Police Commissioners was entitled to Eleventh Amendment immunity must be reversed.").6 10 Recent developments in Missouri law appear to have eroded the Eleventh Amendment analyses in Auer and Gorman. First, as indicated in the magistrate judge's opinion, the Missouri Supreme Court reversed the Missouri Court of Appeals's decision in Smith and determined that the St. Louis Board is an agency of the state covered by the SLEF. See Smith, 152 S.W.3d at 278. Then, in express response to the Missouri Supreme Court's decision, the Missouri General Assembly passed a law limiting the state's obligations under the SLEF to the boards of police commissioners. See Mo.Rev.Stat. § 105.726 (Supp.2005). The new law provides that SLEF money "shall not be available for the payment of any claim or any amount required by any final judgment ... against a board of police commissioners" except to reimburse the boards of police commissioners for claims "paid by such boards on an equal share basis per claim up to a maximum of one million dollars per fiscal year." Id. § 105.726.3.7 11 These changes in Missouri's legal landscape, along with state statutes defining the character of the St. Louis Board, suggest that the St. Louis Board may be an arm of the state entitled to Eleventh Amendment immunity.8 The contrary holding in Auer, however, is directly on point and is binding. While Smith and the ensuing Missouri legislation may have undermined the status of Auer, the question is not free from doubt, and in any event it is for the Supreme Court, not this Court, to overrule Supreme Court precedent. The Supreme Court has clearly advised, "If a precedent of this Court has direct application in a case ... the Court of Appeals should follow the case which directly controls, leaving to this Court the prerogative of overruling its own decisions." Rodriguez de Quijas v. Shearson/Am. Express, Inc., 490 U.S. 477, 484, 109 S.Ct. 1917, 104 L.Ed.2d 526 (1989); see also Hutto v. Davis, 454 U.S. 370, 375, 102 S.Ct. 703, 70 L.Ed.2d 556 (1982) (per curiam) ("[U]nless we wish anarchy to prevail within the federal judicial system, a precedent of this Court must be followed by the lower federal courts no matter how misguided the judges of those courts may think it to be."); Roper v. Simmons, 543 U.S. 551, 594, 125 S.Ct. 1183, 161 L.Ed.2d 1 (2005) (O'Connor, J., dissenting) ("[I]t remains `this Court's prerogative alone to overrule one of its precedents.' ... That is so even where subsequent decisions or factual developments may appear to have `significantly undermined' the rationale for our earlier holding." (citations omitted)). 12 Because Auer controls our decision in this case, we necessarily conclude that the St. Louis Board is not protected by Eleventh Amendment immunity.9 The judgment of the District Court is reversed and the case is remanded for further proceedings. Notes: 1 A complaint against a police commissioner in his or her official capacity is construed as a complaint against the St. Louis BoardSee Drake v. Koss, 439 F.3d 441, 445 n. 2 (8th Cir.2006) (construing a complaint against jailers in their official capacities as a complaint against jail). For simplicity, we will refer only to the St. Louis Board in our discussion of the defendants. 2 The case below proceeded before a magistrate judge by consent of the parties pursuant to 28 U.S.C. § 636(c) (2000) 3 The magistrate judge had previously entered judgment for the St. Louis Board on Thomas's "false arrest" and "detention and confinement" claims. Thomas does not appeal that decision 4 "[T]he phrase `Eleventh Amendment immunity' is convenient shorthand but something of a misnomer, for the sovereign immunity of the States neither derives from, nor is limited by, the terms of the Eleventh Amendment."N. Ins. Co. of N.Y. v. Chatham County, Ga., ___ U.S. ____, 126 S.Ct. 1689, 1693, ___ L.Ed.2d ____ (2006) (quotation marks and citation omitted). 5 This decision of the Missouri Court of Appeals was appealed to the Missouri Supreme Court, which dismissed the appeal as prematureSmith v. State, 63 S.W.3d 218 (Mo. 2001) (en banc). The Missouri Supreme Court eventually decided the merits of the case in Smith v. State, 152 S.W.3d 275 (Mo. 2005) (en banc), the opinion on which the magistrate judge in this case relied. 6 To our surprise and dismay, neither the parties nor the magistrate judge citedAuer, Gorman, or Darby. 7 Likewise, new § 105.726.4 provides that, while the state attorney general must represent the boards of police commissioners if so requested, "[t]he attorney general and the officials of the city which the police board represents shall meet and negotiate reasonable expenses or charges that will fairly compensate the attorney general and the office of administration for the cost of representation." Mo.Rev.Stat. § 105.726.4 (Supp.2005) 8 A number of factors suggest that the St. Louis Board is an arm of the state of Missouri entitled to Eleventh Amendment immunity. The St. Louis Board, along with the Kansas City Board, was established pursuant to legislation that was a direct state response to perceived problems of political corruption of the police forces in St. Louis and Kansas City. Under current state law, state treasury money will be used to pay at least a portion of legal judgments entered against the board. Mo. Rev.Stat. § 105.726.3 (Supp.2005). Also significant is the considerable control that the state exercises over the board. Four of the board's five members are appointed by the governor of Missouri with the advice and consent of the Missouri SenateId. § 84.030 (2000). The governor also has the power to remove any commissioner that the governor deems "guilty of official misconduct." Id. § 84.080. The state delineates the qualifications of commissioners and also determines the commissioners' salaries. Id. § 84.040. The duties and powers of the board are set by state statute, id. § 84.090, and the city of St. Louis is specifically prohibited from passing ordinances interfering with these powers, id. § 84.010. The administration of the St. Louis police force is also largely in the hands of the state. State statutes set the size of the police force, id. § 84.100; qualifications of police officers, id. § 84.120; length of police officer shifts, id. § 84.110; vacation time earned by police officers, id. § 84.140 (Supp.2005); the maximum amount of police officer salary, id. § 84.160; and insurance benefits that the board must provide police officers, id. 9 We note that the Supreme Court may wish to revisit the matter in the wake of the post-Auer developments in Missouri law. See Regents, 519 U.S. at 429 n. 5, 117 S.Ct. 900 (noting that the "federal question [of whether an agency is an arm of the state] can be answered only after considering the provisions of state law that define the agency's character.").	{ "pile_set_name": "FreeLaw" }
96 F.Supp.2d 31 (2000) Marcus EDWARDS, Petitioner, v. Paul MURPHY, Superintendent, Old Colony Correctional Center, Defendant. Michael Payne, Petitioner, v. Paul Murphy, Superintendent, Old Colony Correctional Center, Defendant. Nos. Civ. 98-12000-REK, 99-10012-EFH. United States District Court, D. Massachusetts. April 24, 2000. 32 33 Page Kelley, Committee for Public Counsel Service, Cambridge, MA, for Marcus Edwards, plaintiff. Cathryn A. Neaves, Attorney General's Office, Boston, MA, L. Scott Harshbarger, Attorney General's Office, Torts Division, Boston, MA, for Paul Murphy, defendant. David P. Hoose, Katz, Sasson & Hoose, Springfield, MA, for Michael Payne, respondent. Opinion KEETON, District Judge. In this consolidated action, Marcus Edwards ("Edwards") and Michael Payne ("Payne") petition this court for habeas corpus relief under 28 U.S.C. § 2254. For the following reasons, their petitions are dismissed. I. Factual and Procedural Background A. Procedural History In April, 1993, a Suffolk County grand jury returned indictments against both petitioners alleging two counts of murder, two counts of armed robbery, and one count of illegal possession of a firearm. In May, 1994, Judge Stephen Neel heard petitioners' motions to suppress eyewitness identifications. The court denied those motions on June 3, 1994. On June 6, 1994, both petitioners were tried before a Suffolk County jury with Judge Moriarity presiding. On June 14, 1994, the jury returned guilty verdicts of murder in the first degree against both Edwards and Payne. Edwards and Payne were each found guilty also of one count of armed robbery and one count of the possession of a firearm. Each was acquitted on the other count of armed robbery. On June 21, 1994, Edwards and Payne were sentenced to life in prison without the possibility of parole for the murder convictions, and lesser concurrent sentences for the other convictions. Both Edwards and Payne appealed their convictions to the Supreme Judicial Court (SJC). On February 17, 1998, in a published opinion, Commonwealth v. Michael Payne, 426 Mass. 692, 690 N.E.2d 443 (1998), the SJC affirmed petitioners' convictions. Edwards filed a petition for writ of habeas corpus with this court on September 21, 1998. See Edwards v. Murphy, Civil Action No. 98-12000-REK. Payne filed a petition for writ of habeas corpus with this court on December 22, 1998. See Payne v. Murphy, Civil Action No. 99-10012-EFH. On April 21, 1999, respondent Murphy filed a Motion to Consolidate Habeas Corpus Proceedings Pursuant to Federal Rule of Civil Procedure 42(a). See Civil Action No. 99-10012-EFH, Docket No. 6 and Civil Action No. 98-12000-REK, Docket No. 18. On June 18, 1999, respondent's motion was allowed and petitioners' cases were 34 consolidated, the lead case being Edwards v. Murphy, 98-12000-REK. See Docket No. 20 in Civil Action 98-12000-REK. B. Petitioners' Arguments for Habeas Corpus Relief Both petitioners argue that the trial judge's instructions on reasonable doubt, which contained "moral certainty" language, violated their rights under the Fourteenth Amendment because, they argue, the instructions "permitted the jury to find guilty under a standard less than beyond a reasonable doubt." Docket No. 23 at 9. Payne, alone, also argues that both the motion judge and the SJC failed to protect his due process rights when ruling that the pre-trial photographic identifications of him by several witnesses were not suggestive and were reliable despite the fact that the identifying witnesses were exposed to media images of him while he was in police custody for the crimes for which he was eventually convicted. See Docket No. 14 at 12. C. Facts at Trial 1. As recited by the SJC The SJC provided the following recitation of the facts "in the light most favorable to the Commonwealth, reserving certain details for discussion in conjunction with certain issues raised." Com. v. Payne, 426 Mass. at 693, 690 N.E.2d. at 446. On March 28, 1993, at approximately 4 a.m., the defendants and the two victims, Kevin Christopher and Lloyd Industrious, were among a group of people gathered on Lindsay Street in the Dorchester section of Boston. A party at a Lindsay Street residence had just broken up, and the victims were sitting in a motor vehicle. According to several eyewitnesses, the defendants suddenly fired several shots at the victims, killing them. At least one of the defendants then approached, grabbed jewelry from one or both of the victims, and fled on foot. Christopher suffered eleven gunshot wounds and Industrious seven. Id. at 693-94, 690 N.E.2d 443. 2. As Recited by the Motion Judge for the Purpose of the Suppression Hearing The motion judge, Judge Neel, in denying petitioners' motions to suppress identifications, made the following findings of fact. Based on the credible evidence presented at the suppression hearing, I make the following findings. On Saturday, March 27, 1993, at approximately 10:30 p.m., Charae Chretien and three friends (Carol Rich, Anna Bodden and Stacy Williams) arrived at a party at 28 Lindsay Street in Boston. Charae was just turning nineteen. Anna and Carol were then sixteen. Charae brought the other three in her car. With them were Bree Peterson and Adrienne Castillo, both then seventeen. After dropping Stacy off, and attempting unsuccessfully to enter another party on Commonwealth Avenue, Charae, Carol, Anna, Bree and Adrienne returned to the Lindsay Street party at or soon after midnight. Anna testified that she had two beers at the party on Commonwealth Avenue, with the same group of young women with whom she had been at Lindsay Street. I do not credit that testimony, in view of the testimony of Charae that the group was not admitted to that party, and in view of Anna's own prior inconsistent statement on police. (Exhibit 5 at 4). At the hearing, Anna was clearly terrified and in tears, and said that she was in fear for her life should her testimony help convict the defendants. In my judgment, she chose not to remember certain facts as a result of these fears, and manufactured other facts designed to reduce the utility of her testimony. 35 After the group returned to the party at Lindsay Street, they remained there until sometime after 4:00 a.m. on Sunday, March 28. During that time, neither Charae, Carol, Adrienne or Bree had any alcoholic beverages or drugs. Anna testified that she had "a lot" to drink, from "wine and stuff" set out in plastic cups on a table; she estimated that she had five drinks, stated that she ate food as well, and testified that she "felt drunk" and had trouble walking when she left the party. Only Carol testified that she saw Anna drinking; Carole is Anna's cousin. Bree, Adrienne and Charae testified that they did not see Anna having any drinks. I find that Anna did have some alcoholic beverages after returning to the party; that she had fewer than five cups of wine; and that, in view of the four-hour period over which she consumed those drinks, her eating of food during that period, and her average height and weight, she was at most mildly inebriated by the time she left the party. Her faculties and powers of observation and recall were not significantly impaired. Anna, Charae, Adrienne, Carol and Bree left the party as it was breaking up sometime after 4:00 a.m., and walked up the street toward Charae's car. With them was "Jamie." When they arrived at the car, Charae sat in the driver's seat' Adrienne sat in the middle next to her; Anna sat in the right front passenger seat; Carol sat behind Charae; Jamie sat behind Adrienne; and Bree sat behind Anna. Identification by Anna Bodden As she sat in the car after the party, Anna saw "Pookie" come over to the driver's side and heard him converse with Charae. Anna had seen "Mark, Pookie, Chris and Lonnie" at the party. Anna heard Pookie ask Charae if she would call him, and he had her repeat his telephone number. As and just after Pookie left the driver's side of the car, and while he was standing near the car, Anna heard shots, looked in front of the car in which she sat, and saw people shooting. She watched the shooting for about five seconds. The lighting was sufficient to see the persons doing the shooting. After the shooting stopped, Anna saw someone take a chain from one of the victims. At the suppression hearing Anna stated that she did not recall, and could not describe, the two or three persons doing the shooting, or the person who took the chain. Anna saw one victim on the right side of her car being shot, and then saw the shooter run back toward her. She and the other occupants of the car, in shock and hysterical, then drove off. At about 7:00 p.m. on March 28, 1993, Boston police officers Det. Sgt. Charles M. Horsley and Det. Trailer visited Anna at her aunt's house. They interviewed her, but showed her no photographs at that time. She told them that Marcus Edwards had been at the party on Lindsay Street. On March 29, 1993, Det. Sgt. Horsley and Det. Trailer, accompanied by Det. Halsted, again visited Anna at her aunt's house. This time they showed her a book containing front and side photographs of eighty-eight young black males. The photographs were arranged so that four subjects were pictured on each page; when the book was opened after the first page, Anna saw eight different subjects. None of the photographs bore names or similar written identification. The officers sat Anna at a table, put the books before her, and asked her to go through each page and to tell them when she saw someone she recognized or knew as having been at the party or involved in the shooting. Anna looked through the book and, pointing at their photographs, identified Marcus Edwards (page 8, photograph number 30) as the boy she saw take a chain from one victim 36 as he lay on the ground; Lonnie Watkins (page 11, photograph number 42) as one of the boys on the porch at the party, and one who shot that victim; and two other persons. Contrary to Anna's testimony at the suppression hearing, I find that the officers did not tell her to stop at two or three specific pages; did not tell her to go back over certain pages; and did not ask her if she was sure that she recognized no one on certain pages. Although Anna testified that she felt at the time that she had "no choice but to pick out someone," I find that she was not coerced and that the officers made no suggestions or instructions of the type she described. Identification by Adrienne Castillo As Adrienne sat in the front middle seat of Charae's car after the party, she observed two males who had been at the party. They stood on either side of a car parked in front of where she sat, separated from her by an empty parking space. One, who was tall and skinny, stood by the driver's side; the other, short one stood at the passenger side. At the party she had noticed that the latter wore a bandanna and a big gold chain, and had a cane with a gold handle. Adrienne also observed Charae, in the driver's seat next to her, talking with someone she had earlier heard referred to as "Marcus." Adrienne heard Marcus give Charae his phone number and ask her to repeat it. She observed that Marcus wore a dark jacket with "Sox" in white on the back. She described Marcus as about five feet seven inches tall, with light brown, distinctive eyes. Marcus had left Charae and was in front of her car when Adrienne heard noises, and turned around toward the front. There she saw between four and eight people, including Marcus and Michael Payne (whom she had seen at the party), shooting. She saw Michael in the street, toward the driver's side of her car. She observed that Michael was wearing a white shirt, and was five feet six or seven inches tall. It was dark, but she could see the faces of the shooters. Out of the corner of her eye she also saw Lonnie Watkins, who was over six feet tall, on the sidewalk. She had spoken with him at the party and had asked him his name. She does not recall seeing him with a gun in his hand. During the shooting Adrienne did not duck, but watched. She and the others in the car were silent until the shooting stopped. She saw the victim on the driver's side of the car in front of her "hanging through the car" and the other victim lying on the sidewalk. After she observed Marcus shoot at the short victim, she saw him run after the shooting had stopped, come back, shoot that victim in the head at close range, take his chain, and run again. At approximately 4:00 p.m. on March 28, 1993, Det. Horsley and other officers interviewed Adrienne at the District Two station in Roxbury. She stated that Marcus Edwards and Michael Payne were two of the shooters. They did not show her photographs at that time. On the evening of March 29, Det. Horsley, Det. Halsted and Det. Trailer went to Adrienne's home and showed her the book of eighty-eight subjects. At the time, they were alone in a room with her. As with Anna, they placed the book before Adrienne and asked her if she recognized anyone from the party or the incident. She stopped at Edward's picture (page 8, number 30) and said "That's Pookie." she also selected the photograph of Ricardo Middleton (page 10, number 40), saying that it "looks like Chris, but Chris is darker." She recalled Chris as being beside the car of the victims, but did not recall anything that he did. The book did not contain a photograph of Michael Payne. 37 During the first week after the shootings, Adrienne saw pictures of persons arrested, both on television and in newspapers. On April 7, 1993, Det. Horsley met with Adrienne in Boston, just prior to her testimony before the grand jury. No one else was present. He handed her a stack of fourteen photographs, asking her to look through them and to identify anyone present at the incident. He had selected the photographs from those of black males of approximately the same age and complexion. The photographs contained no written identifying information. He did not suggest that she choose any particular photograph. She identified Michael Payne's photograph as looking like "a boy who looks like Michael." She had seen Michael's picture in the media, but identified his photograph based on her memory of his presence at the party and his participation in the shooting. Identification by Bree Peterson As Bree sat in the back passenger-side seat of Charae's car, she saw Charae, in the driver's seat, talking with a young man in the street. She observed that he was light-skinned, attractive, about five feet seven inches tall, and had "nice yes." She had heard him referred to at the party as "Pookie." He shut the driver's side door and walked in front of the car. Bree then observed him and three others begin shooting. He was on the right side of the two victim's car. She saw him stop shooting, bend down in front of him, pick something up, then run back by the passenger's side of the car in which Bree sat. After the incident, Det. Horsley interviewed Bree at her workplace, but did not show her photographs. On April 7, 1993, just prior to her grand jury testimony, Det. Horsley showed her the group of fourteen photographs referred to above, a couple at a time. He asked her to look at them and tell him if any looked like persons at the party, but made no other suggestion to her. Bree identified the photographs of Michael Payne (number 406109) and Tim Taylor (number 393183) as looking like two males who were at the party, and on the street at the time of the shooting. Although Bree had seen news accounts of the shooting, she had not seen photographs of either Payne of Taylor prior to April 7. She did not know the name of either. Identification by Charae Chretien Charae had two conversations at the party prior to the shootings. "Pookie" and Charae had been dancing at the party and later, on the front porch, Pookie told her his telephone number and asked her to call him. Michael Payne asked her if she remembered him, and reminded her that they had bowled together six or seven years before. She replied that she recognized him and said, "You're Michael, right?" He said, "Yes." After the party, she sat in the driver's seat of her car talking with Pookie. She observed him to be "taller than me" (she is five feet five inches), between five feet seven inches and six feet tall. She saw that he had "pretty eyes," light and "hazel-greenish." He asked her if she remembered his telephone number, and she said that she did and repeated it. She saw him leave the car and walk in front of it. Then she saw him and six or seven of his friends, including Michael, walk to another car and start shooting. She saw Michael shoot at the victim on the passenger side of the victim's car, and grab a chain from a victim. She saw Pookie shoot at the victim on the passenger side of the victim's car, and grab a chain from a victim. She saw Pookie shoot that victim, run past her, then run back to the victims, shoot one more time, and grab a gold chain. Sometime after 4:00 p.m. on March 28, 1993, Det. Horsley interviewed Charee 38 at the District Two station in Roxbury. She told him the names of Pookie and Michael Payne, and said that they were two of the shooters. The following evening, Det. Horsley, Det. Halsted and Det. Trailer went to Charae's home. Det. Horsley sat Charae at her kitchen table, put the book of eighty-eight subjects before her, and asked if she could identify anyone who was at the party or involved in the shootings. The officers made no other suggestions to Charae. Charae stopped at the photograph of Marcus Edwards (page 8, number 30) and identified him as Pookie, the boy at the party who had given her his telephone number. She also identified a photograph of Mark Anderson, who she said had "eyes that look like a boy who had on a hood at the party." Prior to this time she had not seen pictures in the media of suspects arrested for the shootings. On April 7, 1993, just prior to her testimony to the grand jury, Charae met with Det. Horsley, who handed her the above-mentioned group of fourteen photographs. He made no suggestion to her other than asking her to identify anyone she saw at the party or at the shooting. She picked out a photograph of Michael Payne. Prior to that time she had seen Michael's picture in the newspaper and on television; however, that did not influence her identification of him, which was based on her memory of the party and the shootings. Docket No. 8, Item No. 1 at 64-73 (Payne Supp. Ans) in Civil Action 99-10012-EFH. 3. Jury Instructions at Trial The trial judge's jury instructions on reasonable doubt were as follows: Now the presumption of innocence means that alright, but it also means a great deal more than that. The presumption of innocence also means that no one charged with having committed a crime must prove his or her innocence. Quite the contrary is true. The Commonwealth, the government must prove his or her guilt and must prove it beyond any reasonable doubt. And it's the absolute right of everyone of us, that includes all of you, it includes me, and it includes those two defendants over there, if charged with crime to simply come to court, plead not guilty, and then say to the Commonwealth, now you prove it. And say absolutely nothing else if we wish. The burden then rests upon the Commonwealth to prove each essential element of the crime that has been charged and to prove it beyond any reasonable doubt. Now, I've stressed, I hope you've noticed that I stress that last expression, beyond any reasonable doubt. I've done that quite deliberately, because that is the second, but equally important part of this concept. It, too, requires some explanation. What precisely does that mean? Just by way of contrast, if early last week when you came here to court to serve as jurors you had been selected to sit on the trial of a civil case rather than a criminal case, you probably would have learned in the course of such a trial that in a civil case one side or the other has the burden of proving facts by what we call a fair preponderance of evidence, which really means to prove that a given fact is more likely, more probable, than not. That's the standard in a civil case. In a criminal case, and this is a criminal case, the burden that rests on the government is much greater than that. To simply prove in a criminal case that the defendant is probably guilty or more likely guilty than not is not nearly enough. In a criminal case the facts must be proved beyond reasonable doubt. That means to a moral certainty. Anything less than that degree of conviction as to any fact or facts necessary to a conviction upon a particular charge would mean that the Commonwealth had not proved its case, and the defendant would be entitled to an acquittal. 39 Now a word of caution, however. Proof beyond reasonable doubt does not mean proof beyond all doubt or an imaginary doubt. A reasonable doubt, for example, is not the doubt that might exist in the mind of a man or a woman searching for some doubt, for some excuse to acquit a defendant. It does not mean that. And it does not mean absolute proof or proof to a mathematical certainty, if there is such a thing as mathematical certainty. What it does mean is such proof as fully convinces you as reasonable persons earnestly seeking the truth that the defendant is guilty. But if after all is said and done there remains in the minds of the jury any reasonable doubt as to the existence of any fact or facts necessary to a conviction upon the particular charge, then it becomes the duty of the jury to resolve that doubt in favor of the defendant and find him not guilty. Docket No. 14, Exh. 1 at A1-A3 (Transcript of Trial Judge's Jury Instructions) in Civil Action No. 98-12000-REK. II. Standard of Review A. Introduction This habeas case is governed by the Antiterrorism and Effective Death Penalty Act, Pub.L. No. 104-132, 110 Stat. 1214 (1996) (codified in scattered section of 28 U.S.C.) (hereinafter "AEDPA"). That statute, enacted in 1996, greatly reduced the scope of a federal habeas court's review over a state court proceeding in several ways. First. Federal habeas courts are instructed by AEDPA's section 2254(e) to presume state court findings of fact to be correct, a presumption the habeas petitioner can rebut only by clear and convincing evidence. 28 U.S.C.A. § 2254(e)(1). As the Court of Appeals for the First Circuit has recently stated, "[f]or this purpose, factual issues are defined as basic, primary, or historical facts: facts in the sense of a recital of external events and the credibility of their narrators." Coombs v. State of Maine, 202 F.3d 14, 18 (2000) (internal quotations and citations omitted). Second. As for a federal habeas court's review of a state court's legal determinations, including "mixed questions of law and fact in which legal principles are applied to historical facts," id., habeas relief shall be granted only where the state court's adjudication (1) resulted in a decision that was contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court of the United States; or (2) resulted in a decision that was based on an unreasonable determination of the facts in light of the evidence presented in the State court proceeding. 28 U.S.C. § 2254(d). See also O'Brien v. Dubois, 145 F.3d 16, 22-23 (1st Cir.1998). B. First Circuit Jurisprudence Interpreting Section 2254(d)(1) of AEDPA 1. Introduction Section 2254(d)(1) has been the subject of much interpretation and controversy among the circuit courts of appeals. Almost two years ago, in O'Brien v. Dubois, 145 F.3d 16, 22-23 (1st Cir.1998), the United States Court of Appeals for the First Circuit set forth its interpretation of section 2254(d)(1), the section applicable to the present consolidated cases. O'Brien announced a two-step analysis for examining claims for habeas relief under section 2254(d)(1) of AEDPA. First, the habeas court asks whether the Supreme Court has prescribed a rule that governs the petitioner's claim. If so, the habeas court gauges whether the state court decision is "contrary to" the governing rule. In the absence of a governing rule, the "contrary to" clause drops from the equation and the habeas court takes the second step. At this stage, the habeas court determines whether the state court's use of (or failure 40 to use) existing law in deciding the petitioner's claim involved an "unreasonable application" of Supreme Court precedent. Id. at 24. 2. "Contrary To" With regard to the "contrary to" prong, the court in O'Brien looked to the Teague line of cases for guidance, and held that an affirmative answer to the first section 2254(d)(1) inquiry whether the Supreme Court has prescribed a rule that governs the petitioner's claim requires something more than a recognition that the Supreme Court has articulated a general standard that covers the claim. To obtain relief at this stage, a habeas petitioner must show that Supreme Court precedent requires an outcome contrary to that reached by the relevant state court. We caution that this criterion should not be applied in too rigid a manner. A petitioner need not point a habeas court to a factually identical precedent. Oftentimes, Supreme Court holdings are "general" in the sense that they erect a framework specifically intended for application to variant factual situations. These rules sufficiently shape the contours of an appropriate analysis of a claim of constitutional error to merit review of a state court's decision under section 2254(d)(1)'s "contrary to" prong.... Id. at 24-25. Examples of such "framework" analyses that would be governed by the "contrary to" prong of § 2254(d)(1), are, according to the O'Brien court, easily located. See, e.g., Waller v. Georgia, 467 U.S. 39, 104 S.Ct. 2210, 81 L.Ed.2d 31 (1984) (developing test applicable to claimed violations of right to public trial), Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984) (explaining test for resolving claims of ineffective assistance of counsel); Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979) (formulating test governing insufficiency of evidence claims). Id. at 25, n. 6 Recognizing, however, that a determination of whether "contrary to" review is appropriate will prove difficult in some cases, the O'Brien court stated finally, that the key inquiry, at bottom, is whether a Supreme Court rule by virtue of its factual similarity (though not necessarily identicality) or its distillation of general federal law precepts into a channeled mode of analysis specifically intended for application to variant factual situations can fairly be said to require a particular result in a particular case. Id. at 25. 3. "Unreasonable Application" The second step in a section 2254(d)(1) analysis is triggered when the federal habeas court finds "no Supreme Court precedent [that] is dispositive of a petitioner's claim, [and thus] ... a fortiori, ... no specific rule to which the state court's decision can be `contrary.'" Id. at 25. [A] federal habeas court then determines whether the state court decision reflects an unreasonable application of clearly established Supreme Court jurisprudence. This reduces to a question of whether the state court's derivation of a case-specific rule from the Court's generally relevant jurisprudence appears objectively reasonable. Id. This second step has been subject to competing interpretations by the circuit courts of appeals. Common to all the varying interpretations, however, is the consensus that this standard is a difficult one to meet. The Court of Appeals for the First Circuit has said, in reference to this second prong of section 2254(d), that the "unreasonable application" clause does not empower a habeas court to grant the writ merely because it disagrees with the state court's decision, or 41 because, left to its own devices, it would have reached a different result. Rather, for the writ to issue, the state court decision must be so offensive to existing precedent, so devoid of record support, or so arbitrary, as to indicate that it is outside the universe of plausible, credible outcomes. Id. at 25. In contrast to other circuits, the O'Brien court explained that their interpretation of the "unreasonable application" prong is not as limited as its sister circuits have interpreted it to be. The Fifth Circuit has articulated an unreasonableness standard that allows the writ to issue "only if a state court decision is so clearly incorrect that it would not be debatable among reasonable jurists." Drinkard, 97 F.3d at 769; accord Neelley, 138 F.3d at 924. We decline to adopt this formulation for two reasons. First, the test is circular inasmuch as it defines "unreasonable application" by reference to what "reasonable jurists" think about an issue. Second, and more importantly, we regard the test as too deferential because it focuses on the reasonableness of individual judges, more so than on the reasonableness of judicial decisions. Given that reasonable judges occasionally make unreasonable decisions, the Drinkard court's interpretation of the "unreasonable application" clause could drain it of much of its practical meaning. Id. at 25, n. 7. 4. A Federal Habeas Court Must Reach Both Prongs of § 2254(d)(1) Finally, more recently in Vieux v. Pepe, the Court of Appeals for the First Circuit further explained the analytic framework of section 2254(d)(1) by stating that a federal habeas court must reach both prongs of section 2254(d)(1), even if a decision under the first seems to foreclose a contrary decision under the second. [I]n certain cases, especially those involving non-"framework" claims, Court precedent will be sufficiently specific that petitioner's claim will either be contrary to or entirely consonant with the Court's rulings. If the state decision is consistent with the relevant Court decision, it plainly would not be an unreasonable application of Court precedent. Therefore, the federal court will be able to dispatch swiftly any argument under the second step of analysis. To say this, however, is not to say that the second step analysis is unnecessary, for unless a habeas court grants relief under the "contrary to" prong, it will be required to analyze the petitioner's claim under the "unreasonable application" prong as well. To rule otherwise would be to ignore the word "or" in the statute limiting our power to grant the writ if the state decision was "contrary to, or involved an unreasonable application of," federal law. Vieux v. Pepe, 184 F.3d 59, 64 (1st. Cir. 1999) (citations omitted). III. Petitioners' Argument for De Novo Review As a preliminary matter, I reject petitioners' argument that because the Supreme Judicial Court of Massachusetts (SJC) failed to cite to federal law in its adjudication of petitioners' habeas claims, this federal district court then must review petitioners' claims de novo, without the deference required under AEDPA. The principal case that petitioners cite in support of their contention that this court should review their claims de novo is Cardwell v. Greene, 152 F.3d 331 (4th Cir. 1998). In that case, the Court of Appeals for the Fourth Circuit determined it necessary to forgo review of the state court's application of clearly established Federal law because the state court had summarily dismissed the habeas petition without articulating any rational basis for its adverse determination. In other words, the court in Cardwell determined that because of the bare record in the state court below it had no choice but to ascertain independently 42 without any deference to the state's determination because that state determination was without any reasoned explanation whether the petitioner was being held in violation of the federal Constitution. Cardwell is inapposite for the following reasons. First. As a matter of statutory construction, AEDPA does not require that a state court cite to federal law in order for a federal court to assess properly the federal constitutionality of the state petitioner's conviction. All that is required, by force of AEDPA's plain language, is that the underlying state adjudication "resulted in a decision that was contrary to, or involved an unreasonable application of, clearly established Federal law ..." 28 U.S.C. § 2254(d)(1) (emphasis added). The Court of Appeals for the First Circuit has said as much in O'Brien when, in discussing the second prong of § 2254(d)(1), they instructed "the habeas court [to] determine[ ] whether the state court's use of (or failure to use) existing law in deciding the petitioner's claim involved an `unreasonable application' of Supreme Court precedent." O'Brien, 145 F.3d at 23 (emphasis added). Although it may be more difficult to review the "application of" federal law when the state's determination does not discuss federal law, that added difficulty does not preclude the applicability of AEDPA's deferential review. On the contrary, AEDPA's plain language and First Circuit jurisprudence together mandate that the federal habeas court review the result of the state court's outcome to determine its compatibility with the Constitution of the United States under the standard set forth in § 2254(d)(1). Second. Unlike the Virginia Supreme Court decision that was reviewed in Cardwell, the Massachusetts Supreme Judicial Court did not summarily deny petitioners' claims but wrote a lengthy opinion addressing both issues raised here in federal habeas review, as well as several others. Thus, although it is true that the SJC did not cite to federal law in its rejection of petitioners' claims, see Com. v. Payne, 426 Mass. 692, 690 N.E.2d 443 (1998), it did consider those claims at length, citing to ample state authority, much of which provides commensurable or even greater protection to defendants than that guaranteed by the Constitution of the United States. IV. Analysis of Reasonable Doubt Instruction in Light of Moral Certainty Language A. Introduction Petitioners contend that the trial judge's use of "moral certainty" to explicate the reasonable doubt standard permitted the jury to return a guilty verdict on a standard that is not constitutionally supportable. In re Winship established the principle, by now axiomatic but not taken for granted, that in a criminal trial, the government must prove every element of the offense charged beyond a reasonable doubt. See In re Winship, 397 U.S. 358, 364, 90 S.Ct. 1068, 25 L.Ed.2d 368 (1970). Since that 1970 case, the Supreme Court jurisprudence has become still more instructive as to when jury instructions satisfy the constitutional standard and when they offend it. See, e.g., Victor v. Nebraska, 511 U.S. 1, 114 S.Ct. 1239, 127 L.Ed.2d 583 (1994); Estelle v. McGuire, 502 U.S. 62, 112 S.Ct. 475, 116 L.Ed.2d 385 (1991); Cage v. Louisiana, 498 U.S. 39, 111 S.Ct. 328, 112 L.Ed.2d 339 (1990); Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979). This jurisprudence came to a new focus, in 1990, when Cage v. Louisiana was decided by the Supreme Court (the only Supreme Court decision to hold that a definition of reasonable doubt violated the Due Process Clause, see Cage, 498 U.S. at 41, 111 S.Ct. 328), and again later, in 1994, when Victor v. Nebraska was decided. See Victor, 511 U.S. at 5, 114 S.Ct. 1239. Some scholars and courts have expressed the thought that an apparent discrepancy between Cage and Victor 43 is in fact a further clarification of the formulation for a constitutionally supportable jury charge that includes "moral certainty" language. See e.g., Stephen J. Fortunato, Jr., Instructing on Reasonable Doubt after Victor v. Nebraska: A Trial Judge's Certain Thoughts on Certainty, 41 VILL.L.REV. 365 (1996); George M. Dery III, The Atrophying of the Reasonable Doubt Standard: The United States Supreme Courts Missed Opportunity in Victor v. Nebraska and Its Implications in the Courtroom, 99 DICK.L.REV. 613 (1995); Note, Reasonable Doubt: An Argument Against Definition, 108 HARV.L.REV. 1955 (1995); Paul C. Smith, Note, The Process of Reasonable Doubt: A Proposed Instruction in Response to Victor v. Nebraska, 41 WAYNE L.REV. 1811 (1995). B. The Supreme Court Jurisprudence Cage involves a jury instruction that defined reasonable doubt as a doubt that would give rise to a grave uncertainty, raised in your mind by reasons of the unsatisfactory character of the evidence or lack thereof. A reasonable doubt is not a mere possible doubt. It is a doubt that a reasonable man can seriously entertain. What is required is not an absolute or mathematical certainty, but a moral certainty. Cage, 498 U.S. at 40, 111 S.Ct. 328. The Supreme Court in Cage held this jury instruction constitutionally insupportable because, as the Court said, "it becomes clear that a reasonable juror" when considering the words "substantial" and "grave," with reference to and in close proximity to the phrase "moral certainty," rather than in the explicit context of an evidentiary certainty, "could have interpreted the instruction to allow a finding of guilt based on a degree of proof below that required by the Due Process Clause." Id. at 41, 111 S.Ct. 328. Four years later in Victor, the Supreme Court upheld the trial judge's jury instructions that nevertheless contained "moral certainty" language. In so doing, the Court explained more fully in what circumstances "moral certainty" language is constitutionally insupportable, that is when a reasonable likelihood exists that the jury applied the instruction in an unconstitutional manner. See Victor, 511 U.S. at 6, 114 S.Ct. 1239 (citing Estelle v. McGuire, 502 U.S. at 72, 112 S.Ct. 475). The Supreme Court began by explaining the historical context of the phrase "moral certainty." By the beginning of the Republic, lawyers had borrowed the concept of "moral evidence" from the philosophers and historians of the 17th and 18th centuries. James Wilson, who was instrumental in framing the Constitution and who served as one of the original Members of this Court, explained in a 1790 lecture on law that "evidence ... is divided into two speciesdemonstrative and moral." ... The phrase "moral certainty" shares an epistemological pedigree with moral evidence. Moral certainty was the highest degree of certitude based on such evidence. Victor, 511 U.S. at 11-12, 114 S.Ct. 1239 (citations omitted). In such a context, the Court conceded, it became clear that the phrase "moral certainty" has lost its meaning as that species of certainty that is inextricably bound to the facts in evidence and could be closer in meaning, as the petitioner in Victor feared, to a kind of certainty that is based instead on some personal, non-fact-related conviction. This conclusion, however, did not persuade the Court that the jury instructions at issue containing "moral certainty" language were automatically infirm. On the contrary, the consideration of the constitutionality of the state court's jury instructions must take into account the charge as a whole and the placement of the "moral certainty" language in relation to instructions concerning the evidence received in the presence of the jury. [T]he moral certainty language cannot be sequestered from its surroundings. 44 In the Cage instruction, the jurors were simply told that they had to be morally certain of the defendant's guilt; there was nothing else in the instruction to lend meaning to the phrase. Not so here. The jury in [petitioner's] case was told that a reasonable doubt is "that state of the case which, after the entire comparison and consideration of all the evidence, leaves the minds of the jurors in that condition that they cannot say they feel an abiding conviction, to a moral certainty, of the truth of the charge." The instruction thus explicitly told the jurors that their conclusion had to be based on the evidence in the case. Other instructions reinforced this message. The jury was told "to determine the facts of the case from the evidence received in the trial and not from any other source." ... Accordingly, there is no reasonable likelihood that the jury would have understood moral certainty to be disassociated from the evidence in the case. Id. at 16, 114 S.Ct. 1239 (citations omitted) In combination, the Supreme Court's decisions in Cage and Victor suggest at least the following two conclusions. Standing alone, "moral certainty" language might very well violate the Due Process Clause and allow a jury with more than a reasonable doubt to find the defendant guilty nevertheless. Yet, when a judge's instructions explain "moral certainty" in context as certainty that relates to the jury's consideration of the evidence received at trial in their presence, it is no longer reasonably likely that a jury would understand the words "moral certainty as suggesting a standard of proof lower than due process requires." Victor, 511 U.S. at 11-12, 114 S.Ct. 1239. C. Clearly Established Federal Law in Light of Com. v. Payne and Com. v. Watkins The SJC in Com. v. Payne upheld the trial judge's jury instructions despite the fact that it includes "moral certainty" language. The SJC did so summarily in Com. v. Payne but cited its more detailed opinion of six months earlier, in which it analyzed an instruction "virtually identical to the one at issue, given by the same judge, in a previous trial involving the same shooting." Com. v. Payne, 426 Mass. at 698-99, 690 N.E.2d 443 (citing Com. v. Watkins, 425 Mass. 830, 837-839, 683 N.E.2d 653 (1997)). The SJC's analysis in Watkins is entirely consistent with the clearly established federal law described above in Part IV.A-B. The SJC states, consistent with federal law, that "in determining the propriety of such instructions, we consider the charge as a whole and not from a consideration of isolated portions." Watkins, 425 Mass. at 837, 683 N.E.2d 653 (citations and quotations omitted). The opinion in Watkins adds that the mere presence of "moral certainty" language does not necessarily offend the Constitution as long as "it is linked with language that lends content to the phrase." Id. at 838, n. 10, 683 N.E.2d 653. And the SJC explained that the trial judge linked the phrase "reasonable doubt" to facts in evidence and stated: If after all is said and done there remains in the minds of the jury any reasonable doubt as to the existence of fact or facts necessary to a conviction upon the particular charge, then it becomes the duty of the jury to resolve that doubt in favor of the defendant and to find him not guilty. Id. at 838, 683 N.E.2d 653. The SJC concluded that this linkage between "moral certainty," "reasonable doubt" and facts in evidence "clearly informed the jurors that the Commonwealth had the burden of producing evidence and the burden of proof to persuade the jury to this high degree of certainty." Id. at 838, n. 11, 683 N.E.2d 653. In arguing that the SJC's decision is contrary to, or involves an unreasonable application of, clearly established federal law, petitioners point to one of the SJC's reasons for concluding that the trial 45 judge's instructions are constitutionally sound: that the instructions contrast the criminal burden of proofbeyond a reasonable doubtwith the civil standarda preponderance of the evidencein an effort to "stress[ ] the far higher standard required to convict a defendant in a criminal case." Id. at 838, 683 N.E.2d 653. Petitioners argue that such an explanation "advises [the jury] that the proof must be more than a preponderance, but tells them nothing about how much more. A `clear and convincing standard' could be described exactly the same way, yet this standard is plainly beneath the constitutional threshold of acceptability." Docket No. 14 at 7 in Civil Action 99-10012-REK. In essence, the petitioners argue that the trial judge's reference to a civil standard did little to lend content to the phrase "moral certainty." As explained above, however, the result of affirming the trial judge's instructions in Com. v. Payne is not contrary to the clearly established federal law that states that although jury instructions containing "moral certainty" language may be constitutionally suspect, when that language is set in the context of the charge as a whole, and the charge as a whole roots "moral certainty" in the facts in evidence, and adequately emphasizes "beyond reasonable doubt," the charge survives a Due Process analysis. This is particularly the case, where, as in the charge upheld in Victor, the charge instructed the jury that the evidence must "fully convince[ ] you as reasonable persons earnestly seeking the truth." Docket No. 14, Exh. 1 at A3 in Civil Action 98-12000-REK. Compare Victor, 511 U.S. at 16, 114 S.Ct. 1239 (affirming a charge that instructs the jury to find the defendant guilty they must be able to say "they feel an abiding conviction ... of the truth of the charge"). Having concluded that the part of the SJC's decision in Com. v. Payne that affirms the trial judge's jury instructions as constitutionally supportable is not contrary to clearly established federal law, I turn next to the second prong of § 2254(d)(1) and consider whether the SJC's decision involves an unreasonable application of clearly established federal law. According to First Circuit precedent, the SJC's decision must be "so offensive to existing precedent, so devoid of record support, or so arbitrary, as to indicate that it outside the universe of plausible, credible outcome." O'Brien, 145 F.3d at 25. In light of the above comparison of the charge in petitioners' case with the charge that was upheld by the Supreme Court in Victor, I conclude that the SJC's decision to affirm the trial judge's jury instructions in this instance is "within the universe of plausible, credible outcomes" and therefore survives scrutiny under the second prong of § 2254(d)(1). Id. For these reasons, I conclude that petitioners have not succeeded in their claim that their writs of habeas corpus should issue on the ground that the trial court's jury instructions might have allowed a jury to find the petitioners guilty by a standard less than reasonable doubt. V. Analysis of Pre-Trial Eyewitness Identifications A. Introduction Only Petitioner Michael Payne claims constitutional error by reason of the decision to allow into evidence what Payne asserts to be impermissibly suggestive and unreliable eye-witness identifications. Payne's claim is that his due process rightsthe constitutional protection of the evidentiary interest in reliability, and hence a fair trialwere violated when the motion judge, after making the findings of fact that I have recited above in Part I of this Opinion, determined that the pre-trial identifications of the defendant Payne were not required to be excluded from trial. The motion judge also concluded that the identifications of Payne by Anna Bodden, Adrienne Castillo, Charae Chretien and Bree Peterson were not unnecessarily suggestive and were in fact reliable. 46 Acting consistently with the motion judge's earlier rulings and findings, the trial judge received the identification evidence at trial. The parts of the trial record that are before me contain no recitation of any objection at trial by the petitioners to his doing so. Petitioners, in their briefs and arguments before me, appear to be assuming that under Massachusetts practice they were bound by the motion judge's rulings and had no right to or opportunity to contend at trial that some or all of the identification evidence should not be received. I am skeptical that a state procedural rule or practice forbidding a contention before the trial judge, grounded on a proffer of new evidence, for example, or on evidence that a witness would at trial state answers different from those stated before the motion judge, would be constitutionally sustainable. I conclude, nevertheless, that this issue is not one within the scope of my authority to decide in this case. If, by a constitutional requirement, petitioners had a right to present to the trial judge a contention such as this, it was a "use or lose" right that they lost by not asking the trial judge to recognize it. Rigorously enforcing a timeliness requirement causes a dispute to be decided without reaching the merits. One may argueand, of course, advocates do sothat when a court acts in this way it exalts form over substanceprocedure over the merits. A responsive argument that sometimes wins, however, is that a rigorously enforced timeliness principle is fundamental both to fair process and to avoiding adverse effect on significant substantive rights of the parties. Under this principle, a clearly defined opportunity to present a contention must be exercised at a precisely defined time in the trial proceedings. It is a now-or-never opportunity that a party must, at that precise time, use or lose. ROBERT E. KEETON, JUDGING IN THE AMERICAN LEGAL SYSTEM 286-87 (1999) (footnotes omitted). I am guided to this conclusion not only by the "use-or-lose" principle but also by rigorous restraints imposed on federal trial judges in habeas cases by AEDPA and First Circuit precedents to which I refer in other parts of this opinion. In this instance, the SJC affirmed the motion judge's ruling and the judgment of the trial court that was consistent with it. Payne argues that the decisions by both the motion judge and the SJC involved unreasonable applications of clearly established federal law because neither "appreciated the bedrock principle of the due process analysis" that requires a determination of reliability when assessing the admissibility of identification testimony. Docket No. 14 at 12. The motion judge credited the testimony of Adrienne Castillo and Charae Chretien that recounted that they each identified Michael Payne as one of the shooters before they were exposed to any pre-identification media publicity of the defendants. See Findings of Fact as Recited by the Motion Judge for the Purpose of the Suppression Hearing, supra at Part I.B.2. In view of this finding, supportable on the record, I conclude that Payne's case for federal habeas relief largely evaporates. Such a state court finding of `basic, primary, or historical facts' based on a credibility determination is `presumed to be correct,' subject only to rebuttal by `clear and convincing evidence.' 28 U.S.C. § 2254(e)(1). Coombs v. State of Maine, 202 F.3d at 18. Payne has provided no such rebuttal here. In Parts B and C below, I proceed to analyze the state court's determinations of the suggestibility and reliability of the pretrial identifications under Supreme Court jurisprudence. 47 B. The Supreme Court Jurisprudence The Supreme Court has established a two-prong test to determine when out-of-court identifications may be admitted into evidence against the defendant at trial without violating due process. See Simmons v. United States, 390 U.S. 377, 88 S.Ct. 967, 19 L.Ed.2d 1247 (1968). See also United States v. Maguire, 918 F.2d 254, 263 (1st Cir.1990). First, a court must determine whether the out-of-court "identification was so impermissibly suggestive as to give rise to a very substantial likelihood of irreparable misidentification." Simmons, 390 U.S. at 384, 88 S.Ct. 967. The court judges the identification's suggestiveness by the "totality of the circumstance" of the identification procedure. See id. at 383, 88 S.Ct. 967. Should a court find that the identification was not suggestive, the court's due process inquiry ends. Should a court find that the identification was impermissibly suggestive, however, the court's analysis advances to the second prong of the Simmons two-prong test that looks to the reliability of the challenged identification. See id. at 385-86, 88 S.Ct. 967. See also Manson v. Brathwaite, 432 U.S. 98, 114, 97 S.Ct. 2243, 53 L.Ed.2d 140 (1977); Neil v. Biggers, 409 U.S. 188, 199, 93 S.Ct. 375, 34 L.Ed.2d 401 (1972). Factors to consider when judging the reliability, nevertheless, of a suggestive identification are: the opportunity of the witness to view the criminal at the time of the crime, the witness' degree of attention, the accuracy of his prior description of the criminal, the level of certainty demonstrated at the confrontation, and the time between the crime and the confrontation. Against these factors is to be weighed the corrupting effect of the suggestive identification itself. Manson, 432 U.S. at 114, 97 S.Ct. 2243 (citing Biggers, 409 U.S. at 199-200, 93 S.Ct. 375). Thus, a suggestive identification may nevertheless be admitted against the defendant at trial if a court finds that the identification was in fact reliable. See id. See also United States v. de Jesus-Rios, 990 F.2d 672, 677 (1st Cir.1993); United States v. Maguire, 918 F.2d 254, 263 (1st Cir.1990); United States v. Bouthot, 878 F.2d 1506, 1516 (1st Cir.1989). This Simmons-Biggers-Manson line of Supreme Court cases does not point compellingly to a disposition of petitioner's claim in his favor. In applying this line of cases to the circumstances of petitioner's case, I do not conclude that they "require a particular result." O'Brien, 145 F.3d at 25. In order to prevail on his claim, petitioner Payne must show that the state court's determination to include the out-of-court identifications at trial was an unreasonable application of the clearly established Supreme Court precedent. 28 U.S.C. § 2254(d)(1). I conclude that he has failed to do so. C. Clearly Established Federal Law in Light of Motion Judge's Decision that Admitting Eye-Witness Identification was Permissible and the SJC's Affirmance in Com. v. Payne The SJC in Com. v. Payne upheld the motion judge's determination that the out-of-court identifications were admissible because they were not impermissibly suggestive. See Com. v. Payne, 426 Mass. at 694, 690 N.E.2d 443. The SJC did not explicitly reach the issue of reliability, the second prong of the Simmons' two-prong test, because it affirmed the motion judge's determination that (1) the pre-identification media exposure did not invalidate the photographic identification and (2) the photographic array itself, which was shown to the identifying witnesses, was not unduly suggestive. Petitioner argues that the SJC erred in affirming the motion judge's determination of non-suggestiveness because its conclusion was based on the finding that the "police had nothing to do with the witnesses' exposure to the highly suggestive media images of the petitioner." Docket No. 14 at 13. Petitioner further argues 48 that because the identifications were suggestive, due to the pre-identification media exposure, the motion judge was required to make a finding of reliability under the clearly established federal law. Petitioner concludes by saying that the SJC therefore erred in affirming the motion judge's determination of admissibility when it did not reach the second prong of the Simmons' two-prong test, "reliability [being] the linchpin in determining the admissibility of identification testimony." Manson, 432 U.S. at 114, 97 S.Ct. 2243. I conclude that petitioner is correct in stating that "federal courts should scrutinize all suggestive identification procedures, not just those orchestrated by the police, to determine if they would sufficiently taint the trial so as to deprive the defendant of due process," Bouthot, 878 F.2d at 1515 (emphasis added). Petitioner's due process claim nevertheless fails for the following two reasons. First. The motion judge did not stop at a determination of non-suggestiveness, as petitioner claims, but went further and made a finding of reliability, albeit in a footnote. When reviewing motions to suppress identifications, the Supreme Judicial Court applies the unnecessarily suggestive standard set out above. To the extent that the reliability of the identifications is relevant, I find, based on the foregoing findings of fact, that all of the identifications were reliable. See Commonwealth v. Moon, 380 Mass. 751, 759, 405 N.E.2d 947 (1980) (rejects reliability test, but encourages Superior Court judges to make findings of reliability). Docket No. 8 at 76 (Motion Judge's Findings of Fact and Conclusions of Law at 13, n. 2) in Civil Action No. 99-10012-EFH. The findings of fact to which the motion judge refers are those quoted at length above in Part I.C.2, and to which I must defer unless they are rebutted by clear and convincing evidence under 28 U.S.C. § 2254(e)(1). Furthermore, despite petitioner's argument to the contrary, the motion judge did implicitly rehearse in his lengthy recitation of factual findings, inter alia, the reliability factors outlined in Biggers, in particular as they relate to Adrienne Castillo and Charae Chretien, the two identifying witnesses who were exposed to media images of the petitioner before identifying a photo of defendant Payne in a photographic array. Without a rebuttal, of which I find none here, the state court's finding of reliability must stand under 28 U.S.C. § 2254(e)(1). Second. The SJC, along with the motion judge, made explicit findings of non-suggestiveness based on both the absence of police manipulation and the mere exposure of media images of the defendants to two of the four identifying witnesses. See Com. v. Payne, 426 Mass. at 694, 690 N.E.2d 443; see Docket No. 8 at 73-76 (Motion Judge's Findings of Fact and Conclusions of Law). In order to assess the suggestiveness of the identifications, the motion judge reviewed the totality of the circumstances as Simmons prescribes. See Docket No. 8 at 73 (Motion Judge's Findings of Fact and Conclusions of Law) in Civil Action No. 99-10012-EFH. The motion judge's view of the totality of the circumstances included the fact that the identifying witnesses, in particular Adrienne Castillo and Charae Chretien, saw pictures of the petitioner Payne in the media before they identified him in the photographic array as one of the shooters. See Docket No. 8 at 75 (Motion Judge's Findings of Fact and Conclusions of Law) ("Both Adrienne and Charae admitted that they had seen Michael Payne's picture in the media before they identified him ...") in Civil Action No. 99-10012-EFH. The motion judge's view of the totality of the circumstances also included, however, the fact that both Adrienne Castillo and Charae Chretien identified petitioner Payne in the photographic array based on their memories of the night of the shooting and not necessarily from the pre-identification media exposure. See Docket No. 8 at 69 (Motion Judge's Findings 49 of Fact and Conclusions of Law at 13, n. 2) (Adrienne Castillo's testimony); id. at 72 (Charae Chretien's testimony). In light of the propriety of the photographic arrays displayed to the identifying witnesses and the lack of any evidence of improper manipulation on the part of the police investigators, the motion judge determined that under the totality of the circumstances the identifications were not so impermissibly suggestive as to give rise to a very substantial likelihood of irreparable misidentification. See Simmons, 390 U.S. at 384, 88 S.Ct. 967. The result of the motion judge's decision as well as the SJC's affirmance of it, is not nearly "so offensive to existing precedent, so devoid of record support, or so arbitrary, as to indicate that it is outside the universe of plausible, credible outcomes." O'Brien, 145 F.3d at 25. For these reasons, Payne's petition for writ of habeas corpus will be denied. VI. Petitioner's Request for Evidentiary Hearing Petitioner requests that this court grant him an evidentiary hearing on the reliability of the identification testimony that was admitted into evidence against him at trial. Under AEDPA's § 2254(e)(2), a habeas petitioner is entitled to an evidentiary hearing under the following circumstances. If the applicant has failed to develop the factual basis of a claim in State court proceedings, the court shall not hold an evidentiary hearing on the claim unless the applicant shows that (A) the claim relies on (i) a new rule of constitutional law, made retroactive to cases on collateral review by the Supreme Court, that was previously unavailable; or (ii) a factual predicate that could not have been previously discovered through the exercise of due diligence; and (B) the facts underlying the claim would be sufficient to establish by clear and convincing evidence that but for constitutional error, no reasonable factfinder would have found the applicant guilty of the underlying offense. 28 U.S.C. § 2254(e)(2). Both petitioner Payne and respondent agree that because petitioner developed the factual basis of his claim in the state court motion hearing, § 2254(e)(2) does not apply to him. In these circumstances, Payne has no right to an evidentiary hearing unless he can establish that one existed under the old Townsend v. Sain standard, 372 U.S. 293, 83 S.Ct. 745, 9 L.Ed.2d 770 (1963), as it was modified by Keeney v. Tamayo-Reyes, 504 U.S. 1, 112 S.Ct. 1715, 118 L.Ed.2d 318 (1992), and that this standard was not abrogated by AEDPA. At the outset, I note that the interrelation of 28 U.S.C. § 2254(e)(2) and Townsend is a matter of considerable dispute. See, e.g., Burris v. Parke, 116 F.3d 256, 258-259 (7th Cir.1997) and Williams v. Taylor, 189 F.3d 421 (4th Cir.1999) cert. granted in part by ___ U.S. ___, 120 S.Ct. 395, 145 L.Ed.2d 307 (1999) (NO. 99-6615). I conclude, however, that I need not probe that dispute because, in any event, petitioner Payne cannot satisfy the prerequisites for invoking Townsend. Townsend declares that [w]here the facts are in dispute, the federal court in habeas corpus must hold an evidentiary hearing if the habeas applicant did not receive a full and fair evidentiary hearing in a state court, either at the time of the trial or in a collateral proceeding. In other words a federal evidentiary hearing is required unless the state-court trier of fact has after a full hearing reliably found the relevant facts. Martineau v. Perrin, 601 F.2d 1201, 1207 (1st Cir.1979) citing Townsend, 372 U.S. at 312-13, 83 S.Ct. 745. In particular, Townsend mandates a hearing in the following cases If (1) the merits of the factual dispute were not resolved in the state hearing; (2) the state factual determination is not fairly supported by the record as a 50 whole; (3) the fact-finding procedure employed by the state court was not adequate to afford a full and fair hearing; (4) there is a substantial allegation of newly discovered evidence; (5) the material facts were not adequately developed at the state-court hearing; or (6) for any reason it appears that the state trier of fact did not afford the habeas applicant a full and fair fact hearing. Townsend, 372 U.S. at 313, 83 S.Ct. 745. "In all other cases ..., the holding of such a hearing is in the discretion of the district judge." Id. at 318, 83 S.Ct. 745. See also Amanullah v. Nelson, 811 F.2d 1, 16 (1st Cir.1987). (Keeney v. Tamayo-Reyes partially overruled Townsend on a raise or waive rule that is not relevant here. See 504 U.S. 1, 5, 112 S.Ct. 1715, 118 L.Ed.2d 318 (1992). See also Thompson v. Keohane, 516 U.S. 99, 109 n. 8, 116 S.Ct. 457, 133 L.Ed.2d 383.) Petitioner claims that the findings of fact that are in dispute and that would be the subject of the evidentiary hearing before me are not findings of historical fact, the kind to which a federal court applying Townsend must give deference. Instead, petitioner claims that the motion court's rulingwhether an identification is reliable despite exposure to an allegedly suggestive identification procedureis a "classic example" of a mixed question of law and fact. See Docket No. 14 at 18. I accept petitioner's point that the motion judge did apply a legal standard to a factual context found by the motion judge, and thus made a legal-factual determination the result of which was to allow the identifications at trial. Petitioner is not correct, however, in asserting that the facts to be found should I grant an evidentiary hearing, would not be "basic, primary, or historical facts: facts in the sense of a recital of external events and the credibility of their narrators ..." Townsend, 372 U.S. at 309 n. 6, 83 S.Ct. 745. These are precisely the kind of facts that the motion judge found in order to reach his legal-factual determination and they are the facts covered by the presumption of correctness under Townsend and, more stringently, under the 1996 amendments of 28 U.S.C. § 2254. See 28 U.S.C. § 2254(e)(2) (1996). The motion judge's determination as to the credibility of the testimony of eyewitnesses describing petitioner Payne as one of the shooters and as to the sequence of the events, cannot be disturbed by this federal court's review under § 2254. See 28 U.S.C. § 2254(e)(2). In this respect, the case before me is not materially like Thompson v. Keohane, 516 U.S. 99, 110-11, 116 S.Ct. 457, 133 L.Ed.2d 383 (1995) (discussing the spectrum of cases that would be and would not be entitled to the presumption of correctness under § 2254 and acknowledging that Supreme Court jurisprudence "has not charted an entirely clear course in this area"). See also Miller v. Fenton, 474 U.S. 104, 114, 106 S.Ct. 445, 88 L.Ed.2d 405 (1985) (when an "issue involves the credibility of witnesses and therefore turns largely on an evaluation of demeanor, there are compelling and familiar justifications for leaving the process of applying law to fact to the trial court"). Furthermore, because I have determined in Part V above that the result of allowing consideration at trial of evidence of the eye-witness identification is not an unreasonable application of federal law (based on the facts found after a fair and full hearing before the motion judge), I conclude that an evidentiary hearing in this federal district court to cover the same ground is not warranted. ORDER For the reasons stated in the foregoing Opinion, it is ORDERED: (1) Petitioner Marcus Edward's Petition for Writ of Habeas Corpus (Docket No. 1 in Civil Action No. 98-12000-REK) is DISMISSED; (2) Petitioner Michael Payne's Petition for Writ of Habeas Corpus (Docket No. 1 51 in Civil Action 99-10012-EFH) is DISMISSED; (3) Petitioner Michael Payne's Request for Evidentiary Hearing (Docket No. 14 in Civil Action No. 99-10012-REK) is DENIED. (4) The Clerk is directed to enter forthwith on a separate document a Final Judgment of dismissal in each of these two cases. Final Judgment For the reasons stated in the Opinion of this date, it is hereby ORDERED: This case is dismissed.	{ "pile_set_name": "FreeLaw" }
995 F.2d 1063 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.Simon MATNEY, Petitioner,v.LYNN COAL COMPANY; Director, Office of Workers'Compensation Programs, United States Department ofLabor, Respondents. No. 92-2203. United States Court of Appeals,Fourth Circuit. Argued: May 3, 1993.Decided: June 21, 1993. On Petition for Review of an Order of the Benefits Review Board. (89-969-BLA) Martin Douglas Wegbreit, Client Centered Legal Services of Southwest Virginia, Inc., Castlewood, Virginia, for Petitioner. Rodger Pitcairn, United States Department of Labor, Washington, D.C., for Respondent Mark Elliott Solomons, Arter & Hadden, Washington, D.C., for Respondent Lynn Coal Co. Margaret T. Schenck, Client Centered Legal Services of Southwest Virginia, Inc., Castlewood, Virginia, for Petitioner. 1 Marshall J. Breger, Solicitor of Labor, Donald S. Shire, Associate Solicitor, Patricia M. Nece, Counsel for Appellate Litigation, United States Department of Labor, Washington, D.C., for Respondent Director; 2 Mark J. Botti, Arter & Hadden, Washington, D.C., for Respondent Lynn Coal Co. 3 Ben.Rev.Bd. 4 AFFIRMED. 5 Before WILKINSON, Circuit Judge, HALLANAN, United States District Judge for the Southern District of West Virginia, sitting by designation, and CLARKE, Senior United States District Judge for the Eastern District of Virginia, sitting by designation. OPINION Per Curiam: 6 Simon Matney petitions us to reverse the order of the Benefits Review Board denying him black lung benefits. Finding substantial evidence to support the decision, we affirm. I. 7 Simon Matney worked as a coal miner for more than seventeen years. His last job was as a cutting machine operator for Lynn Coal Company; he left this job in 1978. In 1979, Matney applied for black lung benefits. An administrative law judge eventually heard his claim in July 1986. 8 In February 1987, the ALJ denied Matney's claim. The ALJ first found that Matney had invoked the interim presumption of disability under 20 C.F.R. § 727.203(a)(1), because four out of his twenty-nine chest x-ray readings were positive for pneumoconiosis. The ALJ then found that Lynn Coal had rebutted this presumption under § 727.203(b)(2), because Matney had still been able to perform moderate to heavy labor on his last job as a cutting machine operator. In so finding, the ALJ rejected the diagnosis of Matney's treating physician, Dr. Vinod D. Modi, that Matney was totally and permanently disabled. The ALJ found Dr. Modi's conclusion undercut by his more guarded recommendation that Matney avoid only heavy manual labor and dusty workplaces. "Every other physician of record who expressed an opinion as to the extent of the miner's disability," noted the ALJ, "concluded that he d[id] have the respiratory capacity to perform the work of a cutting machine operator." 9 Matney appealed to the Benefits Review Board. The BRB vacated both parts of the ALJ's ruling. In the first part of his ruling, the ALJ had applied Stapleton v. Westmoreland Coal Co., 785 F.2d 424 (4th Cir. 1986) (en banc), which held that one positive x-ray was sufficient to invoke the interim presumption of disability under 20 C.F.R. § 727.203(a)(1). In Mullins Coal Co. v. Director, OWCP, 484 U.S. 135 (1988), however, the Supreme Court had ruled that one positive x-ray was not always enough, and that the ALJ instead should weigh all like-kind evidence (other chest x-rays) prior to raising the presumption. In the second part of his ruling, the ALJ had found the presumption of total disability rebutted by evidence that Matney's respiratory ailment did not prevent him from doing his normal work. In Sykes v. Director, OWCP, 812 F.2d 890 (4th Cir. 1987), however, this court had ruled that a miner may be totally disabled under the black lung benefits scheme for reasons besides respiratory ailment. The BRB accordingly remanded Matney's claim to the ALJ for reconsideration in light of Mullins and Sykes . 10 On remand, the ALJ found that Matney had failed to invoke the interim presumption of disability in the first place. Of Matney's twenty-nine chest x-ray readings, only four had been positive; applying Mullins, the ALJ found the four positive readings insufficient to outweigh the twenty-five negative ones. Of the six examining, treating, or reviewing physicians, only Matney's treating physician Dr. Modi had diagnosed total disability. The ALJ had discredited this diagnosis in his first decision because of Dr. Modi's equivocal recommendation that Matney avoid only heavy labor. Since that decision, moreover, Dr. Modi had pled guilty to tax evasion. According to the information accompanying the plea agreement, Dr. Modi had been receiving kickbacks for referring black lung patients to a certain home medical equipment ("HME") vendor, but had not reported this income to the IRS. The ALJ also took notice of a November 8, 1988 article in the Charleston Daily News, which reported that 90% of Dr. Modi's patients in this scheme did not need the HME that Dr. Modi had recommended. The ALJ therefore found Dr. Modi's diagnosis "wholly untrustworthy," and rejected Matney's claim. 11 Matney appealed to the BRB a second time, but the BRB affirmed. He now petitions this court for review. II. 12 Matney's primary contention is that the ALJ erred by taking notice of the Charleston Daily News article, which the ALJ termed "self authenticating." According to Matney, there is no guarantee that a newspaper article is accurate; the ALJ was entitled to take notice only of facts in the information accompanying the plea agreement. Matney therefore asks us to vacate the ALJ's ruling and remand for yet a third hearing of Matney's claim. 13 We do not endorse the ALJ's decision to take notice of the newspaper article, but neither do we deem it reversible error. The ALJ documented ample reason besides the newspaper article to discredit Dr. Modi's diagnosis. In his first ruling, before Dr. Modi's plea agreement ever became public, the ALJ rejected his diagnosis because it equivocated on how much labor Matney could perform, and because none of the other doctors agreed that Matney was totally disabled. The ALJ did so in the course of finding that Lynn Coal had rebutted the interim presumption of total disability-a finding on which Lynn Coal bore the burden of proof. On remand, the ALJ incorporated these and all other findings of fact, and limited reconsideration to whether these facts invoked the interim presumption in light of Mullins. A fortiori, since Matney bore the burden of proof on this inquiry, Dr. Modi's diagnosis was insufficient to do so. 14 Moreover, the information that accompanied the plea agreement provides independent evidence of Dr. Modi's tax evasion and fraud. The information states that Dr. Modi concealed the receipt of approximately $54,000 from the HME vendor to whom Dr. Modi had referred black lung patients. It also states that Dr. Modi signed blank Certificates of Medical Necessity for the HME vendor to submit to the Department of Labor on behalf of black lung patients whom Dr. Modi never saw. Matney does not object to the ALJ's consideration of this evidence. In light of the totality of the evidence, it is clear the ALJ would have discredited Dr. Modi's diagnosis no matter what the newspaper article said. III. 15 In sum, there is an abundance of evidence in this case that supports the ALJ's ruling. The order of the Benefits Review Board is therefore 16 AFFIRMED.	{ "pile_set_name": "FreeLaw" }
NUMBER 13-09-053-CR COURT OF APPEALS THIRTEENTH DISTRICT OF TEXAS CORPUS CHRISTI - EDINBURG RONNIE VELA, Appellant, v. THE STATE OF TEXAS, Appellee. On appeal from the 105th District Court of Kleberg County, Texas. MEMORANDUM OPINION Before Chief Justice Valdez and Justices Garza and Vela Memorandum Opinion by Justice Vela Appellant, Ronnie Vela, was indicted for the criminal offense of theft. See Tex. Penal Code Ann. § 31.03 (Vernon 2006). On May 1, 2008, Vela entered a plea of guilty to the court and, after a bench trial, was found guilty and sentenced to two years in a state jail facility, probated for five years. On August 21, 2008, the state filed a Motion to Revoke Vela's probation, alleging that Vela had violated certain conditions of his probation. On November 21, 2008, Vela pleaded true to allegations that he had violated conditions, namely that he had used cocaine during the pendency of his probation. The trial court found the allegations true, revoked Vela's probation, and sentenced him to two years' confinement in a state jail facility. Concluding that "there are no meritorious issues for appeal," Vela's counsel has filed a brief in which he reviewed the merits, or lack thereof, of this appeal. We affirm. I. Compliance with Anders v. California Appellant's court-appointed counsel filed an Anders brief in which he has concluded that there are no appealable issues for this Court to consider. See Anders v. California, 386 U.S. 738, 744 (1967). Appellant's brief meets the requirements of Anders. See id. at 744-45; High v. State, 573 S.W.2d 807, 812 (Tex. Crim. App. [Panel Op.] 1978); see also In re Schulman, 252 S.W.3d 403, 407 n.9 (Tex. Crim. App. 2008) ("In Texas, an Anders brief need not specifically advance 'arguable' points of error if counsel finds none, but it must provide record references to the facts and procedural history and set out pertinent legal authorities.") (citing Hawkins v. State, 112 S.W.3d 340, 343-44 (Tex. App.-Corpus Christi 2003, no pet.)); Stafford v. State, 813 S.W.2d 503, 510 n.3 (Tex. Crim. App. 1991). In compliance with Anders, following his review of the Court's file and the transcripts, his research, and his correspondence with appellant, counsel presented a professional evaluation of the record including, among other things, a review of grand jury proceedings, pre-trial motions, research and investigation, competency, sentencing, right to present evidence during the guilt/innocence and punishment stages, and right to appeal. See Anders, 386 U.S. at 744; Currie v. State, 516 S.W.2d 684, 684 (Tex. Crim. App. 1974); see also High, 573 S.W.2d at 812. Counsel has informed this Court that he has reviewed the appellate record and concluded there are no arguable grounds for reversal. He has also informed this Court that he provided appellant with a copy of the transcripts in his case, a copy of the brief, and notified appellant of his right to review the record and to file a pro se response to counsel's brief and motion to withdraw within thirty days. (1) See In re Schulman, 252 S.W.3d at 409 n.23. More than an adequate period of time has passed, and appellant has not filed a pro se response. Id. at 409; see also Anders, 386 U.S. at 744-45; Stafford, 813 at 509 (Tex. Crim. App. 1991); High, 573 S.W.2d at 813. II. Independent Review The United States Supreme Court advised appellate courts that upon receiving a "frivolous appeal" brief, they must conduct "a full examination of all the proceedings to decide whether the case is wholly frivolous." Penson v. Ohio, 488 U.S. 75, 80 (1988); see Ybarra v. State, 93 S.W.3d 922, 926 (Tex. App.-Corpus Christi 2003, no pet.). Accordingly, we have carefully reviewed the record and have found nothing that would arguably support an appeal. See Bledsoe v. State, 178 S.W.3d 824, 826 (Tex. Crim. App. 2005); Stafford, 813 S.W.2d at 509. We agree with counsel that the appeal is wholly frivolous and without merit. See Bledsoe, 178 S.W.3d at 827-28 ("Due to the nature of Anders briefs, by indicating in the opinion that it considered the issues raised in the briefs and reviewed the record for reversible error but found none, the court of appeals met the requirements of Texas Rule of Appellate Procedure 47.1."). III. Conclusion The judgment of the trial court is affirmed. In accordance with Anders, appellant's attorney has asked this Court for permission to withdraw as counsel for appellant. See Anders, 386 U.S. at 744; see also In re Schulman, 252 S.W.3d at 408 n.17 (citing Jeffery v. State, 903 S.W.2d 776, 779-80 (Tex. App.-Dallas 1995, no pet.) (noting that "[i]f an attorney believes the appeal is frivolous, he must withdraw from representing the appellant. To withdraw from representation, the appointed attorney must file a motion to withdraw accompanied by a brief showing the appellate court that the appeal is frivolous.") (citations omitted)). We grant his motion to withdraw. Within five days of the date of this Court's opinion, counsel is ordered to send a copy of the opinion and judgment to appellant and to advise appellant of his right to file a petition for discretionary review. (2) See Tex. R. App. P. 48.4; see also In re Schulman, 252 S.W.3d at 412 n.35; Ex parte Owens, 206 S.W.3d 670, 673 (Tex. Crim. App. 2006). ROSE VELA Justice Do not publish. Tex. R. App. P. 47.2(b). Memorandum Opinion delivered and filed this 28th day of May, 2009. 1. The Texas Court of Criminal Appeals has held that "the pro se response need not comply with the rules of appellate procedure in order to be considered. Rather, the response should identify for the court those issues which the indigent appellant believes the court should consider in deciding whether the case presents any meritorious issues." In re Schulman, 252 S.W.3d 403, 409 n.23 (Tex. Crim. App. 2008) (quoting Wilson v. State, 955 S.W.2d 693, 696-97 (Tex. App.-Waco 1997, no pet.)). 2. No substitute counsel will be appointed. Should appellant wish to seek further review of this case by the Texas Court of Criminal Appeals, he must either retain an attorney to file a petition for discretionary review or file a pro se petition for discretionary review. Any petition for discretionary review must be filed within thirty days from the date of either this opinion or the last timely motion for rehearing that was overruled by this court. See Tex. R. App. P. 68.2. Any petition for discretionary review must be filed with this court, after which it will be forwarded to the Texas Court of Criminal Appeals. See Tex. R. App. P. 68.3; 68.7. Any petition for discretionary review should comply with the requirements of Rule 68.4 of the Texas Rules of Appellate Procedure. See Tex. R. App. P. 68.4.	{ "pile_set_name": "FreeLaw" }
558 F.2d 1034 U. S.v.Lingle No. 76-1465 United States Court of Appeals, Seventh Circuit 6/23/77 1 E.D.Ill. AFFIRMED	{ "pile_set_name": "FreeLaw" }
775 F.Supp. 1215 (1991) ZUREK EXPRESS, INC., Plaintiff, v. INTERMETRO INDUSTRIES CORPORATION, Defendant. No. Civ. 3-90-613. United States District Court, D. Minnesota, Third Division. October 29, 1991. Thomas E. Wolff and Dawn M. Parsons, Snelling, Christensen & Briant, Edina, Minn., for plaintiff. Brent W. Primus, Minneapolis, Minn., and William Augello, Augello, Pezold & Hirschmann, Huntington, N.Y., for defendant. MEMORANDUM OPINION AND ORDER DEVITT, District Judge. Introduction Plaintiff Zurek Express, Inc. (Zurek) commenced this action against defendant Intermetro Industries Corp. (Intermetro) to recover $130,771.02 in freight undercharges it alleges are owed by Intermetro. The 1216 cause is before the court upon motions of both parties. Intermetro moves the court to refer this matter to the Interstate Commerce Commission (ICC) for a determination of the reasonableness of the filed or tariff rates which Zurek seeks to impose upon Intermetro and stay all proceedings pending ICC review. Zurek moves the court to enter summary judgment in its favor. For the reasons set forth below, the court will grant Intermetro's motion to refer this matter to the ICC for a determination of the reasonableness of the tariff rates sought to be charged by Zurek. The court will deny Zurek's summary judgment motion. Background Intermetro manufactures materials handling equipment, shelving, racks, and related products. Zurek is a motor common carrier and provided transportation services to Intermetro from approximately June, 1987 until June, 1990. All tolled, this action concerns some 768 shipments of goods transported for Intermetro by Zurek. At the time the parties began negotiating upon terms of a shipment agreement, Zurek participated in the Middlewest Motor Freight Tariff Bureau MWB 550 (Bureau) class rates. Zurek and Intermetro agreed that Intermetro would receive a thirty five percent discount from the Bureau rates.[1] It was Zurek's practice to offer other shippers a similar discount. Consistent with Intermetro's request, Zurek charged Intermetro the Bureau rate for each shipment. At the end of each month, Zurek tallied the amount charged to Intermetro for freight shipments and issued Intermetro a check for thirty five percent of the total amount charged[2]. After agreeing upon terms of shipment, Zurek provided Intermetro with copies of a tariff page embodying the terms of the discount provision. Zurek was to have filed a copy of the tariff page with the ICC but failed to do so. Discussion The court first addresses Intermetro's motion to refer this action to the ICC for a determination of the reasonableness of the tariff rates which Zurek contends apply here. In defense of this action, Intermetro alleges the tariff rates are unreasonable. Intermetro argues that the ICC has primary jurisdiction to determine the reasonableness of a carrier's rates and, relying upon several decisions from this district, asserts that referral to the ICC is necessary here. Zurek responds that Intermetro's allegations of rate unreasonableness are not a defense in a freight undercharge action and that Intermetro has failed to put forth any evidence tending to show the filed rates are unreasonable. Zurek attempts to distinguish the parochial cases relied upon by Intermetro. The court may readily dispose of Zurek's contention that allegations of rate unreasonableness do not constitute a defense to a freight undercharge action. In Sharm Express, Inc. v. 7/24 Freight Sales, Inc., 122 B.R. 999, 1004 (D.Minn.1991), Judge MacLaughlin ruled that rate unreasonableness may be raised as a defense in a freight undercharge collection action. Judge MacLaughlin's opinion is thorough and well-reasoned, and the court follows it. See also Sharm Express, Inc. v. Twin Modal, Inc., No. 4-91-CV-32, slip op. at 5, 1991 WL 156573 (D.Minn. August 7, 1991) (Rosenbaum, J.); Certified Carriers of America, Inc. v. Norwesco, Inc., No. 4-90-CV-156, slip op. at 8-10, 1990 WL 284504 (D.Minn. December 11, 1990) (Doty, J.). The court next considers whether reference of this action to the ICC under the doctrine of primary jurisdiction is appropriate. Primary jurisdiction "is a common law doctrine used to coordinate administrative and judicial decisionmaking." Red Lake Band of Chippewa Indians v. Barlow, 846 F.2d 474, 476 (8th Cir.1988). The doctrine should be invoked when "the reasons for the existence of the doctrine are present and ... the purposes it serves will be aided by its application in the particular litigation." United States v. McDonnell Douglas Corp., 751 F.2d 220, 224 (8th Cir.1984) (quoting United States v. Western 1217 Pacific Railroad Co., 352 U.S. 59, 64, 77 S.Ct. 161, 165, 1 L.Ed.2d 126 (1956)). In particular, the court should invoke the doctrine of primary jurisdiction if the expertise of the agency would contribute meaningfully toward securing uniform and consistent regulation of business. Western Pacific Railroad, 352 U.S. at 64-65, 77 S.Ct. at 165-166 (quoting Far East Conference v. United States, 342 U.S. 570, 574-75, 72 S.Ct. 492, 494-95, 96 L.Ed. 576). With respect to the specific issue of motor carrier tariff reasonableness, our Eighth Circuit Court of Appeals has intimated that referral to the ICC is entirely appropriate. See Inman Freight Systems, Inc. v. Olin Corp., 807 F.2d 117, 119 (8th Cir.1986). Three recent decisions within the District of Minnesota also shed light upon this issue and hold uniformly that the focal point of the inquiry is whether the party challenging reasonableness has presented sufficient evidence of rate unreasonableness to warrant referral. In 7/24 Freight, supra, the defendant's sole evidence of rate unreasonableness was that the tariffs sought to be charged by the plaintiff exceeded the rates charged by other carriers by fifty percent. Id., 122 B.R. at 1005. Judge MacLaughlin held: the technical question of whether plaintiff has introduced sufficient evidence of unreasonableness is a matter left to the expertise of the ICC, at least in the first instance, and the Court will not preclude defendant from raising the defense before the ICC based on the state of its proof at this point. Id. at 1005. Evidently, Judge MacLaughlin based his decision, in part, upon the fact that plaintiff had not enjoyed the opportunity to conduct discovery on the issue of rate reasonableness. Id. at 1004-05. In a subsequent decision, Sharm Express, Inc. v. LaSalle-Deitch Co., Inc., 127 B.R. 620 (D.Minn.1991), Judge Murphy held that a shipper who (1) does not allege rate unreasonableness during an initial referral to the ICC and (2) fails entirely to present evidence to support an allegation of rate unreasonableness other than to argue the challenged rate is "unreasonable on its face," is not entitled to ICC referral. Id. at 622-24. In Judge Murphy's view: Allowing [defendant] to resist withdrawal of reference from the ICC by a mere incantation of the doctrine of primary jurisdiction would be tantamount to allowing the doctrine to become "an abstraction to be called into operation at the whim of the pleader." Western Pacific, supra, 352 U.S. at 69, 77 S.Ct. at 168. Id. 127 B.R. at 624. Finally, in Twin Modal, supra, Judge Rosenbaum declared that affidavit testimony tending to show a significant disparity between the tariff rates sought to be charged and the rates charged by other carriers is sufficient to justify referral to the ICC. Id. at 6; see also Canny Trucking, Inc. v. Anitec Image Corp., 89-CV-1115, 1991 WL 117793 (N.D.N.Y. June 24, 1991) (where evidence presented more than "bald conclusory assertions" of rate unreasonableness, referral to ICC appropriate). Here, Intermetro submits the affidavit testimony of Bruce D. Hocum (Hocum), an expert in the field of motor carrier rates. In his affidavit, Hocum concludes the tariff rate sought to be applied by Zurek is unreasonable. Hocum reaches this conclusion by comparing the rates originally negotiated between Zurek and Intermetro with the tariff rates Intermetro seeks to have applied here. Hocum also examined the rates which Zurek charged other shippers similarly situated to Intermetro. This case is thus similar to 7/24 Freight and Twin Modal and distinguishable from Sharm Express as Intermetro has presented probative evidence of rate unreasonableness. The court will, therefore, refer this matter to the ICC for a determination of whether the Bureau rates Zurek seeks to apply are reasonable. ORDER Based upon the foregoing, and all the files and arguments of counsel, IT IS ORDERED that: 1. Plaintiff Zurek Express, Inc.'s motion for summary judgment is DENIED; *1218 2. This matter is referred to the Interstate Commerce Commission for a determination of the rate reasonableness issue; 3. All proceedings in this action before this court are stayed pending resolution of the issues which have been referred to the Interstate Commerce Commission. NOTES [1] The discount was increased to forty five percent in April, 1989. [2] The parties referred to this as a "loading allowance."	{ "pile_set_name": "FreeLaw" }
J. S06014/15 NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37 IN THE INTEREST OF: M.H.G., A MINOR : IN THE SUPERIOR COURT OF : PENNSYLVANIA : APPEAL OF: L.A.L., MOTHER : No. 813 EDA 2014 Appeal from the Decree entered February 5, 2014 In the Court of Common Pleas of Philadelphia County, Family Court, at No(s): CP-51-AP000222-2013; FID #51-FN-002419-2011 IN THE INTEREST OF: M.C.G., A MINOR : IN THE SUPERIOR COURT OF : PENNSYLVANIA : APPEAL OF: L.A.L., MOTHER : No. 814 EDA 2014 Appeal from the Decree entered February 5, 2014 In the Court of Common Pleas of Philadelphia County, Family Court, at No(s): CP-51-AP000223-2013; FID #51-FN-002419-2011 BEFORE: BENDER, P.J.E., LAZARUS, and FITZGERALD,* JJ. DISSENTING STATEMENT BY FITZGERALD, J.: FILED MARCH 05, 2015 I agree with the majority that the trial court did not abuse its discretion in finding grounds for termination under 23 Pa.C.S. § 2511(a)(2). However, I respectfully disagree with the majority’s conclusions pertaining to Subsection 2511(b). As the majority states, there was “little, if any” evidence presented about the bond between Mother and the Children. My review of the termination hearing transcript reveals the following. DHS social work service manager Sakinah Jones testified positively about the * Former Justice specially assigned to the Superior Court. J. S06014/15 bond between Children and the foster parents, and stated that termination of Mother’s parental rights would not be detrimental to the Children. See N.T., 2/5/14, at 37, 39-40, 46. However, there was no question posed to Ms. Jones, and no testimony from her, about the bond between Mother and the Children. The sole evidence about the interaction between Mother and the Children during visits was Ms. Jones’ testimony that the visits “appear to be appropriate in a supervised setting.” Id. at 53. While Mother testified at the hearing, she likewise did not testify about any bond with the Children. In its opinion, the trial court’s sole discussion under Subsection (b) was the Children’s bond with their foster parents, and Ms. Jones’ testimony that permanency and adoption were in the Children’s best interests. Id. at 5. However, the opinion was silent as to whether the Children had a bond with Mother. In light of the foregoing, I would remand for the court to conduct further evidentiary hearings and enter findings of fact and conclusion of law on this issue. See In re of K.Z.S., 946 A.2d 753, 760 (Pa. Super. 2008) (stating court: (1) must discern nature and status of parent-child bond, paying close attention to effect on child of permanently severing bond; (2) should also consider importance to child of continuity of relationships; and (3) must consider whether natural parental bond exists between child and parent, and whether termination would destroy existing, necessary and beneficial relationship). -2-	{ "pile_set_name": "FreeLaw" }
765 A.2d 831 (2001) Lucille M. COUTURE et al. v. PAWTUCKET CREDIT UNION. No. 99-400-Appeal. Supreme Court of Rhode Island. January 29, 2001. 832 Present WEISBERGER, C.J., LEDERBERG, BOURCIER, FLANDERS, and GOLDBERG, JJ. Joseph P. Carroll, for plaintiff. Matthew T. Oliverio, John T. Gannon, Pawtucket, for defendant. OPINION FLANDERS, Justice. Does a creditor's contractual right to apply deposited funds against a debt owed to it survive the debtor's bankruptcy? More particularly, under an agreement with its account holders, can a bank apply the funds deposited in the holders' joint accounts against the balance due on a holder's defaulted mortgage loan, notwithstanding the discharge of the holder's mortgage debt in bankruptcy? For the reasons set off below, we answer these questions in the affirmative. Facts and Travel On November 15, 1986, Donald E. Couture (debtor), and Madeline C. Girard executed a promissory note and mortgage in the principal amount of $150,000 (mortgage loan). Thereafter, the creditor, defendant Pawtucket Credit Union (PCU or bank), acquired this mortgage loan. As of March 27, 1995, debtor and his parents, Lucille and Normand Couture (collectively, the Coutures) were joint-account holders on four time-deposit accounts (accounts) at PCU. The debtor's parents knew that their son was indebted to PCU through the note and mortgage when they added his name to the accounts on that date. By signing the signature cards for each of the four accounts, each account holder agreed to PCU's Rules and Regulations governing the accounts, including a clause that said "[PCU]may, at its discretion, apply any or all of the funds represented by the certificate against any indebtedness in default which may be owing to it by the [account] holder as an offset against such debt." (The setoff clause.) In March 1996, debtor defaulted on the mortgage loan, prompting PCU, in May 1996, to send debtor a written notice of default. Receiving no response, it then placed an administrative freeze on the accounts, but it did not yet exercise its right of setoff. Thereafter, on November 6, 1996, PCU received a notice that debtor had filed for bankruptcy. Although PCU 833 maintained the administrative freeze on the accounts during the pendency of the bankruptcy, it never applied to the bankruptcy court for permission to set off the funds in the accounts against the balance due on the defaulted mortgage loan. Moreover, debtor never listed the accounts as assets of his estate in the bankruptcy proceeding. The bankruptcy court, however, in response to PCU's request, allowed it to foreclose on the defaulted mortgage loan. On February 6, 1997, the bankruptcy court entered a notice of discharge in the debtor's bankruptcy proceeding, thereby relieving debtor of any personal liability on the mortgage loan. A month later, PCU completed a foreclosure sale with respect to the property securing debtor's mortgage loan. After applying the sale proceeds to the loan balance, PCU determined that the foreclosure sale resulted in a deficiency, leaving an unpaid mortgage-loan balance that exceeded the amount of funds held in the accounts. On March 10, 1997, PCU notified debtor's bankruptcy trustee that it would be setting off the funds in the accounts against the unpaid balance due on the mortgage loan. The trustee neither responded to PCU's letter nor expressed any interest in reopening the bankruptcy proceeding to adjudicate the validity of PCU's interest with respect to the accounts. On June 10, 1997, invoking its authority under the setoff clause, PCU applied the funds in the accounts against the deficiency owing on the debtor's mortgage loan. Thereafter, the Coutures filed suit, contending that the bank was notentitled to set off the funds in the accounts against the discharged mortgage debt. In due course, the Superior Court denied PCU's motion for summary judgment and granted the Coutures' motion for summary judgment. After entry of final judgment, PCU appealed to this Court. Did PCU possess the right to set off the mortgage-loan deficiency against the funds held in the accounts after the bankruptcy court had discharged debtor from his debts? The Coutures contend that PCU had no authority to do so because on February 6, 1997, the bankruptcy court had discharged the underlying mortgage-loan debt. They argue that, pursuant to the language of the setoff clause, a debt must be "owing" at the time the bank applies the funds of the accounts as an offset against such debt. Here, they contend, the bankruptcy court already had discharged the mortgage-loan debt when PCU attempted to exercise its right of setoff. PCU, however, counters that it was entitled to exercise its contractual right of setoff against the accounts because, as a matter of law, its setoff right survived the debtor's bankruptcy. For the reasons explained below, we agree with PCU and hold that PCU's setoff right survived debtor's bankruptcy. Because "a bankruptcy discharge extinguishes only one mode of enforcing a claim â namely, an action against the debtor in personam," Johnson v. Home State Bank, 501 U.S. 78, 84, 111 S.Ct. 2150, 2154, 115 L.Ed.2d 66, 75 (1991), it leaves intact other modes of enforcement, including, without limitation, an action against the debtor in rem, id., as well as a creditor's pre-bankruptcy right to set off deposited funds against a mature debt owing to the creditor. See, e.g., In re Wiegand, 199 B.R. 639, 641-42 (W.D.Mich.1996) (holding that the purpose of a bankruptcy discharge was not disserved by allowing a creditor to offset a debt that was discharged in bankruptcy). Here, we hold, PCU's setoff mode for enforcing its claim against debtor for the unpaid balance due onthe mortgage loan remained intact to the extent of the funds deposited in the accounts, notwithstanding the discharge in bankruptcy of the underlying mortgage debt. Analysis I Validity of Setoff Right The United States Bankruptcy Code (code) does not create a right of 834 setoff; rather, it is a creature of either state or federal non-bankruptcy law. See Citizens Bank of Maryland v. Strumpf, 516 U.S. 16, 18, 116 S.Ct. 286, 289, 133 L.Ed.2d 258, 262 (1995). Therefore, before we consider whether PCU's right to set off its deficiency claim against the funds in the Coutures' accounts survived the debtor's bankruptcy, we first must determine whether PCU possessed such a right as a matter of non-bankruptcy law. In Rhode Island, the "rights and obligations of a bank and its depositors in regard to funds on deposit are governed by the terms of the contract entered into at the time the relationship is established." Paradis v. Greater Providence Deposit Corp., 651 A.2d 738, 740 (R.I.1994). Moreover, the general non-bankruptcy rule in this jurisdiction is that "a bank is entitled to a setoff for repayment of a matured debt owed by a depositor." Brill v. Citizens Trust Co., 492 A.2d 1215, 1216 (R.I.1985). Thus, in Paradis, we held that "when the joint depositors accepted and retained a passbook containing rules and regulations, such rules and regulations constituted the depositors' contract with the bank." 651 A.2d at 740. Here, when the Coutures signed the signature cards for each of the accounts, they accepted the rules and regulations of the accounts printed on the last page of each passbook they retained and were thereby contractually bound to these terms. Pursuant to this contract, PCU had the right to "apply any or all of the funds represented by the certificate against any indebtedness in default which may be owingto it by the [account] holder as an offset against such debt." Therefore in March 1996, when debtor defaulted on his mortgage, PCU had a contractual right to set off the "indebtedness in default" against the funds deposited in the accounts. We recognize that some depositors open joint bank accounts for estate planning or convenience purposes and that in doing so they may expose themselves unwittingly to the type of setoff liability that the Coutures assumed in this case. As the dissent notes, in certain circumstances the enforceability of such a provision may be subject to various equitable defenses, including the doctrine of unconscionability â especially if the depositors' agreement can be characterized as an adhesion contract. But in this case the Coutures have failed to challenge the setoff clause on these equitable grounds at any point in these proceedings. Most tellingly, they failed to raise any adhesion-contract issues in any of their pleadings, in their response to the summary-judgment motion, or in any of their arguments before us. On the contrary, they argued that, pursuant to the "clear and unambiguous" language of the account agreement, the bank's setoff right could not be exercised because the bankruptcy court had discharged the underlying debt. Therefore, the Coutures have not preserved this issue for our review. See Joseph R. Weisberger, Rhode Island Appellate Practice Rule 16.5 at 89 (1993) ("no issues may be raised on appeal unless such issues were presented to the trial court in such a posture as to alert the trial justice to the question being raised"). Accordingly, we have no occasion to consider whether this type of setoff provision in an account agreement may be so unclear, inconspicuous, or unconscionable that it should not be enforced against depositors like the Coutures. See generally Paul Laurino, Whose Money is it Anyway? A Bank's Right to Setoff Against Joint Accounts, 1996 Colum. Bus. L. Rev. 61, 62 (1996) (concluding that courts should be less generous inenforcing maximum setoff agreements, thereby encouraging banks "to make information about the various types of joint accounts more accessible and comprehensible to customers"). Indeed, because the Coutures have failed to raise this issue at any time, we are of the opinion that it would be inappropriate to remand this case to the Superior Court so that it can undertake an initial examination of this unraised and unargued issue and its ramifications. See, e.g., Higgins 835 v. New Balance Athletic Shoe, Inc., 194 F.3d 252, 258, 259-61 (1st Cir.1999) (explaining that, although an appellate court reviews summary judgments on a de novo basis, it should not reverse such an order by relying upon arguments that the nonmoving party failed to raise before the trial court, let alone on appeal). Unlike the dissent, we prefer to wait until a party appropriately raises this potential defense, instead of unilaterally surfacing this issue on our own â on behalf of just one side to a controversy â when no party has briefed this question, argued this issue, or asked us to consider this point. As the dissent itself acknowledges, "the issue of the contract of adhesion was not raised in Paradis. There is no question that the holding in Paradis, save for the existence of an adhesion contract, would be controlling in the case at bar." But here too, as in Paradis, the issue of contract adhesion was not raised. Thus, Paradis controls and the setoff clause is valid and enforceable. II Effect of Bankruptcy on the Setoff Right Having determined that, at the time of default, PCU had a contractual right to set off the debtor's mortgage loan deficiency against the funds in the accounts, we turn to the issue of whether the debtor's later bankruptcy affected this right. Section 553(a) of 11 U.S.C., the Bankruptcy Code, preserves, protects, and limits setoff rights in bankruptcy cases, as follows: "Except as otherwise provided in this section and in sections 362 and 363 of this title, this title [bankruptcy] does not affect any right of a creditor to offset a mutual debt owing by such creditor to the debtor that arose before the commencement of the case under this title against a claim of such creditor against the debtor that arose before the commencement of the case." (Emphasis added.) Under 11 U.S.C. § 553(a), federal bankruptcy law recognizes and preserves a creditor's setoff right when four conditions exist: "(1) the creditor holds a `claim' against the debtor that arose before the commencement of the [bankruptcy] case; (2) the creditor owes a `debt' to the debtor that also arose before the commencement of the case; (3) the claim and debt are `mutual'; and (4) the claim and debt are each valid and enforceable." 5 Lawrence P. King, Collier on Bankruptcy ķ 553.01[1] at 553-7 (15th rev. ed.2000). In this case, we hold that PCU's setoff claim satisfied all the requirements of 11 U.S.C. § 553(a). PCU held a valid and enforceable claim[1] against debtor when debtor failed to make payments and defaulted on his mortgage loan in March 1996 (almost seven months before the filing of debtor's bankruptcy petition). According to the rules and regulations of the accounts, each of the several signatories possessed joint "ownership" of the accounts and each enjoyed the unilateral authority to withdraw all the funds therein without first obtaining the consent from any other signatory.[2] Thus, because debtor possessed an "ownership" interest in the accounts, PCU "owed" him and the Coutures the obligation to repay the amounts on deposit. Finally, because debtor possessed an "ownership" interest 836 in the accounts and was liable on the defaulted mortgage loan, "both obligations [were] held by the same parties, in the same capacity" and were therefore "mutual" when the debtor defaulted in repaying the mortgage loan. In re Selma Apparel Corp., 155 B.R. 241, 243 (Bankr.S.D.Ala. 1992) (holding that even though the code does not define the term "mutual," "mutuality has been found [when] both obligations are held by the same parties, in the same capacity"). Accordingly, a debtor's bankruptcy "does not affect any right of a creditor to offset a mutual debt." 11 U.S.C. § 553(a). Hence, PCU was entitled to hold the funds in the accounts during the bankruptcy proceedings and to set off the mortgage-loan deficiency against these funds, notwithstanding the discharge of debtor's underlying mortgage-loan obligation in the bankruptcy. III Preservation of Setoff Right From Discharge We also hold that, under 11 U.S.C. § 553 of the code, PCU was not required to file a proof of claim to protect its setoff right from discharge in bankruptcy. Neither § 553 nor any other provision of the code requires a creditor to file a proof of claim to protect its setoff right. On the contrary, 11 U.S.C. § 553(a) expressly provides that nothing in the code affects a creditor's right to exercise its setoff rights, except for §§ 362, 363 and § 553 itself (which make no mention of the need for filing any proofs of claim). Although 11 U.S.C. § 501(a) states that a creditor "may file a proof of claim," (emphasis added), its history confirms that this is not a mandatory provision: "This subsection [§ 501(a)] is permissive only, and does not require filing of a proof of claim by any creditor. It permits filing where some purpose would be served, such as where a claim that appears on a list * * was incorrectly stated or listed as disputed, contingent, or unliquidated, [or] where a creditor with a lien is undersecured and asserts a claim for the balance of the debt owed him. * * * In other instances, such as in no-asset liquidation cases, * * * filing of a proof of claim may simply not be necessary." S. Rep. No. 95-989, at 61 (1978), reprinted in 1978 U.S.C.C.A.N. 5787, 5847. (Emphasis added.) Here, PCU would have been required to file a proof of claim only if it had wanted to share (to the extent of its deficiency claim) in any general unsecured assets remaining in the debtor's bankruptcy estate. But this Chapter 7 bankruptcy was a "no-asset liquidation case[]" in which no assets remained in the debtor's estate for distribution to unsecured creditors. Thus, "filing a proof of claim [would] simply not [have been] necessary" for a creditor like PCU because there would be no assets remaining in the debtor's estate from which a distribution could be made. Even assuming that debtor's bankruptcy had not been a "no-asset liquidation case[]," PCU's failure to file a proof of claim would have resulted only in the loss of its claim to a pro rata share of any assets remaining in the estate to which it was entitled as a general unsecured creditor â but not in the loss of its secured claim or setoff right. And even though PCU's contractual setoff right "is not quite the same thing as a mortgage or a security interest. * * * [T]here is little to distinguish between a creditor's status [in a bankruptcy proceeding] arising from a right of setoff and its status arising from some other type of security entitlement." 4 Lawrence P. King, Collier on Bankruptcy, ķ 506.03[1][b] at 506-17 (15th rev. ed. 2000) (quoting In re Elcona Homes Corp., 863 F.2d 483, 485 (7th Cir.1988) ("The only sense we can make of the rule is that it recognizes that the creditor who owes his debtor money is like a secured creditor; indeed, the mutual debts, to the extent equal, secure each party against the other's default.")). Indeed, a right of setoff has been described 837 as a "security of the most perfect kind." In re Yale Express System, Inc., 362 F.2d 111, 114 (2d Cir.1966). As a result, courts have held that 11 U.S.C. § 553 takes precedence over § 524(a)(2) (the discharge provision) in a Chapter 7 case so that "a right of setoff * * survives a discharge just as much as a claim secured by a mortgage or any other lien." In re Thompson, 182 B.R. 140, 154 (Bankr. E.D. Va.1995); see also In re Buckenmaier, 127 B.R. 233, 237 (B.A.P. 9th Cir.1991) (holding that 11 U.S.C. § 553 takes precedence over § 524(a)(2) in Chapter 7 case); Posey v. United States Department of the Treasury, 156 B.R. 910, 915 (W.D.N.Y. 1993) (same); In re Runnels, 134 B.R. 562, 565 (Bankr.E.D.Tex.1991) (same). The Tenth Circuit Federal Court of Appeals has followed this reasoning and held that "filing of a proof of claim is not a prerequisite to asserting a right to setoff under 11 U.S.C. § 553" and that "a discharged debt may be setoff upon compliance with the terms and conditions stated in section 553" â regardless of whether a proof of claim has been filed or not. In re Davidovich, 901 F.2d 1533, 1539 (10th Cir. 1990). Observing that "it would also `be unfair to deny a creditor the right to recover an established obligation while requiring the creditor to fully satisfy a debt to a debtor,'" id., the Tenth Circuit held that "a creditor's right to setoff was a universally recognized right grounded in principles of fairness that was not, with a few limited exceptions, affected by the Bankruptcy Code." Id. Finally, we agree with the Wiegand court that by allowing PCU to exercise its setoff right "[t]he primary purpose of discharge in bankruptcy is not disserved." In re Wiegand, 199 B.R. at 642. "[T]he primary purpose of discharge is to prohibit post-bankruptcy debt collection." Id. As was the situation in Wiegand, the creditor in this case (PCU) is not seeking to collect a debt from debtor but rather "merely offset[ting] its obligation to [debtor] with that of [debtor's] to [PCU]." Id. Conclusion For the foregoing reasons, we conclude that PCU's right to set off the funds in the accounts against the debtor's unpaid mortgage-loan balance survived the debtor's discharge in bankruptcy. Thus, PCU was entitled to summary judgment as a matter of law. Accordingly, we sustain PCU's appeal, vacate the Superior Court's summary judgment in favor of the Coutures, and remand this case to the Superior Court for entry of summary judgment in favor of PCU. WEISBERGER, Chief Justice concurring and dissenting with whom Justice Bourcier joins. I concur with the majority with respect to their analysis of the Federal Bankruptcy Code as it may affect a creditor's right of setoff. I am in agreement that setoff is a matter of state law. However, I think that we should be somewhat more skeptical of the right of a bank, by means of an adhesion contract, to seize the life savings of an elderly couple who made the mistake of placing their son's name on a joint account. See Donatelli v. Fleet National Bank, 692 A.2d 339, 340 (R.I. 1997) (mem.) ("the general rule that joint bank accounts may be seized by creditors of one of the depositors is limited by the caveat that the creditor may reach only those funds in the account which the debtor depositor equitably owns") (citing Joint Bank Account as Subject to Attachment, Garnishment, or Execution by Creditor of One of the Joint Depositors, 11 A.L.R.3d 1465, 1473 (1967)). It is true that the order in Donatelli distinguished our opinion in Paradis v. Greater Providence Deposit Corp., 651 A.2d 738, 740 (R.I.1994), on the ground that Paradis involved a depository contract to which both the depositors and defendant bank were parties. Donatelli, 692 A.2d at 340. Indeed, that was true in the case at bar. However, the issue of the contract of adhesion was not raised in Paradis. 838 There is no question that the holding in Paradis, save for the existence of an adhesion contract, would be controlling in the case at bar. Nevertheless, on reflection, I am of the opinion that the draconian power of a bank or credit union to seize the life savings of parents, who may add the name of a son or daughter to an account to which he or she has contributed nothing, is a subject that should give us pause before blindly following the doctrine of Paradis in every case. I believe that the general statement, quoted by the majority ("PCU may at its discretion, apply any or all of the funds represented by the certificate against any indebtedness in default which may be owing to it by the [account] holder as an offset against such debt"), does not necessarily give an adequate warning to parents of the disastrous results that may occur from their adding the name of a noncontributing child to their joint account. It would not be unduly harsh to require a bank to set forth in bold type that the indebtedness of any individual, who is a joint holder of an account, may be set off against the entire account, regardless of whether he or she has contributed anything to it. Meanwhile, in the case at bar, I believe that the adequacy of the warning that was given by the setoff clause constitutes an issue of fact that should not be decided on summary judgment. In the insurance context, we have considered the effects of contracts of adhesion. In Pickering v. American Employers Insurance Co., 109 R.I. 143, 282 A.2d 584 (1971), we observed that "[a]n insurance contract is not the end result of the give-and-take that goes on at a bargaining table. * * [A]n insurance policy is not a true consensual arrangement but one that is available to the premium-paying customer on a take-it-or-leave-it basis. This being the case * * * it is most appropriate that a carrier not be permitted to declare a forfeiture of * * * bargained-for protection unless there has been a breach of the notice provisions and the likelihood that the carrier has beenprejudiced thereby." Id. at 159-60, 282 A.2d at 593 (citing Cooper v. Government Employees Insurance Co., 237 A.2d 870 (N.J.1968)). (Emphasis added.) The United States Supreme Court has also considered the effects of contracts of adhesion. See Carnival Cruise Lines, Inc. v. Shute, 499 U.S. 585, 111 S.Ct. 1522, 113 L.Ed.2d 622 (1991) (Stevens, J., dissenting) ("Ordinarily, one who signs an agreement without full knowledge of its terms might be held to assume the risk that he has entered a one-sided bargain. But when a party of little bargaining power, and hence little real choice, signs a commercially unreasonable contract with little or no knowledge of its terms, it is hardly likely that his consent, or even an objective manifestation of his consent, was ever given to all of the terms. In such a case the usual rule that the terms of the agreement are not to be questioned should be abandoned and the court should consider whether the terms of the contract are so unfair that enforcement should be withheld."). Id. at 600-01, 111 S.Ct. at 1531, 113 L.Ed.2d at 636 (quoting Williams v. Walker-Thomas Furniture Co., 350 F.2d 445, 449-50 (D.C. Cir.1965)); see generally Friedrich Kessler, Contracts of Adhesion â Some Thoughts About Freedom of Contract, 43 Colum.L.Rev. 629, 632 (1943) ("Standard contracts are typically used by enterprises with strong bargaining power. The weaker party, in need of the goods or services, is frequently not in a position to shop around for better terms, either because the author of the standard contract has a monopoly (natural or artificial) or because all competitors use the same clauses. * * * Thus, the standardized contracts are frequently contracts of adhesion; they are ā prendre ou ā laisser."). As the majority indicates, the bank has given itself a contractual right to allow any holder of joint account status to withdraw the entire sum. However, this would not, and indeed should not, prevent the parents from seeking equitable relief *839 to prevent such a withdrawal if such relief was sought before the withdrawal occurred. Nevertheless, I believe we should take a closer look at the bank's relationship to the joint depositors in this instance. This case came to us based upon a summary judgment in favor of the plaintiffs. I believe that summary judgment was not an appropriate remedy. I would remand this case to the Superior Court for a determination of the precise contribution that the son made to this joint account and also to determine whether his name was placed on this account as a matter of convenience. We have held that a joint account may be utilized as a means of bestowing a right of survivorship upon a child or other family member without the hindrance of the requirement of the statute of wills. See Robinson v. Delfino, 710 A.2d 154, 161 (R.I.1998) ("the opening of a joint bank account wherein survivorship rights are specifically provided for is conclusive evidence of the intention to transfer to the survivor an immediate in praesenti joint beneficial possessory ownership right in the balance of the account remaining after the death of the depositor, absent evidence of fraud, undue influence, duress, or lack of mental capacity"). We have never held that there may not be equitable restraints upon a person whose name is on a joint account but who has contributed nothing to it to withdraw the entire sum or any portion without the permission of the donors. I do not contend that such an individual would be inhibited from withdrawing the entire sum from the bank or credit union without any liability on behalf of the bank or credit union. However, I do not consider it at all impossible for the donors to seek equitable relief to avoid such a withdrawal before it has actually taken place, as sometimes occurs in a family law context. Consequently, I am of the opinion that the credit union should be subject to the equitable defenses of the parents against the credit union's right of setoff, the contract of adhesion to the contrary notwithstanding. Little or no warning may have been given to depositors who added a noncontributing member to theirjoint account. They certainly took the chance that the noncontributing member would withdraw the funds without their permission and that the bank would not be liable therefor. However, I believe it is a significant question of fact, concerning whether they were adequately warned in a situation, such as presented in the case at bar, that their son's indebtedness might be setoff against them without ceremony or even consideration to their supervening equitable interest in the account. I would remand this case to the Superior Court for a trial on the merits to determine what, if any, contribution the son made to this account, and whether the credit union had warned, in decisive terms, the mother and father of their potential liability in respect to the son's indebtedness. In the event that the son made no contribution, and in the event that no specific warning other than boilerplate language was given to the elder Coutures, I would deny the right of setoff on equitable grounds. My concern for the credit union and its financial integrity is not sufficiently great to prevent the plaintiffs in this case from presenting equitable defenses to this right of setoff, in the same manner that they might present them in litigation with their son if they sought to prevent his withdrawing the entire deposit or some portion thereof, or against another creditor, as in Donatelli, supra. NOTES [1] A "claim" is defined by the code as a "right to payment, whether or not such right is reduced to judgment, liquidated, unliquidated, fixed, contingent, matured, unmatured, disputed, undisputed, legal, equitable, secured, or unsecured." 11 U.S.C. § 101(5)(A). A claim is considered to have arisen before the commencement of the debtor's bankruptcy if all the elements of liability arose before the filing of the bankruptcy petition. See United States v. Gerth, 991 F.2d 1428, 1433 (8th Cir.1993). [2] The rules and regulations provide as follows: "Ownership: Certificates in more than one name are payable to either or to the survivor."	{ "pile_set_name": "FreeLaw" }
NOTICE: NOT FOR PUBLICATION. UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION DOES NOT CREATE LEGAL PRECEDENT AND MAY NOT BE CITED EXCEPT AS AUTHORIZED. IN THE ARIZONA COURT OF APPEALS DIVISION ONE ANGELA GEE, Petitioner/Appellant, v. CITY OF PHOENIX; CITY OF PHOENIX CIVIL SERVICE BOARD; BRUCE MEYERSON; CRAIG STEBLAY; ROBERT LORD, Respondents/Appellees. No. 1 CA-CV 15-0618 FILED 11-3-2016 Appeal from the Superior Court in Maricopa County No. LC 2015-000107-001 The Honorable Karen A. Mullins, Judge AFFIRMED COUNSEL Kirtley Wells Law Office, Phoenix By Patricia A. Kirtley Counsel for Petitioner/Appellant Phoenix City Attorney’s Office, Phoenix By Heidi E. Gilbert Counsel for Respondent/Appellee, City of Phoenix Gammage & Burnham, P.L.C., Phoenix By Richard K. Mahrle Respondents/Appellees, Phoenix Civil Service Board, Bruce E. Meyerson, Craig Steblay, Robert J. Lord MEMORANDUM DECISION Judge Patricia A. Orozco delivered the decision of the Court, in which Presiding Judge Andrew W. Gould and Judge Peter B. Swann joined. O R O Z C O, Judge: ¶1 Angela Gee appeals from the superior court’s order declining to accept jurisdiction of her special action petition. For the following reasons, we affirm. FACTS AND PROCEDURAL BACKGROUND ¶2 In October 2013, Gee and her then employer, the City of Phoenix (City), entered into a “Last Chance Employment Agreement” (LCEA). Therein, Gee acknowledged violating several personnel rules that could have resulted in termination. In resolution of those violations, the LCEA provided for “reduced discipline” encompassing the “violations occurring between August 19, 2013 and October 15, 2013.” In lieu of termination, Gee agreed to: “fully comply with and follow” all City Personnel Rules, “waive her right to a Civil Service Board and appeal,” and “any other remedy” arising from the disciplinary action or circumstances surrounding it. Gee also confirmed her understanding that failure to improve her record of unscheduled absences could result in termination. In consideration of this resolution, Gee agreed to a forty-hour suspension. The terms of LCEA were to remain in effect until October 2018. ¶3 Gee’s suspension began October 22, 2013. Her notice of suspension provided that she must “comply with the Department’s leave management guidelines.” Therein, Gee was instructed that she must not accrue “any unscheduled non-FMLA absences between October 19, 2013 and August 26, 2014,” to be considered compliant with the LCEA. 2 GEE v. PHOENIX et al. Decision of the Court ¶4 In September 2014, the City informed Gee that termination had been recommended following “an administrative investigation surrounding [her] unauthorized absence from work [and] failure to follow [C]ity policies.” The City terminated Gee in September 2014 for violating the City’s attendance policy and City Personnel Rule 21b3.1 Gee appealed the decision, and a hearing officer took testimony from both Gee and the City in January 2015. ¶5 After reviewing the City’s policies and the LCEA, the hearing officer found that since Gee entered into the LCEA she “accumulated an unscheduled absence in the form of 2 tardies,” “two unscheduled absences . . . in June,” “an unscheduled absence for an early departure from work in July, and she accumulated an unscheduled absence from August 28 until September 4, 2014, for an additional five (5) unscheduled absences within the rolling 12-month period.” ¶6 The hearing officer further determined disciplinary action was warranted based on his findings that Gee violated Rules 21b3 and 21b18.2 In his report, the hearing officer also rejected Gee’s argument the City’s calculation of her absences “should be disregarded.” The hearing officer concluded that “[n]o competent evidence exists in the record . . . on which to conclude that any of [Gee]’s unscheduled absences . . . should be disregarded or minimized in determining [Gee]’s compliance with the management leave guidelines.” However, the hearing officer did not make any specific finding regarding Gee’s compliance with the City’s attendance policy. The report recommended that the City of Phoenix Civil Service Board (Board) sustain Gee’s dismissal. 1 City Personnel Rule 21b3 authorizes the City’s Civil Service Board (Board) to “uphold the action of the appointing authority in disciplining an employee” when the “employee has violated any lawful or official regulation or order, or failed to obey any lawful and reasonable direction given him by his supervisor, when such violation or failure to obey amounts to insubordination or serious breach of discipline which may reasonably be expected to result in lower morale in the organization, or to result in loss, inconvenience, or injury to the City or the public” as grounds for upholding employee discipline. 2 City Personnel Rule 21b18 authorizes the Board to uphold discipline when “the employee has been guilty of any other conduct of equal gravity to the reasons enumerated in 21b1 through 21b17.” 3 GEE v. PHOENIX et al. Decision of the Court ¶7 Gee’s appeal proceeded to the Board. After reviewing the recommendations of the hearing officer and considering arguments from Gee’s counsel, the Board sustained Gee’s dismissal. The Board found that, in addition to violating City Personnel Rules 21b3 and 21b18, Gee also violated Rule 21b8.3 ¶8 Gee then filed a complaint for special action in superior court, requesting that “the decision of the [Board] be reversed.” In response, the City filed a Motion to Decline Jurisdiction, arguing special action jurisdiction was not appropriate because Gee failed to present any basis entitling her to such relief. The superior court agreed and Gee timely appealed. We have jurisdiction pursuant to Article 6, Section 9, of the Arizona Constitution, Arizona Revised Statutes (A.R.S.) section 12-120.21.A.4 (West 2016),4 and Arizona Rule of Procedure for Special Actions 8.(a). DISCUSSION ¶9 “The decision to accept or reject special action jurisdiction is highly discretionary.” Am. Fam. Mut. Ins. Co. v. Grant, 222 Ariz. 507, 511, ¶ 9 (App. 2009). We review a superior court’s declination of special action jurisdiction for an abuse of that discretion. Files v. Bernal, 200 Ariz. 64, 65, ¶ 2 (App. 2001). A court abuses its discretion when “the record fails to provide substantial support for its decision or the court commits an error of law in reaching the decision.” Id. A denial of special action relief “will be upheld for any valid reason disclosed by the record.” State ex rel. Dean v. City Ct. of City of Tucson, 123 Ariz. 189, 192 (App. 1979). When the superior court declines jurisdiction of a special action without addressing the merits, we likewise do not reach the merits on appeal. State v. Johnson, 184 Ariz. 521, 523 (App. 1994). Rather, “the sole issue before us [is] whether that court abused its discretion when it declined to accept jurisdiction.” Id. (citation omitted); see also Stapert v. Ariz. Bd. of Psychologist Exam’rs, 210 Ariz. 177, 182, ¶ 22 (App. 2005). The burden of proving whether special action jurisdiction is warranted lies with the party requesting relief. See Bd. of Cty. 3 City Personnel Rule 21b8 permits the Board to uphold disciplinary action when “the employee has been absent without leave, contrary to these Rules, or has failed to report after leave of absence has expired, or after such leave of absence has been disapproved or revoked and cancelled by the appointing authority.” 4 We cite the current version of applicable statutes when no revisions material to this decision have since occurred. 4 GEE v. PHOENIX et al. Decision of the Court Supervisors, Santa Cruz Cty. v. Rio Rico Volunteer Fire Dist., 119 Ariz. 361, 364 (App. 1978). ¶10 Gee alleges the Board’s decision was “arbitrary, capricious and contrary to law” and contends special action jurisdiction is appropriate because the hearing officer and the Board “exceeded their jurisdiction, made errors of law and abused their discretion.” Specifically, Gee argues the superior court erred by failing to: properly interpret the terms of the LCEA, determine whether the City violated its own policies in its calculation of her absences, and determine whether the actions of the Board were arbitrary and capricious because it improperly interpreted the terms of the LCEA. Gee further contends there is no competent evidence supporting the calculation of absences or failure to improve her attendance record. ¶11 The City argues special action jurisdiction was not appropriate because Gee’s termination was supported by the record and she failed to show relief was necessary. We agree. ¶12 Our consideration and review of the record on appeal is limited to whether there is “substantial support” for the superior court’s denial of special action jurisdiction. Files, 200 Ariz. at 65-66, ¶ 2. Here, the court declined jurisdiction “[f]or the reasons stated in [the City]’s Motion [to Decline Jurisdiction] and Reply;” that Gee failed to show extraordinary relief was appropriate and the record supported her termination. Gee challenges the hearing officer and the Board’s calculation of her absences as misinterpretation of the LCEA, essentially asking us to reconsider and reweigh evidence, so as to reach a different conclusion in her favor. This is a function we do not perform on appeal. See Culpepper v. State, 187 Ariz. 431, 436 (App. 1996) (“In reviewing factual determinations by an administrative agency, this court does not reweigh the evidence or substitute its judgment for that of the agency.”). Additionally, neither the hearing officer nor the Board affirmatively determined whether Gee violated the attendance policy. Instead, findings were made that Gee violated City Personnel Rules 21b3, 21b8, and 21b18, and that the resulting discipline imposed was authorized. ¶13 Gee also contends the LCEA’s resolution language, which provides that it operates as a “full and complete resolution” of her violations between August 19, 2013 and October 15, 2013, precludes consideration of any attendance issues prior to October 15, 2013. However, a calculation or consideration of Gee’s alleged absences, interpretation of 5 GEE v. PHOENIX et al. Decision of the Court the LCEA, and application of the City’s attendance policy is not necessary to reach the hearing officer and the Board’s conclusions. ¶14 According to Rule 21b, “[f]ailure to meet such standards of conduct and work performance for any of the following listed reasons . . . shall be considered sufficient by the Board to uphold the action of the appointing authority in disciplining an employee.” (Emphasis added.). Such conduct includes: failure to obey any lawful and reasonable direction given him by his supervisor, when such violation or failure to obey amounts to insubordination or serious breach of discipline which may reasonably be expected to result in lower morale in the organization, or to result in loss, inconvenience, or injury to the City or the public. City Personnel Rule 21b3. ¶15 The City’s leave policy provides that “[e]xcessive unscheduled absences from work can be disruptive and place a burden on co-workers and supervisors who must cover the absent employee.” ¶16 Through the LCEA, Gee agreed to “fully comply and follow all City . . . [r]ules and policies, and follow all directives.” Gee’s suspension notice provided explicit instructions not to accrue “any unscheduled non-FMLA absences between October 19, 2013 and August 26, 2014” to comply with leave guidelines. Gee admits to at least one unscheduled absence between October 19, 2013 and August 15, 2014. ¶17 Evidence in the record supports the conclusion that Gee violated City Personnel Rule 21b3, as found by both the hearing officer and the Board. Because any finding under Rule 21b “shall be considered sufficient . . . to uphold the action,” we need not discuss the finding that Gee violated any other City Personnel Rule.5 Consequently, we cannot say the superior court abused its discretion in declining special action review. CONCLUSION ¶18 For the foregoing reasons, we affirm the superior court’s denial of special action jurisdiction. Gee requests attorney fees and costs on appeal; because she is not the prevailing party, we deny her request. As the 5 Both the hearing officer and the Board found Gee violated 21b3. 6 GEE v. PHOENIX et al. Decision of the Court prevailing party, the City is entitled to costs upon compliance with ARCAP 21. AMY M. WOOD • Clerk of the Court FILED: AA 7	{ "pile_set_name": "FreeLaw" }
827 F.2d 718 Fed. Sec. L. Rep. P 93,383, 9 Fed.R.Serv.3d 276 Suzanne KIRKPATRICK; Dorothy D. Casler and Charles H.Lindsey, on behalf of themselves and all otherssimilarly situated, Plaintiffs-Appellants,v.J.C. BRADFORD & CO., Defendant-Appellee.Glenn T. SANDERS on behalf of himself and all otherssimilarly situated, and Leslie D. Sanders,Plaintiffs-Appellants,v.ROBINSON HUMPHREY/AMERICAN EXPRESS, INC., andShearson/American Express, Inc., Defendants-Appellees.Tommy E. PARKER, as custodian for Kimberly M. PARKER andJames L. Smith, on behalf of themselves and allothers similarly situated, Plaintiffs-Appellants,v.PAINE WEBBER GROUP, INC., Defendant-Appellee. Nos. 86-8624 to 86-8626. United States Court of Appeals,Eleventh Circuit. Sept. 15, 1987.Rehearings and Rehearings En Banc Denied Oct. 21, 1987. Glenn Delk, Churchill & Ferguson, Atlanta, Ga., Kenneth A. Jacobsen, Richard D. Greenfield, Haverford, Pa., for plaintiffs-appellants in Nos. 86-8624, 86-8625. Ames Davis, Robert E. Boston, Nashville, Tenn., for defendant-appellee in No. 86-8624. Lloyd S. Clareman, Harvey D. Myerson, Bradley C. Twedt, Timothy J. Carey, Finley, Kumble, Wagner, Heine, Underberg, Manley, Myerson & Casey, New York City, Peter J. Anderson, Mack Young, Peterson Young Self & Asselin, Atlanta, Ga., for defendants-appellees in No. 86-8625. Brenda M. Nelson, Greenfield & Chimicles, Kenneth A. Jacobsen, Richard D. Greenfield, Philadelphia, Pa., for plaintiffs-appellants in No. 86-8626. Richard M. Kirby, Hansell & Post, Atlanta, Ga., Robert E. Zimet, Skadden, Arpts, Slate, Meaglher & Flom, New York City, for defendant-appellee in No. 86-8626. Appeals from the United States District Court for the Northern District of Georgia. Before VANCE and KRAVITCH, Circuit Judges, and BROWN, Senior Circuit Judge. KRAVITCH, Circuit Judge: 1 Plaintiffs in these companion cases filed certified interlocutory appeals pursuant to 28 U.S.C. Sec. 1292(b) challenging the district court's denial of class certification under Rule 23 of the Federal Rules of Civil Procedure. The district court denied class certification in each case on the alternative grounds that the named plaintiffs were not adequate class representatives as required by Fed.R.Civ.P. 23(a)(4) and that individual questions of fact predominated over common questions of law and fact in contravention of Fed.R.Civ.P. 23(b)(3). Concluding that the district court applied erroneous legal standards, we reverse and remand for further consideration. I. BACKGROUND 2 These are a few of the many cases arising out of the virtual collapse in 1984 of the Petro-Lewis oil and natural gas investment funds. From 1970 to 1984, about 180,000 people purchased more than $3 billion worth of Petro-Lewis securities and limited partnerships. When the price of oil and gas declined in 1981 and 1982, Petro-Lewis began borrowing funds to pay partnership distributions, to service its debt, and to promote the sale of additional programs. In February 1984, revealing for the first time that it was in dire financial straits, Petro-Lewis announced that it would implement a series of drastic economy measures, including cutting partnership distributions by as much as 50 per cent and selling between one quarter and one third of its reserves. Numerous lawsuits followed. 3 In In re Petro-Lewis Securities Litigation, [1984-85 Transfer Binder], Fed.Sec.L.Rep. p 91,899 (D.Colo.1984), the U.S. District Court for the district of Colorado approved a settlement of eleven consolidated class suits brought under various provisions of the federal securities laws against the directors and certain corporate entities of the Petro-Lewis organization. Under the terms of the settlement, the participating class members agreed to release the defendants and all Petro-Lewis subsidiaries in return for the formation of a royalty trust and a settlement fund valued at $23.5 million. The settlement agreement expressly provided that the plaintiff class members retained the right to file suit against any nondefendants, including broker-dealers of Petro-Lewis securities and limited partnerships. 4 In these cases, plaintiffs allege that the actions of the defendant brokerage firms and individuals in selling and promoting interests in Petro-Lewis violated sections 11 and 12(2) of the Securities Act of 1933, 15 U.S.C. Secs. 77k, 77l (2), section 10 of the Securities Exchange Act of 1934, 15 U.S.C. Sec. 78j, Rule 10b-5 promulgated thereunder, 17 C.F.R. Sec. 240.10b-5, and various common law and statutory obligations under state law.1 Claiming to represent classes of plaintiffs who, between January 1, 1981 to February 6, 1984, purchased, reinvested in, or otherwise acquired Petro-Lewis limited partnership interests from the defendant firms, the plaintiffs alleged that the defendants knowingly or recklessly participated with Petro-Lewis in disseminating materially misleading information regarding Petro-Lewis' financial condition and failed to provide other information that would have made the statements not misleading. 5 After discovery and hearings, the district court issued an order and an amended order denying certification of the classes under Rule 23 of the Federal Rules of Civil Procedure. Although the court determined that each suit satisfied the class action prerequisites of Rule 23(a)(1), (2), and (3), the court denied certification on the ground that the named plaintiffs were not adequate class representatives as required by Rule 23(a)(4). The basis for this determination was that the named plaintiffs did not demonstrate that they would pursue the litigation with sufficient vigor to protect the interests of the class. As an alternative ground of decision, the court held that individual questions of law and fact outweighed common questions and thus that the actions did not satisfy the standards of Rule 23(b)(3). Concluding that its ruling was based upon determinations of law as to which there may be substantial ground for difference of opinion and that an immediate appeal from the denial of class certification would materially advance the ultimate determination of the actions, the court certified its order for an interlocutory appeal pursuant to 28 U.S.C. Sec. 1292(b). We accepted jurisdiction. See id. 6 II. RULE 23(b)(3): PREDOMINANCE OF COMMON OR INDIVIDUAL QUESTIONS 7 The district court's conclusion that individual questions predominate over common questions is based directly on the court's interpretation of the substance of the plaintiffs' claims. Consequently, we will consider first that aspect of the court's denial of class certification. 8 In holding that certification was improper under Rule 23(b)(3),2 the court concluded that common questions of law and fact in the 10(b) and 10b-5 claims were dominated by individual questions of reliance on the part of the particular purchasers, statutes of limitations in each state in which there may be class members, and arbitration agreements in many of the purchase contracts. The court viewed the state law claims to be inappropriate for class action treatment because liability would depend upon the substantive law of the different states. Finally, the court refused to consider certifying classes limited to the section 11 and 12(2) claims after concluding that the 10(b) and state law claims were the dominant claims asserted in the complaints. A. Section 10(b) and Rule 10b-5 9 The complaints allege that the defendants violated section 10(b) and Rule 10b-5 by engaging in two related but different courses of conduct. First, the complaints contend that the defendants participated with Petro-Lewis in disseminating misleading prospectuses and in engaging in a standardized promotion by the individual brokers. Second, the plaintiffs claim that the firms continued to sell and promote Petro-Lewis shares despite the firms' awareness or reckless disregard of Petro-Lewis' severe financial difficulties. Based on these allegations, the plaintiffs assert three theories of liability under which common issues of law and fact necessarily would outweigh individual issues. They first contend that their claims concern primarily acts of omission and thus that reliance on the part of individual purchasers should be presumed under the rule of Affiliated Ute Citizens v. United States, 406 U.S. 128, 92 S.Ct. 1456, 31 L.Ed.2d 741 (1975). Second, they argue that the claims fall under the fraud-on-the-market theory adopted by our predecessor court in Shores v. Sklar, 647 F.2d 462 (5th Cir. May 1981) (en banc), cert. denied, 459 U.S. 1102, 103 S.Ct. 722, 74 L.Ed.2d 949 (1983).3 Finally, they argue that the allegations involve a common course of conduct toward all defendants, and thus that any issues of individual reliance could not predominate over common questions of facts. See e.g., Kennedy v. Tallant, 710 F.2d 711 (11th Cir.1983). 10 The district court rejected each of these theories. The court found the characterization of the claims as involving primarily omissions to be precluded by the interpretation in Huddleston v. Herman & McLean, 640 F.2d 534 (5th Cir. Unit A March 1981), aff'd in part and rev'd in part on other grounds, 459 U.S. 375, 103 S.Ct. 683, 74 L.Ed.2d 548 (1983), and Cavalier Carpets v. Caylor, 746 F.2d 749 (11th Cir.1984), of the requirements for an omissions case under Affiliated Ute. The court rejected the fraud-on-the-market theory as insufficiently supported by the pleadings or the evidence proffered by the plaintiffs. Finally, the court refused class action treatment under the course of conduct theory based on the court's determination that the plaintiffs' allegations involve primarily individualized oral representations rather than a common scheme by the defendants toward the plaintiff purchasers. 11 We agree with the district court that under the precedent of this circuit the plaintiffs' complaints cannot be properly characterized as omissions cases under the standards of Affiliated Ute. Here, as in Cavalier Carpets, supra, and Huddleston, supra, the complaints indicate that "[t]he defendants did not stand mute in the face of a duty to disclose as did the defendants in Affiliated Ute." Cavalier Carpet, 746 F.2d at 749 n. 22 (quoting Huddleston, 640 F.2d at 548). Rather, as in those cases, the allegations contend that the defendants "undertook ... to disclose relevant information ... now alleged to contain certain misstatements of fact and to fail to contain other facts necessary to make the statements made, in light of the circumstances, not misleading." Id. Consequently, the district court properly concluded that the complaints at most allege mixed claims of misrepresentations and omissions and thus that Affiliated Ute 's presumption of reliance does not apply. 12 We cannot agree, however, with the court's rejection of the fraud-on-the-market theory as a basis for class action treatment. In Shores v. Sklar, supra, the former Fifth Circuit sitting en banc held that, in fraud claims asserted under Rules 10b-5(1) and (3), the reliance element of Rule 10b-5 may be satisfied by proof that the plaintiff relied on the integrity of the market rather than on specific misrepresentations by the defendants. Under Shores, reliance may be established by proof that securities not traded on the open market could not have been issued but for a fraudulent scheme by the defendants. 647 F.2d at 469; cf. Lipton v. Documation, Inc., 734 F.2d 740, 747 (11th Cir.1984), cert. denied, 469 U.S. 1132, 105 S.Ct. 814, 83 L.Ed.2d 807 (1985) (adopting fraud-on-the-market theory in context of securities traded in open market). Here, consistent with Shores, plaintiffs alleged that the Petro-Lewis shares, which were not traded on the open market, could not have been marketed but for the defendants' fraud. 13 In rejecting this claim as improper for class treatment, the court relied solely on its conclusion that the plaintiffs' allegations lacked evidentiary support. Despite the court's assertions to the contrary, this determination was an inappropriate inquiry into the merits of the plaintiffs' claims. Certainly, as the court noted in its order, a court may look beyond the allegations of the complaint in determining whether a motion for class certification should be granted. General Telephone Co. of Southwest v. Falcon, 457 U.S. 147, 160, 102 S.Ct. 2364, 2372, 72 L.Ed.2d 740 (1982); Love v. Turlington, 733 F.2d 1562, 1564 (11th Cir.1984). Indeed, it is often necessary for a district court to consider, for example, a deposition of a named plaintiff to determine whether Rule 23(a)'s commonality and typicality requirements are met. See, e.g., Falcon, supra; Nelson v. U.S. Steel Corp., 709 F.2d 675, 679-80 (11th Cir.1983). Here, however, the court's rejection of the fraud-on-the-market theory was based upon nothing other than the court's assessment of the plaintiffs' likelihood of success on the claims. This is an improper basis for deciding the propriety of a class action. E.g., Eisen v. Carlisle & Jacquelin, 417 U.S. 156, 177-78, 94 S.Ct. 2140, 2152-53, 40 L.Ed.2d 732 (1974); Nelson, 709 F.2d at 679. 14 Nor can the court's rejection of the fraud-on-the-market theory be upheld under the rationale that fraud-on-the-market claims are improper for class treatment where, as here, the evidence indicates that the named plaintiffs relied on the advice of their brokers rather than solely on the integrity of the market. As the defendants note, several district courts have denied class certification for fraud-on-the-market claims where evidence indicates that the named plaintiffs may in fact have relied on factors other than the market's integrity. These cases, however, generally have concerned fraud-on-the-market claims involving securities traded in an open market. See Masri v. Wakefield, 106 F.R.D. 322, 325 (D.Colo.1984); Seiler v. E.F. Hutton & Co., 102 F.R.D. 880, 890 (D.N.J.1984); McNichols v. Loeb Rhoades, 97 F.R.D. 331, 334 (N.D.Ill.1982). But see Shores v. Sklar, [current] Fed.Sec.L.Rep. (CCH) p 92, 874 (N.D.Ala. July 30, 1986) (on remand, denying class certification of fraud-on-the-market claim involving security not openly traded). That version of the fraud-on-the-market theory focuses on the plaintiffs' reliance on the integrity of an open and developed market to set a price accurately reflecting the security's value. See Lipton v. Documation, 734 F.2d at 743. The issue of reliance on an open market thus turns on a matter of degree--the price of the security--and not, as in Shores, the absolute question of whether the security was worthy of being issued. 15 Because the Petro-Lewis shares were not traded on the open market, we need not now consider the appropriateness of class certification of traditional fraud-on-the-market claims involving securities that are openly traded. We conclude, however, that where as here, a complaint alleges that a security not traded on the open market could not have been issued but for the fraud of the defendants, class action treatment is not precluded by the possibility that some purchasers, including the named plaintiffs, might have relied on factors other than the integrity of the market. 16 Shores did not hold, as the defendants contend, that recovery is possible under a fraud-on-the-market claim only when a claimant proves reliance on the integrity of the market to the exclusion of all other factors. Rather, Shores was based on the premise that "[t]he securities laws allow an investor to rely on the integrity of the market to the extent that the securities it offers to him for purchase are entitled to be in the marketplace." 647 F.2d at 471. Consequently, where a security could not have been issued but for a fraudulent scheme, the fact that the investor may have relied on other factors in deciding to purchase that security at a particular price does not minimize the essential fact that the purchaser relied on the market's integrity to ensure that the security was worthy of being issued. Indeed, as the court noted in Shores, under a theory that the defendants' fraud caused securities to be issued, "it would have availed [the plaintiff] nothing to have read the [allegedly misleading] Offering Circular." Id. at 470-71. A Shores fraud-on-the-market claim thus is especially suited for class action treatment, as it makes virtually irrelevant the possibility that the various purchasers may have relied on different representations regarding the desirability of the particular security in question: all have relied on the integrity of the market in the but-for sense required by Shores.4 17 We conclude for similar reasons that the district court also improperly found that the plaintiffs' 10b-5(2) misrepresentation claims were not suited for class treatment. The basis for the court's denial of class certification of the misrepresentation claims was the court's conclusion that the claims involved primarily oral representations and thus would present individual issues of reliance. To arrive at this conclusion, the court focused on deposition evidence indicating that the named plaintiffs relied not so much on prospectuses and other written materials as on the recommendations of their individual brokers. The court further found that the plaintiffs had uncovered no evidence to show that their particular brokers had attended the Petro-Lewis sales sessions or explicitly followed the standardized sales pitch. 18 Contrary to the court's construction of the claims, however, the complaints alleged that the defendant brokerage firms and individual officers engaged in a common course of conduct to misrepresent, by affirmative acts and by omission, the financial condition of Petro-Lewis. See, e.g., Kennedy v. Tallant, 710 F.2d at 711. Neither the complaints nor the deposition testimony relied upon by the district court indicate that any oral representations to the named plaintiffs varied materially from the misleading information alleged to have been disseminated generally as a result of the defendants' common schemes. See id.; cf. Simon v. Merrill Lynch, Pierce, Fenner and Smith, Inc., 482 F.2d 880, 883 (5th Cir.1973) ("If there is any material variation in the representations made or in the degrees of reliance thereupon, a fraud case may be unsuited for treatment as a class action."). Consequently, the possibility that the named plaintiffs or other potential class members may have obtained the allegedly misleading information via their individual brokers rather than through widely distributed written information cannot transform the allegations of the complaints into claims concerning primarily questions of individual reliance. The claims essentially involve allegations that the defendants "committed the same unlawful acts in the same method against the entire class." Kennedy v. Tallant, 710 F.2d at 717. 19 As in any 10b-5(2) misrepresentation claim, each potential class member must prove reliance on some form of the allegedly misleading information in order to recover. See, e.g., Shores v. Sklar, 647 F.2d at 468. In view of the overwhelming number of common factual and legal issues presented by plaintiffs' misrepresentation claims, however, the mere presence of the factual issue of individual reliance could not render the claims unsuitable for class treatment. Here, as in Kennedy v. Tallant, each of the complaints alleges "a single conspiracy and fraudulent scheme against a large number of individuals" and thus is "particularly appropriate for class action." 710 F.2d at 718. Moreover, given the numerous and substantial common issues presented by both the fraud-on-the-market and the misrepresentation claims, the common questions in these cases cannot legitimately be considered subordinate to the individual questions presented by the different state statutes of limitations that may be applicable or by the arbitration agreements contained in some of the purchasers' contracts.5 "Rule 23 does not require that all the questions of law and fact raised by the dispute be common." Cox v. American Cast Iron Pipe Co., 784 F.2d 1546, 1557 (11th Cir.), cert. denied, --- U.S. ----, 107 S.Ct. 274, 93 L.Ed.2d 250 (1986). 20 In sum, we conclude that as a result of the district court's erroneous analysis of the fraud-on-the-market claims and its mischaracterization of the misrepresentations claims, the court incorrectly determined that individual issues predominated over common issues. Contrary to the court's conclusions, these claims involve common issues that clearly overwhelm the individual issues that may be present. Consequently, "[s]eparate actions by each of the class members would be repetitive, wasteful, and an extraordinary burden on the courts." Kennedy v. Tallant, 710 F.2d at 718. The district court thus abused its discretion in ruling that the requirements of Rule 23(b)(3) were not satisfied in this case. See, e.g., Cox v. American Cast Iron Pipe Co., 784 F.2d at 1557-58. B. State Law Claims 21 In concluding that the state law claims failed to satisfy the requirements of Rule 23(b)(3), the district court reasoned that the differing standards of liability required by the laws of the various states would render class action treatment unmanageable. We agree with the district court that the state law claims would require application of the standards of liability of the state in which each purchase was transacted.6 The district court thus did not abuse its discretion in denying class certification on these claims. See, e.g., Simon v. Merrill Lynch, Pierce, Fenner and Smith, Inc., 482 F.2d at 883. C. Section 11 and 12(2) Claims 22 In explaining its denial of class certification of the section 11 and 12(2) claims, the district court stated that it "did not address" these claims individually because to separate these claims from the Rule 10b-5 and state law claims would be "unduly burdensome" on the court. The court consequently denied class certification of the Rule 11 and 12(2) claims based upon its conclusion that the 10b-5 and the state law claims did not meet the requirements of Rule 23(b)(3). In view of our determination that the court erroneously ruled that the 10b-5 claims did not meet the requirements of Rule 23(b)(3), the court must of course reconsider its decision regarding the section 11 and 12(2) claims. 23 Independent of our decision on the 10b-5 claims, however, we conclude that the court erred in failing to consider separately the appropriateness of the class action treatment of the section 11 and 12(2) claims. Although there is some overlap between section 10(b) and sections 11 and 12(2), the provisions "involve distinct causes of action and were intended to address different types of wrongdoing." Herman & McLean v. Huddleston, 459 U.S. 375, 103 S.Ct. 683, 687, 688, 74 L.Ed.2d 548 (1983). The failure of the district court to give separate consideration to class action certification of these distinct claims thus could serve neither the securities laws' purpose of protecting investors, see, e.g., id., 103 S.Ct. at 687, nor Rule 23's purpose of protecting the courts from needlessly repetitious litigation, see, e.g., Kennedy v. Tallant, 710 F.2d at 718. By failing to consider these claims separately, the court abused its discretion. III. ADEQUATE CLASS REPRESENTATION 24 Having concluded that the district court's ruling on the requirements of Rule 23(b)(3) constituted an abuse of the court's discretion, we must address the court's alternative holding that the named plaintiffs in each of these cases did not satisfy the adequate representation requirement of Rule 23(a)(4) because they failed to demonstrate sufficient "vigor" to prosecute a class suit. 25 Among the prerequisites to the maintenance of a class action is the requirement of Rule 23(a)(4) that the class representatives "will fairly and adequately protect the interests of the class." The purpose of this requirement, as of many other of Rule 23's procedural mandates, is to protect the legal rights of absent class members. Because all members of the class are bound by the res judicata effect of the judgment, a principal factor in determining the appropriateness of class certification is "the forthrightness and vigor with which the representative party can be expected to assert and defend the interests of the members of the class." Mersay v. First Republic Corp., 43 F.R.D. 465, 470 (S.D.N.Y.1968); see also Shatzman v. Talley, 91 F.R.D. 270, 273 (N.D.Ga.1981) (insufficiency of funds to prosecute suit indicates the "vigor with which the case will be pursued"); Dolgow v. Anderson, 43 F.R.D. 472, 494 (E.D.N.Y.1968) (court "must be assured that 'the representatives [will] put up a real fight' " (quoting J. Chafee, Some Problems in Equity 231 (1950)), rev'd on other grounds, 438 F.2d 825 (2d Cir.1971); cf. Falcon, 457 U.S. at 161, 102 S.Ct. at 2372. 26 The inquiry into whether named plaintiffs will represent the potential class with sufficient vigor to satisfy the adequacy requirement of Rule 23(a)(4) most often has been described to "involve[ ] questions of whether plaintiffs' counsel are qualified, experienced, and generally able to conduct the proposed litigation and of whether plaintiffs have interests antagonistic to those of the rest of the class." Griffin v. Carlin, 755 F.2d 1516, 1532 (11th Cir.1985). Even where these two requirements are satisfied, however, named plaintiffs might not qualify as adequate class representatives because they do not possess the personal characteristics and integrity necessary to fulfill the fiduciary role of class representative. See, e.g., Kline v. Wolf, 702 F.2d 400, 402-03 (2d Cir.1983); Armour v. City of Anniston, 89 F.R.D. 331, 332 (D.C.Ala.1980), aff'd, 654 F.2d 382 (5th Cir. Unit B Aug. 1981); 7A C. Wright, A. Miller and M. Kane, Federal Practice and Procedure, Civil 2d Sec. 1766 at pp. 308-10. 27 For similar reasons, some courts have found, as did the district court here, that Rule 23(a)(4) was not satisfied where the named plaintiffs demonstrated insufficient participation in and awareness of the litigation. See, e.g. Darvin v. International Harvester Co., 610 F.Supp. 255, 257 (S.D.N.Y.1985); Massengill v. Board of Educ., 88 F.R.D. 181 (N.D.Ill.1980). In following the lead of these cases, however, the district court appears to have applied a standard that does not vindicate the policies and purposes of Rule 23. Contrary to the district court's approach to the issue, adequate class representation generally does not require that the named plaintiffs demonstrate to any particular degree that individually they will pursue with vigor the legal claims of the class. Although the interests of the plaintiff class certainly would be better served if the named plaintiffs fully participate in the litigation, see, e.g., In re Goldchip Funding Co., 61 F.R.D. 592, 594-95 (M.D.Pa.1974), the economics of the class action suit often are such that counsel have a greater financial incentive for obtaining a successful resolution of a class suit than do the individual class members. See Deposit Guaranty Nat. Bank v. Roper, 445 U.S. 326, 338-39, 100 S.Ct. 1166, 1174, 63 L.Ed.2d 427 (1980) (plurality opinion). It is not surprising, then, that the subjective desire to vigorously prosecute a class action, which the district court here found missing in the named plaintiffs, quite often is supplied more by counsel than by the class members themselves. Obviously this creates a potential for abuse. See id. at 339, 100 S.Ct. at 1174. Yet the financial incentives offered by the class suit serve both the public interests in the private enforcement of various regulatory schemes, particularly those governing the securities markets, and the private interests of the class members in obtaining redress of legal grievances that might not feasibly be remedied "within the framework of a multiplicity of small individual suits for damages." Id. 28 As the district court aptly noted, a potential class is entitled to "more than blind reliance upon even competent counsel by uninterested and inexperienced representatives." In re Goldchip Funding Co., 61 F.R.D. at 594. For where the named plaintiffs "have abdicated their role in the case beyond that of furnishing their names as plaintiffs," the attorneys, in essence, are the class representative. Helfand v. Cenco, 80 F.R.D. 1, 7-8 (N.D.Ill.1977). Several district courts thus have properly denied class certification where the class representatives had so little knowledge of and involvement in the class action that they would be unable or unwilling to protect the interests of the class against the possibly competing interests of the attorneys. See, e.g., Efros v. Nationwide Corp., 98 F.R.D. 703, 707 (S.D.Ohio 1983); Helfand v. Cenco, supra; see also 7A Wright, Miller & Kane at Sec. 1766 pp. 310-11 (the "inquiry into the knowledge of the representative is to ensure that the party is not simply lending his name to a suit controlled entirely by the class attorney."). 29 In concluding that the named plaintiffs in these cases do not satisfy the adequate representation requirement of Rule 23(a)(4), the district court noted that neither this court nor the Supreme Court has set forth standards for determining the adequacy of class representatives.7 Because the issue of adequate class representation arises in a wide variety of contexts, it would be inappropriate for us to establish a standard for general application. We conclude, however, that in securities cases such as these, where the class is represented by competent and zealous counsel, class certification should not be denied simply because of a perceived lack of subjective interest on the part of the named plaintiffs unless their participation is so minimal that they virtually have abdicated to their attorneys the conduct of the case. To require less would permit attorneys essentially to serve as class representatives; to require more could well prevent the vindication of the legal rights of the absent class members under the guise of protecting those rights. 30 Although we conclude that the district court applied an erroneous standard in determining that the named plaintiffs would not be adequate class representatives, it would be inappropriate for us to make an independent application of the correct standard in this case. In contrast to the more strictly legal questions presented by the district court's characterization of the plaintiffs' claims in its rulings on the Rule 23(b)(3), the adequacy of class representation is primarily a factual issue that is best left for determination by the district court. Consequently, we remand the Rule 23(a)(4) issue for the district court to apply the standard we have set forth above. IV. CONCLUSION 31 For the foregoing reasons, the order of the district court is REVERSED IN PART, AFFIRMED IN PART, and REMANDED with instructions. Honorable John R. Brown, Senior U.S. Circuit Judge for the Fifth Circuit, sitting by designation 1 Additional claims were asserted in some of the complaints. The district court's ruling on these other claims were not challenged on appeal. Accordingly, the district court's denial of class certification as to those claims will not be disturbed 2 A suit may be maintained as a class action only if the four prerequisites of Rule 23(a) are satisfied and, in addition, the case satisfies one of the requirements of Rule 23(b). See Fed.R.Civ.P. 23(b). In this case, there is no dispute that subsections (1) and (2) of Rule 23(b) do not apply. Rule 23(b)(3) permits class action treatment if: (3) the court finds that the questions of law or fact common to the members of the class predominate over any questions affecting only individual members, and that a class action is superior to other available methods for the fair and efficient adjudication of the controversy. The matters pertinent to the findings include: (A) the interest of members of the class in individually controlling the prosecution or defense of separate actions; (B) the extent and nature of any litigation concerning the controversy already commenced by or against members of the class; (C) the desirability or undesirability of concentrating the litigation of the claims in the particular forum; (D) the difficulties likely to be encountered in the management of a class action. 3 The Eleventh Circuit, in the en banc decision Bonner v. City of Prichard, 661 F.2d 1206, 1209 (11th Cir.1981), adopted as precedent decisions of the former Fifth Circuit rendered prior to October 1, 1981 4 In remanding to the district court, Shores instructed the court to "reconsider the maintainability of this action as a class action as to members of a properly defined class of Bond purchasers who did not ... rely [on the allegedly misrepresentative offering circular]." 647 F.2d at 472. This instruction should not be misconstrued as an indication that the fraud-on-the-market claim would be available only to those individuals who did not rely on the circular. The district court previously had determined that a Rule 10b-5(2) misrepresentation claim could be brought as a class action on behalf of a class of purchasers who had relied on the offering circular. The court of appeals recognized that any member of a class so defined necessarily would satisfy one of the elements of a 10b-5(2) claim and thus could recover if it were proven on a class-wide basis that the defendants knowingly made materially misleading statements in the offering circular and that the purchasers suffered losses as a result. See 647 F.2d at 468 (listing elements of 10b-5(2) misrepresentation claim). The court realized that, under the facts alleged in that case, these class-wide 10b-5(2) issues would be contained in the proof necessary for recovery under the 10b-5(1) and (3) fraud-on-the-market theory. See 647 F.2d at 468 ("[T]he Offering Circular was assertedly only one step in the course of an elaborate scheme."). Those purchasers who did not rely could recover, however, only by meeting the additional burden of proving, under the fraud-on-the-market theory, that the securities could not have been issued but for the fraud of the defendants. Thus, the instruction that the district court determine the maintainability of a separate class for purchasers who did not rely was based simply upon the recognition that, as a practical matter, those purchasers would have a greater factual burden to establish liability than would those who relied on the offering circular. The instruction did not imply, however, that those who had relied on the offering circular could not also recover under the fraud-on-the-market theory. To the extent that the district court on remand reached a different conclusion, see Shores v. Sklar, [current] Fed.Sec.C.Rep. (CCH) p 92,074 (N.D.Ala. July 30, 1986), we reject that court's interpretation of the en banc decision 5 The presence of arbitration agreements is relevant for another factor in determining the suitability of class treatment on the 10b-5 claims. After the district court's order was issued, the Supreme Court in Shearson/American Express v. McMahon, --- U.S. ----, 107 S.Ct. 2332, 96 L.Ed.2d 185 (1987), upheld the enforceability of agreements requiring the arbitration of 10b-5 claims. Those purchasers whose 10b-5 claims are subject to arbitration thus could not be considered members of the class. In ruling on the motion for class certification, the district court did not determine whether the potential class members not subject to arbitration would be sufficient to satisfy the numerosity requirement of Rule 23(a)(2). The court should make this determination on remand 6 Under the Georgia law applicable to these diversity claims, see Klaxon Co. v. Stentor Electric Mfg. Co., 313 U.S. 487, 61 S.Ct. 1020, 85 L.Ed. 1477 (1941), the standard of liability would be determined, as an initial matter, by the law of the state in which the purchaser acquired the security, not of the state from which the shares were sold. See Risdon Enterprises, Inc. v. Coleman Enterprises, Inc., 172 Ga.App. 902, 324 S.E.2d 738, 740 (1984) (explaining Georgia's lex loci delecti choice of law rule in tort cases); see also Zandman v. Joseph, 102 F.R.D. 924, 930 (N.D.Ind.1984) (Indiana's lex loci delecti rule "would require use of the law of the state where each class member suffered his or her pecuniary loss"). If a particular state does not have a controlling statute, however, the Georgia choice of law rule requires application of the common law as construed by the courts of Georgia. See Frank Briscoe, Inc. v. Georgia Sprinkler Co., Inc., 713 F.2d 1500, 1503 (11th Cir.1983); Risdon Enterprises, 324 S.E.2d at 741 (1984). Thus, although the law of Georgia might eventually be applied on some claims involving purchases made in other states, that could be determined only after the district court had fully surveyed the law of the states of purchase. Moreover, even if Georgia law would require application of its own common law rules to some claims involving purchases in other states, the law of Georgia could be applied consistent with due process only if the particular transaction had some significant relation to Georgia. Phillips Petroleum Co. v. Shutts, 472 U.S. 797, 105 S.Ct. 2965, 2980, 86 L.Ed.2d 628 (1985) 7 In support of its conclusion that the named plaintiffs in these cases are inadequate class representatives, the court cited Rothenberg v. Security Management Co., Inc., 667 F.2d 958 (11th Cir.1982). Rothenberg upheld the dismissal of a Rule 23.1 derivative shareholders' action where the named plaintiff had been found not to be an adequate representative of the other shareholders. In making this determination, the district court and the panel on appeal relied on factors similar to those relied upon by the district court here. Rothenberg, however, is not entirely apposite to the determination of adequacy of a class representative under Rule 23(a)(4). A derivative suit poses inherent conflicts between those minority shareholders who are bringing the suit and the majority shareholders whose administration is being challenged either directly or indirectly. See 7C C. Wright, A. Miller & M. Kane, Federal Practice and Procedure Sec. 1833 at pp. 137-39. In contrast, a class suit by definition serves to benefit the members of the class. Consequently, a different degree of participation might well be required of a named plaintiff in a Rule 23.1 derivative than of a named plaintiff in a Rule 23 class action. The case before us does not involve a Rule 23.1 certification, and we express no opinion as to what the standard for such cases should be	{ "pile_set_name": "FreeLaw" }
551 F.2d 776 Earthia WILEY, Appellant,v.L. DAGGETT, Warden, United States Penitentiary, Leavenworth,Kansas, Appellee.Earthia WILEY, Appellant,v.UNITED STATES of America, Appellee.Earthia WILEY, Appellant,v.P. J. CICCONE, Warden, Medical Center for Federal Prisoners,Springfield, Missouri, Appellee. Nos. 76-1748 to 76-1750. United States Court of Appeals,Eighth Circuit. Submitted Jan. 14, 1977.Decided March 24, 1977. Neal J. Shapiro, Minneapolis, Minn., for appellant. Daniel M. Scott, Asst. U. S. Atty. (argued), and Robert G. Renner, U. S. Atty., Minneapolis, Minn., on briefs for appellee. Before BRIGHT and HENLEY, Circuit Judges, and HARPER, District Judge.* PER CURIAM. 1 Earthia Wiley, hereinafter called petitioner, appeals from a final order of the United States District Court for the District of Minnesota1 denying three petitions for post-conviction relief filed in 1974 pursuant to28 U.S.C. § 2255. Petitioner was tried and convicted in the district court in 1973 on a charge that he, being at the time a convicted felon, had unlawfully received and possessed a firearm in violation of 18 U.S.C. App. § 1202(a)(1).2 His conviction was affirmed by this court. United States v. Wiley, 478 F.2d 415 (8th Cir. 1973), cert. denied, 419 U.S. 879, 95 S.Ct. 143, 42 L.Ed.2d 119 (1974).3 2 The record reflects that in 1959 petitioner was arrested by police officers in Milwaukee, Wisconsin, on a charge of vagrancy based on a municipal ordinance of the kind that was later held to be unconstitutional in Papachristou v. City of Jacksonville, 405 U.S. 156, 92 S.Ct. 839, 31 L.Ed.2d 110 (1972). While in custody, petitioner confessed to the officers that he had committed the crime of armed robbery in Minnesota. He was returned to that State and was charged, tried and convicted in the District Court of Hennepin County; the conviction followed a trial to the court after petitioner on advice of counsel waived his right to trial by jury. Petitioner did not appeal from that conviction. 3 When petitioner was tried in the district court in 1973 he was represented by capable counsel, and no complaint is made about the quality of the representation that he received. In the course of the trial petitioner did not challenge the validity of the underlying felony conviction in Minnesota, and, indeed, his attorney stipulated as to the existence of the conviction. It does not appear that petitioner personally agreed to the stipulation which it seems that counsel entered into as a matter of trial tactics. 4 The § 2255 petitions considered by the district court were submitted by petitioner pro se while he was still in prison. The district court appointed counsel to represent petitioner, and he has been well represented both in the district court and in this court. 5 In his petitions it was alleged that petitioner's Minnesota conviction had been tainted with denials of due process of law and thus rendered his federal conviction subject to collateral attack. Petitioner contended basically that in the course of the Minnesota proceedings he had lacked the effective assistance of counsel, that his confession had been obtained by duress and coercion and should have been suppressed for those reasons, and that it should have been suppressed for the further reason that it resulted from an arrest that was unlawful because it was based on an unconstitutional municipal ordinance. 6 The government denied that petitioner had suffered any deprivation of due process of law in connection with the Minnesota proceedings, and contended, further, that since petitioner's trial counsel in 1973 had stipulated the Minnesota conviction into the record, petitioner had effectively waived his right to challenge the validity of that conviction. 7 When the petitions were filed in 1974, petitioner's application to the Supreme Court for review of our affirmance of his second conviction in the district court was still pending. Moreover, petitioner had pending in the Minnesota state courts an application for post-conviction relief with respect to his 1959 conviction in Hennepin County. In the circumstances the district court deferred ruling on the petitions until the Supreme Court had acted on the pending petition for certiorari and until the post-conviction proceedings in the Minnesota courts were concluded. 8 In due course the district court again deferred ruling on the petitions until the Supreme Court should hand down its decision in what became the case of Stone v. Powell, 428 U.S. 465, 96 S.Ct. 3037, 49 L.Ed.2d 1067 (1976).4 That case was decided on July 6, 1976, and a week later the district court denied the petitions before it, and in that connection filed a full and well reasoned but unpublished memorandum opinion. 9 In its opinion the district court took up first the question of whether petitioner's right to question the validity of his 1959 state conviction in this § 2255 proceeding had been waived effectively when his trial counsel in 1973 stipulated as to the conviction. The district court considered the question of waiver to be a close and difficult one and was of the view that it boiled down to the question of whether in the course of the 1973 trial the defendant had had the effective assistance of counsel. Since there had been no showing of inadequacy on the part of counsel, the district court thought that counsel's action was binding on petitioner and amounted to an effective waiver even though petitioner had not personally been advised of his right to object to the introduction of evidence as to an illegal underlying felony conviction and even though petitioner had not assented personally to the action of counsel in entering into the stipulation with respect to the conviction. 10 However, in view of what it considered to be the closeness of the question of waiver, the district court proceeded to consider petitioner's constitutional claim on the merits. Since we agree with the district court that those claims are without merit, we find it unnecessary to reach the question of waiver. 11 The district court found that all of the claims of petitioner, except his claim based on the alleged invalidity of the Milwaukee vagrancy ordinance, had been fully and fairly presented to the Minnesota state courts, that an adequate record had been made in those courts, and that there was no occasion for a further evidentiary hearing in the federal court. See Franklin v. Wyrick, 529 F.2d 79, 81 (8th Cir.), cert. denied, 425 U.S. 962, 96 S.Ct. 1747, 48 L.Ed.2d 208 (1976); Jones v. Swenson, 469 F.2d 535, 537 (8th Cir. 1972), cert. denied, 412 U.S. 929, 93 S.Ct. 2756, 37 L.Ed.2d 156 (1973); and Tyler v. Swenson, 427 F.2d 412, 415 (8th Cir. 1970). 12 The district court was of the opinion that the findings of the Minnesota courts to the effect that in 1959 petitioner had been adequately represented by counsel, and that his 1959 confession was voluntary were adequately supported by the state court record, and by the reasoning of the Minnesota courts. And the district court in effect adopted the state court findings as its own. We have given careful consideration to the materials before us and we see no error in that action. 13 In dealing with the claim that the confession should have been suppressed because it was obtained after the defendant had been arrested under an invalid ordinance, Judge Larson pointed out that petitioner had not brought a copy of the ordinance into the record and had cited no case holding that that particular ordinance is or was unconstitutional. However, the Judge assumed arguendo that the ordinance would be considered void for vagueness under the holding in Papachristou v. City of Jacksonville, supra, which was not decided until thirteen years after petitioner's arrest in Milwaukee. 14 There is nothing in the record that suggests that in 1959 the officers knew or had any reason to believe that the ordinance under which they were acting was invalid, and in rejecting petitioner's claim based on the invalidity of the ordinance Judge Larson relied ultimately on the presumed good faith belief of the officers that the ordinance was valid. We think that the good faith of the officers was an adequate basis for the ruling, and we uphold it on that basis. See Moffett v. Wainwright, 512 F.2d 496, 502, n. 6 (5th Cir. 1975), and United States v. Kilgren, 445 F.2d 287 (5th Cir. 1971). We express no opinion as to whether the opinion of the Supreme Court in Stone v. Powell, supra, is applicable to a confession as opposed to the results of a search; nor do we express any opinion as to the question of whether and to what extent that decision is applicable to a situation like this one where the original admissiblity of an item of evidence in a state court trial is questioned in a § 2255 proceeding having for its purpose the setting aside of a federal conviction based in part on an earlier conviction in the state court in the case in which the questioned item of evidence was admitted. 15 The judgment of the district court is affirmed. * The Honorable Roy W. Harper, United States Senior District Judge, Eastern District of Missouri, sitting by designation 1 The Honorable Earl R. Larson, District Judge 2 The offense was committed in 1969, and petitioner was first tried and convicted in that year. This court affirmed the conviction, but the Supreme Court reversed on the authority of United States v. Bass, 404 U.S. 336, 92 S.Ct. 515, 30 L.Ed.2d 488 (1971). United States v. Wiley, 438 F.2d 773 (8th Cir. 1971), vac., 404 U.S. 1009, 92 S.Ct. 686, 30 L.Ed.2d 657 (1972). Petitioner was then reindicted, retried and again convicted. He was sentenced to imprisonment for eighteen months. He has now served his sentence and is at liberty 3 On that appeal petitioner contended that his second conviction violated the double jeopardy prohibition of the sixth amendment to the Constitution of the United States, and, further, that he had been the victim of an unlawful search and seizure. We rejected those contentions. An attempt on petitioner's part to renew them in the instant proceeding was properly rejected by the district court 4 In that case the Supreme Court reversed Powell v. Stone, 507 F.2d 93 (9th Cir. 1974), in which it had been held that evidence obtained as a result of a search incident to an arrest under an unconstitutional vagrancy ordinance should have been excluded at the trial of the petitioner for murder in a state court in California. In the same opinion the Supreme Court also reversed our decision in Rice v. Wolff, Warden, 513 F.2d 1280 (8th Cir. 1975), wherein we had mandated federal habeas corpus relief to a state prisoner who had been convicted in Nebraska on the basis of evidence obtained by means of an illegal search. The holding of the Supreme Court was to the effect that where a state prisoner has had a full and fair opportunity to raise a fourth amendment claim in the state court proceedings, he may not relitigate the claim in a later federal habeas corpus proceeding	{ "pile_set_name": "FreeLaw" }
UNPUBLISHED UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT GLENNA KIDD, Plaintiff-Appellant, v. No. 96-2586 DALKON SHIELD CLAIMANTS TRUST, Defendant-Appellee. Appeal from the United States District Court for the Eastern District of Virginia, at Richmond. Robert R. Merhige, Jr., Senior District Judge. (CA-96-642) Submitted: December 9, 1997 Decided: March 23, 1998 Before RUSSELL,* WIDENER, and HAMILTON, Circuit Judges. _________________________________________________________________ Affirmed by unpublished per curiam opinion. _________________________________________________________________ COUNSEL Glenna Kidd, Appellant Pro Se. Orran Lee Brown, Sr., DALKON SHIELD CLAIMANTS TRUST, Richmond, Virginia, for Appellee. _________________________________________________________________ *This case was submitted for decision to a panel of Judges Russell, Widener and Hamilton. Judge Russell, however, died prior to the time the decision was filed. The decision is filed by a quorum of the panel. 28 U.S.C. § 46(d). Unpublished opinions are not binding precedent in this circuit. See Local Rule 36(c). _________________________________________________________________ OPINION PER CURIAM: Glenna Kidd, a disappointed Dalkon Shield Claimant, appeals the district court's orders (1) dismissing her civil action against the Dalkon Shield Claimants Trust (Trust) and imposing sanctions; and (2) finding her in contempt in the related bankruptcy action. Finding no error, we affirm. I The Trust disallowed Kidd's Dalkon Shield Claim because certain documents offered in support of the claim appeared to have been altered. Kidd moved for reinstatement of her claim, and the district court held a hearing on her motion. At the close of the hearing, the district court determined that Kidd bore the burden of showing by a preponderance of the evidence that it was more likely than not that her claim was genuine. The court found that Kidd had not met her burden and declined to reinstate her Dalkon Shield Claim. On appeal, we determined that the district court did not abuse its discretion and affirmed. See Kidd v. Dalkon Shield Claimants Trust (In re: A.H. Robins Co., Inc.), No. 94-2639 (4th Cir. May 28, 1996) (unpub- lished). Kidd then filed suit in the Circuit Court of the City of Richmond, seeking $15,000,000 in damages for torts arising from the manner in which the Trust processed her Dalkon Shield Claim. The Trust removed the action to federal court. Kidd moved for the recusal of the district court judge and bankruptcy judge; the district court denied the motion. In a related bankruptcy action, the Trust moved for a show cause order against Kidd because Kidd's state action violated the Sixth Amended and Restated Plan of Reorganization of A.H. Robins Company, Incorporated (Plan). Section 8.04 of the Plan and the dis- trict court's order confirming the Plan permanently enjoin all persons 2 from commencing any action relating to a Dalkon Shield Claim against the Trust except in accordance with the Plan. The district court ordered Kidd to show cause why she should not be held in con- tempt for violating the injunction by filing suit in state court. After a hearing, the district court entered an order in the first action directing Kidd to pay the Trust $2105 in attorneys' fees incurred in defending against the lawsuit. Additionally, the court dismissed that action with prejudice. In a second order entered in the bankruptcy case, the court found that Kidd was in violation of the permanent injunction and in contempt of court. The court also denied her motion to alter its earlier ruling denying the recusal motion. Punishment for Kidd's contempt was withheld for one year, provided that she pursued no further action against the Trust arising out of her Dalkon Shield Claim. Kidd now appeals both orders. II Kidd alleged that the district and bankruptcy judges should have recused themselves because: counsel for the Trust had delivered a pleading to the bankruptcy clerk by hand; the district judge had ruled against her in refusing to reinstate her disallowed claim; and other parties previously had sought to have the district judge removed from the Robins bankruptcy action. We review the denial of a recusal motion for abuse of discretion. See United States v. Mitchell, 886 F.2d 667, 671 (4th Cir. 1989). We agree that none of the grounds raised constitutes a valid basis for recusal. A judge "shall disqualify himself in any proceeding in which his impartiality might reasonably be questioned." 28 U.S.C. § 455 (1994). Disqualification is mandatory if a judge "has a personal bias or preju- dice concerning a party, or personal knowledge of disputed evidenti- ary facts concerning the proceeding." 28 U.S.C.§ 455(b)(1) (1994). Previous judicial rulings alone do not demonstrate bias. See Liteky v. United States, 510 U.S. 540, 554-56 (1994). The fact that, during the course of the Robins bankruptcy, others have unsuccessfully sought the recusal of the district judge does not constitute a ground for recusal. Finally, hand delivering a document to the Clerk of the Bank- ruptcy Court does not demonstrate an improper communication with the bankruptcy judge. 3 III Under § 8.05(d) of the Plan and ¶ 45 of the order confirming the Plan, the district court retains jurisdiction to enter appropriate orders, including "contempt and other sanctions," in aid of the Plan and related documents. In the exercise of this jurisdiction, the district court properly dismissed Kidd's damages action and imposed a mone- tary sanction against her. Kidd initially proceeded in accordance with the Plan and the Claims Resolution Facility. However, after the disallowance of her claim was upheld by the federal courts, she elected to file suit in state court. This constituted a clear violation of the Plan and the order con- firming the Plan. The district court acted well within its discretion when it dismissed her unauthorized action and imposed monetary sanctions. IV Kidd violated the permanent injunction by suing in state court. The district court acted within its discretion when it found her in contempt of court and decided to withhold punishment for the contempt for one year provided Kidd filed no further lawsuits in connection with her claim. V We accordingly affirm the district court's orders. In light of our decision, we deny as moot the pending motion for stay of the order that Kidd pay the Trust attorneys' fees incurred in defense of this action. We dispense with oral argument because the facts and legal arguments are fully presented in the materials before the court and argument would not aid the decisional process. AFFIRMED 4	{ "pile_set_name": "FreeLaw" }
Filed 3/9/17 IN THE SUPREME COURT OF CALIFORNIA THE PEOPLE, ) ) Plaintiff and Respondent, ) ) S230259 v. ) ) Ct.App. 2/8 B253610 KEITH RYAN REESE, ) ) Los Angeles County Defendant and Appellant. ) Super. Ct. No. TA125272 ____________________________________) The federal Constitution‘s equal protection clause compels the government to provide indigent criminal defendants, free of charge, with basic tools for an adequate defense that are available for a price to other defendants. (Britt v. North Carolina (1971) 404 U.S. 226, 227 (Britt).) Both this court and the United States Supreme Court have long held that one such tool is access to a transcript of prior proceedings. (Ibid; People v. Hosner (1975) 15 Cal.3d 60 (Hosner).) In Hosner, we held that an indigent criminal defendant facing retrial is presumptively entitled to a ―full‖ and ―complete‖ transcript of the prior proceedings. (Hosner, at pp. 65, italics omitted.) We granted review in this case to consider the Court of Appeal‘s holding below that Hosner‘s presumption applies only to transcripts of witness testimony and not to transcripts of opening statements and closing arguments. We hold that we meant what we said in Hosner: An indigent defendant facing retrial is presumptively entitled to a ―full‖ and ―complete‖ trial transcript –– and this entitlement extends to counsel‘s statements. The trial court and Court of 1 Appeal therefore erred when they required defendant to demonstrate why a transcript of the statements was necessary for his defense. But we nevertheless affirm the judgment of conviction, because we also find the error here was harmless beyond a reasonable doubt. I. Defendant Keith Ryan Reese is an indigent pro se defendant. He was charged with making criminal threats (Penal Code § 422, subd. (a))1, possession of a firearm by a felon (§ 29800, subd. (a)(1)), use of a firearm in the commission of making criminal threats (§ 12022.5, subd. (a)) and assault with a firearm (§ 245, subd. (a)(2)). On April 11, 2013, a jury deadlocked on the charges after a five-day trial, and the court declared a mistrial. The court set the retrial for June 6, 2013. At a pretrial hearing on April 26, the court granted defendant‘s motion for a ―complete record of trial transcripts.‖ The court continued the retrial date to June 10. On June 6, the defendant received a transcript that included all witness testimony from the first trial, but omitted the opening statements and closing arguments. Before trial commenced on June 10, defendant argued that he did not receive the ―full set of transcripts which I am entitled to.‖ The trial court responded that it had ordered ―all the testimony‖ and that defendant was ―entitled only to the testimony given.‖ Defendant argued that he was ―required‖ to have transcripts of the opening statements and closing arguments so that he ―won‘t make the same mistakes,‖ given that he had a ―small amount of time to study a lot.‖ Without hearing from the prosecution, the trial court denied the request and the defendant‘s motion for a continuance. After a three-day trial, the jury found 1 All subsequent statutory references are to the Penal Code, unless otherwise noted. 2 defendant guilty on all counts. The trial court then sentenced the defendant to an aggregate sentence of 17 years in state prison. A divided panel of the Court of Appeal rejected defendant‘s challenge to the denial of his request for a transcript of the opening statements and closing arguments. The majority recognized that a defendant facing retrial is presumptively entitled to a transcript of the first trial, but held that the presumption applies only to witness testimony. The majority reasoned that a defendant is required to demonstrate a need for other portions of the trial transcript, including opening statements and closing arguments. Concluding that defendant failed to demonstrate any such need, the majority affirmed the convictions.2 By contrast, the dissent argued that Hosner‘s presumption applied to counsel‘s statements as well as witness testimony. Because the prosecution did nothing to rebut Hosner‘s presumption, the dissent found federal constitutional error. We granted defendant‘s petition for review to determine whether the trial court violated his constitutional rights when it denied his request for a transcript of the opening statements and closing arguments from his first trial. II. A. The federal Constitution guarantees indigent criminal defendants a free transcript of trial proceedings for their defense. The high court first announced this principle in Griffin v. Illinois (1956) 351 U.S. 12 (Griffin), where it concluded that refusing to provide indigent defendants with trial transcripts on appeal violated equal protection. (Id. at p. 19.) The decision was grounded on a straightforward principle: that equal protection bars any distinction between 2 The Court of Appeal did stay defendant‘s sentence for some of the counts to avoid violating section 654‘s prohibition on double punishment. 3 criminal defendants on the basis of their economic means. (Id. at p. 17.) Because a defendant‘s financial status bears no rational relation to a defendant‘s guilt or the need for appellate review, the state could not deny to indigent defendants the opportunity for full appellate review that remained available to defendants who could afford to purchase a transcript. (Id. at pp. 18-19.) The court nonetheless found that this principle did not guarantee a complete transcript in all circumstances. Where alternatives to a full transcript suffice to safeguard an indigent defendant‘s right to effective appellate review, the state is not required to provide a full trial transcript. (Id. at p. 20.) So important is an indigent defendant‘s right to transcripts of prior proceedings that it applies in misdemeanor cases –– even where the defendant is sentenced only to a monetary fine. (Mayer v. City of Chicago (1971) 404 U.S. 189, 196-197.) And it applies not only on appeal but where an indigent defendant faces retrial. (Britt, supra, 404 U.S. at p. 227.) In Britt, the court held that an indigent defendant facing retrial has a right to a free transcript of the first trial. In so holding, the court emphasized the importance of two factors that determine whether an indigent defendant‘s interest in obtaining a transcript of prior proceedings is strong enough to entitle him or her to the transcript: (1) the value of the transcript to the defendant; and (2) the availability of alternative means that would fulfill the same functions as a transcript. (Ibid.) In elucidating the first factor, the court rejected any notion that a defendant is required to demonstrate a need for the transcript. Instead, Britt concluded that courts could ordinarily assume that a defendant would benefit from the transcript of an earlier trial. (Id. at p. 228.) What cannot be assumed –– because of the second factor –– is that an indigent defendant is automatically entitled to a transcript of the prior proceeding. With the second factor, the court struck a balance that appears calibrated to protect defendants‘ interests without imposing unnecessary costs on the government: 4 defendants are not required to prove the inadequacy of transcript alternatives, but neither are they entitled to a transcript of the first trial if the substantial equivalent of a transcript exists. (Id. at p. 230.) Indeed, because the defendant in Britt conceded that such an equivalent existed, the high court affirmed the conviction. (Ibid.) While Britt established the basic framework for considering an indigent defendant‘s claim to the transcripts of a previous trial, the Britt defendant‘s concession prevented the court from fully considering what showing would be required to overcome the defendant‘s presumption of need for a transcript. We first addressed that issue in Shuford v. Superior Court (1974) 11 Cal.3d 903. In Shuford, we relied on Mayer to hold that, if the defendant is entitled to a transcript, the state bears the burden of showing that a mere portion of the trial transcript (or a transcript alternative) will suffice. (Shuford, at p. 907.) Because the defendant in Shuford demonstrated a particularized need for the transcript, however, we had no occasion in that case to address the issue raised by Britt‘s statement that a court can ordinarily assume that indigent defendants benefit from access to a previous trial transcript. We considered this issue and its relationship to Britt a year later, in Hosner. The question there was whether the ―mere facts‖ of a defendant‘s indigence and timely request for a transcript presumptively entitled him to one. (Hosner, supra, 15 Cal.3d at p. 64.) We answered in the affirmative, holding that the federal Constitution‘s equal protection clause presumptively entitles an indigent defendant facing retrial to a complete transcript of his first trial. (Id. at p. 66.) Our holding in Hosner proves important in two respects. First, Hosner established that a defendant need not demonstrate any particular need for the transcript, as such a need is presumed. (Hosner, supra, 15 Cal.3d at p. 65, fn. 4.) Second, Hosner reiterated that a defendant ―is presumed, if he needs a transcript at 5 all, to need nothing less than a complete transcript.‖ (Id. at p. 66.) For these reasons, the burden is ―on the prosecution to show that the defendant would have an effective defense or appeal with anything less than a complete transcript.‖ (Id. at p. 65.) Because the prosecution failed to establish that the available alternatives to a full transcript provided for an effective defense,3 we held that the trial court‘s denial of the defendant‘s request for the full trial transcript had ―abridged the defendant‘s right to the equal protection of the laws.‖ (Hosner, 15 Cal.3d at p. 62.) Given the scope of the equal protection principles we articulated in Shuford and Hosner, we need look no further than those cases to decide whether the trial court violated defendant‘s equal protection rights in this case. Before the start of the retrial, defendant requested the entire transcript of his first trial — including the opening and closing statements. Because defendant had the benefit of Hosner‘s presumption, he was entitled to a full and complete transcript of his first trial unless the prosecution ― ‗clearly establish[ed] the contrary.‘ ‖ (Hosner, supra, 15 Cal.3d at p. 69, quoting People v. Jones (1944) 24 Cal.2d 601, 609.) Here — as the People concede — the prosecution made no showing whatsoever that defendant could muster an adequate defense without access to a transcript of the opening and closing statements from his first trial. In fact, the trial court denied the request despite the prosecution never addressing defendant‘s request. The trial court erred in doing so because the prosecution had done nothing to rebut 3 The prosecution cited the short time period between the first and second trials, the fact that defendant had the same attorney for both trials, and the availability of an oral transcription of the reporters notes of the first trial. (Hosner, supra, 15 Cal.3d at pp. 68-69.) 6 the presumption that defendant had a right to nothing less than a full and complete transcript of his first trial. In contrast, the Court of Appeal read Hosner‘s presumption as applying only to transcripts of witness testimony. This led it to conclude that a defendant facing retrial must demonstrate a need for other portions of the trial transcript. But we decline to read Hosner so narrowly, because the constitutional interests at stake foreclose any conclusion that Hosner‘s presumption applies only to witness testimony. In the context of criminal adjudication, the equal protection clause guarantees an indigent defendant‘s opportunity to mount a similar defense against criminal charges as can a wealthy defendant. (See Griffin, 351 U.S. at p. 17 [Equal protection safeguards ―the central aim of our entire judicial system — all people charged with crime must, so far as the law is concerned, ‗stand on an equality before the bar of justice in every American court,‘ ‖ quoting Chambers v. Florida (1940) 309 U.S. 227, 241].) As noted above, Hosner‘s holding is grounded in this important equal protection principle. (See Hosner, supra, 15 Cal.3d at p. 62.) It is simply inconsistent with the purpose of this guarantee to distinguish between transcripts of witness testimony and transcripts of counsel‘s statements — both of which a wealthy defendant is certain to purchase — when determining whether Hosner‘s presumption applies. For this very reason, we said nothing in Hosner to suggest that its framework applied only to transcripts of witness testimony. To the contrary — we described the transcript to which the defendant was presumptively entitled as a ―full transcript of prior proceedings‖ and a ―complete transcript of his first trial,‖ not merely a transcript of witness testimony. (Id. at pp. 65-66, original italics omitted, italics added.) In support of the Court of Appeal‘s holding, the People cite the high court‘s statement in Britt that the transcript of a previous trial is ―assumed‖ to be valuable to a defendant ―in at least two ways: as a discovery device in preparation for trial, 7 and as a tool at the trial itself for the impeachment of prosecution witnesses.‖ (Britt, supra, 404 U.S. at p. 228.) According to the People, it follows from this conclusion that opening statements and closing arguments are of lesser importance to an indigent defendant because they are not evidence and therefore not particularly relevant or even useful for discovery or impeachment purposes. Yet Britt clearly never purported to offer an exhaustive list of the uses of a trial transcript, nor did it limit an indigent defendant‘s equal protection interests in the transcript of the previous trial. (Ibid. [―in at least two ways,‖ italics added].) And for good reason. A transcript is important not solely for its impeachment and discovery value, but also for what it conveys about the prosecution‘s theory and key arguments. An attorney equipped with such knowledge will be better able to anticipate the prosecution‘s case and devise ways in which to counter it. Indeed, it may not be until a defense attorney reviews the opening statements and closing arguments that the prosecution‘s theory emerges. (See Herring v. New York (1975) 422 U.S. 853, 862 [It is only during closing argument that ―counsel for the parties are in a position to present their respective versions of the case as a whole.‖].) The considerable importance of counsel‘s statements does not imply, however, an equivalence for all purposes between such statements and evidence. The prosecution remains free, of course, to reference these distinctions when attempting to carry its burden of establishing that anything other than a full and complete transcript (including opening statements and closing arguments) suffices to guarantee the defendant an adequate defense. We simply hold here that any differences between a transcript of witness testimony and that of counsels‘ statements do not justify exempting opening statements and closing arguments from Hosner‘s presumption of entitlement. The Court of Appeal erred when it held otherwise. 8 B. Having found federal constitutional error, we must decide if it requires reversal of defendant‘s conviction. Most federal constitutional errors are subject to harmless error review under Chapman v. California (1967) 386 U.S. 18 (Chapman). (Washington v. Recuenco (2006) 548 U.S. 212, 218.) Not so for those federal constitutional errors deemed ―structural,‖ which require automatic reversal without a demonstration of harm to the defendant. (Ibid.) In Hosner, we held that the erroneous denial of an indigent defendant‘s motion for a transcript of a prior trial was indeed structural error that required automatic reversal. (Hosner, 15 Cal.3d at p. 70.) Defendant argues that this holding requires us to reverse the conviction here regardless of harmless error, while the People argue that Hosner‘s harmless error holding should be reexamined or, at a minimum, confined to a total denial of the right to a previous trial transcript. By their very nature, structural errors render a trial fundamentally unfair or an unreliable determinant of a defendant‘s guilt or innocence. (Neder v. United States (1999) 527 U.S. 1, 9.) For an error to be structural, it must affect the entire ―framework within which the trial proceeds.‖ (Arizona v. Fulminante (1991) 499 U.S. 279, 308, 310 (Fulminante).) Accordingly, denials of the right to the attorney of one‘s choice (United States v. Gonzalez-Lopez (2006) 548 U.S. 140), to an unbiased judge (Tumey v. Ohio (1927) 273 U.S. 510), and to a valid reasonable doubt instruction (Sullivan v. Louisiana (1993) 508 U.S. 275) are all paradigmatic examples of structural errors. By contrast, the high court has defined errors susceptible to harmless error review — so-called trial errors — as errors ―in the trial process itself.‖ (Fulminante, at p. 310.) A prime example is the erroneous admission of evidence. (Ibid.) Although the question whether a constitutional violation is structural or trial error is generally thought to be categorical, the harmless error status of certain 9 constitutional violations is neither binary nor fixed. Certain errors can shift between being structural or subject to harmless error review depending on the nature and extent of the violation. An especially apt example is the right to counsel, as Hosner explicitly connected the right to previous trial transcripts and the right to counsel in its discussion of whether harmless error review was possible. (Hosner, supra, 15 Cal.3d at p. 70.) There can be no question, of course, that the complete absence of counsel is structural error. (See Chapman, supra, 386 U.S. at p. 23, fn. 8, citing Gideon v. Wainwright (1963) 372 U.S. 335.) Notwithstanding this fact, the high court has held that the absence of counsel at a critical stage of trial can be subject to harmless error review. (See Coleman v. Alabama (1970) 399 U.S. 1, 10-11 [counsel‘s absence at preliminary hearing subject to harmless error review, in a case where state law prohibited prosecution from using anything from preliminary hearing at trial].) Similarly, we have applied harmless error analysis to the temporary absence of counsel during trial. (See People v. Ayala (2000) 24 Cal.4th 243, 269 [applying Chapman to erroneous exclusion of counsel during portion of hearing conducted pursuant to Batson v. Kentucky (1986) 476 U.S. 79]; People v. Hogan (1982) 31 Cal.3d 815, 848-850 [applying Chapman where trial court responded to jury inquiry without consulting defense counsel], disapproved on another ground in People v. Cooper (1991) 53 Cal.3d 771, 836.) Various other courts have done the same. (See, e.g., Key v. People (Colo. 1994) 865 P.2d 822, 826-827 [applying harmless error review to defense attorney‘s absence for scheduling conference with jurors during deliberations]; U.S. v. Toliver (3rd Cir. 2003) 330 F.3d 607, 615 [trial court responds to jury inquiry without consulting with defense counsel]; Vines v. U.S. 10 (11th Cir. 1994) 28 F.3d 1123, 1129 [attorney briefly absent during witness testimony].)4 So what matters in determining whether certain violations of law in the adjudicatory process are fully structural or subject to appropriate harmless error review is not only the fact an error occurred, but the nature and extent of it. In Hosner, we concluded it was structural error for an indigent defendant to suffer the near-total5 denial of a prior trial transcript. The denial of a transcript, we reasoned, ―infects‖ the entire second trial, and an appellate court could only ―hypothesize‖ what effect the transcript of a previous trial would have on the defendant‘s retrial. (Hosner, 15 Cal.3d at p. 70.) Moreover, an automatic reversal rule was required to ensure that the prosecution had an incentive to challenge –– before trial –– the defendant‘s right to a transcript. (Ibid.) And the defendant‘s right would be undermined by allowing the prosecution to wait until an appeal to litigate the need for a transcript ―disguised under the rubric of ‗harmless error.‘ ‖ (Id. at p. 71, fn. 7.) At the same time, we reserved decision on whether a rule of automatic reversal should apply to the erroneous denial of a request for the transcript of other proceedings, such as a hearing on a motion to suppress. (Ibid.) There is no reason for us to depart from Hosner‘s reasoning with respect to the total — or all-but-total — denial of the right to a previous trial transcript. For those errors, a reviewing court is in no position to assess the effect of the violation: the court cannot know how a second trial might have unfolded had the defendant the benefit of the prior trial transcript. (See Fulminante, supra, 499 U.S. at pp. 307-308.) Access to the transcript of a previous trial could conceivably affect 4 We express no opinion on the specific outcomes in those cases but cite them only for the proposition that the absence of counsel can, in some circumstances, be subject to harmless error review. 5 The defendant in Hosner received the transcript of a portion of his own testimony from the previous trial. (Hosner, supra, 15 Cal.3d at p. 68.) 11 every aspect of a retrial, from the trial‘s most granular subtleties to its overall course. Possession of a transcript gives a defendant facing retrial the potential to impeach each and every witness called at both trials. Evidence that initially seemed overwhelming might have been successfully rebutted, had the defendant‘s attorney anticipated the government‘s theory and prepared to argue against it. For these reasons, denial of the right to an entire transcript affects the ―entire conduct of the trial from beginning to end‖ and therefore is not amenable to harmless error review on appeal. (Id. at p. 309.) What does not follow from this conclusion is that the erroneous withholding of any portion of a previous trial transcript is automatically structural error. On this issue, the Ninth Circuit held that the partial denial of the right to a previous trial transcript is subject to harmless error review, and suggested that the total denial of the same right would be structural error. (See Kennedy v. Lockyer (9th Cir. 2004) 379 F.3d 1041, 1053.) We agree. The wrongful withholding of part of a previous transcript does not affect the ―entire conduct of the trial from beginning to end‖ and thus defy harmless error review. (Fulminante, supra, 499 U.S. at p. 309.) Rather, when the denial of the right to a previous trial transcript is less than total, appellate courts will often have little difficulty conducting harmless error review. If the missing portions of the transcript cover witness testimony, a court can consider whether the defense was unable to counter that testimony at the retrial (for example by impeaching the witness or witnesses on discrepancies between the testimony offered at each trial). Similarly, if the portion missing is, as in this case, counsel‘s statements, a court can determine whether the record indicates that the defense attorney failed to anticipate the prosecution‘s overall theory or its argument as to a specific dispute. What we therefore conclude is that where a defendant is erroneously denied all — or, as in Hosner, practically all — of the previous trial transcript, the error is structural. But where a defendant is 12 wrongly denied only portions of the previous trial transcript, the error is amenable to harmless error review. We must now determine whether the defendant‘s inability to access a part of the transcript was harmless in this case. Federal constitutional errors subject to harmless error review are reviewed under Chapman, which requires us to reverse the conviction unless the People can demonstrate that the error was harmless beyond a reasonable doubt. (People v. Aranda (2012) 55 Cal.4th 342, 367 (Aranda).) To determine whether the People have carried their burden, we examine the entire record and must reverse if there is a ― ‗ ―reasonable probability‖ ‘ ‖ that the error contributed to the verdict. (Ibid.) In this case, our review of the record convinces us that the error was harmless beyond a reasonable doubt. The People charged defendant with making criminal threats, possession of a firearm by a felon, and assault with a firearm. The charges arose out of an incident at the home of defendant‘s mother. The prosecution alleged that defendant‘s mother called 911 and, once officers arrived, defendant‘s mother, uncle, and girlfriend all stated that defendant had threatened his mother and girlfriend with a firearm. Both of defendant‘s trials revolved around two key disputes. First, the three witnesses from the scene all recanted substantial portions of their earlier statements during their trial testimony. Second, the officers recovered a holster in the mother‘s apartment but did not find any firearm despite searching with a gun-sniffing dog. Several factors underscore why the error did not contribute to the verdict. The prosecution‘s case was straightforward and quite similar at the two trials. During his opening statement and closing argument at the first trial, the prosecutor argued that the witnesses recanted to protect defendant and that defendant had hidden the firearm. Defendant, by contrast, argued that the officers had lied about the witnesses‘ allegations at the scene and that there had never been a gun at all. 13 The People‘s case during the retrial was not meaningfully different. The prosecutor‘s opening statement at the second trial previewed an identical theory of the case and explanation for the discrepancy between the witnesses‘ statements at the scene and on the stand. Each witness again disputed that defendant had threatened his mother and girlfriend at the scene. During closing argument, the prosecutor argued once more that the witnesses had recanted their statements to protect defendant and that defendant had hidden the gun while officers spoke with the witnesses outside the home. Moreover, the retrial took place just two months after the initial trial, and defendant represented himself both times. There is no indication that defendant failed to anticipate the prosecutor‘s arguments, or that the constitutional violation otherwise prejudiced his defense. Throughout the retrial, defendant drew out testimony regarding the two central issues in the case: the missing firearm, and the discrepancies between the witnesses‘ statements. Simply put, nothing in the record suggests that defendant‘s lack of access to the statement transcripts left him unaware of the prosecutor‘s theory or the central disputes in the case. Defendant argues that a full transcript would have left him better able to respond to the government‘s contention that he hid the gun, and he points to two moments from the second trial as examples of his claimed disadvantage. Our review of the record persuades us, however, that the withholding of the full transcript from the first trial did not prejudice the defense at either moment. First, defendant points to his attempts to compel the presence at trial of Officer Ramirez, who had handled the gun-sniffing dog at the scene. Prior to trial, defendant attempted to compel the presence of Officer Ramirez at trial to help establish that there was never any gun at the scene. The officer was on vacation, however, and the trial court declined to continue the case until his return. Defendant argues that he would have been able to persuade the trial court to continue the case if he had 14 possessed a transcript of the statements from the previous trial. But it is difficult to see what extra force the missing transcript portions would have added to defendant‘s argument. It is clear that defendant did not need the statement transcripts to understand the significance of Officer Ramirez‘s potential testimony, as he argued to the trial court that the testimony would establish that there was ―nowhere to hide‖ a gun in the mother‘s ―very small apartment.‖ Nor is there a reasonable probability that the trial court would have been more likely to grant the continuance had defendant pointed to those moments during the prosecution‘s arguments when it referenced the hidden gun. Second, defendant points to his cross-examination of Officer Azarte, who supervised the witnesses outside the apartment. Defendant argues that he would have more effectively cross-examined Officer Azarte regarding the missing gun had he possessed a full transcript, but once again it is difficult to see how the defense was prejudiced. As defendant‘s argument for a continuance proves, he was aware before trial commenced that the existence of the gun would be an important issue. Officer Azarte‘s direct testimony only further underscored this point, as he testified that the responding officers searched for the gun for ―between twenty [or] thirty minutes‖ without finding it. In fact, defendant cross-examined Officer Azarte at length regarding the abilities of gun-sniffing dogs, which proves that defendant did not need the transcripts of the statements from the previous trial to understand the salience of this issue. There is simply no indication that the missing transcript portions left him unable to develop through Officer Azarte his theory about the existence of a gun. So we are convinced — beyond a reasonable doubt — that defendant‘s lack of access to a transcript of opening statements and closing arguments from his first trial did not contribute to the verdict. (Aranda, supra, 55 Cal.4th at p. 367.) 15 III. A defendant facing retrial is presumptively entitled to a full transcript of the previous trial –– including opening and closing statements. The Court of Appeal‘s conclusion to the contrary ignores that transcripts of counsel‘s statements can be critical to an indigent defendant‘s ability to mount a defense similar to that available to a wealthy defendant. What a defendant is not entitled to receive, however, is automatic reversal for the partial denial of the right to a previous trial transcript. Instead, when — as happened here — defendant is denied only a portion of the transcript, the harmless error rule applies. Because we find the error harmless in this case, we affirm the judgment of the Court of Appeal. CUÉLLAR, J. WE CONCUR: CANTIL-SAKAUYE, C. J. WERDEGAR, J. CHIN, J. CORRIGAN, J. LIU, J. KRUGER, J. 16 See next page for addresses and telephone numbers for counsel who argued in Supreme Court. Name of Opinion People v. Reese __________________________________________________________________________________ Unpublished Opinion Original Appeal Original Proceeding Review Granted XXX 240 Cal.App.4th 592 Rehearing Granted __________________________________________________________________________________ Opinion No. S230259 Date Filed: March 9, 2017 __________________________________________________________________________________ Court: Superior County: Los Angeles Judge: John T. Doyle __________________________________________________________________________________ Counsel: Esther K. Hong, under appointment by the Supreme Court, for Defendant and Appellant. Kamala D. Harris, Attorney General, Kathleen A. Kenealy, Acting Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Lance E. Winters, Assistant Attorney General, Paul M. Roadarmel, Jr., Shaw McGahey Webb, Michael R. Johnsen, Nima Razfar and Nathan Guttman, Deputy Attorneys General, for Plaintiff and Respondent. Counsel who argued in Supreme Court (not intended for publication with opinion): Esther K. Hong Law Office of E. Hong Inc. 1255 West Colton Avenue, Suite 502 Redlands, CA 92374 (909) 991-5996 Nathan Guttman Deputy Attorney General 300 South Spring Street, Suite 1702 Los Angeles, CA 90013 (213) 897-2390	{ "pile_set_name": "FreeLaw" }
25 Cal.App.4th 328 (1994) 30 Cal. Rptr. 376 THE PEOPLE, Plaintiff and Respondent, v. LEON RICHARD FRANKLIN, Defendant and Appellant. Docket No. H010904. Court of Appeals of California, Sixth District. May 26, 1994. 330 COUNSEL Jill M. Bojarski and Jeffrey M. Evans, under appointments by the Court of Appeal, for Defendant and Appellant. Daniel E. Lungren, Attorney General, George Williamson, Chief Assistant Attorney General, Ronald A. Bass, Assistant Attorney General, Ronald S. Matthias and Richard A. Rochman, Deputy Attorneys General, for Plaintiff and Respondent. OPINION PREMO, Acting P.J. A jury convicted Leon Richard Franklin of one count of continuous sexual abuse of a child under the age of 14 with substantial sexual contact (Pen. Code, §§ 288.5, 1203.066, subd. (a)(8)) and he was sentenced to 16 years in state prison. He appeals, contending that he was prejudiced by the exclusion of evidence relevant to the contested issues in this case and that there is no factual basis for the single factor in aggravation on which the court relied to impose the upper term of imprisonment.[1] FACTS In 1976, defendant met Diane R. She and her then boyfriend stayed with defendant for a few months in 1978 when her mother remarried, and Diane 331 and defendant remained in contact over the years. After Diane married, her brother-in-law introduced defendant to the woman he married. The latter marriage ended in divorce less than a year later. In March 1991, defendant needed a place for his six-year-old daughter Nile to stay until the end of the school year. Diane and her husband Steve offered to have her stay with them and their children, Shayna, then five, Steven, nine, and Sean, six. Nile shared Shayna's room. A week after Nile came to stay with them, defendant also moved in. He slept on the sofa bed in the den, or when his back bothered him, on the hard floor of a spare room used as an office. When the child care provider had to quit in mid-May, defendant volunteered "to keep the kids." Defendant and Shayna would drive Nile to kindergarten at noon. Then they would pick up Sean from school at 2:30 p.m. and Steven at 3:30 p.m. Diane and Steve would pick up Nile on their way home from work. Nile went to Los Angeles to live with her mother in mid-June, and defendant moved out in August. The children, including Shayna, missed him and asked when he was coming back. Everyone was upset when defendant accepted an invitation to the children's soccer game in November but failed to attend. In January 1992, five months after defendant had left, Diane heard a conversation between Sean and Shayna in which Shayna said she did not like appellant. When Diane inquired, Shayna said she "hate[d]" him. Diane wanted to know why, and Shayna said, "I can't tell you, mommy, 'cause it's really gross." She said, "[H]e did something to me, and what he did to me he made me do to him." Shayna finally stated that defendant had licked her "private" and made her lick his "private," and that it was a secret. Diane told her she was saying serious things, and that they would have to call the police. Shayna said, "yes," and announced that she had "another" secret: defendant kissed her and put his tongue in her mouth. Shayna described appellant's exposing himself and masturbating in front of her. She said he made her watch a pornographic movie, and acted out the conduct in the movie. However, Shayna "shut down" when detective Greg Braze arrived, and refused to say anything more than defendant had done something "gross." 332 Braze asked Diane to interview Shayna in another room and report her answers to him. He told her not to ask leading questions or suggest answers, but to use general, open-ended questions. When he made this request, he was not aware that Diane had been molested as a child. If he had known, he probably would have listened to the interview through the door so he would also be a witness. The interview lasted 40 minutes. Diane emerged two or three times to relate what she had learned. Each time, Braze sent her back with new directions and the admonition against leading questions and suggested answers. Shayna confirmed the mutual licking of genitals which occurred at least twice in her bedroom and possibly in the master bedroom; french kissing; appellant's exposing himself to her once while he was in the bathtub and once in the shower; appellant's telling her he was going to stick his penis inside her when she was older; appellant's making her watch pornographic movies; and appellant's promise to take her to Disneyland if she kept this secret. Steve and Diane did not own any pornographic movies but had the Playboy channel on their bedroom television set, which also had a VCR. Steve testified he told defendant to make sure the children did not watch the Playboy channel. Shayna repeated the facts to a child protective services worker, a marriage-family-children's counselor who was an expert in the area of child abuse, and at trial. At trial she stated defendant had been "humping her" and that it hurt, although at the preliminary hearing she said that it did not hurt. She used the word "`horny,'" and said that she and defendant watched pornographic movies in her parents' bedroom while her brothers were outside playing. She described using hand signals that meant that she wanted to do "a little bit, a lot, or no." Prosecution experts testified that Shayna's hymenal rim was "very, very stretched out ... strikingly abnormal and strikingly different from normal children." Defense experts testified (from photographs) that Shayna's hymen appeared to be normal, that her condition was consistent with penetration but was not conclusive evidence of penetration. Shayna had not complained of pain nor had her parents noticed anything unusual about Shayna or her clothing when they gave her a bath or washed her clothes. However, both parents noticed Shayna pulling at her underpants shortly after defendant moved into their home. Shayna complained that her panties were too tight, but bigger pants did not seem to solve the problem. 333 Shayna's grandmother noticed a discharge in her panties and "pink" in the vaginal area when Shayna stayed with her. She asked Shayna if she was all right, but Shayna "kind of ... pull[ed] back." Diane talked to Shayna's pediatrician about the matter and reported to her mother that it was "okay." A police officer who qualified as an expert in child sexual abuse accommodation syndrome testified "[to] dispel[] a lot of [the] myths of how we would normally think children would react and how we would expect [children] to react when they're confronted with a problem of molestation." He testified that children sometimes act out in response to the stress and guilt that molestation lays on them, that sometimes they regress in their behavior, and that sometimes they improve their conduct in an attempt to "do everything right, then maybe this will stop." He added that delayed, conflicting, and unconvincing reporting is common. He also stated that any of the behavior he described could also be exhibited by children who were not abused. The defense contended that the molestations simply did not happen. "The defense also attempted to show that Shayna had precocious sexual knowledge and had dreamt or fantasized about sexual matters. Diane testified to one occasion when Shayna told her that she had seen Diane kissing [defendant]. After discussion, it was clear to Diane that it was a dream. However, Shayna believed at first that it had really happened. Shayna had also mentioned the incident to [defendant] and never told him that it was something she had dreamt." Both defendant and Diane testified that they had no romantic interest in each other. The defense also sought to introduce evidence that Shayna had told her brothers that Diane had come into the room during the night and had licked her vagina. The trial court excluded the evidence because defendant did not comply with the procedural requirements of Evidence Code section 782.[2] For the same reason, the court also refused to allow defendant to attempt to elicit from Diane evidence that she had told defendant to be sure that none of the children watched the Playboy channel and that she had caught the children watching it. Diane testified she had not discussed this subject with her husband. The court also refused to allow Diane to be questioned whether she had reprimanded Shayna for trying to go into the bathroom while her brothers were taking a bath. The jury did hear from Steve that Diane told him she had caught the boys watching the Playboy channel, however, he did not recall whether she said 334 that Shayna had been present too. Steve confirmed that he asked defendant to make sure that the children did not watch the Playboy channel. CONTENTIONS ON APPEAL Defendant contends that the trial court erred in excluding evidence of Shayna's "precocious sexual knowledge" pursuant to section 782. He contends that the evidence did not involve sexual conduct, and that it was relevant to the contested issues in this case. Second, defendant complains that the trial court erred in choosing the upper term based solely on the factor in aggravation that defendant abused a position of trust. Defendant reasons that violation of a position of trust is a factor which is present in virtually all resident child molestation cases. Consequently, this factor can be used to aggravate a sentence only if defendant's breach of trust is more egregious than that in the average case. Defendant contends that the record does not support such a finding in this case. EXCLUSION OF EVIDENCE OF SEXUAL CONDUCT At trial, defendant sought to introduce evidence "to show that Shayna had obtained her knowledge of the sexual acts which she claimed [defendant] had perpetrated on her not from [defendant's] actions but from other sources, such as the Playboy channel and her observations of her brothers in the nude, and to show that Shayna had sexual dreams or fantasies which she confused with reality." Defendant contends that the court erred in applying section 782 to the proffered evidence. That section specifies a procedure which must be followed before a defendant being prosecuted for a sexual offense will be allowed to attack the credibility of the alleged victim by presenting evidence of that witness's sexual conduct. The procedure is initiated by the filing of a written motion supported by an affidavit in which the offer of proof is stated. Defendant chose not to file a written motion because he maintained that the evidence he wished to present was not sexual conduct by the victim. (1) As this court explained in People v. Casas (1986) 181 Cal. App.3d 889, 895 [226 Cal. Rptr. 285], sexual conduct, as that term is used in sections 782 and 1103[3], encompasses any behavior that reflects the actor's or speaker's willingness to engage in sexual activity. The term should not be narrowly construed. 335 (2a) In the instant case we need not decide whether Shayna's interest in her brothers in their bath or her watching the Playboy channel with them constituted sexual conduct because the admission of one via another witness and the exclusion of the other was not error. The evidence that Shayna saw her brothers naked had minimal probative value on the issue whether the source of her "precocious" knowledge of sexual matters was something or someone other than appellant. The evidence was either irrelevant (§ 350) or involved the undue consumption of time. (§ 352.) However, the court's exclusion of Shayna's statement to her brothers in appellant's presence that Diane "had come into her room the night before and had licked her privates" was error. In this statement, Shayna falsely accused[4] another person of sexual misconduct. (3) Just as a prior false accusation of rape is relevant on the issue of a rape victim's credibility (People v. Adams (1988) 198 Cal. App.3d 10, 18 [243 Cal. Rptr. 580]), a prior false accusation of sexual molestation is equally relevant on the issue of the molest victim's credibility.[5] The instance of conduct being placed before the jury as bearing on credibility is the making of the false statement, not the sexual conduct which is the content of the statement. Even though the content of the statement has to do with sexual conduct, the sexual conduct is not the fact from which the jury is asked to draw an inference about the witness's credibility. The jury is asked to draw an inference about the witness's credibility from the fact that she stated as true something that was false. The fact that a witness stated something that is not true as true is relevant on the witness's credibility whether she fabricated the incident or fantasized it. The evidence therefore constitutes "any matter that has any tendency in reason to prove or disprove the truthfulness of his [or her] testimony at the hearing," including the extent of the witness's capacity to perceive, to recollect, or to communicate any matter about which he or she testified, the extent of the witness's opportunity to perceive any matter about which he or 336 she testified, and the existence or nonexistence of any fact testified to by the witness. (§ 780, subds. (c), (d) & (i).) The evidence is admissible under sections 1103, subdivision (a)(1), and 787. The latter section excluded specific instances of conduct to attack the credibility of a witness. However, it was held to be abrogated by the "Truth-in-Evidence" provisions of Proposition 8 (Cal. Const., art. I, § 28, subd. (d)). (People v. Adams, supra, 198 Cal. App.3d 10; accord, People v. Harris (1989) 47 Cal.3d 1047, 1080-1082 [255 Cal. Rptr. 352, 767 P.2d 619].) (2b) In the instant case, if the trier of fact found it true that Shayna falsely stated that her mother sexually molested her, this statement would be relevant to the trier of fact's determination of her credibility on defendant's culpability. The evidence should have been admitted. "Evidence Code section 354 provides inter alia that an erroneous exclusion of evidence shall not cause a judgment to be reversed unless the error complained of resulted in a miscarriage of justice and it appears of record that: `(a) The substance, purpose, and relevance of the excluded evidence was made known to the court by the question asked, an offer of proof, or by any other means; [¶] (b) The rulings of the court made compliance with subdivision (a) futile; or [¶] (c) The evidence was sought by questions asked during cross-examination or recross-examination." (People v. Adams, supra, 198 Cal. App.3d at p. 18.) The record shows that the battle for introduction of this evidence was hard-fought. The trial was basically a credibility contest between Shayna and defendant. The physical evidence was ambiguous. Shayna's emotional state during and after the period of the alleged molestation was apparently normal. Changes in Shayna's behavior did not begin until after she disclosed the misconduct to her mother. Shayna as well as her brothers missed defendant and appeared happy to see him after he moved out. The evidence was undisputed that Shayna falsely but sincerely believed that she saw her mother and defendant kissing. In addition, there was evidence to show that the content of Shayna's testimony was influenced by Shayna's observation of her mother's reaction to her testimony. Diane, who had been molested herself and who was extremely upset by Shayna's disclosures, testified that she believed Shayna altered some of her testimony at preliminary hearing when she saw her mother's reactions. Diane explained that she was present in the courtroom as a "support person" for Shayna. (Pen. Code, § 868.8.) She "almost fell 337 apart" watching Shayna using dolls from her bedroom at the preliminary hearing to illustrate what had happened to her. In answer to a question, Shayna stated that it did not hurt when defendant "humped" her. Diane testified, "whenever Shayna is responding to what happened to her, if she sees me upset or crying or sees that I'm hurting, she stops and she says, no, it didn't. It didn't hurt. So that's what I think has happened." Nevertheless, the exclusion of the evidence of Shayna's false belief did not result in a miscarriage of justice. The function of the excluded testimony was to impeach the complaining witness's credibility. Ample evidence for this purpose was placed before the jury: it heard evidence of the complaining witness's dream about her mother and defendant kissing, evidence that Shayna altered her testimony to accommodate her mother's sensitivity, and evidence from which it could infer that she had access to the Playboy channel. In addition, the jury had the opportunity to observe the witnesses including Shayna testify. Defense counsel vigorously argued the issue of Shayna's credibility and the weaknesses in her testimony and that of the prosecution case in general. The jury requested and received reread of Shayna's testimony, her mother's testimony, and Shayna's disclosures to the child protective services worker and the marriage-family-children's counselor. Deliberations and reread took approximately a day and a half. A trial court has discretion to exclude impeachment evidence if it is collateral, cumulative, confusing, or misleading. (People v. Price (1991) 1 Cal.4th 324, 412 [3 Cal. Rptr.2d 106, 821 P.2d 610].) The excluded evidence, although admissible and probative, was cumulative. Therefore, although the court erred in excluding the evidence, the error was harmless. VIOLATION OF A POSITION OF TRUST (4) Next, defendant contends that the trial court failed to state and the record does not demonstrate an adequate factual basis for the single aggravating factor the court found applicable, namely, abuse of a position of trust. Defendant states that in a resident child molestation case, the occupation of a position of trust is a factor which is present in virtually all cases. Consequently, it is not a factor which makes this particular case distinctively worse than the average case of resident child molestation. On this point, the First District Court of Appeal has stated: "A circumstance which is an element of the substantive offense cannot be used as a *338 factor in aggravation. [Citation.] A sentencing factor is an element of the offense if the crime as defined by statute cannot be accomplished without performance of the acts which constitute such factor. [Citations.] "The offense involved herein is defined by section 288.5, subdivision (a), in pertinent part, as follows. `Any person who either resides in the same home with the minor child or has recurring access to the child, who over a period of time, not less than three months in duration, engages in three or more acts of [proscribed] sexual conduct with a child under the age of 14 years at the time of the commission of the offense ... is guilty of the offense of continuous sexual abuse of a child....' [¶] It is undisputed that appellant was the victim's stepfather and was entrusted with caring for her and her sister. Thus he was placed in a position of trust and confidence regarding the children. Since continuous sexual abuse can be committed by anyone residing in the same home with the children, whether or not they have special status with the victim, such sentencing factor is not an element of the crime." (People v. Clark (1992) 12 Cal. App.4th 663, 666 [15 Cal. Rptr.2d 709].) In the instant case, there is overwhelming evidence that defendant was not merely a resident in the same house as Shayna, but was a person in whom she reposed trust and confidence. The court did not err in citing this factor as a circumstance in aggravation. DISPOSITION The judgment is affirmed. Wunderlich, J., and Mihara, J., concurred. A petition for a rehearing was denied June 21, 1994, and appellant's petition for review by the Supreme Court was denied August 25, 1994. Mosk, J., was of the opinion that the petition should be granted. NOTES [1] Defendant has filed a second supplemental brief, raising the constitutionality of CALJIC No. 2.90, based upon Cage v. Louisiana (1990) 498 U.S. 39 [112 L.Ed.2d 339, 111 S.Ct. 328] and Sandoval v. California (No. 92-9049, cert. granted Sept. 28, 1993) ___ U.S. ___ [125 L.Ed.2d 789, 114 S.Ct. 40]. The Supreme Court has now upheld this instruction. (Victor v. Nebraska (1994) 511 U.S. ___ [127 L.Ed.2d 583, 114 S.Ct. 1239].) [2] Further statutory references are to the Evidence Code unless otherwise stated. [3] In a criminal action, section 1103, subdivision (a), allows "evidence of the character or trait of character (in the form of an opinion, evidence of reputation, or evidence of specific instances of conduct) of the victim of the crime for which the defendant is being prosecuted ... if the evidence is: [¶] (1) Offered by the defendant to prove conduct of the victim in conformity with [such] character or trait of character." [4] The statement was presented as a product of Shayna's imagination. [5] In the trial court, defendant's testimony of his statement to the police that "if I believed everything the kids, [sic] said that [Diane] would be in jail herself," led to defense counsel's arguing for admissibility of the evidence because it was "a comment that my client heard this girl to say, and that is not at anywhere under the auspices of 782." Appellant also raised the issue in connection with Shayna's credibility as a witness, since "she has a tendency to fantasize or fabricate things."	{ "pile_set_name": "FreeLaw" }
77 So.3d 1268 (2011) CERTAIN INTERESTED UNDERWRITERS v. LAGO GRANDE, 6A, 6B CONDOMINIUM. No. 3D11-1670. District Court of Appeal of Florida, Third District. December 14, 2011. DECISION WITHOUT PUBLISHED OPINION Affirmed.	{ "pile_set_name": "FreeLaw" }
08-2746-ag Hodzic v. Holder BIA A095 377 065 A095 377 066 A095 377 067 UNITED STATES COURT OF APPEALS FOR THE SECOND CIRCUIT SUMMARY ORDER RULINGS BY SUMMARY ORDER DO NOT HAVE PRECEDENTIAL EFFECT. CITATION TO A SUMMARY ORDER FILED ON OR AFTER JANUARY 1, 2007, IS PERMITTED AND IS GOVERNED BY FEDERAL RULE OF APPELLATE PROCEDURE 32.1 AND THIS COURT’S LOCAL RULE 32.1.1. WHEN CITING A SUMMARY ORDER IN A DOCUMENT FILED WITH THIS COURT, A PARTY MUST CITE EITHER THE FEDERAL APPENDIX OR AN ELECTRONIC DATABASE (WITH THE NOTATION “SUMMARY ORDER”). A PARTY CITING A SUMMARY ORDER MUST SERVE A COPY OF IT ON ANY PARTY NOT REPRESENTED BY COUNSEL. 1 At a stated term of the United States Court of Appeals 2 for the Second Circuit, held at the Daniel Patrick Moynihan 3 United States Courthouse, 500 Pearl Street, in the City of 4 New York, on the 30 th day of April, two thousand ten. 5 6 PRESENT: 7 JOSÉ A. CABRANES, 8 DEBRA ANN LIVINGSTON, 9 GERARD E. LYNCH, 10 Circuit Judges. 11 _____________________________________ 12 13 MUSA HODZIC, SAFETA HODZIC, AZRA HODZIC, 14 Petitioners, 15 16 v. 08-2746-ag 17 NAC 18 ERIC H. HOLDER, JR., * UNITED STATES 19 ATTORNEY GENERAL, 20 Respondent. 21 _____________________________________ 22 23 FOR PETITIONERS: Pro Se. * Pursuant to Federal Rule of Appellate Procedure 43(c)(2), Attorney General Eric H. Holder, Jr., is automatically substituted for former Attorney General Michael B. Mukasey as the respondent in this case. 1 FOR RESPONDENT: Tony West, Assistant Attorney 2 General; Russell J.E. Verby, Senior 3 Litigation Counsel; Carmel A. 4 Morgan, Trial Attorney, Office of 5 Immigration Litigation, Civil 6 Division, United States Department 7 of Justice, Washington, D.C. 8 9 UPON DUE CONSIDERATION of this petition for review of a 10 decision of the Board of Immigration Appeals (“BIA”), it is 11 hereby ORDERED, ADJUDGED, AND DECREED, that the petition for 12 review is DENIED. 13 Petitioners, natives and citizens of Montenegro, seek 14 review of a May 16, 2008, order of the BIA denying their 15 motion to reopen. In re Hodzic, Nos. A095 377 065/066/067 16 (B.I.A. May 16, 2008). We assume the parties’ familiarity 17 with the underlying facts and procedural history of this 18 case. 19 We review the BIA’s denial of a motion to reopen for 20 abuse of discretion, mindful of the Supreme Court’s 21 admonition that such motions are “disfavored.” Ali v. 22 Gonzales, 448 F.3d 515, 517 (2d Cir. 2006) (citing INS v. 23 Doherty, 502 U.S. 314, 322-23 (1992)). We review for 24 substantial evidence the BIA’s evaluation of country 25 conditions evidence submitted with a motion to reopen. Jian 26 Hui Shao v. Mukasey, 546 F.3d 138, 169 (2d Cir. 2008). 2 1 A party may file only one motion to reopen removal 2 proceedings, and must do so no later than 90 days after the 3 date on which the final administrative decision was rendered 4 in the proceeding sought to be reopened. 8 C.F.R. 5 § 1003.2(c)(1),(2). It is beyond dispute that Petitioners’ 6 motion to reopen was untimely. However, the time and number 7 limitations do not apply to a motion to reopen that is 8 “based on changed circumstances arising in the country of 9 nationality or in the country to which deportation has been 10 ordered, if such evidence is material and was not available 11 and could not have been discovered or presented at the 12 previous hearing.” 8 C.F.R. § 1003.2(c)(3)(ii). The time 13 limit may also be equitably tolled if there is a claim for 14 ineffective assistance of counsel, and the petitioner 15 demonstrates both that counsel’s performance prejudiced the 16 outcome of the proceeding, and that he exercised due 17 diligence in pursuing the case. Iavorski v. INS, 232 F.3d 18 124, 135 (2d Cir. 2000). 19 The BIA did not abuse its discretion in finding that 20 Petitioners were not entitled to equitable tolling of the 21 filing period due to ineffective assistance of counsel. See 22 Rabiu v. INS, 41 F.3d 879, 882-83 (2d Cir. 1994) (holding 3 1 that, in order to be entitled to equitable tolling, a 2 petitioner must demonstrate that counsel’s performance was 3 so poor as to impinge on the fundamental fairness of the 4 proceedings). As the BIA found, Petitioners could not 5 establish prejudice because they did not seek new 6 representation until after their orders of removal were 7 administratively final and the deadline for filing both a 8 motion to reopen and a petition for review had passed. See 9 id. 10 The BIA also did not abuse its discretion in finding 11 that Petitioners failed to demonstrate changed conditions in 12 Montenegro. See Wei Guang Wang v. BIA, 437 F.3d 270, 275 13 (2d Cir. 2006) (holding that the Board is not required to 14 “expressly parse or refute . . . each individual . . . piece 15 of evidence offered by the petitioner”). The BIA reasonably 16 found that the evidence Petitioners submitted showed a 17 continuation of the same conditions that had prevailed 18 during their merits hearing, and arguably showed an 19 improvement. Thus, the BIA’s decision is supported by 20 substantial evidence. See 21 8 U.S.C. § 1229a(c)(7)(C)(ii); Jian Hui Shao, 546 F.3d at 22 169. 4 1 Finally, we lack jurisdiction to review Petitioners’ 2 argument that the BIA erred in refusing to reopen their 3 proceeding sua sponte under 8 C.F.R. § 1003.2(a), because 4 such a decision is “entirely discretionary.” See Azmond Ali 5 v. Gonzales, 448 F.3d 515, 518 (2d Cir. 2006); see also 6 Kucana v. Holder, 130 S. Ct. 827, 839 n.18 (2010). 7 For the foregoing reasons, the petition for review is 8 DENIED. As we have completed our review, any stay of 9 removal that the Court previously granted in this petition 10 is VACATED, and any pending motion for a stay of removal in 11 this petition is DISMISSED as moot. Any pending request for 12 oral argument in this petition is DENIED in accordance with 13 Federal Rule of Appellate Procedure 34(a)(2), and Second 14 Circuit Local Rule 34.1(b). 15 FOR THE COURT: 16 Catherine O’Hagan Wolfe, Clerk 17 5	{ "pile_set_name": "FreeLaw" }
FIRST DISTRICT COURT OF APPEAL STATE OF FLORIDA _____________________________ No. 1D17-2025 _____________________________ DWAYNE TYRONE ROBINSON, Appellant, v. STATE OF FLORIDA, Appellee. _____________________________ On appeal from the Circuit Court for Alachua County. William E. Davis, Judge. September 27, 2018 PER CURIAM. AFFIRMED. B.L. THOMAS, C.J., and MAKAR and WINSOR, JJ., concur. _____________________________ Not final until disposition of any timely and authorized motion under Fla. R. App. P. 9.330 or 9.331. _____________________________ Andy Thomas, Public Defender, Victor D. Holder, Assistant Public Defender, Tallahassee, for Appellant. Pamela Jo Bondi, Attorney General, Jason W. Rodriguez, Assistant Attorney General, Tallahassee, for Appellee. 2	{ "pile_set_name": "FreeLaw" }
COURT OF APPEALS FOR THE FIRST DISTRICT OF TEXAS AT HOUSTON ORDER Appellate case name: Jesus Jose Lacer v. The State of Texas Appellate case number: 01-17-00267-CR Trial court case number: 44479 Trial court: 33rd District Court of Burnet County On November 21, 2017, the Court issued an order noting that certain exhibits, marked by the official court reporter as follows, were not included as part of the reporter’s record forwarded to this Court on appeal. 1. Defendant’s sealed Exhibit 2 (video recording containing pornographic material); 2. Defendant’s sealed Exhibit 3 (video recording containing pornographic material). Thus, we ordered the District Clerk of Burnet County or the court reporter, if the exhibits are still in her possession, to deliver to the Clerk of this Court the original above described sealed exhibits. See TEX. R. APP. P. 34.5(c), 34.5(f), 34.6(d), 34.6(g). The District Clerk of Burnet County or the court reporter was also directed to include a copy of the trial court’s order sealing Defendant’s Exhibits 2 and 3. The Court received no response. Accordingly, we again ORDER the District Clerk of Burnet County or the court reporter, if the exhibits are still in her possession, to deliver to the Clerk of this Court the original above described sealed exhibits. See TEX. R. APP. P. 34.5(c), 34.5(f), 34.6(d), 34.6(g). The District Clerk of Burnet County or the court reporter should also include a copy of the trial court’s order sealing Defendant’s Exhibits 2 and 3. The Clerk of this Court is directed to receive, maintain, and keep safe the original sealed exhibits; to deliver them to the justices of this Court for their inspection; and, upon completion of inspection, to return the originals of the above described sealed exhibits to the District Clerk of Burnet County. The sealed exhibits shall be filed in the First Court of Appeals within 5 days of the date of this order. It is so ORDERED. Judge’s signature: /s/ Terry Jennings  Acting individually  Acting for the Court Date: December 19, 2017	{ "pile_set_name": "FreeLaw" }
543 U.S. 871 TIG INSURANCE CO.v.SECURITY INSURANCE COMPANY OF HARTFORD ET AL. No. 04-49. Supreme Court of United States. October 4, 2004. 1 C. A. 2d Cir. Certiorari denied. Reported below: 360 F. 3d 322.	{ "pile_set_name": "FreeLaw" }
972 F.Supp. 148 (1997) Thomas DAVIDSON, Plaintiff, v. TIME INC., a corporation, Kenneth Carson and Thomas Larkin, Defendants. No. 94 CV 0937(NG). United States District Court, E.D. New York. August 1, 1997. 149 Leonard N. Flamm, New York City, Gary E. Roth, Robert M. McCaffery, Leib, Kraus, Grispin & Roth, Scotch Plains, NJ, for plaintiff. Andrew W. Goldwater, Friedman & Kaplan, New York City, for defendants. OPINION AND ORDER GERSHON, District Judge. Plaintiff Thomas Davidson filed this action in March 1994, alleging race discrimination on the part of defendants Time Inc. ("Time"), Kenneth Carson, and Thomas Larkin, in violation of Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e et seq. ("Title VII"), 42 U.S.C. § 1981, and the New York Human Rights Law, N.Y. Exec. Law §§ 290 et seq. Defendants now move for summary judgment, arguing that no reasonable jury could conclude that Davidson was fired on account of his race. For the reasons set forth below, defendants' motion is granted. FACTS Unless otherwise noted, the following facts are undisputed: Davidson's Performance Davidson worked for defendant Time, Inc. ("Time") from February 1982 to November 1992, when he was dismissed. Davidson began at Time as chief dispatcher in the Mail and Traffic Department. In 1988, he became the manager of Distribution Services, under the supervision of Robert Varisco. In March 1990, after hearing complaints about the timeliness and reliability of Distribution Services, Time's Vice President of Administrative Services, Rosemarie Di Sapio, assigned responsibility for Distribution Services to Director of Operations, Thomas Larkin. Larkin immediately authorized an outside vendor of mailroom services, Pitney Bowes Management Services ("Pitney Bowes"), to perform an analysis of Time's distribution operations. In June 1990, Pitney Bowes issued a report identifying a number of deficiencies in Distribution Services, including a lack of established performance standards, duplication of effort, over-staffing, and high absenteeism. Soon thereafter, Varisco was relieved of any responsibility for Distribution Services, and plaintiff began reporting directly to Larkin. In late 1990, Larkin recommended that defendant Kenneth Carson be put in charge of Distribution Services. Carson became responsible for Distribution Services in January 1991, and plaintiff began reporting to Carson. Carson, in turn, reported to Larkin. According to Carson, Davidson's performance was unsatisfactory from the start. It is undisputed that Davidson resisted a number of changes proposed by Carson. It is also undisputed that Davidson failed to meet deadlines established by Carson for such tasks as submitting a proposal for establishing an in-house fulfillment center; making a recommendation regarding a pneumatic mail delivery tube; submitting a plan to ensure coverage of the mailroom telephone; evaluating the Reading Mail area; submitting a plan for newspaper deliveries; rewriting job descriptions; and developing an individualized training program for staff members. Davidson does not deny that he resisted Carson's suggestions and that he missed a number of deadlines. Instead, he proffers explanations for his behavior. For instance, he maintains that Carson's proposals sometimes failed to take into consideration Time's contract with the Newspaper Guild. He also attempts to justify his failure to timely complete tasks by detailing the problems he confronted with respect to each assignment. After becoming Davidson's supervisor, Carson twice evaluated Davidson's performance 150 as "unsatisfactory," first in September 1991, and again in the summer of 1992. Carson discussed the 1991 review with Davidson and informed him that he was in serious jeopardy of being dismissed if his performance did not improve drastically and immediately. Davidson's performance improved to a satisfactory level at the end of 1991, and Davidson therefore received a merit-based salary increase in April 1992. Nonetheless, Davidson's performance deteriorated in the summer of 1992; in fact, most of the missed deadlines enumerated above were to have been met during that time. On November 16, 1992, Carson met with Davidson and terminated his employment. Carson's decision was approved by Larkin and Di Sapio. Carson, Larkin and Di Sapio are white, as is Davidson. The Newspaper Guild Davidson's position is that he was dismissed, not because of any problems with his performance, but because Time was under a great deal of pressure to hire minorities in supervisory positions. In support of this position, Davidson cites complaints by members of the Newspaper Guild ("the Guild") regarding Time's hiring practices in Distribution Services. Although Time's employees are not required to join the Guild, a collective bargaining agreement ("CBA") between the Guild and Time governs conditions of employment at Time for employees who do not have supervisory authority. Managers are not Guild members, and the CBA does not apply to management positions such as the one held by plaintiff. In April and May of 1990, in meetings between Time and the Guild, Guild members complained that a white assistant manager was being trained to fill a management position. Guild members argued that minorities in the department should be trained for the position, rather than having whites hired from outside the company. They noted that, the previous year, they had objected when another white candidate was hired from outside the company to fill a management position. In spite of these complaints, Time selected a white applicant for the position in question. Soon thereafter, in two June 1990 meetings, Guild members again expressed their dissatisfaction over the failure of Time to promote minority employees to management positions in the department. Shortly thereafter, the Guild filed a formal grievance with respect to this issue.[1] Replacing Davidson The Killackey Offer In an affidavit submitted with the summary judgment motion, Carson states that, after Davidson's termination, he and Larkin offered Davidson's position to Distribution Department Head Bill Killackey, who is white. Similarly, in a reply affidavit, Larkin asserts that he "agree[s] with Mr. Carson's recollection" that they offered Davidson's position to Killackey. At their depositions, neither Carson nor Larkin had indicated that they had offered Killackey the job.[2] In Larkin's reply affidavit, he states that he remembered the offer to Killackey two or three months after his deposition. Carson also submitted a reply affidavit, in which he states that he did not mention the Killackey offer at his deposition because plaintiff's questions did not elicit that information.[3] 151 At his deposition, Killackey testified that Carson and Larkin offered him Davidson's position over a dinner meeting in the early 1990s, before Davidson's dismissal. Although Killackey could not definitively state the year of the offer, when asked how old his children were at the time of the offer, Killackey estimated that they were five years younger than they are now, thereby suggesting that he was offered Davidson's position five years ago, in 1992. Killackey further testified that he was surprised by the offer because the mailroom was outside his area of expertise and that he ultimately rejected the offer because it was a lateral move rather than a promotion.[4] The Brown Offer and the Withdrawal of the Grievance After Davidson was dismissed, Time's Human Resources Department was notified of the job opening. Carol Ducas, a director of staffing and development in that department, retained Milo Research, an executive search firm, to help identify minority applicants. Ducas explained that she retained Milo because she knew that ordinary channels such as referrals, Time's internal job listing, and unsolicited resume files would not generate a slate of qualified minority candidates. Ducas interviewed five minority applicants and one white applicant for the position. Carson then interviewed two of the minority applicants, as well as the one white applicant, who had been screened by Ducas. Lance Brown, a black male, was hired. In July 1993, several months after Brown was hired to replace Davidson, the Guild withdrew the grievance that it had filed over the hiring of whites for management positions in the mailroom. Guild Chairperson Key Martin testified at his deposition that the grievance was withdrawn because a minority (Brown) was hired. Martin also stated that the Guild's decision to withdraw the grievance "could well have happened without any interaction with management." ANALYSIS Summary Judgment Standard Motions for summary judgment are granted if there is no genuine issue of material fact and it is clear that the moving party is entitled to judgment as a matter of law. See PDK Labs, Inc. v. Friedlander, 103 F.3d 1105, 1111 (2d Cir.1997). The court must view the inferences to be drawn from the facts in the light most favorable to the party opposing the motion. See Lipton v. Nature Co., 71 F.3d 464, 469 (2d Cir.1995). However, a party cannot overcome a motion for summary judgment by relying on mere speculation as to the nature of the facts. See id. As this is a discrimination case, it is important to note that [a] victim of discrimination is ... seldom able to prove his or her claim by direct evidence and is usually constrained to rely on the cumulative weight of circumstantial evidence.... Consequently, in a Title VII action, where a defendant's intent and state of mind are placed in issue, summary judgment is ordinarily inappropriate. Rosen v. Thornburgh, 928 F.2d 528, 533 (2d Cir.1991) (citations omitted). On the other hand, "[t]he summary judgment rule would be rendered sterile ... if the mere incantation of intent or state of mind would operate as a talisman to defeat an otherwise valid motion." Meiri v. Dacon, 759 F.2d 989, 998 (2d Cir.), cert. denied, 474 U.S. 829, 106 S.Ct. 91, 88 L.Ed.2d 74 (1985). See also Meloff v. New York Life Ins. Co., 51 F.3d 372, 375 (2d Cir.1995); McLee v. Chrysler Corp., 38 F.3d 67, 68 (2d Cir.1994). 152 In this case, having reviewed the evidence with the awareness that discriminatory intent is often difficult to establish, I am nonetheless persuaded that Davidson's evidence is insufficient to create a fact issue as to the existence of discrimination. Davidson's Discrimination Claims In Title VII cases, at the summary judgment phase, the plaintiff must first prove a prima facie case that the adverse employment action occurred under circumstances giving rise to an inference of discrimination. McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802, 93 S.Ct. 1817, 1824, 36 L.Ed.2d 668 (1973). Once the plaintiff has proved a prima facie case, the employer must articulate a legitimate, non-discriminatory business rationale for its actions. See id. at 802-03, 93 S.Ct. at 1824-25. Upon such a showing, the burden shifts back to the plaintiff to prove that the allegedly legitimate rationale given was merely a pretext for discrimination. See id. at 804, 93 S.Ct. at 1825.[5] But, "a reason cannot be proved to be `a pretext for discrimination' unless it is shown both that the reason was false, and that discrimination was the real reason." St. Mary's Honor Ctr. v. Hicks, 509 U.S. 502, 515, 113 S.Ct. 2742, 2752, 125 L.Ed.2d 407 (1993) (emphasis in original). What this [St. Mary's holding] means in the summary judgment context is that the plaintiff must establish a genuine issue of material fact either through direct, statistical or circumstantial evidence as to whether the employer's reason for discharging [him or] her is false and as to whether it is more likely that a discriminatory reason motivated the employer to make the adverse employment decision. Gallo v. Prudential Residential Serv., 22 F.3d 1219, 1225 (2d Cir.1994) (emphasis in original). See Scaria v. Rubin, 117 F.3d 652 (2d Cir. 1997); Woroski v. Nashua Corp., 31 F.3d 105, 108-09 (2d Cir.1994). In this case, assuming arguendo that Davidson has made out a prima facie case, his action fails for the reason that he has not raised a genuine issue of fact on the issue of whether defendants' stated rationale for his dismissal was in fact a pretext for discrimination. The ultimate issue to be determined is whether plaintiff can establish that his race was a determinative factor motivating his dismissal. "The factfinder's disbelief of the reasons put forward by the defendant ... may, together with the elements of the prima facie case, suffice to show intentional discrimination." St. Mary's, 509 U.S. at 511, 113 S.Ct. at 2749. However, in this case, no reasonable jury could conclude that the reasons proffered by defendants are a cover for discrimination. Attempting to establish pretext, Davidson emphasizes, first, that his performance reviews at Time were consistently satisfactory or higher until the September 1991 review, when Carson rated his performance unsatisfactory. Significantly, however, the September 1991 review is the first review Davidson received following the shake-up of Distribution Services and the decision to replace Davidson's former supervisor, Varisco, with Carson. Varisco was relieved of his responsibility for Distribution Services because defendants were dissatisfied with his performance as a supervisor in the department. Accordingly, it is entirely unsurprising that Varisco's assessment of Davidson's capabilities as a manager in Distribution Services differed from Carson's assessment of Davidson's performance; and Varisco's positive reviews of Davidson's performance cannot raise a fact issue with regard to the credibility of Carson's negative reviews. See, e.g., Orisek v. Am. Institute of Aeronautics and Astronautics, 938 F.Supp. 185, 190-91 (S.D.N.Y. 1996). Davidson next asserts that, because he received a merit increase in April 1992 and a "purchasing award" in October 1992, Carson's complaints about his performance should be disbelieved. However, neither the merit increase nor the purchasing award raises an issue of fact as to Carson's evaluation of Davidson's performance. It is undisputed 153 that Davidson received the merit increase because Carson himself determined that Davidson's performance had improved significantly by November 1991. Thus, the merit increase does not call into question Carson's assessment of Davidson; on the contrary, it is a direct consequence of Carson's assessment at a given time. Similarly, that Davidson received an award together with four other members of a group who successfully negotiated agreements with Federal Express and UPS is insufficient to raise an issue of fact as to whether Carson's complaints about Davidson's performance are false. Finally, Davidson attempts to establish that defendants' rationale for his dismissal was pretextual by questioning the legitimacy of Carson's expectations with regard to deadlines and changes in the department. Notably, Davidson does not deny that he failed to meet deadlines and that he resisted Carson's suggestions; instead, he offers explanations designed to challenge the reasonableness of Carson's business determinations. Title VII may not be used as a vehicle for second-guessing an employer's business judgment; instead, plaintiff bears the burden of establishing that the employer imposed arbitrary or unreasonable demands as a cover for discrimination. See Scaria v. Rubin, 117 F.3d 652, 654; Montana v. First Federal S. & L. of Rochester, 869 F.2d 100, 106 (2d Cir.1989). Plaintiff has failed to meet that burden. In support of his contention that he was dismissed because of his race, Davidson argues that defendants fired him in order to appease Newspaper Guild members concerned about the shortage of minority employees in supervisory positions at Time. Davidson's argument hinges on the Guild's filing of a formal grievance in 1990, before Davidson's dismissal, and its withdrawal of that grievance when Davidson was replaced by a minority applicant. The problem with this argument is that the actions and statements of Guild members are not in themselves probative of defendants' state of mind. Davidson has presented no evidence of any behavior by defendants, or of any interactions between defendants and the Guild, establishing that defendants were affected in a material way by the Guild complaints. Indeed, in the face of the Guild pressure that is so heavily relied on by plaintiff, it is undisputed that defendants offered Davidson's position to Killackey, who is white. The only dispute in the record regarding the offer to Killackey is its timing. Carson and Larkin state that they offered Killackey the position after Davidson's termination in November 1992. Killackey likewise estimates that the offer was made five years ago, or in 1992, but asserts that it was made prior to Davidson's dismissal. Resolving this dispute in the light most favorable to plaintiff, and assuming that Killackey's recollection is accurate, the offer to Killackey nonetheless belies plaintiff's contention that defendants felt pressure to replace Davidson with a minority candidate as a result of the Guild complaints. The meetings cited by plaintiff as the primary source of pressure from the Guild occurred in April, May, and June of 1990, and the formal grievance was filed by the Guild prior to November 1990. Killackey has testified that he was offered Davidson's position roughly five years ago, an estimate which places the offer as occurring after both the meetings and the filing of the grievance. Thus, in spite of the Guild's complaints, defendants tried to replace Davidson with another white. As such, no reasonable juror could conclude that Davidson's dismissal was motivated by defendants' desire to appease Guild members by taking a supervisory position from a white employee in order to open the position for minority applicants. Finally, Davidson argues that Carol Ducas's use of an executive search firm to identify minority applicants evidences a discriminatory motive on the part of defendants. However, Ducas's race-conscious effort to ensure a balanced slate of candidates in no way establishes that the hiring of Davidson's replacement was race-based. Instead, it "merely indicates that those considered for [the position] would include [applicants] who were members of minority group," Silver v. City Univ. of New York, 947 F.2d 1021, 1022 (2d Cir.1991). That an employer attempted to ensure that candidates of all races had an 154 equal opportunity to vie for an available position is simply not evidence that the employer then relied on race as a determinative factor in deciding whom to hire. Thus, defendants' hiring of the executive search firm does not raise a genuine issue of material fact with regard to whether defendants' stated reasons for Davidson's dismissal are in fact a cover for discrimination. CONCLUSION All in all, Davidson has failed to produce any evidence from which a reasonable juror could conclude that defendants' stated rationale for his dismissal was pretextual. Accordingly, defendants' motion for summary judgment dismissing plaintiff's action is hereby granted. The Clerk is directed to enter judgment dismissing the complaint. SO ORDERED. NOTES [1] Although the date of the filing of the formal grievance is unclear, the record establishes that the first hearing regarding the grievance was held in November 1990. [2] At Larkin's deposition, he was asked whether "internal candidates" either had applied or were qualified for Davidson's position. In his reply affidavit, Larkin explains that "Killackey had never `applied' for this position and was not an `internal candidate' as I would usually understand that phrase because he was outside the Distribution Services Department and was not on a slate of candidates." Similarly, at his deposition, Carson was asked whether any internal candidates applied for or were interviewed for the position. In a reply affidavit, Carson notes that "Mr. Killackey did not apply for the position and I did not interview him for it. He had been reporting to me .... and I was familiar with his work." [3] "It is well settled in this circuit that a party's affidavit which contradicts his own prior deposition testimony should be disregarded on a motion for summary judgment." Mack v. United States, 814 F.2d 120, 124 (2d Cir.1987); see Hayes v. New York City Dept. of Corrections, 84 F.3d 614, 619 (2d Cir.1996). Nevertheless, "a material issue of fact may be revealed by [a party's] sworn testimony that amplifies or explains, but does not merely contradict, [that party's] prior testimony, especially where the party was not previously asked sufficiently precise questions to elicit the amplification or explanation." Rule v. Brine, Inc., 85 F.3d 1002, 1011 (2d Cir.1996). Because defendants' affidavits in this case are arguably consistent with their deposition testimony, in the interests of justice I reopened discovery to allow plaintiff to depose Killackey. [4] Without seeking leave of the court, defendants have submitted an affidavit from Killackey supplementing his deposition testimony; and, in turn, plaintiff has submitted an affidavit responding to Killackey's affidavit. I have considered neither of those two affidavits in deciding the motion before me. [5] The same analysis applies to Davidson's claims under the New York Human Rights Law, see Sutera v. Schering Corp., 73 F.3d 13, 16 n. 2 (2d Cir.1995), and under 42 U.S.C. § 1981. See Hudson v. Int'l Business Machines Corp., 620 F.2d 351, 354 (2d Cir.), cert. denied, 449 U.S. 1066, 101 S.Ct. 794, 66 L.Ed.2d 611 (1980).	{ "pile_set_name": "FreeLaw" }
453 F.2d 9 UNITED STATES of America, Plaintiff and Appellee,v.Juan Jose CELIS, Appellant. No. 71-1890. United States Court of Appeals,Ninth Circuit. Dec. 17, 1971. Mobley M. Milam, San Diego, Cal., for appellant. Harry D. Steward, U. S. Atty., San Diego, Cal., Stephen G. Nelson, Asst. U. S. Atty. & Acting Chief, Criminal Div., Thomas M. Coffin, Asst. U. S. Atty., San Diego, Cal., for plaintiff and appellee. Before CHAMBERS, DUNIWAY and TRASK, Circuit Judges. PER CURIAM: 1 The conviction for the transportation and concealing of marijuana is affirmed. 2 We find the evidence (here challenged) as to knowledge was sufficient. 3 The admission of some real evidence (objects) not disclosed previously to the defendant by the government was within the trial court's discretion. It was not the kind of thing that required research to rebut, if it was to be rebutted. 4 We find no error in the government's argument or in the instructions.	{ "pile_set_name": "FreeLaw" }
434 F.2d 386 UNITED STATES of America ex rel. Rogelio Nieves NEGRON,Petitioner-Appellee,v.The STATE OF NEW YORK, Respondent-Appellant. No. 112, Docket 34885. United States Court of Appeals, Second Circuit. Argued Oct. 15, 1970.Decided Oct. 15, 1970. Hillel Hoffman, Asst. Atty. Gen. (Louis J. Lefkowitz, Atty. Gen., State of N.Y., and Samuel A. Hirshowitz, First Asst. Atty. Gen., on the brief), for respondent-appellant. Robert Hermann, New York City (Milton Adler, The Legal Aid Society, New York City, on the brief), for petitioner-appellee. Before LUMBARD, Chief Judge, CLARK, Associate Justice* and KAUFMAN, Circuit Judge. IRVING R. KAUFMAN, Circuit Judge: 1 We affirmed in open court the granting of Negron's petition for a writ of habeas corpus by Judge Bartels. Because the issue decided by us will have important precedential value, we now set forth the reasons for our holding that the lack of adequate translation for Negron of those portions of his 1967 Suffolk County murder trial which were conducted in English rendered the trial constitutionally infirm. 2 Negron, a native of Arecibo, Puerto Rico, first emigrated to this country sometime between 1963 and 1965, at which time he worked for several months as a potato packer, before returning to his homeland. In 1966 Negron returned here to the same employment, living on a small farm with three co-workers in Riverhead, New York. He had been in this country for the second time only a few months when on the afternoon of August 10, 1966, a verbal brawl between Negron and one of his house-mates, Juan DelValle, both of whom had consumed a substantial amount of alcohol, resulted in the fatal stabbing of DelValle. 3 Within an hour of DelValle's death Negron had been arrested and charged with murder. Subsequently Negron was convicted after a jury trial of murder in the second degree and sentenced on March 10, 1967, to from twenty years to life imprisonment. After exhausting his opportunities for direct review,1 Negron filed a pro se application for a writ of habeas corpus in the Eastern District of New York on June 25, 1969. Judge Bartels in a thorough opinion, Negron v. State of New York, 310 F.Supp. 1304 (E.D.N.Y.1970), granted Negron his release, subject however to the state's prerogative to appeal or retry Negron within thirty days. The state then took this appeal within the requisite time. 4 The government does not dispute that at the time of his trial, Negron, a 23-year-old indigent with a sixth-grade Puerto Rican education, neither spoke nor understood any English. His court-appointed lawyer, Lloyd H. Baker, spoke no Spanish. Counsel and client thus could not communicate without the aid of a translator.2 Nor was Negron able to participate in any manner in the conduct of his defense, except for the spotty instances when the proceedings were conducted in Spanish, or Negron's Spanish words were translated into English, or the English of his lawyer, the trial judge, and the witnesses against him were gratuitously translated for Negron into Spanish. 5 The times during pre-trial preparation and at trial when translation made communication possible between Negron and his accusers, the witnesses, and the officers of the court were spasmodic and irregular. Thus, with the aid of an interpreter, his attorney conferred with Negron for some twenty minutes before trial at the Suffolk County jail. Negron's own testimony at trial, and that of two Spanish-speaking witnesses called by the state, was simultaneously translated into English for the benefit of the court, prosecution and jury by Mrs. Elizabeth Maggipinto, an interpreter employed in behalf of the prosecution. At the commencement of the trial, Mrs. Maggipinto translated for Negron the trial court's instructions with respect to Negron's right to make peremptory challenges to prospective jurors. And, during two brief recesses in the course of Negron's four-day trial, Mrs. Maggipinto met with Negron and Baker for some ten to twenty minutes and merely summarized the testimony of those witnesses who had already testified on denial and cross-examination in English.3 It also appears from the record that when Mrs. Maggipinto was not translating Spanish to English for the court, she would return to her home and remain there 'on call.' When she was present in the courtroom, she never translated English testimony for Negron while the trial was in progress.4 6 To Negron, most of the trial must have been a babble of voices. Twelve of the state's fourteen witnesses testified against him in English. Apart from Mrs. Maggipinto's occasional ex post facto brief resumes-- the detail and accuracy of which is not revealed in any record-- none of this testimony was comprehensible to Negron. Particularly damaging to Negron's defense was the testimony of Joseph Gallardo, an investigator from the Suffolk County District Attorney's office. Gallardo testified both at the Huntley hearing and at trial-- each time in English, although he also was able to speak Spanish-- that on the morning after the death of DelValle, and after Gallardo had given him the Miranda warnings, Negron admitted that he 'killed (DelValle) because he called me a cabron (cuckold).' Negron denied at the hearing and at trial that he had made any such statement. Negron's version of the killing was that DelValle had indeed insulted Negron-- but DelValle, not Negron, then produced a kitchen knife. In an ensuing scuffle, DelValle was accidentally killed. I. 7 We have recently had occasion to comment that there is surprisingly sparse discussion in the case law of the right to a translator or interpreter at criminal trials.5 We agree, however, with Judge Bartels that in the circumstances of this case 'regardless of the probabilities of his guilt, Negron's trial lacked the basic and fundamental fairness required by the due process clause of the Fourteenth Amendment.' Indeed, the government does not dispute the nearly self-evident proposition that an indigent defendant who could speak and understand no English would have a right to have his trial proceedings translated so as to permit him to participate effectively in his own defense, provided he made an appropriate request for this aid.6 8 It is axiomatic that the Sixth Amendment's guarantee of a right to be confronted with adverse witnesses, now also applicable to the states through the Fourteenth Amendment, Pointer v. Texas, 380 U.S. 400, 85 S.Ct. 1065, 13 L.Ed.2d 923 (1965), includes the right to cross-examine those witnesses as an 'an essential and fundamental requirement for the kind of fair trial which is this country's constitutional goal.' Id. at 405, 85 S.Ct. at 1068. See also, Bruton v. United States, 391 U.S. 123, 128, 88 S.Ct. 1620, 20 L.Ed.2d 476 (1968); Barber v. Page, 390 U.S. 719, 725, 88 S.Ct. 1318, 20 L.Ed.2d 255 (1968); Douglas v. Alabama, 380 U.S. 415, 418, 85 S.Ct. 1074, 13 L.Ed.2d 934 (1965); Mattox v. United States, 156 U.S. 237 242-243, 15 S.Ct. 337, 39 L.Ed. 409 (1895). But the right that was denied Negron seems to us even more consequential than the right of confrontation. Considerations of fairness, the integrity of the fact-finding process, and the potency of our adversary system of justice forbid that the state should prosecute a defendant who is not present at his own trial, see, e.g., Lewis v. United States, 146 U.S. 370, 372, 13 S.Ct. 136, 36 L.Ed. 1011 (1892), unless by his conduct he waives that right. See, e.g., Illinois v. Allen, 397 U.S. 337, 90 S.Ct. 1057, 25 L.Ed. 353 (1968). And it is equally imperative that every criminal defendant-- if the right to be present is to have meaning-- possess 'sufficient present ability to consult with his lawyer with a reasonable degree of rational understanding.' Dusky v. United States, 362 U.S. 402, 80 S.Ct. 788, 4 L.Ed.2d 824 (1962) (per curiam).7 Otherwise, 'the adjudication loses its character as a reasoned interaction * * * and becomes an invective against an insensible object.' Note, Incompetency to Stand Trial, 81 Harv.L.Rev. 454, 458 (1969). 9 However astute Mrs. Maggipinto's summaries may have been, they could not do service as a means by which Negron could understand the precise nature of the testimony against him during that period of the trial's progress when the state chose to bring it forth. Negron's incapacity to respond to specific testimony would inevitably hamper the capacity of his counsel to conduct effective cross-examination. Not only for the sake of effective cross-examination, however, but as a matter of simple humaneness, Negron deserved more than to sit in total incomprehension as the trial proceeded. Particularly inappropriate in this nation where many languages are spoken is a callousness to the crippling language handicap of a newcomer to its shores, whose life and freedom the state by its criminal processes chooses to put in jeopardy. II. 10 Nor are we inclined to require that an indigent, poorly educated Puerto Rican thrown into a criminal trial as his initiation to our trial system, come to that trial with a comprehension that the nature of our adversarial processes is such that he is in peril of forfeiting even the rudiments of a fair proceeding unless he insists upon them. Simply to recall the classic definition of a waiver-- 'an intentional relinquishment or abandonment of a known right,' Johnson v. Zerbst, 304 U.S. 458, 464, 58 S.Ct. 1019, 1023, 82 L.Ed. 1461 (1938)-- is a sufficient answer to the government's suggestion that Negron waived any fundamental right by his passive acquiescence in the grinding of the judicial machinery and his failure to affirmatively assert the right. For all that appears, Negron, who was clearly unaccustomed to asserting 'personal rights' against the authority of the judicial arm of the state, may well not have had the slightest notion that he had any 'rights' or any 'privilege' to assert them. At the hearing before Judge Bartels, Negron testified: 'I knew that I would have liked to know what was happening but I did not know that they were supposed to tell me.' Of obvious relevance here is the Supreme Court's logic in Pate v. Robinson, 383 U.S. 375, 384, 86 S.Ct. 836, 841, 15 L.Ed.2d 815 (1966) that 'it is contradictory to argue that a defendant may be incompetent, and yet knowingly or intelligently waive his right to have the court determine his capacity to stand trial.' 11 Moreover, we need not decide on this record whether Negron's lawyer by his silence could effectively have waived Negron's right to appropriate access to the proceedings by means of adequate translation. There is no indication that Baker's failure to ask for an interpreter to assist Negron was any part of his trial strategy. Cf. Wilson v. Bailey, 375 F.2d 663 (4th Cir.1967). Nor could the motive for such an otherwise self-defeating strategy have been to deviously set up the case for reversal on appeal. As the history of Negron's own case attests, the federal right to a state provided translator is far from settled. Thus, Negron's counsel would have been on tenuous grounds for believing that the present claim would prevail. We would, in any event, be reluctant to find a knowing, intelligent waiver of so ill-defined a right.8 12 Moreover, Judge Bartels found it 'obvious that the court and the District Attorney were fully aware of Negron's disabilities.' The Supreme Court held in Pate that when it appears that a defendant may not be competent to participate intelligently in his own defense because of a possible mental disability, the trial court must conduct a hearing on the defendant's mental capacity. Negron's language disability was obvious, not just a possibility, and it was as debilitating to his ability to participate in the trial as a mental disease or defect. But it was more readily 'curable' than any mental disorder. The least we can require is that a court, put on notice of a defendant's severe language difficulty, make unmistakably clear to him that he has a right to have a competent translator assist him, at state expense if need be, throughout his trial.9 * United States Supreme Court, retired, sitting by designation 1 Petitioner's conviction was affirmed without opinion by the Appellate Division, Second Department on April 22, 1968, 29 A.D.2d 1050. Leave to appeal was denied by the New York Court of Appeals on July 12, 1968. Certiorari was denied by the United States Supreme Court on June 2, 1969. Negron v. New York, 395 U.S. 936, 89 S.Ct. 2000, 23 L.Ed.2d 452 2 At the hearing before Judge Bartels, Baker testified that he 'was not able to speak with' Negron 'at all' without an interpreter 3 Negron testified before Judge Bartels below that he could not recall these conferences, but both Baker and Mrs. Maggipinto attested to their occurrence 4 Indeed, at one point Negron's own testimony was postponed because Mrs. Maggipinto had been sent home mistakenly 5 United States v. Desist, 384 F.2d 889, 901 (2d Cir. 1967), aff'd 394 U.S. 244, 89 S.Ct. 1030, 22 L.Ed.2d 248 (1968) 6 See Terry v. State, 21 Ala.App. 100, 105 So. 386 (1925) (defendant was a deafmute); Garcia v. State, 151 Tex.Cr.R. 593, 210 S.W.2d 574 (1948); State v. Vasquez, 101 Utah 444, 121 P.2d 903 (1942) (defendant spoke 'broken English') 7 See also Wilson v. United States, 129 U.S.App.D.C. 107, 391 F.2d 460, 462 (1968), quoting with approval, United States v. Wilson, 263 F.Supp. 528, 533 (D.C.1966) (due process requires that defendant have a 'present ability to follow the * * * proceedings * * * and discuss them rationally with his attorney') 8 See United States v. Liguori, 430 F.2d 842 (2d Cir., filed July 17, 1970) (defendant 'cannot be faulted for failing to anticipate the action of the Supreme Court' subsequently taken in Leary v. United States, 395 U.S. 6, 89 S.Ct. 1532, 23 L.Ed.2d 57 (1969)) 9 The cases primarily relied on by the government are readily distinguishable. In Desist, defendant was clearly not indigent and he had retained the services of a law firm one of whose partners spoke French, as did the defendant, and English. In that case 'the record clearly show(ed) that the judge believed the defense was not hindered by a communications barrier.' 384 F.2d at 902 n. 31. In Cervantes v. Cox, 350 F.2d 855 (10th Cir. 1965), similarly, the court endorsed the trial judge's finding that appellant was 'completely aware of all the proceedings.' Id. at 855-856. In Gonzalez v. People of the Virgin Islands, 109 F.2d 215, 217 (3rd Cir. 1940), it simply did not seem to the court 'that defendants were unable to speak or understand English.' In view of the importance of Gallardo's testimony and the large number of other witnesses who testified in English against Negron, the denial of so important a right to Negron cannot be regarded as 'harmless.'	{ "pile_set_name": "FreeLaw" }
F I L E D United States Court of Appeals Tenth Circuit UNITED STATES COURT OF APPEALS JAN 29 2003 TENTH CIRCUIT PATRICK FISHER Clerk UNITED STATES OF AMERICA, Plaintiff - Appellee, No. 02-1026 v. D.C. No. 94-CR-321-Z (D. Colorado) JAMES MCFRANCIS CRUMB, JR., Defendant - Appellant. ORDER AND JUDGMENT * Before KELLY, McKAY, and MURPHY, Circuit Judges. ** Defendant-Appellant James McFrancis Crumb, Jr. appeals from the revocation of his supervised release which resulted in a sentence of 14 months imprisonment and an order to pay the balance of previously-ordered restitution. We have jurisdiction under 28 U.S.C. § 1291 to review the revocation and conclude that the district court did not abuse its discretion in revoking his release. * This order and judgment is not binding precedent, except under the doctrines of law of the case, res judicata, and collateral estoppel. This 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. ** After examining the briefs and the appellate record, this three-judge panel has determined unanimously that oral argument would not be of material assistance in the determination of this appeal. See Fed. R. App. P. 34(a); 10th Cir. R. 34.1(G). The cause is therefore ordered submitted without oral argument. We lack jurisdiction to review the resulting sentence because it is within the applicable guideline range and therefore dismiss that portion of the appeal. Background In 1995, after pleading guilty to one count of escape and one count of bank fraud, Mr. Crumb was sentenced to 37 months of imprisonment and five years of supervised release and was ordered to pay $51,844.96 in restitution. During his term of supervised release, Mr. Crumb was arrested for alleged violations of the conditions of his release, including two counts of violation of law (based upon state court charges of theft, criminal impersonation and forgery), three counts of drug use and one count of failure to report an arrest. See 18 U.S.C. § 3583(e), (g). The parties agreed to withdraw the first two counts of violation of law. At the hearing before the district court, Mr. Crumb admitted to the three counts of drug use and the count of failure to report an arrest. On the basis of evidence presented at the hearing, the district court revoked supervised release, imposed a 14-month sentence of imprisonment and ordered Mr. Crumb to pay the balance of his restitution in the amount of $50,245.00. Mr. Crumb appealed, and we now affirm. Mr. Crumb’s counsel, the Federal Public Defender, has submitted an Anders brief and a motion to withdraw from representation. See Anders v. -2- California, 386 U.S. 738, 744 (1967). Counsel’s brief acknowledges that the revocation of supervised release on the basis of the admitted drug use and failure to report an arrest was within the district court’s discretion. Aplt. Br. at 7. Furthermore, Counsel’s brief suggests that because Mr. Crumb’s sentence was within the guideline range set forth in U.S.S.G. § 7B1.4, this court lacks jurisdiction to review the sentence. Aplt. Br. at 9. Although afforded the opportunity, Mr. Crumb has not filed a response to the brief and motion submitted by counsel. After review of the record and counsel’s brief, we conclude there are no meritorious issues for appeal. The district court did not abuse its discretion based on its findings of four Grade C violations that were admitted by Mr. Crumb at the hearing. See 18 U.S.C. § 3583(e), (g); U.S.S.G. § 7B1.1(a)(3) (defining Grade C violations); United States v. McAfee, 998 F.2d 835, 837 (10th Cir. 1993) (abuse of discretion standard). None of the underlying facts regarding the Grade C violations were contested at the hearing, and none of the facts are now contested. When a district court finds a Grade C violation, it may revoke supervised release or extend its term or modify its condition. U.S.S.G. § 7B1.3(a)(2). In Mr. Crumb’s case, the sentencing range suggested by the guidelines is 8-14 months of imprisonment. U.S.S.G. §§ 7B1.3(b), 7B1.4(a). The general rule is that 18 U.S.C. § 3742(a) does not allow an appeal “because of a claim that a particular -3- sentence is draconian.” United States v. Garcia, 919 F.2d 1478, 1479-80 (10th Cir. 1990). Although § 7B1.4 is merely advisory rather than mandatory in the context of a revocation of supervised release, see United States v. Hurst, 78 F.3d 482 (10th Cir. 1996), the jurisdictional rules surrounding § 3742(a) apply in this context. Section 3742(a) prescribes the conditions under which a defendant may appeal a final sentence, and its language does not limit its application to the context of sentences imposed immediately after conviction. We see no reason to treat the two contexts differently. Thus, we lack appellate jurisdiction to review the district court's imposition of the 14-month sentence as it is within the range suggested by § 7B1.4. See United States v. Norberto, No. 97-3003, 1997 WL 375362 at 1 (10th Cir. July 8, 1997) (unpublished); but see United States v. Calvin, No. 00-1112, 2000 WL 1790028 at 2 (10th Cir. Nov. 29, 2000) (unpublished) (relying on United States v. Sweeney, 90 F.3d 55, 57 (2d Cir. 1996) and concluding that receipt of a term within the sentencing range does not preclude appellate review). In light of the foregoing, we GRANT counsel’s motion to withdraw, AFFIRM the revocation of supervised release, and DISMISS the appeal of the sentence. Entered for the Court Paul J. Kelly, Jr. Circuit Judge -4-	{ "pile_set_name": "FreeLaw" }
937 F.2d 602Unpublished Disposition 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.AMSOUTH INVESTMENT SERVICES, INCORPORATED, Plaintiff-Appellee,v.Ronald E. PHILLIPS, Defendant-Appellant. No. 90-1741. United States Court of Appeals, Fourth Circuit. Argued Feb. 6, 1991.Decided July 3, 1991. Appeal from the United States District Court for the District of South Carolina, at Greenville. William M. Catoe, Jr., Magistrate Judge. (CA-89-856-6-3K) Curtis W. Stodghill, Dobson & Dobson, Greenville, S.C., for appellant. Bradford W. Wyche, Wyche, Burgress, Freeman & Parham, P.C., Greenville, S.C., for appellee. D.S.C. AFFIRMED. Before K.K. HALL and MURNAGHAN, Circuit Judges, and JACKSON L. KISER, United States District Judge for the Western District of Virginia, sitting by designation. OPINION PER CURIAM: 1 This action arises from the mistaken payment of money by the plaintiff-appellee, AmSouth Investment Services, to the defendant-appellant, Ronald E. Phillips. In the lower court, the U.S. Magistrate Judge granted summary judgment in favor of AmSouth and ordered that Phillips repay AmSouth $76,582.77, plus interest. Motions for reconsideration by both parties were denied by the magistrate judge. Phillips now appeals the grant of summary judgment. Because we find no error in the magistrate judge's order, we affirm his decision. Background 2 In February 1984, Phillips bought 10,000 shares of Prosaca stock for $1,200 from United Financial Investments (UFI), the plaintiff-appellee's predecessor in interest. Beginning in September, 1986, the monthly statements sent to Phillips mistakenly indicated that he owned 10,000 shares of Property Trust of America (PTA). At the time, PTA was selling for roughly 100 times what Prosaca was selling for, however, the price was not reflected on the statements sent to the appellant. After AmSouth acquired UFI in 1987, the monthly statements sent to Phillips indicated the value of the PTA stock mistakenly credited to Phillips' account--over $10 per share. In September 1987, Phillips received a $2,000 dividend check from the PTA stock. Upon receipt of the check, Phillips inquired with AmSouth and was informed that he did in fact own the stock, at which point Phillips began requesting AmSouth to liquidate his PTA interest. AmSouth completely liquidated Phillips' putative interest in PTA in November, 1987, and a total of $86,724.27 was credited to Phillips' account. Phillips invested approximately half of the proceeds from the liquidation in stocks which subsequently lost much of their value; he used the remainder of the money to pay income taxes and business debts. Later in November, AmSouth discovered the error and demanded reimbursement from Phillips; Phillips refused, so AmSouth filed this action. 3 After considering AmSouth's motion for summary judgment, the magistrate judge notified the parties by letter that he was inclined to grant the motion, but was concerned about Phillips' ability to get a refund of the capital gains taxes he had incurred in liquidating his putative PTA interest. The Court requested Phillips to indicate the amount of taxes he had paid so that amount could be deducted from the judgment. After a month passed without either party responding to the magistrate judge's letter, he granted summary judgment in favor of AmSouth. Discussion 4 Rule 56 provides that summary judgment should be granted where "there is no genuine issue as to any material fact and ... the moving party is entitled to judgment as a matter of law." Fed.R.Civ.Pro. 56(c). Our review of the lower court's grant of summary judgment is de novo, therefore, we must reverse the lower court if the record reveals an unresolved issue of material fact or if the law was applied to the facts incorrectly. Helm v. Western Maryland Ry. Co., 838 F.2d 729, 734 (4th Cir.1988). On appeal, the record must be viewed in a light most favorable to the party opposing the motion. Id. 5 With that in mind, we turn to the law of unjust enrichment and restitution. There is no dispute that the substantive law of South Carolina applies to this action. See Erie R.R. v. Tompkins, 304 U.S. 64 (1938). South Carolina follows the common law rule of restitution as set forth in the Restatement. Pilot Life Ins. v. Cudd, 208 S.C. 6, 14, 36 S.E.2d 860, 863 (1945). The general rule is that: 6 A person who has paid another an excessive amount of money because of an erroneous belief induced by a mistake of fact that the sum paid was necessary for the discharge of a duty, for the performance of a condition, or for the acceptance of an offer, is entitled to restitution of the excess. 7 Restatement of Restitution Sec. 20 (1937). However, the right to restitution is terminated where, after the payment is made, the payee's circumstances have changed such that to require restitution would be inequitable. Id. at Sec. 142. 8 The record tends to indicate that AmSouth was negligent in incorrectly crediting Phillips' account. However, the question of AmSouth's negligence need not be decided in order to dispose of this matter. Negligence alone does not preclude a party from recovering money mistakenly paid to another. Atlantic Coast Line RR Co. v. Jacob S. Schirmer & Sons, 87 S.C. 309, 69 S.E. 439 (1910). The dispositive issue is whether, after the overpayment, Phillips so changed his position that it would be inequitable to require him to refund the money. 9 Generally, only a change of circumstances which is detrimental to the payee, material, and irrevocable will be sufficient to preclude restitution. See, e.g., Jonklaas v. Silverman, 117 R.I. 691, 698, 370 A.2d 1277, 1281 (1977); First Nat'l City Bank v. McManus, 29 N.C.App. 65, 71, 223 S.E.2d 554, 558 (N.C.App.1976); Westamerica Securities, Inc. v. Cornelius, 214 Kan. 301, 520 P.2d 1262 (1974); Annotation, What Constitutes Change of Position by Payee so as to Preclude Recovery of Payment Made Under Mistake, 40 A.L.R.2d 997, 1001 (1955). In the present case, Phillips used the proceeds from the sale of PTA stock to purchase additional securities, to pay business expenses, and to pay taxes. It is settled law that use of money received by mistake to pay expenses, whether personal or business expenses, shall not suffice to create a material change of position. See, e.g., Messersmith v. G.T. Murray & Co., 667 P.2d 655 (Wyo.1983); Westamerica Securities, Inc. v. Cornelius, supra; Ohio Co. v. Rosemeier, 32 Ohio App.2d 116, 288 N.E.2d 326 (1972); Picotte v. Mills, 200 Mo.App. 127, 203 SW 825 (1918); Donner v. Sackett, 251 Pa. 524, 97 A. 89 (1961); Restatement of Restitution Sec. 142 comment b, illustration 6 (1937). Similarly, it has been held that the payment of taxes does not create a material change of position, First Nat'l City Bank v. McManus, 29 N.C.App. 65, 223 S.E.2d 554 (1976), nor does the purchase of securities which subsequently lose a portion of their value constitute a material change, see Smith v. Rubel, 140 Or. 422, 13 P.2d 1078 (1932). We are confident that South Carolina would follow the common law principles outlined above, see Town of Bennetsville v. Bledsoe, 226 S.Ct. 214, 84 S.E.2d 554 (1954). Therefore, we find that Phillips has not materially, irrevocably changed his circumstances such that it would be inequitable to order him to repay the money. Accordingly, the judgment of the lower court is affirmed. 10 AFFIRMED.	{ "pile_set_name": "FreeLaw" }
177 U.S. 332 (1900) MINNEAPOLIS AND ST. LOUIS RAILWAY COMPANY v. GARDNER. No. 160. Supreme Court of United States. Submitted March 5, 1900. Decided April 9, 1900. ERROR TO THE SUPREME COURT OF THE STATE OF MINNESOTA. 339 Mr. William Strauss for plaintiffs in error. Mr. Albert E. Clarke, Mr. W.W. Dudley and Mr. L.T. Michener were on his brief. Mr. F.W.M. Cutcheon for defendant in error. 340 MR. JUSTICE McKENNA, after making the foregoing statement, delivered the opinion of the court. To sustain the motion to dismiss for want of jurisdiction, the defendant in error contends that the Federal question raised here was not that raised in the court below, and therefore cannot be entertained, and that besides there was a question not Federal decided by the court sufficient to support its judgment. (1.) No right under the Constitution of the United States was claimed in the answer. But the protection of section 10, article 1, and the Fourteenth Amendment of that instrument, was invoked in the assignment of errors on appeal to the Supreme Court and urged upon its consideration. It is true they claimed the law of 1853 as the contract and not explicitly that of 1881. But they also claimed that the act of 1881 did not create a new corporation, and whether it did or not, that the act continued the immunity from liability for the corporate debts to the stock and stockholders of the consolidated corporation. We think this makes substantial identity between the Federal question in the Supreme Court of the State and in this court. (2.) But it is said the state court did not decide the Federal question, but decided that the act of 1881 created a new corporation, which became subject to the constitutional provision imposing liability upon stockholders for corporate debts, and that the court rested its judgment on that construction. The court said: "Whatever may be the liability of the several (constituent) corporations we need not inquire, because the liability here sought to be enforced is one against individuals who have been and are stockholders in the new corporation." And again: "Other questions have been raised and discussed by the respective counsel, but a decision upon them by this court in this action is entirely unnecessary, and we express no opinion thereon." This was in effect to deny the existence of the contract claimed by plaintiffs in error. But it is the duty of this court to decide for itself the fact of contract and its impairment, and the motion to dismiss must, therefore, be denied. 341 The territorial act of 1853 by which the Minnesota Western Railroad was incorporated is claimed primarily to be the contract which is impaired. It gave immunity to the stockholders of that company from liability for the corporate debts, or rather did not impose such liability. It is claimed that the constitution of the State of 1858 violated this contract. It imposes liability upon each shareholder of any corporation to the amount of stock held or owned by him. It is self-executing. Willis v. Mabon, 48 Minnesota, 140. The act of 1881 is also claimed as a contract which became binding on the State by the acceptance of its provisions by the several railroad companies, and is impaired by the application of the constitution of the State. If the Minnesota Western Railroad or its stockholders, or any of the other railroad companies or their stockholders, were parties to this suit, the questions presented would be simpler. But neither of the companies is party to the suit nor are the stockholders parties. Their rights are asserted to be transferred to the plaintiffs in error by virtue of the act of 1881. The argument is that prior to the adoption of the state constitution the stockholders of the original corporation created by the act of 1853 were exempt from personal liability for corporate indebtedness; that prior to consolidation, under the act of 1881, the stockholders of the constituent companies were also exempt. It is hence contended that it is immaterial whether the Minneapolis Railroad Company is the original of that name chartered by the act of 1853, or a new corporation created by the consolidation. If it is identical, it is argued, with the original company its stockholders are exempt, because its charter contract is older than the constitution of the State. If it is a new company its stockholders are nevertheless exempt, because it is the settled law in Minnesota that its legislature may transmit existing franchises, immunities and exemptions vested in one corporation to a new corporation, although it could not grant new franchises of the same class to such corporation. And that the legislature has exercised this power and specifically vested in the consolidated company, first, all the franchises, privileges and immunities of each of the constituent companies, 342 and, second, the particular privileges, exemptions and immunities granted to the Minnesota Western Railroad Company. We think that there is no doubt whatever that the act of 1881 created a new corporation. It is so designated, not only expressly but by distinction from the old corporations. The original Minneapolis and St. Louis Railway Company was given power (section 9) to acquire by lease or purchase other railroad lines or consolidate with certain other railroads. (Section 10.) It chose the latter, and the conditions of the consolidation are prescribed. The consolidation is to be accomplished by an agreement of the directors of the companies proposing to consolidate, and the agreement is to provide the terms and mode of carrying the same into effect, the name of "the new corporation, which may be the name of either corporation party thereto, or any other name," the number, names and residences of the directors and other officers, the amount of capital stock and the number of shares into which it is to be divided, and the classes and par value, the manner of converting the stock of the consolidating companies into that of the new corporation, and the manner of compensating the stockholders of the old corporations who declined to convert their stock into the stock of the new corporation, and many other details. Section 11 is as follows: "Upon the approval of such agreement and act of consolidation, as hereinbefore provided, and upon the filing of the same, or a copy thereof, in the office of the secretary of State, the said corporations, parties thereto, shall be deemed and taken to be one corporation, by the name provided in the said agreement and act, and the stock of the new corporation issued under the terms of such agreement and act of consolidation in exchange for the stock of the former companies, shall be deemed and taken as lawful stock, and subject only to such further payments, calls or assessments, if any, as may be mentioned in the said consolidation agreement, and such new corporation shall possess all the powers, rights and franchises conferred upon each of its constituent corporations, and shall be subject to all the restrictions and duties imposed by the laws of the State." There can be no doubt, therefore, that a new corporation 343 was created with new stockholders, and the case is brought in close similarity to Shields v. Ohio, 95 U.S. 319. In that case as in this there was a consolidation of railroad companies, and it was held a new corporation was formed. In that case as in this one of the companies claimed a special right under its charter (the right to charge such tolls as it might deem "reasonable,") and its transmission to the new corporation by the provision of the act authorizing consolidation, which declared: "And such new corporation shall possess all the powers, rights and franchises conferred upon such two or more corporations by the several acts incorporating the same, or relating thereto respectively, and shall be subject to all the duties imposed by such acts, so far as the same may be consistent with the provisions of this act." The claim was rejected. Mr. Justice Swayne, speaking for the court, said: "The legislature had provided for the consolidation. In each case before it took place the original companies existed, and were independent of each other. It could not occur without their consent. The consolidated company had then no existence. It could have none while the original corporation subsisted. All the old and the new could not co-exist. It was a condition precedent to the existence of the new corporation that the old ones should first surrender their vitality and submit to dissolution. That being done, eo instanti the new corporation came into existence. But the franchise alone to be a corporation would have been unavailing for the purposes in view. "There is a material difference between such an artificial creation and a natural person. The latter can do anything not forbidden by law. The former can do only what is authorized by its charter. Railroad Company v. Harris, 12 Wall. 65. It was, therefore, indispensable that other powers and franchises should be given. This was carefully provided for. The new organization took the powers and faculties designated in advance in the acts authorizing the consolidation no more and no less. It did not acquire anything by mere transmission. It took everything by creation and grant. The language was 344 brief, and it was made operative by reference. But this did not affect the legal result. A deed inter partes may be made as effectual by referring to a description elsewhere as by reciting it in full in the present instrument. The consequence is the same in both cases." In the case at bar, however, the grant to the new corporation is claimed to be not only of the franchises of the constituent companies, but of their "exemptions" not only of the franchises of the original Minnesota and St. Louis Railway Company, but of its "exemptions and immunities." But what franchises, exemptions and immunities? The designation is definite those of "each of said corporations," those "hitherto granted to the Minneapolis and St. Louis Railway Company" not those of or those granted to the stockholders of either company. And the distinction must be observed the distinction between a corporation and its stockholders. It is made in many cases. This court has recognized it for the purposes of taxation. To judge of the intention of the legislature, whether it is in accordance with or against the policy and provisions of the constitution of the State, the distinction ought to be recognized. The exemption of stockholders from the payment of corporate debts or their liability to pay them, (individual liability,) is the concern of the stockholders and the corporate creditors. We do not mean to say that such an exemption may not be secured by the charter of a corporation and protected to its stockholders by the Constitution of the United States from impairment by subsequent state legislation. But we do mean to say that in a State having a constitutional provision imposing liability on stockholders, if the legislature intended that those of a new corporation created by it should be exempt it would express the intention directly, and not commit it to disputable inference from provisions which apply by name to the corporation. The question is as to the intention of the legislature, and in ascertaining that intention it must be remembered that the act of 1853 did not grant immunity to the stockholders of the Minnesota Western Railroad from liability. The immunity resulted because liability was not imposed, and this legal right of *345 the stockholders of that corporation, we do not think, can be said to have been transmitted to the stockholders of the new corporation created by the act of 1881 by the grant to it of the "immunities heretofore granted to the Minneapolis and St. Louis Railway Company." Besides, the grant of power to the new corporation had adequate purpose. As was said in Shields v. Ohio, supra, powers and faculties were necessary to be bestowed upon the new organization, and this could be done directly, as it was to a great extent, or by reference, and would be supposed to be done in subordination to constitutional restrictions. Nor does the provision of section 14, which makes the new corporation subject to the general laws of the State, except as to the privileges, franchises, exemptions and immunities hitherto granted to the Minnesota and St. Louis Railway Company, conflict with the supposition. That provision had its explanation in the previous laws applying to that company. After its incorporation in 1853 the Minnesota Western did nothing, and nothing was done in pursuance of the purpose of its incorporation until after the act of 1870, authorizing a change of its name to the Minnesota and St. Louis Railway Company. That act gave it new powers, authorized the creation and issuance of different classes of stock, and provided a means of taxation, and exempted it from all other taxation. But it is not necessary to extend the discussion farther. We have not deemed it necessary to consider the effect of the constitutional provision as an amendment to the act of 1853, or the power of the legislature to pass the act of 1881 if it could be construed as contended for by plaintiffs in error. We construe it differently, and determine against their contention. In other words, we hold that the legislature did not intend by the act of 1881 to give immunity to the stockholders of the new corporation from the liability imposed by the constitution of the State. Judgment affirmed.	{ "pile_set_name": "FreeLaw" }
441 P.2d 956 (1968) Aletha C. WHITLATCH, Plaintiff in Error, v. JOHN HANCOCK MUTUAL LIFE INSURANCE COMPANY, a corporation, Defendant in Error. No. 41143. Supreme Court of Oklahoma. January 23, 1968. Rehearing Denied March 5, 1968. Hall & Sublett, by John W. Sublett, Finis Smith, Tulsa, for plaintiff in error. Gable, Gotwals, Hays, Rubin & Fox, Tulsa, for defendant in error. 957 BERRY, Justice. This appeal concerns the correctness of the trial court's action sustaining a motion for directed verdict and entering judgment for defendant in error, in an action brought by plaintiff in error as beneficiary, to recover upon an insurance policy issued by the defendant company. Defendant issued a group life insurance policy to the Oklahoma Bar Association Group Insurance Trust. Under this group policy insurance coverage was extended to active members of the Oklahoma Bar without medical examination. On May 10, 1961, plaintiff's decedent, an active lawyer 69 years of age, made written application and paid the required premium for a $5,000.00 policy. The application was approved and the policy issued, effective June 1, 1961. The written application for insurance contained the following matter: "1. (a) Are you now in sound health? Yes. (b) Are you now actively at work on a full-time Yes. basis (at least 30 hours per week)? * * * * * * * * * * 2. (a) Have you had any ailment, injury or No. disease within the last five years which has resulted in absence from work ten days or more? (b) Have you ever been told you had blood No. or sugar in your urine, any heart trouble or disease of the coronary arteries, high blood pressure or cancer or any other malignant disease? (c) Have you ever been declined or postponed No. for Life or Health Insurance?" 958 Insured died of coronary thrombosis on July 21, 1961, while the policy was in force and effect. The beneficiary furnished proof of loss and requested payment of policy benefits. The demand for payment was refused and the beneficiary brought suit to recover on the policy. Defendant's answer admitted the general allegations and issuance of the policy to deceased. Liability was denied upon grounds of misrepresentation, omission, concealment of facts and incorrect statements by the insured material to the risk, all of which had been relied upon to defendant's detriment. By cross-petition defendant realleged the matters upon which the claim of voidness was based; because of reliance upon the untruthful statements defendant was prevented from making investigation and exercising discretion with respect to issuance of the policy in view of insured's medical history; no policy would have been issued had the insured truthfully answered the inquiries in the application. The defendant tendered back the amount of premiums paid, and asked judgment canceling the certificate and holding the policy void. The matters asserted in the cross-petition were denied by plaintiff's answer. Plaintiff supported her cause of action by introducing into evidence the insurance policy, proof of death and demand for payment, and defendant's denial of liability upon the policy. There was some evidence which tended to show deceased led a normal life after medical treatment, and never had complete advice or understanding of the nature or extent of his debility. Defendant introduced the original application and the policy, and also medical testimony and records reflecting insured's medical history over many years. Defendant's medical evaluator testified that, had insured's application contained information concerning his prior medical history, the defendant would have declined the application, because of knowledge that persons so afflicted have a markedly increased mortality rate. Because we are of the opinion the case must be re-tried, no extended analysis and recitation of the evidence should be made. There was medical testimony that insured, who died of coronary thrombosis, had consulted a physician in 1942, because of mild chest pain on exertion, and after medical evaluation was advised to restrict his activities because of his nervous condition. In 1950 insured underwent surgery for removal of 60% of his stomach and recovered completely, although post operative procedures established presence of a malignancy. The evidence as to whether insured ever was advised of the malignancy was in conflict. In 1956 insured complained of shortness of breath upon walking upgrade into the cold wind, and the physician prescribed nitroglycerin tablets for this, as well as another medication (Raudixia) for slight hypertension, the drug also acting as a mild tranquilizer. Insured was aware of some elevation of his blood pressure, which was completely controlled so long as the medication was taken regularly. Insured's chest pains were alleviated by medication, and after changing the parking place of his car to avoid the extra exertion, it became unnecessary to continue use of medication. A diagnosis showing insured suffered from arteriosclerosis would be normal or customary for one 69 years old. The trial court's ruling was for the stated reason the evidence showed insured knew he suffered from high blood pressure, which condition was material to the risk; had defendant been so advised an investigation would have been made as to the nature and extent of this condition before accepting or declining insured's application; the fact insured knew of his condition but stated in the application he had not been so advised constituted constructive fraud, without regard to whether this was a conscious or deliberate effort to deceive defendant. Both parties have favored this Court with excellent briefs supporting their respective positions. However, no 959 purpose would be served by discussion and comparison of numerous cited cases. The rule consistently applied by this Court in a multitude of decisions is that the question of falsity of statements in an application for life insurance, and applicant's intent in making such statements, are questions for determination by the jury. The most recent pronouncement in this respect appears in Massachusetts Mutual Life Ins. Co. v. Allen, Okl., 416 P.2d 935. Therein the Court considered applicable sections of the Oklahoma Insurance Code, (36 O.S. 1961, § 3601 et seq.) particularly § 3609, as the basis for the conclusion reached. In Allen, supra, we defined the terms, enumerated in the statute, which are made grounds for avoidance of a policy. The fifth syllabus states: "Whether misrepresentations, omission, concealment of facts, or incorrect statements, as above defined, are made in negotiations for a life insurance policy by or in behalf of the insured are questions of fact for the determination of the jury where the evidence in connection therewith is conflicting." We are of the opinion the evidence adduced relative to insured's knowledge whether he actually had been medically advised as to his having heart trouble, or a tendency to heart trouble greater than to be expected by persons of his age, was sufficiently conflicting as to be susceptible of more than one conclusion. For this reason the trial court erred in sustaining defendant's motion for directed verdict, and determining as a matter of law that insured positively had knowledge the answers in the application were false. This was the issue to be determined by the jury under proper instructions. Because the case must be re-tried we decline consideration of other questions involved. Judgment reversed and case remanded with directions to grant plaintiff a new trial. All Justices concur.	{ "pile_set_name": "FreeLaw" }
FILED NOT FOR PUBLICATION NOV 07 2016 MOLLY C. DWYER, CLERK UNITED STATES COURT OF APPEALS U.S. COURT OF APPEALS FOR THE NINTH CIRCUIT ROBERT THOMSON, No. 12-56236 Plaintiff-Appellant, D.C. No. 2:11-cv-06154-SJO-JC v. MEMORANDUM* LOS ANGELES COUNTY SHERIFFS DEPARTMENT, Defendant-Appellee. Appeal from the United States District Court for the Central District of California S. James Otero, District Judge, Presiding Submitted October 25, 2016** Before: LEAVY, SILVERMAN, and GRABER, Circuit Judges. Robert Thomson appeals from the district court’s summary judgment in his 42 U.S.C. § 1983 action alleging a violation of his Second Amendment rights. * This disposition is not appropriate for publication and is not precedent except as provided by Ninth Circuit Rule 36-3. ** The panel unanimously concludes this case is suitable for decision without oral argument. See Fed. R. App. P. 34(a)(2). We have jurisdiction under 28 U.S.C. § 1291. We review de novo, Peruta v. County of San Diego, 824 F.3d 919, 925 (9th Cir. 2016) (en banc), and we affirm. In Peruta v. San Diego, this court held that a member of the general public does not have a right under the Second Amendment to carry a concealed firearm in public, and that a state may impose restrictions, including a showing of good cause, on concealed carry. Id at 939. The San Diego and Yolo County Sheriff’s Department policies interpreting the California statutory good cause requirement at issue in Peruta therefore survived a Second Amendment challenge. See id. For the same reasons the Los Angeles County Sheriff’s Department’s policies interpreting the California statutory good cause requirement do not violate the Second Amendment. AFFIRMED. 2 12-56236	{ "pile_set_name": "FreeLaw" }
39 B.R. 643 (1984) In re Charles Leroy HUMBERT, et al. No. C 82-439. United States District Court, N.D. Ohio, W.D. March 29, 1984. OPINION and ORDER WALINSKI, District Judge. This cause is before the Court on appeal from an order of the United States Bankruptcy Court for the Northern District of Ohio, Western Division, 21 B.R. 489, awarding appellant $7,500 for services performed as attorney for the trustee. Appellant contends that he is entitled to compensation in the amount of $37,301.06 pursuant to a contingent fee contract. Debtors, Charles and Linda Humbert, filed a joint Chapter 7 petition in Bankruptcy on September 24, 1980. Appellant, John J. Hunter, was appointed interim trustee on that date and was appointed trustee on October 10, 1980. On November 18, 1980 644 the Bankruptcy Court granted the trustee's application to serve as his own attorney. The debtor's schedule of assets included a contingent recovery of insurance proceeds in an unknown amount. This recovery involved a fire loss claim by debtor. When the insurer, Mid-American Fire and Casualty Company, refused to pay this claim the attorney filed a complaint for recovery against the debtors and their insurer. Eventually trustee's attorney effected settlement with the insurer for the maximum recoverable benefits under the policy in the amount of One Hundred Eleven Thousand Eight Hundred Five Dollars ($111,805.00). On January 18, 1982 the trustee's attorney filed a request for compensation, pursuant to 11 U.S.C. § 331. The Bankruptcy Court rejected appellant's request for a one-third contingent fee and awarded a premium over the attorney's usual $100 hourly rate, which totaled $7,500 for approximately thirty-six (36) hours work. Although the compensation awarded an attorney employed by the trustee must be reasonable and based on relevant factors the Bankruptcy Court is allowed broad discretion in fixing that award. Matter of U.S. Golf Corp., 639 F.2d 1197 (5th Cir.1981); In re First Colonial Corp. of America, 544 F.2d 1291 (5th Cir.), cert. denied, 431 U.S. 904, 97 S.Ct. 1696, 52 L.Ed.2d 388 (1977). Matter of McCombs, 33 B.R. 387 (E.D.Mo.1983). Such determination will be reversed on appeal "only if the bankruptcy judge fails to apply the proper legal standard or to follow proper procedures in making the determination, or bases an award upon findings of fact that are clearly erroneous." Matter of U.S. Golf Corp., supra, at 1201; See also In re First Colonial Corp. of America, supra; Matter of McCombs, supra. Applying this standard the Court can find no abuse of discretion in the present case. The Bankruptcy Court conducted a full evidentiary hearing on the application for fees. That Court's opinion included a detailed analysis of the relevant provisions of the Bankruptcy Code dealing with compensation, including 11 U.S.C. §§ 327, 328, 330, and 331. The Court reviewed the evidence presented under the applicable factors used to determine a fee award as set forth in In re First Colonial Corp., supra, and other cases. Matter of U.S. Golf Corp., supra; In re D.H. Overmeyer Co. Inc., 3 B.R. 678 (Bkrtcy.S.D.N. Y.1980). Accordingly this Court finds no error in the legal standards employed, nor in the procedures followed, by the Bankruptcy Court. Appellant contends that there are errors of law and fact in items 3 and 8 of the Bankruptcy Court's conclusions of law. (Appellant's Brief at 8). Specifically, appellant argues that it is customary to employ a contingent fee contract in fire loss cases and that such an arrangement is, therefore, reasonable under the circumstances. (Id. at 10). Appellant further contends that a contingency contract did exist and that it was not necessary to reduce such contract to writing in light of the unique situation where one person serves both as trustee and attorney. (Id. at 8, 12). Finally, it is argued that there is no duty to disclose the fee agreement, between the trustee and his attorney, to the debtor. For the following reasons the Court is not persuaded by appellants arguments. With respect to item 3 of the conclusions of law, the Bankruptcy Court merely accepted appellants own testimony that he spent approximately thirty-six (36) hours resolving the insurance claim. The Court did so notwithstanding the fact that appellant presented no detailed statement of hours. The Bankruptcy Court did not err in law or fact in reaching its conclusion concerning the number of hours expended. In item 8 the court noted that while a contingent fee was customary in fire loss cases, it is also customary to discuss such arrangements with the client and to reduce such fee to writing. The court then noted that Mr. Hunter had provided no evidence of the alleged oral contract with himself. Even if appellant had entered into a contract with himself, a proposition which this Court finds tenuous at best, the Bankruptcy 645 Court's decision did not turn on the existence or nonexistence of a contract.[1] Rather, the court relied on its authority to allow compensation different from the reasonable terms and conditions of such contract, when "such terms and conditions prove to have been improvident in light of developments unanticipated at the time of the fixing of such terms and conditions." 11 U.S.C. § 328(a). This Court agrees with the Bankruptcy Court's conclusion that the thirty-six (36) hours expended to achieve favorable results did not warrant the granting of a contingent fee under the circumstances of this case. Moreover, the Bankruptcy Court had discretion to grant a fee different from any agreed upon terms and conditions pursuant to § 328(a). Accordingly, the Court finds no abuse of discretion by the Bankruptcy Court.[2] It is therefore ORDERED that the Bankruptcy Court's Order of May 28, 1982 is affirmed. NOTES [1] The lack of evidence of the existence of a contingent contract was, however, a factor properly considered by the Court. [2] In his brief appellee also argued that the trustee waived his right to appeal when he paid himself $7,500.00. Appellant cites the general rule a party cannot accept the benefits of a judgment and later prosecute an appeal. Cherokee Nation v. United States, 174 Ct.Cl. 131, 355 F.2d 945 (1966). There is, however, an exception to this rule where, as in the present case, such fee is paid out of a fund to be distributed by the Court. See generally, 4 Am.Jur.2d Appeal and Error, § 257; 169 ALR 1049.	{ "pile_set_name": "FreeLaw" }
3 Cal.3d 62 (1970) 473 P.2d 748 89 Cal. Rptr. 44 THE PEOPLE Plaintiff and Respondent, v. WILLIAM TIDWELL, Defendant and Appellant. Docket No. Crim. 12057. Supreme Court of California. In Bank. August 28, 1970. 64 COUNSEL Peter Heintz, under appointment by the Supreme Court, for Defendant and Appellant. Thomas C. Lynch, Attorney General, Doris H. Maier, Assistant Attorney General, Edsel W. Haws and Jack R. Winkler, Deputy Attorneys General, for Plaintiff and Respondent. OPINION PETERS, J. Defendant and his brother Robert Tidwell were indicted for the murders of Jessee Levoy DeForest, Mary Jeanette DeForest, and Keith Eugene Utterback. Following separate trials by jury, both defendant and his brother were convicted of first degree murder on all three counts and sentenced to death. Defendant's motions for a new trial and for reduction of the penalty were denied, and his automatic appeal is now before us. (Pen. Code, § 1239, subd. (b).)[1] (1a) We have concluded that the trial judge erred prejudicially in denying defendant's motions for a change of venue, and hence that his judgment of conviction must be reversed. The bodies of Levoy and Jeanette DeForest were found at their ranch near Susanville in Lassen County. Their 1962 Chevrolet was missing; a stolen 1963 station wagon from Redding was in its place. Three days later, their vehicle was located at Boggard Buttes, also in Lassen County. In the front seat was the body of Keith Utterback. Defendant and his brother were indicted after a search of their apartment disclosed evidence linking them to the crimes. Defendant and his brother were strangers to Lassen County, which has a population of 17,500. The newspaper and radio news stories submitted 65 in support of the brothers' joint motion for a change of venue indicate that at least one of the crimes with which they were charged was sufficiently brutal to lead investigating authorities to tell newsmen they were looking for a "`Jack or Jacqueline the Ripper.'" Two of the victims, the DeForests, were well-known in the community. Mr. DeForest was described in one news release as "a member of one of the oldest families in the Honey Lake Valley." He was survived by several siblings in the area, including a sister who was married to Lassen County Sheriff Ben Yeakey who himself figured prominently in news stories of the investigation of the crimes. Mrs. DeForest worked at a drugstore in Susanville, and was known to many members of the community. Investigating officers kept the press, and hence the public, apprised of virtually every step in the progress of their investigation. When the Tidwells were arrested, radio and newspaper releases relayed investigators' reports that articles belonging to the victims were found in the Tidwells' possession. A substantial portion of the prosecution's evidence at trial was presented first to the public through press and radio news reports. Radio and newspaper releases carried a report that District Attorney Harold Abbott said defendant's brother gave a statement which "comes under Supreme Court rulings saying when one defendant makes a statement implicating another they must have separate trials."[2] District Attorney Abbott was also reported to have estimated the costs of trial at from $30,000 to $50,000, and he became involved in a widely publicized dispute with the Lassen County Board of Supervisors over his request that his "always ... overcrowded" office be expanded lest handling the Tidwell trial would become "`impossible.'" One article in the Lassen Advocate reported that a decision by the board of supervisors to finance trial costs out of a general reserve fund "ended speculation that $50,000 would be tacked on to the fiscal 1967-68 budget, adding 18 cents to the tax rate." Radio and newspaper releases gave wide coverage to District Attorney Abbott's plea which he addressed to the sheriff's office but also released to the press that "It is absolutely imperative that pretrial publicity and publicity during the trial, so far as your department and my department are concerned, be held to an absolute minimum. Otherwise, if the case is tried in Lassen County and the publicity is one-sided and there is too much of it, the conviction 66 will be reversed and all of the Lassen County expense will be for naught. [¶] If we have too much publicity before trial, the court will move the trial to some county other than Lassen...." Defendant's appointed attorney's affidavit in support of the venue change motion averred that on each occasion he referred to his appointment in public, he received rejoinders varying in hostility from "`I don't envy you your impossible job'" to "`Why don't they just turn them loose, we'll take care of them,'" but uniformly disclosing an opinion that the Tidwell brothers were guilty. An affidavit of George Shier averred that he was retained by counsel for defendant and his brother to ascertain "the attitude of the general public concerning the possibility of a fair and impartial trial," that he interviewed over 500 adults in "all parts of the county," that "most of the individuals questioned professed to know more about the particular case than did affiant," that in many areas he was met with "outright hostility and contempt," and that "the following are typical first expressions received by him from people interrogated: [¶] `Why are you wasting the taxpayers' money by even giving these boys a trial?' [¶] `They have confessed, why waste your time.' [¶] `The police have found property belonging to the victims in the hands of these defendants, therefore its [sic] and [sic] open and shut case, of course they are guilty.'" Finally, the Shier affidavit averred "That of all the persons interviewed only five had not heard the case discussed at all; that all but thirteen had heard or viewed the matter over radio or television; that all but five had listened to reports and other news releases over the radio; that all but thirty-one had discussed the matter with their friends, and acquaintances, and had expressed opinions concerning the guilt or innocense [sic] of these defendants; that the vast majority of the persons interviewed were of the opinion that they would be unable to set aside the views they held and try the case fairly on the basis of the evidence in court." To counter defense counsel's showing, the district attorney averred that he had had sheriff's deputies "obtain affidavits from adult persons throughout the County of Lassen," and that over 90 percent of those contacted (about 65) executed affidavits to the effect that in spite of pretrial publicity they believed the defendants could obtain a fair trial. Twelve of the affiants are apparently husband and wife. The trial judge denied the joint motion for a change of venue after reviewing this evidence. Defendant separately renewed his motion following 67 the selection of his jury a process which took four full days of voir dire during which 102 veniremen were questioned. All 72 of the prospective jurors who were asked said they had heard news of the case. Of 57 prospective jurors who were asked, 47 had discussed the case. Of 68 prospective jurors who were asked, 21 admitted in open court that they had formed an opinion concerning the defendant's guilt. Of 21 asked, 13 replied that they could not set aside this opinion. Of 79 who were asked, 22 knew one or more of the victims. Of 89 who were asked, 67 knew witnesses. Of 67 who were asked, 21 conceded that their acquaintance with victims or witnesses would affect their decision. The court granted 13 challenges for cause lodged against jurors who admitted that they could not disregard their opinion, formed on the basis of news reports, that the defendant was guilty. Twelve challenges were granted when jurors admitted that their relationship with witnesses rendered them partial, seven challenges were granted to excuse jurors who admitted their relationship with victims would affect their deliberations, and two challenges were granted when jurors admitted that their prior association with victims and witnesses would hinder their fairness. After defendant exhausted his 20 peremptory challenges, he was left with a jury composed of 12 people who had heard of the case, and presumably, were already familiar with highly publicized prosecution evidence. Of the 12, at least 10 had discussed the case with friends or fellow workers. Eight knew one or more witnesses, and four knew one or more of the victims. Of the four jurors who knew victims, juror Kanavel testified that "Mr. DeForest was putting up our hay when this matter occurred," and that once she learned the reason for his failure to appear for work, the attention of her entire family was focused on the progress of the investigation of the crimes. Juror Corder remembered Mrs. DeForest as the lady who "worked in the drug store, and she waited on me, ..." Juror DeVose knew the DeForests "casually"; juror Sorenson knew Mrs. DeForest "by sight." Of the eight jurors acquainted with witnesses, three knew Sheriff Yeakey who controlled the investigation of the murders, who had personal knowledge concerning items which were missing from the home of his brother-in-law, and who ultimately played a prominent role in the prosecution's case-in-chief. Juror DeVose considered the sheriff his "lifetime friend." Juror Gerspacher had seen Dr. McCullough who performed the autopsies and testified in detail with regard thereto in his professional capacity; juror DeVose knew him as his "family doctor." Jurors Mason, Sanford, and Kanavel indicated that they knew some of the prosecution witnesses, but did not specify which ones they knew. Juror Ceaglio was a longstanding 68 friend of the deputy who collected and authenticated over a fourth of the prosecution's exhibits including photographs of footprints and items found at the scene of the third murder which connected the crimes and helped inculpate defendant. In addition, jurors Corder and Cealigo knew surviving members of the DeForest family (juror Corder had "business acquaintanceships" with Mr. DeForest's brothers), one member of which testified to finding the DeForests' bodies and to the condition of the premises. The trial judge denied the renewed venue change motion. (2a) Settled law requires in a case tried as this one was, before Maine v. Superior Court, 68 Cal.2d 375 [66 Cal. Rptr. 724, 438 P.2d 372], but after Sheppard v. Maxwell (1966) 384 U.S. 333 [16 L.Ed.2d 600, 86 S.Ct. 1507], that we conduct an independent review of all relevant circumstances to determine whether a trial judge's denial of a motion for a change of venue deprived defendant of a fair and impartial trial. (People v. O'Brien, 71 Cal.2d 394, 400 [78 Cal. Rptr. 202, 455 P.2d 138, 456 P.2d 969].) (3) At the outset, it must be noted that defendant's failure to seek review by mandate prior to his trial in no way limits his right to relief. Maine held for the first time that mandate will lie prior to jury selection to review the denial of a venue change motion. (68 Cal.2d at p. 381.) Maine noted that "[i]t has long been the practice, sanctioned in the decisions of this court [citation], to permit the trial court to defer its final ruling on a motion for a change of venue until the jury is empaneled." (Id., at p. 380.) We recognized that mandate should lie only in advance of jury selection to avoid disruption of "the orderly progress of a trial," and established that "[i]f the appellate court denies the application [for mandate] or if appellate review is not sought, defense counsel can continue under the previous practice, to renew his motion for a change of venue during or after the voir dire examination of prospective jurors, and the trial court should order a venue change if the situation so merits." (68 Cal.2d at p. 381; italics added.) Should the trial court deny the motion, the same standard "will be applied on direct review in all cases which have not proceeded to trial at the date this opinion becomes final." (Id., at p. 384, fn. 9.) We have always permitted defendants to attack a denial of a motion for change of venue on appeal (People v. McKay, 37 Cal.2d 792 [236 P.2d 145]; People v. Suesser, 132 Cal. 631 [64 P. 1095]; People v. Yoakum, 53 Cal. 566; People v. Lee, 5 Cal. 353), and have done so since Maine without requiring an appellant to show that he first sought mandate unsuccessfully (People v. O'Brien, supra, 71 Cal.2d 394). 69 Defendant followed settled procedure still appropriate after Maine and his failure to anticipate Maine's decision that mandate will lie cannot be invoked against him. (In re Gladys R., 1 Cal.3d 855, 861 [83 Cal. Rptr. 671, 464 P.2d 127]; In re Dabney, 71 Cal.2d 1, 11-12 [76 Cal. Rptr. 636, 452 P.2d 924]; In re Caffey, 68 Cal.2d 762, 773 [69 Cal. Rptr. 93, 441 P.2d 933].) Hence our responsibility in the present case is not diminished, and the applicable criteria are not diluted, by defendant's failure to seek mandate. Maine held that a change of venue must be granted whenever a defendant demonstrates a "reasonable likelihood" that in the absence of a venue change a fair trial cannot be had. Although we declined to apply the "reasonable likelihood" standard to cases which went to trial before Maine became final, we recognized that in such cases we have a clear responsibility under federal decisions prior to Maine to ensure that a denial of a venue change did not deprive a defendant of an impartial trial. (68 Cal.2d at p. 382; see also People v. O'Brien, supra, 71 Cal.2d at p. 400.) This responsibility extends "the nature of the inquiry far beyond the validity of trial court discretion" and requires that we "make an independent evaluation of the circumstances ... [to] satisfy [our]selves de novo on all the exhibits and affidavits that every defendant obtains a fair and impartial trial." (Ibid.; italics in the original.) Such an evaluation cannot be avoided by requiring a defendant to make a specific showing of prejudice. (Maine v. Superior Court, supra, 68 Cal.2d at pp. 380, 382.) (2b) Accordingly, as this case was tried after Sheppard but prior to Maine, we must examine all relevant factors and decide whether, on balance, we would expect a trial conducted under the circumstances to live up to our system's concept of an impartial adjudication of guilt. If, on balance, we would have granted a change of venue were we in the trial judge's place, we must reverse his denial of a venue change. In post-Maine cases, of course, we must reverse not only when a preponderance of circumstances calls for such a result, but also whenever a defendant has shown even a "reasonable likelihood" that he will not receive a fair trial. The Attorney General intimates that inflammatory news articles must excite community hostility almost to a fever before this court would reverse a venue change denial prior to Maine. Of course, we have not been so insensitive to the many factors which may threaten the impartiality of a trial as to confine ourselves to such a narrow inquiry. In People v. McKay, supra, 37 Cal.2d 792, we reversed a judgment carrying a death penalty for failure to grant a change of venue even though the community's overt rage had, by the time of trial, "been replaced by a cool, widely held conviction that 70 defendants were guilty and should be tried and sentenced to death as expeditiously as possible." (Id., at pp. 796-797.) And although Maine's prospective standard makes venue changes more easily available than under earlier standards, factors considered in that case are obviously relevant to cases which must be assessed by those earlier standards. Thus it is significant here that in Maine press coverage was neither inflammatory nor particularly productive of overt hostility. The circumstances we relied upon in Maine to order a venue change included the fact that defendants were strangers in the small community in which they were charged with committing brutal crimes against prominent and popular victims. Local law enforcement officials' commendable attempts to keep details from the press were frustrated by an out-of-state report of one defendant's confession. Press coverage was not inflammatory, although it included support for a successful fund drive to defray the surviving victim's medical expenses. The final factor we noted was that the defense attorney and the prosecutor were opponents in an upcoming judgeship election. As in Maine, defendant and his brother Robert were strangers to the locale of the three murders of which they were accused. The murders occurred in Lassen County, whose population is slightly over one-third as large as that of Mendocino County, the site of the murders in Maine. (See Appendix A, Whittaker v. Superior Court, 68 Cal.2d 357, 373-374 [66 Cal. Rptr. 710, 438 P.2d 358].) And, as in Maine, the victims included well-known members of the community and the murders were brutal. And, unlike the commendable restraint exercised by local law enforcement officials in Maine, here the press and public were apprised of virtually every detail in the investigation of the crimes. As a result, a good deal of the prosecution's case was presented out of court before the trial. Although there was no report of a "confession" per se, news of a statement from defendant's brother Robert implicating defendant did reach the press by way of the district attorney's public explanation of the necessity for separate trials. The defense affidavits presented in support of the original venue change motion indicate that this circumlocution was not lost on the public, and that the district attorney might just as well have said one defendant confessed that both were responsible for the murders. When coupled with a report that defendant's brother cut his wrists in jail, and with pervasive reports that a host of clues linked the brothers to the crimes, the report that Robert implicated defendant is at least as damaging if not more so because less probative of remorse as a report that defendant had confessed. 71 Finally, although trial participants here were not competing election candidates as in Maine, news items indicate that there was considerable political debate concerning the fiscal impact of the trial. In addition to factors paralleling those in Maine, the trial judge in the instant case was presented before voir dire with persuasive evidence that a fair trial could not be had in Lassen County. The defense affidavits disclosed substantial and widespread community hostility toward the defendant and his brother, and evidenced an atmosphere at odds with a dispassionate adjudication of guilt. The trial court's resolution of the conflict raised by the prosecution's counteraffidavits cannot be deemed binding in view of our duty to conduct an independent review here. A trial judge's proximity to the events behind the record does not necessarily render his judgment as to community prejudice more reliable than an appellate review of a "cold" record. In resolving a conflict raised by affidavits, the trial judge was or should have been limited to the same "cold" record which is now before us. Moreover, unlike the case of sensitivity to such nonverbal intangibles as the demeanor of a witness, a trial judge's sensitivity to the "temper of the community" may hamper rather than facilitate the proper performance of his role. In short, judges are human, and like most people are consciously or otherwise susceptible to needs such as that for the respect and friendship of neighbors and friends. When the cost of resolving a conflict of evidence in favor of a change of venue may well be a small community's anger at the opprobrium of an implied charge of partiality, or at a lost opportunity for retribution and perhaps, in the case of elective judges the loss of a prestigious vocation proximity may not always favor justice. And, in a small community lacking a substantial number of attorneys and judges to which the performer of an unpopular legal duty might turn for understanding and support, proximity may even undermine justice where the issue is community partiality. In reaching our own resolution of conflicting defense and prosecution showings in the instant case, we note that long before Maine and Sheppard this court recognized that affidavits to the effect that a defendant can obtain a fair trial may evidence rather than refute the existence of prejudicial hostility. In People v. Suesser, supra, 132 Cal. 631, this court declined to defer to a trial judge's decision to resolve a conflict of affidavits against a venue change. Justice Temple, writing for the court, argued: "Why courts should hesitate to grant [a] change of venue in a proper case, I cannot understand. It seems that many, perhaps most, of the merchants and business men of Salinas made affidavits of the nature I have stated above to prevent such change. Why? Was it feared the defendant would escape if he were allowed a fair trial? ..." (Id., at p. 635.) And, in People v. McKay, supra, 37 Cal.2d at pp. 796-797, we dealt with a situation in which instead 72 of executing affidavits to the effect that defendants could receive a fair trial, citizens contacted by defense counsel displayed obvious hostility toward the defense as in the present case but refused to execute affidavits regarding public sentiment apparently to avoid identification as persons responsible for a change of venue. Rather than deferring to the trial judge's resolution of the conflict between defense affidavits and those offered by the prosecution to show the public's "`calm and wholesome feeling that justice be administered,'" we quoted at length from Suesser, and reasoned: "Although it may be true that the feeling of substantial citizens at the time of the crimes that `the courts should not waste time on persons such as [defendants], but that instead [they] should be lynched and "strung up,"' had cooled by the time of the trial, the record demonstrates that it had been replaced by a cool, widely held conviction that defendants were guilty and should be tried and sentenced to death as expeditiously as possible. The community was determined that defendants be given no quarter. In no other way can be explained the antagonism toward defense counsel or the fact that `all of said persons with whom [defense counsel] talked refused to make an affidavit concerning said public feeling and requested that [defense counsel] not disclose their names, upon the ground that they believed they would be criticized by their friends, customers and other persons of Shasta County.'" The form affidavits presented by the district attorney were collected by deputies working under the authority of the brother-in-law of one of the murder victims. All of the affidavits were executed after publication of the district attorney's letter brought public attention to the possibility of a change of venue. In the face of the defense affidavits evidencing an overwhelming public feeling that the defendants were guilty, and attitudes of citizens such as "`Why don't they just turn them loose, we'll take care of them,'" the prosecution's showing must be viewed with the perspective of Suesser and McKay: affidavits such as those the district attorney produced may well indicate only that public hostility was sufficiently intense that a number of citizens were willing to swear impartiality to preserve the community's opportunity to exact retribution from the suspects who were almost universally believed guilty. At the very least, Suesser and McKay indicate that pre-Maine standards do not require us to defer to a trial judge's resolution of conflicting affidavits, and Sheppard now forbids such deference. Given the size of Lassen County, the nature of the crimes, and the position of at least two of the victims in the community, the trial judge should have granted a change of venue when he was presented with a showing of pervasive news coverage of prosecution evidence and county-wide 73 hostility toward the defense. The process of jury selection corroborated the defense affidavits, and should have resolved any possible doubts in favor of a venue change. Although all of the jurors selected claimed the ability to sit impartially, such a claim is of course not conclusive. "No doubt each juror was sincere when he said that he would be fair and impartial to petitioner, but the psychological impact requiring such a declaration before one's fellows is often its father. Where so many, so many times, admitted prejudice, such a statement of impartiality can be given little weight. As one of the jurors put it, `You can't forget what you hear and see.'" (Irvin v. Dowd (1961) 366 U.S. 717, 728 [6 L.Ed.2d 751, 759, 81 S.Ct. 1639].) When the significance of associations between victims or witnesses and the jurors who actually determined defendant's fate is explored, the impossibility of an impartial adjudication of defendant's guilt and selection of penalty becomes obvious. A juror who remembers a murder victim as a living person faces a far more difficult task when asked dispassionately to judge the guilt and penalty of a stranger accused of killing that person than does a juror to whom both the accused and the victim are strangers. A juror who remembers a victim as flesh and blood is likely to find it difficult, if not impossible, consciously or otherwise to ignore natural feelings of identification with and compassion for a person he once could expect to encounter during the course of a normal day's activities. A juror who is likely repeatedly to recall a victim as the lady who waited on her at the local drugstore is unlikely to accord an accused an objective evaluation of the probative weight of evidence, of the credibility of witnesses who also interrelated with that victim, of the degrees of culpability which however crudely account for the degrees of murder, and of the circumstances upon which jurors must select a life sentence or a death penalty. Permitting a panel largely composed of acquaintances of victims to adjudicate an accused's guilt can only thwart the policies which demand that sympathy play no part in a juror's deliberations on the issue of guilt (cf. People v. Polk, 63 Cal.2d 443, 451 [47 Cal. Rptr. 1, 406 P.2d 641]; CALJIC No. 1) and that evidence concerning the character of a victim generally be excluded from the jury's consideration (cf., e.g., Evid. Code, §§ 1101, 1103). It would defy common human experience to deny that deliberations of such jurors differ in kind from those we would expect from strangers to the victim, or that the forces which account for this difference are totally alien to our concept of an impartial adjudication of guilt. In Turner v. Louisiana (1965) 379 U.S. 466 [13 L.Ed.2d 424, 85 S.Ct. 546], the United States Supreme Court held that jury-trial rights are subverted 74 when jurors know key prosecution witnesses for three days in the capacity of sheriffs who have charge of a sequestered jury. A fortiori those rights were subverted when three jurors knew the county sheriff one of them as a "lifetime friend" who supervised and testified as to the entire investigation, when one juror had known for many years the deputy sheriff through whom over a quarter of the prosecution's exhibits were authenticated and introduced in evidence, when two jurors had already trusted a prosecution witness sufficiently to rely upon his medical services, and when unnamed prosecution witnesses were known to at least three jurors. Even more so than in Turner, where the association between witnesses and jurors began during the trial, the fact that jurors have known witnesses as old friends infects the whole process of guilt adjudication. Surely a defense attorney's cross-examination which may be critical to the jury's translation of a web of circumstantial evidence into guilt, degree, and penalty verdicts will be often inhibited, and occasionally chilled entirely, by fears that a rigorous cross-examination may antagonize a juror who claims the ability to ignore the fact that the person on the stand is a friend. Carefully developed rules of evidence concerning proof and disproof of a witnesses' credibility becomes ridiculously irrelevant when eight members of the jury already know the reputation of one or more important prosecution witnesses from their own small community and are capable, if necessary, of providing their fellow jurors with anecdotes whenever deliberations touch upon the reliability of that witness. A further element of prejudice present whenever friends of prosecution witnesses in a small community sit on a criminal jury is that fear of those witnesses' future reactions to a verdict impliedly derogating their testimony may play a significant role, conscious or otherwise, upon a jury's deliberations. Here all witnesses produced in the guilt phase were prosecution witnesses, and impliedly friendly towards the district attorney's efforts to secure a first degree murder conviction and, perhaps, a death sentence. Certainly a juror who interacts with those witnesses and, in the case of jurors Corder and Cealigo, also with surviving relatives of victims on a routine basis in a small community may be affected by fears that anything less than first degree murder and death verdicts will be taken as an unfriendly or uncooperative reaction to those witnesses' attempts to aid the prosecution or to relatives' presumed desire for a measure of retribution. When the attention of a small community is focused on a trial, testifying therein may become something of an honor, and is likely to be a subject of considerable anxiety, for many members of that community. Thus a juror's fears that a witness may take a mitigated verdict personally would not be unreasonable. And since the juror may consider himself honored and fortunate to be selected to culminate 75 a community's anger against a stranger accused of killing respected members of that community, returning anything less than a death verdict for first degree murder might be viewed as a betrayal of both his trust as a juror and his friendship with witnesses. When a juror might reasonably fear that the cost of a mitigated verdict might be a cooled or lost friendship, the loss of regular customers, and, possibly, the alienation of an entire community, there is a danger that such fears will play a part in his deliberations. Of course, it is totally improper for such considerations to enter a juror's guilt or penalty decisions. (E.g., People v. Purvis, 60 Cal.2d 323, 342 [33 Cal. Rptr. 104, 384 P.2d 424].) A system of law which claims it "`has always endeavored to prevent even the probability of unfairness'" (Sheppard v. Maxwell, supra, 384 U.S. at p. 352 [16 L.Ed.2d at p. 614], and cases cited) cannot tolerate a conviction returned by a jury composed as this one was without belying that claim. Although the reasons discussed above are more than adequate to demand a reversal for error in denying defendant's venue change motions, there is another factor which bears discussion. "[T]he jury was presented with the problem of determining the penalty to be imposed.... By law the determination of the penalty is left solely to the discretion of the jury ... and accordingly, it was of vital importance that they should exercise that discretion free from bias, prejudice, or pressure from the community." (People v. McKay, supra, 37 Cal.2d at pp. 798-799.) As we noted in Fain v. Superior Court, 2 Cal.3d 46, at page 52 [84 Cal. Rptr. 135, 465 P.2d 23], "the issue of whether defendant lives or dies is manifestly no less critical than the issue of his guilt; and precisely because of the broader rules of admissibility and the absence of standards to guide the jury in choosing the appropriate punishment, a fair and impartial jury is no less essential at the penalty phase than at the guilt phase." The court's instructions concerning the jury's absolute discretion at the penalty phase in effect suggested, and in all probability ensured, that totally impermissible considerations would be given full rein in the jury's penalty deliberations. There is no reason whatsoever to conclude, for example, that jurors did not consider extrajudicial evidence of the credibility of the prosecution's witnesses in reviewing the certainty of their guilt verdict, or that jurors ignored the legally irrelevant attitudes of their friends and neighbors (People v. Purvis, supra, 60 Cal.2d at p. 342), in deciding to sentence defendant to death. (1b) In sum, this trial had no hope of enforcing procedural guarantees which have been built up over centuries of legal experience. From the outset the entire community from which all participants except the defendant were drawn was familiarized with the details of the prosecution's case by extensive 76 publicity of the progress of the investigation of the murders including the apprehension of the defendant and the discovery of items in his possession which were linked with the victims. The formalities which would follow authenticating, offering, and receiving or rejecting items of evidence in the trial cannot hide the fact that all 12 jurors had heard news of the case, and many must certainly have been aware of the prosecution's evidence. Rules of evidence limiting proof or disproof of witnesses' credibility were preempted by the fact that eight jurors knew witnesses several as close friends. The constitutionally enshrined right of cross-examination is of little value to an attorney who must temper his skills with fear that he might anger the witnesses' close friends in the jury box who will be invited ultimately to decide in their unfettered discretion if his client is fit to live. The solemn instruction to disregard sympathy must have met formidable barriers in its application by the four jurors who had known one or more of the victims as living fellow citizens. The court's repeated admonitions between trial sessions that the jurors were not to discuss the case among themselves or with others ring hollow when it is remembered that 10 of the 12 jurors had already discussed the facts of the case, as revealed by the press, before they were called as jurors. And, although "a juror's general views about capital punishment play an inevitable role" in the selection of penalty (Witherspoon v. Illinois (1968) 391 U.S. 510, 519 [20 L.Ed.2d 776, 783, 88 S.Ct. 1770], italics added), the associations of jurors with victims, witnesses, survivors of the victims, and with other members of a community which had already heard the prosecution's evidence before the trial began, would not have been inevitable had the change of venue been granted. Such associations are certainly at odds with our concept of justice. "`The prisoner, whether guilty or not, is unquestionably entitled by the law of the land to have a fair and impartial trial. Unless this result be attained, one of the most important purposes for which Government is organized and Courts of Justice established will have definitely failed. (4) Cases sometimes occur, and this would appear to be one of them, in which the very enormity of the offense itself arouses the honest indignation of the community to such a degree as to make it apparent that a dispassionate investigation of the case cannot be had. Under such circumstances the law requires that the place of trial be changed.' (People v. Yoakum, 53 Cal. 566, 571.)" (People v. McKay, supra, 37 Cal.2d at p. 800.) In short, "It would be a judicial murder to affirm a judgment thus rendered, when the reason of the people of a whole county was so clouded with passion and prejudice as to prevent mercy, and deny justice." (People v. Lee, supra, 5 Cal. at p. 354.) The judgment of convictions of first degree murder entered against defendant William Tidwell is reversed. The case is remanded to the Lassen 77 County Superior Court, and that court is directed to hold a hearing to determine where a fair and impartial trial can be had, and to transfer the cause accordingly. Sullivan, Acting C.J., Tobriner, J., and Mosk, J., concurred. BURKE, J. I dissent. The instant case was tried before our decision in Maine v. Superior Court, 68 Cal.2d 375 [66 Cal. Rptr. 724, 438 P.2d 372], became final, and we expressly stated in Maine that the new standards it established were to be applied prospectively only (68 Cal.2d at p. 384, fn. 9). Nevertheless, the majority compare Maine with the instant case and treat it as controlling herein. Although I fully concur with the principles stated in Maine, the case before us now should be decided under pre-Maine standards. Maine adopted two new principles regarding motions for venue change. First, such motions must be granted whenever a defendant demonstrates a "reasonable likelihood" that otherwise a fair trial cannot be had. Second, appellate courts must conduct an "independent review" of the circumstances to determine whether denial of a venue change deprived defendant of a fair trial. The latter standard was derived from dictum in Sheppard v. Maxwell, 384 U.S. 333 [16 L.Ed.2d 600, 86 S.Ct. 1507]. Prior to Maine, this court had expressly held that Sheppard's independent review standard would not apply in reviewing denials of motions for venue change. Thus, in People v. Modesto, 66 Cal.2d 695, 705-706, footnote 2 [59 Cal. Rptr. 124, 427 P.2d 788], we acknowledged that Sheppard did not change California law, and observed that "While the Sheppard court discussed pretrial publicity at length, it explicitly declined to hold that such publicity in itself worked a denial of due process.... Thus the governing rule still requires the accused, under circumstances such as these, to show prejudice in order to prevail; no such showing has been attempted here."[1] (Italics added.) The majority rely upon People v. O'Brien, 71 Cal.2d 394, 400 [78 Cal. Rptr. 202, 455 P.2d 138, 456 P.2d 969], to support its thesis that Sheppard's independent review test should be applied in a pre-Maine case. However, O'Brien did not disapprove Modesto's express holding to the contrary, and in fact acknowledged that Sheppard's pronouncements were mere 78 dicta. Had Modesto been called to our attention in O'Brien, we might well have applied pre-Maine standards and required defendant to show actual prejudice and establish an abuse of discretion by the trial court. Our inadvertence in O'Brien was harmless, in any event, for we held that the denial of defendant's motion for venue change was proper even under Sheppard's standard. In the instant case, the majority adopt the following test to be employed in pre-Maine, post-Sheppard cases: "If, on balance, we would have granted a change of venue were we in the judge's place, we must reverse his denial of a venue change." (Ante, p. 69.) Thus, this court is to decide the issue anew on the cold record, without regard to the trial judge's discretion in such cases and notwithstanding his proximity to the trial, the publicity alleged to have tainted it, and the temper of the community allegedly aroused thereby. Again, although the majority disclaim that they are applying Maine's standard of reasonable likelihood, they readily discard Modesto's requirement of actual prejudice on the theory that it is somehow incompatible with our asserted duty in pre-Maine cases to exercise independent judgment. The majority's test, quoted above, is squarely contrary to Modesto (a pre-Maine, post-Sheppard case), and to many other decisions holding that our function is limited to determining whether the trial court abused its discretion in denying the motion (e.g. People v. Duncan, 53 Cal.2d 803, 812 [3 Cal. Rptr. 351, 350 P.2d 103]; People v. Jacobson, 63 Cal.2d 319, 325-326 [46 Cal. Rptr. 515, 405 P.2d 555]), and whether defendant has shown actual prejudice from pretrial publicity (e.g. People v. Modesto, supra, 66 Cal.2d 695, 705, fn. 2; People v. Jacobson, supra, 63 Cal.2d at pp. 325-326; People v. Carter, 56 Cal.2d 549, 572 [15 Cal. Rptr. 645, 364 P.2d 477]; People v. Gomez, 41 Cal.2d 150, 161-162 [258 P.2d 825]). As stated in Jacobson, supra, quoting with approval from a recent Vermont case, "`newspaper articles, even though denunciatory in character, are not in themselves in the absence of some evidence of the actual existence of a prejudice against the accused, sufficient to require the judge, in the exercise of his discretion, to conclude that a fair and impartial trial cannot be had.'" (Italics added.) Again, in Carter, supra, where (as in the instant case) defendant had exhausted his peremptory challenges, this court held that "whether publications, accurate or inaccurate, warrant reversal depends on whether defendant has shown that they had a prejudicial effect." In my view, defendant has not established that the pretrial publicity actually prejudiced the jury or otherwise precluded a fair and impartial trial. Although defendant submitted affidavits which indicated that most 79 persons interviewed shared an opinion of his guilt, the People submitted contrary evidence. The resolution of such conflicting evidence in a pre-Maine case was the responsibility of the trial judge, who observed the voir dire examination of the jurors and who stood in the best position to determine the extent to which pretrial publicity could affect the trial. (People v. Carter, supra, 56 Cal.2d 549, 571; People v. Brite, 9 Cal.2d 666, 689-690 [72 P.2d 122].) In any event, defendant's affidavits regarding the opinions of various members of the general public were insufficient to establish an actual prejudicial effect upon the jurors who heard his case. (People v. Duncan, supra, 53 Cal.2d 803, 812.) It is perhaps inevitable that some murders achieve a notoriety which familiarizes an entire community with the nature of the crime. And yet this court stated in Duncan, supra, that "Even if it be assumed that many persons formed opinions unfavorable to defendant as a result of what was published, it does not follow that persons without such views could not be found to act as jurors or that those who had adverse opinions would be unable to set them aside and try the case fairly on the basis of the evidence to be produced in court. (See Pen. Code, § 1076.) Defendant's motion for a change of venue was addressed to the sound discretion of the trial judge, and we cannot say that he abused his discretion in denying it." (53 Cal.2d at p. 812.) In Duncan, supra, four jurors stated that as a result of pretrial publicity, they had formed the opinion that defendant was guilty of murder, and that it would require further evidence to overcome their opinion. In sustaining the trial court's refusal to remove these jurors, we stated that "we have seen, however, the opinions were based on news reports and rumor, and, when questioned by the district attorney and the judge, the jurors stated that they would base their verdict solely on the evidence received in court and the instructions given them and that they would act impartially notwithstanding the opinions they had formed. Where jurors on voir dire have made conflicting statements similar to those involved here, it is a question of fact for the trial judge whether they can act impartially, and in such circumstances rulings denying challenges for bias have uniformly been upheld in this state as well as by the United States Supreme Court. [Citations.]" (53 Cal.2d at p. 816.) In the instant case, 11 jurors stated that they had formed no opinion regarding defendant's guilt and that they would serve impartially and fairly. The twelfth juror, Mrs. Sanford, was not asked if she had formed an opinion regarding defendant's guilt. However, she stated that she had not discussed the case with anyone, had heard no radio reports regarding it, had read only "slight" accounts of the crime, and would be a fair 80 and impartial juror. Under the rule of the Duncan case, supra, we must uphold the trial court's discretion in permitting these jurors to serve. Several jurors were acquainted with the victims or witnesses in this case. However, each such juror stated that his acquaintance would not influence his verdict or prevent him from serving fairly and impartially. Moreover, it has long been the rule in this state that "Mere acquaintance of the jurors with a litigant does not imply bias by them in his favor any more than it raises a presumption of prejudice against him." (Perkins v. Sunset Tel. & Tel. Co., 155 Cal. 712, 715 [103 P. 190].) By a parity of reasoning, mere acquaintance of the jurors with the victims or witnesses cannot constitute implied bias. Thus, Penal Code section 1074 limits challenges for implied bias to "Consanguinity, or affinity within the fourth degree to the person alleged to be injured by the offense charged, or on whose complaint the prosecution was instituted, or to the defendant." I conclude that defendant has failed to establish actual prejudice on the part of the jurors selected to hear his case. Nor does the pretrial publicity on its face disclose that defendant could not have obtained a fair and impartial trial, for the news articles and releases were no different from the usual reporting of any homicide of this sort. (People v. Carter, supra, 56 Cal.2d 549, 572; People v. Mendes, 35 Cal.2d 537, 542 [219 P.2d 1].) In fact, the absence of hostility toward defendant in the pretrial publicity contrasts sharply with the publicity and public sentiment involved in such cases as People v. McKay, 37 Cal.2d 792 [236 P.2d 145], People v. Suesser, 132 Cal. 631 [64 P. 1095], and People v. Yoakum, 53 Cal. 566, which resulted in convictions being reversed and retrials ordered.[2] Since defendant has shown neither actual prejudice on the part of 81 the jurors, nor an abuse of discretion by the trial judge, and since both elements are prerequisites to reversal under numerous pre-Maine[3] decisions of this court, I would affirm the judgment. McComb, J., concurred. Respondent's petition for a rehearing was denied September 24, 1970. McComb, J., and Burke, J., were of the opinion that the petition should be granted. NOTES [1] The automatic appeal of Robert Tidwell is considered in a separate opinion. post, page 82. [2] The quoted language is from a United Press International news release broadcasted at least three times on September 21, 1967, over several radio and television stations covering all of Lassen County. The language of the newspaper story, carried on the same day by the Lassen Advocate, was that District Attorney Abbott "told the court yesterday the evidence statement by the younger Tidwell comes under a supreme court decision, which says that when one defendant has made a statement implicating the other they are entitled to separate trials." [1] See also Note, The Supreme Court of California, 1967-1968, 56 Cal.L.Rev. 1612, 1705, wherein the authors state that "Maine's most significant substantive change is its holding forbidding appellate courts merely to review the trial court's discretion, but compelling them to satisfy themselves independently that the standards for impartial jurors have been met." (Italics added.) And at footnote 13, the authors note that "The supreme court now finds binding the `duty' imposed by Sheppard ... to conduct an `independent evaluation' of the motion for venue change, although in People v. Modesto ... this `duty' imposed by Sheppard was not binding." [2] In McKay, supra, "the community was thoroughly aroused [and] there was talk of lynching." (37 Cal.2d at p. 794.) In Suesser, supra, defendant was "denounced'`' in the public press, which expressed the "greatest indignation and sorrow" regarding the crime. (132 Cal. at p. 634.) In Yoakum, supra, the crime caused "widespread excitement" and a "feeling of extreme hostility against defendant." (53 Cal. at p. 570.) Even the Maine case, supra, was concerned primarily with "prejudicial newspaper publicity which either caused or reflected widespread hostility to a defendant in the community." (Italics added; 68 Cal.2d at p. 382.) Maine suggested that in determining whether a reasonable probability of prejudice exists in a particular case the trial court must consider "the extent of the hostility engendered toward a defendant." (Italics added; 68 Cal.2d at p. 388.) In the instant case, the only publicity which could be characterized as "hostile" was a brief newspaper reference to "Jack or Jacqueline the Ripper" in describing the unknown assailant. After defendant and his brother were apprehended, there were no inflammatory or antagonistic news or radio reports whatsoever. [3] Defendant contends that the application of pre-Maine standards to the instant case is unjust, since there are several factual similarities between this case and Maine. However, as stated by the United States Supreme Court in Stovall v. Denno, 388 U.S. 293, 301 [18 L.Ed.2d 1199, 1206, 87 S.Ct. 1967], holding that the Wade-Gilbert lineup cases should not be given retroactive effect: "Inequity arguably results from according the benefit of a new rule to the parties in the case in which it is announced but not to other litigants similarly situated in the trial or appellate process who have raised the same issue. But we regard the fact that the parties involved are chance beneficiaries as an insignificant cost for adherence to sound principles of decision-making." (Fn. omitted.)	{ "pile_set_name": "FreeLaw" }
Case: 10-50988 Document: 00511455654 Page: 1 Date Filed: 04/25/2011 IN THE UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT United States Court of Appeals Fifth Circuit FILED April 25, 2011 No. 10-50988 Summary Calendar Lyle W. Cayce Clerk UNITED STATES OF AMERICA, Plaintiff - Appellee v. WILLIAM PAUL SHAVER, Defendant - Appellant Appeal from the United States District Court for the Western District of Texas USDC No. 6:05-CR-148-1 Before DAVIS, SMITH, and SOUTHWICK, Circuit Judges. PER CURIAM:* William Paul Shaver, federal prisoner # 30030-008, was convicted of theft of mail matter (count one), altering a financial obligation (count two), possessing counterfeit obligations (count three), and access device fraud (count four). He was sentenced to 60 months of imprisonment on count one and 120 months of imprisonment on counts two, three, and four, all to be served concurrently with each other and with Shaver’s sentences for two other Tarrant County convictions. He was also sentenced to pay $4,155 in restitution. * 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: 10-50988 Document: 00511455654 Page: 2 Date Filed: 04/25/2011 No. 10-50988 Shaver now moves this court for leave to proceed in forma pauperis (IFP) in his appeal of the district court’s denial of his Federal Rule of Criminal Procedure 36 motion. The district court determined that it lacked jurisdiction to consider the motion because the motion challenged the calculation of Shaver’s sentence by the Bureau of Prisons (BOP) and thus was properly filed under 28 U.S.C. § 2241 in the Northern District of Texas, where Shaver was incarcerated. By moving for IFP here, Shaver is challenging the district court’s certification that his appeal was not taken in good faith. See Baugh v. Taylor, 117 F.3d 197, 202 (5th Cir. 1997); Fed. R. App. P. 24(a). Shaver concedes that his motion disputed the BOP’s calculation of his sentence, but he argues that his previously filed Section 2241 petition concerning this issue already was denied and that he now is attempting, pursuant to Rule 36, to conform his judgment to the district court’s “original intentions” to give him presentence credit for the time that he served for his Tarrant County convictions. He also requests an evidentiary hearing on appeal. As Shaver concedes, his motion in fact challenged the BOP’s calculation of his sentence, and thus it would properly be filed under Section 2241 in the district in which he was incarcerated. See Castro v. United States, 540 U.S. 375, 381 (2003); Pack v. Yusuff, 218 F.3d 448, 451 (5th Cir. 2000). Accordingly, he has not shown that the district court erred in denying his Rule 36 motion as a Section 2241 petition over which it lacked jurisdiction. See Zolicoffer v. United States Dep’t of Justice, 315 F.3d 538, 540-41 (5th Cir. 2003). In light of the foregoing, Shaver’s IFP motion fails to show error in the district court’s certification decision and fails to show that he will raise a nonfrivolous issue on appeal. See Baugh, 117 F.3d at 202; Howard v. King, 707 F.2d 215, 220 (5th Cir. 1983). Therefore, Shaver’s motion for leave to proceed IFP on appeal is denied and his appeal is dismissed as frivolous. See Baugh, 117 F.3d at 202 & n.24; 5th Cir. R. 42.2. Shaver’s motion for an evidentiary hearing on appeal is likewise denied. 2 Case: 10-50988 Document: 00511455654 Page: 3 Date Filed: 04/25/2011 No. 10-50988 IFP DENIED; APPEAL DISMISSED; ALL OUTSTANDING MOTIONS DENIED. 3	{ "pile_set_name": "FreeLaw" }
FIFTH DIVISION MCFADDEN, P. J., RAY and RICKMAN, JJ. NOTICE: Motions for reconsideration must be physically received in our clerk’s office within ten days of the date of decision to be deemed timely filed. http://www.gaappeals.us/rules June 14, 2018 In the Court of Appeals of Georgia A18A0422. MEDDINGS v. THE STATE. RAY, Judge. Following a jury trial, Richard Carlton Meddings, II, was convicted on four counts of child molestation and two counts of aggravated child molestation. He appeals from his convictions and the trial court’s denial of his motion for new trial, contending that the trial court erred when it denied his motion to suppress his confessions. He also contends that the evidence was insufficient to support his convictions, that he had ineffective assistance of counsel, and that he was denied his rights to due process based on post-trial delay. For the reasons that follow, we affirm. On appeal from his criminal conviction, Meddings is no longer presumed innocent and all of the evidence is viewed in the light most favorable to the jury’s verdict. Lipscomb v. State, 315 Ga. App. 437, 439 (727 SE2d 221) (2012). The evidence adduced at trial shows that in 2007, the 14-year-old victim, A. T., and other family members lived with Meddings in Houston County. Meddings was married to A. T.’s half-sister. A. T. testified at trial that, during this time, Meddings molested her on several occasions by touching her vaginal area with his hands, mouth, and penis, by touching her buttocks with his penis, and by having her place her hand and mouth on his penis. Although A. T. was initially afraid to tell anyone about the sexual abuse, she eventually made an outcry to her mother. Following her outcry, a forensic interview of A. T. was conducted at the Rainbow House, a child advocacy center, wherein A. T. described Meddings’ acts of sexual abuse. Later, a child abuse investigator with the Houston County Department of Family and Children Services and Corporal Hilton, a juvenile investigator with the Houston County Sheriff’s Department, went to A. T.’s school to interview her. During this follow-up interview, A. T. described Meddings’ acts of sexual abuse in great detail. 2 Following A. T.’s disclosure, A. T.’s half-sister became angry at A. T. and accused her of lying about the sexual abuse. Under pressure from her sister and other family members, A. T. was coerced into writing a letter recanting her allegations. At trial, however, A. T. confirmed that Meddings had indeed molested her and that her testimony about the acts of sexual abuse was the truth. The evidence at trial further showed that on May 10, 2007, Meddings was interviewed twice by Corporal Hilton. In the first interview, which was video- recorded, Meddings denied any wrongdoing and agreed to go take a polygraph test. When he met with the polygraph examiner later that morning, however, Meddings confessed to his crimes during the pre-test interview. After admitting his guilt to the polygraph examiner, Meddings wrote out a statement summarizing his confession. The polygraph examiner then made a telephone call to Corporal Hill and faxed Meddings’ written confession to her. After leaving the polygraph examiner’s office, Meddings met with Corporal Hilton again that same day for a second video-recorded interview, wherein he confirmed his written confession. Although Corporal Hilton was now aware of Meddings’ confession, she did not place Meddings under arrest at that time. Rather, she allowed Meddings to leave to get his affairs in order before his arrest. 3 On May 15, 2007, Meddings turned himself in to Corporal Hilton to be placed under arrest. After being advised of his Miranda rights, Meddings participated in a third video-recorded interview, wherein he gave Corporal Hilton a more detailed confession regarding his crimes. Meddings’ oral and written confessions to the polygraph examiner and the video recordings of Meddings’ oral confessions to Corporal Hilton were admitted into evidence at trial over Meddings’ objection. After considering all of the evidence, including the testimony of the child-victim and the evidence of Meddings’ confessions, the jury found Meddings guilty of all charges in the indictment. This appeal ensued. 1. Meddings first contends that the trial court erred in denying his motion to suppress his confessions. Specifically, he argues that his confessions were involuntary and inadmissible because they were induced by an improper promise of benefit. We disagree. To render a confession admissible under Georgia law, “it must have been made voluntarily, without being induced by another by the slightest hope of benefit or 4 remotest fear of injury.” See former OCGA § 24-3-50.1 The statutory reference to “the slightest hope of benefit” refers to promises related to reduced criminal punishment such as “a shorter sentence, lesser charges, or no charges at all.” (Citation and punctuation omitted.) Finley v. State, 298 Ga. 451, 454 (3) (782 SE2d 651) (2016). In determining whether an in-custody statement was made freely and voluntarily, a trial court must consider the “totality of the circumstances” and apply a “preponderance of the evidence” standard. (Citation omitted.) Philpot v. State, 300 Ga. 154, 158 (3) (794 SE2d 140) (2016). Further, “[b]ecause admissibility of such a statement presents a mixed question of fact and law, on appeal, we accept the trial court’s findings on disputed facts and credibility of witnesses unless clearly erroneous and independently apply the legal principles to the facts.” (Citation and punctuation omitted.) Id. At the hearing on the motion to suppress, Corporal Hilton testified that, on the morning of Meddings’ scheduled polygraph examination, she did not pressure, threaten, or promise anything to Meddings, nor did she give him any kind of 1 This case was tried in 2010 under the old Evidence Code. We note that a substantially identical statute is contained in the new Evidence Code under OCGA § 24-8-824, effective January 1, 2013. Accordingly, our analysis of this issue is the same under either version. 5 inducement to persuade him to talk to the polygraph examiner. Our review of the video-recording of this particular interview indicates that Corporal Hilton informed Meddings that “today is the only day that I can help you.” However, to put her statement into context, we note that Corporal Hilton further explained to Meddings that she is part of a multi-disciplinary team which includes investigators, the district attorney, psychologists, child advocates, and others, and that the multi-disciplinary team meets monthly to discuss pending cases involving abused children. She also explained to Meddings that the district attorney may ask her for a recommendation at one of these meetings, and she informed Meddings that if he was open and honest with her, she could inform the district attorney of his cooperation and that she might not recommend the maximum punishment. Although Corporal Hilton indicated to Meddings that his cooperation could result in probation as a possible outcome, she further clarified that “I can’t really say as far as this case [is concerned],” but that they do ask team members for recommendations. Under the totality of the circumstances, we conclude that Corporal Hilton’s statements did not amount to the type of “hope of benefit” that would render his subsequent confessions involuntary. “Merely telling a defendant that his or her cooperation will be made known to the prosecution does not constitute the hope of 6 benefit sufficient to render a statement inadmissible[.]” (Citations and punctuation omitted.) Samuels v. State, 288 Ga. 48, 50 (2) (701 SE2d 172) (2010). Further, merely presenting a defendant with the possibility of a better result in his case if he chooses to cooperate does not constitute an impermissible hope of benefit where the defendant is aware that any agreement with regard to possible punishment is ultimately up to others. Shepard v. State, 300 Ga. 167, 170 (2) (794 SE2d 121) (2016) (defendant’s incriminating statements not induced by hope of benefit where the detectives merely acknowledged that the defendant could possibly get some deal and that they would talk with the district attorney, but it was clear to defendant that any agreement would require the assent of the district attorney); Selley v. State, 237 Ga. App. 47, 49 (3) (514 SE2d 706) (1999) (a detective did not offer an improper hope of benefit when he told defendant that “he would talk to the prosecutor and see if he could get [the defendant] a good deal if [he] cooperated”). Compare Canty v. State, 286 Ga. 608, 610 (690 SE2d 609) (2010) (defendant’s confession was induced by hope of benefit when defendant was only told that confession could result in a “shorter term”). Furthermore, we find no merit in Meddings’ contention that the polygraph examiner induced him to make his initial confessions by telling him that he would get probation if he confessed to his crimes. The polygraph examiner, Robert Warner, an 7 independent contractor who had been hired by the Houston County Sheriff’s Office to administer Meddings’ polygraph examination, testified at the hearing on the motion to suppress that he did not make any promises to Meddings or suggest to him that he would receive any particular benefit by confessing. Warner testified that he merely informed Meddings that he would make Meddings’ cooperation known to Corporal Hilton. See Samuels, supra. For the above reasons, the trial court did not err in denying the motion to suppress his confessions. 2. Meddings contends that the evidence was insufficient to support his convictions. We disagree. When reviewing the sufficiency of the evidence, we view the evidence in a light favorable to the jury’s verdict. Weighing the evidence and determining witness credibility are beyond the purview of this [C]ourt. We simply assess whether the evidence was sufficient to find [Meddings] guilty beyond a reasonable doubt. (Citation and punctuation omitted.) Atkins v. State, 342 Ga. App. 849, 849 (805 SE2d 612) (2017). Based on all of the evidence, including A. T.’s direct testimony concerning Meddings’ acts of sexual abuse, we conclude that the evidence was sufficient for a rational trier of fact to have found Meddings guilty beyond a 8 reasonable doubt of the crimes for which he was convicted. Id. See also Smith v. State, 320 Ga. App. 408, 410 (1) (a) (740 SE2d 174) (2013) (“The testimony of a victim of child molestation or aggravated child molestation need not be corroborated. The testimony of one witness is generally sufficient to establish a fact”) (punctuation and footnotes omitted). 3. Meddings also contends that he received ineffective assistance of counsel because his trial counsel did not request any jury charges of his own and did not object to the trial court’s failure to charge the jury as to the voluntariness of each of his confessions individually. His arguments are without merit. To succeed on his ineffective assistance of counsel claim, Meddings “must show both that trial counsel’s performance was deficient, and that the deficient performance prejudiced his defense.” (Citation omitted.) Anglin v. State, 302 Ga. 333, 343 (8) (806 SE2d 573) (2017). When considering such a claim, we note that “there is a strong presumption that trial counsel’s performance falls within the wide range of reasonable professional assistance[.]” (Footnote omitted.) Bynum v. State, 315 Ga. App. 392, 394 (1) (a) (726 SE2d 428) (2012). Furthermore, “[d]ecisions as to which jury charges will be requested . . . fall within the realm of trial tactics and strategy. They provide no grounds for reversal unless such tactical decisions are so patently 9 unreasonable that no competent attorney would have chosen them.” (Citation and punctuation omitted.) McLean v. State, 297 Ga. 81, 84 (3) (772 SE2d 685) (2015). (a) Trial counsel’s failure to submit any requests to charge, in general – At the hearing on Meddings’ motion for new trial, Meddings’ trial counsel testified that he made the decision not to submit his own jury charge requests because he knew that “the [trial court] was going to [charge] a lot of the obvious,” which he acknowledged were the “typical [and] standard criminal jury charges.” He further testified that he would have submitted particular jury charge requests if he “thought tactically there was a reason” to do so. Having reviewed the trial court’s charge to the jury in general, we conclude that trial counsel’s tactical decision in this regard was not unreasonable. McLean, supra. See generally Tenant v. State, 218 Ga. App. 620, 623 (4) (e) (462 SE2d 783) (1995) (trial counsel’s failure to request any jury charges did not constitute deficient performance where defendant failed to show that charges given were deficient or that the failure to request specific charges actually prejudiced the defense). (b) Trial counsel’s decision to not object to trial court’s failure to charge as to the voluntariness of each individual confession – At trial, the trial court charged the jury only as to the voluntariness of Meddings’ detailed confession that he made 10 to Corporal Hilton prior to his arrest on May 15, 2007. The trial court did not specifically charge the jury with regard to the voluntariness of the prior informal confessions that Meddings made to Warner and Corporal Hilton on May 10, 2007. Meddings contends that his trial counsel was ineffective because he did not object to the trial court’s failure to also charge the jury as to the voluntariness of the prior confessions. His claim of ineffectiveness on this issue fails. At the hearing on Meddings’ motion for new trial, trial counsel testified that he considered the series of confessions as one “continuing confession,” and that he wanted the jury to think of it that way as well. Trial counsel further testified that he did not want to draw the jury’s attention to each individual confession, and that it actually benefitted the defense to have the jury view the series of statements as “one long and dubious confession” that had been undermined by his cross-examination of the prosecution witnesses. Specifically, trial counsel testified that he “wouldn’t want the [c]ourt to emphasize that [the] jury ha[d] the right to believe any one or all . . . of these [confessions],” and that he was worried that if he brought attention to each confession individually, the jury would place a more heightened emphasis on the third, most-detailed confession. 11 We note that there is no legal necessity to give a jury charge on the voluntariness of a confession unless there is a specific request for one. See Thorpe v. State, 285 Ga. 604, 611 (7) (678 SE2d 913) (2009). Based on trial counsel’s testimony, it is apparent that he made a conscious, strategic decision not to object to the trial court’s failure to include each individual confession in its charge to the jury on voluntariness. As noted earlier, a trial counsel’s reasonable decision as to which jury charges to request is a matter of trial tactics and strategy which cannot support a claim of ineffective assistance. See McLean, supra at 84 (3). We conclude that trial counsel’s tactical decision in this regard was not unreasonable. Furthermore, the issue of whether each individual confession was voluntary does nothing to undermine the corroborating testimony of the child-victim, A. T. As this was not a case in which Meddings’ confessions were uncorroborated by any other evidence at trial, and in light of the fact that the voluntariness of the confessions was properly determined by the trial court on the motion to suppress, see Division 1, supra, Meddings cannot show that he was prejudiced as a result of trial counsel’s decision not to object to the trial court’s failure to charge on the voluntariness of each individual confession. See generally, Thorpe, supra at 611-612 (7). 12 For the above reasons, we conclude that Meddings’ claim of ineffective assistance of counsel is without merit. 4. Lastly, Meddings argues that his due process rights were violated based on the nearly seven-year delay between his conviction and the trial court’s hearing on his motion for new trial. He also argues that the trial court failed to adequately rule on this issue below. We discern no reversible error. As an initial matter, we note that the trial court acknowledged the issue of post- trial delay in its order denying Meddings’ motion for new trial. In its ruling, the trial court found that there had been an inordinate post-trial delay, but that any consequences of this delay should be left to the appellate court. We shall fully address this issue on appeal. “While there is no Sixth Amendment right to a speedy appeal, due process concepts necessarily become implicated when substantial delays are experienced during the criminal appellate process.” (Citation and punctuation omitted.) Chatman v. Mancill, 278 Ga. 488, 488, n. 2 (604 SE2d 154) (2004). And “[t]o assess claims involving appellate delay, we use an analysis based on . . . length of delay, the reason for the delay, the defendant’s assertion of his right, and prejudice to the defendant.” 13 (Citations and punctuation omitted.) Brinkley v. State, 320 Ga. App. 275, 280 (5) (739 SE2d 703) (2013). In this case, the record shows that Meddings was convicted on July 2, 2010, and he timely filed a motion for new trial on July 23, 2010. The record shows that the trial court failed to keep track of the pending motion and that a hearing was never scheduled because the court reporter had not filed the trial transcript. Thereafter, Meddings filed pro se motions in 2011 and 2012 requesting a copy of the trial transcript, but the trial court denied both motions based on its mistaken belief that all of Meddings’ post-trial proceedings had been concluded. Eventually, in 2017, the trial court discovered that Meddings’ motion for new trial was still pending, and it contacted the court reporter to demand the filing of the trial transcript. After the trial transcript was filed, Meddings was appointed new counsel and filed an amended motion for new trial on May 16, 2017. Hearings on his motion for new trial were held on May 17, 2017, and June 9, 2017. The trial court entered its order denying the motion for new trial on July 21, 2017, and Meddings filed his notice of appeal on August 18, 2017. In response to Meddings’ appeal, the State correctly acknowledges (i) that the nearly seven-year delay between Meddings’ conviction and the hearing on his motion 14 for new trial is presumptively prejudicial; (ii) that the delay was the result of inattention on the part of Meddings’ initial appellate counsel, the State, and the trial court; and (iii) that Meddings had apparently asserted his right to a prompt disposition of his efforts to seek post-trial review of his convictions. We note that the delay in addressing Meddings’ motion for new trial is troubling. Therefore, we must again remind both the bench and bar that this sort of extraordinary post-conviction, pre-appeal delay puts at risk the rights of defendants and crime victims and the validity of convictions obtained after a full trial. It is the duty of all those involved in the criminal justice system, including trial courts and prosecutors as well as defense counsel . . . , to ensure that the appropriate post-conviction motions are filed, litigated, and decided without unnecessary delay. That duty unfortunately was not fulfilled in this case. (Footnote omitted.) Robinson v. State, 334 Ga. App. 646, 647 (1) (780 SE2d 86) (2015). Nevertheless, Meddings has failed to show that his motion for new trial and subsequent appeal were prejudiced by the delay. “Appellate delay is prejudicial when there is a reasonable probability that, but for the delay, the result of the [motion for new trial or] appeal would have been different.” (Citation and punctuation omitted.) Shank v. State, 290 Ga. 844, 849 (5) (c) (725 SE2d 246) (2012). 15 In his amended motion for new trial, Meddings asserted below that his trial counsel was ineffective, inter alia, because he had failed to call his father as a witness at the motion to suppress his confession and at trial. He contends that he was prejudiced by the post-trial delay because, by the time of the motion for new trial hearing, his father’s memory had faded with regard to some of the events that occurred on the date of Meddings’ initial confession to the polygraph examiner. However, our review of the hearing transcript indicates that his father was able to testify as to all of the facts about which he was being questioned, and Meddings has not shown how the purported failings of his father’s memory substantially related to any material issue that could have supported his claim of ineffective assistance of counsel. See generally Threatt v. State, 282 Ga. App. 884, 890-891 (d) (640 SE2d 316) (2006) (no prejudice from post-trial delay where defendant had alleged that detective’s memory concerning investigation had faded but defendant failed to show how those memory lapses substantially related to any material issue supporting his defense). Accordingly, Meddings has failed to show a reasonable probability that the outcome of his motion for new trial or this appeal would have been different but for the delay. 16 Moreover, “there can be no prejudice in delaying a meritless [motion for new trial or] appeal.” (Citation and punctuation omitted.) Brinkley, supra at 281 (5). Accord Loadholt v. State, 286 Ga. 402, 406 (4) (687 SE2d 824) (2010) (holding that there can be no prejudice in a delay pending appeal where the enumerations raised on appeal are without merit). Based on the foregoing, including our holdings in Divisions 1 through 3 of this opinion, Meddings cannot establish that he was prejudiced by the post-trial delay. Accordingly, his claim with regard to this issue must fail. Judgment affirmed. McFadden, P.J., and Rickman, J., concur. 17	{ "pile_set_name": "FreeLaw" }
408 F.Supp. 582 (1976) Eugene and Jacqueline GUERNSEY et al., Plaintiffs, v. RICH PLAN OF THE MIDWEST (a Division of Freeze-Bank, Inc.) et al., Defendants. No. H 74-67. United States District Court, N. D. Indiana, Hammond Division. February 2, 1976. 583 584 Murphy, McAtee, Murphy & Costanza, East Chicago, Ind., for plaintiffs. 585 Samuel Goodman and Frederick Ball, Given, Dawson & Cappas, East Chicago, Ind., for Rich Plan. W. Patrick Downes, Galvin, Galvin & Leeney, Hammond, Ind., for Konopiots. Steve Enich, Milwaukee, Wis., for McMahons. MEMORANDUM OPINION AND ORDER ALLEN SHARP, District Judge. The plaintiffs, Eugene and Jacqueline Guernsey, have instituted this action on behalf of themselves and all other similarly situated persons. The complaint reads in seven rhetorical counts five "federal" counts and two "state law" counts. The plaintiffs pray for injunctive relief as well as compensatory and punitive damages. In the complaint, the plaintiffs allege violations of 15 U.S.C. § 45(a), 15 U.S.C. § 2, 15 U.S.C. § 77a et seq., 15 U.S.C. § 1640, and the common law torts of fraud and misrepresentation plus violations of the Indiana Deceptive Sales Practices Act, IC (1971) XX-X-X-XXX. Defendant Rich Plan of the Midwest (hereinafter "Rich Plan"), filed a lengthy motion to dismiss based upon assertions that: (1) the court lacks subject matter jurisdiction, (2) that the plaintiffs' complaint fails to state a claim upon which relief can be granted under Rule 12(b)(6) and, (3) that the court should abstain. On June 18, 1975 the court granted the plaintiffs' motion to strike paragraph number 5 of the defendant Rich Plan's motion to dismiss. Paragraph number 5 alleged that the requisite jurisdictional amount under 28 U.S.C. § 1332 was not present. Therefore, the question of the challenged jurisdictional amount is not at issue at this particular time and the court will now rule upon the other issues presented by Rich Plan's motion to dismiss. JURISDICTION-COUNT I Count I of the plaintiffs' amended complaint alleges that the plaintiffs have been victimized by "unfair [and] deceptive acts or practices in commerce" committed by the defendant Rich Plan all in violation of the Federal Trade Commission Act, 15 U.S.C. § 45. Jurisdiction is based upon 28 U.S.C. § 1337, which reads as follows: "The district courts shall have original jurisdiction of any civil action or proceeding arising under any Act of Congress regulating commerce or protecting trade or commerce against restraints and monopolies" 28 U.S.C. § 1337 Under this section of the United States Code, no minimum dollar amount is necessary to invoke federal jurisdiction, but the basis for the jurisdiction must appear from the well-pleaded facts in the complaint standing alone and unaided. Springfield Television, Inc. v. City of Springfield, Missouri, 428 F.2d 1375 (8th Cir. 1970). The language of § 1337 applies to the Federal Trade Commission Act, 15 U.S.C. § 45. See Holloway v. Bristol-Myers Corp., 158 U.S.App.D.C. 207, 485 F.2d 986 at 988 n. 2 (1973). Count I of the amended complaint is not plainly insubstantial nor frivolous, therefore, Count I of the complaint is sufficient to invoke subject matter jurisdiction pursuant to § 1337. The court now assumes jurisdiction over Count I of the amended complaint and declines to exercise its discretion in favor of abstention. The next issue is whether Count I states a cause of action and can withstand a motion pursuant to Rule 12(b)(6), Federal Rules of Civil Procedure. Whether a complaint states a cause of action upon which relief could be granted is a question of law and, just as issues of fact, it must be decided after and not before the court has assumed jurisdiction over the controversy. Bell v. Hood, 327 U.S. 678 at 682, 66 S.Ct. 773, 90 L.Ed. 939 (1945). In Count I, the plaintiffs allege that defendant Rich Plan violated the FTC Act, 15 U.S.C. § 45, and these alleged 586 violations form the sole basis for the relief sought in Count I. For the purposes of ruling upon a motion to dismiss, the court must accept all of the allegations in the complaint as true. Conley v. Gibson, 355 U.S. 41, 78 S.Ct. 99, 2 L.Ed.2d 80 (1957). In pleading paragraph 40 of Count I of the amended complaint, plaintiffs have alleged that defendant Rich Plan has used sales practices which have been found and declared to be unlawful under 15 U.S.C. § 45(a)(1) by the Federal Trade Commission. See, In the Matter of Rich Plan Corporation et al., No. C-614, before the Federal Trade Commission, October 31, 1963 (Exhibit "C", Plaintiffs' Reply Brief). Defendant Rich Plan's motion to dismiss is based upon the theory that the Federal Trade Commission Act itself contains no provisions for private enforcement because the Commission has original jurisdiction over the acts complained of. LaSalle Street Press, Inc. v. McCormick and Henderson, Inc., 293 F.Supp. 1004 (D.C.Ill.1968). ANALYSIS OF ISSUES RAISED BY COUNT I The theoretical framework for implying a private right of action from a federal regulatory statute is known as the "doctrine of implication". See, Holloway v. Bristol-Myers, supra. In order to imply a remedy under the doctrine, the court must determine that (1) the provision violated was designed to protect a class of persons including the plaintiffs from the harm of which the plaintiffs complain, and that (2) it is appropriate in light of the statute's purposes to afford plaintiffs the remedy sought. See, Bivens v. Six Unknown Named Agents of the Federal Bureau of Narcotics, 403 U.S. 388, 91 S.Ct. 1999, 29 L.Ed.2d 619 (1971); J. I. Case v. Borak, 377 U.S. 426, 81 S.Ct. 1555, 12 L.Ed.2d 423 (1964). Federal Courts have historically found that no private action could be implied from the Federal Trade Commission Act. Holloway v. Bristol-Myers, supra, Carlson v. Coca-Cola Company, 483 F.2d 279 (9th Cir. 1973). Since 1914, the Federal Trade Commission has been responsible for enforcing the provisions of the act. See "FTC Rulemaking v. Private Enforcement", 69 Nw.U.L.Rev. 462 (1974). However, the efficacy of the Federal Trade Commission in acting to deter consumer fraud is suspect. Most defrauded customers have no remedy at all because the Government cannot possibly act in more than a small fraction of all of the cases of deceit and overreaching against consumers. The Federal Trade Commission currently receives about 9,000 complaints a year and is only able to investigate one out of eight or nine of these, and, of the small fraction investigated, only one in ten results in a cease and desist order. Robert Eckhard, "Consumer Class Actions", 45 Notre Dame Lawyer, 663 at 640 (1970), citing E. Cox, R. Fellmeth, and J. Schultz, "The Nader Report on the Federal Trade Commission: (1969). Even then, the efficiency of a cease and desist order entered by the Federal Trade Commission has been severely criticized. The Chairman of the Federal Trade Commission, Mr. Lewis Engman, has stated that: "From a purchaser's point of view, a cease and desist order entered by the Federal Trade Commission is far short of the mark." Engman, "New Consumer Standards", 40 Ins. Counsel J., 524 at 526. As a case on point, the record of the Federal Trade Commission's proceedings against the Holland Furnace Company over a 29 year span bears mute testimony to the Commission's ability to protect consumers from ongoing fraud. Holland Furnace Co. v. FTC, 269 F.2d 203 (7th Cir. 1960); Eckhard, "Consumer Class Actions" supra, at 667. The Federal Trade Commission first issued a cease and desist order against Holland in 1936. Complaints against the company continued unabated, but the Federal Trade Commission did not institute enforcement proceedings until 1965 for violations of the cease and desist order. In Re Holland Furnace Co., 341 F.2d 548 587 (7th Cir. 1965). The ineffectiveness of the Federal Trade Commission was argued in the Holloway case. The court referred to the delay of over a decade in prosecuting the action as "extreme caution" on the part of the Federal Trade Commission. Holloway v. Bristol-Myers, supra at 1000. While complaints of this nature have become more frequent, Congress has not seen fit to alter the basic statutory plan as it was amended in 1938. See White, "FTC: Wrong Agency for the Job of Adjudication", 61 A.B.A.J. 1242 (1975). The Magnuson-Moss Warranty Federal Trade Commission Improvement Act, 88 Stat. 2183 (1974) expanded consumer remedies but does not alter the Federal Trade Commission Act as it relates to suits of this type. In this case, as in the Holloway case, the Federal Trade Commission is not a party in the suit and private litigants are attempting to establish a right of action under 15 U.S.C. § 45. However, the factual context of Holloway is significantly different from the case at bar. Until 1970, all attempts by private litigants to prevail in actions based on the Federal Trade Commission Act were undertaken by injured competitors. Holloway was the first case to deal with the problem of a private remedy for consumers under the Act. Mrs. Holloway, a housewife, filed a class action against Bristol-Myers Corporation on behalf of those persons who were induced to purchase the pain reliever "Excedrin" in reliance upon the manufacturer's advertising representations. The suit charged that the company violated the Act by misrepresenting the effectiveness of the product. The actual damages suffered by Mrs. Holloway were minimal being the difference in price between six 50 tablet bottles of Excedrin and the same number of aspirin tablets. The District Court held that it had no jurisdiction over a private action brought under the Federal Trade Commission Act and that the plaintiffs failed to state a claim upon which relief could be granted. Holloway v. Bristol-Myers Corp., 327 F.Supp. 17 (D.D.C.1971). That ruling was upheld by the DC Circuit with dicta to the effect that private enforcement of the Federal Trade Commission Act would pose serious problems to the enforcement activities of the Federal Trade Commission and that it would be inconsistent with the legislative scheme established by Congress. Holloway v. Bristol-Myers, 158 U.S.App.D.C. 207, 485 F.2d 986 at 989 (1973). Unlike Holloway, this case was filed to seek relief from the defendant's deceptive practices and acts and unfair methods of competition in violation of 15 U.S.C. § 45(a). The plaintiffs also allege that the defendant Rich Plan of the Midwest is operated as a franchise of the Rich Plan Corporation. Further, it is alleged that a cease and desist order was issued by the Federal Trade Commission on October 31, 1963 ordering: ". . . respondent Rich Plan Corporation, a corporation, and its officers, and respondent Rich Plan of New Orleans, Inc., a corporation, and its officers, and respondents' agents, representatives and employees, directly or through any corporate or other device, in connection with the offering for sale, sale or distribution of freezers, food or freezer plans in commerce, . . ., do forthwith cease and desist from [various deceptive acts and practices which are nearly identical to the acts complained of in the instant case]." Assuming, for the purpose of the motion to dismiss, that all of the allegations in the complaint are true, defendant Rich Plan of the Midwest, which was allegedly operated as a franchise of the Rich Plan Corporation, would fall within the class defined in the consent decree. As the activities of the companies involved in the consent decree above are nearly identical to the alleged activities of the defendant Rich Plan of the Midwest, it may be inferred that the Federal Trade Commission would have the same view of the practices in this case as it had of the practices that it ruled on in the 1963 cease and desist order. If that is the case, then, since the Federal Trade 588 Commission has examined the complained of practices and found them wanting, one of the hurdles to the private enforcement of the Federal Trade Commission Act has been cleared that being that the Federal Trade Commission, with its overview of the national economy, is in a better position than a private litigant to gauge the injury a deceptive practice will cause of the public and to balance this against the likely cost of elimination the practice. It would appear that the Federal Trade Commission had put its ponderous administrative processes in motion to enforce the Act against the Rich Plan Corporation. If, as it is alleged in the complaint, agents, employees, or representatives of Rich Plan Corporation have violated the Federal Trade Commission Act in their dealings with consumers, and have thus violated the cease and desist order issued in 1963, then the conclusion seems inescapable that the Federal Trade Commission Act, as enforced by the Commission, is an empty promise to consumers. The reasons which were set forth in Holloway to subrogate the consumers' interest to the "expert judgment" of the Federal Trade Commission are not present in this case. See, Holloway, supra, at 997. That court enumerated problems which might be presented to the Federal Trade Commission's enforcement of the act if private actions were "given a full head of steam", i. e. piecemeal lawsuits which would burden the defendants and the judicial system. The Holloway opinion's basis for finding that the enforcement of the Federal Trade Commission Act was discretionary and subject only to the "expert judgment" of the Federal Trade Commission rests upon the court's conclusion that ". . . Congress intended enforcement of the Wheeler-Lea Amendments to rest wholly and exclusively with the Federal Trade Commission, following the pattern laid down in the 1914 Act". Holloway, supra, at 997. This conclusion is reached without any citation of authority. This court has been unable to find any Federal case which has held that the Commission has exclusive jurisdiction, rather, its jurisdiction has been held to be primary rather than exclusive. Moore v. New York Cotton Exchange, 270 U.S. 593, 46 S.Ct. 367, 70 L.Ed. 750, 756 (1926). There is no legislative intent that the Federal Trade Commission was to have "exclusive" jurisdiction. To infer that once the Federal Trade Commission has entered a case and enforced compliance with the Act, that subsequent private consumer actions would frustrate the purposes of the Act would deny consumers who were victimized by further violations any recovery. In weighing the benefits to the consumer against any possible damage to the Federal Trade Commission's role in "providing certainty and specificity to the broad proscriptions of the Act", [Holloway, at 998], the court must opt in favor of the consuming public. To conclude that, without exception the Federal Trade Commission, with its overview of the national economy, is in a better position than a private litigant to gauge the injury a deceptive practice will cause to the public and to balance this against the likely cost of eliminating the practice would be to seemingly ignore the basic premise of the free enterprise economy that consumers should have the opportunity to choose between competing merchants on the basis of price, quality and service. The Federal Trade Commission Act has been the subject of 60 years of interpretation through adjudication and over ten years of rulemaking. See Gard, "Purpose and Promise Unfilled: A Different View of Private Enforcement Under the Federal Trade Commission Act", 70 Nw.U.L.R. 274 (1975). Both businessmen and courts should have no trouble determining the precise stricture of the act. In order to effectuate the purposes of the act in the face of the record before the court in this case, the defendant Rich Plan's motion to dismiss must be denied as to Count I. The conduct that defendant Rich Plan has allegedly engaged in to the detriment of the plaintiffs 589 was ruled upon by the Federal Trade Commission in 1963 in another district. Therefore, the court holds that the plaintiffs do state a claim upon which relief can be granted by alleging that the practices engaged in by defendant Rich Plan are proscribed by the Federal Trade Commission Act. The plaintiffs have stated a cause of action, 15 U.S.C. § 45(a)(1), in their amended complaint for the reasons set out above. COUNT II In Count II of the amended complaint, the plaintiffs seek to recover treble damages due to violations of 15 U.S.C. § 2, by the defendant Rich Plan. The Court has jurisdiction over the acts complained of in Count II pursuant to 15 U.S.C. § 15. The defendant Rich Plan has moved the court to dismiss for failure to state a cause of action. (Rule 12(b)(6), Federal Rules of Civil Procedure.) The plaintiffs have alleged that Rich Plan had a specific intent to monopolize a part of interstate commerce through the use of certain unfair methods of competition and by unfair or deceptive acts. For the purposes of a motion to dismiss, the court must accept the allegations of the plaintiffs as true, but the court must also read the complaint as a whole. The essence of the monopolization offense under § 2 is, (1) the possession of monopoly power in the relevant market and, (2) the willful acquisition of maintenance of that power as distinguished from growth or development as a consequence of a superior product, business acumen or historic accident. United States v. Grinnell Corp., 384 U.S. 563, 86 S.Ct. 1698, 16 L.Ed.2d 778 (1966); Sulmeyer v. Coca-Cola Company, 515 F.2d 835 (5th Cir. 1975). This court subscribes to the view that the antitrust plaintiff bears the burden to show the defendant possesses monopoly power in the relevant market. Sulmeyer, Id. at 849; Acme Precision Products, Inc. v. American Alloys Corp., 484 F.2d 1237 (8th Cir. 1973); United States v. Empire Gas Corp., 393 F.Supp. 903 (D.C.Mo.1975). The plaintiffs have not sustained their burden of pleading the necessary requisites for an action under 15 U.S.C. § 2. Thus, even if the court were to rule that the said plaintiffs possess the necessary standing, the plaintiffs would fail to state a claim under Rule 12(b)(6) and the applicable case law with reference to the § 2 violations alleged in Count II. The defendant Rich Plan's motion to dismiss Count II is, therefore, granted. COUNT III In Count III, the plaintiffs allege that the defendant Rich Plan, James I. McMahon, William E. McMahon, and Anthony Konopiots violated provisions of the Securities Act of 1933, 15 U.S.C. § 77a et seq. The violations allegedly arose from the interstate sale and purchase of a "Food and Freezer Service Agreement" (FFSA) and a "referral sales agreement" by these defendants. The defendants, Rich Plan and Anthony Konopiots, have filed motions to dismiss directed to the allegations contained in Count III of the amended complaint. Defendants, James McMahon and William McMahon, filed an answer to the complaint which contained affirmative defenses directed to the issue raised by the plaintiffs in Count III. Basically, Count III alleges that the plaintiffs purchased a Food and Freezer Service Agreement; that the FFSA had little or no commercial value; and that the FFSA was purchased by the plaintiffs from the said defendants as a "referral sales agreement". Supposedly, the plaintiffs would receive twenty dollars each for each successful referral sale after they had purchased an FFSA costing Four Hundred and Ninety-nine Dollars. The FFSA, on its face, is clearly not a security within the meaning and definition of the statute nor does it survive the test set forth in SEC v. W. J. Howey Co., 328 U.S. 293, 66 S.Ct. 1100, 90 L.Ed. 1244 (1943): An investment of money in 590 a common enterprise with profits to come solely from the efforts of others. The remaining question is whether the referral sales agreement, offered in conjunction with the FFSA, is a security. In determining the meaning and scope of the word "security" under the Howey test, form should be disregarded for substance and the focus should be on economic reality. Howey, Id.; Tcherepnin v. Knight, 389 U.S. 332, 88 S.Ct. 548, 19 L.Ed.2d 564 (1967); United Housing Foundation, Inc. v. Forman, 421 U.S. 837, 95 S.Ct. 2051, 44 L.Ed.2d 621 (1975). The FFSA is a signed document which provides, inter alia, that the customer has the right to buy food from Rich Plan, that certain protections will be provided if the customer is sick or unable to work and cannot make payments, that Rich Plan will service the freezer (which is bought under a separate agreement) for a period of ten years if the customers continue to make purchases on a "regular basis", and that Rich Plan will guarantee to save shopping trips and the cost of impulse buying. Basically for $499.00, the purchaser receives the right to buy food at the current price from Rich Plan and that Rich Plan will service their freezer if they should happen to buy a freezer from Rich Plan. The referral sales agreement is allegedly offered to the purchaser of the FFSA, either as an inducement or as an afterthought, and the purchaser will receive twenty dollars for each name that is given to the salesman that results in another sale. There are contrary contentions by the parties as to when and how the referral sales agreement is offered to the customer. If, as plaintiffs allege, the referral sales pitch was utilized by the salesman to induce the prospect to purchase the FFSA, then the activity would be prohibited by I.C. (1971) 24-4.5-2-411 as alleged in Count XII of the complaint. However, at this point, the court is not concerned with the possible State Law violation, but only whether the FFSA and the referral sales agreement constituted a security as defined by 15 U.S.C., § 77b(1) and the applicable case law cited above. The court, having considered the record and all filings in this case and being fully advised in the premises finds that, regardless of when the salesman offered the referral sales agreement, the FFSA and the referral sales agreement are not the type of instruments that in our commercial world fall within the ordinary concept of security. See United Housing Foundation, Inc. v. Forman, 95 S.Ct. 2051, at 2058. The FFSA was neither purchased nor sold as an investment, therefore there can be no investment contract, hence no security. The referral sales agreement, which provided for a $20.00 referral fee, is not an instrument commonly known as a security and the court will not attempt to extend the definitions of a "security" to encompass such a transaction as is alleged here. SEC v. Koscot Interplanetary, Inc., 365 F.Supp. 588 (D.C.Ga.1973). Therefore, since the court has found that neither the FFSA nor the referral sales agreement, alone or in combination, are securities under the Act, the Court has no jurisdiction over Count III. Therefore, it is ordered that defendants' motions to dismiss as to Count III be, and the same are hereby granted. COUNTS IV and V In Counts IV and V, the plaintiffs have alleged that defendant Rich Plan has violated the Federal Truth-in-Lending Act, 15 U.S.C., § 1601 et seq., and Regulation Z promulgated thereunder (12 CFR § 226.1 et seq.) The court assumes jurisdiction of the above two counts pursuant to 15 U.S.C. § 1640(e). See Allen v. Beneficial Finance Co. of Gary, Ind., 393 F.Supp. 1382 (D.C.Ind. 1975). The defendant Rich Plan has filed an answer to these two counts. COUNTS VI through XII Counts VI through XII, inclusive, allege various violations of Indiana State Laws and common law torts. The plaintiffs allege jurisdiction pursuant to 28 U.S.C., § 1332, or, in the alternative, the doctrine of pendant jurisdiction. The defendant Rich Plan filed a motion to *591 dismiss directed to said counts alleging that the doctrine of pendant jurisdiction does not apply as the Federal claims made in the prior counts are insubstantial and the complaint, in fact, sets forth state law claims. Rich Plan contested the jurisdictional amount but the court ordered that part of the motion to dismiss stricken by an order dated June 18, 1975. The defendant Rich Plan also requests that the court abstain from the exercise of jurisdiction as to Counts VI through XII. Abstention is an equitable doctrine founded on the court's exercise of judicial discretion. It is an extraordinary and narrow exception to the duty of a federal court to adjudicate the controversy before it. Fed. Power Commission v. Corporation Commission of the State of Oklahoma, 362 F.Supp. 522 (D.C.Okl.1973); Partnow v. Moran, 359 F.Supp. 519 (D.C.Del.1973). Abstention is not a doctrine that defers to state courts, preserving comity by creating additional hardships for the parties, especially the plaintiff. Rather, it is a rule of discretion to be exercised when the district court believes that some asset particular to the state court's jurisdiction will most likely aid in adjudicating the merits of the litigation. Bond v. Dentzer, 362 F.Supp. 1373 (D.C.N.D.N.Y. 1973); Railroad Comm'n of Texas v. Pullman Co., 312 U.S. 496, 61 S.Ct. 643, 85 L.Ed. 971 (1941). Abstention is a judge-made doctrine. As such, it is left to the discretion of the court to properly determine its applicability in any particular instance. The court sees no reason to exercise its discretion in favor of abstention in this case. Therefore, the defendant Rich Plan's motion to dismiss Counts VI through VII is denied and the court assumes jurisdiction of said counts under 28 U.S.C. § 1332, or, in the alternative, the doctrine of pendant jurisdiction. Therefore, for the reasons set out above, Counts II and III are ordered dismissed and the defendants' motions to dismiss are denied in all other respects.	{ "pile_set_name": "FreeLaw" }
760 F.2d 783 12 O.S.H. Cas.(BNA) 1310, 1984-1985 O.S.H.D. ( 27,259 Raymond J. DONOVAN, Secretary of Labor, Petitioner,v.ALLIED INDUSTRIAL WORKERS OF AMERICA and its Local No. 876,Respondents. No. 83-2831. United States Court of Appeals,Seventh Circuit. Argued Nov. 2, 1984.Decided April 22, 1985. Domenique Kirchner, U.S. Dept. of Labor, Washington, D.C., for petitioner. Matthew R. Robbins, Goldberg, Previant, Uelmen, Gratz, Miller & Breggeman, Milwaukee, Wis., for respondents. Before WOOD and FLAUM, Circuit Judges, and HAYNSWORTH, Senior Circuit Judge.* HARLINGTON WOOD, Jr., Circuit Judge. 1 In this petition to review an order of the Occupational Safety and Health Review Commission, we are asked to determine whether the Occupational Safety and Health Act of 19701 permits affected employees or their representative to challenge in administrative proceedings a settlement agreement between the Secretary of Labor and a cited employer where the employee challenge is not limited to the reasonableness of the period allowed in the settlement for abatement. Originally in Mobil Oil Corp.,2 the Commission had held that employees should be heard on all aspects of employer-contested citations and at all stages of the Review Commission proceedings including settlement. This decision, however, was reversed. Donovan and Mobil Oil Corporation, Intervenor v. Occupational Safety and Health Review Commission, 713 F.2d 918 (2d Cir.1983). Since that decision and others, the Commission has re-examined its own precedent and now holds that employees or their representative may object only to the reasonableness of the period of time allowed in a settlement agreement for abatement, and not to the manner of abatement. Pan American World Airways, Inc., 1984 O.S.H. DEC. (CCH) p 26,920. 2 This circuit, in International Union (UAW) v. Occupational Safety and Health Review Commission, 557 F.2d 607 (7th Cir.1977), foreshadowed our decision in this case by holding that the Commission may review only the reasonableness of the period of time fixed in the citation for abatement of the violation. In the present case, however, the circumstances are somewhat different as we are examining a settlement agreement in a proceeding in which the employees had elected to participate as parties.3 3 The facts may be briefly summarized. The Secretary had issued a citation against Archer Daniels Midland Company of Decatur, Illinois, for two violations of Sec. 5(a)(1) of the Act4 which the company contested. The violations were for failure to equip freight elevators and elevator landings with entrance doors or gates. The employees' representative requested and was granted party status. The citation had directed that the two hazards respectively be abated by March 23, 1983 and June 20, 1983, and that the company be fined $560 for each violation. The Secretary and the employer thereafter entered into a settlement agreement which cut the penalty in half and extended the abatement time for both violations to July 1, 1983. The union objected to the penalty reduction and charged that the employer already had defaulted on the first abatement date. The administrative law judge scheduled a hearing on the union's objections. The Secretary sought to vacate the hearing assignment and to enter the settlement agreement or, alternatively, certification of an interlocutory appeal. The administrative law judge denied the Secretary's motion to vacate the hearing assignment, and his request for certification. The Secretary then petitioned the Commission for interlocutory appeal. When the Commission failed to rule on the petition, the Secretary petitioned this court for review of the hearing order. 4 The union questions the jurisdiction of this court on the ground that the order appealed from does not finally determine the merits of the case. The Secretary argues that the order appealed from falls within the "collateral order" doctrine of Cohen v. Beneficial Industrial Loan Corp., 337 U.S. 541, 69 S.Ct. 1221, 93 L.Ed. 1528 (1949). Applying the Cohen criteria in related circumstances, other circuits have found that orders which effectively conclude that the Commission has jurisdiction to review all union or employee objections to settlement agreements or which in some other way infringe upon the Secretary's prosecutorial discretion and enforcement powers are collaterally final and reviewable.5 We need not detail the Cohen analysis of appealability here; other circuits already have competently done so, and we join in finding such an order appealable under Cohen. 5 On the merits we likewise join the other circuits in holding that employees or their representative, despite their party status, are not entitled to a hearing on all objections to the settlement agreement between the Secretary and their employer.6 Only the reasonableness of the abatement period may be challenged. The decision to settle a citation is an exercise of the Secretary's prosecutorial discretion and enforcement powers. Once a settlement agreement is reached and the employer attendantly withdraws its notice of contest to the citation or penalty, the Commission is ousted of jurisdiction to review employee or union objections to the method of abatement or the penalty imposed. 6 That the Secretary in the past had acceded to Commission review of his settlement agreements does not mean that he is forever bound to accept unquestionably the Commission's purported plenary jurisdiction over settlements. We view the exercise of such jurisdiction as an infringement on the prosecutorial discretion of the Secretary. The union urges us to impose on the Secretary the constraints which the NLRB imposes on its general counsel in reviewing settlements. NLRB v. Martin A. Gleason, Inc., 534 F.2d 466, 482 (2d Cir.1976). To try to construct that analogy in deciding the present issue would be an unrewarding excursion. 7 We decide this case without turning any new legal soil, and intend only to make clear that the law in this circuit on the particular issues involved is as it is in the other circuits. 8 REVERSED. * The Honorable Clement F. Haynsworth, Senior Circuit Judge of the Fourth Circuit, is sitting by designation 1 29 U.S.C. Sec. 651 et seq 2 10 O.S.H. Cas. (BNA) 1905 (1982) 3 29 U.S.C. Sec. 659(c) 4 29 U.S.C. Sec. 654(a)(1) 5 Donovan v. Int'l Union, Allied Industrial Workers, 722 F.2d 1415 (8th Cir.1983) (Commission order remanding settlement agreement to ALJ for consideration of union objections to reduction of penalty); Donovan v. United Steelworkers, 722 F.2d 1158 (4th Cir.1984) (order by ALJ setting date for hearing on union's objections to merits of settlement agreement); Donovan and American Petrofina Co. v. Oil, Chemical and Atomic Workers Int'l Union, 718 F.2d 1341 (5th Cir.1983), cert. denied, --- U.S. ----, 104 S.Ct. 2344, 80 L.Ed.2d 818 (1984) (Commission order denying Secretary's motion to vacate the order for review); Donovan and Mobil Oil Corp. v. OSHRC and Petroleum Trades Employees Union, 713 F.2d 918 (2d Cir.1983) (Commission order remanding proposed settlement agreement to ALJ for consideration of union objections to method of abatement); Marshall and American Cyanamid Co. v. Oil, Chemical & Atomic Workers Int'l Union and OSHRC, 647 F.2d 383 (3d Cir.1981) (Commission order granting union's petition for review of its objections to settlement agreement); Marshall and IMC Chemical Group, Inc. v. OSHRC, 635 F.2d 544 (6th Cir.1980) (Commission order denying Secretary's motion to withdraw citation) 6 Donovan v. Local 962, Int'l Chemical Workers Union, 748 F.2d 1470 (11th Cir.1984); Donovan v. Int'l Union, Allied Industrial Workers, 722 F.2d 1415 (8th Cir.1983); Donovan v. United Steelworkers, 722 F.2d 1158 (4th Cir.1983); Donovan v. Oil, Chemical & Atomic Workers Int'l Union, 718 F.2d 1341 (5th Cir.1983); Donovan and Mobil Oil Corp. v. OSHRC and Petroleum Trades Employees Union, 713 F.2d 918 (2d Cir.1983)	{ "pile_set_name": "FreeLaw" }
738 F.Supp. 1472 (1990) TRANSNOR (BERMUDA) LIMITED, Plaintiff, v. BP NORTH AMERICA PETROLEUM, Conoco Inc., Shell Oil Company, BP Oil International Ltd., Conoco (U.K.) Ltd., Shell U.K. Ltd., Shell International Trading Co., and Exxon Corporation, Defendants. No. 86 Civ. 1493 (WCC). United States District Court, S.D. New York. April 18, 1990. 1473 1474 Edward J. Swan, New York City, for plaintiff. Davis, Markel & Edwards, New York City (Gregory A. Markel, David Dunn, Ann Alexander, of counsel), for defendants Conoco Inc. and Conoco (U.K.) Ltd. Sullivan & Cromwell, New York City (William E. Willis, James H. Carter, Gandolfo V. DiBlasi, Michael Straus, William J. Snipes, of counsel), for defendant Exxon Corp. OPINION AND ORDER WILLIAM C. CONNER, District Judge: This action under the antitrust and commodity laws is before the Court on defendants' motion for summary judgment. BACKGROUND Plaintiff Transnor (Bermuda) Ltd. ("Transnor") is a corporation established under the laws of Bermuda and with its principal place of business there. Transnor's suit arises out of its purchase of two cargoes of North Sea Crude Oil in December 1985 at an average price of $24.50 per barrel for delivery in Scotland in March 1986. Transnor refused to take delivery of these cargoes because their market value had declined after Transnor entered into the contracts.[1] 1475 Transnor claims that remaining defendants Conoco Inc., Conoco (U.K.) Ltd. (collectively "Conoco") and Exxon Corporation ("Exxon"), conspired with the settling defendants[2] to cause a decline in crude oil prices by jointly selling cargoes of Brent blend crude oil ("Brent Oil") at below-market prices. Brent Oil is a blend of oils produced in various fields in the North Sea and delivered through pipelines for loading onto cargo ships at Sullem Voe in the Shetland Islands. By the end of March 1986, the price of a barrel of Brent Oil had dropped substantially to $13.80 per barrel, from $29.05 per barrel in November 1985. Transnor asserts claims against defendants for violations of the Sherman Act, 15 U.S.C. § 1 (1982), and sections 4(c), 6(b), and 6(a) of the Commodity Exchange Act ("CEA"), 7 U.S.C. §§ 6(c), 9 and 13(b) (1980 & 1989 Supp.). Defendants have moved for summary judgment pursuant to Rule 56, Fed.R. Civ.P. on the grounds that (1) Transnor lacks standing to sue under the antitrust laws and the CEA or, alternatively, that the Court should decline to exercise jurisdiction under principles of comity and international law; (2) there is no evidence that defendants conspired to drive down the price of oil in violation of the antitrust laws; (3) Transnor's injury is not cognizable under Section 4 of the Clayton Act, 15 U.S.C. § 15 (1973 & 1990 Supp.) because there is no evidence that defendants' behavior caused oil prices to fall; and (4) defendants' conduct was neither governed by nor in violation of the CEA. For the following reasons, the motion is denied. ANTITRUST AND COMMODITY LAW STANDING Defendants first move for summary judgment on the ground that Transnor lacks standing under both the Sherman Act, 15 U.S.C. §§ 1 et seq. and the Commodity Exchange Act, 7 U.S.C. §§ 1 et seq. In an opinion and order dated August 5, 1987 ("Order"), this Court denied defendants' motion to dismiss pursuant to Rule 12, Fed.R.Civ.P. Transnor (Bermuda) Ltd. v. BP North America Petroleum, 666 F.Supp. 581 (S.D.N.Y.1987). One of the grounds advanced by defendants for dismissal was that Transnor lacked standing under the antitrust and commodity laws. Accepting the facts alleged by Transnor as true, as a court must on a motion to dismiss, I found that the Brent Oil Market, in which Transnor allegedly suffered its injury, is "primarily a U.S. market," or at least a "part of U.S. commerce." Id. at 583. The Court accordingly held that Transnor had standing under U.S. antitrust and commodity laws. Defendants then moved the Court to certify for immediate appeal the question of "whether Transnor, a foreign corporation which engaged in no business in this country, has standing to sue for injuries allegedly suffered in wholly foreign trading on an international market merely because it is alleged that there are U.S. participants trading in that market as well." The Court denied the motion because the question for certification had misstated the underlying basis for the Court's initial ruling, in which the Court specifically accepted as true Transnor's unrefuted allegation that the Brent Market is a U.S. market and not merely an international market. Transnor (Bermuda) Ltd. v. BP North America Petroleum, 677 F.Supp. 777 (S.D.N.Y.1988). The Court thereafter stated that, [i]f, after conducting pre-trial discovery, defendants uncover evidence indicating that the Brent Market is indeed an international market with no direct impact on 1476 U.S. commerce, then it may be appropriate for them to move for summary judgment on the ground that plaintiff lacks standing under the antitrust laws. Id. at 778. Defendants now move accordingly for summary judgment, insisting that the undisputed facts demonstrate that the Brent Market is an international market and that Transnor, therefore, lacks standing under U.S. antitrust and commodity laws. While U.S. antitrust laws give this Court jurisdiction over antitrust claims that arise from actions directly affecting U.S. commerce, only persons or corporations injured while trading in U.S. foreign or domestic commerce have the standing necessary to bring such claims.[3] In de Atucha v. Commodity Exchange, Inc., 608 F.Supp. 510 (S.D.N.Y.1985), the district court held that foreigners who trade "exclusively" on a foreign exchange do not have standing under either U.S. antitrust or commodity laws. The court noted that "the first prerequisite to a determination that a plaintiff was injured in `the relevant market' is a finding that the market is part of American foreign or domestic commerce." Id. at 518. Because Transnor's claims rest on injury from anticompetitive activity in the Brent Market, the issue presented here is whether the Brent Market is a part of American foreign or domestic commerce or is an exclusively foreign market. According to Judge Lasker in de Atucha, "Congress did not contemplate recovery under the antitrust laws by an individual who traded, and was injured entirely outside of United States commerce." Id. at 518. The court further held that "such transactions were not intended to be and are not regulated under the [CEA]." Id. at 523. Judge Lasker then found that the plaintiff, having traded on an exclusively foreign market, lacked standing. This case, however, presents a wholly different situation wherein the plaintiff claims that the market on which it traded was a U.S. market or had a direct impact on U.S. commerce, a nexus with the United States sufficient to invoke standing. Because 95% of the trades in the Brent Market are made for speculative or hedging purposes not calling for actual delivery of the oil, the appropriate inquiry involves a consideration of the location of the trading market. The location of the production area and the delivery point are manifestly much less relevant. See Transnor (Bermuda) Ltd. v. BP North America Petroleum, 666 F.Supp. 581, 583 (S.D.N.Y. 1987). Where the contracts at issue were made is equally unimportant if the market itself is considered a U.S. market or directly impacts U.S. commerce. See id. A plaintiff should not be penalized for the utilization of a foreign branch of a market instead of an equally accessible American branch. As this Court has previously stated, Transnor's choice to purchase the contracts through the London branch, rather than in New York or Houston, "does not lessen Transnor's ability to vindicate Congress's clearly expressed desire that foreigners have standing to sue under the U.S. antitrust laws if the alleged course of anti-competitive conduct has the requisite impact on U.S. commerce." Transnor, 666 F.Supp. at 584. The unrefuted evidence establishes that of the 109 traders and brokers Transnor knew to be active in the Brent Market, 88 had offices located in the United States and at least 6 traded exclusively in the United States. It is further uncontested that two of the three principal trading centers of the Brent Market are located in the United States, specifically, New York and Boston. Where the market in question has even slight direct ties to U.S. commerce, that market is not an exclusively foreign market and is therefore deemed a U.S. market. While the Brent Market may be a substantially foreign market, Transnor has presented sufficient proof that the Brent Market is not an exclusively foreign market, and thus a U.S. market. 1477 Moreover, Brent Oil is imported into the United States and it may be delivered to fulfill Light Sweet crude oil contracts traded on the New York Mercantile Exchange. These indirect ties to U.S. commerce further support the determination that Transnor has standing to assert claims arising from trades executed on the Brent Market. Accordingly, the Court concludes that Transnor has standing under U.S. antitrust and commodity laws. COMITY AND INTERNATIONAL LAW Defendants next move this Court to stay its hand under principles of comity and international law, claiming that an assertion of jurisdiction by this Court would "affront legitimate and powerful British interests." In evaluating the interests of a foreign government prior to determining whether to assert jurisdiction over a transaction occurring outside the United States, the courts have generally applied a "jurisdictional rule of reason," which seeks to balance the competing interests asserted. The parties agree that the applicable principles of comity among nations is set forth in Timberlane Lumber Co. v. Bank of America Nat'l Trust & Sav. Ass'n, 749 F.2d 1378 (9th Cir.1984), cert. denied, 472 U.S. 1032, 105 S.Ct. 3514, 87 L.Ed.2d 643 (1985). They disagree, however, on the application of the seven principles espoused by Timberlane to the facts at hand. For the following reasons, the Court finds that comity principles do not compel the Court to decline to exercise jurisdiction. The Court must first determine whether the extraterritorial enforcement of United States antitrust and commodity laws create an actual or potential conflict with the laws and policies of other nations. Defendants assert that the Securities and Investments Board ("SIB")the British government agency with jurisdiction over United Kingdom ("U.K.") financial marketshas adopted a Consultive Document on the Future Regulation of the Oil Markets and an Oil Market Code of Conduct in February and March 1988, which presents guidelines for the forward trading of Brent Oil, and that SIB intends to promulgate regulations thereon. Transnor contends that defendants' speculation on the future action of SIB does not create a conflict with foreign law or policy. Transnor also states that no binding regulation of Brent Market trading presently exists in the U.K. The Court agrees with Transnor that application of U.S. antitrust and commodity laws does not create either an actual or potential conflict with existing British government regulation of Brent Market transactions. That a conflict may arise in the future should the British government act is too uncertain to weigh against the exercise of jurisdiction. Next to be weighed are the headquarters and other office locations of the party corporations, as well as citizenship of persons involved in the alleged illegal conduct. In this case, of the three remaining defendants, Conoco Inc. and Exxon are U.S. corporations, headquartered in the U.S., and Conoco (U.K.) Limited is a subsidiary of Conoco Inc., controlled and directed by its parent. Transnor, a Bermuda corporation, transacted business internationally. Although the relevant transactions were effected through the London branch of the Brent Market, the parties' ties to the United States are stronger than those to the United Kingdom. Also considered is the extent to which enforcement by either state can be expected to achieve compliance. In this case, compliance with the applicable statutes can be achieved only in the United States because there is no comparable regulation of the Brent Market in the U.K. and defendants offer no evidence that U.S. interests under the pertinent statutes can be vindicated abroad. Therefore, compliance with American law can only be assured in the United States. The Court next turns to the relative significance of the effects of the alleged illegal conduct on the domestic and foreign commerce of the United States and on commerce elsewhere. Transnor maintains and defendants admit that defendants' trading of Brent Market contracts took place mainly in the United States. It is defendants' alleged conduct in the United States which 1478 gave rise to this action. Because two of the three branches of the Brent Market are in the United States, as mentioned earlier, defendants' alleged conduct has clearly impacted U.S. commerce. This Court recognizes, of course, the equally significant impact on U.K. and international commerce. Consequently, this factor neither favors nor disfavors the exercise of jurisdiction. The Court must also consider whether defendants' actions were intended to harm or affect American commerce or the foreseeability of such effect. Transnor's complaint alleges that defendants engaged in conduct intended to depress market prices. In its submissions in opposition to the motion for summary judgment, Transnor has sufficiently demonstrated that, at the least, there are issues of fact as to whether defendants intended to affect U.S. commerce or should reasonably have foreseen such an impact. These fact issues preclude summary denial of jurisdiction on the ground of lack of the necessary scienter. Finally, a court should weigh the location of the alleged illegal conduct in order to assess the appropriateness of the exercise of extraterritorial jurisdiction. Transnor claims that the United States was the center of the illegal conduct charged. While defendants refute the substance of the charges in the complaint, they do not specifically deny that this conduct is alleged to have taken place in the United States. Clearly then, the U.S. is an important locus, if not the hub, of defendants' alleged manipulation. With all factors considered, both a quantitative and a qualitative tally favor the exercise of jurisdiction by this Courta result which should not affront British interests. ANTITRUST CLAIM Standard for Summary Judgment A party seeking summary judgment must demonstrate that "there is no genuine issue as to any material fact." Fed.R. Civ.P. 56(c); Knight v. U.S. Fire Ins. Co., 804 F.2d 9, 11 (2d Cir.1986), cert. denied, 480 U.S. 932, 107 S.Ct. 1570, 94 L.Ed.2d 762 (1987); see Celotex Corp. v. Catrett, 477 U.S. 317, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986). "When the moving party has carried its burden under Rule 56(c), its opponent must do more than simply show that there is some metaphysical doubt as to the material facts." Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586, 106 S.Ct. 1348, 1356, 89 L.Ed.2d 538 (1986). It must establish that there is a "genuine issue for trial." Id. at 587, 106 S.Ct. at 1356. "In considering the motion, the court's responsibility is not to resolve disputed issues of fact but to assess whether there are any factual issues to be tried, while resolving ambiguities and drawing reasonable inferences against the moving party." Knight, 804 F.2d at 11. However, "antitrust law limits the range of permissible inferences from ambiguous evidence in a § 1 case." Matsushita, 475 U.S. at 588, 106 S.Ct. at 1356.[4] Specifically, "conduct as consistent with permissible conduct as with [an] illegal conspiracy does not, standing alone, support an inference of antitrust conspiracy." Id.; Monsanto Co. v. Spray-Rite Service Corp., 465 U.S. 752, 764, 104 S.Ct. 1464, 1470, 79 L.Ed.2d 775 (1984). There must 1479 be direct or circumstantial evidence that "tends to exclude the possibility that the [defendants] were acting independently." Monsanto, 465 U.S. at 764, 104 S.Ct. at 1471. Moreover, in antitrust cases, "if the factual context renders [plaintiff's] claim implausibleif the claim is one that simply makes no economic sense[plaintiff] must come forward with more persuasive evidence to support [its] claim than would otherwise be necessary." Matsushita, 475 U.S. at 587, 106 S.Ct. at 1356; Apex Oil, 822 F.2d at 253 ("implausibility of a scheme will reduce the range of inferences that may permissibly be drawn from ambiguous evidence"). Description of Tax Spinning Transnor claims that defendants carried out their conspiracy through "tax spinning"the arm's-length sale by an integrated oil producer to a third party and a substantially simultaneous purchase of a similar quantity of oil at substantially the same price for use in that producer's refineries which, depending on the relation between the average market price and the price at which the trades were made, created the possibility of substantial tax savings under U.K. tax law. The crux of Transnor's claim is that from approximately November 1985 through mid-March 1986, defendants conspired to tax spin Brent Oil at below-market prices in order to reduce the U.K. taxes paid by defendants. Transnor also claims that the artificially reduced price of the spin sales drove down the market price of Brent Oil, a benchmark crude oil, as well as that of other crude oils such as West Texas Intermediate ("WTI"), an oil traded on the New York Mercantile Exchange, with which Brent Oil is virtually interchangeable. Under the U.K. Oil Taxation Act of 1975 ("Taxation Act"), the applicable petroleum revenue tax rate between April 2, 1985 and March 31, 1986 was 87%. Under the then-applicable provisions of the Taxation Act, the taxed price on sales of oil differed depending on whether the sale was at arm's length on the open market or the oil was transferred directly to an integrated producer's affiliated entity. Transfers to affiliated companies were taxed at an assessed market value, known as the tax reference price ("TRP"), which, beginning in 1984, was determined by the Inland Revenue's Oil Taxation Office ("OTO") based on an average of prices established retrospectively for a period of time prior to the interaffiliate transfer. Defendants argue that because of declining oil prices from other causes, primarily the excess supply in the world oil market caused by OPEC, the TRP was higher than the current market price and thus led to payment of taxes on sales to affiliated entities based on an artificially high rate. Rather than pay taxes based on such an inflated price, defendants entered into matched buy/sell transactions in the open market instead of transferring oil directly to their refineries. Defendants claim that tax spinning thus resulted in payment of taxes based on a more accurate market rate, not, as Transnor claims, at below-market rates. This would furnish a logical explanation of tax spinning if it was done only in a declining market, in which the tax-spin transactions were at an actual market price lower than the TRPi.e. lower than the average market prices over the past month. Whether the tax spinning was done only in such circumstances is unclear from the present record. Both parties spend considerable energy debating whether these transfers violate U.K. tax law. In brief, Transnor contends that while it was legal for an integrated oil company to sell its oil in the open market and to buy oil for its own needs, it was not legal to enter into a large number of matched buy/sell contracts at the same price in order to establish a "portfolio" of contracts for delivery months in the future. Defendants held these contracts open until the delivery month and then selected from their "portfolio" the lowest-priced sale and assigned to it oil they produced that month, known as "equity production." Producers were also able to choose among their affiliated businesses in assigning the sale, which was then reported to the tax authorities as the arms-length price at which they sold their equity production. In order to balance its portfolio for the month, other 1480 buy/sells for that month would be disposed of by "booking out"[5] or by entering into an offsetting transaction. Defendants offer a lengthy explanation for the legality of their behavior and note that after reviewing data concerning all of their Brent transactions during the relevant period, the OTO subsequently approved the portions of Conoco's and Exxon's tax returns that Transnor now challenges. Defendants state that Conoco informed the OTO that when multiple sales and purchases were made in a given delivery month, it reported the lowest-priced transaction as the arms-length sale.[6] Economic Incentive to Lower Prices Defendants argue that they had no financial motive to encourage low, rather than high, crude oil prices and thus Transnor cannot meet its increased burden to defeat summary judgment.[7] Transnor claims that defendants had the following financial incentives to encourage lower crude oil prices. First, defendants are companies, or affiliates of companies, which not only produce and refine crude oil, but also market crude oil and petroleum products made from crude oil. Lower crude prices would allow defendants to obtain higher profit margins in their sales of "downstream" refinery products, more than offsetting losses from sales of lower-priced crude oil.[8] Transnor further claims that because defendants were huge net buyers of crude oil,[9] they stood to gain from lower prices.[10] Second, defendants would reap significant financial benefits from shifting profits from Brent crude oil production, which was taxed by the United Kingdom at a rate of 87%, to refining and marketing petroleum products, which were taxed at a significantly lower rate of approximately 40%. Under the U.K. tax scheme, a dollar reduction in the price of crude oil led to an after-tax 13-cent loss to defendants on the sale of the oil, whereas defendants' refining affiliates could buy Brent Oil for a dollar per barrel cheaper and, assuming no decline in the price of refined products, increase its after-tax profit by 60 cents per barrel.[11] 1481 As further evidence that defendants had incentives to tax spin to drive down market prices, Transnor points to an Exxon document which calculated "spinning incentive, $/B". Another Exxon document stated that tax spinning "directionally effects downward pressure on market (especially forward months)." Finally, Dr. Edwin Spuller, a Transnor witness, testified that "the majors had, at [the relevant] time, an interest to make their refineries profitable, so they had an interest to damage the crude oil price." Spuller Dep. at 270. The economic plausibility of the alleged scheme is enhanced by defendants' admission that a decrease in crude oil prices temporarily widens the refining profit margin because of the time lag between the change in crude oil prices and the adjustment in the related refined product markets. An article in Weekly Petroleum Argus states that in the first quarter of 1986, Exxon and Conoco made in the downstream thirty-four and thirteen times more profit, respectively, per barrel of oil than they had made in the previous year. Defendants respond that Exxon and Shell experienced combined upstream and downstream net earnings declines during that same quarter.[12] In addition, they argue that BP's and Conoco's temporary gains were wiped out by the end of the second quarter of 1986, as the depressed price levels of crude oil and narrowed refinery margins resulted in decreased earnings. However, in the 4th quarter of 1985 and the 1st quarter of 1986, the period during which the conspiracy allegedly operated, Exxon and Conoco earned more than they did in the next three quarters combined, when Transnor alleges that tax spinning subsided and crude oil prices recovered. The parties agree that prices of refined products eventually fall when crude oil prices decline.[13] Defendants claim that they would not act to achieve short-term increases in earnings since any such gain would disappear shortly as product prices adjusted to the lower prices of crude oil, ultimately leading to substantially lower overall earnings. Defendants further argue that even if they were net buyers of crude oil, they had no incentive to drive down the price of crude oil because earnings from upstream operations are the overriding determinant of overall earnings.[14] Defendants therefore maintain that they have a strong incentive to obtain higher prices on their sales of crude oil. Transnor responds that huge profits stood to be made as long as product prices fell at a slower rate than crude oil prices. Transnor claims that defendants possessed sufficient market power to make product prices "sticky" during a period of price declines.[15] Therefore, defendants had the 1482 economic incentive to lower the prices of crude oil in order to increase their profits in the refined market and their overall earnings. In its surreply, Transnor argues that information and arguments relating to defendants' incentive to drive world oil prices down are irrelevant because defendants had an incentive to tax spin only on the Brent market and only between late 1985 and early 1986. However, the effect of low Brent prices on other oil prices is pertinent to an examination of defendants' economic incentives to engage in such a scheme. Transnor has acknowledged that "the Brent Market is one of the principal benchmarks of the world price of oil." Transnor's own expert stated that "integrated companies would not have embarked on a tax spinning strategywhich they would have expected to reduce crude prices both in the Brent market and elsewherehad they not believed that, on balance, they would gain worldwide from that strategy."[16] Robinson Decl. ¶ 70. Defendants' internal documents during the time period of the alleged conspiracy show no such expectation. For example, on October 31, 1985, Exxon's Corporate Planning Department informed Exxon's Management Committee that a $3 per barrel drop in crude oil prices during 1986-1988 would cause after-tax earnings from operations to decrease between $650 and $700 million per year.[17] Similarly, on February 25, 1986, Exxon's Management Committee was presented with a bar graph charting its outlook for 1986 which illustrated that net income would dramatically decrease if Brent prices continued to fall. On February 10, 1986, Colin Lee, Conoco's then President of Petroleum Operations predicted that "[t]he impact of a 20% drop in crude prices to $20/BBL would reduce our After Tax Operating Income by $99 million or 21% from our 1986 Profit Objective." Lee Aff. ¶ 11. These documents directly contrast Transnor's claim that defendants desired lower crude prices. However, defendants' arguments that they had no incentive to drive down the market price of Brent Oil, while superficially attractive, miss the real point. Plaintiff does not have to prove that defendants intended to drive down the market price of Brent Oil. It only has to establish that defendants conspired to rig prices in certain transactions for the purpose of understating their income and evading taxes, that this activity had the foreseeable effect of causing prices in general to decline, and that this decline caused economic injury to plaintiff. There was clearly an incentive to tax spin, and defendants do not dispute that there was. There is at least an issue of fact whether plaintiff was in the fall-out area of such activity. The Court therefore concludes that the scheme alleged is sufficiently plausible to avoid placing a higher burden on Transnor under Matsushita. Antitrust Conspiracy Section 1 of the Sherman Act proscribes "[e]very 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 ..." 15 U.S.C. § 1. A plaintiff must establish only two elements: 1) a conspiracy 2) that unreasonably restrains trade or affects interstate commerce. Belfiore v. New York Times Co., 826 F.2d 177 (2d Cir.1987), cert. 1483 denied, 484 U.S. 1067, 108 S.Ct. 1030, 98 L.Ed.2d 994 (1988). Transnor must be able to prove that defendants had a "unity of purpose or a common design and understanding, or a meeting of minds in an unlawful arrangement." International Distrib. Centers Inc. v. Walsh Trucking Co., 812 F.2d 786, 793 (2d Cir.), cert. denied, 482 U.S. 915, 107 S.Ct. 3188, 96 L.Ed.2d 676 (1987) (quoting American Tobacco v. United States, 328 U.S. 781, 810, 66 S.Ct. 1125, 1139, 90 L.Ed. 1575 (1946). Transnor has submitted no direct evidence of a conspiracy, but proof of such an agreement may be established by circumstantial evidence which permits a rational inference that defendants conspired to rig prices in Brent Oil transactions. See Interstate Circuit, Inc. v. United States, 306 U.S. 208, 59 S.Ct. 467, 83 L.Ed. 610 (1939); cf. In re Plywood Antitrust Litigation, 655 F.2d 627, 633 (5th Cir.1981), cert. dismissed, 462 U.S. 1125, 103 S.Ct. 3100, 77 L.Ed.2d 1358 (1983) ("solemnized covenants to conspire are difficult to come by ..."). As previously discussed, in determining whether such circumstantial evidence exists, a court must keep in mind the distinction between independent but parallel business actions[18] and a "conscious commitment to a common scheme designed to achieve an unlawful objective" which excludes the possibility of independent action. Monsanto Co., 465 U.S. at 768, 104 S.Ct. at 1473. Only the latter is prohibited by the antitrust laws. Conduct equally consistent with permissible business activity as with illegal conspiracy does not, standing alone, support an inference of antitrust conspiracy. Matsushita, 475 U.S. at 588, 106 S.Ct. at 1356. According to the Second Circuit Court of Appeals: a plaintiff must show the existence of additional circumstances, often referred to as `plus' factors, which, when viewed in conjunction with the parallel acts, can serve to allow a fact-finder to infer a conspiracy, Apex Oil Co. v. Dimauro, 822 F.2d 246, 253-54 (2d Cir.), cert. denied, 484 U.S. 977, 108 S.Ct. 489, 98 L.Ed.2d 487 (1987). These plus factors should not be considered in isolation; the important determination is whether the evidence viewed as a whole supports a reasonable inference of conspiracy. Id. at 254-55. Because each defendant had an independent incentive to engage in tax spinning in order to minimize the amount of tax paid on their crude oil under the U.K. tax system,[19] these "plus" factors assume extreme importance. This Court finds that the following factors, considered together, support a reasonable inference of conspiracy. Circular and other Transactions Between November 27, 1985 and February 4, 1986, defendants Exxon, BP, Shell, Conoco and alleged co-conspirator Mobil were parties to at least 16 circular sales[20] whereby the identical amount, grade and delivery date of oil was traded among them on the same day at the same price. Transnor argues that it is unlikely that independent business reasons caused these defendants to trade exactly the same quality, amount and grade of oil on the same day among themselves. Transnor argues that these transactions tend to exclude the possibility that the defendants were acting independently, especially considering that they occurred at identical prices when Brent prices can fluctuate over wide ranges in the course of a day. These transactions are certainly unusual in that the only parties who entered into them were certain defendants and Mobil. Defendants argue that Transnor lacks any documentary records establishing prearrangement 1484 and cannot rely solely on the fact that these transactions occurred. However, since all the parties acknowledge that many Brent transactions are arranged over the telephone, the absence of such records is not critical. In any event, the striking similarities among these transactions strongly supports an inference that there was some form of coordination among the parties thereto. The inference of coordination is strengthened by the fact that defendants Exxon and Conoco were able to enter into 87 and 69 buy/sells, respectively, at identical prices during a volatile period in the Brent market. Disappearance of Evidence "The nonproduction of material evidence in the control of a party raises an inference that evidence is unfavorable to that party." Tupman Thurlow Co. v. S.S. Cap Castillo, 490 F.2d 302, 308 (2d Cir.1974); see also INA Aviation Corp. v. United States, 468 F.Supp. 695 (E.D.N.Y.1979), aff'd, 610 F.2d 806 (2d Cir.1979). Transnor argues that Exxon's failure to produce the notebook of Diane Sharp, the Exxon trader responsible for the Conoco and Mobil accounts, covering the period from October 1985 to July 1986 presents an additional "plus" factor. A trader's notebooks generally contain a detailed chronological record of the trader's dealings. Sharp's notebook is clearly material as it involves the time period of the alleged conspiracy and likely contained information relating to the circular transactions with Conoco and Mobil. Pursuant to Transnor's document requests, Exxon produced all their traders' notebooks, except Sharp's notebook covering the aforementioned period. Sharp testified that the notebook existed and was in Exxon's control when she left Exxon's employ in July 1986, several months after Transnor served its document production request. An inference that the missing evidence is harmful can be rebutted by an adequate explanation of the reason for nonproduction. Tupman Thurlow, 490 F.2d at 308. Exxon claims that the notebook was inadvertently lost when Sharp left the company during a massive reduction in work-force. There is merit in defendants' argument that Transnor's failure to identify any evidence of collusion from Conoco's traders' notebooks or to attempt to obtain Mobil's traders' notebooks weakens the suspicion that Sharp's notebook might be a "smoking gun." Therefore, considered alone, the absence of this notebook clearly could not support an inference of conspiracy. However, it is an additional element which must be considered as part of the whole. See Apex, 822 F.2d at 254-55. Internal Documents Transnor points to a number of internal documents which it believes contain evidence of a coordinated strategy among defendants to rig prices in the tax-spin transactions. A November 1, 1985 memorandum written by Exxon employee E.H. Gassenheimer discussed the tax-spinning strategies of Exxon, Conoco, Shell and BP. Transnor suggests this memorandum is based on information conveyed to Exxon by the other named companies rather than information gleaned from independent research or analysis. Examination of the memorandum, however, reveals statements such as "[Shell] is believed to be trading only one or two months ahead." Further, the memorandum explicitly states that it is based on "market information." If the memorandum were based on information conveyed by the alleged co-conspirators, it would not have been necessary for the author to speculate as to what the other producers were doing. Furthermore, the author's failure to mention the strategies of other integrated producers, a failure which Transnor deems suspicious, may logically be attributable to the author's view that the other producers were not engaged in tax spinning.[21] Transnor next points to an Exxon "commercial telecon" dated November 11, 1985, which states in relevant part: "[Esso Petroleum Company] later reported that Shell have 44 BSM [Brent System] buy/sells in 1485 place for Dec of which only 13 can be spins." Defendants respond that the number of buy/sells entered into in a given month was available from other market participants, such as brokers. Defendants also claim that it is obvious that only 13 Shell trades for a given month could have been spins because Shell was entitled to lift only 13 Brent equity cargoes a month. This telecon is therefore not strong evidence that the information was provided by Shell, since it could have been provided by other market participants as well. Another Exxon "commercial telecon" dated January 21, 1986 states "1 equity cargo has been nom. out to BP. Next one will be 8th Feb cargo to Conoco. Signalled continue Feb spinning." The document does not indicate whether the individuals or entities signalled were, as Transnor contends, defendants BP and Conoco or Exxon's own traders. While this document provides support for the fact that defendants' engaged in tax-spinning transactions, which defendants do not dispute, standing alone it is too ambiguous to support an inference that defendants signalled to one another, and thereby conspired, to collude in tax spinning. After careful consideration of the evidence presented, this Court finds that Transnor has sufficiently met its burden under Matsushita to survive defendants' summary judgment motion. The evidence submitted, when viewed as a whole, could permit the trier of the facts to draw a reasonable conclusion that the actions of the defendants were not independent but the product of a conspiracy to engage in joint conduct which had the foreseeable effect of lowering the price of Brent Oil. Causation A plaintiff must prove that its business injury was caused by defendants' violation of the antitrust laws in order to recover damages under the Clayton Act.[22]See Argus, Inc. v. Eastman Kodak Co., 801 F.2d 38, 41 (2d Cir.1986), cert. denied, 479 U.S. 1088, 107 S.Ct. 1295, 94 L.Ed.2d 151 (1987). Of course, "mere conjecture or speculation by the party resisting summary judgment does not provide a basis upon which to deny [a summary judgment] motion." Id. at 42 (quoting Quarles v. General Motors Corp., 758 F.2d 839, 840 (2d Cir.1985). Defendants argue that Transnor cannot establish a causal connection between its injury and the alleged antitrust violation. In order to avoid summary judgment, Transnor must be able to provide material facts to support its claim that the 1986 price decline was caused by defendants' tax spinning rather than by other causes. The Court must first consider whether defendants actually traded at below-market prices.[23] This requires a basic understanding of the two major ways in which Brent cargoes were traded.[24] "Dated Brent" refers to cargoes which were sold for delivery at a specific date and "15-Day Brent" refers to cargoes which were sold for delivery during a specific forward month, on 15 days notice to the buyer of the date on which the cargo should be 1486 lifted. Brent was sold for delivery both in the current month and for delivery up to five months in the future. In the Brent market, prices vary depending on the date the oil will be delivered and the market participants' expectations as to how future events will affect prices. Thus, dated and undated Brent contracts essentially involve two different markets. See Sas, "The Legal Aspects of the 15 Day Brent Market (Part I)," 5 Journal of Energy and Natural Resources Law 109, 111 (1987) ("[a]lthough dated and 15-day Brent involve the same commodity, the purposes and methods of trading each are sufficiently different to justify regarding them as two distinct (albeit interrelated) markets."). According to defendants, the 1986 decline in prices for forward Brent cargoes resulted from the expectation of participants in the Brent market that future Brent prices would decline. Transnor defines "below-market prices" as (1) prices lower than those at which the Brent market was previously trading before defendants undercut it or (2) prices below the average price of non-defendants' trades for the same period. Plaintiff's Opposition Brief at 41. Defendants first respond that Transnor cannot support its claim that defendants' prices were below the average of nondefendants' trading prices. This is unclear. Colin Darracott, a former trader for the British National Oil Corporation, analyzed trading records for Transnor, and concluded that defendants traded Brent Oil at an average of 66 cents per barrel below the remainder of the market between November 25, 1985 and February 7, 1986. At first glance, this appears to support Transnor's theory of below-market prices. However, by comparing the range of prices which occur on any given trading day, Darracott's calculations fail to take into account that 1) the price of Brent Oil varies depending on the delivery month; 2) as prices declined, they were lower for more remote months than for near months; and 3) the volume of trading done near the beginning of the price decline and near the end differed. Thus, it is doubtful whether these calculations support a conclusion of below-market trading. Darracott also compared average prices for defendants and nondefendants for a given day and delivery month and found that in the 127 direct comparisons, defendants' average prices were below nondefendants' average prices 57% percent of the time and equal to or above non-defendants' average prices 43% percent of the time. However, as defendants point out, this analysis fails to take into consideration the amount by which these averages differed or whether defendants' trades were within the range of those of non-defendants. Defendants' expert Franklin Fisher, Professor of Economics at the Massachusetts Institute of Technology, compared trades to which defendants, and Mobil, were parties to trades where no defendant was a party and concluded that defendants did not engage in belowmarket trading. Only some of his conclusions will be summarized here. Like Darracott's second set of calculations, Fisher compared the transaction prices of defendants and nondefendants on a given day and delivery month. Between the period of November 26, 1985 and March 31, 1986, the period of the steepest price decline, defendants' average transaction prices averaged 1.2 cents below non-defendants' average transaction prices, a difference statistically indistinguishable from zero.[25] At the time, the average spread between the day's high and low prices for non-defendants was 35.7 cents per barrel. Of the 86 trading days in this period, there were twenty days in which defendants' average price was below the non-defendants' average price for all months traded for which comparisons were possible, and twenty-two days in which defendants' average prices were at or above non-defendants' prices for all months traded. After careful review of the calculations presented by the parties, this Court concludes that there are simply no material facts showing that defendants' trades were 1487 below the average prices of non-defendants' trades. However, Transnor explains the lack of statistical difference between defendants' and non-defendants' prices as demonstrating the devastating success of defendants' tax-spinning scheme, which so influenced the market that all trades were conducted at lower prices. Thus, Transnor essentially contends that "below-market prices" should be defined as prices below what the market prices would be in the absence of tax spinning. However, Transnor must still prove that defendants caused prices to fall; the mere fact that prices declined is obviously insufficient to support a conclusion that defendants caused the price decline. Transnor asserts that defendants' volume of low-priced taxspin transactions led other traders to assume there was a downward price trend and to decrease their prices accordingly, creating a downward price spiral. Transnor argues that other market participants, not knowing the reasons for the lower-priced transactions,[26] followed the lead of the major oil companies. As previously described, oil producers were either taxed at the price in an arms-length sale or, in the case of an interaffiliate transfer, upon the TRPthe market average for the 30 days prior thereto. Defendants could save taxes by tax-spinning only when the tax-spin price was less than the TRP. Transnor claims defendants colluded to set prices for their tax spins below the TRP in order to achieve tax savings. Exxon trader Jay Wald confirmed that tax spinning was utilized only when the spin price was lower than the expected TRP. Defendants answer that although the taxspin price was below the expected TRP when the market was in decline, it was not below the market price. Transnor responds that the tax-spin prices were not a response to a declining market, but its cause. This cause-effect conundrum is an issue for the jury to decide. While Transnor does not present evidence that defendants traded at low prices earlier in the day to set off a chain reaction of lower prices, this does not, as defendants contend, invalidate Transnor's claim that defendants undercut the market. This Court fails to discern why defendants could not, for example, trade at low prices in the middle of the day with the result that those low trades would affect prices later in the same day or over the course of several days. Defendants also argue that their reported trades did not influence the market. For example, with reference to the sixteen days on which defendants' low prices were below the low prices of non-defendants for all months traded, where comparisons are possible, prices declined on four of the days and increased on seven. On the day after each of the sixteen days, prices declined on seven days but not on the other nine. While these examples show no predictable corollation between defendants' low-priced trades and prices on the same or next day, this does not conclusively establish that other market participants were not affected by defendants' low-priced trades. While defendants emphatically deny that their tax spinning caused prices to decline, the view that tax spinning contributed to lower prices was expressed in an internal Exxon document which stated that tax spinning "directionally effects downward pressure on market (especially forward months)." However, the document also stated that "crude surplus judged to be by far the major factor influencing current market drop." A report on an Oxford North Sea Study sponsored by, among others, Shell and Exxon, also contained a hypothesis that a higher volume of tax spinning has a downward price bias. On September 8, 1986, Argus stated, "[t]he impetus to the fall in prices in the first quarter of this year was provided by vigorous tax spinning, as companies attempted to minimize their tax exposure." Transnor's 1488 Supp. Exh. 3. Transnor thus provides documentary evidence that tax spinning was believed to depress prices. Defendants argue that the Brent Oil price decline was instead caused by a worldwide oversupply of crude oil, attributable to the policies and actions of Saudi Arabia and OPEC. In 1983, OPEC agreed to oil production quotas and Saudi Arabia agreed to serve as the "swing producer" and adjust its production to absorb movements above and below the expected demand for OPEC's output. By September 1985, this agreement had failed and Saudi Arabia began to increase its output and to offer customers a "netback contract" whereby the crude oil price was determined by the spot price of the refined product less transport and processing cost and a profit margin for the buyer. In response, other OPEC countries also increased their output. At a meeting in December 1985, OPEC shifted its official policy from production quotas to increasing OPEC market share. Defendants argue that as oil from earlier netback sales arrived in markets, product prices decreased and led to reduced crude oil prices. The oversupply of OPEC crude also displaced Brent as a feedstock for European refineries, forcing Brent Oil producers to sell Brent Oil at lower prices in other markets.[27] A material issue of fact whether supply exceeded consumption, is created by the view of Transnor's expert Robinson that world consumption exceeded supply in the first quarter of 1986 when the consumption of non-industrialized countries is taken into account. Furthermore, Robinson contends that by early January 1986, the market had adjusted to the impact of changes in Saudi policy and the OPEC meeting and even if the $5.00 per barrel decline in oil prices between late November 1985 and January 9, 1986 were attributed to OPEC and the Saudis, the further $15.00 per barrel drop is attributable only to tax spinning.[28] In a paper given at an energy seminar in September 1986, President of former defendant SITCO Sylvan Robinson, stated that "netback deals ... have not created automatic downward pressures." Although his paper did not attribute the decline in Brent prices to tax spinning, it supports Transnor's theory to the extent that OPEC's actions did not cause the price declines in question. From the evidence provided, there are material questions of fact whether tax spinning, OPEC actions or some combination of the two caused prices to decline on the Brent market. Of course, plaintiff must be able to segregate damages caused by defendants' illegal behavior from damages caused by other factors. See e.g., Southern Pac. Com. Co. v. American Tel. & Tel. Co., 556 F.Supp. 825 (D.D.C.1982), aff'd, 740 F.2d 980, 740 F.2d 1011 (D.C.Cir. 1984), cert. denied, 470 U.S. 1005, 105 S.Ct. 1359, 84 L.Ed.2d 380 (1985). While defendants vigorously contend that Robinson's estimates as to the extent of the price decline caused by tax spinning is mere speculation, it is the jury's task, not the Court's, to weigh Robinson's theory that the market had already adjusted to OPEC's actions and that the price decline which forced Transnor's defaults was caused by tax spinning. These issues of material facts preclude summary judgment. 1489 APPLICABILITY OF THE CEA Next, defendants challenge the Court's subject matter jurisdiction over the commodities claims, contending that the Brent transactions were "cash forward contracts" specifically exempted from the scope of the CEA. While section 2(a)(1) of the CEA provides the Commission with regulatory jurisdiction over "contracts of sale of a commodity for future delivery,"[29] it further provides that the term future delivery "shall not include any sale of a cash commodity for deferred shipment or delivery."[30] This case presents the Court with a novel type of transaction, which appears to be a hybrid of a futures contract and a forward contract.[31] Examination of the distinctions between the two, their purposes and the caselaw construing them, leads the Court to conclude that Transnor's 15-day Brent transactions are futures contracts within the meaning of the Act, and are therefore subject to the Commission's regulatory powers. Sales of cash commodities for deferred shipment or delivery generally have been recognized to be transactions in physical commodities in which delivery in fact occurs but is delayed or deferred for purposes of convenience or necessity. See Commodity Futures Trading Comm. v. Co Petro Marketing Group, Inc., 680 F.2d 573 (9th Cir.1982); In re Stovall, [1977-1980 Transfer Binder] Comm.Fut.L.Rep. (CCH) ¶ 20,941, 23,777 (CFTC 1979); 52 Fed.Reg. 47022 ("Regulation of Hybrid and Related Instruments: Advance Notice of Proposed Rulemaking") (CFTC, December 11, 1987). Forward contracts have thus been defined as transactions in which the commercial parties intend and can accommodate physical transfer of the actual commodity. See Co Petro, 680 F.2d at 578-79; NRT Metals, Inc. v. Manhattan Metals (Non-Ferrous), Ltd., 576 F.Supp. 1046, 1050-51 (S.D.N.Y.1983). By contrast, futures contracts are undertaken primarily to assume or shift price risk without transferring the underlying commodity. As a result, futures contracts providing for delivery may be satisfied either by delivery or offset. See 54 Fed.Reg. 30694, 30695 ("Policy Statement Concerning Swap Transactions") (CFTC, July 21, 1989). Once distinguished by unique features, futures and forward contracts have begun to share certain characteristics due to increasingly complex and dynamic commercial realities. The predominant distinction between the two remains the intention of the parties and the overall effect of the transaction. The Commodity Futures Trading Commission ("CFTC") has recognized that commodity transactions between commercial participants in certain markets have evolved from privately negotiated contracts for deferred delivery of a physical commodity under which delivery generally occurs to transactions that have highly standardized terms and are frequently satisfied by payments based upon intervening market price changes. See Regulation of Hybrid and Related Instruments: Advance Notice of Proposed Rulemaking, supra at 47027. 15-day Brent is such a market. The 15-day Brent market involves sales or purchases of a cargo for delivery on an unspecified day of a given month. The actual delivery dates are determined at the seller's option, the buyer being entitled to clear notice of a three-day loading range. 15-day Brent sales are therefore highly specialized forward sales which start out 1490 "dry"[32] but ultimately become "wet,"[33] subject to liquidation of the contract. See The Legal Aspects of the 15-Day Brent Market, supra, at 110. Because the contracts do not provide for offset without the consent of the parties and because the sellers cannot predict in advance whether a particular buyer will insist on physical delivery, the market remains one based on physical trading. Id. at 116. Yet, because 15-day Brent oil can be sold without physical cover initially, participants can take long or short positions in the market for purposes of hedging and speculation, explaining the high ratio between barrels traded and barrels delivered. The three major motivations in Brent market activity, hedging, speculation and tax spinning, id.; R. Bacon, The Brent Market: An Analysis of Recent Developments, WPM8, Oxford Institute for Energy Studies (1986), have led at least one commentator to describe the market as an "unregulated and unguaranteed form of futures trading." The Legal Aspects of the 15-Day Brent Market, supra, at 117 (quoting International Petroleum Exchange of London: "Brent Crude Oil, Trading of Brent Crude. Notes for Discussion," February 26, 1986). The 15-day Brent Market has thus assumed aspects of the futures market while retaining elements of the forward contract. Forward Contracts The legislative history of the forward contract exclusion, fully set forth by the Ninth Circuit Court in Commodity Futures Trading Comm. v. Co Petro Marketing Group, Inc., 680 F.2d 573 (9th Cir. 1982), reveals its narrow purpose: to facilitate commodities transactions within the commercial supply chain. Policy Statement Concerning Swap Transactions, supra, at 30695. The exemption originated in the 1921 Act to meet the particular need of a farmer to sell part of next season's harvest at a set price to a grain elevator or miller. See S.Rep. No. 212, 67th Cong. 1st Sess. 1 (1921), H.R.Rep. No. 345, 67th Cong. 1st Sess. 7 (1921). The exemption was predicated upon the contemplation of actual, albeit future, delivery of the underlying commodity.[34]Co Petro, 680 F.2d at 578; NRT Metals, Inc. v. Manhattan Metals (Non-Ferrous), Ltd., 576 F.Supp. 1046, 1050 (S.D.N.Y.1983). The more recent 1974 version of the Act has left unchanged the exemption's limited scope, confirming the view that a forward contract is one in which the parties contemplate the future transfer of the commodity. See Co Petro, 680 F.2d at 578 (citing H.R.Rep. No. 975, 93rd Cong.2d Sess. 129-30 (1974)); NRT Metals, 576 F.Supp. at 1050.[35] "[N]othing in the legislative history surrounding ... [the exemption] suggest[s] that Congress intended to encompass agreements for the future delivery of commodities sold ... for ... speculative purposes." Co Petro, 680 F.2d at 579. The Co Petro Court summed up that, this exclusion is unavailable to contracts for sale for commodities which are sold 1491 merely for speculative purposes and which are not predicated upon the expectation that delivery of the actual commodity by the seller to the original contracting buyer will occur in the future. Id.; see NRT Metals, 576 F.Supp. at 1051. In determining whether a particular transaction is exempt from the Act's jurisdiction as a forward contract, the Courts and the CFTC have required that the contract's terms and the parties' practice under the contract make certain that both parties to the contract deal in and contemplate future delivery of the commodity. See Co Petro, 680 F.2d at 578; 50 Fed.Reg. 39656, 39657-58 ("Characteristics Distinguishing Cash and Forward Contracts and `Trade' Options") (CFTC, September 30, 1985). In Co Petro, the relevant agency agreements in gasoline obligated Co Petro to perform an offsetting service for its customers which would satisfy their contractual duties without delivery. Co Petro customers could also liquidate their positions in the face of adverse price fluctuations through a cash settlement by cancelling their contracts and paying only the liquidated damages provided for in the agreements. The Ninth Circuit Court likened Co Petro's customers to those customers who trade on organized futures markets because they could deal in commodities futures without the forced burden of actual delivery, Co Petro, 680 F.2d at 570, 580, and accordingly held that "the contracts here represent speculative ventures in commodities which were marketed to those for whom delivery was not an expectation." Id. at 581. In Commodity Futures Trading Comm. v. Comercial Petrolera International S.A., [1980-82 Transfer Binder] Comm.Fut. L.Rep. (CCH) ¶ 21,222 at 25,088 (S.D.N.Y. 1981), Judge Knapp similarly held that the relevant oil contracts were intended as "investment vehicles" in which the parties had never anticipated delivery. Id. at 25,098. The court's reasoning emphasized the language in the contracts that obligated the buyers to "purchase a specified amount of oil at a fixed price or to notify the dealer to sell the oil at the going price on or before a specified future date." Id. at 25,092-93. In Habas v. American Board of Trade, [1986-87 Transfer Binder] Comm.Fut.L. Rep. (CCH) ¶ 23,500 at 33,320 (CFTC 1987), the Judgment Officer, viewing the transactions as a whole to be futures contracts, noted that "the company's literature implies the opportunity to offset and the company permits entering into an opposite offsetting transaction prior to the maturity of the contract, both of which are characteristic of a futures contract." The Judgment Officer further considered the transactions' standardized terms as a means of facilitating offsetting transactions. Id. at 33,321. In determining whether the parties to copper contracts intended delivery of the commodity, Judge Carter in NRT Metals, Inc. v. Manhattan Metals (Non-Ferrous), Ltd., 576 F.Supp. 1046, 1050 (S.D.N.Y. 1983), focused on whether the parties maintained facilities to accomodate physical delivery of the 500 metric tons of copper and whether the parties simultaneously bought and sold copper futures contracts. The district court concluded that both factors contraindicated any intention of actual delivery. Id. at 1051. In the present case, defendants have acknowledged the tax advantages of trading in 15-day Brent and do not dispute that during the relevant period, 15-day Brent oil contracts were routinely settled by means other than delivery, most typically through the clearing techniques of offset and bookout. However, defendants maintain that because the contracts lack a contractual right to avoid delivery, they are predicated upon actual delivery of the oil and thus constitute forward contracts within the Act's definition. The Court disagrees. The high levels of speculation and performance without delivery, as well as the relatively standardized contracts, distinguish the 15-day Brent transactions from the forward contracts contemplated by the drafters of the Act. The Court acknowledges that 15-day Brent contracts may represent binding commitments to buy or sell physical oil. The real question, however, is whether the 1492 transactions are more like bargains for the purchase and sale of crude oil than speculative transactions tacitly expected to end by means other than delivery. The Ninth Circuit Court's "forced burden of delivery" language in Co Petro does not mandate forward contract classification of those contracts imposing a forced burden which is not expected to be enforced. The Ninth Circuit Court held only that the absence of a forced burden of delivery is indicative of the speculative nature of futures contracts. That court did not have before it contracts imposing a forced burden of delivery, and thus did not rule on the effect of the presence of such a burden. Accordingly, this Court need not disagree with or deviate from Co Petro, but merely considers as relevant whether the contracts provide for an opportunity to avoid delivery. This is consistent with the reasoning of the Habas court, which speaks in terms of "opportunity to offset." This Court concludes that even where there is no "right" of offset, the "opportunity" to offset and a tacit expectation and common practice of offsetting suffices to deem the transaction a futures contract. Defendants admit that the incentive to spin and respin was to ensure that taxes were paid on the basis of a more favorable market price. Defendants' 328 tax spin transactions reveal that the underlying purpose was not to transfer physical supplies of oil. Defendants' expert, Donald Miller, states in his Affidavit that, Many participants in the Brent Market have no intention of taking delivery of oil either to store or refine it and others who sell Brent do not produce it. Miller Aff. ¶ 16. Indeed, "only a minority of transactions in the Brent market result in delivery." Securities and Investments Board, Consultative Document on the Future Regulation of the Oil Markets at 2 (February 1988). The customary use of offsetting and booking out strongly suggests that physical delivery was not contemplated by the parties. Moreover, the high degree of standardization of terms such as quantity, grade, delivery terms, currency of payment and unit of measure, which facilitate offset, bookout and other clearing techniques available on the Brent market, further evidence the investment purpose of Brent trading. The 15-day Brent market does not remotely resemble the commercial trading originally excepted from the Act. While this Court recognizes that commercial transactions have increased in complexity since the predecessor to the CEA was enacted, the interests of Brent participants, which include investment and brokerage houses, do not parallel those of the farmer who sold grain or the elevator operator who bought it for deferred delivery, so that each could benefit from a guaranteed price.[36] While there is no contractual entitlement to satisfy Brent obligations by means other than delivery, the likelihood of avoiding delivery has enabled participants to develop what is essentially a "paper" market for speculative or hedging purposes rather than one for physical transfer. The Court therefore concludes that the 15-day Brent transactions do not constitute forward contracts excepted from the CEA. Futures Contracts After deciding that the relevant contracts were not forward contracts, the Co Petro court considered whether the contracts constituted futures contracts. In making that determination, the court found that, no bright line definition or list of characterizing elements is determinative. The transaction must be viewed as a whole with a critical eye toward its underlying purpose. Co Petro, 680 F.2d at 581. The Ninth Circuit Court then held that, due to their speculative nature, the contracts at issue were "contracts for sale of a commodity for future delivery." In a recent policy 1493 statement, the Commodity Futures Trading Commission affirmed and amplified Co Petro's holding by declaring, In determining whether a transaction constitutes a futures contract, the Commission and the courts have assessed the transaction "as a whole with a critical eye toward its underlying purpose" [citing Co Petro]. Such an assessment entails a review of the "overall effect" of the transaction as well as a determination as to "what the parties intended." Although there is no definitive list of the elements of futures contracts, the CFTC and the courts recognize certain elements as common to such contracts. Futures contracts are contracts for the purchase or sale of a commodity for delivery in the future at a price that is established when the contract is initiated, with both parties to the transaction obligated to fulfill the contract at the specified price. In addition, futures contracts are undertaken principally to assume or shift price risk without transferring the underlying commodity. As a result, futures contracts providing for delivery may be satisfied either by delivery or offset. The Commission has explained that this does not mean that all commodity futures contracts must have these elements [citation omitted]. To hold otherwise would permit ready evasion of the CEA. Policy Statement Concerning Swap Transactions, supra, at 30694-95.[37] Therefore, there is no exhaustive check-list by which a contract can be measured. Addressing the essentials of the futures contract, the Court is convinced that the 15-day Brent transactions satisfy the criteria. Transnor's contracts for 15-day Brent, a commodity within the CEA's meaning, were dated December 1985 and called for March 1986 delivery, indicating that sales of 15-day Brent could occur several months ahead of the specified loading month. Transnor's Brent contracts established a price for a standardized volume when the contract was initiated in December 1985, despite the ± 5% volume tolerance, and both parties to the contracts were obligated to fulfill the contract at the specified price. Most importantly, the Brent contracts were undertaken mainly to assume or shift price risk without transferring the underlying commodity. Defendants acknowledge that the volume of Brent contract trading greatly exceeded the amount of physical oil available to satisfy such contracts. The volume of contracts traded and the high standardization of the contracts demonstrate the essential investment character of the 15-day Brent market. "With an eye toward [their] underlying purpose," the Court concludes that Transnor's 15-day Brent transactions constitute futures contracts. SUFFICIENCY OF TRANSNOR'S CLAIM UNDER THE CEA Defendants next argue that Transnor cannot state a claim under the anti-manipulation provisions of the CEA §§ 9(b) and 4(c) which require proof of each of the following four elements: (1) manipulative conduct; (2) a specific intent to create an artificial price which is not determined by the forces of supply and demand; (3) a causal relationship between the manipulative conduct and a change in market prices; and (4) an artificial price. Cargill, Inc. v. Hardin, 452 F.2d 1154, 1162-63 (8th Cir.1971), cert. denied, 406 U.S. 932, 92 S.Ct. 1770, 32 L.Ed.2d 135 (1972); In re Cox, [1986-87 Transfer Binder] Comm.Fut. L.Rep. (CCH) ¶ 23,786, at 34,061 (CFTC July 15, 1987); T. Russo, Regulation of the Commodity Futures and Options Markets, § 12.11 at 12-18 (1983). Because Transnor has raised issues of material fact, not properly decided on this motion, summary judgment is denied. Manipulative Conduct Transnor's central allegation concerning manipulative conduct is that defendants' 1494 tax-spinning transactions constituted prohibited "wash sales" entered into for the purpose of artificially depressing the price of oil. Wash trading, not defined in the Act itself, is the practice of entering into or purporting to enter into transactions for the purpose of giving the appearance that trades are being or have been made but without having actually taken a market position. See 80 Cong.Rec. 7858 (May 25, 1936); accord Admin.D. 200 (May 25, 1966). The existence of a wash result the purchase and sale of the same futures contract at a similar price is an insufficient showing to establish a wash sale in violation of § 4c(a) of the CEA. See In re Collins, ("Collins III") [1986-87 Transfer Binder] Comm.Fut.L.Rep. (CCH) ¶ 23,401 at 33,077 (CFTC Nov. 26, 1986). Prohibited wash sales are proved only if it is demonstrated that the trader "knowingly participated in transactions initiated with intent to avoid a bona fide market position." Id.; Stoller v. Commodity Futures Trading Comm., 834 F.2d 262, 265 (2d Cir.1987); In re Goldwurm, 7 Agric.Dec. 265, 274 (1948) ("The essential and identifying characteristic of a `wash sale' seems to be the intent not to make a genuine, bona fide trading transaction ..."). In Stoller, the Second Circuit Court acknowledged that prior rulings on wash sales had concerned transactions that were "virtually riskfree, often prearranged, and intentionally designed to mislead, or to serve other illicit purposes." Stoller, 834 F.2d at 266 (citations omitted). Whether a transaction constitutes a wash sale "inevitably turn[s] on the particular facts and circumstances of individual cases and not on any absolute formula." Collins III, at 33,077. Defendants argue that because the 15-day Brent Market involves binding commitments to take or make delivery of physical oil, the fact that a tax spin leaves a company in a net unchanged position as to price spreads does not mean that it has avoided a bona fide market position. Defendants claim that, to the contrary, a company completing a spin has assumed the risks of non-performance by its seller and buyer as well as the credit risks of both counterparties, unlike an offsetting transaction on a exchange-traded futures market where participants look directly to the central clearing house for performance of contractual obligations. Defendants claim that these non-market risks distinguish this case from In re Goldwurm, 7 Agric.Dec. 265 (1948), and In re Siegel Trading Co., [1977-80 Transfer Binder] Comm.Fut.L.Rep. (CCH) ¶ 20,452 at 21,827 (CFTC July 26, 1977), which ruled that trades intended as tax avoidance mechanisms are "artificial as far as futures trading is concerned.... [and] fictitious from the standpoint of reality and substance." In re Siegel, at 21,844. Transnor maintains that it is market risk, not credit or performance risk, that makes commodities transactions "bona fide market positions," citing In re Gimbel, [1988] Comm.Fut.L.Rep. (CCH) ¶ 24,213; 1988 CFTC LEXIS 204 (CFTC April 14, 1988), aff'd, 872 F.2d 196 (7th Cir.1989), and Campbell v. Shearson American Express, Inc., [1985-86 Transfer Binder] Fed.Sec.L. Rep. (CCH) ¶ 92,303 at 92,047, 92,050 n. 5 (E.D.Mich. Aug. 9, 1985), aff'd, 829 F.2d 38 (6th Cir.1987).[38] While In re Gimbel, 1988 CFTC LEXIS 204, at 4, n. 7, states that "[t]o be ficticious within the meaning of Section 4c(a)(A), ... it is sufficient if the transaction is structured to negate price competition or market risk," the Commission did not consider credit or performance risk because the clearing house guaranteed the contractual obligations. Neither the Commission nor any court has considered risks other than price competition or market risk in determining whether a party "negated risk" because hybrid transactions such as those at bar have not until now been deemed futures contracts. Nonetheless, the purpose of the prohibition, to prevent cheating and fraudulent practices "employed to give a false appearance of trading and to cause prices to be registered which are not true prices," 80 Cong.Rec. 7858 (May 25, 1936 1495 (comments of bill's sponsor, Senator Pope), is served by prohibiting transactions that negate market risk.[39] As stated by the Commission in In re Collins, ("Collins II") [1986-87 Transfer Binder] Comm.Fut.L. Rep. (CCH) ¶ 22,982 at 31,896 (CFTC April 4, 1986), "the common denominator of the specific abuses in Section 4c(a) [including] wash sales ... and the central characteristic of the general category of fictitious sales, is the use of trading techniques that give the appearance of submitting trades to the open market while negating the risk or price competition incident to such a market." Transnor asserts that defendants' 16 circular transactions in which the identical amount, grade and delivery date of the oil was traded among the defendants and Mobil on the same day at the same price, as well as defendants' 328 buy/sell transactions with one other party, at identical prices during an erratic Brent Market period, negated market risk. Because defendants do not dispute that these transactions left the companies "in a net unchanged position as to price spreads," this Court concludes that defendants' tax spins feigned a non-existent market position and potentially misled other Brent Market traders, despite any nonmarket risks incurred. To hold otherwise would defeat the purpose of the CEA's clear prohibition.[40] Specific Intent Defendants next claim that Transnor cannot establish the required intention to induce an artificial price because the transactions were entered into for legitimate commercial or investment purposes, citing In re Indiana Farm Bureau Coop. Ass'n, [1982-84 Transfer Binder] Comm.Fut.L. Rep. (CCH) ¶ 21,796 at 27,279 (CFTC Dec. 17, 1982). See Russo, supra at § 12.19. Defendants maintain that tax-spinning transactions were routine commercial transactions entered into for permissible purposes, including tax certainty. Transnor first refutes the relevance of any legitimate purpose to a determination of manipulation and alternatively asserts that defendants' activities, constituting tax fraud, further evidence wash sales.[41] Where a trader acts with a legitimate investment or commercial purpose, no manipulative intent can be found. Stoller, 834 F.2d at 266 (citing with approval the distinction between legitimate market purpose and manipulative intent drawn in In re Collins, ("Collins I") [1977-80 Transfer Binder] Comm.Fut.L.Rep. (CCH) ¶ 20,908 at 23,687 (CFTC Aug. 16, 1979); Russo, supra § 12.19 at 12-34. The "legitimate market purpose" test for conduct alleged to constitute wash sales is intended to avoid charging a knowing violation and causing undue prejudice to a litigant who may have relied on an agency's prior interpretation or policy. See Stoller, at 265-266. A second purpose of the test recognizes that a trader is entitled to act in his best interest so long as he does not act with manipulative intent. See In re Indiana Bureau Coop. Ass'n., [1982-84 1496 Transfer Binder] Comm.Fut.L.Rep. (CCH) ¶ 21,767 at 27,279 (CFTC Dec. 17, 1982).[42] In Stoller, the court reversed the Commission's ruling of liability because, in its view, the public was not apprised that the Commission considered the practice of "roll forward" trading to be encompassed within the wash-sale prohibition of the Act. The Second Circuit Court accepted defendant's claim that the transactions at issue were "designed to fulfill a purpose generally considered legitimate in the industry" and declined to hold the public accountable under the Commission's construction of the statute without appropriate notice. Stoller, 834 F.2d at 266-67 (emphasis added).[43] In the case at bar, the alleged legitimate market purpose is tax certainty. However, it is obvious that the incentive behind tax spinning was the achievement not merely of a more certain tax but of a lower tax. Defendants claim that OTO's subsequent sanction of the transactions as legitimate distinguish their activities from the proscribed tax structurings in Goldwurm and In re Siegel. Transnor maintains that the Goldwurm and In re Siegel rulings fairly apprised defendants that achieving tax advantages by engaging in offsetting transactions at artificial prices is within the prohibition of "wash sales" and, moreover, that at the time of the tax spins, defendants did not act to "fulfill a purpose generally considered legitimate in the industry," making irrelevant that the U.K. subsequently condoned their conduct.[44] Clearly, Goldwurm and In re Siegel gave public notice that illicit tax maneuverings are prohibited under the Act. The more difficult question is whether the U.K.'s subsequent approval of the transactions retroactively renders the purpose of the transactions legitimate. This Court believes that it does not. More appropriate to a determination of legitimate market purpose than subsequently adjudicated legality is whether the transaction was "designed to fulfill a purpose generally considered legitimate in the industry." Stoller, 834 F.2d at 266. Although defendants offer testimony that U.K. tax law as it existed prior to March 1987 permitted integrated oil companies to sell and buy back future cargoes to establish the lowest price for tax purposes, Transnor has refuted that "portfolio pricing" in particular was generally considered legitimate in the industry, citing the deposition testimony of Exxon chief-of-trading Morey Lorenz, Exxon trader Diane Sharp, Conoco trader Player Edwards, Morgan Stanley trader Nancy Kropp, and defendants' expert witness Donald Miller. Transnor also offers the testimony of its U.K. tax expert James Bentley that defendants trading constituted attempted tax fraud. Because there remains a question of material fact as to whether defendants' transacted with a legitimate market purpose in mind, summary judgment is denied. Causal Relationship Defendants assert that the tax spinning transactions were not responsible for the decline in oil prices thereby defeating Transnor's manipulation claim for lack of causation. Defendants submit testimony that the drop in oil prices resulted from the actions of OPEC, particularly its decision to compete for market share. However, where "multiple causes of an artificial *1497 price ... can be sorted out, and [defendants] are a `proximate' cause of the artificial price, a charge of manipulation can be sustained." In re Cox, at 34,066. As discussed earlier, Transnor presents a question of fact as to causation. Artificial Price Finally, defendants contend that their conduct did not result in the creation of an artificial price, a requisite to Transnor's CEA manipulation claim. Transnor contends otherwise. This issue of material fact precludes summary judgment. CONCLUSION For the reasons outlined above, defendants' motion for summary judgment is denied. SO ORDERED. NOTES [1] SITCO, a party to one of the contracts, obtained a judgment against Transnor for its default. Transnor settled with Nissho Iwai, a party to the second contract. [2] Transnor settled and dismissed with prejudice its claims against Shell International Trading Company ("SITCO") and Shell U.K. Limited ("SUKO"), as well as against BP North American Petroleum and BP Oil International Ltd. (collectively "BP"). Transnor also dismissed with prejudice its claims against the Royal Dutch Petroleum Company, the "Shell" Transport and Trading Company, p.l.c., and the Shell Oil Company. [3] This Court carefully attempts to distinguish those cases dealing with standing from those interpreting subject matter jurisdiction. Defendants clearly contest plaintiff's standing to assert its antitrust and commodity claims. [4] Some courts and commentators state that the Supreme Court's decisions in Matsushita, Celotex, and Anderson v. Liberty Lobby, Inc, 477 U.S. 242, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986) represent a "new era" more favorable to summary judgment motions. See e.g., Childress, A New Era for Summary Judgments: Recent Shifts at the Supreme Court, 116 F.R.D. 183 (1987). For example, the Matsushita court stated that plaintiffs "must show that the inference of conspiracy is reasonable in light of the competing inferences [of lawful behavior]." Matsushita, 475 U.S. at 588, 106 S.Ct. at 1356. This language suggests that courts must more critically weigh the inferences which the parties urge. However, the Second Circuit Court recently emphasized in the context of an antitrust summary judgment motion that, "while some assessment of the evidence is necessary to determine rationally what inferences are reasonable and therefore permissible, it is evident that the question of what weight should be assigned to competing permissible inferences remains within the province of the fact-finder at a trial." Apex Oil Co. v. Dimauro, 822 F.2d 246, 253 (2d Cir.), cert. denied, 484 U.S. 977, 108 S.Ct. 489, 98 L.Ed.2d 487 (1987). [5] "Bookout" contracts are separate contracts entered into by the parties to the original contracts whereby they settle their respective obligations under the original contracts by paying each other the difference between the contract price and an agreed reference price. [6] In 1987, the U.K. government changed the tax law to limit a producer's ability to select lower-priced sales from a large portfolio, thus reducing the frequency of tax spinning. [7] In Matsushita, the Supreme Court imposed a higher burden on the party opposing summary judgment when the scheme alleged is economically irrational. The Matsushita Court found that the predatory pricing scheme allegedpricing sufficiently below the market level to drive out competitors in order to gain monopoly power and then recoup any resulting losses through monopoly profitswas economically irrational because it led to definite short-term loss and uncertain long-term gain. The instant case involves possible short-term gain and, defendants contend, almost certain long-term loss. [8] Earnings from upstream operations, which include the exploration and production of crude oil, rise and fall directly with crude oil prices. Earnings from downstream operations, which include the refining and marketing of refined products, derive from the difference between the cost of purchasing and refining the crude oil and the market price of the refined products. [9] Conoco claims that when its crude production and refinery runs are compared, it was a net seller of crude oil between January and June of 1986. [10] Defendants contend that Colin Robinson, Transnor's expert witness, wrongly assumed that defendant companies bought lower-priced North Sea crude oil for their refineries in the open market during 1986. Exxon claims that from late 1985 through early 1986, the use of North Sea Crude Oil in Exxon refineries dramatically decreased, and the use of Saudi Arabian oil purchased on a netback basis increased. Moreover, Conoco did not use Brent Oil in its U.K. refinery. [11] Transnor's expert Colin Robinson, Professor of Economics at the University of Surrey, England, opined that defendants' overall after-tax profits would be increased by a drop in crude-oil prices, based on his analysis of the effect of declining oil prices on a "typical" and "sophisticated" integrated producer/refiner of North Sea crude oil, employing data gathered from the trade journal Petroleum Intelligence Weekly. Robinson acknowledges, however, that his data do not reflect "the crude prices paid, the refinery netbacks achieved [nor] ... the tax position of any one company." Robinson Decl. ¶¶ 49-50. Defendants object to Robinson's results as imprecise and lacking probative value because he did not examine data produced in discovery relating to defendants' actual experiences. [12] Transnor argues that Exxon's and Conoco's figures are misleading because they refer to "earnings" or "after tax operating income" rather than "profits." However, these terms are interchangeable, each referring to the excess, if any, of revenues over expenses. Transnor further faults Exxon's figures because they combine natural gas and petroleum earnings; Exxon attempts to justify this by asserting that the bulk of its natural gas production is dissolved in crude oil and it is unable to separate out the two for reporting purposes. [13] Richard J. Kruizenga, Vice President-Corporate Planning for Exxon states that "[c]ompetitive pressures are strong in the downstream and as a result product prices adjust to reflect changes in the price of crude oil." Kruizenga Aff. ¶ 5. A Conoco document prepared in connection with Conoco's 1986 proposed plan stated "the effect of lower crude oil prices is dependent upon how quickly product margins reach a new equilibrium and whether the crude oil price decline precedes that of products or vice versa." [14] Exxon states that between 1976 and 1988, its upstream earnings averaged $3.4 billion and downstream earnings averaged $1.1 billion. During that period, whenever lower crude oil prices depressed upstream earnings, increases in downstream earnings were never sufficient to compensate for the upstream decreases. In further support of their claims of implausibility, defendants point to their large reserves of oil and natural gas and argue that they could not benefit from a decline in its price. [15] Transnor claims that a high degree of market power enabled integrated companies to keep refinery netbacks high while crude prices were falling. Robinson identifies eight firms, including four other than defendants and their alleged co-conspirator Mobil, as constituting an oligopoly in Western Europe because they accounted for 65% of total product sales in Western Europe in 1984 and 82% of refinery capacity in the British market in 1986. When defendants applied the Herfindahl-Hirshman Index ("HHI"), a measure of market concentration, to firms with Western European refineries, an index of 1028 resulted. Since an HHI range between 1000-1800 represents a moderately concentrated market, see U.S. Department of Justice Merger Guidelines at § 3.1, 4 Trade Reg.Rep. (CCH) ¶ 13,103 at 20, 560 (1984), it is unlikely, although possible, that Western European refineries operated as an oligopoly. Robinson concedes that defendants lacked "enough market power to be able to keep refinery netbacks constant whilst crude [oil] prices were being cut." Robinson Decl. ¶ 44. [16] Robinson also concedes that such gains could be recognized only if these companies could delay the decline of product prices in the other markets as well. Transnor has provided no evidence that defendants possessed sufficient market power to delay the decline of product prices worldwide. [17] Although the document does not state whether this $3.00 per barrel decrease refers to oil prices generally or only Brent prices, it appears from subsequent documents that this figure refers to Brent prices. [18] Defendants argue that there was little "commonality of conduct" among them as each producer adopted different rules for tax spinning and engaged in spinning for different motives. Nonetheless, defendants' conduct shared important common features in that each defendant entered into significant numbers of matched buy/sell transactions for tax purposes. [19] Transnor's own experts admit that it was not necessary for defendants to collude in order to benefit individually from tax spinning. Spuller Dep. at 290, 308, 337; Robinson Dep. at 174. [20] Except for one four-way transaction, these transactions involved three parties and the original selling party ended up with exactly what it had sold. [21] Another Exxon document relied on by Transnor discusses the tax spinning strategies of Shell and BP, making statements such as "believe BP is selling equity; buying cheapest alternative." [22] Section 4 of the Clayton Act, 15 U.S.C. § 15 (1976) provides that, "any person who shall be injured in his business or property by reason of anything forbidden in the antitrust laws may sue therefor ... and shall recover threefold the damages by him sustained." [23] Defendants maintain that "Transnor's case depends on its ability to prove as fact that defendants traded at below-market." Defendants' Reply Brief at 2. Since a violation of section 1 of the Sherman Act occurs when there is even an unconsummated agreement in restraint of trade, see American Tobacco Co. v. United States, 328 U.S. 781, 789, 66 S.Ct. 1125, 1129, 90 L.Ed. 1575 (1946); United States v. Socony-Vacuum Oil Co., 310 U.S. 150, 225 n. 59, 60 S.Ct. 811, 845 n. 59, 84 L.Ed. 1129 (1940), the Court will address the issue of causation in those terms. [24] The parties have agreed to enter into a stipulation as to the terms of Exxon's, Conoco's, SUKO's and SITCO's contracts for the purchase and sale of crude oil, and have agreed, where supported by documentary evidence, on the contract's date of entry, price, grade, and month of delivery. No agreement has yet been reached with respect to BP contracts. The prices, dates and delivery months of non-defendant transactions were derived from Petroleum Argus Ltd. ("Argus"), a London-based spot market crude oil reporting service which gathers its information directly from market participants, which the parties have agreed to stipulate are accurate. [25] Transnor does not contradict this conclusion. When Fisher performed the same calculations using the same time period as Darracott's calculations, defendants were found to have traded an average of 0.96 cents above non-defendants. [26] Transnor provides evidence that other market participants were unaware of the extent of tax spinning. For example, Exxon trader Sharp testified that non-participants in the tax spin did not know whether a given transaction was a tax spin or not. This was confirmed by Morgan Stanley trader Nancy Kropp, who stated that she could not tell what percentage of Exxon's or Conoco's trades were tax spins. [27] Defendants note that market analysts and commentators in late 1985 and early 1986 overwhelmingly attributed the price decline to OPEC. One piece of evidence which defendants provide is a January 1986 telex written by E. Roy Moor, a principal of Transnor, in which he stated that Transnor had "become increasingly concerned about the price distortions created in the crude oil markets by the impact of refined product netback related crude oil and in particular the effects of increased Saudi Arabia crude oil production/netback sales." Moor Exh. 81. [28] In Robinson's deposition, taken before he submitted these calculations, he testified that he was "not sure" how to make these calculations and had seen no literature which explained the principles to apply. Robinson Dep. 258-59. Although Robinson claims that the market had fully adjusted to OPEC policy by January 1986, he also attributes a $2.00 per barrel price drop to reaction to a March 1986 OPEC meeting. Thus, it appears that, contrary to his earlier statements, Robinson claims that tax spinning accounted for a $13.00, not a $15.00, drop in price per barrel. [29] "Contracts of sale" is defined as "sales, agreements of sale, and agreements to sell." 7 U.S.C. § 2 (1976). "Commodity" is broadly defined to include, among others, "all other goods and articles ..., and all services, rights, and interests in which contracts for future delivery presently or in the future dealt in." Id. Defendants do not contest that the Brent transactions were contracts of sale of commodities as defined by section 2(a)(1) of the Act. [30] Cash commodity contracts for deferred shipment or delivery are commonly known as "cash forward contracts," whereas contracts of sale of a commodity for future delivery are called "futures contracts." See H.R.Rep. No. 93-975, 93rd Cong., 2d Sess. 129-30 (1974). [31] The Commission intends to adopt regulations concerning the scope of the forward contract's jurisdictional exclusion in a future release. 54 Fed.Reg. 1128, 1130 n. 14 ("Proposed Rules Concerning Regulation of Hybrid Instruments") (CFTC January 11, 1989). [32] A "dry" or "paper" deal refers to the purchase or sale of a claim on a cargo of Brent in some future month. [33] A "wet" deal refers to a physical transaction in which a specific cargo actually changes hands. [34] During the hearings prior to enactment of the CEA's predecessor, the Future Trading Act, which sought to bring federal control to Futures trading, witnesses expressed concern that there were a variety of legitimate off-exchange commercial transactions, such as cash grain contracts between farmers and grain elevator operators for the future delivery of grain, in which delivery of the commodity was delayed. Then-Secretary of Agriculture Henry Wallace urged preservation of the right to buy or sell next season's crop which had not yet been planted or harvested but which would exist at the delayed delivery date. 1921 Senate Hearings at 462. Senator Capper, the sponsor of the Senate version of the bill, also stated that the bill dealt only with transactions in which the transfer of actual grain was not contemplated and that the entire business of sales or purchases of actual grain, either for present or future delivery, is expressly excluded from coverage. 61 Cong. Rec. 4762, 67th Cong., 1st Sess. (Aug. 9, 1921); Co Petro, 680 F.2d at 578. [35] A House Report on the recent amendments focused on the "inherent value" of the commodity to the buyer because of the nature of his business in reselling, distributing, manufacturing or otherwise dealing with the underlying commodity. See Co Petro, 680 F.2d at 578. [36] Nor will finding the 15-day Brent transactions to constitute futures contracts effectively eliminate the CEA's forward contract exception. The intentions of the parties still govern and the opportunity to satisfy a contract through means other than delivery is alone insufficient to categorize the nature of the transaction. [37] The Commission outlines additional elements characteristic of exchange-traded futures contracts, the "presence or absence [of which] is not dispositive of whether a transaction is a futures contract." Policy Statement Concerning Swap Transactions, supra, at 30694-95. Accordingly, defendants' claim that the absence of certain of these elements dooms Transnor's off-exchange contracts is spurious at best. [38] Campbell's footnote does nothing more than explain the distinction between two risks in a completely unrelated 10(b)(5) securities claim. [39] Moreover, section 4c(a)(A)'s broad prohibition of any transaction "... of the character of, or commonly known to the trade as, a `wash sale,'" suggests that negating market risk sufficiently eliminates any significant risk to fall within the prohibition. [40] Transnor also claims that defendants paired buy/sell transactions were prearranged. While prearrangement is not a necessary element for finding a wash sale violation, it is one method used to avoid a bona fide market position. See Collins II, at 31,897. Because it is improbable that a pattern of matched orders or wash results represents the true interplay of market forces, the existence of such a pattern may "raise an inference that the results were intentionally achieved by means of prearrangement." Id. Defendants' matched transactions during the relevant period raise an inference of prearrangement, negating price competition, and would be grounds for denial of summary judgment even if the transactions were not deemed wash sales. Transnor also argues that defendants engaged in manipulative conduct by trading at artificially low prices. This contention, analyzed earlier in connection with Transnor's antitrust claims, need not be further discussed here. [41] This Court rejects Transnor's proposition that Stoller recognizes that an illicit purpose indicates the existence of a wash sale. A clear reading reveals that the Second Circuit Court merely stated that wash sales had in the past been found in transactions motivated by illicit purposes, not that illegal motives mandate a finding of wash sales. [42] The Court rejects Transnor's argument that In re Gimbel, ¶ 24,313 at 35,003 n. 5, mandates abandonment of the legitimate market purpose test. That the Commission "remains of the view" that commercial motivations underlying transactions are not relevant, neither binds nor persuades this Court in light of the Second Circuit Court's ruling in Stoller, 834 F.2d at 266, which is also cited in the footnote. Stoller recognized that the statutory language permits the Commission to define its meaning although it may hold the public accountable only upon proper notification. [43] Stoller overrules a prior CFTC ruling, Collins II, at 31,896, that there is "no basis in the statutory language of Section 4c(a) or the legislative history to imply an exception so that otherwise prohibited trading techniques, such as wash sales, would become acceptable when used for an alleged `legitimate market purpose.'" See In re Gimbel, 1988 CFTC LEXIS 204, at 3, n. 6. [44] Transnor's argument that OTO would never have accepted defendants' transactions had it been apprised of the true facts is beyond the scope of this inquiry.	{ "pile_set_name": "FreeLaw" }
UNPUBLISHED UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT No. 18-7026 RODNEY A. KOON, Plaintiff - Appellant, v. STATE OF NORTH CAROLINA; BRIAN K. WELLS, Defendants - Appellees. Appeal from the United States District Court for the Eastern District of North Carolina, at Raleigh. Louise W. Flanagan, District Judge. (5:16-ct-03301-FL) Submitted: December 18, 2018 Decided: December 21, 2018 Before AGEE, THACKER, and HARRIS, Circuit Judges. Dismissed and remanded by unpublished per curiam opinion. Rodney A. Koon, Appellant Pro Se. Unpublished opinions are not binding precedent in this circuit. PER CURIAM: Rodney A. Koon seeks to appeal the district court’s order dismissing without prejudice his civil complaint in part as moot and in part for failure to state a claim, and a subsequent order denying his Fed. R. Civ. P. 59(e) motion to alter or amend judgment. This court may exercise jurisdiction only over final orders, 28 U.S.C. § 1291 (2012), and certain interlocutory and collateral orders, 28 U.S.C. § 1292 (2012); Fed. R. Civ. P. 54(b); Cohen v. Beneficial Indus. Loan Corp., 337 U.S. 541, 545-47 (1949). Because Koon may remedy the identified deficiencies in his initial complaint through the filing of an amended complaint, we conclude that the dismissal of his complaint without prejudice is neither a final nor an appealable interlocutory or collateral order. Goode v. Cent. Va. Legal Aid Soc’y, Inc., 807 F.3d 619, 623 (4th Cir. 2015); Domino Sugar Corp. v. Sugar Workers Local Union 392, 10 F.3d 1064, 1066-67 (4th Cir. 1993). Accordingly, we dismiss the appeal for lack of jurisdiction and remand the case to the district court with instructions to allow Koon to file an amended complaint. * We dispense with oral argument because the facts and legal contentions are adequately presented in the materials before this court and argument would not aid the decisional process. DISMISSED AND REMANDED * Although the district court denied Koon’s motion to amend on the ground that his proposed amendment would be futile, the court left open the possibility that Koon could allege sufficient facts in support of his request for compensatory damages. 2	{ "pile_set_name": "FreeLaw" }
630 F.2d 328 UNITED STATES of America, Plaintiff-Appellee,v.Alberto ESPINOSA-CERPA, Defendant-Appellant. No. 79-5564. United States Court of Appeals,Fifth Circuit. Nov. 12, 1980. Ronald A. Dion, Miami, Fla. (Court-appointed), for defendant-appellant. W. Christian Hoyer, Asst. U. S. Atty., Tampa, Fla., for the United States. Appeal from the United States District Court for the Middle District of Florida. Before KRAVITCH, HENDERSON and REAVLEY, Circuit Judges. REAVLEY, Circuit Judge: 1 Appellant Alberto Espinosa-Cerpa was arrested along with his fellow crewmen on the shrimp boat, MISS PHYLLIS, when Coast Guard officers boarded that vessel in the Gulf of Mexico and found her to be carrying over 35,000 pounds of marijuana and to be bound for Key West, Florida. Espinosa-Cerpa subsequently was convicted in a jury trial of conspiracy to import marijuana into the United States, with intent to distribute same, in violation of 21 U.S.C. §§ 846, 963. He now attacks that conviction on three grounds, arguing: (1) that the prior acquittal in a separate trial of all his named alleged coconspirators (his three fellow crew members) should, as a matter of law, have precluded his conviction on the conspiracy charge; (2) that the trial court erred in refusing to suppress all evidence obtained from the Coast Guard's stop, boarding, and search of the MISS PHYLLIS, since that entire procedure had been accomplished without a warrant or even a reasonable suspicion that the MISS PHYLLIS or anyone on board was transgressing any United States law; and (3) that he was denied a fair trial and that his Miranda rights were infringed by a prosecution witness' comment on his post-arrest silence. We affirm the conviction. I. Background 2 On the morning of May 13, 1979 a helicopter launched from the United States Coast Guard cutter DEPENDABLE, on patrol in the Gulf of Mexico, sighted the MISS PHYLLIS along with some other vessels in the Yucatan Straits about 150 miles outside United States territorial waters. For reasons not made clear below, the DEPENDABLE then began covertly following the MISS PHYLLIS, tracking her by radar.1 At about 5:30 p. m. the DEPENDABLE intercepted the MISS PHYLLIS for a "standard boarding" under the authority of 14 U.S.C. § 89(a) "to ensure (the vessel's) compliance with all applicable U.S. laws." R.Supp. vol., pp. 10, 11, 28. Just prior to the boarding the captain of the DEPENDABLE ascertained by radio communication with the MISS PHYLLIS that she was of United States registry and that her next port of call was to be Key West, Florida. 3 While conducting a walking tour of the deck of the MISS PHYLLIS, the ensign leading the boarding party detected the odor of marijuana. Upon further investigation, the ensign discovered 839 bales of the substance, weighing 35,371 pounds and having a street value of about 14 million dollars. R. vol. 3, pp. 190, 192. The Coast Guard officers then arrested appellant, along with his cohorts, and seized and escorted the MISS PHYLLIS to port at St. Petersburg, Florida. 4 The four men captured on board the MISS PHYLLIS were all indicted for allegedly conspiring together and with other persons unknown to import and distribute the cargo of marijuana in the United States. All four originally were scheduled to be tried together. When however-as both parties have euphemistically labelled it-Espinosa-Cerpa "voluntarily absented himself" just prior to trial, the prosecution of the three remaining defendants proceeded. All three were acquitted of the conspiracy charge. After appellant was apprehended and returned to custody, he was tried individually and found guilty of conspiracy by a jury, despite the prior acquittal of his named alleged coconspirators. 5 II. Effect of Prior Acquittal of Coconspirators 6 Appellant's foremost contention is that his conspiracy conviction should have been foreclosed as a matter of law after all of his named alleged coconspirators were acquitted. This contention may rest on either of two theories. 7 First, under the construct of nonmutual collateral estoppel, see Blonder-Tongue Laboratories, Inc. v. University of Illinois Foundation, 402 U.S. 313, 91 S.Ct. 1434, 28 L.Ed.2d 788 (1971), it might be argued that the prior acquittal of all three other crewmen alleged to have taken part in the conspiracy should bar the government's subsequent relitigation in appellant's trial of the issue of their complicity in that conspiracy. This elimination of all those with whom appellant might have conspired2 would, of course, have precluded his conviction for conspiracy. See Iannelli v. United States, 420 U.S. 770, 777, 95 S.Ct. 1284, 1289, 43 L.Ed.2d 616 (1975) (essence of conspiracy is agreement between two or more individuals). 8 In Standefer v. United States, --- U.S. ----, ---- - ----, 100 S.Ct. 1999, 2006-09, 64 L.Ed.2d 689 (1980), however, the Supreme Court very recently rejected the applicability of nonmutual collateral estoppel to criminal cases, specifically holding that the prior acquittal of one party could not be invoked to bar the government's subsequent relitigation of the fact of that party's criminal conduct as an element in the prosecution of a second defendant. See also, United States v. Musgrave, 483 F.2d 327, 332 (5th Cir.), cert. denied, 414 U.S. 1023, 94 S.Ct. 447, 38 L.Ed.2d 315 (1973). Consequently, the avenue of collateral estoppel is not open to appellant. 9 The second theory, upon which defendant places his principal reliance, is that his prosecution and conviction for conspiracy should have been precluded by an extrapolation from the traditional tenet that a single conspirator may not be convicted in the same proceeding or prosecution in which all of his alleged fellows are acquitted.3 Herman v. United States, 289 F.2d 362, 368 (5th Cir.), cert. denied, 368 U.S. 897, 82 S.Ct. 174, 7 L.Ed.2d 93 (1961) (applying traditional rule). Accord, e.g., United States v. Shuford, 454 F.2d 772, 779 (4th Cir. 1971); Romontio v. United States, 400 F.2d 618 (10th Cir. 1968), cert. dismissed, 402 U.S. 903, 91 S.Ct. 1384, 28 L.Ed.2d 644 (1971). See generally, Annot., 91 A.L.R.2d 700, 703-08 (1963) (and cases cited therein). The apparent basis for the traditional rule is the notion that the acquittal of all but one potential conspirator negates the possibility of an agreement between the sole remaining defendant and one of those acquitted of the conspiracy and thereby denies, by definition, the existence of any conspiracy at all. See, e.g., United States v. Goodwin, 492 F.2d 1141, 1144 (5th Cir. 1974); Farnsworth v. Zerbst, 98 F.2d 541, 544 (5th Cir. 1938), cert. denied, 307 U.S. 642, 59 S.Ct. 1046, 83 L.Ed. 1523 (1939) ("such judgments prove that there was in fact no criminal agreement"); United States v. Austin-Bagley Corp., 31 F.2d 229, 233 (2d Cir.) cert. denied, 279 U.S. 863, 49 S.Ct. 479, 73 L.Ed. 1002 (1929) (per L. Hand, J.; "verdict must not itself deny the existence of the essential facts" of conspiracy); Feder v. United States, 257 F. 694, 697 (2d Cir. 1919) ("reason for the rule is ... the indivisibility of the crime"). Appellant argues, therefore, that it is a natural extrapolation from this principle that a lone alleged conspirator should also not be susceptible to conviction in a separate prosecution following the acquittal of all of his alleged coconspirators. United States v. Bruno, 333 F.Supp. 570, 577-78 & n.10 (E.D.Pa.1971) (adopting extension urged here by appellant). 10 Aside from any potential flaws in such an extrapolation itself, however, we have some difficulty with the notion, recited above, upon which the basic rule is premised and, therefore, with the soundness even of that traditional rule. The notion that the acquittal of one's alleged coconspirators concludes the fact of their noncomplicity misapprehends the true nature of an acquittal in the scheme of trial by jury in the American criminal justice system. It has long been recognized that criminal juries in the United States are free to render "not guilty" verdicts resulting from compromise, confusion, mistake, leniency or other legally and logically irrelevant factors. Dunn v. United States, 284 U.S. 390, 393-94, 52 S.Ct. 189, 190-191, 76 L.Ed. 356 (1932). Consequently, an acquittal is not to be taken as the equivalent of a finding of the fact of innocence; nor does it necessarily even reflect a failure of proof on the part of the prosecution.4 Thus, contrary to the notion underlying the rule in question, a jury's acquittal of some coconspirators should not be taken to negate the fact of their possible criminal complicity with any remaining alleged coconspirators. 11 Moreover, the premise and resultant rule are antithetical to the general understanding, deriving from the principle of jury prerogative recognized in Dunn, that the apparent logical inconsistency of jury verdicts, even among multiple defendants tried together on essentially the same evidence and charges, provides no basis for attacking an otherwise valid guilty verdict adequately supported by the evidence; rather, each such verdict or conviction is to be reviewed wholly independently of the others. See, e. g., United States v. Dotterweich, 320 U.S. 277, 279, 64 S.Ct. 134, 135, 88 L.Ed. 48 (1943); Odom v. United States, 377 F.2d 853, 857 (5th Cir.1967), cert. dismissed, 400 U.S. 23, 91 S.Ct. 112, 27 L.Ed.2d 122 (1970). Accord, e. g., United States v. Dunn, 564 F.2d 348, 360 & n.24 (9th Cir.1977) (noting joint conspiracy trials as exception to general rule); United States v. Martorano, 557 F.2d 1, 8-9 (1st Cir.1977), cert. denied, 435 U.S. 922, 98 S.Ct. 1484, 55 L.Ed.2d 515 (1978); Annot., 22 A.L.R.3d 717 (1968) (and cases cited therein). "While symmetry of results may be intellectually satisfying, it is not required." Standefer v. United States, --- U.S. at ----, 100 S.Ct. at 2009. Thus, there is serious question as to the logical foundation for the continued application of the basic rule upon which appellant relies and which he seeks here to extend.5 12 While we are not at liberty in this case to rule upon the continued vitality of that tenet in its original form, we certainly are not disposed to extend its scope to overturn an otherwise valid conviction rendered in a proceeding subsequent to that in which appellant's alleged conspirators were acquitted. In addition to the criticisms that may be levelled at the rule itself, such an extension would also ignore the fact that different evidence might have been presented in the two proceedings6 or that the two juries might quite reasonably have taken different views of the same evidence. Finally, the rule that appellant seeks to invoke would be blatantly inconsistent with the Supreme Court's decision in Standefer. Whether or not labelled as nonmutual collateral estoppel, it would operate in an almost identical manner, barring relitigation of the fact of the other crewmen's having engaged in a conspiracy with appellant solely on the basis of their prior acquittal of that charge. Consequently, we hold that the prior acquittal of appellant's named alleged coconspirators did not preclude his later conviction for having conspired with them. III. Boarding of the MISS PHYLLIS 13 Appellant argues that the Coast Guard practice of arbitrary, warrantless boardings and inspections of American flag vessels on the high seas under § 89(a),7 such as the boarding of the MISS PHYLLIS, contravenes the recent Fourth Amendment pronouncements of the Supreme Court in Delaware v. Prouse, 440 U.S. 648, 99 S.Ct. 1391, 59 L.Ed.2d 660 (1979) and Marshall v. Barlow's, Inc., 436 U.S. 307, 98 S.Ct. 1816, 56 L.Ed.2d 305 (1978).8 In Prouse and Barlow's, respectively, the Court held that the Fourth Amendment proscribed random, roving stops of automobiles for license and registration checks and warrantless, administrative safety inspections of business premises. 14 This court made clear its rejection of appellant's basic position, however, in its recent en banc opinion in United States v. Williams, 617 F.2d 1063, 1075, 1077-78 (5th Cir.1980). There Judge Rubin in his special concurrence eloquently pleaded the case (urged here by appellant) for application of the land-based principles embodied in Prouse, Barlow's, and other cases of that vein, to Coast Guard stops and boardings under § 89(a). Id. at 1096-98. The majority of the court declined to follow his exhortations, however, and instead reaffirmed the view articulated in United States v. Warren, 578 F.2d 1058, 1064-65 (5th Cir.1978) (en banc) modified en banc on other grounds, 612 F.2d 887 (5th Cir.1980), that § 89(a), consistently with the Fourth Amendment, "gives the Coast Guard plenary power to stop and board any American flag vessel anywhere on the high seas (outside the twelve-mile limit) in the complete absence of any suspicion of criminal activity." 617 F.2d at 1075, 1077 (though the facts of that case dealt with the boarding of a foreign flag vessel); United States v. Robbins, 623 F.2d 418, 420 (5th Cir.1980). See also United States v. Freeman, 579 F.2d 942, 946-47 (5th Cir.1978) (articulating bases for not applying land-based search and seizure principles to stops at sea). 15 Although this authority most commonly is invoked to justify stops ostensibly made for the purpose of safety and documentation inspections, e. g., United States v. Robbins, 623 F.2d at 420, this court has also held that the authority permissibly extends to boardings "to look for obvious customs and narcotics violations." United States v. Conroy, 589 F.2d 1258, 1265 (5th Cir.), cert. denied, 444 U.S. 831, 100 S.Ct. 60, 62 L.Ed.2d 40 (1979), quoting United States v. Warren, 578 F.2d at 1065. Thus, the "standard boarding" of the MISS PHYLLIS "to ensure compliance with all applicable U.S. laws" was consistent with the law as interpreted by this court. 16 Once on board, the odor of marijuana, detected by the ensign in the boat's pilothouse while he was being conducted around the vessel by its master, R. vol. 3, p. 174, justified the further investigation that revealed the marijuana in the ship's hold and stacked in the crew's quarters. United States v. Williams, 617 F.2d at 1086-87. See e. g., United States v. Hicks, 624 F.2d 32, 33-34 & n.2 (5th Cir.1980); United States v. Mann, 615 F.2d 668, 670 (5th Cir.1980). Consequently, no Fourth Amendment violation occurred. IV. Comment on Defendant's Silence 17 Finally, Espinosa-Cerpa contends that his Miranda rights and his right to a fair trial were breached by the testimony of the arresting officer, given during the prosecution's case-in-chief, in which he twice commented on the MISS PHYLLIS crew's silence following their being arrested and given Miranda warnings. The offensive exchange between court, counsel and witness is reproduced in the margin.9 18 Appellant is correct in asserting that the witness' comments were in derogation of appellant's Miranda and Fourteenth Amendment due process rights. Miranda v. Arizona, 384 U.S. 436, 468 n.37, 86 S.Ct. 1602, 1624 n.37, 16 L.Ed.2d 694 (1966) (prosecution may not use defendant's silence at trial); United States v. Edwards, 576 F.2d 1152 (5th Cir.1978); Chapman v. United States, 547 F.2d 1240, 1242-43 (5th Cir.), cert. denied, 431 U.S. 908, 97 S.Ct. 1705, 52 L.Ed.2d 393 (1977) (comment is violation of due process). See Doyle v. Ohio, 426 U.S. 610, 96 S.Ct. 2240, 49 L.Ed.2d 91 (1976) (reference to defendant's silence in cross-examination for impeachment purposes violates due process). That the prosecution may not have intended that the witness make such a comment neither absolves the sin nor eliminates any potential prejudice. United States v. Staller, 616 F.2d 1284, 1291 (5th Cir.1980); United States v. Matos, 444 F.2d 1071, 1072 (7th Cir.1971). 19 Nonetheless, we are convinced that the error in this case was harmless beyond a reasonable doubt. Chapman v. California, 386 U.S. 18, 24, 87 S.Ct. 824, 828, 17 L.Ed.2d 705 (1967). The potential for real prejudice from the comments was virtually nil. The witness' statements were isolated and unsolicited, never "highlighted" by repeated questioning or subsequent reference by the prosecutor. See United States v. Davis, 546 F.2d 583, 594-95 (5th Cir.), cert. denied, 431 U.S. 906, 97 S.Ct. 1701, 52 L.Ed.2d 391 (1977). The comments in no way undermined any exculpatory defense. Cf. United States v. Harp, 536 F.2d 601, 603 (5th Cir.1976) (court condemned comments on silence that "struck at the jugular" of the accused's defense). Finally, in light of the court's curative instruction and the otherwise overwhelming evidence of guilt deriving from the mere circumstances of appellant's arrest, the conclusion that the error was harmless is virtually inescapable. United States v. Staller, 616 F.2d at 1292; Chapman v. United States, 547 F.2d at 1247-50. 20 For the reasons stated above we affirm appellant's conviction. 21 AFFIRMED. 22 KRAVITCH, Circuit Judge. 23 I concur in the result. 1 At the hearing on the motion to suppress evidence garnered from the stop and search of the MISS PHYLLIS, the ensign who led the boarding party testified that the tracking and boarding had been ordered by radio by a Coast Guard Operations Commander in Miami. R.Supp. vol., pp. 8, 22. No further mention was made of such an order in the trial testimony of the DEPENDABLE's captain or of that ensign. In any event, no explanation was given for the decision to board the MISS PHYLLIS, whatever its source 2 The government contends that even if the complicity of the other crew members was not subject to relitigation at appellant's trial, his conviction need not fall. They point out that even where named coconspirators are acquitted, "a person can be convicted of conspiring with persons where names are unknown as long as the indictment asserts that such other persons exist and the evidence supports their existence (and complicity)." United States v. Klein, 560 F.2d 1236, 1242 (5th Cir. 1977), cert. denied, 434 U.S. 1073, 98 S.Ct. 1259, 55 L.Ed.2d 777 (1978), quoting United States v. Lance, 536 F.2d 1065, 1068 (5th Cir. 1976). See, e.g., United States v. Allen, 613 F.2d 1248, 1253 (3d Cir. 1980). Here, the government argues, Espinosa-Cerpa's indictment did charge the existence of unknown coconspirators, and their actual participation may be inferred from the fact that other individuals must have been implicated to accomplish the financing, unloading and planned distribution of the 35,000 pounds of marijuana on board the MISS PHYLLIS While the government correctly states the law, we do not believe that the evidence supports its application to this case. There was absolutely no direct evidence at trial of the participation of anyone other than those on board the MISS PHYLLIS. The government relies solely on the inference outlined above. In United States v. Pena, 527 F.2d 1356, 1365 (5th Cir.), cert. denied, 426 U.S. 949, 96 S.Ct. 3168, 49 L.Ed.2d 1185 (1976), this court previously rejected a very similar inference, in essentially the same situation, as inadequate to support the conviction of a single named conspirator. Id. at 1365 (rejecting inference of conspiracy with unidentified supplier of narcotics). Accordingly, we shall analyze this case as if the named alleged conspirators were the only ones with whom appellant might have conspired. 3 The rule has also spawned the corollary that where two or more defendants are convicted of conspiracy and, for whatever reason, all but one have their convictions reversed on appeal or are granted a new trial, the conviction of the remaining conspirator also cannot stand. See, e.g., Hartzel v. United States, 322 U.S. 680, 682 n.3, 64 S.Ct. 1233, 1234 n.3, 88 L.Ed. 1534 (1944); United States v. Peterson, 488 F.2d 645, 651 (5th Cir.), cert. denied, 419 U.S. 828, 95 S.Ct. 49, 42 L.Ed.2d 53 (1974); Feder v. United States, 257 F. 694, 696-97 (2d Cir. 1919) 4 Recognition of this principle was fundamental to the Supreme Court's decision in Standefer not to extend nonmutual collateral estoppel effects from the acquittal of an alleged principal in crime to the subsequent trial of his alleged aider and abettor. --- U.S. at ----, 100 S.Ct. at 2007. Of course, regardless of the true basis of a particular "not guilty" verdict, relitigation against the same defendant of facts involved in another charge of which he has previously been acquitted may be precluded by principles of double jeopardy. Ashe v. Swenson, 397 U.S. 436, 90 S.Ct. 1189, 25 L.Ed.2d 469 (1970). Those considerations are not germane here, however. Standefer v. United States, --- U.S. at ----, 100 S.Ct. at 2007 n.16 5 The rule undoubtedly was originally simply transplanted from the English system in which it had been applied since the time of Henry IV. See Feder v. United States, 257 F. at 696-97 (reliance on English caselaw); 2 Wharton's Criminal Law § 1676 and nn. 12 & 13 (12th ed. 1932). A brief examination of the origin and evolution of the rule in that system provides perhaps the most damning indictment of its continued use in our system The history and development of the doctrine that the conviction of a single conspirator may not stand if all his alleged coconspirators are acquitted was reviewed at some length in the relatively recent decision of the House of Lords in R. v. Shannon, (1974) 2 All E.R. 1009 (H.L.). The Shannon opinions disclosed that this rule requiring the quashing of such convictions apparently developed at a time, long since past, when review of such proceedings (under writs of error) was restricted to a formal "record" of the indictment, plea, verdict and the like, to determine if there was such an apparent inconsistency or "repugnancy" on the face of the record as required reversal. Id. at 1029-30, 1037, 1043, 1048. See also, 1 W. Holdsworth, A History of English Law 212-17 (3d ed. 1922). Most significantly, English appellate tribunals had no capacity to review the evidence to determine whether it was sufficient to support the conviction of the lone conspirator. (1974) 2 All E. R. at 1029-30, 1037, 1043, 1048. Thus, the rule emerged merely as a product of this review procedure based on the theory that such an inconsistency more often than not signalled that an error had been made by the jury in the conviction. Id. at 1043. The original basis and rationale for the rule largely vanished, of course, with the onset of pervasive evidentiary review just after the beginning of the twentieth century. See Criminal Appeal Act of 1907, 7 Edw. 7, c. 23, §§ 3, 20(1), (4). Nonetheless, the rule itself has stubbornly persisted in various forms even to the present. Compare R. v. Shannon (1974) 2 All E. R. at 1034-35 (opinion of L. Morris) with R. v. Shannon (1974) 2 All E. R. at 1040-41, 1047 (opinions of V. Dilhorne and L. Simon). This exposition in R. v. Shannon of the historical basis for the rule makes abundantly clear its inappropriateness to a modern American criminal justice system in which all verdicts obviously are, and always have been, subject to independent review for evidentiary support and where apparently inconsistent verdicts are almost uniformly tolerated whether explainable by variances in proof or merely as jury license. Indeed, even in England (where inconsistencies in verdicts are not so liberally received, see Archbold's Pleading, Evidence and Practice in Criminal Cases PP 621-22 (40th ed. 1979)) the continued vitality of the rule has now come into serious question. See, e. g., Criminal Law Act of 1977, c. 45, § 5.-(8), (9) (abrogating the doctrine as a per se rule); Law Comm'n, Report on Conspiracy and Criminal Law Reform 24-27 (1976) (and sources cited therein). 6 The government suggests that in this case there was some discrepancy in the testimony of prosecution witnesses at the trial of the other crewmen that was clarified in the Espinosa-Cerpa trial. Gov't br. at 9-10 7 14 U.S.C. § 89(a) provides: (a) The Coast Guard may make inquiries, examinations, inspections, searches, seizures, and arrests upon the high seas and waters over which the United States has jurisdiction, for the prevention, detection, and suppression of violations of laws of the United States. For such purposes, commissioned, warrant, and petty officers may at any time go on board of any vessel subject to the jurisdiction, or to the operation of any law, of the United States, address inquiries to those on board, examine the ship's documents and papers, and examine, inspect, and search the vessel and use all necessary force to compel compliance. When from such inquiries, examination, inspection, or search it appears that a breach of the laws of the United States rendering a person liable to arrest is being, or has been committed, by any person, such person shall be arrested or, if escaping to shore, shall be immediately pursued and arrested on shore, or other lawful and appropriate action shall be taken; or, if it shall appear that a breach of the laws of the United States has been committed so as to render such vessel, or the merchandise, or any part thereof, on board of, or brought into the United States by, such vessel, liable to forfeiture, or so as to render such vessel liable to a fine or penalty and if necessary to secure such fine or penalty, such vessel or such merchandise, or both, shall be seized. 8 Appellant is not alone in his criticism. See, e. g., United States v. Piner, 608 F.2d 358, 361 (9th Cir.1979) (requiring reasonable suspicion of illegality or fixed administrative standard removing discretion from officers in the field for boardings accomplished pursuant to § 89(a)); 3 W. LaFave, Search & Seizure § 10.8(f) at 35-44 (Supp.1980); Note, High on the Seas: Drug Smuggling, The Fourth Amendment, and Warrantless Searches at Sea, 93 Harv.L.Rev. 725, 738-51 (1980) 9 Q: Now, go ahead and tell us what you did A: * * * I broke out a standard form we have, which is a list of rights to give someone their rights when you suspect that they have committed a crime. I-"These are your Rights. Go ahead and read them. If you have any questions, ask questions." I questioned the fact of waiving their Rights, decided they did not want to waive their Rights, did not want to make any statement at that point, signed these forms- MR. DION: We object at this point, based on- THE COURT: Beg your pardon? MR. DION: We object, based on Fifth Amendment grounds. If we could approach the bench? THE COURT: No, I'm going to overrule the objection. He can tell about giving them their Rights and indicate that they-and let me say, ladies and gentlemen, you are instructed that the purpose of giving the Rights-reading the Rights to a Defendant, that is what are known as Miranda Rights, Rights that they don't-not required to make any statement and that any statement they might make would be used against them; that under the Fifth Amendment to the Constitution, any person has a Right not to make a statement. And the fact they don't make a statement cannot be used (against) them. All right. Go ahead. MR. DION: For the record, we would also ask for a mistrial. THE COURT: Yes, Sir, I will deny that. Q: Now, after you placed the men under arrest, without regard to what anybody said-in other words, don't tell us what other people said. Tell us what you did. Did you inspect the boat any further to see what was in- A: Yes, we did. Picking up at the point of advising them their Rights and them deciding not to make a statement- Q: Well- R. vol. 3, pp. 173-78.	{ "pile_set_name": "FreeLaw" }
IN THE COURT OF CRIMINAL APPEALS OF TEXAS NO. WR-26,945-02 IN RE CHARLES LEE STRICKLAND, Relator ON APPLICATION FOR A WRIT OF MANDAMUS CAUSE NOS. 89-CR-1284A, 920-CR-201B, 90-CR-202B AND 90-CR-204B IN THE 138TH DISTRICT COURT FROM CAMERON COUNTY Per curiam. ORDER Relator has filed a motion for leave to file a writ of mandamus pursuant to the original jurisdiction of this Court. In it, he contends that he filed four applications for writs of habeas corpus in the 138th District Court of Cameron County, that more than 35 days have elapsed, and that the applications have not yet been forwarded to this Court. In these circumstances, additional facts are needed. Respondent, the District Clerk of Cameron County, is ordered to file a response, which may be made by submitting the records on such habeas corpus applications, submitting copies of timely filed orders which designate issues to 2 be investigated (see McCree v. Hampton, 824 S.W.2d 578, 579 (Tex. Crim. App. 1992)), or stating that Relator has not filed applications for writs of habeas corpus in Cameron County. Should the response include orders designating issues, proof of the date the district attorney’s office was served with the habeas applications shall also be submitted with the response. This application for leave to file a writ of mandamus shall be held in abeyance until Respondent has submitted the appropriate response. Such response shall be submitted within 30 days of the date of this order. Filed: October 21, 2015 Do not publish	{ "pile_set_name": "FreeLaw" }
MEMORANDUM DECISION Pursuant to Ind. Appellate Rule 65(D), this Memorandum Decision shall not be FILED regarded as precedent or cited before any Jul 12 2018, 10:03 am court except for the purpose of establishing CLERK Indiana Supreme Court the defense of res judicata, collateral Court of Appeals and Tax Court estoppel, or the law of the case. APPELLANT PRO SE ATTORNEYS FOR APPELLEE Sonny Davis Curtis T. Hill, Jr. Westville, Indiana Attorney General of Indiana Monika Prekopa Talbot Supervising Deputy Attorney General Indianapolis, Indiana IN THE COURT OF APPEALS OF INDIANA Sonny Davis, July 12, 2018 Appellant-Petitioner. Court of Appeals Case No. 49A05-1710-PC-2328 v. Appeal from the Marion Superior Court State of Indiana, The Honorable Kurt Eisgruber, Appellee-Plaintiff. Judge Trial Court Cause No. 49G01-0208-PC-211427 Brown, Judge. Court of Appeals of Indiana \| Memorandum Decision 49A05-1710-PC-2328 \| July 12, 2018 Page 1 of 21 [1] Sonny Davis (“Davis”) appeals the denial of his petition for post-conviction relief. He raises a number of issues which we consolidate and restate as: I. Whether he was denied effective assistance of trial and appellate counsel; and II. Whether he is entitled to a new trial due to newly discovered evidence. We affirm. Facts and Procedural History [2] Davis dated Christina Light for a year and a half. Davis v. State, No. 49A05- 0303-CR-140, slip op. at 2 (Ind. Ct. App. December 18, 2003), trans. denied. On August 8, 2002, Light went to stay with her aunt after having a problem with Davis. Id. Davis told Light’s aunt Light was a “lying bitch” and he would come over and “beat the heck” out of her. Id. Light’s aunt became afraid of Davis and asked Light to leave her home. Id. Light went to the house of her cousin Amy Heady (“Amy”) and asked Amy’s boyfriend, Kevin Milliner, to say that Light was not at home if Davis called. Id. Davis called several times, and both Amy and Milliner told Davis that Light was not home. Id. Sometime later, Davis went to Amy’s residence, walked in despite being told Light was not present, found Light hiding under a bed, pulled her out by her hair, hit her on her back with a drill, held her down, repeatedly hit her on the head with a hammer, kept asking Light for the keys to the truck they co-owned, found the keys in Light’s pocket, continued hitting Light, and eventually left. Id. at 2-3. Court of Appeals of Indiana \| Memorandum Decision 49A05-1710-PC-2328 \| July 12, 2018 Page 2 of 21 [3] The State charged Davis with attempted murder, burglary as a class A felony, robbery as a class A felony, aggravated battery as a class B felony, criminal confinement as a class B felony, two counts of battery as class C felonies, intimidation as a class D felony, criminal recklessness as a class D felony, domestic battery as a class A misdemeanor, battery as a class A misdemeanor, and interference with reporting a crime as a class A misdemeanor. Id. at 3. The State later alleged Davis was an habitual offender. Id. [4] At trial, the prosecutor asked Indianapolis Police Officer Joseph Wells to describe his conversation with Light on her porch, and Davis’s trial counsel objected on the basis of hearsay. The court overruled the objection and noted Davis’s continuing objection. Officer Wells testified that Light told him that her ex-boyfriend came over to the residence and that Davis kicked in the door of the residence, entered the residence with a man named Antwan who held a gun on everybody, and started beating her with his fist. [5] The prosecutor asked Paramedic Lisa Warren on direct examination what Light had said to her about how she had been injured, and Davis’s counsel objected on the basis of hearsay. The court overruled the objection to the extent it related to the identity of Light’s attacker. Warren testified that Light “did not say a name – she just said ‘he did it,’” and when asked who “he” was in relation to Light, Warren answered: “A boyfriend.” Trial Transcript Volume I at 62. Court of Appeals of Indiana \| Memorandum Decision 49A05-1710-PC-2328 \| July 12, 2018 Page 3 of 21 [6] A hearing was held outside the presence of the jury during which the court asked Light if she understood that Davis would like to call her as a witness in his case-in-chief, and Light indicated she understood. The court invited Davis’s counsel to ask Light questions, and Light’s counsel stated that Light had Fifth Amendment rights that supersede her ability to answer any questions from Davis’s counsel or from the State. The court stated: “Why don’t we let her hear what the questions are and then you can advise her. What would your questions be, [Davis’s counsel].” Id. at 187. In response to questions by Davis’s counsel, Light stated that “[s]ome guy” with the street name of Beedaw struck her with a hammer, that she did not know his name, and that she told the police that Davis injured her because she wanted to see him locked up because she “found him cheating on [her] with somebody else.” Id. at 188. Light’s counsel stated that he was advising her not to answer these questions because it would lead to charges being filed. The court asked Light if she understood that the State had filed charges for obstruction of justice and that the State intended to prosecute her on those charges based upon the testimony she gives, and Light answered affirmatively. Light indicated that she did not want to testify and that she was going to exercise her Fifth Amendment privilege. Upon further questioning by Davis’s counsel, Light stated that she recognized a letter that she wrote to the prosecutor that was marked for identification purposes as Defendant’s Exhibit A. Light’s counsel stated that Light was not competent, that Light had already invoked her rights under the Fifth Amendment twice since they began, and, after further discussion, indicated that Light was exercising her Fifth Amendment privilege. Court of Appeals of Indiana \| Memorandum Decision 49A05-1710-PC-2328 \| July 12, 2018 Page 4 of 21 [7] After the State rested, Davis’s counsel moved for a directed verdict on some of the counts, and the court granted the motion with respect to Count XII and denied the request with respect to the other counts. Davis’s counsel called Light, and the court questioned her outside the presence of the jury and in the presence of Light’s attorney. The court found Light to be a competent witness. Upon questioning by the court, Light indicated she understood that if she testified, there was the possibility she could give statements that would incriminate her in pending criminal cases, that she wanted to testify, and that she acknowledged her attorney’s advice was to exercise her Fifth Amendment privilege. The prosecutor explained that Light potentially faced charges of obstruction of justice as a class D felony, assisting a criminal as a class C felony for attempting to procure statements from Amy and Milliner, and perjury as a class D felony for each falsehood for “potential penalties up to maybe fifteen years.” Trial Transcript Volume II at 344. The prosecutor also stated that Light should be advised that she was involved in Child Protective Services matters with her children and that the prosecutor did not know what effect, if any, any convictions would have on those hearings. When asked by the court if she wanted to testify, Light answered: “Yeah – I mean – all I want to say is he didn’t do it.” Id. The court stated that Light wished to testify. The prosecutor asked if Light understood that she would be answering the prosecutor’s questions as well, and, when asked by the court, Light indicated that she understood. Light then stated “can I plead the Fifth . . . .” Id. at 345. When asked by the court if she wanted to “plead the Fifth,” Light answered affirmatively. Id. After further discussion, the court asked Light if she wished Court of Appeals of Indiana \| Memorandum Decision 49A05-1710-PC-2328 \| July 12, 2018 Page 5 of 21 to exercise her Fifth Amendment Privilege, and Light answered “Fifth Amendment.” Id. at 347. [8] Davis’s counsel then indicated that he would like to offer into evidence Defendant’s Exhibit A, which was the statement Light had previously testified was a true and accurate copy of the statement she submitted to the State. After some discussion, the court did not admit Defendant’s Exhibit A. [9] Davis testified that he had been dating Light for about a year and a half and was involved romantically with her on August 8, 2002. He testified that he had a date with Toya on August 8, 2002, he could not remember Toya’s last name, and Light came over at dinner time and became upset due to Toya’s presence. He stated that Light paged him, they talked on the phone, Light asked him for money, he felt there was something wrong from the tone of her voice, he went to check on her, he discovered blood all over the house, Light told him to leave, and he left and went to 1814 Rural. On cross-examination, Davis indicated that State’s Exhibit 6 reflected that thirty calls were placed from his residence to Barbara Heady’s residence and close to ten calls were placed to Amy’s residence, that he stated earlier that he was at his residence with Toya that day, and that Toya was not present at the trial. [10] The court admitted a Petition to File Belated Notice of Alibi Defense filed by Davis on October 4, 2002, as State’s Exhibit 33. The petition alleged that Davis was at the Rural Inn, located at 2725 E. Michigan Street in Indianapolis, at 11:40 p.m. on August 8, 2002, the date and time that the offense occurred. Court of Appeals of Indiana \| Memorandum Decision 49A05-1710-PC-2328 \| July 12, 2018 Page 6 of 21 Davis had also filed a list of witnesses including Shanisha Crenshaw, Johnny Davis, and Melissa LNV. On cross-examination, Davis indicated that he had just testified that he was not at the Rural Inn and that none of the witnesses listed in his petition to file a belated notice of alibi were present at the trial. [11] The jury was unable to reach a verdict on the charge of attempted murder and acquitted Davis of battery. Davis, slip op. at 3. He was convicted of the nine other counts. Id. The trial court sentenced him to fifty years for burglary, twenty years for aggravated battery, and a thirty-year habitual offender enhancement on the aggravated battery conviction. Id. [12] On direct appeal, Davis challenged his burglary conviction and argued that the trial court’s instruction regarding the element of “breaking” violated his due process rights under the Fourteenth Amendment to the United States Constitution and Article 1, Section 19 of the Indiana Constitution. Id. at 4. He also argued that the instruction contained a mandatory presumption. Id. at 6. We agreed that a portion of the instruction defining “breaking” was incorrect, held that the erroneous language was harmless, and affirmed. Id. at 5-6. [13] On March 26, 2015, Davis filed an amended petition for post-conviction relief alleging that his trial and appellate counsel were ineffective and new evidence existed which would likely result in a different result on retrial. On May 12, 2015, the court held an evidentiary hearing at which Davis was represented by counsel. James Denning testified that he witnessed “Johnny striking the lady in the head with the hammer” on August 8, 2002, and that the man’s full name Court of Appeals of Indiana \| Memorandum Decision 49A05-1710-PC-2328 \| July 12, 2018 Page 7 of 21 was “Johnny House.” Post-Conviction Transcript Volume II at 18. When shown Petitioner’s Exhibit A, a booking information sheet listing an individual’s “Name” as “DAVIS JOHNNY,” “Person Name” as “JOHNNY HOUSE,” and “Aliases” as “DAVIS, JOHNNY,” Petitioner’s Exhibit A, Denning stated that person was Johnny House. He testified that he and Johnny were hanging out that day when “Tanisha” picked up him and Johnny and took them to a house which Johnny entered and stayed for five or six minutes. Post-Conviction Transcript Volume II at 21. He testified that a woman ran out of the house screaming, “Help, help. They were fighting. Help break up the fight.” Id. at 23. According to Denning’s testimony, he then saw Johnny striking a lady in the head numerous times with a hammer, Johnny ran out screaming, “I got the keys, I got the keys, let’s go,” he and Johnny entered a black Chevy S-10, and Johnny dropped him off at his home. Id. at 24. Denning testified that he had not seen Johnny since then until he was walking through a unit of the Wabash Valley Jail in 2012 when he saw Johnny and said, “Johnny, what’s up,” and the man responded, “I’m not Johnny.” Id. at 25. Denning identified Davis as the person he ran into in prison. He acknowledged that he was currently serving a sentence for attempted robbery. [14] Amy testified that she had previously testified that Davis had beaten Light. She indicated that the photograph of the person in Petitioner’s Exhibit A looked like Davis. Davis’s counsel asked Amy if it was possible that the person she believed back in August 2002 to be Davis could have been Johnny House, the prosecutor objected, and the court sustained the objection. Milliner stated that Court of Appeals of Indiana \| Memorandum Decision 49A05-1710-PC-2328 \| July 12, 2018 Page 8 of 21 he testified at trial that he witnessed Davis and that he saw Davis for two or three minutes. He also testified that the person in Petitioner’s Exhibit A looked like Davis. [15] Tanisha Whiteside testified she knew Denning in 2002, Denning came to her with Johnny, asked her to drop them off, and told her he had to “go over there and handle some things.” Id. at 42. She testified that she dropped them off, Denning and Johnny went into the home at the same time, she heard yelling and talking, and she pulled away. She testified that she realized that she had information that would have been important to Davis’s situation “just last year” when she was at a family dinner where Davis’s sister was present and she saw pictures of Davis. Id. at 46. [16] Davis testified that he did not have any way of knowing that Denning was at the scene, he was segregated from Light, and had no phone and mail privileges, and did not know Amy or Milliner. He also testified that his brother was in prison in Arizona and it was not likely that his brother would be brought in as a witness and admit that he did this offense. [17] On March 8, 2016, the court held a hearing at which Davis appeared pro se. Davis called Light as a witness, the prosecutor asked to know the theory for which Davis wished to call Light, and Davis stated in part that Light would testify that “it wasn’t me, she tried to tell them that it wasn’t me, that she was threatened the whole time.” Id. at 62. The prosecutor then objected, asserted in part that it would provide the court with “a certified copy of a conviction under Court of Appeals of Indiana \| Memorandum Decision 49A05-1710-PC-2328 \| July 12, 2018 Page 9 of 21 – of [Light] for obstruction of justice that occurred after this for events arising directly out of this case in which she pled guilty to obstruction of justice.” 1 Id. at 63. The court stated that Light’s statement was already on the record when the trial court “went through all of this” and sustained the prosecutor’s objection. Id. at 65. [18] The State presented the testimony of Kristina Korobov who stated that she was a deputy prosecutor in the Marion County Prosecutor’s office in 2002 and 2003, she remembered the case very well, and the only meeting she had with Light occurred with Light’s attorney. She testified that she believed the prosecutor’s office had served Light with a subpoena for a deposition, Light failed to appear, and the court may have become “involved in getting her to come to court.” Id. at 69. Korobov testified that she believed some witnesses stated threats came from Light and that Light was charged with and ultimately pled guilty to obstruction of justice. Detective Reidenbach testified that he investigated this case, spoke with Amy and Milliner on August 9, 2002, they were both clear in identifying Davis, and they were able to identify Davis based upon their prior experience with him. The court admitted the police report from Davis’s arrest as State’s Exhibit 1, which stated in part that Davis gave the name of Johnny Davis and that his fingerprints came back as belonging to Davis. On September 19, 2017, the post-conviction court denied Davis’s petition. 1 State’s Post-Conviction Exhibit 2 contains an abstract of judgment indicating that Light was convicted of obstruction of justice as a class D felony in 2003. Court of Appeals of Indiana \| Memorandum Decision 49A05-1710-PC-2328 \| July 12, 2018 Page 10 of 21 Discussion [19] Before addressing Davis’s allegations of error, we observe that Davis is proceeding pro se. Such litigants are held to the same standard as trained counsel. Evans v. State, 809 N.E.2d 338, 344 (Ind. Ct. App. 2004), trans. denied. We also note the general standard under which we review a post-conviction court’s denial of a petition for post-conviction relief. The petitioner in a post- conviction proceeding bears the burden of establishing grounds for relief by a preponderance of the evidence. Fisher v. State, 810 N.E.2d 674, 679 (Ind. 2004); Ind. Post-Conviction Rule 1(5). When appealing from the denial of post- conviction relief, the petitioner stands in the position of one appealing from a negative judgment. Fisher, 810 N.E.2d at 679. On review, we will not reverse the judgment unless the evidence as a whole unerringly and unmistakably leads to a conclusion opposite that reached by the post-conviction court. Id. “A post- conviction court’s findings and judgment will be reversed only upon a showing of clear error – that which leaves us with a definite and firm conviction that a mistake has been made.” Id. In this review, we accept findings of fact unless clearly erroneous, but we accord no deference to conclusions of law. Id. The post-conviction court is the sole judge of the weight of the evidence and the credibility of witnesses. Id. I. [20] The first issue is whether Davis was denied effective assistance of trial and appellate counsel. Generally, to prevail on a claim of ineffective assistance of counsel a petitioner must demonstrate both that his counsel’s performance was Court of Appeals of Indiana \| Memorandum Decision 49A05-1710-PC-2328 \| July 12, 2018 Page 11 of 21 deficient and that the petitioner was prejudiced by the deficient performance. French v. State, 778 N.E.2d 816, 824 (Ind. 2002) (citing Strickland v. Washington, 466 U.S. 668, 104 S. Ct. 2052 (1984), reh’g denied). A counsel’s performance is deficient if it falls below an objective standard of reasonableness based on prevailing professional norms. Id. To meet the appropriate test for prejudice, the petitioner must show that there is a reasonable probability that, but for counsel’s unprofessional errors, the result of the proceeding would have been different. Id. A reasonable probability is a probability sufficient to undermine confidence in the outcome. Perez v. State, 748 N.E.2d 853, 854 (Ind. 2001). Failure to satisfy either prong will cause the claim to fail. French, 778 N.E.2d at 824. Most ineffective assistance of counsel claims can be resolved by a prejudice inquiry alone. Id. [21] When considering a claim of ineffective assistance of counsel, a “strong presumption arises that counsel rendered adequate assistance and made all significant decisions in the exercise of reasonable professional judgment.” Morgan v. State, 755 N.E.2d 1070, 1072 (Ind. 2001). “[C]ounsel’s performance is presumed effective, and a defendant must offer strong and convincing evidence to overcome this presumption.” Williams v. State, 771 N.E.2d 70, 73 (Ind. 2002). Evidence of isolated poor strategy, inexperience, or bad tactics will not support a claim of ineffective assistance of counsel. Clark v. State, 668 N.E.2d 1206, 1211 (Ind. 1996), reh’g denied, cert. denied, 520 U.S. 1171, 117 S. Ct. 1438 (1997). “Reasonable strategy is not subject to judicial second guesses.” Burr v. State, 492 N.E.2d 306, 309 (Ind. 1986). We “will not lightly Court of Appeals of Indiana \| Memorandum Decision 49A05-1710-PC-2328 \| July 12, 2018 Page 12 of 21 speculate as to what may or may not have been an advantageous trial strategy as counsel should be given deference in choosing a trial strategy which, at the time and under the circumstances, seems best.” Whitener v. State, 696 N.E.2d 40, 42 (Ind. 1998). In order to prevail on a claim of ineffective assistance due to the failure to object, the defendant must show a reasonable probability that the objection would have been sustained if made. Passwater v. State, 989 N.E.2d 766, 772 (Ind. 2013) (citing Wrinkles v. State, 749 N.E.2d 1179, 1192 (Ind. 2001), cert. denied, 535 U.S. 1019, 122 S. Ct. 1610 (2002)). We apply the same standard of review to claims of ineffective assistance of appellate counsel as we apply to claims of ineffective assistance of trial counsel. Williams v. State, 724 N.E.2d 1070, 1078 (Ind. 2000), reh’g denied, cert. denied, 531 U.S. 1128, 121 S. Ct. 886 (2001). [22] Davis claims his trial counsel was ineffective for allowing Light’s counsel to invoke the Fifth Amendment at a deposition, failing to object to judicial and prosecutorial misconduct that deprived him of Light’s testimony, failing to request immunity for Light, failing to make a cogent argument why Light’s voluntary testimony was admissible, and failing to object to the exclusion of Light’s testimony. Davis appears to argue that his appellate counsel was ineffective for failing to raise the argument that his right to confrontation was violated when the trial court excluded Light’s testimony and letters that exonerated him and that contradicted the State’s proffered hearsay testimony. [23] The Sixth Amendment Confrontation Clause establishes that “[i]n all criminal prosecutions, the accused shall enjoy the right . . . to be confronted with the Court of Appeals of Indiana \| Memorandum Decision 49A05-1710-PC-2328 \| July 12, 2018 Page 13 of 21 witnesses against him.” U.S. CONST. amend. VI. The Sixth Amendment confrontation right, however, occasionally comes into conflict with the Fifth Amendment right against self-incrimination, State v. Taylor, 49 N.E.3d 1019, 1026 (Ind. 2016), which provides that “[n]o person . . . shall be compelled in any criminal case to be a witness against himself.” Recognizing this tension, “courts must watch vigilantly to ensure that the invocation [does] not ‘effectively . . . emasculate the right of cross-examination itself.’” Id. (quoting U.S. v. Zapata, 871 F.2d 616, 623 (7th Cir. 1989) (omission in original) (quoting Delaware v. Fensterer, 474 U.S. 15, 19, 106 S. Ct. 292 (1985))). While the due process clause of the Fourteenth Amendment and the compulsory process or confrontation clauses of the Sixth Amendment guarantee criminal defendants a “meaningful opportunity to present a defense,” Joyner v. State, 736 N.E.2d 232, 242-243 (Ind. 2000), “the power to compel testimony is not absolute.” Kastigar v. U.S., 406 U.S. 441, 444, 92 S. Ct. 1653, 1656 (1972), reh’g denied. A trial court is authorized to determine whether an answer to a question proposed to a witness will incriminate the witness. Duso v. State, 866 N.E.2d 321, 325 (Ind. Ct. App. 2007). [24] The exchange regarding whether Light would testify occurred in the courtroom, and she was represented by counsel. Based upon the exchange, we cannot say that the court advised Light of her right to avoid self-incrimination in a threatening or browbeating manner. Light was represented by counsel at trial and she ultimately decided not to testify. We cannot say that Davis’s trial counsel was ineffective on this basis. See Duso, 866 N.E.2d at 326 (holding that Court of Appeals of Indiana \| Memorandum Decision 49A05-1710-PC-2328 \| July 12, 2018 Page 14 of 21 the defendant’s Sixth Amendment right to compulsory process did not trump a witness’s Fifth Amendment right against self-incrimination). To the extent Davis asserts that his trial counsel was ineffective for permitting Light’s counsel to invoke the Fifth Amendment on Light’s behalf, we observe that the portion of the trial transcript cited by Davis on appeal indicates that Light stated “they did not let me have a deposition” and “as soon as I was trying to say to them what happened, they didn’t like what I had to say, so they basically did not give me a deposition.” Trial Transcript Volume I at 194. The deposition of Light indicates that Light was present at the deposition, did not attempt to testify as to the incident, and did not disagree when her counsel stated that she would not give a statement at that time. We cannot say that Davis has demonstrated that his counsel was ineffective on this ground. [25] With respect to Davis’s assertion that his trial counsel was ineffective for failing to request immunity for Light, we observe that “Indiana, like many states, has enacted legislation giving prosecutors the authority to grant use immunity to witnesses and obviate the self-incrimination privilege of the fifth amendment.” Bubb v. State, 434 N.E.2d 120, 123 (Ind. Ct. App. 1982). “Exercise of this power is limited to prosecutors.” Id. Davis does not point to the record, and our review does not reveal, that Davis asked his trial counsel at the post- conviction hearing why he did not request that Light be afforded immunity. We also observe that his trial counsel objected to the testimony of Officer Wells and Paramedic Warren regarding their discussions with Light, informed the court that he wished to call Light as a witness, questioned Light in the presence Court of Appeals of Indiana \| Memorandum Decision 49A05-1710-PC-2328 \| July 12, 2018 Page 15 of 21 of the court, told the court that Davis was “insistent that I offer [Light] this exhibit [the letter Light allegedly wrote to the prosecutor] and ask her if it was hers,” questioned Light about the letter, and asked Light if she was willing to testify about the events that occurred on August 8, 2002. Trial Transcript Volume I at 190. Trial counsel also asserted “it’s our position – that my client didn’t do this and that her evidence and her testimony is exculpatory in the matter.” Id. at 193. Later, after the State rested, Davis’s trial counsel again called Light. Again, we cannot say that Davis has demonstrated that his trial counsel’s performance was deficient on this basis. [26] With respect to Davis’s argument that his counsel failed to challenge the admission of Officer Wells’s testimony, the United States Supreme Court has explained that “[s]tatements are nontestimonial when made in the course of police interrogation under circumstances objectively indicating that the primary purpose of the interrogation is to enable police assistance to meet an ongoing emergency.” Davis v. Washington, 547 U.S. 813, 822, 126 S. Ct. 2266, 2273 (2006). “In making the primary purpose determination, standard rules of hearsay, designed to identify some statements as reliable, will be relevant.” Michigan v. Bryant, 562 U.S. 344, 358-359, 131 S. Ct. 1143, 1155 (2011). “To determine whether the ‘primary purpose’ of an interrogation is ‘to enable police assistance to meet an ongoing emergency,’ which would render the resulting statements nontestimonial, we objectively evaluate the circumstances in which the encounter occurs and the statements and actions of the parties.” Id. at 359, 131 S. Ct. at 1156 (quoting Davis, 547 U.S. at 822, 126 S. Ct. 2266). Court of Appeals of Indiana \| Memorandum Decision 49A05-1710-PC-2328 \| July 12, 2018 Page 16 of 21 [27] The facts here objectively demonstrate that the primary purpose of Officer Wells’s discussion with Light was to enable police assistance to meet an ongoing emergency. First, Officer Wells’s encounter with Light was at the scene rather than at the police station. Davis does not challenge the post- conviction court’s finding that Officer Wells testified that, when he spoke to Light, she was soaked in blood and blood was pumping out of the wounds in her head. Second, because Light’s statements were excited utterances, they “are considered reliable because the declarant, in the excitement, presumably cannot form a falsehood.” See Bryant, 562 U.S. at 361, 131 S. Ct. at 1157. Third, because Davis had fled the scene of a violent attack and could not be located, a reasonable officer would have considered the threat to Light, first responders, and the public ongoing. See id. at 363-364, 131 S. Ct. at 1158. Fourth, Officer Wells quickly asked Light her identity and the identity of her assailant. He testified that “I was . . . trying to get right to the point – what had occurred and who did it.” Trial Transcript Volume I at 32. There is no evidence suggesting that Officer Wells told Light that he needed Davis’s identification for purposes of prosecution, and there is no reason to think that “a conversation which beg[an] as an interrogation to determine the need for emergency assistance . . . evolve[d] into testimonial statements.” See Bryant, 562 U.S. at 365, 131 S. Ct. at 1159 (quotations omitted). Officer Wells’s request for the identity of her attacker was information that allowed him to “assess the situation, the threat to [his] own safety, and possible danger to the potential victim and to the public, including to allow [him] to ascertain whether [he] would be encountering a violent felon.” See id. at 376, 131 S. Ct. at 1166 Court of Appeals of Indiana \| Memorandum Decision 49A05-1710-PC-2328 \| July 12, 2018 Page 17 of 21 (citations and quotations omitted). The circumstances of the encounter, as well as the statements and actions of Light and Officer Wells, reveal that Light’s identification of herself and Davis were not testimonial statements. We cannot say that the Confrontation Clause barred their admission at Davis’s trial. See McQuay v. State, 10 N.E.3d 593, 599 (Ind. Ct. App. 2014). Also, Davis has not demonstrated that the statements to Paramedic Warren were testimonial. See Perry v. State, 956 N.E.2d 41, 57 (Ind. Ct. App. 2011) (holding that the victim’s statements to a medical provider were not testimonial). Accordingly, we cannot say that Davis’s trial counsel or appellate counsel were ineffective on this ground. II. [28] The next issue is whether Davis is entitled to a new trial due to newly discovered evidence. Generally, new evidence will mandate a new trial only when the defendant demonstrates that: (1) the evidence has been discovered since the trial; (2) it is material and relevant; (3) it is not cumulative; (4) it is not merely impeaching; (5) it is not privileged or incompetent; (6) due diligence was used to discover it in time for trial; (7) the evidence is worthy of credit; (8) it can be produced upon a retrial of the case; and (9) it will probably produce a different result at retrial. Carter v. State, 738 N.E.2d 665, 671 (Ind. 2000) (citing Fox v. State, 568 N.E.2d 1006, 1007 (Ind. 1991)). We analyze these nine factors “with care, as ‘[t]he basis for newly discovered evidence should be received with great caution and the alleged new evidence carefully scrutinized.’” Id. (quoting Reed v. State, 508 N.E.2d 4, 6 (Ind. 1987)). “The burden of showing Court of Appeals of Indiana \| Memorandum Decision 49A05-1710-PC-2328 \| July 12, 2018 Page 18 of 21 that all nine requirements are met rests with the petitioner for post-conviction relief.” Taylor v. State, 840 N.E.2d 324, 330 (Ind. 2006). [29] Without citation to the record, Davis argues that a comparison of the picture of Antwon Davis and Denning demonstrates how witnesses misidentified Antwon. He also asserts that certain facts in Denning’s testimony are undisputable and establish the seventh and ninth prongs for determining whether new evidence mandates a new trial. He contends that the testimony of Whiteside, Amy, and Milliner corroborates Denning’s account. [30] With respect to the seventh prong, whether the evidence is worthy of credit, we note that the post-conviction court is the sole judge of the weight of the evidence and the credibility of witnesses. Fisher, 810 N.E.2d at 679. The post- conviction court found Denning’s testimony, “both in terms of his demeanor and credibility as a witness, and in light of the other eyewitnesses who testified, is not worthy of credit.” Appellant’s Appendix Volume 2 at 226. The court also found Denning’s testimony “to be inherently unbelievable and contradictory with other witnesses at trial and at the Post-Conviction evidentiary hearing.” Id. [31] To the extent Davis relies on the testimony of Amy and Milliner, we note that the post-conviction court found that “the post-conviction testimony of Amy Heady and Kevin Milliner offered nothing substantive, except perhaps that [Davis] looks similar to a photograph of his brother.” Id. Further, we observe that their testimony at the post-conviction hearing would merely be impeaching Court of Appeals of Indiana \| Memorandum Decision 49A05-1710-PC-2328 \| July 12, 2018 Page 19 of 21 of their own trial testimony. We cannot say that Davis satisfied the fourth prong of the test for newly discovered evidence. See Coates v. State, 534 N.E.2d 1087, 1098 (Ind. 1989) (“Furthermore, evidence that merely impeaches generally does not support a claim for a new trial based on newly discovered evidence.”) (citing Downs v. State, 482 N.E.2d 716 (Ind. 1985)). [32] As to the ninth prong, in determining whether newly discovered evidence would likely produce a different result at a new trial, the post-conviction court may consider the weight a reasonable trier of fact would give the evidence and may evaluate the probable impact the evidence would have in a new trial considering the facts and circumstances shown at the original trial. Nunn v. State, 601 N.E.2d 334, 337 (Ind. 1992). The newly discovered evidence must raise a strong presumption a new trial would achieve a different result. Id. Even if Amy and Milliner testified at a new trial, the State would have an opportunity to rehabilitate their testimony by introducing their prior testimony. As pointed out by the post-conviction court, Denning’s testimony conflicted with Whiteside’s testimony. We are not persuaded that Davis has raised a strong presumption a new trial would achieve a different result.2 2 To the extent Davis appears to argue that the post-conviction court abused its discretion when it prevented him from presenting Light’s testimony, Davis made similar arguments regarding Light’s testimony at trial, Light had previously invoked her Fifth Amendment privilege, and the record already contained Light’s statements that Davis did not beat her. With respect to his assertion that the trial court abused its discretion when it prevented post-conviction counsel from fully and effectively questioning witnesses, Davis cites to pages 37, 38, and 41 of the post-conviction transcript and we cannot say that these pages demonstrate that the trial court abused its discretion. Court of Appeals of Indiana \| Memorandum Decision 49A05-1710-PC-2328 \| July 12, 2018 Page 20 of 21 Conclusion [33] For the foregoing reasons, we affirm the post-conviction court’s denial of Davis’s petition for post-conviction relief. [34] Affirmed. Bailey, J., and Crone, J., concur. Court of Appeals of Indiana \| Memorandum Decision 49A05-1710-PC-2328 \| July 12, 2018 Page 21 of 21	{ "pile_set_name": "FreeLaw" }
NO. 07-01-0421-CR IN THE COURT OF APPEALS FOR THE SEVENTH DISTRICT OF TEXAS AT AMARILLO PANEL A MARCH 12, 2002 ______________________________ CLYDE LAVON SMITH, APPELLANT V. THE STATE OF TEXAS, APPELLEE _________________________________ FROM THE 263RD DISTRICT COURT OF HARRIS COUNTY; NO. 847862; HONORABLE JIM WALLACE, JUDGE _______________________________ Before BOYD, C.J., and REAVIS and JOHNSON, JJ. Pending before this Court is appellant's pro se request to withdraw his notice of appeal. Rule 42.2(a) of the Texas Rules of Appellate Procedure provides that an appeal may be dismissed if appellant withdraws his notice of appeal by signed motion accompanied by the signature of his attorney. However, where appellant is proceeding pro se, we apply Rule 2 of the Texas Rules of Appellate Procedure to suspend the requirement that appellant's request be accompanied by his attorney's signature. See Rodriguez v. State, 970 S.W.2d 133, 135 (Tex.App.--Amarillo 1998, pet. ref'd). An accused has the ultimate authority to make certain fundamental decisions regarding his case, including whether to prosecute an appeal. See Conners v. State, 966 S.W.2d 108 (Tex.App.--Houston [1st Dist.] 1998, pet. ref'd), citing Jones v. Barnes, 463 U.S. 745, 103 S.Ct. 3308, 77 L.Ed.2d 987 (1983). Thus, we suspend the operation of Rule 42.2(a) in this case and dismiss the appeal based upon appellant's request to withdraw his notice of appeal. No decision of this Court having been delivered, we dismiss the appeal and no motion for rehearing will be entertained and our mandate will issue forthwith. Accordingly, the appeal is dismissed. Don H. Reavis Justice Do not publish. rt was Biased In his first issue, appellant contends the trial court was not impartial or neutral. This supposed lack of impartiality was evinced by its comment that "I told you that if you came back in here you weren't going to like it. . . "and its decision to set bail on appeal at $50,000. Yet, appellant objected below neither to the court's comment, to the amount of bail nor to the purported lack of impartiality. Neither does the record reflect that appellant moved for a new trial based upon discovering the trial court's supposed impartiality or moved for the judge's recusal. Consequently, the complaint was not preserved for review. Tex. R. App. P. 33.1; see Baxter v. State, 936 S.W.2d 469, 471 (Tex. App.-Fort Worth 1996), pet. dism'd, improvidently granted, 960 S.W.2d 82 (Tex. Crim. App. 1998) (holding that the contemporaneous objection rule applies to allegations that the accused was denied due process); Smith v. State, 993 S.W.2d 408, 410 (Tex. App.-Houston [14th Dist.] 1999, pet. ref'd) (holding that by failing to object to the bond conditions when they were made, appellant failed to preserve error for appeal). Moreover, read in context, we find nothing that suggests the trial court predetermined the outcome. In referring back to the cautions uttered when probating the original sentence, the trial court simply informed appellant that he had been previously warned and afforded a chance to redeem himself. This was then followed by iterations revealing the court's reluctance to imprison appellant and its need to retain its credibility and obtain the accused's attention. Simply put, a trial court need not utter hollow warnings or advice to avoid allegations of impartiality. Surely, if children can recognize when parents do not mean what they say, then so too can felons. Lastly, the trial court had before it appellant's own admissions as well as other evidence of his guilt. So too did it opt to render a lesser term of imprisonment than that originally levied. These circumstances remove the situation before us from those indicative of partiality. See Brumit v. State, 206 S.W.3d 639, 644-45 (Tex. Crim. App. 2006) (holding that the trial court's comments which included calling the defendant a predator did not show bias or partiality when the record reflected that the trial court reviewed the evidence and a predetermined sentence was not imposed). Issues Two and Three - Missing Records In his last two issues, appellant contends that the record does not support the revocation because it omits the State's motion to revoke and the conditions of probation originally imposed on him. Both appear in a supplemental clerk's record, however. Consequently, the issues are moot. See Sawyer v. State, 655 S.W.2d 226, 227 (Tex. App.-Houston [14th Dist.] 1983, no pet.) (holding that complaints about documents missing from the record are rendered moot when the documents are included in a supplemental appellate record). We affirm the judgment of the trial court. Brian Quinn Chief Justice Do not publish.	{ "pile_set_name": "FreeLaw" }
In The Court of Appeals Ninth District of Texas at Beaumont ____________________ NO. 09-08-277 CR ____________________ TIMOTHY RAY HALL, Appellant V. THE STATE OF TEXAS, Appellee On Appeal from the Criminal District Court Jefferson County, Texas Trial Cause No. 07-01211 MEMORANDUM OPINION On May 28, 2008, the trial court sentenced Timothy Ray Hall on a conviction for possession of a controlled substance. Hall filed a notice of appeal on June 4, 2008. The trial court entered a certification of the defendant's right to appeal in which the court certified that this is a plea-bargain case and the defendant has no right of appeal. See Tex. R. App. P. 25.2(a)(2). The district clerk has provided the trial court's certification to the Court of Appeals. On June 19, 2008, we notified the parties that we would dismiss the appeal unless an amended certification was filed within fifteen days of the date of the notice and made a part of the appellate record. See Tex. R. App. P. 25.2(f). The record has not been supplemented with an amended certification. Because the record does not contain a certification that shows the defendant has the right of appeal, we must dismiss the appeal. See Tex. R. App. P. 25.2(d). Accordingly, we dismiss the appeal for want of jurisdiction. APPEAL DISMISSED. __________________________________ CHARLES KREGER Justice Opinion Delivered July 30, 2008 Do not publish Before McKeithen, C.J., Kreger and Horton, JJ.	{ "pile_set_name": "FreeLaw" }
986 So.2d 464 (2007) Leslie Waukene COLEMAN v. STATE of Alabama. CR-06-1242. Court of Criminal Appeals of Alabama. August 31, 2007. Leslie W. Coleman, pro se. Troy King, atty. gen., and Marc Bass, asst. atty. gen., for appellee. BASCHAB, Presiding Judge. On January 5, 1994, the appellant, Leslie Waukene Coleman, was convicted of attempted murder. On February 22, 1994, the trial court sentenced him, as a habitual 465 offender, to imprisonment for life without the possibility of parole. See § 13A-5-9(c)(3), Ala.Code 1975. On October 13, 2006, the appellant filed a motion for reconsideration of his sentence. Without requiring a response, the circuit court summarily denied the petition. This appeal followed. The appellant argues that the circuit judge who ruled on his motion to reconsider should have recused himself because he allegedly was biased against him. Specifically, he contends that the circuit judge "was the prosecuting District Attorney for the County of Mobile in 1976, who indicted Coleman and prosecuted him on four of his prior convictions which was used to enhanced his sentence to life without parole under [the Habitual Felony Offender Act]." (Appellant's brief at p. 4.) We addressed a similar situation in Crawford v. State, 686 So.2d 199 (Ala. Crim.App.1996). In that case, Crawford alleged that the trial judge should have recused himself from the trial of his case because he had been arrested and prosecuted in the Mobile District Court; because his preliminary hearings had been conducted while the trial judge was serving as the Mobile County District Attorney; because he was bound over to the grand jury while the trial judge was serving as the Mobile County District Attorney; and because the prior convictions that were used to enhance his sentence had been prosecuted under the trial judge's supervision as the Mobile County District Attorney. In Crawford, the trial judge noted that he did not have any knowledge of Crawford's cases and that he had not been aware that Crawford's case was pending and denied the motion recuse. On appeal, this court held: "Despite the trial judge's assurance that he was not biased, this Court has previously decided this matter adversely to the judge under almost identical facts. In Crumpton v. State, 677 So.2d 814 (Ala.Cr.App.1995), Crumpton contended that the same trial judge whose recusal is sought in the instant case erred in failing to recuse himself from the case because he had been district attorney for Mobile County when the charges were entered against Crumpton. In that case, Crumpton was arrested on July 17, 1994, in the current case the appellant was arrested on July 21, 1994. Crumpton and the appellant in the present case, were indicted on the same date September 23, 1994. In holding that Judge Galanos should have recused, this Court cited the Alabama Canons of Judicial Ethics and Ex parte Sanders, 659 So.2d 1036, 1037-38 (Ala.Cr.App. 1995), stating: "`"The appellant was arrested and charged with three felonies. Felonies are prosecuted by the state's representative, who is the district attorney for the specific county in which the crime occurred. At one point Galanos was the attorney of record for the cases against the appellant. "`"Section 12-1-12, Code of Alabama 1975, states: "`"`No judge of any court shall sit in any case or proceeding in which he is interested or related to any party within the fourth degree of consanguinity or affinity or in which he has been of counsel or in which is called in question the validity of any judgment or judicial proceeding in which he was of counsel, or the validity or construction of any instrument or paper prepared or signed by him as counsel or attorney, without the consent of the parties entered of record or put in writing if the court is not of record.' 466 "`"Canon 3(C)(1), Alabama Canons of Judicial Ethics, states: "`"`(1) A judge should disqualify himself in a proceeding in which his disqualification is required by law or his impartiality might reasonably be questioned, including but not limited to instances where: "`"`(a) He has a personal bias or prejudice concerning a party, or personal knowledge of disputed evidentiary facts concerning the proceeding. "`"`(b) He served as a lawyer in the matter in controversy, or a lawyer with whom he previously practiced law served during such association as a lawyer in the matter, or the judge or such lawyer has been a material witness concerning it.'" "`(Emphasis added [in Sanders].) "`"The Alabama Supreme Court in Rushing v. City of Georgiana, 361 So.2d 11 (Ala.1978), had the first occasion after the adoption of the Alabama Canons of Judicial Ethics to address a similar question to the one presented here. The court stated the following concerning Canon 3: "`"`By the terms of Canon 3 "[a] judge should disqualify himself in a proceeding in which ... his impartiality might reasonably [be] questioned, ..." Especially noted as an instance for disqualification is that in which he has "served as a lawyer in the matter in controversy, ..." Even though the earlier case was a criminal prosecution between the State of Alabama and Rushing, whereas the present case is a civil action between Rushing and the City of Georgiana, is the difference in the parties and in the nature of the controversy material to the Judge's relationship to both? We think not. "`"`For one thing, they represent the same "matter in controversy." A "matter" is: "`"`[a] subject (as a fact, an event or course of events, or a circumstance, situation, or question) of interest or relevance: ... Webster's Third New International Dictionary (1971)." "`"`. . . As the prosecutor in the criminal case, the respondent was a "lawyer" in that "matter in controversy." While we do not suggest the existence of the slightest degree of personal bias or prejudice toward the petitioner by the respondent, nevertheless this fact of his prior participation as prosecutor in the criminal case under these circumstances makes the latter civil cases a "proceeding in which ... his impartiality might reasonably be questioned, ..." Accord, Payne v. State, 48 Ala.App. 401, 407-9, 265 So.2d 185 (1972).' "`"361 So.2d at 12-13. "`"The Alabama Supreme Court in Ex parte Duncan, 638 So.2d 1332 (Ala), cert. denied, 513 U.S. 1007, 115 S.Ct. 528, 130 L.Ed.2d 432 (1994), further expressed its view on Canon 3(C)(1) by stating: "`"`Under Canon 3(C)(1), Alabama Canons of Judicial Ethics, recusal is required when "facts are shown which make it reasonable for members of the public or a party, or counsel opposed to question the impartiality of the judge." Acromag-Viking v. Blalock, 420 So.2d 60, 61 (Ala. 1982). Specifically, the Canon 3(C) test is: "Would a person of ordinary prudence in the judge's position knowing all of the facts 467 known to the judge find that there is a reasonable basis for questioning the judge's impartiality?" Matter of Sheffield, 465 So.2d 350, 356 (Ala. 1984). The question is not whether the judge was impartial in fact, but whether another person, knowing all of the circumstances, might reasonably question the judge's impartiality whether there is an appearance of impropriety. Id.; see Ex parte Balogun, 516 So.2d 606 (Ala. 1987); see, also, Hall v. Small Business Administration, 695 F.2d 175 (5th Cir.1983).' "`"638 So.2d at 1334. "`"Based on the Alabama Canons of Judicial Ethics and Alabama Supreme Court cases interpreting Canon 3(C)(1), we hold that Judge Galanos erred in failing to recuse himself from hearing the appellant's cases. As the Alabama Supreme Court stated in Duncan, the question is not whether the judge is in fact impartial but whether another person `might reasonably question the judge's impartiality.' 638 So.2d at 1334. In this case, that question can be answered only in the affirmative.' "`659 So.2d at 1037-38.' "677 So.2d at 815-16. See also Ex parte Bryant, 675 So.2d 552 (Ala.Cr.App. 1996). "Because the trial judge should have recused in this matter, this judgment is due to be reversed and the cause remanded to the Circuit Court for Mobile County for proceedings consistent with this opinion." 686 So.2d at 202-03. See also Ex parte Sanders, 659 So.2d 1036 (Ala.Crim.App. 1995). In this case, the appellant alleged that the circuit judge who ruled on his motion was the district attorney who indicted him and prosecuted him for four of the prior convictions that were used to the enhance the sentence for which he was seeking reconsideration. Neither the State nor the circuit judge responded to this specific allegation. Also, in his motion to reconsider his sentence, the appellant alleged that he was a nonviolent offender and included a list of the prior convictions that were used to enhance his sentence. When ruling on the motion, the circuit judge was required to determine whether the appellant was a violent offender and whether he was eligible to have his sentence reconsidered pursuant to § 13A-5-9.1, Ala.Code 1975. In making this determination, the circuit judge could have considered the facts and circumstances surrounding the appellant's prior convictions. See Holt v. State, 960 So.2d 726 (Ala.Crim.App.2006). Thus, if the circuit judge was the district attorney at the time of the proceedings underlying the prior convictions that were used to enhance the appellant's sentence, another person might reasonably question the judge's impartiality in the present case. Accordingly, we remand this case for the circuit judge to make specific, written findings of fact as to whether he was the district attorney at the time of the proceedings underlying the prior convictions that were used to enhance the appellant's sentence. On remand, the circuit judge may order the State to respond and/or conduct an evidentiary hearing. If the circuit judge determines that he was the district attorney at the time of the proceedings underlying the appellant's prior convictions, then he should set aside his ruling on the appellant's motion for reconsideration of sentence and grant the appellant's motion to recuse. The circuit judge shall take all necessary action to see that the circuit clerk makes due return to this court at the earliest possible time and within 42 days after the release of this 468 opinion. The return to remand shall include the circuit judge's written findings of fact; a copy of the State's response, if any; and a transcript of the remand proceedings, if any. REMANDED WITH INSTRUCTIONS.[] McMILLAN, SHAW, WISE, and WELCH, JJ., concur. NOTES [] Note from the reporter of decisions: On December 14, 2007, on return to remand, the Court of Criminal Appeals affirmed, without opinion.	{ "pile_set_name": "FreeLaw" }
557 F.2d 485 10 ERC 1433, 7 Envtl. L. Rep. 20,670 SIERRA CLUB, Plaintiff-Appellant,v.Russell TRAIN, Administrator of the Environmental ProtectionAgency, et al., Defendants-Appellees,v.STATE OF ALABAMA et al., Intervenors-Appellants. No. 75-4028. United States Court of Appeals,Fifth Circuit. Aug. 12, 1977. Edward Still, Birmingham, Ala., Ralph I. Knowles, University, Ala., for Sierra Club. William J. Baxley, Atty. Gen., Henry H. Caddell, Asst. Atty. Gen., Montgomery, Ala., for State of Ala. Wayman G. Sherrer, U. S. Atty., L. Scott Atkins, Asst. U. S. Atty., Birmingham, Ala., Eva R. Datz, Carl Strass, Peter R. Taft, Asst. Attys. Gen., Dept. of Justice, Washington, D. C., for Train. Charles A. Powell, III, John E. Grenier, Birmingham, Ala., for Mitchell Neely. Martin Ray, Tuscaloosa, Ala., for Abston Const. Co. Appeal from the United States District Court for the Northern District of Alabama. Before TUTTLE, WISDOM and COLEMAN, Circuit Judges. COLEMAN, Circuit Judge: 1 The Sierra Club filed a "citizen's suit" under 33 U.S.C. § 1365 (Supp.1976) for a writ of mandamus directing Russell Train, Administrator of the Environmental Protection Agency (EPA), to enforce the Federal Water Pollution Control Act Amendments of 1972 (FWPCAA) as required by 33 U.S.C. § 1319(a)(3) (Supp.1976)1 and for an injunction requiring Abston Construction Company, Inc. and Mitchell & Neely, Inc. to cease polluting Daniel Creek, and to restore it to its natural condition. A motion to dismiss defendant Train was filed, and the District Court ordered the dismissal, finding that although § 1365(a) (2)2 does confer district court jurisdiction over a citizen's civil action against an EPA Administrator for failure to perform a nondiscretionary duty under FWPCAA, the EPA Administrator's enforcement duties under § 1319(a)(3) are discretionary and, therefore, jurisdiction over this suit was lacking. The Sierra Club appealed Train's dismissal, contending that the jurisdictional prerequisites specified by § 1365(a)(2) did exist since the word "shall" in § 1319(a)(3) imposes a mandatory duty on the EPA Administrator to issue an order requiring Abston Construction Company, Inc. and Mitchell & Neely, Inc. to comply with the FWPCAA or to bring suit against those corporations to effectuate compliance, neither of which was done. I. 2 After the Sierra Club's suit was filed, the United States, at the request of the Secretary of the Army, commenced an action to enjoin the United States Pipe and Foundry Company, among others, including Abston Construction Company, Inc. and Mitchell & Neely, Inc., the two corporate defendants in the Sierra Club suit, from discharging refuse matter and fill material into the Daniel Creek and the Black Warrior River, allegedly in violation of the FWPCAA of 1972 and of the Rivers and Harbors Appropriation Act of 1899, and to compel restoration of the Daniel Creek and the Black Warrior River to their conditions existing prior to the illegal discharge. The District Court ordered the United States' claims based upon the FWPCAA be dismissed without prejudice to the EPA Administrator's rights. 3 Based on the filing of United States v. United States Pipe and Foundry Company, No. 76-P-0035-W (N.D.Ala., filed Jan. 12, 1976), Train contends that the Sierra Club's appeal from his dismissal as a defendant is moot since all of the relief being sought by the Sierra Club in this suit is also being sought by the United States in United States v. United States Pipe and Foundry. Accordingly, a motion to dismiss this appeal has been filed. The mootness question must be disposed of prior to determining whether or not § 1319(a)(3) imposes a mandatory duty on the EPA Administrator, a matter of statutory construction and the substantive issue of this case. 4 We must decide whether a suit commenced by the United States against Abston Construction Company and Mitchell & Neely, Inc., among others, under the Rivers and Harbors Appropriation Act of 1899 to enjoin discharge of refuse into navigable waters and to compel restoration of those waters to their natural conditions moots the Sierra Club's appeal from the dismissal of Train as a defendant in a citizen's suit for a writ of mandamus commanding the EPA Administrator to issue a pollution abatement order against the Abston Construction Company and Mitchell & Neely, Inc. 5 An appeal will be dismissed for mootness when a viable controversy between adverse parties susceptible to judicial resolution and relief no longer exists. Powell v. McCormack, 395 U.S. 486, 89 S.Ct. 1944, 23 L.Ed.2d 491 (1969); Brownlow v. Schwartz, 261 U.S. 216, 43 S.Ct. 263, 67 L.Ed. 620 (1923); Allen v. Sisters of St. Joseph, 5 Cir. 1974, 490 F.2d 81. See generally 6A Moore's Federal Practice P 0.416(6), 57.13 (2d ed. 1974). The case between the Sierra Club and Train remains a live controversy susceptible to judicial resolution. A judicial decision on the merits will determine whether or not the EPA Administrator's duty under § 1319(a)(3) to issue a compliance order is mandatory. The filing of a suit by the United States to enjoin discharge of refuse does not satisfy the duty, if any, of the EPA Administrator to issue an order for compliance with the FWPCAA. 6 Filing of a suit by the United States to enjoin certain corporations from violating a Rivers and Harbors Appropriation Act provision which pronounces the discharge of refuse into navigable waters illegal does not moot the appeal from the dismissal of the EPA Administrator as a defendant in a suit to compel the EPA Administrator, as allegedly required by FWPCAA, to issue a pollution abatement order against two of the defendants in the United States' suit. The motion to dismiss Sierra's appeal as moot is denied. II. 7 The substantive issue in this case is one of statutory construction, specifically whether § 1319(a)(3) imposes a discretionary or a non-discretionary duty on the EPA Administrator to issue an order requiring compliance with the FWPCAA. In statutory terms, the question is whether or not "shall" imposes a mandatory duty. If § 1319(a)(3) imposes a mandatory duty, then the District Court's dismissal of Train as a defendant for lack of subject matter jurisdiction was in error and must be reversed since § 1365(a)(2) confers jurisdiction on district courts over suits to compel the EPA Administrator to perform a mandatory duty; however, if the duty is discretionary, the District Court's dismissal was correct and should be affirmed. 8 The pertinent portions of FWPCAA, requiring construction, are set forth immediately following. Section 1319 provides: 9 (a)(3) Whenever on the basis of any information available to him the Administrator finds that any person is in violation of . . . (FWPCAA), he shall issue an order requiring such person to comply with . . . (FWPCAA), or he shall bring a civil action in accordance with subsection (b) of this section. 10 (b) The Administrator is authorized to commence a civil action for appropriate relief . . . for any violation for which he is authorized to issue a compliance order under subsection (a) of this section. 11 In interpreting statutes, a court's function "is to construe the language so as to give effect to the intent of Congress." United States v. Am. Trucking Ass'ns, 310 U.S. 534, 542, 60 S.Ct. 1059, 1063, 84 L.Ed. 1345 (1940). The most persuasive evidence of Congressional intent is the wording of the statute. Id. Upon "superficial examination," § 1319(a)(3)'s statutory language "shall" appears to clearly mandate that § 1319(a)(3) imposes a non-discretionary duty on the EPA Administrator. Use of the word "shall" generally indicates a mandatory intent unless a convincing argument to the contrary is made. C. Sands, Sutherland's Statutory Construction § 25.04 (4th ed. 1973). Such an argument may be waged when extrinsic aids such as the purpose of the statute, Escoe v. Zerbst, 295 U.S. 490, 55 S.Ct. 818, 79 L.Ed. 1566 (1935), the statute as a whole, or the legislative history indicates an intention that the statute be given a discretionary effect. United States v. St. Regis Paper Co., 2 Cir. 1966, 355 F.2d 688. Although a salutary rule of statutory construction prohibits resort to extrinsic aids when a statute on its face appears to be clear and unambiguous, we heed a caution which has been repeated with specific reference to the FWPCAA of 1972 that "(W)hen aid to construction of the meaning of the words, as used in the statute, is available, there certainly can be no 'rule of law' which forbids its use, however clear the words may appear on 'superficial examination.' " Train v. Colorado Pub. Int. Research Group, 426 U.S. 1, 10, 96 S.Ct. 1938, 1942, 48 L.Ed.2d 434 (1976); Exxon Corp. v. Train, 5 Cir. 1977, 554 F.2d 1310 at p. 1322. In the instant case we think it imperative that we examine such aids to determine the intent of Congress. 12 The administrative agency's interpretation, along with the legislative history and the statute as a whole, are the aids which have been examined by this Court. The EPA, as the agency charged with enforcement of the FWPCAA, construes this statute as imposing a discretionary duty, and in absence of any cogent argument that the agency's construction is contrary to congressional intent, the agency's construction will be sustained. EPA v. State Water Resources Control Bd., 426 U.S. 200, 227, 96 S.Ct. 2022, 2035, 48 L.Ed.2d 578, 595 (1976). The Sierra Club contends that the legislative history demonstrates the inconsistency of the EPA's construction with Congress' intent. Yet, the Congressional materials accompanying the FWPCAA do not contain a definitive resolution of the discretionary v. non-discretionary conflict. 13 Even during the legislative stage, dissension existed over whether § 1319(a) (3) created a discretionary or non-discretionary duty. The discord is evidenced by the distinction between the Senate version and the House version of the bill: Senate Bill 14 Section 309 requires the Administrator . . . to issue a compliance order or to bring a civil suit against the pollutor. 15 (T)he section requires him to either issue an order that requires immediate compliance or to bring a civil suit. . . . If such an abatement order is not complied with, the Administrator would initiate a civil suit for appropriate relief, such as an injunction. House Amendment 16 Section 309 is basically the same as the Senate bill except that the Administrator is authorized rather than required to initiate civil actions or criminal proceedings. . . . Conference substitute 17 This is the same as the House Amendment. 18 H.R.Conf.Rep.No.92-1465, 92d Cong., 2d Sess. (1972), reprinted in House Comm. on Pub. Works, 93rd Cong., 1st Sess., Laws of the United States Relating to Water Pollution Control and Environmental Quality (1973). 19 The Sierra Club has contended that while the House amendment did remove the mandatory aspect of the EPA Administrator's duty to bring suit, the duty to issue a compliance order remained mandatory. The Sierra Club theorizes that since the duty to issue an abatement order was mandatory in the Senate bill, since the House amendment spoke only to the Administrator's duty to commence suits, and since the Conference substitute incorporated the House amendment, this duty retained its mandatory character. Whether the Senate bill imposed a mandatory duty is, however, unclear. Although, according to one portion of Senate Report No. 92-414, "the section requires him to either issue an order that requires immediate compliance or to bring a civil suit," (1972) U.S.Code Cong. & Admin.News, pp. 3668, 3809, another portion of that same Senate Report states: "The task of enforcing provisions of the bill is assigned to the Administrator. . . . (T)he Administrator may issue an order to comply or go to court against the violator." (1972) U.S.Code Cong. & Admin.News, pp. 3668, 3677. The Discussion of Intent contained in the same Senate Report was quite explicit on the subject: 20 The Committee again, however, notes that the authority of the Federal Government should be used judiciously by the Administrator in those cases (which) deserve Federal action because of their national character, scope, or seriousness. . . . It is clear that the Administrator is not to establish an enforcement bureaucracy but rather to reserve his authority for the cases of paramount interest. 21 (1972) U.S.Code Cong. & Admin.News, pp. 3668, 3730. The quoted portions demonstrate that the Senate Report cannot be relied upon as conclusive evidence that the Senate intended the § 1319(a)(3) duty to be mandatory. Because of this inconclusiveness, the blank spaces in the Sierra Club theory are apparent. 22 The Sierra Club further attempts to support its theory by claiming that § 1319(b) provides only that the initiation of a civil suit is a discretionary duty while § 1319(b) does not address the issue of whether or not the issuance of compliance order is a non-discretionary duty. An examination of the statute itself will reveal the fallacy of this purported logic. Section 1319 provides: 23 (a)(3) Whenever on the basis of any information available to him the Administrator finds that any person is in violation of (the FWPCAA) . . ., he shall issue an order requiring such person to comply with such section or requirement, or he shall bring a civil action in accordance with subsection (b) of this section. 24 (b) The Administrator is authorized to commence a civil action for appropriate relief, . . . for any violation for which he is authorized to issue a compliance order under subsection (a) of this section. (emphasis added). 25 A statute must be examined in light of the words and the structure of the act in order to determine the legislative intent and the true meaning of the statute. Exxon Corp. v. Train, 5 Cir. 1977, 554 F.2d 1310. Section 1319, especially subsection (b)'s statutory language "is authorized," clearly demonstrates the discretionary flavor of the statute. 26 Proper statutory construction requires more than linguistic examination and review of the rules of statutory construction. The interpretation should be reasonable, and where the result of one interpretation is unreasonable, while the result of another interpretation is logical, the latter should prevail. C. Sands, Sutherland's Statutory Construction § 45.12 (4th ed. 1973); see Rosado v. Wyman, 397 U.S. 397, 414-15, 90 S.Ct. 1207, 25 L.Ed.2d 442 (1970); United States v. St. Regis Paper Co., 2 Cir. 1966, 355 F.2d 688. 27 Reason would dictate that the duties prescribed by § 1319(a)(3) be found discretionary. Since the Administrator at his discretion may bring suit, concluding the Administrator's duty to issue an abatement order to be mandatory would be unreasonable. For example, if the Administrator did issue an abatement order which was not complied with and the Administrator did not commence a suit for failure to comply, the empty gesture of issuing an abatement order would not foster the FWPCAA's goal of pollution elimination. The citizen's alternative would be to file a suit to enforce the FWPCAA effluent limitation standards, but this right exists in the absence of the issuance of a compliance order by the Administrator. The citizen possesses the same right under the FWPCAA with or without issuance of a compliance order to bring suit against and receive damages from an alleged pollutor. In the quest to eliminate pollution a compliance order by the Administrator is unnecessary. On the other hand, the issuance of orders which the Administrator does not intend to pursue in court would be an exercise in practical futility, undermining the prestige and the effectiveness of the EPA. 28 We hold that the duties imposed by § 1319(a)(3) on the EPA Administrator are discretionary. Since § 1365(a)(2) only grants jurisdiction over citizen suits to force the EPA Administrator to perform a mandatory duty imposed by the FWPCAA, and since § 1319(a)(3) imposes a discretionary duty, the dismissal of Train as a defendant for lack of subject matter jurisdiction is 29 AFFIRMED. 1 33 U.S.C. § 1319(a)(3) provides: Whenever on the basis of any information available to him the Administrator finds that any person is in violation of section 301, 302, 306, 307, or 308 of this Act, or is in violation of any permit condition or limitation implementing any of such sections in a permit issued under section 402 of this Act by him or by a State, he shall issue an order requiring such person to comply with such section or requirement, or he shall bring a civil action in accordance with subsection (b) of this section. 2 33 U.S.C. § 1365(a)(2) provides: Except as provided in subsection (b) of this section, any citizen may commence a civil action on his own behalf against the Administrator where there is alleged a failure of the Administrator to perform any act or duty under this Act which is not discretionary with the Administrator. The district courts shall have jurisdiction, without regard to the amount in controversy or the citizenship of the parties, to enforce such an effluent standard or limitation, or such an order, or to order the Administrator to perform such act or duty, as the case may be, and to apply any appropriate civil penalties under section 309(d) of this Act.	{ "pile_set_name": "FreeLaw" }
IN THE UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT United States Court of Appeals Fifth Circuit FILED September 5, 2013 No. 12-40483 Lyle W. Cayce Clerk KENNETH A. KERCHER; SUZANNE B. KERCHER, Plaintiffs - Appellants v. UNITED STATES OF AMERICA, Defendant - Appellee Appeal from the United States District Court for the Eastern District of Texas USDC No. 4:07-CV-310 _______________________________________________________________________ Cons w/ 12-20359 ALFONSO VARELA; SANDRA SANTA MARIA VARELA, Plaintiffs - Appellants v. UNITED STATES OF AMERICA, Defendant - Appellee Appeal from the United States District Court for the Southern District of Texas USDC No. 4:07-CV-343 No. 12-40483 Before SMITH, HAYNES, and GRAVES, Circuit Judges. PER CURIAM:* This appeal consolidates two cases from two district courts raising the same issues relating to federal taxation of partnerships. Kenneth and Suzanne Kercher and Alfonso and Sandra Santa Maria Varela (collectively “Taxpayers”) seek refunds of taxes and interest paid as a result of Internal Revenue Service (“IRS”) and Tax Court determinations that their partnerships’ reported losses were not allowable deductions. These cases raise similar issues as Irvine v. United States, No. 12-20523, heard by this panel on the same day and argued by the same counsel. Our resolution of these consolidated cases depends heavily on the opinion we simultaneously issue in Irvine. See Irvine v. United States, No. 12-20523, slip op. (5th Cir. September 5, 2013). As in Irvine, Taxpayers here assert that the IRS’s assessment of additional taxes fell outside the applicable statute of limitations and that the IRS erroneously applied penalty interest. We hold that the district courts lacked jurisdiction over both the statute of limitations claims and the penalty interest claims. The Kerchers separately assert that their 1985 assessment was invalid as a mere estimate of liability; we hold that this claim was not timely filed. I. Factual and Procedural Background The Kerchers and Varelas are two more of the many individuals with tax cases relating to American Agri-Corp (“AMCOR”) partnerships in the 1980s. Alfonso Varela invested as a limited partner in Agri-Venture II in 1984 and 1985, and in Coachella-85 in 1985. Kenneth Kercher invested as a limited * 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 No. 12-40483 partner in Coachella-85 in 1985.1 In broad terms, these AMCOR agricultural partnerships allowed partners to report significant losses on tax returns, because “farming expenses typically exceeded any income realized from the farming activities.” Duffie v. United States, 600 F.3d 362, 367 (5th Cir. 2010). The IRS began an investigation into AMCOR partnerships in the late 1980s “to determine whether they were impermissible tax shelters.” Id. In 1991, the IRS issued a Notice of Final Partnership Administrative Adjustments (“FPAA”) to Agri-Venture II for its 1984 and 1985 returns and to Coachella-85 for its 1985 return, proposing to disallow all of the partnerships’ reported farming expenses. Individual partners from both Agri-Venture II and Coachella-85 filed partnership-level suits contesting the FPAAs in the Tax Court. The complaining partners asserted, among other things, that the IRS could not assess additional taxes because the time period for assessment had expired. The tax matters partner for each partnership subsequently intervened in the suits. In 1999, the Agri-Venture II and Coachella-85 parties agreed to be bound by a test case, which was consolidated with others and decided as Agri- Cal Venture Associates v. Commissioner, 80 T.C.M. (CCH) 295, 2000 WL 1211147 (T.C. 2000). The Tax Court found that the IRS’s adjustments to the relevant partnerships were timely because 26 U.S.C. § 6229 allowed for extensions of the assessment periods. Id. at 15, 16. After this decision, the Agri-Venture II and Coachella-85 parties filed a Joint Status Report, stating that they had reached grounds for settlement of the partnership items, contingent on entry of stipulated decisions. The IRS subsequently moved to have stipulated decisions entered. On July 19, 2001, the Tax Court entered the decisions for both the Agri-Venture II and Coachella-85 partnership-level cases. 1 Although Suzanne Kercher and Sandra Santa Maria Varela were not partners in the AMCOR partnerships, each of them filed a joint tax return with their husbands for each of the relevant tax years, thus becoming jointly and severally liable for the tax reportable on those returns. See 26 U.S.C. § 6013(d)(3). 3 No. 12-40483 The decisions adjusted downward the amount of farming expenses that the partnerships could claim. As a result of the Tax Court’s adjustments at the partnership-level, the IRS assessed additional tax and interest against the Kerchers and the Varelas. The IRS assessed $13,895 of unpaid tax and $74,914 in interest against the Varelas for 1984 and $26,016 of unpaid tax and $121,558.88 in interest for 1985. The IRS assessed $41,683 in additional tax and $195,538.36 in interest against the Kerchers for 1985. The interest included penalty interest under 26 U.S.C § 6221(c), which provided for interest at 120% the statutory rate on “substantial underpayments attributable to tax-motivated transactions.” 26 U.S.C. § 6621(c) (1986).2 The Kerchers and the Varelas paid the additional assessments in full and filed administrative refund claims with the IRS. After their claims were denied, the Varelas filed a refund suit in the Southern District of Texas and the Kerchers filed a refund suit in the Eastern District of Texas. As in Irvine, Taxpayers assert two claims in their respective refund actions: (1) the IRS assessed the additional taxes and interest outside the applicable 26 U.S.C. § 6501 statute of limitations (“the statute of limitations claims”); and (2) the IRS erroneously assessed § 6621(c) penalty interest against them (“the penalty interest claims”). The Kerchers separately assert that their 1985 assessment was invalid. Taxpayers and the government cross-moved for summary judgment in the respective district courts on all claims. Both district courts held that they lacked jurisdiction over the statute of limitations claims under 26 U.S.C. § 7422(h). On the penalty interest claims, the district court in the Kercher’s case declined to even inquire whether the Tax Court had made any tax-motivated transaction determination, citing § 7422(h) as a jurisdictional bar. The district court in the Varela’s case also held that it lacked jurisdiction under 2 Section 6621(c) was repealed in 1989 but applies to the tax years in question. See Weiner v. United States, 389 F.3d 152, 159 (5th Cir. 2004). 4 No. 12-40483 § 7422(h) but based on different reasoning. It held that the Tax Court stipulated decisions included findings that the partnerships’ transactions were tax- motivated and § 7422(h) barred it from revisiting those determinations. The district court in the Kercher’s case also granted summary judgment to the government on the Kercher’s claim that the IRS erred in its calculation of 1985 tax owed because the claim was not timely filed. All Taxpayers timely appealed. II. Discussion This court reviews a district court’s grant of summary judgment de novo and considers the same criteria that the district court relied upon when deciding the motion. Weiner, 389 F.3d at 155-56 (citing Mongrue v. Monsanto Co., 249 F.3d 422, 428 (5th Cir. 2001)). Summary judgment is appropriate when “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). This court also reviews a district court’s determination of subject matter jurisdiction de novo. Calhoun County, Tex. v. United States, 132 F.3d 1100, 1103 (5th Cir. 1998). The parties do not assert that there are any disputed material facts on appeal. This case, like Irvine, is governed by the Tax Equity and Fiscal Responsibility Act of 1982 (“TEFRA”), generally codified at 26 U.S.C. §§ 6221-6233. See generally Weiner, 389 F.3d at 154-55 (describing TEFRA’s provisions). The relevant statutory background of TEFRA is laid out fully in Part II of our Irvine opinion. See Irvine, slip op. at 5-6. A. Statute of Limitations Claims Taxpayers’ claims that the IRS assessed the additional taxes outside the statute of limitations provided by 26 U.S.C § 6501(a) is identical to the statute of limitations claim in Irvine. For the reasons given in Part III.A of our Irvine opinion, we hold that, where both are asserted, the § 6501 limitations period applicable to an individual partner cannot be determined without reference to the asserted bases for extensions under 26 U.S.C § 6229, which is a partnership 5 No. 12-40483 item. See Irvine, slip op. at 7-11. Thus, the district courts lacked jurisdiction over the statute of limitations claims under § 7422(h). Id. We affirm the grant of summary judgment to the government on these claims. B. Penalty Interest Claims Taxpayers next assert that penalty interest was erroneously assessed for 1985.3 They raise three issues relating to their penalty interest claims: (1) that there was no tax-motivated transaction determination as required to assess penalty interest; (2) that if there was such a determination, they are not bound by it; or (3) that the Tax Court found multiple bases for disallowing the farming deductions and so this court cannot conclude that the underpayment was attributable to a tax-motivated transaction. The government contends that this court lacks jurisdiction, either because the claims for refund are attributable to partnership items under § 7422(h) or because Taxpayers failed to file a timely refund claim under 26 U.S.C. § 6230(c). Penalty interest is an affected item, made up of both partnership and non- partnership components. See Duffie, 600 F.3d at 378. The partnership component is whether the partnership’s transactions were tax motivated. See id. A claim for refund based on a partnership component of § 6621(c) interest is jurisdictionally barred under § 7422(h). As in Irvine, we first make it clear that we do have jurisdiction to determine whether there was a tax-motivated transaction determination in the partnership-level proceedings. See Irvine, slip op. at 12-13. On the merits, however, these cases are factually and legally indistinguishable from Duffie, in which this court held that there was a tax- motivated transaction determination entered in the Tax Court stipulated decisions, that unsettled partners were bound by it, and that it could not be 3 The Varelas have abandoned their penalty interest claim related to 1984. 6 No. 12-40483 revisited in the partner-level proceedings. Duffie, 600 F.3d at 368-69, 378-79. 383. In Duffie, the taxpayers similarly argued that the language of the stipulated decisions was insufficient to constitute a determination that the partnership transactions were tax-motivated. Id. at 373. The language in the Duffie stipulated decisions stated: [t]hat the adjustments to partnership income and expense for the taxable year 1984 are attributable to transactions which lacked economic substance, as described in former I.R.C. § 6621(c)(3)(A)(v), so as to result in a substantial distortion of income and expense, as described in I.R.C. § 6621(c)(3)(A)(iv), when computed under the partnership’s cash receipts and disbursements method of accounting. Id. at 369. Here, the language of the Tax Court stipulated decisions in the Agri- Venture and Coachella-85 cases is substantially identical to the language that the Duffie court found to constitute a tax-motivated transaction determination. See id. at 369, 373, 378-79, 383. Under the clear holding of Duffie, the Tax Court decisions include determinations that the partnerships’ transactions were tax- motivated. Contrary to Taxpayers’ additional arguments, this determination clearly binds them pursuant to 26 U.S.C. § 6226(c). Section 6226 makes even non- participating partners parties to the partnership-level litigation. See id. at 367 (citing § 6226(c)(1)). Further, both the Joint Status Report filed in the Tax Court summarizing the parties’ settlement terms and the IRS’s subsequent motion for entry of the stipulated decisions provided that the partners who qualify under § 6226(d)—i.e. those partners who had not individually settled and those whose assessment period remained open, see § 6226(d)—were parties to the proceeding and would be assessed additional taxes as required by the adjustments to the partnership items. Similarly, even if Taxpayers are correct that, despite § 6226, a separate res judicata analysis is required in order to bind partners to a partnership-level determination, the Taxpayers’ claims and the 7 No. 12-40483 resulting analysis is indistinguishable from those in Duffie. 600 F.3d 372-82. Duffie clearly holds that unsettled partners, like the Taxpayers here, are bound by the partnership-level determinations in the Tax Court, including the determinations that the partnerships’ transactions were tax-motivated. See id. at 382, 383-84. Taxpayers next argue that even if binding, the Tax Court’s decision does not support a penalty interest assessment because the references to lack of economic substance and substantial distortion of income are two separate reasons for disallowing the partnership item. They point to Weiner, where this court held that several independent reasons listed in an FPAA, some of which were tax-motivated transaction determinations and some of which were not, meant that the partners’ underpayment could not be attributable to a tax- motivated transaction as a matter of law. Weiner, 389 F.3d at 162-63. Here, however, under the reasoning of Duffie, both lack of economic substance and substantial distortion of income are independent tax-motivated transaction determinations. See Duffie, 600 F.3d at 373 (citing Nault v. United States, 517 F.3d 2, 5 (1st Cir. 2008); Kimball v. Comm’r of Internal Revenue, 95 T.C.M. (CCH) 1306, 2008 WL 862339 (T.C. 2008)); id. at 378. This is a different outcome than in Irvine, because the taxpayers in Irvine settled individually with the IRS and were no longer parties to the Tax Court partnership-level proceedings at the time of the stipulated decisions and were instead bound by their individual settlements. See Irvine, slip op. at 3-4, 16. Taxpayers here, however, are bound by the partnership-level stipulated decisions entered in the Tax Court. We therefore conclude that under Duffie, the Tax Court decisions included findings that the partnerships’ transactions were tax-motivated as required to impose § 6621(c) interest, the Taxpayers are bound by those decisions, and the district courts lacked jurisdiction to revisit those 8 No. 12-40483 partnership-level determinations under § 7422(h). We therefore affirm the grant of summary judgment to the government on the penalty interest claims. C. The Kerchers’ Amended Return Lastly, the Kerchers argue that their assessment notice for 1985 was invalid because it merely estimated their tax liability, or because the IRS failed to follow the proper assessment procedures by assessing via notice of computational adjustment rather than by issuing a deficiency notice. This issue arose because the Kerchers claim they filed an amended 1985 return, of which neither they nor the IRS have a complete record. Eventually, the Kerchers located the first page of the amended return, which showed a $185 increase in tax. The IRS worked backwards from the $185 adjustment to determine what the income should have been for 1985 in order to compute the additional assessment after the partnership-level proceedings. Without a complete amended return, the Kerchers argue that the information used to compute their additional tax liability was insufficient. The district court found that it lacked jurisdiction over this claim because the Kerchers’ claim for refund was not timely filed. We agree. On appeal, the Kerchers contend: (1) that the adjustment was substantive and not computational and thus regular refund procedures apply, including a two-year statute of limitations, rather than the six-month period relied on by the district court; and (2) that even if the six-month period applies, the notice they received was insufficient to trigger the running of the limitations period. The regular deadline for filing a refund claim is two years from the date of payment or three years from the date of filing of a tax return, whichever is later. 26 U.S.C. § 6511(a); see Duffie, 600 F.3d at 385. However, the six-month limitations period found in 26 U.S.C § 6230 applies where the adjustment is merely computational. See Irvine, slip op. at 14-15 (discussing computational versus substantive adjustments); Duffie, 600 F.3d at 385. The Kerchers 9 No. 12-40483 primarily dispute how the 1985 assessment was calculated, though they do not assert what the correct computation should be. On these facts, we conclude that the adjustment was computational, rather than substantive, and thus the procedures of 26 U.S.C. § 6230 govern the refund claim. We further find that the notice of computational adjustment mailed to the Kerchers was sufficient to trigger the running of the limitations period. Because the adjustment was not substantive, the IRS was not required to send a notice of deficiency. See Duffie, 600 F.3d at 385. The notice of computational adjustment sent to the Kerchers informed them of the additional amount of tax assessed and that penalty interest would be assessed. Even though the notice included one form which showed “0.00” for the amount of penalty interest, the computation of additional taxes, together with the statement that interest would be computed at the enhanced rate provided for by § 6621(c), constituted adequate notice to the Kerchers. In any event, as the analysis in Duffie implies, the Kerchers had adequate notice of the additional taxes, including penalty interest, at least by the time they paid those taxes and interest in full. See id. at 386. Thus, the six-month period began to run by October 2004 at the latest, when the Kerchers paid the additional assessment. They did not file their refund claim until May 18, 2005, which was more than six months later. We therefore affirm the district court’s grant of summary judgment to the government on this claim. III. Conclusion For the foregoing reasons, we AFFIRM the grant of summary judgment to the government on all claims. 10	{ "pile_set_name": "FreeLaw" }
Motions Granted; Appeal Reinstated; Appeal Dismissed and Memorandum Opinion filed July 26, 2012. In The Fourteenth Court of Appeals _________________________ NO. 14-12-00116-CV _________________________ SOUTHEAST TEXAS ENVIRONMENTAL, L.L.C., REGOR PROPERTIES, L.L.C., KORDEL, INC., AND JEFFREY PITSENBARGER, Appellants V. KEN BIGHAM AND TRACY HOLLISTER, Appellees On Appeal from the 80th District Court Harris County, Texas Trial Court Cause No. 2007-55020 MEMORANDUM OPINION On January 23, 2012, Ken Bigham and Tracy Hollister filed a notice of appeal from the judgment signed October 27, 2011, and the appeal was assigned to this court under our appellate number 14-12-00084-CV. On January 26, 2012, Southeast Texas Environmental, L.L.C., Regor Properties, L.L.C., Kordel, Inc., and Jeffrey Pitsenbarger filed a notice of cross-appeal from the same judgment, which was assigned to this court under our appellate number 14-12-00116-CV. On April 17, 2012, both appeals were abated for bankruptcy. On July 11, 2012, Southeast Texas Environmental, L.L.C., filed an unopposed motion in each appeal to vacate the order of abatement and reinstate. Attached to the motion is a true copy of the bankruptcy court=s order discharging Jeffrey Pitsenbarger from bankruptcy and closing the bankruptcy case. The Court grants the motions and orders the appeals reinstated and placed on the court's active docket. On July 19, 2012, the parties filed an agreed motion to consolidate the cross- appeals. The motion is granted and the court consolidates the two above-referenced causes for all purposes. The issues, records, and documents filed in cause number 14-12- 00116-CV are consolidated into cause number 14-12-00084-CV. The consolidated appeal shall proceed under appeal number 14-12-00084-CV, and appeal number 14-12- 00116-CV is hereby dismissed. See Livingston v. Arrington, No. 03-11-00197-CV, No. 03-11-00266-CV, 2011WL 2297705, *1 (Tex. App. -- Austin Jun. 10, 2011, no pet.) (mem. op). Appellate deadlines will run from the date that the record in appeal number 14-12-00084–CV is complete. PER CURIAM Panel consists of Justices Boyce, Christopher, and Jamison. 2	{ "pile_set_name": "FreeLaw" }
Filed 6/16/15 P. v. McColm 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 (Trinity) THE PEOPLE, C072960 Plaintiff and Respondent, (Super. Ct. No. 11F187) v. PATRICIA ALICE MCCOLM, Defendant and Appellant. A jury found defendant Patricia Alice McColm guilty of eight counts of knowingly procuring or offering a false instrument (a proof of service) for filing in a public office. (Pen. Code,1 § 115, subd. (a).) The trial court denied probation and sentenced defendant to an aggregate term of 3 years 4 months in state prison, consisting of 16 months (the lower term) on count one; and a consecutive 8 months each on counts three, four, and six.2 1 Further undesignated statutory references are to the Penal Code. 2 Defendant was sentenced to concurrent terms on the remaining counts. 1 Defendant appeals, contending (1) there is insufficient evidence to support her convictions; (2) the trial court erred in refusing to give a unanimity instruction; (3) defendant was not given adequate notice of the charges against her; (4) proofs of service are not “instruments” within the meaning of section 115; (5) defendant’s trial counsel was ineffective in failing to subpoena a key witness; (6) the trial court erred in denying defendant’s change of venue motion; and (7) the trial court abused its discretion in denying probation and imposing consecutive sentences. We shall conclude that none of defendant’s contentions has merit, and thus, affirm the judgment. FACTUAL AND PROCEDURAL BACKGROUND This case concerns eight proofs of service filed by defendant in three separate lawsuits pending against her in Trinity County.3 Each of the proofs of service contains a declaration, executed by Jim Dahm, which states that Dahm served the documents listed therein “by placing a true copy thereof enclosed in a sealed envelope with postage thereon fully prepaid in the United States mail at Lewiston, California.” Laurie Cooke, court services supervisor for the Trinity County Superior Court, became suspicious when she saw that the “business/residence” address listed for Dahm on the proofs of service was the same as that listed for defendant. She also observed that some of the proofs of service indicated that Dahm resided in Trinity County, while others 3 Copies of the eight proofs of service were admitted into evidence. Exhibit No. 1 (count one) had an execution and a filing date of July 1, 2011. Exhibit No. 2 (count two) had an execution date of June 21, 2011, and a filing date of July 13, 2011. Exhibit No. 3 (count three) had an execution date of July 7, 2011, and a filing date of July 13, 2011. Exhibit No. 4 (count four) had an execution date of July 13, 2011, and a filing date of July 15, 2011. Exhibit No. 5 (count five) had an execution date of July 19, 2011, and a filing date of July 21, 2011. Exhibit No. 6 (count six) had an execution date of July 19, 2011, and a filing date of July 21, 2011. Exhibit No. 7 (count seven) had an execution date of August 24, 2011, and a filing date of August 25, 2011. Exhibit No. 8 (count eight) had an execution date of September 16, 2011, and a filing date of September 20, 2011. 2 indicated that he resided in Shasta County. Concerned that the documents listed in the proofs of service may not actually have been served by the individual listed (Dahm), Cooke reported the irregularities to the marshal’s office. According to Cooke, it is important that each document filed with the court be true and correct, and that documents are served by a person not a party to the action in order to maintain the integrity of the court file. She explained that judges rely on proofs of service in making decisions, such as whether to enter a default judgment. During cross-examination, Cooke explained that at some point the court executive officer had assigned her to be defendant’s sole contact at the court. Cooke acknowledged that her dealings with defendant had “been challenging,” and that she is the complaining witness in a criminal complaint against defendant for harassment. She denied “initiat[ing] this investigation” because she “had problems” with defendant. While she had never gone back and reviewed a party’s proofs of service or referred proofs of service for investigation during her 13 years with the court, she explained that no other proofs of service had “dr[awn] a flag for me.” Dahm testified that in the spring of 2011 defendant asked him to initial a small stack of papers that she represented had something to do with Pacific Gas and Electric Company (PG&E). Defendant told him where to place his initials. Dahm initialed the documents on the same day in the same place but did not recall the exact date he did so. He did not read the documents before initialing them. Defendant asked him to mail documents but he refused because he “didn’t want to get too involved in whatever was going on . . . .” When Dahm finished initialing the documents, defendant took them. Dahm identified the initials on the eight proofs of service that form the basis of the charges against defendant as his. On another occasion, Dahm signed (as opposed to initialed) some documents for defendant. 3 DISCUSSION I Defendant’s Convictions Are Supported by Substantial Evidence Defendant contends her convictions must be reversed because there is insufficient evidence “that there were false statements in the proofs of service.” She is mistaken. “In reviewing a challenge to the sufficiency of the evidence, we do not determine the facts ourselves. Rather, we ‘examine the whole record in the light most favorable to the judgment to determine whether it discloses substantial evidence—evidence that is reasonable, credible and of solid value—such that a reasonable trier of fact could find the defendant guilty beyond a reasonable doubt.’ [Citations.] We presume in support of the judgment the existence of every fact the trier could reasonably deduce from the evidence.” (People v. Guerra (2006) 37 Cal.4th 1067, 1129.) “We do not reweigh evidence or reevaluate a witness’s credibility.” (Ibid.) Defendant was convicted of eight counts of violating section 115, subdivision (a), which states: “Every person who knowingly procures or offers any false or forged instrument to be filed, registered, or recorded in any public office within this state, which instrument, if genuine, might be filed, registered, or recorded under any law of this state or of the United States, is guilty of a felony.” Each of the proofs of service that form the basis of defendant’s convictions reflects that Dahm served the documents listed therein “by placing a true copy thereof . . . in a sealed envelope with postage thereon fully prepaid in the United States mail at Lewiston, California.” Dahm, however, testified that defendant asked him to mail the documents, but he refused. From this evidence, the jury reasonably could infer that the proofs of service were false, and that defendant knew they were false when she caused them to be filed with the court. Such evidence is sufficient to support defendant’s convictions for knowingly procuring or offering false instruments for filing in violation of section 115, subdivision (a). 4 Defendant argues that while “the declaration as worded might be taken to mean that the declarant personally placed the documents in a mail receptacle,” Code of Civil Procedure section 1013a, subdivision (3) “provides for delegation of the clerical function of actually placing the document in the mailbox.” There are at least two problems with defendant’s argument. First, there is no evidence to support a finding that Dahm delegated the task of mailing the documents listed in the proofs of service to anyone. To the contrary, the only evidence is that defendant asked him to mail the documents, and he refused. Second, while Code of Civil Procedure section 1013a, subdivision (3), relied on by defendant,4 does set forth a method for service by mail that does not require that the declarant personally place the documents in mail, the proofs of service at issue herein state that Dahm “served the within [document(s)] . . . by placing a true copy thereof . . . in the United States mail at Lewiston, California,” (italics added) which is consistent with Code of Civil Procedure section 1013a, subdivision (1),5 not subdivision (3), which 4 Code of Civil Procedure section 1013a, subdivision (3) provides that proof of service by mail may be made by the following method: “An affidavit setting forth the exact title of the document served and filed in the cause, showing (A) the name and residence or business address of the person making the service, (B) that he or she is a resident of, or employed in, the county where the mailing occurs, (C) that he or she is over the age of 18 years and not a party to the cause, (D) that he or she is readily familiar with the business’ practice for collection and processing of correspondence for mailing with the United States Postal Service, (E) that the correspondence would be deposited with the United States Postal Service that same day in the ordinary course of business, (F) the name and address of the person served as shown on the envelope, and the date and place of business where the correspondence was placed for deposit in the United States Postal Service, and (G) that the envelope was sealed and placed for collection and mailing on that date following ordinary business practices.” 5 Code of Civil Procedure section 1013a, subdivision (1) provides that proof of service by mail may be made by the following method: “An affidavit setting forth the exact title of the document served and filed in the cause, showing the name and residence or business address of the person making the service, showing that he or she is a resident of or employed in the county where the mailing occurs, that he or she is over the age of 18 years and not a party to the cause, and showing the date and place of deposit in the mail, 5 requires additional averments where the declarant does not personally place the documents in the United States mail. Finally, whether there was sufficient evidence to support the prosecution’s alternative theories -- that the proofs falsely represented Dahm’s address and the date the proofs were signed -- is of no consequence. Where, as here, the alleged inadequacy of proof is purely factual, “reversal is not required whenever a valid ground for the verdict remains, absent an affirmative indication in the record that the verdict actually did rest on the inadequate ground.” (People v. Guiton (1993) 4 Cal.4th 1116, 1129.) As detailed above, there is a valid ground for the jury’s verdict and no affirmative indication in the record that the verdict rested on either of the alternative grounds urged. II The Trial Court Did Not Err in Refusing to Give a Unanimity Instruction Defendant next contends that the trial court erred in refusing to give a unanimity instruction because “[t]he prosecution presented three separate factual foundations for each of the eight counts,” namely that “P.O. Box 113 was not Dahm’s residential or business address,” the proofs of service were signed on a date other than that indicated, and Dahm did not personally place the documents in the mail. Defendant’s contention lacks merit. “[C]ases have long held that when the evidence suggests more than one discrete crime, either the prosecution must elect among the crimes or the court must require the jury to agree on the same criminal act. [Citations.] [¶] This requirement of unanimity as to the criminal act ‘is intended to eliminate the danger that the defendant will be convicted even though there is no single offense which all the jurors agree the defendant committed.’ [Citation.]” (People v. Russo (2011) 25 Cal.4th 1124, 1132 (Russo).) the name and address of the person served as shown on the envelope, and also showing that the envelope was sealed and deposited in the mail with the postage thereon fully prepaid.” 6 “On the other hand, where the evidence shows only a single discrete crime but leaves room for disagreement as to exactly how that crime was committed or what the defendant’s precise role was, the jury need not unanimously agree on the basis or, as the cases often put it, the ‘theory’ whereby the defendant is guilty. [Citation.] The crime of burglary provides a good illustration of the difference between discrete crimes, which require a unanimity instruction, and theories of the case, which do not. Burglary requires an entry with a specified intent. (Pen. Code, § 459.) If the evidence showed two different entries with burglarious intent, for example, one of a house on Elm Street on Tuesday and another of a house on Maple Street on Wednesday, the jury would have to unanimously find the defendant guilty of at least one of those acts. If, however, the evidence showed a single entry, but possible uncertainty as to the exact burglarious intent, that uncertainty would involve only the theory of the case and not require the unanimity instruction. [Citation.]” (Russo, supra, 25 Cal.4th at pp. 1132-1133, italics added.) Here, defendant was charged with eight counts of knowingly procuring or offering a false instrument for filing in a public office. Each count involved a separate proof of service, and thus constituted a discrete crime. Consequently, the jury was required to agree that each proof of service offered was false; it was not, however, required to unanimously agree as to the manner in which it was false. Accordingly, no unanimity instruction was required. (Russo, supra, 25 Cal.4th at pp. 1132-1133.) III Defendant Was Given Adequate Notice of the Basis of the Charges Against Her Defendant next contends that the trial court erred in overruling her “demurrer based on the failure of the information to give notice of the basis for the allegations of false documents.” Again, we disagree. 7 A complaint was filed on October 31, 2011, charging defendant with, among other things, 13 counts of knowingly procuring or offering a false document (proof of service) for filing. On April 2, 2012, a preliminary hearing was held. At the hearing, David Cox, an investigator for the Trinity County District Attorney’s Office, testified that he took over an investigation initiated by the marshal’s office into whether “false documents had been filed upon the court.” In doing so, he interviewed Dahm, “the person represented on those documents” as having served as defendant’s process server. Dahm told Cox that defendant said that Dahm could help her in her struggles against PG&E if he signed some papers she had. Dahm signed a stack of papers defendant provided by placing his initials on them, although he did not know what he was signing. He signed all the documents on the same date, at his home, in defendant’s presence. He did not realize the documents were proofs of service, never agreed to act as a process server for defendant, and never served any document for her. Cox identified each of the proofs of service he reviewed with Dahm, and the trial court took judicial notice of eight proofs of service. The prosecutor argued that contrary to the information and representations set forth in the proofs of service, the evidence showed that the proofs of service were signed on the same date, and that “Mr. Dahm did not mail or serve or otherwise process anything.” The trial court held defendant to answer on eight counts of knowingly procuring or offering a false instrument for filing, and identified the filing date for each proof of service that formed the basis of each count. The following day, April 3, 2012, an information was filed charging defendant with eight counts of knowingly procuring or offering a false instrument for filing. Those counts are based on the same eight proofs of service relied on by the prosecution at the preliminary hearing. 8 Thereafter, defendant filed a demurrer pursuant to section 952,6 claiming that the information failed to give her adequate notice of the charges against her. The trial court overruled the demurrer, finding that the information, on its face, provided adequate notice of the charges against defendant. “Due process of law requires that an accused be advised of the charges against [her] so that [s]he has a reasonable opportunity to prepare and present [her] defense and not be taken by surprise by evidence offered at [her] trial.” (People v. Jones (1990) 51 Cal.3d 294, 317 (Jones).) “[N]otice is provided not only by the accusatory pleading but also by the transcript of the preliminary hearing or the grand jury proceedings. [Citations.] In addition, a ‘defendant may learn further critical details of the People’s case through demurrer to the complaint or pretrial discovery procedures.’ [Citation.]” (People v. Carrington (2009) 47 Cal.4th 145, 183-184.) Here, the preliminary hearing transcript and information provided defendant with ample notice of the charges against her. Significantly, copies of the eight proofs of service upon which the charges were based were introduced, and the prosecutor described how the proofs were false: they were not executed on the dates indicated, and the documents listed therein were not served by the declarant (Dahm). Nothing more was required. (Jones, supra, 51 Cal.3d at p. 317.) 6 Section 952 provides in pertinent part: “In charging an offense, each count shall contain, and shall be sufficient if it contains in substance, a statement that the accused has committed some public offense therein specified. Such statement may be made in ordinary and concise language without any technical averments or any allegations of matter not essential to be proved. It may be in the words of the enactment describing the offense or declaring the matter to be a public offense, or in any words sufficient to give the accused notice of the offense of which he is accused.” 9 IV A Proof of Service Constitutes an “Instrument” Within the Meaning of Section 115 Defendant next claims that “proofs of service are not ‘instruments’ within the meaning of Penal Code § 115.” She is mistaken. Section 115 “punishes offering a false instrument for filing.” (People v. Tate (1997) 55 Cal.App.4th 663, 664.) It was enacted in 1872 to protect the integrity of the judicial process and public records. (People v. Hassan (2008) 168 Cal.App.4th 1306, 1316.) While “[t]here currently is no precise, generally accepted definition of the term ‘instrument’ for purposes of Penal Code section 115” (People v. Murphy (2011) 52 Cal.4th 81, 92), a document is considered an instrument if the information contained therein “ ‘is of such a nature that the government is required or permitted by law, statute or valid regulation to act in reliance thereon . . . .’ [Citation.]” (People v. Powers (2004) 117 Cal.App.4th 291, 297.) There can be no doubt that the information contained in a proof of service is of such a nature that the government is required or permitted by law, statute, or valid regulation to act in reliance thereon. Courts rely on proofs of service for timeliness and notice. For example, as alluded to by Cooke, courts rely on proofs of service in determining whether a summons and complaint were properly served, and a default judgment properly entered. (See, e.g., Hearn v. Howard (2009) 177 Cal.App.4th 1193, 1201-1204.) A proof of service is an instrument within the meaning of section 115. V Defendant’s Trial Counsel Was Not Ineffective in Failing to Subpoena Kim Jesperson Defendant next contends that her trial counsel was ineffective in failing to subpoena Kim Jesperson as a defense witness to impeach Dahm’s testimony. We are not persuaded. 10 At the conclusion of the prosecution’s case-in-chief, defendant’s trial counsel moved to continue the trial one day in order to subpoena Jesperson, explaining that he attempted to serve Jesperson at his home the night before and although Jesperson was there, he refused to answer the door. Counsel claimed that Jesperson was a “material witness in this matter,” who “would testify that he saw Mr. Dahm signing documents on at least two occasions.” When defendant interjected, “three,” counsel noted, “[p]robably even more” as to how many times Jesperson saw Dahm sign documents. The trial court denied defendant’s motion to continue, reasoning that counsel had plenty of time to subpoena Jesperson even if he was trying to evade service. Defendant’s trial counsel responded that he had made earlier efforts to subpoena Jesperson, explaining that he had spoken numerous times to an investigator “for whom funds were ordered to help with investigation and just this exact type of thing.” The investigator had exhausted most of those funds but assured counsel that “if there was something that . . . we needed, she could do it and then we could ask for the funds at a later time.” He spoke to the investigator two days before the prosecution rested and confirmed that she had the subpoena. The following day, however, the investigator advised him that she refused to serve the subpoena because she was told by the trial court that “there was no money approved previously,” and that is why he (defendant’s trial counsel) “ended up” attempting to serve Jesperson the night before. The trial court affirmed its decision not to continue the trial, noting that Jesperson’s proffered testimony “that documents were signed twice, or three times” was marginally relevant insofar as it did not seem to impeach Dahm, who testified that “he maybe signed . . . twice. And he . . . testified that he initialed some documents, and he also testified he signed some documents.” At that point, defendant requested a Marsden hearing to express her dissatisfaction with assigned counsel. (See People v. Marsden (1970) 2 Cal.3d 118, 124.) Defendant claimed that counsel falsely told her that the investigator had been out to interview and 11 serve Jesperson with a subpoena. She also claimed that Jesperson had told her that he saw Dahm sign documents at least three times, and that Dahm had said that everything on the proofs of service was correct. The trial court denied defendant’s motion, stating that counsel “has done a heck of a job. He can’t make Jesperson come here. He can’t break his door down and subpoena him. You seem to have [an] enormous amount of contact with Jesperson and a lot of sway with him, and he hasn’t come in at your request. . . . And as we know lots of witnesses simply don’t want to be here, and he must be one of them.” On the date set for sentencing, defendant moved for a new trial and appointment of conflict counsel, arguing, in part, that there was “new evidence” refuting Dahm’s testimony. In particular, defendant’s trial counsel asserted, “Since the trial, the defendant has spoken with Mr. Jesperson and he says he was not avoiding service. Further, he informed [defendant] that he talked with Mr. Dahm about signing documents for her and Mr. Dahm assured him that everything was above board and he was doing exactly what the papers said he was.” The motion for new trial was denied. To establish ineffective assistance of counsel, a defendant must show that counsel’s representation fell below an objective standard of reasonableness under prevailing professional norms. (People v. Scott (1997) 15 Cal.4th 1188, 1211-1212.) Here, the record discloses that counsel arranged for an investigator to serve Jesperson but was advised the day before the prosecution rested that the investigator refused to serve the subpoena after learning that “there was no money approved previously.” Defendant complains that “defense counsel could have secured a fee authorization earlier but failed to do so,” and that “[t]his was beneath the fundamental standard of care for the defense counsel.” Defendant’s argument ignores counsel’s statement that he was assured by the investigator that funding for such could be obtained after the fact. It also ignores counsel’s subsequent effort to serve Jesperson himself, and Jesperson’s refusal to answer the door. With the benefit of hindsight, it is easy to argue, 12 as defendant does, that it would have been better to have begun the process of serving Jesperson sooner and/or to have submitted a fee authorization request prior thereto. Under the circumstances of this case, however, we cannot say that counsel’s choices were unreasonable. VI The Trial Court Did Not Err in Denying Defendant’s Motions to Change Venue Defendant next contends that the trial court erred in denying her motion to change venue “because of a long-running feud between [defendant] and court staff, which influenced the charging decision and the presentation of evidence, and led to a trial in a hostile forum.” Again, we are not persuaded. Prior to trial, defendant filed a motion to change venue, arguing that a fair trial in Trinity County was unlikely given the animus court personnel had previously shown toward her. The prosecutor opposed the motion, arguing defendant was “using her own really belligerent behavior” toward court staff to justify a change of venue. The trial court denied the motion, noting that it was not aware of any publicity surrounding the case, a factor it was required to consider even if not advanced by defendant; restrictions previously had been placed on defendant’s access to the courthouse due to her conduct; and there was no evidence defendant’s conduct would change or that the situation would otherwise be different in another county. “A defendant’s motion for change of venue must be granted when ‘there is a reasonable likelihood that a fair and impartial trial cannot be had in the county’ where the charges were filed. (§ 1033, subd. (a).) . . . [¶] On appeal, the defendant must show both error and prejudice, that is, ‘ “at the time of the motion it was reasonably likely that a fair trial could not be had in the county, and that it was reasonably likely that a fair trial was not had. [Citations.]” [Citation].’ ” (People v. Harris (2013) 57 Cal.4th 804, 822.) As we shall explain, defendant has failed to establish she did not in fact receive a fair and impartial trial. 13 There is no evidence in the record that suggests that the jury was aware of any animus on the part of court personnel toward defendant, much less that any such animus had any bearing on the jury’s deliberations. None of the incidents referenced by defendant were seen by the jury; indeed, all of them predated the seating of the jury in this case. Moreover, defendant fails to point to any conduct that she contends influenced the jury in this case. Defendant’s suggestion that animus lead the clerk’s office to “cut- off investigation funds,” which in turn lead to the failure to subpoena Jesperson, is specious. The record indicates that investigation funds were approved and had been exhausted by the time the defense sought to subpoena Jesperson. There is no evidence funds were cut off by the clerk’s office. Defendant failed to establish she did not receive a fair and impartial trial. Accordingly, her challenge to the court’s denial of her motion to change venue fails. VII The Trial Court Acted Within Its Discretion in Denying Probation and Imposing Consecutive Terms Finally, defendant contends the trial court abused its discretion by denying her probation and sentencing her to consecutive prison terms. She also claims separate prison terms were precluded under section 654. We disagree. The probation report acknowledged that “the defendant is eligible for a grant of probation,” but recommended probation be denied and defendant be committed to state prison based primarily on her perceived inability to comply with the conditions of probation (Cal. Rules of Court, rule 4.414(b)(4)).7 According to the report: “The defendant has fought the judicial process and demonstrated time and again her inability to follow even minimal directions of the Court. She has almost made a career of fighting judicial process and standing up for what she believes are injustices placed upon her. Her 7 Further undesignated references to rules are to the California Rules of Court. 14 disdain for the process is overwhelming. There is little belief by the Probation Department that the defendant would benefit from a grant of probation and [it is very likely] that she would make a grant of probation a long painful process for herself, Probation and the Court . . . .” The report also listed the following additional criteria affecting probation: defendant was an active participant in the filing of the false proofs of service with the court (rule 4.414(a)(6)); defendant had no prior record (rule 4.414(b)(1)); defendant was not currently on probation or parole (rule 4.414(b)(2)); defendant indicated she would be willing to comply with the terms of probation (rule 4.414(b)(3)); defendant will lose her Social Security benefits, home, and belongings if incarcerated (rule 4.414(b)(5)); and defendant showed no remorse for her actions (rule 4.414(b)(7)). As for the term of incarceration, the report recommended that defendant be committed to state prison for an aggregate term of 6 years, consisting of 16 months (the low term) on count one, and a consecutive 8 months on each of the remaining seven counts. The report listed no circumstances in aggravation (rule 4.421), and defendant’s lack of a prior record as a mitigating circumstance (rule 4.423(b)(1)). At the sentencing hearing, the prosecutor asked the trial court to impose the aggravated term of 7 years 6 months, citing the following circumstances in aggravation: defendant induced Dahm to break the law by telling him his signature would help her in her lawsuit against PG&E (rule 4.421(a)(4)); and she used planning and sophistication by asking Dahm to sign a number of proofs of service which she used over a period of time (rule 4.421(a)(8)). The trial court denied probation and sentenced defendant to 3 years 4 months in state prison, consisting of the low term of 16 months on count one, and a consecutive 8 15 months each on counts three, four, and six.8 Before doing so, the court observed that it had never encountered anyone “who has been so abusive to everybody in court,” including the judge, “whatever deputy district attorney is here, the court staff, the reporters, [and] the bailiffs,” as defendant had been. Among other things, the court recounted an incident wherein defendant had been excluded from the jury instruction conference after repeatedly yelling and screaming and thereafter pounded on the door for one-half hour until the deputy told her she would be arrested if she continued. The court also noted defendant’s inability to follow court orders and failure to cooperate with probation. The court dismissed defendant’s claim that she did not intend to break the law, explaining that defendant has a juris doctorate and that “this isn’t just somebody falling into a trap and not knowing what the law was and having somebody else sign it for another reason.” The court also agreed that defendant “does not accept any responsibility” for her actions, explaining that it was prepared to give her probation “if there was any remorse, any apology, anything that showed shat she cared about anything,” but stated that it “heard not a word of that.” “A trial court has broad discretion to determine whether a defendant is suitable for probation. [Citation.] The determination whether a case is an ‘unusual’ case is also within the sound discretion of the trial court. [Citation.] An appellant bears a heavy burden when attempting to show an abuse of such discretion. [Citation.] To establish abuse, the defendant must show that, under all the circumstances, the denial of probation was arbitrary, capricious or exceeded the bounds of reason. [Citation.]” (People v. Bradley (2012) 208 Cal.App.4th 64, 89.) In deciding whether to grant probation, the trial court should consider the various factors enumerated in rule 4.414, although it can consider other factors as well. (People v. Weaver (2007) 149 Cal.App.4th 1301, 1312- 8 Defendant was sentenced to a concurrent 16 months on each of the remaining counts. 16 1313 (Weaver), disapproved on other grounds in People v. Cook (2015) 60 Cal.4th 922, 939; rule 4.408(a).) When, as here, “a person is convicted of two or more crimes . . . the second or other subsequent judgment upon which sentence is ordered to be executed shall direct whether the terms of imprisonment or any of them to which he or she is sentenced shall run concurrently or consecutively.” (§ 669.) A trial court has discretion in deciding whether to impose consecutive or concurrent terms and in exercising such discretion should consider the factors set forth in rule 4.425. (People v. Rodriguez (2005) 130 Cal.App.4th 1257, 1262-1263.) A trial court is generally required to state reasons for denying probation and imposing a prison sentence. (Weaver, supra, 149 Cal.App.4th at p. 1313.) Unless the record shows otherwise, the trial court is deemed to have considered all relevant criteria in making its discretionary sentencing choices. (Ibid.) In determining whether the trial court abused its discretion in making a sentencing choice, we consider whether there is substantial evidence to support a finding that a particular sentencing factor was applicable. (Ibid.) Defendant claims that the trial court improperly denied probation and sentenced her to state prison “to rid the community of a source of official irritation.” Defendant’s claim is not supported in the record. In deciding to deny probation and sentence defendant to state prison, the trial court cited defendant’s inability to comply with the terms of probation and her lack of remorse. Rule 4.414 expressly lists ability to comply with reasonable terms of probation and whether the defendant is remorseful as factors that should be considered by a trial court in deciding whether to grant or deny probation. (Rule 4.414(b)(4), (7).) Based on our review of the record, we find there is sufficient evidence to support the trial court’s findings that defendant lacked the ability to comply with reasonable terms of probation and showed no remorse for her crimes. As detailed by the trial court, defendant has a long history of failing to obey court orders, was abusive 17 to court personnel throughout the trial, and refused to cooperate with probation until ordered to do so by the trial court. Moreover, in her written statement to probation, defendant failed to take any responsibility for her actions, showed no remorse, and continued to blame others for her predicament. The trial court acted well within its discretion in denying probation and sentencing defendant to state prison. Assuming we conclude, as we have, that the trial court did not abuse its discretion in denying probation and sentencing defendant to state prison, defendant contends that “[n]o reasons were suggested to support the imposition of consecutive sentences, either in the probation report or the sentencing transcript,” and consecutive sentences were not justified because “the crimes were not independent of each other.” As a preliminary matter, defendant failed to object to the imposition of consecutive sentences below, and thus, forfeited the issue on appeal. (People v. Gonzalez (2003) 31 Cal.4th 745, 755-756.) In her reply brief, defendant asserts that her claim is not that the trial court failed to give any reasons for imposing consecutive sentences but that “regardless of the purported reasons for the sentencing choices, consecutive sentencing was an abuse of discretion.” Defendant did not object on that ground below, thereby forfeiting that issue as well. (Ibid.) Even if the issue had been preserved, it lacks merit. Rule 4.425(a)(1) expressly lists “[t]he crimes and their objectives were predominantly independent” as a relevant factor in deciding whether to impose consecutive rather than concurrent sentences. Section 115, subdivision (a) prohibits knowingly procuring or offering any false document for filing in any public office. Here, the proofs of service that form the basis of counts one, three, four, and six were filed on July 1, 13, 15, and 21, 2011, respectively. In addition, the proofs of service that form the basis for counts one, three, four, and six pertains to different documents and were filed in three separate cases. These facts support a finding that counts one, three, four, and six were committed independent of one another. 18 Lastly, defendant’s claim that the execution of separate sentences for each of his convictions for offering a false instrument for filing violates section 654’s bar against double punishment fails. Ordinarily, section 654 prohibits multiple punishments for more than one offense where the offenses are committed during an “ ‘indivisible transaction’ ” having a single criminal objective. (People v. Gangemi (1993) 13 Cal.App.4th 1790, 1799.) However, a different rule applies to offering false instruments for filing or recording in violation of section 115. (Gangemi, at p. 1800.) “For purposes of prosecution under this section [115], each act of procurement or of offering a false or forged instrument to be filed, registered, or recorded shall be considered a separately punishable offense.” (§ 115, subd. (d).) “This language demonstrates an express legislative intent to exclude section 115 from the penalty limitations of section 654. Thus, the Legislature has unmistakably authorized the imposition of separate penalties for each prohibited act even though they may be part of a continuous course of conduct and have the same objective. . . . [E]ach false filing is separately punishable.” (Gangemi, at p. 1800.) DISPOSITION The judgment is affirmed. BLEASE , Acting P. J. We concur: HULL , J. HOCH , J. 19	{ "pile_set_name": "FreeLaw" }
FOR PUBLICATION UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT SEAN TILLMAN, No. 13-56624 Plaintiff, D.C. No. v. 2:09-cv-02017-VAP-RC RENEE TILLMAN, AKA Renee Chicino, OPINION Defendant-Appellant, RHEINGOLD, VALET, RHEINGOLD, SHKOLNIK & MCCARTNEY, Defendant-Appellee. Appeal from the United States District Court for the Central District of California Virginia A. Phillips, District Judge, Presiding Argued and Submitted December 9, 2015 Pasadena, California Filed June 15, 2016 2 TILLMAN V. RHEINGOLD FIRM Before: Ronald M. Gould and Marsha S. Berzon, Circuit Judges and George Caram Steeh III,* Senior District Judge. Opinion by Judge Berzon SUMMARY** Arbitration The panel reversed the district court’s dismissal of a legal malpractice case, where the parties had entered into a valid arbitration agreement but the arbitrator terminated arbitration proceedings without entering judgment because one party ran out of funds to pay for its share of the arbitration, and remanded. Renee Tillman sued her law firm; the retainer with the firm contained an arbitration clause; arbitration proceeded until Tillman ran out of funds; and the arbitration was then terminated without entry of an award or judgment. The panel held that the Federal Arbitration Act did not require dismissal where Tillman’s case “has been had in accordance with the terms of the [arbitration] agreement,” 9 U.S.C. § 3, and the district court appropriately excused * The Honorable George Caram Steeh III, Senior District Judge for the U.S. District Court for the Eastern District of Michigan, sitting by designation. ** This summary constitutes no part of the opinion of the court. It has been prepared by court staff for the convenience of the reader. TILLMAN V. RHEINGOLD FIRM 3 Tillman’s failure to pay for arbitration on the grounds of financial incapacity. The panel reversed the district court’s dismissal of Tillman’s case and remanded to the district court with instructions to allow Tillman’s case to continue in court. COUNSEL Stephen C. Johnson (argued) and Arlene M. Turinchak, Dempsey & Johnson P.C., Los Angeles, California, for Defendant-Appellant. Stephen M. Caine (argued), Frances M. O’Meara, and Holly M. Teel, Thompson Coe & O’Meara, LLP, Los Angeles, California, for Defendant-Appellee. 4 TILLMAN V. RHEINGOLD FIRM OPINION BERZON, Circuit Judge: When two parties have entered into a valid arbitration agreement, the Federal Arbitration Act requires federal courts to stay lawsuits between them until the arbitration is resolved and then to enforce any arbitration award. Our question is how a federal court is to proceed where one party runs out of funds to pay for its share of the arbitration and the arbitrator thereupon terminates the arbitration proceedings without entering an award or judgment or otherwise resolving the case. Here, Renee Tillman sued her law firm, Rheingold, Valet, Rheingold, Shkolnik & McCartney (“the firm” or “the Rheingold firm”). Tillman’s retainer with the firm contained an arbitration clause, which the firm invoked. Arbitration proceeded for a time, until Tillman ran out of funds. The arbitration was then terminated. The parties disagree about what should now happen to Tillman’s federal court case against the Rheingold firm. Our conclusion is that Tillman’s case “has been had in accordance with the terms of the agreement,” so it is no longer appropriate to stay the proceedings below. See 9 U.S.C. § 3; Lifescan, Inc. v. Premier Diabetic Servs., Inc., 363 F.3d 1010, 1012–13 (9th Cir. 2004). Further, the district court appropriately excused Tillman’s failure to pay for arbitration on the grounds of financial incapacity. Finally, under these circumstances, we hold, the FAA does not require dismissal of Tillman’s case; instead, Tillman’s case should go forward in federal court. We therefore remand the case with instructions to allow it to proceed. TILLMAN V. RHEINGOLD FIRM 5 I Renee Tillman’s husband, Tim Tillman (“Tim”), died in a truck accident in 2002. Tillman hired the Rheingold firm to represent her. The firm filed a wrongful death suit on Tillman’s behalf against the manufacturer of the truck Tim was driving. Tillman won the suit and was awarded about eight million dollars, an amount later reduced on appeal. Tillman and the Rheingold firm were then sued by Sean Tillman (“Sean”), Tim’s son from a prior marriage. Sean asserted that Tillman and the firm wrongfully excluded him from the suit against the truck manufacturer, alleging they were negligent and had violated a California requirement that an heir suing in a wrongful death action join all other known heirs. Sean’s claims against the Rheingold firm were dismissed but his action against Tillman proceeded. Tillman, in turn, filed a complaint against the firm, alleging it had committed malpractice by not including Sean in the wrongful death action and by failing to advise her of the rights of Tim’s other heirs. In response to Tillman’s complaint, the firm moved to compel arbitration, citing the arbitration clause in its retainer agreement with Tillman. Tillman filed her response to the motion late. As a result, the district court declined to consider her response. The court granted the firm’s motion to compel arbitration and stayed the federal court proceedings between Tillman and the firm. Tillman and the firm began arbitration in New York under the rules of the American Arbitration Association (“AAA”), as provided in the retainer agreement. During the arbitration, Tillman objected to several aspects of the arbitration as 6 TILLMAN V. RHEINGOLD FIRM unnecessarily increasing costs. In particular, she challenged the need for the arbitration to include a “case-within-a-case” adjudication, in which the arbitrator would rehear witnesses and evidence presented in the underlying wrongful death action. The arbitrator nonetheless scheduled additional dates for a case-within-a-case adjudication. Tillman borrowed money, and her counsel in the arbitration agreed to front certain costs. Nevertheless, Tillman was ultimately unable to provide the required deposit of $18,562.50 the AAA asked for as a condition of continuing the proceedings. The AAA then “inquir[ed] as to whether [the firm was] willing to cover th[e] deposit,” but the firm declined. Tillman then requested that the AAA require the firm to pay the deposits going forward, under AAA rules authorizing interim relief. The arbitrator responded that it did “not intend to decide the motion for interim relief” until the deposits had been paid; set a deadline for Tillman to submit the funds; and ultimately terminated the arbitration due to the missing deposits. The Rheingold firm returned to the district court. It moved for the court to lift its stay and to dismiss Tillman’s complaint pursuant to Federal Rule of Civil Procedure 41(b), which provides that, “[i]f the plaintiff fails to prosecute or to comply with these rules or a court order, a defendant may move to dismiss the action or any claim against it.” According to the firm, Tillman’s failure to pay her deposits was a violation of the court’s order compelling arbitration. Tillman objected, arguing that she had fully participated in the arbitration and done “everything in her power” to proceed before the arbitrator. Tillman also argued that the firm was TILLMAN V. RHEINGOLD FIRM 7 at fault as well for the arbitration’s termination, because, under the AAA rules, it could have paid to continue the arbitration but chose not to. Before ruling on the Rule 41(b) motion, the district court allowed Tillman to submit evidence confirming that her financial situation precluded her from paying her share of the arbitration fees. Tillman did so, submitting a declaration with various exhibits describing how the money from the initial settlement had been exhausted — through a combination of legal fees, payment of outstanding debts, educational payments and set-asides for several family members, vehicle purchases, home improvements, investment losses, and gambling losses. After reviewing the evidence, the district court found Tillman was indeed “unable to pay for her share of arbitration.” It therefore declined to dismiss her case under Rule 41(b) and instructed the parties to further brief the issue of how to proceed given Tillman’s inability to pay the arbitrator’s fees. The district court ultimately dismissed the case. According to the district court, because the AAA’s rules required Tillman and the firm to bear the costs of arbitration equally and allowed the arbitrator to suspend the proceedings, the Federal Arbitration Act (FAA), 9 U.S.C. § 1 et seq., deprived the district court of authority to hear “the claims that would have been subject to the arbitration agreement,” and dismissal was required. Tillman timely appealed. 8 TILLMAN V. RHEINGOLD FIRM II “[C]ourts must rigorously enforce arbitration agreements according to their terms.” Am. Express Co. v. Italian Colors Rest., 133 S. Ct. 2304, 2309 (2013) (citing Dean Witter Reynolds Inc. v. Byrd, 470 U.S. 213, 221 (1985)) (internal quotation marks removed). When a party petitions a court to compel arbitration under the FAA, “the district court’s role is limited to determining whether a valid arbitration agreement exists and, if so, whether the agreement encompasses the dispute at issue. If the answer is yes to both questions, the court must enforce the agreement.” Lifescan, 363 F.3d at 1012. Here, there is no dispute that both these conditions were initially met, and no challenge to the original referral of the dispute to arbitration. Although the validity of the arbitration agreement between Tillman and the Rheingold firm is not at issue, it is not immediately clear what it means to “enforce the agreement,” id., in the context before us. The firm seeks to lift the district court’s stay of proceedings and to dismiss Tillman’s complaint. We agree that it is appropriate to lift the stay but conclude that Tillman’s case should be allowed to proceed. A. The Rheingold firm, invoking the FAA, originally sought to stay the district court proceedings and compel arbitration. The FAA requires courts to stay court proceedings on issues subject to arbitration “until such arbitration has been had in accordance with the terms of the agreement.” 9 U.S.C. § 3. TILLMAN V. RHEINGOLD FIRM 9 But what does it mean for an arbitration to “ha[ve] been had in accordance with the terms of the agreement”? Id. Here, arbitration was “had” in the sense that the parties engaged in arbitration until the arbitrator terminated those proceedings. The arbitration was terminated because Tillman could no longer pay the arbitrator’s fee; the arbitrator did not enter any sort of award or judgment. The parties disagree about whether, in these circumstances, her arbitration “has been had in accordance with the terms of the agreement.” Our decision in Lifescan goes a long way toward resolving this dispute. See 363 F.3d at 1010. In Lifescan, two parties, Premier and Lifescan, submitted a dispute to arbitration under the AAA’s rules. Id. at 1011. Shortly before the final arbitration hearings, Premier advised that it was not able to pay its share of the arbitrators’ costs. Id. The arbitrators gave Lifescan the option of paying Premier’s share. Id. When Lifescan declined, the AAA suspended the proceedings. Id. Lifescan petitioned the district court to compel arbitration under the FAA. Id. On appeal, we directed that the petition be dismissed. Id. at 1013. As the AAA’s rules allowed the arbitrators to suspend the proceedings when Lifescan declined to pay Premier’s costs, we concluded, “the arbitration ha[d] proceeded pursuant to the parties’ agreement.” Id. Lifescan left matters there. It did not treat the suspension of arbitration proceedings as an award in favor of one party or the other, as no award had issued. Id. The Tenth Circuit recently reached a similar conclusion in Pre-Paid Legal Services, Inc. v. Cahill, 786 F.3d 1287, 1293–94 (10th Cir. 2015), cert denied 136 S. Ct. 373 (Oct. 19, 2015). Cahill also concerned a scenario in which an 10 TILLMAN V. RHEINGOLD FIRM arbitration under the AAA’s rules was terminated for non- payment of the AAA’s fees. Id. at 1294. The Tenth Circuit held that because the AAA’s rules allowed for such a termination of the proceedings, “the arbitration ‘ha[d] been had in accordance with the terms of the agreement,’ 9 U.S.C. § 3, removing the § 3 requirement for the district court to stay the proceedings.” Id. We conclude that Tillman’s arbitration likewise “has been had in accordance with the terms of the [arbitration] agreement.” The retainer agreement between Tillman and the Rheingold firm explicitly incorporated the AAA’s rules. While the numbering of some of the AAA’s rules has changed since Lifescan, all the relevant provisions remain the same. See Am. Arbitration Ass’n, Commercial Arbitration Rules and Mediation Procedures (2013). Current Rule R-53 allows the AAA to prescribe fees and gives it the sole discretion to reduce fees in the event of hardship. Id. at 29. Rule R-56 allows the AAA to require the parties to pay deposits in advance in “such sums of money as it deems necessary.” Id. at 30. Rule R-57 states that in the event of nonpayment, the arbitrator may “limit[] a party’s ability to assert or pursue their claim,” and “may order the suspension of the arbitration.” Id. at 30–31. If such suspension has occurred and the parties still fail to make full deposits within a designated time period, the arbitrator “may terminate the proceedings.” Id. at 31. All these steps were followed here, including terminating the proceedings without issuance of an award. Because the arbitration had “been had” pursuant to the agreement between the firm and Tillman, the district properly lifted the stay. See 9 U.S.C. § 3; Lifescan, 363 F.3d at 1013; Cahill, 786 F.3d at 1294. TILLMAN V. RHEINGOLD FIRM 11 B. We review a district court’s decision under Rule 41(b) for abuse of discretion. The district court did not abuse its discretion in refusing to dismiss under Rule 41(b). Generally, the “harsh penalty” of dismissal “should only be imposed in extreme circumstances.” Ferdik v. Bonzelet, 963 F.2d 1258, 1260 (9th Cir. 1992). Here, the district court reviewed Tillman’s submissions and concluded that she did lack the resources to make the requested arbitration deposit. This case, a malpractice suit involving an arbitration agreement, is relatively run-of-the-mill apart from Tillman’s inability to pay. Whether Tillman “fail[ed] . . . to comply with . . . [the] court order” to arbitrate is debatable, as she was willing to arbitrate but unable to pay for it, and the Rheingold firm could have fronted the costs but did not. In any event, any failure to comply was, for the same reasons, not culpable and so does not merit a harsh penalty, particularly given “the public policy favoring disposition of cases on their merits,” Pagtalunan v. Galaza, 291 F.3d 639, 642 (9th Cir. 2002). We therefore affirm the district court’s Rule 41(b) ruling. C. The district court did err, however, in dismissing Tillman’s complaint on other grounds. To justify its dismissal, the court cited Lifescan as holding that it “lack[ed] the power to allow further litigation.” Far from requiring dismissal of Tillman’s case, Lifescan points in the opposite direction. 12 TILLMAN V. RHEINGOLD FIRM Lifescan held that, despite Premier’s non-payment of its share of arbitration fees, there was “no basis for an order requiring Premier to pay the fees, or compelling arbitration.” 363 F.3d at 1013. Lifescan does not discuss how the underlying dispute should be disposed of, but it never indicates that the action should be dismissed. See id. Lifescan’s only conclusion was that compelling arbitration would be inappropriate. This silence is telling. Nothing in the FAA requires dismissal of the litigation under Lifescan’s circumstances or the present ones. The FAA provides that district courts must stay pending proceedings on issues subject to arbitration until such arbitration has been had, 9 U.S.C. § 3; compel arbitration in the event of a party’s “failure, neglect, or refusal” to arbitrate, 9 U.S.C. § 4; and enforce a valid award resulting from an arbitration, 9 U.S.C. §§ 9–11. As discussed above, there is no longer a basis for a stay. There is also no arbitration award to enforce. And the Rheingold firm has not moved anew to compel arbitration. Even if it had, Lifescan held that there was no “failure, neglect, or refusal” to arbitrate where one party had been unable to pay and the AAA suspended the proceedings when the other party was unwilling to front the bill. 363 F.3d at 1011–13. Here, the district court expressly found that Tillman lacked the resources to deposit the arbitration fee. The Rheingold firm has not pointed to any section of the FAA compelling dismissal of Tillman’s claim under these circumstances. None is apparent from the statute’s plain text or our case law interpreting it. In the absence of a statutory directive, the district court erred in dismissing Tillman’s case. TILLMAN V. RHEINGOLD FIRM 13 “District courts have an obligation and a duty to decide cases properly before them,” absent a firm basis for declining to do so. See S. Cal. Edison Co. v. Lynch, 307 F.3d 794, 805 (9th Cir. 2002) (quoting City of Tucson v. U.S. West Commc’ns, Inc., 284 F.3d 1128, 1132 (9th Cir. 2002) (internal quotation marks omitted). We are mindful, of course, of the “liberal federal policy favoring arbitration” reflected in the FAA. AT&T Mobility LLC v. Concepcion, 563 U.S. 333, 339 (2011) (quoting Moses H. Cone Mem’l Hosp. v. Mercury Constr. Corp., 460 U.S. 1, 24 (1983)) (internal quotation marks omitted). Our ruling today, which allows Tillman’s case against the Rheingold firm to proceed despite the existence of an arbitration agreement between the two, does not run afoul of that policy. Our decision that Tillman’s case may proceed does not mean that parties may refuse to arbitrate by choosing not to pay for arbitration. If Tillman had refused to pay for arbitration despite having the capacity to do so, the district court probably could still have sought to compel arbitration under the FAA’s provision allowing such an order in the event of a party’s “failure, neglect, or refusal” to arbitrate. 9 U.S.C. § 4.1 Or, in that context, the court could, and most probably 1 A question may arise in such circumstances as to whether an arbitration “has been had in accordance with the terms of the agreement,” 9 U.S.C. § 3, when it has been terminated due to the nonpayment of a party who has the ability to pay but simply chooses not to. Even if such an arbitration has been terminated in accordance with the rules governing the arbitration, as Tillman’s arbitration was here, it may be contrary to “the structure and purpose of the FAA” to allow a party to an arbitration agreement to benefit from their intentional noncompliance with an arbitrator’s rules. Sink v. Aden Enters., 352 F.3d 1197, 1200 (9th Cir. 2003). But because Tillman was unable to pay, gave notice of her inability to pay during arbitration, and “made genuine efforts to make 14 TILLMAN V. RHEINGOLD FIRM should, dismiss Tillman’s complaint under Fed. R. Civ. P. 41(b), for failure to comply with the order to arbitrate despite its ability to do so. Here, however, the district court found that Tillman had exhausted her funds and was “unable to pay for her share of arbitration.” As a result, the district court excused Tillman’s lack of compliance with its order compelling arbitration under 9 U.S.C. § 4. As Tillman’s arbitration terminated before the merits were reached or any award issued, allowing her case to proceed in district court is the only way her claims will be adjudicated. The outcome would likely be different if Tillman were the one seeking a stay of the district court proceedings, as that would frustrate the Rheingold firm’s attempts to have the case heard in either the court or the arbitral forum. See Sink, 352 F.3d at 1201. But Tillman had not sought a stay, so 9 U.S.C. § 3’s reference to a party “in default” does not apply. See 9 U.S.C. § 3 (providing for a stay of federal court proceedings pending arbitration so long as “the applicant for the stay is not in default in proceeding with such arbitration.”). As Lifescan noted, there is “no totally satisfactory solution” to a party’s nonpayment of its share of arbitration fees. 363 F.3d at 1013. But parties have the right under the FAA to choose the rules under which their arbitration will be conducted. See Italian Colors Rest., 133 S. Ct. at 2309. Here, Tillman and the firm chose rules that allowed the alternate payment arrangements,” id. at 1199, we need not decide how to construe 9 U.S.C. §§ 3 and 4 in the event of a party’s willful nonpayment of an arbitrator’s fees. TILLMAN V. RHEINGOLD FIRM 15 arbitrator to terminate their arbitration in the event of non- payment without any resulting award or judgment. Tillman cooperated with those rules as long as she was able to. No section of the FAA compelled the district court to dismiss her case once the arbitration had concluded in accordance with the agreed upon rules governing but without resolution. We therefore remand to the district court with instructions to allow Tillman’s case to continue in court. REVERSED and REMANDED.	{ "pile_set_name": "FreeLaw" }
255 F.2d 721 Clifford L. DUKE, Jr., Louis Glenn Ballard and Vic Buono,v.UNITED STATES of America, Appellee. No. 15146. United States Court of Appeals Ninth Circuit. January 7, 1958. Writ of Certiorari Denied June 16, 1958. See 78 S.Ct. 1361. COPYRIGHT MATERIAL OMITTED George W. Rutherford, La Jolla, Cal., Clinton F. Jones, Escondido, Cal., Barton C. Sheela, Jr., Richard L. Vaughn, Edgar G. Langford, Thomas Whelan, San Diego, Cal., for appellants. Laughlin E. Waters, U. S. Atty., Manley J. Bowler, Thomas Ludlow, Jr., Harry D. Steward, Asst. U. S. Attys., Los Angeles, Cal., for appellee. Before STEPHENS, Chief Judge, LEMMON and FEE, Circuit Judges. JAMES ALGER FEE, Circuit Judge. 1 This is a criminal case in which there was laid bare a tremendous traffic in the smuggling of psittacine birds into the United States from the Republic of Mexico. Irrespective of the merits, it is a sordid story of intrigue, double-dealing and feuds among the participants, with treacherous interludes and escapades. 2 Parrots, parakeets and, broadly speaking, any bird with a hooked beak are denominated psittacine birds. There is a quarantine against the importation of such fowl into the United States.1 However, there appears to be a vast importation of these birds here. It is not the custom in this commerce to pay any duties on psittacines. Indeed, it would appear from the record that there is no known instance of such an impost having been paid. 3 In general, the participants in this traffic were as malodorous as the commerce therein itself. The testimony was furnished by co-laborers in the vineyard, who were characterized by one of the defendants as: 4 "John W. Hadzima, a twice convicted smuggler, Nicholas A. Spicuzza, a twice convicted smuggler, George Todd, a twice convicted smuggler, Raymond Curtis, convicted smuggler, Robert Helm, convicted smuggler, Mary Asconi, admitted handler of psittacine birds known by her to have been smuggled." 5 The indictment was in ten counts. Three separate conspiracies were charged (in Counts I, IV and VII). Five counts charged smuggling (II, V, VIII, IX and X). Two counts charged certain defendants with knowingly receiving, concealing and facilitating the transportation and concealment of certain birds after illegal importation (III and VI). 6 Appellants Duke, Ballard and Buono, having been convicted on certain counts by a jury, appeal. 7 All of these appellants raise the point that the convictions under 18 U.S.C.A. § 545,2 the general smuggling statute for felony, cannot stand because the Surgeon General, under authority of 42 U.S.C.A. § 264, passed a health and safety regulation forbidding, with minor exceptions, importation of psittacine birds. See 42 C.F.R. § 71.152(b). This regulation carries a penalty for a misdemeanor. 42 U.S.C.A. § 271(a). The same argument is applied to 18 U.S.C.A. §§ 42 and 43. But these contentions have no validity. Appellants may have committed two crimes, one a misdemeanor and the other a felony. See Steiner v. United States, 9 Cir., 229 F.2d 745, certiorari denied sub nom Hadzima v. U. S., 351 U.S. 953, 76 S.Ct. 847, 100 L.Ed. 1476. If there is any conflict between the statute and the regulation, the former prevails. See Murray v. United States, 9 Cir., 217 F.2d 583; Callahan v. United States, 285 U.S. 515, 52 S.Ct. 454, 76 L.Ed. 914. The case of Berra v. United States, 351 U.S. 131, 76 S.Ct. 685, 100 L.Ed. 1013, has no pertinency upon this point. Where different proof is required for each offense, a single act or transaction may violate more than one criminal statute. United States v. Beacon Brass Co., 344 U.S. 43, 73 S.Ct. 77, 97 L.Ed. 61; United States v. Noveck, 273 U.S. 202, 47 S.Ct. 341, 71 L.Ed. 610. 8 It is argued that psittacine birds are not merchandise which should have been invoiced under the customs laws. But this has no validity. Steiner v. United States, supra. In that connection, it is urged that the substantive counts are defective because they were insufficient to charge that appellants violated 18 U.S.C.A. § 545, by failing to comply with 19 U.S.C.A. §§ 1461 and 1484. This latter point has no apparent connection with any count except those relating to receiving and facilitating. See Babb v. United States, 5 Cir., 218 F.2d 538. As to the latter counts, the indictment there contained the statement that the importation was contrary to 19 U.S. C.A. ch. 4, and particularly to §§ 1461 and 1481 thereof. 9 Duke, who is a lawyer, complains of his representation before the court. Under the circumstances, the complaint is of very little moment. He seems to have hoped, by complicating the situation, he could gain some advantage at the trial. Since that failed, he now attempts to use the situation he created as error to obtain reversal upon appeal. There is nothing more revolting in the American courts than the attempt of lawyers, as criminals, to use the guaranties set up for fair trial as technicalities to shield them from just conviction. The record in this case shows clearly that Duke is guilty. He has been convicted by a jury. Nevertheless, if the constitutional rights of Duke were violated, this Court must give him redress. 10 There are two principles which are founded on reason and authority in this field to which this Court gives full weight. First, an accused has an unquestioned right to defend himself.3 Second, an accused should never have counsel not of his choice forced upon him.4 This Court has never failed to recognize either of these fundamental rights. 11 As we review the record as to representation by counsel or in propria persona, it is clear that the confusion was caused by Duke and Duke alone. He acquiesced and consented to limitations on his right to represent himself. He attempted to repudiate the limitations subsequently, but that circumstance cannot vitiate his previous waiver. If defendant were an ignorant and untutored person, there might be some force to his present claim. But Duke is a trial lawyer of long experience. 12 Duke, at the hearing for arraignment and plea before a judge other than the one who tried the case, asked permission to proceed in propria persona for preliminary motions pertaining to the attack on the indictment. He represented to the judge at the time that counsel would appear for him at trial. Permission was granted. 13 Afterward, in apparent pursuance of this suggestion, Duke presented a Mr. Fitzgerald, a competent attorney, to the judge who eventually tried the case. However, at an informal colloquy in chambers, Duke indicated he wished Mr. Fitzgerald as an associate. The trial judge agreed that another lawyer should be in the case and suggested that Duke should not testify and also attempt to argue the case to the jury. Whatever may be thought of the legal basis of this idea, Duke fully agreed with the underlying practice and consistently held to that position throughout the trial.5 The thesis of the trial court was apparently that Duke, if acting as client and lawyer, would be involved emotionally and prejudice his own case.6 After a great deal of discussion, in which Duke, Fitzgerald and the trial judge participated, all were in agreement. 14 In open court, before the jury had been impaneled, Duke moved for the entry of Mr. Fitzgerald as co-counsel, and thus sought to impose a dilemma upon the trial judge. But the judge made his position clear that Duke could appear in proper person subject to limitations to which Duke had agreed, or he could appear through counsel. As a result, Mr. Fitzgerald, who was of Duke's own choosing, entered the case as counsel for Duke. At the insistence of Duke, however, the latter was allowed, by the discretion of the court, certain personal participation such as examination of witnesses and making and arguing motions to the court. Parenthetically, the trial court was extremely fair in permitting Duke all the privileges agreed upon. Nothing was said about an opening address to the jury by Duke. Both Mr. Fitzgerald and Duke apparently agreed that the participation of Duke would be so limited, for the trial judge had made it abundantly clear that Mr. Fitzgerald was to have full control of the cause. When he accepted Fitzgerald as counsel subject to his personal participation only as permitted by the court, Duke made an election of record in open court. 15 After the jury was empaneled and before taking of testimony, the court again sought to clarify the status of Duke, so that there would be no confusion about his participation. It was pointed out that the obligation of Duke was to appear in propria persona or be represented by counsel, but that he did not have a right to a hybrid of the two.7 However, the court reiterated its decision to permit Duke limited participation with his counsel. The court reserved all arguments of fact and the opening statement to the jury on behalf of Duke to Mr. Fitzgerald. 16 At this point, Duke for the first time insisted upon the right to make an opening statement, but the court ruled that Mr. Fitzgerald was to make this presentation. Duke claimed Mr. Fitzgerald was unprepared. The court then called attention to the fact that Duke had been under indictment for months and had made no appropriate attempts to settle the question of representation until the time of trial. 17 The trial judge offered to recess the case until Mr. Fitzgerald could prepare himself with the assistance of Duke to make the opening statement. The court said: 18 "I know academically you are educated, Mr. Fitzgerald, but as to the facts, if you are not well prepared, you proceed last and I will see there is ample recess so that Mr. Duke can write it out if he wants." 19 Duke refused this offer. 20 Duke then moved to have Mr. Fitzgerald released from the case. The court denied this motion.8 Mr. Whelan, attorney for Ballard, made the opening statement for Duke, with the consent of the latter. 21 Duke was not denied the right to represent himself. Counsel was not forced upon him. Mr. Fitzgerald was counsel of Duke's own choosing. Duke consented to have Mr. Fitzgerald represent him, with limitations upon his own presentation. The court was not in error in refusing to permit Duke to repudiate his agreement to the arrangement. Any right Duke had was waived by his conduct and his informed consent. 22 Although there are expressions which, taken out of context, might indicate that Duke wished to try the case in propria persona, he never at any time unqualifiedly took that position. His duty was to have refused to proceed otherwise if he wished to raise the point here. 23 Although Duke now attempts himself to escape therefrom, the trial of the case was permeated by his charge that the prosecution was the result of plot or conspiracy by certain public officials, in conjunction with organized labor, to frame Duke on the charges in the instant case. If it can be believed that these statements and innuendoes were not made in the first instance by Duke himself, at any rate these were specifically adopted9 by him while on trial. Among those supposed to be assisting in the combination to frame him were included a federal judge who tried a companion case and members of the staff of the United States Attorney conducting previous prosecutions as well as the prosecution of the instant case. The trial court may well have taken the whole situation into consideration in his rulings upon the question of representation. There have been examples of split representation whereby a lawyer defendant was enabled to use associate counsel as a shield while he engaged in offensive tactics himself. We see no reason why the trial court should have been compelled to allow Duke to turn this proceeding into a Roman holiday, with the other defendants and government witnesses and the public officials as the victims. The trial court was perfectly correct in maintaining firm control of his courtroom and of the proceedings therein. In this aspect of the cause at the outset of the trial, the trial court was not bound to allow Duke to use his position as defendant as a launching ground for missiles, even if as a lawyer he believed his best defense was the familiar one of trying the prosecutors and witnesses for the prosecution. 24 This situation was thereafter further complicated when the supposed "special defense" of conspiracy of the officials and others fell flat.10 Mr. Fitzgerald repudiated it. Now Duke assigns as error the trial of the issue by attempting to place the blame upon Mr. Fitzgerald, who, he said, misunderstood the defense on account of lack of preparation and unfamiliarity with the case. Duke also assigns as error that the trial court permitted extraneous issues to seep into the case to his prejudice. The record has been carefully reviewed. This Court finds Duke, and Duke alone, responsible for the introduction and trial of these charges and that he attempted to shift the burden thereof only when it was obvious the introduction was deleterious and not helpful to his cause. 25 There are other matters of no merit raised by Duke. (1) He complains that the witness, Sankary, was put on the stand by the government and asked only whether he had been subpoenaed by the defense. The defense did not call the witness. (2) Duke was asked an impeaching question upon cross-examination. It was not followed up by testimony supporting the statement which he purportedly made. Sankary was one of the persons purported to have heard the statement by Duke. No objection was made at any time during the trial to either of these matters. There was no error. 26 Duke assigns as error certain argument by the prosecution calling attention to the absence of evidence to support the "special defense" of conspiracy by government officials and others. There was no objection at the time. When Duke referred to the matter at a subsequent time, the court ruled Duke had invited the comment. This was correct. 27 Exception was taken generally to the fact that the court commented upon the charge that certain government witnesses had in effect conspired together to tell false stories. The general effect of the comment was that the situation of the witnesses should be considered, especially as to what access and lack of access they had. It was said persons in the penitentiary are under some restraint and some degree of unavailability to others, but there are extents of availability. The jury were told to analyze the testimony and to determine whether they could believe all or any part of it. Some of the witnesses had been in the penitentiary. 28 It is obvious that the court was directing, as it had a right to do, the jury to analyze the testimony and calling attention to some special circumstances in relation to the situation of these witnesses. The judge likewise admonished the jury that they were the judges of the facts and the credibility of the witnesses and they had the right to disregard entirely any comment of his. 29 The power of a trial judge in the federal court to comment fairly to the jury, if he leave to them the final decision and the power to disregard his remarks, has never been denied. The only question ever raised is whether he has abused his authority. The trial judge here commented fairly and regarded the appropriate restrictions. 30 The court admitted the record of a telephone conversation held during the progress of the trial between Duke and Buono, both defendants on one side, the government witness Hadzima, on the other. The recording was made by Duke. The trial record is confused, but Duke is apparently now claiming that he was prevented from cross-examining Hadzima as to the conversation. He also claims the conversation tended to prove a conspiracy against him. The ruling of the court gave him everything to which he was entitled, since the jury had the whole record and were entitled to judge thereby the credibility of this witness. The conversation did not tend to establish a conspiracy to convict Duke. 31 There was no error in the refusal of the court to permit a witness to testify that during a certain period Duke was heavily in debt and had to borrow from the bank to meet current operating expenses. The purpose was to rebut testimony of Hadzima that he had paid Duke during this same period fabulous sums of money. 32 Likewise, the court refused to allow Duke to show that Helm, a government witness, had, immediately prior to trial, engaged in collateral illegal conduct for which he had not been prosecuted. This was not error. 33 The trial court permitted Hadzima, a government witness, to have advice of private counsel while testifying. It must be said this is an extremely dangerous practice. There is some authority that it is within the discretion of the trial court. But, if a witness must have such advice during his testimony, the government had better not call him. The witness, upon advice of counsel, claimed the protection of the Fifth Amendment on certain questions, upon one of which the court ruled that he was so entitled. Upon another question, the court ruled that certain phases were within the scope of his previous testimony, and required the witness to answer, but limited the question in other respects. Upon advice of his attorney, Hadzima corrected a former statement and revealed that he had been told that the prosecution of a different case would be dropped if Hadzima testified for the government in the instant case. This admission supported the theory of Duke and redounded to his benefit. He thus elicited, upon cross-examination, an interest or motive which might indicate bias after the witness had flatly denied such a fact on direct. 34 We entirely disapprove of the practice of any witness in a criminal case, especially a government witness, receiving secret advice from anyone while he is on the stand. It is a destructive precedent. But, in the present case, it obviously did not harm Duke, but helped him. The error was not prejudicial. 35 The trial court refused to give a requested instruction of defendant to the effect that, if it were within the power of the government to produce stronger and more satisfactory evidence, and they failed to do so, the inference is that such evidence would be unfavorable to the government. The request was improper. A correct instruction would apply to either party, even in a criminal case. The balance of the requested instruction, that the burden of proof was upon the government, was adequately covered and completely clear from the instruction given by the court. 36 The court gave an instruction at length to the effect that the uncorroborated testimony of an accomplice or co-conspirator is to be scrutinized and accepted with caution. Duke contends that the court should have instructed that "a conviction may not be had solely on the testimony of accomplices unless such testimony be corroborated by other evidence." This latter is not the rule in the federal courts. There was no error in the instructions given. 37 Defendant Ballard was denied a bill of particulars because it was not clear who was actually to smuggle the birds into the United States and in what manner Ballard participated in the conspiracy and the various acts, and because it is not alleged who did the various physical acts. It is plain this was an attempt to have the evidence of the government disclosed before trial. The matter was in the discretion of the trial court, and this discretion was not abused. 38 It is likewise in the sound discretion of the trial judge to say whether defendants should be tried separately or together. Ballard was charged by only three of the ten counts. He claims he was prejudiced by denial of a motion for severance. The record shows there was nothing improper in trying all defendants together. 39 The court gave an instruction on alibi, at the request of counsel for Ballard. If there were any just criticism of the original instruction of the court as to alibi, it was thus corrected. 40 Evidence was admitted in rebuttal, which Ballard says was admissible in chief. This indicates there was no error. The trial court has discretion as to order of proof, and the evidence was admittedly competent. No prejudice was shown. 41 Buono raises the point that the counts of the indictment, I, IV and VII, charge three separate conspiracies. Several persons, including some defendants, were accused of membership in each of these conspiracies, each of which related to the traffic in psittacine birds. Buono was charged by counts IV and VII, respectively, of membership in two of such conspiracies. He was acquitted on count IV, but convicted on count VII. He claims he was a victim of a mass trial. He further contends that there was only one conspiracy and that it is error to break the charge into three. 42 Kotteakos v. United States, 328 U.S. 750, 66 S.Ct. 1239, 90 L.Ed. 1557, is an example of the mass trial of several conspiracies under an indictment charging only one. As such, the convictions were set aside. But it needs no argument to prove that the reverse of this situation is unfair. If there were a conspiracy which continued over a long period of time and different persons were involved in different phases, it would not be improper to charge those in one phase with one conspiracy and use a separate count to charge all those in a different phase as co-conspirators in such different phase. 43 Instead of militating against the conclusion that this procedure was fair as to Buono, his acquittal on one conspiracy count and his conviction on another support it. For, if the indictment had been in only one count for one conspiracy. Buono would have been convicted of participation in the whole integrated conspiracy. That conviction would illustrate the danger of a mass trial. But here the jury discriminated. He was found guilty of that phase in which the jury found he participated and acquitted of conspiracy on other phases. Even though Buono could demonstrate that, considered from the standpoint of pure logic, splitting into several counts an integrated conspiracy was technically incorrect, he did not suffer injustice thereby. 44 The record as a whole demonstrates beyond possibility of doubt the guilt of each defendant of the crimes of which the jury convicted him. Furthermore, there is demonstrated a widespread, persistent and defiant combination to treat the criminal law as if it did not exist. Repeated convictions did not deter these felons. Humanitarian release on bail was capitalized by effecting new combinations and commission of other crimes. The record demonstrates that easy release on bail of hardened malefactors after conviction breeds contempt of law and sardonic patronage of judges. 45 The trial as a whole was fair and impartial. Each defendant was demonstrably guilty. No record in any criminal case is so perfect that an astute lawyer cannot suggest possibility of error. Any error in this record was not prejudicial to any defendant. As has been shown, there was none of consequence. 46 Affirmed. Notes: 1 See 42 C.F.R. § 71.152(b), promulgated under authority of 42 U.S.C.A. § 264 2 "Smuggling goods into the United States "Whoever knowingly and willfully, with intent to defraud the United States, smuggles, or clandestinely introduces into the United States any merchandise which should have been invoiced, or makes out or passes, or attempts to pass, through the customhouse any false, forged, or fraudulent invoice, or other document or paper; or "Whoever fraudulently or knowingly imports or brings into the United States, any merchandise contrary to law, or receives, conceals, buys, sells, or in any manner facilitates the transportation, concealment, or sale of such merchandise after importation, knowing the same to have been imported or brought into the United States contrary to law — "Shall be fined not more than $5,000 or imprisoned not more than two years, or both. "Proof of defendant's possession of such goods, unless explained to the satisfaction of the jury, shall be deemed evidence sufficient to authorize conviction for violation of this section. "Merchandise introduced into the United States in violation of this section shall be forfeited to the United States." 18 U.S.C.A. § 545. 3 "In all courts of the United States the parties may plead and conduct their own cases personally or by counsel * * ." 28 U.S.C.A. § 1654 4 "The Constitution does not force a lawyer upon a defendant." Adams v. United States, 317 U.S. 269, 279, 63 S. Ct. 236, 242, 87 L.Ed. 268 5 At one point he said: I didn't * * — please of the court, I had never intended to argue the case. I realize the rule, that having testified myself, I wouldn't be permitted to argue nor would it be wise for me to argue my own testimony or any of the testimony. And I realize my own emotional feelings in the case." 6 The judge expressed himself as follows: "The Court: Now, he being necessarily involved as a man would, emotionally in the problem, it is just not a good thing for him to be participating as an attorney in the courtroom. You know, Mr. Fitzgerald, how many times a lawyer will say or do things which will militate very strongly against him when he acts under the stress of emotion. "Mr. Fitzgerald: Yes. "The Court: How much more he is apt to do that if he is both client and lawyer? I don't think it is practical." 7 This is a correct statement of the law. See Shelton v. United States, 5 Cir., 205 F.2d 806, 812-813. "The cases cited * * * stress * * the right of an accused to act for himself and his right to have a lawyer assigned in his behalf. * * * Obviously, however, those rights cannot be both exercised at the same time." United States v. Mitchell, 2 Cir., 137 F.2d 1006, 1010 8 It should be noted all these proceedings were out of the presence of the jury 9 "The Court: * * * `* * * But the reason those witnesses came forth and told what, to our defense contention is a trumped up story against us, is that a certain group of persons, Sankary, Hannah, Vader, Steward, some labor unions operating in this county, the Customs Service, the United States Attorneys office' — I don't know if I have enumerated them all — `have combined together' — and I think Judge Solomon — `to induce these witnesses, who have testified for the government, to tell a false story or series of false stories in order to wreak the private vengeance of Vader, Sankary, Steward, and so on, against these particular defendants.' "Now, I don't think it is claimed that Judge Solomon was personally out to get these particular defendants, but Judge Solomon is said to be going along with the plan and scheme, and the labor unions, Mr. Sankary, Mr. Steward, Mr. Vader, who are out to establish a trumped up false case against these defendants. * * * "Now, is that right, Mr. Duke?" "Mr. Duke: That is our defense, your Honor. That is my defense. However, I think your Honor has included persons in your enumeration of people, that were a part of the scheme, that I do not contend that were a part of it." (Emphasis supplied.) It is unnecessary to prolong the excerpt to show that Duke claims to have modified the position as to certain of the persons named and suggested that the Federal Bureau of Investigation was misled and the United States Attorney was unwittingly a party. 10 The caution of the trial judge in the first colloguy, that, if Duke personally participated to a great extent, he might prejudice his case, seems to have been fulfilled."	{ "pile_set_name": "FreeLaw" }
850 F.2d 689Unpublished Disposition 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.Paul G. EVANS, Appellant,James D. Brown, Plaintiff,v.Louis D. ROGERS; George T. Rogers, Defendants-Appellees,andVernon Walter Heath, Jr.; Wheatley Trucking, Inc., aMaryland Corporation, Defendants. No. 87-3647. United States Court of Appeals, Fourth Circuit. Submitted: May 19, 1988.Decided: June 16, 1988. Paul G. Evans, appellant pro se. George T. Rogers, appellee pro se. Before K.K. HALL, SPROUSE and WILKINSON, Circuit Judges. PER CURIAM: 1 Paul G. Evans appeals from the district court's order imposing sanctions against him, personally, pursuant to 28 U.S.C. Sec. 1927. Our review of the record and the district court's opinion discloses that the district court did not abuse its discretion in imposing sanctions in this case. LaRouche v. National Broadcasting Co., Inc., 780 F.2d 1134, 1140 (4th Cir.), cert. denied, 107 S.Ct. 79 (1986). 2 We dispense with oral argument because the dispositive issues recently have been decided authoritatively. 3 AFFIRMED.	{ "pile_set_name": "FreeLaw" }
151 F.2d 102 (1945) RICHARDSON v. COMMISSIONER OF INTERNAL REVENUE. No. 154. Circuit Court of Appeals, Second Circuit. August 17, 1945. Writ of Certiorari Denied January 28, 1946. 103 Erwin N. Griswold, of Cambridge, Mass., and Holt S. McKinney, of New York City, for petitioners. Samuel O. Clark, Jr., Asst. Atty. Gen., and Sewall Key, Helen R. Carloss, and Carlton Fox, Sp. Assts. to Atty. Gen., for respondent. Before EVANS and CHASE, Circuit Judges, and HINCKS, District Judge. Writ of Certiorari Denied January 28, 1946. See 66 S.Ct. 490. HINCKS, District Judge. This is a petition to review a decision of the Tax Court determining certain questions relating to gift taxes assessed against the petitioner. On December 20, 1935, the petitioner created five trusts, one for each of his five children. In the corpus of each of these trusts was included stock of Vick Chemical, Inc., the aggregate in all of the five corpora being 12,487 shares, and stock of Piedmont Financial Company, Inc., the aggregate in all of the five corpora being 5,100 shares. The petition here questions the values of these two stocks as found by the Tax Court: it also questions the conclusion of the Tax Court that the petitioner was liable for gift taxes on account of the accumulated income of five trusts created by the petitioner's wife in 1932. The Vick Stock There was undisputed evidence that on the critical date, December 20, 1935, 400 shares of this stock were sold on the New York Stock Exchange, where it had long been listed, at a high of 43 and a low of 42¼. These prices were not out of line with its price on the said Exchange throughout the year straddling the critical date. These prices ranged from a low of 35 in June, 1935, to a high of 46 in February, 1936. For this same year the average monthly volume of sales on the Exchange was about 4,000 shares. There was no evidence of sales exceeding 400 shares on a single day. For the six months preceding the critical date, the price trend was moderately upward. The valuation placed upon the stock by the Tax Court was $42.625 per share. It cannot be said that this valuation was made without evidence. The bare facts just above recited constitute sufficient evidential support for the valuation. The only open question is whether, as the petitioner maintains, the Tax Court in reaching the indicated result erroneously failed to use correct standards of valuation applicable to the situation which it found. The chief complaint of the petitioner is that the Tax Court failed to take into account the "blockage" factor: he insists that a block upwards of 12,000 shares which in the aggregate was included in the five gift transfers had a unit value less than $42.625 which was the price at which a small lot of 400 shares was sold on the critical date. The courts, to be sure, take cognizance of the obvious economic fact that a market in which sales of small lots can be accomplished at a specified price may lack the body and breadth necessary to support sales of large blocks of securities at the same unit price. Helvering v. Safe Deposit & Trust Co. of Baltimore, 4 Cir., 95 F.2d 806; Helvering v. Kimberly, 4 Cir., 97 F.2d 433; Page v. Howell, 5 Cir., 116 F.2d 158. However, the tribunal charged with the task of valuation will not lightly deviate from evidence based on actual sales; only when it is convinced by persuasive evidence that at the critical time the market was such that it could not absorb sales in the larger volume at the price level obtaining for small lots will it conclude that such prices must be discounted in arriving at the fair market value of large blocks. Cf. Gamble v. Commissioner of Internal Revenue, 6 Cir., 101 F.2d 565; Mott v. Commissioner of Internal Revenue, 6 Cir., 139 F.2d 317. Moreover, in cases in which evidence as to actual sale prices is the dominant or even the exclusive factor relied upon in making a valuation, nothing in the law or common sense requires the trier to attempt to ascertain what the property in question would have fetched at a sale through a sales effort begun and ended on the critical date. Surely the fair market value of, say, a residence is not measured by the price which the owner could have obtained for it on the very day upon which he first decided to sell. Rather, the measure there, as in the case here, is what "a skillful broker could within a reasonable period have realized." Bull v. Smith, 2 Cir., 119 F.2d 490; Mott v. Commissioner, supra. Here, to be sure, there was some evidence from the plaintiff's experts that the contemporary market would not have supported sales for the large, aggregate block involved in these transfers at the Stock Exchange prices for small lots. But 104 there was no evidence from such sources that even the large block in question could not have been disposed of at $42.625 within a period reasonably commensurate with the volume of the transaction by brokers or other financial agents competent to accomplish such a hypothetical transaction. In any event, the opinion of the Tax Court makes it plain that such evidence as it had on this issue failed to persuade it that the block in question could not have been sold at $42.625 within a reasonable period after the critical date. This conclusion, although expressed as an "opinion", was essentially a finding in the negative of a subordinate fact. Surely the Tax Court, if not convinced by the evidence, was not obliged to accept the conclusions expressed by the petitioner's experts. Bull v. Smith, supra. Nor are we at liberty to disturb the ultimate finding merely because an independent appraisal of the evidence might have led us to some different finding of the underlying facts and factors. Several of the Commissioner's witnesses were asked for their opinions as to value based upon the hypothesis that on the critical date the demand to buy as well as the offers to sell had been increased by 12,000 shares. We agree with petitioner's counsel that opinions based on that hypothesis were not relevant. The issue here was as to the existence of such a demand, or a potential demand which could be aroused by appropriate sales activities. It contributes nothing to a solution to assume the fact which is the main point at issue. On the other hand, the testimony of the petitioner's experts did not carry far. They were not asked what one skilled in the liquidation of large blocks would have been expected to realize from a liquidation begun on the critical date (when the prior price trend was upward) and prosecuted by the most appropriate methods over the period believed reasonably necessary to accomplish a liquidation on the most favorable terms. Instead, their only expressed opinions were based upon the results to be expected from a liquidation to be accomplished in the last ten days of December either on the New York Stock Exchange in the ordinary routine or through private sales off the Exchange without any specified activity to develop the market for the block. Such testimony even if accepted at its face value might well have failed to convince the trier that the entire block could not have been liquidated at the value found. We conclude that the petitioner's dissatisfaction with the result reached is plainly traceable to deficiencies in the proofs, not to the application of erroneous or superseded standards. The Piedmont Stock The Piedmont Financial Company, a Delaware corporation organized in 1925, is an investment company with 100,000 shares of stock outstanding, all of which are owned by thirty-three members of the petitioner's family. Of these shares, 5,100 were included in the five trusts involved in this case. The securities and other assets of the Piedmont portfolio as of the critical date had a fair market value aggregating $9,808,599.27. There was evidence of accrued income taxes against the corporation and expenses totalling $257,699.20. The resulting difference, $9,550,900, if divided by the number of shares outstanding, would give a quotient of $95.509. This amount was found by the Tax Court to represent not less than the fair market value of the stock. In its findings the Tax Court included data as to the dividend payments and earnings of the Piedmont stock over a substantial portion of the corporate life. It also included in its findings the corporate balance sheet for the years 1934 to 1936 inclusive. In its opinion the court said that it had considered all this data as also the opinion evidence taken at the trial, and had given due weight "to those factors relevant and pertinent to the determination of the fair market value of this stock," but it failed to specify which factors had been actually applied as having weight and relevance. The petitioner insists that the result reached demonstrates that the valuation was actually based not on the fair market value of Piedmont stock but on the asset value of the corporation as determined by the market value of the numerous securities and other assets included in its portfolio on the critical date. And the petitioner feels especially aggrieved in that the Tax Court appears to have given no weight whatever to the undisputed testimony of his expert witnesses that the sale of the minority block of the Piedmont stock on or about the critical date would have yielded, if sold, an amount substantially less than the value as found. Here again the petitioner disclaims any quarrel with the findings of fact which have been made; its contention is rather that the court erroneously 105 adopted as a criterion of value some theory of intrinsic value as advanced by the respondent's experts rather than that authorized by the applicable regulations. There is, indeed, substantial color to petitioner's contention. At the hearing the petitioner's experts gave testimony, to us at least highly convincing, to the effect that outsiders could not have been found to buy a minority interest in this family corporation except at a substantial discount from a price based on the asset value of the portfolio. Their conclusion was corroborated by other testimony showing that in respect of a group of comparable corporations there was a substantial differential between the price which could actually be obtained for their stock and a price based on their asset value, a condition that found some support also in the testimony of the respondent's experts as well. This testimony the Commissioner sought to combat not by opinion evidence to a contrary effect but by expert testimony tending to show that for a minority stock interest in a closely held corporation such as this the applicable criterion of value is not the price at which it could be sold but rather its benefit measured in some other way to its owner. Moreover, in the opinion it was noted that although the portfolio had a definitely ascertainable market value "there was no market for the stock of Piedmont Financial and it was obvious that it is not the purpose of the Richardson family to sell it on the open market." The opinion of the Tax Judge continued: "If the arguments of petitioner were to prevail, any cohesive family owning securities having a market value readily ascertainable from trading on the open public market could organize a family holding corporation, transfer to such corporation the securities which it owns, and then deal with the stock of the family corporation on the basis that it has by reason of petitioner's arguments a market value of only approximately half of the market value of the securities owned by such a corporation, thus cutting in two gift taxes and estate taxes which would otherwise be payable on the transfer of the securities themselves. "We cannot agree. Closely-held stock of a family holding company which was never sold on the open market and was never intended by the organizers of the corporation to be sold, but was intended to be held by members of the family to evidence their respective beneficial rights in securities which were bought and sold by the corporation and which were dealt in on the open market, can only be valued in any real or practical way by primarily considering the value of the securities owned by the corporation. Any other approach would, in our opinion, be futile." The trial judge made no express ruling upon the applicability of the conflicting views as to the proper standard which had been pressed vigorously at the hearing: he found only that the stock had "a fair market value of not less than $95.509 per share." Nor was there any finding that within a reasonable time through the most suitable commercial channels the stock could have been sold at such a figure. To me, at least, the findings and opinion when read together strongly suggest that the valuation adopted was based upon some such theory as was enunciated by the respondent's experts whereby the controlling criterion of value for stock such as this was taken to be not its fair market value as provided in the applicable regulations of the Treasury Department but rather some notion of "intrinsic" value. If so, the holding was erroneous. Commissioner of Internal Revenue v. McCann, 2 Cir., 146 F.2d 385; Weber v. Rasquin, 2 Cir., 101 F.2d 62; Laird v. Commissioner of Internal Revenue, 3 Cir., 85 F.2d 598; Worcester County Trust Co. v. Commissioner of Internal Revenue, 1 Cir., 134 F.2d 578. Cf. Guggenheim v. Helvering, 2 Cir., 117 F.2d 469, at page 473. Feeling that there is at least a substantial doubt as to whether the conclusion is based upon proper standards, I should favor a remand so that the Tax Court might have opportunity to correct the error if one was made or to remove the doubt which exists as to the standard which was actually applied. Commissioner v. McCann, supra. My brothers, however, feel that the finding that the "fair market value" was not less than $95.509 per share sufficiently attests the use of a proper standard and that this court should affirm the valuation as made. The 1932 Trusts In May, 1932, the petitioner's wife executed and delivered five trust instruments. The petitioner was named as the trustee in each. Each named one of the petitioner's five children as a beneficiary; in other respects the trust instruments were identical. Each provided that the trustee should collect the income and until the beneficiary should become twenty-one years of age apply the income or so much thereof as the 106 trustee should deem advisable to the maintenance, education, or benefit of the beneficiary, any of the income remaining to be "accumulated" and reinvested for the benefit of the beneficiary, with a further provision for the payment over of such accumulations together with the income therefrom to the beneficiary on attaining the age of thirty-five years. Each trust also provided that upon the death of the beneficiary the trust should terminate and the trustee should thereupon pay over "all the principal, and any accumulations not theretofore paid over, to the descendants of the beneficiaries, etc., etc." It was further provided that "all stock dividends, and dividends or cash payments in liquidation received by the trustee" if derived from principal should be added to principal and that all stock dividends and dividends and cash payments in liquidation derived from the accumulations of income for the benefit of the beneficiary be added to such accumulations. And most important of all for present purposes each trust instrument provided that the petitioner during his lifetime "may cancel and terminate this agreement by an instrument in writing * * * and upon such termination and cancellation the said H. Smith Richardson shall be entitled to receive the corpus of the trust fund absolutely, and free from all trusts." In each of these trusts income accrued on the principal which the petitioner treated as accumulations for the benefit of the several beneficiaries as follows: In 1933 in the aggregate amount of $121,125; in 1934 $270,937.50, and in 1935 $106,675. The petitioner paid out for the benefit of the beneficiaries only $150 in 1934, and $900 in 1935. The income thus accumulated for the years 1933-1935 the Commissioner contended constituted gifts from the petitioner to the beneficiaries, and his action including these amounts in a deficiency assessment of the petitioner's gift tax was sustained by the Tax Court. This ruling is now presented for our review. On December 30, 1941, the petitioner exercised the power conferred upon him under the trust instruments to "cancel and terminate this agreement" and thereupon took over to his personal use the 42,500 shares of Piedmont Financial Company stock which had constituted the original "principal" of the trust set up by the instruments above described. The record, or so much as has been presented to us, does not clearly disclose what eventually happened to the accumulations of income which the petitioner had set aside in the years 1933 to 1935 for the benefit of the beneficiaries. We assume, however, since the argument of both parties proceeds on that basis, that after setting such income aside as "accumulations" for the beneficiaries the petitioner continued to hold the same as trustee under the trust instruments at least until December 30, 1941. What happened to these accumulations thereafter is immaterial for present purposes. On these facts, the writer is at a loss to understand how these accumulations of income set aside for the beneficiaries in the years 1933-1935 can constitute a completed gift by the petitioner accomplished in 1935, or indeed in any earlier year. Under the trust instruments, the original corpus of each trust is throughout referred to as "principal". Income withheld from the beneficiaries and set aside for their benefit was referred to throughout as "accumulated income" or as "accumulations" and a distinction was made between income accruing from accumulations and income accruing from principal. Against this background, I construe the provision of the trust instruments which gave the petitioner power upon cancellation and termination "to receive the corpus of the trust fund absolutely and free from all trusts", to use the word "corpus" to include the so-called accumulations as well as the original principal. The petitioner's right of capture extended to both alike. In Richardson v. Commissioner of Internal Revenue, 2 Cir., 121 F.2d 1, this court held with respect to these very trust instruments that the power of cancellation conferred upon this petitioner had the effect of making the income accruing under the trusts taxable against the petitioner for income tax purposes. Since, as I think, the accumulations of income as well as the original principal of the trust were subject to this same power, merely to set aside the accumulations for the time being for the benefit of the beneficiaries would not operate to complete a gift. If, as held in the case cited, the effect of the power of cancellation granted to the petitioner was to constitute him the owner of the corpus for income tax purposes, in my view it was equally effective to constitute him owner for purposes of the gift tax and as long as his right of capture remained alive no taxable gift occurred. The Commissioner cannot have it both ways at once. Cf. Rosenman v. United States, 323 U.S. 658, at page 663, *107 65 S.Ct. 536. But even under this view, of course, the payments of $900 and $150 were properly subject to the tax. My brothers, however, agree with the Tax Court in its holding that when the petitioner, as trustee, set aside income received by him as "accumulations" for the beneficiaries, he thereby made completed gifts and that his non-exercise of his power by cancellation to reduce such income to his own use free from trust was not a release within the intendment of Section 452(c) of the Revenue Act of 1942, 26 U.S.C.A. Int. Rev.Acts. In other words, they are of the opinion that the failure of the trustee to revoke the trusts resulted in fact in gifts of the annual income to the children, subject to the gift tax; also, such failure to revoke was not a tax exempt release of a power of appointment. Accordingly, the judgment in all respects will be affirmed.	{ "pile_set_name": "FreeLaw" }
443 F.Supp.2d 815 (2006) Michael Wayne HALL, Petitioner, v. Nathaniel QUARTERMAN, Director, Texas Department of Criminal Justice, Correctional Institutions Division, Respondent. No. 4:06-CV-436-A. United States District Court, N.D. Texas, Fort Worth Division. August 3, 2006. 816 817 David Patrick Sheldon, Law Office of David P. Sheldon, Washington, DC, Greg Westfall, Westfall Platt & Cutrer, Fort Worth, TX, for Petitioner. Thomas M. Jones, Office of the Texas Attorney General, Austin, TX, for Respondent. MEMORANDUM OPINION and ORDER MCBRYDE, District Judge. Came on for consideration the petition for writ of habeas corpus ("petition")[1] filed by Michael Wayne Hall ("Hall"), an inmate in the Texas Department of Criminal Justice, Institutional Division, who is under sentence of death. The court has determined that the petition should be denied for the reasons set forth in this memorandum opinion and order. I. Procedural History On February 23, 2000, in the 371st District Court of Tarrant County, Texas, Hall was convicted and sentenced to death for the murder of nineteen-year old Amy Robinson. On January 16, 2002, the Texas Court of Criminal Appeals affirmed his conviction and sentence. See Hall v. State, 67 S.W.3d 870 (Tex.Crim.App.2002), vacated, 537 U.S. 802, 123 S.Ct. 70, 154 L.Ed.2d 4 (2002). On October 7, 2002, the United States Supreme Court granted Hall's petition for writ of certiorari, reversed the judgment, and remanded the case for further consideration in light of Atkins v. Virginia, 536 U.S. 304, 122 S.Ct. 2242, 153 L.Ed.2d 335 (2002), wherein the Supreme Court held that the execution of a mentally retarded criminal was a cruel and unusual punishment under the Eighth Amendment to the Constitution. See Hall v. Texas, 537 U.S. 802, 123 S.Ct. 70, 154 L.Ed.2d 4 (2002). While Hall's direct appeal was pending, on January 17, 2002, Hall also applied for habeas relief in the trial court. In response 818 to Atkins, the trial court ordered an evidentiary hearing by affidavit to determine the issue of Hall's mental retardation. After receiving affidavits from Hall and the state, and also taking into account the evidence offered at trial as to Hall's mental capacity, the court concluded that Hall did not clearly fall within the definition of mental retardation. Alternatively, relying on Atkins, the court held that even if Hall fell within the upper range of mild retardation, he did not fall within the range of offenders about whom there is a national consensus regarding the exemption from the death penalty. See Atkins, 536 U.S. at 317, 122 S.Ct. 2242. On February 26, 2003, the Texas Court of Criminal Appeals too denied habeas relief. See Ex Parte Hall No. 53,668-01 (Tex.Crim.App. Feb. 26, 2003). Later, on May 5, 2005, on direct appeal, the Texas Court of Criminal Appeals adopted the trial court's findings and conclusions from the state-habeas proceedings on Hall's mental capacity. See Hall v. State, 160 S.W.3d 24, 38-39 (Tex.Crim. App.2004). In an abundance of caution, however, the Court of Criminal Appeals also reviewed the evidence, both from the direct appeal and the state-habeas proceedings, and independently found that the trial court's conclusion that Hall is not mentally retarded to be supported by the record. Id. at 40. On June 27, 2005, the Supreme Court denied Hall's petition for certiorari. See Hall v. Texas, ___ U.S. ___, 125 S.Ct. 2962, 162 L.Ed.2d 891 (2005). On June 20, 2006, Hall filed the instant petition for federal habeas corpus relief. II. Underlying Facts The Court of Criminal Appeals well summarized the facts of the crime as follows: Eighteen-year-old Hall and his friend Robert Neville decided to kill someone because Hall was angry that he had a "sucky-ass" life. They started searching for the right victim and preparing for their crime by obtaining rifles, pellet guns, a crossbow, and ammunition. After much looking, Hall and Neville finally chose nineteen-year-old Amy Robinson, a friend and former coworker, because she trusted them and they "didn't have to put bruises on her to get her in the car." The evidence also revealed that Amy had a genetic disorder that made her small and mentally and physically slow. She stood four feet five inches tall and had the mental capacity of a third or fourth grader. On February 15, 1998, Hall and Neville went looking for Amy in order to carry out their murderous plan. They checked her schedule at the Kroger grocery store and then lay in wait for her to ride by on her bicycle on her way to work. When the pair saw Amy, they coaxed her into the car, promising to drop her at work after they circled around in the country. As Neville drove, Amy complained that she did not want to be late for work. Neville then pretended to have a flat tire and pulled the car over on a dirt road by a remote field. Hall and Neville got out of the car and walked into the field carrying their weapons while an unsuspecting Amy waited in the car listening to the radio. At some point, Hall persuaded Amy to get out of the car, telling her she needed to go talk to Neville near a tree. As Amy walked toward Neville, he fired a crossbow at her several times. Neville missed each shot, but Amy became angry when the last arrow grazed her hair. When Amy started walking back to the car, Hall shot her in the back of her leg with his 819 pellet gun. Hall and Neville laughed while Amy cried in pain. Meanwhile, Neville returned to the car and got his .22 caliber rifle. When Hall managed to maneuver Amy back into the field, Neville shot her in the chest. Hall then shot her in the chest "three or four or six times" with the pellet gun. Amy fell to the ground making loud noises and shaking. Hall then stood over her and stared for five to ten minutes. The pair worried that someone would hear Amy, so Neville shot her in the head, killing her instantly. Hall and Neville then left Amy and her bicycle in an area where they would not be easily discovered. A few days later, they returned to the scene. Neville fired shots into Amy's dead body, and Hall took keys and money from her pocket. When Amy's family and coworkers realized she was missing, a massive search ensued. More than two weeks later, authorities focused on Hall and Neville. Fearing they would be caught, the pair fled Arlington but were soon arrested when they attempted to cross the border into Mexico. The authorities found Amy's body on the day of the arrest. Hall, 67 S.W.3d at 873. At the sentencing phase of trial, the jurors heard additional evidence about the crime: [O]nce Hall and Neville had made their plans and chosen their mentally challenged victim, they taunted and tormented her, reveling in her confusion and agony. Finally, Hall boasted in his media interview that he was the one who got Amy to trust him, and she would have escaped had Neville tried to commit the offense without him. Indeed, Hall told the media that he had no remorse for Amy's death. When asked how he felt about Amy dying the way she did, Hall snickered, "Well, I wouldn't want to be in her place. She had to take a lot of pain." After his arrest, Hall told law enforcement and the media that he and Neville had wanted to become serial killers and kill one to five people a week. They also wanted to become white supremacists and kill African Americans. Hall 67 S.W.3d at 874. As far as mitigating circumstances to a death sentence, the jury heard considerable evidence from Hall as to his alleged mental retardation. The jurors, however, determined that the evidence did not warrant a life sentence. III. Scope of Review On April 24, 1996, the President signed into law the Antiterrorism and Effective Death Penalty Act of 1996, Pub.L. No. 104-132, 110 Stat. 1214 ("the AEDPA"). Under the AEDPA, the ability of federal courts to grant habeas relief to state prisoners is narrowly circumscribed: (d) An application for a writ of habeas corpus on behalf of a person in custody pursuant to the judgment of a State court shall not be granted with respect to any claim that was adjudicated on the merits in State court proceedings unless the adjudication of the claim (1) resulted in a decision that was contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court of the United States; or (2) resulted in a decision that was based on an unreasonable determination of the facts in light of the evidence presented in the State court proceeding. 820 AEDPA, § 104(3) (codified at 28 U.S.C. § 2254(d)). The AEDPA further provides: (e)(1) In a proceeding instituted by an application for a writ of habeas corpus by a person in custody pursuant to the judgment of a State court, a determination of a factual issue made by a State court shall be presumed to be correct. The applicant shall have the burden of rebutting the presumption of correctness by clear and convincing evidence. AEDPA § 104(4) (codified at 28 U.S.C. § 2254(e)(1)). Having reviewed the petition, the response, the record, and applicable authorities, the court finds that none of Hall's grounds has merit. IV. Grounds for Relief Hall urges seven grounds in support of his petition. They are as follows: Ground One: Hall is ineligible for execution under Atkins v. Virginia, 536 U.S. 304, 122 S.Ct. 2242, 153 L.Ed.2d 335 (2002), because he is mentally retarded. Ground Two: Because Hall was denied a jury determination of mental retardation, his death sentence should be set aside under Atkins v. Virginia, 536 U.S. 304, 122 S.Ct. 2242, 153 L.Ed.2d 335 (2002). Ground Three: The indictment under which Hall was charged was constitutionally inadequate, and the mitigation instructions were unconstitutional by failing properly to quantify the burden of proof on mitigation. Ground Four: The use at trial of Hall's televised media interview violated his privilege against self-incrimination, his right to counsel, and due-process rights. Ground Five: The Texas-death-penalty statute is unconstitutional. Ground Six: The evidence regarding Hall's future dangerousness was legally insufficient. Ground Seven: The mitigation instructions were unconstitutional, because, inter alia, they allowed the jurors to consider the aggravating aspects of otherwise mitigating evidence. V. Discussion A. Ground One: Atkins In Atkins v. Virginia, 536 U.S. 304, 122 S.Ct. 2242, 153 L.Ed.2d 335 (2002), the Supreme Court banned the execution of the mentally retarded. However, "[n]ot all people who claim to be mentally retarded will be so impaired as to fall within the range of mentally retarded offenders about whom there is a national consensus." Atkins, 536 U.S. at 317, 122 S.Ct. 2242. The obvious challengewhich the Supreme Court, in turn, left to the states to meet is how to determine which offenders falls within the range of mental retardation sufficient to render a sentence of death unconstitutionally cruel. Id. Here, the State of Texas used a three-part definition borrowed from the American Association of Mental Retardation[2] and generally codified in Section 591.003 of the Texas Health and Safety Code. Specifically, under this definition, "a person is mentally retarded if he has three characteristics: (1) `significantly subaverage general intellectual functioning' (an IQ of about 70 or below); (2) `related limitations 821 in adaptive [behavior],' and (3) onset of the above two characteristics before age eighteen."[3]Hall, 160 S.W.3d at 36 (citation omitted). Although the first and third elements are relatively self-explanatory, the second element is perhaps not. Adaptive behavior generally refers to "the effectiveness with or degree to which a person meets the standards of personal independence and social responsibility of the person's age and cultural group." See Tex. Health & Safety Code. Ann. § 591.003(1) (Vernon 2003). To state a successful claim under Atkins, all three prongs of the definition must be met. See In Re Salazar, 443 F.3d 430, 432 (5th Cir.2006). And it is Hall's burden, by a preponderance of the evidence, to show that each prong is met. Hall, 160 S.W.3d at 38. In his petition, Hall thoroughly reviews the voluminous evidence as to his mental capacity. See Hall's Pet. for Writ of Habeas Corpus ("Hall's Pet.") at 1-33. The State does the same in its response. See Resp't's Resp. at 4-21. There is no reason for the court to do so again here. Briefly, however, in support of his claim of mental retardation, Hall offered the testimony of three psychologists, his mother, his brother, his trial attorneys, two private investigators, four teachers and a fellow deathrow inmate. See, e.g., Hall, 160 S.W.3d at 40. The State controverted Hall's claim with the testimony of a psychologist, five prison guards, a waitress, Hall's former work supervisor, a former co-worker, and a police detective. Id. In addition, there was, inter alia, evidence submitted as to Hall's school records and his videotaped interview with the press following his arrest. Id. There were also, of course, the circumstances surrounding the crime itself. The specific evidence was that Hall had an IQ of between 67 to 74. The evidence of adaptive behavior conflicted. On the one hand, Hall's witnesses claimed that Hall could not tell time from a traditional clock, had trouble following instructions, could not grasp money concepts, had limited social skills, and suffered from a lifelong record of poor academic performance. On the other hand, the State put on evidence indicating that Hall was average in a number of adaptive behaviors, including the use of tools, health and safety, and appliances. Further, according to Hall's own mother, Hall could read and write well enough to pass a written driver's test and had had at least one, if not two, age appropriate girlfriends. The State's psychologist also found that, during his interview with Hall, Hall acted and talked like an adolescent or young adult. Also, in talking about the murder of Amy Robinson, Hall was fluent, articulate, and related events logically. Having independently reviewed all of the evidence, the court concludes that, while there is evidence indicative of mental retardation, arguably only of mild mental retardation, there is ample evidence that Hall is not mentally retarded. Consequently, the state court's finding that Hall is not mentally retarded was not unreasonable. See 28 U.S.C. § 2254(d)(2). Nor was the state court's alternative finding that, even if Hall were mildly retarded, he "is not so impaired as to fall within the range of mentally retarded offenders about whom there is a national consensus." See Atkins, 536 U.S. at 317, 122 S.Ct. 2242. Moreover, those findings are presumed to be correct unless controverted by Hall with clear and convincing evidence. See 822 28 U.S.C. § 2254(e)(1). Hall has failed to meet that burden here.[4] The court thus concludes that Hall's sentence of death is constitutional. Hall's ground one is denied. B. Ground Two: No Jury Finding on Mental Retardation Relying on Atkins and Ring v. Arizona, 536 U.S. 584, 122 S.Ct. 2428, 153 L.Ed.2d 556 (2002), Hall contends that he was entitled to a jury finding on the issue of mental retardation. See Hall's Pet. at 34-36. The holding of Atkins has already been discussed. In Ring, the Supreme Court held that, where a fact-finding increases the maximum punishment established by the legislature, a capital defendant is entitled ..to have that fact decided by the jury. Ring, 536 U.S. at 589, 122 S.Ct. 2428. As correctly pointed out by the State, because Hall failed to raise this issue in the state proceedings, it is procedurally defaulted. Coleman v. Thompson, 501 U.S. 722, 735 n. 1, 111 S.Ct. 2546, 115 L.Ed.2d 640 (1991); 28 U.S.C. § 2254(b)(1). Consequently, federal habeas review of this claim is barred unless Hall demonstrates "cause for the default and actual prejudice as a result of the alleged violation of federal law" or that "failure to consider [this claim] will result in a fundamental miscarriage of justice." Bagwell v. Dretke, 372 F.3d 748, 755 (5th Cir.2004), cert. denied, 543 U.S. 1134, 125 S.Ct. 1240, 160 L.Ed.2d 1092 (2005), (citing Coleman, 501 U.S. at 750, 111 S.Ct. 2546). Here, Hall has made no attempt to show cause and prejudice for his default or that failure to consider this ground will result in a fundamental miscarriage of justice. Consequently, the court is satisfied that ground two is procedurally defaulted. Even if it not procedurally defaulted, Hall's claim that he was entitled to a jury determination on mental retardation is without substantive merit. Nowhere in Atkins does the Supreme Court hold that a jury determination on this issue is required. To the contrary, in Atkins, the Supreme Court expressly left to the states the task of developing appropriate ways to enforce the constitutional restriction on executing mentally retarded offenders. See Atkins, 536 U.S. at 317, 122 S.Ct. 2242; see also Schriro v. Smith, ___ U.S. ___, 126 S.Ct. 7, 163 L.Ed.2d 6 (2005) (holding that the Ninth Circuit erred by commanding the Arizona courts to conduct a jury trial to resolve defendant's mental-retardation claim). Moreover, the Fifth Circuit has specifically held that Ring does not require a jury determination on mental retardation. In re Johnson, 334 F.3d 403, 404-05 (5th Cir.2003). This court is bound by that precedent. Ground two is also denied. C. Ground Three: The Mitigation Issue 1. Burden of Proof First, Hall argues that Texas's capital-sentencing scheme is unconstitutional, because it fails to quantify the burden of proof on the issue of mitigation and fails to specify which party bears that burden. See Hall's Pet. at 37-38. In making this argument, Hall again relies on Ring. In Ring, however, the Supreme Court was abundantly clear that only the issue of aggravating circumstancesnot mitigating circumstanceswas before it. Ring, 536 U.S. at 597 n. 4, 122 S.Ct. 2428. Indeed, the Supreme Court specifically noted that it "`has often recognized a distinction between facts in aggravation of punishment 823 and facts in mitigation.'" Id. (citing Apprendi v. New Jersey, 530 U.S. 466, 490-91 n. 16, 120 S.Ct. 2348, 147 L.Ed.2d 435 (2000)). In short, Hall has failed to point to any legal precedent in his favor on this issue. Consequently, the court rejects this assertion. 2. The Indictment Hall's second argument concerning the mitigation issue and the indictment is unclear. See Hall's Pet. at 3738. As best as the court can decipher, however, relying on Apprendi, 530 U.S. at 476, 120 S.Ct. 2348, Hall urges that, in violation of the Constitution, the State failed to plead the absence of mitigation in the indictment. As is.evident, however, from the very language Hall relies on in making this assertion, Apprendi only requires that "any fact . . . that increases the maximum penalty for a crime must be charged in the indictment . . ." See Apprendi, 530 U.S. at 476, 120 S.Ct. 2348 (emphasis added). This contention is thus also without merit. Ground three is denied. D. Ground Four: Admission of Hall's Videotaped Statement After Hall was arrested, he gave reporters an interview that was videotaped. Hall alleges that the admission of the videotaped interview at trial violated his privilege against self-incrimination, his right to counsel, and due-process rights in contravention of the Fifth, Sixth, and Fourteenth Amendments. See Hall's Pet. at 39. Or, as well summarized by the State, the gist of Hall's complaint is that when the reporters interviewed him, they were acting as state agents, and the state court's finding to the contrary was incorrect. See Resp't's Resp. at 29. If a state obtains an incriminating statement from an accused by knowingly circumventing the accused's right to have counsel present in a confrontation between the accused and a state agent, the Sixth Amendment is violated.[5]See Maine v. Moulton, 474 U.S. 159, 176, 106 S.Ct. 477, 88 L.Ed.2d 481 (1985). Here, there is no evidence that the reporters were acting as agents of the State. To the contrary, the reporters testified at the suppression hearing that no authority ever suggested that they conduct the interview, and no authority suggested any questions for them to ask. Hall, 67 S.W.3d at 875. In fact, the reporters did not even provide authorities with copies of the interview. Id. The court therefore concludes that the state court did not err in rejecting this claim. This court likewise concludes that it is without merit.[6] E. Ground Five: The Death-Penalty Statute Is Unconstitutional Hall raises a number of complaints within his ground for relief wherein he claims that the death-penalty statute in Texas is unconstitutional. See Hall's Pet. at 40-45. The court, however, concurs with the State that the only one raised in the state-court proceedings was whether the jury is given too much discretion by the special-issue system. Because none of the others were raised in the state-court proceedings, they are all procedurally defaulted.[7]Coleman 501 U.S. at 735 n. 1, 111 S.Ct. 2546. And, 824 yet again, Hall has failed to show cause and prejudice for his default or that failure to consider these other complaints will result in a fundamental miscarriage of justice. Consequently, federal habeas review of them is barred. Bagwell, 372 F.3d at 755. With respect to whether Texas juries are given too much discretion, the Fifth Circuit has specifically held that the jury "may be given unbridled discretion in determining whether the death penalty should be imposed after it has found that the defendant is a member of the class made eligible for that penalty." See Woods v. Cockrell, 307 F.3d 353, 359 (5th Cir.2002) (citations omitted). Also, the Supreme Court has held that Texas's capital-sentencing procedures are constitutional. See Jurek v. Texas, 428 U.S. 262, 269-277, 96 S.Ct. 2950, 49 L.Ed.2d 929 (1976). Thus, the state court finding against Hall on this issue was not contrary to or an unreasonable application of federal law. See 28 U.S.C. § 2254(d)(1). Habeas relief is not warranted. F. Ground Six: Insufficient Evidence of Future Dangerousness Hall's argument that there was insufficient evidence of his future dangerousness is premised on his underlying assertion that Ring requires future dangerousness to be proven beyond a reasonable doubt. See Hall's Pet. at 45 (citing Ring, 536 U.S. at 602-03, 122 S.Ct. 2428). The court does not read Ring as authority for that proposition. Apparently neither does the State. In fact, the State urges that, despite Texas law requiring future dangerousness to be proven beyond a reasonable doubt,[8] the Constitution does not so require as a matter of federal due process. See Resp't's Resp. at 35-37. The court, however, need not resolve this debate. It is satisfied that, even under the stricter standard of burden of proof urged by Hall, the state-court jury's finding that Hall was a future danger was not unreasonable given the evidence in this case. See 28 U.S.C. § 2254(d)(2). Among other things, the evidence shows that Hall's murder of Amy Robinson was coldly premeditated. She was carefully chosen, because Hall thought she would be an easy first kill of what he hoped would be a series of future, weekly and racially-motivated killings. Also, Hall showed no remorse over her death. To the contrary, he boasted and snickered about it to the media. The evidence also showed that he had violent fantasies and dreams of hurting people, which is common for potential killers. Moreover, the finding of the state-court jury based on this evidence that Hall was a future danger to society is presumed to be correct unless controverted by Hall with clear and convincing evidence. See 28 U.S.C. § 2254(e)(1). Hall has failed to do so. Ground six is denied. G. Ground Seven: The Mitigation Instructions Were in Error Hall launches various complaints regarding the mitigation instructions given to the jury. These include, inter alia, that they wrongly permitted the jury to consider mitigating evidence as aggravating evidence, failed to define "moral blameworthiness," failed clearly to indicate that evidence as to Hall's mental capacity could be considered as mitigating, and wrongly restricted the definition of mitigating evidence to "only that evidence which `a juror might regard as reducing the defendant's moral blameworthiness.'" See Hall's Pet. at 47-52. Putting aside whether his assertions are even factually accurate,[9] Hall has 825 failed to show that any of the complained-of instructions were contrary to, or involved an unreasonable application of, clearly established federal law as required. See 28 U.S.C. § 2254(d)(1). The Supreme Court case of Penry v. Johnson, 532 U.S. 782, 121 S.Ct. 1910, 150 L.Ed.2d 9 (2001), on which Hall heavily relies, notes that the key to a constitutional sentencing scheme is that the jury be able to consider and give effect to a defendant's mitigating evidence in imposing a sentence. See Penry, 532 U.S. at 797, 121 S.Ct. 1910. Hall has failed to persuade the court that such was not the case here. Hall's final ground is therefore denied as well. VI. Order For the reasons discussed herein, The court ORDERS that Hall's petition be, and is hereby, denied. NOTES [1] While the undersigned recognizes that 28 U.S.C. § 2254 contemplates the filing of an "application" for writ of habeas corpus, the practice of the Northern District of Texas has long been instead to use the term "petition." Consistent with this now ingrained practice, the undersigned refers to Hall's's application under 28 U.S.C. § 2254 for writ of habeas corpus as the "petition" and uses the term "petitioner" in lieu of "applicant." [2] The Supreme Court cited to this definition in Atkins. See Atkins, 536 U.S. at 308 n. 3, 122 S.Ct. 2242. The State of Texas also uses this definition in death-penalty cases. See Ex Parte Briseno, 135 S.W.3d 1, 6-8 (Tex.Crim. App.2004). [3] Perhaps because Hall was eighteen-years old when the murder was committed, neither he nor the State devote much briefing, if any, to the element requiring that the mental retardation manifest itself by that age. As a result, the court does not either. If Hall were mentally retarded, it is a likely a given that he was so before he turned age eighteen. [4] The court views the issue of Hall's mental capacity as one of fact. Even if viewed as a mixed issue of fact and law, the state-court decision on this issue was not contrary to or otherwise involved an unreasonable application of clearly established federal law. See 28 U.S.C. § 2254(d)(1). [5] For purposes of this analysis, this court, like the Texas Court of Criminal Appeals, has assumed that Hall had been formally charged at the time of the interview. [6] Hall claims that the interview was given without his consent, because he lacked the mental capacity to give consent. Because this assertion is purely derivative of his mental-retardation claim, the court rejects it. [7] The procedurally-defaulted issues include, inter alia, that the state-law judge failed to define "probability" for the jury and such failure gave the jury too much discretion in deciding the issue of future dangerousness. Also, the jury was not given guidance as to the meaning of "criminal acts of violence" and "continuing threat to society." See Hall's Pet. at 40-45. [8] Although the State does not directly admit that Texas law so holds, it does. See Tex. Code Crim. Proc. Ann. art. 37.0711(3)(c) (Vernon 2005). [9] For example, Hall's assertion that the court's definition of mitigating evidence was restricted to "only that evidence which `a juror might regard as reducing the defendant's moral blameworthiness,'" see Hall's Pet. at 49, is misleading. The court instructed the jury to consider "all of the evidence" in deciding whether "there is sufficient mitigating circumstance . . . to warrant that a sentence of life imprisonment rather than a death sentence be imposed." See Vol. 3 of the Clerk's Record at 234.	{ "pile_set_name": "FreeLaw" }
48 F.3d 478 67 Fair Empl.Prac.Cas. (BNA) 270,66 Empl. Prac. Dec. P 43,479, 31 Fed.R.Serv.3d 1403 Darlene THOMAS, Plaintiff-Appellant,v.INTERNATIONAL BUSINESS MACHINES, a New York corporationdoing business in the State of Oklahoma, Defendant-Appellee. No. 93-6062. United States Court of Appeals,Tenth Circuit. Feb. 21, 1995. Lewis Barber, Jr. and Guinise M. Marshall of Barber & Marshall, P.A., Oklahoma City, OK, for plaintiff-appellant. Jeffrey G. Huvelle and Thomasenia P. Duncan of Covington & Burling, Washington, DC, and Mona S. Lambird and Carolyn Gregg Hill of Andrews Davis Legg Bixler Milsten & Price, Oklahoma City, OK, and Douglas G. Vetter of IBM Corp., Somers, NY, for defendant-appellee. Before MOORE and EBEL, Circuit Judges, and VRATIL, District Judge.* EBEL, Circuit Judge. 1 Plaintiff-Appellant Darlene Thomas ("Thomas"), an employee of Defendant-Appellee International Business Machines Corporation ("IBM"), appeals the district court's summary judgment dismissal of her claim that IBM violated the Age Discrimination in Employment Act ("ADEA"), codified as amended at 29 U.S.C. Secs. 621-634. Thomas also appeals the court's grant of IBM's motion for a protective order to relieve John F. Akers, Chairman of the Board of Directors of IBM, from the necessity of complying with Thomas' notice to take deposition. We affirm.1 I. Background 2 Since 1979, Thomas has performed clerical and administrative duties in IBM's Oklahoma City office. In early 1990, IBM merged the Oklahoma City National Service Division, where Thomas had worked under the supervision of Dorothy Warren ("Warren"), into the Marketing Branch. In the Marketing Branch, Thomas' new direct supervisor was Mark Beck ("Beck"), who in turn reported to Dan Aleto ("Aleto"), the branch operations manager. 3 Before Thomas was hired, IBM implemented an employee performance rating system pursuant to which each employee received an annual written evaluation that included a performance score between 1 and 5. An employee who "far exceeds" expectations receives a "1," whereas a "5" reflects unsatisfactory performance, and a "4" means that the employee has met his or her requirements, and no more. During her thirteen-year tenure with IBM, Thomas has never received an annual performance rating of "1" or "2," but also never received a "5." 4 In May 1991, Aleto ranked the thirty-three administrative employees in the Marketing Branch according to their "relative contribution to IBM's business." A critical component of Aleto's evaluation was each employee's most recent performance rating. IBM admonished employees that if they received a performance rating of "4" and a low rank vis-a-vis their colleagues, their positions would be at risk. A 1991 company memo entitled "Determining Employee Contribution in IBM" informed employees that the ranking was precipitated by IBM's aim to enhance its performance in what had become a keenly competitive computer market. In his evaluation of Thomas' department, Aleto ranked Thomas thirtieth out of thirty-three, which placed her in the bottom quartile. Among all the employees included in this May 1991 ranking of her department, only Thomas and two others had never received a ranking of "1" or "2." 5 Just two months later in July 1991, Beck completed his annual review of Thomas and evaluated her performance at level "4." In April 1992, Thomas again received a "4" rating in her annual review. This time Warren, who had replaced Beck as Thomas' supervisor, conducted the evaluation. 6 Also during the early 1990s, IBM instituted a voluntary separation incentive program known as Individual Transition Options ("ITO"). Pursuant to ITO, IBM offered employees the opportunity to retire and receive a severance payment based on their length of service and salary level. Alternatively, the program allowed employees not yet eligible for retirement to take an unpaid leave of absence for up to eight years, during which time they would accrue service credits toward retirement and enjoy coverage under IBM's medical plan. IBM offered ITO to all employees, regardless of age. 7 Between June 1991 and May 1992, Thomas' supervisors periodically encouraged her to pursue the ITO program because IBM was contemplating a reduction in the number of administrative employees in its Oklahoma City office. Although Thomas knew that her undistinguished performance evaluations and ranking placed her job at risk, she nonetheless opted to remain at IBM and is today one of thirteen administrative employees in the Oklahoma City office. 8 On May 12, 1992, Thomas commenced this action, alleging the following federal and state law claims: (1) IBM violated the ADEA by giving her undeservedly low performance evaluations in order to coerce her to resign under the ITO program; (2) IBM engaged in intentional infliction of emotional distress; and (3) IBM committed fraud and deceit in its evaluations of her performance. 9 After the parties conducted written discovery and exchanged witness and exhibit lists, they filed myriad pretrial motions between November 1992 and January 1993. The two critical motions for this appeal are IBM's motion on December 4, 1992 for a protective order to relieve IBM Chairman Akers from complying with Thomas' notice to take his deposition and IBM's December 14, 1992 motion for summary judgment. On December 8, 1992, the court granted IBM's motion for a protective order to block the Akers deposition and subsequently denied Thomas' two motions for reconsideration. After ruling on numerous additional motions to compel and extend discovery, the court granted summary judgment in favor of IBM on all claims on January 20, 1993. 10 In this appeal, Thomas contends that the court abused its discretion in preventing the Akers deposition and that genuine issues of material fact preclude summary judgment in favor of IBM on the ADEA claim.2 II. Discussion 11 A. The Protective Order to Block the Akers Deposition 12 Because the decision to grant a protective order under Fed.R.Civ.P. 26(c) is vested in the district court's discretion, we will only reverse the court's ruling if that discretion was abused.3 Wang v. Hsu, 919 F.2d 130, 130 (10th Cir.1990). Under the abuse of discretion standard, we will not disturb a trial court's decision absent "a definite and firm conviction that the lower court made a clear error of judgment or exceeded the bounds of permissible choice in the circumstances." United States v. Ortiz, 804 F.2d 1161, 1164 n. 2 (10th Cir.1986). 13 To place the district court's grant of IBM's protective order in proper perspective, we briefly review what transpired prior to its ruling. Thomas filed her complaint on May 12, 1992 and IBM filed its answer on June 4, 1992. In a pretrial conference in early July, the court scheduled discovery to end on December 1, 1992 and set trial for January 1993. On November 16, 1992, IBM and Thomas filed a joint application to extend the discovery deadline and the trial date. On November 17, 1992, the court denied this application. On November 24, 1992, the court granted IBM's counsel's request to withdraw from the case. The next day, new IBM counsel entered an appearance and requested both a ten-day extension in the discovery deadline and permission to file a summary judgment motion on December 17, 1992; counsel did not request an extension in the trial date. On November 30, 1992, the court granted this discovery extension, but required all summary judgment motions to be filed on December 14, 1992. On December 1, 1992, Thomas also requested a ten-day discovery extension, which the court granted that same day.4 Also on December 1st, Thomas gave notice in violation of Local Rule 15(A) to depose Akers in Oklahoma City on December 7th, fewer than five business days later. IBM responded on December 4th with its motion for a protective order. On December 4th, Thomas served IBM with a second deposition notice and also requested the court to waive the five-day notice requirement in Local Rule 15(A). On December 8th, the court granted IBM's motion for a protective order. 14 We conclude that the record amply supports the court's protective order. First, Thomas does not dispute that her notice to depose Akers in Oklahoma City on December 7th violated the court's Local Rule 15(A), which requires opposing counsel to give five-days notice to deponents who are outside the jurisdiction. Additionally, Thomas' notice to conduct the deposition in Oklahoma City clashes with the normal procedure that the "deposition of a corporation by its agents and officers should ordinarily be taken at its principal place of business." 8A Charles Alan Wright, Arthur R. Miller & Richard L. Marcus, Federal Practice and Procedure: Civil Sec. 2112 at 81 (1994) (citations omitted). 15 Thomas attempts to justify her deposition request by arguing that the lack of adequate notice arose from the court's expedited discovery schedule and that Akers would not be inconvenienced by traveling to IBM's Oklahoma City office. However, noticeably absent from Thomas' opposition to IBM's protective order motion is any explanation as to why she waited until December 1st to set the deposition date and why her counsel could not have conducted the deposition at IBM's principal place of business in White Plains, New York. Indeed, the district court noted that Thomas not only waited until after the expiration of the original discovery deadline to give notice of Akers' deposition, but also had not taken the deposition of any other IBM personnel. 16 Furthermore, IBM submitted an affidavit from Akers in which he testified that he lacked personal knowledge of Thomas and was unaware of her age, her performance ranking, any work evaluations that she might have received, or that she even worked for IBM.5 See Lewelling v. Farmers Ins. of Columbus, Inc., 879 F.2d 212, 218 (6th Cir.1989) (upholding district court's exercise of discretion in granting protective order to bar plaintiffs from deposing their employer's chief executive officer, who lacked knowledge about any pertinent facts); Salter v. Upjohn Co., 593 F.2d 649, 651 (5th Cir.1979) (upholding protective order in a wrongful death action against a drug manufacturer that barred the deposition of the defendant's president because he was extremely busy and lacked direct knowledge of facts in dispute, and other employees had more direct knowledge). Nothing in the record indicates that IBM did not make available for deposition Thomas' direct supervisors, who conducted the performance evaluations and ranking. Also, Akers explained that the deposition would have imposed "severe hardship" because he was required to attend previously scheduled meetings with IBM senior management in New York from December 3, 1992 to December 14th. 17 Thomas argues that Akers' deposition was critical for her case because he had allegedly authored an IBM policy designed to discriminate against older employees. Thomas notes that Akers testified in Rathemacher v. IBM, No. 88-3463, 1992 WL 41719 (D.N.J. Feb. 28, 1992), in which a former IBM manager prevailed on a constructive discharge claim that the company forced him to accept an early retirement plan by demoting him from management, transferring him, and harassing him in the workplace.6 18 Although it is conceivable that Akers' testimony about the genesis of the ITO program could be relevant to a disparate impact claim against IBM, the district court concluded that Thomas did not allege disparate impact in her complaint, in the parties' Joint Status Report, or in her Final Contentions filed on November 2, 1992. Moreover, Thomas made no attempt to demonstrate that the information she seeks to obtain from Akers could not be gathered from other IBM personnel, for whom a deposition might have been less burdensome. 19 When we add to these factors Thomas' failure to give Akers adequate notice, the burden that a hurried deposition would have imposed on Akers, the fact that Thomas waited until the eleventh hour to request the deposition, and her failure to depose any other IBM personnel, including her own direct supervisors, it was clear beyond peradventure that the district court did not abuse its discretion in issuing the protective order. B. The ADEA Claim 20 We review de novo the district court's summary judgment ruling in favor of IBM on Thomas' ADEA claim and apply the same standard used by the district court. Applied Genetics Int'l. Inc. v. First Affiliated Sec., Inc., 912 F.2d 1238, 1241 (10th Cir.1990). Summary judgment is appropriate only "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 matter of law." Fed.R.Civ.P. 56(c). We examine the factual record and reasonable inferences therefrom in the light most favorable to Thomas, who opposed summary judgment. Applied Genetics, 912 F.2d at 1241. 21 IBM, as the moving party, has the initial burden to show "that there is an absence of evidence to support the nonmoving party's case." Celotex Corp. v. Catrett, 477 U.S. 317, 325, 106 S.Ct. 2548, 2554, 91 L.Ed.2d 265 (1986). Once IBM meets this burden, the burden shifts to Thomas to identify specific facts that show the existence of a genuine issue of material fact. "The party opposing the motion must present sufficient evidence in specific, factual form for a jury to return a verdict in that party's favor." Bacchus Indus., Inc. v. Arvin Indus., Inc., 939 F.2d 887, 891 (10th Cir.1991). "Where the record taken as a whole could not lead a rational trier of fact to find for the nonmoving party," summary judgment in favor of the moving party is proper. Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587, 106 S.Ct. 1348, 1356, 89 L.Ed.2d 538 (1986). 22 The ADEA makes it unlawful for an employer "to discriminate against any individual with respect to his compensation, terms, conditions, or privileges of employment" or to "classify his employees in any way which would deprive or tend to deprive any individual of employment opportunities or otherwise adversely affect his status as an employee," because of the individual's age. 29 U.S.C. Sec. 623(a)(1)-(2). 23 To prevail on a disparate treatment claim, Thomas "must prove by a preponderance of the evidence that IBM had a discriminatory motive or intent." Ortega v. Safeway Stores, Inc., 943 F.2d 1230, 1236 (10th Cir.1991). Absent direct proof of discriminatory intent, we evaluate Thomas' claim under the burden-shifting analytical framework of McDonnell Douglas Corp. v. Green, 411 U.S. 792, 93 S.Ct. 1817, 36 L.Ed.2d 668 (1973). "The framework for assessing the evidence in an age discrimination case parallels that applicable in a Title VII case." Spulak v. K Mart Corp., 894 F.2d 1150, 1153 (10th Cir.1990). 24 A typical claim of age discrimination against an employer arises when the employer discharges an employee on the basis of age, in which case the employee establishes a prima facie case by showing that (1) the employee belongs to the protected age group; (2) the employee's job performance was satisfactory; (3) the employee was discharged; and (4) the employee was replaced by a younger person. MacDonald v. Eastern Wyo. Mental Health Ctr., 941 F.2d 1115, 1119 (10th Cir.1991). 25 Here, the gravamen of Thomas' ADEA claim is not that she was discharged, but rather that IBM unsuccessfully sought to induce her to accept the ITO program and discriminated against her by giving her undeservedly low performance evaluations, to wit: the July 1991 and April 1992 performance ratings of "4" and the May 1991 ranking, which placed her in the bottom quartile.7 Thus, we modify the third prong to require proof that adverse employment action was taken against her. Similarly, we modify the fourth element to require proof that comparable employees who were not in a protected age category did not receive comparable adverse employment action. Alternatively, Thomas could present direct proof of intent to discriminate against her based on her age. 26 Thomas has satisfied the first prong of the prima facie case because she was over 40 years of age when the alleged discrimination occurred. She arguably meets the third prong insofar as IBM gave her two undistinguished annual reviews and a poor departmental ranking. To support the second and fourth prongs of her prima facie case, Thomas relies on her own five-page affidavit, the affidavit of Professor Phil McCormack, an expert witness, and Akers' testimony in Rathemacher. She advances no direct evidence showing that IBM intended to discriminate against her based on her age. 27 Before exploring Thomas' proffered evidence, we address IBM's claim that Thomas' affidavit contains inadmissible hearsay that may not be used to defeat summary judgment. At the summary judgment stage, affidavits must "set forth facts as would be admissible in evidence, and shall show affirmatively that the affiant is competent to testify to the matters stated therein." Fed.R.Civ.P. 56(e); Committee for the First Amendment v. Campbell, 962 F.2d 1517, 1526 n. 11 (10th Cir.1992) ("In opposing a motion for summary judgment, the nonmovant must make a showing that, 'if reduced to admissible evidence,' would be sufficient to carry the nonmovant's burden of proof at trial.") (quoting Celotex, 477 U.S. at 327, 106 S.Ct. at 2555) (emphasis added). 28 To be sure, the nonmoving party need not produce evidence "in a form that would be admissible at trial," Celotex Corp., 477 U.S. at 324, 106 S.Ct. at 2553, but the content or substance of the evidence must be admissible. Winskunas v. Birnbaum, 23 F.3d 1264, 1267-68 (7th Cir.1994). For example, hearsay testimony that would be inadmissible at trial may not be included in an affidavit to defeat summary judgment because "[a] third party's description of [a witness'] supposed testimony is not suitable grist for the summary judgment mill." Garside v. Osco Drug, Inc., 895 F.2d 46, 50 (1st Cir.1990). Furthermore, "generalized, unsubstantiated, non-personal affidavits are insufficient to successfully oppose a motion for summary judgment." Stevens v. Barnard, 512 F.2d 876, 879 (10th Cir.1975). 29 The purported hearsay that IBM and the district court identifies in Thomas' affidavit is her statement that colleagues under the age of 40 received transfer opportunities from IBM, whereas colleagues over 40 years of age who ranked in the third and fourth quartile of the May 1991 ranking did not receive transfer offers. From the record before us, however, we cannot determine whether this statement is necessarily hearsay. If Thomas is testifying to what an authorized agent for IBM told her, the statements would constitute an admission by a party-opponent and therefore be admissible under Fed.R.Evid. 801(d)(2). However, if Thomas is testifying to what other employees told her about what IBM agents in turn told them, then the testimony could constitute inadmissible hearsay. Because we must examine the record in the light most favorable to Thomas, we assume for purposes of this appeal that this statement is not hearsay. 30 Nevertheless, Thomas' affidavit merely contains conclusory allegations without specific supporting facts and thus lacks probative value. Nichols v. Hurley, 921 F.2d 1101, 1113 (10th Cir.1990). Perhaps most revealing is the absence of any proof by Thomas that her direct supervisors deflated her July 1991 and April 1992 performance evaluations, or her status in the May 1991 ranking, on the basis of her age. To the contrary, Thomas testified during a deposition that neither Beck, Warren, nor Aleto--the individuals who conducted the evaluations and ranking--treated her unfairly because of her age. 31 Further, Thomas acknowledged that she agreed with Beck's 1991 evaluation of her performance in at least two of the categories. In fact, Thomas failed to identify any employee above whom she should have been ranked. Thomas' claims in her affidavit that her supervisor told her in January 1991 that she was performing at level "2," although in her July 1991 annual review she received a "4" rating. However, she does not show that this "4" rating was undeserved, nor does she show, or even allege, that the supervisor acted with discriminatory animus or intent. 32 The empirical data on which Thomas relies likewise offers no support for her prima facie case. Thomas testified that all employees ranked in the third and fourth quartile in the May 1991 ranking either belonged to a protected group under Title VII or the ADEA, had suffered from extensive illness, or had previously filed an EEOC complaint. However, she has grouped so many classifications of employees together that this statistic offers no proof of age discrimination. In fact, this data undermines her age discrimination argument because the distribution in all four quartiles according to age is evenly balanced.8 In fact, five of the nine employees in the fourth quartile, and five of the six lowest ranked employees, were under 40 years of age. Additionally, Thomas offers no evidence that any employee in the third and fourth quartile should have received a higher ranking and she conceded that Aleto, who conducted the ranking, did not treat her unfairly on the basis of her age. 33 The two-page affidavit of Thomas' expert witness is similarly inadequate. Just three weeks prior to the submission of his affidavit, McCormack testified that "the evidence is lacking as far as showing whether or not the evaluation as received by Ms. Thomas was merited or not merited." Aplt.App. at 232. McCormack's affidavit neither amended nor retracted this deposition testimony. Instead, McCormack's affidavit is silent about Thomas' 1991 and 1992 performance evaluations or the May 1991 departmental ranking--the critical events in this ADEA claim. In fact, McCormack testified that IBM's appraisal system contained safeguards to minimize the possibility for unlawful bias or discrimination, such as a written performance plan, objective criteria, a requirement that the supervisor specify in writing the reasons for each rating, and an independent review of the supervisor's evaluation by the second-level manager. 34 McCormack's affidavit did state that, on the basis of interviews with "approximately 11 past and present employees of IBM," he believed that "Thomas was subjected to discrimination based on her age ... as a result of said ITO plan." Aplt.App. at 331. Aside from the minimal sample size of his study, McCormack failed to support this conclusory allegation with any specific facts or empirical evidence other than the generalized statement that "some employees under 40 were offered transfer options that were not offered to the majority of employees over 40." Id. Likewise, Akers' testimony in Rathemacher, a case involving constructive discharge, does not speak to Thomas' performance evaluations, ranking, or the ITO program. 35 Next, Thomas states in her affidavit that IBM conducted the May 1991 ranking before informing her of its intent to implement a ranking system and that her July 1991 performance evaluation was eight months late. However, Thomas fails to show a nexus between these two acts and her age discrimination claim--i.e. she demonstrated no plausible evidence of an unlawful discriminatory motive on IBM's part to rank Thomas before informing her of the system or to delay the performance evaluation. At summary judgment, the inquiry is not whether the parties dispute certain facts, but instead whether the evidence establishes a genuine issue of material fact. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248, 106 S.Ct. 2505, 2510, 91 L.Ed.2d 202 (1986). A fact is "material" only if it "might affect the outcome of the suit under the governing law," and a dispute about a material fact is "genuine" only "if the evidence is such that a reasonable jury could return a verdict for the nonmoving party." Id. 36 Finally, we reject Thomas' protestation that the district court's pretrial denial of IBM's motion in limine to exclude the testimony of four witnesses is irreconcilable with the court's subsequent summary judgment ruling. In denying IBM's motion in limine, the court correctly relied on Spulak, 894 F.2d at 1156, for the proposition that the testimony of other employees about their treatment by the defendant may, under some circumstances, be relevant to the issue of the employer's discriminatory intent. Because Thomas' proposed witnesses were either present or former IBM employees who allegedly experienced age discrimination, the court reasoned that their testimony at trial could be relevant. However, insofar as Thomas did not attempt to defeat IBM's summary judgment motion by proffering affidavits or depositions from these witnesses, the court properly gave no weight to Thomas' summary prediction of these witnesses' expected trial testimony. 37 Because Thomas has not provided any facts from which we can infer that IBM's performance evaluations and ranking were driven by age discrimination, we conclude that "the record taken as a whole could not lead a rational trier of fact to find for" Thomas on her disparate treatment ADEA claim. Matsushita, 475 U.S. at 587, 106 S.Ct. at 1356.9 III. Conclusion 38 The district court's protective order and summary judgment order are AFFIRMED. * The Honorable Kathryn H. Vratil, United States District Court Judge, District of Kansas, sitting by designation 1 After examining the briefs and appellate record, this panel has determined unanimously to honor the parties' request for a decision on the briefs without oral argument. See Fed.R.App.P. 34(f); 10th Cir.R. 34.1.9. The case is therefore ordered submitted without oral argument 2 Because Thomas does not appeal the court's summary judgment dismissal of her claims of intentional infliction of emotional distress and fraud, we do not address these issues. Abercrombie v. City of Catoosa, 896 F.2d 1228, 1231 (10th Cir.1990) (failure to argue an issue in the appellate brief or at oral argument constitutes waiver, even when the appellant lists the issue in the notice of appeal) 3 Fed.R.Civ.P. 26(c) provides in pertinent part: Upon motion by a party or by the person from whom discovery is sought, accompanied by a certification that the movant has in good faith conferred or attempted to confer with other affected parties in an effort to resolve the dispute without court action, and for good cause shown, the court in which the action is pending or alternatively, on matters relating to a deposition, the court in the district where the deposition is to be taken may make any order which justice requires to protect a party or person from annoyance, embarrassment, oppression, or undue burden or expense.... 4 Given that the court granted Thomas the same discovery extension afforded to IBM, Thomas' claim that the court abused its discretion in granting IBM a unilateral discovery extension is without merit 5 In a corroborating affidavit, Aleto testified that he never informed Akers about Thomas' evaluation and ranking 6 Thomas submitted a transcript of Akers' testimony in Rathemacher in opposition to IBM's summary judgment motion in the instant case 7 In her complaint, Thomas requested the following relief: an injunction barring IBM from "reprisal and further acts of discrimination"; expungement of unsatisfactory performance ratings; nominal, compensatory, and liquidated damages; and attorney's fees. Aplt.App. at 5-6 8 The distribution is as follows: Quartile Employees Under 40 Employees Over 40 First 5 3 Second 5 3 Third 4 4 Fourth 5 4 Aplt.App. at 96. 9 Although Thomas made a belated attempt to argue to the district court that she was also asserting a disparate impact claim, we agree with the district court that Thomas' complaint does not state a disparate impact claim. In her complaint filed on May 12, 1992, Thomas confined her ADEA claim to a disparate treatment theory, namely, that IBM unjustifiably deflated her performance evaluation and ranking because of her age. As the district court noted in its December 29, 1992 order, Thomas did not allege a disparate impact theory in her initial complaint, the parties' Joint Status Report, or her Final Contentions filed on November 2, 1992. Although Thomas made some attempt to assert a disparate treatment claim in the weeks before trial, the district court quite properly declined to allow Thomas to switch her theories at that late date. In any event, the statistics presented would not support a genuine dispute of material fact as to a disparate impact claim even if one were asserted	{ "pile_set_name": "FreeLaw" }
989 A.2d 918 (2010) PAULEY v. BAYER CORP. No. 565 EAL (2009). Supreme Court of Pennsylvania. February 12, 2010. Disposition of Petition for Allowance of Appeal Denied.	{ "pile_set_name": "FreeLaw" }
121 F.3d 704 Saldanav.Polunsky* NO. 97-10193 United States Court of Appeals,Fifth Circuit. July 10, 1997 Appeal From: N.D.Tex. ,No.1:96CV274 1 Affirmed. * Fed.R.App.P. 34(a); 5th Cir.R. 34.2	{ "pile_set_name": "FreeLaw" }
779 N.W.2d 79 (2009) TOOL v. NOLIN. No. 08-2012. Court of Appeals of Iowa. December 30, 2009. Decision Without Published Opinion Affirmed.	{ "pile_set_name": "FreeLaw" }
19 F.3d 645 Wat-Cha Corp.v.Township of Saddle Brook, Sistaro (John R.), ConstructionOfficial of Township of Saddle Brook, Board of Adjustment ofTownship of Saddle Brook Chez-Sez Corp. v. Township ofRochelle Park, Board of Adjustment of Township of RochellePark, Montroy (Gary), Construction Official of Township ofRochelle Park NOS. 93-5461, 93-5462 United States Court of Appeals,Third Circuit. Feb 09, 1994 Appeal From: D.N.J., Wolin, J. 1 AFFIRMED.	{ "pile_set_name": "FreeLaw" }
976 F.2d 748 26 U.S.P.Q.2d 1137 NOTICE: 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.ALCON LABORATORIES, INC., Plaintiff-Appellant,v.ENTRAVISION, INC., Defendant-Appellee. No. 92-1026. United States Court of Appeals, Federal Circuit. Aug. 19, 1992. Before RICH, Circuit Judge, BENNETT, Senior Circuit Judge, and PAULINE NEWMAN, Circuit Judge. DECISION RICH, Circuit Judge. 1 Alcon Laboratories, Inc. (Alcon) appeals from the October 1, 1991 final decision of the U.S. District Court for the Western District of North Carolina, Case No. ST-C-90-71, granting summary judgment in favor of Entravision, Inc. (Entravision) on a charge of infringement of Alcon's United States Patent No. 4,443,432 ('432 patent). We affirm. DISCUSSION 2 Though the '432 patent is titled "Ophthmalic Irrigating Solution," all claims thereof are directed to a method of maintaining corneal stability during eye surgery. More specifically, the claimed method involves provision, in stable, sterile form, of a known solution, namely, glutathione-bicarbonate-Ringer's solution (GBR), which is used during ocular surgery to irrigate exposed eye tissue. Past attempts to provide "off the shelf" GBR solution were hampered by the mutually hostile pH environments required to maintain stability of the various components of GBR solution. For example, bicarbonate generally decomposes at a pH of below about 8, while glutathione in oxidized (preferred) form is unstable over extended periods of time at a pH of above about 5. The method of the '432 patent addresses this problem by providing a two-part solution system which includes separately prepackaged basic and acidic solutions, to be mixed together within about one day of surgical use. Claim 1, the only independent claim of the '432 patent, provides as follows: 3 1. A method of maintaining corneal stability during ocular surgery comprising 4 [a] preparing a stable basic solution containing bicarbonate ions, 5 [b] sterilizing said basic solution and prepackaging said basic solution, 6 [c] preparing a stable acidic solution containing calcium ions, magnesium ions, dextrose and glutathione, 7 [d] sterilizing said acidic solution and prepackaging said acidic solution, 8 [e] providing sodium ions in one of said solutions, providing potassium ions in one of said solutions and providing chloride ions in one of said solutions, 9 [f] mixing said prepackaged solutions together in a manner which maintains their sterility to form a combined solution containing between about 130 and about 180 mM/l sodium ions, between about 3 and about 10 mM/l potassium ions, between about 1 and about 5 mM/l calcium ions, between about 0.5 and about 4 mM/l magnesium ions, between about 10 and about 50 mM/l bicarbonate ions, between about 2 and about 10 mM/l dextrose and between about 0.03 and about 0.5 mM/l oxidized glutathione or the equivalent amount of reduced glutathione, said combined solution having a pH of between about 6.8 and about 8.0 and an osmolality of between 250 and about 350 mOsm/kg, and 10 [g] within about 24 hours of mixing said prepackaged solutions, irrigating an eye with said combined solution. 11 Thus, prior to mixing step (f), the product of the claimed method is two separately prepackaged solutions, which are to be mixed together, presumably by medical personnel, within a day of surgery, thus ensuring solution stability for that period of time. 12 Entravision's accused method, briefly stated, begins with the production of a stable basic solution containing bicarbonate, which basic solution is then sterilized and frozen. Next, a sterile first acidic solution containing glutathione is prepared, chilled, and poured into the same container over the bicarbonate "ice." The glutathione freezes instantly, and the resulting combined frozen mass is lyophilized (freeze-dried) and packaged as a powder. A second acidic solution containing sodium chloride, potassium chloride, calcium chloride, magnesium chloride and dextrose is separately prepared and prepackaged. Thus, prior to final mixing, the accused method provides a prepackaged powder (containing bicarbonate and glutathione mixed together in lyophilized form) and one prepackaged acidic solution.1 13 Following an oral hearing on February 21, 1991, the district court granted Entravision's motion for summary judgment of non-infringement. The district court found that Entravision did not literally infringe the '432 patent, because "[s]imply put, Entravision does not prepare a basic solution containing bicarbonate, sterilize it and prepackage it, nor does it prepare an acidic solution containing glutathione, sterilize and prepackage it." 14 Analyzing infringement under the doctrine of equivalents in accordance with the substantial identity of function/way/result test of Graver Tank & Mfg. Co. v. Linde Air Prods. Co., 339 U.S. 605, 85 USPQ 328 (1950), the district court explained: 15 Inasmuch as the end result of both Alcon and Entravision's processes is a GBR solution for use in maintaining corneal stability during eye surgery[,] thus providing substantial identity of result (corneal stability) and function (irrigating solution), the only inquiry left is whether Entravision uses the same "way" of doing so. 16 (Emphasis added.) The district court rejected as "overstated" Alcon's position that it proceeded in its "way" by developing two solutions with certain pH characteristics and components, specifically separating bicarbonate into a basic solution and glutathione into an acidic solution to maintain stability, and that Entravision must necessarily do the same thing as interim steps in its method of making up separate bicarbonate and glutathione solutions to be freeze-dried. Concluding that the "way" in which the accused method is performed is not substantially similar to the "way" of the claimed method, the district court stated (emphasis ours): 17 Alcon invented a method of providing corneal stability by separating the critical elements of bicarbonate and glutathione into two separate solutions which were then prepackaged. Nothing in any of the affidavits or other materials supplied in connection with this motion suggested that a way existed to combine these two elements of GBR. Indeed, the prior art clearly demonstrated knowledge of the problems posed by the necessity of using in one solution two items which required mutually hostile environments in order to remain stable. Entravision in contrast has developed a way of combining bicarbonate and glutathione in one container in a manner that allows them to be prepackaged together and yet remain stable. Nothing in the prior art suggests this. 18 Alcon concedes on appeal that Entravision's method does not literally infringe the '432 patent. The sole issue before us, then, is whether summary judgment that there was no infringement under the doctrine of equivalents was properly granted. This in turn requires that we determine whether there exist any genuine issues of material fact as to equivalency, which is a question of fact, and whether Entravision is entitled to a judgment of no infringement as a matter of law. Fed.R.Civ.P. 56(c). We review the question of the propriety of summary judgment de novo. National Cable Television Ass'n, Inc. v. American Cinema Editors, Inc., 937 F.2d 1572, 1576, 19 USPQ2d 1424, 1427 (Fed.Cir.1991). 19 In order to prevail on its motion for summary judgment of no infringement, Entravision had to establish the absence of evidence directed to proof of a matter on which Alcon bore the burden of proof, and which was necessary to establish Alcon's case. Becton Dickinson & Co. v. C.R. Bard, Inc., 922 F.2d 792, 798, 17 USPQ2d 1097, 1100-01 (Fed.Cir.1990). As plaintiff, Alcon had the burden to proffer evidence that Entravision's process met each and every limitation of claim 1 either literally or by a substantial equivalent. Id. at 796, 17 USPQ2d at 1099. The district court's grant of summary judgment in favor of Entravision was proper if there was no genuine issue of material fact with respect to one or more claim limitations not being met, either literally or equivalently, in the accused Entravision process. Id. at 798, 17 USPQ2d at 1011. Indeed, "Rule 56(c) mandates the entry of summary judgment ... against a party who fails to make a showing sufficient to establish the existence of an element essential to that party's case, and on which that party will bear the burden of proof at trial." Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986) (emphasis added). 20 In reviewing Alcon's showing, we first examine its response to Entravision's motion for summary judgment. In the portion thereof titled "The Doctrine of Equivalents Applies with Full Force," Alcon sets forth an explanation of how the "concerns" of the '432 inventors are addressed "in the same way" by Entravision's method, citing to descriptions of Entravision's method. This purported "way" analysis is conclusory attorney argument, devoid of support from any evidence of equivalency between the accused and claimed method steps. Indeed, the language of the claims is studiously avoided. 21 The only thing approaching meaningful evidence which Alcon proffered to address equivalency is found in the March 1, 1991 affidavit of '423 co-inventor Dr. Roehrs, submitted by Alcon after the summary judgment hearing. With respect to method step (c) of claim 1, "preparing a stable acidic solution containing calcium ions, magnesium ions, dextrose and glutathione," Roehrs states: 22 The [accused method's] preparation of two acidic solutions, one containing glutathione and the other containing dextrose, calcium ions and magnesium ions performs substantially the same function in substantially the same way and accomplishes the same result as preparing a single acidic solution containing these same components. In both cases dextrose, magnesium ions, calcium ions and glutathione are kept separate from the basic bicarbonate solution, thus guarding against the physical and chemical degradation which would otherwise occur. It is thus not critical that glutathione be prepared in the same acidic solution as dextrose, magnesium and calcium. 23 Even assuming this portion of Roehrs' affidavit creates a genuine issue of fact as to the equivalency of Entravision's method with step (c) of claim 1, that does not end the matter. Raising a genuine issue as to equivalency with a single step of the claimed method is not enough to survive summary judgment, as stated supra, if no such issue is raised with respect to other steps which are not met. 24 Central to resolution of the infringement question is the meaning of the claim term "prepackaged," which appears in steps (b), (d), (f) and (g). Claim interpretation is a question of law amenable to summary judgment, and disagreement over the meaning of a term in a claim does not necessarily give rise to a genuine issue of material fact. Intellicall, Inc. v. Phonometrics, Inc., 952 F.2d 1384, 1387, 21 USPQ2d 1383, 1386 (Fed.Cir.1992). The specification of the '432 patent does not expressly define "prepackaged," though it states that "[t]he basic solution and the acidic solution are sterilized and separately bottled or contained...." (Emphasis added.) The specification also discloses that "the solutions may be shipped in a container having a first chamber for the basic solution, an isolated second chamber for the acidic solution and means to communicate the chambers without opening the container." (Emphasis added.) The single example set forth in the patent discloses a process comprising preparation of a basic solution which is filtered into glass bottles that are in turn sealed, and in a separate step, preparation of an acidic solution which is filtered into glass vials that are also sealed. Nothing in the '432 specification or its prosecution history indicates that the inventors envisioned anything other than the common sense definition of "prepackaged," exemplified by the act of "sealing" two separate solutions as disclosed in the example. 25 Alcon contends that Entravision's step of sterile filtering a premeasured amount of bicarbonate solution into a bottle is performed "in substantially the same way" as claim step (b), "sterilizing said basic solution and prepackaging said basic solution." (Emphasis added.) As support for this position Alcon relies on (1) Entravision's process description and (2) Dr. Roehrs' March 1, 1991 post-hearing affidavit, wherein he essentially equates "prepackaged" with "premeasured." Roehrs states: 26 [Entravision's method] calls for the prepackaging of the bicarbonate solution by measuring a particular amount, 20 ml, of the solution into a container in which it is shipped and sold. That is, the stable and sterile bicarbonate solution is measured into a final container to obviate the need for extemporaneously preparing the irrigating solution just prior to surgery, as was done in connection with preparation of "GBR" solutions by hospital pharmacists prior to my invention. This constitutes "prepackaging" in the sense that term is employed in the '432 patent-in-suit. 27 We find Roehrs' interpretation of "prepackaged" to be inconsistent both with the '432 specification, as discussed above, and with Roehrs' earlier deposition testimony, in which he stated that the term "prepackage" means "that they're separated. They're each in individual packages, their own individual package." Moreover, where a disputed term in a claim would be understood by one of ordinary skill in the art to have its ordinary meaning on the basis of the patent specification and its prosecution history, extrinsic evidence that the inventor may have intended a different meaning does not preclude summary judgment. Intellicall, 952 F.2d at 1387, 21 USPQ2d at 1386. See also Townsend Eng'g Co. v. HiTec Co., 829 F.2d 1086, 1089, 4 USPQ2d 1136, 1139 (Fed.Cir.1987) (opinion of patentee's officer about the meaning and application of phrases in a claim did not create factual disputes precluding summary judgment). Accordingly, Roehrs' March 1, 1991 affidavit is not sufficient to raise a genuine issue of material fact as to the equivalency of the accused method and claim step (b). For the same reason, neither does it raise a genuine issue of material fact with respect to the equivalency of Entravision's step of pouring a sterilized glutathione solution over the frozen bicarbonate "ice" in the same container with claim step (d), "sterilizing said acidic solution [containing calcium ions, magnesium ions, dextrose and glutathione] and prepackaging said acidic solution." 28 With respect to equivalency of the accused process with claim step (f), "mixing said prepackaged solutions together in a manner which maintains their sterility to form a combined solution ...", Roehrs states in his March 1, 1991 affidavit that "[a]lthough Entravision performs the additional step of lyophilizing the stably prepared basic bicarbonate solution and the stable acidic, glutathione solution, the solutions prepared by Entravision are in effect aseptically mixed together in Step 14 using a transfer spike" (emphasis added). "Step 14" refers to the step of Entravision's process wherein the lyophilized powder (a mixture of bicarbonate and glutathione) is squeezed through a transfer spike into a bottle of acidic solution (containing sodium chloride, potassium chloride, calcium chloride, magnesium chloride and dextrose). This is the totality of the "evidence" proffered as to equivalency of the accused method with claim step (f). Alcon does not attempt to explain how a powder is a "solution," nor cite to anything in the specification or prosecution history that would justify interpreting "solution" broadly enough to include a powder, contrary to the standard definition of a solute in a liquid. 29 We find nothing else in the record, other than conclusory argument, that raises any genuine issue as to equivalency of claim steps (b), (d) and (f) with the corresponding steps of Entravision's process. Therefore, summary judgment of non-infringement was properly granted. 30 We have considered Alcon's remaining arguments, but find them to be without merit, and essentially obfuscations of the central issue of factual equivalency. Alcon's broad-brush, "heart of the invention" approach, by which it studiously avoids dealing with the language of the '432 claims, is not well-taken. Though application of the doctrine of equivalents may be said to extend the protection of a patent beyond the literal words of its claims, those words are not to be ignored: "a court may not, under the guise of applying the doctrine of equivalents, erase a plethora of meaningful structural and functional limitations of the claim on which the public is entitled to rely in avoiding infringement." Perkin-Elmer Corp. v. Westinghouse Elec. Corp., 822 F.2d 1528, 1532, 3 USPQ2d 1321, 1324 (Fed.Cir.1987). 1 It is not disputed that in its final mixed form, the irrigating solution produced by Entravision's process is substantially identical to the irrigating solution produced by the Alcon process. Indeed, this suit began when Alcon learned that Entravision had filed a new drug application with the Food and Drug Administration pursuant to 21 USC 355(b), comparing the product of its proposed system with the already FDA-approved Alcon product, BSS Plus. Under § 355(c)(3)(C), the filing of Alcon's infringement action effectively extended the time for FDA approval of Entravision's application by up to 30 months, though the extension period is terminated when, as here, a court decides that the patent sued on is not infringed	{ "pile_set_name": "FreeLaw" }
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION This opinion shall not "constitute precedent or be binding upon any court." Although it is posted on the internet, this opinion is binding only on the parties in the case and its use in other cases is limited. R. 1:36-3. SUPERIOR COURT OF NEW JERSEY APPELLATE DIVISION DOCKET NO. A-4421-16T1 STATE OF NEW JERSEY, Plaintiff-Respondent, v. DEBRA M. STINSON, Defendant-Appellant. ______________________________ Argued February 27, 2019 – Decided June 13, 2019 Before Judges Accurso, Vernoia and Moynihan. On appeal from Superior Court of New Jersey, Law Division, Ocean County, Indictment No. 15-09-1762. David Anthony Gies, Designated Counsel, argued the cause for appellant (Joseph E. Krakora, attorney; David Anthony Gies, on the briefs). Roberta Di Biase, Supervising Assistant Prosecutor argued the cause for respondent (Bradley D. Billhimer, Ocean County Prosecutor, attorney; Samuel J. Marzarella, Chief Appellate Attorney, of counsel; Roberta Di Biase, on the brief). PER CURIAM Defendant Debra M. Stinson appeals from a judgment of conviction entered after a jury found her guilty of third-degree arson, N.J.S.A. 2C:17- 1(b)(2), a lesser-included offense of the indicted crime, second-degree aggravated arson, N.J.S.A. 2C:17-1(a). Her arguments on appeal relate to pretrial motions she made to suppress her statement to a police officer near the scene of the arson and another statement made at the police station, as well as a motion to bar the State's arson expert's testimony at trial: POINT I THE TRIAL COURT ERRED WHERE IT DID NOT SUPPRESS DEFENDANT'S PRETRIAL STATEMENTS MADE IN RESPONSE TO [THE POLICE OFFICER'S] QUESTIONS WHICH ATTEMPTED TO ELICIT THE ORIGIN AND CAUSATION OF THE FIRE. POINT II THE TRIAL COURT ERRED WHERE IT FOUND THAT DEFENDANT'S CUSTODIAL STATEMENT WAS VOLUNTARY WITHOUT BALANCING THE DETECTIVES' INTERROGATION TECHNIQUES AND DEFENDANT'S MENTAL LIMITATIONS WITH WHICH THEY WERE KNOWLEDGEABLE. POINT III THE TRIAL COURT ERRED WHERE IT DID NOT BAR THE ARSON EXPERT'S TESTIMONY AS TO CAUSATION UPON WHICH HE BASED HIS A-4421-16T1 2 OPINION, AT LEAST IN PART, ON DEFENDANT'S PRETRIAL ADMISSION OF GUILT. The trial court did not err in denying defendant's motions and, as such, we affirm. Defendant made her first statement to a uniformed Manchester Township police officer who responded to a still-active fire in a duplex. The officer ascertained from the first officer on the scene that both units of the duplex had been evacuated and that the resident of Unit A was seated on a bench across the street from the duplex. The officer approached the resident, later identified as defendant, as she was being evaluated by first-aid squad members and asked her to provide pedigree information – name, date of birth, address, phone number and social security number; defendant complied. The officer also asked defendant "if she knew anything about the fire. How it started, you know, if . . . she could tell [him] what happened." According to the officer, defendant replied that she "started a fire in a bucket of shit, and threw it out the window." Finding her response "odd," the officer asked what she meant by that. According to the officer, defendant explained that "she lit plastic bottles on fire, because Lucifer told her to burn all of her good white pants." A-4421-16T1 3 The officer did not ask any other questions. He did not arrest defendant. He left defendant, still seated on the bench, with another officer and met with a detective to whom he disclosed his conversation with defendant. The motion judge, who heard the officer testify at the suppression hearing, found the officer "was not interrogating" defendant but was "simply asking what happened to cause the fire." The judge concluded defendant "was not in police custody and voluntarily confessed her activity in creating the fire without police coercion." Our review of a trial judge's decision on a motion to suppress is limited. State v. Robinson, 200 N.J. 1, 15 (2009). "An appellate court reviewing a motion to suppress evidence in a criminal case must uphold the factual findings underlying the trial court's decision, provided that those findings are 'supported by sufficient credible evidence in the record.'" State v. Boone, 232 N.J. 417, 425-26 (2017) (quoting State v. Scriven, 226 N.J. 20, 40 (2016)). We do so "because those findings 'are substantially influenced by [an] opportunity to hear and see the witnesses and to have the "feel" of the case, which a reviewing court cannot enjoy.'" State v. Gamble, 218 N.J. 412, 424-25 (2014) (alteration in original) (quoting State v. Johnson, 42 N.J. 146, 161 (1964)). We owe no deference, however, to conclusions of law made by trial courts in suppression A-4421-16T1 4 decisions, which we instead review de novo. State v. Watts, 223 N.J. 503, 516 (2015). We disagree with defendant that the officer conducted an investigatory stop without reasonable suspicion, that later escalated "to the even more demanding scenario of an unwarranted seizure of her person requiring Miranda[1] warnings." The evidence establishes that the officer's encounter with defendant was a field inquiry. An officer is not prohibited from approaching a person and engaging in a voluntary conversation – a field inquiry. State v. Stampone, 341 N.J. Super. 247, 252 (App. Div. 2001). "[A] field [inquiry] is not a Fourth Amendment [2] event 'so long as the officer does not deny the individual the right to move.'" State v. Egan, 325 N.J. Super. 402, 409 (Law Div. 1999) (quoting State v. Sheffield, 62 N.J. 441, 447 (1973)); see also State v. Rosario, 229 N.J. 263, 273- 74 (2017) (citing Egan favorably). "A field inquiry is permissible so long as the questions '[are] not harassing, overbearing, or accusatory in nature.'" State v. Pineiro, 181 N.J. 13, 20 (2004) (alteration in original) (quoting State v. Nishina, 1 Miranda v. Arizona, 384 U.S. 436 (1966). 2 U.S. Const. amend. IV; see State v. Handy, 206 N.J. 39, 45-46 (2011) (recognizing that, like the Fourth Amendment, the "parallel language" of N.J. Const. art. I, ¶ 7 protects citizens from unreasonable searches and seizures). A-4421-16T1 5 175 N.J. 502, 510 (2003)). "The officer's demeanor is relevant to the analysis. For example, 'an officer would not be deemed to have seized another if his questions were put in a conversational manner, if he did not make demands or issue orders, and if his questions were not overbearing or harassing in nature. '" State v. Rodriguez, 172 N.J. 117, 126 (2002) (citations omitted) (quoting State v. Davis, 104 N.J. 490, 497 n.6 (1986)). The officer testified defendant was calm when he approached her. He did not limit her movement; in fact, defendant felt comfortable enough to get up from the bench. The officer did not restrict defendant's movement during the encounter. The conversation was brief. The officer did not know the origin of the fire when he approached defendant, so the questions posed to defendant were conversational, not accusatory or pointed; he was evidently surprised by defendant's reply. He did not consider defendant a suspect in the arson until she admitted she set the fire. In short, the officer did nothing to convert that field inquiry to an investigative stop or a seizure. It is of no moment that the officer left defendant in the company of another officer when he left to speak to the detective. He posed no further questions to defendant. Defendant made no other statement to him. The motion to suppress the statements made to the officer was properly denied. A-4421-16T1 6 Defendant also challenges the denial of her motion to suppress the recorded statement she made at the police station to two detectives. The Manchester officer briefed a Manchester detective about the conversation he had with defendant. The Manchester detective and an Ocean County Prosecutor's detective then approached defendant – still seated on the bench – and, after ascertaining that she did not desire any medical attention, asked her if she would go to the police station and provide a statement. Defendant agreed. The video- recorded statement began at 5:37 p.m. and ended at approximately 6:13 p.m. Defendant contends in her merits brief the trial court erred by failing to consider that the detectives "knew of and exploited [defendant's] mental illness" and argues that her statement was not voluntary because "the detectives' custodial interrogation was coercive in light of defendant's mental illness." The motion judge heard the testimony of the Manchester detective, Dr. Kenneth Weiss – a psychiatrist called as a defense expert witness – and viewed the videotaped statement. We review her decision under the standard we have already announced adding only that, because the judge's factual findings were based on her review of the videotaped statement, we review the videotape to verify that the judge's findings were supported by sufficient evidence in the record. State v. Hubbard, 222 N.J. 249, 262-65 (2015). A-4421-16T1 7 "Confessions obtained by police during custodial interrogation are barred from evidence unless the defendant has been advised of his [or her] constitutional rights." State v. Timmendequas, 161 N.J. 515, 613 (1999). Before a defendant's statement is admitted, the State must prove beyond a reasonable doubt that the defendant, in light of all the circumstances, knowingly, intelligently and voluntarily waived his or her Miranda rights. State v. Knight, 183 N.J. 449, 461-63 (2005). The State must also prove beyond a reasonable doubt that a defendant's statement to the police was not the product of coercion or "official misconduct." See Id. at 463. In determining the voluntariness of a defendant's statement, courts consider whether the statement was "'the product of an essentially free and unconstrained choice by its maker,' in which case the statement may be used against the defendant, or whether the defendant's 'will has been overborne and his [or her] capacity for self-determination critically impaired.'" State v. P.Z., 152 N.J. 86, 113 (1997) (quoting Schneckloth v. Bustamonte, 412 U.S. 218, 225- 26 (1973)). "This issue can be resolved only after an assessment of the 'totality of the circumstances' surrounding the statement." Ibid. (quoting Arizona v. Fulminante, 449 U.S. 279, 285-86 (1991)). A-4421-16T1 8 From our review of the record, we discern the motion judge's conclusion that defendant, after knowingly, intelligently and voluntarily waiving her Miranda rights, "was not coerced or intimidated by police . . . during the interview at the police station" is well supported. Defendant agreed to go to the police station. There police confirmed defendant was not in need of medical attention and provided her with requested water. Although defendant now argues that the detectives ignored her "complain[t] that she had not slept for several days," defendant appeared awake and alert. Defendant responded to the detective's preliminary questions; their conversation was cordial. Defendant listened to the Miranda warnings with, in her words, "[e]ars wide open" and interrupted the administration of rights to tell the detective, "I know that it's in the constitution" and that she had read it in school. When the detective finished reading the rights, defendant acknowledged that she understood the rights and signed the forms agreeing to the waiver. As the motion judge found, defendant – who completed a two-year associate's degree in computer science – seemed "to be of above-average intelligence." Her own expert, Dr. Weiss, acknowledged on cross-examination that defendant had "at least average" intelligence. A-4421-16T1 9 Just after the forms were signed, defendant said, "Oh please, please ask me the one question that I want to get off my chest." Despite defendant's interjected non sequiturs, she thereafter responded to the detectives' questions about the incident, providing details of how she started the fire. Contrary to defendant's contention in her merits brief, the detectives did not tell "her the facts they wanted to know and she agreed." Defendant and the detectives spoke calmly; their voices were not raised. The detectives' questions were not at all coercive; they were patient and non-threatening. Dr. Weiss opined defendant was having a "manic episode" during the interview and her mental illness prevented her from having "the capacity to sign away her rights knowingly and intelligently." The judge properly rejected that opinion, State ex rel. C.A.H., 89 N.J. 326, 343 (1982), concluding: Even though Dr. Weiss stated in his testimony that he believed [defendant's] mental illness caused her will to be overborne such that she could not understand the implications of waiving her rights, he could not dispute her [orientation as to] person, place and time and of her right to remain silent or request an attorney. The judge noted that defendant "was able to correctly answer questions such as who the President of the United States was, what year it was, [defendant's] address, . . . questions about her family and background," and the extent of her education. A-4421-16T1 10 As we observed in State v. Smith: The fact that defendant was suffering from a mental illness at the time of the questioning did not render his waiver or his statement involuntary. The United States Supreme Court has held that "coercive police activity is a necessary predicate to [a] finding that a confession is not 'voluntary' within the meaning of the Due Process Clause of the Fourteenth Amendment." Colorado v. Connelly, 479 U.S. 157, 167 (1986). The Court stressed that the "Fifth Amendment privilege is not concerned 'with moral and psychological pressures to confess emanating from sources other than official coercion.'" Id. at 170 (quoting Oregon v. Elstad, 470 U.S. 298, 304-05 (1985)). "The voluntariness of a waiver of this privilege [was said to] depend[] on the absence of police overreaching, not on 'free choice' in any broader sense of the word." Ibid. The Court added that "the relinquishment of the right [to remain silent] must have been voluntary in the sense that it was the product of a free and deliberate choice rather than intimidation, coercion or deception. . . ." Ibid. (citing Moran v. Burbine, 475 U.S. 412, 421 (1986)). [307 N.J. Super. 1, 10-11 (App. Div. 1997) (alterations in original).] Nothing in the record supports defendant's contention that the detectives exploited defendant's mental illness or employed coercion to obtain her statement. The totality of the circumstances supports the motion judge's findings that, despite her mental illness, defendant's waiver of Miranda rights and her statement were made knowingly, intelligently and voluntarily. We find no reason to disturb the judge's findings or conclusion. A-4421-16T1 11 Defendant urges that the trial court erred in allowing the State's arson expert to testify, based in part on defendant's statement to police, that the c ause of the fire was incendiary. Conceding in her merits brief that the expert "may have been able to testify permissibly that based on his special knowledge and experience by the process of elimination the objective characteristics of the scene show the fire was intentionally set, [she avers] he is not able to testify that based on defendant's admission of guilt the fire was incendiary." After opining that the origin of the fire was "inside the living room of the structure and the point of origin [was] inside the plastic pot, more specifically on top of the humidifier," the State's expert testified on direct examination about the cause of the fire: Prosecutor: And how do you get to the opinion as to the cause of the fire? Detective: The cause of the fire is determined through the scientific method, which I went over earlier, the multiple stages of that with the hypothesis and testing the hypothesis, and going through the process of elimination where I went through the many photos last week that showed that I eliminated the electrical in that room and all the other major utilities within that structure. Prosecutor: What did you use as far as getting to your opinion as the cause of the fire? Did you review items? A-4421-16T1 12 Detective: Yes. It's based on the scene examination itself, but it's also based off of all police reports that were conducted that day, all photographs, all statements regarding witnesses. . . . Also the Defendant's statement[] itself. And based on my training and experience, I was able to determine a cause of the fire. Prosecutor: And what is – can you tell the jury what your opinion is as to the cause of the fire? Detective: That it's incendiary. It was intentionally set by a person using an open flame to available combustibles, such as a pair of white pants and various other cardboard products and any other combustibles that were located with inside that plastic pot. The record belies defendant's argument. Although the expert reviewed defendant's statement – together with many other documents and photographs – he did not say that he relied on defendant's admission of guilt. He never testified that defendant intentionally set the fire. His conclusion that the fire was intentionally set was based on the elimination of other sources, see Creanga v. Jardal, 185 N.J. 345, 356 (2005) (discussing how an expert may use process of elimination to come to his or her conclusion); see also State v. Sharp, 395 N.J. Super. 175, 181-82 (Law Div. 2006) (allowing an opinion on the causation of fire based on a process of elimination), and his examination of the scene and documentary and photographic evidence, State v. Townsend, 186 N.J. 473, 494 (2006) (holding expert opinions must be grounded in "facts or data derived from A-4421-16T1 13 (1) the expert's personal observations, or (2) evidence admitted at the trial, or (3) data relied upon by the expert which is not necessarily admissible in evidence but which is the type of data normally relied upon by experts in forming opinions on the same subject" (quoting Biunno, N.J. Rules of Evidence, cmt. 1 on N.J.R.E. 703 (2005))). "The admission or exclusion of expert testimony is committed to the sound discretion of the trial court." Townsend v. Pierre, 221 N.J. 36, 52 (2015). We afford deference "to a trial court's decision to admit expert testimony, reviewing it against an abuse of discretion standard." Id. at 53 (quoting Pomerantz Paper Corp. v. New Cmty. Corp., 207 N.J. 344, 371-72 (2011)). We conclude the trial judge did not abuse her discretion in admitting the arson expert's testimony. Affirmed. A-4421-16T1 14	{ "pile_set_name": "FreeLaw" }
187 Kan. 695 (1961) 359 P.2d 856 HARRY H. CLARK, Appellee, v. THE BOARD OF REVIEW OF THE EMPLOYMENT SECURITY DIVISION OF THE LABOR DEPARTMENT OF THE STATE OF KANSAS, L.M. WELTMER, LLOYD V. HARMON and M.R. LEE, as Members of said Board, Appellants, and the SKELLY OIL COMPANY, a Corporation, Defendant. No. 42,064 Supreme Court of Kansas. Opinion filed March 4, 1961. Joseph S. Payne, of Kansas City, was on the brief for the appellants. No appearance or brief for the appellee. The opinion of the court was delivered by PRICE, J.: This case involves the question of eligibility for benefits under the Employment Security Law found at G.S. 1949, 44-701, et seq., and amendments thereto in G.S. 1959 Supp. The appeal is by the Employment Security Board of Review (hereafter referred to as the board) from a decision of the district court reversing, in part, an order of the board. On June 30, 1959, Harry H. Clark, the claimant, having reached the mandatory retirement age of sixty-five, was retired from his employment as a billing clerk with the Skelly Oil Company in El Dorado, after having served the company in that capacity for twenty-nine years. At the time of his retirement his minimum wage was $2.70 an hour. Prior to his employment by Skelly he had worked as a "roustabout," tank-wagon driver, and in filling station and garage work. Upon his retirement he received a company pension from Skelly of $124.50 per month. In addition, he was entitled to social security benefits of $116 per month provided he did not earn in excess of $100 per month. Claimant filed his initial claim for unemployment benefits on July 14, 1959. The claims examiner held that he was not "available for work" and therefore was ineligible for benefits. Claimant filed an appeal to the referee, and the matter came regularly on for hearing on October 8, 1959, at which hearing sworn testimony was taken. On October 16, 1959, the referee filed his written decision in the matter, in which, after carefully reviewing the evidence, he held that claimant was not "available for work" from August 9, 1959, through October 10, 1959, and, in addition, found that claimant 697 had not made "reasonable efforts to obtain work" during that period and therefore was ineligible for unemployment benefits during such period. On October 20, 1959, claimant appealed to the board from the decision of the referee, and on December 8, 1959, the board, after a review of the record of the evidence before the referee, affirmed the decision of that official. Claimant then, pursuant to the provisions of G.S. 1959 Supp. 44-709 (h), appealed to the district court of Butler county. Issues were joined by the pleadings, and on March 8, 1960, the court, after reviewing the record previously made, found and held: "The Court further finds that there was some evidence that plaintiff was not available for work until September 21, 1959, but that thereafter plaintiff was available for work at all times and that as a matter of law the Court should find that the Board should be sustained in its findings up to the date of September 21, 1959, and thereafter reversed to allow claimant benefits." In other words, the board found that during the period from August 9, 1959, through October 10, 1959, claimant (1) was not available for work, and (2) had not made reasonable efforts to obtain work and therefore was ineligible for unemployment benefits. On appeal, the district court found that during the period from August 9, 1959, to September 21, 1959, claimant was not available for work and therefore ineligible to receive benefits for that period, and further found that following September 21, 1959, claimant was available for work at all times and therefore entitled to benefits commencing with that date. It is to be noted the district court made no finding with respect to the question whether during the period under consideration claimant had made "reasonable effort to obtain work." As previously stated, the board has appealed from that portion of the district court's judgment allowing benefits to claimant after September 21, 1959. The Skelly Oil Company is not a party to the appeal. At this point reference should be made to three provisions of the Employment Security Law. G.S. 1949, 44-702, declares protection against involuntary unemployment to be the "public policy of this state." Insofar as here material, G.S. 1959 Supp. 44-705, provides: "An unemployed individual shall be eligible to receive benefits with respect to any week only if the commissioner finds that: ... (c) He is able to work, is available for work, and is making reasonable efforts to obtain work: ..." 698 G.S. 1959 Supp. 44-709 (h), which deals with court review of a decision of the board, provides that in any judicial proceeding thereunder, findings of the board, as to the facts, if supported by evidence and in the absence of fraud, shall be conclusive, and the jurisdiction of the court shall be confined to questions of law. Taken together, then, the three mentioned statutes mean that (1) the basic concept of the act, and declared to be the public policy of the state, is to protect against involuntary unemployment that is, to provide benefits for those who are unemployed through no fault of their own and who are willing, anxious and ready to support themselves and their families, and who are unemployed because of conditions over which they have no control; (2) an unemployed person shall be eligible to receive benefits only if it is found that he is able to work, is available for work, and is making reasonable efforts to obtain work, and (3) upon court review, findings of the board as to the facts, if supported by evidence and absent fraud, are conclusive. It is conceded that at all times material the claimant was "able to work." The question, therefore, narrows down to whether the board's findings that from August 9, 1959, through October 10, 1959, claimant was not "available for work" and had not made "reasonable efforts to obtain work," are supported by evidence. This necessarily leads to a brief discussion of the meaning of the last two mentioned phrases. Although the matter appears not to have been passed upon directly in any previous decision of this court, counsel for the board in his brief has cited numerous decisions from other jurisdictions and text-book authority on the question. In the interest of brevity the many citations will not be referred to specifically, but we summarize what appear to be sound and logical rules relating to the definition of the phrases in question. Although the phrase "available for work" is not susceptible of precise definition, it should be taken in its ordinary and usual sense, and the fulfillment of such requirement found in employment security laws depends largely on the facts and circumstances of the particular case, considered in the light of the purpose of the legislation. Generally speaking, the requirement is satisfied when an unemployed individual is willing, able and ready to accept suitable work or employment which he does not have good cause to refuse that is, "availability" is a test of one's current and continued attachment 699 to the labor force, for if one is to be compensated for loss of income under a compulsory contribution system there must be assurance that he is available for work and ready to accept employment. This does not mean, however, that one is "available for work," within the meaning of the law, if he imposes such restrictions and contingencies upon the conditions of employment as would reasonably preclude his finding work. In other words, the law does not guarantee to anyone a job identical in kind, location, salary and hours with that which he previously held, and one who is willing to accept employment only on his own terms and choosing does not have a genuine attachment to the labor market and cannot be considered as "available for work." As in the case of the phrase "available for work," the words "reasonable efforts to obtain work" are not susceptible of precise definition, and their meaning depends largely upon the facts and circumstances of the particular case. One cannot claim employment security benefits indefinitely because he is not offered work paralleling his former job, or because he will search only for such employment. While the employment offered generally must be one for which a claimant is reasonably fitted by training and experience, the law does not contemplate that a job must seek out the individual and coax him to work. Rather, it presupposes, and in fact specifically states, that in order to be entitled to benefits a claimant must make reasonable efforts to obtain work all of which means that he must be more than "passively available and waiting for work." One of the tests is whether the facts show that a claimant sincerely wants work and has acted in a reasonable manner, under his circumstances, in trying to relieve his unemployment. Measured by what has been said are the board's findings that during the period from August 9, 1959, through October 10, 1959, claimant was not available for work and had not made reasonable efforts to obtain work, supported by the evidence? We think they are. Without detailing the evidence, it appears to be clear that during the period in question claimant's unemployment was caused by his self-imposed restrictions and conditions with respect to salary, conditions, and type of work, and which he had been advised and knew would, for a person of his age, experience and background, preclude him from obtaining work in the locality. It is true that on September 21, 1959, claimant expressed his willingness to work 700 for a much lower wage than he previously had held out for, but, in view of the entire record, which showed the infrequent attempts to obtain work at wages and under conditions which he knew was not obtainable, his belated and revised idea of acceptable pay, coupled with only one application thereafter, did not constitute a good-faith expression of availability, and did not constitute reasonable efforts to obtain work within the meaning of the law. In a case such as this the burden of proof is on a claimant to establish that he is entitled to receive the benefits claimed. The legislature has seen fit to impose certain limitations and benefit eligibility conditions (G.S. 1959 Supp. 44-705). Restrictions are of course necessary, and those imposed do not appear to be so harsh or punitive in nature as to defeat the basic concept of the legislation. What is here said and held is not to be construed as denying benefits to one who is unemployed through no fault of his own, and who is willing, anxious and ready to support himself and his family provided, of course, he is otherwise eligible under the law and has complied with its requirements. On the other hand, the purpose of the law to protect against involuntary unemployment can be accomplished only by protecting the interests of both the employer and employee. This can be done by allowing benefits only when a claimant comes within the provisions of the law and disallowing them when he does not. The findings of the board as to the facts being supported by evidence there being no hint or suggestion of fraud are by the statute (G.S. 1959 Supp. 44-709 [h]) conclusive on judicial review. In Read v. Warkentin, Commissioner, 185 Kan. 286, 341 P.2d 980, we quoted with approval (p. 290) the applicable rule as to the function of appellate review in a case of this kind laid down in Craig v. Kansas State Labor Commissioner, 154 Kan. 691, 121 P.2d 203, where it was said: "... Under the statute the function of the district court on appeal to it, and of this court on subsequent appeal, is not to find facts, but only to determine whether facts found are supported by the evidence before the administrative body...." (p. 694.) It follows, therefore, that the judgment of the district court holding that from and after September 21, 1959, claimant was "available for work" and therefore entitled to benefits, must be and is reversed.	{ "pile_set_name": "FreeLaw" }
FOR PUBLICATION UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT ROBERT J. MACLEAN,  Petitioner, No. 06-75112 v.  MSPB No. 0752-06-0611 DEPARTMENT OF HOMELAND SECURITY, OPINION Respondent.  On Petition for Review of an Order of the Transportation Safety Administration Argued and Submitted July 17, 2008—San Francisco, California Filed September 16, 2008 Before: Jerome Farris, Eugene E. Siler, Jr.,* and Carlos T. Bea, Circuit Judges. Per Curiam Opinion *The Honorable Eugene E. Siler, Jr., Senior United States Circuit Judge for the Sixth Circuit, sitting by designation. 12997 13000 MACLEAN v. DEPARTMENT OF HOMELAND SECURITY COUNSEL Peter H. Noone, Esq., Avery, Dooley, Post & Avery, LLP, Belmont, Massachusetts, for Robert J. MacLean, petitioner. Eric Fleisig-Greene (argued), Appellate Staff, Department of Justice, Civil Division, Washington, D.C.; Peter D. Keisler, Assistant Attorney General, Department of Justice, Washing- ton, D.C.; and Douglas N. Letter, Appellate Staff, Department of Justice, Civil Division, Washington, D.C., for the Depart- ment of Homeland Security, respondent. OPINION PER CURIAM: Robert J. MacLean petitions for review of an order issued by the Transportation Safety Administration. He contends that the order violates: (1) the TSA’s own regulations, (2) the Whistleblower Protection Act, (3) the Anti-Gag statute, (4) due process, and (5) the rule against retroactive administrative adjudication. We deny the petition. BACKGROUND In late July, 2003, while working as a Federal Air Marshal in Nevada, MacLean received a text message on his government-issued cell phone stating that “all RON (Remain Overnight) missions . . . up to August 9th would be cancel- led.” This message indicated to MacLean that there would be no Federal Air Marshals on overnight flights from the time of MACLEAN v. DEPARTMENT OF HOMELAND SECURITY 13001 the text message up to August 9, 2003. MacLean believed that the cancellation of these missions was detrimental to public safety. He raised this concern with his supervisor, who did not make further inquiry. MacLean then attempted unsuccessfully to alert the Office of Inspector General. On July 29, 2003, MacLean disclosed the text message to members of the press. The Federal Air Marshal Service later confirmed that the text message’s contents did not reflect a final decision of its direc- tor and there was no cancellation of overnight missions. On September 13, 2005, the Department of Homeland Security issued a notice of proposed removal to MacLean. The agency alleged that MacLean’s disclosure of the text message on July 29, 2003, violated 49 C.F.R. § 1520.7(j) (2003), which barred the disclosure of “sensitive security information.” MacLean appealed his termination to the Merit Systems Protection Board. During the proceedings before the MSPB, the Transporta- tion Safety Agency issued a final order on August 31, 2006, regarding the text message. The order determined simply that, under the regulations in place in 2003, 49 C.F.R. § 1520.7(j), the text message contained “sensitive security information.” There was no notice and comment period or other opportunity for MacLean to present evidence before the TSA issued the order. MacLean timely appealed the TSA’s order. The MSPB has dismissed MacLean’s appeal without prejudice pending the outcome of the appeal. DISCUSSION I. Jurisdiction Pursuant to 49 U.S.C. § 46110(c), we have jurisdiction to review only final agency “orders.” We give “broad construc- tion to the term ‘order’ in” § 46110, Gilmore v. Gonzales, 435 F.3d 1125, 1132 (9th Cir. 2006), cert. denied, 127 S. Ct. 929 (2007), but the TSA’s classification of its own order as a 13002 MACLEAN v. DEPARTMENT OF HOMELAND SECURITY “final order” does not control our review, see San Diego Air Sports Ctr., Inc. v. FAA, 887 F.2d 966, 968 (9th Cir. 1989). Generally, an order under § 46110 is reviewable if it “ ‘carries a note of finality, and applies to any agency decision which imposes an obligation, denies a right, or fixes some legal rela- tionship.’ ” Gilmore, 435 F.3d at 1132 (quoting Crist v. Leippe, 138 F.3d 801, 804 (9th Cir. 1998)). We have explained that an agency decision qualifies as a final “order” under 49 U.S.C. § 46110 if it possesses four qualities: (1) it is supported by a “reviewable administrative record,” (2) it is a “ ‘definitive’ statement of the agency’s position,” (3) it has a “ ‘direct and immediate effect’ on the day-to-day business on the party asserting wrongdoing,” and (4) it “ ‘envisions immediate compliance with [the order’s] terms.’ ” See id. (quoting Crist, 138 F.3d at 804). We have jurisdiction to review the TSA order. First, the order is supported by a reviewable record, despite being only two pages. See id. at 1133 (a record may be adequate even if “little more than a letter” (internal quotation omitted)). Sec- ond, the order is a definitive statement of the TSA’s position regarding the contents of the text message. Third, the order has an immediate and prospective impact on MacLean’s chal- lenge to his termination before the MSPB, despite the fact it applies to a three year-old text message. Fourth, the order requires compliance with its terms, especially in regards to the MSPB proceedings. The order “fixes some legal relationship” between MacLean and the agency and “carries a note of final- ity.” Id. (citation omitted). II. Standard of Review We review de novo legal questions raised by the TSA’s order. See S. Cal. Aerial Advertisers’ Ass’n v. FAA, 881 F.2d 672, 677 (9th Cir. 1989). We review the TSA’s findings for substantial evidence. See 49 U.S.C. § 46110(c). We may set aside the order if it is unconstitutional, contrary to law, arbi- trary and capricious, ultra vires, or unsupported by substantial MACLEAN v. DEPARTMENT OF HOMELAND SECURITY 13003 evidence, see 5 U.S.C. § 706(2)(A)-(E), but we must also accord deference to an agency’s interpretation of its own reg- ulations, see Alhambra Hosp. v. Thompson, 259 F.3d 1071, 1074 (9th Cir. 2001). We may “affirm, amend, modify, or set aside any part of the order and may order the Secretary . . . to conduct further proceedings.” 49 U.S.C. § 46110(c). III. Permissible Agency Adjudication MacLean contends that the TSA order is an incorrect appli- cation of 49 C.F.R. § 1520.7(j) (2003) and is unsupported by substantial evidence. We disagree. [1] Section 1520.7(j) (2003) designates as “sensitive secur- ity information . . . [s]pecific details of aviation security mea- sures . . . applied directly by the TSA . . . [which] includes, but is not limited to, information concerning specific numbers of Federal Air Marshals, deployments or missions, and the methods involved in such operations.” Information falling within this designation is automatically considered “sensitive security information” without further action from the TSA. 49 C.F.R. § 1520.7 (2003). The TSA has authority to designate information as “sensitive security information” pursuant to 49 U.S.C. § 114(s) and 49 C.F.R. § 1520. [2] The information contained in the text message qualifies as “sensitive security information.” The message contained “specific details of aviation security measures” regarding “de- ployment and missions” of Federal Air Marshals. 49 C.F.R. § 1520.7(j) (2003). That there could have been more specific information in the message does not undermine this determi- nation. See id. Given the deference owed to the agency, “an alternate reading is [not] compelled by the regulation’s plain language.” See Alhambra Hosp., 259 F.3d at 1074 (quotation marks omitted). [3] The order is also supported by substantial evidence. As we have stated, a record may be adequate even if it is “little 13004 MACLEAN v. DEPARTMENT OF HOMELAND SECURITY more than a letter.” Gilmore, 435 F.3d at 1133. The TSA demonstrated an adequate factual basis on which to make its unremarkable determination that the text message contained “sensitive security information.” MacLean has failed to dem- onstrate what more the TSA needed to show to support the order. The order is valid. IV. Whistleblower Protection Act MacLean contends that the order violates the Whistle- blower Protection Act, 5 U.S.C. § 2302, by punishing him for making a protected disclosure. [4] The Whistleblower Protection Act forbids the govern- ment from taking a “personnel action” against an employee who discloses information that the employee believes evi- dences: (i) a violation of law, rule, or regulation, or (ii) gross mismanagement, a gross waste of funds, an abuse of authority, or a substantial and specific danger to pub- lic health or safety, if such disclosure is not specifically prohib- ited by law and if such information is not specifically required by Executive order to be kept secret in the interest of national defense or the conduct of foreign affairs. . .. 5 U.S.C. § 2302(b)(8)(A). A “personnel action” includes disciplinary and corrective actions and removal actions. 5 U.S.C. § 2302(a)(2)(A)(iii); see 5 U.S.C. § 7512(1). [5] The Whistleblower Protection Act does not apply to the order. The order is not a “personnel action,” as required by the Act.1 It is merely a determination that the text message 1 Our review is jurisdictionally limited to the scope of the TSA’s order. Accordingly, we do not consider whether MacLean was correctly termi- MACLEAN v. DEPARTMENT OF HOMELAND SECURITY 13005 contained “sensitive security information” pursuant to 49 C.F.R. § 1520.7(j). The fact that the order has some impact on MacLean’s proceedings before the MSPB does not convert it to a “personnel action.” We deny MacLean’s claim. V. Anti-Gag Statute MacLean contends that the order violates an appropriations bill known as the “Anti-Gag statute,” Pub. L. No. 109-115, § 820, 119 Stat. 2396, 2500-2501 (2005). [6] A private party may not sue under federal law unless it provides an express or implied cause of action. See Williams v. United Airlines, Inc., 500 F.3d 1019, 1021-23 (9th Cir. 2007). We look to congressional intent to determine whether an act contains an implied private cause of action. See id. at 1023. The Anti-Gag statute is an uncodified appropriations measure that provides no express cause of action. The rele- vant portion of the statute is a budgetary requirement that for- bids the appropriation of funds “to implement or enforce the agreements in Standard Forms 312 and 4414 of the Govern- ment or any other nondisclosure policy, form, or agreement” unless a specific disclaimer is added. 119 Stat. at 2500. [7] We also find nothing to support a holding that the Anti- Gag statute contains an implied cause of action, and MacLean has failed to make this argument. Thus, MacLean has not stated a claim on which relief may be granted. Even assuming that such a cause of action exists, MacLean has not demonstrated that the order is a “nondisclosure policy, form, or agreement” to which the statute could apply. Id. nated under the rules and regulations governing valid personnel actions, including the Whistleblower Protection Act. All such contentions may be brought before the MSPB in MacLean’s challenge to his termination in that tribunal. 13006 MACLEAN v. DEPARTMENT OF HOMELAND SECURITY VI. Due Process MacLean contends that the order violates due process by denying him the opportunity to raise objections during a notice and comment period before the order issued. [8] Due process protects against the deprivation of “life, liberty, or property.” U.S. Const. amend. V. “Procedural due process imposes constraints on governmental decisions which deprive individuals of ‘liberty’ or ‘property’ interests within the meaning of the Due Process Clause of the Fifth or Four- teenth Amendment.” Mathews v. Eldridge, 424 U.S. 319, 332 (1976). “To be entitled to procedural due process, a party must show a liberty or property interest in the benefit for which protection is sought.” Greenwood v. FAA, 28 F.3d 971, 975 (9th Cir. 1994) (citing Morrissey v. Brewer, 408 U.S. 471, 480-81 (1972)). A notice and comment period is gener- ally required for agency rulemaking, but not for adjudications. See 5 U.S.C. § 553; Yesler Terrace Cmty. Council v. Cisne- ros, 37 F.3d 442, 448 (9th Cir. 1994). An agency adjudication may require a notice and comment period if it constitutes de facto rulemaking that “affects the rights of broad classes of unspecified individuals.” Cisneros, 37 F.3d at 448. [9] MacLean is not entitled to procedural due process. The order was the result of an agency adjudication, see 5 U.S.C. § 551(7) (defining an adjudication as an “agency process for the formulation of an order”), and does not directly deprive him of any liberty or property interests in his position as a Federal Air Marshal. It merely designates information as “sensitive security information,” which has only a tangential relation to MacLean’s interest in his position as an Air Mar- shal. MacLean may still contest his termination before the MSPB, where he may raise the Whistleblower Protection Act and contend that the lack of clarity of the TSA’s 2003 “sensi- tive security information” regulations is evidence MacLean disseminated the text message under a good faith belief the MACLEAN v. DEPARTMENT OF HOMELAND SECURITY 13007 information did not qualify as “sensitive security informa- tion.” Likewise, the order did not affect the rights of a “broad class” of people, so no notice and comment period was required. See Cisneros, 37 F.3d at 448. VII. Retroactive Agency Adjudication Relying on Bowen v. Georgetown Univ. Hosp., 488 U.S. 204 (1988), MacLean contends that the order is an impermis- sible retroactive agency action. However, “[r]etroactivity is not favored in the law.” Id. at 208. As a rule, “congressional enactments and administrative rules will not be construed to have retroactive effect unless their language requires this result.” Id. [10] The TSA order does not constitute a retroactive agency adjudication. Rather, the agency applied regulations that were in force in 2003 to determine that information cre- ated in 2003 was “sensitive security information.” This differs from Bowen, where the Court held that the Department of Health and Human Services could not apply a new rule requiring private hospitals to refund Medicare payments for services rendered before the rule existed. See id. at 208-09, 215-16. The TSA order comports with the “principle that the legal effect of conduct should ordinarily be assessed under the law that existed when the conduct took place.” Landgraf v. USI Film Prods., 511 U.S. 244, 265 (1994) (internal quotation omitted). We reject MacLean’s claim. PETITION FOR REVIEW DENIED.	{ "pile_set_name": "FreeLaw" }
510 U.S. 882 Messa-Perezv.United States. No. 93-5216. Supreme Court of United States. October 4, 1993. 1 Appeal from the C. A. 11th Cir. 2 Certiorari denied. Reported below: 990 F. 2d 1267.	{ "pile_set_name": "FreeLaw" }
United States Court of Appeals Fifth Circuit F I L E D IN THE UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT August 28, 2006 Charles R. Fulbruge III Clerk No. 05-60853 Conference Calendar CARL WATTS, Plaintiff-Appellant, versus ANTHONY H. OGLESBY, Defendant-Appellee. -------------------- Appeal from the United States District Court for the Southern District of Mississippi USDC No. 4:05-CV-123 -------------------- Before DAVIS, SMITH, and WIENER, Circuit Judges. PER CURIAM:* Carl Watts, Mississippi prisoner # 77138, appeals the 28 U.S.C. § 1915(e)(2)(B)(ii) dismissal for failure to state a claim of his 42 U.S.C. § 1983 lawsuit against his court-appointed counsel in a criminal matter. Although he renews the allegations of his complaint, Watts does not challenge the district court’s conclusion that his claims were improperly brought in a § 1983 action, were barred by Heck v. Humphrey, 512 U.S. 477 (1994), or failed for lack of state action. By failing to brief any * 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. 05-60853 -2- argument challenging the district court’s reasons for dismissal, Watts has abandoned the only grounds for appeal. See Yohey v. Collins, 985 F.2d 222, 224-25 (5th Cir. 1993). The appeal is wholly without arguable merit, is frivolous, and is therefore dismissed. See 5TH CIR. R. 42.2; Howard v. King, 707 F.2d 215, 219-20 (5th Cir. 1983). The district court’s dismissal of Watts’ complaint counts as a strike for purposes of 28 U.S.C. § 1915(g), as does the dismissal of the instant appeal. See Adepegba v. Hammons, 103 F.3d 383, 387-88 (5th Cir. 1996). Watts has accumulated two strikes in Watts v. Bailey, No. 05-60822 (5th Cir. Aug. 25, 2006). Because Watts has now accumulated more than three strikes, he is barred from proceeding in forma pauperis in any civil action or appeal filed while he is incarcerated or detained in any facility unless he is under imminent danger of serious physical injury. See 28 U.S.C. § 1915(g). DISMISSED AS FRIVOLOUS; 28 U.S.C. § 1915(g) BAR IMPOSED.	{ "pile_set_name": "FreeLaw" }
36 Wn. App. 405 (1984) 675 P.2d 246 THE STATE OF WASHINGTON, Appellant, v. KEN E. BIRCH, Respondent. No. 5843-3-III. The Court of Appeals of Washington, Division Three. January 10, 1984. Jeffrey C. Sullivan, Prosecuting Attorney, and Howard W. Hansen, Deputy, for appellant. J. Adams Moore, Jr., and Dobbs, Moore & Kirkevold, for respondent. MUNSON, C.J. The State appeals the trial court's dismissal of three counts of first degree theft[1] and one count of second degree theft[2] against Ken E. Birch. Based on State v. Eberhart, 106 Wash. 222, 179 P. 853 (1919), the court held as a matter of law a partner could not be charged with embezzling partnership funds because the partner would not be exerting unauthorized control over the property of another.[3] We affirm, believing this issue is better left to the Legislature. 407 The facts are relatively simple. Richard DeLong and Ken Birch formed Birch-DeLong Construction Company in 1972 as a joint adventure. In their contract, they agreed to the following term: All proceeds received by the joint venture from the sale of any houses or other buildings shall be deposited in a bank as the parties mutually decide and shall be disbursed only on mutual agreement or authorization. Initially, Mr. Birch and Mr. DeLong signed all checks. After 2 years, however, Mr. Birch took over all business accounting and disbursed funds solely on his signature. Mr. DeLong agreed to this change because it was inconvenient for him to find time to sign the checks. The business began well, but in 1979 fell on hard times. The partnership borrowed $60,000 to weather the recession; about 1980, Mr. DeLong began to question disbursements. He received copies of bills and checks and realized Mr. Birch was paying some personal expenses out of partnership funds. Mr. DeLong had not given Mr. Birch permission to disburse these funds. Mr. Birch admitted making these payments. In May of 1981, the partnership filed bankruptcy. In September of 1981, Mr. DeLong reported the disbursement problems to the State. On May 21, 1982, three counts of first degree theft and one count of second degree theft were filed against Mr. Birch. After the State presented its evidence, the trial court granted a motion to dismiss. The State appealed. The State's contentions can be divided into two parts. First, the State asserts other jurisdictions have reinterpreted the "property ... of another" language in the definition of theft to mean property in which another partner has an interest rather than "property ... wholly of another". See, e.g., People v. Pedersen, 86 Cal. App.3d 987, 150 Cal. Rptr. 577 (1978); People v. Sobiek, 30 Cal. App.3d 458, 464, 106 Cal. Rptr. 519, 82 A.L.R.3d 804, cert. denied, 414 U.S. 855, 38 L.Ed.2d 104, 94 S.Ct. 155 (1973). See Model Penal Code § 223.0(7), at 163 (Proposed Official 408 Draft, 1962). Eberhart held a partner cannot be prosecuted for use of partnership property because the theft statute requires the theft be of property of another. The title to partnership property cannot be said to be in another because each partner is the ultimate owner of an undivided interest in all the partnership property, and none of such property can be said, with reference to any partner, "to be the property of another". 9 Ruling Case Law, p. 1281. State v. Eberhart, supra at 225. Under the common law, each partner "`is the ultimate owner of an undivided interest in all the partnership property, ...'" and "`is legally entitled to ... possession, ...'" In re Sanders, 23 Ariz. 20, 23, 201 P. 93, 17 A.L.R. 980, 981 (1921). A partner could therefore misuse partnership property without fear of criminal prosecution. We decline the State's suggestion that we rely on the California decisions. First, for this court to adopt the State's proposed definition, the court must overrule Eberhart. Second, California decisions (and that of most other jurisdictions) are based upon statutes which do not contain language requiring the property to be that of another. People v. Sobiek, supra, was partly decided on this ground. The State next contends the Uniform Partnership Act, adopted in 1945 as RCW 25.04, has changed both the relationship of a partner to the partnership and the relationship of each partner to other partners. Under both the common law and the Uniform Partnership Act, partnerships are treated both as aggregates of individuals and entities distinct from the people involved in the partnership. In re Estate of Finkelstein, 40 Misc.2d 910, 245 N.Y.S.2d 225 (1963); J. Crane & A. Bromberg, Partnership § 3, at 16-25 (1968). At the time Eberhart was decided, the common law indicated each partner's interest in the property of a partnership was as a joint tenant. Annot., Embezzlement by Partner, 17 A.L.R. 982 (1922). This is an aggregate theory because it does not recognize 409 the partnership as a separate entity. The State contends the entity approach is apparent in RCW 25.04.210, which states in pertinent part: (1) Every partner must account to the partnership for any benefit, and hold as trustee for it any profits derived by him without the consent of the other partners from any transaction connected with the formation, conduct, or liquidation of the partnership or from any use by him of its property. (Italics ours.) The "trustee" argument was presented in State v. Eberhart, supra, and rejected by the court at pages 224-25: The statute,[[4]] after covering property in the possession, custody or control as bailee, etc., uses the general term: A person authorized by agreement "to take or hold such possession". By the use of the word "such" in this connection, the words which follow it relate back to the possession, custody and control above mentioned, which is that as bailee, etc. In other words, the person who would be guilty under the general clause must have the possession, custody and control as a bailee, factor, pledgee, etc. In all of the enumerated classes mentioned, the title to the property would be in another. Although RCW 25.04.210 speaks of the partnership as a separate entity, the issue is whether "the title to the property would be in another." The title would not be in another; the statute still retains the aggregate approach under which partners own all partnership property as joint tenants. RCW 25.04.210 is therefore inapplicable. Contra, State v. Sasso, 20 N.J. Super. 158, 89 A.2d 489 (1952) (distinguishable 410 on statutory language). [1] The State contends RCW 25.04.250 imposes limitations upon partners' use of partnership property. RCW 25.04.250 states in pertinent part: Nature of a partner's right in specific partnership property. (1) A partner is co-owner with his partners of specific partnership property holding as a tenant in partnership. (2) The incidents of this tenancy are such that: (a) A partner, subject to the provisions of this chapter and to any agreement between the partners, has an equal right with his partners to possess specific partnership property for partnership purposes; but he has no right to possess such property for any other purpose without the consent of his partners. The theory of tenancy in partnership was developed by the draftsman of the Uniform Partnership Act to deal with problems created by the joint tenancy theory. See Uniform Partnership Act § 25, 6 U.L.A. 327, Official Comment (Master ed. 1969). Under RCW 25.04.250(2)(c), each partner retains his "right in specific partnership property". The partner's interest, however, is subordinated to partnership use of the property for partnership purposes, and the partner gives up the uncontrolled "right to possess such property for any other purpose without the consent of his partners." The State correctly contends RCW 25.04.250 modifies the definition of property of another as it relates to partnership property. We are loath to take such a nebulous concept and reduce it, by judicial opinion, to a criminal rule. "[E]xplicit standards are necessary in order to guard against arbitrary enforcement of the laws." Seattle v. Rice, 93 Wn.2d 728, 731, 612 P.2d 792 (1980). Otherwise, a citizen does not have fair notice of proscribed conduct. A statute relating to larceny by a partner was repealed in 1909. State v. Eberhart, supra at 224. The statute construed in Eberhart remains substantially the same today, even though our Legislature made sweeping revisions in the criminal code in 1976. The Legislature is presumed to be *411 aware of both Eberhart and the adoption of the Uniform Partnership Act. Woodson v. State, 95 Wn.2d 257, 623 P.2d 683 (1980); State v. Turpin, 94 Wn.2d 820, 620 P.2d 990 (1980). The Legislature had the opportunity, therefore, to make theft of partnership funds a crime if it wished by adding "partners" to the list in RCW 9A.56.010(7)(b). It did not do so. The trial court did not err in dismissing the four theft charges. We affirm. GREEN and McINTURFF, JJ., concur. NOTES [1] RCW 9A.56.030 states in pertinent part: "(1) A person is guilty of theft in the first degree if he commits theft of: "(a) Property or services which exceed(s) one thousand five hundred dollars in value; ..." [2] RCW 9A.56.040 states in pertinent part: "(1) A person is guilty of theft in the second degree if he commits theft of: "(a) Property or services which exceed(s) two hundred and fifty dollars in value, but does not exceed one thousand five hundred dollars in value; ..." [3] RCW 9A.56.020 states in pertinent part: "(1) `Theft' means: "(a) To wrongfully obtain or exert unauthorized control over the property or services of another or the value thereof, with intent to deprive him of such property or services; ..." [4] The language in the statute construed in Eberhart is almost identical to the definition contained in RCW 9A.56.010(7): "(7) `Wrongfully obtains' or `exerts unauthorized control' means: "(a) To take the property or services of another; or "(b) Having any property or services in one's possession, custody or control as bailee, factor, pledgee, servant, attorney, agent, employee, trustee, executor, administrator, guardian, or officer of any person, estate, association, or corporation, or as a public officer, or person authorized by agreement or competent authority to take or hold such possession, custody, or control, to secrete, withhold, or appropriate the same to his own use or to the use of any person other than the true owner or person entitled thereto;"	{ "pile_set_name": "FreeLaw" }
82 F.3d 420 NOTICE: Seventh Circuit Rule 53(b)(2) states unpublished orders shall not be cited or used as precedent except to support a claim of res judicata, collateral estoppel or law of the case in any federal court within the circuit.WESTOWNE SHOES, INCORPORATED and, Carl A. Biwer Company, Plaintiffs,Brown Group, Incorporated, Brown Group Retail, Incorporatedand Brown Group International, Incorporated,Defendants-Appellants,v.CITY INSURANCE COMPANY, Intervenor-Appellee. No. 95-2328. United States Court of Appeals, Seventh Circuit. Argued Dec. 5, 1995.Decided April 11, 1996.Rehearing and Suggestion for Rehearing En Banc Denied May 14, 1996. Before WOOD, Jr., COFFEY and MANION, Circuit Judges. ORDER 1 The defendants manufacture shoes including the well-known "Naturalizer" brand. The plaintiffs, who sell "Naturalizers," claim that the defendants breached their contract by, among other things, selling cheap imports under the name "Naturalizer," thus undercutting the market for the real thing. But this case does not get us to the question of whether the shoe fits. Rather, this appeal concerns an insurance company's duty to defend its insured against a business tort and antitrust suit brought by an independent dealer. Because the district court correctly interpreted the insurance policy provisions at issue, we affirm its grant of declaratory judgment to the insurer. I. 2 The Brown companies listed in the caption ("Brown") manufacture, wholesale, and retail women's shoes, including the "Naturalizer" brand. Westowne and Biwer ("Westowne") retailed women's shoes and operated Naturalizer Specialty Stores in several Wisconsin malls. Before June 1987, Brown and Westowne made a series of agreements under which Westowne was authorized to use the "Naturalizer" trade name, to display the "Naturalizer" sign, and to sell women's shoes manufactured by Brown under the "Naturalizer" trade name. Although "Naturalizer" was the principal line of shoes sold in Westowne's stores, Westowne also sold casual shoes manufactured by other companies. 3 In 1987, Brown announced to Westowne a "standard of purity" under which Brown forbade Naturalizer Specialty Stores such as Westowne's to sell any line of shoes other than "Naturalizer." Under this standard, independent retailers such as Westowne could either sell only "Naturalizers" and keep the "Naturalizer" trade name, or continue to sell both "Naturalizer" and non-"Naturalizers" but give up the "Naturalizer" trade name. Westowne claims it wanted to use the name and tried to comply with the purity standard but encountered problems such as insufficient replacement stock and declining sales. Westowne then began to experience financial difficulties. Westowne sought permission to sell non-"Naturalizer" shoes which Brown refused to grant. 4 Westowne eventually sued Brown in Wisconsin state court alleging unfair competition, antitrust violations, misrepresentation, unfair trade practices, false and deceptive marketing practices, and other claims ("the underlying action"). Westowne's far-ranging complaint alleged that Brown's "standard of purity" was unlawful and discriminatory. It alleged that Brown failed to supply Westowne with the casual "Naturalizer" shoes as promised and that Brown's subsidiaries and divisions were competing in Westowne's marketing area and were permitted to sell casual shoes from non-Brown manufacturers. The complaint also asserted that Brown permitted its own stores to sell non-"Naturalizer" shoes, even though Westowne could not, and that Brown charged its own retailers lower prices than Westowne. 5 Brown removed the underlying action to federal court, counterclaimed against Westowne, and tendered defense of the case to its general liability insurer, City Insurance Company ("City Insurance"), which accepted the defense subject to a reservation of rights. City Insurance had issued three Comprehensive General Liability insurance policies to Brown from 1986 to 1989, including fiscal year 1987, the year in question. Each of the City Insurance policies provided Brown with "advertising injury" and "personal injury" coverage. The district court granted City Insurance leave to intervene and it filed an intervenor complaint against Brown relating to insurance coverage. City Insurance later filed a declaratory judgment motion asking the district court to find no insurance coverage as a matter of law. 6 The district court granted City Insurance's motion for declaratory judgment. Brown then moved to alter the judgment and/or for reconsideration of the decision. The district court denied Brown's motion for reconsideration and Brown filed a timely notice of appeal.1 7 The district court had diversity jurisdiction over the underlying case and pendent jurisdiction over the intervenor complaint. This court has jurisdiction under 28 U.S.C. § 1291, as the district court entered final judgment on the intervenor complaint pursuant to Fed.R.Civ.P. 54(b). This court reviews the district court's decision de novo, applying the same summary judgment criteria as the district court. See Scottish Guarantee Ins. Co., Ltd. v. Dwyer, 19 F.3d 307, 309 (7th Cir.1994) (coverage dispute under Wisconsin law concerning insurance policy's personal injury provision).2 II. 8 City Insurance's duty to defend Brown is determined by the allegations in Westowne's complaint. Newhouse v. Citizens Security Mutual Ins. Co., 176 Wis.2d 824, 835-36, 501 N.W.2d 1, 5 (1993). No duty to defend exists if the insuring language does not potentially cover the complaint's allegations. However, if there is any possibility of recovery on any covered claim, an insurer must provide a defense to the entire lawsuit. School Dist. of Shorewood v. Wausau Ins. Co., 170 Wis.2d 347, 366, 488 N.W.2d 82, 88 (1992). 9 This case turns on the interpretation of two provisions of the relevant insurance policies: those insuring against "advertising injury" and those insuring against "personal injury." The district court concluded that neither provision covered Westowne's allegations against Brown in the underlying case. Brown contends that one or both of these provisions covers Westowne's litigation, resulting in a duty to defend by City Insurance. A. "Advertising Injury" Provision 10 The "advertising injury" provision in Brown's insurance policy with City Insurance states: 11 "Advertising injury" means injury arising out of an offense committed during the policy period occurring in the course of the named insured's advertising activities, if such injury arises out of libel, slander, defamation, violation or right of privacy, unfair competition, or infringement of copyright, title, or slogan.... 12 (Emphases supplied.) The district court concluded that the advertising injury provision did not cover the type of unfair competition Westowne alleged in the underlying suit, nor did the allegedly unfair competition take place in the context of advertising activities. In its decision on Brown's reconsideration motion the district court determined that this court's interpretation of "unfair competition" in Curtis-Universal v. Sheboygan Emergency Memorial Services, Inc., 43 F.3d 1119 (7th Cir.1994), did not require reconsideration of its earlier decision. 13 The plain language of the "advertising injury" clause excludes a majority of Westowne's allegations in the underlying action against Brown, including breach of contract, promissory estoppel negligent misrepresentation, strict misrepresentation, and antitrust and statutory unfair trade practices. None of these claims is mentioned as a potential source of liability in the policy. But Westowne does allege in its complaint a count denominated "common law unfair competition," which could potentially fall within the meaning of the "advertising injury" provision. "What is important is not the legal label that the plaintiff attaches to the defendant's (that is, the insured's) conduct, but whether that conduct as alleged in the complaint is at least arguably within one or more of the categories of wrongdoing that the policy covers." Curtis-Universal, 43 F.3d at 1122 (citations omitted). Thus, the first question we face is whether the complaint's allegations fall within the definition of "unfair competition" in the "advertising injury" provision. 14 In Curtis-Universal we found that a complaint alleging (among other things) tortious interference with contractual relations fell within the realm of "unfair competition" as it appeared in an "advertising injury" insurance provision identical to the one before us. 43 F.3d at 1124-25. But we noted that a broad interpretation for unfair competition "cannot be right", as "[i]t would turn insurance against liability for 'advertising injury' into insurance against liability for antitrust violations." Id. at 1123. We stated that "unfair competition" must "bear[ ] its normal legal meaning." Id. at 1123. That would include a variety of tortious misconduct by one competitor toward another, but it also was concerned mainly with harmful speech. Id. at 1123-24. This limitation was important in Curtis-Universal, as we wanted to more narrowly interpret the phrase in light of the word "advertising," rather than broadly as the modern law of business torts might allow. Id. at 1124. Thus, we held in Curtis-Universal that an allegation the defendant "disseminated false information about" the insured stated a claim for unfair competition within the "advertising injury" provision. Id. at 1124. In the context of the case before us, a working definition of "advertising injury" after Curtis-Universal would be "a false or injurious representation disseminated or published in promoting a product." 15 Brown argues certain of Westowne's allegations bring it within this definition, including that (1) Brown engaged in "false and deceptive labeling and other false and deceptive marketing practices" when it attached the "Naturalizer" name to poor quality shoes and offered them at deep discounts to the public, thereby cheapening the Naturalizer name, label and trademark; (2) Brown directly and unfairly competed with Westowne; and (3) the complaint contains three direct references to "advertising." Brown claims these allegations come under "improper solicitation" and "misrepresentation" and therefore fall within the "advertising injury" insuring provision. 16 The complaint alleges that Brown did not supply Westowne with the shoes it promised and that Brown let its retail outlets sell shoes Westowne could not. But these claims describe modern business torts, not allegations concerning harmful speech which we recognized as "advertising injury" in Curtis-Universal. 43 F.3d at 1124. Further, Westowne's advertising claims allege Westowne spent money on advertising before and after Brown adopted the "purity" standard. Such claims do not relate to Brown's insuring of its own advertising activities. 17 The closest Westowne's allegations come to claiming "unfair competition" under the advertising injury provision is the allegation that Brown falsely and deceptively labelled and sold cheaper versions of "Naturalizer" shoes. The district court considered and rejected this possibility on the ground that "marketing" shoes was not the same as "advertising" them. 18 Coverage (and thus a duty to defend) under the advertising liability endorsement requires a showing that the alleged offense occurred in the course of the insured's advertising activities. B.R. Ostrager & T.R. Newman, Handbook on Insurance Coverage Disputes § 7.04[b], p. 284 (8th ed. 1995) (and citations therein). Brown's policy with City Insurance also requires that the offense occur "in the course of the named insured's advertising activities." No allegations concerning Brown's advertising appear anywhere in Westowne's complaint. There is no mention of any published promotional material that Brown used. Westowne makes no claim that the cheaper "Naturalizer" shoes were ever part of an advertising campaign. The mere labelling of cheap shoes is not advertising. Brown's business decision to sell these shoes with the brand name "Naturalizer" is more properly seen as product identification than advertising. Although there is no easy and widespread definition for "advertising activity",3 we can safely conclude that it does not encompass mere product labelling. Without a basis to conclude that the alleged offense occurred in the course of advertising activities by Brown, a finding of potential insurance coverage triggering a duty to defend would not be proper. 19 If we accepted Brown's argument that Westowne's allegations arose from "advertising activity," that phrase would have little meaning. See, e.g., Bank of the West v. Superior Court (Industrial Indem. Co.), 2 Cal.4th 1254, 1276-77, 833 P.2d 545, 560, 10 Cal.Rptr.2d 538, 553-54 (1992) (without causal connection between claims and insured's advertising activities, provision would encompass virtually every claim related to insured's business because "virtually every business that sells a product or service advertises"). Brown's construction of "advertising activity" would produce unreasonable results because it would transform any effort to sell a product into open-ended coverage. An insurance policy shall not be construed so as to produce an unreasonable or absurd result. Olguin v. Allstate Ins. Co., 71 Wis.2d 160, 165, 237 N.W.2d 694, 697 (1978). 20 In its complaint Westowne does not allege damages such as defamation or slander which could arguably be caused by some advertising publication or representation. This distinguishes this case from Curtis-Universal. Instead, Westowne claims purely economic damages. To interpret the "advertising injury" provision as Brown submits would be to take it out of its definition in Curtis-Universal. Brown may be arguing for insurance coverage for antitrust or business tort activity, something this court warned against in Curtis-Universal. 43 F.3d at 1123. This is not the type of conduct for which insurance can be purchased generally and it is certainly not the type for which the "advertising injury" provision contemplated coverage. See Bank of the West, 2 Cal.4th at 1277, 833 P.2d at 560, 10 Cal.Rptr. at 553 ("insureds generally expect to obtain such broad coverage, if at all, only by purchasing several forms of insurance, including coverage for 'errors and omissions liability,' 'directors and officers liability,' 'completed operations and products liability,' and/or other coverages available as part of a CGL policy.") 21 Whether Westowne likes it or not cheap shoes labeled "Naturalizer" are nevertheless "Naturalizers." Simply labeling them as such is an accomplished fact--it is not the result of advertising activity that results in an advertising injury. But even if merely labelling cheap shoes "Naturalizer" and offering them for sale could be construed as "advertising activity," other courts interpreting this provision still require that the offense itself arise out of the advertising activity. See Handbook on Insurance Coverage Disputes at p. 286 (and citations therein). Here the actual sale of the shoes to consumers, not their labelling, allegedly caused Westowne's damages. Westowne filed suit claiming economic damages, such as lost profits, and an inferior competitive position because of Brown's actions. These damages resulted from the sale of the cheaper "Naturalizer" shoes, not their labelling. Accordingly, Brown has also failed to establish a causal connection between Westowne's claimed damages and what Brown characterizes as the "advertising activity." 22 For the same reasons, we reject Brown's attempt to squeeze Westowne's allegations concerning trademark infringement into this court's interpretation of "unfair competition" in Curtis-Universal. 43 F.3d at 1123. Westowne's claim that it built up the "Naturalizer" trademark only to have it devalued by Brown's actions not only was ruled on in Brown's favor on summary judgment, but it does not fit into this court's interpretation of "unfair competition" in Curtis-Universal as dissemination of false information about the insured. 43 F.3d at 1124. 23 We agree with the district court's conclusions that no causal connection exists between Westowne's claimed damages and any "advertising activity" or even what Brown characterizes as "advertising activity." Westowne's complaint thus does not allege any offense potentially covered by the "advertising injury" insuring provision, and City Insurance did not need to defend Brown based upon that provision. B. "Personal Injury" Provision 24 The "personal injury" provision in Brown's insurance policy with City Insurance states: 25 Personal injury means, (1) Bodily injury, (2) Any injury a natural person may suffer to his person, reputation, character or feelings, and (3) any injury to intangible property sustained by any organization, including but not limited to false arrest, false eviction, malicious prosecution, tortuous [sic] intereference [sic] with contractual rights, libel, slander or defamation; but the term Personal Injury does not include under subdivision (2) and (3) any injury arising out of discrimination by reason of race, color, or creed which is unlawful under State or Federal Law. 26 (Emphasis supplied.) 27 The district court reviewed the history of this provision, including language Brown drafted which later became part of the standard policy. It noted its sloppy draftsmanship and attempted to give a reasonable construction to its language. The district court interpreted the provision to mean that the causes of action listed after the "injury to intangible property" clause "are meant only to relate to, and are therefore a limited extension of, those already enumerated." The district court rejected Brown's assertion that this provision covered any injury to intangible property sustained by any organization however caused. It did so because it interpreted the enumerated causes of action as claims based on injuries uniquely suffered by individuals rather than by organizations. According to the court, this interpretation was "the only one which treats the enumeration as something more than mere surplusage, and recognizes that while the manuscripted endorsement did indeed expand the coverage beyond the original narrow version, it expanded it to a limited extent." 28 On Brown's motion for reconsideration the district court reaffirmed its ruling. It did not find the personal injury provision ambiguous in its original decision, but interpreted it according to standard rules of construction. Alternatively the lower court related how if it had found the provision ambiguous, it would be construed against Brown as the drafter, and how the record evidence established that the provision was not intended to cover an unlimited number of business torts suffered by organizations, as Brown had asserted. It thus again rejected Brown's contention that City Insurance had a duty to defend Brown in the underlying action. 29 On appeal Brown has offered a plethora of arguments in support of its conclusion that the "personal injury" provision covers Westowne's claims. We consider each in turn. 30 1. Plain meaning. 31 Brown asserts that the plain meaning of the "personal injury" provision ("any injury to intangible property sustained by any organization") results in coverage and thus a duty to defend. For Brown the "unambiguous definition of 'personal injury' includes the unmodified and unrestricted concept of injury to intangible property sustained by any organization." 32 Insurance policy language such as this provision is to be given a reasonable reading. Scottish Guarantee Ins. Co., Ltd., 19 F.3d at 309 (citing inter alia School Dist. of Shorewood, 488 N.W.2d at 88-89). The district court correctly concluded that no insuring provision could be so universal. No insurer would cover any conceivable business tort (including intentional wrongs) committed by a world-wide manufacturer and distributor as long as it caused injury to intangible property. The district court reasonably concluded that the phrase "arising out of" or "as a result of" qualified the list of enumerated causes of action but was incorrectly dropped from this poorly drafted provision. The lower court gave the "including but not limited to" language a reasonable reading to preserve the list of claims as representative while recognizing that the provision expanded coverage beyond the original version without doing so in an unlimited manner. The correctness of this conclusion is confirmed when contrasted to Brown's construction, which would render the balance of the provision surplusage. Standard contract construction principles preclude such a result. Olguin, 237 N.W.2d at 697. 33 2. Contra preferentem. 34 Brown submits that whether or not the district court found the personal injury endorsement ambiguous, it improperly construed it against Brown as drafter of the provision. Brown relies here on the doctrine of contra preferentem, which construes a disputed phrase against its drafter. Black's Law Dictionary, p. 327 (6th Ed.). Brown in its motion for reconsideration, rather than the district court, introduced the concept of ambiguity into the contract analysis. The lower court stated it had not found the personal injury provision ambiguous. Even if the provision was vague, the lower court correctly concluded that Brown had drafted it. Moreover, Brown's status as a sophisticated business entity rendered it at least equal to City Insurance, rendering inapplicable the rationale for the doctrine of contra preferentem. For these reasons Brown cannot properly rely on this concept for insurance coverage. 35 3. Ejusdem generis. 36 Brown submits the district court limited coverage to causes of action specifically enumerated in the personal injury provision, improperly restricting the general term (coverage for "any injury to intangible property sustained by any organization"), notwithstanding the clear manifestation of contrary intent. See State v. Campbell, 102 Wis.2d 243, 246, 306 N.W.2d 272, 273 (Ct.App.1981). Brown contends that in doing so the district court improperly applied the doctrine of ejusdem generis. 37 The district court did not refer to the rule of ejusdem generis. As discussed above, we conclude the district court properly interpreted the "including but not limited to" language in the personal injury endorsement. Rather than rendering this phrase meaningless, the district court gave it a reasonable interpretation that preserved its plain meaning as well as that of the list of enumerated causes of action. We find no basis to conclude the district court even applied the rule of ejusdem generis, properly or otherwise. 38 4. Tortious interference with contract. 39 Brown also asserts City Insurance has a duty to defend it because the factual allegations in Westowne's complaint support an arguable claim for tortious interference with contract, one of the offenses specifically enumerated in the personal injury endorsement. 40 Brown's argument rings hollow because, as it recognizes, a claim for tortious interference with contract appears nowhere in Westowne's complaint. The only contract of any type alleged in Westowne's complaint is a contract between Brown and Westowne. Although Wisconsin recognizes a cause of action for tortious interference with contract, one cannot tortiously interfere with one's own contract. Wausau Medical Center v. Asplund, 182 Wis.2d 274, 297, 514 N.W.2d 34, 44 (Ct.App.1994). Further, intent to interfere is a required element of this tort. Cudd v. Crownhart, 122 Wis.2d 656, 659-60, 364 N.W.2d 158, 160 (Ct.App.1985). Westowne never alleges that Brown intentionally interfered with third parties with whom Westowne was dealing. Therefore, Westowne did not allege facts to support a claim for tortious interference with contract. 41 5. Westowne's "unfair competition" claims. 42 Brown creatively contends City Insurance has a duty to defend it because the activity alleged in Westowne's complaint is "like or related to" the causes of action enumerated in the personal injury endorsement. The duty allegedly exists because Westowne's claims and those listed in the provision "are all part of a wide range of activity known as 'unfair competition'." 43 Brown's argument must be rejected for three reasons. First, as we noted above, Westowne's allegations do not amount to a claim for common law unfair competition. Second, Brown identifies the cause of action by its label, which is improper for determining insurance coverage. Curtis-Universal, 43 F.3d at 1122. Third, even if we concluded that Westowne's allegations amounted to a claim for unfair competition, that umbrella concept is not necessarily similar to tortious interference with contractual rights, the cause of action recognized in the personal injury provision.4 III. 44 The district court properly interpreted the two insurance provisions at issue not to cover Westowne's claims against Brown. City Insurance had no duty to defend Brown in the underlying action. Accordingly, the district court's orders are 45 AFFIRMED. 1 In the underlying case the district court granted Brown's summary judgment motion and dismissed Westowne's complaint. Brown's counterclaim against Westowne is pending in the district court 2 The district court applied Wisconsin substantive law. The parties do not dispute this decision on appeal, and a review of the district court's September 8, 1994 order indicates that its choice of law is correct 3 But see Handbook on Insurance Coverage Disputes at p. 285 and citations therein; e.g. Int'l Ins. Co. v. Florists' Mut. Ins. Co., 201 Ill.App.3d 428, 433, 559 N.E.2d 7, 10 (1st Dist.1990) ("advertising" within meaning of endorsement has been defined as widespread distribution of promotional materials to public at large) 4 Both parties have raised other arguments to support affirmance or reversal. We have considered each of those that has been properly presented but none is persuasive or worthy of discussion in this opinion. See, e.g., English v. Cowell, 10 F.3d 434, 440 (7th Cir.1993)	{ "pile_set_name": "FreeLaw" }
851 So.2d 781 (2003) Rita H. JENKINS, Personal Representative of the Estate of James Kelly Goddard, deceased, Appellant, v. W.L. ROBERTS, INC., a Florida Corporation, d/b/a Ace Hardware Appliance & Auto Center, also d/b/a Napa Auto Parts, Appellee. No. 1D02-2815. District Court of Appeal of Florida, First District. July 14, 2003. Rehearing Denied August 14, 2003. 782 William W. Corry, of Law Office of William W. Corry, P.A.; and Sidney L. Matthew, of Gorman & Matthew, P.A., Tallahassee, for appellant. Tammy de Soto Cicchetti and Stephan Lampasso, of The Cicchetti Law Firm, Tallahassee, for appellee. WOLF, C.J. Rita Jenkins appeals from a final summary judgment in favor of the defendant, W.L. Roberts, Inc. in the wrongful death action filed as a result of the death of her 22-year-old son, James Kelly Goddard. Because we find that the undisputed material facts fail to establish a legal duty on behalf of the defendant, we affirm. W.L. Roberts, Inc., appellee, is a retail hardware and auto racing supply store in Crawfordville, Florida which sold nitrous oxide to a customer named Tyler Augat sometime before November 7, 1998. On November 7, 1998, Mr. Augat was a passenger in a car driven by James Kelly Goddard; Mr. Augat and another passenger were inhaling the nitrous oxide (commonly referred to as "huffing") during the ride. Mr. Goddard's vehicle veered off the road, striking a steel I-beam sign pole. Mr. Goddard sustained fatal injuries. The autopsy report showed nitrous oxide in Goddard's system at the time of death. On September 9, 1999, Rita Jenkins, as personal representative of the estate of James Kelly Goddard, filed a complaint against W.L. Roberts, Inc. for the wrongful death of her 22-year-old son. The complaint alleged that Kelly Goddard lost consciousness and crashed his car as a result of inhaling nitrous oxide given to him by his passenger, Mr. Augat, who had purchased the nitrous oxide from W.L. Roberts, Inc. The complaint alleged that W.L. Roberts, Inc. had a duty to take reasonable care to ensure that the nitrous oxide sold at its store would not be used as an inhalant, but would be only used for the lawful purpose of enhancing the engine performance of race cars. The complaint alleged that the defendant breached its duty by failing to take reasonable precautions to ensure that the nitrous oxide sold in its store would be used for its lawful purpose, and that defendant's failure to take such reasonable steps was the proximate cause of Mr. Goddard's death. The defendant answered the complaint, asserting that there was no evidence on the issue of causation to establish that Mr. Goddard inhaled nitrous oxide from the defendant's store while driving; no evidence that Mr. Goddard lost consciousness while driving, causing him to hit a steel pole; and no evidence that even if Mr. Goddard lost consciousness, it was caused by the inhalation of nitrous oxide. The defendant also asserted that the circumstances described in the complaint were not foreseeable as a matter of law given the independent and intervening nature of the events. The court reviewed the pleadings and the deposition transcript of Tyler Augat which contained Mr. Augat's testimony that he purchased nitrous oxide from the defendant's store the day before the accident. He further testified that he was 25 years old at the time of the purchase and that he told the store he was purchasing the nitrous oxide for the purpose of enhancing performance of his automobile for racing. 783 The trial court granted final summary judgment in favor of the defendant relying on Guice v. Enfinger, 389 So.2d 270 (Fla. 1st DCA 1980), and Bryant v. Jax Liquors, 352 So.2d 542 (Fla. 1st DCA 1977), to find that the defendant's sale of nitrous oxide to the passenger in the Goddard vehicle was not foreseeable and was not the proximate cause of Mr. Goddard's death. The court also found that the defendant owed no legal duty to Mr. Goddard. To establish a cause of action for negligence in a wrongful death action, a plaintiff must allege and prove (1) the existence of a legal duty owed to the decedent, (2) breach of that duty, (3) legal or proximate cause of death was that breach, and (4) consequential damages. See, e.g., Fritsch v. Rocky Bayou Country Club, Inc., 799 So.2d 433 (Fla. 1st DCA 2001). The duty element of negligence is a threshold legal question; if no legal duty exists, then no action for negligence may lie. McCain v. Florida Power Corp., 593 So.2d 500 (Fla.1992); Menendez v. Palms West Condo. Ass'n, 736 So.2d 58 (Fla. 1st DCA 1999). In the complaint, Ms. Jenkins alleges that W.L. Roberts, Inc. "had a duty to take reasonable care to ensure that [nitrous oxide] sold at its store # 182, would be used for its lawful purpose of enhancing the engine performance of race cars and not as an inhalant." The complaint alleged no other basis for the existence of a legal duty. The relevant Florida statutes at the time of the sale of nitrous oxide at issue here and Mr. Goddard's death were sections 499.039 and 877.111(2), Florida Statutes (1997). Section 499.039 made it unlawful for a person to sell, deliver, or give to a person under the age of 18 years any compound, liquid, or chemical containing ... nitrous oxide ... for the purpose of inducing by breathing, inhaling, or ingesting a condition of intoxication or which is intended to distort or disturb the auditory, visual, or other physical or mental processes. (Emphasis added.) Section 877.111(2) made it unlawful for any person to possess, buy, sell, or otherwise transfer nitrous oxide for the purpose of inducing or aiding any other person to violate the provisions of the statute.[1] Both statutes require actual knowledge for violation of their provisions. There is no evidence in the record, and the appellant did not allege, that the person who bought the nitrous oxide, Tyler Augat, was under the age of 18 at the time the store sold it to him, and there is no competent evidence in the record that the store sold nitrous oxide to him or anyone under the age of 18 with the knowledge that they intended to inhale it. Although the appellant alleged in paragraphs 11 and 12 of the complaint that the store "knew or should have known" that the nitrous oxide sold to Tyler Augat was intended to be used as an inhalant or that Mr. Augat might distribute the nitrous oxide to others for inhaling, there is no competent evidence in the record that anyone associated with the auto parts store knew that Tyler Augat purchased the nitrous oxide with the intention of inhaling it or with the intention of giving it to a third party to inhale. The affidavits of Kevin Roberts, Walter Roberts, and Beverly Roberts contain sworn statements that there was no such knowledge. Absent special circumstances, there is no legal duty requiring a store to ensure that a product lawfully sold *784 will ultimately be used by a customer or unknown third party for a lawful purpose.[2] We therefore affirm. ERVIN, J., CONCURS; BENTON, J., CONCURS IN RESULT. NOTES [1] Section 877.111, Florida Statutes, was amended effective July 1, 2000, two years after the death of Kelly Goddard, to require a seller of nitrous oxide for automotive enhancement to include sulphur additive to make the gas smell like rotten eggs. [2] Although a legal duty can be created where none existed in limited circumstances (special relationship of the parties, a contract, a violation of a specific statute created by the legislature to protect a class of persons into which the plaintiff falls), see Whelan v. Dacoma Enter., Inc., 394 So.2d 506 (Fla. 5th DCA 1981); Paterson v. Deeb, 472 So.2d 1210 (Fla. 1st DCA 1985), no special relationship was alleged nor is there evidence in the record to establish any special relationship between the hardware store and Kelly Goddard.	{ "pile_set_name": "FreeLaw" }
2017 IL App (3d) 160162 Opinion filed April 5, 2017 _____________________________________________________________________________ IN THE APPELLATE COURT OF ILLINOIS THIRD DISTRICT 2017 EMIL BENZAKRY and EMIL AND SON, ) Appeal from the Circuit Court LLC, ) of the 14th Judicial Circuit, ) Whiteside County, Illinois. Plaintiffs-Appellees and ) Cross-Appellants, ) ) Appeal No. 3-16-0162 v. ) Circuit No. 07LM128 ) PARESH PATEL and KALPITA PATEL, ) ) The Honorable Defendants-Appellants and ) John L. Hauptman, Cross-Appellees. ) Judge, presiding. _____________________________________________________________________________ JUSTICE McDADE delivered the judgment of the court, with opinion. Presiding Justice Holdridge and Justice Schmidt concurred in the judgment and opinion. _____________________________________________________________________________ OPINION ¶1 Plaintiff Emil Benzakry, through his company Emil & Son, LLC, entered into a purchase agreement with defendants Paresh and Kalpita Patel, through their company KAP Family Investments, LLC, to purchase a gas station in Rock Falls, Illinois. The gas station closed, and Benzakry sued for damages. A judgment was entered in favor of Benzakry. Defendants appealed, arguing (1) a claim for veil piercing cannot be tried before a jury, (2) the trial court abused its discretion by allowing the introduction of bank statements without proper foundation, (3) plaintiffs cannot prove fraud because Paresh did not proximately cause Benzakry’s damages, (4) plaintiffs cannot prove fraud because Benzakry did not justifiably rely on Paresh’s alleged misrepresentations, and (5) the corporate veil judgment against Kalpita was against the manifest weight of the evidence. Benzakry cross-appealed, arguing (1) the trial court’s grant of defendant’s motion for a directed verdict was error because plaintiffs are allowed to sue under the Consumer Fraud and Deceptive Business Practices Act (Consumer Fraud Act or Act) (815 ILCS 505/1 et seq. (West 2006)) and (2) the trial court’s denial of plaintiffs’ motion to amend a complaint to conform the pleadings to the proofs was error because there was evidence of a principal-agent relationship. We affirm in part and reverse in part, and the cause is remanded for further proceedings. ¶2 FACTS ¶3 The following facts are undisputed. Plaintiff Benzakry owned multiple businesses in California throughout his career. In 2005, Benzakry sold his last business and started looking on LoopNet 1 for investments to assist him with his living expenses during his retirement. Benzakry came across an advertisement on the LoopNet site that stated the following: “*******TRIPLE NNN LEASE[2]******GAS STATION LOCATED IN ROCK FALLS, IL***Please call for actual location******** Located on a Major exit on the State Highway. Surrounded by Fast Food restaurants like McDonald’s, Arby’s[,] Burger King, Subway. 1 Million Gallon 1 Benzakry testified that LoopNet is “an Internet, commercial Internet, it sells, all sorts of commercials with caps, which is like you can buy McDonald or you can buy a dollar, Family Dollar, or they, they don’t own their buildings, what they, they really do is that they pay you rent. You buy them, then you, you pay rent.” 2 Benzakry testified that NNN lease means “you do nothing. You sit at home and collect money. That’s called an armchair investment.” 2 plus annual sale!!!!!!!!!! $300,000 inside C-store sales!!!!! EPA CLEAN PHASE I conducted!!!!!! 13% CAP RATE!!!!!” ¶4 “K. Patel” was listed in the advertisement as the contact person for inquires, and after several months, Benzakry called the phone number listed. In January 2007, David Levin, a realtor, e-mailed Paresh the following information: “I just visited with Emil and he has just some basic questions which he is going to write up and send to me. I will forward to you for your response. The one that has him more worried about any is this: Who is Singh & Singh LLC? We see no evidence of a personal guarantee so if the businesses goes bad, what leverage does the owner of the Fee have? They seem to have taken your word that everything is good. Some history on the Tenant will be relevant. He would feel more comfortable with a Personal Guarantee and some history of who this gentleman or gentlemen are.” Paresh responded with Benzakry copied on the e-mail, stating: “Singh & Singh LLC is owned by the former manager of my gas station. He has over 10 years of experience in managing gas stations. He was operating the Rock Falls, IL[,] gas station ever since I bought it in 2005. He also managed my other store in Le Claire, IA and in Chicago. I personally know him for the last 8 3 years. Since I knew him personally, I did not ask for a Personal Guarantee on the rental payments in the purchase agreement.” Benzakry received a copy of the lease agreement between Singh & Singh, LLC, and KAP 3 and of the Singhs’ personal financial statements for his review. On January 12, 2007, Benzakry, through his company Emil & Son, entered into a purchase agreement and addendum for the Rock Falls gas station for $521,500. Benzakry was to receive $6000 per month in rent. ¶5 On January 24, Benzakry e-mailed Paresh with questions regarding the purchase of the gas station, and Paresh responded, providing his answers below Benzakry’s questions: “1) who is SING & SING LLC. SINGH & SINGH, LLC is the Tenant of KAP Family Investments, LLC (my corporation). KAP Family Investments, LLC owns the Land, & Building at Rock Falls, IL and SINGH & SINGH, LLC signed a 15 years NNN lease to operate the Gas Station. * 3) according to information David and I received is that SING & SING LLC. operates another two gas stations, we have no evidence of that. SINGH & SINGH, LLC does not operate two gas stations. Mr. Singh was a manager of three gas stations that were owned by me. * 3 In December 2006, KAP (Kalpita is the registered agent and sole member of KAP) and Singh & Singh (owned by Christopher and Anita Singh) entered into a lease agreement with respect to the Rock Falls gas station. 4 5) In what capacity was Mr. sing working for you? Mr. Singh was working as a Manager for the three gas stations that I own. * 7) In all leases I have ever seen, there always is a clause mentioning, “the leasee paid first last and security deposit”, this lease has no mention of that. As I mentioned earlier in the email that I know Mr. Signh personally for the last 8 years and have worked for me for the last 5 years I did not ask any security deposit from him. * 11) I object to have a tenant with an LLC. Unless he also sign a personal guaranty. I can get a personal guarantee signed from the tenant. Attached is the personal guarantee agreement. 12) Because of the above questions, and uncertainties, which were not clear when we signed our agreement, and because of the leasee no proof of owning other gas stations as presumed earlier, I suggest this course of action, a) a personal guaranty to be added, not a problem. b) a security deposit and last moth [sic] rent to be paid, (1 month rent as security deposit and last month rent for a total of $12,000 is reasonable).” 5 ¶6 On January 26, a second addendum to the purchase agreement was executed and included the enforcement of a personal guarantee agreement and security deposit of $12,000. The addendum also contained a clause that stated: “Entire Agreement. This Addenda and Agreement contain the entire agreement between Seller and Buyer, and there are no other terms, conditions, promises, undertakings, statements or representations, either written or oral or expressed or implied, concerning the sale contemplated by this agreement.” (Emphasis added.) ¶7 In February 2007, Benzakry and KAP closed on the gas station. At the time, a guaranty of lease agreement between KAP and Singh & Singh was signed. The agreement stated the following: “1. GUARANTOR jointly, severally and unconditionally guarantees to LESSOR, its successors and assigns, the prompt payment by TENANT of the rents reserved in said LEASE and the performance by TENANT of all provisions and covenants contained in said LEASE for and during the original term of said LEASE and any renewal or renewals, extensions, modifications or amendments thereof; and if any default shall be made by TENANT, GUARANTOR shall pay to LESSOR, its successors or assigns, such sum or sums of money as will be sufficient to make up any such deficiency, and shall satisfy the provisions and covenants by TENANT to be performed.” 6 ¶8 Benzakry received rent for the months of February to April but did not receive rent for the month of May. Benzakry called the station to address this issue, but no one answered. He called David Levin, who went to the gas station and discovered that it was closed. Levin sent pictures of the closed store to Benzakry that depicted an “Out of Gas” sign on the gas tanks and a “Sorry … Closed” sign on the gas station door. ¶9 Singh & Singh entered into an agreement with Emil & Son to relinquish possession of the gas station for failure to pay rent. After relinquishment, Benzakry came to Rock Falls, Illinois, where he continued to operate the establishment as a gas station for about a year and a half, after which time Benzakry turned the establishment into a retail store. 4 Ultimately, Whiteside County seized the store due to illegal actions of the store’s manager. 5 ¶ 10 On August 28, 2007, Emil & Son filed a complaint against Singh & Singh, Christopher Singh, Anita Singh, and Jane Singh, claiming rent and damages. On April 6, 2009, Christopher and Anita Singh and Benzakry and Emil & Son entered into a consent judgment of nondischargability in the amount of $25,000. ¶ 11 In June 2009, Emil & Son filed an amended complaint adding KAP and Paresh as defendants, claiming breach of contract, deceptive practices, and common-law fraud. Discovery commenced, and the matter was set for trial on March 15, 2011. ¶ 12 Emil & Son filed a motion for default judgment against KAP in March 2011, which the trial court granted and ordered KAP to pay $577,307.45. 4 Benzakry testified that he “tried all sorts of other things there to sell. I tried clothing . They go to Walmart to buy whatever I sell so that didn’t work out” and that “I turned it into a check Western Union—what do you call it—agency. And I turned it into a smoke shop.” 5 At trial, Benzakry was asked, “Was she dealing drugs out of that store?” and Benzakry answered, “She was.” 7 ¶ 13 In February 2013, Emil & Son filed a third amended complaint adding Kalpita as a defendant, claiming breach of contract, deceptive practices, and common-law fraud. Another amended complaint was filed in July 2013, adding Benzakry as plaintiff. ¶ 14 At trial, Benzakry testified that the financial strength of the tenant was important in his determination to enter into the purchase agreement. Furthermore, he testified that after he received the Singh & Singh lease and was assured about the tenant’s ability to pay rent by Paresh, Benzakry entered into the purchase agreement with KAP. ¶ 15 Paresh acknowledged that Benzakry was interested in a triple net lease and the financial strength of the tenant when Benzakry inquired about the gas station. He admitted that Christopher Singh had not operated the Rock Falls gas station since 2005, Paresh never owned a gas station in Chicago, and Paresh had not known Christopher Singh for eight years but rather eight months. Also, Paresh admitted that the annual sale of a million gallons of gas and $300,000 of convenience store sales were not the actual but projected figures of the gas station. Paresh further admitted that the figures were not identified as projected in the advertisement. ¶ 16 Christopher Singh testified that Singh & Singh signed a lease to the Rock Falls gas station with KAP in 2007. At the time, he had never managed a gas station, he had not known Paresh for eight years, and he had not worked for Paresh for five years. When he started managing the gas station, he was told that the rent would come out of the profits from the gas station. After two to three months, Singh realized he was not making enough money from the gas station to pay rent and told Paresh about the financial issues. Moreover, Singh testified that Paresh provided him the figures listed in the financial statement given to Benzakry. ¶ 17 Kalpita testified that she and her friend Anjali Agarwel formed KAP. Kalpita could not recall how much money she invested in KAP at the time of formation. Eventually, Kalpita 8 bought Agarwel’s share in KAP and became sole owner. She was not involved in the day-to-day transactions of KAP: “Honestly, this is all day-to-day transactions and my manager, that would be my husband, he used to look after all of this. I can request you ask him and he can answer you better. I mean I have no clue because I was not involved in day-to-day transactions, no.” Kalpita admitted that she transferred funds in the amount of $8500, $31,000, and $40,000 to her other business, Mississippi Marketplace, transferred personal funds into an Amcore Bank account, and transferred money to Guy Culvert, a horse trainer. When asked why payments from the Amcore Bank account were made to the Patels’ horse trainer, Kalpita responded, “Okay. So—I don’t know how to answer this but, if you are having multiple businesses, as a business woman, I will rotate my money to survive, or—I just said, you know, financially you just ask Mr. Paresh Patel[;] he will answer anything.” Also, Kalpita testified that she did not have any corporate records because her husband maintained the records. ¶ 18 Defendants filed a motion for summary judgment as to counts III (breach of contract against Paresh), V (common-law fraud against Paresh), IX (breach of contract against Kalpita), and XI (common-law fraud against Kalpita), as well as a motion to dismiss counts IV (Consumer Fraud Act claim against Paresh) and X (Consumer Fraud Act claim against Kalpita). The trial court denied defendants’ motion to dismiss but granted defendants’ motion for summary judgment as to counts III and IX. ¶ 19 Plaintiffs filed a fourth amended complaint that added an amended count XII, which sought a piercing of the corporate veil and holding Kalpita personally liable for the debts of KAP. ¶ 20 Defendants filed a motion for a directed verdict and a combined motion for judgment notwithstanding the verdict, renewed motion for a directed verdict, and motion for new trial, all 9 of which the trial court denied. Plaintiffs filed a motion to conform the pleadings to the proofs to add a principal-agent claim against Kalpita, which the trial court denied. ¶ 21 The jury found in favor of plaintiffs on counts V (common-law fraud) and XII (piercing the corporate veil), awarded plaintiffs $700,000 in damages, and found Kalpita personally responsible for the debts of KAP. This appeal followed. ¶ 22 ANALYSIS ¶ 23 I. Appeal ¶ 24 A. Corporate Veil Claim ¶ 25 Defendants first argue that the issue of piercing the corporate veil of KAP is for the court to decide, not the jury. Also, because the jury heard the corporate veil claim, the jury was presented substantial evidence that was completely irrelevant to the fraud claim. Thus, the corporate veil and fraud claims should be reversed and remanded for a retrial. Plaintiffs argue that, although Illinois courts have not addressed this issue, there are cases that support the proposition that the issue of piercing the corporate veil is a matter for the jury to decide. In the alternative, plaintiffs claim case law supports the proposition that courts can treat the jury’s decision as advisory and decide whether veil piercing would be appropriate. This appears to be an issue of first impression, as there are no Illinois cases that discuss this issue. ¶ 26 Defendants failed to preserve this issue for review. Dempsey v. Sternik, 147 Ill. App. 3d 571, 580 (1986) (failure to object at the trial level constitutes a waiver unless the failure constitutes fundamental error). The record reveals that defendants did not file a motion to sever the corporate veil claim. In fact, the defendants conceded to the corporate veil claim being tried before a jury when defendants’ attorney stated, “No, I mean I’m not too concerned about the 10 point, I want to make life easier.” Further, at the hearing on defendants’ combined motion, defendants’ attorney stated, “let’s get to the veil piercing issue. Uhm, we screwed up on it. Uhm, all three of us, I think, screwed up on the veil piercing issue. I didn’t put up much of a fight, you got a case, all right, whatever, you got a case.” (Emphasis added.) As a result, we find that defendants waived this issue. However, the waiver rule is a limitation on the parties and not on the reviewing court. Dillon v. Evanston Hospital, 199 Ill. 2d 483, 504-05 (2002). Because this is an issue of first impression, we decline to follow the waiver rule and will address the merits. ¶ 27 The parties have cited various cases to assist in their arguments. Two cases that relate to this case are FMC Finance Corp. v. Murphree, 632 F.2d 413 (5th Cir. 1980), and International Financial Services Corp. v. Chromas Technologies Canada, Inc., 356 F.3d 731 (7th Cir. 2004), both of which address whether a corporate veil claim in a diversity case is tried before a court or jury when applying substantive Illinois law and federal procedural law. ¶ 28 In Murphree, the Fifth Circuit determined that the issue of piercing the corporate veil is one for the jury. Murphree, 632 F.2d at 421 n.5. However, the Seventh Circuit in Chromas Technologies decided not to follow the Fifth Circuit’s decision because it found that the Fifth Circuit’s determination lacked authority to support its assertion. Chromas Technologies, 356 F.3d at 738-39. Instead, the Seventh Circuit found that, under Illinois law, piercing the corporate veil is an equitable claim because the theory is only available to remove injustice or inequity, the application of the theory is a matter of discretion, and the theory does not always result in money damages. Id. at 737. A district court must make an independent judgment as to any equitable issue; therefore, the Seventh Circuit found that, under Illinois law, corporate veil claims are to be determined by the court. Id. at 735, 737. 11 ¶ 29 Although these cases provide guidance, they are restricted to the application of federal procedural law. Therefore, it is important to look to Illinois substantive law and any applicable Illinois procedural law to assist in this analysis. ¶ 30 Illinois courts have established that corporate veil claims are equitable in nature. Buckley v. Abuzir, 2014 IL App (1st) 130469, ¶ 29 (discussing Fontana v. TLD Builders, Inc., 362 Ill. App. 3d 491 (2005), and noting that a corporate veil claim is an equitable remedy); Fontana, 362 Ill. App. 3d at 500 (“ ‘[t]he doctrine of piercing the corporate veil is an equitable remedy’ ” (quoting Peetoom v. Swanson, 334 Ill. App. 3d 523, 527 (2002)), and In re Rehabilitation of Centaur Insurance Co., 238 Ill. App. 3d 292, 300 (1992) (“[t]he doctrine of ‘piercing the corporate veil’ is an equitable remedy” (citing Tilley v. Shippee, 12 Ill. 2d 616, 623 (1958)). ¶ 31 Also, it is well established in Illinois that there is no right to a jury trial in equitable claims. Lazarus v. Village of Northbrook, 31 Ill. 2d 146, 148 (1964) (“There was then and there is now no constitutional right of trial by jury in equity.”); Martin v. Strubel, 367 Ill. 21, 22-23 (1937) (“[i]n this State the guaranty of the right to a jury trial does not extend to cases of equity jurisdiction”); Cooper v. Williams, 60 Ill. App. 3d 634, 635 (1978) (“Except in certain statutorily enumerated situations, the constitutional guaranty of a jury trial applies only to actions known to the common law and is not a matter of right in equity proceedings.”). ¶ 32 However, in Illinois, the trial court does have discretion to direct equitable claims to be heard by a jury. Section 2-1111 of the Code of Civil Procedure states, “The court may in its discretion direct an issue or issues to be tried by a jury, whenever it is judged necessary in any action seeking equitable relief.” 735 ILCS 5/2-1111 (West 2014). Our court has applied this Illinois procedure. Kjellesvik v. Shannon, 41 Ill. App. 3d 674, 678 (1976) (“the granting of a jury trial in equity cases is discretionary with the trial court”). 12 ¶ 33 Here, the record shows that the parties presented arguments on the issue of trying the corporate veil claim before the jury. The trial court stated that it would consider the parties’ arguments and supporting case law and decide whether the claim will be heard before a jury. Afterward, the claim was heard before the jury without objection. In light of the circumstances, the trial court exercised its discretion to bring the corporate veil claim before the jury. Therefore, we find the corporate veil claim was properly tried before a jury pursuant to section 2-1111. ¶ 34 B. Business Records Exception ¶ 35 Defendants argue the court abused its discretion by admitting computer-generated bank records of an account held by KAP without foundation as required by Illinois Rule of Evidence 803(6) (eff. Apr. 26, 2012) and Illinois Supreme Court Rule 236 (eff. Aug. 1, 1992). ¶ 36 Rule 803(6) is applicable in both criminal and civil cases. It states: “The following are not excluded by the hearsay rule, even though the declarant is available as a witness: * (6) Records of Regularly Conducted Activity. A memorandum, report, record, or data compilation, in any form, of acts, events, conditions, opinions, or diagnoses, made at or near the time by, or from information transmitted by, a person with knowledge, if kept in the course of a regularly conducted business activity, and if it was the regular practice of that business activity to make the memorandum, report, record or data compilation *.” Ill. R. Evid. 803(6) (eff. Apr. 26, 2012). 13 ¶ 37 Rule 236 applies exclusively to civil cases. It states: “Any writing or record, whether in the form of any entry in a book or otherwise, made as a memorandum or record of any act, transaction, occurrence, or event, shall be admissible as evidence of the act, transaction, occurrence, or event, if made in the regular course of any business, and if it was the regular course of the business to make such a memorandum or record at the time of such an act, transaction, occurrence, or event or within a reasonable time thereafter. All other circumstances of the making of the writing or record, including lack of personal knowledge by the entrant or maker, may be shown to affect its weight, but shall not affect its admissibility. The term ‘business,’ as used in this rule, includes business, profession, occupation, and calling of every kind.” Ill. S. Ct. R. 236 (eff. Aug. 1, 1992). ¶ 38 For computer-generated records, a party must establish “ ‘the equipment which produced the record is recognized as standard, the entries were made in the regular course of business at or reasonably near the happening of the event recorded and the sources of information, method and time of preparation were such as to indicate their trustworthiness and to justify their admission.’ ” US Bank, National Ass’n v. Avdic, 2014 IL App (1st) 121759, ¶ 25 (quoting Riley v. Jones Brothers Construction Co., 198 Ill. App. 3d 822, 829 (1990)). The standard for determining whether records are admissible as business records is abuse of discretion. Id. ¶ 39 The business record exception requires evidence related to the document’s creation. See Apa v. National Bank of Commerce, 374 Ill. App. 3d 1082 (2007). In Apa, the defendant argued 14 that the plaintiff did not lay a proper foundation for a bank statement needed to meet the business records exception. Id. at 1085-86. Noting that mere retention, without evidence of the document’s creation, does not meet the business records exception, the First District determined that plaintiff did not lay a proper foundation for the exception. Id. at 1088. Specifically, plaintiff only testified to keeping the records in the regular course of business and did not testify to the document’s creation. Id. “Without proper authentication and identification of the document, the proponent of the evidence has not provided a proper foundation and the document cannot be admitted into evidence.” (Internal quotation marks omitted.) Id. ¶ 40 As in Apa, there is no evidence in the record of the instant case that shows the bank statements were made in the regular course of business. Specifically, there is no evidence, through testimony or affidavit, of the bank statement’s creation. Furthermore, there is no evidence in the record, through testimony or affidavit, that shows it was regular practice for Paresh to keep KAP’s bank statements. Therefore, plaintiffs did not meet the business records exception requirements. See Ill. S. Ct. R. 236 (eff. Aug. 1, 1992); Apa, 374 Ill. App. 3d at 1088. ¶ 41 In their brief, defendants mentioned a possible admission of the bank statements under the recorded recollection exception. The requirements for the recorded recollection exception are: “(1) the witness had firsthand knowledge of the recorded event; (2) the written statement was made at or near the time of the event and while the witness had a clear and accurate memory of it; (3) the witness lacks present recollection of the event; and (4) the witness can vouch for the accuracy of the written statement.” 15 (Internal quotation marks omitted.) Kociscak v. Kelly, 2011 IL App (1st) 102811, ¶ 26. See Ill. R. Evid. 803(5) (eff. Apr. 26, 2012). ¶ 42 However, for the same reasons stated above, defendant does not provide any evidence to show that Paresh could attest to the accuracy of the bank statements. Thus, the plaintiffs did not meet the requirements of the recorded recollection exception. See Ill. R. Evid. 803(5) (eff. Apr. 26, 2012). ¶ 43 The trial court’s error in admitting the bank statements without proper foundation will not be overturned if the error was harmless. Lorenz v. Pledge, 2014 IL App (3d) 130137, ¶ 18 (“Where a trial court abuses its discretion in admitting evidence, a reviewing court should grant a new trial only where the error was substantially prejudicial and affected the outcome of the case.” (Internal quotation marks omitted.)). ¶ 44 Although the bank records were relevant to the corporate veil claim, Paresh’s testimony was cumulative. Paresh was cross-examined regarding the issue of commingling funds as evidenced in the bank statements. Kalpita also testified to the commingling of funds seen in the same bank statements without objection on the foundation. We believe defendants were not prejudiced, and therefore, the trial court’s error was harmless. ¶ 45 C. Proximate Result in Fraud Claim ¶ 46 Defendants argue that plaintiffs failed to present evidence that proved plaintiffs suffered damages as a proximate result of Paresh’s alleged misrepresentations. Plaintiffs argue that Paresh’s misrepresentations regarding Singh & Singh’s ability to pay rent were the proximate cause of plaintiffs’ lost rental income. 16 ¶ 47 Defendants request that this court review the trial court’s denial of defendants’ motion for summary judgment or their motion for a directed verdict. “[I]f a motion for summary judgment is improperly denied the error is not reversible for the result becomes merged in the subsequent trial.” Home Indemnity Co. v. Reynolds & Co., 38 Ill. App. 2d 358, 367 (1962). Therefore, only the trial court’s denial of defendants’ motion for directed verdict will be reviewed. ¶ 48 A motion for directed verdict will not be granted unless all of the evidence so overwhelmingly favors the movant that no contrary verdict could stand. Krywin v. Chicago Transit Authority, 238 Ill. 2d 215, 225 (2010). All of the evidence must be construed in the light most favorable to the nonmoving party. Id. The standard of review for a motion for a directed verdict is de novo. Id. ¶ 49 The elements of fraudulent misrepresentation are: “(1) a false statement or omission of material fact; (2) knowledge or belief of the falsity by the party making it; (3) intention to induce the other party to act; (4) action by the other party in reliance on the truth of the statements; and (5) damage to the other party resulting from such reliance.” Weidner v. Karlin, 402 Ill. App. 3d 1084, 1087 (2010). “Proximate cause means any cause which, in natural or probable sequence, produced the injury complained of. It need not be the sole cause or the last or nearest cause.” Capiccioni v. Brennan Naperville, Inc., 339 Ill. App. 3d 927, 937 (2003). The trial court’s finding on a count of fraud will not be disturbed unless it was against the manifest weight of the evidence. Hassan v. Yusuf, 408 Ill. App. 3d 327, 350-51 (2011). ¶ 50 Plaintiffs established proximate cause sufficiently to constitute fraud. Benzakry testified that his purpose for purchasing the gas station was to pursue a triple net lease, which allows a purchaser to collect rent from a tenant. Paresh made representations regarding the tenant’s reliability and trustworthiness when he made statements to Benzakry regarding his relationship 17 with the tenant in an e-mail. Paresh acknowledged in his testimony that some of the representations were false. Shortly after, the tenant was unable to pay the rent due to financial problems with the gas station. In fact, Christopher Singh testified that he had actually been having trouble paying the rent and had told Paresh about it. Benzakry lost rent profits as a direct result of the tenant’s inability to pay the rent. Therefore, we find plaintiffs established proximate cause to constitute fraud. ¶ 51 Also, defendants argue that the jury’s verdict was against the manifest weight of the evidence. A jury’s findings will not be set aside unless it appears that such findings are clearly or palpably against and contrary to the manifest weight of the evidence. Izzo v. Zera, 57 Ill. App. 2d 263, 267 (1965). A verdict cannot be said to be against the manifest weight of the evidence unless an opposite conclusion is clearly evident. Id. at 267-68. Based on the information above, we hold that the jury’s verdict was not against the manifest weight of the evidence. ¶ 52 D. Reliance in Fraud Claim ¶ 53 Defendants argue that plaintiffs failed to present any evidence to prove Paresh’s alleged false statements were material or that plaintiffs justifiably relied on the alleged false statements. Plaintiffs allege that Benzakry sought a triple net lease for the purpose of collecting rental income and the tenant’s ability to pay was important, Paresh made representations about Christopher Singh’s ability to pay the rent, and Benzakry relied on Paresh’s representations. ¶ 54 As stated above, one of the elements of fraudulent misrepresentation requires that the allegedly aggrieved party justifiably relied on the statements made by the other party. Weidner, 402 Ill. App. 3d at 1087. In determining justifiable reliance, courts consider all of the circumstances, including “the parties’ relative knowledge of the facts available, opportunity to 18 investigate the facts and prior business experience.” Hassan, 408 Ill. App. 3d at 350. A party’s reliance is justified when defendant has created a “false sense of security or blocked further inquiry, provided that the facts were not such as to put a reasonable person on inquiry.” Id. Furthermore, “[I]n the absence of circumstances putting a reasonable person on inquiry, that person is justified in relying on a representation without engaging in further inquiry, especially where the misrepresentation concerns matters which may be assumed to be within the knowledge of the party making them.” Id. at 351. The trial court’s finding on a count of fraud will not be disturbed unless it was against the manifest weight of the evidence. Id. at 350-51. As stated above, the trial court’s denial of defendants’ motion for a directed verdict will be reviewed rather than the motion for summary judgment. ¶ 55 Plaintiffs established justifiable reliance sufficiently to constitute fraud. Benzakry testified that his purpose for purchasing the gas station was to pursue a triple net lease, which allowed a purchaser to collect rent from a tenant. Paresh made representations regarding the tenant’s financial reliability and trustworthiness when he made statements regarding his relationship with the tenant to Benzakry in an e-mail. Paresh acknowledged in his testimony that some of the representations were false. Benzakry relied on the misrepresentations because he testified that the reliability of the tenant was important to his decision to purchase a gas station under a net lease. Furthermore, Benzakry testified that the sole purpose of a net lease is for the purchaser to collect rent on the property. Therefore, we determine Benzakry justifiably relied on Paresh’s misrepresentations. ¶ 56 Also, defendants argue that the jury’s verdict was against the manifest weight of the evidence. A jury’s findings will not be set aside unless it appears that such findings are clearly or palpably against and contrary to the manifest weight of the evidence. Izzo v. Zera, 57 Ill. App. 2d 19 263, 267 (1965). A verdict cannot be said to be against the manifest weight of the evidence unless an opposite conclusion is clearly evident. Id. at 267-68. Based on the foregoing analysis on this issue, we find the jury’s verdict was not against the manifest weight of the evidence. ¶ 57 Defendants further argue that plaintiffs cannot rely on any representations that are not in the purchase agreement because plaintiffs signed a nonreliance agreement. Plaintiffs claim the addendum is a standard merger or integration clause, not a nonreliance clause. ¶ 58 Benson v. Stafford, 407 Ill. App. 3d 902 (2010), provides guidance in determining whether the parties’ agreement contained a nonreliance clause. In Benson, defendants argued that a nonreliance clause in the parties’ agreement defeated plaintiff’s claim of reliance. Id. at 921. The clause stated, in relevant part: “ ‘No reliance is placed on any warranty, representation, opinion, advice or assertion of fact made either prior to, contemporaneous with, or after entering into this Agreement, or any amendment or supplement thereto, by any Party or its directors, officers, employees or agents, to any other Party or its directors, officers, employees or agents, except to the extent that the same has been reduced to writing and included as a term of this Agreement *.’ ” (Emphasis added.) Id. at 909. ¶ 59 The First District ruled that the language in the agreement constituted a nonreliance clause. The court distinguished Zimmerman v. Northfield Real Estate, Inc., 156 Ill. App. 3d 154 (1986), noting that the clause in Zimmerman did not contain nonreliance language that existed in the Benson case. Benson, 407 Ill. App. 3d at 927; Zimmerman, 156 Ill. App. 3d at 159 (“neither the Seller, broker nor any of their agents have made representations with respect to any material 20 fact relating to the real estate, its improvements and included personal property unless such representations are in writing”). The court found, inter alia, that language describing a party’s agreement not to rely on any representations determined the existence of a nonreliance clause. Benson, 407 Ill. App. 3d at 927. In other words, Benson held that a nonreliance clause requires inclusion of specific nonreliance language. Id. ¶ 60 In this case, there was no nonreliance language in the clause contained in the parties’ sales agreement. In fact, there is no mention of the word “reliance” or any associated term in the clause. Thus, there is no nonreliance clause in the agreement. Accordingly, we hold the parties’ agreement does not defeat plaintiffs’ fraud claim. ¶ 61 E. Corporate Veil Judgment Against Kalpita Patel ¶ 62 Defendants argue plaintiffs provided no evidence to justify piercing the corporate veil of KAP and holding Kalpita personally liable for KAP’s default judgment. ¶ 63 A jury’s findings will not be set aside unless it appears that such findings are clearly or palpably against and contrary to the manifest weight of the evidence. Izzo v. Zera, 57 Ill. App. 2d 263, 267 (1965). A verdict cannot be said to be against the manifest weight of the evidence unless an opposite conclusion is clearly evident. Id. at 267-68. ¶ 64 A corporation exists separate and distinct from its shareholders, directors, and officers. Jacobson v. Buffalo Rock Shooters Supply, Inc., 278 Ill. App. 3d 1084, 1088 (1996). Generally, the shareholders, directors, and officers are not liable for the corporation’s obligations. Id. The requirements for piercing the corporate veil and holding a shareholder responsible for the corporation’s obligations are “(1) a unity of interest and ownership that causes the separate personalities of the corporation and the individual to no longer exist; and (2) the presence of 21 circumstances under which adherence to the fiction of a separate corporate existence would sanction a fraud, promote injustice or promote inequitable consequences.” Id. ¶ 65 “Courts are reluctant to pierce the corporate veil.” Id. Accordingly, a party seeking to pierce the corporate veil has the burden to make a substantial showing that the shareholder is not acting separately and distinctly from the corporation. Id. Courts look at various factors in determining whether to pierce the corporate veil, including inadequate capitalization, failure to issue stock, failure to observe corporate formalities, nonpayment of dividends, insolvency of the debtor corporation, nonfunctioning of the other officers or directors, absence of corporate records, commingling of funds, diversion of assets from the corporation by or to a shareholder, failure to maintain arm’s length relationships among related entities, and whether the corporation is a mere facade for the operation of the dominant shareholders. Id. ¶ 66 The record discloses that KAP had inadequate capitalization. Singh & Singh signed a lease with KAP in December 2006. By March 2007, KAP was having financial issues because it had made several insufficient fund transactions and the Patels were transferring money into the KAP account, including $17,000 of Paresh’s money to KAP in April 2007. It is inequitable for shareholders to establish and maintain a corporation that carries on business without sufficient assets available to meet its debt. See Stap v. Chicago Aces Tennis Team, Inc., 63 Ill. App. 3d 23, 28-29 (1978) (citing Henry Winthrop Ballantine, Ballantine on Corporations 302-03 (rev. ed. 1946)). ¶ 67 Also, the record shows that Kalpita was a nonfunctioning shareholder. Specifically, Kalpita was the sole member of KAP, but her testimony indicates that she was not involved with the activities of KAP. Kalpita testified that she trusted her husband to handle the finances in the business. When asked about the Amcore Bank statements, Kalpita responded, “Honestly, this is 22 all day-to-day transaction and my manager, that would be my husband, he used to look after all of this. I can request you ask him and he can answer you better. I mean I have no clue because I was not involved in day-to-day transaction, so.” ¶ 68 Lastly, the record shows Kalpita commingled funds. Transactions in the bank statements show money being transferred to the Patels’ horse farm. When asked, “Do you know why the gas station account was paying the horse trainer?” Kalpita responded, “Okay. So—I don’t know how to answer this but, if you are having multiple businesses, as a businesswoman I will rotate my money to survive, or—I just said, you know, financially you just ask Mr. Paresh Patel[;] he will answer anything.” There were also funds in the amount of $8500, $40,000, and $31,000 transferred between the KAP account and the Patels’ other gas station in Le Claire, Iowa, where Kalpita was the sole shareholder. ¶ 69 Based on this information, we determine the jury’s verdict, piercing KAP’s corporate veil and holding Kalpita liable for KAP’s damages, was not against the manifest weight of the evidence. ¶ 70 II. Cross-Appeal ¶ 71 A. Consumer Fraud Act Counts ¶ 72 Plaintiffs argue that the trial court erred when it granted defendants’ motion for a directed verdict as to counts IV (Consumer Fraud Act claim against Paresh) and X (Consumer Fraud Act claim against Kalpita). Specifically, plaintiffs claim that they do not have to prove a misrepresentation involves trade practices addressed to the market generally as once implicated in case law because the 1990 amendment to section 10(a) of the Consumer Fraud Act (Pub. Act 86-801, § 1 (eff. Jan. 1, 1990) (amending 815 ILCS 505/10a (West 1990)) states “proof of public 23 injury, a pattern, or an effect on consumers generally shall not be required.” (Emphasis added.) Pub. Act 86-801, § 1 (eff. Jan. 1, 1990). ¶ 73 The parties dispute whether a misrepresentation must involve trade practices addressed to the market generally pursuant to section 10a of the Consumer Fraud Act. 815 ILCS 505/10a (West 2006). This is an issue of statutory interpretation and is reviewed de novo. Landis v. Marc Realty, L.L.C., 235 Ill. 2d 1, 6 (2009). ¶ 74 The fundamental rule of statutory interpretation is to ascertain and give effect to the intent of the legislature. Ryan v. Board of Trustees of the General Assembly Retirement System, 236 Ill. 2d 315, 319 (2010). The most reliable indicator of that intent is the language of the statute itself. Id. In determining the plain meaning of statutory language, a court will consider the statute in its entirety, the subject the statute addresses, and the apparent intent of the legislature in enacting the statute. Blum v. Koster, 235 Ill. 2d 21, 29 (2009). If the statutory language is clear and unambiguous, it must be applied as written, without resorting to further aids of statutory interpretation. Hendricks v. Board of Trustees of the Police Pension Fund, 2015 IL App (3d) 140858, ¶ 14. ¶ 75 Section 10a states: “Any person who suffers actual damage as a result of a violation of this Act committed by any other person may bring an action against such person. The court, in its discretion may award actual economic damages or any other relief which the court deems proper; provided, however, that no award of punitive damages may be assessed under this Section against a party defendant who is a new vehicle dealer or used vehicle dealer within the meaning of 24 Chapter 5 of the Illinois Vehicle Code or who is the holder of a retail installment contract within the meaning of Section 2.12 of the Motor Vehicle Retail Installment Sales Act, unless the conduct engaged in was willful or intentional and done with evil motive or reckless indifference to the rights of others. Proof of a public injury, a pattern, or an effect on consumers and the public interest generally shall be required in order to state a cause of action under this Section against a party defendant who is a new vehicle dealer or used vehicle dealer within the meaning of Chapter 5 of the Illinois Vehicle Code or who is the holder of a retail installment contract within the meaning of Section 2.12 of the Motor Vehicle Retail Installment Sales Act.” (Emphasis added.) 815 ILCS 505/10a (West 2006). ¶ 76 The statement “[p]roof of a public injury, a pattern, or an effect on consumers generally shall not be required” was added to the statute through Public Act 86-801 (eff. Jan. 1, 1990), but the legislature removed the word “not” in Public Act 89-144 (eff. Jan. 1, 1996) and made “proof of a public injury, a pattern, or an effect on consumers and the public interest generally” required in cases against new or used vehicle dealers. ¶ 77 It seems that when the language was moved, the legislature did not intend to require that a party show proof of public injury generally but added the language further in the paragraph to place emphasis on the requirement to show public injury only in cases against a defendant who is a new or used vehicle dealer. See Grimaldi v. Webb, 282 Ill. App. 3d 174, 182 (1996) (“This amendment is clearly a change in the law, not a mere clarification, as it is specifically carving 25 out actions against vehicle dealers from the rule that proof of public injury or a pattern is not required.”). To insinuate that the legislature now placed a general requirement to show proof of public injury would be departing from the language of the statute, which cannot be done. See Ryan v. Board of Trustees of the General Assembly Retirement System, 236 Ill. 2d 315, 319 (2010) (“[w]here the statutory language is clear and unambiguous, we will enforce it as written and will not read into it exceptions, conditions, or limitations that the legislature did not express”). Therefore, we find the 1996 amendment did not change the meaning of section 10a, and thus, no public injury needs to be proven. ¶ 78 Regardless, we note that there is evidence of public injury because Paresh misrepresented the gasoline and convenience store sales in the advertisement. Paresh placed an advertisement for the purchase of a triple net lease for the gas station on a website accessed by the general public. At trial, Paresh admitted that the annual sale of a million gallons of gas and $300,000 of convenience store sales stated in the advertisement were not actual but projected figures and that he did not disclose that the figures were projected in the advertisement. ¶ 79 Also, defendants argue that plaintiffs cannot bring a suit under the Consumer Fraud Act because defendants do not meet the statutory definitions of “merchandise” and “consumer” under the Consumer Fraud Act. ¶ 80 The Consumer Fraud Act allows purchasers of real estate to bring a claim before the court. In Beard v. Gress, 90 Ill. App. 3d 622, 627 (1980), the Fourth District addressed the issue of whether a domestic purchaser of real estate had standing to sue under the Consumer Fraud Act. The court stated that prior to 1973, section 2 of the Consumer Fraud Act was limited to the sale and advertisement of merchandise. Id. However, after 1973, the General Assembly added the words “trade” and “commerce” to the Act, which broaden the protection “beyond matters 26 connected with the sale or advertisement of merchandise to the conduct of any trade or commerce.” Id. Furthermore, the Act added the word “businessman,” which created an additional protected group. Because of this, the Fourth District concluded that section 2 also protected purchasers of real estate to sue for violations even though they do not meet the definition of “consumer” under the Consumer Fraud Act. “Any other interpretation would give the obviously unintended result of protecting businessmen who purchase real estate but giving no such protection to other citizens who do so.” Thus, we hold plaintiffs can bring a claim against defendants under the Consumer Fraud Act without meeting statutory definitions of “merchandise” and “consumer.” ¶ 81 Next, we determine whether plaintiffs are entitled to judgment under the Consumer Fraud Act. Section 2 of the Consumer Fraud Act states unfair or deceptive acts or practices, including fraud and misrepresentation, are a violation of the Act. 815 ILCS 505/2 (West 2006). To prove deceptive acts or practices, a party must show “(1) a deceptive act or practice by the defendant, (2) the defendant’s intent that plaintiff rely on the deception, (3) the occurrence of the deception during a course of conduct involving trade or commerce, (4) actual damage to the plaintiff [and] (5) proximately caused by the deception.” Ramirez v. Smart Corp., 371 Ill. App. 3d 797, 806 (2007) (citing Avery v. State Farm Mutual Automobile Insurance Co., 216 Ill. 2d 100, 180 (2005)). ¶ 82 We believe defendants engaged in deceptive acts when they knowingly misrepresented information in their advertisement and in their e-mails to Benzakry as stated in detail above. See Siegel v. Levy Organization Development Co., 153 Ill. 2d 534, 543 (1992) (“it is unquestionable that so long as the alleged deception occurred in a course of conduct involving trade or commerce, facts satisfying a claim for common law fraud will necessarily satisfy a claim under 27 the [Consumer Fraud] Act”). Therefore, we grant judgment on counts IV and X in favor of plaintiffs and against defendants. Plaintiffs request that this claim be remanded for the sole purpose of assessing attorney fees. Section 10a of the Consumer Fraud Act grants the trial court discretion to award damages that the court deems proper. 815 ILCS 505/10a (West 2006). Because plaintiffs are eligible for attorney fees, the trial court has the discretion to award attorney fees on remand. ¶ 83 B. Motion to Conform Pleadings to the Proofs ¶ 84 Plaintiffs argue that the trial court erred when it denied their motion to amend the complaint to conform the pleadings to the proofs. In their motion, plaintiffs alleged that Kalpita was the sole member of KAP and that her husband, Paresh, acted as her agent. ¶ 85 Section 2-616(c) states: “A pleading may be amended at any time, before or after judgment, to conform the pleadings to the proofs, upon terms as to costs and continuance that may be just.” 735 ILCS 5/2-616(c) (West 2006). The test is “whether the allowance of the amendment furthers the ends of justice.” American National Bank & Trust Co. of Chicago v. Dozoryst, 256 Ill. App. 3d 674, 678 (1993). This includes whether “the amendments alter[ed] the nature of proof required to defend” and whether “the other party would be prejudiced or surprised.” Id. at 679. “Any doubt as to whether pleadings should be amended should be resolved in favor of an amendment.” Id. The standard of review is abuse of discretion. Cirro Wrecking Co. v. Roppolo, 153 Ill. 2d 6, 24 (1992). ¶ 86 Here, the record shows evidence of a principal-agent relationship. “Under the doctrine of respondeat superior, a principal may be held liable for the negligent actions of an agent that caused a plaintiff’s injury, even if the principal does not himself engage in any conduct in 28 relation to the plaintiff.” Sperl v. C.H. Robinson Worldwide, Inc., 408 Ill. App. 3d 1051, 1057 (2011). Kalpita became the sole member of KAP after buying all the company shares, and Paresh became the sole manager. At various points in her testimony, Kalpita testified that she could not answer certain questions because Paresh kept the business records and handled the day-to-day transactions of the business. Her testimony indicates that she heavily and almost exclusively relied on Paresh to maintain KAP. Based on this information, amending the pleadings would not alter the nature of evidence required to defend the principal-agent claim. ¶ 87 Furthermore, defendants were not prejudiced or surprised by plaintiffs’ principal-agent claim. In fact, plaintiffs included a principal-agent relationship allegation in their fourth amended complaint. In the complaint, under amended count XII, it states: “23. At all times material hereto Defendant Kalpita was either a co-member or the sole member of KAP Family Investments, Inc. 24. As such, she delegated the authority to act on KAP’s behalf to Paresh Patel who acted on behalf of the LLC.” (Emphasis added.) Because defendants were aware of this count, they would not be prejudiced or surprised if the pleadings were amended. Therefore, we determine the trial court erred when it denied plaintiffs’ motion to conform pleadings to the proofs. ¶ 88 Turning to plaintiffs’ request for judgment, we found the record reveals evidence of a principal-agent relationship between Paresh and Kalpita. As stated previously, Kalpita had little involvement with her own business because she trusted her husband to handle the finances in the business, allowed her husband to do all the day-to-day transactions, and allowed him to possess 29 and maintain all the business records. Therefore, we grant judgment in favor of plaintiffs and against defendants on the principal-agent claim. ¶ 89 Defendants argue that plaintiffs’ principal-agent relationship claim is time-barred by the statute of limitations for common-law fraud. However, as plaintiffs have argued, Kalpita’s bankruptcy case tolled the fraud claim during the five-year limitations period. In fact, defendants’ attorney conceded to the tolling, stating: “To save some time, he is right on the bankruptcy tolling thing. So the statute of limitations argument he is right on.” Because of defendants’ attorney’s comment, the trial court excluded the statute of limitations argument from its ruling: “With regard to the Motion to Conform The Pleadings To The Proofs, uhm, with the exception of the argument that the statute of limitations has expired, because Mr. Loftus conceded that argument, with that exception I find more compelling the written and oral arguments made by defense, and accordingly the motion, that post-trial motion is also denied.” (Emphasis added.) Thus, defendant’s argument fails on this issue. ¶ 90 The record is unclear, and the parties have not briefed, regarding the exact calculation of damages as it pertains to KAP’s default judgment and its effect on the $700,000 final judgment. Therefore, we remand this case for a new calculation of damages and costs, including an assessment of attorney fees and any damages related to plaintiffs’ principal-agent claim. ¶ 91 CONCLUSION ¶ 92 The judgment of the circuit court of Whiteside County is affirmed in part and reversed in part, and the cause is remanded for further proceedings. ¶ 93 Affirmed in part and reversed in part; cause remanded. 30	{ "pile_set_name": "FreeLaw" }
132 U.S. 152 (1889) GLENN v. SUMNER. No. 67. Supreme Court of United States. Argued November 5, 1889. Decided November 18, 1889. ERROR TO THE CIRCUIT COURT OF THE UNITED STATES FOR THE WESTERN DISTRICT OF NORTH CAROLINA. 156 Mr. Charles Marshall and Mr. John Howard for plaintiff in error. Mr. S.F. Phillips for defendant in error. MR. JUSTICE GRAY delivered the opinion of the court. The sufficiency and scope of pleadings, and the form and effect of verdicts, in actions at law, are matters in which the Circuit Courts of the United States are governed by the practice of the courts of the State in which they are held. Rev. Stat. § 914; Bond v. Dustin, 112 U.S. 604. By the Code of Civil Procedure of North Carolina, the complaint is required to contain a plain and concise statement of the facts constituting the cause of action, and to have each material allegation distinctly numbered. § 93. The answer must contain "a general or special denial of each material allegation controverted by the defendant, or of any knowledge or information thereof, sufficient to form a belief," and "a statement of any new matter constituting a defence or counterclaim, in ordinary and concise language." § 100. In the absence of a counterclaim, no replication is necessary, unless ordered by the court. § 105. A general verdict is defined to be one "by which the jury pronounce generally upon all or any of the issues." § 232. In the present action, brought by the trustee under an assignment from an insolvent corporation to recover an assessment upon its stock, the allegations concerning the defendant's subscription for shares, and his liability, by reason of his contract of subscription and of the assessment made thereon by a court of chancery, were contained in the second and seventh paragraphs of the complaint, and their truth was specifically denied in the first defence set up in the answer. The pleadings therefore distinctly presented the issue, whether the defendant made the subscription and was liable for the assessment, as well as the issues of the statutes of limitations and of a discharge in bankruptcy. In the record sent up, the verdict unequivocally states that 157 the jury "find all issues in favor of the defendant," and the judgment repeats that "all the issues raised by the pleadings" were so found. This necessarily includes a finding that the defendant was never liable to pay the assessment. This explicit finding cannot be controlled by statements of fact in those parts of the answer which set up as independent defences matters in avoidance, or in a bill of exceptions relating to one of those defences only. Such statements, made for the purpose of presenting the issue to which they relate, are not evidence upon any other issue in the same record. As held by Chief Justice Marshall, sitting in the Circuit Court for the District of North Carolina, where the law authorizes a defendant to plead several pleas, he may use each plea in his defence, and the admissions unavoidably contained in one cannot be used against him in another. Whitaker v. Freeman, 1 Dev. 270, 280. See, also, Knight v. McDouall, 12 Ad. & El. 438, 442; Gould v. Oliver, 2 Man. & Gr. 208, 234; S.C. 2 Scott N.R. 241, 262. The finding of the jury, that the defendant never subscribed for the shares or was liable to pay the assessment, constitutes of itself a conclusive determination of the case in his favor. Consequently, the ruling of the Circuit Court upon the question, stated in the bill of exceptions and principally argued at the bar, of the effect of the discharge in bankruptcy, is wholly immaterial, and cannot have prejudiced the plaintiff, for, however that question should be decided, the defendant would be entitled to judgment upon the verdict. Evans v. Pike, 118 U.S. 241; Moores v. National Bank, 104 U.S. 625; Morisey v. Bunting, 1 Dev. 3. Judgment affirmed.	{ "pile_set_name": "FreeLaw" }
People v Singh (2020 NY Slip Op 03087) People v Singh 2020 NY Slip Op 03087 Decided on May 28, 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 May 28, 2020 Renwick, J.P., Richter, Manzanet-Daniels, Singh, Moulton, JJ. 11582 2922/09 [*1]The People of the State of New York, Respondent, vRabindra Singh, Defendant-Appellant. Janet E. Sabel, The Legal Aid Society, New York (Lorraine Maddalo of counsel), for appellant. Cyrus R. Vance, Jr., District Attorney, New York (Rebecca hausner of counsel), for respondent. Judgment, Supreme Court, New York County (Charles H. Solomon, J.), rendered May 10, 2010, as amended January 21, 2011, convicting defendant, upon his plea of guilty, of criminal possession of stolen property in the third and fourth degrees, and sentencing him, as a second felony offender, to concurrent prison terms of two to four years, unanimously affirmed. The court did not advise defendant that if he was not a United States citizen, he could be deported as a result of his plea, as subsequently required under People v Peque (22 NY3d 168 [2013], cert denied sub nom. Thomas v New York, 574 US 840 [2014]). While the question of whether a defendant was prejudiced by the lack of such advice from the court is generally to be determined by way of a hearing (id. at 200-01; People v Lantigua, ___ AD3d ___, 2020 NY Slip Op 02557 [1st Dept 2020]); People v Martinez, 180 AD3d 190 [1st Dept 2020]), under the unique circumstances of this case, we find no reasonable possibility that defendant could make the requisite showing of prejudice at a hearing. Indeed, at the time that defendant pleaded guilty in 2009, he had been previously twice convicted, a 2010 federal conviction for conspiracy to transport stolen vehicles, and a 2005 grand larceny conviction, which convictions rendered defendant deportable according to federal law. Thus, regardless of whether defendant pleaded guilty to the charges in 2009, had been found guilty after trial or had been acquitted, his status as a deportable non-citizen would not have been affected (see People v Haley, 96 AD3d 1168, 1169 [3d Dept 2012] [defendant's immigration status was not affected by guilty plea because he already was deportable based on his prior convictions]). Accordingly, the alleged failure of the sentencing court to inform him of the immigration consequences of his guilty plea in 2009 did not prejudice defendant in any way. THIS CONSTITUTES THE DECISION AND ORDER OF THE SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT. ENTERED: MAY 28, 2020 CLERK	{ "pile_set_name": "FreeLaw" }
853 F.2d 919 Nabisco Brands, Inc.v.National Labor Relations Board (2 Cases) NOS. 87-3818, 88-3024 United States Court of Appeals,Third Circuit. JUN 20, 1988 1 Appeal From: N.L.R.B. 2 REVIEW DENIED AND ORDER ENFORCED.	{ "pile_set_name": "FreeLaw" }

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